Exhibit 4.29A


 




 





AMENDED AND RESTATED SECURITY
AGREEMENT


 


among


 


CLEAN HARBORS, INC.,


 


VARIOUS SUBSIDIARIES

OF CLEAN HARBORS, INC.,


 


U.S. BANK NATIONAL ASSOCIATION,

as trustee for the Second Lien Note Creditors


 


and


 


CREDIT SUISSE,

as Collateral Agent and LC Facility Administrative Agent


 


Dated as of June 30, 2004,

Amended and Restated as of December 1, 2005




 





 





















 


TABLE OF CONTENTS


 


	
   

  	
   

  	
  Page

  
	
   

  	
  ARTICLE I

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  SECURITY INTERESTS

  	
   

  
	
   

  	
   

  	
   

  
	
  1.1

  	
  Grant of Security Interests

  	
  2

  
	
  1.2

  	
  Power of Attorney

  	
  5

  
	
   

  	
   

  	
   

  
	
   

  	
  ARTICLE II

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  GENERAL REPRESENTATIONS, WARRANTIES AND

  COVENANTS

  	
   

  
	
   

  	
   

  	
   

  
	
  2.1

  	
  Necessary Filings

  	
  5

  
	
  2.2

  	
  No Liens

  	
  6

  
	
  2.3

  	
  Other Financing Statements

  	
  6

  
	
  2.4

  	
  Chief Executive Office; Records

  	
  6

  
	
  2.5

  	
  Location of Inventory and Equipment

  	
  6

  
	
  2.6

  	
  Legal Names; Type of Organization (and Whether a Registered
  Organization and/or a Transmitting Utility); Jurisdiction of Organization;
  Location; Organizational Identification Numbers; Changes Thereto; etc

  	
  6

  
	
  2.7

  	
  Trade Names, etc

  	
  7

  
	
  2.8

  	
  Certain Significant Transactions

  	
  7

  
	
  2.9

  	
  Non-UCC Property

  	
  8

  
	
  2.10

  	
  As-Extracted Collateral; Timber-to-Be-Cut

  	
  8

  
	
  2.11

  	
  Collateral in the Possession of a Bailee

  	
  8

  
	
  2.12

  	
  Recourse

  	
  9

  
	
   

  	
   

  	
   

  
	
   

  	
  ARTICLE III

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  SPECIAL PROVISIONS CONCERNING INSTRUMENTS,

  CONTRACTS, SECURITIES COLLATERAL AND ROLLING STOCK

  	
   

  
	
   

  	
   

  	
   

  
	
  3.1

  	
  Instruments

  	
  8

  
	
  3.2

  	
  Assignors Remain Liable Under Contracts

  	
  9

  
	
  3.3

  	
  Deposit Accounts, Securities Accounts, etc

  	
  9

  
	
  3.4

  	
  Letter-of-Credit Rights

  	
  10

  
	
  3.5

  	
  Commercial Tort Claims

  	
  10

  
	
  3.6

  	
  Chattel Paper

  	
  11

  
	
  3.7

  	
  Rolling Stock

  	
  11

  
	
  3.8

  	
  Securities Collateral.

  	
  11

  
	
  3.9

  	
  Further Actions

  	
  13

  



 


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  ARTICLE IV

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  SPECIAL PROVISIONS CONCERNING TRADEMARKS

  	
   

  
	
   

  	
   

  	
   

  
	
  4.1

  	
  Additional Representations and Warranties

  	
  13

  
	
  4.2

  	
  Licenses and Assignments

  	
  14

  
	
  4.3

  	
  Infringements

  	
  14

  
	
  4.4

  	
  Preservation of Marks and Domain Names

  	
  14

  
	
  4.5

  	
  Maintenance of Registration

  	
  14

  
	
  4.6

  	
  Future Registered Marks and Domain Names

  	
  14

  
	
  4.7

  	
  Remedies

  	
  15

  
	
   

  	
   

  	
   

  
	
   

  	
  ARTICLE V

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  SPECIAL PROVISIONS CONCERNING PATENTS,

  COPYRIGHTS AND TRADE SECRETS

  	
   

  
	
   

  	
   

  	
   

  
	
  5.1

  	
  Additional Representations and Warranties

  	
  15

  
	
  5.2

  	
  Licenses and Assignments

  	
  16

  
	
  5.3

  	
  Infringements

  	
  16

  
	
  5.4

  	
  Maintenance of Patents and Copyrights

  	
  16

  
	
  5.5

  	
  Prosecution of Patent or Copyright Applications

  	
  16

  
	
  5.6

  	
  Other Patents and Copyrights

  	
  17

  
	
  5.7

  	
  Remedies

  	
  17

  
	
   

  	
   

  	
   

  
	
   

  	
  ARTICLE VI

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  PROVISIONS CONCERNING ALL COLLATERAL

  	
   

  
	
   

  	
   

  	
   

  
	
  6.1

  	
  Protection of Collateral Agent’s Security

  	
  17

  
	
  6.2

  	
  Warehouse Receipts Non-Negotiable

  	
  18

  
	
  6.3

  	
  Further Actions

  	
  18

  
	
  6.4

  	
  Financing Statements

  	
  18

  
	
  6.5

  	
  Additional Information

  	
  18

  
	
  6.6

  	
  Power of Attorney

  	
  19

  
	
   

  	
   

  	
   

  
	
   

  	
  ARTICLE VII

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  REMEDIES UPON OCCURRENCE OF EVENT OF DEFAULT

  	
   

  
	
   

  	
   

  	
   

  
	
  7.1

  	
  Remedies; Obtaining the Collateral upon Default

  	
  19

  
	
  7.2

  	
  Remedies; Disposition of the Collateral

  	
  20

  
	
  7.3

  	
  Certain Sales of Pledged Collateral.

  	
  21

  
	
  7.4

  	
  Waiver of Claims

  	
  23

  
	
  7.5

  	
  Application of Proceeds

  	
  23

  
	
  7.6

  	
  Remedies Cumulative

  	
  25

  
	
  7.7

  	
  Discontinuance of Proceedings

  	
  26

  



 


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  ARTICLE VIII

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  INDEMNITY

  	
   

  
	
   

  	
   

  	
   

  
	
  8.1

  	
  Indemnity

  	
  26

  
	
  8.2

  	
  Indemnity Obligations Secured by Collateral; Survival

  	
  27

  
	
   

  	
   

  	
   

  
	
   

  	
  ARTICLE IX

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  DEFINITIONS

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  ARTICLE X

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  MISCELLANEOUS

  	
   

  
	
   

  	
   

  	
   

  
	
  10.1

  	
  Notices

  	
  38

  
	
  10.2

  	
  Waiver; Amendment; Notice of Acceleration

  	
  39

  
	
  10.3

  	
  Obligations Absolute

  	
  41

  
	
  10.4

  	
  Successors and Assigns

  	
  41

  
	
  10.5

  	
  Headings Descriptive

  	
  42

  
	
  10.6

  	
  GOVERNING LAW

  	
  42

  
	
  10.7

  	
  Assignor’s Duties

  	
  42

  
	
  10.8

  	
  Termination; Release

  	
  42

  
	
  10.9

  	
  Counterparts

  	
  43

  
	
  10.10

  	
  The Collateral Agent; Secured Creditor Acknowledgments

  	
  43

  
	
  10.11

  	
  Severability

  	
  44

  
	
  10.12

  	
  Limited Obligations

  	
  44

  
	
  10.13

  	
  Additional Assignors

  	
  45

  
	
  10.14

  	
  No Third Party Beneficiaries

  	
  45

  
	
  10.15

  	
  Trustee’s Disclaimer.

  	
  45

  
	
  10.16

  	
  Revolving Agent as Collateral Agent.

  	
  46

  
	
   

  	
   

  	
   

  
	
  ANNEX A

  	
  Form of Grant of Security Interest in Certain Trademarks

  	
   

  
	
  ANNEX B

  	
  Form of Grant of Security Interest in Certain Patents

  	
   

  
	
  ANNEX C

  	
  Form of Grant of Security Interest in Certain Copyrights

  	
   

  
	
  ANNEX D

  	
  The Collateral Agent and Secured Creditor Acknowledgments

  	
   

  
	
  Exhibit A-1

  	
  Perfection Certificate

  	
   

  
	
  Exhibit A-2

  	
  Perfection Certificate Supplement

  	
   

  
				



 


iii





















 


AMENDED AND RESTATED SECURITY AGREEMENT


 


AMENDED AND
RESTATED SECURITY AGREEMENT, dated as of June 30, 2004 and amended and
restated as of December 1, 2005 (as the same may be further amended, restated,
modified and/or supplemented from time to time in accordance with the terms
hereof, this “Agreement”), among each of the undersigned assignors
(each, an “Assignor” and, together with each other entity which becomes
a party hereto pursuant to Section 10.13, collectively, the “Assignors”)
in favor of Credit Suisse, as collateral agent (together with any successor
collateral agent (including pursuant to Section 10.16 hereof), the “Collateral
Agent”) and as administrative agent under the LC Facility (as defined
below) (the “LC Facility Administrative Agent”), for the benefit of the
Secured Creditors (as defined below), and acknowledged and agreed to by U.S.
Bank National Association, solely in its capacity as trustee under the Senior
Second Lien Notes Indenture (as defined below) and not individually (together
with any successor trustee, the “Senior Second Lien Notes Indenture Trustee”)
for the Senior Second Lien Noteholders (as defined below).  Except as otherwise defined in Article IX
hereof, capitalized terms used herein and defined in the Credit Agreement (as
defined below) shall be used herein as therein defined.


 


W  I  T  N  E  S
S  E  T  H :


 


WHEREAS, Clean
Harbors, Inc. (“Parent”), the other Assignors, the LC Facility
Administrative Agent, Bank of America, N.A. (“BANA”), as administrative
agent under the Revolving Facility (the “Revolving Administrative Agent”),
Banc of America Securities LLC (“BAS”), as sole arranger under the
Revolving Facility, BANA, as syndication agent under the LC Facility, Credit
Suisse, as sole bookrunner under the LC Facility, and Credit Suisse and BAS, as
joint lead arrangers under the LC Facility, have entered into an Amended and
Restated Loan and Security Agreement, dated as of June 30, 2004, amended
as of July 20, 2005 and amended and restated as of December 1, 2005
(as the same may from time to time be further amended, modified, extended,
renewed, replaced, restated, supplemented and/or refinanced from time to time,
and includes any agreement extending the maturity of, or refinancing or
restructuring (including, but not limited to, the inclusion of additional
borrowers or guarantors thereunder or any increase in the amount borrowed
thereunder), of all or any portion of the First Lien Obligations (as defined
below) under such agreement or any successor agreement, whether or not with the
same agent, trustee, representative, banks or holders, the “Credit Agreement”),
including (i) a subfacility, providing for the issuance of, and
participation in, LC Facility Letters of Credit for the account of the
Borrower, all as contemplated therein (as used herein, the term “LC Facility”
means the subfacility under the Credit Agreement providing for the issuance of,
and participation in, LC Facility Letters of Credit as described in the Credit
Agreement) and (ii) a revolving credit facility that provides for
revolving borrowings and letter of credit accommodations (such facility, the “Revolving
Facility”);


 


WHEREAS,
Parent, as issuer, and the other Assignors, as guarantors (the “Subsidiary
Guarantors”), have entered into an Indenture, dated as of June 30,
2004 (as the same may be amended, restated, modified and/or supplemented from
time to time in accordance with the terms thereof and the Credit Agreement, the
“Senior Second Lien Notes Indenture”) with the Senior Second Lien Notes
Indenture Trustee, providing for the issuance by the Borrower of its


 





















 


11-1/4% Senior Second Lien Notes due 2012 in
the aggregate principal amount of $150.0 million (the “Senior Second Lien
Notes”; and the holders from time to time of the Senior Second Lien Notes
are referred to herein as the “Senior Second Lien Noteholders”);


 


WHEREAS, as
provided in the Senior Second Lien Notes Indenture, the Subsidiary Guarantors
have jointly and severally guaranteed the payment and performance when due of
all obligations and liabilities of Parent under or with respect to the Senior
Second Lien Notes and the Senior Second Lien Notes Indenture;


 


WHEREAS, it is
a condition precedent to the extensions of credit under the Credit Agreement
that each Assignor shall have executed and delivered to the Collateral Agent
this Agreement;


 


WHEREAS, in
connection with the issuance of the Senior Second Lien Notes by the Parent
under the Senior Second Lien Notes Indenture, each Assignor executed and delivered
to the Collateral Agent a security agreement, dated as of the Original Effective
Date (the “Original Security Agreement”), by and among the Assignors,
the Collateral Agent and the Senior Second Lien Notes Indenture Trustee; and


 


WHEREAS, each
Assignor authorized and directed the Senior Second Lien Notes Indenture Trustee
to enter into the Original Security Agreement as of the Original Effective
Date;


 


WHEREAS,
pursuant to Section 10.2 of the Original Security Agreement, the Original
Security Agreement is being amended and restated concurrently with the
Amendment and Restatement Effective Date under the Credit Agreement hereby with
the consent of the Majority LC Facility Lenders under the Original Credit
Agreement;


 


NOW,
THEREFORE, in consideration of the foregoing and the other benefits accruing to
each Assignor, the receipt and sufficiency of which are hereby acknowledged, (i) each
Assignor hereby makes the following representations and warranties to the
Collateral Agent for the benefit of the Secured Creditors, and (ii) each
Assignor hereby covenants and agrees with the Collateral Agent for the benefit
of the Secured Creditors as follows:


 


ARTICLE I


 


SECURITY
INTERESTS


 


1.1           Grant of Security Interests.  (a)  As security for the prompt and
complete payment and performance when due of all of its Obligations, each
Assignor hereby (A) subject to clause (e) of this Section 1.1,
confirms the pledge and grant to the Collateral Agent for the benefit of the
Bank Creditors pursuant to the Original Security Agreement, and in furtherance thereof, assigns
and transfer unto the Collateral Agent for the benefit of the Bank Creditors,
and does hereby pledge and grant to the Collateral Agent for the benefit of the
Bank Creditors, a continuing security interest in, all of the right, title and
interest of such Assignor in, to and under all of the following personal
property and fixtures (and all rights therein) of such Assignor, or in which or
to which such Assignor has any rights, in each case, whether now existing or
hereafter from


 


2





















 


time to time acquired, and (B) subject
to clauses (d) and (e) of this Section 1.1, separately confirms
the pledge and grant to the Collateral Agent for the benefit of the Senior
Second Lien Notes Creditors pursuant to the Original Security Agreement, and in furtherance thereof, assigns
and transfers unto the Collateral Agent for the benefit of the Senior Second
Lien Notes Creditors, and does hereby separately pledge and grant to the
Collateral Agent for the benefit of the Senior Second Lien Notes Creditors, a
separate continuing security interest in all of the right, title and interest
of such Assignor in, to and under all personal property and fixtures (and all
rights therein) of such Assignor, or in which or to which such Assignor has any
rights, in each case, whether now existing or hereafter from time to time
acquired, including without limitation, the following:


 


(i)    the Securities Collateral;


 


(ii)   all Contracts, together with all Contract
Rights arising thereunder;


 


(iii)  all Inventory;


 


(iv)  the Cash Collateral Account and any other cash
collateral account established for such Assignor for the benefit of the Secured
Creditors and all moneys, securities and Instruments deposited or required to
be deposited in such Cash Collateral Account;


 


(v)   all Equipment;


 


(vi)  all Marks, together with the registrations and
right to all renewals thereof, and the goodwill of the business of such
Assignor symbolized by the Marks;


 


(vii) all Patents and Copyrights and all reissues,
renewals and extensions thereof;


 


(viii)                all computer programs of such
Assignor and all intellectual property rights therein and all other proprietary
information of such Assignor, including, but not limited to, Trade Secrets and
Trade Secret Rights;


 


(ix)   all rights under insurance policies;


 


(x)    all other Goods, General Intangibles,
Chattel Paper (including, without limitation, all Tangible Chattel Paper and
all Electronic Chattel Paper), Documents and Instruments of such Assignor;


 


(xi)   all Permits;


 


(xii)  all cash;


 


(xiii) all Commercial Tort Claims;


 


(xiv)                all Deposit Accounts maintained
by such Assignor with any Person, together with all monies, securities,
Instruments and other investments deposited or required to be deposited in any
of the foregoing;


 


3





















 


(xv) all Investment Property;


 


(xvi)                all Letter-of-Credit Rights
(whether or not the respective letter of credit is evidenced by a writing);


 


(xvii)               all Software and all Software
licensing rights, all writings, plans, specifications and schematics, all engineering
drawings, customer lists, goodwill and licenses, and all recorded data of any
kind or nature, regardless of the medium of recording;


 


(xviii)              all Supporting Obligations; and


 


(xix) all Proceeds and products of any and all of the
foregoing (all of the above, including this clause (xix), collectively, the “Collateral”).


 


(b)           Notwithstanding anything to the
contrary contained in this Section 1.1 or elsewhere in this Agreement,
each Assignor, the Collateral Agent, the LC Facility Collateral Agent (on behalf
of the Bank Creditors) and the Senior Second Lien Notes Indenture Trustee (on
behalf of the Senior Second Lien Notes Creditors) acknowledge and agree that
(w) the security interest granted pursuant to this Agreement (including
pursuant to this Section 1.1) to the Collateral Agent (i) for the
benefit of the Bank Creditors, shall be a “first” priority senior security
interest in the Collateral and (ii) for the benefit of the Senior Second
Lien Notes Creditors, shall be a “second” priority security interest in the
Collateral fully junior, subordinated and subject to the security interest
granted to the Collateral Agent for the benefit of the Bank Creditors on the
terms and conditions set forth in this Agreement, in the other Security
Documents and in the Senior Second Lien Notes Documents and all other rights
and benefits afforded hereunder to the Senior Second Lien Notes Creditors are
expressly subject to the terms and conditions of this Agreement, the other
Security Documents and the Senior Second Lien Notes Documents, (x) the Senior
Second Lien Notes Creditors’ security interests in the Collateral constitute
security interests separate and apart (and of a different class and claim) from
the Bank Creditors’ security interests in the Collateral, (y) the grants of
security interest hereunder constitute two separate and distinct grants of
security, one in favor of the Collateral Agent for the benefit of the Bank Creditors,
the second in favor of the Collateral Agent for the benefit of the Senior
Second Lien Notes Creditors, and (z) in the event of any conflict between the
provisions of this Agreement or any other Security Document and the provisions
of the Senior Second Lien Notes Documents, the terms of this Agreement and the
other Security Documents shall prevail.


 


(c)           The security interest of the
Collateral Agent under this Agreement extends to all Collateral of the kind
which is the subject of this Agreement which any Assignor may acquire at any
time during the continuation of this Agreement.


 


(d)           Notwithstanding anything to the
contrary contained in this Agreement, the Senior Second Lien Notes Creditors
shall not have a security interest in, and the grant of security interests
pursuant to this Section 1.1 for the benefit of the Senior Second Lien
Notes Creditors shall not extend to, any Second Lien Excluded Collateral.


 


(e)           Notwithstanding anything to the
contrary contained in this Agreement, the Excluded Collateral shall not
constitute Collateral as defined herein.


 


4





















 


(f)            This Agreement amends and restates
the Original Security Agreement.  The
obligations of the Assignors under the Original Security Agreement and the
grant of security interest in the Collateral by the Assignors under the
Original Security Agreement shall continue under this Agreement, and shall not
in any event be terminated, extinguished or annulled, but shall hereafter be
governed by this Agreement.  It is
understood and agreed that the Original Security Agreement is being amended and
restated by entry into this Agreement by the consent of the Required Secured
Creditors in accordance with Section 10.2 hereof and pursuant to their
approval of the amendment and restatement of the Credit Agreement on the
Amendment and Restatement Effective Date.


 


1.2           Power of Attorney.  Each Assignor hereby constitutes and appoints
the Collateral Agent its true and lawful attorney, irrevocably, with full power
after the occurrence of and during the continuance of an Event of Default (in
the name of such Assignor or otherwise) to act, require, demand, receive,
compound and give acquittance for any and all monies and claims for monies due
or to become due to such Assignor under or arising out of the Collateral, to endorse
any checks or other instruments or orders in connection therewith and to file
any claims or take any action or institute any proceedings which the Collateral
Agent may deem to be necessary or advisable to accomplish the purposes of this
Agreement, which appointment as attorney is coupled with an interest.


 


ARTICLE II


 


GENERAL
REPRESENTATIONS, WARRANTIES AND

COVENANTS


 


Each Assignor
represents, warrants and covenants to the Collateral Agent for the benefit of
the Secured Creditors, which representations, warranties and covenants shall
survive execution and delivery of this Agreement, as follows:


 


2.1           Necessary Filings.  All filings, registrations and recordings
necessary or appropriate to create, preserve, protect and perfect the security
interest granted by such Assignor to the Collateral Agent for the benefit of
the Secured Creditors hereby in respect of the Collateral have been accomplished
on or prior to the Amendment and Restatement Effective Date (or, in the case of
property acquired after the Amendment and Restatement Effective Date, within 10
days after the acquisition thereof), and the security interest granted to the
Collateral Agent pursuant to this Agreement in and to all the Collateral
constitutes or will constitute, upon satisfaction of such filings, registrations
and recordings, a perfected security interest therein superior and prior to the
rights of all other Persons therein (other than any such rights pursuant to
Permitted Liens) and subject to no other Liens (other than Permitted Liens) and
is entitled to all the rights, priorities and benefits afforded by the Uniform
Commercial Code or other relevant law as enacted in any relevant jurisdiction
to perfected security interests, in each case to the extent that the Collateral
consists of the type of property in which a security interest may be perfected
by possession or control (within the meaning of the Uniform Commercial Code as
in effect on the Original Effective Date in the State of New York), by filing a
financing statement under the Uniform Commercial Code as enacted in any
relevant jurisdiction or by filing of a Grant of Security


 


5





















 


Interest in the respective form attached
hereto in the United States Patent and Trademark Office or in the United States
Copyright Office.


 


2.2           No Liens.  Such Assignor is, and as to all Collateral
acquired by it from time to time after the Amendment and Restatement Effective
Date such Assignor will be, the owner of all Collateral free from any Lien,
security interest, encumbrance or other right, title or interest of any other
Person (other than Permitted Liens), and such Assignor shall defend the
Collateral against all claims and demands of all Persons at any time claiming
the same or any interest therein (other than in connection with Permitted
Liens) adverse to the Collateral Agent.


 


2.3           Other Financing Statements.  As of the Amendment and Restatement Effective
Date, there is no financing statement (or similar statement or instrument of
registration under the law of any jurisdiction) evidencing a valid security
interest against any Assignor covering or purporting to cover any interest of
any kind in the Collateral (other than as may be filed in connection with
Permitted Liens), and at all times prior to the Termination Date, such Assignor
will not execute or authorize to be filed in any public office any financing
statement (or similar statement or instrument of registration under the law of
any jurisdiction) or statements relating to the Collateral, except financing
statements filed or to be filed in respect of and covering the security interests
granted hereby by such Assignor or in connection with Permitted Liens.


 


2.4           Chief Executive Office; Records.  As of the Amendment and Restatement Effective
Date, the chief executive office of such Assignor is located at the address or
addresses indicated on Schedule 2(a) to the Perfection
Certificate.  The originals of all
documents evidencing all Contract Rights and Trade Secret Rights of such
Assignor and the only original books of account and records of such Assignor
relating thereto are, and will continue to be, kept at such chief executive
office, such other locations indicated on Schedule 2 to the
Perfection Certificate or at such new locations as such Assignor may establish.


 


2.5           Location of Inventory and Equipment.  All Inventory and Equipment held on the
Amendment and Restatement Effective Date by each Assignor is located at one of
the locations shown on Schedule 2 to the Perfection Certificate or
in transit to any such location.


 


2.6           Legal Names; Type of Organization
(and Whether a Registered Organization and/or a Transmitting Utility);
Jurisdiction of Organization; Location; Organizational Identification Numbers;
Changes Thereto; etc.  The exact
legal name of each Assignor, the type of organization of such Assignor, whether
or not such Assignor is a Registered Organization, the jurisdiction of
organization of such Assignor, such Assignor’s Location and the organizational
identification number (if any) of such Assignor are listed on Schedule 1(a) to
the Perfection Certificate.  Such
Assignor shall not change its legal name, its type of organization, its status
as a Registered Organization (in the case of a Registered Organization), its
jurisdiction of organization, its Location, or its organizational
identification number (if any) from that set forth on Schedule 1(a) to
the Perfection Certificate for such Assignor, except that any such changes
shall be permitted (so long as not in violation of the applicable requirements
of the Secured Debt Agreements and so long as same do not involve (x) a
Registered Organization ceasing to constitute same or (y) such Assignor
changing its jurisdiction of organization or Location from the United States or
a State thereof (including Washington D.C.) to a jurisdiction of organization
or Location, as the case may be, outside the United States or a State thereof)
if (i) it shall have


 


6





















 


given to the Collateral Agent not less than
15 days’ prior written notice (or such shorter notice as may be consented to in
writing by the Collateral Agent) of each change to the information listed on Schedule 1(a) to
the Perfection Certificate (as adjusted for any subsequent changes thereto
previously made in accordance with this sentence), together with a supplement
to Schedule 1(a) to the Perfection Certificate which shall
correct all information contained therein for such Assignor, (ii) in
connection with such respective change or changes, it shall have taken all
action satisfactory to the Collateral Agent to maintain the security interests
of the Collateral Agent in the Collateral intended to be granted hereby at all
times fully perfected and in full force and effect, (iii) at the
reasonable request of the Collateral Agent, it shall have furnished an opinion
of counsel reasonably acceptable to the Collateral Agent to the effect that all
financing or continuation statements and amendments or supplements thereto have
been filed in the appropriate filing office or offices, and (iv) the
Collateral Agent shall have received evidence that all other actions
(including, without limitation, the payment of all filing fees and taxes, if
any, payable in connection with such filings) have been taken in order to
perfect (and maintain the perfection and priority of) the security interest
granted hereby.  In addition, to the
extent that such Assignor does not have an organizational identification number
on the Amendment and Restatement Effective Date (or, if later, on the date that
it becomes an Assignor hereunder) and later obtains one, such Assignor shall
promptly after becoming aware such number has been issued notify the Collateral
Agent of such organizational identification number and shall take all actions
reasonably satisfactory to the Collateral Agent to the extent necessary to
maintain the security interest of the Collateral Agent in the Collateral intended
to be granted hereby at all times fully perfected and in full force and effect.


 


2.7           Trade Names, etc.  Such Assignor does not have or operate in any
jurisdiction and in the preceding five years has not had and has not operated
in any jurisdiction under, any trade names, fictitious names or other names
except its legal name as specified in Schedule 1(a) to the
Perfection Certificate and such other trade or fictitious names as are listed
on Schedules 1(b) and 1(c) to the Perfection Certificate
for such Assignor.


 


2.8           Certain Significant Transactions.  During the one year period preceding the
Amendment and Restatement Effective Date (or, in the case of any Assignor that
becomes (or has become) a party hereto after the Amendment and Restatement
Effective Date, during the one year period preceding the date that it became a
party hereto), no Person shall have merged or consolidated with or into any
Assignor, and no Person shall have liquidated into, or transferred all or
substantially all of its assets to, any Assignor, in each case except as
described in Schedule 4 to the Perfection Certificate.  With respect to any transactions so described
in Schedule 4 to the Perfection Certificate, the respective
Assignor shall have furnished such information with respect to the Person (and
the assets of the Person and locations thereof) which merged with or into or
consolidated with such Assignor, or was liquidated into or transferred all or
substantially all of its assets to such Assignor, and shall have furnished to
the Collateral Agent such UCC lien searches as may have been requested with
respect to such Person and its assets to establish that no security interest
(excluding Permitted Liens) continues perfected on the Amendment and
Restatement Effective Date with respect to any Person described above (or the
assets transferred to the respective Assignor by such Person), including
without limitation pursuant to Section 9-316(a)(3) of the Uniform
Commercial Code.


 


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2.9           Non-UCC Property.  The aggregate fair market value (as
determined by the Borrower in good faith) of all property other than Rolling
Stock of the Assignors of the types described in clauses (1), (2) and (3) of
Section 9-311(a) of the Uniform Commercial Code does not exceed $1.0
million.  If the aggregate value of all
such property at any time owned by all Assignors exceeds $1.0 million, the
Borrower shall provide prompt written notice thereof to the Collateral Agent
and, upon the request of the Collateral Agent, the Assignors shall promptly
(and in any event within 30 days) take such actions (at their own cost and
expense) as may be required under the respective United States, State or other
laws referenced in Section 9-311(a) of the Uniform Commercial Code to
perfect the security interests granted herein in any Collateral where the
filing of a financing statement does not perfect the security interest in such
property in accordance with the provisions of Section 9-311(a) of the
Uniform Commercial Code.


 


2.10         As-Extracted Collateral;
Timber-to-Be-Cut.  On the Amendment
and Restatement Effective Date, such Assignor does not own, or expect to
acquire, any property which constitutes, or would constitute, As-Extracted Collateral
or Timber-to-Be-Cut.  If at any time
after the Amendment and Restatement Effective Date such Assignor owns, acquires
or obtains rights to any As-Extracted Collateral or Timber-to-Be-Cut, such
Assignor shall furnish the Collateral Agent with prompt written notice thereof
(which notice shall describe in reasonable detail the As-Extracted Collateral
and/or Timber-to-Be-Cut and the locations thereof) and shall take all actions
as may be deemed reasonably necessary or desirable by the Collateral Agent to
perfect the security interest of the Collateral Agent therein.


 


2.11         Collateral in the Possession of a
Bailee.  If any Inventory or other
Goods of any Assignor with a fair market value in excess of $100,000 are at any
time in the possession of a bailee, such Assignor shall promptly notify the
Collateral Agent thereof and, if requested by the Collateral Agent, shall use
its reasonable best efforts to promptly obtain an acknowledgment from such
bailee, in form and substance reasonably satisfactory to the Collateral Agent,
that the bailee holds such Collateral for the benefit of the Collateral Agent
and shall act upon the instructions of the Collateral Agent, without the
further consent of such Assignor.  The
Collateral Agent agrees with such Assignor that the Collateral Agent shall not
give any such instructions unless an Event of Default has occurred and is
continuing.


 


2.12         Recourse.  This Agreement is made with full recourse to
each Assignor and pursuant to and upon all the warranties, representations,
covenants and agreements on the part of such Assignor contained herein, in the
other Secured Debt Agreements and otherwise in writing in connection herewith
or therewith.


 


ARTICLE III


 


SPECIAL
PROVISIONS CONCERNING INSTRUMENTS,

CONTRACTS, SECURITIES COLLATERAL AND ROLLING STOCK


 


3.1           Instruments.  If any Assignor owns or acquires any
Instrument constituting Collateral (other than checks and other payment
instruments received and collected in the ordinary course of business), such
Assignor will within 10 Business Days thereafter notify the Collateral Agent
thereof and, upon request by the Collateral Agent, promptly deliver such
Instrument to the Collateral Agent appropriately endorsed to the order of the
Collateral Agent as


 


8





















 


further security hereunder; provided
that delivery and endorsement to the order of the Collateral Agent of
Instruments, the principal amount of which, when added to the aggregate
principal amount of all other Instruments owned or acquired by the Assignors
but not delivered or endorsed to the order of the Collateral Agent, does not
exceed $1,000,000 in the aggregate, shall not be required.


 


3.2           Assignors Remain Liable Under
Contracts.  Anything herein to the
contrary notwithstanding, the Assignors shall remain liable under each Contract
to observe and perform all of the conditions and obligations to be observed and
performed by them thereunder, all in accordance with the terms of such
Contract.  Neither the Collateral Agent
nor any other Secured Creditor shall have any obligation or liability under any
Contract by reason of or arising out of this Agreement or the receipt by the
Collateral Agent or any other Secured Creditor of any payment relating to such Contract
pursuant hereto, nor shall the Collateral Agent or any other Secured Creditor
be obligated in any manner to perform any of the obligations of any Assignor
under or pursuant to any Contract, to make any payment, to make any inquiry as
to the nature or the sufficiency of any payment received by it or as to the sufficiency
of any performance by any party under any Contract, to present or file any
claim, to take any action to enforce any performance or to collect the payment
of any amounts which may have been assigned to it or to which it may be
entitled at any time or times.


 


3.3           Deposit Accounts, Securities
Accounts, etc.  (a)  Assignors
do not have any Deposit Accounts constituting Collateral as of the Amendment
and Restatement Effective Date except for Deposit Accounts set forth in the
Perfection Certificate with respect to which the Collateral Agent has a perfected
security interest and Excluded Accounts. 
Assignors shall not, directly or indirectly, after the Amendment and
Restatement Effective Date open, establish or maintain any Deposit Account
constituting Collateral or permit any Deposit Account constituting Collateral
which is an Excluded Account to cease to meet the requirements set forth in the
definition thereof unless each of the following conditions is satisfied:  (i) in the case of any new Deposit
Account, the Collateral Agent shall have received not less than five (5) Business
Days’ prior written notice of the intention of any Assignor to open or
establish such Deposit Account which notice shall specify in reasonable detail
and specificity acceptable to the Collateral Agent the name of the Deposit
Account, the owner of the Deposit Account, the name and address of the bank or
other financial institution at which such Deposit Account is to be opened or
established, the individual at such bank or other financial institution with
whom such Assignor is dealing and the purpose of the account, (ii) the
bank or other financial institution where such account is opened or maintained
shall be acceptable to the Collateral Agent, and (iii) on or before the
opening of such Deposit Account (or, in the case of any Deposit Account which
ceases to be an Excluded Account, within 10 Business Days of such Deposit
Account ceasing to be an Excluded Account), such Assignor shall deliver to the
Collateral Agent a Deposit Account Control Agreement with respect to such
Deposit Account duly authorized, executed and delivered by such Assignor and
the bank at which such Deposit Account is maintained.


 


(b)           Assignors do not own or hold,
directly or indirectly, beneficially or as record owner or both, any Investment
Property, as of the Amendment and Restatement Effective Date, or have any
Securities Account, Commodity Account or other similar account with any bank or
other financial institution or other Securities Intermediary or Commodity
Intermediary as


 


9





















 


of the Amendment and Restatement Effective Date, in each case except
Securities Accounts and Commodity Accounts set forth in Schedule 16
to the Perfection Certificate with respect to which the Collateral Agent has a
perfected security interest through an Investment Property Control
Agreement.  Assignors shall not, directly
or indirectly, after the Amendment and Restatement Effective Date open,
establish or maintain any Securities Account or Commodity Account constituting
Collateral with any Securities Intermediary or Commodity Intermediary unless
each of the following conditions is satisfied: 
(A) the Collateral Agent shall have received not less than five (5) Business
Days’ prior written notice of the intention of an Assignor to open or establish
such account which notice shall specify in reasonable detail and specificity
acceptable to each Collateral Agent the name of the account, the owner of the account,
the name and address of the Securities Intermediary or Commodity Intermediary
at which such account is to be opened or established, the individual at such
intermediary with whom such an Assignor is dealing and the purpose of the
account, (B) the Securities Intermediary or Commodity Intermediary (as the
case may be) where such account is opened or maintained shall be acceptable to
the applicable Collateral Agent, and (C) on or before the opening of such
Securities Account or Commodity Account, such an Assignor shall execute and
deliver, and cause to be executed and delivered to the applicable Collateral
Agent, an Investment Property Control Agreement with respect thereto duly
authorized, executed and delivered by such an Assignor and such Securities
Intermediary or Commodity Intermediary.


 


(c)           In the event that any Assignor shall
be entitled to or shall at any time after the Amendment and Restatement
Effective Date hold or acquire any certificated securities constituting Collateral,
such Assignor shall promptly endorse, assign and deliver the same to the
Collateral Agent, accompanied by such instruments of transfer or assignment
duly executed in blank as the Collateral Agent may from time to time specify.  If any securities constituting Collateral,
now or hereafter acquired by any Assignor are uncertificated and are issued to
such Assignor or its nominee directly by the issuer thereof, such Assignor
shall immediately notify the Collateral Agent thereof and shall, as the
Collateral Agent may specify, either (A) cause the issuer to agree to
comply with instructions from such Collateral Agent as to such securities,
without further consent of such Assignor or such nominee, or (B) arrange
for such Collateral Agent to become the registered owner of the securities.


 


3.4           Letter-of-Credit Rights.  If any Assignor is at any time a beneficiary
under a letter of credit constituting Collateral with a stated amount of
$1,000,000 or more, such Assignor shall promptly notify the Collateral Agent thereof
and, at the request of the Collateral Agent, such Assignor shall, pursuant to
an agreement in form and substance reasonably satisfactory to the Collateral
Agent, use its reasonable best efforts to (i) arrange for the issuer and
any confirmer of such letter of credit to consent to an assignment to the
Collateral Agent of the proceeds of any drawing under such letter of credit or (ii) arrange
for the Collateral Agent to become the transferee beneficiary of such letter of
credit, with the Collateral Agent agreeing, in each case, that the proceeds of
any drawing under the letter of credit are to be applied as provided in this
Agreement after the occurrence and during the continuance of an Event of
Default.


 


3.5           Commercial Tort Claims.  All Commercial Tort Claims of each Assignor
and any events or circumstances that would reasonably be expected to give rise
to any Commercial Tort Claims of each Assignor as of the Amendment and
Restatement Effective Date are


 


10





















 


described in Schedule 15 to the
Perfection Certificate.  If any Assignor
shall at any time and from time to time after the date hereof acquire any
Commercial Tort Claims constituting Collateral in an amount (taking the greater
of the aggregate claimed damages thereunder or the reasonably estimated value
thereof) of $1,000,000 or more, such Assignor shall (i) promptly notify
the Collateral Agent thereof in a writing signed by such Assignor and
describing the details thereof and shall grant to the Collateral Agent in such
writing a security interest in all such Commercial Tort Claims and in the
proceeds thereof, all upon the terms of this Agreement, with such writing to be
in form and substance reasonably satisfactory to the Collateral Agent, and (ii) perform
all actions reasonably requested by the Collateral Agent to perfect such
security interest in such Commercial Tort Claims.  For its part, the Collateral Agent
acknowledges and agrees that the proceeds of any Commercial Tort Claim will be
applied as provided in this Agreement only after the occurrence and during the
continuance of an Event of Default and prior thereto will be promptly paid to
the respective Assignor.


 


3.6           Chattel Paper.  Upon the request of the Collateral Agent made
at any time or from time to time, each Assignor shall promptly furnish to the
Collateral Agent a list of all Electronic Chattel Paper constituting Collateral
held or owned by such Assignor. 
Furthermore, if requested by the Collateral Agent, each Assignor shall
promptly take all actions which are reasonably practicable so that the
Collateral Agent has “control” of all Electronic Chattel Paper constituting
Collateral in accordance with the requirements of Section 9-105 of the
Uniform Commercial Code.  Each Assignor
will promptly (and in any event within 10 Business Days) following any request
by the Collateral Agent, deliver all of its Tangible Chattel Paper constituting
Collateral to the Collateral Agent; provided that delivery to the
Collateral Agent of Tangible Chattel Paper constituting Collateral, the
principal amount of which, when added to the aggregate principal amount of all
other Tangible Chattel Paper constituting Collateral owned or acquired by the
Assignors but not delivered to the Collateral Agent, does not exceed $1,000,000
in the aggregate, shall not be required.


 


3.7           Rolling Stock.  Each Assignor shall cause all Rolling Stock,
now owned or hereafter acquired by any Assignor, which, under applicable law,
is required to be registered, to be properly registered (including, without
limitation, the payment of all necessary taxes and receipt of any applicable
permits) in the name of such Assignor and cause all Rolling Stock, now owned or
hereafter acquired by any Assignor, the ownership of which, under applicable
law (including, without limitation, any Motor Vehicle Law), is evidenced by a
certificate of title or ownership, to be properly titled in the name of such
Assignor, and in the case of any individual Rolling Stock of an Assignor with a
fair market value in excess of $10,000, the Liens of the Collateral Agent shall
be noted thereon.


 


3.8           Securities Collateral.


 


(a)           So long as no Event of Default shall
have occurred and be continuing:


 


(i)            Each Assignor shall be entitled to exercise any and all
voting and other consensual rights pertaining to the Securities Collateral or
any part thereof for any purpose not inconsistent with the terms or purposes
hereof, this Agreement or any other Secured Debt Agreement; provided, however,
that no Assignor shall in any event exercise such rights in any manner which
could violate this Agreement.


 


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(ii)           Each Assignor shall be entitled to receive and retain, and
to utilize free and clear of the Liens hereof, any and all Distributions, but only
if and to the extent made in accordance with the provisions of this Agreement; provided,
however, that any and all such Distributions consisting of rights or
interests in the form of securities shall be forthwith delivered to the
Collateral Agent to hold as Collateral and shall, if received by any Assignor,
be received in trust for the benefit of the Collateral Agent, be segregated
from the other property or funds of such Assignor and be forthwith delivered to
the Collateral Agent as Collateral in the same form as so received (with any
necessary endorsement).


 


(iii)          The Collateral Agent shall be deemed without further action
or formality to have granted to each Assignor all necessary consents relating
to voting rights and shall, if necessary, upon written request of any
Assignor and at the sole cost and expense of the Assignors, from time to time
execute and deliver (or cause to be executed and delivered) to such Assignor
all such instruments as such Assignor may reasonably request in order to permit
such Assignor to exercise the voting and other rights which it is entitled to
exercise pursuant to Section 3.8(a)(i) and to receive the
Distributions which it is authorized to receive and retain pursuant to Section 3.8(a)(ii).


 


(b)           Upon the occurrence and during the
continuance of any Event of Default:


 


(i)            All rights of each Assignor to exercise the voting and
other consensual rights it would otherwise be entitled to exercise pursuant to Section 3.8(a)(i) shall
cease, and all such rights shall thereupon become vested in the Collateral
Agent, which shall thereupon have the sole right to exercise such voting and
other consensual rights.


 


(ii)           All rights of each Assignor to receive Distributions which
it would otherwise be authorized to receive and retain pursuant to Section 3.8(a)(ii) shall
cease and all such rights shall thereupon become vested in the Collateral
Agent, which shall thereupon have the sole right to receive and hold as
Collateral such Distributions.


 


(iii)          Each Assignor shall, at its sole cost and expense, from
time to time execute and deliver to the Collateral Agent appropriate
instruments as the Collateral Agent may request in order to permit the
Collateral Agent to exercise the voting and other rights which it may be
entitled to exercise pursuant to Section 3.8(b)(i) and to receive all
Distributions which it may be entitled to receive under Section 3.8(b)(ii) hereof.


 


(iv)          All Distributions which are received by any Assignor in
violation of Section 3.8(b)(ii)  hereof shall be received in trust
for the benefit of the Collateral Agent, shall be segregated from other funds
of such Assignor and shall immediately be paid over to the Collateral Agent as
Collateral in the same form as so received (with any necessary endorsement).


 


(c)           No Assignor is in default in the
payment of any portion of any mandatory capital contribution, if any, required
to be made under any agreement to which such Assignor is a party relating to
the Pledged Securities pledged by it, and such Assignor is not in violation of
any other provisions of any such agreement to which such Assignor is a party,
or otherwise in default or violation thereunder.  No Securities Collateral pledged by such
Assignor is subject to any


 


12





















 


defense, offset or counterclaim, nor have any of the foregoing been
asserted or alleged against such Assignor by any person with respect thereto,
and as of the Amendment and Restatement Effective Date, there are no
certificates, instruments, documents or other writings (other than the
Organizational Documents and certificates, if any, delivered to the Collateral
Agent) which evidence any Pledged Securities of such Assignor.


 


(d)           In the case of each Assignor which is
an issuer of Securities Collateral, such Assignor agrees to be bound by the
terms of this Agreement relating to the Securities Collateral issued by it and
will comply with such terms insofar as such terms are applicable to it.


 


(e)           In the case of each Assignor which is
a partner in a partnership, limited liability company or other entity, such
Assignor hereby consents to the extent required by the applicable
Organizational Document to the pledge by each other Assignor, pursuant to the
terms hereof, of the Pledged Interests in such partnership, limited liability company
or other entity and, upon the occurrence and during the continuance of an Event
of Default, to the transfer of such Pledged Interests to the Collateral Agent
or its nominee and to the substitution of the Collateral Agent or its nominee
as a substituted partner or member in such partnership, limited liability
company or other entity with all the rights, powers and duties of a general
partner or a limited partner or member, as the case may be.


 


3.9           Further Actions.  Each Assignor will, at its own expense, make,
execute, endorse, acknowledge, file and/or deliver to the Collateral Agent from
time to time such vouchers, invoices, schedules, confirmatory assignments,
conveyances, financing statements, transfer endorsements, powers of attorney,
certificates, reports and other assurances or instruments and take such further
steps, including any and all actions as may be necessary under the Federal
Assignment of Claims Act, relating to its Contracts, Instruments and other
property or rights covered by the security interest hereby granted, as the
Collateral Agent may reasonably request to preserve and protect its security
interest in the Collateral.


 


ARTICLE IV


 


SPECIAL
PROVISIONS CONCERNING TRADEMARKS


 


4.1           Additional Representations and
Warranties.  Each Assignor represents
and warrants that it is the true, lawful, sole and exclusive owner of or
otherwise has the right to use the Marks and Domain Names listed in Schedule 14
to the Perfection Certificate for such Assignor and that said listed Marks and
Domain Names constitute all Marks registered in the United States Patent and
Trademark Office or the equivalent thereof in any foreign country that such
Assignor presently owns and all Domain Names that such Assignor now owns or
uses in connection with its business.  Each Assignor further warrants that it has no
knowledge of any material third party claim that any aspect of such Assignor’s
present or contemplated business operations infringes or will infringe any
rights in any trademark, service mark or trade name.  Each Assignor represents and warrants that it
is the beneficial and record owner of all trademark registrations and
applications and Domain Name registrations listed in Schedule 14 to
the Perfection Certificate for such Assignor and that said registrations are
valid, subsisting and have not been canceled and that such Assignor is not
aware of any material third party claim that any of said registrations is
invalid or unenforceable, or that there is any reason that any of said


 


13





















 


applications will not pass to
registration.  Each Assignor hereby
grants to the Collateral Agent an absolute power of attorney to sign, upon the
occurrence and during the continuance of an Event of Default, any document
which may be required by the United States Patent and Trademark Office or
secretary of state or equivalent governmental agency of any State of the United
States or any foreign jurisdiction in order to effect an absolute assignment of
all right, title and interest in each Mark and/or Domain Name, and record the
same.


 


4.2           Licenses and Assignments.  Each Assignor hereby agrees not to divest
itself of any right under any Mark other than in the ordinary course of
business absent prior written approval of the Collateral Agent, except as
otherwise permitted by the Secured Debt Agreements.


 


4.3           Infringements.  Each Assignor agrees, promptly upon learning
thereof, to notify the Collateral Agent in writing of the name and address of,
and to furnish such pertinent information that may be available with respect
to, (i) any party who such Assignor believes is infringing or diluting or
otherwise violating in any material respect any of such Assignor’s rights in
and to any material Mark or Domain Name, or (ii) with respect to any party
claiming that such Assignor’s use of any material Mark or Domain Name violates
in any material respect any property right of that party.  Each Assignor further agrees, unless
otherwise agreed to in writing by the Collateral Agent, to prosecute, in a
manner consistent with its past practice and in accordance with reasonable
business practices, any Person infringing any material Mark or Domain Name
owned by such Assignor and material to the operation of the business.


 


4.4           Preservation of Marks and Domain
Names.  Each Assignor agrees to use
its material Marks and Domain Names in interstate commerce during the time in
which this Agreement is in effect, and to take all such other actions as are
reasonably necessary to preserve such Marks and Domain Names as valid and
subsisting trademarks or service marks under the laws of the United States or
the relevant foreign jurisdiction; provided, that no Assignor shall be
obligated to preserve any Mark or Domain Name in the event such Assignor
determines, in its reasonably business judgment, that the preservation of such
Mark is no longer necessary in the conduct of its business.


 


4.5           Maintenance of Registration.  Each Assignor shall, at its own expense and
in accordance with reasonable business practices, process all documents
reasonable to maintain all material Marks and/or Domain Name registrations,
including but not limited to affidavits of continued use and applications for
renewals of registration in the United States Patent and Trademark Office or
equivalent governmental agency in any foreign jurisdiction for all of its registered
material Marks, and shall pay all fees and disbursements in connection
therewith and shall not abandon any such filing of affidavit of use or any such
application of renewal prior to the exhaustion of all administrative and
judicial remedies without prior written consent of the Collateral Agent; provided,
that no Assignor shall be obligated to maintain any Mark or Domain Name or
prosecute any such application for registration in the event that such Assignor
determines, in its reasonable business judgment, that such application is no
longer necessary in the conduct of its business.


 


4.6           Future Registered Marks and Domain
Names.  If any registration for any
Mark issues hereafter to any Assignor as a result of any application now or
hereafter pending


 


14





















 


before the United States Patent and Trademark
Office or any Domain Name is registered by an Assignor, within 30 days of
receipt of the respective certificate or similar indicia of ownership, such
Assignor shall deliver to the Collateral Agent a copy of such certificate or
similar indicia of ownership, and a grant for security in such Mark and/or
Domain Name, to the Collateral Agent and at the expense of such Assignor,
confirming the grant of a security interest in such Mark and/or Domain Name to
the Collateral Agent hereunder, the form of such grant to be substantially in
the form of Annex A hereto or in such other form as may be reasonably satisfactory
to the Collateral Agent.


 


4.7           Remedies.  If an Event of Default shall occur and be
continuing, the Collateral Agent may (or, at the request of the Required
Secured Creditors, shall), by written notice to the relevant Assignor, take any
or all of the following actions:  (i) declare
the entire right, title and interest of such Assignor in and to each of the
Marks and Domain Names, together with all trademark rights and rights of
protection to the same and the goodwill of such Assignor’s business symbolized
by said Marks and Domain Names and the right to recover for past infringements
thereof, vested in the Collateral Agent for the benefit of the Secured
Creditors, in which event such rights, title and interest shall immediately
vest in the Collateral Agent for the benefit of the Secured Creditors, and the
Collateral Agent shall be entitled to exercise the power of attorney referred
to in Section 4.1 hereof to execute, cause to be acknowledged and
notarized and to record an absolute assignment with the applicable agency for
the purpose of exercising the Collateral Agent’s right to dispose of the Marks
and Domain Names in accordance with this Agreement and applicable law; (ii) take
and use or sell the Marks and the Domain Names and the goodwill of such
Assignor’s business symbolized by the Marks and the Domain Names and the right
to carry on the business and use the assets of such Assignor in connection with
which the Marks and the Domain Names have been used; and (iii) direct such
Assignor to refrain, in which event such Assignor shall refrain, from using the
Marks and Domain Names in any manner whatsoever, directly or indirectly, and
such Assignor shall execute such further documents that the Collateral Agent
may request to further confirm this and to transfer ownership of the Marks and
Domain Names and registrations and any pending trademark applications therefor
in the United States Patent and Trademark Office or the applicable Domain Name
registrar or any equivalent government agency or office in any foreign jurisdiction
to the Collateral Agent.


 


ARTICLE V


 


SPECIAL
PROVISIONS CONCERNING PATENTS,

COPYRIGHTS AND TRADE SECRETS


 


5.1           Additional Representations and
Warranties.  Each Assignor represents
and warrants that it is the true and lawful exclusive owner of or otherwise has
the right to use all (i) Trade Secret Rights of such Assignor, (ii) rights
in the Patents of such Assignor listed in Schedule 14 to the
Perfection Certificate for such Assignor and that said Patents constitute all
the patents and applications for patents that such Assignor now owns and (iii) rights
in the Copyrights of such Assignor listed in Schedule 14 to the
Perfection Certificate for such Assignor, and that such Copyrights include all
registrations of copyrights and applications for copyright registrations that
such Assignor now owns.  Each Assignor
further represents and warrants that it has the right to use and practice under
all Patents and Copyrights that it owns and has the exclusive right


 


15





















 


to exclude others from using or practicing
under any Patents it owns.  Each Assignor
further warrants that it has no knowledge of any material third party claim
that any aspect of such Assignor’s present or contemplated business operations
infringes or will infringe any rights in any Patent or Copyright or that such
Assignor has misappropriated any Trade Secrets, Trade Secret Rights or other
proprietary information.  Each Assignor
hereby grants to the Collateral Agent an absolute power of attorney to sign,
upon the occurrence and during the continuance of any Event of Default, any
document which may be required by the United States Patent and Trademark Office
or equivalent governmental agency in any foreign jurisdiction or the United
States Copyright Office or equivalent governmental agency in any foreign
jurisdiction in order to effect an absolute assignment of all right, title and
interest in each Patent and Copyright of such Assignor, as the case may be, and
to record the same.


 


5.2           Licenses and Assignments.  Each Assignor hereby agrees not to
divest-itself of any right under any Patent or Copyright absent prior written
approval of the Collateral Agent, except as otherwise permitted by the Secured
Debt Agreements.


 


5.3           Infringements.  Each Assignor agrees, promptly upon learning
thereof, to furnish the Collateral Agent in writing with all pertinent
information available to such Assignor with respect to any infringement,
contributing infringement or active inducement to infringe any of such Assignor’s
rights in any material Patent or material Copyright or to any claim that the
practice of any material Patent or the use of any material Copyright of such
Assignor violates any property right of a third party, or with respect to any
misappropriation of any material Trade Secret Right of such Assignor or any
claim that practice of any material Trade Secret Right of such Assignor
violates any property right of a third party. 
Each Assignor further agrees, absent written consent of the Collateral
Agent to the contrary, diligently to prosecute, in accordance with reasonable
business practices, any Person infringing any material Patent or material
Copyright of such Assignor or any Person misappropriating any material Trade
Secret Right of such Assignor.


 


5.4           Maintenance of Patents and
Copyrights.  At its own expense, each
Assignor shall make timely payment of all post-issuance fees required pursuant
to 35 U.S.C. § 41 and any foreign equivalent thereof to maintain in force
rights under each of its material Patents, and to apply as permitted pursuant
to applicable law for any renewal of each of its material Copyrights, in any
case absent prior written consent of the Collateral Agent; provided,
that no Assignor shall be obligated to maintain any Patent or Copyright in the
event such Assignor determines, in its reasonable business judgment, that the
maintenance of such Patent or Copyright is no longer necessary to the conduct
of its business.


 


5.5           Prosecution of Patent or Copyright
Applications.  At its own expense,
each Assignor shall diligently prosecute, in accordance with reasonable
business practices and subject to Section 5.4, all of its material
applications for Patents listed in Schedule 14 to the Perfection
Certificate and for Copyrights listed in Schedule 14 to the
Perfection Certificate and shall not abandon any such application prior to
exhaustion of all administrative and judicial remedies, absent written consent
of the Collateral Agent; provided, that no Assignor shall be obligated
to maintain any Patent or Copyright in the event such Assignor determines, in
its reasonable


 


16





















 


business judgment, that the maintenance of
such Patent or Copyright is no longer necessary to the conduct of its business.


 


5.6           Other Patents and Copyrights.  Within 30 days of the acquisition or issuance
of a United States Patent or of a Copyright registration, or of filing of an
application for a United States Patent or Copyright registration, the relevant
Assignor shall deliver to the Collateral Agent a copy of said Patent or
Copyright or certificate of registration thereof, or application therefor, as
the case may be, with a grant of security interest in such Patent or Copyright,
as the case may be, to the Collateral Agent and at the expense of such
Assignor, confirming the grant of a security interest in such Patent or
Copyright, the form of such grant of security interest to be substantially in
the form of Annex B or C hereto, as applicable, or in such other form as may be
satisfactory to the Collateral Agent; provided, that no Assignor shall
be obligated to prosecute any application in the event such Assignor
determines, in its reasonable business judgment, that such application is no
longer necessary to the conduct of its business.


 


5.7           Remedies.  If an Event of Default shall occur and be
continuing, the Collateral Agent may (or, at the request of the Required
Secured Creditors, shall) by written notice to the relevant Assignor, take any
or all of the following actions:  (i) declare
the entire right, title, and interest of such Assignor in each of the Patents
and Copyrights vested in the Collateral Agent for the benefit of the Secured
Creditors, in which event such right, title, and interest shall immediately
vest in the Collateral Agent for the benefit of the Secured Creditors, and the
Collateral Agent shall be entitled to exercise the power of attorney referred
to in Section 5.1 hereof to execute, cause to be acknowledged and
notarized and to record an absolute assignment with the applicable agency for
the purpose of exercising the Collateral Agent’s right to dispose of the
Patents and Copyrights in accordance with this Agreement and applicable law; (ii) take
and use, practice or sell the Patents, Copyrights and Trade Secret Rights; and (iii) direct
such Assignor to refrain, in which event such Assignor shall refrain, from
practicing the Patents and using the Copyrights and/or Trade Secret Rights
directly or indirectly, and such Assignor shall execute such other and further
documents as the Collateral Agent may request further to confirm this and to
transfer ownership of the Patents, Copyrights and Trade Secret Rights to the
Collateral Agent for the benefit of the Secured Creditors.


 


ARTICLE VI


 


PROVISIONS
CONCERNING ALL COLLATERAL


 


6.1           Protection of Collateral Agent’s
Security.  Except as otherwise
permitted by the Secured Debt Agreements, no Assignor will do anything to
impair the rights of the Collateral Agent in the Collateral.  Each Assignor will at all times keep its
Inventory and Equipment insured in favor of the Collateral Agent as an
additional insured, loss payee and mortgagee, at such Assignor’s own expense to
the extent and in the manner provided in the Secured Debt Agreements.  If any Assignor shall fail to insure its Inventory
and Equipment in accordance with the terms of the respective Secured Debt
Agreements, or if any Assignor shall fail to so endorse and deposit all
policies or certificates with respect thereto, the Collateral Agent shall have
the right upon provision of notice to the Parent (but shall be under no
obligation) to procure such insurance and such Assignor agrees to promptly
reimburse the Collateral Agent for all costs and


 


17





















 


expenses of procuring such insurance.  Except as otherwise permitted to be retained
or expended by the relevant Assignor pursuant to the Credit Agreement (or,
after the First Lien Obligations Termination Date, any other Secured Debt
Agreement), the Collateral Agent shall, at the time such proceeds of such
insurance are distributed to the Secured Creditors, apply such proceeds in
accordance with the Credit Agreement (or, after the First Lien Obligations
Termination Date, in accordance with the instructions of the Required Secured
Creditors), or after the Obligations have been accelerated or otherwise become
due and payable, in accordance with Section 7.5 hereof.  Each Assignor assumes all liability and
responsibility in connection with the Collateral acquired by it and the
liability of such Assignor to pay the Obligations shall in no way be affected
or diminished by reason of the fact that such Collateral may be lost, destroyed,
stolen, damaged or for any reason whatsoever unavailable to such Assignor.


 


6.2           Warehouse Receipts Non-Negotiable.  Each Assignor agrees that if any warehouse
receipt or receipt in the nature of a warehouse receipt is issued with respect
to any of its Inventory, such warehouse receipt or receipt in the nature
thereof shall not be “negotiable” (as such term is used in Section 7-104
of the Uniform Commercial Code as in effect in any relevant jurisdiction or
under other relevant law).


 


6.3           Further Actions.  Each Assignor will, at its own expense, make,
execute, endorse, acknowledge, file and/or deliver to the Collateral Agent from
time to time such lists, descriptions and designations of its Collateral,
warehouse receipts, receipts in the nature of warehouse receipts, bills of
lading, documents of title, vouchers, invoices, schedules, confirmatory
assignments, conveyances, financing statements, transfer endorsements, powers
of attorney, certificates, reports and other assurances or instruments and take
such further steps relating to the Collateral and other property or rights
covered by the security interest hereby granted which the Collateral Agent
deems reasonably appropriate or advisable to perfect, preserve or protect its security
interest in the Collateral.


 


6.4           Financing Statements.  Each Assignor agrees to deliver to the
Collateral Agent such financing statements, in form acceptable to the
Collateral Agent, as the Collateral Agent may from time to time reasonably
request or as are reasonably necessary or desirable in the reasonable opinion
of the Collateral Agent to establish and maintain a valid, enforceable, first
priority perfected security interest, as well as a second priority security
interest, in the Collateral (subject, in each case, to the Permitted Liens) as
provided herein and the other rights and security contemplated hereby, all in
accordance with the Uniform Commercial Code as enacted in any and all relevant
jurisdictions or any other relevant law. 
Each Assignor will pay any applicable filing fees, recordation taxes and
related expenses relating to its Collateral. 
Each Assignor hereby authorizes the Collateral Agent to file any such
financing statements (including, without limitation, financing statements which
list the Collateral specifically and/or “all assets” as collateral with
appropriate exceptions for Excluded Collateral) without the signature of such
Assignor where permitted by law.


 


6.5           Additional Information.  Each Assignor will, at its own expense, from
time to time upon the reasonable request of the Collateral Agent, promptly (and
in any event within 10 days after its receipt of the respective request)
furnish to the Collateral Agent such information with respect to the Collateral
(including the identity of the Collateral or such


 


18





















 


components thereof as may have been requested
by the Collateral Agent, the value and location of such Collateral, etc.) as
may be reasonably requested by the Collateral Agent.


 


6.6           Power of Attorney.  Each Assignor hereby appoints the Collateral
Agent its attorney-in-fact, with full power and authority in the place and
stead of such Assignor and in the name of such Assignor, or otherwise, from
time to time in the Collateral Agent’s discretion to take any action and to
execute any instrument consistent with the terms of the Credit Agreement, this
Agreement and the other Security Documents which the Collateral Agent may deem
necessary or advisable to accomplish the purposes hereof (but the Collateral
Agent shall not be obligated to and shall have no liability to such Assignor or
any third party for failure to so do or take action).  The foregoing grant of authority is a power
of attorney coupled with an interest and such appointment shall be
irrevocable for the term hereof.  Each
Assignor hereby ratifies all that such attorney shall lawfully do or cause to
be done in furtherance of such power of attorney. 


 


ARTICLE VII


 


REMEDIES UPON
OCCURRENCE OF EVENT OF DEFAULT


 


7.1           Remedies; Obtaining the Collateral
upon Default.  Each Assignor agrees
that, if any Event of Default shall have occurred and be continuing, then and
in every such case, the Collateral Agent, in addition to any rights now or
hereafter existing under applicable law and under the other provisions of this
Agreement, shall have all rights as a secured creditor under the Uniform
Commercial Code in all relevant jurisdictions and such additional rights and
remedies to which a secured creditor is entitled under the laws in effect in
all relevant jurisdictions and may (or, upon the request of the Required
Secured Creditors, shall) also:


 


(i)            personally,
or by agents or attorneys, immediately take possession of the Collateral or any
part thereof, from such Assignor or any other Person who then has possession of
any part thereof with or without notice or process of law, and for that purpose
may enter upon such Assignor’s premises where any of the Collateral is located
and remove the same and use in connection with such removal any and all
services, supplies, aids and other facilities of such Assignor;


 


(ii)           instruct
the obligor or obligors on any agreement, instrument or other obligation
(including, without limitation, the Contracts) constituting Collateral to make
any payment required by the terms of such agreement, instrument or other
obligation directly to the Collateral Agent and may exercise any and all
remedies of such Assignor in respect of such Collateral;


 


(iii)          instruct
all banks, Securities Intermediaries and Commodity Intermediaries which have
entered into control agreements with the Collateral Agent to transfer all
monies, securities and instruments held by such persons to the Cash Collateral
Account and withdraw all monies, securities and instruments in the Cash
Collateral Account for application to the Obligations in accordance with Section 7.5
hereof;


 


(iv)          sell,
assign or otherwise liquidate, or direct such Assignor to sell, assign or
otherwise liquidate, any or all of the Collateral or any part thereof in
accordance with


 


19





















 


Section 7.2 hereof, or direct the relevant Assignor to sell,
assign or otherwise liquidate any or all of the Collateral or any part thereof,
and, in each case, take possession of the proceeds of any such sale or
liquidation;


 


(v)           take
possession of the Collateral or any part thereof, by directing the relevant
Assignor in writing to deliver the same to the Collateral Agent at any place or
places designated by the Collateral Agent, in which event such Assignor shall
at its own expense:


 


(x)
forthwith cause the same to be moved to the place or places so designated by
the Collateral Agent and there delivered to the Collateral Agent;


 


(y)
store and keep any Collateral so delivered to the Collateral Agent at such
place or places pending further action by the Collateral Agent as provided in Section 7.2
hereof; and


 


(z)
while the Collateral shall be so stored and kept, provide such guards, other
security and maintenance services as shall be necessary to protect the same and
to preserve and maintain it in good condition;


 


(vi)          license
or sublicense, whether on an exclusive or nonexclusive basis, any Marks, Domain
Names, Patents or Copyrights included in the Collateral for such term and on
such conditions and in such manner as the Collateral Agent shall in its sole
judgment determine;


 


(vii)         apply
any monies constituting Collateral or proceeds thereof in accordance with Section 7.5
hereof; and


 


(viii)        take
any other action as specified in clauses (i) through (v), inclusive, of Section 9-607(a) of
the New York Uniform Commercial Code;


 


it being
understood that each Assignor’s obligation so to deliver the Collateral is of
the essence of this Agreement and that, accordingly, upon application to a
court of equity having jurisdiction, the Collateral Agent shall be entitled to
a decree requiring specific performance by such Assignor of said obligation.  By accepting the benefits of this Agreement
and each other Security Document, the Secured Creditors expressly acknowledge
and agree that this Agreement and each other Security Document may be enforced
only by the action of the Collateral Agent acting upon the instructions of the
Required Secured Creditors and that no other Secured Creditor shall have any
right individually to seek to enforce or to enforce this Agreement or any other
Security Document or to realize upon the security to be granted hereby or
thereby, it being understood and agreed that such rights and remedies shall be
exercised exclusively by the Collateral Agent for the benefit of the Secured
Creditors upon the terms of this Agreement (including Annex D hereto) and the
other Security Documents.


 


7.2           Remedies; Disposition of the
Collateral.  Any Collateral
repossessed by the Collateral Agent under or pursuant to Section 7.1
hereof and any other Collateral, whether or not so repossessed by the
Collateral Agent, may (or, at the request of the Required Secured


 


20





















 


Creditors, shall), during the continuance of
an Event of Default, be sold, assigned, leased or otherwise disposed of under
one or more contracts or as an entirety, and without the necessity of gathering
at the place of sale the property to be sold, and in general in such manner, at
such time or times, at such place or places and on such terms as the Collateral
Agent may, in compliance with any mandatory requirements of applicable law,
determine to be commercially reasonable. 
Any of the Collateral may, during the continuance of an Event of
Default, be sold, leased or otherwise disposed of, in one or more parcels at
public or private sale in the condition in which the same existed when taken by
the Collateral Agent or after any overhaul or repair at the expense of the
relevant Assignor for cash, on credit or for future delivery, and at such price
or prices and upon such other terms which the Collateral Agent shall determine
to be commercially reasonable.  The Collateral
Agent may, without notice or publication, adjourn any public or private
disposition or cause the same to be adjourned from time to time by announcement
at the time and place fixed for the disposition, and such disposition may be
made at any time or place to which the disposition may be so adjourned.  To the extent permitted by any such
requirement of law, the Collateral Agent on behalf of the Secured Creditors (or
certain of them) may bid for and become the purchaser of the Collateral or any
item thereof offered for sale in accordance with this Section without
accountability to the relevant Assignor (except to the extent of surplus money
received as provided in Section 7.5). 
If, under mandatory requirements of applicable law, the Collateral Agent
shall be required to make disposition of the Collateral within a period of time
which does not permit the giving of notice to the relevant Assignor as
hereinabove specified, the Collateral Agent need give such Assignor only such
notice of disposition as shall be reasonably practicable in view of such
mandatory requirements of applicable law. 
Each Assignor agrees to do or cause to be done all such other acts and
things as may be reasonably necessary to make such sale or sales of all or any
portion of the Collateral of such Assignor valid and binding and in compliance
with any and all applicable laws, regulations, orders, writs, injunctions,
decrees or awards of any and all courts, arbitrators or governmental
instrumentalities, domestic or foreign, having jurisdiction over any such sale
or sales, all at such Assignor’s expense. 
Each Assignor acknowledges and agrees that, to the extent notice of sale
or other disposition of Collateral shall be required by law, ten (10) days’
prior notice to such Assignor of the time and place of any public sale or of
the time after which any private sale or other intended disposition is to take
place shall be commercially reasonable notification of such matters.  No notification need be given to any Assignor
if it has signed, after the occurrence of an Event of Default, a statement
renouncing or modifying any right to notification of sale or other intended
disposition.


 


7.3           Certain Sales of Pledged
Collateral.


 


(i)            Each Assignor recognizes that, by
reason of certain prohibitions contained in law, rules, regulations or orders
of any Government Authority, the Collateral Agent may be compelled, with
respect to any sale of all or any part of the Collateral, to limit purchasers
to those who meet the requirements of such Governmental Authority.  Each Assignor acknowledges that any such
sales may be at prices and on terms less favorable to the Collateral Agent than
those obtainable through a public sale without such restrictions, and,
notwithstanding such circumstances, agrees that any such restricted sale shall
be deemed to have been made in a commercially reasonable manner and that,
except as may be required by applicable law, the Collateral Agent shall have no
obligation to engage in public sales.


 


21





















 


(ii)           Each Assignor recognizes that, by
reason of certain prohibitions contained in the Securities Act, and applicable
state securities laws, the Collateral Agent may be compelled, with respect to
any sale of all or any part of the Securities Collateral and Investment
Property, to limit purchasers to persons who will agree, among other things, to
acquire such Securities Collateral or Investment Property for their own
account, for investment and not with a view to the distribution or resale thereof.  Each Assignor acknowledges that any such
private sales may be at prices and on terms less favorable to the Collateral
Agent than those obtainable through a public sale without such restrictions
(including a public offering made pursuant to a registration statement under
the Securities Act), and, notwithstanding such circumstances, agrees that any
such private sale shall be deemed to have been made in a commercially
reasonable manner and that the Collateral Agent shall have not obligation to
engage in public sales and no obligation to delay the sale of any Securities
Collateral or Investment Property for the period of time necessary to permit
the issuer thereof to register it for a form of public sale requiring registration
under the Securities Act or under applicable state securities laws, even if
such issuer would agree to do so.


 


(iii)          Notwithstanding the foregoing, each
Assignor shall, upon the occurrence and during the continuance of any Event of
Default, at the reasonable request of the Collateral Agent (acting in its own
discretion or on behalf of the Required Secured Creditors), for the benefit of
the Collateral Agent, cause any registration, qualification under or compliance
with any Federal or state securities law or laws to be effected with respect to
all or any part of the Securities Collateral as soon as practicable and at the
sale cost and expense of the Assignors. 
Each Assignor will use its commercially reasonable efforts to cause such
registration to be effected (and be kept effective) and will use its
commercially reasonable efforts to cause such qualification and compliance to
be effected (and be kept effective) as may be so requested and as would permit
or facilitate the sale and distribution of such Securities Collateral including
registration under the Securities Act (or any similar statute then in effect),
appropriate qualifications under applicable blue sky or other state securities
laws and appropriate compliance with all other requirements of any Governmental
Authority.  Each Assignor shall use its
commercially reasonable efforts to cause the Collateral Agent to be kept
advised in writing as to the progress of each such registration, qualification
or compliance and as to the completion thereof, shall furnish to the Collateral
Agent such number of prospectuses, offering circulars or other documents
incident thereto as the Collateral Agent from time to time may request, and
shall indemnify and shall cause the issuer of the Securities Collateral to
indemnify the Collateral Agent and all others participating in the distribution
of such Securities Collateral against all claims, losses, damages and
liabilities caused by any untrue statement (or alleged untrue statement) of a
material fact contained therein (or in any related registration statement,
notification or the like) or by any omission (or alleged omission) to state
therein (or in any related registration statement, notification or the like) a
material fact required to be stated therein or necessary to make the statements
therein not misleading.


 


(iv)          If the Collateral Agent determines (or
is required by the Required Secured Creditors) to exercise its right to sell
any or all of the Securities Collateral or Investment Property, upon written
request, the applicable Assignor shall from time to time furnish to the
Collateral Agent all such information as the Collateral Agent may request in
order to determine the number of securities included in the Securities
Collateral or Investment Property which may be


 


22





















 


sold by the Collateral Agent as exempt transactions under the
Securities Act and the rules of the Securities and Exchange Commission
thereunder, as the same are form time to time in effect.


 


(v)           Each Assignor further agrees that a
breach of any of the covenants contained in this Section 7.3 will
cause irreparable injury to the Collateral Agent and other Secured Parties,
that the Collateral Agent and the other Secured Parties have no adequate remedy
at law in respect of such breach and, as a consequence, that each and every
covenant contained in this Section 7.3 shall be specifically
enforceable against such Assignor, and such Assignor hereby waives and agrees
not to assert any defenses against an action for specific performance of such
covenants except for a defense that no Event of Default has occurred and is
continuing.


 


7.4           Waiver of Claims.  Except as otherwise provided in this
Agreement, EACH ASSIGNOR HEREBY WAIVES, TO THE EXTENT PERMITTED BY APPLICABLE
LAW, NOTICE AND JUDICIAL HEARING IN CONNECTION WITH THE COLLATERAL AGENT’S
TAKING POSSESSION OR THE COLLATERAL AGENT’S DISPOSITION OF ANY OF THE
COLLATERAL, INCLUDING, WITHOUT LIMITATION, ANY AND ALL PRIOR NOTICE AND HEARING
FOR ANY PREJUDGMENT REMEDY OR REMEDIES AND ANY SUCH RIGHT WHICH SUCH ASSIGNOR
WOULD OTHERWISE HAVE UNDER THE CONSTITUTION OR ANY STATUTE OF THE UNITED STATES
OR OF ANY STATE, and such Assignor hereby further waives, to the extent
permitted by law:


 


(i)            all
damages occasioned by such taking of possession or any such disposition except
any damages which are the direct result of the Collateral Agent’s gross
negligence or willful misconduct (as determined by a court of competent
jurisdiction in a final and non-appealable decision);


 


(ii)           all
other requirements as to the time, place and terms of sale or other
requirements with respect to the enforcement of the Collateral Agent’s rights
hereunder; and


 


(iii)          all
rights of redemption, appraisement, valuation, stay, extension or moratorium
now or hereafter in force under any applicable law in order to prevent or delay
the enforcement of this Agreement or the absolute sale of the Collateral or any
portion thereof, and each Assignor, for itself and all who may claim under it,
insofar as it or they now or hereafter lawfully may, hereby waives the benefit
of all such laws.


 


Any sale of,
or the grant of options to purchase, or any other realization upon, any
Collateral hereunder shall operate to divest all right, title, interest, claim
and demand, either at law or in equity, of the relevant Assignor therein and
thereto, and shall be a perpetual bar both at law and in equity against such
Assignor and against any and all Persons claiming or attempting to claim the
Collateral so sold, optioned or realized upon, or any part thereof, from, through
and under such Assignor.


 


7.5           Application of Proceeds.  (a)  All moneys collected by the
Collateral Agent upon any sale or other disposition of any Collateral of any
Assignor pursuant to the enforcement of this Agreement or the exercise of any
of the remedial provisions hereof (or, if any other Security Document requires
proceeds of “collateral” thereunder to be applied in accordance


 


23





















 


with the terms
of this Agreement, by such “collateral agent” thereunder pursuant to the enforcement
of such Security Document or the exercise of the remedial provisions thereof),
together with all other moneys received by the Collateral Agent hereunder (or
such “collateral agent” under such other Security Documents) (including all
monies received in respect of post-petition interest) as a result of any such enforcement
or the exercise of any such remedial provisions or as a result of any
distribution of any Collateral of any Assignor (or “collateral” under any other
Security Document, as the case may be) upon the bankruptcy, arrangement,
receivership, assignment for the benefit of creditors or any other action or
proceeding involving the readjustment of the obligations and indebtedness of
any Assignor, or the application of any Collateral (or “collateral” under any
other Security Document, as the case may be) to the payment thereof or any
distribution of Collateral (or “collateral” under any other Security Document,
as the case may be) upon the liquidation or dissolution of any Assignor, or the
winding up of the assets or business of any Assignor or under any Title
Insurance Policies, shall be applied as follows (subject to the prior
application of proceeds of certain Collateral in respect of Deposit Accounts as
contemplated by the last sentence of Section 10.2(j) of the Credit Agreement,
to which application each of the Secured Creditors hereby consents):


 


(i)            first, to the payment of all Obligations of
such Assignor owing to the Collateral Agent of the type described in clauses
(iii), (iv) and (v) of the definition of “Obligations”;


 


(ii)           second, to the extent proceeds remain after
the application pursuant to the preceding clause (i), an amount equal to the outstanding
First Lien Obligations (including, without limitation, all interest that
accrues after the commencement of any case, proceeding or other action relating
to the bankruptcy, insolvency, reorganization or similar proceeding of any
Assignor at the rate provided for in the respective documentation, whether or
not a claim for post-petition interest is allowed in any such case, proceeding
or other action), together with cash collateral for all Letters of Credit (or
any other extension of credit that may be cash collateralized under the Credit
Agreement) in such amounts or at such percentages of face value as may be
required by the Credit Agreement, of such Assignor shall be paid to the Bank
Creditors as provided in Section 10.2(j) (or, from and after the Discharge
of LC Obligations, Section 10.2(i)) of the Credit Agreement);


 


(iii)          third, to
the extent proceeds remain after the application pursuant to the preceding
clauses (i) and (ii), an amount equal to the outstanding Trustee
Obligations of such Assignor shall be paid to the Senior Second Lien Notes Indenture
Trustee;


 


(iv)          fourth, to the extent proceeds remain after the application pursuant
to the preceding clauses (i) through (iii), an amount equal to the
outstanding Senior Second Lien Notes Obligations (including, without
limitation, all interest that accrues after the commencement of any case,
proceeding or other action relating to the bankruptcy, insolvency,
reorganization or similar proceeding of any Assignor at the rate provided for
in the respective documentation, whether or not a claim for post-petition
interest is allowed in any such case, proceeding or other action) of such
Assignor shall be paid to the Senior Second Lien Notes Indenture Trustee as
provided in Section 7.5(e) hereof (for the benefit


 


24





















 


of the Senior
Second Lien Notes Indenture Trustee and the other Senior Second Lien Notes
Creditors), with each such Senior Second Lien Notes Creditor to receive an
amount equal to its outstanding Senior Second Lien Notes Obligations of such Assignor
or, if the proceeds are insufficient to pay in full all such Senior Second Lien
Notes Obligations of such Assignor, the portion of the amount remaining to be
distributed to which such Senior Second Lien Notes Creditor is entitled
pursuant to the terms of the Senior Second Lien Notes Indenture; and


 


(v)           fifth, to the
extent proceeds remain after the application pursuant to the preceding clauses (i) through
(iv), inclusive, and following the termination of this Agreement pursuant to Section 10.8(a) hereof,
to the relevant Assignor or to whoever may be lawfully entitled to receive such
surplus.


 


(b)           [Reserved].


 


(c)           Except as set forth in Section 7.5(a) hereof,
all payments required to be made to any Secured Creditor hereunder by the
Collateral Agent shall be made (x) if to the Bank Creditors, to the LC Facility
Collateral Agent under the Credit Agreement for the account of (and for
distribution to) the Bank Creditors and (y) if to the Senior Second Lien Notes
Creditors, to the Senior Second Lien Notes Indenture Trustee under the Senior
Second Lien Notes Indenture for the account of (and for distribution to) the
Senior Second Lien Notes Indenture Trustee and the Senior Second Lien
Noteholders in accordance with the requirements of the Senior Second Lien Notes
Indenture.


 


(d)           For purposes of making payments in
accordance with this Section 7.5, the Collateral Agent shall be entitled
to rely upon (i) the LC Facility Collateral Agent under the Credit
Agreement and (ii) the Senior Second Lien Notes Indenture Trustee under
the Senior Second Lien Notes Indenture for a determination (which each
Authorized Representative for any Secured Creditor and the Secured Creditors
agree to provide upon request of the Collateral Agent) of the outstanding First
Lien Obligations and Senior Second Lien Notes Obligations owed to the Bank
Creditors or the Senior Second Lien Notes Creditors, as the case may be.


 


(e)           Subject to Section 10.12, it is
understood and agreed that each of the Assignors shall remain jointly and
severally liable to the relevant Secured Creditors to the extent of any
deficiency between (x) the amount of the proceeds of the Collateral received by
such Secured Creditors hereunder and (y) the aggregate amount of the Obligations.


 


(f)            Notwithstanding anything to the
contrary contained in this Agreement or in any other Security Document, the
Senior Second Lien Notes Creditors, by accepting the benefits of this
Agreement, hereby expressly acknowledge and agree that they shall not be
entitled to receive any application pursuant to Section 7.5(a) hereof
in respect of any Second Lien Excluded Collateral.


 


7.6           Remedies
Cumulative.  Each and every right,
power and remedy hereby specifically given to the Collateral Agent shall be in
addition to every other right, power and remedy specifically given under this
Agreement or any other Secured Debt Agreement now or hereafter existing at law,
in equity or by statute and each and every right, power and remedy


 


25





















 


whether
specifically herein given or otherwise existing may, subject to the last
sentence of Section 7.1 hereof, be exercised from time to time or
simultaneously and as often and in such order as may be deemed expedient by the
Collateral Agent.  All such rights,
powers and remedies shall be cumulative and the exercise or the beginning of
the exercise of one shall not be deemed a waiver of the right to exercise any
other or others.  No delay or omission of
the Collateral Agent in the exercise of any such right, power or remedy and no
renewal or extension of any of the Obligations shall impair any such right,
power or remedy or shall be construed to be a waiver of any Default or Event of
Default or an acquiescence therein.  No
notice to or demand on any Assignor in any case shall entitle it to any other
or further notice or demand in similar or other circumstances or constitute a
waiver of any of the rights of the Collateral Agent to any other or further
action in any circumstances without notice or demand.  In the event that the Collateral Agent shall
bring any suit to enforce any of its rights hereunder and shall be entitled to
judgment, then in such suit the Collateral Agent may recover expenses,
including reasonable attorneys’ fees, and the amounts thereof shall be included
in such judgment.


 


7.7           Discontinuance
of Proceedings.  In case the
Collateral Agent shall have instituted any proceeding to enforce any right,
power or remedy under this Agreement or under any other Security Document by
foreclosure, sale, entry or otherwise, and such proceeding shall have been
discontinued or abandoned for any reason or shall have been determined
adversely to the Collateral Agent, then and in every such case the relevant
Assignor, the Collateral Agent and each holder of any of the Obligations shall
be restored to their former positions and rights hereunder with respect to the
Collateral, subject to the security interest created under this Agreement and
under the other Security Documents, and all rights, remedies and powers of the
Collateral Agent shall continue as if no such proceeding had been instituted.


 


ARTICLE VIII


 


INDEMNITY


 


8.1           Indemnity.  (a)  Each Assignor jointly and severally
agrees to indemnify, reimburse and hold the Collateral Agent, each other
Secured Creditor that is an indemnitor under Section 6 of Annex D hereto,
and their respective successors, assigns, employees, officers, directors,
affiliates, agents and servants (hereinafter in this Section 8.1 referred
to individually as an “Indemnitee,” and, collectively, as “Indemnitees”)
harmless from any and all liabilities, obligations, losses, damages, injuries,
penalties, claims, demands, actions, suits, judgments and any and all costs,
expenses or disbursements (including reasonable attorneys’ fees and expenses)
(for the purposes of this Section 8.1 the foregoing are collectively
called “expenses”) of whatsoever kind and nature imposed on, asserted
against or incurred by any of the Indemnitees in any way relating to or arising
out of this Agreement, any other Secured Debt Agreement or any other document
executed in connection herewith or therewith or in any other way connected with
the administration of the transactions contemplated hereby or thereby or the
enforcement of any of the terms of, or the preservation of any rights under,
any thereof, or in any way relating to or arising out of the manufacture,
ownership, ordering, purchase, delivery, control, acceptance, lease, financing,
possession, operation, condition, sale, return or other disposition or use of
the Collateral (including, without limitation, latent or other defects, whether
or not discoverable), the violation by an Assignor of the laws of any country,
state or other governmental body or unit, any tort


 


26





















 


(including,
without limitation, claims arising or imposed under the doctrine of strict
liability, or for or on account of injury to or the death of any Person
(including any Indemnitee), or property damage), or contract claim; provided
that no Indemnitee shall be indemnified pursuant to this Section 8.1(a) for
expenses, losses, damages or liabilities to the extent caused by the gross
negligence or willful misconduct of such Indemnitee (as determined by a court
of competent jurisdiction in a final and non-appealable decision).  Each Assignor agrees that upon written notice
by any Indemnitee of the assertion of such a liability, obligation, loss, damage,
injury, penalty, claim, demand, action, suit or judgment, the relevant Assignor
shall assume full responsibility for the defense thereof.  Each Indemnitee agrees to use its
commercially reasonable efforts to promptly notify the relevant Assignor of any
such assertion of which such Indemnitee has knowledge.


 


(b)           Without limiting the application of Section 8.1(a) hereof,
each Assignor agrees, jointly and severally, to pay, or reimburse the
Collateral Agent for, any and all reasonable fees, costs and expenses of
whatever kind or nature incurred in connection with the creation, preservation
or protection of the Collateral Agent’s Liens on, and security interest in, the
Collateral, including, without limitation, all fees and taxes in connection
with the recording or filing of instruments and documents in public offices,
payment or discharge of any taxes or Liens upon or in respect of the
Collateral, premiums for insurance with respect to the Collateral and all other
reasonable fees, costs and expenses in connection with protecting, maintaining
or preserving the Collateral and the Collateral Agent’s interest therein,
whether through judicial proceedings or otherwise, or in defending or
prosecuting any actions, suits or proceedings arising out of or relating to the
Collateral.


 


(c)           Without limiting the application of Section 8.1(a) or
(b) hereof, each Assignor agrees, jointly and severally, to pay, indemnify
and hold each Indemnitee harmless from and against any loss, costs, damages and
expenses which such Indemnitee may suffer, expend or incur in consequence of or
growing out of any material misrepresentation by any Assignor in this
Agreement, any other Secured Debt Agreement or in any writing contemplated by
or made or delivered pursuant to or in connection with this Agreement or any
other Secured Debt Agreement.


 


(d)           If and to the extent that the
obligations of any Assignor under this Section 8.1 are unenforceable for
any reason, such Assignor hereby agrees to make the maximum contribution to the
payment and satisfaction of such obligations which is permissible under
applicable law.


 


8.2           Indemnity
Obligations Secured by Collateral; Survival.  Any amounts paid by any Indemnitee as to
which such Indemnitee has the right to reimbursement shall constitute
Obligations secured by the Collateral. 
The indemnity obligations (but not the security interests in the “Collateral”)
of each Assignor contained in this Article VIII shall continue in full
force and effect notwithstanding the full payment of all Obligations, the
termination of all Letters of Credit and all Revolving Commitments and the termination
of the Credit Agreement (except for sections thereof that explicitly survive
the repayment in full of all extensions of credit thereunder), and notwithstanding
the discharge thereof.


 


27





















 


ARTICLE IX


 


DEFINITIONS


 


The following terms shall have the meanings
herein specified.  Such definitions shall
be equally applicable to the singular and plural forms of the terms
defined.  Except as otherwise defined in
this Article IX, terms used in this Agreement shall have the meaning
provided such terms in the Credit Agreement (or, at any time on and after the
First Lien Obligations Termination Date, the Credit Agreement as in effect on
such date (without giving effect to the termination thereof)).


 


“Accounts Collateral” shall have the
meaning given to such term in the Credit Agreement as in effect on the
Amendment and Restatement Effective Date.


 


“Additional Pledged Interests” shall
mean, collectively, with respect to each Assignor, (i) all Capital Stock
of whatever class of any issuer of Initial Pledged Interests or any interest in
any such issuer, together with all rights, privileges, authority and powers of
such Assignor relating to such interests in each such issuer or under any
Organizational Document of any such issuer, and the certificates, instruments
and agreements representing such membership, partnership or other interests and
any and all interest of such Assignor in the entries on the books of any
financial intermediary pertaining to such membership, partnership or other
equity interests from time to time acquired by such Assignor in any manner and (ii) all
Capital Stock of each limited liability company, partnership or other entity
(other than a corporation) hereafter acquired or formed by such Assignor and all
Capital Stock of whatever class of such limited liability company, partnership
or other entity, together with all rights, privileges, authority and powers of
such Assignor relating to such interests or under any Organizational Document
of any such issuer, and the certificates, instruments and agreements
representing such membership, partnership or other equity interests and any and
all interest of such Assignor in the entries on the books of any financial
intermediary pertaining to such membership, partnership or other interests,
from time to time acquired by such Assignor in any manner.


 


“Additional Pledged Shares” shall
mean, collectively, with respect to each Assignor, (i) all Capital Stock
of whatever class of any issuer of the Initial Pledged Shares or any other
equity interest in any such issuer, together with all rights, privileges,
authority and powers of such Credit Party relating to such interests issued by
any such issuer under any Organizational Document of any such issuer, and the
certificates, instruments and agreements representing such interests and any
and all interest of such Assignor in the entries on the books of any financial
intermediary pertaining to such interests, from time to time acquired by such
Assignor in any manner and (ii) all the issued and outstanding shares of
Capital Stock of each corporation hereafter acquired or formed by such Assignor
of whatever class of such corporation, together with all rights, privileges,
authority and powers of such Assignor relating to such Capital Stock or under
any Organizational Document of such corporation, and the certificates,
instruments and agreements representing such shares and any and all interest of
such Assignor in the entries on the books of any financial intermediary
pertaining to such shares, from time to time acquired by such Assignor in any
manner.


 


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“As-Extracted Collateral” shall mean “as-extracted
collateral” as such term is defined in the Uniform Commercial Code as in effect
on the Original Effective Date in the State of New York.


 


“Authorized Representative” shall have
the meaning provided in Annex D hereto.


 


“Bank Creditors” shall mean the “Secured
Parties” as defined in the Credit Agreement and any other Persons holding First
Lien Obligations.


 


 “Business
Day” shall mean any day excluding Saturday, Sunday and any day which shall
be in the City of New York a legal holiday or a day on which banking
institutions are authorized by law to close.


 


“Cash Collateral Account” shall mean a
non-interest-bearing cash collateral account maintained with, and in the sole dominion
and control of, the Collateral Agent for the benefit of the Secured Creditors.


 


“Chattel Paper” shall mean “chattel
paper” as such term is defined in the Uniform Commercial Code as in effect on
the Original Effective Date in the State of New York.  Without limiting the foregoing, the term “Chattel
Paper” shall in any event include all Tangible Chattel Paper and all Electronic
Chattel Paper.


 


“Code” shall mean the Internal Revenue
Code of 1986, as the same now exists or may from time to time hereafter be
amended, modified, recodified or supplemented, together with all rules,
regulations and interpretations thereunder or related thereto.


 


“Commercial Tort Claims” shall mean “commercial
tort claims” as such term is defined in the Uniform Commercial Code as in
effect on the Original Effective Date in the State of New York.


 


“Commodity Account” shall mean any “commodity
account” as such term is defined in the Uniform Commercial Code as in effect on
the Original Effective Date in the State of New York.


 


“Commodity Intermediary” shall mean
any “commodity intermediary” as such term is defined in the Uniform Commercial
Code as in effect on the Original Effective Date in the State of New York.


 


“Contract Rights” shall mean all
rights of any Assignor under each Contract, including, without limitation, (i) any
and all rights to receive and demand payments under any or all Contracts, (ii) any
and all rights to receive and compel performance under any or all Contracts and
(iii) any and all other rights, interests and claims now existing or in
the future arising in connection with any or all Contracts.


 


“Contracts” shall mean all contracts
between any Assignor and one or more additional parties to the extent the grant
by an Assignor of a security interest pursuant to this Agreement in its right,
title and interest in any such contract is not validly prohibited by such
contract


 


29





















 


without the
consent of any other party thereto or would not give any other party to such
contract the right to terminate its obligations thereunder; provided,
that the foregoing limitation shall not affect, limit, restrict or impair the
grant by an Assignor of a security interest pursuant to this Agreement in any
account or any money or other amounts due or to become due under any such
contract, agreement, instrument or indenture.


 


“Copyrights” shall mean any United
States or foreign copyright owned by any Assignor now or hereafter, including
any registrations of any Copyright in the United States Copyright Office or the
equivalent thereof in any foreign country, as well as any application for a
United States or foreign copyright registration now or hereafter made with the
United States Copyright Office or the equivalent thereof in any foreign
jurisdiction by any Assignor.


 


“Credit Documents” shall mean the “Financing
Documents” as defined in the Credit Agreement and shall include any credit
documentation executed and delivered in connection with any replacement or
refinancing Credit Agreement, and, in each case, any amendments, amendments and
restatements, supplements, replacements or modifications thereto.


 


“Default” shall mean any event which,
with notice or lapse of time, or both, would constitute an Event of Default.


 


“Deposit Account Control Agreement”
shall mean an agreement in writing, in form and substance satisfactory to the
Collateral Agent, by and among such Collateral Agent, an Assignor, and any bank
at which any Deposit Account of such Assignor is at any time maintained which
provides that such bank will comply with instructions originated by such
Collateral Agent directing disposition of the funds in the Deposit Account
without further consent by such Credit Party and such other terms and
conditions as such Collateral Agent may require.


 


“Deposit Accounts” shall mean all “deposit
accounts” as such term is defined in the Uniform Commercial Code as in effect
on the Original Effective Date in the State of New York.


 


“Distributions”
shall mean, collectively, with respect to each Assignor, all dividends, cash,
options, warrants, rights, instruments, distributions, returns of capital or
principal, income, interest, profits and other property, interests (debt or equity)
or proceeds, including as a result of a split, revision, reclassification or
other like change of the Pledged Securities, from time to time received,
receivable or otherwise distributed to such Assignor in respect of or in exchange
for any or all of the Pledged Securities or Intercompany Notes.


 


“Documents” shall mean “documents” as
such term is defined in the Uniform Commercial Code as in effect on the
Original Effective Date in the State of New York.


 


“Domain Names” shall mean all Internet
domain names and associated URL addresses in or to which any Assignor now or
hereafter has any right, title or interest.


 


“Electronic Chattel Paper” shall mean “electronic
chattel paper” as such term is defined in the Uniform Commercial Code as in
effect on the Original Effective Date in the State of New York.


 


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“Equipment” shall mean any “equipment”
as such term is defined in the Uniform Commercial Code as in effect on the
Original Effective Date in the State of New York now or hereafter owned by any
Assignor and, in any event, shall include, but shall not be limited to, all
machinery, equipment, furnishings and fixtures now or hereafter owned by any
Assignor and any and all additions, substitutions and replacements of any of
the foregoing and all accessories thereto, wherever located, together with all
attachments, components, parts, equipment and accessories installed thereon or
affixed thereto.


 


“Event of Default” shall mean (i) any
Event of Default (or similar term) under, and as defined in, the Credit Agreement,
(ii) any payment default in respect of the Obligations (in any such case,
after the expiration of any applicable grace period) and (iii) on and
after the First Lien Obligations Termination Date, any Event of Default (or
similar term) under, and as defined in, the Senior Second Lien Notes Indenture.


 


“Excluded Accounts” shall mean (i) any
Deposit Account used exclusively for payroll, payroll taxes and other employee
wage and benefit payments to or for the benefit of the Assignors’ employees and
(ii) all other Deposit Accounts to the extent such Deposit Accounts do not
have an aggregate closing daily balance in excess of $100,000 for any 10
consecutive day period.


 


“Excluded Collateral” shall mean the
following:


 


(a)           any
lease, Contract, Permit or General Intangibles which are now or hereafter held
by any Assignor as licensee, lessee or otherwise, to the extent that such
lease, Contract, Permit or General Intangibles contain a valid prohibition
against the granting of a security interest therein (but solely to the extent
that any such restriction shall be enforceable under applicable law) which
consent shall not have been obtained; provided, however, that
Excluded Collateral shall not include any and all proceeds of such Contracts,
Permits and General Intangibles to the extent that the assignment or
encumbering of such proceeds is not so restricted;


 


(b)           any
Equipment or Inventory which are subject to any Permitted Lien to the extent
that the terms of the Indebtedness securing such Permitted Lien expressly
prohibit assigning or granting any such security interest in the respective
Assignor’s rights and obligations thereunder (but solely to the extent that any
such restriction shall be enforceable under applicable law); provided, however,
that Excluded Collateral shall not include any and all proceeds of such
Equipment or Inventory to the extent that the assignment or encumbering of such
proceeds is not so restricted;


 


(c)           any
Accounts Collateral; and


 


(d)           the
outstanding voting stock in excess of 65% of the voting power of all classes of
voting stock of any “controlled foreign corporation” (as defined in Section 957(a) of
the Code) entitled to vote.


 


“First Lien Obligations” shall mean
all “Obligations” as defined in the Credit Agreement.


 


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“First Lien Obligations Termination Date”
shall mean that date upon which all First Lien Obligations (other than those
arising from contingent indemnification obligations) have been paid in full in
cash in accordance with the terms of the respective Credit Documents and all
Revolving Loan Commitments and LC Facility Letters of Credit under the Credit
Agreement have been terminated and the Credit Agreement shall have terminated
(other than in respect of contingent indemnification obligations thereunder).


 


“General Intangibles” means “general
intangibles” as such term is defined in the Uniform Commercial Code as in
effect on the Original Effective Date in the State of New York.


 


“Goods” shall mean “goods” as such
term is defined in the Uniform Commercial Code as in effect on the Original
Effective Date in the State of New York.


 


“Health-Care-Insurance Receivable”
shall mean any “health-care-insurance receivable” as such term is defined in
the Uniform Commercial Code as in effect on the Original Effective Date in the
State of New York.


 


“Indemnitee” shall have the meaning
provided in Section 8.1 of this Agreement.


 


“Initial Pledged Interests” shall
mean, with respect to each Assignor, all Capital Stock (other than Capital
Stock of an issuer which is a corporation), as applicable, of each issuer
described in Schedule 11 annexed to the Perfection Certificate,
together with all rights, privileges, authority and powers of such Assignor in
and to each such issuer or under any Organizational Document of each such
issuer, and the certificates, instruments and agreements representing such
Capital Stock and any and all interest of such Assignor in the entries on the
books of any financial intermediary pertaining to such Capital Stock.


 


“Initial Pledged Shares” shall mean,
collectively, with respect to each Assignor, the issued and outstanding shares
of Capital Stock of each issuer (other than Parent) that is a corporation and
described in Schedule 11 annexed to the Perfection Certificate together
with all rights, privileges, authority and powers of such Assignor relating to
such interests in each such issuer or under any Organizational Document of each
such issuer, and the certificates, instruments and agreements representing such
Capital Stock and any and all interest of such Assignor in the entries on the
books of any financial intermediary pertaining to such Capital Stock.


 


“Instrument” shall mean “instrument”
as such term is defined in the Uniform Commercial Code as in effect on the
Original Effective Date in the State of New York.


 


“Intercompany Notes” shall mean, with
respect to each Assignor, all intercompany notes described in Schedule 12
annexed to the Perfection Certificate and intercompany notes hereafter acquired
by such Assignor and all certificates, instruments or agreements evidencing
such intercompany notes, and all assignments, amendments, restatements,
supplements, extensions, renewals, replacements or modifications thereof to the
extent permitted pursuant to the terms hereof.


 


“Inventory” shall mean merchandise,
inventory and goods, and all additions, substitutions and replacements thereof
and all accessions thereto, wherever located, together with all


 


32





















 


goods,
supplies, incidentals, packaging materials, labels, materials and any other
items used or usable in manufacturing, processing, packaging or shipping same;
in all stages of production — from raw materials through work-in-process to
finished goods — and all products and proceeds of whatever sort and wherever
located and any portion thereof which may be returned, rejected, reclaimed or
repossessed by the Collateral Agent from any Assignor’s customers, and shall
specifically include all “inventory” as such term is defined in the Uniform Commercial
Code as in effect on the Original Effective Date in the State of New York, now
or hereafter owned by any Assignor.


 


“Investment Property” shall mean “investment
property” as such term is defined in the Uniform Commercial Code as in effect
on the Original Effective Date in the State of New York.


 


“Investment Property Control Agreement”
shall mean an agreement in writing, in form and substance satisfactory to the
Collateral Agent, by and among the Collateral Agent, an Assignor and any
Securities Intermediary, Commodity Intermediary or other person who has
custody, control or possession of any Investment Property of such Credit Party
acknowledging that such Securities Intermediary, Commodity Intermediary or
other person has custody, control or possession of such Investment Property on
behalf of the Collateral Agent, that it will comply with entitlement orders
originated by the Collateral Agent with respect to such Investment Property, or
other instructions of the Collateral Agent, or (as the case may be) apply any
value distributed on account of any commodity contract as directed by the Collateral
Agent, in each case, without the further consent of such Credit Party and
including such other terms and conditions as the Collateral Agent may require.


 


“Letter-of-Credit Rights” shall mean “letter-of-credit
rights” as such term is defined in the Uniform Commercial Code as in effect on
the Original Effective Date in the State of New York.


 


“Liens” shall mean any security
interest, mortgage, pledge, lien, claim, charge, encumbrance, title retention
agreement, lessor’s interest in a financing lease or analogous instrument in,
of or on any Assignor’s property.


 


“Location” shall mean, for any
Assignor, such Assignor’s “location” as determined pursuant to Section 9-307
of the Uniform Commercial Code as in effect on the Original Effective Date in
the State of New York.


 


“Marks” shall mean all right, title
and interest in and to any United States or foreign trademarks, service marks
and trade names now held or hereafter acquired by any Assignor, including any
registration or application for registration of any trademarks and service
marks in the United States Patent and Trademark Office, or the equivalent
thereof in any State of the United States or in any foreign country, and any
trade dress, including logos, designs, trade names, company names, business
names, fictitious business names and other business identifiers used by any
Assignor in the United States or any foreign country.


 


“Motor Vehicle Laws” shall mean all
U.S. Federal, state, provincial and local laws, regulations, rules and
judicial or agency determinations and orders applicable to the


 


33





















 


ownership and/or
operation of vehicles (including, without limitation, the Rolling Stock), or
the business of the transportation of goods by motor vehicle, including,
without limitation, laws, regulations, rules and judicial or agency
determinations and orders promulgated or administered by the Federal Highway
Administration, the Federal Motor Carrier Safety Administration, the National
Highway Traffic Safety Administration, the Surface Transportation Board and
other state, provincial and local Governmental Authorities with respect to
vehicle safety and registration and motor carrier insurance, financial
assurance, credit extension, contract carriage, tariff and reporting
requirements.


 


“Obligations” shall mean and include,
as to any Assignor, all of the following:


 


(i)            the First Lien
Obligations;


 


(ii)           the Senior Second
Lien Notes Obligations;


 


(iii)          any and all sums
advanced by the Collateral Agent in order to preserve the Collateral or
preserve its security interest in the Collateral;


 


(iv)          in the event of any
proceeding for the collection or enforcement of any indebtedness, obligations
or liabilities of each Assignor referred to in preceding clauses (i) and (ii) after
an Event of Default shall have occurred and be continuing, the reasonable
expenses of re-taking, holding, preparing for sale or lease, selling or
otherwise disposing of or realizing on the Collateral, or of any exercise by
the Collateral Agent of its rights hereunder, together with reasonable
attorneys’ fees and court costs; and


 


(v)           all amounts paid by
any Indemnitee as to which such Indemnitee has the right to reimbursement under
Section 8.1 of this Agreement.


 


It is
acknowledged and agreed that the “Obligations” shall include extensions of
credit of the types described above, whether outstanding on the Amendment and
Restatement Effective Date or extended from time to time after the Amendment
and Restatement Effective Date.


 


“Original Security Agreement” means
this Agreement as in effect immediately prior to the Amendment and Restatement
Effective Date.


 


“Patents” shall mean any United States
or foreign patent with respect to which any Assignor now or hereafter has any
right, title or interest, and any divisions, continuations (including, but not
limited to, continuations-in-part) and improvements thereof, as well as any
application for a United States or foreign patent now or hereafter made by any
Assignor.


 


“Perfection Certificate” shall mean
the Perfection Certificate of Assignors constituting Exhibit A-1
hereto containing material information with respect to Assignors, their
business and assets provided by or on behalf of Assignors to Collateral Agent
in connection with the preparation of this Agreement as the same shall be
supplemented from time to time by a Perfection Certificate Supplement or
otherwise.


 


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“Perfection Certificate Supplement”
shall mean a certificate supplement in the form of Exhibit A-2
hereto or any other form approved in writing by Collateral Agent.


 


“Permits” shall mean, to the extent permitted
to be assigned by the terms thereof or by applicable law, all licenses,
permits, rights, orders, variances, franchises or authorizations (including
certificates of need) of or from any governmental authority or agency.


 


“Permitted Liens” shall mean Liens
which are permitted by the Secured Debt Agreements.


 


“Pledged Interests” shall mean,
collectively, the Initial Pledged Interests and the Additional Pledged
Interests; provided, however, that the “Pledged Interests” shall
not include the voting stock of any Subsidiary of any Assignor which is a
first-tier controlled foreign corporation (as defined in Section 957(a) of
the Code) representing in excess of 65% of the total voting power of all
outstanding voting stock of such Subsidiary. 
For purposes of the foregoing, “voting stock” shall mean “stock entitled
to vote” within the meaning of Treasury Regulation Section 1.956-2(c)(2).


 


“Pledged Securities” shall mean,
collectively, the Pledged Interests, the Pledged Shares and the Successor Interests.


 


“Pledged Shares” shall mean,
collectively, the Initial Pledged Shares and the Additional Pledged Shares; provided,
however, that “Pledged Shares” shall not include any voting stock
of any Subsidiary of any Assignor which is a first-tier controlled foreign corporation
(as defined in Section 957(a) of the Code) representing in excess of
65% of the total voting power of all outstanding voting stock of such
Subsidiary.  For purposes of the
foregoing, “voting stock” shall mean “stock entitled to vote” within the meaning
of Treasury Regulation Section 1.956-2(c)(2).


 


“Proceeds” shall have the meaning
provided in the Uniform Commercial Code as in effect in the State of New York
on the Original Effective Date or under other relevant law and, in any event,
shall include, but not be limited to, (i) any and all proceeds of any insurance,
indemnity, warranty or guaranty payable to the Collateral Agent or any Assignor
from time to time with respect to any of the Collateral, (ii) any and all
payments (in any form whatsoever) made or due and payable to any Assignor from
time to time in connection with any requisition, confiscation, condemnation,
seizure or forfeiture of all or any part of the Collateral by any governmental
authority (or any person acting under color of governmental authority) and (iii) any
and all other amounts from time to time paid or payable under or in connection
with any of the Collateral.


 


“Registered Organization” shall have
the meaning provided in the Uniform Commercial Code as in effect on the
Original Effective Date in the State of New York.


 


“Required Secured Creditors” shall
mean (i) at any time prior to the First Lien Obligations Termination Date,
the Majority Lenders (or, to the extent required by the Credit Agreement, each
of the Lenders) and (ii) at any time on and after the First Lien
Obligations Termination Date, the Senior Second Lien Notes Indenture Trustee
acting in accordance with the provisions of the Senior Second Lien Notes
Indenture (with the consent of the holders of the


 


35





















 


requisite
percentage of the then outstanding Senior Second Lien Notes Obligations (to the
extent such consent is required by the terms of the Senior Second Lien Notes
Indenture)).


 


“Requisite Creditors” shall have the meaning
provided in Section 10.2 of this Agreement.


 


“Rolling Stock” shall
mean all trucks, trailers, tractors, service vehicles, automobiles and other
registered mobile equipment.


 


“Second Lien Excluded Collateral”
shall mean and include (i) all assets of the Assignors located outside of
the United States; (ii) all Capital Stock, notes, instruments, other equity
interests and other securities owned or held by the Assignors in any Subsidiary
of Parent; and (ii) all Proceeds and products from any and all of the
foregoing excluded collateral described in clause (i) and (ii) above.


 


“Secured Creditors” shall mean,
collectively, the Bank Creditors and the Senior Second Lien Notes Creditors.


 


“Secured Debt Agreements” shall mean
and include (i) this Agreement, (ii) the Credit Agreement and the
other Credit Documents and (iii) the Senior Second Lien Notes Documents.


 


“Securities Account” shall mean any “securities
account” as such term is defined in the Uniform Commercial Code as in effect on
the Original Effective Date in the State of New York.


 


“Securities Collateral” shall mean,
collectively, the Pledged Securities, the Intercompany Notes and the Distributions.


 


“Securities Intermediary” shall mean
any “securities intermediary” as such term is defined in the Uniform Commercial
Code as in effect on the Original Effective Date in the State of New York.


 


“Security Documents” shall mean,
collectively, the Security Documents, as such term is defined in the Credit
Agreement, and the Security Documents, as such term is defined in the
Indenture.


 


“Senior Second Lien Noteholders” shall
have the meaning provided in the recitals to this Agreement.


 


“Senior Second Lien Notes” shall have
the meaning provided in the recitals of this Agreement.


 


“Senior Second Lien Notes Creditors”
shall mean the Senior Second Lien Notes Indenture Trustee and the Senior Second
Lien Noteholders.


 


“Senior Second Lien Notes Documents”
shall mean the Senior Second Lien Notes, the Senior Second Lien Notes Indenture
and the other documents and instruments


 


36





















 


executed and
delivered with respect to the Senior Second Lien Notes or the Senior Second
Lien Notes Indenture, in each case as in effect on the Original Effective Date
and as the same may be amended, modified and/or supplemented time to time in
accordance with the terms thereof and of the Credit Agreement.


 


“Senior Second Lien Notes Obligations”
shall mean the full and prompt payment when due (whether at the stated
maturity, by acceleration or otherwise) of all obligations (including
obligations which, but for the automatic stay under Section 362(a) of
the Bankruptcy Code, would become due), liabilities and indebtedness
(including, without limitation, indemnities, fees and expenses of the Senior
Second Lien Notes Indenture Trustee and all interest thereon and all interest
that accrues after the commencement of any case, proceeding or other action
relating to the bankruptcy, insolvency, reorganization or similar proceeding of
any Assignor at the rate provided for in the respective documentation, whether
or not a claim for post-petition interest is allowed in any such case,
proceeding or other action) of such Assignor owing to the Senior Second Lien
Notes Creditors, whether now existing or hereafter incurred under, arising out
of or in connection with each Senior Second Lien Notes Document to which such
Assignor is a party (including, in the case of each Assignor that provides a
guaranty in respect of the Senior Second Lien Notes, all such obligations,
indebtedness and liabilities under such guaranty) and the due performance and
compliance by each Assignor with all of the terms, conditions and agreements
contained in each such Senior Second Lien Notes Document.


 


“Software” shall mean “software”
as such term is defined in the Uniform Commercial Code as in effect on the
Original Effective Date in the State of New York.


 


“Successor Interests” shall mean,
collectively, with respect to each Assignor, all shares of each class of the
capital stock of the successor corporation or interests or certificates of the
successor limited liability company, partnership or other entity owned by such
Assignor (unless such successor is such Assignor itself) formed by or resulting
from any consolidation or merger in which any issuer of Pledged Shares or
Pledged Interests is not the surviving entity; provided, however,
that the “Successor Interests” shall not include the voting stock of any Subsidiary
which is a first-tier controlled foreign corporation (as defined in Section 957(a) of
the Code) representing in excess of 65% of the total voting power of all outstanding
voting stock of such Subsidiary.  For
purposes of the foregoing, “voting stock” shall mean “stock entitled to vote”
within the meaning of Treasury Regulation Section 1.956-2(c)(2).


 


“Supporting Obligations” shall mean
any “supporting obligation” as such term is defined in the Uniform Commercial
Code as in effect on the Original Effective Date in the State of New York, now
or hereafter owned by any Assignor, or in which any Assignor has any rights,
and, in any event, shall include, but shall not be limited to all of such
Assignor’s rights in any Letter-of Credit Right or secondary obligation that
supports the payment or performance of, and all security for, any Chattel Paper,
Document, General Intangible, Instrument or Investment Property.


 


“Tangible Chattel Paper” shall mean “tangible
chattel paper” as such term is defined in the Uniform Commercial Code as in
effect on the Original Effective Date in the State of New York.


 


37





















 


“Termination Date” shall have the
meaning provided in Section 10.8 of this Agreement.


 


“Timber-to-be-Cut” shall mean “timber-to-be-cut”
as such term is used in the Uniform Commercial Code as in effect on the
Original Effective Date in the State of New York.


 


“Title Insurance Policies” shall mean,
collectively, the Title Insurance Policies, as such term is defined in the
Credit Agreement, and the Title Insurance Policies, as such term is defined in
the Indenture.


 


“Trade Secret Rights” shall mean the
rights of an Assignor in any Trade Secrets it holds or owns.


 


“Trade Secrets” shall mean any
secretly held existing engineering and other data, information, production procedures
and other know-how relating to the design, manufacture, assembly, installation,
use, operation, marketing, sale and servicing of any products or business of an
Assignor worldwide, whether written or not written.


 


“Transmitting Utility” shall have the
meaning given such term in Section 9-102(a)(80) of the Uniform Commercial
Code as in effect on the Original Effective Date in the State of New York.


 


“Trust Indenture Act” shall mean the
Trust Indenture Act of 1939, as amended, and the rules and regulations promulgated
thereunder from time to time.


 


“Trustee Obligations” shall mean in
the event of any proceeding for the collection or enforcement of any indebtedness,
obligations or liabilities of any Assignor in respect of the Senior Second Lien
Note Obligations after an Event of Default shall have occurred and be
continuing, the indemnities, fees and expenses of re-taking, holding, preparing
for sale or lease, selling or otherwise disposing of or realizing on the
Collateral, or of any exercise by the Senior Second Lien Notes Indenture
Trustee of its rights, powers or duties under the Senior Second Lien Note
Documents, together with reasonable attorneys’ fees and court costs.


 


ARTICLE X


 


MISCELLANEOUS


 


10.1         Notices.  Except as otherwise specified herein, all
notices, requests, demands or other communications to or upon the respective
parties hereto shall be deemed to have been duly given or made when delivered
to the party to which such notice, request, demand or other communication is
required or permitted to be given or made under this Agreement, addressed:


 


(a)           if to any Assignor, to it:


 


c/o Clean
Harbors, Inc.

1501 Washington Street


 


38





















 


Braintree,
MA  02184

Attention:  Chief Financial Officer

Telephone No.:  (617) 849-1800

Telecopy No.:  (617) 848-1632


 


with a copy to:


 


Davis Malm & D’Agostine, P.C.

One Boston Place

Boston, MA  02108-4470

Attention:  C. Michael Malm, Esq.

Telephone No.:  617-367-2500

Telecopy No.:  617-523-6215


 


(b)           if to the Collateral Agent:


 


Credit Suisse

One Madison Avenue

New York, NY 10010

CSFB Loan Services Group, Attention: Carolyn Tee

Telephone No.:  (212) 325-9936

Telecopy No.:  (212) 325-8304


 


with a copy to:


 


Cahill Gordon & Reindel LLP

80 Pine Street

New York, NY  10005

Attention:  Susanna M. Suh, Esq.

Telephone No.:  212-701-3000

Telecopy No.:  212-269-5420


 


(c)           if to any Bank Creditor (other than
the Collateral Agent), at such address as such Bank Creditor shall have specified
in the Credit Agreement; and


 


(d)           if to any other Secured Creditor, (x)
to the Authorized Representative for such Secured Creditor or (y) if there is
no such Authorized Representative, at such address as such Secured Creditor
shall have specified in writing to the Borrower and the Collateral Agent; or at
such other address as shall have been furnished in writing by any Person
described above to the party required to give notice hereunder.


 


10.2         Waiver;
Amendment; Notice of Acceleration.  None
of the terms and conditions of this Agreement or any other Security Document
may be changed, waived, modified or varied in any manner whatsoever unless in
writing duly signed by each Assignor directly and adversely affected thereby
and the Collateral Agent (with the consent of the Required Secured Creditors); provided,
that (i) additional Assignors may be added as parties hereto from time to
time in accordance with Section 10.13 hereof without the consent of any
other Assignor or of the


 


39





















 


Secured
Creditors, and (ii) any change, waiver, modification or variance
materially and adversely affecting the rights and benefits of the Senior Second
Lien Notes Creditors and not all Secured Creditors in a like or similar manner
shall require the written consent of the Requisite Creditors of the Senior
Second Lien Notes Creditors as holders of the Senior Second Lien Notes
Obligations; provided  further, however, that
notwithstanding anything to the contrary provided in clause (ii) of the
immediately preceding proviso, (x) the Required Secured Creditors may agree to
modifications to this Agreement or any other Security Document and, to the
extent so agreed, the Collateral Agent shall implement such modifications, for
the purpose, among other things, of securing additional extensions of credit
(including, without limitation, pursuant to the Credit Agreement or any
refinancing or extension thereof) and adding new creditors as “Secured
Creditors” hereunder and thereunder and such changes shall not require the
written consent of the Senior Second Lien Notes Creditors, so long as such
extensions (and resulting addition) do not otherwise give rise to an express
violation of the terms of the Senior Second Lien Notes Documents, (y) such
clause (ii) shall not apply to any release of Collateral of any Assignor
(or the termination of this Agreement or any other Security Document) effected
in accordance with the requirements of Section 10.8 of this Agreement or
the comparable provisions of the other Security Documents, as the case may be,
and (z) any amendment, change, waiver, modification or variance to the extent
relating to any Second Lien Excluded Collateral may be made without the prior
consent of the Senior Second Lien Notes Creditors.  For the purpose of this Agreement and the
other Security Documents, the term “Class” shall mean each class of
Secured Creditors with outstanding Obligations secured hereby at such time, i.e.,
whether the Bank Creditors as holders of the First Lien Obligations or the
Senior Second Lien Notes Creditors as holders of the Senior Second Lien Notes
Obligations.  For the purpose of this
Agreement and the other Security Documents, the term “Requisite Creditors”
of any Class shall mean each of (x) with respect to the First Lien
Obligations, the Majority Lenders and (y) with respect to the Senior Second
Lien Notes Obligations, the Senior Second Lien Notes Indenture Trustee acting
at the direction of the requisite percentage of the holders of the Senior
Second Lien Notes Obligations outstanding from time to time (to the extent such
direction is required by the terms of the Senior Second Lien Notes
Indenture).  Notwithstanding anything to
the contrary provided in this Agreement, to facilitate the extension of additional
permitted secured debt or the permitted refinancing of existing secured debt,
the Collateral Agent shall enter into intercreditor, subordination or
acknowledgment agreements (which agreements may specify, among other things, (i) that
the other permitted secured debt may be secured by the Collateral and be
entitled to the benefits of the Security Documents, (ii) the relative
priority of the Lien in the Collateral securing such other permitted secured
debt, (iii) that the holder of such other permitted secured debt shall be
entitled to the same rights and remedies, including rights of foreclosure and
voting rights, as the holders of the secured debt being refinanced, (iv) the
resignation or succession of Collateral Agents contemplated by Section 10.16
hereof and/or the appointment of a successor Collateral Agent in accordance
with Annex D hereto and (v) such other matters as are reasonably requested
by the Assignors as may be necessary or desirable to enable the Assignors to
receive the practical benefit of the provisions contained in the Credit
Documents and in the Senior Second Lien Notes Indenture regarding the ability
of the Assignors to incur other Indebtedness secured by a Lien in the
Collateral) and/or take such other actions that may be reasonably requested by
any Assignor, in connection with securing additional extensions of credit
without the consent of the Requisite Creditors of the various Classes, so long
as (x) such extensions (and resulting addition) or refinancings which give rise
to the need for such intercreditor, subordination or acknowledgment


 


40





















 


agreements do
not otherwise give rise to an express violation of the terms of the Credit
Agreement or the Second Lien Notes Documents, (y) such intercreditor,
subordination and/or acknowledgment agreements are reasonably required to
effect the securing of additional extensions or refinancings of credit and (z)
the terms and conditions of such intercreditor, subordination and
acknowledgment agreements, as the case may be, are reasonably satisfactory to
the Collateral Agent.


 


10.3         Obligations
Absolute.  The obligations of each
Assignor hereunder shall remain in full force and effect without regard to, and
shall not be impaired by, (a) any bankruptcy, insolvency, reorganization,
arrangement, readjustment, composition, liquidation or the like of such
Assignor; (b) any exercise or non-exercise, or any waiver of, any right,
remedy, power or privilege under or in respect of this Agreement or any other
Secured Debt Agreement; (c) any renewal, extension, amendment or
modification of or addition or supplement to or deletion from any Secured Debt
Agreement or any security for any of the Obligations; (d) any waiver,
consent, extension, indulgence or other action or inaction under or in respect
of any such agreement or instrument including, without limitation, this Agreement;
(e) any furnishing of any additional security to the Collateral Agent or
its assignee or any acceptance thereof or any release of any security by the
Collateral Agent or its assignee; or (f) any limitation on any party’s
liability or obligations under any such instrument or agreement or any
invalidity or unenforceability, in whole or in part, of any such instrument or
agreement or any term thereof; whether or not any Assignor shall have notice or
knowledge of any of the foregoing.  The
rights and remedies of the Collateral Agent herein provided are cumulative and
not exclusive of any rights or remedies which the Collateral Agent would
otherwise have.


 


10.4         Successors
and Assigns.  This Agreement shall be
binding upon each Assignor and its successors and assigns and shall inure to
the benefit of the Collateral Agent, the other Secured Creditors and their
respective successors and assigns; provided, that, except as otherwise
permitted by the Secured Debt Agreements, no Assignor may transfer or assign
any or all of its rights or obligations hereunder without the prior written
consent of the Collateral Agent (with the consent of the Required Secured
Creditors).  Any Person that becomes (or
has become) a Secured Creditor after the Original Effective Date by its
acceptance of any Note, any Senior Second Lien Note or the benefits of this
Agreement or any other Security Document, as the case may be, shall be bound by
the terms hereof and thereof; it being understood that no Senior Second Lien
Noteholder shall have any right to give any direction to the Collateral Agent
with respect to any Collateral or take any action or exercise any right of a
Secured Creditor under this Agreement or any other Security Documents, with all
such directions, actions or rights to be given, taken or exercised, as the case
may be, by the Senior Second Lien Notes Indenture Trustee, acting for the
benefit of the holders of the Senior Second Lien Notes Obligations, provided
that nothing contained in the preceding clause shall be construed to limit the
agreements set forth in the last sentence of Section 7.1 hereof.  All agreements, statements, representations
and warranties made by each Assignor herein or in any certificate or other
instrument delivered by such Assignor or on its behalf under this Agreement
shall be considered to have been relied upon by the Secured Creditors and shall
survive the execution and delivery of this Agreement and each other Secured
Debt Agreement regardless of any investigation made by the Secured Creditors or
on their behalf.


 


41





















 


10.5         Headings
Descriptive.  The headings of the
several sections of this Agreement are inserted for convenience only and shall
not in any way affect the meaning or construction of any provision of this
Agreement.


 


10.6         GOVERNING
LAW.  THIS AGREEMENT AND THE RIGHTS
AND OBLIGATIONS OF THE ASSIGNORS AND SECURED CREDITORS HEREUNDER SHALL BE
CONSTRUED IN ACCORDANCE WITH AND BE GOVERNED BY THE LAW OF THE STATE OF NEW
YORK.  EACH ASSIGNOR AND EACH SECURED
CREDITOR IRREVOCABLY WAIVES ALL RIGHT TO A TRIAL BY JURY IN ANY ACTION,
PROCEEDING OR COUNTERCLAIM ARISING OUT OF OR RELATING TO THIS AGREEMENT OR ANY
OTHER SECURITY DOCUMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY.


 


10.7         Assignor’s
Duties.  It is expressly agreed,
anything herein contained to the contrary notwithstanding, that each Assignor
shall remain liable to perform all of the obligations, if any, assumed by it
with respect to the Collateral and neither the Collateral Agent nor any other
Secured Creditor shall have any obligations or liabilities with respect to any
Collateral by reason of or arising out of this Agreement, nor shall the
Collateral Agent or any other Secured Creditor be required or obligated in any
manner to perform or fulfill any of the obligations of any Assignor under or
with respect to any Collateral.


 


10.8         Termination;
Release.  (a)  After the
Termination Date, this Agreement shall terminate (provided that all indemnities
set forth herein including, without limitation, in Section 8.1 hereof and
in Section 6 of Annex D hereto shall survive such termination) and the
Collateral Agent, at the request and expense of the relevant Assignor, will
execute and deliver to such Assignor a proper instrument or instruments (including
Uniform Commercial Code termination statements on form UCC-3) acknowledging the
satisfaction and termination of this Agreement, and will duly assign, transfer
and deliver to such Assignor (without recourse and without any representation
or warranty) such of the Collateral as may be in the possession of the
Collateral Agent and as has not theretofore been sold or otherwise applied or released
pursuant to this Agreement.  As used in
this Agreement, “Termination Date” shall mean the date upon which (i) the
First Lien Obligations Termination Date shall have then (or theretofore)
occurred and (ii) all Senior Second Lien Notes Obligations (other than
those arising from indemnities for which no claim has been made) then owing
have been paid in full (or been defeased in accordance with the terms of the
Senior Second Lien Notes Indenture).


 


(b)           In the event that any part of the
Collateral is sold or otherwise disposed of (to a Person other than an Assignor)
(x) at any time prior to the First Lien Obligations Termination Date, in
connection with a sale or other disposition permitted by the Credit Agreement
or is otherwise released at the direction of the Required Secured Creditors or
(y) at any time thereafter, in connection with a sale or other disposition
permitted by the other Secured Debt Agreements or is otherwise released at the
direction of the Required Secured Creditors, and the proceeds of any such sale
or disposition or other release are applied in accordance with the terms of the
(x) at any time prior to the First Lien Obligations Termination Date, the
Credit Agreement and (y) at any time thereafter, such other Secured Debt
Agreements, to the extent required to be so applied, such Collateral will be
sold, disposed of or released free and clear of the Liens


 


42





















 


created by this Agreement and the Collateral
Agent, at the request and expense of such Assignor, will (i) duly assign,
transfer and deliver to such Assignor (without recourse and without any representation
or warranty) such of the Collateral as is then being (or has been) so sold,
disposed of or released and as may be in the possession of the Collateral Agent
and has not theretofore been released pursuant to this Agreement and/or (ii) execute
such releases and discharges in respect of such Collateral as is then being (or
has been) so sold, disposed of or released as such Assignor may reasonably
request.  Notwithstanding the foregoing,
prior to the First Lien Obligations Termination Date, any release of any Liens
on the Collateral authorized pursuant to the terms of any Credit Document shall
be binding upon the Senior Second Lien Notes Creditors; provided, however,
that no release of the Senior Second Lien Notes Creditors’ Liens on the
Collateral under this Section 10.8(b) shall be made without the
consent of the required percentage of holders of the Senior Second Lien Notes
in accordance with the Senior Second Lien Notes Indenture if (i) (a) the
Collateral to be released is not the subject of a sale or other disposition and
(b) such release is being made in connection with or in contemplation of
the repayment in full of the First Lien Obligations or (ii) such release
is a release of all or substantially all of the Collateral in connection with a
transaction that is not expressly permitted by this Agreement (including Section 7
hereof) or the Senior Second Lien Note Documents.


 


(c)           At any time that the respective
Assignor desires that Collateral be released as provided in the foregoing Section 10.8(a) or
(b), such Assignor shall deliver to the Collateral Agent a certificate signed
by an Authorized Officer of such Assignor stating that the release of the
respective Collateral is permitted pursuant to Section 10.8(a) or (b) hereof.


 


(d)           The Collateral Agent shall have no
liability whatsoever to any other Secured Creditor as the result of any release
of Collateral by it in accordance with (or which the Collateral Agent in the
absence of gross negligence or willful misconduct believes to be in accordance
with) this Section 10.8.


 


(e)           Without limiting the foregoing
provisions of this Section 10.8, to the extent applicable following the
qualification of the Senior Second Lien Notes Indenture under the Trust
Indenture Act (but only insofar as this Agreement applies to the Senior Second
Lien Notes Creditors) (i) the Assignors shall comply with Section 314(d) of
the Trust Indenture Act in connection with the release of property or Liens
hereunder and (ii) the parties hereto agree that if any amendments to this
Agreement or any other Security Documents are required in order to comply with
the provisions of the Trust Indenture Act, such parties shall cooperate and act
in good faith to effect such amendments as promptly as practicable.


 


10.9         Counterparts.  This Agreement may be executed in any number
of counterparts and by the different parties hereto on separate counterparts,
each of which when so executed and delivered shall be an original, but all of
which shall together constitute one and the same instrument.  A set of counterparts executed by all the
parties hereto shall be lodged with the Borrower and the Collateral Agent.


 


10.10       The
Collateral Agent; Secured Creditor Acknowledgments.  (a)  The Collateral Agent will hold in
accordance with this Agreement all items of the Collateral at any time received
under this Agreement.  It is expressly
understood and agreed that the obligations of the Collateral Agent as holder of
the Collateral and interests therein and with respect to the


 


43





















 


disposition
thereof, and otherwise under this Agreement, are only those expressly set forth
in this Agreement and Annex D hereto. 
The Collateral Agent shall act hereunder on the terms and conditions set
forth in Section 13 of the Credit Agreement and in Annex D hereto, the
terms of which shall be deemed incorporated herein by reference as fully as if
the same were set forth herein in their entirety.  In the event that any provision set forth in Section 13
of the Credit Agreement in respect of the Collateral Agent conflicts with any
provision set forth in Annex D hereto, the provisions of Annex D hereto shall
govern (except that the LC Facility Lenders shall remain obligated to indemnify
the Collateral Agent pursuant to Section 13 of the Credit Agreement, to
the extent the Collateral Agent is not indemnified by Secured Creditors
pursuant to such Annex D).


 


(b)           In addition to the provisions of
clause (a) of this Section 10.10 and the other provisions of this
Agreement and the other Security Documents, the Secured Creditors (by their
acceptance of the benefits of this Agreement and the other Security Documents)
also expressly acknowledge and agree to the other provisions of Annex D hereto.


 


10.11       Severability.  Any provision of this Agreement which is prohibited
or unenforceable in any jurisdiction shall, as to such jurisdiction, be
ineffective to the extent of such prohibition or unenforceability without
invalidating the remaining provisions hereof, and any such prohibition or
unenforceability in any jurisdiction shall not invalidate or render
unenforceable such provision in any other jurisdiction.


 


10.12       Limited
Obligations.  (a)  It is the
desire and intent of each Assignor and the Secured Creditors that this Agreement
shall be enforced against each Assignor to the fullest extent permissible under
the laws and public policies applied in each jurisdiction in which enforcement
is sought.  Notwithstanding anything to
the contrary contained herein, in furtherance of the foregoing, it is noted
that as to each Assignor that is a Subsidiary of the Borrower and which has
executed a guaranty of any of the Obligations pursuant to a Secured Debt
Agreement, the obligations of such Assignor thereunder are limited to the
extent provided therein.


 


(b)           To the extent not otherwise provided
in a guaranty given by an Assignor in respect of the Senior Second Lien Notes
Obligations, each Assignor (collectively, the “second lien assignors”),
the Senior Second Lien Notes Indenture Trustee and each other Senior Second
Lien Notes Creditor hereby confirm that it is the intention of all such Persons
that the grant of the security interest hereunder by the second lien assignors
with respect to the Senior Second Lien Notes Obligations and the Senior Second
Lien Notes Obligations of each such second lien assignor hereunder does not
constitute a fraudulent transfer or conveyance for purposes of any bankruptcy
law (as hereinafter defined), the Uniform Fraudulent Conveyance Act, the
Uniform Fraudulent Transfer Act or any similar foreign, federal or state law to
the extent applicable to this Agreement and the Senior Second Lien Notes
Obligations of the second lien assignors hereunder.  To effectuate the foregoing intention, the
Senior Second Lien Notes Indenture Trustee, the other Senior Second Lien Notes
Creditors and the second lien assignors hereby irrevocably agree that the
Senior Second Lien Notes Obligations of the second lien assignors hereunder at
any time shall be limited to the maximum amount (after taking into account any
guaranty of the First Lien Obligations by the second lien assignors) as will
result in the Senior Second Lien Notes Obligations of the second lien assignors
hereunder not constituting a fraudulent transfer or


 


44





















 


conveyance. 
For purposes hereof, “bankruptcy law” means any proceeding of the
type referred to in Section 6.01(h) or (i) of the Senior Second
Lien Notes Indenture or Title 11, U.S. Code, or any similar foreign, federal or
state law for the relief of debtors.


 


10.13       Additional
Assignors.  It is understood and
agreed that any Subsidiary of the Borrower that is required to become a party
to this Agreement after the Amendment and Restatement Effective Date pursuant
to the requirements of the Credit Agreement or the Senior Second Lien Notes
Indenture shall become an Assignor hereunder by (x) executing a counterpart
hereof and/or an assumption agreement, in each case in form and substance
satisfactory to the Collateral Agent, (y) delivering a Perfection Certificate
Supplement to the Perfection Certificate so as to cause such Perfection
Certificate to be complete and accurate with respect to such additional Assignor
on such date and (z) taking all actions as specified in this Agreement, the
Credit Agreement and the Senior Second Lien Notes Indenture, in each case with
all documents required above to be delivered to the Collateral Agent and with
all documents and action required above to be taken to the reasonable satisfaction
of the Collateral Agent.


 


10.14       No
Third Party Beneficiaries.  This
Agreement is entered into solely for the benefit of the parties hereto and
their respective successors and assigns and for the benefit of the Secured
Creditors from time to time and their respective successors and assigns and,
except for the Secured Creditors and their successors and assigns, there shall
be no third party beneficiaries hereof, nor shall any Person other than the
parties hereto and their respective successors and assigns, and the Secured
Creditors and their respective successors and assigns, be entitled to enforce
the provisions hereof or have any claims against any party hereto (or any Secured
Creditor) or their successors and assigns arising from, or under, this
Agreement.


 


10.15       Trustee’s
Disclaimer. Notwithstanding any term herein to the
contrary, it is hereby expressly agreed and acknowledged that the agreements
set forth herein by the Senior Second Lien Notes Indenture Trustee are made
solely in its capacity as Trustee under the Indenture and with respect to the
Securities (and not in its individual corporate capacity).  The Senior Second Lien Notes Indenture
Trustee shall not have any duties, obligations or responsibilities under this
Agreement except as expressly set forth herein, and shall have no responsibility
or liability for the sufficiency, acceptability, validity or enforceability of
any of the terms hereof.  Nothing in this
Agreement shall be construed to operate as a waiver by the Senior Second Lien
Notes Indenture Trustee, with respect to the Assignors, of the benefit of any
exculpatory provisions, presumptions, indemnities, or reliance rights contained
in the Indenture, and the Assignors expressly agree that as between themselves
and the Senior Second Lien Notes Indenture Trustee, the Senior Second Lien
Notes Indenture Trustee shall have such benefit with respect to all actions or
omissions by the Senior Second Lien Notes Indenture Trustee pursuant to this
Agreement.  For all purposes of this
Agreement, the Senior Second Lien Notes Indenture Trustee may (a) rely in
good faith, as to matters of fact, on any representation of fact believed by
the Senior Second Lien Notes Indenture Trustee to be true (without any duty of
investigation) and that is contained in a written certificate of any authorized
representative of the Assignors, or of the Collateral Agent, (b) rely in
good faith, as to matters of law, on any advice received from its legal
counsel, and shall have no liability for any action or omission taken in
reliance thereon, and (c) assume in good faith (without any duty or investigation),
and rely upon, the genuineness, due authority, validity and accuracy of any
certificate, instrument, notice, or other document believed


 


45





















 


by it in good faith to be genuine
and presented by the proper person. 
Nothing in this Agreement shall be construed to limit or foreclose
claims of, or payments to, U.S. Bank National Association in its capacity as
Trustee under the Indenture with respect to any fees, expenses, costs or
indemnities owing to it pursuant to the Indenture arising from or in connection
with its service as Trustee thereunder.


 


10.16       Revolving Agent as Collateral Agent.  From and after the Discharge of LC
Obligations (or, prior to the Discharge of LC Obligations, if the Collateral
Agent resigns pursuant to Section 9 of Annex D), unless otherwise agreed
to in writing by the then Collateral Agent and the Revolving Administrative
Agent, the “Collateral Agent” hereunder shall be deemed to be the Revolving
Administrative Agent under the Credit Agreement, and the parties hereto shall
use commercially reasonable efforts to cooperate in effectuating such change in
Collateral Agents, and the Revolving Administrative Agent shall
thereupon succeed to and become vested with all of the rights, powers, privileges,
duties and obligations of the retiring Collateral Agent hereunder and the
retiring Collateral Agent shall be discharged from its duties and obligations
hereunder.


 


*     *     *     


 


46





















 


IN WITNESS WHEREOF, the parties hereto have
caused this Agreement to be executed and delivered as of the date first above
written.


 


CLEAN HARBORS, INC. 

ALTAIR DISPOSAL SERVICES, LLC

BATON ROUGE DISPOSAL, LLC

BRIDGEPORT DISPOSAL, LLC

CH INTERNATIONAL HOLDINGS, INC.

CLEAN HARBORS ANDOVER, LLC

CLEAN HARBORS ANTIOCH, LLC

CLEAN HARBORS ARAGONITE, LLC

CLEAN HARBORS ARIZONA, LLC

CLEAN HARBORS OF BALTIMORE, INC.

CLEAN HARBORS BATON ROUGE, LLC

CLEAN HARBORS BDT, LLC

CLEAN HARBORS BUTTONWILLOW, LLC

CLEAN HARBORS CHATTANOOGA, LLC

CLEAN HARBORS COFFEVILLE, LLC

CLEAN HARBORS COLFAX, LLC

CLEAN HARBORS DEER PARK, L.P.

CLEAN HARBORS DEER TRAIL, LLC

CLEAN HARBORS DISPOSAL SERVICES, INC.

CLEAN HARBORS FINANCIAL SERVICES COMPANY

CLEAN HARBORS FLORIDA, LLC

CLEAN HARBORS GRASSY MOUNTAIN, LLC

CLEAN HARBORS KANSAS, LLC

CLEAN HARBORS LAPORTE, L.P.

CLEAN HARBORS LAUREL, LLC

CLEAN HARBORS LONE MOUNTAIN, LLC

CLEAN HARBORS LONE STAR CORP.

CLEAN HARBORS LOS ANGELES, LLC

CLEAN HARBORS (MEXICO), INC.

CLEAN HARBORS OF TEXAS, LLC

CLEAN HARBORS PECATONICA, LLC

CLEAN HARBORS PLAQUEMINE, LLC

CLEAN HARBORS PPM, LLC

CLEAN HARBORS REIDSVILLE, LLC

CLEAN HARBORS SAN JOSE, LLC

CLEAN HARBORS TENNESSEE, LLC

CLEAN HARBORS WESTMORLAND, LLC

CLEAN HARBORS WHITE CASTLE, LLC

CROWLEY DISPOSAL, LLC

DISPOSAL PROPERTIES, LLC

GSX DISPOSAL, LLC


 





















 


HARBOR MANAGEMENT CONSULTANTS, INC.

HARBOR INDUSTRIAL SERVICES TEXAS, L.P.

HILLIARD DISPOSAL, LLC

NORTHEAST CASUALTY REAL PROPERTY, LLC

ROEBUCK DISPOSAL, LLC

SAWYER DISPOSAL SERVICES, LLC

SERVICE CHEMICAL, LLC

TULSA DISPOSAL, LLC

CLEAN HARBORS ENVIRONMENTAL SERVICES, INC

CLEAN HARBORS OF BRAINTREE, INC.

CLEAN HARBORS OF NATICK, INC.

CLEAN HARBORS SERVICES, INC.

MURPHY’S WASTE OIL SERVICE, INC.

CLEAN HARBORS KINGSTON FACILITY CORPORATION

CLEAN HARBORS OF CONNECTICUT, INC.

SPRING GROVE RESOURCE RECOVERY, INC.,

as Assignors


 


 


	
   

  	
  By:

  	
    /s/ Stephen Moynihan

  	
   

  
	
   

  	
   

  	
  Name: Stephen
  Moynihan

  
	
   

  	
   

  	
  Title:  Vice President

  



 


2





















 


	
  CREDIT SUISSE,
  Cayman Islands Branch,

  as Collateral Agent, as Assignee, and as

  LC Facility Administrative Agent

  
	
   

  
	
   

  
	
  By:

  	
    /s/ Paul L. Colon

  	
   

  
	
   

  	
  Name:

  	
  Paul L. Colon

  	
   

  
	
   

  	
  Title:

  	
  Director

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  By:

  	
    /s/ Karim Blasetti

  	
   

  
	
   

  	
  Name:

  	
  Karim Blasetti

  
	
   

  	
  Title:

  	
  Associate

  



 


3





















 


	
  U.S. BANK NATIONAL
  ASSOCIATION,

  solely in its capacity as trustee under the Senior Second Lien

  Notes Indenture for the Senior Second Lien Notes Creditors

  
	
   

  
	
   

  	
   

  
	
  By:

  	
    /s/ David Ganas

  	
   

  
	
   

  	
  Name:

  	
  David Ganas

  
	
   

  	
  Title:

  	
  Assistant Vice President

  
				



 


4





















 


CERTIFICATE OF ACKNOWLEDGMENT


 


	
  STATE OF

  	
   

  	
  )

  	
   

  	
   

  
	
   

  	
  )

  	
   

  	
  ss:

  
	
  COUNTY OF

  	
   

  	
  )

  	
   

  	
   

  
						



 


On the                 
day of [           ], in
the year 2005 before me, the undersigned, a Notary Public in and for said
state, personally appeared                                                           ,
personally known to me or proved to me on the basis of satisfactory evidence to
be the individual(s) whose name(s) is (are) subscribed to the within instrument
and acknowledged to me that he/she/they executed the same in his/her/their
capacity (capacities), and that by his/her/their signature(s) on the
instrument, the individual(s), or the person upon behalf of which the individual(s)
acted, executed the instrument.


 


 


	
   

  	
   

  	
   

  
	
   

  	
  Notary
  Public

  
	
   

  	
   

  
	
   

  	
  My
  Commission Expires:

  	
   

  	
   

  
				



 


5





















 


ANNEX A


 


Form of Trademark Security Agreement


 


 


Trademark Security Agreement,
dated as of
[               ],
by CLEAN HARBORS, INC. (the “Borrower”), CLEAN HARBORS ENVIRONMENTAL
SERVICES, INC. and HARBOR MANAGEMENT CONSULTANTS, INC. (each, a “Pledgor”,
and together with the Borrower, the “Pledgors”), in favor of CREDIT
SUISSE, in its capacity as collateral agent (in such capacity, the “Collateral
Agent”).


 


W  I  T  N  E  S
S  E  T  H:


 


WHEREAS, Pledgors are party to an Amended and
Restated Security Agreement dated as of December 1, 2005 (the “Security
Agreement”) in favor of the Collateral Agent pursuant to which the Pledgors
are required to execute and deliver this Trademark Security Agreement;


 


NOW, THEREFORE, the Pledgors hereby agree
with the Collateral Agent as follows:


 


SECTION 1.           Defined Terms. 
Unless otherwise defined herein, terms defined in the Security Agreement
and used herein have the meaning given to them in the Security Agreement.


 


SECTION 2.           Grant of Security Interest in Trademark Collateral.


 


(a)           Each
Pledgor hereby pledges and grants to the Collateral Agent for the benefit of
the Bank Creditors a lien on and security interest in and to all of its right,
title and interest in, to and under all the following Collateral of such
Pledgor:


 


(1)           Trademarks of such Pledgor listed on Schedule I
attached hereto;


 


(2)           all Goodwill associated with such
Trademarks; and


 


(3)           all Proceeds of any and all of the
foregoing (other than Excluded Collateral).


 


(b)           Each
Pledgor hereby pledges and grants to the Collateral Agent for the benefit of
the Senior Second Lien Notes Creditors a lien on and security interest in and
to all of its right, title and interest in, to and under all the following
Collateral of such Pledgor:


 


(1)           Trademarks of such Pledgor listed on Schedule I
attached hereto;


 


(2)           all Goodwill associated with such
Trademarks; and


 





















 


(3)           all Proceeds of any and all of the
foregoing (other than Second Lien Excluded Collateral).


 


SECTION 3.           Security Agreement. 
The security interest granted pursuant to this Trademark Security
Agreement is granted in conjunction with the security interest granted to the
Collateral Agent pursuant to the Security Agreement and the Pledgor hereby
acknowledges and affirms that the rights and remedies of the Collateral Agent
with respect to the security interest in the Trademarks made and granted hereby
are more fully set forth in the Security Agreement, the terms and provisions of
which are incorporated by reference herein as if fully set forth herein.  In the event that any provision of this
Trademark Security Agreement is deemed to conflict with the Security Agreement,
the provisions of the Security Agreement shall control unless the Collateral
Agent shall otherwise determine.


 


SECTION 4.           Termination. 
Upon the full performance of the Obligations, the Collateral Agent shall
execute, acknowledge and deliver to the Pledgor the proper documents and
instruments acknowledging the release of the security interest in the
Trademarks and Proceeds thereof under this Trademark Security Agreement.


 


[signature page follows]


 


2





















 


IN WITNESS WHEREOF, Pledgor has caused this Trademark Security
Agreement to be executed and delivered by its duly authorized officer as of the
date first set forth above.


 


	
   

  	
  Very truly yours,

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  CLEAN HARBORS, INC.

  
	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  
	
   

  	
   

  
	
   

  	
   

  
	
  Accepted and Agreed:

  	
   

  
	
   

  	
   

  
	
  CREDIT SUISSE, Cayman Islands Branch,

  as Collateral Agent

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
  By:

  	
   

  	
   

  	
   

  
	
   

  	
  Name:

  	
   

  	
   

  
	
   

  	
  Title:

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  By:

  	
   

  	
   

  	
   

  
	
   

  	
  Name:

  	
   

  	
   

  
	
   

  	
  Title:

  	
   

  	
   

  



 





















 


ANNEX B


 


Form of Patent Security Agreement


 


 


Patent Security Agreement,
dated as of
[                                 ],
by CLEAN HARBORS, INC. (the “Pledgor”), in favor of CREDIT SUISSE, in
its capacity as collateral agent pursuant to the Security Agreement referenced
below (in such capacity, the “Collateral Agent”).


 


W  I  T  N  E  S
S  E  T  H:


 


WHEREAS, Pledgor is party to an Amended and
Restated Security Agreement dated as of December 1, 2005 (the “Security
Agreement”) in favor of the Collateral Agent pursuant to which the Pledgor
is required to execute and deliver this Patent Security Agreement;


 


NOW, THEREFORE, Pledgor hereby agrees with
the Collateral Agent as follows:


 


SECTION 1.           Defined Terms. 
Unless otherwise defined herein, terms defined in the Security Agreement
and used herein have the meaning given to them in the Security Agreement.


 


SECTION 2.           Grant of Security Interest in Patent Collateral.


 


(a)           Pledgor
hereby pledges and grants to the Collateral Agent for the benefit of the Bank
Creditors a lien on and security interest in and to all of its right, title and
interest in, to and under all the following Collateral:


 


(1)           Patents of Pledgor listed on Schedule I
attached hereto; and


 


(2)           all Proceeds of any and all of the
foregoing (other than Excluded Collateral).


 


(b)           Pledgor
hereby pledges and grants to the Collateral Agent for the benefit of the Senior
Second Lien Notes Creditors a lien on and security interest in and to all of
its right, title and interest in, to and under all the following Collateral:


 


(1)           Patents of Pledgor listed on Schedule I
attached hereto; and


 


(2)           all Proceeds of any and all of the
foregoing (other than Second Lien Excluded Collateral).


 


SECTION 3.           Security Agreement. 
The security interest granted pursuant to this Patent Security Agreement
is granted in conjunction with the security interest granted to the Collateral
Agent pursuant to the Security Agreement and the Pledgor hereby acknowledges
and


 





















 


affirms that
the rights and remedies of the Collateral Agent with respect to the security
interest in the Patents made and granted hereby are more fully set forth in the
Security Agreement, the terms and provisions of which are incorporated by
reference herein as if fully set forth herein. 
In the event that any provision of this Patent Security Agreement is
deemed to conflict with the Security Agreement, the provisions of the Security
Agreement shall control unless the Collateral Agent shall otherwise determine.


 


SECTION 4.           Termination. 
Upon the full performance of the Obligations, the Collateral Agent shall
execute, acknowledge and deliver to the Pledgor the proper documents and
instruments acknowledging the release of the security interest in the Patents
and Proceeds thereof under this Patent Security Agreement.


 


[signature page follows]


 


2





















 


IN WITNESS WHEREOF, Pledgor has caused this Patent Security Agreement
to be executed and delivered by its duly authorized officer as of the date
first set forth above.


 


	
   

  	
  Very truly yours,

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  CLEAN HARBORS, INC.

  
	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
   

  	
  Name:

  	
   

  
	
   

  	
   

  	
  Title:

  	
   

  
	
   

  	
   

  
	
  Accepted and Agreed:

  	
   

  
	
   

  	
   

  
	
  CREDIT SUISSE,

  as Collateral Agent

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
  By:

  	
   

  	
   

  	
   

  
	
   

  	
  Name:

  	
   

  	
   

  
	
   

  	
  Title:

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  By:

  	
   

  	
   

  	
   

  
	
   

  	
  Name:

  	
   

  	
   

  
	
   

  	
  Title:

  	
   

  	
   

  



 





















 


ANNEX C


 


Form of Copyright Security Agreement


 


 


Copyright Security Agreement,
dated as of
[                       ],
by CLEAN HARBORS, INC. (the “Pledgor”), in favor of CREDIT SUISSE, in
its capacity as collateral agent pursuant to the Security Agreement referenced
below (in such capacity, the “Collateral Agent”).


 


W  I  T  N  E  S
S  E  T  H:


 


WHEREAS, Pledgor is party to an Amended and
Restated Security Agreement dated as of December 1, 2005 (the “Security
Agreement”) in favor of the Collateral Agent pursuant to which the Pledgor
is required to execute and deliver this Copyright Security Agreement;


 


NOW, THEREFORE, Pledgor hereby agrees with
the Collateral Agent as follows:


 


SECTION 1.           Defined Terms. 
Unless otherwise defined herein, terms defined in the Security Agreement
and used herein have the meaning given to them in the Security Agreement.


 


SECTION 2.           Grant of Security Interest in Copyright Collateral.


 


(a)  Pledgor hereby pledges and grants
to the Collateral Agent for the benefit of the Bank Creditors a lien on and security
interest in and to all of its right, title and interest in, to and under all
the following Collateral:


 


(1)           Copyrights of Pledgor listed on Schedule I
attached hereto; and


 


(2)           all Proceeds of any and all of the
foregoing (other than Excluded Collateral).


 


(b)           Pledgor hereby pledges and grants to
the Collateral Agent for the benefit of the Senior Second Lien Notes Creditors
a lien on and security interest in and to all of its right, title and interest
in, to and under all the following Collateral:


 


(1)           Copyrights of Pledgor listed on Schedule I
attached hereto; and


 


(2)           all Proceeds of any and all of the
foregoing (other than Second Lien Excluded Collateral).


 


SECTION 3.           Security Agreement. 
The security interest granted pursuant to this Copyright Security
Agreement is granted in conjunction with the security interest granted to the
Collateral Agent pursuant to the Security Agreement and the Pledgor hereby
acknowledges and


 





















 


affirms that
the rights and remedies of the Collateral Agent with respect to the security
interest in the Copyrights made and granted hereby are more fully set forth in
the Security Agreement, the terms and provisions of which are incorporated by
reference herein as if fully set forth herein. 
In the event that any provision of this Copyright Security Agreement is
deemed to conflict with the Security Agreement, the provisions of the Security
Agreement shall control unless the Collateral Agent shall otherwise determine.


 


SECTION 4.           Termination. 
Upon the full performance of the Obligations, the Collateral Agent shall
execute, acknowledge and deliver to the Pledgor the proper documents and
instruments acknowledging the release of the security interest in the
Copyrights and Proceeds thereof under this Copyright Security Agreement.


 


[signature page follows]


 


2





















 


IN WITNESS WHEREOF, Pledgor has caused this Copyright Security
Agreement to be executed and delivered by its duly authorized officer as of the
date first set forth above.


 


	
   

  	
  Very truly yours,

  
	
   

  	
   

  
	
   

  	
  CLEAN HARBORS, INC.

  
	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  
	
   

  	
   

  
	
  Accepted and Agreed:

  	
   

  
	
   

  	
   

  
	
  CREDIT SUISSE,

  as Collateral Agent

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
  By:

  	
   

  	
   

  	
   

  
	
   

  	
  Name:

  	
   

  	
   

  
	
   

  	
  Title:

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  By:

  	
   

  	
   

  	
   

  
	
   

  	
  Name:

  	
   

  	
   

  
	
   

  	
  Title:

  	
   

  
	
   

  	
   

  



 





















 


ANNEX D

to

SECURITY AGREEMENT


 


THE COLLATERAL AGENT AND

SECURED CREDITOR ACKNOWLEDGMENTS(1)


 


 


1.             Appointment.  The Secured Creditors, by their acceptance of
the benefits of the Security Agreement to which this Annex D is attached (the “Security
Agreement”) hereby irrevocably designate Credit Suisse (and any successor
Collateral Agent) to act as specified herein, therein and in the other Security
Documents.  Each Secured Creditor hereby
irrevocable authorizes, and each holder of any Obligation by the acceptance of
such Obligation and by the acceptance of the benefits of the Security Agreement
and the other Security Documents shall be deemed irrevocably to authorize, the
Collateral Agent to take such action on its behalf under the provisions of the
Security Documents and any instruments and agreements referred to therein and
to exercise such powers and to perform such duties hereunder and thereunder as
are specifically delegated to or required of the Collateral Agent by the terms
hereof and thereof and such other powers as are reasonably incidental
thereto.  The Collateral Agent may
perform any of its duties hereunder or thereunder by or through its authorized
agents, sub-agents or employees.  The
Collateral Agent, for itself and its successors and assigns, hereby accepts
such appointment created hereby upon the terms and conditions specified herein.


 


2.             Nature of Duties.  (a)  The Collateral Agent shall have no
duties or responsibilities except those expressly set forth herein or in the
respective Security Documents.  The
duties of the Collateral Agent shall be mechanical and administrative in
nature; the Collateral Agent shall not have by reason of this Agreement, any
other Credit Document or any other Secured Debt Agreement a fiduciary
relationship in respect of any Secured Creditor; and nothing in this Agreement,
any other Credit Document or any other Secured Debt Agreement, expressed or
implied, is intended to or shall be so construed as to impose upon the
Collateral Agent any obligations in respect of the Security Documents except as
expressly set forth herein and therein.


 


(b)           The Collateral Agent shall not be
responsible for insuring the Collateral (which term, for purposes of this Annex
D, shall include the “collateral” under all of the Security Documents)
or for the payment of taxes, charges or assessments or discharging of Liens
upon the collateral or otherwise as to the maintenance of the Collateral.


 


 










(1)                                  Unless otherwise
defined herein, all capitalized terms used herein (x) and defined in the
Security Agreement, are used herein as therein defined and (y) not defined in
the Security Agreement, are used herein as defined in the Credit Agreement referenced
in the Security Agreement.


 





















 


(c)           The Collateral Agent shall not be
required to ascertain or inquire as to the performance by any Assignor of any
of the covenants or agreements contained in any Security Document, any other
Credit Document or any other Secured Debt Agreement.


 


(d)           The Collateral Agent shall be under
no obligation or duty to take any action under, or with respect to, any Security
Document if taking such action (i) would subject the Collateral Agent to a
tax in any jurisdiction where it is not then subject to a tax or (ii) would
require the Collateral Agent to qualify to do business, or obtain any license,
in any jurisdiction where it is not then so qualified or licensed or (iii) would
subject the Collateral Agent to in personam jurisdiction in any locations where
it is not then so subject.


 


(e)           Notwithstanding any other provision
of this Annex D, neither the Collateral Agent nor any of its officers, directors,
employees, affiliates or agents shall, in its individual capacity, be
personally liable for any action taken or omitted to be taken by it in
accordance with, or pursuant to this Annex D of, the Security Agreement or any
other Security Document, unless caused by its or their own gross negligence or
willful misconduct (as determined by a court of competent jurisdiction in a
final and non-appealable decision).


 


(f)            Notwithstanding any other provision
of any Security Document or this Annex D, the Collateral Agent shall not be
responsible or liable for perfecting, or maintaining the priority of, the Liens
created pursuant to the Security Documents.


 


3.             Lack of Reliance on the
Collateral Agent.  Independently and
without reliance upon the Collateral Agent, each Secured Creditor, to the
extent it deems appropriate, has made and shall continue to make (i) its
own independent investigation of the financial condition and affairs of each
Assignor and its Subsidiaries in connection with the making and the continuance
of the Obligations and the taking or not taking of any action in connection
therewith, and (ii) its own appraisal of the creditworthiness of each
Assignor and its Subsidiaries, and the Collateral Agent shall have no duty or
responsibility, either initially or on a continuing basis, to provide any
Secured Creditor with any credit or other information with respect thereto,
whether coming into its possession before the extension of any Obligations or
the purchase of any Notes or Senior Second Lien Notes or at any time or times
thereafter.  The Collateral Agent shall
not be responsible or liable in any manner whatsoever to any Secured Creditor
for the correctness of any recitals, statements, information, representations
or warranties herein, in the other Secured Debt Agreements or in any document,
certificate or other writing delivered in connection herewith or therewith or
for the execution, effectiveness, genuineness, validity, enforceability, perfection,
collectibility, priority or sufficiency of any Security Document or the
security interests granted thereunder or the financial condition of any
Assignor or any Subsidiary of any Assignor or be required to make any inquiry
concerning either the performance or observance of any of the terms, provisions
or conditions of any Security Document or any other Secured Debt Agreement, or
the financial condition of any Assignor or any Subsidiary of any Assignor, or
the existence or possible existence of any Default or Event of Default (or
similar term) under any Secured Debt Agreement. 
The Collateral Agent makes no representations as to the value or condition
of the Collateral or any part thereof, or as to the title of any Assignor
thereto or as to the security afforded by any Security Document.


 


2





















 


4.             Certain Rights of the Collateral
Agent.  (a)  No Secured Creditor
shall have the right to take any action with respect to (or against) any
Collateral, or cause the Collateral Agent to take any action with respect to
(or against) any Collateral, with only the Required Secured Creditors having
the right to direct the Collateral Agent by written instruction in accordance
with Section 4(d) hereof to take any such action.  Except for actions required to be taken by
the Collateral Agent in accordance with the respective Security Documents, if
the Collateral Agent shall request instructions from the Required Secured
Creditors with respect to any act or action (including failure to act) in
connection with any Security Document and the Required Secured Creditors shall
fail to instruct the Collateral Agent with respect to any act or action (including
failure to act and refrain from acting) in connection with such Security
Document, the Collateral Agent shall be entitled to refrain from such act or
taking such action unless and until it shall have received express instructions
from the Required Secured Creditors and to the extent requested, appropriate
indemnification in respect of actions to be taken, and the Collateral Agent
shall not incur liability to any Secured Creditor or any other Person by reason
of so refraining.  Without limiting the
foregoing, (x) no Secured Creditor shall have any right of action whatsoever
against the Collateral Agent as a result of the Collateral Agent acting or
refraining from acting hereunder or under the Security Documents in accordance
with the instructions of the Required Secured Creditors or as expressly
provided in the Security Documents and (y) without limiting preceding clause
(x), the Collateral Agent shall not be liable to any Secured Creditor or any
other Person for any action taken or omitted to be taken by it hereunder or
under the Security Documents, unless caused by its gross negligence or willful
misconduct (as determined by a court of competent jurisdiction in a final and
non-appealable decision).


 


(b)           Notwithstanding anything to the
contrary contained herein (and subject to Section 2(f) of this Annex
D), the Collateral Agent is authorized, but not obligated, (i) to take any
action reasonably required to perfect or continue the perfection of the liens
on the Collateral for the benefit of the Secured Creditors and (ii) when
instructions from the Required Secured Creditors have been requested by the
Collateral Agent but have not yet been received, to take any action which the
Collateral Agent, in good faith, believes to be reasonably required to promote
and protect the interests of the Secured Creditors in the Collateral; provided
that once instructions have been received, the actions of the Collateral Agent
shall be governed thereby and the Collateral Agent shall not take any further
action which would be contrary thereto.


 


(c)           Notwithstanding anything to the
contrary contained herein or in any Security Document, the Collateral Agent
shall not be required to take or refrain from taking, and shall have no
liability to any Secured Creditor for taking or refraining from taking, any
action that exposes or, in the good faith judgment of the Collateral Agent may
expose, the Collateral Agent or its officers, directors, agents or employees to
personal liability, unless the Collateral Agent shall be adequately indemnified
as provided herein or that is, or in the good faith judgment of the Collateral
Agent may be, contrary to any Security Document, any other Secured Debt
Agreement or applicable law.


 


3





















 


(d)           For purposes of each
Security Document, each Secured Creditor shall appoint a Person as such Secured
Creditor’s authorized representative (each, an “Authorized Representative”)
for the purpose of giving or delivering any notices or instructions
thereunder.  Any instructions given by
the Required Secured Creditors to the Collateral Agent pursuant to the Security
Documents shall be in writing signed by the Authorized Representative(s) of the
various Secured Creditors comprising the Required Secured Creditors with respect
to such instructions and such instructions shall certify to and for the benefit
of the Collateral Agent that the Secured Creditors issuing or delivering such
instructions constitute the Required Secured Creditors for purposes of this Section 4
and the instructions being delivered. 
The Collateral Agent shall be entitled to conclusively and absolutely
rely on such instructions and certification as to the identity of the Required
Secured Creditors with respect to such instructions, and the Collateral Agent
shall not be required to take any action, and shall not be liable to any
Secured Creditor for failing or refusing to act, pursuant to any instructions
which are not given or delivered by the Authorized Representatives of various
Secured Creditors comprising the Required Secured Creditors with respect to
such instructions.  The parties hereto
acknowledge that the Authorized Representative of each of the Secured Creditors
shall be (x) the Collateral Agent, in the case of the Bank Creditors and (y)
the Senior Second Lien Notes Indenture Trustee, in the case of the Senior Second
Lien Notes Creditors.


 


5.             Reliance; Interpretation.  The Collateral Agent shall be entitled to
rely, and shall be fully protected in relying, upon, any note, writing,
resolution, notice, statement, certificate, telex, teletype or telescopes
message, cablegram, radiogram, order or other document or telephone message
signed, sent or made by the proper Person or entity, and, with respect to all
legal matters pertaining hereto or to the Security Documents and its duties
thereunder and hereunder, upon advice of counsel selected by it.  If, in its good faith judgment, the
Collateral Agent reasonably believes that any instructions given or delivered
pursuant to any Security Document require judicial interpretation or are
invalid or otherwise contrary to the provisions of any Security Document, any
other Secured Debt Agreement or applicable law, the Collateral Agent shall have
the right to petition a court of competent jurisdiction to determine the
validity of, or otherwise interpret, any such instructions.  In such event, the Collateral Agent shall not
be required to carry out such instructions unless directed to do so, or it is
determined that it may do so, by such court.


 


6.             Indemnification.  To the extent the Collateral Agent is not
reimbursed and indemnified by the Assignors under the Security Documents, the
Secured Creditors (other than Senior Second Lien Notes Creditors) will
reimburse and indemnify the Collateral Agent, in proportion to their respective
outstanding principal amounts (including, for this purpose, the Stated Amount
of outstanding Letters of Credit) of Obligations, for and against any and all
liabilities, obligations, losses, damages, penalties, actions, judgments,
suits, costs, expenses or disbursements of any kind or nature whatsoever which
may be imposed on, incurred by or asserted against the Collateral Agent in
performing its duties hereunder, or in any way relating to or arising out of
its actions as Collateral Agent in respect of the Security Documents except for
those resulting solely from the Collateral Agent’s own gross negligence or willful
misconduct (as determined by a court of competent jurisdiction in a final and
non-appealable decision).  The indemnities
set forth in this Section 6 shall survive the repayment of all
Obligations, with the


 


4





















 


respective indemnification at such time to be based upon the
outstanding principal amounts (determined as described above) of Obligations at
the time of the respective occurrence upon which the claim against the
Collateral Agent is based or, if same is not reasonably determinable, based
upon the outstanding principal amounts (determined as described above) of
Obligations as in effect immediately prior to the termination of the Security
Documents.  The indemnities set forth in
this Section 6 are in addition to any indemnities provided by the Secured
Parties to the Collateral Agent pursuant to the Credit Agreement, with the
effect being that the Bank Creditors shall be responsible for indemnifying the
Collateral Agent to the extent the Collateral Agent does not receive payments pursuant
to this Section 6 from the Secured Creditors (other than Senior Second
Lien Notes Creditors) (although in such event, and upon the payment in full of
all such amounts owing to the Collateral Agent by the Bank Creditors, the Bank
Creditors shall be subrogated to any rights of the Collateral Agent to receive
payment from the Assignors).


 


7.             The Collateral Agent in its
Individual Capacity.  With respect to
its obligations as a Secured Creditor under any Secured Debt Agreement to which
the Collateral Agent is a party, and to act as agent under one or more of such
Secured Debt Agreements, the Collateral Agent shall have the rights and powers
specified therein and herein for a “Secured Creditor”, and may exercise
the same rights and powers as though it were not performing the duties
specified herein; and the terms “Secured Creditors”, “Lenders”, “Required
Secured Creditors”, “Other Creditors”, “holders of Notes”, or
any similar terms shall, unless the context clearly otherwise indicates,
include the Collateral Agent in its individual capacity.  The Collateral Agent and its affiliates may
accept deposits from, lend money to, and generally engage in any kind of
banking, investment banking, trust or other business with any Assignor or any
Affiliate or Subsidiary of any Assignor as if it were not performing the duties
specified herein or in the other Secured Debt Agreements, and may accept fees
and other consideration from the Assignors for services in connection with the
Credit Agreement, the other Secured Debt Agreements and otherwise without
having to account for the same to the Secured Creditors.


 


8.             Holders.  The Collateral Agent may deem and treat the
payee of any Note or the registered owner of any Senior Second Lien Note as the
owner thereof for all purposes hereof unless and until written notice of the
assignment, transfer or endorsement thereof, as the case may be, shall have
been filed with the Collateral Agent. 
Any request, authority or consent of any Person who, at the time of
making such request or giving such authority or consent, is the holder of any
Note or the registered owner of any Senior Second Lien Note, shall be final and
conclusive and binding on any subsequent holder, transferee, assignee or
endorsee, as the case may be, of such Note or Senior Second Lien Note, or of
any Note or Senior Second Lien Note issued in exchange therefor.


 


9.             Resignation, Removal and
Appointment of Successor Collateral Agent. 
(a)  The Collateral Agent may resign from the performance of all of
its functions and duties hereunder and under the other Security Documents at
any time by giving 20 Business Days’ prior written notice to the Borrower and
the Authorized Representatives.  Such
resignation shall take effect upon the appointment of a successor Collateral
Agent pursuant to clause (b) or (c) below.


 


5





















 


(b)           If a successor Collateral Agent shall
not have been appointed within said 20 Business Day period by the Required
Secured Creditors, the Collateral Agent, with the consent (unless an Event of
Default shall exist, in which case no such consent shall be required) of the
Parent (which consent shall not be unreasonably withheld or delayed) shall then
appoint a successor Collateral Agent who shall serve as Collateral Agent hereunder
or thereunder until such time, if any, as the Required Secured Creditors
appoint a successor Collateral Agent as provided above.


 


(c)           If no successor Collateral Agent has
been appointed pursuant to clause (b) above by the 20th Business Day after
the date of such notice of resignation was given by the Collateral Agent, as a
result of a failure by the Parent to consent to the appointment of such a
successor Collateral Agent, (i) the Required Secured Creditors shall then
appoint a successor Collateral Agent who shall serve as Collateral Agent
hereunder or thereunder or (ii) if the Required Secured Creditors shall
have failed to appoint a successor Collateral Agent by the 25th Business Day
after the date such notice of resignation was given by the Collateral Agent,
the Collateral Agent may appoint (or petition a court of competent jurisdiction
to appoint) a successor Collateral Agent who shall serve as Collateral Agent
hereunder or thereunder, in either such case until such time, if any, as the
Required Secured Creditors appoint a successor Collateral Agent as provided
above.


 


(d)           Notwithstanding the foregoing, in
connection with a replacement or refinancing of the Credit Agreement and the
other Credit Documents related thereto, the requisite lenders under such new
Credit Agreement may remove the Collateral Agent and appoint a successor
Collateral Agent hereunder on behalf of all Secured Creditors and, in the
absence of such removal and appointment by such new lenders, the Parent may so
remove and/or appoint such successor Collateral Agent; provided that,
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 and shall be a party to the replacement or refinancing Credit
Agreement (or an Affiliate of a party thereto). 
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, duties and obligations of the
retiring Collateral Agent hereunder and the retiring Collateral Agent shall be
discharged from its duties and obligations hereunder.  In this connection, each Secured Creditor
shall, if requested by the successor Collateral Agent and, in the case of the
Senior Second Lien Notes, without the necessity of obtaining the consent of the
holders of Notes, so acknowledge such appointment in writing in form and
substance reasonably satisfactory to the successor Collateral Agent.


 


(e)           Notwithstanding anything to the
contrary contained herein, after the First Lien Obligations Termination Date,
the Required Secured Creditors may remove the Collateral Agent by an instrument
in writing executed by the Required Secured Creditors and, thereupon, appoint a
successor Collateral Agent designated by the Required Secured Creditors, effective
as provided in Section 9(f) below.


 


(f)            The resignation or removal of a
Collateral Agent shall become effective only upon the execution and delivery of
such documents or instruments as are necessary to


 


6





















 


transfer the rights and obligations of the Collateral Agent under the
Security Documents and the recording or filing of such documents, instruments
or financing statements as may be necessary to maintain the priority and
perfection of any security interest granted by the Security Documents.  Copies of each such document or instrument
shall be delivered to each of the Borrower, the Collateral Agent and the Senior
Second Lien Notes Indenture Trustee.  The
appointment of a successor Collateral Agent pursuant to this Section 9
shall become effective upon the acceptance of such appointment (and execution
by such successor of the documents, instruments or financing statements
referred to above) and such successor Collateral Agent shall succeed to and become
vested with all the rights, powers, privileges and duties of the retiring
Collateral Agent.


 


(g)           After any resignation or removal
hereunder of the Collateral Agent, the indemnification provisions specified in
this Annex D and in the Security Documents shall continue to inure to its
benefit as to any actions taken or omitted to be taken by it in connection with
its agency hereunder while it was Collateral Agent.


 


10.           Co-Collateral Agents; Separate
Collateral Agents.  (a)  If at
any time or times it shall be necessary or prudent in order to conform to any
law of any jurisdiction in which any of the Collateral shall be located, or the
Collateral Agent shall be advised by counsel, satisfactory to it, that it is
necessary or prudent in the interest of the Collateral Agent or the Secured
Creditors, then the Collateral Agent shall be entitled to appoint one or more
sub-collateral agents or co-collateral agents, and in such case the Collateral
Agent, the Borrower and each of the other Assignors having an interest in the
Collateral located in the jurisdiction in which such separate or sub-collateral
agent or co-collateral agent is to act shall execute and deliver all
instruments and agreements necessary or proper to constitute another bank or
trust company, or one or more individuals approved by the Collateral Agent,
either to act as co-collateral agent or co-collateral agents jointly with the
Collateral Agent originally named herein or any successor or successors, or to
act as a separate or sub-collateral agent or agents of the Collateral Agent and
the Secured Creditors in respect of any or all of the Collateral.  If the Borrower and each of the other Assignors
having an interest in the Collateral located in the jurisdiction in which such
separate or sub-collateral agent or co-collateral agent is to act shall not
have joined in the execution of such instruments or agreements within 10 days
after the receipt of a written request from the Collateral Agent so to do, or
if a Default or an Event of Default shall be continuing, the Collateral Agent
may act under the foregoing provisions of this Section 10 without the
concurrence of the Borrower and the other Assignors, and the Borrower and each
of the other Assignors hereby irrevocably appoint the Collateral Agent as their
agent and attorney to act for them under the foregoing provisions of this Section 10
in either of such contingencies.


 


(b)           Every separate or sub-collateral
agent (and all references herein to a “separate collateral agent” shall
be deemed to refer also to a “sub-collateral agent” or a “collateral
sub-agent”) and every co-collateral agent, other than any collateral agent
which may be appointed as successor to any Collateral Agent, shall, to the
extent permitted by applicable law, be appointed and act and be such, subject
to the following provisions and conditions, namely:


 


(i)            all rights,
remedies, powers, duties and obligations conferred upon, reserved to or imposed
upon the Collateral Agent in respect of the custody, control and


 


7





















 


management of
monies, papers or securities shall be exercised solely by the Collateral Agent
hereunder;


 


(ii)           all rights,
remedies, powers, duties and obligations conferred upon, reserved to or imposed
upon the Collateral Agent hereunder shall be conferred, reserved or imposed and
exercised or performed by the Collateral Agent and such separate collateral
agent or separate collateral agents or co-collateral agent or co-collateral
agents, jointly or severally, as shall be provided in the instrument appointing
such separate collateral agent or separate collateral agents or co-collateral
agent or co-collateral agents, except to the extent that, under any law of any
jurisdiction in which any particular act or acts are to be performed, the
Collateral Agent shall be incompetent or unqualified to perform such act or
acts, in which event such rights, remedies, powers, duties and obligations
shall be exercised and performed by such separate collateral agent or separate
collateral agents or co-collateral agent or co-collateral agents;


 


(iii)          no power given
hereby to, or which it is provided hereby may be exercised by, any such
separate collateral agent or separate collateral agents or co-collateral agent
or co-collateral agents shall be exercised hereunder by such separate
collateral agent or separate collateral agents or co-collateral agent or
co-collateral agents except (subject to applicable law) jointly with, or with
the consent or at the direction in writing of, the Collateral Agent (which
direction shall be made in accordance with the provisions of the Security
Agreement);


 


(iv)          all provisions of
the respective Security Documents relating to the Collateral Agent or to
releases of Collateral shall apply to any such separate collateral agent or
separate collateral agents or co-collateral agent or co-collateral agents;


 


(v)           no collateral agent
constituted under this Section 10 shall be personally liable by reason of
any act or omission of any other separate or co-collateral agent or the Collateral
Agent hereunder; and


 


(vi)          the Collateral Agent
at any time by an instrument in writing, executed by it, may accept the
resignation of any such separate collateral agent or co-collateral agent and
the Collateral Agent or the Required Secured Creditors may individually or
jointly remove any such separate collateral agent or co-collateral agent, and
in that case, by an instrument in writing executed by the Collateral Agent or the
Required Secured Creditors, as the case may be, and the Collateral Agent or the
Required Secured Creditors, as the case may be, may appoint a successor to such
separate collateral agent or co-collateral agent, as the case may be, anything
herein contained to the contrary notwithstanding.  If the Borrower and each of the other
Assignors shall not have joined in the execution of any such instrument within
10 days after the receipt of a written request from the Collateral Agent so to
do, or if a Default or an Event of Default shall be continuing, the Collateral
Agent shall have the power to accept the resignation of or remove any such
separate collateral agent or co-collateral agent and to appoint a successor to
such separate collateral agent or co-collateral agent, as the case may be, and
to execute any such instrument without the concurrence of the Borrower or such
other Assignor, and the Borrower and


 


8





















 


each of the
other Assignors hereby irrevocably appoint the Collateral Agent their agent and
attorney to act for them in such connection in either of such contingencies.  If the Collateral Agent shall have appointed
a separate collateral agent or separate collateral agents or co-collateral
agent or co-collateral agents as above provided, the Collateral Agent may at
any time, by an instrument in writing, accept the resignation of or remove any
such separate collateral agent or co-collateral agent, the successor to any
such separate collateral agent or co-collateral agent to be appointed by the
Borrower and each of the other Assignors and the Collateral Agent, or by the
Collateral Agent alone, as hereinabove provided in this Section 10.


 


11.           Acknowledgment of Priorities of
Security Interests and Liens.  (a) 
Each of the Secured Creditors acknowledges and agrees (w) to the relative
priorities as to the Collateral (and the application of the proceeds therefrom)
as provided in the Security Documents (including Section 7.5 of the
Security Agreement) and acknowledges and agrees that such priorities (and the application
of proceeds from the Collateral) shall not be affected or impaired in any
manner whatsoever including, without limitation, on account of (i) the
invalidity, irregularity, diminution in value or unenforceability of all or any
part of any Secured Debt Agreement or any of the Obligations thereunder, (ii) the
actual date and time of creation, execution, delivery, recording, filing,
attachment or perfection of any security interests in the Collateral, (iii) any
nonperfection of any Lien purportedly securing any of the Obligations (including,
without limitation, whether any such Lien is now perfected, hereafter ceases to
be perfected, is avoidable by any bankruptcy trustee or otherwise is set aside,
invalidated or lapses), (iv) any amendment, change or modification of any
Secured Debt Agreement, (v) any impairment, modification, change, exchange,
release or subordination of or limitation on, any liability of, or stay of
actions or lien enforcement proceedings against, any Assignor, its property, or
its estate in bankruptcy resulting from any bankruptcy, arrangement,
readjustment, composition, liquidation, rehabilitation, similar proceeding or
otherwise involving or affecting any Assignor, (vi) any distribution of the
Collateral upon the liquidation or dissolution of any Assignor, or the winding
up of the assets or business of any Assignor, (vii) the initiation of any
bankruptcy, moratorium, reorganization or other insolvency proceeding with
respect to any Assignor or (viii) the taking of possession of any of the
Collateral by the Collateral Agent or any of the Secured Creditors, (y) that
the grants of security under the Security Documents constitute two separate and
distinct grants of security, one in favor of the Collateral Agent for the
benefit of the Bank Creditors and the second in favor of the Collateral Agent
for the benefit of the Senior Second Lien Notes Creditors and (z) that Senior
Second Lien Notes Creditors’ claims against the Assignors in respect of the Collateral
constitute second priority claims separate and apart (and of a different class
and claim) from the Bank Creditors’ claims against the Assignors in respect of
the Collateral.


 


(b)           Each Secured Creditor, by its
acceptance of the benefits hereunder and of the Security Documents, hereby
agrees for the benefit of the other Secured Creditors that, to the extent any
additional or substitute collateral for any of the Obligations of the type
covered by the Security Documents delivered by an Assignor to or for the
benefit of any Secured Creditor, such collateral shall be subject to the
provisions of this Annex D and of the Security Documents.


 


9





















 


(c)           Each of the Secured Creditors hereby
agrees not to challenge or question in any proceeding the validity or enforceability
of any Security Document (in each case as a whole or any term or provision
contained therein) or the validity of any Lien or financing statement in favor
of the Collateral Agent for the benefit of the Secured Creditors as provided in
the respective Security Document, or the relative priority of any such Lien.


 


(d)           If any Secured Creditor shall acquire
by indemnification, subrogation, contract or otherwise (including pursuant to
the Security Documents), any lien, estate, right or other interest in, or
possession or control of, any of the assets of any Assignor that would
otherwise constitute Collateral to secure (or providing security for) the
respective Obligations owed to such Secured Creditor, that lien, estate, right
or other interest shall, and any such possession or control shall, be held for
the benefit of the Secured Creditors under the applicable Security Documents
and shall be subject to the relative priorities set forth in the respective Security
Documents.


 


12.           Sharing Arrangements.  (a)  The Secured Creditors hereby agree
that the provisions of the Security Documents with respect to allocations,
priorities and distributions of proceeds of the Collateral shall prevail
notwithstanding any event or circumstance, including, without limitation, in
the event that, through the operation of any bankruptcy, reorganization,
insolvency or other laws or otherwise, any Secured Creditor’s security interest
in the Collateral is avoided in whole or in part or is enforced with respect to
some, but not all, of the respective Obligations then outstanding.


 


(b)           The Secured Creditors agree that none
of them shall be entitled to benefit from any avoidance action affecting or
otherwise relating to any distribution or allocation made in accordance with
the Security Documents, whether by preference or otherwise, it being understood
and agreed that the benefit of any such avoidance action otherwise allocable to
them shall instead be allocated and turned over for application in accordance
with the priorities set forth in the respective Security Documents.


 


(c)           In the event that any payment or
distribution shall be received by any Secured Creditor in a manner that is inconsistent
with the provisions of Section 7.5 of the Security Agreement, such payment
or distribution shall be held by the respective Secured Creditor for the
benefit of, and shall be paid over or delivered to, the respective Secured
Creditors entitled thereto for application to such Secured Creditors’ Obligations
(including, without limitation, all interest that accrues after the
commencement of any case, proceeding or other action relating to the bankruptcy,
insolvency, reorganization or similar proceeding of any Assignor at the rate
provided for in the respective documentation for such Obligations, whether or
not a claim for post-petition interest is allowed in any such proceeding) in
accordance with Section 7.5 of the Security Agreement.


 


13.           Provisions in the Event of
Insolvency Proceedings.  Without limiting
the other provisions of this Annex D, upon the commencement of a case under the
Bankruptcy Code by or against any Assignor:


 


10





















 


(a)           The Security Documents shall remain
in full force and effect and enforceable pursuant to their respective terms in
accordance with Section 510(a) of the Bankruptcy Code, and all
references herein to such Assignor shall be deemed to apply to such entity as
debtor-in-possession and to any trustee in bankruptcy for the estate of such
entity.


 


(b)           In any such case under the Bankruptcy
Code, each Senior Second Lien Notes Creditor agrees not to take any action or
vote in any way so as to contest (1) the validity or enforceability of any
of the Security Documents or any of the Obligations thereunder, (2) the
validity, priority or enforceability of the Liens, mortgages, assignments and
security interests granted pursuant to the Security Documents with respect to
the First Lien Obligations, or (3) the relative rights and duties of the
holders of the First Lien Obligations and the Senior Second Lien Notes
Obligations granted and/or established in any Security Document with respect to
such Liens, mortgages, assignments, and security interests.


 


(c)           So long as any First Lien Obligations
are outstanding, without the express written consent of the Required Secured
Creditors, none of the Senior Second Lien Notes Creditors shall (i) with
respect to any rights under any Secured Debt Agreement or applicable law, seek
in respect of any part of the Collateral or proceeds thereof or any Lien which
may exist thereon, any relief from or modification of the automatic stay as
provided in Section 362 of the Bankruptcy Code or seek or accept any form
of adequate protection under either or both Sections 362 and 363 of the
Bankruptcy Code with respect thereto except, with respect to the Senior Second
Lien Notes Obligations, to the extent that their receipt of any such adequate
protection would not reduce (or would not have the effect of reducing) or adversely
affect the adequate protection that the Bank Creditors otherwise would be
entitled to receive (it being understood that, in any event, (A) any such
adequate protection shall only be afforded to the Senior Second Lien Notes Creditors
if the Bank Creditors are satisfied with the adequate protection afforded to
the Bank Creditors and (B) the Senior Second Lien Notes Creditors’ receipt
of any such adequate protection shall be subject to the application of proceeds
Section set forth in Section 7.5 of the Security Agreement), (ii) oppose
or object to any Bank Creditor obtaining a Lien or grant of administrative
claim in connection with a grant of adequate protection, use of cash collateral
or post-petition financing under Section 362, 363 or 364 of the Bankruptcy
Code, (iii) oppose or object to the use of cash collateral by an Assignor,
(iv) oppose or object to any post-petition financing (including any
debtor-in-possession financing) provided by any of the Bank Creditors or
provided by a third party pursuant to Section 364 of the Bankruptcy Code
(including on a priming basis) on terms acceptable to the Required Secured
Creditors, (v) oppose or object to or withhold consent from the
disposition of assets by any Assignor under Section 363(b) or (f) of
the Bankruptcy Code, (vi) oppose, object to, or vote against any plan of
reorganization or disclosure statement the terms of which are consistent with
the rights of the Bank Creditors under the Security Documents under which the
Liens, mortgages, assignments and security interests and the priority thereof
are granted and established, (vii) make an election pursuant to Section 1111(b) of
the Bankruptcy Code, (viii) oppose or object to the determination of the
extent of any Liens held by any of the Bank Creditors or the value of any
claims of Bank Creditors under Section 506(a) of the Bankruptcy Code,
or (ix) oppose or object to the payment of interest and expenses under
Sections 506(b) and (c) of the Bankruptcy Code.


 


11





















 


(d)           In the event that any of the First
Lien Obligations shall be paid in full and subsequently, for whatever reason (including,
but not limited to, an order or judgment for disgorgement of a preference under
Title 11 of the United Stated Code, or any similar law, or the settlement of
any claim in respect thereof), formerly paid or satisfied First Lien
Obligations become unpaid or unsatisfied, the terms and conditions of this
Annex D shall be fully applicable thereto until all such First Lien Obligations
are again paid in full in cash.


 


14.           Special Releases and Waivers.  (a)  Each Secured Creditor agrees that
neither the Collateral Agent nor the Required Secured Creditors (in directing
the Collateral Agent to take any action with respect to the Collateral) shall
have any duty or obligation to realize first upon any type of Collateral or to
sell, dispose of or otherwise liquidate all or any portion of the Collateral in
any manner that would maximize the return to any Secured Creditors holding Obligations
(whether Credit Document Obligations or Senior Second Lien Notes Obligations),
notwithstanding that the order and timing of any such realization, sale,
disposition or liquidation may affect the amount of proceeds actually received
by such Secured Creditors from such realization, sale, disposition or liquidation.


 


(b)           Each of the Senior Second Lien Notes
Creditors waives any claim which each such Senior Second Lien Notes Creditor
may now or hereafter have against the Bank Creditors (or their representatives)
arising out of (i) any and all actions which the Collateral Agent or the
Bank Creditors take or omit to take (including, without limitation, actions
with respect to the creation, perfection or continuation of Liens on the
Collateral, actions with respect to the occurrence of an Event of Default,
actions with respect to the foreclosure upon, sale, release, or depreciation
of, or failure to realize upon, any of the security for the Obligations and
actions with respect to the collection of any claim for all or any part of the
Obligations from any account debtor, guarantor or any other party) in
accordance with the respective Secured Debt Agreements or any other agreement
related thereto or to the collection of the Obligations or the valuation, use,
protection or release of the security for the Obligation, (ii) the
Collateral Agent’s or the Bank Creditors’ election, in any proceeding
instituted under the Bankruptcy Code, of the application of Section 1111(b) of
the Bankruptcy Code and/or (iii) any borrowing of, or grant of a security
interest or administrative expense priority under Section 364 of the Bankruptcy
Code to, any Assignor as debtor-in-possession.


 


15.           Right to Amend, Etc.  As between the Bank Creditors on the one hand
and the Senior Second Lien Notes Creditors on the other hand, it is agreed that
the Bank Creditors may at any time and from time to time, in their sole
discretion, and without any obligation to give any notice or receive any
consent from any Senior Second Lien Notes Creditor, in its capacity as such, (i) change
the manner, place or terms of payment, or change or extend the time of payment
of, or renew, alter, refinance, increase or add to the First Lien Obligations, (ii) obtain,
release, or dispose of any Collateral for the First Lien Obligations (subject,
however, to Sections 10.2 and 10.8 of the Security Agreement), or (iii) amend
or supplement in any manner the Security Agreement and the other Credit
Documents or any other agreements or instruments evidencing, securing or
relating to the First Lien Obligations (subject, however, in the case of the
First Lien Obligations, to Section 10.2 of the Security Agreement), and
the provisions of this Annex D shall continue in full force and effect with
respect to all such First Lien Obligations.


 


12





















 


16.           Nature of Obligations;
Post-Petition Interest.  Each Senior
Second Lien Notes Creditor hereby acknowledges and agrees that (i) the
Senior Second Lien Notes Creditor’s claims against the Assignors in respect of
the Collateral constitute junior claims separate and apart (and of a different
class and claim) from the senior claims of the Bank Creditors against the
Assignors in respect of the Collateral and (ii) the First Lien Obligations
include all interest that accrues after the commencement of any case,
proceeding or other action relating to the bankruptcy, insolvency,
reorganization or similar proceeding of any Assignor at the rate provided for
in the respective Secured Debt Agreements governing the same, whether or not a
claim for post-petition interest is allowed in any such case, proceeding or
other action.  To further effectuate the
intent of the parties as provided in the immediately preceding sentence, if it
is held that the claims against the Assignors in respect of the Collateral
constitute only one secured claim (rather than separate classes of senior and
junior claims), then each Senior Second Lien Notes Creditor hereby acknowledges
and agrees that all distributions pursuant to Section 7.5 of the Security
Agreement or otherwise shall be made as if there were separate classes of
senior and junior secured claims against the Assignors in respect of the Collateral
(with the effect being that, to the extent that the aggregate value of the
Collateral is sufficient (for this purpose ignoring all claims held by the
Senior Second Lien Notes Creditors), the Bank Creditors shall be entitled to
receive, in addition to amounts distributed to them in respect of principal,
prepetition interest and other claims, all amounts owing in respect of
post-petition interest at relevant contract rate (even though such claims may
or may not be allowed in whole or in part in the respective bankruptcy,
insolvency, reorganization or similar proceeding) before any distribution is
made in respect of the claims held by the Senior Second Lien Notes Creditors,
with the Senior Second Lien Notes Creditors hereby acknowledging and agreeing
to turn over to the holders of the First Lien Obligations all amounts otherwise
received or receivable by it to the extent needed to effectuate the intent of
this sentence even if such turn-over of amounts has the effect of reducing the
amount of the claim of the Senior Second Lien Notes Creditors.


 


17.           Each of the agreements and
acknowledgments made by each Secured Creditor is made on behalf of itself and
its successors and assigns and is deemed effective by virtue of such Secured
Creditors acceptance of the benefits of the Security Agreement and the other
Security Documents.


 


13





















 


Exhibit A-1


 


Perfection Certificate


 





















 


Exhibit A-2


 


Perfection Certificate Supplement