exv4wfw129






Exhibit 4(f)(129)


EXECUTION
COPY


CREDIT ACCEPTANCE CORPORATION,

as Issuer,




the GUARANTORS named herein,

as Guarantors,




and




U.S. Bank National Association,

as Trustee




 






INDENTURE

Dated as of February 1, 2010



 






9.125% First Priority Senior Secured Notes due 2017








 









 








TABLE OF CONTENTS




Page




ARTICLE I




Definitions and Incorporation by Reference



	 	 	 	 	 
	SECTION 1.01. Definitions
	 	 	1	 
	SECTION 1.02. Other Definitions
	 	 	32	 
	SECTION 1.03. Incorporation by Reference of Trust Indenture Act
	 	 	33	 
	SECTION 1.04. Rules of Construction
	 	 	34	 






ARTICLE II




The Notes



	 	 	 	 	 
	SECTION 2.01. Form and Dating
	 	 	35	 
	SECTION 2.02. Execution and Authentication
	 	 	35	 
	SECTION 2.03. Registrar and Paying Agent
	 	 	35	 
	SECTION 2.04. Paying Agent To Hold Money in Trust
	 	 	36	 
	SECTION 2.05. Holder Lists
	 	 	36	 
	SECTION 2.06. Transfer and Exchange
	 	 	36	 
	SECTION 2.07. Replacement Notes
	 	 	37	 
	SECTION 2.08. Outstanding Notes
	 	 	37	 
	SECTION 2.09. Temporary Notes
	 	 	37	 
	SECTION 2.10. Cancellation
	 	 	37	 
	SECTION 2.11. Registered Holders
	 	 	38	 
	SECTION 2.12. CUSIP Numbers, ISINs, etc
	 	 	38	 
	SECTION 2.13. Issuance of Additional Notes
	 	 	38	 
	SECTION 2.14. Defaulted Interest
	 	 	38	 






ARTICLE III




Redemption



	 	 	 	 	 
	SECTION 3.01. Notices to Trustee
	 	 	39	 
	SECTION 3.02. Selection of Notes to Be Redeemed
	 	 	39	 
	SECTION 3.03. Notice of Redemption
	 	 	39	 
	SECTION 3.04. Effect of Notice of Redemption
	 	 	39	 
	SECTION 3.05. Deposit of Redemption Price
	 	 	40	 
	SECTION 3.06. Notes Redeemed in Part
	 	 	40	 
	SECTION 3.07. Optional Redemption
	 	 	40	 






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ARTICLE IV




Covenants



	 	 	 	 	 
	SECTION 4.01. Payment of Notes
	 	 	41	 
	SECTION 4.02. SEC Reports
	 	 	41	 
	SECTION 4.03. Limitation on Indebtedness
	 	 	43	 
	SECTION 4.04. Limitation on Restricted Payments
	 	 	46	 
	SECTION 4.05. Dividend and Other Payment Restrictions Affecting Subsidiaries
	 	 	51	 
	SECTION 4.06. Limitation on Asset Sales
	 	 	53	 
	SECTION 4.07. Limitation on Affiliate Transactions
	 	 	57	 
	SECTION 4.08. Limitation on Line of Business
	 	 	59	 
	SECTION 4.09. Change of Control
	 	 	59	 
	SECTION 4.10. Limitation on Liens
	 	 	60	 
	SECTION 4.11. Additional Guarantors
	 	 	61	 
	SECTION 4.12. Impairment of Security Interest
	 	 	61	 
	SECTION 4.13. Limitation on Investment Company Status
	 	 	62	 
	SECTION 4.14. Maintenance of Financial Ratios
	 	 	63	 
	SECTION 4.15. Further Instruments and Acts
	 	 	63	 






ARTICLE V




Successor Company



	 	 	 	 	 
	SECTION 5.01. When Company May Merge or Transfer Assets
	 	 	63	 






ARTICLE VI




Defaults and Remedies



	 	 	 	 	 
	SECTION 6.01. Events of Default
	 	 	66	 
	SECTION 6.02. Acceleration
	 	 	68	 
	SECTION 6.03. Waiver of Past Defaults
	 	 	69	 
	SECTION 6.04. Other Remedies
	 	 	69	 
	SECTION 6.05. Compliance Certificate
	 	 	69	 
	SECTION 6.06. Control by Majority
	 	 	70	 
	SECTION 6.07. Limitation on Suits
	 	 	70	 
	SECTION 6.08. Rights of Holders to Receive Payment
	 	 	71	 
	SECTION 6.09. Collection Suit by Trustee
	 	 	71	 
	SECTION 6.10. Trustee May File Proofs of Claim
	 	 	71	 
	SECTION 6.11. Priorities
	 	 	71	 
	SECTION 6.12. Undertaking for Costs
	 	 	72	 
	SECTION 6.13. Waiver of Stay or Extension Laws
	 	 	72	 





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ARTICLE VII




Trustee



	 	 	 	 	 
	SECTION 7.01. Duties of Trustee
	 	 	72	 
	SECTION 7.02. Rights of Trustee
	 	 	73	 
	SECTION 7.03. Individual Rights of Trustee
	 	 	74	 
	SECTION 7.04. Trustee’s Disclaimer
	 	 	74	 
	SECTION 7.05. Notice of Defaults
	 	 	75	 
	SECTION 7.06. Reports by Trustee to Holders
	 	 	75	 
	SECTION 7.07. Compensation and Indemnity
	 	 	75	 
	SECTION 7.08. Replacement of Trustee
	 	 	76	 
	SECTION 7.09. Successor Trustee by Merger
	 	 	76	 
	SECTION 7.10. Eligibility; Disqualification
	 	 	77	 
	SECTION 7.11. Preferential Collection of Claims Against Company
	 	 	77	 






ARTICLE VIII




Discharge of Indenture; Defeasance



	 	 	 	 	 
	SECTION 8.01. Satisfaction and Discharge
	 	 	77	 
	SECTION 8.02. Legal Defeasance and Covenant Defeasance
	 	 	78	 
	SECTION 8.03. Conditions to Defeasance
	 	 	79	 
	SECTION 8.04. Application of Trust Money
	 	 	80	 
	SECTION 8.05. Repayment to Company
	 	 	80	 
	SECTION 8.06. Indemnity for Government Securities
	 	 	80	 
	SECTION 8.07. Reinstatement
	 	 	81	 





 
ARTICLE IX




Amendments



	 	 	 	 	 
	SECTION 9.01. Without Consent of Holders
	 	 	81	 
	SECTION 9.02. With Consent of Holders
	 	 	82	 
	SECTION 9.03. Notice of Amendments
	 	 	83	 
	SECTION 9.04. Compliance with Trust Indenture Act
	 	 	83	 
	SECTION 9.05. Revocation and Effect of Consents and Waivers
	 	 	84	 
	SECTION 9.06. Notation on or Exchange of Notes
	 	 	84	 
	SECTION 9.07. Trustee To Sign Amendments
	 	 	84	 
	SECTION 9.08. Payment for Consent
	 	 	84	 






ARTICLE X




Guarantees



	 	 	 	 	 
	SECTION 10.01. Guarantees
	 	 	85	 
	SECTION 10.02. Limitation on Liability
	 	 	86	 






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	SECTION 10.03. Successors and Assigns
	 	 	87	 
	SECTION 10.04. No Waiver
	 	 	87	 
	SECTION 10.05. Modification
	 	 	87	 
	SECTION 10.06. Release of Guarantor
	 	 	87	 
	SECTION 10.07. Contribution
	 	 	88	 
	SECTION 10.08. Non-Impairment
	 	 	88	 






ARTICLE XI




Security Documents



	 	 	 	 	 
	SECTION 11.01. Collateral and Security Documents
	 	 	88	 
	SECTION 11.02. Release of Collateral
	 	 	89	 
	SECTION 11.03. Certificates and Opinions
	 	 	90	 
	SECTION 11.04. Use of Trust Monies
	 	 	91	 






ARTICLE XII




Miscellaneous



	 	 	 	 	 
	SECTION 12.01. Trust Indenture Act Controls
	 	 	91	 
	SECTION 12.02. Notices
	 	 	91	 
	SECTION 12.03. Communication by Holders with Other Holders
	 	 	93	 
	SECTION 12.04. Certificate and Opinion as to Conditions Precedent
	 	 	93	 
	SECTION 12.05. Statements Required in Certificate or Opinion
	 	 	93	 
	SECTION 12.06. When Notes Disregarded
	 	 	93	 
	SECTION 12.07. Rules by Trustee, Paying Agent and Registrar
	 	 	94	 
	SECTION 12.08. Legal Holidays
	 	 	94	 
	SECTION 12.09. Governing Law
	 	 	94	 
	SECTION 12.10. No Recourse Against Others
	 	 	94	 
	SECTION 12.11. Successors
	 	 	94	 
	SECTION 12.12. Multiple Originals
	 	 	94	 
	SECTION 12.13. Table of Contents; Headings
	 	 	94	 
	SECTION 12.14. Severability
	 	 	94	 
	SECTION 12.15. No Adverse Interpretation of Other Agreements
	 	 	95	 





Rule 144A/Regulation S Appendix



Exhibit I — Form of Initial Note



Exhibit II — Form of Exchange Note or Private Exchange Note



Exhibit III — Form of Transferee Letter of Representations





iv











 






     INDENTURE dated as of February 1, 2010, among CREDIT ACCEPTANCE
CORPORATION, a Michigan corporation (together with its successors or
assigns, the “Company”), the Guarantors (as defined below) listed
on the signature pages hereto and U.S. BANK NATIONAL ASSOCIATION, a
national banking association, as trustee.



          Each party agrees as follows for the benefit of the other parties and for the equal and
ratable benefit of the Holders:



ARTICLE I




Definitions and Incorporation by Reference



          SECTION 1.01. Definitions.



          “Acquired Indebtedness” means, with respect to any specified Person, (i) Indebtedness
of any other Person existing at the time such other Person is merged with or into or became a
Subsidiary of such specified Person, including Indebtedness incurred in connection with, or in
contemplation of, such other Person merging with or into or becoming a Subsidiary of such specified
Person, and (ii) Indebtedness secured by a Lien encumbering any asset acquired by such specified
Person.



          “Additional Notes” means Notes issued under this Indenture after the Issue Date and in
compliance with Sections 2.13 and 4.03, it being understood that any Notes issued in exchange for
or replacement of any Initial Note issued on the Issue Date shall not be an Additional Note,
including any such Notes issued pursuant to a Registration Rights Agreement (as defined in the
Appendix).



          “Affiliate” of any Person means (i) any other Person which directly, or indirectly
through one or more intermediaries, controls such Person or (ii) any other Person which directly,
or indirectly through one or more intermediaries, is controlled by or is under common control with
such Person. As used herein, the term “control” means possession, directly or indirectly,
of the power to direct or cause the direction of the management or policies of a Person, whether
through the ownership of voting securities, by contract or otherwise.



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




     (i) 1.0% of the principal amount of such Note; and




     (ii) the excess, if any, of (1) the present value at such Redemption Date of (x) the
redemption price of such Note on February 1, 2014 (such redemption price as set forth in
Section 3.07(b)), plus (y) all required remaining interest payments due on such Note
through February 1, 2014 (but excluding accrued but unpaid interest to such Redemption
Date), computed using a discount rate equal to the



 









 






Treasury Rate as of such Redemption Date
plus 50 basis points; over (2) the principal amount of such Note.




     “Asset Sale” means




     (i) the sale, lease, conveyance or other disposition of any assets or rights
(including by way of a sale and leaseback) by the Company or any Restricted Subsidiary to
any Person other than the Company or any Restricted Subsidiary other than in the ordinary
course of business (provided that the sale, lease, conveyance or other disposition of all
or substantially all of the assets of the Company and the Restricted Subsidiaries, taken as
a whole, shall be governed by the provisions set forth in Sections 4.09 or 5.01 and not by
Section 4.06);




     (ii) the issue or sale by the Company or any Restricted Subsidiaries to any Person
(other than the Company or any Restricted Subsidiaries) of Equity Interests of any of the
Company’s Subsidiaries, and




     (iii) the issue or sale by the Company or any Restricted Subsidiaries to any Person
(other than the Company or any Restricted Subsidiaries) of Equity Interests of any
Guarantor;


in the case of either clause (i) or (ii), whether in a single transaction or a series of related
transactions that have a Fair Market Value in excess of $10,000,000 or for net proceeds in excess
of $10,000,000.





     Notwithstanding the foregoing, the term “Asset Sale” shall not include:




     (i) a disposition that constitutes a Restricted Payment (or would constitute a
Restricted Payment but for the exclusions from the definition thereof) and that is not
prohibited by Section 4.04;




     (ii) the transfer of Dealer Loans or Purchased Contracts or trust certificates issued
to evidence the residual interest in Dealer Loan Pools or Purchased Contracts, and the
participation therein, and related rights and assets in connection with any Permitted
Securitization;




     (iii) the disposition of cash or Cash Equivalents;




     (iv) terminations of Hedging Obligations;




     (v) any financing transaction with respect to assets or rights of the Company or any
Restricted Subsidiary, including any sale and leaseback of assets or rights not prohibited
by Sections 4.03 or 4.10;




     (vi) any surrender or waiver of contract rights or a settlement, release or surrender
of contract, tort or other claims of any kind; and



2









 






     (vii) the grant of any Lien not prohibited by this Indenture and any foreclosure or
exercise in respect thereof.



          “Attributable Debt” in respect of a Sale/Leaseback Transaction means, as at the time
of determination, the present value (discounted at the interest rate borne by the Notes, compounded
annually) of the total obligations of the lessee for rental payments during the remaining term of
the lease included in such Sale/Leaseback Transaction (including any period for which such lease
has been extended); provided, however, that if such Sale/Leaseback Transaction
results in a Capital Lease Obligation, the amount of Indebtedness represented thereby shall be
determined in accordance with the definition of “Capital Lease Obligation.”



          “Average Life” means, as of the date of determination, with respect to any
Indebtedness, the quotient obtained by dividing:




     (i) the sum of the products of the number of years from the date of determination to
the date of each successive scheduled principal payment of or redemption or similar payment
with respect to such Indebtedness multiplied by the amount of such payment by




     (ii) the sum of all such payments.



          “Banking Product Obligations” means any obligations of the Company or any Restricted
Subsidiary owed to any Person in respect of treasury management services (including services in
connection with operating, collections, payroll, trust or other depository or disbursement
accounts, including automated clearinghouse, e-payable, electronic funds transfer, wire transfer,
controlled disbursement, overdraft, depositary, information reporting, lock-box and stop payment
services), commercial credit card and merchant card services, stored valued card services, other
cash management services, lock-box leases and other banking products or services related to any of
the foregoing.




          “Board of Directors” means the Board of Directors of the Company or any committee
thereof duly authorized to act on behalf of such board.




          “Business Day” means each day that is not a Saturday, Sunday or other day on which
banking institutions in New York, New York are authorized or required by law to close.




          “Capital Lease Obligation” means, at the time any determination thereof is to be made,
the amount of the liability in respect of a capital lease that would at such time be required to be
capitalized on a balance sheet in accordance with GAAP.




          “Capital Stock” means (i) in the case of a corporation, corporate stock, (ii) in the
case of an association or business entity, any and all shares, interests, participations, rights or
other equivalents (however designated) of corporate stock, (iii) in the case of a partnership or
limited liability company, partnership or membership interests (whether general or limited) and
(iv) any other interest or participation that






3









 







confers on a Person the right to receive a share of
the profits and losses of, or distributions of assets of, the issuing Person.





     “Cash Equivalents” means:




     (i) obligations (1) issued or directly and unconditionally guaranteed as to interest
and principal by the United States government or (2) issued by any agency of the United
States government the obligations of which are backed by the full faith and credit of the
United States, in each case maturing within 12 months after acquisition thereof, or
certificates representing an ownership interest in any such obligations;




     (ii) securities issued or fully guaranteed by any state of the United States or any
political subdivision of any such state or any public instrumentality thereof, in each case
maturing within one year after acquisition thereof and having, at the time of acquisition,
a rating of at least A-1 from S&P or at least P-1 from Moody’s;




     (iii) demand and time deposit accounts, certificates of deposit and money market
deposits maturing within one year of the date of acquisition thereof issued by a bank or
trust company which is organized under the laws of the United States of America, any state
thereof or any foreign country recognized by the United States of America, and which bank
or trust company has capital, surplus and undivided profits aggregating in excess of
$50,000,000 (or the foreign currency equivalent thereof) and has outstanding debt which is
rated “A” (or such similar equivalent rating) or higher by at least one of Moody’s or S&P
or any money market fund sponsored by a registered broker dealer or mutual fund
distributor;




     (iv) repurchase obligations for underlying securities of the type described in clauses
(ii) and (iii) of this definition entered into with any financial institution meeting the
qualifications specified in such clause (iii);




     (v) commercial paper, maturing not more than one year after the date of acquisition,
issued by a corporation (other than an Affiliate of the Company) organized and in existence
under the laws of the United States of America or any foreign country recognized by the
United States of America with a rating at the time at which any investment therein is made
of “P-1” (or higher) according to Moody’s or “A-1” (or higher) according to S&P; and




     (vi) interests in any investment company or money market fund that invests
substantially all of its assets in instruments of the types described in clauses (i)
through (v) of this definition.




     “Change of Control” means the occurrence of any of the following:




     (i) the sale, lease, transfer, conveyance or other disposition (other than by way of
merger or consolidation), in one or a series of related transactions, of all or



4









 






substantially all of the assets of the Company and the Restricted Subsidiaries taken as a
whole to any “person” (as such term is used in Section 13(d)(3) of the Exchange Act) other
than in the ordinary course of business;




     (ii) the adoption of a plan relating to the liquidation or dissolution of the Company;




     (iii) any “person” (as defined above), other than one or more Permitted Holders, is or
becomes the “beneficial owner” (as such term is defined in Rule 13d-3 and Rule 13d-5 under
the Exchange Act, except that a person shall be deemed to have “beneficial ownership” of
all securities that such person has the right to acquire, whether such right is currently
exercisable or is exercisable only upon the occurrence of a subsequent condition), directly
or indirectly, of more than 50.0% of the Voting Stock of the Company (measured by voting
power rather than number of shares); or




     (iv) the Company consolidates with, or merges with or into, any Person (other than a
Permitted Holder), or any Person (other than a Permitted Holder) consolidates with, or
merges with or into, the Company, in any such event pursuant to a transaction in which any
of the outstanding Voting Stock of the Company is converted into or exchanged for cash,
securities or other property, other than any such transaction where the Voting Stock of the
Company outstanding immediately prior to such transaction is converted into or exchanged
for Voting Stock (other than Disqualified Stock) of the surviving or transferee Person
constituting a majority of the outstanding shares of such Voting Stock of such surviving or
transferee Person (immediately after giving effect to such issuance).



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




          “Collateral” means all the collateral described in the Security Documents.




          “Collateral Agent” means the Collateral Agent, from time to time, under the
Intercreditor Agreement, which initially is Comerica Bank.




          “Collateral Coverage Ratio” means, as of any date of determination, the ratio of (i)
the sum of (x) the book value of all Dealer Loans Receivable with respect to Dealer Loans of the
Company and the Restricted Subsidiaries then constituting Collateral securing the Notes, and (y)(A)
the balance owing in respect of Purchased Contracts then
constituting Collateral securing the Notes, minus (B) unearned income with respect to such
Purchased Contracts and the allowance for credit losses with respect to such Purchased Contracts,
in each case as such amount would be included in the financial statements and related footnotes of
the Company and the Restricted Subsidiaries prepared in accordance with GAAP, and if such amount is
not shown net of such items, then net of any reserves established by the Company as an allowance
for credit losses related to such Purchased Contracts to (ii) the difference of (x) the total
principal amount of Indebtedness (excluding Hedging Obligations) then outstanding consisting of
Credit




5









 







Facility Obligations, Notes Obligations and Permitted Future Secured Indebtedness, minus (y)
the book value of all cash and Cash Equivalents then constituting Collateral securing the Notes and
held by the Collateral Agent.




          “Consolidated Funded Debt” has the meaning ascribed thereto in the Credit Agreement as
in effect on the Issue Date.




          “Consolidated Interest Expense” means, for any period, the total interest expense of
the Company and the Restricted Subsidiaries computed on a consolidated basis under GAAP (other than
non-cash interest expense attributable to convertible indebtedness under Accounting Practices
Bulletin 14-1 or any successor provision), plus, to the extent not included in such total interest
expense, and to the extent incurred by the Company or any Restricted Subsidiaries, without
duplication:





     (i) interest expense attributable to Capital Lease Obligations, the interest portion
of rent expense associated with Attributable Debt in respect of the relevant lease giving
rise thereto, determined as if such lease were a capitalized lease in accordance with GAAP,
and the interest component of any deferred payment obligations;




     (ii) amortization of debt discount (including the amortization of original issue
discount resulting from the issuance of Indebtedness at less than par) and debt issuance
cost; provided, however, that any amortization of bond premium shall be credited to reduce
Consolidated Interest Expense unless, pursuant to GAAP, such amortization of bond premium
has otherwise reduced Consolidated Interest Expense;




     (iii) capitalized interest;




     (iv) non-cash interest expense; provided, however, that any non-cash interest expense
or income attributable to the movement in the mark to mark valuation of Hedging Obligations
or other derivative instruments pursuant to GAAP shall be excluded from the calculation of
Consolidated Interest Expense;




     (v) commissions, discounts and other fees and charges owed with respect to letters of
credit and bankers’ acceptance financing;




     (vi) net payments pursuant to Hedging Obligations;




     (vii) the product of (1) all dividends accrued in respect of all Disqualified Stock of
the Company and all Preferred Stock of any Restricted Subsidiary, in each case, held by
Persons other than the Company or a Restricted Subsidiary (other than dividends payable
solely in Capital Stock (other than Disqualified Stock) of the Company), times (2) a
fraction of the numerator of which is one and the denominator of which is one minus the
effective combined tax rate of the issuer of such Preferred Stock (expressed as a decimal)
for such period (as estimated by the chief financial officer of the Company in good faith);



6









 






     (viii) interest incurred in connection with Investments in discontinued operations;
and




     (ix) interest accruing on any Indebtedness of any other Person to the extent such
Indebtedness is Guaranteed by (or secured by a Lien on the assets of) the Company or any
Restricted Subsidiary.



          “Consolidated Net Income” means, for any period, net earnings (or loss) after income
taxes of the Company and the Restricted Subsidiaries, determined on a consolidated basis for such
Persons, in accordance with GAAP, but excluding:





     (i) net earnings (or loss) of any Restricted Subsidiary accrued prior to the date it
became a Restricted Subsidiary;




     (ii) any gain or loss (net of tax effects applicable thereto) resulting from the sale,
conversion or other disposition of any assets other than intangible assets (so classified
in accordance with GAAP), inventories, accounts receivable and Investments in and
securities of any other person other than in the ordinary course of business;




     (iii) any extraordinary or non-recurring gains or losses (including any gain on sale
generated by a Permitted Securitization, except to the extent the Company or a Guarantor
has received a cash benefit therefrom in the applicable reporting period); and any interest
income generated by a Permitted Securitization, except to the extent the Company or a
Guarantor has received a cash benefit therefrom in the applicable reporting period;




     (iv) any gain (net of tax effects attributable thereto) arising from any reappraisal
or write-up of assets and any gain or loss (net of tax effects attributable thereto)
arising from the non-cash effect of equity compensation expense;




     (v) any portion of the net earnings of any Restricted Subsidiary other than a
Guarantor that for any reason is unavailable for payment of dividends to the Company or any
other Restricted Subsidiary; provided, however, that for purpose of computing the Fixed
Charge Coverage Ratio, net earnings of a Special Purpose Subsidiary shall not be excluded
solely due to restrictions on the payment of dividends contained in Nonrecourse Indebtedness or the constituent documents of such
Special Purpose Subsidiary;




     (vi) any gain or loss (net of tax effects applicable thereto) during such period
resulting from the receipt of any proceeds of any insurance policy; except as set forth
herein, any earnings of any Person acquired by the Company or any Restricted Subsidiary
through the purchase, merger or consolidation or otherwise, or earnings of any Person
substantially all of the assets of which have been acquired by the Company or any
Restricted Subsidiary, for any period prior to the date of acquisition;



7









 






     (vii) net earnings of any Person (other than a Restricted Subsidiary) in which the
Company or any Restricted Subsidiary shall have an ownership interest unless such net
earnings shall actually have been received by the Company or such Restricted Subsidiary in
the form of cash distributions; and




     (viii) any restoration during such period to income of any contingency reserve (other
than any contingency reserve for taxes), except to the extent that provision for such
reserve was made either (1) during such period out of income accrued during such period, or
(2) in connection with the Company’s program of financing Installment Contracts (x) to
provide for warranty claims for which the Company may be responsible, or (y) to cover
credit losses in connection with Dealer Loans Receivable or Purchased Contracts.



          “Consolidated Tangible Net Worth” has the meaning ascribed thereto in the Credit
Agreement as in effect on the Issue Date.




          “Consolidated Total Assets” means, as of any date of determination, the total assets
reflected on the consolidated balance sheet of the Company and the Restricted Subsidiaries as of
the end of the most recently ended fiscal quarter of the Company for which an internal balance
sheet is available, on a consolidated basis determined in accordance with GAAP (and, in the case of
any determination relating to any incurrence of Indebtedness, any Lien or any Investment, on a pro
forma basis including any property or assets being acquired in connection therewith).




          “Credit Agreement” means the Fourth Amended and Restated Credit Agreement, dated
February 7, 2006, among the Company, the Lenders listed therein and Comerica Bank, as
administrative agent and collateral agent, as amended as of the Issue Date.




          “Credit Facility” means the Credit Agreement and one or more additional credit
agreements, including any related notes, guarantees, collateral documents, instruments and
agreement executed in connection therewith, and, in each case, as amended, restated, replaced
(whether upon or after termination or otherwise), Refinanced, supplemented, modified or otherwise
changed (in whole or in part, and without limitation as to amount, terms, conditions, covenants and
other provisions) from time to time.




          “Credit Facility Guarantor” means each of the Company’s Subsidiaries that guarantees
the Company’s obligations under the Credit Facility.




          “Credit Facility Obligations” means the obligations of the Company and the Guarantors
under the Credit Facility.




          “Credit Facility Security Documents” means





     (i) the Security Agreement; and



8









 






     (ii) all security agreements, mortgages, deeds of trust, deeds to secure debt,
pledges, collateral assignments and other agreements or instruments evidencing or creating
any security interest or Lien in favor of the Collateral Agent in any or all of the
Collateral, in each case as such documents may be amended and restated in connection with
this offering, and thereafter as amended, modified, replaced or supplemented from time to
time in accordance with their terms and the Intercreditor Agreement.



          “Dealer” means a Person engaged in the business of the retail sale of new or used
motor vehicles, including both businesses exclusively selling used motor vehicles and businesses
principally selling new motor vehicles, but having a used vehicle department, including any such
Person which constitutes an Affiliate of the Company.




          “Dealer Agreement” means the sales or servicing agreement between the Company or one
or more Restricted Subsidiaries and a participating Dealer which sets forth the terms and
conditions under which the Company or one or more Restricted Subsidiaries (i) accepts, as nominee
for such Dealer, the assignment of Installment Contracts for purposes of administration, servicing
and collection and under which the Company or one or more Restricted Subsidiaries may make loans or
advances to such Dealers included in Dealer Loans Receivable and (ii) accepts outright assignments
of Installment Contracts from Dealers or funds Installment Contracts originated by such Dealer in
the name of the Company or any Restricted Subsidiaries, in each case as such agreements may be in
effect from time to time.




          “Dealer Loan Pool” means a grouping on the books and records of the Company or any
Restricted Subsidiaries of Dealer Loans and bearing the same pool identification number assigned by
the Company’s computer system, and to which Dealer Loans and the related Installment Contracts were
assigned in the ordinary course of the Company’s business in the order such Dealer Loans were made
by the Company and such Installment Contracts were originated by such Dealer without the exercise
of discretion by the Company.




          “Dealer Loans” means the advances of cash made by the Company or any of its
Subsidiaries to a Dealer at the time an Installment Contract is approved, accepted by and assigned
to the Company or any of its Subsidiaries under a Dealer Agreement described in clause (i) of the
definition of Dealer Agreement, against anticipated future
collections on Installment Contracts serviced for such Dealer, as outstanding from time to
time.




          “Dealer Loans Receivable” means the “Loans receivable, net” that would appear in the
consolidated financial statements of the Company and the Restricted Subsidiaries prepared in
accordance with GAAP.




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




9









 








          “Disqualified Stock” means, with respect to any Person, any Capital Stock which by its
terms (or by the terms of any security into which it is convertible or for which it is exchangeable
at the option of the holder) or upon the happening of any event:





     (i) matures or is mandatorily redeemable (other than redeemable only for Capital Stock
of such Person which is not itself Disqualified Stock) pursuant to a sinking fund
obligation or otherwise;




     (ii) is convertible or exchangeable at the option of the holder for Indebtedness or
Disqualified Stock; or




     (iii) is mandatorily redeemable or must be purchased upon the occurrence of certain
events or otherwise, in whole or in part;


in each case on or prior to 91 days after the Stated Maturity of the Notes; provided, however, that
any Capital Stock that would not constitute Disqualified Stock but for provisions thereof giving
holders thereof the right to require such Person to purchase or redeem such Capital Stock upon the
occurrence of an “asset sale” or “change of control” occurring prior to 91 days after the Stated
Maturity of the Notes shall not constitute Disqualified Stock if:





     (i) the “asset sale” or “change of control” provisions applicable to such Capital
Stock are not more favorable to the holders of such Capital Stock than the terms applicable
to the Notes and set forth in Sections 4.06 and 4.09, respectively; and




     (ii) any such requirement only becomes operative after compliance with such terms
applicable to the Notes, including the purchase of any Notes tendered pursuant thereto.



          The amount of any Disqualified Stock that does not have a fixed redemption, repayment or
repurchase price shall be calculated in accordance with the terms of such Disqualified Stock as if
such Disqualified Stock were redeemed, repaid or repurchased on any date on which the amount of
such Disqualified Stock is to be determined pursuant to this Indenture; provided, however, that if
such Disqualified Stock could not be required to be redeemed, repaid or repurchased at the time of
such determination, the redemption, repayment or repurchase price shall be the book value of
such Disqualified Stock as reflected in the most recent financial statements of such Person.




          “EBITDA” for any period means the sum of Consolidated Net Income, plus the following
to the extent deducted in calculating such Consolidated Net Income:





     (i) all income tax expense of the Company and the Restricted Subsidiaries for such
period;




     (ii) Consolidated Interest Expense for such period; and



10









 






     (iii) depreciation and amortization (including amortization or impairment write-offs
of goodwill and other intangibles) of the Company and the Restricted Subsidiaries for such
period to the extent that such depreciation and amortization were deducted in computing
such Consolidated Net Income,


in each case for such period. Notwithstanding the foregoing, the provision for taxes based on the
income or profits of, and the depreciation and amortization of, a Restricted Subsidiary shall be
added to Consolidated Net Income to compute EBITDA only to the extent (and in the same proportion,
including by reason of minority interests) that the net income or loss of such Restricted
Subsidiary was included in calculating Consolidated Net Income and only if a corresponding amount
would be permitted at the date of determination to be dividended to the Company (directly or
indirectly) by such Restricted Subsidiary without prior approval (that has not been obtained),
pursuant to the terms of its charter and all agreements, instruments, judgments, decrees, orders,
statutes, rules and governmental regulations applicable to such Restricted Subsidiary or its
stockholders.




          “Equity Interests” means Capital Stock and all warrants, options or other rights to
acquire Capital Stock (but excluding any debt security that is convertible into, or exchangeable
for, Capital Stock).




          “Exchange Act” means the U.S. Notes Exchange Act of 1934, as amended.




          “Excluded Property” shall include, among other things, the following:





     (i) rights under or with respect to any general intangible, license, permit or
authorization to the extent any such general intangible, license, permit or authorization,
by its terms or by law, prohibits the assignment of, or the granting of a security interest
in the rights of the Company or a Guarantor thereunder or which would be invalid or
enforceable upon any such assignment or grant (the “Restricted Assets”); provided,
however, that (A) the proceeds (as such term is defined in Article or Chapter 9 of the UCC
(as defined in the Security Agreement)) of any Restricted Asset shall continue to be deemed
to be “Collateral” and (B) this provision shall not limit the grant of any Lien on or
assignment of any Restricted Asset to the extent that the UCC (as defined in the Security
Agreement) or any other applicable law provides that such grant of Lien
or assignment is effective irrespective of any prohibitions to such grant provided in
any Restricted Asset (or the underlying documents related thereto);




     (ii) Dealer Loans, Installment Contracts, leases, rights or interests under Dealer
Agreements and related financial assets transferred by the Company or the applicable
Guarantor prior to the Issue Date pursuant to certain permitted securitizations;




     (iii) any equity interests in foreign subsidiaries and domestic subsidiaries other
than the Guarantors and VSC Re Company; and



11









 






     (iv) any applications for trademarks filed in the United States Patent and Trademark
Office on the basis of an intent to use such mark pursuant to 15 U.S.C. § 1051 Section 1(b)
and for which a form evidencing use of the mark in interstate commerce has not yet been
filed with the United States Patent and Trademark Office pursuant to 15 U.S.C. § 1051
Section 1(c) and (1)(d), to the extent that granting a security interest in such trademark
application prior to such filing would adversely affect the enforceability or validity of
such trademark application.



          “Fair Market Value” means, with respect to any asset or property, the price which
could be negotiated in an arm’s length, free market transaction, for cash, between a willing seller
and a willing and able buyer, neither of whom is under undue pressure or compulsion to complete the
transaction. Fair Market Value of the property or assets in question shall be determined in good
faith by an appropriate financial officer of the Company unless such Fair Market Value (excluding
the Fair Market Value of any portion of such asset or property consisting of cash or Cash
Equivalents) is determined to be in excess of $15,000,000, in which case it shall be determined in
good faith by the Board of Directors, whose determination shall be conclusive and, in the case of
any determination made by the Board of Directors, evidenced by a resolution of the Board of
Directors; provided, however, that if the Fair Market Value of the property or assets in question
(excluding any portion of such property or assets consisting of cash or Cash Equivalents) is so
determined to be in excess of $30,000,000 in the case of any determination of Fair Market Value
required by Section 4.04(a)(3)(B) or $20,000,000 in the case of any determination of Fair Market
Value required by any other provisions set forth in Section 4.04, such determination must be
confirmed by an Independent Qualified Party.




          “Fixed Charge Coverage Ratio” as of any date of determination means the ratio of (x)
the aggregate amount of EBITDA for the period of the most recent four consecutive fiscal quarters
for which financial statements of the Company are available to (y) Consolidated Interest Expense
for such four fiscal quarters; provided, however, that:





     (i) if the Company or any Restricted Subsidiary has Incurred any Indebtedness since
the beginning of such period that remains outstanding or if the transaction giving rise to
the need to calculate the Fixed Charge Coverage Ratio is an incurrence of Indebtedness, or
both, EBITDA and Consolidated Interest
Expense for such period shall be calculated after giving effect on a pro forma basis
to such Indebtedness as if such Indebtedness had been incurred on the first day of such
period;




     (ii) if the Company or any Restricted Subsidiary has repaid, repurchased, defeased or
otherwise discharged any Indebtedness since the beginning of such period or if any
Indebtedness is to be repaid, repurchased, defeased or otherwise discharged (in each case
other than Indebtedness incurred under any revolving credit facility unless such
Indebtedness has been permanently repaid and has not been replaced) on the date of the
transaction giving rise to the need to calculate



12









 






the Fixed Charge Consolidated Coverage
Ratio, EBITDA and Consolidated Interest Expense for such period shall be calculated on a
pro forma basis as if such discharge had occurred on the first day of such period and as if
the Company or such Restricted Subsidiary had not earned the interest income actually
earned during such period in respect of cash or Cash Equivalents used to repay, repurchase,
defease or otherwise discharge such Indebtedness;




     (iii) if since the beginning of such period the Company or any Restricted Subsidiary
shall have made any Asset Sale, EBITDA for such period shall be reduced by an amount equal
to EBITDA (if positive) directly attributable to the assets which are the subject of such
Asset Sale for such period, or increased by an amount equal to EBITDA (if negative),
directly attributable thereto for such period and Consolidated Interest Expense for such
period shall be reduced by an amount equal to the Consolidated Interest Expense directly
attributable to any Indebtedness of the Company or any Restricted Subsidiary repaid,
repurchased, defeased or otherwise discharged with respect to the Company and its
continuing Restricted Subsidiaries in connection with such Asset Sale for such period (or,
if the Capital Stock of any Restricted Subsidiary is sold, the Consolidated Interest
Expense for such period directly attributable to the Indebtedness of such Restricted
Subsidiary to the extent the Company and its continuing Restricted Subsidiaries are no
longer liable for such Indebtedness after such sale);




     (iv) if since the beginning of such period the Company or any Restricted Subsidiary
(by merger or otherwise) shall have made an Investment in any Restricted Subsidiary (or any
Person which becomes a Restricted Subsidiary) or an acquisition of assets, including any
acquisition of assets occurring in connection with a transaction requiring a calculation to
be made hereunder, which constitutes all or substantially all of an operating unit of a
business, EBITDA and Consolidated Interest Expense for such period shall be calculated
after giving pro forma effect thereto (including the incurrence of any Indebtedness) as if
such Investment or acquisition had occurred on the first day of such period; and




     (v) if since the beginning of such period any Person (that subsequently became a
Restricted Subsidiary or was merged with or into the Company or any Restricted Subsidiary
since the beginning of such period) shall have made any Asset Sale, any Investment or
acquisition of assets that would have required an
adjustment pursuant to clause (3) or (4) above if made by the Company or a Restricted
Subsidiary during such period, EBITDA and Consolidated Interest Expense for such period
shall be calculated after giving pro forma effect thereto as if such Asset Sale, Investment
or acquisition had occurred on the first day of such period.



          For purposes of this definition, whenever pro forma effect is to be given to an acquisition of
assets, the amount of income or earnings relating thereto and the amount of Consolidated Interest
Expense associated with any Indebtedness incurred in connection therewith, the pro forma
calculations shall be determined in good faith by a




13









 







responsible financial or accounting Officer of
the Company. If any Indebtedness bears a floating rate of interest and is being given pro forma
effect, the interest on such Indebtedness shall be calculated as if the rate in effect on the date
of determination had been the applicable rate for the entire period (taking into account any
interest rate hedging agreement applicable to such Indebtedness if such agreement has a remaining
term in excess of 12 months). If any Indebtedness is incurred under a revolving credit facility
and is being given pro forma effect, the interest on such Indebtedness shall be calculated based on
the average daily balance of such Indebtedness for the four fiscal quarters subject to the pro
forma calculation to the extent that such Indebtedness was incurred solely for working capital
purposes.




          “Founder Group” means (i) Donald A. Foss and any current or former spouse of Donald A.
Foss; (ii) a lawful lineal descendant of Donald A. Foss or the spouse of any such descendant; (iii)
an estate, trust (including a revocable trust, declaration of trust or a voting trust),
guardianship or custodianship for the primary benefit of one or more individuals described in
clause (i) or (ii) of this definition; (iv) any foundation established by one or more individuals
described in clause (i) or (ii) of this definition; and (v) a Person controlled directly or
indirectly by one or more individuals or entities described in clause (i), (ii), (iii) or (iv) of
this definition.




          “Funded Debt Ratio” means, as of any date of determination, on a consolidated basis,
the ratio of (i) Consolidated Funded Debt as of such date to (ii) Consolidated Tangible Net Worth
as of such date.




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




          “Government Securities” means securities that are direct obligations (or certificates
representing an ownership interest in such obligations) of, or obligations guaranteed by, the
United States of America (including any agency or instrumentality thereof) for the payment of which
the full faith and credit of the United States of America is pledged and which are not callable at
the issuer’s option.




          “Guarantee” means a guarantee (other than by endorsement of negotiable instruments for
collection in the ordinary course of business), direct or indirect, in any manner (including
letters of credit and reimbursement agreements in respect thereof), of all or any part of any
Indebtedness.




          “Guarantor” means





     (i) each of Buyers Vehicle Protection Plan, Inc., a Michigan corporation, and Vehicle
Remarketing Services, Inc., a Michigan corporation; and



14









 






     (ii) any other Subsidiary that executes a Notes Guarantee in accordance with the
provisions of this Indenture, and their respective successors and assigns,


in each case until such Person is released from its Notes Guarantee in accordance with this
Indenture.




          “Hedging Obligations” means, with respect to any Person, the obligations of such
Person under (i) interest rate swap agreements, interest rate cap agreements and interest rate
collar agreements and (ii) other agreements or arrangements designed to protect such Person against
fluctuations in interest or currency exchange rates.




          “Holder” means any registered holder, from time to time, of the Notes.




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





     (i) the principal in respect of (1) indebtedness of such Person for money borrowed and
(2) indebtedness evidenced by notes, debentures, bonds or other similar instruments for the
payment of which such Person is responsible or liable, including, in each case, any premium
on such indebtedness to the extent such premium has become due and payable;




     (ii) all Capital Lease Obligations of such Person and all Attributable Debt in respect
of Sale/Leaseback Transactions entered into by such Person;




     (iii) all obligations of such Person issued or assumed as the deferred purchase price
of property, all conditional sale obligations of such Person and all obligations of such
Person under any title retention agreement (but excluding any accounts payable or other
liability to trade creditors arising in the ordinary course of business);




     (iv) all obligations of such Person for the reimbursement of any obligor on any letter
of credit, bankers’ acceptance or similar credit transaction (other than obligations with
respect to letters of credit securing obligations (other than obligations set forth in
clauses (i) through (iii) above) entered into in the ordinary course of business of such
Person to the extent such letters of credit are not drawn
upon or, if and to the extent drawn upon, such drawing is reimbursed no later than the
tenth Business Day following payment on the letter of credit);




     (v) the amount of all obligations of such Person with respect to the redemption,
repayment or other repurchase of any Disqualified Stock of such Person or, with respect to
any Preferred Stock of any Subsidiary of such Person, the principal amount of such
Preferred Stock to be determined in accordance with this Indenture (but excluding, in each
case, any accrued dividends);




     (vi) all Guarantees by such Person of obligations of the type referred to in clauses
(i) through (v) or dividends of other Persons;



15









 






     (vii) all obligations of the type referred to in clauses (i) through (vi) of other
Persons secured by any Lien on any property or asset of such Person (whether or not such
obligation is assumed by such Person), the amount of such obligation being deemed to be the
lesser of the Fair Market Value of such property or assets and the amount of the obligation
so secured; and




     (viii) to the extent not otherwise included in this definition, Hedging Obligations of
such Person.


Indebtedness of a Person includes Acquired Indebtedness of such Person.




          Notwithstanding the foregoing, the term “Indebtedness” shall exclude (i) in connection with
the purchase by the Company or any Restricted Subsidiary of any business, post-closing payment
adjustments to which the seller may become entitled to the extent such payment is determined by a
final closing balance sheet or such payment depends on the performance of such business after the
closing; provided, however, that, at the time of closing, the amount of any such payment is not
determinable and, to the extent such payment thereafter becomes fixed and determined, the amount is
paid within 30 days thereafter and (ii) obligations of the Company and the Restricted Subsidiaries
under Standard Securitization Undertakings.




          The amount of Indebtedness of any Person at any date shall be the outstanding balance at such
date of all obligations as set forth above; provided, however, that in the case of Indebtedness
sold at a discount, the amount of such Indebtedness at any time shall be the accreted value thereof
at such time.




          “Indenture” means this Indenture as amended or supplemented from time to time.




          “Independent Qualified Party” means an investment banking firm, accounting firm or
appraisal firm of national standing; provided, however, that such firm is not an Affiliate of the
Company.




          “Initial Purchasers” means Credit Suisse Securities (USA) LLC, BMO Capital Markets
Corp., Comerica Securities, Inc., Fifth Third Securities, Inc. and RBS Securities Inc.




          “Installment Contract” means a retail installment contract for the sale of new or used
motor vehicles purchased outright from Dealers by the Company or a Restricted Subsidiary or written
by Dealers in the name of the Company or a Restricted Subsidiary (and funded by the Company or such
Restricted Subsidiary) or assigned by Dealers to the Company or a Restricted Subsidiary, as nominee
for the Dealer, for administration, servicing, and collection, in each case pursuant to an
applicable Dealer Agreement.




          “Intercreditor Agreement” means that certain Amended and Restated Intercreditor
Agreement, dated as of the Issue Date, among the Company, the other





16









 







Grantors (as defined therein),
Comerica Bank, in the capacities specified therein, U.S. Bank National Association, in the capacity
specified therein, and each Additional Authorized Representative (as defined therein) from time to
time party thereto, as amended, restated or otherwise modified from time to time in accordance with
its terms and this Indenture.




          “Investment” in any Person means any direct or indirect advance, loan (other than
advances to customers in the ordinary course of business that are recorded as accounts receivable
on the balance sheet of the lender) or other extensions of credit (including by way of Guarantee or
similar arrangement) or capital contribution to (by means of any transfer of cash or other property
to others or any payment for property or services for the account or use of others), or any
purchase or acquisition of Capital Stock, Indebtedness or other similar instruments issued by such
Person. If the Company or any Restricted Subsidiary issues, sells or otherwise disposes of any
Capital Stock of a Person that is a Restricted Subsidiary such that, after giving effect thereto,
such Person is no longer a Restricted Subsidiary, any Investment by the Company or any Restricted
Subsidiary in such Person remaining after giving effect thereto shall be deemed to be a new
Investment at such time. The acquisition by the Company or any Restricted Subsidiary of a Person
that holds an Investment in a third Person shall be deemed to be an Investment by the Company or
such Restricted Subsidiary in such third Person at such time. Except as otherwise provided for
herein, the amount of an Investment shall be its Fair Market Value at the time the Investment is
made and without giving effect to subsequent changes in value.




          For purposes of the definition of “Unrestricted Subsidiary” and Section 4.04:





     (i) “Investment” shall include the portion (proportionate to the Company’s equity
interest in such Subsidiary) of the Fair Market Value of the net assets of any Subsidiary
of the Company at the time that such Subsidiary is designated an Unrestricted Subsidiary;
provided, however, that upon a redesignation of such Subsidiary as a Restricted Subsidiary,
the Company shall be
deemed to continue to have a permanent “Investment” in an Unrestricted Subsidiary
equal to an amount (if positive) equal to (1) the Company’s “Investment” in such Subsidiary
at the time of such redesignation less (2) the portion (proportionate to the Company’s
equity interest in such Subsidiary) of the Fair Market Value of the net assets of such
Subsidiary at the time of such redesignation; and




     (ii) any property transferred to or from an Unrestricted Subsidiary shall be valued at
its Fair Market Value at the time of such transfer.



          “Issue Date” means February 1, 2010.




          “Legal Holiday” means a Saturday, a Sunday or a day on which banking institutions are
not required to be open in the State of New York.






17









 








          “Lenders” means the lenders and letter of credit issuing bank under the Credit
Facility from time to time.




          “Lien” means, with respect to any asset, any mortgage, lien, pledge, charge, security
interest or encumbrance of any kind in respect of such asset, whether or not filed, recorded or
otherwise perfected under applicable law (including any conditional sale or other title retention
agreement or any lease in the nature thereof); provided, however, that in no event shall an
operating lease be deemed to constitute a Lien. The term “Lien” does not include negative pledge
clauses in agreements relating to the borrowing of money or the obligation of the Company or any
Subsidiary (a) to remit monies held by it in connection with dealer holdbacks, claims or refunds
under insurance policies, or claims or refunds under service contracts or (b) to make deposits in
trust or otherwise as required under reinsurance agreements or pursuant to state regulatory
requirements, unless the Company or such Subsidiary has encumbered its interest in such monies or
deposits or in other property of the Company or such Subsidiary to secure such obligations.




          “Moody’s” means Moody’s Investors Service, Inc., or any successor thereto.




          “Net Cash Proceeds” means (i) with respect to any issuance or sale of Capital Stock or
Indebtedness, the cash proceeds of such issuance or sale net of attorneys’ fees, accountants’ fees,
underwriters’ or placement agents’ fees, discounts or commissions and brokerage, consultant and
other fees actually incurred in connection with such issuance or sale and net of taxes paid or
payable as a result thereof and (ii) with respect to an Asset Sale, the payments received in the
form of cash or the value of Cash Equivalents therefrom (including any such payments received by
way of deferred payment of principal pursuant to a note or installment receivable or otherwise and
proceeds from the sale or other disposition of any securities received as consideration, but only
as and when received, but excluding any other consideration received in the form of assumption by
the acquiring Person of Indebtedness or other obligations relating to such properties or assets or
received in any other non-cash form), in each case net of:





     (1) all legal, accounting and investment banking fees, title and recording tax
expenses, commissions and other fees and expenses incurred, and all federal, state,
provincial, foreign and local taxes required to be accrued as a liability under GAAP, as a
consequence of such Asset Sale;




     (2) all payments made on any Indebtedness which is secured by any assets subject to
such Asset Sale, in accordance with the terms of any Lien upon or other security agreement
of any kind with respect to such assets, or which must by its terms, or in order to obtain
a necessary consent to such Asset Sale, or by applicable law, be repaid out of the proceeds
from such Asset Sale;




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



18









 






     (4) the deduction of appropriate amounts provided by the seller as a reserve, in
accordance with GAAP, against any liabilities associated with the property or other assets
disposed in such Asset Sale and retained by the Company or any Restricted Subsidiary after
such Asset Sale; and




     (5) any portion of the purchase price from an Asset Sale placed in escrow, whether as
a reserve for adjustment of the purchase price, for satisfaction of indemnities in respect
of such Asset Sale or otherwise in connection with that Asset Disposition; provided,
however, that upon the termination of that escrow, Net Cash Proceeds shall be increased by
any portion of funds in the escrow that are released to the Company or any Restricted
Subsidiary.



          “Nonrecourse Indebtedness” means, with respect to any Special Purpose Subsidiary,
Indebtedness of such Special Purpose Subsidiary as to which neither the Company nor any Restricted
Subsidiary (other than such Special Purpose Subsidiary) is directly or indirectly liable (by virtue
of the Company or any such Restricted Subsidiary being the primary obligor on, guarantor of, or
otherwise liable in any respect for, such Indebtedness except for a Lien on the Capital Stock of
such Special Purpose Subsidiary to the creditors thereof which is not recourse to any other assets
of the Company or any other Restricted Subsidiary and except for Standard Securitization
Undertakings).




          “Notes” means all the 9.125% First Priority Senior Secured Notes due 2017 issued under
this Indenture, treated as a single class.




          “Notes Guarantee” means the Guarantee on the terms set forth in this Indenture by a
Guarantor of the Company’s obligations under the Notes.




          “Notes Obligations” means the Obligations of the Company and the Guarantors under the
Indenture and the Notes.




          “Notes Secured Creditors” means the Trustee and the Holders, together.




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




          “Offering Circular” means the offering circular dated January 25, 2010 pursuant to
which the Initial Notes were offered to investors.




          “Officer” means the Chairman of the Board, the President, any Vice President, the
Treasurer or the Secretary of the Company.




          “Officers’ Certificate” of the Company means a certificate signed on behalf of the
Company by two Persons, one of which shall be any of the following: the Chairman of the Board, the
Chief Executive Officer, the President, the Chief Operating Officer, the Chief Legal Officer, the
Chief Financial Officer, the Chief Accounting Officer, the Treasurer or any Executive Vice
President (or any such other officer that




19









 







performs similar duties) of the Company, and the other
one shall be any of the following: the Chairman of the Board, the Chief Executive Officer, the
President, the Chief Operating Officer, the Chief Legal Officer, the Chief Financial Officer, the
Chief Accounting Officer, the Treasurer, the Assistant Treasurer, Controller, the Secretary, any
Assistant Secretary or any Executive Vice President (or any such other officer that performs
similar duties) of the Company.




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




          “Outright Dealer Agreement” means a Dealer Agreement referred to in clause (ii) of the
definition of Dealer Agreements.




          “Permitted Collateral Liens” means



(a) (i) any Lien on the Collateral to secure:





     (1) any Credit Facility Indebtedness;




     (2) the Notes (or any Guarantees thereof) incurred as Permitted Indebtedness
pursuant to Section 4.03(b)(ii);




     (3) any other Indebtedness incurred pursuant to Section 4.03; provided,
however, that (x) no Default shall have occurred and be continuing at the time of
the incurrence of such Indebtedness or after giving effect thereto and (y) the
Collateral Coverage Ratio of the Company, calculated on a pro forma basis after
giving effect to the incurrence of such Indebtedness, would have been at least 1.25
to 1.0;




     (4) any Refinancing Indebtedness of Indebtedness set forth in the foregoing
clause (2) or (3) or this clause (4); or




     (5) Banking Product Obligations to the extent that the provider of such
Banking Product Obligations has agreed to be bound by the terms of the
Intercreditor Agreement or such provider’s interest in the Collateral is subject to
the terms of the Intercreditor Agreement,




in each case which are subject to the terms of the Intercreditor Agreement;




     (ii) in addition to any Liens set forth in the immediately preceding clause (a)(i),
any Liens on the Collateral to secure Hedging Obligations in an aggregate amount not in
excess of $2,500,000 at any time outstanding; or



20









 






     (iii) any Lien on the Collateral that is a statutory Lien arising by operation of law;
provided, however, that such Lien either ranks:




     (1) equal to all other Liens on such Collateral securing unsubordinated
Indebtedness of the Company or the relevant Restricted Subsidiary, if the Lien
secures unsubordinated Indebtedness; or




     (2) junior to the Liens securing the Notes, and


(b) any Permitted Lien set forth in clauses (i), (iii), (iv), (v), (vi), (vii), (viii), (ix), (x),
(xii), (xiv), (xv), (xvi), (xvii), (xviii), (xix), (xx) and (xxi) of the definition of “Permitted
Lien”; provided, however, that (A) such Permitted Lien (other than any Lien set forth in clauses
(iii), (ix), (xiv), (xv), (xvi) and (xvii) of such definition) is not a Lien on any of the
Receivables and (B) such Permitted Lien (other than any Lien set forth in clauses (iii), (vii) and
(ix) of such definition) is not a Lien on any cash or Cash Equivalents constituting Collateral and
held by the Collateral Agent.




          “Permitted Future Secured Creditors” means the holders or lenders (and their
representatives and trustees), as the case may be, of Permitted Future Secured Indebtedness.




          “Permitted Future Secured Indebtedness” means Secured Indebtedness (other than any
Secured Indebtedness under the Credit Agreement or with respect to the Notes issued on the Issue
Date, any Notes issued in exchange therefor pursuant to the Registration Rights Agreement or any
Replacement Notes) incurred after the Issue Date in compliance with this Indenture, to the extent
that the holders or lenders thereof or their representatives and trustees, as the case may be, are
permitted to be Secured Parties under (and as defined in) the Intercreditor Agreement.




          “Permitted Holder” means (i) any member of the Founder Group; and (ii) any Person
acting in the capacity of an underwriter (solely to the extent that and for so long as such Person
is acting in such capacity) in connection with a public or private offering of Capital Stock of the
Company. In addition, any “person” (as such term is used in Section 13(d)(3) of the Exchange Act)
whose status as a “beneficial owner” (as defined in Rules 13d-3 and 13d-5 under the Exchange Act)
constitutes or results in a Change of Control in respect of which a Change of Control Offer is made
in accordance
with the requirements of this Indenture, together with its Affiliates, shall thereafter
constitute Permitted Holders.




          “Permitted Investments” means:





     (i) any Investment in the Company or in a Wholly-Owned Restricted Subsidiary of the
Company; provided, however, that if such Wholly-Owned Restricted Subsidiary is a Special
Purpose Subsidiary, at the time of and after giving effect to such Investment the
Collateral Coverage Ratio must equal or exceed 1.25 to 1.0 and no Default shall have
occurred and be continuing;



21









 






     (ii) any Investment in cash or Cash Equivalents;




     (iii) any Investment by the Company or any Subsidiary of the Company in a Person, if
as a result of such Investment (1) such Person becomes a Wholly-Owned Restricted Subsidiary
of the Company and a Guarantor that is engaged in a Related Business or (2) such Person is
merged, consolidated or amalgamated with or into, or transfers or conveys substantially all
of its assets to, or is liquidated into, the Company or a Wholly-Owned Restricted
Subsidiary of the Company that is a Guarantor and that is engaged in a Related Business;




     (iv) any Investment made as a result of the receipt of non-cash consideration from an
Asset Sale that was made pursuant to and in compliance with Section 4.06;




     (v) any acquisition of assets solely in exchange for the issuance of Equity Interests
(other than Disqualified Stock) of the Company;




     (vi) any Investment consisting of purchases or other acquisitions of Dealer Loans,
Installment Contracts and leases securing or otherwise relating to Dealer Loans and related
financial assets;




     (vii) any Investment existing on the Issue Date;




     (viii) loans and advances to officers, directors and employees for payroll,
business-related travel, moving expenses and similar purposes to, and Guarantees issued to
support the obligations of officers, directors and employees, in each case in the ordinary
course of business;




     (ix) Hedging Obligations otherwise permitted under this Indenture;




     (x) receivables owing to the Company or any Restricted Subsidiary if created or
acquired in the ordinary course of business; cash management investments or liquid or
portfolio securities pledged as collateral in accordance with Section 4.10; and
endorsements for collection or deposit in the ordinary course of business;




     (xi) any Investment acquired by the Company or any Restricted Subsidiary (A) in
exchange for any other Investment held by the Company or any Restricted Subsidiary in
connection with or as a result of a bankruptcy, workout, reorganization or recapitalization
of the issuer of such other Investment, (B) as a result of a foreclosure by the Company or
any Restricted Subsidiary with respect to any secured Investment or other transfer of title
with respect to any secured Investment in default or (C) in satisfaction of claims or
judgments; and




     (xii) other Investments by the Company or any of its Subsidiaries in any Person (other
than an Affiliate of the Company that is not also a Subsidiary of the Company) that do not
exceed $25,000,000 in the aggregate at any one time



22









 






outstanding (measured as of the date
made and without giving effect to subsequent changes in value).



          “Permitted Liens” means:





     (i) Liens existing on the Issue Date;




     (ii) Liens on Dealer Loans or Purchased Contracts or trust certificates issued to
evidence the residual interest in Dealer Loan Pools or Purchased Contracts, and the
participation therein, and related rights and assets and the proceeds thereof incurred in
connection with Permitted Securitizations;




     (iii) Liens for taxes, assessments, charges or other governmental levies not yet due
or as to which the period of grace, if any, related thereto has not expired or which are
being contested in good faith by appropriate proceedings; provided, however, that, in the
case of contested taxes, adequate reserves with respect thereto are maintained on the books
of the applicable Person in conformity with GAAP;




     (iv) statutory Liens such as carriers’, warehousemen’s, mechanics’, materialmen’s,
landlords’, repairmen’s or other like Liens arising in the ordinary course of business that
are not overdue for a period of more than 30 days or which are being contested in good
faith by appropriate proceedings;




     (v) pledges or deposits in connection with workers’ compensation, unemployment
insurance and other social security or welfare legislation and deposits securing liability
to insurance carriers under insurance or self-insurance arrangements;




     (vi) easements, rights of way, restrictions, covenants and other similar encumbrances
affecting real property and minor imperfections of title that would not in any case
reasonably be expected to have a material adverse effect on the present or future use of
the property to which it relates or a material adverse effect on the sale or lease of such
property;




     (vii) rights of setoff or bankers’ liens upon deposits of cash in favor of banks or
other depository institutions, including Liens of a collection bank arising under Section
4-210 of the Uniform Commercial Code on items in the course of collection in favor of
banking institutions arising as a matter of law encumbering deposits (including the right
of set-off) within general parameters customary in the banking industry;




     (viii) Liens incurred on deposits to secure (1) the performance of tenders, bids,
trade contracts, licenses and leases, fee and expense arrangements with trustees and fiscal
agents, statutory obligations, and other obligations of a like nature incurred in the
ordinary course of business and not in connection with the



23









 






borrowing of money, or (2)
indemnification obligations entered into in the ordinary course of business relating to any
disposition permitted hereunder;




     (ix) Liens securing judgments, awards or orders for the payment of money that do not
constitute an Event of Default pursuant to clause (viii) of the definition thereof;




     (x) leases, subleases and other occupancy agreements with respect to real property
owned or leased by the Company or any Restricted Subsidiary not interfering in any material
respect with the business of the Company or any Restricted Subsidiary;




     (xi) Permitted Collateral Liens, including Liens created under the Security Documents;




     (xii) non-exclusive licenses of patents, trademarks, copyrights, and other
intellectual property rights in the ordinary course of business;




     (xiii) Liens in favor of the Company or any Restricted Subsidiary (other than a
Special Purpose Subsidiary);




     (xiv) Liens securing any Refinancing Indebtedness which is incurred to Refinance any
Indebtedness that has been secured by a Lien permitted under this Indenture and that has
been incurred in accordance with the provisions of this Indenture; provided, however, that
such Liens do not extend to or cover any property or assets of the Company or any
Restricted Subsidiary that would not have secured the Indebtedness so Refinanced had such
Indebtedness not been Refinanced;




     (xv) Liens securing Acquired Indebtedness incurred in accordance with Section 4.03;
provided, however, that:




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




     (2) such Liens do not extend to or cover any property or assets of the Company
or of any Restricted Subsidiary other than the property or assets that secured the
Acquired Indebtedness prior to the time such Indebtedness became Acquired
Indebtedness of the Company or a Restricted Subsidiary and are no more favorable to
the lienholders than those securing the Acquired Indebtedness prior to the
incurrence of such Acquired Indebtedness by the Company or a Restricted Subsidiary
as determined by the management of the Company in their reasonable and good faith
judgment;



24









 






     (xvi) Liens securing performance, bid, appeal, surety and similar bonds and completion
guarantees provided by the Company or any Restricted Subsidiary in the ordinary course of
business;




     (xvii) Liens securing Capital Lease Obligations, mortgage financings or purchase money
obligations securing Indebtedness set forth in Section 4.03(b)(xiii); provided, however,
that any such Lien (A) covers only the assets acquired, constructed or improved with such
Indebtedness and (B) is created within 180 days of such acquisition, construction or
improvement;




     (xviii) Liens on property existing at the time of acquisition thereof by the Company
or any Restricted Subsidiary; provided, however, that such Liens were in existence prior
to, and were not incurred in connection with or in contemplation of, such acquisition and
do not extend to any property other than the property so acquired by the Company or the
Restricted Subsidiary;




     (xix) deposits made in the ordinary course of business to secure liability to
insurance carriers;




     (xx) Liens on cash or cash equivalents securing permitted Hedging Obligations; or




     (xxi) Liens other than any of the foregoing incurred by the Company or any Restricted
Subsidiary with respect to Indebtedness or other obligations that do not, in the aggregate,
exceed the greater of (x) $10,000,000 and (y) 1.0% of Consolidated Total Assets at any one
time outstanding.



          “Permitted Securitization” means each transfer or encumbrance (each a
“disposition”) of (A) specific Dealer Loan Pools (and any interest in and Lien on the
Installment Contracts, motor vehicles, and other rights and financial assets relating thereto) or
specific Purchased Contracts (and any interest in and Lien on motor vehicles and other rights and
financial assets relating thereto), or (B) the trust certificate issued to evidence the residual
interest in Dealer Loan Pools or Purchased Contracts and other financial assets transferred or
encumbered pursuant to a prior Permitted Securitization, in
each case by the Company or one or more Restricted Subsidiaries to one or more Special Purpose
Subsidiaries or by one Special Purpose Subsidiary to another Special Purpose Subsidiary, conducted
in accordance with the following requirements:





     (i) each disposition in clause (A) shall identify with reasonable certainty the
specific Dealer Loan Pools or Purchased Contracts, as applicable, covered by such
disposition and (x) such Dealer Loan Pools or Purchased Contracts shall have performance
and other characteristics so that the quality of such Dealer Loan Pools or Purchased
Contracts, as the case may be, is comparable to, but not materially better than, the
overall quality of the Company’s Dealer Loan Pools or Purchased Contracts, as applicable,
as determined in good faith by the Company in its reasonable discretion or (y) with respect
to any such assets assigned to an uncapped Dealer Loan Pool subsequent to such Dealer Loan
Pool becoming a




25











 






securitized pool, the assets covered by such disposition shall have been assigned
to such Dealer Loan Pool in the order in which such assets were originated and without the
exercise of any discretion by the Company;




     (ii) the only Indebtedness of the Company or any Restricted Subsidiary resulting from
such disposition shall be Nonrecourse Indebtedness of one or more Special Purpose
Subsidiaries;




     (iii) both immediately before and after such disposition, no Default has occurred and
is continuing; and




     (iv) at the time of such disposition and after giving pro forma effect thereto, the
Collateral Coverage Ratio equals or exceeds 1.25 to 1.0.



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




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




          “Purchased Contracts” means Installment Contracts purchased by the Company or any of
its Subsidiaries under Outright Dealer Agreements.




          “Qualified Capital Stock” of a Person means Capital Stock of such Person other than
Disqualified Stock; provided, however, that such Capital Stock shall not be deemed Qualified
Capital Stock to the extent sold to a Subsidiary of such Person or financed, directly or
indirectly, using funds (i) borrowed from such Person, any Subsidiary of such Person or an employee
stock ownership or benefit plan of such Person or (ii) contributed, extended, guaranteed or
advanced by such Person, any Subsidiary of such Person or an employee stock ownership or benefit
plan of such Person. Unless otherwise specified, Qualified Capital stock refers to Qualified
Capital Stock of the Company.




          “Receivables” means, without duplication, Dealer Loans Receivable and Purchased
Contracts, excluding any Dealer Loans Receivable or Purchased Contracts encumbered pursuant to a
Permitted Securitization.




          “Redemption Date” means any date on which some or all of the Notes are to be redeemed
in accordance with Section 3.07.




          “Refinance” means, in respect of any Indebtedness, to refinance, restructure, extend,
renew, refund, pay, repay, prepay, redeem, defease, discharge or retire, or to issue a security or
Indebtedness in exchange or replacement for, such






26









 







Indebtedness in whole or in part. “Refinanced” and “Refinancing” shall have
correlative meanings.




          “Refinancing Indebtedness” means Indebtedness that Refinances any Indebtedness of the
Company or any Restricted Subsidiary existing on the Issue Date or incurred in compliance with this
Indenture, including Indebtedness that Refinances Refinancing Indebtedness; provided, however,
that:





     (i) such Refinancing Indebtedness has a Stated Maturity no earlier than the Stated
Maturity of the Indebtedness being Refinanced;




     (ii) such Refinancing Indebtedness has an Average Life at the time such Refinancing
Indebtedness is Incurred that is equal to or greater than the Average Life of the
Indebtedness being Refinanced;




     (iii) such Refinancing Indebtedness has an aggregate principal amount (or if incurred
with original issue discount, an aggregate issue price) that is equal to or less than the
aggregate principal amount (or if incurred with original issue discount, the aggregate
accreted value) then outstanding (plus fees and expenses, including any premium and
defeasance costs) under the Indebtedness being Refinanced; and




     (iv) if the Indebtedness being Refinanced is subordinated in right of payment to the
Notes, such Refinancing Indebtedness is subordinated in right of payment to the Notes at
least to the same extent as the Indebtedness being Refinanced;


provided further, however, that Refinancing Indebtedness shall not include (x)
Indebtedness of a Subsidiary that Refinances Indebtedness of the Company or (y) Indebtedness of the
Company or a Restricted Subsidiary that Refinances Indebtedness of an Unrestricted Subsidiary.




          “Registration Rights Agreement” means the Registration Rights Agreement, dated as of
the Issue Date, among the Company, the Guarantors and Credit Suisse Securities (USA) LLC, as
representative of the Initial Purchasers.




          “Related Business” means any business in which the Company or any of the Restricted
Subsidiaries was engaged on the Issue Date and any business related, ancillary or complementary to
such business.




          “Replacement Assets” means, in connection with an Asset Sale, properties and assets
that replace the properties and assets that were the subject of such Asset Sale, or properties and
assets that will be used in the business of the Company and the Restricted Subsidiaries as existing
on the Issue Date or in a Related Business, including Capital Stock of a Person primarily engaged
in a Related Business that becomes a Restricted Subsidiary.







27









 








          “Restricted Subsidiary” means, at any time, any direct or indirect Subsidiary of the
Company that is not then an Unrestricted Subsidiary; provided, however, that, upon an Unrestricted
Subsidiary ceasing to be an Unrestricted Subsidiary, such Subsidiary shall, to the extent that it
remains a Subsidiary of the Company at such time, be a Restricted Subsidiary.




          “S&P” means Standard & Poor’s, a division of The McGraw-Hill Companies, Inc., and any
successor thereto.




          “Sale/Leaseback Transaction” means an arrangement relating to property owned by the
Company or a Restricted Subsidiary on the Issue Date or thereafter acquired by the Company or a
Restricted Subsidiary whereby the Company or a Restricted Subsidiary transfers such property to a
Person and the Company or a Restricted Subsidiary substantially concurrently leases it from such
Person.




          “SEC” means the Securities and Exchange Commission and any successor agency.




          “Secured Creditors” has the meaning ascribed to “Secured Parties” in the Intercreditor
Agreement.




          “Secured Indebtedness” means any Indebtedness secured by a Lien.




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




          “Securitization” means a public or private transfer of Dealer Loans or Purchased
Contracts in the ordinary course of business and by which the Company or any of the Restricted
Subsidiaries directly or indirectly securitizes a pool of specified Dealer Loans or Purchased
Contracts including any such transaction involving the sale of specified Dealer Loans or Purchased
Contracts to a Special Purpose Subsidiary.




          “Security Agreement” means the Fourth Amended and Restated Security Agreement, dated
as of the Issue Date, among the Company, the Guarantors and Comerica Bank, as collateral agent, as
amended, restated or otherwise modified from time to time in accordance with its terms and this
Indenture.




          “Security Documents” means, (i) each Credit Facility Security Document and (ii) all
other agreements or instruments evidencing or creating any security interest or Lien in favor of
the Collateral Agent or Trustee, for the benefit of the Holders, in any or all of the Collateral,
in each case, as amended from time to time in accordance with their respective terms.




          “Significant Subsidiary” means any Subsidiary that would be a “significant subsidiary”
as defined in Article 1, Rule 1-02 of Regulation S-X, promulgated pursuant to the Securities Act,
as such Regulation is in effect from time to time.







28









 








          “Special Purpose Subsidiary” means any wholly-owned direct or indirect Subsidiary of
the Company established for the sole purpose of conducting one or more Permitted Securitizations
and otherwise established and operated in accordance with customary industry practices.




          “Standard Securitization Undertakings” means representations, warranties, covenants,
indemnities and guarantees of performance entered into by the Company or any Subsidiary of the
Company that the Company has determined in good faith to be customary in a Securitization,
including those relating to the servicing of the assets of a Special Purpose Subsidiary.




          “Stated Maturity” means, with respect to any installment of interest or principal on
any series of Indebtedness, the date on which such payment of interest or principal was scheduled
to be paid in the original documentation governing such Indebtedness, including any date upon which
a repurchase at the option of holders of such Indebtedness is required to be consummated, but
excluding any contingent obligations to repay, redeem or repurchase any such interest or principal
prior to the date originally scheduled for the payment thereof so long as such obligations remain
contingent.




          “Subordinated Obligation” means, with respect to a Person, any Indebtedness of such
Person (whether outstanding on the Issue Date or thereafter incurred) which is subordinate or
junior in right of payment to the Notes or a Guarantee of such Person, as the case may be, pursuant
to a written agreement to that effect.




          “Subsidiary” means, with respect to any Person, (i) any corporation, association or
other business entity of which more than 50.0% of the total voting power of shares of Capital Stock
entitled (without regard to the occurrence of any contingency) to vote in the election of
directors, managers or trustees thereof is at the time owned or controlled, directly or indirectly,
by such Person or one or more of the other Subsidiaries of that Person (or a combination thereof)
and (ii) any partnership (1) the sole general partner or the managing general partner of which is
such Person or a Subsidiary of such Person or (2) the only general partners of which are such
Person or one or more Subsidiaries of such Person (or any combination thereof). Unless otherwise
qualified, all references to a “Subsidiary” or to “Subsidiaries” in this Indenture shall refer to a
Subsidiary or Subsidiaries of the Company.




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




          “Treasury Rate” means, as of any Redemption Date, the yield to maturity as of such
Redemption Date of United States Treasury securities with a constant maturity (as compiled and
published in the most recent Federal Reserve Statistical Release H.15 (519) that has become
publicly available at least two Business Days prior to such Redemption Date (or, if such
Statistical Release is no longer published, any publicly available source of similar market data))
most nearly equal to the period from such Redemption Date to February 1, 2014; provided, however,
that if the period from such






29









 







Redemption Date to February 1, 2014 is less than one year, the weekly average yield on
actually traded United States Treasury securities adjusted to a constant maturity of one year shall
be used.




          “Trust Monies” means all cash and Cash Equivalents received by the Trustee (i) upon
the release of Collateral, whether pursuant to an Asset Sale or otherwise; (ii) as compensation for
or proceeds of the sale of all or any part of the Collateral taken by eminent domain or purchased
by or sold pursuant to any order of a governmental authority or otherwise disposed of; (iii) as net
insurance proceeds; and (iv) pursuant to the Security Documents and the Intercreditor Agreement.




          “Trust Officer” means, when used with respect to the Trustee, any officer within the
corporate trust department of the Trustee, including any vice president, assistant vice president,
assistant secretary, assistant treasurer, trust officer or any other officer of the Trustee who
customarily performs functions similar to those performed by the Persons who at the time shall be
such officers, respectively, or to whom any corporate trust matter is referred because of such
person’s knowledge of and familiarity with the particular subject and who shall have direct
responsibility for the administration of this Indenture.




          “Trustee” means U.S. Bank National Association, a national banking association, as
trustee under this Indenture, until a successor replaces it in accordance with the applicable
provisions of this Indenture and thereafter means the successor serving as trustee under this
Indenture.




          “Uniform Commercial Code” means the New York Uniform Commercial Code as in effect from
time to time.




          “Unrestricted Subsidiary” means (i) any Subsidiary of the Company which at the time of
determination is an Unrestricted Subsidiary (as designated by the Company, as provided below) and
(ii) any Subsidiary of an Unrestricted Subsidiary.




          The Company may designate any Restricted Subsidiary (including any newly acquired or newly
formed Subsidiary) of the Company to be an Unrestricted Subsidiary unless such Subsidiary owns any
of the Capital Stock of the Company or any Restricted Subsidiary or owns or holds any Indebtedness
of or Lien on any property of the Company or any Restricted Subsidiary; provided, however, that





     (i) any Guarantee or other credit support by the Company or any Restricted Subsidiary
of any Indebtedness of the Subsidiary being so designated shall be deemed an incurrence of
such Indebtedness and an “Investment” by the Company or such Restricted Subsidiary at the
time of such designation;




     (ii) either (1) the Restricted Subsidiary to be so designated has total assets of
$1,000 or less or (2) if such Subsidiary has assets greater than $1,000, such designation
would be permitted under Section 4.04; and



30









 






     (iii) after giving pro forma effect to the incurrence of Indebtedness and the
Investment referred to in clause (i) of this proviso, (1) such Indebtedness would be
permitted to be incurred as Ratio Indebtedness, (2) such Investment would be in compliance
with Section 4.04 and (3) no Default shall have occurred and be continuing.



          The Company may designate any Unrestricted Subsidiary to be a Restricted Subsidiary; provided,
however, that





     (i) no Default shall have occurred and be continuing at the time of or after giving
effect to such designation; and




     (ii) all Liens and Indebtedness of such Unrestricted Subsidiary outstanding
immediately after such designation would, if incurred at such time, have been permitted to
be incurred (and shall be deemed to have been incurred) for all purposes of this Indenture.



          Any such designation by the Company shall be evidenced to the Trustee by promptly filing with
the Trustee an Officers’ Certificate certifying that such designation complied with the foregoing
provisions.




          “U.S. Dollar Equivalent” means with respect to any monetary amount in a currency other
than U.S. dollars, at any time for determination thereof, the amount of U.S. dollars obtained by
converting such foreign currency involved in such computation into U.S. dollars at the spot rate
for the purchase of U.S. dollars with the applicable foreign currency as published in The Wall
Street Journal in the “Exchange Rates” column under the heading “Currency Trading” on the date
two (2) Business Days prior to such determination.




          “Voting Stock” of any Person as of any date means the Capital Stock of such Person
that (i) if such Person is a corporation, is at the time entitled to vote in the election of such
corporation’s board of directors or any committee thereof duly authorized to act on behalf of such
board or (ii) if such Person is an entity other than a corporation, is at the time entitled to vote
in the election of the group or individual exercising the authority with respect to such Person
generally vested in a board of directors of a corporation.




          “Wholly-Owned Restricted Subsidiary” of any Person means a Restricted Subsidiary of
such Person all of the outstanding Capital Stock or other ownership interests of which (other than
directors’ qualifying shares) shall at the time be owned by such Person or by one or more
Wholly-Owned Restricted Subsidiaries of such Person.







31









 








SECTION 1.02. Other Definitions.




	 	 	 
	 	 	Defined in
	Term	 	Section
	“Affiliate Transaction”
	 	4.07(a)
	 
	 	 
	“Appendix”
	 	2.01
	 
	 	 
	“Arm’s Length Terms”
	 	4.07(a)(i)
	 
	 	 
	“Asset Sale Offer”
	 	4.06(b)
	 
	 	 
	“Asset Sale Offer Trigger Date”.
	 	4.06(b)
	 
	 	 
	“Bankruptcy Law”
	 	6.01(c)
	 
	 	 
	“Change of Control Offer”
	 	4.09(a)
	 
	 	 
	“Change of Control Payment”
	 	4.09(a)
	 
	 	 
	“Change of Control Payment Date”
	 	4.09(a)
	 
	 	 
	“Company”
	 	Preamble
	 
	 	 
	“Covenant Defeasance”
	 	8.02(a)
	 
	 	 
	“Credit Facility Indebtedness”
	 	4.03(b)(i)
	 
	 	 
	“Custodian”
	 	6.01(c)
	 
	 	 
	“Definitive Note”
	 	Appendix
	 
	 	 
	“Event of Default”
	 	6.01(a)
	 
	 	 
	“Excess Proceeds”
	 	4.06(b)
	 
	 	 
	“Exchange Notes”
	 	Appendix
	 
	 	 
	“Guaranteed Obligations”
	 	10.01
	 
	 	 
	“incur”
	 	4.03(a)
	 
	 	 
	“Initial Notes”
	 	Appendix
	 
	 	 
	“Legal Defeasance”
	 	8.02(a)
	 
	 	 
	“Paying Agent”
	 	2.03






32









 






	 	 	 
	 	 	Defined in
	Term	 	Section
	“Permitted Indebtedness”
	 	4.03(b)
	 
	 	 
	“Private Exchange Notes”
	 	Appendix
	 
	 	 
	“Ratio Indebtedness”
	 	4.03(a)
	 
	 	 
	“Redemption Date”
	 	3.07(a)
	 
	 	 
	“Replacement Notes”
	 	Appendix
	 
	 	 
	“Restricted Payments”
	 	4.04(a)
	 
	 	 
	“Registrar”
	 	2.03
	 
	 	 
	“Rule 3-16”
	 	4.12(b)






          SECTION 1.03. Incorporation by Reference of Trust Indenture Act. This Indenture is
subject to the provisions of the TIA, other than TIA §314(d) and TIA §314(b) (which shall not be
applicable to this Indenture unless it is qualified under the TIA), that, pursuant to TIA § 318(c),
govern indentures qualified under the TIA, which provisions (other than TIA §314(d) and TIA
§314(b), which shall not be applicable to this Indenture unless it is qualified under the TIA) are
incorporated by reference in and made a part of this Indenture. The following TIA terms have the
following meanings:




          “Commission” means the SEC;




          “indenture securities” means the Notes and the Guarantees;




          “indenture security holder” means a Holder;




          “indenture to be qualified” means this Indenture;




          “indenture trustee” or “institutional trustee” means the Trustee; and




          “obligor” on the indenture securities means the Company, each Guarantor and any other
obligor on the indenture securities.




          All other TIA terms used in this Indenture that are defined by the TIA, defined by TIA
reference to another statute or defined by SEC rule have the meanings assigned to them by such
definitions.







33









 








          SECTION 1.04. Rules of Construction. Unless the context otherwise requires:





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




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




     (iii) “or” is not exclusive;




     (iv) “including” means including without limitation;




     (v) words in the singular include the plural and words in the plural include
the singular;




     (vi) unsecured Indebtedness shall not be deemed to be subordinate or junior to
secured Indebtedness merely by virtue of its nature as unsecured Indebtedness;




     (vii) secured Indebtedness shall not be deemed to be subordinate or junior to
any other secured Indebtedness merely because it has a junior priority with respect
to the same collateral;




     (viii) the principal amount of any non-interest bearing or other discount
security at any date shall be the principal amount thereof that would be shown on a
balance sheet of the Company dated such date prepared in accordance with GAAP;




     (ix) all references to the date the Notes were originally issued shall refer
to the Issue Date;




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




     (xi) all references to Sections or Articles are to Sections or Articles of or
to this Indenture unless otherwise indicated;




     (xii) references to sections of or rules under the Securities Act, the
Exchange Act or the TIA shall be deemed to include substitute, replacement or
successor sections or rules as in effect from time to time; and




     (xiii) all references in this Indenture, in any context, to any interest or
other amount payable on or with respect to any Notes shall be deemed to include any
additional interest pursuant to the Applicable Registration Rights Agreement, if
any (as defined in such Notes).



34









 





ARTICLE II




The Notes



          SECTION 2.01. Form and Dating. Provisions relating to the Initial Notes and the
Exchange Notes are set forth in the Rule 144A/Regulation S Appendix attached hereto (the
“Appendix”) which is hereby incorporated in, and expressly made part of, this Indenture.
The Initial Notes and the Trustee’s certificate of authentication with respect thereto shall be
substantially in the form of Exhibit I to the Appendix, which Exhibit I is hereby incorporated in,
and expressly made a part of, this Indenture. The Exchange Notes (if any), the Private Exchange
Notes (if any) and any other Notes other than the Initial Notes and the Trustee’s certificate of
authentication with respect to any such Exchange Notes, Private Exchange Notes or other Notes shall
be substantially in the form of Exhibit II to the Appendix, which is hereby incorporated in and
expressly made a part of this Indenture. The Notes may have notations, legends or endorsements
required by law, stock exchange rule, policies or procedures of any applicable depositary,
agreements to which the Company or any Guarantor is subject, if any, or usage (provided that any
such notation, legend or endorsement is in a form acceptable to the Company). Each Note shall be
dated the date of its authentication. The terms of the Notes set forth in the Appendix and Exhibit
A are part of the terms of this Indenture.




          SECTION 2.02. Execution and Authentication. One Officer shall sign the Notes for the
Company by manual or facsimile signature. Notes shall be authenticated by the Trustee in
accordance with Section 2.2 of the Appendix.




          If an Officer whose signature is on a Note no longer holds that office at the time the Trustee
authenticates the Note, the Note shall be valid nevertheless.




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




          The Trustee may appoint an authenticating agent reasonably acceptable to the Company to
authenticate the Notes. Unless limited by the terms of such appointment, an authenticating agent
may authenticate Notes whenever the Trustee may do so. Each reference in this Indenture to
authentication by the Trustee includes authentication by such agent. An authenticating agent has
the same rights as any Registrar, Paying Agent or agent for service of notices and demands.




          SECTION 2.03. Registrar and Paying Agent. The Company shall maintain an office or
agency where Notes may be presented for registration of transfer or for exchange (the
“Registrar”) and an office or agency where Notes may be presented for payment (the
“Paying Agent”). The Registrar shall keep a register of the Notes and of their transfer
and exchange. The Company may have one or more co-registrars and one or more additional paying
agents. The term “Registrar” includes any co-registrar, and the term “Paying Agent” includes any
additional paying agent. The Company may appoint and change any Paying Agent or Registrar without
notice.







35









 








          The Company shall enter into an appropriate agency agreement with any Registrar or Paying
Agent not a party to this Indenture, which shall incorporate the terms of the TIA to the extent
such terms are incorporated in this Indenture. The agreement shall implement the provisions of
this Indenture that relate to such agent. The Company shall notify the Trustee of the name and
address of any such agent. If the Company fails to maintain a Registrar or Paying Agent, the
Trustee shall act as such and shall be entitled to appropriate compensation therefor pursuant to
Section 7.07. The Company or any Wholly-Owned Restricted Subsidiary of the Company incorporated or
organized within the United States of America may act as Paying Agent or Registrar.




          The Company initially appoints the Trustee as Registrar and Paying Agent in connection with
the Notes.




          SECTION 2.04. Paying Agent To Hold Money in Trust. By no later than 10:00 a.m. (New
York City time) on the date on which any principal, premium, if any, or interest on any Note is due
and payable, the Company shall deposit with the Paying Agent a sum sufficient to pay such
principal, premium, if any, and interest when so becoming due. The Company shall require each
Paying Agent (other than the Trustee) to agree in writing that the Paying Agent shall hold in trust
for the benefit of Holders or the Trustee all money held by the Paying Agent for the payment of
principal of or premium, if any, or interest on the Notes and shall notify the Trustee of any
default by the Company in making any such payment. If the Company or a Subsidiary acts as Paying
Agent, it shall segregate the money held by it as Paying Agent and hold it as a separate trust
fund. The Company at any time may require a Paying Agent to pay all money held by it to the
Trustee and to account for any funds disbursed by the Paying Agent. Upon complying with this
Section, the Paying Agent shall have no further liability for the money delivered to the Trustee.




          SECTION 2.05. Holder Lists. The Trustee shall preserve in as current a form as is
reasonably practicable the most recent list available to it of the names and addresses of Holders.
If the Trustee is not the Registrar, the Company shall furnish to the Trustee, in writing at least
five Business Days before each interest payment date and at such other times as the Trustee may
request in writing, a list in such form and as of such date as the Trustee may reasonably require
of the names and addresses of Holders.




          SECTION 2.06. Transfer and Exchange. The Notes shall be issued in registered form and
shall be transferable only upon the surrender of a Note for registration of transfer. When a Note
is presented to the Registrar with a request to register a transfer, the Registrar shall register
the transfer as requested if the requirements of this Indenture and Section 8-401(1) of the Uniform
Commercial Code are met. When Notes are presented to the Registrar with a request to exchange them
for an equal principal amount of Notes of other denominations, the Registrar shall make the
exchange as requested if the same requirements are met. The Company is not required to transfer or
exchange any Note selected for redemption (except, in the case of a Note to be redeemed in part,
the portion of the Note not to be redeemed) or any Note for a period of






36









 







15 days before a selection of Notes to be redeemed or 15 days before an interest payment date.




          SECTION 2.07. Replacement Notes. If a mutilated Note is surrendered to the Registrar
or if the Holder of a Note claims that the Note has been lost, destroyed or wrongfully taken, the
Company shall issue and the Trustee shall authenticate a replacement Note in replacement thereof if
the requirements of Section 8-405 of the Uniform Commercial Code are met and the Holder satisfies
any other reasonable requirements of the Trustee. If required by the Trustee or the Company, such
Holder shall furnish an indemnity bond sufficient in the judgment of the Company and the Trustee to
protect the Company, the Trustee, the Paying Agent and the Registrar from any loss which any of
them may suffer if a Note is replaced. The Company and the Trustee may charge the Holder for their
expenses in replacing a Note.




          Every such replacement Note is an additional Obligation of the Company.




          SECTION 2.08. Outstanding Notes. Notes outstanding at any time are all Notes
authenticated by the Trustee except for those canceled by it, those delivered to it for
cancellation and those described in this Section as not outstanding. A Note does not cease to be
outstanding because the Company or an Affiliate of the Company holds the Note.




          If a Note is replaced pursuant to Section 2.07, it ceases to be outstanding unless the Trustee
and the Company receive proof satisfactory to them that the replaced Note is held by a protected
purchaser (as defined in Section 8-303 of the Uniform Commercial Code).




          If the Paying Agent segregates and holds in trust, in accordance with this Indenture, on a
Redemption Date or maturity date money sufficient to pay all principal, premium, if any, and
interest payable on that date with respect to the Notes (or portions thereof) to be redeemed or
maturing, as the case may be, then on and after that date such Notes (or portions thereof) cease to
be outstanding and interest on them ceases to accrue.




          SECTION 2.09. Temporary Notes. Until definitive Notes are ready for delivery, the
Company may prepare and the Trustee shall authenticate temporary Notes. Temporary Notes shall be
substantially in the form of definitive Notes but may have variations that the Company considers
appropriate for temporary Notes. Without unreasonable delay, the Company shall prepare and the
Trustee shall authenticate definitive Notes and deliver them in exchange for temporary Notes.




          SECTION 2.10. Cancellation. The Company at any time may deliver Notes to the Trustee
for cancellation. The Registrar and the Paying Agent shall forward to the Trustee any Notes
surrendered to them for registration of transfer, exchange or payment. The Trustee and no one else
shall cancel and destroy (subject to the record retention requirements of the Exchange Act) all
Notes surrendered for registration of transfer, exchange, payment or cancellation and deliver a
certificate of such destruction to the Company unless the Company directs the Trustee to deliver
canceled Notes to the






37









 







Company. The Company may not issue new Notes to replace Notes it has redeemed, paid or
delivered to the Trustee for cancellation.




          SECTION 2.11. Registered Holders. Notwithstanding anything to the contrary in this
Indenture, the registered Holder of a Note shall be treated as the owner thereof for all purposes,
and no transfer of a Note shall be effective unless entered in the register kept by the Registrar
pursuant to Section 2.03.




          SECTION 2.12. CUSIP Numbers, ISINs, etc. The Company in issuing the Notes may use
CUSIP numbers, ISINs and “Common Code” numbers (in each case if then generally in use) and, if so,
the Trustee shall use CUSIP numbers, ISINs and “Common Code” numbers in notices of redemption as a
convenience to Holders; provided, however, that any such notice may state that no
representation is made as to the correctness of such numbers either as printed on the Notes or as
contained in any notice of a redemption and that reliance may be placed only on the other
identification numbers printed on the Notes, and any such redemption shall not be affected by any
defect in or omission of such numbers. The Company shall advise the Trustee in writing of any
change in any CUSIP numbers, ISINs or “Common Code” numbers applicable to the Notes.




          SECTION 2.13. Issuance of Additional Notes. After the Issue Date, the Company shall
be entitled, subject to its compliance with Section 4.03 and Section 4.10, to issue Additional
Notes under this Indenture, which Notes shall have identical terms as the Initial Notes issued on
the Issue Date, other than with respect to the date of issuance and issue price. All the Notes
issued under this Indenture shall be treated as a single class for all purposes of this Indenture,
including waivers, amendments, redemptions and offers to purchase.




          With respect to any Additional Notes, the Company shall set forth in a resolution of the Board
of Directors and an Officers’ Certificate, a copy of each which shall be delivered to the Trustee,
the following information:




          (a) the aggregate principal amount of such Additional Notes to be authenticated and delivered
pursuant to this Indenture and the provision of Section 4.03 that the Company is relying on to
issue such Additional Notes; and




          (b) the issue price, the issue date and the CUSIP number of such Additional Notes;
provided, however, that no Additional Notes may be issued at a price that would
cause such Additional Notes to not be fungible for U.S. federal income tax purposes with any other
Notes issued under this Indenture.




          SECTION 2.14. Defaulted Interest. If the Company defaults in a payment of interest on
the Notes, the Company shall pay defaulted interest (plus interest on such defaulted interest to
the extent lawful) in any lawful manner. The Company may pay the defaulted interest to the persons
who are Holders on a subsequent special record date. The Company shall fix or cause to be fixed
any such special record date and payment date to the reasonable satisfaction of the Trustee and
shall promptly mail to each






38









 







Holder a notice that states the special record date, the payment date and the amount of
defaulted interest to be paid.




ARTICLE III




Redemption



          SECTION 3.01. Notices to Trustee. If the Company elects to redeem Notes pursuant to
Section 3.07, it shall notify the Trustee in writing of the applicable Redemption Date, the
principal amount of Notes to be redeemed and the paragraph of Section 3.07 pursuant to which the
redemption will occur.




          The Company shall give each notice to the Trustee provided for in this Section at least 30
days before the applicable Redemption Date unless the Trustee consents to a shorter period. Such
notice shall be accompanied by an Officers’ Certificate to the effect that such redemption shall
comply with the conditions herein.




          SECTION 3.02. Selection of Notes to Be Redeemed. If less than all of the Notes are to
be redeemed at any time, selection of Notes for redemption shall be made by the Trustee in
compliance with the requirements of the principal national securities exchange, if any, on which
the Notes are listed, or, if the Notes are not so listed, on a pro rata basis, by lot or by such
method as the Trustee shall deem fair and appropriate (in any case subject to the rules and
procedures of the applicable depositary); provided, however, that no Notes of $2,000 or less shall
be redeemed in part. Notes in denominations larger than $2,000 principal amount may be redeemed in
part, but only in whole multiples of $1,000.




          SECTION 3.03. Notice of Redemption. Notices of redemption shall be mailed by
first-class mail at least 30 but not more than 60 days before the applicable Redemption Date to
each Holder of Notes to be redeemed at its registered address. The Company may provide in such
notice that payment of the redemption price and performance of the Company’s obligations with
respect thereto may be performed by another Person. Notices of redemption may not be conditional;
provided, however, that notice of any redemption in connection with a redemption pursuant to
Section 3.07(c) may be given prior to the completion of the related public offering, and any such
redemption or notice may, at the Company’s discretion, be subject to one or more conditions
precedent, including completion of the related public offering.




          SECTION 3.04. Effect of Notice of Redemption. Once notice of redemption is mailed,
Notes called for redemption become due and payable on the Redemption Date and at the redemption
price stated in the notice. Upon surrender to the Paying Agent, such Notes shall be paid at the
redemption price stated in the notice, plus accrued interest to but excluding the applicable
Redemption Date (subject to the right of Holders of record on the relevant record date to receive
interest due on the related interest payment date), and such Notes shall be canceled by the
Trustee. Failure to give notice or any defect in the notice to any Holder shall not affect the
validity of the notice to any other Holder.







39









 








          SECTION 3.05. Deposit of Redemption Price. By no later than 10:00 a.m. (New York City
time) on the applicable Redemption Date, the Company shall deposit with the Paying Agent (or, if
the Company or a Subsidiary is the Paying Agent, shall segregate and hold in trust) money
sufficient to pay the redemption price of and accrued interest on all Notes to be redeemed on that
date other than Notes or portions of Notes called for redemption which have been delivered by the
Company to the Trustee for cancellation.




          SECTION 3.06. Notes Redeemed in Part. If any Note is to be redeemed in part only, the
notice of redemption that relates to such Note shall state the portion of the principal amount
thereof to be redeemed. A new Note in principal amount equal to the unredeemed portion thereof
shall be issued in the name of the Holder thereof upon cancellation of the original Note. Notes
called for redemption become due on the applicable Redemption Date. On and after the applicable
Redemption Date, interest ceases to accrue on Notes or portions of them called for redemption.




          SECTION 3.07. Optional Redemption. (a) At any time and from time to time prior to
February 1, 2014, the Notes may be redeemed at the Company’s option, in whole or in part, at a
redemption price equal to 100.0% of the principal amount of the Notes redeemed, plus accrued and
unpaid interest thereon, if any, to but excluding the applicable Redemption Date, subject to the
rights of Holders of Notes on the relevant record date to receive interest due on the relevant
interest payment date, plus the Applicable Premium as of the applicable Redemption Date.




          (b) On and after February 1, 2014, the Notes may be redeemed, at the Company’s option, in
whole or in part, at any time and from time to time, at the redemption prices set forth below. The
Notes shall be redeemable at the redemption prices (expressed as percentages of principal amount of
the Notes to be redeemed) set forth below plus accrued and unpaid interest thereon, if any, to but
excluding the applicable Redemption Date, subject to the right of Holders of Notes on the relevant
record date to receive interest due on the relevant interest payment date, if redeemed during the
12-month period beginning on February 1 of each of the years indicated below:




	 	 	 	 	 
	Year	 	Percentage	 
	2014
	 	 	104.563	%
	2015
	 	 	102.281	%
	2016 and thereafter
	 	 	100.000	%






          (c) At any time on or prior to February 1, 2013, the Company may on any one or more occasions
redeem up to an aggregate of 35.0% of the aggregate principal amount of the Notes at a redemption
price of 109.125% of the principal amount of the Notes redeemed, plus accrued and unpaid interest
thereon, if any, to but excluding the






40









 







applicable Redemption Date, subject to the rights of Holders of Notes on the relevant record
date to receive interest due on the relevant interest payment date, with the Net Cash Proceeds of a
public offering of common stock of the Company; provided, however, that at least 65.0% in aggregate
principal amount of the Notes remains outstanding immediately after the occurrence of such
redemption and that such redemption shall occur within 90 days of the date of the closing of such
public offering.




          (d) If the Redemption Date with respect to a Note to be redeemed is on or after an interest
record date and on or before the related interest payment date, any accrued and unpaid interest on
that Note shall be payable to the Person that was, at the close of business on such record date,
the Holder of that Note, and no additional interest for the period to which that interest record
date relates shall be payable with respect to that Note.




ARTICLE IV




Covenants



          SECTION 4.01. Payment of Notes. The Company shall promptly pay the principal of and
premium, if any, and interest on the Notes on the dates and in the manner provided in the Notes and
in this Indenture. Principal, premium, if any, and interest shall be considered paid on the date
due if on such date the Trustee or the Paying Agent holds in accordance with this Indenture money
sufficient to pay all principal, premium, if any, and interest then due.




          SECTION 4.02. SEC Reports. (a) Whether or not the Company is subject to the
reporting requirements of Section 13 or 15(d) of the Exchange Act, the Company shall file with the
SEC (subject to the next sentence) and provide the Trustee and Holders with such annual and other
reports as are specified in Sections 13 and 15(d) of the Exchange Act and applicable to a U.S.
corporation subject to such Sections, such reports to be so filed and provided at the times
specified for the filings of such reports under such Sections and containing all the information,
audit reports and exhibits required for such reports. If, at any time, the Company is not subject
to the periodic reporting requirements of the Exchange Act for any reason, the Company shall
provide the Trustee and Holders with such reports within the time periods specified in such
Exchange Act sections for a registrant that is not an accelerated filer or a large accelerated
filer; provided, however, that





     (i) no certifications or attestations concerning the financial statements or
disclosure controls and procedures or internal controls that would otherwise be
required pursuant to the Sarbanes-Oxley Act of 2002 shall be required (provided
further, however, that nothing contained in the terms herein shall otherwise
require the Company to comply with the terms of the Sarbanes-Oxley Act of 2002 at
any time when it would not otherwise be subject to such statute);



41









 






     (ii) the financial statements required of acquired businesses shall be limited
to the financial statements (in whatever form) that the Company receives in
connection with the applicable acquisition, whether or not audited;




     (iii) no financial statements of unconsolidated entities shall be required;




     (iv) no financial schedules specified in Regulation S-X under the Securities
Act shall be required;




     (v) the Company may limit the information disclosed in such reports in respect
of Item 402 of Regulation S-K under the Securities Act to the information
identified in Item 402 that is included other than through incorporation by
reference in this offering circular (which disclosure regarding such types of
information shall be presented in a manner consistent in all material respects with
the disclosure so contained in this offering circular);




     (vi) compliance with the requirements of Item 10(e) of Regulation S-K and
Regulation G under the Securities Act shall not be required (but the Company shall
provide a reconciliation to any non-GAAP financial measures as defined in
Regulation G under the Securities Act);




     (vii) information specified in Rules 3-10 and 3-16 of Regulation S-X under the
Securities Act with respect to Subsidiaries and affiliates shall not be required;
and




     (viii) no exhibits pursuant to Item 601 of Regulation S-K under the Securities
Act (other than in respect of instruments defining the rights of security holders
to the extent such instruments would be required to be filed by paragraph (b)(4) of
such Item 601 and material contracts to the extent such contracts would be required
to be filed by paragraph (b)(10) of such Item 601) shall be required; provided,
however, that contracts required to be filed only by either or both of paragraph
(b)(10)(ii)(A) and paragraph (b)(10)(iii) of such Item 601 shall not be required.



          (b) For so long as any Notes remain outstanding, the Company and the Guarantors shall furnish
to the Holders and to prospective investors, upon their request, the information required to be
delivered pursuant to Rule 144A(d)(4) under the Securities Act.




          (c) For so long as the Company files the foregoing reports and other information with the SEC,
the Company shall be deemed to have provided to the Trustee and Holders all of the foregoing
reports and other information if the Company has filed or furnished such reports and other
information with the SEC via the EDGAR filing system or any successor electronic filing system and
such reports are publicly available.






42









 







For the administrative convenience of the Trustee, the Company shall send an electronic copy
of each such filing to the Trustee at such e-mail address as the Trustee may specify from time to
time in accordance with the notice provisions of the Indenture; provided, however, that failure to
send any such electronic copies will not constitute a Default.




          SECTION 4.03. Limitation on Indebtedness. (a) The Company shall not and shall not
permit any Restricted Subsidiary to, directly or indirectly, create, incur, issue, assume,
guarantee or otherwise become directly or indirectly liable, contingently or otherwise, with
respect to (collectively, “incur”) any Indebtedness unless, on the date of such incurrence
and after giving effect thereto on a pro forma basis, the Fixed Charge Coverage Ratio exceeds 2.0
to 1.0 (any Indebtedness incurred pursuant to this Section 4.03(a) being herein referred to as
“Ratio Indebtedness”).




          (b) Section 4.03(a) shall not apply to the incurrence of any of the following items of
Indebtedness (collectively, “Permitted Indebtedness”):





     (i) Indebtedness incurred pursuant to any Credit Facility, including the
Guarantees thereof by the Guarantors, in an aggregate amount outstanding at any
time not to exceed $200,000,000 (any Indebtedness incurred pursuant to the
provisions set forth in this clause (i) being herein referred to as “Credit
Facility Indebtedness”);




     (ii) Indebtedness represented by the Notes issued on the Issue Date and the
related Notes Guarantees;




     (iii) Nonrecourse Indebtedness incurred by a Special Purpose Subsidiary under
a Permitted Securitization and any Refinancing Indebtedness with respect thereto
that is Nonrecourse Indebtedness;




     (iv) Indebtedness of the Company or any Restricted Subsidiary existing on the
Issue Date (other than Indebtedness set forth in clauses (i), (ii) and (iii) of
this Section 4.03(b));




     (v) Refinancing Indebtedness incurred by the Company or any Restricted
Subsidiaries to Refinance any Indebtedness that was incurred as Ratio Indebtedness
or as Permitted Indebtedness pursuant to clause (ii), (iv), (v) or (xiv) of this
Section 4.03(b);




     (vi) Indebtedness owing to and held by the Company or any Restricted
Subsidiaries; provided, however, that (A) if the Company or the Guarantor is the
obligor on such Indebtedness, such Indebtedness is expressly subordinated to the
prior payment in full in cash of all Notes Obligations and (B)(1) any subsequent
issuance or transfer of Equity Interests that results in any such Indebtedness
being owed to or held by a Person other than the Company or a Restricted Subsidiary
and (2) any sale or other transfer of any such Indebtedness to a Person that is
neither the Company nor a Restricted Subsidiary shall be deemed, in each case, to



43









 






constitute an incurrence of such Indebtedness by the Company or such
Restricted Subsidiary, as the case may be, that was not permitted by the provisions
set forth in this clause (vi);




     (vii) Hedging Obligations incurred in the ordinary course of business and not
for speculative purposes;




     (viii) Guarantees of the Notes and Guarantees of Indebtedness that was
incurred as Ratio Indebtedness or as Permitted Indebtedness pursuant to clause (v)
(to the extent the Refinanced Indebtedness was so guaranteed), (vii), (ix), (x),
(xi), (xiii), (xv) or (xvi) of this Section 4.03(b); provided, however, that if the
Indebtedness being Guaranteed is subordinated in right of payment to the Notes or a
Notes Guarantee, then such Guarantee shall be subordinated in right of payment to
the Notes or such Notes Guarantee to the same extent as the Indebtedness
guaranteed;




     (ix) Indebtedness constituting reimbursement obligations with respect to
letters of credit issued in the ordinary course of business, including letters of
credit in respect of workers’ compensation claims, health, disability or other
employee benefits or property, casualty or liability insurance or self-insurance,
or other Indebtedness with respect to obligations in the nature of reimbursement
obligations regarding workers’ compensation claims;




     (x) Indebtedness arising from agreements of the Company or any Restricted
Subsidiary providing for indemnification, adjustment of purchase price or similar
obligations, in each case incurred in connection with the disposition of any
business, assets or a Subsidiary;




     (xi) obligations in respect of performance, bid, appeal, surety and similar
bonds and completion guarantees provided by the Company or any Restricted
Subsidiary in the ordinary course of business;




     (xii) Indebtedness arising from the honoring by a bank or other financial
institution of a check, draft or similar instrument drawn against insufficient
funds in the ordinary course of business; provided, however, that such Indebtedness
is extinguished within five Business Days of its incurrence;




     (xiii) Indebtedness represented by Capital Lease Obligations, mortgage
financings or purchase money obligations, in each case incurred for the purpose of
financing all or any part of the purchase price or cost of construction or
improvement of property, plant or equipment used or useful in a Related Business
(where, in the case of a purchase, such purchase may be effected either directly or
through the purchase of the Capital Stock of the Person owning such property, plant
or equipment),



44









 






and any Indebtedness incurred to Refinance such Indebtedness, in an aggregate
amount at any time outstanding not in excess of $10,000,000;




     (xiv) Acquired Indebtedness; provided, however, that, after giving effect to
the merger or acquisition giving rise to the incurrence thereof, immediately after
such merger or acquisition either (x) the Company would be permitted to incur at
least $1.00 of additional Ratio Indebtedness pursuant to Section 4.03(a) or (y) the
Fixed Charge Coverage Ratio would be greater than the Fixed Charge Coverage Ratio
immediately prior to such acquisition or merger;




     (xv) Indebtedness to the extent the net proceeds thereof are promptly used to
purchase Notes tendered pursuant to a Change of Control Offer made as a result of a
Change of Control; and




     (xvi) additional Indebtedness of the Company or any Restricted Subsidiaries in
an aggregate amount at any time outstanding not in excess of the greater of (x)
$25,000,000 and (y) 2.5% of Consolidated Total Assets.



          (c) The Company shall not, and shall not permit any Guarantor to, incur any Indebtedness that
is contractually subordinated to any Indebtedness of the Company or such Guarantor unless such
Indebtedness is also contractually subordinated to the Notes or the Notes Guarantee of such
Guarantor (as applicable) on substantially identical terms; provided, however, that no Indebtedness
shall be deemed to be contractually subordinated to any other Indebtedness solely by virtue of
being unsecured or having a junior security interest in shared collateral.




          (d) For purposes of determining compliance with this Section 4.03,





     (i) in the event that an item of Indebtedness meets the criteria of more than
one of the categories of Permitted Indebtedness set forth in Section 4.03(b) or is
entitled to be incurred as Ratio Indebtedness, the Company shall, in its sole
discretion, classify such item of Indebtedness (or any portion thereof) in any
manner that complies with this Section 4.03, and such item of Indebtedness (or any
portion thereof) shall be treated as having been incurred pursuant to the
provisions set forth in only one of such clauses or pursuant to Section 4.03(a);
provided, however, that all Indebtedness outstanding under the Credit Agreement on
the Issue Date shall be deemed to have been incurred as Permitted Indebtedness
pursuant to Section 4.03(b)(i) and the Notes issued on the Issue Date shall be
deemed to have been incurred as Permitted Indebtedness pursuant to Section
4.03(b)(ii);




     (ii) the Company shall be entitled to divide and classify an item of
Indebtedness in more than one of the types of Indebtedness set forth above; and



45









 






     (iii) any Permitted Indebtedness originally classified as incurred pursuant to
the provisions set forth in one of the clauses of Section 4.03(b) (other than
pursuant to clause (i), (ii) or (iii) of Section 4.03(b)) may later be reclassified
by the Company such that it shall be deemed to have been incurred as Ratio
Indebtedness pursuant to Section 4.03(a) or as Permitted Indebtedness pursuant to
another clause of Section 4.03(b), as applicable, to the extent that such
reclassified Indebtedness could be incurred pursuant to such paragraph or clause at
the time of such reclassification.



          (e) Accrual of interest, the accretion of accreted value, the payment of interest or dividends
in the form of additional Indebtedness of the same instrument, accretion of original issue discount
or liquidation preference and increases in the amount of Indebtedness outstanding solely as a
result of fluctuations in interest rates or in the exchange rate of currencies shall not be deemed
to be an incurrence of Indebtedness for purposes of this Indenture. Guarantees of, or obligations
in respect of letters of credit relating to, Indebtedness that is otherwise included in the
determination of a particular amount of Indebtedness shall not be included in the determination of
such amount of Indebtedness; provided, however, that the incurrence of the Indebtedness underlying
such Guarantee or letter of credit, as the case may be, was subject to and in compliance with this
Section 4.03.




          (f) For purposes of determining compliance with any U.S. dollar restriction on the incurrence
of Indebtedness where the Indebtedness incurred is denominated in a different currency, the amount
of such Indebtedness shall be the U.S. Dollar Equivalent determined on the date of the incurrence
of such Indebtedness; provided, however, that if any such Indebtedness denominated in a different
currency is subject to a currency agreement with respect to U.S. dollars covering all principal,
premium, if any, and interest payable on such Indebtedness, the amount of such Indebtedness
expressed in U.S. dollars shall be as provided in such currency agreement. The maximum amount of
Indebtedness that the Company and the Restricted Subsidiaries may incur pursuant to this Section
4.03 shall not be deemed to be exceeded, with respect to any outstanding Indebtedness, solely as a
result of fluctuations in interest rates or the exchange rate of currencies.




          SECTION 4.04. Limitation on Restricted Payments. (a) The Company shall not, and
shall not permit any Restricted Subsidiary to, directly or indirectly,





     (i) declare or pay any dividends or make any other distributions of any sort
in respect of its Capital Stock (including any payment in connection with any
merger or consolidation involving such Person) or similar payment to the direct or
indirect holders of its Capital Stock (other than (A) dividends or distributions
payable solely in its Capital Stock (other than Disqualified Stock), (B) dividends
or distributions payable solely to the Company or a Restricted Subsidiary and (C)
pro rata dividends or other distributions made by a Subsidiary that
is not a Wholly-Owned Restricted Subsidiary to minority stockholders (or owners of



46









 






minority interests in the case of a Subsidiary that is an entity other than a
corporation));




     (ii) purchase, repurchase, redeem, defease or make any other acquisition or
retirement for value of any Capital Stock of the Company held by any Person (other
than by a Restricted Subsidiary) or of any Capital Stock of a Restricted Subsidiary
held by any Affiliate of the Company (other than by a Restricted Subsidiary),
including in connection with any merger or consolidation and including the exercise
of any option to exchange any Capital Stock (other than into Capital Stock of the
Company that is not Disqualified Stock);




     (iii) purchase, repurchase, redeem, defease or make any other acquisition or
retirement for value, prior to scheduled maturity, scheduled repayment, principal
installment or scheduled sinking fund payment of any Subordinated Obligations of
the Company or any Guarantor (other than (A) from the Company or a Restricted
Subsidiary or (B) the purchase, repurchase, redemption, defeasance or other
acquisition or retirement of Subordinated Obligations purchased in anticipation of
satisfying a sinking fund obligation, principal installment or final maturity, in
each case due within one year of the date of such purchase, repurchase, redemption,
defeasance or other acquisition or retirement); or




     (iv) make any Investment (other than a Permitted Investment) in any Person,


(all such payments and other actions set forth in clauses (i) through (iv) of this Section 4.04(a)
being collectively referred to as “Restricted Payments”) unless, at the time of and after
giving effect to such Restricted Payment:





     (1) no Default shall have occurred and be continuing (or would result
therefrom);




     (2) the Company is entitled to Incur an additional $1.00 of Ratio
Indebtedness pursuant to Section 4.03(a); and




     (3) the aggregate amount of such Restricted Payment and all other
Restricted Payments since the Issue Date would not exceed the sum of
(without duplication):




     (A) 100.0% of the Consolidated Net Income accrued during the
period (treated as one accounting period) from October 1, 2009 to
the end of the most recent fiscal quarter ending immediately prior
to the date of such Restricted Payment (or, in case such
Consolidated Net Income shall be a deficit, minus 100.0% of such
deficit); plus



47









 






     (B) 100.0% of the aggregate Net Cash Proceeds or Fair Market
Value of any asset (other than cash) received by the Company
either (x) from the issuance or sale of its Qualified Capital
Stock subsequent to the Issue Date or (y) as a contribution in
respect of its Qualified Capital Stock from its shareholders
subsequent to the Issue Date, but excluding in each case any Net
Cash Proceeds that are used to redeem Notes in accordance with
Section 3.07(c); plus




     (C) the amount by which the principal amount of Indebtedness
of the Company (other than Indebtedness owing to a Subsidiary) is
reduced upon the conversion or exchange subsequent to the Issue
Date of any Indebtedness of the Company converted or exchanged for
Qualified Capital Stock of the Company (less the amount of any
cash, or the fair value of any other property, distributed by the
Company upon such conversion or exchange); provided, however, that
the foregoing amount shall not exceed the gross proceeds (prior to
fees and transaction expenses) received by the Company or any
Restricted Subsidiary from the sale of such Indebtedness
(excluding such gross proceeds from sales to a Subsidiary of the
Company or to an employee stock ownership or benefit plan of the
Company or any of its Subsidiaries); plus




     (D) an amount equal to the sum of (x) the aggregate amount of
cash and the Fair Market Value of any asset (other than cash)
received by the Company or any Restricted Subsidiary subsequent to
the Issue Date with respect to Investments (other than Permitted
Investments) made by the Company or any Restricted Subsidiary in
any Person subsequent to the Issue Date and resulting from
repurchases, repayments, liquidations or redemptions of such
Investments by such Person, proceeds realized on the sale of such
Investment and proceeds representing the return of capital, and
(y) in the event that the Company redesignates an Unrestricted
Subsidiary to be a Restricted Subsidiary, the portion
(proportionate to the Company’s equity interest in such
Subsidiary) of the Fair Market Value of the net assets of such
Unrestricted Subsidiary at the time such Unrestricted Subsidiary
is designated a Restricted Subsidiary; provided,
however, that the foregoing sum shall not exceed, in the
case of any such Person or Unrestricted Subsidiary, the amount of
Investments (excluding Permitted Investments) previously made by
the Company



48









 






or any Restricted Subsidiary in such Person or Unrestricted
Subsidiary.



(b) The foregoing provisions shall not prohibit:





     (i) any Restricted Payment made out of the Net Cash Proceeds of the
substantially concurrent sale of, or made in exchange for, Qualified Capital Stock
of the Company or a substantially concurrent cash capital contribution received by
the Company from its shareholders with respect to its Qualified Capital Stock;
provided, however, that (A) such Restricted Payment shall be excluded in the
calculation of the amount of Restricted Payments and (B) the Net Cash Proceeds from
such sale or such cash capital contribution (to the extent so used for such
Restricted Payment) shall be excluded from the calculation of amounts under Section
4.04(a)(3)(B);




     (ii) any purchase, repurchase, redemption, defeasance or other acquisition or
retirement for value of Subordinated Obligations of the Company or of a Guarantor
made in exchange for, or out of the proceeds of the substantially concurrent
incurrence of, Indebtedness of such Person which is permitted to be incurred
pursuant to Section 4.03; provided, however, that such purchase, repurchase,
redemption, defeasance or other acquisition or retirement for value shall be
excluded in the calculation of the amount of Restricted Payments;




     (iii) the payment of any dividend, distribution or redemption of any Capital
Stock or Subordinated Indebtedness within 60 days after the date of declaration
thereof or call for redemption if, at such date of declaration or call for
redemption, such payment or redemption was permitted by Section 4.04(a) (the
declaration of such payment shall be deemed a Restricted Payment under Section
4.04(a) as of the date of declaration and the payment itself shall be deemed to
have been paid on such date of declaration and shall not also be deemed a
Restricted Payment under Section 4.04(a)); provided, however, that any Restricted
Payment made in reliance on the provisions set forth in this clause (iii) shall
reduce the amount available for Restricted Payments pursuant to Section 4.04(a)(3)
only once;




     (iv) so long as no Default has occurred and is continuing, the purchase,
redemption or other acquisition of shares of Capital Stock of the Company or any of
its Subsidiaries from officers, former officers, employees, former employees,
directors or former directors of the Company or any of its Subsidiaries (or
permitted transferees of such officers, former officers, employees, former
employees, directors or former directors), pursuant to the terms of agreements
(including employment agreements) or plans (or amendments thereto) approved by



49









 






the Board of Directors under which such individuals purchase or sell or are
granted, or are granted the option to purchase or sell, shares of such Capital
Stock; provided, however, that the aggregate amount of such Restricted Payments
(excluding amounts representing cancellation of Indebtedness) shall not exceed
$5,000,000 in any calendar year (with unused amounts in any calendar year being
carried over to the succeeding calendar years subject to a maximum of $10,000,000
in any calendar year); provided further, however, that such
Restricted Payments shall be excluded in the calculation of the amount of
Restricted Payments;




     (v) the declaration and payments of dividends on Disqualified Stock issued
pursuant to Section 4.03; provided, however, that such dividends shall be excluded
in the calculation of the amount of Restricted Payments;




     (vi) repurchases of Capital Stock deemed to occur upon exercise of stock
options if such Capital Stock represents a portion of the exercise price of such
options; provided, however, that such Restricted Payments shall be excluded in the
calculation of the amount of Restricted Payments;




     (vii) cash payments in lieu of the issuance of fractional shares in connection
with the exercise of warrants, options or other securities convertible into or
exchangeable for Capital Stock of the Company; provided, however, that any such
cash payment shall not be for the purpose of evading the limitation of this Section
4.04 (as determined in good faith by the Board of Directors); provided
further, however, that such payments shall be excluded in the
calculation of the amount of Restricted Payments;




     (viii) in the event of a Change of Control, and if no Default shall have
occurred and be continuing, the payment, purchase, redemption, defeasance,
discharge, cash-collateralization or other acquisition or retirement of
Subordinated Obligations of the Company or any Guarantor, in each case, at a
purchase price not greater than 101.0% of the principal amount of such Subordinated
Obligations, plus any accrued and unpaid interest thereon; provided, however, that
prior to such payment, purchase, redemption, defeasance, discharge,
cash-collateralization or other acquisition or retirement, the Company (or a third
party to the extent permitted by this Indenture) has made a Change of Control Offer
with respect to the Notes as a result of such Change of Control and has repurchased
(or deposited with the Trustee funds sufficient to repurchase) all Notes validly
tendered and not withdrawn in connection with such Change of Control Offer;
provided further, however, that such payments, purchases,
redemptions, defeasances, discharges, cash-collateralizations or other acquisitions
or retirements shall be included in the calculation of the amount of Restricted
Payments;



50









 






     (ix) payments of intercompany subordinated Permitted Indebtedness, the
incurrence of which was permitted by Section 4.03(b)(vi); provided, however, with
respect to payments other than to the Company or a Guarantor, that no Default has
occurred and is continuing or would otherwise result therefrom; provided
further, however, that such payments shall be excluded in the
calculation of the amount of Restricted Payment; or




     (x) other Restricted Payments in an amount which, when taken together with all
other Restricted Payments made pursuant to this clause (x), does not exceed
$225,000,000; provided, however, that such Restricted Payment shall be excluded in
the calculation of the amount of Restricted Payments.



          (c) The amount of all Restricted Payments (other than cash) shall be the Fair Market Value on
the date of the Restricted Payment of the assets (other than cash) proposed to be transferred. In
the event that a Restricted Payment meets the criteria of more than one of the exceptions set forth
in clauses (i) through (x) of Section 4.04(b) or is permitted to be made by Section 4.04(a), the
Company, in its sole discretion, may divide and classify such Restricted Payment in any manner that
complies with this Section 4.04.




          SECTION 4.05. Dividend and Other Payment Restrictions Affecting Subsidiaries. The
Company shall not, and shall not permit any Restricted Subsidiaries to, directly or indirectly,
create or otherwise cause or suffer to exist or become effective any encumbrance or restriction on
the ability of any Restricted Subsidiary to:





     (i) (A) pay dividends or make any other distributions to the Company or any
Restricted Subsidiaries on its Capital Stock or with respect to any other interest
or participation in, or measured by, its profits, or (B) pay any Indebtedness owed
to the Company or any Restricted Subsidiaries,




     (ii) make loans or advances to the Company or any Restricted Subsidiaries, or




     (iii) transfer any of its properties or assets to the Company or any
Restricted Subsidiaries,


except, in each case, for such encumbrances or restrictions existing under or by reason of:





     (1) this Indenture, the Notes and the Security Documents;




     (2) agreements existing on the Issue Date to the extent and in the
manner such agreements are in effect on the Issue Date, including the
Credit Agreement;




     (3) applicable law;



51









 






     (4) any instrument governing Acquired Indebtedness or Capital Stock
of a Person acquired by the Company or any Restricted Subsidiary as in
effect at the time of such acquisition (except to the extent such
Indebtedness was incurred in connection with or in contemplation of such
acquisition), which encumbrance or restriction is not applicable to any
Person, or the properties or assets of any Person, other than the Person,
or the property or assets of the Person, so acquired; provided, however,
that, in the case of an instrument governing Acquired Indebtedness, such
Indebtedness was permitted by the terms of this Indenture to be incurred;




     (5) customary non-assignment provisions in leases entered into in the
ordinary course of business and consistent with past practices;




     (6) purchase money obligations for property or assets acquired in the
ordinary course of business that impose restrictions of the nature set
forth in clause (iii) of this Section 4.05 on the property or assets so
acquired;




     (7) any encumbrance or restriction in an agreement effecting a
Refinancing of Indebtedness incurred pursuant to an agreement referred to
in clause (1), (2) or (4) of this Section 4.05 or this clause (7) or
contained in any amendment to an agreement enumerated in such clause (1),
(2) or (4) or this clause (7); provided, however, that the encumbrances
and restrictions contained in any such refinancing agreement or amendment
are not materially less favorable to the Company (as determined by the
Board of Directors in its reasonable and good faith judgment) than
encumbrances and restrictions contained in such predecessor agreements;




     (8) the requirements of any Permitted Securitization that are
exclusively applicable to any bankruptcy remote Special Purpose Subsidiary
formed in connection therewith;




     (9) the requirements of any Standard Securitization Undertakings;




     (10) in the case of clause (iii) of this Section 4.05, restrictions
contained in security agreements or mortgages securing Indebtedness of a
Restricted Subsidiary to the extent such restrictions restrict the
transfer of the property subject to the Liens created thereby, or to the
extent not constituting Collateral, the Capital Stock of the Person whose
assets consist, directly or indirectly, primarily of the real property
securing such



52









 






Indebtedness; provided, however, that such Liens were otherwise
permitted to be incurred under this Indenture;




     (11) restrictions with respect to any Investment imposed in
connection with the making of such Investment;




     (12) any restriction with respect to a Restricted Subsidiary imposed
pursuant to an agreement entered into for the sale or disposition of all
or substantially all of the Capital Stock or assets of such Restricted
Subsidiary pending the closing of such sale or disposition; or




     (13) assignment provisions and provisions with respect to the
distribution of assets or property or joint venture or partnership
interests in joint venture or partnership agreements and other similar
agreements entered into in the ordinary course of business that are
customary for such agreements; provided, however, that such provisions in
the aggregate, in the opinion of the management of the Company, do not
materially and adversely affect the ability of the Company to make
principal or interest payments on the Notes.



          SECTION 4.06. Limitation on Asset Sales. (a) The Company shall not, and shall not
permit any Restricted Subsidiary to, consummate an Asset Sale unless:





     (i) the Company (or the Restricted Subsidiary, as the case may be) receives
consideration at the time of such Asset Sale at least equal to the Fair Market
Value of the assets or Equity Interests issued or sold or otherwise disposed of;




     (ii) at least 75.0% of the consideration therefor received by the Company or
such Restricted Subsidiary is in the form of cash or Cash Equivalents; provided,
however, that, for purposes of the provisions set forth in this clause (ii) and for
no other purpose, the amount of (1) any liabilities (as shown on the Company’s or
such Restricted Subsidiary’s most recent balance sheet) of the Company or any
Restricted Subsidiary (other than contingent liabilities and liabilities that are
by their terms subordinated to the Notes or any Guarantee thereof) that are (x)
secured by such assets on a basis that is prior to or ratable with the Notes or (y)
that are unsecured so long as the subject assets do not constitute Collateral, that
are, in either case, assumed by the transferee of any such assets pursuant to a
customary novation agreement that releases the Company or such Restricted
Subsidiary from further liability, (2) any securities, notes or other obligations
received by the Company or any such Restricted Subsidiary from such transferee that
are converted by the Company or any Restricted Subsidiary into cash or Cash
Equivalents within 180 days of receipt, to the extent of the cash or Cash
Equivalents received and (3) the



53









 






Fair Market Value of any property or assets received (including any Capital
Stock of any Person that shall be a Restricted Subsidiary following receipt
thereof) that are used or useful in any Related Business (provided, however, that,
except for Excluded Property, to the extent that the assets or rights disposed of
in such Asset Sale constituted Collateral, such property or assets are pledged as
Collateral under the Security Documents substantially contemporaneously with such
receipt) shall be deemed to be cash;




     (iii) to the extent of any Net Cash Proceeds received by the Company or any
Restricted Subsidiary from an Asset Sale:




     (1) the Company or any Restricted Subsidiary may use such Net Cash
Proceeds (A) to prepay or otherwise pay or repay, purchase, redeem,
defease, discharge, cash-collateralize or otherwise acquire or retire any
Credit Facility Indebtedness and Permitted Future Secured Indebtedness
then outstanding or any other Indebtedness secured by a Permitted
Collateral Lien or (B) to acquire property or assets that, upon
acquisition thereof, constitute Collateral;




     (2) any of such Net Cash Proceeds not required to be delivered to the
Trustee pursuant to Section 4.06(a)(iii)(3) and not already used as
permitted by Section 4.06(a)(iii)(1) may be applied by the Company or any
Restricted Subsidiary within 365 days of receipt thereof as follows:




     (x) to prepay or otherwise pay or repay, purchase, redeem,
defease, discharge, cash-collateralize or otherwise acquire or
retire any Credit Facility Indebtedness or prepay or otherwise pay
or repay, purchase, redeem, defease, discharge, cash-collateralize
or otherwise acquire or retire other Indebtedness of the Company
or any of the Restricted Subsidiaries;




     (y) to make an investment in Replacement Assets; or




     (z) to make a combination of prepayment or other payment or
repayment, purchase, redemption, defeasance, discharge,
cash-collateralization or other acquisition or retirement and
investment permitted by the provisions set forth in the foregoing
clauses (x) and (y); and




     (3) if such Asset Sale resulted in the receipt of Net Cash Proceeds
from a disposition of Collateral (x) such Net Cash Proceeds shall, to the
extent of the amount, if any, thereof in



54









 






excess of the aggregate amount of Net Cash Proceeds from such Asset
Sale applied as set forth in the immediately-preceding clauses (1) and
(2), be delivered promptly to the Trustee for application in accordance
with the provisions set forth in the immediately-succeeding clause (y) and
(y) an Asset Sale Offer Trigger Date shall be deemed to have occurred and
the Company shall be required to make an Asset Sale Offer with such Net
Cash Proceeds delivered to the Trustee in accordance with this Section
4.06; and



     (iv) if such Asset Sale involves a disposition of Collateral by the Company or
a Guarantor, at the time of such Asset Sale and after giving pro forma effect
thereto, the Collateral Coverage Ratio would equal or exceed 1.25 to 1.0.




          (b) On (i) in the case of Net Cash Proceeds to which Section 4.06(a)(iii)(2) applies, the
366th day after receipt thereof or (ii) in the case of Net Cash Proceeds to which Section
4.06(a)(iii)(3) applies, the date on which an Asset Sale Offer Trigger Date is deemed to have
occurred (each, an “Asset Sale Offer Trigger Date”), such aggregate amount of Net Cash
Proceeds which have not been applied on or before such Asset Sale Offer Trigger Date as permitted
or as required by Section 4.06(a) (such amount being “Excess Proceeds”), shall be applied
by the Company or one or more Restricted Subsidiaries to make an offer to purchase (the “Asset
Sale Offer”) to all Holders on a date not less than 30 nor more than 60 days following the
applicable Asset Sale Offer Trigger Date, from all Holders on a pro rata basis, that amount of
Notes equal to the applicable Excess Proceeds (minus any federal, state, provincial, foreign and
local taxes payable as a result of the transfer or deemed transfer of funds from the entity that
made the Asset Sale to the entity that is making such Asset Sale Offer) at a price equal to 100.0%
of the principal amount of the Notes to be purchased, plus accrued and unpaid interest thereon, if
any, to but excluding the date of purchase; provided, however, that if at any time any non-cash
consideration received by the Company or any Restricted Subsidiary, as the case may be, in
connection with any Asset Sale is converted into or sold or otherwise disposed of for cash (other
than interest received with respect to any such non-cash consideration), then, solely for purposes
of the definition of Net Cash Proceeds, such conversion or disposition shall be deemed to
constitute an Asset Sale, and the Net Cash Proceeds thereof shall be applied in accordance with the
provisions of this Section 4.06 governing the application of the Net Cash Proceeds from an Asset
Sale. If Holders do not tender Notes in an aggregate principal amount at least equal to the
applicable Excess Proceeds for purchase in connection with any Asset Sale Offer, the Company and
the Restricted Subsidiaries may use the portion of the Excess Proceeds not used to purchase Notes
for any purpose not prohibited by this Indenture. Upon completion of each Asset Sale Offer, the
Excess Proceeds shall be reduced by the amount of the Asset Sale Offer. Notwithstanding the
occurrence of an Asset Sale Offer Trigger Date, the Company and the Restricted Subsidiaries may
defer the Asset Sale Offer until there is an aggregate unutilized Excess Proceeds of at least
$25,000,000 resulting from one or more Asset Sales (at which time, the entire unutilized Excess
Proceeds, and not






55









 







just the amount in excess of $25,000,000, shall be applied as required pursuant to this
Section 4.06).




          If the date on which a Note is purchased pursuant to an Asset Sale Offer is on or after an
interest record date and on or before the related interest payment date, any accrued and unpaid
interest on that Note shall be paid to the Person that was, at the close of business on such record
date, the Holder of that Note, and no additional interest for the period to which that interest
record date relates shall be payable, with respect to that Note, to the Person who tendered that
Note pursuant to the Asset Sale Offer.




          (c) In the event of the transfer of substantially all (but not all) of the property and assets
of the Company and the Restricted Subsidiaries as an entirety in a transaction permitted under
Section 5.01 to a Person who assumes all the obligations of the Company under the Notes and this
Indenture in accordance with Section 5.01(a)(ii), which transaction does not constitute a Change of
Control, such Person shall be deemed to have consummated an Asset Sale of the properties and assets
of the Company and the Restricted Subsidiaries not so transferred for an amount of cash equal to
the Fair Market Value of such properties and assets and such Person shall be deemed to have
received Net Cash Proceeds therefrom in an amount equal to such Fair Market Value and shall be
required to apply cash in such amount in accordance with the provisions of this Section 4.06
governing the application of the Net Cash Proceeds from an Asset Sale as if such cash constituted
Net Cash Proceeds from an Asset Sale; provided, however, that such Person shall not be deemed to
have consummated an Asset Sale with respect to (A) any Hedging Obligations not so transferred and
(B) any properties and assets as to which such deemed Asset Sale would consist of an actual or
deemed surrender or waiver of contract rights or a settlement, release or surrender of contract,
tort or other claims of any kind; provided further, however, that such Person shall
not be deemed to have consummated an Asset Sale except to the extent that the properties and assets
of the Company and the Restricted Subsidiaries not so transferred, excluding properties and assets
set forth in the immediately-preceding clauses (A) and (B), exceed $10,000,000 in Fair Market
Value.




          (d) Each Asset Sale Offer shall be mailed to the record Holders as shown on the register of
Holders within 30 days following the Asset Sale Offer Trigger Date, with a copy to the Trustee, and
shall comply with the procedures set forth in this Indenture. Upon receiving notice of the Asset
Sale Offer, Holders may elect to tender their Notes in whole or in part in integral multiples of
$1,000 in exchange for cash. To the extent Holders properly tender Notes in an amount exceeding
the Excess Proceeds, the tendered Notes shall be purchased on a pro rata basis based on the amount
of Notes tendered. An Asset Sale Offer shall remain open for a period of 20 business days or such
longer period as may be required by law.




          The Company shall comply with the requirements of Rule 14e-1 under the Exchange Act and any other securities laws and regulations thereunder to the extent such laws and regulations are applicable in connection with the repurchase of Notes pursuant to an Asset Sale Offer. To the extent that the provisions of any securities laws or





56











 




regulations conflict with the requirements of this Section 4.06, the Company shall comply with the applicable securities laws and regulations and
shall not be deemed to have breached its obligations under such covenant by virtue thereof.




          (e) The Company shall not, and shall not permit any Guarantor to, sell, convey, transfer,
lease, assign or otherwise transfer any of the Collateral other than in accordance with the
Security Documents.




          SECTION 4.07. Limitation on Affiliate Transactions. (a) The Company shall not, and
shall not permit any Restricted Subsidiary to, enter into, or be a party to, any transaction or
series of related transactions with any Affiliate of the Company or such Restricted Subsidiary
(other than the Company or a Restricted Subsidiary) (each, an “Affiliate Transaction”),
except for Affiliate Transactions:





     (i) pursuant to terms that, taken as a whole, are not materially less
favorable to the Company or such Restricted Subsidiary than would be obtained in a
comparable arm’s length transaction with a Person that is not an Affiliate
(“Arm’s Length Terms”); or




     (ii) (1) involving aggregate consideration less than or equal to $15,000,000
and on Arm’s Length Terms,




     (2) involving aggregate consideration in an amount less than or equal
to $30,000,000 and determined by the disinterested members of the Board of
Directors to be on Arm’s Length Terms, or




     (3) where the Board of Directors has received a written opinion from
an Independent Qualified Party to the effect that the terms of such
Affiliate Transaction are fair, from a financial point
of view, to the Company or such Restricted Subsidiary or constitute
Arm’s Length Terms.




(b) Section 4.07(a) shall not apply to the following:




     (A) any employment, consulting, service, indemnification, termination
or severance agreement or compensation plan or arrangement entered into by
the Company or any Restricted Subsidiary, and the transactions customarily
provided for by any such agreement, plan or arrangement;




     (B) reasonable compensation (including bonuses) and other benefits
(including retirement, health, stock option and other benefit plans and
transactions contemplated thereby) for directors, officers, employees and
consultants of the Company and its Subsidiaries;



57









 






     (C) transactions between or among the Company and/or any Restricted
Subsidiaries;




     (D) any transaction with any non-Affiliate that becomes an Affiliate
as a result of such transaction;




     (E) (x) any agreement existing on the Issue Date, as in effect on the
Issue Date, or as modified, amended, amended and restated, supplemented or
replaced so long as the terms of such agreement as modified, amended,
amended and restated, supplemented or replaced, taken as a whole, are not
materially more disadvantageous to the Company and the Restricted
Subsidiaries, taken as a whole, than the terms of such agreement as in
effect on the Issue Date, as determined in good faith by the Board of
Directors, and (y) any transaction contemplated by any such agreement;




     (F) loans or advances to employees or consultants in the ordinary
course of business or approved by the Board of Directors, but in any event
not to exceed $2,000,000 in the aggregate outstanding at any one time, and
cancellation or forgiveness or modification of the terms of such loans or
advances;




     (G) the issuance or sale of any Equity Interests (other than
Disqualified Stock) of the Company;




     (H) (x) the making of dealer loans, and the effecting of transactions
with respect to such dealer loans, in the ordinary course of business and
on substantially the same basis as that on which the Company and its
Subsidiaries make dealer loans to non-Affiliate dealer-partners and engage in transactions with respect to
such dealer loans, and (y) other transactions with customers, clients,
joint-venture partners, suppliers or purchasers or sellers of goods or
services, in each case in the ordinary course of business, which are fair
to the Company and the Restricted Subsidiaries in the reasonable
determination of the Company or are on terms not materially less
favorable, taken as a whole, to the Company and the Restricted
Subsidiaries than might reasonably have been obtained from a
non-Affiliate;




     (I) transactions with a Person that is an Affiliate of the Company or
a Restricted Subsidiary solely because the Company directly or indirectly
owns Equity Interests in, or controls, such Affiliate, other than
transactions with Unrestricted Subsidiaries;




     (J) the transfer of Dealer Loans or Purchased Contracts and trust
certificates issued to evidence the residual interest in Dealer



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Loan Pools or Purchased Contracts or outright purchases of Installment Contracts, and
the participation therein, and related rights and assets in connection
with any Permitted Securitization, and any other transaction effected in
the ordinary course as part of a Permitted Securitization;




     (K) the making of any Restricted Payment permitted pursuant to
Section 4.04;




     (L) the provision of management, financial and operational services
by the Company or any Restricted Subsidiary to Unrestricted Subsidiaries
or joint ventures on terms that are determined by the Board of Directors
to be fair to the Company or such Restricted Subsidiary;




     (M) any transaction with an Affiliate where the only consideration
paid by the Company or any Restricted Subsidiary consists of Equity
Interests (other than Disqualified Stock) of the Company; and




     (N) any transaction between a Special Purpose Subsidiary and any
Person that is an Affiliate of such Special Purpose Subsidiary solely
because such Special Purpose Subsidiary directly or indirectly owns Equity
Interests in, or controls, such Affiliate.



          SECTION 4.08. Limitation on Line of Business. The Company shall not, and shall not
permit any Restricted Subsidiary to, engage in any business other than Related Businesses, except
to such extent as would not be material to the Company and its Subsidiaries taken as a whole.




          SECTION 4.09. Change of Control. (a) Upon the occurrence of a Change of Control,
each Holder of Notes shall have the right to require the Company to repurchase all or any part
(equal to $2,000 or an integral multiple of $1,000 in excess thereof) of such Holder’s Notes
pursuant to the offer set forth below (the “Change of Control Offer”) at an offer price
equal to 101.0% of the aggregate principal amount of such Holder’s Notes to be purchased plus
accrued and unpaid interest thereon, if any, to but excluding the date of purchase (the “Change
of Control Payment”). Within 30 days following any Change of Control, the Company shall mail a
notice to each Holder and to the Trustee (for the purposes of notice) describing the transaction or
transactions that constitute the Change of Control and offering to repurchase Notes on the date
specified in such notice, which date shall be no earlier than 30 days and no later than 60 days
from the date such notice is mailed (the “Change of Control Payment Date”), pursuant to the
procedures required by this Indenture and set forth in such notice. If the Change of Control
Payment Date with respect to a Note is on or after an interest record date and on or before the
related interest payment date, any accrued and unpaid interest on that Note shall be paid to the
Person that was, at the close of business on such record date, the Holder of that Note, and the
Change of Control Payment with respect to that Note for the







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period to which that interest record date relates shall not include accrued and unpaid interest thereon. The Company shall comply with
the requirements of Rule 14e-1 under the Exchange Act and any other securities laws and regulations
thereunder to the extent such laws and regulations are applicable in connection with the repurchase
of the Notes as a result of a Change of Control.




          (b) On the Change of Control Payment Date, the Company shall, to the extent lawful, (i) accept
for payment all Notes or portions thereof properly tendered pursuant to the Change of Control
Offer, (ii) deposit with the Paying Agent an amount equal to the Change of Control Payment in
respect of all Notes or portions thereof so tendered and (iii) deliver or cause to be delivered to
the Trustee the Notes so accepted together with an Officers’ Certificate stating the aggregate
principal amount of Notes or portions thereof being purchased by the Company. The Paying Agent
shall promptly mail to each Holder of Notes so tendered the Change of Control Payment for such
Notes, and the Trustee shall promptly authenticate and mail (or cause to be transferred by book
entry) to each Holder a new Note equal in principal amount to any unpurchased portion of the Notes
surrendered, if any; provided, however, that each such new Note shall be in a principal amount of
$2,000 or an integral multiple of $1,000 in excess thereof. The Company shall publicly announce
the results of the Change of Control Offer on or as soon as practicable after the Change of Control
Payment Date.




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




          SECTION 4.10. Limitation on Liens. The Company shall not, and shall not permit any
Restricted Subsidiary to, directly or indirectly, create, incur, assume or
otherwise cause or suffer to exist or become effective any Lien of any kind upon any of their
assets, now owned or hereafter acquired, other than:





     (i) in the case of any asset that does not constitute Collateral, Permitted
Liens; provided, however, that any Lien on such asset shall be permitted
notwithstanding that it is not a Permitted Lien if all payments due under this
Indenture and the Notes are secured on an equal and ratable basis with the
obligations so secured until such time as such obligations are no longer secured by
a Lien; and




     (ii) in the case of any asset that constitutes Collateral, Permitted
Collateral Liens.



          In the case of the proviso in clause (i) of this Section 4.10, if the obligations so secured
are expressly subordinated by their terms to the Notes, the Lien securing such obligations shall
also be so subordinated by its terms at least to the same extent.






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          SECTION 4.11. Additional Guarantors. If any of the Company’s Restricted Subsidiaries
that is not a Guarantor issues a Guarantee of, or grants a security interest in any of its assets
to secure, any Obligations secured by the Collateral, then the Company shall cause such Restricted
Subsidiary to:





     (i) execute and deliver a supplemental indenture providing for such Restricted
Subsidiary’s Notes Guarantee on the terms set forth in Article X and execute and
deliver such documentation mutatis mutandis with respect to collateral as shall be
necessary to provide for Liens on such Restricted Subsidiary’s assets constituting
Collateral to secure such Notes Guarantee on the terms set forth in the Security
Documents and Article X; and




     (ii) deliver to the Trustee an opinion of counsel that such Notes Guarantee
has been duly authorized, executed and delivered by such Restricted Subsidiary and
constitutes a legal, valid, binding and enforceable obligation of such Restricted
Subsidiary, in each case subject to customary qualifications.



          Thereafter, such Restricted Subsidiary shall be a Guarantor for all purposes of this Indenture
until released from its Notes Guarantee in accordance with this Indenture.




          SECTION 4.12. Impairment of Security Interest. (a) The Company shall not, and shall
not permit any Restricted Subsidiary to, take, or knowingly omit to take, any action, which action
or omission would have the effect of causing a Lien to be created in favor of any of the Secured
Creditors other than the Notes Secured Creditors on any property or assets of the type that would
constitute Collateral unless a Lien exists or is created in favor of the Collateral Agent for the
benefit of the Notes Secured Creditors with respect to such property or assets. Such Lien in favor of the Collateral Agent
for the benefit of the Notes Secured Creditors shall at all times be in accordance with any
applicable provisions of this Indenture and the Security Documents.





(b) Notwithstanding Section 4.12(a),




     (i) the Capital Stock and other securities of any Subsidiary of the Company
that are owned by the Company or any Guarantor and that otherwise constitute
Collateral shall constitute Collateral for the benefit of the Notes Secured
Creditors only to the extent that such Capital Stock and other securities can
secure the Notes without Rule 3-16 of Regulation S-X under the Securities Act (or
any other law, rule or regulation) (“Rule 3-16”) requiring separate
financial statements of such Subsidiary to be filed with the SEC (or any other
governmental agency);




     (ii) in the event that Rule 3-16 requires or is amended, modified or
interpreted by the SEC to require (or is replaced with another rule or regulation,
or any other law, rule or regulation is adopted, which would



61









 






require) the filing with the SEC (or any other governmental agency) of separate financial statements of
any Subsidiary of the Company due to the fact that such Subsidiary’s Capital Stock
and other securities secure the Notes, the performance of the Notes Obligations or
any Notes Guarantee, then the Capital Stock and other securities of such Subsidiary
shall automatically be deemed not to be part of the Collateral for the benefit of
the Notes Secured Creditors, but only to the extent necessary to not be subject to
such requirement (and, in such event, the Security Documents may be amended or
modified, without the consent of any Holder of the Notes, to the extent necessary
to release the first-priority security interests in the shares of Capital Stock and
other securities that are so deemed to no longer constitute part of the
Collateral); and




     (iii) in the event that Rule 3-16 is amended, modified or interpreted by the
SEC to permit (or is replaced with another rule or regulation, or any other law,
rule or regulation is adopted, which would permit) such Subsidiary’s Capital Stock
and other securities to secure the Notes in excess of the amount then pledged
without the filing with the SEC (or any other governmental agency) of separate
financial statements of such Subsidiary, then the Capital Stock and other
securities of such Subsidiary shall automatically be deemed to be a part of the
Collateral for the benefit of the Notes Secured Creditors but only to the extent
necessary to not be subject to any such financial statement requirement (and, in
such event, the Security Documents may be amended or modified, without the consent
of any Holder of the Notes, to the extent necessary to subject to the Liens under
the Security Documents such additional Capital Stock and other securities).



          (c) The Company shall not, and shall not permit any Restricted Subsidiary to, take, or
knowingly omit to take, any action that would have the result of materially impairing the security
interest with respect to the Collateral (it being understood that Permitted Securitizations,
Restricted Payments permitted under Section 4.04, Asset Sales permitted under Section 4.06, other
dispositions of assets in the ordinary course of business and the incurrence of Permitted
Collateral Liens will be deemed not to materially impair the security with respect to the Collateral) for the benefit of the Notes
Secured Creditors, and the Company shall not, and shall not permit any Restricted Subsidiary to,
grant to any person other than the Collateral Agent, for the benefit of the Secured Creditors, any
interest whatsoever in any of the Collateral, except that the Company and any Restricted Subsidiary
may incur Permitted Collateral Liens, and the Collateral and the Liens thereon may be discharged
and released in accordance with this Indenture, the Security Documents and the Intercreditor
Agreement.




          SECTION 4.13. Limitation on Investment Company Status. The Company and its
Subsidiaries shall not take any action, or otherwise permit to exist any circumstances, that would
require the Company to register as an “investment company” under the Investment Company Act of
1940, as amended.





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          SECTION 4.14. Maintenance of Financial Ratios. The Company shall:





     (i) maintain, as of the end of each fiscal quarter, a Funded Debt Ratio that
does not exceed 3.25 to 1.0;




     (ii) maintain, at all times, a Collateral Coverage Ratio that equals or
exceeds 1.25 to 1.0; and




     (iii) (x) provide to the Trustee, within (A) 45 days after and as of the end
of each fiscal quarter, excluding the last quarter, of each fiscal year and (B)
within 90 days after and as of the end of each fiscal year, an Officers’
Certificate substantially similar in detail to that which is required to be
provided to the lenders under the Credit Agreement attesting to compliance with the
maintenance requirements described in clauses (i) and (ii) above at the end of or
during such fiscal quarter or fiscal year, as applicable, and (y) either make such
certificate publicly available on the Company’s website or publicly file such
certificate with the SEC via the EDGAR filing system or any successor electronic
filing system.



          SECTION 4.15. Further Instruments and Acts. Upon request of the Trustee, the Company
shall execute and deliver such further instruments and do such further acts as may be reasonably
necessary or proper to carry out more effectively the purpose of this Indenture.




ARTICLE V




Successor Company



          SECTION 5.01. When Company May Merge or Transfer Assets. (a) The Company shall not
consolidate or merge with or into (whether or not the Company is the surviving corporation), or
sell, assign, transfer, lease, convey or otherwise dispose of all or substantially all of its
properties or assets in one or more related transactions to, another Person unless:





     (i) the Company is the surviving corporation or the Person formed by or
surviving any such consolidation or merger (if other than the Company) or to which
such sale, assignment, transfer, lease, conveyance or other disposition shall have
been made is organized or existing under the laws of the United States, any state
thereof or the District of Columbia;




     (ii) the Person formed by or surviving any such consolidation or merger (if
other than the Company) or the Person to which such sale, assignment, transfer,
lease, conveyance or other disposition shall have been made assumes all the
obligations of the Company under the Notes and this Indenture pursuant to a
supplemental indenture in a form reasonably satisfactory to the Trustee;



63









 






     (iii) except in the case of a merger or consolidation of the Company with or
into a Wholly-Owned Restricted Subsidiary of the Company, immediately before and
after such transaction no Default has occurred and is continuing; and




     (iv) except in the case of a merger or consolidation of the Company with or
into a Wholly-Owned Restricted Subsidiary of the Company, the Company or the Person
formed by or surviving any such consolidation or merger (if other than the
Company), or to which such sale, assignment, transfer, lease, conveyance or other
disposition shall have been made shall, at the time of such transaction and after
giving pro forma effect thereto as if such transaction had occurred at the end of
the applicable fiscal quarter, either (A) be permitted to incur at least $1.00 of
additional Ratio Indebtedness pursuant to Section 4.03(a) or (B) have a Fixed
Charge Coverage Ratio no less than that of the Company at such time without giving
such pro forma effect thereto.


Upon the consummation of any transaction effected in accordance with this Section 5.01(a), if the
Company is not the continuing Person, the resulting, surviving or transferee Person shall succeed
to, and be substituted for, and may exercise every right and power of, the Company under this
Indenture and the Notes with the same effect as if such successor Person had been named as the
Company in this Indenture. Upon such substitution the Company, except in the case of a lease,
shall be released from its obligations under this Indenture, the Notes and the Security Documents.




          (b) Each Guarantor (other than any Guarantor whose Notes Guarantee is to be released in
accordance with the terms of the Notes Guarantee and this Indenture in connection with any
transaction complying with Section 4.06) shall not, and the Company shall not cause or permit any
such Guarantor to, consolidate with or merge with or into any Person other than the Company or
another Guarantor unless:





     (i) the Person formed by or surviving any such consolidation or merger or to
which such sale, assignment, transfer, lease, conveyance or other disposition shall have been made is organized and existing under the
laws of the United States, any State thereof or the District of Columbia;




     (ii) the Person formed by or surviving any such consolidation or merger or to
which such sale, assignment, transfer, lease, conveyance or other disposition shall
have been made assumes all of the obligations of the applicable Guarantor under its
Notes Guarantee;




     (iii) immediately before and after giving effect to such transaction, no
Default has occurred and is continuing; and




     (iv) except in the case of a merger or consolidation of a Guarantor with or
into a Wholly-Owned Restricted Subsidiary of the Company, immediately after giving
effect to such transaction and the use of any net



64









 






proceeds therefrom on a pro forma basis, the Company could satisfy Section 5.01(a)(iv).



          (c) The following additional conditions shall apply to each transaction set forth in Sections
5.01(a) and 5.01(b):





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




     (ii) the Collateral owned by or transferred to the Company, the Guarantor or
the relevant surviving entity, as applicable, shall




     (1) continue to constitute Collateral under the Security Documents
and this Indenture;




     (2) be subject to the Lien in favor of the Collateral Agent for the
benefit of Secured Creditors (to the extent that such Lien is not
prohibited by any related Acquired Indebtedness that is secured by such
assets); and




     (3) not be subject to any Lien other than Liens permitted by the
Security Documents and this Indenture;




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




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



65









 




provided, however, that clauses (iii) and (iv) of each of Sections 5.01(a) and 5.01(b) shall not be
applicable to the Company or a Restricted Subsidiary merging with an Affiliate of the Company
solely for the purpose of reincorporating the Company or such Restricted Subsidiary in another
permitted jurisdiction.




ARTICLE VI




Defaults and Remedies



          SECTION 6.01. Events of Default. (a) Each of the following constitutes an “Event
of Default”:





     (i) default in the payment when due of interest on the Notes, which default
continues for 30 consecutive days;




     (ii) default in payment of the principal of or premium, if any, on the Notes
when due, at Stated Maturity, upon optional redemption, upon required repurchase or
otherwise;




     (iii) default by the Company in the performance of its obligations under
Section 5.01(a);




     (iv) default by the Company in the performance of its obligations under
Section 4.14 that continues for 60 consecutive days after the Company first becomes
aware of such default;




     (v) the Company defaults in the performance of or breaches any other covenant
or agreement of the Company in this Indenture, the Security Documents or any other
collateral agreement or under the Notes (other than a default specified in clause
(i), (ii), (iii) or (iv) above), and such default or breach continues for a period
of 60 consecutive days after written notice by the Trustee to the Company or by the
holders of 25.0% or more in aggregate principal amount of the Notes to the Company (with a copy
to the Trustee);




     (vi) (A) failure by the Company or any Restricted Subsidiary (other than a
Special Purpose Subsidiary with respect to Nonrecourse Indebtedness) to make a
principal payment on any Indebtedness at or prior to the expiration of the
applicable grace period after the final (but not any interim) fixed maturity of
such Indebtedness, where the amount of such unpaid principal exceeds $25,000,000 or
(B) acceleration of Indebtedness of the Company or any Restricted Subsidiary (other
than Nonrecourse Indebtedness of a Special Purpose Subsidiary) because of a default
thereunder, where the total amount of such Indebtedness accelerated exceeds
$25,000,000;




66












 






     (vii) one or more judgments, orders, decrees or arbitration awards are
entered against the Company or any Restricted Subsidiaries involving in the
aggregate a liability (to the extent not paid when due or covered by insurance) of
$25,000,000 or more and all such judgments, orders, decrees or arbitration awards
have not been paid and satisfied, vacated, discharged, stayed or fully bonded
pending appeal within 90 days from the entry thereof;




     (viii) except as permitted by this Indenture, any Notes Guarantee of a
Significant Subsidiary of the Company, or the Notes Guarantees of a group of
Guarantors that, taken together, would constitute a Significant Subsidiary of the
Company, is held in a judicial proceeding to be unenforceable or invalid or ceases
for any reason to be in full force and effect or any Guarantor, or any Person
acting on behalf of any Guarantor, denies or disaffirms its obligations under its
Notes Guarantee;




     (ix) the Company or any of its Significant Subsidiaries or any group of
Subsidiaries of the Company that, taken together, would constitute a Significant
Subsidiary of the Company pursuant to or within the meaning of any Bankruptcy Law:




     (A) commences a voluntary case;




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




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




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




or takes any comparable action under any foreign laws relating to insolvency;




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




     (A) is for relief against the Company or any of its Significant
Subsidiaries or any group of Subsidiaries of the
Company that, taken together, would constitute a Significant
Subsidiary of the Company in an involuntary case;




     (B) appoints a Custodian of the Company or any of its Significant
Subsidiaries or any group of Subsidiaries of the Company that, taken
together, would constitute a Significant Subsidiary of the Company or for
any substantial part of the



67









 






property and assets of the Company, any of its
Significant Subsidiaries or any group of Subsidiaries of the Company that,
taken together, would constitute a Significant Subsidiary of the Company;
or




     (C) orders the winding up or liquidation of the Company or any of its
Significant Subsidiaries or any group of Subsidiaries of the Company that,
taken together, would constitute a Significant Subsidiary of the Company;




and the order or decree remains unstayed and in effect for 60 consecutive days or
any similar relief is granted under any foreign laws and the order or decree
remains unstayed and in effect for 60 consecutive days; and




     (xi) (1) default by the Company in the performance of the Security Documents
which adversely affects the enforceability, validity, perfection or priority of the
Collateral Agent’s Lien on the Collateral in any material respect, (2) repudiation
or disaffirmation by the Company or any Restricted Subsidiary of its obligations
under the Security Documents or (3) the determination in a judicial proceeding that
the Security Documents are unenforceable or invalid against the Company or any
Restricted Subsidiary that is (or any group of Restricted Subsidiaries that would
constitute) a Significant Subsidiary of the Company for any reason except to the
extent any such unenforceability or invalidity caused by the failure of the
Collateral Agent to make filings, renewals and continuations (or other equivalent
filings) which the Company has indicated in the perfection certificate delivered to
the Collateral Agent are required to be made or the failure of the Collateral Agent
to maintain possession of certificates actually delivered to it representing
securities pledged under the Security Documents.



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




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




          SECTION 6.02. Acceleration. If any Event of Default occurs and is continuing, the
Trustee or the Holders of at least 25.0% in principal amount of the then outstanding Notes may
declare all the Notes to be due and payable immediately. Notwithstanding the foregoing, in the
case of an Event of Default arising under clauses (ix) and (x) of Section 6.01(a), all outstanding
Notes shall become due and payable without further action or notice. Holders of the Notes may not
enforce this Indenture or




68









 







the Notes except as provided in this Indenture. Subject to certain
limitations, Holders of a majority in principal amount of the then outstanding Notes may direct the
Trustee in its exercise of any trust or power. The Trustee may withhold from Holders of the Notes
notice of any continuing Default (except a Default relating to the payment of principal, premium,
if any, or interest) if it determines that withholding notice is in their interest.




          In the event of a declaration of acceleration because an Event of Default set forth in clause
(vi) of Section 6.01(a) has occurred and is continuing, such declaration of acceleration shall be
automatically rescinded and annulled if the event of default triggering such Event of Default
pursuant to such clause (vi) shall be remedied or cured by the Company or the relevant Restricted
Subsidiary or waived by the holders of the relevant Indebtedness within 30 days after the
declaration of acceleration with respect thereto.




          SECTION 6.03. Waiver of Past Defaults. The Holders of a majority in aggregate
principal amount of the Notes then outstanding by notice to the Trustee may on behalf of the
Holders of all of the Notes waive any existing Default and its consequences under this Indenture
except (i) a continuing Default in the payment of interest or premium, if any, on or the principal
of, the Notes or (ii) a Default in respect of a provision that under Section 9.02(b) cannot be
amended or waived without consent of the Holders of at least 662/3% in aggregate principal amount of
Notes then outstanding.




          SECTION 6.04. Other Remedies. If an Event of Default occurs and is continuing, the
Trustee may pursue any available remedy to collect the payment of principal of or premium, if any,
or interest on the Notes or to enforce the performance of any provision of the Notes or this
Indenture.




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




          SECTION 6.05. Compliance Certificate. (a) The Company shall deliver to the Trustee
within 120 days after the end of each fiscal year of the Company an Officers’ Certificate (for
which one of the certifying Officers shall be the Company’s principal executive officer, principal
financial officer or principal accounting officer) stating that in the course of the performance by
the signers of their duties as Officers of the Company they would normally have knowledge of any
Default and whether or not the
signers know of any Default that occurred during such period. If they do, the certificate
shall describe the Default, its status and what action the Company is taking or proposes to take
with respect thereto.




          (b) The Company shall deliver to the Trustee, within 30 days after the occurrence thereof,
written notice in the form of an Officers’ Certificate of any Event of Default under clause (iii),
(vi), (vii), (viii) or (xi) of Section 6.01(a) and any event which




69









 







with the giving of notice or the
lapse of time would become an Event of Default under clause (v) of Section 6.01(a), its status and
what action the Company is taking or proposes to take with respect thereto.




          (c) The Company shall deliver to the Trustee, within 30 days after an Officer becomes aware
of the occurrence thereof, written notice in the form of an Officers’ Certificate of any event
which with the lapse of time would become an Event of Default under clause (iv) of Section 6.01(a),
its status and what action the Company is taking or proposes to take with respect thereto.




          SECTION 6.06. Control by Majority. The Holders of a majority in principal amount of
the Notes may direct the time, method and place of conducting any proceeding for any remedy
available to the Trustee or of exercising any trust or power conferred on the Trustee. However,
the Trustee may refuse to follow any direction that conflicts with law or this Indenture or,
subject to Section 7.01, that the Trustee determines is unduly prejudicial to the rights of other
Holders or would involve the Trustee in personal liability; provided, however, that
the Trustee may take any other action deemed proper by the Trustee that is not inconsistent with
such direction. Prior to taking any action hereunder, the Trustee shall be entitled to
indemnification satisfactory to it in its sole discretion against all losses and expenses caused by
taking or not taking such action.




          SECTION 6.07. Limitation on Suits. Except to enforce the right to receive payment of
principal, premium, if any, or interest when due, no Holder may pursue any remedy with respect to
this Indenture or the Notes unless:





     (a) the Holder gives to the Trustee written notice stating that an Event of Default
is continuing;




     (b) the Holders of at least 25.0% in principal amount of the Notes make a written
request to the Trustee to pursue the remedy;




     (c) such Holder or Holders offer to the Trustee security or indemnity satisfactory to
the Trustee against any loss, liability or expense;




     (d) the Trustee does not comply with the request within 60 days after receipt of the
request and the offer of security or indemnity; and




     (e) the Holders of a majority in principal amount of the Notes do not give the
Trustee a direction inconsistent with the request during such 60-day period.



          A Holder may not use this Indenture to prejudice the rights of another Holder or to obtain a
preference or priority over another Holder. In the event that Definitive Notes are not issued to
any owner of a beneficial interest in a Global Note at a time at which such beneficial owner has a
right to receive such Definitive Notes pursuant to this Indenture, the Company expressly agrees and
acknowledges that (1) such beneficial owner shall have standing to pursue a remedy pursuant to this
Indenture to




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compel the issuance of such Definitive Notes to such beneficial owner and to compel
the registration of such Definitive Notes in the name of such beneficial owner in the register
maintained by the Registrar with respect to the Notes and (2) such beneficial owner shall be
entitled, pending such issuance and registration, to sue for payment (which payment shall only be
made following such issuance and registration) of the monetary obligation to be represented by such
Definitive Notes. The Company agrees that specific performance is an appropriate form for the
remedy referenced in clause (1) of the immediately-preceding sentence and shall not object to such
form of such remedy.




          SECTION 6.08. Rights of Holders to Receive Payment. Notwithstanding any other
provision of this Indenture, the right of any Holder to receive payment of principal of or premium,
if any, or interest on the Notes held by such Holder, on or after the respective due dates
expressed in the Notes, or to bring suit for the enforcement of any such payment on or after such
respective dates, shall not be impaired or affected without the consent of such Holder.




          SECTION 6.09. Collection Suit by Trustee. If an Event of Default specified in
clauses (i) or (ii) of Section 6.01(a) occurs and is continuing, the Trustee may recover judgment
in its own name and as trustee of an express trust against the Company for the whole amount then
due and owing (together with interest on any unpaid interest to the extent lawful) and the amounts
provided for in Section 7.07.




          SECTION 6.10. Trustee May File Proofs of Claim. The Trustee may file such proofs of
claim and other papers or documents as may be necessary or advisable in order to have the claims of
the Trustee and the Holders allowed in any judicial proceedings relative to the Company or any
Guarantor, its creditors or its property and, unless prohibited by law or applicable regulations,
may vote on behalf of the Holders in any election of a trustee in bankruptcy or other Person
performing similar functions, and any Custodian in any such judicial proceeding is hereby
authorized by each Holder to make payments to the Trustee and, in the event that the Trustee shall
consent to the making of such payments directly to the Holders, to pay to the Trustee any amount
due it for the reasonable compensation, expenses, disbursements and advances of the Trustee, its
agents and its counsel, and any other amounts due to the Trustee under Section 7.07.




          SECTION 6.11. Priorities. If the Trustee collects any money or property pursuant to
this Article VI, it shall pay out the money or property in the following order:




          FIRST: to the Trustee for amounts due under Section 7.07;





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




     THIRD: to the Company or, to the extent the Trustee collects any amount for any
Guarantor, to such Guarantor.



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          The Trustee may fix a record date and payment date for any payment to the Holders pursuant to
this Section 6.11. At least 15 days before such record date, the Trustee shall mail to each Holder
and the Company a notice that states the record date, the payment date and amount to be paid.




          SECTION 6.12. Undertaking for Costs. In any suit for the enforcement of any right or
remedy under this Indenture or in any suit against the Trustee for any action taken or omitted by
it as Trustee, a court in its discretion may require the filing by any party litigant in the suit
of an undertaking to pay the costs of the suit, and the court in its discretion may assess
reasonable costs, including reasonable attorneys’ fees, against any party litigant in the suit,
having due regard to the merits and good faith of the claims or defenses made by the party
litigant. This Section does not apply to a suit by the Trustee, a suit by a Holder pursuant to
Section 6.08 or a suit by Holders of more than 10.0% in aggregate principal amount of the Notes.




          SECTION 6.13. Waiver of Stay or Extension Laws. The Company (to the extent it may
lawfully do so) shall not at any time insist upon, or plead, or in any manner whatsoever claim or
take the benefit or advantage of, any stay or extension law wherever enacted, now or at any time
hereafter in force, which may affect the covenants or the performance of this Indenture; and the
Company (to the extent that it may lawfully do so) hereby expressly waives all benefit or advantage
of any such law, and shall not hinder, delay or impede the execution of any power herein granted to
the Trustee, but shall suffer and permit the execution of every such power as though no such law
had been enacted.




ARTICLE VII




Trustee



          SECTION 7.01. Duties of Trustee. (a) If an Event of Default has occurred and is
continuing, the Trustee shall exercise the rights and powers vested in it by this Indenture and use
the same degree of care and skill in their exercise as a prudent man would exercise or use under
the circumstances in the conduct his own affairs.




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





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




     (ii) in the absence of bad faith on its part, the Trustee may conclusively
rely, as to the truth of the statements and the correctness of the opinions
expressed therein, upon certificates or opinions furnished to the Trustee and
conforming to the requirements of this Indenture. However, the Trustee shall
examine the certificates and opinions to



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determine whether or not they conform to
the requirements of this Indenture.



          (c) The Trustee may not be relieved from liability for its own negligent action, its own
negligent failure to act or its own willful misconduct, except that:





     (i) this paragraph does not limit the effect of paragraph (b) of this Section;




     (ii) the Trustee shall not be liable for any error of judgment made in good
faith by a Trust Officer unless it is proved that the Trustee was negligent in
ascertaining the pertinent facts; and




     (iii) the Trustee shall not be liable with respect to any action it takes or
omits to take in good faith in accordance with a direction received by it pursuant
to Section 6.06.



          (d) Every provision of this Indenture that in any way relates to the Trustee is subject to
paragraphs (a), (b) and (c) of this Section.




          (e) The Trustee shall not be liable for interest on any money received by it except as the
Trustee may agree in writing with the Company.




          (f) Money held in trust by the Trustee need not be segregated from other funds except to the
extent required by law.




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




          (h) Every provision of this Indenture relating to the conduct or affecting the liability of
or affording protection to the Trustee shall be subject to the provisions of this Section and to
the provisions of the TIA.




          SECTION 7.02. Rights of Trustee. (a) The Trustee may rely on any document believed
by it to be genuine and to have been signed or presented by the proper person. The Trustee need
not investigate any fact or matter stated in the document.




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




          (c) The Trustee may act through agents and shall not be responsible for the misconduct or
negligence of any agent appointed with due care.




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          (d) The Trustee shall not be liable for any action it takes or omits to take in good faith
which it believes to be authorized or within its rights or powers;provided,
however, that the Trustee’s conduct does not constitute willful misconduct or negligence.




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




          (f) The Trustee shall be under no obligation to exercise any of its rights or powers under
this Indenture at the request of any Holder of Notes, unless such Holder shall have offered to the
Trustee security and indemnity satisfactory to it against any loss, liability or expense.




          (g) The Trustee shall not be deemed to have knowledge of any Default or Event of Default
except (i) during any period it is serving as Registrar and Paying Agent for the Notes, any Event
of Default occurring pursuant to Sections 6.1(a)(i) and 6.1(a)(ii), or (ii) any Default or Event of
Default of which a Trust Officer shall have (x) received written notification at the office of the
Trustee specified in Section 12.02 and such notice references the Notes and this Indenture or (y)
obtained “actual knowledge.” “Actual knowledge” shall mean the actual fact or statement of knowing
by a Trust Officer without independent investigation with respect thereto.




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




          (i) The Trustee may request that the Company deliver a certificate setting forth the names of
individuals and/or titles of officers authorized at such time to take specified actions pursuant to
this Indenture.




          SECTION 7.03. Individual Rights of Trustee. (a) The Trustee in its individual or
any other capacity may become the owner or pledgee of Notes and may become a creditor of, or
otherwise deal with, the Company or its Affiliates with the same rights it would have if it were
not Trustee. The Paying Agent or Registrar may do the same with like rights. However, the Trustee
must comply with Sections 7.10 and 7.11.




          (b) Notwithstanding Section 7.03(a), if the Trustee acquires any conflicting interest as
described in the TIA, it must eliminate such conflict within 90
days; if this Indenture has been qualified under the TIA, apply to the SEC for permission to
continue as trustee under this Indenture; or resign.




          SECTION 7.04. Trustee’s Disclaimer. The Trustee shall not be responsible for and
makes no representation as to the validity or adequacy of this Indenture or the Notes, it shall not
be accountable for the Company’s use of the proceeds





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from the Notes, and it shall not be
responsible for any statement of the Company in this Indenture or in any document issued in
connection with the sale of the Notes or in the Notes other than the Trustee’s certificate of
authentication.




          SECTION 7.05. Notice of Defaults. If a Default occurs, is continuing and is known to
the Trustee, the Trustee shall mail to each Holder notice of the Default within 90 days after it
occurs. Except in the case of a Default in the payment of principal of or premium, if any, or
interest on any Note, the Trustee may withhold the notice if and so long as a committee of its
Trust Officers in good faith determines that withholding the notice is not opposed to the interests
of the Holders.




          SECTION 7.06. Reports by Trustee to Holders. As promptly as practicable after each
February 1 beginning with the February 1 following the date of this Indenture, and in any event
prior to April 1 in each year, the Trustee shall mail to each Holder a brief report dated as of
February 1 that complies with TIA § 313(a). The Trustee also shall comply with TIA § 313(b).




          A copy of each report at the time of its mailing to Holders shall be filed with the SEC and
each stock exchange (if any) on which the Notes are listed. The Company agrees to notify promptly
the Trustee whenever the Notes become listed on any stock exchange and of any delisting thereof.




          SECTION 7.07. Compensation and Indemnity. The Company shall pay to the Trustee from
time to time reasonable compensation for its services. The Trustee’s compensation shall not be
limited by any law on compensation of a trustee of an express trust. The Company shall reimburse
the Trustee upon request for all reasonable out-of-pocket expenses incurred or made by it,
including costs of collection, in addition to the compensation for its services. Such expenses
shall include the reasonable compensation and expenses, disbursements and advances of the Trustee’s
agents, counsel, accountants and experts. The Company shall indemnify the Trustee against any and
all loss, liability or expense (including reasonable attorneys’ fees) incurred by it in connection
with the administration of this trust and the performance of its duties hereunder. The Trustee
shall notify the Company promptly of any claim for which it may seek indemnity. Failure by the
Trustee to so notify the Company shall not relieve the Company of its obligations hereunder. The
Company shall defend the claim and the Trustee may have separate counsel and the Company shall pay
the fees and expenses of such counsel. The Company need not reimburse any expense or indemnify
against any loss, liability or expense incurred by the Trustee through the Trustee’s own willful
misconduct, negligence or bad faith.




          To secure the Company’s payment obligations in this Section, the Trustee shall have a lien
prior to the Notes on all money or property held or collected by the Trustee other than money or
property held in trust to pay principal of and premium, if any, or interest on particular Notes.




          The Company’s payment obligations pursuant to this Section shall survive the discharge of this
Indenture. When the Trustee incurs expenses after the occurrence of




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a Default specified in
Section 6.01(a)(ix) or (x) with respect to the Company, the expenses are intended to constitute
expenses of administration under the Bankruptcy Law.




          SECTION 7.08. Replacement of Trustee. The Trustee may resign at any time by so
notifying the Company. The Holders of a majority in principal amount of the Notes may remove the
Trustee by so notifying the Trustee and may appoint a successor Trustee. The Company shall remove
the Trustee if:




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




          (b) the Trustee is adjudged bankrupt or insolvent;




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




          (d) the Trustee otherwise becomes incapable of acting.




          If the Trustee resigns, is removed by the Company or by the Holders of a majority in principal
amount of the Notes and such Holders do not reasonably promptly appoint a successor Trustee, or if
a vacancy exists in the office of Trustee for any reason (the Trustee in such event being referred
to herein as the retiring Trustee), the Company shall promptly appoint a successor Trustee.




          A successor Trustee shall deliver a written acceptance of its appointment to the retiring
Trustee and to the Company. Thereupon the resignation or removal of the retiring Trustee shall
become effective, and the successor Trustee shall have all the rights, powers and duties of the
Trustee under this Indenture. The successor Trustee shall mail a notice of its succession to
Holders. The retiring Trustee shall promptly transfer all property held by it as Trustee to the
successor Trustee, subject to the lien provided for in Section 7.07.




          If a successor Trustee does not take office within 60 days after the retiring Trustee resigns
or is removed, the retiring Trustee or the Holders of 10.0% in principal amount of the Notes may
petition any court of competent jurisdiction for the appointment of a successor Trustee.




          If the Trustee fails to comply with Section 7.10, any Holder may petition any court of
competent jurisdiction for the removal of the Trustee and the appointment of a successor Trustee.
Notwithstanding the replacement of the Trustee pursuant to this Section, the Company’s
obligations under Section 7.07 shall continue for the benefit of the retiring Trustee.




          SECTION 7.09. Successor Trustee by Merger. If the Trustee consolidates with, merges
or converts into, or transfers all or substantially all its corporate trust




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business or assets to,
another corporation or banking association, the resulting, surviving or transferee corporation
without any further act shall be the successor Trustee.




          In case at the time such successor or successors by merger, conversion or consolidation to the
Trustee shall succeed to the trusts created by this Indenture any of the Notes shall have been
authenticated but not delivered, any such successor to the Trustee may adopt the certificate of
authentication of any predecessor trustee, and deliver such Notes so authenticated; and in case at
that time any of the Notes shall not have been authenticated, any successor to the Trustee may
authenticate such Notes either in the name of any predecessor hereunder or in the name of the
successor to the Trustee; and in all such cases such certificates shall have the full force which
it is anywhere in the Notes or in this Indenture provided that the certificate of the Trustee shall
have.




          SECTION 7.10. Eligibility; Disqualification. The Trustee shall at all times satisfy
the requirements of TIA § 310(a). The Trustee shall have a combined capital and surplus of at
least $50,000,000 as set forth in its most recent published annual report of condition. The
Trustee shall comply with TIA § 310(b); provided, however, that there shall be
excluded from the operation of TIA § 310(b)(1) any indenture or indentures under which other
securities or certificates of interest or participation in other securities of the Company are
outstanding if the requirements for such exclusion set forth in TIA § 310(b)(1) are met.




          SECTION 7.11. Preferential Collection of Claims Against Company. The Trustee shall
comply with TIA § 311(a), excluding any creditor relationship listed in TIA § 311(b). A Trustee
who has resigned or been removed shall be subject to TIA § 311(a) to the extent indicated.




ARTICLE VIII




Discharge of Indenture; Defeasance



          SECTION 8.01. Satisfaction and Discharge. This Indenture shall be discharged and
shall cease to be of further effect (except as to surviving rights and immunities of the Trustee
and rights of registration or transfer or exchange of the Notes, as expressly provided for in this
Indenture) as to all outstanding Notes and Notes Guarantees when:





(i) either:




     (1) all the Notes theretofore authenticated and delivered (except
lost, stolen or destroyed Notes that have been replaced or
paid and Notes for whose payment money has theretofore been deposited
in trust or segregated and held in trust by the Company and thereafter
repaid to the Company or discharged from such trust) have been delivered
to the Trustee for cancellation; or



77









 






     (2) all Notes not theretofore delivered to the Trustee for
cancellation (a) have become due and payable, (b) shall become due and
payable at their stated maturity within one year or (c) if redeemable at
the option of the Company, are to be called for redemption within one year
under arrangements satisfactory to the Trustee for the giving of notice of
redemption by the Trustee in the name, and at the expense, of the Company,
and the Company has irrevocably deposited or caused to be deposited with
the Trustee funds in an amount sufficient or Government Securities, the
principal of and interest on which shall be sufficient, or a combination
thereof sufficient, to pay and discharge the entire Indebtedness on the
Notes not theretofore delivered to the Trustee for cancellation, for
principal of, premium, if any, and interest on the Notes to the date of
deposit together with irrevocable instructions from the Company directing
the Trustee to apply such funds to the payment thereof at maturity or
redemption, as the case may be;




     (ii) the Company has paid all other sums payable under this Indenture by the
Company; and




     (iii) the Company has delivered to the Trustee an Officers’ Certificate and an
Opinion of Counsel stating that all conditions precedent under this Indenture
relating to the satisfaction and discharge of this Indenture have been complied
with.



          SECTION 8.02. Legal Defeasance and Covenant Defeasance. (a) Subject to Sections
8.02(b) and 8.03, the Company at any time may terminate (1) all its obligations under the Notes and
this Indenture (“Legal Defeasance”) or (2) its obligations under Sections 4.02, 4.03, 4.04,
4.05, 4.06, 4.07, 4.08, 4.09, 4.10, 4.11, 4.12, 4.13, 4.14 and 6.05 and the operation of Sections
6.01(a)(iv), 6.01(a)(v), 6.01(a)(vi), 6.01(a)(vii), 6.01(a)(viii), 6.01(a)(ix), 6.01(a)(x) and
6.01(a)(xi) (but, in the case of Sections 6.01(a)(ix) and 6.01(a)(x), with respect only to
Significant Subsidiaries or any group of Subsidiaries of the Company that, taken together, would
constitute a Significant Subsidiary) and the limitations contained in Section 5.01(a)(iv)
(“Covenant Defeasance”). The Company may exercise a Legal Defeasance notwithstanding its
prior exercise of Covenant Defeasance.




          If the Company exercises a Legal Defeasance, payment of the Securities may not be accelerated
because of an Event of Default. If the Company exercises a Covenant Defeasance, payment of the
Securities may not be accelerated because of an
Event of Default specified in Section 6.01(a)(iv), 6.01(a)(v), 6.01(a)(vi), 6.01(a)(vii),
6.01(a)(viii), 6.01(a)(ix), 6.01(a)(x) or 6.01(a)(xi) (but, in the case of Sections 6.01(a)(ix) and
6.01(a)(x), with respect only to Significant Subsidiaries or any group of Subsidiaries of the
Company that, taken together, would constitute a Significant Subsidiary) or because of the failure
of the Company to comply with Section 5.01(a)(iv). If the




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Company exercises a Legal Defeasance or
a Covenant Defeasance, each Guarantor, if any, shall be simultaneously released from all its
obligations with respect to its Notes Guarantee and the Security Documents.




          Upon satisfaction of the conditions set forth herein and upon request of the Company, the
Trustee shall acknowledge in writing the discharge of those obligations that the Company
terminates.




          (b) Notwithstanding Sections 8.01 and 8.02(a), the Company’s obligations in Sections 2.03,
2.04, 2.05, 2.06, 2.07, 2.08, 2.09, 7.07 and 7.08 and in this Article VIII shall survive until the
Notes have been paid in full. Thereafter, the Company’s obligations in Sections 7.07, 8.06 and
8.07 shall survive.




          SECTION 8.03. Conditions to Defeasance. In order to exercise either Legal Defeasance
or Covenant Defeasance:





     (i) the Company must irrevocably deposit with the Trustee, in trust, for the
benefit of the Holders of the Notes, cash in U.S. dollars, non-callable Government
Securities, or a combination thereof, in such amounts as will be sufficient, in the
opinion of a nationally recognized firm of independent public accountants, to pay
the principal of, premium, if any, and interest due on the outstanding Notes on the
stated maturity date or on the applicable Redemption Date, as the case may be, and
the Company must specify whether the Notes are being defeased to maturity or to a
particular Redemption Date;




     (ii) in the case of Legal Defeasance, the Company shall have delivered to the
Trustee an opinion of counsel in the United States reasonably acceptable to the
Trustee confirming that, subject to customary assumptions and exclusions, (1) the
Company has received from, or there has been published by, the Internal Revenue
Service a ruling or (2) since the Issue Date, there has been a change in the
applicable U.S. federal income tax law, in either case to the effect that, and
based thereon such opinion of counsel shall confirm that, the Holders will not
recognize income, gain or loss for U.S. federal income tax purposes as a result of
such Legal Defeasance and will be subject to U.S. federal income tax on the same
amounts, in the same manner and at the same times as would have been the case if
such Legal Defeasance had not occurred;




     (iii) in the case of Covenant Defeasance, the Company shall have delivered to
the Trustee an opinion of counsel in the United States reasonably acceptable to the
Trustee confirming that, subject to customary
assumptions and exclusions, the Holders will not recognize income, gain or
loss for U.S. federal income tax purposes as a result of such Covenant Defeasance
and will be subject to U.S. federal income tax on the same amounts, in the same
manner and at the same times as would have been the case if such Covenant
Defeasance had not occurred;



79









 






     (iv) no Default shall have occurred and be continuing on the date of such
deposit (other than a Default resulting from the borrowing of funds to be applied
to such deposit);




     (v) such Legal Defeasance or Covenant Defeasance will not result in a breach
or violation of, or constitute a default under any material agreement or instrument
(other than this Indenture) to which the Company or any of its Subsidiaries is a
party or by which the Company or any of its Subsidiaries is bound;




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




     (vii) the Company shall have delivered to the Trustee an Officers’ Certificate
and an Opinion of Counsel (which opinion may be subject to customary assumptions
and exclusions), each stating that all conditions precedent provided for relating
to the Legal Defeasance or the Covenant Defeasance, as the case may be, have been
complied with.



          Before or after a deposit, the Company may make arrangements satisfactory to the Trustee for
the redemption of Notes at a future date in accordance with Article III.




          SECTION 8.04. Application of Trust Money. The Trustee shall hold in trust money
or Government Securities deposited with it pursuant to this Article VIII. It shall apply the
deposited money and the money from Government Securities through the Paying Agent and in accordance
with this Indenture to the payment of principal of and premium, if any, and interest on the Notes.




          SECTION 8.05. Repayment to Company. The Trustee and the Paying Agent shall promptly
turn over to the Company upon request any excess money or securities held by them at any time.




          Subject to any applicable abandoned property law, the Trustee and the Paying Agent shall pay
to the Company upon request any money held by them for the payment of principal, premium, if any,
or interest that remains unclaimed for two years,
and, thereafter, Holders entitled to the money must look to the Company for payment as general
creditors.




          SECTION 8.06. Indemnity for Government Securities. The Company shall pay and shall
indemnify the Trustee against any tax, fee or other charge imposed on or assessed on the Trustee in
its capacity as such against deposited Government Securities or the principal and interest received
on such Government Securities.





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          SECTION 8.07. Reinstatement. If the Trustee or Paying Agent is unable to apply any
money or Government Securities in accordance with this Article VIII by reason of any legal
proceeding or by reason of any order or judgment of any court or governmental authority enjoining,
restraining or otherwise prohibiting such application, the Company’s and each Guarantor’s
obligations under this Indenture, each Guarantee and the Notes shall be revived and reinstated as
though no deposit had occurred pursuant to this Article VIII until such time as the Trustee or
Paying Agent is permitted to apply all such money or Government Securities in accordance with this
Article VIII; provided, however, that, if the Company has made any payment of
premium, if any, or interest on or principal of any Notes because of the reinstatement of its
obligations, the Company shall be subrogated to the rights of the Holders of such Notes to receive
such payment from the money or Government Securities held by the Trustee or Paying Agent.




ARTICLE IX




Amendments



          SECTION 9.01. Without Consent of Holders. Notwithstanding Section 9.02, without the
consent of any Holder of Notes, the Company, the Guarantors and the Trustee may amend or supplement
this Indenture, the Notes, any Security Document or the Intercreditor Agreement:





     (i) to cure any ambiguity, omission, defect or inconsistency;




     (ii) to provide for uncertificated Notes in addition to or in place of
certificated Notes (provided that the uncertificated Notes are issued in registered
form for purposes of Section 163(f) of the Code);




     (iii) to provide for the assumption by a successor corporation of the
obligations of the Company or a Guarantor to Holders under this Indenture in the
case of a merger or consolidation;




     (iv) to make any change that would provide any additional rights or benefits
to the Holders of Notes or that does not adversely affect the legal rights under
this Indenture of any such Holder;




     (v) to comply with requirements of the SEC in order to effect or maintain the
qualification of this Indenture under the Trust Indenture Act;




     (vi) to evidence and provide for the acceptance of appointment under this
Indenture of a successor trustee;




     (vii) to add one or more Guarantors under this Indenture;




     (viii) to add any additional assets to the Collateral;



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     (ix) to release Collateral from the Lien of the Security Documents when
permitted or required by this Indenture and the Security Documents;




     (x) to conform the text of this Indenture, the Notes or any Guarantee to any
provision of the section of the Offering Circular entitled “Description of Notes”
to the extent that such provision in the section of the Offering Circular entitled
“Description of Notes” was intended to be a verbatim recitation of a provision of
this Indenture, the Notes or such Guarantee;




     (xi) as necessary to conform this Indenture to any exemptive orders under the
Trust Indenture Act received by the Company or any Guarantor; or




     (xii) to make any amendment to the provisions of this Indenture relating to
the transfer and legending of Notes; provided, however, that (1) compliance with
this Indenture as so amended would not result in Notes being transferred in
violation of the Securities Act or any other applicable securities law and (2) such
amendment does not materially and adversely affect the rights of Holders to
transfer Notes.



          SECTION 9.02. With Consent of Holders. (a) Except as otherwise provided in this
Article IX or Section 6.03, this Indenture, the Security Documents, the Intercreditor Agreement and
the Notes may be amended or supplemented (or a waiver may be granted with respect to any default or
noncompliance with any provision thereof) with the written consent of the Holders of a majority in
principal amount of the Notes then outstanding. Without the consent of each Holder affected
thereby, an amendment or waiver may not, among other things:





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




     (ii) reduce the principal of or change the fixed maturity of any Note;




     (iii) reduce the rate of or change the time for payment of interest on any
Note;




     (iv) waive a Default in the payment of, principal of or premium, if any, or
interest on the Notes (except a rescission of acceleration of the
Notes by the Holders of at least a majority in aggregate principal amount of
the Notes and a waiver of the payment default that resulted from such
acceleration);




     (v) (1) release any Guarantor from any of its obligations under its Notes
Guarantee other than in accordance with the terms of this Indenture or
(2) adversely change any Notes Guarantee or the priority of the Liens in



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the
Collateral or release all or substantially all of the Collateral from the Liens
created by the Security Documents, except in each case as specially provided for in
this Indenture and the Security Documents;




     (vi) make any Note payable in money other than that stated in the Notes;




     (vii) make any change in the provisions of this Indenture relating to waivers
of past Defaults or the rights of Holders of Notes to receive payments of principal
of or premium, if any, or interest on the Notes or to institute suit for the
enforcement of any such payment;




     (viii) make any change to the provisions applicable to the redemption of any
Note as set forth in Section 3.07;




     (ix) make any change in the ranking or priority of any Note that would
adversely affect the Holders; or




     (x) make any change in the amendment and waiver provisions.



          (b) Without the consent of the Holders of at least 662/3% in aggregate principal amount of
Notes then outstanding, an amendment or waiver may not (with respect to any Notes held by a
non-consenting Holder):





     (i)modify any Security Document or the provisions of this Indenture dealing
with the Security Documents or application of trust moneys, or otherwise release
any Collateral from the Lien of the Security Documents, in any manner adverse to
such Holder other than in accordance with this Indenture, the Security Documents
and the Intercreditor Agreement; or




     (ii) modify the Intercreditor Agreement in any manner adverse to such Holder
other than in accordance with this Indenture, the Security Documents and the
Intercreditor Agreement.



          (c) The consent of the Holders is not necessary under this Indenture to approve the
particular form of any proposed amendment. It is sufficient if such consent approves the substance
of the proposed amendment.




          SECTION 9.03. Notice of Amendments. After an amendment under this Indenture becomes
effective, the Company shall mail to the Holders a notice briefly describing such amendment.
However, the failure to give such notice to all Holders, or any defect therein, shall not impair or
affect the validity of the amendment.




          SECTION 9.04. Compliance with Trust Indenture Act. Every amendment to this Indenture
or the Notes shall comply with the TIA, other than, to the




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extent this Indenture has not been
qualified under the TIA, TIA § 314(d) and TIA § 314(b) or any successor provisions thereto, as then
in effect.




          SECTION 9.05. Revocation and Effect of Consents and Waivers. (a) A consent to an
amendment or a waiver by a Holder of a Note shall bind the Holder and every subsequent Holder of
that Note or portion of the Note that evidences the same debt as the consenting Holder’s Note, even
if notation of the consent or waiver is not made on the Note. However, any such Holder or
subsequent Holder may revoke the consent or waiver as to such Holder’s Note or portion of the Note
if the Trustee receives the notice of revocation before the date the amendment or waiver becomes
effective. After an amendment or waiver becomes effective, it shall bind every Holder. An
amendment or waiver becomes effective upon the execution of such amendment or waiver by the
Trustee.




          (b) The Company may, but shall not be obligated to, fix a record date for the purpose of
determining the Holders entitled to give their consent or take any other action set forth above or
required or permitted to be taken pursuant to this Indenture. If a record date is fixed, then
notwithstanding the immediately-preceding paragraph, those Persons who were Holders at such record
date (or their duly designated proxies), and only those Persons, shall be entitled to give such
consent or to revoke any consent previously given or to take any such action, whether or not such
Persons continue to be Holders after such record date. No such consent shall be valid or effective
for more than 120 days after such record date.




          SECTION 9.06. Notation on or Exchange of Notes. If an amendment changes the terms of
a Note, the Trustee may require the Holder of the Note to deliver it to the Trustee. The Trustee
may place an appropriate notation on the Note regarding the changed terms and return it to the
Holder. Alternatively, if the Company or the Trustee so determines, the Company in exchange for
the Note shall issue and the Trustee shall authenticate a new Note that reflects the changed terms.
Failure to make the appropriate notation or to issue a new Note shall not affect the validity of
such amendment.




          SECTION 9.07. Trustee To Sign Amendments. The Trustee shall sign any amendment
authorized pursuant to this Article IX if the amendment does not adversely affect the rights,
duties, liabilities or immunities of the Trustee. If it does, the Trustee may but need not sign
it. In signing such amendment the Trustee shall be entitled to receive indemnity reasonably
satisfactory to it and to receive, and (subject to Section 7.01) shall be fully protected in
relying upon, an Officers’ Certificate and an
Opinion of Counsel stating that such amendment is authorized or permitted by this Indenture.




          SECTION 9.08. Payment for Consent. Neither the Company nor any Affiliate of the
Company shall, directly or indirectly, pay or cause to be paid any consideration, whether by way of
interest, fee or otherwise, to any Holder for or as an inducement to any consent, waiver or
amendment of any of the terms or provisions of this Indenture or the Notes unless such
consideration is offered to all Holders and is paid to



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all Holders that so consent, waive or agree
to amend in the time frame set forth in solicitation documents relating to such consent, waiver or
agreement.




ARTICLE X




Guarantees



          SECTION 10.01. Guarantees. Each Guarantor hereby unconditionally and irrevocably
guarantees, jointly and severally, to each Holder and to the Trustee and its successors and assigns
(a) the full and punctual payment of principal of and premium, if any, and interest on the Notes
when due, whether at maturity, by acceleration, by redemption or otherwise, and all other monetary
obligations of the Company under this Indenture and the Notes and (b) the full and punctual
performance within applicable grace periods of all other obligations of the Company under this
Indenture and the Notes (all the foregoing being hereinafter collectively called the
"Guaranteed Obligations”). Each Guarantor further agrees that the Guaranteed Obligations
may be extended or renewed, in whole or in part, without notice or further assent from such
Guarantor and that such Guarantor will remain bound under this Article X notwithstanding any
extension or renewal of any Guaranteed Obligation.




          Each Guarantor waives presentation to, demand of, payment from and protest to the Company of
any of the Guaranteed Obligations and also waives notice of protest for nonpayment. Each Guarantor
waives notice of any default under the Notes or the Guaranteed Obligations. The obligations of
each Guarantor hereunder shall not be affected by (1) the failure of any Holder or the Trustee to
assert any claim or demand or to enforce any right or remedy against the Company or any other
Person (including any Guarantor) under this Indenture, the Notes or any other agreement or
otherwise; (2) any extension or renewal of this Indenture, the Notes or any other agreement;
(3) any rescission, waiver, amendment or modification of any of the terms or provisions of this
Indenture, the Notes or any other agreement; (4) the release of any security held by any Holder or
the Trustee for the Guaranteed Obligations or any of them; (5) the failure of any Holder or the
Trustee to exercise any right or remedy against any other guarantor of the Guaranteed Obligations;
or (6) except as set forth in Section 10.06, any change in the ownership of such Guarantor.




          Each Guarantor further agrees that its Guarantee herein constitutes a guarantee of payment,
performance and compliance when due (and not a guarantee of
collection) and waives any right to require that any resort be had by any Holder or the
Trustee to any security held for payment of the Guaranteed Obligations.




          Except as expressly set forth in Sections 8.01, 10.02 and 10.06, the obligations of each
Guarantor hereunder shall not be subject to any reduction, limitation, impairment or termination
for any reason, including any claim of waiver, release, surrender, alteration or compromise, and
shall not be subject to any defense of setoff, counterclaim, recoupment or termination whatsoever
or by reason of the invalidity, illegality or unenforceability of the Guaranteed Obligations or
otherwise. Without




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limiting the generality of the foregoing, the obligations of each Guarantor
herein shall not be discharged or impaired or otherwise affected by the failure of any Holder or
the Trustee to assert any claim or demand or to enforce any remedy under this Indenture, the Notes
or any other agreement, by any waiver or modification of any thereof, by any default, failure or
delay, willful or otherwise, in the performance of the obligations, or by any other act or thing or
omission or delay to do any other act or thing which may or might in any manner or to any extent
vary the risk of such Guarantor or would otherwise operate as a discharge of such Guarantor as a
matter of law or equity.




          Each Guarantor further agrees that its Guarantee herein shall continue to be effective or be
reinstated, as the case may be, if at any time payment, or any part thereof, of principal of or
premium, if any, or interest on any Guaranteed Obligation is rescinded or must otherwise be
restored by any Holder or the Trustee upon the bankruptcy or reorganization of the Company or
otherwise.




          In furtherance of the foregoing and not in limitation of any other right which any Holder or
the Trustee has at law or in equity against any Guarantor by virtue hereof, upon the failure of the
Company to pay the principal of or premium, if any, or interest on any Guaranteed Obligation when
and as the same shall become due, whether at maturity, by acceleration, by redemption or otherwise,
or to perform or comply with any other Guaranteed Obligation, each Guarantor hereby promises to and
shall, upon receipt of written demand by the Trustee, forthwith pay, or cause to be paid, in cash,
to the Holders or the Trustee an amount equal to the sum (without duplication) of (A) the unpaid
principal amount, including any premium thereon to the extent such premium has become due and
payable, of such Guaranteed Obligations, (B) accrued and unpaid interest on such Guaranteed
Obligations (but only to the extent not prohibited by law) and (C) all other monetary Guaranteed
Obligations of the Company to the Holders and the Trustee.




          Each Guarantor further agrees that, as between it, on the one hand, and the Holders and the
Trustee, on the other hand, (i) the maturity of the Guaranteed Obligations hereby may be
accelerated as provided in Article VI for the purposes of such Guarantor’s Guarantee herein,
notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect
of the Guaranteed Obligations guaranteed hereby, and (ii) in the event of any declaration of
acceleration of such Guaranteed Obligations as provided in Article VI, such Guaranteed Obligations
(whether or not due and payable) shall forthwith become due and payable by such Guarantor for the
purposes of this Section.




          Each Guarantor also agrees to pay any and all costs and expenses (including counsel fees and
expenses) properly incurred by the Trustee or the Holders in enforcing any rights under this
Section.




          SECTION 10.02. Limitation on Liability. Each Guarantor and, by its acceptance of
Notes, each Holder hereby confirms that it is the intention of all such parties that the Notes
Guarantee of such Guarantor not constitute a fraudulent transfer or conveyance for purposes of
Bankruptcy Law, the Uniform Fraudulent Conveyance Act,





86









 







the Uniform Fraudulent Transfer Act or any
similar federal, state, provincial, foreign or local law to the extent applicable to any Note
Guarantee and the such Guarantor’s Notes Guarantee otherwise be limited to the maximum amount that
can be guaranteed under applicable laws. Accordingly, notwithstanding anything to the contrary in
this Indenture, the obligations of each Guarantor under its Notes Guarantee shall be limited to the
maximum amount that can be guaranteed under applicable laws, including Bankruptcy Law, the Uniform
Fraudulent Conveyance Act, the Uniform Fraudulent Transfer Act or any similar federal, state,
provincial, foreign or local law, after giving effect to such maximum amount and all other
contingent and fixed liabilities of such Guarantor that are relevant under such laws. The Notes
Guarantees shall provide that, in the event of default in the payment of principal of or premium,
if any, and interest in respect of the Notes (including any obligation to repurchase the Notes),
the Trustee may, subject, in the case of enforcing against any Collateral, to the Intercreditor
Agreement, institute legal proceedings directly against the relevant Guarantor without first
proceeding against the Company.




          SECTION 10.03. Successors and Assigns. This Article X shall be binding upon each
Guarantor and its successors and assigns and shall inure to the benefit of the successors and
assigns of the Trustee and the Holders and, in the event of any transfer or assignment of rights by
any Holder or the Trustee, the rights and privileges conferred upon that party in this Indenture
and in the Notes shall automatically extend to and be vested in such transferee or assignee, all
subject to the terms and conditions of this Indenture.




          SECTION 10.04. No Waiver. Neither a failure nor a delay on the part of either the
Trustee or the Holders in exercising any right, power or privilege under this Article X shall
operate as a waiver thereof, nor shall a single or partial exercise thereof preclude any other or
further exercise of any right, power or privilege. The rights, remedies and benefits of the
Trustee and the Holders herein expressly specified are cumulative and not exclusive of any other
rights, remedies or benefits which either may have under this Article X at law, in equity, by
statute or otherwise.




          SECTION 10.05. Modification. No modification, amendment or waiver of any provision
of this Article X, nor the consent to any departure by any Guarantor therefrom, shall in any event
be effective unless the same shall be in writing and signed by the Trustee, and then such waiver or
consent shall be effective only in the specific instance and for the purpose for which given. No
notice to or demand on any Guarantor
in any case shall entitle such Guarantor to any other or further notice or demand in the same,
similar or other circumstances.




          SECTION 10.06. Release of Guarantor. A Guarantor’s Notes Guarantee shall terminate
and be of no further force and effect and such Guarantor shall be deemed to be released from all
obligations under this Article X:





     (a) upon the sale (including any sale pursuant to any exercise of remedies by a
holder of Indebtedness of the Company or of such Guarantor) or other



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disposition of such
Guarantor (including by way of merger, consolidation or sale of its Capital Stock),




     (b) upon the sale or disposition of all or substantially all of the assets of such
Guarantor (other than by lease),




     (c) upon the designation of such Guarantor as an Unrestricted Subsidiary in
accordance with the terms of this Indenture,




     (d) at such time as such Guarantor does not have any Indebtedness outstanding that
would have required such Guarantor to enter into a Notes Guarantee pursuant to Section 4.11
and the Company provides an Officers’ Certificate to the Trustee certifying that no such
Indebtedness is outstanding and that the Company elects to have such Guarantor released
from its obligations under this Article X, or




     (e) upon exercise by the Company of its option to elect Covenant Defeasance or Legal
Defeasance pursuant to Article VIII, or




     (f) upon the discharge of the Company’s obligations under this Indenture;




provided, however, that in the case of clauses (a) and (b) of this
Section 10.06, (i) such sale or other disposition is made to a Person other than the
Company, a Restricted Subsidiary or any of their Affiliates and (ii) such sale or
disposition is otherwise permitted by this Indenture.


At the request of the Company, the Trustee shall execute and deliver an appropriate instrument
evidencing such release.




          SECTION 10.07. Contribution. Each Guarantor that makes a payment under its Notes
Guarantee shall be entitled upon payment in full of all Guaranteed Obligations under this Indenture
to a contribution from each other Guarantor in an amount equal to such other Guarantor’s
pro rata portion of such payment based on the respective net assets of all the
Subsidiary Guarantors at the time of such payment determined in accordance with GAAP.




          SECTION 10.08. Non-Impairment. The failure to endorse a Notes Guarantee on any Note
shall not affect or impair the validity of such Notes Guarantee.




ARTICLE XI




Security Documents



          SECTION 11.01. Collateral and Security Documents. (a) To secure the due and
punctual payment of the obligations of the Company and the Guarantors under this Indenture and the
Notes and the Notes Guarantees, the Company, the Guarantors, the Collateral Agent and the Trustee
have entered into the Security Documents providing for





88









 







the creation of specified security interests
and related matters. The Trustee and the Company hereby acknowledge and agree that the Collateral
Agent holds the Collateral in trust for the benefit of the Holders and the Trustee and the other
parties entitled to the benefit of the security provided under the Security Documents pursuant to
the terms of the Security Documents and the Intercreditor Agreement. Notwithstanding anything to
the contrary in this Indenture, no security interest or Lien is granted by the provisions of this
Indenture, the Notes or the Notes Guarantees.




          (b) Each Holder, by accepting a Note, agrees to all of the terms and provisions of the
Security Documents and the Intercreditor Agreement, as the same may be amended from time to time
pursuant to the provisions of the Security Documents, the Intercreditor Agreement and this
Indenture, and authorizes and directs the Trustee and the Collateral Agent to perform their
respective obligations and exercise their respective rights under the Security Documents and the
Intercreditor Agreement in accordance therewith; provided, however, that if any
provisions of the Security Documents or the Intercreditor Agreement limit, qualify or conflict with
the duties imposed by the provisions of the TIA (other than TIA § 314(d) and TIA § 314(b), which
shall not be applicable to this Indenture unless it is qualified under the TIA), the TIA (other
than TIA § 314(d) and TIA § 314(b), which shall not be applicable to this Indenture unless it is
qualified under the TIA) will control.




          (c) As among the Holders, the Collateral shall be held for the equal and ratable benefit of
the Holders without preference, priority or distinction of any thereof over any other.




          SECTION 11.02. Release of Collateral. The Liens created by the Security Documents on
the Collateral shall be automatically released, without the need for any further action by any
Person, and will no longer secure the Notes or the Notes Guarantees or any other Obligations under
this Indenture, and the right of the Holders and holders of such other Obligations to the benefits
and proceeds of such Liens will terminate and be discharged:





     (a) upon the release of any Person that is a Guarantor from its obligations under
Article X, as to the Collateral owned by such Person;




     (b) as to all property and assets subject to such Liens, upon satisfaction of all of
the conditions set forth in Section 8.01;




     (c) as to all property and assets subject to such Liens, upon the occurrence of a
Legal Defeasance or a Covenant Defeasance in accordance with Article VIII;




     (d) as to any property or assets that are the subject of an Asset Sale or other
disposition (to a Person other than the Company or any Guarantor) not prohibited by
Section 4.06, at the time of such disposition;




     (e) as to any property or assets that are or become Excluded Property;




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     (f) as to any property or assets that are subject to a Permitted Collateral Lien to
the extent that applicable law or the terms of such Permitted Collateral Lien (or the terms
of the Indebtedness secured thereby) do not permit such property or assets to be subject to
the Liens created under the Security Documents; provided, however, that (i)
the proceeds (as such term is defined in Article or Section 9 of the UCC (as defined in the
Security Agreement)) of any such property or assets shall continue to be deemed to be
“Collateral” and (ii) this provision shall not require the release of any Lien on or
assignment of any such property or asset to the extent that the UCC (as defined in the
Security Agreement) or any other applicable law provides that such grant of Lien or
assignment is effective irrespective of any prohibitions to such grant provided in any
applicable law or the terms of such Permitted Collateral Lien (or the terms of the
Indebtedness secured thereby); provided further, however, that, unless the
senior notes secured parties (as defined in the Intercreditor Agreement) are the only
Secured Parties (as defined in the Intercreditor Agreement), the Lien on such property or
assets shall only be released to the extent it is released from the Lien created under the
Security Documents in favor of each of the other Secured Parties (as defined in the
Intercreditor Agreement) in their capacity as such;




     (g) as to any property or assets that are the subject of a disposition in connection
with a Permitted Securitization, at the time of such disposition; and




     (h) in whole or in part as to the property and assets subject to such Liens, with the
consent of the Holders of the requisite percentage of the aggregate principal amount of
Notes in accordance with Article IX.


In addition, Collateral may be released from the Liens created by the Security Documents at any
time or from time to time in accordance with the provisions of the Security Documents and the
Intercreditor Agreement. At the request of the Company (which request shall be set forth in an
Officers’ Certificate) for a confirmation, acknowledgement or other documentation requested by the
Company to evidence the release of Liens or Collateral in accordance with this Section 11.02, at
the Company’s and Guarantors’ expense, the Trustee shall promptly take all necessary actions to
execute and/or deliver such confirmation, acknowledgement or other documentation so requested by
the Company. The release of any Collateral from the Lien of the Security Documents or the release,
in whole or in part, of the Liens created by the Security Documents, shall not be deemed to impair
the Lien on the Collateral in contravention of the provisions of this Indenture if and to the
extent the Collateral or Liens are released in accordance with the terms of the applicable Security
Documents, the Intercreditor Agreement and this Article XI.




          SECTION 11.03. Certificates and Opinions. On or before February 1 of each year, the
Company shall deliver to the Trustee an Officers’ Certificate either stating that such action has
been taken with respect to the recording, filing, re-recording and re-filing of this Indenture and
the Security Documents (including financing statements or other instruments) as is necessary to
maintain the security interest intended to be created



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thereby for the benefit of the Holders, and reciting the details of such action, or stating
that no such action is necessary to maintain such Lien. To the extent that this Indenture is
qualified under the TIA, any certificate or opinion required by TIA § 314(d) may be made by an
Officer of the Company except in cases where TIA § 314(d) requires that such certificate or opinion
be made by an independent Person, which Person shall be an independent engineer, appraiser or other
expert selected or reasonably satisfactory to the Trustee; provided, however, that,
notwithstanding anything to the contrary in this Indenture, the Security Documents or the
Intercreditor Agreement, the Company and the Guarantors shall not be required to comply with all or
any portion of TIA § 314(d) if they determine, in good faith, that, under the terms of TIA § 314(d)
and/or any interpretation or guidance as to the meaning thereof by the SEC and its staff, including
“no action” letters or exemptive orders, all or any portion of TIA § 314(d) is inapplicable to the
released Collateral.




          SECTION 11.04. Use of Trust Monies. To the extent received by the Trustee pursuant to
the provisions of the Intercreditor Agreement, the Indenture, the Security Documents or otherwise,
all Trust Monies shall be held by the Trustee as a part of the Collateral securing the Notes and,
so long as no Event of Default has occurred and is continuing, shall either (i) be released as
contemplated by Section 4.06 if such Trust Monies represent Net Cash Proceeds or (ii) to the extent
not required to be applied pursuant to such covenant, at the direction of the Company be applied by
the Trustee from time to time to the payment of the principal of, premium, if any, and interest on
any Notes at maturity or upon redemption or retirement, or to the purchase of Notes upon tender or
in the open market or otherwise, in each case in compliance with the Indenture. The Company or any
Restricted Subsidiary may also withdraw Trust Monies constituting net insurance proceeds to repair
or replace the relevant Collateral in accordance with the provisions of the Indenture. The Trustee
shall be entitled to apply any Trust Monies to cure any Event of Default. Trust Monies deposited
with the Trustee shall be invested in Cash Equivalents pursuant to the direction of the Company
and, so long as no Default has occurred and is continuing, the Company shall be entitled to any
interest or dividends accrued, earned or paid on such Cash Equivalents.



ARTICLE XII




Miscellaneous



          SECTION 12.01. Trust Indenture Act Controls. If any provision of this Indenture
limits, qualifies or conflicts with another provision which is required to be included in this
Indenture by the TIA, other than TIA § 314(d) or TIA § 314(b), the required provision shall
control.



          SECTION 12.02. Notices. Any notice or communication by the Company or any Guarantor,
on the one hand, or the Trustee, on the other hand, to the other shall be in writing and delivered
in person, mailed by first-class mail (registered or certified, return receipt requested),
transmitted via facsimile or sent by overnight air courier guaranteeing next-day delivery,
addressed as follows:



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if to the Company or any Guarantor:



Credit Acceptance Corporation

25505 W. Twelve Mile Road

Southfield, Michigan 48034

Facsimile: (248) 827-8513

Attention: Treasurer



if to the Trustee:



U.S. Bank National Association

Corporate Trust Services

EP-MN-WS3C

60 Livingston Avenue

St. Paul, Minnesota 55107-1419

Attention: Credit Acceptance Corporate Administrator

Facsimile: (651) 495-8097

Email: jennifer.edwards2@usbank.com




          The Company, any Guarantor or the Trustee by notice to the others may designate additional or
different addresses and/or facsimile numbers for subsequent notices or communications.



          Any notice or communication to a Holder shall be mailed by first-class mail (registered or
certified, return receipt requested) or sent by overnight air courier guaranteeing next-day
delivery to such Holder at such Holder’s address as it appears on the registration books of the
Registrar and shall be sufficiently given if so mailed or sent within the time prescribed. All
notices or communications shall be deemed to have been duly given at the time delivered in person,
if so delivered; three Business Days after being deposited in the mail, postage prepaid, if mailed;
upon acknowledgment of receipt, if transmitted via facsimile; and the next Business Day after
timely delivery to the courier if sent by overnight air courier guaranteeing next-day delivery.



          Failure to mail or send a notice or communication to a Holder or any defect in it shall not
affect its sufficiency with respect to other Holders. If a notice or communication is delivered,
mailed, transmitted or sent in the manner provided above within the time prescribed, it is duly
given, whether or not the addressee receives it.



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



          In case it shall be impracticable to give notice in the manner provided above, including by
reason of a suspension of regular mail service, then such notification



92









 




as shall be made with the approval of the Trustee shall constitute a sufficient notification
for every purpose hereunder.




          SECTION 12.03. Communication by Holders with Other Holders. Holders may communicate
pursuant to TIA § 312(b) with other Holders with respect to their rights under this Indenture or
the Notes. The Company, any Guarantor, the Trustee, the Registrar and anyone else shall have the
protection of TIA § 312(c).



          SECTION 12.04. Certificate and Opinion as to Conditions Precedent. Upon any request
or application by the Company to the Trustee to take or refrain from taking any action under this
Indenture, the Company shall furnish to the Trustee:




     (a) an Officers’ Certificate in form and substance reasonably satisfactory to the
Trustee stating that, in the opinion of the signers, all conditions precedent, if any,
provided for in this Indenture relating to the proposed action have been complied with; and




     (b) an Opinion of Counsel in form and substance reasonably satisfactory to the Trustee
stating that, in the opinion of such counsel (who may rely upon an Officers’ Certificate as
to matters of fact), all such conditions precedent have been complied with.



          SECTION 12.05. Statements Required in Certificate or Opinion. Each certificate or
opinion with respect to compliance with a covenant or condition provided for in this Indenture
(other than pursuant to Section 6.05) shall include:




     (a) a statement that the individual making such certificate or opinion has read such
covenant or condition;




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




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




     (d) a statement as to whether or not, in the opinion of such individual, such covenant
or condition has been complied with.



          SECTION 12.06. When Notes Disregarded. In determining whether the Holders of the
required principal amount of Notes have concurred in any direction, waiver or consent, Notes owned
by the Company or by any Person directly or indirectly controlling or controlled by or under direct
or indirect common control with the Company shall be disregarded and deemed not to be outstanding,
except that, for the purpose of determining whether the Trustee shall be protected in relying on
any such



93









 




direction, waiver or consent, only Notes which the Trustee knows are so owned shall be so
disregarded. Subject to the foregoing, only Notes outstanding at the time shall be considered in
any such determination.




          SECTION 12.07. Rules by Trustee, Paying Agent and Registrar. The Trustee may make
reasonable rules for action by or a meeting of Holders. The Registrar and the Paying Agent may
make reasonable rules for their functions.



          SECTION 12.08. Legal Holidays. If a payment date is a Legal Holiday, payment shall be
made on the next succeeding day that is not a Legal Holiday, and no interest shall accrue for the
intervening period on any amount that would otherwise have been payable on such payment date if it
were not a Legal Holiday. If a regular record date is a Legal Holiday, the record date shall not
be affected.



          SECTION 12.09. Governing Law. This Indenture and the Notes shall be governed by, and
construed in accordance with, the laws of the State of New York, without giving effect to
applicable principles of conflicts of law to the extent that the application of the law of another
jurisdiction would be required thereby.



          SECTION 12.10. No Recourse Against Others. No director, officer, employee,
incorporator or shareholder of the Company, and no director, trustee, officer, employee,
incorporator or shareholder (other than the Company or a Restricted Subsidiary) of any Subsidiary
of the Company, as such, shall have any liability for any obligations of the Company or any
Guarantor under the Notes, this Indenture, any Notes Guarantee, any Registration Rights Agreement
(as defined in the Appendix) or the Security Documents or for any claim based on, in respect of or
by reason of such obligations or their creation. By accepting a Note, each Holder shall waive and
release all such liability. This waiver and release shall be part of the consideration for the
issue of the Notes.



          SECTION 12.11. Successors. All agreements of the Company in this Indenture and the
Notes shall bind its successors. All agreements of the Trustee in this Indenture shall bind its
successors.



          SECTION 12.12. Multiple Originals. The parties may sign any number of copies of this
Indenture. Each signed copy shall be an original, but all of them together represent the same
agreement. One signed copy is enough to prove this Indenture.



          SECTION 12.13. Table of Contents; Headings. The table of contents, cross-reference
sheet and headings of the Articles and Sections of this Indenture have been inserted for
convenience of reference only, are not intended to be considered a part of this Indenture and shall
not modify or restrict any of the terms or provisions of this Indenture.



          SECTION 12.14. Severability. In case any provision in this Indenture or the Notes
shall be invalid, illegal or unenforceable, the validity, legality and



94









 




enforceability of the remaining provisions shall not in any way be affected or impaired
thereby, and such provision shall be ineffective only to the extent of such invalidity, illegality
or unenforceability.




          SECTION 12.15. No Adverse Interpretation of Other Agreements. This Indenture may not
be used to interpret any other indenture, loan or debt agreement of the Company or any of its
Subsidiaries or of any other Person. Any such indenture, loan or debt agreement may not be used to
interpret this Indenture.



95









 





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



	 	 	 	 	 
	 	Credit Acceptance Corporation

 	 
	 	By:  	/s/ Douglas W. Busk
 	 
	 	 	Name:  	Douglas W. Busk 	 
	 	 	Title:  	Senior Vice President and Treasurer 	 
	 
	 	Buyers Vehicle Protection Plan, Inc.

 	 
	 	By:  	/s/ Douglas W. Busk
 	 
	 	 	Name:  	Douglas W. Busk 	 
	 	 	Title:  	Treasurer 	 
	 
	 	Vehicle Remarketing Services, Inc.

 	 
	 	By:  	/s/ Douglas W. Busk
 	 
	 	 	Name:  	Douglas W. Busk 	 
	 	 	Title:  	Treasurer 	 
	 



[Signature Page to Indenture]










 









 









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



	 	 	 	 	 
	 	U.S. Bank National Association

 	 
	 	By:  	/s/ Raymond S. Haverstock
 	 
	 	 	Name:  	Raymond S. Haverstock 	 
	 	 	Title:  	Vice President 	 
	 



[Signature Page to Indenture]











 









 








RULE 144A/REGULATION S APPENDIX

to the Indenture, dated as of February 1, 2010,

among Credit Acceptance Corporation, a Michigan

corporation, the Guarantors (as defined therein) listed

on the signature pages thereto and U.S. Bank National Association,

a national banking association, as trustee (the “Indenture”).




PROVISIONS RELATING TO INITIAL NOTES,

PRIVATE EXCHANGE NOTES,

EXCHANGE NOTES AND

REPLACEMENT NOTES





     1. Definitions



          1.1 Definitions. For the purposes of this Rule 144A/Regulation S Appendix (this
“Appendix”), the following terms shall have the meanings indicated below (and other
capitalized terms used but not defined in this Appendix shall have the meanings given to them in
the Indenture, except as the context requires otherwise):



          ”Applicable Procedures” means, with respect to any transfer or transaction involving a
Temporary Regulation S Global Note or beneficial interest therein, the rules and procedures of the
Depository for such a Temporary Regulation S Global Note, to the extent applicable to such
transaction and as in effect from time to time.



          ”Definitive Note” means a certificated Note, other than a Global Note, bearing, if
required, the appropriate Restrictive Legends set forth in Section 2.3(e) of this Appendix.



          ”Depository” means The Depository Trust Company, its nominees and their respective
successors.



          ”Distribution Compliance Period”, with respect to any Notes, means the period of 40
consecutive days beginning on and including the later of (i) the day on which such Notes are first
offered to Persons other than distributors (as defined in Regulation S under the Securities Act) in
reliance on Regulation S and (ii) the issue date with respect to such Notes.



          ”Exchange Notes” means (1) the 9.125% First Priority Senior Secured Notes due 2017
issued pursuant to the Indenture in connection with the Registered Exchange Offer pursuant to the
Registration Rights Agreement, dated as of the Issue Date, among the Company, the Guarantors and
Credit Suisse Securities (USA) LLC, as representative of the Initial Purchasers and (2) Additional
Notes, if any, issued pursuant to a registration statement filed with the SEC under the Securities
Act.



          ”Initial Notes” means (1) $225,000,000 aggregate principal amount of 9.125% First
Priority Senior Secured Notes due 2017 issued on the Issue Date and (2)
Additional Notes, if any, issued in a transaction exempt from the registration requirements of
the Securities Act.



 









 





          ”Initial Purchasers” means (1) with respect to the Initial Notes issued on the Issue
Date, Credit Suisse Securities (USA) LLC, BMO Capital Markets Corp., Comerica Securities, Inc.,
Fifth Third Securities, Inc. and RBS Securities Inc and (2) with respect to each issuance of
Additional Notes, the Persons purchasing such Additional Notes under the related Purchase
Agreement.



          ”Notes” means all the 9.125% First Priority Senior Secured Notes due 2017 issued under
the Indenture, treated as a single class.



          ”Notes Custodian” means the custodian with respect to a Global Note (as appointed by
the Depository), or any successor Person thereto and shall initially be the Trustee.



          ”Private Exchange” means the offer by the Company, pursuant to the Registration Rights
Agreement, to the Initial Purchasers to issue and deliver to each Initial Purchaser, in exchange
for the Initial Notes held by the Initial Purchaser as part of its initial distribution, a like
aggregate principal amount of Private Exchange Notes.



          ”Private Exchange Notes” means any 9.125% First Priority Senior Secured Notes due 2017
issued in connection with a Private Exchange.



          ”Purchase Agreement” means (1) with respect to the Initial Notes issued on the Issue
Date, the Purchase Agreement dated January 25, 2010, among the Company and the Initial Purchasers,
and (2) with respect to each issuance of Additional Notes, the purchase agreement or underwriting
agreement among the Company and the Persons purchasing such Additional Notes.



          ”QIB” means a “qualified institutional buyer” as defined in Rule 144A.



          ”Registered Exchange Offer” means the offer by the Company, pursuant to the
Registration Rights Agreement, to certain Holders of Initial Notes, to issue and deliver to such
Holders, in exchange for the Initial Notes, a like aggregate principal amount of Exchange Notes
registered under the Securities Act.



          ”Registration Rights Agreement” means, as applicable, (1) the Registration Rights
Agreement, dated as of the Issue Date, among the Company, the Guarantors and Credit Suisse
Securities (USA) LLC, as representative of the Initial Purchasers and (2) with respect to each
issuance of Additional Notes issued in a transaction exempt from the registration requirements of
the Securities Act, the registration rights agreement, if any, among the Company and the Persons
purchasing such Additional Notes under the related Purchase Agreement.



          ”Restrictive Legends” means the Restricted Note Legend, the Regulation S Legend, the
Regulation S Global Note Legend and the Temporary Regulation S Global Note Legend.




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          ”Rule 144A Notes” means all Notes offered and sold to QIBs in reliance on Rule 144A.



          ”Securities Act” means the Securities Act of 1933.



          ”Shelf Registration Statement” means the registration statement issued by the Company
in connection with the offer and sale of Initial Notes or Private Exchange Notes pursuant to a
Registration Rights Agreement.



          ”Transfer Restricted Notes” means each Note until (i) the date on which such Transfer
Restricted Note has been exchanged by a person other than a broker-dealer for a freely transferable
Exchange Note in the Registered Exchange Offer, (ii) following the exchange by a broker-dealer in
the Registered Exchange Offer of a Note for an Exchange Note, the date on which such Exchange Note
is sold to a purchaser who receives from such broker-dealer on or prior to the date of such sale a
copy of the prospectus contained in the Exchange Offer Registration Statement, (iii) the date on
which such Note has been effectively registered under the Securities Act and disposed of in
accordance with the Shelf Registration Statement or (iv) the date on which such Note (A) may be
sold to the public in accordance with Rule 144 under the Securities Act by a person that is not an
“affiliate” (as defined in Rule 144 under the Securities Act) of the Company where no conditions of
Rule 144 are then applicable (other than the holding period requirement in paragraph (d) of Rule
144 so long as such holding period requirement is satisfied at such time of determination) and (B)
either (x) does not bear any restrictive legends relating to the Securities Act or (y) does not
bear a restricted CUSIP number.



          1.2 Other Definitions



	 	 	 
	 	 	Section of this Appendix in
	 	 	Which Definition
	Term	 	Appears:
	“Agent Members”
	 	2.1(b)
	 
	 	 
	“Definitive Note Legend”
	 	2.3(e)
	 
	 	 
	“Global Note Legend”
	 	2.3(e)
	 
	 	 
	“Global Notes”
	 	2.1(a)
	 
	 	 
	“OID Legend”
	 	2.3(e)
	 
	 	 
	“Permanent Regulation S Global Notes”
	 	2.1(a)
	 
	 	 
	“Regulation S”
	 	2.1(a)






A-3









 






	 	 	 
	 	 	Section of this Appendix in
	 	 	Which Definition
	Term	 	Appears:
	“Regulation S Global Note Legend”
	 	2.3(e)
	 
	 	 
	“Regulation S Global Notes”
	 	2.1(a)
	 
	 	 
	“Regulation S Legend”
	 	2.3(e)
	 
	 	 
	“Replacement Notes”
	 	2.2
	 
	 	 
	“Restricted Global Notes”
	 	2.1(a)
	 
	 	 
	“Restricted Note Legend”
	 	2.3(e)
	 
	 	 
	“Rule 144A”
	 	2.1(a)
	 
	 	 
	“Rule 144A Global Notes”
	 	2.1(a)
	 
	 	 
	“Temporary Regulation S Global Note Legend”
	 	2.3(e)
	 
	 	 
	“Temporary Regulation S Global Notes”
	 	2.1(a)
	 
	 	 
	“Unrestricted Global Notes”
	 	2.1(a)






     2. The Notes.



          2.1 (a) Form and Dating. The Initial Notes will be offered and sold by the Company
pursuant to a Purchase Agreement. The Initial Notes will be resold initially only to (i) QIBs in
reliance on Rule 144A under the Securities Act (“Rule 144A”) and (ii) Persons other than
U.S. Persons (as defined in Regulation S) in reliance on Regulation S under the Securities Act
(“Regulation S”). Initial Notes may thereafter be transferred to, among others and QIBs
and purchasers in reliance on Regulation S, subject to the restrictions on transfer set forth
herein. Initial Notes initially resold pursuant to Rule 144A shall be issued initially in the form
of one or more permanent global Notes in definitive, fully registered form ( “Rule 144A Global
Notes”); and Initial Notes initially resold pursuant to Regulation S shall be issued initially
in the form of one or more temporary global securities in fully registered form (“Temporary
Regulation S Global Notes”), in each case without interest coupons and with the global
securities legend and the applicable Restrictive Legends, which shall be deposited on behalf of the
purchasers of the Initial Notes represented thereby with the Notes Custodian and registered in the
name of the Depository or a nominee of the Depository, duly executed by the Company and
authenticated by the Trustee as provided in the Indenture. Except as set forth in this Section
2.1(a), beneficial ownership interests in a Temporary Regulation S Global Note will not be
exchangeable for interests in Rule 144A Global Notes, permanent Regulation S global Notes
(“Permanent Regulation S Global Notes” and, together with Temporary Regulation S Global
Notes, “Regulation S Global Notes”) or any other Note prior to the expiration of the
Distribution Compliance Period and then, after the expiration of the Distribution Compliance
Period, may be exchanged for



A-4









 




interests in a Rule 144A Global Note or a Permanent Regulation S Global Note only upon certification in form reasonably
satisfactory to the Trustee that beneficial ownership interests in such Temporary Regulation S
Global Note are owned either by non-U.S. persons or U.S. persons who purchased such interests in a
transaction that did not require registration under the Securities Act.




          Beneficial interests in a Temporary Regulation S Global Note may be exchanged for interests in
Rule 144A Global Notes if (1) such exchange occurs in connection with a transfer of Notes in
compliance with Rule 144A and (2) the transferor of the beneficial interest in the Temporary
Regulation S Global Note first delivers to the Trustee a written certificate (substantially in the
form of Exhibit III) to the effect that the beneficial interest in the Temporary Regulation S
Global Note is being transferred to a Person (a) who the transferor reasonably believes to be a
QIB, (b) purchasing for its own account or the account of a QIB in a transaction meeting the
requirements of Rule 144A, and (c) in accordance with all applicable securities laws of the States
of the United States and other jurisdictions.



          Beneficial interests in a Rule 144A Global Note may be transferred to a Person who takes
delivery in the form of an interest in a Regulation S Global Note, whether before or after the
expiration of the Distribution Compliance Period, only if the transferor first delivers to the
Trustee a written certificate (in the form provided in the Indenture) to the effect that such
transfer is being made in accordance with Rule 903 or 904 of Regulation S or Rule 144 (if
applicable).



          Rule 144A Global Notes, Temporary Regulation S Global Notes and Permanent Regulation S Global
Notes are collectively referred to herein as “Restricted Global Notes.” Any other Notes in
global form, without Restrictive Legends, are collectively referred to herein as “Unrestricted
Global Notes” (together with Restricted Global Notes, “Global Notes”). The aggregate
principal amount of the Global Notes may from time to time be increased or decreased by adjustments
made on the records of the Trustee and the Depository or its nominee as hereinafter provided.



          (b) Book-Entry Provisions. This Section 2.1(b) shall apply only to a Global Note
deposited with or on behalf of the Depository.



          The Company shall execute and the Trustee shall, in accordance with this Section 2.1(b),
authenticate and deliver initially one or more Global Notes that (a) shall be registered in the
name of the Depository for such Global Note or Global Notes or the nominee of such Depository and
(b) shall be delivered by the Trustee to such Depository or pursuant to such Depository’s
instructions or held by the Trustee as custodian for the Depository.



          Members of, or participants in, the Depository (“Agent Members”) shall have no rights
under the Indenture with respect to any Global Note held on their behalf by the Depository or by
the Trustee as the custodian of the Depository or under such Global Note, and the Company, the
Trustee and any agent of the Company or the Trustee shall be entitled to treat the Depository as
the absolute owner of such Global Note for all



A-5









 




purposes whatsoever. Notwithstanding the foregoing, nothing herein shall prevent the Company,
the Trustee or any agent of the Company or the Trustee from giving effect to any written
certification, proxy or other authorization furnished by the Depository or impair, as between the
Depository and its Agent Members, the operation of customary practices of such Depository governing
the exercise of the rights of a holder of a beneficial interest in any Global Note.




          (c) Definitive Notes. Except as provided in this Section 2.1 of this Appendix or
Section 2.3 or 2.4 of this Appendix, owners of beneficial interests in Global Notes shall not be
entitled to receive physical delivery of Definitive Notes.



     2.2 Authentication. The Trustee shall authenticate and deliver (1) on the Issue Date,
an aggregate principal amount of $225,000,000 9.125% First Priority Senior Secured Notes due 2017,
(2) any Additional Notes for an original issue in an aggregate principal amount specified in the
written order of the Company pursuant to this Section 2.2, (3) Exchange Notes or Private Exchange
Notes for issue only in a Registered Exchange Offer or a Private Exchange, respectively, pursuant
to a Registration Rights Agreement, for a like principal amount of Initial Notes and (4) any other
Notes issued after the Issue Date in replacement of or exchange for any Note in like principal
amount (any such Notes, “Replacement Notes”), in each case upon a written order of the
Company signed by an Officer. Such order shall specify the amount of the Notes to be authenticated
and the date on which the original issue of Notes is to be authenticated and, in the case of any
issuance of Additional Notes pursuant to Section 2.13 of the Indenture, shall certify that such
issuance is in compliance with Section 4.03 of the Indenture.



          2.3 Transfer and Exchange. (a) Transfer and Exchange of Definitive Notes.
When Definitive Notes are presented to the Registrar with a request:




     (x) to register the transfer of such Definitive Notes; or




     (y) to exchange such Definitive Notes for an equal principal amount of
Definitive Notes of other authorized denominations,


the Registrar shall register the transfer or make the exchange as requested if its reasonable
requirements for such transaction are met; provided, however, that the Definitive
Notes surrendered for transfer or exchange:




          (i) shall be duly endorsed or accompanied by a written instrument of transfer in form
reasonably satisfactory to the Company and the Registrar, duly executed by the Holder
thereof or its attorney duly authorized in writing; and



          (ii) if such Definitive Notes are required to bear a restricted securities legend,
they are being transferred or exchanged pursuant to an effective registration statement
under the Securities Act, pursuant to Section 2.3(b) of this Appendix or pursuant to clause
(A), (B) or (C) below, and are accompanied by the following additional information and
documents, as applicable:



A-6









 






     (A) if such Definitive Notes are being delivered to the Registrar by a Holder
for registration in the name of such Holder, without transfer, a certification from
such Holder to that effect; or




     (B) if such Definitive Notes are being transferred to the Company, a
certification to that effect; or




     (C) if such Definitive Notes are being transferred (x) pursuant to an
exemption from registration in accordance with Rule 144A, Regulation S or Rule 144
under the Securities Act; or (y) in reliance upon another exemption from the
requirements of the Securities Act: (i) a certification to that effect (in the form
set forth on the reverse of the Note) and (ii) if the Company so requests, an
opinion of counsel or other evidence reasonably satisfactory to it as to the
compliance with the restrictions set forth in the legend set forth in Section
2.3(e)(i) of this Appendix.



          (b) Restrictions on Transfer of a Definitive Note for a Beneficial Interest in a
Restricted Global Note. A Definitive Note may not be exchanged for a beneficial interest in a
Rule 144A Global Note or a Permanent Regulation S Global Note except upon satisfaction of the
requirements set forth below. Upon receipt by the Trustee of a Definitive Note, duly endorsed or
accompanied by appropriate instruments of transfer, in form satisfactory to the Trustee, together
with:




     (i) certification, in the form set forth on the reverse of the Note, that such
Definitive Note is either (A) being transferred to a QIB in accordance with Rule
144A or (B) being transferred after expiration of the Distribution Compliance
Period by a Person who initially purchased such Note in reliance on Regulation S to
a buyer who elects to hold its interest in such Note in the form of a beneficial
interest in the Permanent Regulation S Global Note; and




     (ii) written instructions directing the Trustee to make, or to direct the
Notes Custodian to make, an adjustment on its books and records with respect to
such Rule 144A Global Note (in the case of a transfer pursuant to clause (b)(i)(A)
of this Section 2.3) or Permanent Regulation S Global Note (in the case of a
transfer pursuant to clause (b)(i)(B) of this Section 2.3) to reflect an increase
in the aggregate principal amount of the Notes represented by the Rule 144A Global
Note or Permanent Regulation S Global Note, as applicable, such instructions to
contain information regarding the Depository account to be credited with such
increase,


then the Trustee shall cancel such Definitive Note and cause, or direct the Notes Custodian to
cause, in accordance with the standing instructions and procedures existing between the Depository
and the Notes Custodian, the aggregate principal amount of Notes represented by the Rule 144A
Global Note or Permanent Regulation S Global Note, as applicable, to be increased by the aggregate
principal amount of the Definitive Note to be exchanged and shall credit or cause to be credited to
the account of the Person






A-7









 







specified in such instructions a beneficial interest in the Rule 144A Global Note or Permanent
Regulation S Global Note, as applicable, equal to the principal amount of the Definitive Note so
canceled. If no Rule 144A Global Notes or Permanent Regulation S Global Notes, as applicable, are
then outstanding, the Company shall issue and the Trustee shall authenticate, upon written order of
the Company in the form of an Officers’ Certificate of the Company, a new Rule 144A Global Note or
Permanent Regulation S Global Note, as applicable, in the appropriate principal amount.





(c) Transfer and Exchange of Global Notes.




     (i) The transfer and exchange of Global Notes or beneficial interests therein
shall be effected through the Depository, in accordance with the Indenture
(including applicable restrictions on transfer set forth herein, if any) and the
procedures of the Depository therefor. A transferor of a beneficial interest in a
Global Note shall deliver to the Registrar a written order given in accordance with
the Depository’s procedures containing information regarding the participant
account of the Depository to be credited with a beneficial interest in the Global
Note. The Registrar shall, in accordance with such instructions instruct the
Depository to credit to the account of the Person specified in such instructions a
beneficial interest in the Global Note and to debit the account of the Person
making the transfer of the beneficial interest in the Global Note being
transferred.




     (ii) If the proposed transfer is a transfer of a beneficial interest in one
Global Note to a beneficial interest in another Global Note, the Registrar shall
reflect on its books and records the date and an increase in the principal amount
of the Global Note to which such interest is being transferred in an amount equal
to the principal amount of the interest to be so transferred, and the Registrar
shall reflect on its books and records the date and a corresponding decrease in the
principal amount of the Global Note from which such interest is being transferred.
Upon such transfer, the beneficial interest in such first-referenced Global Note
shall cease to be an interest in such Global Note and shall become an interest in
such other Global Note.




     (iii) Notwithstanding any other provisions of this Appendix (other than the
provisions set forth in Section 2.4 of this Appendix), a Global Note may not be
transferred as a whole except by the Depository to a nominee of the Depository or
by a nominee of the Depository to the Depository or another nominee of the
Depository or by the Depository or any such nominee to a successor Depository or a
nominee of such successor Depository.




     (iv) In the event that a beneficial interest in a Restricted Global Note is
exchanged for Definitive Notes under Section 2.4 of this Appendix, prior to the
consummation of a Registered Exchange Offer or the effectiveness



A-8









 






of a Shelf Registration Statement with respect to such Notes, such Notes may
be exchanged only in accordance with such procedures as are substantially
consistent with the provisions of this Section 2.3 (including the certification
requirements set forth on the reverse of the Initial Notes intended to ensure that
such transfers comply with Rule 144A, Regulation S or another applicable exemption
under the Securities Act, as the case may be) and such other procedures as may from
time to time be adopted by the Company.



          (d) Restrictions on Transfer of Temporary Regulation S Global Notes. During the
Distribution Compliance Period, beneficial ownership interests in Temporary Regulation S Global
Notes may only be sold, pledged or transferred in accordance with the Applicable Procedures and
only (i) to the Company, (ii) in an offshore transaction in accordance with Regulation S (other
than a transaction resulting in an exchange for an interest in a Permanent Regulation S Global
Note), (iii) pursuant to an effective registration statement under the Securities Act, in each case
in accordance with any applicable securities laws of any State of the United States.



          (e) Legend. In each case unless the Company determines otherwise in compliance with
applicable law:




     (i) Except as permitted by the following paragraphs (ii), (iii), (iv) and (v),
each Note certificate evidencing Restricted Global Notes (and all Notes issued in
exchange therefor or in substitution thereof), in the case of Notes offered
otherwise than in reliance on Regulation S, shall bear a legend in substantially
the following form (the “Restricted Note Legend”):




THIS NOTE (OR ITS PREDECESSOR) WAS ORIGINALLY ISSUED IN A TRANSACTION
EXEMPT FROM REGISTRATION UNDER THE UNITED STATES SECURITIES ACT OF
1933 (THE “SECURITIES ACT”), AND THIS NOTE MAY NOT BE OFFERED, SOLD OR
OTHERWISE TRANSFERRED IN THE ABSENCE OF SUCH REGISTRATION OR AN
APPLICABLE EXEMPTION THEREFROM. EACH PURCHASER OF THIS NOTE IS HEREBY
NOTIFIED THAT THE SELLER OF THIS NOTE MAY BE RELYING ON THE EXEMPTION
FROM THE PROVISIONS OF SECTION 5 OF THE SECURITIES ACT PROVIDED BY
RULE 144A THEREUNDER.




THE HOLDER OF THIS NOTE AGREES FOR THE BENEFIT OF THE COMPANY THAT (A)
THIS NOTE MAY BE OFFERED, RESOLD, PLEDGED OR OTHERWISE TRANSFERRED,
ONLY (I) TO THE ISSUER OR ANY OF ITS WHOLLY-OWNED SUBSIDIARIES,



A-9









 







(II)IN THE UNITED STATES TO A PERSON WHOM THE SELLER REASONABLY BELIEVES
IS A QUALIFIED INSTITUTIONAL BUYER (AS DEFINED IN RULE 144A UNDER THE
SECURITIES ACT) IN A TRANSACTION MEETING THE REQUIREMENTS OF RULE
144A, (III) OUTSIDE THE UNITED STATES IN A TRANSACTION COMPLYING WITH
THE PROVISIONS OF RULE 904 UNDER THE SECURITIES ACT, (IV) PURSUANT TO
AN EXEMPTION FROM REGISTRATION UNDER THE SECURITIES ACT PROVIDED BY
RULE 144 THEREUNDER (IF AVAILABLE), (V) TO AN INSTITUTIONAL
“ACCREDITED INVESTOR” WITHIN THE MEANING OF RULE 501(a)(1), (2), (3)
OR (7) UNDER THE SECURITIES ACT THAT IS ACQUIRING NOTES FOR ITS OWN
ACCOUNT OR FOR THE ACCOUNT OF SUCH AN INSTITUTIONAL ACCREDITED
INVESTOR, IN EACH CASE IN A MINIMUM PRINCIPAL AMOUNT OF SUCH NOTES OF
$250,000, FOR INVESTMENT PURPOSES AND NOT WITH A VIEW TO OR FOR OFFER
OR SALE IN CONNECTION WITH ANY DISTRIBUTION IN VIOLATION OF THE
SECURITIES ACT OR (VI) PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT
UNDER THE SECURITIES ACT, IN EACH OF CASES (I) THROUGH (VI) IN
ACCORDANCE WITH ANY APPLICABLE SECURITIES LAWS OF ANY STATE OF THE
UNITED STATES, AND IN EACH OF CASES (III), (IV) AND (V) SUBJECT TO THE
ISSUER’S AND THE TRUSTEE’S RIGHT PRIOR TO ANY SUCH OFFER, SALE OR
TRANSFER TO REQUIRE THE DELIVERY OF AN OPINION OF COUNSEL,
CERTIFICATION, AND/OR OTHER INFORMATION SATISFACTORY TO EACH OF THE
ISSUER AND THE TRUSTEE AND (B) THE HOLDER WILL, AND EACH SUBSEQUENT
HOLDER IS REQUIRED TO, NOTIFY ANY PURCHASER OF THIS NOTE FROM IT OF
THE RESALE RESTRICTIONS REFERRED TO IN (A) ABOVE.




     Each certificate evidencing a Note offered in reliance on Regulation S shall,
in addition to the foregoing, bear a legend in substantially the following form
(the “Regulation S Legend”):




THIS NOTE (OR ITS PREDECESSOR) WAS ORIGINALLY ISSUED IN A TRANSACTION
ORIGINALLY EXEMPT FROM REGISTRATION UNDER THE U.S. SECURITIES ACT OF
1933, AS AMENDED (THE “SECURITIES ACT”),



A-10









 






AND MAY NOT BE TRANSFERRED IN THE UNITED STATES OR TO, OR FOR THE
ACCOUNT OR BENEFIT OF, ANY U.S. PERSON EXCEPT
PURSUANT TO AN AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS
OF THE SECURITIES ACT AND ALL APPLICABLE STATE SECURITIES LAWS. TERMS
USED ABOVE HAVE THE MEANINGS GIVEN TO THEM IN REGULATION S UNDER THE
SECURITIES ACT.




     Each Global Note shall also bear the following additional legend (and/or such
other legend as may be required by the Depository) (the “Global Note
Legend”):




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




TRANSFERS OF THIS GLOBAL NOTE SHALL BE LIMITED TO TRANSFERS IN WHOLE,
BUT NOT IN PART, TO NOMINEES OF DTC OR TO A SUCCESSOR THEREOF OR SUCH
SUCCESSOR’S NOMINEE AND TRANSFERS OF PORTIONS OF THIS GLOBAL NOTE
SHALL BE LIMITED TO TRANSFERS MADE IN ACCORDANCE WITH THE RESTRICTIONS
SET FORTH IN THE INDENTURE REFERRED TO ON THE REVERSE HEREOF.




     Each Regulation S Global Note shall also bear a legend substantially in the
following form (the “Regulation S Global Note Legend”):




UNTIL 40 DAYS AFTER THE LATER OF COMMENCEMENT OR COMPLETION OF THE
OFFERING, AN OFFER OR SALE OF SECURITIES



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WITHIN THE UNITED STATES BY A
DEALER (AS DEFINED IN THE SECURITIES ACT) MAY VIOLATE THE REGISTRATION
REQUIREMENTS OF THE SECURITIES ACT IF SUCH OFFER OR SALE IS MADE
OTHERWISE THAN IN ACCORDANCE WITH RULE 144A THEREUNDER.




     Each Temporary Regulation S Global Note shall also bear a legend substantially
in the following form (the “Temporary Regulation S Global Note Legend”):




EXCEPT AS SET FORTH BELOW, BENEFICIAL OWNERSHIP INTERESTS IN THIS
TEMPORARY REGULATION S GLOBAL NOTE WILL NOT BE EXCHANGEABLE FOR
INTERESTS IN THE PERMANENT REGULATION S GLOBAL NOTE OR ANY OTHER
SECURITY REPRESENTING AN INTEREST IN THE SECURITIES REPRESENTED HEREBY
WHICH DO NOT CONTAIN A LEGEND CONTAINING RESTRICTIONS ON TRANSFER,
UNTIL THE EXPIRATION OF THE “40-DAY DISTRIBUTION COMPLIANCE PERIOD”
(WITHIN THE MEANING OF RULE 903(b)(2) OF REGULATION S UNDER THE
SECURITIES ACT) AND THEN ONLY UPON CERTIFICATION IN FORM REASONABLY
SATISFACTORY TO THE TRUSTEE THAT SUCH BENEFICIAL INTERESTS ARE OWNED
EITHER BY NON-U.S. PERSONS OR U.S. PERSONS WHO PURCHASED SUCH
INTERESTS IN A TRANSACTION THAT DID NOT REQUIRE REGISTRATION UNDER THE
SECURITIES ACT. DURING SUCH 40-DAY DISTRIBUTION COMPLIANCE PERIOD,
BENEFICIAL OWNERSHIP INTERESTS IN THIS TEMPORARY REGULATION S GLOBAL
NOTE MAY ONLY BE SOLD, PLEDGED OR TRANSFERRED (I) TO THE COMPANY, (II)
OUTSIDE THE UNITED STATES IN A TRANSACTION IN ACCORDANCE WITH RULE 904
OF REGULATION S UNDER THE SECURITIES ACT, OR (III) PURSUANT TO AN
EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT, IN EACH OF
CASES (I) THROUGH (III) IN ACCORDANCE WITH ANY APPLICABLE SECURITIES
LAWS OF ANY STATE OF THE UNITED STATES. HOLDERS OF INTERESTS IN THIS
TEMPORARY REGULATION S GLOBAL NOTE WILL NOTIFY ANY PURCHASER OF THIS
SECURITY



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OF THE RESALE RESTRICTIONS REFERRED TO ABOVE, IF THEN
APPLICABLE.




AFTER THE EXPIRATION OF THE DISTRIBUTION COMPLIANCE PERIOD BENEFICIAL
INTERESTS IN THIS TEMPORARY REGULATION S GLOBAL NOTE MAY BE EXCHANGED
FOR INTERESTS IN A RULE 144A GLOBAL NOTE ONLY IF (1) SUCH EXCHANGE
OCCURS IN CONNECTION WITH A TRANSFER OF THE SECURITIES IN COMPLIANCE
WITH RULE 144A AND (2) THE TRANSFEROR OF THE REGULATION S GLOBAL NOTE
FIRST DELIVERS TO THE TRUSTEE A WRITTEN CERTIFICATE (IN THE FORM
ATTACHED TO THIS CERTIFICATE) TO THE EFFECT THAT THE REGULATION S
GLOBAL NOTE IS BEING TRANSFERRED (A) TO A PERSON WHO THE TRANSFEROR
REASONABLY BELIEVES TO BE A QUALIFIED INSTITUTIONAL BUYER WITHIN THE
MEANING OF RULE 144A, (B) TO A PERSON WHO IS PURCHASING FOR ITS OWN
ACCOUNT OR THE ACCOUNT OF A QUALIFIED INSTITUTIONAL BUYER IN A
TRANSACTION MEETING THE REQUIREMENTS OF RULE 144A, AND (C) IN
ACCORDANCE WITH ALL APPLICABLE SECURITIES LAWS OF THE STATES OF THE
UNITED STATES AND OTHER JURISDICTIONS.




BENEFICIAL INTERESTS IN A RULE 144A GLOBAL NOTE MAY BE TRANSFERRED TO
A PERSON WHO TAKES DELIVERY IN THE FORM OF AN INTEREST IN THE
REGULATION S GLOBAL NOTE, WHETHER BEFORE OR AFTER THE EXPIRATION OF
THE 40-DAY DISTRIBUTION COMPLIANCE PERIOD, ONLY IF THE TRANSFEROR
FIRST DELIVERS TO THE TRUSTEE A WRITTEN CERTIFICATE (IN THE FORM
ATTACHED TO THIS CERTIFICATE) TO THE EFFECT THAT SUCH TRANSFER IS
BEING MADE IN ACCORDANCE WITH RULE 903 OR 904 OF REGULATION S OR RULE
144 (IF AVAILABLE).



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     Each Definitive Note shall also bear the following additional legend (the
“Definitive Note Legend”):




IN CONNECTION WITH ANY TRANSFER, THE HOLDER WILL DELIVER TO THE
REGISTRAR SUCH CERTIFICATES AND OTHER INFORMATION AS THE REGISTRAR MAY
REASONABLY REQUIRE TO CONFIRM THAT THE TRANSFER COMPLIES WITH THE
FOREGOING RESTRICTIONS.




     Each Note that has more than a de minimis amount of original
issue discount for U.S. federal income tax purposes, as determined by the Company,
shall bear a legend substantially in the following form on the face of such Note
(with any amendments thereto necessary to reflect changes in U.S. federal income
tax laws occurring after the Issue Date) (the “OID Legend”):




FOR THE PURPOSES OF SECTIONS 1272, 1273 AND 1275 OF THE INTERNAL
REVENUE CODE OF 1986, AS AMENDED, THIS NOTE IS BEING ISSUED WITH
ORIGINAL ISSUE DISCOUNT. YOU MAY CONTACT THE ISSUER AT 25505 W. TWELVE
MILE ROAD, SOUTHFIELD, MICHIGAN 48034, ATTENTION: INVESTOR RELATIONS,
AND THE ISSUER WILL PROVIDE YOU WITH THE ISSUE PRICE, THE AMOUNT OF
ORIGINAL ISSUE DISCOUNT, THE ISSUE DATE AND THE YIELD TO MATURITY OF
THIS NOTE.




     (ii) Upon any sale or transfer of a Transfer Restricted Note that is a
Definitive Note pursuant to Rule 144 under the Securities Act, the Registrar shall
permit the transferee thereof to exchange such Transfer Restricted Note for a
certificated Note that does not bear the legend set forth above and rescind any
restriction on the transfer of such Transfer Restricted Note, if the transferor
thereof certifies in writing to the Registrar that such sale or transfer was made
in reliance on Rule 144 (such certification to be in the form set forth on the
reverse of the Note).




     (iii) After a transfer of any Initial Notes or Private Exchange Notes
pursuant to and during the period of the effectiveness of a Shelf Registration
Statement with respect to such Initial Notes or Private Exchange Notes, as the case
may be, all requirements pertaining to legends on such Initial Note or such Private
Exchange Note will cease to apply, the requirements requiring any such Initial Note
or such Private Exchange Note issued to certain Holders be issued in global form
will cease to apply, and a certificated Initial Note or Private Exchange Note or an
Initial Note or Private Exchange Note in the form of an Unrestricted



A-14









 






Global Note, in each case without Restrictive Legends, will be available to
the transferee of the Holder of such Initial Notes or Private Exchange Notes upon
exchange of such transferring Holder’s certificated Initial Note or Private
Exchange Note or directions to transfer such Holder’s interest in the Global Note,
as applicable.




     (iv) Upon the consummation of a Registered Exchange Offer with respect to the
Initial Notes, all requirements pertaining to such Initial Notes that Initial Notes
issued to certain Holders be issued in global form will still apply with respect to
Holders of such Initial Notes that do not exchange their Initial Notes, and
Exchange Notes in certificated form or in the form of an Unrestricted Global Note,
in each case without the Restrictive Legends, will be available to Holders that
exchange such Initial Notes in such Registered Exchange Offer.




     (v) At the option of the Company and upon compliance with the following
procedures, the beneficial interests in a Restricted Global Note shall be exchanged
for beneficial interests in an Unrestricted Global Note, without the Restrictive
Legends. In order to effect such exchange, the Company shall provide written notice
to the Trustee instructing the Trustee to (i) direct the Depository to transfer the
specified amount of the outstanding beneficial interests in a particular Restricted
Global Note to an Unrestricted Global Note and provide the Depository with all such
information as is necessary for the Depository to appropriately credit and debit
the relevant Holder accounts and (ii) provide prior written notice to all Holders
of such exchange through the Depository or its nominee, which notice must include
the date such exchange is proposed to occur, the CUSIP number of the relevant
Restricted Global Note and the CUSIP number of the Unrestricted Global Note into
which such Holders’ beneficial interests will be exchanged. As a condition to any
such exchange pursuant to this Section 2.3(e)(v), the Trustee shall be entitled to
receive from the Company, and rely conclusively without any liability, upon an
Officers’ Certificate and an Opinion of Counsel to the effect that such transfer of
beneficial interests to the Unrestricted Global Note shall be effected in
compliance with the Securities Act. The Company may request from Holders, and
Holders shall promptly provide, such information the Company reasonably determines
is required in order to be able to deliver such Officers’ Certificate and Opinion
of Counsel. Upon such exchange of beneficial interests pursuant to this Section
2.3(e)(v), the Registrar shall endorse the “schedule of increases and decreases in
global note” to the relevant Global Notes and reflect on its books and records the
date of such transfer and a decrease and increase, respectively, in the principal
amount of the applicable Restricted Global Note(s) and Unrestricted Global Notes,
respectively, equal to the principal amount of beneficial interests transferred.
Following any such transfer pursuant to



A-15









 






this Section 2.3(e)(v) of all of the beneficial interests in a Restricted
Global Note, such Restricted Global Note shall be cancelled.




     (vi) Upon the consummation of a Private Exchange with respect to the Initial
Notes, all requirements pertaining to such Initial Notes that Initial Notes issued
to certain Holders be issued in global form will still apply with respect to
Holders of such Initial Notes that do not exchange their Initial Notes, and Private
Exchange Notes in global form with the applicable Restrictive Legends and other
applicable legends set forth in Section 2.3(e)(i) of this Appendix will be
available to Holders that exchange such Initial Notes in such Private Exchange.



          (f) Cancellation or Adjustment of Global Note. At such time as all beneficial
interests in a Global Note have either been exchanged for Definitive Notes, redeemed, purchased or
canceled, such Global Note shall be returned to the Depository for cancellation or retained and
canceled by the Trustee. At any time prior to such cancellation, if any beneficial interest in a
Global Note is exchanged for certificated Notes, redeemed, purchased or canceled, the principal
amount of Notes represented by such Global Note shall be reduced and an adjustment shall be made on
the books and records of the Trustee (if it is then the Notes Custodian for such Global Note) with
respect to such Global Note, by the Trustee or the Notes Custodian, to reflect such reduction.




(g) No Obligation of the Trustee.




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




     (ii) The Trustee shall have no obligation or duty to monitor, determine or
inquire as to compliance with any restrictions on transfer imposed under the
Indenture or under applicable law with respect to any transfer of




A-16











 






any interest in any Note (including any transfers between or among Depository
participants, members or beneficial owners in any Global Note) other than to
require delivery of such certificates and other documentation or evidence as are
expressly required by, and to do so if and when expressly required by, the terms of
the Indenture, and to examine the same to determine substantial compliance as to
form with the express requirements of the Indenture.



          2.4 Definitive Notes. (a) A Global Note deposited with the Depository or with the
Trustee as Notes Custodian for the Depository pursuant to Section 2.1 of this Appendix shall be
transferred to the beneficial owners thereof in the form of Definitive Notes in an aggregate
principal amount equal to the principal amount of such Global Note, in exchange for such Global
Note, only if such transfer complies with Section 2.3 of this Appendix and (i) the Depository
notifies the Company that it is unwilling or unable to continue as Depository for such Global Note
and the Depository fails to appoint a successor depository or if at any time such Depository ceases
to be a “clearing agency” registered under the Exchange Act, in either case, and a successor
depository is not appointed by the Company within 120 days of such notice, or (ii) the Depository
so requests and an Event of Default has occurred and is continuing or (iii) the Company, in its
sole discretion, notifies the Trustee in writing that it elects to cause the issuance of Definitive
Notes under the Indenture.




          (b) Any Global Note that is transferable to the beneficial owners thereof pursuant to this
Section 2.4 shall be surrendered by the Depository to the Trustee located at its principal
corporate trust office in the Borough of Manhattan, The City of New York, to be so transferred, in
whole or from time to time in part, without charge, and the Trustee shall authenticate and deliver,
upon such transfer of each portion of such Global Note, an equal aggregate principal amount of
Definitive Notes of authorized denominations. Any portion of a Global Note transferred pursuant to
this Section 2.4 shall be executed, authenticated and delivered only in denominations of $2,000
principal amount and any integral multiple of $1,000 in excess thereof and registered in such names
as the Depository shall direct. Any Definitive Note delivered in exchange for an interest in the
Transfer Restricted Note shall, except as otherwise provided by Section 2.3(e) of this Appendix,
bear the applicable Restrictive Legends and the Definitive Note Legend, unless the Company
determines otherwise in compliance with applicable law.




          (c) Subject to the provisions of Section 2.4(b) of this Appendix, the registered Holder of a
Global Note shall be entitled to grant proxies and otherwise authorize any Person, including Agent
Members and Persons that may hold interests through Agent Members, to take any action which a
Holder is entitled to take under this Indenture or the Notes.




          (d) In the event of the occurrence of one of the events specified in Section 2.4(a) of this
Appendix, the Company shall promptly make available to the Trustee a reasonable supply of
Definitive Notes in definitive, fully registered form




A-17









 







without interest coupons. In the event that
Definitive Notes are not issued to any owner of a beneficial
interest in a Global Note at a time at which such beneficial owner has a right to receive such
Definitive Notes pursuant to the Indenture, the Company expressly agrees and acknowledges that (1)
such beneficial owner shall have standing to pursue a remedy pursuant to the Indenture to compel
the issuance of such Definitive Notes to such beneficial owner and to compel the registration of
such Definitive Notes in the name of such beneficial owner in the register maintained by the
Registrar with respect to the Notes and (2) such beneficial owner shall be entitled, pending such
issuance and registration, to sue for payment (which payment shall only be made following such
issuance and registration) of the monetary obligation to be represented by such Definitive Notes.
The Company agrees that specific performance is an appropriate form for the remedy referenced in
clause (1) of the immediately-preceding sentence and shall not object to such form of such remedy.











A-18









 








EXHIBIT I

to

RULE 144A/REGULATION S APPENDIX

to the Indenture, dated as of February 1, 2010,

among Credit Acceptance Corporation, a Michigan

corporation, the Guarantors (as defined therein) listed

on the signature pages thereto and U.S. Bank National Association,

a national banking association, as trustee




[FORM OF FACE OF INITIAL NOTE]



FOR THE PURPOSES OF SECTIONS 1272, 1273 AND 1275 OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED,
THIS NOTE IS BEING ISSUED WITH ORIGINAL ISSUE DISCOUNT. YOU MAY CONTACT THE ISSUER AT 25505 W.
TWELVE MILE ROAD, SOUTHFIELD, MICHIGAN 48034, ATTENTION: INVESTOR RELATIONS, AND THE ISSUER WILL
PROVIDE YOU WITH THE ISSUE PRICE, THE AMOUNT OF ORIGINAL ISSUE DISCOUNT, THE ISSUE DATE AND THE
YIELD TO MATURITY OF THIS NOTE.



[Insert the Global Note Legend, if applicable]



[Insert the Regulation S Global Note Legend, if applicable]



[Insert the Restricted Note Legend, if applicable]



[Insert the Regulation S Legend, if applicable]



[Insert the Temporary Regulation S Global Note Legend, if applicable]



[Insert the Definitive Note Legend, if applicable]











 









 








			
	 
	 	CUSIP No.                     
	 
	 	ISIN                                         
	 	 	 
	No.___
	 	$___






9.125% First Priority Senior Secured Notes due 2017




          Credit Acceptance Corporation, a Michigan corporation, promises to pay to
                                        , or registered assigns, the principal sum of                                
          Dollars (as such
sum may be increased or decreased as reflected on the Schedule of Increases and Decreases in Global
Note attached hereto) on February 1, 2017.




          Interest Payment Dates: February 1 and August 1.




          Record Dates: January 15 and July 15.




          Additional provisions of this Note are set forth on the other side of this Note.







I-2









 







Dated:




	 	 	 	 	 
	CREDIT ACCEPTANCE CORPORATION
	by
	 	 	 	 
	 

	 	 	 	 
	 

	 	Name:	 	 
	 

	 	Title:	 	 






I-3









 






	 	 	 	 	 
	TRUSTEE’S CERTIFICATE OF

AUTHENTICATION
	 
	 	 	 	 
	U.S. BANK NATIONAL ASSOCIATION,

as Trustee, certifies that this is one of

the Notes referred to in the Indenture.
	 
	 	 	 	 
	by
	 	 	 	 
	 

	 	 	 	 
	 

	 	Authorized Signatory	 	 






I-4









 






[FORM OF REVERSE SIDE OF INITIAL NOTE]




9.125% First Priority Senior Secured Note due 2017



1. Interest




     Credit Acceptance Corporation, a Michigan corporation (such corporation, and its successors
and assigns under the Indenture hereinafter referred to, being herein called the
"Company”), promises to pay interest on the principal amount of this Note at the rate per
annum shown above[; provided, however, that if a Registration Default (as defined
in the Applicable Registration Rights Agreement (as defined in paragraph 20 of this Note)) occurs,
additional interest will accrue on this Note at a rate of 0.25% per annum (increasing by an
additional 0.25% per annum after each consecutive 90-day period that occurs after the date on which
such Registration Default occurs up to a maximum additional interest rate of 1.00%) from and
including the date on which any such Registration Default shall occur to but excluding the date on
which all Registration Defaults have been cured. Within a reasonable amount of time following the
occurrence of a Registration Default, the Company will provide notice to the Trustee of such
Registration Default]1. The Company will pay interest on the Notes semiannually in
arrears on February 1 and August 1 of each year, commencing August 1, 2010. Interest on the Notes
will accrue from the most recent date to which interest has been paid or, if no interest has been
paid, from the February 1 or August 1 (whichever is more recent) next preceding the interest
payment date (or, in the case of any Additional Notes as to which no interest has been paid, from
the date of issuance of such Additional Notes). Interest will be computed on the basis of a
360-day year of twelve 30-day months. The Company will pay interest on overdue principal at the
rate borne by this Note, and it will pay interest on overdue installments of interest at the same
rate to the extent lawful.


2. Method of Payment




     The Company will pay interest on the Notes (except defaulted interest) to the Persons who are
registered holders of Notes at the close of business on the January 15 or August 15 next preceding
the interest payment date even if Notes are canceled after the record date and on or before the
interest payment date. Holders must surrender Notes to a Paying Agent to collect principal
payments. The Company will pay principal, premium, if any, and interest on the Notes in money of
the United States that at the time of payment is legal tender for payment of public and private
debts. Principal, premium, if any, and interest on the Notes will be payable at the office or
agency of the Company maintained for such purpose within the City and State of New York or, at the
option of





 




			
	1	 	To be included only if there is a Registration
Rights Agreement (as defined in the Appendix) applicable to this Note and
subject to modification as necessary to reflect the terms of such Registration
Rights Agreement, if any.




I-5









 









the Company, payment of interest may be made by check mailed to the Holders of the Notes at
their respective addresses set forth in the register of Holders of Notes; provided,
however, that all payments of principal, premium and interest with respect to Notes the
Holders of which have given wire transfer instructions to the Company will be required to be made
by wire transfer of immediately available funds to the accounts specified by the Holders thereof.
Until otherwise designated by the Company, the Company’s office or agency in the City and State of
New York will be the office of the Trustee maintained for such purpose, which shall initially be
100 Wall Street, Suite 1600, New York, NY 10005, Attention: Corporate Trust Department. Payments
in respect of the Notes represented by a Global Note (including principal, premium, if any, and
interest) will be made by wire transfer of immediately available funds to the accounts specified by
the Depository. The Company will make all payments in respect of a certificated Note (including
principal, premium and interest) by mailing a check to the registered address of each Holder
thereof; provided, however, that payments on a certificated Note will be made by
wire transfer to a U.S. dollar account maintained by the payee with a bank in the United States if
such Holder elects payment by wire transfer by giving written notice to the Trustee or the Paying
Agent to such effect designating such account no later than 30 days immediately preceding the
relevant due date for payment (or such other date as the Trustee may accept in its discretion).



3. Paying Agent and Registrar




     Initially, the Trustee shall act as Paying Agent and Registrar. The Company may appoint and
change any Paying Agent or Registrar without notice. The Company or any Wholly-Owned Restricted
Subsidiary of the Company incorporated or organized within the United States of America may act as
Paying Agent or Registrar.


4. Indenture, Security Documents and Intercreditor Agreement




     The Company issued the Notes under an Indenture dated as of February 1, 2010 (the
"Indenture”), among the Company, the Guarantors and the Trustee. The terms of the Notes
include those stated in the Indenture and those made part of the Indenture by reference to the
Trust Indenture Act of 1939 (15 U.S.C. §§ 77aaa-77bbbb) (the “Act”). Terms defined
in the Indenture and not defined herein have the meanings ascribed thereto in the Indenture. The
Notes are subject to all such terms, and Holders are referred to the Indenture and the Act for a
statement of those terms. To the extent any provision of this Note conflicts with the express
provisions of the Indenture (including those made part of the Indenture by reference to the Act, if
any), the provisions of the Indenture shall govern and be controlling.



     The Company shall be entitled, subject to its compliance with Sections 4.03 and 4.10 of the
Indenture, to issue Additional Notes pursuant to Section 2.13 of the Indenture. The Initial Notes
issued on the Issue Date and any Additional Notes, Exchange Notes, Private Exchange Notes and
Replacement Notes will be treated as a single class for all purposes under the Indenture. The
Indenture contains covenants (i) that impose certain limitations on the ability of the Company and
the Restricted Subsidiaries to, among other



I-6









 




things, incur or guarantee additional indebtedness; pay dividends or distributions on, or
redeem or repurchase, capital stock; make investments; engage in transactions with Affiliates;
create liens on assets; transfer or sell assets; guarantee indebtedness; and restrict dividends or
other payments of subsidiaries; (ii) that impose certain limitations on the ability of the Company
and each Guarantor to consolidate, merge or transfer all or substantially all of its assets; and
(iii) that require the Company to maintain certain financial ratios. These covenants are subject
to important exceptions and qualifications.




     To secure the due and punctual payment of the obligations of the Company and the Guarantors
under this Indenture and the Notes and the Notes Guarantees, the Company, the Guarantors, the
Collateral Agent and the Trustee have entered into the Security Documents providing for the
creation of specified security interests and related matters. Each Holder, by accepting a Note,
agrees to all of the terms and provisions of the Security Documents and the Intercreditor
Agreement, as the same may be amended from time to time pursuant to the provisions of the Security
Documents, the Intercreditor Agreement and the Indenture, and authorizes and directs the Trustee
and the Collateral Agent to perform their respective obligations and exercise their respective
rights under the Security Documents and the Intercreditor Agreement in accordance therewith;
provided, however, that if any provisions of the Security Documents or the
Intercreditor Agreement limit, qualify or conflict with the duties imposed by the provisions of the
TIA, the TIA (other than TIA § 314(d) and TIA § 314(b) (which shall not be applicable to this
Indenture unless it is qualified under the TIA)) will control. Notwithstanding anything to the
contrary in the Indenture, no security interest or Lien is granted by the provisions of the
Indenture, the Notes or the Notes Guarantees.


5. Optional Redemption




     At any time and from time to time prior to February 1, 2014, the Notes may be redeemed at the
Company’s option, in whole or in part, at a redemption price equal to 100.0% of the principal
amount of the Notes redeemed, plus accrued and unpaid interest thereon, if any, to but excluding
the applicable Redemption Date, subject to the rights of Holders of Notes on the relevant record
date to receive interest due on the relevant interest payment date, plus the Applicable Premium as
of the applicable Redemption Date.



     On and after February 1, 2014, the Notes may be redeemed, at the Company’s option, in whole or
in part, at any time and from time to time, at the redemption prices set forth below. The Notes
shall be redeemable at the redemption prices (expressed as percentages of principal amount of the
Notes to be redeemed) set forth below plus accrued and unpaid interest thereon, if any, to but
excluding the applicable Redemption Date, subject to the right of Holders of Notes on the relevant
record date to receive interest due on the relevant interest payment date, if redeemed during the
12-month period beginning on February 1 of each of the years indicated below:



I-7









 





	 	 	 	 	 
	Year	 	Percentage
	2014
	 	 	104.563	%
	2015
	 	 	102.281	%
	2016 and thereafter
	 	 	100.000	%






     In addition, at any time on or prior to February 1, 2013, the Company may on any one or more
occasions redeem up to an aggregate of 35.0% of the aggregate principal amount of the Notes at a
redemption price of 109.125% of the principal amount of the Notes redeemed, plus accrued and unpaid
interest thereon, if any, to but excluding the applicable Redemption Date, subject to the rights of
Holders of Notes on the relevant record date to receive interest due on the relevant interest
payment date, with the Net Cash Proceeds of a public offering of common stock of the Company;
provided, however, that at least 65.0% in aggregate principal amount of the Notes remains
outstanding immediately after the occurrence of such redemption and that such redemption shall
occur within 90 days of the date of the closing of such public offering.



     If the Redemption Date with respect to a Note to be redeemed is on or after an interest record
date and on or before the related interest payment date, any accrued and unpaid interest on that
Note shall be payable to the Person that was, at the close of business on such record date, the
Holder of that Note, and no additional interest for the period to which that interest record date
relates shall be payable with respect to that Note.


6. Notice of Redemption




     Notice of redemption will be mailed at least 30 days but not more than 60 days before the
applicable Redemption Date to each Holder of Notes to be redeemed at his registered address. No
Notes of $2,000 or less shall be redeemed in part. Notes in denominations larger than $2,000
principal amount may be redeemed in part, but only in whole multiples of $1,000. Notes called for
redemption become due on the applicable Redemption Date. On and after the applicable Redemption
Date, interest ceases to accrue on Notes or portions of them called for redemption.


7. Repurchase of Notes at the Option of the Holders upon Change of Control and Asset
Sales




     Upon a Change of Control, any Holder of Notes will have the right to cause the Company to
repurchase all or any part (equal to $2,000 or an integral multiple of $1,000 in excess thereof) of
the Notes of such Holder at a repurchase price equal to 101.0% of the principal amount of the Notes
to be repurchased plus accrued and unpaid interest to but excluding the date of repurchase (subject
to the right of holders of record on the relevant record date to receive interest due on the
related interest payment date) as provided in, and subject to the terms of, the Indenture.



I-8









 





     In accordance with Section 4.06 of the Indenture, the Company will be required to offer to
purchase Notes upon the occurrence of certain events.


8. Guarantee




     The payment by the Company of the principal of, and premium and interest on, the Notes is
fully and unconditionally guaranteed on a joint and several senior secured basis by each of the
Guarantors to the extent set forth in the Indenture.


9. Denominations; Transfer; Exchange




     The Notes are in registered form without coupons in denominations of $2,000 principal amount
and whole multiples of $1,000 in excess thereof. A Holder may transfer or exchange Notes in
accordance with the Indenture. The Registrar may require a Holder to, among other things, furnish
appropriate endorsements or transfer documents and to pay any taxes and fees required by law or
permitted by the Indenture. The Company shall not be required to transfer or exchange, and the
Registrar need not register the transfer or exchange, of any Note selected for redemption (except,
in the case of a Note to be redeemed in part, the portion of the Note not to be redeemed) or any
Note for a period of 15 days before a selection of Notes to be redeemed or 15 days before an
interest payment date.


10. Persons Deemed Owners




     The registered Holder of this Note shall be treated as the owner of it for all purposes.


11. Unclaimed Money




     If money for the payment of principal or interest remains unclaimed for two years, the Trustee
or Paying Agent shall pay the money back to the Company at its request unless an abandoned property
law designates another Person. After any such payment, Holders entitled to the money must look
only to the Company and not to the Trustee for payment.


12. Discharge and Defeasance




     Subject to certain conditions, the Company at any time shall be entitled to terminate some or
all of its obligations under the Notes and the Indenture if the Company deposits with the Trustee
money or Government Securities for the payment of principal and interest on the Notes to redemption
or maturity, as the case may be.


13. Amendment, Waiver




     Subject to certain exceptions set forth in the Indenture, (a) the Indenture, the Security
Documents, the Intercreditor Agreement and the Notes may be amended or supplemented (and waivers
granted with respect to any provisions thereof) with the



I-9









 




written consent of the Holders of a majority in principal amount of the Notes then outstanding
and (b) any default or noncompliance with any provision thereof may be waived with the written
consent of the Holders of a majority in principal amount of the Notes then outstanding. Subject to
certain exceptions set forth in the Indenture, without the consent of any Holder, the Company, the
Guarantors and the Trustee may amend or supplement the Indenture, the Notes, any Security Document
or the Intercreditor Agreement to cure any ambiguity, omission, defect or inconsistency; to provide
for uncertificated Notes in addition to or in place of certificated Notes (provided that the
uncertificated Notes are issued in registered form for purposes of Section 163(f) of the Code); to
provide for the assumption by a successor corporation of the obligations of the Company or a
Guarantor to Holders under the Indenture in the case of a merger or consolidation; to make any
change that would provide any additional rights or benefits to the Holders of Notes or that does
not adversely affect the legal rights under the Indenture of any such Holder; to comply with
requirements of the SEC in order to effect or maintain the qualification of this Indenture under
the Trust Indenture Act; to evidence and provide for the acceptance of appointment under the
Indenture of a successor trustee; to add one or more Guarantors under this Indenture; to add any
additional assets to the Collateral; to release Collateral from the Lien of the Security Documents
when permitted or required by this Indenture and the Security Documents; to conform the text of
this Indenture, the Notes or any Guarantee to any provision of the section of the Offering Circular
entitled “Description of Notes” to the extent that such provision in the section of the Offering
Circular entitled “Description of Notes” was intended to be a verbatim recitation of a provision of
the Indenture, the Notes or such Guarantee; as necessary to conform the Indenture to any exemptive
orders under the Trust Indenture Act received by the Company or any Guarantor; or to make any
amendment to the provisions of the Indenture relating to the transfer and legending of Notes;
provided, however, that (1) compliance with the Indenture as so amended would not result in Notes
being transferred in violation of the Securities Act or any other applicable securities law and (2)
such amendment does not materially and adversely affect the rights of Holders to transfer Notes.



14. Defaults and Remedies




     Under the Indenture and subject to the terms of the Indenture, Events of Default include: (i)
default in the payment when due of interest on the Notes, which default continues for 30
consecutive days; (ii) default in payment of the principal of or premium, if any, on the Notes when
due, at Stated Maturity, upon optional redemption, upon required repurchase or otherwise; (iii)
failure by the Company to comply with other agreements in the Indenture or the Notes, in certain
cases subject to notice or lapse of time; (iv) certain accelerations (including failure to pay
within any grace period after final maturity) of other Indebtedness of the Company if the amount
accelerated (or so unpaid) exceeds $25 million; (v) certain judgments or decrees for the payment of
money in excess of $25 million; (vi) certain defaults with respect to the Notes Guarantees; (vii)
certain events of bankruptcy or insolvency with respect to the Company or any of its Significant
Subsidiaries or any group of Subsidiaries that, taken together, would constitute a Significant
Subsidiary and (viii) certain defaults relating to the Collateral




I-10











 




under the Security Documents. If an Event of Default occurs and is continuing, the Trustee or
the Holders of at least 25% in principal amount of the Notes may declare all the Notes to be due
and payable immediately. Certain events of bankruptcy or insolvency are Events of Default which
will result in the Notes being due and payable immediately upon the occurrence of such Events of
Default.




     Holders may not enforce the Indenture or the Notes except as provided in the Indenture. The
Trustee may refuse to enforce the Indenture or the Notes unless it receives indemnity or security
satisfactory to it. Subject to certain limitations, Holders of a majority in principal amount of
the Notes may direct the Trustee in its exercise of any trust or power. The Trustee may withhold
from Holders notice of any continuing Default (except a Default in payment of principal or
interest) if it determines that withholding notice is in the interest of the Holders.



15. Trustee Dealings with the Company




     Subject to certain limitations imposed by the Act and the Indenture, the Trustee, in its
individual or any other capacity, may become the owner or pledgee of Notes and may become a
creditor of, or otherwise deal with, the Company or its Affiliates with the same rights it would
have if it were not Trustee.



16. No Recourse Against Others




     No director, officer, employee, incorporator or shareholder of the Company, and no director,
trustee, officer, employee, incorporator or shareholder (other than the Company or a Restricted
Subsidiary) of any Subsidiary of the Company, as such, shall have any liability for any obligations
of the Company or any Guarantor under the Notes, the Indenture, any Notes Guarantee [, the
Applicable Registration Rights Agreement (as defined in paragraph 20 of this Note)] 2 or
the Security Documents or for any claim based on, in respect of or by reason of such obligations or
their creation. By accepting a Note, each Holder shall waive and release all such liability. This
waiver and release shall be part of the consideration for the issue of the Notes.



17. Authentication




     This Note shall not be valid until an authorized signatory of the Trustee (or an
authenticating agent) manually signs the certificate of authentication on the other side of this
Note.





 




			
	2	 	To be included only if there is a Registration
Rights Agreement (as defined in the Appendix) applicable to this Note.




I-11









 










18. Abbreviations




     Customary abbreviations may be used in the name of a Holder or an assignee, such as TEN COM
(=tenants in common), TEN ENT (=tenants by the entireties), JT TEN (=joint tenants with rights of
survivorship and not as tenants in common), CUST (=custodian), and U/G/M/A (=Uniform Gift to Minors
Act).



19. CUSIP Numbers, ISINs etc.




     The Company has caused [CUSIP numbers and ISINs [and Common Code numbers]] to be printed on
the Notes, and the Trustee may use [CUSIP numbers and ISINs [and Common Code numbers]] in notices
of redemption as a convenience to Holders. No representation is made as to the accuracy of such
numbers, either as printed on the Notes or as contained in any notice of redemption, and reliance
may be placed only on the other identification numbers placed thereon.



20. [Holders’ Compliance with Registration Rights Agreement.




     Each Holder of a Note, by acceptance hereof, acknowledges and agrees to the provisions of the
[Registration Rights Agreement]3 (the “Applicable Registration Rights
Agreement”), including the obligations of the Holders with respect to a registration and the
indemnification of the Company to the extent provided therein.]4



21. Governing Law.




     THIS SECURITY SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF
NEW YORK, WITHOUT GIVING EFFECT TO APPLICABLE PRINCIPLES OF CONFLICTS OF LAW TO THE EXTENT THAT THE
APPLICATION OF THE LAW OF ANOTHER JURISDICTION WOULD BE REQUIRED THEREBY.



     The Company will furnish to any Holder upon written request and without charge to the Holder a
copy of the Indenture which has in it the text of this Note in larger type. Requests may be made
to:





 




			
	3	 	Specify the applicable Registration Rights
Agreement, including parties thereto and date thereof.
	 
	4	 	To be included only if there is a Registration
Rights Agreement (as defined in the Appendix) applicable to this Note. If no
Registration Rights Agreement applies, replace with “[RESERVED.]”.




I-12









 









Credit Acceptance Corporation

25505 W. Twelve Mile Road

Southfield, Michigan 48034

Attention: Treasurer







I-13









 








ASSIGNMENT FORM



To assign this Note, fill in the form below:



I or we assign and transfer this Note to




     (Print or type assignee’s name, address and zip code)



     (Insert assignee’s soc. sec. or tax I.D. No.)


and irrevocably appoint agent to transfer this Note on the books of the Company. The agent
may substitute another to act for him.




	 	 	 	 	 	 	 	 	 	 	 
	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 
	 

	 	Date:
	 	                                                                 
	 	 	 	Your Signature:
	 	                                                                              
  
	 
	 	 	 	 	 	 	 	 	 	 
	 	 	 




Sign exactly as your name appears on the other side of this Note.



In connection with any transfer of any of the Notes evidenced by this certificate occurring prior
to the expiration of the applicable period referred to in Rule 144(d) under the Securities Act
after the later of the date of original issuance of such Notes and the last date, if any, on which
such Notes were owned by the Company or any Affiliate of the Company, the undersigned confirms that
such Notes are being transferred in accordance with its terms:



CHECK ONE BOX BELOW





	 	 	o to the Company; or






	 	 	(1)	 	o pursuant to an effective registration statement under the Securities
Act of 1933; or
	 
	 	 	(2)	 	o inside the United States to a “qualified institutional buyer” (as
defined in Rule 144A under the Securities Act of 1933) that purchases for its own
account or for the account of a qualified institutional buyer to whom notice is given
that such transfer is being made in reliance on Rule 144A, in each case pursuant to
and in compliance with Rule 144A under the Securities Act of 1933; or
	 
	 	 	(3)	 	o outside the United States in an offshore transaction within the
meaning of Regulation S under the Securities Act in compliance with Rule 904 under the
Securities Act of 1933; or
	 
	 	 	(4)	 	o pursuant to the exemption from registration provided by Rule 144
under the Securities Act of 1933; or




I-14









 






	 	 	(5)	 	o to an institutional “accredited investor” (as defined in Rule
501(a)(1), (2), (3) or (7) under the Securities Act of 1933) that has furnished to the
Trustee a signed letter containing certain representations and agreements.






Unless one of the boxes is checked, the Trustee will refuse to register any of the Notes
evidenced by this certificate in the name of any person other than the registered holder
thereof; provided, however, that if box (4) is checked, the Trustee shall
be entitled to require, prior to registering any such transfer of the Notes, such legal
opinions, certifications and other information as the Company has reasonably requested to
confirm that such transfer is being made pursuant to an exemption from, or in a transaction
not subject to, the registration requirements of the Securities Act of 1933, such as the
exemption provided by Rule 144 under such Act.



           





          Signature


Signature Guarantee:




	 	 	 	 
	
 	 	
 
	 	
Signature must be guaranteed Signature	 	
Signature





     Signatures must be guaranteed by an “eligible guarantor institution” meeting the requirements
of the Registrar, which requirements include membership or participation in the Security Transfer
Agent Medallion Program (“STAMP”) or such other “signature guarantee program” as may be determined
by the Registrar in addition to, or in substitution for, STAMP, all in accordance with the Notes
Exchange Act of 1934, as amended.



     TO BE COMPLETED BY PURCHASER IF (2) ABOVE IS CHECKED.



          The undersigned represents and warrants that it is purchasing this Note for its own account or
an account with respect to which it exercises sole investment discretion and that it and any such
account is a “qualified institutional buyer” within the meaning of Rule 144A under the Securities
Act of 1933, and is aware that the sale to it is being made in reliance on Rule 144A and
acknowledges that it has received such information regarding the Company as the undersigned has
requested pursuant to Rule 144A or has determined not to request such information and that it is
aware that the transferor is relying upon the undersigned’s foregoing representations in order to
claim the exemption from registration provided by Rule 144A.



	 	 	 	 	 	 	 	 	 	 	 
	 	 	Dated:	 	 	 	 	 	 
	 

	 	 	 	 	 	 	 	Notice:
	 	To be executed by

an executive officer






I-15









 






[TO BE ATTACHED TO GLOBAL NOTES]




SCHEDULE
OF INCREASES AND DECREASES IN GLOBAL NOTE


The following increases or decreases in this Global Note have been made:



	 	 	 	 	 	 	 	 	 
	Date of
exchange

	 	Amount of decrease
in

 principal amount
of this

 Global Note
	 	Amount of increase
in

 principal amount
of this

 Global Note
	 	Principal amount of
this

 Global Note
following such 

decrease or
increase
	 	Signature of
authorized

 officer
of Trustee or Notes


Custodian
	 	 	 	 	 	 	 	 	 





I-16









 






OPTION OF HOLDER TO ELECT PURCHASE




          If you want to elect to have this Note purchased by the Company pursuant to Section 4.06 or
4.09 of the Indenture, check the box: o



          If you want to elect to have only part of this Note purchased by the Company pursuant to
Section 4.06 or 4.09 of the Indenture, state the amount in principal amount: $                                        



	 	 	 	 	 	 	 	 	 	 	 
	 

	 	Dated:
	 	 	 	 	 	Your Signature:	 	 
	 

	 	 	 	 
	 	 	 	 	 	 
	 

	 	 	 	 	 	 	 	 	 	(Sign exactly as your name appears

on the other side of this Note.)






	 	 	 	 	 
	 

	 	Signature Guarantee:	 	 
	 

	 	 	 	 
	 

	 	 	 	(Signature must be guaranteed)






     Signatures must be guaranteed by an “eligible guarantor institution” meeting the
requirements of the Registrar, which requirements include membership or participation in the
Security Transfer Agent Medallion Program (“STAMP”) or such other “signature guarantee program” as
may be determined by the Registrar in addition to, or in substitution for, STAMP, all in accordance
with the Notes Exchange Act of 1934, as amended.




I-17











 





EXHIBIT II

to

RULE 144A/REGULATION S APPENDIX

to the Indenture, dated as of February 1, 2010,

among Credit Acceptance Corporation, a Michigan

corporation, the Guarantors (as defined therein) listed

on the signature pages thereto and U.S. Bank National Association,

a national banking association, as trustee (the “Indenture”)




[FORM OF FACE OF [EXCHANGE] NOTE

[OR PRIVATE EXCHANGE NOTE][OR REPLACEMENT NOTE]]*



FOR THE PURPOSES OF SECTIONS 1272, 1273 AND 1275 OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED,
THIS NOTE IS BEING ISSUED WITH ORIGINAL ISSUE DISCOUNT. YOU MAY CONTACT THE ISSUER AT 25505 W.
TWELVE MILE ROAD, SOUTHFIELD, MICHIGAN 48034, ATTENTION: INVESTOR RELATIONS, AND THE ISSUER WILL
PROVIDE YOU WITH THE ISSUE PRICE, THE AMOUNT OF ORIGINAL ISSUE DISCOUNT, THE ISSUE DATE AND THE
YIELD TO MATURITY OF THIS NOTE.





	*	 	[If the Note is to be issued in global form, insert the Global Note Legend and include
the attachment from Exhibit I to the Appendix (as defined in the Indenture) captioned “[TO BE
ATTACHED TO GLOBAL NOTES — SCHEDULE OF INCREASES AND DECREASES IN GLOBAL NOTE].” If the Note
is a Private Exchange Note issued in a Private Exchange to an Initial Purchaser holding an
unsold portion of its initial allotment, insert the applicable Restrictive Legends and replace
the Assignment Form included in this Exhibit II with the Assignment Form included in such
Exhibit I.]




 









 











CUSIP No.                     

ISIN                       
                       
               




	 	 	 
	No.     

	 	$     






          9.125% First Priority Senior Secured Notes due 2017




          Credit Acceptance Corporation, a Michigan corporation, promises to pay to
                    , or registered assigns, the principal sum of                      Dollars (as such
sum may be increased or decreased as reflected on the Schedule of Increases and Decreases in Global
Note attached hereto) on February 1, 2017.




          Interest Payment Dates: February 1 and August 1.




          Record Dates: January 15 and July 15.




          Additional provisions of this Note are set forth on the other side of this
Note.







II-2









 







Dated:




	 	 	 	 	 	 	 
	CREDIT ACCEPTANCE CORPORATION
	by
	 	 	 	 	 	 
	 

	 	 

Name:
	 	 	 	 
	 

	 	Title:	 	 	 	 






II-3









 






TRUSTEE’S CERTIFICATE OF

AUTHENTICATION




	 	 	 	 	 
	U.S. BANK NATIONAL ASSOCIATION,

     as Trustee, certifies that this is one of the Notes

     referred to in the Indenture.	 	 
	 
	 	 	 	 
	by
	 	 	 	 
	 

	 	 	 	 
	 

	 	Authorized Signatory	 	 







II-4












 





[FORM OF REVERSE SIDE OF [EXCHANGE] NOTE

[OR PRIVATE EXCHANGE NOTE]]




9.125% First Priority Senior Secured Note due 2017


1. Interest




     Credit Acceptance Corporation, a Michigan corporation (such corporation, and its successors
and assigns under the Indenture hereinafter referred to, being herein called the
“Company”), promises to pay interest on the principal amount of this Note at the rate per
annum shown above[; provided, however, that if a Registration Default (as defined
in the Applicable Registration Rights Agreement (as defined in paragraph 20 of this Note)) occurs,
additional interest will accrue on this Note at a rate of 0.25% per annum (increasing by an
additional 0.25% per annum after each consecutive 90-day period that occurs after the date on which
such Registration Default occurs up to a maximum additional interest rate of 1.00%) from and
including the date on which any such Registration Default shall occur to but excluding the date on
which all Registration Defaults have been cured. Within a reasonable amount of time following the
occurrence of a Registration Default, the Company will provide notice to the Trustee of such
Registration Default]5. The Company will pay interest on the Notes semiannually in
arrears on February 1 and August 1 of each year, commencing August 1, 2010. Interest on the Notes
will accrue from the most recent date to which interest has been paid or, if no interest has been
paid, from the February 1 or August 1 (whichever is more recent) next preceding the interest
payment date (or, in the case of any Additional Notes as to which no interest has been paid, from
the date of issuance of such Additional Notes). Interest will be computed on the basis of a
360-day year of twelve 30-day months. The Company will pay interest on overdue principal at the
rate borne by this Note, and it will pay interest on overdue installments of interest at the same
rate to the extent lawful.


2. Method of Payment




     The Company will pay interest on the Notes (except defaulted interest) to the Persons who are
registered holders of Notes at the close of business on the January 15 or August 15 next preceding
the interest payment date even if Notes are canceled after the record date and on or before the
interest payment date. Holders must surrender Notes to a Paying Agent to collect principal
payments. The Company will pay principal, premium, if any, and interest on the Notes in money of
the United States that at the time of payment is legal tender for payment of public and private
debts. Principal, premium, if





 




			
	5	 	To be included only if there is a Registration
Rights Agreement (as defined in the Appendix) applicable to this Note and
subject to modification as necessary to reflect the terms of such Registration
Rights Agreement, if any.




II-5









 









any, and interest on the Notes will be payable at the office or agency of the Company
maintained for such purpose within the City and State of New York or, at the option of the Company,
payment of interest may be made by check mailed to the Holders of the Notes at their respective
addresses set forth in the register of Holders of Notes; provided, however, that
all payments of principal, premium and interest with respect to Notes the Holders of which have
given wire transfer instructions to the Company will be required to be made by wire transfer of
immediately available funds to the accounts specified by the Holders thereof. Until otherwise
designated by the Company, the Company’s office or agency in the City and State of New York will be
the office of the Trustee maintained for such purpose, which shall initially be 100 Wall Street,
Suite 1600, New York, NY 10005, Attention: Corporate Trust Department. Payments in respect of the
Notes represented by a Global Note (including principal, premium, if any, and interest) will be
made by wire transfer of immediately available funds to the accounts specified by the Depository.
The Company will make all payments in respect of a certificated Note (including principal, premium
and interest) by mailing a check to the registered address of each Holder thereof;
provided, however, that payments on a certificated Note will be made by wire
transfer to a U.S. dollar account maintained by the payee with a bank in the United States if such
Holder elects payment by wire transfer by giving written notice to the Trustee or the Paying Agent
to such effect designating such account no later than 30 days immediately preceding the relevant
due date for payment (or such other date as the Trustee may accept in its discretion).



3. Paying Agent and Registrar




     Initially, the Trustee shall act as Paying Agent and Registrar. The Company may appoint and
change any Paying Agent or Registrar without notice. The Company or any Wholly-Owned Restricted
Subsidiary of the Company incorporated or organized within the United States of America may act as
Paying Agent or Registrar.


4. Indenture, Security Documents and Intercreditor Agreement




     The Company issued the Notes under an Indenture dated as of February 1, 2010 (the
“Indenture”), among the Company, the Guarantors and the Trustee. The terms of the Notes
include those stated in the Indenture and those made part of the Indenture by reference to the
Trust Indenture Act of 1939 (15 U.S.C. §§ 77aaa-77bbbb) (the “Act”). Terms defined
in the Indenture and not defined herein have the meanings ascribed thereto in the Indenture. The
Notes are subject to all such terms, and Holders are referred to the Indenture and the Act for a
statement of those terms. To the extent any provision of this Note conflicts with the express
provisions of the Indenture (including those made part of the Indenture by reference to the Act, if
any), the provisions of the Indenture shall govern and be controlling.



     The Company shall be entitled, subject to its compliance with Sections 4.03 and 4.10 of the
Indenture, to issue Additional Notes pursuant to Section 2.13 of the Indenture. The Initial Notes
issued on the Issue Date and any Additional Notes, Exchange Notes,



II-6









 




Private Exchange Notes and Replacement Notes will be treated as a single class for all
purposes under the Indenture. The Indenture contains covenants (i) that impose certain limitations
on the ability of the Company and the Restricted Subsidiaries to, among other things, incur or
guarantee additional indebtedness; pay dividends or distributions on, or redeem or repurchase,
capital stock; make investments; engage in transactions with Affiliates; create liens on assets;
transfer or sell assets; guarantee indebtedness; and restrict dividends or other payments of
subsidiaries; (ii) that impose certain limitations on the ability of the Company and each Guarantor
to consolidate, merge or transfer all or substantially all of its assets; and (iii) that require
the Company to maintain certain financial ratios. These covenants are subject to important
exceptions and qualifications.




     To secure the due and punctual payment of the obligations of the Company and the Guarantors
under this Indenture and the Notes and the Notes Guarantees, the Company, the Guarantors, the
Collateral Agent and the Trustee have entered into the Security Documents providing for the
creation of specified security interests and related matters. Each Holder, by accepting a Note,
agrees to all of the terms and provisions of the Security Documents and the Intercreditor
Agreement, as the same may be amended from time to time pursuant to the provisions of the Security
Documents, the Intercreditor Agreement and the Indenture, and authorizes and directs the Trustee
and the Collateral Agent to perform their respective obligations and exercise their respective
rights under the Security Documents and the Intercreditor Agreement in accordance therewith;
provided, however, that if any provisions of the Security Documents or the
Intercreditor Agreement limit, qualify or conflict with the duties imposed by the provisions of the
TIA, the TIA (other than TIA § 314(d) and TIA § 314(b) (which shall not be applicable to this
Indenture unless it is qualified under the TIA)) will control. Notwithstanding anything to the
contrary in the Indenture, no security interest or Lien is granted by the provisions of the
Indenture, the Notes or the Notes Guarantees.


5. Optional Redemption




     At any time and from time to time prior to February 1, 2014, the Notes may be redeemed at the
Company’s option, in whole or in part, at a redemption price equal to 100.0% of the principal
amount of the Notes redeemed, plus accrued and unpaid interest thereon, if any, to but excluding
the applicable Redemption Date, subject to the rights of Holders of Notes on the relevant record
date to receive interest due on the relevant interest payment date, plus the Applicable Premium as
of the applicable Redemption Date.



     On and after February 1, 2014, the Notes may be redeemed, at the Company’s option, in whole or
in part, at any time and from time to time, at the redemption prices set forth below. The Notes
shall be redeemable at the redemption prices (expressed as percentages of principal amount of the
Notes to be redeemed) set forth below plus accrued and unpaid interest thereon, if any, to but
excluding the applicable Redemption Date, subject to the right of Holders of Notes on the relevant
record date to receive



II-7









 




interest due on the relevant interest payment date, if redeemed during the 12-month period
beginning on February 1 of each of the years indicated below:




	 	 	 	 	 
	Year	 	Percentage
	2014
	 	 	104.563	%
	2015
	 	 	102.281	%
	2016 and thereafter
	 	 	100.000	%






     In addition, at any time on or prior to February 1, 2013, the Company may on any one or more
occasions redeem up to an aggregate of 35.0% of the aggregate principal amount of the Notes at a
redemption price of 109.125% of the principal amount of the Notes redeemed, plus accrued and unpaid
interest thereon, if any, to but excluding the applicable Redemption Date, subject to the rights of
Holders of Notes on the relevant record date to receive interest due on the relevant interest
payment date, with the Net Cash Proceeds of a public offering of common stock of the Company;
provided, however, that at least 65.0% in aggregate principal amount of the Notes remains
outstanding immediately after the occurrence of such redemption and that such redemption shall
occur within 90 days of the date of the closing of such public offering.



     If the Redemption Date with respect to a Note to be redeemed is on or after an interest record
date and on or before the related interest payment date, any accrued and unpaid interest on that
Note shall be payable to the Person that was, at the close of business on such record date, the
Holder of that Note, and no additional interest for the period to which that interest record date
relates shall be payable with respect to that Note.


6. Notice of Redemption




     Notice of redemption will be mailed at least 30 days but not more than 60 days before the
applicable Redemption Date to each Holder of Notes to be redeemed at his registered address. No
Notes of $2,000 or less shall be redeemed in part. Notes in denominations larger than $2,000
principal amount may be redeemed in part, but only in whole multiples of $1,000. Notes called for
redemption become due on the applicable Redemption Date. On and after the applicable Redemption
Date, interest ceases to accrue on Notes or portions of them called for redemption.


7. Repurchase of Notes at the Option of the Holders upon Change of Control and Asset
Sales




     Upon a Change of Control, any Holder of Notes will have the right to cause the Company to
repurchase all or any part (equal to $2,000 or an integral multiple of $1,000 in excess thereof) of
the Notes of such Holder at a repurchase price equal to 101.0% of the principal amount of the Notes
to be repurchased plus accrued and unpaid interest to but excluding the date of repurchase (subject
to the right of holders of record on the



II-8









 




relevant record date to receive interest due on the related interest payment date) as provided
in, and subject to the terms of, the Indenture.




     In accordance with Section 4.06 of the Indenture, the Company will be required to offer to
purchase Notes upon the occurrence of certain events.


8. Guarantee




     The payment by the Company of the principal of, and premium and interest on, the Notes is
fully and unconditionally guaranteed on a joint and several senior secured basis by each of the
Guarantors to the extent set forth in the Indenture.


9. Denominations; Transfer; Exchange




     The Notes are in registered form without coupons in denominations of $2,000 principal amount
and whole multiples of $1,000 in excess thereof. A Holder may transfer or exchange Notes in
accordance with the Indenture. The Registrar may require a Holder to, among other things, furnish
appropriate endorsements or transfer documents and to pay any taxes and fees required by law or
permitted by the Indenture. The Company shall not be required to transfer or exchange, and the
Registrar need not register the transfer or exchange, of any Note selected for redemption (except,
in the case of a Note to be redeemed in part, the portion of the Note not to be redeemed) or any
Note for a period of 15 days before a selection of Notes to be redeemed or 15 days before an
interest payment date.


10. Persons Deemed Owners




     The registered Holder of this Note shall be treated as the owner of it for all purposes.


11. Unclaimed Money




     If money for the payment of principal or interest remains unclaimed for two years, the Trustee
or Paying Agent shall pay the money back to the Company at its request unless an abandoned property
law designates another Person. After any such payment, Holders entitled to the money must look
only to the Company and not to the Trustee for payment.


12. Discharge and Defeasance




     Subject to certain conditions, the Company at any time shall be entitled to terminate some or
all of its obligations under the Notes and the Indenture if the Company deposits with the Trustee
money or Government Securities for the payment of principal and interest on the Notes to redemption
or maturity, as the case may be.



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13. Amendment, Waiver




     Subject to certain exceptions set forth in the Indenture, (a) the Indenture, the Security
Documents, the Intercreditor Agreement and the Notes may be amended or supplemented (and waivers
granted with respect to any provisions thereof) with the written consent of the Holders of a
majority in principal amount of the Notes then outstanding and (b) any default or noncompliance
with any provision thereof may be waived with the written consent of the Holders of a majority in
principal amount of the Notes then outstanding. Subject to certain exceptions set forth in the
Indenture, without the consent of any Holder, the Company, the Guarantors and the Trustee may amend
or supplement the Indenture, the Notes, any Security Document or the Intercreditor Agreement to
cure any ambiguity, omission, defect or inconsistency; to provide for uncertificated Notes in
addition to or in place of certificated Notes (provided that the uncertificated Notes are issued in
registered form for purposes of Section 163(f) of the Code); to provide for the assumption by a
successor corporation of the obligations of the Company or a Guarantor to Holders under the
Indenture in the case of a merger or consolidation; to make any change that would provide any
additional rights or benefits to the Holders of Notes or that does not adversely affect the legal
rights under the Indenture of any such Holder; to comply with requirements of the SEC in order to
effect or maintain the qualification of this Indenture under the Trust Indenture Act; to evidence
and provide for the acceptance of appointment under the Indenture of a successor trustee; to add
one or more Guarantors under this Indenture; to add any additional assets to the Collateral; to
release Collateral from the Lien of the Security Documents when permitted or required by this
Indenture and the Security Documents; to conform the text of this Indenture, the Notes or any
Guarantee to any provision of the section of the Offering Circular entitled “Description of Notes”
to the extent that such provision in the section of the Offering Circular entitled “Description of
Notes” was intended to be a verbatim recitation of a provision of the Indenture, the Notes or such
Guarantee; as necessary to conform the Indenture to any exemptive orders under the Trust Indenture
Act received by the Company or any Guarantor; or to make any amendment to the provisions of the
Indenture relating to the transfer and legending of Notes; provided, however, that (1) compliance
with the Indenture as so amended would not result in Notes being transferred in violation of the
Securities Act or any other applicable securities law and (2) such amendment does not materially
and adversely affect the rights of Holders to transfer Notes.


14. Defaults and Remedies




     Under the Indenture and subject to the terms of the Indenture, Events of Default include: (i)
default in the payment when due of interest on the Notes, which default continues for 30
consecutive days; (ii) default in payment of the principal of or premium, if any, on the Notes when
due, at Stated Maturity, upon optional redemption, upon required repurchase or otherwise; (iii)
failure by the Company to comply with other agreements in the Indenture or the Notes, in certain
cases subject to notice or lapse of time; (iv) certain accelerations (including failure to pay
within any grace period after



II-10









 




final maturity) of other Indebtedness of the Company if the amount accelerated (or so unpaid)
exceeds $25 million; (v) certain judgments or decrees for the payment of money in excess of $25
million; (vi) certain defaults with respect to the Notes Guarantees; (vii) certain events of
bankruptcy or insolvency with respect to the Company or any of its Significant Subsidiaries or any
group of Subsidiaries that, taken together, would constitute a Significant Subsidiary and (viii)
certain defaults relating to the Collateral under the Security Documents. If an Event of Default
occurs and is continuing, the Trustee or the Holders of at least 25% in principal amount of the
Notes may declare all the Notes to be due and payable immediately. Certain events of bankruptcy or
insolvency are Events of Default which will result in the Notes being due and payable immediately
upon the occurrence of such Events of Default.




     Holders may not enforce the Indenture or the Notes except as provided in the Indenture. The
Trustee may refuse to enforce the Indenture or the Notes unless it receives indemnity or security
satisfactory to it. Subject to certain limitations, Holders of a majority in principal amount of
the Notes may direct the Trustee in its exercise of any trust or power. The Trustee may withhold
from Holders notice of any continuing Default (except a Default in payment of principal or
interest) if it determines that withholding notice is in the interest of the Holders.


15. Trustee Dealings with the Company




     Subject to certain limitations imposed by the Act and the Indenture, the Trustee, in its
individual or any other capacity, may become the owner or pledgee of Notes and may become a
creditor of, or otherwise deal with, the Company or its Affiliates with the same rights it would
have if it were not Trustee.


16. No Recourse Against Others




     No director, officer, employee, incorporator or shareholder of the Company, and no director,
trustee, officer, employee, incorporator or shareholder (other than the Company or a Restricted
Subsidiary) of any Subsidiary of the Company, as such, shall have any liability for any obligations
of the Company or any Guarantor under the Notes, the Indenture, any Notes Guarantee [, the
Applicable Registration Rights Agreement (as defined in paragraph 20 of this Note)] 6 or
the Security Documents or for any claim based on, in respect of or by reason of such obligations or
their creation. By accepting a Note, each Holder shall waive and release all such liability. This
waiver and release shall be part of the consideration for the issue of the Notes.





 




			
	6	 	To be included only if there is a Registration
Rights Agreement (as defined in the Appendix) applicable to this Note.




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17. Authentication




     This Note shall not be valid until an authorized signatory of the Trustee (or an
authenticating agent) manually signs the certificate of authentication on the other side of this
Note.


18. Abbreviations




     Customary abbreviations may be used in the name of a Holder or an assignee, such as TEN COM
(=tenants in common), TEN ENT (=tenants by the entireties), JT TEN (=joint tenants with rights of
survivorship and not as tenants in common), CUST (=custodian), and U/G/M/A (=Uniform Gift to Minors
Act).


19. CUSIP Numbers, ISINs etc.




     The Company has caused [CUSIP numbers and ISINs [and Common Code numbers]] to be printed on
the Notes, and the Trustee may use [CUSIP numbers and ISINs [and Common Code numbers]] in notices
of redemption as a convenience to Holders. No representation is made as to the accuracy of such
numbers, either as printed on the Notes or as contained in any notice of redemption, and reliance
may be placed only on the other identification numbers placed thereon.




	20.	 	[Holders’ Compliance with Registration Rights Agreement.





     Each Holder of a Note, by acceptance hereof, acknowledges and agrees to the provisions of the
[Registration Rights Agreement]7 (the “Applicable Registration Rights
Agreement”), including the obligations of the Holders with respect to a registration and the
indemnification of the Company to the extent provided therein.]8


21. Governing Law.




     THIS SECURITY SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF
NEW YORK, WITHOUT GIVING EFFECT TO APPLICABLE PRINCIPLES OF CONFLICTS





 




			
	7	 	Specify the applicable Registration Rights
Agreement, including parties thereto and date thereof.
	 
	8	 	To be included only if there is a Registration
Rights Agreement (as defined in the Appendix) applicable to this Note. If no
Registration Rights Agreement applies, replace with “[RESERVED.]”.






II-12











 





OF LAW TO THE EXTENT THAT THE APPLICATION OF THE LAW OF ANOTHER JURISDICTION WOULD BE REQUIRED
THEREBY.




     The Company will furnish to any Holder upon written request and without charge to the Holder a
copy of the Indenture which has in it the text of this Note in larger type. Requests may be made
to:


Credit Acceptance Corporation

25505 W. Twelve Mile Road

Southfield, Michigan 48034

Attention: Treasurer







II-13









 








ASSIGNMENT FORM



To assign this Note, fill in the form below:



I or we assign and transfer this Note to




     (Print or type assignee’s name, address and zip code)



     (Insert assignee’s soc. sec. or tax I.D. No.)


and irrevocably appoint agent to transfer this Note on the books of the Company. The agent
may substitute another to act for him.




	 	 	 
	 

	 
	 	 
	Date:                                         

	 	Your Signature:                                                             
	 
	 	 
	 






Sign exactly as your name appears on the other side of this Note.







II-14















 





OPTION OF HOLDER TO ELECT PURCHASE




          If you want to elect to have this Note purchased by the Company pursuant to Section 4.06 or
4.09 of the Indenture, check the box: o




     If you want to elect to have only part of this Note purchased by the Company pursuant to
Section 4.06 or 4.09 of the Indenture, state the amount in principal amount: $                    
          



	 	 	 	 	 	 	 	 	 	 	 
	Dated:

	 	 	 	 	 	Your Signature:	 	 	 	 
	 

	 	 

	 	 
	 	 	 	(Sign exactly as your name appears on the other side of this
Note.)

	 	 
	 

	 	 	 	 	 	 	 	 	 	 






	 	 	 
	Signature Guarantee: 
	 	 
	 

	 	 
	 

	 	(Signature must be guaranteed) 






     Signatures must be guaranteed by an “eligible guarantor institution” meeting the requirements
of the Registrar, which requirements include membership or participation in the Security Transfer
Agent Medallion Program (“STAMP”) or such other “signature guarantee program” as may be determined
by the Registrar in addition to, or in substitution for, STAMP, all in accordance with the Notes
Exchange Act of 1934, as amended.



II-15









 





EXHIBIT III

to

RULE 144A/REGULATION S APPENDIX

to the Indenture, dated as of February 1, 2010,

among Credit Acceptance Corporation, a Michigan

corporation, the Guarantors (as defined therein) listed

on the signature pages thereto and U.S. Bank National

Association,a national banking association, as trustee




Form of

Transferee Letter of Representation



Credit Acceptance Corporation




In care of

U.S. Bank National Association

Corporate Trust Services

EP-MN-WS3C

60 Livingston Avenue

St. Paul, Minnesota 55107



Ladies and Gentlemen:




     This certificate is delivered to request a transfer of $[    ] principal amount of the
9.125% First Priority Senior Secured Notes due 2017 (the “Notes”) of Credit Acceptance
Corporation (the “Company”).



     Upon transfer, the Notes would be registered in the name of the new beneficial owner as
follows:



	 	 	 	 	 
	Name:
	 	 	 	 
	Address:

	 	 

	 	 
	Taxpayer ID Number:

	 	 

	 	 
	 

	 	 

	 	 






     The undersigned represents and warrants to you that:



     1. We are an institutional “accredited investor” (as defined in Rule 501(a)(1), (2), (3) or
(7) under the Securities Act of 1933, as amended (the “Securities Act”)), purchasing for
our own account or for the account of such an institutional “accredited investor” at least $250,000
principal amount of the Notes, and we are acquiring the Notes not with a view to, or for offer or
sale in connection with, any distribution in violation of the Securities Act. We have such
knowledge and experience in financial and business matters as to be capable of evaluating the
merits and risks of our investment in the Notes, and we invest in or purchase securities similar to
the Notes in the normal course of our



 









 




business. We, and any accounts for which we are acting, are each able to bear the economic
risk of our or its investment.




     2. We understand that the Notes have not been registered under the Securities Act and, unless
so registered, may not be sold except as permitted in the following sentence. We agree on our own
behalf and on behalf of any investor account for which we are purchasing Notes to offer, sell or
otherwise transfer such Notes prior to the date that is two years after the later of the date of
original issue and the last date on which the Company or any affiliate of the Company was the owner
of such Notes (or any predecessor thereto) (the “Resale Restriction Termination Date”) only
(i) to the Company, (ii) in the United States to a person whom the seller reasonably believes is a
qualified institutional buyer in a transaction meeting the requirements of Rule 144A, (iii) to an
institutional “accredited investor” within the meaning of Rule 501(a)(1), (2), (3) or (7) under the
Securities Act that is an institutional accredited investor purchasing for its own account or for
the account of an institutional accredited investor, in each case in a minimum principal amount of
the Notes of $250,000, (iv) outside the United States in a transaction complying with the
provisions of Rule 904 under the Securities Act, (v) pursuant to an exemption from registration
under the Securities Act provided by Rule 144 (if available) or (vi) pursuant to an effective
registration statement under the Securities Act, in each of cases (i) through (vi) subject to any
requirement of law that the disposition of our property or the property of such investor account or
accounts be at all times within our or their control and in compliance with any applicable state
securities laws. The foregoing restrictions on resale will not apply subsequent to the Resale
Restriction Termination Date. If any resale or other transfer of the Notes is proposed to be made
pursuant to clause (iii) above prior to the Resale Restriction Termination Date, the transferor
shall deliver a letter from the transferee substantially in the form of this letter to the Company
and the Trustee, which shall provide, among other things, that the transferee is an institutional
“accredited investor” within the meaning of Rule 501(a)(1), (2), (3) or (7) under the Securities
Act and that it is acquiring such Notes for investment purposes and not for distribution in
violation of the Securities Act. Each purchaser acknowledges that the Company and the Trustee
reserve the right prior to the offer, sale or other transfer prior to the Resale Restriction
Termination Date of the Notes pursuant to clause (iii), (iv) or (v) above to require the delivery
of an opinion of counsel, certifications or other information satisfactory to the Company and the
Trustee.



TRANSFEREE:
            
              
                      
,


by:                            
                          





III-2