Exhibit 4.4


 




 


 





ASBURY AUTOMOTIVE GROUP, INC.


 


and each of the Guarantors named herein


 


8% SENIOR SUBORDINATED NOTES DUE 2014


 












 


INDENTURE


 


Dated as of December 23, 2003


 












 


THE BANK OF NEW YORK


 


as Trustee


 




 





 

















 


CROSS-REFERENCE TABLE*


 


	
  Trust

  Indenture

  Act Section

  	
   

  	
  Indenture

  Section

  
	
   

  	
   

  	
   

  	
   

  
	
  310

  	
  (a)(1)

  	
   

  	
  7.10

  
	
   

  	
  (a)(2)

  	
   

  	
  7.10

  
	
   

  	
  (a)(3)

  	
   

  	
  N.A.

  
	
   

  	
  (a)(4)

  	
   

  	
  N.A.

  
	
   

  	
  (a)(5)

  	
   

  	
  7.10

  
	
   

  	
  (b)

  	
   

  	
  7.10

  
	
   

  	
  (c)

  	
   

  	
  N.A.

  
	
  311

  	
  (a)

  	
   

  	
  7.11

  
	
   

  	
  (b)

  	
   

  	
  7.11

  
	
   

  	
  (c)

  	
   

  	
  N.A.

  
	
  312

  	
  (a)

  	
   

  	
  2.05

  
	
   

  	
  (b)

  	
   

  	
  13.03

  
	
   

  	
  (c)

  	
   

  	
  13.03

  
	
  313

  	
  (a)

  	
   

  	
  7.06

  
	
   

  	
  (b)(1)

  	
   

  	
  10.03

  
	
   

  	
  (b)(2)

  	
   

  	
  7.07

  
	
   

  	
  (c)

  	
   

  	
  7.06; 13.02

  
	
   

  	
  (d)

  	
   

  	
  7.06

  
	
  314

  	
  (a)

  	
   

  	
  4.03; 13.02

  
	
   

  	
  (b)

  	
   

  	
  10.02

  
	
   

  	
  (c)(1)

  	
   

  	
  13.04

  
	
   

  	
  (c)(2)

  	
   

  	
  13.04

  
	
   

  	
  (c)(3)

  	
   

  	
  N.A.

  
	
   

  	
  (d)

  	
   

  	
  10.03, 10.04, 10.05

  
	
   

  	
  (e)

  	
   

  	
  13.05

  
	
   

  	
  (f)

  	
   

  	
  N.A.

  
	
  315

  	
  (a)

  	
   

  	
  7.01

  
	
   

  	
  (b)

  	
   

  	
  7.05, 13.02

  
	
   

  	
  (c)

  	
   

  	
  7.01

  
	
   

  	
  (d)

  	
   

  	
  7.01

  
	
   

  	
  (e)

  	
   

  	
  6.11

  
	
  316

  	
  (a)
  (last sentence)

  	
   

  	
  2.09

  
	
   

  	
  (a)(1)(A)

  	
   

  	
  6.05

  
	
   

  	
  (a)(1)(B)

  	
   

  	
  6.04

  
	
   

  	
  (a)(2)

  	
   

  	
  N.A.

  
	
   

  	
  (b)

  	
   

  	
  6.07

  
	
   

  	
  (c)

  	
   

  	
  2.12

  



 












* This Cross Reference Table is
not a part of the Indenture.


  N.A. means not
applicable.


 


i

















 


 


	
  Trust

  Indenture

  Act Section

  	
   

  	
  Indenture

  Section

  
	
   

  	
   

  	
   

  	
   

  
	
  317

  	
  (a)(1)

  	
   

  	
  6.08

  
	
   

  	
  (a)(2)

  	
   

  	
  6.09

  
	
   

  	
  (b)

  	
   

  	
  2.04

  
	
  318

  	
  (a)

  	
   

  	
  13.01

  
	
   

  	
  (b)

  	
   

  	
  N.A.

  
	
   

  	
  (c)

  	
   

  	
  13.01

  



 


ii

















 


TABLE OF CONTENTS


 


	
   

  	
  ARTICLE 1

  	
   

  
	
   

  	
  DEFINITIONS AND
  INCORPORATION BY REFERENCE

  	
   

  
	
   

  	
   

  	
   

  
	
  Section 1.01.

  	
  Definitions.

  	
   

  
	
  Section 1.02.

  	
  Other Definitions.

  	
   

  
	
  Section 1.03.

  	
  Incorporation by
  Reference of Trust Indenture Act.

  	
   

  
	
  Section 1.04.

  	
  Rules of Construction.

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  ARTICLE 2

  	
   

  
	
   

  	
  THE NOTES

  	
   

  
	
   

  	
   

  	
   

  
	
  Section 2.01.

  	
  Form and Dating.

  	
   

  
	
  Section 2.02.

  	
  Execution and
  Authentication.

  	
   

  
	
  Section 2.03.

  	
  Registrar and Paying
  Agent.

  	
   

  
	
  Section 2.04.

  	
  Paying Agent to Hold
  Money in Trust.

  	
   

  
	
  Section 2.05.

  	
  Holder Lists.

  	
   

  
	
  Section 2.06.

  	
  Transfer and Exchange.

  	
   

  
	
  Section 2.07.

  	
  Replacement Notes.

  	
   

  
	
  Section 2.08.

  	
  Outstanding Notes.

  	
   

  
	
  Section 2.09.

  	
  Treasury Notes.

  	
   

  
	
  Section 2.10.

  	
  Temporary Notes.

  	
   

  
	
  Section 2.11.

  	
  Cancellation.

  	
   

  
	
  Section 2.12.

  	
  Defaulted Interest.

  	
   

  
	
  Section 2.13.

  	
  CUSIP Numbers.

  	
   

  
	
  Section 2.14.

  	
  Issuance of Additional
  Notes.

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  ARTICLE 3

  	
   

  
	
   

  	
  REDEMPTION AND PREPAYMENT

  	
   

  
	
   

  	
   

  	
   

  
	
  Section 3.01.

  	
  Notices to Trustee.

  	
   

  
	
  Section 3.02.

  	
  Selection of Notes to
  Be Redeemed.

  	
   

  
	
  Section 3.03.

  	
  Notice of Redemption.

  	
   

  
	
  Section 3.04.

  	
  Effect of Notice of
  Redemption.

  	
   

  
	
  Section 3.05.

  	
  Deposit of Redemption
  Price.

  	
   

  
	
  Section 3.06.

  	
  Notes Redeemed in
  Part.

  	
   

  
	
  Section 3.07.

  	
  Optional Redemption.

  	
   

  
	
  Section 3.08.

  	
  Mandatory Redemption.

  	
   

  
	
  Section 3.09.

  	
  Offer to Purchase by
  Application of Excess Proceeds.

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  ARTICLE 4

  	
   

  
	
   

  	
  COVENANTS

  	
   

  
	
   

  	
   

  	
   

  
	
  Section 4.01.

  	
  Payment of Notes.

  	
   

  
	
  Section 4.02.

  	
  Maintenance of Office
  or Agency.

  	
   

  
	
  Section 4.03.

  	
  Reports.

  	
   

  



 


iii

















 


	
  Section 4.04.

  	
  Compliance
  Certificate.

  	
   

  
	
  Section 4.05.

  	
  Payment of Taxes and
  Other Claims.

  	
   

  
	
  Section 4.06.

  	
  Stay, Extension and
  Usury Laws.

  	
   

  
	
  Section 4.07.

  	
  Restricted Payments.

  	
   

  
	
  Section 4.08.

  	
  Dividend and Other
  Payment Restrictions Affecting Restricted Subsidiaries.

  	
   

  
	
  Section 4.09.

  	
  Incurrence of
  Indebtedness and Issuance of Preferred Stock.

  	
   

  
	
  Section 4.10.

  	
  Asset Sales.

  	
   

  
	
  Section 4.11.

  	
  Transactions with
  Affiliates.

  	
   

  
	
  Section 4.12.

  	
  Limitation on Liens.

  	
   

  
	
  Section 4.13.

  	
  Designation of
  Restricted and Unrestricted Subsidiaries.

  	
   

  
	
  Section 4.14.

  	
  Corporate Existence.

  	
   

  
	
  Section 4.15.

  	
  Offer to Repurchase
  Upon Change of Control.

  	
   

  
	
  Section 4.16.

  	
  Anti-Layering.

  	
   

  
	
  Section 4.17.

  	
  Additional
  Subsidiary Guarantees.

  	
   

  
	
  Section 4.18.

  	
  Payments for
  Consent.

  	
   

  
	
  Section 4.19.

  	
  Restrictions on
  Lexus Dealership Subsidiaries and Toyota Dealership Subsidiaries.

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  ARTICLE 5

  	
   

  
	
   

  	
  SUCCESSORS

  	
   

  
	
   

  	
   

  	
   

  
	
  Section 5.01.

  	
  Merger,
  Consolidation, or Sale of Assets.

  	
   

  
	
  Section 5.02.

  	
  Successor Company
  Substituted.

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  ARTICLE 6

  	
   

  
	
   

  	
  DEFAULTS AND
  REMEDIES

  	
   

  
	
   

  	
   

  	
   

  
	
  Section 6.01.

  	
  Events of Default.

  	
   

  
	
  Section 6.02.

  	
  Acceleration.

  	
   

  
	
  Section 6.03.

  	
  Other Remedies.

  	
   

  
	
  Section 6.04.

  	
  Waiver of Past
  Defaults.

  	
   

  
	
  Section 6.05.

  	
  Control by Majority.

  	
   

  
	
  Section 6.06.

  	
  Limitation on Suits.

  	
   

  
	
  Section 6.07.

  	
  Rights of Holders of
  Notes to Receive Payment.

  	
   

  
	
  Section 6.08.

  	
  Collection Suit by
  Trustee.

  	
   

  
	
  Section 6.09.

  	
  Trustee May File
  Proofs of Claim.

  	
   

  
	
  Section 6.10.

  	
  Priorities.

  	
   

  
	
  Section 6.11.

  	
  Undertaking for
  Costs.

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  ARTICLE 7

  	
   

  
	
   

  	
  TRUSTEE

  	
   

  
	
   

  	
   

  	
   

  
	
  Section 7.01.

  	
  Duties of Trustee.

  	
   

  
	
  Section 7.02.

  	
  Rights of Trustee.

  	
   

  
	
  Section 7.03.

  	
  Individual Rights of
  Trustee.

  	
   

  
	
  Section 7.04.

  	
  Trustee’s
  Disclaimer.

  	
   

  
	
  Section 7.05.

  	
  Notice of Defaults.

  	
   

  
	
  Section 7.06.

  	
  Reports by Trustee
  to Holders of the Notes.

  	
   

  
	
  Section 7.07.

  	
  Compensation and
  Indemnity.

  	
   

  



 


iv

















 


	
  Section 7.08.

  	
  Replacement of
  Trustee.

  	
   

  
	
  Section
  7.09.

  	
  Successor
  Trustee by Merger, etc.

  	
   

  
	
  Section
  7.10.

  	
  Eligibility;
  Disqualification.

  	
   

  
	
  Section
  7.11.

  	
  Preferential
  Collection of Claims Against Company.

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  ARTICLE
  8

  	
   

  
	
   

  	
  LEGAL
  DEFEASANCE AND COVENANT DEFEASANCE

  	
   

  
	
   

  	
   

  	
   

  
	
  Section
  8.01.

  	
  Option
  to Effect Legal Defeasance or Covenant Defeasance.

  	
   

  
	
  Section
  8.02.

  	
  Legal
  Defeasance and Discharge.

  	
   

  
	
  Section 8.03.

  	
  Covenant Defeasance.

  	
   

  
	
  Section
  8.04.

  	
  Conditions
  to Legal or Covenant Defeasance.

  	
   

  
	
  Section
  8.05.

  	
  Deposited
  Money and Government Securities to be Held in Trust; Other Miscellaneous
  Provisions

  	
   

  
	
  Section 8.06.

  	
  Repayment to
  Company.

  	
   

  
	
  Section 8.07.

  	
  Reinstatement.

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  ARTICLE 9

  	
   

  
	
   

  	
  AMENDMENT,
  SUPPLEMENT AND WAIVER

  	
   

  
	
   

  	
   

  	
   

  
	
  Section
  9.01.

  	
  Without
  Consent of Holders of Notes.

  	
   

  
	
  Section
  9.02.

  	
  With
  Consent of Holders of Notes.

  	
   

  
	
  Section
  9.03.

  	
  Compliance
  with Trust Indenture Act.

  	
   

  
	
  Section
  9.04.

  	
  Revocation
  and Effect of Consents.

  	
   

  
	
  Section
  9.05.

  	
  Notation
  on or Exchange of Notes.

  	
   

  
	
  Section
  9.06.

  	
  Trustee
  to Sign Amendments, etc.

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  ARTICLE 10

  	
   

  
	
   

  	
  SUBORDINATION

  	
   

  
	
   

  	
   

  	
   

  
	
  Section 10.01.

  	
  Agreement to
  Subordinate.

  	
   

  
	
  Section
  10.02.

  	
  Liquidation;
  Dissolution; Bankruptcy.

  	
   

  
	
  Section
  10.03.

  	
  Default
  on Designated Senior Debt.

  	
   

  
	
  Section 10.04.

  	
  Acceleration of
  Notes.

  	
   

  
	
  Section
  10.05.

  	
  When
  Distribution Must Be Paid Over.

  	
   

  
	
  Section 10.06.

  	
  Notice by Company.

  	
   

  
	
  Section 10.07.

  	
  Subrogation.

  	
   

  
	
  Section 10.08.

  	
  Relative Rights.

  	
   

  
	
  Section
  10.09.

  	
  Subordination
  May Not Be Impaired by Company.

  	
   

  
	
  Section
  10.10.

  	
  Distribution
  or Notice to Representative.

  	
   

  
	
  Section
  10.11.

  	
  Rights
  of Trustee and Paying Agent.

  	
   

  
	
  Section
  10.12.

  	
  Authorization
  to Effect Subordination.

  	
   

  
	
  Section 10.13.

  	
  Amendments.

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  ARTICLE 11

  	
   

  
	
   

  	
  SUBSIDIARY GUARANTEES

  	
   

  
	
   

  	
   

  	
   

  
	
  Section 11.01.

  	
  Guarantees.

  	
   

  
	
  Section
  11.02.

  	
  Subordination
  of Subsidiary Guarantees.

  	
   

  



 


v

















 


	
  Section
  11.03.

  	
  Limitation
  on Guarantor Liability.

  	
   

  
	
  Section
  11.04.

  	
  Execution
  and Delivery of Subsidiary Guarantees.

  	
   

  
	
  Section
  11.05.

  	
  Guarantors
  May Consolidate, etc., on Certain Terms.

  	
   

  
	
  Section
  11.06.

  	
  Releases
  Following Sale of Assets.

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  ARTICLE 12

  	
   

  
	
   

  	
  SATISFACTION AND
  DISCHARGE

  	
   

  
	
   

  	
   

  	
   

  
	
  Section
  12.01.

  	
  Satisfaction
  and Discharge.

  	
   

  
	
  Section
  12.02.

  	
  Application
  of Trust Money.

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  ARTICLE 13

  	
   

  
	
   

  	
  MISCELLANEOUS

  	
   

  
	
   

  	
   

  	
   

  
	
  Section
  13.01.

  	
  Trust
  Indenture Act Controls.

  	
   

  
	
  Section
  13.02.

  	
  Notices.

  	
   

  
	
  Section
  13.03.

  	
  Communication
  by Holders of Notes with Other Holders of Notes.

  	
   

  
	
  Section
  13.04.

  	
  Certificate
  and Opinion as to Conditions Precedent.

  	
   

  
	
  Section
  13.05.

  	
  Statements
  Required in Certificate or Opinion.

  	
   

  
	
  Section
  13.06.

  	
  Rules by
  Trustee and Agents.

  	
   

  
	
  Section
  13.07.

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

  	
   

  
	
  Section 13.08.

  	
  Governing Law.

  	
   

  
	
  Section
  13.09.

  	
  No
  Adverse Interpretation of Other Agreements.

  	
   

  
	
  Section 13.10.

  	
  Successors.

  	
   

  
	
  Section 13.11.

  	
  Severability.

  	
   

  
	
  Section 13.12.

  	
  Counterpart
  Originals.

  	
   

  
	
  Section
  13.13.

  	
  Table
  of Contents, Headings, etc.

  	
   

  
	
  Section 13.14.

  	
  Benefits of
  Indenture.

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  EXHIBITS

  	
   

  
	
   

  	
   

  	
   

  
	
  Exhibit A1

  	
  Form of Note

  	
   

  
	
  Exhibit A2

  	
  Form of Regulation S
  Temporary Global Note

  	
   

  
	
  Exhibit B

  	
  Form of Certificate of
  Transfer

  	
   

  
	
  Exhibit C

  	
  Form of Certificate of
  Exchange

  	
   

  
	
  Exhibit D

  	
  Form of Certificate From
  Acquiring Institutional Accredited Investor

  	
   

  
	
  Exhibit E

  	
  Form of Subsidiary Guarantee

  	
   

  
	
  Exhibit F

  	
  Form of Supplemental
  Indenture To Be Delivered By Subsequent Guarantors

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  SCHEDULES

  	
   

  
	
   

  	
   

  	
   

  
	
  Schedule
  I

  	
  Schedule of Guarantors

  	
   

  



 


vi

















 


INDENTURE
dated as of December 23, 2003 among Asbury Automotive Group, Inc., a Delaware
corporation (the “Company”), the subsidiary guarantors listed on
Schedule I hereto (collectively, the “Guarantors”) and The Bank of New
York, a New York banking corporation, as trustee (the “Trustee”).


 


The
Company, the Guarantors and the Trustee agree as follows for the benefit of
each other and for the equal and ratable benefit of the Holders of the 8%
Senior Subordinated Notes due 2014 (the “Notes”):


 


ARTICLE 1


DEFINITIONS
AND INCORPORATION


BY REFERENCE


 


Section 1.01.            Definitions.


 


“144A
Global Note” means a global note substantially in the form of Exhibit A-1
hereto bearing the Global Note Legend and the Private Placement Legend and
deposited with or on behalf of, and registered in the name of, the Depositary
or its nominee that will be issued in a denomination equal to the outstanding
principal amount of the Notes sold in reliance on Rule 144A.


 


“Acquired
Debt” 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, whether or not such Indebtedness
is 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 additional notes (other than the Initial Notes) issued from
time to time under this Indenture in accordance with Sections 2.02 and 4.09
hereof, as part of the same series as the Initial Notes.


 


“Affiliate”
of any specified Person means any other Person directly or indirectly
controlling or controlled by or under direct or indirect common control with
such specified Person. For purposes of this definition, “control,” as
used with respect to any Person, shall mean the possession, directly or
indirectly, of the power to direct or cause the direction of the management or
policies of such Person, whether through the ownership of voting securities, by
agreement or otherwise; provided that beneficial ownership of 10% or more of
the Voting Stock of a Person shall be deemed to be control. For purposes of
this definition, the terms “controlling,” “controlled by” and “under
common control with” have correlative meanings.


 


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


 


“Applicable
Premium” means, with respect to a Note at any Redemption Date, the greater
of (i) 1.0% of the principal amount of such Note and (ii) the excess of (A) the
present value at such Redemption Date of (1) the redemption price of such Note
at March 15, 2009 (such redemption price being described in Section 3.07
hereof) plus (2) all required interest payments due on such Note through March
15, 2009 (excluding accrued but unpaid interest), computed, in


 

















 


both cases, using a discount rate equal to
the Treasury Rate plus 50 basis points, over, (B) the principal amount of such
Note.


 


“Applicable
Procedures” means, with respect to any transfer or exchange of or for
beneficial interests in any Global Note, the rules and procedures of the
Depositary, Euroclear and Clearstream that apply to such transfer or exchange.


 


“Asset
Sale” means: (i) the sale, lease, conveyance or other disposition of any
assets or rights; provided that the sale, conveyance or other disposition of
all or substantially all of the assets of the Company and its Subsidiaries
taken as a whole will be governed by Section 4.15 and/or Section 5.01 of this
Indenture and not by the provisions of Section 4.10 hereof; and (ii) the
issuance of Equity Interests by any of the Company’s Restricted Subsidiaries or
the sale of Equity Interests in any of its Restricted Subsidiaries.


 


Notwithstanding
the preceding, the following items will not be deemed to be Asset Sales: (1)
for purposes of Section 4.10 hereof only, any single transaction or series of
related transactions that involves assets having a fair market value of less
than $2.5 million; (2) a transfer of assets between or among the Company and
its Restricted Subsidiaries, (3) an issuance of Equity Interests by a
Subsidiary to the Company or to a Restricted Subsidiary of the Company; (4) the
sale or lease of inventory or accounts receivable in the ordinary course of
business; (5) the sale of obsolete or damaged equipment in the ordinary course
of business;(6) the sale or other disposition of cash of Cash Equivalents; (7)
for purposes of Section 4.10 hereof only, a Restricted Payment or Permitted
Investment that is permitted by Section 4.07 of this Indenture; (8) any sale of
Equity Interests in, or Indebtedness or other securities of, an Unrestricted
Subsidiary; and (9) the creation of Liens.


 


“Attributable
Debt” in respect of a sale and leaseback transaction means, at the time of
determination, the present value of the obligation of the lessee for net rental
payments during the remaining term of the lease included in such sale and leaseback
transaction including any period for which such lease has been extended or may,
at the option of the lessor, be extended. Such present value shall be
calculated using a discount rate equal to the rate of interest implicit in such
transaction, determined in accordance with GAAP.


 


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


 


“Beneficial
Owner” has the meaning assigned to such term in Rule 13d-3 and Rule 13d-5
under the Exchange Act, except that in calculating the beneficial ownership of
any particular “person” (as that term is used in Section 13(d)(3) of the
Exchange Act), such “person” will be deemed to have beneficial ownership
of all securities that such “person” has the right to acquire by
conversion or exercise of other securities, whether such right is currently
exercisable or is exercisable only upon the occurrence of a subsequent
condition. The terms “Beneficially Owns” and “Beneficially Owned”
have a corresponding meaning.


 


“Board
of Directors” means (i) with respect to a corporation, the board of
directors of the corporation; (ii) with respect to a partnership, the board of
directors of the general partner of the partnership; and (iii) with respect to
any other Person, the board or committee of such Person serving a similar
function.


 


2

















 


“Broker-Dealer”
has the meaning set forth in the Registration Rights Agreement.


 


“Business
Day” means any day other than a Legal Holiday.


 


“Capital
Lease Obligation” means, at the time any determination is to be made, the
amount of the liability in respect of a capital lease that would at that 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 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) United States dollars; (ii) securities issued or
directly and fully guaranteed or insured by the United States government or any
agency or instrumentality of the United States government (provided that the
full faith and credit of the United States is pledged in support of those
securities) having maturities of not more than six months from the date of
acquisition; (iii) time deposit accounts, certificates of deposit and money
market deposits maturing within 180 days of the date of acquisition thereof
issued by a bank or trust company which is organized under the laws of the
United States, any state thereof or any foreign country recognized by the
United States, and which bank or trust company has capital, surplus aggregating
in excess of $500.0 million and has outstanding debt which is rated “A”
(or such similar equivalent rating) or higher by at least one nationally
recognized statistical rating organization (as defined in Rule 436 under the
Securities Act) or any money-market fund sponsored by a registered broker
dealer or mutual fund distributor; (iv) repurchase obligations with a term of
not more than 30 days for underlying securities of the types described in
clauses (ii) and (iii) above entered into with any financial institution
meeting the qualifications specified in clause (iii) above; (v) commercial
paper having the highest rating obtainable from Moody’s Investors Service, Inc.
or Standard & Poor’s Ratings Services (or carrying an equivalent rating by
another nationally recognized statistical rating organization (as defined under
Rule 436 under the Securities Act) if both of such two rating agencies cease
publishing ratings of investments) and maturing not more than 180 days from the
date of acquisition; (vi) money market funds at least 95% of the assets of
which constitute Cash Equivalents of the kinds described in clauses (i) through
(v) above; and (vii) in the case of any Subsidiary organized or having its
principal place of business outside the United States, investments denominated
in the currency of the jurisdiction in which that Subsidiary is organized or
has its principal place of business which are similar to the items specified in
clauses (i) through (vi) above, including, without limitation, any deposit with
a bank that is a lender to any Restricted Subsidiary of the Company.


 


“Change
of Control” means the occurrence of any of the following: (i) the direct or
indirect sale, transfer, conveyance or other disposition (other than by way of
merger or consolidation), in one or a series of related transactions, of all or
substantially all of the properties or assets of the Company and its Restricted
Subsidiaries, taken as a whole, to any “person” (as that term is used in
Section 13(d)(3) of the Exchange Act) other than a Permitted Holder; (ii) the
adoption of a plan relating to the liquidation or dissolution of the Company;
(iii) the consummation of any transaction (including, without limitation, any
merger or consolidation) the result of which is that any “person” (as
defined above), other than a Permitted Holder, becomes


 


3

















 


the Beneficial Owner, directly or indirectly,
of more than 50% of the Voting Stock of the Company, measured by voting power
rather than number of shares; (iv) the first day on which a majority of the
members of the Board of Directors of the Company are not Continuing Directors;
or (v) the Company’s merger or consolidation with or into any Person, or the
consolidation of any Person with, or the merger of any Person with or into, the
Company, in any such event pursuant to a transaction in which any of the
outstanding Voting Stock of the Company or such other Person 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).


 


“Clearstream”
means ClearStream Bank S.A.


 


“Company”
means Asbury Automotive Group, Inc., and any and all successors thereto.


 


“Consolidated
Cash Flow” means, with respect to any specified Person for any period, the
Consolidated Net Income of such Person for such period plus, without duplication: (i) provision
for taxes based on income or profits of such Person and its Restricted
Subsidiaries for such period, to the extent that such provision for taxes was
deducted in computing such Consolidated Net Income; plus (ii) consolidated interest expense of such Person and
its Restricted Subsidiaries for such period, whether or not capitalized ((i)
including, without limitation, amortization of debt issuance costs and original
issue discount, non-cash interest payments, the interest component of any
deferred payment obligations, the interest component of all payments associated
with Capital Lease Obligations, imputed interest with respect to Attributable
Debt, commissions, discounts and other fees and charges incurred in respect of
letters of credit or bankers’ acceptance financings and net of the effect of
all payments made or received pursuant to Hedging Obligations and (ii)
excluding interest expense attributable to Indebtedness incurred under Floor
Plan Facilities), to the extent that any such expense was deducted in computing
such Consolidated Net Income; plus (iii) depreciation, amortization (including
amortization of goodwill and other intangibles but excluding amortization of
prepaid cash expenses that were paid in a prior period) and other non-cash
expenses (excluding any such non-cash expense to the extent that it represents
an accrual of or reserve for cash expenses in any future period or amortization
of a prepaid cash expense that was paid in a prior period) of such Person and
its Restricted Subsidiaries for such period to the extent that such
depreciation, amortization and other non-cash expenses were deducted in
computing such Consolidated Net Income; minus
(iv) non-cash items increasing such Consolidated Net Income for such
period, other than the accrual of revenue in the ordinary course of business,
in each case, on a consolidated basis and determined in accordance with GAAP.


 


“Consolidated
Net Income” means, with respect to any specified Person for any period, the
aggregate of the Net Income of such Person and its Restricted Subsidiaries for
such period, on a consolidated basis, determined in accordance with GAAP,
provided that: (i) the Net Income (or loss) of any Person that is not a
Restricted Subsidiary of such Person or that is accounted for by the equity
method of accounting will not be included except such Net Income will be
included to the extent of the amount of dividends or distributions paid in cash
to the specified Person or a Restricted Subsidiary of the Person; (ii) the Net
Income of any Restricted Subsidiary of such Person will be excluded to the
extent that the declaration or payment of


 


4

















 


dividends or similar distributions by that
Restricted Subsidiary of that Net Income is not at the date of determination
permitted without any prior governmental approval (that has not been obtained)
or, directly or indirectly, by operation of the terms of its charter or any
agreement, instrument, judgment, decree, order, statute, rule or governmental
regulation applicable to that Restricted Subsidiary or its stockholders; (iii)
the Net Income (or loss) of any Person acquired in a pooling of interests
transaction for any period prior to the date of such acquisition will be
excluded; and (iv) the cumulative effect of a change in accounting principles
will be excluded.


 


“Consolidated
Net Tangible Assets” of any Person means, as of any date, the amount which,
in accordance with GAAP, would be set forth under the caption “Total Assets”
(or any like caption) on a consolidated balance sheet of such Person and its
Restricted Subsidiaries, as of the end of the most recently ended fiscal
quarter for which internal financial statements are available, less all
intangible assets, including, without limitation, goodwill, organization costs,
patents, trademarks, copyrights, franchises, and research and development
costs.


 


“Continuing
Directors” means, as of any date of determination, any member of the Board
of Directors of the Company who (i) was a member of such Board of Directors on
the date of this Indenture; or (ii) was nominated for election or elected to
such Board of Directors with the approval of a majority of the Continuing
Directors who were members of such Board at the time of such nomination or
election.


 


“Corporate
Trust Office of the Trustee” shall be at the address of the Trustee
specified in Section 13.02 hereof or such other address as to which the Trustee
may give notice to the Company.


 


“Credit
Agreement” means that certain First Amended and Restated Credit Agreement,
dated as of June 6, 2003, among Asbury Automotive Group, Inc. and Asbury
Automotive Group Holdings, Inc. and Ford Motor Credit Company, DaimlerChrysler
Services North America LLC, General Motors Acceptance Corporation and the other
lenders party thereto providing for revolving credit borrowings, including any related
notes, guarantees, collateral documents, instruments and agreements executed in
connection therewith, and in each case as amended, modified, renewed, refunded,
replaced or refinanced from time to time.


 


“Credit
Facilities” means, one or more debt facilities (including, without
limitation, the Credit Agreement) or commercial paper facilities, in each case
with banks or other institutional lenders providing for revolving credit loans,
term loans, or letters of credit, in each case, as amended, extended, renewed,
restated, supplemented, Refinanced, replaced or otherwise modified (in whole or
in part, and without limitation as to amount, terms, conditions, covenants and
other provisions, or lenders or holders) from time to time.


 


“Custodian”
means the Trustee, as custodian with respect to the Notes in global form, or
any successor entity thereto.


 


“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.


 


“Definitive
Note” means a certificated Note registered in the name of the Holder
thereof and issued in accordance with Section 2.06 hereof, substantially in the
form of


 


5

















 


Exhibit A-1 hereto except that such Note
shall not bear the Global Note Legend and shall not have the “Schedule of
Exchanges of Interests in the Global Note” attached thereto.


 


“Depositary”
means, with respect to the Notes issuable or issued in whole or in part in
global form, the Person specified in Section 2.03 hereof as the Depositary with
respect to the Notes, and any and all successors thereto appointed as
depositary hereunder and having become such pursuant to the applicable
provision of this Indenture.


 


“Designated
Senior Debt” means (i) any Obligation outstanding under the Credit
Agreement and Floor Plan Facilities; and (ii) after payment in full of all
Obligations under the Credit Agreement and Floor Plan Facilities, any other
Senior Debt permitted under this Indenture the principal amount of which is
$25.0 million or more and that has been designated by the Company as “Designated
Senior Debt.”


 


“Disqualified
Stock” means any Capital Stock that, by its terms (or by the terms of any
security into which it is convertible, or for which it is exchangeable, in each
case at the option of the holder of the Capital Stock), or upon the happening
of any event (other than any event solely within the control of the issuer
thereof), matures or is mandatorily redeemable, pursuant to a sinking fund
obligation or otherwise, or redeemable at the option of the holder of the
Capital Stock, in whole or in part, on or prior to the date that is 91 days
after the date on which the Notes mature. Notwithstanding the preceding
sentence, any Capital Stock that would constitute Disqualified Stock solely
because the holders of the Capital Stock have the right to require the Company
to repurchase such Capital Stock upon the occurrence of a change of control or
an asset sale will not constitute Disqualified Stock if the terms of such
Capital Stock provide that the Company may not repurchase or redeem any such
Capital Stock pursuant to such provisions unless such repurchase or redemption
complies with Section 4.07 hereof.


 


“Domestic
Subsidiary” means any Restricted Subsidiary of the Company that was formed
under the laws of the United States or any state of the United States or the
District of Columbia.


 


“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).


 


“Equity
Offering” means any primary offering of common stock of the Company;
provided that, if such primary offering is not a public offering, it shall not
include the portion of such offering made to an Affiliate of the Company.


 


“Existing
Senior Subordinated Indenture” means that certain Indenture, dated as of
June 5, 2002, between the Company and The Bank of New York, as Trustee


 


“Existing
Senior Subordinated Notes” means, as of any time of determination, notes
outstanding at such time of determination issued by the Company under the
Existing Senior Subordinated Indenture.


 


“Existing
Senior Subordinated Notes Guarantees” means, as of any time of
determination, guarantees outstanding at such time of determination entered
into by Subsidiaries


 


6

















 


of the Company to guarantee the Company’s
obligations under the Existing Senior Subordinated Indenture.


 


“Euroclear”
means Euroclear Bank.


 


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


 


“Exchange
Notes” means the Notes issued in the Exchange Offer pursuant to Section
2.06(f) hereof.


 


“Exchange
Offer” has the meaning set forth in the Registration Rights Agreement.


 


“Exchange
Offer Registration Statement” has the meaning set forth in the Registration
Rights Agreement.


 


“Existing
Indebtedness” means Indebtedness of the Company and its Restricted
Subsidiaries (other than Indebtedness under the Credit Agreement and Floor Plan
Facilities) in existence on the date of this Indenture, until such amounts are
repaid.


 


“Fixed
Charges” means, with respect to any specified Person and its Restricted
Subsidiaries for any period, the sum, without duplication, of: (i) the
consolidated interest expense of such Person and its Restricted Subsidiaries
for such period, including, without limitation, amortization of debt issuance
costs and original issue discount, non-cash interest payments, the interest
component of any deferred payment obligations, the interest component of all
payments associated with Capital Lease Obligations, imputed interest with
respect to Attributable Debt, commissions, discounts and other fees and charges
incurred in respect of letter of credit or bankers’ acceptance financings, and
net of the effect of all payments made or received pursuant to Hedging
Obligations (but excluding interest expense attributable to Indebtedness
incurred under Floor Plan Facilities); plus (ii)
the consolidated interest of such Person and its Restricted Subsidiaries that
was capitalized during such period; plus (iii) any interest expense on
Indebtedness of another Person that is Guaranteed by such Person or one of its
Restricted Subsidiaries or secured by a Lien on assets of such Person or one of
its Restricted Subsidiaries, whether or not such Guarantee or Lien is called
upon; plus (iv) the product of (A) all dividends, whether or not in cash, on
any series of preferred stock of such Person or any of its Restricted
Subsidiaries, other than dividends on Equity Interests payable solely in Equity
Interests of the Company (other than Disqualified Stock) or the applicable
Restricted Subsidiary to the Company or a Restricted Subsidiary of the Company,
times (B) a fraction, the
numerator of which is one and the denominator of which is one minus the
effective combined federal, state and local tax rate of such Person for such
period as estimated by the chief financial officer of such Person in good
faith, expressed as a decimal, in each case, on a consolidated basis and in
accordance with GAAP.


 


“Fixed
Charge Coverage Ratio” means with respect to any specified Person for any
period, the ratio of the Consolidated Cash Flow of such Person and its
Restricted Subsidiaries for such period to the Fixed Charges of such Person and
its Restricted Subsidiaries for such period. In the event that the specified
Person or any of its Restricted Subsidiaries incurs, assumes, Guarantees,
repays, repurchases or redeems any Indebtedness (other than ordinary working
capital borrowings) or issues, repurchases or redeems preferred stock
subsequent to the commencement of the period for which the Fixed Charge
Coverage Ratio is being calculated and


 


7

















 


on or prior to the date on which the event
for which the calculation of the Fixed Charge Coverage Ratio is made (the “Calculation
Date”), then the Fixed Charge Coverage Ratio will be calculated giving pro
forma effect to such incurrence, assumption, Guarantee, repayment, repurchase
or redemption of Indebtedness, or such issuance, repurchase or redemption of
preferred stock, and the use of the proceeds therefrom as if the same had
occurred at the beginning of the applicable four-quarter reference period. In
addition, for purposes of calculating the Fixed Charge Coverage Ratio: (i)
acquisitions that have been made by the specified Person or any of its
Restricted Subsidiaries, including through mergers or consolidations and
including any related financing transactions, during the four-quarter reference
period or subsequent to such reference period and on or prior to the
Calculation Date will be given pro forma effect as if they had occurred on the
first day of the four-quarter reference period and Consolidated Cash Flow for
such reference period will be calculated on a pro forma basis in accordance
with Regulation S-X under the Securities Act, but without giving effect to
clause (iii) of the proviso set forth in the definition of Consolidated Net
Income; (ii) the Consolidated Cash Flow attributable to discontinued operations,
as determined in accordance with GAAP, and operations or businesses disposed of
prior to the Calculation Date, will be excluded; and (iii) the Fixed Charges
attributable to discontinued operations, as determined in accordance with GAAP,
and operations or businesses disposed of prior to the Calculation Date, will be
excluded, but only to the extent that the obligations giving rise to such Fixed
Charges will not be obligations of the specified Person or any of its
Restricted Subsidiaries following the Calculation Date. 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
Fixed Charges associated with any Indebtedness incurred in connection
therewith, the pro forma calculations shall be determined in good faith by the
chief financial 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 Hedging Obligation applicable to such Indebtedness if such Hedging
Obligation has a remaining term in excess of 12 months).


 


“Floor
Plan Facility” means an agreement with Ford Motor Credit Company, General
Motors Acceptance Corporation, DaimlerChrysler Services North America LLC or
any other lending institution affiliated with a Manufacturer or any bank or
asset-based lender under which the Company or its Restricted Subsidiaries incur
Indebtedness, all of the net proceeds of which are used to purchase, finance or
refinance vehicles and/or vehicle parts and supplies to be sold in the ordinary
course of the business of the Company and its Restricted Subsidiaries and which
may not be secured except by a Lien that does not extend to or cover any
property other than property of the dealership(s) which use the proceeds of the
Floor Plan Facility or other dealerships who have incurred Indebtedness from
the same lender.


 


“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 from time to time.


 


“Global
Notes” means, individually and collectively, each of the Restricted Global
Notes and the Unrestricted Global Notes, substantially in the form of Exhibit A
hereto issued in accordance with Section 2.01, 2.06(b)(iv), 2.06(d)(ii) or
2.06(f) hereof.


 


8

















 


“Global
Note Legend” means the legend set forth in Section 2.06(g)(ii), which is
required to be placed on all Global Notes issued under this Indenture.


 


“Government
Securities” means direct obligations (or certificates representing an ownership
interest in such obligations) of 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, without limitation, by way of a pledge of assets or through
letters of credit or reimbursement agreements in respect thereof, of all or any
part of any Indebtedness.


 


“Guarantor”
means any Subsidiary of the Company that guarantees the Notes in accordance
with the provisions of this Indenture.


 


“Hedging
Obligations” means, with respect to any specified 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 of a similar character designed to protect such Person against
fluctuations in interest rates.


 


“Holder”
means a Person in whose name a Note is registered on the Registrar’s books.


 


“Indebtedness”
means, with respect to any specified Person, any indebtedness of such Person,
whether or not contingent: (i) in respect of borrowed money; (ii) evidenced by
bonds, notes, debentures or similar instruments or letters of credit (or
reimbursement agreements in respect thereof); (iii) in respect of banker’s
acceptances; (iv) representing Capital Lease Obligations or Attributable Debt
in respect of sale and leaseback transactions; (v) representing the balance
deferred and unpaid of the purchase price of any property, except any such
balance that constitutes an accrued expense or trade payable; or (vi) representing
any Hedging Obligations, if and to the extent any of the preceding items (other
than letters of credit, Attributable Debt and Hedging Obligations) would appear
as a liability upon a balance sheet of the specified Person prepared in
accordance with GAAP. In addition, the term “Indebtedness” includes all
Indebtedness of others secured by a Lien on any asset of the specified Person
(whether or not such Indebtedness is assumed by the specified Person) and, to
the extent not otherwise included, the Guarantee by the specified Person of any
Indebtedness of any other Person. The amount of any Indebtedness outstanding as
of any date will be: (1) the accreted value of the Indebtedness, in the case of
any Indebtedness issued with original issue discount; or (2) the principal
amount of the Indebtedness. In addition, for the purpose of avoiding
duplication in calculating the outstanding principal amount of Indebtedness for
purposes of Section 4.09 hereof, Indebtedness arising solely by reason of the
existence of a Lien to secure other Indebtedness permitted to be incurred under
Section 4.09 hereof will not be considered incremental Indebtedness.
Indebtedness shall not include the obligations of any Person (A) resulting from
the endorsement of negotiable instruments for collection in the ordinary course
of business and (B) under stand-by letters of credit to the extent
collateralized by cash or Cash Equivalents.


 


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


 


9

















 


“Indirect
Participant” means a Person who holds a beneficial interest in a Global
Note through a Participant.


 


“Initial
Notes” means the first $200,000,000 aggregate principal amount of Notes
issued under this Indenture on the date hereof.


 


“Institutional
Accredited Investor” means an institution that is an “accredited
investor” as defined in Rule 501(a)(1), (2), (3) or (7) under the
Securities Act, who are not also QIBs.


 


“Investments”
means, with respect to any Person, all direct or indirect investments by such
Person in other Persons (including Affiliates) in the forms of loans (including
Guarantees or other obligations), advances or capital contributions (excluding
commission, travel and similar advances to officers and employees made in the
ordinary course of business), purchases or other acquisitions for consideration
of Indebtedness, Equity Interests or other securities, together with all items
that are or would be classified as investments on a balance sheet prepared in
accordance with GAAP. If the Company or any Restricted Subsidiary of the
Company sells or otherwise disposes of any Equity Interests of any direct or
indirect Restricted Subsidiary of the Company such that, after giving effect to
any such sale or disposition, such Person is no longer a Subsidiary of the
Company, the Company will be deemed to have made an Investment on the date of
any such sale or disposition equal to the fair market value of the Equity
Interests of such Subsidiary not sold or disposed of in an amount determined as
provided in the final paragraph of Section 4.07 hereof. The acquisition by the
Company or any Restricted Subsidiary of the Company of a Person that holds an
Investment in a third Person will be deemed to be an Investment by the Company
or such Restricted Subsidiary in such third Person in an amount equal to the
fair market value of the Investment held by the acquired Person in such third
Person in an amount determined as provided in the final paragraph of Section
4.07 hereof. Except as otherwise provided for herein, the amount of an
Investment shall be its fair value at the time the Investment is made and
without giving effect to subsequent changes in value.


 


“Issue
Date” means December 23, 2003.


 


“Legal
Holiday” means a Saturday, a Sunday or a day on which banking institutions
in the City of New York or at a place of payment are authorized by law,
regulation or executive order to remain closed. If a payment date is a Legal
Holiday at a place of payment, payment may be made at that place on the next
succeeding day that is not a Legal Holiday, and no interest shall accrue on
such payment for the intervening period.


 


“Letter
of Transmittal” means the letter of transmittal to be prepared by the
Company and sent to all Holders of the Notes for use by such Holders in
connection with the Exchange Offer.


 


“Lexus
Dealership Indebtedness Or Trade Payables” means (i) Indebtedness or trade
payables directly related to or incident to the operation of a franchised Lexus
retail dealership, and (ii) Indebtedness as to which all or substantially all
of the Company’s Domestic Subsidiaries are, directly or indirectly, liable on
the date hereof.


 


“Lexus
Dealership Subsidiary” means a Subsidiary of the Company which directly or
indirectly operates a Lexus retail dealership under a franchise from Toyota
Motor


 


10

















 


Sales, U.S.A., Inc. (or successor) and
conducts no other business and which has no Indebtedness or trade payables
outstanding other than Lexus Dealership Indebtedness Or Trade Payables.


 


“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, any lease in the nature
thereof, any option or other agreement to sell or give a security interest in
and any filing of an agreement to give any financing statement under the
Uniform Commercial Code (or equivalent statutes) of any jurisdiction.


 


“Manufacturer”
means a vehicle manufacturer which is a party to a dealership or national
framework franchise agreement with the Company or a Restricted Subsidiary of
the Company.


 


“Net
Income” means, with respect to any specified Person, the net income (loss)
of such Person, determined in accordance with GAAP and before any reduction in
respect of preferred stock dividends, excluding, however: (i) any gain (or
loss), together with any related provision for taxes on such gain (or loss),
realized in connection with: (A) any Asset Sale; or (B) the disposition of any
securities by such Person or any of its Restricted Subsidiaries or the
extinguishment of any Indebtedness of such Person or any of its Restricted
Subsidiaries; and (ii) any extraordinary gain (or loss), together with any
related provision for taxes on such extraordinary gain (or loss).


 


“Net
Proceeds” means the aggregate cash proceeds received by the Company or any
of its Restricted Subsidiaries in respect of any Asset Sale (including, without
limitation, any cash received upon the sale or other disposition of any
non-cash consideration received in any Asset Sale, but only as and when
received), in each case net of (i) the direct costs relating to such Asset
Sale, including, without limitation, legal, accounting and investment banking
fees, and sales commissions, recording fees, title transfer fees, appraiser
fees, cost of preparation of assets for sale, and any relocation expenses
incurred as a result of the Asset Sale, (ii) taxes paid or payable as a result
of the Asset Sale, in each case, after taking into account any available tax
credits or deductions and any tax sharing arrangements, (iii) amounts required
to be applied to the repayment of Indebtedness secured by a Lien on the asset
or assets that were the subject of such Asset Sale, (iv) all pro rata
distributions and other pro rata payments required to be made to minority
interest holders in Restricted Subsidiaries of the Company or joint ventures as
a result of such Asset Sale, and (v) any reserve for adjustment in respect of
the sale price of such asset or assets established in accordance with GAAP.


 


“Non-Recourse
Debt” means Indebtedness: (i) as to which neither the Company nor any of its
Restricted Subsidiaries (a) provides credit support of any kind (including any
undertaking, agreement or instrument that would constitute Indebtedness), (b)
is directly or indirectly liable as a guarantor or otherwise or (c) constitutes
the lender; (ii) no default with respect to which (including any rights that
the holders of the Indebtedness may have to take enforcement action against an
Unrestricted Subsidiary) would permit upon notice, lapse of time or both any
holder of any other Indebtedness (other than the notes) of the Company or any
of its Restricted Subsidiaries to declare a default on such other Indebtedness
or cause the payment of the Indebtedness to be accelerated or payable prior to
its stated maturity; and (iii) as to which the lenders have been notified in
writing (which may be by the terms of the instrument evidencing such
Indebtedness) that they will not have any recourse to the stock (other than the
stock of an


 


11

















 


Unrestricted Subsidiary pledged by the
Company or any of its Restricted Subsidiaries) or assets of the Company or any
of its Restricted Subsidiaries.


 


“Non-U.S.
Person” means a Person who is not a U.S. Person.


 


“Notes”
has the meaning assigned to it in the preamble to this Indenture. The Initial
Notes and the Additional Notes shall be treated as a single class for all
purposes under this Indenture.


 


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


 


“Offering”
means the offering of the Notes by the Company.


 


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


 


“Officers’
Certificate” means a certificate signed on behalf of the Company by two
Officers of the Company, one of whom must be the principal executive officer,
the principal financial officer, the treasurer or the principal accounting
officer of the Company, that meets the requirements of Section 13.05 hereof.


 


“Opinion
of Counsel” means an opinion from legal counsel that meets the requirements
of Section 13.05 hereof. The counsel may be an employee of or counsel to the
Company or any Subsidiary of the Company.


 


“Participant”
means, with respect to the Depositary, Euroclear or Clearstream, a Person who
has an account with the Depositary, Euroclear or Clearstream, respectively
(and, with respect to DTC, shall include Euroclear and Clearstream).


 


“Permitted
Business” means any business that derives a majority of its revenues from
the business engaged in by the Company and its Restricted Subsidiaries on the
date of original issuance of the Notes and/or activities that are reasonably
similar, ancillary, incidental, complementary or related to, or a reasonable
extension, development or expansion of, the businesses in which the Company and
its Restricted Subsidiaries are engaged on the date of original issuance of the
Notes.


 


“Permitted
Holder” means each of (i) Asbury Automotive Holdings L.L.C., so long as
100% of its Equity Interests are beneficially owned, directly or indirectly, by
the entities described in clauses (ii) and (iii); (ii) Ripplewood Investments
L.L.C. (“Ripplewood”) and entities which are Affiliates of Ripplewood
(without regard to the proviso in the definition of Affiliate), so long as
Ripplewood is the beneficial owner of more than 50% of the Voting Stock of, or
otherwise controls, such entities; and (iii) Freeman Spogli & Co. and
entities which are Affiliates of Freeman Spogli (without regard to the proviso
in the definition of Affiliate), so long as Freeman Spogli & Co. is the
beneficial owner of more than 50% of the Voting Stock of, or otherwise
controls, such entities.


 


12

















 


“Permitted
Investments” means (i) any Investment in the Company or in a Restricted Subsidiary
of the Company; (ii) any Investment in cash or Cash Equivalents; (iii) any
Investment by the Company or any Restricted Subsidiary of the Company in a
Person, if as a result of such Investment: (A) such Person becomes a Restricted
Subsidiary of the Company; or (B) 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 Restricted Subsidiary of the
Company; (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 4.10 hereof; (v) any Investment to the extent made in exchange for
the issuance of Equity Interests (other than Disqualified Stock) of the
Company; (vi) Hedging Obligations; (vii) Investments in prepaid expenses,
negotiable instruments held for collection and lease, utility and workers’
compensation, performance and other similar deposits; (viii) transactions with
officers, directors and employees of the Company or any of its Restricted
Subsidiaries entered into in the ordinary course of business (including
compensation, employee benefit or indemnity arrangements with any such officer,
director or employee) and consistent with past business practices; (ix) any
Investment consisting of a guarantee permitted under Section 4.09 hereof; (x)
Investments consisting of non-cash consideration received in the form of
securities, notes or similar obligations in connection with dispositions of
obsolete assets or assets damaged in the ordinary course of business and
permitted pursuant to this Indenture; (xi) advances, loans or extensions of
credit to suppliers in the ordinary course of business by the Company or any of
its Restricted Subsidiaries; (xii) Investments (including debt obligations)
received in connection with the bankruptcy or reorganization of suppliers and
customers and in settlement of delinquent obligations of, and other disputes
with, customers and suppliers arising in the ordinary course of business;
(xiii) loans and advances to employees made in the ordinary course of business
not to exceed $2.5 million in the aggregate at any time outstanding; (xiv)
payroll, travel and similar advances to cover matters that are expected at the
time of such advances ultimately to be treated as expenses for accounting
purposes and that are made in the ordinary course of business; (xv) Investments
in any Person to the extent such Investment existed on date of this Indenture
and any Investment that replaces, refinances or refunds such an Investment,
provided that the new Investment is in an amount that does not exceed that
amount replaced, refinanced or refunded and is made in the same Person as the
Investment replaced, refinanced or refunded; (xvi) trade receivables and
prepaid expenses, in each case arising in the ordinary course of business;
provided that such receivables and prepaid expenses would be recorded as assets
in accordance with GAAP; and (xvii) other Investments in any Person having an
aggregate fair market value, when taken together with all other Investments
made pursuant to this clause (xvii) since the date of this Indenture not to
exceed $15.0 million.


 


“Permitted
Junior Securities” means (i) Equity Interests in the Company or any
Guarantor; or (ii) debt securities that are subordinated to all Senior Debt
(and any debt securities issued in exchange for Senior Debt) to substantially
the same extent as, or to a greater extent than, the Notes and the Subsidiary
Guarantees are subordinated to Senior Debt under this Indenture.


 


“Permitted
Liens” means (i) Liens of the Company or any of its Restricted Subsidiaries
securing Senior Debt that was permitted by the terms of this Indenture to be
incurred; (ii) Liens upon any property or assets of the Company or any of its
Restricted Subsidiaries, now owned or hereafter acquired, which secures any
Indebtedness that ranks pari passu with
or subordinate to the Notes; provided that
(A) if such Lien secures Indebtedness which is pari
passu with the Notes, the Notes are secured on an equal and ratable
basis with the Indebtedness so secured until such time as such Indebtedness is
no longer secured by a Lien, or


 


13

















 


(B) if such Lien secures Indebtedness which
is subordinated to the Notes, any such Lien shall be subordinated to a Lien
granted to the holders of the Notes in the same collateral as that securing
such Lien to the same extent as such subordinated Indebtedness is subordinated
to the Notes; (iii) Liens in favor of the Company or any of its Restricted
Subsidiaries; (iv) Liens on property of a Person existing at the time such
Person is merged with or into or consolidated with the Company or any
Subsidiary thereof; provided that
such Liens were in existence prior to the contemplation of such merger or
consolidation and do not extend to any assets other than those of the Person
merged into or consolidated with the Company or such Subsidiary; (v) Liens on
property existing at the time of acquisition of the property by the Company or
any Subsidiary of the Company, provided that
such Liens were in existence prior to the contemplation of such acquisition;
(vi) Liens to secure the performance of statutory obligations, surety or appeal
bonds, performance bonds or other obligations of a like nature incurred in the
ordinary course of business; (vii) Liens to secure Indebtedness (including
Capital Lease Obligations) permitted by clause (v) of the definition of
Permitted Debt; (viii) Liens existing on the date of this Indenture; (ix) Liens
for taxes, assessments or governmental charges or claims that are not yet
delinquent or that are being contested in good faith by appropriate proceedings
promptly instituted and diligently concluded, provided
that any reserve or other appropriate provision as is required in
conformity with GAAP has been made therefore; and (x) Liens incurred in the
ordinary course of business of the Company or any Restricted Subsidiary of the
Company with respect to obligations that do not exceed $10.0 million at any one
time outstanding.


 


“Permitted
Refinancing Indebtedness” means any Indebtedness of the Company or any of
its Restricted Subsidiaries issued to Refinance other Indebtedness of the
Company or any of its Restricted Subsidiaries (other than intercompany
Indebtedness); provided that: (i) the principal amount (or accreted value, if
applicable) of such Permitted Refinancing Indebtedness does not exceed the
principal amount (or accreted value, if applicable) of the Indebtedness being
Refinanced (plus all accrued interest on the Indebtedness and the amount of all
expenses and premiums incurred in connection therewith); (ii) such Permitted
Refinancing Indebtedness has a final maturity date later than the final
maturity date of, and has a Weighted Average Life to Maturity equal to or
greater than the Weighted Average Life to Maturity of, the Indebtedness being
Refinanced; (iii) if the Indebtedness being Refinanced is subordinated in right
of payment to the Notes, such Permitted Refinancing Indebtedness has a final
maturity date later than the final maturity date of, and is subordinated in
right of payment to, the notes on terms at least as favorable to the Holders of
Notes as those contained in the documentation governing the Indebtedness being
Refinanced; and (iv) such Indebtedness is incurred either by the Company or by
the Restricted Subsidiary who is the obligor on the Indebtedness being
Refinanced.


 


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


 


“Private
Placement Legend” means the legend set forth in Section 2.06(g)(i) to be
placed on all Notes issued under this Indenture except where otherwise
permitted by the provisions of this Indenture.


 


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


 


“Refinance”
means, in respect of any Indebtedness, to refinance, extend, renew, refund,
repay, prepay, redeem, defease or retire, or to issue other Indebtedness in
exchange or


 


14

















 


replacement for, such Indebtedness. “Refinanced”
and “Refinancing” shall have correlative meanings.


 


“Registration
Default” has the meaning provided in the Registration Rights Agreement.


 


“Registration
Default Period” has the meaning provided in the Registration Rights
Agreement.


 


“Registration
Rights Agreement” means the Exchange and Registration Rights Agreement,
dated as of December 23, 2003, and among the Company and the other parties
named on the signature pages thereof, as such agreement may be amended,
modified or supplemented from time to time and, with respect to any Additional
Notes, one or more registration rights agreements between the Company and the
other parties thereto, as such agreement(s) may be amended, modified or
supplemented from time to time, relating to rights given by the Company to the
purchasers of Additional Notes to register such Additional Notes under the
Securities Act.


 


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


 


“Regulation
S Global Note” means a global Note bearing the Private Placement Legend and
deposited with or on behalf of the Depositary and registered in the name of the
Depositary or its nominee, issued in a denomination equal to the outstanding
principal amount of the Notes initially sold in reliance on Rule 903 of
Regulation S.


 


“Regulation
S Permanent Global Note” means a permanent global Note in the form of
Exhibit A2 hereto bearing the Global Note Legend and Private Placement Legend
and deposited with or on behalf of and registered in the name of the Depositary
or its nominee, issued in a denomination equal to the outstanding principal
amount of the Regulation S Temporary Global Note upon expiration of the Restricted
Period.


 


“Regulation
S Temporary Global Note” means a temporary global Note in the form of
Exhibit A2 hereto bearing the Private Placement Legend and deposited with or on
behalf of and registered in the name of the Depositary or its nominee, issued in
a denomination equal to the outstanding principal amount of the Notes initially
sold in reliance on Rule 903 of Regulation S.


 


“Replacement
Assets” means (x) properties and assets (other than cash or any Capital
Stock or other security) that will be used in a Permitted Business of the
Company and its Restricted Subsidiaries or (y) Capital Stock of any Person that
will become on the date of acquisition thereof a Restricted Subsidiary as a
result of such Acquisition and that is involved principally in Permitted
Businesses.


 


“Representative”
means the indenture trustee or other trustee, agent or representative for any
Senior Debt.


 


“Responsible
Officer,” when used with respect to the Trustee, means any officer within
the Corporate Trust Administration of the Trustee (or any successor group of
the Trustee) including any vice president, assistant vice president, assistant
secretary, assistant treasurer, trust officer or any other officer of the
Trustee customarily performing functions similar to those


 


15

















 


performed by any of the above designated
officers and also means, with respect to a particular corporate trust matter,
any other officer to whom such matter is referred because of his knowledge of
and familiarity with the particular subject and who shall have direct
responsibility for the administration of this Indenture.


 


“Restricted
Definitive Note” means a Definitive Note bearing the Private Placement
Legend.


 


“Restricted
Global Note” means a Global Note bearing the Private Placement Legend.


 


“Restricted
Investment” means an Investment other than a Permitted Investment.


 


“Restricted
Period” means the 40-day distribution compliance period as defined in
Regulation S.


 


“Restricted
Subsidiary” of a Person means any Subsidiary of the referent Person that is
not an Unrestricted Subsidiary.


 


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


 


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


 


“Rule
903” means Rule 903 promulgated under the Securities Act.


 


“Rule
904” means Rule 904 promulgated the Securities Act.


 


“SEC”
means the Securities and Exchange Commission.


 


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


 


“Senior
Debt” means: (i) all Indebtedness of the Company or any Guarantor
outstanding under Credit Facilities, and all Hedging Obligations with respect
thereto, and under Floor Plan Facilities; (ii) any other Indebtedness of the
Company or any Guarantor permitted to be incurred under the terms of this
Indenture; and (iii) all Obligations with respect to the items listed in the
preceding clauses (i) and (ii); unless in the case of clauses (i) and (ii), the
instrument under which such Indebtedness is incurred expressly provides that it
is on a parity with or subordinated in right of payment to the Notes or any
Subsidiary Guarantee, as the case may be.


 


Notwithstanding
anything to the contrary in the preceding paragraph, Senior Debt will not
include:  (a) any liability for federal,
state, local or other taxes owed or owing by the Company; (b) any intercompany
Indebtedness of the Company or any of its Restricted Subsidiaries owing to the
Company or any of its Affiliates; (c) any trade payables; or (d) the portion of
any Indebtedness that is incurred in violation of this Indenture.


 


“Senior
Subordinated Indebtedness” means, with respect to any Person, the Notes and
the Existing Senior Subordinated Notes (in the case of the Company), the
Subsidiary Guarantees and the Existing Senior Subordinated Notes Guarantees (in
the case of a Guarantor), and any other Indebtedness of such Person that
specifically provides that such Indebtedness is to rank pari passu with the Notes, the Existing
Senior Subordinated Notes or such Subsidiary


 


16

















 


Guarantee or Existing Senior Subordinated
Notes Guarantee, as the case may be, in right of payment and is not
subordinated by its terms in right of payment to any Indebtedness or other
obligation of such Person which is not Senior Debt of such Person.


 


“Shelf
Registration Statement” means the Shelf Registration Statement as defined
in the Registration Rights Agreement.


 


“Significant
Subsidiary” means any Restricted 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 on the date of
this Indenture.


 


“Special
Interest” means special interest payable to Holders of Notes following the
occurrence of a Registration Default in an amount equal to $.05 per week per
$1,000 principal amount of Notes, and in an amount increasing by an additional
$.05 per week per $1,000 principal amount of Notes with respect to each
subsequent 90 days of the Registration Default Period until all Registration Defaults
have been cured, up to a maximum amount of Special Interest for all
Registration Defaults of $.50 per week per $1,000 principal amount of Notes as
described under Section 2 of the Registration Rights Agreement.


 


“Stated
Maturity” means, with respect to any installment of interest or principal
on any series of Indebtedness, the date on which the payment of interest or
principal was scheduled to be paid in the original documentation governing such
Indebtedness, but excluding any provision providing for any contingent
obligations to repay, redeem or repurchase any such interest or principal prior
to the date originally scheduled for the payment thereof.


 


“Subsidiary”
means, with respect to any specified Person (i) any corporation, limited
liability company, association or other business entity whether now existing or
hereafter formed or acquired of which more than 50% 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 of the
corporation, association or other business entity is at the time owned or
controlled, directly or indirectly, by that Person or one or more of the other
Subsidiaries of that Person (or a combination thereof); and (ii) any
partnership whether now existing or hereafter formed or acquired (A) the sole
general partner or the managing general partner of which is such Person or a
Subsidiary of such Person or (B) the only general partners of which are that
Person or one or more Subsidiaries of that Person (or any combination thereof).


 


“Subsidiary
Guarantee” means a Guarantee by a Guarantor of the Company’s obligations
with respect to the Notes.


 


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


 


“Toyota
Dealership Indebtedness Or Trade Payables” means (i) Indebtedness or trade
payables directly related to or incident to the operation of a franchised
Toyota retail dealership, and (ii) Indebtedness as to which all or
substantially all of the Company’s Domestic Subsidiaries are, directly or
indirectly, liable on the date hereof.


 


“Toyota
Dealership Subsidiary” means a Subsidiary of the Company which directly
operates a Toyota retail dealership under a franchise from Toyota Motor Sales
U.S.A.,


 


17

















 


Inc., (or successor) and conducts no other
business and which has no Indebtedness or trade payables outstanding other than
Toyota Dealership Indebtedness Or Trade Payables.


 


“Treasury
Rate” means the yield to maturity at a time of computation of United States
Treasury securities with a constant maturity (as compiled and published in the
most recent Federal Reserve Statistical Release H.15 (519) which has become
publicly available at least two business days prior to the Redemption Date (or,
if such Statistical Release is no longer published, any publicly available
source similar market data)) most nearly equal to the period from the Redemption
Date to March 15, 2009, provided,
however, that if the period from
the Redemption Date to March 15, 2009 is not equal to the constant maturity of
a United States Treasury security for which a weekly average yield is given,
the Treasury Rate shall be obtained by linear interpolation (calculated to the
nearest one-twelfth of a year) from the weekly average yields of United States
Treasury securities for which such yields are given, except that if the period
from the Redemption Date to March 15, 2009 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.


 


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


 


“Unrestricted
Global Note” means a permanent global Note substantially in the form of
Exhibit A1 attached hereto that bears the Global Note Legend and that has the
“Schedule of Exchanges of Interests in the Global Note” attached thereto, and
that is deposited with or on behalf of and registered in the name of the
Depositary, representing a series of Notes that do not bear the Private
Placement Legend.


 


“Unrestricted
Definitive Note” means one or more Definitive Notes that do not bear and
are not required to bear the Private Placement Legend.


 


“Unrestricted
Subsidiary” means any Subsidiary of the Company that is designated by the
Board of Directors of the Company as an Unrestricted Subsidiary pursuant to a
Board Resolution, and any Subsidiary of an Unrestricted Subsidiary, but only to
the extent that such Subsidiary: (i) has no Indebtedness other than
Non-Recourse Debt; (ii) is not party to any agreement, contract, arrangement or
understanding with the Company or any Restricted Subsidiary of the Company
unless the terms of any such agreement, contract, arrangement or understanding
are no less favorable to the Company or such Restricted Subsidiary than those
that might be obtained at the time from Persons who are not Affiliates of the
Company; (iii) is a Person with respect to which neither the Company nor any of
its Restricted Subsidiaries has any direct or indirect obligation (A) to
subscribe for additional Equity Interests or (B) to maintain or preserve such
Person’s financial condition or to cause such Person to achieve any specified
levels of operating results; (iv) has not guaranteed or otherwise directly or
indirectly provided credit support for any Indebtedness of the Company or any
of its Restricted Subsidiaries; and (v) has at least one director on its Board
of Directors that is not a director or executive officer of the Company or any
Restricted Subsidiary of the Company and has at least one executive officer that
is not a director or executive officer of the Company or any Restricted
Subsidiary of the Company.  Any
designation of a Subsidiary of the Company as an Unrestricted Subsidiary will
be evidenced to the Trustee by filing with the Trustee a certified copy of the
Board Resolution giving effect to such designation and an officers’ certificate
certifying that such designation


 


18

















 


complied with the preceding conditions and
was permitted by Section 4.07 hereof. If, at any time, any Unrestricted
Subsidiary would fail to meet the preceding requirements as an Unrestricted
Subsidiary, it will thereafter cease to be an Unrestricted Subsidiary for
purposes of this Indenture and any Indebtedness of such Subsidiary will be
deemed to be incurred by a Restricted Subsidiary of the Company as of such date
and, if such Indebtedness is not permitted to be incurred as of such date under
Section 4.09 hereof, the Company will be in default of such covenant. The Board
of Directors of the Company may at any time designate any Unrestricted
Subsidiary to be a Restricted Subsidiary, provided that such designation will
be deemed to be an incurrence of Indebtedness by a Restricted Subsidiary of the
Company of any outstanding Indebtedness of such Unrestricted Subsidiary and
such designation will only be permitted if: (x) such Indebtedness is permitted
under Section 4.09 hereof, calculated on a pro forma basis as if such
designation had occurred at the beginning of the four-quarter reference period;
and (y) no Default or Event of Default would occur or be in existence following
such designation.


 


“U.S.
Person” means a U.S. person as defined in Rule 902(k) under the Securities
Act.


 


“Voting
Stock” of any Person as of any date means the Capital Stock of such Person
that is at the time entitled to vote in the election of the Board of Directors
of such Person.


 


“Weighted
Average Life to Maturity” means, when applied to any Indebtedness at any
date, the number of years obtained by dividing: (i) the sum of the products
obtained by multiplying (A) the amount of each then remaining installment,
sinking fund, serial maturity or other required payments of principal,
including payment at final maturity, in respect of the Indebtedness, by (B) the
number of years (calculated to the nearest one-twelfth) that will elapse
between such date and the making of such payment; by (ii) the then outstanding
principal amount of such Indebtedness.


 


Section 1.02.            Other Definitions.


 


	
  Term

  	
   

  	
  Defined

  in Section

  
	
   

  	
   

  	
   

  
	
  “Affiliate
  Transaction”

  	
   

  	
  4.11

  
	
  “Asset
  Sale Offer”

  	
   

  	
  3.09

  
	
  “Authentication
  Order”

  	
   

  	
  2.02

  
	
  “Bankruptcy
  Law”

  	
   

  	
  4.01

  
	
  “Change
  of Control Offer”

  	
   

  	
  4.15

  
	
  “Change
  of Control Payment”

  	
   

  	
  4.15

  
	
  “Change
  of Control Payment Date”

  	
   

  	
  4.15

  
	
  “Covenant
  Defeasance”

  	
   

  	
  8.03

  
	
  “DTC”

  	
   

  	
  2.03

  
	
  “Event
  of Default”

  	
   

  	
  6.01

  
	
  “Excess
  Proceeds”

  	
   

  	
  4.10

  
	
  “incur”

  	
   

  	
  4.09

  
	
  “Legal
  Defeasance”

  	
   

  	
  8.02

  
	
  “Offer
  Amount”

  	
   

  	
  3.09

  
	
  “Offer
  Period”

  	
   

  	
  3.09

  
	
  “Payment
  Default”

  	
   

  	
  6.01

  



 


19

















 


	
  Term

  	
   

  	
  Defined

  in Section

  
	
   

  	
   

  	
   

  
	
  “Paying
  Agent”

  	
   

  	
  2.03

  
	
  “Permitted
  Debt”

  	
   

  	
  4.09

  
	
  “Purchase
  Date”

  	
   

  	
  3.09

  
	
  “Redemption
  Date”

  	
   

  	
  3.07

  
	
  “Registrar”

  	
   

  	
  2.03

  
	
  “Restricted
  Payments”

  	
   

  	
  4.07

  
	
  “Successor
  Company”

  	
   

  	
  5.01

  
	
  “Suspended
  Covenants”

  	
   

  	
  4.19

  



 


 


Section 1.03.            Incorporation by Reference of Trust Indenture
Act.


 


This
Indenture is subject to the mandatory provisions of the TIA, which are
incorporated by reference in and made a part of this Indenture.


 


The
following TIA terms used in this Indenture have the following meanings:


 


“indenture
securities” means the Notes;


 


“indenture
security Holder” means a Holder of a Note;


 


“indenture
to be qualified” means this Indenture;


 


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


 


“obligor”
on the Notes and the Subsidiary Guarantees means the Company and the Guarantors,
respectively, and any successor obligor upon the Notes and the Subsidiary
Guarantees, respectively.


 


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


 


Section 1.04.            Rules of Construction.


 


Unless
the context otherwise requires:


 


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


 


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


 


(c)           “or” is not exclusive;


 


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


 


20

















 


(e)           provisions apply to successive events and
transactions; and


 


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


 


ARTICLE 2


THE NOTES


 


Section 2.01.            Form and Dating.


 


(a)           General.  The Notes and the Trustee’s
certificate of authentication shall be substantially in the form of Exhibit A
hereto. The Notes may have notations, legends or endorsements required by law,
stock exchange rule or usage. Each Note shall be dated the date of its
authentication. The Notes shall be in denominations of $1,000 and integral
multiples thereof.


 


The
terms and provisions contained in the Notes shall constitute, and are hereby
expressly made, a part of this Indenture, and the Company, the Guarantors and
the Trustee, by their execution and delivery of this Indenture, expressly agree
to such terms and provisions and to be bound thereby. However, to the extent
any provision of any Note conflicts with the express provisions of this
Indenture, the provisions of this Indenture shall govern and be controlling.


 


(b)           Global Notes. 
Notes issued in global form shall be substantially in the form of
Exhibits A1 or A2 attached hereto (including the Global Note Legend thereon and
the “Schedule of Exchanges of Interests in the Global Note” attached thereto).
Notes issued in definitive form shall be substantially in the form of Exhibit
A1 attached hereto (but without the Global Note Legend thereon and without the
“Schedule of Exchanges of Interests in the Global Note” attached thereto). Each
Global Note shall represent such of the outstanding Notes as shall be specified
therein and each shall provide that it shall represent the aggregate principal
amount of outstanding Notes from time to time endorsed thereon and that the
aggregate principal amount of outstanding Notes represented thereby may from
time to time be reduced or increased, as appropriate, to reflect exchanges and
redemptions. Any endorsement of a Global Note to reflect the amount of any
increase or decrease in the aggregate principal amount of outstanding Notes
represented thereby shall be made by the Trustee or the Custodian, at the
direction of the Trustee, in accordance with instructions given by the Holder
thereof as required by Section 2.06 hereof.


 


(c)           Temporary Global Notes. 
Notes offered and sold in reliance on Regulation S shall be issued
initially in the form of the Regulation S Temporary Global Note, which shall be
deposited on behalf of the purchasers of the Notes represented thereby with the
Trustee, at its New York office, as custodian for the Depositary, and
registered in the name of the Depositary or the nominee of the Depositary for
the accounts of designated agents holding on behalf of Euroclear or Clearstream
Bank, duly executed by the Company and authenticated by the Trustee as
hereinafter provided. The Restricted Period shall be terminated upon the
receipt by the Trustee of (i) a written certificate from the Depositary,
together with copies of certificates from Euroclear and Clearstream Bank
certifying that they have received certification of non-United States
beneficial ownership of 100% of the aggregate principal amount of the
Regulation S Temporary Global Note (except to the extent of any beneficial
owners thereof who acquired an interest therein during the Restricted Period
pursuant to another exemption from registration under the Securities Act and
who will take delivery of a beneficial ownership interest in a 144A


 


21

















 


Global Note bearing a Private Placement Legend, all
as contemplated by Section 2.06(a)(ii) hereof), and (ii) an Officers’
Certificate from the Company. Following the termination of the Restricted
Period, beneficial interests in the Regulation S Temporary Global Note shall be
exchanged for beneficial interests in Regulation S Permanent Global Notes
pursuant to the Applicable Procedures. Simultaneously with the authentication
of Regulation S Permanent Global Notes, the Trustee shall cancel the Regulation
S Temporary Global Note. The aggregate principal amount of the Regulation S
Temporary Global Note and the Regulation S Permanent Global Notes may from time
to time be increased or decreased by adjustments made on the records of the
Trustee and the Depositary or its nominee, as the case may be, in connection
with transfers of interest as hereinafter provided.


 


(d)           Euroclear and Clearstream Procedures
Applicable. The provisions
of the “Operating Procedures of the Euroclear System” and “Terms and Conditions
Governing Use of Euroclear” and the “General Terms and Conditions of
Clearstream” and “Customer Handbook” of Clearstream shall be applicable to
transfers of beneficial interests in the Regulation S Temporary Global Note and
the Regulation S Permanent Global Notes that are held by Participants through Euroclear
or Clearstream.


 


Section 2.02.            Execution and Authentication.


 


An
Officer shall sign the Notes for the Company by manual or facsimile signature.


 


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


 


A
Note shall not be valid until authenticated by the manual signature of the
Trustee. The signature shall be conclusive evidence that the Note has been
authenticated under this Indenture.


 


On
the Issue Date, the Trustee shall, upon a written order of the Company signed
by an Officer (an “Authentication Order”), authenticate Notes for
original issue up to $200,000,000 in aggregate principal amount and, upon
delivery of any Authentication Order at any time and from time to time
thereafter, the Trustee shall authenticate Notes for original issue in an
aggregate principal amount specified in such Authentication Order.


 


The
Trustee may appoint an authenticating agent acceptable to the Company to
authenticate Notes. 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 an Agent to deal with Holders or an Affiliate of the Company.


 


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 (“Registrar”) and an office or
agency where Notes may be presented for payment (“Paying Agent”). The
Registrar shall keep a register of the Notes and of their transfer and
exchange. The Company may appoint one or more co-registrars and one or more
additional paying agents. The term “Registrar” includes any co-registrar and
the term


 


22

















 


“Paying Agent” includes any additional paying
agent. The Company may change any Paying Agent or Registrar without notice to
any Holder. The Company shall promptly notify the Trustee in writing of the
name and address of any Agent not a party to this Indenture. If the Company
fails to appoint or maintain another entity as Registrar or Paying Agent, the
Trustee shall act as such. The Company or any of its Subsidiaries may act as
Paying Agent or Registrar.


 


The
Company initially appoints The Depository Trust Company (“DTC”) to act
as Depositary with respect to the Global Notes.


 


The
Company initially appoints the Trustee to act as the Registrar and Paying Agent
and to act as Custodian with respect to the Global Notes.


 


Section 2.04.            Paying Agent to Hold Money in Trust.


 


The
Company shall require each Paying Agent other than the Trustee to agree in
writing that the Paying Agent will hold in trust for the benefit of Holders or
the Trustee all money held by the Paying Agent for the payment of principal,
premium, or Special Interest if any, or interest on the Notes, and will notify
the Trustee of any default by the Company in making any such payment. While any
such default continues, the Trustee may require a Paying Agent to pay all money
held by it to the Trustee. The Company at any time may require a Paying Agent
to pay all money held by it to the Trustee. Upon payment over to the Trustee,
the Paying Agent (if other than the Company or a Subsidiary) shall have no
further liability for the money. If the Company or a Subsidiary acts as Paying
Agent, it shall segregate and hold in a separate trust fund for the benefit of
the Holders all money held by it as Paying Agent. Upon any bankruptcy or reorganization
proceedings relating to the Company, the Trustee shall serve as Paying Agent
for the Notes.


 


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 all Holders and
shall otherwise comply with TIA § 312(a). If the Trustee is not the Registrar,
the Company shall furnish to the Trustee in writing at least seven 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 the Holders of Notes and
the Company shall otherwise comply with TIA § 312(a).


 


Section 2.06.            Transfer and Exchange.


 


(a)           Transfer and Exchange of Global Notes. A Global Note may not be transferred as a
whole except by the Depositary to a nominee of the Depositary, by a nominee of
the Depositary to the Depositary or to another nominee of the Depositary, or by
the Depositary or any such nominee to a successor Depositary or a nominee of
such successor Depositary. All Global Notes will be exchanged by the Company
for Definitive Notes if (i) the Company delivers to the Trustee notice from the
Depositary that it is unwilling or unable to continue to act as Depositary or
that it is no longer a clearing agency registered under the Exchange Act and,
in either case, a successor Depositary is not appointed by the Company within
120 days after the date of such notice from the Depositary or (ii) the Company
in its sole discretion determines that the Global Notes (in whole but not in
part) should be exchanged for Definitive Notes and delivers


 


23

















 


a written notice to such effect to the Trustee;
provided that in no event shall the Regulation S Temporary Global Note be
exchanged by the Company for Definitive Notes prior to the expiration of the
Restricted Period.  Upon the occurrence
of either of the preceding events in (i) or (ii) above, Definitive Notes shall
be issued in such names as the Depositary shall instruct the Trustee. Global
Notes also may be exchanged or replaced, in whole or in part, as provided in
Sections 2.07 and 2.10 hereof. Every Note authenticated and delivered in exchange
for, or in lieu of, a Global Note or any portion thereof, pursuant to this
Section 2.06 or Section 2.07 or 2.10 hereof, shall be authenticated and
delivered in the form of, and shall be, a Global Note. A Global Note may not be
exchanged for another Note other than as provided in this Section 2.06(a),
however, beneficial interests in a Global Note may be transferred and exchanged
as provided in Section 2.06(b), (c) or (f) hereof.


 


(b)           Transfer and Exchange of Beneficial Interests
in the Global Notes.  The transfer and exchange of beneficial
interests in the Global Notes shall be effected through the Depositary, in
accordance with the provisions of this Indenture and the Applicable Procedures.
Beneficial interests in the Restricted Global Notes shall be subject to the
restrictions set forth herein to the extent required by the Securities Act.
Transfers of beneficial interests in the Global Notes also shall require
compliance with either subparagraph (i) or (ii) below, as applicable, as well
as one or more of the other following subparagraphs, as applicable:


 


(i)            Transfer
of Beneficial Interests in the Same Global Note. Beneficial interests in any
Restricted Global Note may be transferred to Persons who take delivery thereof
in the form of a beneficial interest in the same Restricted Global Note in
accordance with the transfer restrictions set forth in the Private Placement
Legend; provided that prior to the expiration of the Restricted Period,
transfers of beneficial interests in the Temporary Regulation S Global Note may
not be made to a U.S. Person or for the account or benefit of a U.S. Person
(other than an Initial Purchaser). Beneficial interests in any Unrestricted
Global Note may be transferred to Persons who take delivery thereof in the form
of a beneficial interest in an Unrestricted Global Note. No written orders or
instructions shall be required to be delivered to the Registrar to effect the
transfers described in this Section 2.06(b)(i).


 


(ii)           All
Other Transfers and Exchanges of Beneficial Interests in Global Notes. In
connection with all transfers and exchanges of beneficial interests that are
not subject to Section 2.06(b)(i) above, the transferor of such beneficial
interest must deliver to the Registrar either (A) (1) a written order from a Participant
or an Indirect Participant given to the Depositary in accordance with the
Applicable Procedures directing the Depositary to credit or cause to be
credited a beneficial interest in another Global Note in an amount equal to the
beneficial interest to be transferred or exchanged and (2) instructions given
in accordance with the Applicable Procedures containing information regarding
the Participant account to be credited with such increase or (B) (1) a written
order from a Participant or an Indirect Participant given to the Depositary in
accordance with the Applicable Procedures directing the Depositary to cause to
be issued a Definitive Note in an amount equal to the beneficial interest to be
transferred or exchanged and (2) instructions given by the Depositary to the
Registrar containing information regarding the Person in whose name such
Definitive Note shall be registered to effect the transfer or exchange referred
to in (1) above; provided that in no event shall Definitive Notes be issued
upon the transfer or exchange of beneficial interests in the Regulation S
Temporary Global Note prior to the expiration of the Restricted Period.


 


24

















 


Upon
consummation of an Exchange Offer by the Company in accordance with Section
2.06(f) hereof, the requirements of this Section 2.06(b)(ii) shall be deemed to
have been satisfied upon receipt by the Registrar of the instructions contained
in the Letter of Transmittal delivered by the Holder of such beneficial interests
in the Restricted Global Notes. Upon satisfaction of all of the requirements
for transfer or exchange of beneficial interests in Global Notes contained in
this Indenture and the Notes or otherwise applicable under the Securities Act,
the Trustee shall adjust the principal amount of the relevant Global Note(s)
pursuant to Section 2.06(h) hereof.


 


(iii)          Transfer
of Beneficial Interests to Another Restricted Global Note. A beneficial
interest in any Restricted Global Note may be transferred to a Person who takes
delivery thereof in the form of a beneficial interest in another Restricted
Global Note if the transfer complies with the requirements of Section
2.06(b)(ii) above and the Registrar receives the following:


 


(A)          if
the transferee will take delivery in the form of a beneficial interest in the
144A Global Note, then the transferor must deliver a certificate in the form of
Exhibit B hereto, including the certifications in item (1) thereof;


 


(B)           if
the transferee will take delivery in the form of a beneficial interest in the
Regulation S Temporary Global Note or the Regulation S Global Note, then the
transferor must deliver a certificate in the form of Exhibit B hereto,
including the certifications in item (2) thereof; and


 


(C)           if
the transferee is an Institutional Accredited Investor who will take delivery
in the form of a beneficial interest in the 144A Global Note, then the
transferor must deliver a certificate in the form of Exhibit B hereto,
including the certifications and certificates and Opinion of Counsel required
by item (3) thereof, if applicable.


 


(iv)          Transfer
and Exchange of Beneficial Interests in a Restricted Global Note for Beneficial
Interests in the Unrestricted Global Note. A beneficial interest in any
Restricted Global Note may be exchanged by any holder thereof for a beneficial
interest in an Unrestricted Global Note or transferred to a Person who takes
delivery thereof in the form of a beneficial interest in an Unrestricted Global
Note if the exchange or transfer complies with the requirements of Section
2.06(b)(ii) above and:


 


(A)          such
exchange is effected pursuant to the Exchange Offer in accordance with the
Registration Rights Agreement and the holder of the beneficial interest to be
exchanged certifies in the applicable Letter of Transmittal that it is not (1)
a broker-dealer, (2) a Person participating in the distribution of the Exchange
Notes or (3) a Person who is an affiliate (as defined in Rule 144) of the
Company;


 


(B)           such
transfer is effected pursuant to the Shelf Registration Statement in accordance
with the Registration Rights Agreement;


 


25

















 


(C)           such
transfer is effected by a Broker-Dealer pursuant to the Exchange Offer
Registration Statement in accordance with the Registration Rights Agreement; or


 


(D)          the
Registrar receives the following:


 


(1)           if
the holder of such beneficial interest in a Restricted Global Note proposes to
exchange such beneficial interest for a beneficial interest in an Unrestricted
Global Note, a certificate from such holder in the form of Exhibit C hereto,
including the certifications in item (1)(a) thereof; or


 


(2)           if
the holder of such beneficial interest in a Restricted Global Note proposes to
transfer such beneficial interest to a Person who shall take delivery thereof
in the form of a beneficial interest in an Unrestricted Global Note, a
certificate from such holder in the form of Exhibit B hereto, including the
certifications in item (4) thereof;


 


and,
in each such case set forth in this subparagraph (D), if the Applicable
Procedures so require, an Opinion of Counsel to the effect that such exchange
or transfer is in compliance with the Securities Act and that the restrictions
on transfer contained herein and in the Private Placement Legend are no longer
required in order to maintain compliance with the Securities Act.


 


If
any such transfer is effected pursuant to subparagraph (B) or (D) above at a
time when an Unrestricted Global Note has not yet been issued, the Company
shall issue and, upon receipt of an Authentication Order in accordance with
Section 2.02 hereof, the Trustee shall authenticate one or more Unrestricted
Global Notes in an aggregate principal amount equal to the aggregate principal
amount of beneficial interests transferred pursuant to subparagraph (B) or (D)
above.


 


Beneficial
interests in an Unrestricted Global Note cannot be exchanged for, or
transferred to Persons who take delivery thereof in the form of, a beneficial
interest in a Restricted Global Note.


 


(c)           Transfer or Exchange of Beneficial Interests
for Definitive Notes.


 


(i)            Beneficial
Interests in Restricted Global Notes to Restricted Definitive Notes. If any
holder of a beneficial interest in a Restricted Global Note proposes to
exchange such beneficial interest for a Restricted Definitive Note or to
transfer such beneficial interest to a Person who takes delivery thereof in the
form of a Restricted Definitive Note, then, upon receipt by the Registrar of
the following documentation:


 


(A)          if
the holder of such beneficial interest in a Restricted Global Note proposes to
exchange such beneficial interest for a Restricted Definitive Note, a
certificate from such holder in the form of Exhibit C hereto, including the
certifications in item (2)(a) thereof;


 


26

















 


(B)           if
such beneficial interest is being transferred to a QIB in accordance with Rule
144A under the Securities Act, a certificate to the effect set forth in Exhibit
B hereto, including the certifications in item (1) thereof;


 


(C)           if
such beneficial interest is being transferred to a Non-U.S. Person in an
offshore transaction in accordance with Rule 903 or Rule 904 under the
Securities Act, a certificate to the effect set forth in Exhibit B hereto,
including the certifications in item (2) thereof;


 


(D)          if
such beneficial interest is being transferred pursuant to an exemption from the
registration requirements of the Securities 
Act in accordance with Rule 144 under the Securities Act, a certificate
to the effect set forth in Exhibit B hereto, including the certifications in
item (3)(a) thereof;


 


(E)           if
such beneficial interest is being transferred to an Institutional Accredited
Investor in reliance on an exemption from the registration requirements of the
Securities Act other than those listed in subparagraphs (B) through (D) above,
a certificate to the effect set forth in Exhibit B hereto, including the
certifications, certificates and Opinion of Counsel required by item (3)
thereof, if  applicable;


 


(F)           if
such beneficial interest is being transferred to the Company or any of its
Subsidiaries, a certificate to the effect set forth in Exhibit B hereto,
including the certifications in item (3)(b) thereof; or


 


(G)           if
such beneficial interest is being transferred pursuant to an effective registration
statement under the Securities Act, a certificate to the effect set forth in
Exhibit B hereto, including  the
certifications in item (3)(c) thereof,


 


the
Trustee shall cause the aggregate principal amount of the applicable Global
Note to be reduced accordingly pursuant to Section 2.06(h) hereof, and the
Company shall execute and the Trustee shall authenticate and deliver to the
Person designated in the instructions a Definitive Note in the appropriate
principal amount. Any Definitive Note issued in exchange for a beneficial
interest in a Restricted Global Note pursuant to this Section 2.06(c) shall be
registered in such name or names and in such authorized denomination or
denominations as the holder of such beneficial interest shall instruct the Registrar
through instructions from the Depositary and the Participant or Indirect
Participant. The Trustee shall deliver such Definitive Notes to the Persons in
whose names such Notes are so registered. Any Definitive Note issued in
exchange for a beneficial interest in a Restricted Global Note pursuant to this
Section 2.06(c)(i) shall bear the Private Placement Legend and shall be subject
to all restrictions on transfer contained therein.


 


(ii)           Beneficial
Interests in Regulation S Temporary Global Note to Definitive Notes.
Notwithstanding Sections 2.06(c)(i)(A) and (C) hereof, a beneficial interest in
the Regulation S Temporary Global Note may not be exchanged for a Definitive
Note or transferred to a Person who takes delivery thereof in the form of a Definitive
Note prior to the expiration of the Restricted Period, except in the case of a


 


27

















 


transfer
pursuant to an exemption from the registration requirements of the Securities
Act other than Rule 903 or Rule 904.


 


(iii)          Beneficial
Interests in Restricted Global Notes to Unrestricted Definitive Notes. A holder
of a beneficial interest in a Restricted Global Note may exchange such
beneficial interest for an Unrestricted Definitive Note or may transfer such beneficial
interest to a Person who takes delivery thereof in the form of an Unrestricted
Definitive Note only if:


 


(A)          such
exchange or transfer is effected pursuant to the Exchange Offer in accordance
with the Registration Rights Agreement and the holder of such beneficial
interest, in the case of an exchange, or the transferee, in the case of a
transfer, certifies in the applicable Letter of Transmittal that it is not (1)
a broker-dealer, (2) a Person participating in the distribution of the Exchange
Notes or (3) a Person who is an affiliate (as defined in Rule 144) of the
Company;


 


(B)           such
transfer is effected pursuant to the Shelf Registration Statement in accordance
with the Registration Rights Agreement;


 


(C)           such
transfer is effected by a Broker-Dealer pursuant to the Exchange Offer
Registration Statement in accordance with the Registration Rights Agreement; or


 


(D)          the
Registrar receives the following:


 


(1)           if
the holder of such beneficial interest in a Restricted Global Note proposes to
exchange such beneficial interest for a Definitive Note that does not bear the
Private Placement Legend, a certificate from such holder in the form of Exhibit
C hereto, including the certifications in item (1)(b) thereof; or


 


(2)           if
the holder of such beneficial interest in a Restricted Global Note proposes to
transfer such beneficial interest to a Person who shall take delivery thereof
in the form of a Definitive Note that does not bear the Private Placement
Legend, a certificate from such holder in the form of Exhibit B hereto,
including the certifications in item (4) thereof;


 


and,
in each such case set forth in this subparagraph (D), if the Applicable
Procedures so require, an Opinion of Counsel to the effect that such exchange
or transfer is in compliance with the Securities Act and that the restrictions
on transfer contained herein and in the Private Placement Legend are no longer
required in  order to maintain
compliance with the Securities Act.


 


(iv)          Beneficial
Interests in Unrestricted Global Notes to Unrestricted Definitive Notes. If any
holder of a beneficial interest in an Unrestricted Global Note proposes to
exchange such beneficial interest for a Definitive Note or to transfer such
beneficial interest to a Person who takes delivery thereof in the form of a Definitive
Note,


 


28

















 


then,
upon satisfaction of the conditions set forth in Section 2.06(b)(ii) hereof,
the Trustee shall cause the aggregate principal amount of the applicable Global
Note to be reduced accordingly pursuant to Section 2.06(h) hereof, and the
Company shall execute and the Trustee shall authenticate and deliver to the
Person designated in the instructions a Definitive Note in the appropriate
principal amount. Any Definitive Note issued in exchange for a beneficial
interest pursuant to this Section 2.06(c)(iii) shall be registered in such name
or names and in such authorized denomination or denominations as the holder of
such beneficial interest shall instruct the Registrar through instructions from
the Depositary and the Participant or Indirect Participant. The Trustee shall
deliver such Definitive Notes to the Persons in whose names such Notes are so
registered. Any Definitive Note issued in exchange for a beneficial interest
pursuant to this Section 2.06(c)(iii) shall not bear the Private Placement
Legend.


 


(d)           Transfer and Exchange of Definitive Notes for
Beneficial Interests.


 


(i)            Restricted
Definitive Notes to Beneficial Interests in Restricted Global Notes. If any
Holder of a Restricted Definitive Note proposes to exchange such Note for a
beneficial interest in a Restricted Global Note or to transfer such Restricted
Definitive Notes to a Person who takes delivery thereof in the form of a
beneficial interest in a Restricted Global Note, then, upon receipt by the
Registrar of the following documentation:


 


(A)          if
the Holder of such Restricted Definitive Note proposes to exchange such Note
for a beneficial interest in a Restricted Global Note, a certificate from such
Holder in the form of Exhibit C hereto, including the certifications in item
(2)(b) thereof;


 


(B)           if
such Restricted Definitive Note is being transferred to a QIB in accordance
with Rule 144A under the Securities Act, a certificate to the effect set forth
in Exhibit B hereto, including the certifications in item (1) thereof;


 


(C)           if
such Restricted Definitive Note is being transferred to a Non-U.S. Person in an
offshore transaction in accordance with Rule 903 or Rule 904 under the
Securities Act, a certificate to the effect set forth in Exhibit B hereto,
including the certifications in item (2) thereof;


 


(D)          if
such Restricted Definitive Note is being transferred pursuant to an exemption
from the registration requirements of the Securities Act in accordance with
Rule 144 under the Securities Act, a certificate to the effect set forth in
Exhibit B hereto, including the certifications in item (3)(a) thereof;


 


(E)           if
such Restricted Definitive Note is being transferred to an Institutional
Accredited Investor in reliance on an exemption from the registration
requirements of the Securities Act other than those listed in subparagraphs (B)
through (D) above, a certificate to the effect set forth in Exhibit B hereto,
including the certifications, certificates and Opinion of Counsel required by
item (3) thereof, if applicable;


 


29

















 


(F)           if
such Restricted Definitive Note is being transferred to the Company or any of
its Subsidiaries, a certificate to the effect set forth in Exhibit B hereto,
including the certifications in item (3)(b) thereof; or


 


(G)           if
such Restricted Definitive Note is being transferred pursuant to an effective
registration statement under the Securities Act, a certificate to the effect
set forth in Exhibit B hereto, including the certifications in item (3)(c)
thereof,


 


the
Trustee shall cancel the Restricted Definitive Note, increase or cause to be
increased the aggregate principal amount of, in the case of clause (A) above,
the appropriate Restricted Global Note, in the case of clause (B) above, the
144A Global Note, in the case of clause (C) above, the Regulation S Global
Note, and in all other cases, the 144A Global Note.


 


(ii)           Restricted
Definitive Notes to Beneficial Interests in Unrestricted Global Notes. A Holder
of a Restricted Definitive Note may exchange such Note for a beneficial
interest in an Unrestricted Global Note or transfer such Restricted Definitive
Note to a Person who takes delivery thereof in the form of a beneficial
interest in an Unrestricted Global Note only if:


 


(A)          such
exchange or transfer is effected pursuant to the Exchange Offer in accordance
with the Registration Rights Agreement and the Holder, in the case of an
exchange, or the transferee, in the case of a transfer, certifies in the
applicable Letter of Transmittal that it is not (1) a broker-dealer, (2) a
Person participating in the distribution of the Exchange Notes or (3) a Person
who is an affiliate (as defined in Rule 144) of the Company;


 


(B)           such
transfer is effected pursuant to the Shelf Registration Statement in accordance
with the Registration Rights Agreement;


 


(C)           such
transfer is effected by a Broker-Dealer pursuant to the Exchange Offer
Registration Statement in accordance with the Registration Rights Agreement; or


 


(D)          the
Registrar receives the following:


 


(1)           if
the Holder of such Definitive Notes proposes to exchange such Notes for a
beneficial interest in the Unrestricted Global Note, a certificate from such
Holder in the form of Exhibit C hereto, including the certifications in item
(1)(c) thereof; or


 


(2)           if
the Holder of such Definitive Notes proposes to transfer such Notes to a Person
who shall take delivery thereof in the form of a beneficial interest in the
Unrestricted Global Note, a certificate from such Holder in the form of Exhibit
B hereto, including the certifications in item (4) thereof;


 


30

















 


and,
in each such case set forth in this subparagraph (D), if the Applicable
Procedures so require, an Opinion of Counsel to the effect that such exchange
or transfer is in compliance with the Securities Act and that the restrictions
on transfer contained herein and in the Private Placement Legend are no longer
required in order to maintain compliance with the Securities Act.


 


Upon satisfaction of the conditions of any of the
subparagraphs in this Section 2.06(d)(ii), the Trustee shall cancel the
Definitive Notes and increase or cause to be increased the aggregate principal
amount of the Unrestricted Global Note.


 


(iii)          Unrestricted
Definitive Notes to Beneficial Interests in Unrestricted Global Notes. A Holder
of an Unrestricted Definitive Note may exchange such Note for a beneficial  interest in an Unrestricted Global Note or
transfer such Definitive Notes to a Person who takes delivery thereof in the
form of a beneficial interest in an Unrestricted Global Note at any time. Upon
receipt of a request for such an exchange or transfer, the Trustee shall cancel
the applicable Unrestricted Definitive Note and increase or cause to be
increased the aggregate principal amount of one of the Unrestricted Global
Notes.


 


If any such exchange or transfer from a Definitive
Note to a beneficial interest is effected pursuant to subparagraphs (ii)(B),
(ii)(D) or (iii) above at a time when an Unrestricted Global Note has not yet
been issued, the Company shall issue and, upon receipt of an Authentication
Order in accordance with Section 2.02 hereof, the Trustee shall authenticate
one or more Unrestricted Global Notes in an aggregate principal amount equal to
the principal amount of Definitive Notes so transferred.


 


(e)           Transfer and Exchange of Definitive Notes for
Definitive Notes. Upon
request by a Holder of Definitive Notes and such Holder’s compliance with the
provisions of this Section 2.06(e), the Registrar shall register the transfer
or exchange of Definitive Notes. Prior to such registration of transfer or
exchange, the requesting Holder shall present or surrender to the Registrar the
Definitive Notes duly endorsed or accompanied by a written instruction of transfer
in form satisfactory to the Registrar duly executed by such Holder or by its
attorney, duly authorized in writing. In addition, the requesting Holder shall
provide any additional certifications, documents and information, as
applicable, required pursuant to the following provisions of this Section
2.06(e).


 


(i)            Restricted
Definitive Notes to Restricted Definitive Notes. Any Restricted Definitive Note
may be transferred to and registered in the name of Persons who take delivery
thereof in the form of a Restricted Definitive Note if the Registrar receives
the following:


 


(A)          if
the transfer will be made pursuant to Rule 144A under the Securities Act, then
the transferor must deliver a certificate in the form of Exhibit B hereto,
including the certifications in item (1) thereof;


 


(B)           if
the transfer will be made pursuant to Rule 903 or Rule 904, then the transferor
must deliver a certificate in the form of Exhibit B hereto, including the
certifications in item (2) thereof; and


 


31

















 


(C)           if
the transfer will be made pursuant to any other exemption from the registration
requirements of the Securities Act, then the transferor must deliver a
certificate in the form of Exhibit B hereto, including the certifications,
certificates and Opinion of Counsel required by item (3) thereof, if
applicable.


 


(ii)           Restricted
Definitive Notes to Unrestricted Definitive Notes. Any Restricted Definitive
Note may be exchanged by the Holder thereof for an Unrestricted Definitive Note
or transferred to a Person or Persons who take delivery thereof in the form of
an Unrestricted Definitive Note if:


 


(A)          such
exchange or transfer is effected pursuant to the Exchange Offer in accordance
with the Registration Rights Agreement and the Holder, in the case of an
exchange, or the transferee, in the case of a transfer, certifies in the
applicable Letter of Transmittal that it is not (1) a broker-dealer, (2) a
Person participating in the distribution of the Exchange Notes or (3) a Person
who is an affiliate (as defined in Rule 144) of the Company;


 


(B)           any
such transfer is effected pursuant to the Shelf Registration Statement in
accordance with the Registration Rights Agreement;


 


(C)           any
such transfer is effected by a Broker-Dealer pursuant to the Exchange Offer
Registration Statement in accordance with the Registration Rights Agreement; or


 


(D)          the
Registrar receives the following:


 


(1)           if
the Holder of such Restricted Definitive Notes proposes to exchange such Notes
for an Unrestricted Definitive Note, a certificate from such Holder in the form
of Exhibit C hereto, including the certifications in item (1)(d) thereof; or


 


(2)           if
the Holder of such Restricted Definitive Notes proposes to transfer such Notes
to a Person who shall take  delivery thereof
in the form of an Unrestricted Definitive Note, a certificate from such Holder
in the form of Exhibit B hereto, including the certifications in item (4)
thereof;


 


and,
in each such case set forth in this subparagraph (D), an Opinion of Counsel in
form reasonably acceptable to the Company to the effect that such exchange or
transfer is in compliance with the Securities Act and that the restrictions on
transfer contained herein and in the Private Placement Legend are no longer
required in order to maintain compliance with the Securities Act.


 


(iii)          Unrestricted
Definitive Notes to Unrestricted Definitive Notes. A Holder of Unrestricted
Definitive Notes may transfer such Notes to a Person who takes delivery thereof
in the form of an Unrestricted Definitive Note. Upon receipt of a request to
register such a transfer, the Registrar shall register the Unrestricted
Definitive Notes pursuant to the instructions from the Holder thereof.


 


32

















 


(f)            Exchange Offer. Upon the occurrence of the Exchange Offer
in accordance with the Registration Rights Agreement, the Company shall issue
and, upon receipt of an Authentication Order in accordance with Section 2.02,
the Trustee shall authenticate (i) one or more Unrestricted Global Notes in an
aggregate principal amount equal to the principal amount of the beneficial
interests in the Restricted Global Notes tendered for acceptance by Persons
that certify in the applicable Letters of Transmittal that (x) they are not
broker-dealers, (y) they are not participating in a distribution of the
Exchange Notes and (z) they are not affiliates (as defined in Rule 144) of the
Company, and accepted for exchange in the Exchange Offer and (ii) Definitive
Notes in an aggregate principal amount equal to the principal amount of the
Restricted Definitive Notes accepted for exchange in the Exchange Offer.
Concurrently with the issuance of such Notes, the Trustee shall cause the
aggregate principal amount of the applicable Restricted Global Notes to be
reduced accordingly, and the Company shall execute and the Trustee shall
authenticate and deliver to the Persons designated by the Holders of Definitive
Notes so accepted Definitive Notes in the appropriate principal amount.


 


(g)           Legends. The following legends shall appear on the face of all Global Notes
and Definitive Notes issued under this Indenture unless specifically stated
otherwise in the applicable provisions of this Indenture.


 


(i)            Private
Placement Legend.


 


(A)          Except
as permitted by subparagraph (B) below, each Global Note and each Definitive
Note (and all Notes issued in exchange therefor or substitution thereof) shall
bear the legend in substantially the following form:


 


“THE
NOTES EVIDENCED HEREBY HAVE NOT BEEN REGISTERED UNDER THE UNITED STATES
SECURITIES ACT OF 1933 (THE “SECURITIES ACT”) AND MAY NOT BE OFFERED, SOLD,
PLEDGED OR OTHERWISE TRANSFERRED EXCEPT (A) (1) TO A PERSON WHO THE SELLER
REASONABLY BELIEVES IS A QUALIFIED INSTITUTIONAL BUYER WITHIN THE MEANING OF
RULE 144A UNDER THE SECURITIES ACT PURCHASING FOR ITS OWN ACCOUNT OR FOR THE
ACCOUNT OF A QUALIFIED INSTITUTIONAL BUYER IN A TRANSACTION MEETING THE
REQUIREMENTS OF RULE 144A, (2) IN AN OFFSHORE TRANSACTION COMPLYING WITH RULE
903 OR RULE 904 OF REGULATION S UNDER THE SECURITIES ACT, (3) PURSUANT TO AN
EXEMPTION FROM REGISTRATION UNDER THE SECURITIES ACT PROVIDED BY RULE 144
THEREUNDER (IF AVAILABLE), (4) TO AN INSTITUTIONAL ACCREDITED INVESTOR IN A
TRANSACTION EXEMPT FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT OR (5)
PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT AND
(B) IN ACCORDANCE WITH ALL APPLICABLE SECURITIES LAWS OF THE STATES OF THE
UNITED STATES AND OTHER JURISDICTIONS.”


 


(B)           Notwithstanding
the foregoing, any Global Note or Definitive Note issued pursuant to
subparagraphs (b)(iv), (c)(iii), (c)(iv), (d)(ii), (d)(iii), (e)(ii), (e)(iii)
or (f) of this Section 2.06 (and all Notes issued in exchange therefor or
substitution thereof) shall not bear the Private Placement Legend.


 


(ii)           Global
Note Legend. Each Global Note shall bear a legend in substantially the
following form:


 


33

















 


“THIS
GLOBAL NOTE IS HELD BY THE DEPOSITARY (AS DEFINED IN THE INDENTURE GOVERNING
THIS NOTE) OR ITS NOMINEE IN CUSTODY FOR THE BENEFIT OF THE BENEFICIAL OWNERS
HEREOF, AND IS NOT TRANSFERABLE TO ANY PERSON UNDER ANY CIRCUMSTANCES EXCEPT
THAT (I) THE TRUSTEE MAY MAKE SUCH NOTATIONS HEREON AS MAY BE REQUIRED PURSUANT
TO SECTION 2.07 OF THE INDENTURE, (II) THIS GLOBAL NOTE MAY BE EXCHANGED IN
WHOLE BUT NOT IN PART PURSUANT TO SECTION 2.06(a) OF THE INDENTURE, (III) THIS
GLOBAL NOTE MAY BE DELIVERED TO THE TRUSTEE FOR CANCELLATION PURSUANT TO
SECTION 2.11 OF THE INDENTURE AND (IV) THIS GLOBAL NOTE MAY BE TRANSFERRED TO A
SUCCESSOR DEPOSITARY WITH THE PRIOR WRITTEN CONSENT OF THE COMPANY.”


 


(iii)          Regulation
S Temporary Global Note Legend. The Regulation S Temporary Global Note shall
bear a legend in substantially the following form:


 


“THE
RIGHTS ATTACHING TO THIS TEMPORARY REGULATION S GLOBAL NOTE, AND THE CONDITIONS
AND PROCEDURES GOVERNING ITS EXCHANGE FOR CERTIFICATED NOTES, ARE AS SPECIFIED
IN THE INDENTURE (AS DEFINED HEREIN). NEITHER THE HOLDER NOR THE BENEFICIAL
OWNERS OF THIS REGULATION S TEMPORARY GLOBAL NOTE SHALL BE ENTITLED TO RECEIVE
PAYMENT OF INTEREST HEREON.”


 


(h)           Cancellation and/or Adjustment of Global
Notes. At such time as all
beneficial interests in a particular Global Note have been exchanged for
Definitive Notes or a particular Global Note has been redeemed, repurchased or
canceled in whole and not in part, each such Global Note shall be returned to
or retained and canceled by the Trustee in accordance with Section 2.11 hereof.
At any time prior to such cancellation, if any beneficial interest in a Global
Note is exchanged for or transferred to a Person who will take delivery thereof
in the form of a beneficial interest in another Global Note or for Definitive
Notes, the principal amount of Notes represented by such Global Note shall be
reduced accordingly and an endorsement shall be made on such Global Note by the
Trustee or by the Depositary at the direction of the Trustee to reflect such
reduction; and if the beneficial interest is being exchanged for or transferred
to a Person who will take delivery thereof in the form of a beneficial interest
in another Global Note, such other Global Note shall be increased accordingly
and an endorsement shall be made on such Global Note by the Trustee or by the
Depositary at the direction of the Trustee to reflect such increase.


 


(i)            General Provisions Relating to Transfers and
Exchanges.


 


(i)            To
permit registrations of transfers and exchanges, the Company shall execute and
the Trustee shall authenticate Global Notes and Definitive Notes upon the
Company’s order or at the Registrar’s request.


 


(ii)           No
service charge shall be made to a holder of a beneficial interest in a Global
Note or to a Holder of a Definitive Note for any registration of transfer or
exchange, but the Company may require payment of a sum sufficient to cover any
transfer tax or similar governmental charge payable in connection therewith
(other than any such transfer taxes or similar governmental charge payable upon
exchange or transfer pursuant to Sections 2.10, 3.06, 3.09, 4.10, 4.15 and 9.05
hereof).


 


34

















 


(iii)          The
Registrar shall not be required to register the transfer of or exchange any
Note selected for redemption in whole or in part, except the unredeemed portion
of any Note being redeemed in part.


 


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


 


(v)           The
Company shall not be required (A) to issue, to register the transfer of or to
exchange any Notes during a period beginning at the opening of business 15 days
before the day of any selection of Notes for redemption under Section 3.02
hereof and ending at the close of business on the day of selection, (B) to
register the transfer of or to exchange any Note so selected for redemption in
whole or in part, except the unredeemed portion of any Note being redeemed in
part or (C) to register the transfer of or to exchange a Note between a record
date and the next succeeding Interest Payment Date.


 


(vi)          Prior
to due presentment for the registration of a transfer of any Note, the Trustee,
any Agent and the Company may deem and treat the Person in whose name any Note
is registered as the absolute owner of such Note for the purpose of receiving
payment of principal of and interest on such Notes and for all other purposes,
and none of the Trustee, any Agent or the Company shall be affected by notice
to the contrary.


 


(vii)         The
Trustee shall authenticate Global Notes and Definitive Notes in accordance with
the provisions of Section 2.02 hereof.


 


(viii)        All
certifications, certificates and Opinions of Counsel required to be submitted
to the Registrar pursuant to this Section 2.06 to effect a registration of
transfer or exchange may be submitted by facsimile.


 


(ix)           The
Trustee shall have no obligation or duty to monitor, determine or inquire as to
compliance with any restrictions on transfer imposed under this Indenture or
under applicable law with respect to any transfer of any interest in any Note
(including any transfers between or among Depositary Participants or Beneficial
Owners of interests 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, this Indenture, and
to examine the same to determine substantial compliance as to form with the
express requirements hereof.


 


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, upon receipt of an
Authentication Order, a replacement Security. 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


 


35

















 


Agent, the Registrar and any co-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
replacement Note is an additional obligation of the Company and shall be
entitled to all of the benefits of this Indenture equally and proportionately
with all other Notes duly issued hereunder.


 


Section 2.08.            Outstanding Notes.


 


The
Notes outstanding at any time are all the Notes authenticated by the Trustee
except for those canceled by it, those delivered to it for cancellation, those
reductions in the interest in a Global Note effected by the Trustee in
accordance with the provisions hereof, and those described in this Section as
not outstanding. Except as set forth in Section 2.09 hereof, a Note does not
cease to be outstanding because the Company or an Affiliate of the Company
holds the Note; however, Notes held by the Company or a Subsidiary of the
Company shall not be deemed to be outstanding for purposes of Section 3.07(b)
hereof.


 


If
a Note is replaced pursuant to Section 2.07 hereof, it ceases to be outstanding
unless the Trustee and the Company receive proof satisfactory to them that the
replaced Note is held by a bona fide purchaser.


 


If
the principal amount of any Note is considered paid under Section 4.01 hereof,
it ceases to be outstanding and interest on it ceases to accrue.


 


If
the Paying Agent (other than the Company, a Subsidiary or an Affiliate of any
thereof) segregates and holds in trust, in accordance with this Indenture, on a
redemption date or maturity date money sufficient to pay all principal and
interest payable on that date with respect to the Notes (or portions thereof)
to be redeemed or maturing, as the case may be, and the Paying Agent is not
prohibited from paying such money to the Holders on that date pursuant to the
terms of this Indenture, 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.            Treasury Notes.


 


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 considered as
though not outstanding, except that for the purposes of determining whether the
Trustee shall be protected in relying on any such direction, waiver or consent,
only Notes that a Responsible Officer of the Trustee actually knows are so
owned shall be so disregarded.


 


Section 2.10.            Temporary Notes.


 


Until
certificates representing Notes are ready for delivery, the Company may prepare
and the Trustee, upon receipt of an Authentication Order, shall authenticate
temporary Notes. Temporary Notes shall be substantially in the form of
certificated Notes but may have variations that the Company considers
appropriate for temporary Notes. Without unreasonable


 


36

















 


delay, the Company shall prepare and the
Trustee shall authenticate definitive Notes in exchange for temporary Notes.


 


Holders
of temporary Notes shall be entitled to all of the benefits of this Indenture.


 


Section 2.11.            Cancellation.


 


The
Company at any time may deliver Notes to the Trustee for cancellation. The
Registrar and 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 dispose of such Notes in its customary manner
(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 Company. Certification of
the disposition of all canceled Notes shall be delivered to the Company. The
Company may not issue new Notes to replace Notes that it has redeemed or paid
or that have been delivered to the Trustee for cancellation.


 


Section 2.12.            Defaulted Interest.


 


If
the Company defaults in a payment of interest on the Notes, it shall pay the
defaulted interest in any lawful manner plus, to the extent lawful, interest
payable on the defaulted interest, to the Persons who are Holders on a
subsequent special record date, in each case at the rate provided in the Notes
and in Section 4.01 hereof. The Company shall notify the Trustee in writing of
the amount of defaulted interest proposed to be paid on each Note and the date
of the proposed payment. The Company shall fix or cause to be fixed each such
special record date and payment date, provided that no such special record date
shall be less than 10 days prior to the related payment date for such defaulted
interest. At least 15 days before the special record date, the Company (or, upon
the written request of the Company, the Trustee in the name and at the expense
of the Company) shall mail or cause to be mailed to Holders a notice that
states the special record date, the related payment date and the amount of such
interest to be paid.


 


Section 2.13.            CUSIP Numbers.


 


The
Company in issuing the Notes may use “CUSIP” numbers (if then generally in use)
and, if so, the Trustee shall use “CUSIP” numbers in notices of redemption as a
convenience to Holders; provided 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 promptly notify the Trustee of any change in
the CUSIP numbers.  Additional Notes
shall be assigned the same CUSIP number or numbers as the Initial Notes unless
such Additional Notes are not fungible with the Initial Notes for United States
Federal income tax purposes.


 


37

















 


Section 2.14.            Issuance of Additional Notes.


 


The
Company shall be entitled, subject to its compliance with Section 4.09, to
issue Additional Notes under this Indenture which 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. The Initial Notes issued on the Issue Date, any
Additional Notes and all Exchange Notes or Private Exchange Notes issued in
exchange therefor shall be treated as a single class for all purposes under
this Indenture.


 


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;


 


(b)           the issue price, the issue date and the CUSIP
number of such Additional Notes; provided that no Additional Notes may be
issued at a price that would cause such Additional Notes to have “original
issue discount” within the meaning of Section 1273 of the Code; and


 


(c)           whether such Additional Notes shall be
transfer restricted notes and issued in the form of Initial Notes as set forth
in Section 2.02 this Indenture or shall be issued in the form of Exchange
Notes.


 


ARTICLE 3


REDEMPTION AND PREPAYMENT


 


Section 3.01.            Notices to Trustee.


 


If
the Company elects to redeem Notes pursuant to the optional redemption
provisions of Section 3.07 hereof, it shall furnish to the Trustee, at least 30
days but not more than 60 days before a redemption date, an Officers’
Certificate setting forth (i) the clause of this Indenture pursuant to which
the redemption shall occur, (ii) the redemption date, (iii) the principal
amount of Notes to be redeemed and (iv) the redemption price.


 


Section 3.02.            Selection of Notes to Be Redeemed.


 


If
less than all of the Notes are to be redeemed or purchased in an offer to
purchase at any time, the Trustee shall select the Notes to be redeemed or
purchased among the Holders of the Notes 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 in
accordance with any other method the Trustee deems fair and appropriate.  In the event of partial redemption by lot,
the particular Notes to be redeemed shall be selected, unless otherwise
provided herein, not less than 30 nor more than 60 days prior to the redemption
date by the Trustee from the outstanding Notes not previously called for
redemption.


 


The
Trustee shall promptly notify the Company in writing of the Notes selected for
redemption and, in the case of any Note selected for partial redemption, the
principal amount


 


38

















 


thereof to be redeemed. Notes and portions of
Notes selected shall be in amounts of $1,000 or whole multiples of $1,000;
except that if all of the Notes of a Holder are to be redeemed, the entire
outstanding amount of Notes held by such Holder, even if not a multiple of
$1,000, shall be redeemed. Except as provided in the preceding sentence,
provisions of this Indenture that apply to Notes called for redemption also
apply to portions of Notes called for redemption. The Trustee shall notify the
Company promptly of the Notes or portions of Notes to be redeemed.


 


Section 3.03.            Notice of Redemption.


 


Subject
to the provisions of Section 3.09 hereof, at least 30 days but not more than 60
days before a redemption date (except that a notice of redemption may be mailed
more than 60 days prior to the redemption date if the notice is issued in
connection with Article 8 or Article 12 hereof), the Company shall mail or
cause to be mailed, by first class mail, a notice of redemption to each Holder
whose Notes are to be redeemed at such Holder’s registered address.


 


The
notice shall identify the Notes to be redeemed, including applicable CUSIP
numbers, and shall state:


 


(a)           the redemption date;


 


(b)           the redemption price;


 


(c)           if any Note is being redeemed in part, the
portion of the principal amount of such Note to be redeemed and that, after the
redemption date upon surrender of such Note, a new Note or Notes in principal
amount equal to the unredeemed portion shall be issued upon cancellation of the
original Note;


 


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


 


(e)           that Notes called for redemption must be
surrendered to the Paying Agent to collect the redemption price;


 


(f)            that, unless the Company defaults in making
such redemption payment or the Paying Agent is prohibited from making such
payment pursuant to the terms of this Indenture, interest on Notes called for
redemption ceases to accrue on and after the redemption date;


 


(g)           the paragraph of the Notes and/or Section of
this Indenture pursuant to which the Notes called for redemption are being
redeemed; and


 


(h)           that no representation is made as to the
correctness or accuracy of the CUSIP number, if any, listed in such notice or
printed on the Notes.


 


At
the Company’s written request delivered at least 15 days prior to the date such
notice is to be given (unless a shorter period shall be acceptable to the
Trustee), the Trustee shall give the notice of redemption as prepared by the
Company in the Company’s name and at its expense.


 


39

















 


Section 3.04.            Effect of Notice of Redemption.


 


Once
notice of redemption is mailed in accordance with Section 3.03 hereof, Notes
called for redemption become irrevocably due and payable on the redemption date
at the redemption price stated in the notice. A notice of redemption may not be
conditional.


 


Section 3.05.            Deposit of Redemption Price.


 


One
Business Day prior to the redemption date, the Company shall deposit with the
Trustee or with the Paying Agent money sufficient to pay the redemption price
of and accrued interest on all Notes to be redeemed on that date. The Trustee
or the Paying Agent shall promptly return to the Company any money deposited
with the Trustee or the Paying Agent by the Company in excess of the amounts
necessary to pay the redemption price of, and accrued interest on, all Notes to
be redeemed.


 


If
the Company complies with the provisions of the preceding paragraph, on and
after the redemption date, interest shall cease to accrue on the Notes or the
portions of Notes called for redemption. If a Note is redeemed on or after an
interest record date but on or prior to the related interest payment date, then
any accrued and unpaid interest shall be paid to the Person in whose name such
Note was registered at the close of business on such record date. If any Note
called for redemption shall not be so paid upon surrender for redemption
because of the failure of the Company to comply with the preceding paragraph,
interest shall be paid on the unpaid principal, from the redemption date until
such principal is paid, and to the extent lawful on any interest not paid on
such unpaid principal, in each case at the rate provided in the Notes and in
Section 4.01 hereof.


 


Section 3.06.            Notes Redeemed in Part.


 


Upon
surrender of a Note that is redeemed in part, the Company shall issue and, upon
the Company’s written request, the Trustee shall authenticate for the Holder at
the expense of the Company a new Note equal in principal amount to the
unredeemed portion of the Note surrendered.


 


Section 3.07.            Optional Redemption.


 


(a)           On and after March 15, 2009, the Company
shall have the option to redeem all or a portion of the Notes, at the
redemption prices (expressed as percentages of principal amount) set forth
below plus accrued and unpaid interest and Special Interest thereon, if any, on
the Notes redeemed, to the applicable redemption date, if redeemed during the
twelve-month period beginning on March 15 of the years indicated below:


 




	
  Year

  	
   

  	
  Percentage

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  2009

  	
   

  	
  104.000

  	
  %

  
	
  2010

  	
   

  	
  102.667

  	
  %

  
	
  2011

  	
   

  	
  101.333

  	
  %

  
	
  2012 and thereafter

  	
   

  	
  100.000

  	
  %

  






 


 


(b)           Notwithstanding the provisions of clause (a)
of this Section 3.07, at any time on or prior to March 15, 2007, the Company
may on any one or more occasions redeem up


 


40

















 


to 35% of the aggregate principal amount of the
Notes originally issued at a redemption price equal to 108% of the aggregate
principal amount thereof, plus accrued and unpaid interest and Special Interest
thereon, if any, to the redemption date with the net cash proceeds of one or
more Equity Offerings provided that:


 


(i)            at
least 65% of the aggregate principal amount of the Notes originally issued
remains outstanding immediately after the occurrence of such redemption
(excluding Notes held by the Company or any of its Subsidiaries or Affiliates);
and


 


(ii)           the
redemption occurs within 45 days of the date of the closing of such Equity
Offering.


 


(c)           At any time prior to March 15, 2009, all or
part of the Notes may also be redeemed at the option of the Company, at a redemption
price equal to 100% of the principal amount thereof plus the Applicable Premium
as of, and accrued and unpaid interest and Special Interest thereon, if any, to
the date of redemption (the “Redemption Date”).


 


(d)           Any redemption pursuant to this Section 3.07
shall be made pursuant to the provisions of Sections 3.01 through 3.06 hereof.


 


Section 3.08.            Mandatory Redemption.


 


The
Company shall not be required to make mandatory redemption or sinking fund
payments with respect to the Notes.


 


Section 3.09.            Offer to Purchase by Application of Excess
Proceeds.


 


In
the event that, pursuant to Section 4.10 hereof, the Company shall be required
to commence an offer to all Holders (and to holders of the Existing Senior
Subordinated Notes and to holders of other Senior Subordinated Indebtedness of
the Company designated by the Company) to purchase Notes (and the Existing
Senior Subordinated Notes and such other Senior Subordinated Indebtedness of
the Company) (an “Asset Sale Offer”), it shall follow the procedures
specified below.


 


The
Company shall complete the Asset Sale Offer no earlier than 30 days and no
later than 60 days after notice of the Asset Sale Offer is provided to the
Holders or such later date as may be required by applicable law.


 


The
Asset Sale Offer shall remain open for a period of 20 Business Days following
its commencement, or longer to the extent that a longer period is required by
applicable law (the “Offer Period”). 
No later than five Business Days after the termination of the Offer
Period (the “Purchase Date”), the Company shall purchase the principal
amount of Notes required to be purchased pursuant to Section 4.10 hereof (the “Offer
Amount”) or, if less than the Offer Amount has been tendered, all Notes
tendered in response to the Asset Sale Offer. Payment for any Notes so
purchased shall be made in the same manner as interest payments are made.


 


If
the Purchase Date is on or after an interest record date and on or before the
related interest payment date, any accrued and unpaid interest shall be paid to
the Person in


 


41

















 


whose name a Note is registered at the close
of business on such record date, and no additional interest shall be payable to
Holders who tender Notes pursuant to the Asset Sale Offer.


 


Upon
the commencement of an Asset Sale Offer, the Company shall send, by first class
mail, a notice to the Trustee and each of the Holders, with a copy to the
Trustee. The notice shall contain all instructions and materials necessary to
enable such Holders to tender Notes pursuant to the Asset Sale Offer. The Asset
Sale Offer shall be made to all Holders. The notice, which shall govern the
terms of the Asset Sale Offer, shall state:


 


(a)           that the Asset Sale Offer is being made
pursuant to this Section 3.09 and Section 4.10 hereof and the length of time
the Asset Sale Offer shall remain open;


 


(b)           the Offer Amount, the purchase price and the
Purchase Date;


 


(c)           that any Note not tendered or accepted for
payment shall continue to accrete or accrue interest;


 


(d)           that, unless the Company defaults in making
such payment, any Note accepted for payment pursuant to the Asset Sale Offer
shall cease to accrete or accrue interest after the Purchase Date;


 


(e)           that Holders electing to have a Note purchased
pursuant to an Asset Sale Offer may elect to have Notes purchased in integral
multiples of $1,000 only;


 


(f)            that Holders electing to have a Note
purchased pursuant to any Asset Sale Offer shall be required to surrender the
Note, with the form entitled “Option of Holder to Elect Purchase” on the
reverse of the Note completed, or transfer by book-entry transfer, to the
Company, a depositary, if appointed by the Company, or a Paying Agent at the
address specified in the notice at least three days before the Purchase Date;


 


(g)           that Holders shall be entitled to withdraw
their election if the Company, the depositary or the Paying Agent, as the case
may be, receives, not later than the closing, a telegram, telex, facsimile
transmission or letter setting forth the name of the Holder, the principal
amount of the Note the Holder delivered for purchase and a statement that such
Holder is withdrawing his election to have such Note purchased;


 


(h)           that, if the aggregate principal amount of
Notes surrendered by Holders, holders of Existing Senior Subordinated Notes and
holders of other Senior Subordinated Indebtedness tendered exceeds the Offer
Amount, the Company shall select Notes, Existing Senior Subordinated Notes and
such other Senior Subordinated Indebtedness to be purchased on a pro rata basis
(with such adjustments as may be deemed appropriate by the Company so that only
Notes in denominations of $1,000, or integral multiples thereof, shall be
purchased); and


 


(i)            that Holders whose Notes were purchased only
in part shall be issued new Notes equal in principal amount to the unpurchased
portion of the Notes surrendered (or transferred by book-entry transfer).


 


On
or before the Purchase Date, the Company shall, to the extent lawful, accept
for payment, on a pro rata basis to the extent necessary, the Offer Amount of
Notes or portions


 


42

















 


thereof tendered pursuant to the Asset Sale
Offer, or if less than the Offer Amount has been tendered, all Notes tendered,
and shall deliver to the Trustee an Officers’ Certificate stating that such
Notes or portions thereof were accepted for payment by the Company in
accordance with the terms of this Section 3.09. The Company, the Depositary or
the Paying Agent, as the case may be, shall promptly (but in any case not later
than five days after the Purchase Date) mail or deliver to each tendering
Holder an amount equal to the purchase price of the Notes tendered by such
Holder and accepted by the Company for purchase, and the Company shall promptly
issue a new Note, and the Trustee, upon written request from the Company shall
authenticate and mail or deliver such new Note to such Holder, in a principal
amount equal to any unpurchased portion of the Note surrendered. Any Note not
so accepted shall be promptly mailed or delivered by the Company to the Holder
thereof. The Company shall publicly announce the results of the Asset Sale
Offer on the Purchase Date.


 


Other
than as specifically provided in this Section 3.09, any purchase pursuant to
this Section 3.09 shall be made pursuant to the provisions of Sections 3.01
through 3.06 hereof.


 


ARTICLE 4


COVENANTS


 


Section 4.01.            Payment of Notes.


 


The
Company shall pay or cause to be paid the principal of, premium, if any, and
interest on the Notes on the dates and in the manner provided in the Notes.
Principal, premium, if any, and interest shall be considered paid on the date
due if the Paying Agent, other than the Company or a Subsidiary thereof or an
Affiliate of any thereof, holds as of 10:00 a.m. Eastern Time on the due date
money deposited by the Company in immediately available funds and designated
for and sufficient to pay all principal, premium, if any, and interest then
due. The Company shall pay all Special Interest, if any, in the same manner on
the dates and in the amounts set forth in the Registration Rights Agreement.


 


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


 


The
Company shall pay interest (including post-petition interest in any proceeding
under any Bankruptcy Law) on overdue principal at the rate equal to 1% per
annum in excess of the then applicable interest rate on the Notes to the extent
lawful; it shall pay interest (including post-petition interest in any
proceeding under any Bankruptcy Law) on overdue installments of interest and
Special Interest (without regard to any applicable grace period) at the same
rate to the extent lawful.


 


Section 4.02.            Maintenance of Office or Agency.


 


The
Company shall maintain in the Borough of Manhattan, the City of New York, an
office or agency (which may be an office of the Trustee or an affiliate of the
Trustee, Registrar or co-registrar) where Notes may be surrendered for
registration of transfer or for exchange and where notices and demands to or
upon the Company in respect of the Notes and this Indenture may be served. The
Company shall give prompt written notice to the Trustee of the location, and
any change in the location, of such office or agency. If at any time the
Company shall fail to maintain any such required office or agency or shall fail
to furnish the Trustee with


 


43

















 


the address thereof, such presentations,
surrenders, notices and demands may be made or served at the Corporate Trust
Office of the Trustee.


 


The
Company may also from time to time designate one or more other offices or
agencies where the Notes may be presented or surrendered for any or all such
purposes and may from time to time rescind such designations; provided that no
such designation or rescission shall in any manner relieve the Company of its
obligation to maintain an office or agency in the Borough of Manhattan, the
City of New York for such purposes. The Company shall give prompt written
notice to the Trustee of any such designation or rescission and of any change
in the location of any such other office or agency.


 


The
Company hereby designates the Corporate Trust Office of the Trustee as one such
office or agency of the Company in accordance with Section 2.03.


 


Section 4.03.            Reports.


 


(a)           Whether or not required by the rules and
regulations of the SEC, so long as any Notes are outstanding, the Company shall
furnish to the Holders of Notes (i) all quarterly and annual financial
information that would be required to be contained in a filing with the SEC on
Forms 10-Q and 10-K if the Company were required to file such forms, including
a “Management’s Discussion and Analysis of Financial Condition and Results of
Operations” and, with respect to the annual information only, a report on the
annual financial statements by the Company’s certified independent accountants
and (ii) all current reports that would be required to be filed with the SEC on
Form 8-K if the Company were required to file such reports, in each case,
within the time periods specified in the SEC’s rules and regulations. In
addition, whether or not required by the SEC, the Company shall file a copy of
all the information and reports referred to in clauses (i) and (ii) hereof with
the SEC for public availability within the time periods specified in the SEC’s
rules and regulations (unless the SEC will not accept such a filing) and make
such information available to securities analysts and prospective investors
upon request.  The Company shall at all
times comply with TIA § 314(a).


 


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


 


(c)           If the Company has designated any of its
Subsidiaries as Unrestricted Subsidiaries, then the quarterly and annual
financial information required by clause (a) of this Section 4.03 shall include
a reasonably detailed presentation, either on the face of the financial
statements or in the footnotes thereto, and in Management’s Discussion and
Analysis of Financial Condition and Results of Operations, of the financial
condition and results of operations of the Company and its Restricted
Subsidiaries separate from the financial condition and results of operations of
the Unrestricted Subsidiaries of the Company.


 


(d)           Delivery of such reports, information and
documents to the Trustee is for informational purposes only and the Trustee’s
receipt of such shall not constitute constructive notice of any information
contained therein or determinable from information contained therein, including
the Company’s compliance with any of its covenants hereunder (as to which the
Trustee is entitled to rely exclusively on Officers’ Certificates).


 


44

















 


Section 4.04.            Compliance Certificate.


 


(a)           The Company and each Guarantor (to the extent
that such Guarantor is so required under the TIA) shall deliver to the Trustee,
within 90 days after the end of each fiscal year, an Officers’ Certificate
stating that a review of the activities of the Company and its Subsidiaries
during the preceding fiscal year has been made under the supervision of the
signing Officers with a view to determining whether the Company has kept,
observed, performed and fulfilled its obligations under this Indenture, and
further stating, as to each such Officer signing such certificate, that to the
best of his or her knowledge the Company has kept, observed, performed and
fulfilled each and every covenant contained in this Indenture and is not in
default in the performance or observance of any of the terms, provisions and
conditions of this Indenture (or, if a Default or Event of Default shall have
occurred, describing all such Defaults or Events of Default of which he or she
may have knowledge and what action the Company is taking or proposes to take
with respect thereto) and that to the best of his or her knowledge no event has
occurred and remains in existence by reason of which payments on account of the
principal of or interest, if any, on the Notes is prohibited or if such event
has occurred, a description of the event and what action the Company is taking
or proposes to take with respect thereto.


 


(b)           The Company shall, so long as any of the
Notes are outstanding, deliver to the Trustee, forthwith upon any Officer
becoming aware of any Default or Event of Default, an Officers’ Certificate
specifying such Default or Event of Default and what action the Company is
taking or proposes to take with respect thereto.


 


Section 4.05.            Payment of Taxes and Other Claims.


 


The
Company shall pay, and shall cause each of its Restricted Subsidiaries to pay,
prior to delinquency, all material taxes, assessments, and governmental levies
except such as are contested in good faith and by appropriate proceedings or
where the failure to effect such payment would not reasonably be expected to be
materially adverse to the interests of the Holders of the Notes.


 


Section 4.06.            Stay, Extension and Usury Laws.


 


The
Company and each of the Guarantors covenants (to the extent that it may
lawfully do so) that it shall not at any time insist upon, plead, or in any
manner whatsoever claim or take the benefit or advantage of, any stay,
extension or usury law wherever enacted, now or at any time hereafter in force,
that may affect the covenants or the performance of this Indenture; and the
Company and each of the Guarantors (to the extent that it may lawfully do so)
hereby expressly waives all benefit or advantage of any such law, and covenants
that it shall not, by resort to any such law, 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 has been
enacted.


 


Section 4.07.            Restricted Payments.


 


The
Company shall not, and shall not permit any of its Restricted Subsidiaries to,
directly or indirectly: (i) declare or pay any dividend on, or make any other
payment or distribution on account of, the Company’s or any of its Restricted
Subsidiaries’ Equity Interests (including, without limitation, any payment in
connection with any merger or consolidation


 


45

















 


involving the Company or any of
its Restricted Subsidiaries) or to the direct or indirect holders of the
Company’s or any of its Restricted Subsidiaries’ Equity Interests in their
capacity as such (other than dividends or distributions payable in (A) Equity
Interests (other than Disqualified Stock) of the Company or (B) to the Company
or a Restricted Subsidiary of the Company); (ii) purchase, redeem or otherwise
acquire or retire for value (including, without limitation, in connection with
any merger or consolidation involving the Company) any Equity Interests of the
Company or any direct or indirect parent of the Company (other than such Equity
Interests owned by the Company or any of its Restricted Subsidiaries); (iii)
make any payment on or with respect to, or purchase, redeem, defease or
otherwise acquire or retire for value any Indebtedness that is subordinated to
the Notes or the Subsidiary Guarantees, except a payment of interest or
principal at the Stated Maturity thereof; or (iv) make any Restricted
Investment (all such payments and other actions set forth in clauses (i)
through (iv) above being collectively referred to as “Restricted Payments”),
unless, at the time of and after giving effect to such Restricted Payment:


 


(a)           no Default shall have occurred and be
continuing or would occur as a consequence of such Restricted Payment; and


 


(b)           the Company would, after giving pro forma
effect thereto as if such Restricted Payment had been made at the beginning of
the applicable four-quarter period, have been permitted to incur at least $1.00
of additional Indebtedness pursuant to the Fixed Charge Coverage Ratio test set
forth in the first paragraph of Section 4.09 hereof, and


 


(c)           such Restricted Payment, together with the
aggregate amount of all other Restricted Payments made by the Company and its
Restricted Subsidiaries after the date of this Indenture (excluding Restricted
Payments permitted by clauses (ii), (iii) and (iv) of the next succeeding
paragraph), is less than the sum, without duplication, of: (i) 50% of the
Consolidated Net Income of the Company for the period (taken as one accounting
period) from the beginning of the fiscal quarter during which the Notes are
initially issued to the end of the Company’s most recently ended fiscal quarter
for which internal financial statements are available at the time of such
Restricted Payment (or, if such Consolidated Net Income for such period is a
deficit, less 100% of such deficit), plus (ii) 100% of the aggregate net cash
proceeds received by the Company since the date of this Indenture as a
contribution to its common equity capital or from the issue or sale of Equity
Interests of the Company (other than Disqualified Stock) or from the issue or
sale of convertible or exchangeable Disqualified Stock or convertible or
exchangeable debt securities of the Company that have been converted into or
exchanged for such Equity Interests (other than Equity Interests, Disqualified
Stock or debt securities sold to a Subsidiary of the Company), plus (iii) to
the extent that any Restricted Investment that was made after the date of this
Indenture is sold for cash or otherwise liquidated or repaid, purchased or
redeemed for cash, the lesser of (A) such cash (less the cost of disposition,
if any) and (B) the amount of such Restricted Investment, plus (iv) to the
extent that any Unrestricted Subsidiary of the Company is redesignated as a
Restricted Subsidiary after the date of this Indenture, the lesser of (A) the
fair market value of the Company’s Investment in such Subsidiary as of the date
of such redesignation and (B) such fair market value as of the date on which
such Subsidiary was originally designated as an Unrestricted Subsidiary.


 


So
long as no Default has occurred and is continuing or would be caused thereby
(except in the case of clause (i) of this paragraph), the preceding provisions
will not prohibit: (i) the payment of any dividend or distribution on, or
redemption of, Equity Interests, within 60 days after the date of declaration
or notice thereof, if at the date of declaration or the giving of


 


46

















 


such notice the payment would
have complied with the provisions of this Indenture, (ii) the redemption,
repurchase, retirement, defeasance or other acquisition of any subordinated
Indebtedness of the Company or any Guarantor or of any Equity Interests of the
Company, or the making of any Investment, in exchange for, or out of the net
cash proceeds of the substantially concurrent sale (other than to a Restricted
Subsidiary of the Company) of, or capital contribution in respect of, Equity
Interests of the Company (other than Disqualified Stock); provided that the amount of any such net
cash proceeds that are utilized for any such redemption, repurchase, retirement,
defeasance or other acquisition or any such Investment will be excluded from
clause (c)(ii) of the preceding paragraph, (iii) the defeasance, redemption,
repurchase or other acquisition of subordinated Indebtedness of the Company or
any Guarantor with the net cash proceeds from an incurrence of Permitted
Refinancing Indebtedness, (iv) the payment of any dividend or other payment or
distribution by a Restricted Subsidiary of the Company to the holders of its
Equity Interests on a pro rata basis, (v) repurchases of Equity Interests
deemed to occur upon exercise of stock options if those Equity Interests
represent all or a portion of the exercise price of those options, (vi) the
repurchase, redemption or other acquisition or retirement for value of any Equity
Interests of the Company or any Restricted Subsidiary of the Company (in the
event such Equity Interests are not owned by the Company or any of its
Restricted Subsidiaries) in an amount not to exceed $2.0 million in any fiscal
year, (vii) the purchase by the Company of fractional shares arising out of
stock dividends, splits or combinations or business combinations, or (viii)
Restricted Payments not to exceed $15.0 million under this clause (viii) in the
aggregate, plus, to the extent Restricted Payments made pursuant to this clause
(viii) are Investments made by the Company or any of its Restricted
Subsidiaries in any Person and such Investment is sold for cash or otherwise
liquidated or repaid, purchased or redeemed for cash, an amount equal to the lesser
of (A) such cash (less the cost of disposition, if any) and (B) the amount of
such Restricted Payment, provided, that the amount of such cash will be
excluded from clause (c)(iv) of the preceding paragraph.


 


The
amount of all Restricted Payments (other than cash) will be the fair market
value on the date of the Restricted Payment of the asset(s) or securities
proposed to be transferred or issued by the Company or such Restricted
Subsidiary, as the case may be, pursuant to the Restricted Payment. The fair
market value of any assets or securities that are required to be valued by this
Section 4.07 will be determined by the Board of Directors of the Company.


 


Section 4.08.            Dividend and Other Payment Restrictions
Affecting Restricted Subsidiaries.


 


The
Company shall not, and shall not permit any of its Restricted Subsidiaries to,
directly or indirectly, create or permit to exist or become effective any
consensual encumbrance or restriction on the ability of any of its Restricted
Subsidiaries to: (i) pay dividends or make any other distributions on its
Capital Stock to the Company or any of its Restricted Subsidiaries, or with
respect to any other interest or participation in, or measured by, its profits,
or pay any indebtedness owed to the Company or any of its Restricted
Subsidiaries; (ii) make any loans or advances to the Company or any of its
Restricted Subsidiaries; or (iii) transfer any of its properties or assets to
the Company or any of its Restricted Subsidiaries.


 


However,
the preceding restrictions will not apply to encumbrances or restrictions
existing under or by reason of: (1) any agreement in effect or entered into on
the date of this Indenture, including agreements governing Existing
Indebtedness Credit Facilities and Floor Plan Facilities as in effect on the
date of this Indenture and any amendments, modifications, restatements,
renewals, increases, supplements, refundings, replacements or refinancings of
those


 


47

















 


agreements, provided that the
amendments, modifications, restatements, renewals, increases, supplements,
refundings, replacement or refinancings of such instrument are no more
restrictive, taken as a whole, with respect to such dividend and other payment
restrictions than those contained in those agreements on the date of this
Indenture; (2) this Indenture, the Notes and the Subsidiary Guarantees; (3)
applicable law and any applicable rule, regulation or order; (4) any instrument
governing Indebtedness or Capital Stock of a Person acquired by the Company or
any of its Restricted Subsidiaries as in effect at the time of such acquisition
(except to the extent such Indebtedness or Capital Stock 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 that, in the case of 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; (6) purchase money obligations that impose restrictions on that
property of the nature described in clause (iii) of the preceding paragraph; provided that any such encumbrance or
restriction is released to the extent the underlying Lien is released or the
related Indebtedness is repaid; (7) any agreement for the sale or other
disposition of assets, including, without limitation, customary restrictions
with respect to a Subsidiary pursuant to an agreement that has been entered
into for the sale or disposition of substantially all of Capital Stock or
substantially all of the assets of that Subsidiary; (8) Permitted Refinancing
Indebtedness, provided that the restrictions contained in the agreements
governing such Permitted Refinancing Indebtedness are no more restrictive,
taken as a whole, than those contained in the agreements governing the
Indebtedness being refinanced; (9) Liens that limit the right of the debtor to
dispose of the assets subject to such Liens; (10) covenants in a franchise or
other agreement entered into in the ordinary course of business with a
Manufacturer customary for franchise agreements in the vehicle retailing industry;
(11) customary provisions in joint venture agreements, assets sale agreements,
stock sale agreements and other similar agreements entered into in the ordinary
course of business; and (12) restrictions on cash or other deposits or net
worth imposed by customers under contracts entered into in the ordinary course
of business.


 


Section 4.09.            Incurrence of Indebtedness and Issuance of
Preferred Stock.


 


The
Company shall not, and shall not permit any of its Restricted Subsidiaries 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 (including Acquired Debt),
and the Company shall not issue any Disqualified Stock and will not permit any
of its Restricted Subsidiaries to issue any shares of preferred stock;
provided, however, that the Company may incur Indebtedness (including Acquired
Debt) or issue Disqualified Stock, and the Company’s Restricted Subsidiaries
may incur Indebtedness (including Acquired Debt) or issue preferred stock, in
each case, if the Fixed Charge Coverage Ratio for the Company’s most recently
ended four full fiscal quarters for which internal financial statements are
available immediately preceding the date on which such additional Indebtedness
is incurred or such Disqualified Stock or preferred stock is issued would have
been at least 2.0 to 1, determined on a pro forma basis (including a pro forma
application of the net proceeds therefrom), as if the additional Indebtedness
had been incurred or the preferred stock or Disqualified Stock had been issued,
as the case may be, at the beginning of such four-quarter period.


 


The
first paragraph of this Section 4.09 shall not prohibit the incurrence of any
of the following items of Indebtedness (collectively, “Permitted Debt”):
(i) the incurrence by the


 


48

















 


Company and any of its
Restricted Subsidiaries of Indebtedness and letters of credit under Credit
Facilities in an aggregate principal amount at any one time outstanding under
this clause (i) (with letters of credit being deemed to have a principal amount
equal to the maximum potential liability of the Company and its Restricted
Subsidiaries thereunder) not to exceed the greater of (A) $550.0 million less the aggregate amount of all Net
Proceeds of Asset Sales applied by the Company or any of its Restricted
Subsidiaries since the date of this Indenture to repay term Indebtedness under
a Credit Facility or to repay revolving credit Indebtedness and effect a
corresponding commitment reduction thereunder, in each case, in satisfaction of
the covenant contained in Section 4.10 of this Indenture or (B) 30% of the
Company’s Consolidated Net Tangible Assets as of the date of such incurrence;
(ii) the incurrence by the Company and its Restricted Subsidiaries of the
Existing Indebtedness; (iii) the incurrence by the Company and its Restricted
Subsidiaries of Indebtedness represented by the Notes and the related
Subsidiary Guarantees to be issued, in the case of the Notes, on the date of
this Indenture and the Exchange Notes and the related Subsidiary Guarantees to
be issued pursuant to the Registration Rights Agreement; (iv) the incurrence by
the Company or any of its Restricted Subsidiaries of Indebtedness under Floor
Plan Facilities; (v) the incurrence by the Company or any of its Restricted
Subsidiaries of 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 in the
business of the Company or such Restricted Subsidiary, in an aggregate principal
amount, including all Permitted Refinancing Indebtedness incurred to refund,
refinance or replace any Indebtedness incurred pursuant to this clause (v), not
to exceed $30.0 million at any time outstanding; (vi) the incurrence by the
Company or any of its Restricted Subsidiaries of Permitted Refinancing
Indebtedness in exchange for, or the net proceeds of which are used to refund,
refinance or replace Indebtedness (other than intercompany Indebtedness) that
was permitted by this Indenture to be incurred under the first paragraph of
this covenant or clauses (ii), (iii), (v) or (vi) of this paragraph; (vii) the
incurrence by the Company or any of its Restricted Subsidiaries of intercompany
Indebtedness between or among the Company and its Restricted Subsidiaries; provided, that (A) if the Company or any
Guarantor is the obligor on such Indebtedness owing to a Restricted Subsidiary,
such Indebtedness must be expressly subordinated to the prior payment in full
in cash of all Obligations with respect to the Notes, in the case of the
Company, or the Subsidiary Guarantee, in the case of a Guarantor; and (B) (I)
any subsequent issuance or transfer of Equity Interests that results in any
such Indebtedness being held by a Person other than the Company or a Restricted
Subsidiary of the Company and (II) any sale or other transfer of any such
Indebtedness to a Person that is not either the Company or a Restricted
Subsidiary of the Company; will be deemed, in each case, to constitute an
incurrence of such Indebtedness by the Company or such Restricted Subsidiary,
as the case may be, that was not permitted by this clause (vii); (viii) the
incurrence by the Company or any of its Restricted Subsidiaries of Hedging
Obligations in the ordinary course of business and not for speculative
purposes; (ix) the guarantee by the Company or any of its Restricted
Subsidiaries of Indebtedness of the Company or a Restricted Subsidiary of the
Company that was permitted to be incurred by another provision of this Section
4.09; (x) 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, that such Indebtedness is
extinguished within five Business Days of its incurrence; (xi) Obligations in
respect of performance, bid and surety bonds and completion guarantees provided
by the Company or any of its Restricted Subsidiaries related to the
construction of vehicle dealerships in the ordinary course of business; and (xii)
the incurrence by the Company or any of its Restricted Subsidiaries of
additional Indebtedness in an aggregate principal amount (or accreted value, as
applicable) which, when taken together with all


 


49

















 


other Indebtedness of the
Company and its Restricted Subsidiaries outstanding on the date of such
Incurrence and incurred pursuant to this clause (xii) does not exceed $20.0
million.


 


For
purposes of determining compliance with this Section 4.09, in the event that an
item of proposed Indebtedness meets the criteria of more than one of the
categories of Permitted Debt described in clauses (i) through (xii) of the
preceding paragraph, or is entitled to be incurred pursuant to the first
paragraph of this Section 4.09, the Company will be permitted to divide and
classify such item of Indebtedness on the date of its incurrence, or later
reclassify all or a portion of such item of Indebtedness, in any manner that
complies with this Section 4.09. Indebtedness under Credit Facilities
outstanding on the date on which Notes are first issued and authenticated under
this Indenture will be deemed to have been incurred on such date in reliance on
the exception provided by clause (i) of the definition of Permitted Debt.


 


Accrual
of interest and dividends, accretion or amortization of original issue
discount, the payment of interest on any Indebtedness in the form of additional
Indebtedness with the same terms, changes to amounts outstanding in respect of
Hedging Obligations solely as a result of fluctuations in interest rates and
the payment of dividends on Disqualified Stock or preferred stock in the form
of additional shares of the same class of Disqualified Stock or preferred stock
will not be deemed to be an incurrence of Indebtedness or an issuance of
Disqualified Stock or preferred stock for purpose of this Section 4.09.


 


Section 4.10.            Asset Sales.


 


The
Company shall not, and shall not permit any of its Restricted Subsidiaries to
consummate an Asset Sale unless: (i) the Company (or the Restricted Subsidiary,
as the case may be) receives consideration at the time of the Asset Sale at
least equal to the fair market value of the assets or Equity Interests issued
or sold or otherwise disposed of; (ii) the fair market value is determined by
the Board of Directors of the Company; and (iii) at least 75% of the
consideration received in the Asset Sale by the Company or such Restricted
Subsidiary is in the form of cash or Cash Equivalents.


 


For
purposes of this provision, each of the following will be deemed to be cash or
Cash Equivalents: (a) any liabilities, as shown on the Company’s or such
Restricted Subsidiary’s most recent balance sheet, of the Company or any such
Restricted Subsidiary (other than contingent liabilities and liabilities that
are by their terms subordinated to the Notes or any Subsidiary Guarantee) that
are assumed by the transferee of any such assets and the lender releases the
Company or such Restricted Subsidiary from further liability; (b) any
securities, notes or other obligations received by the Company or any such
Restricted Subsidiary from such transferee that are promptly converted by the
Company or such Restricted Subsidiary into cash or Cash Equivalents, to the
extent of the cash or Cash Equivalents received in that conversion; and (c)
Replacement Assets.


 


Within
365 days after the receipt of any Net Proceeds from an Asset Sale, the Company
or the Restricted Subsidiary, as the case may be, may apply an amount equal to
such Net Proceeds at its option:


 


(1)           to
repay any Senior Debt of the Company or any of its Restricted Subsidiaries and,
if the Senior Debt repaid is revolving credit Indebtedness, to correspondingly
reduce commitments with respect thereto;


 


50

















 


(2)           to
acquire all or substantially all of the Voting Stock of a Permitted Business;


 


(3)           to
make a capital expenditure; or


 


(4)           to
acquire other long-term assets that are used or useful in a Permitted Business.


 


Pending
the final application of any Net Proceeds, the Company may temporarily reduce
revolving credit borrowings or otherwise invest the Net Proceeds in any manner
that is not otherwise prohibited under this Indenture.


 


If
any portion of the Net Proceeds from Asset Sales is not applied or invested as
provided in clauses (1) through (4) of the paragraph above, such amount will
constitute “Excess Proceeds.” When the aggregate amount of Excess
Proceeds exceeds $10.0 million, the Company shall make an offer to holders of
the Notes (and to holders of Existing Senior Subordinated Notes and to holders
of other Senior Subordinated Indebtedness of the Company designated by the
Company) to purchase Notes (and Existing Senior Subordinated Notes and such
other Senior Subordinated Indebtedness of the Company) pursuant to and subject
to the conditions contained in this Indenture (the “Asset Sale Offer”).
The Company shall purchase Notes, Existing Senior Subordinated Notes and such
other Senior Subordinated Indebtedness of the Company tendered pursuant to the
Asset Sale Offer at a purchase price of 100% of their principal amount (or, in
the event such other Senior Subordinated Indebtedness of the Company was issued
with significant original issue discount, 100% of the accreted value thereof)
without premium, plus accrued but unpaid interest (or, in respect of such other
Senior Subordinated Indebtedness of the Company, such lesser price, if any, as
may be provided for by the terms of such Senior Subordinated Indebtedness) in
accordance with the procedures (including prorating in the event of
oversubscription) set forth in this Indenture (the “Asset Sale Offer Price”).
If the aggregate purchase price of the securities tendered exceeds the Net
Proceeds allotted to their purchase, the Company will select the securities to
be purchased on a pro rata basis but in round denominations, which in the case
of the Notes will be denominations of $1,000 principal amount or multiples
thereof. If any Excess Proceeds remain after consummation of an Asset Sale
Offer, the Company may use those Excess Proceeds for any purpose not otherwise
prohibited by this Indenture. Upon completion of each Asset Sale Offer, the
amount of Excess Proceeds will be reset at zero.


 


The
Company shall comply with the requirements of Section 14(e) of and Rule 14e-1
under the Exchange Act and any other securities laws and regulations thereunder
to the extent those laws and regulations are applicable in connection with each
repurchase of Notes pursuant to an Asset Sale Offer. To the extent that the
provisions of any securities laws or regulations conflict with the Asset Sale
provisions of this Indenture, the Company shall comply with the applicable
securities laws and regulations and will not be deemed to have breached its
obligations under the Asset Sale provisions of this Indenture by virtue of such
conflict.


 


Section 4.11.            Transactions with Affiliates.


 


The
Company shall not, and shall not permit any of its Restricted Subsidiaries to,
make any payment to, or sell, lease, transfer or otherwise dispose of any of
its properties or assets to, or purchase any property or assets from, or enter
into or make or amend any transaction,


 


51

















 


contract, agreement, understanding, loan,
advance or guarantee with, or for the benefit of, any Affiliate (each, an “Affiliate
Transaction”), unless: (a) the Affiliate Transaction is on terms that are
not materially less favorable to the Company or the relevant Restricted
Subsidiary than those that would have been obtained in a comparable transaction
by the Company or such Restricted Subsidiary with an unrelated Person; and (b)
the Company delivers to the Trustee: (i) with respect to any Affiliate
Transaction or series of related Affiliate Transactions involving aggregate
consideration in excess of $5.0 million, a resolution of the Board of Directors
of the Company set forth in an Officers’ Certificate certifying that such
Affiliate Transaction complies with this Section 4.11 and that such Affiliate
Transaction has been approved by a majority of the disinterested members of the
Board of Directors of the Company; and (ii) with respect to any Affiliate
Transaction or series of related Affiliate Transactions involving aggregate
consideration in excess of $15.0 million, an opinion as to the fairness to the
Holders of such Affiliate Transaction from a financial point of view issued by
an accounting, appraisal or investment banking firm of national standing.


 


Notwithstanding
the foregoing, the following items will not be deemed to be Affiliate Transactions
and, therefore, will not be subject to the provisions of the prior paragraph:


 


(1)           any employment agreement entered into by the Company or any of its
Restricted Subsidiaries in the ordinary course of business of the Company or
such Restricted Subsidiary;


 


(2)           transactions between or among the Company and/or its Restricted
Subsidiaries;


 


(3)           transactions with a Person that is an Affiliate of the Company solely
because the Company owns an Equity Interest in, or controls, such Person;


 


(4)           payment of reasonable directors fees;


 


(5)           the issuance or sale of Equity Interests (other than Disqualified
Stock) to Affiliates of the Company;


 


(6)           the pledge of Equity Interests of Unrestricted Subsidiaries to support
the Indebtedness thereof; and


 


(7)           Restricted Payments that are permitted by the provisions of Section
4.07 of this Indenture.


 


Section 4.12.            Limitation on Liens.


 


The
Company will not, and will not permit any of its Restricted Subsidiaries to,
directly or indirectly, create, incur, assume or suffer to exist any Lien of
any kind securing Indebtedness or Attributable Debt on any asset now owned or
hereafter acquired, except  Permitted
Liens.


 


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Section 4.13.            Designation of Restricted and Unrestricted
Subsidiaries.


 


The
Board of Directors of the Company may designate any Restricted Subsidiary of
the Company to be an Unrestricted Subsidiary if no Default has occurred and is
continuing at the time of such designation and if that designation would not cause
a Default. If a Restricted Subsidiary of the Company is designated as an
Unrestricted Subsidiary, the aggregate fair market value of all outstanding
Investments owned by the Company and its Restricted Subsidiaries in the
Subsidiary properly designated shall be deemed to be an Investment made as of
the time of the designation and shall reduce the amount available for
Restricted Payments under the first paragraph of Section 4.07 or Permitted
Investments, as determined by the Company. That designation shall only be
permitted if the Investment would be permitted at that time and if the
Restricted Subsidiary of the Company otherwise meets the definition of an
Unrestricted Subsidiary. In addition, no such designation may be made unless
the proposed Unrestricted Subsidiary does not beneficially own any Capital
Stock in any Restricted Subsidiary that is not simultaneously subject to
designation as an Unrestricted Subsidiary. The Board of Directors of the
Company may redesignate any Unrestricted Subsidiary to be a Restricted
Subsidiary of the Company if the redesignation would not cause a Default.


 


Section 4.14.            Corporate Existence.


 


Subject
to Section 4.10 and Article 5 hereof, the Company shall do or cause to be done
all things necessary to preserve and keep in full force and effect (i) its
corporate existence, and the corporate, partnership or other existence of each
of its Restricted Subsidiaries, in accordance with the respective
organizational documents (as the same may be amended from time to time) of the Company
or any such Restricted Subsidiary and (ii) the rights (charter and statutory),
licenses and franchises of the Company and its Restricted Subsidiaries;
provided that the Company shall not be required to preserve any such right,
license or franchise, or the corporate, partnership or other existence of any
of its Restricted Subsidiaries, if the Board of Directors shall determine that
the preservation thereof is no longer desirable in the conduct of the business
of the Company and its Subsidiaries, taken as a whole, and that the loss
thereof is not adverse in any material respect to the Holders of the Notes.


 


Section 4.15.            Offer to Repurchase Upon Change of Control.


 


(a)           Upon the occurrence of a Change of Control,
the Company shall make an offer (a “Change of Control Offer”) to each
Holder to repurchase all or any part (equal to $1,000 or an integral multiple
thereof) of each Holder’s Notes at a purchase price equal to 101% of the
aggregate principal amount thereof plus accrued and unpaid interest and Special
Interest thereon, if any, to 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 stating: (1) that the Change of Control
Offer is being made pursuant to this Section 4.15 and that all Notes tendered
will be accepted for payment; (2) the purchase price and the purchase date,
which 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”); (3) that
any Note not promptly tendered will continue to accrue interest; (4) that,
unless the Company defaults in the payment of the Change of Control Payment,
all Notes accepted for payment pursuant to the Change of Control Offer shall
cease to accrue interest after the Change of Control Payment Date; (5) that
Holders electing to have any Notes purchased pursuant to a Change of Control
Offer will be required to surrender the Notes, with the form entitled “Option
of Holder to Elect Purchase” on the reverse of the Notes completed, to the


 


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Paying Agent at the address
specified in the notice prior to the close of business on the third Business
Day preceding the Change of Control Payment Date; (6) that Holders will be
entitled to withdraw their election if the Paying Agent receives, not later
than the close of business on the second Business Day preceding the Change of
Control Payment Date, a telegram, telex, facsimile transmission or letter
setting forth the name of the Holder, the principal amount of Notes delivered
for purchase, and a statement that such Holder is withdrawing his election to
have the Notes purchased; and (7) that Holders whose Notes are being purchased
only in part will be issued new Notes equal in principal amount to the
unpurchased portion of the Notes surrendered, which unpurchased portion must be
equal to $1,000 in principal amount or an integral multiple thereof. The
Company shall comply with the requirements of Section 14(e) of and 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 in connection with a Change of Control. To the extent that
the provisions of any securities laws or regulations conflict with the
provisions of this Indenture relating to a Change of Control Offer, the Company
shall comply with the applicable securities laws and regulations and shall not
be deemed to have breached its obligations under this Indenture by virtue of
such conflict.


 


(b)           On the Change of Control Payment Date, the
Company shall, to the extent lawful, (1) accept for payment all Notes or
portions thereof properly tendered pursuant to the Change of Control Offer, (2)
deposit with the Paying Agent an amount equal to the Change of Control Payment
in respect of all Notes or portions thereof properly tendered and (3) deliver
or cause to be delivered to the Trustee the Notes properly 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 the 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 by such Holder, if
any; provided, that each such new Note shall be in a principal amount of $1,000
or an integral multiple thereof. Prior to complying with any of the provisions
of this Section 4.15, but in any event within 90 days following a Change of
Control, the Company will either repay all outstanding Senior Debt or obtain
the requisite consents, if any, under all agreements governing outstanding
Senior Debt to permit the repurchase of Notes required by this covenant. 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)           Notwithstanding anything to the contrary in
this Section 4.15, 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 properly tendered and not
withdrawn under such Change of Control Offer.


 


Section 4.16.            Anti-Layering.


 


The
Company shall not incur, create, issue, assume, guarantee or otherwise become
liable for any Indebtedness that is subordinate or junior in right of payment
to any Senior Debt of the Company and senior in any respect in right of payment
to the Notes. No Guarantor shall incur, create, issue, assume, guarantee or
otherwise become liable for any Indebtedness that


 


54

















 


is subordinate or junior in
right of payment to the Senior Debt of such Guarantor and senior in any respect
in right of payment to such Guarantor’s Subsidiary Guarantee.


 


Section 4.17.            Additional Subsidiary Guarantees.


 


The
Company shall cause any Domestic Subsidiary of the Company which incurs, has
outstanding or guarantees any Indebtedness to, simultaneously with such
incurrence or guarantee (or, if such Domestic Subsidiary has outstanding or
guarantees Indebtedness at the time of its creation or acquisition, at the time
of such creation or acquisition), become a Guarantor and execute and deliver to
the Trustee a supplemental indenture, in form and substance reasonably
satisfactory to the Trustee, pursuant to which such Subsidiary will agree to
guarantee the Company’s obligations under the Notes; provided, however, that (i) no Lexus Dealership Subsidiary
or Toyota Dealership Subsidiary shall be required to comply with this covenant
unless such Subsidiary guarantees, assumes or otherwise agrees to become liable
for any Indebtedness of the Company or any of the Company’s Subsidiaries (other
than a Lexus Dealership Subsidiary or Toyota Dealership Subsidiary), other than
Indebtedness in existence on the date hereof (or committed to by lenders under
Credit Facilities in existence on the date hereof), in which case such Subsidiary
shall, concurrently with its execution and delivery of the guarantee, agreement
or instrument pursuant to which such Subsidiary guarantees, assumes or
otherwise agrees to become liable for such Indebtedness (or upon the
acquisition by the Company of such Subsidiary if such Subsidiary has entered
into such a guarantee or other agreement prior to its becoming a Subsidiary of
the Company), become a Guarantor and (ii) all Subsidiaries of the Company that
have properly been designated as Unrestricted Subsidiaries in accordance with
this Indenture, for so long as they continue to constitute Unrestricted
Subsidiaries, will not have to comply with the requirements of this Section
4.17.


 


Section 4.18.            Payments for Consent.


 


The
Company shall not, and shall not permit any of its Restricted Subsidiaries to,
directly or indirectly, pay or cause to be paid any consideration to or for the
benefit of any Holder of Notes 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 be paid and is paid to all Holders of
the Notes that consent, waive or agree to amend in the time frame set forth in
the solicitation documents relating to such consent, waiver or agreement.


 


Section 4.19.            Restrictions on Lexus Dealership Subsidiaries
and Toyota Dealership Subsidiaries.


 


The
Company shall not permit, or permit any of its Subsidiaries to permit (a) any
Lexus Dealership Subsidiary to (A) engage in any business or activity other
than the business and activities engaged in by the Lexus Dealership
Subsidiaries on the date hereof and any other business or activities related or
incidental to the franchised retail sale and servicing of Lexus vehicles or (B)
notwithstanding the exceptions to the covenants contained in Sections 4.09 and
4.12, incur any Indebtedness or trade payables other than Lexus Dealership
Indebtedness Or Trade Payables and (b) any Toyota Dealership Subsidiary to (A)
engage in any business or activity other than the business and activities
engaged in by the Toyota Dealership Subsidiaries on the date hereof and any
other business or activities which are related or incidental to the franchised
retail sale and servicing of Toyota vehicles or (B) notwithstanding the exceptions
to the covenants contained in Sections 4.09 and 4.12, incur any Indebtedness or
trade payables other


 


55

















 


than Toyota Dealership Indebtedness Or Trade
Payables; provided, however, that the restrictions of this
Section 4.19 shall not apply with respect to any Lexus Dealership Subsidiary or
Toyota Dealership Subsidiary at any time after such Lexus Dealership Subsidiary
or Toyota Dealership Subsidiary becomes a Guarantor by executing and delivering
to the Trustee a supplemental indenture in accordance with Section 4.17
pursuant to which such Lexus Dealership Subsidiary or Toyota Dealership
Subsidiary agrees to guarantee the Company’s obligations under the Notes.


 


ARTICLE 5

SUCCESSORS


 


Section 5.01.            Merger, Consolidation, or Sale of Assets.


 


The
Company shall not, directly or indirectly (1) consolidate or merge with or into
another Person (whether or not the Company is the surviving corporation), or
(2) sell, assign, transfer, convey or otherwise dispose of all or substantially
all of the properties or assets of the Company and its Restricted Subsidiaries
taken as a whole, in one or more related transactions to, another Person,
unless (i) either (A) the Company is the surviving corporation or (B) the
Person formed by or surviving any such consolidation or merger (if other than
the Company) or to which such sale, assignment, transfer, conveyance or other
disposition shall have been made is a corporation organized or existing under
the laws of the United States, any state thereof or the District of Columbia
(any such Person, the “Successor Company”), (ii) the Successor Company
assumes all the obligations of the Company under the Notes, this Indenture and
the Registration Rights Agreement pursuant to agreements reasonably
satisfactory to the Trustee, (iii) immediately after such transaction no
Default exists, and (iv) the Company or the Successor Company shall, on the
date of such transaction after giving pro forma effect thereto and any related
financing transactions as if the same had occurred at the beginning of the
applicable four-quarter period, be permitted to incur at least $1.00 of
additional Indebtedness pursuant to the Fixed Charge Coverage Ratio test set
forth in the first paragraph of Section 4.09 hereof. The foregoing clause (iv)
shall not prohibit (A) a merger between the Company and any of its Restricted
Subsidiaries; or (B) a merger between the Company and an Affiliate with no
liabilities (other than de minimis liabilities),
provided that such Affiliate is
incorporated and the merger undertaken solely for the purpose of
reincorporating the Company in another state of the United States, so long as,
the amount of Indebtedness of the Company and its Restricted Subsidiaries is
not increased thereby. In addition, the Company shall not, directly or
indirectly, lease all or substantially all of its properties or assets, in one
or more related transactions, to any other Person. The provisions of this
Section 5.01 shall not be applicable to a sale, assignment, transfer,
conveyance or other disposition of assets between or among the Company and any
of the Guarantors.


 


Section 5.02.            Successor Company Substituted.


 


Upon
any consolidation or merger, or any sale, assignment, transfer, lease,
conveyance or other disposition of all or substantially all of the properties
or assets of the Company in accordance with Section 5.01 hereof, the Successor
Company shall succeed to, and be substituted for (so that from and after the
date of such consolidation, merger, sale, lease, conveyance or other
disposition, the provisions of this Indenture referring to the “Company”
shall refer instead to the Successor Company and not to the Company), and may
exercise every right and power of the Company under this Indenture with the
same effect as if such successor Person had been named as the Company herein;
provided that the predecessor Company shall not be relieved from the obligation
to pay the principal of and interest and Special Interest, if any, on the


 


56

















 


Notes except in the case of a sale,
assignment, transfer, conveyance or other disposition of all of the Company’s
properties or assets that meets the requirements of Section 5.01 hereof.


 


ARTICLE 6


DEFAULTS
AND REMEDIES


 


Section 6.01.            Events of Default.


 


An
“Event of Default” occurs if:


 


(a)           the Company defaults in the payment when due
of interest on, or Special Interest, if any, with respect to, the Notes and
such default continues for a period of 30 days, whether or not such payment shall
be prohibited by Article 10 hereof;


 


(b)           the Company defaults in the payment when due
of principal of, or premium, if any, on the Notes when the same becomes due and
payable at maturity, upon redemption (including in connection with an offer to
purchase) or otherwise, whether or not such payment shall be prohibited by
Article 10 hereof;


 


(c)           the Company fails to comply with any of the
provisions of Section 5.01 hereof;


 


(d)           the Company or any of its Restricted
Subsidiaries fails to comply with any of the provisions of Section 4.07, 4.09,
4.10, 4.15 or 4.19 hereof for a period of 30 days after receipt of notice to
the Company by the Trustee or the Holders of at least 25% in aggregate
principal amount of the Notes (including Additional Notes, if any) then
outstanding voting as a single class;


 


(e)           the Company or any of its Restricted
Subsidiaries fails to observe or perform any other covenant or other agreement
in this Indenture for 60 days after notice to the Company by the Trustee or the
Holders of at least 25% in aggregate principal amount of the Notes (including
Additional Notes, if any) then outstanding voting as a single class;


 


(f)            a default occurs under any mortgage,
indenture or instrument under which there may be issued or by which there may
be secured or evidenced any Indebtedness for money borrowed by the Company or
any of its Restricted Subsidiaries (or the payment of which is guaranteed by
the Company or any of its Restricted Subsidiaries), whether such Indebtedness
or guarantee now exists, or is created after the date of this Indenture, which
default is caused by a failure to pay principal at its stated final maturity
(after giving effect to any applicable grace period provided in such
Indebtedness) (a “Payment Default”) or results in the acceleration of
such Indebtedness prior to its express maturity and, in each case, the
principal amount of any such Indebtedness, together with the principal amount
of any other such Indebtedness under which there has been a Payment Default or
the maturity of which has been so accelerated, aggregates $15.0 million or
more;


 


(g)           a final judgment or final judgments for the
payment of money are entered by a court or courts of competent jurisdiction
against the Company or any of its Restricted Subsidiaries, and such judgment or
judgments remain not paid, discharged or stayed for a period


 


57

















 


of 60 days, provided that the aggregate of all such
not paid, discharged or stayed judgments exceeds $15.0 million;


 


(h)           except as permitted by this Indenture, any
Subsidiary Guarantee is held in any judicial proceeding to be unenforceable or
invalid or shall cease for any reason to be in full force and effect or any
Guarantor, or any Person acting on behalf of any Guarantor, shall deny or
disaffirm its obligations under such Guarantor’s Subsidiary Guarantee.


 


(i)            the Company or any Restricted Subsidiary of
the Company that is a Significant Subsidiary or any Restricted Subsidiaries of
the Company that taken together would constitute a Restricted Subsidiary of the
Company:


 


(i)            commences
a voluntary case,


 


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


 


(iii)          consents
to the appointment of a custodian of it or for all or substantially all of its
property,


 


(iv)          makes
a general assignment for the benefit of its creditors, or


 


(v)           generally
is not paying its debts as they become due; or


 


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


 


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


 


(ii)           appoints
a custodian of the Company or any Restricted Subsidiary of the Company that is
a Significant Subsidiary or any Restricted Subsidiaries of the Company that,
taken together, would constitute a Significant Subsidiary of the Company or for
all or substantially all of the property of the Company or any Restricted
Subsidiary of the Company that is a Significant Subsidiary or any Restricted
Subsidiaries of the Company that, taken together, would constitute a
Significant Subsidiary of the Company; or


 


(iii)          orders
the liquidation of the Company or any Restricted Subsidiary of the Company that
is a Significant Subsidiary or any Restricted 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.


 


58

















 


Section 6.02.            Acceleration.


 


If
any Event of Default (other than an Event of Default specified in clause (i) or
(j) of Section 6.01 hereof with respect to the Company, any Restricted
Subsidiary of the Company or any group of Restricted Subsidiaries that, taken
together, would constitute a Significant Subsidiary) occurs and is continuing,
the Trustee or the Holders of at least 25% in principal amount of the then
outstanding Notes may declare all the Notes to be due and payable immediately.
Upon any such declaration, the Notes shall become due and payable immediately.
Upon any such declaration the Notes shall become due and payable immediately.
Notwithstanding the foregoing, if an Event of Default specified in clause (i)
or (j) of Section 6.01 hereof occurs with respect to the Company, any
Restricted Subsidiary of the Company or any group of Restricted Subsidiaries
that, taken together, would constitute a 
Significant Subsidiary, all outstanding Notes shall be due and payable
immediately without further action or notice. The Holders of a majority in
aggregate principal amount of the then outstanding Notes by written notice to
the Trustee may on behalf of all of the Holders rescind an acceleration and its
consequences if the rescission would not conflict with any judgment or decree
and if all existing Events of Default (except nonpayment of principal, interest
or premium that has become due solely because of the acceleration) have been
cured or waived.


 


If
an Event of Default occurs by reason of any willful action (or inaction) taken
(or not taken) by or on behalf of the Company with the intention of avoiding
payment of the premium that the Company would have had to pay if the Company
then had elected to redeem the Notes pursuant Section 3.07(a) or (c) hereof, as
applicable, then, upon acceleration of the Notes, an equivalent premium shall
also become and be immediately due and payable, to the extent permitted by law,
anything in this Indenture or in the Notes to the contrary notwithstanding.


 


Section 6.03.            Other Remedies.


 


If
an Event of Default occurs and is continuing, the Trustee may pursue any
available remedy to collect the payment of principal, premium, if any, and
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 of a Note 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. Every right and remedy given by
this Article or by law to the Trustee or to the Holders may be exercised from
time to time, and as often as may be deemed expedient, by the Trustee or by the
Holders, as the case may be.


 


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


 


59

















 


Section 6.04.            Waiver of Past Defaults.


 


Holders
of not less than a majority in aggregate principal amount of the then
outstanding Notes by notice to the Trustee may on behalf of the Holders of all
of the Notes waive an existing Default or Event of Default and its consequences
hereunder, except a continuing Default or Event of Default in the payment of
the principal of, premium and Special Interest, if any, or interest on, the
Notes including in connection with an offer to purchase (other than the non-payment
of principal of or interest or Special Interest, if any, on the Notes that
became due solely because of the acceleration of the Notes) (provided that the
Holders of a majority in aggregate principal amount of the then outstanding
Notes may rescind an acceleration and its consequences, including any related
payment default that resulted from such acceleration). Upon any such waiver,
such Default shall cease to exist, and any Event of Default arising therefrom
shall be deemed to have been cured for every purpose of this Indenture; but no
such waiver shall extend to any subsequent or other Default or impair any right
consequent thereon.


 


Section 6.05.            Control by Majority.


 


The
holders of a majority in principal amount of the Notes then outstanding shall
have the right to direct the time, method and place of conducting any
proceeding for any remedy available to the Trustee or exercising any trust or
power conferred on the Trustee, with respect to the Notes, provided that


 


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


 


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


 


Section 6.06.            Limitation on Suits.


 


A
Holder of a Note may pursue a remedy with respect to this Indenture or the
Notes only if:


 


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


 


(b)           the Holders of at least 25% in principal
amount of the then outstanding Notes make a written request to the Trustee to
pursue the remedy;


 


(c)           such Holder of a Note or Holders of Notes
offer and, if requested, provide to the Trustee 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 and, if requested,
the provision of indemnity; and


 


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


 


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A
Holder of a Note may not use this Indenture to prejudice the rights of another
Holder of a Note or to obtain a preference or priority over another Holder of a
Note.


 


Section 6.07.            Rights of Holders of Notes to Receive Payment.


 


Notwithstanding
any other provision of this Indenture, the right of any Holder of a Note to
receive payment of principal, premium and Special Interest, if any, and
interest on the Note, on or after the respective due dates expressed in the
Note (including in connection with an offer to purchase), 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 6.08.            Collection Suit by Trustee.


 


If
an Event of Default specified in Section 6.01(a) or (b) occurs and is
continuing, the Trustee is authorized to recover judgment in its own name and
as trustee of an express trust against the Company for the whole amount of
principal of, premium and Special Interest, if any, and interest remaining
unpaid on the Notes and interest on overdue principal and, to the extent
lawful, interest and such further amount as shall be sufficient to cover the
costs and expenses of collection, including the reasonable compensation,
expenses, disbursements and advances of the Trustee, its agents and counsel.


 


Section 6.09.            Trustee May File Proofs of Claim.


 


The
Trustee is authorized to file such proofs of claim and other papers or
documents as may be necessary or advisable in order to have the claims of the
Trustee (including any claim for the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel) and the
Holders of the Notes allowed in any judicial proceedings relative to the
Company (or any other obligor upon the Notes), its creditors or its property
and shall be entitled and empowered to collect, receive and distribute any
money or other property payable or deliverable on any such claims and any
custodian in any such judicial proceeding is hereby authorized by each Holder
to make such payments to the Trustee, and in the event that the Trustee shall
consent to the making of such payments directly to the Holders, to pay to the
Trustee any amount due to it for the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel, and any
other amounts due the Trustee under Section 7.07 hereof. To the extent that the
payment of any such compensation, expenses, disbursements and advances of the
Trustee, its agents and counsel, and any other amounts due the Trustee under
Section 7.07 hereof out of the estate in any such proceeding, shall be denied
for any reason, payment of the same shall be secured by a Lien on, and shall be
paid out of, any and all distributions, dividends, money, securities and other
properties that the Holders may be entitled to receive in such proceeding
whether in liquidation or under any plan of reorganization or arrangement or
otherwise. Nothing herein contained shall be deemed to authorize the Trustee to
authorize or consent to or accept or adopt on behalf of any Holder any plan of
reorganization, arrangement, adjustment or composition affecting the Notes or
the rights of any Holder, or to authorize the Trustee to vote in respect of the
claim of any Holder in any such proceeding.


 


Section 6.10.            Priorities.


 


If
the Trustee collects any money pursuant to this Article, it shall pay out the
money in the following order:


 


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First:  to
the Trustee, its agents and attorneys for amounts due under Section 7.07
hereof, including payment of all compensation, expense and liabilities
incurred, and all advances made, by the Trustee and the costs and expenses of
collection;


 


Second: 
subject to the provisions of Article 10 hereof, to Holders of Notes for
amounts due and unpaid on the Notes for principal, premium and Special
Interest, 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 and Special Interest, if any and interest, respectively; and


 


Third:  to
the Company or to such party as a court of competent jurisdiction shall direct.


 


The
Trustee may fix a record date and payment date for any payment to Holders of
Notes pursuant to this Section 6.10.


 


Section 6.11.            Undertaking for Costs.


 


In
any suit for the enforcement of any right or remedy under this Indenture or in
any suit against the Trustee for any action taken or omitted by it as a
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 and expenses, 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 of a
Note pursuant to Section 6.07 hereof, or a suit by Holders of more than 10% in
principal amount of the then outstanding Notes.


 


ARTICLE 7


TRUSTEE


 


Section 7.01.            Duties of Trustee.


 


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


 


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


 


(i)            the
duties of the Trustee shall be determined solely by the express provisions of
this Indenture and the Trustee need perform only those duties that are
specifically set forth in this Indenture and no others, 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, with respect to certificates or
opinions


 


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specifically
required to be furnished to it hereunder, the Trustee shall examine the
certificates and opinions to determine whether or not they conform to the
requirements of this Indenture.


 


(c)           The Trustee may not be relieved from
liabilities 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
Responsible Officer, unless it is proved that the Trustee was negligent in
ascertaining the pertinent facts; and


 


(iii)          the
Trustee shall not be liable with respect to any action it takes or omits to
take in good faith in accordance with a direction received by it pursuant to
Section 6.05 hereof.


 


(d)           Whether or not therein expressly so provided,
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)           No provision of this Indenture shall require
the Trustee to expend or risk its own funds or incur any liability. The Trustee
shall be under no obligation to exercise any of its rights and powers under
this Indenture at the request of any Holders, unless such Holders shall have
offered to the Trustee security and indemnity satisfactory to it against any
loss, liability or expense.


 


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


 


Section 7.02.            Rights of Trustee.


 


(a)           The Trustee may conclusively rely upon any
document (whether in its original or facsimile form) 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 or
both. The Trustee shall not be liable for any action it takes or omits to take
in good faith in reliance on such Officers’ Certificate or Opinion of Counsel.
The Trustee may consult with counsel and the advice of such counsel or any
Opinion of Counsel shall be full and complete authorization and protection from
liability in respect of any action taken, suffered or omitted by it hereunder
in good faith and in reliance thereon.


 


(c)           The Trustee may act through its attorneys and
agents and shall not be responsible for the misconduct or gross negligence of
any agent or attorney 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 that it believes to be
authorized or within the rights or powers conferred upon it by this Indenture.


 


(e)           Unless otherwise specifically provided in
this Indenture, any demand, request, direction or notice from the Company shall
be sufficient if signed by an Officer of the Company.


 


(f)            The Trustee shall be under no obligation to
exercise any of the rights or powers vested in it by this Indenture at the
request or direction of any of the Holders unless such Holders shall have
offered to the Trustee reasonable security or indemnity against the costs,
expenses and liabilities that might be incurred by it in compliance with such
request or direction.


 


(g)           The rights, privileges, protections,
immunities and benefits given to the Trustee, including, without limitation,
its right to be indemnified, are extended to, and shall be enforceable by, the
Trustee in each of its capacities hereunder, and each agent, custodian and
other Person employed to act hereunder.


 


(h)           The Trustee shall not be bound to make any
investigation into the facts or matters stated in any resolution, certificate,
statement, instrument, opinion, report, notice, request, direction, consent,
order, bond, debenture, note, other evidence of indebtedness or other paper or
document, but the Trustee, in its discretion, may make such further inquiry or
investigation into such facts or matters as it may see fit, and, if the Trustee
shall determine to make such further inquiry or investigation, it shall be
entitled to examine the books, records and premises of the Company, personally
or by agent or attorney at the sole cost of the Company and shall incur no
liability or additional liability of any kind by reason of such inquiry or
investigation.


 


(i)            The Trustee shall not be deemed to have
notice of any Default or Event of Default unless a Responsible Officer of the
Trustee has actual knowledge thereof or unless written notice of any event
which is in fact such a default is received by the Trustee at the Corporate
Trust Office of the Trustee, and such notice references the Notes and this
Indenture.


 


(j)            The Trustee may request that the Company
deliver an Officers’ Certificate setting forth the names of individuals and/or
titles of officers authorized at such time to take specified actions pursuant
to this Indenture, which Officers’ Certificate may be signed by any person
authorized to sign an Officers’ Certificate, including any person specified as
so authorized in any such certificate previously delivered and not superseded.


 


Section 7.03.            Individual Rights of Trustee.


 


The
Trustee in its individual or any other capacity may become the owner or pledgee
of Notes and may otherwise deal with the Company or any Affiliate of the
Company with the same rights it would have if it were not Trustee.


 


In
the event that the Trustee acquires any conflicting interest it must eliminate
such conflict within 90 days, apply to the SEC for permission to continue as
trustee or resign. Any Agent may do the same with like rights and duties.  If the Trustee fails to eliminate such
conflicting interest, obtain said permission or resign within the ten days
after the conclusion of


 


64

















 


such 90-day period, the Trustee shall provide
notice to the Holders of this effect, and any Holder that has been a bona fide Holder for at least six months
prior to the delivery of such notice shall have the right to petition a court
of competent jurisdiction to remove the Trustee and appoint a Successor
Trustee.  The Trustee is also subject to
Sections 7.10 and 7.11 hereof.


 


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 from the Notes or any money
paid to the Company or upon the Company’s direction under any provision of this
Indenture, it shall not be responsible for the use or application of any money
received by any Paying Agent other than the Trustee, and it shall not be
responsible for any statement or recital herein or any statement in the Notes
or any other document in connection with the sale of the Notes or pursuant to
this Indenture other than its certificate of authentication.


 


Section 7.05.            Notice of Defaults.


 


If
a Default or Event of Default occurs and is continuing and if it is actually
known to a Responsible Officer of the Trustee, the Trustee shall mail to
Holders of Notes a notice of the Default or Event of Default within 90 days
after it occurs. Except in the case of a Default or Event of Default in payment
of principal of, premium, if any, or interest on any Note, the Trustee may
withhold the notice if and so long as a committee of its Responsible Officers
in good faith determines that withholding the notice is in the interests of the
Holders of the Notes.


 


Section 7.06.            Reports by Trustee to Holders of the Notes.


 


Within
60 days after each May 15 beginning with the May 15 following the date of this
Indenture, and for so long as Notes remain outstanding, the Trustee shall mail
to the Holders of the Notes a brief report dated as of such reporting date that
complies with TIA § 313(a) (but if no event described in TIA § 313(a) has
occurred within the twelve months preceding the reporting date, no report need
be transmitted). The Trustee also shall comply with TIA § 313(b)(2). The
Trustee shall also transmit by mail all reports as required by TIA § 313(c).


 


A
copy of each report at the time of its mailing to the Holders of Notes shall be
mailed to the Company and filed with the SEC and each stock exchange on which
the Notes are listed in accordance with TIA § 313(d). The Company shall
promptly notify the Trustee when the Notes are listed on any securities
exchange or delisted therefrom.


 


Section 7.07.            Compensation and Indemnity.


 


The
Company shall pay to the Trustee such compensation as agreed upon from time to
time in writing for its acceptance of this Indenture and services hereunder.
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 promptly
upon request for all reasonable disbursements, advances and expenses incurred
or made by it in addition to the compensation for its services. Such expenses
shall include the reasonable compensation, disbursements and expenses of the
Trustee’s agents and counsel.


 


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The
Company shall fully indemnify the Trustee against any and all losses,
liabilities, claims, damages or expenses incurred by it, without negligence,
willful misconduct or bad faith, arising out of or in connection with the
acceptance or administration of its duties under this Indenture, including the
costs and expenses of enforcing this Indenture against the Company (including
this Section 7.07) and defending itself against any claim (whether asserted by
the Company or any Holder or any other person) or liability in connection with
the exercise or performance of any of its powers or duties hereunder, except to
the extent any such loss, liability or expense has been caused by its own
negligence, willful misconduct or bad faith. The Trustee shall notify the
Company promptly of any claim of which it has received notice 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 shall reasonably cooperate in the defense. The Trustee
may have separate counsel and the Company shall pay the reasonable fees and
expenses of such counsel. The Company need not pay for any settlement made
without its consent, which consent shall not be unreasonably withheld. The
Company need not reimburse any expense or indemnify against any loss, liability
or expense incurred by the Trustee through its own negligence, willful
misconduct or bad faith.


 


The
obligations of the Company under this Section 7.07 shall survive the
satisfaction and discharge of this Indenture.


 


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, except that held in trust to pay principal and interest on
particular Notes. Such Lien shall survive the satisfaction and discharge of
this Indenture.


 


When
the Trustee incurs expenses or renders services after an Event of Default
specified in Section 6.01(g) or (h) hereof occurs, the expenses and the
compensation for the services (including the fees and expenses of its agents
and counsel) are intended to constitute expenses of administration under any
Bankruptcy Law.


 


The
Trustee shall comply with the provisions of TIA § 313(b)(2) to the extent
applicable.


 


Section 7.08.            Replacement of Trustee.


 


A
resignation or removal of the Trustee and appointment of a successor Trustee
shall become effective only upon the successor Trustee’s acceptance of
appointment as provided in this Section.


 


The
Trustee may resign in writing at any time and be discharged from the trust
hereby created by so notifying the Company. The Holders of a majority in
principal amount of the then outstanding Notes may remove the Trustee by so
notifying the Trustee and the Company in writing. The Company may remove the
Trustee if:


 


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


 


(b)           the Trustee is adjudged a bankrupt or an
insolvent or an order for relief is entered with respect to the Trustee under
any Bankruptcy Law;


 


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


 


(d)           the Trustee becomes
incapable of acting.


 


If
the Trustee resigns or is removed or if a vacancy exists in the office of
Trustee for any reason, the Company shall promptly appoint a successor Trustee.
Within one year after the successor Trustee takes office, the Holders of a
majority in principal amount of the then outstanding Notes may appoint a
successor Trustee to replace the successor Trustee appointed by the Company.


 


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


 


If
the Trustee, after written request by any Holder who has been a Holder for at
least six months, fails to comply with Section 7.10, such Holder may petition
any court of competent jurisdiction for the removal of the Trustee and the
appointment of 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, provided all sums owing to the Trustee hereunder have
been paid and subject to the Lien provided for in Section 7.07 hereof.  Notwithstanding replacement of the Trustee
pursuant to this Section 7.08, the Company’s obligations under Section 7.07
hereof shall continue for the benefit of the retiring Trustee.


 


Section 7.09.            Successor Trustee by Merger, etc.


 


If
the Trustee consolidates, merges or converts into, or transfers all or
substantially all of its corporate trust business to, another corporation, the
successor corporation without any further act shall be the successor Trustee.


 


Section 7.10.            Eligibility; Disqualification.


 


There
shall at all times be a Trustee hereunder that is a corporation organized and
doing business under the laws of the United States of America or of any state
thereof that is authorized under such laws to exercise corporate trustee power,
that is subject to supervision or examination by federal or state authorities
and that has a combined capital and surplus of at least $50 million as set
forth in its most recent published annual report of condition.


 


This
Indenture shall always have a Trustee who satisfies the requirements of TIA §
310(a)(1) and (2). The Trustee is subject to TIA § 310(b).


 


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Section 7.11.          Preferential Collection of Claims Against
Company.


 


The
Trustee is subject to 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 therein.


 


ARTICLE 8

LEGAL DEFEASANCE AND COVENANT DEFEASANCE


 


Section 8.01.            Option to Effect Legal Defeasance or Covenant
Defeasance.


 


The
Company may, at the option of its Board of Directors evidenced by a resolution
set forth in an Officers’ Certificate, at any time, elect to have either
Section 8.02 or 8.03 hereof be applied to all outstanding Notes upon compliance
with the conditions set forth below in this Article 8. If the Company exercises
its option under this Section 8.01 with respect to either Section 8.02 or 8.03,
each Guarantor will be released from all of its obligations with respect to its
Guarantee.


 


Section 8.02.            Legal Defeasance and Discharge.


 


Upon
the Company’s exercise under Section 8.01 hereof of the option applicable to
this Section 8.02, the Company shall, subject to the satisfaction of the
conditions set forth in Section 8.04 hereof, be deemed to have been discharged
from its obligations with respect to all outstanding Notes on the date the conditions
set forth below are satisfied (hereinafter, “Legal Defeasance”). For
this purpose, Legal Defeasance means that the Company shall be deemed to have
paid and discharged the entire Indebtedness represented by the outstanding
Notes, which shall thereafter be deemed to be “outstanding” only for the
purposes of Section 8.05 hereof and the other Sections of this Indenture
referred to in (a) and (b) below, and to have satisfied all its other
obligations under such Notes and this Indenture (and the Trustee, on demand of
and at the expense of the Company, shall execute proper instruments
acknowledging the same), except for the following provisions which shall
survive until otherwise terminated or discharged hereunder: (a) the rights of
Holders of outstanding Notes to receive solely from the trust fund described in
Section 8.04 hereof, and as more fully set forth in such Section, payments in
respect of the principal of premium or Special Interest, if any, and interest
on such Notes when such payments are due, (b) the Company’s obligations with
respect to such Notes under Article 2 and Section 4.02 hereof, (c) the rights,
powers, trusts, duties and immunities of the Trustee hereunder and the
Company’s and the Guarantors’ obligations in connection therewith and (d) this
Article 8. Subject to compliance with this Article 8, the Company may exercise
its option under this Section 8.02 notwithstanding the prior exercise of its
option under Section 8.03 hereof.


 


Section 8.03.            Covenant Defeasance.


 


Upon
the Company’s exercise under Section 8.01 hereof of the option applicable to
this Section 8.03, the Company shall, subject to the satisfaction of the
conditions set forth in Section 8.04 hereof, be released from its obligations
under the covenants contained in Sections 4.07, 4.08, 4.09, 4.10, 4.11, 4.12,
4.13, 4.15, 4.16, 4.17, 4.18 and 4.19 hereof and clause (iv) of Section 5.01
hereof with respect to the outstanding Notes on and after the date the
conditions set forth in Section 8.04 are satisfied (hereinafter, “Covenant
Defeasance”), and the Notes shall thereafter be deemed not “outstanding”
for the purposes of any direction, waiver, consent or


 


 


68

















 


declaration or act of Holders (and the
consequences of any thereof) in connection with such covenants, but shall
continue to be deemed “outstanding” for all other purposes hereunder (it
being understood that such Notes shall not be deemed outstanding for accounting
purposes). For this purpose, Covenant Defeasance means that, with respect to
the outstanding Notes, the Company may omit to comply with and shall have no
liability in respect of any term, condition or limitation set forth in any such
covenant, whether directly or indirectly, by reason of any reference elsewhere
herein to any such covenant or by reason of any reference in any such covenant
to any other provision herein or in any other document and such omission to
comply shall not constitute a Default or an Event of Default under Section 6.01
hereof, but, except as specified above, the remainder of this Indenture and
such Notes shall be unaffected thereby. In addition, upon the Company’s
exercise under Section 8.01 hereof of the option applicable to this Section
8.03 hereof, subject to the satisfaction of the conditions set forth in Section
8.04 hereof, Section 6.01(c) through 6.01(f) hereof shall not constitute Events
of Default.


 


Section 8.04.            Conditions to Legal or Covenant Defeasance.


 


The
following shall be the conditions to the application of either Section 8.02 or
8.03 hereof to the outstanding Notes:


 


In
order to exercise either Legal Defeasance or Covenant Defeasance:


 


(a)           the Company must irrevocably deposit with the
Trustee, in trust, for the benefit of the Holders, cash in United States
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 and Special
Interest, if any, and interest on the outstanding Notes on the stated date for
payment thereof 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;


 


(b)           in the case of an election under Section 8.02
hereof, the Company shall have delivered to the Trustee an Opinion of Counsel
in the United States reasonably acceptable to the Trustee confirming that (A)
the Company has received from, or there has been published by, the Internal
Revenue Service a ruling or (B) since the date of this Indenture, there has
been a change in the applicable federal income tax law, in either case to the
effect that, and based thereon such Opinion of Counsel shall confirm that, the
Holders of the outstanding Notes will not recognize income, gain or loss for
federal income tax purposes as a result of such Legal Defeasance and will be
subject to federal income tax on the same amounts, in the same manner and at
the same times as would have been the case if such Legal Defeasance had not
occurred;


 


(c)           in the case of an election under Section 8.03
hereof, the Company shall have delivered to the Trustee an Opinion of Counsel
in the United States reasonably acceptable to the Trustee confirming that the
Holders of the outstanding Notes will not recognize income, gain or loss for
federal income tax purposes as a result of such Covenant Defeasance and will be
subject to federal income tax on the same amounts, in the same manner and at
the same times as would have been the case if such Covenant Defeasance had not
occurred;


 


(d)           no Default shall have occurred and be
continuing on the date of such deposit (other than a Default resulting from the
incurrence of Indebtedness all or a portion of the


 


69

















 


proceeds of which will be used to defease the Notes
pursuant to this Article 8 concurrently with such incurrence);


 


(e)           such Legal Defeasance or Covenant Defeasance
shall 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 Restricted Subsidiaries is a party or by which the
Company or any of its Restricted Subsidiaries is bound;


 


(f)            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 over any other creditors of
the Company or with the intent of defeating, hindering, delaying or defrauding
any other creditors of the Company; and


 


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


 


Section 8.05.            Deposited Money and Government Securities to
be Held in Trust; Other Miscellaneous Provisions.


 


Subject
to Section 8.06 hereof, all money and non-callable Government Securities
(including the proceeds thereof) deposited with the Trustee (or other
qualifying trustee, collectively for purposes of this Section 8.05, the “Trustee”)
pursuant to Section 8.04 hereof in respect of the outstanding Notes shall be
held in trust and applied by the Trustee, in accordance with the provisions of
such Notes and this Indenture, to the payment, either directly or through any
Paying Agent (including the Company acting as Paying Agent) as the Trustee may
determine, to the Holders of such Notes of all sums due and to become due
thereon in respect of principal, premium, if any, and interest, but such money
need not be segregated from other funds except to the extent required by law.


 


The
Company shall pay and indemnify the Trustee against any tax, fee or other
charge imposed on or assessed against the cash or non-callable Government
Securities deposited pursuant to Section 8.04 hereof or the principal and
interest received in respect thereof other than any such tax, fee or other
charge which by law is for the account of the Holders of the outstanding Notes.


 


Anything
in this Article 8 to the contrary notwithstanding, the Trustee shall deliver or
pay to the Company from time to time upon the request of the Company any money
or non-callable Government Securities held by it as provided in Section 8.04
hereof which, in the opinion of a nationally recognized firm of independent
public accountants expressed in a written certification thereof delivered to
the Trustee (which may be the opinion delivered under Section 8.04(a) hereof),
are in excess of the amount thereof that would then be required to be deposited
to effect an equivalent Legal Defeasance or Covenant Defeasance.


 


Section 8.06.            Repayment to Company.


 


Any
money deposited with the Trustee or any Paying Agent, or then held by the
Company, in trust for the payment of the principal of, premium, if any, or
interest on any Note and remaining unclaimed for two years after such
principal, and premium, if any, or interest has


 


70

















 


become due and payable shall be paid to the
Company on its request or (if then held by the Company) shall be discharged
from such trust; and the Holder of such Note shall thereafter look only to the
Company for payment thereof, and all liability of the Trustee or such Paying
Agent with respect to such trust money, and all liability of the Company as
trustee thereof, shall thereupon cease; provided that the Trustee or such
Paying Agent, before being required to make any such repayment, may at the
expense of the Company cause to be published once, in the New York Times and
The Wall Street Journal (national edition), notice that such money remains
unclaimed and that, after a date specified therein, which shall not be less
than 30 days from the date of such notification or publication, any unclaimed
balance of such money then remaining will be repaid to the Company.


 


Section 8.07.            Reinstatement.


 


If
the Trustee or Paying Agent is unable to apply any United States dollars or
non-callable Government Securities in accordance with Section 8.02 or 8.03
hereof, as the case may be, by reason of any order or judgment of any court or
governmental authority enjoining, restraining or otherwise prohibiting such
application, then the Company’s obligations under this Indenture and the Notes
shall be revived and reinstated as though no deposit had occurred pursuant to
Section 8.02 or 8.03 hereof until such time as the Trustee or Paying Agent is
permitted to apply all such money in accordance with Section 8.02 or 8.03
hereof, as the case may be; provided that, if the Company makes any payment of
principal of, premium, if any, or interest on any Note following 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 held by the
Trustee or Paying Agent.


 


ARTICLE 9

AMENDMENT, SUPPLEMENT AND WAIVER


 


Section 9.01.            Without Consent of Holders of Notes.


 


Notwithstanding
Section 9.02 of this Indenture, the Company, the Guarantors and the Trustee may
amend or supplement this Indenture, the Subsidiary Guarantees or the Notes
without the consent of any Holder of a Note:


 


(a)           to cure any ambiguity, defect or
inconsistency or to make a modification of a formal, minor or technical nature
or to correct a manifest error;


 


(b)           to provide for uncertificated Notes in
addition to or in place of certificated Notes or to alter the provisions of
Article 2 hereof (including the related definitions) in a manner that does not
materially adversely affect any Holder;


 


(c)           to provide for the assumption of the
Company’s or a Guarantor’s obligations to the Holders of the Notes by a
successor to the Company pursuant to Article 5 or hereof;


 


(d)           to add Guarantees with respect to the Notes
or to secure the Notes;


 


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(e)           to add to the covenants of the Company or any
Guarantor for the benefit of the Holders of the Notes or surrender any right or
power conferred upon the Company or any Guarantor;


 


(f)            to make any change that would provide any
additional rights or benefits to the Holders of the Notes or that does not
adversely affect the legal rights hereunder of any Holder of a Note;


 


(g)           to comply with requirements of the SEC in
order to effect or maintain the qualification of this Indenture under the TIA;


 


(h)           to evidence and provide for the acceptance
and appointment under this Indenture of a successor Trustee pursuant to the
requirements hereof; or


 


(i)            to provide for the issuance of exchange or
private exchange notes.


 


However,
no amendment may be made to Article 10 of this Indenture or the conditions
precedent to Legal Defeasance and Covenant Defeasance set forth in clause (e)
of Section 8.04 hereof, in each case, that adversely affects the rights of any
holder of Senior Debt of the Company or a Guarantor then outstanding unless the
holders of such Senior Debt (or their representative) consent to such change.


 


Upon
the request of the Company accompanied by a resolution of its Board of
Directors authorizing the execution of any such amended or supplemental Indenture,
and upon receipt by the Trustee of the documents described in Section 7.02
hereof, the Trustee shall join with the Company and the Guarantors in the
execution of any amended or supplemental Indenture authorized or permitted by
the terms of this Indenture and to make any further appropriate agreements and
stipulations that may be therein contained, but the Trustee shall not be
obligated to enter into such amended or supplemental Indenture that affects its
own rights, duties or immunities under this Indenture or otherwise.


 


Section 9.02.            With Consent of Holders of Notes.


 


Except
as provided below in this Section 9.02, the Company and the Trustee may amend
or supplement this Indenture (including Section 3.09, 4.10 and 4.15 hereof),
the Subsidiary Guarantees and the Notes with the consent of the Holders of at
least a majority in principal amount of the Notes (including Additional Notes,
if any) then outstanding voting as a single class (including consents obtained
in connection with a tender offer or exchange offer for, or purchase of, the
Notes), and, subject to Sections 6.04 and 6.07 hereof, any existing Default or
Event of Default (other than a Default or Event of Default in the payment of
the principal of, premium, if any, or interest on the Notes, except a payment
default resulting from an acceleration that has been rescinded) or compliance
with any provision of this Indenture, the Subsidiary Guarantees or the Notes
may be waived with the consent of the Holders of a majority in principal amount
of the then outstanding Notes (including Additional Notes, if any) voting as a
single class (including consents obtained in connection with a tender offer or
exchange offer for, or purchase of, the Notes). Without the consent of at least
75% in principal amount of the Notes then outstanding (including consents
obtained in connection with a tender offer or exchange offer for, or purchase
of, such Notes), no waiver or amendment to this Indenture may make any change
in the provisions of Article 10 hereof that adversely affects the rights of any
Holder of Notes.


 


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Section 2.08 hereof shall determine which
Notes are considered to be “outstanding” for purposes of this Section
9.02.


 


Upon
the request of the Company accompanied by a resolution of its Board of
Directors authorizing the execution of any such amended or supplemental
Indenture, and upon the filing with the Trustee of evidence satisfactory to the
Trustee of the consent of the Holders of Notes as aforesaid, and upon receipt
by the Trustee of the documents described in Section 7.02 hereof, the Trustee
shall join with the Company in the execution of such amended or supplemental
Indenture unless such amended or supplemental Indenture directly affects the
Trustee’s own rights, duties or immunities under this Indenture or otherwise,
in which case the Trustee may in its discretion, but shall not be obligated to,
enter into such amended or supplemental Indenture.


 


It
shall not be necessary for the consent of the Holders of Notes under this
Section 9.02 to approve the particular form of any proposed amendment or
waiver, but it shall be sufficient if such consent approves the substance
thereof.


 


After
an amendment, supplement or waiver under this Section becomes effective, the
Company shall mail to the Holders of Notes affected thereby a notice briefly
describing the amendment, supplement or waiver. Any failure of the Company to
mail such notice, or any defect therein, shall not, however, in any way impair
or affect the validity of any such amended or supplemental Indenture or waiver.
Subject to Sections 6.04 and 6.07 hereof, the Holders of a majority in
aggregate principal amount of the Notes (including Additional Notes, if any)
then outstanding voting as a single class may waive compliance in a particular
instance by the Company with any provision of this Indenture or the Notes.
However, without the consent of each Holder affected, an amendment or waiver
under this Section 9.02 may not (with respect to any Notes held by a non-consenting
Holder):


 


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


 


(b)           reduce the principal of or change the fixed
maturity of any Note or alter or waive any of the provisions with respect to the
redemption of the Notes (other than the provisions of Sections 3.09, 4.10 and
4.15 relating to the obligation of the Company to make an offer to repurchase
Notes);


 


(c)           reduce the rate of or change the time for
payment of interest, including default interest, on any Note;


 


(d)           waive a Default or Event of Default in the
payment of principal of or interest or premium, or Special Interest, if any, 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 then outstanding Notes
(including Additional Notes, if any) and a waiver of the payment default that
resulted from such acceleration);


 


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


 


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(f)            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 interest or premium or Special
Interest, if any, on the Notes;


 


(g)           waive a redemption payment with respect to
any Note (other than pursuant to the provisions of Sections 3.09, 4.10 and
4.15);


 


(h)           release any Guarantor from any of its
obligations under its Subsidiary Guarantee or this Indenture, except in accordance
with the terms of this Indenture; or


 


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


 


Section 9.03.            Compliance with Trust Indenture Act.


 


Every
amendment or supplement to this Indenture or the Notes shall be set forth in an
amended or supplemental Indenture that complies with the TIA as then in effect.


 


Section 9.04.            Revocation and Effect of Consents.


 


Until
an amendment, supplement or waiver becomes effective, a consent to it by a
Holder of a Note is a continuing consent by the Holder of a Note and every
subsequent Holder of a Note or portion of a Note that evidences the same debt
as the consenting Holder’s Note, even if notation of the consent is not made on
any Note. However, any such Holder of a Note or subsequent Holder of a Note may
revoke the consent as to its Note if the Trustee receives written notice of
revocation before the date the waiver, supplement or amendment becomes
effective. An amendment, supplement or waiver becomes effective in accordance
with its terms and thereafter binds every Holder.


 


Section 9.05.            Notation on or Exchange of Notes.


 


The
Trustee may place an appropriate notation about an amendment, supplement or
waiver on any Note thereafter authenticated. The Company in exchange for all
Notes may issue and the Trustee shall, upon receipt of an Authentication Order,
authenticate new Notes that reflect the amendment, supplement or waiver.


 


Failure
to make the appropriate notation or issue a new Note shall not affect the
validity and effect of such amendment, supplement or waiver.


 


Section 9.06.            Trustee to Sign Amendments, etc.


 


The
Trustee shall sign any amended or supplemental Indenture authorized pursuant to
this Article 9 if the amendment or supplement does not affect the rights,
duties, liabilities or immunities of the Trustee. The Company may not sign an
amendment or supplemental Indenture until the Board of Directors approves it.
In executing any amended or supplemental indenture, the Trustee shall be
provided with and (subject to Section 7.01 hereof) shall be fully protected in
relying upon, in addition to the documents required by Section 13.04 hereof, an
Officers’ Certificate and an Opinion of Counsel stating that the execution of
such amended or supplemental indenture is authorized or permitted by this Indenture.


 


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ARTICLE 10

SUBORDINATION


 


Section 10.01.          Agreement to Subordinate.


 


The
Company agrees, and each Holder by accepting a Note agrees, that the
Indebtedness evidenced by the Notes is subordinated in right of payment, to the
extent and in the manner provided in this Article 10, to the prior payment in
full in cash or Cash Equivalents of all Senior Debt (whether outstanding on the
date hereof or hereafter created, incurred, assumed or guaranteed), and that
the subordination is for the benefit of the holders of Senior Debt.


 


Section 10.02.          Liquidation; Dissolution; Bankruptcy.


 


Upon
any distribution to creditors of the Company in a liquidation or dissolution of
the Company or in a bankruptcy, reorganization, insolvency, receivership or
similar proceeding relating to the Company or its property, in an assignment
for the benefit of creditors or any marshaling of the Company’s assets and
liabilities:


 


(i)            holders
of Senior Debt shall be entitled to receive payment in full of all Obligations
due in respect of such Senior Debt (including interest after the commencement
of any such proceeding at the rate specified in the applicable Senior Debt)
before Holders of the Notes shall be entitled to receive any payment with
respect to the Notes (except that Holders may receive (A) Permitted Junior
Securities and (B) payments and other distributions made from any defeasance
trust created pursuant to Section 8.01 hereof); and


 


(ii)           until
all Obligations with respect to Senior Debt (as provided in clause (i) above)
are paid in full, any distribution to which Holders would be entitled but for
this Article 10 shall be made to holders of Senior Debt (except that Holders of
Notes may receive (A) Permitted Junior Securities and (B) payments and other
distributions made from any defeasance trust created pursuant to Section 8.01
hereof), as their interests may appear.


 


Section 10.03.          Default on Designated Senior Debt.


 


(a)           The Company may not make any payment or
distribution to the Trustee or any Holder in respect of Obligations with
respect to the Notes and may not acquire from the Trustee or any Holder any
Notes for cash or property (other than (A) Permitted Junior Securities and (B)
payments and other distributions made from any defeasance trust created
pursuant to Section 8.01 hereof) until all principal and other Obligations with
respect to the Senior Debt have been paid in full if:


 


(i)            a
default in the payment of Designated Senior Debt occurs and is continuing
beyond any applicable period of grace; or


 


(ii)           a
default, other than a payment default, on any series of Designated Senior Debt
occurs and is continuing that then permits holders of the Designated Senior
Debt to accelerate its maturity and the Trustee receives a notice of the
default (a “Payment Blockage Notice”) from the Company or the holders of
any such


 


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Designated
Senior Debt or their representative. If the Trustee receives any such Payment
Blockage Notice, no subsequent Payment Blockage Notice shall be effective for
purposes of this Section unless and until (A) at least 360 days shall have
elapsed since the delivery of the immediately prior Payment Blockage Notice and
(B) all scheduled payments of principal, interest and premium and Special
Interest, if any, on the Notes that have come due have been paid in full in
cash. No nonpayment default that existed or was continuing on the date of
delivery of any Payment Blockage Notice to the Trustee shall be, or be made,
the basis for a subsequent Payment Blockage Notice unless such default shall
have been cured or waived for a period of not less than 180 days.


 


(b)           The Company shall resume payments on and
distributions in respect of the Notes and may acquire them upon the earlier of:


 


(i)            in
the case of a default referred to in clause (i) of Section 10.03(a) hereof, the
date upon which the default is cured or waived, or


 


(ii)           in
the case of a default referred to in clause (ii) of Section 10.03(a) hereof,
upon the earlier of the date on which such non-payment default is cured or
waived or 179 days pass after the date on which the applicable Payment Blockage
Notice is received, unless the maturity of such Designated Senior Debt has been
accelerated,


 


if
this Article 10 otherwise permits the payment, distribution or acquisition at
the time of such payment or acquisition.


 


Section 10.04.          Acceleration of Notes.


 


If
payment of the Notes is accelerated because of an Event of Default, the Company
shall promptly notify holders of Senior Debt of the acceleration.


 


Section 10.05.          When Distribution Must Be Paid Over.


 


In
the event that the Trustee or any Holder receives any payment of any
Obligations with respect to the Notes at a time when the Trustee or such
Holder, as applicable, has actual knowledge that such payment is prohibited by
Section 10.03 hereof, such payment shall be held by the Trustee or such Holder,
in trust for the benefit of, and shall be paid forthwith over and delivered,
upon written request, to, the holders of Senior Debt as their interests may
appear or their Representative under the indenture or other agreement (if any)
pursuant to which Senior Debt may have been issued, as their respective
interests may appear, for application to the payment of all Obligations with
respect to Senior Debt remaining unpaid to the extent necessary to pay such
Obligations in full in accordance with their terms, after giving effect to any
concurrent payment or distribution to or for the holders of Senior Debt.


 


With
respect to the holders of Senior Debt, the Trustee undertakes to perform only
such obligations on the part of the Trustee as are specifically set forth in
this Article 10, and no implied covenants or obligations with respect to the
holders of Senior Debt shall be read into this Indenture against the Trustee.
The Trustee shall not be deemed to owe any fiduciary duty to the holders of
Senior Debt, and shall not be liable to any such holders if the Trustee shall
pay over or distribute to or on behalf of Holders or the Company or any other
Person money or assets to


 


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which any holders of Senior Debt shall be
entitled by virtue of this Article 10, except if such payment is made as a
result of the willful misconduct or gross negligence of the Trustee.


 


Section 10.06.          Notice by Company.


 


The
Company shall promptly notify the Trustee and the Paying Agent of any facts
known to the Company that would cause a payment of any Obligations with respect
to the Notes to violate this Article 10, but failure to give such notice shall
not affect the subordination of the Notes to the Senior Debt as provided in
this Article 10.


 


Section 10.07.          Subrogation.


 


After
all Senior Debt is paid in full and until the Notes are paid in full, Holders
of Notes shall be subrogated (equally and ratably with all other Indebtedness pari passu with the Notes) to the rights
of holders of Senior Debt to receive distributions applicable to Senior Debt to
the extent that distributions otherwise payable to the Holders of Notes have
been applied to the payment of Senior Debt. A distribution made under this
Article 10 to holders of Senior Debt that otherwise would have been made to
Holders of Notes is not, as between the Company and Holders, a payment by the
Company on the Notes.


 


Section 10.08.          Relative Rights.


 


This
Article 10 defines the relative rights of Holders of Notes and holders of
Senior Debt. Nothing in this Indenture shall:


 


(i)            impair,
as between the Company and Holders of Notes, the obligation of the Company, which
is absolute and unconditional, to pay principal of and interest on the Notes in
accordance with their terms;


 


(ii)           affect
the relative rights of Holders of Notes and creditors of the Company other than
their rights in relation to holders of Senior Debt; or


 


(iii)          prevent
the Trustee or any Holder of Notes from exercising its available remedies upon
a Default or Event of Default, subject to the rights of holders and owners of
Senior Debt to receive distributions and payments otherwise payable to Holders
of Notes.


 


If
the Company fails because of this Article 10 to pay principal of or interest on
a Note on the due date, the failure is still a Default or Event of Default.


 


Section 10.09.          Subordination May Not Be Impaired by Company.


 


No
right of any holder of Senior Debt to enforce the subordination of the
Indebtedness evidenced by the Notes shall be impaired by any act or failure to
act by the Company or any Holder or by the failure of the Company or any Holder
to comply with this Indenture.


 


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Section 10.10.          Distribution or Notice to Representative.


 


Whenever
a distribution is to be made or a notice given to holders of Senior Debt, the
distribution may be made and the notice given to their Representative.


 


Upon
any payment or distribution of assets of the Company referred to in this
Article 10, the Trustee and the Holders of Notes shall be entitled to rely upon
any order or decree made by any court of competent jurisdiction or upon any
certificate of such Representative or of the liquidating trustee or agent or
other Person making any distribution to the Trustee or to the Holders of Notes
for the purpose of ascertaining the Persons entitled to participate in such
distribution, the holders of the Senior Debt and other Indebtedness of the
Company, the amount thereof or payable thereon, the amount or amounts paid or
distributed thereon and all other facts pertinent thereto or to this Article
10.


 


Section 10.11.          Rights of Trustee and Paying Agent.


 


Notwithstanding
the provisions of this Article 10 or any other provision of this Indenture, the
Trustee shall not be charged with knowledge of the existence of any facts that
would prohibit the making of any payment or distribution by the Trustee, and
the Trustee and the Paying Agent may continue to make payments on the Notes,
unless the Trustee shall have received at its Corporate Trust Office at least
five Business Days prior to the date of such payment written notice of facts
that would cause the payment of any Obligations with respect to the Notes to
violate this Article 10. Nothing in this Article 10 shall impair the claims of,
or payments to, the Trustee under or pursuant to Section 7.07 hereof.


 


The
Trustee in its individual or any other capacity may hold Senior Debt with the
same rights it would have if it were not Trustee. Any Agent may do the same
with like rights.


 


Section 10.12.          Authorization to Effect Subordination.


 


Each
Holder of Notes, by the Holder’s acceptance thereof, authorizes and directs the
Trustee on such Holder’s behalf to take such action as may be necessary or
appropriate to effectuate the subordination as provided in this Article 10, and
appoints the Trustee to act as such Holder’s attorney-in-fact for any and all
such purposes. If the Trustee does not file a proper proof of claim or proof of
debt in the form required in any proceeding referred to in Section 6.09 hereof
at least 30 days before the expiration of the time to file such claim, the
Representatives are hereby authorized to file an appropriate claim for and on
behalf of the Holders of the Notes.


 


Section 10.13.          Amendments.


 


The
provisions of this Article 10 shall not be amended or modified in a manner that
adversely affects the rights of any holder of Senior Debt without the written
consent of the holder of such Senior Debt (or their representative).


 


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ARTICLE 11

SUBSIDIARY GUARANTEES


 


Section 11.01.          Guarantees.


 


Subject
to this Article 11, each of the Guarantors hereby, jointly and severally,
unconditionally guarantees to each Holder of a Note authenticated and delivered
by the Trustee and to the Trustee and its successors and assigns, irrespective
of the validity and enforceability of this Indenture, the Notes or the
obligations of the Company hereunder or thereunder, that: (a) the principal and
premium, if any, of and interest and Special Interest, if any, on the Notes
will be promptly paid in full when due, whether at maturity, by acceleration,
redemption or otherwise, and interest on the overdue principal and premium, if
any of and interest and Special Interest, if any, on the Notes, if any, if
lawful, and all other obligations of the Company to the Holders or the Trustee
hereunder or thereunder will be promptly paid in full or performed, all in
accordance with the terms hereof and thereof; and (b) in case of any extension
of time of payment or renewal of any Notes or any of such other obligations,
that same will be promptly paid in full when due or performed in accordance
with the terms of the extension or renewal, whether at stated maturity, by
acceleration or otherwise.  In addition
to the foregoing, each Guarantor also agrees, unconditionally and jointly and
severally with each other Guarantor, to pay any and all expenses (including, without
limitation, counsel fees and expenses) incurred by the Trustee under this
Indenture in enforcing any rights under a Subsidiary Guarantee with respect to
a Guarantor.  Failing payment when due
of any amount so guaranteed or any performance so guaranteed for whatever
reason, the Guarantors shall be jointly and severally obligated to pay the same
immediately. Each Guarantor agrees that this is a guarantee of payment and not
a guarantee of collection.


 


The
Guarantors hereby agree that their obligations hereunder shall be
unconditional, irrespective of the validity, regularity or enforceability of
the Notes or this Indenture, the absence of any action to enforce the same, any
waiver or consent by any Holder of the Notes with respect to any provisions
hereof or thereof, the recovery of any judgment against the Company, any action
to enforce the same or any other circumstance which might otherwise constitute
a legal or equitable discharge or defense of a guarantor.  Each Guarantor hereby waives diligence, presentment,
demand of payment, filing of claims with a court in the event of insolvency or
bankruptcy of the Company, any right to require a proceeding first against the
Company, protest, notice and all demands whatsoever and covenant that this
Subsidiary Guarantee shall not be discharged except by complete performance of
the obligations contained in the Notes and this Indenture.


 


If
any Holder or the Trustee is required by any court or otherwise to return to
the Company, the Guarantors or any custodian, trustee, liquidator or other
similar official acting in relation to either the Company or the Guarantors,
any amount paid by either to the Trustee or such Holder, this Subsidiary
Guarantee, to the extent theretofore discharged, shall be reinstated in full
force and effect.


 


Each
Guarantor agrees that it shall not be entitled to any right of subrogation in
relation to the Holders in respect of any obligations guaranteed hereby until
payment in full of all obligations guaranteed hereby. Each Guarantor further
agrees that, as between the Guarantors, on the one hand, and the Holders and
the Trustee, on the other hand, (x) the maturity of the obligations guaranteed
hereby may be accelerated as provided in Article 6 hereof for the purposes


 


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of this Subsidiary Guarantee, notwithstanding
any stay, injunction or other prohibition preventing such acceleration in
respect of the obligations guaranteed hereby, and (y) in the event of any
declaration of acceleration of such obligations as provided in Article 6
hereof, such obligations (whether or not due and payable) shall forthwith
become due and payable by the Guarantors for the purpose of this Subsidiary
Guarantee. The Guarantors shall have the right to seek contribution from any
non-paying Guarantor so long as the exercise of such right does not impair the
rights of the Holders under the Guarantee.


 


Section 11.02.          Subordination of Subsidiary Guarantees.


 


The
Obligations of each Guarantor under its Subsidiary Guarantee pursuant to this
Article 11 shall be junior and subordinated to the Senior Debt of such
Guarantor on the same basis as the Notes are junior and subordinated to Senior
Debt of the Company as set forth in Article 10 hereof. Each Subsidiary
Guarantee is made subject to the provisions of Article 10 hereof. For the
purposes of the foregoing sentence, the Trustee and the Holders shall have the
right to receive and/or retain payments by any of the Guarantors only at such
times as they may receive and/or retain payments in respect of the Notes
pursuant to this Indenture, including Article 10 hereof.


 


Section 11.03.          Limitation on Guarantor Liability.


 


Each
Guarantor, and by its acceptance of Notes, each Holder, hereby confirms that it
is the intention of all such parties that the Subsidiary Guarantee of such
Guarantor not constitute a fraudulent transfer or conveyance for purposes of
Bankruptcy Law, the Uniform Fraudulent Conveyance Act, the Uniform Fraudulent
Transfer Act or any similar federal or state law to the extent applicable to
any Subsidiary Guarantee. To effectuate the foregoing intention, the Trustee,
the Holders and the Guarantors hereby irrevocably agree that the obligations of
such Guarantor will, after giving effect to such maximum amount and all other
contingent and fixed liabilities of such Guarantor that are relevant under such
laws, and after giving effect to any collections from, rights to receive
contribution from or payments made by or on behalf of any other Guarantor in
respect of the obligations of such other Guarantor under this Article 11,
result in the obligations of such Guarantor under its Subsidiary Guarantee not
constituting a fraudulent transfer or conveyance.


 


Section 11.04.          Execution and Delivery of Subsidiary
Guarantees.


 


To
evidence its Subsidiary Guarantee set forth in Section 11.01, each Guarantor
hereby agrees that a notation of such Subsidiary Guarantee substantially in the
form included in Exhibit E shall be endorsed by an Officer of such Guarantor or
by its duly appointed attorney-in-fact on each Note authenticated and delivered
by the Trustee and that this Indenture shall be executed on behalf of such
Guarantor by its President or one of its Vice Presidents or by its duly
appointed attorney-in-fact.


 


Each
Guarantor hereby agrees that its Subsidiary Guarantee set forth in Section
11.01 shall remain in full force and effect notwithstanding any failure to
endorse on each Subsidiary a notation of such Subsidiary Guarantee.  The execution of a Subsidiary Guarantee on
behalf of a Guarantor by its attorney-in-fact shall constitute a representation
and warranty on the part of such Guarantor hereunder of the due appointment of
such attorney-in-fact.


 


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If
an Officer or duly appointed attorney-in-fact whose signature is on this
Indenture or on a Subsidiary Guarantee no longer holds that office or maintains
such appointment, as the case may be, at the time the Trustee authenticates the
Note on which a Subsidiary Guarantee is endorsed, the Subsidiary Guarantee
shall be valid nevertheless.


 


The
delivery of any Note by the Trustee, after the authentication thereof
hereunder, shall constitute due delivery of the Subsidiary Guarantee set forth
in this Indenture on behalf of the Guarantors and each of them.


 


In
the event that the Company creates or acquires any new Domestic Subsidiaries
subsequent to the date of this Indenture, if required by Section 4.17 hereof,
the Company shall cause such Domestic Subsidiaries to execute supplemental
indentures to this Indenture and Subsidiary Guarantees in accordance with
Section 4.17 hereof and this Article 11, to the extent applicable.


 


Section 11.05.          Guarantors May Consolidate, etc., on Certain
Terms.


 


Except
as otherwise provided in Section 11.06, no Guarantor may sell or otherwise
dispose of all or substantially all of its assets to, or consolidate with or
merge with or into (whether or not such Guarantor is the surviving Person)
another Person whether or not affiliated with such Guarantor unless:


 


(a)           immediately after giving effect to that
transaction, no Default exists; and


 


(b)           either:


 


(1)           the
Person acquiring the property in any such sale or disposition or the Person
formed by or surviving any such consolidation or merger, if other than such
Guarantor, assumes all the obligations of that Guarantor under this Indenture,
its Subsidiary Guarantee and, if the Exchange Offer has not been consummated or
Special Interest remains due and owing, under the Registration Rights Agreement
pursuant to a supplemental indenture in form and substance reasonably
satisfactory to the Trustee and completes all other required documentation; or


 


(2)           the
Net Proceeds, if any, of such sale or other disposition are applied in
accordance with the provisions of the third paragraph of Section 4.10 of this
Indenture;


 


In
case of any such consolidation, merger, sale or conveyance and upon the
assumption by the successor Person, by supplemental indenture, executed and
delivered to the Trustee and satisfactory in form to the Trustee, of the Subsidiary
Guarantee endorsed upon the Notes and the due and punctual performance of all
of the covenants and conditions of this Indenture to be performed by the
Guarantor, such successor Person shall succeed to and be substituted for the
Guarantor with the same effect as if it had been named herein as a Guarantor.
Such successor Person thereupon may cause to be signed any or all of the
Subsidiary Guarantees to be endorsed upon all of the Notes issuable hereunder
which theretofore shall not have been signed by the Company and delivered to
the Trustee. All the Subsidiary Guarantees so issued shall in all respects have
the same legal rank and benefit under this Indenture as the Subsidiary


 


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Guarantees theretofore and thereafter issued
in accordance with the terms of this Indenture as though all of such Subsidiary
Guarantees had been issued at the date of the execution hereof.


 


Except
as set forth in Articles 4 and 5 hereof, and notwithstanding clauses (a) and
(b) above, nothing contained in this Indenture or in any of the Notes shall
prevent any consolidation or merger of a Guarantor with or into the Company or
another Guarantor, or shall prevent any sale or conveyance of the property of a
Guarantor as an entirety or substantially as an entirety to the Company or
another Guarantor.


 


Section 11.06.          Releases Following Sale of Assets.


 


In
the event of a sale or other disposition of all or substantially all of the
assets of any Guarantor, by way of merger, consolidation or otherwise, or a
sale or other disposition of all of the capital stock of any Guarantor, in each
case to a Person that is not (either before or after giving effect to such
transactions) a Restricted Subsidiary of the Company, then such Guarantor (in
the event of a sale or other disposition, by way of merger, consolidation or
otherwise, of all of the capital stock of such Guarantor) or the corporation
acquiring the property (in the event of a sale or other disposition of all or
substantially all of the assets of such Guarantor) will be released and
relieved of any obligations under its Subsidiary Guarantee; provided that the
Net Proceeds, if any, of such sale or other disposition are applied in
accordance with the applicable provisions of this Indenture, including without
limitation Section 4.10 hereof. Upon delivery by the Company to the Trustee of
an Officers’ Certificate and an Opinion of Counsel to the effect that such sale
or other disposition was made by the Company in accordance with the provisions
of this Indenture, including without limitation Section 4.10 hereof, the
Trustee shall execute any documents reasonably required in order to evidence
the release of any Guarantor from its obligations under its Subsidiary
Guarantee.


 


Any
Guarantor not released from its obligations under its Subsidiary Guarantee
shall remain liable for the full amount of principal of and interest on the
Notes and for the other obligations of any Guarantor under this Indenture as
provided in this Article 11.


 


ARTICLE 12

SATISFACTION AND DISCHARGE


 


Section 12.01.          Satisfaction and Discharge.


 


This
Indenture will be discharged and will cease to be of further effect as to all
Notes issued hereunder, when:


 


(1)           either:


 


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


 


(b)           all
Notes that have not been delivered to the Trustee for cancellation have become
due and payable by reason of the mailing of a notice of redemption or otherwise
or will become due and payable within one year and the


 


82

















 


Company or any Guarantor has irrevocably deposited or caused to be
deposited with the Trustee as trust funds in trust solely for the benefit of
the Holders, cash in U.S. dollars, non-callable Government Securities, or a
combination thereof, in such amounts as will be sufficient without
consideration of any reinvestment of interest, to pay and discharge the entire
indebtedness on the Notes not delivered to the Trustee for cancellation for
principal, premium and Special Interest, if any, and accrued interest to the
date of maturity or redemption;


 


(2)           no
Default or Event of Default shall have occurred and be continuing on the date
of such deposit or shall occur as a result of such deposit and such deposit
will not result in a breach or violation of, or constitute a default under, any
other instrument to which the Company or any Guarantor is a party or by which
the Company or any Guarantor is bound;


 


(3)           the
Company or any Guarantor has paid or caused to be paid all sums payable by it
under this Indenture; and


 


(4)           the
Company has delivered irrevocable instructions to the Trustee under this
Indenture to apply the deposited money toward the payment of the Notes at
maturity or the redemption date, as the case may be.


 


In
addition, the Company must deliver an Officers’ Certificate and an Opinion of
Counsel to the Trustee stating that all conditions precedent to satisfaction
and discharge have been satisfied, and the Trustee on demand of and at the
expense of the Company, shall execute proper instruments acknowledging
satisfaction and discharge of this Indenture.


 


Notwithstanding
the satisfaction and discharge of this Indenture, if money shall have been
deposited with the Trustee pursuant to subclause (b) of clause (1) of this
Section, the provisions of Section 12.02 and Section 8.06 shall survive such
satisfaction and discharge.


 


Section 12.02.          Application of Trust Money.


 


Subject
to the provisions of Section 8.06, all money deposited with the Trustee
pursuant to Section 12.01 shall be held in trust and applied by it, in
accordance with the provisions of the Notes and this Indenture, to the payment,
either directly or through any Paying Agent (including the Company acting as
its own Paying Agent) as the Trustee may determine, to the Persons entitled
thereto, of the principal (and premium, if any) and interest for whose payment
such money has been deposited with the Trustee; but such money need not be
segregated from other funds except to the extent required by law.


 


If
the Trustee or Paying Agent is unable to apply any money or Government
Securities in accordance with Section 12.01 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 any Guarantor’s obligations under this Indenture and the Notes shall be
revived and reinstated as though no deposit had occurred pursuant to Section
12.01; provided that if the Company has made any payment of principal of,
premium, if any, or interest on 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.


 


83

















 


ARTICLE 13

MISCELLANEOUS


 


Section 13.01.          Trust Indenture Act Controls.


 


If
any provision of this Indenture limits, qualifies or conflicts with the duties
imposed by TIA § 318(c), the imposed duties shall control.


 


Section 13.02.          Notices.


 


Any
notice or communication by the Company, any Guarantor or the Trustee to the
others is duly given if in writing and delivered in Person or mailed by first
class mail (registered or certified, return receipt requested), telex,
telecopier or overnight air courier guaranteeing next day delivery, to the
others’ address:


 


	
  If
  to the Company and/or any Guarantor:

  	
   

  
	
   

  	
   

  
	
  Asbury
  Automotive Group, Inc.

  3 Landmark Square, Suite 500

  Stamford, Connecticut 06901

  Telecopier No.: (203) 356-4450

  Attention:  Chief Financial Officer

  	
   

  
	
   

  	
   

  
	
  With
  a copy to:

  	
   

  
	
   

  	
   

  
	
  Cravath,
  Swaine & Moore LLP

  825 Eighth Avenue

  Worldwide Plaza New York, NY 
  10019-7475

  Telecopier No.:  (212) 474-3700

  Attention:  Robert Rosenman

  	
   

  
	
   

  	
   

  
	
  If
  to the Trustee:

  	
   

  
	
   

  	
   

  
	
  The
  Bank of New York

  101 Barclay Street, Floor 8W

  New York, New York  10286

  Telecopier No.:  (646) 835-8470

  Attention:  Ming Ryan

  	
   

  



 


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


 


All
notices and communications (other than those sent to Holders) shall be deemed
to have been duly given: at the time delivered by hand, if personally
delivered; five Business Days after being deposited in the mail, postage
prepaid, if mailed; when answered back, if telexed; when receipt acknowledged,
if telecopied; and the next Business Day after timely delivery to the courier,
if sent by overnight air courier guaranteeing next day delivery.


 


84

















 


Any
notice or communication to a Holder shall be mailed by first class mail,
certified or registered, return receipt requested, or by overnight air courier
guaranteeing next day delivery to its address shown on the register kept by the
Registrar. Any notice or communication shall also be so mailed to any Person
described in TIA § 313(c), to the extent required by the TIA. Failure to mail 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 mailed in the manner provided above within the
time prescribed, it is duly given, whether or not the addressee receives it.


 


If
the Company mails a notice or communication to Holders, it shall mail a copy to
the Trustee and each Agent at the same time.


 


Section 13.03.          Communication by Holders of Notes with Other
Holders of Notes.


 


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


 


Section 13.04.          Certificate and Opinion as to Conditions
Precedent.


 


Upon
any request or application by the Company to the Trustee to take 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 (which shall include the
statements set forth in Section 13.05 hereof) stating that, in the opinion of
the signers, all conditions precedent and covenants, if any, provided for in
this Indenture relating to the proposed action have been satisfied; and


 


(b)           an Opinion of Counsel in form and substance
reasonably satisfactory to the Trustee (which shall include the statements set
forth in Section 13.05 hereof) stating that, in the opinion of such counsel,
all such conditions precedent and covenants have been satisfied.


 


Section 13.05.          Statements Required in Certificate or Opinion.


 


Each
certificate or opinion with respect to compliance with a condition or covenant
provided for in this Indenture (other than a certificate provided pursuant to
TIA § 314(a)(4)) shall comply with the provisions of TIA § 314(e) and shall
include:


 


(a)           a statement that the Person 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
Person, he or she 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 satisfied; and


 


85

















 


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


 


Section 13.06.          Rules by Trustee and Agents.


 


The
Trustee may make reasonable rules for action by or at a meeting of Holders. The
Registrar or Paying Agent may make reasonable rules and set reasonable
requirements for its functions.


 


Section 13.07.          No Personal Liability of Directors, Officers,
Employees and Stockholders.


 


No
past, present or future director, officer, employee, incorporator or
stockholder of the Company or any Guarantor, as such, shall have any liability
for any obligations of the Company or such Guarantor under the Notes, the
Subsidiary Guarantees, this Indenture or for any claim based on, in respect of,
or by reason of, such obligations or their creation. Each Holder by accepting a
Note waives and releases all such liability. The waiver and release are part of
the consideration for issuance of the Notes.


 


Section 13.08.          Governing Law.


 


THE
INTERNAL LAW OF THE STATE OF NEW YORK SHALL GOVERN AND BE USED TO CONSTRUE THIS
INDENTURE, THE NOTES AND THE SUBSIDIARY GUARANTEES.


 


Section 13.09.          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 its Subsidiaries or of any other Person. Any such
indenture, loan or debt agreement may not be used to interpret this Indenture.


 


Section 13.10.          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. All agreements of each Guarantor in this Indenture shall bind its
successors, except as otherwise provided in Section 11.05.


 


Section 13.11.          Severability.


 


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


 


Section 13.12.          Counterpart Originals.


 


This
Indenture may be executed in two or more separate counterparts. Each executed
counterpart shall be an original, but all of them together represent the same
agreement.


 


86

















 


Section 13.13.          Table of Contents, Headings, etc.


 


The
Table of Contents, Cross-Reference Table and Headings of the Articles and
Sections of this Indenture have been inserted for convenience of reference
only, are not to be considered a part of this Indenture and shall in no way
modify or restrict any of the terms or provisions hereof.


 


Section 13.14.          Benefits of Indenture.


 


Nothing
in this Indenture, the Notes or the Subsidiary Guarantees, express or implied,
shall give to any Person, other than the parties hereto and their successors
hereunder, the holders of Senior Debt and the Hold­ers, any benefit or any
legal or equitable right, remedy or claim under this Indenture.


 


[SIGNATURE PAGE FOLLOWS]


 


87

















 


SIGNATURES


 


Dated
as of December 23, 2003


 


	
   

  	
  Asbury
  Automotive Group, Inc.

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  J.G. Smith

  	
   

  
	
   

  	
   

  	
  Name:

  Title:

  



 


	
   

  	
  Asbury
  Automotive Management L.L.C.

  
	
   

  	
  Asbury
  Arkansas Hund L.L.C.

  
	
   

  	
  Asbury
  Automotive Arkansas Dealership Holdings L.L.C.

  
	
   

  	
  Asbury
  Automotive Arkansas L.L.C.

  
	
   

  	
  Asbury
  MS Gray-Daniels L.L.C.

  
	
   

  	
  Asbury
  MS Metro L.L.C.

  
	
   

  	
  Escude-D
  L.L.C.

  
	
   

  	
  Escude-M
  L.L.C.

  
	
   

  	
  Escude-MO
  L.L.C.

  
	
   

  	
  Escude-NN
  L.L.C.

  
	
   

  	
  Escude-NS
  L.L.C.

  
	
   

  	
  Hope
  CPD L.L.C.

  
	
   

  	
  Hope
  FLM L.L.C.

  
	
   

  	
  NP
  FLM L.L.C.

  
	
   

  	
  NP
  MZD L.L.C.

  
	
   

  	
  NP
  VKW L.L.C.

  
	
   

  	
  Premier
  LM L.L.C.

  
	
   

  	
  Premier
  NSN L.L.C.

  
	
   

  	
  Premier
  Pon L.L.C.

  
	
   

  	
  Prestige
  Bay L.L.C.

  
	
   

  	
  TXK
  CPD, L.P. (by its general partner TXK L.L.C.)

  
	
   

  	
  TXK
  FRD, L.P. (by its general partner TXK L.L.C.)

  
	
   

  	
  TXK
  L.L.C.

  
	
   

  	
  Asbury
  Atlanta AC L.L.C.

  
	
   

  	
  Asbury
  Atlanta AU L.L.C.

  
	
   

  	
  Asbury
  Atlanta BM L.L.C.

  
	
   

  	
  Asbury
  Atlanta Chevrolet L.L.C.

  
	
   

  	
  Asbury
  Atlanta Hon L.L.C.

  
	
   

  	
  Asbury
  Atlanta Infiniti L.L.C.

  
	
   

  	
  Asbury
  Atlanta Jaguar L.L.C.

  
	
   

  	
  Asbury
  Atlanta VL L.L.C.

  
	
   

  	
  Asbury
  Automotive Atlanta L.L.C.

  
	
   

  	
  Atlanta
  Real Estate Holdings L.L.C.

  
	
   

  	
  Spectrum
  Insurance Services L.L.C.

  
	
   

  	
  Asbury
  Automotive Fresno L.L.C.

  
	
   

  	
  Asbury
  Fresno Imports L.L.C.

  



 


88

















 


	
   

  	
  AF
  Motors, L.L.C.

  
	
   

  	
  ALM
  Motors, L.L.C.

  
	
   

  	
  ANL,
  L.P. (by its general partner Asbury Jax Management L.L.C.)

  
	
   

  	
  Asbury
  Automotive Central Florida, L.L.C.

  
	
   

  	
  Asbury
  Automotive Deland, L.L.C.

  
	
   

  	
  Asbury
  Automotive Jacksonville GP L.L.C.

  
	
   

  	
  Asbury
  Automotive Jacksonville, L.P. (by its general partner Asbury Automotive
  Jacksonville GP L.L.C.)

  
	
   

  	
  Asbury
  Deland Imports 2, L.L.C.

  
	
   

  	
  Asbury
  Jax Holdings, L.P. (by its general partner Asbury Jax Management L.L.C.)

  
	
   

  	
  Asbury
  Jax Management L.L.C.

  
	
   

  	
  Asbury-Deland
  Imports, L.L.C.

  
	
   

  	
  Avenues
  Motors, Ltd. (by its general partner Asbury Jax Management L.L.C.)

  
	
   

  	
  Bayway
  Financial Services, L.P. (by its general partner Asbury Jax Management
  L.L.C.)

  
	
   

  	
  BFP
  Motors L.L.C.

  
	
   

  	
  C&O
  Properties, Ltd.  (by its general
  partner Asbury Jax Management L.L.C.)

  
	
   

  	
  CFP
  Motors, Ltd. (by its general partner Asbury Jax Management L.L.C.)

  
	
   

  	
  CH
  Motors, Ltd. (by its general partner Asbury Jax Management L.L.C.)

  
	
   

  	
  CHO
  Partnership, Ltd. (by its general partner Asbury Jax Management L.L.C.)

  
	
   

  	
  CK
  Chevrolet L.L.C.

  
	
   

  	
  CK
  Motors LLC

  
	
   

  	
  CN
  Motors, Ltd. (by its general partner Asbury Jax Management L.L.C.)

  
	
   

  	
  Coggin
  Automotive Corp.

  
	
   

  	
  Coggin
  Chevrolet L.L.C.

  
	
   

  	
  Coggin
  Management, L.P. (by its general partner Asbury Jax Management L.L.C.)

  
	
   

  	
  Coggin
  Orlando Properties LLC

  
	
   

  	
  CP-GMC
  Motors, Ltd. (by its general partner Asbury Jax Management L.L.C.)

  
	
   

  	
  CSA
  Imports L.L.C.

  
	
   

  	
  HFP
  Motors L.L.C.

  
	
   

  	
  KP
  Motors L.L.C.

  
	
   

  	
  Asbury
  Automotive Mississippi, L.L.C.

  
	
   

  	
  Asbury
  MS Wimber L.L.C.

  
	
   

  	
  Asbury
  MS Yazoo L.L.C.

  
	
   

  	
  Asbury
  Automotive North Carolina Dealership Holdings L.L.C.

  
	
   

  	
  Asbury
  Automotive North Carolina L.L.C.

  
	
   

  	
  Asbury
  Automotive North Carolina

  



 


89

















 


	
   

  	
  Management
  L.L.C.

  
	
   

  	
  Asbury
  Automotive North Carolina Real Estate Holdings L.L.C.

  
	
   

  	
  Camco
  Finance II L.L.C.

  
	
   

  	
  Camco
  Finance L.L.C.

  
	
   

  	
  Crown
  Acura/Nissan, LLC

  
	
   

  	
  Crown
  Battleground, LLC

  
	
   

  	
  Crown
  CHH L.L.C.

  
	
   

  	
  Crown
  CHO L.L.C.

  
	
   

  	
  Crown
  CHV L.L.C.

  
	
   

  	
  Crown
  Dodge, LLC

  
	
   

  	
  Crown
  FDO L.L.C.

  
	
   

  	
  Crown
  FFO Holdings L.L.C.

  
	
   

  	
  Crown
  FFO L.L.C.

  
	
   

  	
  Crown
  Fordham L.L.C.

  
	
   

  	
  Crown
  GAC L.L.C.

  
	
   

  	
  Crown
  GAU L.L.C.

  
	
   

  	
  Crown
  GBM L.L.C.

  
	
   

  	
  Crown
  GCA L.L.C.

  
	
   

  	
  Crown
  GCH L.L.C.

  
	
   

  	
  Crown
  GDO L.L.C.

  
	
   

  	
  Crown
  GHO L.L.C.

  
	
   

  	
  Crown
  GKI L.L.C.

  
	
   

  	
  Crown
  GMI L.L.C.

  
	
   

  	
  Crown
  GNI L.L.C.

  
	
   

  	
  Crown
  GPG L.L.C.

  
	
   

  	
  Crown
  GVO L.L.C.

  
	
   

  	
  Crown
  Honda, LLC

  
	
   

  	
  Crown
  Honda-Volvo, LLC

  
	
   

  	
  Crown
  Mitsubishi, LLC

  
	
   

  	
  Crown
  Motorcar Company L.L.C.

  
	
   

  	
  Crown
  Raleigh L.L.C.

  
	
   

  	
  Crown
  RIA L.L.C.

  
	
   

  	
  Crown
  RIB L.L.C.

  
	
   

  	
  Crown
  RIS L.L.C.

  
	
   

  	
  Crown
  Royal Pontiac, LLC

  
	
   

  	
  Crown
  RPG L.L.C.

  
	
   

  	
  Crown
  SJC L.L.C.

  
	
   

  	
  Crown
  SNI L.L.C.

  
	
   

  	
  RER
  Properties, LLC

  
	
   

  	
  RWIJ
  Properties, LLC

  
	
   

  	
  Asbury
  Automotive Oregon L.L.C.

  
	
   

  	
  Asbury
  Automotive Oregon Management L.L.C.

  
	
   

  	
  Damerow
  Ford Co.

  
	
   

  	
  Thomason
  Frd L.L.C.

  
	
   

  	
  Thomason
  Auto Credit Northwest, Inc.

  
	
   

  	
  Thomason
  Dam L.L.C.

  
	
   

  	
  Thomason
  Hon L.L.C.

  



 


90

















 


	
   

  	
  Thomason
  Hund L.L.C.

  
	
   

  	
  Thomason
  Maz L.L.C.

  
	
   

  	
  Thomason
  Niss L.L.C.

  
	
   

  	
  Thomason
  on Canyon, L.L.C.

  
	
   

  	
  Thomason
  Outfitters L.L.C.

  
	
   

  	
  Thomason
  Pontiac-GMC L.L.C.

  
	
   

  	
  Thomason
  Sub L.L.C.

  
	
   

  	
  Thomason
  Suzu L.L.C.

  
	
   

  	
  Thomason
  Zuk L.L.C.

  
	
   

  	
  Asbury
  Automotive St. Louis, L.L.C.

  
	
   

  	
  Asbury
  St. Louis Cadillac L.L.C.

  
	
   

  	
  Asbury
  St. Louis Gen L.L.C.

  
	
   

  	
  Asbury
  Automotive Brandon, L.P. (by its general partner Asbury Tampa Management L.L.C.)

  
	
   

  	
  Asbury
  Automotive Tampa GP L.L.C.

  
	
   

  	
  Asbury
  Automotive Tampa, L.P. (by its general partner Asbury Automotive Tampa GP
  L.L.C.)

  
	
   

  	
  Asbury
  Tampa Management L.L.C.

  
	
   

  	
  Dealer
  Profit Systems L.L.C.

  
	
   

  	
  Precision
  Computer Services, Inc.

  
	
   

  	
  Precision
  Enterprises Tampa, Inc.

  
	
   

  	
  Precision
  Infiniti, Inc.

  
	
   

  	
  Precision
  Motorcars, Inc.

  
	
   

  	
  Precision
  Nissan, Inc.

  
	
   

  	
  Tampa
  Hund, L.P. (by its general partner Asbury Tampa Management L.L.C.)

  
	
   

  	
  Tampa
  Kia, L.P. (by its general partner Asbury Tampa Management L.L.C.)

  
	
   

  	
  Tampa
  LM, L.P. (by its general partner Asbury Tampa Management L.L.C.)

  
	
   

  	
  Tampa
  Mit, L.P. (by its general partner Asbury Tampa Management L.L.C.)

  
	
   

  	
  Tampa
  Suzu, L.P. (by its general partner Asbury Tampa Management L.L.C.)

  
	
   

  	
  WMZ
  Brandon Motors, L.P. (by its general partner Asbury Tampa Management L.L.C.)

  
	
   

  	
  WMZ
  Motors, L.P. (by its general partner Asbury Tampa Management L.L.C.)

  
	
   

  	
  Asbury
  Automotive Texas Holdings L.L.C.

  
	
   

  	
  Asbury
  Automotive Texas L.L.C.

  
	
   

  	
  Asbury
  Automotive Texas Real Estate Holdings L.P. (by its general partner Asbury
  Texas Management L.L.C.)

  
	
   

  	
  Asbury
  Texas Management L.L.C.

  
	
   

  	
  McDavid
  Auction, L.P. (by its general partner Asbury Texas Management L.L.C.)

  
	
   

  	
  McDavid
  Austin-Acra, L.P. (by its general partner Asbury Texas Management L.L.C.)

  



 


91

















 


	
   

  	
  McDavid
  Frisco-Hon, L.P. (by its general partner Asbury Texas Management L.L.C.)

  
	
   

  	
  McDavid
  Grande, L.P. (by its general partner Asbury Texas Management L.L.C.)

  
	
   

  	
  McDavid
  Houston-Hon, L.P. (by its general partner Asbury Texas Management L.L.C.)

  
	
   

  	
  McDavid
  Houston-Kia, L.P. (by its general partner Asbury Texas Management L.L.C.)

  
	
   

  	
  McDavid
  Houston-Niss, L.P. (by its general partner Asbury Texas Management L.L.C.)

  
	
   

  	
  McDavid
  Houston-Olds, L.P. (by its general partner Asbury Texas Management L.L.C.)

  
	
   

  	
  McDavid
  Irving-Hon, L.P. (by its general partner Asbury Texas Management L.L.C.)

  
	
   

  	
  McDavid
  Irving-PB&G, L.P. (by its general partner Asbury Texas Management L.L.C.)

  
	
   

  	
  McDavid
  Irving-Zuk, L.P. (by its general partner Asbury Texas Management L.L.C.)

  
	
   

  	
  McDavid
  Outfitters, L.P. (by its general partner Asbury Texas Management L.L.C.)

  
	
   

  	
  McDavid
  Plano-Acra, L.P. (by its general partner Asbury Texas Management L.L.C.)

  
	
   

  	
  Plano
  Lincoln-Mercury, Inc.

  



 


 


	
   

  	
   

  	
  By:

  	
  /s/
  J.G. Smith

  
	
   

  	
   

  	
   

  	
  Name:

  Title:

  	
  J.
  Gordon Smith

  Vice President

  



 


 


	
   

  	
  Asbury
  Automotive Group Holdings, Inc.

  
	
   

  	
  Asbury
  Automotive Group L.L.C.

  



 


 


	
   

  	
   

  	
  By:

  	
  /s/
  J.G. Smith

  
	
   

  	
   

  	
   

  	
  Name:

  Title:

  	
  J.
  Gordon Smith

  Senior Vice President

  



 


 


	
   

  	
  Asbury
  Automotive Financial Services, Inc.

  



 


 


	
   

  	
   

  	
  By:

  	
  /s/
  T. McCollum

  
	
   

  	
   

  	
   

  	
  Name:

  Title:

  	
  Thomas
  G. McCollum

  President

  



 


92

















 


	
   

  	
  Asbury
  Automotive San Diego L.L.C.

  
	
   

  	
  Asbury
  Automotive Southern California L.L.C.

  



 


 


	
   

  	
   

  	
  By:

  	
  /s/
  Robert D. Frank

  
	
   

  	
   

  	
   

  	
  Name:

  Title:

  	
  Robert
  D. Frank

  Vice President

  



 


 


	
   

  	
  Asbury
  Automotive Used Car Centers L.L.C.

  
	
   

  	
  Asbury
  Automotive Used Car Centers Texas

  GP L.L.C.

  
	
   

  	
  Asbury
  Automotive Used Car Centers Texas

  L.P. (by its general partner Asbury Automotive

  Used Car Centers GP L.L.C.)

  



 


 


 


	
   

  	
   

  	
  By:

  	
  /s/
  John L. Kessler

  
	
   

  	
   

  	
   

  	
  Name:

  Title:

  	
  John
  L. Kessler

  Secretary

  



 


 


	
   

  	
  The
  Bank of New York

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  Marie E. Trimboli

  
	
   

  	
   

  	
  Name:

  Title:

  	
  Marie
  E. Trimboli

  Assistant Vice President

  



 


93

















 


EXHIBIT
A1


 


[Face of 144A Note]


 


 


CUSIP: 043436 AC 8

ISIN: US043436AC83

Exchange Note CUSIP: 043436 AD 6

Exchange Note ISIN: US043436AD66


 


8% Senior Subordinated Notes due 2014 


 


	
  No.
  144A-[1]

  	
   

  	
  $

  
	
  ASBURY AUTOMOTIVE GROUP, INC.

  	
   

  	
   

  



 


promises
to pay to
                       ,
or registered assigns, the principal sum of
                  
Dollars on March 15, 2014. 


 


	
  Interest
  Payment Dates:  March 15 and

  September 15 of each year until maturity and the

  Maturity Date

  	
   

  
	
   

  	
   

  
	
  Record
  Dates:  March 1 with respect to March
  15

  Interest Payment Dates, September 1 with respect

  to September 15 Interest Payment Dates and

  March 1, 2014 with respect to interest payable at

  maturity.

  	
   

  
	
   

  	
   

  
	
  Dated:  December 23, 2003

  	
   

  



 


	
   

  	
  ASBURY
  AUTOMOTIVE GROUP, INC.

  
	
   

  	
   

  
	
   

  	
  By:
  

  	
   

  
	
   

  	
   

  	
  Name:

  Title:

  
	
   

  	
   

  
				



 


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


 


	
  Dated:  December 23, 2003

  
	
   

  
	
  THE BANK OF NEW YORK,

  As Trustee

  
	
   

  
	
   

  
	
   

  
	
  By:
  

  	
   

  	
   

  
	
  Authorized Signatory

  



 


A1-1

















 


[Back of Note]

8% Senior Subordinated Notes due 2014


 


[Insert
the Global Note Legend, if applicable pursuant to the provisions of the
Indenture]


 


[Insert
the Private Placement Legend, if applicable pursuant to the provisions of the
Indenture]


 


Capitalized
terms used herein shall have the meanings assigned to them in the Indenture
referred to below unless otherwise indicated.


 


1.             INTEREST. 
Asbury Automotive Group, Inc., a Delaware corporation (the “Company”),
promises to pay interest on the principal amount of this Note at 8% per annum
from December 23, 2003 until maturity and shall pay the Special Interest
payable pursuant to Section 2 of the Registration Rights Agreement referred to
below. The Company will pay interest and Special Interest semi-annually in
arrears on March 15 and September 15 of each year and on maturity, or if any
such day is not a Business Day, on the next succeeding Business Day (each an “Interest
Payment Date”). 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 date
of issuance; provided that if there is no existing Default in the payment of
interest, and if this Note is authenticated between a record date referred to
on the face hereof and the next succeeding Interest Payment Date, interest
shall accrue from such next succeeding Interest Payment Date; provided,
further, that the first Interest Payment Date shall be March 15, 2004. The
Company shall pay interest (including post-petition interest in any proceeding
under any Bankruptcy Law) on overdue principal and premium, if any, from time
to time on demand at a rate that is 1% per annum in excess of the rate then in
effect; it shall pay interest (including post-petition interest in any
proceeding under any Bankruptcy Law) on overdue installments of interest and
Special Interest (without regard to any applicable grace periods) from time to
time on demand at the same rate to the extent lawful. Interest will be computed
on the basis of a 360-day year of twelve 30-day months.


 


2.             METHOD OF PAYMENT. The Company will pay
interest on the Notes (except defaulted interest) and Special Interest to the
Persons who are registered Holders of Notes at the close of business on (i) the
1st of March next preceding each March 15 Interest Payment Date; (ii) the 1st
of September next preceding each September 15 Interest Payment Date; and (iii)
March 1, 2014 with respect to interest payable at maturity even if such Notes
are canceled after such record date and on or before such Interest Payment
Date, except as provided in Section 2.12 of the Indenture with respect to
defaulted interest. The Notes will be payable as to principal, premium and
Special Interest, if any, and interest 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 and premium or Special Interest, if
any, may be made by check mailed to the Holders at their addresses set forth in
the register of Holders, and provided that payment by wire transfer of
immediately available funds will be required with respect to principal of,
interest on, premium and Special Interest on, all Global Notes and all other
Notes the Holders of which shall have provided wire transfer instructions to
the Company or the Paying Agent. Such payment shall be in such coin or currency
of the United States of America as at the time of payment is legal tender for
payment of public and private debts.


 


3.             PAYING AGENT AND REGISTRAR. Initially, The
Bank of New York, the Trustee under the Indenture, will act as Paying Agent and
Registrar. The Company may


 


A1-2

















 


change any Paying Agent or Registrar without
notice to any Holder. The Company or any of its Subsidiaries may act in any
such capacity.


 


4.             INDENTURE. The Company issued the Notes under
an Indenture dated as of December 23, 2003 (“Indenture”) between the
Company, the Guarantors thereto 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, as amended (15 U.S. Code §§ 77aaa-77bbbb).
The Notes are subject to all such terms, and Holders are referred to the
Indenture and such Act for a statement of such terms. To the extent any
provision of this Note conflicts with the express provisions of the Indenture,
the provisions of the Indenture shall govern and be controlling. The Company
shall be entitled, subject to its compliance with Section 4.09 of the
Indenture, to issue additional Notes pursuant to Section 2.14 of the Indenture.


 


5.             OPTIONAL REDEMPTION.


 


(a)           Except as set forth in subparagraphs (b) and (c) of this Paragraph 5,
the Company shall not have the option to redeem the Notes prior to March 15,
2009. Thereafter, the Company shall have the option to redeem all or part of
the Notes upon not less than 30 nor more than 60 days’ notice, at the
redemption prices (expressed as percentages of principal amount) set forth
below plus accrued and unpaid interest and Special Interest thereon, if any, to
the applicable redemption date, if redeemed during the twelve-month period
beginning on March 15 of the years indicated below:


 


	
  Year

  	
   

  	
  Percentage

  	
   

  
	
  2009

  	
   

  	
  104.000

  	
  %

  
	
  2010

  	
   

  	
  102.667

  	
  %

  
	
  2011

  	
   

  	
  101.333

  	
  %

  
	
  2012 and thereafter

  	
   

  	
  100.000

  	
  %

  



 


(b)           Notwithstanding the provisions of subparagraph (a) of this Paragraph 5,
at any time, after the date hereof, on or prior to March 15, 2007, the Company
may on any one or more occasions redeem up to 35% of the aggregate principal
amount of the Notes (which includes Additional Notes) issued under the Indenture
at a redemption price equal to 108% of the aggregate principal amount thereof,
plus accrued and unpaid interest and Special Interest thereon, if any, to the
redemption date with the net cash proceeds of one or more Equity Offerings
provided that:


 


(i)            at
least 65% of the aggregate principal amount of the Notes originally issued
remains outstanding immediately after the occurrence of such redemption
(excluding Notes held by the Company or any of its Subsidiaries); and


 


(ii)           the
redemption occurs within 45 days of the date of the closing of such Equity
Offering.


 


(c)           At any time prior to March 15, 2009, all or part of the Notes may also
be redeemed at the option of the Company, upon not less than 30 nor more than
60 days prior notice mailed by first-class mail to each Holder’s registered
address, at a redemption price equal to 100% of the principal amount thereof
plus the Applicable Premium as of, and accrued and unpaid interest and Special
Interest thereon, if any, to the Redemption Date.


 


A1-3

















 


6.             MANDATORY REDEMPTION.


 


Except
as set forth in paragraph 7 below, the Company shall not be required to make
mandatory redemption payments with respect to the Notes.


 


7.             REPURCHASE AT OPTION OF HOLDER.


 


(a)           If there is a Change of Control, the Company shall be required to make
an offer (a “Change of Control Offer”) to repurchase all or any part
(equal to $1,000 or an integral multiple thereof) of each Holder’s Notes at a
purchase price equal to 101% of the aggregate principal amount thereof plus
accrued and unpaid interest and Special Interest thereon, if any, to 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 setting
forth the procedures governing the Change of Control Offer as required by the
Indenture.


 


(b)           If the Company or a Restricted Subsidiary consummates any Asset Sales,
within five days of each date on which the aggregate amount of Excess Proceeds
exceeds $10.0 million, the Company shall commence an offer to all Holders of
Notes (as “Asset Sale Offer”) pursuant to Section 3.09 of the Indenture
to purchase the maximum principal amount of Notes (including any Additional
Notes) that may be purchased out of the Excess Proceeds at an offer price in
cash in an amount equal to 100% of the principal amount thereof plus accrued
and unpaid interest thereon, if any, to the date fixed for the closing of such
offer, in accordance with the procedures set forth in the Indenture. To the
extent that the aggregate amount of Notes (including any Additional Notes)
tendered pursuant to an Asset Sale Offer is less than the Excess Proceeds, the
Company (or such Subsidiary) may use such deficiency for general corporate
purposes. If the aggregate principal amount of Notes surrendered by Holders
thereof exceeds the amount of Excess Proceeds, the Trustee shall select the
Notes to be purchased on a pro rata basis. Holders of Notes that are the
subject of an offer to purchase will receive an Asset Sale Offer from the
Company prior to any related purchase date and may elect to have such Notes
purchased by completing the form entitled “Option of Holder to Elect
Purchase” on the reverse of the Notes.


 


8.             NOTICE OF REDEMPTION. Notice of redemption
will be mailed at least 30 days but not more than 60 days before the redemption
date (except that redemption notices may be mailed more than 60 days prior to a
redemption date if the notice is issued in connection with Article 8 or Article
12 of the Indenture)to each Holder whose Notes are to be redeemed at its
registered address. Notes in denominations larger than $1,000 may be redeemed
in part but only in whole multiples of $1,000, unless all of the Notes held by
a Holder are to be redeemed. On and after the redemption date interest ceases
to accrue on Notes or portions thereof called for redemption.


 


9.             DENOMINATIONS, TRANSFER, EXCHANGE. The Notes
are in registered form without coupons in denominations of $1,000 and integral
multiples of $1,000. The transfer of Notes may be registered and Notes may be
exchanged as provided in the Indenture. The Registrar and the Trustee may
require a Holder, among other things, to furnish appropriate endorsements and
transfer documents and the Company may require a Holder to pay any taxes and
fees required by law or permitted by the Indenture. The Company need not
exchange or register the transfer of any Note or portion of a Note selected for
redemption, except for the unredeemed portion of any Note being redeemed in part.
Also, the Company need not exchange or register the transfer of any Notes for a
period of 15 days before a selection of Notes


 


A1-4

















 


to be redeemed or during the period between a
record date and the corresponding Interest Payment Date.


 


10.           PERSONS DEEMED OWNERS. The registered Holder of a Note may be treated
as its owner for all purposes.


 


11.           AMENDMENT, SUPPLEMENT AND WAIVER. Subject to certain exceptions, the
Indenture, the Subsidiary Guarantees or the Notes may be amended or
supplemented with the consent of the Holders of at least a majority in
principal amount of the then outstanding Notes and Additional Notes, if any,
voting as a single class, and any existing default or compliance with any
provision of the Indenture, the Subsidiary Guarantees or the Notes may be
waived with the consent of the Holders of a majority in principal amount of the
then outstanding Notes and Additional Notes, if any, voting as a single class.
Without the consent of any Holder of a Note, the Indenture, the Subsidiary
Guarantees or the Notes may be amended or supplemented to cure any ambiguity,
defect or inconsistency or to make a modification of a formal, minor or
technical nature or to correct a manifest error, to provide for uncertificated
Notes in addition to or in place of certificated Notes, to comply with the
covenant relating to mergers, consolidations and sales of assets, to provide
for the assumption of the Company’s or Guarantor’s obligations to Holders of
the Notes in case of a merger or consolidation or sale of all or substantially
all of the Company’s assets, to add Guarantees with respect to the Notes or to
secure the Notes, to add to the covenants of the Company or any Guarantor for
the benefit of the Holders of the Notes or surrender any right or power
conferred upon the Company or any Guarantor, to make any change that would
provide any additional rights or benefits to the Holders of the Notes or that
does not adversely affect the legal rights under the Indenture of any such
Holder, to comply with the requirements of the SEC in order to effect or
maintain the qualification of the Indenture under the Trust Indenture Act, to
evidence and provide for the acceptance and appointment under the Indenture of
a successor trustee pursuant to the requirements thereof, to provide for the
issuance of exchange or private exchange notes or to provide for the issuance
of Additional Notes in accordance with the limitations set forth in the
Indenture.


 


12.           DEFAULTS AND REMEDIES. Events of Default include: (i) default for 30
days in the payment when due of interest on, or Special Interest, if any, with
respect to, the Notes, whether or not prohibited by Article 10 of the
Indenture; (ii) default in payment when due of principal of, or premium, if
any, on the Notes when the same becomes due and payable at maturity, upon
redemption (including in connection with an offer to purchase) or otherwise,
whether or not prohibited by Article 10 of the Indenture; (iii) failure by the
Company to comply with Section 5.01 of the Indenture; (iv) failure by the
Company or any of its Restricted Subsidiaries to comply with Sections 4.07,
4.09, 4.10, 4.15 or 4.19 of the Indenture for a period of 30 days after notice
to the Company by the Trustee or the Holders of at least 25% in aggregate
principal amount of the Notes (including Additional Notes, if any) then
outstanding voting as a single class; (v) failure by the Company or any of its
Restricted Subsidiaries for 60 days after notice to the Company by the Trustee
or the Holders of at least 25% in principal amount of the Notes (including
Additional Notes, if any) then outstanding voting as a single class to observe
or perform any other covenant or other agreement in the Indenture; (vi) default
under certain other agreements relating to Indebtedness of the Company or any
of its Restricted Subsidiaries, which default is caused by a failure to pay
principal at its stated final maturity (after giving effect to any applicable
grace period provided in such Indebtedness) (a “Payment Default”) or
results in the acceleration of such Indebtedness prior to its express maturity
and, in each case, the principal


 


A1-5

















 


amount of any such Indebtedness, together
with the principal amount of any other such Indebtedness under which there has
been a Payment Default or the maturity of which has been so accelerated,
aggregates $15.0 million or more; (vii) certain final judgments for the payment
of money that remain not paid, discharged or stayed for a period of 60 days,
provided that the aggregate of all such not paid, discharged or stayed
judgments exceeds $15.0 million; (viii) certain events of bankruptcy or
insolvency with respect to the Company or any of its Restricted Subsidiaries
that are, alone or in combination, Significant Subsidiaries as specified in
clauses (i) and (j) of Section 6.01 of the Indenture; and (ix) except as
permitted by the Indenture, any Subsidiary Guarantee shall be held in any
judicial proceeding to be unenforceable or invalid or shall cease for any
reason to be in full force and effect or any Guarantor or any Person acting on
its behalf shall deny or disaffirm its obligations under such Guarantor’s
Subsidiary Guarantee. If any Event of Default (other than an Event of Default
specified in clause (i) or (j) of Section 6.01 of the Indenture with respect to
the Company or any of its Restricted Subsidiaries that are, alone or in
combination, Significant Subsidiaries) occurs and is continuing, the Trustee or
the Holders of at least 25% in principal amount of the then outstanding Notes
may declare all the Notes to be due and payable immediately. Upon any such
declaration the Notes shall become due and payable immediately. Notwithstanding
the foregoing, in the case of an Event of Default arising from certain events
of bankruptcy or insolvency as specified in clauses (i) and (j) of Section 6.01
of the Indenture with respect to the Company or any of its Restricted
Subsidiaries that are, alone or in combination, Significant Subsidiaries, all
outstanding Notes will become due and payable immediately without further
action or notice. Holders of a majority in principal amount of the then
outstanding Notes may direct the time, method and place of conducting any
proceeding for exercising any remedy available to the Trustee or exercising any
trust or power conferred on it. The Trustee may withhold from Holders of the
Notes notice of any continuing Default or Event of Default (except a Default or
Event of Default relating to the payment of principal of, premium, if any, or
interest on any Note) if and so long as a committee of its Responsible Officers
in good faith determines that withholding notice is in the interests of the
Holders of the Notes. The Holders of a majority in aggregate principal amount
of the then outstanding Notes by notice to the Trustee may on behalf of the
Holders of all of the Notes waive any existing Default and its consequences
under the Indenture except a continuing Default in the payment of principal of,
Special Interest, if any, or interest on, the Notes (other than non-payment of
principal of or interest on or Special Interest, if any, on the Notes that
become due solely because of the acceleration of the Notes) (provided that the
Holders of a majority in aggregate principal amount of the then outstanding
Notes may rescind an acceleration and its consequences, including any related
payment default that resulted from such acceleration). The Company is required
to deliver to the Trustee annually a statement regarding compliance with the
Indenture, and the Company is required upon becoming aware of any Default or
Event of Default, to deliver to the Trustee a statement specifying such Default
or Event of Default.


 


13.           TRUSTEE DEALINGS WITH COMPANY. The Trustee, in its individual or any
other capacity, may make loans to, accept deposits from, and perform services
for the Company or its Affiliates, and may otherwise deal with the Company or
its Affiliates, as if it were not the Trustee.


 


14.           NO RECOURSE AGAINST OTHERS. A director, officer, employee, incorporator
or stockholder, of the Company, as such, shall not have any liability for any
obligations of the Company under the Notes or the Indenture or for any claim
based on, in respect of, or by reason of, such obligations or their creation.
Each Holder by accepting a Note waives


 


A1-6

















 


and releases all such liability. The waiver
and release are part of the consideration for the issuance of the Notes.


 


15.           AUTHENTICATION. This Note shall not be valid until authenticated by the
manual signature of the Trustee or an authenticating agent.


 


16.           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 right of survivorship
and not as tenants in common), CUST (= Custodian), and U/G/M/A (= Uniform Gifts
to Minors Act).


 


17.           ADDITIONAL RIGHTS OF HOLDERS OF RESTRICTED GLOBAL NOTES AND RESTRICTED
DEFINITIVE NOTES. In addition to the rights provided to Holders of Notes under
the Indenture, Holders of Restricted Global Notes and Restricted Definitive
Notes shall have all the rights set forth in the Exchange and Registration
Rights Agreement dated as of December 23, 2003, between the Company and the
parties named on the signature pages thereof or, in the case of Additional
Notes, Holders of Restricted Global Notes and Restricted Definitive Notes shall
have the rights set forth in one or more registration rights agreements, if
any, among the Company and the other parties thereto relating to rights given
by the Company to the purchasers of Additional Notes (collectively, the “Registration
Rights Agreement”).


 


18.           CUSIP NUMBERS. Pursuant to a recommendation promulgated by the
Committee on Uniform Security Identification Procedures, the Company has caused
CUSIP numbers to be printed on the Notes and the Trustee may use CUSIP 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.


 


The
Company will furnish to any Holder upon written request and without charge a
copy of the Indenture and/or the Registration Rights Agreement. Requests may be
made to:


 


Asbury
Automotive Group, Inc.

3 Landmark Square

Suite 500

Stamford, Connecticut 06901

Attention: Chief Financial Officer


 


A1-7

















 


ASSIGNMENT FORM


 


To
assign this Note, fill in the form below:


 


	
  (I)
  or (we) assign and transfer this Note to:

  	
   

  
	
   

  	
  (Insert assignee’s legal name)

  
	
   

  
	
   

  
	
  (Insert assignee’s Social Security or Tax Identification Number)

  
	
   

  
	
   

  
	
   

  
	
   

  
	
  (Print or type assignee’s name, address and zip code)

  



 


and
irrevocably appoint
                                                                                                                                                             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 face of this Note)

  
	
   

  	
   

  
	
  Signature
  Guarantee*:

  	
   

  	
   

  
					



 


 


 












*        Participant
in a recognized Signature Guarantee Medallion Program (or other signature
guarantor acceptable to the Trustee).


 


A1-8

















 


OPTION OF HOLDER TO ELECT PURCHASE


 


If
you want to elect to have this Note purchased by the Company pursuant to
Section 4.10 or 4.15 of the Indenture check the appropriate box below.


 


	
   

  	
  o Section 4.10

  	
   

  	
   

  	
  o Section 4.15

  



 


If
you want to elect to have only part of the Note purchased by the Company
pursuant to Section 4.10 or Section 4.15 of the Indenture, state the amount you
elect to have purchased:


 


$                                      


	
  Date:
  

  	
   

  	
   

  



 


	
   

  	
  Your
  Signature: 

  	
   

  
	
   

  	
  (Sign
  exactly as your name appears on the face of this Note)

  
	
   

  	
  Tax
  Identification No.:

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
  Signature
  Guarantee*: 

  	
   

  	
   

  
						



 












*       Participant in a recognized
Signature Guarantee Medallion Program (or other signature guarantor acceptable
to the Trustee).


 


A1-9

















 


SCHEDULE OF EXCHANGES OF INTERESTS IN THE GLOBAL NOTE


 


The
following exchanges of a part of this Global Note for an interest in another
Global Note or for a Definitive Note, or exchanges of a part of another Global
Note or Definitive Note for an interest 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 Note

  Custodian

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  



 


A1-10

















 


EXHIBIT
A2


 


[Face of Regulation S Global Note]


 


 


CUSIP: U04348 AB 1

ISIN: USU04348AB11

Exchange Note CUSIP: 043436 AD 6

Exchange Note ISIN: US04343AD66


 


8% Senior Subordinated Notes due 2014


 


	
  No.
  [ST][SP]–[1]

  	
   

  	
  $

  	
   

  
	
  ASBURY AUTOMOTIVE GROUP, INC.

  	
   

  	
   

  



 


promises
to pay to
                    
, or registered assigns, the principal sum of
                   
Dollars on March 15, 2014. 


 


	
  Interest
  Payment Dates:  March 15, and
  September

  15 of each year and the Maturity Date.

  	
   

  
	
   

  	
   

  
	
  Record
  Dates:  March 1 with respect to March
  15

  Interest Payment Dates, September 1 with respect to

  September 15 Interest Payment Dates and March 1,

  2014 with respect to interest payable at maturity.

  	
   

  
	
   

  	
   

  
	
  Dated:  December 23, 2003

  	
   

  



 


	
   

  	
  ASBURY
  AUTOMOTIVE GROUP, INC.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:
  

  	
   

  	
   

  
	
   

  	
   

  	
  Name:

  Title:

  



 


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


 


	
  Dated:  December 23, 2003

  
	
   

  
	
  THE BANK OF NEW YORK,

  as Trustee

  
	
   

  
	
   

  
	
  By:
  

  	
   

  	
   

  
	
  Authorized Signatory

  	
   

  



 


A2-1

















 


Back of Regulation S Temporary Global Note

8% Senior Subordinated Notes due 2014


 


THE
RIGHTS ATTACHING TO THIS TEMPORARY REGULATION S GLOBAL NOTE, AND THE CONDITIONS
AND PROCEDURES GOVERNING ITS EXCHANGE FOR CERTIFICATED NOTES, ARE AS SPECIFIED
IN THE INDENTURE (AS DEFINED HEREIN). NEITHER THE HOLDER NOR THE BENEFICIAL
OWNERS OF THIS REGULATION S TEMPORARY GLOBAL NOTE SHALL BE ENTITLED TO RECEIVE
PAYMENT OF INTEREST HEREON.


 


UNLESS
AND UNTIL IT IS EXCHANGED IN WHOLE OR IN PART FOR NOTES IN DEFINITIVE FORM,
THIS NOTE MAY NOT BE TRANSFERRED EXCEPT AS A WHOLE BY THE DEPOSITARY TO A
NOMINEE OF THE DEPOSITARY OR BY A NOMINEE OF THE DEPOSITARY TO THE DEPOSITARY
OR ANOTHER NOMINEE OF THE DEPOSITARY OR BY THE DEPOSITARY OR ANY SUCH NOMINEE
TO A SUCCESSOR DEPOSITARY OR A NOMINEE OF SUCH SUCCESSOR DEPOSITARY. UNLESS
THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY
TRUST COMPANY (55 WATER STREET, NEW YORK, NEW YORK) (“DTC”), TO ASBURY
AUTOMOTIVE GROUP, INC. 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 MAY BE REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC
(AND ANY PAYMENT IS MADE TO CEDE & CO. OR SUCH OTHER ENTITY AS MAY BE
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.


 


THE
NOTES EVIDENCED HEREBY HAVE NOT BEEN REGISTERED UNDER THE UNITED STATES
SECURITIES ACT OF 1933 (THE “SECURITIES ACT”) AND MAY NOT BE OFFERED,
SOLD, PLEDGED OR OTHERWISE TRANSFERRED EXCEPT (A) (1) TO A PERSON WHO THE
SELLER REASONABLY BELIEVES IS A QUALIFIED INSTITUTIONAL BUYER WITHIN THE
MEANING OF RULE 144A UNDER THE SECURITIES ACT PURCHASING FOR ITS OWN ACCOUNT OR
FOR THE ACCOUNT OF A QUALIFIED INSTITUTIONAL BUYER IN A TRANSACTION MEETING THE
REQUIREMENTS OF RULE 144A, (2) IN AN OFFSHORE TRANSACTION COMPLYING WITH RULE
903 OR RULE 904 OF REGULATION S UNDER THE SECURITIES ACT, (3) PURSUANT TO AN
EXEMPTION FROM REGISTRATION UNDER THE SECURITIES ACT PROVIDED BY RULE 144
THEREUNDER (IF AVAILABLE), (4) TO AN INSTITUTIONAL ACCREDITED INVESTOR IN A TRANSACTION
EXEMPT FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT OR (5) PURSUANT
TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT AND (B) IN
ACCORDANCE WITH ALL APPLICABLE SECURITIES LAWS OF THE STATES OF THE UNITED
STATES AND OTHER JURISDICTIONS.


 


Capitalized
terms used herein shall have the meanings assigned to them in the Indenture
referred to below unless otherwise indicated.


 


A2-2

















 


1.             INTEREST. 
Asbury Automotive Group, Inc., a Delaware corporation (the “Company”),
promises to pay interest on the principal amount of this Note at 8% per annum
from December 23, 2003 until maturity and shall pay the Special Interest
payable pursuant to Section 2 of the Registration Rights Agreement referred to
below. The Company will pay interest and Special Interest semi-annually in
arrears on March 15 and September 15 of each year and on maturity, or if any
such day is not a Business Day, on the next succeeding Business Day (each an “Interest
Payment Date”). 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 date
of issuance; provided that if there is no existing Default in the payment of
interest, and if this Note is authenticated between a record date referred to
on the face hereof and the next succeeding Interest Payment Date, interest
shall accrue from such next succeeding Interest Payment Date; provided,
further, that the first Interest Payment Date shall be March 15, 2004. The
Company shall pay interest (including post-petition interest in any proceeding
under any Bankruptcy Law) on overdue principal and premium, if any, from time
to time on demand at a rate that is 1% per annum in excess of the rate then in
effect; it shall pay interest (including post-petition interest in any
proceeding under any Bankruptcy Law) on overdue installments of interest and
Special Interest (without regard to any applicable grace periods) from time to
time on demand at the same rate to the extent lawful. Interest will be computed
on the basis of a 360-day year of twelve 30-day months.


 


Until
this Temporary Regulation S Global Note is exchanged for one or more Regulation
S Permanent Global Notes, the Holder hereof shall not be entitled to receive
payments of interest hereon; until so exchanged in full, this Temporary
Regulation S Global Note shall in all other respects be entitled to the same
benefits as other Senior Subordinated Notes under the Indenture.


 


2.             METHOD OF PAYMENT. The Company will pay
interest on the Notes (except defaulted interest) and Special Interest to the
Persons who are registered Holders of Notes at the close of business on (i) the
1st of March next preceding each March 15 Interest Payment Date; (ii)  the 1st of September next preceding each
September 15 Interest Payment Date; and (iii) March 1, 2014 with respect to
interest payable at maturity even if such Notes are canceled after such record
date and on or before such Interest Payment Date, except as provided in Section
2.12 of the Indenture with respect to defaulted interest. The Notes will be
payable as to principal, premium and Special Interest, if any, and interest 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 at their addresses set forth in the
register of Holders, and provided that payment by wire transfer of immediately
available funds will be required with respect to principal of, interest, if
any,  on, premium and Special Interest
on, all Global Notes and all other Notes the Holders of which shall have
provided wire transfer instructions to the Company or the Paying Agent. Such
payment shall be in such coin or currency of the United States of America as at
the time of payment is legal tender for payment of public and private debts.


 


3.             PAYING AGENT AND REGISTRAR. Initially, The
Bank of New York, the Trustee under the Indenture, will act as Paying Agent and
Registrar. The Company may change any Paying Agent or Registrar without notice
to any Holder. The Company or any of its Subsidiaries may act in any such
capacity.


 


4.             INDENTURE. The Company issued the Notes under
an Indenture dated as of December 23, 2003 (“Indenture”), between the
Company, the Guarantors and the Trustee.


 


A2-3

















 


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, as amended (15 U.S. Code §§ 77aaa-77bbbb). The Notes are
subject to all such terms, and Holders are referred to the Indenture and such
Act for a statement of such terms. To the extent any provision of this Note
conflicts with the express provisions of the Indenture, the provisions of the
Indenture shall govern and be controlling. The Company shall be entitled,
subject to its compliance with Section 4.09 of the Indenture, to issue
additional Notes pursuant to Section 2.14 of the Indenture.


 


5.             OPTIONAL REDEMPTION.


 


(a)           Except as set forth in subparagraphs (b) and (c) of this Paragraph 5,
the Company shall not have the option to redeem the Notes prior to March 15,
2009. Thereafter, the Company shall have the option to redeem all or part of
the Notes upon not less than 30 nor more than 60 days’ notice, at the
redemption prices (expressed as percentages of principal amount) set forth
below plus accrued and unpaid interest and Special Interest thereon, if any, to
the applicable redemption date, if redeemed during the twelve-month period
beginning on March 15 of the years indicated below:


 


	
  Year

  	
   

  	
  Percentage

  	
   

  
	
  2009

  	
   

  	
  104.000

  	
  %

  
	
  2010

  	
   

  	
  102.667

  	
  %

  
	
  2011

  	
   

  	
  101.333

  	
  %

  
	
  2012 and thereafter

  	
   

  	
  100.000

  	
  %

  



 


(b)           Notwithstanding the provisions of subparagraph (a) of this Paragraph 5,
at any time, after the hereof, on or prior to March 15, 2007, the Company may
on any more or more occasions redeem up to 35% of the aggregate principal
amount of the Notes (which includes Additional Notes) issued under the
Indenture at a redemption price equal to 108% of the aggregate principal amount
thereof, plus accrued and unpaid interest and Special Interest thereon, if any,
to the redemption date with the net cash proceeds of one or more Equity
Offerings provided that:


 


(i)            at
least 65% of the aggregate principal amount of the Notes originally issued
remains outstanding immediately after the occurrence of such redemption
(excluding Notes held by the Company or any of its Subsidiaries); and


 


(ii)           the
redemption occurs within 45 days of the date of the closing of such Equity
Offering.


 


(c)           At any time prior to March 15, 2009, all or part of the Notes may also
be redeemed at the option of the Company, upon not less than 30 nor more than
60 days prior notice mailed by first-class mail to each Holder’s registered
address, at a redemption price equal to 100% of the principal amount thereof
plus the Applicable Premium as of, and accrued and unpaid interest and Special
Interest thereon, if any, to the Redemption Date.


 


A2-4

















 


6.             MANDATORY REDEMPTION.


 


Except
as set forth in paragraph 7 below, the Company shall not be required to make
mandatory redemption payments with respect to the Notes.


 


7.             REPURCHASE AT OPTION OF HOLDER.


 


(a)           If there is a Change of Control, the Company shall be required to make
an offer (a “Change of Control Offer”) to repurchase all or any part
(equal to $1,000 or an integral multiple thereof) of each Holder’s Notes at a
purchase price equal to 101% of the aggregate principal amount thereof plus
accrued and unpaid interest and Special Interest thereon, if any, to 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 setting
forth the procedures governing the Change of Control Offer as required by the
Indenture.


 


(b)           If the Company or a Restricted Subsidiary consummates any Asset Sales,
within five days of each date on which the aggregate amount of Excess Proceeds
exceeds $10.0 million, the Company shall commence an offer to all Holders of
Notes (as “Asset Sale Offer”) pursuant to Section 3.09 of the Indenture
to purchase the maximum principal amount of Notes (including any Additional
Notes) that may be purchased out of the Excess Proceeds at an offer price in
cash in an amount equal to 100% of the principal amount thereof plus accrued
and unpaid interest thereon, if any, to the date fixed for the closing of such
offer, in accordance with the procedures set forth in the Indenture. To the extent
that the aggregate amount of Notes (including any Additional Notes) tendered
pursuant to an Asset Sale Offer is less than the Excess Proceeds, the Company
(or such Subsidiary) may use such deficiency for general corporate purposes. If
the aggregate principal amount of Notes surrendered by Holders thereof exceeds
the amount of Excess Proceeds, the Trustee shall select the Notes to be
purchased on a pro rata basis. Holders of Notes that are the subject of an
offer to purchase will receive an Asset Sale Offer from the Company prior to
any related purchase date and may elect to have such Notes purchased by
completing the form entitled “Option of Holder to Elect Purchase” on the
reverse of the Notes.


 


8.             NOTICE OF REDEMPTION. Notice of redemption
will be mailed at least 30 days but not more than 60 days before the redemption
date (except that redemption notices may be mailed more than 60 days prior to a
redemption date if the notice is issued in connection with Article 8 or Article
12 of the Indenture) to each Holder whose Notes are to be redeemed at its
registered address. Notes in denominations larger than $1,000 may be redeemed
in part but only in whole multiples of $1,000, unless all of the Notes held by
a Holder are to be redeemed. On and after the redemption date interest ceases
to accrue on Notes or portions thereof called for redemption.


 


9.             DENOMINATIONS, TRANSFER, EXCHANGE. The Notes
are in registered form without coupons in denominations of $1,000 and integral
multiples of $1,000. The transfer of Notes may be registered and Notes may be
exchanged as provided in the Indenture. The Registrar and the Trustee may
require a Holder, among other things, to furnish appropriate endorsements and
transfer documents and the Company may require a Holder to pay any taxes and
fees required by law or permitted by the Indenture. The Company need not
exchange or register the transfer of any Note or portion of a Note selected for
redemption, except for the unredeemed portion of any Note being redeemed in
part. Also, the Company need not exchange or register the transfer of any Notes
for a period of 15 days before a selection of Notes


 


A2-5

















 


to be redeemed or during the period between a
record date and the corresponding Interest Payment Date.


 


This
Temporary Regulation S Global Note is exchangeable in whole or in part for one
or more Global Notes only (i) on or after the termination of the 40-day
distribution compliance period (as defined in Regulation S under the Securities
Act) and (ii) upon presentation of certificates (accompanied by an Opinion of
Counsel, if applicable) required by Article 2 of the Indenture. Upon exchange
of this Temporary Regulation S Global Note for one or more Global Notes, the
Trustee shall cancel this Temporary Regulation S Global Note.


 


10.           PERSONS DEEMED OWNERS. The registered Holder of a Note may be treated
as its owner for all purposes.


 


11.           AMENDMENT, SUPPLEMENT AND WAIVER. Subject to certain exceptions, the
Indenture, the Subsidiary Guarantees or the Notes may be amended or
supplemented with the consent of the Holders of at least a majority in
principal amount of the then outstanding Notes and Additional Notes, if any,
voting as a single class, and any existing default or compliance with any provision
of the Indenture, the Subsidiary Guarantees or the Notes may be waived with the
consent of the Holders of a majority in principal amount of the then
outstanding Notes and Additional Notes, if any, voting as a single class.
Without the consent of any Holder of a Note, the Indenture, the Subsidiary
Guarantees or the Notes may be amended or supplemented to cure any ambiguity,
defect or inconsistency or to make a modification of a formal, minor or
technical nature or to correct a manifest error, to provide for uncertificated
Notes in addition to or in place of certificated Notes, to comply with the
covenant relating to mergers, consolidations and sales of assets, to provide
for the assumption of the Company’s or Guarantor’s obligations to Holders of
the Notes in case of a merger or consolidation or sale of all or substantially
all of the Company’s assets, to add Guarantees with respect to the Notes or to
secure the Notes, to add to the covenants of the Company or any Guarantor for
the benefit of the Holders of the Notes or surrender any right or power
conferred upon the Company or any Guarantor, to make any change that would
provide any additional rights or benefits to the Holders of the Notes or that
does not adversely affect the legal rights under the Indenture of any such
Holder, to comply with the requirements of the SEC in order to effect or
maintain the qualification of the Indenture under the Trust Indenture Act, to
evidence and provide for the acceptance and appointment under the Indenture of
a successor trustee pursuant to the requirements thereof, or to provide for the
issuance of exchange or private exchange notes.


 


12.           DEFAULTS AND REMEDIES. Events of Default include: (i) default for 30
days in the payment when due of interest on, or Special Interest, if any, with
respect to, the Notes, whether or not prohibited by Article 10 of the
Indenture; (ii) default in payment when due of principal of, or premium, if
any, on the Notes when the same becomes due and payable at maturity, upon
redemption (including in connection with an offer to purchase) or otherwise,
whether or not prohibited by Article 10 of the Indenture; (iii) failure by the
Company to comply with Section 5.01 of the Indenture; (iv) failure by the
Company or any of its Restricted Subsidiaries to comply with Section 4.07,
4.09, 4.10, 4.15 or 4.19 of the Indenture for a period of 30 days after notice
to the Company by the Trustee or the Holders of at least 25% in aggregate
principal amount of the Notes (including Additional Notes, if any) then outstanding
voting as a single class; (v) failure by the Company or any of its Restricted
Subsidiaries for 60 days after notice to the Company by the Trustee or the
Holders of at least 25% in principal amount of the Notes (including Additional
Notes, if any) then outstanding voting as a single class to observe or


 


A2-6

















 


perform any other covenant or other agreement
in the Indenture; (vi) default under certain other agreements relating to
Indebtedness of the Company or any of its Restricted Subsidiaries, which
default is caused by a failure to pay principal at its stated final maturity
(after giving effect to any applicable grace period provided in such
Indebtedness) (a “Payment Default”) or results in the acceleration of
such Indebtedness prior to its express maturity and, in each case, the
principal amount of any such Indebtedness, together with the principal amount
of any other such Indebtedness under which there has been a Payment Default or
the maturity of which has been so accelerated, aggregates $15.0 million or
more; (vii) certain final judgments for the payment of money that remain not
paid, discharged or stayed for a period of 60 days, provided that the aggregate
of all such not paid, discharged or stayed judgments exceeds $15.0 million;
(viii) certain events of bankruptcy or insolvency with respect to the Company
or any of its Restricted Subsidiaries that are, alone or in combination,
Significant Subsidiaries as specified in clauses (i) and (j) of Section 6.01 of
the Indenture; and (ix) except as permitted by the Indenture, any Subsidiary
Guarantee shall be held in any judicial proceeding to be unenforceable or
invalid or shall cease for any reason to be in full force and effect or any
Guarantor or any Person acting on its behalf shall deny or disaffirm its
obligations under such Guarantor’s Subsidiary Guarantee. If any Event of
Default (other than an Event of Default specified in clause (i) or (j) of
Section 6.01 of the Indenture with respect to the Company or any of its
Restricted Subsidiaries that are, alone or in combination, Significant
Subsidiaries) occurs and is continuing, the Trustee or the Holders of at least
25% in principal amount of the then outstanding Notes may declare all the Notes
to be due and payable immediately. Upon any such declaration the Notes shall
become due and payable immediately. Notwithstanding the foregoing, in the case
of an Event of Default arising from certain events of bankruptcy or insolvency
as specified in clauses (i) and (j) of Section 6.01 of the Indenture with
respect to the Company or any of its Restricted Subsidiaries that are, alone or
in combination, Significant Subsidiaries, all outstanding Notes will become due
and payable immediately without further action or notice. Holders of a majority
in principal amount of the then outstanding Notes may direct the time, method
and place of conducting any proceeding for exercising any remedy available to
the Trustee or exercising any trust or power conferred on it. The Trustee may
withhold from Holders of the Notes notice of any continuing Default or Event of
Default (except a Default or Event of Default relating to the payment of
principal of, premium, if any, or interest on any Note) if and so long as a
committee of its Responsible Officers in good faith determines that withholding
notice is in the interests of the Holders of the Notes. The Holders of a
majority in aggregate principal amount of the then outstanding Notes by notice
to the Trustee may on behalf of the Holders of all of the Notes waive any
existing Default and its consequences under the Indenture except a continuing
Default in the payment of principal of, Special Interest, if any, or interest
on, the Notes (other than non-payment of principal of or interest on or Special
Interest, if any, on the Notes that become due solely because of the
acceleration of the Notes) (provided that the Holders of a majority in
aggregate principal amount of the then outstanding Notes may rescind an
acceleration and its consequences, including any related payment default that
resulted from such acceleration). The Company is required to deliver to the
Trustee annually a statement regarding compliance with the Indenture, and the
Company is required upon becoming aware of any Default or Event of Default, to
deliver to the Trustee a statement specifying such Default or Event Default.


 


13.           TRUSTEE DEALINGS WITH COMPANY. The Trustee, in its individual or any
other capacity, may make loans to, accept deposits from, and perform services
for the Company or its Affiliates, and may otherwise deal with the Company or
its Affiliates, as if it were not the Trustee.


 


A2-7

















 


14.           NO RECOURSE AGAINST OTHERS. A director, officer, employee, incorporator
or stockholder, of the Company, as such, shall not have any liability for any
obligations of the Company under the Notes or the Indenture or for any claim
based on, in respect of, or by reason of, such obligations or their creation.
Each Holder by accepting a Note waives and releases all such liability. The
waiver and release are part of the consideration for the issuance of the Notes.


 


15.           AUTHENTICATION. This Note shall not be valid until authenticated by the
manual signature of the Trustee or an authenticating agent.


 


16.           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 right of survivorship
and not as tenants in common), CUST (= Custodian), and U/G/M/A (= Uniform Gifts
to Minors Act).


 


17.           ADDITIONAL RIGHTS OF HOLDERS OF RESTRICTED GLOBAL NOTES AND RESTRICTED
DEFINITIVE NOTES. In addition to the rights provided to Holders of Notes under
the Indenture, Holders of Restricted Global Notes and Restricted Definitive
Notes shall have all the rights set forth in the Exchange Registration Rights
Agreement dated as of December 23, 2003, between the Company and the parties
named on the signature pages thereof or, in the case of Additional Notes,
Holders of Restricted Global Notes and Restricted Definitive Notes shall have
the rights set forth in one or more registration rights agreements, if any,
among the Company and the other parties thereto relating to rights given by the
Company to the purchasers of Additional Notes (collectively, the “Registration
Rights Agreement”).


 


18.           CUSIP NUMBERS. Pursuant to a recommendation promulgated by the
Committee on Uniform Security Identification Procedures, the Company has caused
CUSIP numbers to be printed on the Notes and the Trustee may use CUSIP 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.


 


The
Company will furnish to any Holder upon written request and without charge a
copy of the Indenture and/or the Registration Rights Agreement. Requests may be
made to:


 


Asbury
Automotive Group, Inc.

3 Landmark Square, Suite 500

Stamford, Connecticut  06901

Attention:  Chief Financial Officer


 


A2-8

















 


ASSIGNMENT FORM


 


To
assign this Note, fill in the form below:


 


	
  (I)
  or (we) assign and transfer this Note to:

  	
   

  
	
   

  	
  (Insert assignee’s legal name)

  
	
   

  
	
   

  
	
  (Insert assignee’s Social Security or Tax Identification Number)

  
	
   

  
	
   

  
	
   

  
	
   

  
	
  (Print or type assignee’s name, address and zip code)

  



 


and
irrevocably appoint
                                                                                                                            
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 face of this Note)

  
	
   

  	
   

  
	
  Signature
  Guarantee*: 

  	
   

  	
   

  
					



 












*              Participant
in a recognized Signature Guarantee Medallion Program (or other signature
guarantor acceptable to the Trustee)


 


A2-9

















 


OPTION OF HOLDER TO ELECT PURCHASE


 


If
you want to elect to have this Note purchased by the Company pursuant to
Section 4.10 or 4.15 of the Indenture check the appropriate box below.


 


	
   

  	
  o Section 4.10

  	
   

  	
   

  	
  o Section 4.15

  



 


If
you want to elect to have only part of the Note purchased by the Company
pursuant to Section 4.10 or Section 4.15 of the Indenture, state the amount you
elect to have purchased:


 


$                           


 


	
  Date:
  

  	
   

  	
   

  



 


 


	
   

  	
  Your
  Signature: 

  	
   

  
	
   

  	
  (Sign
  exactly as your name appears on the face of this Note)

  
	
   

  	
  Tax
  Identification No.: 

  	
   

  
	
   

  	
   

  
	
  Signature
  Guarantee*: 

  	
   

  	
   

  
						



 












*      Participant in a recognized Signature
Guarantee Medallion Program (or other signature guarantor acceptable to the
Trustee).


 


A2-10

















 


SCHEDULE OF EXCHANGES OF INTERESTS IN THE GLOBAL NOTE


 


The
following exchanges of a part of this Global Note for an interest in another
Global Note or for a Definitive Note, or exchanges of a part of another Global
Note or Definitive Note for an interest 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 Note

  Custodian

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  



 


A2-11

















 


EXHIBIT
B


 


FORM OF CERTIFICATE OF TRANSFER


 


Asbury
Automotive Group, Inc.

3 Landmark Square, Suite 500

Stamford, Connecticut  06901


 


[Registrar
address block]


 


Re:          8% Senior Subordinated Notes due 2014


 


Reference
is hereby made to the Indenture, dated as of December 23, 2003 (the “Indenture”),
between Asbury Automotive Group, Inc., as issuer (the “Company”), the
subsidiary guarantors listed on Schedule I to the Indenture, and The Bank of
New York, as Trustee. Capitalized terms used but not defined herein shall have
the meanings given to them in the Indenture.


 


                                       ,
(the “Transferor”) owns and proposes to transfer the Note[s]
or interest in such Note[s] specified in Annex A hereto, in the
principal amount of
$                              
in such Note[s] or interests (the “Transfer”), to
                                                 
(the “Transferee”), as further specified in Annex A hereto. In
connection with the Transfer, the Transferor hereby certifies that:


 


[CHECK ALL THAT APPLY]


 


1.             o CHECK
IF TRANSFEREE WILL TAKE DELIVERY OF A BENEFICIAL INTEREST IN THE 144A GLOBAL
NOTE OR A DEFINITIVE NOTE PURSUANT TO RULE l44A. The Transfer is being effected
pursuant to and in accordance with Rule 144A under the United States Securities
Act of 1933, as amended (the “Securities Act”), and, accordingly, the
Transferor hereby further certifies that the beneficial interest or Definitive
Note is being transferred to a Person that the Transferor reasonably believed
and believes is purchasing the beneficial interest or Definitive Note for its
own account, or for one or more accounts with respect to which such Person
exercises sole investment discretion, and such Person and each such account is
a “qualified institutional buyer” within the meaning of Rule l44A in a
transaction meeting the requirements of Rule l44A and such Transfer is in
compliance with any applicable blue sky securities laws of any state of the
United States. Upon consummation of the proposed Transfer in accordance with
the terms of the Indenture, the transferred beneficial interest or Definitive
Note will be subject to the restrictions on transfer enumerated in the Private
Placement Legend printed on the 144A Global Note and/or the Definitive Note and
in the Indenture and the Securities Act.


 


2.             o CHECK
IF TRANSFEREE WILL TAKE DELIVERY OF A BENEFICIAL INTEREST IN THE TEMPORARY
REGULATION S GLOBAL NOTE, THE REGULATION S GLOBAL NOTE OR A DEFINITIVE NOTE
PURSUANT TO REGULATION S. The Transfer is being effected pursuant to and in
accordance with Rule 903 or Rule 904 under the Securities Act and, accordingly,
the Transferor hereby further certifies that (i) the Transfer is not being made
to a person in the United States and (x) at the time the buy order was
originated, the Transferee was outside the United States or such Transferor and
any Person acting on its behalf reasonably believed and believes that the
Transferee was outside the United


 


B-1

















 


States or (y) the transaction was executed
in, on or through the facilities of a designated offshore securities market and
neither such Transferor nor any Person acting on its behalf knows that the
transaction was prearranged with a buyer in the United States, (ii) no directed
selling efforts have been made in contravention of the requirements of Rule
903(b) or Rule 904(b) of Regulation S under the Securities Act (iii) the
transaction is not part of a plan or scheme to evade the registration
requirements of the Securities Act and (iv) if the proposed transfer is being
made prior to the expiration of the Restricted Period, the transfer is not
being made to a U.S. Person or for the account or benefit of a U.S. Person
(other than an Initial Purchaser). Upon consummation of the proposed transfer
in accordance with the terms of the Indenture, the transferred beneficial
interest or Definitive Note will be subject to the restrictions on Transfer
enumerated in the Private Placement Legend printed on the Regulation S Global
Note, the Temporary Regulation S Global Note and/or the Definitive Note and in
the Indenture and the Securities Act.


 


3.             o CHECK
AND COMPLETE IF TRANSFEREE WILL TAKE DELIVERY OF A BENEFICIAL INTEREST IN THE
144A GLOBAL NOTE OR A DEFINITIVE NOTE PURSUANT TO ANY PROVISION OF THE
SECURITIES ACT OTHER THAN RULE 144A OR REGULATION S. The Transfer is being
effected in compliance with the transfer restrictions applicable to beneficial
interests in Restricted Global Notes and Restricted Definitive Notes and
pursuant to and in accordance with the Securities Act and any applicable blue
sky securities laws of any state of the United States, and accordingly the
Transferor hereby further certifies that (check one):


 


(a)           o such Transfer is being effected pursuant to
and in accordance with Rule 144
under the Securities Act;


 


or


 


(b)           o such Transfer is being effected to the
Company or a subsidiary thereof;


 


or


 


(c)           o such Transfer is being effected pursuant to
an effective registration statement under the Securities Act and in compliance
with the prospectus delivery requirements of the Securities Act;


 


or


 


(d)           o such Transfer is being effected to an
Institutional Accredited Investor and pursuant to an exemption from the
registration requirements of the Securities Act other than Rule 144A, Rule 144
or Rule 904, and the Transferor hereby further certifies that it has not
engaged in any general solicitation within the meaning of Regulation D under
the Securities Act and the Transfer complies with the transfer restrictions
applicable to beneficial interests in a Restricted Global Note or Restricted
Definitive Notes and the requirements of the exemption claimed, which
certification is supported by (1) a certificate executed by the Transferee in
the form of Exhibit D to the Indenture and (2) an Opinion of Counsel provided
by the Transferor or the Transferee (a copy of which the Transferor has attached
to this certification), to the effect that such Transfer is in


 


B-2

















 


compliance
with the Securities Act. Upon consummation of the proposed transfer in
accordance with the terms of the Indenture, the transferred beneficial interest
or Definitive Note will be subject to the restrictions on transfer enumerated
in the Private Placement Legend printed on the 144A Global Note and/or the
Definitive Notes and in the Indenture and the Securities Act.


 


4.             o Check
if Transferee will take delivery of a beneficial interest in an Unrestricted
Global Note or of an Unrestricted Definitive Note.


 


(a)           o Check if Transfer is pursuant to Rule 144.
(i) The Transfer is being effected pursuant to and in accordance with Rule 144 under
the Securities Act and in compliance with the transfer restrictions contained
in the Indenture and any applicable blue sky securities laws of any state of
the United States and (ii) the restrictions on transfer contained in the
Indenture and the Private Placement Legend are not required in order to
maintain compliance with the Securities Act. Upon consummation of the proposed
Transfer in accordance with the terms of the Indenture, the transferred
beneficial interest or Definitive Note will no longer be subject to the
restrictions on transfer enumerated in the Private Placement Legend printed on
the Restricted Global Notes, on Restricted Definitive Notes and in the
Indenture.


 


(b)           o Check if Transfer is Pursuant to Regulation
S. (i) The Transfer is being effected pursuant to and in accordance with Rule
903 or Rule 904 under the Securities Act and in compliance with the transfer
restrictions contained in the Indenture and any applicable blue sky securities
laws of any state of the United States and (ii) the restrictions on transfer
contained in the Indenture and the Private Placement Legend are not required in
order to maintain compliance with the Securities Act. Upon consummation of the
proposed Transfer in accordance with the terms of the Indenture, the transferred
beneficial interest or Definitive Note will no longer be subject to the
restrictions on transfer enumerated in the Private Placement Legend printed on
the Restricted Global Notes, on Restricted Definitive Notes and in the
Indenture.


 


(c)           o Check if Transfer is Pursuant to Other
Exemption. (i) The Transfer is being effected pursuant to and in compliance
with an exemption from the registration requirements of the Securities Act
other than Rule 144, Rule 903 or Rule 904 and in compliance with the transfer
restrictions contained in the Indenture and any applicable blue sky securities
laws of any State of the United States and (ii) the restrictions on transfer
contained in the Indenture and the Private Placement Legend are not required in
order to maintain compliance with the Securities Act. Upon consummation of the
proposed Transfer in accordance with the terms of the Indenture, the
transferred beneficial interest or Definitive Note will not be subject to the
restrictions on transfer enumerated in the Private Placement Legend printed on
the Restricted Global Notes or Restricted Definitive Notes and in the
Indenture.


 


B-3

















This
certificate and the statements contained herein are made for your benefit and the
benefit of the Company.


 


	
   

  	
   

  
	
   

  	
  [Insert Name of Transferor]

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Name:

  Title

  
	
   

  	
   

  
	
   

  	
   

  
	
  Date:

  	
   

  	
   

  	
   

  
					



 


B-4

















 


ANNEX A TO CERTIFICATE OF TRANSFER


 


	
  1.

  	
   

  	
  The
  Transferor owns and proposes to transfer the following:

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
  [CHECK ONE OF (a) OR (b)]

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  (a)

  	
  o

  	
  a
  beneficial interest in the:

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
  (i)

  	
  o        144A
  Global Note (CUSIP
                      ),
  or

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
  (ii)

  	
  o        Regulation
  S Global Note (CUSIP
                 ),
  or

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  (b)

  	
  a
  Restricted Definitive Note.

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  2.

  	
   

  	
  After
  the Transfer the Transferee will hold:

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
  [CHECK ONE]

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  (a)

  	
  o

  	
  a
  beneficial interest in the:

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
  (i)

  	
  o          144A
  Global Note (CUSIP
                  ),
  or

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
  (ii)

  	
  o          Regulation
  S Global Note (CUSIP
                 ),
  or

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
  (iii)

  	
  o         Unrestricted
  Global Note (CUSIP
                    );
  or

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  (b)

  	
  o

  	
  a
  Restricted Definitive Note; or

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  (c)

  	
  o

  	
  an
  Unrestricted Definitive Note,

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  in
  accordance with the terms of the Indenture.

  



 


B-5

















 


EXHIBIT
C


 


FORM OF CERTIFICATE OF EXCHANGE


 


Asbury
Automotive Group, Inc.

3 Landmark Square, Suite 500

Stamford, Connecticut 06901.


 


[Registrar
address block]


 


Re:          8% Senior Subordinated Notes due 2014


 


(CUSIP
                )


 


Reference
is hereby made to the Indenture, dated as of December 23, 2003 (the “Indenture”),
between Asbury Automotive Group, Inc., as issuer (the “Company”), the
subsidiary guarantors listed on Schedule I to the Indenture, and The Bank of
New York, as Trustee. Capitalized terms used but not defined herein shall have
the meanings given to them in the Indenture.


 


                                                         
, (the “Owner”) owns and proposes to exchange the Note[s]
or interest in such Note[s] specified herein, in the principal amount
of
$                       
in such Note[s] or interests (the “Exchange”). In
connection with the Exchange, the Owner hereby certifies that:


 


1.  EXCHANGE OF RESTRICTED DEFINITIVE NOTES OR
BENEFICIAL INTERESTS IN A RESTRICTED GLOBAL NOTE FOR UNRESTRICTED DEFINITIVE
NOTES OR BENEFICIAL INTERESTS IN AN UNRESTRICTED GLOBAL NOTE


 


(a)           o CHECK
IF EXCHANGE IS FROM BENEFICIAL INTEREST IN A RESTRICTED GLOBAL NOTE TO
BENEFICIAL INTEREST IN AN UNRESTRICTED GLOBAL NOTE. In connection with the
Exchange of the Owner’s beneficial interest in a Restricted Global Note for a
beneficial interest in an Unrestricted Global Note in an equal principal
amount, the Owner hereby certifies (i) the beneficial interest is being
acquired for the Owner’s own account without transfer, (ii) such Exchange has
been effected in compliance with the transfer restrictions applicable to the
Global Notes and pursuant to and in accordance with the United States Securities
Act of 1933, as amended (the “Securities Act”), (iii) the restrictions
on transfer contained in the Indenture and the Private Placement Legend are not
required in order to maintain compliance with the Securities Act and (iv) the
beneficial interest in an Unrestricted Global Note is being acquired in
compliance with any applicable blue sky securities laws of any state of the
United States.


 


(b)           o CHECK
IF EXCHANGE IS FROM BENEFICIAL INTEREST IN A RESTRICTED GLOBAL NOTE TO
UNRESTRICTED DEFINITIVE NOTE. In connection with the Exchange of the Owner’s
beneficial interest in a Restricted Global Note for an Unrestricted Definitive
Note, the Owner hereby certifies (i) the Definitive Note is being acquired for
the Owner’s own account without transfer, (ii) such Exchange has been effected
in compliance with the transfer restrictions applicable to the Restricted
Global Notes and pursuant to and in accordance with the Securities Act, (iii)
the restrictions on transfer contained in the Indenture and the Private
Placement Legend are not required in order to maintain compliance with the
Securities Act and (iv) the Definitive Note is being acquired in compliance
with any applicable blue sky securities laws of any state of the United States.


 


C-1

















 


(c)           o CHECK
IF EXCHANGE IS FROM RESTRICTED DEFINITIVE NOTE TO BENEFICIAL INTEREST IN AN
UNRESTRICTED GLOBAL NOTE. In connection with the Owner’s Exchange of a
Restricted Definitive Note for a beneficial interest in an Unrestricted Global
Note, the Owner hereby certifies (i) the beneficial interest is being acquired
for the Owner’s own account without transfer, (ii) such Exchange has been
effected in compliance with the transfer restrictions applicable to Restricted
Definitive Notes and pursuant to and in accordance with the Securities Act,
(iii) the restrictions on transfer contained in the Indenture and the Private
Placement Legend are not required in order to maintain compliance with the
Securities Act and (iv) the beneficial interest is being acquired in compliance
with any applicable blue sky securities laws of any state of the United States.


 


(d)           o CHECK
IF EXCHANGE IS FROM RESTRICTED DEFINITIVE NOTE TO UNRESTRICTED DEFINITIVE NOTE.
In connection with the Owner’s Exchange of a Restricted Definitive Note for an
Unrestricted Definitive Note, the Owner hereby certifies (i) the Unrestricted
Definitive Note is being acquired for the Owner’s own account without transfer,
(ii) such Exchange has been effected in compliance with the transfer
restrictions applicable to Restricted Definitive Notes and pursuant to and in
accordance with the Securities Act, (iii) the restrictions on transfer
contained in the Indenture and the Private Placement Legend are not required in
order to maintain compliance with the Securities Act and (iv) the Unrestricted
Definitive Note is being acquired in compliance with any applicable blue sky
securities laws of any state of the United States.


 


2.             EXCHANGE OF RESTRICTED DEFINITIVE NOTES OR
BENEFICIAL INTERESTS IN RESTRICTED GLOBAL NOTES FOR RESTRICTED DEFINITIVE NOTES
OR BENEFICIAL INTERESTS IN RESTRICTED GLOBAL NOTES


 


(a)           o CHECK
IF EXCHANGE IS FROM BENEFICIAL INTEREST IN A RESTRICTED GLOBAL NOTE TO
RESTRICTED DEFINITIVE NOTE. In connection with the Exchange of the Owner’s
beneficial interest in a Restricted Global Note for a Restricted Definitive
Note with an equal principal amount, the Owner hereby certifies that the
Restricted Definitive Note is being acquired for the Owner’s own account
without transfer. Upon consummation of the proposed Exchange in accordance with
the terms of the Indenture, the Restricted Definitive Note issued will continue
to be subject to the restrictions on transfer enumerated in the Private
Placement Legend printed on the Restricted Definitive Note and in the Indenture
and the Securities Act.


 


(b)           o CHECK
IF EXCHANGE IS FROM RESTRICTED DEFINITIVE NOTE TO BENEFICIAL INTEREST IN A
RESTRICTED GLOBAL NOTE. In connection with the Exchange of the Owner’s
Restricted Definitive Note for a beneficial interest in the [CHECK ONE]o 144A Global Note or o Regulation S Global Note with an equal
principal amount, the Owner hereby certifies (i) the beneficial interest is
being acquired for the Owner’s own account without transfer and (ii) such
Exchange has been effected in compliance with the transfer restrictions
applicable to the Restricted Global Notes and pursuant to and in accordance
with the Securities Act, and in compliance with any applicable blue sky
securities laws of any state of the United States. Upon consummation of the
proposed Exchange in accordance with the terms of the Indenture, the beneficial
interest issued will be subject to the restrictions on transfer enumerated in
the Private Placement Legend printed on the relevant Restricted Global Note and
in the Indenture and the Securities Act.


 


C-2

















 


This
certificate and the statements contained herein are made for your benefit and
the benefit of the Company.


 


	
   

  	
   

  
	
   

  	
  [Insert Name of Transferor]

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Name:

  Title

  
	
   

  	
   

  	
   

  
	
  Date:

  	
   

  	
   

  	
   

  	
   

  
					



 


C-3

















 


EXHIBIT
D


 


FORM OF CERTIFICATE FROM

ACQUIRING INSTITUTIONAL ACCREDITED INVESTOR


 


Asbury
Automotive Group, Inc.

3 Landmark Square, Suite 500

Stamford, Connecticut 06901


 


[Registrar
address block]


 


Re:          8% Senior Subordinated Notes due 2014


 


Reference
is hereby made to the Indenture, dated as of December 23, 2003 (the “Indenture”),
between Asbury Automotive Group, Inc., as issuer (the “Company”), the
subsidiary guarantors listed on Schedule I to the Indenture, and The Bank of
New York, as Trustee. Capitalized terms used but not defined herein shall have
the meanings given to them in the Indenture.


 


In
connection with our proposed purchase of
$                       
aggregate principal amount of:


 


(a)           o a
beneficial interest in a Global Note, or


 


(b)           o a
Definitive Note,


 


we
confirm that:


 


1.             We understand that any subsequent transfer of
the Notes or any interest therein is subject to certain restrictions and
conditions set forth in the Indenture and the undersigned agrees to be bound
by, and not to resell, pledge or otherwise transfer the Notes or any interest
therein except in compliance with, such restrictions and conditions and the
United States Securities Act of 1933, as amended (the “Securities Act”).


 


2.             We understand that the offer and sale of the
Notes have not been registered under the Securities Act, and that the Notes and
any interest therein may not be offered or sold except as permitted in the
following sentence. We agree, on our own behalf and on behalf of any accounts
for which we are acting as hereinafter stated, that if we should sell the Notes
or any interest therein, we will do so only (A) to the Company or any
subsidiary thereof, (B) in accordance with Rule 144A under the Securities Act
to a “qualified institutional buyer” (as defined therein), (C) to an
institutional “accredited investor” (as defined below) that, prior to
such transfer, furnishes (or has furnished on its behalf by a U.S.
broker-dealer) to you and to the Company a signed letter substantially in the
form of this letter and an Opinion of Counsel in form reasonably acceptable to
the Company to the effect that such transfer is in compliance with the
Securities Act, (D) outside the United States in accordance with Rule 904 of
Regulation S under the Securities Act, (E) pursuant to the provisions of Rule
144(k) under the Securities Act or (F) pursuant to an effective registration
statement under the Securities Act, and we further agree to provide to any
person purchasing the Definitive Note or beneficial interest in a Global Note
from us in a transaction meeting the requirements of clauses (A) through (E) of
this paragraph a notice advising such purchaser that resales thereof are
restricted as stated herein.


 


D-1

















 


3.             We understand that, on any proposed resale of
the Notes or beneficial interest therein, we will be required to furnish to you
and the Company such certifications, legal opinions and other information as
you and the Company may reasonably require to confirm that the proposed sale
complies with the foregoing restrictions. We further understand that the Notes
purchased by us will bear a legend to the foregoing effect.


 


4.             We are an institutional “accredited
investor” (as defined in Rule 501(a)(1), (2), (3) or (7) of Regulation D
under the Securities Act) and have such knowledge and experience in financial
and business matters as to be capable of evaluating the merits and risks of our
investment in the Notes, and we and any accounts for which we are acting are
each able to bear the economic risk of our or its investment.


 


5.             We are acquiring the Notes or beneficial
interest therein purchased by us for our own account or for one or more
accounts (each of which is an institutional “accredited investor”) as to
each of which we exercise sole investment discretion.


 


You
and the Company are entitled to rely upon this letter and are irrevocably
authorized to produce this letter or a copy hereof to any interested party in
any administrative or legal proceedings or official inquiry with respect to the
matters covered hereby.


 


	
   

  	
   

  
	
   

  	
  [Insert Name of Transferor]

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Name:

  Title

  
	
   

  	
   

  	
   

  
	
  Date:

  	
   

  	
   

  	
   

  	
   

  
					



 


D-2

















 


EXHIBIT
E


 


[FORM OF SUBSIDIARY GUARANTEE]


 


For
value received, the Guarantors (which term includes any successor Persons under
the Indenture) have, jointly and severally, guaranteed, to the extent set forth
in the Indenture and subject to the provisions in the Indenture, dated as of
December 23, 2003 (the “Indenture”), among Asbury Automotive Group,
Inc., the Guarantors listed on Schedule I thereto and The Bank of New York, as
trustee (the “Trustee”), (a) that the principal and premium, if any, of
and interest and Special Interest, if any, on the Notes (as defined in the
Indenture) will be promptly paid in full when due, whether at maturity, by
acceleration, redemption or otherwise, and interest on the overdue principal
and premium, if any, of and interest and Special Interest, if any, on the
Notes, if any, if lawful, and all other obligations of the Company to the
Holders or the Trustee under the Indenture or the Notes will be promptly paid
in full or performed, all in accordance with the terms of the Indenture and the
Notes and (b) in case of any extension of time of payment or renewal of any
Notes or any of such other obligations, that the same will be promptly paid in
full when due or performed in accordance with the terms of the extension or
renewal, whether at stated maturity, by acceleration or otherwise. The
obligations of the Guarantors to the Holders of Notes and to the Trustee
pursuant to the Subsidiary Guarantee and the Indenture are expressly set forth
in Article 11 of the Indenture and reference is hereby made to the Indenture
for the precise terms of the Subsidiary Guarantee. Each Holder of a Note, by
accepting the same, (a) agrees to and shall be bound by such provisions, (b)
authorizes and directs the Trustee, on behalf of such Holder, to take such
action as may be necessary or appropriate to effectuate the subordination as
provided in the Indenture and (c) appoints the Trustee attorney-in-fact of such
Holder for such purpose; provided that the Indebtedness evidenced by this
Subsidiary Guarantee shall cease to be so subordinated and subject in right of
payment upon any defeasance of this Note in accordance with the provisions of
the Indenture.


 


	
   

  	
  [NAME
  OF GUARANTOR(S)]

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Name:

  Title

  



 


E-1

















 


EXHIBIT F


 


[FORM OF SUPPLEMENTAL INDENTURE

TO BE DELIVERED BY SUBSEQUENT GUARANTORS]


 


SUPPLEMENTAL
INDENTURE (this “Supplemental Indenture”), dated as of
                                 ,
among                                    (the
“Guaranteeing Subsidiary”), a subsidiary of Asbury Automotive Group,
Inc. (or its permitted successor), a Connecticut corporation (the “Company”),
the Company, the other Guarantors (as defined in the Indenture referred to
herein) and The Bank of New York, as trustee under the indenture referred to
below (the “Trustee”).


 


W I T N E S S E T H


 


WHEREAS,
the Company has heretofore executed and delivered to the Trustee an indenture
(the “Indenture”), dated as of December 23, 2003 providing for the
issuance of 8% Senior Subordinated Notes due 2014 (the “Notes”);


 


WHEREAS,
the Indenture provides that under certain circumstances the Guaranteeing
Subsidiary shall execute and deliver to the Trustee a supplemental indenture
pursuant to which the Guaranteeing Subsidiary shall unconditionally guarantee
all of the Company’s Obligations under the Notes and the Indenture on the terms
and conditions set forth herein (the “Subsidiary Guarantee”); and


 


WHEREAS,
pursuant to Section 9.01 of the Indenture, the Trustee is authorized to execute
and deliver this Supplemental Indenture.


 


NOW
THEREFORE, in consideration of the foregoing and for other good and valuable
consideration, the receipt of which is hereby acknowledged, the Guaranteeing
Subsidiary and the Trustee mutually covenant and agree for the equal and
ratable benefit of the Holders of the Notes as follows:


 


1.             CAPITALIZED TERMS. Capitalized terms used
herein without definition shall have the meanings assigned to them in the
Indenture.


 


2.             AGREEMENT TO GUARANTEE. The Guaranteeing
Subsidiary hereby agrees as follows:


 


(a)           Along
with all Guarantors named in the Indenture, to jointly and severally Guarantee
to each Holder of a Note authenticated and delivered by the Trustee and to the
Trustee and its successors and assigns, the Notes or the obligations of the
Company hereunder or thereunder, that:


 


(i)            the
principal of and interest on the Notes will be promptly paid in full when due,
whether at maturity, by acceleration, redemption or otherwise, and interest on
the overdue principal of and interest on the Notes, if any, if lawful, and all
other obligations of the Company to the Holders or the Trustee hereunder or
thereunder will be promptly paid in full or performed, all in accordance with
the terms hereof and thereof; and


 


F-1

















 


(ii)           in
case of any extension of time of payment or renewal of any Notes or any of such
other obligations, that same will be promptly paid in full when due or
performed in accordance with the terms of the extension or renewal, whether at
stated maturity, by acceleration or otherwise. Failing payment when due of any
amount so guaranteed or any performance so guaranteed for whatever reason, the
Guarantors shall be jointly and severally obligated to pay the same
immediately.


 


(b)           The
obligations hereunder shall be unconditional, irrespective of the validity,
regularity or enforceability of the Notes or the Indenture, the absence of any
action to enforce the same, any waiver or consent by any Holder of the Notes
with respect to any provisions hereof or thereof, the recovery of any judgment
against the Company, any action to enforce the same or any other circumstance
which might otherwise constitute a legal or equitable discharge or defense of a
guarantor.


 


(c)           The
following is hereby waived: diligence, presentment, demand of payment, filing
of claims with a court in the event of insolvency or bankruptcy of the Company,
any right to require a proceeding first against the Company, protest, notice
and all demands whatsoever.


 


(d)           This
Subsidiary Guarantee shall not be discharged except by complete performance of
the obligations contained in the Notes and the Indenture, and the Guaranteeing
Subsidiary accepts all obligations of a Guarantor under the Indenture.


 


(e)           If
any Holder or the Trustee is required by any court or otherwise to return to
the Company, the Guarantors, or any Custodian, Trustee, liquidator or other
similar official acting in relation to either the Company or the Guarantors,
any amount paid by either to the Trustee or such Holder, this Subsidiary
Guarantee, to the extent theretofore discharged, shall be reinstated in full
force and effect.


 


(f)            The
Guaranteeing Subsidiary shall not be entitled to any right of subrogation in
relation to the Holders in respect of any obligations guaranteed hereby until
payment in full of all obligations guaranteed hereby.


 


(g)           As
between the Guarantors, on the one hand, and the Holders and the Trustee, on
the other hand, (x) the maturity of the obligations guaranteed hereby may be
accelerated as provided in Article 6 of the Indenture for the purposes of this
Subsidiary Guarantee, notwithstanding any stay, injunction or other prohibition
preventing such acceleration in respect of the obligations guaranteed hereby,
and (y) in the event of any declaration of acceleration of such obligations as
provided in Article 6 of the Indenture, such obligations (whether or not due
and payable) shall forthwith become due and payable by the Guarantors for the
purpose of this Subsidiary Guarantee.


 


F-2

















 


(h)           The
Guarantors shall have the right to seek contribution from any non-paying
Guarantor so long as the exercise of such right does not impair the rights of
the Holders under the Guarantee.


 


(i)            Pursuant
to Section 10.02 of the Indenture, after giving effect to any maximum amount
and any other contingent and fixed liabilities that are relevant under any
applicable Bankruptcy or fraudulent conveyance laws, and after giving effect to
any collections from, rights to receive contribution from or payments made by
or on behalf of any other Guarantor in respect of the obligations of such other
Guarantor under Article 10 of the Indenture, this new Subsidiary Guarantee
shall be limited to the maximum amount permissible such that the obligations of
such Guarantor under this Subsidiary Guarantee will not constitute a fraudulent
transfer or conveyance.


 


3.             EXECUTION AND DELIVERY. Each Guaranteeing
Subsidiary agrees that the Subsidiary Guarantees shall remain in full force and
effect notwithstanding any failure to endorse on each Note a notation of such
Subsidiary Guarantee.


 


4.             GUARANTEEING SUBSIDIARY MAY CONSOLIDATE, ETC.
ON CERTAIN TERMS.


 


(a)           The
Guaranteeing Subsidiary may not sell or otherwise dispose of all or substantially
all of its assets to or consolidate with or merge with or into (whether or not
such Guarantor is the surviving Person) another corporation, Person or entity
whether or not affiliated with such Guarantor unless:


 


either


 


(i)


 


(A)          the
Person acquiring the property in any such sale or disposition or the Person
formed by or surviving any such consolidation or merger, if other than such
Guarantor, assumes all the obligations of that Guarantor under the Indenture,
its Guarantee and, if the Exchange Offer has not been consummated or Special
Interest remains due and owing, under the Registration Rights Agreement
pursuant to a supplemental indenture in form and substance reasonably
satisfactory to the Trustee and completes all other required documentation; or


 


(B)           the
Net Proceeds, if any, of such sale or other disposition are applied in
accordance with the provisions of described in the third paragraph of Section
4.10 of this Indenture; and


 


(ii)           immediately
after giving effect to such transaction, no Default exists.


 


(b)           In
case of any such consolidation, merger, sale or conveyance and upon the
assumption by the successor corporation, by supplemental


 


F-3

















 


indenture,
executed and delivered to the Trustee and satisfactory in form to the Trustee,
of the Subsidiary Guarantee endorsed upon the Notes and the due and punctual
performance of all of the covenants and conditions of the Indenture to be
performed by the Guarantor, such successor corporation shall succeed to and be
substituted for the Guarantor with the same effect as if it had been named
herein as a Guarantor. Such successor corporation thereupon may cause to be
signed any or all of the Subsidiary Guarantees to be endorsed upon all of the
Notes issuable hereunder which theretofore shall not have been signed by the
Company and delivered to the Trustee. All the Subsidiary Guarantees so issued
shall in all respects have the same legal rank and benefit under the Indenture
as the Subsidiary Guarantees theretofore and thereafter issued in accordance
with the terms of the Indenture as though all of such Subsidiary Guarantees had
been issued at the date of the execution hereof.


 


(c)           Except
as set forth in Articles 4 and 5 and Section 11.05 of Article 11 of the
Indenture, and notwithstanding clauses (a) and (b) above, nothing contained in
the Indenture or in any of the Notes shall prevent any consolidation or merger
of a Guarantor with or into the Company or another Guarantor, or shall prevent
any sale or conveyance of the property of a Guarantor as an entirety or
substantially as an entirety to the Company or another Guarantor.


 


5.             RELEASES.


 


(a)           In
the event of a sale or other disposition of all of the assets of any Guarantor,
by way of merger, consolidation or otherwise, or a sale or other disposition of
all to the capital stock of any Guarantor, in each case to a Person that is not
(either before or after giving effect to such transaction) a Restricted
Subsidiary of the Company, then such Guarantor (in the event of a sale or other
disposition, by way of merger, consolidation or otherwise, of all of the
capital stock of such Guarantor) or the corporation acquiring the property (in
the event of a sale or other disposition of all or substantially all of the
assets of such Guarantor) will be released and relieved of any obligations
under its Subsidiary Guarantee; provided that the Net Proceeds, if any, of such
sale or other disposition are applied in accordance with the applicable
provisions of the Indenture, including without limitation Section 4.10 of the
Indenture. Upon delivery by the Company to the Trustee of an Officers’
Certificate and an Opinion of Counsel to the effect that such sale or other
disposition was made by the Company in accordance with the provisions of the Indenture,
including without limitation Section 4.10 of the Indenture, the Trustee shall
execute any documents reasonably required in order to evidence the release of
any Guarantor from its obligations under its Note Guarantee.


 


(b)           Any
Guarantor not released from its obligations under its Subsidiary Guarantee
shall remain liable for the full amount of principal of and interest on the
Notes and for the other obligations of any Guarantor under the Indenture as
provided in Article 11 of the Indenture.


 


F-4

















 


6.             NO RECOURSE AGAINST OTHERS. No past, present
or future director, officer, employee, incorporator, stockholder or agent of
the Guaranteeing Subsidiary, as such, shall have any liability for any
obligations of the Company or any Guaranteeing Subsidiary under the Notes, any
Subsidiary Guarantees, the Indenture or this Supplemental Indenture or for any
claim based on, in respect of, or by reason of, such obligations or their
creation. Each Holder of the Notes by accepting a Note waives and releases all
such liability. The waiver and release are part of the consideration for
issuance of the Notes. Such waiver may not be effective to waive liabilities
under the federal securities laws and it is the view of the SEC that such a
waiver is against public policy.


 


7.             NEW YORK LAW TO GOVERN. THE INTERNAL LAW OF
THE STATE OF NEW YORK SHALL GOVERN AND BE USED TO CONSTRUE THIS SUPPLEMENTAL
INDENTURE BUT WITHOUT GIVING EFFECT TO APPLICABLE PRINCIPLES OF CONFLICTS OF
LAW TO THE EXTENT THAT THE APPLICATION OF THE LAWS OF ANOTHER JURISDICTION
WOULD BE REQUIRED THEREBY.


 


8.             COUNTERPARTS. The parties may sign any number
of copies of this Supplemental Indenture. Each signed copy shall be an
original, but all of them together represent the same agreement.


 


9.             EFFECT OF HEADINGS. The Section headings
herein are for convenience only and shall not affect the construction hereof.


 


10.           THE TRUSTEE. The Trustee shall not be responsible in any manner
whatsoever for or in respect of the validity or sufficiency of this
Supplemental Indenture or for or in respect of the recitals contained herein,
all of which recitals are made solely by the Guaranteeing Subsidiary and the
Company.


 


F-5

















 


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


 


SIGNATURES


 


Dated
as of
              ,
200   


 


 


	
   

  	
  ASBURY
  AUTOMOTIVE GROUP, INC.

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
  Name:

  
	
   

  	
  Title

  
	
   

  	
   

  
	
   

  	
  EACH
  GUARANTOR LISTED ON SCHEDULE I HERETO

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
  Name:

  
	
   

  	
  Title

  
	
   

  	
   

  
	
   

  	
  THE
  BANK OF NEW YORK

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
  Name:

  
	
   

  	
  Title

  



 


F-6

















 


Schedule
I


 


SCHEDULE
OF GUARANTORS


 


The
following schedule lists each Guarantor under the Indenture as of the Issue


Date:


 


Asbury
Automotive Financial Services, Inc.


Asbury
Automotive Group Holdings, Inc.


Asbury
Automotive Group L.L.C.


Asbury
Automotive Management L.L.C.


Asbury
Automotive San Diego L.L.C.


Asbury
Automotive Southern California L.L.C.


Asbury
Automotive Used Car Centers


Asbury
Automotive Used Car Centers Texas GP L.L.C.


Asbury
Automotive Used Car Centers Texas L.P.


Asbury
Arkansas Hund L.L.C.


Asbury
Automotive Arkansas Dealership Holdings L.L.C.


Asbury
Automotive Arkansas L.L.C.


Asbury
MS Gray-Daniels L.L.C.


Asbury
MS Metro L.L.C.


Escude-D
L.L.C.


Escude-M
L.L.C.


Escude-MO
L.L.C.


Escude-NN
L.L.C.


Escude-NS
L.L.C.


Hope
CPD L.L.C.


Hope
FLM L.L.C.


NP
FLM L.L.C.


NP
MZD L.L.C.


NP
VKW L.L.C.


Premier
LM L.L.C.


Premier
NSN L.L.C.


Premier
Pon L.L.C.


Prestige
Bay L.L.C.


TXK
CPD, L.P.


TXK
FRD, L.P.


TXK
L.L.C.


Asbury
Atlanta AC L.L.C.


Asbury
Atlanta AU L.L.C.


Asbury
Atlanta BM L.L.C.


Asbury
Atlanta Chevrolet L.L.C.


Asbury
Atlanta Hon L.L.C.


Asbury
Atlanta Infiniti L.L.C.


Asbury
Atlanta Jaguar L.L.C.


Asbury
Atlanta VL L.L.C.


Asbury
Automotive Atlanta L.L.C.


Atlanta
Real Estate Holdings L.L.C.


Spectrum
Insurance Services L.L.C.


Asbury
Automotive Fresno L.L.C.


Asbury
Fresno Imports L.L.C.


 


I-1

















 


AF
Motors, L.L.C.


ALM
Motors, L.L.C.


ANL,
L.P.


Asbury
Automotive Central Florida, L.L.C.


Asbury
Automotive Deland, L.L.C.


Asbury
Automotive Jacksonville GP L.L.C.


Asbury
Automotive Jacksonville, L.P.


Asbury
Deland Imports 2, L.L.C.


Asbury
Jax Holdings, L.P.


Asbury
Jax Management L.L.C.


Asbury-Deland
Imports, L.L.C.


Avenue
Motors, Ltd.


Bayway
Financial Services, L.P.


BFP
Motors L.L.C.


C&O
Properties, Ltd.


CFP
Motors, Ltd.


CH
Motors, Ltd.


CHO
Partnership, Ltd.


CK
Chevrolet L.L.C.


CK
Motors L.L.C.


CN
Motors, Ltd.


Coggin
Automotive Corp.


Coggin
Chevrolet L.L.C.


Coggin
Management, L.P.


Coggin
Orlando Properties L.L.C.


CP-GMC
Motors, Ltd.


CSA
Imports L.L.C.


HFP
Motors L.L.C.


KP
Motors L.L.C.


Asbury
Automotive Mississippi


Asbury
MS Wimber L.L.C.


Asbury
MS Yazoo L.L.C.


Asbury
Automotive North Carolina Dealership Holdings L.L.C.


Asbury
Automotive North Carolina L.L.C.


Asbury
Automotive North Carolina Management L.L.C.


Asbury
Automotive North Carolina Real Estate Holdings L.L.C.


Camco
Finance II L.L.C.


Camco
Finance L.L.C.


Crown
Acura/Nissan, LLC


Crown
Battleground, LLC


Crown
CHH L.L.C.


Crown
CHO L.L.C.


Crown
CHV L.L.C.


Crown
Dodge, LLC


Crown
FDO L.L.C.


Crown
FFO Holdings L.L.C.


Crown
FFO L.L.C.


Crown
Fordham L.L.C.


Crown
GAC L.L.C.


 


I-2

















 


Crown
GAU L.L.C.


Crown
GBM L.L.C.


Crown
GCA L.L.C.


Crown
GCH L.L.C.


Crown
GDO L.L.C.


Crown
GHO L.L.C.


Crown
GKI L.L.C.


Crown
GMI L.L.C.


Crown
GNI L.L.C.


Crown
GPG,L.L.C.


Crown
GVO L.L.C.


Crown
Honda, LLC


Crown
Honda-Volvo, LLC


Crown
Mitsubishi, LLC


Crown
Motorcar Company L.L.C.


Crown
Raleigh L.L.C.


Crown
RIA L.L.C. 


Crown
RIB L.L.C.


Crown
RIS L.L.C.


Crown
Royal Pontiac, LLC


Crown
RPG L.L.C.


Crown
SJC L.L.C.


Crown
SNI L.L.C.


RER
Properties, LLC


RWIJ
Properties, LLC


Asbury
Automotive Oregon L.L.C.


Asbury
Automotive Oregon Management L.L.C.


Damerow
Ford Co.


Thomas
FRD L.L.C.


Thomason
Auto Credit Northwest, Inc.


Thomason
Dam L.L.C.


Thomason
Hon L.L.C.


Thomason
Hund L.L.C.


Thomason
Maz L.L.C.


Thomason
Niss L.L.C.


Thomason
on Canyon, L.L.C.


Thomason
Outfitters L.L.C.


Thomason
Pontiac-GMC L.L.C.


Thomason
Sub L.L.C.


Thomason
Suzu L.L.C.


Thomason
Zuk L.L.C.


Asbury
Automotive St. Louis, L.L.C.


Asbury
St. Louis Cadillac L.L.C.


Asbury
St. Louis Gen L.L.C.


Asbury
Automotive Brandon, L.P.


Asbury
Automotive Tampa GP L.L.C.


Asbury
Automotive Tampa, L.P.


Asbury
Tampa Management L.L.C.


Dealer
Profit Systems L.L.C.


 


I-3

















 


Precision
Computer Services, Inc.


Precision
Enterprises Tampa, Inc.


Precision
Infiniti, Inc.


Precision
Motorcars, Inc.


Precision
Nissan, Inc.


Tampa
Hund, L.P.


Tampa
Kia, L.P.


Tampa
LM, L.P.


Tampa
Mit, L.P.


Tampa
Suzu, L.P.


WMZ
Brandon Motors, L.P.


WMZ
Motors, L.P.


Asbury
Automotive Texas Holdings L.L.C.


Asbury
Automotive Texas L.L.C.


Asbury
Automotive Texas Real Estate Holdings L.P.


Asbury
Texas Management L.L.C.


McDavid
Auction, L.P.


McDavid
Austin-Acra, L.P.


McDavid
Frisco-Hon, L.P.


McDavid
Grande, L.P.


McDavid
Houston-Hon, L.P.


McDavid
Houston-Kia, L.P.


McDavid
Houston-Niss, L.P.


McDavid
Houston-Olds, L.P.


McDavid
Irving-Hon, L.P.


McDavid
Irving-PB&G, L.P.


McDavid
Irving-Zuk, L.P.


McDavid
Outfitters, L.P.


McDavid
Plano-Acra, L.P.


Plano
Lincoln-Mercury, Inc.


 


I-4