THIS SECOND SUPPLEMENTAL INDENTURE, effective as of May 7, 1999, among
Safety-Kleen Services, Inc. (formerly LES, Inc.), a Delaware corporation (the
"Company"), Safety-Kleen Corp. (formerly Laidlaw Environmental Services, Inc.),
a Delaware corporation (the "Parent Guarantor"), SK Services, L.C. ("SK
Services") and SK Services (East), L.C. ("SK Services East"), both SK Services
and SK Services East are Utah limited liability companies, and The Bank of Nova
Scotia Trust Company of New York, as trustee (the "Trustee").
WHEREAS, the Company, the Guarantors, and the Trustee entered into an
Indenture dated as of May 29, 1998 (the "Indenture") to provide for the issuance
of the Company's 9 1/4 % Senior Subordinated Notes due 2008;
WHEREAS, the Company, the Parent Guarantor, the Trustee and SK Europe,
Inc. entered into the First Supplement Indenture dated December 18,1998 (the
"First Supplemental Indenture");
WHEREAS, Safety-Kleen (Delaware), Inc., a wholly-owned subsidiary of
Safety-Kleen (Lone and Grassy Mountain), Inc., which is a wholly-owned
subsidiary of the Company, acquired an additional 20% ownership of each of SK
Services and SK Services East so that it now holds 100% of each of SK Services
and SK Services East;
WHEREAS, pursuant to Sections 1307 and 1308 of the Indenture, SK Services
and SK Services East, as Subsidiary Guarantors, are each required to enter into
this Second Supplemental Indenture (the "Second Supplemental Indenture");
WHEREAS, the Company, the Parent Guarantor, SK Services, SK Services East
and the Trustee are authorized to enter into this Second Supplemental Indenture;
NOW, THEREFORE, for and in consideration of the premises and the mutual
covenants contained in this Second Supplemental Indenture and for other good and
valuable consideration, the receipt and sufficiency of which are herein
acknowledged, the Company, the Parent Guarantor, SK Services, SK Services East
and the Trustee hereby agree for the equal and the ratable benefit of all
Holders of the Securities as follows:
ARTICLE ONE
Definitions
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1.1 Definitions. For purposes of this Second Supplemental Indenture, the
terms defined in the recitals shall have the meanings therein specified; any
terms defined in the Indenture and not defined herein shall have the same
meanings herein as therein defined; and references to Articles or Sections
shall, unless the context indicates otherwise, be references to Articles or
Sections of the Indenture.
ARTICLE TWO
GUARANTEES OF SECURITIES AND OTHER PROVISIONS
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2.1 SK Services Guarantee.
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(a) SK Services hereby jointly and severally, fully, absolutely,
unconditionally and irrevocably guarantees to each Holder of a Security
authenticated and delivered by the Trustee, and to the Trustee for its benefit
and the benefit of each Holder, the punctual payment and performance when due of
all Indenture Obligations which, for purposes of its Securities Guarantee, shall
also be deemed to include all commissions, fees, charges, costs and other
expenses (including reasonable legal fees and disbursements of counsel) arising
out of or incurred by the Trustee or the Holders in connection with the
enforcement of any Securities Guarantee. Without limiting the generality of the
foregoing, SK Services' liability shall extend to all amounts that constitute
part of the Indenture Obligations and would be owed by the Company to such
Holder or the Trustee under the Securities or the Indenture but for the fact
that they are unenforceable, reduced, limited, suspended or not allowable due to
the existence of a bankruptcy, reorganization or similar proceeding involving
the Company.
(b) SK Services and by its acceptance of a Security each Holder hereby
confirms that it is the intention of all such parties that the guarantee by SK
Services pursuant to its Securities Guarantee not constitute a fraudulent
transfer or conveyance for purposes of the Federal Bankruptcy Code, the Uniform
Fraudulent Conveyance Act, the Uniform Fraudulent Transfer Act of any similar
federal or state law or the provisions of its local law relating to fraudulent
transfer or conveyance. To effectuate the foregoing intention, the Holders and
SK Services hereby irrevocably agree that the obligations of such Guarantor
under its Securities Guarantee shall be limited to the maximum amount as shall
after giving effect to all other contingent and fixed liabilities of SK Services
and after giving effect to any collections from or payments made by or on behalf
of any other Guarantor in respect of the obligations of such other Guarantor
under its Securities Guarantee or pursuant to paragraph (c) of Section 1301 of
the Indenture, result in the obligations of SK Services under its Securities
Guarantee not constituting a fraudulent conveyance or fraudulent transfer under
federal or state law.
(c) SK Services, the Trustee and each Holder by its acceptance of a
Security hereby agrees that the Securities Guarantee of SK Services provided
hereunder shall be subject to all terms, provisions and conditions in the
Indenture that relate to a Securities Guarantee (including, without limitation,
Articles XIII and XIV of the Indenture). SK Services further agrees to be bound
by, and to comply with, all provisions of the Indenture and Securities Guarantee
that are applicable to a Subsidiary Guarantor.
3.2 SK Services East Guarantee.
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(a) SK Services East hereby jointly and severally, fully, absolutely,
unconditionally and irrevocably guarantees to each Holder of a Security
authenticated and delivered by the Trustee, and to the Trustee for its benefit
and the benefit of each Holder, the punctual payment and performance when due of
all Indenture Obligations which, for purposes of its Securities Guarantee, shall
also be deemed to include all commissions, fees, charges, costs and other
expenses (including reasonable legal fees and disbursements of counsel) arising
out of or incurred by the Trustee or the Holders in connection with the
enforcement of any Securities Guarantee. Without limiting the generality of the
foregoing, SK Services East's liability shall extend to all amounts that
constitute part of the Indenture Obligations and would be owed by the Company to
such Holder or the Trustee under the Securities or the Indenture but for the
fact that they are unenforceable, reduced, limited, suspended or not allowable
due to the existence of a bankruptcy, reorganization or similar proceeding
involving the Company.
(b) SK Services East and by its acceptance of a Security each Holder
hereby confirms that it is the intention of all such parties that the guarantee
by SK Services East pursuant to its Securities Guarantee not constitute a
fraudulent transfer or conveyance for purposes of the Federal Bankruptcy Code,
the Uniform Fraudulent Conveyance Act, the Uniform Fraudulent Transfer Act of
any similar federal or state law or the provisions of its local law relating to
fraudulent transfer or conveyance. To effectuate the foregoing intention, the
Holders and SK Services East hereby irrevocably agree that the obligations of
such Guarantor under its Securities Guarantee shall be limited to the maximum
amount as shall after giving effect to all other contingent and fixed
liabilities of SK Services East and after giving effect to any collections from
or payments made by or on behalf of any other Guarantor in respect of the
obligations of such other Guarantor under its Securities Guarantee or pursuant
to paragraph (c) of Section 1301 of the Indenture, result in the obligations of
SK Services East under its Securities Guarantee not constituting a fraudulent
conveyance or fraudulent transfer under federal or state law.
(c) SK Services East, the Trustee and each Holder by its acceptance of a
Security hereby agrees that the Securities Guarantee of SK Services East
provided hereunder shall be subject to all terms, provisions and conditions in
the Indenture that relate to a Securities Guarantee (including, without
limitation, Articles XIII and XIV of the Indenture). SK Services East further
agrees to be bound by, and to comply with, all provisions of the Indenture and
Securities Guarantee that are applicable to a Subsidiary Guarantor.
3.3 Execution and Delivery of Guarantee.
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The delivery of any Security by the Trustee, after the authentication
thereof under the Indenture, shall constitute due delivery of the Securities
Guarantee on behalf of SK Services and SK Services East.
3.4 Amendment of Schedule A.
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In order to reflect the Securities Guarantee of SK Services and SK
Services East, Schedule A of the Indenture and Schedule A of the First
Supplemental Indenture is hereby replaced by Schedule A attached to this Second
Supplemental Indenture.
3.5 No Personal Liability.
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No stockholder, officer, director, employee or incorporator, past,
present or future, of SK Services or SK Services East, as such, shall have any
personal liability under the Securities Guarantee by reason of his, her or its
status as such stockholder, officer, director, employee or incorporator.
ARTICLE THREE
Miscellaneous
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4.1 Effect of the Second Supplemental Indenture. This Second Supplemental
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Indenture supplements the First Supplemental Indenture and the Indenture and
shall be a part and subject to all the terms thereof. Except as supplemented
hereby, the Indenture, the First Supplemental Indenture and the Securities
issued thereunder shall continue in full force and effect.
4.2 Counterparts. This Second Supplemental Indenture may be executed in
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counterparts, each of which shall be deemed an original, but all of which shall
together constitute one and the same instrument.
4.3 GOVERNING LAW. THIS SECOND SUPPLEMENTAL INDENTURE SHALL BE GOVERNED
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BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
4.4 Recitals. The Trustee shall not be responsible for any recital herein
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(other than the sixth recital as it applies to the Trustee) as such recitals
shall be taken as statements of the Company, or the validity of the execution by
SK Services or SK Services East of this Second Supplemental Indenture. The
Trustee makes no representations as to the validity or sufficiency of this
Second Supplemental Indenture.
IN WITNESS WHEREOF, the parties hereto have caused this Second
Supplemental Indenture to be duly executed on this 9th day of August 1999.
SAFETY-KLEEN SERVICES, INC.
By: /s/ Kenneth W. Winger
-------------------------
Name: Kenneth W. Winger
Title: President
SAFETY-KLEEN CORP.
By: /s/ Kenneth W. Winger
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Name: Kenneth W. Winger
Title: President and Chief Executive Officer
SK SERVICES, L.C.
By: /s/ Kenneth W. Winger
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Name: Kenneth W. Winger
Title: President and Sole Member
Safety-Kleen (Delaware), Inc.
SK SERVICES (EAST), L.C.
By: /s/ Kenneth W. Winger
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Name: Kenneth W. Winger
Title: President and Sole Member
Safety-Kleen (Delaware), Inc.
THE BANK OF NOVA SCOTIA TRUST
COMPANY OF NEW YORK, as Trustee
By: /s/ George E. Timmes
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Name: George E. Timmes
Title: Vice President
SCHEDULE A
SUBSIDIARY GUARANTORS
Safety-Kleen Systems, Inc.
Safety-Kleen (Altair), Inc.
Safety-Kleen (Aragonite), Inc.
Safety-Kleen (Bartow), Inc.
Safety-Kleen (Baton Rouge), Inc.
Safety-Kleen (BDT), Inc.
Safety-Kleen (Bridgeport), Inc.
Safety-Kleen (Buttonwillow), Inc.
Safety-Kleen (California), Inc.
Safety-Kleen (Chattanooga), Inc.
Safety-Kleen (Clive), Inc.
Safety-Kleen (Colfax), Inc.
Safety-Kleen (Crowley), Inc.
Safety-Kleen (Custom Transport), Inc.
Safety-Kleen (Deer Park), Inc.
Safety-Kleen (Deer Trail), Inc.
Safety-Kleen (Delaware), Inc.
Safety-Kleen (Encotec), Inc.
Safety-Kleen (FS), Inc.
Safety-Kleen (Gloucester), Inc.
Safety-Kleen (GS), Inc.
Safety-Kleen Holdings, Inc.
Safety-Kleen (La Porte), Inc.
Safety-Kleen (Lone and Grassy Mountain) Inc.
Safety-Kleen (Los Angeles), Inc.
Safety-Kleen (Minneapolis), Inc.
Safety-Kleen (Mt. Pleasant), Inc.
Safety-Kleen (Nashville), Inc.
Safety-Kleen (NE), Inc.
Safety-Kleen (Pecatonica), Inc.
Safety-Kleen (Pinewood), Inc.
Safety-Kleen (Plaquemine), Inc.
Safety-Kleen (PPM), Inc.
Safety-Kleen (Puerto Rico), Inc.
Safety-Kleen (Roebuck), Inc.
Safety-Kleen (Rosemount), Inc.
Safety-Kleen (San Antonio), Inc.
Safety-Kleen (Sawyer), Inc.
Safety-Kleen (TG), Inc.
Safety-Kleen (Tipton), Inc.
Safety-Kleen (TS), Inc.
Safety-Kleen (Tulsa), Inc.
Safety-Kleen (San Jose), Inc.
Safety-Kleen (Sussex), Inc.
Safety-Kleen (White Castle), Inc.
Safety-Kleen (Wichita), Inc.
Safety-Kleen (Westmorland), Inc.
Safety-Kleen (WT), Inc.
Safety-Kleen OSCO Holdings, Inc.
Safety-Kleen Chemical Services, Inc.
SK Europe, Inc.
SK Services, L.C.
SK Services (East), L.C.
Ninth Street Properties, Inc.
Chemclear, Inc. of Los Angeles
USPCI, Inc. of Georgia
GSX Chemical Services of Ohio, Inc.
LEMC, Inc.
Dirt Magnet, Inc.
The Midway Gas & Oil Company
Elgint Corp.
Safety-Kleen Envirosystems Company
Safety-Kleen Envirosystems Company of Puerto Rico, Inc.
Petrocon, Inc.
Phillips Acquisition Corp.
ViroGroup, Inc.
SK Insurance Company
SK Real Estate, Inc.
Safety-Kleen International, Inc.
Safety-Kleen Oil Recovery Co.
Safety-Kleen Oil Services, Inc.
The Solvents Recovery Service of New Jersey, Inc.