Exhibit 4.2




 





 


COLLATERAL TRUST AND INTERCREDITOR AGREEMENT


 


dated as of December 23, 2009


 


among


 


GEOKINETICS INC.,


 


GEOKINETICS HOLDINGS USA, INC.,


 


the other Guarantors from time to time party hereto,


 


U.S. BANK NATIONAL ASSOCIATION,

as Trustee under the Senior Indenture,


 


the Administrative Agent and the other Priority Debt 

Representatives from time to time party hereto


 


and


 


U.S. BANK NATIONAL ASSOCIATION,

as Collateral Trustee




 





 


 

















 


TABLE OF CONTENTS


 


	
   

  	
   

  	
  Page

  
	
   

  	
   

  
	
  ARTICLE 1 DEFINITIONS; PRINCIPLES OF CONSTRUCTION

  	
  2

  
	
  1.1

  	
  Defined
  Terms

  	
  2

  
	
  1.2

  	
  Rules of
  Interpretation

  	
  14

  
	
  ARTICLE 2 THE TRUST ESTATE

  	
  15

  
	
  2.1

  	
  Declaration
  of Trust

  	
  15

  
	
  2.2

  	
  Special
  Rights in Insolvency Proceedings

  	
  16

  
	
  2.3

  	
  Collateral
  Shared Equally and Ratably

  	
  17

  
	
  ARTICLE 3 OBLIGATIONS AND
  POWERS OF COLLATERAL TRUSTEE

  	
  17

  
	
  3.1

  	
  Undertaking
  of the Collateral Trustee

  	
  17

  
	
  3.2

  	
  Release
  or Subordination of Liens

  	
  18

  
	
  3.3

  	
  Remedies
  Upon Actionable Default

  	
  19

  
	
  3.4

  	
  Application
  of Proceeds

  	
  19

  
	
  3.5

  	
  Powers of
  the Collateral Trustee

  	
  21

  
	
  3.6

  	
  Documents
  and Communications

  	
  21

  
	
  3.7

  	
  For Sole
  and Exclusive Benefit of Holders of Priority Lien Obligations

  	
  21

  
	
  3.8

  	
  Additional
  Priority Lien Debt

  	
  21

  
	
  ARTICLE 4 HEDGING

  	
  22

  
	
  4.1

  	
  Hedge
  Obligations Secured by Priority Liens

  	
  22

  
	
  4.2

  	
  Limitation
  on Rights of Hedge Providers

  	
  22

  
	
  4.3

  	
  Hedge
  Reporting

  	
  23

  
	
  ARTICLE 5 OBLIGATIONS
  ENFORCEABLE BY THE BORROWER AND THE OTHER OBLIGORS

  	
  23

  
	
  5.1

  	
  Release
  of Liens

  	
  23

  
	
  5.2

  	
  Delivery
  of Copies to Priority Debt Representatives

  	
  27

  
	
  5.3

  	
  Collateral
  Trustee not Required to Serve, File or Record

  	
  27

  
	
  5.4

  	
  Release
  under Secured Debt Documents

  	
  27

  
	
  ARTICLE 6 IMMUNITIES OF
  THE COLLATERAL TRUSTEE

  	
  27

  
	
  6.1

  	
  No
  Implied Duty

  	
  27

  
	
  6.2

  	
  Appointment
  of Agents and Advisors

  	
  27

  
	
  6.3

  	
  Co-Collateral
  Trustees

  	
  28

  
	
  6.4

  	
  Other
  Agreements

  	
  29

  
	
  6.5

  	
  Solicitation
  of Instructions

  	
  29

  
	
  6.6

  	
  Limitation
  of Liability

  	
  29

  
	
  6.7

  	
  Documents
  in Satisfactory Form

  	
  30

  
	
  6.8

  	
  Entitled
  to Rely

  	
  30

  
	
  6.9

  	
  Secured
  Debt Default

  	
  30

  
	
  6.10

  	
  Actions
  by Collateral Trustee

  	
  30

  
	
  6.11

  	
  Security
  or Indemnity in Favour of the Collateral Trustee

  	
  30

  
	
  6.12

  	
  Rights of
  the Collateral Trustee

  	
  31

  



 

















 


	
  6.13

  	
  Limitations
  on Duty of Collateral Trustee in Respect of Collateral

  	
  31

  
	
  6.14

  	
  Assumption
  of Rights, Not Assumption of Duties

  	
  32

  
	
  6.15

  	
  No
  Liability for Clean Up of Hazardous Materials

  	
  32

  
	
  ARTICLE 7 RESIGNATION AND
  REMOVAL OF THE COLLATERAL TRUSTEE

  	
  32

  
	
  7.1

  	
  Resignation
  or Removal of Collateral Trustee

  	
  32

  
	
  7.2

  	
  Appointment
  of Successor Collateral Trustee

  	
  33

  
	
  7.3

  	
  Succession

  	
  33

  
	
  7.4

  	
  Merger,
  Conversion or Consolidation of Collateral Trustee

  	
  33

  
	
  ARTICLE 8 REPRESENTATIONS
  AND WARRANTIES

  	
  34

  
	
  8.1

  	
  Representations
  and Warranties of the Obligors

  	
  34

  
	
  8.2

  	
  Survival
  of Representations and Warranties

  	
  34

  
	
  8.3

  	
  Concerning
  the Priority Debt Representatives and Collateral Trustee

  	
  34

  
	
  ARTICLE 9 COVENANTS

  	
  35

  
	
  [RESERVED]

  	
  35

  
	
  ARTICLE 10 MISCELLANEOUS
  PROVISIONS

  	
  35

  
	
  10.1

  	
  Amendment
  and Waiver

  	
  35

  
	
  10.2

  	
  Voting

  	
  36

  
	
  10.3

  	
  Provision
  of Information: Meetings

  	
  37

  
	
  10.4

  	
  Further
  Assurances

  	
  37

  
	
  10.5

  	
  Successors
  and Assigns

  	
  38

  
	
  10.6

  	
  Secured
  Parties in their Individual Capacities

  	
  38

  
	
  10.7

  	
  Delay and
  Waiver

  	
  38

  
	
  10.8

  	
  Notices

  	
  39

  
	
  10.9

  	
  Entire
  Agreement

  	
  39

  
	
  10.10

  	
  Compensation;
  Expenses

  	
  40

  
	
  10.11

  	
  Indemnity

  	
  41

  
	
  10.12

  	
  Severability

  	
  42

  
	
  10.13

  	
  Headings

  	
  42

  
	
  10.14

  	
  Obligations
  Secured

  	
  42

  
	
  10.15

  	
  Governing
  Law

  	
  42

  
	
  10.16

  	
  Consent
  to Jurisdiction

  	
  42

  
	
  10.17

  	
  Waiver of
  Jury Trial

  	
  43

  
	
  10.18

  	
  Counterparts

  	
  43

  
	
  10.19

  	
  Effectiveness

  	
  43

  
	
  10.20

  	
  Additional
  Obligors

  	
  44

  
	
  10.21

  	
  Continuing
  Nature of this Agreement

  	
  44

  
	
  10.22

  	
  Insolvency

  	
  44

  
	
  10.23

  	
  Rights
  and Immunities of Priority Debt Representatives

  	
  44

  
	
   

  	
   

  
	
  EXHIBIT A – Collateral Joinder Agreement

  	
   

  



 


ii
















 


This
Collateral Trust  and Intercreditor
Agreement (this “Agreement”) is
dated as of December 23, 2009 and is by and among GEOKINETICS INC., a Delaware corporation
(the “Parent”), GEOKINETICS HOLDINGS USA, INC., a Delaware
corporation (the “Borrower”), the
other Guarantors (as defined below) from time to time party hereto, U.S. BANK NATIONAL ASSOCIATION, as
Indenture Trustee (as defined below), the Administrative Agent (as defined
below) and the other Priority Debt Representatives (as defined below) from time
to time party hereto, and U.S. BANK NATIONAL
ASSOCIATION, as Collateral Trustee (in such capacity and together
with its successors in such capacity, the “Collateral
Trustee”).


 


RECITALS


 


The
Parent and certain of its subsidiaries intend to acquire the on-shore seismic
and related multi-client library business of Petroleum Geo-Services ASA, a
Norwegian corporation (the “Acquisition”).


 


The
Borrower has issued 9.75% Senior Secured Notes due 2014 (together with any
additional notes issued under the Senior Indenture (as defined below) and any
exchange notes related to such notes and additional notes, the “Senior Notes”)) in an aggregate principal
amount of $300 million pursuant to a Senior Indenture dated as of the date
hereof (as amended, supplemented, amended and restated or otherwise modified
and in effect from time to time, the “Senior
Indenture”) among the Parent, the Borrower, the other guarantors
party thereto and U.S. Bank National Association, as trustee (in such capacity
and together with its successors in such capacity, the “Indenture Trustee”) in order to fund the
Acquisition and related costs and expenses.


 


On
the date on which the Acquisition is consummated (the “Acquisition Closing Date”), the Borrower,
the lenders, arrangers and agents party thereto, Royal Bank of Canada or such
other financial institution as may be selected by the Borrower, as
administrative agent and collateral agent (“Administrative
Agent”), intend to enter into a Credit Agreement (as it may be
amended, restated, supplemented, modified, replaced or refinanced in whole or
in part from time to time with another revolving credit facility, the “Senior  Credit
Agreement”) providing for a $50 million revolving credit facility to
the Borrower by such lenders.


 


Contemporaneously
with the Acquisition Closing Date, the Borrower, the Parent and the other
Guarantors, intend to secure the Obligations under the Senior Indenture and the
Guarantees thereunder, the Senior Credit Agreement and the Guarantees
thereunder, and any future Priority Lien Debt (as defined herein), with Liens
on all then owned and subsequently acquired Collateral to the extent that such
Liens have been provided for in the applicable Security Documents.


 


This
Agreement sets forth the terms on which each Secured Party has appointed the
Collateral Trustee to act as the collateral trustee for the present and future
holders of the Priority Lien Obligations (as defined herein) to receive, hold,
maintain, administer and distribute the Collateral at any time delivered to the
Collateral Trustee or the subject of the Security Documents, and to enforce the
Security Documents and all interests, rights, powers and remedies of the
Collateral Trustee with respect thereto or thereunder and the proceeds thereof.


 

















 


Capitalized
terms used in this Agreement have the meanings assigned to them above or in Article 1
below. 


 


ARTICLE 1

DEFINITIONS; PRINCIPLES OF CONSTRUCTION


 


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


 


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


 


“Acquisition” has the meaning set forth in the recitals.


 


“Act of Instructing Debtholders” means, as to any matter at any
time, a direction in writing delivered to the Collateral Trustee by the
Priority Debt Representative of the holders of the Series of Priority Lien
Debt comprising the largest portion of the outstanding Priority Lien Debt.


 


For
purposes of this definition, neither Hedge Obligations owed to Non-Lender Hedge
Providers nor Secured Debt registered in the name of, or beneficially owned by,
the Borrower or any Affiliate of the Borrower will be deemed to be outstanding
and votes will be determined in accordance with Section 10.2.


 


“Actionable Default” means the occurrence of
any event of default under any Priority Lien Document, the result of which is
that:


 


(a)                                  the holders of
Priority Lien Debt under such Secured Debt Document have the right to declare
all of the Priority Lien Obligations thereunder to be due and payable prior to
the stated maturity thereof; or


 


(b)                                 such Priority Lien Obligations automatically become
due and payable prior to the stated maturity thereof.


 


“Administrative Agent” means Royal Bank of
Canada or such other financial institution selected by the Borrower to act in
such capacity under the Senior Credit Agreement, or any successor
administrative agent appointed under the Senior Credit Agreement.


 


“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 definition, “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.


 


2

















 


“Bankruptcy Code” means Title 11 of the
United States Code entitled “Bankruptcy,” as now and hereafter in effect, or
any successor statue.


 


“Board of Directors” means (a) with
respect to a corporation, the board of directors of the corporation, (b) with
respect to a partnership, the general partners or the management committee of
the partnership, (c) with respect to a limited liability company, the
board of managers of the limited liability company or (d) with respect to
any other Person, the board or committee of such Person serving a similar
function.


 


“Borrower” has the meaning set forth in the
preamble.


 


“Business Day” means any day that is neither
a Saturday or Sunday nor a legal holiday on which the commercial banks are
authorized or required to be closed in New York, New York.


 


“Capital Lease” means, with respect to any
Person, a lease of (or other Indebtedness arrangements conveying the right to
use) real or personal property of such Person which is required to be
classified and accounted for as a capital lease or a liability set forth on the
balance sheet of such Person or such Person’s Subsidiaries in accordance with
GAAP.


 


“Capital Stock” means:


 


(a)                                  in the case of a corporation, corporate stock;


 


(b)                                 in the case of an association or business entity, any
and all shares, interests, participations, rights or other equivalents (however
designated) of corporate stock;


 


(c)                                  in the case of a partnership or limited liability
company, partnership interests (whether general or limited) or membership
interests;


 


(d)                                 in the case of a trust, trust units; and


 


(e)                                  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.


 


“Capitalized Lease Liabilities” of any
Person means all monetary obligations of such Person under any leasing or
similar arrangement which, in accordance with GAAP, would be classified as
Capital Leases, and the amount of such obligations shall be the capitalized
amount thereof, determined in accordance with GAAP.


 


“Cash Equivalents” means:


 


(a)                                  United States dollars and Euros;


 


(b)                                 securities issued or directly and fully guaranteed or
insured by the federal government of the United States of America or any agency
or instrumentality thereof, provided that the full faith and credit of the
federal government of the 


 


3

















 


United States is pledged in
support of those securities) having maturities of not more than 270 days from
the date of acquisition;


 


(c)                                  certificates of deposit with maturities of 270 days or
less from the date of acquisition, bankers’ acceptances or bearer deposits with
maturities not exceeding 270 days and overnight bank deposits, in each case,
with any lender party to the Senior Credit Agreement or with any United States
commercial bank having capital and surplus in excess of U.S.$500,000,000;


 


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


 


(e)                                  commercial paper rated at least P-1 by Moody’s or A-1
by S&P and in each case maturing within 270 days after the date of
acquisition;


 


(f)                                    securities issued and fully guaranteed by any state,
commonwealth or territory of the United States of America, or by any political
subdivision or taxing authority thereof, rated at least “A” by Moody’s or
S&P and having maturities of not more than six months from the date of
acquisition; and


 


(g)                                 money market funds at least 95% of the assets of which
constitute Cash Equivalents of the kinds described in clause (a) through (f) of
this definition.


 


“Collateral” means all assets, now owned or
hereafter acquired, of the Borrower, any Guarantor, or any other Person, to the
extent such assets are pledged or assigned or purported to be pledged or
assigned, or are required to be pledged or assigned under the Secured Debt
Documents to the Collateral Trustee, together with the Proceeds and products
thereof.  For purposes of clarification,
the Collateral shall not include (i) the accounts or any securities, cash
or other property deposited or held therein or any other property described in
that certain Collateral Pledge and Security Agreement dated as of the date
hereof, among Borrower, the Indenture Trustee and U.S. Bank National
Association, as Collateral Agent therein (the “Escrow Agreement”), and (ii) any assets released from the
Liens of the Collateral Trustee in accordance with the Secured Debt Documents
or with respect to which the Collateral Trustee is required to release its
Liens pursuant to this Agreement; provided,
that, if such Liens are required to be released as a result of the sale,
transfer or other disposition of any assets of the Borrower or any Guarantor,
such assets will cease to be excluded from the Collateral if the Borrower or
any Guarantor thereafter acquires or reacquires such assets.


 


“Collateral Trustee” has the meaning set
forth in the preamble.


 


“Collateral Trust Joinder” means an
agreement substantially in the form of Exhibit A.


 


“Credit Facilities” means one or more debt
facilities, including the Senior Credit Agreement, or other financing
arrangements (including, without limitation, commercial paper facilities or
indentures) in favor of an Obligor providing for revolving credit loans, term
loans, 


 


4

















 


letters of credit or other
long term indebtedness, including any note, mortgages, guarantees, collateral
documents, instruments and agreements executed in connection therewith, and any
amendments, supplements, modifications, extensions, renewals, restatements or
refundings thereof and any indentures or credit facilities or commercial paper
facilities that replace, refund or refinance any part of the loans, notes,
other credit facilities or commitments thereunder, including any such
replacement, refunding or refinancing facility or indenture that increases the
amount permitted to be borrowed thereunder or alters the maturity thereof
(provided that such increase in borrowings is permitted pursuant to the Senior
Indenture) or adds Guarantors as additional borrowers.


 


“equally and ratably” means, in reference to
sharing of Liens or proceeds thereof as between Secured Parties, that such
Liens or proceeds:


 


(a)                                  will be allocated and distributed first to the
Priority Debt Representative for each outstanding Series of Priority Lien
Debt, for the account of the holders of such Series of Priority Lien Debt,
ratably in proportion to the principal of, and interest, fees 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 Priority Lien
Debt when the allocation or distribution is made, and thereafter


 


(b)                                 will be allocated and distributed (if any remain after
payment in full of all of the principal of, and interest, fees 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
on such letters of credit) on, all outstanding Priority Lien Obligations within
that Class) to the Priority Debt Representative for each outstanding Series of
Priority Lien Debt, for the account of the holders of any remaining Priority
Lien Obligations, ratably in proportion to the aggregate unpaid amount of such
remaining Priority Lien Obligations due and demanded (with written notice to
the applicable Priority Debt Representative and the Collateral Trustee) prior
to the date such distribution is made.


 


“Fair Market Value” means the value that
would be paid by a willing buyer to a willing seller in a transaction not
involving distress or necessity of either party, (1) determined in good
faith by an officer of the Borrower and evidenced by an Officers’ Certificate
delivered to the Collateral Trustee, if such value is less than or equal to
$5,000,000, or (2) determined in good faith by the Board of Directors of
the Borrower and evidenced by a resolution delivered to the Collateral Trustee,
if such value is greater than $5,000,000.


 


“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
in the statements and pronouncements of the Financial Accounting Standards
Board or in such other statements by such other entity as have been approved by
a significant segment of the accounting profession, which were in effect on the
Issue Date (as defined in the Senior Indenture).


 


5

















 


“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, without limitation, 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 of
another Person.


 


“Guarantors” means each Person (if any) that
at any time provides a Guarantee of any of the Priority Lien Obligations and
their respective successors and assigns.


 


“Hedge Obligations” means the actual
Indebtedness of the Borrower or any other Obligor to a Hedge Provider under or
pursuant to a Hedging Agreement to which it is a party.


 


“Hedge Providers” means any Person who
enters into a Hedging Agreement with the Borrower or any other Obligor to the
extent permitted under each applicable Secured Debt Document and who has
complied with Section 3.8 or is a Lender Hedge Provider.


 


“Hedging Agreement” means any interest rate
swap agreement, commodity swap agreement, foreign exchange swap agreement or
any other derivative or similar agreement which is permitted under each
applicable Secured Debt Document.


 


“Indebtedness” of any Person means, without
duplication:


 


(a)                                  all indebtedness for borrowed money;


 


(b)                                 all obligations issued, undertaken or assumed as the
deferred purchase price of property or services which purchase price is due
more than six months from the date of incurrence of the obligation in respect
thereof or is evidenced by a note or other instrument, except trade accounts
arising in the ordinary course of business;


 


(c)                                  all reimbursement obligations with respect to surety
bonds, letters of credit (to the extent not collateralized with cash or Cash
Equivalents), bankers’ acceptances and similar instruments (in each case,
whether or not matured);


 


(d)                                 all obligations evidenced by notes, bonds, debentures
or similar instruments, including obligations so evidenced incurred in
connection with the acquisition of property, assets or businesses;


 


(e)                                  all indebtedness created or arising under any
conditional sale or other title retention agreement, or incurred as financing,
in either case with respect to property acquired by the Person (even though the
rights and remedies of the seller or bank under such agreement in the event of
default are limited to repossession or sale of such property);


 


(f)                                    all Capitalized Lease Liabilities;


 


(g)                                 all net obligations with respect to Hedging
Agreements; and


 


6

















 


(h)                                 all indebtedness referred to in clauses (a) through
(g) of this definition secured by (or for which the holder of such
indebtedness has an existing right, contingent or otherwise, to be secured by)
any Lien upon or in property (including accounts and contracts rights) owned by
such Person, even though such Person has not assumed or become liable for the
payment of such indebtedness; provided that the amount of such Indebtedness
shall be the lesser of (A) the Fair Market Value of such property at such
date of determination and (B) the amount of such Indebtedness.


 


For
all purposes of this Agreement, the Indebtedness of any Person shall include
the Indebtedness of any partnership in which such Person is a general partner,
unless the terms of the instruments, documents and agreements evidencing such
Indebtedness expressly provide that such Person shall have no personal
liability for such Indebtedness and such provisions are enforceable by such
Person.


 


The
amount of any Indebtedness outstanding as of any date shall be the outstanding
balance at such date of all unconditional obligations as described above and,
with respect to contingent obligations, the maximum liability upon the
occurrence of the contingency giving rise to the obligation, and shall be:


 


(1)           the accreted value thereof,
in the case of any Indebtedness issued with original issue discount; and


 


(2)           the principal amount
thereof, together with any interest thereon that is more than 30 days past due,
in the case of any other Indebtedness.


 


“Indemnified Liabilities” means any and all
liabilities (including all environmental liabilities), obligations, losses,
damages, penalties, actions, judgments, suits, costs, taxes, 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 Priority Lien Debt or the violation of, noncompliance
with or liability under, any law (including environmental laws) applicable to
or enforceable against the Borrower, any of its Subsidiaries or any Guarantor
or any of the 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.


 


“Indemnitee” has the meaning set forth in Section 10.11(a).


 


“Indenture Trustee” has the meaning set
forth in the recitals.


 


“Insolvency Proceeding” means:


 


(a)           any voluntary or involuntary case or proceeding under
the Bankruptcy Code with respect to any Obligor;


 


7

















 


(b)           any other voluntary or involuntary insolvency,
reorganization or bankruptcy case or proceeding, or any receivership,
liquidation, reorganization or other similar case or proceeding, with respect
to the Borrower or any other Obligor or with respect to a material portion of
its assets;


 


(c)           any liquidation, dissolution, reorganization or
winding up of the Borrower or any other Obligor, whether voluntary or
involuntary and whether or not involving insolvency or bankruptcy; or


 


(d)           any assignment for the benefit of creditors or any
other marshalling of assets and liabilities of the Borrower or any other
Obligor.


 


“Lender Hedge Provider” means a Hedge
Provider who enters into a Hedging Agreement that is permitted under the
Secured Debt Documents and who at the time of entering into such Hedging
Agreement is either (a) a lender under a Credit Facility, or (b) an
Affiliate of a lender under a Credit Facility.


 


“Lien” means any lien, mortgage, pledge,
assignment, security interest, charge or encumbrance of any kind (including any
agreement to give any of the foregoing, any conditional sale or other title
retention agreement and any lease in the nature thereof) and any option, trust,
UCC financing statement or other preferential arrangement having the practical
effect of any of the foregoing.


 


“Moody’s” means Moody’s Investors Service, a
division of Dun & Bradstreet Corporation, and its successors and
assigns.


 


“Non-Lender Hedge Provider” means a Hedge
Provider that is not a Lender Hedge Provider (and includes any Lender Hedge
Provider that is no longer a holder of other Priority Lien Debt, or an
Affiliate of such holder, whether or not Section 3.8 has been complied
with).


 


“Note Documents” means the Senior Indenture,
the Senior Notes, the Guarantees of the Senior Notes, each Priority Debt
Sharing Confirmation and the Security Documents.


 


“Notice of Actionable Default” means a written notice given to
the Collateral Trustee stating that an Actionable Default has occurred and is
continuing, delivered by the Priority Debt Representative for the holders of
Priority Lien Obligations that are governed by the Secured Debt Document
pursuant to which the Actionable Default has occurred.


 


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


 


(a)                                  all debt, financial liabilities and obligations of
such Person of whatsoever nature and howsoever evidenced (including principal,
interest, fees, reimbursement obligations, cash cover obligations, penalties,
indemnities and legal and other expenses, whether due after acceleration or
otherwise) to the providers or holders of such Indebtedness or to any agent,
trustee or other representative of such 


 


8

















 


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;


 


(b)                                 any and all sums advanced by the Collateral Trustee or
any other Person in order to preserve the Collateral or any other collateral
securing such Indebtedness or to preserve the Liens and security interests in
the Collateral or any other collateral, securing such Indebtedness; and


 


(c)                                  the costs and expenses of collection and enforcement
of the obligations referred to in clauses (a) and (b) of this
definition, including: (i) the costs and expenses of retaking, holding,
preparing for sale or lease, selling or otherwise disposing of or realizing on
any Collateral or any other collateral; (ii) the costs and expenses of any
exercise by the Collateral Trustee or any other Person of its rights under the
Security Documents or any other security documents; and (iii) reasonable
legal fees and court costs.


 


“Obligor” means the Borrower, the Guarantors
and each other Person (if any) that at any time provides collateral security
for any Priority Lien Obligations.


 


“Officers’ Certificate” means a certificate
with respect to compliance with a condition or covenant provided for in this
Agreement, signed on behalf of the Borrower by two officers of the Borrower, one
of whom must be the principal executive officer, the principal financial
officer, the treasurer or the principal accounting officer of the Borrower,
including:


 


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


 


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


 


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


 


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


 


“Other Priority Debt Representatives” means
Priority Debt Representatives other than the Revolver Agent.


 


9
















 


“Other Priority Lien Debt” means Priority
Lien Debt other than Priority Bank Debt.


 


“Other Priority Lien Obligations” means
Priority Lien Obligations other than Priority Bank Debt Obligations.


 


“Other Priority Lien Secured Parties” means
Secured Parties other than Priority Bank Debt Secured Parties.


 


“Parent” has the meaning set forth in the
recitals.


 


“Priority Bank Debt” means Indebtedness
under the Senior Credit Agreement and the Guarantees thereunder.


 


“Priority Bank Debt Documents” means the
Senior Credit Agreement, the Guarantees of the Senior Credit Agreement, each
Priority Debt Sharing Confirmation and the Security Documents.


 


“Priority Bank Debt Obligations” means the
Priority Bank Debt and all other Obligations in respect thereof.


 


“Priority Bank Debt Secured Parties” means
the holders of Priority Bank Debt Obligations and the Revolver Agent.


 


“Priority Debt Representative” means:


 


(a)                                  in the case of
the Senior Notes and the Guarantees of the Senior Notes, the Indenture Trustee,


 


(b)                                 in the case of
the indebtedness under the Senior Credit Agreement and the Guarantees of the
Senior Credit Agreement, the Revolver Agent, or


 


(c)                                  in the case of
any other Series of Priority Lien Debt, the trustee, agent or
representative of the holders of such Series of Priority Lien Debt who
maintains the transfer register for such Series of Priority Lien Debt and
is appointed as a 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 Priority Lien Debt,
and who has executed a Collateral Trust Joinder.


 


“Priority Debt Sharing Confirmation” means,
as to any Series of Priority Lien Debt, the written agreement of the
holders of such Series of Priority Lien Debt, as set forth in the credit
agreement, indenture or other agreement governing such Series of Priority
Lien Debt, for the benefit of all holders of each other existing and future Series of
Priority Lien Debt and each existing and future Priority Debt Representative,
that all Priority Lien Obligations will be and are secured equally and ratably
by all Liens at any time granted by the Borrower or any other Obligor to secure
any Obligations in respect of such Series of Priority Lien Debt, whether
or not upon property otherwise constituting Collateral, that all such Liens
will be enforceable by the Collateral Trustee for the benefit of all holders of
Priority Lien Obligations equally and ratably, 


 


10

















 


and that the holders of
Obligations in respect of such Series of 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
Trustee to perform its obligations under this Agreement.


 


“Priority Lien” means a Lien granted to the
Collateral Trustee, for the benefit of the Secured Parties, upon any property
of the Borrower or any other Obligor to secure Priority Lien Obligations;
provided, however, that “Priority Lien” shall not include any Lien created or
purported to be created under the Escrow Agreement or any other document,
instrument or agreement executed in connection therewith or relating thereto.


 


“Priority Lien Debt” means:


 


(a)                                  the Senior
Notes and the Guarantees of the Senior Notes issued under and on the date of
the Senior Indenture;


 


(b)                                 Indebtedness
under the Senior Credit Agreement and any Guarantees of such Indebtedness;


 


(c)                                  Indebtedness
under existing Hedging Agreements and any guarantees thereof that, in each
case, was permitted to be incurred and so secured under each applicable Secured
Debt Document (or as to which the lenders under such Hedging Agreement obtained
an Officers’ Certificate at the time of incurrence to the effect that such
Indebtedness was permitted to be incurred and secured by all applicable Secured
Debt Documents); and


 


(d)                                 Indebtedness
under any other Credit Facility or other Hedging Agreements that, in each case,
is secured equally and ratably with the Senior Notes by a Priority Lien that
was permitted to be incurred and so secured under each applicable Secured Debt
Document; provided, in the case of each issue or series of Indebtedness
referred to in this clause (d), that:


 


(i)            on or before the date on
which such Indebtedness is incurred by the Borrower or any other Obligor, as
the case may be, such Indebtedness is designated by the Borrower or any other
Obligor, as the case may be, in an Officers’ Certificate delivered to each
Priority Debt Representative and the Collateral Agent, as “Priority Lien Debt”
for the purposes of the Secured Debt Documents;


 


(ii)           such Indebtedness is
governed by a credit agreement, an indenture or other agreement that includes a
Priority Debt Sharing Confirmation; and


 


(iii)          all requirements set forth
hereunder as to the confirmation, grant or perfection of the Collateral Trustee’s
Lien to secure such Indebtedness or Obligations in respect thereof are
satisfied (and the satisfaction of such requirements and the other provisions
of this clause (iii) will be conclusively established if the Borrower or
any other Obligor, as the case may be, delivers to the Collateral Trustee an
Officers’ Certificate stating that such requirements and other provisions have
been satisfied and that such Indebtedness is “Priority Lien Debt”).


 


11

















 


“Priority Lien Obligations” means the
Priority Lien Debt and all other Obligations in respect thereof, including
Obligations owed to the Collateral Trustee under the Secured Debt Documents.


 


“Parties” means the parties to this
Agreement, and “Party” means any
one of them.


 


“Person” means any natural person,
corporation, partnership, limited liability company, firm, association, trust,
government, governmental agency or any other entity, whether acting in an
individual, fiduciary or other capacity.


 


“Required Priority Debtholders” means
holders of the Series of Priority Lien Debt comprising the largest portion
of the outstanding Priority Lien Debt.


 


“Responsible Officer” means, with respect to
the Collateral Trustee or any Priority Debt Representative, any officer within
the corporate trust department of the Collateral Trustee or any officer of such
Priority Debt Representative, as the case may be, including, in either case,
any managing director, director, vice president, assistant vice president,
associate, trust officer or any other officer of the Collateral Trustee or such
Priority 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 matter related hereto 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.


 


“Revolver Agent” means the Administrative
Agent under the Senior Credit Agreement.


 


“Secured Debt Default” means any event or
condition which, under the terms of any credit agreement, indenture or other
agreement governing any Series of Priority Lien Debt causes, or permits
holders of Priority Lien 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 Priority Lien Debt outstanding
thereunder to become immediately due and payable.


 


“Secured Debt Documents” means,
collectively, the Priority Bank Debt Documents, the Note Documents and the
indenture or agreement governing each other Series of Priority Lien Debt
and all other agreements governing, securing or relating to any Priority Lien
Obligations; provided, however, neither the Escrow Agreement nor any other
security agreement, control agreement, document, instrument or agreement executed
in connection therewith or related thereto shall be or be deemed to be “Security
Documents” for purposes of this Agreement.


 


“Secured Debtholder” means, at any time, a
Person that is at that time the holder of any Priority Lien Debt or has any
commitment with respect to any Priority Lien 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.


 


“Secured Parties” means the holders of
Priority Lien Obligations, any Priority Debt Representatives and the Collateral
Trustee.


 


12

















 


“Security Documents” means this Agreement
and one or more security agreements, debentures, 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 Borrower and each other Obligor creating (or purporting to create) a Lien
upon Collateral in favor of the Collateral Trustee, 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.


 


“Senior  Credit
Agreement” has the meaning set forth in the recitals.


 


“Senior  Indenture”
has the meaning set forth in the recitals.


 


“Senior  Notes”
has the meaning set forth in the recitals.


 


“Series of Priority Lien Debt” means,
severally, the Senior Notes, the Guarantees of the Senior Notes, the
Indebtedness under the Senior Credit Agreement, the Guarantees of the Senior
Credit Agreement and each other issue or series of Priority Lien Debt for which
a single transfer register is maintained, and for purposes hereof, Hedge
Obligations owed to Lender Hedge Providers will be treated as part of the same Series of
Priority Lien Debt as the other Priority Lien Debt owed to such Lender Hedge
Provider or its Affiliate.


 


“S&P” means Standard & Poor’s
Ratings Services and its successors and assigns.


 


“Subsidiary” means, with respect to any specified
Person:


 


(1)                                  any corporation, association or other business entity
of which more than 50% of the total voting power of the Voting Stock is at the
time owned or controlled, directly or indirectly, by such Person or one or more
of the other Subsidiaries of that Person (or a combination thereof); and


 


(2)                                  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 such Person or one or
more Subsidiaries of such Person (or any combination thereof).


 


“Trust Estate” has the meaning set forth in Section 2.1.


 


“UCC” means the Uniform Commercial Code as
in effect from time to time in any applicable jurisdiction.


 


“Voting Stock” of any 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.


 


13

















 


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 assigned to them
in Article 9 of the UCC.


 


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


 


(e)                                  Notwithstanding anything to the contrary in this
Agreement, any references contained herein to any section, clause, paragraph,
definition or other provision of the Senior Indenture (including any definition
contained therein) shall be deemed to be a reference to such section, clause,
paragraph, definition or other provision as in effect on the date of this
Agreement; provided, that any reference to any such section, clause, paragraph
or other provision shall refer to such section, clause, paragraph or other
provision of the Senior Indenture (including any definition contained therein)
as amended or modified from time to time if such amendment or modification has
been (1) made in accordance with the Senior Indenture and (2) approved
by an Act of the Instructing Debtholders in a writing delivered to the
applicable Priority Debt Representatives and the Collateral Trustee.  Notwithstanding the foregoing, whenever any
term used in this Agreement is defined or otherwise incorporated by reference
to the Senior Indenture, such reference shall be deemed to have the same effect
as if such definition or term had been set forth herein in full and such term
shall continue to have the meaning established pursuant to the Senior Indenture
notwithstanding the termination or expiration of the Senior Indenture or
redemption of all Obligations evidenced thereby.


 


14

















 


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


 


(g)                                 In the event of any conflict between any terms and
provisions set forth in this Agreement and those set forth in any other
Security Document, the terms and provisions of this Agreement shall supersede
and control the terms and provisions of such other Security Document.


 


ARTICLE 2

THE TRUST ESTATE


 


2.1                               Declaration of Trust.  


 


To
secure the payment of the Priority Lien Obligations and in consideration of the
premises and the mutual agreements set forth in this Agreement, each of the
Obligors hereby grants to the Collateral Trustee, and the Collateral Trustee
hereby accepts and agrees to hold, in trust under this Agreement for the
benefit of all present and future holders of Priority Lien Obligations, all of
such Obligor’s right, title and interest in, to and under all Collateral
granted to the Collateral Trustee under any Security Document for the benefit
of the Secured Parties, together with all of the Collateral Trustee’s right,
title and interest in, to and under the Security Documents, and all interests,
rights, powers and remedies of the Collateral Trustee thereunder or in respect
thereof and all cash and non-cash proceeds thereof (collectively, the “Trust Estate”).


 


The Collateral Trustee and its successors and
assigns under this Agreement will hold the Trust Estate in trust for the
benefit solely and exclusively of all present and future holders of Priority
Lien Obligations as security for the payment of all present and future Priority
Lien Obligations.


 


Notwithstanding the foregoing, if at any time:


 


(a)                                  all Liens securing the Priority Lien Obligations have
been released as provided in Section 5.1;


 


(b)                                 the Collateral Trustee holds no other property in
trust as part of the Trust Estate;


 


(c)                                  no monetary obligation (other than indemnification and
other contingent obligations not then due and payable and outstanding letters
of credit and bankers’ acceptances that have been cash collateralized as
provided in the Secured Debt Documents) is outstanding and payable under this
Agreement to the Collateral Trustee or any of its co-trustees, agents or
sub-agents (whether in an individual or representative capacity); and


 


15

















 


(d)                                 the Borrower delivers to the Collateral Trustee an
Officers’ Certificate stating that all Liens of the Collateral Trustee have
been released in compliance with all applicable provisions of the Secured Debt
Documents and that the Obligors are not required by any Secured Debt Document
to grant any Lien upon any property to secure the Priority Lien Obligations,


 


then
the senior trust arising hereunder will terminate, except that, notwithstanding
such termination, all provisions set forth in Sections 10.10 and 10.11 enforceable
by the Collateral Trustee or any of its co-trustees, agents or sub-agents
(whether in an individual or representative capacity) will remain enforceable
in accordance with their terms.


 


The Parties further declare and covenant that
the Trust Estate will be held and distributed by the Collateral Trustee subject
to the further agreements herein.


 


2.2                               Special Rights in Insolvency
Proceedings.


 


(a)                                  If in any Insolvency Proceeding, the holders of
Priority Lien Obligations by an Act of Instructing Debtholders consent to any
order:


 


(i)            for use of cash collateral;


 


(ii)           approving a debtor-in-possession financing secured by a Lien that is
senior to or on a parity with all Priority Liens upon any property of the
estate in such Insolvency Proceeding;


 


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


 


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


 


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


 


Notwithstanding the foregoing, both before and during an Insolvency
Proceeding, the other Secured Parties may take any actions and exercise any and
all rights that would otherwise be available to a holder of unsecured claims,
including, without limitation, the commencement of Insolvency Proceedings 


 


16

















 


against
the Borrower or any Obligors in accordance with applicable law; provided,
however, that, both before and during an Insolvency Proceeding, such other
Secured Parties may not challenge the validity, enforceability, perfection or
priority of the Priority Liens.


 


(b)                                 No Secured Party other than the Priority Debt
Representative of the Required Priority Debtholders will file or prosecute in
any Insolvency Proceeding any motion for adequate protection (or any comparable
request for relief) based upon their interest in the Collateral under the
Priority Liens, except that such Secured Party may freely seek and obtain
relief: (A) granting a junior Lien co-extensive in all respects with, but
subordinated to, all Liens granted in such Insolvency Proceeding to, or for the
benefit of, the holders of Priority Lien Obligations; or (B) in connection
with the confirmation of any plan of reorganization or similar dispositive
restructuring plan of the Borrower or any other Obligor.


 


2.3                               Collateral Shared Equally and Ratably.  The Parties agree that the payment and
satisfaction of all of the Priority Lien Obligations will be secured equally
and ratably by the Liens established in favor of the Collateral Trustee for the
benefit of the Secured Parties.  It is
understood and agreed that nothing in this Section 2.3 is intended to
alter the priority of the payment in respect of the Collateral and the proceeds
thereof among Secured Parties belonging to different Series of Priority
Lien Debt as provided in this Agreement.


 


ARTICLE 3

OBLIGATIONS AND POWERS OF COLLATERAL TRUSTEE


 


3.1                               Undertaking of the Collateral Trustee.


 


(a)                                  Subject to, and in accordance with, this Agreement,
the Collateral Trustee will, as trustee, 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 Collateral subject thereto, and all Liens 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 Collateral subject thereto and such interests,
rights, powers and remedies;


 


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


 


17

















 


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


 


(vi)          execute and deliver amendments to the Security Documents as from time to
time authorized by an Act of Instructing Debtholders accompanied by an Officers’
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
Collateral if and as required by Section 5.1(b) or Section 5.1(c).


 


(b)                                 Each party to this Agreement acknowledges and consents
to the undertaking of the Collateral Trustee 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 Trustee will not commence any exercise of
remedies or any foreclosure actions or otherwise take any action or proceeding
against any of the Collateral (other than actions as necessary to prove,
protect or preserve the Liens securing the Priority Lien Obligations) unless
and until it shall have received a Notice of Actionable Default, and then only
in accordance with the provisions of this Agreement.


 


3.2                               Release or Subordination of Liens.


 


The Collateral Trustee will not release or subordinate any Lien of the
Collateral Trustee or consent to the release or subordination of any Lien of
the Collateral Trustee, except:


 


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


 


(b)                                 as required by Article 5; or


 


(c)                                  as ordered pursuant to applicable law under a final
and non-appealable order or judgment of a court of competent jurisdiction.


 


18
















 


3.3                               Remedies Upon Actionable Default.


 


If
the Collateral Trustee at any time receives a Notice of Actionable Default, the
Collateral Trustee will promptly deliver written notice thereof to each
Priority Debt Representative. 
Thereafter, the Collateral Trustee shall await direction by an Act of
Instructing Debtholders and will act, or decline to act, as directed by an Act
of Instructing Debtholders, in the exercise and enforcement of the Collateral
Trustee’s interests, rights, powers and remedies in respect of the Collateral
or under the Security Documents or applicable law and, following the initiation
of such exercise of remedies, the Collateral Trustee will act, or decline to
act, with respect to the manner of such exercise of remedies as directed by an
Act of Instructing Debtholders.  Unless
it has been directed to the contrary by an Act of Instructing Debtholders, the
Collateral Trustee 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 Priority Lien
Obligations.


 


3.4                               Application of Proceeds.


 


(a)                                The Collateral Trustee will apply the proceeds of any
collection, sale, foreclosure or other realization upon any Collateral and the
proceeds of any insurance policy, including any title insurance policy, in the
following order of application and pursuant to wiring instructions as specified
in an Act of Instructing Debtholders:


 


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


 


(ii)                                SECOND, to the Revolver Agent for application to the
payment of all outstanding Priority Bank Debt and any other Priority Bank Debt
Obligations that are then due and payable in such order as may be provided in
the Priority Bank Debt Documents in an amount sufficient to pay in full in cash
all outstanding Priority Bank Debt and all other Priority Bank Debt Obligations
that are then due and payable (including all interest accrued thereon after the
commencement of any Insolvency Proceeding at the rate, including any applicable
post-default rate, specified in the Priority Bank Debt 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 the lower
of (1) 105% of the aggregate undrawn amount and (2) the percentage of
the aggregate undrawn amount required for release of Liens under the terms of
the applicable Priority Bank Debt Document) of all outstanding letters of
credit and bankers’ acceptances constituting Priority Bank Debt);


 


(iii)                             THIRD, to the respective Other Priority Debt
Representatives for application to the payment of all outstanding Other
Priority Lien Debt and 


 


19

















 


any Other Priority Lien
Obligations that are then due and payable in such order as may be provided in
the applicable Secured Debt Documents in an amount sufficient to pay in full in
cash all outstanding Other Priority Lien Debt and all Other Priority Lien
Obligations that are then due and payable (including all interest accrued
thereon after the commencement of any Insolvency Proceeding at the rate,
including any applicable post-default rate, specified in the applicable Secured
Debt 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 the lower of (1) 105% of the aggregate undrawn
amount and (2) the percentage of the aggregate undrawn amount required for
release of Liens under the terms of the applicable Secured Debt Documents) of
all outstanding letters of credit and bankers’ acceptances constituting Other
Priority Lien Debt); and


 


(iv)                            FOURTH, any surplus remaining after the irrevocable
and unconditional payment in full in cash of all of the Priority Lien
Obligations entitled to the benefit of such Collateral will be paid to the
Borrower or the other applicable Obligor, as the case may be, or its successors
or assigns, or as a court of competent jurisdiction may direct.


 


(b)                               Prior to the discharge of the Priority Bank Debt
Obligations, any Other Priority Debt Representative or any holder of Other
Priority Lien Obligations collects or receives any proceeds in respect of the
Priority Lien Obligations that should have been applied to the payment of the
Priority Bank Debt Obligations in accordance with clause (a) above and a
Responsible Officer of such Other Priority Debt Representative shall have
received written notice, or shall have actual knowledge, of the same prior to
such Other Priority Debt Representative’s distribution of such proceeds,
whether after the commencement of an Insolvency Proceeding or otherwise, such
Other Priority Debt Representative or such holder of a Priority Lien
Obligation, as the case may be, will forthwith deliver the same to the Revolver
Agent, for the account of the holders of the Priority Bank Debt Obligations, in
the form received, duly endorsed to the Collateral Trustee, for the account of
the holders of the Priority Bank Debt Obligations to be applied in accordance
with clause (a) above.


 


Until so delivered, such
proceeds will be held by such Other Priority Debt Representative or such holder
of a Priority Lien Obligation, as the case may be, for the benefit of the
holders of the Priority Bank Debt Obligations. 
This Section 3.4(b) shall not apply to payments received by
any holder of Other Priority Lien Obligations if such payments are not proceeds
of any collection, sale, foreclosure or other realization upon any Collateral.


 


20

















 


3.5                               Powers of the Collateral Trustee.


 


(a)                                The Collateral Trustee 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 3 or as requested in any lawful directions given to it from
time to time in respect of any matter by an Act of Instructing Debtholders.


 


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


 


3.6                               Documents and Communications.  The Collateral Trustee will permit each
Priority Debt Representative and each Secured Debtholder 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 communications received by
the Collateral Trustee in its capacity as such.


 


3.7                               For Sole and Exclusive Benefit of
Holders of Priority Lien Obligations.  The Collateral Trustee 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 Trustee and all other property of the Trust
Estate solely and exclusively for the benefit of the present and future holders
of present and future Priority Lien 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.


 


3.8                               Additional Priority Lien Debt.


 


(a)                                The Collateral Trustee will, as trustee hereunder,
perform its undertakings set forth in Section 3.1(a) with respect to
each holder of Priority Lien Obligations of a Series of Priority Lien Debt
that is issued or incurred after the date hereof that:


 


(i)                                   holds Priority Lien Obligations that are identified as
Priority Lien Debt in accordance with the procedures set forth in Section 3.8(b);
and


 


(ii)                                signs, through its designated Priority Debt Representative
identified pursuant to Section 3.8(b), a Collateral Trust Joinder.


 


(b)                               The Borrower 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 Priority Lien Debt incurred by
the Borrower or such other Obligor after the date of this Agreement in
accordance with the terms of the Secured Debt Documents.  The Borrower or other applicable Obligor may
effect such designation by delivering to the Collateral Trustee, with copies to
each previously identified Priority Debt Representative, each of the following:


 


21

















 


(i)                                   an Officers’ Certificate stating that the Borrower or
such other Obligor intends to incur additional Priority Lien Debt secured by
the Collateral (“New Priority Lien Debt”)
which will be Priority Lien Debt permitted by each applicable Secured Debt
Document to be secured by a Priority Lien on a pari
passu basis with all previously existing Priority Lien Debt;


 


(ii)                                evidence that the Borrower or such other Obligor has
duly authorized, executed (if applicable) and recorded (or caused to be
recorded) in each appropriate governmental office all relevant financing
statements, filings and recordations, if any, to ensure that the New Priority
Lien Debt is secured by the Collateral; and


 


(iii)                             a written notice specifying the name and address of
the Priority Debt Representative for such series of New Priority Lien Debt for
purposes of Section 10.8.


 


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


 


(c)                                In the case of a Lender Hedge Provider:


 


(i)                                   unless such Lender Hedge Provider signs a Collateral
Trust Joinder, the execution or Joinder of this Agreement by the Revolver Agent
shall bind such Lender Hedge Provider (or, if such Lender Hedge Provider is an
Affiliate of a Lender, such execution shall bind such Affiliate, and such
Lender shall be jointly and severally liable for the obligations of such
Affiliate, as a Secured Party hereunder) and in either case such Lender Hedge
Provider shall be deemed to have executed a Collateral Trust Joinder for the
purposes of this Agreement; and


 


(ii)                                the Priority Debt Representative of such Lender Hedge
Provider shall be the Revolver Agent.


 


ARTICLE 4

HEDGING


 


4.1                               Hedge Obligations Secured by Priority
Liens.  Upon
compliance with Section 3.8 and subject to Section 4.2, all Hedge
Obligations, to the extent permitted by each of the applicable Secured Debt
Documents, shall form part of the Priority Lien Debt and shall be entitled to
be secured by and receive the benefits of the Priority Lien Debt in the manner
set forth in this Agreement.


 


4.2                               Limitation on Rights of Hedge
Providers.  No Hedge
Provider shall be entitled to vote on, consent to, or provide instructions to
the Collateral Trustee on any matter under or in connection with this Agreement
related to any Obligor (other than an amendment to this 


 


22

















 


Agreement)
unless the only Priority Lien Obligations outstanding are Hedge
Obligations.  A Hedge Provider shall be
entitled to participate in the proceeds of realization of any enforcement
action initiated by the Collateral Trustee in accordance with the terms hereof
and deliver a notice to the Collateral Trustee indicating the same but cannot
vote on consent to, or provide instructions to the Collateral Trustee on any
matter under or in connection with any such enforcement action.  Notwithstanding the foregoing, nothing in
this Section 4.2 shall limit any other rights or remedies any Hedge
Provider may have under the Hedging Agreements to which it is a party or
applicable law.


 


4.3                               Hedge Reporting.  The Borrower shall provide to the Collateral
Trustee and each Priority Debt Representative, upon reasonable request
therefor, a summary of all of its then outstanding Hedge Obligations together
with such particulars as will allow the Collateral Trustee to calculate any
amounts to be distributed to the holders of Priority Lien Debt from time to
time in accordance with the terms of this Agreement.


 


ARTICLE 5


OBLIGATIONS ENFORCEABLE BY THE BORROWER AND THE OTHER OBLIGORS


 


5.1                               Release of Liens.


 


(a)                                The Collateral Trustee shall release its Liens upon
the Collateral pursuant to Section 5.1(b) below:


 


(i)                                   in whole, upon (A) payment in full and discharge
of all outstanding Priority Lien Debt and all other Priority Lien Obligations
that are outstanding, due and payable at the time all of the Priority Lien Debt
is paid in full and discharged and (B) termination or expiration of all
commitments to extend credit under all Secured Debt Documents and the
cancellation or termination or cash collateralization (at the lower of (1) 105%
of the aggregate undrawn amount and (2) the percentage of the aggregate
undrawn amount required for release of Liens under the terms of the applicable
Secured Debt Documents) of all outstanding letters of credit and bankers’
acceptances issued pursuant to any Secured Debt Documents;


 


(ii)                                as to any Collateral that is sold, transferred or
otherwise disposed of by the Borrower or any other Obligor in a transaction or
other circumstance that is not prohibited by the Secured Debt Documents, at the
time of such sale, transfer or other disposition or to the extent of the
interest sold, transferred or otherwise disposed of; and


 


(iii)                             as to any Collateral other than Collateral being
released pursuant to clauses (i) or (ii) of this paragraph (a), if (A) consent
to the release of that Collateral has been given by an Act of Instructing
Debtholders; provided, that if such Collateral represents all or substantially
all of the Collateral, 


 


23

















 


consent to release of such
Collateral has been given by the requisite percentage or number of holders of
each Series of Priority Lien Debt at the time outstanding as provided for
in the applicable Secured Debt Documents and (B) the Borrower has
delivered an Officer’s Certificate to the Collateral Trustee certifying that
any such necessary consents have been obtained; provided, that the Collateral
Trustee receives a copy of the Act of Instructing Debtholders referred to in
clause (A) above.


 


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


 


(i)                                   an Officers’ Certificate stating that (A) the
signing officers have read Article 5 of this Agreement and understand the
provisions and the definitions relating hereto, (B) such officers have
made such examination or investigation as is necessary to enable them 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 Collateral have been complied with, (C) in the opinion of
such officers, such conditions precedent, if any, have been complied with and (D) such
disposition is in compliance with the applicable Secured Debt Documents;


 


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


 


(iii)                             any documents required in order to comply with Section 314
of the Trust Indenture Act;


 


then
the Collateral Trustee will execute (with such acknowledgements and/or
notarizations as are required) and deliver such release to the Borrower or
other applicable Obligor on or before the later of (A) the date specified
in such request for such release and (B) the fourth Business Day after the
date of receipt of the items required by this Section 5.1(b) by the
Collateral Trustee, unless the Collateral Trustee receives written notice from
a Priority Debt Representative that it disputes the accuracy of any of the
foregoing items prior to the expiry of such four Business Day period.


 


(c)                                Notwithstanding Section 5.1(a), upon the
occurrence of the following, the Collateral Trustee’s Lien in the applicable
Collateral specified below shall automatically, without further action, be
released:


 


(i)                                   with respect to any sale, transfer or other
disposition of all or a majority of the Capital Stock issued by any Obligor to
a Person that is not an Affiliate of the Borrower, provided, that such sale,
transfer or other disposition does not violate the terms of any Secured Debt
Document, upon such sale, transfer or other disposition, the Lien of the
Security Documents in such 


 


24

















 


Capital Stock issued by such
Obligor and in the Collateral granted by such Obligor shall automatically,
without further action, be released;


 


(ii)                                with respect to any Collateral that shall be sold,
transferred or otherwise disposed of in the ordinary course of business,
provided, that such sale, transfer or other disposition does not violate the
terms of any Secured Debt Document, upon such sale, transfer or other
disposition, the Lien of the Security Documents in such Collateral shall
automatically, without further action, be released;


 


(iii)                             with respect to any Capital Stock issued by any
Obligor (other than the Parent or the Borrower) that is dissolved, provided,
that such dissolution does not violate the terms of any Secured Debt Document,
upon such dissolution, the Lien of the Security Documents in such capital stock
issued by such Obligor shall automatically, without further action, be
released;


 


(iv)                            with respect to any accounts and related rights of any
Obligor subject to any monetization or securitization transaction, provided
that such transaction does not violate the terms of any Secured Debt Document,
upon the effectiveness of such transaction, the Lien of the Security Documents
in such accounts and related rights, shall automatically, without further
action, be released;


 


(v)                               unless an Actionable Default shall have occurred and
be continuing and the Collateral Trustee shall have received an Act of
Instructing Debtholders to the contrary, with respect to amounts withdrawn from
any accounts by any Obligor pursuant to, and in accordance with, the applicable
Security Documents with respect thereto, and in each case applied to pay
third-party liabilities in the ordinary course of business or to make
restricted payments and permitted investments but only to the extent in
compliance with each other Secured Debt Document, upon such application, the
Lien of the Security Documents in such amounts shall automatically, without
further action, be released;


 


(vi)                            with respect to amounts distributed by the Collateral
Trustee pursuant to, and in accordance with the provisions of this Agreement,
upon such distribution, the Lien of the Security Documents in such amounts
shall automatically, without further action, be released; and


 


(vii)                         with respect to any Collateral for which the release
of the Lien of the Security Documents is provided for pursuant to a provision
of any Security Document, the Lien of the Security Documents on such Collateral
shall automatically, without further action, hereunder be released as provided
for in such provision;


 


25

















 


and,
in each such case, upon request of the Borrower, the Collateral Trustee will
execute (with such acknowledgements and/or notarizations as are required) and
deliver evidence of such release to the Borrower;  provided, however, that within 15 days after
the end of the six-month periods ended on June 30 and December 31 in
each year, the Borrower will deliver to the Collateral Trustee an Officers’
Certificate to the effect that no release of Collateral pursuant to this Section 5.1(c) during
the preceding six-month period has violated the terms of any Secured Debt
Document.


 


(d)                               The Collateral Trustee hereby agrees that:


 


(i)                                   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 written request of
and at the expense of the Borrower or other applicable Obligor, the Collateral
Trustee 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; and


 


(ii)                                at any time when a Secured Debt Default under a Series of
Priority Lien Debt has occurred and is continuing, within one Business Day of
the receipt by it of any Act of Instructing Debtholders pursuant to Section 5.1(a)(iii),
the Collateral Trustee will deliver a copy of such Act of Instructing
Debtholders to each Priority Debt Representative.


 


(e)                                Each Priority Debt Representative hereby agrees that:


 


(i)                                   as soon as reasonably practicable after receipt of an
Officers’ Certificate 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), (B) a written statement that
such release is not permitted by Section 5.1(a) or (C) a request
for further information from the Borrower reasonably necessary to determine
whether the proposed release is permitted by Section 5.1(a) and after
receipt of such information such Priority 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 Trustee pursuant to Section 5.1(d)(ii), such
Priority Debt Representative will deliver a copy of such notice to each
registered holder of the Series of Priority Lien Debt for which it acts as
Priority Debt Representative.


 


26

















 


5.2                               Delivery of Copies to Priority Debt
Representatives.  The
Borrower will deliver to each Priority Debt Representative a copy of each Officers’
Certificate delivered to the Collateral Trustee pursuant to Section 5.1(b),
together with copies of all documents delivered to the Collateral Trustee with
such Officers’ Certificate.  The Priority
Debt Representatives will not be obligated to take notice thereof or to act
thereon, subject to Section 5.1(e).


 


5.3                               Collateral Trustee not Required to
Serve, File or Record.  The Collateral Trustee is not required to
serve, file, register or record any instrument releasing or subordinating its
Lien in any Collateral.


 


5.4                               Release under Secured Debt Documents.


 


(a)                                To the extent that any Secured Debt Document provides
that all or any Obligations thereunder are to be released from any claims in
the Liens of the Collateral Trustee upon the Collateral, in any such case in
accordance with the terms of such Secured Debt Document, the Liens of the
Collateral Trustee upon the Collateral shall no longer secure such Obligations.


 


(b)                               Upon the release of any Guarantor that is a Subsidiary
of its Obligations under (i) any Secured Debt Document in accordance with
the terms thereof, the Liens of the Collateral Trustee upon the Collateral
granted by such Guarantor shall no longer secure such Obligations and (ii) all
Secured Debt Documents, the Liens of the Collateral Trustee upon the Collateral
granted by such Guarantor shall no longer constitute Collateral under any
Security Document.


 


ARTICLE 6


IMMUNITIES OF THE COLLATERAL TRUSTEE


 


6.1                               No Implied Duty.  The Collateral Trustee will not have any
fiduciary duties nor will it have responsibilities or obligations other than
those expressly assumed by it in this Agreement and the other Security
Documents.  The Collateral Trustee will
not be required to take any action that is contrary to applicable law or any
provision of this Agreement or the other Security Documents.  The Collateral Trustee shall have no duty to
monitor compliance by the Borrower or the other Obligors with its duties and
obligations under this Agreement or the other Security Documents, except to the
extent expressly provided herein or therein.


 


6.2                               Appointment of Agents and Advisors.  The Collateral Trustee may execute any of the
trusts or powers hereunder or perform any duties hereunder either directly or
by or through agents, legal counsel, accountants, appraisers or other experts
or advisors selected by it in good faith as it may reasonably require for the
purpose of discharging its duties hereunder and will not be responsible for any
misconduct or negligence on the part of any of them.  The Collateral Trustee may pay remuneration
for all services performed for it in the discharge of its duties hereunder
without taxation for costs or fees of any counsel or attorney.  The Collateral Trustee may act and rely and
shall be protected in acting in good faith on the opinion or advice of or
information obtained from any agent, counsel, accountant, engineer, appraiser
or other expert or 


 


27

















 


advisor,
whether retained or employed by the Collateral Trustee or any other Party, in
relation to any matter arising in the performance of its duties under this
Agreement.


 


6.3                               Co-Collateral Trustees.


 


(a)                                At any time or times, for the purposes of meeting the
legal requirements of any jurisdiction in which any of the Collateral may at
the time be located, the Borrower and the Collateral Trustee shall have power
to appoint and, upon written request of the Collateral Trustee upon the written
instructions of a Priority Debt Representative or otherwise, the Borrower shall
for such purpose join with the Collateral Trustee in the execution, delivery
and performance of all instruments and agreements necessary or proper to
appoint one or more Persons approved by the Collateral Trustee to act as
co-trustee, jointly with the Collateral Trustee, of all or any part of the
Collateral, with such powers as may be provided in the instrument of
appointment, and to vest in such Person or Persons in the capacity aforesaid,
any property, title, right or power deemed necessary or desirable, subject to
the other provisions of this Section 6.3; provided that any person
appointed as a co-trustee hereunder must meet the requirements of Section 7.2.
If the Borrower does not join in such appointment within 15 days after the
receipt by it of a request to do so, or in case it has received a Notice of
Actionable Default, the Collateral Trustee alone shall have power to make such
appointment.


 


(b)                               Should any written instrument from the Borrower be
required by any co-trustee so appointed for more fully confirming to such
co-trustee such property, title, right or power, any and all such instruments
shall, on request, be executed, acknowledged and delivered by the Borrower.


 


(c)                                Every co-trustee shall, to the extent permitted by
law, but to such extent only, be appointed subject to the following terms:


 


(i)                                   All rights, powers, duties and obligations hereunder
in respect of the custody of securities, cash and other personal property held
by, or required to be deposited or pledged with, the Collateral Trustee
hereunder, shall be exercised solely by the Collateral Trustee.


 


(ii)                                The rights, powers, duties and obligations hereby
conferred or imposed upon the Collateral Trustee in respect of any property
covered by such appointment shall be conferred or imposed upon and exercised or
performed by the Collateral Trustee or by the Collateral Trustee and such
co-trustee jointly, as shall be provided in the instrument appointing such
co-trustee, except to the extent that under any law of any jurisdiction in
which any particular act is to be performed, the Collateral Trustee shall be
incompetent or unqualified to perform such act, in which event such rights,
powers, duties and obligations shall be exercised and performed by such
co-trustee.


 


28
















 


(iii)                             The Collateral Trustee at any time, by an instrument
in writing executed by it, with the concurrence of the Borrower evidenced by an
Officers’ Certificate, may accept the resignation of or remove any co-trustee
appointed under this Section 6.3, and, in case it has received a Notice of
Actionable Default, the Collateral Trustee shall have power to accept the
resignation of, or remove, any such co-trustee without the concurrence of the
Borrower. Upon the written request of the Collateral Trustee, the Borrower
shall join with the Collateral Trustee in the execution, delivery and
performance of all instruments and agreements necessary or proper to effectuate
such resignation or removal.  A successor
to any co-trustee so resigned or removed may be appointed in the manner
provided in this Section 6.3.


 


(iv)                            No co-trustee hereunder shall be personally liable by
reason of any act or omission of the Collateral Trustee, or any such other
trustee hereunder.


 


(v)                               Any notice, direction or instruction delivered to the
Collateral Trustee shall be deemed to have been delivered to each such
co-trustee.


 


6.4                               Other Agreements.  The Collateral Trustee has accepted and is
bound by the Security Documents executed by the Collateral Trustee as of the
date of this Agreement and, as directed by an Act of Instructing Debtholders,
the Collateral Trustee 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 Trustee. 
The Collateral Trustee will not otherwise be bound by, or be held
obligated by, the provisions of any credit agreement, indenture or other
agreement governing Priority Lien Debt (other than this Agreement and the other
Security Documents).


 


6.5                               Solicitation of Instructions.


 


(a)                                The Collateral Trustee may at any time solicit written
confirmatory instructions, in the form of an Act of Instructing Debtholders, an
Officers’ 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 and
the other Security Documents.


 


(b)                               Any written direction given to the Collateral Trustee
by an Act of Instructing Debtholders that in the sole judgment of the
Collateral Trustee imposes, purports to impose or might reasonably be expected
to impose upon the Collateral Trustee any obligation or liability not set forth
in or arising under this Agreement and the other Security Documents will not be
binding upon the Collateral Trustee unless the Collateral Trustee elects, at
its sole option, to accept such direction.


 


6.6                               Limitation of Liability.  The Collateral Trustee will not be
responsible or liable for any action taken or omitted to be taken by it
hereunder or under any other Security Documents 


 


29

















 


except
for its own gross negligence, bad faith or willful misconduct as determined by
a court of competent jurisdiction.


 


6.7                               Documents in Satisfactory Form.  The Collateral Trustee 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.


 


6.8                               Entitled to Rely.  The Collateral Trustee may conclusively rely
upon, and shall be fully protected in relying upon, any writing, certificate,
notice, statement, order 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 Trustee may seek and rely upon, and shall be fully protected in
relying 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 Borrower or any other Obligor in compliance with
the provisions of this Agreement or delivered to it by any Priority 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 Trustee 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 or the other Security
Documents has been duly authorized to do so. 
To the extent a certificate, Officers’ Certificate or opinion of counsel
is required or permitted under this Agreement to be delivered to the Collateral
Trustee in respect of any matter, the Collateral Trustee may rely conclusively
on such certificate, Officers’ Certificate or opinion of counsel as to such
matter and such certificate, Officer’s Certificate or opinion of counsel shall
be full warranty and protection to the Collateral Trustee for any action taken,
suffered or omitted by it under the provisions of this Agreement and the other
Security Documents.


 


6.9                               Secured Debt Default.  The Collateral Trustee 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.


 


6.10                        Actions by Collateral Trustee.  As to any matter not expressly provided for
by this Agreement or the other Security Documents, the Collateral Trustee will
act or refrain from acting as directed by an Act of Instructing Debtholders and
will be fully protected if it does so, and any action taken, suffered or
omitted pursuant to hereto or thereto shall be binding on the Secured
Debtholders.


 


6.11                        Security or Indemnity in Favour of
the Collateral Trustee.  The Collateral Trustee 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 


 


30

















 


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.


 


6.12                        Rights of the Collateral Trustee.  In the event of any conflict between any
terms and provisions set forth in this Agreement and those set forth in any
other Security Document, the terms and provisions of this Agreement shall
supersede and control the terms and provisions of such other Security
Document.  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 Collateral held by the Collateral Trustee and the terms of this
Agreement or any of the other Security Documents do not unambiguously mandate
the action the Collateral Trustee is to take or not to take in connection
therewith under the circumstances then existing, or the Collateral Trustee 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 jointly
by the Parties entitled to give such direction or by order of a court of competent
jurisdiction.  Before the Collateral
Trustee acts or refrains from acting, it may require an Officer’s Certificate
or an opinion of counsel reasonable acceptable to the Collateral Trustee, or
both.


 


6.13                        Limitations on Duty of Collateral
Trustee in Respect of Collateral.


 


(a)                                Beyond the exercise of reasonable care in the custody
of Collateral in its possession, the Collateral Trustee will have no duty as to
any 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
Trustee 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
Lien in the Collateral.  The Collateral
Trustee will be deemed to have exercised reasonable care in the custody of the
Collateral in its possession if the Collateral is accorded treatment
substantially equal to that which it accords its own property, and the
Collateral Trustee will not be liable or responsible for any loss or diminution
in the value of any of the Collateral by reason of the act or omission of any
carrier, forwarding agency or other agent or bailee selected by the Collateral
Trustee in good faith.


 


(b)                               The Collateral Trustee will not be responsible for the
existence, genuineness or value of any of the Collateral or for the validity,
perfection, priority or enforceability of the Liens in any of the 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 wilful misconduct on the part of the
Collateral Trustee, for the validity or sufficiency of the Collateral or any
agreement or assignment contained therein, for the validity of the title of any
Obligor to the Collateral, for insuring the Collateral or for the payment of
taxes, charges, assessments or Liens upon the Collateral or otherwise as to the
maintenance of the Collateral.  The
Collateral Trustee hereby disclaims any representation or warranty to the
present and future 


 


31

















 


holders of the Priority Lien
Obligations concerning the perfection of the Liens granted hereunder or in the
value of any of the Collateral.


 


6.14                        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 Trustee 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 Trustee will not be obligated to
perform any of the obligations or duties of any of the parties thereunder other
than the Collateral Trustee.


 


6.15                        No Liability for Clean Up of
Hazardous Materials.  In
the event that the Collateral Trustee 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 Trustee’s sole discretion may cause the
Collateral Trustee to be considered an “owner or operator” under any
environmental laws or otherwise cause the Collateral Trustee to incur, or be
exposed to, any environmental liability or any liability under any other federal,
provincial or local law, the Collateral Trustee reserves the right, instead of
taking such action, either to resign as Collateral Trustee or to arrange for
the transfer of the title or control of the asset to a court appointed
receiver.  The Collateral Trustee will
not be liable to any Person for any environmental liability or any
environmental claims or contribution actions under any federal, provincial or
local law, rule or regulation by reason of the Collateral Trustee’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 7


RESIGNATION AND REMOVAL OF THE COLLATERAL TRUSTEE


 


7.1                               Resignation or Removal of Collateral
Trustee.  Subject to
the appointment of a successor Collateral Trustee as provided in Section 7.2
and the acceptance of such appointment by the successor Collateral Trustee:


 


(a)                                the Collateral Trustee may resign at any time by
giving not less than 45 days’ notice of resignation to each Priority Debt
Representative and the Borrower; and


 


(b)                               the Collateral Trustee may be removed at any time,
with or without cause, by an Act of Instructing Debtholders.


 


32

















 


7.2                               Appointment of Successor Collateral
Trustee.  Upon any
such resignation or removal, a successor Collateral Trustee may be appointed by
an Act of Instructing Debtholders.  If no
successor Collateral Trustee has been so appointed and accepted such
appointment within 30 days after the predecessor Collateral Trustee gave notice
of resignation or was removed, the retiring Collateral Trustee may (at the
expense of the Borrower), at its option, appoint a successor Collateral
Trustee, or petition a court of competent jurisdiction for appointment of a
successor Collateral Trustee, which must be a chartered bank or trust company:


 


(a)                                authorized to exercise corporate trust powers;


 


(b)                               having regulatory capital of at least $100,000,000;


 


(c)                                maintaining an office in Houston, Texas;


 


(d)                               authorized to carry on business in each jurisdiction
where the Collateral is located; and


 


(e)                                that is not a Priority Debt Representative.


 


The Collateral Trustee will
fulfill its obligations hereunder until a successor Collateral Trustee meeting
the requirements of this Section 7.2 has accepted its appointment as
Collateral Trustee and the provisions of Section 7.3 have been satisfied.


 


7.3                               Succession.  When the Person so appointed as successor
Collateral Trustee accepts such appointment:


 


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


 


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


 


Thereafter the predecessor Collateral Trustee will remain entitled to
enforce the immunities granted to it in Article 6 and the provisions of
Sections 10.10 and 10.11.


 


7.4                               Merger, Conversion or Consolidation
of Collateral Trustee.  Any
Person into which the Collateral Trustee may be merged or converted or with
which it may be consolidated, or any Person resulting from any merger,
conversion or consolidation to which the Collateral Trustee shall be a party,
or any Person succeeding to the business of the Collateral Trustee shall be the



 


33

















 


successor
of the Collateral Trustee pursuant to Section 7.3, provided that (a) without
the execution or filing of any paper with any party hereto or any further act
on the part of any of the parties hereto, except where an instrument of
transfer or assignment is required by law to effect such succession, anything
herein to the contrary notwithstanding, such Person satisfies the eligibility
requirements specified in clauses (a) through (e) of Section 7.2
and (b) prior to any such merger, conversion or consolidation, the
Collateral Trustee shall have notified the Borrower and each Priority Debt
Representative thereof in writing.


 


ARTICLE 8


REPRESENTATIONS AND WARRANTIES


 


8.1                               Representations and Warranties of the
Obligors.  Each
Obligor hereby represents and warrants for the benefit of each Priority Debt
Representative, the Collateral Trustee and each Secured Party on the date
hereof, as follows:


 


(a)                                the Borrower and each other Obligor has been duly
formed, validly exists, and has all requisite organizational power and
authority to conduct its business as intended and own its assets;


 


(b)                               the Borrower and each other Obligor has taken all
necessary organizational action to authorize the execution, delivery and
performance of this Agreement;


 


(c)                                the Borrower and each other Obligor has duly
authorized, executed and delivered this Agreement, and the execution and
delivery of this Agreement by it will not violate any applicable law binding
upon it or conflict in any material respect with any agreement to which it is a
party; and


 


(d)                               this Agreement constitutes valid and legally binding
obligations of the Borrower and each other Obligor, enforceable against each of
them in accordance with the terms hereof, subject only to applicable
bankruptcy, insolvency and other laws of general application limiting the
enforceability of creditors’ rights and to general principles of equity,
including the principle that specific performance is an equitable remedy,
available only in the discretion of the court.


 


8.2                               Survival of Representations and
Warranties.  All of the
representations and warranties set forth in Section 8.1 shall survive the
execution and delivery of this Agreement.


 


8.3                               Concerning the Priority Debt
Representatives and Collateral Trustee.


 


(a)                                The Revolver Agent represents and warrants to the
other Priority Debt Representatives that, on and after giving effect to the
transactions contemplated to occur on the Acquisition Closing Date, for all
purposes of this Agreement, it is the authorized agent of the lenders under the
Senior Credit Agreement, and that all of the covenants, agreements and
obligations under this Agreement of the Revolver Agent, including any action
taken or to be taken in furtherance thereof, are 


 


34

















 


binding on the lenders under
the Senior Credit Agreement as though they were parties hereto.


 


(b)                               The Collateral Trustee represents and warrants to the
Priority Debt Representatives that it is duly authorized to enter into this
Agreement and to undertake the obligations expressed herein to be undertaken by
it.


 


ARTICLE 9


COVENANTS


 


[RESERVED].


 


ARTICLE 10


MISCELLANEOUS PROVISIONS


 


10.1                        Amendment and Waiver.


 


The Collateral Trustee,
acting as directed by an Act of Instructing Debtholders, and the Obligors may,
at any time and from time to time, enter into written amendments or agreements
supplemental hereto or to any other Security Document for the purpose of adding
to or waiving any provision of this Agreement or such Security Document,
granting any consent required under any other Security Document or changing any
of the terms thereof; provided that:


 


(a)                                any amendment, waiver or supplement that has the
effect solely of adding or maintaining Collateral, securing additional Priority
Lien Debt that was otherwise permitted by the terms of the Secured Debt
Documents to be secured by the Collateral or preserving or perfecting the Liens
thereon or the rights of the Collateral Trustee therein and other amendments,
waivers and supplements of a technical nature that do not impair the value of
the Liens, will become effective when executed and delivered by the Borrower or
any other applicable Obligor party thereto and the Collateral Trustee;


 


(b)                               no amendment, waiver or supplement that reduces,
impairs or adversely affects the right of any Secured Debtholder


 


(i)                                   to vote its outstanding Priority Lien Debt as to any
matter described as subject to an Act of Instructing Debtholders (or amends the
provisions of this clause (i) or the definitions of “Act of Instructing
Debtholders” or “Actionable Default”),


 


(ii)                                to share in the order of application described in Section 3.4
in the proceeds of enforcement of or realization on any Collateral that has not
been released in accordance with the provisions described in Section 5.1
or


 


(iii)                             to require that Liens securing Priority Lien
Obligations be released only as set forth in the provisions described in Section 5.1,


 


35

















 


will
become effective without the consent of the requisite percentage or number of
holders of each Series of Priority Lien Debt so affected under the
applicable Secured Debt Document; and


 


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


 


The
Collateral Trustee will not enter into any such amendment, waiver or supplement
unless it has received an Officers’ Certificate to the effect that such
amendment, waiver 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 10.1, the Collateral Trustee and the Priority
Debt Representatives will be entitled to receive an opinion of counsel of the
Borrower to the effect that the execution of such document is authorized or
permitted hereunder, and with respect to amendments adding Collateral, the
Collateral Trustee will be entitled to an opinion of counsel of the Borrower
addressing customary perfection, and if such additional Collateral consists of
equity interests of any Person to be held by the Collateral Trustee, priority
matters with respect to such additional Collateral.


 


Notwithstanding
the foregoing, any amendment, waiver, supplement or other agreement with the
purpose of releasing Collateral will only become effective with the consent of
the Persons, if any, required to effect a release of such Collateral in
accordance with the requirements set forth in Section 5.1.


 


10.2                        Voting.  In connection with any matter under this
Agreement requiring a vote of holders of the Priority Lien Debt and subject to Section 4.2,
each Series of Priority Lien Debt will cast its votes as a block in
accordance with the Secured Debt Documents governing such Series of
Priority Lien Debt.  The amount of
Priority Lien Debt to be voted by a Series of Priority Lien Debt will
equal (a) the aggregate principal amount of Priority Lien Debt held by
such Series of Priority Lien Debt (including outstanding letters of credit
whether or not then available to be drawn and Hedge Obligations owed to Lender
Hedge Providers), plus (b) other than in connection with an exercise of
remedies, the aggregate unfunded commitments to extend credit which, when
funded, would constitute Indebtedness of such Series of Priority Lien
Debt.  Following and in accordance with
the outcome of the applicable vote under its Secured Debt Documents, the
Priority Debt Representative of each Series of Priority Lien Debt will
cast at the written direction of the holders that it represents all of its
votes as a block in respect of any vote under this Agreement.  If a consent, approval, waiver,
determination, vote or other direction is required under any Security Document,
then upon the request of the Collateral Trustee or any other Priority Debt
Representative, each Priority Debt Representative shall promptly notify the
Collateral Trustee and each other Priority Debt Representative in writing, as
of any time that the requesting Person may specify in such request (but in no
event less than 3 Business Days from the date of such request), of (i) for
the purpose of determining if there has been an Act of Instructing Debtholders
or otherwise, the aggregate amount of the Priority Lien Debt owing under the
Secured Debt Documents (including, if applicable, any unfunded commitments) in 


 


36

















 


respect
of which such Priority Debt Representative serves as agent or representative as
of such date, and (ii) such other information as the requesting Person may
reasonably request concerning the amounts owing to the Secured Parties that
such Priority Debt Representative represents.


 


10.3                        Provision of Information: Meetings.


 


(a)                                Any Priority
Debt Representative may, at any time following the occurrence and during the
continuation of an Actionable Default, request that a meeting of Secured
Parties be convened, at times and locations specified in the notice, and upon
such request having been given in accordance herewith, such meeting shall be
convened as provided herein.  A request
for a meeting shall be made in a written notice given by any Priority Debt
Representative to the other Priority Debt Representatives and the Collateral
Trustee in accordance herewith.  Each
such notice shall state the date of such meeting (which shall be not less than
10 nor more than 30 days after the date of such notice, unless otherwise agreed
by each Priority Debt Representative and the Collateral Trustee) and a general
outline of the issues to be discussed at such meeting.  Any Secured Party shall have the right to
appoint any Person (including another Secured Party) to act as its
representative at any such meeting of Secured Parties.  No Secured Party shall be obligated to attend
any such meetings, and no votes shall be taken at such meeting unless consented
to by each Priority Debt Representative.


 


(b)                               The Collateral Trustee shall promptly and simultaneously distribute to each Priority Debt
Representative any written notice
it receives in its role as Collateral Trustee, including any written notice received through the
operation of the Secured Debt Documents or the Security Documents.


 


(c)                                Except as otherwise provided herein, the Collateral Trustee may, but shall not have any obligation nor duty to,
participate in any meeting or consultation held pursuant to this Section 10.3.


 


(d)                               The Collateral Trustee shall have the right to
disclose any information disclosed or released to it if in the opinion of the
Collateral Trustee, or its legal counsel, it is required to disclose under any
applicable laws, court order or administrative directions. The Collateral Trustee
shall not be responsible or liable to any party for any loss or damage arising
out of or in any way sustained or incurred or in any way relating to such
disclosure.


 


10.4                        Further Assurances.


 


(a)                                  The Borrower 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 Trustee from time to time may reasonably request, to assure and
confirm that the Collateral Trustee holds, for the benefit of the holders of
Priority Lien Obligations, duly created and enforceable and perfected Liens
upon the Collateral, including after-acquired Collateral and any property or
assets that become Collateral pursuant to the 


 


37

















 


definition thereof after the
date hereof, subject only to such exceptions as may be contemplated by the
Secured Debt Documents.


 


(b)                               Subject to the obligations of the Borrower and each of
the other Obligors pursuant to Section 10.4(a), upon the reasonable
request of the Collateral Trustee or any Priority Debt Representative at any
time and from time to time, the Borrower 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 Trustee 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.


 


10.5                        Successors and Assigns.


 


(a)                                Except as provided in Section 6.2, the Collateral
Trustee 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
Trustee hereunder will inure to the sole and exclusive benefit of, and be
enforceable by, each Priority Debt Representative and each present and future
holder of Priority Lien 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 Borrower 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 Borrower and the other Obligors hereunder will
enure to the sole and exclusive benefit of, and be enforceable by, the
Collateral Trustee, each Priority Debt Representative and each present and
future holder of Priority Lien 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.


 


10.6                        Secured Parties in their Individual
Capacities.  Each
Secured Party and its Affiliates may make loans to, accept deposits from and
generally engage in any kind of business with the Obligors and any other
parties to the Security Documents and the Secured Debt Documents as though it
were not a Secured Party hereunder or a party to the other Secured Debt
Documents. With respect to the extensions of credit made by it under a Secured
Debt Document, each Priority Debt Representative shall have the same rights and
powers under this Agreement and the other Secured Debt Documents as any other
Secured Party making a comparable, extension of credit to the Obligors and may
exercise the same as though it were not a Priority Debt Representative.


 


10.7                        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


 


38
















 


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.


 


10.8                        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 Collateral Trustee:

  	
   

  	
  U.S. Bank National Association

  
	
   

  	
   

  	
  5555 San Felipe, Suite 1150

  
	
   

  	
   

  	
  Houston, Texas 77056

  
	
   

  	
   

  	
  Attn.: Steven Finklea

  
	
   

  	
   

  	
  Telephone: (713) 235-9208

  
	
   

  	
   

  	
  Fax: (713) 235-9213

  
	
   

  	
   

  	
   

  
	
  If
  to the Borrower or any Guarantor:

  	
   

  	
  Geokinetics Holdings
  USA, Inc.

  
	
   

  	
   

  	
  1500 CityWest Blvd.,
  Suite 800

  
	
   

  	
   

  	
  Houston, Texas 77042

  
	
   

  	
   

  	
  Attention: Scott A.
  McCurdy

  
	
   

  	
   

  	
  Telephone: (713) 850-7600

  
	
   

  	
   

  	
  Fax: (713) 850-7330

  
	
   

  	
   

  	
   

  
	
  If
  to the Indenture Trustee:

  	
   

  	
  U.S. Bank National Association

  
	
   

  	
   

  	
  5555 San Felipe, Suite 1150

  
	
   

  	
   

  	
  Houston, Texas 77056

  
	
   

  	
   

  	
  Attn.: Steven Finklea

  
	
   

  	
   

  	
  Telephone: (713) 235-9208

  
	
   

  	
   

  	
  Fax: (713) 235-9213

  



 


and
if to the Administrative Agent or any other Priority 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 courier service and will be deemed to have been given
when delivered in person or by courier service and signed for against receipt
thereof or upon receipt of facsimile.  Each
party may change its address for notice hereunder by giving written notice
thereof to the other parties as set forth in this Section 10.8.


 


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


 


10.9                        Entire Agreement.  This Agreement states the complete agreement
of the parties relating to the undertaking of the Collateral Trustee set forth
herein and supersedes all oral negotiations 


 


39

















 


and
prior writings in respect of such undertaking and no implied duties or
obligations shall be read into the Agreement against the Collateral Trustee.


 


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


 


(a)                                such compensation to the Collateral Trustee and its
agents, co-agents and sub-agents as the Borrower and the Collateral Trustee 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, experts and agents engaged by the Collateral Trustee or
any Priority 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 Borrower;


 


(d)                               all reasonable costs and expenses of creating,
perfecting, releasing or enforcing the Collateral Trustee’s security interests
in the 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 Trustee or any Priority 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 Trustee thereunder; and


 


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


 


40

















 


None of the provisions contained in this Agreement or any supplement
shall require the Collateral Trustee to expend or risk its own funds or
otherwise incur financial liability in performing its duties or in the exercise
of any of its rights or powers.


 


The agreements in this Section 10.10 will survive repayment of all
other Priority Lien Obligations, the termination of this Agreement and the
removal or resignation of the Collateral Trustee.


 


10.11                 Indemnity.


 


(a)                                In addition to and without limiting any other
protection of the Collateral Trustee hereunder or otherwise by law, the
Obligors jointly and severally agree to defend, indemnify, pay and hold
harmless the Collateral Trustee, each Priority Debt Representative, each
Secured Debtholder and each of their respective Affiliates and each and all of
the 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 whether groundless or
otherwise, howsoever arising from or out of any act, omission or error of the
Collateral Trustee in connection with its acting as Collateral Trustee
hereunder; 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 non-appealable decision of a
court of competent jurisdiction to have resulted from the gross negligence or
wilful misconduct of such Indemnitee.


 


(b)                               All amounts due under this Section 10.11 will be
payable upon demand.


 


(c)                                To the extent that the undertakings to defend,
indemnify, pay and hold harmless set forth in Section 10.11(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, and each of them hereby
waives, 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 favour.


 


41

















 


(e)                                The agreements in this Section 10.11 will survive
repayment of all other Priority Lien Obligations, the termination of this
Agreement and the removal or resignation of the Collateral Trustee or the
Priority Debt Representatives.


 


(f)                                  To the extent the Collateral Trustee is not fully
indemnified pursuant to Section 10.11(a), each Secured Debtholder shall,
severally but not jointly based on its percentage share of the aggregate
Priority Lien Obligations at the applicable time, indemnify the Collateral
Trustee and its directors, officers, partners, trustees, employees, attorneys
and agents and their respective heirs, representatives, successors and assigns
from and against any Indemnified Liabilities against them whether groundless or
otherwise, howsoever arising from or out of any act, omission or error of the
Collateral Trustee in connection with its acting as Collateral Trustee
hereunder; provided that each Secured Debtholder shall not be required to
indemnify the Collateral Trustee to the extent that such Indemnified Liability
results from the gross negligence or wilful misconduct of the Collateral
Trustee as determined by a final and non-appealable decision of a court of
competent jurisdiction.  Notwithstanding
anything herein to the contrary, except as set forth in the preceding sentence,
any indemnity contained in this Agreement shall apply regardless of the
negligence (whether such negligence is sole, joint, concurrent, active or
passive) other than gross negligence of the Collateral Trustee, and regardless
of any pre-existing condition or defect or any form of strict liability.  If and to the extent that the foregoing
undertaking may be unenforceable for any reason, subject to the same
limitations as set forth above, each Secured Debtholder hereby agrees to make
the maximum contribution to the payment and satisfaction of each of the such
Indemnified Liabilities which is permissible under applicable law.


 


10.12                 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.


 


10.13                 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.


 


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


 


10.15                 Governing Law.  This Agreement shall be governed by the laws
of the State of New York; provided, however, that the rights, duties and
obligations of the Indenture Trustee related to, or in respect of, the Notes
and the holders thereof shall be governed by the Indenture.


 


10.16                 Consent to Jurisdiction.  All judicial proceedings brought against any
Party arising out of or relating to this Agreement or any of the other Security
Documents may be brought in any 


 


42

















 


court
of competent jurisdiction in the State of New York.  By executing and delivering this Agreement,
each Obligor, for itself and in connection with its properties, irrevocably:


 


(a)                                accepts generally and unconditionally the
non-exclusive jurisdiction and venue of such courts;


 


(b)                               waives any defense of forum
non conveniens;


 


(c)                                agrees that service of all process in any such
proceeding in any such court may be made by registered or certified mail,
return receipt requested, to such party at its address provided in accordance
with Section 10.8;


 


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


 


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


 


10.17                 Waiver of Jury Trial.  Each party 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 acknowledges that this waiver is a
material inducement to enter into a business relationship, that each party has
already relied on this waiver in entering into this Agreement, and that each
party will continue to rely on this waiver in its related future dealings.  Each party 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 10.17 and
executed by each of the Parties), 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.


 


10.18                 Counterparts.  This Agreement may be executed in any number
of counterparts (including by facsimile or electronic transmission), 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.


 


10.19                 Effectiveness.  This Agreement will become effective only
upon, and no Obligor shall have any obligation or liability hereunder unless
and until, (i) a counterpart hereof is executed by 


 


43

















 


each
of the parties, (ii) receipt by each party of written notification of such
execution and written or telephonic authorization of delivery thereof, and (iii) the
Acquisition Closing Date shall have occurred.


 


10.20                 Additional Obligors.  The Borrower 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 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 Borrower agrees to provide each Priority
Debt Representative with a copy of each Collateral Trust Joinder executed and
delivered pursuant to this Section.


 


10.21                 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 Priority Lien Obligations is rescinded or must
otherwise be returned in an Insolvency Proceeding or otherwise by any of the
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 Priority Bank Debt Obligations is recovered from any of the Other
Priority Lien 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 Other Priority Lien Secured Parties with
respect to the Other Priority Lien Obligations from the proceeds of any
Collateral 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 Other Priority Lien Secured Parties in
trust as property for the Priority Bank Debt Secured Parties and the Other
Priority Lien Secured Parties will forthwith deliver such payment or
distribution to the Collateral Trustee, for the benefit of the Priority Bank
Debt Secured Parties, for application to the Priority Bank Debt Obligations
until such Priority Bank Debt Obligations have been paid in full in cash and
all commitments in respect of Priority Bank Debt Obligations have been
terminated.


 


10.22                 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.


 


10.23                 Rights and Immunities of Priority
Debt Representatives.  The
Administrative Agent will be entitled to all of the rights, protections,
immunities and indemnities set forth in the Senior Credit Agreement, the
Indenture Trustee will be entitled to all of the rights, protections,
immunities and indemnities set forth in the Senior Indenture and any future
Priority Debt Representative 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 Priority Lien Debt with
respect to which such Person will act as representative, in each case as if
specifically set forth herein. In no event will any Priority Debt
Representative be liable for any act or omission on the part of the Obligors or
the Collateral Trustee hereunder.


 


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[The remainder of has intentionally
been left blank.]


 


45

















 


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


 


 


	
   

  	
  GEOKINETICS
  INC., as Parent

  
	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Scott A. McCurdy

  
	
   

  	
   

  	
  Name:

  	
  Scott A. McCurdy

  
	
   

  	
   

  	
  Title:

  	
  Vice President and Chief
  Financial Officer

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  GEOKINETICS
  HOLDINGS USA, INC., as Borrower

  
	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Scott A. McCurdy

  
	
   

  	
   

  	
  Name:

  	
  Scott A. McCurdy

  
	
   

  	
   

  	
  Title:

  	
  Vice President

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  U.S. BANK
  NATIONAL ASSOCIATION, as Indenture Trustee

  
	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Steven A. Finklea

  
	
   

  	
   

  	
  Name:

  	
  Steven A. Finklea

  
	
   

  	
   

  	
  Title:

  	
  Vice President

  



 

















 


	
   

  	
  U.S. BANK
  NATIONAL ASSOCIATION, as Collateral Trustee

  
	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Steven A. Finklea

  
	
   

  	
   

  	
  Name:

  	
  Steven A. Finklea

  
	
   

  	
   

  	
  Title:

  	
  Vice President

  



 

















 


EXHIBIT A


to Collateral Trust Agreement


 


FORM OF COLLATERAL TRUST JOINDER


 


The undersigned,
[        ], a
[      ], hereby agrees to become party as [an Obligor] [an Administrative Agent] [a Priority
Debt Representative] [a Non-Lender Hedge Provider] under the Collateral
Trust and Intercreditor Agreement dated as of December 23, 2009 among
Geokinetics Holdings, Inc., the Guarantors from time to time party
thereto, U.S. Bank National Association, as Indenture Trustee and U.S. Bank
National Association, as Collateral Trustee, as amended, supplemented, amended
and restated or otherwise modified and in effect from time to time, for all
purposes thereof on the terms set forth therein, and to be bound by the terms
of said Collateral Trust and Intercreditor Agreement as fully as if the
undersigned had executed and delivered said Collateral Trust and Intercreditor
Agreement as of the date thereof.


 


The provisions of Article 10
of said Collateral Trust and Intercreditor Agreement will apply with like
effect to this Joinder.


 


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


 


[      ]


 


	
  By:

  	
   

  	
   

  
	
  Name:

  	
   

  
	
  Title: