Exhibit 10.19


 


Executive Copy


 


COLLATERAL TRUST AGREEMENT


 


dated as of August 15, 2005


 


among


 


ICO NORTH AMERICA, INC.,


 


ICO GLOBAL COMMUNICATIONS (HOLDINGS) LIMITED,


 


THE GUARANTORS PARTY HERETO FROM TIME TO
TIME,


 


THE BANK OF NEW YORK,
as Trustee under the Indenture,


 


THE BANK OF NEW YORK,

as Collateral Agent


 


and


 


EACH OF THE OTHER PERSONS PARTY HERETO FROM TIME TO TIME


 

















 


TABLE
OF CONTENTS


 


	
   

  	
   

  	
  Page

  
	
   

  	
   

  	
   

  
	
  ARTICLE I                                     DEFINITIONS; PRINCIPLES OF CONSTRUCTION

  	
  2

  
	
  Section 1.1

  	
  Defined Terms

  	
  2

  
	
  Section 1.2

  	
  Rules of
  Interpretation

  	
  21

  
	
   

  	
   

  	
   

  
	
  ARTICLE II                                 THE TRUST ESTATES

  	
  21

  
	
  Section 2.1

  	
  Declaration of First
  Priority Trust

  	
  21

  
	
  Section 2.2

  	
  Declaration of Second
  Priority Trust

  	
  22

  
	
  Section 2.3

  	
  Declaration of Other
  Junior Lien Trust

  	
  23

  
	
  Section 2.4

  	
  Escrow

  	
  24

  
	
  Section 2.5

  	
  Priority of Liens

  	
  24

  
	
  Section 2.6

  	
  Enforcement of Liens

  	
  25

  
	
  Section 2.7

  	
  Special Rights in
  Insolvency Proceedings

  	
  29

  
	
  Section 2.8

  	
  Pledged Collateral Shared
  Equally and Ratably Within Each Class

  	
  30

  
	
  Section 2.9

  	
  Additional Obligations and
  Guarantees

  	
  30

  
	
   

  	
   

  	
   

  
	
  ARTICLE III                             OBLIGATIONS AND POWERS OF COLLATERAL AGENT

  	
  31

  
	
  Section 3.1

  	
  Undertaking of the
  Collateral Agent

  	
  32

  
	
  Section 3.2

  	
  Release or Subordination
  of Liens

  	
  32

  
	
  Section 3.3

  	
  Remedies Upon Actionable
  Default

  	
  32

  
	
  Section 3.4

  	
  Application of Proceeds

  	
  33

  
	
  Section 3.5

  	
  Powers of the Collateral
  Agent

  	
  34

  
	
  Section 3.6

  	
  Documents and
  Communications

  	
  34

  
	
  Section 3.7

  	
  For Sole and Exclusive
  Benefit of Holders of Secured Obligations

  	
  35

  
	
  Section 3.8

  	
  Additional Secured Debt

  	
  35

  
	
   

  	
   

  	
   

  
	
  ARTICLE IV                             VOTING; INTERCREDITOR MATTERS

  	
  35

  
	
  Section 4.1

  	
  Voting

  	
  35

  
	
  Section 4.2

  	
  Intercreditor Decisions

  	
  36

  
	
  Section 4.3

  	
  Purchase of Working
  Capital Facility

  	
  36

  
	
  Section 4.4

  	
  Limitations upon
  Indebtedness

  	
  37

  
	
   

  	
   

  	
   

  
	
  ARTICLE V                                 OBLIGATIONS ENFORCEABLE BY THE COMPANY AND
  THE OTHER OBLIGORS

  	
  38

  
	
  Section 5.1

  	
  Release of Liens

  	
  38

  
	
  Section 5.2

  	
  Delivery of Copies to
  Secured Debt Representatives

  	
  40

  
	
  Section 5.3

  	
  Collateral Agent not
  Required to Serve, File or Record

  	
  41

  
	
   

  	
   

  	
   

  
	
  ARTICLE VI                             IMMUNITIES OF THE COLLATERAL AGENT

  	
  41

  
	
  Section 6.1

  	
  No Implied Duty

  	
  41

  
	
  Section 6.2

  	
  Appointment of Agents and
  Advisors

  	
  41

  
	
  Section 6.3

  	
  Other Agreements

  	
  41

  
	
  Section 6.4

  	
  Solicitation of
  Instructions

  	
  41

  



 


i

















 


	
  Section 6.5

  	
  Limitation of Liability

  	
  42

  
	
  Section 6.6

  	
  Documents in Satisfactory
  Form

  	
  42

  
	
  Section 6.7

  	
  Entitled to Rely

  	
  42

  
	
  Section 6.8

  	
  Secured Debt Default

  	
  42

  
	
  Section 6.9

  	
  Actions by Collateral
  Agent

  	
  42

  
	
  Section 6.10

  	
  Security or Indemnity in
  favor of the Collateral Agent

  	
  43

  
	
  Section 6.11

  	
  Rights of the Collateral
  Agent

  	
  43

  
	
  Section 6.12

  	
  Limitations on Duty of
  Collateral Agent in Respect of Collateral

  	
  43

  
	
  Section 6.13

  	
  Assumption of Rights, Not
  Assumption of Duties

  	
  44

  
	
  Section 6.14

  	
  No Liability for Clean Up
  of Hazardous Materials

  	
  44

  
	
   

  	
   

  	
   

  
	
  ARTICLE VII                         RESIGNATION AND REMOVAL OF THE COLLATERAL
  AGENT

  	
  44

  
	
  Section 7.1

  	
  Resignation or Removal of
  Collateral Agent

  	
  44

  
	
  Section 7.2

  	
  Appointment of Successor
  Collateral Agent

  	
  45

  
	
  Section 7.3

  	
  Succession

  	
  45

  
	
   

  	
   

  	
   

  
	
  ARTICLE VIII                     MISCELLANEOUS PROVISIONS

  	
  46

  
	
  Section 8.1

  	
  Amendment

  	
  46

  
	
  Section 8.2

  	
  Further Assurances

  	
  47

  
	
  Section 8.3

  	
  Successors and Assigns

  	
  48

  
	
  Section 8.4

  	
  Delay and Waiver

  	
  48

  
	
  Section 8.5

  	
  Notices

  	
  49

  
	
  Section 8.6

  	
  Notice of Discharge

  	
  49

  
	
  Section 8.7

  	
  Entire Agreement

  	
  50

  
	
  Section 8.8

  	
  Compensation; Expenses

  	
  50

  
	
  Section 8.9

  	
  Indemnity

  	
  51

  
	
  Section 8.10

  	
  Severability

  	
  51

  
	
  Section 8.11

  	
  Headings

  	
  51

  
	
  Section 8.12

  	
  Obligations Secured

  	
  51

  
	
  Section 8.13

  	
  Governing Law

  	
  52

  
	
  Section 8.14

  	
  Waiver of Jury Trial

  	
  52

  
	
  Section 8.15

  	
  Jurisdiction

  	
  52

  
	
  Section 8.16

  	
  Counterparts

  	
  52

  
	
  Section 8.17

  	
  Effectiveness

  	
  52

  
	
  Section 8.18

  	
  Additional Obligors

  	
  53

  
	
  Section 8.19

  	
  Continuing Nature of this
  Agreement

  	
  53

  
	
  Section 8.20

  	
  Insolvency

  	
  53

  
	
  Section 8.21

  	
  Rights and Immunities of
  Secured Debt Representatives

  	
  53

  
	
  Section 8.22

  	
  No Recourse Against Parent

  	
  53

  



 


EXHIBIT A:  Form of Collateral Trust
Joinder


 


ii

















 


This COLLATERAL TRUST
AGREEMENT (this “Agreement”), dated as of August 15, 2005, is
entered into by and among ICO North America, Inc., a Delaware corporation
(the “Company”); ICO Global Communications (Holdings) Limited, a
Delaware corporation (“Parent”); the Guarantors (as defined below) from
time to time party hereto; The Bank of New York, as collateral agent hereunder
(together with its successors and permitted assigns in such capacity, the “Collateral
Agent”); The Bank of New York, as trustee under the Indenture (as defined
below) (together with its successors and permitted assigns in such capacity,
the “Indenture Trustee”); the lender or administrative agent under the
Loan Agreement (as defined below) which becomes a party hereto by executing and
delivering a Collateral Trust Joinder (together with its successors and
permitted assigns in such capacity, the “Lender”); and each other Person
which becomes a party hereto by executing and delivering a Collateral Trust
Joinder.


 


RECITALS:


 


WHEREAS, the Company
intends to issue $650,000,000 in aggregate principal amount of its 7.5%
Convertible Senior Secured Notes due 2009 (the “Notes”), pursuant to an
Indenture (the “Indenture”), dated as of the date hereof, by and between
the Company and the Indenture Trustee; and


 


WHEREAS, the Company
intends to borrow up to $40,000,000 in aggregate principal amount of first
priority secured working capital loans (the “Working Capital Facility”)
from a provider or providers of working capital financing yet to be identified
pursuant to a loan agreement to be entered among the Company, one or more
Guarantors and one or more lenders,
arrangers and other agents party thereto (the “Loan Agreement”);
and


 


WHEREAS, the Company, Parent and the Guarantors intend
to secure the Notes, the Working Capital Facility and all other Secured
Obligations (as defined herein) with security interests in the collateral
described in security agreements, pledge agreements or other similar
agreements, each dated as of the date hereof and each between the Company,
Parent or a Guarantor and the Collateral Agent (all such collateral and any
future collateral granted to the Collateral Agent as security for the Secured
Obligations, the “Pledged Collateral”); and


 


WHEREAS, pursuant to the
terms of the Indenture, the Company may from time to time incur additional
indebtedness or obligations secured with security interests in or other liens
on the Pledged Collateral; and


 


WHEREAS, this Agreement
sets forth (1) the terms on which the Company has appointed the Collateral
Agent as trustee for the present and future holders of the Secured Obligations
to (a) receive, hold, maintain, administer, and enforce (i) all
Security Documents (as defined herein), and (ii) all interests, rights,
powers and remedies of the Collateral Agent hereunder and thereunder, and (b) distribute
the proceeds of the Pledged Collateral in a manner consistent with the priority
of liens granted under the Security Documents and described herein and (2) various
intercreditor arrangements among the holders of Notes, the Lender and future
holders of secured indebtedness or other obligations.


 


1

















 


AGREEMENT:


 


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 hereto hereby agree as follows:


 


ARTICLE I


DEFINITIONS; PRINCIPLES OF CONSTRUCTION


 


Section 1.1                                      Defined Terms. The
following terms will have the following meanings:


 


(a)                                  “Act of Required Debtholders”
means, as to any matter:


 


(i)                                     at any time prior to the Working
Capital Loan Funding Date, a direction in writing delivered to the Collateral
Agent by or with the written consent of the holders of more than 50% of the
Second Priority Lien Debt as determined in accordance with Article IV;


 


(ii)                                  at any time after the Working
Capital Loan Funding Date, but prior to the Discharge of First Priority Lien
Obligations and prior to the Remedy Bar Lift Trigger Date, a direction in
writing delivered to the Collateral Agent by or with the written consent of the
holders of more than 50% of the First Priority Lien Debt as determined in
accordance with Article IV;


 


(iii)                               at any time after the Working
Capital Loan Funding Date but  prior to
the Discharge of First Priority Lien Obligations and after the Remedy Bar Lift
Trigger Date, a direction in wiring delivered to the Collateral Agent by or
with the written consent of the holders of more than 50% of the First Priority
Lien Debt as determined in accordance with Article IV; provided, however,
that if the holders of the First Priority Lien Debt have not as of the Remedy
Bar Lift Trigger Date submitted any direction (and for purposes of this clause
(iii), a direction not to act shall not be treated as a direction) to the
Collateral Agent above with respect to the exercise of remedies hereunder or
under the Security Documents, a direction in writing delivered to the
Collateral Agent by or with the written consent of  the holders of more than 50% of the Second
Priority Lien Debt as determined in accordance with Article IV;


 


(iv)                              at any time after the Discharge of
First Priority Lien Obligations but prior to the Discharge of Second Priority
Lien Obligations, a direction in writing delivered to the Collateral Agent by
or with the written consent of the holders of more than 50% of the Second
Priority Lien Debt as determined in accordance with Article IV; and


 


(v)                                 unless otherwise agreed in writing
by the holders of Other Junior Lien Debt, at any time after the Discharge of
First Priority Lien Obligations and the Discharge of Second Priority Lien
Obligations, a direction in writing delivered to the Collateral Agent by or
with the written consent of the holders of more than 50% of the Other Junior
Lien Debt as determined in accordance with Article IV.


 


2

















 


For this purpose, Secured Debt registered in the name of, or
beneficially owned by, the Company or any Affiliate of the Company will be
deemed not to be outstanding.


 


(b)                                 “Actionable Default” means:


 


(i)                                     prior to the Working Capital Loan
Funding Date, the occurrence of any event of default under any Second Priority
Lien Document, the result of which is that: (A) the holders of Second
Priority Lien Debt under such Second Priority Lien Document have the right to
declare all of the Secured Obligations thereunder to be due and payable prior
to the stated maturity thereof; or (B) such Secured Obligations
automatically become due and payable prior to the stated maturity thereof;


 


(ii)                                  after the Working Capital Loan
Funding Date, but prior to the Discharge of First Priority Lien Obligations and
prior to the Remedy Bar Lift Trigger Date, the occurrence of any event of
default under any First Priority Lien Document, the result of which is that: (A) the
holders of First Priority Lien Debt under such First Priority Lien Document
have the right to declare all of the Secured Obligations thereunder to be due
and payable prior to the stated maturity thereof; or (B) such Secured
Obligations automatically become due and payable prior to the stated maturity
thereof;


 


(iii)                               after the Working Capital Loan
Funding Date but prior to the Discharge of First Priority Lien Obligations and
after the Remedy Bar Lift Trigger Date, the occurrence of any event of default
under any First Priority Lien Document or under any Second Priority Lien
Document, the result of which is that: (A) the holders of First Priority
Lien Debt or the Second Priority Lien Debt under such First Priority
Lien Document or Second Priority Lien Document, as the case may be, have
the right to declare all of the Secured Obligations thereunder to be due and
payable prior to the stated maturity thereof; or (B) such Secured
Obligations automatically become due and payable prior to the stated maturity
thereof;


 


(iv)                              after the Discharge of First
Priority Lien Obligations but prior to the Discharge of Second Priority Lien
Obligations, the occurrence of any event of default under any Second Priority
Lien Document, the result of which is that: (A) the holders of Second
Priority Lien Debt under such Second Priority Lien Document have the right to
declare all of the Secured Obligations thereunder to be due and payable prior
to the stated maturity thereof; or (B) such Secured Obligations
automatically become due and payable prior to the stated maturity thereof;


 


(v)                                 unless
otherwise agreed in writing by the holders of Other Junior Lien Debt, at any
time after the Discharge of First Priority Lien Obligations and the Discharge
of Second Priority Lien Obligations, the occurrence of any event of default
under any Other Junior Lien Document, the result of which is that: (A) the
holders of Other Junior Lien Debt under such Other Junior Lien Document have
the right to declare all of the Secured Obligations thereunder to be due and
payable prior to the stated maturity thereof; or (B) such Secured
Obligations automatically become due and payable prior to the stated maturity
thereof.


 


3

















 


(c)                                  “Affiliate” of any specified
Person means any other Person directly or indirectly controlling or controlled
by or under direct or indirect common control with such specified Person. For
purposes of this Agreement, “control,” as used with respect to any Person,
means the possession, directly or indirectly, of the power to direct or cause
the direction of the management or policies of such Person, whether through the
ownership of voting securities, by agreement or otherwise; provided,
that beneficial ownership of 10% or more of the Voting Stock of a Person will
be deemed to be control. For purposes of this definition, the terms “controlling,”
“controlled by” and “under common control with” have correlative meanings. Notwithstanding
the foregoing, no Person shall be deemed to be an Affiliate of the Company or
any of its Subsidiaries solely  by reason
of holding Secured Obligations.


 


(d)                                 “Agreement” has the meaning
set forth in the preamble to this Agreement, as such agreement may be
amended, modified, or supplemented from time to time pursuant to its terms and
the terms of the Indenture.


 


(e)                                  “Beneficial Owner” has the
meaning assigned to such term in Rule 13d-3 and Rule 13d-5 under the
Exchange Act, except that in calculating the beneficial ownership of any
particular “person” (as that term is used in Section 13(d)(3) of the
Exchange Act), such “person” will be deemed to have beneficial ownership of all
securities that such “person” has the right to acquire by conversion or
exercise of other securities, whether such right is currently exercisable or is
exercisable only after the passage of time. The terms “Beneficially Owns” and “Beneficially
Owned” have a corresponding meaning.


 


(f)                                    “Board of Directors” means (i) with respect to a
corporation, the board of directors of the corporation or any committee thereof
duly authorized to act on behalf of such board; (ii) with respect to a
partnership, the Board of Directors of the general partner of the partnership; (iii) with
respect to a limited liability company, the managing member or members or any
controlling committee of managing members thereof; and (iv) with respect
to any other Person, the board or committee of such Person serving a similar
function.


 


(g)                                 “Business Day” means any day
other than a Legal Holiday.


 


(h)                                 “Capital Lease Obligation” means, at the time any
determination is to be made, the amount of the liability in respect of a
capital lease that would at that time be required to be capitalized on a
balance sheet prepared in accordance with GAAP, and the Stated Maturity thereof
shall be the date of the last payment of rent or any other amount due under
such lease prior to the first date upon which such lease may be prepaid by
the lessee without payment of a penalty.


 


(i)                                     “Capital Stock”
means, (i) in the case of a corporation, corporate stock; (ii) in the
case of an association or business entity, any and all shares, interests,
participations, rights or other equivalents (however designated) of corporate
stock; (iii) in the case of a partnership or limited liability company,
partnership interests (whether general or limited) or membership interests; and
(iv) any other interest or participation that confers on a Person the
right to receive a share of the profits and losses of, or distributions of
assets of, the issuing Person, but excluding from all of the foregoing any debt
securities convertible into Capital Stock, whether or not such debt securities
include any right of participation with Capital Stock.


 


4

















 


(j)                                     “Cash Equivalents” means (i) United
States dollars, (ii) securities issued or directly and fully guaranteed or
insured by the United States government or any agency or instrumentality of the
United States government (provided, that
the full faith and credit of the United States is pledged in support of those
securities) having maturities of not more than six months from the date of
acquisition, (iii) certificates of deposit and eurodollar time deposits
with maturities of six months or less from the date of acquisition, bankers’
acceptances with maturities not exceeding six months and overnight bank
deposits, in each case with any domestic commercial bank having capital and
surplus in excess of $500,000,000 and a Thompson Bank Watch Rating of “B” or
better, (iv) repurchase obligations with a term of not more than seven
days for underlying securities of the types described in clauses (ii) and (iii) above
entered into with any financial institution meeting the qualifications
specified in clause (iii) above, (v) commercial paper having the
highest rating obtainable from either Moody’s or Standard & Poor’s, in
each case, maturing within six months after the date of acquisition, (vi) AAA-rated
taxable municipal securities having maturities of not more than six months
including, but not limited to, auction rate securities and variable rate demand
notes (for securities where the interest rate resets via a “dutch auction” or “put”
mechanism, the auction date or put date will be used to determine the maturity
date), (vii) U.S. corporate bonds or notes with maturities of not more
than six months and having a minimum long-term credit rating of “A2” by Moody’s
and “A” by Standard & Poor’s, and (viii) money market funds at
least 95% of the assets of which constitute Cash Equivalents of the kinds
described in clauses (i) through (vii) of this definition.


 


(k)                                  “Class” means (i) in the
case of First Priority Lien Debt, every Series of First Priority Lien
Debt, taken together, (ii) in the case of Second Priority Lien Debt, every
Series of Second Priority Lien Debt, taken together, and (iii) in the
case of Other Junior Lien Debt, every Series of Other Junior Lien Debt,
taken together.


 


(l)                                     “Closing Date” means August 15,
2005.


 


(m)                               “Collateral Agent” has the
meaning set forth in the preamble to this Agreement.


 


(n)                                 “Collateral Trust Joinder”
means an agreement substantially in the form of Exhibit A to
this Agreement.


 


(o)                                 “Company” has the meaning set
forth in the preamble to this Agreement, and any and all successors thereto.


 


(p)                                 “Credit Facilities” means one
or more debt facilities or commercial paper facilities, in each case with banks
or other institutional lenders providing for revolving credit loans, term
loans, receivables financing (including through the sale of receivables to such
lenders or to special purpose entities formed to borrow from such lenders
against such receivables) or letters of credit, in each case, as amended,
restated, modified, renewed, refunded, replaced or refinanced (including by
means of sales of debt securities to institutional investors) in whole or in part from
time to time.


 


(q)                                 “Discharge of First Priority Lien
Obligations” means the occurrence of all of the following:


 


5

















 


(i)                                     termination of all commitments to
extend credit that would constitute First Priority Lien Debt;


 


(ii)                                  the (x) payment in full in cash of
the principal of and interest and premium (if any) on all First Priority Lien
Debt (other than any undrawn letters of credit); (y) defeasance in accordance
with the applicable Secured Debt Document (if such document provides for a
release of Liens on the Pledged Collateral upon such defeasance) of all First
Priority Lien Debt (other than any undrawn letters of credit); or (z)
conversion in accordance with the applicable Secured Debt Document (if such
document provides for a release of Liens on the Pledged Collateral upon such
conversion) of all First Priority Lien Debt to Capital Stock in accordance with
the terms of the applicable Secured Debt Document;


 


(iii)                               discharge or cash collateralization
(at 102.5% of the aggregate undrawn amount) of all outstanding letters of
credit constituting First Priority Lien Debt; and


 


(iv)                              payment in full in cash of all other
First Priority Lien Obligations that are outstanding and unpaid at the time the
First Priority Lien Debt is paid in full in cash (other than any obligations
for taxes, costs, indemnifications, reimbursements, damages and other
liabilities in respect of which no claim or demand for payment has been made at
such time).


 


(r)                                    “Discharge of Other Junior Lien
Obligations” means the occurrence of all of the following:


 


(i)                                     termination of all commitments to
extend credit that would constitute Other Junior Lien Debt;


 


(ii)                                  the (x) payment in full in cash of
the principal of and interest and premium (if any) on all Other Junior Lien
Debt (other than any undrawn letters of credit); (y) defeasance in accordance
with the applicable Secured Debt Document (if such document provides for a
release of Liens on the Pledged Collateral upon such defeasance) of all Other
Junior Lien Debt (other than any undrawn letters of credit); or (z) conversion
in accordance with the applicable Secured Debt Document (if such document
provides for a release of Liens on the Pledged Collateral upon such conversion)
of all Other Junior Lien Debt to Capital Stock in accordance with the terms of
the applicable Secured Debt Document;


 


(iii)                               discharge or cash collateralization
(at 102.5% of the aggregate undrawn amount) of all outstanding letters of
credit constituting Other Junior Lien Debt; and


 


(iv)                              payment in full in cash of all other
Other Junior Lien Obligations that are outstanding and unpaid at the time the
Other Junior Lien Debt is paid in full in cash (other than any obligations for
taxes, costs, indemnifications, reimbursements, damages and other liabilities
in respect of which no claim or demand for payment has been made at such time).


 


6

















 


(s)                                  “Discharge of Second Priority
Lien Obligations” means the occurrence of all of the following:


 


(i)                                     termination of all commitments to
extend credit that would constitute Second Priority Lien Debt;


 


(ii)                                  the (x) payment in full in cash of
the principal of and interest and premium (if any) on all Second Priority Lien
Debt (other than any undrawn letters of credit); (y) defeasance in accordance
with the applicable Secured Debt Document (if such document provides for a
release of Liens on the Pledged Collateral upon such defeasance) of all Second
Priority Lien Debt (other than any undrawn letters of credit); or (z)
conversion in accordance with the applicable Secured Debt Document (if such
document provides for a release of Liens on the Pledged Collateral upon such
conversion) of all Second Priority Lien Debt to Capital Stock in accordance
with the terms of the applicable Secured Debt Document;


 


(iii)                               discharge or cash collateralization
(at 102.5% of the aggregate undrawn amount) of all outstanding letters of
credit constituting Second Priority Lien Debt; and


 


(iv)                              payment in full in cash of all other
Second Priority Lien Obligations that are outstanding and unpaid at the time
the Second Priority Lien Debt is paid in full in cash (other than any
obligations for taxes, costs, indemnifications, reimbursements, damages and
other liabilities in respect of which no claim or demand for payment has been
made at such time).


 


(t)                                    “Discharge of Senior Priority
Lien Obligations” means (i) with respect to the Second Priority Lien
Debt, the Discharge of First Priority Lien Obligations, and (ii) with
respect to Other Junior Lien Debt, the Discharge of First Priority Lien
Obligations and the Discharge of Second Priority Lien Obligations.


 


(u)                                 “Equally and Ratably” means,
in reference to sharing of Liens or proceeds thereof as between Secured Parties
of the same Class, that such Liens or proceeds:


 


(i)                                     will be allocated and distributed
first to the Secured Debt Representative for each outstanding Series of
Secured Debt within that Class, for the account of the holders of such Series of
Secured Debt, ratably in proportion to the principal of, and interest and
premium (if any) and reimbursement obligations (contingent or otherwise) with
respect to letters of credit, if any, outstanding (whether or not drawings have
been made under such letters of credit) on, each outstanding Series of
Secured Debt within that Class when the allocation or distribution is
made, and thereafter


 


(ii)                                  will be allocated and distributed
(if any remain after payment in full of all of the principal of, and interest
and premium (if any) and reimbursement obligations (contingent or otherwise)
with respect to letters of credit, if any, outstanding (whether or not drawings
have been made under such letters of credit) on, all outstanding Secured Obligations
within that Class) to the Secured Debt Representative for each outstanding Series of
Secured Obligations within that Class, for the account of the


 


7

















 


holders of any remaining Secured
Obligations within that Class, ratably in proportion to the aggregate unpaid
amount of such remaining Secured Obligations within that Class due and
demanded (with written notice to the applicable Secured Debt Representative and
the Collateral Agent) prior to the date such distribution is made.


 


(v)                                 “Equity Interests” means
Capital Stock, and all warrants, options or other rights to acquire Capital
Stock (but excluding any debt security that is convertible into, or
exchangeable for, Capital Stock).


 


(w)                               “Escrow Agent” has the meaning
given in Section 2.4.


 


(x)                                   “Escrow Agreement” has the
meaning given in Section 2.4.


 


(y)                                 “Escrowed Interest” has the
meaning given in Section 2.4.


 


(z)                                   “Excluded Assets” means any
of the following:


 


(i)                                     Any interest of the Company or any
Obligor in any lease, license, contract, property rights or agreement to which
the Company or any Obligor is a party (or to any of its rights or interests
thereunder) to the extent that the grant of a security interest would (A) constitute
or result in the abandonment, invalidation or unenforceability of any right,
title or interest of the Company or any Obligor therein; (B) constitute or
result in a breach or termination pursuant to the terms of, or a default under,
any such lease, license, contract, property rights or agreement; or (C) require
the consent of any third party, in each case except that to the extent that any
such term would be rendered ineffective pursuant to 

Sections 9-406, 9-407, 9-408 or 9-409 of the UCC;


 


(ii)                                  Any interest of the Company or any
Obligor in any FCC Licenses to the extent (but only to the extent) that at such
time the Collateral Agent may not validly possess a security interest
therein pursuant to applicable Federal law, including the Communications Act of
1934, as amended, and the regulations promulgated thereunder, as in effect at
such time; provided that the proceeds derived from or in connection with the
sale, lease, assignment, transfer or any other disposition of, or assignment of
rights under, the FCC Licenses are not “Excluded Assets;”


 


(iii)                               Any interest of the Company or any
Obligor in any Escrowed Interest, any earnings thereon or Proceeds thereof, or
any securities account or deposit account in which any Escrowed Interest (or
earnings thereon or Proceeds thereof) is held.


 


(aa)                            “FCC”
means the United States Federal Communications Commission.


 


(bb)                          “FCC License” means any
license, authorization, approval, or permit, granted by the FCC pursuant to the
Communications Act of 1934, as amended, to the Company or its Subsidiaries, whether
for or in connection with the construction and/or operation of any System,
including, without limitation, the MSS/ATC FCC License and similar
authorizations.


 


(cc)                            “First Priority Debt
Representative” means:


 


8

















 


(i)                                     in the case of the Loan Agreement,
the lender thereunder or the trustee, agent or other representative of lenders
thereunder that is appointed as a First Priority Debt Representative (for
purposes related to the administration of the Security Documents) pursuant to
the Loan Agreement and has executed a Collateral Trust Joinder; or


 


(ii)                                  in the case of any other Series of
First Priority Lien Debt, the trustee, agent or other representative of the
holders of such Series of First Priority Lien Debt that is appointed as a
First Priority Debt Representative (for purposes related to the administration
of the Security Documents) pursuant to the credit agreement, indenture or other
agreement governing such Series of First Priority Lien Debt and has executed
a Collateral Trust Joinder.


 


(dd)                          “First Priority Debt Sharing
Confirmation” means, as to
any Series of First Priority Lien Debt, the written agreement of the
holders of such Series of First Priority Lien Debt, as set forth in the
credit agreement, indenture or other agreement governing such Series of
First Priority Lien Debt, for the enforceable benefit of all holders of each
other existing and future Series of First Priority Lien Debt, each
existing and future First Priority Debt Representative and the Collateral
Agent, that (i) all First Priority Lien Obligations will be and are
secured Equally and Ratably by all Liens at any time granted by the Company or
any other Obligor to secure any Obligations in respect of such Series of
First Priority Lien Debt, whether or not upon property otherwise constituting
Pledged Collateral, (ii) all such Liens will be enforceable by the
Collateral Agent for the benefit of all holders of First Priority Lien
Obligations Equally and Ratably, and (iii) the holders of Obligations in
respect of such Series of First Priority Lien Debt are bound by the
provisions in this Agreement relating to the order of application of proceeds
from enforcement of such Liens, and consent to and direct the Collateral Agent
to perform its obligations under this Agreement.


 


(ee)                            “First Priority Lien” means a
Lien granted by a Security Document to the Collateral Agent, for the benefit of
the First Priority Secured Parties, upon any property of the Company or any
other Obligor to secure First Priority Lien Obligations.


 


(ff)                                “First Priority Lien Debt”
means:


 


(i)                                     Indebtedness under the Loan
Agreement;


 


(ii)                                  Indebtedness under any other Credit
Facility that is secured by a First Priority Lien; and


 


(iii)                               any other Indebtedness the net
proceeds of which are used to refund, refinance, replace, defease, discharge or
otherwise acquire or retire any other First Priority Lien Debt;


 


provided, that:


 


(w)                               such Indebtedness was
permitted to be incurred and so secured under each applicable Secured Debt
Document (or the lenders under such Indebtedness obtained an Officer’s
Certificate at the time of incurrence to the effect that such


 


9

















 


Indebtedness was permitted to be incurred and so secured under each
applicable Secured Debt Document);


 


(x)                                   on or before the
date on which such Indebtedness is incurred by the Company or the applicable
Subsidiary, such Indebtedness is designated by the Company, in an Officer’s
Certificate delivered to each First Priority Debt Representative and the
Collateral Agent, as “First Priority Lien Debt” for the purposes of this
Agreement and the other First Priority Lien Documents;


 


(y)                                 such Indebtedness is
governed by an agreement that includes a First Priority Debt Sharing
Confirmation, a Lien Priority Confirmation, and an agreement by the holder of
such Indebtedness and the applicable First Priority Debt Representative to vote
with respect to such Indebtedness in accordance with Article IV of
this Agreement; and


 


(z)                                   all requirements set
forth in this Agreement as to the confirmation, grant or perfection of the
Collateral Agent’s Liens to secure such Indebtedness and all Obligations in
respect thereof are satisfied (and the satisfaction of such requirements will
be conclusively established if the Company delivers to the Collateral Agent an
Officer’s Certificate stating that such requirements have been satisfied and
that such Indebtedness is “First Priority Lien Debt”).


 


(gg)                          “First Priority Lien Documents”
means the Loan Agreement, each First Priority Sharing Confirmation, the
Security Documents, each agreement evidencing any other Series of First
Priority Lien Debt and all other agreements governing, securing or relating to
any First Priority Lien Obligations.


 


(hh)                          “First Priority Lien Obligations”
means the First Priority Lien Debt and all other Obligations in respect of
First Priority Lien Debt.


 


(ii)                                  “First Priority Secured Parties”
means the holders of First Priority Lien Obligations and the First Priority
Debt Representatives.


 


(jj)                                  “First Priority Trust Estate”
has the meaning given in Section 2.1.


 


(kk)                            “GAAP” means generally
accepted accounting principles set forth in the opinions and pronouncements of
the Accounting Principles Board of the American Institute of Certified Public
Accountants and statements and pronouncements of the Financial Accounting
Standards Board and the Public Company Accounting Oversight Board or in such
other statements by such other entity as have been approved by a significant
segment of the accounting profession, which are in effect from time to time.


 


(ll)                                  “Guarantee” means a guarantee
(other than by endorsement of negotiable instruments for collection in the
ordinary course of business), direct or indirect, in any manner (including, by
way of a pledge of assets or through letters of credit or reimbursement
agreements in respect thereof) of all or any part of any Indebtedness
(whether arising by virtue of partnership arrangements, or by agreements to
keep-well, to purchase assets, goods, securities or services, to take or pay or
to maintain financial statement conditions or otherwise).


 


10

















 


(mm)                      “Guarantors” means:


 


(i)                                     ICO Satellite Management LLC, ICO
Satellite Services Limited, ICO Services Limited, ICO Global Communications
(Canada) Inc. and ICO Satellite Services GP;


 


(ii)                                  any other Subsidiary of the Company
that becomes a Guarantor under any Secured Debt Document; and


 


(iii)                               their respective successors and
assigns.


 


(nn)                          “Hedging Obligations” means,
with respect to any Person, the obligations of such Person under (i) interest
rate swap agreements entered into solely to provide protection against
movements in interest rates and not for any speculative purpose, interest rate
cap agreements and interest rate collar agreements, (ii) other agreements
or arrangements designed to manage interest rates or interest rate risk, and (iii) other
agreements or arrangements designed to protect such Person against fluctuations
in currency exchange rates or commodity prices.


 


(oo)                          “Indebtedness” means with
respect to any specified Person, any indebtedness of such Person (excluding
accrued expenses and trade payables), whether or not contingent: (i) in
respect of borrowed money; (ii) evidenced by bonds, notes, debentures or
similar instruments or letters of credit (or reimbursement agreements in
respect thereof); (iii) in respect of banker’s acceptances; (iv) representing
Capital Lease Obligations; (v) representing the balance deferred and
unpaid of the purchase price of any property or services; or (vi) representing
any Hedging Obligations. In addition, the term “Indebtedness” includes all
Indebtedness of others secured by a Lien on any asset of the specified Person
(whether or not such Indebtedness is assumed by the specified Person) and, to
the extent not otherwise included, the Guarantee by the specified Person of any
Indebtedness of any other Person.


 


(pp)                          “Indemnified Liabilities”
means any and all liabilities (including all environmental liabilities),
obligations, losses, damages, penalties, actions, judgments, suits, costs,
expenses or disbursements of any kind or nature whatsoever with respect to the
execution, delivery, performance, administration or enforcement of this
Agreement or any of the other Security Documents, including any of the
foregoing relating to the use of proceeds of any Secured Debt or the violation
of, noncompliance with or liability under, any law (including environmental
laws) applicable to or enforceable against the Company or any of its
Subsidiaries or any of the Pledged Collateral and all reasonable costs and
expenses (including reasonable fees and expenses of legal counsel selected by
the Indemnitee) incurred by any Indemnitee in connection with any claim,
action, investigation or proceeding in any respect relating to any of the
foregoing, whether or not suit is brought.


 


(qq)                          “Indemnitee” has the meaning
set forth in Section 8.9(a).


 


(rr)                                “Indenture” has the meaning
set forth in the recitals to this Agreement.


 


(ss)                            “Insolvency Proceeding”
means: (i) any proceeding for the reorganization, recapitalization or
adjustment or marshalling of the assets or liabilities of the Company or any
other Obligor, any receivership or assignment for the benefit of creditors
relating to the


 


11

















 


Company
or any other Obligor or any similar case or proceeding relative to the Company
or any other Obligor or its creditors, as such, including any case under Title
11 of the United States Code or any comparable foreign law equivalent, or any
successor bankruptcy law, in each case whether or not voluntary; provided that
in the case of an involuntary petition in bankruptcy, such petition has not
been discharged within sixty (60) days of its filing; (ii) any
liquidation, dissolution, marshalling of assets or liabilities or other winding
up of or relating to the Company or any other Obligor, in each case whether or
not voluntary and whether or not involving bankruptcy or insolvency; (iii) the
Company or any other Obligor shall shall admit in writing its inability to pay
its debts as they become due or (iv) any other proceeding of any type or
nature in which substantially all claims of creditors of the Company or any
other Obligor are determined and any payment or distribution is or may be
made on account of such claims.


 


(tt)                                “Junior Priority Debt Documents”
mean each agreement evidencing Junior Priority Lien Obligations, the Security
Documents and all other agreements governing, securing or relating to Junior
Priority Lien Obligations.


 


(uu)                          “Junior Priority Debt
Representatives” means (i) with respect to the First Priority Lien
Debt, the Second Priority Debt Representatives and the Other Junior Debt
Representatives, and (ii) with respect to the Second Priority Lien Debt,
the Other Junior Debt Representatives.


 


(vv)                          “Junior Priority Lien” means (i) with
respect to the First Priority Secured Parties, the Second Priority Lien and the
Other Junior Liens, and (ii) with respect to the Second Priority Secured
Parties, the Other Junior Liens.


 


(ww)                      “Junior Priority Lien Obligations”
means, with respect to a Junior Priority Secured Party, the Obligations owed to
such Person.


 


(xx)                              “Junior Priority Secured Parties”
means (i) with respect to the First Priority Secured Parties, the Second
Priority Secured Parties and the Other Junior Secured Parties, and (ii) with
respect to the Second Priority Secured Parties, the Other Junior Secured
Parties.


 


(yy)                          “Legal Holiday” means a
Saturday, a Sunday or a day on which banking institutions in The City of New York
or at a place of payment are authorized by law, regulation or executive order
to remain closed.


 


(zz)                              “Lender” has the meaning set
forth in the preamble hereto.


 


(aaa)                      “Lien” means, with respect to any asset, any mortgage, lien,
pledge, charge, security interest or encumbrance of any kind in respect of such
asset, whether or not filed, recorded or otherwise perfected under applicable
law, including any conditional sale or other title retention agreement, any
lease in the nature thereof, any option or other agreement to sell or give a
security interest in and any filing of or agreement to give any financing
statement under the UCC (or equivalent statutes) of any jurisdiction.


 


(bbb)                   “Lien Priority Confirmation”
means:


 


12

















 


(i)                                     as to any Series of First
Priority Lien Debt, the written agreement of the holders of such Series of
First Priority Lien Debt, as set forth in the credit agreement, indenture or
other agreement governing such Series of First Priority Lien Debt, for the
enforceable benefit of all holders of each existing and future holders of
Permitted Prior Liens and the Collateral Agent, to be bound by the provisions
of this Agreement;


 


(ii)                                  as to any Series of Second
Priority Lien Debt, the written agreement of the holders of such Series of
Second Priority Lien Debt, as set forth in the credit agreement, indenture or
other agreement governing such Series of Second Priority Lien Debt, for
the enforceable benefit of all holders of each existing and future holders of
Permitted Prior Liens, each existing and future Series of First Priority
Lien Debt, each existing and future First Priority Debt Representative and the
Collateral Agent, to be bound by the provisions of this Agreement; and


 


(iii)                               as to any Series of Other
Junior Lien Debt, the written agreement of the holders of such Series of
Other Junior Lien Debt, as set forth in the credit agreement, indenture or
other agreement governing such Series of Other Junior Lien Debt, for the
enforceable benefit of all holders of all existing and future Permitted Prior
Liens, of each existing and future Series of First Priority Lien Debt,
each existing and future Series of Second Priority Lien Debt, each
existing and future First Priority Debt Representative, each existing and
future Second Priority Debt Representative and the Collateral Agent, to be
bound by the provisions of this Agreement.


 


(ccc)                      “Loan Agreement” has the
meaning set forth in the recitals to this Agreement.


 


(ddd)                   “Mobile Communications System”
means any specialized mobile radio system, radio paging system, mobile
telephone system, cellular radio telecommunications system, conventional mobile
telephone system, personal communications system, data transmission system or
other radio communications system.


 


(eee)                      “New Secured Debt” has the
meaning given in Section 2.9.


 


(fff)                            “Notes” has the meaning set
forth in the recitals to this Agreement.


 


(ggg)                   “Notice of Actionable Default”
means a written notice given to the Collateral Agent stating that an Actionable
Default has occurred and is continuing.


 


(hhh)                   “Obligations” means, with
respect to any Indebtedness of any Person (collectively, without duplication):


 


(i)                                     all debt, financial liabilities and
obligations of such Person of whatsoever nature and howsoever evidenced
(including principal, interest (including interest accruing, at the then
applicable rate, after the filing of any petition in bankruptcy or the
commencement of any Insolvency Proceeding, whether or not a claim for
post-filing or post-petition interest is allowed  in such proceeding), fees, reimbursement
obligations, cash cover obligations, penalties, indemnities and legal and other
expenses,


 


13

















 


whether due after acceleration or
otherwise) to the providers or holders of such Indebtedness or to any agent,
trustee or other representative of such providers or holders of such
Indebtedness under or pursuant to each agreement, document or instrument
evidencing, securing, guaranteeing or relating to such Indebtedness, financial
liabilities or obligations relating to such Indebtedness (including Secured
Debt Documents applicable to such Indebtedness (if any)), in each case, direct
or indirect, primary or secondary, fixed or contingent, now or hereafter arising
out of or relating to any such agreement, document or instrument;


 


(ii)                                  any and all sums paid or advanced by
the Collateral Agent or any other Person in order to preserve the Pledged
Collateral or any other collateral securing such Indebtedness or to preserve
the Liens and security interests in the Pledged Collateral or any other
collateral securing such Indebtedness; and


 


(iii)                               the costs and expenses of collection
and enforcement of the obligations referred to in clauses (i) and (ii),
including: (A) the costs and expenses of retaking, holding, preparing for
sale or lease, selling or otherwise disposing of or realizing on any Pledged
Collateral or any other collateral; (B) the costs and expenses of any
exercise by the Collateral Agent or any other Person of its rights under the
Security Documents or any other security documents; and (C) reasonable
attorneys’ fees and expenses and court costs.


 


(iii)                               “Obligor” means the Company
and each other Person (if any) that at any time provides collateral security
for any Secured Debt Obligations.


 


(jjj)                               “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 two officers of the
Company, who must be the President, the Chief Executive Officer, the Chief
Financial Officer, the Treasurer or other principal accounting officer,
including: (i) a statement that the Person making such certificate or
opinion has read such covenant or condition; (ii) a brief statement as to
the nature and scope of the examination or investigation upon which the
statements or opinions contained in such certificate or opinion are based; (iii) a
statement that, in the opinion of such Person, he or she has made such
examination or investigation as is necessary to enable him or her to express an
informed opinion as to whether or not such covenant or condition has been
satisfied; and (iv) a statement as to whether or not, in the opinion of
such Person, such condition or covenant has been satisfied.


 


(kkk)                      “Other Junior Debt Representative”
means the trustee, agent or other representative for the holders of a Series of
Other Junior Lien Debt that is appointed as an Other Junior Debt Representative
(for purposes related to the administration of the Security Documents) pursuant
to the credit agreement, indenture or other agreement governing such Other
Junior Lien Debt and has executed a Collateral Trust Joinder.


 


(lll)                               “Other Junior Lien” means a
Lien granted by a Security Document to the Collateral Agent, for the benefit of
the Other Junior Secured Parties, upon any property of the Company or any other
Obligor to secure Other Junior Lien Obligations.


 


14

















 


(mmm)             “Other Junior Lien Debt” means Third Party
Subordinated Indebtedness secured by the property and assets of the Company; provided,
that


 


(i)                                     all such property and assets must be
part of the Pledged Collateral and any such Liens must be junior to all
First Priority Liens and Second Priority Liens in accordance with the terms
hereof;


 


(ii)                                  such Indebtedness was permitted to
be incurred and so secured under each applicable Secured Debt Document (or the
lenders under such Indebtedness obtained an Officer’s Certificate at the time
of incurrence to the effect that such Indebtedness was permitted to be incurred
and so secured under each applicable Secured Debt Document);


 


(iii)                               on or before the date on which such
Indebtedness is incurred by the Company or the applicable Subsidiary, such
Indebtedness is designated by the Company, in an Officer’s Certificate
delivered to each Other Junior Debt Representative and the Collateral Agent, as
“Other Junior Lien Debt” for the purposes of this Agreement and the other Other
Junior Lien Documents;


 


(iv)                              such Indebtedness is governed by an
agreement that includes an Other Junior Lien Sharing Confirmation, a Lien
Priority Confirmation, and an agreement by the holder of such Indebtedness to
vote with respect to such Indebtedness in accordance with Article IV
of this Agreement; and


 


(v)                                 all requirements set forth in this
Agreement as to the confirmation, grant or perfection of the Collateral Agent’s
Liens to secure such Indebtedness and all Obligations in respect thereof are
satisfied (and the satisfaction of such requirements will be conclusively
established if the Company delivers to the Collateral Agent an Officer’s
Certificate stating that such requirements have been satisfied and that such
Indebtedness is “Other Junior Lien Debt”).


 


(nnn)                   “Other Junior Lien Debt Sharing
Confirmation” means, as to
any Series of Other Junior Lien Debt, the written agreement of the holders
of such Series of Other Junior Lien Debt, as set forth in the indenture or
other agreement governing such Series of Other Junior Lien Debt, for the
enforceable benefit of all holders of each other existing and future Series of
Other Junior Lien Debt, each existing and future Other Junior Debt
Representative and the Collateral Agent, (i) setting forth the priority of
such Series of Other Junior Lien Debt in relation to all Other Junior Lien
Obligations with respect to sharing of proceeds of Pledged Collateral, voting
and other matters under this Agreement, and (ii) providing that the
holders of Obligations in respect of such Series of Other Junior Lien Debt
are bound by the provisions in this Agreement relating to the order of
application of proceeds from enforcement of such Liens, and consent to and
direct the Collateral Agent to perform its obligations under this
Agreement.


 


(ooo)                   “Other Junior Lien Documents”
means each agreement evidencing Other Junior Lien Debt and all other agreements
governing, securing or relating to any Other Junior Lien Obligations.


 


15

















 


(ppp)                   “Other Junior Lien Obligations”
means the Other Junior Lien Debt and all other Obligations in respect of Other
Junior Lien Debt.


 


(qqq)                   “Other Junior Lien Trust Estate”
has the meaning given in Section 2.3.


 


(rrr)                            “Other Junior Secured Parties”
means the holders of Other Junior Lien Obligations and the Other Junior Debt
Representatives.


 


(sss)                      “Parent” has the meaning
given in the preamble to this Agreement.


 


(ttt)                            “Permitted Prior Liens” means
(i) Liens to secure the performance of statutory obligations, performance
bonds or other obligations of a like nature; (ii) Liens for taxes,
assessments or governmental charges or claims that are not yet delinquent or
that are being contested in good faith by appropriate proceedings promptly
instituted and diligently concluded; and (iii) Liens imposed by law, such
as carriers’, warehousemen’s, materialmans’, landlord’s and mechanics’ Liens; provided,
however, that in each case such Liens shall be Permitted Prior Liens
only to the extent that under applicable law or contract such Liens are
entitled to priority over the Liens granted by the Security Documents.


 


(uuu)                   “Person” means any
individual, corporation, partnership, joint venture, association, joint-stock
company, trust, unincorporated organization, limited liability company or
government or other entity.


 


(vvv)                   “Pledged Collateral” has the
meaning set forth in the recitals to this Agreement.


 


(www)             “Remedy Bar Lift Trigger Date” means, at any
time prior to the Discharge of First Priority Lien Obligations and after the
occurrence of an event of default as defined in and under any Second Priority
Lien Document, the earlier of (i) the date that is 180 days after the
occurrence of such event of default and (ii) the date of the commencement
of any Insolvency Proceeding in respect of the Company or any Obligor.


 


(xxx)                         “Responsible
Officer” means, with respect to the Collateral Agent or any Secured
Debt Representative, any officer within the corporate trust department of the
Collateral Agent or such Secured Debt Representative, as the case may be,
including any managing director, director, vice president, assistant vice
president, associate, trust officer or any other officer of the Collateral
Agent or such Secured Debt Representative, as the case may be, who
customarily performs functions similar to those performed by the Persons who at
the time will be such officers, respectively, or to whom any corporate trust
matter is referred because of such Person’s knowledge of and familiarity with
the particular subject and who will have direct responsibility for the administration
of this Agreement.


 


(yyy)                   “Second Priority Debt
Representative” means:


 


(i)                                     in the case of the Notes, the
Indenture Trustee; or


 


(ii)                                  in the case of any other Series of
Second Priority Lien Debt, the trustee, agent or other representative of the holders
of such Series of Second Priority Lien


 


16

















 


Debt that is appointed as a Second
Priority Debt Representative (for purposes related to the administration of the
Security Documents) pursuant to the credit agreement, indenture or other
agreement governing such Series of Second Priority Lien Debt and has
executed a Collateral Trust Joinder.


 


(zzz)                         “Second Priority Debt Sharing
Confirmation” means, as to
any Series of Second Priority Lien Debt, the written agreement of the
holders of such Series of Second Priority Lien Debt, as set forth in the
indenture or other agreement governing such Series of Second Priority Lien
Debt, for the enforceable benefit of all holders of each other existing and
future Series of Second Priority Lien Debt, each existing and future
Second Priority Debt Representative and the Collateral Agent, that (i) all
Second Priority Lien Obligations will be and are secured Equally and Ratably by
all Liens at any time granted by the Company or any other Obligor to secure any
Obligations in respect of such Series of Second Priority Lien Debt,
whether or not upon property otherwise constituting Pledged Collateral, (ii) all
such Liens will be enforceable by the Collateral Agent for the benefit of all
holders of Second Priority Lien Obligations Equally and Ratably, and (iii) the
holders of Obligations in respect of such Series of Second Priority Lien
Debt are bound by the provisions in this Agreement relating to the order of
application of proceeds from enforcement of such Liens, and consent to and
direct the Collateral Agent to perform its obligations under this
Agreement.


 


(aaaa)                “Second Priority Lien Documents” means the
Indenture, the Notes, each Second Priority Sharing Confirmation, the Security Documents,
each agreement evidencing any other Series of Second Priority Lien Debt
and all other agreements governing, securing or relating to any Second Priority
Lien Obligations.


 


(bbbb)            “Second Priority Lien” means a Lien granted by
a Security Document to the Collateral Agent, for the benefit of the Second
Priority Secured Parties, upon any property of the Company or any other Obligor
to secure Second Priority Lien Obligations.


 


(cccc)                “Second Priority Lien Debt” means:


 


(i)                                     the Notes issued on the Closing Date
and any other Notes issued pursuant to the Indenture;


 


(ii)                                  subject to the provisions of Section 4.4(a)(iii),
Indebtedness under any other Credit Facility that is secured by a Second
Priority Lien; and


 


(iii)                               any other Indebtedness the net
proceeds of which are used to refund, refinance, replace, defease, discharge or
otherwise acquire or retire any other Second Priority Lien Debt;


 


provided, that in the case of any Indebtedness
referred to in clause (ii) or (iii) of this definition:


 


(w)                               such Indebtedness was
permitted to be incurred and so secured under each applicable Secured Debt
Document (or the lenders under such Indebtedness obtained an Officer’s
Certificate at the time of incurrence to the effect that such Indebtedness was
permitted to be incurred and so secured under each applicable Secured Debt
Document);


 


17

















 


(x)                                   on or before the
date on which such Indebtedness is incurred by the Company or the applicable
Subsidiary, such Indebtedness is designated by the Company, in an Officer’s
Certificate delivered to each Second Priority Debt Representative and the
Collateral Agent, as “Second Priority Lien Debt” for the purposes of this
Agreement and the other Second Priority Lien Documents;


 


(y)                                 such Indebtedness is
governed by an agreement that includes a Second Priority Sharing Confirmation,
a Lien Priority Confirmation, and an agreement by the holder of such
Indebtedness and the applicable Second Priority Debt Representative to vote
with respect to such Indebtedness in accordance with Article IV of
this Agreement; and


 


(z)                                   all requirements set
forth in this Agreement as to the confirmation, grant or perfection of the
Collateral Agent’s Liens to secure such Indebtedness and all Obligations in
respect thereof are satisfied (and the satisfaction of such requirements will
be conclusively established if the Company delivers to the Collateral Agent an
Officer’s Certificate stating that such requirements have been satisfied and
that such Indebtedness is “Second Priority Lien Debt”).


 


(dddd)            “Second Priority Lien Obligations” means the
Second Priority Lien Debt and all other Obligations in respect of Second
Priority Lien Debt.


 


(eeee)                “Second Priority Secured Parties” means the
holders of Second Priority Lien Obligations and the Second Priority Debt
Representatives.


 


(ffff)                        “Second Priority Trust Estate”
has the meaning set forth in Section 2.2.


 


(gggg)            “Secured Debt” means First Priority Lien Debt,
Second Priority Lien Debt and Other Junior Lien Debt.


 


(hhhh)            “Secured Debtholder” means, at any time, a
Person that is at that time the holder of any Secured Debt or has any
commitment with respect to any Secured Debt or the issuance of any letters of
credit under any Secured Debt Document or the making of any loans under any
Secured Debt Document.


 


(iiii)                            “Secured Debt Default” means
any event or condition which, under the terms of any Secured Debt Document,
causes, or permits holders of Secured Debt outstanding thereunder (with or
without the giving of notice or lapse of time, or both, and whether or not
notice has been given or time has lapsed) to cause, the Secured Debt
outstanding thereunder to become immediately due and payable.


 


(jjjj)                            “Secured Debt Documents”
means the First Priority Lien Documents, the Second Priority Lien Documents and
the Other Junior Lien Documents.


 


(kkkk)                “Secured Debt Representative” means each First
Priority Debt Representative, each Second Priority Debt Representative and each
Other Junior Debt Representative.


 


18

















 


(llll)                            “Secured Obligations” means
the First Priority Lien Obligations, the Second Priority Lien Obligations and
the Other Junior Lien Obligations.


 


(mmmm)    “Secured Obligations Termination Date” means
the date on which all actions required to be taken and all amounts required to
be paid for the Discharge of the First Priority Lien Obligations, the Discharge
of the Second Priority Lien Obligations and the Discharge of the Other Junior
Lien Obligations have been so taken or paid.


 


(nnnn)            “Secured Parties” means the First Priority
Secured Parties, the Second Priority Secured Parties and the Other Junior
Secured Parties.


 


(oooo)            “Security Agreement” means an agreement or
agreements by an Obligor in favor of the Collateral Agent granting a security
interest and pledge in assets and properties (other than Excluded Assets) of
the Obligor, whether owned at any relevant time or thereafter acquired.


 


(pppp)            “Security Documents” means this Agreement and
all other security agreements, pledge agreements, collateral assignments,
mortgages, collateral agency agreements, control agreements, deeds of trust or
other grants or transfers for security executed and delivered by the Company or
any other Obligor creating (or purporting to create) a Lien upon Pledged
Collateral in favor of the Collateral Agent, for the benefit of the Secured
Parties, in each case, as amended, supplemented, amended and restated or
otherwise modified and in effect from time to time in accordance with its
terms.


 


(qqqq)            “Senior Priority Debt Representatives” means (i) with
respect to the Second Priority Lien Debt, the First Priority Debt
Representatives, and (ii) with respect to the Other Junior Lien Debt, the
First Priority Debt Representatives and the Second Priority Debt Representatives.


 


(rrrr)                        “Senior Priority Lien” means (i) with
respect to the Second Priority Secured Parties, Permitted Prior Liens and First
Priority Liens, and (ii) with respect to the Other Junior Secured Parties,
Permitted Prior Liens, First Priority Liens and Second Priority Liens.


 


(ssss)                “Senior Priority Lien Documents” each agreement
evidencing Senior Priority Lien Obligations, the Security Documents and all
other agreements governing, securing or relating to any Senior Priority Lien
Obligations.


 


(tttt)                        “Senior Priority Lien Obligations”
means, with respect to a Senior Priority Secured Party, the Obligations owed to
such Person.


 


(uuuu)            “Senior Priority Secured Parties” means (i) with
respect to the Second Priority Secured Parties, the First Priority Secured
Parties, and (ii) with respect to the Other Junior Secured Parties, the
First Priority Secured Parties and the Second Priority Secured Parties.


 


(vvvv)            “Series of First Priority Lien Debt”
means, severally, the Indebtedness incurred under the Loan Agreement and each
other issue or series of First Priority Lien Debt incurred under one or
more related documents.


 


19

















 


(wwww)    “Series of Second Priority Lien Debt”
means, severally, the Indebtedness incurred under the Indenture and the Notes
and each other issue or series of Second Priority Lien Debt incurred under
one or more related documents.


 


(xxxx)                    “Series of Other Junior Lien
Debt” means, severally, each issue or series of Other Junior Lien Debt
incurred under one or more related documents.


 


(yyyy)            “Series of Secured Debt” means, severally,
each Series of First Priority Lien Debt, each series of Second
Priority Lien Debt and each Series of Other Junior Lien Debt.


 


(zzzz)                    “Stated Maturity” means, with
respect to any installment of interest or principal on any series of
Indebtedness, the date on which the payment of interest or principal was
scheduled to be paid in the documentation governing such Indebtedness as of the
date of this Indenture, and will not include any contingent obligations to
repay, redeem or repurchase any such interest or principal prior to the date
originally scheduled for the payment thereof.


 


(aaaaa)          “Subsidiary” means, with respect to any
specified Person: (i) any corporation, association or other business
entity of which more than 50% of the total voting power of shares of Capital
Stock entitled (without regard to the occurrence of any contingency and after
giving effect to any voting agreement or stockholders’ agreement that
effectively transfers voting power) to vote in the election of directors,
managers or trustees of the corporation, association or other business entity
is at the time owned or controlled, directly or indirectly, by that Person or
one or more of the other Subsidiaries of that Person (or a combination
thereof); and (ii) any partnership (a) the sole general partner or
the managing general partner of which is such Person or a Subsidiary of such
Person or (b) the only general partners of which are that Person or one or
more Subsidiaries of that Person (or any combination thereof).


 


(bbbbb)     “Third Party Subordinated Indebtedness” means
Indebtedness loaned to the Company or a Subsidiary of the Company by a Person
other than an Affiliate of the Company that is contractually subordinated in right of payment and in all other
respects to the First Priority Lien Obligations and the Second Priority Lien
Obligations and is otherwise in the form required by the Secured Debt
Documents.


 


(ccccc)          “Trust Estates” has the meaning set forth in Section 2.3.


 


(ddddd)     “UCC” means the Uniform Commercial Code as
in effect in the State of New York or any other applicable jurisdiction.


 


(eeeee)          “Voting Stock” of any specified Person as of
any date means the Capital Stock of such Person that is at the time entitled to
vote in the election of the Board of Directors of such Person.


 


(fffff)                    “Working Capital Loan Funding
Date” means the date of the initial borrowing or draw by the Company under
the Loan Agreement.


 


(ggggg)     “Working Capital Facility” has the meaning set
forth in the recitals to this Agreement.


 


20

















 


Section 1.2                                      Rules of
Interpretation.


 


(a)                                  All terms used in this Agreement
that are defined in Article 9 of the UCC and not otherwise defined herein
have the meanings therein set forth.


 


(b)                                 Unless otherwise indicated, any
reference to any agreement or instrument will be deemed to include a reference
to that agreement or instrument as assigned, amended, supplemented, amended and
restated, or otherwise modified and in effect from time to time or replaced in
accordance with the terms of this Agreement.


 


(c)                                  The use in this Agreement or any of
the other Security 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.”


 


(d)                                 References to “Sections” and “clauses”
will be to Sections and clauses, respectively, of this Agreement unless
otherwise specifically provided.


 


(e)                                  References to “Articles” will be to
Articles of this Agreement unless otherwise specifically provided.


 


(f)                                    References to “Exhibits” and “Schedules”
will be to Exhibits and Schedules, respectively, to this Agreement unless
otherwise specifically provided.


 


(g)                                 This Agreement, the other Security
Documents and any documents or instruments delivered pursuant hereto will be
construed without regard to the identity of the party who drafted it. Each and
every provision of this Agreement, the other Security Documents and any
instruments and documents entered into and delivered in connection therewith
will be construed as though the parties participated equally in the drafting
thereof. 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 Security Documents and
any instruments and documents entered into and delivered in connection with
this Agreement or any of the other Security Documents.


 


ARTICLE II  THE TRUST ESTATES


 


Section 2.1                                      Declaration
of First Priority Trust


 


(a)                                  To secure the payment of the First
Priority Lien Obligations and in consideration of and subject to the mutual
agreements set forth in this Agreement, each of the Obligors 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
holders of First Priority Lien Obligations, all of such Obligor’s right, title and interest in, to and under all Pledged Collateral granted to the
Collateral Agent under any Security Document for the benefit


 


21

















 


of the First Priority Secured Parties, and the
Collateral Agent hereby accepts and agrees to hold all of the Collateral
Agent’s right, title and interest in, to and under the Security 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 (collectively, the “First Priority
Trust Estate”). The Collateral
Agent and its successors and assigns under this Agreement will hold the First
Priority Trust Estate in trust for the benefit solely and exclusively of all
present and future holders of First Priority Lien Obligations as security for
the payment of all present and future First Priority Lien Obligations. The
parties declare and covenant that the First Priority Trust Estate will
be held and distributed by the Collateral Agent subject to the further
agreements herein.


 


(b)                                 If at any time:


 


(i)                                     all Liens granted in favor of the
First Priority Secured Parties by any and all of the Security Documents have
been released as provided in Section 5.1;


 


(ii)                                  the Collateral Agent holds no other
property in trust as part of the First Priority Trust Estate;


 


(iii)                               no monetary obligation (other than
indemnification and other contingent obligations not then due and payable) is
outstanding and payable under this Agreement to the Collateral Agent or any of
its co-trustees, agents or sub-agents (whether in an individual or
representative capacity); and


 


(iv)                              the Company delivers to the
Collateral Agent an Officer’s Certificate stating that all Liens of the
Collateral Agent have been released in compliance with all applicable provisions
of the First Priority Lien Documents and that the Obligors are not required by
any First Priority Lien Document to grant or maintain any Lien upon any
property to secure the First Priority
Lien Obligations;


 


then the first priority
trust arising hereunder will terminate, except that, notwithstanding such
termination, all provisions set forth in Sections 8.8 and 8.9
hereof enforceable by the Collateral Agent or any of its co-trustees, agents or
sub-agents (whether in an individual or representative capacity) or any other
Indemnitees will remain enforceable in accordance with their terms.


 


(c)                                  As of August 15, 2005, there
are no First Priority Lien Obligations outstanding.


 


Section 2.2                                      Declaration
of Second Priority Trust.


 


(a)                                  To secure the payment of the Second
Priority Lien Obligations and in consideration of and subject to the mutual
agreements set forth in this Agreement, each of the Obligors 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
holders of Second Priority Lien Obligations, all of such Obligor’s right, title and interest in, to and under all Pledged Collateral granted to the
Collateral Agent under any Security Document for the benefit of the Second
Priority Secured Parties, and the Collateral Agent hereby accepts and agrees to
hold all of the Collateral Agent’s right, title and interest in, to and
under the Security Documents,


 


22

















 


and all interests, rights, powers and remedies of
the Collateral Agent thereunder or in respect thereof and all cash and non-cash
proceeds thereof (collectively, the “Second Priority Trust Estate”).
The Collateral Agent and its successors
and assigns under this Agreement will hold the Second Priority Trust Estate in
trust for the benefit solely and exclusively of all present and future holders
of Second Priority Lien Obligations as security for the payment of all present
and future Second Priority Lien Obligations. The parties declare and covenant that
the Second Priority Trust Estate will be held and distributed by the Collateral
Agent subject to the further agreements herein.


 


(b)                                 If at any time:


 


(i)                                     all Liens granted in favor of the
Second Priority Secured Parties by any and all of the Security Documents have
been released as provided in Section 5.1;


 


(ii)                                  the Collateral Agent holds no other
property in trust as part of the Second Priority Trust Estate;


 


(iii)                               no monetary obligation (other than indemnification
and other contingent obligations not then due and payable) is outstanding and
payable under this Agreement to the Collateral Agent or any of its co-trustees,
agents or sub-agents (whether in an individual or representative capacity); and


 


(iv)                              the Company delivers to the
Collateral Agent an Officer’s Certificate stating that all Liens of the
Collateral Agent have been released in compliance with all applicable
provisions of the Second Priority Lien Documents and that the Obligors are not
required by any Second Priority Lien Document to grant or maintain any Lien
upon any property to secure the Second Priority
Lien Obligations;


 


then the second priority
trust arising hereunder will terminate, except that, notwithstanding such
termination, all provisions set forth in Sections 8.8 and 8.9
hereof enforceable by the Collateral Agent or any of its co-trustees, agents or
sub-agents (whether in an individual or representative capacity) or any other
Indemnitees will remain enforceable in accordance with their terms.


 


Section 2.3                                      Declaration
of Other Junior Lien Trust. 


 


(a)                                  To secure the payment of the Other
Junior Lien Obligations and in consideration of and subject to the mutual
agreements set forth herein, each of the Obligors 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 holders of Other
Junior Lien Obligations, all of such
Obligor’s right, title and interest in, to and under all Pledged Collateral granted to the Collateral Agent under any Security
Document for the benefit of the Other Junior Secured Parties, and the
Collateral Agent hereby accepts and agrees to hold all of the Collateral
Agent’s right, title and interest in, to and under the Security 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 (collectively, the “Other Junior Lien
Trust Estate,” and together with the First Priority Trust Estate and the
Second Priority Trust Estate, the “Trust Estates”). The Collateral Agent and its successors and
assigns under this Agreement will hold


 


23

















 


the Other Junior Lien Trust Estate in trust for the
benefit solely and exclusively of all present and future holders of Other
Junior Lien Obligations as security for the payment of all present and future
Other Junior Lien Obligations. The parties declare and covenant that the
Other Junior Lien Trust Estate will be held and distributed by the Collateral
Agent subject to the further agreements herein.


 


(b)                                 If at any time:


 


(i)                                     all Liens granted in favor of the Other Junior Secured Parties by any
and all of the Security Documents have been released as provided in Section 5.1;


 


(ii)                                  the Collateral Agent holds no other
property in trust as part of the Other Junior Lien Trust Estate;


 


(iii)                               no monetary obligation (other than
indemnification and other contingent obligations not then due and payable) is
outstanding and payable under this Agreement to the Collateral Agent or any of
its co-trustees, agents or sub-agents (whether in an individual or
representative capacity); and


 


(iv)                              the Company delivers to the
Collateral Agent an Officer’s Certificate stating that all Liens of the
Collateral Agent have been released in compliance with all applicable
provisions of the Other Junior Lien Documents
and that the Obligors are not required by any Other Junior Lien Document to
grant or maintain any Lien upon any property to secure the Other Junior Lien Obligations,


 


then the other junior
lien trust arising hereunder will terminate, except that, notwithstanding such
termination, all provisions set forth in Sections 8.8 and 8.9
hereof enforceable by the Collateral Agent or any of its co-trustees, agents or
sub-agents (whether in an individual or representative capacity) or any other
Indemnitee will remain enforceable in accordance with their terms.


 


Section 2.4                                      Escrow.
In connection with the issuance of any Series of Secured Debt, any Obligor
may enter into an escrow agreement (each, an “Escrow Agreement”)
with an escrow agent (each, an “Escrow Agent”), which may be the
Collateral Agent, pursuant to which such Obligor may deposit with the
Escrow Agent, from the proceeds of such Series of Secured Debt, an amount
equal to that amount of interest payments on the Series of Secured Debt
specified in a Security Document for such Series of Secured Debt (the “Escrowed
Interest”) and may grant a security interest to the Escrow Agent in
such Escrowed Interest to secure all Secured Obligations under such Series of
Secured Debt. Notwithstanding anything to the contrary set forth in this
Agreement, the Escrowed Interest (and any earnings thereon) for a Series of
Secured Debt shall not secure any Series of Secured Debt other than the
Secured Obligations under the Series of Secured Debt to which it is
pledged, shall not be part of any Trust Estate, and shall be applied to
payment of the Series of Secured Debt it secures in accordance the terms
of the respective Escrow Agreement and the other Secured Debt Documents.


 


Section 2.5                                      Priority
of Liens.


 


(a)                                  It is the intent of the parties
hereto that:


 


24

















 


(i)                                     this Agreement and the Security
Documents create three separate and distinct Trust Estates and Liens:  the First Priority Trust Estate and Lien
securing the payment and performance of the First Priority Lien Obligations,
the Second Priority Trust Estate and Lien securing the payment and performance
of the Second Priority Lien Obligations and
the Other Junior Lien Trust Estate and Lien securing the payment and
performance of the Other Junior Lien Obligations;


 


(ii)                                  (x)
the Liens securing the Second Priority Lien Obligations are subject and
subordinate to the Liens securing the Permitted Prior Liens and First Priority
Lien Obligations, and (y) the Liens securing the Other Junior Lien Obligations
are subject and subordinate to the Liens securing the Permitted Prior Liens and
the First Priority Lien Obligations and the Liens securing the Second Priority
Lien Obligations; and


 


(iii)                               subject to the provisions of this
Agreement relating to the rights to proceeds of the sale of property subject to
the Liens described herein, any sale of property pursuant to a Lien described
hereunder permitted under the applicable Secured Debt Document or under Section 2.7(a)(iv) hereof
will extinguish all Liens subordinate to the Lien pursuant to which such sale
was made, and any property so sold will be sold free and clear of all such
subordinate Liens.


 


(b)                                 The parties hereto agree that, in no
event will (other than with respect to Escrowed Interest):


 


(i)                                     The First Priority Debt
Representative or any First Priority Secured Parties have a Lien on or security
interest in any Pledged Collateral that is not subject to the Second Priority
Lien of the Second Priority Secured Parties;


 


(ii)                                  the Second Priority Debt
Representatives or any Second Priority Secured Parties have a Lien on or
security interest in any Pledged Collateral that is not subject and subordinate
to the First Priority Lien of the First Priority Secured Parties; and


 


(iii)                               the Other Junior Debt
Representatives or any Other Junior Secured Parties have a Lien on or security
interest in any Pledged Collateral that is not subject and subordinate to the
First Priority Lien of the First Priority Secured Parties and the Second
Priority Lien of the Second Priority Secured Parties.


 


Section 2.6                                      Enforcement
of Liens.


 


(a)                                  Whether or not any Insolvency
Proceeding has been commenced by or against any Obligor, the Junior Priority
Secured Parties will not:


 


(i)                                     request judicial relief, in an
Insolvency Proceeding or in any other court, that would hinder, delay, limit or
prohibit the lawful exercise or enforcement of any right or remedy otherwise
available to the Senior Priority Secured Parties in respect of the Pledged
Collateral or that would limit, invalidate, avoid or set aside any Senior
Priority Lien or subordinate any Senior Priority Liens to any Junior Priority Liens
or grant Junior Priority Liens equal ranking to any Senior Priority Liens;


 


25

















 


(ii)                                  oppose or otherwise contest any
motion for relief from the automatic stay or file or otherwise support any
injunction against foreclosure or enforcement of Senior Priority Liens made by
any Senior Priority Secured Parties in any Insolvency Proceedings;


 


(iii)                               oppose or otherwise contest any
lawful exercise by any Senior Priority Secured Parties of the right to credit
bid Senior Priority Lien Debt at any sale in foreclosure of Senior Priority
Liens; or


 


(iv)                              oppose or otherwise contest any
other request for judicial relief made in any court by any Senior Priority
Secured Party relating to the lawful enforcement of any Senior Priority Lien
against the Pledged Collateral.


 


(b)                                 Prior to the Remedy Bar Lift Trigger
Date, subject to the rights of any holders of Permitted Prior Liens, the First
Priority Secured Parties will have the exclusive right to enforce rights and
exercise remedies with respect to any Pledged Collateral that is part of
the First Priority Trust Estate, regardless of whether such Pledged Collateral may also
be part of the Second Priority Trust Estate or the Other Junior Lien Trust
Estate. Notwithstanding the foregoing, subject to the rights of any holders of
Permitted Prior Liens, the Second Priority Secured Parties may enforce
rights, exercise remedies and take actions:


 


(i)                                     without any condition or restriction
whatsoever, at any time prior to the Working Capital Loan Funding Date or after
the Discharge of First Priority Lien Obligations;


 


(ii)                                  as necessary to redeem (subject to
the prior Discharge of First Priority Lien Obligations) any Pledged Collateral
in a creditor’s redemption permitted by law or to deliver any notice or demand
necessary to enforce any right to claim, take or receive proceeds of Pledged
Collateral remaining after the Discharge of First Priority Lien Obligations in
the event of foreclosure or other enforcement of any prior Lien;


 


(iii)                               as necessary to perfect or establish
the priority (subject to Senior Priority Liens) of the Second Priority Liens
upon any Pledged Collateral; or


 


(iv)                              as necessary to create, prove,
preserve or protect (but not enforce) the Second Priority Liens upon any Pledged
Collateral.


 


(c)                                  On or after the Remedy Bar Lift
Trigger Date, subject to the rights of any holders of Permitted Prior Liens,
and subject to the Collateral Agent’s obligation to comply with the Act of
Required Debtholders, the First Priority Secured Parties and the Second
Priority Secured Parties will each have the right to instruct the Collateral
Agent to enforce rights and exercise remedies with respect to any Pledged
Collateral that is part of the First Priority Trust Estate or the Second
Priority Trust Estate. Notwithstanding the foregoing, subject to the rights of
any holders of Permitted Prior Liens, the Other Junior Secured Parties may enforce
rights, exercise remedies and take actions:


 


26

















 


(i)                                     without any condition or restriction
whatsoever, at any time after the Discharge of First Priority Lien Obligations
and the Discharge of the Second Priority Lien Obligations;


 


(ii)                                  as necessary to redeem (subject to
the prior Discharge of First Priority Lien Obligations and the Discharge of
Second Priority Lien Obligations) any Pledged Collateral in a creditor’s
redemption permitted by law or to deliver any notice or demand necessary to
enforce any right to claim, take or receive proceeds of Pledged Collateral remaining
after the Discharge of First Priority Lien Obligations and the Discharge of
Second Priority Lien Obligations in the event of foreclosure or other
enforcement of any prior Lien;


 


(iii)                               as necessary to perfect or establish
the priority (subject to Senior Priority Liens) of the Other Junior Liens upon
any Pledged Collateral; or


 


(iv)                              as necessary to create, prove,
preserve or protect (but not enforce) the Other Junior Liens upon any Pledged
Collateral.


 


(d)                                 In exercising rights and remedies
with respect to the Pledged Collateral, subject to the rights of any holders of
Permitted Prior Liens, the First Priority Secured Parties and, after the Remedy
Bar Lift Trigger Date, but subject to the Collateral Agent’s obligation to
comply with an Act of Required Debtholders, the Second Priority Secured
Parties, may enforce (or refrain from enforcing) the provisions of the
Security Documents and exercise (or refrain from exercising) remedies
thereunder or any such rights and remedies available at law or in equity, all
in such order and in such manner as they may determine in the exercise of
their sole and exclusive discretion, including:


 


(i)                                     the exercise or forbearance from
exercise of all rights and remedies in respect of the Pledged Collateral and/or
the applicable Liens;


 


(ii)                                  the enforcement or forbearance from
enforcement of any Lien in respect of the Pledged Collateral;


 


(iii)                               the exercise or forbearance from
exercise of rights and powers of a holder of shares of stock included in the
Pledged Collateral to
the extent provided in the Security Documents;


 


(iv)                              the acceptance of the Pledged
Collateral in full or partial satisfaction of the applicable Obligations, but
only with the consent of each First Priority Debt Representative; and


 


(v)                                 the exercise or forbearance from
exercise of all rights and remedies of a secured lender under the UCC or any
similar law of any applicable jurisdiction or in equity.


 


(e)                                  The parties hereto agree that:


 


27

















 


(i)                                     Prior
to the Discharge of First Priority Lien Obligations, the Second Priority
Secured Parties and the Collateral Agent may not assert or enforce any
right of marshalling accorded to junior lienholders, as against the First
Priority Secured Parties (in their capacity as priority lienholders), under
equitable principles.


 


(ii)                                  Prior to the Discharge of First
Priority Lien Obligations and the Discharge of Second Priority Lien
Obligations, the Other Junior Secured Parties and the Collateral Agent may not
assert or enforce any right of marshalling accorded to junior lienholders, as
against the First Priority Secured Parties or the Second Priority Secured
Parties (each, in their capacity as priority lienholders), under equitable
principles.


 


(f)                                    Except for payments received free
from the Senior Priority Liens as provided in Section 2.6(g), (i) all
proceeds of Pledged Collateral received by any Junior Priority Debt
Representative, the Collateral Agent or any holder of Junior Priority Liens at
any time prior to the Discharge of Senior Priority Lien Obligations, will be
held by such Junior Priority Debt Representative, the Collateral Agent or such
holder, as the case may be, for the account of the holders of Senior
Priority Liens and remitted to the applicable Senior Priority Debt
Representative or the Collateral Agent in accordance with the terms of the
Senior Priority Debt Documents.


 


(g)                                 Except for prepayments and except
for payments that are made from or constitute proceeds of property subject to
Senior Priority Liens and that are received by any Junior Priority Debt
Representative or the Collateral Agent or any holder of Junior Priority Lien
Obligations at any time prior to the Discharge of Senior Priority Lien
Obligations and after (i) the commencement of any Insolvency Proceeding in
respect of the Company or any other Obligor or (ii) any Junior Priority
Debt Representative and the Collateral Agent shall have received written notice
from any Senior Priority Debt Representative stating that (A) any Senior
Priority Lien Debt has become due and payable in full (whether at maturity,
upon acceleration or otherwise) or (B) the holders of Senior Priority
Liens have become entitled to and desire to enforce any or all of the Priority
Liens by reason of a default under any Senior Priority Debt Document:


 


(i)                                     no payment of money (or the
equivalent of money) made by the Company or any other Obligor to any Junior
Priority Debt Representative, the Collateral Agent or any other holder of
Junior Priority Lien Obligations (including, without limitation, payments and
prepayments made for application to Junior Priority Lien Obligations and all
other payments and deposits made pursuant to any provision of the Junior
Priority Debt Document) will in any event be the subject to the foregoing
provisions of this Section 2.6; and


 


(ii)                                  all payments permitted to be
received under this Section 2.6(g) will be received by the
applicable Junior Priority Debt Representative, the Collateral Agent and other
holders of Junior Priority Lien Obligations free from the Senior Priority Liens
and all other Liens except the Junior Priority Liens.


 


28

















 


Section 2.7                                      Special
Rights in Insolvency Proceedings


 


(a)                                  Subject to clause (b) below, if
in any Insolvency Proceeding, the holders
of Senior Priority Lien Obligations consent to any order:


 


(i)                                     for use of cash collateral,
provided, that such order does not provide for the release of any
Pledged Collateral;


 


(ii)                                  approving a debtor-in-possession
financing in an amount not to exceed $75 million less the amount outstanding,
if any, under the Working Capital Facility, secured by a Lien that is senior to
or pari passu with all Senior
Priority Liens upon any property of the estate in such Insolvency
Proceeding;


 


(iii)                               granting any relief on account of
Senior Priority Lien Obligations as adequate protection (or its equivalent) for
the benefit of the holders of Senior Priority Lien Obligations in the Pledged
Collateral subject to Senior Priority Liens; or


 


(iv)                              relating to a sale of assets of the
Company or any other Obligor that provides, to the extent the assets sold are
to be free and clear of Liens, that all Senior Priority Liens and Junior
Priority Liens will attach to the proceeds of the sale;


 


then the Junior Priority Secured Parties, in their
capacity as holders or representatives of secured claims, will not oppose or
otherwise contest and will provide for the entry of such order, so long as none
of the Senior Priority Secured Parties in any respect opposes or otherwise
contests any request made by any Junior Priority Secured Party for the grant to
the Collateral Agent, for the benefit of any Junior Priority Secured Parties,
of a Junior Priority Lien upon any property on which a Lien is (or is to be)
granted under such order to secure the Senior Priority Lien Obligations,
co-extensive in all respects with, but subordinated (as set forth in Section 2.5
of this Agreement, as applicable) to, all such Senior Priority Liens on such
property.


 


(b)                                 Notwithstanding the foregoing, (i) the
Junior Priority Secured Parties may oppose or contest any such order
described in clause (a) above on any grounds that may be asserted by
a holder of unsecured claims, and (ii) they may object to the
confirmation of any plan of reorganization or similar dispositive restructuring
plan that may have been filed by a party in interest and appear and be
heard at the confirmation hearing on such plan.


 


(c)                                  The Junior Priority Secured Parties
will not file or prosecute in any Insolvency
Proceeding any motion for adequate protection (or any comparable request for
relief) based upon their interest in the Pledged Collateral under any Junior
Priority Liens, provided that they may freely seek and obtain relief
granting a Lien, provided that such Lien may be co-extensive in all
respects with, but shall be subordinated (as set forth Section 2.5
of this Agreement, as applicable) to, all Liens granted in the Insolvency
Proceeding to, or for the benefit of, the holders of Senior Priority Lien
Obligations, and if they seek and obtain relief providing for the payment of
monies during the course of the Insolvency Proceedings, such payment shall be
subordinate to any payment made to the holders of Senior Priority Lien
Obligations in accordance with this Agreement.


 


(d)                                 If in any Insolvency
Proceeding, debt obligations of the reorganized debtor secured by Liens on any
property of the reorganized debtor are distributed both on account of Senior
Priority Lien Obligations and on account of Junior Priority Lien Obligations,


 


29

















 


then, to
the extent that the debt obligations distributed on account of the Senior
Priority Lien Obligations and on account of the Junior Priority Lien
Obligations are secured by Liens on the same property, the provisions of Section 2.5
and Section 2.6 of this Agreement will survive the distribution of
those debt obligations pursuant to the plan and will apply with like effect to
the Liens securing those debt obligations.


 


Section 2.8                                      Pledged
Collateral Shared Equally and Ratably Within Each Class. Unless otherwise
agreed in writing by the affected parties, the parties to this Agreement agree
that the payment and satisfaction of all of the Secured Obligations within each
Class will be secured Equally and Ratably by the security interests
established in favor of the Collateral Agent for the benefit of the Secured
Parties belonging to such Class. It is understood and agreed that nothing in
this Section 2.8 is intended to alter the priorities among Secured
Parties belonging to different Classes as provided in Section 2.5
and Section 2.6 hereof.


 


Section 2.9                                      Additional
Obligations and Guarantees.


 


(a)                                  The Company or other applicable
Obligor will be permitted to designate as additional Secured Debtholders hereunder
each Person who is, or who becomes, the registered holder of First Priority
Lien Debt, Second Priority Lien Debt or Other Junior Lien Debt incurred by the
Company or such other Obligor after the date of this Agreement in accordance
with the terms of the Secured Debt Documents. The Company or other applicable
Obligor may effect such designation by delivering to the Collateral Agent,
with copies to each previously identified Secured Debt Representative, each of
the following:


 


(i)                                     An Officer’s Certificate (A) stating
that the Company or such other Obligor intends to incur additional Secured Debt
(“New Secured Debt”) which will either be (x) First Priority Lien Debt
permitted by each applicable Secured Debt Document to be secured by a First
Priority Lien on a pari passu
basis with all previously existing First Priority Lien Debt , (y) Second
Priority Lien Debt permitted by each applicable Secured Debt Document to be
secured by a Second Priority Lien on a pari
passu basis with all previously existing Second Priority Lien Debt,
or (z) Other Junior Lien Debt permitted by each applicable Secured Debt
Document to be secured with an Other Junior Lien on a pari passu basis with all previously
existing Other Junior Lien Debt or as has otherwise been agreed by the affected
parties with respect to such Other Junior Lien Debt; (B) describing any
additional Guarantees or Security Agreements required under the terms of the
Secured Debt Documents relating to the New Secured Debt; (C) setting forth
the amount of the New Secured Debt; and (D) reciting the provisions of
this Agreement or applicable Secured Debt Documents pursuant to which the New
Secured Debt is permitted;


 


(ii)                                  Evidence that the Security
Agreements and Guarantees described in the Officer’s Certificate have been duly
authorized, executed and delivered by the parties thereto;


 


(iii)                               Evidence that the Company or such
other Obligor has duly authorized, executed (if applicable) and recorded (or
caused to be recorded) in each


 


30

















 


appropriate governmental office all
relevant filings and recordations to ensure that the New Secured Debt is
secured by the Pledged Collateral; and


 


(iv)                              A written notice specifying the name
and address of the Secured Debt Representative for such series of New
Secured Debt for purposes of Section 8.5.


 


Notwithstanding the foregoing, nothing in this
Agreement will be construed to allow the Company or any other Obligor to incur
additional Indebtedness unless otherwise permitted by the terms of the Secured
Debt Documents.


 


(b)                                 In the event that after the date of
this Agreement, the Company or any other Obligor is required by the terms of
any Secured Debt Document to add a Subsidiary of the Company as a Guarantor,
the Company shall cause such Guarantor to (i) comply with the provisions
hereof, (ii) execute a Collateral Trust Joinder and deliver such
Collateral Trust Joinder to the Collateral Agent, (iii) execute a Security
Agreement and deliver such Security Agreement to the Collateral Agent.


 


ARTICLE III 
OBLIGATIONS AND POWERS OF COLLATERAL AGENT


 


Section 3.1                                      Undertaking
of the Collateral Agent.


 


(a)                                  Subject to, and in accordance with,
this Agreement, the Collateral Agent will, for the benefit solely and
exclusively of the present and future Secured Parties:


 


(i)                                     accept, enter into, hold, maintain,
administer and enforce all Security Documents, including all Pledged Collateral
subject thereto, and all security interests created thereunder, perform its
obligations under the Security Documents and protect, exercise and enforce the
interests, rights, powers and remedies granted or available to it under,
pursuant to or in connection with the Security Documents;


 


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


 


(iii)                               deliver and receive notices pursuant
to the Security 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 Pledged Collateral under the Security Documents and its other
interests, rights, powers and remedies;


 


(v)                                 remit as provided in Section 3.4
all cash proceeds received by the Collateral Agent from the collection,
foreclosure or enforcement of its interest in the Pledged Collateral under the
Security Documents or any of its other interests, rights, powers or remedies;


 


31

















 


(vi)                              execute and deliver amendments to
the Security Documents as from time to time authorized and directed by an Act
of Required Debtholders accompanied by an Officer’s Certificate to the effect
that the amendment was permitted by each applicable Secured Debt Document; and


 


(vii)                           release any Lien granted to it by
any Security Document upon any Pledged Collateral if and as required by Section 5.1(b).


 


(b)                                 Each party to this Agreement
acknowledges and consents to the undertaking of the Collateral Agent set forth
in Section 3.1(a) and agrees to each of the other provisions
of this Agreement applicable to it.


 


(c)                                  Notwithstanding anything to the
contrary contained in this Agreement, the Collateral Agent will not commence
any exercise of remedies or any foreclosure actions or otherwise take any
action or proceeding against any of the Pledged Collateral (other than actions
as necessary to prove, protect or preserve the Liens securing the Secured
Obligations) unless and until it shall have received a Notice of Actionable
Default, and then only in accordance with the provisions of this Agreement.


 


Section 3.2                                      Release or
Subordination of Liens. The Collateral Agent will not release or
subordinate any Lien of the Collateral Agent or consent to the release or
subordination of any Lien of the Collateral Agent, except:


 


(a)                                  as directed by an Act of Required
Debtholders accompanied by an Officer’s Certificate to the effect that the
release or subordination was permitted by each applicable Secured Debt
Document;


 


(b)                                 as required by Article V;


 


(c)                                  as ordered pursuant to applicable
law under a final and nonappealable order or judgment of a court of competent
jurisdiction; or


 


(d)                                 in the case of subordination, for
the subordination of the Junior Priority Liens to the Senior Priority Liens.


 


Section 3.3                                      Remedies Upon
Actionable Default. If the Collateral Agent at any time receives a Notice
of Actionable Default, the Collateral Agent will promptly deliver written
notice thereof to each Secured Debt Representative. Thereafter, the Collateral
Agent may await direction by an Act of Required Debtholders and will act,
or decline to act, as directed by an Act of Required Debtholders, in the
exercise and enforcement of the Collateral Agent’s interests, rights, powers
and remedies in respect of the Pledged Collateral or under the Security
Documents or applicable law and, following the initiation of such exercise of
remedies, the Collateral Agent will act, or decline to act, with respect to the
manner of such exercise of remedies as directed by an Act of Required
Debtholders. Unless it has been directed to the contrary by an Act of Required
Debtholders, the Collateral Agent in any event may (but will not be
obligated to) take or refrain from taking such action with respect to any
Actionable Default as it may deem advisable and in the best interest of
the holders of Secured Obligations.


 


32

















 


Section 3.4                                      Application
of Proceeds.


 


(a)                                  Notwithstanding anything to the
contrary contained herein, the Collateral Agent will apply the proceeds of any
collection, sale, foreclosure or other realization upon any Pledged Collateral
in the following order of application:


 


FIRST, to the payment of all amounts payable under
this Agreement on account of the Collateral Agent’s fees and any reasonable
legal fees, costs and expenses or other liabilities of any kind incurred by the
Collateral Agent, the Trustees or any co-trustee or agent in connection with
any Security Document;


 


SECOND, to the repayment of Indebtedness (other than
Secured Debt) and other obligations secured by a Permitted Prior Lien on the
Pledged Collateral sold or realized upon;


 


THIRD, to the respective First Priority Debt
Representatives for application to the payment of all outstanding First
Priority Lien Debt and any other First Priority Lien Obligations, or to be held
by the respective First Priority Debt Representatives pending such application,
in such order as is set forth in the First Priority Lien Documents (or, if not
so provided, as directed in writing by all of the First Priority Debt
Representatives) in an amount sufficient to pay in full in cash all outstanding
First Priority Lien Debt and all other First Priority Lien Obligations
(including all interest accrued thereon after the commencement of any
Insolvency Proceeding at the rate, including any applicable post-default rate,
specified in the First Priority Lien Documents, even if such interest is not
enforceable, allowable or allowed as a claim in such proceeding, and including
the discharge or cash collateralization (at 102.5% of the aggregate undrawn
amount) of all outstanding letters of credit constituting First Priority Lien
Debt);


 


FOURTH, to the respective Second Priority Debt
Representatives for application to the payment of all outstanding Second
Priority Lien Debt and any other Second Priority Lien Obligations, or to be
held by the respective Second Priority Debt Representatives pending such
application, in such order as is set forth in the Second Priority Lien
Documents (or, if not so provided, as directed in writing by all of the Second
Priority Debt Representatives) in an amount sufficient to pay in full in cash
all outstanding Second Priority Lien Debt and all other Second Priority Lien
Obligations (including all interest accrued thereon after the commencement of
any Insolvency Proceeding at the rate, including any applicable post-default
rate, specified in the Second Priority Lien Documents, even if such interest is
not enforceable, allowable or allowed as a claim in such proceeding, and
including the discharge or cash collateralization (at 102.5% of the aggregate
undrawn amount) of all outstanding letters of credit constituting Second
Priority Lien Debt);


 


FIFTH, to the Other Junior Debt Representatives for
application to such Other Junior Lien Obligations Equally and Ratably, until
all such Other Junior Lien Obligations have been paid in full in cash or the
cash amount held by such Other Junior Debt Representatives in respect of such
Other Junior Lien Obligations is sufficient to pay all such Other Junior Lien
Obligations; and


 


SIXTH, any surplus remaining after the payment in full
in cash of all of the Secured Obligations entitled to the benefit of such
Pledged Collateral will be paid to the Company or


 


33

















 


such other applicable Obligor, as the case may be,
or its successors or assigns, or as a court of competent jurisdiction may direct.


 


(b)                                 If
any Junior Priority Debt Representative or any holder of a Junior Priority Lien
Obligation collects or receives any proceeds in respect of the Junior Priority
Lien Obligations that should have been applied to the payment of obligations
secured by a Permitted Prior Lien, or the Senior Lien Obligations in accordance
with clause (a) above, and a Responsible Officer of such
Junior Priority Debt Representative shall have received written notice, or
shall have actual knowledge, of the same prior to such Junior Priority Debt
Representative’s distribution of such proceeds, whether after the commencement
of an Insolvency Proceeding or otherwise, such Junior Priority Debt Representative
or such holder, as the case may be, will forthwith deliver the same to the
Collateral Agent, for the account of the holders of such obligations secured by
a Permitted Prior Lien or Senior Priority Lien Obligations, in the form received,
duly indorsed to the Collateral Agent, for the account of such holders to be
applied in accordance with clause (a) above. Until so
delivered, such proceeds will be held by such Junior Priority Debt
Representative or such holder of a Junior Priority Lien Obligation, as the case
may be, for the benefit of the holders of obligations secured by a
Permitted Prior Lien, and the applicable Senior Priority Lien Obligations and
shall be deemed to be segregated from other funds and property held by such
Junior Priority Debt Representative or such holder of a Junior Priority Lien
Obligation, as the case may be.


 


Section 3.5                                      Powers
of the Collateral Agent.


 


(a)                                  The Collateral Agent is irrevocably
authorized and empowered to enter into and perform its obligations and
protect, perfect, exercise and enforce its interest, rights, powers and
remedies under the Security Documents and applicable law and in equity and to
act as set forth in this Article III or as requested in any lawful
directions given to it from time to time in respect of any matter by an Act of
Required Debtholders.


 


(b)                                 Without limiting the provisions of Section 6.2,
the Collateral Agent may act through agents and Affiliates to the extent
necessary to perform its obligations hereunder; provided, that if
the Collateral Agent elects to act through an agent or Affiliate of the
Collateral Agent, such agent or Affiliate shall have agreed in writing to act
in accordance with the standards and obligations applicable to the Collateral
Agent under this Agreement.


 


(c)                                  No Secured Debt Representative,
Secured Debtholder or other holder of Secured Obligations will have any
liability whatsoever for any act or omission of the Collateral Agent.


 


Section 3.6                                      Documents and
Communications. The Collateral Agent will permit each Secured Debt
Representative and each Secured Debtholder during normal business hours upon
reasonable written notice from time to time to inspect and copy, at the cost
and expense of the party requesting such copies, any and all Security Documents
and other documents, notices, certificates, instructions or written
communications received by the Collateral Agent in its capacity as such.


 


34

















 


Section 3.7                                      For Sole and
Exclusive Benefit of Holders of Secured Obligations. The Collateral Agent
will accept, hold, administer and enforce all Liens 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 the present and
future holders of present and future Secured 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 3.4.


 


Section 3.8                                      Additional
Secured Debt. The Collateral Agent will perform its undertakings set
forth in Section 3.1(a) with respect to each holder of Secured
Obligations of a Series of Secured Debt that is issued or incurred after
the date hereof that (a) holds Secured Obligations that are identified as
First Priority Lien Debt, Second Priority Lien Debt or Other Junior Lien Debt
in accordance with the procedures set forth in Section 2.9; and (b) signs,
through its designated Secured Debt Representative identified pursuant to Section 2.9,
a Collateral Trust Joinder and a Lien Priority Confirmation and an agreement by
the holders thereof and the applicable Secured Party Debt Representative to
vote with respect to such Indebtedness in accordance with this Agreement.


 


ARTICLE IV 
VOTING; INTERCREDITOR MATTERS


 


Section 4.1                                      Voting.


 


(a)                                  In connection with any Act of
Required Debtholders or other decision by Secured Debtholders under this
Agreement, the votes of each Series of Secured Debt entitled to vote
thereon shall be cast in the manner provided by, and in accordance with the
decision of the holders of such Series of Secured Debt made pursuant to,
the terms of the corresponding Secured Debt Documents. Following and in accordance
with the outcome of the applicable vote under its Secured Debt Documents, the
Secured Debt Representative of each Series of Secured Debt will cast all
of its votes as a block in respect of any vote under this Agreement.


 


(b)                                 Each Series of Secured Debt
entitled to vote in connection with an Act of Required Debtholders or as
otherwise set forth in this Agreement, shall have the following number of votes
to cast in connection with such vote:


 


(i)                                     if such vote is in connection with
an exercise of remedies, the number of votes equal to the aggregate outstanding
principal amount of Secured Debt held by such Series of Secured Debt, as
applicable (including outstanding letters of credit whether or not then
available or drawn); and


 


(ii)                                  if such vote is in connection with
any other action, the number of votes equal to the aggregate outstanding
principal amount of Secured Debt held by such Series of Secured Debt, as
applicable (including outstanding letters of credit whether or not then
available or drawn), plus the
aggregate amount of unfunded commitments to extend credit which, when funded,
would constitute Secured Debt under such Series of Secured Debt, as
applicable.


 


For purposes of the foregoing, any Secured Debt
registered in the name of, or Beneficially Owned by, the Company or any
Affiliate of the Company (other than a Holder of


 


35

















 


Notes who is an Affiliate of the Company solely by
virtue of the Person’s ownership of Conversion Securities, as that term is
defined in the Indenture) will be deemed not to be outstanding.


 


(c)                                  In calculating the percentage of
holders of Secured Debt consenting to, approving, waiving or otherwise
providing direction with respect to any decision hereunder, the number of votes
cast in favor of such decision shall be divided by the total number of votes
entitled to be cast with respect to such decision.


 


Section 4.2                                      Intercreditor
Decisions.


 


(a)                                  No amendment or supplement to any
Secured Debt Document that changes the date, amount or method of calculation of
the payment of principal of, or interest or premium, if any, on any Secured
Debt, in a way that adversely affects the rights of any holder of Secured Debt,
will become effective without the consent of the Secured Debt Representative
for each other Series of Secured Debt (other than the Other Junior Debt
Representative).


 


(b)                                 Except as set forth in clause (a) above,
the holders of a Series of Secured Debt and the Secured Debt
Representative therefor may, at any time and from time to time, without the
consent of or notice to any other Series of Secured Debt or Secured Debt
Representative and without impairing or releasing the obligations of any person
under this Agreement, (i) amend any agreement related solely to such Series of
Secured Debt in accordance with the terms thereof, (ii) release anyone
liable in any manner under or in respect of the obligations owing in connection
with such Series of Secured Debt (but only in respect of such obligations)
and (iii) waive any provisions of any agreement related solely to such Series of
Secured Debt.


 


Section 4.3                                      Purchase of
Working Capital Facility. At any time upon the occurrence and during the
continuance of an Event of Default (as defined in the Indenture) and for so
long as such Event of Default is continuing, the holders of the Notes, or any
of them, shall have the right, but not the obligation, to purchase all, but not
less than all, of the Working Capital Facility from all of the holders of First
Piority Lien Debt constituting the Working Capital Facility at a purchase price
equal to 100% of the outstanding principal amount under the Working Capital
Facility, plus accrued and unpaid interest and any other amounts due to such
holders of First Priority Lien Debt, payable in immediately available funds. Any
holder of Notes may exercise such right by providing written notice to the
Lender and the Collateral Agent. Within five (5) Business Days following
the receipt of such written notice, the Collateral Agent shall give written
notice to the Lender that a holder of Notes has elected to purchase the Working
Capital Facility, and (ii) give written notice to all of the holders of
the Notes (the “Offer Notice”) of the exercise by a Note holder which notice
shall set forth the purchase price of the Working Capital Facility. Within
thirty (30) days after the mailing of the Offer Notice, each Note holder who
desires to purchase any portion of the Working Capital Facility (an “Accepting
Noteholder”) shall give written notice to the Collateral Agent (the “Acceptance
Notice”), specifying the amount of the Working Capital Facility it wishes to
purchase. Unless otherwise agreed in writing, each Accepting Noteholder shall
first have allocated to it such portion of the principal amount of the Working
Capital Facility as outstanding principal balance on its Note bears to the
total outstanding principal amount of the Notes, but limited by the amount
specified in its


 


36

















 


Acceptance Notice. If any Accepting Noteholder agrees
to purchase less than its pro rata portion of the Working Capital
Facility, each Accepting Noteholder who agrees to purchase more than its pro
rata portion of the Working Capital Facility shall have allocated to it
such additional portion of the Working Capital Facility not so allocated under
the preceding sentence as principal amount of Notes held by such Accepting
Noteholder bears to the total principal amount of Notes held by all Accepting
Noteholders who agree to purchase more than their pro rata portion of
the Working Capital Facility, but again limited by the number of Shares
specified in his, her or its Shareholder Acceptance Notice. This procedure
shall be continued until the Working Capital Facility has have been allocated
among the Accepting Noteholders to the extent specified in their respective
Acceptance Notices. The allocations pursuant to this procedure shall be
determined by the Collateral Agent. If the Note holders have collectively
agreed to purchase less than the entire Working Capital Facility, the holders
of such First Priority Lien Debt may retain the Working Capital Facility. If
the Accepting Noteholders agree to purchase the entire Working Capital
Facility, the Collateral Agent shall give notice to the Accepting Note holders setting
forth the amount of the Working Capital Facility allocated to each, and the
Working Capital Facility shall be transferred to them on a Business Day
designated by the Collateral Agent within thirty (30) days after the date of
the Offer Notice, pursuant to instruments of assignment reasonably acceptable
to the Lender and the Indenture Trustee.


 


Section 4.4                                      Limitations
upon Indebtedness.


 


(a)                                  Until there has been a Discharge of
Second Priority Lien Obligations with respect to the Indebtedness represented
by the Notes, the following limitations shall apply:


 


(i)                                     Neither the Company nor any Obligor
shall incur any First Priority Lien Debt other than the First Priority Lien
Debt represented by the Working Capital Facility or Permitted Refinancing
Indebtedness with respect thereto;


 


(ii)                                  The First Priority Lien Documents
relating to the Working Capital Facility shall provide in substance that the
aggregate principal at any one time outstanding (with letters of credit being
deemed to have a principal amount equal to the maximum potential liability of
the Obligor thereunder) under the Working Capital Facility shall not exceed $40
million, less the aggregate amount of all Net Proceeds of Asset Sales applied
or required to be applied by the Company to repay Indebtedness under the
Working Capital Facility (or Permitted Refinancing Indebtedness with respect
thereto) and effect a corresponding reduction in permanent commitment
thereunder pursuant to Section 5.10 of the Indenture;


 


(iii)                               Neither the Company nor any Obligor
shall incur any Second Priority Lien Debt other than the Notes and any
Additional Notes issued as interest on the Notes pursuant to the provisions
described in Paragraph 1 of the Form of Note appended to the
Indenture and Permitted Refinancing Indebtedness in respect of any of the
foregoing;


 


(iv)                              Neither the Company nor any Obligor
will incur any Other Junior Lien Debt unless:


 


37

















 


A.                                   No Default has occurred and is
continuing;


 


B.                                     The Company has complied with the
right of first offer provisions set forth in Section 5.09 of the Indenture
with respect to such Other Junior Lien Debt (including Other Junior Lien Debt
representing Permitted Refinancing Indebtedness);


 


C.                                     The Other Junior Lien Documents
relating to such Other Junior Lien Debt (including Other Junior Debt
representing Permitted Refinancing Indebtedness) provide in substance that:


 


(1)                                  the aggregate principal amount of
such Other Junior Lien Debt (or accreted value, as applicable) at any time outstanding
shall not exceed $200.0 million;


 


(2)                                  such Other Junior Lien Debt must
mature no earlier than 91 days after the maturity of the Notes and bear cash
interest (or any similar payments), if at all, at a rate not to exceed 7.5% per
annum;


 


(3)                                  no cash interest (or any similar
payments) shall be paid during any period in which the Company has exercised
its option to pay interest on the Notes in the form of Additional Notes,
or if the Company has Defaulted in the payment of interest on the Notes; and


 


(4)                                  a portion of the proceeds will be
deposited with an Escrow Agent pursuant to an Escrow Agreement providing for
the deposit of that amount of Escrowed Interest necessary to pay at least two
years of cash interest payable on such Other Junior Lien Debt.


 


(b)                                 The Officer’s Certificate delivered
pursuant to Section 2.9 in connection with the issuance of New Secured
Debt shall contain a certification that the Secured Debt Documents relating to
such New Secured Debt comply with the requirements of this Section 4.4.


 


(c)                                  As used in this Section 4.4,
the following terms shall have the meanings ascribed to them in the
Indenture:  “Additional Notes,” “Asset
Sales,” “Net Proceeds,” “Permitted Refinancing Indebtedness” and “incur.”


 


ARTICLE V 
OBLIGATIONS ENFORCEABLE BY THE COMPANY AND THE OTHER
OBLIGORS


 


Section 5.1                                      Release
of Liens.


 


(a)                                  The Collateral Agent’s Liens upon
the Pledged Collateral will be released pursuant to Section 5.1(b) below:


 


38

















 


(i)                                     in whole on the Secured Obligations
Termination Date;


 


(ii)                                  as to any Pledged Collateral that is
sold, transferred or otherwise disposed of by the Company or any other Obligor
to a Person that is not (either before or after such sale, transfer or
disposition) the Company or any other Obligor in a transaction or other
circumstance that is permitted by all of the Secured Debt Documents;


 


(iii)                               as to any Pledged Collateral other
than Pledged Collateral being released pursuant to clauses (i) or (ii) of
this paragraph, if (A) consent to the release of that Pledged Collateral
has been given by the requisite percentage or number of holders of each Series of
Secured Debt at the time outstanding as provided for in the applicable Secured
Debt Documents, and (B) the Company has delivered an Officer’s Certificate
to the Collateral Agent certifying that all such necessary consents have been
obtained.


 


(b)                                 The Collateral Agent agrees for the
benefit of the Company and the other Obligors that if the Collateral Agent at
any time receives:


 


(i)                                     an Officer’s Certificate stating
that (A) the signing officer has read Article V of this
Agreement and understands the provisions and the definitions relating hereto, (B) such
officer has made such examination or investigation as is necessary to enable
him or her to express an informed opinion as to whether or not the conditions
precedent in this Agreement and all other Secured Debt Documents, if any,
relating to the release of the Pledged Collateral have been complied with and (C) in
the opinion of such officer, such conditions precedent, if any, have been
complied with;


 


(ii)                                  the proposed instrument or
instruments releasing such Lien as to such property in recordable form, if
applicable; and


 


(iii)                               (x) prior to the Discharge of First
Priority Lien Obligations, the written confirmation of each First Priority Debt
Representative, and (y) prior to the Discharge of Second Priority Lien
Obligations, the written confirmation of each Second Priority Debt
Representative (such confirmation to be given following receipt of, and based
solely on, the Officer’s Certificate described in clause (i) above)
that, in its view, such release is permitted by Section 5.1(a) and
the respective Secured Debt Documents governing the Secured Obligations the
holders of which such Secured Debt Representative represents;


 


then the Collateral Agent will execute (with such
acknowledgements and/or notarizations as are required) and deliver such
instruments (or will deliver a written authorization to file or record such
instruments) to the Company or other
applicable Obligor on or before the later of (x) the date specified in
such request for such release and (y) the fifth Business Day after the date of
receipt of the items required by this Section 5.1(b) by the
Collateral Agent.


 


(c)                                  Notwithstanding Section 5.1(a) or
(b):


 


(i)                                     upon the release of the Guarantees
of any Guarantor pursuant to and in accordance with the applicable Secured Debt
Documents, the Collateral Agent’s


 


39

















 


Lien in the Pledged Collateral
pledged by such Guarantor shall automatically, without further action, be
released;


 


(ii)                                  upon the transfer by Guarantors ICO
Services Limited (“ISL”) and ICO Satellite Services Limited (“ISSL”) of
intangible assets, including intellectual property and authorizations and
certain intercompany receivables, that are related solely to operations or
activities of the Parent and its subsidiaries other than the Company or the
Guarantors outside of North America, the Collateral Agent’s Lien in the Pledged
Collateral pledged by such Guarantor shall automatically, without further
action, be released; provided, however, that nothing in this clause (ii) of
Section 5.1(c) shall be construed to permit the transfer of ISL’s or
ISSL’s general partnership interests in Guarantor ICO Satellite Services G.P.;


 


and in each such case the Collateral Agent will
execute (with such acknowledgements and/or notarizations as are required) and
deliver to such Guarantor or Guarantors an instrument or instruments releasing such
Lien in such form as may be provided by such Guarantor or Guarantors
not later than the fifth Business Day after receipt of a request therefor.


 


(d)                                 The Collateral Agent hereby agrees
that in the case of any release pursuant to clause (ii) of Section 5.1(a),
if the terms of any such sale, transfer or other disposition require the
payment of the purchase price to be contemporaneous with the delivery of the
applicable release, then, at the request of the Company or other applicable
Obligor, the Collateral Agent will either be present at the closing of such
transaction or will deliver the release under customary escrow arrangements
that permit such contemporaneous payment and delivery of the release.


 


(e)                                  Each Secured Debt Representative
hereby agrees that:


 


(i)                                     as soon as reasonably practicable
after receipt of an Officer’s Certificate from the Company pursuant to Section 5.1(b)(i) it
will, to the extent required by such Section, either provide (A) the
written confirmation required by Section 5.1(b)(iii), (B) a
written statement that such release is not permitted by Section 5.1(a) or
(C) a request for further information from the
Company reasonably necessary to determine whether the proposed release is permitted by Section 5.1(a) and
after receipt of such information such Secured Debt Representative will as soon
as reasonably practicable either provide the written
confirmation or statement required pursuant to clause (A) or (B),
as applicable; and


 


(ii)                                  within one Business Day of the
receipt by it of any notice from the Collateral Agent pursuant to Section 3.3,
such Secured Debt Representative will deliver a copy of such notice to each
registered holder of the Series of Secured Debt for which it acts as
Secured Debt Representative.


 


Section 5.2                                      Delivery of Copies
to Secured Debt Representatives. The Company will deliver to each Secured
Debt Representative a copy of each Officer’s Certificate delivered to the
Collateral Agent pursuant to Section 5.1(b), together with copies
of all documents delivered to


 


40

















 


the Collateral Agent with such Officer’s Certificate. The
Secured Debt Representatives will not be obligated to take notice thereof or to
act thereon, subject to Section 5.1(e).


 


Section 5.3                                      Collateral
Agent not Required to Serve, File or Record. The Collateral Agent is not
required to serve, file, register or record any instrument creating, initially
perfecting, or, except as otherwise set forth herein, releasing or
subordinating its security interest in any Pledged Collateral.


 


ARTICLE VI  IMMUNITIES OF THE COLLATERAL AGENT


 


Section 6.1                                      No Implied
Duty. The Collateral Agent (i) will not have any duties or
responsibilities except as required by applicable law and except those
expressly assumed by it in this Agreement and the other Security Documents; (ii) shall
not be required to take any action which is contrary to applicable law or any
provision of this Agreement or the other Security Documents; (iii) shall
not be responsible to any Secured Party for any recitals, statements,
representations or warranties contained in this Agreement or in any of the
other Security Documents, or in any certificate or other document referred to
or provided for in, or received by any of them under, this Agreement or any of
the other Security Documents, or for the value, validity, effectiveness,
genuineness, enforceability, perfection or sufficiency of this Agreement or any
of the other Security Documents or any other document referred to or provided
for herein or therein or for any failure by the Company, Parent, any Guarantor
or any other Person to perform any of its obligations hereunder or
thereunder; and (iv) shall not be required to initiate or conduct any
litigation or collection proceedings hereunder or under any other Security
Document unless it shall have received written direction authorized by an Act
of Required Debtholders.


 


Section 6.2                                      Appointment of
Agents and Advisors. The Collateral Agent may execute any of the
trusts or powers hereunder or perform any duties hereunder either directly
or by or through agents, attorneys, accountants, appraisers or other experts or
advisors selected by it in good faith as it may reasonably require and
will not be responsible for any misconduct or negligence on the part of
any of them.


 


Section 6.3                                      Other
Agreements. The Collateral Agent has accepted and is bound by the Security
Documents executed by the Collateral Agent as of the date of
this Agreement and, as directed by an Act of Required Debtholders, the
Collateral Agent may execute additional Security Documents delivered to it
after the date of this Agreement, provided, however,
that such additional Security Documents do not adversely affect the rights,
privileges, benefits and immunities of the Collateral Agent. The Collateral
Agent will not otherwise be bound by, or be held obligated by, the provisions
of any credit agreement, indenture or other agreement governing Secured Debt
(other than this Agreement and the other Security Documents).


 


Section 6.4                                      Solicitation
of Instructions.


 


(a)                                  The Collateral Agent may at any
time solicit and conclusively rely upon (if relied upon in good faith) written
confirmatory instructions, in the form of an Act of Required Debtholders,
an Officer’s Certificate or an order of a court of competent jurisdiction, as
to any action that it may be requested or required to take, or that it may propose
to take, in the performance of any of its obligations under this Agreement or
any Security Document.


 


41

















 


(b)                                 No written direction given to the
Collateral Agent by an Act of Required Debtholders that in the sole judgment of
the Collateral Agent imposes, purports to impose or might reasonably be
expected to impose upon the Collateral Agent any obligation or liability not set
forth in or arising under this Agreement or the other Security Documents will
be binding upon the Collateral Agent unless the Collateral Agent elects, at its
sole option, to accept such direction.


 


Section 6.5                                      Limitation of
Liability. The Collateral Agent will not be responsible or liable for any
action taken or omitted to be taken by it hereunder or under any other Security
Document, except for its own gross negligence, bad faith or willful misconduct
as determined by a court of competent jurisdiction. In no event shall the
Collateral Agent by 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 6.6                                      Documents in
Satisfactory Form. The Collateral Agent will be entitled to require that
all agreements, certificates, opinions, instruments and other documents at any
time submitted to it, including those expressly provided for in this Agreement,
be delivered to it in a form and with substantive provisions reasonably
satisfactory to it.


 


Section 6.7                                      Entitled to
Rely. The Collateral Agent may conclusively rely upon any certificate,
notice or other document (including any facsimile) reasonably believed by it to
be genuine and correct and to have been signed or sent by or on behalf of the
proper Person or Persons and need not investigate any fact or matter stated in
any such document. The Collateral Agent may seek and rely upon any
judicial order or judgment, upon any advice, opinion or statement of legal
counsel, independent consultants and other experts selected by it in good faith
and upon any certification, instruction, notice or other writing delivered to
it by the Company or any other Obligor in compliance with the provisions of
this Agreement or delivered to it by any Secured Debt Representative as to the
Secured Debtholders for whom it acts, without being required to determine the
authenticity thereof or the correctness of any fact stated therein or the
propriety or validity of service thereof. The Collateral Agent may act in
reliance upon any instrument comporting with the provisions of this Agreement
or any signature reasonably believed by it to be genuine and may assume
that any Person purporting to give notice or receipt or advice or make any
statement or execute any document in connection with the provisions hereof has
been duly authorized to do so. To the extent an Officer’s Certificate or an
opinion of counsel is required or permitted under this Agreement to be
delivered to the Collateral Agent in respect of any matter, the Collateral
Agent may rely conclusively on such Officer’s Certificate or opinion of
counsel as to such matter.


 


Section 6.8                                      Secured Debt
Default. The Collateral Agent will not be required to inquire as to the
occurrence or absence of any Secured Debt Default and will not be affected by
or required to act upon any notice or knowledge as to the occurrence of any
Secured Debt Default unless and until it receives a Notice of Actionable
Default.


 


Section 6.9                                      Actions by
Collateral Agent. As to any matter not expressly provided for by this
Agreement, the Collateral Agent will act or refrain from acting as directed by
an Act of Required Debtholders and will be fully protected if it does so;
provided, however, that the


 


42

















 


Collateral Agent shall not be required to take any
action which shall expose the Collateral Agent to personal liability against
which it is not indemnified in a manner reasonably satisfactory to it or which
is contrary to this Agreement, any other Security Document or applicable law.


 


Section 6.10                                Security or
Indemnity in favor of the Collateral Agent. The Collateral Agent will not
be required to advance or expend any funds or otherwise incur any financial
liability in the performance of its duties or the exercise of its powers or
rights hereunder unless it has been provided with security or indemnity
reasonably satisfactory to it against any and all liability or expense which may be
incurred by it by reason of taking or continuing to take such action. The
Collateral Agent shall be under no obligation to exercise any of the rights or
powers vested in it by this Agreement at the request or direction of any of the
holders of Secured Debt pursuant to this Agreement, unless such holders of
Secured Debt have offered the Collateral Agent security or indemnity reasonably
satisfactory to it against the costs, expenses and liabilities which might be
incurred by it in compliance with such requests.


 


Section 6.11                                Rights of the
Collateral Agent. In the event there is any bona fide, good faith
disagreement between the other parties to this Agreement or any of the other
Security Documents resulting in adverse claims being made in connection with
Pledged Collateral held by the Collateral Agent and the terms of this Agreement
or any of the other Security Documents do not unambiguously mandate the action
the Collateral Agent is to take or not to take in connection therewith under
the circumstances then existing, or the Collateral Agent is in doubt as to what
action it is required to take or not to take hereunder, it will be entitled to
refrain from taking any action (and will incur no liability for doing so) until
directed otherwise in writing by a request signed by each Secured Debt
Representative or by order of a court of competent jurisdiction.


 


Section 6.12                                Limitations
on Duty of Collateral Agent in Respect of Collateral.


 


(a)                                  Beyond the exercise of reasonable
care in the custody of Pledged Collateral in its possession, the Collateral
Agent will have no duty as to any Pledged Collateral in its possession or
control or in the possession or control of any agent or bailee or any income
thereon or as to preservation of rights against prior parties or any other
rights pertaining thereto and the Collateral Agent will not be responsible for
filing any financing or continuation statements or recording any documents or
instruments in any public office at any time or times or otherwise perfecting
or maintaining the perfection of any security interest in the Pledged
Collateral. The Collateral Agent will be deemed to have exercised reasonable
care in the custody of the Pledged Collateral in its possession if the Pledged
Collateral is accorded treatment substantially equal to that which it accords
its own property, and the Collateral Agent will not be liable or responsible
for any loss or diminution in the value of any of the Pledged Collateral by
reason of the act or omission of any carrier, forwarding agency or other agent
or bailee selected by the Collateral Agent in good faith.


 


(b)                                 The Collateral Agent will not be
responsible for the existence, genuineness or value of any of the Pledged
Collateral or for the validity, perfection, priority or enforceability of the
Liens in any of the Pledged Collateral, whether impaired by operation of law or
by reason of any action or omission to act on its part hereunder, except
to the extent such action or omission constitutes gross negligence, bad faith
or willful misconduct as determined by a court of competent jurisdiction on the
part of the Collateral Agent, for the validity or


 


43

















 


sufficiency
of the Pledged Collateral or any agreement or assignment contained therein, for
the validity of the title of any Obligor to the Pledged Collateral, for
insuring the Pledged Collateral or for the payment of taxes, charges,
assessments or Liens upon the Pledged Collateral or otherwise as to the
maintenance of the Pledged Collateral. The Collateral Agent hereby disclaims
any representation or warranty to the present and future holders of the Secured
Obligations concerning the perfection of the Liens and security interests
granted hereunder or in the value of any of the Pledged Collateral.


 


Section 6.13                                Assumption of
Rights, Not Assumption of Duties. Notwithstanding anything to the contrary
contained herein:


 


(a)                                  each of the parties thereto will
remain liable under each of the Security Documents (other than this Agreement)
to the extent set forth therein to perform all of their respective duties
and obligations thereunder to the same extent as if this Agreement had not be
executed;


 


(b)                                 the exercise by the Collateral Agent
of any of its rights, remedies or powers hereunder will not release such
parties from any of their respective duties or obligations under the other
Security Documents; and


 


(c)                                  the Collateral Agent will not be
obligated to perform any of the obligations or duties of any of the
parties thereunder other than the Collateral Agent.


 


Section 6.14                                No Liability for
Clean Up of Hazardous Materials. In the event that the Collateral Agent is
required to acquire title to an asset for any reason, or take any managerial
action of any kind in regard thereto, in order to carry out any fiduciary or
trust obligation for the benefit of another, which in the Collateral Agent’s
sole discretion may cause the Collateral Agent to be considered an “owner
or operator” under any environmental laws or otherwise cause the Collateral
Agent to incur, or be exposed to, any environmental liability or any liability
under any other federal, state or local law, the Collateral Agent reserves the
right, instead of taking such action, either to resign as Collateral Agent or
to arrange for the transfer of the title or control of the asset to a court
appointed receiver. The Collateral Agent will not be liable to any Person for
any environmental liability or any environmental claims or contribution actions
under any federal, state or local law, rule or regulation by reason of the
Collateral Agent’s actions and conduct as authorized, empowered and directed
hereunder or relating to any kind of discharge or release or threatened
discharge or release of any hazardous materials into the environment.


 


ARTICLE VII  RESIGNATION AND REMOVAL OF THE COLLATERAL
AGENT


 


Section 7.1                                      Resignation
or Removal of Collateral Agent.


 


(a)                                  Subject to the appointment of a
successor Collateral Agent as provided in Section 7.2 and the acceptance
of such appointment by the successor Collateral Agent:


 


(i)                                     the Collateral Agent may resign
at any time by giving not less than 30 days’ notice of resignation to each
Secured Debt Representative and the Company; and


 


44

















 


(ii)                                  the Collateral Agent may be
removed at any time, with or without cause, by an Act of Required Debtholders.


 


(b)                                 The initial Collateral Agent, The
Bank of New York, shall be automatically discharged upon the issuance of the
first Series of First Priority Lien Debt to be issued hereunder.


 


Upon such removal, the Company shall promptly pay the
Collateral Agent for all of its accrued and unpaid fees and expenses incurred
in accordance with this Agreement and the other Security Documents.


 


Section 7.2                                      Appointment of
Successor Collateral Agent. Upon any such resignation, discharge or
removal, a successor Collateral Agent may be appointed by an Act of
Required Debtholders with, so long as no Secured Debt Default has occurred and
is continuing, the consent of the Company (which consent shall not be
unreasonably withheld). If no successor Collateral Agent has been so appointed
and accepted such appointment within 30 days after the predecessor Collateral
Agent gave notice of resignation or was removed or discharged, the retiring
Collateral Agent may (at the expense of the Company), at its option,
appoint a successor Collateral Agent, or petition a court of competent
jurisdiction for appointment of a successor Collateral Agent. The Collateral
Agent must be a bank or trust company: (a) authorized to exercise
corporate trust powers; (b) having a combined capital and surplus of at
least $50.0 million; and (c) maintaining an office in New York, New York. The
Collateral Agent will fulfill its obligations hereunder until a successor
Collateral Agent meeting the requirements of this Section 7.2 has
accepted its appointment as Collateral Agent and the provisions of Section 7.3
have been satisfied; provided, however, that the initial Collateral Agent
hereunder shall have no obligation to fulfill any obligations hereunder upon
its automatic discharge pursuant to Section 7.1(b).


 


Section 7.3                                      Succession.


 


(a)                                  When the Person so appointed as
successor Collateral Agent accepts such appointment:


 


(i)                                     such Person will succeed to and
become vested with all the rights, powers, privileges and duties of the
predecessor Collateral Agent, and the predecessor Collateral Agent will be
discharged from its duties and obligations hereunder; and


 


(ii)                                  the predecessor Collateral Agent
will promptly transfer all Liens and collateral security and other property of
the Trust Estates within its possession or control to the possession or control
of the successor Collateral Agent and will execute instruments and assignments
as may be necessary or desirable or reasonably requested by the successor
Collateral Agent to transfer to the successor Collateral Agent all Liens,
interests, rights, powers and remedies of the predecessor Collateral Agent in
respect of the Security Documents or the Trust Estates.


 


(b)                                 Thereafter the predecessor
Collateral Agent will remain entitled to enforce the immunities granted to it
in Article 6 and the provisions of Sections 8.8 and 8.9.


 


45

















 


ARTICLE VIII  MISCELLANEOUS PROVISIONS


 


Section 8.1                                      Amendment.


 


(a)                                  No amendment or supplement to the
provisions of this Agreement or any other Security Document (to which the
Collateral Agent is a party) will be effective without the approval of the Collateral
Agent acting as directed by an each Secured Debt Representative, except that:


 


(i)                                     any amendment or supplement that has
the effect solely of adding or maintaining Pledged Collateral, securing
additional Secured Debt that was otherwise permitted by the terms of the
Secured Debt Documents to be secured by the Pledged Collateral or preserving or
perfecting the Liens thereon or the rights of the Collateral Agent therein, or
adding or maintaining any guarantee, will become effective when executed and delivered
by the Company or any other applicable Obligor party thereto and the Collateral
Agent;


 


(ii)                                  no amendment or supplement that
reduces, impairs or adversely affects the right of any Secured Debtholder (A) to
vote its outstanding Secured Debt as to any matter described as subject to an
Act of Required Debtholders (or amends the provisions of this clause (ii) or
the definitions of “Act of Required Debtholders” or “Actionable
Default”), (B) to share in the order of application described in Section 3.4
in the proceeds of enforcement of or realization on any Pledged Collateral, in
each case that has not been released in accordance with the provisions
described in Section 5.1, or (C) to require that Liens
securing Secured Obligations be released only as set forth in the provisions
described in Section 5.1, will become effective without the consent
of the requisite percentage or number of holders of each Series of Secured
Debt so affected under the applicable Secured Debt Document; and


 


(iii)                               no amendment or supplement that
imposes any obligation upon the Collateral Agent or any Secured Debt
Representative or adversely affects the rights of the Collateral Agent or any
Secured Debt Representative, respectively, in its capacity as such will become
effective without the consent of the Collateral Agent or such Secured Debt
Representative, respectively.


 


(b)                                 The Collateral Agent will not enter
into any such amendment or supplement unless it has received an Officer’s
Certificate to the effect that such amendment or supplement will not result in
a breach of any provision or covenant contained in any of the Secured Debt
Documents. Prior to executing any amendment or supplement pursuant to this Section 8.1,
the Collateral Agent will be entitled to receive an opinion of counsel of the
Company to the effect that the execution of such document is authorized or
permitted hereunder, and with respect to amendments adding Pledged Collateral,
an opinion of counsel of the Company addressing customary perfection, and if
such additional Pledged Collateral consists of equity interests of any Person,
priority, matters with respect to such additional Pledged Collateral. Notwithstanding
the foregoing, any amendment, supplement or other agreement regarding the
provisions of the Security Documents that releases Pledged Collateral will be
effective only in accordance with the requirements set forth in Section 5.1.


 


46

















 


(c)                                  Unless agreed to by an Act of
Required Debtholders, no Security Document that secures Junior Priority Lien
Obligations may be amended, supplemented or otherwise modified or entered
into to the extent that such amendment, supplement or modification, or the
terms of any such new Security Document, would not be permitted under the terms
of this Agreement or the Senior Priority Debt Documents. The Junior Priority
Secured Parties agree that each Security Document that secures Junior Priority
Lien Obligations (but not Senior Priority Lien Obligations) will include the
following language:


 


“Notwithstanding
anything herein to the contrary, the lien and security interest granted to the
Collateral Agent pursuant to this Agreement and the exercise of any right or
remedy by such Collateral Agent hereunder are subject to the provisions of the
Collateral Trust Agreement, dated as of August 11, 2005 (the “Collateral
Trust Agreement”), among the Company, the Parent, the Guarantors from time to time party
thereto, the Secured Debt Representatives from time to time party thereto, The
Bank of New York (or any successor thereto or assignee thereof), as Collateral
Agent, and each other Person which becomes a party thereto by executing and
delivering a Collateral Trust Joinder, as amended, supplemented, amended
and restated or otherwise modified and in effect from time to time. In the
event of any conflict between the terms of the Collateral Trust Agreement and
this Agreement, the terms of the Collateral Trust Agreement will govern”;


 


provided, however, that if the jurisdiction
in which any such Junior Priority Debt Document will be filed prohibits the
inclusion of the language above or would prevent a document containing such
language from being recorded, the Junior Priority Debt Representatives and the
Senior Priority Debt Representatives agree, prior to such Junior Priority Debt
Document being entered into, to negotiate in good faith replacement language
stating that the lien and security interest granted under such Junior Priority
Debt Document is subject to the provisions of this Agreement.


 


Section 8.2                                      Further
Assurances.


 


(a)                                  The Company and each of the other
Obligors will do or cause to be done all acts and things that may be
required, or that the Collateral Agent from time to time may reasonably
request, to assure and confirm that the Collateral Agent holds, for the benefit
of the holders of Secured Obligations, duly created and enforceable and
perfected Liens upon the Pledged Collateral, including after-acquired Pledged
Collateral and any property or assets that become Pledged Collateral pursuant to
the definition thereof after the date hereof, subject only to such exceptions
as may be contemplated by the Secured Debt Documents.


 


(b)                                 If the Company or any other Obligor
at any time acquires any real property or leasehold or other interest in real
property, then within 60 days after such acquisition, the Company or such
Obligor will execute, deliver and record a mortgage or deed of trust, or a
supplement to an existing mortgage or deed of trust, reasonably satisfactory in
form and substance to the Collateral Agent, subjecting such real property,
leasehold or other interest in real property to a Lien to secure the Secured
Obligations.


 


47

















 


(c)                                  Upon the reasonable request of the
Collateral Agent or any Secured Debt Representative at any time and from time
to time, the Company and each of the other Obligors will promptly execute,
acknowledge and deliver such security documents, instruments, certificates,
notices and other documents, and take such other actions as may be
reasonably required, or that the Collateral Agent may reasonably request,
to create, perfect, protect, assure or enforce the Liens and benefits intended
to be conferred, in each case as contemplated by the Secured Debt Documents.


 


(d)                                 Upon the request of the Collateral
Agent, the Company and the other Obligors will permit the Collateral Agent to
visit and inspect any of the Pledged Collateral and examine and, at the Company’s
expense, make abstracts from any of its books and records relating to any of
the Pledged Collateral at any reasonable time and as often as may reasonably
be requested.


 


(e)                                  The Company and the other Obligors
will use commercially reasonable efforts to ensure that all contracts,
agreements, leases and licenses acquired or entered into by any of them after
the date of this Agreement will not contain provisions that will cause them to
be Excluded Assets (it being understood that the provisions of this clause (b) are
in addition to and not in limitation of, the provisions of any Secured Debt
Document).


 


Section 8.3                                      Successors
and Assigns.


 


(a)                                  Except as provided in Section 6.2
and Article VII, the Collateral Agent may not, in its capacity
as such, delegate any of its duties or assign any of its rights hereunder, and
any attempted delegation or assignment of any such duties or rights will be
null and void. All obligations of the Collateral Agent hereunder will inure to
the sole and exclusive benefit of, and be enforceable by, each Secured Debt
Representative and each present and future holder of Secured 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.


 


(b)                                 Neither the Company nor any other
Obligor may delegate any of its duties or assign any of its rights
hereunder, and any attempted delegation or assignment of any such duties or
rights will be null and void. All obligations of the Company and the other
Obligors hereunder will inure to the sole and exclusive benefit of, and be enforceable
by, the Collateral Agent, each Secured Debt Representative and each present and
future holder of Secured 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 8.4                                      Delay and
Waiver. No failure to exercise, no course of dealing with respect to the
exercise of, and no delay in exercising, any right, power or remedy arising
under this Agreement or any of the other Security Documents will impair any
such right, power or remedy or operate as a waiver thereof. No single or
partial exercise of any such right, power or remedy will preclude any other or
future exercise thereof or the exercise of any other right, power or remedy. The
remedies herein are cumulative and are not exclusive of any remedies provided
by law.


 


48

















 


Section 8.5                                      Notices. Any
communications, including notices and instructions, between the parties hereto
or notices provided herein to be given may be given to the following
addresses:


 


	
  If to the Company, Parent

  	
   

  	
   

  
	
  or the
  Guarantors, to:

  	
   

  	
  ICO North
  America, Inc.

  
	
   

  	
   

  	
  3468 Mt.
  Diablo Blvd., Suite B-115

  
	
   

  	
   

  	
  Lafeyette,
  CA 94549

  
	
   

  	
   

  	
  Telecopier
  No.:

  
	
   

  	
   

  	
  Attention:
  Craig Jorgens, President

  
	
   

  	
   

  	
   

  
	
  With a copy
  to:

  	
   

  	
  Davis Wright
  Tremaine LLP

  
	
   

  	
   

  	
  2600 Century
  Square

  
	
   

  	
   

  	
  1501 Fourth
  Avenue

  
	
   

  	
   

  	
  Seattle, WA
  98101

  
	
   

  	
   

  	
  Telecopier No. 206-628-7699

  
	
   

  	
   

  	
  Attention:
  Julie Weston

  
	
   

  	
   

  	
   

  
	
  If to the
  Collateral Agent, to:

  	
   

  	
  The Bank of New
  York

  
	
   

  	
   

  	
  101 Barclay
  Street, 8FL.W

  
	
   

  	
   

  	
  New York, NY
  10286

  
	
   

  	
   

  	
  Facsimile: (212) 815-5704

  
	
   

  	
   

  	
  Attention: Corporate Trust Administration

  
	
   

  	
   

  	
   

  
	
  If to the
  Indenture Trustee, to:

  	
   

  	
  The Bank of New
  York

  
	
   

  	
   

  	
  101 Barclay
  Street, 8FL.W

  
	
   

  	
   

  	
  New York, NY
  10286

  
	
   

  	
   

  	
  Facsimile: (212) 815-5704

  
	
   

  	
   

  	
  Attention: Corporate Trust Administration

  



 


and if to any
other Secured Debt Representative, to such address as it may specify by
written notice to the parties named above.


 


Each notice hereunder will be in writing and may be
personally served or sent by facsimile or United States mail or courier service.
All notices shall be deemed to have been duly given: at the time delivered by
hand, if personally delivered; five Business Days after being deposited in the
mail, postage prepaid, if mailed; when receipt acknowledged, if telecopied; and
the next Business Day after timely delivery to the courier, if sent by
overnight air courier guaranteeing next day delivery. Each party may change
its address for notice hereunder to any other location within the continental
United States by giving written notice thereof to the other parties as set
forth in this Section 8.5.


 


Section 8.6                                      Notice of
Discharge. Promptly following any Discharge of First Priority Lien
Obligation, each First Priority Debt Representative with respect to each
applicable Series of First Priority Lien Debt that is so discharged will
provide written notice of such discharge to the


 


49

















 


Collateral Agent and to each other Secured Debt
Representative. Promptly following any Discharge of Second Priority Lien
Obligation, each Second Priority Debt Representative with respect to each
applicable Series of Second Priority Lien Debt that is so discharged will
provide written notice of such discharge to the Collateral Agent and to each other
Secured Debt Representative.


 


Section 8.7                                      Entire
Agreement. This Agreement states the complete agreement of the parties
relating to the undertaking of the Collateral Agent set forth herein and
supersedes all oral negotiations and prior writings in respect of such
undertaking.


 


Section 8.8                                      Compensation;
Expenses. The Obligors jointly and severally agree to pay, promptly upon
demand:


 


(a)                                  such compensation to the Collateral
Agent and its agents, co-agents and sub-agents as the Company and the
Collateral Agent may agree in writing from time to time;


 


(b)                                 all reasonable costs and expenses
incurred in the preparation, execution, delivery, filing, recordation,
administration or enforcement of this Agreement or any other Security Document
or any consent, amendment, waiver or other modification relating thereto;


 


(c)                                  all reasonable fees, expenses and
disbursements of legal counsel and any auditors, accountants, consultants or
appraisers or other professional advisors and agents engaged by the Collateral
Agent or any Secured Debt Representative incurred in connection with the
negotiation, preparation, closing, administration, performance or enforcement
of this Agreement and the other Security Documents or any consent, amendment,
waiver or other modification relating thereto and any other document or matter
requested by the Company;


 


(d)                                 all reasonable costs and expenses of
creating, perfecting, releasing or enforcing the Collateral Agent’s security
interests in the Pledged Collateral, including filing and recording fees,
expenses and taxes, stamp or documentary taxes, search fees, and title
insurance premiums;


 


(e)                                  all other reasonable costs and
expenses incurred by the Collateral Agent or any Secured Debt Representative in
connection with the negotiation, preparation and execution of the Security
Documents and any consents, amendments, waivers or other modifications thereto
and the transactions contemplated thereby or the exercise of rights or
performance of obligations by the Collateral Agent thereunder; and


 


(f)                                    after the occurrence of any Secured
Debt Default, all costs and expenses incurred by the Collateral Agent or any
Secured Debt Representative in connection with the preservation, collection,
foreclosure or enforcement of the Pledged Collateral subject to the Security
Documents or any interest, right, power or remedy of the Collateral Agent or in
connection with the collection or enforcement of any of the Secured Obligations
or the proof, protection, administration or resolution of any claim based upon
the Secured Obligations in any Insolvency Proceeding, including all fees and
disbursements of attorneys, accountants, auditors, consultants, appraisers and
other professionals engaged by the Collateral Agent or the Secured Debt
Representatives.


 


50

















 


The agreements
in this Section 8.8 will survive repayment of all other Secured
Obligations and the removal or resignation of the Collateral Agent.


 


Section 8.9                                      Indemnity.


 


(a)                                  The Obligors jointly and severally
agree to defend, indemnify, pay and hold harmless the Collateral Agent, each
Secured Debt Representative, each Secured Debtholder and each of their
respective Affiliates and each and (in each case) all of their respective
directors, officers, partners, trustees, employees, attorneys and agents, and
(in each case) their respective heirs, representatives, successors and assigns
(each of the foregoing, an “Indemnitee”)
from and against any and all Indemnified Liabilities; provided, no Indemnitee will be entitled
to indemnification hereunder with respect to any Indemnified Liability to the
extent such Indemnified Liability is found by a final and nonappealable
decision of a court of competent jurisdiction to have resulted from the gross
negligence or willful misconduct of such Indemnitee.


 


(b)                                 All amounts due under Section 8.9(a) will
be payable upon demand.


 


(c)                                  To the extent that the undertakings
to defend, indemnify, pay and hold harmless set forth in Section 8.9(a) may be
unenforceable in whole or in part because they are violative of any law or
public policy, each of the Obligors will contribute the maximum portion that it
is permitted to pay and satisfy under applicable law to the payment and
satisfaction of all Indemnified Liabilities incurred by Indemnitees or any of
them.


 


(d)                                 No Obligor will ever assert any
claim against any Indemnitee, on any theory of liability, for any lost profits
or special, indirect or consequential damages or (to the fullest extent a claim
for punitive damages may lawfully be waived) any punitive damages arising
out of, in connection with, or as a result of, this Agreement or any other
Secured Debt Document or any agreement or instrument or transaction
contemplated hereby or relating in any respect to any Indemnified Liability,
and each of the Obligors hereby forever waives, releases and agrees not to sue
upon any claim for any such lost profits or special, indirect, consequential or
(to the fullest extent lawful) punitive damages, whether or not accrued and
whether or not known or suspected to exist in its favor.


 


(e)                                  The agreements in this Section 8.9
will survive repayment of all other Secured Obligations and the removal or
resignation of the Collateral Agent.


 


Section 8.10                                Severability. If
any provision of this Agreement is invalid, illegal or unenforceable in any
respect or in any jurisdiction, the validity, legality and enforceability of
such provision in all other respects and of all remaining provisions, and of
such provision in all other jurisdictions, will not in any way be affected or
impaired thereby.


 


Section 8.11                                Headings. Section headings
herein have been inserted for convenience of reference only, are not to be
considered a part of this Agreement and will in no way modify or restrict
any of the terms or provisions hereof.


 


Section 8.12                                Obligations Secured.
All obligations of the Obligors set forth in or arising under this Agreement
will be Secured Obligations and are secured by all Liens granted by the
Security Documents.


 


51

















 


Section 8.13                                Governing Law. The
internal law of the State of New York will govern and be used to construe this
Agreement without giving effect to applicable principles of conflicts of law to
the extent that the application of the laws of another jurisdiction would be
required thereby.


 


Section 8.14                                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 other
Security Documents or any dealings between them relating to the subject matter
of this Agreement or the intents and purposes of the other Security 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 and the other Security 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 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 8.14 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 other
Security 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 8.15                                Jurisdiction. Each
party hereby irrevocably submits to the exclusive jurisdiction of the state and
federal courts sitting in The City of New York, Borough of Manhattan, for the
adjudication of any dispute hereunder or in connection herewith or with any
transaction contemplated hereby or discussed herein, and hereby irrevocably
waives, and agrees not to assert in any suit, action or proceeding, any claim
that it is not personally subject to the jurisdiction of any such court, that
such suit, action or proceeding is brought in an inconvenient forum or that the
venue of such suit, action or proceeding is improper. Each party hereby
irrevocably waives personal service of process and consents to process being
served in any such suit, action or proceeding by mailing a copy thereof to such
party at the address for such notices to it under this Agreement and agrees
that such service shall constitute good and sufficient service of process and
notice thereof. Nothing contained herein shall be deemed to limit in any way
any right to serve process in any manner permitted by law.


 


Section 8.16                                Counterparts. This
Agreement may be executed in any number of counterparts, each of which
when so executed and delivered will be deemed an original, but all such
counterparts together will constitute but one and the same instrument.


 


Section 8.17                                Effectiveness. This
Agreement will become effective upon the execution of a counterpart hereof
by each of the parties hereto and receipt by each party of written notification
of such execution and written or telephonic authorization of delivery thereof.


 


52

















 


Section 8.18                                Additional Obligors.
The Company will cause each of its Subsidiaries that becomes an Obligor or is
required by any Secured Debt Document to become a party to this Agreement to
become a party to this Agreement, for all purposes of this Agreement, by
causing such Subsidiary to execute and deliver to the parties hereto a
Collateral Trust Joinder, whereupon such Subsidiary will be bound by the terms
hereof to the same extent as if it had executed and delivered this Agreement as
of the date hereof. The Company agrees to provide each Secured Debt
Representative with a copy of each Collateral Trust Joinder executed and
delivered pursuant to this Section.


 


Section 8.19                                Continuing Nature of
this Agreement. This
Agreement, including the subordination provisions hereof, will be reinstated if
at any time any payment or distribution in respect of any of the Senior
Priority Lien Obligations is rescinded or must otherwise be returned in an
Insolvency Proceeding or otherwise by any of the Senior Priority Secured
Parties or any representative of any such party (whether by demand, settlement,
litigation or otherwise). In the event that all or any part of a payment
or distribution made with respect to the Senior Priority Lien Obligations is
recovered from any of the Senior Priority Secured Parties in an Insolvency
Proceeding or otherwise (and whether by demand, settlement, litigation or
otherwise), any payment or distribution received by any of the Junior Priority
Secured Parties with respect to the Junior Priority Lien Obligations from the
proceeds of any Pledged Collateral or any title insurance policy required by
any real property mortgage at any time after the date of the payment or
distribution that is so recovered, whether pursuant to a right of subrogation
or otherwise, will be deemed to have been received by the Junior Priority
Secured Parties in trust as property for the Senior Priority Secured Parties
and the Junior Priority Secured Parties will forthwith deliver such payment or
distribution to the Collateral Agent, for the benefit of the Senior Priority
Secured Parties, for application to the Senior Priority Lien Obligations (in
accordance with Section 3.4) until such Senior Priority Lien
Obligations have been paid in full in cash and all commitments in respect of
Senior Priority Lien Obligations have been terminated.


 


Section 8.20                                Insolvency. This Agreement will be
applicable both before and after the commencement of any Insolvency Proceeding
by or against any Obligor. The relative rights, as provided for in this
Agreement, will continue after the commencement of any such Insolvency
Proceeding on the same basis as prior to the date of the commencement of any
such case, as provided in this Agreement.


 


Section 8.21                                Rights and
Immunities of Secured Debt Representatives. The Secured Debt Representatives will be entitled to all
of the rights, protections, immunities and indemnities set forth in the credit
agreement, indenture or other agreement governing the applicable Secured Debt
with respect to which such Person is acting or will act as representative, in
each case as if specifically set forth herein. In no event will any Secured
Debt Representative be liable for any act or omission on the part of the
Obligors or the Collateral Agent hereunder.


 


Section 8.22                                No Recourse Against
Parent. NOTWITHSTANDING ANYTHING TO THE CONTRARY SET FORTH IN THIS
AGREEMENT, THE OBLIGATIONS OF PARENT HEREUNDER AND UNDER THE OTHER SECURITY
DOCUMENTS ARE NON-RECOURSE SECURED OBLIGATIONS OF PARENT. THE ONLY RECOURSE THE
COLLATERAL AGENT OR A HOLDER OF THE SECURED DEBT WILL HAVE AGAINST PARENT WITH
RESPECT TO THE PAYMENT OR PERFORMANCE OF ANY OF THE


 


53

















 


SECURED OBLIGATIONS OR ANY OTHER OBLIGATIONS HEREUNDER
WILL BE ENFORCEMENT OF ITS RIGHTS AGAINST THE PLEDGED COLLATERAL PURSUANT TO
THIS AGREEMENT AND THE RELATED SECURITY DOCUMENTS.


 


[signature
page follows]


 


54

















 


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


 


 


	
   

  	
  ICO North America Inc.

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Craig N. Jorgens

  	
   

  
	
   

  	
  Name:

  	
   

  	
   

  
	
   

  	
  Title:

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  ICO Global
  Communications (Holdings) Limited

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Craig N. Jorgens

  	
   

  
	
   

  	
  Name:

  	
   

  	
   

  
	
   

  	
  Title:

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  ICO Satellite Services
  GP

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ D. Schmitt

  	
   

  
	
   

  	
   

  	
  Name: Dennis Schmitt

  	
   

  
	
   

  	
   

  	
  Title: CFO

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  ICO Satellite Management
  LLC

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ D. Schmitt

  	
   

  
	
   

  	
   

  	
  Name: Dennis Schmitt

  	
   

  
	
   

  	
   

  	
  Title:CFO

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  ICO Services Limited

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ D. Schmitt

  	
   

  
	
   

  	
   

  	
  Name: Dennis Schmitt

  	
   

  
	
   

  	
   

  	
  Title: CFO

  	
   

  
								



 

















 


	
   

  	
  ICO Satellite Services
  Limited

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ D. Schmitt

  	
   

  
	
   

  	
   

  	
  Name: Dennis Schmitt

  	
   

  
	
   

  	
   

  	
  Title: CFO

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  ICO Global
  Communications (Canada), Inc.

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ D. Schmitt

  	
   

  
	
   

  	
   

  	
  Name: Dennis Schmitt

  	
   

  
	
   

  	
   

  	
  Title: CFO

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  The Bank of New York, as
  Collateral Agent

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Stacey B. Poindexter

  	
   

  
	
   

  	
   

  	
  Name: STACEY B. POINDEXTER

  	
   

  
	
   

  	
   

  	
  Title: ASSISTANT VICE
  PRESIDENT

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  The Bank of New York, as
  Indenture Trustee

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Stacey B. Poindexter

  	
   

  
	
   

  	
   

  	
  Name: STACEY B. POINDEXTER

  	
   

  
	
   

  	
   

  	
  Title: ASSISTANT VICE
  PRESIDENT

  	
   

  
						



 

















 


EXHIBIT A
to Collateral Trust Agreement


 


[FORM OF]

COLLATERAL TRUST JOINDER


 


The undersigned,                                     ,
a                                     ,
hereby agrees to become party as [an Obligor]  [a First
Priority Debt Representative]  [a Second Priority Debt Representative]
[an Other Junior Debt Representative] under the Collateral Trust Agreement dated as of August 15,
2005, by and among ICO North America, Inc., a Delaware corporation; ICO
Global Communications (Holdings) Limited, a Delaware corporation; the
Guarantors (as defined below) from time to time party thereto; The Bank of New
York, as collateral agent thereunder; The Bank of New York, as trustee under
the Indenture (as defined therein); and the lender or administrative agent
under the Loan Agreement (as defined therein) which becomes a party thereto by
executing and delivering a Collateral Trust Joinder; and to be bound by the
terms of said Collateral Trust Agreement as fully as if the undersigned had
executed and delivered said Collateral Trust Agreement as of the date thereof.


 


The provisions of Article VIII of said
Collateral Trust Agreement will apply with like effect to this Collateral Trust
Joinder.


 


IN WITNESS WHEREOF, the undersigned has executed and
delivered this Joinder as of                                     ,
20       .


 


 


	
   

  	
  [                                                                        ]

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title: