exv4w3






Exhibit 4.3




 

 








COLLATERAL TRUST AGREEMENT




dated as of June 5, 2009




among




CRICKET COMMUNICATIONS, INC.,




the Guarantors from time to time party hereto,




WILMINGTON TRUST FSB,

as Trustee under the Indenture,




the other Secured Debt

Representatives from time to time party hereto




and




WILMINGTON TRUST FSB,

as Collateral Trustee




 

 






 









 












TABLE OF CONTENTS




	 	 	 	 	 	 	 
	 	 	 	 	Page	 
	 
	ARTICLE 1. DEFINITIONS; PRINCIPLES OF CONSTRUCTION	 	 	1	 
	SECTION 1.1
	 	Defined Terms	 	 	1	 
	SECTION 1.2
	 	Rules of Interpretation	 	 	14	 
	 
	 	 	 	 	 	 
	ARTICLE 2. THE TRUST ESTATES	 	 	15	 
	SECTION 2.1
	 	Declaration of Senior Trust	 	 	15	 
	SECTION 2.2
	 	Declaration of Junior Trust	 	 	17	 
	SECTION 2.3
	 	Priority of Liens	 	 	18	 
	SECTION 2.4
	 	Restrictions on Enforcement of Junior Liens	 	 	18	 
	SECTION 2.5
	 	Waiver of Right of Marshalling	 	 	20	 
	SECTION 2.6
	 	Discretion in Enforcement of Parity Liens	 	 	20	 
	SECTION 2.7
	 	Discretion in Enforcement of Parity Lien Obligations	 	 	21	 
	SECTION 2.8
	 	Insolvency or Liquidation Proceedings	 	 	22	 
	SECTION 2.9
	 	Collateral Shared Equally and Ratably within Class	 	 	23	 
	SECTION 2.10
	 	Separate Grants of Security and Separate Classification	 	 	23	 
	 
	 	 	 	 	 	 
	ARTICLE 3. OBLIGATIONS AND POWERS OF COLLATERAL TRUSTEE	 	 	24	 
	SECTION 3.1
	 	Undertaking of the Collateral Trustee	 	 	24	 
	SECTION 3.2
	 	Release or Subordination of Liens	 	 	25	 
	SECTION 3.3
	 	Enforcement of Liens	 	 	25	 
	SECTION 3.4
	 	Application of Proceeds	 	 	26	 
	SECTION 3.5
	 	Powers of the Collateral Trustee	 	 	27	 
	SECTION 3.6
	 	Documents and Communications	 	 	27	 
	SECTION 3.7
	 	For Sole and Exclusive Benefit of Holders of Secured Obligations	 	 	28	 
	SECTION 3.8
	 	Additional Secured Debt	 	 	28	 
	 
	 	 	 	 	 	 
	ARTICLE 4. OBLIGATIONS ENFORCEABLE BY THE COMPANY AND THE OTHER GUARANTORS	 	 	29	 
	SECTION 4.1
	 	Release of Liens on Collateral	 	 	29	 
	SECTION 4.2
	 	Delivery of Copies to Secured Debt Representatives	 	 	31	 
	SECTION 4.3
	 	Collateral Trustee not Required to Serve, File, Register or Record	 	 	31	 
	SECTION 4.4
	 	Release of Liens in Respect of Secured Debt	 	 	31	 
	 
	 	 	 	 	 	 
	ARTICLE 5. IMMUNITIES OF THE COLLATERAL TRUSTEE	 	 	32	 
	SECTION 5.1
	 	No Implied Duty	 	 	32	 
	SECTION 5.2
	 	Appointment of Agents and Advisors	 	 	32	 
	SECTION 5.3
	 	Other Agreements	 	 	32	 
	SECTION 5.4
	 	Solicitation of Instructions	 	 	33	 
	SECTION 5.5
	 	Limitation of Liability	 	 	33	 
	SECTION 5.6
	 	Documents in Satisfactory Form	 	 	33	 
	SECTION 5.7
	 	Entitled to Rely	 	 	33	 
	SECTION 5.8
	 	Secured Debt Default	 	 	34	 
	SECTION 5.9
	 	Actions by Collateral Trustee	 	 	34	 
	SECTION 5.10
	 	Security or Indemnity in Favor of the Collateral Trustee	 	 	34	 






 









 






	 	 	 	 	 	 	 
	 	 	 	 	Page	 
	 
	SECTION 5.11
	 	Rights of the Collateral Trustee	 	 	34	 
	SECTION 5.12
	 	Limitations on Duty of Collateral Trustee in Respect of Collateral	 	 	34	 
	SECTION 5.13
	 	Assumption of Rights, Not Assumption of Duties	 	 	35	 
	SECTION 5.14
	 	No Liability for Clean Up of Hazardous Materials	 	 	35	 
	 
	 	 	 	 	 	 
	ARTICLE 6. RESIGNATION AND REMOVAL OF THE COLLATERAL TRUSTEE	 	 	36	 
	SECTION 6.1
	 	Resignation or Removal of Collateral Trustee	 	 	36	 
	SECTION 6.2
	 	Appointment of Successor Collateral Trustee	 	 	36	 
	SECTION 6.3
	 	Succession	 	 	36	 
	SECTION 6.4
	 	Merger, Conversion or Consolidation of Collateral Trustee	 	 	37	 
	 
	 	 	 	 	 	 
	ARTICLE 7. MISCELLANEOUS PROVISIONS	 	 	37	 
	SECTION 7.1
	 	Amendment	 	 	37	 
	SECTION 7.2
	 	Voting	 	 	39	 
	SECTION 7.3
	 	Further Assurances; Insurance	 	 	40	 
	SECTION 7.4
	 	Perfection of Junior Trust Estate	 	 	41	 
	SECTION 7.5
	 	Successors and Assigns	 	 	41	 
	SECTION 7.6
	 	Delay and Waiver	 	 	41	 
	SECTION 7.7
	 	Notices	 	 	42	 
	SECTION 7.8
	 	Notice Following Discharge of Parity Lien Obligations	 	 	43	 
	SECTION 7.9
	 	Entire Agreement	 	 	43	 
	SECTION 7.10
	 	Compensation; Expenses	 	 	43	 
	SECTION 7.11
	 	Indemnity	 	 	44	 
	SECTION 7.12
	 	Severability	 	 	45	 
	SECTION 7.13
	 	Headings	 	 	45	 
	SECTION 7.14
	 	Obligations Secured	 	 	45	 
	SECTION 7.15
	 	Governing Law	 	 	45	 
	SECTION 7.16
	 	Consent to Jurisdiction	 	 	45	 
	SECTION 7.17
	 	Waiver of Jury Trial	 	 	45	 
	SECTION 7.18
	 	Counterparts	 	 	46	 
	SECTION 7.19
	 	Effectiveness	 	 	46	 
	SECTION 7.20
	 	Additional Guarantors	 	 	46	 
	SECTION 7.21
	 	Continuing Nature of this Agreement	 	 	46	 
	SECTION 7.22
	 	Insolvency	 	 	47	 
	SECTION 7.23
	 	Rights and Immunities of Secured Debt Representatives	 	 	47	 
	SECTION 7.24
	 	Intercreditor Agreement	 	 	47	 





EXHIBIT A  —  Additional Secured Debt Designation



EXHIBIT B  —  Form of Collateral Trust Joinder—Additional Debt



EXHIBIT C  —  Form of Collateral Trust Joinder—Additional Guarantor



EXHIBIT D  —  Form of Intercreditor Agreement





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     This Collateral Trust Agreement (this “Agreement”) is dated as of June 5, 2009 and is by and
among Cricket Communications Inc., a Delaware corporation (the “Company”), the Guarantors from time
to time party hereto, Wilmington Trust FSB, as Trustee (as defined below), the other Secured Debt
Representatives from time to time party hereto, and Wilmington Trust FSB, as Collateral Trustee (in
such capacity and together with its successors in such capacity, the “Collateral Trustee”).



RECITALS




     The Company intends to issue 7.75% Senior Secured Notes due 2016 (together with any additional
notes issued under the Indenture (as defined below) and any exchange notes related to such notes
and additional notes, the “Notes”) in an aggregate principal amount of $1,100,000,000 pursuant to
an Indenture dated as of the date hereof (as amended, supplemented, amended and restated or
otherwise modified and in effect from time to time, the “Indenture”) among the Company, the
Guarantors party thereto from time to time and Wilmington Trust FSB, as trustee (in such capacity
and together with its successors in such capacity, the “Trustee”).



     The Company and the Guarantors intend to secure the Obligations under the Notes, the
Guarantees of the Notes and the Indenture and any future Parity Lien Debt and any future Junior
Lien Debt, with Liens on all present and future 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 Secured
Obligations 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.



AGREEMENT




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



ARTICLE 1. DEFINITIONS; PRINCIPLES OF CONSTRUCTION




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



     “Act of Required Debtholders” means, as to any matter at any time:




     (1) prior to the Discharge of Parity Lien Obligations, a direction in writing delivered
to the Collateral Trustee by or with the written consent of the holders of a majority of the
sum of:



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     (a) the aggregate outstanding principal amount of Parity Lien Debt (including
outstanding letters of credit whether or not then available or drawn); and




     (b) the aggregate unfunded commitments to extend credit which, when funded,
would constitute Parity Lien Debt; and




     (2) at any time after the Discharge of Parity Lien Obligations, a direction in writing
delivered to the Collateral Trustee by or with the written consent of the holders of Junior
Lien Debt representing the Required Junior Lien Debtholders.


For purposes of this definition, (a) Secured Debt registered in the name of, or beneficially owned
by, the Company or any Affiliate of the Company will be deemed not to be outstanding and (b) votes
will be determined in accordance with Section 7.2.




     “Additional Secured Debt” has the meaning set forth in Section 3.8.



     “Additional Secured Debt Designation” means a notice in substantially the form of Exhibit
A.



     “Affiliate” of any specified Person means (1) any other Person directly or indirectly
controlling or controlled by or under direct or indirect common control with such specified Person,
(2) any executive officer or director of such specified Person or (3) any Designated Entity. 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. For
purposes of this definition, the terms “controlling,” “controlled by” and “under common control
with” will have correlative meanings.



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



     “Attributable Debt” has the meaning assigned to it in the Indenture.



     “Business Day” means any day other than a Saturday, a Sunday or a day on which banking
institutions in the City of New York or at a place of payment are authorized or required by law,
regulation or executive order to remain closed.



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



     “Capital Stock” means:




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



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     (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 or
membership interests (whether general or limited); and




     (d) 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.



     “Class” means (a) in the case of Parity Lien Debt, every Series of Parity Lien Debt, taken
together, and (b) in the case of Junior Lien Debt, every Series of Junior Lien Debt, taken
together.



     “Collateral” means all assets, now owned or hereafter acquired, of the Company, 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 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 Company or any Guarantor, such assets will cease to be excluded from the
Collateral if the Company or any Guarantor thereafter acquires or reacquires such assets.



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



     “Collateral Trust Joinder” means (a) with respect to the provisions of this Agreement relating
to any Additional Secured Debt, an agreement substantially in the form of Exhibit B and (b)
with respect to the provisions of this Agreement relating to the addition of additional Guarantors,
an agreement substantially in the form of Exhibit C.



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



     “Designated Entity” has the meaning assigned to it in the Indenture.



     “Discharge of Parity Lien Obligations” means the occurrence of all of the following:




     (1) termination or expiration of all commitments to extend credit that would constitute
Parity Lien Debt;




     (2) payment in full in cash of the principal of, and interest and premium, if any, on
all Parity Lien Debt (other than any undrawn letters of credit);




     (3) discharge or cash collateralization (at the lower of (A) 105% of the aggregate
undrawn amount and (B) the percentage of the aggregate undrawn amount



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required for release
of liens under the terms of the applicable Parity Lien Document) of all outstanding letters
of credit constituting Parity Lien Debt; and




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



     “Equally and Ratably” means, in reference to sharing of Liens on the Collateral or proceeds of
such Collateral as between holders of Secured Obligations within the same Class after payment of
fees, costs and expenses of the Collateral Trustee in accordance with Section 3.4 and the Parity
Lien Representatives in accordance with the applicable Secured Debt Document, that such Liens or
proceeds:




     (1) will be allocated and distributed in accordance with Section 3.4 first to the
Secured Debt Representative for each outstanding Series of Secured Debt within that Class,
for the account of the holders of such Series of Secured Debt, ratably in proportion to the
principal of, and interest and premium (if any) and reimbursement obligations (contingent or
otherwise) with respect to letters of credit, if any, outstanding (whether or not drawings
have been made under such letters of credit) forming part of, and Hedging Obligations to the
extent constituting Secured Debt pursuant to the terms of, each outstanding Series of
Secured Debt within that Class when the allocation or distribution is made; and thereafter;




     (2) will be allocated and distributed in accordance with Section 3.4 (if any remain
after payment in full of all of the principal of, and interest and premium (if any) and
reimbursement obligations (contingent or otherwise) with respect to letters of credit, if
any, outstanding (whether or not drawings have been made on such letters of credit) forming
part of, and Hedging Obligations to the extent constituting Secured Debt pursuant to the
terms of, each outstanding Series of Secured Debt within that Class) to the Secured Debt
Representative for each outstanding Series of Secured Debt within that Class, for the
account of the holders of any remaining Secured Obligations within that Class, ratably in
proportion to the aggregate unpaid amount of such remaining Secured Obligations within that
Class due and demanded (with written notice to the applicable Secured Debt Representative
and the Collateral Trustee) prior to the date such distribution is made.



     “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, the opinions and pronouncements of the Public Company Accounting Oversight Board 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 October 23, 2006.



     “Guarantee” means, as to any Person, a guarantee other than by endorsement of negotiable
instruments for collection in the ordinary course of business, direct or indirect, in any



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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 any Person that at any time provides a Guarantee of any Secured
Obligations.



     “Hedging Obligations” means, with respect to any specified Person, the net obligations of such
Person under:




     (1) interest rate swap agreements, interest rate cap agreements, interest rate collar
agreements and other agreements or arrangements with respect to interest rate; and




     (2) foreign exchange contracts, currency swap agreements and other similar agreements
or arrangements with respect to foreign currency exchange rates.



     “Indebtedness” means, with respect to any specified Person, any indebtedness of such Person,
whether or not contingent:




	 	(1)	 	in respect of borrowed money;
	 
	 	(2)	 	evidenced by bonds, notes, debentures or similar instruments or letters of
credit (or reimbursement agreements in respect thereof);
	 
	 	(3)	 	in respect of banker’s acceptances;
	 
	 	(4)	 	in respect of Capital Lease Obligations and Attributable Debt;
	 
	 	(5)	 	in respect of the balance deferred and unpaid of the purchase price of any
property or services, except any such balance that constitutes an accrued expense or
trade payable and excluding any earnout obligation until such obligation becomes a
liability on the balance sheet of such Person in accordance with GAAP;
	 
	 	(6)	 	representing Hedging Obligations;
	 
	 	(7)	 	representing Disqualified Stock (as defined in the Indenture); or
	 
	 	(8)	 	in the case of a Subsidiary of such Person, representing Preferred Stock (as
defined in the Indenture);





     In addition, the term “Indebtedness” includes all Indebtedness of others secured by a Lien on
any asset of the specified Person (whether or not such Indebtedness is assumed by the specified
Person), and, to the extent not otherwise included, the Guarantee by the specified Person of any
Indebtedness of any other Person.



     “Indemnified Liabilities” means any and all liabilities, obligations, losses, damages,
penalties, actions, judgments, suits, costs, taxes, expenses or disbursements of any kind or nature



5









 







whatsoever with respect to the execution, delivery, performance, administration or enforcement of
this Agreement or any of the other Security Documents, including any of the foregoing relating to
the use of proceeds of any Secured Debt or the violation of, noncompliance with or liability under,
any law applicable to or enforceable against the Company, 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 7.11(a).



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



     “Insolvency or Liquidation Proceeding” means:




     (1) any case commenced by or against the Company or any Guarantor under Title 11, U.S.
Code, or any similar federal or state law for the relief of debtors, any other proceeding
for the reorganization, recapitalization or adjustment or marshalling of the assets or
liabilities of the Company or any Guarantor, any receivership or assignment for the benefit
of creditors relating to the Company or any Guarantor or any similar case or proceeding
relative to the Company or any Guarantor or its creditors, as such, in each case whether or
not voluntary;




     (2) any liquidation, dissolution, marshalling of assets or liabilities or other winding
up of or relating to the Company or any Guarantor, in each case whether or not voluntary and
whether or not involving bankruptcy or insolvency; or




     (3) any other proceeding of any type or nature in which substantially all claims of
creditors of the Company or any Guarantor are determined and any payment or distribution is
or may be made on account of such claims.



     “Intercreditor Agreement” means an intercreditor agreement entered into in connection with
Permitted Priority Debt, if any, in substantially the form attached as Exhibit D, as amended,
supplemented, restated, modified, renewed or replaced (whether upon or after termination or
otherwise), in whole or in part from time to time, or any other successor agreement and whether
among the same or any other parties.



     “Intercreditor Agreement Joinder” means an agreement substantially in the form of Exhibit
A to the Intercreditor Agreement.



     “Junior Lien” means a Lien granted by a Security Document to the Collateral Trustee, at any
time, upon any Collateral to secure Junior Lien Obligations.



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     “Junior Lien Debt” means:



     (1) any Indebtedness (including letters of credit and reimbursement obligations with respect
thereto) of the Company or any Guarantor that is secured on a subordinated basis to the Parity Lien
Debt by a Junior Lien that was permitted to be incurred and so secured under each applicable
Secured Debt Document;



     provided, that:




     (a) on or before the date on which such Indebtedness is incurred by the Company
or such Guarantor, such Indebtedness is designated by the Company as “Junior Lien
Debt” for the purposes of the Secured Debt Documents in an Additional Secured Debt
Designation executed and delivered in accordance with Section 3.8(b); provided, that
no Series of Secured Debt may be designated as both Junior Lien Debt and Parity Lien
Debt;




     (b) the Junior Lien Representative for such Indebtedness executes and delivers
a Collateral Trust Joinder and, if applicable, an Intercreditor Joinder Agreement,
in each case, in accordance with Section 3.8(a);




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




     (d) all other requirements set forth in Section 3.8 hereof have been complied
with (and the satisfaction of such requirements will be conclusively established if
the Company delivers to the Collateral Trustee an Officers’ Certificate stating that
such requirements have been satisfied and that such Indebtedness is “Junior Lien
Debt”); and



     (2) Hedging Obligations of the Company or any Guarantor incurred to hedge or manage interest
rate risk with respect to Junior Lien Debt; provided that, pursuant to the terms of the Junior Lien
Documents, such Hedging Obligations are secured by a Junior Lien on all of the assets and
properties that secure the Indebtedness in respect of which such Hedging Obligations are incurred.



     “Junior Lien Documents” means, collectively, any indenture, credit agreement or other
agreement governing a Series of Junior Lien Debt and the Security Documents (other than any
Security Documents that do not create or perfect Liens securing Junior Lien Obligations).



     “Junior Lien Obligations” means Junior Lien Debt and all other Obligations in respect thereof.



     “Junior Lien Representative” means, in the case of any future Series of Junior Lien Debt, the
trustee, agent or representative of the holders of such Series of Junior Lien Debt who (A) is
appointed as a Junior Lien Representative (for purposes related to the administration of the
Security Documents) pursuant to the indenture, credit agreement or other agreement governing such
Series of Junior Lien Debt, together with its successors in such capacity, and (B) that has
executed a Collateral Trust Joinder.



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     “Junior Trust Estate” has the meaning set forth in Section 2.2.



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



     “Lien Sharing and Priority Confirmation” means:




     (1) as to any Series of Parity Lien Debt, the written agreement of the holders of such
Series of Parity Lien Debt, as set forth in the applicable Secured Debt Document:




     (a) for the enforceable benefit of all holders of each existing and future
Series of Parity Lien Debt and each existing and future Parity Lien Representative,
that all Parity Lien Obligations will be and are secured Equally and Ratably by all
Parity Liens at any time granted by the Company or any Guarantor to secure any
Obligations in respect of such Series of Parity Lien Debt, and that all such Parity
Liens will be enforceable by the Collateral Trustee for the benefit of all holders
of Parity Lien Obligations Equally and Ratably;




     (b) for the enforceable benefit of all holders of each existing and future
Series of Parity Lien Debt and Series of Junior Lien Debt, and each existing and
future Parity Lien Representative and Junior Lien Representative, that the holders
of Obligations in respect of such Series of Parity Lien Debt are bound by the
provisions of this Agreement, including the provisions relating to the ranking of
Parity Liens and the order of application of proceeds from enforcement of Parity
Liens;




     (c) for the enforceable benefit of all holders of each existing and future
Series of Permitted Priority Debt and Series of Parity Lien Debt and each existing
and future Permitted Priority Lien Representative and Parity Lien Representative,
that the holders of Obligations in respect of such Series of Parity Lien Debt are
bound by the provisions of the Intercreditor Agreement (whether then in existence or
thereafter entered into), including the provisions relating to the ranking of Liens
and the order of application of proceeds from the enforcement of Liens as set forth
therein; and




     (d) consenting to and directing the Collateral Trustee to perform its
obligations under this Agreement and the other Security Documents (including the
Intercreditor Agreement).




     (2) as to any Series of Junior Lien Debt, the written agreement of the holders of such
Series of Junior Lien Debt, as set forth in the applicable Secured Debt Document:




     (a) for the enforceable benefit of all holders of each existing and future
Series of Junior Lien Debt and Series of Parity Lien Debt and each existing



8









 







and future Junior Lien Representative and Parity Lien Representative, that all
Junior Lien Obligations will be and are secured Equally and Ratably by all Junior
Liens at any time granted by the Company or any Guarantor to secure any Obligations
in respect of such Series of Junior Lien Debt, and that all such Junior Liens will
be enforceable by the Collateral Trustee for the benefit of all holders of Junior
Lien Obligations Equally and Ratably;




     (b) for the enforceable benefit of all holders of each existing and future
Series of Parity Lien Debt and Series of Junior Lien Debt and each existing and
future Parity Lien Representative and Junior Lien Representative, that the holders
of Obligations in respect of such Series of Junior Lien Debt are bound by the
provisions of this Agreement, including the provisions relating to the ranking of
Junior Liens and the order of application of proceeds from the enforcement of Junior
Liens;




     (c) for the enforceable benefit of all holders of each existing and future
Series of Junior Lien Debt, Series of Parity Lien Debt and Series of Permitted
Priority Debt and each existing and future Junior Lien Representative, Parity Lien
Representative and Permitted Priority Lien Representative, that the holders of
Obligations in respect of such Series of Junior Lien Debt are bound by the
provisions of the Intercreditor Agreement (whether then in existence or thereafter
entered into), including the provisions relating to the ranking of Liens and the
order of application of proceeds from the enforcement of Liens as set forth therein;
and




     (d) consenting to and directing the Collateral Trustee to perform its
obligations under this Agreement and the other Security Documents (including the
Intercreditor Agreement).



     “Moody’s” means Moody’s Investors Service, Inc., a subsidiary of Moody’s Corporation, and any
successor to its rating agency business.



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



     “Note Guarantee” has the meaning assigned to it in the Indenture.



     “Obligations” means any principal (including reimbursement obligations with respect to letters
of credit whether drawn or not drawn), interest (including all interest accrued thereon after the
commencement of any Insolvency or Liquidation Proceeding at the rate, including any applicable
post-default rate, specified in the Secured Debt Documents, even if such interest is not
enforceable, allowable or allowed as a claim in such proceeding), premium (if any), penalties,
fees, indemnifications, reimbursements, damages and other liabilities payable under the
documentation governing any Indebtedness.



     “Officers’ Certificate” means a certificate with respect to compliance with a condition or
covenant provided for in this Agreement, signed on behalf of the Company by two officers of the



9









 







Company, one of whom must be the principal executive officer, the principal financial officer, the
treasurer or the principal accounting officer of the Company, 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.



     “Ordinary Course Activity” means any ordinary course activity with respect to the Collateral
that, pursuant to Section 10.09 of the Indenture, the Company or any Guarantor may conduct without
any release or consent by, or the delivery of any document or other instrument to, the Collateral
Trustee or the Trustee.



     “Parity Lien” means a Lien granted by a Security Document to the Collateral Trustee, at any
time, upon any Collateral to secure Parity Lien Obligations.



     “Parity Lien Debt” means:




     (1) the Notes and the Note Guarantee of each Guarantor;




     (2) Any Indebtedness (including letters of credit and reimbursement obligations with
respect thereto) of the Company or any Guarantor that is secured Equally and Ratably with
the Notes by a Parity Lien that was permitted to be incurred and so secured under each
applicable Secured Debt Document; provided, in the case of Indebtedness referred to in this
clause (2), that:




     (a) on or before the date on which such Indebtedness is incurred by the Company
or such Guarantor, such Indebtedness is designated by the Company as “Parity Lien
Debt” for the purposes of the Secured Debt Documents in an Additional Secured Debt
Designation executed and delivered in accordance with Section 3.8(a); provided, that
no Series of Secured Debt may be designated as both Parity Lien Debt and Junior Lien
Debt;




     (b) the Parity Lien Representative for such Indebtedness executes and delivers
a Collateral Trust Joinder and, if applicable an Intercreditor Joinder Agreement, in
each case in accordance with Section 3.8(a);



10









 






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




     (d) all other requirements set forth in Section 3.8 hereof have been complied
with (and the satisfaction of such requirements will be conclusively established if
the Company delivers to the Collateral Trustee an Officers’ Certificate stating that
such requirements have been satisfied and that such notes or such Indebtedness is
“Parity Lien Debt”); and




     (3) Hedging Obligations of the Company or any Guarantor incurred to hedge or manage
interest rate risk with respect to Parity Lien Debt; provided, that pursuant to the terms of
the Parity Lien Documents, such Hedging Obligations are secured by a Parity Lien on all of
the assets and properties that secure the Indebtedness in respect of which such Hedging
Obligations are incurred.



     “Parity Lien Documents” means the Indenture and any additional indenture, credit agreement or
other agreement governing a Series of Parity Lien Debt and the Security Documents (other than any
Security Documents that do not create or perfect Liens securing Parity Lien Obligations).



     “Parity Lien Obligations” means the Parity Lien Debt and all other Obligations in respect of
Parity Lien Debt.



     “Parity Lien Representative” means:




     (a) the Trustee, in the case of the Notes; or




     (b) in the case of any other Series of Parity Lien Debt, the trustee, agent or
representative of the holders of such Series of Parity Lien Debt who (A) is appointed as a
Parity Lien Representative (for purposes related to the administration of the Security
Documents) pursuant to the indenture, credit agreement or other agreement governing such
Series of Parity Lien Debt, together with its successors in such capacity, and (B) that has
executed a Collateral Trust Joinder.



     “Permitted Prior Liens” has the meaning assigned to it in the Indenture.



     “Permitted Priority Debt” means (1) Indebtedness (including letters of credit and
reimbursement obligations with respect thereto) incurred by the Company or any of the Guarantors
that is secured by Permitted Priority Liens that were permitted to be incurred and so secured under
each applicable Secured Debt Document; provided, that:




     (a) on or before the date on which such Indebtedness is incurred by the Company or the
applicable Guarantor, such Indebtedness is designated by the Company, in an Officers’
Certificate delivered to each Parity Lien Representative, each Junior Lien Representative
and the Collateral Trustee, as “Permitted Priority Debt” for the purposes of the Secured
Debt Documents; provided that no Series of Secured Debt may be designated as both Permitted
Priority Debt and Parity Lien Debt or Junior Lien Debt; and



11









 






     (b) the Permitted Priority Lien Representative, the Collateral Trustee, the Company and
each applicable Guarantor, has duly executed and delivered an Intercreditor Agreement; and




     (2) Hedging Obligations of the Company or any Guarantor incurred to hedge or manage
interest rate risk with respect to Permitted Priority Debt; provided that, pursuant to the
terms of the documents governing the Permitted Priority Debt Obligations, such Hedging
Obligations are secured by a Permitted Priority Lien on all of the assets and properties
that secure the Indebtedness in respect of which such Hedging Obligations are incurred.



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



     “Permitted Priority Lien Representative” means, in the case of any future Permitted Priority
Debt, the agent of the holders of such Permitted Priority Debt who is appointed as an agent for
purposes related to the administration of the security documents related to the Permitted Priority
Debt pursuant to the credit agreement or other agreement governing such Permitted Priority Debt,
together with its successors in such capacity.



     “Permitted Priority Liens” means Liens granted to the collateral agent or other Permitted
Priority Lien Representative under any Permitted Priority Debt facility, at any time, upon any
Collateral to secure Permitted Priority Debt Obligations.



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



     “Plan” has the meaning assigned to it in the Indenture.



     “Required Junior Lien Debtholders” means, at any time, the holders of a majority in aggregate
principal amount of all Junior Lien Debt (including outstanding letters of credit whether or not
then available or drawn) then outstanding and the aggregate unfunded commitments to extend credit
which, when funded, would constitute Junior Lien Debt, calculated in accordance with the provisions
of Section 7.2. For purposes of this definition, Junior Lien Debt registered in the name of, or
beneficially owned by, the Company or any Affiliate of the Company will be deemed not to be
outstanding.



     “Required Parity Lien Debtholders” means, at any time, the holders of a majority in aggregate
principal amount of all Parity Lien Debt (including outstanding letters of credit whether or not
then available or drawn) then outstanding and the aggregate unfunded commitments to extend credit
which, when funded, would constitute Parity Lien Debt, calculated in accordance with the provisions
of Section 7.2. For purposes of this definition, Parity Lien Debt registered in the name of, or
beneficially owned by, the Company or any Affiliate of the Company will be deemed not to be
outstanding.



     “S&P” means Standard & Poor’s Ratings Services, a division of The McGraw Hill Companies, Inc.,
and any successor to its rating agency business.



12









 





     “Secured Debt” means Parity Lien Debt and Junior Lien Debt.



     “Secured Debt Default” means any event or condition which, under the terms of any credit
agreement, indenture or other agreement governing any Series of Secured Debt causes, or permits
holders of Secured Debt outstanding thereunder (with or without the giving of notice or lapse of
time, or both, and whether or not notice has been given or time has lapsed) to cause, the Secured
Debt outstanding thereunder to become immediately due and payable prior to the Stated Maturity
thereof.



     “Secured Debt Documents” means the Parity Lien Documents and the Junior Lien Documents.



     “Secured Debt Representative” means each Parity Lien Representative and each Junior Lien
Representative.



     “Secured Obligations” means Parity Lien Obligations and Junior Lien Obligations.



     “Secured Parties” means the holders of Secured Obligations and the Secured Debt
Representatives.



     “Security Documents” means this Agreement, each Collateral Trust Joinder, the Intercreditor
Agreement, each Intercreditor Joinder Agreement and all security agreements, pledge agreements,
collateral assignments, control agreements or other grants or transfers for security executed and
delivered by the Company or any Guarantor creating or perfecting (or purporting to create or
perfect) a Lien upon Collateral in favor of the Collateral Trustee, for the benefit of any Secured
Party, in each case, as amended, supplemented, restated, modified, renewed or replaced, in whole or
in part, from time to time, in accordance with its terms and Section 7.2.



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



     “Series of Junior Lien Debt” means, severally, each issue or series of Junior Lien Debt for
which a single transfer register is maintained (provided that any Hedging Obligations constituting
Junior Lien Debt shall be deemed part of the Series of Junior Lien Debt to which they relate).



     “Series of Parity Lien Debt” means, severally, the Notes and any additional notes or exchange
notes or other Indebtedness that constitutes Parity Lien Debt (provided that any Hedging
Obligations constituting Parity Lien Debt shall be deemed part of the Series of Parity Lien Debt to
which they relate).



     “Series of Permitted Priority Debt” means, severally, each issue or series of Permitted
Priority Debt for which a single transfer register is maintained (provided that any Hedging
Obligations constituting Permitted Priority Debt shall be deemed part of the Series of Permitted
Priority Debt to which they relate).



     “Series of Secured Debt” means each Series of Parity Lien Debt and each Series of Junior Lien
Debt.



13









 





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



     “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 (as defined in the Indenture) 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); provided, however, that for avoidance of doubt, a Designated Entity shall not be
deemed to be a Subsidiary of the Parent (as defined in the Indenture), the Company or any of
its Restricted Subsidiaries (as defined in the Indenture) so long as the Parent and its
Restricted Subsidiaries do not own Voting Stock having the power (without regard to the
occurrence of any contingency) to elect more than 50% of the directors, managers or trustees
of such Designated Entity or become the sole general partner or the managing general partner
of such Designated Entity.



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



     “Trust Estates” has the meaning set forth in Section 2.2.



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



     SECTION 1.2 Rules of Interpretation.



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


14









 







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 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 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 Indenture and (2) approved by an Act of the Required Debtholders in a
writing delivered to the applicable Parity Lien Representatives and the Collateral Trustee.
Notwithstanding the foregoing, whenever any term used in this Agreement is defined or otherwise
incorporated by reference to the 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 Indenture notwithstanding the termination or
expiration of the Indenture or redemption of all Obligations evidenced thereby.




          (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 ESTATES




     SECTION 2.1 Declaration of Senior Trust.



     To secure the payment of the Parity Lien Obligations and in consideration of the premises and
mutual agreements set forth in this Agreement, the Company and each of the Guarantors 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 Parity Lien Representatives and
holders of Parity Lien Obligations, all of such Company’s or Guarantor’s
right, title and interest granted to the Collateral Trustee in, to and under all Collateral
under any Security Document for the benefit of the Parity Lien Representatives and holders of
Parity Lien



15









 







Obligations, 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 “Senior Trust Estate”).



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



     Notwithstanding the foregoing, if at any time:




     (1) all Liens securing the Parity Lien Obligations have been released as provided in
Section 4.1;




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




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




     (4) the Company delivers to the Collateral Trustee an Officers’ Certificate stating
that all Parity Liens of the Collateral Trustee have been released in compliance with all
applicable provisions of the Parity Lien Documents and that the Company and the Guarantors
are not required by any Parity Lien Document to grant any Parity Lien upon any property, and




     (5) each Parity Lien Representative delivers to the Collateral Trustee an officers’
certificate stating that all Parity Liens of the Collateral Trustee may be released in
compliance with all applicable provisions of the Parity Lien Documents and that the Company
and the Guarantors are not required by the Parity Lien Document as to which such Person is
the Parity Secured Representative to grant any Parity Lien upon any property, (and each
Parity Lien Representative hereby agrees to deliver such certificate to the Collateral
Trustee when the Liens securing the applicable Series of Parity Lien Debt are to be released
in accordance with the applicable Parity Lien Documents),


then the Senior Trust Estate arising hereunder will terminate, except that all provisions set forth
in Sections 7.10 and 7.11 that are enforceable by the Collateral Trustee or any of its co-trustees
or agents (whether in an individual or representative capacity) will remain enforceable in
accordance with their terms.




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



16









 






     SECTION 2.2 Declaration of Junior Trust.



     To secure the payment of the Junior Lien Obligations and in consideration of the premises and
the mutual agreements set forth herein, the Company and each of the Guarantors 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 Junior Lien Representatives and holders of
Junior Lien Obligations, all of such Company’s or Guarantor’s right, title and interest granted to
the Collateral Trustee in, to and under all Collateral under any Security Document for the benefit
of the Junior Lien Representatives and holders of Junior Lien Obligations, 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 “Junior Trust Estate,” and together
with the Senior Trust Estate, the “Trust Estates”).



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



     Notwithstanding the foregoing, if at any time:




     (1) all Liens securing the Junior Lien Obligations have been released as provided in
Section 4.1;




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




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




     (4) the Company delivers to the Collateral Trustee an Officers’ Certificate stating
that all Junior Liens of the Collateral Trustee may be released in compliance with all
applicable provisions of the Junior Lien Documents and that the Company and the Guarantors
are not required by any Junior Lien Document to grant any Junior Lien upon any property, and




     (5) each Junior Lien Representative delivers to the Collateral Trustee an officers’
certificate stating that all Junior Liens of the Collateral Trustee have been released in
compliance with all applicable provisions of the Junior Lien Documents and that the Company
and the Guarantors are not required by the Junior Lien Document as to which such Person is
the Junior Lien Representative to grant any Junior Lien upon any property (and each Junior
Lien Representative hereby agrees to deliver such certificate to the Collateral Trustee when
the Liens securing the applicable Series of Junior Lien Debt are to be released in
accordance with the applicable Junior Lien Documents),



17









 




then the Junior Trust Estate arising hereunder will terminate, except that all provisions set forth
in Sections 7.10 and 7.11 that are enforceable by the Collateral Trustee or any of its co-trustees
or agents (whether in an individual or representative capacity) will remain enforceable in
accordance with their terms.




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




     SECTION 2.3 Priority of Liens. Notwithstanding (1) anything else contained herein or in any other Security Document, (2)
the time of incurrence of any Series of Parity Lien Debt; (3) the order or method of attachment or
perfection of any Liens securing any Series of Parity Lien Debt; (4) the time or order of filing or
recording of financing statements or other documents filed or recorded to perfect any Parity Lien;
(5) the time of taking possession or control over any Collateral; (6) that any Parity Lien may
not have been perfected or may be or have become subordinated, by equitable subordination or
otherwise, to any other Lien; or (7) the rules for determining priority under any law governing
relative priorities of Liens, it is the intent of the parties that:




          (a) this Agreement and the other Security Documents create two separate and distinct
Trust Estates and Liens: the Senior Trust Estate and Parity Lien securing the payment and
performance of the Parity Lien Obligations and the Junior Trust Estate and Junior Lien
securing the payment and performance of the Junior Lien Obligations; and




          (b) the Liens securing the Junior Lien Obligations are subject and subordinate to the
Liens securing the Parity Lien Obligations.




     SECTION 2.4 Restrictions on Enforcement of Junior Liens.



          (a) Until the Discharge of Parity Lien Obligations, the holders of Parity Lien Obligations
will have, subject to the exceptions set forth below in clauses (1) through (4), the exclusive
right to authorize and direct the Collateral Trustee with respect to the Security Documents and the
Collateral (including, without limitation, the exclusive right to authorize or direct the
Collateral Trustee to enforce, collect or realize on any Collateral or exercise any other right or
remedy with respect to the Collateral) and neither the provisions of the Security Documents
relating thereto (other than in accordance with this Agreement and the Interecreditor Agreement)
nor any Junior Lien Representative or holder of Junior Lien Obligations, if any, may authorize or
direct the Collateral Trustee with respect to such matters. Notwithstanding the foregoing, the
holders of Junior Lien Obligations may direct the Collateral Trustee with respect to such matters:





          (1) without any condition or restriction whatsoever, at any time after the Discharge of
Parity Lien Obligations;




          (2) as necessary to redeem any Collateral in a creditor’s redemption permitted by law
or to deliver any notice or demand necessary to enforce (subject to the



18









 







prior Discharge of
Parity Lien Obligations) any right to claim, take or receive proceeds of Collateral
remaining after the Discharge of Parity Lien Obligations;




          (3) as necessary to perfect or establish the priority (subject to Parity Liens and
Permitted Priority Liens) of the Junior Liens upon any Collateral, provided that, unless
otherwise agreed to by the Collateral Trustee in the Security Documents, the holders of
Junior Lien Obligations may not require the Collateral Trustee to take any action to perfect
any Collateral through possession or control (other than the Collateral Trustee agreeing
pursuant to Section 7.4 that the Collateral Trustee as agent for the benefit of the Parity
Lien Representatives and holders of the Parity Lien Obligations will act as bailee for the
Collateral Trustee for the benefit of the Junior Lien Representatives and holders of the
Junior Lien Obligations); or




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



          (b) Both before and during an Insolvency or Liquidation Proceeding, until the Discharge of
Parity Lien Obligations, none of the holders of Junior Lien Obligations, the Collateral Trustee
(unless acting pursuant to an Act of Required Debtholders) or any Junior Lien Representative will:





          (1) request judicial relief, in an Insolvency or Liquidation Proceeding or in any other
court, that would hinder, delay, limit or prohibit the lawful exercise or enforcement of any
right or remedy otherwise available to the holders of Parity Lien Obligations in respect of
the Parity Liens or that would limit, invalidate, avoid or set aside any Parity Lien or
subordinate the Parity Liens to the Junior Liens or grant the Junior Liens equal ranking to
the Parity Liens;




          (2) oppose or otherwise contest any motion for (A) relief from the automatic stay or
(B) any injunction against foreclosure or (C) any enforcement of Parity Liens, in each case,
made by any holder of Parity Lien Obligations or any Parity Lien Representative in any
Insolvency or Liquidation Proceeding;




          (3) oppose or otherwise contest any lawful exercise by any holder of Parity Lien
Obligations or any Parity Lien Representative of the right to credit bid Parity Lien
Obligations at any sale of Collateral in foreclosure of Parity Liens;




          (4) oppose or otherwise contest any other request for judicial relief made in any court
by any holder of Parity Lien Obligations or any Parity Lien Representative relating to the
lawful enforcement of any Parity Lien; or




          (5) challenge the validity, enforceability, perfection or priority of the Parity Liens
with respect to the Collateral.


Notwithstanding the foregoing, both before and during an Insolvency or Liquidation Proceeding, the
holders of Junior Lien Obligations or Junior Lien Representatives may take any actions and
exercise any and all rights that would be available to a holder of unsecured claims, including,
without limitation, the commencement of an Insolvency or Liquidation Proceeding against the


19









 






Company
or any Guarantor in accordance with applicable law; provided, that no holder of Junior Lien
Obligations or Junior Lien Representatives will be permitted to take any of the actions prohibited
by clauses (1) through (5) of this Section 2.4(b) or oppose or contest any order that it has agreed
not to oppose or contest under Section 2.8.




          (c) At any time prior to the Discharge of Parity Lien Obligations, and after (1) the
commencement of any Insolvency or Liquidation Proceeding in respect of the Company or any Guarantor
or (2) the Collateral Trustee and each Junior Lien Representative have received written notice from
any Parity Lien Representative at the direction of an Act of Required Debtholders stating that (A)
any Series of Parity Lien Debt has become due and payable in full (whether at maturity, upon
acceleration or otherwise) or (B) the holders of Parity Liens securing one or more Series of Parity
Lien Debt have become entitled under any Parity Lien Document to and desire to enforce any or all
of the Parity Liens by reason of a default under such Parity Lien Documents, no payment of money
(or the equivalent of money) shall be made from the proceeds of Collateral by the Company or any
Guarantor to the Collateral Trustee (other than distributions to the Collateral Trustee for the
benefit of the holders of Parity Lien Obligations), any Junior Lien Representative or any holder of
Junior Lien Obligations (including, without limitation, payments and prepayments made for
application to Junior Lien Obligations).




          (d) All proceeds of Collateral received by the Collateral Trustee, any Junior Lien
Representative or any holder of Junior Lien Obligations in violation of Section 2.4(c) will be held
by such Person in trust for the account of the holders of Parity Lien Obligations and remitted to
any Parity Lien Representative upon demand by such Parity Lien Representative. The Junior Liens
will remain attached to and, subject to Section 2.3, enforceable against all proceeds so held or
remitted. All proceeds of Collateral received by the Collateral Trustee, any Junior Lien
Representative or any holder of Junior Lien Obligations not in violation of Section 2.4(c) will be
received by such Person free from the Parity Liens.




     SECTION 2.5 Waiver of Right of Marshalling.



          (a) Prior to the Discharge of Parity Lien Obligations, holders of Junior Lien Obligations,
each Junior Lien Representative and the Collateral Trustee may not assert or enforce any right of
marshalling accorded to a junior lienholder, as against the holders of Parity Lien Obligations and
the Parity Lien Representatives (in their capacity as senior or priority lienholders) with respect
to the Collateral.




          (b) Following the Discharge of Parity Lien Obligations, the holders of Junior Lien Obligations
and any Junior Lien Representative may assert their right under the UCC or otherwise to any
proceeds remaining following a sale or other disposition of Collateral by, or on behalf of, the
holders of Parity Lien Obligations.




     SECTION 2.6 Discretion in Enforcement of Parity Liens.



          (a) In exercising rights and remedies with respect to the Collateral, the Parity Lien
Representatives may enforce (or refrain from enforcing) or instruct the Collateral Trustee to
enforce (or refrain from enforcing) the provisions of the Parity Lien Documents and exercise
(or refrain from exercising) or instruct the Collateral Trustee to exercise (or refrain from
exercising)




20









 







remedies thereunder or any such rights and remedies, all in such order and in such
manner as they may determine in the exercise of their sole and exclusive discretion, including:





          (1) the exercise or forbearance from exercise of all rights and remedies in respect of
the Collateral and/or the Parity Lien Obligations;




          (2) the enforcement or forbearance from enforcement of any Parity Lien in respect of
the Collateral;




          (3) the exercise or forbearance from exercise of rights and powers of a holder of
shares of stock included in the Senior Trust Estate to the extent provided in the Security
Documents;




          (4) the acceptance of the Collateral in full or partial satisfaction of the Parity Lien
Obligations; and




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



     SECTION 2.7 Discretion in Enforcement of Parity Lien Obligations. Without in any way limiting the generality of Section 2.6, the holders of Parity Lien
Obligations and the Parity Lien Representatives may, or may cause the Collateral Trustee to, at any
time and from time to time, without the consent of the Collateral Trustee, holders of Junior Lien
Obligations or the Junior Lien Representatives, without notice to holders of Junior Lien
Obligations or the Junior Lien Representatives, without incurring responsibility to the Collateral
Trustee, holders of Junior Lien Obligations or the Junior Lien Representatives and without
impairing or releasing the subordination provided in this Agreement or the obligations hereunder of
the Collateral Trustee, holders of Junior Lien Obligations or the Junior Lien Representatives, do
any one or more of the following:




          (1) change the manner, place or terms of payment or extend the time of payment of, or
renew or alter, the Parity Lien Obligations, or otherwise amend or supplement in any manner
the Parity Lien Obligations, or any instrument evidencing the Parity Lien Obligations or any
agreement under which the Parity Lien Obligations are outstanding;




          (2) release any Person or entity liable in any manner for the collection of the Parity
Lien Obligations;




          (3) release the Parity Lien on any Collateral; and




          (4) exercise or refrain from exercising any rights against any Guarantor.



     The holders of Parity Lien Obligations, themselves or through their Parity Lien
Representatives, shall notify the Collateral Trustee in writing as to actions they take pursuant to
the foregoing clauses (2), (3) or (4).



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     SECTION 2.8 Insolvency or Liquidation Proceedings.



          (a) If in any Insolvency or Liquidation Proceeding and prior to the Discharge of Parity Lien
Obligations, the holders of Parity Lien Obligations by an Act of Required Debtholders consent to
any order:





          (1) for use of cash collateral;




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




          (3) granting any relief on account of Parity Lien Obligations as adequate protection
(or its equivalent) for the benefit of the holders of Parity Lien Obligations in the
Collateral; or




          (4) relating to a sale of assets of the Company or any Guarantor that provides, to the
extent the Collateral sold is to be free and clear of Liens, that all Parity Liens and
Junior Liens will attach to the proceeds of the sale;


then, the holders of Junior Lien Obligations and the Junior Lien Representatives will not oppose or
otherwise contest the entry of such order, provided, that the holders of Junior Lien
Obligations or a Junior Lien Representative may request the grant to the Collateral Trustee, for
the benefit of the holders of Junior Lien Obligations and the Junior Lien Representatives, of a
junior Lien upon any property on which a Lien is (or is to be) granted under such order to secure
the Parity Lien Obligations, co-extensive in all respects with, but subordinated (as set forth in
Section 2.3) to, such Lien and all Parity Liens on such property. The holders of Parity Lien
Obligations and the Parity Lien Representatives agree not to oppose or otherwise contest in any
respect any request made by the Junior Lien Representatives for a junior lien pursuant to the
proviso to the preceding sentence.




          Notwithstanding the foregoing, both before and during an Insolvency or Liquidation Proceeding,
the holders of Junior Lien Obligations and the Junior Lien Representatives may take any actions and
exercise any and all rights that would be available to a holder of unsecured claims, including,
without limitation, the commencement of Insolvency or Liquidation Proceedings against the Company
or any Guarantor in accordance with applicable law; provided, that, no holder of Junior Lien
Obligations or Junior Lien Representative will be permitted to take any of the actions prohibited
under Section 2.4(b) or oppose or contest any order that it has agreed not to oppose or contest
under clauses (1) through (4) of the preceding paragraph.




          (b) Neither the holders of Junior Lien Obligations nor any Junior Lien Representative will
file or prosecute in any Insolvency or Liquidation Proceeding any motion for adequate protection
(or any comparable request for relief) based upon their interest in the Collateral under the Junior
Liens, except that:





          (1) they may freely seek and obtain relief granting a junior Lien co-extensive in all
respects with, but subordinated (as set forth in Section 2.3) to, all Liens



22









 







granted in such
Insolvency or Liquidation Proceeding to, or for the benefit of, the holders of Parity Lien
Obligations; and




          (2) they may freely seek and obtain any relief upon a motion for adequate protection
(or any comparable relief), without any condition or restriction whatsoever, at any time
after the Discharge of Parity Lien Obligations.



     SECTION 2.9 Collateral Shared Equally and Ratably within Class. The parties to this Agreement agree that the payment and satisfaction of all of the Secured
Obligations within each Class will be secured Equally and Ratably by the Liens established in favor
of the Collateral Trustee for the benefit of the Secured Parties belonging to such Class. It is
understood and agreed that nothing in this Section 2.9 is intended to alter the priorities among
Secured Parties belonging to different Classes as provided in Section 2.3.



     SECTION 2.10 Separate Grants of Security and Separate Classification. Each Parity Lien Representative, for itself and on behalf of the holders of the applicable
Parity Lien Obligations, and each Junior Lien Representative, for itself and on behalf of the
holders of the applicable Junior Lien Obligations, acknowledges and agrees that:




          (a) the grants of Liens pursuant to the Parity Lien Documents and the Junior Lien Documents
constitute separate and distinct grants of Liens; and




          (b) because of, among other things, their differing rights in the Collateral, the Junior Lien
Obligations are fundamentally different from the Parity Lien Obligations and must be separately
classified in any plan of reorganization proposed or adopted in an Insolvency or Liquidation
Proceeding.




     To further effectuate the intent of the parties as provided in the immediately preceding
sentence, if it is held that the claims of the holders of Parity Lien Obligations and the holders
of Junior Lien Obligations in respect of the Collateral constitute (in whole or in part) only one
secured claim (rather than separate classes of senior and junior secured claims), then each of the
parties hereto hereby acknowledges and agrees that, subject to Sections 2.3 and 3.4, all
distributions shall be made as if there were separate classes of senior and junior secured claims
against the Company and the Guarantors in respect of the Collateral (with the effect being that, to
the extent that the aggregate value of the Collateral is sufficient (for this purpose ignoring all
claims held by the holders of Junior Lien Obligations), the holders of Parity Lien Obligations
shall be entitled to receive, in addition to amounts distributed to them in respect of principal,
pre-petition interest and other claims, all amounts owing (or that would be owing if there were
such separate classes of senior and junior secured claims) in respect of post-petition interest,
including
any additional interest payable pursuant to the Parity Lien Documents, arising from or related
to a default, which is disallowed as a claim in any Insolvency or Liquidation Proceeding) before
any distribution is made in respect of the claims held by the holders of Junior Lien Obligations
with respect to the Collateral, with the Collateral Trustee, for itself and on behalf of each of
the Junior Lien Representatives and each holder of Junior Lien Obligations, hereby acknowledging
and agreeing to turn over to the Parity Lien Representatives, for the Parity Lien Representatives
and on behalf of the holders of the applicable Parity Lien Obligations, Collateral or proceeds of
Collateral otherwise received or receivable by them to the extent necessary to effectuate the



23









 







intent of this sentence, even if such turnover has the effect of reducing the claim or recovery of
the holders of Junior Lien Obligations.



ARTICLE 3. OBLIGATIONS AND POWERS OF COLLATERAL TRUSTEE




     SECTION 3.1 Undertaking of the Collateral Trustee.



          (a) Subject to, and in accordance with, this Agreement, including without limitation Section
5.3, the Collateral Trustee will, as collateral trustee, for the benefit solely and exclusively of
the present and future Secured Parties:





          (1) 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;




          (2) 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;




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




          (4) 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;




          (5) 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;




          (6) execute and deliver amendments to the Security Documents as from time to time
authorized pursuant to Section 7.1 accompanied by an Officers’ Certificate to the effect
that the amendment was permitted under Section 7.1;




          (7) release any Lien granted to it by any Security Document upon any Collateral if and
as required by Section 4.1; and




          (8) enter into and perform its obligations and protect, exercise and enforce its interest,
rights, powers and remedies under the Intercreditor Agreement, upon the incurrence of any Permitted
Priority Debt by the Company or any Guarantor.



24









 





          (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 the Collateral Trustee.




          (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 Secured Obligations) unless and until it shall have been
directed by written notice of an Act of Required Debtholders and then only in accordance with the
provisions of this Agreement.




     SECTION 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 Required 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 4;




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




          (d) for the subordination of the Junior Trust Estate and the Junior Liens to the Senior Trust
Estate and the Parity Liens; or




          (e) for the subordination of the Liens on the Collateral securing the Secured Obligations to
the Liens on the Collateral securing the Permitted Priority Debt Obligations to the extent required
by the Intercreditor Agreement, or, if requested by the Company and if such request is accompanied
by any Officer’s Certificate stating that such subordination is permitted pursuant to the terms of
the Secured Debt Documents, to any other Permitted Prior Liens.




     In the event of any subordination to be undertaken pursuant to the foregoing clause (e), the
Company will agree to deliver to the Collateral Trustee an Officer’s Certificate to the effect that
such subordination complies with the terms of the Secured Debt Documents and the Security
Documents.



     SECTION 3.3 Enforcement of Liens. If the Collateral Trustee at any time receives written notice stating that any event has
occurred that constitutes a default under any Secured Debt Document entitling the Collateral
Trustee to foreclose upon, collect or otherwise enforce its Liens thereunder, the Collateral
Trustee will promptly deliver written notice thereof to each Secured Debt Representative.
Thereafter, the Collateral Trustee will await direction by an Act of Required Debtholders and will
act, or decline to act, as directed by an Act of Required Debtholders, in the exercise and
enforcement of the Collateral 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 Required



25









 







Debtholders. Unless it has been directed to the contrary by an Act of Required 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 default under any Secured Debt Document as it may deem advisable to preserve and protect the
value of the Collateral.



     SECTION 3.4 Application of Proceeds.



          (a) If any Collateral is sold or otherwise realized upon by the Collateral Trustee in
connection with any foreclosure, collection or other enforcement of Liens granted to the Collateral
Trustee in the Security Documents, the proceeds received by the Collateral Trustee from such
foreclosure, collection or other enforcement will be distributed by the Collateral Trustee in the
following order of application:





     FIRST, to the payment of all amounts payable under this Agreement on account of the
Collateral Trustee’s 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 of the
Collateral Trustee in connection with any Security Document;




     SECOND, to the respective Parity Lien Representatives for application to the payment of
all outstanding Parity Lien Debt and any other Parity Lien Obligations that are then due and
payable in such order as may be provided in the Parity Lien Documents in an amount
sufficient to pay in full in cash all outstanding Parity Lien Debt and all other Parity Lien
Obligations that are then due and payable (including all interest accrued thereon after the
commencement of any Insolvency or Liquidation Proceeding at the rate, including any
applicable post-default rate, specified in the Parity Lien Documents, even if such interest
is not enforceable, allowable or allowed as a claim in such proceeding, and including the
discharge or cash collateralization (at 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 Parity Lien Document) of all outstanding letters of credit
constituting Parity Lien Debt);




     THIRD, to the respective Junior Lien Representatives for application to the payment of
all outstanding Junior Lien Debt and any other Junior Lien Obligations that are then due and
payable in such order as may be provided in the Junior Lien Documents in an amount
sufficient to pay in full in cash all outstanding Junior Lien Debt and all
other Junior Lien Obligations that are then due and payable (including all interest
accrued thereon after the commencement of any Insolvency or Liquidation Proceeding at the
rate, including any applicable post-default rate, specified in the Junior Lien Documents,
even if such interest is not enforceable, allowable or allowed as a claim in such
proceeding, and including the discharge or cash collateralization (at 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 Junior Lien Document) of all
outstanding letters of credit, if any, constituting Junior Lien Debt); and




     FOURTH, any surplus remaining after the payment in full in cash of amounts described in
the preceding clauses will be paid to the Company or the applicable



26









 







Guarantor, as the case
may be, or its successors or assigns, or as a court of competent jurisdiction may direct.




     The foregoing order of application is subject to the seniority of any Permitted
Priority Liens and any Permitted Priority Debt Obligations, as provided in the Intercreditor
Agreement.



          (b) If any Junior Lien Representative or any holder of a Junior Lien Obligation collects or
receives any proceeds in respect of any foreclosure, collection or other enforcement to which it
was not entitled pursuant to the terms of Section 3.4(a), whether after the commencement of an
Insolvency or Liquidation Proceeding or otherwise, such Junior Lien Representative or such holder
of a Junior Lien Obligation, as the case may be, will forthwith deliver the same to the Collateral
Trustee, to be applied in accordance with Section 3.4(a). Until so delivered, such proceeds will
be held by that Junior Lien Representative or that holder of a Junior Lien Obligation, as the case
may be, in trust for the benefit of the holders of the Parity Lien Obligations and other
Obligations secured by a Permitted Priority Lien. This Section 3.4(b) will not apply to payments
received by any holder of Junior Lien Obligations if such payments are not proceeds of, or the
result of a realization upon, Collateral.




          (c) This Section 3.4 is intended for the benefit of, and will be enforceable as a third party
beneficiary by, each present and future holder of Secured Obligations, each present and future
Secured Debt Representative and the Collateral Trustee as holder of Parity Liens and Junior Liens.
The Company shall cause the Secured Debt Representative of each future Series of Secured Debt to
deliver a Collateral Trust Joinder, including a Lien Sharing and Priority Confirmation, as provided
in Section 3.8 at the time of incurrence of such Series of Secured Debt.




          (d) In connection with the application of proceeds pursuant to Section 3.4(a), except as
otherwise directed by an Act of Required Debtholders, the Collateral Trustee may sell any non-cash
proceeds for cash prior to the application of the proceeds thereof.




     SECTION 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 Required Debtholders.




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




     SECTION 3.6 Documents and Communications. The Collateral Trustee will permit each Secured Debt Representative and each holder of
Secured Obligations 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,



27









 







certificates, instructions or communications received by the Collateral Trustee
in its capacity as such.



     SECTION 3.7 For Sole and Exclusive Benefit of Holders of Secured Obligations. The Collateral Trustee will accept, hold, administer and enforce all Liens on the
Collateral at any time transferred or delivered to it and all other interests, rights, powers and
remedies at any time granted to or enforceable by the Collateral Trustee and all other property of
the Trust Estates solely and exclusively for the benefit of the present and future holders of
present and future Secured Obligations, and will distribute all proceeds received by it in
realization thereon or from enforcement thereof solely and exclusively pursuant to the provisions
of Section 3.4.



     SECTION 3.8 Additional Secured Debt.



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





          (1) holds Secured Obligations that are identified as Parity Lien Debt or Junior Lien
Debt in accordance with the procedures set forth in Section 3.8(b);




          (2) signs, through its designated Secured Debt Representative identified pursuant to
Section 3.8(b), a Collateral Trust Joinder and delivers the same to the Collateral Trustee
and each other Secured Debt Representative at the time of incurrence of such Series of
Secured Debt; and




          (3) if Permitted Priority Debt Obligations are then in existence, signs, through its
designated Secured Debt Representative identified pursuant to Section 3.8(b), an
Intercreditor Agreement Joinder and delivers the same to the Collateral Trustee (for further
delivery to the Permitted Priority Lien Representative in accordance with the terms of the
Intercreditor Agreement).



          (b) The Company will be permitted to designate as an additional holder of Secured Obligations
hereunder each Person who is, or who becomes, the registered holder of Junior Lien Debt or the
registered holder of Parity Lien Debt incurred by the Company or any Guarantor after the date of
this Agreement in accordance with the terms of all applicable Secured Debt Documents. The Company
may only effect such designation by delivering to the Collateral Trustee an Additional Secured Debt
Designation stating that:





          (1)
the Company or such Guarantor intends to incur additional Secured Debt (“Additional
Secured Debt”) which will either be (i) Parity Lien Debt permitted by each applicable
Secured Debt Document to be secured by a Parity Lien Equally and Ratably with all previously
existing and future Parity Lien Debt or (ii) Junior Lien Debt permitted by each applicable
Secured Debt Document to be secured with a Junior Lien Equally and Ratably with all
previously existing and future Junior Lien Debt;




          (2) specifying the name and address of the Secured Debt Representative for such series
of Additional Secured Debt for purposes of Section 7.7.



28









 






          (3) the Company and each Guarantor has duly authorized, executed (if applicable) and
recorded (or caused to be recorded) in each appropriate governmental office all relevant
filings and recordations to ensure that the Additional Secured Debt is secured by the
Collateral in accordance with the Security Documents; and




          (4) the Company has caused a copy of the Additional Secured Debt Designation to be
delivered to each then existing Secured Debt Representative.


Although the Company shall be required to deliver a copy of each Additional Secured Debt
Designation and each Collateral Trust Joinder to each then existing Secured Debt Representative,
the failure to so deliver a copy of the Additional Secured Debt Designation and/or Collateral Trust
Joinder to any then existing Secured Debt Representative shall not affect the status of such debt
as Additional Secured Debt if the other requirements of this Section 3.8 are complied with. Each
of the Collateral Trustee and the other then existing Secured Debt Representative shall have the
right to request that the Company shall provide a copy of any legal opinion of counsel (which may
be provided by internal counsel to the Company) provided to the holders of Additional Secured Debt
or their Secured Debt Representatives as to the Additional Secured Debt being secured by a valid
and perfected security interest. Notwithstanding the foregoing, nothing in this Agreement will be
construed to allow the Company or any Guarantor to incur additional Indebtedness unless otherwise
permitted by the terms of all applicable Secured Debt Documents.




     The Security Documents creating or evidencing the Parity Liens and the Junior Liens and
Guarantees for the Parity Lien Obligations and the Junior Lien Obligations shall be in all material
respects the same forms of documents other than with respect to the first lien and the second lien
nature of the Obligations thereunder. So long as the Discharge of Parity Lien Obligations has not
occurred, whether or not any Insolvency or Liquidation Proceeding has been commenced by or against
the Company or any Guarantor, the parties hereto agree that the Company shall not, and shall not
permit any other Guarantor to grant or permit any additional Liens on any asset or property to
secure any Junior Lien Obligation unless it has granted or concurrently grants a Lien on such asset
or property to secure the Parity Lien Obligations.



ARTICLE 4. OBLIGATIONS ENFORCEABLE BY THE COMPANY AND THE OTHER GUARANTORS




     SECTION 4.1 Release of Liens on Collateral.



          (a) The Collateral Trustee’s Liens upon the Collateral will be released:





          (1) in whole, upon (A) payment in full and discharge of all outstanding Secured Debt
and all other Secured Obligations that are outstanding, due and payable at the time all of
the Secured 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 in an account maintained by the Collateral Trustee (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 issued pursuant to any Secured
Debt Documents, provided the Company has delivered an



29









 







Officer’s Certificate to the
Collateral Trustee certifying that the conditions described in this Section 4.1(a)(1) have
been met and that such release of the Collateral does not violate the terms of the Secured
Debt Documents or the Security Documents;




          (2) as to any Collateral that is sold, transferred or otherwise disposed of by the
Company or any Guarantor (including indirectly, by way of a sale or other disposition of
Capital Stock of that Guarantor) to a Person that is not (either before or after such sale,
transfer or disposition) the Company or a Guarantor in a transaction or other circumstance
that is not prohibited by the terms of any applicable 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, provided, that, other than in connection with an Ordinary Course
Activity, the Company has delivered an Officer’s Certificate to the Collateral Trustee
certifying that any such sale, transfer or other disposition does not violate the terms of
the applicable Secured Debt Documents;




          (3) as to a release of less than all or substantially all of the Collateral, if (A)
consent to the release of all Parity Liens (or, at any time after the Discharge of Parity
Lien Obligations, consent to the release of all Junior Liens) on such Collateral has been
given by the requisite percentage or number of holders of each Series of Parity Lien Debt at
the time outstanding as provided for in the Parity Lien Documents (or, at any time after the
Discharge of Parity Lien Obligations, the requisite percentage or number of holders of each
Series of Junior Lien Debt at the time outstanding as provided for in the Junior Lien
Documents) and (B) the Company has delivered an Officer’s Certificate to the Collateral
Trustee certifying that any such necessary consents have been obtained and that such release
of the Collateral does not violate the terms of the Secured Debt Documents or the Security
Documents; and




          (4) as to a release of all or substantially all of the Collateral, if (A) consent to
the release of that Collateral has been given by the requisite percentage or
number of holders of each Series of Secured Debt at the time outstanding as provided
for in the applicable Secured Debt Documents and (B) the Company has delivered an Officers’
Certificate to the Collateral Trustee certifying that any such necessary consents have been
obtained and that any such release does not violate the terms of the Secured Debt Documents
or the Security Documents.



          (b) The Collateral Trustee agrees for the benefit of the Company and the Guarantors that if
the Collateral Trustee at any time receives:





          (1) an Officers’ Certificate stating that (A) the signing officer has read Article 4 of
this Agreement and understands the provisions and the definitions relating hereto, (B) such
officer has made such examination or investigation as is necessary to enable him or her to
express an informed opinion as to whether or not the conditions precedent in this Agreement
and all other Secured Debt Documents, if any, relating to the release of the Collateral have
been complied with and (C) in the opinion of such officer, such conditions precedent, if
any, have been complied with; and




30











 






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


then the Collateral Trustee will execute (with such acknowledgements and/or notarizations as are
required) and deliver such release to the Company or Guarantors on or before the later of (x) the
date specified in such request for such release and (y) the fifth Business Day after the date of
receipt of the items required by this Section 4.1(b) by the Collateral Trustee.





     (c) The Collateral Trustee hereby agrees that:




               (1) in the case of any release pursuant to clause (2) of Section 4.1(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 Company or Guarantor, the Collateral Trustee will either (A) be
present at and deliver the release at the closing of such transaction or (B) deliver the
release under customary escrow arrangements that permit such contemporaneous payment and
delivery of the release; and




               (2) within one Business Day of the receipt by it of any Officer’s Certificate in
support of a release of Collateral pursuant to Section 4.1(a) or 4.1(b), the Collateral
Trustee will deliver a copy of such Officer’s Certificate to each Junior Lien
Representative.



     SECTION 4.2 Delivery of Copies to Secured Debt Representatives. The Company will deliver to each Secured Debt Representative, simultaneous with any
delivery made to the Collateral Trustee pursuant to Section 4.1(b), a copy of each Officers’
Certificate delivered to the Collateral Trustee pursuant to Section 4.1(b), together with copies of
all documents delivered to the Collateral Trustee with such Officers’ Certificate.



     SECTION 4.3 Collateral Trustee not Required to Serve, File, Register or Record. The Collateral Trustee is not required to serve, file, register or record any instrument
releasing or subordinating its Liens on any Collateral; provided, however, that if the Company or
any Guarantor shall make a written demand for a termination statement under Section 9-513(c) of the
UCC, the Collateral Trustee shall comply with the written request of such Company or Guarantor to
comply with the requirements of such UCC provision; provided, further, that the Collateral Trustee
must first confirm with the Secured Debt Representatives that the requirements of such UCC
provisions have been satisfied.



     SECTION 4.4 Release of Liens in Respect of Secured Debt. The Collateral Trustee’s Liens upon the Collateral will no longer secure a particular
Series of Secured Debt outstanding under documents governing such Series of Secured Debt or any
other Obligations under the applicable Secured Debt, and the right of the holders of such Series of
Secured Debt and such Obligations to the benefits and proceeds of the Collateral Trustee’s Lien on
the Collateral will terminate and be discharged:



31









 






     (a) upon satisfaction and discharge of all obligations under such Series of Secured
Debt if the applicable Secured Debt Documents contain satisfaction and discharge provisions;




     (b) upon a legal defeasance or covenant defeasance of such Series of Secured Debt if
the applicable Secured Debt Documents contain legal defeasance or covenant defeasance
provisions and if such defeasance is effected in compliance with the provisions of such
applicable Secured Debt Document;




     (c) upon payment in full and discharge of all amounts of such Series of Secured Debt
outstanding under such governing documents and all Obligations that are outstanding, due and
payable under the applicable Secured Debt Documents at the time the Series of Secured Debt
is paid in full and discharged; or




     (d) in whole or in part, with the consent of the holders of the requisite percentage of
the holders of such Series of Secured Debt in accordance with the amendment provisions of
the applicable Secured Debt Documents, and upon delivery of instructions and any other
documentation, in each case, as required by such applicable Secured Debt Documents, in a
form satisfactory to the Collateral Trustee.




Promptly following the occurrence of any event described in this Section 4.4, the applicable
Secured Debt Representative shall promptly provide written notice thereof to the Collateral
Trustee.



ARTICLE
5. IMMUNITIES OF THE COLLATERAL TRUSTEE




     SECTION 5.1 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.



     SECTION 5.2 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, attorneys, accountants, appraisers or
other experts or advisors selected by it in good faith as it may reasonably require and will not be
responsible for any misconduct or negligence on the part of any of them.



     SECTION 5.3 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 Required
Debtholders (or as otherwise required under any Security Document), the Collateral Trustee
shall 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, as



32









 







determined by the Collateral
Trustee in its sole discretion. 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
Secured Debt (other than this Agreement and the other Security Documents).



     SECTION 5.4 Solicitation of Instructions.



          (a) The Collateral Trustee may at any time solicit written confirmatory instructions, in the
form of an Act of Required 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 or the other
Security Documents.




          (b) No written direction given to the Collateral Trustee by an Act of Required Debtholders
that in the reasonable 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 be binding upon the
Collateral Trustee unless the Collateral Trustee elects, at its sole option, to accept such
direction.




     SECTION 5.5 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 Document, except for its own gross negligence,
bad faith or willful misconduct as determined by a final and nonappealable decision of a court of
competent jurisdiction.



     SECTION 5.6 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.



     SECTION 5.7 Entitled to Rely. 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 Company or any Guarantor in compliance
with the provisions of this Agreement or delivered to it by any Secured Debt Representative as to
the holders of Secured Obligations 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 an 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 an Officers’
Certificate or opinion of counsel as to such matter and such Officers’ Certificate or opinion of
counsel shall be full warranty and protection to the



33









 







Collateral Trustee for any action taken,
suffered or omitted by it under the provisions of this Agreement and the other Security Documents.



     SECTION 5.8 Secured Debt Default. Except for its obligations under Section 3.3, 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 is directed by an Act of Required Debtholders.



     SECTION 5.9 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 Required
Debtholders and will be fully protected if it does so, without limiting the effect of the
provisions of this Article 5, and any action taken, suffered or omitted pursuant hereto or thereto
shall be binding on the holders of Secured Obligations.



     SECTION 5.10 Security or Indemnity in Favor 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 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.



     SECTION 5.11 Rights of the Collateral Trustee. 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 or
under the other Security Documents, 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 hereto entitled to give such direction or by order of a court of competent
jurisdiction.



     SECTION 5.12 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 Liens on 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




34









 







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 negligence,
bad faith or willful 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 the Company or any Guarantor 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 holders of the Secured Obligations concerning the perfection of
the Liens granted hereunder or in the value of any of the Collateral.




     SECTION 5.13 Assumption of Rights, Not Assumption of Duties. Notwithstanding anything to the contrary contained herein:




     (1) 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
been executed;




     (2) 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




     (3) 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.



     SECTION 5.14 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, state 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, state 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.



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ARTICLE 6. RESIGNATION AND REMOVAL OF THE COLLATERAL TRUSTEE




     SECTION 6.1 Resignation or Removal of Collateral Trustee. Subject to the appointment of a successor Collateral Trustee as provided in Section 6.2 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 Secured Debt Representative and the Company, provided that such notice period
may be waived by each Secured Debt Representative and the Company; and




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




     SECTION 6.2 Appointment of Successor Collateral Trustee. Upon any such resignation or removal, a successor Collateral Trustee may be appointed by an
Act of Required Debtholders subject to the consent of the Company. If no successor Collateral
Trustee has been so appointed and accepted such appointment within 45 days after the predecessor
Collateral Trustee gave notice of resignation or was removed, the retiring Collateral Trustee may
(at the expense of the Company), 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 bank or trust company:




     (1) authorized to exercise corporate trust powers;




     (2) having a combined capital and surplus of at least $100,000,000;




     (3) maintaining an office in New York, New York; and




     (4) that is not a Secured Debt Representative.



     The Collateral Trustee will fulfill its obligations hereunder until a successor Collateral
Trustee meeting the requirements of this Section 6.2 has accepted its appointment as Collateral
Trustee and the provisions of Section 6.3 have been satisfied.



     SECTION 6.3 Succession. When the Person so appointed as successor Collateral Trustee accepts such appointment:




     (1) 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




     (2) the predecessor Collateral Trustee will (at the expense of the Company) promptly
transfer all Liens and collateral security and other property of the Trust Estates within
its possession or control to the possession or control of the successor Collateral Trustee
and will execute instruments and assignments as may be necessary 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 Estates.



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Thereafter the predecessor Collateral Trustee will remain entitled to enforce the immunities
granted to it in Article 5 and the provisions of Sections 7.10 and 7.11.




     SECTION 6.4 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 successor of the Collateral Trustee pursuant to Section 6.3, provided that (i)
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 (1) through (4) of Section 6.2 and (ii)
prior to any such merger, conversion or consolidation, the Collateral Trustee shall have notified
the Company, each Parity Lien Representative and each Junior Lien Representative thereof in
writing.



ARTICLE
7. MISCELLANEOUS PROVISIONS




     SECTION 7.1 Amendment.



          (a) No amendment or supplement to the provisions of this Agreement or any other Security
Document will be effective without the approval of the Collateral Trustee acting as directed by an
Act of Required Debtholders, except that:





          (1) any amendment or supplement that has the effect solely of (i) adding or maintaining
Collateral, securing additional Secured Debt that was otherwise
permitted by the terms of the Secured Debt Documents to be secured by the Collateral or
preserving, perfecting or establishing the priority of the Liens thereon or the rights of
the Collateral Trustee therein, (ii) curing any ambiguity, defect or inconsistency; (iii)
providing for the assumption of the Company’s or any Guarantor’s obligations under any
Security Document in the case of a merger or consolidation or sale of all or substantially
all of the Company’s or such Guarantor’s assets, as applicable; or (iv) making any change
that would provide any additional rights or benefits to the Secured Parties or the
Collateral Trustee or that does not adversely affect the legal rights under any Secured Debt
Document of any Secured Party or the Collateral Trustee, will, in each case, become
effective when executed and delivered by the Company or any other applicable Guarantor party
thereto and the Collateral Trustee;




          (2) no amendment or supplement that reduces, impairs or adversely affects the right of
any holder of Secured Obligations:




          (A) to vote its outstanding Secured Debt as to any matter described as subject
to an Act of Required Debtholders or direction by the Required Parity Lien
Debtholders or Required Junior Lien Debtholders (or amends the provisions of this
clause (2) or the definitions of “Act of Required Debtholders”, “Required Parity
Lien Debtholders” or “Required Junior Lien Debtholders”),



37









 






          (B) 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 4.1, or




          (C) to require that Liens securing Secured Obligations be released only as set
forth in the provisions described in Section 4.1,


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





          (3) no amendment or supplement that imposes any obligation upon the Collateral Trustee
or any Secured Debt Representative or adversely affects the rights of the Collateral
Trustee, as determined by the Collateral Trustee in its sole discretion, or any Secured Debt
Representative, respectively, in its individual capacity as such will become effective
without the consent of the Collateral Trustee or such Secured Debt Representative,
respectively.



          (b) Notwithstanding Section 7.1(a) but subject to Sections 7.1(a)(2) and 7.1(a)(3):





          (1) any Security Document that secures Junior Lien Obligations (but not Parity Lien
Obligations) may be amended or supplemented with the approval of the Collateral Trustee
acting as directed in writing by the Required Junior Lien Debtholders, unless such amendment
or supplement would not be permitted under the terms of this Agreement or the other Parity
Lien Documents; and




          (2) any amendment or waiver of, or any consent under, any provision of this Agreement
or any other Security Document that secures Parity Lien Obligations (except any such
amendment, waiver or consent that releases Collateral with respect to which any consent of
holders of Junior Lien Debt is required pursuant to this Agreement, which will be governed
by the provisions set forth above) will apply automatically to any comparable provision of
any comparable Junior Lien Document without the consent of or notice to any holder of Junior
Lien Obligations and without any action by the Company or any Guarantor or any holder of
notes or other Junior Lien Obligations.



          (c) The Collateral Trustee will not enter into any amendment or supplement unless it has
received an Officers’ Certificate to the effect that such amendment or supplement will not result
in a breach of any provision or covenant contained in any of the Secured Debt Documents. Prior to
executing any amendment or supplement pursuant to this Section 7.1, the Collateral Trustee will be
entitled to receive an opinion of counsel of the Company (which may be provided by internal counsel
to the Company) to the effect that the execution of such document is authorized or permitted
hereunder, and with respect to amendments adding Collateral, an opinion of counsel of the Company
addressing customary perfection, and if such additional Collateral consists of equity interests of
any Person, priority matters with respect to such additional Collateral (subject to customary
qualifications and assumptions).





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          (d) The holders of Junior Lien Obligations and the Junior Lien Representatives agree that each
Security Document that secures Junior Lien Obligations (but not also securing Parity Lien
Obligations) will include language substantially to the effect of the following:




     “Notwithstanding anything herein to the contrary, the lien and security interest granted to
the Collateral Trustee pursuant to this Agreement and the exercise of any right or remedy by such
Collateral Trustee hereunder are subject to the provisions of the Collateral Trust Agreement, dated
as of June 5, 2009, among the Company, the Guarantors from time to time party thereto, Wilmington
Trust FSB, as Trustee under the Indenture (as defined therein) and Wilmington Trust FSB, as
Collateral Trustee (as amended, supplemented, amended and restated or otherwise modified and in
effect from time to time, the “Collateral Trust Agreement”). In the event of any conflict between
the terms of the Collateral Trust Agreement and this Agreement, the terms of the Collateral Trust
Agreement will govern.”


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




          (e) Notwithstanding anything the contrary contained in this Agreement or any other Secured
Debt Document, no amendment or supplement to the provisions of this Agreement that relate to the
Intercreditor Agreement (including the form thereof, the agreement to be bound by the terms thereof
or the direction to, or obligation of, the Collateral Trustee to enter into the Intercreditor
Agreement in accordance with Article 7.24 hereof and otherwise take such actions
as may be required of the Collateral Trustee as set forth therein) or the relative priority of
the Parity Liens and the Junior Liens, on the one hand, and the Permitted Priority Liens, on the
other hand, will be effective without the consent of the Permitted Priority Lien Representative or,
at any time when no Permitted Priority Debt Obligations are in effect, the Company. This provision
is intended for the benefit of, and will be enforceable as a third party beneficiary by, each
present and future holder of Permitted Priority Debt Obligations, each present and future Permitted
Priority Lien Representative and, at any time that no Permitted Priority Debt Obligations are in
effect, the Company.




     SECTION 7.2 Voting. In connection with any matter under this Agreement requiring a vote of holders of Secured
Debt, each Series of Secured Debt will cast its votes in accordance with the Secured Debt Documents
governing such Series of Secured Debt. The amount of Secured Debt to be voted by a Series of
Secured Debt will equal (1) the aggregate outstanding principal amount of Secured Debt held by such
Series of Secured Debt (including outstanding letters of credit whether or not then available or
drawn), plus (2) the aggregate unfunded commitments to extend credit which, when funded, would
constitute Indebtedness of such Series of Secured Debt. Following and in accordance with the
outcome of the applicable vote under its Secured Debt Documents, the Secured Debt Representative of
each Series of Secured Debt will vote the total amount of Secured Debt under that Series of Secured
Debt as a block in respect of any vote under this Agreement.



39









 





     SECTION 7.3 Further Assurances; Insurance.



          (a) The Company and each of the Guarantors 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 Secured Debt
Representatives and holders of Secured Obligations, duly created and enforceable and perfected
Liens upon the Collateral, (including any property or assets that are acquired or otherwise become
Collateral after the date hereof), in each case as contemplated by, and with the Lien priority
required under, the Secured Debt Documents.




          (b) Upon the reasonable request of the Collateral Trustee or any Secured Debt Representative
at any time and from time to time, the Company and each of the Guarantors 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 for
the benefit of holders of Secured Obligations.




          (c) The Company and the Guarantors will:





          (1) keep their properties adequately insured at all times by financially sound and
reputable insurers;




          (2) maintain such other insurance, to such extent and against such risks (and with such
deductibles, retentions and exclusions), including fire and other risks insured against by
extended coverage, as is customary with companies in the same or similar businesses
operating in the same or similar locations, including public liability insurance against
claims for personal injury or death or property damage occurring upon, in, about or in
connection with the use of any properties owned, occupied or controlled by them;




          (3) maintain such other insurance as may be required by law; and




          (4) maintain such other insurance as may be required by the Security Documents.



          (d) Upon the request of the Collateral Trustee, the Company and the Guarantors will furnish to
the Collateral Trustee full information as to their property and liability insurance carriers.




          (e) All insurance policies required by Sections 7.3(c) (except for the insurance described in
7.3(c)(3)) above will:





          (1) provide that, with respect to third party liability insurance, the Secured Debt
Representatives and holders of Secured Obligations, as a class, shall be named as additional
insureds; and



40









 






          (2) name the Collateral Trustee as an additional insured and loss payee as its
interests may appear.



          (f) Upon the request of the Collateral Trustee, the Company and the Guarantors will permit the
Collateral Trustee or any of its agents or representatives, at reasonable times and intervals upon
reasonable prior notice during regular business hours, to visit their offices and sites and inspect
any of the Collateral and to discuss matters relating to the Collateral with their respective
officers. The Company and the Guarantors shall, at any reasonable time and from time to time upon
reasonable prior notice during regular business hours, permit the Collateral Trustee or any of its
agents or representatives to examine and make copies of and abstracts from the records and books of
account of the Company and the Guarantors and their respective Subsidiaries, all at the Company’s
expense.




     SECTION 7.4 Perfection of Junior Trust Estate.



     Solely for purposes of perfecting the Liens of the Collateral Trustee in its capacity as
bailee of the holders of Junior Lien Obligations and the Junior Lien Representatives in any portion
of the Junior Trust Estate in the possession or control of the Collateral Trustee (or its agents or
bailees) as part of the Senior Trust Estate including, without limitation, any instruments, goods,
negotiable documents, tangible chattel paper, electronic chattel paper, certificated securities,
money, deposit accounts and securities accounts, the Collateral Trustee, the holders of Parity Lien
Obligations and the Parity Lien Representatives hereby acknowledge
that the Collateral Trustee also holds such property as bailee for the Collateral Trustee for
the benefit of the holders of Junior Lien Obligations and the Junior Lien Representatives.



     SECTION 7.5 Successors and Assigns.




          (a) Except as provided in Section 5.2, 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 Secured Debt Representative and each present and future holder of Secured
Obligations, each of whom will be entitled to enforce this Agreement as a third-party beneficiary
hereof, and all of their respective successors and assigns.




          (b) Neither the Company nor any Guarantor may delegate any of its duties or assign any of its
rights hereunder, and any attempted delegation or assignment of any such duties or rights will be
null and void. All obligations of the Company and the Guarantors hereunder will inure to the sole
and exclusive benefit of, and be enforceable by, the Collateral Trustee, each Secured Debt
Representative and each present and future holder of Secured Obligations, each of whom will be
entitled to enforce this Agreement as a third-party beneficiary hereof, and all of their respective
successors and assigns.




     SECTION 7.6 Delay and Waiver. No failure to exercise, no course of dealing with respect to the exercise of, and no delay
in exercising, any right, power or remedy arising under this Agreement or any of the other Security
Documents will impair any such right, power or remedy or operate as a waiver thereof. No single or
partial exercise of any such right, power or



41









 







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.



     SECTION 7.7 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:

	 	Wilmington Trust FSB
	 

	 	c/o Wilmington Trust Company
	 

	 	1100 N. Market Street
	 

	 	Wilmington, Delaware 19890-1615
	 

	 	Attn.: Michael G. Oller, Jr. CCTS,
	 

	 	Assistant Vice President
	 

	 	Telephone: (302) 636-6410
	 

	 	Fax: (302) 636-4145
	 
	 	 
	If to the Company or any Guarantor:

	 	Cricket Communications, Inc.
	 

	 	10307 Pacific Center Court
	 

	 	San Diego, California 92121
	 

	 	Attention: General Counsel
	 

	 	Fax: (858) 882-6080
	 
	 	 
	If to the Trustee:

	 	Wilmington Trust FSB
	 

	 	c/o Wilmington Trust Company
	 

	 	1100 N. Market Street
	 

	 	Wilmington, Delaware 19890-1615
	 

	 	Attn.: Michael G. Oller, Jr. CCTS,
	 

	 	Assistant Vice President
	 

	 	Telephone: (302) 636-6410
	 

	 	Fax: (302) 636-4145





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




     All notices and communications will be faxed to the relevant fax number set forth above or
mailed by first class mail, certified or registered, return receipt requested, or by overnight air
courier guaranteeing next day delivery, to the relevant address set forth above or, as to holders
of Secured Debt, all notices and communications will be sent in the manner specified in the Secured
Debt Documents applicable to such holder. Failure to mail a notice or communication to a holder of
Secured Debt or any defect in it will not affect its sufficiency with respect to other holders of
Secured Debt.



42









 





     If a notice or communication is mailed in the manner provided above within the time
prescribed, it is duly given, whether or not the addressee receives it.



     SECTION 7.8 Notice Following Discharge of Parity Lien Obligations . Promptly following the Discharge of Parity Lien Obligations with respect to one or more
Series of Parity Lien Debt, each Parity Lien Representative with respect to each applicable Series
of Parity Lien Debt that is so discharged will provide written notice of such discharge to the
Collateral Trustee and to each other Secured Debt Representative.



     SECTION 7.9 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 and prior writings in
respect of such undertaking.



     SECTION 7.10 Compensation; Expenses. The Company and the Guarantors jointly and severally agree to pay, promptly upon demand:




     (1) such compensation to the Collateral Trustee and its agents as the Company and the
Collateral Trustee may agree in writing from time to time;




     (2) all reasonable costs and expenses incurred by the Collateral Trustee and its agents
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 hereto or thereto;




     (3) all reasonable fees, expenses and disbursements of legal counsel and any auditors,
accountants, consultants or appraisers or other professional advisors and agents engaged by
the Collateral Trustee 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 hereto or thereto
and any other document or matter requested by the Company or any Guarantor;




     (4) all reasonable costs and expenses incurred by the Collateral Trustee and its agents
in creating, perfecting, preserving, releasing or enforcing the Collateral Trustee’s Liens
on the Collateral, including filing and recording fees, expenses and taxes, stamp or
documentary taxes, and search fees;




     (5) all other reasonable costs and expenses incurred by the Collateral Trustee and its
agents 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



43









 






     (6) after the occurrence of any Secured Debt Default, all costs and expenses incurred
by the Collateral Trustee, its agents and any Secured 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 Secured Obligations or the
proof, protection, administration or resolution of any claim based upon the Secured
Obligations in any Insolvency or Liquidation Proceeding, including all fees and
disbursements of attorneys, accountants, auditors, consultants, appraisers and other
professionals engaged by the Collateral Trustee, its agents or the Secured Debt
Representatives.


The agreements in this Section 7.10 will survive repayment of all other Secured Obligations and the
removal or resignation of the Collateral Trustee.




     SECTION 7.11 Indemnity.



          (a) The Company and the Guarantors jointly and severally agree to defend, indemnify, pay and
hold harmless the Collateral Trustee and its 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; provided, no Indemnitee will be entitled to
indemnification hereunder with respect to any Indemnified Liability to the extent such Indemnified
Liability is found by a final and nonappealable decision of a court of competent jurisdiction to
have resulted from the gross negligence, bad faith or willful misconduct of such Indemnitee.




          (b) All amounts due under this Section 7.11 will be payable upon demand.




          (c) To the extent that the undertakings to defend, indemnify, pay and hold harmless set forth
in Section 7.11(a) may be unenforceable in whole or in part because they violate any law or public
policy, each of the Company and the Guarantors 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) Neither the Company nor any Guarantor will ever assert any claim against any Indemnitee,
on any theory of liability, for any lost profits or special, indirect or consequential damages or
(to the fullest extent a claim for punitive damages may lawfully be waived) any punitive damages
arising out of, in connection with, or as a result of, this Agreement or any other Secured Debt
Document or any agreement or instrument or transaction contemplated hereby or relating in any
respect to any Indemnified Liability, and the Company and each of the Guarantors hereby forever
waives, releases and agrees not to sue upon any claim for any such lost profits or special,
indirect, consequential or (to the fullest extent lawful) punitive damages, whether or not accrued
and whether or not known or suspected to exist in its favor.




          (e) The agreements in this Section 7.11 will survive repayment of all other Secured
Obligations and the removal or resignation of the Collateral Trustee.




44









 





     SECTION 7.12 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.



     SECTION 7.13 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.



     SECTION 7.14 Obligations Secured. All obligations of the Company and the Guarantors set forth in or arising under this
Agreement will be Secured Obligations and are secured by all Liens granted by the Security
Documents.



     SECTION 7.15 Governing Law. THE INTERNAL LAW OF THE STATE OF NEW YORK WILL GOVERN AND BE USED TO CONSTRUE THIS
AGREEMENT.



     SECTION 7.16 Consent to Jurisdiction. All judicial proceedings brought against any party hereto arising out of or relating to
this Agreement or any of the other Security Documents may be brought in any state or federal court
of competent jurisdiction in the State, County and City of New York. By executing and delivering
this Agreement, the Company and each Guarantor, for itself and in connection with its properties,
irrevocably:




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




     (2) waives any defense of forum non conveniens;




     (3) 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 7.7;




     (4) agrees that service as provided in clause (3) 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




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



     SECTION 7.17 Waiver of Jury Trial. Each party to this Agreement waives its rights to a jury trial of any claim or cause of
action based upon or arising under this Agreement or any of the other Security Documents or any
dealings between them relating to the subject matter of this Agreement or the intents and purposes
of the other Security Documents. The scope of this



45









 







waiver is intended to be all-encompassing of
any and all disputes that may be filed in any court and that relate to the subject matter of this
Agreement and the other Security Documents, including contract claims, tort
claims, breach of duty claims and all other common law and statutory claims. Each party to
this Agreement acknowledges that this waiver is a material inducement to enter into a business
relationship, that each party hereto has already relied on this waiver in entering into this
Agreement, and that each party hereto will continue to rely on this waiver in its related future
dealings. Each party hereto further warrants and represents that it has reviewed this waiver with
its legal counsel and that it knowingly and voluntarily waives its jury trial rights following
consultation with legal counsel. This waiver is irrevocable, meaning that it may not be modified
either orally or in writing (other than by a mutual written waiver specifically referring to this
Section 7.17 and executed by each of the parties hereto), and this waiver will apply to any
subsequent amendments, renewals, supplements or modifications of or to this Agreement or any of the
other Security Documents or to any other documents or agreements relating thereto. In the event of
litigation, this Agreement may be filed as a written consent to a trial by the court.



     SECTION 7.18 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.



     SECTION 7.19 Effectiveness. This Agreement will become effective upon the execution
of a counterpart hereof by each of the parties hereto on the date hereof and receipt by each party
of written notification of such execution and written or telephonic authorization of delivery
thereof.



     SECTION 7.20 Additional Guarantors. The Company will cause each Subsidiary that becomes a Guarantor 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 Collateral
Trustee a Collateral Trust Joinder within 30 days of the event causing such Subsidiary to become a
Guarantor or to be required by a Secured Debt Document to become a party to this Agreement (as
applicable), whereupon such Subsidiary will be bound by the terms hereof to the same extent as if
it had executed and delivered this Agreement as of the date hereof. The Company shall promptly
provide each Secured Debt Representative with a copy of each Collateral Trust Joinder executed and
delivered pursuant to this Section 7.20; provided, however, that the failure to so deliver a copy
of the Collateral Trust Joinder to any then existing Secured Debt Representative shall not affect
the inclusion of such Person as a Guarantor if the other requirements of this Section 7.20 are
complied with.



     SECTION 7.21 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 Parity Lien Obligations is rescinded or
must otherwise be returned in an Insolvency or Liquidation Proceeding or otherwise by any holder of
Parity Lien Obligations or Parity Lien Representative 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 Parity Lien Obligations is recovered from
any holder of Parity Lien



46









 







Obligations or any Parity Lien Representative in an Insolvency or
Liquidation Proceeding or otherwise, such payment or distribution received by any holder of Junior
Lien Obligations or Junior Lien Representative with respect to the Junior 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, that Junior Lien Representative
or that holder of a Junior Lien Obligation, as the case may be, will forthwith deliver the same to
the Collateral Trustee, for the account of the holders of the Parity Lien Obligations and other
Obligations secured by a Permitted Priority Lien, to be applied in accordance with Section 3.4.
Until so delivered, such proceeds will be held by that Junior Lien Representative or that holder of
a Junior Lien Obligation, as the case may be, for the benefit of the holders of the Parity Lien
Obligations and other Obligations secured by a Permitted Priority Lien.



     SECTION 7.22 Insolvency. This Agreement will be applicable both before and after the commencement of any Insolvency
or Liquidation Proceeding by or against the Company or any Guarantor. The relative rights, as
provided for in this Agreement, will continue after the commencement of any such Insolvency or
Liquidation Proceeding on the same basis as prior to the date of the commencement of any such case,
as provided in this Agreement.



     SECTION 7.23 Rights and Immunities of Secured Debt Representatives. The Trustee will be entitled to all of the rights, protections, immunities and indemnities
set forth in the Indenture and any future Secured 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 Secured Debt with respect to which such Person is acting
or will act as representative, in each case as if specifically set forth herein. In no event will
any Secured Debt Representative be liable for any act or omission on the part of the Company or any
Guarantor or the Collateral Trustee hereunder.



     SECTION 7.24 Intercreditor Agreement. Upon the designation of any Indebtedness as “Permitted Priority Debt” in accordance with
clause (1) of the definition of Permitted Priority Debt, each Secured Debt Representative and the
Collateral Trustee, on behalf of the holders of the Parity Lien Obligations, the holders of Junior
Lien Obligations and the Secured Debt Representatives, shall enter into the Intercreditor Agreement
in substantially the form attached hereto as Exhibit D.



     Upon execution by the Collateral Trustee, the Intercreditor Agreement shall be binding on the
Secured Debt Representatives and holders of Secured Obligations and each Secured Debt
Representative, on behalf of the applicable holders of the Parity Lien Obligations or the Junior
Lien Obligations, hereby directs the Collateral Trustee to take all actions required of it pursuant
to the Intercreditor Agreement.



47









 





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



	 	 	 	 	 
	 	CRICKET COMMUNICATIONS, INC.

 	 
	 	By:  	/s/ Robert J. Irving, Jr.
 	 
	 	 	Name:  	Robert J. Irving, Jr. 	 
	 	 	Title:  	Senior Vice President, General
Counsel and Secretary 	 
	 








48









 











	 	 	 	 	 
	 	LEAP WIRELESS INTERNATIONAL, INC.

 	 
	 	By:  	/s/ Robert J. Irving, Jr.
 	 
	 	 	Name:  	Robert J. Irving, Jr. 	 
	 	 	Title:  	Senior Vice President, General
Counsel and Secretary 	 
	 
	 	CRICKET LICENSEE (REAUCTION), LLC

CRICKET LICENSEE I, LLC

CRICKET LICENSEE 2007, LLC

 	 
	 	By:  	/s/ Robert J. Irving, Jr.
 	 
	 	 	Name:  	Robert J. Irving, Jr. 	 
	 	 	Title:  	Senior Vice President, General
Counsel and Secretary 	 
	 








49









 











	 	 	 	 	 
	 	WILMINGTON TRUST FSB, as Trustee under the Indenture

 	 
	 	By:  	/s/ Michael G. Oller
 	 
	 	 	Name:  	Michael G. Oller 	 
	 	 	Title:  	Assistant Secretary and
Assistant Vice President 	 
	 
	 	WILMINGTON TRUST FSB, as Collateral Trustee

 	 
	 	By:  	/s/ Michael G. Oller
 	 
	 	 	Name:  	Michael G. Oller 	 
	 	 	Title:  	Assistant Secretary and
Assistant Vice President 	 
	 




50











 





EXHIBIT A

to Collateral Trust Agreement




FORM OF

ADDITIONAL SECURED DEBT DESIGNATION




     Reference is made to the Collateral Trust Agreement dated as of June 5, 2009 (as amended,
supplemented, amended and restated or otherwise modified and in effect from time to time, the
“Collateral Trust Agreement”) among Cricket Communications Inc., a Delaware corporation (the
“Company”), the Guarantors from time to time party thereto, Wilmington Trust FSB, as Trustee under
the Indenture (as defined therein), the other Secured Debt Representatives from time to time party
thereto and Wilmington Trust FSB, as Collateral Trustee. Capitalized terms used but not otherwise
defined herein shall have the meaning set forth in the Collateral Trust Agreement. This Additional
Secured Debt Designation is being executed and delivered in order to designate additional secured
debt as either Parity Lien Debt or Junior Lien Debt entitled to the benefit of the Collateral Trust
Agreement.



     The undersigned, the duly appointed [specify title] of the Company hereby certifies on behalf
of the Company that:




          (A) [insert name of the Company or Guarantor] intends to incur additional
Secured Debt (“Additional Secured Debt”) which will be [select appropriate
alternative] [Parity Lien Debt permitted by each applicable Secured Debt Document to
be secured by a Parity Lien Equally and Ratably with all existing and future Parity
Lien Debt] or [Junior Lien Debt permitted by each applicable Secured Debt Document
to be secured with a Junior Lien Equally and Ratably with all existing and future
Junior Lien Debt];




          (B) The Additional Secured Debt is permitted to be incurred and secured Equally
and Ratably by a [Parity Lien][Junior Lien] under each applicable Secured Debt
Document;




          (C) the name and address of the Secured Debt Representative for the Additional
Secured Debt for purposes of Section 7.7 of the Collateral Trust Agreement is:




 




 




Telephone:
 





Fax:
 





          (D) The Company has caused a copy of this Additional Secured Debt Designation
to be delivered to each existing Secured Debt Representative.



A-1









 





     IN WITNESS WHEREOF, the Company has caused this Additional Secured Debt Designation to be duly
executed by the undersigned officer as of                                         , 20          .



	 	 	 	 	 
	 	CRICKET COMMUNICATIONS INC.

 	 
	 	By:  	
 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 



ACKNOWLEDGEMENT OF RECEIPT



The undersigned, the duly appointed Collateral Trustee under the Collateral Trust Agreement, hereby
acknowledges receipt of an executed copy of this Additional Secured Debt Designation.




	 	 	 	 	 
	 	Wilmington Trust FSB, as Collateral Trustee

 	 
	 	By:  	
 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 	 	 
	 	By:  	
 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 



A-2









 






	 	 	 	 	 



EXHIBIT B

to Collateral Trust Agreement




FORM OF

COLLATERAL TRUST JOINDER — ADDITIONAL DEBT





     Reference is made to the Collateral Trust Agreement dated as of June 5, 2009 (as amended,
supplemented, amended and restated or otherwise modified and in effect from time to time, the
“Collateral Trust Agreement”) among Cricket Communications Inc., a Delaware corporation (the
“Company”), the Guarantors from time to time party thereto, Wilmington Trust FSB, as Trustee under
the Indenture (as defined therein), the other Secured Debt Representatives from time to time party
thereto and Wilmington Trust FSB, as Collateral Trustee. Capitalized terms used but not otherwise
defined herein shall have the meaning set forth in the Collateral Trust Agreement. This Collateral
Trust Joinder is being executed and delivered pursuant to Section 3.8 of the Collateral Trust
Agreement as a condition precedent to the debt for which the undersigned is acting as agent being
entitled to the benefits of being Additional Secured Debt under the Collateral Trust Agreement.



     1. Joinder. The undersigned,                                         , a                            , (the “New
Representative”) as [trustee, administrative agent] under that certain [describe applicable
indenture, credit agreement or other document governing the Additional Secured Debt] hereby agrees
to become party as [a Junior Lien Representative] [a Parity Lien Representative] under the
Collateral Trust Agreement for all purposes thereof on the terms set forth therein, and to be bound
by the terms of the Collateral Trust Agreement as fully as if the undersigned had executed and
delivered the Collateral Trust Agreement as of the date thereof.



     2. Lien Sharing and Priority Confirmation.



     [Option A: to be used if Additional Debt is Parity Lien Debt] The undersigned New
Representative, on behalf of itself and each holder of such Series of Parity Lien Debt for which
the undersigned is acting as Parity Lien Representative, hereby agrees:




     (a) for the enforceable benefit of all holders of each existing and future
Series of Parity Lien Debt and each existing and future Parity Lien Representative,
that all Parity Lien Obligations will be and are secured Equally and Ratably by all
Parity Liens at any time granted by the Company or any Guarantor to secure any
Obligations in respect of such Series of Parity Lien Debt, and that all such Parity
Liens will be enforceable by the Collateral Trustee for the benefit of all holders
of Parity Lien Obligations Equally and Ratably;




     (b) for the enforceable benefit of all holders of each existing and future
Series of Parity Lien Debt and Series of Junior Lien Debt, and each existing and
future Parity Lien Representative and Junior Lien Representative, that the holders
of Obligations in respect of such Series of Parity Lien Debt for which the
undersigned is acting as Parity Lien Representative are bound by the provisions of
the Collateral Trust Agreement, including the provisions relating to



B-1









 







the ranking of Parity Liens and the order of application of proceeds from
enforcement of Parity Liens;




     (c) for the enforceable benefit of all holders of each existing and future
Series of Permitted Priority Debt and Series of Parity Lien Debt and each existing
and future Permitted Priority Lien Representative and Parity Lien Representative,
that the holders of Obligations in respect of such Series of Parity Lien Debt for
which the undersigned is acting as Parity Lien Representative are bound by the
provisions of the Intercreditor Agreement (whether now in existence or entered into
in the future), including the provisions relating to the ranking of Liens and the
order of application of proceeds from the enforcement of Liens as set forth therein;
and




     (d) that it consents to and directs the Collateral Trustee to perform its
obligations under the Collateral Trust Agreement and the other Security Documents
(including the Intercreditor Agreement). [or]



     [Option B: to be used if Additional Debt is Junior Lien Debt] The undersigned New
Representative, on behalf of itself and each holder of such Series of Junior Lien Debt for which
the undersigned is acting as Junior Lien Representative, hereby agrees:




     (a) for the enforceable benefit of all holders of each existing and future
Series of Junior Lien Debt and Series of Parity Lien Debt and each existing and
future Junior Lien Representative and Parity Lien Representative, that all Junior
Lien Obligations will be and are secured Equally and Ratably by all Junior Liens at
any time granted by the Company or any Guarantor to secure any Obligations in
respect of such Series of Junior Lien Debt, and that all such Junior Liens will be
enforceable by the Collateral Trustee for the benefit of all holders of Junior Lien
Obligations Equally and Ratably;




     (b) for the enforceable benefit of all holders of each existing and future
Series of Parity Lien Debt and Series of Junior Lien Debt and each existing and
future Parity Lien Representative and Junior Lien Representative, that the holders
of Obligations in respect of such Series of Junior Lien Debt for which the
undersigned is acting as Junior Lien Representative are bound by the provisions of
the Collateral Trust Agreement, including the provisions relating to the ranking of
Junior Liens and the order of application of proceeds from the enforcement of Junior
Liens;




     (c) for the enforceable benefit of all holders of each existing and future
Series of Junior Lien Debt, Series of Parity Lien Debt and Series of Permitted
Priority Debt and each existing and future Junior Lien Representative, Parity Lien
Representative and Permitted Priority Lien Representative, that the holders of
Obligations in respect of such Series of Junior Lien Debt for which the undersigned
is acting as Junior Lien Representative are bound by the provisions of the
Intercreditor Agreement (whether now in existence or entered into in the



B-2









 







future), including the provisions relating to the ranking of Liens and the
order of application of proceeds from the enforcement of Liens as set forth therein;
and




     (d) that it consents to and directs the Collateral Trustee to perform its
obligations under the Collateral Trust Agreement and the other Security Documents
(including the Intercreditor Agreement).



     3. Governing Law and Miscellaneous Provisions. The provisions of Article 7 of the
Collateral Trust Agreement will apply with like effect to this Collateral Trust Joinder.



     IN WITNESS WHEREOF, the parties hereto have caused this Collateral Trust Joinder to be
executed by their respective officers or representatives as of                                         , 20          .



B-3









 





	 	 	 	 	 
	 	[insert name of the new representative]

 	 
	 	By:  	
 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 


The Collateral Trustee hereby acknowledges receipt of this Collateral Trust Joinder and agrees to
act as Collateral Trustee for the New Representative and the holders of the Obligations represented
thereby:




	 	 	 	 	 
	 	Wilmington Trust FSB, as Collateral Trustee

 	 
	 	By:  	
 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 
	 	By:  	
 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 



B-4









 






	 	 	 	 	 



EXHIBIT C

to Collateral Trust Agreement




FORM OF

COLLATERAL TRUST JOINDER — ADDITIONAL GUARANTOR





     Reference is made to the Collateral Trust Agreement dated as of June 5, 2009 (as amended,
supplemented, amended and restated or otherwise modified and in effect from time to time, the
“Collateral Trust Agreement”) among Cricket Communications Inc., a Delaware corporation (the
“Company”), the Guarantors from time to time party thereto, Wilmington Trust FSB, as Trustee under
the Indenture (as defined therein), the other Secured Debt Representatives from time to time party
thereto and Wilmington Trust FSB, as Collateral Trustee. Capitalized terms used but not otherwise
defined herein shall have the meaning set forth in the Collateral Trust Agreement. This Collateral
Trust Joinder is being executed and delivered pursuant to Section 7.20 of the Collateral Trust
Agreement.



     1. Joinder. The undersigned,                                         , a                            , hereby agrees
to become party as a Guarantor under the Collateral Trust Agreement for all purposes thereof on the
terms set forth therein, and to be bound by the terms of the Collateral Trust Agreement as fully as
if the undersigned had executed and delivered the Collateral Trust Agreement as of the date
thereof.



     2. Governing Law and Miscellaneous Provisions. The provisions of Article 7 of the
Collateral Trust Agreement will apply with like effect to this Collateral Trust Joinder.



     IN WITNESS WHEREOF, the parties hereto have caused this Collateral Trust Joinder to be
executed by their respective officers or representatives as of                                         , 20          .



	 	 	 	 	 
	 	[                                                            ]

 	 
	 	By:  	
 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 



C-1









 







The Collateral Trustee hereby acknowledges receipt of this Collateral Trust Joinder and agrees to
act as Collateral Trustee with respect to the Collateral pledged by the new Guarantor:



	 	 	 	 	 
	 	Wilmington Trust FSB, as Collateral Trustee

 	 
	 	By:  	
 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 	 	 
	 	By:  	
 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 



C-2









 







EXHIBIT D

to Collateral Trust Agreement




Form of Intercreditor Agreement




[Separately Attached]





D-1











 





EXHIBIT D TO

COLLATERAL TRUST AGREEMENT




FORM OF

INTERCREDITOR AGREEMENT




          This INTERCREDITOR AGREEMENT (“Agreement”), is dated as of [                    ], 20[     ], and entered
into by and among Cricket Communications, Inc., a Delaware corporation (the “Company”), Leap
Wireless International, Inc., a Delaware corporation (“Leap”), certain subsidiaries of the Company
(the “Subsidiary Guarantors” and together with Leap, the “Guarantors”), [                    ], in its
capacity as [                    ] for the Priority Lien Claimholders (including its successors and assigns
in such capacity from time to time, the “Priority Lien Representative”), Wilmington Trust FSB, in
its capacity as Collateral Trustee under the Collateral Trust Agreement for the Secured Debt
Representatives and the Secured Debt Claimholders (including its successors and assigns in such
capacity from time to time, the “Collateral Trustee”), and each Secured Debt Representative. As
described in more detail in Section 8.10 hereof, this Agreement is intended to be binding on all
Secured Debt Representatives, Secured Debt Claimholders and Priority Lien Claimholders, as well as
the Priority Lien Representative and the Collateral Trustee. Capitalized terms used in this
Agreement have the meanings assigned to them in Article I below.



RECITALS




          The Company, the [                    ] and [                    ]1, have entered into a
[                         ]2 dated as of the date hereof providing for
[                         ]3 (as amended, restated, supplemented, modified, renewed, extended or
refinanced from time to time, the “Priority Lien Agreement”).



          The Company has issued prior to the date hereof senior secured notes in the aggregate
principal amount of $1,100,000,000 (including any additional notes that may be issued under the
Indenture from time to time and any exchange notes issued with respect to such notes and additional
notes, the “Notes”) pursuant to an indenture (the “Indenture”) dated as of June 3, 2009 among the
Company, the Guarantors and Wilmington Trust FSB, as trustee (in such capacity and including its
successors and assigns in such capacity from time to time, the “Indenture Trustee”).



          [                    ]4



          Additionally, the Company may from time to time enter into other series of secured
indebtedness as contemplated by the Collateral Trust Agreement and permitted by the Priority Lien
Documents and Secured Debt Documents.





 




			
	1	 	Describe Parties to Priority Lien Agreement.
	 
	2	 	Describe Priority Lien Agreement.
	 
	3	 	Describe debt issued pursuant to Priority Lien
Agreement
	 
	4	 	Describe other Secured Debt Obligations issued or
incurred as of the date of this Agreement, if any.





S-1









 





          The obligations of the Company and the Guarantors to (i) the Priority Lien Representative and
Priority Lien Claimholders and (ii) the Collateral Trustee, the Secured Debt Representatives and
the Secured Debt Claimholders are each secured by Liens on certain of the assets of the Company and
the Guarantors.



          The Company, the Guarantors, the Collateral Trustee, the Indenture Trustee and
[                    ]5 have entered into that certain Collateral Trust Agreement dated as of June
3, 2009 (as amended, restated, supplemented, modified, renewed, extended or refinanced from time to
time, the “Collateral Trust Agreement”) pursuant to which the Secured Debt Representatives on
behalf of the Secured Debt Claimholders have agreed to the relative priority of their respective
Liens on the Collateral and certain other rights, priorities and interests as set forth in the
Collateral Trust Agreement.



          As a condition to the closing of the Priority Lien Agreement, each of the Priority Lien
Representatives and the Priority Lien Claimholders, on the one hand, and the Collateral Trustee,
the Secured Debt Representatives and the Secured Debt Claimholders, on the other hand, have agreed
to the relative priority of their respective Liens on the Collateral and certain other rights,
priorities and interests as set forth in this Agreement.



AGREEMENT




          In consideration of the foregoing, the mutual covenants and obligations herein set forth and
for other good and valuable consideration, the sufficiency and receipt of which are hereby
acknowledged, the parties hereto, intending to be legally bound, hereby agree as follows:



          I. DEFINITIONS.



          1.1 Defined Terms. As used in the Agreement, the following terms shall have the
following meanings:



          “Agreement” means this Intercreditor Agreement, as amended, restated, supplemented, modified,
renewed, extended or refinanced from time to time.



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



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



          “Business Day” means any day other than a Saturday, a Sunday or a day on which banking
institutions in the City of New York or at a place of payment are authorized by law, regulation or
executive order to remain closed.



          “Cap Amount” has the meaning assigned to that term within the definition of “Priority Lien
Obligations.”





 




			
	5	 	Insert other Secured Debt Representatives party to the
Collateral Trust Agreement as of the date of this Agreement.





S-2









 





          “Collateral” means all of the assets and property of any Grantor, whether real, personal or
mixed, constituting both Secured Debt Collateral and Priority Lien Collateral.



          “Collateral Trust Agreement” has the meaning assigned to that term in the recitals to this
Agreement.



          “Collateral Trustee” has the meaning assigned to that term in the preamble to this Agreement.



          “Company” has the meaning assigned to that term in the preamble to this Agreement.



          “DIP Financing” has the meaning assigned to that term in Section 6.1.



          “Discharge of Priority Lien Obligations” means, except to the extent otherwise expressly
provided in Section 5.5:



          (1) termination or expiration of all commitments, if any, to extend credit that would
constitute Priority Lien Obligations;



          (2) payment in full in cash of the principal of, and interest and premium, if any on all
Priority Lien Obligations (other than any undrawn letters of credit);



          (3) discharge or cash collateralization (at the lower of (A) 105% of the aggregate undrawn
amount and (B) the percentage of the aggregate undrawn amount required for release of liens under
the terms of the applicable Priority Lien Document) of all letters of credit issued under the
Priority Lien Documents and constituting Priority Lien Obligations; and



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



          “Disposition” has the meaning assigned to that term in Section 5.1(b).



          “Duplicative UCC Financing Statements” means UCC financing statements (including fixture
filings) to be filed in the official records of the applicable jurisdictions, each such UCC
financing statement (including each fixture filing) to be identical to a corresponding Original UCC
Financing Statement.



          “Grantors” means the Company, each Guarantor and each other Person that has or may from time
to time hereafter execute and deliver a Priority Lien Document or a Secured Debt Document as a
grantor of a security interest (or the equivalent thereof).



          “Guarantor” has the meaning set forth in the preamble to this Agreement.



S-3









 





          “Hedging Obligations” means, with respect to any specified Person, the net obligations of such
Person under interest rate swap agreements, interest rate cap agreements, interest rate collar
agreements and other agreements or arrangements with respect to interest rate.



          “Indenture Trustee” has the meaning assigned to that term in the recitals to this Agreement.



          “Insolvency or Liquidation Proceeding” means:




     (1) any case commenced by or against the Company or any other Grantor under Title 11,
U.S. Code, or any similar federal or state law for the relief of debtors, any other
proceeding for the reorganization, recapitalization or adjustment or marshalling of the
assets or liabilities of the Company or any other Grantor, any receivership or assignment
for the benefit of creditors relating to the Company or any other Grantor or any similar
case or proceeding relative to the Company or any other Grantor or its creditors, as such,
in each case whether or not voluntary;




     (2) any liquidation, dissolution, marshalling of assets or liabilities or other winding
up of or relating to the Company or any other Grantor, in each case whether or not voluntary
and whether or not involving bankruptcy or insolvency; or




     (3) any other proceeding of any type or nature in which substantially all claims of
creditors of the Company or any other Grantor are determined and any payment or distribution
is or may be made on account of such claims.



          “Intercreditor Agreement Joinder” means an agreement substantially in the form of Exhibit A.



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



          “Lien Sharing and Priority Confirmation” has the meaning assigned to that term in the
Collateral Trust Agreement.



          “New Agent” has the meaning assigned to that term in Section 5.5.



          “Notes” has the meaning assigned to that term in the recitals to this Agreement.



          “Obligations” means all obligations of every nature of each Grantor from time to time owed to
any agent or trustee, the Priority Lien Claimholders, the Secured Debt Claimholders or any of them
or their respective Affiliates, in each case under the Priority Lien Documents or the Secured Debt
Documents, as the case may be, whether for principal (including reimbursement obligations with
respect to letters of credit whether drawn or not drawn), interest, premium, if any, penalties,
fees, indemnifications, reimbursements, damages, payments for early



S-4









 







termination of Hedging Obligations, Post-Petition Interest or otherwise and all guaranties of
any of the foregoing.



          “Original UCC Financing Statements” means, at any time of determination, all UCC financing
statements (including fixture filings) filed in the official records of the applicable
jurisdictions naming the Collateral Trustee, on behalf of the applicable Secured Debt
Representatives and Secured Debt Claimholders, as secured party, in order to perfect the Liens
granted under the Secured Debt Documents.



          “Original UCC Financing Statement Termination Conditions” means that (a) during the period
from the filing of any Duplicative UCC Financing Statements pursuant to Section 8.19 through and
including the date that is 91 days after the filing of such Duplicative UCC Financing
Statements, no Insolvency or Liquidation Proceeding shall have occurred, (b) the Company shall have
certified to the Collateral Trustee in writing, attaching search reports in all of the filing
jurisdictions, that there are no Liens on the Secured Debt Collateral other than Liens permitted
under the Secured Debt Documents and that no UCC financing statements (including fixture filings)
with respect to the Secured Debt Collateral (other than those related to Secured Debt Obligations)
have been filed in the applicable public records covering the Secured Debt Collateral other than
Permitted Prior Liens (as defined in the Indenture) and (c) the Collateral Trustee shall have
received an opinion of counsel for the Company as to the perfection of its liens by means of the
filing of Duplicative UCC Financing Statements, in substantially the form delivered in respect of
the Original UCC Financing Statements at the closing in respect of the Notes.



          “Parity Debt Claimholders” means, at any relevant time, the holders of Parity Lien Obligations
(as defined under the Collateral Trust Agreement) at that time, including any agents or trustees
under the Parity Lien Documents (as defined in the Collateral Trust Agreement).



          “Post-Petition Interest” means interest, fees, expenses and other charges that pursuant to the
Priority Lien Documents or the Secured Debt Documents, as the case may be, continue to accrue after
the commencement of any Insolvency or Liquidation Proceeding, whether or not such interest, fees,
expenses and other charges are allowed or allowable under the Bankruptcy Law or in any such
Insolvency or Liquidation Proceeding.



          “Pledged Collateral” has the meaning set forth in Section 5.4(b).



          “Priority Lien Agreement” has the meaning assigned to that term in the recitals to this
Agreement.



          “Priority Lien Claimholders” means, at any relevant time, the holders of Priority Lien
Obligations at that time, including any agents or trustees under the Priority Lien Documents.



          “Priority Lien Collateral” means all of the assets and property of any Grantor, whether real,
personal or mixed, with respect to which a Lien is granted as security for any Priority Lien
Obligations.



S-5









 





          “Priority Lien Documents” means the Priority Lien Agreement and the other [“Credit Documents”
(as defined in the Priority Lien Agreement)]6 and each of the other agreements,
documents and instruments providing for or evidencing any other Priority Lien Obligation, and any
other document or instrument executed or delivered at any time in connection with any Priority Lien
Obligations, including any security agreements, pledge agreements, collateral assignments, control
agreements or other grants or transfers for security executed by any Grantor as security for the
Priority Lien Obligations, as each may be amended, restated, supplemented, modified, renewed,
extended or refinanced from time to time.



          “Priority Lien Obligations” means all Obligations outstanding under the Priority Lien
Agreement and the other Priority Lien Documents and all Hedging Obligations of any Grantor incurred
to hedge or manage interest rate risk with respect to Priority Lien Obligations; provided, that
pursuant to the terms of the Priority Lien Documents, such Hedging Obligations are secured by a
Lien on all of the assets and properties that secure the Priority Lien Obligations in respect of
which such Hedging Obligations are incurred. Notwithstanding the foregoing, if the sum of: (1)
indebtedness for borrowed money constituting principal outstanding under the Priority Lien
Agreement and the other Priority Lien Documents; plus (2) the aggregate face amount of any
letters of credit issued but not reimbursed under the Priority Lien Agreement, is in excess of
$300,000,000 in the aggregate (the “Cap Amount”), then only that portion of such indebtedness and
such aggregate face amount of letters of credit up to and equal to such amount shall be included in
Priority Lien Obligations.



          “Priority Lien Representative” has the meaning assigned to that term in the preamble to this
Agreement.



          “Recovery” has the meaning set forth in Section 6.4.



          “Refinance” means, in respect of any indebtedness, to refinance, extend, renew, defease,
amend, modify, supplement, restructure, replace, refund or repay, or to issue other indebtedness,
in exchange or replacement for, such Indebtedness in whole or in part. “Refinanced” and
“Refinancing” shall have correlative meanings.



          “Secured Debt Claimholders” means, at any relevant time, the holders of Secured Debt
Obligations at that time, including any agents or trustees under the Secured Debt Documents.



          “Secured Debt Collateral” means all of the assets and property of any Grantor, whether real,
personal or mixed, with respect to which a Lien is granted as security for any Secured Debt
Obligations.



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





 




			
	6	 	Conform to appropriate terminology used in the Priority
Lien Agreement.





S-6









 





          “Secured Debt Documents” means the Collateral Trust Agreement, the Parity Lien Documents and
the Junior Lien Documents referred to in the Collateral Trust Agreement from time to time and each
of the other agreements, documents and instruments providing for or evidencing any other Secured
Debt Obligation, and any other document or instrument executed or delivered at any time in
connection with any Secured Debt Obligations, including any security agreements, pledge agreements,
collateral assignments, control agreements or other grants or transfers for security executed by
any Grantor as security for the Secured Debt Obligations, as each may be amended, restated,
supplemented, modified, renewed, extended or refinanced from time to time.



          “Secured Debt Obligations” means all Obligations outstanding under the Secured Debt Documents,
and all Hedging Obligations of any Grantor incurred to hedge or manage interest rate risk with
respect to Secured Lien Obligations; provided, that pursuant to the terms of the Secured Debt
Documents, such Hedging Obligations are secured by a Lien on all of the assets and properties that
secure the Secured Lien Obligations in respect of which such Hedging Obligations are incurred.



          “Secured Debt Representative” means each Junior Lien Representative or Parity Lien
Representative referred to in the Collateral Trust Agreement.



          “Series of Secured Debt” means, severally, each issue or series of Secured Debt Obligations
for which a single transfer register is maintained.



          “Standstill Period” has the meaning set forth in Section 3.1(a).



          “Subsidiary Guarantors” has the meaning assigned to that term in the preamble of this
Agreement.



          “UCC” means the Uniform Commercial Code as in effect from time to time in the State of New
York or when the context implies, the Uniform Commercial Code as in effect from time to time in any
other applicable jurisdiction.



          1.2 Terms Generally. The definitions of terms in this Agreement shall apply equally
to the singular and plural forms of the terms defined. Whenever the context may require, any
pronoun shall include the corresponding masculine, feminine and neuter forms. The words “include,”
“includes” and “including” shall be deemed to be followed by the phrase “without limitation.” The
word “will” shall be construed to have the same meaning and effect as the word “shall.” Unless the
context requires otherwise:



          (a) any definition of or reference to any agreement, instrument or other document herein shall
be construed as referring to such agreement, instrument or other document as amended, restated,
supplemented, modified, renewed, extended or refinanced from time to time;



          (b) any reference herein to any Person shall be construed to include such Person’s permitted
successors and assigns;



S-7









 





          (c) the words “herein,” “hereof” and “hereunder,” and words of similar import, shall be
construed to refer to this Agreement in its entirety and not to any particular provision hereof;



          (d) all references herein to Sections shall be construed to refer to Sections of this
Agreement; and



          (e) the words “asset” and “property” shall be construed to have the same meaning and effect
and to refer to any and all tangible and intangible assets and properties, including cash,
securities, accounts and contract rights.



          Notwithstanding anything to the contrary in this Agreement, any references contained herein to
any section, clause, paragraph, definition or other provision of the Collateral Trust Agreement
(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 June 5, 2009; provided,
that any reference to any such section, clause, paragraph, definition or other provision shall
refer to such section, clause, paragraph, definition or other provision of the Collateral Trust
Agreement (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 Collateral Trust Agreement
and (2) approved in writing by the Priority Lien Representative. Notwithstanding the foregoing,
whenever any term used in this Agreement is defined or otherwise incorporated by reference to the
Collateral Trust Agreement, such reference shall be deemed to have the same effect as if such
definition or term had been set forth herein in full.



          II. LIEN PRIORITIES.



          2.1 Relative Priorities. Notwithstanding the date, time, method, manner or order of
grant, attachment or perfection of any Liens securing the Secured Debt Obligations granted on the
Collateral or of any Liens securing the Priority Lien Obligations granted on the Collateral and
notwithstanding any provision of the UCC, or any other applicable law or the Priority Lien
Documents or the Secured Debt Documents or any defect or deficiencies in, or failure to perfect or
lapse in perfection of, the Liens securing the Priority Lien Obligations or Secured Debt
Obligations or any other circumstance whatsoever, the Collateral Trustee, on behalf of itself, the
Secured Debt and the Secured Debt Claimholders, hereby agrees that:



          (a) any Lien on the Collateral securing any Priority Lien Obligations now or hereafter held by
or on behalf of the Priority Lien Representative or any Priority Lien Claimholders or any agent or
trustee therefor, regardless of how acquired, whether by grant, possession, statute, operation of
law, subrogation or otherwise, shall be senior in all respects and prior to any Lien on the
Collateral securing any Secured Debt Obligations; and



          (b) any Lien on the Collateral securing any Secured Debt Obligations now or hereafter held by
or on behalf of the Collateral Trustee, any Secured Debt Representative or Secured Debt
Claimholders or any agent or trustee therefor regardless of how acquired, whether by grant,
possession, statute, operation of law, subrogation or otherwise, shall be junior and subordinate in
all respects to all Liens on the Collateral securing any Priority Lien Obligations. All Liens on
the Collateral securing any Priority Lien Obligations shall be and remain senior in



S-8









 







all respects and prior to all Liens on the Collateral securing any Secured Debt Obligations
for all purposes, whether or not such Liens securing any Priority Lien Obligations are subordinated
to any Lien securing any other obligation of the Company, any other Grantor or any other Person.



          2.2 Prohibition on Contesting Liens. Each of the Collateral Trustee, for itself and
on behalf of each Secured Debt Representative and Secured Debt Claimholder, and the Priority Lien
Representative, for itself and on behalf of each Priority Lien Claimholder, agrees that it will not
(and hereby waives any right to) contest or support any other Person in contesting, in any
proceeding (including any Insolvency or Liquidation Proceeding), the priority, validity, perfection
or enforceability of a Lien held by or on behalf of any of the Priority Lien Claimholders in the
Collateral or by or on behalf of any of the Secured Debt Claimholders in the Secured Debt
Collateral, as the case may be, or the provisions of this Agreement; provided that nothing in this
Agreement shall be construed to prevent or impair the rights of the Priority Lien Representative or
any Priority Lien Claimholder to enforce this Agreement, including the provisions of this Agreement
relating to the priority of the Liens securing the Priority Lien Obligations as provided in
Sections 2.1 and 3.1.



          2.3 No New Liens. So long as the Discharge of Priority Lien Obligations has not
occurred, whether or not any Insolvency or Liquidation Proceeding has been commenced by or against
the Company or any other Grantor, the parties hereto agree that the Company shall not, and shall
not permit any other Grantor to:



          (a) grant or permit any additional Liens on any asset or property to secure any Secured Debt
Obligation unless it has granted or concurrently grants a Lien on such asset or property to secure
the Priority Lien Obligations, the parties hereto agreeing that any such Lien shall be subject to
Section 2.1 hereof; or



          (b) grant or permit any additional Liens on any asset or property to secure any Priority Lien
Obligations unless it has granted or concurrently grants a Lien on such asset or property to secure
the Secured Debt Obligations, the parties hereto agreeing that any such Lien shall be subject to
Section 2.1 hereof;.


To the extent that the foregoing provision is not complied with for any reason, without limiting
any other rights and remedies available to the Priority Lien Representative and/or the Priority
Lien Claimholders, the Collateral Trustee, on behalf of Secured Debt Representatives and Secured
Debt Claimholders, agrees that any amounts received by or distributed to any of them pursuant to or
as a result of Liens granted in contravention of this Section 2.3 shall be subject to Section 4.2.




          2.4 Similar Liens. The parties hereto agree that it is their intention that the
Priority Lien Collateral and the Secured Debt Collateral be identical. In furtherance of the
foregoing and of Section 8.9, the parties hereto agree, subject to the other provisions of this
Agreement that, upon request by the Priority Lien Representative or the Collateral Trustee on
behalf of any Secured Debt Representative, to cooperate in good faith (and to direct their counsel
to cooperate in good faith) from time to time in order to determine the specific items included in
the Priority Lien Collateral and the Secured Debt Collateral and the steps taken to perfect their



S-9









 







respective Liens thereon and the identity of the respective parties obligated under the
Priority Lien Documents and the Secured Debt Documents.



          2.5 Collateral Trust Agreement: The Collateral Trustee agrees, on behalf of itself,
each Secured Debt Representative and each Secured Debt Claimholder, that the provisions of the
Collateral Trust Agreement shall govern the rights and obligations of the Secured Debt
Representatives and the Secured Debt Claimholders as among themselves, notwithstanding anything in
this Agreement to the contrary.



          III. ENFORCEMENT.



          3.1 Exercise of Remedies — Restrictions on Collateral Trustee, Secured Debt
Representatives and Secured Debt Claimholders.



          (a) Until the Discharge of Priority Lien Obligations has occurred, whether or not any
Insolvency or Liquidation Proceeding has been commenced by or against the Company or any other
Grantor, the Collateral Trustee agrees, on behalf of itself and each Secured Debt Representative
and Secured Debt Claimholder, that neither the Collateral Trustee nor any Secured Debt
Representative or Secured Debt Claimholder:




(1) will exercise or seek to exercise any rights or remedies with respect to any Collateral
(including the exercise of any right of setoff or any right under any lockbox agreement,
account control agreement, landlord waiver or bailee’s letter or similar agreement or
arrangement to which the Collateral Trustee, any Secured Debt Representative or any Secured
Debt Claimholder is a party) or institute any action or proceeding with respect to such
rights or remedies (including any action of foreclosure); provided, however,
that the Collateral Trustee or any Secured Representative or Secured Debt Claimholder may
exercise any or all such rights or remedies (to the extent permitted under the Collateral
Trust Agreement) after a period of at least 180 days has elapsed since the date on which the
Priority Lien Representative received notice from the Collateral Trustee that (i) Secured
Debt Defaults have occurred and are then continuing with respect to one or more Series of
Secured Debt that could, taken as a whole, unilaterally direct the Collateral Agent to
exercise any rights or remedies with respect to any Collateral or institute any action or
proceeding with respect to such rights or remedies by the requisite Secured Debt
Claimholders in accordance with the Collateral Trust Agreement and (ii) each such Series of
Secured Debt has accelerated and demanded the repayment of all the principal amount of the
Secured Debt Obligations related to such Series of Secured Debt in accordance with the
applicable Secured Debt Documents (the “Standstill Period”);




(2) will exercise any rights or remedies with respect to the Collateral if the Priority Lien
Representative or Priority Lien Claimholders shall have commenced and be diligently pursuing
the exercise of their rights or remedies with respect to all or any material portion of the
Collateral (prompt notice of such exercise to be given to the Collateral Trustee and this
clause (2) to apply notwithstanding the expiration of the Standstill Period or the prior
commencement of such exercise by the Collateral Trustee, any Secured Debt Representative or
any Secured Debt Claimholder);



S-10









 






(3) will contest, protest or object to any foreclosure proceeding or action brought by the
Priority Lien Representative or any Priority Lien Claimholder or any other exercise by the
Priority Lien Representative or any Priority Lien Claimholder of any rights and remedies
relating to the Collateral, whether under the Priority Lien Documents or otherwise; and




(4) subject to their rights under clause (a)(1) above and except as may be permitted in
Section 3.1(c), will object to the forbearance by the Priority Lien Representative or the
Priority Lien Claimholders from bringing or pursuing any foreclosure proceeding or action or
any other exercise of any rights or remedies relating to the Collateral,


provided in each case with respect to clause (1), (2), (3) and (4) above, the Liens granted
to secure the Secured Debt Obligations of the Secured Debt Claimholders shall attach to any
proceeds resulting from actions taken by the Priority Lien Collateral Agent or any Priority Lien
Claimholder in accordance with this Agreement, subject to the relative priorities described in
Section 2.




          (b) Until the Discharge of Priority Lien Obligations has occurred, whether or not any
Insolvency or Liquidation Proceeding has been commenced by or against the Company or any other
Grantor, subject to Sections 3.1(a) and (c) and Section 6.3(b)(1), the Priority Lien Representative
and the Priority Lien Claimholders shall have the exclusive right to enforce rights, exercise
remedies (including set-off, recoupment and the right to credit bid their debt) and, subject to
Section 5.1, to make determinations regarding the release, disposition, or restrictions, in each
case with respect to the Collateral, without any consultation with or the consent of the Collateral
Trustee, any Secured Debt Representative or any Secured Debt Claimholder; provided,
however, that the Lien securing the Secured Debt Obligations shall remain on the proceeds
(other than those properly applied to the Priority Lien Obligations) of such Collateral released or
disposed of, subject to the relative priorities described in Section 2. In exercising rights and
remedies with respect to the Collateral, the Priority Lien Representative and the Priority Lien
Claimholders may enforce the provisions of the applicable Priority Lien Documents and exercise
remedies thereunder, all in such order and in such manner as they may determine in their sole
discretion. Such exercise and enforcement shall include the rights of an agent appointed by them
to sell or otherwise dispose of the Collateral upon foreclosure, to incur expenses in connection
with such sale or disposition, and to exercise all the rights and remedies of a secured creditor
under the UCC and of a secured creditor under the Bankruptcy Laws of any applicable jurisdiction.



          (c) Notwithstanding the foregoing, the Collateral Trustee, any Secured Debt Representative and
any Secured Debt Claimholder may:




(1) file a claim or statement of interest with respect to the Secured Debt Obligations;
provided that an Insolvency or Liquidation Proceeding has been commenced by or
against the Company or any other Grantor;




(2) take any action (not adverse to the priority status of the Liens on the Collateral
securing the Priority Lien Obligations, or the rights of the Priority Lien Representative or



S-11









 







any Priority Lien Claimholder to exercise remedies in respect thereof) in order to create,
perfect, preserve or protect its Lien on any of the Collateral;




(3) file any necessary responsive or defensive pleadings in opposition to any motion, claim,
adversary proceeding or other pleading made by any Person objecting to or otherwise seeking
the disallowance of the claims of the Collateral Trustee, the Secured Debt Representative or
the Secured Debt Claimholders, including any claims secured by the Collateral, if any, in
each case in accordance with the terms of this Agreement;




(4) file any pleadings, objections, motions or agreements which assert rights or interests
that are available to unsecured creditors of the Grantors arising under either any
Insolvency or Liquidation Proceeding or applicable non-bankruptcy law, in each case not
inconsistent with the terms of this Agreement;




(5) vote on any plan of reorganization, file any proof of claim, make other filings and make
any arguments and motions that are, in each case, in accordance with the terms of this
Agreement, with respect to the Secured Debt Obligations and the Collateral;




(6) exercise any of its rights or remedies with respect to any of the Collateral after the
termination of the Standstill Period to the extent permitted by Section 3.1(a); and




(7) make a cash bid on all or any portion of the Collateral in any foreclosure proceeding or
action.



          The Collateral Trustee, on behalf itself and each Secured Debt Representative and Secured Debt
Claimholder, agrees that none of them will take or receive any Collateral or any proceeds of such
Collateral in connection with the exercise of any right or remedy (including set-off and
recoupment) with respect to any Collateral in its capacity as a creditor in violation of this
Agreement. Without limiting the generality of the foregoing, unless and until the Discharge of
Priority Lien Obligations has occurred, except as expressly provided in Sections 3.1(a), 6.3(b)(1)
and this Section 3.1(c), the sole right of the Collateral Trustee and any Secured Debt
Representative or Secured Debt Claimholder with respect to the Collateral is to hold a Lien on the
Collateral pursuant to the applicable Secured Debt Documents for the period and to the extent
granted therein and to receive a share of the proceeds thereof, if any, after the Discharge of
Priority Lien Obligations has occurred.



          (d) Subject to Sections 3.1(a) and (c) and Section 6.3(b)(1):




(1) the Collateral Trustee, on behalf of itself and each Secured Debt Representative and
Secured Debt Claimholder, agrees that none of them will take any action that would hinder
any exercise of remedies under the Priority Lien Documents or that is otherwise prohibited
hereunder, including any sale, lease, exchange, transfer or other disposition of any
Collateral, whether by foreclosure or otherwise;




(2) the Collateral Trustee, on behalf of itself and each Secured Debt Representative and
Secured Debt Claimholder, hereby waives any and all rights the Collateral Trustee, the
Secured Debt Representatives and the respective Secured Debt Claimholders, as applicable,
may have as a junior lien creditor or otherwise to object to the manner in



S-12









 







which the Priority Lien Representative or the Priority Lien Claimholders seek to enforce or
collect the Priority Lien Obligations or the Liens securing the Priority Lien Obligations
granted in any of the Priority Lien Documents or undertaken in accordance with this
Agreement, regardless of whether any action or failure to act by or on behalf of the
Priority Lien Representative or Priority Lien Claimholders is adverse to the interests of
the Secured Debt Claimholders; and




(3) the Collateral Trustee, on behalf of itself and each Secured Debt Representative and
Secured Debt Claimholder, hereby acknowledges and agrees that no covenant, agreement or
restriction contained in any Secured Debt Document (other than this Agreement) shall be
deemed to restrict in any way the rights and remedies of the Priority Lien Representative or
the Priority Lien Claimholders with respect to the enforcement of the Liens on the
Collateral as set forth in this Agreement and the Priority Lien Documents.



          (e) Except as otherwise specifically set forth in Sections 3.1(a) and (d) and 3.4, and
subject, as among themselves, to the provisions of the Collateral Trust Agreement, the Collateral
Trustee, the Secured Debt Representatives and the Secured Debt Claimholders may exercise rights and
remedies as unsecured creditors against the Company or any other Grantor that has guaranteed or
granted Liens to secure the Secured Debt Obligations in accordance with the terms of the Secured
Debt Documents and applicable law; provided, however, that in the event that the
Collateral Trustee, any Secured Debt Representative or any Secured Debt Claimholder becomes a
judgment Lien creditor in respect of Collateral as a result of its enforcement of its rights as an
unsecured creditor with respect to the Secured Debt Obligations, such judgment Lien shall be
subject to the terms of this Agreement for all purposes (including in relation to the Priority Lien
Obligations) as the other Liens securing the Secured Debt Obligations are subject to this
Agreement.



          (f) Nothing in this Agreement shall prohibit the receipt by the Collateral Trustee, any
Secured Debt Representative or any Secured Debt Claimholder of the required payments of interest,
principal and other amounts owed in respect of the Secured Debt Obligations, so long as such
receipt is not the direct or indirect result of the exercise by Collateral Trustee or any Secured
Debt Representative or Secured Debt Claimholder of rights or remedies as a secured creditor
(including set-off and recoupment) or enforcement in contravention of this Agreement of any Lien
held by any of them. Nothing in this Agreement impairs or otherwise adversely affects any rights
or remedies the Priority Lien Representative or the Priority Lien Claimholders may have against the
Grantors under the Priority Lien Documents.



          3.2 Actions Upon Breach. Each of the Priority Lien Representative and the Collateral
Trustee may demand specific performance of this Agreement. The Priority Lien Representative, on
behalf of itself, the Secured Debt Representatives and the Priority Lien Claimholders, and the
Collateral Trustee, on behalf of itself and the Secured Debt Claimholders, hereby irrevocably waive
any defense based on the adequacy of a remedy at law and any other defense which might be asserted
to bar the remedy of specific performance in any action which may be brought by the Priority Lien
Representative or the Priority Lien Claimholders, on the one hand, or the Collateral Trustee or the
Secured Debt Claimholders, on the other hand.



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          IV. PAYMENTS.



          4.1 Application of Proceeds. So long as the Discharge of Priority Lien Obligations
has not occurred, whether or not any Insolvency or Liquidation Proceeding has been commenced by or
against the Company or any other Grantor, all Collateral or proceeds thereof received in connection
with the sale or other disposition of, or collection on, such Collateral upon the exercise of
remedies by the Priority Lien Representative or Priority Lien Claimholders, shall be applied by the
Priority Lien Representative to the Priority Lien Obligations in such order as specified in the
relevant Priority Lien Documents. Upon the Discharge of Priority Lien Obligations, the Priority
Lien Representative shall deliver to the Collateral Trustee any Collateral and proceeds of
Collateral held by it in the same form as received, with any necessary endorsements or as a court
of competent jurisdiction may otherwise direct, to be applied by the Collateral Trustee or any
Secured Debt Representative in such order as specified in the Collateral Trust Agreement.



          4.2 Payments Over in Violation of Agreement.



          (a) So long as the Discharge of Priority Lien Obligations has not occurred, whether or not any
Insolvency or Liquidation Proceeding has been commenced by or against the Company or any other
Grantor, any Collateral or proceeds thereof received by the Collateral Trustee, any Secured Debt
Representative or any Secured Debt Claimholder in connection with the exercise of any right or
remedy (including set-off or recoupment) in contravention of this Agreement shall be segregated and
held in trust and forthwith paid over to the Priority Lien Representative in the same form as
received, with any necessary endorsements or as a court of competent jurisdiction may otherwise
direct. The Priority Lien Representative is hereby authorized to make any such endorsements as
agent for the Collateral Trustee, the Secured Debt Representative or the applicable Secured Debt
Claimholder. This authorization is coupled with an interest and is irrevocable until both the
Discharge of Priority Lien Obligations has occurred.



          (b) So long as the Discharge of Priority Lien Obligations has not occurred, if in any
Insolvency or Liquidation Proceeding the Collateral Trustee or any Secured Debt Representative or
Secured Debt Claimholder shall receive any distribution of money or other property in respect of
the Collateral, such money or other property shall be segregated and held in trust and forthwith
paid over to the Priority Lien Representative for the benefit of the Priority Lien Claimholders in
the same form as received, with any necessary endorsements. Any Lien received by the Collateral
Trustee or any Secured Debt Representative or Secured Debt Claimholder in any Insolvency or
Liquidation Proceeding shall be subject to the terms of this Agreement.



          4.3 Application of Payments. Subject to the other terms of this Agreement, all
payments received by the Priority Lien Representative or the Priority Lien Claimholders may be
applied, reversed and reapplied, in whole or in part, to the Priority Lien Obligations to the
extent provided for in the Priority Lien Documents.



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          V. OTHER AGREEMENTS.



          5.1 Releases.



          (a) If in connection with the exercise of the Priority Lien Representative’s and Priority Lien
Claimholders’ remedies in respect of any Collateral, the Priority Lien Representative, for itself
or on behalf of any of the Priority Lien Claimholders, releases any of its Liens on any part of the
Collateral or releases any Guarantor from its obligations under its guaranty of the Priority Lien
Obligations in connection with the sale of the stock, or substantially all of the assets, of such
Guarantor, then the Liens, if any, of the Collateral Trustee, the Secured Debt Representatives and
the Secured Debt Claimholders, on such Collateral, and the obligations of such Guarantor under its
guaranties of the Secured Debt Obligations, shall be automatically, unconditionally and
simultaneously released. The Collateral Trustee, for itself on behalf of the Secured Debt
Representatives and Secured Debt Claimholders, promptly shall execute and deliver to the Priority
Lien Representative or such Grantor such termination statements, releases and other documents as
the Priority Lien Representative or such Grantor may request to effectively confirm such release.



          (b) If in connection with any sale, lease, exchange, transfer or other disposition of any
Collateral (collectively, a “Disposition”) permitted under the terms of the Priority Lien Documents
and the Secured Debt Documents (other than in connection with the exercise of the Priority Lien
Representative’s remedies in respect of Collateral which shall be governed by Section 5.1(a)
above), the Priority Lien Representative, for itself and/or on behalf of any of the Priority Lien
Claimholders releases any Guarantor from its obligations under its guaranty of the Priority Lien
Obligations in connection with the sale of the stock, or substantially all of the assets of, such
Guarantor or releases its Liens on any part of the Collateral, in each case other than (A) in
connection with the Discharge of Priority Lien Obligations (in which case the Lien of the
Collateral Trustee shall attach to proceeds of any Collateral as set forth in Section 3.1(b)) and
(B) after the occurrence and during the continuance of a Secured Debt Default in respect any Series
of Secured Debt Obligations, then the Liens, if any, of the Collateral Trustee and each Secured
Debt Representative and Secured Debt Claimholder on such Collateral shall be automatically,
unconditionally and simultaneously released. The Collateral Trustee, for itself and/or on behalf
of any Secured Debt Representative or Secured Debt Claimholder, promptly shall execute and deliver
to the Priority Lien Representative or such Grantor such termination statements, releases and other
documents as the Priority Lien Representative or such Grantor may request to effectively confirm
such release.



          (c) Until the Discharge of Priority Lien Obligations has occurred, the Collateral Trustee, on
behalf of itself and each Secured Debt Representative and Secured Debt Claimholder, hereby
irrevocably constitutes and appoints the Priority Lien Representative and any of its officers or
agents, with full power of substitution, as its true and lawful attorney-in-fact with full
irrevocable power and authority in the place and stead of the Collateral Trustee and each Secured
Debt Representative and Secured Debt Claimholder, whether in the Priority Lien Representative’s
name or, at the option of the Priority Lien Representative, in the Collateral Trustee’s, any
Secured Debt Representative’s or any Secured Debt Claimholder’s own name, from time to time in the
Priority Lien Representative’s discretion, for the purpose of carrying out the terms of this
Section 5.1, to take any and all appropriate action and to execute any and all



S-15









 







documents and instruments which may be necessary to accomplish the purposes of this Section
5.1, including any endorsements or other instruments of transfer or release.



          (d) Until the Discharge of Priority Lien Obligations occurs, to the extent that the Priority
Lien Collateral Agent or the Priority Lien Claimholders (i) have released any Lien on Collateral or
any Guarantor from its obligation under its guaranty and any such Liens or guaranty are later
reinstated or (ii) obtain any new Liens or additional guarantees from any Guarantor, then the
Secured Debt Collateral Agent, for itself and for the Secured Debt Claimholders, shall be granted a
Lien on any such Collateral, subject to the lien subordination provisions of this Agreement, and an
additional guaranty, as the case may be.



          (e) In the event that the principal amount of funded Priority Lien Obligations plus
the aggregate face amount of letters of credit, if any, issued under the Priority Lien Credit
Agreement and not reimbursed plus the aggregate principal amount of unfunded commitments
under the Priority Lien Credit Agreement (collectively, the “Priority Lien Obligations Amount”), at
any date of determination no longer constitute at least $125,000,000, then any agreement provided
for in Sections 3.1 (a), (b) and (c) and 5.1(a) and (b) (except for releases given in connection
with a Disposition permitted under the Priority Lien Loan Documents and the Secured Debt Loan
Documents) shall require an Act of Secured Debtholders under and as defined in the Collateral Trust
Agreement, and the provisions of Article VI shall no longer be effective.



          5.2 Insurance. Unless and until the Discharge of Priority Lien Obligations has
occurred, subject to the terms of, and the rights of the Grantors under, the Priority Lien
Documents, (i) the Priority Lien Representative and the Priority Lien Claimholders shall have the
sole and exclusive right to adjust settlement for any insurance policy covering the Collateral in
the event of any loss thereunder and to approve any award granted in any condemnation or similar
proceeding (or any deed in lieu of condemnation) affecting the Collateral; (ii) all proceeds of any
such policy and any such award (or any payments with respect to a deed in lieu of condemnation) if
in respect to the Collateral and to the extent required by the Priority Lien Documents shall be
paid to the Priority Lien Representative for the benefit of the Priority Lien Claimholders pursuant
to the terms of the Priority Lien Documents (including, without limitation, for purposes of cash
collateralization of letters of credit) and thereafter, to the extent no Priority Lien Obligations
are outstanding, and subject to the rights of the Guarantors under the Secured Debt Documents, to
the Collateral Trustee for the benefit of the Secured Debt Claimholders to the extent required
under the Secured Debt Documents and then, to the extent no Secured Debt Obligations are
outstanding, as may be required under the Collateral Trust Agreement or applicable law, and (iii)
if the Collateral Trustee or any Secured Debt Representative or any Secured Debt Claimholder shall,
at any time, receive any proceeds of any such insurance policy or any such award or payment in
contravention of this Agreement, it shall segregate and hold in trust and forthwith pay such
proceeds over to the Priority Lien Representative in accordance with the terms of Section 4.2.



S-16









 





          5.3 Amendments to Priority Lien Documents and Secured Debt Documents; Refinancing.
The Priority Lien Documents and Secured Debt Documents may be amended, supplemented or otherwise
modified in accordance with their terms and, in the case of the Secured Debt Documents, the terms
of the Collateral Trust Agreement, and the Priority Lien Obligations and Secured Debt Obligations
may be Refinanced, in each case, without notice to, or the consent (except to the extent a consent
is required to permit the amendment or Refinancing transaction under any Priority Lien Document or
any Secured Debt Document) of the Priority Lien Representative, the Priority Lien Claimholders, the
Collateral Trustee, the Secured Debt Representatives or the Secured Debt Claimholders, as the case
may be, all without affecting the Lien subordination or other provisions of this Agreement,
provided, however, that (i) in the case of a Refinancing of the Priority Lien
Obligations, the holders of such Refinancing debt (or an agent or trustee on their behalf) bind
themselves to the terms of this Agreement by execution of an Intercreditor Agreement Joinder and
(ii) in the case of a Refinancing of the Secured Debt Obligations, the holders of such Refinancing
debt (or an agent or trustee on their behalf) bind themselves to the terms of this agreement by the
execution of an Intercreditor Agreement Joinder and a joinder agreement to the Collateral Trust
Agreement in form and substance reasonably satisfactory to the Priority Lien Representative
evidencing such Person’s acknowledgment and agreement to be bound by the terms hereof. The Company
shall require that any Secured Debt Documents executed in connection with a Refinancing of Secured
Debt Obligations contain include a Lien Sharing and Priority Confirmation.



          5.4 Gratuitous Bailee for Perfection.



          (a) From and after the date of this Agreement, until the Discharge of the Priority Lien
Obligations has occurred, the Priority Lien Representative shall possess or otherwise control the
Pledged Collateral in order to perfect its Lien thereon on a first priority basis under the UCC.
In furtherance of the foregoing, the Collateral Trustee, on behalf of the Secured Debt
Representatives and the Secured Debt Claimholders, agrees that each of them shall take such actions
and execute and deliver such documents, agreements and endorsements (including any amendments to
existing documents and agreements) as may be requested in the reasonable discretion of the Priority
Lien Representative in order that the Priority Lien Representative may obtain possession or control
of the Pledged Collateral on a first priority basis.



          (b) The Priority Lien Representative agrees to hold that part of the Collateral that is in its
possession or control (or in the possession or control of its agents or bailees) to the extent that
possession or control thereof is taken to perfect a Lien thereon under the UCC (such Collateral
being the “Pledged Collateral”) as collateral agent for the Priority Lien Claimholders and as
gratuitous bailee for the Collateral Trustee, the Secured Debt Representatives and the Secured Debt
Claimholders (such bailment being intended, among other things, to satisfy the requirements of
Sections 8-106(d)(3), 8-301(a)(2) and 9-313(c) of the UCC) and an assignee solely for the purpose
of perfecting the security interest granted under the Priority Lien Documents and the Secured Debt
Documents, as applicable, subject to the terms and conditions of this Section 5.4. Solely with
respect to any deposit accounts under the control (within the meaning of Section 9-104 of the UCC)
of the Priority Lien Representative, the Priority Lien Representative agrees to also hold control
over such deposit accounts as gratuitous agent and



S-17









 







gratuitous bailee for the Collateral Trustee, the Secured Debt Representatives and the Secured
Debt Claimholders, subject to the terms and conditions of this Section 5.4.



          (c) No Person shall have any obligation whatsoever to any other Person to ensure that the
Pledged Collateral is genuine or owned by any of the Grantors or to preserve rights or benefits of
any Person except as expressly set forth in this Section 5.4. The duties or responsibilities of
the Priority Lien Representative under this Section 5.4 shall be limited solely to holding the
Pledged Collateral as gratuitous bailee (and with respect to deposit accounts, gratuitous agent) in
accordance with this Section 5.4 and delivering the Pledged Collateral upon a Discharge of Priority
Lien Obligations, as provided in paragraph (e) below.



          (d) The Priority Lien Representative shall not have by reason of the Priority Lien Documents,
the Secured Debt Documents, this Agreement or any other document a fiduciary relationship in
respect of any Priority Lien Claimholder, the Collateral Trustee, any Secured Debt Representative
or any Secured Debt Claimholder, and the Collateral Trustee, on behalf of itself and each Secured
Debt Representative and Secured Debt Claimholder, hereby waives and releases the Priority Lien
Representative from all claims and liabilities arising pursuant to the Priority Lien
Representative’s role under this Section 5.4 as gratuitous bailee and gratuitous agent with respect
to the Collateral, except claims and liabilities arising from (i) the Priority Lien
Representative’s gross negligence or willful misconduct or (ii) the Priority Lien Representative’s
failure to comply with the provisions of Section 2.4 and Section 5.4(e). It is understood and
agreed that the interests of the Priority Lien Representative, the Collateral Trustee, the Secured
Debt Representatives and the Secured Debt Claimholders may differ and the Priority Lien
Representative shall be fully entitled to act in its own interest without taking into account the
interests of the Collateral Trustee, the Secured Debt Representatives or the Secured Debt
Claimholders.



          (e) Upon the Discharge of Priority Lien Obligations the Priority Lien Representative shall, at
the expense of the Company, deliver the remaining Pledged Collateral (if any) together with any
necessary endorsements (such endorsement shall be without recourse and without any representation
or warranty), first, to the Collateral Trustee to the extent the Secured Debt Obligations
which are Secured by such Pledged Collateral remain outstanding, and second, to the Company
or as may otherwise be required by law or judicial order (in each case, so as to allow such Person
to obtain possession or control of such Pledged Collateral). The Priority Lien Representative, at
the expense of the Company, further agrees to take all other action reasonably requested by the
Collateral Trustee acting on behalf of the Secured Debt Claimholders in connection with the
Collateral Trustee obtaining for the benefit of the Secured Debt Claimholders a first priority
interest in the Collateral or as a court of competent jurisdiction may otherwise direct.



          (f) Subject to the terms of this Agreement, so long as the Discharge of Priority Lien
Obligations has not occurred, the Priority Lien Representative shall be entitled to deal with the
Pledged Collateral or other Collateral within its “control” in accordance with the terms of this
Agreement and other Priority Lien Documents as if the Liens (if any) of the Collateral Trustee, the
Secured Debt Representatives and Secured Debt Claimholders in such Collateral did not exist.



S-18









 





          5.5 When Discharge of Priority Lien Obligations Deemed to Not Have Occurred; Refinancing
of Priority Lien Obligations.



          (a) If, concurrently with the Discharge of Priority Lien Obligations, the Company enters into
any Refinancing thereof, which Refinancing is permitted by the Secured Debt Documents, then such
Discharge of Priority Lien Obligations shall automatically be deemed not to have occurred for all
purposes of this Agreement and, from and after the date on which a notice is delivered to the
Collateral Trustee in accordance with clause (b) of this Section 5.5, the obligations under such
Refinancing shall automatically be treated as Priority Lien Obligations for all purposes of this
Agreement, including for purposes of the Lien priorities and rights in respect of Collateral set
forth herein, and the Priority Lien Representative under such new Priority Lien Documents shall be
the Priority Lien Representative for all purposes of this Agreement.



          (b) Upon the Collateral Trustee’s receipt of a notice from the New Agent (as defined below)
and the Company stating that the Company has entered into new Priority Lien Documents (which notice
shall provide the identity of the new agent for such facility, such agent, the “New Agent”), such
New Agent shall automatically be treated as the Priority Lien Representative for all purposes of
this Agreement. The Priority Lien Representative and the Collateral Trustee shall promptly (a)
enter into such documents and agreements (including amendments or supplements to this Agreement) as
the Company or such New Agent shall reasonably request in order to provide to the New Agent the
rights contemplated hereby, in each case consistent in all material respects with the terms of this
Agreement and (b) deliver, to the extent contemplated by this Agreement, to the New Agent any
Pledged Collateral held by it together with any necessary endorsements (or otherwise allow the New
Agent to obtain control of such Pledged Collateral in order to perfect its Lien thereon on a first
priority basis under the UCC). The New Agent shall agree pursuant to the Intercreditor Agreement
Joinder addressed to the Collateral Trustee to be bound by the terms of this Agreement. If the new
Priority Lien Obligations under the new Priority Lien Documents are secured by assets of the
Guarantors constituting Collateral that do not also secure the Secured Debt Obligations, then the
Secured Debt Obligations shall be secured at such time by a second priority Lien on such assets to
the same extent provided in the Priority Lien Collateral Documents governing such new Priority Lien
Debt and this Agreement.



          5.6 Successor Agents. If any successor Priority Lien Representative or successor
Collateral Trustee is elected or appointed pursuant to the terms of the Priority Lien Documents or
the Secured Debt Documents, as applicable, then such successor Priority Lien Representative or
successor Collateral Trustee, as applicable, shall automatically be treated as the Priority Lien
Representative or Collateral Trustee, as applicable, for all purposes of this Agreement. The
successor Priority Lien Representative or successor Collateral Trustee, as applicable, shall enter
into such documents and agreements (including amendments or supplements to this Agreement) as the
Company, the existing Priority Lien Representative or the existing Collateral Trustee shall
reasonably request in order to provide to the successor Priority Lien Representative or successor
Collateral Trustee, as applicable, the rights contemplated hereby, in each case consistent in all
material respects with the terms of this Agreement. The successor Priority Lien Representative or
successor Collateral Trustee, as applicable, shall agree pursuant to the Intercreditor Agreement
Joinder addressed to the existing Priority Lien



S-19









 







Representative or existing Collateral Trustee, as applicable, to be bound by the terms of this
Agreement.



          5.7 Purchase Right. Without prejudice to the enforcement of the Priority Lien
Representative’s and the Priority Lien Claimholders’ remedies, the Priority Lien Claimholders agree
that at any time during the period of 90 Business Days following the earliest of (a) an
acceleration of the Priority Lien Obligations, (b) a payment event of default in respect of the
Priority Lien Obligations that has occurred and continued for a period of 60 days or more and (c)
the commencement of any Insolvency or Liquidation Proceeding, the Secured Debt Claimholders or the
percentage of any Series of them required to take action under the relevant Secured Debt Documents
shall have the option to purchase, and the Priority Lien Claimholders hereby irrevocably agree to
offer to the Parity Lien Claimholders during such period, the entire aggregate amount of
outstanding Priority Lien Obligations (including unfunded commitments under the Priority Lien
Agreement) at par plus accrued interest plus out-of-pocket expenses that at such time are accrued
and unpaid but would be, under the terms of the relevant Priority Debt Document, reimbursable by
the Company, without warranty or representation or recourse, on a pro rata basis across Parity Lien
Claimholders. If the Parity Debt Claimholders shall exercise such option within ninety (90)
Business Days following the first event giving rise thereto, the parties shall endeavor to close
promptly thereafter. If the Parity Lien Claimholders elect to exercise their option pursuant to
this Section 5.7, it shall be exercised pursuant to documentation mutually acceptable to each of
the Priority Lien Representative and the applicable Secured Debt Representatives. If the Parity
Lien Claimholders do not exercise such option within the required timeframe, the Priority Lien
Claimholders shall have no further obligations pursuant to this Section 5.7.



          VI. INSOLVENCY OR LIQUIDATION PROCEEDINGS.



          6.1 Finance and Sale Issues. Until the Discharge of Priority Lien Obligations has
occurred, if the Company or any other Grantor shall be subject to any Insolvency or Liquidation
Proceeding and the Priority Lien Representative shall desire to permit the use of “Cash Collateral”
(as such term is defined in Section 363(a) of the Bankruptcy Code), on which a Lien has been
granted to the Priority Lien Representative pursuant to the Priority Lien Documents or to permit
the Company or any other Grantor to obtain financing, whether from the Priority Lien Claimholders
or any other Person under Section 364 of the Bankruptcy Code or any similar Bankruptcy Law (“DIP
Financing”), then the Collateral Trustee, on behalf of itself and each Secured Debt Representative
and Secured Debt Claimholder, agrees that neither the Collateral Trustee nor any Secured Debt
Representative or any Secured Debt Claimholder will raise any objection to such Cash Collateral use
or DIP Financing so long as such Cash Collateral use or DIP Financing meets the following
requirements: (i) the aggregate principal amount of the DIP Financing plus the aggregate
outstanding principal amount of Priority Lien Obligations plus the aggregate face amount
of any letters of credit issued and not reimbursed under the Priority Lien Agreement does not
exceed $360,000,000, (ii) the Collateral Trustee, each Secured Debt Representative and each Secured
Debt Claimholder retain the right to object to any ancillary agreements or arrangements regarding
the Cash Collateral use or the DIP Financing that are materially prejudicial to their interests in
the Collateral, and (iii) the terms of the DIP Financing (a) do not compel the Company to seek
confirmation of a specific plan of reorganization for which all or substantially all of the
material terms are set forth in the DIP



S-20









 







Financing documentation or a related document and (b) do not expressly require the liquidation
of the Collateral prior to a default under the DIP Financing documentation or Cash Collateral
order. To the extent the Liens on the Collateral are subordinated to or pari passu with such DIP
Financing, the Collateral Trustee and each Secured Debt Representative and Secured Debt Claimholder
will subordinate any Liens in the Collateral to the Liens securing such DIP Financing which meets
the requirements of clauses (i) through (iii) above (and all Obligations relating thereto) and will
not request adequate protection or any other relief in connection therewith (except, as expressly
agreed by the Priority Lien Representative or to the extent permitted by Section 6.3).



          6.2 Relief from the Automatic Stay. Until the Discharge of Priority Lien Obligations
has occurred, the Collateral Trustee on behalf of itself and each Secured Debt Representative and
Secured Debt Claimholder, agrees that none of them shall seek (or support any other Person seeking)
relief from the automatic stay or any other stay in any Insolvency or Liquidation Proceeding in
respect of the Collateral, without the prior written consent of the Priority Lien Representative,
unless a motion for adequate protection permitted under Section 6.3 has been denied by the
Bankruptcy Court.



          6.3 Adequate Protection.



          (a) The Collateral Trustee, on behalf of itself and each Secured Debt Representative and
Secured Debt Claimholders, agrees that none of them shall contest (or support any other Person
contesting):




(1) any request by the Priority Lien Representative or any Primary Lien Claimholders for
adequate protection with respect to the Collateral; or




(2) any objection by the Priority Lien Representative or any Primary Lien Claimholders to
any motion, relief, action or proceeding based on the Priority Lien Representative or the
Priority Lien Claimholders claiming a lack of adequate protection with respect to the
Collateral.



          (b) Notwithstanding the foregoing provisions in this Section 6.3, in any Insolvency or
Liquidation Proceeding:





          (1) if the Priority Lien Claimholders (or any subset thereof) are granted adequate
protection with respect to the Collateral in the form of additional collateral (even if such
collateral is not of a type which would otherwise have constituted Collateral) in connection
with any Cash Collateral use or DIP Financing, then the Collateral Trustee, on behalf of
itself and each Secured Debt Representative and Secured Debt Claimholder, may seek or
request adequate protection with respect to their interests in such Collateral in the form
of a Lien (which shall be subject to the provisions of the Collateral Trust Agreement,
including with respect to matters of ranking and the order of application of the proceeds
from the enforcement of such Lien as between Secured Debt Claimholders) on such additional
collateral, which Lien will be subordinated to the Liens securing the Priority Lien
Obligations and such Cash Collateral use or DIP Financing



S-21









 







(and all Obligations relating thereto) on the same basis as the other Liens of the
Collateral Trustee on Collateral; and




          (2) if the Collateral Trustee, on behalf of the Secured Debt Representatives and the
Secured Debt Claimholders, seeks or requests adequate protection in respect of Secured Debt
Obligations and such adequate protection is granted in the form of additional collateral or
replacement Liens on the Collateral, such adequate protection shall be permitted only so
long as adequate protection for the Priority Lien Obligations, the Priority Lien
Representative, on behalf of the Priority Lien Claimholders, is also granted a senior Lien
on such additional collateral or senior replacement Liens on the Collateral, as the case may
be. Except as otherwise expressly set forth in Section 6.1 or in connection with the
exercise of remedies with respect to the Collateral, nothing herein shall limit the rights
of the Collateral Trustee or the Secured Debt Claimholders from seeking adequate protection
with respect to their rights in the Collateral in any Insolvency or Liquidation Proceeding
(including adequate protection in the form of a cash payment, periodic cash payments or
otherwise).


If the Collateral Trustee or any Secured Debt Representative or Secured Debt Claimholder receives
post-petition interest and/or adequate protection payments in an Insolvency or Liquidation
Proceeding (“Secured Debt Adequate Protection Payments”), and the Priority Lien
Claimholders do not receive payment in full in cash of all Priority Lien Obligations (subject, in
the case of principal outstanding under the Priority Lien Agreement and the other Priority Lien
Documents and face amounts of letters of credit, up to the Cap Amount) upon the effectiveness of
the plan of reorganization for, or conclusion of, that Insolvency or Liquidation Proceeding, then,
the Secured Debt Claimholders shall pay over to the Priority Lien Claimholders an amount (the
“Pay-Over Amount”) equal to the lesser of (i) the Secured Debt Adequate Protection Payments
received by such Second Lien Claimholders and (ii) the amount of the short-fall (the “Short
Fall”) in payment in full of the Priority Lien Obligations (subject, in the case of principal
outstanding under the Priority Lien Agreement and the other Priority Lien Documents and face
amounts of letters of credit, up to the Cap Amount); provided that to the extent any portion of the
Short Fall represents payments received by the Priority Lien Claimholders in the form of promissory
notes, equity or other property, equal in value to the cash paid in respect of the Pay-Over Amount,
the Priority Lien Claimholders shall, upon receipt of the Pay-Over Amount, transfer those
promissory notes, equity or other property, pro rata, equal in value to the cash paid in respect of
the Pay-Over Amount to the applicable Secured Debt Claimholders in exchange for the Pay-Over
Amount. Notwithstanding anything herein to the contrary, the Priority Lien Claimholders shall not
be deemed to have consented to, and expressly retain their rights to object to the grant of
adequate protection in the form of cash payments to the Secured Debt Claimholders made pursuant to
the this Section 6.3(b).




          6.4 Avoidance Issues. If any of the Priority Lien Representative or any Priority Lien
Claimholder is required in any Insolvency or Liquidation Proceeding or otherwise to turn over or
otherwise pay to the estate of the Company or any other Grantor any amount paid in respect of
Priority Lien Obligations (a “Recovery”), then such Priority Lien Claimholders shall be entitled to
a reinstatement of Priority Lien Obligations with respect to all such recovered amounts. If this
Agreement shall have been terminated prior to such Recovery, this Agreement shall be reinstated in
full force and effect, and such prior termination shall not diminish, release,



S-22









 







discharge, impair or otherwise affect the obligations of the parties hereto from such date of
reinstatement.



          6.5 Reorganization Securities. If, in any Insolvency or Liquidation Proceeding, debt
obligations of the reorganized debtor secured by Liens upon any property of the reorganized debtor
are distributed pursuant to a plan of reorganization or similar dispositive restructuring plan,
both on account of Priority Lien Obligations and on account of Secured Debt Obligations, then, to
the extent the debt obligations distributed on account of the Priority Lien Obligations and on
account of the Secured Debt Obligations are secured by Liens upon the same property, the provisions
of this Agreement will survive the distribution of such debt obligations pursuant to such plan and
will apply with like effect to the debt obligations so distributed, to the Liens securing such debt
obligations and the distribution of proceeds thereof.



          6.6 Post-Petition Interest. (a) Neither the Collateral Trustee, any Secured Debt
Representative nor any Secured Debt Claimholder, shall oppose or seek to challenge any claim by the
Priority Lien Representative or any Priority Lien Claimholder for allowance in any Insolvency or
Liquidation Proceeding of Priority Lien Obligations consisting of Post-Petition Interest to the
extent of the value of the Lien securing any Priority Lien Representative’s or Priority Lien
Claimholder’s claim, without regard to the existence of the Lien of the Collateral Trustee on
behalf of the Secured Debt Representative’s and Secured Debt Claimholder’s on the Collateral.



          (b) Neither the Priority Lien Representative nor any other Priority Lien Claimholder shall
oppose or seek to challenge any claim by the Collateral Trustee on behalf of the Secured Debt
Obligations, or any Secured Debt Claimholder, for allowance in any Insolvency or Liquidation
Proceeding of Secured Debt Obligations consisting of Post-Petition Interest to the extent of the
value of the Lien securing any Secured Debt Representative or Secured Debt Claimholder claim (after
taking into account the Priority Lien Collateral).



          6.7 Waiver — 1111(b)(2) Issues. The Collateral Trustee, on behalf of itself and each
Secured Debt Representative and Secured Debt Claimholder, waives any objection or claim any of them
may hereafter have against the Priority Lien Representative or any Priority Lien Claimholder
arising out of the election of the Priority Lien Representative or any Priority Lien Claimholder of
the application of Section 1111(b)(2) of the Bankruptcy Code to any claims of the Priority Lien
Representative or such Priority Lien Claimholder and agrees that in the case of any such election
it shall have no claim or right to payment with respect to the Collateral in or from such
Insolvency or Liquidation Proceeding. Any reorganization securities issued with respect to such
election shall be allocated solely to the Priority Lien Claimholders pursuant to Section 6.5
hereof.



          6.8 Separate Grants of Security and Separate Classification. The Collateral Trustee,
for itself and on behalf of each Secured Debt Representative and Secured Debt Claimholder, and the
Priority Lien Representative, for itself and on behalf of the Priority Lien Claimholders,
acknowledges and agrees that:



          (a) the grants of Liens pursuant to the Priority Lien Documents and the Secured Debt Documents
constitute separate and distinct grants of Liens; and




S-23











 





          (b) because of, among other things, their differing rights in the Collateral, the Secured Debt
Obligations are fundamentally different from the Priority Lien Obligations and must be separately
classified in any plan of reorganization proposed or adopted in an Insolvency or Liquidation
Proceeding.




          To further effectuate the intent of the parties as provided in the immediately preceding
sentence, if it is held that the claims of the Priority Lien Claimholders and the Secured Debt
Claimholders in respect of the Collateral constitute (in whole or in part) only one secured claim
(rather than separate classes of senior and junior secured claims), then each of the parties hereto
hereby acknowledges and agrees that, subject to Sections 2.1 and 4.1, all distributions shall be
made as if there were separate classes of senior and junior secured claims against the Grantors in
respect of the Collateral (with the effect being that, to the extent that the aggregate value of
the Collateral is sufficient (for this purpose ignoring all claims held by the Secured Debt
Claimholders), the Priority Lien Claimholders shall be entitled to receive, in addition to amounts
distributed to them in respect of principal, pre-petition interest and other claims, all amounts
owing (or that would be owing if there were such separate classes of senior and junior secured
claims) in respect of post-petition interest, including any additional interest payable pursuant to
the Priority Lien Agreement, arising from or related to a default, which is disallowed as a claim
in any Insolvency or Liquidation Proceeding) before any distribution is made in respect of the
claims held by the Secured Debt Claimholders with respect to the Collateral, with the Collateral
Trustee, for itself and on behalf of each of the Secured Debt Representatives and Secured Debt
Claimholders, hereby acknowledging and agreeing to turn over to the Priority Lien Representative,
for itself and on behalf of the Priority Lien Claimholders, Collateral or proceeds of Collateral
otherwise received or receivable by them to the extent necessary to effectuate the intent of this
sentence, even if such turnover has the effect of reducing the claim or recovery of the Secured
Debt Claimholders).




          6.9 No Waiver. Subject to Sections 3.1(a) and (d), nothing contained herein shall prohibit or in any way
limit the Priority Lien Representative or any Priority Lien Claimholder from objecting in any
Insolvency or Liquidation Proceeding or otherwise to any action taken by the Collateral Trustee or
any of the Secured Debt Representatives or Secured Debt Claimholders, including the seeking by the
Collateral Trustee or any of the Secured Debt Representatives or Secured Debt Claimholders of
adequate protection or the asserting by the Collateral Trustee or any of the Secured Debt
Representatives or Secured Debt Claimholders of any of its rights and remedies under the Secured
Debt Documents or otherwise.




          VII. RELIANCE; WAIVERS; ETC.




          7.1 Reliance. Other than any reliance on the terms of this Agreement, the Priority
Lien Representative, on behalf of itself and the Priority Lien Claimholders under its Priority Lien
Documents, acknowledges that it and such Priority Lien Claimholders have, independently and without
reliance on the Collateral Trustee, any Secured Debt Representative or any Secured Debt
Claimholder, and based on documents and information deemed by them appropriate, made their own
credit analysis and decision to enter into such Priority Lien Documents and be bound by the terms
of this Agreement and they will continue to make their
own credit decision in taking or not taking any action under the Priority Lien Documents or
this Agreement. The Collateral Trustee, on behalf of itself and each Secured Debt Representative





S-24









 







and the Secured Debt Claimholders, acknowledges that it, the Secured Debt Representatives and
the Secured Debt Claimholders have, independently and without reliance on the Priority Lien
Representative or any Priority Lien Claimholder, and based on documents and information deemed by
them appropriate, made their own decision to enter into each of the Secured Debt Documents and be
bound by the terms of this Agreement and they will continue to make their own decision in taking or
not taking any action under the Secured Debt Documents, the Collateral Trust Agreement or this
Agreement.




          7.2 No Warranties or Liability. The Priority Lien Representative, on behalf of itself
and the Priority Lien Claimholders under the Priority Lien Documents, acknowledges and agrees that
each of the Collateral Trustee, the Secured Debt Representatives and the Secured Debt Claimholders
have made no express or implied representation or warranty, including with respect to the
execution, validity, legality, completeness, collectibility or enforceability of any of the Secured
Debt Documents, the ownership of any Collateral or the perfection or priority of any Liens thereon.
Except as otherwise provided in this Agreement, the Collateral Trustee, the Secured Debt
Representatives and the Secured Debt Claimholders will be entitled to manage and supervise their
respective loans and extensions of credit under the Secured Debt Documents in accordance with law
and as they may otherwise, in their sole discretion, deem appropriate. The Collateral Trustee, on
behalf of itself and each Secured Debt Representative and the Secured Debt Claimholders,
acknowledges and agrees that the Priority Lien Representative and the Priority Lien Claimholders
have made no express or implied representation or warranty, including with respect to the
execution, validity, legality, completeness, collectibility or enforceability of any of the
Priority Lien Documents, the ownership of any Collateral or the perfection or priority of any Liens
thereon. Except as otherwise provided herein, the Priority Lien Representative and the Priority
Lien Claimholders will be entitled to manage and supervise their respective loans and extensions of
credit under their respective Priority Lien Documents in accordance with law and as they may
otherwise, in their sole discretion, deem appropriate. The Collateral Trustee, the Secured Debt
Representatives and the Secured Debt Claimholders shall have no duty to the Priority Lien
Representative or any of the Priority Lien Claimholders, and the Priority Lien Representative and
the Priority Lien Claimholders shall have no duty to the Collateral Trustee, the Secured Debt
Representatives or any of the Secured Debt Claimholders, to act or refrain from acting in a manner
which allows, or results in, the occurrence or continuance of an event of default or default under
any agreements with the Company or any other Guarantor (including the Priority Lien Documents and
the Secured Debt Documents), regardless of any knowledge thereof which they may have or be charged
with.




          7.3 No Waiver of Lien Priorities.




          (a) No right of the Priority Lien Representative or the Priority Lien Claimholders to enforce
any provision of this Agreement or any Priority Lien Document shall at any time in any way be
prejudiced or impaired by any act or failure to act on the part of the Company or any other Grantor
or by any act or failure to act by the Priority Lien Representative or any Priority Lien
Claimholder or by any noncompliance by any Person with the terms, provisions and covenants of this
Agreement, the Collateral Trust Agreement, any of the Priority Lien Documents or any of the other
Secured Debt Documents, regardless of any knowledge thereof which the Priority Lien Representative
or the Priority Lien Claimholders, or any of them, may have or be otherwise charged with.




S-25









 








          (b) Without in any way limiting the generality of the foregoing paragraph (but subject to the
rights of the Company and the other Grantors under the Priority Lien Documents and subject to the
provisions of Section 5.3(a)), the Priority Lien Representative, the Priority Lien Claimholders and
any of them may, at any time and from time to time in accordance with the Priority Lien Documents
and/or applicable law, without the consent of, or notice to, the Collateral Trustee, the Secured
Debt Representatives or the Secured Debt Claimholders, without incurring any liabilities to such
Persons and without impairing or releasing the Lien priorities and other benefits provided in this
Agreement (even if any right of subrogation or other right or remedy of the Collateral Trustee, the
Secured Debt Representatives and/or the Secured Debt Claimholders is affected, impaired or
extinguished thereby) do any one or more of the following:




(1) change the manner, place or terms of payment or change or extend the time of payment of,
or amend, renew, exchange, increase or alter, the terms of any of the Priority Lien
Obligations or any Lien or guaranty thereof or any liability of the Company or any other
Grantor, or any liability incurred directly or indirectly in respect thereof (including any
increase in or extension of the Priority Lien Obligations, without any restriction as to the
tenor or terms of any such increase or extension) or otherwise amend, renew, exchange,
extend, modify or supplement in any manner any Liens held by the Priority Lien
Representative or any of the Priority Lien Claimholders or any rights or remedies under any
of the Priority Lien Documents; provided that any such increase in the Priority Lien
Obligations shall not increase the sum of the indebtedness constituting principal under the
Priority Lien Agreement and the face amount of any letters of credit issued under the
Priority Lien Agreement and not reimbursed to an amount in excess of the Cap Amount;




(2) sell, exchange, release, surrender, realize upon, enforce or otherwise deal with in any
manner and in any order any part of the Collateral or any liability of the Company or any
other Grantor to the Priority Lien Representative or any of the Priority Lien Claimholders
or any liability incurred directly or indirectly in respect thereof;




(3) settle or compromise any Priority Lien Obligation or any other liability of the Company
or any other Grantor or any security therefor or any liability incurred directly or
indirectly in respect thereof and apply any sums by whomsoever paid and however realized to
any liability in any manner or order; and




(4) exercise or delay in or refrain from exercising any right or remedy against the Company
or any security or any other Grantor or any other Person, elect any remedy and otherwise
deal freely with the Company or any other Grantor or any Collateral and any security and any
guarantor or any liability of the Company or any other Grantor to the Priority Lien
Representative or any of the Priority Lien Claimholders or any liability incurred directly
or indirectly in respect thereof.


Notwithstanding the provisions of the foregoing paragraph 7(b), the Priority Lien Representative
and Priority Lien Claimholders agree that (x) they will not subordinate their Priority Liens to
other Liens except those securing a DIP Financing and those of a type and amount permitted to come
prior to the Secured Debt Liens pursuant to the terms of the Secured Debt Documents and (y) in the
event of a release of all or substituting all of the Priority Liens other than in connection




S-26









 







with a sale, transfer or other disposition of the Collateral permitted under the Priority Lien
Documents in connection with an Insolvency or Liquidation Proceeding or in connection with the
exercise of remedies, the provisions of Section 2.1 shall not apply.




          (c) Except as otherwise expressly provided herein, the Collateral Trustee, on behalf of itself
and each Secured Debt Representative and the Secured Debt Claimholders, also agrees that the
Priority Lien Representative and the Priority Lien Claimholders shall have no liability to the
Collateral Trustee, the Secured Debt Representatives and the Secured Debt Claimholders, and the
Collateral Trustee, on behalf of itself and each Secured Debt Representative and the Secured Debt
Claimholders, hereby waives any claim against the Priority Lien Representative and any Priority
Lien Claimholder, arising out of any and all actions which the Priority Lien Representative or the
Priority Lien Claimholders may take or permit or omit to take with respect to:





(1) the Priority Lien Documents (other than this Agreement);




(2) the collection of the Priority Lien Obligations; or




(3) the foreclosure upon, or sale, liquidation or other disposition of, any Collateral. The
Collateral Trustee, on behalf of itself and each Secured Debt Representative and the Secured
Debt Claimholders, agrees that the Priority Lien Representative and the Priority Lien
Claimholders have no duty to them in respect of the maintenance or preservation of the
Collateral, the Priority Lien Obligations or otherwise.



          7.4 Obligations Unconditional. All rights, interests, agreements and obligations of
the Priority Lien Representative and the Priority Lien Claimholders and the Collateral Trustee, the
Secured Debt Representatives and the Secured Debt Claimholders, respectively, hereunder shall
remain in full force and effect irrespective of:




          (a) any lack of validity or enforceability of any Priority Lien Documents or any Secured Debt
Documents;




          (b) except as otherwise expressly set forth in this Agreement, any change in the time, manner
or place of payment of, or in any other terms of, all or any of the Priority Lien Obligations or
Secured Debt Obligations, or any amendment or waiver or other modification, including any increase
in the amount thereof, whether by course of conduct or otherwise, of the terms of any Priority Lien
Document or any Secured Debt Document;




          (c) except as otherwise expressly set forth in this Agreement, any exchange of any security
interest in any Collateral or any other collateral, or any amendment, waiver or other modification,
whether in writing or by course of conduct or otherwise, of all or any of the Priority Lien
Obligations or Secured Debt Obligations or any guaranty thereof;




          (d) the commencement of any Insolvency or Liquidation Proceeding in respect of the Company or
any other Grantor; or




          (e) any other circumstances which otherwise might constitute a defense available to, or a
discharge of, the Company or any other Grantor in respect of the Priority Lien




S-27









 







Representative, the Priority Lien Obligations, any Priority Lien Claimholder, the Collateral
Trustee, the Secured Debt Representatives, the Secured Debt Obligations or any Secured Debt
Claimholder in respect of this Agreement.




          VIII. MISCELLANEOUS.




          8.1 Conflicts. In the event of any conflict between the provisions of this Agreement
and the provisions of any Priority Lien Document or any Secured Debt Document, the provisions of
this Agreement shall govern and control.




          8.2 Effectiveness; Continuing Nature of this Agreement; Severability. This Agreement
shall become effective when executed and delivered by the parties hereto. This is a continuing
agreement of lien subordination and the Priority Lien Representative and the Priority Lien
Claimholders may continue, at any time and without notice to the Collateral Trustee, the Secured
Debt Representatives or the Secured Debt Claimholders, to extend credit and other financial
accommodations and lend monies to or for the benefit of the Company or any Grantor in reliance
hereon. The Priority Lien Representative, on behalf of its itself and the Priority Lien
Claimholders, and the Collateral Trustee, on behalf of itself and the Secured Debt Representatives
and the Secured Debt Claimholders, each hereby waives any right it may have under applicable law to
revoke this Agreement or any of the provisions of this Agreement. The terms of this Agreement
shall survive, and shall continue in full force and effect, in any Insolvency or Liquidation
Proceeding. 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. All references to the Company or any other Grantor
shall include the Company or such Grantor as debtor and debtor-in-possession and any receiver or
trustee for the Company or any other Grantor (as the case may be) in any Insolvency or Liquidation
Proceeding. This Agreement shall terminate and be of no further force and effect:




          (a) with respect to the Priority Lien Representative, the Priority Lien Claimholders and the
Priority Lien Obligations, on the date of the Discharge of Priority Lien Obligations, subject to
the rights of the Priority Lien Representative and Priority Lien Claimholders under Section 6.4;
and




          (b) with respect to the Collateral Trustee, the Secured Debt Representatives, the Secured Debt
Claimholders and the Secured Debt Obligations, on the date upon which the Secured Debt Obligations
terminate.




     If a Discharge of Priority Lien Obligations occurs prior to the termination of this Agreement
in accordance with this Section 8.2, to the extent that additional Priority Lien Obligations are
incurred or Priority Lien Obligations are reinstated in accordance with Section 6.4, the Discharge
of Priority Lien Obligations shall (effective upon the incurrence of such additional Priority Lien
Obligations or reinstatement of such Priority Lien Obligations, as applicable) be deemed to no
longer be effective.



S-28









 





          8.3 Amendments; Waivers. No amendment, modification or waiver of any of the
provisions of this Agreement shall be deemed to be made unless the same shall be in writing and
signed on behalf of Priority Lien Representative and the Collateral Trustee or their respective
authorized agent and each waiver, if any, shall be a waiver only with respect to the specific
instance involved and shall in no way impair the rights of the parties making such waiver or the
obligations of the other parties to such party in any other respect or at any other time.
Notwithstanding the foregoing, the Company shall not have any right to consent to or approve any
amendment, modification or waiver of any provision of this Agreement except to the extent its
rights or obligations are directly affected (which includes, but is not limited to any amendment to
the Grantors’ ability to cause additional obligations to constitute Priority Lien Obligations or
Secured Debt Obligations as the Company may designate).




          8.4 Information Concerning Financial Condition of the Company and its Subsidiaries.
The Priority Lien Representative and the Priority Lien Claimholders, on the one hand, and the
Collateral Trustee, the Secured Debt Representatives and the Secured Debt Claimholders, on the
other hand, shall each be responsible for keeping themselves informed of (a) the financial
condition of the Company and its Subsidiaries and all endorsers and/or guarantors of the Priority
Lien Obligations or the Secured Debt Obligations and (b) all other circumstances bearing upon the
risk of nonpayment of the Priority Lien Obligations or the Secured Debt Obligations. Neither the
Priority Lien Representative and the Priority Lien Claimholders, on the one hand, nor the
Collateral Trustee, the Secured Debt Representatives and the Secured Debt Claimholders, on the
other hand, shall have any duty to advise the other of information known to it or them regarding
such condition or any such circumstances or otherwise. In the event that either the Priority Lien
Representative or any of the Priority Lien Claimholders, on the one hand, or the Collateral
Trustee, the Secured Debt Representatives and the Secured Debt Claimholders, on the other hand,
undertakes at any time or from time to time to provide any such information to any of the others,
it or they shall be under no obligation:




          (a) to make, and shall not make, any express or implied representation or warranty, including
with respect to the accuracy, completeness, truthfulness or validity of any such information so
provided;




          (b) to provide any additional information or to provide any such information on any subsequent
occasion;




          (c) to undertake any investigation; or




          (d) to disclose any information, which pursuant to accepted or reasonable commercial finance
practices, such party wishes to maintain confidential or is otherwise required to maintain
confidential.




          8.5 Subrogation. With respect to the value of any payments or distributions in cash,
property or other assets that any of the Secured Debt Claimholders or the Collateral Trustee or any
Secured Debt Representative pays over to the Priority Lien Representative or the Priority Lien
Claimholders under the terms of this Agreement, the Secured Debt Claimholders, the Collateral
Trustee and any Secured Debt Representative shall be subrogated to the rights of the Priority Lien
Representative and the Priority Lien Claimholders; provided, however, that, the




S-29









 







Collateral Trustee, on behalf of itself and the Secured Debt Representatives and the Secured
Debt Claimholders, hereby agrees not to assert or enforce any such rights of subrogation it may
acquire as a result of any payment hereunder until the Discharge of Priority Lien Obligations has
occurred. The Company acknowledges and agrees that, to the extent permitted by applicable law, the
value of any payments or distributions in cash, property or other assets received by the Collateral
Trustee, any Secured Debt Representative or any Secured Debt Claimholder that are paid over to the
Priority Lien Representative or the Priority Lien Claimholders pursuant to this Agreement shall not
reduce any of the Secured Debt Obligations.




          8.6 SUBMISSION TO JURISDICTION; WAIVERS.




          (a) ALL JUDICIAL PROCEEDINGS BROUGHT AGAINST ANY PARTY ARISING OUT OF OR RELATING HERETO MAY
BE BROUGHT IN ANY STATE OR FEDERAL COURT OF COMPETENT JURISDICTION IN THE STATE, COUNTY AND CITY OF
NEW YORK. BY EXECUTING AND DELIVERING THIS AGREEMENT, EACH PARTY, FOR ITSELF AND IN CONNECTION
WITH ITS PROPERTIES, IRREVOCABLY:





(1) ACCEPTS GENERALLY AND UNCONDITIONALLY THE NONEXCLUSIVE JURISDICTION AND VENUE OF SUCH
COURTS;




(2) WAIVES ANY DEFENSE OF FORUM NON CONVENIENS;




(3) 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 THE APPLICABLE PARTY AT ITS
ADDRESS PROVIDED IN ACCORDANCE WITH SECTION 8.7;




(4) AGREES THAT SERVICE AS PROVIDED IN CLAUSE (3) 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




(5) AGREES THAT 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.



          (b) EACH OF THE PARTIES HERETO HEREBY AGREES TO WAIVE ITS RESPECTIVE RIGHTS TO A JURY TRIAL OF
ANY CLAIM OR CAUSE OF ACTION BASED UPON OR ARISING HEREUNDER OR ANY DEALINGS BETWEEN THEM RELATING
TO THE SUBJECT MATTER OF THIS AGREEMENT OR THE INTENTS AND PURPOSES HEREOF. 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 HEREOF, INCLUDING CONTRACT CLAIMS, TORT CLAIMS, BREACH OF
DUTY CLAIMS AND ALL OTHER COMMON LAW AND STATUTORY CLAIMS. EACH PARTY HERETO




S-30









 







ACKNOWLEDGES THAT THIS WAIVER IS A MATERIAL INDUCEMENT TO ENTER INTO A BUSINESS RELATIONSHIP,
THAT EACH PARTY HERETO HAS ALREADY RELIED ON THIS WAIVER IN ENTERING INTO THIS AGREEMENT, AND THAT
EACH PARTY HERETO WILL CONTINUE TO RELY ON THIS WAIVER IN ITS RELATED FUTURE DEALINGS. EACH PARTY
HERETO FURTHER WARRANTS AND REPRESENTS THAT IT HAS REVIEWED THIS WAIVER WITH ITS LEGAL COUNSEL AND
THAT IT KNOWINGLY AND VOLUNTARILY WAIVES ITS JURY TRIAL RIGHTS FOLLOWING CONSULTATION WITH LEGAL
COUNSEL. THIS WAIVER IS IRREVOCABLE; MEANING THAT IT MAY NOT BE MODIFIED EITHER ORALLY OR IN
WRITING (OTHER THAN BY A MUTUAL WRITTEN WAIVER SPECIFICALLY REFERRING TO THIS SECTION 8.6(b) AND
EXECUTED BY EACH OF THE PARTIES HERETO), AND THIS WAIVER SHALL APPLY TO ANY SUBSEQUENT AMENDMENTS,
RENEWALS, SUPPLEMENTS OR MODIFICATIONS HERETO. IN THE EVENT OF LITIGATION, THIS AGREEMENT MAY BE
FILED AS A WRITTEN CONSENT TO A TRIAL BY THE COURT.




          8.7 Notices. All notices to the Priority Lien Claimholders permitted or required
hereunder shall also be sent to the Priority Lien Representative, all notices to the Secured Debt
Representatives permitted or required hereunder shall also be sent to the Collateral Trustee and
all notices to the Secured Debt Claimholders permitted or required hereunder shall also be sent to
the applicable Secured Debt Representative and the Collateral Trustee. Unless otherwise
specifically provided herein, any notice hereunder shall be in writing and may be personally
served, telexed or sent by telefacsimile or United States mail or courier service and shall be
deemed to have been given when delivered in person or by courier service and signed for against
receipt thereof, upon receipt of telefacsimile or telex, or three Business Days after depositing it
in the United States mail, return receipt requested, with postage prepaid and properly addressed.
For the purposes hereof, the addresses of the parties hereto shall be as set forth below each
party’s name on the signature pages hereto, or, as to each party, at such other address as may be
designated by such party in a written notice to all of the other parties.




          8.8 Further Assurances. The Priority Lien Representative, on behalf of itself and the
Priority Lien Claimholders, and the Collateral Trustee, on behalf of each Secured Debt
Representative and Secured Debt Claimholder, each agrees that each of them shall take such further
action and shall execute and deliver such additional documents and instruments (in recordable form,
if requested) as the Priority Lien Representative or Collateral Trustee may reasonably request to
effectuate the terms of and the Lien priorities contemplated by this Agreement. Without limiting
the generality of the foregoing, all such Persons agree, upon request by the Priority Lien
Representative or Collateral Trustee, to cooperate in good faith (and to direct their counsel to
cooperate in good faith) from time to time in order to determine the specific items included in the
Collateral and the steps taken to perfect their respective Liens thereon and the identity of the
respective parties obligated under the Priority Lien Documents and the Secured Debt Documents.




          8.9 APPLICABLE LAW. THIS AGREEMENT SHALL BE GOVERNED BY, AND SHALL BE CONSTRUED AND
ENFORCED IN ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK.




S-31









 








          8.10 Binding Effect on Successors and Assigns and on Priority Lien Claimholders, Secured
Debt Claimholders and Secured Debt Representatives. This Agreement shall be binding upon the
Priority Lien Representative, the Priority Lien Claimholders, the Collateral Trustee, the Secured
Debt Representatives and the Secured Debt Claimholders and their respective successors and assigns.
Collateral Trustee represents that it has not agreed to any modification of the provisions in the
Secured Debt Documents authorizing it to execute this Agreement and bind the Secured Debt
Claimholders and Secured Debt Representatives and Priority Lien Representative represents that it
has not agreed to any modification of the provisions in the Priority Lien Documents authorizing it
to execute this Agreement and bind the Priority Lien Claimholders. Notwithstanding any implication
to the contrary in any provision in any other section of the Agreement, neither the Collateral
Trustee nor the Priority Lien Representative make any representation regarding the validity or
binding effect of the Secured Debt Documents or Priority Lien Documents, respectively, or their
authority to bind any of the Priority Lien Claimholders or Secured Debt Representatives or Secured
Debt Claimholders through their execution of this Agreement.




          8.11 Specific Performance. Each of the Priority Lien Representative and the
Collateral Trustee may demand specific performance of this Agreement. The Priority Lien
Representative, on behalf of itself and the Priority Lien Claimholders under the Priority Lien
Documents, and the Collateral Trustee, on behalf of itself and each of the Secured Debt
Representatives and Secured Debt Claimholders under the Collateral Trust Agreement, hereby
irrevocably waives any defense based on the adequacy of a remedy at law and any other defense which
might be asserted to bar the remedy of specific performance in any action which may be brought by
the Priority Lien Representative or the Priority Lien Claimholders or the Collateral Trustee, the
Secured Debt Representatives or the Secured Debt Claimholders, as the case may be.




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




          8.13 Counterparts. This Agreement may be executed in counterparts (and by different
parties hereto in different counterparts), each of which shall be deemed an original, but all of
which when taken together shall constitute a single contract. Delivery of an executed counterpart
of a signature page of this Agreement or any document or instrument delivered in connection
herewith by facsimile transmission or electronic transmission (in pdf format) shall be effective as
delivery of a manually executed counterpart of this Agreement or such other document or instrument,
as applicable.




          8.14 Authorization. By its signature, each Person executing this Agreement on behalf
of a party hereto represents and warrants to the other parties hereto that it is duly authorized to
execute this Agreement.




          8.15 No Third Party Beneficiaries. This Agreement and the rights and benefits hereof
shall inure to the benefit of each of the parties hereto and its respective successors and assigns
and shall inure to the benefit of each of the Priority Lien Representative, the Collateral Trustee,
the Secured Debt Representatives, the Priority Lien Claimholders and the Secured Debt





S-32









 







Claimholders. Nothing in this Agreement shall impair, as between the Company and the other
Grantors and the Priority Lien Representative and the Priority Lien Claimholders, or as between the
Company and the other Grantors and the Collateral Trustee, the Secured Debt Representatives and the
Secured Debt Claimholders the obligations of the Company and the other Grantors to pay principal,
interest, fees and other amounts as provided in the Priority Lien Documents and the Secured Debt
Documents, respectively.




          8.16 Provisions Solely to Define Relative Rights. The provisions of this Agreement
are and are intended solely for the purpose of defining the relative rights of the Priority Lien
Representative and the Priority Lien Claimholders on the one hand and the Collateral Trustee, the
Secured Debt Representatives and the Secured Debt Claimholders on the other hand. None of the
Company, any other Grantor or any other creditor thereof shall have any rights hereunder and
neither the Company nor any Grantor may rely on the terms hereof. Nothing in this Agreement is
intended to or shall impair the obligations of the Company or any other Grantor, which are absolute
and unconditional, to pay the Priority Lien Obligations and the Secured Debt Obligations as and
when the same shall become due and payable in accordance with their terms.




          8.17 Marshalling of Assets. The Collateral Trustee, the Secured Debt Representatives
and the Secured Debt Claimholders hereby each waive any and all rights to have the Collateral, or
any part thereof, marshaled upon any foreclosure or other enforcement of Priority Lien
Representative’s or the Priority Lien Claimholder’s Liens.




          8.18 Additional Secured Debt Obligations. Concurrently with the issuance or
incurrence of any new Series of Secured Debt, the Company shall cause the agent or trustee in
respect thereof to deliver to the Priority Lien Representative an Intercreditor Joinder Agreement
and a joinder agreement to the Collateral Trust Agreement, in each case in form and substance
reasonably satisfactory to the Priority Lien Representative, evidencing the acknowledgment and
agreement of the holders of such Secured Debt Obligations (or an agent or trustee on their behalf)
to be bound by the terms hereof. Upon the Priority Lien Representative’s receipt of such joinder
agreement, any such agent or trustee shall automatically be treated as a Secured Debt
Representative, and the holders of such Secured Debt Obligations shall be treated as Secured Debt
Claimholders, for all purposes of this Agreement. The Company shall require that any new Series of
Secured Debt include a Lien Sharing and Priority Confirmation its respective Secured Debt
Documents.




          8.19 UCC Financing Statement Refiling. Promptly upon the written request of the
Company and at the Company’s sole cost and expense, in anticipation of an issuance or incurrence of
Priority Lien Obligations, the Collateral Trustee shall (a) prepare and file, or cause to prepared
and filed, Duplicative UCC Financing Statements (such Duplicative UCC Financing Statements to be
filed subsequent to the filing of UCC financing statements (including fixture filings) made in
favor of the Priority Lien Representative on behalf of the Priority Lien Claimholders to perfect
the Liens granted under the Priority Debt Documents) and (b) so long as at such time the Original
UCC Financing Statement Termination Conditions shall have been satisfied, on the first Business Day
following the 91st day after such filing of the Duplicative UCC Financing Statements,
terminate, or cause to be terminated, all Original UCC Financing Statements.




S-33









 







IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the date first
written above.




	 	 	 	 	 
	 	Priority Lien Representative





[__________________],


as Priority Lien Representative

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 
	 	Notice Address:





[__________________]

[__________________]

[__________________]

[__________________]

Attention: [__________________]

 	 
	 	 	 
	 	 	 
	 	 	 



S-34









 






	 	 	 	 	 



	 	 	 	 	 
	 	Collateral Trustee




WILMINGTON TRUST FSB,

as Collateral Trustee

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 
	 	Notice Address:





[__________________]

[__________________]

[__________________]

Attention: [__________________]

Telecopier: [__________________]

Email: [__________________]

 	 
	 	 	 
	 	 	 
	 	 	 



S-35









 






	 	 	 	 	 



	 	 	 	 	 
	Acknowledged and Agreed to by:



Company



CRICKET COMMUNICATIONS, INC.

 	 	 
	By:  	 	 	 
	 	Name:  	 	 	 
	 	Title:  	 	 	 
	 
	Notice Address:




[__________________]

[__________________]

[__________________]

 	 	 
	 
	Guarantors





[__________________]

 	 	 
	By:  	 	 	 
	 	Name:  	 	 	 
	 	Title:  	 	 	 
	 
	Notice Address:




[__________________]

[__________________]

[__________________]

 	 	 



S-36









 






	 	 	 	 	 



EXHIBIT A




FORM OF INTERCREDITOR AGREEMENT JOINDER




          The undersigned,                                         , a                 , hereby agrees to become party as [a
Guarantor] [Priority Lien Representative] [Collateral Trustee] under the Intercreditor Agreement
dated as of [                    ] (the “Intercreditor Agreement”) among Cricket Communications, Inc., a
Delaware corporation, the Guarantors from time to time party thereto, [                    ], in its
capacity as Priority Lien Representative, Wilmington Trust FSB, in its capacity as Collateral
Trustee, as amended, restated, supplemented, modified, renewed, extended or refinanced from time to
time, for all purposes thereof on the terms set forth therein, and to be bound by the terms of the
Intercreditor Agreement as fully as if the undersigned had executed and delivered the Intercreditor
Agreement as of the date thereof. The provisions of Article VIII of the Intercreditor Agreement
will apply with like effect to this Intercreditor Agreement Joinder.




          IN WITNESS WHEREOF, the parties hereto have caused this Intercreditor Agreement Joinder to be
executed by their respective officers or representatives as of                                         , 20        .




	 	 	 	 	 
	 	[_________________________________]

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 




A-1