Exhibit 10.2


 




 





COLLATERAL TRUST AND INTERCREDITOR AGREEMENT


 


Dated as of March 13, 2009


 


among


 


iSTAR FINANCIAL INC.,


 


iSTAR TARA HOLDINGS LLC,


 


iSTAR TARA LLC,


 


AND THE OTHER PARTIES HERETO


 


JPMORGAN CHASE BANK, N.A.,


as First Priority Agent


 


JPMORGAN CHASE BANK, N.A.,


as 2011 Second Priority Agent


 


JPMORGAN CHASE BANK, N.A.,


as 2012 Second Priority Agent


 


and


 


THE BANK OF NEW YORK MELLON TRUST COMPANY,
N.A.,


as Collateral Trustee




 





 

















 


TABLE OF
CONTENTS


 


	
   

  	
  Page

  
	
   

  	
   

  
	
  PREAMBLE

  	
  1

  
	
   

  	
   

  
	
  DECLARATION
  OF TRUST:

  	
  1

  
	
   

  	
   

  
	
  SECTION 1.
  DEFINED TERMS

  	
  2

  
	
   

  	
   

  
	
  1.1

  	
  Definitions

  	
  2

  
	
   

  	
   

  	
   

  
	
  SECTION 2.
  ENFORCEMENT OF SECURED OBLIGATIONS

  	
  15

  
	
   

  	
   

  	
   

  
	
  2.1

  	
  Significant
  Event Notices

  	
  15

  
	
  2.2

  	
  General
  Authority of the Collateral Trustee over the Collateral

  	
  16

  
	
  2.3

  	
  Right
  to Initiate Judicial Proceedings

  	
  16

  
	
  2.4

  	
  Exercise
  of Powers; Instructions of the Controlling Party

  	
  16

  
	
  2.5

  	
  Remedies
  Not Exclusive

  	
  17

  
	
  2.6

  	
  Waiver
  and Estoppel

  	
  18

  
	
  2.7

  	
  Limitation
  on Collateral Trustee’s Duty in Respect of Collateral

  	
  18

  
	
  2.8

  	
  Limitation
  by Law

  	
  18

  
	
  2.9

  	
  Rights
  of Secured Parties under Secured Instruments

  	
  18

  
	
  2.10

  	
  Collateral
  Use Prior to Foreclosure

  	
  19

  
	
  2.11

  	
  Copies
  to Company

  	
  20

  
	
   

  	
   

  	
   

  
	
  SECTION 3.
  COLLATERAL ACCOUNT; DISTRIBUTIONS

  	
  20

  
	
   

  	
   

  	
   

  
	
  3.1

  	
  The
  Collateral Account

  	
  20

  
	
  3.2

  	
  Control
  of Collateral Account

  	
  21

  
	
  3.3

  	
  Investment
  of Funds Deposited in Collateral Account

  	
  21

  
	
  3.4

  	
  Application
  of Moneys

  	
  21

  
	
  3.5

  	
  Amounts
  Held for Contingent Secured Obligations

  	
  23

  
	
  3.6

  	
  Collateral
  Trustee’s Calculations

  	
  24

  
	
  3.7

  	
  Pro
  Rata Sharing

  	
  24

  
	
  3.8

  	
  Collateral
  Account Information and Access

  	
  24

  
	
   

  	
   

  	
   

  
	
  SECTION 4.
  AGREEMENTS WITH TRUSTEE

  	
  25

  
	
   

  	
   

  	
   

  
	
  4.1

  	
  Delivery
  of Secured Instruments

  	
  25

  
	
  4.2

  	
  Information
  as to Secured Parties and Holder Representatives

  	
  25

  
	
  4.3

  	
  Compensation
  and Expenses

  	
  25

  
	
  4.4

  	
  Stamp
  and Other Similar Taxes

  	
  25

  
	
  4.5

  	
  Filing
  Fees, Excise Taxes, Etc.

  	
  26

  
	
  4.6

  	
  Indemnification

  	
  26

  



 


ii

















 


	
  4.7

  	
  Trustee’s
  Lien

  	
  26

  
	
  4.8

  	
  Further
  Assurances

  	
  26

  
	
  4.9

  	
  Inspection
  of Properties and Books; Collateral Accountings

  	
  27

  
	
   

  	
   

  	
   

  
	
  SECTION 5.
  THE COLLATERAL TRUSTEE

  	
  27

  
	
   

  	
   

  	
   

  
	
  5.1

  	
  Acceptance
  of Trust

  	
  27

  
	
  5.2

  	
  Exculpatory
  Provisions

  	
  27

  
	
  5.3

  	
  Delegation
  of Duties

  	
  29

  
	
  5.4

  	
  Reliance
  by Collateral Trustee

  	
  30

  
	
  5.5

  	
  Limitations
  on Duties of Trustee

  	
  31

  
	
  5.6

  	
  Moneys
  to be Held in Trust

  	
  32

  
	
  5.7

  	
  Resignation
  and Removal of the Collateral Trustee

  	
  32

  
	
  5.8

  	
  Status
  of Successor Collateral Trustee

  	
  34

  
	
  5.9

  	
  Merger
  of the Collateral Trustee

  	
  34

  
	
  5.10

  	
  Co-Collateral
  Trustee; Separate Collateral Trustee

  	
  34

  
	
  5.11

  	
  Treatment
  of Payee or Indorsee by Collateral Trustee; Representatives of Secured
  Parties

  	
  35

  
	
   

  	
   

  	
   

  
	
  SECTION 6.
  MISCELLANEOUS

  	
  36

  
	
   

  	
   

  	
   

  
	
  6.1

  	
  Notices

  	
  36

  
	
  6.2

  	
  No
  Waivers

  	
  36

  
	
  6.3

  	
  Amendments,
  Supplements and Waivers

  	
  36

  
	
  6.4

  	
  Headings

  	
  38

  
	
  6.5

  	
  Severability

  	
  38

  
	
  6.6

  	
  Successors
  and Assigns

  	
  38

  
	
  6.7

  	
  Currency
  Conversions

  	
  38

  
	
  6.8

  	
  Acknowledgements

  	
  38

  
	
  6.9

  	
  Governing
  Law

  	
  39

  
	
  6.10

  	
  Counterparts

  	
  39

  
	
  6.11

  	
  Termination
  and Release

  	
  39

  
	
  6.12

  	
  New
  Grantors

  	
  42

  
	
  6.13

  	
  Inspection
  by Regulatory Agencies

  	
  42

  
	
  6.14

  	
  Confidentiality

  	
  42

  
	
  6.15

  	
  Submission
  to Jurisdiction; Waivers

  	
  43

  
	
  6.16

  	
  WAIVERS
  OF JURY TRIAL

  	
  43

  
	
   

  	
   

  	
   

  
	
  SECTION 7.
  DESIGNATION OF ADDITIONAL DEBT

  	
  43

  
	
   

  	
   

  	
   

  
	
  7.1

  	
  Designations
  of Additional Debt

  	
  43

  
	
  7.2

  	
  Termination
  of Designation

  	
  44

  
	
   

  	
   

  	
   

  
	
  SECTION 8.
  INTERCREDITOR PROVISIONS

  	
  44

  
	
   

  	
   

  	
   

  
	
  8.1

  	
  Second
  Priority Debt

  	
  44

  
	
  8.2

  	
  Junior
  Priority Debt

  	
  49

  
	
  8.3

  	
  First
  Priority Obligations Unconditional

  	
  55

  



 


iii

















 


	
  8.4

  	
  Second
  Priority Obligations Unconditional

  	
  56

  
	
  8.5

  	
  Information
  Concerning Financial Condition of the Grantors

  	
  56

  



 


iv

















 


	
  ANNEXES

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  I

  	
  Trust
  Security Documents

  	
   

  
	
   

  	
   

  	
   

  
	
  EXHIBITS

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  A

  	
  Form of
  Notice of Event of Default

  	
   

  
	
  B

  	
  Form of
  Joinder Agreement

  	
   

  
	
  C

  	
  Form of
  Notice of Designation of Additional Debt

  	
   

  
	
  D

  	
  Form of
  Notice of Cancellation

  	
   

  
	
  E

  	
  Form of
  Notice of Acceleration

  	
   

  
	
  F

  	
  Form of Notice of
  Foreclosure

  	
   

  



 


v














 


COLLATERAL TRUST AND INTERCREDITOR AGREEMENT, dated
as of March 13, 2009, among iSTAR FINANCIAL INC. (the “Company”), a
Maryland corporation, iSTAR TARA HOLDINGS LLC, a Delaware limited liability
company (“Tara Holdco”), iSTAR TARA LLC, a Delaware limited liability
company (“Tara”), the direct and indirect subsidiaries of Tara Holdco
from time to time parties hereto (together with Tara Holdco and Tara, the “Grantors”),
JPMORGAN CHASE BANK, N.A., as First Priority Agent (as defined below), JPMORGAN
CHASE BANK, N.A., as 2011 Second Priority Agent (as defined below), JPMORGAN
CHASE BANK, N.A., as 2012 Second Priority Agent (as defined below) and THE BANK
OF NEW YORK MELLON TRUST COMPANY, N.A., as Collateral Trustee (together with
any successors, the “Collateral Trustee”).


 


W I T N E S S E T H:


 


WHEREAS, the Grantors have agreed to secure
guarantees by them of certain obligations of the Company from time to time
outstanding.


 


DECLARATION OF TRUST:


 


NOW, THEREFORE, in order to secure the prompt and
complete payment and performance when due of the Secured Obligations (such term
and certain other capitalized terms used hereinafter being defined in
subsection 1.1) and in consideration of the premises and the mutual agreements
set forth herein, the Collateral Trustee does hereby declare that it holds and
will hold as trustee in trust under this Collateral Trust Agreement all of its
right, title and interest in, to and under the Trust Security Documents and the
collateral granted to the Collateral Trustee thereunder whether now existing or
hereafter arising (and the Grantors do hereby consent thereto).


 


TO HAVE AND TO HOLD the Trust Security Documents and
the entire Collateral (the right, title and interest of the Collateral Trustee
in the Trust Security Documents and the Collateral being hereinafter referred
to as the “Trust Estate”) unto the Collateral Trustee and its successors
in trust under this Collateral Trust Agreement and its assigns forever.


 


IN TRUST NEVERTHELESS, under and subject to the
conditions herein set forth and for the benefit of the Secured Parties, and for
the enforcement of the payment of all Secured Obligations, and as security for
the performance of and compliance with the covenants and conditions of this
Collateral Trust Agreement, each of the Secured Instruments and each of the
Trust Security Documents.


 


PROVIDED, HOWEVER, that these presents are upon the
condition that if the Grantors, their successors or assigns, shall satisfy the
conditions set forth in subsection 6.11(a), then this Collateral Trust
Agreement, and the estates and rights hereby assigned, shall cease and be void;
otherwise they shall remain and be in full force and effect.


 


IT IS HEREBY FURTHER COVENANTED AND DECLARED, that
the Trust Estate is to be held and applied by the Collateral Trustee, subject
to the further covenants, conditions and trusts hereinafter set forth.


 


1

















 


SECTION 1.

DEFINED TERMS


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


2

















 


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


 


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


 


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


 


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


 


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


 


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


 


3

















 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


4

















 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


5

















 


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


 


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


 


“Effective Date” shall mean March 13,
2009.


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


6

















 


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


 


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


 


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


 


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


 


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


 


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


 


7

















 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


8

















 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


9

















 


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


 


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


 


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


 


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


 


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


 


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


 


10

















 


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


 


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


 


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


 


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


 


11














 


“Person” shall mean an individual, a
corporation, a partnership, a limited liability company, an association, a
trust or any other entity or organization, including, without limitation, a
government or political subdivision or an agency or instrumentality thereof.


 


“Post-Petition Interest” shall mean all
interest (or entitlement to fees or expenses or other charges) accruing or that
would have accrued, whether as a result of the classification of the Second
Priority Secured Obligations and the First Priority Secured Obligations as one
secured claim with respect to the Collateral (and not separate classes of
senior and junior secured claims), the classification of the Junior Priority
Additional Debt Obligations and the Second Priority Secured Obligations as one
secured claim with respect to the Collateral (and not separate classes of
senior and junior secured claims), the classification of the Junior Priority
Additional Debt Obligations, the Second Priority Secured Obligations and the
First Priority Secured Obligations as one secured claim with respect to the
Collateral (and not separate classes of senior and junior secured claims), or
otherwise, after the commencement of any Insolvency Proceeding, irrespective of
whether a claim for post-filing or petition interest (or entitlement to fees or
expenses or other charges) is allowed in any such Insolvency Proceeding.


 


“Post-Petition Securities” shall mean any
debt securities or other Indebtedness received in full or partial satisfaction
of any claim as part of any Insolvency Proceeding.


 


“Proceeds” shall mean all “proceeds” as such
term is defined in Section 9-102(a)(64) of the Uniform Commercial Code in
effect in the State of New York on the date hereof.


 


“Recovery” shall have the meaning assigned in
subsection 8.1(h).


 


“Refinancing or Refinance” shall mean,
with respect to any Indebtedness, any other Indebtedness (including under any
DIP Financing and under any Post-Petition Securities received on account of
such Indebtedness) issued as part of a refinancing, extension, renewal,
defeasance, discharge, amendment, restatement, modification, supplement,
substitution, restructuring, replacement, exchange, refunding or repayment
thereof.


 


“Required Secured Parties” shall mean, as of
any date of determination, each of (i) the Majority First Priority Secured
Parties (to the extent there are any First Priority Secured Parties on such
date), (ii) the Majority Second Priority Secured Parties (to the extent
there are any Second Priority Secured Parties on such date) and (iii) only
in the event there are no First Priority Secured Parties or Second Priority
Secured Parties, the Majority Junior Priority Secured Parties.


 


“Requirement of Law” shall mean, as to any
Person, any law, treaty, rule or regulation or determination of an arbitrator
or a court of competent jurisdiction or other Governmental Authority, in each
case applicable to and binding upon such Person and any of its property, and to
which such Person and any of its property is subject.


 


12

















 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


13

















 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


14

















 


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


 


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


 


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


 


SECTION 2.


 


ENFORCEMENT OF SECURED OBLIGATIONS


 


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


 


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


 


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


 


15

















 


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


 


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


 


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


 


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


 


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


 


16

















 


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


 


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


 


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


 


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


 


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


 


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


 


17

















 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


18

















 


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


 


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


 


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


 


19

















 


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


 


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


 


SECTION 3.


 


COLLATERAL ACCOUNT; DISTRIBUTIONS


 


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


 


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3.2                      Control of Collateral Account. 
All right, title and interest in and to the Collateral Account shall
vest in the Collateral Trustee, and funds on deposit in the Collateral Account
shall constitute part of the Trust Estate, subject to the rights of the
Grantors thereto.  The Collateral Account
shall be subject to the exclusive dominion and control of the Collateral
Trustee.  Each Grantor hereby grants (i) a
security interest in the Collateral Account to the Collateral Trustee for the
benefit of the First Priority Secured Parties, as collateral security for such
Grantor’s First Priority Secured Obligations, (ii) a security interest in
the Collateral Account to the Collateral Trustee for the benefit of the Second
Priority Secured Parties, as collateral security for such Grantor’s Second
Priority Secured Obligations and (iii) a security interest in the
Collateral Account to the Collateral Trustee for the benefit of the Junior
Priority Secured Parties, as collateral security for such Grantor’s Junior
Priority Additional Debt Obligations.


 


3.3                      Investment of Funds Deposited in
Collateral Account.  The Collateral Trustee shall, at the written
direction of the Controlling Party, invest and reinvest moneys on deposit in
the Collateral Account at any time in the investments of the type described in
clauses (a) and (b) in the definition of “Cash or Cash Equivalents”
in the First Priority Credit Agreement (or any similar investments, including
funds whose assets primarily consist of such investments).  All such investments and the interest and
income received thereon and the net proceeds realized on the sale or redemption
thereof shall be held in the Collateral Account as part of the Trust
Estate.  Neither the Collateral Trustee nor
any other Secured Party shall be responsible for (i) determining whether
investments are permitted pursuant to the terms of this Section 3.3 or (ii) any
diminution in funds resulting from such investments or any liquidation prior to
maturity.  In the absence of such
directions, the Collateral Trustee shall have no obligation to invest or
reinvest any moneys.


 


3.4                      Application of Moneys.  (a) 
The Collateral Trustee shall have the right (pursuant to subsection 4.7) at any
time to apply moneys held by it in the Collateral Account to the payment of due
and unpaid Trustee Fees without any requirement that such applications be made
ratably from such account.  The
Collateral Trustee shall provide written notice to the Company of any such
application of moneys.


 


(b)                                 All moneys held by the Collateral Trustee in the Collateral
Account while an Enforcement Event is in effect shall, to the extent available
for distribution (it being understood that the Collateral Trustee may liquidate
investments prior to maturity in order to make a distribution pursuant to this
subsection 3.4(b)), be distributed (subject to the provisions of subsections
3.5 and 3.7) by the Collateral Trustee on each Distribution Date in the
following order of priority (with such distributions being made by the
Collateral Trustee to the respective Holder Representative for the Secured
Parties entitled thereto as provided in subsection 3.4(d), and each such Holder
Representative shall be responsible for insuring that amounts distributed to it
are distributed to its Secured Parties in the order of priority set forth
below):


 


First:  to the Collateral Trustee for any unpaid
Trustee Fees and then to any Secured Party which has theretofore advanced or
paid any Trustee Fees constituting administrative expenses allowable under Section 503(b) of
the Bankruptcy Code, an amount equal to the amount thereof so advanced or paid
by such Secured Party and for which such Secured Party has not been reimbursed
prior to such Distribution Date, and, if


 


21

















 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


22

















 


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


 


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


 


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


 


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


 


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


 


23

















 


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


 


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


 


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


 


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


 


24

















 


SECTION 4.


 


AGREEMENTS
WITH TRUSTEE


 


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


 


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


 


4.3                      Compensation and Expenses.  The
Grantors, jointly and severally, agree to pay to the Collateral Trustee, from
time to time upon demand, (i) reasonable compensation (which shall not be
limited by any Requirement of Law in regard to compensation of fiduciaries or
of a trustee of an express trust) for its services hereunder and under the
Trust Security Documents and for administering the Trust Estate as shall have
been agreed to in a separate agreement between the Grantors and the Collateral
Trustee and (ii) all of the reasonable fees, costs and expenses of the
Collateral Trustee (including, without limitation, the reasonable fees and
disbursements of its counsel, advisors and agents) (A) arising in
connection with the preparation, negotiation, execution, delivery,
modification, and termination of this Collateral Trust Agreement and each Trust
Security Document or the enforcement of any of the provisions hereof or
thereof, (B) incurred or required to be advanced in connection with the
administration of the Trust Estate, the custody, use or operation of,
preservation, sale or other disposition of Collateral pursuant to any Trust
Security Document and the preservation, protection, enforcement or defense of
the Collateral Trustee’s rights under this Collateral Trust Agreement and the
Trust Security Documents and in and to the Collateral and the Trust Estate
(including, but not limited to, any fees and expenses incurred by the
Collateral Trustee in a bankruptcy proceeding), (C) incurred by the
Collateral Trustee in connection with the removal of the Collateral Trustee
pursuant to subsection 5.7(a) or (D) incurred in connection with the
execution of the directions provided by the Controlling Party. Such fees, costs
and expenses are intended to constitute expenses of administration under any
Bankruptcy Law relating to creditors’ rights generally.  The obligations of the Grantors under this
subsection 4.3 shall survive the termination of the other provisions of this
Collateral Trust Agreement and the resignation or removal of the Collateral Trustee
hereunder.


 


4.4                      Stamp and Other Similar Taxes. 
The Grantors agree to indemnify and hold harmless the Collateral
Trustee, each Holder Representative and each Secured Party from any present or
future claim for liability for any stamp or any other similar tax, and any
penalties or interest with respect thereto, which may be assessed, levied or
collected by any jurisdiction in connection with this Collateral Trust
Agreement, any Trust Security Document, the Trust Estate


 


25

















 


or any Collateral. 
The obligations of the Grantors under this subsection 4.4 shall survive
the termination of the other provisions of this Collateral Trust Agreement and
the resignation or removal of the Collateral Trustee hereunder.


 


4.5                      Filing Fees, Excise Taxes, Etc. 
The Grantors agree to pay or to reimburse the Collateral Trustee for any
and all payments made by the Collateral Trustee in respect of all search,
filing, recording and registration fees, taxes, excise taxes and other similar
imposts which may be payable or determined to be payable in respect of the
execution and delivery of this Collateral Trust Agreement and each Trust
Security Document.  The obligations of
the Grantors under this subsection 4.5 shall survive the termination of the
other provisions of this Collateral Trust Agreement and the resignation or
removal of the Collateral Trustee hereunder.


 


4.6                      Indemnification. 
The Company and the Grantors agree to pay, indemnify, and hold, jointly
and severally, the Collateral Trustee (and its directors, officers, agents and
employees) harmless from and against any and all claims, liabilities,
obligations, losses, damages, penalties, actions, judgments, suits, costs,
expenses (including, without limitation, the reasonable fees and expenses of
counsel, advisors and agents) or disbursements of any kind or nature whatsoever
with respect to the execution, delivery, enforcement, performance and
administration of this Collateral Trust Agreement and the Trust Security
Documents and any modifications or termination thereof, except to the extent
arising from the gross negligence or willful misconduct of the indemnified
party or any of its affiliates or any of their respective directors, officers,
agents or employees as determined by a final judgment of a court of competent
jurisdiction, including for taxes in any jurisdiction in which the Collateral
Trustee is subject to tax by reason of actions hereunder or under the Trust
Security Documents, unless such taxes are imposed on or measured by compensation
paid to the Collateral Trustee under subsection 4.3.  In any suit, proceeding or action brought by
the Collateral Trustee under or with respect to any contract, agreement,
interest or obligation constituting part of the Collateral for any sum owing
thereunder, or to enforce any provisions thereof, the Grantors will save,
indemnify and keep the Collateral Trustee harmless from and against all
expense, loss or damage suffered by reason of any defense, setoff,
counterclaim, recoupment or reduction of liability whatsoever of any Grantor
thereunder, arising out of a breach by such Grantor of any obligation
thereunder or arising out of any other agreement, indebtedness or liability at
any time owing to or in favor of such Grantor or its successors from any
Grantor, and all such obligations of the Grantors shall be and remain
enforceable against and only against the Grantors and shall not be enforceable
against the Collateral Trustee.  The
agreements in this subsection 4.6 shall survive the termination of the other
provisions of this Collateral Trust Agreement and the resignation or removal of
the Collateral Trustee hereunder.


 


4.7                      Trustee’s Lien. 
Notwithstanding anything to the contrary in this Collateral Trust
Agreement, as security for the payment of Trustee Fees (i) the Collateral
Trustee is hereby granted a lien upon all Collateral which shall have priority
ahead of all other Secured Obligations secured by such Collateral and (ii) the
Collateral Trustee shall have the right to use and apply any of the funds held
by the Collateral Trustee in the Collateral Account to cover such Trustee Fees.


 


4.8                      Further Assurances. 
At any time and from time to time, upon the written request of the
Collateral Trustee, and at the expense of the Grantors, each Grantor will
promptly


 


26

















 


execute and deliver any and all such further
instruments and documents and take such further action as may be reasonably
requested pursuant to any Secured Instrument or Trust Security Document further
to perfect, or to protect the perfection of, the liens and security interests
granted under the Trust Security Documents, including, without limitation, the
filing of any financing or continuation statements under the Uniform Commercial
Code in effect in any jurisdiction; provided, however, that
notwithstanding anything to the contrary contained herein or in any Trust
Security Document, no Grantor shall be required to perfect the security
interests granted by it in any Collateral by any means other than by (i) executing
and delivering a copy of any Deposit Account Control Agreement or any
Securities Account Control Agreement, (ii) executing filings pursuant to
the Uniform Commercial Code of the relevant State(s), (iii) executing,
delivering and recording Mortgages in respect of certain Credit Tenant Lease
Assets (but solely to the extent required under Section 2.18 of the First
Priority Credit Agreement and Section 2.24 of each of the Second Priority
Credit Agreements) and (iv) such additional actions as may be required
pursuant to any Secured Instrument or Trust Security Document.


 


4.9                      Inspection of Properties and Books;
Collateral Accountings.  (a)  The Grantors shall
give the Collateral Trustee access during normal business hours, at its
reasonable request, to all books, records, documents and information in the
possession of any Grantor or any of their respective subsidiaries relating to
the Collateral. Upon a Foreclosure on any Collateral, the Grantors shall give
the Collateral Trustee access to any such foreclosed Collateral in the
possession of any Grantor.


 


(b)                                 At any time, the Collateral Trustee shall give the Company
and the Grantors access during normal business hours, at the Company’s or any
such Grantor’s prior written reasonable request, to all Collateral and to all
books, records, documents and information in the possession of the Collateral
Trustee.


 


(c)                                  On the last Business Day of each week or such other Business
Day as the parties hereto may agree, the Collateral Trustee shall provide the
Company and the Holder Representatives with reports listing all Collateral and
books, records, documents and information then in the possession of the
Collateral Trustee.


 


SECTION 5.


 


THE
COLLATERAL TRUSTEE


 


5.1                      Acceptance of Trust. 
The Collateral Trustee, for itself and its successors, hereby accepts
the trusts created by this Collateral Trust Agreement upon the terms and
conditions hereof.


 


5.2                      Exculpatory Provisions.  (a) 
The Collateral Trustee shall not be responsible in any manner whatsoever for the
correctness of any recitals, statements, representations or warranties herein,
all of which are made solely by the Grantors. 
The Collateral Trustee makes no representations as to the value or
condition of the Trust Estate or any part thereof, or as to the title of the
Grantors thereto or as to the security afforded by this Collateral Trust
Agreement or any Trust Security Document, or as to the validity, execution
(except its execution),


 


27

















 


enforceability, legality or sufficiency of this
Collateral Trust Agreement, the Trust Security Documents or the Secured
Obligations, and the Collateral Trustee shall incur no liability or
responsibility in respect of any such matters.


 


(b)                                 The Collateral Trustee shall not be required to ascertain or
inquire as to the performance by the Grantors of any of the covenants or
agreements contained herein or in any Trust Security Document or Secured
Instrument.  Whenever it is necessary, or
in the opinion of the Collateral Trustee advisable, for the Collateral Trustee
to ascertain the amount of Secured Obligations then held by Secured Parties,
the Collateral Trustee may rely on (i) a certificate of the First Priority
Agent, in the case of First Priority Secured Obligations, (ii) a
certificate of the relevant Second Priority Agent, in the case of its
respective Second Priority Secured Obligations and (iii) a certificate of
the relevant Junior Priority Additional Debt Representative, in the case of its
respective Junior Priority Additional Debt Obligations and, if the First
Priority Agent, any Second Priority Agent, any Junior Priority Additional Debt
Representative or any relevant Secured Party shall not give such information to
the Collateral Trustee, it shall not be entitled to receive distributions
hereunder (in which case distributions to those Persons who have supplied such
information to the Collateral Trustee shall be calculated by the Collateral
Trustee using, for those Persons who have not supplied such information, the most
recent information, if any, received by the Collateral Trustee), and the amount
so calculated to be distributed to any Person who fails to give such
information shall be held in trust for such Person until the next Distribution
Date following the time such Person does supply such information to the
Collateral Trustee, whereupon on such Distribution Date the amount
distributable to such Person shall be recalculated using such information and
distributed to it. The Collateral Trustee shall have no liability to any
Secured Parties with respect to any calculations made by the Collateral Trustee
hereunder in the event any Holder Representative shall fail to deliver its
certificate as required herein.  Nothing
in this subsection 5.2(b) shall prevent any Grantor from contesting any
amounts claimed by any Secured Party in any certificate so supplied, but the
certificates delivered by any Holder Representative shall be conclusive, for
purposes of the Collateral Trustee’s calculations, absent manifest error.  So long as no Enforcement Event is in effect,
the Collateral Trustee may rely conclusively on a certificate of a Responsible
Officer of the Company with respect to the matters set forth in the second
sentence of this subsection 5.2(b), provided a copy of any such certificate is
simultaneously provided to the Controlling Party.


 


(c)                                  The Collateral Trustee shall be under no obligation or duty
to take any action under this Collateral Trust Agreement or any Trust Security
Document if taking such action (i) would subject the Collateral Trustee to
a tax in any jurisdiction where it is not then subject to a tax or (ii) would
require the Collateral Trustee to qualify to do business in any jurisdiction
where it is not then so qualified, unless the Collateral Trustee receives
security or indemnity reasonably satisfactory to it against such tax (or
equivalent liability), or any liability resulting from such qualification, in
each case as results from the taking of such action under this Collateral Trust
Agreement or any Trust Security Document.


 


(d)                                 The Collateral Trustee shall have the same rights with
respect to any Secured Obligation held by it as any other Secured Party and may
exercise such rights as though it were not the Collateral Trustee hereunder,
and may accept deposits from, lend money to, and generally engage in any kind
of banking or trust business with the Company and/or any of the Grantors as if
it were not the Collateral Trustee.


 


28














 


(e)           Notwithstanding
any other provision of this Collateral Trust Agreement, the Collateral Trustee
shall not be liable for any action taken or omitted to be taken in accordance
with this Collateral Trust Agreement or the Trust Security Documents except to
the extent of its own gross negligence or willful misconduct.


 


(f)            Beyond
the exercise of reasonable care in the custody thereof, the Collateral Trustee
shall 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 shall not be responsible for filing any
financing or continuation statements or recording any documents or instruments
in any public office at any time or times or otherwise perfecting or
maintaining the perfection of any security interest in the Collateral.  The Collateral Trustee shall 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 shall not be liable or responsible for
any loss or diminution in the value of any of the Collateral, by reason of the
act or omission of any carrier, forwarding agency or other agent or bailee
selected by the Collateral Trustee in good faith.


 


(g)           The
Collateral Trustee shall 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 of any action or omission to act on its
part hereunder, except to the extent such action or omission constitutes gross
negligence, bad faith or willful misconduct on the part of the Collateral
Trustee, for the validity or sufficiency of the Collateral or any agreement or
assignment contained therein, for the validity of the title of any Grantor 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.


 


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


 


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


 


5.3       Delegation
of Duties.  The Collateral Trustee
may execute any of the trusts or powers hereof and perform any duty hereunder
either directly or by or through agents or attorneys-in-fact, accountants,
appraisers or other experts or advisers selected by it.  The Collateral Trustee shall be entitled to advice
of counsel concerning all matters pertaining to such 


 


29

















 


trusts, powers and duties.  The Collateral Trustee shall not be
responsible for the negligence or misconduct of any agents or attorneys-in-fact
selected by it with due care.


 


5.4       Reliance
by Collateral Trustee.  (a) 
Whenever in the administration of this Collateral Trust Agreement or the Trust
Security Documents the Collateral Trustee shall deem it necessary or desirable
that a factual matter be proved or established in connection with the
Collateral Trustee taking, suffering or omitting any action hereunder or
thereunder, such matter (unless other evidence in respect thereof is herein
specifically prescribed) may be deemed to be conclusively proved or established
by a certificate of a Responsible Officer of the Company or Controlling Party,
as applicable, delivered to the Collateral Trustee, and such certificate shall
be full warrant to the Collateral Trustee for any action taken, suffered or
omitted in reliance thereon, subject, however, to the provisions of subsection
5.5.


 


(b)           The
Collateral Trustee may consult with counsel, and any Opinion of Counsel shall
be full and complete authorization and protection in respect of any action
taken or suffered by it hereunder or under any Trust Security Document in
accordance therewith.  The Collateral
Trustee may at any time solicit written confirmatory instructions from the
Controlling Party, an officer’s certificate of a Grantor 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 Collateral Trust Agreement or any documents executed
in connection herewith.


 


(c)           The
Collateral Trustee may rely, and shall be fully protected in acting, upon any
resolution, statement, certificate, instrument, opinion, report, notice,
request, consent, order, bond or other paper or document which it has no reason
to believe to be other than genuine and to have been signed or presented by the
proper party or parties or, in the case of cables, telecopies and telexes, to
have been sent by the proper party or parties. 
In the absence of its own gross negligence or willful misconduct, the
Collateral Trustee may conclusively rely, as to the truth of the statements and
the correctness of the opinions expressed therein, upon any certificates or
opinions furnished to the Collateral Trustee and conforming to the requirements
of this Collateral Trust Agreement.


 


(d)           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 satisfactory to it against any and all liability or
expense which may be incurred by it by reason of taking or continuing to take
such action.  The Collateral Trustee
shall be under no obligation to exercise any of the rights or powers vested in
it by this Collateral Trust Agreement at the request or direction of the
Controlling Party pursuant to this Collateral Trust Agreement, unless such
Controlling Party shall have offered to the Collateral Trustee security or
indemnity satisfactory to the Collateral Trustee against the costs, expenses
and liabilities which might be incurred by it in compliance with such request
or direction.


 


(e)           Upon
any application or demand by any of the Grantors (except any such application
or demand which is expressly permitted to be made orally) to the Collateral
Trustee to take or permit any action under any of the provisions of this
Collateral Trust Agreement or any Trust Security Document, the Company shall
furnish to the Collateral Trustee a certificate of a 


 


30

















 


Responsible
Officer of the Company stating that all conditions precedent, if any, provided
for in this Collateral Trust Agreement, in any relevant Trust Security Document
or in the First Priority Credit Agreement, the Second Priority Credit
Agreements or any Additional Debt Documents relating to the proposed action
have been complied with, and in the case of any such application or demand as
to which the furnishing of any document is specifically required by any
provision of this Collateral Trust Agreement or a Trust Security Document
relating to such particular application or demand, such additional document
shall also be furnished.  A copy of any
such certificate referred to in the prior sentence shall be simultaneously
delivered to the Controlling Party. 
Except for withdrawals and releases of Collateral requested under, and
permitted by the terms of, Subsections 6.11(e), (f), (g) and (i) below,
which releases and withdrawals shall be governed by, and effected in accordance
with the terms set forth in such subsections, unless the Controlling Party
shall have given telephonic notice to the Collateral Trustee, to the effect
that the requested action is not permitted, prior to 5:00 p.m. (New York
City time) on the second Business Day following the Collateral Trustee’s
receipt of such Company or Grantor certificate (such notice to be confirmed in
writing delivered by a nationally recognized overnight courier and received by
the Collateral Trustee no later than 12:00 p.m. noon (New York City time)
on the third Business Day following Collateral Trustee’s receipt of such
certificate), the Collateral Trustee shall be authorized to take or permit the
requested action, provided that the Controlling Party shall be deemed to
have approved and authorized such requested action if the Collateral Trustee
shall not have received such notices of the Controlling Party as described in
this subsection 5.4(e).  A copy of any
notice referred to in the parenthetical above by the Controlling Party to the
Collateral Trustee shall be sent simultaneously to the Company and any
applicable Grantor.


 


(f)            Any
Opinion of Counsel may be based, insofar as it relates to factual matters, upon
a certificate of a Responsible Officer provided to such counsel in connection
with such opinion or representations made by a Responsible Officer in a writing
filed with the Collateral Trustee.


 


(g)           In
the event there is any bona fide, good faith disagreement between the parties
to this Collateral Trust Agreement or any of the documents executed in
connection herewith resulting in adverse claims being made in connection with
the Collateral held by the Collateral Trustee, the Collateral Trustee shall be
entitled to refrain from taking any action (and will incur no liability for
doing so) until directed in writing by the Controlling Party (but, in each
case, the Controlling Party may only provide directions regarding such matters
as it would otherwise be permitted to direct under this Collateral Trust Agreement
and the Trust Security Documents) or by order of a court of competent
jurisdiction.


 


5.5       Limitations
on Duties of Trustee.  (a) 
Unless an Acceleration Event is in effect, the Collateral Trustee shall be
obligated to perform such duties and only such duties as are specifically set
forth in this Collateral Trust Agreement and the Trust Security Documents, and
no implied covenants or obligations shall be read into this Collateral Trust
Agreement or any Trust Security Document against the Collateral Trustee. If and
so long as an Acceleration Event is in effect, the Collateral Trustee shall,
upon written direction of the Controlling Party in accordance with subsection
2.4(b), exercise the rights and powers vested in the Collateral Trustee by this
Collateral Trust Agreement and the Trust Security Documents, and shall not be 


 


31

















 


liable with respect to any action taken, or omitted to
be taken, in accordance with the direction of the Controlling Party.


 


(b)           Except
as herein otherwise expressly provided, the Collateral Trustee shall not be
under any obligation to take any action which is discretionary with the
Collateral Trustee under the provisions hereof or of any Trust Security
Document, except upon the written direction of the Controlling Party at such
time in accordance with subsection 2.4(b) hereof. The Collateral Trustee
shall make available for inspection and copying by each Holder Representative,
each certificate or other paper furnished to the Collateral Trustee by any of
the Grantors under or in respect of this Collateral Trust Agreement or any of
the Collateral.


 


(c)           No
provision of this Collateral Trust Agreement or of any Trust Security Document
shall be deemed to impose any duty or obligation on the Collateral Trustee to
perform any act or acts or exercise any right, power, duty or obligation
conferred or imposed on it, in any jurisdiction in which it shall be illegal,
or in which the Collateral Trustee shall be unqualified or incompetent, to
perform any such act or acts or to exercise any such right, power, duty or
obligation or if such performance or exercise would constitute doing business
by the Collateral Trustee in such jurisdiction or, unless adequately
indemnified therefor (as reasonably determined by the Collateral Trustee),
impose a tax on the Collateral Trustee by reason thereof or to risk its own
funds or otherwise incur any financial liability in the performance of its
duties hereunder.


 


5.6       Moneys
to be Held in Trust.  All moneys
received by the Collateral Trustee under or pursuant to any provision of this
Collateral Trust Agreement or any Trust Security Document (except Trustee Fees)
shall be held in trust for the purposes for which they were paid or are held.


 


5.7       Resignation
and Removal of the Collateral Trustee. 
(a)  The Collateral Trustee may at any time, by giving written
notice to the Grantors and each Holder Representative, resign and be discharged
of the responsibilities hereby created, such resignation to become effective
upon (i) the appointment of a successor Collateral Trustee, (ii) the
acceptance of such appointment by such successor Collateral Trustee, (iii) the
approval of such successor Collateral Trustee evidenced by one or more
instruments signed by the Controlling Party and, so long as no Enforcement
Event is then in effect, by the Grantors (which approval, in each case, shall
not be unreasonably withheld) and (iv) the payment of all fees and
expenses due and owing to the resigning Collateral Trustee (including, but not
limited to, the fees and expenses of its counsel).  If no successor Collateral Trustee shall be
appointed and shall have accepted such appointment within 60 days after the
Collateral Trustee gives the aforesaid notice of resignation, the Collateral
Trustee, the Grantors (so long as no Enforcement Event is then in effect) or
the Controlling Party may apply to any court of competent jurisdiction to
appoint a successor Collateral Trustee to act until such time, if any, as a
successor Collateral Trustee shall have been appointed as provided in this
subsection 5.7.  Any successor so
appointed by such court shall immediately and without further act be superseded
by any successor Collateral Trustee appointed by the Controlling Party, as
provided in subsection 5.7(b). 
While an Enforcement Event is in effect, the Controlling Party may, at
any time upon giving 30 days’ prior written notice thereof to the Collateral
Trustee, the Grantors and each other Holder Representative, remove the
Collateral Trustee and appoint a successor Collateral Trustee, such removal to
be effective upon the acceptance of such appointment by the successor and the 


 


32

















 


payment of all fees and expenses due and owing to the
removed Collateral Trustee (including, but not limited to, the fees and
expenses of its counsel).  If an
Enforcement Event is not in effect, the Controlling Party may, at any time upon
giving 30 days’ prior written notice thereof to the Collateral Trustee and each
other Holder Representative, and with the consent of the Grantors (such consent
not to be unreasonably withheld) remove the Collateral Trustee and appoint a
successor Collateral Trustee, such removal to be effective upon the acceptance
of such appointment by the successor and the receipt of approval by the
Grantors and the payment of all fees and expenses due and owing to the removed
Collateral Trustee (including, but not limited to, the fees and expenses of its
counsel).  The Collateral Trustee shall
be entitled to Trustee Fees to the extent incurred or arising, or relating to
events occurring, before such resignation or removal.


 


(b)           If
at any time the Collateral Trustee shall resign or be removed or otherwise
become incapable of acting, or if at any time a vacancy shall occur in the
office of the Collateral Trustee for any other cause, a successor Collateral
Trustee may be appointed by the Controlling Party with the consent (not to be
unreasonably withheld) of the Grantors, if no Enforcement Event is in effect,
and otherwise by the Controlling Party; provided, however, that
should the Controlling Party not act timely to appoint a successor Collateral
Trustee, the Grantors may (whether or not an Enforcement Event is then in
effect) petition a court of competent jurisdiction to appoint a successor
Collateral Trustee.  The powers, duties,
authority and title of the predecessor Collateral Trustee shall be terminated
and cancelled without procuring the resignation of such predecessor and without
any other formality (except for the consent of the Controlling Party referred
to above and as may be required by applicable law) than appointment and
designation of a successor in writing duly delivered to the predecessor and the
Grantors and the payment of the fees and expenses of the predecessor Collateral
Trustee as described in subsection 5.7(a) above.  Such appointment and designation shall be
full evidence of the right and authority to make the same and of all the facts
therein recited, and this Collateral Trust Agreement and the Trust Security
Documents shall vest in such successor, without any further act, deed or
conveyance, all the estates, properties, rights, powers, trusts, duties,
authority and title of its predecessor; but such predecessor shall,
nevertheless, on the written request of the Controlling Party, the Grantors, or
the successor, execute and deliver an instrument (in form and substance
reasonably satisfactory to the Collateral Trustee) transferring to such
successor all the estates, properties, rights, powers, trusts, duties,
authority and title of such predecessor hereunder and under the Trust Security
Documents and shall deliver all Collateral held by it or its agents to such
successor.  Should any deed, conveyance
or other instrument in writing from any Grantor be reasonably required by any
successor Collateral Trustee for more fully and certainly vesting in such
successor the estates, properties, rights, powers, trusts, duties, authority
and title vested or intended to be vested in the predecessor Collateral Trustee,
any and all such deeds, conveyances and other instruments in writing shall, on
request of such successor, be executed, acknowledged and delivered by such
Grantor.  If such Grantor shall not have
executed and delivered any such deed, conveyance or other instrument within 10
days after it received a written request from the successor Collateral Trustee
to do so, or if an Enforcement Event is in effect, the predecessor Collateral
Trustee may execute the same on behalf of such Grantor.  Such Grantor hereby appoints any predecessor
Collateral Trustee as its agent and attorney to act for it as provided in the
next preceding sentence.


 


33

















 


5.8       Status
of Successor Collateral Trustee. 
Every successor Collateral Trustee appointed pursuant to subsection 5.7
shall be a bank or trust company (other than any Holder Representative or other
Secured Party (other than the Collateral Trustee)) in good standing and having
power to act as Collateral Trustee hereunder, incorporated under the laws of
the United States of America or any State thereof or the District of Columbia
and generally recognized as capable of undertaking duties and obligations of
the type imposed upon the Collateral Trustee hereunder and that is able to
accept the trust hereunder upon reasonable or customary terms.


 


5.9       Merger
of the Collateral Trustee.  Any
Person into which the Collateral Trustee may be merged, or with which it may be
consolidated, or any Person resulting from any merger or consolidation to which
the Collateral Trustee shall be a party, shall be Collateral Trustee under this
Collateral Trust Agreement and the Trust Security Documents without the
execution or filing of any paper or any further act on the part of the parties
hereto.


 


5.10     Co-Collateral
Trustee; Separate Collateral Trustee. 
(a)  If at any time or times it shall be necessary or prudent in
order to conform to any law of any jurisdiction in which any of the Collateral
shall be located, or to avoid any violation of law or imposition on the
Collateral Trustee of taxes by such jurisdiction not otherwise imposed on the
Collateral Trustee, or the Collateral Trustee shall be advised by counsel,
satisfactory to it, that it is necessary or prudent in the interest of the
Secured Parties, or any Holder Representative shall in writing so request the
Collateral Trustee and the Grantors, or the Collateral Trustee shall deem it
desirable for its own protection in the performance of its duties hereunder or
under any Trust Security Document, the Collateral Trustee and each of the
Grantors shall execute and deliver all instruments and agreements necessary or
proper to constitute another bank or trust company or one or more persons
(other than any Holder Representative or other Secured Party (other than the
Collateral Trustee)) approved by the Collateral Trustee and the Grantors,
either to act as co-trustee or co-trustees of all or any of the Collateral
under this Collateral Trust Agreement or under any of the Trust Security
Documents, jointly with the Collateral Trustee originally named herein or
therein or any successor Collateral Trustee, or to act as separate trustee or
trustees of any of the Collateral.  If
any of the Grantors shall not have joined in the execution of such instruments
and agreements within 30 days after it receives a written request from the
Collateral Trustee to do so, or if an Enforcement Event is in effect, the
Collateral Trustee may act under the foregoing provisions of this subsection
5.10(a) without the concurrence of such Grantors and execute and deliver
such instruments and agreements on behalf of such Grantors.  Each of the Grantors hereby appoints the
Collateral Trustee as its agent and attorney to act for it under the foregoing
provisions of this subsection 5.10(a) in either of such contingencies.


 


(b)           Every
separate trustee and every co-trustee, other than any successor Collateral
Trustee appointed pursuant to subsection 5.7, shall, to the extent permitted by
law, be appointed and act and be such, subject to the following provisions and
conditions:


 


(i)            all
rights, powers, duties and obligations conferred upon the Collateral Trustee in
respect of the custody, control and management of moneys, papers or securities
shall be exercised solely by the Collateral Trustee or any agent appointed by
the Collateral Trustee;


 


34

















 


(ii)           all
rights, powers, duties and obligations conferred or imposed upon the Collateral
Trustee hereunder and under the relevant Trust Security Document or Documents
shall be conferred or imposed and exercised or performed by the Collateral
Trustee and such separate trustee or separate trustees or co-trustee or
co-trustees, jointly, as shall be provided in the instrument appointing such
separate trustee or separate trustees or co-trustee or co-trustees, except to
the extent that under any law of any jurisdiction in which any particular act
or acts are to be performed the Collateral Trustee shall be incompetent or
unqualified to perform such act or acts, or unless the performance of such act
or acts would result in the imposition of any tax on the Collateral Trustee
which would not be imposed absent such joint act or acts, in which event such
rights, powers, duties and obligations shall be exercised and performed by such
separate trustee or separate trustees or co-trustee or co-trustees;


 


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


 


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


 


(v)           the
Grantors and the Collateral Trustee, at any time by an instrument in writing
executed by them jointly, may accept the resignation of or remove any such
separate trustee or co-trustee and, in that case by an instrument in writing
executed by them jointly, may appoint a successor to such separate trustee or
co-trustee, as the case may be, anything contained herein to the contrary
notwithstanding.  If the Grantors shall
not have joined in the execution of any such instrument within 30 days after it
receives a written request from the Collateral Trustee to do so, or if an
Enforcement Event is in effect, the Collateral Trustee shall have the power to
accept the resignation of or remove any such separate trustee or co-trustee and
to appoint a successor without the concurrence of the Grantors, the Grantors
hereby appointing the Collateral Trustee its agent and attorney to act for it
in such connection in such contingency. 
If the Collateral Trustee shall have appointed a separate trustee or
separate trustees or co-trustee or co-trustees as above provided, the Collateral
Trustee may at any time, by an instrument in writing, accept the resignation of
or remove any such separate trustee or co-trustee and the successor to any such
separate trustee or co-trustee shall be appointed by the Grantors and the
Collateral Trustee, or by the Collateral Trustee alone pursuant to this
subsection 5.10(b).


 


5.11     Treatment
of Payee or Indorsee by Collateral Trustee; Representatives of Secured Parties.  The Collateral Trustee may treat the
registered holder or, if none, the payee or indorsee of any promissory note or
debenture evidencing a Secured Obligation as the absolute owner thereof for all
purposes and shall not be affected by any notice to the contrary, whether such
promissory note or debenture shall be past due or not.


 


35

















 


SECTION 6.


 


MISCELLANEOUS


 


6.1       Notices.  Unless otherwise specified herein, all
notices, requests, demands or other communications given to any of the
Grantors, the Collateral Trustee, the Controlling Party and any Holder
Representative shall be given in writing (including, but not limited to, bank
wire, facsimile transmission followed by telephonic confirmation or similar
writing) and shall be effective (i) if given by telex or facsimile
transmission, when such facsimile is transmitted to the facsimile number
specified in this subsection 6.1 and the appropriate answerback or facsimile
confirmation is received, (ii) if given by certified registered mail,
return receipt requested, with first class postage prepaid, addressed as
aforesaid, upon receipt or refusal to accept delivery, (iii) if given by a
nationally recognized overnight carrier, 24 hours after such communication is
deposited with such carrier with postage prepaid for next day delivery, or (iv) if
given by any other means, when delivered at the address specified in this
subsection 6.1; provided that any notice, request or demand to the
Collateral Trustee shall not be effective until received by the Collateral
Trustee in writing or by facsimile transmission in the corporate trust division
at the office designated by it pursuant to this subsection 6.1.   All notices, requests and other
communications to any party hereunder shall be given to such party at its
address specified on the signature pages hereof or any other address which
such party shall have specified as its address for the purpose of
communications hereunder, by notice given in accordance with this subsection
6.1 to the party sending such communication.


 


6.2       No
Waivers.  No failure on the part of
the Collateral Trustee, any co-trustee, any separate trustee, the Controlling
Party, any Holder Representative or any Secured Party to exercise, no course of
dealing with respect to, and no delay in exercising, any right, power or
privilege under this Collateral Trust Agreement or any Trust Security Document
shall operate as a waiver thereof nor shall any single or partial exercise of
any such right, power or privilege preclude any other or further exercise
thereof or the exercise of any other right, power or privilege.


 


6.3       Amendments,
Supplements and Waivers.  (a)  With
the written consent of the Required Secured Parties, the Collateral Trustee and
the Grantors may, from time to time, enter into written agreements supplemental
hereto or to any Trust Security Document for the purpose of adding to, or
waiving any provisions of, this Collateral Trust Agreement or any Trust
Security Document or changing in any manner the rights of the Collateral
Trustee, the Secured Parties or the Grantors hereunder or thereunder; provided
that no such supplemental agreement shall (i) amend, modify or waive any
provision of this subsection 6.3 without the written consent of each Holder
Representative, (ii) except as provided in the next succeeding sentence,
reduce the percentages or change the numbers specified in the definition of
Majority First Priority Secured Parties, Majority Second Priority Secured
Parties, Majority Junior Priority Secured Parties and Majority Secured Parties
or amend, modify or waive any provision of subsection 3.4 or the definition of
Secured Obligations, First Priority Secured Obligations, 2011 Second Priority
Secured Obligations, 2012 Second Priority Secured Obligations, Second Priority
Additional Debt Obligations, Junior Priority Additional Debt Obligations or
otherwise change the relative rights of the Secured Parties under the
Collateral Trust Agreement in respect of payments or Collateral without the
written consent of holders constituting the Majority Class Holders of each
Class 


 


36

















 


whose rights would be adversely affected thereby, (iii) amend,
modify or waive any provision of subsection 8.1 without the written consent of
the relevant Second Priority Agent if any Second Priority Secured Obligations
are then outstanding, but only if the relative rights of the Second Priority
Secured Parties in respect of such Second Priority Secured Obligations would be
adversely affected thereby, (iv) amend, modify or waive any provision of
subsection 8.2 without the written consent of the relevant Junior Priority
Additional Debt Representative if any Junior Priority Additional Debt
Obligations are then outstanding, but only if the relative rights of the Junior
Priority Secured Parties, as the case may be, in respect of such Junior
Priority Additional Debt Obligations would be adversely affected thereby or (v) amend,
modify or waive any provision of Section 4 or Section 5 or alter the
duties, rights or obligations of the Collateral Trustee hereunder or under the
Trust Security Documents without the written consent of the Collateral
Trustee.  Any such supplemental agreement
shall be binding upon the Grantors, each Holder Representative, the Secured
Parties and the Collateral Trustee and their respective successors and assigns.


 


(b)           Solely
with the consent of the Controlling Party (and without the consent of any other
Secured Party), the Collateral Trustee and the Grantors, at any time and from
time to time, may enter into one or more agreements supplemental hereto or to
any Trust Security Document, (i) to add to the covenants of such Grantor
for the benefit of the Secured Parties or to surrender any right or power
herein conferred upon such Grantor; (ii) to mortgage or pledge to the
Collateral Trustee, or grant a security interest in favor of the Collateral
Trustee in, any property or assets as additional security for the Secured
Obligations; (iii) as contemplated in subsection 6.3(d); or (iv) to
cure any ambiguity, to correct or supplement any provision herein or in any
Trust Security Document which may be defective or inconsistent with any other
provision herein or therein, or to make any other provision with respect to
matters or questions arising hereunder which shall not be inconsistent with any
provision hereof; provided that any such action contemplated by this clause
(iv) shall not adversely affect the interests of any of the Secured
Parties.


 


(c)           Solely
with the consent of the Controlling Party (and without the consent of any other
Secured Party), the Collateral Trustee, the Grantors and the Holder
Representative for each Junior Priority Additional Debt, at any time and from
time to time, may enter into one or more agreements supplemental hereto or to
any Trust Security Document, to provide for the inclusion herein of
intercreditor provisions as between, on the one hand, one or more issues of
Junior Priority Additional Debt and, on the other hand, one or more other
issues of Junior Priority Additional Debt (it being agreed that the consent of
the Holder Representative of any Junior Priority Additional Debt benefiting
from any such intercreditor provisions with respect to such issues
substantially in the form of subsections 8.2 and 8.4, with appropriate
changes in the references therein, shall not be required); provided that
any such action contemplated by this clause shall not adversely affect the
interests of any of the Secured Parties in respect of the First Priority
Secured Obligations or any Second Priority Secured Obligations.


 


(d)           Each
of the First Priority Agent and the Second Priority Credit Agents agrees (with
the intention of such agreement being binding upon the Secured Parties for
which it is the Holder Representative) that, at any time when it is the
Controlling Party, it will cooperate with the Company in effecting any
amendment to this Collateral Trust Agreement or any Trust Security Document
reasonably requested by the Company that does not, in the opinion of such 


 


37

















 


Controlling
Party, adversely affect the interests of the then Secured Parties (it being
understood that any Additional Debt, or Liens securing such Additional Debt, in
each case, permitted under the Secured Instruments, does not adversely affect
the interests of the then Secured Parties), provided that such amendment
is reasonably intended in the opinion of the Grantors to facilitate the
issuance, or securing pursuant hereto, of any Additional Debt.


 


6.4       Headings.  The table of contents and the headings of
Sections and subsections have been included herein and in the Trust Security
Documents for convenience only and should not be considered in interpreting
this Collateral Trust Agreement or the Trust Security Documents.


 


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


 


6.6       Successors
and Assigns.  This Collateral Trust
Agreement shall be binding upon and inure to the benefit of each of the parties
hereto and their respective successors and assigns and shall inure to the
benefit of each of the Secured Parties and their respective successors and
assigns, and nothing herein is intended or shall be construed to give any other
Person any right, remedy or claim under, to or in respect of this Collateral
Trust Agreement or any Collateral.


 


6.7       Currency
Conversions.  In calculating the
amount of Secured Obligations or Collateral proceeds for any purpose hereunder,
including, without limitation, voting or distribution purposes, the amount of
any Secured Obligation or any such proceeds which is denominated in a currency
other than Dollars shall be converted by the Collateral Trustee (which
conversion shall be confirmed in writing by the Controlling Party) into Dollars
at the spot rate appearing on the relevant display page (as determined by
the Collateral Trustee) on the Reuters Monitor Money Rates Service for the sale
of the applicable currency for Dollars in the London foreign exchange market at
approximately 11a.m. (London time) for delivery two (2) Business Days
later.


 


6.8       Acknowledgements.  Each Grantor hereby acknowledges that:


 


(a)           it
has been advised by counsel in the negotiation, execution and delivery of this
Collateral Trust Agreement and the other Trust Security Documents to which it
is a party;


 


(b)           neither
the Collateral Trustee nor any Secured Party has any fiduciary relationship
with or duty to any Grantor arising out of or in connection with this
Collateral Trust Agreement or any of the First Priority Loan Documents, the
Second Priority Loan Documents and any Additional Debt Documents, and the
relationship between the Grantors, on the one hand, and the Collateral Trustee
and Secured Parties, on the other hand, in connection herewith or therewith is
solely that of debtor and creditor; and


 


38














 


(c)           no
joint venture is created hereby or by the First Priority Loan Documents, the
Second Priority Loan Documents or any Additional Debt Documents or otherwise
exists by virtue of the transactions contemplated hereby among the Secured
Parties or among the Grantors and the Secured Parties.


 


6.9       Governing
Law.  This Collateral Trust Agreement
shall be governed by, and construed and interpreted in accordance with, the law
of the State of New York.


 


6.10     Counterparts.  This Collateral Trust Agreement may be signed
in any number of counterparts with the same effect as if the signatures thereto
and hereto were upon the same instrument. 
Delivery of an executed signature page of this Collateral Trust
Agreement by facsimile or other electronic transmission shall be effective as
delivery of a manually executed counterpart hereof.


 


6.11     Termination
and Release.  (a)  Upon the
termination of, and satisfaction in full of all of the obligations under, the
First Priority Loan Documents, any Second Priority Loan Documents or any
Additional Debt Documents, as the case may be, the applicable Holder
Representative hereby agrees to promptly provide written directions to the
Collateral Trustee stating that the conditions for release under such Secured
Instruments have been satisfied.  Upon
the Collateral Trustee’s (i) receipt of such written directions from all
Holder Representatives and (ii) confirmation of payment in full of all
Trustee Fees, the security interests created by the Trust Security Documents
shall terminate forthwith and all right, title and interest of the Collateral
Trustee in and to the Collateral shall revert to the Grantors, their successors
and assigns.


 


(b)           Upon
the termination of the Collateral Trustee’s security interest and the release
of the Collateral in accordance with subsection 6.11(a), the Collateral Trustee
will promptly, at the Grantors’ written request and expense (but, in any event,
not later than three Business Days following such request), (i) execute
and deliver to the Grantors such documents (in form and substance reasonably
satisfactory to the Collateral Trustee and the Grantors) as the Grantors shall
reasonably request to evidence the termination of such security interest or the
release of the Collateral and (ii) deliver or cause to be delivered to the
Grantors all property of the Grantors then held by the Collateral Trustee or
any agent thereof.


 


(c)           Except
as set forth in subsections (e), (f), (g) and (i) below, upon the
withdrawal of any Collateral as permitted by the First Priority Loan Documents,
the Second Priority Loan Documents and any Additional Debt Documents, the
security interests and Liens created by the Trust Security Documents in such
Collateral shall terminate and such Collateral shall be automatically released
from the Lien created by the Trust Security Documents (subject to any
requirement therein with respect to the retention of the Proceeds of a
disposition of Collateral subject to this Collateral Trust Agreement or any
Trust Security Document).  Upon receipt
by the Collateral Trustee and the Controlling Party of a certificate from the
relevant Grantor or the Company stating that such withdrawal is permitted by
(or the relevant consent has been received under) the First Priority Loan
Documents, the Second Priority Loan Documents and any Additional Debt
Documents, unless the Controlling Party shall have given telephonic notice to
the Collateral Trustee, to the effect that the requested withdrawal is not
permitted, prior to 5:00 p.m. (New York City time) on the second Business
Day following the Collateral Trustee’s receipt of such Company or Grantor
certificate (such notice to be confirmed in writing delivered by a 


 


39

















 


nationally
recognized overnight courier and received by the Collateral Trustee no later
than 12:00 p.m. noon (New York City time) on the third Business Day
following Collateral Trustee’s receipt of such certificate), the Collateral
Trustee shall be authorized to, and shall promptly at such Grantor’s or the
Company’s request and expense, (i) execute and deliver such documents (in
form and substance reasonably satisfactory to the Collateral Trustee and the
Grantor) as such Grantor or the Company shall reasonably request to evidence
the termination of such security interest and Lien and the release of such
Collateral (subject to any requirement with respect to the retention of the
Proceeds of a disposition of Collateral subject to this Collateral Trust
Agreement or any Trust Security Document) and (ii) deliver or cause to be
delivered to such Grantor or the Company all property (including any promissory
notes and related transfer documents), if any, constituting part of such
withdrawn Collateral then held by the Collateral Trustee or any agent thereof.
The Controlling Party shall be deemed to have approved and authorized any such
requested withdrawal and release if the Collateral Trustee shall not have
received the notices of the Controlling Party as described in this subsection
6.11(c). A copy of any notice of the Controlling Party referred to in this
subsection 6.11(c) shall be sent simultaneously to the Company and any
applicable Grantor.


 


(d)           Upon
receipt by the Collateral Trustee of written notice from each Holder
Representative directing the Collateral Trustee to cause the Liens on a portion
of the Collateral identified in such notice to be released and discharged, the
security interests created by the Trust Security Documents in such Collateral
shall terminate forthwith and all right, title and interest of the Collateral
Trustee in and to such Collateral shall revert to the Grantors, their
successors and assigns.


 


(e)           Upon
receipt by the Collateral Trustee of written certification from the applicable
Grantor or the Company that physical possession of any of such Grantor’s
property then held by the Collateral Trustee or any agent thereof (including
any promissory notes and related transfer documents, if any, constituting part
of any Collateral) is necessary or customary to enforce (or would otherwise
facilitate enforcement of) such Grantor’s remedies (or actions in lieu of the
exercise of enforcement) against counterparties, or for the purpose of
correction of defects, if any, under or in relation to any Collateral, the
Collateral Trustee shall (i) cause to be delivered such property to such
Grantor, the Company or its agents pending any enforcement action, exercise of
rights or other customary actions in lieu of enforcement or for the purpose of
correction of defects, if any, or loan (or other asset) administration and
servicing, in each case in respect of any such promissory notes and related
Collateral, and (ii) execute and deliver such documents (in form and
substance reasonably satisfactory to the Collateral Trustee and the Grantors),
and take such other actions in connection with such escrowed release as such
Grantor or the Company may reasonably request in writing; it being understood
that the delivery of any such property shall not constitute a release of the
Collateral and any Proceeds received by such Grantor upon any such enforcement
shall be subject to this Collateral Trust Agreement and the Trust Security
Documents.  A copy of any certificate by
a Grantor or the Company to the Collateral Trustee under this subsection 6.11(e) shall
be sent simultaneously to the Controlling Party. The Company and the Grantors
hereby agree to hold in escrow any Collateral delivered to the Company or the
Grantors, as applicable, by the Collateral Trustee pursuant to this subsection
6.11(e).


 


40

















 


(f)            Upon
receipt by the Collateral Trustee of written certification from the applicable
Grantor or the Company that such Grantor has entered into a binding contract
for a sale of Collateral to a third party or other monetization (that is not a payment
or prepayment), in each case, in a transaction (a “Third Party Sale”)
permitted by the First Priority Loan Documents, the Second Priority Loan
Documents and any Additional Debt Documents, the Collateral Trustee shall
promptly at such Grantor’s or the Company’s request and expense (i) execute
and deliver, for release only upon completion of such Third Party Sale, such
documents (in form and substance reasonably satisfactory to the Collateral
Trustee and the Grantors) as such Grantor or the Company shall reasonably
request to evidence the termination of the security interest and Lien in, and
release of, such Collateral upon completion of such Third Party Sale (subject
to any requirement with respect to retention of the Proceeds of such Third
Party Sale subject to this Collateral Trust Agreement or any Trust Security
Document) and (ii) deliver, or cause to be delivered, for release only
upon completion of such Third Party Sale, to such Grantor or the Company all
property (including any promissory notes and related transfer documents), if
any, constituting part of such Collateral (and any related collateral) then
held by the Collateral Trustee or any agent thereof.  If no Material Default (as defined in the
First Priority Credit Agreement or either of the Second Priority Credit
Agreements, as applicable) or Enforcement Event has occurred and is continuing
when any Grantor shall have entered into a binding contract for a Third Party
Sale, but such Grantor shall not have completed such Third Party Sale prior to
a Foreclosure on such Collateral or any other intervening Enforcement Event,
the Collateral Trustee shall provide the releases, and otherwise act in
accordance with the provisions of, this Section 6.11 in respect of such
Third Party Sale notwithstanding such intervening Foreclosure or other
Enforcement Event.  A copy of any
certificate by a Grantor or the Company to the Collateral Trustee under this
subsection 6.11(f) shall be sent simultaneously to the Controlling
Party.  The Company and the Grantors hereby
agree to hold in escrow any Collateral delivered to the Company or the
Grantors, as applicable, by the Collateral Trustee pursuant to this subsection
6.11(f).


 


(g)           Upon
receipt by the Collateral Trustee of written certification from the applicable
Grantor or the Company that such Grantor has received, or has received notice
that it will receive, a payment or prepayment in satisfaction or settlement in
respect of any portion of the Collateral, the Collateral Trustee shall promptly
at such Grantor’s or the Company’s request and expense (i) execute and
deliver, for release only upon receipt by the Grantor of such payment or
prepayment in satisfaction or settlement, such documents (in form and substance
reasonably satisfactory to the Collateral Trustee and the Grantors) as such
Grantor or the Company shall reasonably request to evidence termination of the
security interest and Lien in, and release of, such Collateral (subject to any
requirement with respect to retention of the Proceeds of such payment or prepayment
under this Collateral Trust Agreement or any Trust Security Documents) and (ii) deliver,
or cause to be delivered, for release only upon receipt of such payment or
prepayment in satisfaction or settlement, to such Grantor or the Company all
property (including any promissory notes and related transfer documents), if
any, constituting part of such Collateral (and any related collateral) then
held by the Collateral Trustee or any agent thereof.  A copy of any certificate by a Grantor or the
Company to the Collateral Trustee under this subsection 6.11(g) shall be
sent simultaneously to the Controlling Party. 
The Company and the Grantors hereby agree to hold in escrow any
Collateral delivered to the Company or the Grantors, as applicable, by the
Collateral Trustee pursuant to this subsection 6.11(g).


 


41

















 


(h)           Upon
receipt by the Collateral Trustee of a written notice from the Controlling
Party that (i) the security interests and Liens created under the Security
Agreement in the Pledged Stock (as defined in the Security Agreement) issued by
a Grantor (other than Tara) have been released, or (ii) all of the
Collateral owned by a Grantor (other than Tara or Tara Holdco) has been
released, in each case, in accordance with the provisions of this Section 6.11,
such Grantor shall be released from its obligations hereunder and under the
Trust Security Documents.  Upon any such
release, the Collateral Trustee will promptly, at such Grantor’s or the Company’s
written request and expense, (x) execute and deliver such documents as
such Grantor or the Company shall reasonably request to evidence the
termination of such Grantors obligations under this Collateral Trust Agreement
and the Trust Security Documents and (ii) deliver or cause to be delivered
to such Grantor or the Company all property (including any promissory notes and
related transfer documents), if any, of such Grantor then remaining held by the
Collateral Trustee or any agent thereof.


 


(i)            This
Collateral Trust Agreement shall terminate when the security interests granted
under each of the Trust Security Documents have terminated and the Collateral
has been released as provided in subsection 6.11(a); provided that the
provisions of subsections 4.3, 4.4, 4.5 and 4.6 shall not be affected by any
such termination.


 


6.12     New
Grantors.  During the term of this
Collateral Trust Agreement, one or more additional Collateral SPVs and
Collateral LLCs may become a party to this Collateral Trust Agreement by (i) executing
a joinder agreement, substantially in the form of Exhibit B, and (ii) executing
and delivering, or causing to be executed and delivered, all such documents,
instruments, agreements, and certificates as are similar to those described in
Sections 3.1(h) of the First Priority Credit Agreement.


 


6.13     Inspection
by Regulatory Agencies.  The
Collateral Trustee shall make available, and shall cause each custodian and
agent acting on its behalf in connection with this Collateral Trust Agreement
to make available, all Collateral in such Person’s possession upon prior
written notice and during regular business hours for inspection by any
regulatory agency having jurisdiction over any Grantor to the extent required
by such regulatory agency in its discretion.


 


6.14     Confidentiality.  The Collateral Trustee agrees to keep
confidential all non-public information (a) provided to it by or on behalf
of the Grantors or the Secured Parties pursuant to or in connection with this
Collateral Trust Agreement or any Trust Security Document or (b) obtained
by the Collateral Trustee based on a review of the books and records of the
Grantors; provided that nothing herein shall prevent the Collateral
Trustee from disclosing any such information (i) to the First Priority
Agent, Second Priority Agents or any Junior Priority Additional Debt
Representatives or any other Secured Party, (ii) to its affiliates,
employees, directors, agents, attorneys, accountants and other professional
advisors subsequent to the Collateral Trustee advising such Person of the
confidentiality provisions contained herein, (iii) upon the request or
demand of any Governmental Authority having jurisdiction over the Collateral
Trustee upon notice to the Grantors thereof, unless such notice is prohibited
or the Governmental Authority shall require otherwise, (iv) in response to
any order of any court or other Governmental Authority or as may otherwise be
required pursuant to any Requirement of Law, after notice to the Grantors if
reasonably feasible and if not prohibited by such court or 


 


42

















 


Governmental Authority or applicable law, (v) in
connection with any litigation to which the Collateral Trustee is a party,
after notice to the Grantors if reasonably feasible, (vii) which has been
publicly disclosed other than in breach of this Collateral Trust Agreement, or (viii) to
the extent reasonably necessary, in connection with the exercise of any remedy
hereunder.


 


6.15     Submission
to Jurisdiction; Waivers.  The
Company and each Grantor hereby irrevocably and unconditionally:


 


(a)           submits
for itself and its property in any legal action or proceeding relating to this
Collateral Trust Agreement and the other Trust Security Documents to which it
is a party, or for recognition and enforcement of any judgment in respect
thereof, to the non-exclusive general jurisdiction of the Courts of the County
of New York, State of New York, the courts of the United States of America
for the Southern District of New York, and appellate courts from any
thereof;


 


(b)           to
the extent permitted by applicable law, consents that any such action or
proceeding may be brought in such courts and waives any objection that it may
now or hereafter have to the venue of any such action or proceeding in any such
court or that such action or proceeding was brought in an inconvenient court
and agrees not to plead or claim the same;


 


(c)           waives,
to the maximum extent not prohibited by law, any right it may have to claim or
recover in any legal action or proceeding referred to in this subsection any
special, exemplary, punitive or consequential damages.


 


6.16     WAIVERS OF JURY TRIAL (a) .  EACH PARTY
HERETO HEREBY IRREVOCABLY AND UNCONDITIONALLY WAIVES TRIAL BY JURY IN ANY LEGAL
ACTION OR PROCEEDING RELATING TO THIS COLLATERAL TRUST AGREEMENT OR ANY OTHER
TRUST SECURITY DOCUMENT AND FOR ANY COUNTERCLAIM THEREIN.


 


SECTION 7.


 


DESIGNATION OF ADDITIONAL
DEBT


 


7.1       Designations
of Additional Debt.  The Company may
at any time and from time to time designate additional obligations (whether
outstanding on the date of such designation or on a prospective “when issued
basis”) as “Second Priority Additional Debt” or “Junior Priority Additional
Debt”, identifying the relevant “Second Priority Additional Debt Representative”
or “Junior Priority Additional Debt Representative”, as the case may be, which
is secured by the Collateral pursuant to this Collateral Trust Agreement and
the Trust Security Documents in accordance with this Section 7 (it being
understood that if such notice is prospective such designation is contingent
upon the issuance or incurrence of the related obligations); provided
that (i) no more than $1,000,000,000 of the aggregate principal amount of
such Additional Debt shall be designated as Second Priority Additional Debt, (ii) any
additional Collateral required to be pledged in satisfaction of the relevant
Coverage Test pursuant to 


 


43

















 


Section 5.17 of the First Priority Credit
Agreement and Section 5.17 of each of the Second Priority Credit
Agreements, shall be transferred or deposited with the Collateral Trustee not
later than the designation of such additional obligations as Additional Debt
hereunder and (iii) the incurrence of such Additional Debt and the
pledging of such additional Collateral shall be permitted at such time under
each applicable Secured Instrument.  The
Company shall furnish each Notice of Designation of Additional Debt to each
Holder Representative substantially in the form of Exhibit C (each a “Notice
of Designation of Additional Debt”) promptly after delivering the same to
the Collateral Trustee; provided that failure to deliver such notice
shall not affect the validity of any such designation.


 


7.2       Termination of
Designation.  Once designated as
Additional Debt pursuant to this Section 7, the relevant obligations shall
remain secured as Additional Debt pursuant to this Collateral Trust Agreement
and the Trust Security Documents until the first to occur of (i) the
termination of this Collateral Trust Agreement in accordance with subsection
6.11, (ii) the payment in full of such Secured Obligations and (iii) the
delivery to the Collateral Trustee of the written consent of the relevant
Secured Party or Parties to the release of the security interest in the Collateral
securing such Secured Obligations.


 


SECTION 8.


 


INTERCREDITOR PROVISIONS


 


8.1       Second
Priority Debt.  The Second Priority
Credit Agents, and to the extent that the Company or any Grantor incurs any
Second Priority Additional Debt, any Second Priority Additional Debt
Representative for, and each Second Priority Secured Party with respect to, the
Second Priority Secured Obligations shall be bound by the following terms and
conditions:


 


(a)           Any
and all Liens now existing or hereafter created or arising in favor of any such
Second Priority Secured Party securing the Second Priority Secured Obligations,
regardless of how acquired, whether by grant, statute, operation of law,
subrogation or otherwise, are expressly junior in priority, operation and effect
to any and all Liens now existing or hereafter created or arising in favor of
the First Priority Secured Parties securing the First Priority Secured
Obligations, notwithstanding (i) anything to the contrary contained in any
agreement or filing to which any such Second Priority Secured Party may now or
hereafter be a party, and regardless of the time, order or method of grant,
attachment, recording or perfection of any financing statements or other
security interests, assignments, pledges, deeds, mortgages and other liens,
charges or encumbrances or any defect or deficiency or alleged defect or
deficiency in any of the foregoing, (ii) any provision of the Uniform
Commercial Code or any applicable law or any agreement with respect to the
First Priority Secured Obligations or the Second Priority Secured Obligations
or any other circumstance whatsoever and (iii) the fact that any such
Liens in favor of any First Priority Secured Party securing any of the First
Priority Secured Obligations are (x) subordinated to any Lien securing any
obligation of any Grantor other than the Second Priority Secured Obligations or
(y) otherwise subordinated, voided, avoided, invalidated or lapsed;


 


44

















 


(b)           No
such Second Priority Secured Party shall object to or contest, or support any
other Person in contesting or objecting to, in any proceeding (including
without limitation, any Insolvency Proceeding), the validity, extent,
perfection, priority or enforceability of any security interest in the
Collateral granted to any First Priority Secured Party.  Notwithstanding any failure by any First
Priority Secured Party to perfect its security interests in the Collateral or
any avoidance, invalidation or subordination by any third party or court of
competent jurisdiction of the security interests in the Collateral granted to
the First Priority Secured Parties, the priority and rights as between the
First Priority Secured Parties and the Second Priority Secured Parties with
respect to the Collateral shall be as set forth herein;


 


(c)           No
such Second Priority Secured Party shall, prior to the payment in full of the
First Priority Secured Obligations, assert, demand, request, plead or otherwise
claim the benefit of, any marshalling, appraisal, valuation and any other right
that may otherwise be available under any applicable Requirement of Law with
respect to any Collateral to a creditor in its capacity as beneficiary of a
junior lien on such Collateral;


 


(d)           No
such Second Priority Secured Party shall, in or in connection with any
Insolvency Proceeding, file any pleadings or motions, take any position at any
hearing or proceeding of any nature, or otherwise take any action whatsoever,
in each case in respect of any of the Collateral, including, without
limitation, with respect to the determination of any Liens or claims held by
any First Priority Secured Party or the value of any claims of such parties
under Section 506(a) of the Bankruptcy Code or otherwise; provided
that any such Second Priority Secured Party may file a proof of claim in an
Insolvency Proceeding, subject to the limitations contained in this Collateral
Trust Agreement and only if consistent with the terms and the limitations on
such Second Priority Secured Party imposed hereby;


 


(e)           If
any Grantor becomes subject to any Insolvency Proceeding, and if the First
Priority Agent desires to consent (or not object) to the use of cash collateral
under the Bankruptcy Code or to provide any DIP Financing to any Grantor or to
consent (or not object) to the provision of any DIP Financing to any Grantor,
whether or not proceeds of any such DIP Financing are being used to Refinance
all or any portion of the First Priority Secured Obligations, then each such
Second Priority Secured Party (i) will be deemed to have consented to, and
will raise no objection to, nor support any other Person objecting to, the use
of such cash collateral or such DIP Financing, (ii) will not request or
accept adequate protection or any other relief in connection with the use of
such cash collateral or such DIP Financing except as set forth in subsection
8.1(g) below, (iii) will subordinate (and will be deemed hereunder to
have subordinated) its Second Priority Secured Obligations (x) to such DIP
Financing on the same terms as the First Priority Secured Obligations are
subordinated thereto (and such subordination will not alter in any manner the
terms of this Collateral Trust Agreement) or, to the extent the proceeds of
such DIP Financing refinance all or any portion of the First Priority Secured
Obligations, on the same terms as the Second Priority Secured Obligations are
subordinated to the First Priority Secured Obligations pursuant to this
Collateral Trust Agreement, (y) to any adequate protection provided to the
First Priority Secured Parties and (z) to any “carve-out” agreed to by the
First Priority Agent, and (iv) agrees that notice received two 


 


45

















 


calendar days prior to the entry of an order approving such usage of
cash collateral or approving such financing shall be adequate notice;


 


(f)            No
such Second Priority Secured Party will seek relief from the automatic stay or
from any other stay in any Insolvency Proceeding or take any action in
derogation thereof, in each case in respect of any Collateral, without the
prior written consent of the Majority First Priority Secured Parties (to the
extent there are any First Priority Secured Parties);


 


(g)           No
such Second Priority Secured Party shall object to, contest, or support any
other Person objecting to or contesting, (i) any request by any First
Priority Secured Party for adequate protection or any adequate protection
provided to any First Priority Secured Party, (ii) any objection by any
First Priority Secured Party to any motion, relief, action or proceeding based
on a claim of a lack of adequate protection or (iii) the payment of
interest, fees, expenses or other amounts to any First Priority Secured Party
under Section 506(b) or 506(c) of the Bankruptcy Code or
otherwise.  Notwithstanding anything
contained in this subsection (but subject to all other provisions of this
Collateral Trust Agreement), in any Insolvency Proceeding, (x) if the
First Priority Secured Parties (to the extent there are any First Priority
Secured Parties) are granted adequate protection consisting of additional
collateral (with replacement liens on such additional collateral) and
superpriority claims in connection with any DIP Financing or use of cash
collateral, and such First Priority Secured Parties do not object to the
adequate protection being provided to them, then in connection with any such
DIP Financing or use of cash collateral such Second Priority Secured Parties
may seek or accept adequate protection consisting solely of a replacement Lien on
the same additional collateral, subordinated to the Liens securing the First
Priority Secured Obligations and such DIP Financing on the same basis as the
other Liens securing the Second Priority Secured Obligations are so
subordinated to the First Priority Secured Obligations under this Collateral
Trust Agreement and superpriority claims junior in all respects to the
superpriority claims granted to the First Priority Secured Parties and (y) in
the event any such Second Priority Secured Party seeks or accepts adequate
protection in accordance with clause (x) above and such adequate
protection is granted in the form of additional collateral, then such Second
Priority Secured Party agrees that the First Priority Secured Parties shall
also be granted a senior Lien on such additional collateral as security for the
First Priority Secured Obligations and any such DIP Financing and that any Lien
on such additional collateral securing the Second Priority Secured Obligations
shall be subordinated to the Liens on such collateral securing the First
Priority Secured Obligations and any such DIP Financing (and all Obligations
relating thereto) and any other Liens granted to the First Priority Secured
Parties as adequate protection, with such subordination to be on the same terms
that the other Liens securing the Second Priority Secured Obligations are
subordinated to the Liens securing such First Priority Secured Obligations
under this Collateral Trust Agreement. 
The Second Priority Secured Parties agree that except as expressly set
forth in this subsection none of them shall seek or accept adequate protection
without the prior written consent of the Majority First Priority Secured
Parties (to the extent there are any First Priority Secured Parties);


 


46














 


(h)           If any First
Priority Secured Party is required in any Insolvency Proceeding or otherwise to
disgorge, turn over or otherwise pay to the estate of any Grantor, because such
amount was avoided or ordered to be paid or disgorged for any reason, including
without limitation because it was found to be a fraudulent or preferential
transfer, any amount (a “Recovery”), whether received as proceeds of
security, enforcement of any right of set-off or otherwise, then the First
Priority Secured Obligations shall be reinstated to the extent of such Recovery
and deemed to be outstanding as if such payment had not occurred and the
payment in full of the First Priority Secured Obligations shall be deemed not
to have occurred.  If this Collateral
Trust Agreement shall have been terminated prior to such Recovery, this
Collateral Trust Agreement shall be reinstated in full force and effect, and
such prior termination shall not diminish, release, discharge, impair or
otherwise affect the obligations of the parties hereto.  The Second Priority Secured Parties agree that
none of them shall be entitled to benefit from any avoidance action affecting
or otherwise relating to any distribution or allocation made in accordance with
this Collateral Trust Agreement, whether by preference or otherwise, it being
understood and agreed that the benefits of such avoidance action otherwise
allocable to them shall instead be allocated and turned over for application in
accordance with the priorities set forth in this Collateral Trust Agreement;


 


(i)            No such Second
Priority Secured Party shall, in an Insolvency Proceeding or otherwise, oppose
any sale or disposition of any assets of any Grantor that is supported by the
First Priority Agent, and each such Second Priority Secured Party will be deemed
to have consented under Section 363 of the Bankruptcy Code (and otherwise) to
any sale supported by the First Priority Agent and to have released its Liens
on such assets; provided that the net proceeds of such sale shall have
been applied to the Secured Obligations in accordance with subsection 3.4;


 


(j)            Each such Second
Priority Secured Party acknowledges and agrees that because of, among other
things, their differing rights in the Collateral, the Second Priority Secured
Obligations are fundamentally different from the First Priority Secured
Obligations and must be separately classified in any plan of reorganization
proposed or adopted in an Insolvency 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 First Priority Secured Parties and the Second Priority
Secured Parties in respect of the Collateral constitute only one secured claim
(rather than separate classes of senior and junior secured claims), then the
Second Priority Secured Parties hereby acknowledge and agree that 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 Second Priority
Secured Parties), the First Priority Secured Parties 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 in respect of
Post-Petition Interest before any distribution is made in respect of the claims
held by the Second Priority Secured Parties, with the Second Priority Secured
Parties hereby acknowledging and agreeing to turn over to the First Priority
Secured Parties amounts otherwise received or receivable by them to the extent
necessary to effectuate the intent 


 


47

















 


of
this sentence, even if such turnover has the effect of reducing the claim or
recovery of the Second Priority Secured Parties);


 


(k)           To the extent that a
Second Priority Secured Party has not voted its claim with respect to the
Second Priority Secured Obligations in any Insolvency Proceeding on any
proposed plan of reorganization prior to the date which is 10 days before the
expiration of the time to vote such claim, the Collateral Trustee may vote such
claim on behalf of such Second Priority Secured Party at the direction of the
Controlling Party;


 


(l)            No such Second
Priority Secured Party shall oppose or seek to challenge any claim by any First
Priority Secured Party for allowance in any Insolvency Proceeding of
Post-Petition Interest, fees or expenses in respect of any First Priority
Secured Obligation.  No First Priority
Secured Party shall oppose or seek to challenge any claim by any Second
Priority Secured Party for the accrual (but not payment) in any Insolvency Proceeding
of Post-Petition Interest;


 


(m)          No such Second
Priority Secured Party shall seek relief from the automatic stay as provided in
Section 362 of the Bankruptcy Code or any similar provision of any applicable
Bankruptcy Law or any other stay in respect of the Collateral;


 


(n)           Nothing contained
herein shall prohibit or in any way limit any First Priority Secured Party from
objecting in any Insolvency Proceeding or otherwise to any action taken by any
Second Priority Secured Party, including the seeking by any Second Priority
Secured Party of adequate protection (except as provided in subsection 8.1(g))
or the asserting by any Second Priority Secured Party of any of its rights and
remedies under any Second Priority Loan Document or Second Priority Additional
Debt Document in respect of Second Priority Secured Obligations, the Trust
Security Documents or otherwise;


 


(o)           This Collateral
Trust Agreement, which the parties hereto expressly acknowledge is a “subordination
agreement” under section 510(a) of the Bankruptcy Code, shall be effective
before, during and after the commencement of an Insolvency Proceeding;


 


(p)           So long as the First
Priority Secured Obligations or commitments in respect thereof have not been
paid or terminated in full, whether or not any Insolvency Proceeding has been
commenced by or against the Company or any Grantor, any Collateral or proceeds
thereof received by any Second Priority Agent or any Second Priority Secured
Party in connection with the exercise of any right or remedy (including
set-off) relating to the Collateral, or pursuant to subsection 3.4 hereof,
shall be segregated and held in trust and forthwith paid over to the First
Priority Agent for the benefit of the First Priority Secured Parties in the
same form as received;


 


(q)           If, prior to
the payment in full of the First Priority Secured Obligations, any such Second
Priority Secured Party receives any Post-Petition Securities on account of any
Second Priority Secured Obligations in any Insolvency Proceeding and such
Post-Petition Securities are secured by any Lien upon any property of any
reorganized debtor 


 


48

















 


which
is also subject to Liens securing Post-Petition Securities received on account
of any First Priority Secured Obligations in such Insolvency Proceedings, such
Liens shall be junior and subordinate to the Liens securing Post-Petition
Securities received on account of the First Priority Secured Obligations to the
same extent as all other Liens securing Second Priority Secured Obligations
hereunder and shall be subject to the terms of this Collateral Trust Agreement;


 


(r)            Each such
Second Priority Secured Party agrees that any First Priority Loan Document may
be amended at any time without the consent of any Second Priority Secured
Party, provided that this Collateral Trust Agreement and the Trust Security
Documents may only be amended in accordance with the terms of this Collateral
Trust Agreement;


 


(s)           Each such Second
Priority Secured Party agrees that it will not enter into, or accept the
benefit of, any security agreement or mortgage to secure the Second Priority
Secured Obligations and will not file any financing statements with respect to
its Second Priority Secured Obligations, it being understood that this
Collateral Trust Agreement and the Trust Security Documents (together with the
filings contemplated thereby) are the only such security documents permitted to
secure the Second Priority Secured Obligations; and


 


(t)            Until the First
Priority Secured Obligations have been paid in full, any Collateral, including
without limitation any such Collateral constituting Proceeds, that may be
received by any Second Priority Secured Party in violation of this Collateral
Trust Agreement shall be segregated and held in trust and promptly paid over to
the Collateral Trustee, for the benefit of the First Priority Secured Parties,
in the same form as received, with any necessary endorsements, and each Second
Priority Secured Party hereby authorizes the Collateral Trustee to make any
such endorsements as agent for any Second Priority Agent (which authorization,
being coupled with an interest, is irrevocable).


 


8.2       Junior Priority Debt.  To the extent that the Company or any Grantor
incurs any Junior Priority Additional Debt, the Junior Priority Additional Debt
Representative for, and each Junior Priority Secured Party with respect to, the
Junior Priority Additional Debt Obligations shall be bound by the following
terms and conditions:


 


(a)           Any and all Liens
now existing or hereafter created or arising in favor of any such Junior
Priority Secured Party securing the Junior Priority Additional Debt
Obligations, regardless of how acquired, whether by grant, statute, operation
of law, subrogation or otherwise, are expressly junior in priority, operation
and effect to any and all Liens now existing or hereafter created or arising in
favor of the First Priority Secured Parties securing the First Priority Secured
Obligations and the Second Priority Secured Parties securing the Second
Priority Secured Obligations, notwithstanding (i) anything to the contrary
contained in any agreement or filing to which any such Junior Priority Secured
Party may now or hereafter be a party, and regardless of the time, order or
method of grant, attachment, recording or perfection of any financing statements
or other security interests, assignments, pledges, deeds, mortgages and other
liens, charges or encumbrances or any defect or deficiency or alleged defect or
deficiency in any of the 


 


49

















 


foregoing,
(ii) any provision of the Uniform Commercial Code or any applicable law or any
agreement with respect to the First Priority Secured Obligations, the Second
Priority Secured Obligations or the Junior Priority Additional Debt Obligations
or any other circumstance whatsoever and (iii) the fact that any such Liens in
favor of any First Priority Secured Party securing any of the First Priority
Secured Obligations or in favor of any Second Priority Secured Party securing
any of the Second Priority Secured Obligations are (x) subordinated to any Lien
securing any obligation of any Grantor other than the Junior Priority
Additional Debt Obligations or (y) otherwise subordinated, voided, avoided,
invalidated or lapsed;


 


(b)           No such Junior
Priority Secured Party shall object to or contest, or support any other Person
in contesting or objecting to, in any proceeding (including without limitation,
any Insolvency Proceeding), the validity, extent, perfection, priority or
enforceability of any security interest in the Collateral granted to any First
Priority Secured Party or any Second Priority Secured Party.  Notwithstanding any failure by any First
Priority Secured Party or any Second Priority Secured Party to perfect its
security interests in the Collateral or any avoidance, invalidation or
subordination by any third party or court of competent jurisdiction of the
security interests in the Collateral granted to the First Priority Secured
Parties or the Second Priority Secured Parties, the priority and rights as
between the First Priority Secured Parties, the Second Priority Secured Parties
and the Junior Priority Secured Parties with respect to the Collateral shall be
as set forth herein;


 


(c)           No such Junior
Priority Secured Party shall, prior to the payment in full of the First
Priority Secured Obligations and the Second Priority Secured Obligations,
assert, demand, request, plead or otherwise claim the benefit of, any
marshalling, appraisal, valuation and any other right that may otherwise be
available under any applicable Requirement of Law with respect to any
Collateral to a creditor in its capacity as beneficiary of a junior lien on
such Collateral;


 


(d)           No such Junior
Priority Secured Party shall, in or in connection with any Insolvency
Proceeding, file any pleadings or motions, take any position at any hearing or
proceeding of any nature, or otherwise take any action whatsoever, in each case
in respect of any of the Collateral, including, without limitation, with
respect to the determination of any Liens or claims held by any First Priority
Secured Party or any Second Priority Secured Party or the value of any claims
of such parties under Section 506(a) of the Bankruptcy Code or otherwise; provided
that any such Junior Priority Secured Party may file a proof of claim in an Insolvency
Proceeding, subject to the limitations contained in this Collateral Trust
Agreement and only if consistent with the terms and the limitations on such
Junior Priority Secured Party imposed hereby;


 


(e)           If any Grantor
becomes subject to any Insolvency Proceeding, each of the Secured Parties
hereunder (subject, in the case of the Second Priority Secured Parties, to
subsection 8.1(e) hereunder) shall retain their rights to seek to provide any
DIP Financing to any such Grantor, and to object (subject to the provisions of
this subsection (e) and subsection 8.1(e) hereunder) to any such proposal for
DIP Financing. If any Grantor becomes subject to any Insolvency Proceeding, and
if the Majority First Priority Secured 


 


50

















 


Parties
(to the extent there are any First Priority Secured Parties) and the Majority
Second Priority Secured Parties (to the extent there are any Second Priority
Secured Parties) desire to consent (or not object) to the use of cash collateral
under the Bankruptcy Code or to provide any DIP Financing to any Grantor or to
consent (or not object) to the provision of any DIP Financing to any Grantor,
whether or not proceeds of any such DIP Financing are being used to Refinance
all or any portion of the First Priority Secured Obligations or the Second
Priority Secured Obligations, then each such Junior Priority Secured Party (i) will
be deemed to have consented to, and will raise no objection to, nor support any
other Person objecting to, the use of such cash collateral or such DIP
Financing, (ii) will not request or accept adequate protection or any other
relief in connection with the use of such cash collateral or such DIP Financing
except as set forth in subsection 8.2(g) below and (iii) will subordinate (and
will be deemed hereunder to have subordinated) its Junior Priority Additional
Debt Obligations (x) to such DIP Financing on the same terms as the First
Priority Secured Obligations and Second Priority Secured Obligations are
subordinated thereto (and such subordination will not alter in any manner the
terms of this Collateral Trust Agreement) or, to the extent the proceeds of
such DIP Financing refinance all or any portion of the First Priority Secured
Obligations, on the same terms as the Second Priority Secured Obligations are
subordinated to the First Priority Secured Obligations pursuant to this
Collateral Trust Agreement, (y) to any adequate protection provided to the
First Priority Secured Parties or the Second Priority Secured Parties and (z) to
any “carve-out” agreed to by the First Priority Agent or the Second Priority
Agents, and (iv) agrees that notice received two calendar days prior to the
entry of an order approving such usage of cash collateral or approving such
financing shall be adequate notice;


 


(f)            No such Junior
Priority Secured Party will seek relief from the automatic stay or from any
other stay in any Insolvency Proceeding or take any action in derogation
thereof, in each case in respect of any Collateral, without the prior written
consent of the Majority First Priority Secured Parties (to the extent there are
any First Priority Secured Parties) and the Majority Second Priority Secured
Parties (to the extent there are any Second Priority Secured Parties);


 


(g)           No such Junior
Priority Secured Party shall object to, contest, or support any other Person
objecting to or contesting, (i) any request by any First Priority Secured Party
or any Second Priority Secured Party for adequate protection or any adequate
protection provided to any First Priority Secured Party or Second Priority
Secured Party, (ii) any objection by any First Priority Secured Party or Second
Priority Secured Party to any motion, relief, action or proceeding based on a
claim of a lack of adequate protection or (iii) the payment of interest, fees,
expenses or other amounts to any First Priority Secured Party or any Second
Priority Secured Party under Section 506(b) or 506(c) of the Bankruptcy Code or
otherwise.  Notwithstanding anything
contained in this subsection (but subject to all other provisions of this
Collateral Trust Agreement), in any Insolvency Proceeding, (x) if the First
Priority Secured Parties (to the extent there are any First Priority Secured
Parties) and any Second Priority Secured Parties (to the extent there are any
Second Priority Secured Parties) are granted adequate protection consisting of
additional collateral (with replacement liens on such additional collateral)
and superpriority claims in connection with any DIP Financing or use of cash collateral,
and 


 


51

















 


such
First Priority Secured Parties and Second Priority Secured Parties, as the case
may be, do not object to the adequate protection being provided to them, then
in connection with any such DIP Financing or use of cash collateral such Junior
Priority Secured Parties may seek or accept adequate protection consisting
solely of a replacement Lien on the same additional collateral, subordinated to
the Liens securing the First Priority Secured Obligations, Second Priority
Secured Obligations and such DIP Financing on the same basis as the other Liens
securing the Junior Priority Additional Debt Obligations are so subordinated to
the First Priority Secured Obligations and Second Priority Secured Obligations
under this Collateral Trust Agreement and superpriority claims junior in all
respects to the superpriority claims granted to the First Priority Secured
Parties and the Second Priority Secured Parties and (y) in the event any such
Junior Priority Secured Party seeks or accepts adequate protection in
accordance with clause (x) above and such adequate protection is granted in the
form of additional collateral as contemplated by clause (x) above, then such
Junior Priority Secured Party agrees that the First Priority Secured Parties
and the Second Priority Secured Parties shall also be granted a senior Lien on
such additional collateral as security for the First Priority Secured
Obligations and the Second Priority Secured Obligations, respectively, and any
such DIP Financing and that any Lien on such additional collateral securing the
Junior Priority Additional Debt Obligations shall be subordinated to the Liens
on such collateral securing the First Priority Secured Obligations, the Second
Priority Secured Obligations and any such DIP Financing (and all Obligations
relating thereto) and any other Liens granted to the First Priority Secured
Parties or the Second Priority Secured Parties as adequate protection, with
such subordination to be on the same terms that the other Liens securing the
Junior Priority Additional Debt Obligations are subordinated to the Liens
securing such First Priority Secured Obligations and Second Priority Secured
Obligations under this Collateral Trust Agreement.  The Junior Priority Secured Parties agree
that except as expressly set forth in this subsection none of them shall seek
or accept adequate protection without the prior written consent of the Majority
First Priority Secured Parties (to the extent there are any First Priority
Secured Parties) and the Majority Second Priority Secured Parties (to the
extent there are any Second Priority Secured Parties);


 


(h)           If any First
Priority Secured Party or Second Priority Secured Party is required in any
Insolvency Proceeding or otherwise to disgorge, turn over or otherwise pay to
the estate of any Grantor, because such amount was avoided or ordered to be
paid or disgorged for any reason, including without limitation because it was
found to be a fraudulent or preferential transfer, any amount (a “Senior
Recovery”), whether received as proceeds of security, enforcement of any
right of set-off or otherwise, then the First Priority Secured Obligations or
Second Priority Secured Obligations, as the case may be, shall be reinstated to
the extent of such Senior Recovery and deemed to be outstanding as if such
payment had not occurred and the payment in full of the First Priority Secured
Obligations or Second Priority Secured Obligations, as the case may be, shall
be deemed not to have occurred.  If this
Collateral Trust Agreement shall have been terminated prior to such Senior
Recovery, this Collateral Trust Agreement shall be reinstated in full force and
effect, and such prior termination shall not diminish, release, discharge,
impair or otherwise affect the obligations of the parties hereto.  The Junior Priority Secured Parties agree
that none of them shall be entitled to benefit from any avoidance action
affecting or otherwise relating to any distribution or allocation made in
accordance with this 


 


52

















 


Collateral
Trust Agreement, whether by preference or otherwise, it being understood and
agreed that the benefits of such avoidance action otherwise allocable to them
shall instead be allocated and turned over for application in accordance with
the priorities set forth in this Collateral Trust Agreement;


 


(i)            No such Junior
Priority Secured Party shall, in an Insolvency Proceeding or otherwise, oppose
any sale or disposition of any assets of any Grantor that is supported by each
Holder Representative in respect of First Priority Secured Obligations and
Second Priority Secured Obligations, and each such Junior Priority Secured
Party will be deemed to have consented under Section 363 of the Bankruptcy Code
(and otherwise) to any sale supported by each Holder Representative in respect
of First Priority Secured Obligations and Second Priority Secured Obligations
and to have released its Liens on such assets; provided that the net
proceeds of such sale shall have been applied to the Secured Obligations in
accordance with subsection 3.4;


 


(j)            Each such Junior
Priority Secured Party acknowledges and agrees that because of, among other
things, their differing rights in the Collateral, the Junior Priority Additional
Debt Obligations are fundamentally different from the First Priority Secured
Obligations and Second Priority Secured Obligations and must be separately
classified in any plan of reorganization proposed or adopted in an Insolvency
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 First Priority Secured Parties, the Second
Priority Secured Parties and the Junior Priority Secured Parties in respect of
the Collateral constitute only one secured claim (rather than separate classes
of senior and junior secured claims), then the Junior Priority Secured Parties
hereby acknowledge and agree that 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 Junior Priority Secured Parties), the First Priority
Secured Parties and the Second Priority Secured Parties 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 in respect of
Post-Petition Interest before any distribution is made in respect of the claims
held by the Junior Priority Secured Parties, with the Junior Priority Secured
Parties hereby acknowledging and agreeing to turn over to the First Priority
Secured Parties or Second Priority Secured Parties, as the case may be, amounts
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 Junior Priority Secured Parties;


 


(k)           To the extent that a
Junior Priority Secured Party has not voted its claim with respect to the
Junior Priority Additional Debt Obligations in any Insolvency Proceeding on any
proposed plan of reorganization prior to the date which is 10 days before the
expiration of the time to vote such claim, the Collateral Trustee may vote such
claim on behalf of such Junior Priority Secured Party at the direction of the
Controlling Party;


 


53

















 


(l)            No such Junior
Priority Secured Party shall oppose or seek to challenge any claim by any First
Priority Secured Party or any Second Priority Secured Party for allowance in
any Insolvency Proceeding of Post-Petition Interest, fees or expenses in
respect of any First Priority Secured Obligation or Second Priority Secured
Obligations.  No First Priority Secured
Party or Second Priority Secured Party shall oppose or seek to challenge any
claim by any Junior Priority Secured Party for the accrual (but not payment) in
any Insolvency Proceeding of Post-Petition Interest;


 


(m)          No such Junior
Priority Secured Party shall seek relief from the automatic stay as provided in
Section 362 of the Bankruptcy Code or any similar provision of any applicable
Bankruptcy Law or any other stay in respect of the Collateral;


 


(n)           Nothing
contained herein shall prohibit or in any way limit any First Priority Secured
Party or Second Priority Secured Party from objecting in any Insolvency
Proceeding or otherwise to any action taken by any Junior Priority Secured
Party, including the seeking by any Junior Priority Secured Party of adequate
protection (except as provided in subsection 8.2(g)) or the asserting by any
Junior Priority Secured Party of any of its rights and remedies under any
Junior Priority Additional Debt Document in respect of Junior Priority
Additional Debt Obligations, the Trust Security Documents or otherwise;


 


(o)           This Collateral
Trust Agreement, which the parties hereto expressly acknowledge is a “subordination
agreement” under section 510(a) of the Bankruptcy Code, shall be effective
before, during and after the commencement of an Insolvency Proceeding;


 


(p)           So long as the First
Priority Secured Obligations, Second Priority Secured Obligations or
commitments in respect of either thereof have not been paid or terminated in
full, whether or not any Insolvency Proceeding has been commenced by or against
the Company or any Grantor, any Collateral or proceeds thereof received by any
Junior Priority Additional Debt Representative or any Junior Priority Secured
Party in connection with the exercise of any right or remedy (including
set-off) relating to the Collateral, or pursuant to subsection 3.4 hereof,
shall be segregated and held in trust and forthwith paid over to (i) the First
Priority Agent for the benefit of the First Priority Secured Parties in the
same form as received so long as the First Priority Secured Obligations or
commitments in respect thereof have not been paid or terminated in full or (ii)
to the extent clause (i) is not applicable, to the Second Priority Agents for
the benefit of the Second Priority Secured Parties in the same form as received
so long as the Second Priority Secured Obligations or commitments in respect
thereof have not been paid or terminated in full;


 


(q)           If, prior to
the payment in full of the First Priority Secured Obligations and Second
Priority Secured Obligations, any such Junior Priority Secured Party receives
any Post-Petition Securities on account of any Junior Priority Additional Debt
Obligations in any Insolvency Proceeding and such Post-Petition Securities are
secured by any Lien upon any property of any reorganized debtor which is also
subject to Liens securing Post-Petition Securities received on account of any
First Priority Secured Obligations or any 


 


54

















 


Second
Priority Secured Obligations in such Insolvency Proceedings, such Liens shall
be junior and subordinate to the Liens securing Post-Petition Securities
received on account of the First Priority Secured Obligations or the Second
Priority Secured Obligations (and if to both in the order of their respective
priorities) to the same extent as all other Liens securing Junior Priority
Additional Debt Obligations hereunder and shall be subject to the terms of this
Collateral Trust Agreement;


 


(r)            Each such
Junior Priority Secured Party agrees that any First Priority Loan Document,
Second Priority Loan Document and Second Priority Additional Debt Document may be amended
at any time without the consent of any Junior Priority Secured Party, provided
that this Collateral Trust Agreement and the Trust Security Documents may only
be amended in accordance with the terms of this Collateral Trust Agreement;


 


(s)           Each such Junior
Priority Secured Party agrees that it will not enter into, or accept the
benefit of, any security agreement or mortgage to secure the Junior Priority
Additional Debt Obligations and will not file any financing statements with
respect to its Junior Priority Additional Debt Obligations, it being understood
that this Collateral Trust Agreement and the Trust Security Documents (together
with the filings contemplated thereby) are the only such security documents
permitted to secure the Junior Priority Additional Debt Obligations; and


 


(t)            Until the First
Priority Secured Obligations and Second Priority Secured Obligations have been
paid in full, any Collateral, including without limitation any such Collateral
constituting Proceeds, that may be received by any Junior Priority Secured
Party in violation of this Collateral Trust Agreement shall be segregated and
held in trust and promptly paid over to the Collateral Trustee, for the benefit
of the First Priority Secured Parties and Second Priority Secured Parties, in
the same form as received, with any necessary endorsements, and each Junior
Priority Secured Party hereby authorizes the Collateral Trustee to make any
such endorsements as agent for the Junior Priority Additional Debt
Representative (which authorization, being coupled with an interest, is
irrevocable).


 


8.3       First Priority Obligations Unconditional.  All rights and interests of the First
Priority Secured Parties hereunder, and all agreements and obligations of the
Second Priority Secured Parties and the Junior Priority Secured Parties (and,
to the extent applicable, the Grantors) hereunder, shall remain in full force
and effect irrespective of:


 


(i)            any lack of
validity or enforceability of any First Priority Loan Document;


 


(ii)           any change in the
time, place or manner of payment of, or in any other term of, all or any
portion of the First Priority Secured Obligations, or any amendment, waiver or
other modification, whether by course of conduct or otherwise, or any
refinancing, replacement, refunding or restatement of any First Priority Loan
Document;


 


(iii)          prior to the
payment in full of the First Priority Secured Obligations, any exchange,
release, voiding, avoidance or non-perfection of any Lien in any Collateral or 


 


55

















 


any
other collateral, or any release, amendment, waiver or other modification,
whether by course of conduct or otherwise, or any Refinancing of all or any
portion of the First Priority Secured Obligations or any guarantee or guaranty
thereof; or


 


(iv)          any other
circumstances that otherwise might constitute a defense available to, or a
discharge of, any Grantor in respect of the First Priority Secured Obligations
or any Second Priority Secured Party or any Junior Priority Secured Party in
respect of this Collateral Trust Agreement.


 


8.4       Second Priority Obligations Unconditional.  All rights and interests of the Second
Priority Secured Parties hereunder, and all agreements and obligations of the
First Priority Secured Parties and the Junior Priority Secured Parties (and, to
the extent applicable, the Grantors) hereunder, shall remain in full force and
effect irrespective of:


 


(i)            any lack of
validity or enforceability of any Second Priority Loan Document or Second
Priority Additional Debt Document;


 


(ii)           any change in the
time, place or manner of payment of, or in any other term of, all or any
portion of the Second Priority Secured Obligations, or any amendment, waiver or
other modification, whether by course of conduct or otherwise, or any
refinancing, replacement, refunding or restatement of any Second Priority Loan
Document or Second Priority Additional Debt Document;


 


(iii)          prior to the
payment in full of the Second Priority Secured Obligations, any exchange,
release, voiding, avoidance or non-perfection of any Lien in any Collateral or
any other collateral, or any release, amendment, waiver or other modification,
whether by course of conduct or otherwise, or any Refinancing of all or any
portion of the Second Priority Secured Obligations or any guarantee or guaranty
thereof; or


 


(iv)          any other
circumstances that otherwise might constitute a defense available to, or a
discharge of, any Grantor in respect of the Second Priority Secured Obligations
or any First Priority Secured Party or Junior Priority Secured Party in respect
of this Collateral Trust Agreement.


 


8.5       Information Concerning Financial Condition of the Grantors.  Each Secured Party hereby assumes
responsibility for keeping itself informed of the financial condition of the
Company and each of the Grantors and all other circumstances bearing upon the
risk of nonpayment of the First Priority Secured Obligations or the Second
Priority Secured Obligations or the Junior Priority Additional Debt
Obligations.  No Secured Party shall have
any duty to advise any other Secured Party of information known to it regarding
such condition or any such circumstances. 
In the event any Secured Party, in its sole discretion, undertakes at
any time or from time to time to provide any information to any other Secured
Party, it shall be under no obligation (i) to provide any such information to
such other Secured Party or any other party on any subsequent occasion, (ii) to
undertake any investigation not a part of its regular business routine, or (iii)
to disclose any other information.


 


[remainder of page intentionally left blank;
signature pages follow]


 


56

















 


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


 


 


	
   

  	
  iSTAR
  FINANCIAL INC.

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
   

  	
  /s/
  GEOFFREY M. DUGAN

  
	
   

  	
   

  	
   

  	
  Name:

  	
  Geoffrey
  M. Dugan

  
	
   

  	
   

  	
   

  	
  Title:

  	
  Secretary

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  iSTAR
  TARA HOLDINGS LLC

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
   

  	
  /s/
  GEOFFREY M. DUGAN

  
	
   

  	
   

  	
   

  	
  Name:

  	
  Geoffrey
  M. Dugan

  
	
   

  	
   

  	
   

  	
  Title:

  	
  Secretary

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  iSTAR
  TARA LLC

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
   

  	
  /s/
  GEOFFREY M. DUGAN

  
	
   

  	
   

  	
   

  	
  Name:

  	
  Geoffrey
  M. Dugan

  
	
   

  	
   

  	
   

  	
  Title:

  	
  Secretary

  



 


Collateral Trust and Intercreditor Agreement


 














 


	
   

  	
  iSTAR
  BOWLING CENTERS I LLC, a Delaware limited liability company

  
	
   

  	
  iSTAR
  BOWLING CENTERS II LLC, a Delaware limited liability company

  
	
   

  	
  iSTAR
  HQ I GENPAR, INC., a Delaware corporation

  
	
   

  	
  iSTAR
  CTL I GENPAR, INC., a Delaware corporation

  
	
   

  	
  ASTAR
  FRR TX1 GENPAR LLC, a Delaware limited liability company

  
	
   

  	
  TRINET ESSENTIAL FACILITIES XXVII, INC., a
  Maryland corporation

  
	
   

  	
  TRINET ESSENTIAL FACILITIES X, INC., a Maryland
  corporation

  
	
   

  	
  SFT
  II, INC., a Delaware corporation

  
	
   

  	
  AUTOSTAR
  F FUNDING LLC, a Delaware limited liability company

  
	
   

  	
  11TH
  AVENUE B PARTICIPANTION LLC, a Delaware limited liability company

  
	
   

  	
  MSK
  RESORT FINANCE LLC, a Delaware limited liability company

  
	
   

  	
  SFI
  I, LLC, a Delaware limited liability company

  
	
   

  	
  CTL
  I MARYLAND INC., a Delaware corporation

  
	
   

  	
  iSTAR
  BLUES LLC, a Delaware limited liability company

  
	
   

  	
  ASTAR
  G1A NH1, LLC, a Delaware limited liability company

  
	
   

  	
  FLORIDA
  2005 THEATERS LLC, a Delaware limited liability company

  
	
   

  	
  iSTAR
  BOWLING CENTERS I LP, a Delaware limited partnership

  
	
   

  	
  iSTAR
  BOWLING CENTERS II LP, a Delaware limited partnership

  
	
   

  	
  iSTAR
  HQ I, L.P., a Delaware limited partnership

  
	
   

  	
  iSTAR
  CTL I, L.P., a Delaware limited partnership

  
	
   

  	
  ASTAR
  FRR TX 1 LP, a Delaware limited partnership

  
	
   

  	
  iSTAR
  COLUMBUS CIRCLE LLC, a Delaware limited liability company

  
	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
  /s/
  GEOFFREY M. DUGAN

  
	
   

  	
   

  	
   

  	
  Name:

  	
  Geoffrey
  M. Dugan

  
	
   

  	
   

  	
   

  	
  Title:

  	
  Secretary

  



 


	
   

  	
  Address
  for Notices:

  
	
   

  	
   

  
	
   

  	
  c/o
  iStar Financial Inc.

  
	
   

  	
  1114
  Avenue of the Americas

  
	
   

  	
  New
  York, NY 10036

  
	
   

  	
   

  
	
   

  	
  Attention:

  	
  Chief
  Financial Officer

  
	
   

  	
  Fax:

  	
  (212)
  930-9449

  
	
   

  	
  Telephone:

  	
  (212)
  930-9466

  
	
   

  	
  Email:

  	
  jburns@istarfinancial.com

  
	
   

  	
   

  	
   

  
	
   

  	
  with
  copy to:

  
	
   

  	
   

  	
   

  
	
   

  	
  Attention:

  	
  General
  Counsel

  
	
   

  	
  Fax:

  	
  (212)
  930-9492

  
	
   

  	
  Telephone:

  	
  (212)
  930-9406

  
	
   

  	
  Email:

  	
  nmatis@istarfinancial.com

  



 


Collateral
Trust and Intercreditor Agreement


 

















 


	
   

  	
  JPMORGAN
  CHASE BANK, N.A., 

  
	
   

  	
  as First Priority Agent

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  /s/
  CHARLES HOAGLAND

  
	
   

  	
   

  	
  Name:

  	
  Charles
  Hoagland

  
	
   

  	
   

  	
  Title:

  	
  Vice
  President

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  Address
  for Notices:

  
	
   

  	
   

  
	
   

  	
  383
  Madison Avenue, 40th Floor

  
	
   

  	
  New
  York, NY 10017

  
	
   

  	
   

  	
   

  
	
   

  	
  Attention:

  	
  Charles
  Hoagland

  
	
   

  	
  Fax:

  	
  646
  328 3041

  
	
   

  	
  Telephone:

  	
  212
  622 8170

  
	
   

  	
  Email:

  	
  charles.hoagland@jpmorgan.com

  
					



 


Collateral
Trust and Intercreditor Agreement


 

















 


	
   

  	
  JPMORGAN CHASE BANK, N.A., 

  
	
   

  	
  as 2011 Second Priority Agent 

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  /s/
  CHARLES HOAGLAND

  
	
   

  	
   

  	
  Name:

  	
  Charles
  Hoagland

  
	
   

  	
   

  	
  Title:

  	
  Vice
  President

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  Address
  for Notices:

  
	
   

  	
   

  
	
   

  	
  383
  Madison Avenue, 40th Floor

  
	
   

  	
  New
  York, NY 10017

  
	
   

  	
   

  	
   

  
	
   

  	
  Attention:

  	
  Charles
  Hoagland

  
	
   

  	
  Fax:

  	
  646
  328 3041

  
	
   

  	
  Telephone:

  	
  212
  622 8170

  
	
   

  	
  Email:

  	
  charles.hoagland@jpmorgan.com

  
					



 


Collateral
Trust and Intercreditor Agreement


 

















 


	
   

  	
  JPMORGAN
  CHASE BANK, N.A.,

  
	
   

  	
  as 2012 Second Priority Agent

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  /s/
  CHARLES HOAGLAND

  
	
   

  	
   

  	
  Name:

  	
  Charles
  Hoagland

  
	
   

  	
   

  	
  Title:

  	
  Vice
  President

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  Address
  for Notices:

  
	
   

  	
   

  
	
   

  	
  383
  Madison Avenue, 40th Floor

  
	
   

  	
  New
  York, NY 10017

  
	
   

  	
   

  	
   

  
	
   

  	
  Attention:

  	
  Charles
  Hoagland

  
	
   

  	
  Fax:

  	
  646
  328 3041

  
	
   

  	
  Telephone:

  	
  212
  622 8170

  
	
   

  	
  Email:

  	
  charles.hoagland@jpmorgan.com

  
					



 


Collateral
Trust and Intercreditor Agreement


 

















 


	
   

  	
  THE
  BANK OF NEW YORK MELLON TRUST

  COMPANY, N.A., 

  
	
   

  	
  as Collateral Trustee

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  /s/
  MARY L. COLLIER

  
	
   

  	
   

  	
  Name:

  	
  Mary
  L. Collier

  
	
   

  	
   

  	
  Title:

  	
  Vice
  President

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  Address
  for Notices:

  
	
   

  	
   

  
	
   

  	
  The
  Bank of New York Mellon Trust Company, N.A.

  
	
   

  	
  2
  N. LaSalle Street, Suite 1020

  
	
   

  	
  Chicago,
  IL 60602

  
	
   

  	
  Attention:

  	
  Structured
  Finance

  
	
   

  	
  Fax:

  	
  (312)
  827-8562

  
	
   

  	
  Telephone:

  	
  (312)
  827-8538

  
	
   

  	
  Email:

  	
  mary.collier@bnymellon.com

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  with
  a copy to:

  
	
   

  	
   

  	
   

  
	
   

  	
  The
  Bank of New York Mellon Trust Company, N.A.

  
	
   

  	
  2220
  Chemsearch Blvd., Suite 150

  
	
   

  	
  Irving,
  TX 75062

  
	
   

  	
  Attention:

  	
  Document
  Custodian

  
	
   

  	
   

  	
  Jeffery
  Cormier

  
	
   

  	
  Fax:

  	
  (972)
  785-3501

  
	
   

  	
  Telephone:

  	
  (972)
  785-5355

  
	
   

  	
  Email:

  	
  jeffery.cormier@bnymellon.com

  
					



 


Collateral
Trust and Intercreditor Agreement


 














 


ANNEX
I


 


Trust Security Documents


 


1.             Security Agreement.


 


2.             Deposit Account Control Agreements.


 


3.             Securities Account Control Agreement.


 


4.             Mortgages.


 

















 


EXHIBIT
A


 


FORM OF NOTICE OF EVENT OF DEFAULT


 


[Date]


 


To:          The Bank of New York Mellon
Trust Company, N.A., as Collateral Trustee


 


Re:          Collateral Trust Agreement,
dated as of March 13, 2009, among iStar Financial Inc., iStar Tara
Holdings LLC (“Tara Holdco”), iStar Tara LLC (“Tara”), certain
other subsidiaries of Tara Holdco, The Bank of New York Mellon Trust Company,
N.A., as Collateral Trustee, and the other parties thereto (the “Collateral
Trust Agreement”).


 


An Event of Default has occurred and is
continuing under the provisions of the [First Priority Credit Agreement] [2011
Second Priority Credit Agreement][2012 Second Priority Agreement][Second
Priority Additional Debt Document][Junior Priority Additional Debt Document].


 


Terms defined in the Collateral Trust
Agreement and used herein shall have the meanings given to them in the
Collateral Trust Agreement.


 


	
   

  	
  [JPMorgan
  Chase Bank, N.A.,

  
	
   

  	
  as First Priority Agent]

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  
	
   

  	
   

  	
   

  
	
   

  	
  [JPMorgan
  Chase Bank, N.A.,

  
	
   

  	
  as 2011 Second Priority Agent]

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  
	
   

  	
   

  	
   

  
	
   

  	
  [JPMorgan
  Chase Bank, N.A.,

  
	
   

  	
  as 2012 Second Priority Agent]

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  
	
  cc:

  	
  c/o
  iStar Financial Inc.

  
	
   

  	
  1114
  Avenue of the Americas

  
	
   

  	
  New
  York, NY 10036

  
	
   

  	
  Attention:

  	
  Chief
  Financial Officer

  
	
   

  	
  Fax:

  	
  (212)
  930-9449

  
	
   

  	
  Telephone:

  	
  (212)
  930-9466

  
	
   

  	
  Email:

  	
  jburns@istarfinancial.com

  
					



 

















 


	
   

  	
  Attention:

  	
  General
  Counsel

  
	
   

  	
  Fax:

  	
  (212)
  930-9492

  
	
   

  	
  Telephone:

  	
  (212)
  930-9406

  
	
   

  	
  Email:

  	
  nmatis@istarfinancial.com

  



 


Collateral Trust and
Intercreditor Agreement


 

















 


EXHIBIT
B


 


FORM OF JOINDER AGREEMENT


 


JOINDER AGREEMENT, dated as of
                
    , 200    , made by
                                  ,
a                                   
(the “New Grantor”) in favor of The Bank of New York Mellon Trust
Company, N.A., as Collateral Trustee under the Collateral Trust Agreement
referred to below (in such capacity, the “Collateral Trustee”).   All capitalized terms not defined herein
shall have the meanings ascribed to them in the Collateral Trust Agreement.


 


W I T N E S S E T H:


 


WHEREAS, iStar Financial Inc., a Maryland
corporation, iStar Tara Holdings LLC, a Delaware limited liability company (“Tara
Holdco”), iStar Tara LLC, a Delaware limited liability company (“Tara”)
and certain other subsidiaries of Tara Holdco (Tara Holdco, Tara and such other
subsidiaries, collectively referred to as the “Grantors”) and the Collateral
Trustee and certain other parties have entered into the Collateral Trust
Agreement, dated as of March 13, 2009 (as amended, supplemented or
otherwise modified from time to time, the “Collateral Trust Agreement”);
and


 


WHEREAS, the New Grantor desires to become a party
to the Collateral Trust Agreement in accordance with subsection 6.12 of the
Collateral Trust Agreement;


 


NOW, THEREFORE, IT IS AGREED:


 


1.             Collateral Trust Agreement. 
By executing and delivering this Joinder Agreement, the New Grantor
hereby becomes a party to the Collateral Trust Agreement as a “Grantor”
thereunder, and without limiting the foregoing, hereby expressly assumes all
obligations and liabilities of a “Grantor” thereunder.


 


2.             Governing Law.  This Joinder
Agreement shall be governed by, and construed and interpreted in accordance
with, the law of the State of New York.


 


3.             Effectiveness.  This Joinder
Agreement shall become effective upon receipt by the Collateral Trustee and
Controlling Party of (i) executed signature pages hereto and (ii) the
documents, instruments, agreements, and certificates referred to in subsection
6.12 of the Collateral Trust Agreement.


 


IN WITNESS WHEREOF, the undersigned has caused this
Joinder Agreement to be duly executed and delivered as of the date first above
written.


 


 


	
   

  	
  [NEW
  GRANTOR]

  
	
   

  	
   

  
	
   

  	
   

  	
  By:

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
   

  	
  Title:

  
	
   

  	
   

  	
   

  	
  Address
  for Notices:

  
	
   

  	
   

  	
   

  	
  Fax:

  



 














 


EXHIBIT
C


 


FORM OF NOTICE OF DESIGNATION OF
ADDITIONAL DEBT


 


[Date]


 


To:          The Bank of New York Mellon
Trust Company, N.A., as Collateral Trustee


 


Re:          Collateral Trust Agreement,
dated as of March 13, 2009, among iStar Financial Inc., iStar Tara
Holdings LLC (“Tara Holdco”), iStar Tara LLC, certain other subsidiaries of
Tara Holdco, The Bank of New York Mellon Trust Company, N.A., as Collateral
Trustee, and the other parties thereto (the “Collateral Trust Agreement”).


 


Pursuant
to subsection 7.1 of the Collateral Trust Agreement, the Company hereby
designates [identify obligations] as “Additional Debt” under the Collateral
Trust Agreement.  The “Additional Debt
Representative” with respect to such Additional Debt shall be
                                .


 


Such
Additional Debt shall be classified as [Second Priority/Junior Priority]
Secured Obligations.


 


The
designation of such obligations as provided above is permitted or is not
prohibited, as the case may be, by the First Priority Credit Agreement, Second
Priority Credit Agreements and any existing Additional Debt Documents.


 


Terms
defined in the Collateral Trust Agreement and used herein shall have the
meanings given to them in the Collateral Trust Agreement.


 


 


	
   

  	
  iSTAR
  FINANCIAL INC.

  
	
   

  	
   

  
	
   

  	
   

  	
  By:

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  
				



 

















 


EXHIBIT
D


 


FORM OF NOTICE OF CANCELLATION


 


[Date]


 


To:          The Bank of New York Mellon Trust Company, N.A., as
Collateral Trustee


 


Re:           Collateral Trust Agreement, dated as of March 13,
2009, among iStar Financial Inc., iStar Tara Holdings LLC (“Tara Holdco”),
iStar Tara LLC, certain other subsidiaries of Tara Holdco, The Bank of New York
Mellon Trust Company, N.A., as Collateral Trustee, and the other parties
thereto (the “Collateral Trust Agreement”).


 


The [Notice of Event of Default] [Notice of Acceleration][Notice
of Foreclosure], dated as of
                                ,
pursuant to the [First Priority Credit Agreement] [2011 Second Priority Credit
Agreement][2012 Second Priority Credit Agreement][Second Priority Additional
Debt Document][Junior Priority Additional Debt Document], has been cancelled in
accordance with subsection 2.1(c) of the Collateral Trust Agreement.


 


Terms defined in the Collateral Trust
Agreement and used herein shall have the meanings given to them in the
Collateral Trust Agreement.


 


	
   

  	
  [JPMorgan
  Chase Bank, N.A.,

  
	
   

  	
  as First Priority Agent]

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  
	
   

  	
   

  	
   

  
	
   

  	
  [JPMorgan
  Chase Bank, N.A.,

  
	
   

  	
  as 2011 Second Priority Agent]

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  
	
   

  	
   

  	
   

  
	
   

  	
  [JPMorgan
  Chase Bank, N.A.,

  
	
   

  	
  as 2012 Second Priority Agent]

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  
	
  cc:

  	
  c/o
  iStar Financial Inc.

  
	
   

  	
  1114
  Avenue of the Americas

  
	
   

  	
  New
  York, NY 10036

  
	
   

  	
  Attention:

  	
  Chief
  Financial Officer

  
					



 

















 


	
   

  	
  Fax:

  	
  (212)
  930-9449

  
	
   

  	
  Telephone:

  	
  (212)
  930-9466

  
	
   

  	
  Email:

  	
  jburns@istarfinancial.com

  
	
   

  	
   

  	
   

  
	
   

  	
  Attention:

  	
  General
  Counsel

  
	
   

  	
  Fax:

  	
  (212)
  930-9492

  
	
   

  	
  Telephone:

  	
  (212)
  930-9406

  
	
   

  	
  Email:

  	
  nmatis@istarfinancial.com

  



 

















 


EXHIBIT
E


 


FORM OF NOTICE OF ACCELERATION


 


[Date]


 


To:          The Bank of New York Mellon
Trust Company, N.A., as Collateral Trustee


 


Re:          Collateral Trust Agreement,
dated as of March 13, 2009, among iStar Financial Inc., iStar Tara
Holdings LLC (“Tara Holdco”), iStar Tara LLC (“Tara”), certain
other subsidiaries of Tara Holdco, The Bank of New York Mellon Trust Company,
N.A., as Collateral Trustee, and the other parties thereto (the “Collateral
Trust Agreement”).


 


An Acceleration Event has occurred and is
continuing under the provisions of the [First Priority Credit Agreement] [2011
Second Priority Credit Agreement][2012 Second Priority Agreement][Second
Priority Additional Debt Document][Junior Priority Additional Debt Document].


 


Terms defined in the Collateral Trust
Agreement and used herein shall have the meanings given to them in the
Collateral Trust Agreement.


 


	
   

  	
  [JPMorgan
  Chase Bank, N.A.,

  
	
   

  	
  as First Priority Agent]

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  
	
   

  	
   

  	
   

  
	
   

  	
  [JPMorgan
  Chase Bank, N.A.,

  
	
   

  	
  as 2011 Second Priority Agent]

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  
	
   

  	
   

  	
   

  
	
   

  	
  [JPMorgan
  Chase Bank, N.A.,

  
	
   

  	
  as 2012 Second Priority Agent]

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  
	
  cc:

  	
  c/o
  iStar Financial Inc.

  
	
   

  	
  1114
  Avenue of the Americas

  
	
   

  	
  New
  York, NY 10036

  
	
   

  	
  Attention:

  	
  Chief
  Financial Officer

  
	
   

  	
  Fax:

  	
  (212)
  930-9449

  
					



 

















 


	
   

  	
  Telephone:

  	
  (212)
  930-9466

  
	
   

  	
  Email:

  	
  jburns@istarfinancial.com

  
	
   

  	
   

  	
   

  
	
   

  	
  Attention:

  	
  General
  Counsel

  
	
   

  	
  Fax:

  	
  (212)
  930-9492

  
	
   

  	
  Telephone:

  	
  (212)
  930-9406

  
	
   

  	
  Email:

  	
  nmatis@istarfinancial.com

  



 

















 


EXHIBIT
F


 


FORM OF NOTICE OF FORECLOSURE


 


[Date]


 


To:          iStar Financial Inc. 

1114 Avenue of the Americas 

New York, NY  10036


 


Attention:              Chief Financial Officer


Attention:              General Counsel


 


copy to:


 


The Bank of New York Mellon Trust Company, N.A., as
Collateral Trustee


 


Re:           Collateral Trust Agreement, dated as of March 13,
2009, among iStar Financial Inc., iStar Tara Holdings LLC (“Tara Holdco”),
iStar Tara LLC (“Tara”), certain other subsidiaries of Tara Holdco, The
Bank of New York Mellon Trust Company, N.A., as Collateral Trustee, and the
other parties thereto (the “Collateral Trust Agreement”).


 


The Controlling Party has delivered a written
direction attached hereto as Annex 1 to the Collateral Trustee instructing the
Collateral Trustee to initiate Foreclosure upon the Collateral as described
therein.


 


Terms defined in the Collateral Trust
Agreement and used herein shall have the meanings given to them in the
Collateral Trust Agreement.


 


	
   

  	
  [JPMorgan
  Chase Bank, N.A.,

  
	
   

  	
  as First Priority Agent]

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  
	
   

  	
   

  	
   

  
	
   

  	
  [JPMorgan
  Chase Bank, N.A.,

  
	
   

  	
  as 2011 Second Priority Agent]

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  
	
   

  	
   

  	
   

  
	
   

  	
  [JPMorgan
  Chase Bank, N.A.,

  
	
   

  	
  as 2012 Second Priority Agent]

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title: