Exhibit 4.1


 


THE SERVICEMASTER
COMPANY


 


and


 


the Subsidiary
Guarantors from time to time parties hereto


 


and


 


WILMINGTON TRUST
FSB

as Trustee


 






 


INDENTURE


 


DATED AS OF JULY
24, 2008


 






 


10.75%/11.50% SENIOR TOGGLE NOTES DUE 2015


 

















 


TABLE
OF CONTENTS


 


	
   

  	
   

  	
  Page

  
	
   

  	
   

  	
   

  
	
   

  	
  ARTICLE I

  	
   

  
	
   

  	
   

  	
   

  
	
  DEFINITIONS AND OTHER PROVISIONS OF GENERAL
  APPLICATION

  
	
   

  
	
  Section 101.

  	
  Definitions

  	
  1

  
	
  Section 102.

  	
  Other Definitions

  	
  43

  
	
  Section 103.

  	
  Rules of Construction

  	
  44

  
	
  Section 104.

  	
  Incorporation by Reference of
  TIA

  	
  45

  
	
  Section 105.

  	
  Conflict with TIA

  	
  45

  
	
  Section 106.

  	
  Compliance Certificates and
  Opinions

  	
  45

  
	
  Section 107.

  	
  Form of Documents
  Delivered to Trustee

  	
  46

  
	
  Section 108.

  	
  Acts of Noteholders; Record
  Dates

  	
  46

  
	
  Section 109.

  	
  Notices, etc., to Trustee and
  Company

  	
  49

  
	
  Section 110.

  	
  Notices to Holders; Waiver

  	
  49

  
	
  Section 111.

  	
  Effect of Headings and Table
  of Contents

  	
  50

  
	
  Section 112.

  	
  Successors and Assigns

  	
  50

  
	
  Section 113.

  	
  Separability Clause

  	
  50

  
	
  Section 114.

  	
  Benefits of Indenture

  	
  50

  
	
  Section 115.

  	
  Governing Law

  	
  50

  
	
  Section 116.

  	
  Legal Holidays

  	
  50

  
	
  Section 117.

  	
  No Personal Liability of
  Directors, Officers, Employees, Incorporators and Stockholders

  	
  51

  
	
  Section 118.

  	
  Exhibits and Schedules

  	
  51

  
	
  Section 119.

  	
  Counterparts

  	
  51

  
	
   

  	
   

  	
   

  
	
   

  	
  ARTICLE II

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  NOTE FORMS

  	
   

  
	
   

  	
   

  	
   

  
	
  Section 201.

  	
  Forms Generally

  	
  51

  
	
  Section 202.

  	
  Form of Trustee’s
  Certificate of Authentication

  	
  53

  
	
  Section 203.

  	
  Restrictive and Global Note
  Legends

  	
  54

  
	
   

  	
   

  	
   

  
	
   

  	
  ARTICLE III

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  THE NOTES

  	
   

  
	
   

  	
   

  	
   

  
	
  Section 301.

  	
  Title and Terms

  	
  57

  
	
  Section 302.

  	
  Denominations

  	
  59

  
	
  Section 303.

  	
  Execution, Authentication and
  Delivery and Dating

  	
  59

  
	
  Section 304.

  	
  Temporary Notes

  	
  60

  



 


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  Page

  
	
   

  	
   

  	
   

  
	
  Section 305.

  	
  Registrar and Paying Agent

  	
  60

  
	
  Section 306.

  	
  Mutilated, Destroyed, Lost
  and Stolen Notes

  	
  62

  
	
  Section 307.

  	
  Payment of Interest Rights
  Preserved

  	
  63

  
	
  Section 308.

  	
  Persons Deemed Owners

  	
  64

  
	
  Section 309.

  	
  Cancellation

  	
  64

  
	
  Section 310.

  	
  Computation of Interest

  	
  64

  
	
  Section 311.

  	
  CUSIP Numbers, ISINs, etc

  	
  64

  
	
  Section 312.

  	
  Book-Entry Provisions for
  Global Notes

  	
  65

  
	
  Section 313.

  	
  Special Transfer Provisions

  	
  67

  
	
  Section 314.

  	
  Payment of Additional
  Interest

  	
  70

  
	
   

  	
   

  	
   

  
	
   

  	
  ARTICLE IV

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  COVENANTS

  	
   

  
	
   

  	
   

  	
   

  
	
  Section 401.

  	
  Payment of Principal, Premium
  and Interest

  	
  70

  
	
  Section 402.

  	
  Maintenance of Office or
  Agency

  	
  70

  
	
  Section 403.

  	
  Money for Payments to Be Held
  in Trust

  	
  71

  
	
  Section 404.

  	
  [Reserved].

  	
  72

  
	
  Section 405.

  	
  SEC Reports

  	
  72

  
	
  Section 406.

  	
  Statement as to Default

  	
  73

  
	
  Section 407.

  	
  Limitation on Indebtedness

  	
  73

  
	
  Section 408.

  	
  [Reserved].

  	
  77

  
	
  Section 409.

  	
  Limitation on Restricted
  Payments

  	
  77

  
	
  Section 410.

  	
  Limitation on Restrictions on
  Distributions from Restricted Subsidiaries

  	
  82

  
	
  Section 411.

  	
  Limitation on Sales of Assets
  and Subsidiary Stock

  	
  84

  
	
  Section 412.

  	
  Limitation on Transactions
  with Affiliates

  	
  87

  
	
  Section 413.

  	
  Limitation on Liens

  	
  88

  
	
  Section 414.

  	
  Future Subsidiary Guarantors

  	
  89

  
	
  Section 415.

  	
  Purchase of Notes Upon a
  Change of Control

  	
  89

  
	
   

  	
   

  	
   

  
	
   

  	
  ARTICLE V

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  SUCCESSORS

  	
   

  
	
   

  	
   

  	
   

  
	
  Section 501.

  	
  When the Company
  May Merge, etc.

  	
  91

  
	
  Section 502.

  	
  Successor Company Substituted

  	
  92

  
	
   

  	
   

  	
   

  
	
   

  	
  ARTICLE VI

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  REMEDIES

  	
   

  
	
   

  	
   

  	
   

  
	
  Section 601.

  	
  Events of Default

  	
  92

  
	
  Section 602.

  	
  Acceleration of Maturity;
  Rescission and Annulment

  	
  94

  
	
  Section 603.

  	
  Other Remedies; Collection
  Suit by Trustee

  	
  95

  



 


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  Page

  
	
   

  	
   

  	
   

  
	
  Section 604.

  	
  Trustee May File Proofs
  of Claim

  	
  95

  
	
  Section 605.

  	
  Trustee May Enforce
  Claims Without Possession of Notes

  	
  95

  
	
  Section 606.

  	
  Application of Money
  Collected

  	
  95

  
	
  Section 607.

  	
  Limitation on Suits

  	
  96

  
	
  Section 608.

  	
  Unconditional Right of
  Holders to Receive Principal and Interest

  	
  96

  
	
  Section 609.

  	
  Restoration of Rights and
  Remedies

  	
  96

  
	
  Section 610.

  	
  Rights and Remedies
  Cumulative

  	
  97

  
	
  Section 611.

  	
  Delay or Omission Not Waiver

  	
  97

  
	
  Section 612.

  	
  Control by Holders

  	
  97

  
	
  Section 613.

  	
  Waiver of Past Defaults

  	
  97

  
	
  Section 614.

  	
  Undertaking for Costs

  	
  98

  
	
  Section 615.

  	
  Waiver of Stay, Extension or
  Usury Laws

  	
  98

  
	
   

  	
   

  	
   

  
	
   

  	
  ARTICLE VII

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  THE TRUSTEE

  	
   

  
	
   

  	
   

  	
   

  
	
  Section 701.

  	
  Certain Duties and
  Responsibilities

  	
  99

  
	
  Section 702.

  	
  Notice of Defaults

  	
  99

  
	
  Section 703.

  	
  Certain Rights of Trustee

  	
  100

  
	
  Section 704.

  	
  Not Responsible for Recitals
  or Issuance of Notes

  	
  101

  
	
  Section 705.

  	
  May Hold Notes

  	
  101

  
	
  Section 706.

  	
  Money Held in Trust

  	
  101

  
	
  Section 707.

  	
  Compensation and
  Reimbursement

  	
  101

  
	
  Section 708.

  	
  Conflicting Interests

  	
  102

  
	
  Section 709.

  	
  Corporate Trustee Required;
  Eligibility

  	
  102

  
	
  Section 710.

  	
  Resignation and Removal;
  Appointment of Successor

  	
  102

  
	
  Section 711.

  	
  Acceptance of Appointment by
  Successor

  	
  103

  
	
  Section 712.

  	
  Merger, Conversion,
  Consolidation or Succession to Business

  	
  104

  
	
  Section 713.

  	
  Preferential Collection of
  Claims Against the Company

  	
  104

  
	
  Section 714.

  	
  Appointment of Authenticating
  Agent

  	
  104

  
	
   

  	
   

  	
   

  
	
   

  	
  ARTICLE VIII

  	
   

  
	
   

  	
   

  	
   

  
	
  HOLDERS’ LISTS AND REPORTS BY TRUSTEE AND
  THE COMPANY

  
	
   

  	
   

  	
   

  
	
  Section 801.

  	
  The Company to Furnish
  Trustee Names and Addresses of Holders

  	
  104

  
	
  Section 802.

  	
  Preservation of Information;
  Communications to Holders

  	
  105

  
	
  Section 803.

  	
  Reports by Trustee

  	
  105

  
	
   

  	
   

  	
   

  
	
   

  	
  ARTICLE IX

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  AMENDMENT, SUPPLEMENT OR WAIVER

  	
   

  
	
   

  	
   

  	
   

  
	
  Section 901.

  	
  Without Consent of Holders

  	
  106

  



 


iii

















 


	
   

  	
   

  	
  Page

  
	
   

  	
   

  	
   

  
	
  Section 902.

  	
  With Consent of Holders

  	
  106

  
	
  Section 903.

  	
  Execution of Amendments,
  Supplements or Waivers

  	
  107

  
	
  Section 904.

  	
  Revocation and Effect of
  Consents

  	
  108

  
	
  Section 905.

  	
  Conformity with TIA

  	
  108

  
	
  Section 906.

  	
  Notation on or Exchange of
  Notes

  	
  108

  
	
   

  	
   

  	
   

  
	
   

  	
  ARTICLE X

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  REDEMPTION OF NOTES

  	
   

  
	
   

  	
   

  	
   

  
	
  Section 1001.

  	
  Right of Redemption

  	
  109

  
	
  Section 1002.

  	
  Applicability of Article

  	
  110

  
	
  Section 1003.

  	
  Election to Redeem; Notice to
  Trustee

  	
  110

  
	
  Section 1004.

  	
  Selection by Trustee of Notes
  to Be Redeemed

  	
  111

  
	
  Section 1005.

  	
  Notice of Redemption

  	
  111

  
	
  Section 1006.

  	
  Deposit of Redemption Price

  	
  112

  
	
  Section 1007.

  	
  Notes Payable on Redemption
  Date

  	
  112

  
	
  Section 1008.

  	
  Mandatory Redemption

  	
  113

  
	
  Section 1009.

  	
  Notes Redeemed in Part

  	
  113

  
	
   

  	
   

  	
   

  
	
   

  	
  ARTICLE XI

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  SATISFACTION AND DISCHARGE

  	
   

  
	
   

  	
   

  	
   

  
	
  Section 1101.

  	
  Satisfaction and Discharge of
  Indenture

  	
  113

  
	
  Section 1102.

  	
  Application of Trust Money

  	
  115

  
	
   

  	
   

  	
   

  
	
   

  	
  ARTICLE XII

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  DEFEASANCE OR COVENANT DEFEASANCE

  	
   

  
	
   

  	
   

  	
   

  
	
  Section 1201.

  	
  The Company’s Option to
  Effect Defeasance or Covenant Defeasance

  	
  115

  
	
  Section 1202.

  	
  Defeasance and Discharge

  	
  115

  
	
  Section 1203.

  	
  Covenant Defeasance

  	
  116

  
	
  Section 1204.

  	
  Conditions to Defeasance or
  Covenant Defeasance

  	
  116

  
	
  Section 1205.

  	
  Deposited Money and U.S.
  Government Obligations to Be Held in Trust; Other Miscellaneous Provisions

  	
  118

  
	
  Section 1206.

  	
  Reinstatement

  	
  118

  
	
  Section 1207.

  	
  Repayment to the Company

  	
  118

  
	
   

  	
   

  	
   

  
	
   

  	
  ARTICLE XIII

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  SUBSIDIARY GUARANTEES

  	
   

  
	
   

  	
   

  	
   

  
	
  Section 1301.

  	
  Guarantees Generally

  	
  119

  



 


iv

















 


	
   

  	
   

  	
  Page

  
	
   

  	
   

  	
   

  
	
  Section 1302.

  	
  Continuing Guarantees

  	
  121

  
	
  Section 1303.

  	
  Release of Subsidiary
  Guarantees

  	
  121

  
	
  Section 1304.

  	
  [Reserved].

  	
  122

  
	
  Section 1305.

  	
  Waiver of Subrogation

  	
  122

  
	
  Section 1306.

  	
  Notation Not Required

  	
  122

  
	
  Section 1307.

  	
  Successors and Assigns of
  Subsidiary Guarantors

  	
  122

  
	
  Section 1308.

  	
  Execution and Delivery of
  Subsidiary Guarantees

  	
  122

  
	
  Section 1309.

  	
  Notices

  	
  123

  
	
   

  	
   

  	
   

  
	
  Exhibit A

  	
  Form of Initial
  Note

  	
   

  
	
  Exhibit B

  	
  Form of Exchange
  Note

  	
   

  
	
  Exhibit C

  	
  Form of
  Certificate of Beneficial Ownership

  	
   

  
	
  Exhibit D

  	
  Form of Regulation
  S Certificate

  	
   

  
	
  Exhibit E

  	
  Form of
  Supplemental Indenture in Respect of Subsidiary Guarantees

  	
   

  
	
  Exhibit F

  	
  Form of
  Certificate from Acquiring Institutional Accredited Investors

  	
   

  



 


v

















 


Certain
Sections of this Indenture relating to Sections 310 through 318

inclusive of the Trust Indenture Act of 1939:


 


	
  Trust Indenture Act Section

  	
   

  	
  Indenture Section

  
	
   

  	
   

  	
   

  
	
  § 310(a)(1)

  	
   

  	
  709

  
	
  (a)(2)

  	
   

  	
  709

  
	
  (a)(3)

  	
   

  	
  Not Applicable

  
	
  (a)(4)

  	
   

  	
  Not Applicable

  
	
  (b)

  	
   

  	
  708

  
	
  § 311(a)

  	
   

  	
  713

  
	
  (b)

  	
   

  	
  713

  
	
  (b)(2)

  	
   

  	
  803

  
	
  § 312(a)

  	
   

  	
  801

  
	
   

  	
   

  	
  802

  
	
  (b)

  	
   

  	
  802

  
	
  (c)

  	
   

  	
  802

  
	
  § 313(a)

  	
   

  	
  803

  
	
  (b)

  	
   

  	
  803

  
	
  (c)

  	
   

  	
  803

  
	
  (d)

  	
   

  	
  803

  
	
  § 314(a)

  	
   

  	
  405

  
	
  (a)(4)

  	
   

  	
  106

  
	
   

  	
   

  	
  406

  
	
  (b)

  	
   

  	
  Not Applicable

  
	
  (c)(1)

  	
   

  	
  106

  
	
  (c)(2)

  	
   

  	
  106

  
	
  (c)(3)

  	
   

  	
  Not Applicable

  
	
  (d)

  	
   

  	
  Not Applicable

  
	
  (e)

  	
   

  	
  106

  
	
  § 315(a)

  	
   

  	
  701

  
	
  (b)

  	
   

  	
  702

  
	
   

  	
   

  	
  803

  
	
  (c)

  	
   

  	
  701

  
	
  (d)

  	
   

  	
  701

  
	
  (d)(1)

  	
   

  	
  701

  
	
  (d)(2)

  	
   

  	
  701

  
	
  (d)(3)

  	
   

  	
  612

  
	
  (e)

  	
   

  	
  614

  



 


vi

















 


	
  Trust Indenture Act Section

  	
   

  	
  Indenture Section

  
	
   

  	
   

  	
   

  
	
  § 316(a)

  	
   

  	
  612

  
	
   

  	
   

  	
  613

  
	
  (a)(1)(A)

  	
   

  	
  602

  
	
   

  	
   

  	
  612

  
	
  (a)(1)(B)

  	
   

  	
  613

  
	
  (a)(2)

  	
   

  	
  Not Applicable

  
	
  (b)

  	
   

  	
  608

  
	
  (c)

  	
   

  	
  104

  
	
  § 317(a)(1)

  	
   

  	
  603

  
	
  (a)(2)

  	
   

  	
  604

  
	
  (b)

  	
   

  	
  403

  
	
  § 318(a)

  	
   

  	
  105

  



 






This cross-reference table shall
not for any purpose be deemed to be part of this Indenture.


 


vii

















 


INDENTURE, dated as of July 24, 2008 (as amended, supplemented or
otherwise modified from time to time, this “Indenture”), among the
Company (as defined herein), the Subsidiary Guarantors from time to time
parties hereto, and Wilmington Trust FSB, as Trustee.


 


RECITALS OF THE COMPANY


 


The Company has duly authorized the execution and delivery of this
Indenture to provide for the issuance of the Notes.


 


All things necessary to make the Original Notes, when executed and
delivered by the Company and authenticated and delivered by the Trustee
hereunder and duly issued by the Company, the valid obligations of the Company,
and to make this Indenture a valid agreement of the Company in accordance with
the terms of the Original Notes and this Indenture, have been done.


 


NOW, THEREFORE,
THIS INDENTURE WITNESSETH:


 


For and in consideration of the premises and the purchase of the Notes
by the Holders thereof, it is mutually agreed, for the benefit of all Holders
of the Notes, as follows:


 


ARTICLE I


 


DEFINITIONS AND OTHER PROVISIONS

OF GENERAL APPLICATION


 


Section 101.           Definitions.


 


“Acquired Indebtedness” means Indebtedness of a Person (i) existing at the time such Person becomes a
Subsidiary or (ii) assumed in connection
with the acquisition of assets from such Person, in each case other than
Indebtedness Incurred in connection with, or in contemplation of, such Person
becoming a Subsidiary or such acquisition. 
Acquired Indebtedness shall be deemed to be Incurred on the date of the
related acquisition of assets from any Person or the date the acquired Person
becomes a Subsidiary.


 


“Acquisition Co.” means CDRSVM
Acquisition Co., Inc., a Delaware corporation.


 


“Additional Assets” means (i) any
property or assets that replace the property or assets that are the subject of
an Asset Disposition; (ii) any
property or assets (other than Indebtedness and Capital Stock) used or to be
used by the Company or a Restricted Subsidiary or otherwise useful in a Related
Business (including any capital expenditures on any property or assets already
so used); (iii) the Capital Stock of a Person that is
engaged in a Related Business and becomes a Restricted Subsidiary as a result
of the acquisition of such Capital Stock by the Company or another Restricted
Subsidiary; or (iv) Capital Stock of any
Person that at such time is a Restricted Subsidiary acquired from a third
party.


 

















 


“Additional Notes” means any of the Company’s 10.75%/11.50%
Senior Toggle Notes due 2015 issued under this Indenture in addition to the
Original Notes (other than any Notes issued pursuant to Section 304,
305, 306, 312(c), 312(d) or 1009, or
issued in connection with the payment of PIK Interest).


 


“Affiliate” of any specified Person means any other Person,
directly or indirectly, controlling or controlled by or under direct or
indirect common control with such specified Person.  For the purposes of this definition, “control”
when used with respect to any Person means the power to direct the management
and policies of such Person, directly or indirectly, whether through the
ownership of voting securities, by contract or otherwise; and the terms “controlling”
and “controlled” have meanings correlative to the foregoing.


 


“Asset Disposition” means any sale,
lease, transfer or other disposition of shares of Capital Stock of a Restricted
Subsidiary (other than directors’ qualifying shares, or (in the case of a
Foreign Subsidiary) to the extent required by applicable law), property or
other assets (each referred to for the purposes of this definition as a “disposition”)
by the Company or any of its Restricted Subsidiaries (including any disposition
by means of a merger, consolidation or similar transaction), other than (i) a disposition to the Company or a Restricted
Subsidiary, (ii) a disposition in the
ordinary course of business, (iii) a
disposition of Cash Equivalents, Investment Grade Securities or Temporary Cash
Investments, (iv) the sale or discount
(with or without recourse, and on customary or commercially reasonable terms)
of accounts receivable or notes receivable arising in the ordinary course of
business, or the conversion or exchange of accounts receivable for notes
receivable, (v) any Restricted Payment
Transaction, (vi) a disposition that is
governed by Article V, (vii) any
Financing Disposition, (viii) any “fee
in lieu” or other disposition of assets to any governmental authority or agency
that continue in use by the Company or any Restricted Subsidiary, so long as
the Company or any Restricted Subsidiary may obtain title to such assets upon
reasonable notice by paying a nominal fee, (ix) any
exchange of property pursuant to or intended to qualify under Section 1031
(or any successor section) of the Code, or any exchange of equipment to be
leased, rented or otherwise used in a Related Business, (x) any
financing transaction with respect to property built or acquired by the Company
or any Restricted Subsidiary after the Closing Date, including without
limitation any sale/leaseback transaction or asset securitization, (xi) any disposition arising from
foreclosure, condemnation or similar action with respect to any property or
other assets, or exercise of termination rights under any lease, license,
concession or other agreement, or pursuant to buy/sell arrangements under any
joint venture or similar agreement or arrangement, (xii) any disposition of Capital Stock, Indebtedness or
other securities of an Unrestricted Subsidiary, (xiii) a disposition of Capital Stock of a Restricted
Subsidiary pursuant to an agreement or other obligation with or to a Person
(other than the Company or a Restricted Subsidiary) from whom such Restricted
Subsidiary was acquired, or from whom such Restricted Subsidiary acquired its
business and assets (having been newly formed in connection with such
acquisition), entered into in connection with such acquisition, (xiv) a disposition of not more than
5% of the outstanding Capital Stock of a Foreign Subsidiary that has been
approved by the Board of Directors, (xv) any
disposition or series of related dispositions for aggregate consideration not
to exceed $30.0 million, (xvi) any
Exempt Sale and Leaseback Transaction or (xvii) the
abandonment or other disposition of patents, trademarks or other 


 


2

















 


intellectual property that are, in the
reasonable judgment of the Company, no longer economically practicable to
maintain or useful in the conduct of the business of the Company and its
Subsidiaries taken as a whole.


 


“Authenticating Agent” means any Person authorized by the
Trustee pursuant to Section 714 to act on behalf of the Trustee to
authenticate Notes of one or more series.


 


“Bank Indebtedness” means any and all amounts, whether
outstanding on the Closing Date or thereafter incurred, payable under or in
respect of any Credit Facility, including without limitation any principal,
premium, interest (including interest accruing on or after the filing of any
petition in bankruptcy or for reorganization relating to the Company or any
Restricted Subsidiary whether or not a claim for post-filing interest is
allowed in such proceedings), fees, charges, expenses, reimbursement
obligations, guarantees, other monetary obligations of any nature and all other
amounts payable thereunder or in respect thereof.


 


“Board of Directors” means, for any Person, the board of
directors or other governing body of such Person or, if such Person does not
have such a board of directors or other governing body and is owned or managed
by a single entity, the Board of Directors of such entity, or, in either case,
any committee thereof duly authorized to act on behalf of such Board of
Directors.  Unless otherwise provided, “Board
of Directors” means the Board of Directors of the Company.


 


“Business Day” means a day other than a Saturday, Sunday or
other day on which commercial banking institutions are authorized or required
by law to close in New York City (or any other city in which a Paying Agent
maintains its office).


 


“Capital Markets Securities” means bonds, debentures, notes or
other similar debt securities of the Company or any Subsidiary Guarantor (other
than the Notes).


 


“Capital Stock” of any Person means any and all shares of,
rights to purchase, warrants or options for, or other equivalents of or
interests in (however designated) equity of such Person, including any
Preferred Stock, but excluding any debt securities convertible into such
equity.


 


“Capitalized Lease Obligation” means an obligation that is
required to be classified and accounted for as a capitalized lease for
financial reporting purposes in accordance with GAAP.  The Stated Maturity of any Capitalized Lease
Obligation shall be the date of the last payment of rent or any other amount
due under the related lease.


 


“Captive Insurance Subsidiary” means any of (a) Steward Insurance Company, a Vermont corporation,
and any successor in interest thereto, so long as such Person either (x) satisfies the requirements of clause (c) below or (y) does
not enter into any new insurance policies after the Closing Date insuring risks
of any Persons other than the Company and its Subsidiaries, (b) any Subsidiary of any Captive Insurance Subsidiary
referred to in clause (a)


 


3
















 


above and (c) any
Subsidiary of the Company that is subject to regulation as an insurance company
(or any Subsidiary thereof).


 


“Cash Equivalents” means any of the
following:  (a) money,
(b) securities issued or fully
guaranteed or insured by the United States of America or a member state of The
European Union or any agency or instrumentality of any thereof, (c) time deposits, certificates of deposit or bankers’
acceptances of (i) any lender under a Senior
Credit Agreement or any affiliate thereof or (ii) any
commercial bank having capital and surplus in excess of $500,000,000 and the
commercial paper of the holding company of which is rated at least A-2 or the
equivalent thereof by S&P or at least P-2 or the equivalent thereof by
Moody’s (or if at such time neither is issuing ratings, then a comparable
rating of another nationally recognized rating agency), (d) money
market instruments, commercial paper or other short-term obligations rated at
least A-2 or the equivalent thereof by S&P or at least P-2 or the
equivalent thereof by Moody’s (or if at such time neither is issuing ratings,
then a comparable rating of another nationally recognized rating agency), (e) investments in money market funds subject to the
risk limiting conditions of Rule 2a-7 or any successor rule of the
SEC under the Investment Company Act of 1940, as amended and (f) investments similar to any of the foregoing
denominated in foreign currencies approved by the Board of Directors.


 


“CD&R” means Clayton, Dubilier & Rice, Inc.


 


“CD&R Investors” means,
collectively, (i) Clayton, Dubilier &
Rice Fund VII, L.P., or any legal successor thereto, (ii) Clayton, Dubilier & Rice Fund VII
(Co-Investment), L.P., or any legal
successor thereto, (iii) CDR SVM Co-Investor L.P.,
or any legal successor thereto, (iv) CD&R
Parallel Fund VII, L.P., or any legal successor
thereto, and (v) any Affiliate of any
CD&R Investor.


 


“Change of Control” means:


 


(i)            any “person” (as
such term is used in Sections 13(d) and 14(d) of the Exchange
Act), other than one or more Permitted Holders or a Parent, becomes the “beneficial
owner” (as defined in Rules 13d-3 and 13d-5 under the Exchange Act),
directly or indirectly, of more than 50% of the total voting power of the
Voting Stock of the Company, provided that (x) so long
as the Company is a Subsidiary of any Parent, no “person” shall be deemed to be
or become a “beneficial owner” of more than 50% of the total voting power of
the Voting Stock of the Company unless such “person” shall be or become a “beneficial
owner” of more than 50% of the total voting power of the Voting Stock of such
Parent and (y) any Voting Stock of which any
Permitted Holder is the “beneficial owner” shall not in any case be included in
any Voting Stock of which any such “person” is the “beneficial owner”; or


 


(ii)           the Company merges
or consolidates with or into, or sells or transfers (in one or a series of
related transactions) all or substantially all of the assets of the Company and
its Restricted Subsidiaries to, another Person (other than one or more Permitted
Holders) and any “person” (as defined in clause (i) above),
other than one or more Permitted Holders or any Parent, is or becomes the “beneficial
owner” (as so defined), 


 


4

















 


directly or indirectly, of more than 50% of the total
voting power of the Voting Stock of the surviving Person in such merger or
consolidation, or the transferee Person in such sale or transfer of assets, as
the case may be, provided that (x) so
long as such surviving or transferee Person is a Subsidiary of a parent Person,
no “person” shall be deemed to be or become a “beneficial owner” of more than
50% of the total voting power of the Voting Stock of such surviving or
transferee Person unless such “person” shall be or become a “beneficial owner”
of more than 50% of the total voting power of the Voting Stock of such parent
Person and (y) any Voting Stock of which any
Permitted Holder is the “beneficial owner” shall not in any case be included in
any Voting Stock of which any such “person” is the beneficial owner.


 


Notwithstanding anything to the contrary in the foregoing, the
Transactions shall not constitute or give rise to a “Change of Control.”


 


“Clearstream” means Clearstream Banking, société anonyme, or any
successor securities clearing agency.


 


“Closing Date” means July 24, 2007.


 


“Code” means the Internal Revenue Code of 1986, as amended.


 


“Commodities Agreement” means, in respect of a Person, any
commodity futures contract, forward contract, option or similar agreement or
arrangement (including derivative agreements or arrangements), as to which such
Person is a party or beneficiary.


 


“Company” means (i) Acquisition
Co. until its merger with ServiceMaster, and thereafter (ii) ServiceMaster,
and any successor in interest thereto.


 


“Company Request” and “Company Order” mean, respectively,
a written request, order or consent signed in the name of the Company by an
Officer of the Company.


 


“Consolidated Coverage Ratio” as of any date of determination
means the ratio of (i) the
aggregate amount of Consolidated EBITDA for the period of the most recent four
consecutive fiscal quarters ending prior to the date of such determination for
which consolidated financial statements of the Company are available to (ii) Consolidated
Interest Expense for such four fiscal quarters (in each of the foregoing
clauses (i) and (ii),
determined for each fiscal quarter (or portion thereof) of the four fiscal
quarters ending prior to the Closing Date, on a pro forma basis to give effect
to the Merger as if it had occurred at the beginning of such four-quarter
period); provided that


 


(1)           if since the
beginning of such period the Company or any Restricted Subsidiary has Incurred
any Indebtedness that remains outstanding on such date of determination or if
the transaction giving rise to the need to calculate the Consolidated Coverage
Ratio is an Incurrence of Indebtedness, Consolidated EBITDA and Consolidated
Interest Expense for such period shall be calculated after giving effect on a 


 


5

















 


pro forma basis to such Indebtedness as if such
Indebtedness had been Incurred on the first day of such period (except that in
making such computation, the amount of Indebtedness under any revolving credit
facility outstanding on the date of such calculation shall be computed based on
(A) the average daily balance of
such Indebtedness during such four fiscal quarters or such shorter period for
which such facility was outstanding or (B) if such
facility was created after the end of such four fiscal quarters, the average
daily balance of such Indebtedness during the period from the date of creation
of such facility to the date of such calculation),


 


(2)           if since the
beginning of such period the Company or any Restricted Subsidiary has repaid,
repurchased, redeemed, defeased or otherwise acquired, retired or discharged
any Indebtedness that is no longer outstanding on such date of determination
(each, a “Discharge”) or if the transaction giving rise to the need to
calculate the Consolidated Coverage Ratio involves a Discharge of Indebtedness
(in each case other than Indebtedness Incurred under any revolving credit
facility unless such Indebtedness has been permanently repaid), Consolidated
EBITDA and Consolidated Interest Expense for such period shall be calculated
after giving effect on a pro forma basis to such Discharge of such
Indebtedness, including with the proceeds of such new Indebtedness, as if such
Discharge had occurred on the first day of such period,


 


(3)           if since the beginning
of such period the Company or any Restricted Subsidiary shall have disposed of
any company, any business or any group of assets constituting an operating unit
of a business (any such disposition, a “Sale”), the Consolidated EBITDA
for such period shall be reduced by an amount equal to the Consolidated EBITDA
(if positive) attributable to the assets that are the subject of such Sale for
such period or increased by an amount equal to the Consolidated EBITDA (if
negative) attributable thereto for such period and Consolidated Interest
Expense for such period shall be reduced by an amount equal to (A) the Consolidated Interest Expense attributable to
any Indebtedness of the Company or any Restricted Subsidiary repaid,
repurchased, redeemed, defeased or otherwise acquired, retired or discharged
with respect to the Company and its continuing Restricted Subsidiaries in
connection with such Sale for such period (including but not limited to through
the assumption of such Indebtedness by another Person) plus (B) if the Capital Stock of any Restricted Subsidiary is
sold, the Consolidated Interest Expense for such period attributable to the
Indebtedness of such Restricted Subsidiary to the extent the Company and its
continuing Restricted Subsidiaries are no longer liable for such Indebtedness
after such Sale,


 


(4)           if since the
beginning of such period the Company or any Restricted Subsidiary (by merger,
consolidation or otherwise) shall have made an Investment in any Person that
thereby becomes a Restricted Subsidiary, or otherwise acquired any company, any
business or any group of assets constituting an operating unit of a business,
including any such Investment or acquisition occurring in connection with a
transaction causing a calculation to be made hereunder (any such Investment or
acquisition, a “Purchase”), Consolidated EBITDA and Consolidated
Interest Expense for such period 


 


6

















 


shall be calculated after giving pro forma effect
thereto (including the Incurrence of any related Indebtedness) as if such
Purchase occurred on the first day of such period, and


 


(5)           if since the
beginning of such period any Person became a Restricted Subsidiary or was
merged or consolidated with or into the Company or any Restricted Subsidiary,
and since the beginning of such period such Person shall have Discharged any
Indebtedness or made any Sale or Purchase that would have required an
adjustment pursuant to clause (2), (3) or (4) above
if made by the Company or a Restricted Subsidiary since the beginning of such
period, Consolidated EBITDA and Consolidated Interest Expense for such period
shall be calculated after giving pro forma effect thereto as if such Discharge,
Sale or Purchase occurred on the first day of such period.


 


For purposes of this definition, whenever pro forma effect is to be
given to any Sale, Purchase or other transaction, or the amount of income or
earnings relating thereto and the amount of Consolidated Interest Expense
associated with any Indebtedness Incurred or repaid, repurchased, redeemed,
defeased or otherwise acquired, retired or discharged in connection therewith,
the pro forma calculations in respect thereof (including without limitation in
respect of anticipated cost savings or synergies relating to any such Sale,
Purchase or other transaction) shall be as determined in good faith by the
Chief Financial Officer or an authorized Officer of the Company.  If any Indebtedness bears a floating rate of
interest and is being given pro forma effect, the interest expense on such
Indebtedness shall be calculated as if the rate in effect on the date of
determination had been the applicable rate for the entire period (taking into
account any Interest Rate Agreement applicable to such Indebtedness).  If any Indebtedness bears, at the option of
the Company or a Restricted Subsidiary, a rate of interest based on a prime or
similar rate, a eurocurrency interbank offered rate or other fixed or floating
rate, and such Indebtedness is being given pro forma effect, the interest
expense on such Indebtedness shall be calculated by applying such optional rate
as the Company or such Restricted Subsidiary may designate.  If any Indebtedness that is being given pro
forma effect was Incurred under a revolving credit facility, the interest
expense on such Indebtedness shall be computed based upon the average daily
balance of such Indebtedness during the applicable period.  Interest on a Capitalized Lease Obligation
shall be deemed to accrue at an interest rate determined in good faith by a
responsible financial or accounting officer of the Company to be the rate of
interest implicit in such Capitalized Lease Obligation in accordance with GAAP.


 


“Consolidated EBITDA” means, for any
period, the Consolidated Net Income for such period, plus the following to the
extent deducted in calculating such Consolidated Net Income, without
duplication:  (i) provision
for all taxes (whether or not paid, estimated or accrued) based on income,
profits or capital (including penalties and interest, if any), (ii) Consolidated Interest Expense, all items excluded
from the definition of Consolidated Interest Expense pursuant to clause (iii) thereof (other than Special Purpose Financing
Expense), any Special Purpose Financing Fees, and (for purposes of the Consolidated
Total Leverage Ratio) any Special Purpose Financing Expense, (iii) depreciation, amortization (including but not
limited to amortization of goodwill and intangibles and amortization and
write-off of financing costs) and all other non-cash charges or non-cash
losses, (iv) any expenses or charges related
to any Equity Offering, Investment 


 


7

















 


or Indebtedness permitted by
this Indenture (whether or not consummated or incurred, and including any sale
of Capital Stock to the extent the proceeds thereof were intended to be
contributed to the equity capital of the Company or any of its Restricted
Subsidiaries), (v) the amount of any
minority interest expense, (vi) any
management, monitoring, consulting and advisory fees and related expenses paid
to any of CD&R or any of its Affiliates, (vii) interest
and investment income, (viii) the
amount of net cost savings projected by the Company in good faith to be
realized as a result of actions taken or to be taken (calculated on a pro forma
basis as though such cost savings had been realized on the first day of such
period), net of the amount of actual benefits realized during such period from
such actions; provided that (x) such cost savings are reasonably identifiable and
factually supportable, (y) such
actions have been taken or are to be taken within 12 months after the date
of determination to take such action and (z) the
aggregate amount of cost savings added pursuant to this clause (viii) shall not exceed $35.0 million for any four
consecutive quarter period (which adjustments may be incremental to (but not
duplicative of) pro forma adjustments made pursuant to the proviso to the
definition of “Consolidated Coverage Ratio” or “Consolidated Total Leverage
Ratio”), (ix) the amount of loss on any
Financing Disposition, and (x) any
costs or expenses pursuant to any management or employee stock option or other
equity-related plan, program or arrangement, or other benefit plan, program or
arrangement, or any stock subscription or shareholder agreement, to the extent
funded with cash proceeds contributed to the capital of the Company or an
issuance of Capital Stock of the Company (other than Disqualified Stock) and
excluded from the calculation set forth in Section 409(a)(3).


 


“Consolidated Interest Expense” means, for any period, (i) the total interest expense of the Company and its
Restricted Subsidiaries to the extent deducted in calculating Consolidated Net
Income, net of any interest income of the Company and its Restricted
Subsidiaries, including without limitation any such interest expense consisting
of (a) interest
expense attributable to Capitalized Lease Obligations, (b) amortization
of debt discount, (c) interest
in respect of Indebtedness of any other Person that has been Guaranteed by the
Company or any Restricted Subsidiary, but only to the extent that such interest
is actually paid by the Company or any Restricted Subsidiary, (d) non-cash interest expense
(including any amortization during such period of any capitalized interest), (e) the interest portion of any
deferred payment obligation and (f) commissions,
discounts and other fees and charges owed with respect to letters of credit and
bankers’ acceptance financing, plus (ii) Preferred Stock dividends
paid in cash in respect of Disqualified Stock of the Company held by Persons
other than the Company or a Restricted Subsidiary, minus (iii) to
the extent otherwise included in such interest expense referred to in
clause (i) above, amortization or
write-off of financing costs, Special
Purpose Financing Expense, accretion or accrual of discounted liabilities not
constituting Indebtedness, expense resulting from discounting of Indebtedness
in conjunction with recapitalization or purchase accounting, and any “additional
interest” in respect of registration rights arrangements for any securities
(including the Notes), in each case under clauses (i) through (iii) as
determined on a Consolidated basis in accordance with GAAP; provided, that gross
interest expense shall be determined after giving effect to any net payments
made or received by the Company and its Restricted Subsidiaries with respect to
Interest Rate Agreements.


 


8

















 


“Consolidated Net Income” means, for any period, the net income
(loss) of the Company and its Restricted Subsidiaries, determined on a
Consolidated basis in accordance with GAAP and before any reduction in respect
of Preferred Stock dividends; provided, that there shall not be included in
such Consolidated Net Income:


 


(i)            any net income (loss) of any Person that is
not the Company or a Restricted Subsidiary, except that the Company’s equity in
the net income of any such Person for such period shall be included in such
Consolidated Net Income up to the aggregate amount actually distributed by such
Person during such period to the Company or a Restricted Subsidiary as a
dividend or other distribution (subject, in the case of a dividend or other
distribution to a Restricted Subsidiary, to the limitations contained in
clause (ii) below),


 


(ii)           solely for purposes
of determining the amount available for Restricted Payments under Section 409(a)(3)(A),
any net income (loss) of any Restricted Subsidiary that is not a Subsidiary
Guarantor if such Restricted Subsidiary is subject to restrictions, directly or
indirectly, on the payment of dividends or the making of similar distributions
by such Restricted Subsidiary, directly or indirectly, to the Company by
operation of the terms of such Restricted Subsidiary’s charter or any
agreement, instrument, judgment, decree, order, statute or governmental rule or
regulation applicable to such Restricted Subsidiary or its stockholders (other
than  (x) restrictions
that have been waived or otherwise released, (y) restrictions
pursuant to the Notes or this Indenture and (z) restrictions
in effect on the Closing Date with respect to a Restricted Subsidiary and other
restrictions with respect to such Restricted Subsidiary that taken as a whole
are not materially less favorable to the Noteholders than such restrictions in
effect on the Closing Date), except that the Company’s equity in the net income
of any such Restricted Subsidiary for such period shall be included in such
Consolidated Net Income up to the aggregate amount of any dividend or
distribution that was or that could have been made by such Restricted
Subsidiary during such period to the Company or another Restricted Subsidiary
(subject, in the case of a dividend that could have been made to another
Restricted Subsidiary, to the limitation contained in this clause),


 


(iii)          any gain or loss
realized upon (x) the sale, abandonment or
other disposition of any asset of the Company or any Restricted Subsidiary
(including pursuant to any sale/leaseback transaction) that is not sold,
abandoned or otherwise disposed of in the ordinary course of business (as
determined in good faith by the Board of Directors) or (y) the
disposal, abandonment or discontinuation of operations of the Company or any
Restricted Subsidiary, and any income (loss) from disposed, abandoned or
discontinued operations,


 


(iv)          any
item classified as an extraordinary, unusual or nonrecurring gain, loss or
charge (including fees, expenses and charges associated with the Transactions
and any acquisition, merger or consolidation after the Closing Date);


 


(v)           the cumulative
effect of a change in accounting principles,


 


9

















 


(vi)          all deferred
financing costs written off and premiums paid in connection with any early
extinguishment of Indebtedness or Hedging Obligations or other derivative
instruments,


 


(vii)         any unrealized gains
or losses in respect of Currency Agreements,


 


(viii)        any unrealized
foreign currency transaction gains or losses in respect of Indebtedness of any
Person denominated in a currency other than the functional currency of such
Person,


 


(ix)           any non-cash
compensation charge arising from any grant of stock, stock options or other
equity based awards,


 


(x)            to the extent
otherwise included in Consolidated Net Income, any unrealized foreign currency
translation or transaction gains or losses in respect of Indebtedness or other
obligations of the Company or any Restricted Subsidiary owing to the Company or
any Restricted Subsidiary,


 


(xi)           any non-cash
charge, expense or other impact attributable to application of the purchase or
recapitalization method of accounting (including the total amount of
depreciation and amortization, cost of sales or other non-cash expense
resulting from the write-up of assets to the extent resulting from such
purchase accounting adjustments),


 


(xii)          any
impairment charge or asset write-off, including any charge or write-off related
to intangible assets, long-lived assets or investments in debt and equity
securities, and any amortization of intangibles,


 


(xiii)         any
fees and expenses (or amortization thereof), and any charges or costs, in
connection with any acquisition, Investment, Asset Disposition, issuance of
Capital Stock, issuance, repayment or refinancing of Indebtedness, or amendment
or modification of any agreement or instrument relating to any Indebtedness (in
each case, whether or not completed, and including any such transactions
consummated prior to the Closing Date),


 


(xiv)        any
accruals and reserves established or adjusted within twelve months after the Closing
Date that are established as a
result of the Transactions, and any changes as a result of adoption or
modification of accounting policies, and


 


(xv)         to
the extent covered by insurance and actually reimbursed (or the Company has
determined that there exists reasonable evidence that such amount will be
reimbursed by the insurer and such amount is not denied by the applicable
insurer in writing within 180 days and is reimbursed within 365 days
of the date of such evidence (with a deduction in any future calculation of
Consolidated Net Income for any amount so added back to the extent not so
reimbursed within such 365 day period)), any expenses with respect to
liability or casualty events or business interruption.


 


10

















 


Notwithstanding the foregoing, for the purpose of Section 409(a)(3)(A) only,
there shall be excluded from Consolidated Net Income, without duplication, any
income consisting of dividends, repayments of loans or advances or other
transfers of assets from Unrestricted Subsidiaries to the Company or a
Restricted Subsidiary, and any income consisting of return of capital,
repayment or other proceeds from dispositions or repayments of Investments
consisting of Restricted Payments, in each case to the extent such income would
be included in Consolidated Net Income and such related dividends, repayments,
transfers, return of capital or other proceeds are applied by the Company to
increase the amount of Restricted Payments permitted under Section 409(a)(3)(C) or
(D).


 


In addition, for purposes of Section 409(a)(3)(A),
Consolidated Net Income for any period ending on or prior to the Closing Date
shall be determined based upon the net income (loss) reflected in the
consolidated financial statements of the Company for such period; and each
Person that is a Restricted Subsidiary upon giving effect to the Transactions
shall be deemed to be a Restricted Subsidiary, and the Transactions shall not
constitute a sale or disposition under clause (iii) above,
for purposes of such determination.


 


“Consolidated Tangible Assets” means, as of any date of
determination, the total assets less the sum of the goodwill, net, and other
intangible assets, net, in each case reflected on the consolidated balance
sheet of the Company and its Restricted Subsidiaries as at the end of the most
recently ended fiscal quarter of the Company for which such a balance sheet is
available, determined on a Consolidated basis in accordance with GAAP (and, in
the case of any determination relating to any Incurrence of Indebtedness or any
Investment, on a pro forma basis including any property or assets being
acquired in connection therewith).


 


“Consolidated Total Indebtedness”
means, at the date of determination thereof, an amount equal to (1) the aggregate principal amount of outstanding
Indebtedness of the Company and its Restricted Subsidiaries as of such date
consisting of (without duplication) Indebtedness for borrowed money (including
Purchase Money Obligations and unreimbursed outstanding drawn amounts under
funded letters of credit), Capitalized Lease Obligations and debt obligations
evidenced by bonds, debentures, notes or similar instruments, determined on a
Consolidated basis in accordance with GAAP (excluding items eliminated in
Consolidation, and for the avoidance of doubt, excluding Hedging Obligations),
minus (2) the amount of Unrestricted Cash
held by the Company and its Restricted Subsidiaries as of the end of the most
recent four consecutive fiscal quarters ending prior to the date of such
determination for which consolidated financial statements of the Company are
available.


 


“Consolidated Total Leverage Ratio”
means, as of any date of determination, the ratio of (x) Consolidated
Total Indebtedness as at such date (after giving effect to any Incurrence or
Discharge of Indebtedness on such date) to (y) the
aggregate amount of Consolidated EBITDA for the period of the most recent four
consecutive fiscal quarters ending prior to the date of such determination for
which consolidated financial statements of the Company are available
(determined, for each fiscal quarter (or portion thereof) of the four fiscal
quarters ending prior to 


 


11

















 


the Closing Date, on a pro forma
basis to give effect to the Merger as if it had occurred at the beginning of
such four-quarter period), provided
that:


 


(i)            if since the
beginning of such period the Company or any Restricted Subsidiary shall have
made a Sale, the Consolidated EBITDA for such period shall be reduced by an
amount equal to the Consolidated EBITDA (if positive) attributable to the
assets that are the subject of such Sale for such period or increased by an
amount equal to the Consolidated EBITDA (if negative) attributable thereto for
such period;


 


(ii)           if since the
beginning of such period the Company or any Restricted Subsidiary (by merger,
consolidation or otherwise) shall have made a Purchase (including any Purchase
occurring in connection with a transaction causing a calculation to be made
hereunder), Consolidated EBITDA for such period shall be calculated after
giving pro forma effect thereto as if such Purchase occurred on the first day
of such period; and


 


(iii)          if since the
beginning of such period any Person became a Restricted Subsidiary or was
merged or consolidated with or into the Company or any Restricted Subsidiary,
and since the beginning of such period such Person shall have made any Sale or
Purchase that would have required an adjustment pursuant to clause (i) or (ii) above
if made by the Company or a Restricted Subsidiary since the beginning of such
period, Consolidated EBITDA for such period shall be calculated after giving
pro forma effect thereto as if such Sale or Purchase occurred on the first day
of such period.


 


For purposes of this definition, whenever pro
forma effect is to be given to any Sale, Purchase or other transaction, or the
amount of income or earnings relating thereto, the pro forma calculations in
respect thereof (including without limitation in respect of anticipated cost
savings or synergies relating to any such Sale, Purchase or other transaction)
shall be as determined in good faith by a responsible financial or accounting
Officer of the Company.


 


“Consolidation” means the consolidation of the accounts of each
of the Restricted Subsidiaries with those of the Company in accordance with
GAAP; provided
that “Consolidation” will not include consolidation of the accounts
of any Unrestricted Subsidiary, but the interest of the Company or any Restricted
Subsidiary in any Unrestricted Subsidiary will be accounted for as an
investment.  The term “Consolidated” has
a correlative meaning.  For purposes of
this Indenture for periods ending on or prior to the Closing Date, references
to the consolidated financial statements of the Company shall be to the
consolidated financial statements of ServiceMaster (with Subsidiaries of
ServiceMaster being deemed Subsidiaries of the Company), as the context may
require.


 


“Contingent Obligation” means, with
respect to any Person, any obligation of such Person guaranteeing any
obligation that does not constitute Indebtedness (a “primary obligation”) of
any other Person (the “primary obligor”) in any manner, whether directly or
indirectly, including any obligation of such Person, whether or not contingent,
(1) to purchase any such primary
obligation or any property constituting direct or indirect security therefor, (2) to advance or supply funds (a) for
the purchase or payment of any such primary obligation, or (b) to maintain working 


 


12

















 


capital or equity capital of
the primary obligor or otherwise to maintain the net worth or solvency of the
primary obligor, or (3) to
purchase property, securities or services primarily for the purpose of assuring
the owner of any such primary obligation of the ability of the primary obligor
to make payment of such primary obligation against loss in respect thereof.


 


“Continuing Notes” means the Company’s 7.10% Notes due March 1,
2018, 7.45% Notes due August 15, 2027 and 7.25% Notes due March 1,
2038, in each case issued under the Existing Notes Indenture.


 


“Contribution Amounts” means the aggregate amount of capital
contributions applied by the Company to permit the Incurrence of Contribution
Indebtedness pursuant to Section 407(b)(xi).


 


“Contribution Indebtedness” means Indebtedness of the Company or
any Restricted Subsidiary in an aggregate principal amount not greater than
twice the aggregate amount of cash contributions (other than Excluded
Contributions) made to the capital of the Company or such Restricted Subsidiary
after the Closing Date (whether through the issuance or sale of Capital Stock
or otherwise); provided that such Contribution Indebtedness (a) is incurred within 180 days after the making of the
related cash contribution and (b) is so
designated as Contribution Indebtedness pursuant to an Officer’s Certificate on
the date of Incurrence thereof.


 


“Corporate Trust Office” means the office of the Trustee at
which at any particular time its corporate trust business shall be
administered, which office on the Issue Date is located at Normandale Lake
Center, 8400 Normandale Lake Blvd., Suite 925, Bloomington, MN 55437,
Attn: Corporate Client Services.


 


“Credit Facilities” means one or more of (i) the
Senior Term Facility, (ii) the
Senior Revolving Credit Facility and (iii) any other facilities or
arrangements designated by the Company, in each case with one or more banks or
other lenders or institutions providing for revolving credit loans, term loans,
receivables financings (including without limitation through the sale of
receivables to such institutions or to special purpose entities formed to
borrow from such institutions against such receivables or the creation of any
Liens in respect of such receivables in favor of such institutions), letters of
credit or other Indebtedness, in each case, including all agreements,
instruments and documents executed and delivered pursuant to or in connection
with any of the foregoing, including but not limited to any notes and letters
of credit issued pursuant thereto and any guarantee and collateral agreement,
patent and trademark security agreement, mortgages or letter of credit
applications and other guarantees, pledge agreements, security agreements and
collateral documents, in each case as the same may be amended, supplemented,
waived or otherwise modified from time to time, or refunded, refinanced,
restructured, replaced, renewed, repaid, increased or extended from time to
time (whether in whole or in part, whether with the original banks, lenders or
institutions or other banks, lenders or institutions or otherwise, and whether
provided under any original Credit Facility or one or more other credit
agreements, indentures, financing agreements or other Credit Facilities or
otherwise).  Without limiting the
generality of the foregoing, the term “Credit Facility” shall include any
agreement (i) changing the maturity of any
Indebtedness Incurred


 


13
















 


thereunder or contemplated thereby, (ii) adding
Subsidiaries as additional borrowers or guarantors thereunder, (iii) increasing the amount of Indebtedness Incurred
thereunder or available to be borrowed thereunder or (iv) otherwise
altering the terms and conditions thereof.


 


“Currency Agreement” means, in respect of a Person, any foreign
exchange contract, currency swap agreement or other similar agreement or
arrangements (including derivative agreements or arrangements), as to which
such Person is a party or a beneficiary.


 


“Default” means any event or condition that is, or after notice
or passage of time or both would be, an Event of Default.


 


“Delayed Draw Term Loan Commitment”:  the commitment of a lender under the Senior
Term Agreement to make or otherwise fund a Delayed Draw Term Loan pursuant to
the Senior Term Agreement.


 


“Delayed Draw Term Loan Commitment Termination Date”:  the earliest to occur of (i) the date the Delayed Draw Term Loan Commitments are
permanently reduced to zero pursuant to the Senior Term Agreement, (ii) the date of the termination of all of the Delayed
Draw Term Loan Commitments pursuant to the Senior Term Agreement and (iii) October 17, 2007.


 


“Delayed Draw Term Loans”: 
as defined in subsection 2.1(a)(i)(y) of the Senior Term Agreement.


 


“Depositary” means The Depository Trust Company, its nominees
and successors.


 


“Designated Noncash Consideration” means the Fair Market Value
of noncash consideration received by the Company or one of its Restricted
Subsidiaries in connection with an Asset Disposition that is so designated as
Designated Noncash Consideration pursuant to an Officer’s Certificate, setting
forth the basis of such valuation.


 


“Designated Preferred Stock” means
Preferred Stock of the Company (other than Disqualified Stock) or any Parent
that is issued for cash (other than to a Restricted Subsidiary) and is so
designated as Designated Preferred Stock, pursuant to an Officer’s Certificate
of the Company.


 


“Designated Senior Indebtedness” means
with respect to a Person (i) the
Bank Indebtedness under or in respect of the Senior Credit Facilities and (ii) any other Senior Indebtedness of such Person that,
at the date of determination, has an aggregate principal amount equal to or
under which, at the date of determination, the holders thereof are committed to
lend up to, at least $25.0 million and is specifically designated by such
Person in an agreement or instrument evidencing or governing such Senior
Indebtedness as “Designated Senior Indebtedness” for purposes of this Indenture.


 


14

















 


“Disinterested Directors” means, with respect to any Affiliate
Transaction, one or more members of the Board of Directors of the Company, or
one or more members of the
Board of Directors of a Parent, having no material direct
or indirect financial interest in or with respect to such Affiliate
Transaction.  A member of any such Board
of Directors shall not be deemed to have such a financial interest by reason of
such member’s holding Capital Stock of the Company or any Parent or any
options, warrants or other rights in respect of such Capital Stock.


 


“Disqualified Stock” means, with respect to any Person, any
Capital Stock (other than Management Stock) that by its terms (or by the terms
of any security into which it is convertible or for which it is exchangeable or
exercisable) or upon the happening of any event (other than following the
occurrence of a Change of Control or other similar event described under such
terms as a “change of control,” or an Asset Disposition) (i) matures
or is mandatorily redeemable pursuant to a sinking fund obligation or
otherwise, (ii) is convertible or exchangeable for
Indebtedness or Disqualified Stock or (iii) is redeemable at the
option of the holder thereof (other than following the occurrence of a Change
of Control or other similar event described under such terms as a “change of
control,” or an Asset Disposition), in whole or in part, in each case on or
prior to the final Stated Maturity of the Notes; provided
that Capital Stock issued to any employee benefit plan, or by any such plan to
any employees of the Company or any Subsidiary, shall not constitute
Disqualified Stock solely because it may be required to be repurchased or
otherwise acquired or retired in order to satisfy applicable statutory or
regulatory obligations.


 


“Domestic Subsidiary” means any Restricted Subsidiary of the
Company other than a Foreign Subsidiary.


 


“Equity Offering” means a sale of Capital Stock (x) that is a sale of Capital Stock of the Company
(other than Disqualified Stock), or (y) proceeds
of which in an amount equal to or exceeding the Redemption Amount are
contributed to the equity capital of the Company or any of its Restricted
Subsidiaries.


 


“Euroclear” means Euroclear Bank S.A./N.V., as operator of the
Euroclear System, or any successor securities clearing agency.


 


“Exchange Act” means the Securities Exchange Act of 1934, as
amended.


 


“Exchange Notes” means any of the Company’s 10.75%/11.50% Senior
Toggle Notes due 2015, containing terms substantially identical to the Initial
Notes or any Initial Additional Notes (and any Notes issued in respect of any
of the foregoing Notes pursuant to Section 304, 305, 306,
312(c), 312(d) or 1009) (except that (i) such Exchange Notes may omit terms with respect to
transfer restrictions and may be registered under the Securities Act, and (ii) certain provisions relating to an increase in the
stated rate of interest thereon may be eliminated), that are issued and
exchanged for (a) the Initial Notes, as
provided for in a registration rights agreement relating to such Initial Notes
and this Indenture (including any amendment or supplement hereto), or (b) such Initial Additional Notes as may be provided in
any registration rights agreement relating to such Additional Notes and this
Indenture (including 


 


15

















 


any amendment or supplement hereto) or (c) any Notes that are issued as PIK Interest in respect
of any of the foregoing Notes (and any Notes issued in respect of any of the
foregoing Notes pursuant to Section 304, 305, 306, 312(c),
312(d) or 1009).


 


“Excluded Contribution” means Net Cash Proceeds, or the Fair
Market Value of property or assets, received by the Company as capital
contributions to the Company after the Closing Date or from the issuance or
sale (other than to a Restricted Subsidiary) of Capital Stock (other than
Disqualified Stock or Designated Preferred Stock) of the Company, in each case
to the extent designated as an Excluded Contribution pursuant to an Officer’s
Certificate of the Company and not previously included in the calculation set
forth in Section 409(a)(3)(B)(x) for purposes of determining
whether a Restricted Payment may be made.


 


“Exempt Sale and Leaseback Transaction”
means any Sale and Leaseback Transaction (a) in
which the sale or transfer of property occurs within 90 days of the
acquisition of such property by the Company or any of its Subsidiaries or (b) that involves property with a book value of
$15.0 million or less and is not part of a series of related Sale and
Leaseback Transactions involving property with an aggregate value in excess of
such amount and entered into with a single Person or group of Persons. For
purposes of the foregoing, “Sale and Leaseback Transaction” means any
arrangement with any Person providing for the leasing by the Company or any of
its Subsidiaries of real or personal property that has been or is to be sold or
transferred by the Company or any such Subsidiary to such Person or to any
other Person to whom funds have been or are to be advanced by such Person on
the security of such property or rental obligations of the Company or such
Subsidiary.


 


“Existing 2007 Notes” means the Company’s 6.95% Notes due August 15,
2007 issued under the Existing Notes Indenture.


 


“Existing 2009 Notes” means the Company’s 7.875% Notes due August 15,
2009 issued under the Existing Notes Indenture.


 


“Existing Notes Indenture” means the Indenture between The
ServiceMaster Company Limited Partnership, as issuer, and ServiceMaster Limited
Partnership, as guarantor, and the Existing Notes Trustee, dated as of August 15,
1997, as supplemented by the First Supplemental Indenture thereto, between The
ServiceMaster Company Limited Partnership, as issuer, and ServiceMaster Limited
Partnership, as guarantor, and the Existing Notes Trustee, dated as of August 15,
1997, the Second Supplemental Indenture thereto, between the Company, as
successor by merger to The ServiceMaster Company Limited Partnership and
ServiceMaster Limited Partnership, and the Existing Notes Trustee, dated as of January 1,
1998, the Third Supplemental Indenture thereto, between the Company and the
Existing Notes Trustee, dated as of March 2, 1998 and the Fourth
Supplemental Indenture, between the Company and the Existing Notes Trustee,
dated as of August 10, 1999. For purposes of this definition, “Existing
Notes Trustee” means The Bank of New York Mellon Trust Company, N.A., successor
to Harris Trust and Savings Bank as trustee under the Existing Notes Indenture.


 


16

















 


“Fair Market Value” means, with respect to any asset or
property, the fair market value of such asset or property as determined in good
faith by the Board of Directors, whose determination will be conclusive.


 


“Financing Disposition” means any sale, transfer, conveyance or
other disposition of, or creation or incurrence of any Lien on, property or
assets (a) by the Company or any Subsidiary
thereof to or in favor of any Special Purpose Entity, or by any Special Purpose
Subsidiary, in each case in connection with the Incurrence by a Special Purpose
Entity of Indebtedness, or obligations to make payments to the obligor on
Indebtedness, which may be secured by a Lien in respect of such property or assets
or (b) by
the Company or any Subsidiary thereof to or in favor of any Special Purpose
Entity that is not a Special Purpose Subsidiary.


 


“Foreign Borrowing Base” means the sum of (1) 80%
of the book value of Inventory of Foreign Subsidiaries, (2) 85%
of the book value of Receivables of Foreign Subsidiaries, and (3) cash, Cash Equivalents and Temporary Cash
Investments of Foreign Subsidiaries (in each case, determined as of the end of
the most recently ended fiscal month of the Company for which internal consolidated
financial statements of the Company are available, and, in the case of any
determination relating to any Incurrence of Indebtedness, on a pro forma basis
including (x) any property or assets of a type
described above acquired since the end of such fiscal month and (y) any property or assets of a type described above
being acquired in connection therewith).


 


“Foreign Subsidiary” means (a) any
Restricted Subsidiary of the Company that is not organized under the laws of
the United States of America or any state thereof or the District of Columbia
and any Restricted Subsidiary of such Foreign Subsidiary and (b) any Restricted Subsidiary of the Company that has no
material assets other than securities or Indebtedness of one or more Foreign
Subsidiaries (or Subsidiaries thereof), and intellectual property relating to
such Foreign Subsidiaries (or Subsidiaries thereof) and other assets relating
to an ownership interest in any such securities, Indebtedness, intellectual
property or Subsidiaries.


 


“GAAP” means generally accepted accounting principles in the
United States of America as in effect on the Closing Date (for purposes of the
definitions of the terms “Consolidated Coverage Ratio,”  “Consolidated EBITDA,” “Consolidated
Interest Expense,” “Consolidated Net Income,” “Consolidated Tangible Assets,” “Consolidated
Total Indebtedness,” “Consolidated Total Leverage Ratio” and “Foreign Borrowing
Base,” all defined terms in this Indenture to the extent used in or relating to
any of the foregoing definitions, and all ratios and computations based on any
of the foregoing definitions) and as in effect from time to time (for all other
purposes of this Indenture), including those set forth in the opinions and
pronouncements of the Accounting Principles Board of the American Institute of
Certified Public Accountants and statements and pronouncements of the Financial
Accounting Standards Board or in such other statements by such other entity as
approved by a significant segment of the accounting profession.  All ratios and computations based on GAAP
contained in this Indenture shall be computed in conformity with GAAP.


 


17

















 


“Guarantee” means any obligation, contingent or otherwise, of
any Person directly or indirectly guaranteeing any Indebtedness or other
obligation of any other Person; provided that the term “Guarantee” shall
not include endorsements for collection or deposit in the ordinary course of
business.  The term “Guarantee” used as a
verb has a corresponding meaning.


 


“Guarantor Subordinated Obligations” means, with respect to a
Subsidiary Guarantor, any Indebtedness of such Subsidiary Guarantor (whether
outstanding on the Closing Date or thereafter Incurred) that is expressly
subordinated in right of payment to the obligations of such Subsidiary
Guarantor under its Subsidiary Guarantee pursuant to a written agreement.


 


“Hedging Obligations” of any Person means the obligations of
such Person pursuant to any Interest Rate Agreement, Currency Agreement or
Commodities Agreement.


 


“Holder” or “Noteholder” means the Person in whose name a
Note is registered in the Note Register.


 


“Holding” means CDRSVM Holding, Inc., a Delaware
corporation, and any successor in interest thereto.


 


“Holding Parent” means ServiceMaster Global Holdings, Inc.,
a Delaware corporation, and any successor in interest thereto.


 


“Home Warranty Subsidiary” means any of (a) American
Home Shield Corporation, a Delaware corporation, and any successor in interest
thereto, (b) any Subsidiary of any Home Warranty
Subsidiary referred to in clause (a) above
and (c) any Subsidiary of the Company
that is subject to regulation as a home warranty, service contract, or similar
company (or any Subsidiary thereof).


 


“Incur” means issue, assume, enter into any Guarantee of, incur
or otherwise become liable for; and the terms “Incurs,” “Incurred” and “Incurrence”
shall have a correlative meaning; provided, that any Indebtedness or Capital
Stock of a Person existing at the time such Person becomes a Subsidiary
(whether by merger, consolidation, acquisition or otherwise) shall be deemed to
be Incurred by such Subsidiary at the time it becomes a Subsidiary.  Accrual of interest, the accretion of
accreted value and the payment of interest in the form of additional Indebtedness
will not be deemed to be an Incurrence of Indebtedness.  Any Indebtedness issued at a discount
(including Indebtedness on which interest is payable through the issuance of
additional Indebtedness) shall be deemed Incurred at the time of original
issuance of the Indebtedness at the initial accreted amount thereof.


 


“Indebtedness” means, with respect to any Person on any date of
determination (without duplication):


 


(i) the principal of indebtedness of such Person for borrowed
money,


 


18

















 


(ii) the principal of obligations of such Person evidenced by
bonds, debentures, notes or other similar instruments,


 


(iii) all reimbursement obligations of such Person in respect of
letters of credit, bankers’ acceptances or other similar instruments (the
amount of such obligations being equal at any time to the aggregate then
undrawn and unexpired amount of such letters of credit, bankers’ acceptances or
other instruments plus the aggregate amount of drawings thereunder that have
not then been reimbursed),


 


(iv) all obligations of such Person to pay the deferred and unpaid
purchase price of property (except Trade Payables), which purchase price is due
more than one year after the date of placing such property in final service or
taking final delivery and title thereto,


 


(v) all Capitalized Lease Obligations of such Person,


 


(vi) the redemption, repayment or other repurchase amount of such
Person with respect to any Disqualified Stock of such Person or (if such Person
is a Subsidiary of the Company other than a Subsidiary Guarantor) any Preferred
Stock of such Subsidiary, but excluding, in each case, any accrued dividends
(the amount of such obligation to be equal at any time to the maximum fixed
involuntary redemption, repayment or repurchase price for such Capital Stock,
or if less (or if such Capital Stock has no such fixed price), to the
involuntary redemption, repayment or repurchase price therefor calculated in
accordance with the terms thereof as if then redeemed, repaid or repurchased,
and if such price is based upon or measured by the fair market value of such
Capital Stock, such fair market value shall be as determined in good faith by
the Board of Directors or the board of directors or other governing body of the
issuer of such Capital Stock),


 


(vii) all Indebtedness of other Persons secured by a Lien on any
asset of such Person, whether or not such Indebtedness is assumed by such
Person; provided
that the amount of Indebtedness of such Person shall be the lesser
of (A) the fair market value of such asset at such date of determination
(as determined in good faith by the Company) and (B) the amount of such
Indebtedness of such other Persons,


 


(viii) all Guarantees by such Person of Indebtedness of other
Persons, to the extent so Guaranteed by such Person, and


 


(ix) to the extent not otherwise included in this definition, net
Hedging Obligations of such Person (the amount of any such obligation to be
equal at any time to the termination value of such agreement or arrangement
giving rise to such Hedging Obligation that would be payable by such Person at
such time);


 


provided that
Indebtedness shall not include Contingent Obligations Incurred in the ordinary
course of business.


 


19

















 


The amount of Indebtedness of any Person at any date shall be
determined as set forth above or otherwise provided in this Indenture, or
otherwise shall equal the amount thereof that would appear as a liability on a
balance sheet of such Person (excluding any notes thereto) prepared in
accordance with GAAP.


 


“Initial Additional Notes” means Additional Notes issued in an
offering not registered under the Securities Act and any Notes
issued in connection with the payment of PIK Interest on any such Additional
Notes (and any Notes issued in respect of any of the foregoing
Notes pursuant to Section 304, 305, 306, 312(c),
312(d) or 1009).


 


“Initial Notes” means any of the Company’s 10.75%/11.50% Senior
Toggle Notes due 2015 issued on the Issue Date and any Notes issued in
connection with the payment of PIK Interest on any such Initial Notes (and
any Notes issued in respect of any of the foregoing Notes pursuant to Section 304,
305, 306, 312(c), 312(d) or 1009).


 


“interest,” with respect to the Notes, means interest on the
Notes and, except for purposes of Article IX, additional or special
interest pursuant to the terms of any Note.


 


“Interest Payment Date” means, when used with respect to any
Note and any installment of interest thereon, the date specified in such Note
as the fixed date on which such installment of interest is due and payable, as
set forth in such Note.


 


“Interest Rate Agreement” means, with respect to any Person, any
interest rate protection agreement, future agreement, option agreement, swap
agreement, cap agreement, collar agreement, hedge agreement or other similar
agreement or arrangement (including derivative agreements or arrangements), as
to which such Person is party or a beneficiary.


 


“Inventory” means goods held for sale, lease or use by a Person
in the ordinary course of business, net of any reserve for goods that have been
segregated by such Person to be returned to the applicable vendor for credit,
as determined in accordance with GAAP.


 


“Investment” in any Person by any other Person means any direct
or indirect advance, loan or other extension of credit (other than to
customers, dealers, licensees, franchisees, suppliers, consultants, directors,
officers or employees of any Person in the ordinary course of business) or
capital contribution (by means of any transfer of cash or other property to
others or any payment for property or services for the account or use of
others) to, or any purchase or acquisition of Capital Stock, Indebtedness or
other similar instruments issued by, such Person.  For purposes of the definition of “Unrestricted
Subsidiary” and Section 409 only, (i) “Investment”
shall include the portion (proportionate to the Company’s equity interest in
such Subsidiary) of the Fair Market Value of the net assets of any Subsidiary
of the Company at the time that such Subsidiary is designated an Unrestricted
Subsidiary, provided that upon a redesignation of such Subsidiary as a
Restricted Subsidiary, the Company shall be deemed to continue to have a
permanent “Investment” in an Unrestricted Subsidiary in an amount (if positive)
equal to (x) the Company’s “Investment” in
such Subsidiary at the time of such redesignation less (y) the
portion (proportionate to the Company’s equity interest in such 


 


20

















 


Subsidiary) of the Fair Market Value of the net assets
of such Subsidiary at the time of such redesignation, (ii) any
property transferred to or from an Unrestricted Subsidiary shall be valued at
its fair market value (as determined in good faith by the Company) at the time
of such transfer and (iii) for purposes of Section 409(a)(3)(C), the
amount resulting from the redesignation of any Unrestricted Subsidiary as a
Restricted Subsidiary shall be the Fair Market Value of the Investment in such
Unrestricted Subsidiary at the time of such redesignation (excluding the amount
of such Investment then outstanding pursuant to clause (xv) or (xviii) of the
definition of the term “Permitted Investments” or Sections 409(b)(vii) or
(xii) of this Indenture). 
Guarantees shall not be deemed to be Investments.  The amount of any Investment outstanding at
any time shall be the original cost of such Investment, reduced (at the Company’s
option) by any dividend, distribution, interest payment, return of capital,
repayment or other amount or value received in respect of such Investment; provided, that to the extent that the amount of Restricted Payments
outstanding at any time pursuant to Section 409(a) is so
reduced by any portion of any such amount or value that would otherwise be
included in the calculation of Consolidated Net Income, such portion of such
amount or value shall not be so included for purposes of calculating the amount
of Restricted Payments that may be made pursuant to Section 409(a).


 


“Investment Grade Securities” means (i) securities issued or directly and fully guaranteed
or insured by the United States government or any agency or instrumentality
thereof (other than Cash Equivalents); (ii) debt
securities or debt instruments with an Investment Grade Rating, but excluding
any debt securities or instruments constituting loans or advances among the
Company and its Subsidiaries; (iii) investments
in any fund that invests exclusively in investments of the type described in
clauses (i) and (ii),
which fund may also hold immaterial amounts of cash pending investment or
distribution; and (iv) corresponding
instruments in countries other than the United States customarily utilized for
high quality investments.  As used
herein, “Investment Grade Rating” means a rating equal to or higher than
Baa3 (or the equivalent) by Moody’s and BBB- (or the equivalent) by S&P, or
any equivalent rating by any other nationally recognized rating agency.


 


“Investment Holding” means CDRSVM Investment Holding, Inc.,
a Delaware corporation, and any successor in interest thereto.


 


“Investors” means (i) the CD&R Investors, BAS
Capital Funding Corporation, Banc of America Capital Investors V, L.P.,
Citigroup Capital Partners II 2007 Citigroup Investment, L.P., Citigroup
Capital Partners II Employee Master Fund, L.P., Citigroup Capital Partners II
Onshore, L.P., Citigroup Capital Partners II Cayman Holdings, L.P., CPE
Co-Investment (ServiceMaster) LLC and J.P. Morgan Ventures Corporation, (ii) any
Person that acquires Voting Stock of Holding on or prior to the Closing Date
and any Affiliate of such Person, and (iii) any of their respective
legal successors.


 


“Issue Date” means the first date on which Initial Notes are
issued.


 


“Liabilities” means, collectively, any and all claims, obligations,
liabilities, causes of action, actions, suits, proceedings, investigations,
judgments, decrees, losses, damages, fees, costs and expenses (including
without limitation interest, penalties and fees and disbursements of 


 


21

















 


attorneys, accountants, investment bankers and other
professional advisors), in each case whether incurred, arising or existing with
respect to third parties or otherwise at any time or from time to time.


 


“Lien” means any mortgage, pledge, security interest,
encumbrance, lien or charge of any kind (including any conditional sale or
other title retention agreement or lease in the nature thereof).


 


“Management Advances” means (1) loans
or advances made to directors, officers, 
employees or consultants of any Parent, the Company or any Restricted
Subsidiary (x) in respect of travel,
entertainment or moving-related expenses incurred in the ordinary course of
business, (y) in respect of moving-related
expenses incurred in connection with any closing or consolidation of any
facility, or (z) in the ordinary course of
business and (in the case of this clause (z))
not exceeding $10.0 million in the aggregate outstanding at any time, (2) promissory notes of Management Investors acquired in
connection with the issuance of Management Stock to such Management Investors, (3) Management Guarantees, or (4) other
Guarantees of borrowings by Management Investors in connection with the
purchase of Management Stock, which Guarantees are permitted under Section 407.


 


“Management Agreements” means, collectively, (i) the
Stock Subscription Agreements, each dated as of the Closing Date, between
Holding Parent and each of the Investors party thereto, (ii) the Transaction Fee Agreement, dated as of the Closing
Date, among Holding Parent and ServiceMaster and each of CD&R, Banc of
America Capital Investors V, L.P., Citigroup Alternative Investments LLC and
J.P. Morgan Ventures Corporation, (iii) the
Consulting Agreement, dated as of the Closing Date, among Holding Parent,
ServiceMaster and CD&R, (iv) the
Indemnification Agreements, each dated as of the Closing Date, among Holding
Parent and ServiceMaster and each of (a) CD&R
and each CD&R Investor, (b) BAS
Capital Funding Corporation and Banc of America Capital Investors V, L.P., (c) Citigroup Capital Partners II 2007 Citigroup
Investment, L.P., Citigroup Capital Partners II Employee Master Fund, L.P.,
Citigroup Capital Partners II Onshore, L.P., Citigroup Capital Partners II
Cayman Holdings, L.P. and CPE Co Investment (ServiceMaster) LLC and (d) J.P. Morgan Ventures Corporation, or Affiliates
thereof, respectively, (v) the
Registration Rights Agreement, dated as of the Closing Date, among Holding
Parent and the Investors party thereto and any other Person party thereto from
time to time, (vi) the Stockholders
Agreement, dated as of the Closing Date, by and among Holding Parent and the
Investors party thereto and any other Person party thereto from time to time
and (vii) any other agreement primarily
providing for indemnification and/or contribution for the benefit of any
Permitted Holder in respect of Liabilities resulting from, arising out of or in
connection with, based upon or relating to (a) any
management consulting, financial advisory, financing, underwriting or placement
services or other investment banking activities, (b) any
offering of securities or other financing activity or arrangement of or by any
Parent or any of its Subsidiaries or (c) any
action or failure to act of or by any Parent or any of its Subsidiaries (or any
of their respective predecessors); in each case as the same may be amended,
supplemented, waived or otherwise modified from time to time in accordance with
the terms thereof and of this Indenture.


 


22

















 


“Management Guarantees” means guarantees (x) of
up to an aggregate principal amount outstanding at any time of
$25.0 million of borrowings by Management Investors in connection with
their purchase of Management Stock or (y) made on
behalf of, or in respect of loans or advances made to, directors, officers,
employees or consultants of any Parent, the Company or any Restricted
Subsidiary (1) in respect of travel,
entertainment and moving-related expenses incurred in the ordinary course of
business, or (2) in the ordinary course of
business and (in the case of this clause (2))
not exceeding $10.0 million in the aggregate outstanding at any time.


 


“Management Indebtedness” means
Indebtedness Incurred to any Management Investor to finance the repurchase or
other acquisition of Capital Stock of the Company or any Parent (including any
options, warrants or other rights in respect thereof) from any Management
Investor, which repurchase or other acquisition of Capital Stock is permitted
under Section 409.


 


“Management Investors” means the officers, directors, employees
and other members of the management of any Parent, the Company or any of their
respective Subsidiaries, or family members or relatives thereof (provided that, solely for purposes
of the definition of “Permitted Holders,” such relatives shall include only
those Persons who are or become Management Investors in connection with estate
planning for or inheritance from other Management Investors, as determined in
good faith by the Company, which determination shall be conclusive), or trusts,
partnerships or limited liability companies for the benefit of any of the
foregoing, or any of their heirs, executors, successors and legal
representatives, who at any date beneficially own or have the right to acquire,
directly or indirectly, Capital Stock of the Company or any Parent.


 


“Management Stock” means Capital Stock of the Company or any
Parent (including any options, warrants or other rights in respect thereof)
held by any of the Management Investors.


 


“Material Subsidiary” means any
Restricted Subsidiary, other than one or more Restricted Subsidiaries
designated by the Company that individually and in the aggregate (if considered
a single Person) do not constitute a Significant Subsidiary.


 


“Merger” means the merger of
Acquisition Co. with and into ServiceMaster, with ServiceMaster as the
surviving corporation.


 


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


 


“Net Available Cash” from an Asset Disposition means cash
payments received (including any cash payments received by way of deferred
payment of principal pursuant to a note or installment receivable or otherwise,
but only as and when received, but excluding any other consideration received
in the form of assumption by the acquiring Person of Indebtedness or other
obligations relating to the properties or assets that are the subject of such
Asset Disposition or received in any other non-cash form) therefrom, in each
case net of (i) all legal, title and
recording tax expenses, commissions and other fees and expenses incurred, and
all


 


23
















 


Federal, state, provincial, foreign and local taxes
required to be paid or to be accrued as a liability under GAAP, as a
consequence of such Asset Disposition (including as a consequence of any
transfer of funds in connection with the application thereof in accordance with
Section 411), (ii) all payments made, and all
installment payments required to be made, on any Indebtedness (x) that is secured by any assets subject to such Asset
Disposition, in accordance with the terms of any Lien upon such assets, or (y) that must by its terms, or in order to obtain a
necessary consent to such Asset Disposition, or by applicable law, be repaid
out of the proceeds from such Asset Disposition, including but not limited to
any payments required to be made to increase borrowing availability under any
revolving credit facility, (iii) all distributions and
other payments required to be made to minority interest holders in Subsidiaries
or joint ventures as a result of such Asset Disposition, or to any other Person
(other than the Company or a Restricted Subsidiary) owning a beneficial
interest in the assets disposed of in such Asset Disposition, (iv) any liabilities or obligations associated with the
assets disposed of in such Asset Disposition and retained, indemnified or insured
by the Company or any Restricted Subsidiary after such Asset Disposition,
including without limitation pension and other post-employment benefit
liabilities, liabilities related to environmental matters, and liabilities
relating to any indemnification obligations associated with such Asset
Disposition, and (v) the amount of any
purchase price or similar adjustment (x) claimed
by any Person to be owed by the Company or any Restricted Subsidiary, until
such time as such claim shall have been settled or otherwise finally resolved,
or (y) paid or payable by the Company
or any Restricted Subsidiary, in either case in respect of such Asset
Disposition.


 


“Net Cash Proceeds,” with respect to any issuance or sale of any
securities or Indebtedness of the Company or any Subsidiary by the Company or
any Subsidiary, or any capital contribution, means the cash proceeds of such
issuance, sale or contribution net of attorneys’ fees, accountants’ fees,
underwriters’ or placement agents’ fees, discounts or commissions and
brokerage, consultant and other fees actually incurred in connection with such
issuance, sale or contribution and net of taxes paid or payable as a result
thereof.


 


“Non-U.S. Person” means a Person who is not a U.S. person, as
defined in Regulation S.


 


“Notes” means the Initial Notes, any Exchange Notes, any
Additional Notes and any notes issued in respect thereof pursuant to Section 304,
305, 306, 312(c), 312(d) or 1009, and
shall include any increase in the principal amount thereof as a result of a PIK
Payment in accordance with this Indenture.


 


“Obligations” means, with respect to any Indebtedness, any
principal, premium (if any), interest (including interest accruing on or after
the filing of any petition in bankruptcy or for reorganization relating to the
Company or any Restricted Subsidiary whether or not a claim for post-filing
interest is allowed in such proceedings), fees, charges, expenses,
reimbursement obligations, Guarantees of such Indebtedness (or of Obligations
in respect thereof), other monetary obligations of any nature and all other
amounts payable thereunder or in respect thereof.


 


24

















 


“Officer” means, with respect to the Company or any other
obligor upon the Notes, the Chairman of the Board, the President, the Chief
Executive Officer, the Chief Financial Officer, any Vice President, the
Controller, the Treasurer or the Secretary (a) of such
Person or (b) if such Person is owned or managed by a
single entity, of such entity (or any other individual designated as an “Officer”
for the purposes of this Indenture by the Board of Directors).


 


“Officer’s Certificate” means, with respect to the Company or
any other obligor upon the Notes, a certificate signed by one Officer of such
Person.


 


“Opinion of Counsel” means a written opinion from legal counsel
who is reasonably acceptable to the Trustee. 
The counsel may be an employee of or counsel to the Company or the
Trustee.


 


“Original
Notes” means the Initial Notes and any Exchange Notes issued in exchange
therefor.


 


“Outstanding,” when used with respect to Notes means, as of the
date of determination, all Notes theretofore authenticated and delivered under
this Indenture, except:


 


(i)            Notes theretofore
cancelled by the Trustee or delivered to the Trustee for cancellation;


 


(ii)           Notes for whose
payment or redemption money in the necessary amount has been theretofore
deposited with the Trustee or any Paying Agent in trust for the Holders of such
Notes, provided that, if such
Notes are to be redeemed, notice of such redemption has been duly given
pursuant to this Indenture or provision therefor reasonably satisfactory to the
Trustee has been made; and


 


(iii)          Notes in exchange
for or in lieu of which other Notes have been authenticated and delivered pursuant
to this Indenture.


 


A Note does not cease to be Outstanding because the
Company or any Affiliate of the Company holds the Note, provided
that in determining whether the Holders of the requisite amount of Outstanding
Notes have given any request, demand, authorization, direction, notice, consent
or waiver hereunder, Notes owned by the Company or any Affiliate of the Company
shall be disregarded and deemed not to be Outstanding, except that, for the
purpose of determining whether the Trustee shall be protected in relying on any
such request, demand, authorization, direction, notice, consent or waiver, only
Notes which a Responsible Officer of the Trustee actually knows are so owned
shall be so disregarded.  Notes so owned
that have been pledged in good faith may be regarded as Outstanding if the
pledgee establishes to the reasonable satisfaction of the Trustee the pledgee’s
right to act with respect to such Notes and that the pledgee is not the Company
or an Affiliate of the Company.


 


“Parent” means any of Holding Parent, Holding, Investment
Holding, and any Other Parent and any other Person that is a Subsidiary of
Holding Parent, Holding, Investment 


 


25

















 


Holding, or any Other Parent and of which the Company is
a Subsidiary.  As used herein, “Other
Parent” means a Person of which the Company becomes a Subsidiary after the
Closing Date, provided that either (x) immediately
after the Company first becomes a Subsidiary of such Person, more than 50% of
the Voting Stock of such Person shall be held by one or more Persons that held
more than 50% of the Voting Stock of a Parent of the Company immediately prior
to the Company first becoming such Subsidiary or (y) such
Person shall be deemed not to be an Other Parent for the purpose of determining
whether a Change of Control shall have occurred by reason of the Company first
becoming a Subsidiary of such Person.


 


“Parent Expenses” means (i) costs
(including all professional fees and expenses) incurred by any Parent in connection
with its reporting obligations under, or in connection with compliance with,
applicable laws or applicable rules of any governmental, regulatory or
self-regulatory body or stock exchange, this Indenture or any other agreement
or instrument relating to Indebtedness of the Company or any Restricted
Subsidiary, including in respect of any reports filed with respect to the
Securities Act, the Exchange Act or the respective rules and regulations
promulgated thereunder, (ii) expenses incurred by any
Parent in connection with the acquisition, development, maintenance, ownership,
prosecution, protection and defense of its intellectual property and associated
rights (including but not limited to trademarks, service marks, trade names,
trade dress, patents, copyrights and similar rights, including registrations
and registration or renewal applications in respect thereof; inventions,
processes, designs, formulae, trade secrets, know-how, confidential
information, computer software, data and documentation, and any other
intellectual property rights; and licenses of any of the foregoing) to the
extent such intellectual property and associated rights relate to the business
or businesses of the Company or any Subsidiary thereof, (iii) indemnification
obligations of any Parent owing to directors, officers, employees or other
Persons under its charter or by-laws or pursuant to written agreements with any
such Person, or obligations in respect of director and officer insurance
(including premiums therefor), (iv) other
operational expenses of any Parent incurred in the ordinary course of business,
and (v) fees and expenses incurred by
any Parent in connection with any offering of Capital Stock or Indebtedness, (w) which offering is not completed, or  (x) where
the net proceeds of such offering are intended to be received by or contributed
or loaned to the Company or a Restricted Subsidiary, or (y) in
a prorated amount of such expenses in proportion to the amount of such net
proceeds intended to be so received, contributed or loaned, or (z) otherwise on an interim basis prior to completion of
such offering so long as any Parent shall cause the amount of such expenses to
be repaid to the Company or the relevant Restricted Subsidiary out of the
proceeds of such offering promptly if completed.


 


“Paying Agent” means any Person authorized by the Company to pay
the principal of (and premium, if any) or interest on any Notes on behalf of
the Company; provided that
neither the Company nor any of its Affiliates shall act as Paying Agent for
purposes of Section 1102 or Section 1205.  The Trustee will initially act as Paying
Agent for the Notes.


 


“Permitted Holder” means any of the following:  (i) any of
the Investors or Management Investors, and any of their respective Affiliates; (ii) any investment fund or vehicle managed or sponsored
by CD&R, BAS Capital Funding Corporation, Banc of America Capital 


 


26

















 


Investors V, L.P., Citigroup Private Equity LP, J.P.
Morgan Ventures Corporation or any Affiliate thereof, and any Affiliate of or
successor to any such investment fund or vehicle; (iii) any
limited or general partners of, or other investors in, any Investor, BAS
Capital Funding Corporation, Banc of America Capital Investors V, L.P., Citigroup
Private Equity LP, J.P. Morgan Ventures Corporation or any Affiliate thereof,
or any such investment fund or vehicle (as to any such limited partner or other
investor, solely to the extent of any Capital Stock of the Company or any
Parent actually received by way of dividend or distribution from any such
Investor, Affiliate, or investment fund or vehicle); and (iv) any
Person acting in the capacity of an underwriter in connection with a public or
private offering of Capital Stock of any Parent or the Company. In addition,
any ‘‘person’’ (as such term is used in Sections 13(d) and 14(d) of
the Exchange Act) whose status as a ‘‘beneficial owner’’ (as defined in Rules 13d-3
and 13d-5 under the Exchange Act) constitutes or results in a Change of Control
in respect of which a Change of Control Offer is made in accordance with the
requirements of the Indenture, together with its Affiliates, shall thereafter
constitute Permitted Holders.


 


“Permitted Investment” means an Investment by the Company or any
Restricted Subsidiary in, or consisting of, any of the following:


 


(i) a Restricted Subsidiary, the Company, or a Person that will,
upon the making of such Investment, become a Restricted Subsidiary (and any Investment held by such Person that
was not acquired by such Person in contemplation of so becoming a Restricted
Subsidiary);


 


(ii) another Person if as a result of such Investment such other
Person is merged or consolidated with or into, or transfers or conveys all or
substantially all its assets to, or is liquidated into, the Company or a
Restricted Subsidiary (and,
in each case, any Investment held by such other Person that was not acquired by
such Person in contemplation of such merger, consolidation or transfer);


 


(iii) Temporary Cash Investments, Investment Grade Securities or
Cash Equivalents;


 


(iv) receivables owing to the Company or any Restricted
Subsidiary, if created or acquired in the ordinary course of business;


 


(v) any securities or other Investments received as consideration
in, or retained in connection with, sales or other dispositions of property or
assets, including Asset Dispositions made in compliance with Section 411;


 


(vi) securities or other Investments received in settlement of
debts created in the ordinary course of business and owing to, or of other
claims asserted by, the Company or any Restricted Subsidiary, or as a result of
foreclosure, perfection or enforcement of any Lien, or in satisfaction of
judgments, including in connection with any bankruptcy proceeding or other
reorganization of another Person;


 


27

















 


(vii) Investments in existence or made pursuant to legally binding
written commitments in existence on the Closing Date;


 


(viii) Currency Agreements, Interest Rate Agreements, Commodities
Agreements and related Hedging Obligations, which obligations are Incurred in
compliance with Section 407;


 


(ix) pledges or deposits (x) with
respect to leases or utilities provided to third parties in the ordinary course
of business or (y) otherwise described in
the definition of “Permitted Liens” or made in connection with Liens permitted
under Section 413;


 


(x) (1) Investments in or by any
Special Purpose Subsidiary, or in connection with a Financing Disposition
(described in clause (a) of the
definition thereof) by or to or in favor of any Special Purpose Entity,
including Investments of funds held in accounts permitted or required by the
arrangements governing such Financing Disposition or any related Indebtedness,
or (2) any promissory note issued by
the Company, or any Parent, provided that if such Parent receives cash from the
relevant Special Purpose Entity in exchange for such note, an equal cash amount
is contributed by any Parent to the Company;


 


(xi) bonds secured by assets leased to and operated by the Company or
any Restricted Subsidiary that were issued in connection with the financing of
such assets so long as the Company or any Restricted Subsidiary may obtain
title to such assets at any time by paying a nominal fee, canceling such bonds
and terminating the transaction;


 


(xii) Notes;


 


(xiii) any Investment to the extent made using Capital Stock of the
Company (other than Disqualified Stock), or Capital Stock of any Parent as
consideration;


 


(xiv) Management Advances;


 


(xv) Investments in Related Businesses in an aggregate amount
outstanding at any time not to exceed the greater of $75.0 million and
5.0% of Consolidated Tangible Assets;


 


(xvi) any transaction to the extent it constitutes an Investment that
is permitted by and made in accordance with Section 412(b) (except
transactions described in clauses (i), (v) and (vi) of
such paragraph), including
any Investment pursuant to any transaction described in clause (ii) of such paragraph (whether or not any Person party
thereto is at any time an Affiliate of the Company);


 


(xvii) any Investment (x) by
any Captive Insurance Subsidiary in connection with its provision of insurance
to the Company or any of its Subsidiaries or (y) by
any Home Warranty Subsidiary in connection with its provision of home warranty,
service contract or 


 


28

















 


similar contracts or
policies on behalf of the Company or its Subsidiaries, in each case which
Investment is made in the ordinary course of business of such Captive Insurance
Subsidiary or such Home Warranty Subsidiary, as the case may be, or by reason
of applicable law, rule, regulation or order, or is required or approved by any
regulatory authority having jurisdiction over such Captive Insurance Subsidiary
or such Home Warranty Subsidiary or their respective businesses, as applicable;
and


 


(xviii) other Investments in an aggregate amount outstanding at any
time not to exceed the greater of $100.0 million and 7.5% of Consolidated
Tangible Assets.


 


If any Investment pursuant to clause (xv)
or (xviii) above, or to Section 409(b)(vii), as
applicable, is made in any Person that is not a Restricted Subsidiary
and such Person thereafter becomes a Restricted Subsidiary, such Investment
shall thereafter be deemed to have been made pursuant to clause (i) above
and not to clause (xv) or (xviii) above or to Section 409(b)(vii), as applicable,
for so long as such Person continues to be a Restricted Subsidiary.


 


                “Permitted
Liens” means:


 


(a) Liens for taxes, assessments or other governmental charges not
yet delinquent or the nonpayment of which in the aggregate would not reasonably
be expected to have a material adverse effect on the Company and its Restricted
Subsidiaries or that are being contested in good faith and by appropriate
proceedings if adequate reserves with respect thereto are maintained on the
books of the Company or a Subsidiary thereof, as the case may be, in accordance
with GAAP;


 


(b) carriers’, warehousemen’s, mechanics’, landlords’, materialmen’s,
repairmen’s or other like Liens arising in the ordinary course of business in
respect of obligations that are not overdue for a period of more than 60 days
or that are bonded or that are being contested in good faith and by appropriate
proceedings;


 


(c) pledges, deposits or Liens in connection with workers’
compensation, unemployment insurance and other social security and other
similar legislation or other insurance-related obligations (including, without
limitation, pledges or deposits securing liability to insurance carriers under
insurance or self-insurance arrangements);


 


(d) pledges, deposits or Liens to secure the performance of bids,
tenders, trade, government or other contracts (other than for borrowed money),
obligations for utilities, leases, licenses, statutory obligations, completion
guarantees, surety, judgment, appeal or performance bonds, other similar bonds,
instruments or obligations, and other obligations of a like nature incurred in
the ordinary course of business;


 


(e) easements (including reciprocal easement agreements),
rights-of-way, building, zoning and similar restrictions, utility agreements,
covenants, reservations, restrictions, encroachments, charges, and other
similar encumbrances or title defects 


 


29

















 


incurred, or leases or subleases granted to others, in
the ordinary course of business, which do not in the aggregate materially
interfere with the ordinary conduct of the business of the Company and its
Restricted Subsidiaries, taken as a whole;


 


(f) Liens existing on, or provided for under written arrangements
existing on, the Closing Date, or (in the case of any such Liens securing
Indebtedness of the Company or any of its Subsidiaries existing or arising
under written arrangements existing on the Closing Date) securing any
Refinancing Indebtedness in respect of such Indebtedness so long as the Lien
securing such Refinancing Indebtedness is limited to all or part of the same
property or assets (plus improvements, accessions, proceeds or dividends or
distributions in respect thereof) that secured (or under such written
arrangements could secure) the original Indebtedness;


 


(g) (i) mortgages, liens,
security interests, restrictions, encumbrances or any other matters of record
that have been placed by any developer, landlord or other third party on
property over which the Company or any Restricted Subsidiary of the Company has
easement rights or on any leased property and subordination or similar
agreements relating thereto and (ii) any condemnation or
eminent domain proceedings affecting any real property;


 


(h) Liens securing Indebtedness (including Liens securing any
Obligations in respect thereof) consisting of Hedging Obligations, Purchase
Money Obligations or Capitalized Lease Obligations Incurred in compliance with Section 407;


 


(i) Liens arising out of judgments, decrees, orders or awards in
respect of which the Company or any Restricted Subsidiary shall in good faith
be prosecuting an appeal or proceedings for review, which appeal or proceedings
shall not have been finally terminated, or if the period within which such
appeal or proceedings may be initiated shall not have expired;


 


(j) leases, subleases, licenses or sublicenses to or from third
parties;


 


(k) Liens securing Indebtedness (including Liens securing any
Obligations in respect thereof) consisting of (1) Indebtedness Incurred in
compliance with Section 407(b)(i), Section 407(b)(iv), Section 407(b)(v),
Section 407(b)(vii), Section 407(b)(viii), Section 407(b)(ix) or
Section 407(b)(x), or Section 407(b)(iii) (other
than (x) Refinancing Indebtedness
Incurred in respect of Indebtedness described in Section 407(a) or
(y) Continuing Notes and Refinancing
Indebtedness Incurred in respect thereof), (2) Bank
Indebtedness, (3) the Notes, (4) Indebtedness of any Restricted Subsidiary that is
not a Subsidiary Guarantor, (5) Indebtedness
or other obligations of any Special Purpose Entity, or (6) obligations
in respect of Management Advances or Management Guarantees; in each case
including Liens securing any Guarantee of any thereof;


 


30

















 


(1) Liens existing on property or assets of a Person at the time
such Person becomes a Subsidiary of the Company (or at the time the Company or
a Restricted Subsidiary acquires such property or assets, including any
acquisition by means of a merger or consolidation with or into the Company or
any Restricted Subsidiary); provided, however,
that such Liens are not created in connection with, or in contemplation
of, such other Person becoming such a Subsidiary (or such acquisition of such
property or assets), and that such Liens are limited to all or part of the same
property or assets (plus improvements, accessions, proceeds or dividends or
distributions in respect thereof) that secured (or, under the written
arrangements under which such Liens arose, could secure) the obligations to
which such Liens relate;


 


(m) Liens on Capital Stock, Indebtedness or other securities of an
Unrestricted Subsidiary that secure Indebtedness or other obligations of such
Unrestricted Subsidiary;


 


(n) any encumbrance or restriction (including, but not limited to,
put and call agreements) with respect to Capital Stock of any joint venture or
similar arrangement pursuant to any joint venture or similar agreement;


 


(o) Liens securing Indebtedness (including Liens securing any
Obligations in respect thereof) consisting of Refinancing Indebtedness Incurred
in respect of any Indebtedness secured by, or securing any refinancing,
refunding, extension, renewal or replacement (in whole or in part) of any other
obligation secured by, any other Permitted Liens, provided that any
such new Lien is limited to all or part of the same property or assets (plus
improvements, accessions, proceeds or dividends or distributions in respect
thereof) that secured (or, under the written arrangements under which the
original Lien arose, could secure) the obligations to which such Liens relate;


 


(p) Liens (1) arising
by operation of law (or by agreement to the same effect) in the ordinary course
of business, (2) on property or assets
under construction (and related rights) in favor of a contractor or developer
or arising from progress or partial payments by a third party relating to such
property or assets, (3) on
receivables (including related rights), (4) on cash
set aside at the time of the Incurrence of any Indebtedness or government
securities purchased with such cash, in either case to the extent that such
cash or government securities prefund the payment of interest on such Indebtedness
and are held in an escrow account or similar arrangement to be applied for such
purpose, (5) securing or arising by reason of
any netting or set-off arrangement entered into in the ordinary course of
banking or other trading activities (including in connection with purchase orders and other agreements with
customers), (6) in
favor of the Company or any Subsidiary (other than Liens on property or assets
of the Company or any Subsidiary Guarantor in favor of any Subsidiary that is
not a Subsidiary Guarantor), (7) arising
out of conditional sale, title retention, consignment or similar arrangements
for the sale of goods entered into in the ordinary course of business, (8) on inventory
or other goods and proceeds securing obligations in respect of bankers’
acceptances issued or created to facilitate the purchase, shipment or storage
of such inventory or other goods, (9) relating
to 


 


31

















 


pooled deposit or sweep accounts to permit
satisfaction of overdraft, cash pooling or similar obligations incurred in the
ordinary course of business, (10) attaching
to commodity trading or other brokerage accounts incurred in the ordinary
course of business, (11) arising
in connection with repurchase agreements permitted under Section 407
on assets that are the subject of such repurchase agreements or (12) in favor of any Special
Purpose Entity in connection with any Financing Disposition; and


 


(q) other Liens securing obligations incurred in the ordinary
course of business, which obligations do not exceed $50.0 million at any
time outstanding.


 


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


 


“Place of Payment” means a city or any political subdivision
thereof in which any Paying Agent appointed pursuant to Article III
is located.


 


“Predecessor Notes” of any particular Note means every previous
Note evidencing all or a portion of the same debt as that evidenced by such
particular Note; and, for the purposes of this definition, any Note
authenticated and delivered under Section 306 in lieu of a
mutilated, lost, destroyed or stolen Note shall be deemed to evidence the same
debt as the mutilated, lost, destroyed or stolen Note.


 


“Preferred Stock” as applied to the Capital Stock of any
corporation means Capital Stock of any class or classes (however designated)
that by its terms is preferred as to the payment of dividends, or as to the
distribution of assets upon any voluntary or involuntary liquidation or
dissolution of such corporation, over shares of Capital Stock of any other
class of such corporation.


 


“Purchase Money Obligations” means any Indebtedness Incurred to
finance or refinance the acquisition, leasing, construction or improvement of
property (real or personal) or assets, and whether acquired through the direct
acquisition of such property or assets or the acquisition of the Capital Stock
of any Person owning such property or assets, or otherwise.


 


“QIB” or “Qualified Institutional Buyer” means a “qualified
institutional buyer,” as that term is defined in Rule 144A.


 


“Receivable” means a right to receive payment pursuant to an
arrangement with another Person pursuant to which such other Person is
obligated to pay, as determined in accordance with GAAP.


 


“Redemption Date,” when used with respect to any Note to be
redeemed or purchased, means the date fixed for such redemption or purchase by
or pursuant to this Indenture and the Notes.


 


32

















 


“Reference Date” means April 1, 2007.


 


“refinance” means refinance, refund, replace, renew, repay,
modify, restate, defer, substitute, supplement, reissue, resell or extend
(including pursuant to any defeasance or discharge mechanism); and the terms “refinances,”
“refinanced” and “refinancing” as used for any purpose in this Indenture shall
have a correlative meaning.


 


                “Refinancing Indebtedness”
means Indebtedness that is Incurred to refinance any Indebtedness existing on
the date of this Indenture or Incurred in compliance with this Indenture
(including Indebtedness of the Company that refinances Indebtedness of any
Restricted Subsidiary (to the extent permitted in this Indenture) and
Indebtedness of any Restricted Subsidiary that refinances Indebtedness of
another Restricted Subsidiary) including Indebtedness that refinances
Refinancing Indebtedness; provided, that (1)(x) if the Indebtedness being
refinanced is Subordinated Obligations or Guarantor Subordinated Obligations,
the Refinancing Indebtedness has a final Stated Maturity at the time such
Refinancing Indebtedness is Incurred that is equal to or greater than the final
Stated Maturity of the Indebtedness being refinanced (or if shorter, the Notes)
or (y) if the Indebtedness being
refinanced is Continuing Notes, the Refinancing Indebtedness has a final Stated
Maturity at the time such Refinancing Indebtedness is Incurred that is equal to
or greater than the final Stated Maturity of the Indebtedness being refinanced
(or if shorter, the Notes) and, if such Refinancing Indebtedness is Guaranteed
by any Restricted Subsidiary of the Company, each such Guarantee shall be
subordinated to the prior payment in full of the Notes on terms consistent with
those for senior subordinated debt securities issued by companies sponsored by
CD&R or otherwise customary (in each case, determined in good faith by the
Company), (2) such Refinancing Indebtedness is
Incurred in an aggregate principal amount (or if issued with original issue
discount, an aggregate issue price) that is equal to or less than the sum of (x) the aggregate principal amount (or if issued with
original issue discount, the aggregate accreted value) then outstanding of the
Indebtedness being refinanced, plus (y) fees,
underwriting discounts, premiums and other costs and expenses incurred in
connection with such Refinancing Indebtedness and (3) Refinancing
Indebtedness shall not include (x) Indebtedness of a Restricted Subsidiary that
is not a Subsidiary Guarantor that refinances Indebtedness of the Company or a
Subsidiary Guarantor that could not have been initially Incurred by such
Restricted Subsidiary pursuant to Section 407 or (y) Indebtedness of the Company or a Restricted
Subsidiary that refinances Indebtedness of an Unrestricted Subsidiary.


 


“Regular Record Date” for the interest payable on any Interest
Payment Date means the date specified for that purpose in Section 301.


 


“Regulation S” means Regulation S under the Securities
Act.


 


“Regulation S Certificate” means a certificate
substantially in the form attached hereto as Exhibit D.


 


33
















 


“Related Business” means those businesses in which the Company
or any of its Subsidiaries is engaged on the date of this Indenture, or that
are similar, related, complementary, incidental or ancillary thereto or
extensions, developments or expansions thereof.


 


“Related Taxes” means (x) any
taxes, charges or assessments, including but not limited to sales, use,
transfer, rental, ad valorem, value-added, stamp, property, consumption,
franchise, license, capital, net worth, gross receipts, excise, occupancy, intangibles
or similar taxes, charges or assessments (other than federal, state or local
taxes measured by income and federal, state or local withholding imposed by any
government or other taxing authority on payments made by any Parent other than
to another Parent), required to be paid by any Parent by virtue of its being
incorporated or having Capital Stock outstanding (but not by virtue of owning
stock or other equity interests of any corporation or other entity other than
the Company, any of its Subsidiaries or any Parent), or being a holding company
parent of the Company, any of its Subsidiaries or any Parent or receiving
dividends from or other distributions in respect of the Capital Stock of the
Company, any of its Subsidiaries or any Parent, or having guaranteed any
obligations of the Company or any Subsidiary thereof, or having made any
payment in respect of any of the items for which the Company or any of its
Subsidiaries is permitted to make payments to any Parent pursuant to Section 409,
or acquiring, developing, maintaining, owning, prosecuting, protecting or
defending its intellectual property and associated rights (including but not
limited to receiving or paying royalties for the use thereof) relating to the
business or businesses of the Company or any Subsidiary thereof, (y) any taxes attributable to any taxable period (or
portion thereof) ending on or prior to the Closing Date, or to any Parent’s
receipt of (or entitlement to) any payment in connection with the Transactions,
including any payment received after the Closing Date pursuant to any agreement
related to the Transactions, or (z) any
other federal, state, foreign, provincial or local taxes measured by income for
which any Parent is liable up to an amount not to exceed, with respect to federal
taxes, the amount of any such taxes that the Company and its Subsidiaries would
have been required to pay on a separate company basis, or on a consolidated
basis as if the Company had filed a consolidated return on behalf of an
affiliated group (as defined in Section 1504 of the Code or an analogous
provision of state, local or foreign law) of which it were the common parent,
or with respect to state and local taxes, the amount of any such taxes that the
Company and its Subsidiaries would have been required to pay on a separate
company basis, or on a combined basis as if the Company had filed a combined
return on behalf of an affiliated group consisting only of the Company and its
Subsidiaries.


 


“Resale Restriction Termination Date” means, with respect to any
Note, the date that is one year (or such other period as may hereafter be
provided under Rule 144 under the Securities Act or any successor
provision thereto as permitting the resale by non-affiliates of Restricted
Securities without restriction) after the later of the original issue date in
respect of such Note and the last date on which the Company or any Affiliate of
the Company was the owner of such Note (or any Predecessor Note thereto).


 


“Responsible Officer” when used with respect to the Trustee
means the chairman or vice-chairman of the board of directors, the chairman or
vice-chairman of the executive 


 


34

















 


committee of the board of directors, the president,
any vice president or assistant vice president, the secretary, any assistant
secretary, the treasurer, any assistant treasurer, the cashier, any assistant
cashier, any trust officer or assistant trust officer, the controller and any
assistant controller or any other officer of the Trustee customarily performing
functions similar to those performed by any of the above designated officers
and also means, with respect to a particular corporate trust matter, any other
officer to whom such matter is referred because of his knowledge of and familiarity
with the particular subject.


 


“Restricted Payment Transaction” means any Restricted Payment
permitted pursuant to Section 409, any Permitted Payment, any
Permitted Investment, or any transaction specifically excluded from the
definition of the term “Restricted Payment” (including pursuant to the
exception contained in clause (i) and the
parenthetical exclusions contained in clauses (ii) and
(iii) of such definition).


 


“Restricted Security” has the meaning assigned to such term in Rule 144(a)(3) under
the Securities Act; provided, however, that the Trustee shall be
entitled to receive, at its request, and conclusively rely on an Opinion of
Counsel with respect to whether any Note constitutes a Restricted Security.


 


“Restricted Subsidiary” means any Subsidiary of the Company
other than an Unrestricted Subsidiary.


 


“Rule 144A” means Rule 144A under the Securities Act.


 


“SEC” means the Securities and Exchange Commission.


 


“Securities Act” means the Securities Act of 1933, as amended.


 


“Senior Credit Agreements” means, collectively, the Senior Term
Agreement and the Senior Revolving Credit Agreement.


 


“Senior Credit Facilities” means, collectively, the Senior Term
Facility and the Senior Revolving Credit Facility.


 


“Senior Indebtedness” means any Indebtedness of the Company or
any Restricted Subsidiary other than, in the case of the Company, Subordinated
Obligations, and, in the case of any Subsidiary Guarantor, Guarantor
Subordinated Obligations.


 


“Senior
Interim Loan Agreement” means the Senior Interim Loan Credit Agreement,
dated as of the Closing Date, among the Company, the lenders from time to time
parties thereto, JPMorgan Chase Bank, N.A., as administrative agent, and
Citigroup Global Markets Inc., as syndication agent.


 


“Senior Revolving Credit Agreement”
means the Credit Agreement, dated as of the Closing Date, among the
Company, certain Subsidiaries of the Company party thereto, the 


 


35

















 


lenders party thereto from
time to time, JPMorgan Chase Bank, N.A., as syndication agent, and Citibank,
N.A., as administrative agent and collateral agent, as such agreement may be
amended, supplemented, waived or otherwise modified from time to time or
refunded, refinanced, restructured, replaced, renewed, repaid, increased or
extended from time to time (whether in whole or in part, whether with the
original administrative agent and lenders or other agents and lenders or
otherwise, and whether provided under the original Senior Revolving Credit
Agreement or other credit agreements or otherwise, unless such agreement or
instrument expressly provides that it is not intended to be and is not a Senior
Revolving Credit Agreement hereunder).


 


“Senior Revolving Credit Facility”
means the collective reference to the Senior Revolving Credit Agreement, any
Loan Documents (as defined therein), any notes and letters of credit issued
pursuant thereto and any guarantee and collateral agreement, patent and
trademark security agreement, mortgages, letter of credit applications and other
guarantees, pledge agreements, security agreements and collateral documents,
and other instruments and documents, executed and delivered pursuant to or in
connection with any of the foregoing, in each case as the same may be amended,
supplemented, waived or otherwise modified from time to time, or refunded,
refinanced, restructured, replaced, renewed, repaid, increased or extended from
time to time (whether in whole or in part, whether with the original agent and
lenders or other agents and lenders or otherwise, and whether provided under
the original Senior Revolving Credit Agreement or one or more other credit
agreements, indentures (including this Indenture) or financing agreements or
otherwise, unless such agreement expressly provides that it is not intended to
be and is not a Senior Revolving Credit Facility hereunder). Without limiting
the generality of the foregoing, the term “Senior Revolving Credit Facility”
shall include any agreement (i) changing
the maturity of any Indebtedness Incurred thereunder or contemplated thereby, (ii) adding Subsidiaries of the Company as additional
borrowers or guarantors thereunder, (iii) increasing
the amount of Indebtedness Incurred thereunder or available to be borrowed
thereunder or (iv) otherwise altering the
terms and conditions thereof.


 


“Senior Term Agreement” means the Credit Agreement, dated as of
the Closing Date, among the Company, the lenders party thereto from time to
time, JPMorgan Chase
Bank, N.A., as syndication agent, and Citibank, N.A., as administrative
agent and collateral agent, as such agreement may be amended, supplemented,
waived or otherwise modified from time to time or refunded, refinanced,
restructured, replaced, renewed, repaid, increased or extended from time to
time (whether in whole or in part, whether with the original administrative
agent and lenders or other agents and lenders or otherwise, and whether
provided under the original Senior Term Agreement or other credit agreements or
otherwise, unless such agreement or instrument expressly provides that it is
not intended to be and is not a Senior Term Agreement hereunder).


 


“Senior Term Facility” means the collective reference to the
Senior Term Agreement, any Loan Documents (as defined therein), any notes and
letters of credit issued pursuant thereto and any guarantee and collateral
agreement, patent and trademark security agreement, mortgages, letter of credit
applications and other guarantees, pledge agreements, security agreements and
collateral documents, and other instruments and documents, executed and
delivered pursuant to or in connection with any of the foregoing, in each case
as the same 


 


36

















 


may be amended, supplemented, waived or otherwise
modified from time to time, or refunded, refinanced, restructured, replaced,
renewed, repaid, increased or extended from time to time (whether in whole or
in part, whether with the original agent and lenders or other agents and
lenders or otherwise, and whether provided under the original Senior Term
Agreement or one or more other credit agreements, indentures (including this
Indenture) or financing agreements or otherwise, unless such agreement or
instrument expressly provides that it is not intended to be and is not a Senior
Term Facility hereunder).  Without
limiting the generality of the foregoing, the term “Senior Term Facility” shall
include any agreement (i) changing
the maturity of any Indebtedness Incurred thereunder or contemplated thereby, (ii) adding Subsidiaries of the
Company as additional borrowers or guarantors thereunder, (iii) increasing the amount of
Indebtedness Incurred thereunder or available to be borrowed thereunder or (iv) otherwise altering the terms and conditions
thereof.


 


“ServiceMaster” means The ServiceMaster Company, a Delaware
corporation, and any successor in interest thereto.


 


“Significant Subsidiary” means any Restricted Subsidiary that
would be a “significant subsidiary” of the Company within the meaning of Rule 1-02
under Regulation S-X promulgated by the SEC, as such Regulation is in effect on
the Closing Date.


 


“Special Purpose Entity” means (x) any
Special Purpose Subsidiary or (y) any
other Person that is engaged in the business of acquiring, selling, collecting,
financing or refinancing Receivables, accounts (as defined in the Uniform
Commercial Code as in effect in any jurisdiction from time to time), other
accounts and/or other receivables, and/or related assets.


 


“Special Purpose Financing” means any financing or refinancing
of assets consisting of or including Receivables of the Company or any
Restricted Subsidiary that have been transferred to a Special Purpose Entity or
made subject to a Lien in a Financing Disposition.


 


“Special Purpose Financing Expense”
means for any period, (a) the aggregate interest
expense for such period on any Indebtedness of any Special Purpose Subsidiary
that is a Restricted Subsidiary, which Indebtedness is not recourse to the
Company or any Restricted Subsidiary that is not a Special Purpose Subsidiary
(other than with respect to Special Purpose Financing Undertakings), and (b) Special
Purpose Financing Fees.


 


“Special Purpose Financing Fees” means distributions or payments
made directly or by means of discounts with respect to any participation
interest issued or sold in connection with, and other fees paid to a Person
that is not a Restricted Subsidiary in connection with, any Special Purpose
Financing.


 


“Special Purpose Financing Undertakings” means representations,
warranties, covenants, indemnities, guarantees of performance and (subject to
clause (y) of the proviso below)
other agreements and undertakings entered into or provided by the Company or
any of its Restricted Subsidiaries that the Company determines in good faith
(which determination shall be 


 


37

















 


conclusive) are customary or otherwise necessary or
advisable in connection with a Special Purpose Financing or a Financing
Disposition; provided that (x) it is understood that
Special Purpose Financing Undertakings may consist of or include (i) reimbursement and other obligations in respect of
notes, letters of credit, surety bonds and similar instruments provided for
credit enhancement purposes or (ii) Hedging Obligations, or
other obligations relating to Interest Rate Agreements, Currency Agreements or
Commodities Agreements entered into by the Company or any Restricted
Subsidiary, in respect of any Special Purpose Financing or Financing
Disposition, and (y) subject to the preceding
clause (x) any such other agreements
and undertakings shall not include any Guarantee of Indebtedness of a Special
Purpose Subsidiary by the Company or a Restricted Subsidiary that is not a
Special Purpose Subsidiary.


 


“Special Purpose Subsidiary” means a Subsidiary of the Company
that (a) is engaged solely in (x) the business of acquiring, selling, collecting,
financing or refinancing Receivables, accounts (as defined in the Uniform
Commercial Code as in effect in any jurisdiction from time to time) and other
accounts and receivables (including any thereof constituting or evidenced by
chattel paper, instruments or general intangibles), all proceeds thereof and
all rights (contractual and other), collateral and other assets relating
thereto, and (y) any
business or activities incidental or related to such business, and (b) is
designated as a “Special Purpose Subsidiary” by the Company.


 


“Special Record Date” for the payment of any Defaulted Interest
means a date fixed by the Trustee pursuant to Section 307.


 


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


 


“Stated Maturity” means, with respect to any Indebtedness, the
date specified in such Indebtedness as the fixed date on which the payment of
principal of such Indebtedness is due and payable, including pursuant to any
mandatory redemption provision (but excluding any provision providing for the
repurchase or repayment of such Indebtedness at the option of the holder
thereof upon the happening of any contingency).


 


“Subordinated Obligations” means any Indebtedness of the Company
(whether outstanding on the date of this Indenture or thereafter Incurred) that
is expressly subordinated in right of payment to the Notes pursuant to a
written agreement.


 


“Subsidiary” of any Person means any corporation, association,
partnership or other business entity of which more than 50% of the total voting
power of shares of Capital Stock or other equity interests (including
partnership interests) entitled (without regard to the occurrence of any contingency)
to vote in the election of directors, managers or trustees thereof is at the
time owned or controlled, directly or indirectly, by (i) such
Person or (ii) one or more Subsidiaries of such Person.


 


38

















 


“Subsidiary Guarantee” means any guarantee that may from time to
time be entered into by a Restricted Subsidiary of the Company on the Issue
Date or after the Issue Date pursuant to Section 414.


 


“Subsidiary Guarantor” means any Restricted Subsidiary of the Company
that enters into a Subsidiary Guarantee.


 


“Successor Company” shall have the meaning assigned thereto in
clause (i) under Section 501.


 


“Supplemental Indenture” means a Supplemental Indenture, to be
entered into substantially in the form attached hereto as Exhibit E.


 


“Tax Sharing Agreement” means the Tax Sharing Agreement, dated
as of the Closing Date, among the Company, Holding, Investment Holding and
Holding Parent, as the same may be amended, supplemented, waived or otherwise
modified from time to time in accordance with the terms thereof and of this
Indenture.


 


“Temporary Cash Investments” means any of the following:  (i) any
investment in (x) direct obligations of the
United States of America, a member state of The European Union or any country in
whose currency funds are being held pending their application in the making of
an investment or capital expenditure by the Company or a Restricted Subsidiary
in that country or with such funds, or any agency or instrumentality of any
thereof or obligations Guaranteed by the United States of America or a member
state of The European Union or any country in whose currency funds are being
held pending their application in the making of an investment or capital
expenditure by the Company or a Restricted Subsidiary in that country or with
such funds, or any agency or instrumentality of any of the foregoing, or
obligations guaranteed by any of the foregoing or (y) direct
obligations of any foreign country recognized by the United States of America
rated at least “A” by S&P or “A-1” by Moody’s (or, in either case, the
equivalent of such rating by such organization or, if no rating of S&P or
Moody’s then exists, the equivalent of such rating by any nationally recognized
rating organization), (ii) overnight bank deposits,
and investments in time deposit accounts, certificates of deposit, bankers’
acceptances and money market deposits (or, with respect to foreign banks,
similar instruments) maturing not more than one year after the date of
acquisition thereof issued by (x) any
bank or other institutional lender under a Credit Facility or any affiliate
thereof or (y) a bank or trust company that is
organized under the laws of the United States of America, any state thereof or
any foreign country recognized by the United States of America having capital
and surplus aggregating in excess of $250.0 million (or the foreign
currency equivalent thereof) and whose long term debt is rated at least “A” by
S&P or “A-1” by Moody’s (or, in either case, the equivalent of such rating
by such organization or, if no rating of S&P or Moody’s then exists, the
equivalent of such rating by any nationally recognized rating organization) at
the time such Investment is made, (iii) repurchase obligations
for underlying securities or instruments of the types described in clause (i) or (ii) above
entered into with a bank meeting the qualifications described in clause (ii) above, (iv) Investments
in commercial paper, maturing not more than 24 months after the date of
acquisition, issued by a Person (other than that of the Company or any of its
Subsidiaries), with a 


 


39

















 


rating at the time as of which any Investment therein
is made of “P-2” (or higher) according to Moody’s or “A-2” (or higher) according
to S&P (or, in either case, the equivalent of such rating by such
organization or, if no rating of S&P or Moody’s then exists, the equivalent
of such rating by any nationally recognized rating organization), (v) Investments in securities maturing not more than 24
months after the date of acquisition issued or fully guaranteed by any state,
commonwealth or territory of the United States of America, or by any political
subdivision or taxing authority thereof, and rated at least “BBB-” by S&P
or “Baa3” by Moody’s (or, in either case, the equivalent of such rating by such
organization or, if no rating of S&P or Moody’s then exists, the equivalent
of such rating by any nationally recognized rating organization), (vi) Indebtedness or Preferred Stock (other than of the
Company or any of its Subsidiaries) having a rating of “A” or higher by S&P
or “A2” or higher by Moody’s (or, in either case, the equivalent of such rating
by such organization or, if no rating of S&P or Moody’s then exists, the
equivalent of such rating by any nationally recognized rating organization), (vii) investment
funds investing 95% of their assets in securities of the type described in
clauses (i)-(vi) above
(which funds may also hold reasonable amounts of cash pending investment and/or
distribution), (viii) any money market deposit
accounts issued or offered by a domestic commercial bank or a commercial bank
organized and located in a country recognized by the United States of America,
in each case, having capital and surplus in excess of $250.0 million (or
the foreign currency equivalent thereof), or investments in money market funds
subject to the risk limiting conditions of Rule 2a-7 (or any successor
rule) of the SEC under the Investment Company Act of 1940, as amended, and (ix) similar
investments approved by the Board of Directors in the ordinary course of
business.


 


“TIA” means the Trust Indenture Act of 1939 (15 U.S.C. §§
77aaa-7bbbb) as in effect on the date of this Indenture.


 


“Trade Payables” means, with respect to any Person, any accounts
payable or any indebtedness or monetary obligation to trade creditors created,
assumed or guaranteed by such Person arising in the ordinary course of business
in connection with the acquisition of goods or services.


 


“Transactions” means, collectively, any or all of the
following:  (i) the
Merger, (ii) the repayment at maturity or
redemption of the Existing 2007 Notes, the redemption of the Existing 2009
Notes and the repayment and termination of the Existing Credit Facilities, (iii) the entry into this Indenture, and the offer and
issuance of the Notes, (iv) the
entry into the Senior Credit Facilities and Incurrence of Indebtedness
thereunder by one or more of the Company and its Subsidiaries, and (v) all other transactions relating to any of the foregoing
(including payment of fees and expenses related to any of the foregoing). For
purposes of the foregoing, “Existing Credit Facilities” means the Credit
Agreement, dated as of May 19, 2004, as amended by Amendment No. 1,
dated as of May 6, 2005, each among ServiceMaster, the lenders, JPMorgan
Chase Bank and Bank of America, N.A. as syndication agents, SunTrust Bank, as
administrative agent, and U.S. Bank National Association and Wachovia Bank,
N.A. as documentation agents.


 


40

















 


“Trustee” means the party named as such in the first paragraph
of this Indenture until a successor replaces it and, thereafter, means the
successor.


 


“Unrestricted Cash” means cash, Cash
Equivalents and Temporary Cash Investments, other than (i) as
disclosed in the consolidated financial statements of the Company as a line
item on the balance sheet as “restricted cash” and (ii) cash,
Cash Equivalents and Temporary Cash Investments of a Captive Insurance Company
or Home Warranty Subsidiary to the extent such cash, Cash Equivalents and
Temporary Cash Investments are not permitted by applicable law or regulation to
be dividended, distributed or otherwise transferred to the Company or any
Restricted Subsidiary that is not either a Captive Insurance Company or a Home
Warranty Subsidiary.


 


“Unrestricted Subsidiary” means (i) any
Subsidiary of the Company that at the time of determination is an Unrestricted
Subsidiary, as designated by the Board of Directors in the manner provided
below, and (ii) any Subsidiary of an
Unrestricted Subsidiary.  The Board of
Directors may designate any Subsidiary of the Company (including any newly
acquired or newly formed Subsidiary of the Company) to be an Unrestricted
Subsidiary unless such Subsidiary or any of its Subsidiaries owns any Capital
Stock or Indebtedness of, or owns or holds any Lien on any property of, the
Company or any other Restricted Subsidiary of the Company that is not a
Subsidiary of the Subsidiary to be so designated; provided, that (A) such designation was made at or prior to the Closing
Date, or (B) the Subsidiary to be so
designated has total consolidated assets of $1,000 or less or (C) if such Subsidiary has consolidated assets greater
than $1,000, then such designation would be permitted under Section 409.  The Board of Directors may designate any
Unrestricted Subsidiary to be a Restricted Subsidiary; provided, that
immediately after giving effect to such designation (x) the
Company could Incur at least $1.00 of additional Indebtedness under Section 407(a) or
(y) the Consolidated Coverage Ratio
would be greater than it was immediately prior to giving effect to such
designation or (z) such Subsidiary shall be
a Special Purpose Subsidiary with no Indebtedness outstanding other than
Indebtedness that can be Incurred (and upon such designation shall be deemed to
be Incurred and outstanding) pursuant to Section 407(b).  Any such designation by the Board of
Directors shall be evidenced to the Trustee by promptly filing with the Trustee
a copy of the resolution of the Company’s Board of Directors giving effect to
such designation and an Officer’s Certificate of the Company certifying that
such designation complied with the foregoing provisions.


 


“U.S. Government Obligation” means (x) any
security that is (i) a direct obligation of the
United States of America for the payment of which the full faith and credit of
the United States of America is pledged or (ii) an
obligation of a Person controlled or supervised by and acting as an agency or
instrumentality of the United States of America the payment of which is
unconditionally guaranteed as a full faith and credit obligation by the United
States of America, which, in either case under the preceding clause (i) or (ii) is not
callable or redeemable at the option of the issuer thereof, and (y) any depositary receipt issued by a bank (as defined
in Section 3(a)(2) of the Securities Act) as custodian with respect
to any U.S. Government Obligation that is specified in clause (x) above and held by such bank for the account of the
holder of such depositary receipt, or with respect to any specific payment of
principal of or 


 


41

















 


interest on any U.S. Government Obligation that is so
specified and held, provided that (except as required by law) such
custodian is not authorized to make any deduction from the amount payable to
the holder of such depositary receipt from any amount received by the custodian
in respect of the U.S. Government Obligation or the specific payment of
principal or interest evidenced by such depositary receipt.


 


“Voting Stock” of an entity means all classes of Capital Stock
of such entity then outstanding and normally entitled to vote in the election
of directors or all interests in such entity with the ability to control the
management or actions of such entity.


 


“Wholly Owned Domestic Subsidiary”
means as to any Person, any Domestic Subsidiary of such Person that is a
Material Subsidiary of such Person, and of which such Person owns, directly or
indirectly through one or more Wholly Owned Domestic Subsidiaries, all of the
Capital Stock of such Domestic Subsidiary.


 


42

















 


Section 102.   Other
Definitions.


 


	
  Term

  	
   

  	
  Defined in

  Section

  
	
   

  	
   

  	
   

  
	
  “Act”

  	
   

  	
  108

  
	
  “Affiliate Transaction”

  	
   

  	
  412

  
	
  “Agent Members”

  	
   

  	
  312

  
	
  “AHYDO Redemption Date

  	
   

  	
  1008

  
	
  “Amendment”

  	
   

  	
  410

  
	
  “Applicable Premium”

  	
   

  	
  1001

  
	
  “Authentication Order”

  	
   

  	
  303

  
	
  “Bankruptcy Law”

  	
   

  	
  601

  
	
  “Cash Interest

  	
   

  	
  301

  
	
  “Cash Interest Rate

  	
   

  	
  301

  
	
  “Certificate of
  Beneficial Ownership”

  	
   

  	
  313

  
	
  “Change of Control
  Offer”

  	
   

  	
  415

  
	
  “Covenant Defeasance”

  	
   

  	
  1203

  
	
  “Custodian”

  	
   

  	
  601

  
	
  “Defaulted Interest”

  	
   

  	
  307

  
	
  “Defeasance”

  	
   

  	
  1202

  
	
  “Defeased Notes”

  	
   

  	
  1201

  
	
  “Distribution
  Compliance Period”

  	
   

  	
  201

  
	
  “Election Notice”

  	
   

  	
  301

  
	
  “Event of Default”

  	
   

  	
  601

  
	
  “Excess Proceeds”

  	
   

  	
  411

  
	
  “Expiration Date”

  	
   

  	
  108

  
	
  “Global Notes”

  	
   

  	
  201

  
	
  “Initial Agreement”

  	
   

  	
  410

  
	
  “Initial Lien”

  	
   

  	
  413

  
	
  “Mandatory Principal
  Redemption

  	
   

  	
  1008

  
	
  “Mandatory Principal
  Redemption Amount

  	
   

  	
  1008

  
	
  “Minimum Denomination”

  	
   

  	
  302

  
	
  “Note Register” and
  “Note Registrar”

  	
   

  	
  305

  
	
  “Notice of Default”

  	
   

  	
  601

  
	
  “Offer”

  	
   

  	
  411

  
	
  “Permanent Regulation S
  Global Notes”

  	
   

  	
  201

  
	
  “Permitted Payment”

  	
   

  	
  409

  
	
  “Physical Notes”

  	
   

  	
  201

  
	
  “PIK Interest”

  	
   

  	
  301

  
	
  “PIK Payment”

  	
   

  	
  301

  
	
  “Private Placement
  Legend”

  	
   

  	
  203

  



 


43

















 


	
  Term

  	
   

  	
  Defined in

  Section

  
	
   

  	
   

  	
   

  
	
  “Redemption Amount”

  	
   

  	
  1001

  
	
  “Redemption Price”

  	
   

  	
  1001

  
	
  “Refinancing Agreement”

  	
   

  	
  410

  
	
  “Refunding Capital
  Stock”

  	
   

  	
  409

  
	
  “Regular Record Date”

  	
   

  	
  301

  
	
  “Regulation S Global
  Notes”

  	
   

  	
  201

  
	
  “Regulation S Note
  Exchange Date”

  	
   

  	
  313

  
	
  “Regulation S Physical
  Notes”

  	
   

  	
  201

  
	
  “Reporting Date”

  	
   

  	
  405

  
	
  “Restricted Payment”

  	
   

  	
  409

  
	
  “Rule 144A Global
  Note”

  	
   

  	
  201

  
	
  “Rule 144A
  Physical Notes”

  	
   

  	
  201

  
	
  “Subsidiary Guaranteed
  Obligations”

  	
   

  	
  1301

  
	
  “Successor Company”

  	
   

  	
  501

  
	
  “Temporary Regulation S
  Global Note”

  	
   

  	
  201

  
	
  “Treasury Capital Stock

  	
   

  	
  409

  
	
  “Treasury Rate”

  	
   

  	
  1001

  



 


Section 103.           Rules of Construction.  For all purposes of this Indenture, except as
otherwise expressly provided or unless the context otherwise requires:


 


(1)   the
terms defined in this Indenture have the meanings assigned to them in this
Indenture;


 


(2)   “or”
is not exclusive;


 


(3)   all
accounting terms not otherwise defined herein have the meanings assigned to
them in accordance with GAAP;


 


(4)   the
words “herein,” “hereof” and “hereunder” and other words
of similar import refer to this Indenture as a whole and not to any particular
Article, Section or other subdivision;


 


(5)   all
references to “$” or “dollars” shall refer to the lawful currency
of the United States of America;


 


(6)   the
words “include,” “included” and “including,” as used
herein, shall be deemed in each case to be followed by the phrase “without
limitation,” if not expressly followed by such phrase or the phrase “but
not limited to”;


 


(7)   words
in the singular include the plural, and words in the plural include the
singular;


 


44
















 


(8)   references
to sections of, or rules under, the Securities Act shall be deemed to
include substitute, replacement or successor sections or rules adopted by
the SEC from time to time; and


 


(9)   any
reference to a Section, Article or clause refers to such Section, Article or
clause of this Indenture.


 


Section 104.           Incorporation by Reference of TIA.  Whenever this Indenture refers to a provision
of the TIA, the provision is incorporated by reference in and made a part of
this Indenture.  This Indenture is subject
to the mandatory provisions of the TIA, which are incorporated by reference in
and made a part of this Indenture.  Any
terms incorporated by reference in this Indenture that are defined by the TIA,
defined by any TIA reference to another statute or defined by SEC rule under
the TIA, have the meanings so assigned to them therein.  The following TIA terms have the following
meanings:


 


“indenture securities” means the Notes.


 


“indenture trustee” or “institutional trustee” means the
Trustee.


 


“obligor” on the
indenture securities means the Company, any Subsidiary Guarantor, and any
successor or other obligor on the indenture securities.


 


Section 105.           Conflict with TIA.  If any provision hereof limits, qualifies or
conflicts with a provision of the TIA that is required under the TIA to be a
part of and govern this Indenture, the latter provision shall control.  If any provision of this Indenture modifies
or excludes any provision of the TIA that may be so modified or excluded, the
latter provision shall be deemed (i) to
apply to this Indenture as so modified or (ii) to
be excluded, as the case may be.


 


Section 106.           Compliance Certificates and
Opinions.  Upon any application or
request by the Company or by any other obligor upon the Notes (including any
Subsidiary Guarantor) to the Trustee to take any action under any provision of
this Indenture, the Company or such other obligor (including any Subsidiary
Guarantor), as the case may be, shall furnish to the Trustee such certificates
and opinions as may be required under the TIA. 
Each such certificate or opinion shall be given in the form of one or
more Officer’s Certificates, if to be given by an Officer, or an Opinion of
Counsel, if to be given by counsel, and shall comply with the requirements of
the TIA and any other requirements set forth in this Indenture.  Notwithstanding the foregoing, in the case of
any such request or application as to which the furnishing of any Officer’s
Certificate or Opinion of Counsel is specifically required by any provision of
this Indenture relating to such particular request or application, no
additional certificate or opinion need be furnished.


 


Every certificate or opinion with respect to compliance with a
condition or covenant provided for in this Indenture (except for certificates
provided for in Section 406) shall include:


 


45

















 


(1)           a
statement that the individual signing such certificate or opinion has read such
covenant or condition and the definitions herein relating thereto;


 


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


 


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


 


(4)           a
statement as to whether, in the opinion of such individual, such condition or
covenant has been complied with.


 


Section 107.           Form of Documents Delivered
to Trustee.  In any case where
several matters are required to be certified by, or covered by an opinion of,
any specified Person, it is not necessary that all such matters be certified
by, or covered by the opinion of, only one such Person, or that they be so
certified or covered by only one document, but one such Person may certify or
give an opinion with respect to some matters and one or more other such Persons
as to other matters, and any such Person may certify or give an opinion as to
such matters in one or several documents.


 


Any certificate or opinion of an Officer may be based, insofar as it
relates to legal matters, upon a certificate or opinion of, or representations
by, counsel, unless such Officer knows that the certificate or opinion or
representations with respect to the matters upon which his certificate or
opinion is based are erroneous.  Any such
certificate or opinion of counsel may be based, insofar as it relates to
factual matters, upon a certificate or opinion of, or representations by, an
Officer or Officers to the effect that the information with respect to such
factual matters is in the possession of the Company, unless such counsel knows
that the certificate or opinion or representations with respect to such matters
are erroneous.


 


Where any Person is required to make, give or execute two or more
applications, requests, consents, certificates, statements, opinions or other
instruments under this Indenture, they may, but need not, be consolidated and
form one instrument.


 


Section 108.           Acts of Noteholders; Record Dates.


 


(a)           Any request, demand, authorization,
direction, notice, consent, waiver or other action provided by this Indenture
to be given or taken by Holders may be embodied in and evidenced by one or more
instruments of substantially similar tenor signed by such Holders in person or
by agent duly appointed in writing; and, except as herein otherwise expressly
provided, such action shall become effective when such instrument or
instruments are delivered to the Trustee, and, where it is hereby expressly
required, to the Company, as the case may be. 
Such instrument or instruments (and the action embodied therein and
evidenced thereby) are herein sometimes referred to as the “Act” of the
Holders signing such instrument or instruments. 
Proof 


 


46





















 


of execution of any such
instrument or of a writing appointing any such agent shall be sufficient for
any purpose of this Indenture and (subject to Section 701)
conclusive in favor of the Trustee, the Company and any other obligor upon the
Notes, if made in the manner provided in this Section 108.


 


(b)           The fact and date of the execution by
any Person of any such instrument or writing may be proved by the affidavit of
a witness of such execution or by the certificate of any notary public or other
officer authorized by law to take acknowledgments of deeds, certifying that the
individual signing such instrument or writing acknowledged to him the execution
thereof.  Where such execution is by an
officer of a corporation or a member of a partnership or other legal entity
other than an individual, on behalf of such corporation or partnership or
entity, such certificate or affidavit shall also constitute sufficient proof of
such Person’s authority.  The fact and
date of the execution of any such instrument or writing, or the authority of
the person executing the same, may also be proved in any other manner that the
Trustee deems sufficient.


 


(c)           The ownership of Notes shall be
proved by the Note Register.


 


(d)           Any request, demand, authorization,
direction, notice, consent, waiver or other action by the Holder of any Note
shall bind the Holder of every Note issued upon the transfer thereof or in
exchange therefor or in lieu thereof, in respect of anything done, suffered or
omitted to be done by the Trustee, the Company or any other obligor upon the
Notes in reliance thereon, whether or not notation of such action is made upon
such Note.


 


(e)           (i)  The
Company may set any day as a record date for the purpose of determining the
Holders of Outstanding Notes entitled to give, make or take any request,
demand, authorization, direction, notice, consent, waiver or other action provided
or permitted by this Indenture to be given, made or taken by Holders of Notes, provided that the Company may not set a record date for, and
the provisions of this paragraph shall not apply with respect to, the giving or
making of any notice, declaration, request or direction referred to in the next
paragraph.  If any record date is set
pursuant to this paragraph, the Holders of Outstanding Notes on such record
date (or their duly designated proxies), and no other Holders, shall be
entitled to take the relevant action, whether or not such Persons remain
Holders after such record date; provided that
no such action shall be effective hereunder unless taken on or prior to the
applicable Expiration Date by Holders of the requisite principal amount of Outstanding
Notes on such record date.  Nothing in
this paragraph shall be construed to prevent the Company from setting a new
record date for any action for which a record date has previously been set
pursuant to this paragraph (whereupon the record date previously set shall
automatically and with no action by any Person be cancelled and of no effect),
and nothing in this paragraph shall be construed to render ineffective any
action taken by Holders of the requisite principal amount of Outstanding Notes
on the date such action is taken. 
Promptly after any record date is set pursuant to this paragraph, the
Company, at its expense,  shall cause
notice of such record date, the proposed action by Holders and the applicable
Expiration Date to be given to the Trustee in writing and to each Holder of
Notes in the manner set forth in Section 110.


 


47





















 


(ii)           The Trustee may set
any day as a record date for the purpose of determining the Holders of
Outstanding Notes entitled to join in the giving or making of (A) any Notice of Default, (B) any declaration of acceleration
referred to in Section 602, (C) any
request to institute proceedings referred to in Section 607(ii) or
(D) any direction referred
to in Section 612, in each case with respect to Notes.  If any record date is set pursuant to this
paragraph, the Holders of Outstanding Notes on such record date, and no other
Holders, shall be entitled to join in such notice, declaration, request or
direction, whether or not such Holders remain Holders after such record date; provided that no such action shall be effective hereunder
unless taken on or prior to the applicable Expiration Date by Holders of the
requisite principal amount of Outstanding Notes on such record date.  Nothing in this paragraph shall be construed
to prevent the Trustee from setting a new record date for any action for which
a record date has previously been set pursuant to this paragraph (whereupon the
record date previously set shall automatically and with no action by any Person
be cancelled and of no effect), and nothing in this paragraph shall be
construed to render ineffective any action taken by Holders of the requisite
principal amount of Outstanding Notes on the date such action is taken.  Promptly after any record date is set
pursuant to this paragraph, the Trustee, at the Company’s expense, shall cause
notice of such record date, the proposed action by Holders and the applicable
Expiration Date to be given to the Company in writing and to each Holder of
Notes in the manner set forth in Section 110.


 


(iii)          With respect to any
record date set pursuant to this Section 108, the party hereto that
sets such record dates may designate any day as the “Expiration Date”
and from time to time may change the Expiration Date to any earlier or later
day; provided that
no such change shall be effective unless notice of the proposed new Expiration
Date is given to the Company or the Trustee, whichever such party is not
setting a record date pursuant to this Section 108(e) in
writing, and to each Holder of Notes in the manner set forth in Section 110,
on or prior to the existing Expiration Date. 
If an Expiration Date is not designated with respect to any record date
set pursuant to this Section 108, the party hereto that set such
record date shall be deemed to have initially designated the 180th day after
such record date as the Expiration Date with respect thereto, subject to its
right to change the Expiration Date as provided in this paragraph.  Notwithstanding the foregoing, no Expiration
Date shall be later than the 180th day after the applicable record date.


 


(iv)          Without limiting the
foregoing, a Holder entitled hereunder to take any action hereunder with regard
to any particular Note may do so with regard to all or any part of the
principal amount of such Note or by one or more duly appointed agents each of
which may do so pursuant to such appointment with regard to all or any part of
such principal amount.


 


(v)           Without limiting the
generality of the foregoing, a Holder, including the Depositary, that is the
Holder of a Global Note, may make, give or take, by a proxy or proxies duly
appointed in writing, any request, demand, authorization, direction, notice, 


 


48





















 


consent,
waiver or other action provided in this Indenture to be made, given or taken by
Holders, and the Depositary, as the Holder of a Global Note, may provide its
proxy or proxies to the beneficial owners of interests in any such Global Note
through such depositary’s standing instructions and customary practices.


 


(vi)          The Company may fix
a record date for the purpose of determining the persons who are beneficial
owners of interests in any Global Note held by the Depositary entitled under
the procedures of such depositary to make, give or take, by a proxy or proxies
duly appointed in writing, any request, demand, authorization, direction,
notice, consent, waiver or other action provided in this Indenture to be made,
given or taken by Holders.  If such a
record date is fixed, the Holders on such record date or their duly appointed
proxy or proxies, and only such persons, shall be entitled to make, give or
take such request, demand, authorization, direction, notice, consent, waiver or
other action, whether or not such Holders remain Holders after such record
date.  No such request, demand,
authorization, direction, notice, consent, waiver or other action shall be
valid or effective if made, given or taken more than 90 days after such record
date.


 


Section 109.           Notices, etc., to Trustee and
Company.  Any request, demand,
authorization, direction, notice, consent, waiver or Act of Holders or other
document provided or permitted by this Indenture to be made upon, given or
furnished to, or filed with,


 


(1)           the
Trustee by any Holder or by the Company or by any other obligor upon the Notes
shall be sufficient for every purpose hereunder if made, given, furnished or
filed in writing to or with the Trustee at Normandale Lake Center, 8400
Normandale Lake Blvd., Suite 925, Bloomington, MN 55437, Attn: Corporate
Client Services (phone: 302-636-6000; fax: 302-636-4143), or at any other
address furnished in writing to the Company by the Trustee, or


 


(2)           the
Company by the Trustee or by any Holder shall be sufficient for every purpose
hereunder if in writing and mailed, first-class postage prepaid, to the Company
at The ServiceMaster Company, 860 Ridge Lake Boulevard, Memphis, TN 38120,
Attention:  Treasurer (telephone: 
901-766-1400; telecopier: 
901-766-1107); with copies to Debevoise & Plimpton LLP,
919 Third Avenue, New York, New York 10022, Attention:  David A. Brittenham, Esq. and Peter J.
Loughran, Esq. (telephone: 
212-909-6000; telecopier: 
212-909-6836), or at any other address previously furnished in writing
to the Trustee by the Company.


 


(3)           The
Company or the Trustee, by notice to the other, may designate additional or
different addresses for subsequent notices or communications.


 


Section 110.           Notices to Holders; Waiver.  Where this Indenture provides for notice to
Holders of any event, such notice shall be sufficiently given (unless otherwise
herein expressly provided) if in writing and mailed, first-class postage
prepaid, or by overnight air courier guaranteeing next day delivery, to each
Holder affected by such event, at such Holder’s address as it appears in the
Note Register, not later than the latest date, and not earlier than the 


 


49

















 


earliest date, prescribed for the giving of
such notice.  In any case where notice to
Holders is given by mail, neither the failure to mail such notice, nor any
defect in any notice so mailed, to any particular Holder shall affect the
sufficiency of such notice with respect to other Holders.


 


Where this Indenture provides for notice in any manner, such notice may
be waived in writing by the Person entitled to receive such notice, either
before or after the event, and such waiver shall be the equivalent of such
notice.  Waivers of notice by Holders
shall be filed with the Trustee, but such filing shall not be a condition
precedent to the validity of any action taken in reliance upon such waiver.


 


In case, by reason of the suspension of regular mail service, or by
reason of any other cause, it shall be impossible to mail notice of any event
as required by any provision of this Indenture, then such notification as shall
be made with the approval of the Trustee (such approval not to be unreasonably
withheld) shall constitute a sufficient notification for every purpose
hereunder.


 


Section 111.           Effect of Headings and Table of
Contents.  The Article and Section headings
herein and the Table of Contents are for convenience only and shall not affect
the construction hereof.


 


Section 112.           Successors and Assigns.  All covenants and agreements in this
Indenture by the Company shall bind its respective successors and assigns,
whether so expressed or not.  All
agreements of the Trustee in this Indenture shall bind its successors.


 


Section 113.           Separability Clause.  In case any provision in this Indenture or in
the Notes shall be invalid, illegal or unenforceable, the validity, legality
and enforceability of the remaining provisions shall not in any way be affected
or impaired thereby.


 


Section 114.           Benefits of Indenture.  Nothing in this Indenture or in the Notes,
express or implied, shall give to any Person, other than the parties hereto and
their successors hereunder, any Paying Agent and the Holders, any benefit or
any legal or equitable right, remedy or claim under this Indenture.


 


Section 115.           GOVERNING LAW.  THIS INDENTURE AND THE NOTES SHALL BE
GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW
YORK.  THE TRUSTEE, THE COMPANY, ANY
OTHER OBLIGOR IN RESPECT OF THE NOTES AND (BY THEIR ACCEPTANCE OF THE NOTES)
THE HOLDERS AGREE TO SUBMIT TO THE JURISDICTION OF ANY UNITED STATES FEDERAL OR
STATE COURT LOCATED IN THE BOROUGH OF MANHATTAN, IN THE CITY OF NEW YORK IN ANY
ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO THIS INDENTURE OR THE NOTES.


 


Section 116.           Legal Holidays.  In any case where any Interest Payment Date,
Redemption Date or Stated Maturity of any Note shall not be a Business Day at
any Place of Payment, then (notwithstanding any other provision of this
Indenture or of the Notes) payment of 


 


50

















 


interest or principal and premium (if any)
need not be made at such Place of Payment on such date, but may be made on the
next succeeding Business Day at such Place of Payment with the same force and
effect as if made on the Interest Payment Date or Redemption Date, or at the
Stated Maturity, and no interest shall accrue on such payment for the
intervening period.


 


Section 117.           No Personal Liability of
Directors, Officers, Employees, Incorporators and Stockholders.  No director, officer, employee, incorporator
or stockholder of the Company, any Subsidiary Guarantor or any Subsidiary of
any thereof shall have any liability for any obligation of the Company or any
Subsidiary Guarantor under this Indenture, the Notes or any Subsidiary
Guarantee, or for any claim based on, in respect of, or by reason of, any such
obligation or its creation.  Each
Noteholder, by accepting the Notes, waives and releases all such liability.  The waiver and release are part of the
consideration for issuance of the Notes.


 


Section 118.           Exhibits and Schedules.  All exhibits and schedules attached hereto
are by this reference made a part hereof with the same effect as if herein set
forth in full.


 


Section 119.           Counterparts.  This Indenture may be executed in any number
of counterparts, each of which shall be an original; but such counterparts
shall together constitute but one and the same instrument.


 


ARTICLE II


 


NOTE FORMS


 


Section 201.           Forms Generally.  The Initial Notes and Initial Additional
Notes that are not Exchange Notes and the Trustee’s certificate of
authentication relating thereto shall be in substantially the forms set forth,
or referenced, in this Article II and Exhibit A  annexed hereto.  The Exchange Notes and any Additional Notes
that are not Initial Additional Notes, or that are issued in a registered
offering pursuant to the Securities Act, and the Trustee’s certificate of
authentication relating thereto shall be in substantially the forms set forth,
or referenced, in this Article II and Exhibit B annexed
hereto.  Each of Exhibit A
and B, is hereby incorporated in and expressly made a part of this
Indenture.  The Notes may have such
appropriate insertions, omissions, substitutions, notations, legends,
endorsements, identifications and other variations as are required or permitted
by law, stock exchange rule or depositary rule or usage, agreements
to which the Company is subject, if any, or other customary usage, or as may
consistently herewith be determined by the Officers of the Company executing
such Notes, as evidenced by such execution (provided always that any such notation, legend,
endorsement, identification or variation is in a form acceptable to the
Company).  Each Note shall be dated the
date of its authentication.  The terms of
the Notes set forth in Exhibits A and B are part of the terms of
this Indenture.  Any portion of the text
of any Note may be set forth on the reverse thereof, with an appropriate
reference thereto on the face of the Note.


 


Initial Notes and any Initial Additional Notes offered and sold in
reliance on Rule 144A shall, unless the Company otherwise notifies the
Trustee in writing, be issued in the form of one or more permanent global Notes
in substantially the form set forth in Exhibit A  


 


51

















 


hereto, except as otherwise permitted herein.  Such Global Notes shall be referred to
collectively herein as the “Rule 144A Global Note,” and shall be
deposited with the Trustee, as custodian for the Depositary or its nominee, for
credit to an account of an Agent Member, and shall be duly executed by the
Company and authenticated by the Trustee as hereinafter provided.  The aggregate principal amount of a Rule 144A
Global Note may from time to time be increased or decreased by adjustments made
on the records of the Trustee, as custodian for the Depositary or its nominee,
as hereinafter provided.


 


Initial Notes and any Initial Additional Notes offered and sold in
offshore transactions in reliance on Regulation S under the Securities Act
shall, unless the Company otherwise notifies the Trustee in writing, be issued
in the form of one or more temporary global Notes in substantially the form set
forth in Exhibit A hereto, except as otherwise permitted
herein.  Such Global Notes shall be referred
to herein as the “Temporary Regulation S Global Notes,” and shall be
deposited with the Trustee, as custodian for the Depositary or its nominee for
the accounts of designated Agent Members holding on behalf of Euroclear or
Clearstream and shall be duly executed by the Company and authenticated by the
Trustee as hereinafter provided.


 


Following the expiration of the distribution compliance period set
forth in Regulation S (the “Distribution Compliance Period”) with
respect to any Temporary Regulation S Global Note, beneficial interests in
such Temporary Regulation S Global Note shall be exchanged as provided in Sections 312
and 313 for beneficial interests in one or more permanent global Notes
in substantially the form set forth in Exhibit A, except as
otherwise permitted herein.  Such Global
Notes shall be referred to herein as the “Permanent Regulation S Global
Notes” and, together with the Temporary Regulation S Global Notes, as
the “Regulation S Global Notes.” 
The Permanent Regulation S Global Notes shall be deposited with the
Trustee, as custodian for the Depositary or its nominee for credit to the
account of an Agent Member and shall be duly executed by the Company and
authenticated by the Trustee as hereinafter provided.  Simultaneously with the authentication of a
Permanent Regulation S Global Note, the Trustee shall cancel the related
Temporary Regulation S Global Note. 
The aggregate principal amount of a Regulation S Global Note may
from time to time be increased or decreased by adjustments made in the records
of the Trustee, as custodian for the Depositary or its nominee, as hereinafter
provided.


 


Subject to the limitations on the issuance of certificated Notes set
forth in Sections 312 and 313, Initial Notes and any Initial
Additional Notes issued pursuant to Section 305 in exchange for or
upon transfer of beneficial interests (x) in a Rule 144A
Global Note shall be in the form of permanent certificated Notes substantially
in the form set forth in Exhibit A hereto (the “Rule 144A
Physical Notes”) or (y) in a
Regulation S Global Note (if any), on or after the Regulation S Note
Exchange Date with respect to such Regulation S Global Note, shall be in
the form of permanent certificated Notes substantially in the form set forth in
Exhibit A hereto (the “Regulation S Physical Notes”),
respectively, as hereinafter provided.


 


52

















 


The Rule 144A Physical Notes and Regulation S Physical Notes
shall be construed to include any certificated Notes issued in respect thereof
pursuant to Section 304, 305, 306 or 1009, and
the Rule 144A Global Notes and Regulation S Global Notes shall be
construed to include any global Notes issued in respect thereof pursuant to Section 304,
305, 306 or 1009. 
The Rule 144A Physical Notes and the Regulation S Physical
Notes, together with any other certificated Notes issued and authenticated
pursuant to this Indenture, are sometimes collectively herein referred to as
the “Physical Notes.”  The Rule 144A
Global Notes and the Regulation S Global Notes, together with any other
global Notes that are issued and authenticated pursuant to this Indenture, are
sometimes collectively referred to as the “Global Notes.”


 


Exchange Notes shall be issued substantially in the form set forth in Exhibit B
hereto and, subject to Section 312(b), shall be in the form of one
or more Global Notes.


 


Section 202.           Form of
Trustee’s Certificate of Authentication. 
The Notes will have endorsed thereon 
a Trustee’s certificate of authentication in substantially the following
form:


 


This is one of the Notes referred to in the
within-mentioned Indenture.


 


	
   

  	
  WILMINGTON TRUST FSB

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  as Trustee

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Authorized Officer

  
				



Dated:


 


53

















 


If an appointment of an Authenticating Agent is made
pursuant to Section 714, the Notes may have endorsed thereon, in
lieu of the Trustee’s certificate of authentication, an alternative certificate
of authentication in substantially the following form:


 


This is one of the Notes referred to in the
within-mentioned Indenture.


 


	
   

  	
  WILMINGTON TRUST FSB

  
	
   

  	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  as Trustee

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  As Authenticating Agent

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Authorized Officer

  
				



Dated:


 


Section 203.           Restrictive and Global Note
Legends.  Each Global Note and
Physical Note (and all Notes issued in exchange therefor or substitution
thereof) shall bear the following legend set forth below (the “Private
Placement Legend”) on the face thereof until the Private Placement Legend
is removed or not required in accordance with Section 313(4):


 


THIS NOTE HAS NOT BEEN
REGISTERED UNDER THE U.S. SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES
ACT”), OR UNDER THE SECURITIES LAWS OF ANY STATE OR OTHER JURISDICTION,
AND, ACCORDINGLY, MAY NOT BE OFFERED OR SOLD WITHIN THE UNITED STATES OR TO,
OR FOR THE ACCOUNT OR BENEFIT OF, U.S. PERSONS EXCEPT AS SET FORTH BELOW. EACH
PURCHASER OF THIS NOTE IS HEREBY NOTIFIED THAT THE SELLER OF THIS NOTE MAY BE
RELYING ON THE EXEMPTION FROM THE PROVISIONS OF SECTION 5 OF THE
SECURITIES ACT PROVIDED BY RULE 144A THEREUNDER OR ANOTHER EXEMPTION UNDER THE
SECURITIES ACT.


 


BY ITS ACCEPTANCE HEREOF,
THE HOLDER OF THIS NOTE (1) REPRESENTS THAT (A) IT
IS A “QUALIFIED INSTITUTIONAL BUYER” (AS DEFINED IN RULE 144A UNDER THE
SECURITIES ACT), (B) IT IS NOT A U.S. PERSON
AND IS ACQUIRING THIS NOTE IN AN OFFSHORE TRANSACTION IN COMPLIANCE WITH
REGULATION S UNDER THE SECURITIES ACT OR (C) IT IS
AN “INSTITUTIONAL” ACCREDITED INVESTOR (AS DEFINED IN RULE 501(a)(1), (2), (3),
OR (7) UNDER REGULATION D PROMULGATED UNDER THE SECURITIES ACT (AN “ACCREDITED
INVESTOR”) AND (2) AGREES THAT IT WILL NOT WITHIN [ONE YEAR—FOR NOTES ISSUED PURSUANT TO RULE 144A][40
DAYS—FOR NOTES ISSUED IN OFFSHORE
TRANSACTIONS PURSUANT


 


54
















 


TO
REGULATION S]
AFTER THE LATER OF THE DATE OF THE ORIGINAL ISSUANCE OF THIS NOTE AND THE DATE
ON WHICH THE COMPANY OR ANY OF ITS AFFILIATES OWNED SUCH NOTE, OFFER, RESELL OR
OTHERWISE TRANSFER THIS NOTE EXCEPT (A) (I) TO THE COMPANY OR ANY SUBSIDIARY THEREOF, (II) FOR SO LONG AS THIS NOTE IS ELIGIBLE FOR RESALE
PURSUANT TO RULE 144A UNDER THE SECURITIES ACT, INSIDE THE UNITED STATES TO A
PERSON WHOM THE SELLER REASONABLY BELIEVES IS A QUALIFIED INSTITUTIONAL BUYER
IN COMPLIANCE WITH RULE 144A UNDER THE SECURITIES ACT, (III) INSIDE
THE UNITED STATES TO AN ACCREDITED INVESTOR THAT IS ACQUIRING THE NOTES FOR ITS
OWN ACCOUNT OR FOR THE ACCOUNT OF SUCH AN ACCREDITED INVESTOR, IN EACH CASE IN
A MINIMUM PRINCIPAL AMOUNT OF THE NOTES OF $250,000, FOR INVESTMENT PURPOSES
AND NOT WITH A VIEW TO OR FOR THE OFFER OR SALE IN CONNECTION WITH ANY
DISTRIBUTION IN VIOLATION OF THE SECURITIES ACT, AND THAT PRIOR TO SUCH
TRANSFER, FURNISHES (OR HAS FURNISHED ON ITS BEHALF BY A U.S. BROKER-DEALER) TO
THE TRUSTEE A SIGNED LETTER CONTAINING CERTAIN REPRESENTATIONS AND AGREEMENTS
RELATING TO THE RESTRICTIONS ON TRANSFER OF THIS NOTE (THE FORM OF WHICH
LETTER CAN BE OBTAINED FROM THE TRUSTEE FOR THIS NOTE), (IV) OUTSIDE
THE UNITED STATES IN AN OFFSHORE TRANSACTION IN COMPLIANCE WITH RULE 904 UNDER
THE SECURITIES ACT (IF AVAILABLE), (V) PURSUANT
TO THE EXEMPTION FROM REGISTRATION PROVIDED BY RULE 144 UNDER THE SECURITIES
ACT (IF AVAILABLE), (VI) IN
ACCORDANCE WITH ANOTHER EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE
SECURITIES ACT (AND BASED UPON AN OPINION OF COUNSEL IF THE COMPANY SO
REQUESTS), OR (VII) PURSUANT TO AN
EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT AND (B) IN ACCORDANCE WITH ALL APPLICABLE SECURITIES LAWS OF
THE STATES OF THE UNITED STATES AND OTHER JURISDICTIONS. THE HOLDER OF THIS
NOTE FURTHER AGREES THAT IT WILL GIVE TO EACH PERSON TO WHOM THIS NOTE IS
TRANSFERRED A NOTICE SUBSTANTIALLY TO THE EFFECT OF THIS LEGEND. IN CONNECTION
WITH ANY TRANSFER OF THIS NOTE PURSUANT TO SUBCLAUSES (III) TO (VI) OF
CLAUSE (A) ABOVE, THE HOLDER MUST,
PRIOR TO SUCH TRANSFER, FURNISH TO THE TRUSTEE AND THE COMPANY SUCH
CERTIFICATIONS, LEGAL OPINIONS OR OTHER INFORMATION AS EITHER OF THEM MAY REASONABLY
REQUIRE TO CONFIRM THAT SUCH TRANSFER IS BEING MADE PURSUANT TO AN EXEMPTION
FROM, OR IN A TRANSACTION NOT SUBJECT TO, THE REGISTRATION REQUIREMENTS OF THE
SECURITIES ACT. AS USED HEREIN, THE 


 


55

















 


TERMS “OFFSHORE
TRANSACTION,” “UNITED STATES” AND “U.S. PERSON” HAVE THE MEANINGS GIVEN TO THEM
BY REGULATION S UNDER THE SECURITIES ACT.


 


Each Global Note, whether or not an Initial Note, shall also bear the
following legend on the face thereof:


 


UNLESS THIS CERTIFICATE
IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY, A
NEW YORK CORPORATION (“DTC”) TO THE COMPANY OR ITS AGENT FOR
REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS
REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS
REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO
CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.


 


TRANSFERS OF THIS GLOBAL
NOTE SHALL BE LIMITED TO TRANSFERS IN WHOLE, BUT NOT IN PART, TO NOMINEES OF
CEDE & CO. OR TO A SUCCESSOR THEREOF OR SUCH SUCCESSOR’S NOMINEE AND
TRANSFERS OF PORTIONS OF THIS GLOBAL NOTE SHALL BE LIMITED TO TRANSFERS MADE IN
ACCORDANCE WITH THE RESTRICTIONS SET FORTH IN SECTIONS 312 AND 313 OF THE
INDENTURE (AS DEFINED HEREIN).


 


Each Temporary Regulation S Global Note shall also bear the
following legend on the face thereof:


 


BY ITS ACQUISITION
HEREOF, THE HOLDER HEREOF REPRESENTS THAT IT IS NOT A U.S. PERSON, NOR IS IT
PURCHASING FOR THE ACCOUNT OF A U.S. PERSON, AND IS ACQUIRING THIS SECURITY IN
AN OFFSHORE TRANSACTION IN ACCORDANCE WITH REGULATION S UNDER THE SECURITIES
ACT.


 


EXCEPT AS SPECIFIED IN
THE INDENTURE, BENEFICIAL OWNERSHIP INTERESTS IN THIS TEMPORARY
REGULATION S GLOBAL NOTE WILL NOT BE EXCHANGEABLE FOR INTERESTS IN THE
PERMANENT REGULATION S GLOBAL NOTE OR ANY OTHER NOTE REPRESENTING AN
INTEREST IN THE NOTES REPRESENTED HEREBY WHICH DO NOT CONTAIN A LEGEND
CONTAINING RESTRICTIONS ON TRANSFER, UNTIL THE EXPIRATION OF THE “40 DAY
DISTRIBUTION COMPLIANCE PERIOD” (WITHIN THE MEANING OF RULE 903(b)(2) OF 


 


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REGULATION S UNDER
THE SECURITIES ACT).  DURING SUCH 40 DAY
DISTRIBUTION COMPLIANCE PERIOD, BENEFICIAL OWNERSHIP INTERESTS IN THIS
TEMPORARY REGULATION S GLOBAL NOTE MAY NOT BE SOLD, PLEDGED OR
TRANSFERRED TO A U.S. PERSON OR FOR THE ACCOUNT OR BENEFIT OF A U.S. PERSON.


 


ARTICLE III


 


THE NOTES


 


Section 301.           Title and Terms.  The aggregate principal amount of Notes that
may be authenticated and delivered and Outstanding under this Indenture is not
limited.  The Initial Notes will be
issued in an aggregate principal amount of up to $1,150,000,000.  Additional Notes (including any Exchange
Notes issued in exchange therefor) will vote (or consent) as a class with the
other Notes and otherwise be treated as Notes for all purposes of this
Indenture.


 


The Notes shall be known and designated as
the “10.75%/11.50% Senior Toggle
Notes due 2015” of the Company.  The
final Stated Maturity of the Notes shall be July 15, 2015.


 


Interest on the Outstanding principal amount of Notes will be payable
semi-annually in arrears on January 15 and July 15 in each year,
commencing on January 15, 2009, to holders of record on the immediately
preceding January 1 and July 1, respectively (each such January 1
and July 1, a “Regular Record Date”).  Interest on the Original Notes will accrue
from the most recent date to which interest has been paid or duly provided for
or, if no interest has been paid, from July 24, 2008, and interest on any
Additional Notes (and Exchange Notes issued in exchange therefor) will accrue
(or will be deemed to have accrued) from the most recent date to which interest
has been paid or duly provided for or, if no interest has been paid on such
Additional Notes, from the Interest Payment Date immediately preceding the date
of issuance of such Additional Notes, or if the date of issuance of such
Additional Notes is an Interest Payment Date, from such date of issuance; provided that if any Note is surrendered
for exchange on or after a record date for an Interest Payment Date that will
occur on or after the date of such exchange, interest on the Note received in
exchange thereof will accrue from the date of such Interest Payment Date.


 


For any semi-annual interest period through the Interest Payment Date
immediately prior to July 24, 2011, the Company may, at its option, elect
to pay interest on the Notes (1) entirely
in cash (“Cash Interest”), (2) entirely
by increasing the principal amount of the Outstanding Notes (“PIK Interest”)
or (3) 50% as Cash Interest and 50% as
PIK Interest.  Cash Interest shall accrue
on the Notes for each day during such interest period at a rate per annum equal
to 10.75% (the “Cash Interest Rate”). 
PIK Interest shall accrue on the Notes for each day during such interest
period at a rate per annum equal to 11.50%, which is the Cash Interest Rate plus
75 basis points.  Interest payable after July 15,
2011 shall be payable in the form of Cash Interest.


 


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To elect the form of interest payment on the Notes with respect to any
semi-annual interest period through the Interest Payment Date immediately prior
to July 24, 2011, the Company shall give the Trustee written notice of
such election (an “Election Notice”) not less than five Business Days
prior to the commencement of the related interest period, or, in the case of
the first semi-annual interest period following the Issue Date, not less than
three Business Days prior to the Issue Date. 
Each Election Notice shall include information to the following effect:  (1) the
relevant Interest Payment Date; (2) whether
interest shall be paid on such Interest Payment Date entirely as Cash Interest,
entirely as PIK Interest or 50% as Cash Interest and 50% as PIK Interest; and (3) in the case of any PIK Payment (as defined below),
the increase in the principal amount of the Notes to be effective upon the
relevant Interest Payment Date as a result of such PIK Payment and the
principal amount of the Notes outstanding as of such Interest Payment Date
giving effect to such PIK Payment, as determined in accordance with this
Indenture.  The Trustee shall promptly
deliver a corresponding notice to the Holders of the Notes.  In the absence of such an election for any
semi-annual interest period with respect to the Notes, interest on the Notes
shall be payable entirely in the form specified in the most recent Election
Notice given by the Company to the Trustee.


 


PIK Interest shall be payable on the related Interest Payment Date by
increasing the principal amount of the Outstanding Notes by an amount equal to
the amount of PIK Interest for the applicable semi-annual interest period (a “PIK
Payment”), as hereinafter provided. 
If the Company elects to pay 50% as Cash Interest and 50% as PIK
Interest, such Cash Interest and PIK Interest shall be paid to Holders of Notes
pro rata in accordance with their
interests.  Following an increase in the
principal amount of the Outstanding Notes as a result of a PIK Payment, the
Notes shall accrue interest on such increased principal amount from and after
the related Interest Payment Date of such PIK Payment.  On the Interest Payment Date for such PIK
Payment, the principal amount of each Note shall be increased by the amount of
the PIK Interest payable, rounded up to the nearest $1.00, for the relevant semi-annual
interest period on the principal amount of such Note as of the relevant Regular
Record Date for such Interest Payment Date, to the credit of the Holders of
such Notes on such Regular Record Date, pro
rata in accordance with their interests, automatically without any
further action by any Person.  In the
case of the Global Notes, such increase in principal amount shall be recorded
in the Note Registrar’s books and records and in the schedule to the Global
Notes in accordance with this Indenture. 
Alternatively, the Company may elect, at its option, to issue a new Note
or new Notes having a principal amount equal to the amount of the PIK Payment,
in accordance with Section 303 of this Indenture.


 


Payment of the principal of (and premium, if
any) and interest (including Cash Interest) on the Notes will be made at the
Corporate Trust Office of the Trustee, or such other office or agency of the
Company maintained for that purpose; provided, however, that at the option of the Company payment of Cash
Interest may be made by wire transfer of immediately available funds to the
account designated to the Company by the Person entitled thereto or by check
mailed to the address of the Person entitled thereto as such address shall
appear in the Note Register.


 


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References in this Indenture and the Notes to the “principal amount” of
the Notes shall include increases in the principal amount of the Outstanding
Notes as a result of any PIK Payment.


 


Section 302.           Denominations.  The Notes shall be issuable only in fully
registered form, without coupons, and only in minimum denominations of the
greater of $2,000 or, if greater at the Issue Date, the dollar equivalent of
€1,000 rounded up to the nearest $1,000 (the “Minimum Denomination”),
and integral multiples of $1.00 in excess thereof, subject to the provisions
of Section 301 of this Indenture in respect of increases in
principal amount of Notes resulting from any PIK Payment.


 


Section 303.           Execution, Authentication and
Delivery and Dating.  The Notes shall
be executed on behalf of the Company by one Officer thereof.  The signature of any such Officer on the
Notes may be manual or by facsimile.


 


Notes bearing the manual or facsimile signature of an individual who
was at any time an Officer of the Company shall bind the Company,
notwithstanding that such individual has ceased to hold such office prior to
the authentication and delivery of such Notes or did not hold such office at
the date of such Notes.


 


At any time and from time to time after the execution and delivery of
this Indenture, the Company may deliver Notes executed by the Company to the
Trustee for authentication; and the Trustee shall authenticate and deliver (i) Initial Notes for original issue in the aggregate
principal amounts specified by the Company in accordance with the Senior
Interim Loan Agreement, (ii) Additional
Notes in one or more series from time to time for original issue in aggregate
principal amounts specified by the Company and (iii) Exchange
Notes from time to time for issue in exchange for a like principal amount of
Initial Notes or Initial Additional Notes, in each case specified
in clauses (i) through (iii) above, upon a written order of the Company in the
form of an Officer’s Certificate of the Company (an “Authentication Order”).  Such Officer’s Certificate shall specify the
amount of Notes to be authenticated and the date on which the Notes are to be
authenticated, the “CUSIP”, “ISIN”, “Common Code” or other similar
identification numbers of such Notes, if any, whether the Notes are to be
Initial Notes, Additional Notes or Exchange Notes and whether the Notes are to
be issued as one or more Global Notes or Physical Notes and such other
information as the Company may include or the Trustee may reasonably request.


 


All Notes shall be dated the date of their authentication.


 


No Note shall be entitled to any benefit under this Indenture or be
valid or obligatory for any purpose, unless there appears on such Note a
certificate of authentication substantially in the form provided for herein
executed by the Trustee by manual signature, and such certificate upon any Note
shall be conclusive evidence, and the only evidence, that such Note has been
duly authenticated and delivered hereunder.


 


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The Company may issue Notes hereunder in payment of PIK Interest on the
Notes, which Notes shall have identical terms as the Notes issued on the Issue
Date.  Notwithstanding any provision to
the contrary herein, in connection with the payment of PIK Interest on the
Notes, the Company shall not be required to issue, and the Trustee shall not be
required to authenticate, Physical Notes if the Company has directed the Paying
Agent to record the payment of such PIK Interest as of the relevant Interest
Payment Date in the Note Registrar’s books and records and in the schedule of
principal amount of each relevant Global Note outstanding or has arranged for
the deposit of a Global Note or Global Notes in the applicable principal amount
on or prior to the relevant Interest Payment Date into the account specified by
the Holder or Holders thereof.  If the
Company does not elect with respect to Notes that are Physical Notes to pay
interest thereon in cash, (i) the
Company shall deliver to the Trustee, no later than two Business Days prior to
the relevant Interest Payment Date, the required amount of Notes, together with
an order to authenticate and deliver such Notes in accordance with this Section 303,
and (ii) such Notes, if executed and
authenticated pursuant to this Section 303, shall be mailed to the
person entitled thereto as shown in the Note Register as of the relevant
Regular Record Date.


 


Section 304.           Temporary Notes.  Until definitive Notes are ready for
delivery, the Company may prepare and upon receipt of an Authentication Order
the Trustee shall authenticate temporary Notes. 
Temporary Notes shall be substantially in the form of definitive Notes
but may have variations that the Company considers appropriate for temporary
Notes.  If temporary Notes are issued,
the Company will cause definitive Notes to be prepared without unreasonable
delay.  After the preparation of
definitive Notes, the temporary Notes shall be exchangeable for definitive
Notes upon surrender of the temporary Notes at the office or agency of the
Company in a Place of Payment, without charge to the Holder.  Upon surrender for cancellation of any one or
more temporary Notes the Company shall execute and upon receipt of an
Authentication Order the Trustee shall authenticate and deliver in exchange
therefor a like principal amount of definitive Notes of authorized
denominations.  Until so exchanged the
temporary Notes shall in all respects be entitled to the same benefits under
this Indenture as definitive Notes of the same series and tenor.


 


Section 305.           Registrar and Paying Agent.  The Company shall cause to be kept at the
Corporate Trust Office of the Trustee a register (the register maintained in
such office and in any other office or agency of the Company in a Place of
Payment being herein sometimes collectively referred to as the “Note
Register”) in which, subject to such reasonable regulations as it may
prescribe, the Company shall provide for the registration of Notes and of
transfers of Notes.  The Company may have
one or more co-registrars.  The term “Note
Registrar” includes any co-registrars.


 


The Company may have one or more additional paying agents, and the term
“Paying Agent” shall include any additional Paying Agent.


 


The Company initially appoints the Trustee as “Note Registrar” and “Paying
Agent” in connection with the Notes, until such time as it has resigned or a
successor has been 


 


60

















 


appointed.  The
Company may change the Paying Agent or Note Registrar for any series of Notes
without prior notice to the Holders of Notes. 
The Company may enter into an appropriate agency agreement with any Note
Registrar or Paying Agent not a party to this Indenture.  Any such agency agreement shall implement the
provisions of this Indenture that relate to such agent.  The Company shall notify the Trustee in
writing of the name and address of any such agent.  If the Company fails to appoint or maintain a
Note Registrar or Paying Agent, the Trustee shall act as such and shall be
entitled to appropriate compensation therefor pursuant to Section 707.  The Company or any wholly-owned Domestic
Subsidiary of the Company may act as Paying Agent, Note Registrar or transfer
agent.


 


Upon surrender for transfer of any Note at the office or agency of the
Company in a Place of Payment, in compliance with all applicable requirements
of this Indenture and applicable law, the Company shall execute, and the
Trustee shall authenticate and deliver, in the name of the designated
transferee or transferees, one or more new Notes of the same series, of any
authorized denominations and of a like aggregate principal amount.


 


At the option of the Holder, Notes may be exchanged for other Notes of
the same series, of any authorized denominations and of a like tenor and
aggregate principal amount, upon surrender of the Notes to be exchanged at such
office or agency.  Whenever any Notes are
so surrendered for exchange, the Company shall execute, and the Trustee shall
authenticate and deliver, the Notes that the Holder making the exchange is
entitled to receive.


 


All Notes issued upon any transfer or exchange of Notes shall be the
valid obligations of the Company, evidencing the same debt, and entitled to the
same benefits under this Indenture, as the Notes surrendered upon such transfer
or exchange.


 


Every Note presented or surrendered for transfer or exchange shall (if
so required by the Company or the Trustee) be duly endorsed, or be accompanied
by a written instrument of transfer in form satisfactory to the Company and the
Note Registrar duly executed, by the Holder thereof or such Holder’s attorney
duly authorized in writing.


 


No service charge shall be made for any registration, transfer or
exchange of Notes, but the Company may require payment of a sum sufficient to
cover any transfer tax or other governmental charge that may be imposed in
connection therewith.


 


The Company shall not be required (i) to
issue, transfer or exchange any Note during a period beginning at the opening
of business 15 Business Days before the day of the mailing of a notice of
redemption (or purchase) of Notes selected for redemption (or purchase) under Section 1004
and ending at the close of business on the day of such mailing, or (ii) to transfer or exchange any Note so selected for
redemption (or purchase) in whole or in part.


 


The Note Registrar shall record in the Note
Register the increase in principal amount of each Note as a result of any PIK
Payment and the related Interest Payment Date of such PIK Payment.  No consent of the Holders shall be required
for any such increase in principal amount of any Note or for the recording
thereof in the Note Register.  Unless the



 


61

















 


Company elects otherwise,
pursuant to Section 301 hereof, the Company shall not execute, and
the Trustee shall not be required to authenticate and deliver, any Note to
reflect any such increase in the principal amount of any Note as a result of
any PIK Payment (other than with respect to Physical Notes (if any) in
accordance with the following paragraph), nor shall the Company, the Trustee or
the Note Registrar be required to make any notation on any Note to reflect any
such increase in principal amount (other than any notation on any Global Note
that may be made by the Note Registrar in accordance with Section 312(h) hereof).


 


If the Global Notes have been exchanged for
Physical Notes in accordance with Section 312(b) of this
Indenture, at any time after any PIK Payment in accordance with Section 301,
upon surrender for transfer or exchange of any Physical Note as provided in
this Section 305, the Company shall execute, and the Trustee shall
authenticate and deliver, in the name of the designated transferee or
transferees or the Holder of such Physical Note, as the case may be, one or more
new Physical Notes in aggregate principal amount equal to the then current
principal amount of the Physical Note being transferred or exchanged which
principal amount shall reflect all increases in the principal amount thereof as
a result of PIK Payments as recorded in the Note Register.


 


Section 306.           Mutilated, Destroyed, Lost and
Stolen Notes.  If a mutilated Note is
surrendered to the Note Registrar or if the Holder of a Note claims that the
Note has been lost, destroyed or wrongfully taken, the Company shall issue and
the Trustee shall authenticate a replacement Note if the requirements of Section 8-405
of the Uniform Commercial Code are met, such that the Holder (a) satisfies the Company or the
Trustee within a reasonable time after such Holder has notice of such loss,
destruction or wrongful taking and the Note Registrar does not register a
transfer prior to receiving such notification, (b) makes such request to the Company or the Trustee
prior to the Note being acquired by a protected purchaser as defined in Section 8-303
of the Uniform Commercial Code (a “protected purchaser”) and (c) satisfies any other reasonable
requirements of the Trustee.  If required
by the Trustee or the Company, such Holder shall furnish an indemnity bond
sufficient in the judgment of the Trustee to protect the Company, the Trustee,
a Paying Agent and the Note Registrar from any loss that any of them may suffer
if a Note is replaced.


 


In case any such mutilated, destroyed, lost or stolen Note has become
or is about to become due and payable, the Company in its discretion may,
instead of issuing a new Note, pay such Note.


 


Upon the issuance of any new Note under this Section 306,
the Company may require the payment of a sum sufficient to cover any tax or
other governmental charge that may be imposed in relation thereto and any other
expenses (including the fees and expenses of the Trustee) connected therewith.


 


Every new Note issued pursuant to this Section 306 in lieu
of any destroyed, lost or stolen Note shall constitute an original additional
contractual obligation of the Company, whether or not the destroyed, lost or
stolen Note shall be at any time enforceable by anyone, and 


 


62

















 


shall be entitled to all the benefits of this Indenture
equally and ratably with any and all other Notes duly issued hereunder.


 


The provisions of this Section 306 are exclusive and shall
preclude (to the extent lawful) all other rights and remedies with respect to
the replacement or payment of mutilated, destroyed, lost or stolen Notes.


 


Section 307.           Payment of Interest Rights
Preserved.  Interest on any Note that
is payable, and is punctually paid or duly provided for, on any Interest
Payment Date shall be paid to the Person in whose name that Note (or one or
more Predecessor Notes) is registered at the close of business on the Regular
Record Date for such interest specified in Section 301.  For the avoidance of doubt
and notwithstanding any other provision of this Indenture or the Notes,
interest that is paid in the form of PIK Interest shall be considered paid or
duly provided for, for all purposes of this Indenture and the Notes, and shall
not be considered overdue.


 


Any interest (including Cash Interest) on any Note that is payable, but
is not punctually paid or duly provided for, on any Interest Payment Date (“Defaulted
Interest”) shall forthwith cease to be payable to the registered Holder on
the relevant Regular Record Date by virtue of having been such Holder; and such
Defaulted Interest may be paid by the Company, at its election, as provided in
clause (1) or clause (2) below:


 


(1)           The Company may
elect to make payment of any Defaulted Interest to the Persons in whose names
the Notes (or their respective Predecessor Notes) are registered at the close
of business on a Special Record Date for the payment of such Defaulted
Interest, which shall be fixed in the following manner.  The Company shall notify the Trustee and
Paying Agent in writing of the amount of Defaulted Interest proposed to be paid
on each Note and the date of the proposed payment, and at the same time the
Company shall deposit with the Trustee or Paying Agent an amount of money equal
to the aggregate amount proposed to be paid in respect of such Defaulted
Interest or shall make arrangements reasonably satisfactory to the Trustee or
Paying Agent for such deposit prior to the date of the proposed payment, such
money when deposited to be held in trust for the benefit of the Persons
entitled to such Defaulted Interest as provided in this clause (1).  Thereupon the
Trustee shall fix a Special Record Date for the payment of such Defaulted
Interest which shall be not more than 15 nor less than 10 days prior to the
date of the proposed payment and not less than 10 days after the receipt by the
Trustee and the Paying Agent of the notice of the proposed payment.  The Trustee shall promptly notify the Company
of such Special Record Date and, in the name and at the expense of the Company,
shall cause notice of the proposed payment of such Defaulted Interest and the
Special Record Date therefor to be mailed, first class postage prepaid, to each
Holder at such Holder’s address as it appears in the Note Register, not less
than 10 days prior to such Special Record Date. 
Notice of the proposed payment of such Defaulted Interest and the
Special Record Date therefor having been so mailed, such Defaulted Interest
shall be paid to the Persons in whose names the Notes (or their respective
Predecessor Notes) 


 


63





















 


are
registered on such Special Record Date and shall no longer be payable pursuant
to the following clause (2).


 


(2)           The Company may make
payment of any Defaulted Interest in any other lawful manner not inconsistent
with the requirements of any securities exchange on which the Notes may be
listed, and upon such notice as may be required by such exchange, if, after
notice given by the Company to the Trustee and the Paying Agent of the proposed
payment pursuant to this clause (2), such
payment shall be deemed practicable by the Trustee.


 


Subject to the foregoing provisions of this Section 307,
each Note delivered under this Indenture upon transfer of or in exchange for or
in lieu of any other Note of the same series shall carry the rights to interest
accrued and unpaid, and to accrue, that were carried by such other Note of such
series.


 


Section 308.           Persons Deemed Owners.  The Company, any Subsidiary Guarantor, the
Trustee, the Paying Agent and any agent of any of them may treat the Person in
whose name any Note is registered as the owner of such Note for the purpose of
receiving payment of principal of (and premium, if any), and (subject to Section 307)
interest on, such Note and for all other purposes whatsoever, whether or not
such Note be overdue, and none of the Company, any Subsidiary Guarantor, the
Trustee, the Paying Agent  nor any agent
of any of them shall be affected by notice to the contrary.


 


Section 309.           Cancellation.  All Notes surrendered for payment,
redemption, transfer, exchange or conversion shall, if surrendered to any
Person other than the Trustee, be delivered to the Trustee and, if not already
cancelled, shall be promptly cancelled by it. 
The Company may at any time deliver to the Trustee for cancellation any
Notes previously authenticated and delivered hereunder that the Company may
have acquired in any manner whatsoever, and all Notes so delivered shall be
promptly cancelled by the Trustee.  No
Notes shall be authenticated in lieu of or in exchange for any Notes cancelled
as provided in this Section 309, except as expressly permitted by
this Indenture.  All cancelled Notes held
by the Trustee shall be disposed of by the Trustee in accordance with its
customary procedures (subject to the record retention requirements of the
Exchange Act).


 


Section 310.           Computation of Interest.  Interest on the Notes shall be computed on
the basis of a 360-day year consisting of twelve 30-day months.


 


Section 311.           CUSIP Numbers, ISINs, etc.  The Company in issuing the Notes may use “CUSIP”
numbers, ISINs and “Common Code” numbers (if then generally in use), and if so,
the Trustee may use the CUSIP numbers, ISINs and “Common Code” numbers in
notices of redemption or exchange as a convenience to Holders; provided, however, that any such
notice may state that no representation is made as to the correctness or
accuracy of such numbers printed in the notice or on the Notes; that reliance
may be placed only on the other identification numbers printed on the Notes;
and that any redemption shall not be affected by any defect in or omission of
such numbers.


 


64
















 


Section 312.           Book-Entry
Provisions for Global Notes.


 


(a)           Each Global Note initially shall (i) be registered in the name of the Depositary for such
Global Note or the nominee of such Depositary, in each case for credit to the
account of an Agent Member, and (ii) be
delivered to the Trustee as custodian for such Depositary.  Neither the Company nor any agent thereof
shall have any responsibility or liability for any aspect of the records
relating to or payments made on account of beneficial ownership interests of a
Global Note, or for maintaining, supervising or reviewing any records relating
to such beneficial ownership interests.


 


Members of, or participants in, the Depositary (“Agent Members”)
shall have no rights under this Indenture with respect to any Global Note held
on their behalf by the Depositary, or its custodian, or under such Global
Notes.  The Depositary may be treated by
the Company, any other obligor upon the Notes, the Trustee and any agent of any
of them as the absolute owner of the Global Notes for all purposes
whatsoever.  Notwithstanding the
foregoing, nothing herein shall prevent the Company, any other obligor upon the
Notes, the Trustee or any agent of any of them from giving effect to any written
certification, proxy or other authorization furnished by the Depositary or
impair, as between the Depositary and its Agent Members, the operation of
customary practices governing the exercise of the rights of a beneficial owner
of any Note.  The registered Holder of a
Global Note may grant proxies and otherwise authorize any Person, including
Agent Members and Persons that may hold interests through Agent Members, to
take any action that a Holder is entitled to take under this Indenture or the
Notes.


 


The Holder of any Global Note may grant proxies and otherwise authorize
any Person, including Agent Members and Persons that may hold interests through
Agent Members, to take any action which a Holder is entitled to take under this
Indenture or the Notes.


 


(b)           Transfers of a Global Note shall be limited
to transfers of such Global Note in whole, but, subject to the immediately
succeeding sentence, not in part, to the Depositary, its successors or their
respective nominees.  Interests of
beneficial owners in a Global Note may not be transferred or exchanged for
Physical Notes unless (i) the
Company has consented thereto in writing, or such transfer or exchange is made
pursuant to the next sentence, and (ii) such
transfer or exchange is in accordance with the applicable rules and
procedures of the Depositary and the provisions of Sections 305 and
313.  Subject to the limitation on
issuance of Physical Notes set forth in Section 313(3), Physical
Notes shall be transferred to all beneficial owners in exchange for their
beneficial interests in the relevant Global Note, if (i) the
Depositary notifies the Company at any time that it is unwilling or unable to
continue as Depositary for the Global Notes and a successor depositary is not
appointed within 120 days; (ii) the
Depositary ceases to be registered as a “Clearing Agency” under the Securities
Exchange Act of 1934 and a successor depositary is not appointed within 120
days; (iii) the Company, at its option,
notifies the Trustee that it elects to cause the issuance of Physical Notes; or
(iv) an Event of Default shall have
occurred and be continuing with respect to the Notes and the Trustee has
received a written request from the Depositary to issue Physical Notes.


 


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(c)           In connection with any transfer or
exchange of a portion of the beneficial interest in any Global Note to
beneficial owners for Physical Notes pursuant to Section 312(b),
the Note Registrar shall record on its books and records the date and a
decrease in the principal amount of such Global Note in an amount equal to the
beneficial interest in the Global Note being transferred, and the Company shall
execute, and the Trustee shall authenticate and deliver, one or more Physical
Notes of like tenor and principal amount of authorized denominations.


 


(d)           In connection with a transfer of an
entire Global Note to beneficial owners pursuant to Section 312(b),
the applicable Global Note shall be deemed to be surrendered to the Trustee for
cancellation, and the Company shall execute, and the Trustee shall authenticate
and deliver, to each beneficial owner identified by the Depositary, in exchange
for its beneficial interest in the applicable Global Note, an equal aggregate
principal amount of Rule 144A Physical Notes (in the case of any Rule 144A
Global Note) or Regulation S Physical Notes (in the case of any
Regulation S Global Note), as the case may be, of authorized
denominations.


 


(e)           The transfer and exchange of a Global
Note or beneficial interests therein shall be effected through the Depositary,
in accordance with this Indenture (including applicable restrictions on
transfer set forth in Section 313) and the applicable rules and
procedures therefor of the Depositary. 
Any beneficial interest in one of the Global Notes that is transferred
to a Person who takes delivery in the form of an interest in a different Global
Note will, upon transfer, cease to be an interest in such Global Note and
become an interest in the other Global Note and, accordingly, will thereafter
be subject to all transfer restrictions, if any, and other procedures
applicable to beneficial interests in such other Global Note for as long as it
remains such an interest.  A transferor
of a beneficial interest in a Global Note shall deliver to the Note Registrar a
written order given in accordance with the Depositary’s applicable rules and
procedures containing information regarding the participant account of the
Depositary to be credited with a beneficial interest in the relevant Global
Note (or shall otherwise comply with the then applicable rules and
procedures of the Depositary).  Subject
to Section 313, the Note Registrar shall, in accordance with such
instructions, instruct the Depositary to credit to the account of the Person
specified in such instructions a beneficial interest in such Global Note and to
debit the account of the Person making the transfer the beneficial interest in
the Global Note being transferred.


 


(f)            Any Physical Note delivered in
exchange for an interest in a Global Note pursuant to Section 312(b) shall,
unless such exchange is made on or after the Resale Restriction Termination
Date applicable to such Note and except as otherwise provided in Section 203
and Section 313, bear the Private Placement Legend.


 


(g)           Notwithstanding the foregoing,
through the Restricted Period, a beneficial interest in a Regulation S
Global Note may be held only through designated Agent Members holding on behalf
of Euroclear or Clearstream unless delivery is made in accordance with the
applicable provisions of Section 313.


 


(h)           The
Note Registrar shall record on its books and records the increase in principal
amount of each Global Note as a result of any PIK Payment and the related
Interest 


 


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Payment Date of such PIK
Payment and shall record such increase in the “Schedule of Increases or
Decreases in Global Note” attached to such Global Note (or, alternatively,
shall record on its books and records any additional Global Note or Notes
issued as a result of any such PIK Payment, which may be issued at the Company’s
option pursuant to Section 301). 
No consent of the Holders shall be required for any such increase in
principal amount of any Global Note (or the issuance of any such additional
Global Note or Notes) or for the recording thereof on the Note Registrar’s
books and records.


 


Section 313.           Special
Transfer Provisions.


 


(1)           Transfers to Non-U.S. Persons.  The following provisions shall apply with
respect to the registration of any proposed transfer of a Note that is a
Restricted Security to any Non-U.S. Person: 
The Note Registrar shall register such transfer if it complies with all
other applicable requirements of this Indenture (including Section 305)
and,


 


(a)           if
(x) such transfer is after
the relevant Resale Restriction Termination Date with respect to such Note or (y) the proposed transferor has
delivered to the Note Registrar and the Company and the Trustee a
Regulation S Certificate and, unless otherwise agreed by the Company and
the Trustee, an opinion of counsel, certifications and other information
satisfactory to the Company and the Trustee, and


 


(b)           if
the proposed transferor is or is acting through an Agent Member holding a
beneficial interest in a Global Note, upon receipt by the Note Registrar and
the Company and the Trustee of (x) the
certificate, opinion, certifications and other information, if any, required by
clause (a) above and (y) written instructions given in
accordance with the procedures of the Note Registrar and of the Depositary;


 


whereupon (i) the
Note Registrar shall reflect on its books and records the date and (if the
transfer does not involve a transfer of any Outstanding Physical Note) a
decrease in the principal amount of the relevant Global Note in an amount equal
to the principal amount of the beneficial interest in the relevant Global Note
to be transferred, and (ii) either
(A) if the proposed transferee is or
is acting through an Agent Member holding a beneficial interest in a relevant
Regulation S Global Note, the Note Registrar shall reflect on its books
and records the date and an increase in the principal amount of such
Regulation S Global Note in an amount equal to the principal amount of the
beneficial interest being so transferred or (B) otherwise
the Company shall execute and the Trustee shall authenticate and deliver one or
more Physical Notes of like tenor and amount.


 


(2)           Transfers to QIBs. 
The following provisions shall apply with respect to the registration of
any proposed transfer of a Note that is a Restricted Security to a QIB (excluding
transfers to Non-U.S. Persons):  The Note
Registrar shall register such transfer if it complies with all other applicable
requirements of this Indenture (including Section 305) and,


 


(a)           if
such transfer is being made by a proposed transferor who has checked the box
provided for on the form of such Note stating, or has otherwise certified to
the 


 


67

















 


Note Registrar and the Company and the
Trustee in writing, that the sale has been made in compliance with the
provisions of Rule 144A to a transferee who has signed the certification
provided for on the form of such Note stating, or has otherwise certified to
Note Registrar and the Company and the Trustee in writing, that it is
purchasing such Note for its own account or an account with respect to which it
exercises sole investment discretion and that it and any such account is a QIB
within the meaning of Rule 144A, and is aware that the sale to it is being
made in reliance on Rule 144A and acknowledges that it has received such
information regarding the Company as it has requested pursuant to Rule 144A
or has determined not to request such information and that it is aware that the
transferor is relying upon its foregoing representations in order to claim the
exemption from registration provided by Rule 144A; and


 


(b)           if
the proposed transferee is an Agent Member, and the Note to be transferred
consists of a Physical Note that after transfer is to be evidenced by an
interest in a Global Note or consists of a beneficial interest in a Global Note
that after the transfer is to be evidenced by an interest in a different Global
Note, upon receipt by the Note Registrar of written instructions given in
accordance with the Depositary’s and the Note Registrar’s procedures, whereupon
the Note Registrar shall reflect on its books and records the date and an
increase in the principal amount of the transferee Global Note in an amount
equal to the principal amount of the Physical Note or such beneficial interest
in such transferor Global Note to be transferred, and the Trustee shall cancel
the Physical Note so transferred or reflect on its books and records the date
and a decrease in the principal amount of such transferor Global Note, as the
case may be.


 


(3)           Limitation on
Issuance of Physical Notes.  No
Physical Note shall be exchanged for a beneficial interest in any Global Note,
except in accordance with Section 312 and this Section 313.


 


A beneficial owner of an interest in a Temporary Regulation S
Global Note (and, in the case of any Additional Notes for which no Temporary
Regulation S Global Note is issued, any Regulation S Global Note)
shall not be permitted to exchange such interest for a Physical Note (any such
exchange being limited, in any case, to the circumstances set forth in Section 312(b))
or (in the case of such interest in a Temporary Regulation S Global Note)
an interest in a Permanent Regulation S Global Note until a date, which
must be after the Distribution Compliance Date, on which the Company receives a
certificate of beneficial ownership substantially in the form of Exhibit C
from such beneficial owner (a “Certificate of Beneficial Ownership”).  Such date, as it relates to a
Regulation S Global Note, is herein referred to as the “Regulation S
Note Exchange Date.”


 


(4)           Private Placement
Legend.  Upon the transfer, exchange
or replacement of Notes not bearing the Private Placement Legend, the Note
Registrar shall deliver Notes that do not bear the Private Placement
Legend.  Upon the transfer, exchange or replacement
of Notes bearing the Private Placement Legend, the Note Registrar shall deliver
only Notes that bear the Private Placement Legend unless (i) the
requested transfer is after the relevant Resale Restriction 


 


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Termination Date with respect to such Notes, (ii) upon written request of the Company after there is
delivered to the Note Registrar an opinion of counsel (which opinion and
counsel are satisfactory to the Company and the Trustee) to the effect that
neither such legend nor the related restrictions on transfer are required in
order to maintain compliance with the provisions of the Securities Act, (iii) with respect to a Regulation S Global Note
(on or after the Regulation S Note Exchange Date with respect to such
Regulation S Global Note) or Regulation S Physical Note, in each case
with the agreement of the Company, or (iv) such
Notes are sold or exchanged pursuant to an effective registration statement
under the Securities Act.


 


(5)           Other Transfers.  The Note Registrar shall effect and register,
upon receipt of a written request from the Company to do so, a transfer not
otherwise permitted by this Section 313, such registration to be
done in accordance with the otherwise applicable provisions of this Section 313,
upon the furnishing by the proposed transferor or transferee of a written
opinion of counsel (which opinion and counsel are satisfactory to the Company
and the Trustee) to the effect that, and such other certifications or
information as the Company or the Trustee may require (including, in the case
of a transfer to an Accredited Investor (as defined in Rule 501(a)(1),
(2), (3) or (7) under Regulation D promulgated under the
Securities Act), a certificate substantially in the form of Exhibit F)
to confirm that, the proposed transfer is being made pursuant to an exemption
from, or in a transaction not subject to, the registration requirements of the
Securities Act.


 


A Note that is a Restricted Security may not be transferred other than
as provided in this Section 313. 
A beneficial interest in a Global Note that is a Restricted Security may
not be exchanged for a beneficial interest in another Global Note other than
through a transfer in compliance with this Section 313.


 


(6)           General.  By its acceptance of any Note bearing the
Private Placement Legend, each Holder of such a Note acknowledges the
restrictions on transfer of such Note set forth in this Indenture and in the
Private Placement Legend and agrees that it will transfer such Note only as
provided in this Indenture.


 


The Note Registrar shall retain copies of all letters, notices and
other written communications received pursuant to Section 312 or
this Section 313 (including all Notes received for transfer
pursuant to Section 313). 
The Company shall have the right to require the Note Registrar to
deliver to the Company, at the Company’s expense, copies of all such letters,
notices or other written communications at any reasonable time upon the giving
of reasonable written notice to the Note Registrar.


 


In connection with any transfer of any Note, the Trustee, the Note
Registrar and the Company shall be entitled to receive, shall be under no duty
to inquire into, may conclusively presume the correctness of, and shall be
fully protected in relying upon the certificates, opinions and other
information referred to herein (or in the forms provided herein, attached
hereto or to the Notes, or otherwise) received from any Holder and any
transferee of any Note regarding the validity, legality and due authorization
of any such transfer, the eligibility of the transferee to receive such Note
and any other facts and circumstances related to such transfer.


 


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Section 314.           Payment of Additional Interest.


 


(a)           Under certain circumstances the
Company will be obligated to pay certain additional amounts of interest to the
Holders of certain Initial Notes, as more particularly set forth in such
Initial Notes.


 


(b)           Under certain circumstances the
Company may be obligated to pay certain additional amounts of interest to the
Holders of certain Initial Additional Notes, as may be more particularly set
forth in such Initial Additional Notes.


 


(c)           Prior to any Interest Payment Date on
which any such additional interest is payable, the Company shall give notice to
the Trustee of the amount of any additional interest due on such Interest
Payment Date.


 


ARTICLE IV


 


COVENANTS


 


Section 401.           Payment of Principal, Premium and
Interest.  The Company shall duly and
punctually pay the principal of (and premium, if any) and interest on the Notes
in accordance with the terms of the Notes and this Indenture.  Principal amount (and premium, if any) and
interest (including Cash Interest) on the Notes shall be considered paid on the
date due if the Company shall either have (a) deposited
with the applicable Paying Agent (if other than the Company or a wholly-owned
Domestic Subsidiary of the Company) as of 12:00 p.m. New York City time on
the due date money in immediately available funds and designated for and
sufficient to pay all principal amount (and premium, if any) and Cash Interest
then due or (b) in the case
of interest, paid such interest in the form of PIK Interest in accordance with
the terms of this Indenture.  For the avoidance of doubt and
notwithstanding any other provision of this Indenture or the Notes, interest
that is paid in the form of PIK Interest shall be considered paid or duly
provided for, for all purposes of this Indenture and the Notes, and shall not
be considered overdue.


 


Section 402.           Maintenance of Office or Agency.


 


(a)           The Company shall maintain in the
United States an office or agency where Notes may be presented or surrendered
for payment, where Notes may be surrendered for transfer or exchange and where
notices and demands to or upon the Company in respect of the Notes and this
Indenture may be served.  The Company
shall give prompt written notice to the Trustee of the location, and of any
change in the location, of such office or agency.  If at any time the Company shall fail to
maintain such office or agency or shall fail to furnish the Trustee with the
address thereof, such presentations, surrenders, notices and demands may be
made or served at the Corporate Trust Office of the Trustee.


 


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(b)           The Company may also from time to time designate one or
more other offices or agencies where the Notes may be presented or surrendered
for any or all purposes and may from time to time rescind such designations.


 


The Company hereby designates the Corporate Trust
Office of the Trustee or its Agent, as such office or agency of the Company in
accordance with Section 305 hereof.


 


Section 403.           Money for Payments to Be Held in
Trust.  If the Company shall at any
time act as Paying Agent, it shall, on or before 12:00 p.m., New York City
time, on each due date of the principal of (and premium, if any) or interest
(including Cash Interest) on, any of the Notes, segregate and hold in trust for
the benefit of the Persons entitled thereto a sum sufficient to pay the
principal (and premium, if any) or interest (including Cash Interest) so
becoming due until such sums shall be paid to such Persons or otherwise
disposed of as herein provided, and shall promptly notify the Trustee of its
action or failure so to act.


 


If the Company is not acting as Paying Agent, it shall, on or prior to
12:00 p.m., New York City time, on each due date of the principal of (and
premium, if any) or interest (including Cash Interest) on, any Notes, deposit
with a Paying Agent a sum sufficient to pay the principal (and premium, if any)
or interest (including Cash Interest) so becoming due, such sum to be held in
trust for the benefit of the Persons entitled to such principal, premium or
interest, and (unless such Paying Agent is the Trustee) the Company shall
promptly notify the Trustee of its action or failure so to act.


 


If the Company is not acting as Paying Agent, the Company shall cause
any Paying Agent other than the Trustee to execute and deliver to the Trustee
an instrument in which such Paying Agent shall agree with the Trustee, subject
to the provisions of this Section 403, that such Paying Agent shall


 


(1)           hold
all sums held by it for the payment of principal of (and premium, if any) or
interest (including Cash Interest) on Notes in trust for the benefit of the
Persons entitled thereto until such sums shall be paid to such Persons or
otherwise disposed of as herein provided;


 


(2)           give
the Trustee notice of any default by the Company (or any other obligor upon the
Notes) in the making of any such payment of principal (and premium, if any) or
interest (including Cash Interest);


 


(3)           at
any time during the continuance of any such default, upon the written request
of the Trustee, forthwith pay to the Trustee all sums so held in trust by such
Paying Agent; and


 


(4)           acknowledge,
accept and agree to comply in all respects with the provisions of this
Indenture and TIA relating to the duties, rights and liabilities of such Paying
Agent.


 


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The Company may at any time, for the purpose of obtaining the
satisfaction and discharge of this Indenture or for any other purpose, pay, or
by Company Order direct any Paying Agent to pay, to the Trustee all sums held
in trust by the Company or such Paying Agent, such sums to be held by the
Trustee upon the same trusts as those upon which such sums were held by the
Company or such Paying Agent; and, upon such payment by any Paying Agent to the
Trustee, such Paying Agent shall be released from all further liability with
respect to such money.


 


Any money deposited with the Trustee or any Paying Agent, or then held
by the Company, in trust for the payment of the principal of (and premium, if
any) or interest (including Cash Interest) on any Note and remaining unclaimed
for two years after such principal (and premium, if any) or interest (including
Cash Interest) has become due and payable shall be paid to the Company on
Company Request, or (if then held by the Company) shall be discharged from such
trust; and the Holder of such Note shall thereafter, as an unsecured general
creditor, look only to the Company for payment thereof, and all liability of
the Trustee or such Paying Agent with respect to such trust money, and all liability
of the Company as trustee thereof, shall thereupon cease.


 


Section 404.           [Reserved].


 


Section 405.           SEC Reports.  Notwithstanding that the Company may not be
required to be or remain subject to the reporting requirements of Section 13(a) or
15(d) of the Exchange Act, the Company will file with the SEC (unless such
filing is not permitted under the Exchange Act or by the SEC), so long as the
Notes are Outstanding, the annual reports, information, documents and other
reports that the Company is required to file with the SEC pursuant to such Section 13(a) or
15(d) or would be so required to file if the Company were so subject.  The Company will also, within 15 days after
the date on which the Company was so required to file or would be so required
to file if the Company were so subject, transmit by mail to all Holders, as
their names and addresses appear in the Note Register, and to the Trustee (or
make available on a Company website) copies of any such information, documents
and reports (without exhibits) so required to be filed.  Notwithstanding the foregoing, if any audited
or reviewed financial statements or information required to be included in any
such filing are not reasonably available on a timely basis as a result of the
Company’s accountants not being “independent” (as defined pursuant to the
Exchange Act and the rules and regulations of the SEC thereunder), the
Company may, in lieu of making such filing or transmitting or making available
the information, documents and reports so required to be filed, elect to make a
filing on an alternative form or transmit or make available unaudited or
unreviewed financial statements or information substantially similar to such
required audited or reviewed financial statements or information, provided that (a) the Company shall in any event be required to make
such filing and so transmit or make available, as applicable, such audited or
reviewed financial statements or information no later than the first
anniversary of the date on which the same was otherwise required pursuant to
the preceding provisions of this paragraph (such initial date, the “Reporting
Date”) and (b) if the
Company makes such an election and such filing has not been made, or such
information, documents and reports have not been transmitted or made available,
as the 


 


72

















 


case may be, within 90 days after such
Reporting Date, liquidated damages will accrue on the Notes at a rate of 0.50%
per annum from the date that is 90 days after such Reporting Date to the
earlier of (x) the date on
which such filing has been made, or such information, documents and reports
have been transmitted or made available, as the case may be, and (y) the first anniversary of such
Reporting Date (provided that not more than 0.50% per annum in liquidated
damages shall be payable for any period regardless of the number of such
elections by the Company).  The Company
will be deemed to have satisfied the requirements of this covenant if any
Parent files and provides reports, documents and information of the types
otherwise so required, in each case within the applicable time periods, and the
Company is not required to file such reports, documents and information
separately under the applicable rules and regulations of the SEC (after
giving effect to any exemptive relief) because of the filings by such
Parent.  The Company also will comply
with the other provisions of TIA § 314(a).


 


Section 406.           Statement as to Default.  The Company shall deliver to the Trustee,
within 120 days after the end of each fiscal year of the Company ending
after the Issue Date, an Officer’s Certificate to the effect that to the best
knowledge of the signer thereof on behalf of the Company, the Company is or is
not in default in the performance and observance of any of the terms,
provisions and conditions of this Indenture (without regard to any period of
grace or requirement of notice provided hereunder) and, if the Company (through
its own action or omission or through the action or omission of any Subsidiary
Guarantor, as applicable) shall be in default, specifying all such defaults and
the nature and status thereof of which such signer may have knowledge.  To the extent required by the TIA, each
Subsidiary Guarantor shall comply with TIA § 314(a)(4).  The individual signing any certificate given
by any Person pursuant to this Section 406 shall be the principal
executive, financial or accounting officer of such Person, in compliance with
TIA § 314(a)(4).


 


Section 407.           Limitation on Indebtedness.


 


(a)           The Company will not, and will not
permit any Restricted Subsidiary to, Incur any Indebtedness; provided, however, that
the Company or any Restricted Subsidiary may Incur Indebtedness if on the date
of the Incurrence of such Indebtedness, after giving effect to the Incurrence
thereof, the Consolidated Coverage Ratio would be equal to or greater than
2.00:1.00.


 


(b)           Notwithstanding the foregoing
paragraph (a), the Company and its
Restricted Subsidiaries may Incur the following Indebtedness:


 


(i)            Indebtedness
Incurred pursuant to any Credit Facility (including but not limited to in
respect of letters of credit or bankers’ acceptances issued or created
thereunder) and Indebtedness Incurred other than under any Credit Facility, and
(without limiting the foregoing), in each case, any Refinancing Indebtedness in
respect thereof, in a maximum principal amount at any time outstanding not
exceeding in the aggregate the amount equal to (A) $3,500.0 million, plus (B) in the event of any refinancing of any such
Indebtedness, the aggregate amount of fees, underwriting discounts, premiums
and other costs and expenses incurred in connection with such refinancing,
minus (C) the aggregate
principal amount of Delayed Draw Term Loans (if any) classified by the Company
as 


 


73





















 


Refinancing Indebtedness Incurred pursuant to clause (b)(iii) below
to refinance any Existing 2007 Notes or Existing 2009 Notes, minus (D) the amount, if any, not borrowed
under the Delayed Draw Term Loan Commitments upon the termination thereof on
the Delayed Draw Term Loan Commitment Termination Date;


 


(ii)           Indebtedness
(A) of any Restricted
Subsidiary to the Company or (B) of
the Company or any Restricted Subsidiary to any Restricted Subsidiary; provided, that any
subsequent issuance or transfer of any Capital Stock of such Restricted
Subsidiary to which such Indebtedness is owed, or other event, that results in
such Restricted Subsidiary ceasing to be a Restricted Subsidiary or any other
subsequent transfer of such Indebtedness (except to the Company or a Restricted
Subsidiary) will be deemed, in each case, an Incurrence of such Indebtedness by
the issuer thereof not permitted by this clause (ii);


 


(iii)          Indebtedness
(x) represented by the Notes
(other than any Additional Notes), any Indebtedness (other than the
Indebtedness described in clause (ii) above)
outstanding on the Closing Date, or (y) represented
by Notes issued in connection with the payment of PIK Interest; and any
Refinancing Indebtedness Incurred in respect of any Indebtedness described in
this clause (iii) or
paragraph (a) above;


 


(iv)          Purchase
Money Obligations and Capitalized Lease Obligations, and any Refinancing
Indebtedness with respect thereto; provided
that the aggregate principal amount of such Purchase Money Obligations Incurred
to finance the acquisition of Capital Stock of any Person at any time
outstanding pursuant to this clause shall not exceed an amount equal to the
greater of $175.0 million and 15.0% of Consolidated Tangible Assets;


 


(v)           Indebtedness
(A) supported by a letter of credit
issued pursuant to any Credit Facility in a principal amount not exceeding the
face amount of such letter of credit or (B) consisting
of accommodation guarantees for the benefit of trade creditors of the Company
or any of its Restricted Subsidiaries;


 


(vi)          (A) Guarantees
by the Company or any Restricted Subsidiary of Indebtedness or any other
obligation or liability of the Company or any Restricted Subsidiary (other than
any Indebtedness Incurred by the Company or such Restricted Subsidiary, as the
case may be, in violation of this Section 407), or (B) without limiting Section 413,
Indebtedness of the Company or any Restricted Subsidiary arising by reason of
any Lien granted by or applicable to such Person securing Indebtedness of the
Company or any Restricted Subsidiary (other than any Indebtedness Incurred by
the Company or such Restricted Subsidiary, as the case may be, in violation of
this Section 407);


 


(vii)         Indebtedness
of the Company or any Restricted Subsidiary (A) arising
from the honoring of a check, draft or similar instrument drawn against
insufficient funds, provided that
such Indebtedness is extinguished within five Business Days of its


 


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Incurrence,
or (B) consisting of
guarantees, indemnities, obligations in respect of earnouts or other purchase
price adjustments, or similar obligations, Incurred in connection with the
acquisition or disposition of any business, assets or Person;


 


(viii)        Indebtedness of the
Company or any Restricted Subsidiary in respect of (A) letters of credit, bankers’ acceptances or other
similar instruments or obligations issued, or relating to liabilities or
obligations incurred, in the ordinary course of business (including those
issued to governmental entities in connection with self-insurance under
applicable workers’ compensation statutes), or (B) completion guarantees, surety, judgment,
appeal or performance bonds, or other similar bonds, instruments or obligations,
provided, or relating to liabilities or obligations incurred, in the ordinary
course of business, including in respect of liabilities or obligations of
franchisees, or (C) Hedging
Obligations, entered into for bona fide hedging purposes, or (D) Management Guarantees or
Management Indebtedness, or (E) the
financing of insurance premiums in the ordinary course of business, or (F) take-or-pay obligations
under supply arrangements incurred in the ordinary course of business, or (G) netting, overdraft protection
and other arrangements arising under standard business terms of any bank at
which the Company or any Restricted Subsidiary maintains an overdraft, cash
pooling or other similar facility or arrangement;


 


(ix)           Indebtedness (A) of a Special Purpose Subsidiary
secured by a Lien on all or part of the assets disposed of in, or otherwise
Incurred in connection with, a Financing Disposition or (B) otherwise Incurred in connection
with a Special Purpose Financing; provided that (1) such Indebtedness is not recourse
to the Company or any Restricted Subsidiary that is not a Special Purpose
Subsidiary (other than with respect to Special Purpose Financing Undertakings),
(2) in the event such
Indebtedness shall become recourse to the Company or any Restricted Subsidiary
that is not a Special Purpose Subsidiary (other than with respect to Special
Purpose Financing Undertakings), such Indebtedness will be deemed to be, and
must be classified by the Company as, Incurred at such time (or at the time
initially Incurred) under one or more of the other provisions of this Section 407
for so long as such Indebtedness shall be so recourse; and (3) in the event that at any time
thereafter such Indebtedness shall comply with the provisions of the preceding
subclause (1), the Company
may classify such Indebtedness in whole or in part as Incurred under this Section 407(b)(ix);


 


(x)            Indebtedness of the
Company or any Restricted Subsidiary in an aggregate principal amount at any
time outstanding not exceeding an amount equal to (A) (1) the
Foreign Borrowing Base less (2) the
aggregate principal amount of Indebtedness Incurred by Special Purpose
Subsidiaries that are Foreign Subsidiaries and then outstanding pursuant to
clause (ix) of this
paragraph (b) plus (B) in the event of any refinancing of
any Indebtedness Incurred under this clause (x), the aggregate amount of fees, underwriting discounts,
premiums and other costs and expenses incurred in connection with such
refinancing;


 


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(xi)           Contribution
Indebtedness and any Refinancing Indebtedness with respect thereto;


 


(xii)          Indebtedness of (A) the Company or any Restricted
Subsidiary Incurred to finance or refinance, or otherwise Incurred in
connection with, any acquisition of assets (including Capital Stock), business
or Person, or any merger or consolidation of any Person with or into the
Company or any Restricted Subsidiary, or (B) any
Person that is acquired by or merged or consolidated with or into the Company
or any Restricted Subsidiary (including Indebtedness thereof Incurred in
connection with any such acquisition, merger or consolidation), provided that on the
date of such acquisition, merger or consolidation, after giving effect thereto,
either (1) the Company would
have a Consolidated Total Leverage Ratio equal to or less than 7.25:1.00 or (2) the Consolidated Total Leverage
Ratio of the Company would equal or be less than the Consolidated Total
Leverage Ratio of the Company immediately prior to giving effect thereto; and
any Refinancing Indebtedness with respect to any such Indebtedness;


 


(xiii)         Indebtedness of the
Company or any Restricted Subsidiary Incurred as consideration in connection
with any acquisition of assets (including Capital Stock), business or Person,
or any merger or consolidation of any Person with or into the Company or any
Restricted Subsidiary, and any Refinancing Indebtedness with respect thereto,
in an aggregate principal amount at any time outstanding not exceeding $75.0
million; and


 


(xiv)        Indebtedness of the
Company or any Restricted Subsidiary in an aggregate principal amount at any
time outstanding not exceeding an amount equal to the greater of
$150.0 million and 11.25% of Consolidated Tangible Assets.


 


(c)           For purposes of determining compliance with, and the
outstanding principal amount of any particular Indebtedness Incurred pursuant
to and in compliance with, this Section 407, (i) any
other obligation of the obligor on such Indebtedness (or of any other Person
who could have Incurred such Indebtedness under this Section 407)
arising under any Guarantee, Lien or letter of credit, bankers’ acceptance or
other similar instrument or obligation supporting such Indebtedness shall be
disregarded to the extent that such Guarantee, Lien or letter of credit,
bankers’ acceptance or other similar instrument or obligation secures the
principal amount of such Indebtedness; (ii) in the
event that Indebtedness meets the criteria of more than one of the types of
Indebtedness described in paragraph (b) above,
the Company, in its sole discretion, shall classify such item of Indebtedness
and may include the amount and type of such Indebtedness in one or more of such
clauses (including in part under one such clause and in part under another such
clause); provided that any
Indebtedness Incurred pursuant to clause (b)(iv) of this Section 407 as limited by the
proviso thereto, or clause (b)(xiv) of this Section 407, shall, at the Company’s
election, cease to be deemed Incurred or outstanding for purposes of such
clause but shall be deemed Incurred for the purposes of paragraph (a) of this Section 407 from and after the
first date on which such Restricted Subsidiary could have Incurred such
Indebtedness under paragraph (a) of this
Section 407 without reliance on such clause and (iii) the
amount of 


 


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Indebtedness issued at a price that is less
than the principal amount thereof shall be equal to the amount of the liability
in respect thereof determined in accordance with GAAP.


 


(d)           For purposes of determining compliance with any
dollar-denominated restriction on the Incurrence of Indebtedness denominated in
a foreign currency, the dollar-equivalent principal amount of such Indebtedness
Incurred pursuant thereto shall be calculated based on the relevant currency
exchange rate in effect on the date that such Indebtedness was Incurred, in the
case of term Indebtedness, or first committed, in the case of revolving credit
Indebtedness, provided that (x) the dollar-equivalent principal amount of any such
Indebtedness outstanding on the Issue Date shall be calculated based on the
relevant currency exchange rate in effect on the Issue Date, (y) if such Indebtedness is Incurred to refinance other
Indebtedness denominated in a foreign currency (or in a different currency from
such Indebtedness so being Incurred), and such refinancing would cause the
applicable dollar-denominated restriction to be exceeded if calculated at the
relevant currency exchange rate in effect on the date of such refinancing, such
dollar-denominated restriction shall be deemed not to have been exceeded so
long as the principal amount of such refinancing Indebtedness does not exceed (i) the outstanding or committed principal amount
(whichever is higher) of such Indebtedness being refinanced plus (ii) the aggregate
amount of fees, underwriting discounts, premiums and other costs and expenses
incurred in connection with such refinancing and (z) the
dollar-equivalent principal amount of Indebtedness denominated in a foreign
currency and Incurred pursuant to a Senior Credit Facility shall be calculated
based on the relevant currency exchange rate in effect on, at the Company’s
option, (i) the Issue Date, (ii) any date on
which any of the respective commitments under such Senior Credit Facility shall
be reallocated between or among facilities or subfacilities thereunder, or on
which such rate is otherwise calculated for any purpose thereunder, or (iii) the date of
such Incurrence.  The principal amount of
any Indebtedness Incurred to refinance other Indebtedness, if Incurred in a
different currency from the Indebtedness being refinanced, shall be calculated
based on the currency exchange rate applicable to the currencies in which such
respective Indebtedness is denominated that is in effect on the date of such
refinancing.


 


Section 408.           [Reserved].


 


Section 409.           Limitation on Restricted Payments.


 


(a)           The Company shall not, and shall not permit any Restricted
Subsidiary, directly or indirectly, to (i) declare
or pay any dividend or make any distribution on or in respect of its Capital
Stock (including any such payment in connection with any merger or
consolidation to which the Company is a party) except (x) dividends
or distributions payable solely in its Capital Stock (other than Disqualified
Stock) and (y) dividends or distributions
payable to the Company or any Restricted Subsidiary (and, in the case of any
such Restricted Subsidiary making such dividend or distribution, to other
holders of its Capital Stock on no more than a  pro rata
basis, measured by value), (ii) purchase, redeem, retire or
otherwise acquire for value any Capital Stock of the Company held by Persons
other than the Company or a Restricted Subsidiary (other than any acquisition
of Capital Stock deemed to occur upon the exercise of 


 


77





















 


options if such Capital Stock represents a
portion of the exercise price thereof), (iii) voluntarily purchase,
repurchase, redeem, defease or otherwise voluntarily acquire or retire for
value, prior to scheduled maturity, scheduled repayment or scheduled sinking
fund payment, any Continuing Notes or Subordinated Obligations (other than a
purchase, repurchase, redemption, defeasance or other acquisition or retirement
for value in anticipation of satisfying a sinking fund obligation, principal
installment or final maturity, in each case due within one year of the date of
such acquisition or retirement) or (iv) make
any Investment (other than a Permitted Investment) in any Person (any such
dividend, distribution, purchase, repurchase, redemption, defeasance, other
acquisition or retirement or Investment being herein referred to as a “Restricted
Payment”), if at the time the Company or such Restricted Subsidiary makes
such Restricted Payment and after giving effect thereto:


 


(1)           a Default shall have
occurred and be continuing (or would result therefrom);


 


(2)           the Company could
not Incur at least an additional $1.00 of Indebtedness pursuant to Section 407(a);
or


 


(3)           the aggregate amount
of such Restricted Payment and all other Restricted Payments (the amount so
expended, if other than in cash, to be as determined in good faith by the Board
of Directors, whose determination shall be conclusive and evidenced by a
resolution of the Board of Directors) declared or made subsequent to the
Closing Date and then outstanding would exceed, without duplication, the sum
of:


 


(A)          50%
of the Consolidated Net Income accrued during the period (treated as one
accounting period) beginning on the Reference Date to the end of the most
recent fiscal quarter ending prior to the date of such Restricted Payment for
which consolidated financial statements of the Company are available (or, in
case such Consolidated Net Income shall be a negative number, 100% of such
negative number);


 


(B)           the
aggregate Net Cash Proceeds and the fair value (as determined in good faith by
the Company) of property or assets received (x) by
the Company as capital contributions to the Company after the Closing Date or
from the issuance or sale (other than to a Restricted Subsidiary) of its
Capital Stock (other than Disqualified Stock or Designated Preferred Stock)
after the Closing Date (other than Excluded Contributions and Contribution
Amounts) or (y) by the Company or any
Restricted Subsidiary from the issuance and sale by the Company or any
Restricted Subsidiary after the Closing Date of Indebtedness that shall have
been converted into or exchanged for Capital Stock of the Company (other than
Disqualified Stock or Designated Preferred Stock) or any Parent, plus the
amount of any cash and the fair value (as determined in good faith by the
Company) of any property or assets, received by the Company or any Restricted
Subsidiary upon such conversion or exchange;


 


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(C)           (i) the aggregate amount of cash and the fair value (as
determined in good faith by the Company) of any property or assets received
from dividends, distributions, interest payments, return of capital, repayments
of Investments or other transfers of assets to the Company or any Restricted
Subsidiary from any Unrestricted Subsidiary, including dividends or other
distributions related to dividends or other distributions made pursuant to
clause (x) of the following
paragraph (b), plus (ii) the
aggregate amount resulting from the redesignation of any Unrestricted
Subsidiary as a Restricted Subsidiary (valued in each case as provided in the
definition of “Investment”); and


 


(D)          in
the case of any disposition or repayment of any Investment constituting a
Restricted Payment (without duplication of any amount deducted in calculating
the amount of Investments at any time outstanding included in the amount of
Restricted Payments), the aggregate amount of cash and the fair value (as
determined in good faith by the Company) of any property or assets received by
the Company or a Restricted Subsidiary with respect to all such dispositions
and repayments.


 


(b)           The provisions of Section 409(a) will not
prohibit any of the following (each, a “Permitted Payment”):


 


(i)            any purchase,
redemption, repurchase, defeasance or other acquisition or retirement of
Capital Stock of the Company (“Treasury Capital Stock”), Continuing
Notes or Subordinated Obligations made by exchange (including any such exchange
pursuant to the exercise of a conversion right or privilege in connection with
which cash is paid in lieu of the issuance of fractional shares) for, or out of
the proceeds of the substantially concurrent issuance or sale of, Capital Stock
of the Company (other than Disqualified Stock and other than Capital Stock
issued or sold to a Subsidiary) (“Refunding Capital Stock”) or a
substantially concurrent capital contribution to the Company, in each case
other than Excluded Contributions and Contribution Amounts; provided, that the Net Cash Proceeds from such issuance, sale or capital
contribution shall be excluded in subsequent calculations under Section 409(a)(3)(B) and (y) if immediately prior to such
acquisition or retirement of such Treasury Capital Stock, dividends thereon
were permitted pursuant to clause (xi)
of this Section 409(b), dividends on such Refunding Capital Stock
in an aggregate amount per annum not exceeding the aggregate amount per annum
of dividends so permitted on such Treasury Capital Stock;


 


(ii)           any purchase,
redemption, repurchase, defeasance or other acquisition or retirement of
Continuing Notes or Subordinated Obligations (w) made
by exchange for, or out of the proceeds of the substantially concurrent
issuance or sale of, Indebtedness of the Company (other than with respect to
the Continuing Notes) or Refinancing Indebtedness Incurred in compliance with Section 407,
(x) from Net Available Cash
to the extent permitted by Section 411, (y) following the occurrence of a Change of Control (or other
similar event described therein as a “change of control”), but only if the 


 


79





















 


Company
shall have complied with Section 415 and, if required, purchased
all Notes tendered pursuant to the offer to repurchase all the Notes required
thereby, prior to purchasing or repaying such Continuing Notes or Subordinated
Obligations or (z) constituting
Acquired Indebtedness;


 


(iii)          any dividend paid
within 60 days after the date of declaration thereof if at such date of
declaration such dividend would have complied with Section 409(a);


 


(iv)          Investments or other
Restricted Payments in an aggregate amount outstanding at any time not to
exceed the amount of Excluded Contributions;


 


(v)           loans, advances,
dividends or distributions by the Company to any Parent to permit any Parent to
repurchase or otherwise acquire its Capital Stock (including any options,
warrants or other rights in respect thereof), or payments by the Company to
repurchase or otherwise acquire Capital Stock of any Parent or the Company
(including any options, warrants or other rights in respect thereof), in each
case from Management Investors, such payments, loans, advances, dividends or
distributions not to exceed an amount (net of repayments of any such loans or
advances) equal to (x) (1) $30.0 million, plus (2) $10.0 million multiplied by
the number of calendar years that have commenced since the Closing Date, plus (y) the Net Cash Proceeds received by
the Company since the Closing Date from, or as a capital contribution from, the
issuance or sale to Management Investors of Capital Stock (including any
options, warrants or other rights in respect thereof), to the extent such Net
Cash Proceeds are not included in any calculation under Section 409(a)(3)(B)(x),
plus (z) the cash proceeds
of key man life insurance policies received by the Company or any Restricted
Subsidiary (or by any Parent and contributed to the Company) since the Closing
Date to the extent such cash proceeds are not included in any calculation under
Section 409(a)(3)(A); provided that any
cancellation of Indebtedness owing to the Company or any Restricted Subsidiary
by any Management Investor in connection with any repurchase or other
acquisition of Capital Stock (including any options, warrants or other rights
in respect thereof) from any Management Investor shall not constitute a
Restricted Payment for purposes of this Section 409 or any other
provision of this Indenture;


 


(vi)          the payment by the
Company of, or loans, advances, dividends or distributions by the Company to
any Parent to pay, dividends on the common stock or equity of the Company or
any Parent following a public offering of such common stock or equity in an
amount not to exceed in any fiscal year 6% of the aggregate gross proceeds
received by the Company (whether directly, or indirectly through a contribution
to common equity capital) in or from such public offering;


 


(vii)         Restricted Payments
(including loans or advances) in an aggregate amount outstanding at any time
not to exceed an amount (net of repayments of any such loans or advances) equal
to the greater of $50.0 million and 3.75% of Consolidated Tangible Assets;


 


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(viii)        loans, advances,
dividends or distributions to any Parent or other payments by the Company or
any Restricted Subsidiary (A) to
satisfy or permit any Parent to satisfy obligations under the Management
Agreements, (B) pursuant to
the Tax Sharing Agreement, or (C) to
pay or permit any Parent to pay any Parent Expenses or any Related Taxes;


 


(ix)           payments by the
Company, or loans, advances, dividends or distributions by the Company to any
Parent to make payments, to holders of Capital Stock of the Company or any
Parent in lieu of issuance of fractional shares of such Capital Stock, not to
exceed $5.0 million in the aggregate outstanding at any time;


 


(x)            dividends or other
distributions of Capital Stock, Indebtedness or other securities of
Unrestricted Subsidiaries;


 


(xi)           (A) dividends on any Designated Preferred
Stock of the Company issued after the Closing Date, provided that at the time of such issuance and after giving
effect thereto on a pro forma basis, the Consolidated Coverage Ratio would be
at least 2.00:1.00, or (B) any
dividend on Refunding Capital Stock that is Preferred Stock in excess of the
amount of dividends thereon permitted by clause (i) of this paragraph (b), provided
that at the time of the declaration of such dividend and after giving effect
thereto on a pro forma basis, the Consolidated Coverage Ratio would be at least
2.00:1.00, or (C) loans,
advances, dividends or distributions to any Parent to permit dividends on any
Designated Preferred Stock of any Parent issued after the Closing Date, in an
amount (net of repayments of any such loans or advances) not exceeding the
aggregate cash proceeds received by the Company from the issuance or sale of
such Designated Preferred Stock of such Parent;


 


(xii)                             Investments in
Unrestricted Subsidiaries in an aggregate amount outstanding at any time not
exceeding the greater of $50.0 million and 5.0% of Consolidated Tangible
Assets;


 


(xiii)                          distributions
or payments of Special Purpose Financing Fees;


 


(xiv)                         any Restricted
Payment pursuant to or in connection with the Transactions; and


 


(xv)                            dividends to holders
of any class or series of Disqualified Stock, or of any Preferred Stock of a
Restricted Subsidiary, Incurred in accordance with the terms of Section 407;


 


provided, that (A) in the case of clauses (i)(y), (iii), (vi), (ix) and (xi)(B), the net
amount of any such Permitted Payment shall be included in subsequent
calculations of the amount of Restricted Payments, (B) in
all cases other than pursuant to clause (A) immediately
above, the net amount of any such Permitted Payment shall be excluded in subsequent
calculations of the amount of Restricted Payments and (C) solely
with respect 


 


81

















 


to
clause (vii), no Default or Event of
Default shall have occurred or be continuing at the time of any such Permitted
Payment after giving effect thereto.  For
the avoidance of doubt, nothing in this Section 409 shall restrict
the making of any “AHYDO catch-up payment” required by this Indenture.


 


Section 410.           Limitation on Restrictions on
Distributions from Restricted Subsidiaries. 
The Company will not, and will not permit any Restricted Subsidiary to,
create or otherwise cause to exist or become effective any consensual
encumbrance or restriction on the ability of any Restricted Subsidiary to (i) pay dividends or make any other
distributions on its Capital Stock or pay any Indebtedness or other obligations
owed to the Company, (ii) make any loans
or advances to the Company or (iii) transfer any of its property or assets to the
Company (provided that dividend
or liquidation priority between classes of Capital Stock, or subordination of
any obligation (including the application of any remedy bars thereto) to any
other obligation, will not be deemed to constitute such an encumbrance or
restriction), except any encumbrance or restriction:


 


(1)           pursuant to an
agreement or instrument in effect at or entered into on the Closing Date, any
Credit Facility, this Indenture or the Notes;


 


(2)           pursuant to any
agreement or instrument of a Person, or relating to Indebtedness or Capital
Stock of a Person, which Person is acquired by or merged or consolidated with
or into the Company or any Restricted Subsidiary, or which agreement or
instrument is assumed by the Company or any Restricted Subsidiary in connection
with an acquisition of assets from such Person, as in effect at the time of
such acquisition, merger or consolidation (except to the extent that such
Indebtedness was incurred to finance, or otherwise in connection with, such
acquisition, merger or consolidation); provided
that for purposes of this clause (2),
if a Person other than the Company is the Successor Company with respect
thereto, any Subsidiary thereof or agreement or instrument of such Person or
any such Subsidiary shall be deemed acquired or assumed, as the case may be, by
the Company or a Restricted Subsidiary, as the case may be, when such Person
becomes such Successor Company;


 


(3)           pursuant to an
agreement or instrument (a “Refinancing Agreement”) effecting a
refinancing of Indebtedness Incurred pursuant to, or that otherwise extends,
renews, refunds, refinances or replaces, an agreement or instrument referred to
in clause (1) or (2) of
this Section 410 or this clause (3) (an
“Initial Agreement”) or contained in any amendment, supplement or other
modification to an Initial Agreement (an “Amendment”); provided, however, that
the encumbrances and restrictions contained in any such Refinancing Agreement
or Amendment taken as a whole are not materially less favorable to the Holders
of the Notes than encumbrances and restrictions contained in the Initial
Agreement or Initial Agreements to which such Refinancing Agreement or
Amendment relates (as determined in good faith by the Company);


 


(4)           (A) that restricts in a customary manner the subletting,
assignment or transfer of any property or asset that is subject to a lease,
license or similar contract, or 


 


82





















 


the
assignment or transfer of any lease, license or other contract, (B) by virtue of any transfer of, agreement to transfer,
option or right with respect to, or Lien on, any property or assets of the
Company or any Restricted Subsidiary not otherwise prohibited by this
Indenture, (C) contained in mortgages, pledges
or other security agreements securing Indebtedness of a Restricted Subsidiary
to the extent restricting the transfer of the property or assets subject
thereto, (D) pursuant to customary provisions
restricting dispositions of real property interests set forth in any reciprocal
easement agreements of the Company or any Restricted Subsidiary, (E) pursuant to Purchase Money Obligations that impose
encumbrances or restrictions on the property or assets so acquired, (F) on cash or other deposits or net worth imposed by
customers or suppliers under agreements entered into in the ordinary course of
business, (G) pursuant to customary provisions
contained in agreements and instruments entered into in the ordinary course of
business (including but not limited to leases and licenses) or in joint venture
and other similar agreements, (H) that
arises or is agreed to in the ordinary course of business and does not detract
from the value of property or assets of the Company or any Restricted
Subsidiary in any manner material to the Company or such Restricted Subsidiary,
or (I) pursuant to Hedging Obligations;


 


(5)           with respect to a
Restricted Subsidiary (or any of its property or assets) imposed pursuant to an
agreement entered into for the direct or indirect sale or disposition of all or
substantially all the Capital Stock or assets of such Restricted Subsidiary (or
the property or assets that are subject to such restriction) pending the
closing of such sale or disposition;


 


(6)           by reason of any
applicable law, rule, regulation or order, or required by any regulatory
authority having jurisdiction over the Company or any Restricted Subsidiary or
any of their businesses, including any such law, rule, regulation, order or
requirement applicable in connection with such Restricted Subsidiary’s status
(or the status of any Subsidiary of such Restricted Subsidiary) as a Captive
Insurance Subsidiary or Home Warranty Subsidiary; or


 


(7)           pursuant to an
agreement or instrument (A) relating
to any Indebtedness permitted to be Incurred subsequent to the Issue Date
pursuant to the provisions of Section 407 (i) if
the encumbrances and restrictions contained in any such agreement or instrument
taken as a whole are not materially less favorable to the Holders of the Notes
than the encumbrances and restrictions contained in the Initial Agreements (as
determined in good faith by the Company), or (ii) if
such encumbrance or restriction is not materially more disadvantageous to the
Holders of the Notes than is customary in comparable financings (as determined
in good faith by the Company) and either (x) the
Company determines in good faith that such encumbrance or restriction will not
materially affect the Company’s ability to make principal or interest payments
on the Notes or (y) such encumbrance or
restriction applies only if a default occurs in respect of a payment or
financial covenant relating to such Indebtedness, (B) relating
to any sale of 


 


83





















 


receivables
by or Indebtedness of a Foreign Subsidiary or (C) relating
to Indebtedness of or a Financing Disposition by or to or in favor of any
Special Purpose Entity.


 


Section 411.           Limitation on Sales of Assets and
Subsidiary Stock.


 


(a)           The Company will not, and will not permit any Restricted
Subsidiary to, make any Asset Disposition unless


 


(i)            the
Company or such Restricted Subsidiary receives consideration (including by way
of relief from, or by any other Person assuming responsibility for, any
liabilities, contingent or otherwise) at the time of such Asset Disposition at
least equal to the fair market value of the shares and assets subject to such
Asset Disposition, as such fair market value shall be determined in good faith
by the Company, which determination shall be conclusive (including as to the
value of all noncash consideration),


 


(ii)           in
the case of any Asset Disposition (or series of related Asset Dispositions)
having a fair market value of $25.0 million or more, at least 75% of the
consideration therefor (excluding, in the case of an Asset Disposition (or
series of related Asset Dispositions), any consideration by way of relief from,
or by any other Person assuming responsibility for, any liabilities, contingent
or otherwise, that are not Indebtedness) received by the Company or such
Restricted Subsidiary is in the form of cash, and


 


(iii)          an
amount equal to 100% of the Net Available Cash from such Asset Disposition is
applied by the Company (or any Restricted Subsidiary, as the case may be) as
follows:


 


(A)          first, either (x) to the extent the Company
elects (or is required by the terms of any Bank Indebtedness, any Senior
Indebtedness of the Company or any Subsidiary Guarantor or any Indebtedness of
a Restricted Subsidiary that is not a Subsidiary Guarantor), to
prepay, repay or purchase any such Indebtedness or (in the case of
letters of credit, bankers’ acceptances or other similar instruments) cash
collateralize any such Indebtedness (in each case other than Indebtedness owed
to the Company or a Restricted Subsidiary) within 450 days after the later of
the date of such Asset Disposition and the date of receipt of such Net
Available Cash, or (y) to the
extent the Company or such Restricted Subsidiary elects, to invest in
Additional Assets (including by means of an investment in Additional Assets by
a Restricted Subsidiary with an amount equal to Net Available Cash received by
the Company or another Restricted Subsidiary) within 450 days from the later of
the date of such Asset Disposition and the date of receipt of such Net
Available Cash, or, if such investment in Additional Assets is a project
authorized by the Board of Directors that will take longer than such 450 days
to complete, the period of time necessary to complete such project;


 


(B)           second, to the extent of the balance of such Net Available Cash after
application in accordance with clause (A) above
(such balance, the “Excess


 


84
















 


Proceeds”), to make
an offer to purchase Notes and (to the extent the Company or such Restricted
Subsidiary elects, or is required by the terms thereof) to purchase, redeem or
repay any other Senior Indebtedness of the Company or a Restricted Subsidiary, pursuant
and subject to Section 411(b) and Section 411(c) and
the agreements governing such other Indebtedness; and


 


(C)           third, to the extent of the balance of such Net
Available Cash after application in accordance with clauses (A) and (B) above, to fund (to the extent
consistent with any other applicable provision of this Indenture) any general
corporate purpose (including but not limited to the repurchase, repayment or
other acquisition or retirement of any Subordinated Obligations);


 


provided, however, that in connection with
any prepayment, repayment or purchase of Indebtedness pursuant to clause (A)(x) or (B) above, the Company or such Restricted Subsidiary
will retire such Indebtedness and will cause the related loan commitment (if
any) to be permanently reduced in an amount equal to the principal amount so
prepaid, repaid or purchased.


 


Notwithstanding the foregoing
provisions of this Section 411, the Company and the Restricted
Subsidiaries shall not be required to apply any Net Available Cash or equivalent
amount in accordance with this Section 411 except to the extent
that the aggregate Net Available Cash from all Asset Dispositions or equivalent
amount that is not applied in accordance with this Section 411
exceeds $50.0 million.  If the
aggregate principal amount of Notes and/or other Indebtedness of the Company or
a Restricted Subsidiary validly tendered and not withdrawn (or otherwise
subject to purchase, redemption or repayment) in connection with an offer
pursuant to clause (B) above
exceeds the Excess Proceeds, the Excess Proceeds will be apportioned between
such Notes and such other Indebtedness of the Company or a Restricted
Subsidiary, with the portion of the Excess Proceeds payable in respect of such
Notes to equal the lesser of (x) the
Excess Proceeds amount multiplied by a fraction, the numerator of which is the
outstanding principal amount of such Notes and the denominator of which is the
sum of the outstanding principal amount of the Notes and the outstanding
principal amount of the relevant other Indebtedness of the Company or a
Restricted Subsidiary, and (y) the
aggregate principal amount of Notes validly tendered and not withdrawn.


 


For the purposes of clause (ii) of paragraph (a) above,
the following are deemed to be cash:  (1) Temporary Cash Investments and Cash Equivalents, (2) the assumption of Indebtedness of the Company (other
than Disqualified Stock of the Company) or any Restricted Subsidiary and the
release of the Company or such Restricted Subsidiary from all liability on
payment of the principal amount of such Indebtedness in connection with such
Asset Disposition, (3) Indebtedness
of any Restricted Subsidiary that is no longer a Restricted Subsidiary as a
result of such Asset Disposition, to the extent that the Company and each other
Restricted Subsidiary are released from any Guarantee of payment of the
principal amount of such Indebtedness in connection with such Asset
Disposition, (4) securities received by
the Company or any Restricted Subsidiary from the transferee that are converted
by the Company or such Restricted Subsidiary into cash within 180 days, (5) consideration consisting of Indebtedness of the 


 


85

















 


Company or any Restricted
Subsidiary, (6) Additional Assets and (7) any Designated Noncash Consideration received by the
Company or any of its Restricted Subsidiaries in an Asset Disposition having an
aggregate Fair Market Value, taken together with all other Designated Noncash
Consideration received pursuant to this clause, not to exceed an aggregate
amount at any time outstanding equal to the greater of $125.0 million and
10.0% of Consolidated Tangible Assets (with the Fair Market Value of each item
of Designated Noncash Consideration being measured at the time received and
without giving effect to subsequent changes in value).


 


(b)           In the event of an
Asset Disposition that requires the purchase of Notes pursuant to Section 411(a)(iii)(B),
the Company will be required to purchase Notes tendered pursuant to an offer by
the Company for the Notes (the “Offer”) at a purchase price of 100% of
their principal amount plus accrued and unpaid interest to the date of purchase
in accordance with the procedures (including prorating in the event of
oversubscription) set forth in Section 411(c).  If the aggregate purchase price of the Notes
tendered pursuant to the Offer is less than the Net Available Cash allotted to
the purchase of Notes, the remaining Net Available Cash will be available to
the Company for use in accordance with Section 411(a)(iii)(B) (to
repay other Indebtedness of the Company or a Restricted Subsidiary) or Section 411(a)(iii)(C).  The Company shall not be required to make an
Offer for Notes pursuant to this Section 411 if the Net Available
Cash available therefor (after application of the proceeds as provided in Section 411(a)(iii)(A))
is less than $50.0 million for any particular Asset Disposition (which
lesser amounts shall be carried forward for purposes of determining whether an
Offer is required with respect to the Net Available Cash from any subsequent
Asset Disposition).  No Note will be
repurchased in part if less than the Minimum Denomination in original principal
amount of such Note would be left outstanding.


 


(c)           The Company shall, not
later than 45 days after the Company becomes obligated to make an Offer
pursuant to this Section 411, mail a notice to each Holder with a
copy to the Trustee stating:  (1) that an Asset Disposition that requires the purchase
of a portion of the Notes has occurred and that such Holder has the right
(subject to the prorating described below) to require the Company to purchase a
portion of such Holder’s Notes at a purchase price in cash equal to 100% of the
principal amount thereof, plus
accrued and unpaid interest, if any, to the date of purchase (subject to Section 307);
(2) the circumstances and relevant
facts and financial information regarding such Asset Disposition; (3) the repurchase date (which shall be no earlier than
30 days nor later than 60 days from the date such notice is mailed); (4) the instructions determined by the Company,
consistent with this Section 411, that a Holder must follow in
order to have its Notes purchased; and (5) the
amount of the Offer.  If, upon the
expiration of the period for which the Offer remains open, the aggregate
principal amount of Notes surrendered by Holder exceeds the amount of the
Offer, the Company shall select the Notes to be purchased on a pro rata basis (with such adjustments as
may be deemed appropriate by the Company so that only Notes in denominations of
the Minimum Denomination or integral multiples of $1.00 in excess thereof shall
be purchased).


 


(d)           The Company will
comply, to the extent applicable, with the requirements of Section 14(e) of
the Exchange Act and any other securities laws or regulations in connection 


 


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with the repurchase of Notes
pursuant to this Section 411. 
To the extent that the provisions of any securities laws or regulations
conflict with provisions of this Section 411, the Company will
comply with the applicable securities laws and regulations and will not be
deemed to have breached its obligations under this Section 411 by
virtue thereof.


 


Section 412.           Limitation on
Transactions with Affiliates.


 


(a)           The Company will not,
and will not permit any Restricted Subsidiary to, directly or indirectly, enter
into or conduct any transaction or series of related transactions (including
the purchase, sale, lease or exchange of any property or the rendering of any
service) with any Affiliate of the Company (an “Affiliate Transaction”)
involving aggregate consideration in excess of $10.0 million unless (i) the terms of such Affiliate Transaction are not
materially less favorable to the Company or such Restricted Subsidiary, as the
case may be, than those that could be obtained at the time in a transaction
with a Person who is not such an Affiliate and (ii) if
such Affiliate Transaction involves aggregate consideration in excess of
$40.0 million, the terms of such Affiliate Transaction have been approved
by a majority of the Board of Directors. 
For purposes of this Section 412(a), any Affiliate
Transaction shall be deemed to have satisfied the requirements set forth in
this Section 412(a) if (x) such
Affiliate Transaction is approved by a majority of the Disinterested Directors
or (y) in the event there are no
Disinterested Directors, a fairness opinion is provided by a nationally
recognized appraisal or investment banking firm with respect to such Affiliate
Transaction.


 


(b)           The provisions of Section 412(a) will
not apply to:


 


(i)            any Restricted Payment Transaction,


 


(ii)           (1) the
entering into, maintaining or performance of any employment or consulting
contract, collective bargaining agreement, benefit plan, program or
arrangement, related trust agreement or any other similar arrangement for or
with any current or former employee, officer, director or consultant of or to
the Company, any Restricted Subsidiary or any Parent heretofore or hereafter
entered into in the ordinary course of business, including vacation, health,
insurance, deferred compensation, severance, retirement, savings or other
similar plans, programs or arrangements, (2) payments,
compensation, performance of indemnification or contribution obligations, the
making or cancellation of loans or any issuance, grant or award of stock,
options, other equity-related interests or other securities, to any such
employees, officers, directors or consultants in the ordinary course of
business, (3) the payment of
reasonable fees to directors of the Company or any of its Subsidiaries or any
Parent (as determined in good faith by the Company or such Subsidiary), (4) any transaction with an officer or
director of the Company or any of its Subsidiaries or any Parent in the
ordinary course of business not involving more than $100,000 in any one case,
or (5) Management Advances
and payments in respect thereof (or in reimbursement of any expenses referred
to in the definition of such term),


 


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(iii)          any transaction between or among any of the
Company, one or more Restricted Subsidiaries, and/or one or more Special
Purpose Entities,


 


(iv)          any transaction arising out of agreements or
instruments in existence on the Closing Date (other than any Tax Sharing
Agreement or Management Agreement referred to in Section 412(b)(vii)),
and any payments made pursuant thereto,


 


(v)           any
transaction in the ordinary course of business on terms that are fair to the
Company and its Restricted Subsidiaries in the reasonable determination of the
Board of Directors or senior management of the Company, or are not materially
less favorable to the Company or the relevant Restricted Subsidiary than those
that could be obtained at the time in a transaction with a Person who is not an
Affiliate of the Company,


 


(vi)          any transaction in the ordinary course of
business, or approved by a majority of the Board of Directors, between the
Company or any Restricted Subsidiary and any Affiliate of the Company controlled
by the Company that is a joint venture or similar entity,


 


(vii)         (1) the
execution, delivery and performance of any Tax Sharing Agreement and any
Management Agreements, and (2) payments
to CD&R or any of its Affiliates (w) of
fees of up to $55.0 million in the aggregate, plus out-of-pocket expenses,
in connection with the Transactions, (x) for
any management consulting, financial advisory, financing, underwriting or
placement services or in respect of other investment banking activities, of up
to $7.5 million in any fiscal year (or such other amount as may be approved by
a majority of the Disinterested Directors), (y) in
connection with any acquisition, disposition, merger, recapitalization or
similar transactions, which payments are made pursuant to the Management
Agreements or are approved by a majority of the Board of Directors in good
faith, and (z) of all
out-of-pocket expenses incurred in connection with such services or activities,


 


(viii)        the Transactions, all transactions in
connection therewith (including but not limited to the financing thereof), and
all fees and expenses paid or payable in connection with the Transactions,


 


(ix)           any issuance or sale of Capital Stock (other
than Disqualified Stock) of the Company or any capital contribution to the
Company, and


 


(x)            any
investment by any Investor in securities of the Company or any of its
Restricted Subsidiaries so long as (i) such
securities are being offered generally to other investors on the same or more
favorable terms and (ii) such
investment by all Investors constitutes less than 5% of the proposed or
outstanding issue amount of such class of securities.


 


Section 413.           Limitation on Liens.  The Company shall not, and shall not permit
any Restricted Subsidiary to, directly or indirectly, create or permit to exist
any Lien (other than 


 


88

















 


Permitted Liens) on any of its property or
assets (including Capital Stock of any other Person), whether owned on the date
of this Indenture or thereafter acquired, securing any Indebtedness (the “Initial
Lien”), unless contemporaneously therewith effective provision is made to
secure the Indebtedness due under this Indenture and the Notes or, in respect
of Liens on any Restricted Subsidiary’s property or assets, any Subsidiary
Guarantee of such Restricted Subsidiary, equally and ratably with (or on a
senior basis to, in the case of Subordinated Obligations or Guarantor
Subordinated Obligations) such obligation for so long as such obligation is so
secured by such Initial Lien.  Any such
Lien thereby created in favor of the Notes or any such Subsidiary Guarantee
will be automatically and unconditionally released and discharged upon (i) the release and discharge of the
Initial Lien to which it relates, (ii) in
the case of any such Lien in favor of any such Subsidiary Guarantee, upon the
termination and discharge of such Subsidiary Guarantee in accordance with the
terms of Section 1303 or (iii) any
sale, exchange or transfer (other than a transfer constituting a transfer of
all or substantially all of the assets of the Company that is governed by Section 501)
to any Person not an Affiliate of the Company of the property or assets secured
by such Initial Lien, or of all of the Capital Stock held by the Company or any
Restricted Subsidiary in, or all or substantially all the assets of, any
Restricted Subsidiary creating such Initial Lien.


 


Section 414.           Future Subsidiary
Guarantors.  From and after the Issue Date, the Company
will cause each Domestic Subsidiary that guarantees (x) payment of any Indebtedness of the Company or any
Subsidiary Guarantor under any Credit Facility and that is a Wholly Owned
Domestic Subsidiary or (y) Capital
Markets Securities, to execute and deliver to the Trustee within 30 days a
supplemental indenture or other instrument pursuant to which such Domestic
Subsidiary will guarantee payment of the Notes, whereupon such Domestic
Subsidiary will become a Subsidiary Guarantor for all purposes under this
Indenture.  In addition, the Company may
cause any Subsidiary that is not a Subsidiary Guarantor so to guarantee payment
of the Notes and become a Subsidiary Guarantor.


 


Section 415.           Purchase of Notes
Upon a Change of Control.


 


(a)           Upon the occurrence
after the Issue Date of a Change of Control, each Holder of Notes will have the
right to require the Company to repurchase all or any part of such Notes at a
purchase price in cash equal to 101% of the principal amount thereof, plus
accrued and unpaid interest, if any, to the date of repurchase (subject to the
right of Holders of record on the Relevant Regular Record Date to receive
interest due on the relevant Interest Payment Date pursuant to Section 307);
provided, however, that the Company shall not be
obligated to repurchase Notes pursuant to this Section 415 in the
event that it has exercised its right to redeem all of the Notes as provided in
Article X.


 


(b)           In the event that, at
the time of such Change of Control, the terms of any Bank Indebtedness
constituting Designated Senior Indebtedness restrict or prohibit the repurchase
of the Notes pursuant to this Section 415, then prior to the
mailing of the notice to Holders provided for in Section 415(c) but
in any event not later than 30 days following the date the Company obtains
actual knowledge of any Change of Control (unless the Company has 


 


89

















 


exercised its right to redeem
all the Notes as provided in Article X), the Company shall, or
shall cause one or more of its Subsidiaries to, (i) repay
in full all such Bank Indebtedness subject to such terms or offer to repay in
full all such Bank Indebtedness and repay the Bank Indebtedness of each lender
who has accepted such offer or (ii) obtain
the requisite consent under the agreements governing such Bank Indebtedness to
permit the repurchase of the Notes as provided for in Section 415(c).
The Company shall first comply with the provisions of the immediately preceding
sentence before it shall be required to repurchase Notes pursuant to the
provisions set forth in this Section 415. The Company’s failure to
comply with the provisions of this Section 415(b) or Section 415(c) shall
constitute an Event of Default described in Section 601(iv) and
not in Section 601(ii).


 


(c)           Unless the Company has
exercised its right to redeem all the Notes as described in Article X,
the Company shall, not later than 30 days following the date the Company
obtains actual knowledge of any Change of Control having occurred, mail a
notice (a “Change of Control Offer”) to each Holder with a copy to the
Trustee stating:  (1) that
a Change of Control has occurred or may occur and that such Holder has, or upon
such occurrence will have, the right to require the Company to purchase such
Holder’s Notes at a purchase price in cash equal to 101% of the principal
amount thereof, plus accrued and unpaid interest, if any, to the date of
purchase (subject to the right of Holders of record on a record date to receive
interest on the relevant interest payment date); (2) the
repurchase date (which shall be no earlier than 30 days nor later than 60 days
from the date such notice is mailed); (3) the
instructions determined by the Company, consistent with this Section 415,
that a Holder must follow in order to have its Notes purchased; and (4) if such notice is mailed prior to the occurrence of
a Change of Control, that such offer is conditioned on the occurrence of such
Change of Control.  No Note will be
repurchased in part if less than the Minimum Denomination in original principal
amount of such Note would be left outstanding.


 


(d)           The Company will not be
required to make a Change of Control Offer upon a Change of Control if a third
party makes the Change of Control Offer in the manner, at the times and
otherwise in compliance with the requirements set forth in the Indenture
applicable to a Change of Control Offer made by the Company and purchases all
Notes validly tendered and not withdrawn under such Change of Control Offer.


 


(e)           The Company will
comply, to the extent applicable, with the requirements of Section 14(e) of
the Exchange Act and any other securities laws or regulations in connection
with the repurchase of Notes pursuant to this Section 415.  To the extent that the provisions of any
securities laws or regulations conflict with provisions of this Section 415,
the Company will comply with the applicable securities laws and regulations and
will not be deemed to have breached its obligations under this Section 415
by virtue thereof.


 


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ARTICLE V



SUCCESSORS


 


Section 501.           When the Company May Merge,
etc.


 


(a)           The Company will not
consolidate with or merge with or into, or convey, transfer or lease all or
substantially all its assets to, any Person, unless:


 


(i)            the resulting,
surviving or transferee Person (the “Successor Company”) will be a
Person organized and existing under the laws of the United States of America,
any State thereof or the District of Columbia and the Successor Company (if not
the Company) will expressly assume all the obligations of the Company under the
Notes and this Indenture by executing and delivering to the Trustee a
supplemental indenture or one or more other documents or instruments in form
reasonably satisfactory to the Trustee;


 


(ii)           immediately after
giving effect to such transaction (and treating any Indebtedness that becomes
an obligation of the Successor Company or any Restricted Subsidiary as a result
of such transaction as having been Incurred by the Successor Company or such
Restricted Subsidiary at the time of such transaction), no Default will have
occurred and be continuing;


 


(iii)          immediately after giving
effect to such transaction, either (A) the
Company (or, if applicable, the Successor Company with respect thereto) could
Incur at least $1.00 of additional Indebtedness pursuant to Section 407(a) or
(B) the Consolidated Coverage Ratio
of the Company (or, if applicable, the Successor Company with respect thereto)
would equal or exceed the Consolidated Coverage Ratio of the Company
immediately prior to giving effect to such transaction;


 


(iv)          each Subsidiary
Guarantor (other than (x) any
Subsidiary Guarantor that will be released from its obligations under its
Subsidiary Guarantee in connection with such transaction and (y) any party to any such consolidation or merger) shall
have delivered a supplemental indenture or other document or instrument in form
reasonably satisfactory to the Trustee, confirming its Subsidiary Guarantee
(other than any Subsidiary Guarantee that will be discharged or terminated in
connection with such transaction); and


 


(v)           the Company will have
delivered to the Trustee an Officer’s Certificate and an Opinion of Counsel,
each to the effect that such consolidation, merger or transfer complies with
the provisions described in this paragraph, provided that (x) in giving
such opinion such counsel may rely on an Officer’s Certificate as to compliance
with the foregoing clauses (ii) and (iii) and as to any matters of fact, and (y) no Opinion of Counsel will be required for a
consolidation, merger or transfer described in Section 501(b).


 


Any Indebtedness that becomes an obligation of the Successor Company or
any Restricted Subsidiary (or that is deemed to be Incurred by any Restricted
Subsidiary that becomes a Restricted Subsidiary) as a result of any such
transaction undertaken in compliance with this Section 501, and any
Refinancing Indebtedness with respect thereto, shall be deemed to have been
Incurred in compliance with Section 407.


 


(b)           Clauses (ii) and (iii) of Section 501(a) will
not apply to any transaction in which the Company consolidates or merges with
or into or transfers all or substantially all its 


 


91

















 


properties and assets to (x) an Affiliate incorporated or organized for the
purpose of reincorporating or reorganizing the Company in another jurisdiction
or changing its legal structure to a corporation or other entity or (y) a Restricted Subsidiary of the Company so long as
all assets of the Company and the Restricted Subsidiaries immediately prior to
such transaction (other than Capital Stock of such Restricted Subsidiary) are
owned by such Restricted Subsidiary and its Restricted Subsidiaries immediately
after the consummation thereof.  Section 501(a) will
not apply to any transaction in which any Restricted Subsidiary consolidates
with, merges into or transfers all or part of its assets to the Company.


 


Section 502.           Successor Company
Substituted.  Upon any transaction
involving the Company in accordance with Section 501 in which the Company
is not the Successor Company, the Successor Company will succeed to, and be
substituted for, and may exercise every right and power of, the Company under
this Indenture, and thereafter the predecessor Company shall be relieved of all
obligations and covenants under this Indenture, except that the predecessor
Company in the case of a lease of all or substantially all its assets shall not
be released from the obligation to pay the principal of and interest on the
Notes.


 


ARTICLE VI



REMEDIES


 


Section 601.           Events of Default.  An “Event of Default” means the
occurrence of the following:


 


(i)            a default in any
payment of interest on any Note when due, continued for a period of 30 days;


 


(ii)           a default in the
payment of principal of any Note when due, whether at its Stated Maturity, upon
optional redemption, upon required repurchase, upon declaration of acceleration
or otherwise;


 


(iii)          the failure by the
Company to comply with its obligations under Section 501(a);


 


(iv)          the failure by the
Company to comply for 30 days after the notice specified in the penultimate
paragraph of this Section 601 with any of its obligations under Section 415
(other than a failure to purchase the Notes);


 


(v)           the failure by the
Company to comply for 60 days after the notice specified in the penultimate
paragraph of this Section 601 with its other agreements contained
in the Notes or this Indenture;


 


(vi)          the failure by any
Subsidiary Guarantor to comply for 45 days after the notice specified in the
penultimate paragraph of this Section 601 with its obligations
under its Subsidiary Guarantee;


 


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(vii)         the failure by the
Company or any Restricted Subsidiary to pay any Indebtedness for borrowed money
(other than Indebtedness owed to the Company or any Restricted Subsidiary)
within any applicable grace period after final maturity or the acceleration of
any such Indebtedness by the holders thereof because of a default, if the total
amount of such Indebtedness so unpaid or accelerated exceeds $50.0 million
or its foreign currency equivalent; provided, that no Default or Event of Default will
be deemed to occur with respect to any such Indebtedness that is paid or
otherwise acquired or retired (or for which such failure to pay or acceleration
is waived or rescinded) within 20 Business Days after such failure to pay or
such acceleration;


 


(viii)        the taking of any of the
following actions by the Company or a Significant Subsidiary, pursuant to or
within the meaning of any Bankruptcy Law:


 


(A)  the
commencement of a voluntary case;


 


(B)  the
consent to the entry of an order for relief against it in an involuntary case;


 


(C)  the
consent to the appointment of a Custodian of it or for any substantial part of
its property; or


 


(D)  the
making of a general assignment for the benefit of its creditors;


 


(ix)           a court of competent
jurisdiction enters an order or decree under any Bankruptcy Law that:


 


(A)  is for
relief against the Company or any Significant Subsidiary in an involuntary
case;


 


(B)  appoints
a Custodian of the Company or any Significant Subsidiary or for any substantial
part of its property; or


 


(C)  orders
the winding up or liquidation of the Company or any Significant Subsidiary;


 


and the order or decree remains unstayed and in effect for 60 days;


 


(x)            the rendering of any
judgment or decree for the payment of money in an amount (net of any insurance
or indemnity payments actually received in respect thereof prior to or within
90 days from the entry thereof, or to be received in respect thereof in the
event any appeal thereof shall be unsuccessful) in excess of $50.0 million
or its foreign currency equivalent against the Company or a Significant
Subsidiary, that is not discharged, or bonded or insured by a third Person, if
such judgment or decree remains outstanding for a period of 90 days following
such judgment or decree and is not discharged, waived or stayed; or


 


93

















 


(xi)           the failure of any
Subsidiary Guarantee by a Subsidiary Guarantor that is a Significant Subsidiary
to be in full force and effect (except as contemplated by the terms thereof or
of this Indenture) or the denial or disaffirmation in writing by any Subsidiary
Guarantor that is a Significant Subsidiary of its obligations under this
Indenture or its Subsidiary Guarantee, if such Default continues for 10 days.


 


The foregoing will constitute Events of Default whatever the reason for
any such Event of Default and whether it is voluntary or involuntary or is
effected by operation of law or pursuant to any judgment, decree or order of
any court or any order, rule or regulation of any administrative or
governmental body.


 


The term “Bankruptcy Law” means Title 11, United States Code, or
any similar Federal, state or foreign law for the relief of debtors.  The term “Custodian” means any
receiver, trustee, assignee, liquidator, custodian or similar official under
any Bankruptcy Law.


 


However, a Default under clause (iv),
(v) or (vi) will
not constitute an Event of Default until the Trustee or the Holders of at least
30% in principal amount of the Outstanding Notes notify the Company of the
Default and the Company does not cure such Default within the time specified in
such clause after receipt of such notice. 
Such notice must specify the Default, demand that it be remedied and
state that such notice is a “Notice of Default.”  When a Default or an Event of Default is
cured, it ceases.


 


The Company shall deliver to the Trustee, within 30 days after the
occurrence thereof, written notice in the form of an Officer’s Certificate of
any Event of Default under clause (vii), (x) or (xi) and any
event that with the giving of notice or the lapse of time would become an Event
of Default under clause (iv), (v) or (vi), its status
and what action the Company is taking or proposes to take with respect thereto.


 


Section 602.           Acceleration of
Maturity; Rescission and Annulment. 
If an Event of Default (other than an Event of Default specified in Section 601(viii) or
Section 601(ix), with respect to the Company), occurs and is
continuing, the Trustee by notice to the Company, or the Holders of at least
thirty percent (30%) in principal amount of the Outstanding Notes by notice to
the Company and the Trustee, in either case specifying in such notice the
respective Event of Default and that such notice is a “notice of acceleration,”
may declare the principal of and accrued but unpaid interest on all the Notes
to be due and payable. Upon the effectiveness of such a declaration, such
principal and interest will be due and payable immediately.


 


Notwithstanding the foregoing, if an Event of Default specified in Section 601(viii) or
Section 601(ix), with respect to the Company, occurs and is
continuing, the principal of and accrued interest on all the Outstanding Notes
will ipso facto become
immediately due and payable without any declaration or other act on the part of
the Trustee or any Holder.


 


The Holders of a majority in principal amount of the Outstanding Notes
by notice to the Company and the Trustee may rescind an acceleration and its
consequences if the rescission would not conflict with any judgment or decree
and if all existing Events of Default have been


 


94
















 


cured or waived except non-payment of principal or
interest that has become due solely because of such acceleration.  No such rescission shall affect any
subsequent Default or impair any right consequent thereto.


 


Section 603.           Other Remedies;
Collection Suit by Trustee.  If an
Event of Default occurs and is continuing, the Trustee may, but is not
obligated under this Section 603 to, pursue any available remedy to
collect the payment of principal of or interest on the Notes or to enforce the
performance of any provision of the Notes or this Indenture.  If an Event of Default specified in Section 601(i) or
601(ii) occurs and is continuing, the Trustee may recover judgment
in its own name and as trustee of an express trust against the Company for the
whole amount then due and owing (together with interest on any unpaid interest
to the extent lawful) and the amounts provided for in Section 707.


 


Section 604.           Trustee May File
Proofs of Claim.  The Trustee may
file such proofs of claim and other papers or documents as may be necessary or
advisable in order to have the claims of the Trustee and the Holders allowed in
any judicial proceedings relative to the Company or any other obligor upon the
Notes, its creditors or its property and, unless prohibited by law or applicable
regulations, may vote on behalf of the Holders in any election of a trustee in
bankruptcy or other Person performing similar functions, and any Custodian in
any such judicial proceeding is hereby authorized by each Holder to make
payments to the Trustee and, in the event that the Trustee shall consent to the
making of such payments directly to the Holders, to pay to the Trustee any
amount due it for the reasonable compensation, expenses, disbursements and
advances of the Trustee, its agents and its counsel, and any other amounts due
the Trustee under Section 707.


 


No provision of this Indenture shall be deemed to authorize the Trustee
to authorize or consent to or accept or adopt on behalf of any Holder any plan
of reorganization, arrangement, adjustment or composition affecting the Notes
or the rights of any Holder thereof or to authorize the Trustee to vote in
respect of the claim of any Holder in any such proceeding.


 


Section 605.           Trustee May Enforce
Claims Without Possession of Notes. 
All rights of action and claims under this Indenture or the Notes may be
prosecuted and enforced by the Trustee without the possession of any of the
Notes or the production thereof in any proceeding relating thereto, and any
such proceeding instituted by the Trustee shall be brought in its own name as
trustee of an express trust, and any recovery of judgment shall, after
provision for the payment of the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel, be for the ratable
benefit of the Holders of the Notes in respect of which such judgment has been
recovered.


 


Section 606.           Application of Money
Collected.  Any money collected by
the Trustee pursuant to this Article VI shall be applied in the
following order, at the date or dates fixed by the Trustee and, in case of the
distribution of such money on account of principal (or premium, if any) or
interest, upon presentation of the Notes and the notation thereon of the
payment if only partially paid and upon surrender thereof if fully paid:


 


95

















 


First:  to the payment of all amounts due the Trustee
under Section 707;


 


Second:  to the payment of the amounts then due and
unpaid upon the Notes for principal (and premium, if any) and interest, in
respect of which or for the benefit of which such money has been collected,
ratably, without preference or priority of any kind, according to the amounts
due and payable on such Notes for principal (and premium, if any) and interest,
respectively; and


 


Third:  to the Company.


 


Section 607.           Limitation on Suits.  Subject to Section 608 hereof, no
Holder may pursue any remedy with respect to this Indenture or the Notes
unless:


 


(i)            such Holder has previously given the
Trustee written notice that an Event of Default is continuing;


 


(ii)           Holders of at least 30% in principal amount
of the Outstanding Notes have requested the Trustee in writing to pursue the
remedy;


 


(iii)          such Holder or Holders have offered to the
Trustee security or indemnity reasonably satisfactory to it against any loss,
liability or expense;


 


(iv)          the Trustee has not complied with the request
within 60 days after receipt of the request and the offer of security or
indemnity; and


 


(v)           the Holders of a majority in principal amount
of the Outstanding Notes have not given the Trustee a direction inconsistent
with the request within such 60-day period.


 


A Holder may not use this Indenture to affect, disturb or prejudice the
rights of another Holder, to obtain a preference or priority over another
Holder or to enforce any right under this Indenture except in the manner herein
provided and for the equal and ratable benefit of all Holders.


 


Section 608.           Unconditional Right
of Holders to Receive Principal and Interest.  Notwithstanding any other provision in this
Indenture, the Holder of any Note shall have the absolute and unconditional
right to receive payment of the principal of (and premium, if any) and all
(subject to Section 307) interest on such Note on the respective
Stated Maturity or Interest Payment Dates expressed in such Note and to
institute suit for the enforcement of any such payment on or after such
respective Stated Maturity or Interest Payment Dates, and such right shall not
be impaired without the consent of such Holder.


 


Section 609.           Restoration of
Rights and Remedies.  If the Trustee
or any Holder has instituted any proceeding to enforce any right or remedy
under this Indenture or any Note and such proceeding has been discontinued or
abandoned for any reason, or has been determined 


 


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adversely to the Trustee or to such Holder,
then and in every such case the Company, any other obligor upon the Notes, the
Trustee and the Holders shall, subject to any determination in such proceeding,
be restored severally and respectively to their former positions hereunder, and
thereafter all rights and remedies of the Trustee and the Holders shall
continue as though no such proceeding had been instituted.


 


Section 610.           Rights and Remedies
Cumulative.  No right or remedy
herein conferred upon or reserved to the Trustee or to the Holders is intended
to be exclusive of any other right or remedy, and every right and remedy shall,
to the extent permitted by law, be cumulative and in addition to every other
right and remedy given hereunder or now or hereafter existing at law or in
equity or otherwise.  The assertion or
employment of any right or remedy hereunder, or otherwise, shall not prevent
the concurrent assertion or employment of any other appropriate right or
remedy.


 


Section 611.           Delay or Omission
Not Waiver.  No delay or omission of
the Trustee or of any Holder of any Note to exercise any right or remedy
accruing upon any Event of Default shall impair any such right or remedy or
constitute a waiver of any such Event of Default or an acquiescence
therein.  Every right and remedy given by
this Article VI or by law to the Trustee or to the Holders may be
exercised from time to time, and as often as may be deemed expedient, by the
Trustee or by the Holders, as the case may be.


 


Section 612.           Control by Holders.  The Holders of not less than a majority in
aggregate principal amount of the Outstanding Notes shall have the right to
direct the time, method and place of conducting any proceeding for any remedy
available to the Trustee or of exercising any trust or power conferred on the
Trustee, provided that


 


(1)           such direction shall not be in conflict with
any rule of law or with this Indenture, and


 


(2)           the Trustee may take any other action deemed
proper by the Trustee which is not inconsistent with such direction.


 


However, the Trustee may refuse to follow any direction that conflicts
with law or this Indenture or, subject to Section 701, that the
Trustee determines is unduly prejudicial to the rights of any other Holder or
that would involve the Trustee in personal liability; provided, however,
that the Trustee may take any other action deemed proper by the Trustee that is
not inconsistent with such direction. 
Prior to taking any action under this Indenture, the Trustee shall be
entitled to indemnification satisfactory to it in its sole discretion against
all losses and expenses caused by taking or not taking such action.  This Section 612 shall be in lieu
of § 316(a)(1)(A) of the TIA, and such § 316(a)(1)(A) of
the TIA is hereby expressly excluded from this Indenture and the Notes, as
permitted by the TIA.


 


Section 613.           Waiver of Past
Defaults.  The Holders of not less
than a majority in aggregate principal amount of the Outstanding Notes may on
behalf of the Holders of all the Notes waive any past Default hereunder and its
consequences, except a Default


 


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(1)           in the payment of the principal of or
interest on any Note (which may only be waived with the consent of each Holder
of Notes affected), or


 


(2)           in respect of a covenant or provision hereof
that pursuant to the second paragraph of Section 902 cannot be
modified or amended without the consent of the Holder of each Outstanding Note
affected.


 


Upon any such waiver, such Default shall cease to exist, and any Event
of Default arising therefrom shall be deemed to have been cured, for every
purpose of this Indenture; but no such waiver shall extend to any subsequent or
other Default or Event of Default or impair any right consequent thereon.  In case of any such waiver, the Company, any
other obligor upon the Notes, the Trustee and the Holders shall be restored to
their former positions and rights hereunder and under the Notes,
respectively.  This paragraph of this Section 613
shall be in lieu of § 316(a)(1)(B) of the TIA and such § 316(a)(1)(B) of
the TIA is hereby expressly excluded from this Indenture and the Notes, as
permitted by the TIA.


 


Section 614.           Undertaking for
Costs.  All parties to this Indenture
agree, and each Holder of any Note by such Holder’s acceptance thereof shall be
deemed to have agreed, that any court may in its discretion require, in any
suit for the enforcement of any right or remedy under this Indenture or the
Notes, or in any suit against the Trustee for any action taken, suffered or
omitted by it as Trustee, the filing by any party litigant in such suit of an
undertaking to pay the costs of such suit, and that such court may in its
discretion assess reasonable costs, including reasonable attorneys’ fees,
against any party litigant in such suit, having due regard to the merits and
good faith of the claims or defenses made by such party litigant.  This Section 614 shall not apply
to any suit instituted by the Trustee, to any suit instituted by any Holder, or
group of Holders, holding in the aggregate more than 10% in principal amount of
the Outstanding Notes, or to any suit instituted by any Holder for the
enforcement of the payment of the principal of (or premium, if any) or interest
on any Note on or after the respective Stated Maturity or Interest Payment
Dates expressed in such Note.


 


Section 615.           Waiver of Stay,
Extension or Usury Laws.  The Company
agrees (to the extent that it may lawfully do so) that it shall not at any time
insist upon, or plead, or in any manner whatsoever claim or take the benefit or
advantage of, any stay or extension law or any usury or other similar law
wherever enacted, now or at any time hereafter in force, that would prohibit or
forgive the Company from paying all or any portion of the principal of (or
premium, if any) or interest on the Notes contemplated herein or in the Notes
or that may affect the covenants or the performance of this Indenture; and the
Company (to the extent that it may lawfully do so) hereby expressly waives all
benefit or advantage of any such law, and shall not hinder, delay or impede the
execution of any power herein granted to the Trustee, but will suffer and
permit the execution of every such power as though no such law had been
enacted.


 


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ARTICLE VII



THE TRUSTEE


 


Section 701.           Certain Duties and
Responsibilities.


 


(a)           Except during the
continuance of an Event of Default,


 


(1)           the Trustee undertakes to perform such
duties and only such duties as are specifically set forth in this Indenture,
and no implied covenants or obligations shall be read into this Indenture
against the Trustee; and


 


(2)           in the absence of bad faith on its part, the
Trustee may conclusively rely, as to the truth of the statements and the
correctness of the opinions expressed therein, upon certificates or opinions
furnished to the Trustee and conforming to the requirements of this Indenture;
but in the case of any such certificates or opinions that by any provision
hereof are specifically required to be furnished to the Trustee, the Trustee
shall be under a duty to examine the same to determine whether or not they
conform to the requirements of this Indenture, but need not verify the contents
thereof.


 


(b)           In case an Event of
Default has occurred and is continuing, the Trustee shall exercise such of the
rights and powers vested in it by this Indenture, and use the same degree of
care and skill in their exercise, as a prudent person would exercise or use
under the circumstances in the conduct of such person’s own affairs.


 


(c)           No provision of this
Indenture shall be construed to relieve the Trustee from liability for its own
negligent action, its own negligent failure to act, or its own willful misconduct,
except that (i) this paragraph does not
limit the effect of Section 701(a); (ii) the
Trustee shall not be liable for any error of judgment made in good faith by a
Responsible Officer, unless it is proved that the Trustee was negligent in
ascertaining the pertinent facts; and (iii) the
Trustee shall not be liable with respect to any action it takes or omits to
take in good faith in accordance with a direction received by it pursuant to Section 612.


 


(d)           No provision of this
Indenture shall require the Trustee to expend or risk its own funds or
otherwise incur financial liability in the performance of any of its duties
hereunder or in the exercise of any of its rights or powers, if it shall have
reasonable grounds to believe that repayment of such funds or adequate
indemnity against such risk or liability is not reasonably assured to it.


 


(e)           Whether or not therein
expressly so provided, every provision of this Indenture relating to the
conduct or affecting the liability of or affording protection to the Trustee
shall be subject to the provisions of this Section 701 and Section 703.


 


Section 702.           Notice of Defaults.  If a Default occurs and is continuing and is
known to the Trustee, the Trustee must mail within 90 days after it occurs, to
all Holders as their 


 


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names and addresses appear in the Note
Register, notice of such Default hereunder known to the Trustee unless such
Default shall have been cured or waived; provided,
however, that,
except in the case of a Default in the payment of the principal of, or premium,
if any, or interest on any Note, the Trustee shall be protected in withholding
such notice if and so long as the board of directors, the executive committee
or a trust committee of Responsible Officers of the Trustee in good faith
determines that the withholding of such notice is in the interests of the
Holders.


 


Section 703.           Certain Rights of
Trustee.  Subject to the provisions
of Section 701:


 


(1)           the Trustee may rely and shall be protected
in acting or refraining from acting upon any resolution, certificate,
statement, instrument, opinion, report, notice, request, direction, consent,
order, bond, note, other evidence of indebtedness or other paper or document
believed by it to be genuine and to have been signed or presented by the proper
party or parties;


 


(2)           any request or direction of the Company
mentioned herein shall be sufficiently evidenced by a Company Request or
Company Order thereof, and any resolution of any Person’s board of directors
shall be sufficiently evidenced if certified by an Officer of such Person as
having been duly adopted and being in full force and effect on the date of such
certificate;


 


(3)           whenever in the administration of this
Indenture the Trustee shall deem it desirable that a matter be proved or
established prior to taking, suffering or omitting any action hereunder, the
Trustee (unless other evidence be herein specifically prescribed) may, in the
absence of bad faith on its part, rely upon an Officer’s Certificate of the
Company;


 


(4)           the Trustee may consult with counsel and the
written advice of such counsel or any Opinion of Counsel shall be full and
complete authorization and protection in respect of any action taken, suffered
or omitted by it hereunder in good faith and in reliance thereon;


 


(5)           the Trustee shall be under no obligation to
exercise any of the rights or powers vested in it by this Indenture at the
request or direction of any of the Holders pursuant to this Indenture, unless
such Holders shall have offered to the Trustee security or indemnity reasonably
satisfactory to it against the costs, expenses and liabilities which might be
incurred by it in compliance with such request or direction;


 


(6)           the Trustee shall not be bound to make any investigation
into the facts or matters stated in any resolution, certificate, statement,
instrument, opinion, report, notice, request, direction, consent, order, bond,
note, other evidence of indebtedness or other paper or document; and


 


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(7)           the Trustee may execute any of the trusts or
powers hereunder or perform any duties hereunder either directly or by or
through agents or attorneys and the Trustee shall not be responsible for any
misconduct or negligence on the part of any agent or attorney appointed with
due care by it hereunder.


 


Section 704.           Not Responsible for
Recitals or Issuance of Notes.  The
recitals contained herein and in the Notes, except the Trustee’s certificates
of authentication, shall be taken as the statements of the Company, and neither
the Trustee nor any Authenticating Agent assumes any responsibility for their
correctness.  The Trustee makes no
representations as to the validity or sufficiency of this Indenture or of the
Notes, except that the Trustee represents that it is duly authorized to execute
and deliver this Indenture, authenticate the Notes and perform its obligations
hereunder and that the statements made by it in a Statement of Eligibility and
Qualification on Form T-1 supplied to the Company and any other obligor
upon the Notes in connection with the registration of any Notes and any
Subsidiary Guarantees issued hereunder are and will be true and accurate
subject to the qualifications set forth therein.  Neither the Trustee nor any Authenticating
Agent shall be accountable for the use or application by the Company of the
Notes or the proceeds thereof.


 


Section 705.           May Hold Notes.  The Trustee, any Authenticating Agent, any
Paying Agent, any Note Registrar or any other agent of the Company, in its
individual or any other capacity, may become the owner or pledgee of Notes and,
subject to Section 708 and Section 713, may otherwise
deal with the Company or its Affiliates with the same rights it would have if
it were not Trustee, Authenticating Agent, Paying Agent, Note Registrar or such
other agent.


 


Section 706.           Money Held in Trust.  Money held by the Trustee in trust hereunder
need not be segregated from other funds except to the extent required by
law.  The Trustee shall be under no
liability for interest on any money received by it hereunder except as
otherwise agreed in writing with the Company.


 


Section 707.           Compensation and Reimbursement.  The Company agrees,


 


(1)           to pay to the Trustee from time to time
reasonable compensation for all services rendered by the Trustee hereunder
(which compensation shall not be limited by any provision of law in regard to
the compensation of a trustee of an express trust);


 


(2)           except as otherwise expressly provided
herein, to reimburse the Trustee upon its request for all reasonable
out-of-pocket expenses incurred by the Trustee in accordance with any provision
of this Indenture (including the reasonable compensation and the expenses and
disbursements of its agents and counsel), except any such expense, disbursement
or advance as may be attributable to its negligence or bad faith; and


 


(3)           to indemnify the Trustee for, and to hold it
harmless against, any loss, liability or expense incurred without negligence or
bad faith on the Trustee’s part, arising out of or in connection with the
administration of the trust or trusts hereunder, including 


 


101

















 


the costs and expenses of defending itself against any claim or
liability in connection with the exercise or performance of any of its powers
or duties hereunder.


 


The Company needs not pay for
any settlement made without its consent. 
The provisions of this Section 707 shall survive the
termination of this Indenture or the resignation and removal of the Trustee.


 


Section 708.           Conflicting
Interests.  If the Trustee has or
shall acquire a conflicting interest within the meaning of the TIA, the Trustee
shall eliminate such interest, apply to the SEC for permission to continue as
Trustee with such conflict or resign, to the extent and in the manner provided
by, and subject to the provisions of, the TIA and this Indenture.  To the extent permitted by the TIA, the
Trustee shall not be deemed to have a conflicting interest by virtue of being a
trustee under this Indenture with respect to Original Notes and Additional
Notes, or a trustee under any other indenture between the Company and the
Trustee.


 


Section 709.           Corporate Trustee
Required; Eligibility.  There shall
at all times be one (and only one) Trustee hereunder.  The Trustee shall be a Person that is
eligible pursuant to the TIA to act as such and has a combined capital and
surplus of at least $50,000,000.  If any
such Person publishes reports of condition at least annually, pursuant to law
or to the requirements of its supervising or examining authority, then for the
purposes of this Section 709 and to the extent permitted by the
TIA, the combined capital and surplus of such Person shall be deemed to be its
combined capital and surplus as set forth in its most recent report of
condition so published.  If at any time
the Trustee shall cease to be eligible in accordance with the provisions of
this Section 709, it shall resign immediately in the manner and
with the effect hereinafter specified in this Article.


 


Section 710.           Resignation and
Removal; Appointment of Successor. 
No resignation or removal of the Trustee and no appointment of a
successor Trustee pursuant to this Article shall become effective until
the acceptance of appointment by the successor Trustee in accordance with the
applicable requirements of Section 711.


 


The Trustee may resign at any time by giving written notice thereof to
the Company.  If the instrument of
acceptance by a successor Trustee required by Section 711 shall not
have been delivered to the Trustee within 30 days after the giving of such
notice of resignation, the resigning Trustee may petition any court of
competent jurisdiction for the appointment of a successor Trustee.


 


The Trustee may be removed at any time by Act of the Holders of a
majority in principal amount of the Outstanding Notes, delivered to the Trustee
and to the Company.


 


If at any time:


 


(1)           the Trustee shall fail to comply with Section 708
after written request therefor by the Company or by any Holder who has been a
bona fide Holder of a Note for at least six months, or


 


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(2)           the Trustee shall cease to be eligible under
Section 709 and shall fail to resign after written request therefor
by the Company or by any such Holder, or


 


(3)           the Trustee shall become incapable of acting
or shall be adjudged bankrupt or insolvent or a receiver of the Trustee or of
its property shall be appointed or any public officer shall take charge or
control of the Trustee or of its property or affairs for the purpose of
rehabilitation, conservation or liquidation,


 


then, in any such case, (A) the Company may remove the Trustee, or (B) subject to Section 614, any Holder who
has been a bona fide Holder of a Note for at least six months may, on behalf of
itself and all others similarly situated, petition any court of competent
jurisdiction for the removal of the Trustee and the appointment of a successor
Trustee or Trustees.


 


If the Trustee shall resign, be removed or become incapable of acting,
or if a vacancy shall occur in the office of Trustee for any cause, the Company
shall promptly appoint a successor Trustee and shall comply with the applicable
requirements of Section 711. 
If, within one year after such resignation, removal or incapability, or
the occurrence of such vacancy, a successor Trustee shall be appointed by Act
of the Holders of a majority in principal amount of the Outstanding Notes
delivered to the Company and the retiring Trustee, the successor Trustee so
appointed shall, forthwith upon its acceptance of such appointment in
accordance with the applicable requirements of Section 711, become
the successor Trustee and to that extent supersede the successor Trustee
appointed by the Company.  If no
successor Trustee shall have been so appointed by the Company or the Holders
and accepted appointment in the manner required by Section 711,
then, subject to Section 614, any Holder who has been a bona fide
Holder of a Note for at least six months may, on behalf of itself and all others
similarly situated, petition any court of competent jurisdiction for the
appointment of a successor Trustee.


 


The Company shall give notice of each resignation and each removal of
the Trustee and each appointment of a successor Trustee to all Holders in the
manner provided in Section 110. 
Each notice shall include the name of the successor Trustee and the
address of its Corporate Trust Office.


 


Section 711.           Acceptance of
Appointment by Successor.  In case of
the appointment hereunder of a successor Trustee, every such successor Trustee
so appointed shall execute, acknowledge and deliver to the Company and to the
retiring Trustee an instrument accepting such appointment, and thereupon the
resignation or removal of the retiring Trustee shall become effective and such
successor Trustee, without any further act, deed or conveyance, shall become
vested with all the rights, powers, trusts and duties of the retiring Trustee;
but, on the request of the Company or the successor Trustee, such retiring
Trustee shall, upon payment of its charges, execute and deliver an instrument
transferring to such successor Trustee all the rights, powers and trusts of the
retiring Trustee and shall duly assign, transfer and deliver to such successor
Trustee all property and money held by such retiring Trustee hereunder.


 


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Upon request of any such successor Trustee, the Company shall execute
any and all instruments for more fully and certainly vesting in and confirming
to such successor Trustee all such rights, powers and trusts referred to above.


 


No successor Trustee shall accept its appointment unless at the time of
such acceptance such successor Trustee shall be qualified and eligible under
this Article VII.


 


Section 712.           Merger, Conversion,
Consolidation or Succession to Business. 
Any corporation into which the Trustee may be merged or converted or
with which it may be consolidated, or any corporation resulting from any
merger, conversion or consolidation to which the Trustee shall be a party, or
any corporation succeeding to all or substantially all the corporate trust
business of the Trustee, shall be the successor of the Trustee hereunder, provided such corporation shall be otherwise qualified and
eligible under this Article VII, without the execution or filing of
any paper or any further act on the part of any of the parties hereto.  In case any Notes shall have been
authenticated, but not delivered, by the Trustee then in office, any successor
by merger, conversion or consolidation to such authenticating Trustee may adopt
such authentication and deliver the Notes so authenticated with the same effect
as if such successor Trustee had itself authenticated such Notes.


 


Section 713.           Preferential
Collection of Claims Against the Company. 
If and when the Trustee shall be or become a creditor of the Company (or
any other obligor upon the Notes), the Trustee shall be subject to the
provisions of the TIA regarding the collection of claims against the Company
(or any such other obligor) or realizing on certain property received by it in
respect of such claims.


 


Section 714.           Appointment of
Authenticating Agent.  The Trustee
may appoint an Authenticating Agent acceptable to the Company to authenticate
the Notes.  Any such appointment shall be
evidenced by an instrument in writing signed by a Responsible Officer, a copy
of which instrument shall be promptly furnished to the Company.  Unless limited by the terms of such
appointment, an Authenticating Agent may authenticate Notes whenever the
Trustee may do so.  Each reference in
this Indenture to authentication (or execution of a certificate of
authentication) by the Trustee includes authentication (or execution of a
certificate of authentication) by such Authenticating Agent.  An Authenticating Agent has the same rights
as any Registrar, Paying Agent or agent for service of notices and demands.


 


ARTICLE VIII



HOLDERS’ LISTS AND REPORTS BY

TRUSTEE AND THE COMPANY


 


Section 801.           The Company to
Furnish Trustee Names and Addresses of Holders.  The Company will furnish or cause to be
furnished to the Trustee


 


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(1)           semi-annually, not more than 10 days after
each Regular Record Date, a list, in such form as the Trustee may reasonably
require, of the names and addresses of the Holders as of such Regular Record
Date, and


 


(2)           at such other times as the Trustee may
request in writing, within 30 days after the receipt by the Company of any
such request, a list of similar form and content as of a date not more than 15
days prior to the time such list is furnished;


 


provided, however,
that if and to the extent and so long as the Trustee shall be the Note
Registrar, no such list need be furnished pursuant to this Section 801.


 


Section 802.           Preservation of
Information; Communications to Holders. 
The Trustee shall preserve, in as current a form as is reasonably
practicable, the names and addresses of Holders contained in the most recent
list, if any, furnished to the Trustee as provided in Section 801
and the names and addresses of Holders received by the Trustee in its capacity
as Note Registrar; provided, however, that if and so long as the Trustee shall be the
Note Registrar, the Note Register shall satisfy the requirements relating to
such list.  None of the Company, any
Subsidiary Guarantor or the Trustee or any other Person shall be under any
responsibility with regard to the accuracy of such list.  The Trustee may destroy any list furnished to
it as provided in Section 801 upon receipt of a new list so
furnished.


 


The rights of Holders to communicate with other Holders with respect to
their rights under this Indenture or under the Notes, and the corresponding
rights and privileges of the Trustee, shall be as provided by the TIA.


 


Every Holder of Notes, by receiving and holding the same, agrees with
the Company and the Trustee that neither the Company nor the Trustee, nor any
agent of either of them, shall be held accountable by reason of any disclosure
of information as to names and addresses of Holders made pursuant to the TIA.


 


Section 803.           Reports by Trustee.  Within 60 days after each May 15,
beginning with May 15, 2009, the Trustee shall transmit to Holders such
reports concerning the Trustee and its actions under this Indenture as may be
required pursuant to the TIA at the times and in the manner provided pursuant thereto for so long
as any Notes remain outstanding.  A copy
of each such report shall, at the time of such transmission to Holders, be
filed by the Trustee or any applicable listing agent with each stock exchange
upon which any Notes are listed, with the SEC and with the Company.  The Company will notify the Trustee when any
Notes are listed on any stock exchange.


 


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ARTICLE IX



AMENDMENT, SUPPLEMENT OR WAIVER


 


Section 901.           Without Consent of
Holders.  Without the consent of the
Holders of any Notes, the Company, the Trustee and (as applicable) each
Subsidiary Guarantor may amend or supplement this Indenture or the Notes, for
any of the following purposes:


 


(1)           to cure any ambiguity, mistake, omission,
defect or inconsistency,


 


(2)           to provide for the assumption by a successor
of the obligations of the Company or a Subsidiary Guarantor under this
Indenture,


 


(3)           to provide for uncertificated Notes in
addition to or in place of certificated Notes,


 


(4)           to add Guarantees with respect to the Notes,
to secure the Notes, to confirm and evidence the release, termination or
discharge of any Guarantee or Lien with respect to or securing the Notes when
such release, termination or discharge is provided for under this Indenture,


 


(5)           to add to the covenants of the Company for
the benefit of the Holders or to surrender any right or power conferred upon
the Company,


 


(6)           to provide for or confirm the issuance of
Additional Notes or Exchange Notes,


 


(7)           to increase the minimum denomination of the
Notes to equal the dollar equivalent of €1,000 rounded up to the nearest $1,000
(including for purposes of redemption or repurchase of any Note in part),


 


(8)           to make any change that does not materially
adversely affect the rights of any Holder under the Notes or this Indenture, or


 


(9)           to comply with any requirement of the SEC in
connection with the qualification of this Indenture under the TIA or otherwise.


 


Section 902.           With Consent of
Holders.  Subject to Section 608,
the Company, the Trustee and (if applicable) each Subsidiary Guarantor may
amend or supplement this Indenture or the Notes with the written consent of the
Holders of not less than a majority in aggregate principal amount of the
Outstanding Notes (including consents obtained in connection with a tender offer
or exchange offer for Notes) and the Holders of not less than a majority in
aggregate principal amount of the Outstanding Notes by written notice to the
Trustee (including consents obtained in connection with a tender offer or
exchange offer for Notes) may waive any 


 


106

















 


existing Default or Event of Default or
compliance by the Company or any Subsidiary Guarantor with any provision of
this Indenture, the Notes or any Subsidiary Guarantee.


 


Notwithstanding the provisions of this Section 902, without
the consent of each Holder affected, an amendment or waiver, including a waiver
pursuant to Section 613, may not:


 


(i)            reduce the principal amount of the Notes
whose Holders must consent to an amendment or waiver;


 


(ii)           reduce the rate of or extend the time for
payment of interest on any Note;


 


(iii)          reduce the principal of or extend the Stated
Maturity of any Note;


 


(iv)          reduce the premium payable upon the
redemption of any Note or change the date on which any Note may be redeemed as
described in Section 1001;


 


(v)           make any Note payable in money other than
that stated in such Note;


 


(vi)          impair the right of any Holder to receive
payment of principal of and interest on such Holder’s Notes on or after the due
dates therefor or to institute suit for the enforcement of any such payment on
or with respect to such Holder’s Notes; or


 


(vii)         make any change in the amendment or waiver
provisions described in this paragraph.


 


It shall not be necessary for the consent of the Holders under this Section 902
to approve the particular form of any proposed amendment, supplement or waiver,
but it shall be sufficient if such consent approves the substance thereof.


 


After an amendment, supplement or waiver under this Section 902
becomes effective, the Company shall mail to the Holders, with a copy to the
Trustee, a notice briefly describing the amendment, supplement or waiver.  Any failure of the Company to mail such
notice, or any defect therein, shall not, however, in any way impair or affect
the validity of any supplemental indenture or the effectiveness of any such
amendment, supplement or waiver.


 


Section 903.           Execution of
Amendments, Supplements or Waivers. 
The Trustee shall sign any amendment, supplement or waiver authorized
pursuant to this Article IX if the amendment, supplement or waiver
does not adversely affect the rights, duties, liabilities or immunities of the
Trustee.  If it does, the Trustee may,
but need not, sign it.  In signing or
refusing to sign such amendment, supplement or waiver, the Trustee shall be
entitled to receive, and shall be fully protected in relying upon, an Officer’s
Certificate and an Opinion of Counsel to the effect that the execution of such
amendment, supplement or waiver has been duly authorized, executed and
delivered by the Company and that, subject to applicable bankruptcy,
insolvency, fraudulent transfer, fraudulent conveyance, reorganization,
moratorium and other laws now or hereinafter in effect affecting creditors’
rights or remedies generally and to general 


 


107

















 


principles of equity (including standards of
materiality, good faith, fair dealing and reasonableness), whether considered
in a proceeding at law or at equity, such amendment, supplement or waiver is a
valid and binding agreement of the Company, enforceable against the Company in
accordance with its terms.


 


Section 904.           Revocation and
Effect of Consents.  Until an
amendment, supplement or waiver becomes effective, a consent to it by a Holder
is a continuing consent by the Holder and every subsequent Holder of that Note
or any Note that evidences all or any part of the same debt as the consenting
Holder’s Note, even if notation of the consent is not made on any Note.  Subject to the following paragraph of this Section 904,
any such Holder or subsequent Holder may revoke the consent as to such Holder’s
Note by written notice to the Trustee or the Company, received by the Trustee
or the Company, as the case may be, before the date on which the Trustee
receives an Officer’s Certificate from the Company certifying that the Holders
of the requisite principal amount of Notes have consented (and not theretofore
revoked such consent) to the amendment, supplement or waiver.  The Company may, but shall not be obligated
to, fix a record date for the purpose of determining the Holders entitled to
consent to any amendment, supplement or waiver as set forth in Section 108.


 


After an amendment, supplement or waiver becomes effective, it shall
bind every Holder of Notes, unless it makes a change described in any of
clauses (i) through (viii) of the second paragraph of Section 902.  In that case, the amendment, supplement or
waiver shall bind each Holder of a Note who has consented to it and every subsequent
Holder of such Note or any Note that evidences all or any part of the same debt
as the consenting Holder’s Note.


 


Section 905.           Conformity with TIA.  Every amendment or supplemental indenture
executed pursuant to this Article shall conform to the requirements of the
TIA as then in effect.


 


Section 906.           Notation on or
Exchange of Notes.  If an amendment,
supplement or waiver changes the terms of a Note, the Trustee shall (if
required by the Company and in accordance with the specific direction of the Company)
request the Holder of the Note to deliver it to the Trustee.  The Trustee shall (if required by the Company
and in accordance with the specific direction of the Company) place an
appropriate notation on the Note about the changed terms and return it to the
Holder.  Alternatively, if the Company or
the Trustee so determines, the Company in exchange for the Note shall issue and
the Trustee shall authenticate a new Note that reflects the changed terms.  Failure to make the appropriate notation or
issue a new Note shall not affect the validity and effect of such amendment,
supplement or waiver.


 


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ARTICLE X



REDEMPTION OF NOTES


 


Section 1001.         Right of Redemption.


 


(a)           The Notes will be
redeemable, at the Company’s option, in whole or in part, at any time and from
time to time on and after July 15, 2011 and prior to maturity at the
applicable redemption price set forth below. Such redemption may be made upon
notice mailed by first-class mail to each Holder’s registered address in
accordance with Section 1005. The Company may provide in such
notice that payment of the redemption price and the performance of the Company’s
obligations with respect to such redemption may be performed by another Person.
Any such redemption and notice may, in the Company’s discretion, be subject to
the satisfaction of one or more conditions precedent, including but not limited
to the occurrence of a Change of Control. The Notes will be so redeemable at
the following redemption prices (expressed as a percentage of principal
amount), plus accrued and unpaid interest, if any, to the relevant Redemption
Date (subject to the right of Holders of record on the relevant Regular Record
Date to receive interest due on the relevant Interest Payment Date pursuant to Section 307),
if redeemed during the 12-month period commencing on July 15 of the years
set forth below:


 


	
  Redemption Period

  	
   

  	
  Price

  	
   

  
	
  2011

  	
   

  	
  105.3750

  	
  %

  
	
  2012

  	
   

  	
  102.6875

  	
  %

  
	
  2013 and
  thereafter

  	
   

  	
  100.0000

  	
  %

  



 


(b)           In addition, at any
time and from time to time on or prior to July 15, 2010, the Company at
its option may redeem Notes in an aggregate principal amount equal to up to 35%
of the original aggregate principal amount of the Notes (including the
principal amount of any Additional Notes), with funds in an equal aggregate
amount (the “Redemption Amount”) not exceeding the aggregate proceeds of
one or more Equity Offerings, at a redemption price (expressed as a percentage
of principal amount thereof) of 110.75% plus accrued and unpaid interest, if
any, to the Redemption Date (subject to the right of Holders of record on the
relevant Regular Record Date to receive interest due on the relevant Interest
Payment Date pursuant to Section 307); provided, however,
that an aggregate principal amount of Notes equal to at least 65% of the
original aggregate principal amount of Notes (including the principal amount of
any Additional Notes) must remain outstanding after each such redemption of
Notes.


 


The Company may make such redemption upon notice mailed by first-class
mail to each Holder’s registered address in accordance with Section 1005
(but in no event more than 180 days after the completion of the related Equity
Offering). The Company may provide in such notice that payment of the
redemption price and performance of the Company’s obligations with respect to
such redemption may be performed by another Person. Any such notice may be
given prior to the completion of the related Equity Offering, and any such
redemption or notice may, at the Company’s discretion, be subject to the
satisfaction of one or more conditions precedent, including but not limited to
the completion of the related Equity Offering.


 


(c)           At any time prior to July 15,
2011, the Notes may also be redeemed or purchased (by the Company or any other
Person) in whole or in part, at the Company’s option, at a price (the “Redemption
Price”) equal to 100% of the principal amount thereof plus the Applicable
Premium as of, and accrued but unpaid interest, if any, to the Redemption Date 


 


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(subject to the right of Holders of record on
the relevant Regular Record Date to receive interest due on the relevant
Interest Payment Date pursuant to Section 307). Such redemption or
purchase may be made upon notice mailed by first-class mail to each Holder’s
registered address in accordance with Section 1005. The Company may
provide in such notice that payment of the Redemption Price and performance of
the Company’s obligations with respect to such redemption or purchase may be
performed by another Person. Any such redemption, purchase or notice may, at
the Company’s discretion, be subject to the satisfaction of one or more
conditions precedent, including but not limited to the occurrence of a Change
of Control.


 


“Applicable Premium” means, with respect to a Note at any
Redemption Date, the greater of (i) 1.0% of
the principal amount of such Note and (ii) the
excess of (A) the present value at such
Redemption Date of (1) the
redemption price of such Note on July 15, 2011 (such redemption price
being that described in Section 1001(a)), plus (2) all required remaining scheduled interest payments
due on such Note through such date (excluding accrued but unpaid interest to
the Redemption Date), computed using a discount rate equal to the Treasury Rate
plus 50 basis points, over (B) the
principal amount of such Note on such Redemption Date.  Calculation of the Applicable Premium will be
made by the Company or on behalf of the Company by such Person as the Company
shall designate; provided that
such calculation shall not be a duty or obligation of the Trustee.


 


“Treasury Rate” means, with respect to a Redemption Date, the
yield to maturity at the time of computation of United States Treasury
securities with a constant maturity (as compiled and published in the most
recent Federal Reserve Statistical Release H.15(519) that has become publicly
available at least two Business Days prior to such Redemption Date (or, if such
Statistical Release is no longer published, any publicly available source of
similar market data)) most nearly equal to the period from such Redemption Date
to July 15, 2011; provided, however, that if the period from the
Redemption Date to such date is not equal to the constant maturity of a United
States Treasury security for which a weekly average yield is given, the
Treasury Rate shall be obtained by linear interpolation (calculated to the
nearest one-twelfth of a year) from the weekly average yields of United States
Treasury securities for which such yields are given, except that if the period
from the Redemption Date to such date is less than one year, the weekly average
yield on actually traded United States Treasury securities adjusted to a
constant maturity of one year shall be used.


 


(d)           The Company shall have
the right, but not the obligation, to purchase all or part of the Notes held by
the Committed Lenders (as defined in the Senior Interim Loan Agreement) in
accordance with the terms of Section 2.5(e) of the Senior Interim
Loan Agreement.


 


Section 1002.         Applicability of
Article.  Redemption or purchase of
Notes as permitted by Section 1001 shall be made in accordance with
this Article X.


 


Section 1003.         Election to Redeem;
Notice to Trustee.  In case of any
redemption at the election of the Company of less than all of the Notes, the
Company shall, at least two Business Days (but not more than 60 days) prior to
the date on which notice is required to be 


 


110

















 


mailed or caused to be mailed to Holders
pursuant to Section 1005, notify the Trustee of such Redemption
Date and of the principal amount of Notes to be redeemed, in the form of an
Officer’s Certificate.


 


Section 1004.         Selection by Trustee
of Notes to Be Redeemed.  In the case
of any partial redemption, selection of the Notes for redemption will be made
by the Trustee not more than 60 days prior to the Redemption Date on a pro rata basis, by lot or by such other
method as the Trustee in its sole discretion shall deem to be fair and
appropriate, although no Note with an original principal amount equal to or
less than the Minimum Denomination will be redeemed in part.


 


The Trustee shall promptly notify the Company in writing of the Notes
selected for redemption and, in the case of any Note selected for partial
redemption, the principal amount thereof to be redeemed.  On and after the Redemption Date, interest
will cease to accrue on Notes or portions thereof called for redemption.


 


For all purposes of this Indenture, unless the context otherwise requires,
all provisions relating to the redemption of Notes shall relate, in the case of
any Note redeemed or to be redeemed only in part, to the portion of the
principal of such Note that has been or is to be redeemed.


 


Section 1005.         Notice of Redemption.  Notice of redemption or purchase as provided in Section 1001
shall be given by first-class mail, postage prepaid, mailed not less than 30
nor more than 60 days prior to the Redemption Date, to each Holder of Notes to
be redeemed, at such Holder’s address appearing in the Note Register.


 


Any such notice shall state:


 


(1)           the expected Redemption Date,


 


(2)           the redemption price (or the formula by
which the redemption price will be determined),


 


(3)           if less than all Outstanding Notes are to be
redeemed, the identification (and, in the case of partial redemption, the
portion of the respective principal amounts) of the Notes to be redeemed,


 


(4)           that, on the Redemption Date, the redemption
price will become due and payable upon each such Note, and that, unless the
Company defaults in making such redemption payment or the Paying Agent is
prohibited from making such payment pursuant to the terms of this Indenture,
interest thereon shall cease to accrue from and after said date, and


 


(5)           the place where such Notes are to be
surrendered for payment of the redemption price.


 


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In addition, if such
redemption, purchase or notice is subject to satisfaction of one or more
conditions precedent, as permitted by Section 1001, such notice
shall describe each such condition, and if applicable, shall state that, in the
Company’s discretion, the Redemption Date may be delayed until such time as any
or all such conditions shall be satisfied, or such redemption or purchase may
not occur and such notice may be rescinded in the event that any or all such
conditions shall not have been satisfied by the Redemption Date, or by the
Redemption Date as so delayed.


 


The Company may provide in such notice that payment of the redemption price
and the performance of the Company’s obligations with respect to such
redemption may be performed by another Person.


 


Notice of such redemption or purchase of Notes to be so redeemed or
purchased at the election of the Company shall be given by the Company or, at
the Company’s request (made to the Trustee at least 40 days (or such shorter
period as shall be satisfactory to the Trustee) prior to the Redemption Date),
by the Trustee in the name and at the expense of the Company.  Any such request will set forth the
information to be stated in such notice, as provided by this Section 1005.


 


The notice if mailed in the manner herein provided shall be
conclusively presumed to have been given, whether or not the Holder receives
such notice.  In any case, failure to
give such notice by mail or any defect in the notice to the Holder of any Note
designated for redemption as a whole or in part shall not affect the validity
of the proceedings for the redemption of any other Note.


 


Section 1006.         Deposit of Redemption
Price.  On or prior to 12:00 p.m.,
New York City time, on any Redemption Date, the Company shall deposit with the
Trustee or with a Paying Agent (or, if the Company is acting as its own Paying
Agent, the Company shall segregate and hold in trust as provided in Section 403)
an amount of money sufficient to pay the redemption price of, and any accrued
and unpaid interest on, all the Notes or portions thereof which are to be
redeemed on that date.


 


Section 1007.         Notes Payable on
Redemption Date.  Notice of redemption
having been given as provided in this Article X, the Notes so to be
redeemed shall, on the Redemption Date, become due and payable at the
redemption price herein specified and from and after such date (unless the
Company shall default in the payment of the redemption price or the Paying
Agent is prohibited from paying the redemption price pursuant to the terms of
this Indenture) such Notes shall cease to bear interest.  Upon surrender of such Notes for redemption
in accordance with such notice, such Notes shall be paid by the Company at the
redemption price.  Installments of
interest whose Interest Payment Date is on or prior to the Redemption Date
shall be payable to the Holders of such Notes registered as such on the
relevant Regular Record Dates according to their terms and the provisions of Section 307.


 


On and after any Redemption Date, if money sufficient to pay the
redemption price of and any accrued and unpaid interest on Notes called for
redemption shall have been 


 


112

















 


made available in accordance with Section 1006,
the Notes (or the portions thereof) called for redemption will cease to accrue
interest and the only right of the Holders of such Notes (or portions thereof)
will be to receive payment of the redemption price of and, subject to the last
sentence of the preceding paragraph, any accrued and unpaid interest on such
Notes (or portions thereof) to the Redemption Date.  If any Note (or portion thereof) called for
redemption shall not be so paid upon surrender thereof for redemption, the
principal (and premium, if any) shall, until paid, bear interest from the
Redemption Date at the rate borne by the Note (or portion thereof).


 


Section 1008.         Mandatory Redemption.  If the Notes would otherwise constitute “applicable
high yield discount obligations” within the meaning of Section 163(i)(1) of
the Code, at the end of each tax accrual period beginning with the first tax
accrual period ending after July 24, 2012 (each, an “AHYDO Redemption
Date”), the Company will be required to redeem for cash a portion of each
such Note then outstanding equal to the Mandatory Principal Redemption Amount
(as defined below) with respect to such accrual period (such redemption, a “Mandatory
Principal Redemption”).  The
redemption price for the portion of each Note redeemed pursuant to a Mandatory
Principal Redemption will be 100% of the principal amount of such portion plus
any accrued interest thereon on the date of redemption.  The “Mandatory Principal Redemption Amount”
with respect to an accrual period means the portion of a Note required to be
redeemed to prevent such Note from being treated as an “applicable high yield
discount obligation” within the meaning of Section 163(i)(1) of the
Code.  No partial redemption or
repurchase of the Notes prior to an AHYDO Redemption Date pursuant to any other
provision of this Indenture will alter the Company’s obligation to make a
Mandatory Principal Redemption with respect to any Notes that remain
outstanding on such AHYDO Redemption Date.


 


Section 1009.         Notes Redeemed in Part.  Any Note that is to be redeemed only in part
shall be surrendered at the Place of Payment (with, if the Company or the
Trustee so requires, due endorsement by, or a written instrument of transfer in
form satisfactory to the Company and the Trustee duly executed by, the Holder
thereof or its attorney duly authorized in writing) and the Company shall
execute and the Trustee shall authenticate and deliver to the Holder of such
Note without service charge, a new Note or Notes, of any authorized
denomination as requested by such Holder in aggregate principal amount equal to
and in exchange for the unredeemed portion of the principal of the Note so
surrendered.


 


ARTICLE XI



SATISFACTION AND DISCHARGE


 


Section 1101.         Satisfaction and
Discharge of Indenture.  This
Indenture shall be discharged and shall cease to be of further effect (except
as to any surviving rights of registration of transfer or exchange of Notes
herein expressly provided for), and the Trustee, on demand of and at the
expense of the Company, shall execute proper instruments acknowledging
satisfaction and discharge of this Indenture, when


 


113

















 


(i)            either


 


(a)           all Notes theretofore authenticated and
delivered (other than (i) Notes
that have been destroyed, lost or stolen and that have been replaced or paid as
provided in Section 306, and (ii) Notes
for whose payment money has theretofore been deposited in trust or segregated
and held in trust by the Company and thereafter repaid to the Company or
discharged from such trust, as provided in Section 403) have been
cancelled or delivered to the Trustee for cancellation; or


 


(b)           all such Notes not theretofore cancelled or
delivered to the Trustee for cancellation


 


(1)           have become due and
payable, or


 


(2)           will become due and
payable at their Stated Maturity within one year, or


 


(3)           have been or are to be
called for redemption within one year under arrangements reasonably
satisfactory to the Trustee for the giving of notice of redemption by the
Trustee in the name, and at the expense, of the Company,


 


(ii)           the Company has irrevocably deposited or
caused to be deposited with the Trustee money, U.S. Government Obligations  or a combination thereof, sufficient (without reinvestment)
to pay and discharge the entire Indebtedness on such Notes not theretofore
cancelled or delivered to the Trustee for cancellation, for principal (and
premium, if any) and interest to the date of such deposit (in the case of Notes
that have become due and payable), or to the Stated Maturity or Redemption
Date, as the case may be (provided that if such redemption shall be
pursuant to Section 1001(c), (x) the
amount of money or U.S. Government Obligations, or a combination thereof, that
the Company must irrevocably deposit or cause to be deposited shall be
determined using an assumed Applicable Premium calculated as of the date of
such deposit and assuming the payment of any unpaid interest in the form of
Cash Interest, as calculated by the Company, and (y) the Company must irrevocably deposit or cause to be
deposited additional money in trust on the Redemption Date, as required by Section 1006,
as necessary to pay the Applicable Premium as determined on such date);


 


(iii)          the Company has paid or caused to be paid all
other sums then payable hereunder by the Company; and


 


(iv)          the Company has delivered to the Trustee an
Officer’s Certificate of the Company and an Opinion of Counsel each to the
effect that all conditions precedent provided
for in this Section 1101 relating to the satisfaction and discharge
of this Indenture have been complied with, provided that
any such counsel may rely on any


 


114
















 


Officer’s Certificate as to matters of fact (including as to compliance
with the foregoing clauses (i),
(ii) and (iii)).


 


Notwithstanding the satisfaction and discharge of this Indenture, the
obligations of the Company to the Trustee under Section 707 and, if
money shall have been deposited with the Trustee pursuant to Section 1101(ii),
the obligations of the Trustee under Section 1102 shall survive
such satisfaction and discharge.


 


Section 1102.         Application of Trust Money.  Subject to the provisions of the last
paragraph of Section 403, all money and/or U.S. Government
Obligations (including the proceeds thereof) deposited with the Trustee
pursuant to Section 1101 shall be held in trust and applied by it,
in accordance with the provisions of the Notes and this Indenture, to the
payment, either directly or through any Paying Agent as the Trustee may
determine, to the Persons entitled thereto, of the principal (and premium, if
any) and interest on the Notes; but such money need not be segregated from
other funds except to the extent required by law.


 


ARTICLE XII



DEFEASANCE OR COVENANT DEFEASANCE


 


Section 1201.         The Company’s Option to Effect
Defeasance or Covenant Defeasance. 
The Company may, at its option, at any time, elect to have terminated
the obligations of the Company with respect to Outstanding Notes and to have
terminated all of the obligations of the Subsidiary Guarantors with respect to
the Subsidiary Guarantees, in each case, as set forth in this Article XII,
and elect to have either Section 1202 or Section 1203
be applied to all of the Outstanding Notes (the “Defeased Notes”), upon
compliance with the conditions set forth below in Section 1204.  Either Section 1202 or Section 1203
may be applied to the Defeased Notes to any Redemption Date or the Stated
Maturity of the Notes.


 


Section 1202.         Defeasance and Discharge.  Upon the Company’s exercise under Section 1201
of the option applicable to this Section 1202, the Company shall be
deemed to have been released and discharged from its obligations with respect
to the Defeased Notes on the date the relevant conditions set forth in Section 1204
below are satisfied (hereinafter, “Defeasance”).  For this purpose, such Defeasance means that
the Company shall be deemed to have paid and discharged the entire Indebtedness
represented by the Defeased Notes, which shall thereafter be deemed to be “Outstanding”
only for the purposes of Section 1205 and the other Sections of
this Indenture referred to in clauses (a) and
(b) below, and the Company
and each of the Subsidiary Guarantors shall be deemed to have satisfied all
other obligations under such Notes and this Indenture insofar as such Notes are
concerned (and the Trustee, at the expense of the Company, shall execute proper
instruments acknowledging the same), except for the following, which shall
survive until otherwise terminated or discharged hereunder:  (a) the
rights of Holders of Defeased Notes to receive, solely from the trust fund
described in Section 1204 and as more fully set forth in such
Section, payments in respect of the principal of and premium, if any, and
interest on such Notes when such payments are due, (b) the Company’s obligations with respect to such
Defeased Notes under Sections 304, 305, 306, 402, and 403,
(c) the rights, powers,
trusts, 


 


115

















 


duties and immunities of the Trustee
hereunder, including the Trustee’s rights under Section 707, and (d) this Article XII.  If the Company exercises its option under
this Section 1202, payment of the Notes may not be accelerated
because of an Event of Default with respect thereto.  Subject to compliance with this Article XII,
the Company may, at its option and at any time, exercise its option under this Section 1202
notwithstanding the prior exercise of its option under Section 1203
with respect to the Notes.


 


Section 1203.         Covenant Defeasance.  Upon the Company’s exercise under Section 1201
of the option applicable to this Section 1203, (a) the Company shall be released from
its obligations under any covenant or provision contained in Section 405
and Sections 407 through 415, and the provisions of
clauses (iii), (iv) and (v) of Section 501(a) shall not apply,
and (b) the occurrence of
any event specified in clause (iv),
(v) (with respect to Section 405
and Sections 407 through 415, inclusive), (vi), (vii),
(viii) (with respect to
Subsidiaries), (ix) (with
respect to Subsidiaries), (x) or
(xi) of Section 601
shall be deemed not to be or result in an Event of Default, in each case with
respect to the Defeased Notes on and after the date the conditions set forth
below are satisfied (hereinafter, “Covenant Defeasance”), and the Notes
shall thereafter be deemed not to be “Outstanding” for the purposes of any
direction, waiver, consent or declaration or Act of Holders (and the
consequences of any thereof) in connection with such covenants or provisions,
but shall continue to be deemed “Outstanding” for all other purposes
hereunder.  For this purpose, such
Covenant Defeasance means that, with respect to the Outstanding Notes, the
Company may omit to comply with and shall have no liability in respect of any
term, condition or limitation set forth in any such covenant or provision,
whether directly or indirectly, by reason of any reference elsewhere herein to
any such covenant or provision or by reason of any reference in any such
covenant or provision to any other provision herein or in any other document
and such omission to comply shall not constitute a Default or an Event of
Default under Section 601, but, except as specified above, the
remainder of this Indenture and such Outstanding Notes shall be unaffected
thereby.


 


Section 1204.         Conditions to Defeasance or Covenant
Defeasance.  The following shall be
the conditions to application of either Section 1202 or Section 1203
to the Outstanding Notes:


 


(1)           The
Company shall have irrevocably deposited or caused to be deposited with the
Trustee, in trust, money or U.S. Government Obligations,  or a combination thereof, in amounts as will be sufficient
(without reinvestment), to pay and discharge the principal of, and premium, if
any, and interest on the Defeased Notes to the Stated Maturity or relevant
Redemption Date in accordance with the terms of this Indenture and the Notes (provided
that if such redemption shall be pursuant to Section 1001(c), (x) the amount of money or U.S. Government Obligations
or a combination thereof that the Company must irrevocably deposit or cause to
be deposited shall be determined using an assumed Applicable Premium calculated
as of the date of such deposit and assuming the payment of any unpaid interest
in the form of Cash Interest, as calculated by the Company, and (y) the Company must irrevocably deposit or cause to be
deposited 


 


116

















 


additional money in trust on the Redemption Date, as required by Section 1006,
as necessary to pay the Applicable Premium as determined on such date);


 


(2)           No
Default or Event of Default shall have occurred and be continuing on the date
of such deposit;


 


(3)           Such deposit shall not result in a
breach or violation of, or constitute a Default or Event of Default under, this
Indenture or any other material agreement or instrument to which the Company is
a party or by which it is bound;


 


(4)           In
the case of an election under Section 1202, the Company shall have
delivered to the Trustee an Opinion of Counsel from Debevoise &
Plimpton LLP or other counsel in the United States to the effect that (x) the Company has received from, or there has been
published by, the Internal Revenue Service a ruling or (y) since
the Closing Date, there has been a change in the applicable Federal income tax
law, in either case to the effect that, and based thereon such opinion shall
confirm to the effect that, the Holders of the Outstanding Notes will not
recognize income, gain or loss for Federal income tax purposes as a result of
such Defeasance and will be subject to Federal income tax on the same amounts,
in the same manner and at the same times as would have been the case if such Defeasance
had not occurred; provided that
such Opinion of Counsel need not be delivered if all Notes theretofore
authenticated and delivered (other than (i) Notes
that have been destroyed, lost or stolen and that have been replaced or paid as
provided in Section 306, and (ii) Notes
for whose payment money has theretofore been deposited in trust or segregated
and held in trust by the Company and thereafter repaid to the Company or
discharged from such trust, as provided in Section 403) not
theretofore delivered to the Trustee for cancellation have become due and
payable, will become due and payable at their Stated Maturity within one year,
or are to be called for redemption within one year under arrangements
reasonably satisfactory to the Trustee in the name, and at the expense, of the
Company;


 


(5)           In
the case of an election under Section 1203, the Company shall have
delivered to the Trustee an Opinion of Counsel from Debevoise &
Plimpton LLP or other counsel in the United States to the effect that the
Holders of the Outstanding Notes will not recognize income, gain or loss for
Federal income tax purposes as a result of such Covenant Defeasance and will be
subject to Federal income tax on the same amounts, in the same manner and at
the same times as would have been the case if such Covenant Defeasance had not
occurred; and


 


(6)           The
Company shall have delivered to the Trustee an Officer’s Certificate and an
Opinion of Counsel, each to the effect that all conditions precedent provided
for in this Section 1204 relating to either the Defeasance under Section 1202
or the Covenant Defeasance under Section 1203, as the case may be,
have been complied with.  In rendering
such Opinion of Counsel, counsel may rely on an Officer’s Certificate as to
compliance with the foregoing clauses (1), (2) and (3) of this
Section 1204 or as to any matters of fact.


 


117

















 


Section 1205.         Deposited Money and U.S. Government
Obligations to Be Held in Trust; Other Miscellaneous Provisions.  Subject to the provisions of the last
paragraph of Section 403, all money and U.S. Government Obligations
(including the proceeds thereof) deposited with the Trustee (or such other
Person that would qualify to act as successor trustee under Article VII,
collectively and solely for purposes of this Section 1205, the “Trustee”)
pursuant to Section 1204 in respect of the Defeased Notes shall be
held in trust and applied by the Trustee, in accordance with the provisions of
such Notes and this Indenture, to the payment, either directly or through any
Paying Agent as the Trustee may determine, to the Holders of such Notes of all
sums due and to become due thereon in respect of principal, premium, if any,
and interest, but such money need not be segregated from other funds except to
the extent required by law.


 


The Company shall pay and indemnify the Trustee and its agents and hold
them harmless against any tax, fee or other charge imposed on or assessed
against the U.S. Government Obligations deposited pursuant to Section 1204,
or the principal, premium, if any, and interest received in respect thereof,
other than any such tax, fee or other charge that by law is for the account of
the Holders of the Defeased Notes.


 


Anything in this Article XII to the contrary notwithstanding,
the Trustee shall deliver to the Company from time to time, upon Company
Request, any money or U.S. Government Obligations held by it as provided in Section 1204
that, in the opinion of a nationally recognized accounting or investment
banking firm expressed in a written certification thereof to the Trustee, are
in excess of the amount thereof that would then be required to be deposited to
effect an equivalent Defeasance or Covenant Defeasance.  Subject to Article VII, the
Trustee shall not incur any liability to any Person by relying on such opinion.


 


Section 1206.         Reinstatement.  If the Trustee or Paying Agent is unable to
apply any money or U.S. Government Obligations in accordance with Section 1202
or 1203, as the case may be, by reason of any order or judgment of any
court or governmental authority enjoining, restraining or otherwise prohibiting
such application, then the obligations of the Company and the Subsidiary
Guarantors under this Indenture, the Notes and the Subsidiary Guarantees shall be
revived and reinstated as though no deposit had occurred pursuant to Section 1202
or 1203, as the case may be, until such time as the Trustee or Paying
Agent is permitted to apply all such money and U.S. Government Obligations in
accordance with Section 1202 or 1203, as the case may be; provided, however, that
if the Company or any Subsidiary Guarantor makes any payment of principal,
premium, if any, or interest on any Note following the reinstatement of its
obligations, the Company or Subsidiary Guarantor, as the case may be, shall be
subrogated to the rights of the Holders of such Notes to receive such payment
from the money and U.S. Government Obligations held by the Trustee or Paying
Agent.


 


Section 1207.         Repayment to the Company.  The Trustee shall pay to the Company upon
Company Request any money held by it for the payment of principal or interest
that remains unclaimed for two years after the Stated Maturity or the
Redemption Date, as the case may be. 
After payment to the Company, Holders entitled to money must look to the



 


118

















 


Company for payment as general creditors
unless an applicable abandoned property law designates another Person and all
liability of the Trustee or Paying Agent with respect to such money shall
thereupon cease.


 


ARTICLE XIII



SUBSIDIARY GUARANTEES


 


Section 1301.         Guarantees
Generally.


 


(a)           Guarantee of Each Subsidiary
Guarantor.  Each Subsidiary
Guarantor, as primary obligor and not merely as surety, hereby jointly and
severally, irrevocably and fully and unconditionally Guarantees, on an
unsecured senior basis, the punctual payment when due, whether at Stated
Maturity, by acceleration or otherwise, of all monetary obligations of the
Company under this Indenture and the Notes, whether for principal of or
interest on the Notes, expenses, indemnification or otherwise (all such
obligations guaranteed by such Subsidiary Guarantors being herein called the “Subsidiary
Guaranteed Obligations”).


 


The obligations of each Subsidiary Guarantor will be limited to the
maximum amount as will, after giving effect to all other contingent and fixed
liabilities of such Subsidiary Guarantor (including but not limited to any
Guarantee by it of any Bank Indebtedness) and after giving effect to any collections
from or payments made by or on behalf of any other Subsidiary Guarantor in
respect of the obligations of such other Subsidiary Guarantor under its
Subsidiary Guarantee or pursuant to its contribution obligations under this
Indenture, result in the obligations of such Subsidiary Guarantor under the
Subsidiary Guarantee not constituting a fraudulent conveyance or fraudulent
transfer under applicable law, or being void or unenforceable under any law
relating to insolvency of debtors.


 


(b)           Further Agreements of Each
Subsidiary Guarantor.


 


(i)            Each
Subsidiary Guarantor hereby agrees that (to the fullest extent permitted by
law) its obligations hereunder shall be unconditional, irrespective of the
validity, regularity or enforceability of this Indenture, the Notes or the
obligations of the Company or any other Subsidiary Guarantor to the Holders or
the Trustee hereunder or thereunder, the absence of any action to enforce the
same, any waiver or consent by any Holder with respect to any provisions hereof
or thereof, any release of any other Subsidiary Guarantor, the recovery of any
judgment against the Company, any action to enforce the same, whether or not a
notation concerning its Subsidiary Guarantee is made on any particular Note, or
any other circumstance that might otherwise constitute a legal or equitable
discharge or defense of a Subsidiary Guarantor.


 


(ii)           Each
Subsidiary Guarantor hereby waives (to the fullest extent permitted by law) the
benefit of diligence, presentment, demand of payment, filing of claims with a
court in the event of insolvency or bankruptcy of the Company, any right to
require a proceeding first against the Company, protest, notice and all demands
whatsoever and 


 


119

















 


covenants that (except as otherwise provided in Section 1303)
its Subsidiary Guarantee will not be discharged except by complete performance
of the obligations contained in the Notes, this Indenture and this Subsidiary
Guarantee.  Such Subsidiary Guarantee is
a guarantee of payment and not of collection. 
Each Subsidiary Guarantor further agrees (to the fullest extent
permitted by law) that, as between it, on the one hand, and the Holders of
Notes and the Trustee, on the other hand, subject to this Article XIII,
(1) the maturity of the
obligations guaranteed by its Subsidiary Guarantee may be accelerated as and to
the extent provided in Article VI for the purposes of such
Subsidiary Guarantee, notwithstanding any stay, injunction or other prohibition
preventing such acceleration in respect of the obligations guaranteed by such
Subsidiary Guarantee, and (2) in
the event of any acceleration of such obligations as provided in Article VI,
such obligations (whether or not due and payable) shall forthwith become due
and payable by such Subsidiary Guarantor in accordance with the terms of this Section 1301
for the purpose of such Subsidiary Guarantee. 
Neither the Trustee nor any other Person shall have any obligation to
enforce or exhaust any rights or remedies or to take any other steps under any
security for the Subsidiary Guaranteed Obligations or against the Company or
any other Person or any property of the Company or any other Person before the
Trustee is entitled to demand payment and performance by any or all Subsidiary
Guarantors of their obligations under their respective Subsidiary Guarantees or
under this Indenture.


 


(iii)          Until
terminated in accordance with Section 1303, each Subsidiary
Guarantee shall remain in full force and effect and continue to be effective
should any petition be filed by or against the Company for liquidation or
reorganization, should the Company become insolvent or make an assignment for
the benefit of creditors or should a receiver or trustee be appointed for all
or any significant part of the Company’s assets, and shall, to the fullest
extent permitted by law, continue to be effective or be reinstated, as the case
may be, if at any time payment and performance of the Notes are, pursuant to
applicable law, rescinded or reduced in amount, or must otherwise be restored
or returned by any obligee on such Notes, whether as a “voidable preference,” “fraudulent
transfer” or otherwise, all as though such payment or performance had not been
made.  In the event that any payment, or
any part thereof, is rescinded, reduced, restored or returned, the Notes shall,
to the fullest extent permitted by law, be reinstated and deemed reduced only
by such amount paid and not so rescinded, reduced, restored or returned.


 


(c)           Each Subsidiary Guarantor that makes
a payment or distribution under its Subsidiary Guarantee shall have the right
to seek contribution from the Company or any non-paying Subsidiary Guarantor
that has also Guaranteed the relevant Subsidiary Guaranteed Obligations in
respect of which such payment or distribution is made, so long as the exercise
of such right does not impair the rights of the Holders under the Subsidiary
Guarantees.


 


(d)           Each Subsidiary Guarantor
acknowledges that it will receive direct and indirect benefits from the
financing arrangements contemplated by this Indenture and that its Subsidiary
Guarantee, and the waiver set forth in Section 1305, are knowingly
made in contemplation of such benefits.


 


120

















 


(e)           Each Subsidiary Guarantor, pursuant
to its Subsidiary Guarantee, also hereby agrees to pay any and all reasonable
out-of-pocket expenses (including reasonable counsel fees and expenses)
incurred by the Trustee or the Holders in enforcing any rights under its
Subsidiary Guarantee.


 


Section 1302.         Continuing Guarantees.


 


(a)           Each Subsidiary Guarantee shall be a
continuing Guarantee and shall (i) subject
to Section 1303, remain in full force and effect until payment in
full of the principal amount of all Outstanding Notes (whether by payment at
maturity, purchase, redemption, defeasance, retirement or other acquisition)
and all other Subsidiary Guaranteed Obligations of the Subsidiary Guarantor
then due and owing, (ii) be
binding upon such Subsidiary Guarantor and (iii) inure
to the benefit of and be enforceable by the Trustee, the Holders and their
permitted successors, transferees and assigns.


 


(b)           The obligations of each Subsidiary
Guarantor hereunder shall continue to be effective or shall be reinstated, as
the case may be, if at any time any payment which would otherwise have reduced
or terminated the obligations of any Subsidiary Guarantor hereunder and under
its Subsidiary Guarantee (whether such payment shall have been made by or on
behalf of the Company or by or on behalf of a Subsidiary Guarantor) is
rescinded or reclaimed from any of the Holders upon the insolvency, bankruptcy,
liquidation or reorganization of the Company or any Subsidiary Guarantor or
otherwise, all as though such payment had not been made.


 


Section 1303.         Release of Subsidiary Guarantees.  Notwithstanding the provisions of Section 1302,
Subsidiary Guarantees will be subject to termination and discharge under the
circumstances described in this Section 1303.  Any Subsidiary Guarantor will automatically
and unconditionally be released from all obligations under its Subsidiary
Guarantee, and such Subsidiary Guarantee shall thereupon terminate and be
discharged and of no further force or effect, (i) concurrently
with any direct or indirect sale or disposition (by merger or otherwise) of any
Subsidiary Guarantor or any interest therein in accordance with the terms of
this Indenture (including Section 411 and Section 501)
by the Company or a Restricted Subsidiary, following which such Subsidiary
Guarantor is no longer a Restricted Subsidiary of the Company, (ii) at any time that such Subsidiary
Guarantor is released from all of its obligations under all of its Guarantees
of payment of any Indebtedness of the Company or any Subsidiary Guarantor under
Credit Facilities and Capital Markets Securities (it being understood that a
release subject to contingent reinstatement is still a release, and that if any
such Guarantee is so reinstated, such Subsidiary Guarantee shall also be
reinstated to the extent that such Subsidiary Guarantor would then be required
to provide a Subsidiary Guarantee pursuant to Section 414), (iii) upon the merger or consolidation
of any Subsidiary Guarantor with and into the Company or another Subsidiary
Guarantor that is the surviving Person in such merger or consolidation, or upon
the liquidation of such Subsidiary Guarantor following the transfer of all of
its assets to the Company or another Subsidiary Guarantor, (iv) concurrently with any Subsidiary
Guarantor becoming an Unrestricted Subsidiary, (v) upon Defeasance or Covenant Defeasance of the
Company’s obligations, or satisfaction and discharge of this Indenture, or (vi) subject to Section 1301(b)(iii) and



 


121

















 


Section 1302(b),
upon payment in full of the aggregate principal amount of all Notes then
Outstanding and all other Subsidiary Guaranteed Obligations then due and
owing.  In addition, the Company will
have the right, upon 30 days’ notice to the Trustee, to cause any
Subsidiary Guarantor that has not guaranteed payment of any Indebtedness of the
Company or any Subsidiary Guarantor under Credit Facilities or Capital Markets
Securities to be unconditionally released from all obligations under its
Subsidiary Guarantee, and such Subsidiary Guarantee shall thereupon terminate
and be discharged and of no further force or effect.


 


Upon any such occurrence specified in this Section 1303,
the Trustee shall execute any documents reasonably requested by the Company in
order to evidence such release, discharge and termination in respect of the
applicable Subsidiary Guarantee.


 


Section 1304.         [Reserved].


 


Section 1305.         Waiver of Subrogation.  Each Subsidiary Guarantor hereby irrevocably
waives any claim or other rights that it may now or hereafter acquire against the
Company that arise from the existence, payment, performance or enforcement of
the Company’s obligations under the Notes and this Indenture or such Subsidiary
Guarantor’s obligations under its Subsidiary Guarantee and this Indenture,
including any right of subrogation, reimbursement, exoneration,
indemnification, and any right to participate in any claim or remedy of any
Holder of Notes against the Company, whether or not such claim, remedy or right
arises in equity, or under contract, statute or common law, until this
Indenture is discharged and all of the Notes are discharged and paid in
full.  If any amount shall be paid to any
Subsidiary Guarantor in violation of the preceding sentence and the Notes shall
not have been paid in full, such amount shall be deemed to have been paid to
such Subsidiary Guarantor for the benefit of, and held in trust for the benefit
of, the Holders of the Notes, and shall forthwith be paid to the Trustee for
the benefit of such Holders to be credited and applied upon the Notes, whether
matured or unmatured, in accordance with the terms of this Indenture.


 


Section 1306.         Notation Not Required.  Neither the Company nor any Subsidiary
Guarantor shall be required to make a notation on the Notes to reflect any
Subsidiary Guarantee or any release, termination or discharge thereof.


 


Section 1307.         Successors and Assigns of Subsidiary
Guarantors.  All covenants and
agreements in this Indenture by each Subsidiary Guarantor shall bind its
respective successors and assigns, whether so expressed or not.


 


Section 1308.         Execution and Delivery of Subsidiary
Guarantees.  The Company shall cause
each Restricted Subsidiary that is required to become a Subsidiary Guarantor
pursuant to Section 414, and each Subsidiary of the Company that
the Company causes to become a Subsidiary Guarantor pursuant to Section 414,
to promptly execute and deliver to the Trustee a Supplemental Indenture
substantially in the form set forth in Exhibit E to this Indenture,
or otherwise in form and substance reasonably satisfactory to the Trustee,
evidencing its Subsidiary Guarantee on substantially the terms set forth in
this Article XIII. 
Concurrently therewith, the Company shall deliver to the Trustee an
Opinion of Counsel in form and substance 


 


122

















 


reasonably satisfactory to the Trustee to the
effect that such Supplemental Indenture has been duly authorized, executed and
delivered by such Restricted Subsidiary and that, subject to applicable
bankruptcy, insolvency, fraudulent transfer, fraudulent conveyance,
reorganization, moratorium and other laws now or hereafter in effect affecting
creditors’ rights or remedies generally and to general principles of equity
(including standards of materiality, good faith, fair dealing and
reasonableness), whether considered in a proceeding at law or at equity, such
Supplemental Indenture is a valid and binding agreement of such Restricted
Subsidiary, enforceable against such Restricted Subsidiary in accordance with
its terms.


 


Section 1309.         Notices.  Notice to any Subsidiary Guarantor shall be
sufficient if addressed to such Subsidiary Guarantor care of the Company at the
address, place and manner provided in Section 109.


 


123

















 


IN
WITNESS WHEREOF, the parties hereto have caused this Indenture to be duly
executed, all as of the date first written above.


 


 


	
   

  	
  THE
  SERVICEMASTER COMPANY

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  Steven J. Martin

  
	
   

  	
   

  	
  Name:
  Steven J. Martin

  
	
   

  	
   

  	
  Title:
  Senior Vice President and Chief Financial Officer

  



 


 


	
   

  	
  SUBSIDIARY
  GUARANTORS:

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  INSTAR
  SERVICES GROUP, INC.

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  Steven J. Martin

  
	
   

  	
   

  	
  Name:
  Steven J. Martin

  
	
   

  	
   

  	
  Title:
  Senior Vice President

  



 


 


	
   

  	
  By:

  	
  /s/
  Greerson G. McMullen

  
	
   

  	
   

  	
  Name:
  Greerson G. McMullen

  
	
   

  	
   

  	
  Title:
  Senior Vice President

  



 


 


	
   

  	
  INSTAR
  SERVICES GROUP, L.P.

  
	
   

  	
  By:

  	
  INSTAR
  SERVICES MANAGEMENT,

  
	
   

  	
   

  	
  LLC,
  its general partner

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  Mark W. Peterson

  
	
   

  	
   

  	
  Name:
  Mark W. Peterson

  
	
   

  	
   

  	
  Title:
  Senior Vice President

  



 


	
   

  	
  By:

  	
  /s/
  Greerson G. McMullen

  
	
   

  	
   

  	
  Name:
  Greerson G. McMullen

  
	
   

  	
   

  	
  Title:
  Senior Vice President

  



 


S-1
















 


	
   

  	
  INSTAR
  SERVICES HOLDINGS, LLC

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  Mark W. Peterson

  
	
   

  	
   

  	
  Name:
  Mark W. Peterson

  
	
   

  	
   

  	
  Title:
  Senior Vice President

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  Greerson G. McMullen

  
	
   

  	
   

  	
  Name:
  Greerson G. McMullen

  
	
   

  	
   

  	
  Title:
  Senior Vice President

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  INSTAR
  SERVICES MANAGEMENT, LLC

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  Mark W. Peterson

  
	
   

  	
   

  	
  Name:
  Mark W. Peterson

  
	
   

  	
   

  	
  Title:
  Senior Vice President

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  Greerson G. McMullen

  
	
   

  	
   

  	
  Name:
  Greerson G. McMullen

  
	
   

  	
   

  	
  Title:
  Senior Vice President

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  MERRY
  MAIDS LIMITED PARTNERSHIP

  
	
   

  	
  By:

  	
  MM
  MAIDS L.L.C., its general partner

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  Steven J. Martin

  
	
   

  	
   

  	
  Name:
  Steven J. Martin

  
	
   

  	
   

  	
  Title:
  Senior Vice President

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  Mark W. Peterson

  
	
   

  	
   

  	
  Name:
  Mark W. Peterson

  
	
   

  	
   

  	
  Title:  Senior Vice President

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  MM
  MAIDS L.L.C.

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  Steven J. Martin

  
	
   

  	
   

  	
  Name:
  Steven J. Martin

  
	
   

  	
   

  	
  Title:
  Senior Vice President

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  Mark W. Peterson

  
	
   

  	
   

  	
  Name:
  Mark W. Peterson

  
	
   

  	
   

  	
  Title:
  Senior Vice President

  



 


S-2

















 


	
   

  	
  SERVICEMASTER
  CONSUMER SERVICES, 

  INC.

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  Steven J. Martin

  
	
   

  	
   

  	
  Name:
  Steven J. Martin

  
	
   

  	
   

  	
  Title:
  Senior Vice President

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  Mark W. Peterson

  
	
   

  	
   

  	
  Name:
  Mark W. Peterson

  
	
   

  	
   

  	
  Title:
  Senior Vice President

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  SERVICEMASTER
  CONSUMER SERVICES

  
	
   

  	
  LIMITED
  PARTNERSHIP

  
	
   

  	
  By: SERVICEMASTER
  CONSUMER SERVICES, 

  INC., its general partner

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  Steven J. Martin

  
	
   

  	
   

  	
  Name:
  Steven J. Martin

  
	
   

  	
   

  	
  Title:
  Senior Vice President

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  Mark W. Peterson

  
	
   

  	
   

  	
  Name:
  Mark W. Peterson

  
	
   

  	
   

  	
  Title:
  Senior Vice President

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  SERVICEMASTER
  HOLDING CORPORATION

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  Steven J. Martin

  
	
   

  	
   

  	
  Name:
  Steven J. Martin

  
	
   

  	
   

  	
  Title:
  Senior Vice President

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  Mark W. Peterson

  
	
   

  	
   

  	
  Name:
  Mark W. Peterson

  
	
   

  	
   

  	
  Title:
  Senior Vice President

  



 


S-3

















 


	
   

  	
  SERVICEMASTER
  MANAGEMENT

  CORPORATION

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  Steven J. Martin

  
	
   

  	
   

  	
  Name:
  Steven J. Martin

  
	
   

  	
   

  	
  Title:
  Senior Vice President

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  Mark W. Peterson

  
	
   

  	
   

  	
  Name:
  Mark W. Peterson

  
	
   

  	
   

  	
  Title:
  Senior Vice President

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  SERVICEMASTER
  

  RESIDENTIAL/COMMERCIAL SERVICES 

  LIMITED PARTNERSHIP

  
	
   

  	
  By:

  	
  SM
  CLEAN L.L.C., its general partner

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  Steven J. Martin

  
	
   

  	
   

  	
  Name:
  Steven J. Martin

  
	
   

  	
   

  	
  Title:
  Senior Vice President

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  Mark W. Peterson

  
	
   

  	
   

  	
  Name:
  Mark W. Peterson

  
	
   

  	
   

  	
  Title:
  Senior Vice President

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  SM
  CLEAN L.L.C.

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  Steven J. Martin

  
	
   

  	
   

  	
  Name:
  Steven J. Martin

  
	
   

  	
   

  	
  Title:
  Senior Vice President

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  Mark W. Peterson

  
	
   

  	
   

  	
  Name:
  Mark W. Peterson

  
	
   

  	
   

  	
  Title:
  Senior Vice President

  



 


S-4

















 


	
   

  	
  TERMINIX
  INTERNATIONAL, INC.

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  Steven J. Martin

  
	
   

  	
   

  	
  Name:
  Steven J. Martin

  
	
   

  	
   

  	
  Title:
  Senior Vice President

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  Mark W. Peterson

  
	
   

  	
   

  	
  Name:
  Mark W. Peterson

  
	
   

  	
   

  	
  Title:
  Senior Vice President

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  THE
  TERMINIX INTERNATIONAL COMPANY

  LIMITED PARTNERSHIP

  
	
   

  	
  By:

  	
  TERMINIX
  INTERNATIONAL, INC.,

  
	
   

  	
   

  	
  its
  general partner

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  Steven J. Martin

  
	
   

  	
   

  	
  Name:
  Steven J. Martin

  
	
   

  	
   

  	
  Title:
  Senior Vice President

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  Mark W. Peterson

  
	
   

  	
   

  	
  Name:
  Mark W. Peterson

  
	
   

  	
   

  	
  Title:
  Senior Vice President

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  TRUGREEN
  COMPANIES L.L.C.

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  Steven J. Martin

  
	
   

  	
   

  	
  Name:
  Steven J. Martin

  
	
   

  	
   

  	
  Title:
  Senior Vice President

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  Mark W. Peterson

  
	
   

  	
   

  	
  Name:
  Mark W. Peterson

  
	
   

  	
   

  	
  Title:
  Senior Vice President

  



 


S-5

















 


	
   

  	
  TRUGREEN,
  INC.

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  Steven J. Martin

  
	
   

  	
   

  	
  Name:
  Steven J. Martin

  
	
   

  	
   

  	
  Title:
  Senior Vice President

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  Mark W. Peterson

  
	
   

  	
   

  	
  Name:
  Mark W. Peterson

  
	
   

  	
   

  	
  Title:
  Senior Vice President

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  TRUGREEN
  LANDCARE L.L.C.

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  Steven J. Martin

  
	
   

  	
   

  	
  Name:
  Steven J. Martin

  
	
   

  	
   

  	
  Title:
  Senior Vice President

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  Mark W. Peterson

  
	
   

  	
   

  	
  Name:
  Mark W. Peterson

  
	
   

  	
   

  	
  Title:
  Senior Vice President

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  TRUGREEN
  LIMITED PARTNERSHIP

  
	
   

  	
  By:

  	
  TRUGREEN,
  INC., its general partner

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  Steven J. Martin

  
	
   

  	
   

  	
  Name:
  Steven J. Martin

  
	
   

  	
   

  	
  Title:
  Senior Vice President

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  Mark W. Peterson

  
	
   

  	
   

  	
  Name:
  Mark W. Peterson

  
	
   

  	
   

  	
  Title:
  Senior Vice President

  



 


S-6

















 


	
   

  	
  WILMINGTON
  TRUST FSB, as Trustee

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  Joseph P. O’Donnell

  
	
   

  	
   

  	
  Name:
  Joseph P. O’Donnell

  
	
   

  	
   

  	
  Title:
  Vice President

  



 


S-7

















 


EXHIBIT A


 


FOR THE PURPOSES OF SECTION 1271
ET SEQ. OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED, THIS NOTE IS BEING
ISSUED WITH ORIGINAL ISSUE DISCOUNT (“OID”). FOR INFORMATION ABOUT THE ISSUE
PRICE, THE AMOUNT OF OID, THE ISSUE DATE AND THE YIELD TO MATURITY WITH RESPECT
TO THIS NOTE, PLEASE CONTACT THE DIRECTOR OF FEDERAL AND INTERNATIONAL TAX AT
901-597-8942.


 


Form of Initial Note(1)

(FACE OF NOTE)


 


THE SERVICEMASTER COMPANY


 


10.75%/11.50% Senior Toggle
Notes due 2015


 


	
  CUSIP No.

  	
   

  	
   

  
	
  No.

  	
   

  	
  $

  



 


The ServiceMaster Company, a corporation duly
organized and existing under the laws of the State of Delaware (and its
successors and assigns) (the “Company”), promises to pay to
                                                ,
or registered assigns, the principal sum of
$                                
([                     ]
United States Dollars) [(or such lesser or greater amount as shall be outstanding
hereunder from time to time in accordance with Sections 301, 312
and 313, as applicable, of the Indenture referred to on the reverse
hereof)](2) (the “Principal Amount”) on July 15, 2015.


 


Interest
on this Note shall be payable semi-annually in arrears on January 15 and July 15
of each year, commencing January 15, 2009 (each, an “Interest Payment
Date”).  [Interest on
this Note will accrue from the most recent date to which interest on this Note
or any of its Predecessor Notes has been paid or duly provided for or, if no
interest has been paid, from the Issue Date.](3)  [Interest on
this Note will accrue (or will be deemed to have accrued) from the most recent
date to which interest on this Note or any of its Predecessor Notes has been
paid or duly provided for or, if no such interest has been paid, from July 24,
2008(4).](5).


 






	
  (1)

  	
  Insert any applicable legends from Article II.

  
	
   

  	
   

  
	
  (2)

  	
  Include only if the Note is issued in global form.

  
	
   

  	
   

  
	
  (3)

  	
  Include only for Original Notes.

  
	
   

  	
   

  
	
  (4)

  	
  Insert the Interest Payment Date immediately
  preceding the date of issuance of the applicable Additional Notes, or if the
  date of issuance of such Additional Notes is an Interest Payment Date, such
  date of issuance.

  
	
   

  	
   

  
	
  (5)

  	
  Include only for Additional Notes.

  



 

















 


Interest
on the Notes shall be computed on the basis of a 360-day year consisting of
twelve 30-day months.  The interest so
payable, and punctually paid or duly provided for, on any Interest Payment Date
shall, as provided in the Indenture, be paid to the Person in whose name this
Note (or one or more Predecessor Notes) is registered at the close of business
on the Regular Record Date for such interest, which shall be the January 1
and July 1 (whether or not a Business Day) (a “Regular Record Date”),
as the case may be, immediately preceding such Interest Payment Date.  Any interest (including Cash Interest) on the
Notes that is payable, but is not punctually paid or duly provided for, on any
Interest Payment Date (“Defaulted Interest”) shall forthwith cease to be
payable to the registered Holder on the relevant Regular Record Date by virtue
of having been such Holder; and such Defaulted Interest may be paid by the
Company, at its election, to the Person in whose name the Notes (or one or more
Predecessor Notes) are registered at the close of business on a Special Record
Date for the payment of such Defaulted Interest to be fixed by the Trustee,
notice whereof shall be given to Holders of Notes not more than 15 days nor
less than 10 days prior to such Special Record Date, or at any time in any
other lawful manner not inconsistent with the requirements of any securities
exchange on which the Notes may be listed, and upon such notice as may be
required by such exchange, all as more fully provided in Section 307 of
the Indenture.


 


The Holder of this Note is
entitled to the benefits of the Exchange and Registration Rights Agreement,
dated July 24, 2008, among the Company and the Lenders named therein (the “Registration
Rights Agreement”).  Until (i) this Note has been exchanged for an Exchange
Security (as defined in the Registration Rights Agreement) in an Exchange Offer
(as defined in the Registration Rights Agreement); (ii) a
Shelf Registration Statement (as defined in the Registration Rights Agreement)
registering this Note under the Securities Act has been declared or becomes
effective and this Note has been sold or otherwise transferred by the holder
thereof pursuant to and in a manner contemplated by such effective Shelf
Registration Statement; (iii) this
Note is sold pursuant to Rule 144 under circumstances in which any legend
borne by this Note relating to restrictions on transferability thereof, under
the Securities Act or otherwise, is removed by the Company or pursuant to the
Indenture referred to on the reverse hereof; or (iv) this
Note is eligible to be sold by a person that is not an “affiliate” (as defined
in Rule 144) without restriction or limitation pursuant to Rule 144:  From and including the date on which a
Registration Default  (as defined below)
shall occur to but excluding the date on which such Registration Default has
been cured, additional interest will accrue on this Note until such time as all
Registration Defaults have been cured at the rate of (a) prior
to the 91st day of such period (for so long as such
period is continuing), 0.25% per annum and (b) thereafter
(so long as such period is continuing), 0.50% per annum.  Any such additional interest shall not exceed
such respective rates for such respective periods, and shall not in any event
exceed 0.50% per annum in the aggregate, regardless of the number of
Registration Defaults that shall have occurred and be continuing.  Any such additional interest shall be paid in
the same manner and on the same dates as interest payments in respect of this
Note.  Following the cure of all
Registration Defaults, the accrual of such additional interest will cease.  A Registration Default under 


 


A-2

















 


clause (iii) or (iv) below
will be deemed cured upon consummation of the Exchange Offer in the case of a
Shelf Registration Statement required to be filed due to a failure to
consummate the Exchange Offer within the required time period.  For purposes of the foregoing, each of the
following events, as more particularly defined in the Registration Rights
Agreement, is a “Registration Default”:  (i) neither a Shelf Registration Statement nor an
Exchange Registration Statement has become effective or been declared effective
on or prior to April 20, 2009; (ii) the
Company elects to file and cause to become effective or be declared effective
an Exchange Registration Statement pursuant to Section 2(b) of the
Registration Rights Agreement and the Exchange Offer has not been consummated
on or prior to May 20, 2009; (iii) if a
Shelf Registration Statement required to be filed under Section 2(c) of
the Registration Rights Agreement has not become effective or been declared
effective by the SEC on or prior to April 20, 2009 or (iv) if any Shelf Registration Statement required by the
Registration Rights Agreement is filed and has become effective or been
declared effective, and during the period the Company is required to use its
commercially reasonable efforts to cause the Shelf Registration Statement to
remain effective, (1) the Company shall have suspended the Shelf
Registration Statement for more than 60 days in the aggregate in any
consecutive twelve-month period and be continuing to suspend the availability
of the Shelf Registration Statement, or (2) the Shelf Registration
Statement ceases to be effective (other than by action of the Company pursuant
to the second paragraph of Section 2(a) or Section 2(c) of
the Registration Rights Agreement) without being replaced within 90 days
by a Shelf Registration Statement that is filed and declared effective.(6) (7)


 


For
any semi-annual interest period through the Interest Payment Date immediately
prior to July 24, 2011, the Company may, at its option, elect to pay
interest on the Notes (1) entirely in cash (“Cash Interest”), (2) entirely
by increasing the principal amount of the Outstanding Notes (“PIK Interest”)
or (3) 50% as Cash Interest and 50% as PIK Interest.  Cash Interest shall accrue on the Notes for
each day during such interest period at a rate per annum equal to 10.75% (the “Cash
Interest Rate”).  PIK Interest shall
accrue on the Notes for each day during such interest period at a rate per
annum equal to 11.50%, which is the Cash Interest Rate plus 75 basis
points.  Interest payable after July 15,
2011 shall be payable in the form of Cash Interest.


 


To
elect the form of interest payment with respect to any semi-annual interest
period through the Interest Payment Date immediately prior to July 24,
2011, the Company shall give the Trustee written notice of such election (an “Election
Notice”) not less than five Business Days prior to the commencement of the
related interest period, or, in the case of the first semi-annual interest
period following the Issue Date, not less than three Business days prior to the
Issue Date.  Each Election Notice shall
include information to the following effect: 
(1) the relevant Interest Payment Date; (2) whether interest
shall be paid on such Interest Payment Date 


 






	
  (6)

  	
  Include only for Initial Note when required by the
  Registration Rights Agreement.

  
	
   

  	
   

  
	
  (7)

  	
  For an Initial Additional Note, add any similar
  provision, if any, as may be agreed by the Company with respect to additional
  interest on such Initial Additional Note.

  



 


A-3

















 


entirely as Cash Interest, entirely as PIK Interest or
50% as Cash Interest and 50% as PIK Interest; and (3) in the case of any
PIK Payment (as defined below), the increase in the principal amount of the
Notes to be effective upon the relevant Interest Payment Date as a result of
such PIK Payment and the principal amount of the Notes outstanding as of such
Interest Payment Date giving effect to such PIK Payment, as determined in
accordance with the Indenture.  The
Trustee shall promptly deliver a corresponding notice to the Holders of the
Notes.  In the absence of such an
election for any semi-annual interest period with respect to the Notes,
interest on the Notes shall be payable entirely in the form specified in the
most recent Election Notice given by the Company to the Trustee.


 


PIK Interest
shall be payable on the related Interest Payment Date by increasing the
principal amount of the Outstanding Notes by an amount equal to the amount of
PIK Interest for the applicable semi-annual interest period (a “PIK Payment”),
as hereinafter provided.  If the Company
elects to pay 50% as Cash Interest and 50% as PIK Interest, such Cash Interest
and PIK Interest shall be paid to Holders of Notes pro rata in accordance with their interests.  Following an increase in the principal amount
of the Outstanding Notes as a result of a PIK Payment, the Notes shall accrue
interest on such increased principal amount from and after the related Interest
Payment Date of such PIK Payment.  On the
Interest Payment Date for such PIK Payment, the principal amount of each Note
shall be increased by the amount of the PIK Interest payable, rounded up to the
nearest $1.00, for the relevant semi-annual interest period on the principal
amount of such Note as of the relevant Regular Record Date for such Interest
Payment Date, to the credit of the Holders of such Notes on such Regular Record
Date, pro rata in accordance with
their interests, automatically without any further action by any Person.  In the case of the Global Notes, such
increase in principal amount shall be recorded in the Note Registrar’s books
and records and in the schedule to the Global Notes in accordance with the
Indenture.  Alternatively, the Company
may elect, at its option, to issue a new Note or new Notes having a principal
amount equal to the amount of the PIK Payment.


 


References
in the Indenture and in this Note to the “principal amount” of the Notes shall
include increases in the principal amount of the Outstanding Notes as a result
of any PIK Payment.


 


Payment of the principal of (and premium, if any)
and interest (including Cash Interest) on this Note will be made at the
Corporate Trust Office of the Trustee, or such other office or agency of the
Company maintained for that purpose; provided, however, that at the option of the Company, payment of Cash
Interest may be made by wire transfer of immediately available funds to the
account designated to the Company by the Person entitled thereto or by check
mailed to the address of the Person entitled thereto as such address shall
appear in the Note Register.


 


Reference is hereby made to the further provisions
of this Note set forth on the reverse hereof, which further provisions shall
for all purposes have the same effect as if set forth at this place.


 


A-4

















 


Unless the certificate of authentication hereon has
been executed by the Trustee referred to on the reverse hereof by manual
signature, this Note shall not be entitled to any benefit under the Indenture
or be valid or obligatory for any purpose.


 


A-5
















 


IN WITNESS WHEREOF, the
Company has caused this instrument to be duly executed.


 


	
   

  	
  THE SERVICEMASTER COMPANY

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  



 


 


This is one of the Notes
referred to in the within mentioned Indenture.


 


	
   

  	
  WILMINGTON TRUST FSB, as Trustee

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  Authorized
  Officer

  
	
  Dated:

  	
   

  



 


A-6

















 


(REVERSE OF NOTE)


 


This Note is one of the duly
authorized issue of 10.75%/11.50%
Senior Toggle Notes due 2015 of the Company (herein called the “Notes”),
issued under an Indenture, dated as of July 24, 2008 (herein called the “Indenture,”
which term shall have the meanings assigned to it in such instrument), among
the Company, as issuer, the Subsidiary Guarantors from time to time parties
thereto and Wilmington Trust FSB, as Trustee (herein called the “Trustee,”
which term includes any successor trustee under the Indenture), and reference
is hereby made to the Indenture for a statement of the respective rights,
limitations of rights, duties and immunities thereunder of the Company, any
other obligor upon this Note, the Trustee and the Holders of the Notes and of
the terms upon which the Notes are, and are to be, authenticated and
delivered.  The terms of the Notes
include those stated in the Indenture and those made a part of the Indenture by
reference to the Trust Indenture Act of 1939, as amended, as in effect from
time to time (the “TIA”).  The
Notes are subject to all such terms, and Holders are referred to the Indenture
and the TIA for a statement of such terms. 
Additional Notes may be issued under the Indenture which will vote as a
class with the Notes and otherwise be treated as Notes for purposes of the
Indenture.


 


All terms used in this Note
that are defined in the Indenture shall have the meanings assigned to them in
the Indenture.


 


This Note may hereafter be
entitled to certain other senior Subsidiary Guarantees made for the benefit of
the Holders.  Reference is made to Article XIII
of the Indenture for terms relating to such Subsidiary Guarantees, including
the release, termination and discharge thereof. 
Neither the Company nor any Subsidiary Guarantor shall be required to
make any notation on this Note to reflect any Subsidiary Guarantee or any such
release, termination or discharge.


 


The Notes will be redeemable,
at the Company’s option, in whole or in part, at any time and from time to time
on and after July 15, 2011 and prior to maturity at the applicable
redemption price set forth below.  Such
redemption may be made upon notice mailed by first-class mail to each Holder’s
registered address in accordance with the Indenture.  The Company may provide in such notice that
payment of the redemption price and the performance of the Company’s
obligations with respect to such redemption may be performed by another Person.  Any such redemption and notice may, in the
Company’s discretion, be subject to the satisfaction of one or more conditions
precedent, including but not limited to the occurrence of a Change of
Control.  The Notes will be so redeemable
at the following redemption prices (expressed as a percentage of principal
amount), plus accrued and unpaid
interest, if any, to the relevant Redemption Date (subject to the right of
Holders of record on the relevant Regular Record Date to receive interest due
on the relevant Interest Payment Date pursuant to Section 307 of the
Indenture), if redeemed during the 12-month period commencing on July 15
of the years set forth below:


 


A-7

















 


	
  Period

  	
   

  	
  Redemption Price

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  2011

  	
   

  	
  105.3750

  	
  %

  
	
   

  	
   

  	
   

  	
   

  
	
  2012

  	
   

  	
  102.6875

  	
  %

  
	
   

  	
   

  	
   

  	
   

  
	
  2013
  and thereafter

  	
   

  	
  100.0000

  	
  %

  



 


In addition, at any time and
from time to time on or prior to July 15, 2010, the Company at its option
may redeem Notes in an aggregate principal amount equal to up to 35% of the
original aggregate principal amount of Notes (including the principal amount of
any Additional Notes), with funds in an equal aggregate amount not exceeding
the aggregate proceeds of one or more Equity Offerings, at a redemption price
(expressed as a percentage of principal amount thereof) of 110.75%, plus
accrued and unpaid interest, if any, to the Redemption Date (subject to the
right of Holders of record on the relevant Record Date to receive interest due
on the relevant Interest Payment Date pursuant to Section 307 of the
Indenture); provided, however, that an aggregate principal
amount of Notes equal to at least 65% of the original aggregate principal
amount of Notes (including the principal amount of any Additional Notes) must
remain outstanding after each such redemption. 
The Company may make such redemption upon notice mailed by first-class
mail to each Holder’s registered address in accordance with the Indenture (but
in no event more than 180 days after the completion of the related Equity
Offering).  The Company may provide in
such notice that payment of the redemption price and performance of the Company’s
obligations with respect to such redemption may be performed by another
Person.  Any such notice may be given
prior to the completion of the related Equity Offering, and any such redemption
or notice may, at the Company’s discretion, be subject to the satisfaction of
one or more conditions precedent, including but not limited to the completion
of the related Equity Offering.


 


At any time prior to July 15,
2011, the Notes may also be redeemed or purchased (by the Company or any other
Person) in whole or in part, at the Company’s option, at a price equal to 100%
of the principal amount thereof plus
the Applicable Premium as of, and accrued but unpaid interest, if any, to, the
Redemption Date (subject to the right of Holders of record on the relevant
record date to receive interest due on the relevant interest payment date
pursuant to Section 307 of the Indenture). Such redemption or purchase may
be made upon notice mailed by first-class mail to each Holder’s registered
address in accordance with the Indenture. 
The Company may provide in such notice that payment of the Redemption
Price and performance of the Company’s obligations with respect to such
redemption or purchase may be performed by another Person.  Any such redemption, purchase or notice may,
at the Company’s discretion, be subject to the satisfaction of one or more
conditions precedent, including but not limited to the occurrence of a Change
of Control.


 


If the Notes would otherwise
constitute “applicable high yield discount obligations” within the meaning of Section 163(i)(1) of
the Code, at the end of each tax accrual period beginning with the first tax
accrual period ending after July 24, 2012 (each, an “AHYDO Redemption
Date”), the 


 


A-8

















 


Company will be required to
redeem for cash a portion of each Note then outstanding equal to the Mandatory
Principal Redemption Amount (as defined below) with respect to such accrual
period (such redemption, a “Mandatory Principal Redemption”).  The redemption price for the portion of each
Note redeemed pursuant to a Mandatory Principal Redemption will be 100% of the
principal amount of such portion plus any accrued interest thereon on the date
of redemption.  The “Mandatory
Principal Redemption Amount” with respect to an accrual period means the
portion of a Note required to be redeemed to prevent such Note from being
treated as an “applicable high yield discount obligation” within the meaning of
Section 163(i)(1) of the Code. 
No partial redemption or repurchase of the Notes prior to an
AHYDO Redemption Date pursuant to any other provision of the Indenture will
alter the Company’s obligation to make a Mandatory Principal Redemption with
respect to any Notes that remain outstanding on such AHYDO Redemption Date.


 


The Indenture provides that,
upon the occurrence after the Issue Date of a Change of Control, each Holder of
Notes will have the right to require that the Company repurchase all or any
part of such Notes at a purchase price in cash equal to 101% of the principal
amount thereof plus accrued and
unpaid interest, if any, to the date of such repurchase (subject to the right
of Holders of record on the relevant record date to receive interest due on the
relevant interest payment date); provided,
however, that the Company shall
not be obligated to repurchase Notes in the event it has exercised its right to
redeem all the Notes as described above.


 


The Notes will not be
entitled to the benefit of a sinking fund.


 


The Indenture contains
provisions for defeasance at any time of the entire indebtedness of this Note
or certain restrictive covenants and certain Events of Default with respect to
this Note, in each case upon compliance with certain conditions set forth in
the Indenture.


 


If an Event of Default with
respect to the Notes shall occur and be continuing, the principal of and
accrued but unpaid interest on the Notes may be declared due and payable in the
manner and with the effect provided in the Indenture.


 


The Indenture permits, with
certain exceptions as therein provided, the amendment thereof and the
modification of the rights and obligations of the Company and the rights of the
Holders of the Notes to be affected under the Indenture at any time by the
Company and the Trustee with the consent of the Holders of not less than a
majority in principal amount of the Outstanding Notes.  The Indenture also contains provisions permitting
the Holders of specified percentages in principal amount of the Notes at the
time Outstanding, on behalf of the Holders of all Notes, to waive compliance by
the Company with certain provisions of the Indenture and certain past defaults
under the Indenture and their consequences. 
Any such consent or waiver by the Holder of this Note shall be
conclusive and binding upon such Holder and upon all future Holders of this
Note and of any Note issued upon the registration of transfer hereof or in
exchange herefor or in lieu hereof, whether or not notation of such consent or
waiver is made upon this Note.


 


A-9

















 


As provided in and subject
to the provisions of the Indenture, the Holder of this Note shall not have the
right to institute any proceeding with respect to the Indenture or for the
appointment of a receiver or trustee or for any other remedy thereunder, unless
such Holder shall have previously given the Trustee written notice of a
continuing Event of Default with respect to the Notes, the Holders of not less
than 30% in principal amount of the Notes at the time Outstanding shall have
made written request to the Trustee to pursue such remedy, such Holder or
Holders shall have offered the Trustee reasonable security or indemnity against
any loss, liability or expense, and the Trustee shall not have received from
the Holders of a majority in principal amount of Notes at the time Outstanding
a direction inconsistent with such request, and shall have failed to institute
any such proceeding, for 60 days after receipt of such notice, request and
offer of security or indemnity.  The
foregoing shall not apply to any suit instituted by the Holder of this Note for
the enforcement of any payment of principal hereof or any premium or interest
hereon on or after the respective due dates expressed herein.


 


No reference herein to the
Indenture and no provision of this Note or of the Indenture shall alter or
impair the obligation of the Company, which is absolute and unconditional, to
pay the principal of and any premium and interest on this Note at the times,
place and rate, and in the coin or currency, herein prescribed.


 


As provided in the Indenture
and subject to certain limitations therein set forth, the transfer of this Note
is registrable in the Note Register, upon surrender of this Note for
registration of transfer at the office or agency of the Company in a Place of
Payment, duly endorsed by, or accompanied by a written instrument of transfer
in form satisfactory to the Company and the Note Registrar, duly executed by
the Holder hereof or such Holder’s attorney duly authorized in writing, and
thereupon one or more new Notes of like tenor, of authorized denominations and
for the same aggregate principal amount, will be issued to the designated
transferee or transferees.


 


The Notes shall be issuable
only in fully registered form, without coupons, and only in denominations of
the Minimum Denomination and any integral multiple of $1.00 in excess thereof,
subject to the provisions of Section 301 of the Indenture in respect of
increases in principal amount of Notes resulting from any PIK Payment.  As provided in the Indenture and subject to
certain limitations therein set forth, the Notes are exchangeable for a like
aggregate principal amount of Notes of like tenor of a different authorized
denomination, as requested by the Holder surrendering the same.


 


No service charge shall be
made for any such registration, transfer or exchange, but the Company may
require payment of a sum sufficient to cover any transfer tax or other
governmental charge payable in connection therewith.


 


The Company, any Subsidiary Guarantor, the Trustee,
the Paying Agent and any agent of any of them may treat the Person in whose
name this Note is registered as the owner hereof for the purpose of receiving
payment of principal of (and premium, if any), and (subject to Section 307
of the Indenture) interest on, such Note and for all other purposes whatsoever,
whether or not this Note be overdue, and none of the Company, any Subsidiary
Guarantor, the 


 


A-10

















 


Trustee, the Paying Agent  nor any agent of any of them shall be
affected by notice to the contrary.


 


No director, officer,
employee, incorporator or stockholder, as such, of the Company, any Subsidiary
Guarantor or any Subsidiary of any thereof shall have any liability for any
obligation of the Company, or any Subsidiary Guarantor under the Indenture, the
Notes or any Subsidiary Guarantee, or for any claim based on, in respect of, or
by reason of, any such obligation or its creation.  Each Noteholder, by accepting this Note,
hereby waives and releases all such liability. 
The waiver and release are part of the consideration for issuance of the
Notes.


 


THE INDENTURE AND THE NOTES
SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE
OF NEW YORK.  THE TRUSTEE, THE COMPANY,
ANY OTHER OBLIGOR IN RESPECT OF THE NOTES AND (BY THEIR ACCEPTANCE OF THE
NOTES) THE HOLDERS AGREE TO SUBMIT TO THE JURISDICTION OF ANY UNITED STATES
FEDERAL OR STATE COURT LOCATED IN THE BOROUGH OF MANHATTAN, IN THE CITY OF NEW
YORK IN ANY ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO THE INDENTURE OR
THE NOTES.


 


A-11

















 


[FORM OF CERTIFICATE OF
TRANSFER]


 


FOR VALUE RECEIVED the
undersigned holder hereby sell(s), assign(s) and transfer(s) unto


 


Insert Taxpayer
Identification No.


 


(Please print or typewrite
name and address including zip code of assignee)


 


	
   

  	
   

  
	
   

  	
   

  



 


the
within Note and all rights thereunder, hereby irrevocably constituting and
appointing


 


	
   

  	
   

  



 


attorney
to transfer such Note on the books of the Company with full power of
substitution in the premises.


 


	
  Check One

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  o

  	
   

  	
  (a)

  	
   

  	
  this Note is being
  transferred in compliance with the exemption from registration under the
  Securities Act of 1933, as amended, provided by Rule 144A thereunder.

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
  or

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  o

  	
   

  	
  (b)

  	
   

  	
  this Note is being
  transferred other than in accordance with (a) above
  and documents are being furnished which comply with the conditions of transfer
  set forth in this Note and the Indenture.

  



 


If neither of the foregoing
boxes is checked, the Trustee or other Note Registrar shall not be obligated to
register this Note in the name of any Person other than the Holder hereof
unless and until the conditions to any such transfer of registration set forth
herein and in Section 313 of the Indenture shall have been
satisfied.


 


 


	
  Date:

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  



 


A-12

















 


NOTICE:  The signature to this assignment must
correspond with the name as written upon the face of the within-mentioned
instrument in every particular, without alteration or any change whatsoever.


 


 


	
  Signature Guarantee:

  	
   

  	
   

  



 


 


Signatures must be
guaranteed by an “eligible guarantor institution” meeting the requirements of
the Note Registrar, which requirements include membership or participation in
the Security Transfer Agent Medallion Program (“STAMP”) or such other “signature
guarantee program” as may be determined by the Note Registrar in addition to,
or in substitution for, STAMP, all in accordance with the Securities Exchange
Act of 1934, as amended.


 


A-13

















 


TO BE COMPLETED BY PURCHASER
IF (a) ABOVE IS CHECKED.


 


The undersigned represents
and warrants that it is purchasing this Note for its own account or an account
with respect to which it exercises sole investment discretion and that it and
any such account is a “qualified institutional buyer” within the meaning of Rule 144A
under the Securities Act of 1933, as amended, and is aware that the sale to it
is being made in reliance on Rule 144A and acknowledges that it has
received such information regarding the Company as the undersigned has
requested pursuant to Rule 144A or has determined not to request such
information and that it is aware that the transferor is relying upon the
undersigned’s foregoing representations in order to claim the exemption from
registration provided by Rule 144A.


 


	
  Dated:

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  NOTICE:  To be executed by an executive

  
	
   

  	
   

  	
  officer

  



 


A-14

















 


OPTION OF HOLDER TO ELECT
PURCHASE


 


If you wish to have this
Note purchased by the Company pursuant to Section 411 or 415
of the Indenture, check the box:  o.


 


If you wish to have a
portion of this Note purchased by the Company pursuant to Section 411
or 415 of the Indenture, state the amount below:


 


$


 


	
  Date:

  	
   

  	
   

  
	
   

  	
   

  
	
  Your Signature:

  	
   

  	
   

  
	
   

  	
   

  
	
  (Sign exactly as your name
  appears on the other side of this Note)

  	
   

  
	
   

  	
   

  
	
  Signature Guarantee:

  	
   

  
				



 


Signatures must be
guaranteed by an “eligible guarantor institution” meeting the requirements of
the Note Registrar, which requirements include membership or participation in
the Security Transfer Agent Medallion Program (“STAMP”) or such other “signature
guarantee program” as may be determined by the Note Registrar in addition to,
or in substitution for, STAMP, all in accordance with the Securities Exchange
Act of 1934, as amended.


 


A-15

















 


SCHEDULE OF INCREASES OR
DECREASES IN GLOBAL NOTE


 


The following increases or
decreases in this Global Note have been made:


 


	
  Interest Payment Date

  for PIK Payments or

  Date of Exchange

  	
   

  	
  Amount
  of decreases

  in principal amount

  of this Global Note

  	
   

  	
  Amount
  of increases

  in principal amount

  of this Global Note

  	
   

  	
  Principal
  amount

  of this Global Note following

  such decreases or increases

  	
   

  	
  Signature

  of authorized officer

  of Trustee or Notes Custodian

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  



 


A-16
















 


EXHIBIT B


 


FOR THE PURPOSES OF SECTION 1271
ET SEQ. OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED, THIS NOTE IS BEING
ISSUED WITH ORIGINAL ISSUE DISCOUNT (“OID”). FOR INFORMATION ABOUT THE ISSUE
PRICE, THE AMOUNT OF OID, THE ISSUE DATE AND THE YIELD TO MATURITY WITH RESPECT
TO THIS NOTE, PLEASE CONTACT THE DIRECTOR OF FEDERAL AND INTERNATIONAL TAX AT
901-597-8942.


 


Form of Exchange Note(8)

(FACE OF NOTE)


 


THE SERVICEMASTER COMPANY


 


10.75%/11.50% Senior Toggle
Notes due 2015


 


CUSIP No. 

No.                                                                                                                                                                                  $


 


The ServiceMaster Company, a corporation duly
organized and existing under the laws of the State of Delaware (and its
successors and assigns) (the “Company”), promises to pay to
                                                ,
or registered assigns, the principal sum of $ ([] United States Dollars) [(or
such lesser or greater amount as shall be outstanding hereunder from time to
time in accordance with Sections 301, 312 and 313, as
applicable, of the Indenture referred to on the reverse hereof)](9) (the “Principal
Amount”) on July 15, 2015.


 


Interest
on this Note shall be payable semi-annually in arrears on January 15 and July 15
of each year, commencing January 15, 2009 (each, an “Interest Payment
Date”). [Interest
on this Note will accrue from the most recent date to which interest on this
Note or any of its Predecessor Notes has been paid or duly provided for or, if
no interest has been paid, from the Issue Date.](10)  [Interest on
this Note will accrue (or will be deemed to have accrued) from the most recent
date to which interest on this Note or any of its Predecessor Notes has been
paid or duly provided for or, if no such interest has been paid, from July 24,
2008(11).](12)


 






(8)           Insert any applicable
legends from Article II.


 


(9)           Include only if the
Note is issued in global form.


 


(10)         Include only for Original
Notes.


 


(11)         Insert the Interest
Payment Date immediately preceding the date of issuance of the applicable
Additional Notes, or if the date of issuance of such Additional Notes is an
Interest Payment Date, such date of issuance.


 


(12)         Include only for
Additional Notes.


 

















 


Interest
on the Notes shall be computed on the basis of a 360-day year consisting of
twelve 30-day months. The interest so payable, and punctually paid or duly
provided for, on any Interest Payment Date shall, as provided in the Indenture,
be paid to the Person in whose name this Note (or one or more Predecessor
Notes) is registered at the close of business on the Regular Record Date for
such interest, which shall be the January 1 and July 1 (whether or
not a Business Day) (a “Regular Record Date”), as the case may be,
immediately preceding such Interest Payment Date. Any interest (including Cash
Interest) on the Notes that is payable, but is not punctually paid or duly
provided for, on any Interest Payment Date (“Defaulted Interest”) shall
forthwith cease to be payable to the registered Holder on the relevant Regular
Record Date by virtue of having been such Holder; and such Defaulted Interest
may be paid by the Company, at its election, to the Person in whose name the
Notes (or one or more Predecessor Notes) are registered at the close of
business on a Special Record Date for the payment of such Defaulted Interest to
be fixed by the Trustee, notice whereof shall be given to Holders of Notes not
more than 15 days nor less than 10 days prior to such Special Record Date, or
at any time in any other lawful manner not inconsistent with the requirements
of any securities exchange on which the Notes may be listed, and upon such
notice as may be required by such exchange, all as more fully provided in Section 307
of the Indenture.


 


For
any semi-annual interest period through the Interest Payment Date immediately
prior to July 24, 2011, the Company may, at its option, elect to pay
interest on the Notes (1) entirely in cash (“Cash Interest”), (2) entirely
by increasing the principal amount of the Outstanding Notes (“PIK Interest”)
or (3) 50% as Cash Interest and 50% as PIK Interest. Cash Interest shall
accrue on the Notes for each day during such interest period at a rate per
annum equal to 10.75% (the “Cash Interest Rate”). PIK Interest shall
accrue on the Notes for each day during such interest period at a rate per
annum equal to 11.50%, which is the Cash Interest Rate plus 75 basis points. Interest
payable after July 15, 2011 shall be payable in the form of Cash Interest.


 


To
elect the form of interest payment with respect to any semi-annual interest
period through the Interest Payment Date immediately prior to July 24,
2011, the Company shall give the Trustee written notice of such election (an “Election
Notice”) not less than five Business Days prior to the commencement of the
related interest period, or, in the case of the first semi-annual interest
period following the Issue Date, not less than three Business Days prior to the
Issue Date. Each Election Notice shall include information to the following
effect: (1) the relevant Interest Payment Date; (2) whether interest
shall be paid on such Interest Payment Date entirely as Cash Interest, entirely
as PIK Interest or 50% as Cash Interest and 50% as PIK Interest; and (3) in
the case of any PIK Payment (as defined below), the increase in the principal
amount of the Notes to be effective upon the relevant Interest Payment Date as
a result of such PIK Payment and the principal amount of the Notes outstanding
as of such Interest Payment Date giving effect to such PIK Payment, as
determined in accordance with the Indenture. The Trustee shall promptly deliver
a corresponding notice to the Holders of the Notes. In the absence of such an
election for any semi-annual interest period with respect to the Notes,
interest on the


 


B-2

















 


Notes shall be payable entirely in the form specified
in the most recent Election Notice given by the Company to the Trustee.


 


PIK
Interest shall be payable on the related Interest Payment Date by increasing
the principal amount of the Outstanding Notes by an amount equal to the amount
of PIK Interest for the applicable semi-annual interest period (a “PIK
Payment”), as hereinafter provided. If the Company elects to pay 50% as
Cash Interest and 50% as PIK Interest, such Cash Interest and PIK Interest
shall be paid to Holders of Notes pro rata
in accordance with their interests. Following an increase in the principal
amount of the Outstanding Notes as a result of a PIK Payment, the Notes shall
accrue interest on such increased principal amount from and after the related
Interest Payment Date of such PIK Payment. On the Interest Payment Date for
such PIK Payment, the principal amount of each Note shall be increased by the
amount of the PIK Interest payable, rounded up to the nearest $1.00, for the
relevant semi-annual interest period on the principal amount of such Note as of
the relevant Regular Record Date for such Interest Payment Date, to the credit
of the Holders of such Notes on such Regular Record Date, pro rata in accordance with their
interests, automatically without any further action by any Person. In the case
of the Global Notes, such increase in principal amount shall be recorded in the
Note Registrar’s books and records and in the schedule to the Global Notes in
accordance with the Indenture. Alternatively, the Company may elect, at its
option, to issue a new Note or new Notes having a principal amount equal to the
amount of the PIK Payment.


 


References
in the Indenture and in this Note to the “principal amount” of the Notes shall
include increases in the principal amount of the Outstanding Notes as a result
of any PIK Payment.


 


Payment of the principal of (and premium, if any)
and interest (including Cash Interest) on this Note will be made at the
Corporate Trust Office of the Trustee, or such other office or agency of the
Company maintained for that purpose; provided, however, that at the option of the Company, payment of Cash
Interest may be made by wire transfer of immediately available funds to the
account designated to the Company by the Person entitled thereto or by check
mailed to the address of the Person entitled thereto as such address shall
appear in the Note Register.


 


Reference is hereby made to the further provisions
of this Note set forth on the reverse hereof, which further provisions shall
for all purposes have the same effect as if set forth at this place.


 


Unless the certificate of authentication hereon has
been executed by the Trustee referred to on the reverse hereof by manual
signature, this Note shall not be entitled to any benefit under the Indenture
or be valid or obligatory for any purpose.


 


B-3

















 


IN WITNESS WHEREOF, the Company has caused this
instrument to be duly executed.


 


	
   

  	
  THE
  SERVICEMASTER COMPANY

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  



 


 


This is one of the Notes referred to in the within
mentioned Indenture.


 


	
   

  	
  WILMINGTON
  TRUST FSB, as Trustee

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  Authorized Officer

  
	
   

  	
   

  
	
  Dated:

  	
   

  



 


B-4

















 


(REVERSE OF NOTE)


 


This Note is one of the duly authorized issue of 10.75%/11.50% Senior Toggle Notes due 2015 of the Company
(herein called the “Notes”), issued under an Indenture, dated as of July 24,
2008 (herein called the “Indenture,” which term shall have the meanings
assigned to it in such instrument), among the Company, as issuer, the
Subsidiary Guarantors from time to time parties thereto and Wilmington Trust
FSB, as Trustee (herein called the “Trustee,” which term includes any
successor trustee under the Indenture), and reference is hereby made to the
Indenture for a statement of the respective rights, limitations of rights,
duties and immunities thereunder of the Company, any other obligor upon this
Note, the Trustee and the Holders of the Notes and of the terms upon which the
Notes are, and are to be, authenticated and delivered. The terms of the Notes
include those stated in the Indenture and those made a part of the Indenture by
reference to the Trust Indenture Act of 1939, as amended, as in effect from
time to time (the “TIA”). The Notes are subject to all such terms, and
Holders are referred to the Indenture and the TIA for a statement of such
terms. Additional Notes may be issued under the Indenture which will vote as a
class with the Notes and otherwise be treated as Notes for purposes of the
Indenture.


 


All terms used in this Note that are defined in the
Indenture shall have the meanings assigned to them in the Indenture.


 


This Note may hereafter be entitled to certain other
senior Subsidiary Guarantees made for the benefit of the Holders. Reference is
made to Article XIII of the Indenture for terms relating to such
Subsidiary Guarantees, including the release, termination and discharge
thereof. Neither the Company nor any Subsidiary Guarantor shall be required to
make any notation on this Note to reflect any Subsidiary Guarantee or any such
release, termination or discharge.


 


The Notes will be redeemable, at the Company’s
option, in whole or in part, at any time and from time to time on and after July 15,
2011 and prior to maturity at the applicable redemption price set forth below. Such
redemption may be made upon notice mailed by first-class mail to each Holder’s
registered address in accordance with the Indenture. The Company may provide in
such notice that payment of the redemption price and the performance of the
Company’s obligations with respect to such redemption may be performed by
another Person. Any such redemption and notice may, in the Company’s
discretion, be subject to the satisfaction of one or more conditions precedent,
including but not limited to the occurrence of a Change of Control. The Notes
will be so redeemable at the following redemption prices (expressed as a
percentage of principal amount), plus
accrued and unpaid interest, if any, to the relevant Redemption Date (subject
to the right of Holders of record on the relevant Regular Record Date to
receive interest due on the relevant Interest Payment Date pursuant to Section 307
of the Indenture), if redeemed during the 12-month period commencing on July 15
of the years set forth below:


 


B-5

















 


	
  Period

  	
   

  	
  Redemption Price

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  2011

  	
   

  	
  105.3750

  	
  %

  
	
   

  	
   

  	
   

  	
   

  
	
  2012

  	
   

  	
  102.6875

  	
  %

  
	
   

  	
   

  	
   

  	
   

  
	
  2013 and
  thereafter

  	
   

  	
  100.0000

  	
  %

  



 


In addition, at any time and from time to time on or
prior to July 15, 2010, the Company at its option may redeem Notes in an
aggregate principal amount equal to up to 35% of the original aggregate
principal amount of Notes (including the principal amount of any Additional
Notes), with funds in an equal aggregate amount not exceeding the aggregate
proceeds of one or more Equity Offerings, at a redemption price (expressed as a
percentage of principal amount thereof) of 110.75%, plus accrued and unpaid interest, if any, to the Redemption
Date (subject to the right of Holders of record on the relevant Record Date to
receive interest due on the relevant Interest Payment Date pursuant to Section 307
of the Indenture); provided, however, that an aggregate principal
amount of Notes equal to at least 65% of the original aggregate principal
amount of Notes (including the principal amount of any Additional Notes) must
remain outstanding after each such redemption. The Company may make such
redemption upon notice mailed by first-class mail to each Holder’s registered
address in accordance with the Indenture (but in no event more than 180 days
after the completion of the related Equity Offering). The Company may provide
in such notice that payment of the redemption price and performance of the
Company’s obligations with respect to such redemption may be performed by
another Person. Any such notice may be given prior to the completion of the
related Equity Offering, and any such redemption or notice may, at the Company’s
discretion, be subject to the satisfaction of one or more conditions precedent,
including but not limited to the completion of the related Equity Offering.


 


At any time prior to July 15, 2011, the Notes
may also be redeemed or purchased (by the Company or any other Person) in whole
or in part, at the Company’s option, at a price equal to 100% of the principal
amount thereof plus the
Applicable Premium as of, and accrued but unpaid interest, if any, to, the
Redemption Date (subject to the right of Holders of record on the relevant
record date to receive interest due on the relevant interest payment date
pursuant to Section 307 of the Indenture). Such redemption or purchase may
be made upon notice mailed by first-class mail to each Holder’s registered
address in accordance with the Indenture. The Company may provide in such
notice that payment of the Redemption Price and performance of the Company’s
obligations with respect to such redemption or purchase may be performed by
another Person. Any such redemption, purchase or notice may, at the Company’s
discretion, be subject to the satisfaction of one or more conditions precedent,
including but not limited to the occurrence of a Change of Control.


 


If the Notes would otherwise constitute “applicable
high yield discount obligations” within the meaning of Section 163(i)(1) of
the Code, at the end of each tax accrual period beginning with the first tax
accrual period ending after July 24, 2012 (each, an “AHYDO Redemption
Date”), the


 


B-6

















 


Company will be required to
redeem for cash a portion of each Note then outstanding equal to the Mandatory
Principal Redemption Amount (as defined below) with respect to such accrual
period (such redemption, a “Mandatory Principal Redemption”). The
redemption price for the portion of each Note redeemed pursuant to a Mandatory
Principal Redemption will be 100% of the principal amount of such portion plus
any accrued interest thereon on the date of redemption. The “Mandatory
Principal Redemption Amount” with respect to an accrual period means the
portion of a Note required to be redeemed to prevent such Note from being
treated as an “applicable high yield discount obligation” within the meaning of
Section 163(i)(1) of the Code. No partial redemption or
repurchase of the Notes prior to an AHYDO Redemption Date pursuant to any other
provision of the Indenture will alter the Company’s obligation to make a
Mandatory Principal Redemption with respect to any Notes that remain
outstanding on such AHYDO Redemption Date.


 


The Indenture provides that, upon the occurrence
after the Issue Date of a Change of Control, each Holder of Notes will have the
right to require that the Company repurchase all or any part of such Notes at a
purchase price in cash equal to 101% of the principal amount thereof plus accrued and unpaid interest, if any,
to the date of such repurchase (subject to the right of Holders of record on the
relevant record date to receive interest due on the relevant interest payment
date); provided, however, that the Company shall not be
obligated to repurchase Notes in the event it has exercised its right to redeem
all the Notes as described above.


 


The Notes will not be entitled to the benefit of a
sinking fund.


 


The Indenture contains provisions for defeasance at
any time of the entire indebtedness of this Note or certain restrictive
covenants and certain Events of Default with respect to this Note, in each case
upon compliance with certain conditions set forth in the Indenture.


 


If an Event of Default with respect to the Notes
shall occur and be continuing, the principal of and accrued but unpaid interest
on the Notes may be declared due and payable in the manner and with the effect
provided in the Indenture.


 


The Indenture permits, with certain exceptions as
therein provided, the amendment thereof and the modification of the rights and
obligations of the Company and the rights of the Holders of the Notes to be
affected under the Indenture at any time by the Company and the Trustee with
the consent of the Holders of not less than a majority in principal amount of
the Outstanding Notes. The Indenture also contains provisions permitting the
Holders of specified percentages in principal amount of the Notes at the time
Outstanding, on behalf of the Holders of all Notes, to waive compliance by the
Company with certain provisions of the Indenture and certain past defaults
under the Indenture and their consequences. Any such consent or waiver by the
Holder of this Note shall be conclusive and binding upon such Holder and upon
all future Holders of this Note and of any Note issued upon the registration of
transfer hereof or in exchange herefor or in lieu hereof, whether or not
notation of such consent or waiver is made upon this Note.


 


B-7

















 


As provided in and subject to the provisions of the
Indenture, the Holder of this Note shall not have the right to institute any proceeding
with respect to the Indenture or for the appointment of a receiver or trustee
or for any other remedy thereunder, unless such Holder shall have previously
given the Trustee written notice of a continuing Event of Default with respect
to the Notes, the Holders of not less than 30% in principal amount of the Notes
at the time Outstanding shall have made written request to the Trustee to
pursue such remedy, such Holder or Holders shall have offered the Trustee
reasonable security or indemnity against any loss, liability or expense, and
the Trustee shall not have received from the Holders of a majority in principal
amount of Notes at the time Outstanding a direction inconsistent with such
request, and shall have failed to institute any such proceeding, for 60 days
after receipt of such notice, request and offer of security or indemnity. The
foregoing shall not apply to any suit instituted by the Holder of this Note for
the enforcement of any payment of principal hereof or any premium or interest
hereon on or after the respective due dates expressed herein.


 


No reference herein to the Indenture and no
provision of this Note or of the Indenture shall alter or impair the obligation
of the Company, which is absolute and unconditional, to pay the principal of
and any premium and interest on this Note at the times, place and rate, and in
the coin or currency, herein prescribed.


 


As provided in the Indenture and subject to certain
limitations therein set forth, the transfer of this Note is registrable in the
Note Register, upon surrender of this Note for registration of transfer at the
office or agency of the Company in a Place of Payment, duly endorsed by, or
accompanied by a written instrument of transfer in form satisfactory to the
Company and the Note Registrar, duly executed by the Holder hereof or such
Holder’s attorney duly authorized in writing, and thereupon one or more new
Notes of like tenor, of authorized denominations and for the same aggregate
principal amount, will be issued to the designated transferee or transferees.


 


The Notes shall be issuable only in fully registered
form, without coupons, and only in denominations of the Minimum Denomination
and any integral multiple of $1.00 in excess thereof, subject to the provisions
of Section 301 of the Indenture in respect of increases in principal
amount of Notes resulting from any PIK Payment. As provided in the Indenture
and subject to certain limitations therein set forth, the Notes are
exchangeable for a like aggregate principal amount of Notes of like tenor of a
different authorized denomination, as requested by the Holder surrendering the
same.


 


No service charge shall be made for any such
registration, transfer or exchange, but the Company may require payment of a
sum sufficient to cover any transfer tax or other governmental charge payable
in connection therewith.


 


The
Company, any Subsidiary Guarantor, the Trustee, the Paying Agent and any agent
of any of them may treat the Person in whose name this Note is registered as
the owner hereof for the purpose of receiving payment of principal of (and
premium, if any), and (subject to Section 307 of the Indenture) interest
on, such Note and for all other purposes whatsoever, whether or not this Note
be overdue, and none of the Company, any Subsidiary Guarantor, the


 


B-8

















 


Trustee, the Paying Agent nor any agent of any of them
shall be affected by notice to the contrary.


 


No director, officer, employee, incorporator or
stockholder, as such, of the Company, any Subsidiary Guarantor or any
Subsidiary of any thereof shall have any liability for any obligation of the
Company, or any Subsidiary Guarantor under the Indenture, the Notes or any
Subsidiary Guarantee, or for any claim based on, in respect of, or by reason of,
any such obligation or its creation. Each Noteholder, by accepting this Note,
hereby waives and releases all such liability. The waiver and release are part
of the consideration for issuance of the Notes.


 


THE INDENTURE AND THE NOTES SHALL BE GOVERNED BY,
AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK. THE
TRUSTEE, THE COMPANY, ANY OTHER OBLIGOR IN RESPECT OF THE NOTES AND (BY THEIR
ACCEPTANCE OF THE NOTES) THE HOLDERS AGREE TO SUBMIT TO THE JURISDICTION OF ANY
UNITED STATES FEDERAL OR STATE COURT LOCATED IN THE BOROUGH OF MANHATTAN, IN
THE CITY OF NEW YORK IN ANY ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO
THE INDENTURE OR THE NOTES.


 


B-9

















 


[FORM OF CERTIFICATE OF TRANSFER]


 


FOR VALUE RECEIVED the undersigned holder hereby
sell(s), assign(s) and transfer(s) unto


 


Insert Taxpayer Identification No.


 


(Please print or typewrite name and address
including zip code of assignee)


 


	
   

  	
   

  
	
   

  	
   

  



 


the within Note and all
rights thereunder, hereby irrevocably constituting and appointing


 


	
   

  	
   

  



 


attorney to transfer such
Note on the books of the Company with full power of substitution in the
premises.


 


Check One


 


o                                    (a)           this Note is
being transferred in compliance with the exemption from registration under the
Securities Act of 1933, as amended, provided by Rule 144A thereunder.


 


or


 


o                                    (b)           this Note is
being transferred other than in accordance with (a) above
and documents are being furnished which comply with the conditions of transfer
set forth in this Note and the Indenture.


 


If neither of the foregoing boxes is checked,
the Trustee or other Note Registrar shall not be obligated to register this
Note in the name of any Person other than the Holder hereof unless and until
the conditions to any such transfer of registration set forth herein and in Section 313
of the Indenture shall have been satisfied.


 


	
  Date:

  	
   

  	
   

  
	
  



  	
   

  



 


B-10

















 


	
   

  	
  NOTICE: The signature to
  this assignment must correspond with the name as written upon the face of the
  within-mentioned instrument in every particular, without alteration or any
  change whatsoever.

  
	
   

  	
   

  



 


	
  Signature Guarantee:

  	
   

  	
   

  



 


 


Signatures must be guaranteed by an “eligible
guarantor institution” meeting the requirements of the Note Registrar, which
requirements include membership or participation in the Security Transfer Agent
Medallion Program (“STAMP”) or such other “signature guarantee program”
as may be determined by the Note Registrar in addition to, or in substitution
for, STAMP, all in accordance with the Securities Exchange Act of 1934, as
amended.


 


B-11
















 


TO BE COMPLETED BY PURCHASER IF (a) ABOVE
IS CHECKED.


 


The undersigned represents and warrants that it is
purchasing this Note for its own account or an account with respect to which it
exercises sole investment discretion and that it and any such account is a “qualified
institutional buyer” within the meaning of Rule 144A under the Securities
Act of 1933, as amended, and is aware that the sale to it is being made in
reliance on Rule 144A and acknowledges that it has received such
information regarding the Company as the undersigned has requested pursuant to Rule 144A
or has determined not to request such information and that it is aware that the
transferor is relying upon the undersigned’s foregoing representations in order
to claim the exemption from registration provided by Rule 144A.


 


	
  Dated:

  	
   

  	
   

  	
   

  
	
   

  	
  NOTICE:  To
  be executed by an executive

  
	
   

  	
  officer

  



 


B-12

















 


OPTION OF HOLDER TO ELECT PURCHASE


 


If you wish to have this Note purchased by the
Company pursuant to Section 411 or 415 of the Indenture,
check the box:  o.


 


If you wish to have a portion of this Note purchased
by the Company pursuant to Section 411 or 415 of the
Indenture, state the amount below:


 


$          


 


	
  Date:

  	
   

  	
   

  
	
   

  
	
  Your
  Signature:

  	
   

  	
   

  
				



 


(Sign exactly as your name appears on the
other side of this Note)


 


Signature Guarantee:


 


Signatures must be guaranteed by an “eligible
guarantor institution” meeting the requirements of the Note Registrar, which
requirements include membership or participation in the Security Transfer Agent
Medallion Program (“STAMP”) or such other “signature guarantee program”
as may be determined by the Note Registrar in addition to, or in substitution
for, STAMP, all in accordance with the Securities Exchange Act of 1934, as
amended.


 


B-13

















 


SCHEDULE OF INCREASES OR DECREASES IN GLOBAL NOTE


 


The following increases or decreases in this Global
Note have been made:


 


	
  Interest Payment Date for PIK Payments or 

  Date of Exchange

  	
   

  	
  Amount of decreases 

  in principal amount 

  of this Global Note

  	
   

  	
  Amount of increases 

  in principal amount 

  of this Global Note

  	
   

  	
  Principal amount 

  of this Global Note following 

  such decreases or increases

  	
   

  	
  Signature 

  of authorized officer 

  of Trustee or Notes Custodian

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  



 


B-14

















 


EXHIBIT C


 


Form of
Certificate of Beneficial Ownership


 


On or after
[                    ],
20[  ]


 


WILMINGTON TRUST FSB

Normandale Lake Center

8400 Normandale Lake Blvd., Suite 925


Bloomington, MN 55437

Attention: Corporate Client Services


 


Re:                                The ServiceMaster Company (the “Company”)


 


10.75%/11.50% Senior Toggle Notes due 2015 (the “Notes”)


 


Ladies and Gentlemen:


 


This letter relates to
$                
principal amount of Notes represented by the offshore [temporary] global note
certificate (the “[Temporary] Regulation S Global Note”).  Pursuant to Section 313(3) of the
Indenture dated as of July 24, 2008 relating to the Notes (the “Indenture”),
we hereby certify that (1) we are the beneficial owner of such principal
amount of Notes represented by the [Temporary] Regulation S Global Note
and (2) we are either (i) a Non-U.S. Person to whom the Notes could
be transferred in accordance with Rule 903 or 904 of Regulation S (“Regulation S”)
promulgated under the Securities Act of 1933, as amended (the “Act”) or (ii) a
U.S. Person who purchased securities in a transaction that did not require
registration under the Act.


 


You, the Company and
counsel for the Company are entitled to rely upon this letter and are
irrevocably authorized to produce this letter or a copy hereof to any
interested party in any administrative or legal proceedings or official inquiry
with respect to the matters covered hereby. 
Terms used in this certificate have the meanings set forth in
Regulation S.


 


	
   

  	
  Very truly yours,

  
	
   

  	
   

  
	
   

  	
  [Name of Holder]

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Authorized Signature

  



 

















 


EXHIBIT D


 


Form of
Regulation S Certificate


 


Regulation S
Certificate


 


WILMINGTON TRUST FSB

Normandale Lake Center

8400 Normandale Lake Blvd., Suite 925


Bloomington, MN 55437

Attention: Corporate Client Services


 


Re:                                The ServiceMaster Company (the “Company”)


 


10.75%/11.50% Senior Toggle Notes due 2015 (the “Notes”)


 


Ladies and Gentlemen:


 


In connection with our
proposed sale of
$                
aggregate principal amount of Notes, we confirm that such sale has been
effected pursuant to and in accordance with Regulation S (“Regulation S”)
under the Securities Act of 1933, as amended (the “Securities Act”), and
accordingly, we hereby certify as follows:


 


1.  The offer of the Notes was not made to a
person in the United States (unless such person or the account held by it for
which it is acting is excluded from the definition of “U.S. person” pursuant to
Rule 902(k)(2)(vi) or 902(k)(2)(i) of Regulation S under
the circumstances described in Rule 902(h)(3) of Regulation S)
or specifically targeted at an identifiable group of U.S. citizens abroad.


 


2.  Either (a) at the time the buy order was
originated, the buyer was outside the United States or we and any person acting
on our behalf reasonably believed that the buyer was outside the United States
or (b) the transaction was executed in, on or through the facilities of a
designated offshore securities market, and neither we nor any person acting on
our behalf knows that the transaction was pre-arranged with a buyer in the
United States.


 


3.  No directed selling efforts have been made in
the United States in contravention of the requirements of Rule 903(a)(2) or
Rule 904(a)(2) of Regulation S, as applicable.


 


4.  The proposed transfer of Notes is not part of
a plan or scheme to evade the registration requirements of the Securities Act.


 


5.  If we are a dealer or a person receiving a
selling concession or other fee or remuneration in respect of the Notes, and
the proposed transfer takes place before end of the distribution compliance
period under Regulation S, or we are an officer or 


 

















 


director of the Company
or a distributor, we certify that the proposed transfer is being made in accordance
with the provisions of Rules 903 and 904 of Regulation S.


 


6.  If the proposed transfer takes place before
the end of the distribution compliance period under Regulation S, the
beneficial interest in the Notes so transferred will be held immediately thereafter
through Euroclear (as defined in such Indenture) or Clearstream (as defined in
such Indenture).


 


7.  We have advised the transferee of the
transfer restrictions applicable to the Notes.


 


You, the Company and
counsel for the Company are entitled to rely upon this Certificate and are
irrevocably authorized to produce this Certificate or a copy hereof to any
interested party in any administrative or legal proceeding or official inquiry
with respect to the matters covered hereby. 
Terms used in this certificate have the meanings set forth in
Regulation S.


 


	
   

  	
  Very truly yours,

  
	
   

  	
   

  
	
   

  	
  [NAME OF SELLER]

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  
	
   

  	
   

  	
  Address:

  
				



 


Date of this
Certificate: 
                              
    , 20       


 


D-2

















 


EXHIBIT E


 


Form of
Supplemental Indenture in Respect of Subsidiary Guarantee


 


SUPPLEMENTAL INDENTURE, dated as of
[                  ]
(this “Supplemental Indenture”), among [name of Guarantor(s)] (the “Subsidiary
Guarantor(s)”), and The ServiceMaster Company, a corporation duly organized
and existing under the laws of the State of Delaware (and its successors and
assigns, the “Company”), and each other then existing Subsidiary
Guarantor under the Indenture referred to below (the “Existing Guarantors”),
and [Insert name of institution appointed as Trustee],
as Trustee under the Indenture referred to below.


 


W I T N E S S E T H:


 


WHEREAS, the Company, any Existing Guarantors and the Trustee have
heretofore become parties to an Indenture, dated as of  July 24, 2008, (as amended,
supplemented, waived or otherwise modified, the “Indenture”), providing
for the issuance of 10.75%/11.50% Senior Toggle Notes due 2015 of the Company
(the “Notes”);


 


WHEREAS, Section 1308 of the Indenture provides that the Company
is required to cause the Subsidiary Guarantors to execute and deliver to the
Trustee a supplemental indenture pursuant to which the Subsidiary Guarantors
shall guarantee the Company’s Subsidiary Guaranteed Obligations under the Notes
pursuant to a Subsidiary Guarantee on the terms and conditions set forth herein
and in Article XIII of the Indenture;


 


WHEREAS, each Subsidiary Guarantor desires to enter into such
supplemental indenture for good and valuable consideration, including
substantial economic benefit in that the financial performance and condition of
such Subsidiary Guarantor is dependent on the financial performance and
condition of the Company, the obligations hereunder of which such Subsidiary
Guarantor has guaranteed, and on such Subsidiary Guarantor’s access to working
capital through the Company’s access to revolving credit borrowings under the
Senior Credit Agreements; and


 


WHEREAS, pursuant to Section 901 of the Indenture, the parties
hereto are authorized to execute and deliver this Supplemental Indenture to
amend the Indenture, without the consent of any Holder;


 


NOW, THEREFORE, in consideration of the foregoing and for other good
and valuable consideration, the receipt of which is hereby acknowledged, the
Subsidiary Guarantors, the Company, the Existing Guarantors and the Trustee
mutually covenant and agree for the benefit of the Holders of the Notes as
follows:


 


1.  Defined Terms.  As used in this Supplemental Indenture, terms
defined in the Indenture or in the preamble or recital hereto are used herein
as therein defined.  The words “herein,” “hereof”
and “hereby” and other words of similar import used in this Supplemental
Indenture refer to this Supplemental Indenture as a whole and not to any
particular Section hereof.


 

















 


2.  Agreement to Guarantee.  [The] [Each] Subsidiary Guarantor hereby
agrees, jointly and severally with [all] [any] other Subsidiary Guarantors and
fully and unconditionally, to guarantee the Subsidiary Guaranteed Obligations
under the Indenture and the Notes on the terms and subject to the conditions
set forth in Article XIII of the Indenture and to be bound by (and shall
be entitled to the benefits of) all other applicable provisions of the
Indenture as a Subsidiary Guarantor.


 


3.  Termination, Release and
Discharge.  [The] [Each] Subsidiary
Guarantor’s Subsidiary Guarantee shall terminate and be of no further force or
effect, and [the] [each] Subsidiary Guarantor shall be released and discharged
from all obligations in respect of such Subsidiary Guarantee, as and when
provided in Section 1303 of the Indenture.


 


4.  Parties.  Nothing in this Supplemental Indenture is
intended or shall be construed to give any Person, other than the Holders and
the Trustee, any legal or equitable right, remedy or claim under or in respect
of [the] [each] Subsidiary Guarantor’s Subsidiary Guarantee or any provision
contained herein or in Article XIII of the Indenture.


 


5.  Governing Law.  THIS SUPPLEMENTAL INDENTURE SHALL BE GOVERNED
BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.  THE TRUSTEE, THE COMPANY, ANY OTHER OBLIGOR
IN RESPECT OF THE NOTES AND (BY THEIR ACCEPTANCE OF THE NOTES) THE HOLDERS
AGREE TO SUBMIT TO THE JURISDICTION OF ANY UNITED STATES FEDERAL OR STATE COURT
LOCATED IN THE BOROUGH OF MANHATTAN, IN THE CITY OF NEW YORK IN ANY ACTION OR
PROCEEDING ARISING OUT OF OR RELATING TO THIS SUPPLEMENTAL INDENTURE.


 


6.  Ratification of Indenture;
Supplemental Indentures Part of Indenture.  Except as expressly amended hereby, the
Indenture is in all respects ratified and confirmed and all the terms,
conditions and provisions thereof shall remain in full force and effect.  This Supplemental Indenture shall form a part
of the Indenture for all purposes, and every Holder of Notes heretofore or
hereafter authenticated and delivered shall be bound hereby.  The Trustee makes no representation or
warranty as to the validity or sufficiency of this Supplemental Indenture or as
to the accuracy of the recitals to this Supplemental Indenture.


 


7.  Counterparts.  The parties hereto may sign one or more
copies of this Supplemental Indenture in counterparts, all of which together
shall constitute one and the same agreement.


 


8.  Headings.  The Section headings herein are for
convenience of reference only and shall not be deemed to alter or affect the
meaning or interpretation of any provisions hereof.


 


E-2

















 


IN WITNESS WHEREOF, the parties hereto have caused this Supplemental
Indenture to be duly executed as of the date first above written.


 


	
   

  	
  [NAME OF SUBSIDIARY
  GUARANTOR(S)],

  as Subsidiary Guarantor

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  THE SERVICEMASTER
  COMPANY

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  [INSERT NAME OF INSTITUTION APPOINTED 

  AS TRUSTEE], as Trustee

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  
							



 


E-3

















 


EXHIBIT F


 


Form of
Certificate from Acquiring Institutional Accredited Investors


 


WILMINGTON TRUST FSB

Normandale Lake Center

8400 Normandale Lake Blvd., Suite 925


Bloomington, MN 55437

Attention: Corporate Client Services


 


Re:                                The ServiceMaster Company (the “Company”)


 


10.75%/11.50% Senior Toggle Notes due 2015 (the “Notes”)                               


 


Ladies and Gentlemen:


 


In
connection with our proposed sale of $                
aggregate principal amount of Notes, we confirm that:


 


1.             We understand that any subsequent
transfer of the Notes is subject to certain restrictions and conditions set
forth in the Indenture dated as of July 24, 2008 relating to the Notes
(the “Indenture”) and the undersigned agrees to be bound by, and not to
resell, pledge or otherwise transfer the Notes except in compliance with, such
restrictions and conditions and the Securities Act of 1933, as amended (the “Securities
Act”).


 


2.             We understand that the Notes have
not been registered under the Securities Act or any other applicable securities
law, and that the Notes may not be offered, sold or otherwise transferred
except as permitted in the following sentence. 
We agree, on our own behalf and on behalf of any accounts for which we
are acting as hereinafter stated, that if we should offer, sell, transfer,
pledge, hypothecate or otherwise dispose of any Notes within one year after the
original issuance of the Notes, we will do so only (A) to the Company, (B) inside
the United States to a “qualified institutional buyer” in compliance with Rule 144A
under the Securities Act, (C) inside the United States to an institutional
“accredited investor” (as defined below) that, prior to such transfer, furnishes
to you a signed letter substantially in the form of this letter, (D) outside
the United States to a foreign person in compliance with Rule 904 of
Regulation S under the Securities Act, (E) pursuant to the exemption
from registration provided by Rule 144 under the Securities Act (if
available), or (F) pursuant to an effective registration statement under
the Securities Act, and we further agree to provide to any person purchasing
any of the Notes from us a notice advising such purchaser that resales of the
Notes are restricted as stated herein and in the Indenture.


 


3.             We understand that, on any proposed
transfer of any Notes prior to the later of the original issue date of the
Notes and the last date the Notes were held by an affiliate of the Company pursuant
to paragraphs 2(C), 2(D) and 2(E) above, we will be required to
furnish to you and the Company such certifications, legal opinions and other
information as you and the Company may reasonably require to confirm that the
proposed transfer complies with the 


 

















 


foregoing restrictions.  We further understand that the Notes
purchased by us will bear a legend to the foregoing effect.


 


4.             We are an institutional “accredited
investor” (as defined in Rule 501(a)(1), (2), (3) or (7) under
the Securities Act) and have such knowledge and experience in financial and
business matters as to be capable of evaluating the merits and risks of our investment
in the Notes, and we and any accounts for which we are acting are acquiring the
Notes for investment purposes and not with a view to, or offer or sale in
connection with, any distribution in violation of the Securities Act, and we
are each able to bear the economic risk of our or its investment.


 


5.             We are acquiring the Notes
purchased by us for our own account or for one or more accounts (each of which
is an institutional “accredited investor”) as to each of which we
exercise sole investment discretion.


 


You,
the Company, and counsel for the Company are entitled to rely upon this letter
and are irrevocably authorized to produce this letter or a copy hereof to any
interested party in any administrative or legal proceedings or official inquiry
with respect to the matters covered hereby.


 


	
   

  	
  Very
  truly yours,

  
	
   

  	
   

  
	
   

  	
  (Name
  of Transferee)

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Authorized Signature

  



 


F-2