Exhibit 4.35


 




 


 





CLEAN HARBORS, INC.,

as Issuer,




the GUARANTORS named herein


 


and


 


U.S. BANK NATIONAL ASSOCIATION,

as Trustee and Notes Collateral Agent


 






 


INDENTURE


 






 


Dated as of August 14, 2009


 


75/8% Senior Secured Notes due
2016


 


 




 




















 


CROSS-REFERENCE TABLE


 


	
  TIA
  Section

  	
   

  	
  Indenture Section

  
	
  310(a)(1)

  	
   

  	
  7.10

  
	
  (a)(2)

  	
   

  	
  7.10

  
	
  (a)(3)

  	
   

  	
  N.A.

  
	
  (a)(4)

  	
   

  	
  N.A.

  
	
  (a)(5)

  	
   

  	
  7.8;
  7.10

  
	
  (b)

  	
   

  	
  7.8;
  7.10; 13.2

  
	
  (c)

  	
   

  	
  N.A.

  
	
  311(a)

  	
   

  	
  7.11

  
	
  (b)

  	
   

  	
  7.11

  
	
  (c)

  	
   

  	
  N.A.

  
	
  312(a)

  	
   

  	
  2.5

  
	
  (b)

  	
   

  	
  13.3

  
	
  (c)

  	
   

  	
  13.3

  
	
  313(a)

  	
   

  	
  7.6

  
	
  (b)(1)

  	
   

  	
  7.6

  
	
  (b)(2)

  	
   

  	
  7.6

  
	
  (c)

  	
   

  	
  7.6;
  13.2

  
	
  (d)

  	
   

  	
  7.6

  
	
  314(a)

  	
   

  	
  4.8;
  4.10

  
	
  (b)

  	
   

  	
  10.2.

  
	
  (c)(1)

  	
   

  	
  7.2;
  10.2; 13.4; 13.5

  
	
  (c)(2)

  	
   

  	
  7.2;
  10.2; 13.4; 13.5

  
	
  (c)(3)

  	
   

  	
  N.A.

  
	
  (d)

  	
   

  	
  10.5.

  
	
  (e)

  	
   

  	
  13.5

  
	
  (f)

  	
   

  	
  N.A.

  
	
  315(a)

  	
   

  	
  7.1(b)

  
	
  (b)

  	
   

  	
  7.5

  
	
  (c)

  	
   

  	
  7.1

  
	
  (d)

  	
   

  	
  6.5;
  7.1(c)

  
	
  (e)

  	
   

  	
  6.11

  
	
  316(a)(last
  sentence)

  	
   

  	
  2.9

  
	
  (a)(1)(A)

  	
   

  	
  6.5

  
	
  (a)(1)(B)

  	
   

  	
  6.4

  
	
  (a)(2)

  	
   

  	
  N.A.

  
	
  (b)

  	
   

  	
  6.7

  
	
  (c)

  	
   

  	
  9.4

  
	
  317(a)(1)

  	
   

  	
  6.8

  
	
  (a)(2)

  	
   

  	
  6.9

  
	
  (b)

  	
   

  	
  2.4

  
	
  318(a)

  	
   

  	
  13.1

  
	
  (c)

  	
   

  	
  13.1

  



 






N.A.
means Not Applicable.


Note:  This
Cross-Reference Table shall not, for any purpose, be deemed to be a part of
this Indenture.


 

















 


TABLE OF CONTENTS


 


	
   

  	
   

  	
  Page

  
	
   

  	
   

  	
   

  
	
  ARTICLE ONE

  
	
   

  	
   

  	
   

  
	
  DEFINITIONS AND INCORPORATION BY REFERENCE

  
	
   

  	
   

  	
   

  
	
  1.1.

  	
  DEFINITIONS

  	
  1

  
	
  1.2.

  	
  INCORPORATION BY REFERENCE OF TIA

  	
  34

  
	
  1.3.

  	
  RULES OF CONSTRUCTION

  	
  35

  
	
   

  	
   

  	
   

  
	
  ARTICLE TWO

  
	
   

  	
   

  	
   

  
	
  THE SECURITIES

  
	
   

  	
   

  	
   

  
	
  2.1.

  	
  FORM AND DATING

  	
  36

  
	
  2.2.

  	
  EXECUTION AND AUTHENTICATION

  	
  37

  
	
  2.3.

  	
  REGISTRAR AND PAYING AGENT

  	
  38

  
	
  2.4.

  	
  PAYING AGENT TO HOLD ASSETS IN TRUST

  	
  38

  
	
  2.5.

  	
  HOLDER LISTS

  	
  39

  
	
  2.6.

  	
  TRANSFER AND EXCHANGE

  	
  39

  
	
  2.7.

  	
  REPLACEMENT SECURITIES

  	
  40

  
	
  2.8.

  	
  OUTSTANDING SECURITIES

  	
  40

  
	
  2.9.

  	
  TREASURY SECURITIES

  	
  41

  
	
  2.10.

  	
  TEMPORARY SECURITIES

  	
  41

  
	
  2.11.

  	
  CANCELLATION

  	
  41

  
	
  2.12.

  	
  DEFAULTED INTEREST

  	
  42

  
	
  2.13.

  	
  CUSIP AND ISIN NUMBERS

  	
  42

  
	
  2.14.

  	
  RESTRICTIVE LEGENDS

  	
  42

  
	
  2.15.

  	
  BOOK-ENTRY PROVISIONS FOR GLOBAL SECURITY

  	
  44

  
	
  2.16.

  	
  SPECIAL TRANSFER PROVISIONS

  	
  45

  
	
   

  	
   

  	
   

  
	
  ARTICLE THREE

  
	
   

  	
   

  	
   

  
	
  REDEMPTION

  
	
   

  	
   

  	
   

  
	
  3.1.

  	
  NOTICES TO TRUSTEE

  	
  49

  
	
  3.2.

  	
  SELECTION OF SECURITIES TO BE REDEEMED

  	
  49

  
	
  3.3.

  	
  NOTICE OF REDEMPTION

  	
  49

  
	
  3.4.

  	
  EFFECT OF NOTICE OF REDEMPTION

  	
  50

  
	
  3.5.

  	
  DEPOSIT OF REDEMPTION PRICE

  	
  50

  
	
  3.6.

  	
  SECURITIES REDEEMED IN PART

  	
  51

  



 


i

















 


	
   

  	
   

  	
  Page

  
	
   

  	
   

  	
   

  
	
  ARTICLE FOUR

  
	
   

  	
   

  	
   

  
	
  COVENANTS

  
	
   

  	
   

  	
   

  
	
  4.1.

  	
  PAYMENT OF SECURITIES

  	
  51

  
	
  4.2.

  	
  MAINTENANCE OF OFFICE OR AGENCY

  	
  51

  
	
  4.3.

  	
  LIMITATION ON RESTRICTED PAYMENTS

  	
  52

  
	
  4.4.

  	
  LIMITATION ON INCURRENCE OF ADDITIONAL INDEBTEDNESS

  	
  54

  
	
  4.5.

  	
  CORPORATE EXISTENCE

  	
  55

  
	
  4.6.

  	
  PAYMENT OF TAXES AND OTHER CLAIMS

  	
  55

  
	
  4.7.

  	
  MAINTENANCE OF PROPERTIES AND INSURANCE

  	
  55

  
	
  4.8.

  	
  COMPLIANCE CERTIFICATE; NOTICE OF DEFAULT

  	
  56

  
	
  4.9.

  	
  COMPLIANCE WITH LAWS

  	
  56

  
	
  4.10.

  	
  REPORTS TO HOLDERS

  	
  56

  
	
  4.11.

  	
  WAIVER OF STAY, EXTENSION OR USURY LAWS

  	
  57

  
	
  4.12.

  	
  LIMITATIONS ON TRANSACTIONS WITH AFFILIATES

  	
  57

  
	
  4.13.

  	
  LIMITATION ON DIVIDEND AND OTHER PAYMENT RESTRICTIONS
  AFFECTING SUBSIDIARIES

  	
  58

  
	
  4.14.

  	
  LIMITATION ON THE ISSUANCE AND SALE OF CAPITAL STOCK OF
  RESTRICTED SUBSIDIARIES

  	
  60

  
	
  4.15.

  	
  LIMITATION ON ISSUANCES OF GUARANTEES BY RESTRICTED
  SUBSIDIARIES

  	
  60

  
	
  4.16.

  	
  LIMITATION ON LIENS

  	
  61

  
	
  4.17.

  	
  CHANGE OF CONTROL

  	
  62

  
	
  4.18.

  	
  LIMITATION ON ASSET SALES

  	
  64

  
	
  4.19.

  	
  IMPAIRMENT OF SECURITY INTEREST

  	
  70

  
	
  4.20.

  	
  FUTURE GUARANTORS

  	
  70

  
	
  4.21.

  	
  FURTHER ASSURANCES AND AFTER-ACQUIRED PROPERTY

  	
  71

  
	
  4.22.

  	
  INFORMATION REGARDING COLLATERAL

  	
  72

  
	
   

  	
   

  	
   

  
	
  ARTICLE FIVE

  
	
   

  	
   

  	
   

  
	
  SUCCESSOR CORPORATION

  
	
   

  	
   

  	
   

  
	
  5.1.

  	
  MERGER, CONSOLIDATION AND SALE OF ASSETS

  	
  72

  
	
  5.2.

  	
  SUCCESSOR CORPORATION SUBSTITUTED

  	
  75

  
	
   

  	
   

  	
   

  
	
  ARTICLE SIX

  
	
   

  	
   

  	
   

  
	
  DEFAULT AND REMEDIES

  
	
   

  	
   

  	
   

  
	
  6.1.

  	
  EVENTS OF DEFAULT

  	
  75

  
	
  6.2.

  	
  ACCELERATION

  	
  76

  
	
  6.3.

  	
  OTHER REMEDIES

  	
  77

  
	
  6.4.

  	
  WAIVER OF PAST DEFAULTS

  	
  77

  
	
  6.5.

  	
  CONTROL BY MAJORITY

  	
  78

  



 


ii

















 


	
   

  	
   

  	
  Page

  
	
   

  	
   

  	
   

  
	
  6.6.

  	
  LIMITATION ON SUITS

  	
  78

  
	
  6.7.

  	
  RIGHTS OF HOLDERS TO RECEIVE PAYMENT

  	
  78

  
	
  6.8.

  	
  COLLECTION SUIT BY TRUSTEE

  	
  78

  
	
  6.9.

  	
  TRUSTEE MAY FILE PROOFS OF CLAIM

  	
  79

  
	
  6.10.

  	
  PRIORITIES

  	
  79

  
	
  6.11.

  	
  UNDERTAKING FOR COSTS

  	
  80

  
	
  6.12.

  	
  RESTORATION OF RIGHTS AND REMEDIES

  	
  80

  
	
  6.13.

  	
  RIGHTS AND REMEDIES CUMULATIVE

  	
  80

  
	
   

  	
   

  	
   

  
	
  ARTICLE SEVEN

  
	
   

  	
   

  	
   

  
	
  TRUSTEE

  
	
   

  	
   

  	
   

  
	
  7.1.

  	
  DUTIES OF TRUSTEE

  	
  80

  
	
  7.2.

  	
  RIGHTS OF TRUSTEE

  	
  81

  
	
  7.3.

  	
  INDIVIDUAL RIGHTS OF TRUSTEE

  	
  83

  
	
  7.4.

  	
  TRUSTEE’S DISCLAIMER

  	
  83

  
	
  7.5.

  	
  NOTICE OF DEFAULT

  	
  83

  
	
  7.6.

  	
  REPORTS BY TRUSTEE TO HOLDERS

  	
  83

  
	
  7.7.

  	
  COMPENSATION AND INDEMNITY

  	
  84

  
	
  7.8.

  	
  REPLACEMENT OF TRUSTEE

  	
  85

  
	
  7.9.

  	
  SUCCESSOR TRUSTEE BY MERGER, ETC.

  	
  86

  
	
  7.10.

  	
  ELIGIBILITY; DISQUALIFICATION

  	
  86

  
	
  7.11.

  	
  PREFERENTIAL COLLECTION OF CLAIMS AGAINST THE ISSUER

  	
  86

  
	
   

  	
   

  	
   

  
	
  ARTICLE EIGHT

  
	
   

  	
   

  	
   

  
	
  DISCHARGE OF INDENTURE; DEFEASANCE

  
	
   

  	
   

  	
   

  
	
  8.1.

  	
  TERMINATION OF THE ISSUER’S OBLIGATIONS

  	
  86

  
	
  8.2.

  	
  LEGAL DEFEASANCE AND COVENANT DEFEASANCE

  	
  88

  
	
  8.3.

  	
  CONDITIONS TO LEGAL DEFEASANCE OR COVENANT DEFEASANCE

  	
  89

  
	
  8.4.

  	
  APPLICATION OF TRUST MONEY

  	
  90

  
	
  8.5.

  	
  REPAYMENT TO THE ISSUER

  	
  91

  
	
  8.6.

  	
  REINSTATEMENT

  	
  91

  
	
   

  	
   

  	
   

  
	
  ARTICLE NINE

  
	
   

  	
   

  	
   

  
	
  AMENDMENTS, SUPPLEMENTS AND WAIVERS

  
	
   

  	
   

  	
   

  
	
  9.1.

  	
  WITHOUT CONSENT OF HOLDERS

  	
  91

  
	
  9.2.

  	
  WITH CONSENT OF HOLDERS

  	
  93

  
	
  9.3.

  	
  COMPLIANCE WITH TIA

  	
  94

  
	
  9.4.

  	
  REVOCATION AND EFFECT OF CONSENTS

  	
  94

  
	
  9.5.

  	
  NOTATION ON OR EXCHANGE OF SECURITIES

  	
  95

  
	
  9.6.

  	
  TRUSTEE TO SIGN AMENDMENTS, ETC.

  	
  95

  



 


iii

















 


	
   

  	
   

  	
  Page

  
	
   

  	
   

  	
   

  
	
  ARTICLE TEN

  
	
   

  	
   

  	
   

  
	
  COLLATERAL AND SECURITY DOCUMENTS

  
	
   

  	
   

  	
   

  
	
  10.1.

  	
  SECURITY DOCUMENTS; ADDITIONAL COLLATERAL

  	
  95

  
	
  10.2.

  	
  RECORDING, ETC.

  	
  97

  
	
  10.3.

  	
  RELEASE OF COLLATERAL/INTERCREDITOR AND SUBORDINATION
  AGREEMENTS

  	
  98

  
	
  10.4.

  	
  TAKING AND DESTRUCTION

  	
  99

  
	
  10.5.

  	
  TRUST INDENTURE ACT REQUIREMENTS

  	
  99

  
	
  10.6.

  	
  SUITS TO PROTECT THE COLLATERAL

  	
  99

  
	
  10.7.

  	
  PURCHASER PROTECTED

  	
  100

  
	
  10.8.

  	
  POWERS EXERCISABLE BY RECEIVER OR TRUSTEE

  	
  100

  
	
  10.9.

  	
  DETERMINATIONS RELATING TO COLLATERAL

  	
  100

  
	
  10.10.

  	
  RELEASE UPON TERMINATION OF THE COMPANY’S OBLIGATIONS

  	
  101

  
	
  10.11.

  	
  LIMITATION ON DUTY OF TRUSTEE IN RESPECT OF COLLATERAL

  	
  101

  
	
  10.12.

  	
  SUCCESSOR COLLATERAL AGENT

  	
  101

  
	
  10.13.

  	
  NOTES COLLATERAL AGENT

  	
  102

  
	
  10.14.

  	
  COMPENSATION AND INDEMNIFICATION

  	
  106

  
	
  10.15.

  	
  INTERCREDITOR AGREEMENT, SECURITY AGREEMENT, AND OTHER
  SECURITY DOCUMENTS

  	
  106

  
	
   

  	
   

  	
   

  
	
  ARTICLE ELEVEN

  
	
   

  	
   

  	
   

  
	
  RANKING OF LIENS

  
	
   

  	
   

  	
   

  
	
  11.1.

  	
  RELATIVE RIGHTS

  	
  107

  
	
   

  	
   

  	
   

  
	
  ARTICLE TWELVE

  
	
   

  	
   

  	
   

  
	
  GUARANTEE OF SECURITIES

  
	
   

  	
   

  	
   

  
	
  12.1.

  	
  UNCONDITIONAL GUARANTEE

  	
  108

  
	
  12.2.

  	
  LIMITATIONS ON GUARANTEES

  	
  109

  
	
  12.3.

  	
  EXECUTION AND DELIVERY OF GUARANTEE

  	
  110

  
	
  12.4.

  	
  RELEASE OF A GUARANTOR

  	
  110

  
	
  12.5.

  	
  WAIVER OF SUBROGATION

  	
  111

  
	
  12.6.

  	
  IMMEDIATE PAYMENT

  	
  112

  
	
  12.7.

  	
  NO SETOFF

  	
  112

  
	
  12.8.

  	
  OBLIGATIONS ABSOLUTE

  	
  112

  
	
  12.9.

  	
  OBLIGATIONS CONTINUING

  	
  112

  
	
  12.10.

  	
  OBLIGATIONS NOT REDUCED

  	
  112

  
	
  12.11.

  	
  OBLIGATIONS REINSTATED

  	
  113

  
	
  12.12.

  	
  OBLIGATIONS NOT AFFECTED

  	
  113

  
	
  12.13.

  	
  WAIVER

  	
  114

  
	
  12.14.

  	
  NO OBLIGATION TO TAKE ACTION AGAINST THE ISSUER

  	
  114

  



 


iv

















 


	
   

  	
   

  	
  Page

  
	
   

  	
   

  	
   

  
	
  12.15.

  	
  DEALING WITH THE ISSUER AND OTHERS

  	
  114

  
	
  12.16.

  	
  DEFAULT AND ENFORCEMENT

  	
  115

  
	
  12.17.

  	
  AMENDMENT, ETC.

  	
  115

  
	
  12.18.

  	
  ACKNOWLEDGMENT

  	
  115

  
	
  12.19.

  	
  COSTS AND EXPENSES

  	
  115

  
	
  12.20.

  	
  NO MERGER OR WAIVER; CUMULATIVE REMEDIES

  	
  115

  
	
  12.21.

  	
  SURVIVAL OF OBLIGATIONS

  	
  116

  
	
  12.22.

  	
  GUARANTEE IN ADDITION TO OTHER OBLIGATIONS

  	
  116

  
	
  12.23.

  	
  SEVERABILITY

  	
  116

  
	
  12.24.

  	
  SUCCESSORS AND ASSIGNS

  	
  116

  
	
   

  	
   

  	
   

  
	
  ARTICLE THIRTEEN

  
	
   

  	
   

  	
   

  
	
  TRUST MONIES

  
	
   

  	
   

  	
   

  
	
  13.1.

  	
  TRUST MONIES

  	
  117

  
	
  13.2.

  	
  INVESTMENT OF TRUST MONIES

  	
  117

  
	
   

  	
   

  	
   

  
	
  ARTICLE FOURTEEN

  
	
   

  	
   

  	
   

  
	
  MISCELLANEOUS

  
	
   

  	
   

  	
   

  
	
  14.1.

  	
  TIA CONTROLS

  	
  117

  
	
  14.2.

  	
  NOTICES

  	
  117

  
	
  14.3.

  	
  COMMUNICATIONS BY HOLDERS WITH OTHER HOLDERS

  	
  119

  
	
  14.4.

  	
  CERTIFICATE AND OPINION AS TO CONDITIONS PRECEDENT

  	
  119

  
	
  14.5.

  	
  STATEMENTS REQUIRED IN CERTIFICATE OR OPINION

  	
  119

  
	
  14.6.

  	
  RULES BY TRUSTEE, PAYING AGENT, REGISTRAR

  	
  120

  
	
  14.7.

  	
  LEGAL HOLIDAYS

  	
  120

  
	
  14.8.

  	
  GOVERNING LAW

  	
  120

  
	
  14.9.

  	
  NO ADVERSE INTERPRETATION OF OTHER AGREEMENTS

  	
  120

  
	
  14.10.

  	
  NO RECOURSE AGAINST OTHERS

  	
  120

  
	
  14.11.

  	
  SUCCESSORS

  	
  120

  
	
  14.12.

  	
  DUPLICATE ORIGINALS

  	
  120

  
	
  14.13.

  	
  SEVERABILITY

  	
  121

  



 


v

















 


	
  Exhibit A

  	
   

  	
  -

  	
   

  	
  Form of
  Initial Note

  
	
  Exhibit B

  	
   

  	
  -

  	
   

  	
  Form of
  Exchange Note

  
	
  Exhibit C

  	
   

  	
  -

  	
   

  	
  Form of
  Certificate for Transfers to Non-QIB Accredited Investors

  
	
  Exhibit D

  	
   

  	
  -

  	
   

  	
  Form of
  Certificate for Transfers Pursuant to Regulation S

  
	
  Exhibit E

  	
   

  	
  -

  	
   

  	
  Form of
  Guarantee

  



 


Note:   This Table of Contents shall
not, for any purpose, be deemed to be part of this Indenture


 


vi
















 


INDENTURE dated as of August 14, 2009 among
CLEAN HARBORS, INC., a Massachusetts corporation (the “Issuer” or the “Company”),
the Guarantors (as defined herein) and U.S. BANK NATIONAL ASSOCIATION, as
trustee (the “Trustee”) and as Notes Collateral
Agent.


 


The Issuer has duly authorized the creation of an
issue of 75/8% Senior Secured Notes due
2016 and, when and if issued as provided in the Registration Rights Agreement
in an Exchange Offer, 75/8% Senior Secured Notes due
2016 registered under the Securities Act of 1933, as amended, and, to provide
therefor, the Issuer has duly authorized the execution and delivery of this
Indenture.  All things necessary to make
the Securities, when duly issued and executed by the Issuer and authenticated
and delivered hereunder, the valid and binding obligations of the Issuer and to
make this Indenture a valid and binding agreement of the Issuer have been done.


 


This Indenture is subject to, and shall be governed
by, the mandatory provisions of the Trust Indenture Act of 1939 (the “TIA”),
as amended, that are required to be a part of and to govern indentures
qualified under the TIA.


 


Each party hereto agrees as follows for the benefit
of each other party and for the equal and ratable benefit of the Holders of the
Securities:


 


ARTICLE ONE


 


DEFINITIONS AND
INCORPORATION BY REFERENCE


 


1.1.         Definitions.


 


“ABL Collateral” has the meaning given to the
term “ABL Priority Collateral” in the Intercreditor Agreement.


 


“ABL Collateral Agent” means the Initial ABL
Agent and any successor or other agent under the Credit Agreement.


 


“ABL Loan Documents” has the meaning given to
such term in the Intercreditor Agreement.


 


“ABL Net Proceeds Offer” has the meaning set
forth in Section 4.18.


 


“ABL Net Proceeds Offer Amount” has the
meaning set forth in Section 4.18.


 


“ABL Net Proceeds Offer Payment Date” has the
meaning set forth in Section 4.18.


 


“ABL Net Proceeds Offer Trigger Date” has the
meaning set forth in Section 4.18.


 


“ABL Obligations” means all advances to, and
Indebtedness, liabilities, obligations, covenants and duties of the Company and
the Guarantors (whether for principal, premium, interest, penalties, fees,
indemnifications, reimbursements, damages and other liabilities payable under
the documentation governing such Indebtedness, liabilities, obligations,
covenants and duties) arising under (i) the Credit Agreement or otherwise
with respect to any loans or letters of 


 

















 


credit issued or borrowed
pursuant to the Credit Agreement, (ii) any Secured Cash Management
Agreement or (iii) any Secured Hedge Agreement, in each case whether
direct or indirect (including those acquired by assumption), absolute or
contingent, due or to become due, now existing or hereafter arising, and
including interest and fees that accrue after the commencement by or against
the Company or any Guarantor or any Affiliate thereof of any proceeding under
any Debtor Relief Laws naming such Person as the debtor in such proceeding,
regardless of whether such interest and fees are allowed claims in such proceeding.


 


“ABL Secured Parties” has the meaning
assigned to the term “ABL Claimholders” in the Intercreditor Agreement.


 


“Acceleration Notice” has the meaning set
forth in Section 6.2.


 


“Accredited Investor” has the meaning set
forth in Section 2.16(a).


 


“Acquired Indebtedness” means Indebtedness of
a Person or any of its Subsidiaries (1) existing at the time such Person
becomes a Restricted Subsidiary of the Company or at the time it merges or
consolidates with the Company or any of its Restricted Subsidiaries or (2) assumed
in connection with the acquisition of assets from such Person, in each case,
not incurred by such Person in connection with, or in anticipation or
contemplation of, such Person becoming a Restricted Subsidiary of the Company
or such acquisition, merger or consolidation.


 


“Affiliate”
means, with respect to any specified Person, any other Person who directly or
indirectly through one or more intermediaries controls, or is controlled by, or
is under common control with, such specified Person.  The term “control” means the possession,
directly or indirectly, of the power to direct or cause the direction of the
management and policies of a Person, whether through the ownership of voting
securities, by contract or otherwise.  “Controlling”
and “controlled” have correlative meanings.


 


“After-Acquired Property” means any real or
personal property of the Company or any Guarantor acquired after the Issue Date
that is, by the terms of the Security Documents required to become, or shall
become, subject to the Lien of the Security Documents pursuant to the terms
thereof.


 


“Affiliate Transaction” has the meaning set
forth in Section 4.12(a).


 


“Agent” means
any Registrar, Paying Agent or co-Registrar.


 


“Agent Members” has the meaning set forth in Section 2.15(a).


 


“Applicable Premium” means, with respect to
any Security on any Redemption Date, the greater of:


 


(1)           1.0%
of the principal amount of the Security; or


 


(2)           the
excess of:


 


2

















 


(a)           the
present value at such Redemption Date of (i) the Redemption Price of the
Securities at August 15, 2012, plus (ii) all required interest
payments due on the Securities through August 15, 2012 (excluding accrued
and unpaid interest due on the Securities to the Redemption Date), computed at
a discount using a discount rate equal to the Treasury Rate as of such
Redemption Date plus 50 basis points; over


 


(b)           the
principal amount of such Security.


 


“Asset Acquisition” means:


 


(1)           an
Investment by the Company or any of its Restricted Subsidiaries in any other
Person pursuant to which such Person shall become a Restricted Subsidiary of
the Company or any Restricted Subsidiary of the Company, or shall be merged
with or into or consolidated with the Company or any Restricted Subsidiary of
the Company; or


 


(2)           the
acquisition by the Company or any of its Restricted Subsidiaries of the assets
of any Person (other than a Restricted Subsidiary of the Company or any
Restricted Subsidiary of the Company) which constitute all or substantially all
of the assets of such Person or comprise any division or line of business of
such Person or any other properties or assets of such Person other than in the
ordinary course of business.


 


“Asset Sale” means any direct or indirect
sale, issuance, conveyance, transfer, lease (other than operating leases
entered into in the ordinary course of business), assignment or other transfer
for value by the Company or any of its Restricted Subsidiaries, including any
Sale and Leaseback Transaction, to any Person other than the Company or a
Wholly Owned Restricted Subsidiary of the Company of:


 


(a)           any
Capital Stock of any Restricted Subsidiary of the Company (other than directors’
qualifying shares); or


 


(b)           any
other property or assets of the Company or any Restricted Subsidiary of the
Company other than in the ordinary course of business.


 


Notwithstanding the preceding, the following items
shall not be deemed Asset Sales:


 


(1)           a
transaction or series of related transactions for which the Company and its
Restricted Subsidiaries receive aggregate consideration of less than $7.5
million;


 


(2)           the
sale, lease, conveyance, disposition or other transfer of all or substantially
all of the assets of the Company as permitted under Article Five;


 


(3)           disposals
of equipment in connection with the reinvestment in or the replacement of
equipment and disposals of worn-out or obsolete equipment;


 


(4)           the
sale or disposition of Receivables and Related Assets pursuant to a Qualified
Receivables Transaction;


 


3

















 


(5)           the
grant in the ordinary course of business of licenses to use the Company’s or
any of the Company’s Restricted Subsidiaries’ patents, trademarks and similar
intellectual property;


 


(6)           the
disposition of any Capital Stock or other ownership interest in or assets or
property of an Unrestricted Subsidiary;


 


(7)           the
release, surrender or waiver of contract, tort or other claims of any kind as a
result of settlement of any litigation or threatened litigation;


 


(8)           the
granting or existence of Liens (and foreclosure thereon) not prohibited by this
Indenture;


 


(9)           any
Restricted Payment permitted under Section 4.3 or the making of any Permitted
Investment; and


 


(10)         the
disposition of any property or assets acquired in any Asset Acquisition by the
Company or any Restricted Subsidiary of the Company, which disposition is required
by any governmental agency having jurisdiction over antitrust, competition or
similar matters in connection with such Asset Acquisition.


 


“Asset Sale Proceeds Account” means one or
more deposit accounts or securities accounts holding the proceeds of any sale
or disposition of Notes Collateral.


 


 “Bank
Lenders” means (i) the lenders or other holders of Indebtedness issued
under the Credit Agreement and (ii) the Cash Management Banks under a
Secured Cash Management Agreement and the Hedge Banks under Secured Hedge
Agreements, in each case to the extent permitted to be incurred under this
Indenture.


 


“Bankruptcy Law” means Title 11, U.S. Code,
or any similar federal, state or foreign law for the relief of debtors.


 


“Beneficial Owner” has the meaning assigned
to such term in Rule 13d-3 and Rule 13d-5 under the Exchange Act,
except that in calculating the beneficial ownership of any particular “person”
(as such term is used in Section 13(d)(3) of the Exchange Act), such “person”
shall be deemed to have beneficial ownership of all securities that such “person”
has the right to acquire, whether such right is currently exercisable or is
exercisable only upon the occurrence of a subsequent condition, regardless of
when such right may be exercised.


 


“Board of Directors” means, as to any Person,
the board of directors or equivalent governing board of such Person or any duly
authorized committee thereof.


 


“Board Resolution” means, with respect to any
Person, a copy of a resolution certified by the Secretary or an Assistant
Secretary of such Person to have been duly adopted by the Board of Directors of
such Person and to be in full force and effect on the date of such certification,
and delivered to the Trustee.


 


4

















 


“Business Day” means any day other than a
Saturday, Sunday or any other day on which banking institutions in the City of
New York or the Corporate Trust Office is required or authorized by law or
other governmental action to be closed.


 


“Capital Stock” means:


 


(1)           with
respect to any Person that is a corporation, any and all shares, interests,
rights to purchase, warrants, options, participations or other equivalents
(however designated and whether or not voting) of corporate stock; and


 


(2)           with
respect to any Person that is not a corporation, any and all partnership,
membership, limited liability company interests or other equity interests of
such Person.


 


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


 


“Cash Management Agreement” means any
agreement to provide cash management services, including treasury, depository,
overdraft, credit or debit card, electronic funds transfer and other cash
management arrangements.


 


“Cash Management Bank” means any Person that, at the time it
enters into a Cash Management Agreement, is a lender under the Credit Agreement
or an Affiliate of a lender under the Credit Agreement, in such Person’s capacity
as a party to such Cash Management Agreement.


 


“Cash Equivalents” means:


 


(1)           U.S.
dollars, Canadian dollars and, in the case of any Foreign Restricted
Subsidiaries of the Company, such local currencies held by them from time to
time in the ordinary course of business;


 


(2)           marketable
direct obligations issued by, or unconditionally guaranteed by, the United
States or Canada or issued by any agency of those countries and backed by the
full faith and credit of the respective country, in each case maturing within
one year from the date of acquisition thereof;


 


(3)           marketable
direct obligations issued by any State of the United States of America or any
political subdivision of any such State or any public instrumentality thereof
maturing within one year from the date of acquisition thereof and, at the time
of acquisition, having one of the two highest ratings obtainable from either
Standard & Poor’s Ratings Services (“S&P”) or Moody’s
Investors Service, Inc. (“Moody’s”)
or, if Moody’s and S&P cease to exist, any other nationally recognized
statistical rating organization designated by the Board of Directors of the
Company;


 


5

















 


(4)           commercial
paper maturing no more than one year from the date of creation thereof and, at
the time of acquisition, having a rating of at least A-1 from S&P or at
least P-1 from Moody’s or, if Moody’s and S&P cease to exist, the
equivalent from any other nationally recognized statistical rating organization
designated by the Board of Directors of the Company;


 


(5)           time
deposits, certificates of deposit or bankers’ acceptances maturing within one
year from the date of acquisition thereof issued by any bank (which may include
the Trustee) organized under the laws of the United States of America or any
State thereof or the District of Columbia or any foreign jurisdiction having at
the date of acquisition thereof combined capital and surplus of not less than
$250.0 million;


 


(6)           repurchase
obligations with a term of not more than thirty days for underlying securities
of the types described in clause (2) above entered into with any bank
(which may include the Trustee) meeting the qualifications specified in clause (5) above;


 


(7)           repurchase
agreements and reverse repurchase agreements relating to marketable direct
obligations issued by, or unconditionally guaranteed by, the United States or
Canada or issued by any agency of those countries and backed by the full faith
and credit of the respective country, in each case maturing within 90 days from
the date of acquisition; provided that the terms of such agreements
comply with the guidelines set forth in Repurchase Agreements of Depository
Institutions with Securities Dealers and Others, as adopted by the Comptroller
of the Currency on February 11, 1998;


 


(8)           investments
in money market funds which invest substantially all their assets in securities
of the types described in clauses (2) through (7) above; and


 


(9)           debt
securities maturing within one year from the date of acquisition issued by any
company organized under the laws of the United States of America and, at the
time of acquisition, having a rating of at least A from S&P or at least A2
from Moody’s or, if Moody’s and S&P cease to exist, the equivalent from any
other nationally recognized statistical rating organization designated by the
Company’s Board of Directors.


 


“Change of Control” means the occurrence of one or more of the
following events:


 


(1)           any
sale, lease, exchange, conveyance, disposition or other transfer, in one or a
series of related transactions, of all or substantially all of the Company’s
assets to any Person or group of related Persons for purposes of Section 13(d) of
the Exchange Act (a “Group”), together with
any Affiliates of such Person, other than to the Permitted Holders;


 


(2)           any
approval, adoption or initiation of a plan or proposal for the liquidation or
dissolution of the Company;


 


(3)           any
Person or Group, together with any Affiliates, other than the Permitted
Holders, shall become the Beneficial Owner or owner of record, by way of
merger, consolidation 


 


6

















 


or other business
combinations or by purchase in one transaction or a series of related
transactions, of shares representing 50% or more of the aggregate ordinary voting
power represented by the issued and outstanding Capital Stock of the Company;
or


 


(4)           any
Person or Group, together with any Affiliates thereof (other than the Permitted
Holders), shall succeed in having a sufficient number of its nominees elected
to the Board of Directors of the Company such that such nominees, when added to
any existing director remaining on the Board of Directors of the Company after
such election who was a nominee of or is an Affiliate of such Person or Group,
will constitute a majority of the Board of Directors of the Company.


 


 “Change of
Control Offer” has the meaning set forth in Section 4.17(a).


 


“Change of Control Payment Date” has the
meaning set forth in Section 4.17(a).


 


“Collateral” means all property (whether real
or personal) with respect to which any security interests or Liens have been
granted (or purported to be granted) pursuant to any Security Document, including,
without limitation, each Security Document delivered pursuant to Section 10.1.


 


“Collateral Access Agreement” has the meaning
given to such term in the Security Agreement.


 


“Commission”
means the United States Securities and Exchange Commission, as from time to
time constituted, created under the Exchange Act or, with respect to the
Commission’s duties under the TIA, if at any time after the execution of this instrument
such Commission is not existing and performing the duties now assigned to it
under the TIA, then the body performing such duties at such time.


 


“Commodity Agreement” means any commodity
futures contract, commodity option or other similar agreement or arrangement
entered into by the Company or any Restricted Subsidiaries of the Company
designed to protect the Company or any of its Restricted Subsidiaries against
fluctuations in the price of the commodities at the time used in the ordinary
course of business of the Company or any of its Restricted Subsidiaries.


 


“Common Stock” of any Person means any and
all shares, interests or other participations in, and other equivalents
(however designated and whether voting or nonvoting) of, such Person’s common
stock, whether outstanding on the Issue Date or issued after the Issue Date, including
all series and classes of such common stock.


 


“Company” means
the party named as such in this Indenture until a successor replaces it pursuant
to this Indenture and thereafter means such successor Person.


 


“Consolidated EBITDA” means, with respect to
any Person, for any period, the sum (without duplication) of:


 


(1)           Consolidated
Net Income; and


 


7

















 


(2)           to
the extent Consolidated Net Income has been reduced by the following,


 


(a)           all
income taxes of such Person and its Restricted Subsidiaries paid or accrued in
accordance with GAAP for such period (other than income taxes attributable to
extraordinary, unusual or nonrecurring gains or losses or taxes attributable to
sales or dispositions outside the ordinary course of business),


 


(b)           Consolidated
Interest Expense, and


 


(c)           Consolidated
Non-cash Charges less any non-cash items increasing Consolidated Net Income for
such period,


 


all as determined on a consolidated basis for
such Person and its Restricted Subsidiaries in accordance with GAAP as
applicable.


 


“Consolidated
First Lien Leverage Ratio” means, as of the date of determination,
the ratio of (a) the principal amount of the Securities outstanding at
such date plus, without duplication, the Consolidated Indebtedness of the
Company and its Restricted Subsidiaries on such date that is secured by Liens
on the Notes Collateral which are pari passu with
or senior in priority to the Liens securing the Securities and related
Guarantees to (b) Consolidated EBITDA of the Company and its Restricted
Subsidiaries during the four full fiscal quarters for which financial statements
are available ending on or prior to the date of the transaction giving rise to
the need to calculate the Consolidated First Lien Leverage Ratio, in each case
with such pro forma adjustments as are appropriate and consistent with the pro
forma adjustment provisions set forth in the definition of “Consolidated Fixed
Charge Coverage Ratio”.


 


“Consolidated Fixed Charge Coverage Ratio”
means, with respect to any Person, the ratio of Consolidated EBITDA of such
Person during the four full fiscal quarters for which financial statements are
available (the “Four Quarter Period”) ending on or prior to the date of
the transaction giving rise to the need to calculate the Consolidated Fixed
Charge Coverage Ratio (the “Transaction Date”) to Consolidated Fixed
Charges of such Person for the Four Quarter Period.  In addition to and without limitation of the
foregoing, for purposes of this definition, “Consolidated EBITDA” and “Consolidated
Fixed Charges” shall be calculated after giving effect on a pro  forma
basis (consistent with the provisions below) for the period of such calculation
to:


 


(1)           the
incurrence or repayment of any Indebtedness of such Person or any of its
Restricted Subsidiaries (and the application of the proceeds thereof) giving
rise to the need to make such calculation and any incurrence or repayment of
other Indebtedness (and the application of the proceeds thereof), other than
the incurrence or repayment of Indebtedness in the ordinary course of business
for working capital purposes pursuant to working capital facilities, occurring
during the Four Quarter Period or at any time subsequent to the last day of the
Four Quarter Period and on or prior to the Transaction Date, as if such
incurrence or repayment, as the case may be (and the application of the proceeds
thereof), occurred on the first day of the Four Quarter Period; and


 


(2)           any
Asset Acquisition or Asset Sale (including, without limitation, any Asset
Acquisition giving rise to the need to make such calculation as a result of
such Person 


 


8

















 


or one of its Restricted
Subsidiaries (including any Person who becomes a Restricted Subsidiary as a
result of the Asset Acquisition) incurring, assuming or otherwise being liable
for Acquired Indebtedness and also including any Consolidated EBITDA (including
any pro forma expense and cost reductions calculated on a
basis consistent with Regulation S-X under the Exchange Act) attributable to
the assets which are the subject of the Asset Acquisition or Asset Sale during
the Four Quarter Period) occurring during the Four Quarter Period or at any
time subsequent to the last day of the Four Quarter Period and on or prior to
the Transaction Date, as if such Asset Acquisition or Asset Sale (including the
incurrence, assumption or liability for any such Acquired Indebtedness) occurred
on the first day of the Four Quarter Period. 
If such Person or any of its Restricted Subsidiaries directly or
indirectly guarantees Indebtedness of a third Person, the preceding sentence
shall give effect to the incurrence of such guaranteed Indebtedness as if such
Person or any Restricted Subsidiary of such Person had directly incurred or
otherwise assumed such guaranteed Indebtedness.


 


Furthermore, in calculating “Consolidated Fixed
Charges” for purposes of determining the denominator (but not the numerator) of
this “Consolidated Fixed Charge Coverage Ratio,”


 


(1)           interest
on outstanding Indebtedness determined on a fluctuating basis as of the
Transaction Date and which will continue to be so determined thereafter shall
be deemed to have accrued at a fixed rate per annum equal to the rate of
interest on such Indebtedness in effect on the Transaction Date; and


 


(2)           notwithstanding
clause (1) above, interest on Indebtedness determined on a fluctuating
basis, to the extent such interest is covered by agreements relating to
Interest Swap Obligations or Currency Agreements, shall be deemed to accrue at
the rate per annum resulting after giving effect to the operation of such
agreements.


 


“Consolidated Fixed Charges” means, with
respect to any Person for any period, the sum, without duplication, of:


 


(1)           Consolidated
Interest Expense, plus


 


(2)           the
product of (x) the amount of all dividend payments on any series of
Preferred Stock of such Person or its Restricted Subsidiaries (other than
dividends either to the Company or to a Wholly Owned Restricted Subsidiary of
the Company or paid in Qualified Capital Stock of such Person) paid, accrued or
scheduled to be paid or accrued during such period times (y) a fraction,
the numerator of which is one and the denominator of which is one minus the
then current effective consolidated federal, state and local income tax rate of
such Person, expressed as a decimal.


 


“Consolidated
Indebtedness” means, as of any date of determination, the sum,
without duplication, of (1) the total amount of Indebtedness of the
Company and its Restricted Subsidiaries, plus (2) the greater of the
aggregate liquidation value and maximum fixed repurchase price without regard
to any change of control or redemption premiums of all Disqualified Capital
Stock of the Company and its Restricted Subsidiaries and all Preferred Stock of
its Restricted 


 


9

















 


Subsidiaries that are not
Guarantors, in each case determined on a consolidated basis in accordance with
GAAP.


 


“Consolidated Interest Expense” means, with
respect to any Person for any period, the sum of, without duplication:


 


(1)           the
aggregate of the interest expense of such Person and its Restricted
Subsidiaries for such period determined on a consolidated basis in accordance
with GAAP, including, without limitation, (a) any amortization of debt
discount and amortization or write-off of deferred financing costs (including
the amortization of costs relating to interest rate caps or other similar
agreements), but excluding (x) the write-off of deferred financing costs
as a result of prepayment of Indebtedness on the Issue Date described in the
Offering Circular and (y) the amortization of deferred financing costs recorded
on the Issue Date in connection with the Securities and the Credit Agreement, (b) the
net costs under Interest Swap Obligations, (c) all capitalized interest, (d) the
interest portion of any deferred payment obligation, and (e) all fees payable in connection with the issuance of
letters of credit or availability under a letter of credit facility; and


 


(2)           the
interest component of Capitalized Lease Obligations paid, accrued and/or
scheduled to be paid or accrued by such Person and its Restricted Subsidiaries
during such period as determined on a consolidated basis in accordance with
GAAP.


 


“Consolidated Net Income” means, with respect
to any Person, for any period, the aggregate net income (or loss) of such
Person and its Restricted Subsidiaries for such period on a consolidated basis,
determined in accordance with GAAP; provided
that the following shall be excluded:


 


(1)           after-tax
gains or losses from Asset Sales or abandonments or reserves relating thereto;


 


(2)           after-tax
items classified as extraordinary or nonrecurring gains or losses;


 


(3)           the
net income (but not loss) of any Restricted Subsidiary of the referent Person to
the extent that the declaration of dividends or similar distributions by that Restricted
Subsidiary of that income is prohibited by contract, operation of law or otherwise;


 


(4)           the
net income of any Person, other than a Restricted Subsidiary of the referent
Person, except to the extent of cash dividends or distributions paid to the
referent Person or to a Restricted Subsidiary of the referent Person by such Person;


 


(5)           income
or loss attributable to discontinued operations (including, without limitation,
operations disposed of during such period whether or not such operations were
classified as discontinued);


 


10

















 


(6)           in
the case of a successor to the referent Person by consolidation or merger or as
a transferee of the referent Person’s assets, any earnings of the successor
corporation prior to such consolidation, merger or transfer of assets;


 


(7)           gains
or losses from the cumulative effect of any change in accounting principles
occurring after the Issue Date; and


 


(8)           the
write-off of deferred financing costs as a result of, and the cost of terminating
interest rate swaps (if any) in connection with, the prepayments of outstanding
Indebtedness on the Issue Date.


 


“Consolidated Non-cash Charges” means, with respect
to any Person, for any period, the aggregate depreciation, amortization,
accretion and other non-cash expenses of such Person and its Restricted
Subsidiaries reducing Consolidated Net Income of such Person and its Restricted
Subsidiaries for such period, determined on a consolidated basis in accordance
with GAAP (excluding any such charges constituting an extraordinary item or
loss or any such charge (other than non-cash accretion of environmental
liabilities required by GAAP) which requires an accrual of or a reserve for
cash charges for any future period).


 


“Corporate Trust Office” means the office of
the Trustee at which the corporate trust business of the Trustee shall, at any
particular time, be principally administered, which office is, at the date of
this Indenture, located at c/o U.S. Bank National Association, One Federal
Street, 3rd Floor, Boston, MA 02110.


 


“Covenant Defeasance” has the meaning set
forth in Section 8.2(c).


 


“Credit Agreement” means, collectively, (i) one
or more credit facilities, including, without limitation, the credit agreement
dated as of July 31, 2009, among the Company, as borrower, the financial
institutions party to such agreement in their capacities as lenders, Bank of
America, N.A., as administrative agent, and certain other parties and (ii) the
related documents (including, without limitation, any guarantee agreements,
promissory notes, fee letters and security documents), in each case as such
agreements, other agreements and security documents may be amended (including
any amendment and restatement), supplemented or otherwise modified from time to
time, including any agreement extending the maturity of, refinancing, replacing
or otherwise restructuring (including increasing the amount of available borrowings
or availability of letters of credit thereunder or adding Restricted
Subsidiaries of the Company as additional borrowers or guarantors thereunder)
all or any portion of the Indebtedness under such agreements, other agreements
or any successor or replacement agreement or agreements and whether by the same
or any other agent, lender or group of lenders, or issuers of letters of
credit.


 


“Currency Agreement” means any foreign
exchange contract, currency swap agreement or other similar agreement or
arrangement designed to protect the Company or any Restricted Subsidiary of the
Company against fluctuations in currency values.


 


“Custodian”
means any receiver, trustee, assignee, liquidator, sequestrator or similar official
under any Bankruptcy Law.


 


11

















 


“Debtor Relief Laws” means the Bankruptcy
Law, and all other liquidation, conservatorship, bankruptcy, assignment for the
benefit of creditors, moratorium, rearrangement, receivership, insolvency, reorganization,
or similar debtor relief laws or regulations of the United States or other applicable
jurisdictions from time to time in effect and affecting the rights of creditors
generally.


 


“Default” means
an event that is, or with the passage of time or the giving of notice or both
would be, an Event of Default.


 


“Depository”  means The Depository Trust Company, New York,
New York, or a successor thereto registered under the Exchange Act or other
applicable statute or regulation.


 


“Destruction” means any damage to, loss or
destruction of all or any portion of the Collateral.


 


“Disqualified Capital Stock” means that
portion of any Capital Stock which, by its terms (or by the terms of any
security into which it is convertible or for which it is exchangeable at the
option of the holder thereof), or upon the happening of any event (other than
an event which would constitute a Change of Control), matures or is mandatorily
redeemable, pursuant to a sinking fund obligation or otherwise, or is redeemable
at the sole option of the holder thereof (except, in each case, upon the occurrence
of a Change of Control), on or prior to the final maturity date of the Securities.


 


“Domestic Restricted Subsidiary” means any
Restricted Subsidiary of the Company incorporated or otherwise organized or existing
under the laws of the United States, any State thereof or the District of
Columbia, other than any Restricted Subsidiary that is a Subsidiary of a
Foreign Restricted Subsidiary.


 


“DTC” has the meaning set forth in Section 2.14.


 


“Equity Offering” means a public or private
sale of Qualified Capital Stock (other than on Form S-4 or S-8 or any
successor Forms thereto) of the Company.


 


“Event of Default” has the meaning set forth
in Section 6.1.


 


“Eveready” means Eveready Inc.


 


“Exchange Act” means the Securities Exchange
Act of 1934, as amended, or any successor statute or statutes thereto.


 


“Exchange Notes” means the 75/8% Senior Secured Notes due 2016 (the terms of which
are substantially identical to the Initial Notes except that the Exchange Notes
shall be registered under the Securities Act, and shall not contain the
restrictive legend on the face of the form of the Initial Notes), to be issued
in exchange for the Initial Notes pursuant to the registered Exchange Offer.


 


12
















 


“Exchange Offer” means the registration by
the Company under the Securities Act pursuant to a registration statement of
the offer by the Company to each Holder of the Initial Notes to exchange all
the Initial Notes held by such Holder for the Exchange Notes in an aggregate
principal amount equal to the aggregate principal amount of the Initial Notes
issued on the Issue Date held by such Holder, all in accordance with the terms
and conditions of the Registration Rights Agreement.


 


“fair market value” means with respect to any
asset or property, the price which could be negotiated in an arm’s-length, free
market transaction, for cash, between a willing seller and a willing and able
buyer, neither of whom is under undue pressure or compulsion to complete the transaction.  Fair market value shall be determined
conclusively by the Board of Directors of the Company acting reasonably and in
good faith and, to the extent otherwise herein required, shall be evidenced by
a Board Resolution of the Board of Directors of the Company delivered to the
Trustee.


 


“Foreign Restricted Subsidiary” means any
Restricted Subsidiary of the Company incorporated or organized in any
jurisdiction outside of the United States.


 


“Foreign Subsidiary Total Assets” means the
total assets of Foreign Restricted Subsidiaries of the Company, determined on a
consolidated basis in accordance with GAAP, as of the most recent balance sheet
of the Company.


 


“Four Quarter Period” has the meaning set
forth in the definition of “Consolidated Fixed Charge Coverage Ratio.”


 


“GAAP” means
generally accepted accounting principles set forth in the opinions and
pronouncements of the Accounting Principles Board of the American Institute of
Certified Public Accountants and statements and pronouncements of the Financial
Accounting Standards Board or in such other statements by such other entity as
may be approved by a significant segment of the accounting profession of the
United States, which are in effect as of the Issue Date.


 


“Global Security” has the meaning set forth
in Section 2.1.


 


“guarantee”
means any obligation, contingent or otherwise, of any Person directly or indirectly
guaranteeing any Indebtedness of any other Person, including any obligation,
direct or indirect, contingent or otherwise, of such Person (i) to
purchase or pay (or advance or supply funds for the purchase or payment of)
such Indebtedness of such other Person (whether arising by virtue of
partnership arrangements, or by agreements to keep-well, to purchase assets,
goods, securities or services (unless such purchase arrangements are on arm’s-length
terms and are entered into in the ordinary course of business), to take-or-pay,
or to maintain financial statement conditions or otherwise), or (ii) entered
into for purposes of assuring in any other manner the obligee of such
Indebtedness of the payment thereof or to protect such obligee against loss in
respect thereof (in whole or in part). 
Notwithstanding the preceding, 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.


 


13

















 


“Guarantee” means the guarantee by each
Guarantor of the Issuer’s Obligations under this Indenture.


 


“Guarantor” means:


 


(1)           each
Domestic Restricted Subsidiary on the Issue Date;


 


(2)           each
Restricted Subsidiary required to execute and deliver a Guarantee pursuant to Section 4.15
and Section 4.20; and


 


(3)           each
of the Company’s other Restricted Subsidiaries that in the future executes a
supplemental indenture in which such Restricted Subsidiary agrees to be bound
by the terms of this Indenture as a Guarantor;


 


provided that any
Person constituting a Guarantor as described above shall cease to constitute a
Guarantor when its Guarantee is released in accordance with the terms of this Indenture.


 


“Hedge Bank” means any Person that, at the time it
enters into a Swap Contract permitted under this Indenture, is a lender under
the Credit Agreement or an Affiliate of a lender under the Credit Agreement, in
such Person’s capacity as a party to such Swap Contract.


 


“Holder” or “Securityholder” means the registered holder of
any Security.


 


“incur” has the meaning set forth in Section 4.4.


 


“Indebtedness”
means with respect to any Person, any indebtedness of such Person, without
duplication, in respect of:


 


(1)           all
Obligations of such Person for borrowed money;


 


(2)           all
Obligations of such Person evidenced by bonds, debentures, notes or other
similar instruments;


 


(3)           all
Capitalized Lease Obligations of such Person;


 


(4)           the
deferred and unpaid purchase price of property, all conditional sale obligations
and all Obligations under any title retention agreement, but excluding trade accounts
payable and other accrued liabilities arising in the ordinary course of
business that are not overdue by 120 days or more or are being contested in
good faith by appropriate proceedings promptly instituted and diligently conducted;


 


(5)           all
Obligations for the reimbursement of any obligor on any letter of credit,
banker’s acceptance or similar credit transaction;


 


(6)           guarantees
and other contingent Obligations in respect of Indebtedness referred to in
clauses (1) through (5) above and clause (8) below;


 


14

















 


(7)           all
Obligations of any other Person of the type referred to in clauses (1) through
(6) which are secured by any Lien on any property or asset of such Person,
the amount of such Obligations being deemed to be the lesser of the fair market
value of such property or asset or the amount of the Obligation so secured;


 


(8)           all
Obligations under Currency Agreements or Commodity Agreements and Interest Swap
Obligations of such Person; and


 


(9)           all
Disqualified Capital Stock issued by such Person with the amount of
Indebtedness represented by such Disqualified Capital Stock being equal to the
greater of its voluntary or involuntary liquidation preference and its maximum
fixed repurchase price, but excluding accrued dividends, if any.


 


For purposes hereof, the “maximum fixed repurchase
price” of any Disqualified Capital Stock which does not have a fixed repurchase
price shall be calculated in accordance with the terms of such Disqualified
Capital Stock as if such Disqualified Capital Stock were purchased on any date
on which Indebtedness shall be required to be determined pursuant to this Indenture,
and if such price is based upon, or measured by, the fair market value of such
Disqualified Capital Stock, such fair market value shall be determined
reasonably and in good faith by the Board of Directors of the issuer of such
Disqualified Capital Stock.  For purposes
of Section 4.4, in determining the principal amount of any Indebtedness to
be incurred by the Company or any Restricted Subsidiary or which is outstanding
at any date, the principal amount of any Indebtedness which provides that an
amount less than the principal amount thereof shall be due upon any declaration
of acceleration thereof shall be the accreted value thereof at the date of determination.


 


“Indenture”
means this Indenture, as amended or supplemented from time to time in accordance
with the terms hereof.


 


“Independent Financial Advisor” means a firm:


 


(1)           which
does not have a direct or indirect common equity interest in the Company; and


 


(2)           which,
in the judgment of the Board of Directors of the Company, is otherwise
independent and qualified to perform the task for which it is to be engaged.


 


“Initial ABL Agent” means Bank of America,
N.A., in its capacity as administrative agent under the Credit Agreement,
including its successors and assigns from time to time.


 


“Initial Notes” means the 75/8% Senior Secured Notes due 2016 of the Issuer,
authenticated and delivered under this Indenture pursuant to Section 2.2.


 


“Insolvency or Liquidation Proceeding” means:


 


(a)           any
voluntary or involuntary case or proceeding under the Bankruptcy Law with
respect to the Company or any Guarantor;


 


15

















 


(b)           any
other voluntary or involuntary insolvency, reorganization or bankruptcy case or
proceeding, or any receivership, liquidation, reorganization or other similar
case or proceeding with respect to the Company or any Guarantor or with respect
to a material portion of their respective assets;


 


(c)           any
composition of liabilities or similar arrangement relating to the Company or
any Guarantor, whether or not under a court’s jurisdiction or supervision;


 


(d)           any
liquidation, dissolution, reorganization or winding up of the Company or any
Guarantor, whether voluntary or involuntary, whether or not under a court’s
jurisdiction or supervision, and whether or not involving insolvency or bankruptcy;
or


 


(e)           any general assignment for the
benefit of creditors or any other marshalling of assets and liabilities of the
Company or any Guarantor.


 


“Institutional Accredited Investor” has the
meaning set forth in Section 2.16(a).


 


“Intercreditor Agreement” means the
intercreditor agreement dated as of the Issue Date among the ABL Collateral
Agent, the Trustee, the Notes Collateral Agent, the Company and each Guarantor,
as it may be amended from time to time in accordance with this Indenture.


 


“Interest Payment Date” means the stated
maturity of an installment of interest on the Securities.


 


“Interest Swap Obligations” means the
obligations of any Person pursuant to any arrangement with any other Person,
whereby, directly or indirectly, such Person is entitled to receive from time
to time periodic payments calculated by applying either a floating or a fixed
rate of interest on a stated notional amount in exchange for periodic payments
made by such other Person calculated by applying a fixed or a floating rate of
interest on the same notional amount and shall include, without limitation,
interest rate swaps, caps, floors, collars and similar agreements.


 


“Investment”
means, with respect to any Person, any direct or indirect loan or other extension
of credit (including, without limitation, a guarantee) or capital contribution
to (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), or any purchase or
acquisition by such Person of any Capital Stock, bonds, notes, debentures or
other securities or evidences of Indebtedness issued by, any Person.  “Investment” shall exclude extensions of trade
credit by, prepayment of expenses by, and receivables owing to, the Company and
its Restricted Subsidiaries on commercially reasonable terms in accordance with
normal trade practices of the Company or such Restricted Subsidiary, as the
case may be.  For purposes of Section 4.3:


 


(1)           “Investment”
shall include and be valued at the fair market value of the net assets of any
Restricted Subsidiary of the Company at the time that such Restricted
Subsidiary is designated an Unrestricted Subsidiary of the Company and shall
exclude the fair market value of the net assets of any Unrestricted Subsidiary
of the Company at the 


 


16

















 


time that such Unrestricted
Subsidiary is designated a Restricted Subsidiary of the Company; and


 


(2)           the
amount of any Investment shall be the original cost of such Investment plus the
cost of all additional Investments by the Company or any of its Restricted Subsidiaries,
without any adjustments for increases or decreases in value, or write-ups,
write-downs or write-offs with respect to such Investment, reduced by the
payment of dividends or distributions in connection with such Investment or any
other amounts received in respect of such Investment; provided that no
such payment of dividends or distributions or receipt of any such other amounts
shall reduce the amount of any Investment if such payment of dividends or
distributions or receipt of any such amounts would be included in Consolidated
Net Income.


 


If the Company or any Restricted Subsidiary of the
Company sells or otherwise disposes of any Common Stock of any direct or
indirect Restricted Subsidiary of the Company such that, after giving effect to
any such sale or disposition, such Person ceases to be a Restricted Subsidiary
of the Company, the Company shall be deemed to have made an Investment on the
date of any such sale or disposition equal to the fair market value of the
Common Stock of such Restricted Subsidiary not sold or disposed of.


 


“Issue Date” means August 14, 2009.


 


“Issuer” means
the party named as such in the first paragraph of this Indenture.


 


“Junior Lien Priority” means, relative to
specified Indebtedness, having a junior Lien priority on specified Collateral
and either subject to the Intercreditor Agreement in the capacity of “Junior Secured
Notes” or subject to intercreditor agreements providing holders of Indebtedness
with Junior Lien Priority with a priority no greater than that held by the
holders of ABL Obligations with respect to the Notes Collateral pursuant to the
Intercreditor Agreement as to the specified Collateral.


 


“Legal Defeasance” has the meaning set forth
in Section 8.2(b).


 


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


 


“Maturity Date” means August 15, 2016.


 


“Moody’s” has the meaning set forth in the
definition of “Cash Equivalents.”


 


“Mortgages” means each mortgage or deed of
trust entered into in accordance with the provisions of Sections 10.1 and 10.2
(as amended, restated, modified, supplemented, extended or replaced from time
to time) by the Company or any Guarantor (as mortgagor or grantor) and the
Notes Collateral Agent (as mortgagee or beneficiary) for the benefit of the
Noteholder Secured Parties, and each additional mortgage or deed of trust executed
after the Issue Date, which shall 


 


17

















 


be substantially in form and
substance reasonably acceptable to the Trustee, together with such changes
thereto as shall be reasonably acceptable to the Trustee.


 


“Net Cash Proceeds” means (a) with
respect to any Asset Sale, the proceeds in the form of cash or Cash Equivalents
including payments in respect of deferred payment obligations when received in
the form of cash or Cash Equivalents (other than the portion of any such
deferred payment constituting interest) received by the Company or any of its
Restricted Subsidiaries from such Asset Sale net of:


 


(1)           reasonable
out-of-pocket expenses and fees relating to such Asset Sale (including, without
limitation, legal, accounting and investment banking fees and sales commissions);


 


(2)           taxes
paid or payable after taking into account any reduction in consolidated tax
liability due to available tax credits or deductions and any tax sharing arrangements;


 


(3)           repayment
of Indebtedness that is secured by the property or assets that are the subject
of such Asset Sale;


 


(4)           appropriate
amounts to be provided by the Company or any Restricted Subsidiary, as the case
may be, as a reserve, in accordance with GAAP, against any liabilities
associated with such Asset Sale and retained by the Company or any Restricted
Subsidiary, as the case may be, after such Asset Sale, including, without
limitation, pension and other post-employment benefit liabilities, liabilities
related to environmental matters and liabilities under any indemnification
obligations associated with such Asset Sale; and


 


(5)           all
distributions and other payments required to be made to minority interest
holders in Restricted Subsidiaries or joint ventures as a result of such Asset
Sale;


 


and (b) with respect to any issuance or
sale of Capital Stock, the cash proceeds of such issuance or sale, net of
attorneys’ fees, accountants’ fees, underwriters’ or placement agents’ or
initial purchasers’ fees, discounts or commissions and brokerage, consultant
and other fees and expenses actually incurred in connection with such issuance
or sale and net of taxes paid or payable as a result thereof.


 


“Net Insurance Proceeds” means the insurance
proceeds (excluding liability insurance proceeds payable to the Trustee for any
loss, liability or expense incurred by it and excluding the proceeds of
business interruption insurance) or condemnation awards actually received by
the Company or any Restricted Subsidiary of the Company as a result of the
Destruction or Taking of all or any portion of the Collateral, net of:


 


(1)           reasonable
out-of-pocket expenses and fees relating to such Taking or Destruction
(including, without limitation, expenses of attorneys and insurance adjusters);
and


 


18

















 


(2)           repayment
of Indebtedness that is secured by the property or assets that are the subject
of such Taking or Destruction; provided that, in the case of any
Destruction or Taking involving Collateral, the Lien securing such Indebtedness
constitutes a Lien permitted by this Indenture to be prior to the Lien granted
to the Notes Collateral Agent for the benefit of the Noteholder Secured Parties
pursuant to the Security Documents.


 


“Net Proceeds Offer” has the meaning set
forth in Section 4.18.


 


“Net Proceeds Offer Amount” has the meaning
set forth in Section 4.18.


 


“Net Proceeds Offer Payment Date” has the
meaning set forth in Section 4.18.


 


“Net Proceeds Offer Trigger Date” has the
meaning set forth in Section 4.18.


 


“New Domestic Restricted Subsidiary” has the
meaning set forth in Section 4.20.


 


“Note Obligations” means all advances to, and
Indebtedness, liabilities, obligations, covenants and duties of, the Issuer and
the Guarantors (whether for principal, premium, interest, penalties, fees,
indemnifications, reimbursements, damages and other liabilities payable under
the documentation governing such Indebtedness, liabilities, obligations,
covenants and duties) arising under the Securities, the Guarantees, the
Security Documents, this Indenture or otherwise, in each case whether direct or
indirect (including those acquired by assumption), absolute or contingent, due
or to become due, now existing or hereafter arising and including interest and
fees that accrue after the commencement by or against the Issuer or any
Guarantor or any Affiliate thereof of any proceeding under any Debtor Relief
Laws naming such Person as the debtor in such proceeding, regardless of whether
such interest and fees are allowed claims in such proceeding.


 


“Noteholder Secured Parties” means the
Trustee, the Notes Collateral Agent and each Holder of, or obligee in respect
of, any Note Obligations outstanding at such time.


 


“Notes Collateral” has the meaning assigned
to the term “Senior Secured Notes Priority Collateral” in the Intercreditor
Agreement.


 


“Notes
Collateral Agent” means U.S. Bank National Association in its capacity
as Notes Collateral Agent and its successors and assigns from time to time.


 


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


 


“Obligations”
means all obligations for principal, premium, interest, penalties, fees, indemnifications,
reimbursements, damages and other liabilities payable under the documentation
governing any Indebtedness.


 


“Offering Circular” means the Confidential
Offering Circular of the Issuer dated August 11, 2009 relating to the
offering of the Initial Notes issued on the Issue Date.


 


19

















 


“Officer” means,
with respect to any Person, the Chairman of the Board, the Chief Executive
Officer, the President, any Vice President, the Chief Financial Officer, the
Controller, the Treasurer or the Secretary of such Person.


 


“Officers’ Certificate” means a certificate
signed by two Officers of the Issuer or of any Guarantor, as applicable, except
that an authentication order pursuant to Section 2.2 may be signed by only
one such Officer.


 


“Offshore Global Securities” has the meaning
set forth in Section 2.1.


 


“Offshore Physical Securities” has the
meaning set forth in Section 2.1.


 


“OID Legend” has the meaning set forth in Section 2.14.


 


“Opinion of Counsel” means a written opinion
from legal counsel, which opinion and counsel are reasonably acceptable to the
Trustee.


 


“Other Pari Passu Lien Obligations” means any
Indebtedness issued after the Issue Date pursuant to clause (iii) of the
fourth paragraph of Section 2.2 and any other Indebtedness having (i) Pari
Passu Lien Priority relative to the Securities with respect to the Notes
Collateral, (ii) either Pari Passu Lien Priority, Junior Lien Priority or
no Lien relative to the Securities with respect to the ABL Collateral and (iii) substantially
identical terms as the Securities (other than issue price, interest rate, yield
and redemption terms) and any Indebtedness that refinances or refunds (or
successive refinancings and refundings) any Securities (including any
Indebtedness issued after the Issue Date pursuant to clause (iii) of the
fourth paragraph of Section 2.2) and all obligations with respect to such
Indebtedness; provided that such Indebtedness may (a) contain terms
and covenants that are, in the reasonable opinion of the Issuer, less restrictive
to the Issuer and the Restricted Subsidiaries than the terms and covenants of
the Securities; provided, further, that such Indebtedness has
Pari Passu Lien Priority relative to the Securities; and (b) contain terms
and covenants that are more restrictive to the Issuer and its Restricted Subsidiaries
than the terms and covenants under the Securities so long as prior to or substantially
simultaneously with the issuance of any such Indebtedness, the Securities and
this Indenture are amended to contain any such more restrictive terms and
covenants; provided, further, that such Indebtedness shall have a
stated maturity date that is the same as or later than that of the Securities.


 


“Pari Passu Lien Priority” means, relative to
specified Indebtedness, having equal Lien priority on specified Collateral and
either subject to the Intercreditor Agreement on a substantially identical
basis as the holders of such specified Indebtedness or subject to intercreditor
agreements providing holders of the Indebtedness intended to have Pari Passu
Lien Priority with substantially the same rights and obligations that the
holders of such specified Indebtedness have pursuant to the Intercreditor
Agreement as to the specified Collateral.


 


“Paying Agent” has the meaning set forth in Section 2.3.


 


“Permitted Business” means the business of
the Company and its Restricted Subsidiaries as existing on the Issue Date and
any other businesses that are the same, similar or reasonably related,
ancillary or complementary thereto and reasonable extensions thereof.


 


20

















 


“Permitted Holders” means (i) Alan S.
McKim; (ii) the spouse and lineal descendants of Alan S. McKim; (iii) any
controlled Affiliate of any of the foregoing; (iv) in the event of the incompetence
or death of any of the Persons described in clause (i) or (ii), such
Person’s estate, executor, administrator, committee or other personal
representative, in each case who at any particular date will beneficially own
or have the right to acquire, directly or indirectly, Capital Stock of the
Issuer owned by such Person; or (v) any trusts, general partnerships or
limited partnerships created for the benefit of the Persons described in
clause (i), (ii) or (iv) or any trust for the benefit of any
such trust, general partnership or limited partnership.


 


“Permitted Indebtedness” means, without duplication, each of the
following:


 


(1)           Indebtedness
under the Initial Notes issued on the Issue Date (and not subsequent thereto)
in an aggregate principal amount not to exceed $300.0 million and the Exchange
Notes with respect to such Initial Notes and any Guarantees thereof;


 


(2)           Indebtedness
(with letters of credit being deemed to have a principal amount equal to the
maximum potential liability of the Company and its Restricted Subsidiaries
thereunder) outstanding under the Credit Agreement by the Company and its
Restricted Subsidiaries, in an aggregate principal amount at any time
outstanding not to exceed the greater of (a) $150.0 million less the
amount of all repayments (if such repayments are under a revolving credit
agreement, to the extent accompanied by a permanent commitment reduction) under
the Credit Agreement with Net Cash Proceeds of Asset Sales applied thereto as
required by Section 4.18(b)(iii)(A)(x) and (b) 85% of the book
value of the accounts receivable of the Company and its Restricted
Subsidiaries, provided that the aggregate principal amount of
Indebtedness permitted to be incurred from time to time under this
clause (2)(b) shall be reduced dollar for dollar by the amount of
Indebtedness then outstanding under clause (12) below; provided further
that any Indebtedness outstanding under the Credit Agreement on the Issue Date
shall be deemed to be incurred under this clause (2);


 


(3)           Indebtedness
of the Company and its Restricted Subsidiaries outstanding on the Issue Date
(other than Indebtedness in respect of (w) the Credit Agreement, (x) Eveready
or any of its Subsidiaries to be repaid on the Issue Date, (y) the Company’s
111⁄4 % Senior Secured Notes due 2012 (which have been discharged prior to the
Issue Date) and (z) Indebtedness referred to in clause (1) of this definition)
reduced by the amount of any scheduled amortization payments or mandatory
prepayments when actually paid or permanent reductions thereon;


 


(4)           Interest
Swap Obligations of the Company covering Indebtedness of the Company or any of
its Restricted Subsidiaries and Interest Swap Obligations of any Restricted
Subsidiary of the Company covering Indebtedness of the Company or such Restricted
Subsidiary; provided, however, that such Interest Swap Obligations
are in a notional principal amount that does not exceed the principal amount of
the Indebtedness to which such Interest Swap Obligation relates and are entered
into for bona fide hedging purposes and not for speculation;


 


21

















 


(5)           Indebtedness
under Currency Agreements; provided that in the case of Currency
Agreements which relate to Indebtedness, such Currency Agreements do not
increase the Indebtedness of the Company and its Restricted Subsidiaries
outstanding other than as a result of fluctuations in foreign currency exchange
rates or by reason of fees, indemnities and compensation payable thereunder;


 


(6)           Indebtedness
of a Restricted Subsidiary of the Company to the Company or to a Wholly Owned
Restricted Subsidiary of the Company for so long as such Indebtedness is held
by the Company or a Wholly Owned Restricted Subsidiary of the Company in each
case subject to no Lien held by a Person other than the Company or a Wholly
Owned Restricted Subsidiary of the Company; provided that if as of any
date any Person other than the Company or a Wholly Owned Restricted Subsidiary
of the Company owns or holds any such Indebtedness or holds a Lien in respect
of such Indebtedness, such date shall be deemed the incurrence of Indebtedness
not constituting Permitted Indebtedness under this clause (6) by the
issuer of such Indebtedness;


 


(7)           Indebtedness
of the Company to a Wholly Owned Restricted Subsidiary of the Company for so
long as such Indebtedness is held by a Wholly Owned Restricted Subsidiary of
the Company; provided that (a) any Indebtedness of the Company to
any Wholly Owned Restricted Subsidiary of the Company is unsecured and
subordinated, pursuant to a written agreement, to the Company’s obligations
under this Indenture and the Securities and (b) if as of any date any
Person other than a Wholly Owned Restricted Subsidiary of the Company owns or
holds any such Indebtedness or any Person holds a Lien in respect of such
Indebtedness, such date shall be deemed the incurrence of Indebtedness not
constituting Permitted Indebtedness under this clause (7) by the Company;


 


(8)           Indebtedness
arising from the honoring by a bank or other financial institution of a check,
draft or similar instrument inadvertently (except in the case of daylight
overdrafts) drawn against insufficient funds in the ordinary course of
business; provided, however, that such Indebtedness is extinguished
within two Business Days of incurrence;


 


(9)           Indebtedness
of the Company or any of its Restricted Subsidiaries in respect of performance
bonds, bankers’ acceptances, workers’ compensation claims, surety or appeal
bonds, payment obligations in connection with self-insurance or similar obligations,
and bank overdrafts (and letters of credit in respect thereof) in the ordinary
course of business;


 


(10)         Indebtedness
represented by Capitalized Lease Obligations and Purchase Money Indebtedness of
the Company and its Restricted Subsidiaries not to exceed $50.0 million in
the aggregate at any one time outstanding;


 


(11)         Indebtedness
under Commodity Agreements;


 


(12)         the
incurrence by a Receivables Entity of Indebtedness in a Qualified Receivables
Transaction that is without recourse (other than pursuant to representations,
warranties, covenants and indemnities entered into in the ordinary course of
business in connection with a Qualified Receivables Transaction) to the Company
or to any


 


22
















 


Restricted Subsidiary of the
Company or their assets (other than such Receivables Entity and its Receivables
and Related Assets), and is not guaranteed by any such Person; provided
that any outstanding Indebtedness incurred under this clause (12) shall reduce
(for so long as, and to the extent that, the Indebtedness referred to in this
clause (12) remains outstanding) the aggregate amount of Indebtedness permitted
to be incurred under clause (2) above to the extent set forth therein;


 


(13)         Refinancing
Indebtedness;


 


(14)         Indebtedness
of Foreign Restricted Subsidiaries of the Company in an amount not to exceed at
any one time outstanding, together with any other Indebtedness incurred under
this clause (14), 15% of the Foreign Subsidiary Total Assets at such time; and


 


(15)         additional
Indebtedness of the Company and its Restricted Subsidiaries in an aggregate
principal amount not to exceed $50.0 million at any one time outstanding.


 


For purposes of determining compliance with Section 4.4:


 


(a)           in
the event that an item of Indebtedness meets the criteria of more than one of
the categories of Permitted Indebtedness described in clauses (1) through
(15) above or is entitled to be incurred pursuant to the Consolidated Fixed
Charge Coverage Ratio provisions of such Section, the Company shall, in its
sole discretion, classify (or later reclassify) such item of Indebtedness in
any manner that complies with Section 4.4,


 


(b)           accrual
of interest, accretion or amortization of original issue discount, the payment
of interest on any Indebtedness in the form of additional Indebtedness with the
same terms or in the form of Capital Stock, the payment of dividends on
Disqualified Capital Stock in the form of additional shares of the same class
of Disqualified Capital Stock and increases in the amount of Indebtedness
outstanding solely as a result of fluctuations in the exchange rate of
currencies will not be deemed to be an incurrence of Indebtedness or an
issuance of Disqualified Capital Stock for purposes of Section 4.4,


 


(c)           guarantees
of, or obligations in respect of letters of credit relating to, Indebtedness
which is otherwise included in the determination of a particular amount of Indebtedness
shall not be included,


 


(d)           if
obligations in respect of letters of credit are incurred pursuant to the Credit
Agreement and are being treated as incurred pursuant to clause (2) above
and the letters of credit relate to other Indebtedness, then such other
Indebtedness shall not be included, and


 


(e)           if
such Indebtedness is denominated in a currency other than U.S. dollars, the
U.S. dollar equivalent principal amount thereof will be calculated based on the
relevant currency exchange rates in effect on the date such Indebtedness was incurred.


 


23

















 


“Permitted Investments” means:


 


(1)           Investments
by the Company or any Restricted Subsidiary of the Company in any Person that
is or will become immediately after such Investment a Restricted Subsidiary of
the Company or that will merge or consolidate into the Company or a Restricted
Subsidiary of the Company; provided that such Restricted Subsidiary of
the Company is not restricted from making dividends or similar distributions by
contract, operation of law or otherwise other than as permitted by Section 4.13;


 


(2)           Investments
in the Company by any Restricted Subsidiary of the Company; provided
that any Indebtedness evidencing such Investment is unsecured and subordinated,
pursuant to a written agreement, to the Company’s obligations under the Securities
and this Indenture;


 


(3)           Investments
in cash and Cash Equivalents;


 


(4)           loans
and advances to employees and officers of the Company and its Restricted
Subsidiaries made (a) in the ordinary course of business for bona fide
business purposes not to exceed $2.0 million in the aggregate at any one
time outstanding or (b) to fund purchases of Capital Stock of the Company
under any stock option plan or similar employment arrangements so long as no
cash is actually advanced by the Company or any of its Restricted Subsidiaries
to such employees and officers to fund such purchases;


 


(5)           Currency
Agreements, Commodity Agreements and Interest Swap Obligations entered into in
the ordinary course of the Company’s or its Restricted Subsidiaries’ businesses
and otherwise in compliance with this Indenture;


 


(6)           Investments
in securities of trade creditors or customers received (a) pursuant to any
plan of reorganization or similar arrangement upon the bankruptcy or insolvency
of such trade creditors or customers or (b) in settlement of delinquent
obligations of, and other disputes with, customers, suppliers and others, in
each case arising in the ordinary course of business or otherwise in
satisfaction of a judgment;


 


(7)           Investments
made by the Company or its Restricted Subsidiaries consisting of consideration
received in connection with an Asset Sale made in compliance with Section 4.18;


 


(8)           Investments
of a Person or any of its Subsidiaries existing at the time such Person becomes
a Restricted Subsidiary of the Company or at the time such Person merges or
consolidates with the Company or any of its Restricted Subsidiaries, in either
case in compliance with this Indenture; provided that such Investments
were not made by such Person in connection with, or in anticipation or
contemplation of, such Person becoming a Restricted Subsidiary of the Company
or such merger or consolidation;


 


(9)           Investments
in the Securities;


 


(10)         Investments
in existence on the Issue Date;


 


24

















 


(11)         (a) an
Investment in a trust, limited liability company, special purpose entity or
other similar entity in connection with a Qualified Receivables Transaction; provided
that (A) such Investment is made by a Receivables Entity and (B) the
only assets transferred to such trust, limited liability company, special
purpose entity or other similar entity consist of Receivables and Related
Assets of such Receivables Entity, and (b) Investments of funds in any
accounts permitted or required by the arrangements governing a Qualified
Receivables Transaction;


 


(12)         guarantees
of Indebtedness to the extent permitted pursuant to Sections 4.4, 4.15 and
4.20; and


 


(13)         additional
Investments (including Investments in joint ventures and Unrestricted
Subsidiaries) not to exceed $50.0 million at any one time outstanding.


 


“Permitted Liens” means the following types of Liens:


 


(1)           Liens
for taxes, assessments or governmental charges or claims either (a) not
delinquent or (b) contested in good faith by appropriate proceedings (provided
that such proceedings have the effect of preventing the forfeiture or sale of
the property or assets subject to such Liens) and as to which the Company or
its Restricted Subsidiaries shall have set aside on its books such reserves, if
any, as shall be required in conformity with (x) GAAP in the case of a
Domestic Restricted Subsidiary (or any Subsidiary of a Foreign Restricted
Subsidiary that is organized under the laws of the United States, any state
thereof or the District of Columbia), and (y) generally accepted
accounting principles in effect from time to time in the applicable
jurisdiction, in the case of a Foreign Restricted Subsidiary;


 


(2)           statutory
and common law Liens of landlords and Liens of carriers, warehousemen,
mechanics, suppliers, materialmen, repairmen, customs and revenue authorities
and other Liens imposed by law incurred in the ordinary course of business for
sums not yet delinquent or being contested in good faith by appropriate
proceedings (provided that such proceedings have the effect of
preventing the forfeiture or sale of the property or assets subject to such
Liens) if such reserve or other appropriate provision, if any, as shall be
required by GAAP shall have been made in respect thereof;


 


(3)           pledges
or deposits made in the ordinary course of business in connection with workers’
compensation, unemployment insurance and other types of social security or to
secure the performance of tenders, financial assurance and other statutory
obligations, surety and appeal bonds, bids, leases, government contracts,
performance and return-of-money bonds and other similar obligations, including
any pledge or deposit securing letters of credit issued in the ordinary course
of business consistent with past practice in connection therewith (exclusive of
obligations for the payment of borrowed money);


 


(4)           judgment
Liens not giving rise to an Event of Default so long as such Lien is adequately
bonded and any appropriate legal proceedings which may have been duly initiated
for the review of such judgment shall not have been finally terminated or the period
within which such proceedings may be initiated shall not have expired;


 


25

















 


(5)           minor
survey exceptions, minor encumbrances, easements or reservations of, or rights
of others for, licenses, rights-of-way, sewers, electric lines, telegraph and
telephone lines and other similar purposes, or zoning or other restrictions as
to the use of real properties or Liens, incidental to the conduct of the business
of the Company and its Restricted Subsidiaries or to the ownership of its
properties which were not incurred in connection with Indebtedness and which do
not in the aggregate materially and adversely affect the value of the
properties affected thereby or materially impair such properties’ use in the
operation of the business of the Company and its Restricted Subsidiaries;


 


(6)           leases
and subleases of real property granted to others in the ordinary course of
business so long as such leases and subleases are subordinate in all respects
to the Liens granted and evidenced by the Security Documents and which do not
materially interfere with the ordinary conduct of the business of the Company
and its Restricted Subsidiaries;


 


(7)           Liens
securing Indebtedness permitted pursuant to clause (10) of the definition
of “Permitted Indebtedness”; provided, however, that (i) in
the case of Capitalized Lease Obligations, such Liens do not extend to any
property or asset which is not leased property subject to such Capitalized
Lease Obligation and (ii) that in the case of Purchase Money Indebtedness (a) the
Indebtedness shall not exceed the cost of such property or assets and shall not
be secured by any property or assets of the Company or any Restricted
Subsidiary of the Company other than the property and assets so acquired or constructed
and any improvements thereon and (b) the Lien securing such Indebtedness
shall be created within 90 days of such acquisition or construction or, in the
case of a refinancing of any Purchase Money Indebtedness, within 90 days of
such refinancing;


 


(8)           Liens
upon specific items of inventory or other goods and proceeds of any Person
securing such Person’s obligations in respect of bankers’ acceptances or
similar credit transactions issued or created for the account of such Person to
facilitate the purchase, shipment or storage of such inventory or other goods;


 


(9)           Liens
securing reimbursement obligations with respect to commercial letters of credit
which encumber documents and other property relating to such letters of credit
and products and proceeds thereof;


 


(10)         Liens
encumbering deposits made to secure obligations arising from statutory,
regulatory, contractual or warranty requirements of the Company or any of its Restricted
Subsidiaries, including rights of offset and set-off;


 


(11)         Liens
securing Interest Swap Obligations so long as the Interest Swap Obligations
relate to Indebtedness that is otherwise permitted under this Indenture;


 


(12)         Liens
in the ordinary course of business not exceeding $5.0 million at any one
time outstanding that (a) are not incurred in connection with borrowing
money and (b) do not materially detract from the value of the property or
materially impair its use;


 


26

















 


(13)         Liens
by reason of judgment or decree not otherwise resulting in a Default;


 


(14)         Liens
securing Indebtedness under Currency Agreements and Commodity Agreements
permitted under this Indenture;


 


(15)         Liens
in favor of customs and revenue authorities arising as a matter of law to
secure payment of customs duties in connection with importation of goods;


 


(16)         Liens
arising out of conditional sale, title retention, consignment or similar
arrangements for the sale of goods entered into by the Company or any of its
Restricted Subsidiaries in the ordinary course of business;


 


(17)         Liens
securing Acquired Indebtedness incurred in accordance with Section 4.4; provided
that:


 


(a)           such
Liens secured such Acquired Indebtedness at the time of and prior to the incurrence
of such Acquired Indebtedness by the Company or a Restricted Subsidiary of the
Company and were not granted in connection with, or in anticipation of, the
incurrence of such Acquired Indebtedness by the Company or a Restricted
Subsidiary of the Company; and


 


(b)           such
Liens do not extend to or cover any property or assets of the Company or of any
of its Restricted Subsidiaries other than the property or assets that secured
the Acquired Indebtedness prior to the time such Indebtedness became Acquired
Indebtedness of the Company or a Restricted Subsidiary of the Company and are
no more favorable to the lienholders than those securing the Acquired
Indebtedness prior to the incurrence of such Acquired Indebtedness by the
Company or a Restricted Subsidiary of the Company;


 


(18)         Liens
securing insurance premium financing arrangements, provided that such Liens are limited to the applicable insurance
contracts;


 


(19)         Liens
on Receivables and Related Assets to reflect sales of receivables pursuant to a
Qualified Receivables Transaction; and


 


(20)         Liens
on assets of Foreign Restricted Subsidiaries securing Indebtedness of Foreign
Restricted Subsidiaries incurred pursuant to clause (14) of the definition of “Permitted
Indebtedness.”


 


“Person” means
an individual, partnership, corporation, limited liability company, unincorporated
organization, trust or joint venture, or a governmental agency or political
subdivision thereof or any other entity.


 


“Physical Securities” has the meaning set
forth in Section 2.1.  Physical
Securities are sometimes referred to herein as certificated Securities.


 


27

















 


“Preferred Stock” of any Person means any
Capital Stock of such Person that has preferential rights to any other Capital
Stock of such Person with respect to dividends or redemptions or upon liquidation.


 


“Private Placement Legend” means the legend
initially set forth on the Initial Notes in the form set forth in the first
paragraph of Section 2.14.


 


“Purchase Agreement” means the Purchase
Agreement, dated as of August 11, 2009, by and among the Issuer, the
Guarantors and Goldman, Sachs & Co., Banc of America Securities LLC
and Credit Suisse Securities (USA) LLC, as the initial purchasers.


 


“Purchase Money Indebtedness” means Indebtedness
of the Company and its Restricted Subsidiaries incurred in the normal course of
business for the purpose of financing all or any part of the purchase price, or
the cost of installation, construction or improvement, of property or equipment
or other related assets and any Refinancing thereof.


 


“QIB” means any “qualified
institutional buyer” (as defined under the Securities Act).


 


“Qualified Capital Stock” means any Capital
Stock that is not Disqualified Capital Stock.


 


“Qualified Receivables Transaction” means any
transaction or series of transactions that may be entered into by the Company
or any of its Restricted Subsidiaries in which the Company or any of its
Restricted Subsidiaries may sell, convey or otherwise transfer to (1) a
Receivables Entity (in the case of a transfer by the Company or any of its
Restricted Subsidiaries) and (2) any other Person (in the case of a transfer
by a Receivables Entity), or may grant a security interest in, Receivables and
Related Assets; provided that such transaction is on market terms at the
time the Company, such Restricted Subsidiary or the Receivables Entity entered
into the transaction.


 


“Receivables and Related Assets” means any
accounts receivable (whether existing on the Issue Date or arising thereafter)
of the Company or any of its Restricted Subsidiaries, and any assets related
thereto, including, without limitation, all collateral securing such accounts
receivable, all contracts and contract rights and all guarantees or other
obligations in respect of such accounts receivable, proceeds of such accounts
receivable and other assets which are customarily transferred or in respect of
which security interests are customarily granted in connection with asset
securitization transactions involving accounts receivable.


 


“Receivables Entity” means a Wholly Owned
Restricted Subsidiary of the Company (or another Person in which the Company or
any Subsidiary of the Company makes an Investment and to which the Company or
any Subsidiary of the Company transfers Receivables and Related Assets) that
engages in no activities other than in connection with the financing of
accounts receivable and that is designated by the Board of Directors of the
Company (as provided below) as a Receivables Entity:


 


(1)           no
portion of the Indebtedness or any other Obligations (contingent or otherwise)
of which (a) is guaranteed by the Company or any Restricted Subsidiary of
the Company (excluding guarantees of Obligations (other than the principal of,
premium, if any, and interest on, Indebtedness) pursuant to representations, warranties,
covenants and 


 


28

















 


indemnities entered into in
the ordinary course of business in connection with a Qualified Receivables
Transaction), (b) is recourse to or obligates the Company or any
Restricted Subsidiary of the Company in any way other than pursuant to
representations, warranties, covenants and indemnities entered into in the
ordinary course of business in connection with a Qualified Receivables
Transaction or (c) subjects any property or asset of the Company or any
Restricted Subsidiary of the Company (other than another Receivables Entity),
directly or indirectly, contingently or otherwise, to the satisfaction thereof,
other than pursuant to representations, warranties, covenants and indemnities
entered into in the ordinary course of business in connection with a Qualified
Receivables Transaction;


 


(2)           with
which neither the Company nor any Restricted Subsidiary of the Company has any
material contract, agreement, arrangement or understanding other than on terms
no less favorable to the Company or such Restricted Subsidiary than those that
might be obtained at the time from Persons who are not Affiliates of the Company,
other than fees payable in the ordinary course of business in connection with
servicing accounts receivable; and


 


(3)           with
which neither the Company nor any Restricted Subsidiary of the Company has any
obligation to maintain or preserve such Restricted Subsidiary’s financial
condition or cause such Restricted Subsidiary to achieve certain levels of
operating results.


 


Any such designation by the Board of Directors of
the Company shall be evidenced to the Trustee by filing with the Trustee a
Board Resolution giving effect to such designation and an Officers’ Certificate
certifying that such designation complied with the foregoing conditions.


 


“Record Date” means the applicable record
date specified in the Securities.


 


“Redemption Date,” when used with respect to
any Security to be redeemed, means the date fixed for such redemption pursuant
to this Indenture and the Securities.


 


“Redemption Price,” when used with respect to
any Security to be redeemed, means the price fixed for such redemption, payable
in immediately available funds, pursuant to this Indenture and the Securities.


 


“Refinance”
means, in respect of any security or Indebtedness, to refinance, extend, renew,
refund, repay, prepay, redeem, defease or retire, or to issue a security or
Indebtedness in exchange or replacement for, such security or Indebtedness in
whole or in part.  “Refinanced” and “Refinancing”
shall have correlative meanings.


 


“Refinancing Indebtedness” means any
Refinancing by the Company or any Restricted Subsidiary of the Company of (A) for
purposes of clause (13) of the definition of “Permitted Indebtedness,”
Indebtedness incurred or existing in accordance with Section 4.4 (other
than pursuant to clause (2), (4), (5), (6), (7), (8), (9), (10), (11), (12),
(14) or (15) of the definition of “Permitted Indebtedness”) or (B) for any
other purpose, Indebtedness incurred in accordance with Section 4.4, in
each case that does not:


 


29

















 


(1)           result
in an increase in the aggregate principal amount of Indebtedness of such Person
as of the date of such proposed Refinancing (plus the amount of any premium,
accrued interest and defeasance costs required to be paid under the terms of
the instrument governing such Indebtedness and plus the amount of reasonable
fees, expenses, discounts and commissions incurred by the Company in connection
with such Refinancing); or


 


(2)           create
Indebtedness with (a) if the Indebtedness being Refinanced was incurred
pursuant to clause (3) of the definition of “Permitted Indebtedness,” a
Weighted Average Life to Maturity that is less than the Weighted Average Life
to Maturity of the Indebtedness being Refinanced or a final maturity earlier
than the final maturity of the Indebtedness being Refinanced or (b) if the
Indebtedness being Refinanced was otherwise incurred in accordance with the
definition of “Permitted Indebtedness” or with Section 4.4, a Weighted
Average Life to Maturity that is less than the Weighted Average Life to
Maturity of the Securities or a final maturity earlier than the final maturity
of the Securities;


 


provided that (x) if
such Indebtedness being Refinanced is Indebtedness solely of the Company, then
such Refinancing Indebtedness shall be Indebtedness solely of the Company and (y) if
such Indebtedness being Refinanced is subordinate or junior to the Securities,
then such Refinancing Indebtedness shall be subordinate to the Securities at
least to the same extent and in the same manner as the Indebtedness being Refinanced.


 


“Registrar” has
the meaning set forth in Section 2.3.


 


“Registration Rights Agreement” means the
Registration Rights Agreement, dated August 14, 2009, among the Issuer,
the Guarantors, and Goldman, Sachs & Co., Banc of America Securities
LLC and Credit Suisse Securities (USA) LLC as the initial purchasers, as such
agreement may be amended, modified or supplemented from time to time and, with
respect to any Securities issued after the Issue Date in accordance with clause
(iii) of the fourth paragraph of Section 2.2, one or more
registration rights agreements among the Issuer, the Guarantors and the other
parties thereto, as such agreement(s) may be amended, modified or supplemented
from time to time, relating to rights given by the Issuer and the Guarantors to
the purchasers of such Securities to register such Securities under the Securities
Act.


 


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


 


“Responsible Officer” means, when used with
respect to the Trustee, any officer in the Corporate Trust Office of the
Trustee with direct responsibility for the administration of this Indenture or
to whom any corporate trust matter is referred because of such officer’s knowledge
of and familiarity with the particular subject.


 


“Restricted Payment” has the meaning set
forth in Section 4.3.


 


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


 


30

















 


“Restricted Subsidiary” of any Person means
any Subsidiary of such Person which at the time of determination is not an
Unrestricted Subsidiary.


 


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


 


“S&P” has the meaning set forth in the
definition of Cash Equivalents.


 


“Sale and Leaseback Transaction” means any
direct or indirect arrangement with any Person or to which any such Person is a
party, providing for the leasing to the Company or a Restricted Subsidiary of
any property, whether owned by the Company or any Restricted Subsidiary at the
Issue Date or later acquired, which has been or is to be sold or transferred by
the Company or such Restricted Subsidiary to such Person or to any other Person
from whom funds have been or are to be advanced by such Person on the security
of such property.


 


“Secured
Cash Management Agreement”
means any Cash Management Agreement that is entered into by and between the Company
or any Guarantor and any Cash Management Bank.


 


“Secured
Hedge Agreement”
means any Swap Contract required or
permitted under this Indenture that is entered into by and between the Company
or any Guarantor and any Hedge Bank.


 


“Securities”
means the Initial Notes, the Exchange Notes and any other Indebtedness issued
after the Issue Date pursuant to clause (iii) of the fourth paragraph of Section 2.2
treated as a single class of securities, as amended or supplemented from time
to time in accordance with the terms hereof, that are issued pursuant to this Indenture.


 


“Securities Act” means the Securities Act of
1933, as amended, or any successor statute or statutes thereto.


 


“Security Agreement” means the security
agreement, dated as of the Issue Date (as amended, restated, modified,
supplemented, extended or replaced from time to time in accordance with the
terms hereof), among the Company and the Guarantors, from time to time, as
grantors, and the Notes Collateral Agent.


 


“Security Documents”
means, collectively:


 


(1)           the
Security Agreement; and


 


(2)           all
other security agreements, mortgages (including, without limitation, the
Mortgages), deeds of trust, deeds to secure debt, pledges, collateral
assignments and other agreements or instruments evidencing or creating any
security interest or Lien in favor of the Notes Collateral Agent for the
benefit of the Noteholder Secured Parties on any or all of the assets or
property of the Company or any Guarantor, including, without limitation, each
grant of security interest in copyrights, patents and trademarks as required
pursuant to Section 3.2 of the Security Agreement, the Collateral Agency
Agreement, dated the Issue Date, by and among Corporation Service Company and
its affiliates, the Notes Collateral 


 


31

















 


Agent, the Initial ABL Agent
and Clean Harbors Environmental Services, Inc., each Collateral Access
Agreement and each control agreement.


 


“Significant Subsidiary,” with respect to any
Person, means (1) any Restricted Subsidiary of such Person that satisfies
the criteria for a “significant subsidiary” as defined in Regulation S-X under
the Securities Act as such Regulation is in effect on the Issue Date and (2) any
Restricted Subsidiary that, when aggregated with all other Restricted
Subsidiaries that are not otherwise Significant Subsidiaries and as to which
any event described in clause (vi), (vii) or (viii) of Section 6.1
has occurred and is continuing, would constitute a Significant Subsidiary under
clause (1) of this definition.


 


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


 


(1)           any
corporation of which the outstanding Capital Stock having at least a majority
of the votes entitled to be cast in the election of directors under ordinary
circumstances shall at the time be owned, directly or indirectly, by such
Person or a Subsidiary of such Person; or


 


(2)           any
other Person of which at least a majority of the voting interest under ordinary
circumstances is at the time, directly or indirectly, owned by such Person or a
Subsidiary of such Person.


 


“Swap Contract” means (a) any and
all rate swap transactions, basis swaps, credit derivative transactions,
forward rate transactions, commodity swaps, commodity options, forward
commodity contracts, equity or equity index swaps or options, bond or bond
price or bond index swaps or options or forward bond or forward bond price or
forward bond index transactions, interest rate options, forward foreign
exchange transactions, cap transactions, floor transactions, collar
transactions, currency swap transactions, cross-currency rate swap transactions,
currency options, spot contracts, or any other similar transactions or any
combination of any of the foregoing (including any options to enter into any of
the foregoing), whether or not any such transaction is governed by or subject
to any master agreement, and (b) any and all transactions of any kind, and
the related confirmations, which are subject to the terms and conditions of, or
governed by, any form of master agreement published by the International Swaps
and Derivatives Association, Inc., any International Foreign Exchange
Master Agreement, or any other master agreement (any such master agreement,
together with any related schedules, a “Master Agreement”), including any
such obligations or liabilities under any Master Agreement.


 


“Successor Collateral Agent” has the meaning
set forth in Section 10.12.


 


“Surviving Entity” has the meaning set forth
in Section 5.1(a)(i).


 


“Taking” means any taking of all or any
portion of the Collateral by condemnation or other eminent domain proceedings,
pursuant to any law, general or special, or by reason of the temporary
requisition of the use or occupancy of all or any portion of the Collateral by
any governmental authority, civil or military, or any sale pursuant to the
exercise by any such governmental authority of any right which it may then have
to purchase or designate a purchaser or to order a sale of all or any portion
of the Collateral.


 


32
















 


“TIA” or “Trust
Indenture Act” means the Trust Indenture Act of 1939 (15 U.S.C.
§§ 77aaa-77bbbb), as amended, as in effect on the date of the execution of
this Indenture until such time as this Indenture is qualified under the TIA,
and thereafter as in effect on the date on which this Indenture is qualified
under the TIA, except as otherwise provided in Section 9.3.


 


“Transaction Date” has the meaning set forth
in the definition of “Consolidated Fixed Charge Coverage Ratio.”


 


“Transactions” means the acquisition by the
Company of Eveready, the sale by the Company of the Initial Notes issued on the
Issue Date, the Company’s payment or discharge of substantially all of the
outstanding Indebtedness of the Company and its Subsidiaries and Eveready and
its Subsidiaries other than Capitalized Lease Obligations, the replacement of
substantially all of the Company’s previously outstanding letters of credit,
and payment of related fees and expenses.


 


“Treasury Rate” means, as of any Redemption
Date, the yield to maturity as of such Redemption Date 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 the 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 the Redemption Date
to August 15, 2012; provided, however, that if the
period from the Redemption Date to August 15, 2012 is less than one year,
the weekly average yield on actually traded United States Treasury securities
adjusted to a constant maturity of one year will be used.


 


“Trust Monies” means all cash and Cash
Equivalents received by the Trustee, net of fees and reasonable out-of-pocket
expenses (including, without limitation, attorneys’ fees and expenses):


 


(1)           upon
the release of Collateral, except pursuant to an Asset Sale; and


 


(2)           pursuant
to the Security Documents.


 


“Trustee” means
the party named as such in this Indenture until a successor replaces it in
accordance with the provisions of this Indenture and thereafter means such
successor.


 


“UCC” has the meaning set forth in Section 10.1(b).


 


“Unrestricted Subsidiary” means (1) any
Subsidiary of any Person that at the time of determination is designated an
Unrestricted Subsidiary by the Board of Directors of such Person in the manner
provided below and (2) any Subsidiary of an Unrestricted Subsidiary.  The Board of Directors may designate any
Subsidiary, including any newly acquired or newly formed Subsidiary, to be an
Unrestricted Subsidiary only if (a) such Subsidiary does not own any
Capital Stock of, or own or hold any Lien on any property of, the Company or
any other Subsidiary of the Company that is not a Subsidiary of the Subsidiary
to be so designated; (b) either (i) the Company certifies to the
Trustee in an Officers’ Certificate that such designation complies with Section 4.3
or (ii) the Subsidiary to be so designated at the time of designation has
total consolidated 


 


33

















 


assets of $25,000 or less;
and (c) each Subsidiary to be so designated and each of its Subsidiaries
has not at the time of designation, and does not thereafter, create, incur,
issue, assume, guarantee or otherwise become directly or indirectly liable with
respect to any Indebtedness pursuant to which the lender has recourse to any of
the assets of the Company or any of its Restricted Subsidiaries (other than the
assets of such Unrestricted Subsidiary). 
The Board of Directors may designate any Unrestricted Subsidiary to be a
Restricted Subsidiary only if (x) immediately after giving effect to such
designation, the Company is able to incur at least $1.00 of additional Indebtedness
(other than Permitted Indebtedness) in compliance with Section 4.4 and (y) immediately
before and immediately after giving effect to such designation, no Default or
Event of Default shall have occurred and be continuing.  Any such designation by the Board of Directors
shall be evidenced to the Trustee by promptly filing with the Trustee a copy of
the Board Resolution giving effect to such designation and an Officers’
Certificate certifying that such designation complied with the foregoing
provisions.


 


“U.S. Global Securities” has the meaning set
forth in Section 2.1.


 


“U.S. Government Obligations” means direct
obligations of, and obligations guaranteed by, the United States of America for
the payment of which the full faith and credit of the United States of America
is pledged and which are not callable or redeemable at the issuer’s option.


 


“U.S. Legal Tender” means such coin or
currency of the United States of America as at the time of payment shall be
legal tender for the payment of public and private debts.


 


“U.S. Physical Securities” means the
Securities issued in the form of permanent certificated Securities in
registered form in substantially the form set forth in Exhibit A to
Institutional Accredited Investors which are not QIBs (excluding Non-U.S.
Persons) who purchased Securities pursuant to Regulation D under the Securities
Act.


 


“Weighted Average Life to Maturity” means,
when applied to any Indebtedness at any date, the number of years obtained by
dividing (1) the then outstanding aggregate principal amount of such
Indebtedness into (2) the sum of the total of the products obtained by
multiplying (a) the amount of each then remaining installment, sinking
fund, serial maturity or other required payment of principal, including payment
at final maturity, in respect thereof, by (b) the number of years
(calculated to the nearest one-twelfth) which will elapse between such date and
the making of such payment.


 


“Wholly Owned Restricted Subsidiary” of any
Person means any Restricted Subsidiary of such Person of which all the
outstanding voting securities (other than in the case of a Foreign Restricted
Subsidiary, directors’ qualifying shares or an immaterial amount of shares
required to be owned by other Persons pursuant to applicable law) are owned by
such Person or any Wholly Owned Restricted Subsidiary of such Person.


 


1.2.         Incorporation
by Reference of TIA.


 


Whenever this Indenture refers to a provision of the
TIA, such provision is incorporated by reference in, and made a part of, this
Indenture.  The following TIA terms used
in this Indenture have the following meanings:


 


34

















 


“indenture securities” means the
Securities.


 


“indenture security holder” means a
Holder or a Securityholder.


 


“indenture to be qualified” means this
Indenture.


 


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


 


“obligor”
on the indenture securities means the Company, any Guarantor or any other
obligor on the Securities.


 


All other TIA terms used in this Indenture that are
defined by the TIA, defined by TIA reference to another statute or defined by
Commission rule and not otherwise defined herein have the meanings
assigned to them therein.


 


1.3.         Rules of
Construction.


 


Unless the context otherwise requires:


 


(1)           a term has the
meaning assigned to it;


 


(2)           an accounting term
not otherwise defined has the meaning assigned to it in accordance with GAAP;


 


(3)           “or” is not
exclusive;


 


(4)           “including” means
including without limitation;


 


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


 


(6)           provisions apply to
successive events and transactions;


 


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


 


(8)           all ratios and
computations based on GAAP contained in this Indenture shall be computed in
accordance with the definition of GAAP set forth in Section 1.1; and


 


(9)           all references to
Sections or Articles refer to Sections or Articles in this Indenture unless
otherwise indicated.


 


35

















 


ARTICLE TWO


 


THE SECURITIES


 


2.1.         Form and
Dating.


 


The Initial Notes and the Trustee’s certificate of
authentication shall be substantially in the form of Exhibit A and
the Exchange Notes and the Trustee’s certificate of authentication shall be
substantially in the form of Exhibit B.  The Securities may have notations, legends or
endorsements required by law, stock exchange rule or usage.  The Issuer and the Trustee shall approve the
form of the Securities and any notation, legend or endorsement on them.  Each Security shall be dated the date of its
authentication.


 


The terms and provisions contained in the
Securities, annexed hereto as Exhibits A and B, and the
Guarantees, annexed hereto as Exhibit E, shall constitute, and are
hereby expressly made, a part of this Indenture and, to the extent applicable,
the Issuer, the Guarantors, and the Trustee, by their execution and delivery of
this Indenture, expressly agree to such terms and provisions and to be bound
thereby.


 


Securities offered and sold in reliance on Rule 144A
shall be issued initially in the form of one or more permanent global
Securities in registered form, substantially in the form set forth in Exhibit A
(the “U.S. Global Securities”), deposited with the Trustee, as custodian
for the Depository, duly executed by the Issuer and authenticated by the
Trustee as hereinafter provided, and shall bear the legends set forth in Section 2.14.  The aggregate principal amount of the U.S.
Global Securities may from time to time be increased or decreased by
adjustments made on the records of the Trustee, as custodian for the
Depository, as hereinafter provided.


 


Securities issued in exchange for interests in the
U.S. Global Securities pursuant to Section 2.15 may be issued in the form
of permanent certificated Securities in registered form and shall bear the
first legend set forth in Section 2.14.


 


Securities offered and sold in offshore transactions
in reliance on Regulation S shall be issued initially in the form of one or
more permanent global Securities in registered form substantially in the form
set forth in Exhibit A (the “Offshore Global Securities”),
deposited with the Trustee, as custodian for the Depository or its nominee,
duly executed by the Issuer and authenticated by the Trustee as hereinafter
provided, and shall bear the legends set forth in Section 2.14.  The Registrar shall reflect on its books and
records the date of any decrease in the principal amount of the Offshore Global
Securities in an amount equal to the principal amount of the beneficial
interest in the Offshore Global Securities transferred.  The aggregate principal amount of the
Offshore Global Securities may from time to time be increased or decreased by
adjustments made on the records of the Trustee, as custodian for the
Depository, as hereinafter provided.


 


Securities issued in exchange for interests in the
Offshore Global Securities pursuant to Section 2.15 may be issued in the
form of permanent certificated Securities in registered form (the “Offshore
Physical Securities”) and shall bear the first legend set forth in Section 2.14.  All Securities offered and sold in reliance
on Regulation S shall remain in the form of an Offshore 


 


36

















 


Global Security until the
consummation of the Exchange Offer pursuant to the Registration Rights
Agreement.


 


The Offshore Physical Securities and the U.S.
Physical Securities are sometimes collectively herein referred to as the “Physical
Securities.”  The U.S. Global
Securities and the Offshore Global Securities are sometimes referred to herein
as the “Global Securities.”


 


2.2.         Execution
and Authentication.


 


One Officer or an Assistant Secretary, of the Issuer
(each of whom shall, in each case, have been duly authorized by all requisite
corporate actions) shall sign the Securities for the Issuer by manual or
facsimile signature.


 


If an Officer whose signature is on a Security was
an Officer at the time of such execution but no longer holds that office at the
time the Trustee authenticates the Security, the Security shall nevertheless be
valid.


 


A Security shall not be valid until an authorized
signatory of the Trustee manually signs the certificate of authentication on
the Security.  The signature shall be
conclusive evidence that the Security has been authenticated under this
Indenture.


 


The Trustee shall authenticate (i) Initial
Notes for original issue on the Issue Date in an aggregate principal amount not
to exceed $300,000,000, (ii) pursuant to the Exchange Offer, Exchange
Notes from time to time for issue only in exchange for a like principal amount
of Initial Notes and (iii) subject to compliance with Section 4.4 and
Section 4.16, one or more series of Securities for original issue after
the Issue Date (such Securities to be substantially in the form of Exhibit A
or B, as the case may be) in an unlimited amount (and if in the form
of Exhibit A the same principal amount of Exchange Notes in
exchange therefor upon consummation of a registered exchange offer), in each
case upon written orders of the Issuer in the form of an Officers’ Certificate,
which Officers’ Certificate shall, in the case of any issuance pursuant to
clause (iii) above, certify that such issuance is in compliance with Section 4.4
and Section 4.16.  In addition, each
such Officers’ Certificate shall specify the amount of Securities to be authenticated,
the date on which the Securities are to be authenticated, whether the
Securities are to be Initial Notes, Exchange Notes or Securities issued under
clause (iii) of the preceding sentence and the aggregate principal amount
of Securities outstanding on the date of authentication, and shall further
specify the amount of such Securities to be issued as a Global Security or
Physical Securities.  Such Securities
shall initially be in the form of one or more Global Securities, which (i) shall
represent, and shall be denominated in an amount equal to the aggregate
principal amount of, the Securities to be issued, (ii) shall be registered
in the name of the Depository for such Global Security or Securities or its
nominee and (iii) shall be delivered by the Trustee to the Depository or
pursuant to the Depository’s instruction. 
All Securities issued under this Indenture shall vote and consent
together on all matters as one class and no series of Securities will have the
right to vote or consent as a separate class on any matter.


 


The Trustee may appoint an authenticating agent
reasonably acceptable to the Issuer to authenticate the Securities.  Unless otherwise provided in the appointment,
an authenticating agent may authenticate Securities whenever the Trustee may do
so.  Each reference in this Indenture 


 


37

















 


to authentication by the
Trustee includes authentication by such agent. 
An authenticating agent has the same rights as an Agent to deal with the
Issuer and Affiliates of the Issuer.


 


The Securities shall be issuable only in registered
form without coupons in denominations of $2,000 and integral multiples of
$1,000.


 


2.3.         Registrar
and Paying Agent.


 


The Issuer shall maintain an office or agency in the
Borough of Manhattan, The City of New York, where (a) Securities may be
presented or surrendered for registration of transfer or for exchange (“Registrar”), (b) Securities may be
presented or surrendered for payment (“Paying Agent”) and (c) notices
and demands to or upon the Issuer in respect of the Securities and this
Indenture may be served.  The Issuer may
also from time to time designate one or more other offices or agencies where
the Securities may be presented or surrendered for any or all such purposes and
may from time to time rescind such designations; provided,
however, that no such designation or
rescission shall in any manner relieve the Issuer of its obligation to maintain
an office or agency in the Borough of Manhattan, The City of New York, for such
purposes.  The Issuer may act as its own
Registrar or Paying Agent except that for the purposes of Articles Three and
Eight and Sections 4.17 and 4.18, neither the Issuer nor any Affiliate of the
Issuer shall act as Paying Agent.  The
Registrar shall keep a register of the Securities and of their transfer and exchange.  The Issuer, upon notice to the Trustee, may
have one or more co-Registrars and one or more additional paying agents
reasonably acceptable to the Trustee. 
The term “Paying Agent” includes any additional paying
agent.  The Issuer hereby initially
appoints the Trustee as Registrar and Paying Agent until such time as the
Trustee has resigned or a successor has been appointed.


 


The Issuer shall enter into an appropriate agency
agreement with any Agent not a party to this Indenture, which agreement shall
implement the provisions of this Indenture that relate to such Agent.  The Issuer shall notify the Trustee, in
advance, of the name and address of any such Agent.  If the Issuer fails to maintain a Registrar
or Paying Agent, the Trustee shall act as such.


 


The Trustee is authorized to enter into a letter of
representations with the Depository in the form provided by the Issuer and to
act in accordance with such letter.


 


2.4.         Paying
Agent to Hold Assets in Trust.


 


The Issuer shall require each Paying Agent other
than the Trustee to agree in writing that each Paying Agent shall hold in trust
for the benefit of Holders or the Trustee all assets held by the Paying Agent
for the payment of principal of, premium, if any, or interest on, the
Securities (whether such assets have been distributed to it by the Issuer or
any other obligor on the Securities), and shall notify the Trustee of any
Default or Event of Default by the Issuer (or any other obligor on the
Securities) in making any such payment. 
If either the Issuer or a Subsidiary acts as Paying Agent, it shall
segregate such assets and hold them as a separate trust fund.  The Issuer at any time may require a Paying
Agent to distribute all assets held by it to the Trustee and account for any
assets disbursed and the Trustee may at any time during the continuance of any
payment Default or payment Event of Default, upon written request to a Paying
Agent, require such Paying Agent to distribute all assets held by it to the
Trustee and to account for any assets 


 


38

















 


distributed.  Upon distribution to the Trustee of all
assets that shall have been delivered by the Issuer to the Paying Agent, the
Paying Agent shall have no further liability for such assets.


 


2.5.         Holder
Lists.


 


The Trustee shall preserve in as current a form as
is reasonably practicable the most recent list available to it of the names and
addresses of Holders.  If the Trustee is
not the Registrar, the Issuer shall furnish to the Trustee on or before each
Interest Payment Date and at such other times as the Trustee may request in
writing a list in such form and as of such date as the Trustee may reasonably
require of the names and addresses of Holders, which list may be conclusively
relied upon by the Trustee.


 


2.6.         Transfer
and Exchange.


 


(a)           Subject to the provisions of Sections 2.14 and 2.15, when
Securities are presented to the Registrar or a co-Registrar with a request to
register the transfer of such Securities or to exchange such Securities for an
equal principal amount of Securities of other authorized denominations, the
Registrar or co-Registrar shall register the transfer or make the exchange as requested
if its requirements for such transaction are met; provided, however,
that the Securities surrendered for registration of transfer or exchange shall
be duly endorsed or accompanied by a written instrument of transfer in form
satisfactory to the Issuer and the Registrar or co-Registrar, duly executed by
the Holder thereof or his attorney duly authorized in writing.  To permit registrations of transfers and
exchanges, the Issuer shall execute and the Trustee shall authenticate
Securities at the Registrar’s or co-Registrar’s request.  No service charge shall be made for any
registration of transfer or exchange, but the Issuer may require payment of a
sum sufficient to cover any transfer tax or similar governmental charge payable
in connection therewith (other than any such transfer taxes or similar
governmental charge payable upon exchanges or transfers pursuant to Section 2.2,
2.10, 3.6, 4.17, 4.18 or 9.5).  The Registrar
or co-Registrar shall not be required to register the transfer of or exchange
of any Security (i) during a period beginning at the opening of business
15 days before the mailing of a notice of redemption of Securities and ending
at the close of business on the day of such mailing, (ii) selected for
redemption in whole or in part pursuant to Article Three, except the
unredeemed portion of any Security being redeemed in part, and (iii) during
a Change of Control Offer, a Net Proceeds Offer or an ABL Net Proceeds Offer if
such Security is tendered pursuant to such Change of Control Offer, Net Proceeds
Offer or ABL Net Proceeds Offer and not withdrawn.  A Global Security may be transferred, in
whole but not in part, in the manner provided in this Section 2.6(a), only
to a nominee of the Depository for such Global Security, or to the Depository,
or a successor Depository for such Global Security selected or approved by the
Issuer, or to a nominee of such successor Depository.


 


(b)           If at any time the Depository for the Global Security or
Securities notifies the Issuer that it is unwilling or unable to continue as
Depository for such Global Security or Securities or the Issuer becomes aware
that the Depository has ceased to be a clearing agency registered under the Exchange
Act, the Issuer shall appoint a successor Depository with respect to such
Global Security or Securities.  If a
successor Depository for such Global Security or Securities has not been
appointed within 90 days after the Issuer receives such notice or become aware
of such ineligibility, the Issuer shall execute, and the Trustee, upon receipt
of an Officers’ Certificate 


 


39

















 


for the authentication and delivery of
Securities, shall authenticate and make available for delivery, Securities in
definitive form, in an aggregate principal amount at maturity equal to the
principal amount at maturity of the Global Security representing such
Securities, in exchange for such Global Security.  The Issuer shall reimburse the Registrar, the
Depository and the Trustee for expenses they incur in documenting such
exchanges and issuances of Securities in definitive form.


 


The Issuer may at any time and in their sole discretion
determine that the Securities shall no longer be represented by such Global
Security or Global Securities.  In such
event the Issuer will execute, and the Trustee, upon receipt of a written order
for the authentication and delivery of individual Securities in exchange in
whole or in part for such Global Security or Global Securities, will
authenticate and make available for delivery individual Securities in
definitive form in an aggregate principal amount equal to the principal amount
of such Global Security or Global Securities in exchange for such Global Security
or Global Securities.


 


In any exchange provided for in any of the preceding
two paragraphs, the Issuer will execute and the Trustee will authenticate and
make available for delivery individual Securities in definitive registered form
in authorized denominations.  Upon the
exchange of a Global Security for individual Securities, such Global Security
shall be cancelled by the Trustee. 
Securities issued in exchange for a Global Security pursuant to this Section 2.6(b) shall
be registered in such names and in such authorized denominations as the
Depository for such Global Security, pursuant to instructions from its direct
or indirect participants or otherwise, shall instruct the Trustee.  The Trustee shall make available for delivery
such Securities to the Persons in whose names such Securities are so
registered.


 


Neither the Issuer, the Trustee, any Paying Agent or
the Registrar will have any responsibility or liability for any aspect of the
records relating to or payments made on account of beneficial ownership
interests in a Global Security or for maintaining, supervising or reviewing any
records relating to such beneficial ownership interests.


 


2.7.         Replacement
Securities.


 


If a mutilated Security is surrendered to the
Trustee or if the Holder of a Security claims that the Security has been lost,
destroyed or wrongfully taken, the Issuer shall issue and the Trustee shall
authenticate a replacement Security if the Trustee’s requirements are met.  If required by the Trustee or the Issuer, such
Holder must provide an indemnity bond or other indemnity, sufficient in the
judgment of both the Issuer and the Trustee, to protect the Issuer, the Trustee
or any Agent from any loss which any of them may suffer if a Security is replaced.  The Issuer may charge such Holder for its
reasonable out-of-pocket expenses in replacing a Security pursuant to this Section 2.7,
including reasonable fees and expenses of counsel.


 


Every replacement Security is an additional
obligation of the Issuer.


 


2.8.         Outstanding
Securities.


 


Securities outstanding at any time are all the
Securities that have been authenticated by the Trustee except those cancelled
by it, those delivered to it for cancellation and those described 


 


40

















 


in this Section as not
outstanding.  A Security does not cease
to be outstanding because the Issuer, any Guarantor or any of their respective
Subsidiaries or Affiliates holds the Security.


 


If a Security is replaced pursuant to Section 2.7
(other than a mutilated Security surrendered for replacement), it ceases to be
outstanding unless the Trustee receives proof satisfactory to it that the
replaced Security is held by a bona fide
purchaser or a protected purchaser.  A
mutilated Security ceases to be outstanding upon surrender of such Security and
replacement thereof pursuant to Section 2.7.  If the principal amount of any Security is
considered paid under Section 4.1, it ceases to be outstanding and interest
ceases to accrue.


 


If on a Redemption Date or the Maturity Date the
Paying Agent (other than the Issuer or a Subsidiary) holds U.S. Legal Tender
sufficient to pay all of the principal, premium, if any, and interest due on
the Securities payable on that date, then on and after that date such Securities
cease to be outstanding and interest on them ceases to accrue.


 


2.9.         Treasury
Securities.


 


In determining whether the Holders of the required
principal amount of Securities have concurred in any direction, waiver or
consent, Securities owned by the Issuer, any of its Subsidiaries or any of its
respective Affiliates shall be disregarded, except that, for the purposes of determining
whether the Trustee shall be protected in relying on any such direction, waiver
or consent, only Securities that a Responsible Officer of the Trustee knows or
has reason to know are so owned shall be disregarded.


 


2.10.       Temporary
Securities.


 


Until definitive Securities are ready for delivery,
the Issuer may prepare and the Trustee shall authenticate temporary
Securities.  Temporary Securities shall
be substantially in the form of definitive Securities but may have variations
that the Issuer considers appropriate for temporary Securities, as evidenced by
execution of such temporary Securities by the Issuer.  Without unreasonable delay, the Issuer shall
prepare and the Trustee shall authenticate definitive Securities in exchange
for temporary Securities.  Until such
exchange, temporary Securities shall be entitled to the same rights, benefits
and privileges as definitive Securities. 
Notwithstanding the foregoing, so long as the Securities are represented
by a Global Security, such Global Security may be in typewritten form.


 


2.11.       Cancellation.


 


The Issuer at any time may deliver Securities to the
Trustee for cancellation.  The Registrar
and the Paying Agent shall forward to the Trustee any Securities surrendered to
them for registration of transfer, exchange or payment.  The Trustee or, at the direction of the
Trustee, the Registrar or the Paying Agent (other than the Issuer or a
Subsidiary), and no one else, shall cancel and shall dispose of all Securities
surrendered for registration of transfer, exchange, payment or
cancellation.  Subject to Section 2.7,
the Issuer may not issue new Securities to replace Securities that they have
paid or delivered to the Trustee for cancellation.  If the Issuer or any Guarantor shall acquire
any of the Securities, such acquisition shall not operate as a redemption or
satisfaction 


 


41

















 


of the Indebtedness
represented by such Securities unless and until the same are surrendered to the
Trustee for cancellation pursuant to this Section 2.11.


 


2.12.       Defaulted
Interest.


 


If the Issuer defaults in a payment of interest on
the Securities, it shall, unless the Trustee fixes another record date pursuant
to Section 6.10, pay the defaulted interest, plus (to the extent lawful)
any interest payable on the defaulted interest, in any lawful manner.  The Issuer may pay the defaulted interest to
the Persons who are Holders on a subsequent special record date, which date
shall be the fifteenth day next preceding the date fixed by the Issuer for the
payment of defaulted interest or the next succeeding Business Day if such date
is not a Business Day.  At least 15 days
before any such subsequent special record date, the Issuer shall mail to each
Holder, with a copy to the Trustee, a notice that states the subsequent special
record date, the payment date and the amount of defaulted interest, and
interest payable on such defaulted interest, if any, to be paid.


 


2.13.       CUSIP
and ISIN Numbers.


 


The Issuer in issuing the Securities may use “CUSIP”
and “ISIN” numbers, and if so, the Trustee shall use the CUSIP 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 the CUSIP and ISIN numbers printed in the notice or
on the Securities, and that reliance may be placed only on the other identification
numbers printed on the Securities and that any such redemption or exchange
shall not be affected by any defect or omission of such CUSIP and ISIN
numbers.  The Issuer will promptly notify
the Trustee of any change in CUSIP or ISIN number.


 


2.14.       Restrictive
Legends.


 


Unless and until a Security is exchanged for an
Exchange Note or sold in connection with an effective registration statement
under the Securities Act pursuant to the Registration Rights Agreement, (i) the
U.S. Global Securities and U.S. Physical Securities shall bear the legend set
forth below (the “Private Placement Legend”) on the face thereof and (ii) the
Offshore Physical Securities, until at least the 41st day after the Issue Date
and receipt by the Issuer and the Trustee of a certificate substantially in the
form of Exhibit D hereto, shall bear the legend set forth below on
the face thereof.


 


THIS
SECURITY HAS NOT BEEN REGISTERED UNDER THE U.S. SECURITIES ACT OF 1933, AS
AMENDED (THE “SECURITIES ACT”), 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.  BY
ITS ACQUISITION HEREOF, THE HOLDER (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 SECURITY IN AN OFFSHORE TRANSACTION
IN COMPLIANCE WITH RULE 904 UNDER THE SECURITIES ACT OR (C) IT IS AN
ACCREDITED


 


42
















 


INVESTOR
(AS DEFINED IN RULE 501(A)(1), (2), (3), OR (7) UNDER THE SECURITIES ACT)
(AN “ACCREDITED INVESTOR”), (2) AGREES THAT IT WILL NOT PRIOR TO THE FIRST
ANNIVERSARY OF THE ORIGINAL ISSUANCE OF THIS SECURITY RESELL OR OTHERWISE
TRANSFER THIS SECURITY EXCEPT (A) TO THE ISSUER OR ANY SUBSIDIARY THEREOF,
(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 ACCREDITED INVESTOR 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 SECURITY (THE FORM OF WHICH LETTER CAN BE
OBTAINED FROM THE TRUSTEE FOR THIS SECURITY), (D) OUTSIDE THE UNITED
STATES IN AN OFFSHORE TRANSACTION IN COMPLIANCE WITH RULE 904 UNDER THE
SECURITIES ACT (IF AVAILABLE), (E) PURSUANT TO THE EXEMPTION FROM
REGISTRATION PROVIDED BY RULE 144 UNDER THE SECURITIES ACT (IF AVAILABLE), (F) IN
ACCORDANCE WITH ANOTHER EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE
SECURITIES ACT (AND BASED UPON AN OPINION OF COUNSEL IF THE ISSUER SO
REQUESTS), OR (G) PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER
THE SECURITIES ACT AND (3) AGREES THAT IT WILL GIVE TO EACH PERSON TO WHOM
THIS SECURITY IS TRANSFERRED A NOTICE SUBSTANTIALLY TO THE EFFECT OF THIS
LEGEND.  IN CONNECTION WITH ANY TRANSFER
OF THIS SECURITY WITHIN ONE YEAR AFTER THE ORIGINAL ISSUANCE OF THIS SECURITY,
IF THE PROPOSED TRANSFEREE IS AN ACCREDITED INVESTOR, THE HOLDER MUST, PRIOR TO
SUCH TRANSFER, FURNISH TO THE TRUSTEE AND THE ISSUER 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 TERMS “OFFSHORE
TRANSACTION,” “UNITED STATES” AND “U.S. PERSON” HAVE THE MEANING GIVEN TO THEM
BY REGULATION S UNDER THE SECURITIES ACT.


 


Each Global Security shall also bear the following
legend on the face thereof (the “Global Security Legend”):


 


UNLESS
AND UNTIL IT IS EXCHANGED IN WHOLE OR IN PART FOR SECURITIES IN DEFINITIVE
FORM, THIS SECURITY MAY NOT BE TRANSFERRED EXCEPT AS A WHOLE BY THE
DEPOSITORY TO A NOMINEE OF THE DEPOSITORY, OR BY ANY SUCH NOMINEE OF THE
DEPOSITORY, OR BY THE DEPOSITORY OR NOMINEE OF SUCH 


 


43

















 


SUCCESSOR
DEPOSITORY OR ANY SUCH NOMINEE TO A SUCCESSOR DEPOSITORY OR A NOMINEE OF SUCH
SUCCESSOR DEPOSITORY.  UNLESS THIS
CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY
TRUST COMPANY, A NEW YORK CORPORATION (“DTC”),
TO THE ISSUER OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT,
AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR
SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY
PAYMENT HEREON 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 SECURITY 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 SECURITY SHALL BE
LIMITED TO TRANSFERS MADE IN ACCORDANCE WITH THE RESTRICTIONS SET FORTH IN SECTION 2.16
OF THE INDENTURE GOVERNING THIS SECURITY.


 


Each Security issued hereunder that has more
than a de minimis amount of original issue discount for U.S. Federal Income Tax
purposes shall bear a legend in substantially the following form (the “OID
Legend”):


 


THIS
SECURITY IS ISSUED WITH ORIGINAL ISSUE DISCOUNT FOR PURPOSES OF SECTION 1271
ET SEQ. OF THE INTERNAL REVENUE CODE.  A
HOLDER MAY OBTAIN THE ISSUE PRICE, AMOUNT OF ORIGINAL ISSUE DISCOUNT,
ISSUE DATE AND YIELD TO MATURITY FOR SUCH NOTES BY SUBMITTING A REQUEST FOR
SUCH INFORMATION TO THE ISSUER AT THE FOLLOWING ADDRESS: CLEAN HARBORS, INC.,
42 LONGWATER DRIVE, NORWELL, MA 02061 ATTENTION: CHIEF FINANCIAL OFFICER.


 


2.15.        Book-Entry Provisions for
Global Security.


 


(a)           Each Global Security
initially shall (i) be registered in the name of the Depository or the
nominee of such Depository, (ii) be delivered to the Trustee as custodian
for such Depository and (iii) bear legends as set forth in Section 2.14.


 


Members of, or participants in, the Depository (“Agent
Members”) shall have no rights under this Indenture with respect to any
Global Security held on their behalf by the Depository, or the Trustee as its
custodian, or under any Global Security, and the Depository may be treated by
the Issuer, the Trustee and any agent of the Issuer or the Trustee as the
absolute owner of each Global Security for all purposes whatsoever.  Notwithstanding the foregoing, nothing herein



 


44

















 


shall prevent the Issuer,
the Trustee or any agent of the Issuer or the Trustee from giving effect to any
written certification, proxy or other authorization furnished by the Depository
or impair, as between the Depository and its Agent Members, the operation of
customary practices governing the exercise of the rights of a Holder of any
Security.


 


(b)           Transfers of Global
Securities shall be limited to transfers in whole, but not in part, to the
Depository, its successors or their respective nominees.  Interests of beneficial owners in any Global
Security may be transferred or, subject to Section 2.1, exchanged for
Physical Securities in accordance with the rules and procedures of the
Depository and the provisions of Section 2.16.  In addition, U.S. Physical Securities and Offshore
Physical Securities shall be transferred to all beneficial owners in exchange
for their beneficial interests in U.S. Global Securities or Offshore Global
Securities, as the case may be, if (i) the Depository notifies the Issuer
that it is unwilling or unable to continue as Depository for the U.S. Global
Securities or the Offshore Global Securities and a successor depositary is not
appointed by the Issuer within 90 days of such notice or (ii) an Event of
Default has occurred and is continuing and the Registrar has received a written
request from the Depository or the Trustee to issue Physical Securities.


 


(c)           In connection with any
transfer or exchange of a portion of the beneficial interest in any Global
Security to beneficial owners pursuant to paragraph (b), the Registrar shall
(if one or more Physical Securities are to be issued) reflect on its books and
records the date and a decrease in the principal amount of such Global Security
in an amount equal to the principal amount of the beneficial interest in such
Global Security to be transferred, and the Issuer shall execute, and the
Trustee shall authenticate and make available for delivery, one or more U.S.
Physical Securities or Offshore Physical Securities, as the case may be, of
like tenor and amount.


 


(d)           In connection with the
transfer of U.S. Global Securities or Offshore Global Securities, in whole, to
beneficial owners pursuant to paragraph (b), the U.S. Global Securities or the
Offshore Global Securities, as the case may be, shall be deemed to be
surrendered to the Trustee for cancellation, and the Issuer shall execute, and
the Trustee shall authenticate and make available for delivery, to each
beneficial owner identified by the Depository in exchange for its beneficial
interest in such U.S. Global Securities or Offshore Global Securities, as the
case may be, an equal aggregate principal amount of U.S. Physical Securities or
Offshore Physical Securities, as the case may be, of authorized denominations.


 


(e)           Any Physical Security
constituting a Restricted Security delivered in exchange for an interest in a
Global Security pursuant to paragraph (b) or (c) shall, except as
otherwise provided by paragraphs (a)(i)(x), (c), (d)(ii) and (e) of Section 2.16,
bear the legend regarding transfer restrictions applicable to the Physical
Securities set forth in Section 2.14.


 


(f)            The Holder of a Global
Security 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 Securities.


 


2.16.        Special Transfer Provisions.


 


(a)           Transfers to Non-QIB
Institutional Accredited Investors.  The following provisions shall apply with
respect to the registration of any proposed transfer of a Security constituting



 


45

















 


a Restricted Security to any institutional
accredited investor (as defined in Rule 501(a)(1), (2), (3) or (7) under
the Securities Act) (an “Accredited Investor” or an “Institutional
Accredited Investor”) which is not a QIB (excluding Non-U.S. Persons):


 


(i)            the Registrar
shall register the transfer of any Security constituting a Restricted Security,
whether or not such Security bears the Private Placement Legend, if (x) the
transferee certifies that it is not an Affiliate of the Issuer and the requested
transfer is after the first anniversary of the later of the (a) Issue Date
and (b) the last date on which the Issuer or an Affiliate of the Issuer
was the owner of such Security (or any predecessor Security) or such shorter
period of time as permitted by Rule 144 under the Securities Act or any
successor provision thereunder or (y) the proposed transferee has delivered
to the Registrar a certificate substantially in the form of Exhibit C
hereto and if such transfer is in respect of an aggregate principal amount of
Securities of less than $250,000, the proposed transferee has delivered to the
Registrar and the Issuer an Opinion of Counsel acceptable to the Issuer that
such transfer is in compliance with the Securities Act and such other
certifications, legal opinions or other information that the Trustee may
reasonably request in order to confirm that such transaction is being made
pursuant to an exemption from or in a transaction not subject to the
registration requirements of the Securities Act; and


 


(ii)           if the proposed
transferor is an Agent Member holding a beneficial interest in the U.S. Global
Security, the Registrar shall register the transfer of any Security constituting
a Restricted Security, whether or not such Security bears a Private Placement
Legend upon receipt by the Registrar of (x) the certificate, if any,
required by paragraph (i) above and (y) instructions given in
accordance with the Depository’s and the Registrar’s procedures, whereupon (a) the
Registrar shall reflect on its books and records the date and (if the transfer
does not involve a transfer of outstanding U.S. Physical Securities) a decrease
in the principal amount of the applicable U.S. Global Security in an amount
equal to the principal amount of the beneficial interest in such U.S. Global
Security to be transferred, and (b) the Issuer shall execute and the
Trustee shall authenticate and make available for delivery one or more U.S.
Physical Securities of like tenor and amount.


 


(b)           Transfers to QIBs.  The following provisions shall apply with
respect to the registration of any proposed transfer of a Security to a QIB
(excluding transfers to Non-U.S. Persons):


 


(i)            if the Security
to be transferred consists of (x) either Offshore Physical Securities
prior to the removal of the Private Placement Legend or U.S. Physical Securities,
the Registrar shall register the transfer if such transfer is being made by a
proposed transferor who has checked the box provided for on the form of
Security stating, or has otherwise advised the Issuer and the Registrar 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
Security stating, or has otherwise advised the Issuer and the Registrar in
writing, that it is purchasing the Security 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 


 


46

















 


being
made in reliance on Rule 144A and acknowledges that it has received such
information regarding the Issuer 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 or (y) an interest
in the U.S. Global Securities, the transfer of such interest may be effected
only through the book entry system maintained by the Depository; and


 


(ii)           if the proposed
transferee is an Agent Member, and the Securities to be transferred consist of
U.S. Physical Securities which after transfer are to be evidenced by an
interest in a U.S. Global Security, upon receipt by the Registrar of
instructions given in accordance with the Depository’s and the Registrar’s
procedures, the Registrar shall reflect on its books and records the date and
an increase in the principal amount of the applicable U.S. Global Security in
an amount equal to the principal amount of the U.S. Physical Securities to be
transferred, and the Trustee shall cancel the U.S. Physical Securities so
transferred.


 


(c)           Transfers of Interests in
the Permanent Offshore Global Securities or Unlegended Offshore Physical
Securities.  The
following provisions shall apply with respect to any transfer of interests in
Permanent Offshore Global Securities or unlegended Offshore Physical
Securities.  The Registrar shall register
the transfer of any such Security without requiring any additional
certification.


 


(d)           Transfers to Non-U.S.
Persons at Any Time.  The
following provisions shall apply with respect to any transfer of a Security to
a Non-U.S. Person:


 


(i)            Prior to the
41st day after the Issue Date, the Registrar shall register any proposed
transfer of a Security to a Non-U.S. Person upon receipt of a certificate
substantially in the form of Exhibit D hereto from the proposed
transferor.


 


(ii)           On and after
the 41st day after the Issue Date, the Registrar shall register any proposed
transfer to any Non-U.S. Person if the Security to be transferred is a U.S.
Physical Security or an interest in U.S. Global Securities, upon receipt of a
certificate substantially in the form of Exhibit D hereto from the
proposed transferor.


 


(iii)          (a) If the
proposed transferor is an Agent Member holding a beneficial interest in the
U.S. Global Securities, upon receipt by the Registrar of (x) the
documents, if any, required by paragraph (ii) and (y) instructions in
accordance with the Depository’s and the Registrar’s procedures, the Registrar
shall reflect on its books and records the date and a decrease in the principal
amount of the U.S. Global Securities in an amount equal to the principal amount
of the beneficial interest in the U.S. Global Securities to be transferred, and
(b) if the proposed transferee is an Agent Member, upon receipt by the
Registrar of instructions given in accordance with the Depository’s and the
Registrar’s procedures, the Registrar shall reflect on its books and records
the date and an increase in the principal amount of the Offshore Global
Securities in an amount equal to the principal amount of the U.S. Physical
Securities or the U.S. Global Securities, as the case may be, to be
transferred, and the Trustee shall cancel the U.S. Physical Security, if any,
so transferred or decrease the amount of the U.S. Global Security.


 


47

















 


(e)           Private Placement Legend.  Upon the registration of transfer, exchange
or replacement of Securities not bearing the Private Placement Legend, the
Registrar shall make available for delivery Securities that do not bear the
Private Placement Legend.  Upon the registration
of transfer, exchange or replacement of Securities bearing the Private
Placement Legend, the Registrar shall make available for delivery only
Securities that bear the Private Placement Legend unless (i) the
circumstance contemplated by paragraph (a)(i)(x), (c) or (d)(ii) of
this Section 2.16 exists or (ii) there is delivered to the Registrar
an Opinion of Counsel reasonably satisfactory to the Issuer 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.


 


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


 


The Registrar shall retain copies of all letters,
notices and other written communications received pursuant to Section 2.15
or this Section 2.16 in accordance with its customary procedures.  The Issuer shall have the right to inspect
and make copies of all such letters, notices or other written communications at
any reasonable time upon the giving of reasonable written notice to the
Registrar.


 


(g)           No Obligation of the Trustee.  The Trustee shall have no responsibility or
obligation to any beneficial owner of a Global Security, a member of, or a
participant in the Depository or any other Person with respect to the accuracy
of the records of the Depository or its nominee or of any participant member
thereof, with respect to any ownership interest in the Securities or with
respect to the delivery to any participant, member, beneficial owner or other
Person (other than the Depository) of any notice (including any notice of
redemption or repurchase) or the payment of any amount, under or with respect
to such Securities.  All notices and
communications to be given to the Holders and all payments to be made to
Holders under the Securities shall be given or made only to the registered
Holders (which shall be the Depository or its nominee in the case of a Global
Security).  The rights of beneficial
owners in any Global Security shall be exercised only through the Depository
subject to the applicable rules and procedures of the Depository.  The Trustee may rely and shall be fully
protected in relying upon information furnished by the Depository with respect
to its members, participants and any beneficial owners.


 


(h)           The Trustee shall have no
obligation or duty to monitor, determine or inquire as to compliance with any
restrictions on transfer imposed under this Indenture or under applicable law
with respect to any transfer of any interest in any Security (including any
transfers between or among Depository participants, members or beneficial
owners in any Global Security) other than to require delivery of such certificates
and other documentation or evidence as are expressly required by, and to do so
if and when expressly required by, the terms of this Indenture, and to examine
the same to determine substantial compliance as to form with the express requirements
hereof.


 


48

















 


ARTICLE THREE


 


REDEMPTION


 


3.1.          Notices to Trustee.


 


If the Issuer elects to redeem Securities pursuant
to Paragraph 5 of the Securities, they shall notify the Trustee in writing of
the Redemption Date, the Redemption Price and the principal amount of the
applicable Securities to be redeemed. 
The Issuer shall give notice of redemption to the Paying Agent and
Trustee at least 45 days but not more than 60 days before the Redemption Date
(unless a shorter notice shall be agreed to by the Trustee in writing),
together with an Officers’ Certificate stating that such redemption will comply
with the conditions contained herein.


 


3.2.          Selection of Securities to
Be Redeemed.


 


In the event that less than all of the Securities
are to be redeemed at any time, selection of such Securities for redemption
will be made by the Trustee in compliance with the requirements of the
principal national securities exchange, if any, on which such Securities are
listed or, if such Securities are not then listed on a national securities
exchange, on a pro rata basis; provided, however,
that no Securities of a principal amount of $2,000 or less shall be redeemed in
part; and provided, further, that if a partial redemption is made with the Net Cash
Proceeds of an Asset Sale or Equity Offering, or any Taking or Destruction,
selection of the Securities or portions thereof for redemption shall be made by
the Trustee on a pro rata basis or on as nearly a pro rata basis as is practicable (subject to the procedures
of the Depository), unless such method is otherwise prohibited.


 


3.3.          Notice of Redemption.


 


At least 30 days but not more than 60 days before a
Redemption Date, the Issuer shall mail a notice of redemption by first class
mail, postage prepaid, to each Holder whose Securities are to be redeemed at
its registered address.  At the Issuer’s
request at least 45 days before a Redemption Date (unless a shorter period
shall be acceptable to the Trustee), the Trustee shall give the notice of
redemption in the Issuer’s name and at the Issuer’s expense.  Each notice of redemption shall identify the
Securities to be redeemed and shall state:


 


(a)           the Redemption Date;


 


(b)           the Redemption Price and the
amount of accrued interest, if any, to be paid;


 


(c)           the name and address of the
Paying Agent;


 


(d)           that Securities called for
redemption must be surrendered to the Paying Agent to collect the Redemption
Price plus accrued interest, if any;


 


49

















 


(e)           that, unless the Issuer
defaults in making the redemption payment, interest on Securities called for
redemption ceases to accrue on and after the Redemption Date, and the only
remaining right of the Holders of such Securities is to receive payment of the
Redemption Price and accrued interest, if any, upon surrender to the Paying
Agent of the Securities redeemed;


 


(f)            if any Security is being
redeemed in part, the portion of the principal amount of such Security to be
redeemed and that, after the Redemption Date, and upon surrender of such
Security, a new Security or Securities in aggregate principal amount equal to
the unredeemed portion thereof will be issued;


 


(g)           if fewer than all the
Securities are to be redeemed, the identification of the particular Securities
(or portion thereof) to be redeemed, as well as the aggregate principal amount
of Securities to be redeemed and the aggregate principal amount of Securities
to be outstanding after such partial redemption;


 


(h)           the Paragraph of the
Securities pursuant to which the Securities are to be redeemed; and


 


(i)            the CUSIP or ISIN number, if
any, printed on the Securities being redeemed and a statement that no
representation is made as to the correctness or accuracy of the CUSIP or ISIN
number, if any, listed in such notice or printed on the Securities.


 


The notice, if mailed in a 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
Security designated for redemption in whole or in part shall not affect the
validity of the proceedings for the redemption of any other Security.


 


3.4.          Effect of Notice of
Redemption.


 


Once notice of redemption is mailed in accordance
with Section 3.3, Securities called for redemption become due and payable
on the Redemption Date and at the Redemption Price plus accrued interest, if
any.  Upon surrender to the Trustee or
Paying Agent, such Securities called for redemption shall be paid at the
Redemption Price (which shall include accrued interest thereon to the
Redemption Date), but installments of interest, the maturity of which is on or
prior to the Redemption Date, shall be payable to Holders of record at the
close of business on the relevant Record Dates.


 


3.5.          Deposit of Redemption Price.


 


On or before 11:00 a.m. New York time on the
Redemption Date, the Issuer shall deposit with the Paying Agent U.S. Legal
Tender sufficient to pay the Redemption Price plus accrued interest, if any, of
all Securities to be redeemed on that date.


 


If the Issuer complies with the preceding paragraph,
then, unless the Issuer defaults in the payment of such Redemption Price plus
accrued interest, if any, interest on the Securities to be 


 


50

















 


redeemed will cease to
accrue on and after the applicable Redemption Date, whether or not such
Securities are presented for payment.


 


3.6.          Securities Redeemed In Part.


 


Upon surrender of a Security that is to be redeemed
in part only, the Trustee shall upon written instruction from the Issuer
authenticate for the Holder a new Security or Securities in a principal amount
equal to the unredeemed portion of the Security surrendered.


 


ARTICLE FOUR


 


COVENANTS


 


4.1.          Payment of Securities.


 


The Issuer shall pay the principal of, premium, if
any, and interest on the Securities in the manner provided in the
Securities.  An installment of principal
of, premium, if any, or interest on the Securities shall be considered paid on
the date it is due if the Trustee or Paying Agent holds on that date U.S. Legal
Tender designated for and sufficient to pay the installment.  If the Issuer or any Subsidiary of the Issuer
acts as Paying Agent, an installment of principal, premium, if any, or interest
shall be considered paid on the date it is due if the entity acting as Paying
Agent complies with the second sentence of Section 2.4.  Interest on the Securities will be computed
on the basis of a 360-day year comprised of twelve 30-day months.  As provided in Section 6.9, upon any
bankruptcy or reorganization procedure relative to the Issuer, the Trustee
shall serve as Paying Agent, if any, for the Securities.


 


4.2.          Maintenance of Office or
Agency.


 


The Issuer shall maintain in the Borough of
Manhattan, The City of New York, the office or agency required under Section 2.3.  The Issuer shall give prompt written notice
to the Trustee of the location, and any change in the location, of such office
or agency.  If at any time the Issuer
shall fail to maintain any such required 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 address of the Trustee set
forth in Section 13.2.


 


The Issuer may also from time to time designate one
or more other offices or agencies where the Securities may be presented or surrendered
for any or all such purposes and may from time to time rescind such
designations.  The Issuer will give
prompt written notice to the Trustee of any such designation or rescission and
of any change in the location of any such other office or agency.


 


The Issuer hereby initially designates the Trustee
at its address c/o U.S. Bank National Association, U.S. Bank Trust New York,
100 Wall Street, New York, New York, 10005, as such office of the Issuer in
accordance with Section 2.3.


 


51

















 


4.3.          Limitation on Restricted
Payments.


 


The Company shall not, and shall not cause or permit
any of its Restricted Subsidiaries to, directly or indirectly, (1) declare
or pay any dividend or make any distribution (other than dividends or
distributions payable in Qualified Capital Stock of the Company) on or in respect
of shares of the Company’s Capital Stock to holders of such Capital Stock; (2) purchase,
redeem or otherwise acquire or retire for value any Capital Stock of the
Company or any warrants, rights or options to purchase or acquire shares of any
class of such Capital Stock of the Company; (3) make any principal payment
on, purchase, defease, redeem, prepay, decrease or otherwise acquire or retire
for value, prior to any scheduled final maturity, scheduled repayment or scheduled
sinking fund payment, any Indebtedness of the Company that is subordinate or
junior in right of payment to the Securities or any Guarantee (other than
Indebtedness described in clause (7) of the definition of “Permitted
Indebtedness”); or (4) make any Investment (other than Permitted Investments)
(each of the foregoing actions set forth in clauses (1), (2), (3) and (4) being
referred to as a “Restricted Payment”), if at the time of such
Restricted Payment or immediately after giving effect thereto:


 


(a)           a Default or an Event of
Default shall have occurred and be continuing; or


 


(b)           the Company is not able to
incur at least $1.00 of additional Indebtedness (other than Permitted
Indebtedness) in compliance with Section 4.4; or


 


(c)           the aggregate amount of
Restricted Payments (including such proposed Restricted Payment) made
subsequent to the Issue Date (the amount expended for such purposes, if other
than in cash, being the fair market value of such property as determined
reasonably and in good faith by the Board of Directors of the Company whose
determination shall be conclusive) shall exceed the sum of:


 


(i)            50% of the cumulative Consolidated
Net Income (or if cumulative Consolidated Net Income shall be a loss, minus
100% of such loss) of the Company for the period (treating such period as a
single accounting period) commencing on the first day of the first full fiscal
quarter commencing after the Issue Date to and including the last day of the
fiscal quarter ended immediately prior to the date of such calculation for
which consolidated financial statements are available; plus


 


(ii)           100% of the aggregate Net
Cash Proceeds received by the Company from any Person (other than a Subsidiary
of the Company) from the issuance and sale subsequent to the Issue Date of
Qualified Capital Stock of the Company; plus


 


(iii)          without duplication of any
amounts included in clause (c)(ii) above, 100% of the aggregate Net Cash
Proceeds of any equity contribution received by the Company from a holder of
the Company’s Capital Stock; plus


 


(iv)          the amount by which
Indebtedness of the Company or any of its Restricted Subsidiaries is reduced on
the Company’s balance sheet upon the 


 


52

















 


conversion or exchange
subsequent to the Issue Date of any Indebtedness of the Company or any of its
Restricted Subsidiaries incurred after the Issue Date into or for Qualified
Capital Stock of the Company; plus


 


(v)           without duplication, the sum
of:


 


(a)           the aggregate
amount returned in cash on or with respect to Investments (other than Permitted
Investments) made subsequent to the Issue Date whether through interest
payments, principal payments, dividends or other distributions or payments;


 


(b)           the net cash
proceeds received by the Company or any Restricted Subsidiary of the Company
from the disposition of all or any portion of such Investments (other than to a
Subsidiary of the Company); and


 


(c)           upon
redesignation of an Unrestricted Subsidiary as a Restricted Subsidiary, the
fair market value of such Subsidiary (valued in each case as provided in the
definition of “Investment”);


 


provided, however, that the sum of clauses (a), (b) and
(c) above shall not exceed the aggregate amount of all such Investments
made by the Company or any Restricted Subsidiary in the relevant Person or
Unrestricted Subsidiary subsequent to the Issue Date.


 


Notwithstanding the foregoing, the provisions set
forth in the immediately preceding paragraph do not prohibit:


 


(1)           the payment of any dividend or other distribution
within 60 days after the date of declaration of such dividend or other
distribution if the dividend or other distribution would have been permitted on
the date of declaration;


 


(2)           the acquisition of any shares of Capital Stock of
the Company, either (a) solely in exchange for shares of Qualified Capital
Stock of the Company, or (b) through the application of net proceeds of a
substantially concurrent sale for cash (other than to a Subsidiary of the
Company) of shares of Qualified Capital Stock of the Company;


 


(3)           the acquisition of any Indebtedness of the Company
that is subordinate or junior in right of payment to the Securities or a
Guarantee either (a) solely in exchange for shares of Qualified Capital
Stock of the Company, or (b) through the application of the net proceeds
of a substantially concurrent sale for cash (other than to a Subsidiary of the
Company) of (i) shares of Qualified Capital Stock of the Company, or (ii) Refinancing
Indebtedness;


 


(4)           if no Default or Event of Default shall have
occurred and be continuing, repurchases by the Issuer of Capital Stock of the
Company from officers, directors and employees of the Company or any of its
Subsidiaries or their authorized representatives 


 


53

















 


upon the death, disability
or termination of employment of such employees or termination of their seat on
the Board of Directors of the Company, in an aggregate amount not to exceed
$2.0 million in any calendar year with unused amounts in any calendar year being
carried over to succeeding calendar years subject to a maximum of $4.0 million
in any calendar year;


 


(5)           if no Default or Event of Default shall have
occurred and be continuing, other Restricted Payments in an aggregate amount
not to exceed $25.0 million; and


 


(6)           repurchases of Capital Stock of the Company deemed
to occur upon the exercise of stock options, warrants or other convertible securities,
to the extent such Capital Stock represents a portion of the consideration for
such exercise.


 


In determining the aggregate amount of
Restricted Payments made subsequent to the Issue Date in accordance with clause
(c) of the immediately preceding paragraph, amounts expended pursuant to
clauses (1), (2)(b), (3)(b)(i), (4) and (5) shall be included in such
calculation.


 


Not later than the date of making any Restricted
Payment, the Company shall deliver to the Trustee an Officers’ Certificate
stating that such Restricted Payment complies with this Indenture and setting
forth in reasonable detail the basis upon which the required calculations were
computed, which calculations may be based upon the Company’s latest available
internal quarterly financial statements.


 


4.4.          Limitation on Incurrence of
Additional Indebtedness.


 


(a)           The Company shall not, and
shall not permit any of its Restricted Subsidiaries to, directly or indirectly,
create, incur, assume, guarantee, acquire, become liable, contingently or
otherwise, with respect to, or otherwise become responsible for payment of
(collectively, “incur”) any Indebtedness
(other than Permitted Indebtedness); provided, however, that if no Default or Event of
Default shall have occurred and be continuing at the time of or as a consequence
of the incurrence of any such Indebtedness, the Company and any of its
Restricted Subsidiaries that is, or upon such incurrence becomes, a Guarantor
may incur Indebtedness (including, without limitation, Acquired Indebtedness) and
any Restricted Subsidiary of the Company that is not, or will not become, upon
such incurrence, a Guarantor may incur Acquired Indebtedness, in each case, if
on the date of the incurrence of such Indebtedness, after giving effect to the
incurrence thereof, the Consolidated Fixed Charge Coverage Ratio of the Company
is greater than 2.25 to 1.0.


 


(b)           The Company shall not, and
shall not permit any Guarantor to, directly or indirectly, incur any Indebtedness
which by its terms (or by the terms of any agreement governing such
Indebtedness) is expressly subordinated in right of payment to any other
Indebtedness of the Company or such Guarantor, as the case may be, unless such
Indebtedness is also by its terms (or by the terms of any agreement governing
such Indebtedness) made expressly subordinate to the Securities or the applicable
Guarantee, as the case may be, to the same extent and in the same manner as
such Indebtedness is subordinated to other Indebtedness of the Company or such
Guarantor, as the case may be.  For purposes
of the foregoing, no Indebtedness will be deemed to be subordinated in right of
payment to any other Indebtedness of the Company or any Guarantor


 


54
















 


solely by virtue of such Indebtedness being
unsecured or by virtue of the fact that the holders of such Indebtedness have
entered into one or more intercreditor agreements giving one or more of such
holders priority over the other holders in the collateral held by them.


 


4.5.          Corporate Existence.


 


Except as otherwise permitted by Article Five,
the Company shall do or cause to be done all things necessary to preserve and
keep in full force and effect its corporate existence and the corporate,
partnership or other existence of each of its Restricted Subsidiaries in accordance
with the respective organizational documents of each such Restricted Subsidiary
and the rights (charter and statutory) and material franchises of the Company
and each of its Restricted Subsidiaries; provided,
however, that neither the Company nor any
Restricted Subsidiary shall be required to preserve any such right or franchise
or in the case of any Restricted Subsidiary, its existence, if (in each case)
the Board of Directors of the Company shall determine that the loss thereof is
not, and will not be, adverse in any material respect to the Holders.


 


4.6.          Payment of Taxes and Other
Claims.


 


The Company shall pay or discharge or cause to be
paid or discharged, before the same shall become delinquent, (a) all
material taxes, assessments and governmental charges levied or imposed upon it
or any of its Subsidiaries or upon the income, profits or property of it or any
of its Restricted Subsidiaries and (b) all lawful claims for labor,
materials and supplies which, in each case, if unpaid, might by law become a
material liability or Lien upon the property of it or any of its Restricted
Subsidiaries; provided, however, that the Company shall not be
required to pay or discharge or cause to be paid or discharged any such tax,
assessment, charge or claim whose amount, (i) the applicability or
validity is being contested in good faith by appropriate proceedings and for
which appropriate provision has been made or (ii) where the failure to
effect such payment or discharge is not adverse in any material respect to the
Holders.


 


4.7.          Maintenance of Properties
and Insurance.


 


(a)           The Company shall cause all
material properties owned by or leased (including, without limitation, these
properties subject to a Mortgage) by it or any of its Restricted Subsidiaries
used or useful to the conduct of its business or the business of any of its
Restricted Subsidiaries, taken as a whole, to be maintained and kept in normal
condition, repair and working order and supplied with all necessary equipment
and shall cause to be made all repairs, renewals, replacements, and betterments
thereof, all as in its judgment may be necessary, so that the business carried
on in connection therewith may be properly and advantageously conducted at all
times; provided, however, subject to Section 4.18, that nothing in this Section 4.7
shall prevent the Company or any of its Restricted Subsidiaries from
discontinuing the use, operation or maintenance of any of such properties, or
disposing of any of them, if such discontinuance or disposal is, in the
judgment of the Board of Directors of the Company or any such Restricted
Subsidiary desirable in the conduct of the business of the Company or any such
Restricted Subsidiary, and if such discontinuance or disposal is not adverse in
any material respect to the Holders; provided further, subject
to Section 4.18,  that nothing in
this Section 4.7 shall prevent the Company or any of its Restricted
Subsidiaries from discontinuing or disposing of any properties to the extent
otherwise permitted by this Indenture.


 


55

















 


(b)           The Company shall maintain,
and shall cause its Restricted Subsidiaries to maintain, insurance with
responsible carriers against such risks and in such amounts, and with such
deductibles, retentions, self-insured amounts and co-insurance provisions, as
are, in the Company’s reasonable judgment, customarily carried by similar
businesses of similar size, including property and casualty loss, workers’
compensation and interruption of business insurance.


 


4.8.          Compliance Certificate;
Notice of Default.


 


(a)           The Company and each
Guarantor shall deliver to the Trustee, within 120 days after the close of each
fiscal year of the Company, an Officers’ Certificate stating that a review of
the activities of each of the Company has been made under the supervision of
the signing Officers with a view to determining whether it has kept, observed,
performed and fulfilled its obligations under this Indenture and further
stating, as to each such Officer signing such certificate, that to the best of
his or her knowledge, the Company or the applicable Guarantor during such
preceding fiscal year have kept, observed, performed and fulfilled each and
every such covenant and no Default or Event of Default occurred during such
year and at the date of such certificate there is no Default or Event of
Default that has occurred and is continuing or, if such signers do know of such
Default or Event of Default, the certificate shall describe its status with
particularity.  The applicable Officers’
Certificate shall also notify the Trustee should either of the Company or any
Guarantor elect to change the manner in which it fixes its fiscal year end.


 


(b)           The Company shall deliver to
the Trustee, in the event that any Officer becomes aware of any Default or
Event of Default in the performance of any covenant, agreement or condition
contained in this Indenture, an Officers’ Certificate specifying the Default or
Event of Default and describing its status with particularity.


 


4.9.          Compliance with Laws.


 


The Company shall comply, and shall cause each of
its Subsidiaries to comply, with all applicable statutes, rules, regulations,
orders and restrictions of the United States, all states and municipalities
thereof, and of any governmental department, commission, board, regulatory authority,
bureau, agency and instrumentality of the foregoing, in respect of the conduct
of their respective businesses and the ownership of their respective
properties, except for such noncompliances as would not in the aggregate have a
material adverse effect on the financial condition or results of operations of
the Company and its Subsidiaries taken as a whole.


 


4.10.        Reports to Holders.


 


Whether or not required by the rules and
regulations of the Commission, so long as any Securities are outstanding, the
Company shall file a copy of the following information and reports with the
Commission for public availability (unless the Commission will not accept such
a filing) and shall furnish to the Holders of Securities and to securities
analysts and prospective investors, upon their written request:


 


(i)            all quarterly
and annual financial information that would be required to be contained in a
filing with the Commission on Forms 10-Q and 10-K under the Exchange Act if the
Company were required to file such Forms, including a “Management’s 


 


56

















 


Discussion
and Analysis of Financial Condition and Results of Operations” that describes
the financial condition and results of operations of the Company and its
consolidated Subsidiaries and, with respect to the annual information only, a
report thereon by the Company’s certified independent accountants; and


 


(ii)           all current
reports that would be required to be filed with the Commission on Form 8-K
under the Exchange Act if the Company were required to file such reports, in
each case within the time periods specified in the Commission’s rules and
regulations.


 


In addition, following the consummation of the
Exchange Offer, whether or not required by the rules and regulations of
the Commission, the Company shall file a copy of all such information and
reports with the Commission for public availability within the time periods specified
in the Commission’s rules and regulations (unless the Commission will not
accept such a filing) and make such information available to securities
analysts and prospective investors upon written request to the Company.


 


In addition, for so long as any Securities remain
outstanding, the Company shall furnish to the Holders and to securities
analysts and prospective investors, upon their request, the information
required to be delivered pursuant to Rule 144A(d)(4) under the Securities
Act.


 


4.11.        Waiver of Stay, Extension or
Usury Laws.


 


The Company and each Guarantor covenants (to the
extent that it may lawfully do so) that it will not at any time insist upon,
plead, or in any manner whatsoever claim or take the benefit or advantage of,
any stay or extension law or any usury law or other law that would prohibit or
forgive the Company or such Guarantor from paying all or any portion of the
principal of, premium, if any, and/or interest on the Securities or the
Guarantee of any such Guarantor as contemplated herein, wherever enacted, now
or at any time hereafter in force, or which may affect the covenants or the
performance of this Indenture, and (to the extent that it may lawfully do so)
each hereby expressly waives all benefit or advantage of any such law, and covenants
that it will 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.


 


4.12.        Limitations on Transactions
with Affiliates.


 


(a)           The Company shall not, and
shall not permit any of its Restricted Subsidiaries to, directly or indirectly,
enter into or permit to exist any transaction or series of related transactions
(including, without limitation, the purchase, sale, lease or exchange of any
property or the rendering of any service) with, or for the benefit of, any of
its Affiliates (each an “Affiliate Transaction”), other than (x) Affiliate
Transactions permitted under paragraph (b) below and (y) Affiliate
Transactions on terms that are no less favorable than those that could
reasonably have been obtained in a comparable transaction at such time on an
arm’s-length basis from a Person that is not an Affiliate of the Company or
such Restricted Subsidiary.  All Affiliate
Transactions (and each series of related Affiliate Transactions which are
similar or part of a common plan) involving aggregate payments or other
property with a fair market value in excess of $10.0 million shall be
approved by the Board of Directors of the Company or such Restricted
Subsidiary, as the case 


 


57

















 


may be, such approval to be evidenced by a
Board Resolution stating that such Board of Directors has determined that such
transaction complies with the foregoing provisions.  If the Company or any Restricted Subsidiary
of the Company enters into an Affiliate Transaction (or a series of related
Affiliate Transactions related to a common plan) that involves an aggregate
fair market value of more than $25.0 million, the Company or such
Restricted Subsidiary, as the case may be, shall, prior to the consummation
thereof, obtain a favorable opinion as to the fairness of such transaction or
series of related transactions to the Company or the relevant Restricted Subsidiary,
as the case may be, from a financial point of view, from an Independent
Financial Advisor and file the same with the Trustee.


 


(b)           The restrictions set forth
in Section 4.12(a) shall not apply to:


 


(i)            reasonable fees
and compensation paid to, and indemnity provided on behalf of, officers,
directors, employees or consultants of the Company or any Restricted Subsidiary
of the Company as determined in good faith by the Company’s Board of Directors;


 


(ii)           transactions
exclusively between or among the Company and any of its Restricted Subsidiaries
or exclusively between or among such Restricted Subsidiaries, provided
such transactions are not otherwise prohibited by this Indenture;


 


(iii)          any agreement
as in effect or entered into as of the Issue Date or any amendment thereto or
any transaction contemplated thereby (including pursuant to any amendment
thereto) or in any replacement agreement thereto so long as any such amendment
or replacement agreement is not more disadvantageous to the Holders in any
material respect than the original agreement as in effect on the Issue Date;


 


(iv)          transactions
effected as part of a Qualified Receivables Transaction;


 


(v)           Restricted
Payments and Permitted Investments permitted by this Indenture (other than
transactions with a Person that is an Affiliate other than as a result of such
Investment);


 


(vi)          the issuance of
securities or other payments, awards or grants in cash, securities or otherwise
pursuant to, or the funding of, employment arrangements, stock options and
stock ownership plans or similar employee benefit plans approved by the Board
of Directors of the Company in good faith; and


 


(vii)         transactions
with a Person (other than an Unrestricted Subsidiary) that is an Affiliate of
the Company solely because the Company owns, directly or indirectly, any
Capital Stock of such Person.


 


4.13.        Limitation on Dividend and
Other Payment Restrictions Affecting Subsidiaries.


 


The Company shall not, and shall not cause or permit
any of its Restricted Subsidiaries (other than a Restricted Subsidiary that has
executed a Guarantee) to, directly or indirectly, create or otherwise cause or
permit to exist or become effective any encumbrance or restriction on 


 


58

















 


the ability of any
Restricted Subsidiary of the Company to (a) pay dividends or make any
other distribution on or in respect of its Capital Stock; (b) make loans
or advances or pay any Indebtedness or other obligation owed to the Company or
any other Restricted Subsidiary of the Company; or (c) transfer any of its
property or assets to the Company or any other Restricted Subsidiary of the
Company, except for such encumbrances or restrictions existing under or by
reason of:


 


(i)            applicable law,
rule, regulation, order, grant or governmental permit;


 


(ii)           this Indenture
and the Security Documents;


 


(iii)          the Credit
Agreement;


 


(iv)          customary
non-assignment provisions of any contract, license or lease of any Restricted
Subsidiary of the Company;


 


(v)           any instrument
governing Acquired Indebtedness, which encumbrance or restriction is not
applicable to any Person, or the properties or assets of any Person, other than
the Person or the properties or assets of the Person so acquired;


 


(vi)          agreements
existing or entered into on the Issue Date to the extent and in the manner such
agreements are in effect on the Issue Date;


 


(vii)         purchase money
obligations for property acquired in the ordinary course of business or
Capitalized Lease Obligations that impose restrictions of the nature discussed
in clause (c) above on the property so acquired;


 


(viii)        contracts for
the sale of assets, including, without limitation, customary restrictions with
respect to a Restricted Subsidiary of the Company pursuant to an agreement that
has been entered into for the sale or disposition of all or substantially all
of the Capital Stock or assets of such Restricted Subsidiary;


 


(ix)           secured
Permitted Indebtedness and secured Indebtedness otherwise permitted to be
incurred pursuant to Sections 4.4 and 4.16 that limit the right of the debtor
to dispose of the assets securing such Indebtedness;


 


(x)            customary
provisions in joint venture agreements and other similar agreements entered
into in the ordinary course of business;


 


(xi)           customary net
worth and restrictions on transfer, assignment or subletting provisions
contained in leases and other agreements entered into by the Company or any
Restricted Subsidiary;


 


(xii)          any restriction
in any agreement or instrument of a Receivables Entity governing a Qualified
Receivables Transaction; provided that such restrictions apply only to
such Receivables Entity or Receivables and Related Assets;


 


(xiii)         any agreement
governing Indebtedness incurred to Refinance the Indebtedness issued, assumed
or incurred pursuant to an agreement referred to in clauses 


 


59

















 


(i) through
(xii) above; provided, however, that the provisions relating to such
encumbrance or restriction contained in any such Indebtedness, taken as a
whole, are no less favorable to the Company in any material respect as
determined by the Board of Directors of the Company in its reasonable and good
faith judgment than the provisions relating to such encumbrance or restriction
contained in agreements referred to in such clauses; or


 


(xiv)        any agreement
governing Permitted Indebtedness or Indebtedness otherwise permitted to be
incurred pursuant to Section 4.4; provided
that the provisions relating to such encumbrance or restriction contained in
such Indebtedness, taken as a whole, are no less favorable to the Company in
any material respect as determined by the Board of Directors of the Company in
its reasonable and good faith judgment than the provisions contained in the
Credit Agreement or in this Indenture as in effect on the Issue Date.


 


4.14.        Limitation on the Issuance
and Sale of Capital Stock of Restricted Subsidiaries.


 


The Company shall not sell, and shall not permit any
Restricted Subsidiary of the Company, directly or indirectly, to issue or sell,
any shares of Capital Stock of a Restricted Subsidiary (including options,
warrants or other rights to purchase shares of such Capital Stock) except:


 


(a)           to the Company or a Wholly
Owned Restricted Subsidiary of the Company;


 


(b)           issuance of directors’
qualifying shares or sales to foreign nationals of shares of Capital Stock of
Foreign Restricted Subsidiaries of the Company, to the extent required by
applicable law;


 


(c)           if, immediately after giving
effect to such issuance or sale, such Restricted Subsidiary would no longer
constitute a Restricted Subsidiary of the Company and any Investment in such
Person remaining after giving effect to such issuance or sale would have been
permitted to be made under Section 4.3 if made on the date of such
issuance or sale; or


 


(d)           the sale or issuance of
Common Stock that is Qualified Capital Stock of a Restricted Subsidiary of the
Company, if the proceeds from such issuance and sale are applied in accordance
with Section 4.18.


 


4.15.        Limitation on Issuances of
Guarantees by Restricted Subsidiaries.


 


The Company shall not permit any Restricted
Subsidiary of the Company, directly or indirectly, to guarantee any
Indebtedness of the Company or any Indebtedness of any Domestic Restricted
Subsidiary of the Company, unless (i) such Restricted Subsidiary
simultaneously executes and delivers a supplemental indenture to this Indenture
providing for a senior secured Guarantee of payment of the Securities by such
Restricted Subsidiary and (ii) such Restricted Subsidiary waives and will
not in any manner whatsoever claim or take the benefit or advantage of any
rights of reimbursement, indemnity or subrogation or any other rights against
the 


 


60

















 


Company or any other
Restricted Subsidiary as a result of any payment by such Restricted Subsidiary
under its Guarantee so long as any Securities remain outstanding.


 


Notwithstanding the foregoing, or Section 4.20,
any Guarantee by a Restricted Subsidiary may provide by its terms that it shall
be automatically and unconditionally released and discharged upon (i) any
sale, exchange or transfer, to any Person not an Affiliate of the Company, of
all of the Company’s and each Restricted Subsidiary’s Capital Stock in, or all
or substantially all the assets of, such Restricted Subsidiary (which sale,
exchange or transfer is not prohibited by this Indenture), (ii) the
release or discharge of the guarantee, if any, which resulted in the creation
of such Guarantee, except a discharge or release by or as a result of payment
under such guarantee or (iii) the designation of such Restricted
Subsidiary as an Unrestricted Subsidiary in accordance with the provisions of
this Indenture.


 


4.16.        Limitation on Liens.


 


The Company shall not, and shall not cause or permit
any of its Restricted Subsidiaries to, directly or indirectly, create, incur,
assume or permit or suffer to exist any Liens of any kind against or upon any
property or assets of the Company or any of its Restricted Subsidiaries whether
owned or leased on the Issue Date or acquired after the Issue Date, or any
proceeds therefrom, or assign or otherwise convey any right to receive income
or profits therefrom unless:


 


(a)           in the case of Liens on any
Collateral, such Lien expressly has Junior Lien Priority on the Collateral
relative to the Securities, and the terms of the Indebtedness secured by such
Liens having Junior Lien Priority are substantially identical to those of the
Securities (other than as to issue price, interest rate, yield and redemption
terms); provided that such Indebtedness may (a) contain terms and
covenants that are, in the reasonable opinion of the Company, less restrictive
to the Company and its Restricted Subsidiaries than the terms and covenants
under the Securities and (b) contain terms and covenants that are more
restrictive to the Company and its Restricted Subsidiaries than the terms and
covenants under the Securities so long as prior to or substantially simultaneously
with the issuance of any such Indebtedness, the Securities and this Indenture
are amended to contain any such more restrictive terms and covenants; provided further,
that such Indebtedness shall have (i) a Weighted Average Life to Maturity
that is greater than the Weighted Average Life to Maturity of the Securities
and (ii) a stated maturity date that is the later than that of the
Securities; and


 


(b)           in all other cases, the
Securities are equally and ratably secured (or secured on a senior basis to
such Lien, if such Lien secures any subordinated Indebtedness),


 


except for the following Liens, which are
expressly permitted:


 


(i)            Liens existing
as of the Issue Date (other than Liens referred to clause (iv) below); provided
that in the case of any property encumbered by any Mortgage, such liens shall
be limited to those that constitute Permitted Encumbrances (as defined in such
Mortgage);


 


61

















 


(ii)           Liens on
Collateral securing Indebtedness under the Credit Agreement permitted to be
incurred pursuant to clause (2) of the definition of “Permitted Indebtedness”;
provided that the holders of such Liens agree to be bound by the
provisions of the Intercreditor Agreement in their capacity as Bank Lenders;


 


(iii)          Liens on
Collateral securing Other Pari Passu Lien Obligations; provided that (i) on
the date of the incurrence of such Indebtedness, and after giving pro forma effect
thereto and to the application of the proceeds thereof, the Consolidated First
Lien Leverage Ratio would be no greater than 2.0 to 1.0 and (ii) that the
holders of such Liens agree to be bound by the provisions of the Intercreditor
Agreement in their capacity as holders of Other Pari Passu Lien Obligations;


 


(iv)          Liens securing
the Initial Notes issued on the Issue Date (but not any other Initial Notes)
and the Exchange Notes with respect to such Initial Notes and any Guarantee
thereof;


 


(v)           Liens in favor
of the Company or a Wholly Owned Restricted Subsidiary of the Company on assets
of any Restricted Subsidiary of the Company; provided that such Liens
are either junior in priority to the Liens securing the Securities or are not secured
by Collateral;


 


(vi)          Liens securing
Refinancing Indebtedness which is incurred to Refinance any Indebtedness
(including, without limitation, Acquired Indebtedness) which has been secured
by a Lien permitted under this Indenture and which has been incurred in accordance
with the provisions of this Indenture; provided, however, that such Liens:


 


(1)           are no less favorable to the Holders and are not
more favorable to the lienholders with respect to such Liens than the Liens in
respect of the Indebtedness being Refinanced; and


 


(2)           do not extend to or cover any property or assets of
the Company or any of its Restricted Subsidiaries not securing the Indebtedness
so Refinanced;


 


(vii)         Liens securing
Indebtedness of Restricted Subsidiaries of the Company that are not Guarantors
so long as such Indebtedness is otherwise permitted under this Indenture; and


 


(viii)        Permitted
Liens.


 


4.17.        Change of Control.


 


(a)           Upon the occurrence of a
Change of Control, the Company shall be obligated to make an offer to purchase
(the “Change of Control Offer”), and shall purchase, on a Business Day
(the “Change of Control Payment Date”) as described below, all or a
portion of the then outstanding Securities at a purchase price equal to 101% of
the principal amount thereof, plus accrued and unpaid interest, if any, thereon
to the Change of Control Payment Date (subject to the right of Holders of
record on the relevant record date to receive interest due on the relevant interest



 


62

















 


payment date).  The Change of Control Offer shall remain open
for at least 20 Business Days and until the close of business on the Change of
Control Payment Date.  Notwithstanding the
occurrence of a Change of Control, the Company shall not be obligated to
repurchase the Securities pursuant to this Section 4.17 in the event that
the Company has exercised its right to redeem all the Securities under the
terms of Article Three of this Indenture and paragraph 5 of the Securities.


 


(b)           Within 30 days following the
date upon which a Change of Control occurs, the Company shall send, by first
class mail, a notice to each Holder, with a copy to the Trustee, which notice
shall govern the terms of the Change of Control Offer.  The notice to the Holders shall contain all
instructions and materials necessary to enable such Holders to tender Securities
pursuant to the Change of Control Offer. 
Such notice shall state:


 


(i)            that the Change
of Control Offer is being made pursuant to this Section 4.17 and that all
Securities tendered and not withdrawn will be accepted for payment;


 


(ii)           the purchase
price (including the amount of accrued interest) and the Change of Control
Payment Date, which shall be a Business Day, that is not earlier than 30 days
or later than 60 days from the date such notice is mailed, other than as may be
required by law;


 


(iii)          that any
Security not tendered will continue to accrue interest;


 


(iv)          that, unless
the Company defaults in making payment therefor, any Security accepted for
payment pursuant to the Change of Control Offer shall cease to accrue interest
after the Change of Control Payment Date;


 


(v)           that Holders
electing to have a Security purchased pursuant to a Change of Control Offer will
be required to surrender the Security, with the form entitled “Option of Holder
to Elect Purchase” on the reverse of the Security completed, to the Paying
Agent at the address specified in the notice prior to the close of business on
the third Business Day prior to the Change of Control Payment Date;


 


(vi)          that Holders
will be entitled to withdraw their election if the Paying Agent receives, not
later than the second Business Day prior to the Change of Control Payment Date,
a telegram, telex, facsimile transmission or letter setting forth the name of
the Holder, the principal amount of the Securities the Holder delivered for
purchase and a statement that such Holder is withdrawing his election to have
such Security purchased;


 


(vii)         that Holders
whose Securities are purchased only in part will be issued new Securities in a
principal amount equal to the unpurchased portion of the Securities
surrendered; and


 


(viii)        the
circumstances and relevant facts regarding such Change of Control.


 


The Company shall not be required to make a Change
of Control Offer upon a Change of Control if any other Person makes the Change
of Control Offer in the manner, at the times and 


 


63

















 


otherwise in compliance with
the requirements set forth in this Section 4.17 applicable to a Change of
Control Offer made by the Company and purchases all Securities validly tendered
and not withdrawn under such Change of Control Offer.  The provisions of this Section 4.17 and
other provisions contained in this Indenture relating to the Company’s obligation
to make a Change of Control Offer may be waived or modified with the written
consent of the Holders of a majority in principal amount of Securities.


 


On or before the Change of Control Payment Date, the
Company shall (i) accept for payment Securities or portions thereof tendered
pursuant to the Change of Control Offer, (ii) deposit with the Paying
Agent U.S. Legal Tender sufficient to pay the purchase price plus accrued
interest, if any, of all Securities so tendered and (iii) deliver to the
Trustee Securities so accepted together with an Officers’ Certificate stating
the Securities or portions thereof being purchased by the Company.  The Paying Agent shall promptly mail to the
Holders of Securities so accepted payment in an amount equal to the purchase
price plus accrued interest, if any, and upon written order of the Company the
Trustee shall promptly authenticate and mail to such Holders new Securities
equal in principal amount to any unpurchased portion of the Securities
surrendered.  Any Securities not so
accepted shall be promptly mailed by the Company to the Holder thereof.  For purposes of this Section 4.17, the
Trustee shall act as the Paying Agent.


 


Any amounts remaining with the Paying Agent after
the purchase of Securities pursuant to a Change of Control Offer shall be
returned by the Trustee to the Company.


 


The Company shall comply with the requirements of Rule 14e-1
under the Exchange Act and any other securities laws and regulations thereunder
to the extent such laws and regulations are applicable in connection with the
repurchase of Securities pursuant to a Change of Control Offer.  To the extent the provisions of any
securities laws or regulations conflict with the provisions of this Section 4.17,
the Company shall comply with the applicable securities laws and regulations
and shall not be deemed to have breached its obligations under this Section 4.17
by virtue thereof.


 


4.18.        Limitation on Asset Sales.


 


(a)           The Company shall not, and shall not permit any of
its Restricted Subsidiaries to, consummate an Asset Sale of any assets that do
not constitute ABL Collateral unless:


 


(i)            the Company or
the applicable Restricted Subsidiary, as the case may be, receives
consideration at the time of such Asset Sale at least equal to the fair market
value of the assets sold or otherwise disposed of (as determined in good faith
by the Company’s senior management or, in the case of an Asset Sale in excess
of $25.0 million, the Board of Directors of the Company);


 


(ii)           at least 75% of
the consideration received by the Company or the Restricted Subsidiary, as the
case may be, from such Asset Sale shall be in the form of (x) cash or Cash
Equivalents, (y) properties and assets to be owned by the Company or any
of its Restricted Subsidiaries and used in a Permitted Business; provided
if the assets to be disposed of in such Asset Sale constitute Notes Collateral,
such properties or assets to be owned by the Company or such Restricted
Subsidiary constitute Notes Collateral, or


 


64
















 


(z)
Capital Stock in one or more Persons engaged in a Permitted Business that are
or thereby become Restricted Subsidiaries of the Company; provided, further,
that if the assets to be disposed of in such Asset Sale constitute Notes
Collateral, such properties or assets held by such Persons the Capital Stock of
which is to be owned by the Company or such Restricted Subsidiary constitute
Notes Collateral, and, in each case, such consideration is received at the time
of such disposition; provided, further, however, that the amount of (a) any
liabilities (as shown on the Company’s or such Restricted Subsidiary’s most
recent balance sheet) of the Company or such Restricted Subsidiary (other than (A) liabilities
that are unsecured or secured by Liens junior to the Lien on the Collateral securing
the Securities and (B) liabilities that are by their terms subordinated to
the Securities) that are assumed by the transferee of any such assets, and (b) any
notes or other securities received by the Company or any such Restricted Subsidiary
from such transferee that are converted by the Company or such Restricted
Subsidiary into cash or Cash Equivalents within 90 days after such Asset Sale
(to the extent of the cash or Cash Equivalents so received) shall be deemed to
be cash or Cash Equivalents actually so converted for the purposes of this
provision only; and


 


(iii)          upon the
consummation of such Asset Sale, the Company shall apply, or cause such
Restricted Subsidiary to apply, the Net Cash Proceeds relating to such Asset Sale
within 365 days of receipt thereof to make an Investment (i) in properties
and assets that replace the properties and assets that were the subject of such
Asset Sale or (ii) in properties and assets that will be used by the
Issuer or a Restricted Subsidiary in a Permitted Business (clauses (i) and
(ii) collectively referred to as “Replacement Assets”); provided
that if the assets disposed of constituted Notes Collateral, any Replacement Assets
constitute Notes Collateral; and


 


(iv)          the Net Cash
Proceeds from any such Asset Sale of Notes Collateral are paid directly by the
purchaser thereof to the Notes Collateral Agent to be held in trust in an Asset
Sale Proceeds Account for application in accordance with this covenant and, if
any property other than cash or Cash Equivalents is included in such Net Cash
Proceeds, such property shall be made subject to the Liens under the Security
Documents.


 


On the 366th day after such Asset Sale or such
earlier date, if any, as the Board of Directors of the Company or of such
Restricted Subsidiary determines not to apply the Net Cash Proceeds relating to
such Asset Sale as set forth in clause (iii) of the immediately preceding
paragraph (each, a “Net Proceeds Offer Trigger Date”), such aggregate
amount of Net Cash Proceeds which have not been applied on or before such Net
Proceeds Offer Trigger Date (each a “Net Proceeds Offer Amount”) shall
be applied by the Company or such Restricted Subsidiary to make an offer to
purchase from the Holders of the Securities, and, if required by the terms of
any Other Pari Passu Lien Obligations, from the holders of such Other Pari
Passu Lien Obligations (the “Net Proceeds Offer”) on a date (the “Net
Proceeds Offer Payment Date”) not less than 30 nor more than 60 days
following the applicable Net Proceeds Offer Trigger Date, on a pro rata basis, an amount of Securities and Other Pari Passu
Lien Obligations equal to the Net Proceeds Offer Amount at a price equal to
100% of the principal amount of the Securities and Other Pari Passu Lien Obligations
to be purchased, plus accrued and unpaid interest thereon, if any, to the date
of purchase.


 


65

















 


If at any time any non-cash consideration received
by the Company or any Restricted Subsidiary of the Company, as the case may be,
in connection with such Asset Sale is converted into or sold or otherwise
disposed of for cash (other than interest received with respect to any such
non-cash consideration), then such conversion or disposition shall be deemed to
constitute an Asset Sale hereunder as of the date of such conversion or
disposition and the Net Cash Proceeds thereof shall be applied in accordance
with this Section 4.18.


 


The Company may defer the Net Proceeds Offer until
there is an aggregate unutilized Net Proceeds Offer Amount equal to or in
excess of $25.0 million resulting from one or more Asset Sales (at which
time, the entire unutilized Net Proceeds Offer Amount, and not just the amount
in excess of $25.0 million, shall be applied as required pursuant to the
second preceding paragraph of this Section 4.18).


 


Notice of each Net Proceeds Offer pursuant to clause
(a) of this Section 4.18 shall be mailed or caused to be mailed, by
first class mail, by the Company within 25 days following the applicable Net
Proceeds Offer Trigger Date to all Holders at their last registered addresses,
with a copy to the Trustee.  A Net
Proceeds Offer shall remain open for a period of 20 Business Days or such
longer period as may be required by law. 
The notice shall contain all instructions and materials necessary to
enable such Holders to tender Securities pursuant to the Net Proceeds Offer and
shall state the following terms:


 


(1)           that Holders may elect to have their Securities purchased
by the Company either in whole or in part (subject to proration as hereinafter
described in the event the Net Proceeds Offer is oversubscribed) in denominations
of $2,000 or in integral multiples of $1,000 of principal amount, at the
applicable purchase price;


 


(2)           that the Net Proceeds Offer is being made pursuant
to clause (a) of this Section 4.18 and that all Securities tendered
will be accepted for payment; provided, however, that if the principal amount of
Securities or other Pari Passu Lien Obligations tendered in the Net Proceeds
Offer exceeds the aggregate amount of the Net Proceeds Offer Amount, the
Company shall select the Securities or Other Pari Passu Lien Obligations to be
purchased on a pro rata basis (based on amounts
tendered);


 


(3)           the purchase price (including the amount of accrued
interest, if any) and the Net Proceeds Offer Payment Date (which shall be no
earlier than 30 days nor later than 60 days from the Net Proceeds Offer Trigger
Date, other than as may be required by applicable law);


 


(4)           that any Security not tendered will continue to
accrue interest;


 


(5)           that, unless the Company defaults in making payment
therefor, any Security accepted for payment pursuant to the Net Proceeds Offer
shall cease to accrue interest after the Net Proceeds Offer Payment Date;


 


(6)           that Holders electing to have a Security purchased
pursuant to the Net Proceeds Offer will be required to surrender the Security,
with the form entitled “Option of Holder to Elect Purchase” on the reverse of
the Security completed, to the Paying 


 


66

















 


Agent at the address specified in the notice prior to the close of
business on the third Business Day prior to the Net Proceeds Offer Payment
Date;


 


(7)           that Holders will be entitled to withdraw their
election if the Paying Agent receives, not later than the second Business Day
prior to the Net Proceeds Offer Payment Date, a facsimile transmission or
letter setting forth the name of the Holder, the principal amount of the
Security, the Holder delivered for purchase and a statement that such Holder is
withdrawing his election to have such Security purchased; and


 


(8)           that Holders whose Securities are purchased only in
part will be issued new Securities in a principal amount at maturity equal to
the unpurchased portion of the Securities surrendered.


 


On or before the Net Proceeds Offer Payment Date,
the Company shall (i) accept for payment Securities or portions thereof
tendered pursuant to the Net Proceeds Offer, (ii) deposit with the Paying
Agent U.S. Legal Tender sufficient to pay the purchase price, plus accrued interest,
if any, of all Securities to be purchased and (iii) deliver to the Trustee
Securities so accepted together with an Officers’ Certificate stating the
Securities or portions thereof being purchased by the Company.  The Paying Agent shall promptly mail to the
Holders of Securities so accepted payment in an amount equal to the purchase
price, plus accrued interest, if any, thereon, set forth in the notice of such
Net Proceeds Offer.  Any Security not so
accepted shall be promptly mailed by the Company to the Holder thereof.  For purposes of this Section 4.18, the
Trustee shall act as the Paying Agent.


 


Any amounts remaining after the purchase of
Securities pursuant to a Net Proceeds Offer shall be returned by the Trustee to
the Company.  To the extent that the
aggregate amount of the Securities tendered pursuant to a Net Proceeds Offer is
less than the Net Proceeds Offer Amount, the Company may use such excess Net
Proceeds Offer Amount for general corporate purposes or for any other purposes
not prohibited by this Indenture.  Upon
completion of any such Net Proceeds Offer, the Net Proceeds Offer Amount shall
be reset at zero.


 


(b)           The Issuer will not, and will not permit any
Restricted Subsidiary to, directly or indirectly consummate an Asset Sale of
ABL Collateral unless:


 


(i)            the Issuer or such Restricted Subsidiary, as the
case may be, receives consideration at the time of such Asset Sale at least
equal to the fair market value (as determined in good faith by the Issuer) of
the assets sold or otherwise disposed of;


 


(ii)           at least 75% of the consideration therefor received
by the Issuer or such Restricted Subsidiary, as the case may be, is in the form
of:


 


(A)          cash or Cash Equivalents,


 


(B)           properties and assets to be owned by the Issuer or
any of its Restricted Subsidiaries and used in a Permitted Business; provided
that the assets to be owned by the Issuer or any of its Restricted Subsidiaries
constitute Collateral; or


 


67

















 


(C)           Capital Stock in one or more Persons engaged in a
Permitted Business that are or thereby become Restricted Subsidiaries of the
Issuer; provided that the properties and assets of such Person
constitute Collateral;


 


and, in each case, such consideration is received at the time of such
disposition; provided that the amount of


 


(1)           any liabilities (as shown on
the Issuer’s or such Restricted Subsidiary’s most recent balance sheet) of the
Issuer or such Restricted Subsidiary (other than (x) liabilities that are
unsecured or secured by Liens junior to the Lien on the Collateral securing the
Securities and (y) liabilities that are by their terms subordinated to the
Securities) that are assumed by the transferee of any such assets, and


 


(2)           any notes or other
securities received by the Issuer or any such Restricted Subsidiary from such
transferee that are converted by the Issuer or such Restricted Subsidiary into
cash or Cash Equivalents within 90 days after such Asset Sale (to the extent of
the cash received)


 


shall be deemed to be cash for the purposes of this provision only; and


 


(iii)          upon the consummation of such Asset Sale, the Issuer
will apply, or cause such Restricted Subsidiary to apply, the Net Cash Proceeds
relating to such Asset Sale within 365 days of receipt thereof either:


 


(A)          reduce (x) any Indebtedness under the Credit
Agreement or any Indebtedness of the Issuer or a Guarantor that in each case is
secured by a Lien on the ABL Collateral that is prior to the Lien on the ABL Collateral
in favor of Holders of the Securities or (y) any Indebtedness of a
Restricted Subsidiary that is not a Guarantor (and, in the case of revolving
obligations under clauses (x) or (y), to correspondingly reduce
commitments with respect thereto), in each case other than Indebtedness owed to
the Issuer or a Subsidiary of the Issuer;


 


(B)           make an investment in Replacement Assets; and/or


 


(C)           a combination of prepayment and investment permitted
by the foregoing clauses (iii)(A) and (iii)(B).


 


On the 366th day after an Asset Sale of ABL
Collateral or such earlier date, if any, as the Board of Directors of the
Issuer or of such Restricted Subsidiary determines not to apply the Net Cash
Proceeds relating to such Asset Sale as set forth in clauses (iii)(A), (iii)(B) and
(iii)(C) of the preceding paragraph (each, an “ABL Net Proceeds Offer
Trigger Date”), such aggregate amount of Net Cash Proceeds which have not
been applied on or before such ABL Net Proceeds Offer Trigger Date (each an “ABL
Net Proceeds Offer Amount”) shall be applied by the Issuer or such
Restricted Subsidiary to make an offer to purchase from all holders of the
Securities, and, if required by the terms of any Other Pari Passu Lien
Obligations, from the holders of such Other Pari Passu Lien Obligations (an “ABL
Net Proceeds Offer”), on a date (the “ABL Net Proceeds 


 


68

















 


Offer Payment Date”) not less
than 30 nor more than 60 days following the applicable ABL Net Proceeds Offer
Trigger Date, on a pro rata basis,
an amount of Securities and Other Pari Passu Lien Obligations equal to the ABL
Net Proceeds Offer Amount at a price equal to 100% of the principal amount of
the Securities and Other Pari Passu Lien Obligations to be purchased, plus
accrued and unpaid interest thereon, if any, to the date of purchase.


 


If at any time any non-cash consideration received
by the Issuer or any Restricted Subsidiary of the Issuer, as the case may be,
in connection with any Asset Sale of ABL Collateral is converted into or sold
or otherwise disposed of for cash (other than interest received with respect to
any such non-cash consideration), then such conversion or disposition shall be
deemed to constitute an Asset Sale of ABL Collateral hereunder as of the date
of such conversion or disposition and the ABL Net Cash Proceeds thereof will be
applied in accordance with this covenant.


 


The Issuer may defer the ABL Net Proceeds Offer
until there is an aggregate unutilized ABL Net Proceeds Offer Amount equal to
or in excess of $25.0 million resulting from one or more Asset Sales of ABL
Collateral (at which time, the entire unutilized ABL Net Proceeds Offer Amount,
and not just the amount in excess of $25.0 million, shall be applied as
required pursuant to the second preceding paragraph).


 


Notice of each ABL Net Proceeds Offer will be mailed
to the record holders as shown on the register of Holders within 25 days
following the ABL Net Proceeds Offer Trigger Date, with a copy to the Trustee,
and will comply with the procedures set forth in this Indenture.  Upon receiving notice of the ABL Net Proceeds
Offer, Holders may elect to tender their Securities in whole or in part in
denominations of $2,000 or integral multiples of $1,000 in excess thereof in
exchange for cash.  To the extent holders
of Securities or Other Pari Passu Lien Obligations properly tender their Securities
in an amount exceeding the ABL Net Proceeds Offer Amount, Securities of
tendering Holders and Other Pari Passu Lien Obligations will be purchased on a pro rata basis (based on amounts tendered).  To the extent that the aggregate amount of
the Securities and Other Pari Passu Lien Obligations tendered pursuant to an
ABL Net Proceeds Offer is less than the ABL Net Proceeds Offer Amount, the
Issuer may use such excess ABL Net Proceeds Offer Amount for general corporate
purposes or for any other purposes not prohibited by this Indenture.  Upon completion of any such ABL Net Proceeds
Offer, the ABL Net Proceeds Offer Amount shall be reset at zero.  An ABL Net Proceeds Offer shall remain open
for a period of 20 business days or such longer period as may be required by law.


 


Pending the final application of any Net Cash
Proceeds pursuant to clause (b) of this covenant, the Issuer or the
applicable Restricted Subsidiary may apply such Net Cash Proceeds temporarily
to reduce Indebtedness outstanding under a revolving credit facility or
otherwise invest such Net Cash Proceeds in any manner not prohibited by this Indenture.


 


For the purposes of this covenant, any sale by the Issuer
or a Restricted Subsidiary of the Capital Stock of a Restricted Subsidiary that
owns assets constituting Notes Collateral or ABL Collateral shall be deemed to
be a sale of such Notes Collateral or ABL Collateral (or, in the event of a
Restricted Subsidiary that owns assets that include any combination of Notes
Collateral and ABL Collateral a separate sale of each of such Notes Collateral
and ABL Collateral).  In the event of any
such sale (or a sale of assets that includes any combination of Notes Collateral
and ABL Collateral), the proceeds received by the Issuer and the Restricted
Subsidiaries in 


 


69

















 


respect of such sale shall
be allocated to the Notes Collateral and ABL Collateral in accordance with their
respective fair market values, which shall be determined by the Board of
Directors of the Issuer or, at the Issuer’s election, an independent third
party.  In addition, for purposes of this
covenant, any sale by the Issuer or any Restricted Subsidiary of the Capital
Stock of any Person that owns only ABL Collateral will not be subject to
paragraph (a) above, but rather will be subject to paragraph (b) above.


 


The Company will comply with the requirements of Rule 14e-1
under the Exchange Act and any other securities laws and regulations thereunder
to the extent such laws and regulations are applicable in connection with the
repurchase of Securities pursuant to a Net Proceeds Offer or ABL Net Proceeds
Offer.  To the extent that the provisions
of any securities laws or regulations conflict with the provisions of this Section 4.18,
the Company shall comply with the applicable securities laws and regulations
and shall not be deemed to have breached its obligations under this Section 4.18
by virtue thereof.  The provisions of
this Section 4.18 and other provisions contained in this Indenture
relating to the Company’s obligation to make a Net Proceeds Offer or ABL Net
Proceeds Offer may be waived or modified with the written consent of the
Holders of a majority in principal amount of the Securities.


 


4.19.        Impairment of Security
Interest.


 


The Company shall not, and shall not permit any of
its Restricted Subsidiaries to, take, or knowingly omit to take, any action,
which action or omission would have the effect of causing a Lien to be created
in favor of the collateral agent for any Other Pari Passu Lien Obligations or
Indebtedness secured by Liens with Junior Lien Priority or the Bank Lenders (in
their respective capacities as such) on any property or assets of the type that
would constitute Collateral unless a Lien is created in favor of the Notes
Collateral Agent for the benefit of the Noteholder Secured Parties with respect
to such property or assets (which Lien in favor of the Noteholder Secured
Parties shall have the priority set forth in the Security Documents).  Such Lien in favor of the Notes Collateral
Agent for the benefit of the Noteholder Secured Parties shall at all times be
in accordance with the provisions of this Indenture and the Security Documents.


 


4.20.        Future Guarantors.


 


(a)           If the Company organizes or
acquires any Domestic Restricted Subsidiary after the Issue Date (each a “New
Domestic Restricted Subsidiary”) having total assets with a book value in
excess of $1.0 million, the Company shall: 
(i) execute and deliver to the Trustee (A) a supplemental
indenture in form reasonably satisfactory to the Trustee pursuant to which each
such New Domestic Restricted Subsidiary shall unconditionally guarantee all of
the Company’s obligations under the Securities and this Indenture and (B) supplemental
Security Documents; (ii) deliver to the Trustee an Opinion of Counsel that
each such supplemental indenture and supplemental Security Document has been
duly authorized, executed and delivered by such New Domestic Restricted
Subsidiary and constitutes a legal, valid, binding and enforceable obligation
of such New Domestic Restricted Subsidiary; and (iii) cause each New
Domestic Restricted Subsidiary to promptly execute and deliver to the Trustee a
Guarantee and the Security Documents or a joinder thereto.


 


70

















 


(b)           After the execution of a
supplemental indenture pursuant to clause (a) of this Section 4.20,
each such New Domestic Restricted Subsidiary party thereto shall be a Guarantor
for all purposes of this Indenture.


 


(c)           In addition to the
requirements set forth in Section 4.20(a) above, the following
additional requirements shall apply:


 


(i)            the Company and
the new Guarantor will cause to be filed and recorded such instruments
(including financing statements) in such jurisdictions as may be required by
applicable law to perfect, preserve and protect the Lien of the Security Documents
on the Collateral owned by or transferred to such new Guarantor;


 


(ii)           any Collateral
owned by or transferred to the new Guarantor shall:  (a) continue to constitute Collateral
under this Indenture and the Security Documents; and (b) not be subject to
any Lien other than Liens permitted by this Indenture and the Security
Documents; and


 


(iii)          the Company
shall have delivered to the Trustee an Officers’ Certificate and an Opinion of
Counsel, each stating that such Security Documents comply with the applicable
provisions of this Indenture, that all conditions precedent in this Indenture relating
to such transaction have been satisfied and that such Security Documents are enforceable,
subject to customary qualifications.


 


4.21.        Further Assurances and
After-Acquired Property.


 


(a)           The Company and each
Guarantor shall execute any and all further documents, financing statements,
agreements and instruments, and take all further action that may be required
under applicable law, or that the Notes Collateral Agent may reasonably
request, in order to grant, preserve, protect and perfect the validity and priority
of the security interests and Liens created or intended to be created by the
Security Documents on the Collateral.  In
addition, from time to time, the Company will reasonably promptly secure the
obligations under this Indenture, the Security Documents and the Intercreditor
Agreement by pledging or creating, or causing to be pledged or created,
perfected security interests and Liens with respect to the Collateral.  Such security interests and Liens will be
created under the Security Documents and other security agreements, mortgages,
deeds of trust and other instruments and documents in form and substance
reasonably satisfactory to the Notes Collateral Agent, and the Company shall deliver
or cause to be delivered to the Notes Collateral Agent all such instruments and
documents (including certificates, legal opinions, title insurance policies and
lien searches) as the Trustee shall reasonably request to evidence compliance
with this covenant.  The Company agrees
to provide such evidence as the Notes Collateral Agent shall reasonably request
as to the perfection and priority status of each such security interest and
Lien.


 


(b)           In furtherance of the
foregoing, promptly following the acquisition by the Company or any Guarantor
of any After-Acquired Property, the Company or such Guarantor shall, if and to
the extent required by Sections 10.1 and 10.2, execute and deliver such
mortgages, deeds of trust, security instruments, financing statements and
certificates and opinions of counsel as shall be reasonably necessary to vest
in the Notes Collateral Agent a perfected security interest in 


 


71

















 


such After-Acquired Property and to have such
After-Acquired Property added to the Notes Collateral or the ABL Collateral, as
applicable, and thereupon all provisions of this Indenture and the Security
Documents relating to the Notes Collateral or the ABL Collateral, as
applicable, shall be deemed to relate to such After-Acquired Property to the
same extent and with the same force and effect.


 


4.22.        Information Regarding
Collateral.


 


The Company will furnish to the Notes Collateral
Agent, with respect to the Company or any Guarantor, prompt written notice of
any change in such Person’s (i) name, (ii) jurisdiction of organization
or formation, (iii) identity or corporate structure or (iv) Organizational
Identification Number.  The Company and
the Guarantors agree not to effect or permit any change referred to in the
preceding sentence unless all filings have been made under the Uniform Commercial
Code or otherwise that are required in order for the Notes Collateral Agent to
continue at all times following such change to have a valid, legal and
perfected security interest in all the Collateral.  The Company also agrees promptly to notify
the Notes Collateral Agent if any material portion of the Collateral is
damaged, destroyed or condemned.


 


ARTICLE FIVE


 


SUCCESSOR CORPORATION


 


5.1.          Merger, Consolidation and
Sale of Assets.


 


(a)           The Company shall not, in a
single transaction or series of related transactions, consolidate or merge with
or into any Person, or sell, assign, transfer, lease, convey or otherwise
dispose of all or substantially all of its assets (determined on a consolidated
basis for the Company and its Restricted Subsidiaries) whether as an entirety
or substantially as an entirety to any Person unless:


 


(i)            either (A) the
Company shall be the surviving or continuing corporation, partnership trust or
limited liability company or (B) the Person (if other than the Company)
formed by such consolidation or into which the Company is merged or the Person
which acquires by sale, assignment, transfer, lease, conveyance or other
disposition the properties and assets of the Company and of its Restricted
Subsidiaries substantially as an entirety (the “Surviving Entity”):


 


(x)            shall be a corporation organized and validly
existing under the laws of the United States or any State thereof or the
District of Columbia; and


 


(y)           shall expressly assume, (i) by supplemental
indenture (in form and substance reasonably satisfactory to the Trustee),
executed and delivered to the Trustee, the due and punctual payment of the
principal of, and premium, if any, and interest on all of the Securities and
the performance of every covenant of the Securities and this Indenture on the
part of the Company to be performed or observed, and (ii) all the
obligations under the Security Documents;


 


72

















 


(ii)           immediately
after giving effect to such transaction on a pro forma basis
and the assumption contemplated by clause (a)(i)(B)(y) above (including
giving effect to any Indebtedness and Acquired Indebtedness incurred or
anticipated to be incurred in connection with or in respect of such transaction),
the Company or such Surviving Entity, as the case may be, shall be able to
incur at least $1.00 of additional Indebtedness (other than Permitted
Indebtedness) pursuant to Section 4.4;


 


(iii)          immediately
before and immediately after giving effect to such transaction on a pro forma
basis and the assumption contemplated by clause (a)(i)(B)(y) above (including,
without limitation, giving effect to any Indebtedness and Acquired Indebtedness
incurred or anticipated to be incurred or repaid and any Lien granted or to be
released in connection with or in respect of the transaction), no Default or
Event of Default shall have occurred or be continuing; and


 


(iv)          the Company or
the Surviving Entity, as the case may be, shall have delivered to the Trustee
an Officers’ Certificate and an Opinion of Counsel, each stating that such
consolidation, merger, sale, assignment, transfer, lease, conveyance or other
disposition and, if a supplemental indenture is required in connection with
such transaction, such supplemental indenture comply with the applicable
provisions of this Indenture and that all conditions precedent in this
Indenture relating to such transaction have been satisfied.


 


Notwithstanding the foregoing, (1) the merger
of the Company with an Affiliate incorporated solely for the purpose of
reincorporating the Company in another jurisdiction shall be permitted and (2) the
merger of any Restricted Subsidiary of the Company into the Company or the
transfer, lease, conveyance or other disposition of all or substantially all of
the assets of a Restricted Subsidiary of the Company to the Company shall be
permitted so long as the Company delivers to the Trustee an Officers’
Certificate stating that the purpose of such merger, transfer, lease,
conveyance or other disposition is not to consummate a transaction that would
otherwise be prohibited by clause (iii) of this Section 5.1(a).


 


(b)           For purposes of Section 5.1(a),
the transfer (by lease, assignment, sale or otherwise, in a single transaction
or series of transactions) of all or substantially all of the properties or
assets of one or more Restricted Subsidiaries of the Company, the Capital Stock
of which constitutes all or substantially all of the properties and assets of
the Company, shall be deemed to be the transfer of all or substantially all of
the properties and assets of the Company.


 


(c)           The following additional
conditions shall apply to each transaction described in Section 5.1(a) above:


 


(i)            the Company or
the relevant Surviving Entity, as applicable, will cause to be filed such
amendments or other instruments, if any, and recorded in such jurisdictions as
may be required by applicable law to preserve and protect the Lien of the
Security Documents on the Collateral owned by or transferred to such Person,
together with such financing statements as may be required to perfect any
security interests in such Collateral which may be perfected by the filing of a
financing statement under the Uniform Commercial Code of the relevant states;


 


73

















 


(ii)           the Collateral
owned by or transferred to the Company or the relevant Surviving Entity, as
applicable, shall:  (a) continue to
constitute Collateral under this Indenture and the Security Documents; and (b) not
be subject to any Lien other than Liens permitted by this Indenture and the
Security Documents;


 


(iii)          the assets of
the Person which is merged or consolidated with or into the relevant Surviving
Entity, to the extent that they are assets of the types which would constitute
Collateral under the Security Documents and which would be required to be
pledged thereunder, shall be treated as After-Acquired Property and such
Surviving Entity shall take such action as may be reasonably necessary to cause
such assets to be made subject to the Lien of the Security Documents in the
manner and to the extent required in this Indenture; and


 


(iv)          the Company
shall have delivered to the Trustee an Officers’ Certificate and an Opinion of
Counsel, each stating that such transaction and, if a supplemental indenture or
supplemental Security Documents, are required in connection with such transaction,
such supplemental indenture and Security Documents comply with the applicable
provisions of this Indenture, that all conditions precedent in this Indenture
relating to such transaction have been satisfied and that such supplemental
indenture and Security Documents are enforceable, subject to customary
qualifications.


 


(d)           Each Guarantor (other than
any Guarantor whose Guarantee is to be released in accordance with the terms of
such Guarantee and this Indenture in connection with any transaction complying
with the provisions of Section 4.18) shall not, and the Company shall not
cause or permit any Guarantor to, consolidate with or merge with or into any
Person other than the Company or any other Guarantor unless:


 


(i)            the Person
formed by or surviving any such consolidation or merger (if other than the
Guarantor) or to which such sale, lease, conveyance or other disposition shall
have been made is a corporation, partnership or limited liability company
organized and validly existing under the laws of the United States, any State
thereof, the District of Columbia thereof or the jurisdiction in which such
Guarantor is organized;


 


(ii)           such Person
expressly assumes (a) by supplemental indenture all of the obligations of
the Guarantor on its Guarantee and (b) the obligations of the Guarantor under
the Security Documents;


 


(iii)          immediately
after giving effect to such transaction on a pro forma basis,
no Default or Event of Default shall have occurred and be continuing; and


 


(iv)          immediately
after giving effect to such transaction and the use of any net proceeds
therefrom on a pro  forma basis, the Company could satisfy
the provisions of clause (ii) of Section 5.1(a).


 


Any merger or consolidation of a Guarantor with and
into the Company (with the Company being the surviving entity) or another
Guarantor that is a Wholly Owned Restricted Subsidiary of the Company need only
comply with clause (iv) of Section 5.1(a).


 


74
















 


5.2.          Successor Corporation
Substituted.


 


Upon any consolidation, combination or merger or any
transfer of all or substantially all of the assets of the Company in accordance
with Section 5.1 in which the Company or any Guarantor, as applicable, is
not the continuing corporation, the successor Person formed by such consolidation
or into which the Company or such Guarantor is merged or to which such conveyance,
lease or transfer is made shall succeed to, and be substituted for, and may exercise
every right and power of, the Company or such Guarantor under this Indenture
and the Securities or any Guarantee, as applicable, with the same effect as if
such Surviving Entity had been named as such.


 


ARTICLE SIX


 


DEFAULT AND REMEDIES


 


6.1.          Events of Default.


 


Each of the following shall be an “Event of Default”:


 


(i)            the failure to
pay interest on any Securities when the same becomes due and payable and the
default continues for a period of 30 days;


 


(ii)           the failure to
pay the principal on any Securities, when such principal becomes due and
payable, at maturity, upon redemption or otherwise (including the failure to
make a payment to purchase Securities tendered pursuant to a Change of Control
Offer, a Net Proceeds Offer or an ABL Net Proceeds Offer);


 


(iii)          a default by
the Company or any Restricted Subsidiary of the Company in the observance or
performance of any other covenant or agreement contained in this Indenture, the
Intercreditor Agreement or the Security Documents, which default continues for
a period of 45 days after the Company receives written notice specifying the
default (and demanding that such default be remedied) from the Trustee or from
the Holders of at least 25% of the outstanding principal amount of the
Securities;


 


(iv)          the failure to
pay at final stated maturity (giving effect to any applicable grace periods and
any extensions thereof) the principal amount of any Indebtedness of the Company
or the Indebtedness of any Restricted Subsidiaries of the Company, or the acceleration
of the final stated maturity of any such Indebtedness by the holders thereof if
the aggregate principal amount of such Indebtedness, together with the
principal amount of any other such Indebtedness in default for failure to pay
principal at final stated maturity or which has been accelerated, exceeds
$25.0 million at any time;


 


(v)           one or more
judgments in an aggregate amount in excess of $25.0 million shall have
been rendered against the Company or any of its Restricted Subsidiaries and
such judgments remain undischarged, unpaid or unstayed for a period of 60 days
after such judgment or judgments become final and non-appealable;


 


75

















 


(vi)          the Company or
any of its Significant Subsidiaries (i) commences a voluntary case or proceeding
under any Bankruptcy Law with respect to itself, (ii) consents to the
entry of a judgment, decree or order for relief against it in an involuntary
case or proceeding under any Bankruptcy Law, (iii) consents to the
appointment of a custodian of it or for substantially all of its property, (iv) consents
to or acquiesces in the institution of a bankruptcy or an insolvency proceeding
against it, (v) makes a general assignment for the benefit of its
creditors or (vi) takes any corporate action to authorize or effect any of
the foregoing;


 


(vii)         a court of
competent jurisdiction enters a judgment, decree or order for relief in respect
of the Company or any of its Significant Subsidiaries in an involuntary case or
proceeding under any Bankruptcy Law, which shall (i) approve as properly
filed a petition seeking reorganization, arrangement, adjustment or composition
in respect of the Company or any of its Significant Subsidiaries, (ii) appoint
a Custodian of the Company or any of its Significant Subsidiaries or for substantially
all of any of its property or (iii) order the winding-up or liquidation of
its affairs; and such judgment, decree or order shall remain unstayed and in
effect for a period of 60 consecutive days;


 


(viii)        any Guarantee
of a Significant Subsidiary ceases to be in full force and effect or any
Guarantee made by a Significant Subsidiary is declared to be null and void and
unenforceable or any Guarantee made by a Significant Subsidiary is found to be
invalid or any such Guarantor denies its liability under its Guarantee (other
than by reason of release of a Guarantor in accordance with the terms of this
Indenture); or


 


(ix)           so long as the
Security Documents have not otherwise been terminated in accordance with their
terms or the Collateral as a whole has not otherwise been released from the
Lien of the Security Documents in accordance with the terms hereof and thereof,
(a) a default by the Company or any Guarantor which is a Significant Subsidiary
in the performance of the Security Documents which materially and adversely
affects the enforceability, validity, perfection or priority of the Lien
granted to the Notes Collateral Agent on the Collateral, in each case taken as
a whole, (b) a repudiation or disaffirmation by the Company or any
Guarantor that is a Significant Subsidiary of the Company’s or such Guarantor’s
material obligations under the Security Documents or (c) a Lien on any
Collateral with a value in excess of $25.0 million created under any Security
Documents shall become unenforceable or invalid against the Company or any
Guarantor that is a Significant Subsidiary for any reason.


 


If, pursuant to clause (iii) above, the
Holders of at least 25% of the then outstanding principal amount of Securities
notify the Company as specified in such clause, such Holders shall similarly
notify the Trustee.  Any notice given
pursuant to clause (iii) above or the immediately preceding sentence shall
be given by registered or certified mail, return receipt requested.


 


6.2.          Acceleration.


 


If an Event of Default (other than an Event of
Default specified in clause (vi) or (vii) of Section 6.1 above
with respect to the Company) shall occur and be continuing, the Trustee or the
Holders of at least 25% in principal amount of outstanding Securities may
declare the principal 


 


76

















 


of, premium, if any, and
accrued interest on all the Securities to be due and payable by notice in
writing to the Company and the Trustee specifying the respective Event of
Default and that it is a “notice of acceleration” (the “Acceleration Notice”),
and the same shall become immediately due and payable.  If an Event of Default specified in clause (vi) or
(vii) of Section 6.1 above with respect to the Company occurs and is
continuing, then all unpaid principal of, and premium, if any, and accrued and
unpaid interest on all of the outstanding Securities shall ipso facto
become and be immediately due and payable without any declaration or other act
on the part of the Trustee or any Holder.


 


At any time after a declaration of acceleration with
respect to the Securities as described in the preceding paragraph, the Holders
of a majority in principal amount of the Securities may rescind and cancel such
declaration and its consequences (i) if the rescission would not conflict
with any judgment or decree, (ii) if all existing Events of Default have
been cured or waived except non-payment of principal, premium, if any, or
interest that has become due solely because of the acceleration, (iii) to
the extent the payment of such interest is lawful, interest on overdue
installments of interest and overdue principal and premium if any, which has
become due otherwise than by such declaration of acceleration, has been paid, (iv) if
the Company has paid the Trustee its reasonable compensation and reimbursed the
Trustee for its expenses, disbursements and advances, and any other amounts due
to the Trustee under Section 7.7 and (v) in the event of the cure or
waiver of an Event of Default of the type described in clause (vi) or (vii) of
Section 6.1, the Trustee shall have received an Officers’ Certificate and
an Opinion of Counsel that such Event of Default has been cured or waived.  No such rescission shall affect any
subsequent Default or Event of Default or impair any right consequent thereon.


 


6.3.          Other Remedies.


 


If an Event of Default occurs and is continuing, the
Trustee and the Notes Collateral Agent may pursue any available remedy by proceeding
at law or in equity to collect the payment of principal of, premium, if any, or
interest on the Securities or to enforce the performance of any provision of
the Securities, this Indenture or the Security Documents.


 


The Trustee may maintain a proceeding even if it
does not possess any of the Securities or does not produce any of them in the
proceeding.  A delay or omission by the
Trustee or any Securityholder in exercising any right or remedy accruing upon
an Event of Default shall not impair the right or remedy or constitute a waiver
of or acquiescence in the Event of Default. 
No remedy is exclusive of any other remedy.  All available remedies are cumulative to the
extent permitted by law.


 


6.4.          Waiver of Past Defaults.


 


Subject to Sections 2.9, 6.2, 6.7 and 9.2, the
Holders of not less than a majority in principal amount of the outstanding
Securities by notice to the Trustee may waive an existing Default or Event of
Default and its consequences, except a Default or Event of Default in the
payment of principal of, premium, if any, or interest on any Security as specified
in clauses (i) and (ii) of Section 6.1.  The Company shall deliver to the Trustee an
Officers’ Certificate stating that the requisite percentage of Holders have
consented to such waiver and attaching copies of such consents.  When a Default or Event of Default is waived,
it is cured and ceases.


 


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6.5.          Control by Majority.


 


Subject to the terms of the Security Documents, the
Holders of not less than a majority in principal amount of the outstanding Securities
may direct the time, method and place of conducting any proceeding for any
remedy available to the Trustee or exercising any trust or power conferred on
it.  Subject to Section 7.1,
however, the Trustee may refuse to follow any direction that conflicts with any
law or this Indenture, that the Trustee determines may be unduly prejudicial to
the rights of another Securityholder, or that may involve the Trustee in
personal liability.


 


6.6.          Limitation on Suits.


 


A Securityholder may not pursue any remedy with
respect to this Indenture or the Securities unless:


 


(i)            the Holder
gives to the Trustee written notice of a continuing Event of Default;


 


(ii)           the Holder or
Holders of at least 25% in principal amount of the outstanding Securities make
a written request to the Trustee to pursue the remedy;


 


(iii)          such Holder or
Holders offer and, if requested, provide to the Trustee indemnity satisfactory
to the Trustee against any loss, liability or expense;


 


(iv)          the Trustee
does not comply with the request within 45 days after receipt of the request
and the offer and, if requested, the provision of indemnity; and


 


(v)           during such
45-day period the Holder or Holders of a majority in principal amount of the
outstanding Securities do not give the Trustee a direction which, in the
opinion of the Trustee, is inconsistent with the request.


 


A Securityholder may not use this Indenture to
prejudice the rights of another Securityholder or to obtain a preference or
priority over such other Securityholder.


 


6.7.          Rights of Holders to Receive
Payment.


 


Notwithstanding any other provision of this
Indenture, the right of any Holder to receive payment of principal of, premium,
if any, and interest on a Security, on or after the respective due dates
expressed in such Security, or to bring suit for the enforcement of any such
payment on or after such respective dates, shall not be impaired or affected
without the consent of the Holder.


 


6.8.          Collection Suit by Trustee.


 


If an Event of Default in payment of principal,
premium, if any, or interest specified in clause (i) or (ii) of Section 6.1
occurs and is continuing, the Trustee may recover judgment in its own name and
as trustee of an express trust against the Issuer or any other obligor on the
Securities for the whole amount of principal, premium, if any, and accrued interest
and fees remaining unpaid, together with interest on overdue principal and
premium, if any, and, to the extent that payment of such interest is lawful,
interest on overdue installments of interest, in each case at the 


 


78

















 


rate per annum
borne by the Securities and such further amount as shall be sufficient to cover
the costs and expenses of collection, including the reasonable compensation,
expenses, disbursements and advances of the Trustee, its agents and counsel,
and any other amounts due to the Trustee under Section 7.7.


 


6.9.          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 (including any claim for the reasonable compensation,
expenses, disbursements and advances of the Trustee, its agents and counsel,
and any other amounts due to the Trustee under Section 7.7) and the
Securityholders allowed in any judicial proceedings relating to the Issuer,
their creditors or their property and shall be entitled and empowered to
participate as a member, voting or otherwise, of any official committee
appointed for such matter, to collect and receive any monies or other
securities or property payable or deliverable upon the conversion or exchange
of the Securities or upon any such claims and to distribute the same, and any
Custodian in any such judicial proceedings is hereby authorized by each Securityholder
to make such payments to the Trustee and, in the event that the Trustee shall
consent to the making of such payments directly to the Securityholders, to pay
to the Trustee any amount due to it for the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agent and counsel, and any other
amounts due the Trustee under Section 7.7. 
Nothing herein contained shall be deemed to authorize the Trustee to
authorize or consent to or accept or adopt on behalf of any Securityholder any
plan of reorganization, arrangement, adjustment or composition affecting the
Securities or the rights of any Holder thereof, or to authorize the Trustee to
vote in respect of the claim of any Securityholder in any such proceeding.


 


6.10.        Priorities.


 


Subject to the terms of the Security Documents, if
the Trustee or the Notes Collateral Agent collects any money or property
pursuant to this Article Six, it shall pay out the money or property in
the following order:


 


First: 
to the Trustee and the Notes Collateral Agent for amounts due under Section 7.7
and Section 10.14;


 


Second: 
to Holders for interest accrued on the Securities, ratably, without
preference or priority of any kind, according to the amounts due and payable on
the Securities for interest;


 


Third: 
to Holders for principal amounts and premium, if any, due and unpaid on
the Securities, ratably, without preference or priority of any kind, according
to the amounts due and payable on the Securities for principal; and


 


Fourth: 
to the Issuer or to the Guarantors as their respective interests may appear.


 


The Trustee, upon prior notice to the Issuer, may
fix a record date and payment date for any payment to Securityholders pursuant
to this Section 6.10.


 


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6.11.        Undertaking for Costs.


 


In any suit for the enforcement of any right or
remedy under this Indenture or in any suit against the Trustee for any action
taken or omitted by it as Trustee, a court in its discretion may require the
filing by any party litigant in the suit of an undertaking to pay the costs of
the suit, and the court in its discretion may assess reasonable costs,
including reasonable attorneys’ fees, against any party litigant in the suit,
having due regard to the merits and good faith of the claims or defenses made
by the party litigant.  This Section 6.11
does not apply to a suit by the Trustee, a suit by a Holder pursuant to Section 6.7,
or a suit by a Holder or Holders of more than 10% in principal amount of the
outstanding Securities.


 


6.12.        Restoration of Rights and
Remedies.


 


If the Trustee or any Holder has instituted any
proceeding to enforce any right or remedy under this Indenture and such
proceeding has been discontinued or abandoned for any reason, or has been determined
adversely to the Trustee or to such Holder, then, and in every such case,
subject to any determination in such proceeding, the Issuer, the Trustee and
the Holders shall be restored severally and respectively to their former
positions hereunder and thereafter all rights and remedies of the Issuer,
Trustee and the Holders shall continue as though no such proceeding had been
instituted.


 


6.13.        Rights and Remedies
Cumulative.


 


Except as otherwise provided with respect to the
replacement or payment of mutilated, destroyed, lost or wrongfully taken
Securities in Section 2.7, 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.


 


ARTICLE SEVEN


 


TRUSTEE


 


7.1.          Duties of Trustee.


 


(a)           If an Event of Default has
occurred and is continuing and known to the Trustee, 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 his or her own affairs.


 


(b)           Except during the
continuance of an Event of Default:


 


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(i)            The Trustee
need perform only those duties as are specifically set forth herein or in the
TIA and no duties, covenants, responsibilities or obligations shall be implied
in this Indenture against the Trustee.


 


(ii)           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 (including Officers’ Certificates) or opinions (including Opinions
of Counsel) furnished to the Trustee and conforming to the requirements of this
Indenture.  However, the Trustee shall
examine the certificates and opinions to determine whether or not they conform
to the requirements of this Indenture, but need not verify the contents
thereof.


 


(c)           Notwithstanding anything to
the contrary herein, the Trustee may not be relieved 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 paragraph (b) of this Section 7.1.


 


(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.


 


(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 6.5.


 


(d)           No provision of this
Indenture shall require the Trustee to expend or risk its own funds or
otherwise incur any financial liability in the performance of any of its duties
hereunder or to take or omit to take any action under this Indenture or take
any action at the request or direction of Holders if it shall have reasonable
grounds for believing that repayment of such funds is not assured to it.


 


(e)           Every provision of this
Indenture that in any way relates to the Trustee is subject to this Section 7.1.


 


(f)            The Trustee shall not be
liable for interest on any money received by it except as the Trustee may agree
in writing with the Issuer.  Money held
in trust by the Trustee need not be segregated from other funds except to the
extent required by law.


 


(g)           In the absence of bad faith,
negligence or willful misconduct on the part of the Trustee, the Trustee shall
not be responsible for the application of any money by any Paying Agent other
than the Trustee.


 


7.2.          Rights of Trustee.


 


Subject to Section 7.1:


 


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(a)           The Trustee may rely on any
document believed by it to be genuine and to have been signed or presented by
the proper Person.  The Trustee need not
investigate any fact or matter stated in the document.


 


(b)           Before the Trustee acts or
refrains from acting, it may require an Officers’ Certificate and an Opinion of
Counsel, which shall conform to the provisions of Section 14.5.  The Trustee shall not be liable for any
action it takes or omits to take in good faith in reliance on such certificate
or opinion.


 


(c)           The Trustee may act through
its attorneys and agents and shall not be responsible for the misconduct or
negligence of any agent (other than an agent who is an employee of the Trustee)
appointed with due care.


 


(d)           The Trustee shall not be
liable for any action it takes or omits to take in good faith which it
reasonably believes to be authorized or within its rights or powers.


 


(e)           The Trustee may consult with
counsel and the advice or opinion of such counsel as to matters of law shall be
full and complete authorization and protection from liability in respect of any
action taken, omitted or suffered by it hereunder in good faith and in
accordance with the advice or opinion of such counsel.


 


(f)            The Trustee shall be under
no obligation to exercise any of the rights or powers vested in it by this
Indenture at the request, order or direction of any of the Holders pursuant to
the provisions of this Indenture, unless such Holders shall have offered to the
Trustee reasonable security or indemnity against the costs, expenses and
liabilities which may be incurred therein or thereby.


 


(g)           The Trustee shall not be
bound to make any investigation into the facts or matters stated in any
resolution, certificate (including any Officers’ Certificate), statement, instrument,
opinion (including any Opinion of Counsel), notice, request, direction,
consent, order, bond, debenture, or other paper or document, but the Trustee,
in its discretion, may make such further inquiry or investigation into such
facts or matters as it may see fit and, if the Trustee shall determine to make
such further inquiry or investigation, it shall be entitled, upon reasonable
notice to the Issuer, to examine the books, records and premises of the Issuer,
personally or by agent or attorney.


 


(h)           The Trustee shall not be
required to give any bond or surety in respect of the performance of its powers
and duties hereunder.


 


(i)            The permissive rights of the
Trustee to do things enumerated in this Indenture shall not be construed as
duties.


 


(j)            The Trustee shall not be
charged with knowledge of any Default or Event of Default, of the identity of
any Restricted Subsidiary or the existence of any Change of Control or Asset
Sale unless either (i) a Responsible Officer shall have actual knowledge
thereof or (ii) the Trustee shall have received written notice thereof
from either of the Issuer or any Holder.


 


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(k)           Delivery of reports,
information and documents to the Trustee under Section 4.10 is for informational
purposes only and the Trustee’s receipt of the foregoing shall not constitute
constructive notice of any information contained therein or determinable from
information contained therein, including the Issuer’s compliance with any of
the covenants hereunder.


 


7.3.          Individual Rights of Trustee.


 


The Trustee in its individual or any other capacity
may become the owner or pledgee of Securities and may otherwise deal with the
Issuer, its Subsidiaries (including any Guarantors) or their respective
Affiliates with the same rights it would have if it were not Trustee.  Any Agent may do the same with like
rights.  However, the Trustee must comply
with Sections 7.10 and 7.11.


 


7.4.          Trustee’s Disclaimer.


 


The Trustee shall not be responsible for and makes
no representation as to the validity or adequacy of this Indenture, any
Guarantee or the Securities, it shall not be accountable for the Issuer’s use
of the proceeds from the Securities, and it shall not be responsible for any
statement of the Issuer in this Indenture or any document issued in connection
with the sale of Securities or any statement in the Securities other than the
Trustee’s certificate of authentication. 
The Trustee makes no representations with respect to the effectiveness
or adequacy of this Indenture.


 


7.5.          Notice of Default.


 


If a Default or an Event of Default occurs and is
continuing and the Trustee receives actual notice of such Default or Event of
Default, the Trustee shall mail to each Securityholder notice of the uncured
Default or Event of Default within 60 days after such Default or Event of Default
occurs.  Except in the case of a Default
or an Event of Default in payment of principal of, premium, if any, or interest
on, any Security, including an accelerated payment and the failure to make payment
on the Change of Control Payment Date pursuant to a Change of Control Offer,
the Net Proceeds Offer Payment Date pursuant to a Net Proceeds Offer or the ABL  Net Proceeds Offer Payment Date pursuant to an ABL Net
Proceeds Offer, the Trustee may withhold the notice if and so long as the Board
of Directors, the executive committee, or a trust committee of directors and/or
Responsible Officers, of the Trustee in good faith determines that withholding
the notice is in the interest of the Securityholders.


 


7.6.          Reports by Trustee to
Holders.


 


Within 60 days after each May 15, beginning
with the first May 15 following the date of this Indenture, the Trustee
shall, to the extent that any of the events described in TIA § 313(a) occurred
within the previous twelve months, but not otherwise, mail to each Securityholder
a brief report dated as of such date that complies with TIA § 313(a).  The Trustee also shall comply with TIA §§
313(b), 313(c) and 313(d).


 


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A copy of each report at the time of its mailing to
Securityholders shall be mailed to the Issuer and filed with the Commission and
each securities exchange, if any, on which the Securities are listed.


 


The Issuer shall notify the Trustee if the Securities
become listed on any securities exchange or of any delisting thereof and the
Trustee shall comply with TIA § 313(d).


 


7.7.          Compensation and Indemnity.


 


The Issuer and the Guarantors shall pay to the
Trustee, from time to time, reasonable compensation for its services
hereunder.  The Trustee’s compensation
shall not be limited by any law on compensation of a trustee of an express
trust.  The Issuer and the Guarantors
shall reimburse the Trustee upon request for all reasonable disbursements,
expenses and advances (including reasonable fees and expenses of counsel)
incurred or made by it in addition to the compensation for its services, except
any such disbursements, expenses and advances as may be attributable to the
Trustee’s negligence, bad faith or willful misconduct.  Such expenses shall include the reasonable
fees and expenses of the Trustee’s agents and counsel.


 


The Issuer and the Guarantors shall indemnify the
Trustee and its agents, employees, officers, stockholders and directors for,
and hold them harmless against, any loss, liability or expense (including
reasonable attorneys’ fees and expenses) incurred by them except for such actions
to the extent caused by any negligence, bad faith or willful misconduct on
their part, arising out of or in connection with the acceptance or
administration of this trust including the cost and expense of enforcing this
Indenture and the Securities against the Issuer and the Guarantors (including
this Section 7.7) including the reasonable costs and expenses of defending
themselves against or investigating any claim (whether asserted by the Issuer,
the Guarantors, any Holder or any other Person) or liability in connection with
the exercise or performance of any of the Trustee’s rights, powers or duties
hereunder.  The Trustee shall notify the
Issuer and the Guarantors promptly of any claim asserted against the Trustee or
any of its agents, employees, officers, stockholders and directors for which it
may seek indemnity, provided that any failure to so notify the Issuer and
the Guarantors shall not relieve the Issuer and the Guarantors of their
indemnity obligations hereunder.  The
Issuer and the Guarantors may, subject to the approval of the Trustee, defend
the claim and the Trustee shall cooperate in the defense.  The Trustee and its agents, employees, officers,
stockholders and directors subject to the claim may have separate counsel and
the Issuer and the Guarantors shall pay the reasonable fees and expenses of
such counsel; provided, however, that the Issuer and the Guarantors
will not be required to pay such fees and expenses if, subject to the approval
of the Trustee, it assumes the Trustee’s defense and there is no conflict of
interest between the Issuer and the Guarantors and the Trustee and its agents,
employees, officers, stockholders and directors subject to the claim in
connection with such defense as reasonably determined by the Trustee.  The Issuer and the Guarantors need not pay
for any settlement made without their written consent, which consent will not
be unreasonably withheld, delayed or conditioned.  The Issuer and the Guarantors need not
reimburse any expense or indemnify against any loss or liability to the extent
incurred by the Trustee through its negligence, bad faith or willful
misconduct.


 


To secure the Issuer’s and the Guarantors’ payment
obligations in this Section 7.7, the Trustee shall have a Lien prior to
the Securities against all money or property held or collected


 


84
















 


by the Trustee, in its
capacity as Trustee (provided that any assets or money received in contravention
of the Security Documents shall be applied as set forth in the Security
Documents), except assets or money held in trust to pay principal of, premium, if
any, or interest on particular Securities.


 


When the Trustee incurs expenses or renders services
after an Event of Default specified in clause (vi) or (vii) of Section 6.1
occurs, such expenses and the compensation for such services shall be paid to
the extent allowed under any Bankruptcy Law.


 


Notwithstanding any other provision in this
Indenture, the foregoing provisions of this Section 7.7 shall survive the
satisfaction and discharge of this Indenture or the appointment of a successor
Trustee.


 


7.8.          Replacement of Trustee.


 


The Trustee may resign at any time by so notifying
the Issuer in writing.  The Holders of a
majority in principal amount of the outstanding Securities may remove the
Trustee by so notifying the Issuer and the Trustee and may appoint a successor
Trustee.  The Issuer may remove the
Trustee if:


 


(i)            the Trustee
fails to comply with Section 7.10;


 


(ii)           the Trustee is
adjudged bankrupt or insolvent;


 


(iii)          a receiver or
other public officer takes charge of the Trustee or its property; or


 


(iv)          the Trustee
becomes incapable of acting.


 


If the Trustee resigns or is removed or if a vacancy
exists in the office of Trustee for any reason, the Issuer shall notify each
Holder of such event and shall promptly appoint a successor Trustee.  Within one year after the successor Trustee
takes office, the Holders of a majority in principal amount of the Securities
may appoint a successor Trustee to replace the successor Trustee appointed by
the Issuer.


 


A successor Trustee shall deliver a written acceptance
of its appointment to the retiring Trustee and to the Issuer.  Immediately after that, the retiring Trustee
shall transfer, after payment of all sums then owing to the Trustee pursuant to
Section 7.7, all property held by it as Trustee to the successor Trustee,
subject to the Lien provided in Section 7.7, the resignation or removal of
the retiring Trustee shall become effective, and the successor Trustee shall
have all the rights, powers and duties of the Trustee under this
Indenture.  A successor Trustee shall
mail notice of its succession to each Securityholder.


 


If a successor Trustee does not take office within
60 days after the retiring Trustee resigns or is removed, the retiring Trustee,
the Issuer or the Holders of at least 10% in principal amount of the
outstanding Securities may petition any court of competent jurisdiction for the
appointment of a successor Trustee.


 


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If the Trustee fails to comply with Section 7.10,
any Securityholder may petition any court of competent jurisdiction for the
removal of the Trustee and the appointment of a successor Trustee.


 


Notwithstanding replacement of the Trustee pursuant
to this Section 7.8, the Issuer’s and the Guarantors’ obligations under Section 7.7
shall continue for the benefit of the retiring Trustee.


 


7.9.          Successor Trustee by Merger,
Etc.


 


If the Trustee consolidates with, merges or converts
into, or transfers all or substantially all of its corporate trust business to,
another corporation, the resulting, surviving or transferee corporation without
any further act shall, if such resulting, surviving or transferee corporation
is otherwise eligible hereunder, be the successor Trustee; provided that such corporation shall be otherwise qualified and eligible
under this Article Seven.


 


7.10.        Eligibility;
Disqualification.


 


This Indenture shall always have a Trustee who
satisfies the requirement of TIA §§ 310(a)(1), 310(a)(2) and
310(a)(5).  The Trustee shall have a
combined capital and surplus of at least $50,000,000 as set forth in its most
recent published annual report of condition. 
In addition, if the Trustee is a corporation included in a bank holding
company system, the Trustee, independently of the bank holding company, shall
meet the capital requirements of TIA § 310(a)(2).  The Trustee shall comply with TIA § 310(b); provided, however,
that there shall be excluded from the operation of TIA § 310(b)(1) any
indenture or indentures under which other securities, or certificates of
interest or participation in other securities, of the Issuer are outstanding,
if the requirements for such exclusion set forth in TIA § 310(b)(1) are
met.  The provisions of TIA § 310 shall
apply to the Issuer and any other obligor of the Securities.


 


7.11.        Preferential Collection of
Claims Against the Issuer.


 


The Trustee, in its capacity as Trustee hereunder,
shall comply with TIA § 311(a), excluding any creditor relationship listed in
TIA § 311(b).  A Trustee who has resigned
or been removed shall be subject to TIA § 311(a) to the extent indicated.


 


ARTICLE EIGHT


 


DISCHARGE OF INDENTURE;
DEFEASANCE


 


8.1.          Termination of the Issuer’s
Obligations.


 


The Issuer may terminate its obligations under the
Securities and this Indenture, except those obligations referred to in the penultimate
paragraph of this Section 8.1, if all Securities previously authenticated
and delivered (other than destroyed, lost or stolen Securities which have been
replaced or paid or Securities for whose payment U.S. Legal Tender has
theretofore been deposited with the Trustee or the Paying Agent in trust or
segregated and held in trust by the 


 


86

















 


Issuer and thereafter repaid
to the Issuer, as provided in Section 8.5) have been delivered to the
Trustee for cancellation and the Issuer has paid all sums payable by them
hereunder, or if:


 


(i)            either (x) all
Securities have become due and payable hereunder or (y) will become due
and payable within one year, or are to be called for redemption within one
year, under arrangements reasonably satisfactory to the Trustee for the giving
of notice of such redemption by the Trustee in the name, and at the expense, of
the Issuer, in accordance with the provisions hereof;


 


(ii)           the Issuer
shall have irrevocably deposited or caused to be deposited with the Trustee or
a trustee satisfactory to the Trustee, under the terms of an irrevocable trust
agreement in form and substance satisfactory to the Trustee, as trust funds in
trust solely for the benefit of the Holders of that purpose, U.S. Legal Tender
in such amount as is sufficient without consideration of reinvestment of such
interest, to pay principal of, premium, if any, and interest on the outstanding
Securities to maturity or redemption; provided
that the Trustee shall have been irrevocably instructed to apply such U.S.
Legal Tender to the payment of said principal, premium, if any, and interest
with respect to the Securities;


 


(iii)          no Default or
Event of Default with respect to this Indenture or the Securities shall have
occurred and be continuing on the date of such deposit or shall occur as a
result of such deposit (other than a Default or Event of Default resulting from
the incurrence of Indebtedness all or a portion of the proceeds of which will
be used to defease the Securities pursuant to this Article Eight
concurrently with such incurrence) and such deposit will not result in a breach
or violation of, or constitute a default under, any other instrument or
agreement to which the Issuer is a party or by which the Issuer is bound;


 


(iv)          the Issuer
shall have paid all other sums payable by it hereunder; and


 


(v)           the Issuer
shall have delivered to the Trustee an Officers’ Certificate and an Opinion of
Counsel, each stating that all conditions precedent providing for or relating
to the termination of the Issuer’s obligations under the Securities and this
Indenture have been complied with.


 


Subject to the next sentence and notwithstanding the
foregoing paragraph, the Issuer’s obligations in Sections 2.5, 2.6, 2.7, 2.8,
4.1, 4.2, 7.7, 8.5 and 8.6 shall survive until the Securities are no longer outstanding
pursuant to the last paragraph of Section 2.8.  After the Securities are no longer
outstanding, the Issuer’s obligations in Sections 7.7, 8.5 and 8.6 shall survive.


 


After such delivery or irrevocable deposit, the
Trustee upon request shall acknowledge in writing the discharge of the Issuer’s
obligations under the Securities and this Indenture except for those surviving
obligations specified above.


 


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8.2.          Legal Defeasance and
Covenant Defeasance.


 


(a)           The Issuer may, at its
option by Board Resolutions of the Boards of Directors of the Issuer, at any
time, elect to have either paragraph (b) or (c) below applied to all
outstanding Securities upon compliance with the conditions set forth in Section 8.3.


 


(b)           Upon the Issuer’s exercise
under paragraph (a) hereof of the option applicable to this paragraph (b),
the Issuer and any Guarantor shall, subject to the satisfaction of the conditions
set forth in Section 8.3, be deemed to have been discharged from their
respective obligations with respect to all outstanding Securities and the
corresponding Guarantees on the date the conditions set forth below are
satisfied (hereinafter, “Legal Defeasance”).  For this purpose, Legal Defeasance means that
the Issuer shall be deemed to have paid and discharged the entire Indebtedness
represented by the outstanding Securities, which shall thereafter be deemed to
be “outstanding” only for the purposes of Section 8.4 and the other
Sections of this Indenture referred to in (i) and (ii) below, and to
have satisfied all its other obligations under such Securities and this
Indenture (and the Trustee, on demand of and at the expense of the Issuer,
shall execute proper instruments acknowledging the same), except for the
following provisions, which shall survive until otherwise terminated or
discharged hereunder:  (i) the
rights of Holders of outstanding Securities to receive solely from the trust
fund described in Section 8.4, and as more fully set forth in such Section,
payments in respect of the principal of, premium, if any, and interest on such
Securities when such payments are due, (ii) the Company’s obligations with
respect to such Securities under Article Two and Section 4.2, (iii) the
rights, powers, trust, duties and immunities of the Trustee hereunder and the
Company’s obligations in connection therewith and (iv) this Article Eight.  Subject to compliance with this Article Eight,
the Issuer may exercise its option under this paragraph (b) notwithstanding
the prior exercise of its option under paragraph (c) hereof.


 


(c)           Upon the Issuer’s exercise
under paragraph (a) hereof of the option applicable to this paragraph (c),
the Issuer and each Guarantor shall, subject to the satisfaction of the conditions
set forth in Section 8.3, be released from their obligations, if any,
under the covenants contained in Sections 4.3 and 4.4 and Sections 4.12 through
4.22, 10.1, 10.2, 10.4, 10.5 and Article Five with respect to the
outstanding Securities and the corresponding Guarantees on and after the date
the conditions set forth below are satisfied (hereinafter, “Covenant Defeasance”),
and the Securities shall thereafter be deemed not “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, but
shall continue to be deemed “outstanding” for all other purposes hereunder (it
being understood that such Securities shall not be deemed outstanding for
accounting purposes).  For this purpose,
such Covenant Defeasance means that, with respect to the outstanding
Securities, 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,
whether directly or indirectly, by reason of any reference elsewhere herein to
any such covenant or by reason of any reference in any such covenant 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 6.1(iii),
but, except as specified above, the remainder of this Indenture and such
Securities shall be unaffected thereby. 
In addition, upon the Issuer’s exercise under paragraph (a) hereof
of the option applicable to this 


 


88

















 


paragraph (c), subject to the satisfaction of
the conditions set forth in Section 8.3 hereof, Sections 6.1(iii),
6.1(iv), 6.1(v), 6.1(viii) and 6.1(ix) and shall not constitute
Events of Default.


 


8.3.          Conditions to Legal
Defeasance or Covenant Defeasance.


 


The following shall be the conditions to the
application of either Section 8.2(b) or 8.2(c) to the
outstanding Securities:


 


In order to exercise either Legal Defeasance or
Covenant Defeasance:


 


(i)            the Issuer must
irrevocably deposit with the Trustee, in trust, for the benefit of the Holders,
U.S. Legal Tender or non-callable U.S. Government Obligations which through the
scheduled payment of principal, premium, if any, and interest in respect
thereof in accordance with their terms, will provide, not later than one day
before the due date of any payment on the Securities, U.S. Legal Tender, or a
combination thereof, in such amounts as will be sufficient, in the opinion of a
nationally recognized firm of independent public accountants, to pay the
principal of, premium, if any, and interest on the Securities on the stated
date for payment thereof or on the applicable redemption date, as the case may
be;


 


(ii)           in the case of
an election under Section 8.2(b), the Issuer shall have delivered to the
Trustee an Opinion of Counsel in the United States reasonably acceptable to the
Trustee confirming that (a) the Issuer has received from, or there has
been published by, the Internal Revenue Service a ruling or (b) since the
date of the execution of this Indenture, there has been a change in the
applicable federal income tax law, in either case to the effect that, and based
thereon such Opinion of Counsel shall confirm that, the Holders will not
recognize income, gain or loss for federal income tax purposes as a result of
such Legal 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 Legal Defeasance had not occurred;


 


(iii)          in the case of
an election under Section 8.2(c), the Issuer shall have delivered to the
Trustee an Opinion of Counsel in the United States reasonably acceptable to the
Trustee confirming that the Holders of the Securities 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;


 


(iv)          no Default or
Event of Default shall have occurred and be continuing on the date of such
deposit (other than a Default or Event of Default resulting from the incurrence
of Indebtedness all or a portion of the proceeds of which will be used to
defease the Securities pursuant to this Article Eight concurrently with
such incurrence) or insofar as Sections 6.1(vi) and 6.1(vii) hereof
are concerned, at any time in the period ending on the 91st day after the date
of such deposit;


 


(v)           such Legal
Defeasance or Covenant Defeasance shall not result in a breach or violation of,
or constitute a default under this Indenture (other than a Default or 


 


89

















 


Event
of Default resulting from the incurrence of Indebtedness all or a portion of
the proceeds of which will be used to defease the Securities pursuant to this Article Eight
concurrently with such incurrence), the Credit Agreement or any other material
agreement or instrument to which the Company or any of its Subsidiaries is a
party or by which the Company or any of its Subsidiaries is bound;


 


(vi)          the Issuer
shall have delivered to the Trustee an Officers’ Certificate stating that the
deposit was not made by the Issuer with the intent of preferring the Holders
over any other creditors of the Issuer or with the intent of defeating,
hindering, delaying or defrauding any other creditors of the Issuer or others;


 


(vii)         the Company
shall have delivered to the Trustee an Officers’ Certificate and an Opinion of
Counsel, each stating that all conditions precedent hereunder provided for or
relating to the Legal Defeasance or the Covenant Defeasance have been complied
with; and


 


(viii)        the Company
shall have delivered to the Trustee an Opinion of Counsel to the effect that,
assuming no intervening bankruptcy or insolvency of the Company between the
date of deposit and the 91st day following the deposit and that no Holder is an
insider of the Company, after the 91st day following the deposit, the trust
funds will not be subject to the effect of Section 547 of the United
States Bankruptcy Code or Section 15 of the New York Debtor and Creditor
Law.


 


Notwithstanding the foregoing, the Opinion of
Counsel required by clause (ii) above of this Section 8.3 need not be
delivered if all Securities not theretofore delivered to the Trustee for
cancellation (i) have become due and payable, (ii) will become due
and payable on the Maturity Date within one year or (iii) 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.


 


8.4.          Application of Trust Money.


 


The Trustee or Paying Agent shall hold in trust U.S.
Legal Tender or U.S. Government Obligations deposited with it pursuant to this Article Eight,
and shall apply the deposited U.S. Legal Tender and the money from U.S.
Government Obligations in accordance with this Indenture to the payment of
principal of, premium, if any, and interest on the Securities.


 


The Issuer shall pay and indemnify the Trustee
against any tax, fee or other charge imposed on or assessed against the U.S.
Legal Tender or U.S. Government Obligations deposited pursuant to Section 8.3
hereof or the principal, premium, if any, and interest received in respect
thereof other than any such tax, fee or other charge which by law is for the
account of the Holders of the outstanding Securities.


 


Anything in this Article Eight to the contrary
notwithstanding, the Trustee shall deliver or pay to the Issuer from time to
time upon the Issuer’s request any U.S. Legal Tender or U.S. Government Obligations
held by it as provided in Section 8.3 which, in the opinion of a
nationally recognized firm of independent public accountants expressed in a
written certification thereof 


 


90

















 


delivered to the Trustee,
are in excess of the amount thereof that would then be required to be deposited
to effect an equivalent Legal Defeasance or Covenant Defeasance.


 


8.5.          Repayment to the Issuer.


 


The Trustee and the Paying Agent shall pay to the
Issuer upon request any money held by them for the payment of principal, premium,
if any, or interest that remains unclaimed for two years; provided that
the Trustee or such Paying Agent, before being required to make any payment,
may at the expense of the Issuer cause to be published once in a newspaper of
general circulation in The City of New York or mail to each Holder entitled to
such money notice that such money remains unclaimed and that after a date
specified therein which shall be at least 30 days from the date of such
publication or mailing any unclaimed balance of such money then remaining will
be repaid to the Issuer.  After payment
to the Issuer, Holders entitled to such money must look to the Issuer for
payment as general creditors unless an applicable law designates another
Person.


 


8.6.          Reinstatement.


 


If the Trustee or Paying Agent is unable to apply any
U.S. Legal Tender or U.S. Government Obligations in accordance with this Article Eight
by reason of any legal proceeding or by reason of any order or judgment of any
court or governmental authority enjoining, restraining or otherwise prohibiting
such application, the Issuer’s obligations under this Indenture and the Securities
shall be revived and reinstated as though no deposit had occurred pursuant to
this Article Eight until such time as the Trustee or Paying Agent is
permitted to apply all such U.S. Legal Tender or U.S. Government Obligations in
accordance with this Article Eight; provided
that if the Issuer has made any payment of interest on, premium, if any, or
principal of any Securities because of the reinstatement of its obligations,
the Issuer shall be subrogated to the rights of the Holders of such Securities
to receive such payment from the U.S. Legal Tender or U.S. Government Obligations
held by the Trustee or Paying Agent.


 


ARTICLE NINE


 


AMENDMENTS, SUPPLEMENTS AND
WAIVERS


 


9.1.          Without Consent of Holders.


 


The Issuer, any Guarantor, the Trustee and the Notes
Collateral Agent, together, may amend or supplement this Indenture, the
Securities, any Guarantee, the Intercreditor Agreement or the Security
Documents without notice to or consent of any Securityholder:


 


(i)            to cure any
ambiguity, defect or inconsistency, so long as such change does not, in the
good faith determination of the Board of Directors of the Company, adversely
affect the rights of any of the Holders in any material respect.  In formulating its determination on such
matters, the Board of Directors of the Company will be entitled to rely on such
evidence as it deems appropriate;


 


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(ii)           to evidence the
succession in accordance with Article Five of another Person to the
Company or a Guarantor and the assumption by any such successor of the
covenants of the Company or such Guarantor herein and in the Securities;


 


(iii)          to provide for
uncertificated Securities in addition to or in place of certificated Securities;


 


(iv)          to make any
other change that would provide additional benefit or rights to the
Securityholders or that does not adversely affect the rights of any
Securityholders hereunder in any material respect;


 


(v)           to comply with any
requirements of the Commission in connection with the qualification of this
Indenture under the TIA;


 


(vi)          to add or
release any Guarantor pursuant to the terms of this Indenture;


 


(vii)         to provide for
issuance of the Exchange Notes, which will have terms substantially identical
in all material respects to the Initial Notes (except that the transfer restrictions
contained in the Initial Notes will be modified or eliminated, as appropriate),
and which will be treated together with any outstanding Initial Notes, as a
single issue of securities, provided that for purposes of this clause
(vii), the terms Initial Notes and Exchange Notes, shall include any other
Securities issued in accordance with clause (iii) of the fourth paragraph
of Section 2.2 or Securities issued in exchange therefor which are
identical in all material respects to such Securities (except that the transfer
restrictions on the Securities issued in exchange for Securities issued in
accordance with clause (iii) of the fourth paragraph of Section 2.2
shall be modified or eliminated, as appropriate); or


 


(viii)        to release the
Noteholder Secured Parties’ Lien with respect to Collateral in accordance with
the terms and conditions set forth in this Indenture and under the Security
Documents;


 


; provided
that the Company has delivered to the Trustee an Opinion of Counsel and an
Officers’ Certificate, each stating that such amendment or supplement complies
with the provisions of this Section 9.1. In addition, without the consent
of the Holders of the Securities, the Company, the Guarantors and the Trustee
may amend this Indenture, the Security Documents and the Intercreditor
Agreement to provide for the release of Collateral from the Lien of this
Indenture and the Security Documents when permitted or required by the Security
Documents, the Intercreditor Agreement or this Indenture, to secure any Other
Pari Passu Lien Obligations under the Security Documents and to appropriately
include the same in the Intercreditor Agreement, to modify the Intercreditor
Agreement to allow for Liens on the Notes Collateral which secure Indebtedness
secured by Liens with Junior Lien Priority that are senior to the Liens on the
Notes Collateral which secure the ABL Obligations, so long as such Liens with
Junior Lien Priority are junior to the Liens securing the Securities to the
extent set forth in the definition of “Junior Lien Priority” (or to include
such Indebtedness secured by Liens with Junior Lien Priority in the
Intercreditor Agreement) or to conform this Indenture, the Security Documents
or the Intercreditor Agreement to the “Description of the Notes” contained in
the Offering Circular.  In making its
determination, the Issuer’s Board of Directors may rely on such evidence as it
deems appropriate.


 


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9.2.          With Consent of Holders.


 


Subject to Section 6.7, the Issuer, the
Guarantors, the Trustee and the Notes Collateral Agent, together with the
written consent of the Holder or Holders of at least a majority in aggregate
principal amount of the outstanding Securities, may amend or supplement this
Indenture, the Intercreditor Agreement, the Security Documents, the Securities
or the Guarantees without notice to any other Securityholders.  Subject to Section 6.7, the Holder or
Holders of a majority in aggregate principal amount of the outstanding
Securities may waive compliance by the Issuer or any Guarantor with any
provision of this Indenture, the Security Documents, the Intercreditor
Agreement, the Securities or any Guarantee without notice to any other
Securityholder.  In addition, without the
consent of the Holders of at least 75% in aggregate principal amount of the Securities
then outstanding, (a) no amendment may release from the Lien of this
Indenture or the Securities and the Security Documents all or substantially all
of the Collateral otherwise than in accordance with the terms of such Security
Documents and (b) no waiver or amendment to this Indenture or the Security
Documents may alter the priority of the Lien securing the Collateral in any
manner that adversely affects the rights of any Holder.


 


Without the consent of each Securityholder affected,
however, no amendment, supplement or waiver, including a waiver pursuant to
(and to the extent provided in) Section 6.4, may:


 


(i)            reduce the
amount of Securities whose Holders must consent to an amendment, supplement or
waiver;


 


(ii)           reduce the rate
of or change or have the effect of changing the time for payment of interest,
including default interest, on any Security;


 


(iii)          reduce the
principal of or change or have the effect of changing the fixed maturity of any
Security, or change the date on which any Securities may be subject to
redemption or reduce the Redemption Price therefor;


 


(iv)          make any
Securities payable in money other than that stated in the Securities;


 


(v)           make any change
in provisions of this Indenture protecting the right of each Holder to receive
payment of principal of, premium, if any, and interest on such Security on or
after the due date thereof or to bring suit to enforce such payment, or permitting
Holders of a majority in principal amount of the Securities to waive Defaults
or Events of Default;


 


(vi)          modify or
change any provision of this Indenture or the related definitions affecting the
ranking of the Securities or any Guarantee, in a manner which adversely affects
the Holders;


 


(vii)         amend, change
or modify in any material respect the obligation of the Issuer to make and
consummate a Change of Control Offer in the event of a Change of Control which
has occurred or modify any of the provisions or definitions with respect
thereto after a Change of Control has occurred;


 


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(viii)        make any
changes in Sections 6.4, 6.7 or this Section 9.2; or


 


(ix)           release any
Guarantor that is a Significant Subsidiary from any of its obligations under
its Guarantee or this Indenture other than in accordance with the terms of this
Indenture.


 


It shall not be necessary for the consent of the
Holders under this Section 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 9.2
becomes effective, the Issuer shall mail to the Holders affected thereby a
notice briefly describing the amendment, supplement or waiver.  Any failure of the Issuer to mail such
notice, or any defect therein, shall not, however, in any way impair or affect
the validity of any such supplemental indenture.


 


9.3.          Compliance with TIA.


 


From the date on which this Indenture is qualified
under the TIA, every amendment, waiver or supplement of this Indenture or the
Securities or any Guarantee shall comply with the TIA as then in effect.


 


9.4.          Revocation and Effect of
Consents.


 


Until an amendment, waiver or supplement becomes
effective, a consent to it by a Holder is a continuing consent by the Holder
and every subsequent Holder of a Security or portion of a Security that
evidences the same debt as the consenting Holder’s Security, even if notation
of the consent is not made on any Security. 
However, any such Holder or subsequent Holder may revoke the consent as
to his Security or portion of his Security by notice to the Trustee or the Issuer
received before the date on which the Trustee receives an Officers’ Certificate
certifying that the Holders of the requisite principal amount of Securities
have consented (and not theretofore revoked such consent) to the amendment,
supplement or waiver.


 


The Issuer 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.  If
a record date is fixed, then notwithstanding the last sentence of the
immediately preceding paragraph, those Persons who were Holders at such record
date (or their duly designated proxies), and only those Persons, shall be
entitled to revoke any consent previously given, whether or not such Persons
continue to be Holders after such record date. 
No such consent shall be valid or effective for more than 90 days after
such record date.


 


After an amendment, supplement or waiver becomes
effective, it shall bind every Securityholder, unless it makes a change
described in any of clauses (i) through (vii) of Section 9.2, in
which case, the amendment, supplement or waiver shall bind only each Holder of
a Security who has consented to it and every subsequent Holder of a Security or
portion of a Security that evidences the same debt as the consenting Holder’s
Security; provided that any such waiver
shall not impair or affect the right of any Holder to receive payment of
principal of, premium, if any, and interest on a Security, on or after the
respective due dates expressed in such Security, or to


 


94
















 


bring suit for the
enforcement of any such payment on or after such respective dates without the
consent of such Holder.


 


9.5.          Notation on or Exchange of
Securities.


 


If an amendment, supplement or waiver changes the
terms of a Security, the Issuer may require the Holder of the Security to
deliver it to the Trustee.  The Issuer
shall provide the Trustee with an appropriate notation on the Security about
the changed terms and cause the Trustee to return it to the Holder at the
Issuer’s expense.  Alternatively, if the
Issuer or the Trustee so determines, the Issuer in exchange for the Security
shall issue and the Trustee shall authenticate a new Security that reflects the
changed terms.  Failure to make the
appropriate notation or issue a new Security shall not affect the validity and
effect of such amendment, supplement or waiver.


 


9.6.          Trustee to Sign Amendments,
etc.


 


The Trustee shall execute any amendment, supplement
or waiver authorized pursuant to this Article Nine; provided that the Trustee may, but shall not be obligated to,
execute any such amendment, supplement or waiver which affects the Trustee’s
own rights, duties or immunities under this Indenture.  The Trustee shall be entitled to receive, and
shall be fully protected in relying upon, an Opinion of Counsel and an Officers’
Certificate each complying with Sections 12.4 and 12.5 and stating that the
execution of any amendment, supplement or waiver authorized pursuant to this Article Nine
is authorized or permitted by this Indenture and constitutes the legal, valid
and binding obligations of the Issuer enforceable in accordance with its
terms.  Such Opinion of Counsel shall be
at the expense of the Issuer.


 


ARTICLE TEN


 


COLLATERAL AND SECURITY
DOCUMENTS


 


10.1.        Security Documents;
Additional Collateral.


 


(a)           In
order to secure the due and punctual payment of the Securities and all other
Obligations in respect of the Securities and this Indenture and the Security
Documents, and the other amounts payable to the Trustee hereunder, the Company
and the Guarantors shall, on the Issue Date or thereafter in accordance with
the provisions of this Section 10.1 and Section 10.2 hereof, enter
into the applicable Security Documents to create the Lien on the Collateral in
favor of the Notes Collateral Agent (subject to the terms of the Intercreditor
Agreement) for the benefit of the Noteholder Secured Parties and to provide for
certain related intercreditor matters. 
The Trustee and the Company hereby acknowledge and agree that the Notes
Collateral Agent holds the Collateral in trust for the benefit of the
Noteholder Secured Parties, in each case pursuant to the terms of the Security
Documents and the Intercreditor Agreement.  Each Holder, by accepting a Security
(including any Indebtedness issued after the Issue Date pursuant to clause (iii) of
the fourth paragraph of Section 2.2), consents and agrees to the terms of
the Security Documents (including the provisions providing for the possession,
use, release and foreclosure of Collateral) and the Intercreditor Agreement as
the same may be in effect or may be amended from time to time in accordance
with their terms and this Indenture and the Intercreditor Agreement, and authorizes
and directs the Notes Collateral Agent to enter into the Security Documents and
the 


 


95





















 


Intercreditor Agreement and to perform its
obligations and exercise its rights thereunder in accordance therewith; provided, however,
that if any of the provisions of the Security Documents limit, qualify or
conflict with the duties imposed by the provisions of the TIA, the TIA shall
control.  Any Guarantor shall, upon
becoming a Guarantor, become a party to each applicable Security Document as
shall be necessary or appropriate to grant and create a valid Lien on and
security interest in the personal property of such Guarantor of the type
described in the definition of “Collateral” in the Security Agreement and, to
the extent required by Section 10.1(b), all real property owned by such
Guarantor, in each case, subject to no Liens other than Liens permitted by this
Indenture and the Security Documents.  In
furtherance and in compliance with the provisions of Section 4.19 herein,
after the Issue Date, to further secure the Obligations in respect of the Securities
and this Indenture, the Company and the Guarantors shall enter into the
applicable Security Documents to create a Lien in favor of Notes Collateral
Agent for the benefit of the Noteholder Secured Parties on any and all
Collateral (subject to the terms of the Intercreditor Agreement) on which a
Lien is granted to the Notes Collateral Agent for the benefit of the Noteholder
Secured Parties.


 


(b)           If the Company or any
Guarantor acquires after the Issue Date (i) in fee simple any real
property with book value or cost (whichever is greater) in excess of $2.5
million or (ii) any leasehold interests in any real property with annual
rent in excess of $2.5 million, in either case as determined in good faith
by the Company’s Board of Directors as evidenced by a Board Resolution, the
Company or such Guarantor shall grant to the Notes Collateral Agent for the
benefit of the Noteholder Secured Parties a Mortgage on such real property; provided
that in the case of leaseholds only (but not with respect to owned real property)
the Company and the Guarantors shall only be required to use commercially
reasonable efforts to obtain leasehold mortgages or other security interests
with respect thereto and shall in no event be required to obtain such leasehold
mortgages or other security interests if prohibited by applicable law, regulation
or contract.  All such Mortgages shall be
reasonably satisfactory in form and substance to the Notes Collateral
Agent.  In connection therewith, the
Company shall deliver to the Notes Collateral Agent a Mortgage, title insurance
policy, survey, legal opinion, Uniform Commercial Code (“UCC”) fixture
filings and other documents and instruments meeting the requirements of Schedule
III of the Purchase Agreement (as if such newly acquired real property were set
forth on such Schedule), each in form and substance satisfactory to Notes
Collateral Agent, and pay all costs and expenses in connection therewith.


 


(c)           The Trustee (solely in its
capacity as a trustee on behalf of the Holders pursuant to the Security
Documents) and each Holder, by accepting a Security, agrees to all of the terms
and provisions of each of the Security Documents and the Intercreditor
Agreement, as the same may be amended from time to time pursuant to the
provisions of Security Documents, the Intercreditor Agreement and this
Indenture, and acknowledges that the Security Documents also may be
amended to the extent permitted by law without the consent of the Trustee or
the Holders to add additional Persons as Noteholder Secured Parties under the
Security Documents and/or add new classes of creditors, in each case, to the
extent such Indebtedness and Liens are permitted hereby.


 


(d)           The Company and the
Guarantors shall comply with the requirements of Section 5(i) of the
Purchase Agreement.


 


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10.2.        Recording, Etc.


 


(a)           The Company and the
Guarantors shall take or cause to be taken all action required or desirable to
be taken by the Company or such Guarantor to maintain and perfect the Lien on
the Collateral granted by the Security Documents, to the extent required
thereby, including, but not limited to, causing all financing statements, any
mortgage or deed of trust, the Security Documents (or a short form version
thereof), other instruments of further assurance, including, without
limitation, continuation statements covering security interests in personal
property to be executed and delivered to the Notes Collateral Agent to be
promptly recorded, registered and filed, and at all times to be kept recorded
and will execute and cause to be filed such financing statements and cause to
be issued and filed such continuation statements, all in such manner and in
such places as may be required by law fully to maintain the perfection of the
Holders’ and the Trustee’s rights under this Indenture and the Security
Documents to all property comprising the Collateral.  Without limiting the generality of the foregoing,
the Company will cause each new Guarantor that becomes a Guarantor after the
Issue Date pursuant to Sections 4.15 and 4.20 hereof to execute and
deliver to the Notes Collateral Agent and the Trustee at such time as such Guarantor
becomes a Guarantor and owns, possesses or acquires any property or assets of
the type or nature that would constitute Collateral (i) a counterpart to
the Security Agreement and such other documents as required by the Security
Agreement and the Intercreditor Agreement and (ii) any other Security
Documents as shall be necessary or reasonably requested by the Notes Collateral
Agent in order to grant and perfect the Lien on the Collateral of such
Guarantor.


 


(b)           The Company shall furnish or cause to be furnished
to the Trustee:


 


(1)           at the time of
execution and delivery of this Indenture, Opinions of Counsel delivered on the
Issue Date with respect to Collateral substantially to the effect that, in the
opinion of such counsel, each Security Document and all other instruments of
further assurance or assignment have been properly recorded, or filed to the
extent necessary to perfect or create the security interests created by each
such Security Document, to the extent that perfection of such security
interests is required by the Security Documents, and reciting the details of
such action, and stating that as to the security interests created pursuant to
each such Security Document, such recordings, registrations and filings are the
only recordings, registrations and filings necessary to give notice thereof
(other than as stated in such opinion);


 


(2)           within 30 days
after August 15 of each year beginning with August 15, 2010, an
Opinion of Counsel dated as of such date either (i) to the effect that, in
the opinion of such counsel, such action has been taken with respect to the
recordings, registrations, filings, re-recordings, re-registrations and
refilings of all instruments of further assurance as is necessary to maintain
the validity, enforceability and perfection of the security interests of each
of the Security Documents, to the extent that perfection of such security
interests is required by the Security Documents, and reciting with respect to
such security interests the details of such action (or to the extent that
further action is required to be taken within the next twelve months, details
of such further action) or referencing prior Opinions of Counsel in which such
details are given, or (ii) if perfection of such security interests is
required by the Security Documents, to the effect that, in the opinion of 


 


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such
counsel, no additional action is necessary to maintain perfection of such
security interests.


 


10.3.        Release of
Collateral/Intercreditor and Subordination Agreements.


 


(a)           Subject to the terms of Article Four,
Collateral may be released from the Lien and security interest created by the
Security Documents at any time or from time to time in accordance with the
provisions of the Security Documents, the Intercreditor Agreement or as
provided in this Indenture.  The Company
and the Guarantors will be entitled to a release of property and other assets
included in the Collateral from the Liens securing the Securities and the Guarantees,
and the Trustee (subject to its receipt of an Officer’s Certificate and Opinion
of Counsel as provided below) shall release, or instruct the Notes Collateral
Agent to release, as applicable, the same from such Liens at the Company’s sole
cost and expense, under one or more of the following circumstances:


 


(1)           to enable the
Company or any Guarantor to sell, exchange or otherwise dispose of any of the
Collateral (other than any such sale or other disposition to the Company or
another Guarantor) to the extent not prohibited under Article Four;


 


(2)           in the case of
a Guarantor that is released from its Guarantee with respect to the Securities,
the release of the property and assets of such Guarantor;


 


(3)           pursuant to an
amendment or waiver in accordance with Article Nine;


 


(4)           if the
Securities have been discharged or defeased pursuant to Article Eight; or


 


(5)           with respect to
any ABL Collateral, if the ABL Collateral Agent releases such ABL Collateral
from the Lien securing the ABL Obligations in accordance with the ABL Loan
Documents.


 


(b)           Upon receipt of an Officers’
Certificate and an Opinion of Counsel certifying that all conditions precedent
under this Indenture and the Security Documents (and TIA § 314(d)), if
any, to such release have been met and any necessary or proper instruments of
termination, satisfaction or release prepared by the Company, the Trustee
shall, or shall cause the Notes Collateral Agent to, execute, deliver or
acknowledge (at the Company’s expense) such instruments or releases to evidence
the release of any Collateral permitted to be released pursuant to this Indenture
or the Security Documents or the Intercreditor Agreement.  Neither the Trustee nor the Notes Collateral
Agent shall be liable for any such release undertaken in good faith in reliance
upon any such Officers’ Certificate or Opinion of Counsel, and notwithstanding
any term hereof or in any Security Document to the contrary, the Trustee and
Notes Collateral Agent shall not be under any obligation to release any such
Lien and security interest, or execute and deliver any such instrument of
release, satisfaction or termination, unless and until it receives such Officers’
Certificate and Opinion of Counsel.


 


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10.4.        Taking and Destruction.


 


Upon any Taking or Destruction of any Collateral,
all Net Insurance Proceeds received by the Company or any Guarantor shall be
deemed Net Cash Proceeds and shall be applied in accordance with Section 4.18
as if such Net Insurance Proceeds were Net Cash Proceds received by the Company
or such Guarantor in connection with an Asset Sale.


 


10.5.        Trust Indenture Act
Requirements.


 


The release of any Collateral from the Lien of any
of the Security Documents or the release of, in whole or in part, the Liens
created by any of the Security Documents will not be deemed to impair the
security interests in contravention of the provisions hereof if and to the extent
the Collateral or Liens are released pursuant to the applicable Security
Documents and pursuant to the terms hereof. 
The Trustee and each of the Holders acknowledge that a release of
Collateral or Liens strictly in accordance with the terms of the Security
Documents and the terms hereof will not be deemed for any purpose to be an
impairment of the security interests in contravention of the terms of this Indenture.  To the extent applicable following the
qualification of this Indenture under the TIA, without limitation, the Company
and the Guarantors will comply with TIA § 314(d) relating to the
release of property or securities from the Liens hereof and of the Security
Documents and TIA § 314(b) relating to reports.  At the request of the Trustee, the Company
shall provide a certificate or opinion required by TIA § 314(d), which
certificate or opinion may be made by an Officer of the Company, except in
cases in which TIA § 314(d) requires that such certificate or opinion
be made by an independent Person.


 


10.6.        Suits To Protect the
Collateral.


 


Subject
to the provisions of Article Nine, the Intercreditor Agreement and the
Security Documents, the Trustee in its sole discretion and without the consent
of the Holders, on behalf of the Holders, may or may direct the Notes
Collateral Agent to take all actions it deems necessary or appropriate in order
to:


 


(1)           enforce any of
the terms of the Security Documents; and


 


(2)           collect and
receive any and all amounts payable in respect of the Obligations hereunder.


 


Subject to the provisions of the Security Documents
and the Intercreditor Agreement, the Trustee shall have power to instruct the
Notes Collateral Agent to institute and to maintain such suits and proceedings
as it may deem expedient to prevent any impairment of the Collateral by any
acts which may be unlawful or in violation of any of the Security Documents or
this Indenture (including power to instruct the Notes Collateral Agent to
institute and maintain suits or proceedings to restrain the enforcement of or
compliance with any legislative or other governmental enactment, rule or
order that may be unconstitutional or otherwise invalid if the enforcement of,
or compliance with, such enactment, rule or order would impair the
Security Interests).  Nothing in this Section 10.6 shall
be considered to impose any such duty or obligation to act on the part of the
Trustee.


 


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10.7.        Purchaser Protected.


 


In no event shall any purchaser in good faith of any
property purported to be released hereunder or under any of the Security Documents
be bound to ascertain the authority of the Trustee or the Notes Collateral
Agent, as the case may be, to execute the release or to inquire as to the
satisfaction of any conditions required by the provisions hereof for the
exercise of such authority or to see to the application of any consideration
given by such purchaser or other transferee; nor shall any purchaser or other
transferee of any property or rights permitted by this Article Ten to be
sold be under obligation to ascertain or inquire into the authority of the
Company, to make any such sale or other transfer.


 


10.8.        Powers Exercisable by
Receiver or Trustee.


 


In case the Collateral shall be in the possession of
a receiver or trustee, lawfully appointed, the powers conferred in this Article Ten
upon the Company with respect to the release, sale or other disposition of such
property may be exercised by such receiver or trustee, and an instrument signed
by such receiver or trustee shall be deemed the equivalent of any similar instrument
of the Company or of any officer or officers thereof required by the provisions
of this Article Ten.


 


10.9.        Determinations Relating to
Collateral.


 


In the event (i) the Trustee shall receive any
written request from the Company or any Guarantor under any Security Document
for consent or approval with respect to any matter or thing relating to any
Collateral or the Company’s or any Guarantor’s obligations with respect thereto
(other than actions with respect to the Collateral on the part of the Trustee
that do not, pursuant to the express terms of this Indenture, require the
consent of the Holders); or (ii) there shall be required from the Trustee
under the provisions of any Security Document any performance or the delivery
of any instrument (other than the performance or delivery of any instrument
with respect to the Collateral that does not require the consent of the Holders
pursuant to the express terms of this Indenture); or (iii) a Responsible
Officer of the Trustee shall receive notice or have actual knowledge of any
default by the Company or any Guarantor of any covenant or any breach of any
representation or warranty of the Company or any Guarantor set forth in any Security
Document, and, in the case of clause (i), (ii) or (iii) above,
the Trustee’s response or action is not otherwise specifically addressed hereunder
or under the applicable Security Document then, in each such event, the Trustee
shall, within seven Business Days thereafter, advise the Holders, in writing
and at the Company’s expense, of the matter or thing as to which consent has
been requested or the performance or instrument required to be delivered or the
default of which the Trustee has received notice or has actual knowledge.  Subject to Article Nine and the Security
Documents, the Holders of not less than a majority in aggregate principal
amount at maturity of the outstanding Securities shall have the exclusive
authority to direct the Trustee’s response to any of the circumstances contemplated
in clauses (i), (ii) and (iii) above.  In the event the Trustee shall be required to
respond to any of the circumstances contemplated in this Section 10.9, the
Trustee shall not be required so to respond unless it shall have received written
direction by Holders of not less than a majority in aggregate principal amount
at maturity of the outstanding Securities and indemnity reasonably satisfactory
to it; provided that the Trustee shall be entitled to hire experts,
consultants, agents and attorneys to advise the Trustee on the manner in which 


 


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the Trustee should respond
to such request or render any requested performance or response to such default
(the expenses of which shall be reimbursed to the Trustee pursuant to Section 7.7).  The Trustee shall be fully protected in the
taking of any action recommended or approved by any such expert, consultant,
agent or attorney or agreed to by such Holders.


 


10.10.      Release upon Termination of
the Company’s Obligations.


 


In the event that the Company delivers an Officers’
Certificate certifying that its obligations under this Indenture have been
satisfied and discharged by complying with the provisions of Article Eight
and such other documents and/or funds as are required to be delivered or paid
pursuant to Article Eight, the Trustee shall at the request of the Company
instruct the Notes Collateral Agent to execute and deliver, in each case
without recourse, representation or warranty, such releases, termination
statements and other instruments (in recordable form, where appropriate) as the
Company may reasonably request evidencing the termination of the Liens created
by the Security Documents in favor of the Notes Collateral Agent for the
benefit of the Trustee and the Holders and thereafter neither the Trustee nor
the Notes Collateral Agent shall be deemed to hold the Liens for the benefit of
the Trustee and the Holders.


 


10.11.      Limitation on Duty of
Trustee in Respect of Collateral.


 


(a)           Beyond the exercise of
reasonable care by the Trustee and the Notes Collateral Agent, neither the
Trustee nor the Notes Collateral Agent shall have any duty as to any Collateral
in its possession or control or in the possession or control of any agent or
bailee or any income thereon or as to preservation of rights against prior
parties or any other rights pertaining thereto and neither the Trustee nor the
Notes Collateral Agent shall be responsible for filing any financing or
continuation statements or recording any documents or instruments in any public
office at any time or times or otherwise perfecting or maintaining the
perfection of the security interest in the Collateral.


 


(b)           Neither the Trustee nor the
Notes Collateral Agent shall be responsible for the existence, genuineness or
value of any of the Collateral or for the validity, perfection, priority or
enforceability of the Liens upon any of the Collateral, whether impaired by
operation of law or by reason of any action or omission to act on its part
hereunder, except to the extent such action or omission constitutes negligence
or willful misconduct on the part of the Trustee or the Notes Collateral Agent,
as applicable, for the validity or sufficiency of the Collateral or any
agreement or assignment contained therein, for the validity of the title of the
Company to the Collateral, for insuring the Collateral or for the payment of
taxes, charges, assessments or Liens upon the Collateral or otherwise as to the
maintenance of the Collateral.


 


10.12.      Successor Collateral Agent.


 


If the Notes Collateral Agent resigns or is
otherwise removed or replaced, the Company may appoint a successor collateral
agent (a “Successor Collateral Agent”) on behalf of the Trustee and
Holders of Securities.  The Successor
Collateral Agent shall be a bank, trust company or other financial institution
having capital and retained earnings of at least $1,000,000,000.  Upon acceptance of any appointment as the
Successor Collateral Agent, such Successor Collateral Agent shall thereupon succeed
to and become vested with all of the rights, powers, privileges, 


 


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duties and obligations of
the retiring Notes Collateral Agent hereunder and under the Security Documents
and the retiring Notes Collateral Agent shall be discharged from its duties and
obligations hereunder.  In this
connection, the Trustee shall, if requested by the Successor Collateral Agent
and without the necessity of obtaining the consent of the Holders of
Securities, so acknowledge such fact in writing in form and substance reasonably
satisfactory to the Successor Collateral Agent.


 


10.13.      Notes Collateral Agent.


 


(a)           The Trustee and each of the
Holders by acceptance of the Securities hereby designates and appoints the
Notes Collateral Agent as its agent under this Indenture, the Security
Agreement, the Security Documents and the Intercreditor Agreement and the
Trustee and each of the Holders by acceptance of the Securities hereby
irrevocably authorizes the Notes Collateral Agent to take such action on its
behalf under the provisions of this Indenture, the Security Agreement, the
Security Documents and the Intercreditor Agreement and to exercise such powers
and perform such duties as are expressly delegated to the Notes Collateral
Agent by the terms of this Indenture, the Security Agreement, the Security
Documents and the Intercreditor Agreement, together with such powers as are
reasonably incidental thereto.  The Notes
Collateral Agent agrees to act as such on the express conditions contained in
this Section 10.13.  The provisions
of this Section 10.13 are solely for the benefit of the Notes Collateral
Agent and none of the Trustee, any of the Holders nor the Company or any of the
Guarantors shall have any rights as a third party beneficiary of any of the
provisions contained herein other than as expressly provided in Section 10.13.  Notwithstanding any provision to the contrary
contained elsewhere in this Indenture, the Security Agreement, the Security
Documents and the Intercreditor Agreement, the Notes Collateral Agent shall not
have any duties or responsibilities, except those expressly set forth herein,
nor shall the Notes Collateral Agent have or be deemed to have any fiduciary
relationship with the Trustee, any Holder or the Company or any Guarantor, and
no implied covenants, functions, responsibilities, duties, obligations or
liabilities shall be read into this Indenture, the Security Agreement, the
Security Documents and the Intercreditor Agreement or otherwise exist against
the Notes Collateral Agent.  Without
limiting the generality of the foregoing sentence, the use of the term “agent”
in this Indenture with reference to the Notes Collateral Agent is not intended
to connote any fiduciary or other implied (or express) obligations arising
under agency doctrine of any applicable law. 
Instead, such term is used merely as a matter of market custom, and is
intended to create or reflect only an administrative relationship between
independent contracting parties.  Except as
expressly otherwise provided in this Indenture, the Notes Collateral Agent
shall have and may use its sole discretion with respect to exercising or
refraining from exercising any discretionary rights or taking or refraining
from taking any actions which the Notes Collateral Agent is expressly entitled
to take or assert under this Indenture, the Security Agreement, the Security
Documents and the Intercreditor Agreement, including the exercise of remedies
pursuant to Article Six, and any action so taken or not taken shall be
deemed consented to by the Trustee and the Holders.


 


(b)           The Notes Collateral Agent
may execute any of its duties under this Indenture, the Security Documents or
the Intercreditor Agreement by or through agents, employees or attorneys-in-fact
and shall be entitled to advice of counsel concerning all matters pertaining to
such duties.  The Notes Collateral Agent
shall not be responsible for the negligence or misconduct of 


 


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any agent, employee or attorney-in-fact that
it selects as long as such selection was made without negligence or willful
misconduct.


 


(c)           None of the Notes Collateral
Agent or any of its agents or employees shall (i) be liable for any action
taken or omitted to be taken by any of them under or in connection with this
Indenture or the transactions contemplated hereby (except for its own
negligence or willful misconduct) or under or in connection with the Security
Agreement, any Security Document or the Intercreditor Agreement or the
transactions contemplated thereby (except for its own negligence or willful
misconduct), or (ii) be responsible in any manner to the Trustee or any
Holder for any recital, statement, representation, warranty, covenant or
agreement made by the Company or any Guarantor contained in this Indenture or
any other indenture, or in any certificate, report, statement or other document
referred to or provided for in, or received by the Notes Collateral Agent under
or in connection with, this Indenture or any other indenture, the Security
Agreement, the Security Documents or the Intercreditor Agreement, or the
validity, effectiveness, genuineness, enforceability or sufficiency of this
Indenture or any other indenture, the Security Agreement, the Security Documents
or the Intercreditor Agreement, or for any failure of the Company or any
Guarantor or any other party to this Indenture, the Security Agreement, the
Security Documents or the Intercreditor Agreement to perform its obligations
hereunder or thereunder.  None of the
Notes Collateral Agent or any of its agents or employees shall be under any
obligation to the Trustee or any Holder to ascertain or to inquire as to the
observance or performance of any of the agreements contained in, or conditions
of, this Indenture or any other indenture, the Security Agreement, the Security
Documents or the Intercreditor Agreement or to inspect the properties, books or
records of the Company or any Guarantor.


 


(d)           The Notes Collateral Agent
shall be entitled to rely, and shall be fully protected in relying, upon any
writing, resolution, notice, consent, certificate, affidavit, letter, telegram,
facsimile, telex or telephone message, statement or other document or
conversation believed by it to be genuine and correct and to have been signed,
sent or made by the proper Person or Persons, and upon advice and statements of
legal counsel (including, without limitation, counsel to the Company or any
Guarantor), independent accountants and other experts and advisors selected by the
Notes Collateral Agent.  The Notes
Collateral Agent shall be fully justified in failing or refusing to take any
action under this or any other Indenture, the Security Documents or the Intercreditor
Agreement unless it shall first receive such advice or concurrence of the
Trustee as it deems appropriate and, if it so requests, it shall first be
indemnified to its satisfaction by the Holders against any and all liability
and expense which may be incurred by it by reason of taking or continuing to
take any such action.  The Notes
Collateral Agent shall in all cases be fully protected in acting, or in
refraining from acting, under this Indenture or any other indenture, the Security
Documents or the Intercreditor Agreement in accordance with a request or consent
of the Trustee and such request and any action taken or failure to act pursuant
thereto shall be binding upon all of the Holders.


 


(e)           The Notes Collateral Agent
shall not be deemed to have knowledge or notice of the occurrence of any
Default or Event of Default, unless the Notes Collateral Agent shall have
received written notice from the Trustee or the Company referring to this
Indenture, describing such Default or Event of Default and stating that such notice
is a “notice of default.”  The Notes Collateral
Agent shall take such action with respect to such Default or Event of Default
as may be 


 


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requested by the Trustee in accordance with Article Six
(subject to Section 7.1); provided, however, that unless
and until the Notes Collateral Agent has received any such request, the Notes
Collateral Agent may (but shall not be obligated to) take such action, or refrain
from taking such action, with respect to such Default or Event of Default as it
shall deem advisable.


 


(f)            U.S. Bank National
Association and its Affiliates (and any successor Notes Collateral Agent and
its Affiliates) may make loans to, issue letters of credit for the account of,
accept deposits from, acquire equity interests in and generally engage in any
kind of banking, trust, financial advisory, underwriting, or other business
with the Company and the Guarantors as though it was not the Notes Collateral
Agent hereunder and without notice to or consent of the Trustee.  The Trustee and the Holders acknowledge that,
pursuant to such activities, U.S. Bank National Association or its Affiliates
(and any successor Notes Collateral Agent and its Affiliates) may receive
information regarding the Company and the Guarantors (including information that
may be subject to confidentiality obligations in favor of the Company and the
Guarantors) and acknowledge that the Notes Collateral Agent shall not be under
any obligation to provide such information to the Trustee or the Holders.  Nothing herein shall impose or imply any obligation
on the part of U.S. Bank National Association (or any successor Notes
Collateral Agent) to advance funds.


 


(g)           The Notes Collateral Agent
may resign at any time upon thirty (30) days prior written notice to the
Trustee and the Company, such resignation to be effective upon the acceptance
of a successor agent to its appointment as Notes Collateral Agent.  If the Notes Collateral Agent resigns under
this Indenture, the Trustee, subject to the consent of the Company (which shall
not be unreasonably withheld and which shall not be required during a
continuing Event of Default), shall appoint a successor Notes Collateral
Agent.  If no successor notes collateral
agent is appointed prior to the intended effective date of the resignation of
the Notes Collateral Agent (as stated in the notice of resignation), the Notes
Collateral Agent may appoint, after consulting with the Trustee, subject to the
consent of the Company (which shall not be unreasonably withheld and which
shall not be required during a continuing Event of Default), a successor notes
collateral agent.  If no successor notes
collateral agent is appointed and consented to by the Company pursuant to the
preceding sentence within thirty (30) days after the intended effective date of
resignation (as stated in the notice of resignation) the Notes Collateral Agent
shall be entitled to petition at the expense of the Company a court of
competent jurisdiction to appoint a successor. 
Upon the acceptance of its appointment as successor notes collateral
agent hereunder, such successor notes collateral agent shall succeed to all the
rights, powers and duties of the retiring Notes Collateral Agent, and the term “Notes
Collateral Agent” shall mean such successor notes collateral agent, and the
retiring Notes Collateral Agent’s appointment, powers and duties as the Notes
Collateral Agent shall be terminated. 
After the retiring Notes Collateral Agent’s resignation hereunder, the
provisions of this Section 10.13 (and Section 10.15) shall continue
to inure to its benefit and the retiring Notes Collateral Agent shall not by
reason of such resignation be deemed to be released from liability as to any
actions taken or omitted to be taken by it while it was the Notes Collateral
Agent under this Indenture.


 


(h)           The Trustee shall initially
act as Notes Collateral Agent and shall be authorized to appoint co-Notes
Collateral Agents as necessary in its sole discretion.  Except as otherwise explicitly provided
herein or in the Security Documents or the Intercreditor Agreement, neither the


 


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Notes Collateral Agent nor any of its
officers, directors, employees or agents shall be liable for failure to demand,
collect or realize upon any of the Collateral or for any delay in doing so or
shall be under any obligation to sell or otherwise dispose of any Collateral
upon the request of any other Person or to take any other action whatsoever
with regard to the Collateral or any part thereof.  The Notes Collateral Agent shall be
accountable only for amounts that it actually receives as a result of the exercise
of such powers, and neither the Notes Collateral Agent nor any of its officers,
directors, employees or agents shall be responsible for any act or failure to
act hereunder, except for its own willful misconduct, gross negligence or bad
faith.


 


(i)                                     The Trustee, as
such and as Notes Collateral Agent, is authorized and directed to (i) enter
into the Security Agreement, and the Security Documents, (ii) enter into
the Intercreditor Agreement, (iii) bind the Holders on the terms as set
forth in the Security Agreement, and the Security Documents and the
Intercreditor Agreement and (iv) perform and observe its obligations under
the Security Agreement, and the Security Documents and the Intercreditor Agreement.


 


(j)                                     The Trustee
agrees that it shall not (and shall not be obliged to), and shall not instruct
the Notes Collateral Agent to, unless specifically requested to do so by a majority
of the Holders, take or cause to be taken any action to enforce its rights
under this Indenture or against the Company and the Guarantors, including the
commencement of any legal or equitable proceedings, to foreclose any Lien on,
or otherwise enforce any security interest in, any of the Collateral.


 


(k)                                  The Notes
Collateral Agent shall have no obligation whatsoever to the Trustee or any of
the Holders to assure that the Collateral exists or is owned by the Company and
the Guarantors or is cared for, protected or insured or has been encumbered, or
that the Notes Collateral Agent’s Liens have been properly or sufficiently or
lawfully created, perfected, protected, maintained or enforced or are entitled
to any particular priority, or to determine whether all of the Grantor’s
property constituting Collateral intended to be subject to the Lien and
security interest of the Security Documents has been properly and completely
listed or delivered, as the case may be, or the genuineness, validity,
marketability or sufficiency thereof or title thereto, or to exercise at all or
in any particular manner or under any duty of care, disclosure or fidelity, or
to continue exercising, any of the rights, authorities and powers granted or
available to the Notes Collateral Agent pursuant to this Indenture, any
Security Document or the Intercreditor Agreement, it being understood and
agreed that in respect of the Collateral, or any act, omission or event related
thereto, the Notes Collateral Agent may act in any manner it may deem
appropriate, in its sole discretion given the Notes Collateral Agent’s own
interest in the Collateral, and that the Notes Collateral Agent shall have no
other duty or liability whatsoever to the Trustee or any Holder as to any of
the foregoing.


 


(l)                                     If the Company (i) incurs
any ABL Obligations at any time when no intercreditor agreement is in effect or
at any time when Indebtedness constituting ABL Obligations entitled to the
benefit of an existing intercreditor agreement is concurrently retired, and (ii) delivers
to the Notes Collateral Agent an Officers’ Certificate so stating and
requesting the Notes Collateral Agent to enter into an intercreditor agreement
(on substantially the same terms as the Intercreditor Agreement) in favor of a
designated agent or representative for the holders of the ABL Obligations so
incurred so long as such ABL Obligations (and any security interests granted in



 


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connection therewith) are permitted to be
incurred and granted under this Indenture, the Notes Collateral Agent shall
(and is hereby authorized and directed to) enter into such intercreditor agreement
(at the sole expense and cost of the Company, including legal fees and expenses
of the Notes Collateral Agent), bind the Holders on the terms set forth therein
and perform and observe its obligations thereunder.


 


(m)                               No provision of
this Indenture, the Security Agreement, the Intercreditor Agreement or any
Security Document shall require the Notes Collateral Agent (or the Trustee) to
expend or risk its own funds or otherwise incur any financial liability in the
performance of any of its duties hereunder or thereunder or to take or omit to
take any action hereunder or thereunder or take any action at the request or
direction of Holders (or the Trustee in the case of the Notes Collateral Agent)
if it shall have reasonable grounds for believing that repayment of such funds
is not assured to it.


 


(n)                                 The Notes
Collateral Agent (i) shall not be liable for any action it takes or omits
to take in good faith which it reasonably believes to be authorized or within
its rights or powers, or for any error of judgment made in good faith by a
Responsible Officer, unless it is proved that the Notes Collateral Agent was
grossly negligent in ascertaining the pertinent facts, (ii) shall not be
liable for interest on any money received by it except as the Notes Collateral
Agent may agree in writing with the Company (and money held in trust by the
Notes Collateral Agent need not be segregated from other funds except to the
extent required by law), and (iii) may consult with counsel of its
selection and the advice or opinion of such counsel as to matters of law shall
be full and complete authorization and protection from liability in respect of
any action taken, omitted or suffered by it in good faith and in accordance
with the advice or opinion of such counsel.  The grant of permissive rights or powers to
the Notes Collateral Agent shall not be construed to impose duties to act.


 


10.14.                  Compensation and
Indemnification.


 


The
Notes Collateral Agent shall be entitled to the security, compensation and
indemnification set forth in Section 7.7 (with the references to the
Trustee therein being deemed to refer to the Notes Collateral Agent).


 


10.15.                  Intercreditor Agreement,
Security Agreement, and Other Security Documents.


 


The
Trustee and Notes Collateral Agent is each hereby directed and authorized to execute
and deliver the Intercreditor Agreement, the Security Agreement, and any other
Security Documents in which it is named as a party.  It is hereby expressly acknowledged and
agreed that, in doing so, the Trustee and the Notes Collateral Agent are not
responsible for the terms or contents of such agreements or documents, or for
the validity or enforceability thereof, or the sufficiency thereof for any
purpose.  Whether or not so expressly
stated therein, in entering into, or taking (or forbearing from) any action
under or pursuant to, the Intercreditor Agreement, the Security Agreement, or
any other Security Documents, the Trustee and Notes Collateral Agent each shall
have all of the rights, immunities, indemnities and other protections granted
to it under this Indenture (in addition to those that may be granted to it
under the terms of such other agreements or documents).


 


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ARTICLE ELEVEN



RANKING OF LIENS


 


11.1.                        Relative Rights.


 


The Intercreditor Agreement defines the relative
rights, as lienholders, of the ABL Secured Parties and the Noteholder Secured
Parties.  Nothing in this Indenture or
the Intercreditor Agreement will:


 


(1)                                  impair, as
between the Company and Holders, the obligation of the Company, which is
absolute and unconditional, to pay principal of, premium and interest on the
Securities in accordance with their terms or to perform any other obligation of
the Company or any Guarantor under this Indenture, the Securities, the
Guarantees and any Security Documents;


 


(2)                                  restrict the
right of any Holder to sue for payments that are then due and owing, in a
manner not inconsistent with the provisions of the Intercreditor Agreement;


 


(3)                                  prevent the
Trustee or any Holder from exercising against the Company or any Guarantor any
of its other available remedies upon a Default or Event of Default (other than
its rights as a secured party, which are subject to the Intercreditor Agreement);
or


 


(4)                                  restrict the
right of the Trustee or any Holder:


 


(a)                                  to file and
prosecute a petition seeking an order for relief in an involuntary bankruptcy
case as to the Company or any Guarantor or otherwise to commence, or seek
relief commencing, any Insolvency or Liquidation Proceeding involuntarily
against the Company or any Guarantor;


 


(b)                                 to make,
support or oppose any request for an order for dismissal, abstention or
conversion in any Insolvency or Liquidation Proceeding;


 


(c)                                  to make,
support or oppose, in any Insolvency or Liquidation Proceeding, any request for
an order extending or terminating any period during which the debtor (or any
other Person) has the exclusive right to propose a plan of reorganization or
other dispositive restructuring or liquidation plan therein;


 


(d)                                 to seek the
creation of, or appointment to, any official committee representing creditors
(or certain of the creditors) in any Insolvency or Liquidation Proceeding and,
if appointed, to serve and act as a member of such committee without being in
any respect restricted or bound by, or liable for, any of the obligations under
this Article Eleven;


 


(e)                                  to seek or
object to the appointment of any professional person to serve in any capacity
in any Insolvency or Liquidation Proceeding or to support or 


 


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object to any request for compensation made by any
professional person or others therein;


 


(f)                                    to make,
support or oppose any request for order appointing a trustee or examiner in any
Insolvency or Liquidation Proceeding; or


 


(g)                                 otherwise to
make, support or oppose any request for relief in any Insolvency or Liquidation
Proceeding that it is permitted by law to make, support or oppose:


 


(x)                                   as if it were a holder of
unsecured claims; or


 


(y)                                 as to any matter relating to
any plan of reorganization or other restructuring or liquidation plan or as to
any matter relating to the administration of the estate or the disposition of
the case or proceeding (in each case set forth in this clause (g) except
as set forth in the Intercreditor Agreement).


 


ARTICLE TWELVE


 


GUARANTEE OF SECURITIES


 


12.1.                        Unconditional
Guarantee.


 


Subject to the provisions of this Article Twelve,
each of the Guarantors, upon the execution and delivery of this Indenture or a
Guarantee pursuant to Section 4.15 or 4.20, shall hereby, jointly and severally,
unconditionally and irrevocably guarantee, on a senior secured basis (such
guarantees to be referred to herein as the “Guarantees”) to each Holder
of a Security authenticated and delivered by the Trustee and to the Trustee and
its successors and assigns, irrespective of the validity and enforceability of
this Indenture, the Securities or the obligations of the Issuer or any other
Guarantors to the Holders or the Trustee hereunder or thereunder, that:  (a) the principal of, premium, if any,
and interest on the Securities shall be duly and punctually paid in full when
due, whether at maturity, upon redemption at the option of Holders pursuant to
the provisions of the Securities relating thereto, by acceleration or
otherwise, and interest on the overdue principal and (to the extent permitted
by law) interest, if any, on the Securities and all other obligations of the
Issuer or the Guarantors to the Holders or the Trustee hereunder or thereunder
(including amounts due the Trustee under Section 7.7 hereof) and all other
obligations shall be promptly paid in full or performed, all in accordance with
the terms hereof and thereof; and (b) in case of any extension of time of
payment or renewal of any Securities or any of such other obligations, the same
shall be promptly paid in full when due or performed in accordance with the
terms of the extension or renewal, whether at maturity, by acceleration or otherwise.  Failing payment when due of any amount so
guaranteed, or failing performance of any other obligation of the Issuer to the
Holders under this Indenture or under the Securities, for whatever reason, each
Guarantor shall be obligated to pay, or to perform or cause the performance of,
the same immediately.  An Event of Default
under this Indenture or the Securities shall constitute an event of default
under the Guarantees, and shall entitle the Holders of Securities to accelerate
the


 


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obligations of the Guarantors
hereunder in the same manner and to the same extent as the obligations of the
Issuer.


 


Each of the Guarantors, upon the execution and
delivery of this Indenture or a Guarantee pursuant to Section 4.15 or
4.20, shall hereby agree that its obligations hereunder shall be unconditional,
irrespective of the validity, regularity or enforceability of the Securities or
this Indenture, the absence of any action to enforce the same, any waiver or
consent by any Holder of the Securities with respect to any provisions hereof
or thereof, any release of any other Guarantor, the recovery of any judgment
against the Issuer, any action to enforce the same, whether or not a Guarantee
is affixed to any particular Security, or any other circumstance which might
otherwise constitute a legal or equitable discharge or defense of a
Guarantor.  Each of the Guarantors, upon
the execution and delivery of this Indenture or a Guarantee pursuant to Section 4.15
or 4.20, shall hereby waive the benefit of diligence, presentment, demand of
payment, filing of claims with a court in the event of insolvency or bankruptcy
of Issuer, any right to require a proceeding first against the Issuer, protest,
notice and all demands whatsoever and covenants that its Guarantee shall not be
discharged except by complete performance of the obligations contained in the
Securities, this Indenture and the Guarantees. 
Each Guarantee is a guarantee of payment and not of collection.  If any Holder or the Trustee is required by
any court or otherwise to return to the Issuer or to any Guarantor, or any
custodian, trustee, liquidator or other similar official acting in relation to
such Issuer or such Guarantor, any amount paid by such Issuer or such Guarantor
to the Trustee or such Holder, each Guarantee, to the extent theretofore
discharged, shall be reinstated in full force and effect.  Each Guarantor, upon the execution and
delivery of this Indenture or a Guarantee pursuant to Section 4.15 or
4.20, shall hereby further agree that, as between it, on the one hand, and the
Holders of Securities and the Trustee, on the other hand, (a) subject to
this Article Twelve, the maturity of the obligations guaranteed hereby may
be accelerated as provided in Article Six hereof for the purposes of the
Guarantees, notwithstanding any stay, injunction or other prohibition
preventing such acceleration in respect of the obligations guaranteed hereby,
and (b) in the event of any acceleration of such obligations as provided
in Article Six hereof, such obligations (whether or not due and payable)
shall forthwith become due and payable by the Guarantors for the purpose of the
Guarantees.


 


No Affiliate, stockholder, officer, director,
limited liability company member or employee, past, present or future, of any
Guarantor, as such, shall have any personal liability under such Guarantor’s
Guarantee by reason of his, her or its status as such Affiliate, stockholder,
officer, director, limited liability company member or employee.


 


12.2.                        Limitations on
Guarantees.


 


The obligations of any Guarantor under its Guarantee
shall be limited to the maximum amount which, after giving effect to all other
contingent and fixed liabilities of such Guarantor and after giving effect to
any collections from or payments made by or on behalf of any other Guarantor in
respect of the obligations of such other Guarantor under its Guarantee or
pursuant to its contribution obligations under this Indenture, will result in
the obligations of such Guarantor under the Guarantee not constituting a
fraudulent conveyance or fraudulent transfer under federal or state law.  Each Guarantor that makes a payment or
distribution under a Guarantee 


 


109

















 


shall be entitled to a
contribution from each other Guarantor in an amount pro rata,
based on the net assets of each Guarantor, determined in accordance with GAAP.


 


12.3.                        Execution and
Delivery of Guarantee.


 


To further evidence the Guarantees set forth in Section 12.1,
each Guarantor, upon the execution and delivery of this Indenture or a
Guarantee pursuant to Section 4.15 or 4.20, hereby agrees that a notation
of its Guarantee, substantially in the form of Exhibit E hereto,
shall be endorsed on each Security authenticated and delivered by the
Trustee.  The Guarantee of any Guarantor
shall be executed on behalf of such Guarantor by either manual or facsimile
signature of two Officers of such Guarantor, each of whom, in each case, shall
have been duly authorized to so execute by all requisite corporate action.  The validity and enforceability of any
Guarantee shall not be affected by the fact that it is not affixed to any
particular Security.


 


Each of the Guarantors, upon the execution and
delivery of this Indenture or a Guarantee pursuant to Section 4.15 or
4.20, hereby agrees that its Guarantee set forth in Section 12.1 shall remain
in full force and effect notwithstanding any failure to endorse on each
Security a notation of such Guarantee.


 


If an Officer of a Guarantor whose signature is on
this Indenture or a Guarantee no longer holds that office at the time the
Trustee authenticates the Security on which such Guarantee is endorsed or at
any time thereafter, such Guarantor’s Guarantee of such Security shall nevertheless
be valid.


 


The delivery of any Security by the Trustee, after
the authentication thereof hereunder, shall constitute due delivery of any
Guarantee set forth in this Indenture on behalf of each Guarantor.


 


12.4.                        Release of a
Guarantor.


 


(a)                                  If no Default
or Event of Default exists or would exist under this Indenture, upon the sale
or disposition of all of the Capital Stock of a Guarantor by the Company or any
Restricted Subsidiary of the Company, in a transaction or series of related
transactions that either (i) does not constitute an Asset Sale or (ii) constitutes
an Asset Sale and such Asset Sale is not in violation of Section 4.18, or
upon the consolidation or merger of a Guarantor with or into any Person in
compliance with Article Five (in each case, other than to the Company or
an Affiliate of the Company), or if any Guarantor is dissolved or liquidated in
accordance with this Indenture, such Guarantor’s Guarantee will be
automatically discharged and such Guarantor shall be released from all
obligations under this Article Twelve without any further action required
on the part of the Trustee or any Holder. 
Any Guarantor not so released or the entity surviving such Guarantor, as
applicable, shall remain or be liable under its Guarantee as provided in this Article Twelve.


 


(b)                                 In addition,
each such Guarantee will be automatically discharged and the Guarantor party
thereto shall be released from all obligations under this Article Twelve
without any further action on the part of the Trustee or any Holder upon (i) the
release or discharge of the guarantee which resulted in the creation of such
Guarantee under such Section 4.15, except a 


 


110

















 


discharge or release by or as a result of
payment under such Guarantee or (ii) the designation of such Guarantor as
an Unrestricted Subsidiary in accordance with the provisions of this
Indenture.  Any Guarantor not so released
or the entity surviving such Guarantor, as applicable, shall remain or be
liable under its Guarantee as provided in this Article Twelve.


 


(c)                                  The Trustee
shall deliver an appropriate instrument evidencing the release of a Guarantor
upon receipt of a request by the Issuer or such Guarantor accompanied by an
Officers’ Certificate and an Opinion of Counsel certifying as to the compliance
with this Section 12.4; provided, however, that the legal
counsel delivering such Opinion of Counsel may rely as to matters of fact on
one or more Officers’ Certificates of the Company.


 


The Trustee shall execute any documents reasonably
requested by the Issuer or a Guarantor in order to evidence the release of such
Guarantor from its obligations under its Guarantee endorsed on the Securities
and under this Article Twelve.


 


Except as set forth in Articles Four and Five and
this Section 12.4, nothing contained in this Indenture or in any of the Securities
shall prevent any consolidation or merger of a Guarantor with or into the
Issuer or another Guarantor or shall prevent any sale or conveyance of the
property of a Guarantor as an entirety or substantially as an entirety to the
Issuer or another Guarantor.


 


12.5.                        Waiver of
Subrogation.


 


Until this Indenture is discharged and all of the
Securities are discharged and paid in full, each Guarantor, upon the execution
and delivery of this Indenture or a Guarantee pursuant to Section 4.15 or
4.20, shall hereby irrevocably waive and agrees not to exercise any claim or
other rights which it may now or hereafter acquire against the Issuer that
arise from the existence, payment, performance or enforcement of the Issuer’s
obligations under the Securities or this Indenture and such Guarantor’s
obligations under its Guarantee and this Indenture, in any such instance,
including, without limitation, any right of subrogation, reimbursement, exoneration,
contribution, indemnification, and any right to participate in any claim or
remedy of the Holders against the Issuer, whether or not such claim, remedy or
right arises in equity, or under contract, statute or common law, including,
without limitation, the right to take or receive from the Issuer, directly or
indirectly, in cash or other property or by setoff or in any other manner,
payment or security on account of such claim or other rights.  If any amount shall be paid to any Guarantor
in violation of the preceding sentence and any amounts owing to the Trustee or
the Holders of Securities under the Securities, this Indenture, or any other
document or instrument delivered under or in connection with such agreements or
instruments, shall not have been paid in full, such amount shall have been
deemed to have been paid to such Guarantor for the benefit of, and held in
trust for the benefit of, the Trustee or the Holders and shall forthwith be
paid to the Trustee for the benefit of itself or such Holders to be credited
and applied to the obligations in favor of the Trustee or the Holders, as the
case may be, whether matured or unmatured, in accordance with the terms of this
Indenture.  Each Guarantor acknowledges
that it will receive direct and indirect benefits from the financing
arrangements contemplated by this Indenture and that the waiver set forth in
this Section 12.5 is knowingly made in contemplation of such benefits.


 


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12.6.                        Immediate
Payment.


 


Each Guarantor, upon the execution and delivery of
this Indenture or a Guarantee pursuant to Section 4.15 or 4.20, shall
hereby agree to make immediate payment to the Trustee, on behalf of the Holders
or itself, of all Obligations due and owing or payable to the respective Holders
or the Trustee upon receipt of a demand for payment therefor by the Trustee to
such Guarantor in writing.


 


12.7.                        No Setoff.


 


Each payment to be made by a Guarantor hereunder in
respect of the Obligations shall be payable in the currency or currencies in
which such Obligations are denominated, and shall be made without setoff,
counterclaim, reduction or diminution of any kind or nature.


 


12.8.                        Obligations
Absolute.


 


The obligations of each Guarantor hereunder are and
shall be absolute and unconditional and any monies or amounts expressed to be
owing or payable by each Guarantor hereunder which may not be recoverable from
such Guarantor on the basis of a Guarantee shall be recoverable from such
Guarantor as a primary obligor and principal debtor in respect thereof.


 


12.9.                        Obligations
Continuing.


 


The obligations of each Guarantor hereunder shall be
continuing and shall remain in full force and effect until all the obligations
have been paid and satisfied in full. 
Upon the execution and delivery of this Indenture or a Guarantee pursuant
to Section 4.15 or 4.20, each Guarantor shall hereby agree with the
Trustee that it will from time to time deliver to the Trustee suitable
acknowledgments of its continued liability hereunder and under any other
instrument or instruments in such form as counsel to the Trustee may advise and
as will prevent any action brought against it in respect of any default
hereunder being barred by any statute of limitations now or hereafter in force
and, in the event of the failure of a Guarantor so to do, it hereby irrevocably
appoints the Trustee the attorney and agent of such Guarantor to make, execute
and deliver such written acknowledgment or acknowledgments or other instruments
as may from time to time become necessary or advisable, in the judgment of the
Trustee on the advice of counsel, to fully maintain and keep in force the
liability of such Guarantor hereunder and under its Guarantee.


 


12.10.                  Obligations Not Reduced.


 


The obligations of each Guarantor hereunder shall
not be satisfied, reduced or discharged solely by the payment of such
principal, premium, if any, interest, fees and other monies or amounts as may
at any time prior to discharge of this Indenture pursuant to Article Eight
be or become owing or payable under or by virtue of or otherwise in connection
with the Securities or this Indenture.


 


112

















 


12.11.                  Obligations Reinstated.


 


The obligations of each 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 the obligations of any
Guarantor hereunder (whether such payment shall have been made by or on behalf
of the Issuer or by or on behalf of a Guarantor) is rescinded or reclaimed from
any of the Holders upon the insolvency, bankruptcy, liquidation or
reorganization of the Issuer or any Guarantor or otherwise, all as though such
payment had not been made.  If demand
for, or acceleration of the time for, payment by the Issuer is stayed upon the
insolvency, bankruptcy, liquidation or reorganization of such Issuer, all such
Indebtedness otherwise subject to demand for payment or acceleration shall
nonetheless be payable by each Guarantor as provided herein.


 


12.12.                  Obligations Not Affected.


 


The obligations of each Guarantor hereunder shall
not be affected, impaired or diminished in any way by any act, omission, matter
or thing whatsoever, occurring before, upon or after any demand for payment
hereunder (and whether or not known or consented to by any Guarantor or any of
the Holders) which, but for this provision, might constitute a whole or partial
defense to a claim against any Guarantor hereunder or might operate to release
or otherwise exonerate any Guarantor from any of its obligations hereunder or
otherwise affect such obligations, whether occasioned by default of any of the
Holders or otherwise, including, without limitation:


 


(i)                  any limitation
of status or power, disability, incapacity or other circumstance relating to
the Issuer or any other Person, including any insolvency, bankruptcy,
liquidation, reorganization, readjustment, composition, dissolution, winding-up
or other proceeding involving or affecting such Issuer or any other Person;


 


(ii)               any
irregularity, defect, unenforceability or invalidity in respect of any indebtedness
or other obligation of the Issuer or any other Person under this Indenture, the
Securities or any other document or instrument;


 


(iii)            any failure of
the Issuer, whether or not without fault on its part, to perform or comply with
any of the provisions of this Indenture or the Securities, or to give notice
thereof to a Guarantor;


 


(iv)           the taking or
enforcing or exercising or the refusal or neglect to take or enforce or
exercise any right or remedy from or against the Issuer or any other Person or their
respective assets or the release or discharge of any such right or remedy;


 


(v)              the granting of
time, renewals, extensions, compromises, concessions, waivers, releases,
discharges and other indulgences to the Issuer or any other Person;


 


(vi)           any change in
the time, manner or place of payment of, or in any other term of, any of the
Securities, or any other amendment, variation, supplement, replacement or
waiver of, or any consent to departure from, any of the Securities or this Indenture,
including, without limitation, any increase or decrease in the principal amount
of or premium, if any, or interest on any of the Securities;


 


113

















 


(vii)        any change in
the ownership, control, name, objects, businesses, assets, capital structure or
constitution of the Issuer or a Guarantor;


 


(viii)     any merger or
amalgamation of the Issuer or a Guarantor with any Person or Persons;


 


(ix)             the occurrence
of any change in the laws, rules, regulations or ordinances of any jurisdiction
by any present or future action of any governmental authority or court
amending, varying, reducing or otherwise affecting, or purporting to amend,
vary, reduce or otherwise affect, any of the Obligations or the obligations of
a Guarantor under its Guarantee; and


 


(x)                any other
circumstance, including release of a Guarantor pursuant to Section 12.4
(other than by complete, irrevocable payment) that might otherwise constitute a
legal or equitable discharge or defense of the Issuer under this Indenture or
the Securities or of another Guarantor in respect of its Guarantee hereunder;


 


provided that the
provisions of this Section 12.12 are not intended to affect in any way any
release of a Guarantor in accordance with the provisions of Section 12.4.


 


12.13.                  Waiver.


 


Without in any way limiting the provisions of Section 12.1
hereof, each Guarantor, upon the execution and delivery of a Guarantee pursuant
to Section 4.15 or 4.20, shall hereby waive notice of acceptance hereof,
notice of any liability of any Guarantor hereunder, notice or proof of reliance
by the Holders upon the obligations of any Guarantor hereunder, and diligence,
presentment, demand for payment on the Issuer, protest, notice of dishonor or
nonpayment of any of the Obligations, or other notice or formalities to the
Issuer or any Guarantor of any kind whatsoever.


 


12.14.                  No Obligation to Take Action
Against the Issuer.


 


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 Obligations or against the Issuer or any other
Person or any property of such Issuer or any other Person before the Trustee is
entitled to demand payment and performance by any or all Guarantors of their
liabilities and obligations under their Guarantees or under this Indenture.


 


12.15.                  Dealing with the Issuer and
Others.


 


The Holders, without releasing, discharging,
limiting or otherwise affecting in whole or in part the obligations and
liabilities of any Guarantor and without the consent of or notice to any
Guarantor, may


 


(i)                  grant time,
renewals, extensions, compromises, concessions, waivers, releases, discharges
and other indulgences to the Issuer or any other Person;


 


114
















 


(ii)               take or abstain
from taking security or collateral from the Issuer or from perfecting security
or collateral of the Issuer;


 


(iii)            release,
discharge, compromise, realize, enforce or otherwise deal with or do any act or
thing in respect of (with or without consideration) any and all collateral,
mortgages or other security given by the Issuer or any third party with respect
to the obligations or matters contemplated by this Indenture or the Securities;


 


(iv)           accept
compromises or arrangements from the Issuer;


 


(v)              apply all
monies at any time received from the Issuer or from any security upon such part
of the Obligations as the Holders may see fit or change any such application in
whole or in part from time to time as the Holders may see fit; and


 


(vi)           otherwise deal
with, or waive or modify their right to deal with, the Issuer and all other
Persons and any security as the Holders or the Trustee may see fit.


 


12.16.      Default and
Enforcement.


 


If any Guarantor fails to pay in accordance with Section 12.6
hereof, the Trustee may proceed in its name as trustee hereunder in the
enforcement of the Guarantee of any such Guarantor and such Guarantor’s
obligations thereunder and hereunder by any remedy provided by law, whether by
legal proceedings or otherwise, and to recover from such Guarantor the obligations.


 


12.17.      Amendment, etc.


 


No amendment, modification or waiver of any
provision of this Indenture relating to any Guarantor or consent to any
departure by any Guarantor or any other Person from any such provision will in
any event be effective unless it is signed by such Guarantor and the Trustee.


 


12.18.      Acknowledgment.


 


Each Guarantor, upon the execution and delivery of
this Indenture or a Guarantee pursuant to Section 4.15 or 4.20, shall
hereby acknowledge communication of the terms of this Indenture and the Securities
and shall hereby consent to and approves of the same.


 


12.19.      Costs and
Expenses.


 


Each Guarantor shall pay on demand by the Trustee
any and all costs, fees and expenses (including, without limitation, legal fees
on a solicitor and client basis) incurred by the Trustee, its agents, advisors
and counsel or any of the Holders in enforcing any of their rights under any
Guarantee.


 


12.20.      No Merger or
Waiver; Cumulative Remedies.


 


No Guarantee shall operate by way of merger of any
of the obligations of a Guarantor under any other agreement, including, without
limitation, this Indenture.  No failure
to exercise 


 


115

















 


and no delay in exercising,
on the part of the Trustee or the Holders, any right, remedy, power or
privilege hereunder or under this Indenture or the Securities, shall operate as
a waiver thereof; nor shall any single or partial exercise of any right,
remedy, power or privilege hereunder or under this Indenture or the Securities
preclude any other or further exercise thereof or the exercise of any other
right, remedy, power or privilege.  The
rights, remedies, powers and privileges in the Guarantee and under this
Indenture, the Securities and any other document or instrument between a
Guarantor and/or the Issuer and the Trustee are cumulative and not exclusive of
any rights, remedies, powers and privilege provided by law.


 


12.21.      Survival of
Obligations.


 


Without prejudice to the survival of any of the
other obligations of any Guarantor hereunder, the obligations of each Guarantor
under Section 12.1 shall survive the payment in full of the Obligations
under the Securities, but only if and to the extent such payment is avoided,
and in such case shall be enforceable against such Guarantor to the same extent
as prior to any such payment and without regard to and without giving effect to
any defense, right of offset or counterclaim available to or which may be
asserted by the Issuer or any Guarantor.


 


12.22.      Guarantee in
Addition to Other Obligations.


 


The Obligations of each Guarantor under its
Guarantee and this Indenture are in addition to and not in substitution for any
other Obligations to the Trustee or to any of the Holders in relation to this
Indenture or the Securities and any guarantees or security at any time held by
or for the benefit of any of them.


 


12.23.      Severability.


 


Any provision of this Article Twelve which is
prohibited or unenforceable in any jurisdiction shall not invalidate the
remaining provisions and any such prohibition or unenforceability in any
jurisdiction shall not invalidate or render unenforceable such provision in any
other jurisdiction unless its removal would substantially defeat the basic
intent, spirit and purpose of this Indenture and this Article Twelve.


 


12.24.      Successors and
Assigns.


 


Each Guarantee shall be binding upon and inure to
the benefit of each Guarantor and the Trustee and the other Holders and their
respective successors and permitted assigns, except that no Guarantor may
assign any of its obligations hereunder or thereunder, except as otherwise
permitted in this Indenture.


 


116

















 


ARTICLE THIRTEEN



TRUST MONIES


 


13.1.        Trust Monies.


 


All Trust Monies shall be held by or delivered to
the Trustee in accordance with the provisions of the applicable Security
Documents.  Trust Monies, if any, shall,
so long as no Event of Default has occurred and is continuing, at the direction
of the Company, be (a) applied by the Trustee from time to time to the
payment of the principal of, premium, if any, and interest on any Securities at
maturity or upon redemption or retirement, or to the purchase of Securities
upon tender or in the open market or otherwise, (b) released to the extent
such cash would be considered Collateral under the Security Documents following
such release or (c) applied to cure any Event of Default set forth in Section 6.1(a) or
(b) in each case in accordance with the Security Documents.


 


13.2.        Investment of
Trust Monies.


 


All or any part of any Trust Monies held by the
Trustee hereunder (except such as may be held for the account of any particular
Securities) shall from time to time be invested or reinvested by the Trustee in
any Cash Equivalents pursuant to the written direction of the Company, which
shall specify the Cash Equivalents in which such Trust Monies shall be
invested.  Unless a Default or Event of
Default occurs and is continuing, any interest or dividends earned or paid on
such Cash Equivalents (in excess of any accrued interest paid at the time of
purchase) which may be received by the Trustee shall be forthwith paid to the
Company.  Such Cash Equivalents shall be
held by the Trustee as a part of the Collateral, subject to the same provisions
hereof as the cash used by it to purchase such Cash Equivalents.  The Trustee shall not be liable or
responsible for any loss resulting from such investments or sales except only
for its own grossly negligent action, its own grossly negligent failure to act,
its own material breach of this Indenture or its own willful misconduct in
complying with this Section 13.2.


 


ARTICLE FOURTEEN


 


MISCELLANEOUS


 


14.1.        TIA Controls.


 


If any provision of this Indenture limits,
qualifies, or conflicts with another provision which is required to be included
in this Indenture by the TIA, the required provision shall control.


 


14.2.        Notices.


 


Any notices or other communications required or
permitted hereunder shall be in writing, and shall be sufficiently given if
made by hand delivery, by telex, by telecopier or registered or certified mail,
postage prepaid, return receipt requested, addressed as follows:


 


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if to the Issuer or a Guarantor:


 


	
  Clean
  Harbors, Inc.

  
	
  42
  Longwater Drive

  
	
  Norwell,
  MA 02061

  
	
  Attention:

  	
  Chief
  Financial Officer

  
	
  Fax No:

  	
  (781) 792-5900

  



 


with a copy to:


 


	
  Davis,
  Malm & D’Agostine, P.C.

  
	
  One
  Boston Place,

  
	
  37th
  Floor

  
	
  Boston,
  MA 02108

  
	
  Attention:

  	
  C.
  Michael Malm

  
	
  Fax No:

  	
  (617) 523-6215

  



 


if to the Trustee or the Notes Collateral Agent:


 


	
  U.S.
  Bank National Association

  
	
  One
  Federal Street

  
	
  3rd
  Floor

  
	
  Boston,
  MA 02110

  
	
  Attention:

  	
  Corporate
  Trust Services

  
	
  Fax No:

  	
  (617) 603-6667

  



 


if to the Trustee for presentation of Securities for payment or for
registration of transfer or exchange:


 


	
  U.S.
  Bank National Association

  
	
  Corporate
  Trust Services

  
	
  Westside
  Flats Operation Center

  
	
  60
  Livingston Avenue

  
	
  St.
  Paul, MN 55107

  
	
  Attention:

  	
  Specialized Finance

  



 


The Issuer, the Trustee and the Notes Collateral
Agent by written notice to each other such Person may designate additional or
different addresses for notices to such Person. Any notice or communication to
the Issuer, the Trustee and the Notes Collateral Agent, shall be deemed to have
been given or made as of the date so delivered if personally delivered; when
answered back, if telecopied; and five (5) calendar days after mailing if
sent by registered or certified mail, postage prepaid (except that a notice of
change of address shall not be deemed to have been given until actually received
by the addressee), except that, with respect to any mailing, notices to the
Trustee shall be deemed effective only upon receipt.


 


118

















 


Any notice or communication mailed to a Securityholder
shall be mailed to him by first class mail or other equivalent means at his
address as it appears on the registration books of the Registrar and shall be
sufficiently given to him if so mailed within the time prescribed.


 


Failure to mail a notice or communication to a
Securityholder or any defect in it shall not affect its sufficiency with
respect to other Securityholders. If a notice or communication is mailed in the
manner provided above, it is duly given, whether or not the addressee receives
it.


 


14.3.        Communications
by Holders with Other Holders.


 


Securityholders may communicate pursuant to TIA
§ 312(b) with other Securityholders with respect to their rights
under this Indenture or the Securities. The Issuer, the Trustee, the Registrar
and any other Person shall have the protection of TIA § 312(c).


 


14.4.        Certificate and
Opinion as to Conditions Precedent.


 


Upon any request or application by the Issuer to the
Trustee to take any action under this Indenture, the Issuer shall furnish to
the Trustee at the request of the Trustee:


 


(i)                  an Officers’
Certificate, in form and substance satisfactory to the Trustee, stating that,
in the opinion of the signers, all conditions precedent to be performed or effected
by the Issuer, if any, provided for in this Indenture relating to the proposed
action have been complied with; and


 


(ii)               an Opinion of
Counsel stating that, in the opinion of such counsel, any and all such
conditions precedent have been complied with.


 


14.5.        Statements
Required in Certificate or Opinion.


 


Each certificate or opinion with respect to
compliance with a condition or covenant provided for in this Indenture, other
than the Officers’ Certificate required by Section 4.8, shall include:


 


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


 


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


 


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


 


(iv)           a statement as
to whether or not, in the opinion of each such Person, such condition or
covenant has been complied with; provided, however, that with
respect to matters of fact an Opinion of Counsel may rely on an Officers’
Certificate or certificates of public officials.


 


119

















 


14.6.        Rules by
Trustee, Paying Agent, Registrar.


 


The Trustee, Paying Agent or Registrar may make
reasonable rules for its functions.


 


14.7.        Legal Holidays.


 


If a payment date is not a Business Day, payment may
be made on the next succeeding day that is a Business Day.


 


14.8.        Governing Law.


 


THIS INDENTURE, THE SECURITIES AND ANY GUARANTEES
WILL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF
NEW YORK WITHOUT GIVING EFFECT TO APPLICABLE PRINCIPLES OF CONFLICTS OF LAWS TO
THE EXTENT THAT THE APPLICATION OF THE LAWS OF ANOTHER JURISDICTION WOULD BE
REQUIRED THEREBY. Each of the parties hereto agrees to submit to the
jurisdiction of the courts of the State of New York in any action or proceeding
arising out of or relating to this Indenture, the Securities or any Guarantees.


 


14.9.        No Adverse
Interpretation of Other Agreements.


 


This Indenture may not be used to interpret another
indenture, loan or debt agreement of any of the Company or any of its Subsidiaries.
Any such indenture, loan or debt agreement may not be used to interpret this Indenture.


 


14.10.      No Recourse
Against Others.


 


No Affiliate, director, officer, employee, limited
liability company members or stockholder of the Company or any Subsidiary, as
such, shall have any liability for any obligations of the Issuer under the
Securities or any Guarantee or this Indenture or for any claim based on, in
respect of, or by reason of, such obligations or their creation. Each
Securityholder by accepting a Security waives and releases all such liability. Such
waiver and release are part of the consideration for the issuance of the
Securities.


 


14.11.      Successors.


 


All agreements of the Issuer and the Guarantors in
this Indenture and the Securities and the Guarantees shall bind their
respective successors. All agreements of the Trustee or the Notes Collateral
Agent in this Indenture shall bind its successor.


 


14.12.      Duplicate
Originals.


 


All parties may sign any number of copies of this
Indenture. Each signed copy or counterpart shall be an original, but all of
them together shall represent the same agreement.


 


120

















 


14.13.      Severability.


 


In case any one or more of the provisions in this
Indenture, the Securities or the Guarantees shall be held invalid, illegal or
unenforceable, in any respect for any reason, the validity, legality and
enforceability of any such provision in every other respect and of the
remaining provisions shall not in any way be affected or impaired thereby, it
being intended that all of the provisions hereof shall be enforceable to the
full extent permitted by law.


 


121
















 


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


 


	
   

  	
  CLEAN
  HARBORS, INC.

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  James M. Rutledge

  
	
   

  	
  Name:

  	
  James
  M. Rutledge

  
	
   

  	
  Title:

  	
  Executive
  Vice President and

  
	
   

  	
   

  	
    Chief Financial Officer

  



 


(signatures continued on next page)


 

















 


	
   

  	
  ALTAIR
  DISPOSAL SERVICES, LLC

  
	
   

  	
  BATON
  ROUGE DISPOSAL, LLC

  
	
   

  	
  BRIDGEPORT
  DISPOSAL, LLC

  
	
   

  	
  CH
  INTERNATIONAL HOLDINGS, INC.

  
	
   

  	
  CLEAN
  HARBORS (MEXICO), INC.

  
	
   

  	
  CLEAN
  HARBORS ANDOVER, LLC

  
	
   

  	
  CLEAN
  HARBORS ANTIOCH, LLC

  
	
   

  	
  CLEAN
  HARBORS ARAGONITE, LLC

  
	
   

  	
  CLEAN
  HARBORS ARIZONA, LLC

  
	
   

  	
  CLEAN
  HARBORS BATON ROUGE, LLC

  
	
   

  	
  CLEAN
  HARBORS BDT, LLC

  
	
   

  	
  CLEAN
  HARBORS BUTTONWILLOW, LLC

  
	
   

  	
  CLEAN
  HARBORS CHATTANOOGA, LLC

  
	
   

  	
  CLEAN
  HARBORS CLIVE, LLC

  
	
   

  	
  CLEAN
  HARBORS COFFEYVILLE, LLC

  
	
   

  	
  CLEAN
  HARBORS COLFAX, LLC

  
	
   

  	
  CLEAN
  HARBORS DEER TRAIL, LLC

  
	
   

  	
  CLEAN
  HARBORS DEVELOPMENT, LLC

  
	
   

  	
  CLEAN
  HARBORS DISPOSAL SERVICES, INC.

  
	
   

  	
  CLEAN
  HARBORS EL DORADO, LLC

  
	
   

  	
  CLEAN
  HARBORS ENVIRONMENTAL SERVICES, INC.

  
	
   

  	
  CLEAN
  HARBORS FLORIDA, LLC

  
	
   

  	
  CLEAN
  HARBORS GRASSY MOUNTAIN, LLC

  
	
   

  	
  CLEAN
  HARBORS KANSAS, LLC

  
	
   

  	
  CLEAN
  HARBORS KINGSTON FACILITY CORPORATION

  
	
   

  	
  CLEAN
  HARBORS LAUREL, LLC

  
	
   

  	
  CLEAN
  HARBORS LONE MOUNTAIN, LLC

  
	
   

  	
  CLEAN
  HARBORS LONE STAR CORP.

  
	
   

  	
  CLEAN
  HARBORS LOS ANGELES, LLC

  
	
   

  	
  CLEAN
  HARBORS OF BALTIMORE, INC.

  
	
   

  	
  CLEAN
  HARBORS OF BRAINTREE, INC.

  
	
   

  	
  CLEAN
  HARBORS OF CONNECTICUT, INC.

  
	
   

  	
  CLEAN
  HARBORS OF NATICK, INC.

  
	
   

  	
  CLEAN
  HARBORS OF TEXAS, LLC

  
	
   

  	
  CLEAN
  HARBORS PECATONICA, LLC

  
	
   

  	
  CLEAN
  HARBORS PPM, LLC

  
	
   

  	
  CLEAN
  HARBORS RECYCLING SERVICES OF CHICAGO, LLC

  
	
   

  	
  (list
  continued on next page)

  



 

















 


	
   

  	
  CLEAN
  HARBORS RECYCLING SERVICES OF OHIO, LLC

  
	
   

  	
  CLEAN
  HARBORS REIDSVILLE, LLC

  
	
   

  	
  CLEAN
  HARBORS SAN JOSE, LLC

  
	
   

  	
  CLEAN
  HARBORS SERVICES, INC.

  
	
   

  	
  CLEAN
  HARBORS TENNESSEE, LLC

  
	
   

  	
  CLEAN
  HARBORS WESTMORLAND, LLC

  
	
   

  	
  CLEAN
  HARBORS WHITE CASTLE, LLC

  
	
   

  	
  CLEAN
  HARBORS WILMINGTON, LLC

  
	
   

  	
  CROWLEY
  DISPOSAL, LLC

  
	
   

  	
  DISPOSAL
  PROPERTIES, LLC

  
	
   

  	
  GSX
  DISPOSAL, LLC

  
	
   

  	
  HARBOR
  MANAGEMENT CONSULTANTS, INC.

  
	
   

  	
  HILLIARD
  DISPOSAL, LLC

  
	
   

  	
  MURPHY’S
  WASTE OIL SERVICE, INC.

  
	
   

  	
  ROEBUCK
  DISPOSAL, LLC

  
	
   

  	
  SAWYER
  DISPOSAL SERVICES, LLC

  
	
   

  	
  SERVICE
  CHEMICAL, LLC

  
	
   

  	
  SPRING
  GROVE RESOURCE RECOVERY, INC.

  
	
   

  	
  TULSA
  DISPOSAL, LLC

  
	
   

  	
   

  
	
   

  	
  By:
  

  	
  /s/
  James M. Rutledge

  
	
   

  	
  Name:
  

  	
  James
  M. Rutledge

  
	
   

  	
  Title:
  

  	
  Executive
  Vice President

  
	
   

  	
   

  
	
   

  	
  PLAQUEMINE
  REMEDIATION SERVICES, LLC

  
	
   

  	
   

  
	
   

  	
  By:
  

  	
  /s/
  William Geary

  
	
   

  	
  Name:
  

  	
  William
  Geary

  
	
   

  	
  Title:
  

  	
  Manager

  
	
   

  	
   

  
	
   

  	
  CLEAN
  HARBORS FINANCIAL SERVICES COMPANY

  
	
   

  	
   

  
	
   

  	
  By:
  

  	
  /s/
  James M. Rutledge

  
	
   

  	
  Name:
  

  	
  James
  M. Rutledge

  
	
   

  	
  Title:
  

  	
  Trustee

  



 


(signatures continued on next page)


 

















 


	
   

  	
  CLEAN
  HARBORS DEER PARK, L.P.

  
	
   

  	
  CLEAN
  HARBORS LAPORTE, L.P.

  
	
   

  	
  HARBOR
  INDUSTRIAL SERVICES TEXAS, L.P.

  
	
   

  	
   

  
	
   

  	
  By:
  Clean Harbors of Texas, LLC, its General Partner

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  James M. Rutledge

  
	
   

  	
   

  	
  Name:
  James M. Rutledge

  
	
   

  	
   

  	
  Title:
  Executive Vice President

  



 


S-1

















 


	
   

  	
  U.S. BANK NATIONAL ASSOCIATION,

  
	
   

  	
    as Trustee

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Karen R. Beard

  
	
   

  	
   

  	
  Name: Karen R. Beard

  
	
   

  	
   

  	
  Title: Vice
  President

  



 


S-2

















 


	
   

  	
  U.S.
  BANK NATIONAL ASSOCIATION,

  
	
   

  	
    as
  Notes Collateral Agent

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  Karen R. Beard

  
	
   

  	
   

  	
  Name:
  Karen R. Beard

  
	
   

  	
   

  	
  Title: Vice President

  



 


S-1

















 


Exhibit
A


 


[FORM OF
INITIAL NOTE](1)


 


[FACE
OF SECURITY]


 


CLEAN
HARBORS, INC.


 


75/8% Senior Secured Note due 2016


 




	
  No.

  	
   

  	
  Principal
  Amount $

  






 


ISIN No.


 


CUSIP No.


 


CLEAN HARBORS, INC., a Massachusetts corporation
(the “Company” or the “Issuer,” which terms include any of its
successors under the Indenture hereinafter referred to), for value received
promise to pay to CEDE & CO. or registered assigns, the principal sum
of Dollars ($      ) on August 15, 2016.


 


Interest Payment Dates: February 15 and August 15;
commencing February 15, 2010.


 


Record Dates: February 1 and August 1.


 


Reference is made to the further provisions of this
Security contained herein, which will for all purposes have the same effect as
if set forth at this place.


 






(1)           Add Private Placement Legend and, if appropriate, add
Global Security Legend and/or OID Legend.


 


A-1

















 


IN WITNESS WHEREOF, the Issuer has caused this
Security to be signed manually or by facsimile by their duly authorized
officers.


 


Dated:


 


	
   

  	
  CLEAN
  HARBORS, INC.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  



 


A-2

















 


[FORM OF
TRUSTEE’S CERTIFICATE OF AUTHENTICATION]


 


This is one of the Initial Notes described in the
within-mentioned Indenture.


 


	
   

  	
  U.S.
  BANK NATIONAL ASSOCIATION,

  
	
   

  	
  as
  Trustee

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Authorized Signatory

  



 


A-3
















 


[REVERSE
OF SECURITY]


 


CLEAN
HARBORS, INC.


 


75/8% Senior Secured Note due 2016


 


1.                                       Interest.


 


CLEAN HARBORS, INC., a Massachusetts corporation
(the “Company”, or the “Issuer,” which terms include any of its
successors under the Indenture hereinafter referred to), promises to pay
interest on the principal amount of this Security at the rate per annum shown
above.  The Issuer will pay interest
semiannually on February 15 and August 15 of each year (each, an “Interest
Payment Date”), commencing February 15, 2010.  Interest on this Security will accrue from
the most recent date to which interest has been paid or, if no interest has
been paid, from and including August 14, 2009.  Interest on this Security will be computed on
the basis of a 360-day year of twelve 30-day months.


 


The Issuer shall pay interest on overdue principal
from time to time on demand at the rate borne by this Security plus 2% and on
overdue installments of interest (without regard to any applicable grace
periods) to the extent lawful.


 


2.                                       Method of
Payment.


 


The Issuer shall pay interest on the Securities
(except defaulted interest) to the Persons who are the registered Holders at
the close of business on the Record Date immediately preceding the Interest Payment
Date even if the Securities are canceled on registration of transfer or
registration of exchange (including pursuant to an Exchange Offer (as defined
in the Indenture)) after such Record Date. 
Holders must surrender Securities to a Paying Agent to collect principal
payments.  The Issuer shall pay
principal, premium, if any and interest in money of the United States that at
the time of payment is legal tender for payment of public and private debts (“U.S.
Legal Tender”).  However, the Issuer
may pay principal, premium, if any, and interest by wire transfer of federal
funds, or interest by check payable in such U.S. Legal Tender.  The Issuer may deliver any such interest
payment to the Paying Agent or to a Holder at the Holder’s registered address.


 


3.                                       Paying Agent
and Registrar.


 


Initially, U.S. Bank National Association (the “Trustee”)
will act as Paying Agent and Registrar. 
The Issuer may change any Paying Agent, Registrar or co-Registrar
without notice to the Holders.  The
Company or any of its Subsidiaries may, subject to certain exceptions, act as
Registrar or co-Registrar.


 


A-4

















 


4.                                       Indenture.


 


The Issuer issued the Securities under an Indenture,
dated as of August 14, 2009 (the “Indenture”), among the Issuer,
the Guarantors, the Trustee and Notes Collateral Agent.  This Security is one of a duly authorized
issue of Securities of the Issuer designated as their 75/8% Senior Secured Notes due 2016.  Capitalized terms herein are used as defined
in the Indenture unless otherwise defined herein.  The terms of the Securities include those
stated in the Indenture and those made part of the Indenture by reference to
the Trust Indenture Act of 1939 (15 U.S.C. §§ 77aaa-77bbbb) (the “TIA”),
as in effect on the date of the Indenture until such time as the Indenture is
qualified under the TIA, and thereafter as in effect on the date on which the
Indenture is qualified under the TIA. 
Notwithstanding anything to the contrary herein, the Securities are
subject to all such terms, and Holders of Securities are referred to the
Indenture and the TIA for a statement of them. 
The Securities are general obligations of the Issuer unlimited in
amount.


 


5.                                       Optional
Redemption.


 


The Issuer may redeem all or any portion of the
Securities, on and after August 15, 2012, upon not less than 30 nor more
than 60 days’ notice, at the following redemption prices (expressed as percentages
of the principal amount) if redeemed during the twelve-month period commencing
on August 15 of the years set forth below, plus, in each case, accrued and
unpaid interest, if any, to the date of redemption:


 


	
  Year

  	
   

  	
  Percentage

  	
   

  
	
  2012

  	
   

  	
  103.813

  	
  %

  
	
  2013

  	
   

  	
  101.906

  	
  %

  
	
  2014 and thereafter

  	
   

  	
  100.000

  	
  %

  



 


At any time, or from time to time, prior to August 15,
2012, the Issuer may, at its option, use the Net Cash Proceeds of one or more
Equity Offerings to redeem up to 35% in aggregate principal amount of the
Securities originally issued under the Indenture at a Redemption Price equal to
107.625% of the principal amount thereof plus accrued and unpaid interest
thereon, if any, to the Redemption Date; provided, however, that
after any such redemption the aggregate principal amount of the Securities
outstanding must equal at least 65% of the aggregate amount of the Securities
originally issued under the Indenture. 
In order to effect the foregoing redemption with the net cash proceeds
of any Equity Offering, the Issuer shall make such redemption not more than 90
days after the consummation of such Equity Offering.


 


At any time prior to August 15, 2012, the Issuer
may, on one or more occasions, redeem all or any portion of the Securities,
upon not less than 30 nor more than 60 days’ notice, at a Redemption Price
equal to 100% of the principal amount of the Securities redeemed, plus the Applicable
Premium as of the date of redemption, including accrued and unpaid interest to
the redemption date.


 


In addition, at any time and from time to time prior
to August 15, 2012, but not more than once in any twelve-month period, the
Issuer may redeem up to 10% of the original aggregate principal amount of
Securities issued under the Indenture at a Redemption Price of 103% of the 


 


A-5

















 


principal amount thereof,
plus accrued and unpaid interest to the applicable Redemption Date.


 


6.                                       Notice of
Redemption.


 


Notice of redemption shall be mailed by first-class
mail at least 30 days but not more than 60 days before the Redemption Date to
each Holder of Securities to be redeemed at such Holder’s registered
address.  Securities in denominations of
$2,000 may be redeemed only in whole. 
The Trustee may select for redemption portions (equal to $2,000 or
integral multiples of $1,000 thereof) of the principal of Securities that have
denominations larger than $2,000.


 


If any Security is to be redeemed in part only, the
notice of redemption that relates to such Security shall state the portion of
the principal amount thereof to be redeemed. 
A new Security in a principal amount equal to the unredeemed portion
thereof will be issued in the name of the Holder thereof upon cancellation of
the original Security.  On and after the
Redemption Date, interest will cease to accrue on Securities or portions
thereof called for redemption, subject to the provisions of the Indenture.


 


7.                                       Change of
Control Offer.


 


Upon the occurrence of a Change of Control, the
Issuer will be required, as and to the extent set forth in the Indenture, to
offer to purchase all of the outstanding Securities at a purchase price equal
to 101% of the principal amount thereof, plus accrued and unpaid interest, if
any, thereon to the date of repurchase (subject to the right of Securityholders
of record on the relevant record date to receive interest due on the relevant
interest payment date); provided  however, that notwithstanding
the occurrence of a Change of Control, the Issuer shall not be obligated to repurchase
the Securities pursuant to this paragraph 7 in the event that the Issuer have
exercised their right to redeem all of the Securities under the terms of
paragraph 5 hereof).


 


8.                                       Limitation on
Asset Sales.


 


The Issuer is, subject to certain conditions,
obligated to make an offer to purchase Securities at 100% of their principal
amount, plus accrued and unpaid interest, if any, thereon to the date of
repurchase with certain Net Cash Proceeds of certain sales or other dispositions
of assets in accordance with the Indenture.


 


9.                                       Registration
Rights.


 


Pursuant to the Registration Rights Agreement, the
Issuer will be obligated to consummate an exchange offer pursuant to which the
Holder of this Security shall have the right to exchange this Security for the
Issuer’s 75/8% Senior Secured Notes due
2016, which shall have been registered under the Securities Act, in like
principal amount and having terms substantially identical in all material
respects to this Security.  The Holders
of this Security shall be entitled to receive certain additional interest
payments in the event such exchange offer is not consummated and upon certain
other conditions, all pursuant to and in accordance with the terms of the Registration
Rights Agreement.


 


A-6

















 


10.                                 Denominations;
Transfer; Exchange.


 


The Securities are in registered form, without
coupons, in denominations of $2,000 and integral multiples of $1,000.  A Holder shall register the transfer of or
exchange Securities in accordance with the Indenture.  The Registrar may require a Holder, among
other things, to furnish appropriate endorsements and transfer documents and to
pay certain transfer taxes or similar governmental charges payable in
connection therewith as permitted by the Indenture.  The Registrar need not register the transfer
of or exchange any Securities or portions thereof selected for redemption,
except the unredeemed portion of any security being redeemed in part.


 


11.                                 Persons Deemed
Owners.


 


The registered Holder of a Security shall be treated
as the owner of it for all purposes.


 


12.                                 Unclaimed Funds.


 


If funds for the payment of principal, premium, if
any, or interest remain unclaimed for two years, the Trustee and the Paying
Agent will repay the funds to the Issuer at their request.  After that, all liability of the Trustee and
such Paying Agent with respect to such funds shall cease.


 


13.                                 Discharge Prior
to Redemption or Maturity.


 


The Issuer and any Guarantor may be discharged from
their obligations under the Indenture or the Securities and any Guarantee
except for certain provisions thereof, and may be discharged from obligations
to comply with certain covenants contained in the Indenture and the Securities
and any Guarantee, in each case upon satisfaction of certain conditions specified
in the Indenture.


 


14.                                 Amendment;
Supplement; Waiver.


 


Subject to certain exceptions, the Indenture and the
Securities and any Guarantee may be amended or supplemented with the written
consent of the Holders of at least a majority in aggregate principal amount of
the Securities then outstanding, and any existing Default or Event of Default
or compliance with any provision may be waived with the consent of the Holders
of a majority in aggregate principal amount of the Securities then
outstanding.  From time to time, the
Issuer, the Guarantors and the Trustee, without the consent of the Holders, may
amend the Indenture, the Intercreditor Agreement and the Security Documents to
cure ambiguities, defects or inconsistencies, and to add Guarantees, to release
the Noteholder Secured Parties’ Lien with respect to Collateral in accordance
with the terms and conditions of the Indenture and the Security Documents or similar
provisions, so long as such change does not, in the good faith determination of
the Issuer’s Board of Directors, adversely affect the rights of any of the
Holders of the Securities in any material respect. In addition, without the
consent of the Holders of the Securities, the Issuer, the Guarantors and the
Trustee may amend the Indenture, the Security Documents and the Intercreditor
Agreement to provide for the release of Collateral from the Lien of the
Indenture and the Security Documents when permitted or required by the Security
Documents, the Intercreditor Agreement or the Indenture, to secure any Other
Pari Passu Lien 


 


A-7

















 


Obligations under the
Security Documents and to appropriately include the same in the Intercreditor
Agreement, to modify the Intercreditor Agreement to allow for Liens on the
Notes Collateral which secure Indebtedness secured by Liens with Junior Lien
Priority that are senior to the Liens on the Notes Collateral which secure the
ABL Obligations, so long as such Liens with Junior Lien Priority are junior to
the Liens securing the Securities to the extent set forth in the definition of “Junior
Lien Priority” (or to include such Indebtedness secured by Liens with Junior
Lien Priority in the Intercreditor Agreement) or to conform the Indenture, the
Security Documents or the Intercreditor Agreement to the “Description of the
Notes” contained in the Offering Circular.


 


15.                                 Restrictive
Covenants.


 


The Indenture contains certain covenants that, among
other things, limit the ability of the Company and its Restricted Subsidiaries
to make restricted payments, to incur indebtedness, to create liens, to sell
assets, to permit restrictions on dividends and other payments by Restricted
Subsidiaries of the Company to the Company, to consolidate, merge or sell all
or substantially all of its assets or to engage in transactions with
affiliates.  The limitations are subject
to a number of important qualifications and exceptions.  The Company must annually report to the
Trustee on compliance with such limitations.


 


16.                                 Defaults and
Remedies.


 


If an Event of Default occurs and is continuing, the
Trustee or the Holders of at least 25% in aggregate principal amount of
Securities then outstanding may declare all the Securities to be due and
payable immediately in the manner and with the effect provided in the
Indenture.  Holders of Securities may not
enforce the Indenture, the Securities or any Guarantee except as provided in
the Indenture.  The Trustee is not
obligated to enforce the Indenture, the Securities or the Guarantees, unless it
has received indemnity satisfactory to it. 
The Indenture permits, subject to certain limitations therein provided,
Holders of a majority in aggregate principal amount of the Securities then
outstanding to direct the Trustee in its exercise of any trust or power.  The Trustee may withhold from Holders of
Securities notice of certain continuing Defaults or Events of Default if it
determines that withholding notice is in their interest.


 


17.                                 Trustee
Dealings with Issuer.


 


The Trustee under the Indenture, in its individual
or any other capacity, may become the owner or pledgee of Securities and may otherwise
deal with the Issuer, their Subsidiaries or their respective Affiliates as if
it were not the Trustee.


 


18.                                 No Recourse
Against Others.


 


No Affiliate, stockholder, director, officer,
employee or limited liability company member of the Issuer or any of their
Subsidiaries shall have any liability for any obligations of the Issuer under
the Securities or any Guarantee or the Indenture or for any claim based on, in
respect of or by reason of, such obligations or their creation.  Each Holder of a Security by accepting a
Security waives and releases all such liability.  The waiver and release are part of the
consideration for the issuance of the Securities.


 


A-8

















 


19.                                 Authentication.


 


This Security shall not be valid until the Trustee
or authenticating agent signs the certificate of authentication on this
Security.


 


20.                                 Abbreviations
and Defined Terms.


 


Customary abbreviations may be used in the name of a
Holder of a Security or an assignee, such as: 
TEN COM (= tenants in common), TEN ENT (= tenants by the entireties), JT
TEN (= joint tenants with right of survivorship and not as tenants in common),
CUST (= Custodian), and U/G/M/A (= Uniform Gifts to Minors Act).


 


21.                                 Governing Law.


 


This Security shall be governed by, and construed in
accordance with, the laws of the State of New York without giving effect to
applicable principles of conflicts of laws to the extent that the application
of the laws of another jurisdiction would be required thereby.


 


22.                                 CUSIP and ISIN
Numbers.


 


Pursuant to a recommendation promulgated by the
Committee on Uniform Security Identification Procedures, the Issuer have caused
CUSIP and ISIN numbers to be printed on the Securities as a convenience to the
Holders of the Securities.  No
representation is made as to the accuracy of such numbers as printed on the
Securities and reliance may be placed only on the other identification numbers
printed hereon.


 


23.                                 Indenture.


 


Each Holder, by accepting a Security, agrees to be
bound by all of the terms and provisions of the Indenture, as the same may be
amended from time to time.


 


The Issuer will furnish to any Holder of a Security
upon written request and without charge a copy of the Indenture which has the
text of this Security in larger type. 
Requests may be made to:  Clean
Harbors, Inc., 42 Longwater Drive, Norwell, MA, 02061, Attn:  Chief Financial Officer.


 


A-9
















 


ASSIGNMENT FORM


 


	
  I
  or we assign and transfer this Security to

  
	
   

  
	
   

  
	
   

  
	
  (Print
  or type name, address and zip code of assignee or transferee)

  
	
   

  
	
   

  
	
  (Insert
  Social Security or other identifying number of assignee or transferee)

  
	
   

  
	
  and
  irrevocably appoint                                                                
  agent to transfer this Security on the books of the Issuer.  The agent may substitute another to act for
  him.

  
	
   

  
	
  Dated: 

  	
                                             

  	
   

  	
  Signed: 

  	
   

  
	
   

  	
   

  	
  (Sign
  exactly as name appears on the other side of this Security)

  
	
   

  	
   

  
	
  Signature Guarantee: 

  	
   

  	
   

  
							



 


Participant in a recognized Signature Guarantee
Medallion Program (or other signature guarantor program reasonably acceptable
to the Trustee)


 


In connection with any transfer of this Security
occurring prior to the date which is the earlier of (i) the date of the
declaration by the Commission of the effectiveness of a registration statement
under the Securities Act of 1933, as amended (the “Securities Act”),
covering resales of this Security (which effectiveness shall not have been
suspended or terminated at the date of the transfer) and (ii) August 14,
2010, the undersigned confirms that it has not utilized any general
solicitation or general advertising in connection with the transfer and that
this Security is being transferred:


 


[Check
One]


 


	
  (1)

  	
   

  	
  o

  	
   

  	
  to
  the Issuer or a subsidiary thereof; or

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  (2)

  	
   

  	
  o

  	
   

  	
  pursuant
  to and in compliance with Rule 144A under the Securities Act; or

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  (3)

  	
   

  	
  o

  	
   

  	
  to
  an institutional “accredited investor” (as defined in Rule 501(a)(1),
  (2), (3) or (7) under the Securities Act) that has furnished to the
  Trustee a signed letter containing certain representations and agreements
  (the form of which letter can be obtained from the Trustee); or

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  (4)

  	
   

  	
  o

  	
   

  	
  outside
  the United States to a “foreign person” in compliance with Rule 904 of
  Regulation S under the Securities Act; or

  



 


A-10

















 


	
  (5)

  	
   

  	
  o

  	
   

  	
  pursuant
  to the exemption from registration provided by Rule 144 under the
  Securities Act; or

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  (6)

  	
   

  	
  o

  	
   

  	
  pursuant
  to an effective registration statement under the Securities Act; or

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  (7)

  	
   

  	
  o

  	
   

  	
  pursuant
  to another available exemption from the registration requirements of the
  Securities Act;

  



 


and unless the box below is checked, the
undersigned confirms that such Security is not being transferred to an “affiliate”
of the Issuer as defined in Rule 144 under the Securities Act of 1933, as
amended (an “Affiliate”):


 


	
   

  	
   

  	
  o

  	
   

  	
  The
  transferee is an Affiliate of the Issuer.

  



 


Unless one of the items is checked, the Trustee will
refuse to register any of the Securities evidenced by this certificate in the
name of any person other than the registered Holder thereof; provided that
if box (3), (4), (5) or (7) is checked, the Issuer or the Trustee may
require, prior to registering any such transfer of the Securities, in its sole
discretion, such legal opinions, certifications (including an investment letter
in the case of box (3) or (4)) and other information as the Trustee or the
Issuer have reasonably requested 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.


 


A-11

















 


If none of the foregoing boxes is checked, the
Trustee or Registrar shall not be obligated to register this Security 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 2.16 of
the Indenture shall have been satisfied.


 


	
  Dated:

  	
                                            

  	
   

  	
  Signed:

  	
   

  
	
   

  	
   

  	
  (Sign
  exactly as name appears on the other side of this Security)

  
	
   

  	
   

  
	
  Signature Guarantee: 

  	
   

  	
   

  
							



 


TO BE COMPLETED BY PURCHASER IF (2) ABOVE IS CHECKED


 


The undersigned represents and warrants that it is
purchasing this Security 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 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 Issuer 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-12

















 


OPTION OF HOLDER TO ELECT PURCHASE


 


If you want to elect to have this Security purchased
by the Company pursuant to Section 4.17 or Section 4.18 of the
Indenture, check the appropriate box:


 


Section 4.17 o              Section 4.18 o


 


If you want to elect to have only part of this
Security purchased by the Company pursuant to Section 4.17 or Section 4.18
of the Indenture, state the amount:  $


 


	
  Dated:

  	
                                            

  	
   

  	
  Signed:

  	
   

  
	
   

  	
   

  	
  (Sign
  exactly as name appears on the other side of this Security)

  
	
   

  	
   

  
	
  Signature Guarantee: 

  	
   

  	
   

  
							



 


Participant in a recognized Signature Guarantee
Medallion Program (or other signature guarantor program reasonably acceptable
to the Trustee)


 


A-13
















 


Exhibit B


 


[FORM OF EXCHANGE NOTE](1)


 


[FACE OF SECURITY]


 


CLEAN HARBORS, INC.


 


75/8% Senior Secured Note due
2016


 


	
  No.

  	
   

  	
  Principal Amount $

  
	
   

  	
   

  	
   

  
	
  ISIN No.

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  CUSIP No.

  	
   

  	
   

  



 


CLEAN HARBORS, INC., a Massachusetts corporation
(the “Company” or the “Issuer,” which terms include any of its
successors under the Indenture hereinafter referred to), for value received
promise to pay to CEDE & CO. or registered assigns, the principal sum
of Dollars ($), on August 15, 2016.


 


Interest Payment Dates:  February 15 and August 15, commencing
[               ],
20[ ].


 


Record Dates: 
February 1 and August 1.


 


Reference is made to the further provisions of this
Security contained herein, which will for all purposes have the same effect as
if set forth at this place.


 






(1)           If appropriate, add Global Security Legend and/or
OID Legend.


 


B-1

















 


IN WITNESS WHEREOF, the Issuer has caused this
Security to be signed manually or by facsimile by their duly authorized
officers.


 


	
  Dated:

  	
   

  
	
   

  	
   

  
	
   

  	
  CLEAN
  HARBORS, INC.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:  

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  



 


B-2

















 


[FORM OF TRUSTEE’S CERTIFICATE OF AUTHENTICATION]


 


This is one of the 75/8% Senior Secured Notes due 2016 described in the within-mentioned Indenture.


 


	
   

  	
  U.S.
  BANK NATIONAL ASSOCIATION,

  
	
   

  	
  as
  Trustee

  
	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:  

  	
   

  
	
   

  	
   

  	
  Authorized Signatory

  



 


B-3

















 


[REVERSE OF SECURITY]


 


CLEAN HARBORS, INC.


 


75/8% Senior Secured Note due
2016


 


1.             Interest.


 


CLEAN HARBORS, INC., a Massachusetts corporation
(the “Company” or the “Issuer,” which terms include any of its
successors under the Indenture hereinafter referred to), promises to pay
interest on the principal amount of this Security at the rate per  annum
shown above.  The Issuer will pay
interest semiannually on February 15 and August 15 of each year
(each, an “Interest Payment Date”), commencing [          ], 20[ ].  Interest on this Security will accrue from
the most recent date to which interest has been paid or, if no interest has
been paid, from and including [         
], 20[ ].  Interest on this
Security will be computed on the basis of a 360-day year of twelve 30-day
months.


 


The Issuer shall pay interest on overdue principal
from time to time on demand at the rate borne by this Security plus 2% and on
overdue installments of interest (without regard to any applicable grace
periods) to the extent lawful.


 


2.             Method of Payment.


 


The Issuer shall pay interest on the Securities
(except defaulted interest) to the Persons who are the registered Holders at
the close of business on the Record Date immediately preceding the Interest Payment
Date even if the Securities are canceled on registration of transfer or
registration of exchange (including pursuant to an Exchange Offer (as defined
in the Indenture)) after such Record Date. 
Holders must surrender Securities to a Paying Agent to collect principal
payments.  The Issuer shall pay
principal, premium, if any and interest in money of the United States that at
the time of payment is legal tender for payment of public and private debts (“U.S.
Legal Tender”).  However, the Issuer
may pay principal, premium, if any, and interest by wire transfer of federal
funds, or interest by check payable in such U.S. Legal Tender.  The Issuer may deliver any such interest
payment to the Paying Agent or to a Holder at the Holder’s registered address.


 


3.             Paying Agent and Registrar.


 


Initially, U.S. Bank National Association (the “Trustee”)
will act as Paying Agent and Registrar. 
The Issuer may change any Paying Agent, Registrar or co-Registrar
without notice to the Holders.  The
Company or any of its Subsidiaries may, subject to certain exceptions, act as
Registrar or co-Registrar.


 


4.             Indenture.


 


The Issuer issued the Securities under an Indenture,
dated as of August 14, 2009 (the “Indenture”), among the Issuer,
the Guarantors, the Trustee and Notes Collateral Agent.  This


 


B-4

















 


Security is one of a duly
authorized issue of Securities of the Issuer designated as their 75/8% Senior Secured Notes due 2016.  Capitalized terms herein are used as defined
in the Indenture unless otherwise defined herein.  The terms of the Securities include those
stated in the Indenture and those made part of the Indenture by reference to
the Trust Indenture Act of 1939 (15 U.S.C. §§ 77aaa-77bbbb) (the “TIA”),
as in effect on the date of the Indenture until such time as the Indenture is
qualified under the TIA, and thereafter as in effect on the date on which the Indenture
is qualified under the TIA. 
Notwithstanding anything to the contrary herein, the Securities are subject
to all such terms, and Holders of Securities are referred to the Indenture and
the TIA for a statement of them.  The
Securities are general obligations of the Issuer unlimited in amount.


 


5.             Optional Redemption.


 


The Issuer may redeem all or any portion of the
Securities, on and after August 15, 2012, upon not less than 30 nor more
than 60 days’ notice, at the following redemption prices (expressed as percentages
of the principal amount) if redeemed during the twelve-month period commencing
on August 15 of the years set forth below, plus, in each case, accrued and
unpaid interest, if any, to the date of redemption:


 


	
  Year

  	
   

  	
  Percentage

  	
   

  
	
  2012

  	
   

  	
  103.813

  	
  %

  
	
  2013

  	
   

  	
  101.906

  	
  %

  
	
  2014 and thereafter

  	
   

  	
  100.000

  	
  %

  



 


At any time, or from time to time, prior to August 15,
2012, the Issuer may, at its option, use the Net Cash Proceeds of one or more
Equity Offerings to redeem up to 35% in aggregate principal amount of the
Securities originally issued under the Indenture at a Redemption Price equal to
107.625% of the principal amount thereof plus accrued and unpaid interest
thereon, if any, to the Redemption Date; provided, however, that
after any such redemption the aggregate principal amount of the Securities
outstanding must equal at least 65% of the aggregate amount of the Securities
originally issued under the Indenture. 
In order to effect the foregoing redemption with the net cash proceeds
of any Equity Offering, the Issuer shall make such redemption not more than 90
days after the consummation of such Equity Offering.


 


At any time prior to August 15, 2012, the
Issuer may, on one or more occasions, redeem all or any portion of the
Securities, upon not less than 30 nor more than 60 days’ notice, at a Redemption
Price equal to 100% of the principal amount of the Securities redeemed, plus
the Applicable Premium as of the date of redemption, including accrued and
unpaid interest to the redemption date.


 


In addition, at any time and from time to time prior
to August 15, 2012, but not more than once in any twelve-month period, the
Issuer may redeem up to 10% of the original aggregate principal amount of
Securities issued under the Indenture at a Redemption Price of 103% of the
principal amount thereof, plus accrued and unpaid interest to the applicable
Redemption Date.


 


B-5

















 


6.             Notice of Redemption.


 


Notice of redemption shall be mailed by first-class
mail at least 30 days but not more than 60 days before the Redemption Date to
each Holder of Securities to be redeemed at such Holder’s registered
address.  Securities in denominations of
$2,000 may be redeemed only in whole. 
The Trustee may select for redemption portions (equal to $2,000 or
integral multiples of $1,000 thereof) of the principal of Securities that have
denominations larger than $2,000.


 


If any Security is to be redeemed in part only, the
notice of redemption that relates to such Security shall state the portion of
the principal amount thereof to be redeemed. 
A new Security in a principal amount equal to the unredeemed portion
thereof will be issued in the name of the Holder thereof upon cancellation of
the original Security.  On and after the
Redemption Date, interest will cease to accrue on Securities or portions
thereof called for redemption, subject to the provisions of the Indenture.


 


7.             Change of Control Offer.


 


Upon the occurrence of a Change of Control, the
Issuer will be required, as and to the extent set forth in the Indenture, to
offer to purchase all of the outstanding Securities at a purchase price equal
to 101% of the principal amount thereof, plus accrued and unpaid interest, if
any, thereon to the date of repurchase (subject to the right of Securityholders
of record on the relevant record date to receive interest due on the relevant
interest payment date); provided, however, that notwithstanding
the occurrence of a Change of Control, the Issuer shall not be obligated to repurchase
the Securities pursuant to this paragraph 7 in the event that the Issuer have
exercised their right to redeem all of the Securities under the terms of
paragraph 5 hereof).


 


8.             Limitation on Asset Sales.


 


The Issuer is, subject to certain conditions,
obligated to make an offer to purchase Securities at 100% of their principal
amount, plus accrued and unpaid interest, if any, thereon to the date of
repurchase with certain Net Cash Proceeds of certain sales or other dispositions
of assets in accordance with the Indenture.


 


10.           Denominations, Transfer,
Exchange.


 


The Securities are in registered form, without
coupons, in denominations of $2,000 and integral multiples of $1,000.  A Holder shall register the transfer of or
exchange Securities in accordance with the Indenture.  The Registrar may require a Holder, among
other things, to furnish appropriate endorsements and transfer documents and to
pay certain transfer taxes or similar governmental charges payable in
connection therewith as permitted by the Indenture.  The Registrar need not register the transfer
of or exchange any Securities or portions thereof selected for redemption,
except the unredeemed portion of any security being redeemed in part.


 


11.           Persons Deemed Owners.


 


The registered Holder of a Security shall be treated
as the owner of it for all purposes.


 


B-6

















 


12.           Unclaimed Funds.


 


If funds for the payment of principal, premium, if
any, or interest remain unclaimed for two years, the Trustee and the Paying
Agent will repay the funds to the Issuer at their request.  After that, all liability of the Trustee and
such Paying Agent with respect to such funds shall cease.


 


13.           Discharge Prior to
Redemption or Maturity.


 


The Issuer and any Guarantors may be discharged from
their obligations under the Indenture or the Securities and any Guarantee
except for certain provisions thereof, and may be discharged from obligations
to comply with certain covenants contained in the Indenture and the Securities
and any Guarantee, in each case upon satisfaction of certain conditions
specified in the Indenture.


 


14.           Amendment; Supplement;
Waiver.


 


Subject to certain exceptions, the Indenture and the
Securities and any Guarantee may be amended or supplemented with the written
consent of the Holders of at least a majority in aggregate principal amount of
the Securities then outstanding, and any existing Default or Event of Default
or compliance with any provision may be waived with the consent of the Holders
of a majority in aggregate principal amount of the Securities then
outstanding.  From time to time, the
Issuer, the Guarantors and the Trustee, without the consent of the Holders, may
amend the Indenture, the Intercreditor Agreement and the Security Documents to
cure ambiguities, defects or inconsistencies, and to add Guarantees, to release
the Noteholder Secured Parties’ Lien with respect to Collateral in accordance
with the terms and conditions of the Indenture and the Security Documents or
similar provisions, so long as such change does not, in the good faith determination
of the Issuer’s Board of Directors, adversely affect the rights of any of the
Holders of the Securities in any material respect. In addition, without the
consent of the Holders of the Securities, the Issuer, the Guarantors and the
Trustee may amend the Indenture, the Security Documents and the Intercreditor
Agreement to provide for the release of Collateral from the Lien of the
Indenture and the Security Documents when permitted or required by the Security
Documents, the Intercreditor Agreement or the Indenture, to secure any Other
Pari Passu Lien Obligations under the Security Documents and to appropriately
include the same in the Intercreditor Agreement, to modify the Intercreditor
Agreement to allow for Liens on the Notes Collateral which secure Indebtedness
secured by Liens with Junior Lien Priority that are senior to the Liens on the
Notes Collateral which secure the ABL Obligations, so long as such Liens with
Junior Lien Priority are junior to the Liens securing the Securities to the
extent set forth in the definition of “Junior Lien Priority” (or to include
such Indebtedness secured by Liens with Junior Lien Priority in the
Intercreditor Agreement) or to conform the Indenture, the Security Documents or
the Intercreditor Agreement to the “Description of the Notes” contained in the
Offering Circular.


 


15.           Restrictive Covenants.


 


The Indenture contains certain covenants that, among
other things, limit the ability of the Company and its Restricted Subsidiaries
to make restricted payments, to incur indebtedness, to create liens, to sell
assets, to permit restrictions on dividends and other payments by Restricted 


 


B-7

















 


Subsidiaries of the Company
to the Company, to consolidate, merge or sell all or substantially all of its
assets or to engage in transactions with affiliates.  The limitations are subject to a number of
important qualifications and exceptions. 
The Company must annually report to the Trustee on compliance with such
limitations.


 


16.           Defaults and Remedies.


 


If an Event of Default occurs and is continuing, the
Trustee or the Holders of at least 25% in aggregate principal amount of
Securities then outstanding may declare all the Securities to be due and
payable immediately in the manner and with the effect provided in the
Indenture.  Holders of Securities may not
enforce the Indenture, the Securities or any Guarantee except as provided in
the Indenture.  The Trustee is not
obligated to enforce the Indenture, the Securities or the Guarantees, unless it
has received indemnity satisfactory to it. 
The Indenture permits, subject to certain limitations therein provided,
Holders of a majority in aggregate principal amount of the Securities then
outstanding to direct the Trustee in its exercise of any trust or power.  The Trustee may withhold from Holders of
Securities notice of certain continuing Defaults or Events of Default if it
determines that withholding notice is in their interest.


 


17.           Trustee Dealings with Issuer.


 


The Trustee under the Indenture, in its individual
or any other capacity, may become the owner or pledgee of Securities and may otherwise
deal with the Issuer, their Subsidiaries or their respective Affiliates as if
it were not the Trustee.


 


18.           No Recourse Against Others.


 


No Affiliate, stockholder, director, officer,
employee or limited liability company member of the Issuer or any of their
Subsidiaries shall have any liability for any obligations of the Issuer under
the Securities or any Guarantee or the Indenture or for any claim based on, in
respect of or by reason of, such obligations or their creation.  Each Holder of a Security by accepting a
Security waives and releases all such liability.  The waiver and release are part of the
consideration for the issuance of the Securities.


 


19.           Authentication.


 


This Security shall not be valid until the Trustee
or authenticating agent signs the certificate of authentication on this
Security.


 


20.           Abbreviations and Defined
Terms.


 


Customary abbreviations may be used in the name of a
Holder of a Security or an assignee, such as: 
TEN COM (= tenants in common), TEN ENT (= tenants by the entireties), JT
TEN (= joint tenants with right of survivorship and not as tenants in common),
CUST (= Custodian), and U/G/M/A (= Uniform Gifts to Minors Act).


 


B-8

















 


21.           Governing Law.


 


This Security shall be governed by, and construed in
accordance with, the laws of the State of New York without giving effect to
applicable principles of conflicts of laws to the extent that the application
of the laws of another jurisdiction would be required thereby.


 


22.           CUSIP and ISIN Numbers.


 


Pursuant to a recommendation promulgated by the
Committee on Uniform Security Identification Procedures, the Issuer have caused
CUSIP and ISIN numbers to be printed on the Securities as a convenience to the
Holders of the Securities.  No
representation is made as to the accuracy of such numbers as printed on the
Securities and reliance may be placed only on the other identification numbers
printed hereon.


 


23.           Indenture.


 


Each Holder, by accepting a Security, agrees to be
bound by all of the terms and provisions of the Indenture, as the same may be
amended from time to time.


 


The Issuer will furnish to any Holder of a Security
upon written request and without charge a copy of the Indenture which has the
text of this Security in larger type. 
Requests may be made to:  Clean
Harbors, Inc., 42 Longwater Drive, Norwell, MA, 02061, Attn:  Chief Financial Officer.


 


B-9






 












 


ASSIGNMENT FORM


 


	
  I
  or we assign and transfer this Security to

  
	
   

  
	
   

  
	
   

  
	
  (Print
  or type name, address and zip code of assignee or transferee)

  
	
   

  
	
   

  
	
  (Insert
  Social Security or other identifying number of assignee or transferee)

  
	
   

  
	
  and
  irrevocably appoint                                                                
  agent to transfer this Security on the books of the Issuer. The agent may
  substitute another to act for him.

  
	
   

  
	
  Dated: 

  	
                                             

  	
   

  	
  Signed: 

  	
   

  
	
   

  	
   

  	
  (Sign
  exactly as name appears on the other side of this Security) 

  
	
   

  	
   

  
	
  Signature Guarantee: 

  	
   

  	
   

  
							



 


Participant in a recognized Signature Guarantee
Medallion Program (or other signature guarantor program reasonably acceptable
to the Trustee)


 


B-10

















 


OPTION OF HOLDER TO ELECT PURCHASE


 


If you want to elect to have this Security purchased
by the Company pursuant to Section 4.17 or Section 4.18 of the
Indenture, check the appropriate box:


 


Section 4.17 o      Section 4.18 o


 


If you want to elect to have only part of this
Security purchased by the Company pursuant to Section 4.17 or Section 4.18
of the Indenture, state the amount:  $


 


	
  Dated:

  	
                                            

  	
   

  	
  Signed:

  	
   

  
	
   

  	
   

  	
  (Sign
  exactly as name appears on the other side of this Security) 

  
	
   

  	
   

  
	
  Signature Guarantee: 

  	
   

  	
   

  
							



 


Participant in a recognized Signature Guarantee
Medallion Program (or other signature guarantor program reasonably acceptable
to the Trustee)


 


B-11

















 


Exhibit C


 


Form of Certificate to Be

Delivered in Connection with

Transfers to Non-QIB Accredited Investors


 


[Date]


 


Attention:


 


	
  Re:  

  	
  Clean Harbors, Inc.

  	
   

  
	
   

  	
  75/8% Senior Secured Notes due
  2016

  	
   

  
	
   

  	
  (the “Securities”)

  	
   

  



 


Ladies and Gentlemen:


 


In connection with our proposed purchase of the
Securities of Clean Harbors, Inc. (the “Issuer”), we confirm that:


 


1.             We have
received a copy of the Offering Circular (the “Offering Circular”),
dated [           ],
20[  ] relating to the Securities and such other information as we
deem necessary in order to make our investment decision.  We acknowledge that we have read and agreed
to the matters stated on pages (i) and (ii) of the Offering
Circular and in the section entitled “Transfer Restrictions” of the Offering
Circular, including the restrictions on duplication and circulation of the Offering
Circular.


 


2.             We understand
that any subsequent transfer of the Securities is subject to certain
restrictions and conditions set forth in the Indenture relating to the Securities
(as described in the Offering Circular) and the undersigned agrees to be bound
by, and not to resell, pledge or otherwise transfer the Securities except in
compliance with, such restrictions and conditions and the Securities Act of
1933, as amended (the “Securities Act”).


 


3.             We understand
that the offer and sale of the Securities have not been registered under the
Securities Act, and that the Securities may not be offered or sold 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 sell or otherwise transfer any Securities
prior to the date which is two years after the original issuance of the
Securities, and if such transfer is in respect of any aggregate principal
amount of Securities of less than $250,000, also furnishes an opinion of
counsel acceptable to the Issuer that such transfer complies with the Securities
Act, we will do so only (i) to the Issuer or any of their subsidiaries, (ii) inside
the United States in accordance with Rule 144A under the Securities Act to a “qualified
institutional buyer” (as defined in Rule 144A under the Securities Act), (iii) inside
the United States to an institutional “accredited investor” (as defined below)
that, prior to such transfer, furnishes (or has furnished on its behalf by a
U.S. broker-dealer) to the Trustee (as defined in the Indenture relating 


 


C-1

















 


to the Securities), a signed
letter containing certain representations and agreements relating to the restrictions
on transfer of the Securities, (iv) outside the United States in
accordance with Rule 904 of Regulation S under the Securities Act, (v) pursuant
to the exemption from registration provided by Rule 144 under the
Securities Act (if available), or (vi) pursuant to an effective registration
statement under the Securities Act, and we further agree to provide to any
person purchasing any of the Securities from us a notice advising such purchaser
that resales of the Securities are restricted as stated herein.


 


4.             We understand
that, on any proposed resale of any Securities, we will be required to furnish
to the Trustee and the Issuer such certification, legal opinions and other information
as the Trustee and the Issuer may reasonably require to confirm that the
proposed sale complies with the foregoing restrictions.  We further understand that the Securities purchased
by us will bear a legend to the foregoing effect.


 


5.             We are an
institutional “accredited investor” (as defined in Rule 501(a)(1), (2), (3) or
(7) of Regulation D 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 Securities, and we and any accounts
for which we are acting are each able to bear the economic risk of our or their
investment, as the case may be.


 


6.             We are
acquiring the Securities purchased by us for our 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, and we are acquiring the Securities
not with a view to, or for offer or sale in connection with, any distribution
in violation of the Securities Act.


 


You and the Issuer 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 proceeding or official
inquiry with respect to the matters covered hereby.


 


	
   

  	
  Very
  truly yours,

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:  

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  



 


C-2

















 


Exhibit D


 


Form of Certificate to Be

Delivered in Connection with

Transfers Pursuant to Regulation S


 


[Date]


 


Attention:


 


	
  Re:  

  	
  Clean Harbors, Inc.

  	
   

  
	
   

  	
  75/8% Senior Secured Notes due
  2016

  	
   

  
	
   

  	
  (the “Securities”)

  	
   

  



 


Ladies and Gentlemen:


 


In connection with our proposed sale of
$                  
aggregate principal amount of the Securities, we confirm that such sale has
been effected pursuant to and in accordance with Regulation S under the U.S.
Securities Act of 1933, as amended (the “Securities Act”), and, accordingly,
we represent that:


 


(1)           the offer of the Securities was not made to a person
in the United States;


 


(2)           either (a) at the time the buy offer was
originated, the transferee was outside the United States or we and any person
acting on our behalf reasonably believed that the transferee 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 has been prearranged
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(b) or Rule 904(b) of
Regulation S, as applicable;


 


(4)           the transaction is not part of a plan or scheme to
evade the registration requirements of the Securities Act; and


 


(5)           we have advised the transferee of the transfer
restrictions applicable to the Securities.


 


You and the Issuer 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.


 


D-1

















 


	
   

  	
  Very
  truly yours,

  
	
   

  	
   

  
	
   

  	
  [Name
  of Transferor]

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:  

  	
   

  
	
   

  	
   

  	
  Authorized
  Signature

  



 


D-2

















 


Exhibit E


 


[FORM OF]




GUARANTEE


 


For value received, the undersigned hereby
unconditionally guarantees, as principal obligor and not only as a surety, to
the Holder of this Security the cash payments in United States dollars of
principal of, premium, if any, and interest on this Security in the amounts and
at the times when due and interest on the overdue principal, premium, if any,
and interest, if any, of this Security, if lawful, and the payment or
performance of all other obligations of the Issuer under the Indenture (as
defined below) or the Securities, to the Holder of this Security and the
Trustee, all in accordance with and subject to the terms and limitations of
this Security, Article Twelve of the Indenture and this Guarantee.  This Guarantee will become effective in
accordance with Article Twelve of the Indenture and its terms shall be
evidenced therein.  The validity and
enforceability of any Guarantee shall not be affected by the fact that it is
not affixed to any particular Security.


 


Capitalized terms used but not defined herein shall
have the meanings ascribed to them in the Indenture dated as of August 14,
2009, among Clean Harbors, Inc., a Massachusetts corporation (the “Company”
or the “Issuer”), the Guarantors, and U.S. Bank National Association, as
trustee (the “Trustee”) and Notes Collateral Agent.


 


The obligations of the undersigned to the Holders of
Securities and to the Trustee pursuant to this Guarantee and the Indenture are
expressly set forth in Article Twelve of the Indenture and reference is
hereby made to the Indenture for the precise terms of the Guarantee and all of
the other provisions of the Indenture to which this Guarantee relates.


 


THIS GUARANTEE SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK WITHOUT GIVING EFFECT TO
APPLICABLE PRINCIPLES OF CONFLICTS OF LAWS TO THE EXTENT THAT THE APPLICATION
OF THE LAWS OF ANOTHER JURISDICTION WOULD BE REQUIRED THEREBY.  The undersigned Guarantor hereby agrees to
submit to the jurisdiction of the courts of the State of New York in any action
or proceeding arising out of or relating to this Guarantee.


 


This Guarantee is subject to release upon the terms
set forth in the Indenture.


 


E-1

















 


IN WITNESS WHEREOF, each Guarantor has caused its
Guarantee to be duly executed.


 


	
   

  	
  [GUARANTORS]

  
	
   

  	
   

  
	
   

  	
  By:

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
  Name: 

  	
   

  
	
   

  	
  Title: