Exhibit
4.4


 




 





Execution
Copy


 


 


DFG HOLDINGS, INC.,


 


as Issuer


 


$49,351,422*


 


16% SENIOR
NOTES DUE 2012


 


 












 


 


INDENTURE


 


Dated as of November 13, 2003


 


 


U.S. BANK
NATIONAL ASSOCIATION


 


as Trustee




 





 


 












*                                         Subject
to increase to the extent PIK Notes are issued in payment of interest accruing
on or prior to November 15, 2008.


 

















 


CROSS-REFERENCE
TABLE*


 


	
  Trust Indenture

  Act Section

  	
   

  	
   

  	
   

  	
  Indenture Section

  
	
  310

  	
   

  	
  (a)(1)

  	
   

  	
  8.10

  
	
   

  	
   

  	
  (a)(2)

  	
   

  	
  8.10

  
	
   

  	
   

  	
  (a)(3)

  	
   

  	
  N.A.

  
	
   

  	
   

  	
  (a)(4)

  	
   

  	
  N.A.

  
	
   

  	
   

  	
  (a)(5)

  	
   

  	
  8.10

  
	
   

  	
   

  	
  (b)

  	
   

  	
  8.10

  
	
   

  	
   

  	
  (c)

  	
   

  	
  N.A.

  
	
  311

  	
   

  	
  (a)

  	
   

  	
  8.11

  
	
   

  	
   

  	
  (b)

  	
   

  	
  8.11

  
	
   

  	
   

  	
  (c)

  	
   

  	
  N.A.

  
	
  312

  	
   

  	
  (a)

  	
   

  	
  2.05; 2.07

  
	
   

  	
   

  	
  (b)

  	
   

  	
  11.03

  
	
   

  	
   

  	
  (c)

  	
   

  	
  11.03

  
	
  313

  	
   

  	
  (a)

  	
   

  	
  8.06

  
	
   

  	
   

  	
  (b)(1)

  	
   

  	
  8.06

  
	
   

  	
   

  	
  (b)(2)

  	
   

  	
  8.06; 8.07

  
	
   

  	
   

  	
  (c)

  	
   

  	
  8.06; 11.02

  
	
   

  	
   

  	
  (d)

  	
   

  	
  8.06

  
	
  314

  	
   

  	
  (a)

  	
   

  	
  5.03; 11.02

  
	
   

  	
   

  	
  (b)

  	
   

  	
  N.A.

  
	
   

  	
   

  	
  (c)(1)

  	
   

  	
  11.04

  
	
   

  	
   

  	
  (c)(2)

  	
   

  	
  11.04

  
	
   

  	
   

  	
  (c)(3)

  	
   

  	
  N.A.

  
	
   

  	
   

  	
  (d)

  	
   

  	
  N.A.

  
	
   

  	
   

  	
  (e)

  	
   

  	
  11.05

  
	
   

  	
   

  	
  (f)

  	
   

  	
  N.A.

  
	
  315

  	
   

  	
  (a)

  	
   

  	
  8.01

  
	
   

  	
   

  	
  (b)

  	
   

  	
  8.05; 11.02

  
	
   

  	
   

  	
  (c)

  	
   

  	
  8.01

  
	
   

  	
   

  	
  (d)

  	
   

  	
  8.01

  
	
   

  	
   

  	
  (e)

  	
   

  	
  7.11

  
	
  316

  	
   

  	
  (a)(last sentence)

  	
   

  	
  2.10

  
	
   

  	
   

  	
  (a)(1)(A)

  	
   

  	
  7.05

  
	
   

  	
   

  	
  (a)(1)(B)

  	
   

  	
  7.04

  
	
   

  	
   

  	
  (a)(2)

  	
   

  	
  N.A..

  
	
   

  	
   

  	
  (b)

  	
   

  	
  7.07

  
	
   

  	
   

  	
  (c)

  	
   

  	
  2.07

  
	
  317

  	
   

  	
  (a)(1)

  	
   

  	
  7.08

  
	
   

  	
   

  	
  (a)(2)

  	
   

  	
  7.09

  
	
   

  	
   

  	
  (b)

  	
   

  	
  2.06

  
	
  318

  	
   

  	
  (a)

  	
   

  	
  11.01

  
	
   

  	
   

  	
  (b)

  	
   

  	
  N.A.

  
	
   

  	
   

  	
  (c)

  	
   

  	
  11.01

  



 












N.A.                                                                       means
not applicable.


 

















 


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

  	
  FORMS
  OF NOTES.

  	
   

  
	
  SECTION 2.02

  	
  FORM
  OF FACE OF NOTE

  	
   

  
	
  SECTION 2.03

  	
  FORM
  OF REVERSE OF NOTE

  	
   

  
	
  SECTION 2.04

  	
  EXECUTION
  AND AUTHENTICATION.

  	
   

  
	
  SECTION 2.05

  	
  REGISTRAR
  AND PAYING AGENT.

  	
   

  
	
  SECTION 2.06

  	
  PAYING
  AGENT TO HOLD MONEY IN TRUST.

  	
   

  
	
  SECTION 2.07

  	
  HOLDER
  LISTS.

  	
   

  
	
  SECTION 2.08

  	
  REGISTRATION;
  TRANSFER AND EXCHANGE GENERALLY; CERTAIN TRANSFERS AND EXCHANGES; SECURITIES
  ACT LEGENDS.

  	
   

  
	
  SECTION 2.09

  	
  REPLACEMENT
  NOTES.

  	
   

  
	
  SECTION 2.10

  	
  OUTSTANDING
  NOTES.

  	
   

  
	
  SECTION 2.11

  	
  TREASURY
  NOTES.

  	
   

  
	
  SECTION 2.12

  	
  TEMPORARY
  NOTES.

  	
   

  
	
  SECTION 2.13

  	
  CANCELLATION.

  	
   

  
	
  SECTION 2.14

  	
  DEFAULTED
  INTEREST.

  	
   

  
	
   

  
	
  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

  	
  APPLICATION
  OF REDEMPTION PAYMENTS.

  	
   

  
	
  SECTION 3.09

  	
  MANDATORY
  REDEMPTION; OFFERS TO PURCHASE; OPEN MARKET PURCHASES.

  	
   

  
	
  SECTION 3.10

  	
  OFFER
  TO PURCHASE BY APPLICATION OF EXCESS PROCEEDS.

  	
   

  
	
   

  	
   

  
	
  ARTICLE 4

  SATISFACTION AND DISCHARGE

  
	
   

  
	
  SECTION 4.01

  	
  SATISFACTION
  AND DISCHARGE.

  	
   

  
	
  SECTION 4.02

  	
  APPLICATION
  OF TRUST MONEY.

  	
   

  



 


 

















 


	
  ARTICLE 5

  COVENANTS

  
	
   

  	
   

  
	
  SECTION 5.01

  	
  PAYMENT
  OF NOTES.

  	
   

  
	
  SECTION 5.02

  	
  MAINTENANCE
  OF OFFICE OR AGENCY.

  	
   

  
	
  SECTION 5.03

  	
  REPORTS.

  	
   

  
	
  SECTION 5.04

  	
  COMPLIANCE
  CERTIFICATE.

  	
   

  
	
  SECTION 5.05

  	
  TAXES.

  	
   

  
	
  SECTION 5.06

  	
  STAY,
  EXTENSION AND USURY LAWS.

  	
   

  
	
  SECTION 5.07

  	
  RESTRICTED
  PAYMENTS.

  	
   

  
	
  SECTION 5.08

  	
  DIVIDEND
  AND OTHER PAYMENT RESTRICTIONS AFFECTING SUBSIDIARIES.

  	
   

  
	
  SECTION 5.09

  	
  INCURRENCE
  OF INDEBTEDNESS AND ISSUANCE OF PREFERRED STOCK.

  	
   

  
	
  SECTION 5.10

  	
  ASSET
  SALES.

  	
   

  
	
  SECTION 5.11

  	
  TRANSACTIONS
  WITH AFFILIATES.

  	
   

  
	
  SECTION 5.12

  	
  LIENS.

  	
   

  
	
  SECTION 5.13

  	
  CORPORATE
  EXISTENCE.

  	
   

  
	
  SECTION 5.14

  	
  OFFER
  TO REPURCHASE UPON CHANGE OF CONTROL.

  	
   

  
	
  SECTION 5.15

  	
  SALE
  AND LEASEBACK TRANSACTIONS.

  	
   

  
	
  SECTION 5.16

  	
  LIMITATION
  ON ISSUANCES AND SALES OF CAPITAL STOCK OF SUBSIDIARIES.

  	
   

  
	
  SECTION 5.17

  	
  PAYMENTS
  FOR CONSENTS.

  	
   

  
	
  SECTION 5.18

  	
  COMPLIANCE
  WITH LAW, MAINTENANCE OF PROPERTIES.

  	
   

  
	
  SECTION 5.19

  	
  INSURANCE.

  	
   

  
	
  SECTION 5.20

  	
  FURTHER
  ASSURANCES.

  	
   

  
	
   

  
	
  ARTICLE 6

  SUCCESSORS

  
	
   

  
	
  SECTION 6.01

  	
  MERGER,
  CONSOLIDATION, OR SALE OF ASSETS.

  	
   

  
	
  SECTION 6.02

  	
  SUCCESSOR
  COMPANY SUBSTITUTED.

  	
   

  
	
   

  
	
  ARTICLE 7

  DEFAULTS AND REMEDIES

  
	
   

  
	
  SECTION 7.01

  	
  EVENTS
  OF DEFAULT.

  	
   

  
	
  SECTION 7.02

  	
  ACCELERATION.

  	
   

  
	
  SECTION 7.03

  	
  OTHER
  REMEDIES.

  	
   

  
	
  SECTION 7.04

  	
  WAIVER
  OF PAST DEFAULTS.

  	
   

  
	
  SECTION 7.05

  	
  CONTROL
  BY MAJORITY.

  	
   

  
	
  SECTION 7.06

  	
  LIMITATION ON SUITS.

  	
   

  
	
  SECTION 7.07

  	
  RIGHTS
  OF HOLDERS OF NOTES TO RECEIVE PAYMENT.

  	
   

  
	
  SECTION 7.08

  	
  COLLECTION
  SUIT BY TRUSTEE.

  	
   

  
	
  SECTION 7.09

  	
  TRUSTEE
  MAY FILE PROOFS OF CLAIM.

  	
   

  
	
  SECTION 7.10

  	
  PRIORITIES.

  	
   

  
	
  SECTION 7.11

  	
  UNDERTAKING
  FOR COSTS.

  	
   

  
	
  SECTION 7.12

  	
  SUBORDINATION
  OF SPECIAL MANDATORY REDEMPTION.

  	
   

  



 


ii

















 


	
  ARTICLE 8

  TRUSTEE

  
	
   

  
	
  SECTION 8.01

  	
  DUTIES
  OF TRUSTEE.

  	
   

  
	
  SECTION 8.02

  	
  RIGHTS
  OF TRUSTEE.

  	
   

  
	
  SECTION 8.03

  	
  INDIVIDUAL
  RIGHTS OF TRUSTEE.

  	
   

  
	
  SECTION 8.04

  	
  TRUSTEE’S
  DISCLAIMER.

  	
   

  
	
  SECTION 8.05

  	
  NOTICE
  OF DEFAULTS.

  	
   

  
	
  SECTION 8.06

  	
  REPORTS
  BY TRUSTEE TO HOLDERS OF THE NOTES.

  	
   

  
	
  SECTION 8.07

  	
  COMPENSATION
  AND INDEMNITY.

  	
   

  
	
  SECTION 8.08

  	
  REPLACEMENT
  OF TRUSTEE.

  	
   

  
	
  SECTION 8.09

  	
  SUCCESSOR
  TRUSTEE BY MERGER, ETC.

  	
   

  
	
  SECTION 8.10

  	
  ELIGIBILITY,
  DISQUALIFICATION.

  	
   

  
	
  SECTION 8.11

  	
  PREFERENTIAL
  COLLECTION OF CLAIMS AGAINST COMPANY.

  	
   

  
	
   

  
	
  ARTICLE 9

  LEGAL DEFEASANCE AND COVENANT DEFEASANCE

  
	
   

  
	
  SECTION 9.01

  	
  OPTION
  TO EFFECT LEGAL DEFEASANCE OR COVENANT DEFEASANCE.

  	
   

  
	
  SECTION 9.02

  	
  LEGAL
  DEFEASANCE AND DISCHARGE.

  	
   

  
	
  SECTION 9.03

  	
  COVENANT
  DEFEASANCE.

  	
   

  
	
  SECTION 9.04

  	
  CONDITIONS
  TO LEGAL OR COVENANT DEFEASANCE.

  	
   

  
	
  SECTION 9.05

  	
  DEPOSITED
  MONEY AND U.S.  GOVERNMENT OBLIGATIONS
  TO BE HELD IN TRUST; OTHER MISCELLANEOUS PROVISIONS.

  	
   

  
	
  SECTION 9.06

  	
  REPAYMENT
  TO COMPANY

  	
   

  
	
  SECTION 9.07

  	
  REINSTATEMENT.

  	
   

  
	
   

  
	
  ARTICLE 10

  AMENDMENT, SUPPLEMENT AND WAIVER

  
	
   

  
	
  SECTION 10.01

  	
  WITHOUT
  CONSENT OF HOLDERS OF NOTES.

  	
   

  
	
  SECTION 10.02

  	
  WITH
  CONSENT OF HOLDERS OF NOTES.

  	
   

  
	
  SECTION 10.03

  	
  COMPLIANCE
  WITH TRUST INDENTURE ACT.

  	
   

  
	
  SECTION 10.04

  	
  REVOCATION
  AND EFFECT OF CONSENTS.

  	
   

  
	
  SECTION 10.05

  	
  NOTATION
  ON OR EXCHANGE OF NOTES.

  	
   

  
	
  SECTION 10.06

  	
  TRUSTEE
  TO SIGN AMENDMENTS, ETC.

  	
   

  
	
   

  
	
  ARTICLE 11

  MISCELLANEOUS

  
	
   

  
	
  SECTION 11.01

  	
  TRUST
  INDENTURE ACT CONTROLS.

  	
   

  
	
  SECTION 11.02

  	
  NOTICES.

  	
   

  
	
  SECTION 11.03

  	
  COMMUNICATION
  BY HOLDERS OF NOTES WITH OTHER HOLDERS OF NOTES.

  	
   

  
	
  SECTION 11.04

  	
  CERTIFICATE
  AND OPINION AS TO CONDITIONS PRECEDENT.

  	
   

  
	
  SECTION 11.05

  	
  STATEMENTS
  REQUIRED IN CERTIFICATE OR OPINION.

  	
   

  
	
  SECTION 11.06

  	
  RULES
  BY TRUSTEE AND AGENTS.

  	
   

  
	
  SECTION 11.07

  	
  NO
  PERSONAL LIABILITY OF DIRECTORS, OFFICERS, EMPLOYEES AND STOCKHOLDERS.

  	
   

  
	
  SECTION 11.08

  	
  GOVERNING
  LAW.

  	
   

  



 


iii

















 


	
  SECTION 11.09

  	
  NO
  ADVERSE INTERPRETATION OF OTHER AGREEMENTS.

  	
   

  
	
  SECTION 11.10

  	
  SUCCESSORS.

  	
   

  
	
  SECTION 11.11

  	
  SEVERABILITY.

  	
   

  
	
  SECTION 11.12

  	
  COUNTERPART
  ORIGINALS.

  	
   

  
	
  SECTION 11.13

  	
  TABLE
  OF CONTENTS, HEADINGS, ETC.

  	
   

  



 


iv

















 


INDENTURE dated as of November 13, 2003 between DFG Holdings,
Inc., a Delaware corporation (the “Company”)
and U.S. Bank National Association, as trustee (the “Trustee”).


 


The Company and the Trustee agree as follows for the benefit of each
other and for the equal and ratable benefit of the Holders of the 16% Senior
Notes due 2012 (the “Senior Notes”)
and the 16% Senior Notes due 2012 to be issued in exchange for the Senior Notes
in the Exchange Offer (the “Exchange Senior
Notes” and, together with the Senior Notes, the PIK Notes (as
hereinafter defined) and all notes issued in exchange, replacement or
substitution for the Senior Notes, the PIK Notes or the Exchange Senior Notes,
the “Notes”):


 


ARTICLE 1

DEFINITIONS AND INCORPORATION

BY REFERENCE


 


SECTION 1.01  DEFINITIONS.


 


“Acquired Debt” means
with respect to any specified Person:


 


(1)                                  Indebtedness of any
other Person existing at the time such other Person was merged with or into or
became a Subsidiary of such specified Person, including, without limitation, Indebtedness
Incurred in connection with, or in contemplation of, such other Person merging
with or into or becoming a Subsidiary of such specified Person; and


 


(2)                                  Indebtedness secured
by a Lien encumbering any asset acquired by such specified Person at the time
such asset is acquired by such specified Person.


 


“Affiliate” means, with
respect to any specified Person, 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” (including, with correlative meanings, the
terms “controlling,” “controlled by” and “under common control
with”), as used with respect to any specified 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, however,
that in the case of the Company or any of its Subsidiaries beneficial ownership
of 10% or more of the voting securities of the Company or such Subsidiary, as
the case may be, shall be deemed to be control.  Notwithstanding the foregoing, in no event will the GS Mezzanine
Partners, L.P., GS Mezzanine Partners Offshore, L.P., Stone Street Fund 1998,
L.P., Bridge Street Fund 1998, L.P., Ares Leveraged Investment Fund, L.P., Ares
Leveraged Investment Fund II, L.P. or any of their Affiliates be deemed to be
an Affiliate of the Company.


 


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


 


“Agent Members” means any
member of, or participant in, the Depositary.


 


“Applicable Law” means
all laws, statutes, treaties, rules, codes (including building codes),
ordinances, regulations, certificates, orders and licenses of, and
interpretations by, any Governmental Authority and judgments, decrees,
injunctions, writs, permits, orders or like governmental action of any
Governmental Authority (including environmental laws and those pertaining to
health or safety) applicable to the Company or any of its Subsidiaries or any
of their property or operations.


 

















 


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


 


“Attributable Debt” in
respect of a sale and leaseback transaction means, at the time of
determination, the present value (discounted at the rate of interest implicit
in such transaction, determined in accordance with GAAP) 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).


 


“Bankruptcy Law” means
Title 11 of the United States Code or any similar federal or state bankruptcy,
insolvency, reorganization or other law for the relief of debtors.


 


“Board of Directors”
means the Board of Directors of the Company or any authorized committee of the
Board of Directors.


 


“Borrowing Base” means
the sum of the following for each of DFG and its Subsidiaries:


 


(1)                                  100% of cash held
overnight in store safes;


 


(2)                                  100% of balances held
in store accounts;


 


(3)                                  100% of the amount
payable under the checks held in store safes;


 


(4)                                  100% of clearing
house transfers initiated on the previous day and transfers of same-day funds
to be credited to store accounts;


 


(5)                                  100% of cash held
overnight by armored car carriers;


 


(6)                                  100% of eligible
government receivables in respect of government contracts; and


 


(7)                                  100% of cash balances
held in demand deposit accounts and/or investment accounts;


 


provided, however,
that in no event shall any of the items described in subparagraphs (1) through
(7) above be included in any calculation of the “Borrowing Base” to the extent
any of the same are subject to any Lien other than in favor of the
administrative agent for the benefit of the lenders under the Credit Agreement.  The Borrowing Base shall be determined by
the Company upon each incurrence of Indebtedness, and such determination shall
be conclusive so long as it is made in good faith.


 


The Borrowing Base shall not include any items that have been sold or
that have been pledged or deposited in respect of Indebtedness, and shall be
determined by the Company upon each incurrence of Indebtedness, and such
determination shall be conclusive so long as it is made in good faith.


 


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


 


“Calculation Date” means,
with respect to any calculation of the Fixed Charge Coverage Ratio or the Debt
Ratio, the date on which the event requiring such calculation occurs.


 


“Capital
Expenditures”  means, for any period and with respect to
any Person, the aggregate of all expenditures by such Person and its
Subsidiaries for the acquisition or leasing of fixed or capital assets or
additions to fixed or capital assets (including replacements, capitalized
repairs and improvements during


 


2

















 


such period) which should be capitalized under GAAP on a consolidated
balance sheet of such Person and its Subsidiaries.


 


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


 


“Capital Stock” means:


 


(1)                                  in the case of a
corporation, corporate stock;


 


(2)                                  in the case of an
association or business entity other than a corporation, any and all shares,
interests, participations, rights or other equivalents (however designated) of
corporate stock;


 


(3)                                  in the case of a
partnership, partnership interests (whether general or limited); and


 


(4)                                  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:


 


(5)                                  U.S.  Government Obligations, described in clause
(1) of the definition thereof, having maturities of not more than twelve months
from the date of acquisition;


 


(6)                                  time deposits and
certificates of deposit of any domestic commercial bank of recognized standing
having capital and surplus in excess of $500.0 million, with maturities of not
more than one year from the date of acquisition;


 


(7)                                  repurchase
obligations issued by any bank described in subsection (2) above with a
term not to exceed thirty (30) days;


 


(8)                                  commercial paper
rated at least A-1 or the equivalent thereof by S&P or at least P-1 or the
equivalent thereof by Moody’s, in each case maturing within one year after the
date of acquisition and


 


(9)                                  shares of any money
market mutual fund, or similar fund, in each case having excess of $500.0
million, which invests predominantly in investments of the types described in
clauses (1) through (4) above.


 


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


 


(1)                                  the sale, conveyance,
transfer, lease or other disposition (other than by way of merger or
consolidation), in one or more related transactions, of all or substantially
all of the assets of the Company and its Subsidiaries taken as a whole to any
“person” (as such term is used in Section 13(d)(3) of the Exchange Act),
other than LGP or their Related Parties;


 


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


 


(3)                                  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 LGP or
their Related Parties, becomes the “beneficial owner” (as such term is defined
in Rules 13d-3 and 13d-5 under the Exchange Act, directly or indirectly, of
more than 35% of the voting shares or economic value of Capital Stock of DFG or
the Company;


 


3

















 


(4)                                  the consummation of
any transaction (including, without limitation, any merger or consolidation)
the result of which is that the Company ceases to own 100% of the outstanding
Equity Interests of DFG; or


 


(5)                                  the first day on
which a majority of the members of the Board of Directors are not Continuing
Directors.


 


“Clearstream” means
Clearstream Banking, société anonyme, Luxembourg (or any successor thereto).


 


“Closing” means the
closing of the transactions contemplated by the Exchange Agreement.


 


“Closing Date” means
November 13, 2003.


 


“Company” means DFG
Holdings, Inc., a Delaware corporation.


 


“Company Order” means a written request or order signed in the name of
the Company by one of its Officers and delivered to the Trustee.


 


“consolidate” or “consolidated”
(including the correlative term “consolidating”)
or on a “consolidated basis”,
when used with reference to any financial term in this Indenture (but not when
used with respect to any tax return or tax liability), means the aggregate for
two or more Persons of the amounts signified by such term for all such Persons,
with inter-company items eliminated and, with respect to net income or
earnings, after eliminating the portion of net income or earnings properly
attributable to minority interests, if any, in the capital stock of any such
Person or attributable to shares of preferred stock of any such Person not
owned by any other such Person, in accordance with GAAP.


 


“Consolidated Cash Flow”
means, with respect to any Person for any period, the Consolidated Net Income
of such Person for such period plus:


 


(1)                                  an amount equal to
any extraordinary loss, to the extent that such losses were deducted in
computing such Consolidated Net Income for such period, plus


 


(2)                                  an amount equal to
any net loss realized in connection with an Asset Sale, the disposition of any
securities by such Person or any of its Subsidiaries or the extinguishment of
any Indebtedness by such Person or its Subsidiaries, to the extent such losses
were deducted in computing such Consolidated Net Income, plus


 


(3)                                  provision for taxes
based on income or profits of such Person and its Subsidiaries for such period,
to the extent that such provision for taxes was deducted in computing such
Consolidated Net Income, plus


 


(4)                                  consolidated interest
expense of such Person and its Subsidiaries for such period, whether paid or
accrued and whether or not capitalized (including, without limitation,
amortization of 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 payments (if any) pursuant to Hedging Obligations), to the
extent that any such expense was deducted in computing such Consolidated Net
Income, plus


 


4

















 


(5)                                  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 charges (excluding any such non-cash charge to the
extent that it represents an accrual of or reserve for cash charges in any
future period or amortization of a prepaid cash expense that was paid in a
prior period) of such Person and its Subsidiaries for such period to the extent
that such depreciation, amortization and other non-cash charges were deducted
in computing such Consolidated Net Income, minus


 


(6)                                  all non-cash items to
the extent that such non-cash items increased Consolidated Net Income for such
period, minus


 


(7)                                  the amount of
Earn-out Obligations paid in cash during such period (to the extent not already
reflected as an expense in Consolidated Net Income), in each case, on a
consolidated basis and determined in accordance with GAAP.


 


Notwithstanding
the foregoing, the provision for taxes based on income or profits of, and the
depreciation and amortization and other non-cash charges of, a Subsidiary of a
Person shall be added to Consolidated Net Income to compute Consolidated Cash
Flow only to the extent (and in the same proportion) that the Net Income of
such Subsidiary was included in calculating the Consolidated Net Income of such
Person.


 


“Consolidated Net Income” means, with
respect to any specified Person for any period, the aggregate of the Net Income
of such Person and its Subsidiaries for such period, on a consolidated basis,
determined in accordance with GAAP; provided, that (i) the Net Income (but not
loss) of any Person that is not a Subsidiary or that is accounted for by the
equity method of accounting shall be included only to the extent of the amount
of dividends or distributions paid in cash to the specified Person or one of
its Wholly Owned Subsidiaries, (ii) the Net Income of any Subsidiary shall be
excluded to the extent that the declaration or payment of dividends or similar
distributions by that 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 Subsidiary or its stockholders,
(iii) the Net Income of any Person acquired in a pooling of interests
transaction for any period prior to the date of such acquisition shall be
excluded and (iv) the cumulative effect of a change in accounting principles
shall be excluded.


 


“Consolidated Net Worth” means, with
respect to any Person as of any date, the sum of (i) the consolidated equity of
the common stockholders of such Person and its consolidated Subsidiaries as of
such date plus (ii) the respective amounts reported on such Person’s balance
sheet as of such date with respect to any series of preferred stock (other than
Disqualified Stock) that by its terms is not entitled to the payment of
dividends unless such dividends may be declared and paid only out of net
earnings in respect of the year of such declaration and payment, but only to
the extent of any cash received by such Person upon issuance of such preferred
stock, less (x) all write-ups (other than write-ups resulting from foreign
currency translations and write-ups of tangible assets of a going concern
business made within 12 months after the acquisition of such business)
subsequent to the date of this Indenture in the book value of any asset owned
by such Person or a consolidated Subsidiary of such Person and (y) all
unamortized debt discount and expense and unamortized deferred charges as of
such date, all of the foregoing determined in accordance with GAAP.


 


“Continuing Directors” means, as of any
date of determination, any member of the Board of Directors who (1) was a
member of such Board of Directors on the date of this Indenture or (2) was
nominated for election or elected to such Board of Directors with the approval,
recommendation or


 


5

















 


endorsement of a majority of the directors who were members of such
Board of Directors on the date of this Indenture or whose nomination or
election to the Board of Directors was previously so approved.


 


“Corporate Trust Office of the Trustee”
shall be the address of the Trustee specified in Section 11.02 hereof or
such other address as to which the Trustee may give notice to the Company.


 


“Credit Agreement” means the credit
agreement, dated as of November 13, 2003, among the Company, DFG, the
lenders named therein, Wells Fargo, as administrative agent for the lenders,
U.S. Bank, National Association, as syndication agent, and Citicorp North
America, Inc. as documentation agent providing for a revolving credit facility
in favor of DFG of up to $55.0 million (including any related notes,
Guarantees, collateral documents, instruments and agreements executed in connection
therewith, and in each case as amended, modified, restated, renewed, refunded,
replaced or refinanced from time to time).


 


“Credit
Documents” means
the Credit Agreement and all certificates, instruments, financial and other
statements and other documents and agreements made or delivered in connection
therewith and related 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.


 


“Depositary” means a clearing agency
registered under the Exchange Act that is designated to act as Depositary for
the Notes until a successor Depositary shall have been appointed and become
such pursuant to the applicable provisions of this Indenture, and, thereafter,
“Depositary” shall mean or include such successor Depositary.  The Depositary initially is DTC.


 


“DFG” means Dollar Financial Group, Inc.


 


“DFG
Senior Notes” means
DFG’s 9.75% Senior Notes due 2011, together with all notes issued in exchange,
substitution or replacement therefor, issued pursuant to the DFG Senior Notes
Indenture.


 


“DFG
Senior Notes Documents” means the DFG Senior Notes, the DFG Senior Notes Indenture, the
offering circular related thereto and all certificates, instruments, financial
and other statements and other documents and agreements made or delivered in
connection therewith and related thereto.


 


“DFG
Senior Notes Indenture” means the indenture dated as of November 13, 2003 among DFG, each
of the other guarantors (as defined therein) and U.S. Bank National
Association, as trustee (as amended, supplemented or otherwise modified from
time to time).


 


“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), or upon the happening of any
event, matures or is mandatorily redeemable, pursuant to a sinking fund
obligation or otherwise, or redeemable at the option of the holder thereof, in
whole or in part, on or prior to the date that is 91 days after the date of the
Stated Maturity of the Notes.


 


“DTC” means The Depository Trust Company, a
New York corporation.


 


“Earn-out Obligations” means contingent
payment obligations of the Company or any of its Subsidiaries incurred in
connection with the acquisition of assets or businesses, which obligations are
payable based on the performance of the assets or businesses so acquired; provided,
however,
that (i) such obligations shall be expressly subordinated to the Notes on terms
that are customary for the subordination


 


6

















 


of obligations of this type (including, without limitation, the right
to make Earn-Out Obligation payments as they become due; provided that at the time of such payment
no Default or Event of Default has occurred and is continuing, or would exist
as a result of the making of such payment), (ii) the amount of such obligations
shall not exceed 25% of the total consideration paid for such assets or
businesses and (iii) that the amount of such obligations outstanding at any
time shall be measured by the maximum amount potentially payable thereunder
without regard to performance criteria, the passage of time or other
conditions.


 


“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).


 


“Euroclear” means
Euroclear Bank S.A./N.V., as operator of the Euroclear System (or any successor
thereto).


 


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


 


“Exchange Agreement” means the exchange agreement, dated as of
November 13, 2003, among the Company and the Purchasers, as it may from
time to time be amended, supplemented or modified, relating to the Notes.


 


“Exchange Offer” as
defined in the Registration Rights Agreement.


 


“Existing Indebtedness”
means (1) Indebtedness of National Money Mart Company in an amount not to
exceed the amount committed as of the Closing Date under that certain First
Bank Overdraft Lending Agreement, dated as of March 1, 2001, between
National Money Mart Company and the Bank of Montreal; (2) Indebtedness of
Dollar Financial U.K.  Limited in an
amount not to exceed the amount committed as of the Closing Date under that
certain Multi Line Facility Agreement, dated as of January 30, 2003,
between Dollar Financial U.K.  Limited
and National Westminster Bank Plc, as amended by that certain Letter Agreement,
dated October 10, 2003, between Dollar Financial U.K.  Limited and the Royal Bank of Scotland Plc,
acting as agent for National Westminster Bank Plc; (3) Indebtedness of the
Company and Instant Cash Loans Limited in an amount not to exceed the amount
committed as of the Closing Date under that certain Participation and Servicing
Agreement, dated as of November 15, 2002, among Archbrook Holdings
International, LLC, Instant Cash Loans Limited and the Company; (4) any other
unsecured Indebtedness of the Company or any of its Subsidiaries outstanding on
the Closing Date with respect to or in connection with foreign exchange
contracts, currency swap agreements, interest rate swaps, collars or cap
agreements and similar arrangements entered into in the ordinary course of
business and designed to protect against fluctuations in currency values and
interest rates until such Indebtedness is repaid; and (5) obligations to
repurchase equity securities of the Company in the event of the death or
disability of Jeffrey Weiss pursuant to that certain Employment Agreement dated
as of November 13, 1998 by and among the Company, DFG and Jeffrey Weiss.


 


“Financing Documents”
means collectively, this Indenture, the Exchange Agreement, the Subordinated
Note Exchange Agreement, the Subordinated Note Indenture, the Registration
Rights Agreement, the Registration Rights Agreement (as defined in the
Subordinated Note Exchange Agreement), the Credit Agreement, the Stockholders
Agreement, the Notes, the Exchange Notes, the Subordinated Notes and all
certificates, instruments, financial and other statements and other documents
made or delivered in connection herewith and therewith.


 


“Fixed Charges” means,
with respect to any Person for any period, the sum of, without duplication, (i)
the consolidated interest expense of such Person and its Subsidiaries for such
period, whether paid or accrued (including, without limitation, amortization of
original issue discount, non-cash


 


7

















 


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 payments (if any)
pursuant to Hedging Obligations), (ii) the consolidated interest expense of
such Person and its Subsidiaries that was capitalized during such period, (iii)
any interest expense on Indebtedness of another Person that is Guaranteed by
such Person or one of its Subsidiaries or secured by a Lien on assets of such
Person or one of its Subsidiaries (whether or not such Guarantee or Lien is
called upon) and (iv) the product of (A) all cash dividend payments (and
non-cash dividend payments in the case of a Person that is a Subsidiary) on any
series of preferred stock of such Person plus all accrued but unpaid cash
dividends on Disqualified Stock, times (B) a fraction, the numerator of which
is one and the denominator of which is one minus the then current combined
federal, state and local statutory tax rate of such Person, 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 Person for any period, the ratio of (x) the
Consolidated Cash Flow of such Person for such period less consolidated Capital
Expenditures made by such Person during such period to (y) the Fixed Charges of
such Person for such period calculated as provided in Section 5.09.


 


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


 


“Global Note” means a
Note that evidences all or part of the Note and bears the applicable legend set
forth in Section 2.02.


 


“Governmental Authority” means (i) the government of the United
States of America or any State or other political subdivision thereof, (ii) any
government or political subdivision of any other jurisdiction in which the Company
or any Subsidiary conducts all or any part of its business, or which asserts
jurisdiction over any properties of the Company or any Subsidiary or (iii) any
entity exercising executive, legislative, judicial, regulatory or
administrative functions of or pertaining to, any such government.


 


“Guarantee” or “Guaranteed”
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, letters of credit and reimbursement
agreements in respect thereof), of all or any part of any Indebtedness.


 


“Guarantor” is defined in the DFG Senior Notes Indenture.


 


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


 


“Holder” means a Person
in whose name a Note is registered.


 


“Holdings Note Shares” is defined in the Exchange Agreement.


 


8

















 


“Indebtedness” means,
with respect to any Person, any indebtedness of such Person, whether or not
contingent, (i) in respect of borrowed money or evidenced by bonds, notes,
debentures or similar instruments or letters of credit (or reimbursement
agreements in respect thereof), (ii) representing Capital Lease Obligations,
(iii) representing the balance deferred and unpaid of the purchase price
(including any Earn-out Obligations) of any property or services, except any
such balance that constitutes a trade payable, credit on open account,
provisional credit, accrued liability, or which are being contested in good
faith, (iv) representing any Hedging Obligations, if and to the extent any of
the foregoing indebtedness (other than letters of credit and Hedging
Obligations) would appear as a liability upon a balance sheet of such Person
prepared in accordance with GAAP, as well as all indebtedness of others secured
by a Lien on any asset of such Person (whether or not such indebtedness is
assumed by such Person) and, to the extent not otherwise included, the
Guarantee by such Person of any Indebtedness of any other Person, (v)
representing reimbursement obligations of such Person with respect to letters
of credit, banker’s acceptances or similar facilities issued for the account of
such Person or (vi) representing the maximum fixed redemption or repurchase
price of Disqualified Stock of such Person at the time of determination plus
accrued but unpaid dividends.


 


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


 


“Initial Regulation S Notes”
means the Notes sold by the Purchasers in an initial offering in reliance on
Regulation S.


 


“Investments” means, with
respect to any Person, all investments by such Person in other Persons
(including Affiliates) in the form of direct or indirect loans (including
Guarantees of Indebtedness or other obligations), advances or capital
contributions (excluding (i) commission, travel and similar advances to
officers and employees, (ii) extensions of trade credit and (iii) any loans to
customers, in each case made on commercially reasonable terms and  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; provided,
however,
that an acquisition of assets, Equity Interests or other securities by the
Company for consideration consisting of common equity securities of the Company
shall not be deemed to be an Investment. 
If the Company or any Subsidiary of the Company sells or otherwise
disposes of any Equity Interests of any direct or indirect 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 shall be deemed to
have made an Investment on the date of any such sale or disposition equal to
the fair market value of the Equity Interests of such Subsidiary not sold or
disposed of.


 


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


 


“LGP” means Leonard Green
& Partners, L.P. and any affiliated investment fund managed by it.


 


“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 or agreement to give any financing statement under the Uniform Commercial
Code (or equivalent statutes) of any jurisdiction).


 


9

















 


“Liquidated Damages”
means Special Interest, as such term is defined in Section 2(c) of the
Registration Rights Agreement, then accrued and unpaid.


 


“Management
Services Agreement” shall
mean that certain Management Services Agreement, dated December 18, 1998,
as amended, among the Company, DFG, and LGP.


 


“Material
Adverse Effect” means
a material adverse effect on (i) the business, operations, affairs, financial
condition, assets, property or prospects of the Company and its Subsidiaries
taken as a whole, (ii) the ability of the Company or any Subsidiary to perform
any of its material obligations under any of the Transaction Documents or (iii)
the validity or enforceability of any Transaction Document that is material to
the Holders.


 


“Net Income” means, with
respect to any 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 (but not loss), together with any
related provision for taxes on such gain (but not loss), realized in connection
with (A) any Asset Sale (including, without limitation, dispositions pursuant
to sale and leaseback transactions) or (B) the disposition of any securities by
such Person or any of its Subsidiaries or the extinguishment of any
Indebtedness of such Person or any of its Subsidiaries, (ii) any extraordinary
or nonrecurring gain (but not loss), together with any related provision for
taxes on such extraordinary or nonrecurring gain (but not loss) and (iii) any
non-cash compensation expense of such Person attributable to the exercise of
options to acquire Capital Stock of the Company by any officers, directors or
employees of the Company or any of its Subsidiaries.


 


“Net Proceeds” means the
aggregate cash proceeds received by the Company or any of its 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), net of the direct costs relating to such Asset Sale
(including, without limitation, legal, accounting and investment banking fees,
and sales commissions) and any relocation expenses incurred as a result
thereof, taxes paid or payable as a result thereof (after taking into account
any available tax credits or deductions and any tax sharing arrangements),
amounts required to be applied to the repayment of Indebtedness (other than
revolving credit Indebtedness under the Credit Agreement) secured by a Lien on
the asset or assets that were the subject of such Asset Sale and any reserve
for adjustment in respect of the sale price of such asset or assets established
in accordance with GAAP.


 


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


 


“Obligations” means any
principal, premium, interest, Liquidated Damages and other liabilities payable
by the Company under or in respect of this Indenture, the Exchange Agreement or
the Notes.


 


“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 by the Chairman of the Board, the Chief Executive
Officer, the President or any Vice President, and by the Director of Finance,
the Treasurer, an Assistant Treasurer, the Secretary or an Assistant Secretary,
of the Company and delivered to the Trustee.


 


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


 


10

















 


“Permits”
means all
licenses, permits, certificates of need, approvals and authorizations from all
Governmental Authorities required to lawfully conduct a business as presently
conducted.


 


“Permitted Investments”
means (i) any Investment in the Company, DFG (as long as it is a Wholly Owned
Subsidiary of the Company) or a Wholly Owned Subsidiary of the Company and that
is engaged in the same or a similar line of business as the Company and its
Subsidiaries were engaged in on the date of this Indenture, (ii) any Investment
in (v) cash, (w) Cash Equivalents, (x) the Notes, (y) the Subordinated Notes or
(z) the DFG Senior Notes outstanding (in the case of this clause (z)) as of the
date of this Indenture, (iii) any Investment by the Company or any Subsidiary
of the Company in a Person, if as a result of such Investment (A) such Person
becomes a Wholly Owned Subsidiary of the Company that is engaged in the same or
a similar line of business as the Company and its Subsidiaries were engaged in
on the date of this Indenture 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 Wholly Owned Subsidiary of
the Company (with the Company or such Wholly Owned Subsidiary being a surviving
entity) and that is engaged in the same or a similar line of business as the
Company and its Subsidiaries were engaged in on the date of this Indenture,
(iv) any Restricted 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 the provisions of Section 5.10 hereof, (v) other Investments in
any Person (other than a Subsidiary of the Company) having an aggregate fair
market value (measured on the date each such Investment was made and without
giving effect to subsequent changes in value), when taken together with all
other Investments made pursuant to this clause (v) that are at the time outstanding,
not to exceed $3.0 million, (vi) any advances to employees of the Company and
its Subsidiaries in the ordinary course of business, (vii) any Investments
received in settlement of bona fide disputes or as distributions in bankruptcy,
insolvency or similar proceedings and (viii) any Investment resulting from the
sale or other disposition, through a public equity or income trust offering, of
Equity Interests of a Canadian or a U.K. Subsidiary of DFG (a “Disposed Entity”) solely by reason of DFG
retaining a portion of the Equity Interests of such Disposed Entity; provided, that after giving effect to any
such sale or disposition, (1) no Default or Event of Default shall have
occurred or be continuing, (2) the retained Equity Interests in the Disposed
Entity are entitled to the same pro rata distributions as, and are not
subordinated to, other Equity Interests in the Disposed Entity and (3) any Net
Proceeds from such sale or disposition are applied in accordance with the
provisions of Section 5.10 hereof (without regard to
Section 5.10(b)(ii)).


 


“Permitted Liens” means
(i) Liens securing Indebtedness (A) under the Credit Agreement and (B) under
the DFG Senior Notes, in each case, that was permitted by the terms of this
Indenture to be incurred, (ii) Liens in favor of the Company, (iii) Liens on
property of a Person existing at the time such Person is merged into or
consolidated with the Company or any Subsidiary of the Company; provided,
however,
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, (iv) Liens on property existing
at the time of acquisition thereof by the Company or any Subsidiary of the Company;
provided,
however,
that such Liens were in existence prior to the contemplation of such
acquisition, (v) 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, (vi) Liens securing Indebtedness
(including Capital Lease Obligations) permitted by clause (v) of
Section 5.09(b) hereof covering only the assets acquired with such
Indebtedness and directly related assets such as proceeds (including insurance
proceeds), products, replacements, substitutions and accessions thereto, (vii)
Liens existing on the date of this Indenture and replacement Liens that do not
encumber additional assets, unless such encumbrance is otherwise permitted;
(viii) 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, however,
that any reserve or other appropriate provision as shall be required in
conformity with GAAP shall have been made therefor, (ix) Liens incurred in the
ordinary course of business of the Company or any Subsidiary of the


 


11

















 


Company with respect to obligations that do not exceed
$5.0 million at any one time outstanding and that (A) are not incurred in
connection with the borrowing of money or the obtaining of advances or credit
(other than trade credit in the ordinary course of business) and (B) do not in
the aggregate materially detract from the value of the property or materially
impair the use thereof in the operation of business by the Company or such
Subsidiary, (x) Liens securing Permitted Refinancing Indebtedness; provided,
however,
that the Company was permitted to incur Liens with respect to the Indebtedness
so refinanced, (xi) statutory and common law Liens of carriers, warehousemen,
mechanics, suppliers, materialmen, repairmen or other similar Liens arising in
the ordinary course of business with respect to amounts 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 shall be required in conformity with GAAP shall
have been made therefor, (xii) Liens arising from filings of Uniform Commercial
Code financing statements or similar documents regarding leases or otherwise
for precautionary purposes relating to arrangements not constituting
Indebtedness, (xiii) Liens on assets of a Receivables Subsidiary arising in
connection with a Qualified Receivables Transaction and (xiv) Liens securing
compensation, reimbursement and indemnification obligations of the Company or
any of its Subsidiaries in favor of the Trustee under this Indenture, and in
favor of trustees or comparable representatives under other indentures,
agreements or instruments governing Indebtedness permitted to be incurred by
Section 5.09.


 


“Permitted Refinancing Indebtedness”
means any Indebtedness of the Company or any of its Subsidiaries issued in
exchange for, or the net proceeds of which are used to extend, refinance,
renew, replace, defease or refund other Indebtedness of the Company or any of
its Subsidiaries (other than the Indebtedness under the Credit Agreement and
the DFG Senior Notes); provided, however, that (i) the
principal amount (or accreted value, if applicable) of such Permitted
Refinancing Indebtedness does not exceed the principal amount plus accrued interest
(or accreted value, if applicable) of the Indebtedness so extended, refinanced,
renewed, replaced, defeased or refunded (plus the amount of reasonable expenses
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 extended, refinanced, renewed,
replaced, defeased or refunded, (iii) if the Indebtedness being extended,
refinanced, renewed, replaced, defeased or refunded 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
extended, refinanced, renewed, replaced, defeased or refunded, (iv) such
Indebtedness is incurred either by the Company or by the Subsidiary which is
the obligor on the Indebtedness being extended, refinanced, renewed, replaced,
defeased or refunded and (v) if the Indebtedness being extended,
refinanced, renewed, replaced, defeased or refunded was incurred in reliance
upon clause (vi) or (vii) of Section 5.09(b), such Indebtedness also
meets the requirements of such clause.


 


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


 


“Purchasers” means the
Purchasers named in Schedule A to the Exchange Agreement.


 


“Put Option” is defined in the Exchange Agreement.


 


“Qualified Receivables Transaction”
means any transaction or series of transactions entered into by DFG or any of
its Subsidiaries pursuant to which DFG or any of its Subsidiaries sells,
conveys or otherwise transfers to (i) a Receivables Subsidiary (in the case of
a transfer by DFG or any of its


 


12

















 


Subsidiaries) or (ii) any other Person (in the case of
a transfer by a Receivables Subsidiary), or grants a security interest in, any
accounts receivable (whether now existing or arising in the future) of DFG or
any of its Subsidiaries and any related assets, including all collateral
securing such accounts receivable, all contracts and Guarantees or other
obligations in respect of such accounts receivable, proceeds of such accounts
receivable and other assets which are customarily transferred or in respect of
which security interests are customarily granted in connection with asset
securitization transactions involving accounts receivable.


 


“Receivables Subsidiary”
means a Wholly Owned Subsidiary of DFG which engages in no activities other
than in connection with the financing of accounts receivable and which is
designated by the Board of Directors (as provided below) as a Receivables
Subsidiary:


 


(1)  no
portion of the Indebtedness or any other obligations (contingent or otherwise)
of which:


 


(a)                                  is
Guaranteed by the Company or any of its other Subsidiaries (excluding
guarantees of obligations (other than the principal of, and interest on,
Indebtedness) pursuant to representations, warranties, covenants and
indemnities entered into in the ordinary course of business in connection with
a Qualified Receivables Transaction),


 


(b)                                 is
recourse to or obligates the Company or any of its other Subsidiaries in any
way other than pursuant to representations, warranties, covenants and
indemnities entered into in connection with a Qualified Receivables Transaction
or


 


(c)                                  subjects
any property or asset of the Company or any of its other Subsidiaries, directly
or indirectly, contingently or otherwise, to the satisfaction thereof, other
than pursuant to representations, warranties, covenants and indemnities entered
into in the ordinary course of business in connection with a Qualified
Receivables Transaction;


 


(2)  with
which neither the Company nor any of its other Subsidiaries has any material
contract, agreement or understanding other than (a) sales of accounts
receivable and related assets to such Subsidiary and other transactions within
the customary parameters of asset securitization transactions involving
accounts receivable, (b) transactions on terms no less favorable to the Company
or such Subsidiary than those that might be obtained at the time from Persons
who are not Affiliates of the Company and (c) customary transaction costs, fees
and expenses incurred in connection with asset securitization transactions
involving accounts receivable and fees payable in the ordinary course of
business in connection with servicing accounts receivable; and


 


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


 


Any such designation by the Board of Directors of the Company will be
evidenced to the Trustee by filing with the Trustee a certified copy of the
resolution of the Board of Directors giving effect to such designation and an
Officer’s Certificate certifying that such designation complied with the foregoing
conditions.


 


“Registered Notes” means
the Exchange Senior Notes or Senior Notes sold or otherwise disposed of
pursuant to an effective registration statement under the Securities Act,
together with their respective Successor Notes.


 


13

















 


“Registration Rights Agreement”
means the Exchange and Registration Rights Agreement, dated as of the date of
this Indenture, by and among the Company and the other parties named on the
signature pages thereof, as such agreement may be amended, supplemented or
modified from time to time.


 


“Regulation S” means
Regulation S under the Securities Act (or any successor provision), as it may
be amended from time to time.


 


“Regulation S Certificate”
means a certificate substantially in the form set forth in Exhibit A.


 


“Regulation S Global Note”
has the meaning specified in Section 2.01.


 


“Regulation S Legend”
means a legend substantially in the form of the legend required in the form of
Note set forth in Section 2.02 to be placed upon a Regulation S Global
Note.


 


“Regulation S Note”  means all Notes required pursuant to
Section 2.08(f) to bear a Regulation S Legend.  Such term includes the Regulation S Global Note.


 


“Related
Party” with respect to LGP means (i) any Subsidiary of LGP or any
general partner of LGP or (ii) any investment fund or investment
partnership managed by LGP or any Affiliate of LGP.


 


“Responsible Officer”
when used with respect to the Trustee, means any officer or employee within the
Corporate Trust Administration of the Trustee (or any successor group of the
Trustee) or any other officer of the Trustee customarily performing functions
similar to those 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.


 


“Restricted Global Note”
has the meaning specified in Section 2.01.


 


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


 


“Restricted Notes” means
all Notes required pursuant to Section 2.08(f) to bear a Restricted Notes
Legend.  Such term includes the
Restricted Global Note.


 


“Restricted Notes Certificate”
means a certificate substantially in the form set forth in Exhibit B.


 


“Restricted Notes Legend”
means a legend substantially in the form of the legend required in the form of
Note set forth in Section 2.02 to be placed upon a Restricted Note.


 


“Restricted Period” means
the period of 41 consecutive days beginning on and including the later of (i)
the day on which Notes were first offered to persons other than distributors
(as defined in Regulation S) in reliance on Regulation S and (ii) the day on
which the closing of the offering of Notes pursuant to the Exchange Agreement
occurs.


 


“Rule 144A” means Rule
144A under the Securities Act (or any successor provision), as it may be
amended from time to time.


 


“Rule 144A Notes” means
the Notes purchased by the Purchasers from the Company pursuant to the Exchange
Agreement other than the Initial Regulation S Notes.


 


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


 


14

















 


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


 


“Securities Act Legend”
means a Restricted Notes Legend or a Regulation S Legend.


 


“Significant Subsidiary”
means any Subsidiary that would be a “significant subsidiary,” as defined under
Rule 1-02 of Regulation S-X promulgated by the SEC as such regulation is in
effect on the date of this Indenture.


 


“Stated Maturity” when
used with respect to any Note or any installment of interest thereon, means the
date specified in this Indenture or such Note as the fixed date on which the
principal of such Note or such installment of interest is due and payable.


 


“Stockholders Agreement” as defined in the Exchange Agreement.


 


“Subordinated Indebtedness” means (i) Indebtedness of the Company or
any of its Subsidiaries under any Earn-Out Obligations, (ii) Indebtedness of
the Company under the Subordinated Notes and (iii) other Indebtedness of the
Company or any of its Subsidiaries expressly subordinated in right of payment
to the Notes pursuant to applicable documentation in the case of such
Indebtedness under this clause (iii), containing maturities, amortization
schedules, covenants, defaults, remedies, subordination provisions and other
material terms in form and substance satisfactory to the Holders of at least a
majority in aggregate principal amount of the Notes then outstanding.


 


“Subordinated Note Documents” means the Subordinated Notes, the
Subordinated Note Exchange Agreement, the Subordinated Note Indenture, the
exchange and registration rights agreement related to the Subordinated Notes,
the Stockholders Agreement and all certificates, instruments, financial and
other statements and other documents and agreements made or delivered in
connection therewith and related thereto.


 


“Subordinated
Note Exchange Agreement” is defined in the Exchange Agreement.


 


“Subordinated Note Indenture” means the indenture dated as of
November 13, 2003 between the Company and U.S. Bank National Association,
as trustee (as amended, supplemented or otherwise modified from time to time),
pursuant to which the Subordinated Notes are issued.


 


“Subordinated
Notes” means the  13.95%
Senior Subordinated Notes due 2012, together with all notes issued in exchange,
substitution or replacement therefor, issued by the Company in the original
aggregate principal amount on the date of this Indenture of $49,351,422 (plus
any additional 13.95% Senior Subordinated Notes due 2012 issued in payment of
interest thereunder), issued pursuant to the Subordinated Note Indenture.


 


“Subscription Shares” is defined in the Exchange Agreement.


 


“Subsidiary” means, with
respect to any Person, (1) any corporation, association or other business
entity 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 thereof is at the time owned or
controlled, directly or indirectly, by such Person or one or more Subsidiaries
of such Person (or a combination thereof) and (2) any partnership (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 such
Person or one or more Subsidiaries of such Person (or any combination thereof).


 


15

















 


“Successor Notes” of any
particular Note means every Note issued after, and evidencing all or a portion
of the same debt as that evidenced by, such particular Note; and, for the
purposes of this definition, any Note authenticated and delivered under Section 2.09
in exchange for or in lieu of a mutilated, destroyed, lost or stolen Note shall
be deemed to evidence the same debt as the mutilated, destroyed, lost or stolen
Note.


 


“Tax
Returns” means
all reports and returns required to be filed on or before the Closing Date with
respect to the Taxes of the Company and the Tax Subsidiaries including, without
limitation, consolidated federal income tax returns of the Company and the Tax
Subsidiaries.


 


“Tax Subsidiaries” means
any Subsidiary of the Company of which the Company owns, directly or
indirectly, 80% or more of the equity interest therein for U.S. federal income
tax purposes.


 


“Taxes” means all
federal, state, local or foreign income, gross receipts, windfall profits,
severance, property, production, sales, use, license, excise, franchise,
employment, withholding or similar taxes imposed on the income, properties or
operations of the Company and the Tax Subsidiaries, together with any interest,
additions or penalties with respect thereto and any interest in respect of such
additions or penalties.


 


“TIA” means the Trust
Indenture Act of 1939 (15 U.S.C. 
§§ 77aaa-77bbbb), as in force at the date as of which this
instrument was executed, except as provided in Section 10.03; provided,
however,  that in the
event that the Trust Indenture Act of 1939 is amended after such date, “TIA”
means, to the extent required by any such amendment, the Trust Indenture Act of
1939 as so amended.


 


“Transaction Documents”
means, collectively, the Financing Documents, the Credit Documents, the DFG
Senior Note Documents and the Subordinated Note Documents.


 


“Transactions” means the
transactions provided for in, or contemplated by, the Transaction Documents.


 


“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 (or any successor thereto).


 


“Unrestricted Notes Certificate”
means a certificate substantially in the form set forth in Exhibit C.


 


“U.S.  Government Obligation” means:


 


(1)                                  any security which is
a direct obligation of the United States of America the payment of which the
full faith and credit of the United States of America is pledged or an
obligation of a Person controlled or supervised by and acting as an agency or
instrumentality of the United States of America the payment of which is
unconditionally guaranteed as a full faith and credit obligation of the United
States of America, which, in either case, is not callable or redeemable at the
option of the issuer thereof; and


 


(2)                                  any depository
receipt issued by a bank (as defined in the Securities Act) as custodian with
respect to any U.S.  Government
Obligation and held by such bank for the account of the holder of such
depository receipt, or with respect to any specific payment of principal of or
interest on any U.S.  Government
Obligation which is so specified and held; provided
that (except as required by law) such custodian is not authorized to
make any deduction from the amount payable to the holder of such


 


16

















 


depository receipt from any amount received
by the custodian in respect of the U.S. 
Government Obligation or the specific payment of principal or interest
evidenced by such depository receipt.


 


“U.S.  Person” has the meaning specified in Regulation S.


 


“Weighted Average Life to Maturity”
means, when applied to any Indebtedness at any date, the number of years
obtained by dividing:


 


(1)                                  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 thereof, 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


 


(2)                                  the then outstanding
principal amount of such Indebtedness.


 


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


 


SECTION 1.02  OTHER DEFINITIONS.


 


	
  Term

  	
   

  	
  Defined in Section

  
	
  “Affiliate Transaction”

  	
   

  	
  5.11

  
	
  “Asset Sale”

  	
   

  	
  5.10

  
	
  “Change of Control Offer”

  	
   

  	
  5.14

  
	
  “Change of Control Payment”

  	
   

  	
  5.14

  
	
  “Change of Control Payment Date”

  	
   

  	
  5.14

  
	
  “Company”

  	
   

  	
  Preamble

  
	
  “Covenant Defeasance”

  	
   

  	
  9.03

  
	
  “Current Accretion Amount”

  	
   

  	
  2.03(5)

  
	
  “Custodian”

  	
   

  	
  7.01

  
	
  “Default Amount”

  	
   

  	
  7.02

  
	
  “Default Interest”

  	
   

  	
  2.03(1)

  
	
  “Event of Default”

  	
   

  	
  7.01

  
	
  “Excess Proceeds”

  	
   

  	
  5.10

  
	
  “Exchange Senior Notes”

  	
   

  	
  Preamble

  
	
  “incur”

  	
   

  	
  5.09

  
	
  “Incurrence Date”

  	
   

  	
  5.09

  
	
  “Interest Accrual Date”

  	
   

  	
  2.03

  
	
  “Interest Payment Date”

  	
   

  	
  2.03

  
	
  “Legal Defeasance”

  	
   

  	
  9.02

  
	
  “Notes Register”

  	
   

  	
  2.05

  
	
  “Notice of Default”

  	
   

  	
  7.01

  
	
  “Offer Amount”

  	
   

  	
  3.10

  
	
  “Offer Period”

  	
   

  	
  3.10

  
	
  “Paying Agent”

  	
   

  	
  2.05

  
	
  “Payment Default”

  	
   

  	
  7.01

  
	
  “PIK Notes”

  	
   

  	
  2.03(1)

  
	
  “PIK Payment”

  	
   

  	
  2.03(1)

  
	
  “Purchase Date”

  	
   

  	
  3.10

  



 


17

















 


	
  “Registrar”

  	
   

  	
  2.05

  
	
  “Restricted Payments”

  	
   

  	
  5.07

  
	
  “Senior Notes”

  	
   

  	
  Preamble

  
	
  “Special Mandatory Redemption”

  	
   

  	
  2.03(7)

  
	
  “Successor Company”

  	
   

  	
  6.01

  
	
  “Trustee”

  	
   

  	
  Preamble

  



 


SECTION 1.03  INCORPORATION BY
REFERENCE OF TRUST INDENTURE ACT.


 


Whenever this Indenture refers to a provision of the TIA, the provision
is incorporated by reference in and made a part of this Indenture.  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:


 


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


 


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


 


(3)                                  “or” is not
exclusive;


 


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


 


(5)                                  provisions apply to
successive events and transactions;


 


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


 


(7)                                  references to any
statute, law or regulation shall be deemed to refer to the same as from time to
time amended and in effect and to any successor statute, law or regulation; and


 


(8)                                  whenever any
provision of this Indenture or any Note refers to payments of or on “the
principal of (or Default Amount in respect thereof)” or words to a similar
effect, such reference shall be deemed to refer to (i) in the case of any
redemption or repurchase of the Notes, the Current Accretion Amount, (ii) in
the case of any declaration of the Notes to be due and payable (other than by a
redemption or repurchase), the Default Amount of the Notes and (iii) in any
other case, the principal amount of the Notes.


 


ARTICLE 2

THE NOTES


 


SECTION 2.01  FORMS OF NOTES.


 


The Notes and the Trustee’s certificates of authentication shall be in
substantially the form set forth in this Article, with such appropriate insertions,
omissions, substitutions and other variations as are required or permitted by
this Indenture, and may have such letters, numbers or other marks of
identification and such legends or endorsements placed thereon as may be
required to comply with


 


18

















 


applicable law or the rules of any securities exchange
or as may, consistent herewith, be determined by the officers executing such
Notes, as evidenced by their execution thereof.


 


The certificated Notes shall be printed, lithographed or produced by
any combination of these methods or may be produced in any other manner
permitted by the rules of any securities exchange on which the Notes may be
listed, all as determined by the officers executing such Notes, as evidenced by
their execution of such Notes.


 


Each Note shall be dated the date of its authentication.  The Notes shall be issued in minimum
denominations of $1,000, except that PIK Notes may be issued in smaller
denominations.  The terms and provisions
contained in the Notes shall constitute, and are hereby expressly made, a part
of this Indenture and the Company and the Trustee, by their execution and
delivery of this Indenture, expressly agree to such terms and provisions and to
be bound thereby.


 


Upon their original issuance, Rule 144A Notes shall be issued in the
form of one or more Global Notes registered in the name of DTC, as Depositary,
or its nominee and deposited with the Trustee, as  custodian for DTC, for credit by DTC to the respective
accounts of beneficial owners of the Notes represented thereby (or such other
accounts as they may direct).  Such
Global Notes, together with their Successor Notes which are Global Notes other
than the Regulation S Global Note, are collectively herein called the “Restricted Global Note.” Upon their
original issuance, Initial Regulation S Notes shall be issued in the form of
one or more Global Notes registered in the name of DTC, as Depositary, or its
nominee and deposited with the Trustee, as custodian for DTC, for credit by DTC
to the respective accounts of beneficial owners of the Notes represented
thereby (or such other accounts as they may direct); provided, that upon such deposit all such Notes shall be
credited to or through accounts maintained at DTC by or on behalf of Euroclear
or Clearstream.  Such Global Notes,
together with their Successor Notes which are Global Notes other than the
Restricted Global Note, are collectively herein called the “Regulation S Global Note.”


 


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 amount of outstanding Notes from time to time endorsed thereon and
that the aggregate amount of outstanding Notes represented thereby may from
time to time be reduced or increased, as appropriate, to reflect issuances of
PIK Notes, exchanges and redemptions. 
Any endorsement of a Global Note to reflect the amount of any increase
or decrease in the amount of outstanding Notes represented thereby shall be
made by the Trustee or the Note Custodian, at the direction of the Trustee, in
accordance with instructions given by the Holder thereof as required by
Section 2.08 hereof.


 


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 (or, in
each case, the equivalent documents setting forth the procedures of Euroclear
and Clearstream) shall be applicable to the transfer of beneficial interests in
the Regulation S Global Note that are held by the Agent Members through
Euroclear or Clearstream.


 


Except as set forth in Section 2.08 hereof, the Global Notes may
not be transferred as a whole except 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.


 


Agent Members shall have no rights either under this Indenture with
respect to any Global Note held on their behalf by the Depositary or by the
Trustee as custodian for the Depositary or under such Global Note, and the
Depositary may be treated by the Company, the Trustee and any agent of the


 


19

















 


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


 


SECTION 2.02  FORM OF FACE OF NOTE


 


[If the Note is a Global Note, then insert—THIS NOTE IS A GLOBAL NOTE WITHIN THE
MEANING OF THE INDENTURE HEREINAFTER REFERRED TO AND IS REGISTERED IN THE NAME
OF A DEPOSITARY OR A NOMINEE THEREOF. 
THIS NOTE MAY NOT BE EXCHANGED IN WHOLE OR IN PART FOR A NOTE
REGISTERED, AND NO TRANSFER OF THIS NOTE IN WHOLE OR IN PART MAY BE
REGISTERED, IN THE NAME OF ANY PERSON OTHER THAN SUCH DEPOSITARY OR A NOMINEE
THEREOF, EXCEPT IN THE LIMITED CIRCUMSTANCES DESCRIBED IN THE INDENTURE.]


 


[If the Note is a Global Note and DTC is to be the
Depositary therefor, then insert—  UNLESS
THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY
TRUST COMPANY, A NEW YORK CORPORATION (“DTC”), TO THE ISSUER OR ITS AGENT FOR
REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS
REGISTERED IN THE NAME OF CEDE & CO. 
OR IN SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF
DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. 
OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE
OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR
TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE &
CO., HAS AN INTEREST HEREIN.]


 


[If the Note is a Restricted Note, then insert—THIS NOTE (OR ITS PREDECESSOR) WAS
ORIGINALLY ISSUED IN A TRANSACTION EXEMPT FROM REGISTRATION UNDER THE UNITED
STATES SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), AND THIS NOTE
MAY NOT BE OFFERED, SOLD, PLEDGED OR OTHERWISE TRANSFERRED IN THE ABSENCE
OF SUCH REGISTRATION OR AN APPLICABLE EXEMPTION THEREFROM.  EACH PURCHASER OF THIS NOTE IS HEREBY
NOTIFIED THAT THE SELLER OF THIS NOTE MAY BE RELYING ON THE EXEMPTION FROM
THE PROVISIONS OF SECTION 5 OF THE SECURITIES ACT PROVIDED BY RULE 144A
THEREUNDER.


 


THE HOLDER OF THIS NOTE AGREES FOR THE BENEFIT OF THE COMPANY THAT (A)
THIS NOTE MAY BE OFFERED, RESOLD, PLEDGED OR OTHERWISE TRANSFERRED ONLY
(I) IN THE UNITED STATES TO A PERSON WHOM THE SELLER REASONABLY BELIEVES IS A
QUALIFIED INSTITUTIONAL BUYER (AS DEFINED IN RULE 144A UNDER THE SECURITIES
ACT) IN A TRANSACTION MEETING THE REQUIREMENTS OF RULE 144A, (II) OUTSIDE THE
UNITED STATES IN AN OFFSHORE TRANSACTION IN ACCORDANCE WITH RULE 904 UNDER THE
SECURITIES ACT, (III) PURSUANT TO AN EXEMPTION FROM REGISTRATION UNDER THE
SECURITIES ACT PROVIDED BY RULE 144 THEREUNDER (IF AVAILABLE) OR (IV) PURSUANT
TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT, IN EACH OF
CASES (I) THROUGH (IV) IN ACCORDANCE WITH ANY APPLICABLE SECURITIES LAWS OF ANY
STATE OF THE UNITED STATES, AND (B) THE HOLDER WILL, AND EACH SUBSEQUENT HOLDER
IS REQUIRED TO, NOTIFY ANY PURCHASER OF THIS NOTE FROM IT OF THE RESALE
RESTRICTIONS REFERRED TO IN (A) ABOVE.]


 


20

















 


[If the Note is a Regulation S Note, then insert—THIS NOTE (OR ITS PREDECESSOR) WAS
ORIGINALLY ISSUED IN A TRANSACTION ORIGINALLY EXEMPT FROM REGISTRATION UNDER
THE UNITED STATES SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”),
AND MAY NOT BE TRANSFERRED IN THE UNITED STATES OR TO, OR FOR THE ACCOUNT
OR BENEFIT OF, ANY U.S.  PERSON, EXCEPT
PURSUANT TO AN AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE
SECURITIES ACT AND ALL APPLICABLE STATE SECURITIES LAWS.  TERMS USED ABOVE HAVE THE MEANINGS GIVEN TO
THEM IN REGULATION S UNDER THE SECURITIES ACT.]


 


The following information is provided pursuant to
Treas. Reg. Section 1.1275-3:


 


This debt instrument is issued at original issue
discount.


 


Gerald McAllister (610) 640-5903, as representative of
the Company, will make available on request to holder(s) of this debt
instrument the following information: 
issue price, amount of original issue discount, issue date and yield to
maturity.


 


16% SENIOR NOTES DUE 2012


 


	
   

  	
  CUSIP

  	
   

  
	
  No.

  	
   

  	
   

  
	
   

  	
  $

  	
   

  



 


DFG HOLDINGS, INC.


promises to pay to 


 


or registered assigns, 


 


the principal sum of 


 


                  
Dollars on May 15, 2012.


 


Interest Payment Dates: May 15 and
November 15 




Record Dates: May 1 and November 1


 


21

















 


IN WITNESS WHEREOF, DFG HOLDINGS, INC. has
caused this instrument to be signed manually or by facsimile by its duly authorized
officer.


 


	
  Dated: 

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  DFG HOLDINGS, INC.

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
   

  	
  Title:

  
	
   

  	
   

  	
   

  	
   

  
	
  This is one of the Notes

  referred to in the

  within-mentioned Indenture:

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  U.S. BANK NATIONAL ASSOCIATION

  	
   

  	
   

  	
   

  
	
  as Trustee

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  By:

  	
   

  	
   

  	
   

  	
   

  
								



 


22

















 


SECTION 2.03  FORM OF REVERSE OF NOTE


 


(1)                                  INTEREST. 
DFG Holdings, Inc., a Delaware corporation (the “Company”), promises to pay interest on the
principal amount of this Note at 16% per annum from
             
until maturity and shall pay the Liquidated Damages payable pursuant to
Section 2(c) of the Registration Rights Agreement referred to below.  The Company will pay interest and Liquidated
Damages semi-annually in arrears on May 15 and November 15 of each
year, 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
             .  On any Interest Payment Date on or prior to
November 15, 2008 (each, an “Interest
Accrual Date”), the Company, at its option, shall have the right to
pay all or a portion of interest payable on this Note for the period ended on
such Interest Accrual Date through the issuance of additional 16% Senior Notes
Due 2012 (the “PIK Notes”), each
dated the date of the issuance thereof, with a principal amount equal to the
amount of interest so paid (“PIK Payment”).  If a default in the payment when due of
interest on, principal of, or premium, if any, on this Note or if an Event of
Default has occurred and is continuing, then in each case the principal amount
of this Note will accrue interest (“Default Interest”) at 2% per annum plus
the stated interest rate on this Note until such time as no such default or
such Event of Default shall be continuing (to the extent that the payment of
such interest shall be legally enforceable). 
Default Interest on principal shall be payable in cash on demand.  Any Default Interest on principal that is
not paid on demand shall bear interest (which shall also be payable in cash on
demand) at 2% per annum plus the stated interest rate on this Note (to the
extent that the payment of such interest is legally enforceable), from the date
of such demand until the amount so demanded is paid or made available for
payment.  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 Liquidated Damages, if any, to the Persons who are registered
Holders of Notes at the close of business on May 1 or November 1 next
preceding the Interest Payment Date, even if such Notes are cancelled after
such record date and on or before such Interest Payment Date, except as
provided in Section 2.14 of the Indenture with respect to defaulted
interest.  The Notes will be payable as to
principal, premium, if any, interest (except interest to be paid by PIK
Payments) and Liquidated Damages, if any, at the office or agency of the
Company maintained for such purpose within or without the City and State of New
York, or, at the option of the Company, by check mailed to the Holders at their
addresses set forth in the register of Holders; provided that all payments with
respect to Global Notes the Holders of which have given wire transfer
instructions to the Company will be required to be made by wire transfer of
immediately available funds to the accounts specified by the Holders
thereof.  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.  If on any Interest Accrual Date the Company has elected to make a
PIK Payment, the applicable installment of interest shall be considered paid on
the date it is due if the Trustee or Paying Agent holds on that date any
combination of money in immediately available funds and fully issued and
authenticated PIK Notes in a combined aggregate amount equal to the amount of
the installment of interest that is due and payable on such Interest Payment
Date.  The Company shall pay all
Liquidated Damages, if any, in the manner, on the dates and in the amounts set
forth in the Registration Rights Agreement.


 


(3)                                  PAYING AGENT AND REGISTRAR.   Initially,
U.S. Bank National Association, the Trustee under the Indenture, will act as
Paying Agent and Registrar.  The Company
may change any Paying


 


23

















 


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


 


(4)                                  INDENTURE.  This
Note is one of a duly authorized issue of Notes of the Company designated as
16% Senior Notes due 2012 limited (except as provided in the Indenture referred
to below) in aggregate principal amount to the sum of (x) $49,351,422 and (y)
the aggregate principal amount of PIK Notes issued as PIK Payments after the
Closing Date and prior to the date of calculation.  The Company issued the Notes under an Indenture dated as of
November 13, 2003 (the “Indenture”)
between the Company 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.C. 
§§ 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. 
All capitalized terms which are defined in the Indenture and used in
this Note without other definition shall have the meanings assigned to them in
the Indenture.


 


(5)                                  OPTIONAL REDEMPTION. 
The Notes will be subject to redemption at the option of the
Company, in whole or in part, upon not less than 30 nor more than 60 days’
prior written notice, at the redemption prices (expressed as percentages of the
sum (the “Current Accretion Amount”)
of (x) the principal amount being redeemed plus (y) all accrued and unpaid
interest to the redemption date that is permitted to be paid through the
issuance of the PIK Notes on the next succeeding Interest Payment Date (such
principal amount and accrued interest to be computed for actual days elapsed to
the redemption date)), if redeemed during the twelve-month period beginning
January 1 of the years indicated below:


 


	
  YEAR

  	
   

  	
  PERCENTAGE

  	
   

  
	
  From the
  Closing Date through December 31, 2004

  	
   

  	
  112.500

  	
  %

  
	
  2005

  	
   

  	
  110.000

  	
  %

  
	
  2006

  	
   

  	
  107.500

  	
  %

  
	
  2007

  	
   

  	
  105.000

  	
  %

  
	
  2008

  	
   

  	
  102.500

  	
  %

  
	
  2009 and
  thereafter

  	
   

  	
  100.000

  	
  %

  



 


, together in the case of any such redemption
with accrued and unpaid interest that is required to be paid in cash on the
next succeeding Interest Payment Date (such accrued interest to be computed for
actual days elapsed to the redemption date) and Liquidated Damages, if any,
thereon to the applicable redemption date.


 


(6)                                  MANDATORY REDEMPTION; OFFERS TO PURCHASE; OPEN MARKET
PURCHASES.  Except as set
forth in paragraph 7 below, the Company shall not be required to make mandatory
redemption or sinking fund payments or offers to purchase with respect to the
Notes.  The Company may at any time and
from time to time purchase Notes in the open market or otherwise.


 


(7)                                  REPURCHASE AT OPTION OF HOLDER.  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 a multiple thereof) of each Holder’s Notes at an offer
price in cash equal to 101% of the Current Accretion Amount thereof, plus
accrued and unpaid interest that is required to be paid in cash on the next
Interest Payment Date and Liquidated Damages, if any, thereon to the Change of
Control Payment Date (the “Change of Control
Payment”).  Within 25 days
following any Change of Control, the Company shall mail a notice to each Holder
with a copy to the Trustee setting forth the procedures governing the Change of
Control Offer as required by Section 5.14 of the Indenture.


 


24

















 


When the aggregate amount of Excess Proceeds exceeds $5.0 million, the
Company shall make an Asset Sale Offer pursuant to Section 3.10 of the
Indenture to all Holders and all holders of Subordinated Notes to purchase the
maximum principal amount of Notes and Subordinated 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 and
Liquidated Damages, if any, thereon to the date of purchase, in accordance with
the procedures set forth in Section 3.10 of the Indenture and the
Subordinated Note Documents.  To the
extent that the aggregate amount of Notes and Subordinated Notes tendered pursuant
to an Asset Sale Offer is less than the Excess Proceeds, the Company may use
any remaining Excess Proceeds for general corporate purposes.  If the aggregate principal amount of Notes
and Subordinated Notes surrendered by Holders and holders of Subordinated Notes,
respectively, exceeds the amount of Excess Proceeds, the Trustee shall select
the Notes and Subordinated Notes to be purchased on a pro rata basis.  Upon completion of such offer to purchase, the amount of Excess
Proceeds shall be reset at zero. 
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.”


 


If the aggregate amount which would be includible in gross income for
federal income tax purposes with respect to the Notes before any Interest
Payment Date occurring after the fifth (5th) anniversary of the
Closing Date (the “Aggregate Inclusion”)
exceeds an amount equal to the sum of (x) the aggregate amount of interest paid
in cash under the Notes before such Interest Payment Date and (y) the product
of the issue price of all of the Notes (as determined under United States
Treasury Regulation Section 1.1273-2(a)) multiplied by 16.51% (the sum of
(x) and (y), the “Adjusted Actual Payment”),
the Company shall, on such Interest Payment Date, make a mandatory redemption
(any such redemption a “Special Mandatory
Redemption”) on the Notes, with the premium calculated in accordance
with Paragraph 5 of the reverse of this Note, to the extent that the Aggregate
Inclusion exceeds the Adjusted Actual Payment.


 


(8)                                  NOTICE OF REDEMPTION.   Notice of redemption shall be mailed by
first class mail at least 30 days but not more than 60 days before the redemption
date to each Holder of Notes to be redeemed at its registered address.  Notes in denominations larger than $1,000
may be redeemed in part but only in multiples of $1,000, unless all of the
Notes held by a Holder are to be redeemed.  
Notices of redemption may not be conditional.  On and after the redemption date, unless the Company defaults in
the payment of the redemption price, interest and Liquidated Damages, if any,
will cease to accrue on the principal amount of the Notes or portions of them
called for redemption.


 


(9)                                  DENOMINATIONS, TRANSFER, EXCHANGE.  The Notes are in registered form without
coupons in minimum denominations of $1,000, except that PIK Notes may be issued
in smaller denominations.  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 is not required to transfer or
exchange any Note selected for redemption, except for the unredeemed portion of
any Note being redeemed in part.   Also,
the Company is not required to transfer or exchange any Note for a period of 15
days before a selection of Notes to be redeemed.


 


(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 or the Notes may be
amended or supplemented with the consent of the Holders of at least a majority
in aggregate principal amount of the Notes then outstanding, and any existing
default or


 


25

















 


compliance with any provision of the
Indenture or the Notes may be waived with the consent of the Holders of at
least a majority in aggregate principal amount of the then outstanding
Notes.  Without the consent of any Holder,
the Company and the Trustee may amend or supplement the Indenture or the Notes
to cure any ambiguity, defect or inconsistency, to provide for uncertificated
Notes in addition to or in place of certificated Notes, to provide for the
assumption of the Company’s obligations to Holders in the case of a merger or
consolidation, to make any change that would provide any additional rights or
benefits to the Holders or that does not adversely affect the legal rights
under the Indenture of any such Holder or to comply with requirements of the
SEC in order to effect or maintain the qualification of the Indenture under the
Trust Indenture Act.


 


(12)                            DEFAULTS AND REMEDIES. 
Events of Default include: (i) default for 30 days in the payment when
due of interest on, or Liquidated Damages, if any, with respect to, the Notes;
(ii) default in payment when due of the principal of, or premium, if any, on,
the Notes; (iii) failure by the Company to comply with the provisions of
Sections 3.10, 5.07 through 5.12 inclusive, 5.14 through 5.17, inclusive, or
Article 6 of the Indenture; (iv) failure to observe or perform any other
covenant or agreement of the Company under the Indenture, the Notes or other
Transaction Documents continued for 30 days after written notice to the Company
by the Trustee or any Holder; (v) material breach of representations and
warranties contained in the Transaction Documents; (vi) default 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 Subsidiaries (or the payment of which is Guaranteed by
the Company or any of its Subsidiaries), whether such Indebtedness or Guarantee
now exists, or is created after the date of the Indenture, which default (A) is
caused by a failure to pay principal of or premium, if any, or interest on such
Indebtedness on or prior to the expiration of the grace period provided in such
Indebtedness on the date of such default (a “Payment
Default”) or (B) 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 $5.0 million or more; (vii) failure
by the Company or any of its Subsidiaries to pay final judgments or arbitration
awards which are non-appealable
aggregating in excess of $5.0 million, which judgments and arbitration awards
are not paid, discharged or stayed for a period of 60 days; and (viii) certain
events of bankruptcy or insolvency with respect to the Company or any
Significant Subsidiary or any group of Subsidiaries that, taken together, would
constitute a Significant Subsidiary.


 


If any Event of Default occurs and is continuing, the Trustee or the
Holders of (a) more than 50% in principal amount of the Notes at the time
outstanding until the earlier of (i) the Exchange Offer having been
consummated by the Company or (ii) a registration statement permitting the
resales of the Notes having been declared effective by the SEC and
(b) thereafter, 25% or more in principal amount of the then outstanding
Notes may declare all the Notes to be due and payable immediately.  Notwithstanding the foregoing, in the case
of an Event of Default arising from certain events of bankruptcy or insolvency,
with respect to the Company, any Significant Subsidiary or any group of
Subsidiaries that, taken together, would constitute a Significant Subsidiary,
all outstanding Notes will become due and payable without further action or
notice.  Holders may not enforce the
Indenture or the Notes except as provided in the Indenture.  Subject to certain limitations, Holders of
at least a majority in principal amount of the then outstanding Notes may
direct the Trustee in its exercise of any trust or power.  The Trustee may withhold from Holders notice
of any continuing Default or Event of Default (except a Default or Event of
Default relating to the payment of principal, premium, if any, interest or
Liquidated Damages, if any) if it determines that withholding notice is in
their interest.


 


The Holders of at least a majority in aggregate principal amount of the
Notes then outstanding by notice to the Trustee may on behalf of the Holders of
all of the Notes waive any existing Default or Event of Default and its
consequences under the Indenture except (a) a continuing Default or Event of
Default in


 


26

















 


the payment of principal, premium, if any, interest or
Liquidated Damages, 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 and a waiver of the payment default that resulted
from such acceleration) or (b) in respect of a covenant or provision hereof
which under Section 10.02 cannot be modified or amended without the
consent of the Holder of each outstanding Note.


 


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 Indenture contains certain limitations on the rights of the
Trustee, should it become a creditor of the Company, to obtain payment of
claims in certain cases, or to realize on certain property received in respect
of any such claim as security or otherwise. 
The Trustee will be permitted to engage in other transactions; however,
if it acquires any conflicting interest it must eliminate such conflict within
90 days, apply to the SEC for permission to continue or resign.


 


(14)                            NO RECOURSE AGAINST OTHERS. 
No director, officer, employee, incorporator or stockholder of the
Company, as such, shall have any liability for any obligations of the Company
under the Notes, the Indenture or the Registration Rights Agreement 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.  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.


 


(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 TRANSFER RESTRICTED SECURITIES.  In addition to the rights provided to
Holders under the Indenture, Holders of Transferred Restricted Securities (as
defined in the Registration Rights Agreement) shall have all the rights set
forth in 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:


 


DFG HOLDINGS, INC.


1436 Lancaster Avenue


Berwyn, Pennsylvania 19312


 


27

















 


Attention:  Chief Financial Officer


 


28

















 


ASSIGNMENT FORM


 


To assign this Note, fill in the form below: (I) or
(we) assign and transfer this Note to


 


 


(Insert assignee’s soc.  sec. 
or tax I.D.  no.)


 


 


 


 


 


(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 Recognized Signature
Medallion Program (or other signature guarantor acceptable to Trustee).


 


29

















 


OPTION OF HOLDER TO ELECT
PURCHASE


 


If you want to elect to have this Note purchased by the Company
pursuant to Section 3.10 or 5.14 of the Indenture, check the box below:


 




	
  o Section 3.10

  	
   

  	
  o Section 5.14

  






 


If you want to elect to have only part of this Note purchased by the
Company pursuant to Section 3.10 or Section 5.14 of the Indenture,
state the amount you elect to have purchased:
$          


 


	
  Date:

  	
   

  	
   

  	
  Your Signature: 

  	
   

  	
   

  
	
   

  	
  (Sign exactly as your name
  appears on this Note)

  
	
   

  	
   

  
	
   

  	
  Tax Identification No.:

  	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  Signature Guarantee:*

  
								



 


 












*                                         Participant
in Recognized signature Medallion Program (or other signature guarantor
acceptable to Trustee).


 


30

















 


[If the note is a Global
Note, then insert—SCHEDULE OF
EXCHANGES FOR CERTIFICATED NOTE OR ANOTHER GLOBAL NOTE


 


The following exchanges of a part of this Global Note for certificated
Notes or another 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 officers

  of Trustee or Note

  Custodian]

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  



 


SECTION 2.04  EXECUTION AND
AUTHENTICATION.


 


The Notes shall be executed on behalf of the Company by one of its
Officers.  The signature of any Officer
on the Notes may be manual or facsimile.


 


Notes bearing the manual or facsimile signature of an individual who
was at any time an Officer of the Company shall bind the Company, notwithstanding
that such individual has ceased to hold such office prior to the authentication
and delivery of such Notes or did not hold such office at the date of such
Notes.


 


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.


 


At any time and from time to time after the execution and delivery of
this Indenture, the Company may deliver Notes executed by the Company to the
Trustee for authentication, together with a Company Order for the
authentication and delivery of such Notes, and the Trustee in accordance with
such Company Order shall authenticate and deliver such Notes as in this
Indenture provided and not otherwise. 
The Company Order shall specify the amount of Notes to be authenticated,
the date on which the Notes shall be authenticated and the aggregate principal
amount of Notes outstanding on the date of authentication.  The aggregate principal amount of Notes
outstanding at any time may not exceed the sum of (x) $49,351,422 and (y) the
aggregate amount of PIK Notes issued from time to time after the Closing Date
equal to the aggregate amount of PIK Payments theretofore made, except as
provided in Section 2.09.


 


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 the Company or an Affiliate of the Company.


 


Each Note shall be dated the date of its authentication.  The Senior Notes shall be originally dated
and authenticated as of November 13, 2003.


 


No Note shall be entitled to any benefit under this Indenture or be
valid or obligatory for any purpose unless there appears on such Note a
certificate of authentication substantially in the form provided for herein
executed by the Trustee by manual signature, and such certificate upon any Note
shall be conclusive evidence, and the only evidence, that such Note has been
duly authenticated and delivered hereunder.


 


31

















 


SECTION 2.05  REGISTRAR AND PAYING
AGENT.


 


The Company shall maintain an office or agency where the Notes may be
presented for registration of transfer or for exchange (“Registrar”) and an office or agency where
the Notes may be presented for payment (“Paying
Agent”).  The Registrar shall
keep a register of the Notes (the “Notes
Register”) and of their transfer and exchange.  Such Notes Register shall distinguish
between Senior Notes and Exchange Senior Notes.  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 “Paying Agent” includes any
additional paying agent.  The Company
may change any Paying Agent or Registrar without  notice to any Holder. 
The Company shall 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 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 Note Custodian with respect to the Global Notes.


 


SECTION 2.06  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, if any, interest or Liquidated Damages, if any, on the
Notes, and will promptly 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 2.07  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 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 2.08  REGISTRATION; TRANSFER AND
EXCHANGE GENERALLY; CERTAIN TRANSFERS AND EXCHANGES; SECURITIES ACT LEGENDS.


 


(a)                                  Transfer and Exchange of Global Notes.  The transfer and exchange of Global Notes or
beneficial interests therein shall be effected through the Depositary, in
accordance with this Indenture and the Applicable Procedures, which shall
include restrictions on transfer comparable to those set forth herein to the
extent required by the Securities Act. 
Beneficial interests in a Global Note may be transferred to Persons who
take delivery thereof in the form of a beneficial interest in the same Global
Note in accordance with the transfer restrictions set forth in the Note.  Transfers of beneficial interests in


 


32

















 


the Global Notes to Persons required to take
delivery thereof in the form of an interest in another Global Note shall be
permitted as follows:


 


(i)                                     Restricted Global Note to Regulation S Global Note.  If the owner of a beneficial interest in the
Restricted Global Note wishes at any time to transfer such interest to a Person
who wishes to take delivery thereof in the form of a beneficial interest in the
Regulation S Global Note, such transfer may be effected only in accordance with
the provisions of this subsection (a)(i) and subsection (a)(v) below
and subject to the Applicable Procedures. 
Upon receipt by the Trustee, as Registrar, of (A) an order given by the
Depositary or its authorized representative directing that a beneficial
interest in the Regulation S Global Note in a specified principal amount be
credited to a specified Agent
Member’s account and that a beneficial interest in the Restricted Global Note
in an equal principal amount be debited from another specified Agent Member’s
account and (B) a Regulation S Certificate, in the form of Exhibit A hereto,
duly executed by the owner of such beneficial interest in the Restricted Global
Note or his attorney duly authorized in writing, the Trustee, as Registrar but
subject to subsection (a)(v) below, shall reduce the principal amount of
the Restricted Global Note and increase the principal amount of the Regulation
S Global Note by such specified principal amount.


 


(ii)                                  Regulation S
Global Note to Restricted Global Note.  If the owner of a beneficial interest in the Regulation S Global
Note wishes at any time to transfer such interest to a Person who wishes to
take delivery thereof in the form of a beneficial interest in the Restricted
Global Note, such transfer may be effected only in accordance with this
subsection (a)(ii) and subject to the Applicable Procedures.  Upon receipt by the Trustee, as Registrar,
of (A) an order given by the Depositary or its authorized representative
directing that a beneficial interest in the Restricted Global Note in a
specified principal amount be credited to a specified Agent Member’s account
and that a beneficial interest in the Regulation S Global Note in an equal
principal amount be debited from another specified Agent Member’s account and
(B) if such transfer is to occur during the Restricted Period, a Restricted
Notes Certificate, in the form of Exhibit B hereto, duly executed by the owner
of such beneficial interest in the Regulation S Global Note or his attorney
duly authorized in writing, the Trustee, as Registrar, shall reduce the principal
amount of the Regulation S Global Note and increase the principal amount of the
Restricted Global Note by such specified principal amount.


 


(iii)                               Restricted Non-Global Note to Restricted Global Note
or Regulation S Global Note. 
If the Holder of a Restricted Note (other than a Global Note) wishes at
any time to transfer all or any portion of such Note to a Person who wishes to
take delivery thereof in the form of a beneficial interest in the Restricted
Global Note or the Regulation S Global Note, such transfer may be effected only
in accordance with the provisions of this subsection (a)(iii) and
subsection (a)(v) below and subject to the Applicable Procedures.  Upon receipt by the Trustee, as Registrar,
of (A) such Note and instructions satisfactory to the Trustee directing that a
beneficial interest in the Restricted Global Note or Regulation S Global Note
in a specified principal amount not greater than the principal amount of such
Note be credited to a specified Agent Member’s account and (B) a Restricted
Notes Certificate, if the specified account is to be credited with a beneficial
interest in the Restricted Global Note, or a Regulation S Certificate, if the
specified account is to be credited with a beneficial interest in the
Regulation S Global Note, in either case satisfactory to the Trustee and duly
executed by such Holder or his attorney duly authorized in writing, the
Trustee, as Registrar, but subject to subsection (a)(v) below, shall
cancel such Note (and issue a new Note in respect of any untransferred portion
thereof) and increase the principal amount of the Restricted Global Note or the
Regulation S Global Note, as the case may be, by the specified principal
amount.


 


(iv)                              Regulation S Non-Global Note to Restricted Global
Note or Regulation S Global Note. 
If the Holder of a Regulation S Note (other than a Global Note) wishes
at any time to transfer all or any portion of such Note to a Person who wishes
to take delivery thereof in the form of a


 


33

















 


beneficial interest in the
Restricted Global Note or the Regulation S Global Note, such transfer may be
effected only in accordance with this subsection (a)(iv) and
subsection (a)(v) below and subject to the Applicable Procedures.  Upon receipt by the Trustee, as Registrar,
of (A) such Note and instructions satisfactory to the Trustee directing that a
beneficial interest in the Restricted Global Note or Regulation S Global Note
in a specified principal amount not greater than the principal amount of such
Note be credited to a specified Agent Member’s account and (B) if the transfer
is to occur during the Restricted Period and the specified account is to be
credited with a beneficial interest in the Restricted Global Note, a Restricted
Notes Certificate, duly executed by such Holder or his attorney duly authorized
in writing, the Trustee, as Registrar, but subject to subsection (a)(v)
below, shall cancel such Note (and issue a new Note in respect of any untransferred
portion thereof) and increase the principal amount of the Restricted Global
Note or the Regulation S Global Note, as the case may be, by the specified
principal amount.


 


(v)                                 Regulation S Global Note to be Held Through Euroclear
or Clearstream during Restricted Period. 
The Company shall use its best efforts to cause the
Depositary to ensure that, until the expiration of the Restricted Period,
beneficial interests in the Regulation S Global Note may be held only in or
through accounts maintained at the Depositary by Euroclear or Clearstream (or
by Agent Members acting for the account thereof), and no person shall be
entitled to effect any transfer or exchange that would result in any such
interest being held otherwise than in or through such an account; provided that
this subsection (a)(v) shall not prohibit any transfer or exchange of such
an interest in accordance with subsection (a)(ii) above or (c) below.


 


(b)                                 Transfer and Exchange of Certificated Notes.  When certificated Notes are presented by a
Holder to the Registrar with a request:


 


(x)                                   to register the transfer of the
certificated Notes; or


 


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


 


the Registrar shall register the transfer or make the
exchange as requested; provided, however,
that the certificated Notes presented or surrendered for register of transfer
or exchange:


 


(i)                                     shall
be duly endorsed or accompanied by a written instruction of transfer in form
satisfactory to the Registrar duly executed by such Holder or by his attorney,
duly authorized in writing; and


 


(ii)                                  if
the Note is to be transferred in whole or in part and is a Restricted Note, or
is a Regulation S Note and the transfer is to occur during the Restricted
Period, then the Trustee shall have received (A) a Restricted Notes
Certificate, duly executed by the transferor Holder or his attorney duly
authorized in writing, in which case the transferee Holder shall take delivery
in the form of a Restricted Note, or (B) a Regulation S Certificate, satisfactory
to the Trustee and duly executed by the transferor Holder or his attorney duly
authorized in writing, in which case the transferee Holder shall take delivery
in the form of a Regulation S Note (subject in each case to
Section 2.08(f)).


 


(c)                                  Transfer of a Beneficial Interest in a Restricted
Global Note or Regulation S Global Note for a Certificated Note.


 


(i)                                     Any
Person having a beneficial interest in a Restricted Global Note or Regulation S
Global Note may upon request, subject to the Applicable Procedures, exchange
such beneficial interest for a certificated Note.  Upon receipt by the Trustee of written instructions or such other
form of instructions as is customary for the Depositary (or Euroclear or Clearstream,
if applicable),


 


34

















 


from the Depositary or its
nominee on behalf of any Person having a beneficial interest in a Restricted
Global Note or Regulation S Global Note; provided,
that if such interest is a beneficial interest in the Restricted Global Note,
or if such interest is a beneficial interest in the Regulation S Global Note
and such exchange is to occur during the Restricted Period, then such interest
shall be exchanged for a Restricted Note (subject in each case to
Section 2.08(f));


 


(ii)                                  in
which case the Trustee or the Note Custodian, at the direction of the Trustee,
shall, in accordance with the standing instructions and procedures existing
between the Depositary and the Note Custodian, cause the aggregate principal
amount of Restricted Global Note or Regulation
S Global Note, as applicable, to be reduced accordingly and, following such
reduction, the Company shall execute and, the Trustee shall authenticate and
deliver to the transferee a certificated Note in the appropriate principal
amount.


 


(iii)                               Certificated
Notes issued in exchange for a beneficial interest in a Restricted Global Note
or Regulation S Global Note, as applicable, pursuant to this
subsection (c) shall be registered in such names and in such authorized
denominations as the Depositary, pursuant to instructions from its Agent
Members or otherwise, shall instruct the Trustee.  The Trustee shall deliver such certificated Notes to the Persons
in whose names such Notes are so registered. 
Following any such issuance of certificated Notes, the Trustee, as
Registrar, shall instruct the Depositary to reduce or cause to be reduced the
aggregate principal amount at maturity of the applicable Global Note to reflect
the transfer.


 


(d)                                 Restrictions on Transfer and Exchange of Global Notes.  Notwithstanding any other provision of this
Indenture (other than the provisions set forth in subsection (e) of this
Section 2.08), a Global Note may not be transferred as a whole except 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.


 


(e)                                  Authentication of Certificated Notes in Absence of
Depositary.  If at any time:


 


(i)                                     the
Depositary (a) notifies the Company that the Depositary is unwilling or unable
to continue as Depositary for the Global Notes or (b) has ceased to be a
clearing agency registered under the Exchange Act and, in either case, a successor
Depositary for the Global Notes is not appointed by the Company within 90 days
thereafter;


 


(ii)                                  the
Company, at its option, notifies the Trustee in writing that it elects to cause
the issuance of certificated Notes under this Indenture; or


 


(iii)                               there
has occurred and is continuing a Default or Event of Default with respect to
the Notes, then the Company shall execute, and the Trustee shall, upon receipt
of an authentication order in accordance with Section 2.04 hereof,
authenticate and deliver, certificated Notes in an aggregate principal amount
equal to the principal amount of the Global Notes in exchange for such Global
Notes.


 


(f)                                    Securities Act Legends.  Rule 144A Notes and their Successor Notes
shall bear a Restricted Notes Legend, and Initial Regulation S Notes and their
Successor Notes shall bear a Regulation S Legend, subject to the following:


 


(i)                                     subject
to the following subsections of this Section 2.08(f), a Note or any
portion thereof which is exchanged, upon transfer or otherwise, for a Global
Note or any portion thereof shall bear the Securities Act Legend borne by such
Global Note while represented thereby;


 


35

















 


 


(ii)                                  subject
to the following subsections of this Section 2.08(f), a new Note which is
not a Global Note and is issued in exchange for another Note (including a
Global Note) or any portion thereof, upon transfer or otherwise, shall bear the
Securities Act Legend borne by such other Note; provided, that if such new Note is required pursuant to
Section 2.08(b) or (c) to be issued in the form of a Restricted Note, it
shall bear a Restricted Notes Legend and, if such new Note is so required to be
issued in the form of a Regulation S Note, it shall bear a Regulation S Legend;


 


(iii)                               Registered
Notes shall not bear a Securities Act Legend;


 


(iv)                              at
any time after the Notes may be freely transferred without registration under
the Securities Act or without being subject to transfer restrictions pursuant
to the Securities Act, a new Note which does not bear a Securities Act Legend
may be issued in exchange for or in lieu of a Note (other than a Global Note)
or any portion thereof which bears such a legend if the Trustee has received an
Unrestricted Notes Certificate, in the form of Exhibit C hereto, duly executed
by the Holder of such legended Note or his attorney duly authorized in writing,
and after such date and receipt of such certificate, at the direction of the
Company, the Trustee shall authenticate and deliver such a new Note in exchange
for or in lieu of such other Note;


 


(v)                                 a
new Note which does not bear a Securities Act Legend may be issued in exchange
for or in lieu of a Note (other than a Global Note) or any portion thereof
which bears such a legend if, in the Company’s judgment, placing such a legend
upon such new Note is not necessary to ensure compliance with the registration
requirements of the Securities Act, and the Trustee, at the direction of the
Company, shall authenticate and deliver such a new Note; and


 


(vi)                              notwithstanding
the foregoing provisions of this Section 2.08(f), a Successor Note of a
Note that does not bear a particular form of Securities Act Legend shall not
bear such form of legend unless the Company has reasonable cause to believe
that such Successor Note is a “restricted note” within the meaning of Rule 144,
in which case the Trustee, at the direction of the Company, shall authenticate
and deliver a new Note bearing a Restricted Notes Legend in exchange for such
Successor Note.


 


(g)                                 Cancellation and/or Adjustment of Global Notes.  At such time as all beneficial interests in
the Global Notes have been exchanged for certificated Notes, redeemed,
repurchased or cancelled, all Global Notes shall be returned to or retained and
cancelled by the Trustee in accordance with Section 2.13 hereof.  At any time prior to such cancellation, if
any beneficial interest in a Global Note is exchanged for certificated Notes,
redeemed, repurchased or cancelled, 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 the Notes Custodian, at the
direction of the Trustee, to reflect such reduction.


 


(h)                                 General Provisions Relating to Transfers and
Exchanges.


 


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


 


(ii)                                  No
service charge shall be made to a Holder 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 2.12, 3.06, 3.10, 5.14 and 10.05
hereto).


 


36

















 


(iii)                               All
certificated Notes and Global Notes issued upon any registration of transfer or
exchange of certificated Notes or Global Notes shall be the valid obligations
of the Company, evidencing the same debt (except for the differences between
the Exchange Senior Notes and the Senior Notes provided for herein) and
entitled to the same benefits under this Indenture, as the certificated Notes
or Global Notes surrendered upon such registration of transfer or exchange.


 


(iv)                              The
Company shall not be required:


 


(A)                              to
issue, to register the transfer of or to exchange 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 any Note between a record date and the
immediately following interest payment date.


 


(v)                                 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, premium, if any, interest and Liquidated Damages, if
any, on such Notes, and neither the Trustee, any Agent nor the Company shall be
affected by notice to the contrary.


 


(vi)                              The
Trustee shall authenticate certificated Notes and Global Notes in accordance
with the provisions of Section 2.04 hereof.


 


(vii)                           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 Agent Members 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.


 


(viii)                        Neither
the Trustee nor any of its agents shall have any responsibility for any actions
taken or not taken by the Depositary.


 


SECTION 2.09  REPLACEMENT
NOTES.


 


If any mutilated
Note is surrendered to the Trustee, or the Company and the Trustee receives
evidence to its satisfaction of the destruction, loss or theft of any Note, the
Company shall issue and the Trustee, upon the written order of the Company
signed by two Officers of the Company, shall authenticate a replacement Note if
the Trustee’s requirements are met.  If
required by the Trustee or the Company, an indemnity bond must be supplied by
the Holder that is sufficient in the judgment of the Trustee and the Company to
protect the Company, the Trustee, any Agent and any authenticating agent from
any loss that any of them may suffer if a Note is replaced.  The Company may charge for its 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.


 


37

















 


SECTION 2.10  OUTSTANDING
NOTES.


 


The Notes
outstanding at any time are all the Notes authenticated by the Trustee except
for those cancelled 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 2.11 hereof, a Note does not cease to be
outstanding because the Company or an Affiliate of the Company holds the Note.


 


If a Note is
replaced pursuant to Section 2.09 hereof, it ceases to be outstanding
unless the Trustee receives proof satisfactory to it that the replaced Note is
held by a bona fide purchaser.


 


If the principal
amount of any Note is considered paid under Section 5.01 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)
holds, on a redemption date or maturity date, money sufficient to pay Notes payable
on that date, then on and after that date such Notes shall be deemed to be no
longer outstanding and shall cease to accrue interest.


 


SECTION 2.11  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 (excluding any Purchasers), 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 the Trustee knows are so owned shall be so
disregarded.


 


SECTION 2.12  TEMPORARY NOTES.


 


Until certificated
Notes are ready for delivery, the Company may prepare and the Trustee shall
authenticate temporary Notes upon a written order of the Company signed by two
Officers of the Company.  Temporary
Notes shall be substantially in the form of certificated Notes but may have
variations that the Company considers appropriate for temporary Notes and as
shall be reasonably acceptable to the Trustee. 
Without unreasonable delay, the Company shall prepare and the Trustee
shall authenticate certificated Notes in exchange for temporary Notes.


 


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


 


SECTION 2.13  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 all Notes surrendered for registration of transfer,
exchange, payment, replacement or cancellation and shall destroy cancelled
Notes (subject to the record retention requirement of the Exchange Act).  Certification of the destruction of all
cancelled Notes shall be delivered to the Company.  The Company may not issue new Notes to replace Notes that it has
paid or that have been delivered to the Trustee for cancellation.


 


38

















 


SECTION 2.14  DEFAULTED
INTEREST.


 


If the Company
defaults in a payment of interest (including Default Interest, if any, and
Liquidated Damages, if any) on the Notes, it shall pay the defaulted interest
in cash (including Default Interest, if any, and Liquidated Damages, if any) in
any lawful manner plus, to the extent lawful, interest payable on the defaulted
interest (including Default Interest, if any, and Liquidated Damages, if any),
to the Persons who are Holders on a subsequent special record date, in each
case at the rate provided in the Notes and in Sections 5.01 and 7.03
hereof.  The Company shall notify the
Trustee in writing of the amount of defaulted interest (including Default
Interest, if any, and Liquidated Damages, if any) 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.


 


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 or if the Company is obligated to effect a Special
Mandatory Redemption pursuant to Section 3.09(a) hereof, in each such
case, it shall furnish to the Trustee, at least 45 days but not more than 60
days before a redemption date, an Officers’ Certificate setting forth (i) the
subsection 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.  The
Trustee shall not be required to perform any calculations in connection with
any Special Mandatory Redemption and shall be entitled to rely exclusively on
the written notice delivered to the Trustee by the Company.


 


SECTION 3.02  SELECTION OF
NOTES TO BE REDEEMED.


 


If less than all
of the Notes are to be redeemed at any time, selection of Notes for redemption
shall be made by the Trustee on a pro
rata basis and in any event in
compliance with the requirements of the principal national securities exchange,
if any, on which the Notes may be listed; provided
that no Notes of $1,000 or less shall be redeemed in part.


 


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 thereof to be redeemed.  Notes
and portions of Notes selected shall be in amounts of $1,000 or 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.  A new
Note in principal amount equal to the unredeemed portion thereof will be issued
in the name of the Holder thereof upon cancellation of the original Note.  On and after the redemption date, unless the
Company defaults in the payment of the redemption price, interest and
Liquidated Damages, if any, will cease to accrue on the principal amount of the
Notes or portions of them called for redemption.  Except as provided in this Section 3.02, provisions of this
Indenture that apply to Notes called for redemption also apply to portions of
Notes called for redemption.


 


39

















 


SECTION 3.03  NOTICE OF
REDEMPTION.


 


Subject to the
provisions of Section 3.10 hereof, at least 30 but not more than 60 days
before the redemption date, the Company shall mail or caused to be mailed, by
first class mail, a notice of redemption to each Holder of Notes whose Notes
are to be redeemed at its registered address.


 


The notice shall
identify the Notes to be redeemed and shall state:


 


(a)                                  the redemption date;


 


(b)                                 the redemption price;


 


(c)                                  if any Note is to be
redeemed in part only, the portion of the principal amount thereof 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, interest and Liquidated
Damages, if any, 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)                                 the CUSIP number; provided 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
request, the Trustee shall give the notice of redemption in the Company’s name
and at its expense; provided, however,
that the Company shall have delivered to the Trustee, at least 45 days prior to
the redemption date, an Officers’ Certificate requesting that the Trustee give
such notice and setting forth the information to be stated in such notice as
provided in the preceding paragraph.


 


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.  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,
Liquidated Damages, if any, 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, Liquidated Damages, if any, and accrued interest on
all Notes to be redeemed.


 


40

















 


If the Company
complies with the provisions of the preceding paragraph, on and after the
redemption date, interest and Liquidated Damages, if any, 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 Sections 5.01 and 7.03 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.


 


The Company shall not have the option to redeem
the Notes prior to November 13, 2003. 
Thereafter, the Notes will be subject to redemption at the option of the
Company, in whole or in part, upon not less than 30 nor more than 60 days’
prior written notice, at the redemption prices (expressed as percentages of the
sum (the “Current Accretion Amount”)
of (x) the principal amount being redeemed plus (y) all accrued and unpaid
interest to the redemption date that is permitted to be paid through the
issuance of the PIK Notes on the next succeeding Interest Payment Date (such
principal amount and accrued interest to be computed for actual days elapsed to
the redemption date)) if redeemed during the twelve-month period beginning on
January 1 of the years indicated below:


 




	
  YEAR

  	
   

  	
  PERCENTAGE

  	
   

  
	
  From the
  Closing Date through December 31, 2004

  	
   

  	
  112.500

  	
  %

  
	
  2005

  	
   

  	
  110.000

  	
  %

  
	
  2006

  	
   

  	
  107.500

  	
  %

  
	
  2007

  	
   

  	
  105.000

  	
  %

  
	
  2008

  	
   

  	
  102.500

  	
  %

  
	
  2009 and
  thereafter

  	
   

  	
  100.000

  	
  %

  






 


, together in the case of any such redemption with accrued and unpaid
interest that is required to be paid in cash on the next succeeding Interest
Payment Date (such accrued interest to be computed for actual days elapsed to
the redemption date) and Liquidated Damages, if any, thereon to the applicable
redemption date.


 


SECTION 3.08  APPLICATION OF
REDEMPTION PAYMENTS.


 


The Company may
not deliver a notice of redemption pursuant to Section 3.03 unless,
concurrently therewith, a similar notice of redemption is delivered to the
holders of the Subordinated Notes calling for a redemption of the same
percentage of the Subordinated Notes as the notice of redemption delivered
pursuant to Section 3.03. 
Notwithstanding the foregoing, at any time at or prior to
December 31, 2005, any Holder at its sole discretion may, with respect to
any optional redemption, so long as any Subordinated Notes are then
outstanding, elect by written notice provided to the Company and the Trustee at
least five (5) Business Days prior to the relevant redemption date, not to have
all or any amount of any such redemption applied to such Holder’s Notes, in
which case the aggregate amount so declined shall be applied to the redemption
of the Subordinated Notes; provided,
however, that to the


 


41

















 


extent that the aggregate amount of Notes so declined by the Holders
exceeds the aggregate principal amount of the Subordinated Notes (after giving
effect to such optional redemption), the amount of such excess shall be
allocated between the declining Holders of the Notes pro rata based on the
aggregate amount declined by each such Holder, and such amount as so applied
shall be used to redeem Notes.


 


SECTION 3.09  MANDATORY
REDEMPTION; OFFERS TO PURCHASE; OPEN MARKET PURCHASES.


 


(a)                                  If the aggregate amount which would be
includible in gross income for federal income tax purposes with respect to the
Notes before any Interest Payment Date occurring after the fifth (5th)
anniversary of the Closing Date (the “Aggregate
Inclusion”) exceeds an amount equal to the sum of (x) the aggregate
amount of interest paid in cash under the Notes before such Interest Payment
Date and (y) the product of the issue price of all of the Notes (as determined
under United States Treasury Regulation Section 1.1273-2(a)) multiplied by
16.51% (the sum of (x) and (y), the “Adjusted
Actual Payment”), the Company shall, on such Interest Payment Date,
make a mandatory redemption (any such redemption a “Special Mandatory Redemption”) on the Notes, with the
premium calculated in accordance with Paragraph 5 of the reverse of this Note,
to the extent that the Aggregate Inclusion exceeds the Adjusted Actual Payment.


 


(b)                                 Except as set forth in Sections 3.09(a),
3.10 and 5.14 hereof, the Company shall not be required to make mandatory
redemption or sinking fund payments or offers to purchase with respect to the
Notes.  The Company may at any time and
from time to time purchase Notes in the open market or otherwise.


 


SECTION 3.10  OFFER TO
PURCHASE BY APPLICATION OF EXCESS PROCEEDS.


 


In the event that,
pursuant to Section 5.10 hereof, the Company shall be required to commence
an offer to all Holders of Notes and all holders of Subordinated Notes to
purchase Notes and Subordinated Notes (an “Asset
Sale Offer”), it shall follow the procedures specified in this
Section 3.10.


 


The Asset Sale
Offer shall remain open for a period of 20 Business Days following its
commencement and no longer, except 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 and Subordinated Notes required to be
purchased pursuant to Section 5.10 hereof (the “Offer Amount”) or, if less than the Offer Amount has been
tendered, all Notes and Subordinated 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 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 tendered and purchased 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:


 


42

















 


(a)                                  that the Asset Sale
Offer is being made pursuant to this Section 3.10 and Section 5.10
hereof to Holders of Notes and holders of Subordinated Notes 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 accrue interest and
Liquidated Damages, if any;


 


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


 


(e)                                  that Holders electing
to have any Notes purchased pursuant to any Asset Sale Offer shall be required
to surrender the Notes, with the form entitled “Option of Holder to Elect Purchase” on the reverse of the
Note completed, to the Paying Agent or the Depositary, as applicable, at the
address specified in the notice prior to the close of business on the third
Business Day preceding the Purchase Date;


 


(f)                                    that Holders shall
be entitled to withdraw their election if the Paying Agent or the Depositary,
as applicable, receives, not later than the expiration of the Offer Period, 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 its election to have such Note
purchased;


 


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


 


(h)                                 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 and Subordinated Notes or portions thereof
tendered pursuant to the Asset Sale Offer, or, if less than the Offer Amount
has been tendered, all Notes and Subordinated 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 3.10.  The Paying
Agent shall promptly (but in any case not later than five Business Days after
the Purchase Date) mail or deliver to each tendering Holder an amount received
from the Company 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 cause to be transferred by book-entry) 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 caused to be transferred by book-entry)
by the Company to the Holder thereof. 
The Company shall publicly announce the results of the Asset Sale Offer
on the Purchase Date.


 


43

















 


Other than as
specifically provided in this Section 3.10, any purchase pursuant to this
Section 3.10 shall be made pursuant to the provisions of Sections 3.01
through 3.06 hereof.


 


ARTICLE 4

SATISFACTION AND DISCHARGE


 


SECTION 4.01  SATISFACTION
AND DISCHARGE.


 


This Indenture
shall cease to be of further effect (except Sections 2.06, 2.08, 2.09, 3.07,
5.01, 8.01, 8.02 and 8.07), and the Trustee, on demand of and at the expense of
the Company, shall execute proper instruments acknowledging satisfaction and
discharge of this Indenture when:


 


(1)          either:


 


(a)                                  the Company will have
paid or will have caused to be paid the principal of, premium, if any, interest
and Liquidated Damages, if any, as and when the same shall have become due and
payable;


 


(b)                                 all outstanding Notes
(other than Notes which have been lost, stolen or destroyed and which have been
replaced or paid as provided in Section 2.09) have been delivered to the
Trustee for cancellation; or


 


(c)                                  an irrevocable notice
of redemption has been delivered in accordance with Section 3.03 with
respect to all outstanding Notes and the Company has made an irrevocable
deposit with the Trustee, in trust, of cash in U.S.  dollars, non-callable U.S. 
Government Obligations, or a combination thereof, in such amounts as
will be sufficient, in the opinion of a nationally recognized firm of independent
certified public accountants, to pay the principal of, premium, if any,
interest and Liquidated Damages, if any, on the outstanding Notes on the
applicable redemption date;


 


(2)          the Company has paid or caused to be paid all
other sums payable hereunder by the Company; and


 


(3)          the Company has delivered to the Trustee an
Officers’ Certificate and an Opinion of Counsel, each stating that all
conditions precedent herein provided for relating to the satisfaction and
discharge of this Indenture have been complied with.


 


Notwithstanding the satisfaction and discharge of this Indenture
pursuant to this Article Four, the obligations of the Company to the
Trustee under Section 8.07 and, if money shall have been deposited with
the Trustee pursuant to subsection (c) of subsection (1) of this
Section, the obligations of the Trustee under Section 4.02 and the last
paragraph of Section 9.05 shall survive.


 


SECTION 4.02  APPLICATION OF
TRUST MONEY.


 


Subject to the
provisions of the last paragraph of Section 9.05, all money deposited with
the Trustee pursuant to Section 4.01 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 as the Trustee may determine,
to the Persons entitled thereto, of the principal (and premium, if any) and
interest (including any Liquidated Damages) for whose payment such money has
been deposited with the Trustee.


 


44

















 


ARTICLE 5

COVENANTS


 


SECTION 5.01  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, if other than the
Company or a Subsidiary 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.  If on any Interest Accrual Date the Company
has elected to make a PIK Payment, the applicable installment of interest shall
be considered paid on the date it is due if the Trustee or Paying Agent holds
on that date any combination of money in immediately available funds and fully
issued and authenticated PIK Notes in a combined aggregate amount equal to the
amount of the installment of interest that is due and payable on such Interest
Accrual Date.  The Company shall pay all
Liquidated Damages, if any, in the manner, on the dates and in the amounts set
forth in the Registration Rights Agreement.


 


The Company shall
pay interest (including post-petition interest in any proceeding under any
Bankruptcy Law) on overdue principal at the rate equal to 2% 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 Liquidated Damages
(without regard to any applicable grace period) at the same rate to the extent
lawful.


 


SECTION 5.02  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 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,
however, 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 one such office or agency
of the Company.


 


SECTION 5.03  REPORTS.


 


Notwithstanding
that the Company may not be subject to the reporting requirements of Section 13
or 15(d) of the Exchange Act, the Company shall file with the SEC (to the
extent the SEC will accept such filings) and provide the Trustee and the
Holders with such annual reports and such information, documents and other
reports as are specified in Sections 13 and 15(d) of the Exchange Act and
applicable to a U.S.  corporation
subject to such Sections, such annual reports and such information, documents
and


 


45

















 


other reports to be so filed and provided at the times specified for
the filing thereof under such Sections. 
In addition, the Company will furnish to the Holders and to prospective
investors, upon request, any information required to be delivered pursuant to
Rule 144A(d)(4) under the Securities Act so long as the Notes are not freely
transferable under the Securities Act.


 


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 as provided in Section 5.04).


 


SECTION 5.04  COMPLIANCE
CERTIFICATE.


 


(a)                                  The Company 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, premium, Liquidated Damages 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)                                 So long as not
contrary to the then current recommendations of the American Institute of
Certified Public Accountants, the year-end financial statements delivered
pursuant to Section 5.03 above shall be accompanied by a written statement
of the Company’s independent public accountants (who shall be a firm of
established national reputation) that in making the examination necessary for
certification of such financial statements, nothing has come to their attention
that would lead them to believe that the Company has violated any provisions of
Article Five or Article Six hereof or, if any such violation has occurred, specifying the nature
and period of existence thereof, it being understood that such accountants
shall not be liable directly or indirectly to any Person for any failure to
obtain knowledge of any such violation.


 


(c)                                  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 5.05  TAXES.


 


(a)                                  The Company shall pay
or discharge or cause to be paid or discharged, before the same shall become
delinquent, (i) all taxes, assessments and governmental charges levied or
imposed upon the Company or any of its Subsidiaries or upon the income, profits
or property of the Company or any of its Subsidiaries and (ii) all lawful
claims for labor, materials and supplies which, if unpaid, might by law become
a lien upon the property of the Company or any of its Subsidiaries; provided,
however, that the Company shall not be required to pay or discharge
or cause to be paid or discharged any such tax,


 


46

















 


assessment, charge or claim whose amount, applicability or validity is
being contested in good faith by appropriate proceedings; provided, that appropriate reserves
therefor are established in the Company’s consolidated financial statements in
accordance with GAAP.


 


(b)                                 The Company and Tax
Subsidiaries shall timely file or cause to be filed when due all Tax Returns
that are required to be filed by or with respect to the Company for taxable
years ending after the Closing Date and shall pay any Taxes due in respect of
such Tax Returns.


 


(c)                                  The Company shall be
liable for all transfer taxes arising from the issuance of the Notes.


 


(d)                                 The obligations of the
parties set forth in this Section 5.05 shall be unconditional and absolute
and shall remain in effect until the expiration of the relevant statute of
limitations.


 


SECTION 5.06  STAY, EXTENSION
AND USURY LAWS.


 


The Company
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 (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 5.07  RESTRICTED
PAYMENTS.


 


The Company shall
not, and shall not permit any of its Subsidiaries to, directly or indirectly,
(a) declare or pay any dividend or make any other payment or distribution on
account of the Company’s Equity Interests (including, without limitation, any
payment in connection with any merger or consolidation involving the Company)
or to the direct or indirect holders of the Company’s Equity Interests in their
capacity as such (other than dividends or distributions payable solely in
Equity Interests (other than Disqualified Stock) of the Company or dividends or
distributions payable to the Company or any Wholly Owned Subsidiary of the
Company), (b) purchase, redeem or otherwise acquire or retire for value any
Equity Interests of the Company or any direct or indirect parent of the Company
or other Affiliate of the Company, (c) make any principal payment on, or
purchase, redeem, defease or otherwise acquire or retire for value any
Indebtedness that is subordinated to the Notes, except at final maturity or (d)
make any Restricted Investment (all such payments and other actions set forth
in clauses (a) through (d) above being collectively referred to as “Restricted Payments”); provided,
however,
that the foregoing provisions shall not prohibit (i) any repurchase,
redemption or other acquisition or retirement for value by the Company of any
Equity Interests of the Company or any Subsidiary of the Company held by any
member of the Company’s (or any of its Subsidiaries’) management pursuant to
any management equity subscription agreement or stock option agreement; provided, that the aggregate price paid
for all such repurchased, redeemed, acquired or retired Equity Interests shall
not exceed $1.0 million in any twelve-month period plus the aggregate cash
proceeds received by the Company or any Subsidiary during such twelve-month
period from any reissuance of Equity Interests by the Company or any Subsidiary
to members of management of the Company and its Subsidiaries plus any proceeds
received during such 12-month period under key man insurance policies with
respect to such members of management, (ii) regularly scheduled payments of
interest on the Subordinated Notes and payment of principal of the Subordinated
Notes at stated maturity thereof, in each case, as provided in the Subordinated
Note Indenture, (iii) redemption of the Subordinated Notes in connection with
the Change of Control Offer, the


 


47

















 


Asset Sale Offer and in accordance with Section 3.08 hereof and
(iv) redemption or repurchase of the Holdings Note Shares and/or the
Subscription Shares pursuant to the exercise of the Put Option.


 


SECTION 5.08  DIVIDEND AND
OTHER PAYMENT RESTRICTIONS AFFECTING SUBSIDIARIES.


 


The Company shall
not, and shall not permit any of its Subsidiaries to, directly or indirectly,
create or otherwise cause or suffer to exist or become effective any
encumbrance or restriction on the ability of any Subsidiary to (a)(i) pay
dividends or make any other distributions to the Company or any of its
Subsidiaries (A) on its Capital Stock or (B) with respect to any other interest
or participation in, or measured by, its profits or (ii) pay any indebtedness
owed to the Company or any of its Subsidiaries, (b) make loans or advances to
the Company or any of its Subsidiaries or (c) transfer any of its properties or
assets to the Company or any of its Subsidiaries, except for such encumbrances
or restrictions existing under or by reason of (i) Existing Indebtedness as in
effect on the date of this Indenture, and any amendments, modifications,
restatements, renewals, supplements, refundings, replacements or refinancings
thereof; provided, however, that
such amendments, modifications, restatements, renewals, supplements,
refundings, replacement or refinancings are no more restrictive, taken as a
whole, with respect to such dividend and other payment restrictions than those
contained in the agreements governing such Indebtedness as in effect on the
date of this Indenture, (ii) the Credit Agreement as in effect as of the date
of this Indenture, and any amendments, modifications, restatements, renewals,
increases, supplements, refundings, replacements or refinancings thereof; provided,
however, that such amendments, modifications, restatements,
renewals, increases, supplements, refundings, replacement or refinancings (x)
are no more restrictive, taken as a whole, with respect to such dividend and
other payment restrictions than those contained in the Credit Agreement as in
effect on the date of this Indenture and (y) contain no restrictions on the
ability of (I) DFG to pay dividends or make distributions in an amount
sufficient to enable the Company to make payments of interest on the Notes as
they become due in cash or (II) the Company to make such payments,
(iii)(x) the DFG Senior Notes and the DFG Senior Notes Indenture as in
effect on the date of this Indenture, and any amendments, modifications,
restatements, renewals, supplements, refundings, replacements or refinancings
thereof; provided, however, that
such amendments, modifications, restatements, renewals, supplements,
refundings, replacement or refinancings are no more restrictive, taken as a
whole, with respect to such dividend and other payment restrictions than those
contained in such Indebtedness as in effect on the date of this Indenture, and
(y) this Indenture, the Notes, the Subordinated Note Indenture and the
Subordinated Notes, (iv) applicable law, (v) by reason of customary
non-assignment provisions in leases, licenses and other agreements entered into
in the ordinary course of business and consistent with past practices, (vi)
purchase money obligations for property acquired in the ordinary course of
business that impose restrictions of the nature described in clause (c) above
on the property so acquired, (vii) an agreement for the sale or other
disposition of all or substantially all of the Equity Interests or assets of a
Subsidiary of the Company otherwise permitted by this Indenture that restricts
distributions or dispositions of assets by such Subsidiary pending the sale or
disposition, (viii) provisions with respect to the disposition or distribution
of funds or other property in partnership, joint venture and other similar
agreements entered into in the ordinary course of business, (ix) Liens securing
Indebtedness otherwise permitted to be incurred pursuant to the provisions of
this Section 5.08 that limit the right of the Company or any of its
Subsidiaries to dispose of the asset or assets subject to such Lien, (x) to the
extent not permitted by the proviso to clause (i) above, Permitted Refinancing
Indebtedness; provided, however,
that the restrictions contained in the agreements governing such Permitted
Refinancing Indebtedness are no more restrictive than those contained in the
agreements governing the Indebtedness being refinanced or (xi) any instrument
governing Indebtedness or Capital Stock of a Person acquired by the Company or
any of its Subsidiaries as in effect at the time of such acquisition (except to
the extent such instrument was created or such Indebtedness was incurred in
connection with or in contemplation of such acquisition), which encumbrance or
restriction is not applicable to any Person, or the properties or assets of any
Person, other than the Person, or the property


 


48

















 


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.


 


SECTION 5.09  INCURRENCE OF
INDEBTEDNESS AND ISSUANCE OF PREFERRED STOCK.


 


(a)                                  The Company shall
not, and shall not permit any of its 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 shall not permit any of its Subsidiaries to
issue any shares of preferred stock; provided, however, that the Company and
DFG may incur Indebtedness (including Acquired Debt), and the Guarantors may
guarantee such Indebtedness of DFG, and the Company and DFG may issue shares of
Disqualified Stock, if (i) 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 is issued (in
either case, the “Incurrence Date”) would have been at least 1.5 to 1 and (ii)
the ratio (the “Debt Ratio”) of (A) the aggregate principal amount of
consolidated Indebtedness of the Company and its Subsidiaries outstanding as of
the date of the Company’s most recently ended fiscal quarter for which internal
financial statements are available immediately preceding the Incurrence Date to
(B) the Consolidated Cash Flow of the Company for the Company’s most recently
ended four full fiscal quarters for which internal financial statements are
available immediately preceding the Incurrence Date would have been less than
5.0 to 1; provided,
however, that for the purposes of calculating the aggregate
principal amount of consolidated Indebtedness of the Company and its
Subsidiaries as of any date (i) the aggregate principal amount of the
outstanding Notes as of such date shall be deemed to be the principal amount
thereof as of such date and (ii) the aggregate principal amount of the
Indebtedness outstanding under any revolving credit facility as of such date
shall be deemed to be the daily average amounts outstanding thereunder during
the three months ending on such date. 
Each of the foregoing ratios shall be calculated on a pro forma basis
giving effect to (i)(A) the incurrence of the Indebtedness or issuance of the
Disqualified Stock giving rise to such calculation, (B) any other incurrence of
Indebtedness (other than revolving credit borrowings) or issuance of
Disqualified Stock subsequent to the commencement of the four-quarter reference
period and (C) in each such case, the application of the net proceeds therefrom
as if such incurrence, issuance and application had occurred at the beginning
of the four-quarter reference period and (ii) any acquisitions that have been
made by the Company or any of its Subsidiaries, including through mergers or
consolidations and including any related financing transactions, during such
four-quarter reference period or subsequent thereto and prior to the
Calculation Date as if they occurred on the first day of such four-quarter
reference period.  In addition, the
Consolidated Cash Flow for any such four-quarter reference period shall be
calculated (i) to include the Consolidated Cash Flow of the acquired entities
(adjusted to include any expense or cost reductions for which pro forma treatment
would be permitted under Article 11 of Regulation S-X promulgated under
the Securities Act as of the date of this Indenture), (ii) without giving
effect to clause (iii) of the proviso set forth in the definition of
Consolidated Net Income and (iii) to exclude the Consolidated Cash Flow
attributable to discontinued operations, as determined in accordance with GAAP,
and to operations or businesses disposed of prior to the Calculation Date.  In calculating the Fixed Charges as of any
Calculation Date, the Fixed Charges attributable to discontinued operations, as
determined in accordance with GAAP, and to operations or businesses disposed of
prior to the Calculation Date shall be excluded, but only to the extent that
the obligations giving rise to such Fixed Charges will not be obligations of
the referent Person or any of its Subsidiaries following the Calculation Date.


 


(b)                                 The foregoing
provisions shall not apply to (i) the incurrence by DFG (and Guarantees thereof
by the Company and the Guarantors) of Indebtedness for working capital purposes
and letters of credit pursuant to the Credit Agreement (with letters of credit
being deemed to have a principal amount equal to the maximum potential
liability of the Company and its Subsidiaries


 


49

















 


thereunder) in an aggregate principal amount not to exceed as of any
date of incurrence the lesser of (1) $55.0 million, minus the amount of any
permanent reduction in the amount of borrowings permitted thereunder in accordance
with the terms thereof, and (2) the amount of the Borrowing Base,
(ii) the incurrence by DFG (and Guarantees thereof by the Company and the
Guarantors) of the Indebtedness represented by (1) DFG Senior Notes issued on
the Closing Date in the aggregate principal amount not to exceed $220.0 million
and (2) DFG Senior Notes issued after the Closing Date pursuant to the DFG
Senior Notes Indenture so long as the Net Proceeds of such issuances are used,
substantially contemporaneously with such issuances, solely to redeem the Notes
and the Subordinated Notes in compliance with the voluntary redemption
provisions of this Indenture and the Subordinated Note Indenture,
(iii) the incurrence by the Company and its Subsidiaries of the Existing
Indebtedness, (iv) the incurrence by the Company and its Subsidiaries of the
Indebtedness represented by the Notes and the Subordinated Notes, (v) the
incurrence by the Company or any of its 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 Subsidiary, in
an aggregate principal amount not to exceed $5.0 million at any time
outstanding, (vi) the incurrence by the Company or any of its Subsidiaries of
Permitted Refinancing Indebtedness in exchange for, or the net proceeds of
which are used to extend, refinance, renew, replace, defease or refund,
Indebtedness that was permitted by this Indenture to be incurred, (vii) the
incurrence by the Company or any of its Subsidiaries of intercompany
Indebtedness between or among the Company and any of its Wholly Owned Subsidiaries;
provided,
however, that (A) if the Company is the obligor on such
Indebtedness, such Indebtedness is expressly subordinate to the payment in full
of all Obligations with respect to the Notes and (B)(1) 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 Wholly Owned Subsidiary and
(2) any sale or other transfer of any such Indebtedness to a Person that
is not either the Company or a Wholly Owned Subsidiary shall be deemed, in each
case, to constitute an incurrence of such Indebtedness by the Company or such
Subsidiary, as the case may be, (viii) the incurrence by the Company or any of
its Subsidiaries of Hedging Obligations that are incurred for the purpose of
fixing or hedging (A) interest rate risk with respect to any floating rate
Indebtedness that is permitted by the terms of this Indenture to be
outstanding, or (B) currency exchange risk in connection with existing
financial obligations and not for purposes of speculation, (ix) the incurrence
by the Company or any of its Subsidiaries of Indebtedness (in addition to
Indebtedness permitted by any other clause of this paragraph) in an aggregate
principal amount (or accreted value, as applicable) at any time outstanding not
to exceed $10.0 million, (x) the incurrence by the Company or any of its
Subsidiaries of Earn-out Obligations in an aggregate amount not to exceed $5.0
million at any time outstanding and (xi) the incurrence by a Receivables
Subsidiary of Indebtedness in connection with a Qualified Receivables
Transaction that is without recourse (other than pursuant to representations,
warranties, covenants and indemnities entered into in the ordinary course of
business in connection with a Qualified Receivables Transaction) to DFG or any
of its Subsidiaries or any of their respective assets and that is not
Guaranteed by DFG or any of its Subsidiaries.


 


(c)                                  Notwithstanding any
provision contained in this Section 5.09 to the contrary, after the
Closing Date, neither the Company shall, nor shall it permit any of its
Subsidiaries to, incur any Indebtedness to LGP (other than (i) as a Purchaser
and (ii) solely as a counterparty to any Hedging Obligation) unless such
Indebtedness constitutes Subordinated Indebtedness.


 


(d)                                 For purposes of
determining compliance with this Section 5.09, in the event that an item
of Indebtedness meets the criteria of more than one of the categories of
Indebtedness described in clauses (i) through (ix) of paragraph (b) of this Section 5.09,
the Company shall, in its sole discretion, classify such item of Indebtedness
in any manner that complies with this Section 5.09 and will only be
required to include the amount and type of such Indebtedness in one of such
clauses or pursuant to Section 5.09(a), and may re-classify any such item
of Indebtedness from time to time among such clauses


 


50

















 


or the first paragraph of this Section 5.09, so long as such item
meets the applicable criteria for such category.  Accrual of interest, accretion of accreted value and issuance of
securities paid-in-kind shall not be deemed to be an incurrence of Indebtedness
for purposes of this Section 5.09.


 


SECTION 5.10  ASSET SALES.


 


(a)                                  The Company shall
not, and shall not permit any of its Subsidiaries to (i) sell, lease, convey or
otherwise dispose of any assets (including, without limitation, by way of a
sale and leaseback) other than sales of inventory in the ordinary course of
business consistent with past practices (provided,
that the sale, lease, conveyance or other disposition of all or substantially
all of the assets of the Company and its Subsidiaries taken as a whole shall be
governed by the provisions of Section 5.13 and/or Section 6.01 hereof
and not by the provisions of this Section 5.10) or (ii) issue or sell
Equity Interests of any of the Company’s Subsidiaries, in the case of either
clause (i) or (ii), whether in a single transaction or a series of related
transactions (A) that have a fair market value in excess of $1.0 million or (B)
for Net Proceeds in excess of $1.0 million (each of the foregoing, an “Asset Sale”), unless (i) the Company
(or the Subsidiary, as the case may be) receives consideration at the time of
such Asset Sale at least equal to the fair market value (evidenced by a
resolution of the Board of Directors set forth in an Officers’ Certificate
delivered to the Holders) of the assets or Equity Interests issued or sold or
otherwise disposed of and (ii) at least 80% of the consideration therefor
received by the Company or such Subsidiary is in the form of cash; provided,
however, that the amount of (A) any liabilities (as shown on
the Company’s or such Subsidiary’s most recent balance sheet) of the Company or
any Subsidiary (other than contingent liabilities and liabilities that are by
their terms subordinated to the Notes) that are assumed by the transferee of
any such assets pursuant to any arrangement releasing the Company or such
Subsidiary from further liability and (B) any notes or other obligations
received by the Company or any such Subsidiary from such transferee that are
immediately converted by the Company or such Subsidiary into cash (to the
extent of the cash received), shall be deemed to be cash for purposes of this
provision.  Notwithstanding the
foregoing, Asset Sales shall not be deemed to include (i) a transfer of assets
by the Company to a Wholly Owned Subsidiary, or by a Wholly Owned Subsidiary of
the Company to the Company or to another Wholly Owned Subsidiary, (ii) the
issuance of Equity Interests by a Wholly Owned Subsidiary to the Company or to
a Wholly Owned Subsidiary, (iii) a Restricted Payment or Permitted Investment
that is permitted by the provisions of Section 5.07 hereof, (iv) the
creation of Permitted Liens and the disposition of assets subject to such Liens
by or on behalf of the Person holding such Liens, (v) the sale of accounts
receivable pursuant to a Qualified Receivables Transaction and (vi) any
disposition of Cash Equivalents.


 


(b)                                 Within 360 days after
the receipt of any Net Proceeds from an Asset Sale, the Company or any
Subsidiary may apply such Net Proceeds (i) to permanently reduce Indebtedness
ranking, actually or structurally, senior to or pari passu with the Notes
(and to correspondingly reduce commitments with respect thereto) or (ii) to the
acquisition of a controlling interest in another business, the making of a
capital expenditure or the acquisition of other long-term assets, in each case,
in the same or a similar line of business as the Company was engaged in on the
date of this Indenture.  Pending the
final application of any such Net Proceeds, the Company may temporarily reduce
revolving credit Indebtedness under the Credit Agreement or otherwise invest
such Net Proceeds in any manner that is not prohibited by this Indenture.  Any Net Proceeds from Asset Sales that are
not applied or invested as provided in the first sentence of this paragraph
shall be deemed to constitute “Excess
Proceeds”.  When the
aggregate amount of Excess Proceeds exceeds $5.0 million, the Company shall
make an Asset Sale Offer pursuant to Section 3.10 hereof to all Holders of
the Notes and all holders of the Subordinated Notes to purchase the maximum
principal amount of Notes and Subordinated 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 and Liquidated
Damages, if any, thereon to the date of purchase, in accordance with the
procedures set forth in Section 3.10 hereof.  To the extent that


 


51

















 


the aggregate principal amount of the Notes and the Subordinated Notes
tendered pursuant to an Asset Sale Offer is less than the Excess Proceeds, the
Company may use any remaining Excess Proceeds for general corporate
purposes.  If the aggregate principal
amount of the Notes and the Subordinated Notes surrendered by Holders of Notes
and holders of Subordinated Notes, respectively, collectively exceeds the amount
of Excess Proceeds, the Company shall select the Notes and the Subordinated
Notes to be purchased on a pro rata basis. 
Upon completion of such offer to purchase, the amount of Excess Proceeds
shall be reset at zero.


 


SECTION 5.11  TRANSACTIONS
WITH AFFILIATES.


 


The Company shall
not, and shall not permit any of its 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
contract, agreement, understanding, loan, advance or Guarantee with, or for the
benefit of, any Affiliate (each of the foregoing, an “Affiliate Transaction”), unless
(i) such Affiliate Transaction is on terms that are no less favorable to
the Company or the relevant Subsidiary than those that would have been obtained
in a comparable transaction by the Company or such Subsidiary with an unrelated
Person and (ii) the Company delivers to the Holders (A) with respect to any
Affiliate Transaction or series of related Affiliate Transactions involving
aggregate consideration in excess of $1.0 million, a resolution of the Board of
Directors set forth in an Officers’ Certificate certifying that such Affiliate
Transaction complies with clause (i) above and that such Affiliate Transaction
has been approved by a majority of the disinterested members of the Board of
Directors and (B) with respect to any Affiliate Transaction or series of
related Affiliate Transactions involving aggregate consideration in excess of
$5.0 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; provided, however, that the
following shall not be deemed to be Affiliate Transactions (i) the payment
of Earn-out Obligations pursuant to agreements entered into at such time as the
recipient of such payments was not an Affiliate of the Company or such
Subsidiary, (ii) any employment agreement entered into by the Company or any of
its Subsidiaries in the ordinary course of business and consistent with the
past practice of the Company or such Subsidiary, (iii) transactions
between or among the Company and/or its Subsidiaries, (iv) Restricted Payments
and Permitted Investments that are permitted by the provisions of
Section 5.07 hereof, (v) the payment of the fees, expenses and other
amounts payable by the Company and its Subsidiaries in connection with the
Transactions that shall not exceed $13.0 million and shall be reasonably
consistent with the schedule of fees provided by the Company to the
Purchasers prior to the Closing Date, (vi) the payment of reasonable and
customary regular fees to, and indemnity provided on behalf of, officers,
directors and employees of the Company or any Subsidiary of the Company, (vii)
the payment of fees and other amounts payable by the Company and its
Subsidiaries under the Management Services Agreement (or any agreement
extending or replacing the Management Services Agreement which contains the
same terms with respect to fees and other terms no less favorable to the
Company and its Subsidiaries) and (viii) the performance of any of the
Financing Documents as in effect as of the date of this Indenture or any
transaction contemplated thereby (including pursuant to any amendment thereto
so long as any such amendment is not disadvantageous to the Holders of the
Notes in any material respect). 
Notwithstanding anything in this Indenture to the contrary, neither the
Company nor any of its Subsidiaries shall pay any fees to LGP: (1) on any date
other than any Interest Payment Date on which the entire interest due on the
Notes on such Interest Payment Date is paid in cash; (2) if a Default or an
Event of Default is then continuing or may result from such payment; or (3) in
the amount on any Interest Payment Date on which payment of such fees is
permitted pursuant to clauses (1) and (2) above in excess of $500,000 plus any
amounts available for such payments, but not paid, on prior Interest Payment
Dates solely by reason of clauses (1) and/or (2) above; provided, that in no event shall the
aggregate amount of all such fees paid to LGP from the Closing Date through and
including November 15, 2008 exceed $5.0 million.


 


52

















 


SECTION 5.12  LIENS.


 


The Company shall
not, and shall not permit any of its Subsidiaries to, directly or indirectly,
create, incur, assume or suffer to exist any Lien on any asset now owned or
hereafter acquired, or any income or profits therefrom or assign or convey any
right to receive income therefrom, other than Permitted Liens.


 


SECTION 5.13  CORPORATE
EXISTENCE.


 


Subject to
Article Six 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
Subsidiaries, in accordance with the respective organizational documents (as
the same may be amended from time to time) of the Company or any such
Subsidiary and (ii) the rights (charter and statutory), licenses and franchises
of the Company and its Subsidiaries; provided,
however, 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 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 reasonably likely to result in a Material Adverse Effect.


 


SECTION 5.14  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 a multiple thereof) of each
Holder’s Notes at an offer price in cash equal to 101% of the Current Accretion
Amount as of the Change of Control Payment Date, plus accrued and unpaid
interest that is required to be paid in cash on the next succeeding Interest
Payment Date (such accrued interest to
be computed for actual days elapsed to the Change of Control Payment Date)
and Liquidated Damages, if any, thereon to the Change of Control Payment Date
(the “Change of Control Payment”).  The Company shall comply, to the extent
applicable, with the requirements of Section 14(e) of, and Rule 14e-1
under, the Exchange Act and any other securities laws and regulations
thereunder in connection with the repurchase of the Notes as a result of a
Change of Control.  To the extent that
the provisions of any securities laws or regulations conflict with the
provisions of this Indenture, 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 its compliance with such securities laws or regulations.


 


Within 25 days following any Change of Control, the Company shall mail
a notice to each Holder with a copy to the Trustee stating:


 


(1)                                  that the Change of
Control Offer is being made pursuant to this Section 5.14 and that all
Notes tendered will be accepted for payment;


 


(2)          the purchase price and the purchase date,
which shall be at least 30 but no more than 60 days from the date on which the
Company mails notice of the Change of Control (the “Change of Control Payment Date”);


 


(3)          that any Notes not tendered will continue to
accrue interest and Liquidated Damages, if any;


 


(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 and
Liquidated Damages, if any, after the Change of Control Payment Date;


 


53

















 


(5)          that Holders electing to have any Notes
purchased pursuant to a Change of Control Offer shall 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 Paying Agent or Depositary, as applicable, 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 shall be entitled to withdraw
their election if the Paying Agent or Depositary, as applicable, 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
no less than $1,000 in principal amount.


 


(b)                                 On
the Change of Control Payment Date, the Company shall, to the extent lawful,
(i) accept for payment all Notes or portions thereof properly tendered pursuant
to the Change of Control Offer, (ii) deposit with the Paying Agent an amount
equal to the Change of Control Payment in respect of all Notes or portions
thereof so tendered and (iii) deliver or cause to be delivered to the Trustee
the Notes so accepted together with an Officers’ Certificate stating the
aggregate principal amount of Notes or portions thereof being purchased by the
Company.  The Paying Agent shall
promptly mail to each Holder of Notes so tendered the Change of Control Payment
for such Notes, and the Trustee shall promptly authenticate and mail (or cause
to be transferred by book-entry) to each Holder a new Note equal in principal
amount to any unpurchased portion of the Notes surrendered, if any; provided
that each such new Note shall be in a principal amount of no less than
$1,000.  The Company shall publicly announce the results of the
Change of Control Offer on or as soon as practicable after the Change of
Control Payment Date.


 


(c)                                  The
Company shall not be required to make a Change of Control Offer upon a Change
of Control if a third party makes the Change of Control Offer in a manner, at
the times and otherwise in compliance with the requirements set forth in this
Section 5.14 and such third party purchases all Notes validly tendered and
not withdrawn under such Change of Control Offer.


 


SECTION 5.15  SALE AND
LEASEBACK TRANSACTIONS.


 


The Company shall
not, and shall not permit any of its Subsidiaries to, enter into any sale and
leaseback transaction; provided, however, that the Company or
DFG may enter into a sale and leaseback transaction if (a) the Company or DFG
could have (i) incurred Indebtedness in an amount equal to the Attributable
Debt relating to such sale and leaseback transaction pursuant to the Fixed
Charge Coverage Ratio and Debt Ratio tests set forth in Section 5.09(a)
hereof and (ii) incurred a Lien to secure such Indebtedness pursuant to the
provisions of Section 5.12 hereof, (b) the gross cash proceeds of
such sale and leaseback transaction are at least equal to the fair market value
(as determined in good faith by the Board of Directors) of the property that is
the subject of such sale and leaseback transaction and (c) the transfer of
assets in such sale and leaseback transaction is permitted by, and the Company
applies the proceeds of such transaction in compliance with, the provisions of
Section 5.10 hereof.


 


SECTION 5.16  LIMITATION ON
ISSUANCES AND SALES OF CAPITAL STOCK OF SUBSIDIARIES.


 


The Company
(a) shall not, and shall not permit any Subsidiary of the Company to,
transfer, convey, sell, lease or otherwise dispose of any Capital Stock of any
Subsidiary of the Company to any


 


54

















 


Person (other than the Company or a Wholly Owned Subsidiary of the
Company), unless (i) such transfer, conveyance, sale, lease or other
disposition is (x) made pursuant to clause (viii) of the definition of the “Permitted Investments” or (y) of all the
Capital Stock of such Subsidiary and (ii) the Net Proceeds from such transfer,
conveyance, sale, lease or other disposition are applied in accordance with the
provisions of Section 5.10 hereof (without regard, in the case of the
foregoing clause (i)(x), to the provisions of Section 5.10(b)(ii)); provided,
however,
that this clause (a) shall not apply to any pledge of Capital Stock of any
Subsidiary of the Company securing Indebtedness under the Credit Agreement and
under the DFG Senior Notes Documents and (b) shall not permit any Subsidiary of
the Company to issue any of its Equity Interests (other than, if necessary,
shares of its Capital Stock constituting directors’ qualifying shares) to any
Person other than to the Company or a Wholly Owned Subsidiary of the Company.


 


SECTION 5.17  PAYMENTS FOR
CONSENTS.


 


Neither the
Company nor any of its Subsidiaries shall, directly or indirectly, pay or cause
to be paid any consideration, whether by way of interest, fee or otherwise, to
any Holder of any Notes in consideration 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 concurrently offered to be
paid or is concurrently 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 5.18  COMPLIANCE WITH
LAW, MAINTENANCE OF PROPERTIES.


 


(a)                                  The Company will, and
will cause each of its Subsidiaries to, comply with all Applicable Laws and
will obtain and maintain, and will cause each of its Subsidiaries to obtain and
maintain, all Permits necessary to the ownership of their respective properties
or to the conduct of their respective businesses, in each case to the extent
necessary to ensure that any such non-compliance with Applicable Law or any
failure to obtain or maintain such Permits, individually or in the aggregate,
would not reasonably be expected to have a Material Adverse Effect.


 


(b)                                 The Company will cause
all properties used or useful in the conduct of its business or the business of
any of its Subsidiaries to be maintained and kept in good condition, repair and
working order and supplied with all necessary equipment and will cause to be
made all necessary repairs, renewals, replacements, betterments and
improvements thereof, all as in the judgment of the Company may be necessary so
that the business carried on in connection therewith may properly and
advantageously be conducted at all times; provided, however, that the foregoing
shall not prevent the Company from discontinuing the operation or maintenance
of any of such properties if (i) the Board of Directors determines that such
discontinuance is desirable in the conduct of its business or the business of
any Subsidiary and (ii) such discontinuance is not reasonably likely to result
in a Material Adverse Effect.


 


SECTION 5.19  INSURANCE.


 


The Company shall,
and shall cause its Subsidiaries to, maintain, with financially sound and
reputable insurers, insurance with respect to their respective properties and
business against such casualties and contingencies, of such types, on such
terms and in such amounts (including deductibles, co-insurance and
self-insurance, if adequate reserves are maintained with respect thereto) as is
customary in the case of entities of established reputations engaged in the
same or a similar business and similarly situated.


 


55

















 


SECTION 5.20  FURTHER
ASSURANCES.


 


The Company shall,
upon the request of the Trustee, execute and deliver such further instruments
and do such further acts as may be reasonably necessary or proper to carry out
more effectively the provisions of this Indenture.


 


ARTICLE 6

SUCCESSORS


 


SECTION 6.01  MERGER,
CONSOLIDATION, OR SALE OF ASSETS.


 


The Company shall
not consolidate or merge with or into (whether or not the Company is the
surviving corporation), or directly and/or indirectly through its Subsidiaries
sell, assign, transfer, lease, convey or otherwise dispose of all or
substantially all of the properties and assets of the Company and its
Subsidiaries taken as a whole in one or more related transactions, to any other
Person unless (a)(i) the Company is the surviving corporation or (ii) the
entity or the Person formed by or surviving any such consolidation or merger
(if other than the Company) or to which such sale, assignment, transfer, lease,
conveyance or other disposition shall have been made (the entity or Person
described in this clause (ii), the “Successor
Company”) is a corporation organized or existing under the laws of
the United States, any state thereof or the District of Columbia, (b) the
Successor Company assumes all the obligations of the Company (x) under the
Notes and this Indenture pursuant to an amendment or supplement to this Indenture
in a form reasonably satisfactory to the Trustee and (y) under each other
instrument, document or agreement entered into by the Company in connection
herewith pursuant to an amendment or supplement to such other instrument,
document or agreement in a form customary for such assumption, (c) immediately
after such transaction no Default or Event of Default exists and (d) the
Company or the Successor Company (i) will have Consolidated Net Worth
immediately after the transaction equal to or greater than the Consolidated Net
Worth of the Company immediately preceding the transaction and (ii) will, at
the time of such transaction and after giving pro forma effect thereto as if
such transaction 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 and Debt Ratio tests set forth in
Section 5.09(a) hereof.


 


SECTION 6.02  SUCCESSOR
COMPANY SUBSTITUTED.


 


Upon any
consolidation of the Company with, or merger of the Company into, any other
Person or any transfer, conveyance, sale, lease or other disposition of all or
substantially all of the properties and assets of the Company and its
Subsidiaries taken as a whole in one or more related transactions in accordance
with Section 6.01, the Successor Company shall succeed to, and be
substituted for, and may exercise every right and power of, the Company under
this Indenture and the Notes with the same effect as if such Successor Company
had been named as the Company herein, and thereafter, except in the case of a
lease, the predecessor Company shall be relieved of all obligations and
covenants under this Indenture and the Notes.


 


ARTICLE 7

DEFAULTS AND REMEDIES


 


SECTION 7.01  EVENTS OF
DEFAULT.


 


An “Event of Default” occurs if:


 


56

















 


(a)                                  the Company defaults
in the payment when due of interest or Liquidated Damages, if any, on the Notes
and such default continues for a period of thirty (30) days;


 


(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;


 


(c)                                  the Company fails to
comply with the provisions of Sections 3.10, 5.07 through 5.12, inclusive, 5.14
through 5.17, inclusive, or Article 6 hereof;


 


(d)                                 the Company fails to
observe or perform any other covenant or agreement of the Company under this
Indenture or other Transaction Documents or the Notes and the Default continues
for a period of 30 days after written notice to the Company by the Trustee or
any Holder;


 


(e)                                  any representation,
warranty, certification or statement made or deemed to have been made by or on
behalf of the Company or any Subsidiary of the Company or by any officer of the
Company or any Subsidiary of the Company in respect of any Transaction Document
or in any statement or certificate at any time given by or on behalf of the
Company or any of its Subsidiaries or by any officer of the Company or any of
its Subsidiaries in writing pursuant hereto or in connection herewith or
therewith shall be false in any material respect on the date as of which made;


 


(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 Subsidiaries (or payment of which is Guaranteed by
the Company or any of its Subsidiaries), whether such Indebtedness or Guarantee
now exists, or is created after the date of this Indenture, which default (1)
constitutes a failure to pay any portion of the principal of or premium, if
any, or interest on such Indebtedness when due and payable after the expiration
of any applicable grace period provided in such Indebtedness on the date of
such default (a “Payment Default”)
or (2) shall have resulted in such Indebtedness being accelerated or otherwise
becoming or being declared due and payable prior to its stated 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
$5.0 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, or a final and legally enforceable arbitration award or
final and legally enforceable arbitration awards for the payment of money are
entered pursuant to a binding arbitration by an arbitrator or arbitrators of
competent jurisdiction, in each case, against the Company or any of its
Subsidiaries and such judgment or judgments and award or awards remain unpaid
and undischarged for a period (during which execution shall not be effectively
stayed) of 60 days, provided that the aggregate of all such undischarged
judgments and awards exceeds $5.0 million;


 


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


 


(i)                                     commences
a voluntary case or proceeding,


 


(ii)                                  consents
to the entry of a decree or an order for relief against it in an involuntary
case or proceeding or to the commencement of any case or proceeding against it,


 


57

















 


(iii)                               consents
to the filing of a petition or to the appointment of or taking possession by a
Custodian of it or for all or any substantial part of its property,


 


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


 


(v)                                 generally
is not paying, or admits in writing that it is not able to pay, its debts as
they become due; or


 


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


 


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


 


(2)                                  appoints a Custodian of the Company or
any of its Significant Subsidiaries or any group of Subsidiaries that, taken as
a whole, would constitute a Significant Subsidiary, or for all or any substantial
part of the property of the Company or any of its Significant Subsidiaries or
any group of Subsidiaries that, taken as a whole, would constitute a
Significant Subsidiary, or approves as properly filed a petition seeking
reorganization, arrangement, adjustment or composition of or in respect of any
of the foregoing; or


 


(3)                                  orders the winding up or liquidation of
the Company or any of its Significant Subsidiaries or any group of Subsidiaries
that, taken as a whole, would constitute a Significant Subsidiary, or adjudges
any of them bankrupt or insolvent;


 


and any such order
or decree remains unstayed and in effect for 60 consecutive days.


 


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


 


SECTION 7.02  ACCELERATION.


 


If any Event of Default (other than an Event of Default specified in
subsection (h) or (i) of Section 7.01 hereof) with respect to the
Company, any Significant Subsidiary or any group of Significant Subsidiaries
that, taken as a whole, would constitute a Significant Subsidiary occurs and is
continuing, then and in every such case the Trustee or the Holders of
(a) more than 50% in principal amount of the Notes at the time outstanding
until the earlier of (i) the Exchange Offer having been consummated by the
Company or (ii) a registration statement permitting the resales of the
Notes having been declared effective by the SEC and (b) thereafter, 25% or
more in principal amount of the then outstanding Notes may declare the Default
Amount of all the Notes to be due and payable immediately, by a notice in
writing to the Company (with a copy to the Trustee), and upon any such
declaration such Default Amount and any accrued interest and Liquidated
Damages, if any, shall become immediately due and payable.  If an Event of Default specified in
subsection (h) or (i) of Section 7.01 hereof occurs and is
continuing, the Default Amount of and any accrued interest and Liquidated
Damages, if any, on the outstanding Notes shall automatically, and without any
declaration or other action on the part of any Holder, become immediately due
and payable.


 


58

















 


The “Default Amount” of any Note as of any date
of acceleration shall be all principal of, accrued and unpaid interest on
(including Default Interest and any Liquidated Damages), any premium on, and
all other amounts owing in respect of, the Note.


 


SECTION 7.03  OTHER REMEDIES.


 


If a default in
the payment when due of interest on (including any Liquidated Damages),
principal of, or premium, if any, on, the Notes or if an Event of Default has
occurred and is continuing, then in each case the Notes will accrue Default
Interest plus the stated interest rate on the Notes until such time as no such
Default or such Event of Default shall be continuing (to the extent that the
payment of such interest shall be legally enforceable).  Default Interest shall be payable in cash on
demand.  Any Default Interest that is
not paid on demand shall bear interest (which shall also be payable in cash on
demand) at 2% per annum plus the stated interest rate on the Notes (to the
extent that the payment of such interest is legally enforceable), from the date
of such demand until the amount so demanded is paid or made available for
payment.


 


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.  All remedies are cumulative to
the extent permitted by law.


 


SECTION 7.04  WAIVER OF PAST
DEFAULTS.


 


The Holders of at
least a majority in aggregate principal amount of the Notes then outstanding by
notice to the Trustee may on behalf of the Holders of all of the Notes waive
any existing Default or Event of Default and its consequences hereunder, except
a continuing Default or Event of Default (a) in the payment of principal of,
premium, if any, interest or Liquidated Damages, if any, on the Notes
(including in connection with an offer to purchase) or (b) in respect of a
covenant or provision hereof which under Section 10.02 cannot be modified
or amended without the consent of the Holder of each outstanding Note; provided, however,
that the Holders of at least 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
consequences if the rescission would not conflict with any judgment or decree
and if all existing Events of Default (except nonpayment of principal, premium,
if any, interest or Liquidated Damages, if any, that has become due solely
because of the acceleration) have been cured or waived.  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 7.05  CONTROL BY
MAJORITY.


 


Holders of at
least a majority in aggregate 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.  However, the Trustee may
refuse to follow any direction that conflicts with law or this Indenture, that
the Trustee determines may be unduly prejudicial to the rights of other Holders
of Notes or that may involve the Trustee in personal liability.


 


SECTION 7.06  LIMITATION ON SUITS.


 


A Holder of a Note
may pursue a remedy with respect to this Indenture or the Notes (other than the
right to accelerate as provided in Section 7.02 hereof) only if:


 


59

















 


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


 


(b)                                 the Holders of
(a) more than 50% in principal amount of the Notes at the time outstanding
until the earlier of (i) the Exchange Offer having been consummated by the
Company or (ii) a registration statement permitting the resales of the
Notes having been declared effective by the SEC and (b) thereafter, 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
reasonably 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.


 


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 7.07  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, if any, interest and Liquidated Damages,
if any, on any Note, on or after the respective due dates expressed in any such
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 7.08  COLLECTION SUIT
BY TRUSTEE.


 


If an Event of
Default specified in Section 7.01(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, if any, interest and Liquidated Damages, if any, 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 7.09  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) or their respective creditors or 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 8.07 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


 


60

















 


under Section 8.07 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 7.10  PRIORITIES.


 


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


 


First: to the Trustee, its agents and attorneys for amounts
due under Section 8.07 hereof, including payment of all reasonable
compensation, expense and liabilities incurred, and all advances made, by the
Trustee and the costs and expenses of collection;


 


Second: to Holders of Notes for amounts due and
unpaid on the Notes for principal, premium, if any, interest and Liquidated
Damages, if any, ratably, without preference or priority of any kind, according
to the amounts due and payable on the Notes for principal, premium, if any,
interest and Liquidated Damages, if any, 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 7.10.


 


SECTION 7.11  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, 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 7.07 hereof or a suit by Holders
of more than 10% in aggregate principal amount of the then outstanding Notes.


 


SECTION 7.12  SUBORDINATION
OF SPECIAL MANDATORY REDEMPTION.


 


(a)                                  Until all
Indebtedness under the Credit Documents has been finally paid in full, all
commitments thereunder have been terminated and any contingent Indebtedness
thereunder has been fully cash collateralized, any payment obligation or
payment arising from or in respect of a Special Mandatory Redemption shall be
made only to the extent that the making of such Special Mandatory Redemption
has been approved in writing by the required holders of the Indebtedness under
the Credit Documents, which approval may be granted or denied in the sole and
absolute discretion of such holders, and which approval, if given, may be
withdrawn by written notice to the Company at any time prior to the date specified
for the Special Mandatory Redemption. 
Each Holder acknowledges by its acceptance of its Notes that any failure
by the Company to make any Special Mandatory Redemption shall not result in the
occurrence of a Default or an Event of Default, nor serve as a basis for
exercise of remedies consequent


 


61

















 


upon a Default or Event of Default or otherwise, unless such holders of
the Indebtedness under the Credit Agreement has given (and not withdrawn) its
prior written approval to the making of such Special Mandatory Redemption.  Each Holder further agrees by its acceptance
of its Notes that it will not take any action inconsistent with the rights of
the holders of Indebtedness under the Credit Documents to receive payment in
full of any amounts owing under the Credit Documents prior to the making of any
Special Mandatory Redemption by the Company. 
The provisions of this Section 7.12 apply only to a Special
Mandatory Redemption and shall not be construed to affect any other rights of
the Holders under this Indenture.


 


(b)                                 No right of any
present or future holder of Indebtedness under the Credit Documents to enforce
the provisions of this Section 7.12 shall be impaired by any act or
failure to act by the Company, any Holder or by the failure of any such holder
of Indebtedness under the Credit Documents to give any notices or take any
actions contemplated by this Indenture or otherwise.  No provision of any waiver or supplemental indenture may affect
in any way the rights of the holders of Indebtedness under the Credit Documents
without the prior written consent of such holders.


 


(c)                                  In the event that,
notwithstanding the foregoing, the Holders of the Notes shall have received any
Special Mandatory Redemption not permitted by this Section 7.12 as
evidenced by a written notice to the Trustee and the Holders to that effect,
then and in such event such Special Mandatory Redemption shall be returned to
the Trustee by the Holders for remittance to the Company and the Company shall
pay over and deliver such amount forthwith to the holders of Indebtedness under
the Credit Agreement in the same form received and, until so paid, the same
shall be held in trust by the Company or the Trustee, as the case may be, on
behalf of the Holders, or by such Holders, as the collateral of the holders of
Indebtedness under the Credit Documents. 
Only after the payment in full in cash or Cash Equivalents of all
amounts due or to become due on or in respect of Indebtedness under the Credit
Documents and, unless the holders of Indebtedness under the Credit Documents
shall have the ability to terminate such commitments, the termination of all
commitments in respect thereof, the Holders of the Notes shall be subrogated to
the rights of the Holders of Indebtedness under the Credit Documents to receive
payments and distributions of cash, property and securities applicable to such
Indebtedness until the amount of the Special Mandatory Redemption shall be paid
in full.  For purposes of such
subrogation, no payments or distributions to the holders of the Indebtedness
under the Credit Documents of any cash, property or securities to which the
Holders of the Notes or the Company on their behalf would be entitled except
for the provisions of this Section 7.12, and no payments pursuant to the
provisions of this Section 7.12 to the holders of Indebtedness under the
Credit Documents by Holders of the Notes or the Company on their behalf, shall,
as among the Company, its creditors other than holders of Indebtedness under
the Credit Documents and the Holders of the Notes, be deemed to be a payment or
distribution by the Company to or on account of the Special Mandatory
Redemption.  Each Holder of a Note, by
accepting such Note, acknowledges and agrees that the provisions of this
Section 7.12 are, and are intended to be, an inducement and a
consideration to each holder of any Indebtedness under the Credit Documents,
whether such Indebtedness was created or acquired before or after the issuance
of the Notes, to acquire and continue to hold, or to continue to hold, such
Indebtedness, and such holder of such Indebtedness shall be deemed conclusively
to have relied on such provisions in acquiring and continuing to hold, or in
continuing to hold, such Indebtedness. 
Neither the Company nor the Trustee shall be deemed to owe any fiduciary
duty to the holders of Indebtedness under the Credit Documents and neither the
Company nor the Trustee shall be liable to any such holders if it shall
mistakenly pay over or distribute to Holders or the Company or any other
Person, money or assets to which any holders of Indebtedness of the Company
under the Credit Documents shall be entitled by virtue of this
Section 7.12 or otherwise.  The
provisions of this Section 7.12 (including the defined terms used herein)
are for the benefit of the holders of Indebtedness under the Credit Documents
and shall be enforceable by them directly against any Holder and may not be
amended without the consent of the administrative agent


 


62

















 


under the Credit Agreement or, in the absence thereof, the holders
holding the majority in principal amount of such Indebtedness.


 


ARTICLE 8

TRUSTEE


 


SECTION 8.01  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 man would exercise or use under
the circumstances in the conduct of his 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, 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 subsection (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 7.05 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 subsections (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 Holder shall have offered
to the Trustee security and indemnity reasonably 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.


 


63

















 


SECTION 8.02  RIGHTS OF
TRUSTEE.


 


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


 


(b)                                 Before the Trustee
acts or refrains from acting, it may require an Officers’ Certificate or an
Opinion of Counsel 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 written 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 negligence of any agent appointed with due care.


 


(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.


 


SECTION 8.03  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.  However, 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.  The Trustee is also subject to Sections 8.10
and 8.11 hereof.


 


SECTION 8.04  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 8.05  NOTICE OF
DEFAULTS.


 


If a Default or
Event of Default occurs and is continuing and if it is actually known to 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,


 


64

















 


interest or Liquidated Damages, if any, 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 8.06  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)(1) and (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 stock exchange.


 


SECTION 8.07  COMPENSATION
AND INDEMNITY.


 


The Company shall
pay to the Trustee from time to time reasonable compensation 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  (including reasonable fees and expenses
of counsel) 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.


 


The Company shall
indemnify and hold harmless the Trustee against any and all losses, liabilities
or expenses incurred by it 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 8.07) 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 may be attributable to its
negligence or bad faith.  The Trustee
shall notify the Company promptly of any claim for which it may seek
indemnity.  Failure by the Trustee to so
notify the Company shall not relieve the Company of its obligations hereunder.  The Company shall defend the claim and the
Trustee shall 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 obligations of
the Company under this Section 8.07 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, premium, if any, interest and
Liquidated Damages, if any, 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 7.01(h) or (i) hereof occurs, the expenses and the compensation
for the services (including the


 


65

















 


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 8.08  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 Notes of at least a majority in aggregate 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 8.10 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;


 


(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 at least a majority in aggregate 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, the Company or the Holders of Notes of at
least 10% in aggregate 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 of a Note who has been a Holder of a Note
for at least six months, fails to comply with Section 8.10, such Holder of
a Note 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 of the
Notes.  The retiring Trustee shall
promptly transfer all property held by it as Trustee to the successor Trustee; provided that all sums owing to the
Trustee hereunder have been paid and subject to the Lien provided for in
Section 8.07 hereof. 
Notwithstanding replacement of the Trustee pursuant to this
Section 8.08, the Company’s obligations under Section 8.07 hereof
shall continue for the benefit of the retiring Trustee.


 


66

















 


SECTION 8.09  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 8.10  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 $500.0 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),(2) and (5).  The
Trustee is subject to TIA § 310(b).


 


SECTION 8.11  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 9

LEGAL DEFEASANCE AND COVENANT DEFEASANCE


 


SECTION 9.01  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 9.02 or 9.03 hereof be applied to all outstanding Notes
upon compliance with the conditions set forth below in this Article Nine.


 


SECTION 9.02  LEGAL
DEFEASANCE AND DISCHARGE.


 


Upon the Company’s
exercise under Section 9.01 hereof of the option applicable to this
Section 9.02, the Company shall, subject to the satisfaction of the
conditions set forth in Section 9.04 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 9.05 hereof
and the other Sections of this Indenture referred to in subsections (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 9.04 hereof, and as more fully set forth in such Section, payments
in respect of the principal of, premium, if any, interest and Liquidated
Damages, if any, on such Notes when such payments are due;


 


67

















 


(b)                                 the Company’s
obligations with respect to such Notes under Article Two and
Section 5.02 hereof;


 


(c)                                  the rights, powers,
trusts, duties and immunities of the Trustee hereunder and the Company’s
obligations in connection therewith; and (d) this Article Nine.


 


Subject to
compliance with this Article Nine, the Company may exercise its option
under this Section 9.02 notwithstanding the prior exercise of its option
under Section 9.03 hereof.


 


SECTION 9.03  COVENANT
DEFEASANCE.


 


Upon the Company’s
exercise under Section 9.01 hereof of the option applicable to this
Section 9.03, the Company shall, subject to the satisfaction of the
conditions set forth in Section 9.04 hereof, be released from its
obligations under the covenants contained in Sections 5.07, 5.08, 5.09, 5.10,
5.11, 5.12, 5.14, 5.15 and 5.16 hereof with respect to the outstanding Notes on
and after the date the conditions set forth below are satisfied (hereinafter, “Covenant Defeasance”), and the Notes shall
thereafter be deemed not “outstanding” for the purposes of any direction,
waiver, consent or declaration or act of Holders (and the consequences of any
thereof) in connection with such covenants, but shall continue to be deemed
“outstanding” for all other purposes hereunder (it being understood that such
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 7.01 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 9.01
hereof of the option applicable to this Section 9.03 hereof, subject to
the satisfaction of the conditions set forth in Section 9.04 hereof,
Sections 7.01(d) through 7.01(f) hereof shall not constitute Events of Default.


 


SECTION 9.04  CONDITIONS TO
LEGAL OR COVENANT DEFEASANCE.


 


The following
shall be the conditions to the application of either Section 9.02 or 9.03
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 U.S.  Government Obligations, or a combination thereof, in such amounts
as will be sufficient, in the opinion of a nationally recognized firm of
independent certified public accountants, to pay the principal of, premium, if
any, interest and Liquidated Damages, if any, on the outstanding Notes on the
Stated Maturity or on the applicable redemption date, as the case may be, and
the Company must specify whether the Notes are being defeased to Stated
Maturity or to a particular redemption date;


 


(b)                                 in the case of an
election under Section 9.02 hereof, the Company shall have delivered to
the Trustee an Opinion of Counsel 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


 


68

















 


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 9.03 hereof, the Company shall have delivered to
the Trustee an Opinion of Counsel 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 or Event of
Default shall have occurred and be continuing on the date of such deposit
(other than a Default or Event of Default resulting from the borrowing of funds
to be applied to such deposit) or insofar as Sections 7.01(h) or 7.01(i) hereof
is concerned, at any time in the period ending on the 91st day after the date
of deposit;


 


(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 Subsidiaries is a party or
by which the Company or any of its Subsidiaries is bound;


 


(f)                                    the Company shall
have delivered to the Trustee an Opinion of Counsel to the effect that after
the 91st day following the deposit, the trust funds will not be avoidable as a
preferential transfer under any applicable bankruptcy, insolvency,
reorganization or similar laws affecting creditors’ rights generally;


 


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


 


(h)                                 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; and (i)
such Legal Defeasance or Covenant Defeasance shall not result in the trust
arising from such deposit constituting an investment company as defined in the
Investment Company Act of 1940, as amended, or such trust shall be qualified
under such Act or exempt from regulation thereunder.


 


SECTION 9.05  DEPOSITED MONEY
AND U.S.  GOVERNMENT OBLIGATIONS TO BE
HELD IN TRUST; OTHER MISCELLANEOUS PROVISIONS.


 


Subject to
Section 9.06 hereof, all money and non-callable U.S.  Government Obligations (including the
proceeds thereof) deposited with the Trustee (or other qualifying trustee,
collectively for purposes of this Section 9.05, the “Trustee”) pursuant to Section 9.04
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 its own 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, interest and Liquidated
Damages, if any, 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 U.S. Government Obligations
deposited pursuant to


 


69

















 


Section 9.04 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 Nine 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 U.S. Government Obligations held by it as provided in
Section 9.04 hereof which, in the opinion of a nationally recognized firm
of independent certified public accountants expressed in a written
certification thereof delivered to the Trustee (which may be the opinion delivered
under Section  9.04(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 9.06  REPAYMENT TO
COMPANY


 


 Subject to Section 8.07 hereof, 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, interest or
Liquidated Damages, if any, on any Note and remaining unclaimed for two years
after such principal, premium, if any, interest or Liquidated Damages, if any,
has 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, as
a secured creditor, 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, however, 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 9.07  REINSTATEMENT.


 


If the Trustee or Paying
Agent is unable to apply any United States dollars or non-callable U.S.  Government Obligations in accordance with
Section 9.02 or 9.03 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 9.02 or 9.03 hereof until such
time as the Trustee or Paying Agent is permitted to apply all such money in
accordance with Section 9.02 or 9.03 hereof, as the case may be; provided,
however, that, if the Company makes any payment of principal of,
premium, if any, interest or Liquidated Damages, if any, 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 10

AMENDMENT, SUPPLEMENT AND WAIVER


 


SECTION 10.01  WITHOUT CONSENT
OF HOLDERS OF NOTES.


 


Notwithstanding
Section 10.02 of this Indenture, the Company and the Trustee may amend or
supplement this Indenture or the Notes without the consent of any Holder of a
Note:


 


(a)                                  to cure any
ambiguity, defect or inconsistency;


 


(b)                                 to provide for
uncertificated Notes in addition to or in place of certificated Notes;


 


70

















 


(c)                                  to provide for the
assumption of the Company’s obligations to Holders of the Notes in the case of
a merger or consolidation pursuant to Article Six hereof;


 


(d)                                 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 the
Holders of the Notes; or


 


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


 


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 8.02(b)
hereof, the Trustee shall join with the Company 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 10.02  WITH CONSENT OF
HOLDERS OF NOTES.


 


Except as provided
below in this Section 10.02, this Indenture and the Notes may be amended
or supplemented with the consent of the Holders of at least a majority in
aggregate principal amount of the Notes then outstanding (including, without
limitation, consents obtained in connection with a purchase of, or tender offer
or exchange offer for, Notes), and any existing Default or Event of Default or
compliance with any provision of this Indenture or the Notes may be waived with
the consent of the Holders of at least a majority in aggregate principal amount
of the then outstanding Notes (including consents obtained in connection with a
tender offer or exchange offer for the Notes). 
Notwithstanding the foregoing, the provisions of Sections 3.08 and 3.10
(to the extent the provisions thereof require pro
rata purchases of Notes and
Subordinated Notes) may not be amended without the consent of the holders of
the Subordinated Notes, who shall be deemed to be intended third-party
beneficiaries thereof.


 


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 8.02(b) hereof, the Trustee shall
join with the Company in the execution of such amended or supplemental
indenture unless such amended or supplemental indenture 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 10.02
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 10.02 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 7.04 and 7.07 hereof, the Holders of at least a majority in aggregate
principal amount of the Notes then outstanding may waive compliance in a
particular instance by the Company


 


71

















 


with any provision of this Indenture or the Notes.  However,
no such amendment or waiver may, without the prior written consent of the
Holder of each Note then outstanding and affected thereby:


 


(a)                                  subject any Holder to
any additional obligation;


 


(b)                                 reduce the principal
of (or Default Amount in respect thereof), or any premium or rate of interest
or Liquidated Damages on, any Note;


 


(c)                                  postpone the date
fixed for any payment of principal of (or Default Amount in respect thereof),
or any premium or interest or Liquidated Damages on, any Note;


 


(d)                                 change the ranking or
priority of the Notes or the percentage of the aggregate principal amount of
the Notes the Holders of which shall be required to consent or take any other
action under this Section 10.02 or any other provision of this Indenture;


 


(e)                                  amend or waive the
provisions of Section 3.10, 5.10 or 5.14 or any of the definitions used in
such Sections; or


 


(f)                                    make any changes in
the foregoing amendment and waiver provisions.


 


No amendment or waiver of this Indenture will extend to or affect any
obligation, covenant, agreement, Default or Event of Default not expressly
amended or waived or thereby impair any right consequent thereon.  As used herein, the term “Indenture” and
references thereto shall mean this Indenture as it may from time to time be
amended or supplemented.


 


SECTION 10.03  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 10.04  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 10.05  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 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.


 


72

















 


SECTION 10.06  TRUSTEE TO SIGN
AMENDMENTS, ETC.


 


The Trustee shall
sign any amended or supplemental indenture authorized pursuant to this
Article Ten if the amendment or supplement does not adversely 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 entitled to receive and (subject to
Section 8.01) shall be fully protected in relying upon, an Officer’s
Certificate and an Opinion of Counsel stating that the execution of such
amended or supplemental indenture is authorized or permitted by this Indenture.


 


ARTICLE 11

MISCELLANEOUS


 


SECTION 11.01  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 11.02  NOTICES.


 


Any notice or
communication by the Company 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’ addresses:


 


If to the Company:


 


DFG Holdings, Inc.


1436 Lancaster Avenue


Berwyn, Pennsylvania  19312


Telecopier No.: (610) 296-7844


Attention: Chief Financial Officer


 


With a copy to:


 


Irell & Manella LLP


1800 Avenue of the Stars, Suite 900


Los Angeles, California  90067


Telecopier No.: (310) 203-7199


Attention: Anthony T.  Iler, Esq.


 


If to the Trustee:


 


U.S. Bank National Association


Corporate Trust Service


225 Asylum Street, 23rd Floor


Hartford, Connecticut  06103


Telecopier No.: (860) 241-6881


Attention: Kathy A.  Larimore


 


With a copy to:


 


73

















 


Reid and Riege


One Financial Plaza


755 Main Street, 21st Floor


Hartford, Connecticut  06103


Telecopier No.: (860) 240-1002


Attention: Earl McMahon, Esq.


 


The Company 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.


 


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 11.03  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 11.04  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 11.05 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 11.05 hereof) stating that, in
the opinion of such counsel, all such conditions precedent and covenants have
been satisfied.


 


74

















 


SECTION 11.05  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 and understands 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


 


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


 


SECTION 11.06  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 11.07  NO PERSONAL
LIABILITY OF DIRECTORS, OFFICERS, EMPLOYEES AND STOCKHOLDERS.


 


No director,
officer, employee, incorporator or stockholder of the Company, as such, shall
have any liability for any obligations of the Company under the Notes, the
Indenture or the Registration Rights Agreement or for any claim based on, in
respect of, or by reason of, such obligations or their creation.  Each Holder of 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.


 


SECTION 11.08  GOVERNING LAW.


 


THE INTERNAL LAW
OF THE STATE OF NEW YORK (WITHOUT REGARD TO THE CONFLICTS OF LAWS PRINCIPLES
THEREOF THAT WOULD REQUIRE THE APPLICATION OF LAWS OF ANY OTHER STATE) SHALL
GOVERN AND BE USED TO CONSTRUE THIS INDENTURE AND THE NOTES.


 


SECTION 11.09  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 (other than the Exchange
Agreement).  Any such indenture, loan or
debt agreement may not be used to interpret this Indenture.  To the extent that there is any conflict
between this Indenture and the Exchange Agreement, the provisions of this
Indenture shall control.


 


75

















 


SECTION 11.10  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.


 


SECTION 11.11  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 11.12  COUNTERPART
ORIGINALS.


 


The parties may sign any number of copies of this Indenture (including
by telecopier transmission).  Each
signed copy shall be an original, but all of them together represent the same
agreement.


 


SECTION 11.13  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.


 


[Signatures on following pages]


 


524637


 


76

















 


SIGNATURES


 


	
  Dated as of November 13, 2003

  	
  DFG HOLDINGS, INC.

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Donald Gayhardt

  	
   

  
	
   

  	
  Donald Gayhardt

  
	
   

  	
  President and Chief Financial Officer

  
	
   

  	
   

  
	
   

  	
   

  
	
  Dated as of November 13, 2003

  	
  U.S. BANK NATIONAL ASSOCIATION

  
	
   

  	
  as Trustee

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Kathy A. Larimore

  	
   

  
	
   

  	
  Kathy A. Larimore

  
	
   

  	
  Vice President

  
						



 

















 


EXHIBIT
A—Form of Regulation S Certificate


 


REGULATION S
CERTIFICATE


 


(For transfers pursuant to Section 2.08(a)(i) and (iii) and
Section 2.08(b) of the Indenture)


 


U.S. Bank National Association, as Trustee


225 Asylum Street Hartford, CT 
06103


Attn: Corporate Trust Services


 


Re:                               16% Senior Notes due 2012 of DFG
Holdings, Inc.  (the “Notes”)


 


Reference is made
to the Indenture, dated as of November 13, 2003 (the “Indenture”), between DFG Holdings,
Inc.  (the “Company”) and U.S. Bank National Association, as
Trustee.  Terms used herein and defined
in the Indenture or in Regulation S or Rule 144 under the U.S.  Securities Act of 1933, as amended (the “Securities Act”), are used herein as so
defined.


 


This certificate
relates to U.S. 
$                         principal
amount of Notes, which are evidenced by the following certificate(s) (the “Specified Notes”):


 


CUSIP No(s). 
                                                        


 


CERTIFICATE
No(s). 
                                          


 


The person in
whose name this certificate is executed below (the “Undersigned”) hereby certifies that either (i) it is the
sole beneficial owner of the Specified Notes or (ii) it is acting on behalf of
all the beneficial owners of the Specified Notes and is duly authorized by them
to do so.  Such beneficial owner or
owners are referred to herein collectively as the “Owner.”  If the
Specified Notes are represented by a Global Note, they are held through the
Depositary or an Agent Member in the name of the Undersigned, as or on behalf
of the Owner.  If the Specified Notes are
not represented by a Global Note, they are registered in the name of the
Undersigned, as or on behalf of the Owner.


 


The Owner has
requested that the Specified Notes be transferred to a person (the “Transferee”) who will take delivery in the
form of a Regulation S Note.  In
connection with such transfer, the Owner hereby certifies that, unless such
transfer is being effected pursuant to an effective registration statement
under the Securities Act, it is being effected in accordance with Rule 904 or
Rule 144 under the Securities Act and with all applicable securities laws of
the states of the United States and other jurisdictions.  Accordingly, the Owner hereby further
certifies as follows:


 


(a)                                  Rule
904 Transfers.  If the transfer is being
effected in accordance with Rule 904:


 


(1)                                  the
Owner is not a distributor of the Notes, an affiliate of the Company or any
such distributor or a person acting on behalf of any of the foregoing;


 


(2)                                  the
offer of the Specified Notes was not made to a person in the United States;


 


(3)                                  either:


 


(i)                                     at
the time the buy order was originated, the Transferee was outside the United
States or the Owner and any person acting on its behalf reasonably believed
that the Transferee was outside the United States, or


 


A-1

















 


(ii)                                  the
transaction is being executed in, on or through the facilities of the Eurobond
market, as regulated by the International Securities Market Association, or
another designated offshore securities market and neither the Owner nor any
person acting on its behalf knows that the transaction has been prearranged
with a buyer in the United States;


 


(4)                                  no
directed selling efforts have been made in the United States by or on behalf of
the Owner or any affiliate thereof;


 


(5)                                  if
the Owner is a dealer in securities or has received a selling concession, fee
or other remuneration in respect of the Specified Notes, and the transfer is to
occur during the Restricted Period, then the requirements of Rule 904(b)(1)
have been satisfied;


 


(6)                                  if
the Owner is an officer or director of the Company or a distributor, and is an
affiliate of the Company or a distributor solely by virtue of holding such
position, no selling concession, fee or other remuneration is paid in
connection with such offer or sale other than the usual and customary broker’s
commission that would be received by a person executing such transaction as
agent; and


 


(7)                                  the
transaction is not part of a plan or scheme to evade the registration
requirements of the Securities Act.


 


(b)                                 Rule
144 Transfers.  If the transfer is
being effected pursuant to Rule 144:


 


(1)                                  the
transfer is occurring after a holding period of at least one year (computed in
accordance with paragraph (d) of Rule 144) has elapsed since the Specified Notes
were last acquired from the Company or from an affiliate of the Company,
whichever is later, and is being effected in accordance with the applicable
volume, manner of sale and notice requirements of Rule 144; or


 


(2)                                  the
transfer is occurring after a holding period of at least two years has elapsed
since the Specified Notes were last acquired from the Company or from an
affiliate of the Company, whichever is later, and the Owner is not, and during
the preceding three months has not been, an affiliate of the Company.


 


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


 


 


	
  Date:

  	
   

  
	
   

  	
   

  	
  (Print the name of the Undersigned, as such
  term

  is defined in the third paragraph of this

  certificate.)

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  
	
   

  	
   

  
	
   

  	
   

  	
  (If the Undersigned is a corporation,
  partnership

  or fiduciary, the title of the person signing on

  behalf of the Undersigned must be stated.)

  	
   

  
					



 


A-2

















 


B-1  EXHIBIT B—Form of Restricted Notes
Certificate


 


RESTRICTED
NOTES CERTIFICATE


 


(For transfers
pursuant to Section 2.08(a)(ii), (iii) and (iv) and Section 2.08(b)
of the Indenture)


 


U.S. Bank National Association, as Trustee


225 Asylum Street Hartford, CT 
06103


Attn: Corporate Trust Services


 


Re:                               16% Senior Notes due 2012 of DFG
Holdings, Inc.  (the “Notes”)


 


Reference is made
to the Indenture, dated as of November 13, 2003 (the “Indenture”), between DFG Holdings,
Inc.  (the “Company”) and U.S. Bank National Association, as
Trustee.  Terms used herein and defined
in the Indenture or in Rule 144A or Rule 144 under the U.S.  Securities Act of 1933, as amended (the “Securities Act”), are used herein as so
defined.


 


This certificate
relates to U.S. 
$                         principal
amount of Notes, which are evidenced by the following certificate(s) (the “Specified Notes”):


 


CUSIP No(s). 
                                                        


 


CERTIFICATE
No(s). 
                                          


 


The person in
whose name this certificate is executed below (the “Undersigned”) hereby certifies that either (i) it is the
sole beneficial owner of the Specified Notes or (ii) it is acting on behalf of
all the beneficial owners of the Specified Notes and is duly authorized by them
to do so.  Such beneficial owner or
owners are referred to herein collectively as the “Owner.” If the Specified Notes are represented by a Global
Note, they are held through the Depositary or an Agent Member in the name of
the Undersigned, as or on behalf of the Owner. 
If the Specified Notes are not represented by a Global Note, they are
registered in the name of the Undersigned, as or on behalf of the Owner.


 


The Owner has
requested that the Specified Notes be transferred to a person (the “Transferee”) who will take delivery in the
form of a Restricted Note or, if pursuant to Rule 144, in the form of a Note
bearing no Securities Act Legend pursuant to Section 2.08(f).  In connection with such transfer, the Owner
hereby certifies that, unless such transfer is being effected pursuant to an
effective registration statement under the Securities Act, it is being effected
in accordance with Rule 144A or Rule 144 under the Securities Act and all
applicable securities laws of the states of the United States and other
jurisdictions.  Accordingly, the Owner
hereby further certifies as follows:


 


(a)                                  Rule 144A
Transfers.  If the transfer is being
effected in accordance with Rule 144A:


 


(1)                                  the
Specified Notes are being transferred to a person that the Owner and any person
acting on its behalf reasonably believe is a “qualified institutional buyer”
within the meaning of Rule 144A, acquiring for its own account or for the
account of a qualified institutional buyer; and


 


(2)                                  the
Owner and any person acting on its behalf have taken reasonable steps to ensure
that the Transferee is aware that the Owner may be relying on Rule 144A in
connection with the transfer; and


 


(b)                                 Rule 144 Transfers.  If the transfer is being effected pursuant
to Rule 144:


 


B-1

















 


(1)                                  the transfer is
occurring after a holding period of at least one year (computed in accordance
with paragraph (d) of Rule 144) has elapsed since the Specified Notes were last
acquired from the Company or from an affiliate of the Company, whichever is
later, and is being effected in accordance with the applicable volume, manner
of sale and notice requirements of Rule 144; or


 


(3)                                  the
transfer is occurring after a holding period of at least two years has elapsed since
the Specified Notes were last acquired from the Company or from an affiliate of
the Company, whichever is later, and the Owner is not, and during the preceding
three months has not been, an affiliate of the Company.


 


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


 


	
  Date:

  	
   

  
	
   

  	
   

  	
  (Print the name of the Undersigned, as such
  term

  is defined in the third paragraph of this

  certificate.)

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  
	
   

  	
   

  
	
   

  	
   

  	
  (If the Undersigned is a corporation,
  partnership

  or fiduciary, the title of the person signing on

  behalf of the Undersigned must be stated.)

  	
   

  
					



 


B-2

















 


C-1  EXHIBIT C—Form of Unrestricted Notes
Certificate


 


UNRESTRICTED
NOTES CERTIFICATE


 


(For removal
of Securities Act Legends pursuant to Section 2.08(f))


 


U.S. Bank National Association, as Trustee


225 Asylum Street Hartford, CT 
06103


Attn: Corporate Trust Services


 


Re:                               16% Senior Notes due 2012 of DFG
Holdings, Inc.  (the “Notes”)


 


Reference is made
to the Indenture, dated as of November 13, 2003 (the “Indenture”), between DFG Holdings,
Inc.  (the “Company”) and U.S. Bank National Association, as
Trustee.  Terms used herein and defined
in the Indenture or in Rule 144 under the U.S. 
Securities Act of 1933, as amended (the “Securities Act”), are used herein as so defined.


 


This certificate
relates to U.S. 
$                         
principal amount of Notes, which are evidenced by the following certificate(s)
(the “Specified Notes”):


 


CUSIP No(s). 
                                                        


 


CERTIFICATE
No(s). 
                                          


 


The person in
whose name this certificate is executed below (the “Undersigned”) hereby certifies that either (i) it is the
sole beneficial owner of the Specified Notes or (ii) it is acting on behalf of
all the beneficial owners of the Specified Notes and is duly authorized by them
to do so.  Such beneficial owner or
owners are referred to herein collectively as the “Owner.”  If the
Specified Notes are represented by a Global Note, they are held through the
Depositary or an Agent Member in the name of the Undersigned, as or on behalf
of the Owner.  If the Specified Notes
are not represented by a Global Note, they are registered in the name of the
Undersigned, as or on behalf of the Owner.


 


The Owner has
requested that the Specified Notes be exchanged for Notes bearing no Securities
Act Legend pursuant to Section 2.08(f) of the Indenture.  In connection with such exchange, the Owner
hereby certifies that the exchange is occurring after a holding period of at
least two years (computed in accordance with paragraph (d) of Rule 144) has
elapsed since the Specified Notes were last acquired from the Company or from
an affiliate of the Company, whichever is later, and the Owner is not, and
during the preceding three months has not been, an affiliate of the
Company.  The Owner also acknowledges
that any future transfers of the Specified Notes must comply with all applicable
securities laws of the states of the United States and other jurisdictions.


 


E-1

















 


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


 


	
  Date:

  	
   

  
	
   

  	
   

  	
  (Print the name of the Undersigned, as such
  term

  is defined in the third paragraph of this

  certificate.)

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  
	
   

  	
   

  
	
   

  	
   

  	
  (If the Undersigned is a corporation,
  partnership

  or fiduciary, the title of the person signing on

  behalf of the Undersigned must be stated.)

  	
   

  
					



 


E-2