Exhibit 4.1


 




 


 





SQUARETWO FINANCIAL CORPORATION,

as Issuer,


 


the GUARANTORS named herein


 


and


 


U.S. BANK NATIONAL ASSOCIATION

as Trustee


 






 


INDENTURE


 






 


Dated as of April 7, 2010


11.625% Senior Second Lien Notes due 2017


 




 





 

















 


CROSS-REFERENCE TABLE


 


	
  Trust Indenture Act Section

  	
   

  	
  Indenture Section

  
	
   

  	
   

  	
   

  
	
  310(a)(1)

  	
   

  	
  7.10

  
	
  (a)(2)

  	
   

  	
  7.10

  
	
  (a)(3)

  	
   

  	
  N.A.

  
	
  (a)(4)

  	
   

  	
  N.A.

  
	
  (a)(5)

  	
   

  	
  7.10

  
	
  (b)

  	
   

  	
  7.10

  
	
  (c)

  	
   

  	
  N.A.

  
	
  311(a)

  	
   

  	
  7.11

  
	
  (b)

  	
   

  	
  7.11

  
	
  (c)

  	
   

  	
  N.A.

  
	
  312(a)

  	
   

  	
  2.05

  
	
  (b)

  	
   

  	
  13.03

  
	
  (c)

  	
   

  	
  13.03

  
	
  313(a)

  	
   

  	
  7.06

  
	
  (b)

  	
   

  	
  7.06

  
	
  (c)

  	
   

  	
  7.06;
  13.02

  
	
  (d)

  	
   

  	
  7.06

  
	
  314(a)

  	
   

  	
  4.03;
  4.18; 13.02

  
	
  (b)

  	
   

  	
  12.02

  
	
  (c)(1)

  	
   

  	
  13.04

  
	
  (c)(2)

  	
   

  	
  13.04

  
	
  (c)(3)

  	
   

  	
  N.A.

  
	
  (d)

  	
   

  	
  12.02

  
	
  (e)

  	
   

  	
  13.05

  
	
  (f)

  	
   

  	
  N.A.

  
	
  315(a)

  	
   

  	
  7.01

  
	
  (b)

  	
   

  	
  7.05,
  13.02

  
	
  (c)

  	
   

  	
  7.01

  
	
  (d)

  	
   

  	
  7.01;
  6.05

  
	
  (e)

  	
   

  	
  6.11

  
	
  316(a) (last
  sentence)

  	
   

  	
  2.09

  
	
  (a)(1)(A)

  	
   

  	
  6.05

  
	
  (a)(1)(B)

  	
   

  	
  6.04

  
	
  (a)(2)

  	
   

  	
  N.A.

  
	
  (b)

  	
   

  	
  6.07

  
	
  (c)

  	
   

  	
  13.14

  
	
  317(a)(1)

  	
   

  	
  6.08

  
	
  (a)(2)

  	
   

  	
  6.09

  
	
  (b)

  	
   

  	
  2.04

  
	
  318(a)

  	
   

  	
  13.01

  
	
  (b)

  	
   

  	
  N.A.

  
	
  (c)

  	
   

  	
  13.01

  



 


N.A.
means not applicable.


 


This
Cross-Reference Table is not part of this Indenture.


 

















 


TABLE OF CONTENTS


 


	
   

  	
   

  	
  Page

  
	
   

  
	
  ARTICLE 1

  
	
   

  
	
  DEFINITIONS
  AND INCORPORATION BY REFERENCE

  
	
   

  
	
  SECTION 1.01.

  	
  Definitions

  	
  1

  
	
  SECTION 1.02.

  	
  Other Definitions

  	
  29

  
	
  SECTION 1.03.

  	
  Incorporation by Reference of Trust Indenture Act

  	
  30

  
	
  SECTION 1.04.

  	
  Rules of Construction

  	
  30

  
	
   

  	
   

  	
   

  
	
  ARTICLE 2

  
	
   

  
	
  THE NOTES

  
	
   

  
	
  SECTION 2.01.

  	
  Form and Dating

  	
  31

  
	
  SECTION 2.02.

  	
  Execution and Authentication

  	
  31

  
	
  SECTION 2.03.

  	
  Registrar and Paying Agent

  	
  32

  
	
  SECTION 2.04.

  	
  Paying Agent to Hold Money in Trust

  	
  32

  
	
  SECTION 2.05.

  	
  Holder Lists

  	
  33

  
	
  SECTION 2.06.

  	
  Transfer and Exchange

  	
  33

  
	
  SECTION 2.07.

  	
  Replacement Notes

  	
  46

  
	
  SECTION 2.08.

  	
  Outstanding Notes

  	
  46

  
	
  SECTION 2.09.

  	
  Treasury Notes

  	
  47

  
	
  SECTION 2.10.

  	
  Temporary Notes

  	
  47

  
	
  SECTION 2.11.

  	
  Cancellation

  	
  47

  
	
  SECTION 2.12.

  	
  Defaulted Interest

  	
  47

  
	
  SECTION 2.13.

  	
  CUSIP Numbers

  	
  48

  
	
  SECTION 2.14.

  	
  [Reserved]

  	
  48

  
	
  SECTION 2.15.

  	
  Issuance of Additional Notes

  	
  48

  
	
   

  	
   

  	
   

  
	
  ARTICLE 3

  
	
   

  
	
  REDEMPTION
  AND PREPAYMENT

  
	
   

  
	
  SECTION 3.01.

  	
  Notices to Trustee

  	
  49

  
	
  SECTION 3.02.

  	
  Selection of Notes to Be Redeemed

  	
  49

  
	
  SECTION 3.03.

  	
  Notice of Redemption

  	
  49

  
	
  SECTION 3.04.

  	
  Effect of Notice of Redemption

  	
  50

  
	
  SECTION 3.05.

  	
  Deposit of Redemption Price

  	
  50

  
	
  SECTION 3.06.

  	
  Notes Redeemed in Part

  	
  51

  
	
  SECTION 3.07.

  	
  Optional Redemption

  	
  51

  
	
  SECTION 3.08.

  	
  Mandatory Redemption

  	
  52

  
	
  SECTION 3.09.

  	
  Offer to Purchase by Application of Net Proceeds

  	
  52

  
	
  SECTION 3.10.

  	
  Other Acquisitions of Notes

  	
  54

  



 


i

















 


	
  ARTICLE 4

  
	
   

  
	
  COVENANTS

  
	
   

  
	
  SECTION 4.01.

  	
  Payment of Notes

  	
  54

  
	
  SECTION 4.02.

  	
  Maintenance of Office or Agency

  	
  54

  
	
  SECTION 4.03.

  	
  Compliance Certificate

  	
  55

  
	
  SECTION 4.04.

  	
  Taxes

  	
  55

  
	
  SECTION 4.05.

  	
  Stay, Extension and Usury Laws

  	
  56

  
	
  SECTION 4.06.

  	
  Change of Control

  	
  56

  
	
  SECTION 4.07.

  	
  Asset Sales

  	
  57

  
	
  SECTION 4.08.

  	
  Restricted Payments

  	
  59

  
	
  SECTION 4.09.

  	
  Incurrence of Indebtedness

  	
  63

  
	
  SECTION 4.10.

  	
  Liens

  	
  66

  
	
  SECTION 4.11.

  	
  Dividend and Other Payment Restrictions Affecting
  Subsidiaries

  	
  66

  
	
  SECTION 4.12.

  	
  Transactions with Affiliates

  	
  68

  
	
  SECTION 4.13.

  	
  Additional Guarantees

  	
  71

  
	
  SECTION 4.14.

  	
  Limitations on Issuances of Guarantees of Indebtedness

  	
  71

  
	
  SECTION 4.15.

  	
  Business Activities

  	
  71

  
	
  SECTION 4.16.

  	
  Designation of Restricted and Unrestricted Subsidiaries

  	
  72

  
	
  SECTION 4.17.

  	
  Payments for Consent

  	
  72

  
	
  SECTION 4.18.

  	
  Reports

  	
  72

  
	
  SECTION 4.19.

  	
  Further Assurances

  	
  73

  
	
   

  	
   

  	
   

  
	
  ARTICLE 5

  
	
   

  
	
  SUCCESSORS

  
	
   

  	
   

  	
   

  
	
  SECTION 5.01.

  	
  Merger, Consolidation, or Sale of Assets

  	
  74

  
	
  SECTION 5.02.

  	
  Successor Person Substituted

  	
  75

  
	
   

  	
   

  	
   

  
	
  ARTICLE 6

  
	
   

  
	
  DEFAULTS
  AND REMEDIES

  
	
   

  
	
  SECTION 6.01.

  	
  Events of Default

  	
  75

  
	
  SECTION 6.02.

  	
  Acceleration

  	
  77

  
	
  SECTION 6.03.

  	
  Other Remedies

  	
  78

  
	
  SECTION 6.04.

  	
  Waiver of Past Defaults

  	
  78

  
	
  SECTION 6.05.

  	
  Control by Majority

  	
  78

  
	
  SECTION 6.06.

  	
  Limitation on Suits

  	
  79

  
	
  SECTION 6.07.

  	
  Rights of Holders of Notes to Receive Payment

  	
  79

  
	
  SECTION 6.08.

  	
  Collection Suit by Trustee

  	
  79

  
	
  SECTION 6.09.

  	
  Trustee May File Proofs of Claim

  	
  79

  
	
  SECTION 6.10.

  	
  Priorities

  	
  80

  
	
  SECTION 6.11.

  	
  Undertaking for Costs

  	
  81

  



 


ii

















 


	
  SECTION 6.12.

  	
  Notice

  	
  81

  
	
   

  	
   

  	
   

  
	
  ARTICLE 7

  
	
   

  
	
  TRUSTEE

  
	
   

  
	
  SECTION 7.01.

  	
  Duties of Trustee

  	
  81

  
	
  SECTION 7.02.

  	
  Rights of Trustee

  	
  82

  
	
  SECTION 7.03.

  	
  Individual Rights of Trustee

  	
  83

  
	
  SECTION 7.04.

  	
  Trustee’s Disclaimer

  	
  83

  
	
  SECTION 7.05.

  	
  Notice of Defaults

  	
  84

  
	
  SECTION 7.06.

  	
  Reports by Trustee to Holders of the Notes

  	
  84

  
	
  SECTION 7.07.

  	
  Compensation and Indemnity

  	
  84

  
	
  SECTION 7.08.

  	
  Replacement of Trustee

  	
  85

  
	
  SECTION 7.09.

  	
  Successor Trustee by Merger, etc.

  	
  86

  
	
  SECTION 7.10.

  	
  Eligibility; Disqualification

  	
  86

  
	
  SECTION 7.11.

  	
  Preferential Collection of Claims Against Company

  	
  87

  
	
  SECTION 7.12.

  	
  Collateral Agent

  	
  87

  
	
  SECTION 7.13.

  	
  Co-Trustees; Separate Trustee; Collateral Agent

  	
  87

  
	
  SECTION 7.14.

  	
  Patriot Act

  	
  88

  
	
  SECTION 7.15.

  	
  Force Majeure

  	
  89

  
	
  SECTION 7.16.

  	
  Limitation on Duty of Trustee in Respect of Collateral;
  Indemnification

  	
  89

  
	
   

  	
   

  	
   

  
	
  ARTICLE 8

  
	
   

  
	
  LEGAL
  DEFEASANCE AND COVENANT DEFEASANCE

  
	
   

  
	
  SECTION 8.01.

  	
  Option to Effect Legal Defeasance or Covenant Defeasance

  	
  90

  
	
  SECTION 8.02.

  	
  Legal Defeasance and Discharge

  	
  90

  
	
  SECTION 8.03.

  	
  Covenant Defeasance

  	
  90

  
	
  SECTION 8.04.

  	
  Conditions to Legal or Covenant Defeasance

  	
  91

  
	
  SECTION 8.05.

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

  	
  92

  
	
  SECTION 8.06.

  	
  Repayment to Company

  	
  93

  
	
  SECTION 8.07.

  	
  Reinstatement

  	
  93

  
	
   

  	
   

  	
   

  
	
  ARTICLE 9

  
	
   

  
	
  AMENDMENTS,
  SUPPLEMENT AND WAIVER

  
	
   

  
	
  SECTION 9.01.

  	
  Without Consent of Holders of Notes

  	
  94

  
	
  SECTION 9.02.

  	
  With Consent of Holders of Notes

  	
  95

  
	
  SECTION 9.03.

  	
  Compliance with Trust Indenture Act

  	
  97

  
	
  SECTION 9.04.

  	
  Revocation and Effect of Consents

  	
  97

  
	
  SECTION 9.05.

  	
  Notation on or Exchange of Notes

  	
  97

  



 


iii

















 


	
  SECTION 9.06.

  	
  Trustee to Sign Amendments, etc.

  	
  97

  
	
   

  	
   

  
	
  ARTICLE 10

  
	
   

  
	
  GUARANTEES

  
	
   

  
	
  SECTION 10.01.

  	
  Note Guarantees

  	
  98

  
	
  SECTION 10.02.

  	
  Limitation of Guarantor’s Liability

  	
  99

  
	
  SECTION 10.03.

  	
  Execution and Delivery of Note Guarantees

  	
  99

  
	
  SECTION 10.04.

  	
  Guarantors May Consolidate, etc., on Certain
  Terms

  	
  100

  
	
  SECTION 10.05.

  	
  Releases

  	
  100

  
	
  SECTION 10.06.

  	
  “Trustee” to Include Paying Agent

  	
  101

  
	
   

  	
   

  
	
  ARTICLE 11

  
	
   

  
	
  SATISFACTION
  AND DISCHARGE

  
	
   

  
	
  SECTION 11.01.

  	
  Satisfaction and Discharge

  	
  101

  
	
  SECTION 11.02.

  	
  Application of Trust

  	
  103

  
	
   

  	
   

  
	
  ARTICLE 12

  
	
   

  
	
  SECURITY

  
	
   

  
	
  SECTION 12.01.

  	
  Security Documents

  	
  103

  
	
  SECTION 12.02.

  	
  Recording, Registration and Opinions

  	
  103

  
	
  SECTION 12.03.

  	
  Releases of Collateral

  	
  104

  
	
  SECTION 12.04.

  	
  Form and Sufficiency of Release

  	
  105

  
	
  SECTION 12.05.

  	
  Possession and Use of Collateral

  	
  105

  
	
  SECTION 12.06.

  	
  Purchaser Protected

  	
  105

  
	
  SECTION 12.07.

  	
  Authorization of Actions to Be Taken by the Collateral
  Agent Under the Security Documents

  	
  105

  
	
  SECTION 12.08.

  	
  Authorization of Receipt of Funds by the Trustee Under the
  Security Agreement

  	
  106

  
	
  SECTION 12.09.

  	
  Powers Exercisable by Receiver or Collateral Agent

  	
  106

  
	
  SECTION 12.10.

  	
  Appointment and Authorization of U.S. Bank National
  Association as Collateral Agent

  	
  106

  
	
   

  	
   

  	
   

  
	
  ARTICLE 13

  
	
   

  
	
  MISCELLANEOUS

  
	
   

  
	
  SECTION 13.01.

  	
  Trust Indenture Act Controls

  	
  107

  
	
  SECTION 13.02.

  	
  Notices

  	
  107

  
	
  SECTION 13.03.

  	
  Communication by Holders of Notes with Other Holders of
  Notes

  	
  108

  
	
  SECTION 13.04.

  	
  Certificate and Opinion as to Conditions Precedent

  	
  108

  



 


iv

















 


	
  SECTION 13.05.

  	
  Statements Required in Certificate or Opinion

  	
  109

  
	
  SECTION 13.06.

  	
  Rules by Trustee and Agents

  	
  109

  
	
  SECTION 13.07.

  	
  No Personal Liability of Directors, Officers, Employees and
  Stockholders

  	
  109

  
	
  SECTION 13.08.

  	
  Governing Law

  	
  110

  
	
  SECTION 13.09.

  	
  No Adverse Interpretation of Other Agreements

  	
  110

  
	
  SECTION 13.10.

  	
  Successors

  	
  110

  
	
  SECTION 13.11.

  	
  Severability

  	
  110

  
	
  SECTION 13.12.

  	
  Counterpart Originals

  	
  110

  
	
  SECTION 13.13.

  	
  Table of Contents, Headings, etc.

  	
  110

  
	
  SECTION 13.14.

  	
  Record Date for Voting by or Consent of Holders

  	
  111

  
	
  SECTION 13.15.

  	
  Intercreditor Agreement

  	
  111

  
	
  SECTION 13.16.

  	
  Waiver of Jury Trial

  	
  111

  



 


	
  Schedule
  A

  	
  SCHEDULE
  OF GUARANTORS

  
	
   

  	
   

  
	
  EXHIBITS

  
	
   

  	
   

  
	
  Exhibit A

  	
  FORM OF
  NOTE

  
	
  Exhibit B

  	
  FORM OF
  CERTIFICATE OF TRANSFER

  
	
  Exhibit C

  	
  FORM OF
  CERTIFICATE OF EXCHANGE

  
	
  Exhibit D

  	
  FORM OF
  GUARANTEE

  
	
  Exhibit E

  	
  FORM OF
  CERTIFICATE FROM ACQUIRING INSTITUTIONAL ACCREDITED INVESTOR

  



 


Note:  This Table of Contents shall not, for any
purpose, be deemed to be part of this Indenture.


 


v

















 


INDENTURE
dated as of April 7, 2010 among SquareTwo Financial Corporation, a
Delaware corporation (the “Company”), the Guarantors (as defined herein) listed
on Schedule A hereto, and U.S. Bank National Association, a national banking
association, as trustee (the “Trustee”).


 


The
Company, the Guarantors, and the Trustee agree as follows for the benefit of
each other and for the equal and ratable benefit of the Holders of the 11.625%
Senior Second Lien Notes due 2017 (such notes, including the Exchange Notes,
the “Notes”).


 


ARTICLE 1


 


DEFINITIONS AND
INCORPORATION BY REFERENCE


 


SECTION 1.01.               Definitions.


 


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


 


“Acquired
Debt” means, with respect to any specified Person:  (i) Indebtedness of any other Person
existing at the time such other Person is merged with or into or became a
Subsidiary of such specified Person, whether or not such Indebtedness is
incurred in connection with, or in contemplation of, such other Person merging
with or into, or becoming a Subsidiary of, such specified Person; and (ii) Indebtedness
assumed in connection with the acquisition of any assets by such specified
Person.


 


“Additional Credit Facility” means
any “Credit Facility” (other than the Credit Agreement and related First Lien
Documents) as defined in and permitted under this Indenture; provided that any such “Credit Facility”
shall only constitute an Additional Credit Facility hereunder if either (a) a
Discharge of First Lien Obligations under the Credit Agreement and other
related First Lien Documents occurs contemporaneously with a refinancing
thereof pursuant to a refinancing that will be secured by a first priority Lien
in any Collateral, or (b) the existing First Lien Lenders consent to such
Credit Facility in accordance with the terms and conditions of the existing
First Lien Credit Documents.


 


“Additional
Interest” has the meaning assigned to such term in the Registration Rights
Agreement.


 


“Additional
Notes” means, subject to the Company’s compliance with the provisions of Section 4.09,
such additional Notes as the Company may issue under this Indenture on the same
terms and conditions and with the same interest rate, maturity and CUSIP
numbers as the Notes being issued on the Issue Date.


 


“Affiliate”
of any specified Person means any other Person directly or indirectly
controlling or controlled by or under direct or indirect common control with
such specified Person.  For purposes of
this definition, “control,” as used with respect to any Person, shall mean the
possession, directly or indirectly, of the power to direct or cause the
direction of the management 


 

















 


or
policies of such Person, whether through the ownership of voting securities, by
agreement or otherwise.  For purposes of
this definition, the terms “controlling,” “controlled by” and “under common
control with” shall have correlative meanings.


 


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


 


“Applicable Premium” means, as
calculated by the Company, with respect to any Note on any applicable
redemption date, the greater of (i) 1.0% of the then outstanding principal
amount of such Note, and (ii) the excess of (a) the present value at
such redemption date of (i) the redemption price of such Note at
April 1, 2014 (such redemption price being set forth in Section 3.07)
plus (ii) all required interest payments due on such Note through
April 1, 2014 (excluding accrued but unpaid interest), computed using a
discount rate equal to the Treasury Rate as of such redemption date plus 50
basis points; over (b) the then outstanding principal amount of such Note.


 


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


 


“Asset
Sale” means:


 


(i)           the sale,
lease, conveyance or other disposition of any assets or rights, including sales
and leasebacks; provided that the
sale, lease, conveyance or other disposition of all or substantially all of the
assets of the Company and its Restricted Subsidiaries taken as a whole will be
governed by the provisions of Section 4.06, and/or the provisions of Article 5
hereof and not by the provisions of Section 4.07; and


 


(ii)            the issuance of
Equity Interests by any of the Company’s Restricted Subsidiaries or the sale of
Equity Interests in any of its Subsidiaries.


 


Notwithstanding
the preceding, the following items shall not be deemed to be Asset Sales:


 


(i)            any single
transaction or series of related transactions that:  (a) involves assets having a fair market
value of less than $5.0 million; or (b) results in net proceeds to the
Company and its Restricted Subsidiaries of less than $5.0 million;


 


(ii)           a transfer of
assets between or among the Company and its Restricted Subsidiaries;


 


(iii)          an issuance of
Equity Interests by a Restricted Subsidiary to the Company or to another
Restricted Subsidiary;


 


(iv)          a Restricted
Payment that is permitted under Section 4.08 hereof;


 


(v)           the sale or
disposition of any Investments described in clause (ix) of the definition
of Permitted Investments;


 


2

















 


(vi)          sales,
discounts, leases, conveyances or other dispositions of Charged-off
Receivables, inventory, receivables, other current assets or equipment in the
ordinary course of business;


 


(vii)         any sale,
transfer, assignment or other disposition of any property or equipment that has
become damaged, worn out, obsolete, surplus or otherwise unsuitable for use in
connection with the business of the Company or its Restricted Subsidiaries;


 


(viii)        grants of
licenses to use the Company’s or any Restricted Subsidiary’s intellectual
property in the ordinary course of business;


 


(ix) the surrender
or waiver of contract rights or the settlement, release or surrender of
contract, tort or other claims of any kind;


 


(x)            sales or other
dispositions of cash or Cash Equivalents; and


 


(xi)           leases or
subleases to third persons in the ordinary course of business that do not
interfere in any material respect with the business of the Company or any of
its Restricted Subsidiaries.


 


“Astrum Financial” means Astrum
Financial, LLC, a Colorado limited liability company.


 


“Attributable
Debt” in respect of a sale and leaseback transaction means, at the time of
determination, the amount of Indebtedness required to appear as indebtedness on
a balance sheet in accordance with GAAP.


 


“Bankruptcy
Code” means Title 11 of the United States Code entitled “Bankruptcy,” as
now and hereafter in effect, or any successor statute.


 


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


 


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


 


“Board
of Directors” means the Board of Directors of the Company, or the Parent
Company, as applicable, or any authorized committee of the Board of Directors.


 


“Broker-Dealer”
means any broker-dealer that receives Exchange Notes for its own account in the
Exchange Offer in exchange for Notes that were acquired by such broker-dealer
as a result of market-making or other trading activities.


 


3














 


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


 


“Canadian Subsidiaries” means SquareTwo
Financial Canada Corporation, CCL Financial Inc., Preferred Credit Resources
Limited and Metropolitan Legal Administration Services Inc.


 


“Capital Lease Obligation” means, at the
time any determination thereof is to be made, an obligation that is required to
be classified and accounted for as a capitalized lease for financial reporting
purposes in accordance with GAAP, and the amount of Indebtedness represented by
such obligation will be the capitalized amount of such obligation at the time
any determination thereof is to be made as determined in accordance with GAAP,
and the Stated Maturity thereof will be the date of the last payment of rent or
any other amount due under such lease prior to the first date such lease may be
terminated without penalty.


 


“Capital
Stock” means (i) in the case of a corporation, corporate stock; (ii) in
the case of an association or business entity, any and all shares, interests,
participations, rights or other equivalents (however designated) of corporate
stock; (iii) in the case of a partnership or limited liability company,
partnership or membership interests (whether general or limited); and (iv) any
other interest or participation that confers on a Person the right to receive a
share of the profits and losses of, or distributions of assets of, the issuing
Person.


 


“Cash
Equivalents” means (i) United States dollars; (ii) (a) Canadian
dollars, pounds sterling, euros or any national currency of any participating
member state of the European Economic and Monetary Union; or (b) such
local currencies held by the Company or any Restricted Subsidiary from time to
time in the ordinary course of business; (iii) securities issued or
directly and fully and unconditionally guaranteed or insured by the U.S.
government or any agency or instrumentality thereof the securities of which are
unconditionally guaranteed as a full faith and credit obligation of such
government with maturities of not more than twelve months from the date of
acquisition; (iv) certificates of deposit, time deposits and eurodollar
time deposits with maturities of one year or less from the date of acquisition,
bankers’ acceptances with maturities not exceeding one year and overnight bank
deposits, in each case with any domestic or foreign commercial bank having
capital and surplus of not less than $250 million in the case of U.S. banks and
$100 million (or the U.S. dollar equivalent as of the date of determination) in
the case of non-U.S. banks; (v) repurchase obligations for underlying
securities of the types described in clauses (iii) and (iv) entered
into with any financial institution meeting the qualifications specified in
clause (iv) above; (vi) direct obligations issued by any state of the
United States or any political subdivision or public instrumentality thereof
with maturities of not more than twelve months from the date of acquisition
rated at least A-2 or the equivalent thereof by Standard & Poor’s
Ratings Services or at least P-2 or the equivalent thereof by Moody’s Investor
Services, Inc. (or if at such time neither is issuing ratings, then a
comparable rating of another nationally recognized rating agency); (vii) money
market instruments, commercial paper or other short-term obligations rated at
least A-2 or the equivalent thereof by Standard & Poor’s Ratings
Services or at least P-2 or the equivalent thereof by Moody’s Investor Services, Inc.
(or if at such time neither is issuing ratings, then a comparable rating of
another nationally recognized rating agency); (viii) investments in money
market funds subject to the risk limiting conditions of Rule 2a-7 or any
successor rule of the SEC under the Investment Company Act of 1940, as
amended; 


 


4

















 


and
(ix) investment funds investing at least 90% of their assets in securities
of the types described in clauses (i) through (viii) above.


 


“Cargill” means CFSC Capital Corp.
XXXIV, a Delaware corporation.


 


“Cargill Liens” means the Liens of Cargill
with respect to certain receivables owned by CACV of Colorado, LLC or CACV of
New Jersey, LLC, each as of the Issue Date, as a result of prior financing
transactions entered into with Cargill prior to 2006.


 


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


 


(i)           prior to the
first public offering of common stock of the Company or the Parent Company, the
Permitted Holders cease to be the Beneficial Owners of, or to have the right to
vote, directly or indirectly, a majority in the aggregate of the total voting
power of the Voting Stock of the Company or the Parent Company, whether as a
result of the issuance of securities of the Company or the Parent Company, any
merger, consolidation, liquidation or dissolution of the Company or the Parent
Company, any direct or indirect transfer of securities by any Permitted Holder
or otherwise; provided, that such event described in this
clause (i) shall not be deemed to be a Change of Control so long as the
Permitted Holders have the right or ability by voting power, contract or
otherwise, to elect or designate for election a majority of the members of the
Board of Directors of Parent Company or the Company (for purposes of this
clause (i) and clause (ii) below, the Permitted Holders shall be
deemed to beneficially own any Voting Stock of an entity (the “specified entity”)
held by any other entity (the “parent entity”) so long as the Permitted Holders
beneficially own (as so defined), directly or indirectly, in the aggregate a
majority of the Voting Stock of the parent entity and if such Permitted Holders
own less than the majority of the voting power of the Voting Stock of the
parent entity, such Permitted Holders will be deemed to own the proportionate
share of the specified entity that they own of the parent entity);


 


(ii)            on the date of
or after the first public offering of common stock referred to in clause (i), (a) any
“person” or “group” of related persons (as such terms are used in Sections 13(d) and
14(d) of the Exchange Act), other than one or more Permitted Holders,
becomes the Beneficial Owner, directly or indirectly, of more than 35% of the
Voting Stock of the Company or any of its direct or indirect parent entities
(or their successors by merger, consolidation or purchase of all or
substantially all of their assets) and (b) the Permitted Holders own,
directly or indirectly, in the aggregate a lesser percentage of the total
Voting Stock of the Company or any of its direct or indirect parent entities
(or their successors by merger, consolidation or purchase of all or
substantially all of their assets) than such person or group;


 


(iii)            the first day
on which a majority of the members of the Board of Directors of the Company or
the Parent Company are not Continuing Directors;


 


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


 


5

















 


or substantially all of the assets of the Company or the Parent Company
and the Restricted Subsidiaries taken as a whole to any “person” (as such term
is used in Sections 13(d) of the Exchange Act) other than transactions
with one or more Permitted Holders, it being understood that the Company and
its Restricted Subsidiaries continually buy and sell Charged-off Receivables
and that such buying and selling in the ordinary course of business shall not
be considered a sale, lease, conveyance or other disposition of all or
substantially all of the assets of the Company and its Restricted Subsidiaries;
or


 


(v)           the adoption by
the equity holders of the Company or the Parent Company of a plan or proposal
for the liquidation or dissolution of the Company or the Parent Company.


 


“Charged-off Receivables” means any
accounts receivable and defaulted, contingent and charged-off obligations and
similar obligations, any participation or interest therein, and all rights and
interests related thereto, or arising in connection with, any of the foregoing,
including, without limitation, any agreements, documents or instruments related
thereto.


 


“Collateral” means all of the
assets of the Company and the Guarantors, whether real, personal or mixed, with
respect to which a Lien is granted (or purported to be granted) as security for
any Second Lien Obligations (including proceeds and products thereof).


 


“Collateral Agent” means U.S. Bank
National Association, in its capacity as Collateral Agent under the Security
Documents, together with its successors.


 


“Collect Air” means Collect Air, LLC, a
Delaware limited liability company.


 


“Company”
means SquareTwo Financial Corporation, a Delaware corporation, and any and all
successors thereto.


 


“Consolidated
Cash Flow” means, with respect to any Person for any period, the
Consolidated Net Income of such Person for such period plus, without
duplication:


 


(i)            an amount equal
to any extraordinary loss plus any net loss realized in connection with an
Asset Sale, to the extent such losses were deducted in computing such Consolidated
Net Income; plus


 


(ii)           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


 


(iii)          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 debt issuance costs and original issue discount, non-cash
interest payments, the interest component of any deferred payment obligations,
the interest component of all payments associated with Capital Lease
Obligations, imputed interest with respect to Attributable Debt, commissions,
discounts and other fees and charges incurred in respect of letter of credit or
bankers’ acceptance financings, and net payments, if any,


 


6

















 


pursuant to Hedging Obligations), to the extent that any such expense
was deducted in computing such Consolidated Net Income; plus


 


(iv)          depreciation,
amortization (including amortization of goodwill and other intangibles) and
additional non-cash amortization expenses resulting from premiums over the
asset value of purchased pools of Charged-off Receivables as a result of purchase
accounting adjustments in accordance with GAAP relating to the acquisition of
such pools) and other non-cash expenses, including stock-based compensation
provision and stock-based payments to franchisees and loss on early
extinguishment of debt, of such Person and its Subsidiaries for such period to
the extent that such depreciation, amortization and other non-cash expenses
were deducted in computing such Consolidated Net Income; plus


 


(v)           any integration
charges, expenses incurred in connection with acquisitions not consummated or
reserves or severance costs of up to an aggregate of $5.0 million for any given
four-quarter period; plus


 


(vi)          allowances on
or charges to purchased debt; plus


 


(vii)         non-cash items
increasing such Consolidated Net Income for such period, other than items that
were accrued in the ordinary course of business, in each case on a consolidated
basis, and non-cash items that require an accrual or reserve for a cash outlay
in a future period.


 


In
addition to the foregoing, (A) if the proceeds received by the Company and
its consolidated Subsidiaries in respect of purchased debt for such period
exceed the revenue recognized by the Company and its consolidated Subsidiaries
in respect of purchased debt for such period, such excess shall be added to
Consolidated Cash Flow and (B) if the revenue recognized by the Company
and its consolidated Subsidiaries in respect of purchased debt for such period
exceeds the proceeds received by the Company and its consolidated Subsidiaries
in respect of purchased debt for such period, such excess shall be deducted
from Consolidated Cash Flow.


 


Notwithstanding
the preceding, the provision for taxes based on the income or profits of, and
the depreciation and amortization and other non-cash charges of, a Subsidiary
of the Company shall be added to Consolidated Net Income to compute
Consolidated Cash Flow of the Company only to the extent that a corresponding
amount would be permitted at the date of determination to be dividended to the
Company by such Subsidiary without prior approval (that has not been obtained),
pursuant to the terms of its charter and all agreements, instruments,
judgments, decrees, orders, statutes, rules and governmental regulations
applicable to that Subsidiary or its shareholders.


 


“Consolidated
Net Income” means, with respect to any specified Person for any period, the
aggregate of the Net Income of such Person and its Restricted Subsidiaries for
such period, on a consolidated basis, provided
that, without duplication:


 


7

















 


(i)            the Net Income
(but not loss) of any Person that is not a Restricted 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 a Restricted Subsidiary thereof;


 


(ii)           the Net Income
of any Non-Guarantor Restricted Subsidiary shall be excluded to the extent that
the declaration or payment of dividends or similar distributions by that Non-Guarantor
Restricted Subsidiary of that Net Income is not at the date of determination
permitted without any prior governmental approval (that has not been obtained)
or, directly or indirectly, by operation of the terms of its charter or any
agreement, instrument, judgment, decree, order, statute, rule or
governmental regulation applicable to that Non-Guarantor Restricted Subsidiary
or its shareholders;


 


(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;


 


(iv)          any write-downs
with respect to or losses on dispositions of Subsidiaries and all restructuring
charges incurred by the Company, the Parent Company and the Subsidiaries shall
be excluded;


 


(v)           non-recurring
fees, expenses or charges (including integration charges and, without
limitation, the write-off of deferred financing fees) incurred in connection
with the Offering, or any merger, acquisition or consolidation shall be
excluded;


 


(vi)          any non-cash gains
or losses on mark to market accounting on Hedging Obligations shall be
excluded; and


 


(vii)         the cumulative
effect of, or a change in accounting principles shall be excluded.


 


“Continuing
Directors” means, as of any date of determination, any member of the Board
of Directors of the Company or the Parent Company, as the case may be,
who:  (i) was a member of such Board
of Directors on the Issue Date; or (ii) was nominated for election or elected
to such Board of Directors with the approval of a majority of the Continuing
Directors of such Board of Directors at the time of such nomination or election
or the Permitted Holders.


 


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


 


“Credit Agreement” means the Loan
Agreement, dated as of the Issue Date, among the Company, the Parent Company,
Preferred Credit Resources Limited, the other loan parties from time to time
parties thereto, the lenders from time to time party thereto, and GMAC
Commercial Finance LLC, as administrative agent and collateral agent, as
amended (including any amendment and restatement), supplemented, extended,
renewed, replaced (by one or more Credit Facilities, debt instruments,
indentures and/or related documentation) or otherwise modified from time to
time, including, without limitation, any agreement increasing the amount of, 


 


8

















 


extending
the maturity of or refinancing in whole or in part (including, but not limited
to, by the inclusion of additional or different lenders, financial institutions
or other creditors thereunder or additional borrowers or guarantors thereof)
all or any portion of the indebtedness under such agreement or any successor
agreement or agreements and whether by the same or any other agent, lender or
group of lenders or other financial institutions.


 


“Credit Facilities” means, with
respect to the Company or any Restricted Subsidiary, one or more debt
facilities or commercial paper facilities (including, without limitation,
indentures and the Credit Agreement), in each case with banks or other
institutional lenders or investors providing for revolving credit loans, term
loans, bonds, debentures, receivables financing (including through the sale of
receivables to such lenders or to special purpose entities formed to borrow
from such lenders against such receivables) or other asset securitizations,
letters of credit or other long-term indebtedness, in each case, as amended,
restated, modified, renewed, refunded, replaced or refinanced in whole or in
part from time to time.


 


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


 


“Definitive
Note” means a certificated Note registered in the name of the Holder
thereof and issued in accordance with Section 2.06 hereof, in the form of Exhibit A
hereto except that such Note shall not bear the Global Note Legend and shall not
have the “Schedule of Exchanges of Interests in the Global Note” attached
thereto.


 


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


 


“Discharge of First Lien Obligations”
means, subject to any reinstatement of First Lien Obligations in accordance
with the Intercreditor Agreement, (a) payment in full in cash of the
principal of and interest (including interest accruing on or after the
commencement of any Insolvency or Liquidation Proceeding at the rate provided
for in the respective First Lien Document, whether or not such interest would
be allowed in any such Insolvency or Liquidation Proceeding) and premium, if
any, on all Indebtedness under the First Lien Documents and termination of all
commitments of the First Lien Lenders to lend or otherwise extend credit under
the First Lien Documents, (b) payment in full in cash of all other First
Lien Obligations (including letter of credit reimbursement obligations) that
are due and payable or otherwise accrued and owing at or prior to the time such
principal, interest and premium are paid (other than secured hedging
obligations so long as arrangements satisfactory to the applicable provider
shall have been made), and (c) termination or cash collateralization (in
an amount and manner, and on terms, reasonably satisfactory to the First Lien
Agent) of all letters of credit issued under the First Lien Credit Documents.


 


“Disqualified
Stock” means any Capital Stock that, by its terms (or by the terms of any
security into which it is convertible, or for which it is exchangeable, in each
case at the option of the holder of the Capital Stock), or upon the happening
of any event, matures or is 


 


9

















 


mandatorily
redeemable, pursuant to a sinking fund obligation or otherwise, or redeemable
at the option of the holder of the Capital Stock, in whole or in part, on or
prior to the date that is 91 days after the date on which the Notes
mature.  Notwithstanding the preceding
sentence, any Capital Stock that would constitute Disqualified Stock solely
because the holders of the Capital Stock have the right to require the Company
to repurchase such Capital Stock upon the occurrence of a change of control or
an asset sale will not constitute Disqualified Stock if the terms of such
Capital Stock provide that the Company may not repurchase or redeem any such
Capital Stock pursuant to such provisions unless such repurchase or redemption
complies with Section 4.08 hereof.


 


“Domestic Subsidiary” means any
Subsidiary of the Company that is organized under the laws of any political
subdivision of the United States.


 


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


 


“Equity
Offering” means any private or underwritten public offering of common stock
of the Company or the Parent Company and, in the case of an offering by the
Parent Company, the net proceeds are contributed to the Company.


 


“Estimated Remaining Proceeds” means, at any
applicable calculation date, the aggregate gross remaining cash proceeds which
the Company or any Restricted Subsidiary anticipates to receive from
Charged-off Receivables owned by the Company or any Restricted Subsidiary as of
the end of the calendar month immediately preceding the calendar month of such
calculation date (excluding, for the avoidance of doubt, any amounts to be
distributed to Persons from whom Charged-off Receivables are purchased pursuant
to sharing arrangements), which Estimated Remaining Proceeds shall be
determined and reported by the Company to the Trustee upon incurrence of any
Lien permitted pursuant to clause (1) of the definition of “Permitted
Liens” and calculated by the Company in a manner consistent with its past
practice and the Company’s proprietary models; provided, that the Company shall provide such
other information relating to the assumptions and method of such calculations
as the Trustee may reasonably request.


 


“Exchange Act” means the Securities
Exchange Act of 1934, as amended, or any successor statute, and the rules and
regulations promulgated by the SEC thereunder.


 


“Exchange
Notes” means the 11.625% Senior Second Lien Notes due 2017 of the Company
issued pursuant to the Exchange Offer.


 


“Exchange
Offer” shall have the meaning given such term in the Registration Rights
Agreement.


 


“Exchange
Offer Registration Statement” shall have the meaning given such term in the
Registration Rights Agreement.


 


10

















 


“Existing Indebtedness” means
Indebtedness of the Company and its Restricted Subsidiaries in existence on the
Issue Date.


 


“First Lien Agent” has the meaning
assigned to the term “Senior Agent” in the Intercreditor Agreement.


 


“First Lien Credit Documents” means the
Credit Agreement, each other Credit Facility (to the extent that such Credit
Facility provides for or evidences First Lien Obligations), the other Loan
Documents (as defined in the Credit Agreement or any such other Credit
Facility), and each of the other agreements, documents and instruments
providing for or evidencing any other First Lien Obligation and any other
document or instrument executed or delivered at any time in connection with any
First Lien Obligation (including any intercreditor or joinder agreement among
holders of First Lien Obligations but excluding documents governing secured
hedging obligations), to the extent such are effective at the relevant time, as
each may be amended, modified, restated, supplemented, replaced or refinanced
from time to time.


 


“First Lien Documents” means the First
Lien Credit Documents and any and all documents governing the other First Lien
Obligations (including documents related to secured hedging obligations).


 


“First Lien Lenders” means the “Lenders”
or “Holders” (as the case may be) from time to time party to, and as defined
in, the Credit Agreement or any other First Lien Credit Document, together with
their respective successors and assigns; provided
that the term “First Lien Lender” shall in any event also include
each letter of credit issuer under the Credit Agreement and any “Agent” under
(and as defined in) the Credit Agreement.


 


“First Lien Obligations” means (i) all
Obligations under (and as defined in) the Credit Agreement and under any other
document relating to the Credit Agreement, (ii) all Obligations under (and
as defined in) any Additional Credit Facility and under any other document
relating to such Additional Credit Facility (to the extent that the
Indebtedness under such Additional Credit Facility is designated by the Company
as “First Lien Obligations” for purposes of this Indenture) and (iii) all
hedging obligations secured pursuant to any First Lien Credit Document.  “First Lien Obligations” shall in any event
include:  (a) all interest accrued
or accruing, or which would accrue, absent commencement of an Insolvency or
Liquidation Proceeding (and the effect of provisions such as Section 502(b)(2) of
the Bankruptcy Code), on or after the commencement of an Insolvency or
Liquidation Proceeding in accordance with the rate specified in the relevant
First Lien Document, whether or not the claim for such interest is allowed or
allowable as a claim in such Insolvency or Liquidation Proceeding, (b) any
and all fees and expenses (including attorneys’ and/or financial consultants’
fees and expenses) incurred by the First Lien Agent and the First Lien Secured
Parties on or after the commencement of an Insolvency or Liquidation
Proceeding, whether or not the claim for fees and expenses is allowed or
allowable under Section 502 or 506(b) of the Bankruptcy Code or any
other provision of the Bankruptcy Code or any similar federal, state or foreign
law for the relief of debtors as a claim in such Insolvency or Liquidation
Proceeding, and (c) all obligations and liabilities of each Grantor under
each First Lien Document to which it is a party which, but for the automatic
stay under Section 362(a) of the Bankruptcy Code, would become due
and payable (but in any event not including 


 


11

















 


any
obligations that are in excess of the aggregate principal amount of
Indebtedness permitted under clause (1) of the definition of “Permitted
Liens”).


 


“First Lien Secured Parties” has the meaning
given to the term “Senior Claimholders” in the Intercreditor Agreement.


 


“First
Priority Liens” means all Liens that secure the First Lien Obligations.


 


“Fixed
Charge Coverage Ratio” means, with respect to any specified Person for any
period, the ratio of the Consolidated Cash Flow of such Person and its
Restricted Subsidiaries for such period to the Fixed Charges of such Person for
such period.  In the event that the
specified Person or any of its Restricted Subsidiaries incurs, assumes, Guarantees,
repays or redeems any Indebtedness or issues or redeems preferred stock
subsequent to the commencement of the period for which the Fixed Charge
Coverage Ratio is being calculated but prior to the date on which the event for
which the calculation of the Fixed Charge Coverage Ratio is made (the “Fixed
Charge Coverage Ratio Calculation Date”), then the Fixed Charge Coverage Ratio
shall be calculated giving pro forma
effect to such incurrence, assumption, Guarantee, repayment or redemption of
Indebtedness, or such issuance or redemption of preferred stock, as if the same
had occurred at the beginning of the applicable four-quarter reference period; provided, however,
borrowings in the ordinary course of business under any revolving credit
agreement shall not be given pro forma
effect and shall be included in the calculation of the Fixed Charge Coverage
Ratio only to the extent such borrowings were actually outstanding during the
applicable four-quarter reference period.


 


In
addition, for purposes of calculating the Fixed Charge Coverage Ratio:  (i) acquisitions that have been made by
the specified Person or any of its Restricted Subsidiaries, including through
mergers or consolidations and including any related financing transactions,
during the four-quarter reference period or subsequent to such reference period
and on or prior to the Fixed Charge Coverage Ratio Calculation Date shall be
deemed to have occurred on the first day of the four-quarter reference period
and Consolidated Cash Flow for such reference period shall be calculated
without giving effect to clause (iii) of the proviso set forth in the
definition of Consolidated Net Income; (ii) if since the beginning of such
period any Person (that subsequently became a Restricted Subsidiary or was merged
with or into the Company or any Restricted Subsidiary since the beginning of
such period) shall have made any Investment, acquisition, disposition, merger
or consolidation that would have required adjustment pursuant to this
definition, then the Fixed Charge Coverage Ratio shall be calculated giving pro forma effect thereto for such period
as if such Investment, acquisition, disposition, merger or consolidation had
occurred at the beginning of the applicable four-quarter period; (iii) whenever
pro forma effect is to be given
to an Investment, acquisition, disposition, merger or consolidation and the
amount of income or earnings relating thereto, the pro forma calculations shall
be determined in good faith by a responsible financial or accounting officer of
the Company and shall comply with the requirements of Rule 11-02 of
Regulation S-X promulgated by the SEC; (iv) if any Indebtedness bears a
floating rate of interest and is being given pro
forma effect, the interest on such Indebtedness shall be calculated
as if the rate in effect on the Fixed Charge Coverage Ratio Calculation Date
had been the applicable rate for the entire period (taking into account any
Hedging Obligations applicable to such Indebtedness); (v) interest on a
Capital Lease Obligation shall be the amount 


 


12

















 


recorded
as interest in accordance with GAAP; (vi) interest on any Indebtedness
under a revolving credit facility computed on a pro forma basis shall be computed based upon the average
daily balance of such Indebtedness during the applicable period, and interest
on Indebtedness that may optionally be determined at an interest rate based
upon a factor of a prime or similar rate, a eurocurrency interbank offered
rate, or other rate, shall be deemed to have been based upon the rate actually
chosen, or, if none, then based upon such optional rate chosen as the Company
may designate; (vii) the Consolidated Cash Flow attributable to
discontinued operations, as determined in accordance with GAAP, and operations
or businesses disposed of prior to the Fixed Charge Coverage Ratio Calculation
Date, shall be excluded; and (viii) the Fixed Charges attributable to
discontinued operations, as determined in accordance with GAAP, and operations
or businesses disposed of prior to the Fixed Charge Coverage Ratio Calculation
Date, shall be excluded.


 


“Fixed
Charges” means, with respect to any Person for any period, the sum, without
duplication, of:  (i) the
consolidated interest expense of such Person and its Restricted Subsidiaries
for such period, whether paid or accrued, including, without limitation,
amortization of original issue discount, non-cash interest payments (excluding
any non-cash interest expense attributable to the movement in the mark to market
valuation of Hedging Obligations or other derivative instruments pursuant to
GAAP), 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 (to the extent not already included
above), 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; plus (ii) the consolidated interest
expense of such Person and its Restricted Subsidiaries that was capitalized
during such period; plus (iii) any interest expense on Indebtedness of
another Person that is guaranteed by such Person or one of its Restricted Subsidiaries
or secured by a Lien on assets of such Person or one of its Restricted
Subsidiaries, whether or not such Guarantee or Lien is called upon; plus (iv) cash
dividend payments on any series of preferred stock or Disqualified Stock of
such Person or any of its Restricted Subsidiaries.


 


“Foreign Subsidiary” means any
Subsidiary of the Company that is not a Domestic Subsidiary.


 


“Franchisee” or “Franchisees” means those Persons or entities who have
entered into Franchising Contracts.


 


“Franchising Contracts” means all
contracts pursuant to which the Company or any of its Subsidiaries grants to
any other Person any right, license or right to license, option or right of
first refusal or negotiation to operate franchises and businesses using any of
the Company’s intellectual property.


 


“GAAP” means generally accepted
accounting principles in the United States of America as in effect as of the
Issue Date, unless otherwise specified in this Indenture, including those 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 approved by a significant segment of the
accounting profession.


 


13














 


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


 


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


 


“Government Securities” means direct
obligations of, or obligations guaranteed by, the United States of America
(including any agency or instrumentality thereof) for the payment of which
guarantee or obligations the full faith and credit of the United States is
pledged.


 


“Grantor” means the Company and each
Guarantor that has executed and delivered, or may from time to time hereafter
execute and deliver, a Security Document.


 


“Guarantee”
means a guarantee other than by endorsement of negotiable instruments for
collection in the ordinary course of business, direct or indirect, in any
manner including, without limitation, by way of a pledge of assets or through
letters of credit or reimbursement agreements in respect thereof, of all or any
part of any Indebtedness.


 


“Guarantors”
means each of:  (i) each Domestic
Subsidiary, as of the Issue Date, other than Collect Air; and (ii) any
other Subsidiary that executes a Note Guarantee in accordance with the
provisions of this Indenture, and their respective successors and assigns.


 


“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; (ii) other agreements or arrangements designed to protect such
Person against fluctuations in interest rates or the value of foreign
currencies purchased or received by such Person in the ordinary course of
business; and (iii) any commodity futures or option contract or other
similar commodity hedging contract designed to protect such Person against
fluctuations in commodity prices.


 


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


 


“Indebtedness”
means, with respect to any specified Person, any indebtedness (including
Acquired Debt) of such Person, whether or not contingent, in respect of:  (i) borrowed money; (ii) evidenced
by bonds, notes, debentures or similar instruments or letters of credit (or
reimbursement agreements in respect thereof); (iii) banker’s acceptances; (iv) representing
Capital Lease Obligations; (v) the balance deferred and unpaid of the
purchase price of any property, except any such balance that constitutes an
accrued expense, a trade payable or a contingent obligation to pay a purchase
price as long as such obligation remains contingent; or (vi) representing any
net obligations under any Hedging Obligations, if and to the extent any of the
preceding items (other than letters of credit and Hedging Obligations) would
appear as a liability upon a balance sheet of the specified Person prepared in
accordance with GAAP.  In addition, the term
“Indebtedness” includes all Indebtedness of others secured by a Lien on any
asset of the specified Person (whether or not such Indebtedness is assumed by
the specified Person) and, to


 


14

















 


the
extent not otherwise included, the Guarantee by such Person of any indebtedness
of any other Person. In addition, in the event that the Company obtains any
incremental revolving credit commitments under the Credit Agreement or any
other Credit Facilities, 100% of such commitments shall be deemed to be an
incurrence of Indebtedness solely for purposes of Section 4.09(a) and
clause (i) of the definition of “Permitted Liens,” and any borrowings,
repayments and reborrowings at any time under such incremental revolving credit
commitments shall not be deemed a new incurrence of Indebtedness.


 


The
amount of any Indebtedness outstanding as of any date shall be:  (i) the accreted value thereof, in the
case of any Indebtedness issued with original issue discount; and (ii) the
principal amount thereof, together with any interest thereon that is more than
30 days past due, in the case of any other Indebtedness.


 


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


 


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


 


“Initial
Purchasers” means Banc of America Securities LLC, BMO Capital Markets
Corp., Fifth Third Securities, Inc. and U.S. Bancorp Investments, Inc.


 


“Insolvency or Liquidation Proceeding”
means (i) any voluntary or involuntary case or proceeding under the
Bankruptcy Code with respect to the Company or any Guarantor, (ii) any
other voluntary or involuntary insolvency, reorganization or bankruptcy case or
proceeding, or any receivership, liquidation, reorganization or other similar
case or proceeding with respect to the Company or any Guarantor or with respect
to a material portion of its respective assets, (iii) any liquidation,
dissolution, reorganization or winding-up of the Company or any Guarantor,
whether voluntary or involuntary and whether or not involving insolvency or
bankruptcy or (iv) any assignment for the benefit of creditors or any
other marshalling of assets and liabilities of the Company or any Guarantor.


 


“Institutional
Accredited Investor” means an institution that is an “accredited investor”
as defined in Rule 501(a)(1), (2), (3) or (7) under the Securities Act.


 


“Intercreditor
Agreement” means that certain Intercreditor Agreement to be dated as of the
Issue Date among the Company, the Guarantors, the First Lien Agent, and U.S.
Bank National Association, as Junior Agent.


 


“Investments”
means, with respect to any Person, all investments by such Person in other
Persons (including Affiliates) in the forms of direct or indirect loans
(including guarantees of Indebtedness or other obligations), advances or
capital contributions (excluding commission, travel and similar advances to
officers and employees made in the ordinary course of business), purchases or
other acquisitions for consideration of Indebtedness, Equity Interests or other
securities, together with all items that would be classified as investments on
a balance sheet prepared in accordance with GAAP, excluding (i) Hedging
Obligations entered into for non-speculative purposes, (ii) accounts
receivable and other extensions of trade credit made in the 


 


15

















 


ordinary
course of business, (iii) the acquisition of property and assets
(including Charged-Off Receivables) from suppliers and vendors in the ordinary course
of business, and (iv) prepaid expenses and workers compensation, utility,
lease and similar deposits in the ordinary course of business.  If the Company or any Restricted Subsidiary
of the Company sells or otherwise disposes of any Equity Interests of any
direct or indirect Restricted Subsidiary of the Company such that, after giving
effect to any such sale or disposition, such Person is no longer a Restricted
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 in an
amount determined as provided in the final paragraph of Section 4.08
hereof.  The acquisition by the Company
or any Subsidiary of the Company of a Person that holds an Investment in a
third Person will be deemed to be an Investment by the Company or such
Subsidiary in such third Person in an amount equal to the fair market value of
the Investment held by the acquired Person in such third Person in an amount
determined as provided in the final paragraph of Section 4.08 of this
Indenture.


 


“Issue Date” means April 7,
2010, the date of initial issuance of the Notes.


 


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


 


“Letter
of Transmittal” means the letter of transmittal required to be delivered in
connection with the Exchange Offer.


 


“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 UCC
(or equivalent statutes) of any jurisdiction.


 


“Net
Income” means, with respect to any Person, the net income (loss) of such
Person and its Restricted Subsidiaries, 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; or (b) the disposition of any securities by such Person or any
of its Restricted Subsidiaries or the extinguishment of any Indebtedness of such
Person or any of its Restricted Subsidiaries;


 


(ii)           the portion of
such net income attributable to non-controlling interests of Subsidiaries; and


 


16

















 


(iii)          any extraordinary or nonrecurring gain or loss, together
with any related provision for taxes on such extraordinary or nonrecurring gain
or loss.


 


“Net
Proceeds” means the aggregate cash proceeds received by the Company or any
of its Restricted Subsidiaries in respect of any Asset Sale (including, without
limitation, any cash received upon the sale or other disposition of any
non-cash consideration received in any Asset Sale), 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, in
each case after taking into account any available tax credits or deductions and
any tax sharing arrangements and amounts required to be applied to the
repayment of Indebtedness secured by a Lien on the asset or assets that were
the subject of such Asset Sale and any reserve for adjustment in respect of the
sale price of such asset or assets established in accordance with GAAP.


 


“Non-Guarantor
Restricted Subsidiary” means any Restricted Subsidiary of the Company that
is not a Guarantor.


 


“Non-Recourse
Debt” means Indebtedness:  (i) as
to which neither the Company nor any of its Restricted Subsidiaries (a) provides
credit support of any kind (including any undertaking, agreement or instrument
that would constitute Indebtedness), (b) is directly or indirectly liable as a
guarantor or otherwise, or (c) constitutes the lender; and (ii) no
default with respect to which (including any rights that the holders thereof
may have to take enforcement action against an Unrestricted Subsidiary) would
permit upon notice, lapse of time or both any holder of any other Indebtedness
(other than the Notes) of the Company or any of its Restricted Subsidiaries to
declare a default on such other Indebtedness or cause the payment thereof to be
accelerated or payable prior to its stated maturity.


 


“Note
Custodian” means the Trustee, as custodian for DTC or any successor
Depositary with respect to the Global Notes, or any successor entity thereto.


 


“Note
Guarantee” means, individually and collectively, the guarantees given by
the Guarantors pursuant to Article 10 hereof, including a notation in the
Notes substantially in the form attached hereto as Exhibit D.


 


“Notes”
has the meaning assigned to it in the preamble to this Indenture.


 


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


 


“Offering”
means the sale of 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, any Vice-President or, with respect to a limited liability company,
any Manager of such Person, as applicable.


 


17

















 


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


 


“Opinion
of Counsel” means an opinion from legal counsel who is reasonably
acceptable to the Trustee, that meets the requirements of Section 13.05
hereof.  The counsel may be an employee
of or counsel to the Company (or any Guarantor, if applicable).


 


“Parent
Company” means CA Holding, Inc. or any other direct or indirect parent
of the Company.


 


“Participant”
means, with respect to DTC, a Person who has an account with DTC.


 


“Permitted Additional Pari Passu Obligations”
means obligations under any Additional Notes or other Indebtedness secured by
the Second Priority Liens and otherwise ranking pari passu with the Notes that
is in each case permitted by this Indenture; provided
that (i) the representative of such Permitted Additional Pari Passu
Obligation executes a joinder agreement to the Security Agreement and the
Intercreditor Agreement, in each case in the form attached thereto, agreeing to
be bound thereby and (ii) the Company has designated such Indebtedness as “Permitted
Additional Pari Passu Obligations” under the Security Agreement and the
Intercreditor Agreement.


 


“Permitted Businesses” means the
purchase, management, collection and sale of Charged-off Receivables, any other
business or businesses that are similar in nature to such business, and any
business that is reasonably ancillary, incidental, complementary or related
thereto or any reasonable extension, development or expansion thereof, in each
case, as determined in good faith by the Board of Directors of the Company.


 


“Permitted Holders” means (i) KRG
Capital Management, L.P. and each of its Affiliates or funds controlled or
managed by it or its Affiliates other than any portfolio companies of any of
the foregoing, (ii) P. Scott Lowery, Paul A. Larkins, L. Heath
Sampson, Brian W. Tuite, Richard Roth, Thomas G. Good and any spouse or lineal
descendant of such Person or any trust or estate the sole beneficiary of which
is either such Person or any spouse or lineal descendent of such Person, and (iii) the
Parent Company.  Any Person or group
whose acquisition of Beneficial Ownership constitutes a Change of Control in
respect of which a Change of Control Offer is made in accordance with the
requirements of this Indenture (or would result in a Change of Control Offer in
the absence of the waiver of such requirement by Holders in accordance with
this Indenture) will thereafter constitute additional Permitted Holders.


 


“Permitted
Investments” means:


 


(i)            any Investment
in the Company or in a Restricted Subsidiary of the Company;


 


(ii)           any Investment
in Cash Equivalents;


 


18

















 


(iii)          any Investment
by the Company or any Restricted Subsidiary of the Company in a Person if as a
result of such Investment:  (a) such
Person becomes a Restricted Subsidiary of the Company; or (b) such Person,
in one transaction or a series of related transactions, is merged, consolidated
or amalgamated with or into, or transfers or conveys substantially all of its
assets to, or is liquidated into, the Company or a Restricted Subsidiary of the
Company;


 


(iv)          any Investment
made as a result of the receipt of non-cash consideration from an Asset Sale
that was made pursuant to and in compliance with Section 4.07 hereof;


 


(v)           Investments
existing as of, or required to be made pursuant to any agreement or obligation
in effect on, the Issue Date;


 


(vi)          any acquisition
of assets solely in exchange for the issuance of Equity Interests of the
Company or the Parent Company;


 


(vii)         accounts
receivable, endorsements for collection, deposits or similar Investments
arising in the ordinary course of business;


 


(viii)        any Investment
by the Company or a Restricted Subsidiary in assets of a Permitted Business or
assets to be used in a Permitted Business;


 


(ix)           any
Investments, including stock, obligations or securities, received in settlement
of debts or obligations created in the ordinary course of business and owing to
the Company or any Subsidiary, in satisfaction of judgments, as a result of any
bankruptcy or insolvency proceeding or upon the foreclosure or enforcement of
any Lien in favor of the Company or any of its Subsidiaries;


 


(x)            the acceptance
of notes payable from and loans and advances to officers, directors and
employees of the Company or its Subsidiaries in payment for the purchase of
Capital Stock;


 


(xi)           any other
Investment acquired by the Company or any of its Restricted Subsidiaries, (a) in
exchange for any other Investment or accounts receivable held by the Company or
any such Restricted Subsidiary in connection with or as a result of a
bankruptcy, workout, reorganization or recapitalization of the issuer of such
other Investment or accounts receivable (including any trade creditor or
customer); or (b) as a result of a foreclosure by the Company or any of
its Restricted Subsidiaries with respect to any secured Investment or other
transfer of title with respect to any secured Investment in default;


 


(xii)          Hedging
Obligations permitted under clause (vii) of Section 4.09 hereof;


 


(xiii)         guarantees of
Indebtedness permitted under Section 4.09 hereof;


 


19

















 


(xiv)        Investments
consisting of purchases and acquisitions of Charged-off Receivables portfolios,
inventory, supplies, material or equipment;


 


(xv)         advances to, or
guarantees of Indebtedness of, employees not in excess of $2.0 million
outstanding at any one time, in the aggregate;


 


(xvi)        loans and
advances to officers, directors and employees for business-related travel
expenses, moving expenses and other similar expenses, in each case incurred in
the ordinary course of business;


 


(xvii)       advances, loans
or extensions of trade credit in the ordinary course of business by the Company
or any of its Restricted Subsidiaries;


 


(xviii)      any Investment
in any Person to the extent such Investment represents the non-cash portion of
the consideration received in connection with an Asset Sale consummated in
compliance with Section 4.07; and


 


(xix)         any other
investment in any Person 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 (xix) since the Issue Date and existing at the time such
Investment was made, did not exceed $10 million.


 


“Permitted
Liens” means:


 


(i)            Liens incurred
to secure Obligations in respect of any Indebtedness under (x) Credit
Facilities and (y) Permitted Additional Pari Passu Obligations; provided that the aggregate amount of Indebtedness permitted
to be secured pursuant to this clause (i) shall not, at the time of such
incurrence thereof, exceed the greater of (1) the amount permitted to be
incurred pursuant to Section 4.09(b)(i) hereof and (2) the
lesser of (A) 35% of Estimated Remaining Proceeds and (B) an amount
equal to the Consolidated Cash Flow of the Company and its Restricted
Subsidiaries for the most recently ended four fiscal quarters ending
immediately prior to such date for which financial statements are available; provided, further,  that such Liens
under this clause (i) are subject to the provisions of the Intercreditor
Agreement or any other intercreditor agreement consistent with the terms of the
Intercreditor Agreement;


 


(ii)           Liens in favor
of the Company or the Guarantors;


 


(iii)          Liens on
property (other than property constituting Collateral prior to such incurrence
pursuant to this clause (iii) if the Notes are granted a Lien on such property
on an equal and ratable basis, unless the Obligation secured by any such Lien
is subordinate or junior in right of payment to the Notes, in which case the
Lien securing such Obligation must be subordinate and junior to the Lien
securing the Notes with the same or lesser relative priority as such Obligation
shall have with respect to the Notes;


 


20

















 


(iv)          Liens on
property of a Person existing at the time such Person becomes a Restricted
Subsidiary or is merged with or into or consolidated with the Company or any
Restricted Subsidiary of the Company, provided
that such Liens were in existence prior to the contemplation of such
acquisition, merger or consolidation and do not extend to any assets other than
those of the Person acquired or merged into or consolidated with the Company or
the Restricted Subsidiary;


 


(v)           Liens on
property existing at the time of acquisition thereof by the Company or any
Restricted Subsidiary of the Company so long as such Lien was not incurred in
contemplation of such acquisition, provided that
such Liens are not extended to the property and assets of the Company and its
Restricted Subsidiaries other than the property being acquired;


 


(vi)           Liens to secure
the performance of statutory obligations, surety or appeal bonds, performance
bonds or other obligations of a like nature incurred in the ordinary course of
business;


 


(vii)         Liens to secure
Indebtedness (including Capital Lease Obligations and purchase money
obligations (including extensions and renewals thereof)) permitted by Section 4.09(b)(iv) hereof;


 


(viii)        Liens existing
on the Issue Date;


 


(ix)           Liens for
taxes, assessments or governmental charges or claims that are not yet
delinquent or that are being contested in good faith by appropriate proceedings
promptly instituted and diligently concluded, provided
that any reserve or other appropriate provision as shall be required
in conformity with GAAP shall have been made therefor;


 


(x)            Liens incurred
or deposits made in the ordinary course of business in connection with general
insurance, workers’ compensation, unemployment insurance and other types of
social security, old age pension or public liability obligations or to secure
the payment or performance of bids, tenders, leases, statutory or regulatory
obligations, surety, stay, or appeal bonds, performance bonds or other obligations
of a like nature incurred in the ordinary course of business;


 


(xi)           easements,
rights-of-way, restrictions, licenses, sewers, electric lines, communications
lines, defects or irregularities in title and other similar charges, zoning or
other similar restrictions as to the use of real properties, or encumbrances
not interfering in any material respect with the business of the Company or any
of its Restricted Subsidiaries;


 


(xii)          Liens securing
reimbursement obligations with respect to letters of credit which encumber only
documents and other property relating to such letters of credit and the
products and proceeds thereof;


 


(xiii)         judgment and
attachment Liens not giving rise to an Event of Default;


 


21

















 


(xiv)        Liens
encumbering deposits made to secure obligations arising from statutory,
regulatory, contractual or warranty requirements;


 


(xv)         Liens arising
out of consignment or similar arrangements for the sale of goods;


 


(xvi)        any Liens,
interest or title of a lessor in property subject to any operating lease;


 


(xvii)       statutory Liens
of landlords and Liens of carriers, warehousemen, mechanics, suppliers,
materialmen, repairmen and other Liens imposed by law incurred in the ordinary
course of business for sums not yet delinquent or being contested in good faith
by appropriate proceedings, if such reserve or other appropriate provision, if
any, as shall be required by GAAP shall have been made in respect thereof;


 


(xviii)      Liens upon
specific items of inventory or other goods and proceeds of any Person securing
such Person’s obligations in respect of bankers’ acceptances issued or created
for the account of such Person to facilitate the purchase, shipment, or storage
of such inventory or other goods;


 


(xix)         leases or
subleases granted to others that do not materially interfere with the ordinary
course of business of the Company and its Restricted Subsidiaries;


 


(xx)          Liens in favor
of collecting or payer banks having a right of setoff, revocation, refund or
chargeback with respect to money or instruments of the Company or any
Subsidiary on deposit with or in possession of such bank;


 


(xxi)         Liens in favor
of customs and revenue authorities arising as a matter of law to secure payment
of customs duties in connection with the importation of goods in the ordinary
course of business;


 


(xxii)        Liens (a) of
a collection bank arising under the UCC on items in the course of collection, (b)
encumbering reasonable customary initial deposits and margin deposits and
similar Liens attaching to commodity trading accounts or other commodity or
brokerage accounts incurred in the ordinary course of business, and (c) in
favor of banking institutions arising as a matter of law encumbering deposits
(including the right of set-off) and which are within the general parameters
customary in the banking industry;


 


(xxiii)       Liens in favor
of the sellers of Charged-off Receivables securing residual interests owed to
such sellers from amounts collected in respect of such Charged-off Receivables and
Liens on Charged-off Receivables deemed to exist pursuant to agreements whereby
the seller of such Charged-off Receivables retains the right to recall such
Charged-off Receivables for a specified period of time;


 


22

















 


(xxiv)       Liens with
respect to the assets of a Restricted Subsidiary granted by such Restricted
Subsidiary to the Company or to a Guarantor to secure Indebtedness owing to the
Company or such Guarantor;


 


(xxv)        Liens to secure
any Permitted Refinancing Indebtedness (or successive Permitted Refinancing
Indebtedness) which refinances as a whole, or in part, any Indebtedness secured
by any Lien referred to in the foregoing clauses (i), (iv), (v), (vii),
and (viii); provided, that:  (A) such new Lien shall be limited to
all or part of the same property that secured the original Lien (plus
improvements to or on such property) and (B) the Indebtedness secured by
such Lien at such time is not increased to any amount greater than the sum of:  (1) the outstanding principal amount or,
if greater, committed amount, of the Indebtedness secured by Liens described
under clause (i), (iv), (v), (vii) or (viii) at the time the original
Lien became a Permitted Lien under this Indenture and (2) an amount
necessary to pay any fees and expenses, including premiums, related to such
Permitted Refinancing Indebtedness;


 


(xxvi)       Liens on the
Collateral granted under the Security Documents in favor of the Collateral
Agent to secure the Notes (other than additional notes) and the Note
Guarantees;


 


(xxvii)      Liens on shares
of Capital Stock of any Unrestricted Subsidiary to secure Indebtedness of such
Unrestricted Subsidiary;


 


(xxviii)     Liens on funds
held on behalf of clients of the Company and its Subsidiaries, arising from the
collection of Charged-off Receivables placed with the Company or its
Subsidiaries on a contingency basis;


 


(xxix)       licenses of
intellectual property;


 


(xxx)        Cargill Liens;


 


(xxxi)       Liens arising
from the sale of accounts, payment intangibles and promissory notes to the
extent (a) such sale is permitted pursuant to the terms of this Indenture and (b) such
Liens relate only to the assets that were the subject of such sale; and


 


(xxxii)      Liens not
otherwise permitted by clauses (i) through (xxxi) that are incurred in
the ordinary course of business of the Company or any Subsidiary of the Company
with respect to obligations that do not exceed $15.0 million at any one time
outstanding.


 


“Permitted
Payments to the Parent Company” means:


 


(i)    payments to the Parent Company in an amount sufficient to permit
the Parent Company to pay reasonable and necessary operating expenses and other
general corporate expenses to the extent such expenses relate or are fairly
allocable to the Company and its Subsidiaries including franchise taxes and any
reasonable professional fees and expenses not in excess of $1.0 million in the
aggregate during any fiscal year;


 


23














 


(ii)           payments to the
Parent Company to enable the Parent Company to pay foreign, federal, state or
local tax liabilities (“Tax Payment”), not to exceed the amount of any tax
liabilities that would be otherwise payable by the Company and its Subsidiaries
to the appropriate taxing authorities if they filed separate tax returns, to
the extent that the Parent Company has an obligation to pay such tax
liabilities relating to the operations, assets or capital of the Company or its
Subsidiaries; provided that (a) notwithstanding
the foregoing, in the case of determining the amount of a Tax Payment that is
permitted to be paid by the Company and any of its U.S. Subsidiaries in respect
of their Federal income tax liability, such payment shall be determined
assuming that the Company is the parent company of an affiliated group (the “Company
Affiliated Group”) filing a consolidated Federal income tax return and that the
Parent Company and each such U.S. Subsidiary is a member of the Company
Affiliated Group and (b) any Tax Payments shall either be used by the
Parent Company to pay such tax liabilities within 90 days of the Parent Company’s
receipt of such payment or refunded to the party from whom the Parent Company
received such payments;


 


(iii)          payments to the
Parent Company in an amount sufficient to pay amounts owed pursuant to the
Sponsor Management Agreement as in effect on the Issue Date; and


 


(iv)          payments to the
Parent Company in an amount sufficient to permit the Parent Company to pay
amounts permitted by Section 4.08(e)(v) and 4.08(e)(vii) hereof.


 


“Permitted
Refinancing Indebtedness” means any Indebtedness of the Company or any of
its Restricted 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 Restricted Subsidiaries (other than
intercompany Indebtedness) and whether or not occurring contemporaneously with
the payoff of the previously existing Indebtedness subject to such transaction;
provided that:  (i) the principal amount (or accreted
value, if applicable) of such Permitted Refinancing Indebtedness does not
exceed the principal amount of (or accreted value, if applicable), plus accrued
interest on the Indebtedness so extended, refinanced, renewed, replaced,
defeased or refunded (plus the amount of reasonable expenses incurred in
connection therewith including premiums paid, if any, to the holder thereof); (ii) such
Permitted Refinancing Indebtedness has a final maturity date either no earlier
than the final maturity date of the Indebtedness being extended, refinanced,
renewed, replaced, defeased or refunded or 91 days following the maturity of
the Notes, 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 no earlier 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; and (iv) such Indebtedness is incurred
either by the Company or by the Restricted Subsidiary who is the obligor on the
Indebtedness being extended, refinanced, renewed, replaced, defeased or
refunded.


 


24

















 


“Person”
means any individual, corporation, company, partnership, joint venture,
association, joint-stock company, trust, unincorporated organization or
government or agency or political subdivision thereof (including any
subdivision or ongoing business of any such entity or substantially all of the
assets of any such entity, subdivision or business).


 


“Pledge Agreement” means the
pledge agreement to be dated as of the Issue Date among the Collateral Agent,
the Company and the Guarantors granting, among other things, a Second Priority
Lien on the pledged equity constituting part of the Collateral in favor of the
Collateral Agent for its benefit and for the benefit of the Secured Parties, as
amended, modified, restated, supplemented or replaced from time to time in
accordance with its terms.


 


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


 


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


 


“Registration
Rights Agreement” means that certain agreement among the Company, the
Guarantors and the Initial Purchasers that may require the Company to file a
shelf registration statement to register resales of the Notes.


 


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


 


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


 


“Replacement
Assets” means, on any date, property or assets, including Charged-off
Receivables, of a nature or type that are used in any Permitted Business.


 


“Responsible
Officer,” when used with respect to the Trustee, means any officer within
the corporate trust department 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
Definitive Note” means a Definitive Note bearing the Private Placement
Legend.


 


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


 


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


 


25

















 


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


 


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


 


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


 


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


 


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


 


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


 


“SEC” means the Securities and
Exchange Commission.


 


“Second Lien Obligations” means
the Indebtedness and Obligations under this Indenture and the Notes and any
Permitted Additional Pari Passu Obligations.


 


“Second Priority Liens” means all
Liens in favor of the Collateral Agent on Collateral securing the Second Lien
Obligations, including, without limitation, any Permitted Additional Pari Passu
Obligations.


 


“Secured
Parties” has the meaning assigned to such term in the Security Agreement.


 


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


 


“Security Agreement” means that
certain Second Lien Security Agreement to be dated as of the Issue Date among
the Collateral Agent, the Company and the Guarantors granting, among other
things, a Second Priority Lien on the Collateral subject to Permitted Liens, in
each case in favor of the Collateral Agent for its benefit and for the benefit
of the Secured Parties, as amended, modified, restated, supplemented or
replaced from time to time in accordance with its terms.


 


“Security Documents” means the
Security Agreement, the Pledge Agreement, any mortgages, the Intercreditor
Agreement and all of the security agreements, pledges, collateral assignments,
deeds of trust, trust deeds, control agreements or other instruments evidencing
or creating or purporting to create any security interests in favor of the
Collateral Agent for its benefit and for the benefit of the Secured Parties, in
all or any portion of the Collateral, as amended, modified, restated,
supplemented or replaced from time to time.


 


“Shelf
Registration Statement” shall have the meaning specified in the
Registration Rights Agreement.


 


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


 


26

















 


“Sponsor
Management Agreement” means the management agreement dated as of August 5,
2005 among KRG Capital Management, L.P., the Company and Parent Company, as
amended.


 


“Stated
Maturity” means, with respect to any installment of interest or principal
on any series of Indebtedness, the date on which such payment of interest or
principal was scheduled to be paid in the original documentation governing such
Indebtedness, and shall not include any contingent obligations to repay, redeem
or repurchase any such interest or principal prior to the date originally
scheduled for the payment thereof.


 


“Subsidiary”
means, with respect to any Person:  (i) 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 of the other Subsidiaries of that Person (or a
combination thereof); and (ii) 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 of one or more Subsidiaries of such Person (or any combination thereof).


 


“Tax
Payment” means any payment of foreign, federal, state or local tax
liabilities.


 


“Tax Sharing Agreement” means the Tax
Sharing Agreement, effective as of January 1, 2010, among Parent Company
and the subsidiaries of Parent Company that are signatories thereto.


 


“TIA”
means the Trust Indenture Act of 1939 (15 U.S.C. Sections 77aaa-77bbbb) as in
effect on the date on which this Indenture is qualified under the TIA, except
as provided in Section 9.03 hereof.


 


“Treasury Rate” means, as obtained by the
Company, with respect to the Notes, as of the applicable redemption date, the
yield to maturity as of such redemption date of United States Treasury
securities with a constant maturity (as compiled and published in the most
recent Federal Reserve Statistical Release H.15(519) that has become publicly
available at least two Business Days prior to such redemption date (or, if such
Statistical Release is no longer published, any publicly available source of
similar market data)) most nearly equal to the period from such redemption date
to April 1, 2014; provided, that if the period from such
redemption date to April 1, 2014 is less than one year, the weekly average
yield on actually traded United States Treasury securities adjusted to a
constant maturity of one year will be used.


 


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


 


“UCC” means the Uniform Commercial
Code as in effect from time to time in the State of New York; provided, however, that,
at any time, if by reason of mandatory provisions of 


 


27

















 


law,
any or all of the perfection or priority of the Collateral Agent’s security
interest in any item or portion of the Collateral is governed by the Uniform
Commercial Code as in effect in a jurisdiction other that the State of New
York, the term “UCC” shall mean the Uniform Commercial Code as in effect, at
such time, in such other jurisdiction for purposes of the provisions hereof
relating to such perfection or priority and for purposes of definitions
relating to such provisions.


 


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


 


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


 


“Unrestricted Subsidiary” means any
Subsidiary of the Company that is designated by the Board of Directors as an
Unrestricted Subsidiary (and any Subsidiary of an Unrestricted Subsidiary)
pursuant to a board resolution, but only to the extent that such
Subsidiary:  (i) has no Indebtedness
other than Non-Recourse Debt; (ii) is not a party to any agreement,
contract, arrangement or understanding with the Company or any Restricted
Subsidiary of the Company unless the terms of any such agreement, contract,
arrangement or understanding are no less favorable to the Company or such
Restricted Subsidiary than those that might be obtained at the time from
Persons who are not Affiliates of the Company; (iii) is a Person with
respect to which neither the Company nor any of its Restricted Subsidiaries has
any direct or indirect obligation (a) to subscribe for additional Equity
Interests or (b) to maintain or preserve such Person’s financial condition
or to cause such Person to achieve any specified levels of operating results;
and (iv) has not guaranteed or otherwise directly or indirectly provided
credit support for any Indebtedness of the Company or any of its Restricted
Subsidiaries.


 


Any
designation of a Subsidiary of the Company as an Unrestricted Subsidiary shall
be evidenced to the Trustee by filing with the Trustee a certified copy of the
board resolution giving effect to such designation and an Officers’ Certificate
certifying that such designation complied with the preceding conditions and was
permitted by Section 4.08 hereof. 
If, at any time, any Unrestricted Subsidiary would fail to meet the
preceding requirements as an Unrestricted Subsidiary, it shall thereafter cease
to be an Unrestricted Subsidiary for purposes of this Indenture and any
Indebtedness of such Subsidiary shall be deemed to be incurred by a Restricted
Subsidiary of the Company as of such date and, if such Indebtedness is not
permitted to be incurred as of such date under Section 4.09 hereof, the
Company shall be in default of such covenant. 
The Board of Directors of the Company may at any time designate any
Unrestricted Subsidiary to be a Restricted Subsidiary; provided that such designation shall be
deemed to be an incurrence of Indebtedness by a Restricted Subsidiary of the
Company of any outstanding Indebtedness of such Unrestricted Subsidiary and
such designation shall only be permitted if (i) such Indebtedness is permitted
under Section 4.09 hereof, calculated on a pro forma basis as if such designation had occurred at the
beginning of the four-quarter reference period; and (ii) no Default or
Event of Default would be in existence following such designation.


 


28

















 


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


 


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


 


“Weighted
Average Life to Maturity” means, when applied to any Indebtedness at any
date, the number of years obtained by dividing: 
(i) the sum of the products of (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, and (b) the
number of years (calculated to the nearest one-twelfth) that will elapse
between such date and the making of such payment; by (ii) the then
outstanding principal amount of such Indebtedness.


 


SECTION 1.02.               Other
Definitions.


 


	
  Term

  	
   

  	
  Defined in

  Section

  
	
   

  	
   

  	
   

  
	
  “Affiliate
  Transaction”

  	
   

  	
  4.12

  
	
  “Authentication
  Order”

  	
   

  	
  2.02

  
	
  “Change
  of Control Offer”

  	
   

  	
  4.06

  
	
  “Change
  of Control Payment”

  	
   

  	
  4.06

  
	
  “Change
  of Control Payment Date”

  	
   

  	
  4.06

  
	
  “Company
  Affiliated Group”

  	
   

  	
  1.01

  
	
  “Covenant
  Defeasance”

  	
   

  	
  8.03

  
	
  “DTC”

  	
   

  	
  2.03

  
	
  “Event
  of Default”

  	
   

  	
  6.01

  
	
  “Excess
  Proceeds”

  	
   

  	
  4.07

  
	
  “Final
  Offering Memorandum”

  	
   

  	
  9.01

  
	
  “Fixed
  Charge Coverage Ratio Calculation Date”

  	
   

  	
  1.01

  
	
  “incur”

  	
   

  	
  4.09

  
	
  “Legal
  Defeasance”

  	
   

  	
  8.02

  
	
  “Offer”

  	
   

  	
  3.09

  
	
  “Offer
  Amount”

  	
   

  	
  3.09

  
	
  “Offer
  Period”

  	
   

  	
  3.09

  
	
  “Other
  Debt”

  	
   

  	
  4.07

  
	
  “Paying
  Agent”

  	
   

  	
  2.03

  
	
  “Payment
  Default”

  	
   

  	
  6.01

  
	
  “Permitted
  Debt”

  	
   

  	
  4.09

  
	
  “Purchase
  Date”

  	
   

  	
  3.09

  
	
  “Registrar”

  	
   

  	
  2.03

  
	
  “Restricted
  Payments”

  	
   

  	
  4.08

  



 


29

















 


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.


 


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


 


“indenture securities” means the Notes and the Note Guarantees;


 


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


 


“indenture to be qualified” means this Indenture;


 


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


 


“obligor” on the Notes means the Company or any Guarantor and any
successor obligor upon the Notes.


 


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:


 


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


 


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


 


(iii)          “or” is not
exclusive;


 


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


 


(v)           provisions
apply to successive events and transactions;


 


(vi)          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; and


 


(vii)         for the
avoidance of doubt, any references to “interest” shall include any Additional
Interest that may be payable.


 


30

















 


ARTICLE 2


 


THE NOTES


 


SECTION 2.01.               Form and
Dating.


 


The
Notes and the Trustee’s certificate of authentication shall be substantially in
the form of Exhibit A hereto.  The
notation on each Note relating to the Note Guarantees shall be substantially in
the form set forth on Exhibit D hereto. 
The Notes may have notations, legends or endorsements required by law,
stock exchange rule or usage.  Each
Note shall be dated the date of its authentication.  The Notes shall be in denominations of $2,000
and integral multiples of $1,000 in excess thereof.


 


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


 


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


 


SECTION 2.02.               Execution and
Authentication.


 


Two
Officers shall sign the Notes for the Company by manual or facsimile signature.


 


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


 


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


 


31

















 


The
Trustee shall, upon a written order of the Company signed by an Officer (the “Authentication
Order”), authenticate Notes, with the Note Guarantees endorsed thereon, for
original issue up to the aggregate principal amount stated in the
Authentication Order.  The aggregate
principal amount of the Notes that may be issued under this Indenture is
unlimited.


 


The
Trustee may appoint an authenticating agent acceptable to the Company to
authenticate Notes.  An authenticating
agent may authenticate Notes whenever the Trustee may do so.  Each reference in this Indenture to
authentication by the Trustee includes authentication by such agent.  An authenticating agent has the same rights
as an Agent to deal with Holders or an Affiliate of the Company.


 


SECTION 2.03.               Registrar and
Paying Agent.


 


The
Company and the Guarantors shall maintain an office or agency where Notes may
be presented for registration of transfer or for exchange (“Registrar”) and an
office or agency where Notes may be presented for payment (“Paying Agent”).  The Registrar shall keep a register of the
Notes and of their transfer and exchange. 
The Company may appoint one or more co-registrars and one or more
additional paying agents.  The term “Registrar”
includes any co-registrar and the term “Paying Agent” includes any additional
paying agent.  The Company shall notify
the Trustee in writing of the name and address of any Agent not a party to this
Indenture.  The Company may change the
Paying Agent or Registrar without prior notice to the Holders of the Notes, or
the Company or any of its Subsidiaries or the Parent Company may act as Paying
Agent or Registrar.  If the Company fails
to appoint or maintain another entity as Registrar or Paying Agent, the Trustee
shall act as such.


 


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


 


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


 


SECTION 2.04.               Paying Agent to
Hold Money in Trust.


 


The
Company shall require each Paying Agent other than the Trustee to agree in
writing that the Paying Agent will hold in trust for the benefit of the Holders
or the Trustee all money held by the Paying Agent for the payment of principal,
premium or interest on the Notes, and will notify the Trustee in writing of any
default by the Company or the Guarantors 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 Guarantor) shall have no further
liability for the money.  If the Company
or a Guarantor 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.


 


32

















 


SECTION 2.05.               Holder Lists.


 


The
Trustee shall preserve in as current a form as is reasonably practicable the
most recent list available to it of the names and addresses of all Holders and
shall otherwise comply with TIA Section 312(a).  If the Trustee is not the Registrar, the
Company and/or the Guarantors shall furnish to the Trustee at least five
Business Days before each interest payment date and at such other times as the
Trustee may request in writing, a list in such form and as of such date as the
Trustee may reasonably require of the names and addresses of the Holders of
Notes and the Company and the Guarantors shall otherwise comply with TIA Section 312(a).


 


SECTION 2.06.               Transfer and
Exchange.


 


(a)           Transfer and
Exchange of Global Notes.  A
Global Note may not be transferred as a whole except by the Depositary to a
nominee of the Depositary, by a nominee of the Depositary to the Depositary or
to another nominee of the Depositary, or by the Depositary or any such nominee
to a successor Depositary or a nominee of such successor Depositary.  All Global Notes will be exchanged by the
Company for Definitive Notes if (i) the Company delivers to the Trustee
written notice from the Depositary that it is unwilling or unable to continue
to act as Depositary or that it is no longer a clearing agency registered under
the Exchange Act and, in either case, a successor Depositary is not appointed
by the Company within 90 days after the date of such notice from the Depositary
or (ii) the Company in its sole discretion determines that the Global
Notes (in whole but not in part) should be exchanged for Definitive Notes and
delivers a written notice to such effect to the Trustee.  Upon the occurrence of either of the
preceding events in (i) or (ii) above, and upon the surrender by the
Depositary of the Global Notes, Definitive Notes (accompanied by a notation of
the Note Guarantees duly endorsed by the Guarantors) shall be issued in such
names as the Depositary shall instruct the Trustee.  Global Notes also may be exchanged or
replaced, in whole or in part, as provided in Sections 2.07 and 2.10
hereof.  Every Note authenticated and
delivered in exchange for, or in lieu of, a Global Note or any portion thereof,
pursuant to this Section 2.06 or Section 2.07 or 2.10 hereof, shall
be authenticated and delivered in the form of, and shall be, a Global Note,
except for Definitive Notes issued subsequent to any of the preceding events in
(i) and (ii) above and pursuant to Section 2.06(c), (e) or
(f).  A Global Note may not be exchanged
for another Note other than as provided in this Section 2.06(a), however,
beneficial interests in a Global Note may be transferred and exchanged as
provided in Section 2.06(b), (c) or (f) hereof.


 


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


 


(i)            Transfer of
Beneficial Interests in the Same Global Note.  Beneficial interests in any Restricted Global
Note may be transferred to Persons who take delivery thereof


 


33














 


in the form of a beneficial
interest in the same Restricted Global Note in accordance with the transfer
restrictions set forth in the Private Placement Legend; provided,
however, that prior to the expiration of
the Restricted Period transfers of beneficial interests in the Regulation S
Global Note may not be made to a U.S. Person or for the account or benefit of a
U.S. Person (other than an initial purchaser in a resale pursuant to Rule 144A).  Beneficial interests in any Unrestricted
Global Note may be transferred only to Persons who take delivery thereof in the
form of a beneficial interest in an Unrestricted Global Note.  No written orders or instructions shall be
required to be delivered to the Registrar to effect the transfers described in
this Section 2.06(b)(i).


 


(ii)           All Other
Transfers and Exchanges of Beneficial Interests in Global Notes.  In connection with all transfers and
exchanges of beneficial interests in a Global Note other than a transfer of a
beneficial interest in a Global Note to a Person who takes delivery thereof in
the form of a beneficial interest in the same Global Note, the transferor of
such beneficial interest must deliver to the Registrar either (A) (1) a
written order from a Participant or an Indirect Participant given to the Depositary
in accordance with the Applicable Procedures directing the Depositary to credit
or cause to be credited a beneficial interest in another Global Note in an
amount equal to the beneficial interest to be transferred or exchanged and (2) instructions
given in accordance with the Applicable Procedures containing information
regarding the Participant account to be credited with such increase or (B) (1) a
written order from a Participant or an Indirect Participant given to the
Depositary in accordance with the Applicable Procedures directing the
Depositary to cause to be issued a Definitive Note in an amount equal to the
beneficial interest to be transferred or exchanged and (2) instructions
given by the Depositary to the Registrar containing information regarding the
Person in whose name such Definitive Note shall be registered to effect the
transfer or exchange referred to in (1) above.  Upon consummation of an Exchange Offer by the
Company in accordance with Section 2.06(f), the requirements of this Section 2.06(b)(ii) shall
be deemed to have been satisfied upon receipt by the Registrar of the
instructions contained in the Letter of Transmittal delivered by the Holder of
such beneficial interests in the Restricted Global Notes.  Upon satisfaction of all of the requirements
for transfer or exchange of beneficial interests in Global Notes contained in
this Indenture and the Notes or otherwise applicable under the Securities Act,
the Trustee shall adjust the principal amount of the relevant Global Note(s) pursuant
to Section 2.06(h) hereof.


 


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


 


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


 


34

















 


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


 


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


 


(A)          such exchange
or transfer is effected pursuant to the Exchange Offer in accordance with the
Registration Rights Agreement and Section 2.06(f), and the holder of the
beneficial interest to be transferred, in the case of an exchange, or the
transferee, in the case of a transfer, certifies in the applicable Letter of
Transmittal that it is not (1) a Broker-Dealer, (2) a Person
participating in the distribution of the Exchange Notes or (3) a Person
who is an affiliate (as defined in Rule 144) of the Company;


 


(B)          any such
transfer is effected pursuant to the Shelf Registration Statement in accordance
with the Registration Rights Agreement and a certificate to the effect set
forth in Exhibit B hereto, including the certifications in item (4)(d) thereof,
is delivered by the transferor;


 


(C)          such transfer
is effected by a Broker-Dealer pursuant to the Exchange Offer Registration
Statement in accordance with the Registration Rights Agreement and a
certificate to the effect set forth in Exhibit B hereto, including the
certifications in item (4)(d) thereof, is delivered by the transferor; or


 


(D)          the Registrar
receives the following:


 


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


 


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


 


(iii)          in each such
case set forth in this subparagraph (D), an Opinion of Counsel in form
reasonably acceptable to the Registrar to the effect that such exchange or
transfer is in compliance with the Securities 


 


35

















 


Act and that the
restrictions on transfer contained herein and in the Private Placement Legend
are not required in order to maintain compliance with the Securities Act.


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


36

















 


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


 


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


 


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


 


(ii)           [Reserved].


 


(iii)          Beneficial
Interests in Restricted Global Notes to Unrestricted Definitive Notes. A holder of a
beneficial interest in a Restricted Global Note may exchange such beneficial
interest for an Unrestricted Definitive Note or may transfer such beneficial
interest to a Person who takes delivery thereof in the form of an Unrestricted
Definitive Note only after the occurrence of any of the events in subsection (i) or
(ii) of Section 2.06(a) and if:


 


(A)          such exchange
or transfer is effected pursuant to the Exchange Offer in accordance with the
Registration Rights Agreement and Section 2.06(f), and the holder of such
beneficial interest, in the case of an exchange, or the transferee, in the case
of a transfer, certifies in the applicable Letter of Transmittal that it is not
(1) a Broker- Dealer, (2) a Person participating in the distribution
of the Exchange Notes or (3) a Person who is an affiliate (as defined in Rule 144)
of the Company;


 


(B)          any such
transfer is effected pursuant to the Shelf Registration Statement in accordance
with the Registration Rights Agreement and a certificate to the effect set
forth in Exhibit B hereto, including the certifications in item (4)(d) thereof,
is delivered by the transferor;


 


(C)          such transfer
is effected by a Broker-Dealer pursuant to the Exchange Offer Registration
Statement in accordance with the Registration Rights Agreement and a
certificate to the effect set forth in Exhibit B hereto, including the
certifications in item (4)(d) thereof, is delivered by the transferor; or


 


37

















 


(D)          the Registrar
receives the following:


 


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


 


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


 


in
each such case set forth in this subparagraph (D), an Opinion of Counsel in
form reasonably acceptable to the Company, to the effect that such exchange or
transfer is in compliance with the Securities Act and that the restrictions on
transfer contained herein and in the Private Placement Legend are not required
in order to maintain compliance with the Securities Act.


 


(iv)          Beneficial
Interests in Unrestricted Global Notes to Unrestricted Definitive Notes. If any holder
of a beneficial interest in an Unrestricted Global Note proposes to exchange
such beneficial interest for an Unrestricted Definitive Note or to transfer
such beneficial interest to a Person who takes delivery thereof in the form of
a Unrestricted Definitive Note, then after the occurrence of any of the events
in subsection (i) or (ii) of Section 2.06(a) and upon the
satisfaction of the conditions set forth in Section 2.06(b)(ii) hereof,
the Trustee shall cause the aggregate principal amount of the applicable Global
Note to be reduced accordingly pursuant to Section 2.06(h) hereof,
and the Company shall execute and the Trustee shall authenticate and deliver to
the Person designated in the instructions an Unrestricted Definitive Note
(accompanied by a notation of the Note Guarantees duly endorsed by the
Guarantors) in the appropriate principal amount.  Any Unrestricted Definitive Note issued in
exchange for a beneficial interest pursuant to this Section 2.06(c)(iv) shall
be registered in such name or names and in such authorized denomination or
denominations as the holder of such beneficial interest shall instruct the
Registrar through instructions from the Depositary and the Participant or
Indirect Participant.  The Trustee shall
deliver such Unrestricted Definitive Notes to the Persons in whose names such
Notes are so registered.  Any
Unrestricted Definitive Note issued in exchange for a beneficial interest
pursuant to this Section 2.06(c)(iv) shall not bear the Private
Placement Legend.  A beneficial interest
in an Unrestricted Global Note cannot be exchanged for a Definitive Note
bearing the Private Placement Legend or transferred to a Person who takes delivery
thereof in the form of a Definitive Note bearing the Private Placement Legend.


 


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


 


(i)            Restricted
Definitive Notes to Beneficial Interests in Restricted Global Notes. If any Holder
of a Restricted Definitive Note proposes to exchange such Note for a beneficial
interest in a Restricted Global Note or to transfer such Restricted Definitive
Notes to a Person


 


38

















 


who takes delivery thereof in the form of a
beneficial interest in a Restricted Global Note, then, upon receipt by the
Registrar of the following documentation:


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


the
Trustee shall cancel the Definitive Note, and increase or cause to be increased
the aggregate principal amount of the appropriate Restricted Global Note or
issue a new Restricted Global Note, as applicable.


 


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


 


(A)          such exchange
or transfer is effected pursuant to the Exchange Offer in accordance with the
Registration Rights Agreement and Section 2.06(f), and the Holder, in the
case of an exchange, or the transferee, in the case of a transfer, certifies in
the applicable


 


39

















 


Letter of Transmittal that
it is not (1) a Broker-Dealer, (2) a Person participating in the
distribution of the Exchange Notes or (3) a Person who is an affiliate (as
defined in Rule 144) of the Company;


 


(B)          any such
transfer is effected pursuant to the Shelf Registration Statement in accordance
with the Registration Rights Agreement and a certificate to the effect set
forth in Exhibit B hereto, including the certifications in item (4)(d) thereof,
is delivered by the transferor;


 


(C)          such transfer
is effected by a Broker-Dealer pursuant to the Exchange Offer Registration
Statement in accordance with the Registration Rights Agreement and a
certificate to the effect set forth in Exhibit B hereto, including the
certifications in item (4)(d) thereof, is delivered by the transferor; or


 


(D)          the Registrar
receives the following:


 


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


 


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


 


(iii)          in each such
case set forth in this subparagraph (D), an Opinion of Counsel in form
reasonably acceptable to the Company to the effect that such exchange or
transfer is in compliance with the Securities Act, that the restrictions on
transfer contained herein and in the Private Placement Legend are not required
in order to maintain compliance with the Securities Act, and such Definitive
Notes are being exchanged or transferred in compliance with any applicable blue
sky securities laws of any State of the United States.


 


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


 


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


 


40

















 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


(A)          such exchange
or transfer is effected pursuant to the Exchange Offer in accordance with the
Registration Rights Agreement and Section 2.06(f), and the Holder, in the
case of an exchange, or the transferee, in the case of a transfer, certifies in
the applicable Letter of Transmittal that it is not (1) a Broker-Dealer, (2) a
Person participating in the distribution of the Exchange Notes or (3) a
Person who is an affiliate (as defined in Rule 144) of the Company;;


 


41

















 


(B)          any such
transfer is effected pursuant to the Shelf Registration Statement in accordance
with the Registration Rights Agreement and a certificate to the effect set
forth in Exhibit B hereto, including the certifications in item (3)(c) thereof,
is delivered by the transferor;


 


(C)          any such
transfer is effected by a Broker-Dealer pursuant to the Exchange Offer
Registration Statement in accordance with the Registration Rights Agreement and
a certificate to the effect set forth in Exhibit B hereto, including the
certifications in item (3)(c) thereof, is delivered by the transferor; or


 


(D)          the Registrar
receives the following:


 


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


 


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


 


(iii)          in each such case
set forth in this subparagraph (D), an Opinion of Counsel in form reasonably
acceptable to the Company to the effect that such exchange or transfer is in
compliance with the Securities Act, that the restrictions on transfer contained
herein and in the Private Placement Legend are not required in order to
maintain compliance with the Securities Act, and such Restricted Definitive
Note is being exchanged or transferred in compliance with any applicable blue
sky securities laws of any State of the United States.


 


(iii)          Unrestricted
Definitive Notes to Unrestricted Definitive Notes.  A Holder of Unrestricted Definitive Notes may
transfer such Notes to a Person who takes delivery thereof in the form of an
Unrestricted Definitive Note.  Upon
receipt of a request for such a transfer, the Registrar shall register the
Unrestricted Definitive Notes pursuant to the instructions from the Holder
thereof.  Unrestricted Definitive Notes
cannot be exchanged for or transferred to Persons who take delivery thereof in
the form of a Restricted Definitive Note.


 


(f)            Exchange Offer.  Upon the occurrence of an Exchange Offer in
accordance with the Registration Rights Agreement, the Company shall issue and,
upon receipt of an Authentication Order in accordance with Section 2.02,
the Trustee shall authenticate one or more Unrestricted Global Notes in an
aggregate principal amount equal to the principal amount of the beneficial
interests in the Restricted Global Notes accepted for exchange in the Exchange
Offer.  Concurrently with the issuance of
such Notes, the Trustee shall cause the aggregate principal amount of the
applicable Restricted Global Notes to be reduced accordingly, and the Company
shall execute and the Trustee shall authenticate and mail to the Persons
designated by the Holders of Definitive Notes so accepted Unrestricted
Definitive Notes in the applicable principal 


 


42

















 


amount.  Any
Notes that remain outstanding after the consummation of an Exchange Offer, and
Exchange Notes issued in connection with an Exchange Offer, shall be treated as
a single class of securities under this Indenture.


 


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


 


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


 


“THE
SECURITY (OR ITS PREDECESSOR) EVIDENCED HEREBY WAS ORIGINALLY ISSUED IN A
TRANSACTION EXEMPT FROM REGISTRATION UNDER SECTION 5 OF THE SECURITIES ACT
OF 1933, AS AMENDED (THE ‘‘SECURITIES ACT’’), AND THE SECURITY EVIDENCED HEREBY
MAY NOT BE OFFERED, SOLD OR OTHERWISE TRANSFERRED IN THE ABSENCE OF SUCH
REGISTRATION OR AN APPLICABLE EXEMPTION THEREFROM. EACH PURCHASER OF THE
SECURITY EVIDENCED HEREBY IS HEREBY NOTIFIED THAT THE SELLER MAY BE
RELYING ON THE EXEMPTION FROM THE PROVISIONS OF SECTION 5 OF THE
SECURITIES ACT PROVIDED BY RULE 144A THEREUNDER. THE HOLDER OF THE SECURITY
EVIDENCED HEREBY AGREES FOR THE BENEFIT OF THE COMPANY THAT (A) SUCH
SECURITY MAY BE RESOLD, PLEDGED OR OTHERWISE TRANSFERRED, ONLY (1)(a) INSIDE
THE U.S. TO A PERSON WHO THE SELLER REASONABLY BELIEVES IS A QUALIFIED
INSTITUTIONAL BUYER (AS DEFINED IN RULE 144A UNDER THE SECURITIES ACT)
PURCHASING FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF A QUALIFIED INSTITUTIONAL
BUYER IN A TRANSACTION MEETING THE REQUIREMENTS OF RULE 144A UNDER THE
SECURITIES ACT, (b) OUTSIDE THE U.S. TO A FOREIGN PERSON IN A TRANSACTION
MEETING THE REQUIREMENTS OF RULE 903 OR RULE 904 OF REGULATION S UNDER THE
SECURITIES ACT, (c) PURSUANT TO AN EXEMPTION FROM REGISTRATION UNDER THE
SECURITIES ACT PROVIDED BY RULE 144 THEREUNDER (IF APPLICABLE) OR (d) IN
ACCORDANCE WITH ANOTHER EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE
SECURITIES ACT (AND BASED UPON AN OPINION OF COUNSEL ACCEPTABLE TO THE COMPANY
IF THE COMPANY SO REQUESTS), (2) TO THE COMPANY OR (3) PURSUANT TO AN
EFFECTIVE REGISTRATION STATEMENT AND, IN EACH CASE, IN ACCORDANCE
WITH ANY APPLICABLE SECURITIES LAWS OF ANY STATE OF THE U.S. OR ANY OTHER
APPLICABLE JURISDICTION AND (B) THE HOLDER WILL, AND EACH SUBSEQUENT
HOLDER IS REQUIRED TO, NOTIFY ANY PURCHASER OF THE SECURITY EVIDENCED HEREBY OF
THE RESALE RESTRICTIONS SET FORTH IN CLAUSE (A) ABOVE. NO


 


43














 


REPRESENTATION CAN BE MADE
AS TO THE AVAILABILITY OF THE EXEMPTION PROVIDED BY RULE 144 FOR RESALE OF THE
SECURITY EVIDENCED HEREBY.”


 


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


 


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


 


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


 


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


 


(i)            General Provisions Relating to Transfers and Exchanges.


 


(i)            To permit registrations of transfers and exchanges, the
Company shall execute and the Trustee shall authenticate Global Notes and
Definitive Notes (in each case, 


 


44

















 


accompanied by a notation of the Note Guarantees
duly endorsed by the Guarantors) upon the Company’s order or at the Registrar’s
request.


 


(ii)           No service charge shall be made to a holder of a
beneficial interest in a Global Note or to a Holder of a Definitive Note for
any registration of transfer or exchange, but the Company may require payment
of a sum sufficient to cover any transfer tax or similar governmental charge
payable in connection therewith (other than any such transfer taxes or similar
governmental charge payable upon exchange or transfer pursuant to Sections
2.10, 3.06, 3.09, 4.06, 4.07 and 9.05 hereof).


 


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


 


(iv)          All Global Notes and Definitive Notes (in each case,
accompanied by a notation of the Note Guarantees duly endorsed by the
Guarantors) issued upon any registration of transfer or exchange of Global
Notes or Definitive Notes shall be the valid obligations of the Company and the
Guarantors, evidencing the same debt, and entitled to the same benefits under
this Indenture, as the Global Notes or Definitive Notes surrendered upon such
registration of transfer or exchange.


 


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


 


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


 


(vii)         The Trustee shall authenticate Global Notes and Definitive
Notes (in each case, accompanied by a notation of the Note Guarantees duly
endorsed by the Guarantors) in accordance with the provisions of Section 2.02
hereof.


 


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


 


(ix)           Each Holder of a Note agrees to indemnify the Company and
the Trustee against any liability that may result from the transfer, exchange
or assignment of such Holder’s 


 


45

















 


Note in violation of any provision of this Indenture
and/or applicable United States federal or state securities laws.


 


(x)            The Trustee shall have no obligation or duty to monitor,
determine or inquire as to compliance with any restrictions on transfer imposed
under this Indenture or under applicable law with respect to any transfer of
any interest in any Note (including any transfers between or among Depositary participants
or beneficial owners of interests in any Global Note) other than to require
delivery of such certificates and other documentation or evidence as are
expressly required by, and to do so if and when expressly required by the terms
of, this Indenture, and to examine the same to determine substantial compliance
as to form with the express requirements hereof.


 


SECTION 2.07.               Replacement Notes.


 


If any mutilated Note is surrendered to the Trustee,
or the Company and the Trustee receive evidence to their 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 (accompanied by a notation of
the Note Guarantees duly endorsed by the Guarantors) if the Trustee’s
requirements are met.  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 Guarantors, 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 the Guarantors
and shall be entitled to all of the benefits of this Indenture equally and
proportionately with all other Notes duly issued hereunder.


 


SECTION 2.08.               Outstanding Notes.


 


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


 


If
a Note is replaced pursuant to Section 2.07 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 4.01
hereof, it ceases to be outstanding and interest on it ceases to accrue.


 


If
the Paying Agent (other than the Company, a Subsidiary or an Affiliate of any
thereof) holds, on a redemption date or maturity date, money sufficient to pay
Notes payable on 


 


46

















 


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 2.09.               Treasury Notes.


 


In
determining whether the Holders of the required principal amount of Notes have
concurred in any direction, waiver or consent, Notes owned by the Company, by any
Guarantor or by any Person directly or indirectly controlling or controlled by
or under direct or indirect common control with the Company or any Guarantor,
shall be considered as though not outstanding, except that for the purposes of
determining whether the Trustee shall be protected in relying on any such
direction, waiver or consent, only Notes that a Responsible Officer of the
Trustee actually knows are so owned shall be so disregarded.


 


SECTION 2.10.               Temporary Notes.


 


Until
Definitive Notes are ready for delivery, the Company may prepare and the
Trustee shall authenticate temporary Notes (accompanied by a notation of the
Note Guarantees duly endorsed by the Guarantors) upon a written order of the
Company signed by two Officers of the Company. 
Temporary Notes shall be substantially in the form of definitive 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 Definitive Notes (accompanied by a
notation of the Note Guarantees duly endorsed by the Guarantors) in exchange
for temporary Notes.


 


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


 


SECTION 2.11.               Cancellation.


 


The
Company at any time may deliver Notes to the Trustee for cancellation.  The Registrar and Paying Agent shall forward
to the Trustee any Notes surrendered to them for registration of transfer,
exchange or payment.  The Trustee and no
one else shall, in accordance with its customary procedures, cancel all Notes
surrendered for registration of transfer, exchange, payment, replacement or
cancellation and shall confirm in writing to the Company which Notes have been
cancelled by the Trustee.  The Company
may not issue new Notes to replace Notes that it has paid or that have been
delivered to the Trustee for cancellation.


 


SECTION 2.12.               Defaulted Interest.


 


If
either the Company or any Guarantor defaults in a payment of interest on the
Notes, it or they (to the extent of their obligations under the Note
Guarantees) shall pay the defaulted interest in any lawful manner plus, to the
extent lawful, interest payable on the defaulted interest, to the Persons who
are Holders on a subsequent special record date, in each case at the rate
provided in the Notes and in Section 4.01 hereof.  The Company shall notify the Trustee in
writing of the amount of defaulted interest proposed to be paid on each Note
and the date of the proposed payment. 
The Company shall fix or cause to be fixed each such special record date
and payment date, provided that no such special
record date shall be less than 10 days prior to the 


 


47

















 


related
payment date for such defaulted interest. 
At least 15 days before the special record date, the Company (or, upon
the written request of the Company, the Trustee in the name and at the expense
of the Company) shall mail or cause to be mailed to Holders a notice that
states the special record date, the related payment date and the amount of such
interest to be paid.


 


SECTION 2.13.               CUSIP Numbers.


 


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


 


SECTION 2.14.               [Reserved].


 


SECTION 2.15.               Issuance of Additional Notes.


 


The
Company shall be entitled, without the consent of the Holders, to issue
Additional Notes under this Indenture in an unlimited principal amount which
shall have substantially identical terms as the Notes, other than with respect
to the date of issuance, issue price, amount of interest payable on the first
payment date applicable thereto or upon a registration default as provided
under a registration rights agreement related thereto and, terms of optional
redemption, if any; provided that
such issuance is not prohibited by Section 4.09 or 4.10.  The Notes and any Additional Notes shall be
treated as a single class for all purposes under this Indenture.


 


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


 


(1)           the aggregate
principal amount of such Additional Notes to be authenticated and delivered
pursuant to this Indenture;


 


(2)           the issue price and
the issue date of such Additional Notes and the amount of interest payable on
the first payment date applicable thereto; and


 


(3)           whether such
Additional Notes shall be transfer restricted securities or shall be registered
securities.


 


48

















 


ARTICLE 3


 


REDEMPTION AND PREPAYMENT


 


SECTION 3.01.               Notices to Trustee.


 


If
the Company elects to redeem Notes pursuant to the optional redemption
provisions of Section 3.07 hereof, it shall furnish to the Trustee, at
least 35 (or such shorter period as is acceptable to the Trustee) days but not
more than 75 days before a redemption date, an Officers’ Certificate setting
forth (i) the clause of this Indenture pursuant to which the redemption
shall occur, (ii) the redemption date, (iii) the principal amount of
Notes to be redeemed and (iv) the redemption price.  Such notice shall be given at least 45 days
prior to the redemption date in the event the Company desires that the Trustee
give notice of redemption to the holders of the Notes as more particularly set
forth in Section 3.03.


 


SECTION 3.02.               Selection of Notes to Be
Redeemed.


 


If
less than all of the Notes are to be redeemed at any time, the Trustee will
select Notes for redemption on a pro rata basis, by lot or by such method as
the Trustee shall deem fair and appropriate (in a manner that complies with all
applicable legal requirements and, as applicable, the rules and procedures
of DTC).


 


No
Notes of $2,000 or less shall be redeemed in part.  Notices of redemption shall be mailed by
first class mail at least 30 but not more than 60 days before the redemption
date to each Holder of Notes to be redeemed at its registered address.  Notices of redemption may not be conditional.


 


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


 


SECTION 3.03.               Notice of Redemption.


 


Subject
to the provisions of Section 3.09 hereof, at least 30 days but not more
than 60 days before a redemption date, the Company shall mail or cause to be
mailed, by first class mail, a notice of redemption to each Holder whose Notes
are to be redeemed at its registered address.


 


The
notice shall identify the Notes to be redeemed (including CUSIP numbers) and
shall state:


 


(a)           the redemption date;


 


(b)           the redemption price;


 


49

















 


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


 


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


 


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


 


(f)            that, unless the Company defaults in making such
redemption payment, interest on Notes called for redemption ceases to accrue on
and after the redemption date;


 


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


 


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


 


At
the Company’s 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 (or such shorter period
as is acceptable to the Trustee), 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 and containing a copy of the text
of the notice to the Holders.  The notice
mailed in the manner provided herein shall be conclusively presumed to have
been duly given whether or not a Holder receives such notice. In any case,
failure to give such notice, or any defect in such notice, shall not affect the
validity of the proceeding for the redemption of any other Note.


 


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


 


If
the Company complies with the provisions of the preceding paragraph, on and
after the redemption date, interest shall cease to accrue on the Notes or the
portions of Notes called for redemption. 
If a Note is redeemed on or after an interest record date but on or
prior to 


 


50

















 


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


 


SECTION 3.06.               Notes Redeemed in Part.


 


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


 


SECTION 3.07.               Optional Redemption.


 


(a)           The Notes may be redeemed, in whole or in part, at any
time prior to April 1, 2014, at the option of the Company upon not less
than 30 nor more than 60 days’ prior notice mailed by first-class mail to each
Holder’s registered address, at a redemption price equal to 100% of the
principal amount of the Notes redeemed plus the Applicable Premium as of, and
accrued and unpaid interest, if any, to but not including, the applicable
redemption date (subject to the right of Holders of record on the relevant
record date to receive interest due on the relevant interest payment date).


 


(b)           Except as set forth in clauses (a) and (c) of
this Section 3.07, the Company shall not have the option to redeem the
Notes pursuant to this Section 3.07 prior to April 1, 2014.  Thereafter, the Company may redeem all or a
part of the Notes (which includes Additional Notes, if any) upon not less than
30 nor more than 60 days’ prior notice mailed to each Holder’s registered
address, at the redemption prices (expressed as percentages of principal
amount) set forth below plus accrued and unpaid interest thereon, if any, to,
but not including, the applicable redemption date (subject to the right of
Holders of record on the relevant regular record date to receive interest due
on an interest payment date), if redeemed during the twelve-month period
beginning on April 1 of the years indicated below:


 


	
  YEAR

  	
   

  	
  PERCENTAGE

  	
   

  
	
  2014

  	
   

  	
  105.813

  	
  %

  
	
  2015

  	
   

  	
  102.906

  	
  %

  
	
  2016 and thereafter

  	
   

  	
  100.000

  	
  %

  



 


(c)           Notwithstanding the provisions of clauses (a) and (b) of
this Section 3.07, at any time prior to April 1, 2013, the Company
may at its option on any one or more occasions redeem the Notes (including
Additional Notes, if any) in an aggregate principal amount not to exceed 35% of
the aggregate principal amount of the Notes (including Additional Notes, if
any) at a redemption price of 111.625% of the principal amount thereof, plus
accrued and unpaid interest thereon, if any, to, but not including, the
applicable redemption date (subject to the right of 


 


51

















 


Holders of record on the relevant record date to
receive interest due on the relevant interest payment date), with the net cash
proceeds of one or more Equity Offerings; provided
that:


 


(i)            at least 65% of such aggregate principal amount of the
Notes originally issued remains outstanding immediately after the occurrence of
such redemption (other than Notes held directly or indirectly by the Parent
Company, the Company and its Subsidiaries); and


 


(ii)           each such redemption must occur within 90 days of the date
of the closing of any such Equity Offering.


 


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


 


SECTION 3.08.               Mandatory Redemption.


 


Except
as set forth under Sections 4.06 and 4.07 hereof, the Company shall not be
required to make mandatory redemption or sinking fund payments with respect to
the Notes.


 


SECTION 3.09.               Offer to Purchase by
Application of Net Proceeds.


 


In
the event that, pursuant to Section 4.07 hereof, the Company shall be
required to commence an offer to all Holders to purchase Notes (an “Offer”), it
shall follow the procedures specified below.


 


The
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”).  Promptly after the termination of the Offer
Period (the “Purchase Date”), the Company shall purchase the principal amount
of Notes required to be purchased pursuant to Section 4.07 hereof (the “Offer
Amount”) or, if less than the Offer Amount has been tendered, all Notes
tendered in response to the 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 pursuant to the Offer.


 


Upon
the commencement of an 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
Offer.  The Offer shall be made to all
Holders.  The notice, which shall govern
the terms of the Offer, shall state:


 


(a)           that the Offer is being made pursuant to this Section 3.09
and Section 4.07 hereof and the length of time the Offer shall remain
open;


 


52

















 


(b)           the Offer Amount, the purchase price and the Purchase Date
and, if the Company or any Restricted Subsidiary is required to and does make
an offer to holders of Permitted Additional Pari Passu Obligations or Other
Debt as contemplated by clause (x) or clause (y) of the third
paragraph of Section 4.07(c)  the notice shall state that fact, that
the Offer Amount will be reduced by the amount of Other Debt or Permitted
Additional Pari Passu Obligations, as applicable, required to be purchased
pursuant to such other offer, and that the amount of such reduction will not be
known until the expiration of such other offer, which shall not be later than
the expiration of the Offer Period;


 


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


 


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


 


(e)           that Holders electing to have a Note purchased pursuant to
an Offer may only elect to have all of such Note purchased and may not elect to
have only a portion of such Note purchased;


 


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


 


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


 


(h)           that, if the aggregate principal amount of Notes
surrendered by Holders exceeds the Offer Amount, the Company shall select the
Notes to be purchased on a pro rata basis (with such adjustments as may be
deemed appropriate by the Company so that only Notes in denominations of
$2,000, or $1,000 integral multiples thereof, shall be purchased); and


 


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


 


On
or before the Purchase Date, the Company shall, to the extent lawful, accept
for payment, on a pro rata basis to the extent necessary, the Offer Amount of
Notes or portions thereof tendered pursuant to the Offer, or if less than the
Offer Amount has been tendered, all


 


53






 










 


Notes
tendered, and shall deliver to the Trustee an Officers’ Certificate stating
that such Notes or portions thereof were accepted for payment by the Company in
accordance with the terms of this Section 3.09.  The Company, the Depositary or the Paying Agent,
as the case may be, shall promptly mail or deliver to each tendering Holder an
amount equal to the purchase price of the Notes tendered by such Holder and
accepted by the Company for purchase, and the Company shall promptly issue a
new Note (in each case, accompanied by a notation of the Note Guarantees duly
endorsed by the Guarantors), and the Trustee, upon written request from the
Company shall authenticate and mail or deliver such new Note to such Holder, in
a principal amount equal to any unpurchased portion of the Note
surrendered.  Any Note not so accepted
shall be promptly mailed or delivered by the Company to the Holder
thereof.  The Company shall publicly
announce the results of the Offer on the Purchase Date.


 


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


 


SECTION 3.10.               Other Acquisitions of Notes.


 


Notwithstanding
any provision to the contrary contained herein, the Company may acquire Notes
by means other than a redemption, whether pursuant to an issuer tender offer,
open market purchase or otherwise, in accordance with applicable securities
laws, so long as such acquisition does not otherwise violate the terms of this
Indenture.


 


ARTICLE 4


 


COVENANTS


 


SECTION 4.01.               Payment of Notes.


 


The
Company shall pay or cause to be paid the principal of, premium, if any, and
interest on the Notes on the dates and in the manner provided in the
Notes.  Principal, premium, if any, and
interest shall be considered paid on the date due if the Paying Agent, if other
than the Company or any Guarantor thereof, holds as of 10:00 a.m. Mountain
Time on the due date money deposited by the Company in immediately available
funds and designated for and sufficient to pay all principal, premium, if any,
and interest then due.  The Company shall
pay all Additional Interest, if any, in the same 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 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 (without regard to any applicable grace period) at the
same rate to the extent lawful.


 


SECTION 4.02.               Maintenance of Office or
Agency.


 


The
Company shall maintain in the Borough of Manhattan, the City of New York (or
for so long as U.S. Bank National Association, or a successor in interest
thereto, is the Trustee, 


 


54

















 


at
the Corporate Trust Office of the Trustee), 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 or the
Guarantors 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 (or for so long as U.S. Bank National Association, or a
successor in interest thereto, is the Trustee, at the Corporate Trust Office of
the Trustee) for such purposes.  The
Company shall give prompt written notice to the Trustee of any such designation
or rescission and of any change in location of any such other office or agency.


 


The
Company hereby designates the office of U.S. Bank National Association, Corporate
Trust Services, 950 17th Street, Denver, CO 80202, as one such office or agency
of the Company in accordance with Section 2.03.


 


SECTION 4.03.               Compliance Certificate.


 


(a)           The Company shall deliver to the Trustee, within 120 days
after the end of each fiscal year, an Officers’ Certificate stating that in the
course of the performance by the signers of their duties as Officers of the
Company they would normally have knowledge of any Default, and further stating,
as to each such Officer signing such Officers’ Certificate, that, to his or her
knowledge, no Default or Event of Default has occurred during such period (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).


 


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


 


SECTION 4.04.               Taxes.


 


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


 


55

















 


SECTION 4.05.               Stay, Extension and Usury Laws.


 


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


 


SECTION 4.06.               Change of Control.


 


(a)           If a Change of Control occurs, each Holder of Notes will
have the right to require the Company to repurchase all or any part (equal to
$2,000 or a $1,000 integral multiple thereof
(provided that no Note will be purchased in part if
such Note would have a remaining principal amount of less than $2,000)) of that
Holder’s Notes pursuant to the offer described below (the “Change of Control
Offer”).  In the Change of Control Offer,
the Company will offer to pay an amount in cash (the “Change of Control Payment”)
equal to 101% of the aggregate principal amount of the Notes repurchased plus
accrued and unpaid interest thereon, if any, to, but not including, the
applicable date of purchase.  Within 30
days following any Change of Control, the Company will mail a notice to each
Holder describing the transaction or transactions that constitute the Change of
Control and offering to repurchase such Holder’s Notes on the date specified in
such notice (the “Change of Control Payment Date”), pursuant to the procedures
required by this Indenture and described in such notice.  The Company will comply with the requirements
of Rule 14e-1 under the Exchange Act and any other securities laws and
regulations thereunder to the extent such laws and regulations are applicable
in connection with the repurchase of the Notes as a result of a Change of
Control.  To the extent the provisions of
any securities laws are inconsistent with the terms of this Indenture, the
Company will not be deemed to have breached this covenant by complying with
such laws.


 


(b)           On the Change of Control Payment Date, the Company will,
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.


 


56

















 


(c)           The Change of Control Offer shall remain open for at least
20 Business Days or for such longer period as is required by law.


 


(d)           The Paying Agent will promptly mail to each Holder of
Notes so tendered the Change of Control Payment for such Notes, and the Trustee
will promptly authenticate and mail as directed in writing by the Company (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 will be
in a principal amount that is a multiple of $1,000 and at least $2,000.


 


(e)           The provisions described in this Section 4.06 that
require the Company to make a Change of Control Offer following a Change of
Control will be applicable regardless of whether or not any other provisions of
this Indenture are applicable.


 


(f)            The Company will not be required to make a Change of
Control Offer upon a Change of Control if (i) a third party makes the
Change of Control Offer in the manner, at the times and otherwise in compliance
with the requirements set forth in this Indenture applicable to a Change of
Control Offer made by the Company and purchases all Notes validly tendered and
not withdrawn under such Change of Control Offer, or (ii) if at any time
prior to 30 days after a Change of Control, a notice of redemption has been
given pursuant to Section 3.07 hereof. 
In addition, a Change of Control Offer may be made in advance of a
Change of Control, conditional upon such Change of Control, if a definitive
agreement is in place for the Change of Control at the time of the making of
the Change of Control Offer, and such Change of Control Offer is otherwise made
in compliance with the provisions of this covenant.


 


SECTION 4.07.               Asset Sales.


 


The
Company shall not, and shall not permit any of its Restricted Subsidiaries to,
consummate an Asset Sale unless:


 


(a)           the Company (or the Restricted Subsidiary, as the case may
be) receives consideration at the time of such Asset Sale at least equal to the
fair market value (as determined in good faith by the Company) of the assets or
Equity Interests issued or sold or otherwise disposed of;


 


(b)           at least 75% of the Net Proceeds received by the Company
or such Restricted Subsidiary is in the form of cash or Cash Equivalents.  For purposes of this provision, each of the
following shall be deemed to be cash:


 


(i)            any liabilities (as shown on the Company’s or such
Restricted Subsidiary’s most recent balance sheet), of the Company or any
Restricted Subsidiary (other than contingent liabilities and liabilities that
are by their terms subordinated to the Notes or any Note Guarantee) that are
assumed by the transferee of any such assets pursuant to a customary novation,
assignment and assumption or similar agreement that releases the Company or
such Restricted Subsidiary from further liability;


 


57

















 


(ii)           any securities, notes or other obligations received by the
Company or any such Restricted Subsidiary from such transferee that are
converted by the Company or such Restricted Subsidiary into cash (to the extent
of the cash received in that conversion) within 180 days following the closing
of such Asset Sale; and


 


(iii)          any combination of the foregoing.


 


(c)           If such Asset Sale involves the disposition of Collateral,
the Company or such Subsidiary has complied with the provisions of this
Indenture and the Security Documents.


 


Within 365 days after the receipt of any Net Proceeds
from an Asset Sale, the Company or a Restricted Subsidiary may apply such Net
Proceeds:


 


(i)            to be reinvested in the business of the Company or a
Restricted Subsidiary, which shall include the purchase of any Replacement
Assets, and to the extent that the assets that were the subject of such Asset
Sale constituted Collateral, such Replacement Assets shall be required to
constitute Collateral;


 


(ii)           to repay First Lien Obligations; or


 


(iii)          any combination of the foregoing.


 


The amount of any such Net Proceeds, if any, not
applied during such 365-day period as set forth in the immediately preceding
paragraph shall constitute “Excess Proceeds.”


 


If,
as of the first day of any calendar month, the aggregate amount of Excess
Proceeds totals at least $10.0 million, then the Company shall, not later than
the 15th day of such month, make an offer to purchase all or a portion of the
Notes, as applicable, at 100% of their principal amount, plus accrued and
unpaid interest, if any, and if applicable, (x) in the case of Net
Proceeds from Collateral, to make an offer to the holders of other Permitted
Additional Pari Passu Obligations and (y) in the case of any other Net
Proceeds, to make an offer to the holders of other Indebtedness of the Company
that ranks pari passu with the
Notes (the “Other Debt”), in either case (x) and (y) that by its
terms requires the Company to make an offer to purchase such Permitted
Additional Pari Passu Obligations or Other Debt, as applicable, upon
consummation of an Asset Sale, on a pro rata basis
and in an aggregate principal amount of Notes and, as applicable, Permitted
Additional Pari Passu Obligations or Other Debt, equal to the Excess Proceeds
on such date.  To the extent that any
Excess Proceeds remain after consummation of such offer to purchase pursuant to
this Section 4.07, the Company may use those Excess Proceeds for any
purpose not otherwise prohibited by this Indenture and Section 3.09, and
the amount of Excess Proceeds shall be reset to zero.


 


The
Company will comply with the requirements of Rule 14e-1 under the Exchange
Act and any other applicable securities laws and regulations thereunder to the
extent those laws and regulations are applicable in connection with each
repurchase of Notes pursuant to the preceding paragraph.  To the extent that the provisions of any
securities laws or regulations conflict with the Asset Sale provisions of this
Indenture, the Company will comply with the 


 


58

















 


applicable
securities laws and regulations and will not be deemed to have breached its
obligations under the Asset Sale provisions of this Indenture by virtue of such
compliance.


 


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


 


SECTION 4.08.               Restricted Payments.


 


The
Company shall not, and shall not permit any of its Restricted Subsidiaries to,
directly or indirectly:


 


(a)           declare or pay any dividend or make any other payment or
distribution on account of the Company’s or any of its Restricted Subsidiaries’
Equity Interests (including, without limitation, any payment in connection with
any merger or consolidation involving the Company or any of its Restricted
Subsidiaries) or to the direct or indirect holders of the Company’s or any of
its Restricted Subsidiaries’ Equity Interests in their capacity as such (other
than dividends or distributions payable in Equity Interests (other than Disqualified
Stock) of the Company or to the Company or a Restricted Subsidiary of the
Company);


 


(b)           purchase, redeem or otherwise acquire or retire for value
(including, without limitation, in connection with any merger or consolidation
involving the Company) any Equity Interests of the Company or any direct or
indirect parent of the Company or any Restricted Subsidiary of the Company
(other than any such Equity Interests owned by the Company or any Restricted
Subsidiary of the Company);


 


(c)           make any payment on or with respect to, or purchase,
redeem, defease or otherwise acquire or retire for value, any Indebtedness that
is subordinated to the Notes or the Note Guarantees, except a payment of
interest or principal at the Stated Maturity thereof; 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”), unless, at the time
of and after giving effect to such Restricted Payment:


 


(i)            no Default or Event of Default shall have occurred and be
continuing or would occur as a consequence thereof;


 


(ii)           the Company would, at the time of such Restricted Payment
and after giving pro forma effect
thereto as if such Restricted Payment had been made at the beginning of the
most recently ended four-quarter period for which internal financial statements
are available, have been permitted to incur at least $1.00 of additional
Indebtedness pursuant to the Fixed Charge Coverage Ratio test set forth in Section 4.09(a);
and


 


59

















 


(iii)          such Restricted Payment, together with the aggregate amount
of all other Restricted Payments made by the Company and its Restricted
Subsidiaries after the Issue Date (excluding Restricted Payments permitted by
clauses (iii), (v), (vii), (viii) and (xi) of Section 4.08(e)),
is less than the sum, without duplication, of


 


(A)          50% of the Consolidated Net Income (or, in each case such
Consolidated Net Income is a deficit, minus 100% of such deficit) of the
Company since the first day of the fiscal quarter in which the Issue Date
occurs, plus


 


(B)           the aggregate net cash proceeds received by the Company on
and after the first day of the fiscal quarter in which the Issue Date occurs
from the sale of Equity Interests or any Indebtedness that is convertible into
or exchangeable for Capital Stock and has been so converted or exchanged, plus


 


(C)           the aggregate cash and the fair market value, as
determined in good faith by the Board of Directors of the Company, of property
and marketable securities received by the Company as capital contributions on
and after the first day of the fiscal quarter in which the Issue Date occurs,
plus


 


(D)          the amount by which Indebtedness of the Company is reduced
on the Company’s balance sheet upon the conversion or exchange subsequent to
the Issue Date of any Indebtedness of the Company for Capital Stock of the
Company (less the amount of any cash, or the fair value of any other property,
distributed by the Company upon such conversion or exchange), plus


 


(E)           in the event of a sale or other disposition (other than of
the Company or a Restricted Subsidiary) of a Restricted Investment made by the
Company or its Restricted Subsidiaries or a repurchase or redemption of a
Restricted Investment from the Company or its Restricted Subsidiaries or
repayment of a loan or advance which constitutes a Restricted Investment by the
Company or its Restricted Subsidiaries, an amount equal to the lesser of (x) 100%
of the aggregate amount of cash and the fair market value, as determined in
good faith by the Board of Directors of the Company, of property and marketable
securities, in each case, received on and after the first day of the fiscal
quarter in which the Issue Date occurs and (y) the amount of such
Restricted Investment that was treated as a Restricted Payment, in either case,
less the cost of the disposition of such Investment and net of taxes, plus


 


(F)           100% of the aggregate amount of cash and the fair market
value, as determined in good faith by the Board of Directors of the 


 


60

















 


Company, of property and marketable securities, in
each case, received on and after the first day of the fiscal quarter in which
the Issue Date occurs by means of the sale (other than to the Company or a
Restricted Subsidiary) of the Capital Stock of an Unrestricted Subsidiary or a
distribution from an Unrestricted Subsidiary (other than, in each case, to the
extent the Investment in such Unrestricted Subsidiary constituted a Permitted
Investment) or a dividend from an Unrestricted Subsidiary.


 


(e)           The preceding provisions will not prohibit:


 


(i)            the payment of any dividend on, or other distribution in
respect of, any Equity Interest within 60 days after the date of declaration
thereof, if at said date of declaration such payment would have complied with
the provisions of this Indenture;


 


(ii)           the repurchase, redemption, defeasance, retirement or
other acquisition of any pari passu
or subordinated Indebtedness of the Company or any Guarantor or of any Equity
Interests of the Company or any Restricted Subsidiary in exchange for, or out
of the net cash proceeds of the substantially concurrent sale (other than to a
Subsidiary of the Company) of, Equity Interests of the Company or the Parent
Company;


 


(iii)          the redemption, repurchase, defeasance, retirement or other
acquisition of pari passu or
subordinated Indebtedness of the Company or any Guarantor with the net cash
proceeds from an incurrence of Permitted Refinancing Indebtedness;


 


(iv)          the payment of any dividend by a Restricted Subsidiary of
the Company to the holders of its common Equity Interests on a pro rata basis;


 


(v)           the repurchase, redemption or other acquisition or
retirement for value of any Equity Interests of the Company, the Parent Company
or any Restricted Subsidiary of the Company held by any employee, officer,
director or consultant, or former employee, officer, director or consultant, of
or to the Company, the Parent Company or any Restricted Subsidiary of the
Company upon the death, disability, retirement or termination of employment or
service with or to the Company, the Parent Company or any Restricted Subsidiary
of the Company or pursuant to any stockholders agreement, consulting agreement,
employment agreement, management equity subscription agreement, restricted
stock purchase agreement, stock option agreement or any similar agreement or
plan in effect as of the Issue Date or approved by the Board of Directors or
the compensation committee of the Board of Directors of the Company, the Parent
Company or any Restricted Subsidiary of the Company; provided that the aggregate price paid for all such
repurchased, redeemed, acquired or retired Equity Interests shall not exceed
$5.0 million in any calendar year;


 


61

















 


(vi)          the making of advances and loans to Franchisees in the
ordinary course of business and consistent with past practices, provided that (x) the aggregate outstanding amount of
any such loans and advances to a single Franchisee does not exceed $1,250,000
at any time and (y) the aggregate amount of all outstanding loans and
advances made under this clause (vi) to all Franchisees does not exceed
$6,000,000 at any time;


 


(vii)         the repurchase, redemption or other acquisition or
retirement for value of any Equity Interests of the Company, the Parent Company
or any Restricted Subsidiary of the Company held by any current or former
Franchisee or by current or former employees of any such Franchisee whose
employment or Franchisee relationship has been terminated, provided
that such Restricted Payments shall not exceed $2,000,000 in any calendar year
or $5,000,000 in the aggregate since the Issue Date;


 


(viii)        the payment or retirement of any
Indebtedness of the Company, the Parent Company or any Restricted Subsidiary of
the type described in Section 4.09(b)(xi);


 


(ix)           payments to Astrum Financial, not to exceed $500,000 in
any calendar year;


 


(x)            Restricted Payments not to exceed $12.5 million in the
aggregate since the Issue Date; and


 


(xi)           Permitted Payments to the Parent Company;


 


provided,
however, that at the
time of, and after giving effect to, any Restricted Payment permitted under
clauses (v), (vi), (vii), (ix) or (x) above, no Default or Event of Default
shall have occurred or would be continuing or would occur as a result thereof.


 


(f)            The amount of all Restricted Payments (other than cash)
shall be the fair market value on the date of the Restricted Payment of the
asset(s) or securities proposed to be transferred or issued by the Company
or such Restricted Subsidiary, as the case may be, pursuant to the Restricted
Payment.  The fair market value of any
assets or securities that are required to be valued by this covenant shall be
determined conclusively by an officer of the Company, acting in good faith, if
such officer’s determined fair market value is less than or equal to
$2,500,000.  If the fair market value
determined in good faith by such officer of the Company exceeds $2,500,000, the
fair market value shall be determined conclusively by the Board of Directors of
the Company acting in good faith whose resolution with respect thereto shall be
delivered to the Trustee.  If the fair
market value is estimated in good faith by the Board of Directors of the
Company to exceed $15,000,000, the determination shall be based upon an opinion
or appraisal issued by an accounting, appraisal or investment banking firm of
national standing or having substantial experience in the Company’s industry,
which shall be delivered to the Trustee.


 


62

















 


SECTION 4.09.               Incurrence of Indebtedness.


 


(a)           The Company shall not, and shall not permit any of its
Restricted Subsidiaries to, directly or indirectly, create, incur, issue,
assume, guarantee or otherwise become directly or indirectly liable,
contingently or otherwise, with respect to (collectively, “incur”) any
Indebtedness (including Acquired Debt); provided that
the Company and any Restricted Subsidiary may incur Indebtedness (including
Acquired Debt), if the Fixed Charge Coverage Ratio for the Company’s most
recently ended four full fiscal quarters for which internal financial
statements are available immediately preceding the date on which such
additional Indebtedness is incurred would have been at least 5.0 to 1.0,
determined on a pro forma basis (including a pro forma application of the net
proceeds therefrom), as if the additional Indebtedness had been incurred at the
beginning of such four-quarter period; provided, further,
that the amount of Indebtedness (including Acquired Debt) that may be
incurred pursuant to the foregoing by Restricted Subsidiaries that are not
Guarantors of the Notes shall not exceed $10.0 million at any one time
outstanding.


 


(b)           Notwithstanding the prohibitions of Section 4.09(a),
the Company may incur any of the following items of Indebtedness (collectively,
“Permitted Debt”):


 


(i)            the incurrence by the Company and any Restricted
Subsidiary of Indebtedness under Credit Facilities (including amounts
outstanding on the Issue Date); provided
that the aggregate principal amount of all Indebtedness under such Credit
Facilities (including all Permitted Refinancing Indebtedness incurred to
refund, refinance or replace any Indebtedness incurred pursuant to this clause
(i)) permitted by this clause (i) does not exceed $215.0 million less any
permanent reductions of Indebtedness thereunder actually made with the Net
Proceeds of Asset Sales in accordance with Section 4.07(c)(ii);


 


(ii)           the incurrence by the Company and its Subsidiaries of
Existing Indebtedness (excluding amounts outstanding under the Credit Agreement
at the Issue Date);


 


(iii)          the incurrence by the Company and the Guarantors of
Indebtedness represented by the Notes and the Note Guarantees (other than
Additional Notes);


 


(iv)          the incurrence by the Company or any of its Restricted
Subsidiaries of Indebtedness represented by Capital Lease Obligations, mortgage
financings or purchase money obligations, in each case, incurred for the
purpose of financing all or any part of the purchase price or cost of
construction or improvement of property, plant or equipment used in the
business of the Company or such Restricted Subsidiary (whether through the
direct purchase of assets or the purchase of Equity Interests of any Person
owning such assets), in an aggregate principal amount (including all Permitted
Refinancing Indebtedness incurred to refund, refinance or replace any
Indebtedness incurred pursuant to this clause (iv)) not to exceed $12.5 million
at any time outstanding;


 


(v)           the incurrence by the Company or any of its Restricted
Subsidiaries of Permitted Refinancing Indebtedness in exchange for, or the net
proceeds of which are


 


63






 










 


used to refund, refinance or
replace, Indebtedness (other than intercompany Indebtedness) that was
permitted by this Indenture to be incurred under Section 4.09(a) or
clause (i), (ii), (iii), (iv), (v), (viii), (ix) or (xiii) of this Section 4.09(b);


 


(vi)          the incurrence by the Company or any of its Restricted
Subsidiaries of intercompany Indebtedness between or among the Company and any
of its Restricted Subsidiaries or between or among such Restricted
Subsidiaries; provided that:


 


(A)          if the Company or any Guarantor is the obligor on such
Indebtedness and such Indebtedness is owed to or held by a Restricted
Subsidiary that is not a Guarantor, such Indebtedness must be expressly
subordinated to the prior payment in full in cash of all Obligations with respect
to the Notes, in the case of the Company, or the Note Guarantee of such
Guarantor, in the case of a Guarantor; 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 Restricted Subsidiary thereof and (2) any sale or
other transfer of any such Indebtedness to a Person that is not either the
Company or a Restricted Subsidiary thereof, shall be deemed, in each case, to
constitute an incurrence of such Indebtedness by the Company or such Restricted
Subsidiary, as the case may be, that was not permitted by this clause (vi);


 


(vii)         the incurrence by the Company or any of its Restricted
Subsidiaries of Hedging Obligations that are incurred for the purpose of hedging
interest rate risk with respect to any Indebtedness that is permitted by the
terms of this Indenture to be outstanding and not for speculative purposes;


 


(viii)        the Guarantee by the Company or any of
its Restricted Subsidiaries of Indebtedness of the Company or a Restricted
Subsidiary of the Company that was permitted to be incurred by another
provision of this Section 4.09;


 


(ix)           the incurrence by the Company or any of its Restricted
Subsidiaries of additional Indebtedness (other than indebtedness permitted by Section 4.09(a) or
clauses (i) through (xvi) of this Section 4.09(b)) in an
aggregate principal amount (or accrued value, as applicable) at any time
outstanding, including all Permitted Refinancing Indebtedness incurred to
refund, refinance or replace any such Indebtedness incurred pursuant to this
clause (ix), not to exceed $25 million;


 


(x)            the incurrence by the Company or any of its Restricted
Subsidiaries of Indebtedness in respect of judgment, appeal, surety, bonds
required in the course of licensure performance and other like bonds, bankers
acceptances and letters of credit provided by the Company and its Subsidiaries
in the ordinary course of business and payment obligations in connection with
self-insurance and similar obligations (including any similar Indebtedness
incurred to refinance, retire, renew, defease, refund or otherwise replace any
Indebtedness referred to in this clause (x));


 


64

















 


(xi)           Indebtedness incurred by the Company or any of its
Subsidiaries arising from agreements providing for indemnification, adjustment
of purchase price, earnout or similar obligations, or from guarantees of
letters of credit, surety bonds or performance bonds securing the performance
of the Company or any of its Subsidiaries, made, given or entered into in
connection with the acquisition or disposition by the Company or any of its
Subsidiaries of all or a portion of the Equity Interests, business or assets of
the Company or any Subsidiary of the Company;


 


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


 


(xiii)         Acquired Debt (including Acquired Debt
incurred by any Restricted Subsidiary prior to the time that such Restricted
Subsidiary was acquired by the Company), provided that
after giving effect to the incurrence of such Indebtedness pursuant to this Section 4.09(b)(xiii) and
the related acquisition transaction, either (a) the Company would have
been able to incur $1.00 of Indebtedness pursuant to the Fixed Charge Coverage
Ratio test set forth in Section 4.09(a) or (b) the Company’s
Fixed Charge Coverage Ratio would be greater than such ratio immediately prior
to such acquisition transaction;


 


(xiv)        any Guarantee by the Company or any Restricted Subsidiary of
Indebtedness or other obligations of the Company or any of its Restricted
Subsidiaries so long as the incurrence of such Indebtedness or obligation by
the Company or the Restricted Subsidiary incurring such Indebtedness or
obligation is permitted by this Indenture;


 


(xv)         Indebtedness of Restricted Subsidiaries that are not
Guarantors in an amount outstanding at any time not to exceed $10.0 million;
and


 


(xvi)        Indebtedness of Canadian Subsidiaries in an amount
outstanding at any time not to exceed $20.0 million.


 


For purposes of determining compliance with this Section 4.09,
the outstanding principal amount of any Indebtedness shall be counted only once
such that (without limitation) any obligation arising under any Guarantee or
with respect to letters of credit supporting such Indebtedness shall not
constitute a separate incurrence, or amount outstanding, of, or additional, Indebtedness
for any purposes hereunder, and in the event that an item of proposed
Indebtedness meets the criteria of more than one of the categories of Permitted
Debt described in Section 4.09 (b)(i) through (b)(xvi) above, or
is entitled to be incurred pursuant to Section 4.09(a), the Company will
be permitted to divide and classify (or later reclassify in whole or in part in
its sole discretion) such item of Indebtedness in any manner that complies with
this Section 4.09 and such Indebtedness will be treated as having been
incurred pursuant to such clause or clauses or Section 4.09(a), as the
case may be, as designated by the Company; provided
that any incurrences of Indebtedness under Credit Facilities must be first
applied to clause (i) above. 
Accrual of interest or dividends, the accretion of accreted value or
liquidation preference and the payment of interest or dividends in the form of
additional Indebtedness or Disqualified Stock will not be deemed to 


 


65

















 


be
an incurrence of Indebtedness or an issuance of Disqualified Stock for purposes
of this Section 4.09.


 


In addition, with respect to any non-U.S.
dollar-denominated Indebtedness, the principal amount of any such Indebtedness
will be calculated in an equivalent amount of U.S. dollars based on the
relevant currency exchange rate in effect on the date such Indebtedness was
incurred, in the case of term Indebtedness, or first committed, in the case of
revolving credit Indebtedness, provided that if such Indebtedness is
incurred to refinance other Indebtedness denominated in the same or a different
non-U.S. currency, and such refinancing would cause the applicable U.S. dollar-denominated
restriction to be exceeded if calculated at the relevant currency exchange rate
in effect on the date of such refinancing, such U.S. dollar-denominated
restriction will be deemed not to have been exceeded so long as the principal
amount of such refinancing Indebtedness does not exceed the principal amount of
such Indebtedness being refinanced.


 


SECTION 4.10.               Liens.


 


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


 


SECTION 4.11.               Dividend and Other Payment
Restrictions Affecting Subsidiaries.


 


(a)           The Company shall not permit any of its Restricted
Subsidiaries to, directly or indirectly, create or permit to exist or become
effective any encumbrance or restriction on the ability of any Restricted
Subsidiary to:


 


(i)            pay dividends or make any other distributions or pay
Indebtedness to the Company or any of the Company’s Restricted Subsidiaries, or
with respect to any other interest or participation in, or measured by, its
profits, or pay any indebtedness owed to the Company or any of the Company’s
Restricted Subsidiaries;


 


(ii)           make loans or advances to the Company or any Restricted
Subsidiary; or


 


(iii)          transfer any of its properties or assets to the Company or
any Restricted Subsidiary.


 


(b)           However, the preceding restrictions in Section 4.11(a) will
not apply to encumbrances or restrictions existing under or by reason of:


 


(i)            any agreement or instrument existing as of, or entered
into on, the Issue Date, including agreements governing Existing Indebtedness
and Credit Facilities and other contractual encumbrances or restrictions in
each case as in effect on the Issue Date and any amendments, modifications,
restatements, renewals, increases, supplements, refundings, replacements or
refinancings of those agreements, provided
that such amendments, modifications, restatements, renewals, increases,
supplements, refundings, 


 


66

















 


replacements or refinancings
are no more restrictive, taken as a whole, with respect to such encumbrances
and restrictions than those contained in those agreements on the Issue Date;


 


(ii)           this Indenture, the Security Documents, the Notes and the
Note Guarantees;


 


(iii)          any applicable law, rule, regulation or order;


 


(iv)          any agreement or instrument governing Indebtedness or Capital
Stock of a Person acquired by the Company or any Restricted Subsidiary as in
effect at the time of the Company’s acquisition of such Person or Restricted
Subsidiary (except to the extent such Indebtedness or Capital Stock was
incurred in connection with or in contemplation of such acquisition), which
encumbrance or restriction is not applicable to any Person, or the properties
or assets of any Person, other than the Person, or the property or assets of
the Person, so acquired, provided that,
in the case of Indebtedness, such Indebtedness was permitted by the terms of
this Indenture to be incurred, and any amendments, modifications, restatements,
renewals, increases, supplements, refundings, replacements or refinancings of
any such agreement or instrument, provided that
such amendments, modifications, restatements, renewals, increases, supplements,
refundings, replacements or refinancings are no more restrictive, taken as a
whole, with respect to such encumbrances and restrictions than those contained
in those agreements and instruments on the date of such acquisition;


 


(v)           purchase money obligations for property acquired in the
ordinary course of business;


 


(vi)          any agreement for the sale or other disposition of a
Restricted Subsidiary that restricts distributions, loans, advances or asset
transfers by that Restricted Subsidiary pending its sale or other disposition;


 


(vii)         Permitted Refinancing Indebtedness; provided, that the restrictions contained
in the agreements governing such Permitted Refinancing Indebtedness are not
materially more restrictive, taken as a whole, than those contained in the
agreements governing the Indebtedness being refinanced;


 


(viii)        any agreement or instrument relating to
any Indebtedness permitted to be incurred subsequent to the Issue Date pursuant
to the provisions of Section 4.09 hereof (i) if the encumbrances and
restrictions contained in any such agreement or instrument taken as a whole are
not materially less favorable to the Holders of the Notes than the encumbrances
and restrictions contained in this Indenture (as determined in good faith by
the Company), or (ii) if such encumbrance or restriction is not materially
more disadvantageous to the Holders of the Notes than is customary in
comparable financings (as determined in good faith by the Company) and either (x) the
Company determines in good faith that such encumbrance or restriction will not
materially affect the Company’s ability to make principal or interest payments
on the Notes or (y) such encumbrance or 


 


67

















 


restriction applies only if
a default occurs in respect of a payment or financial covenant relating to such
Indebtedness;


 


(ix)           Liens securing Indebtedness otherwise permitted to be
incurred under Section 4.10 hereof that limit the right of the debtor to
dispose of the assets subject to such Liens;


 


(x)            provisions with respect to the disposition or
distribution of assets or property in joint venture agreements, asset sale
agreements, stock sale agreements and other similar agreements entered into in
the ordinary course of business;


 


(xi)           in the case of clause (iii) of Section 4.11(a) hereof,
encumbrances or restrictions:


 


(A)          that restrict in a customary manner the subletting,
assignment or transfer of any property or asset that is a lease, license,
conveyance or contract or similar property or asset;


 


(B)           existing by virtue of any transfer of, agreement to
transfer, option or right with respect to, or Lien on, any property or assets
of the Company or any Restricted Subsidiary not otherwise prohibited by this
Indenture, or


 


(C)           arising or agreed to in the ordinary course of business,
not relating to any Indebtedness, and that do not, individually or in the
aggregate, detract from the value of property or assets of the Company or any
Restricted Subsidiary in any manner material to the Company or any Restricted
Subsidiary; and


 


(xii)          customary restrictions on such loans, advances or transfers
contained in agreements governing Permitted Investments properly made in accordance
with the provisions of this Indenture.


 


SECTION 4.12.               Transactions with Affiliates.


 


(a)           The Company shall not, and shall not permit any of its
Restricted Subsidiaries to, make any payment to, or sell, lease, transfer or
otherwise dispose of any of its properties or assets to, or purchase any
property or assets from, or enter into or make or amend any transaction,
contract, agreement, understanding, loan, advance or Guarantee with, or for the
benefit of, any Affiliate (each, an “Affiliate Transaction”), unless:


 


(i)            such Affiliate Transaction is on terms that are not
materially less favorable to the Company or the relevant Restricted Subsidiary
than those that might reasonably have been obtained in a comparable transaction
by the Company or such Restricted Subsidiary with an unrelated Person; and


 


(ii)           the Company delivers to the Trustee:


 


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(A)         with respect to any Affiliate Transaction or series of
related Affiliate Transactions involving aggregate consideration in excess of
$5.0 million, a resolution of the Board of Directors set forth in the Officers’
Certificate certifying that such Affiliate Transaction complies with this Section 4.12
and that such Affiliate Transaction has been approved by a majority of the
disinterested members of the Board of Directors, if any; and


 


(B)         with respect to any Affiliate Transaction or series of
related Affiliate Transactions involving aggregate consideration in excess of
$15.0 million, an opinion as to the fairness to the Company or such Restricted
Subsidiary of such Affiliate Transaction issued by an accounting, appraisal or
investment banking firm of national standing or having substantial experience
in the Company’s industry.


 


(b)           The following items shall not be deemed to be Affiliate
Transactions and, therefore, will not be subject to the provisions of Section 4.12(a):


 


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


 


(ii)           indemnification agreements permitted by law entered into
by the Company or any of its Restricted Subsidiaries with any of its Affiliates
who are directors, employees or agents of the Company or any of its Restricted
Subsidiaries;


 


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


 


(iv)          payment of reasonable directors fees to Persons who are not
otherwise Affiliates of the Company;


 


(v)           Restricted Payments that are permitted by Section 4.08
hereof;


 


(vi)          payments or loans (or cancellation of loans) to employees
or consultants of the Company, the Parent Company or any Restricted Subsidiary
and employment agreements, stock option plans and other similar arrangements
with such employees or consultants which, in each case, are approved by a
majority of the disinterested directors of the Company, the Parent Company or
any Restricted Subsidiary, if any, in good faith;


 


(vii)         the payment of reasonable and customary compensation and
fees paid to, reimbursement of expenses of, and indemnities provided on behalf
of, officers, directors, managers, employees or consultants of the Company, the
Parent Company or any Restricted Subsidiary, in each case, in the ordinary
course of business, provided that
any annual compensation paid to any individual in excess of $5,000,000 is
approved by the Company’s or the Parent Company’s Board of Directors or
compensation committee of its Board of Directors;


 


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(viii)        transactions in which the Company or any
Restricted Subsidiary, as the case may be, delivers to the Trustee a letter
from an accounting, appraisal or investment banking firm of national standing
or having substantial experience in the Company’s industry stating that such
transaction is fair to the Company or such Restricted Subsidiary;


 


(ix)           any agreement, instrument or arrangement as in effect on
the Issue Date, or any amendment thereto or renewal or replacement thereof (so
long as any such amendment, renewal or replacement, taken as a whole is not
disadvantageous to the Holders in any material respect as compared to the
applicable agreement as in effect on the Issue Date as reasonably determined in
good faith by the Company);


 


(x)            the existence of, or the performance by the Company or
any of the Restricted Subsidiaries of its obligations under the terms of, any
shareholders agreement or its equivalent (including any registration rights
agreement or purchase agreement related thereto) to which it is a party as of
the Issue Date and any similar agreements which it may enter into thereafter; provided, that the existence of, or the performance by the Company or
any Restricted Subsidiary of obligations under any future amendment to any such
existing agreement or under any similar agreement entered into after the Issue
Date shall only be permitted by this clause (x) to the extent that the
terms of any such existing agreement together with all amendments thereto,
taken as a whole, or new agreement are not otherwise more disadvantageous to
the Holders in any material respect than the terms of the original agreement in
effect on the Issue Date as reasonably determined in good faith by the Company;


 


(xi)           so long as no Event of Default has occurred and is
continuing or would result therefrom, the payment of management, consulting,
monitoring and advisory fees and related expenses and termination fees pursuant
to the Sponsor Management Agreement not to exceed the amounts set forth in the
Sponsor Management Agreement as in effect on the Issue Date or any amendment
thereto (so long as any such amendment is not disadvantageous to the Holders in
the good faith judgment of the Board of Directors of the Parent Company when
taken as a whole as compared to the Sponsor Management Agreement as in effect
on the Issue Date);


 


(xii)          transactions pursuant to the Tax Sharing Agreement;


 


(xiii)         the issuance of Equity Interests of the
Company (other than Equity Interests that are, or are convertible into or
exercisable for Disqualified Stock);


 


(xiv)        any agreement between any Person and an Affiliate of such
Person existing at the time such Person is acquired by or merged into the
Company or a Restricted Subsidiary; provided
that such agreement was in effect prior to, and was not created in
contemplation of, such acquisition or merger; and


 


(xv)         Affiliate Transactions with Franchisees who are Affiliates
as long as the terms of any such Affiliate Transactions are not materially less
favorable to the Company 


 


70

















 


than the terms applicable to
similar transactions, agreements or arrangements with Franchisees who are not
Affiliates.


 


SECTION 4.13.               Additional Guarantees.


 


If
after the Issue Date the Company or any Restricted Subsidiary of the Company
acquires or creates another Restricted Subsidiary and such Restricted
Subsidiary is a Domestic Subsidiary, that newly acquired or created Restricted
Subsidiary must, unless prohibited by law from guaranteeing the Notes, become a
Guarantor and execute a supplemental indenture satisfactory to the Trustee and
deliver an Opinion of Counsel to the Trustee within 30 days of the date on
which it was acquired or created.


 


The
Obligations under the Notes, the Note Guarantees and this Indenture and any
Permitted Additional Pari Passu Obligations of any Person that is or becomes a
Guarantor after the Issue Date will be secured equally and ratably by a Second
Priority Lien on the Collateral granted to the Collateral Agent for the benefit
of the Holders of the Notes and the Holders of Permitted Additional Pari Passu
Obligations.  Such Guarantor shall enter
into a joinder agreement to the applicable Security Documents defining the
terms of the security interests that secure payment and performance when due of
the Notes and take all actions advisable in the opinion of the Company, as set
forth in an Officers’ Certificate accompanied by an Opinion of Counsel to the
Company, to cause the Second Priority Liens created by the Security Documents
to be duly perfected to the extent required by such agreements in accordance
with all applicable law, including the filing of financing statements in the
jurisdictions of incorporation or formation of the Company and the Guarantors.


 


SECTION 4.14.               Limitations on Issuances of
Guarantees of Indebtedness.


 


The
Company shall not permit any of its Restricted Subsidiaries that is not a
Guarantor of the Notes, directly or indirectly, to Guarantee or pledge any
assets to secure the payment of any other Indebtedness of the Company or the
Parent Company unless such Restricted Subsidiary simultaneously executes and
delivers a supplemental indenture providing for the Guarantee of the payment of
the Notes by such Restricted Subsidiary to the same extent as such Guarantee of
such other Indebtedness, which Guarantee shall be senior to or pari passu with such Restricted Subsidiary’s Guarantee of or
pledge to secure such other Indebtedness.


 


Notwithstanding
the preceding paragraph, any Note Guarantee of the Notes shall provide by its
terms that it shall be automatically and unconditionally released and
discharged under the circumstances described in Section 10.05 hereof.  The form of the Guarantee of the Notes is
attached as Exhibit D hereto.


 


SECTION 4.15.               Business Activities.


 


The
Company shall not, and shall not permit any Restricted Subsidiary to, engage in
any business other than Permitted Businesses and other activities that, taken
as a whole, are immaterial to the Company and its Restricted Subsidiaries.


 


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SECTION 4.16.               Designation of Restricted and
Unrestricted Subsidiaries.


 


The
Board of Directors of the Company may designate any Subsidiary to be an
Unrestricted Subsidiary if that designation would not cause a Default.  If a Subsidiary is designated as an Unrestricted
Subsidiary, all outstanding Investments owned by the Company and its
Subsidiaries in the Subsidiary so designated will be deemed to be an Investment
made as of the time of such designation and will reduce the amount available
for Restricted Payments under the Section 4.08(d) or Permitted
Investments, as applicable.  All such
outstanding Investments will be valued at their fair market value at the time
of such designation.  In addition, such
designation will only be permitted if such Restricted Payment would be
permitted at that time and if such Subsidiary otherwise meets the definition of
an “Unrestricted Subsidiary.”  The Board
of Directors of the Company may redesignate any Unrestricted Subsidiary to be a
Restricted Subsidiary if the redesignation would not cause a Default.


 


SECTION 4.17.               Payments for Consent.


 


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


 


SECTION 4.18.               Reports.


 


(a)           At all times prior to the effectiveness of a registration
statement filed as required by the Registration Rights Agreement, the Company
will furnish to the Trustee and, upon request, to beneficial owners of the
Notes, a copy of all of the following information and reports:


 


(i)            within 90 days of the end of each fiscal year, annual
audited financial statements for such fiscal year (along with customary
comparative results) and


 


(ii)           within 45 days of the end of each of the first three
fiscal quarters of every fiscal year, unaudited financial statements for the
interim period as of, and for the period ending on, the end of such fiscal
quarter (along with comparative results for the corresponding interim period in
the prior year),


 


in
each case, including a “Management’s Discussion and Analysis of Financial
Condition and Results of Operations” with respect to the periods presented and,
with respect to the annual information only, a report on the annual financial
statements by the Company’s certified independent accountants (all of the
information in this Section 4.18 to be prepared in accordance with GAAP
(as in effect at such time)).


 


(b)           Following the effectiveness of a registration statement,
whether or not required by the SEC, so long as any Notes are outstanding, the
Company shall furnish to the 


 


72

















 


Holders of Notes and the Trustee, within the time
periods specified in the SEC’s rules and regulations:


 


(i)            all quarterly and annual financial information that would
be required to be contained in a filing with the SEC on Forms 10-Q and 10-K, if
the Company were required to file such Forms, including a “Management’s
Discussion and Analysis of Financial Condition and Results of Operations” and,
with respect to the annual information only, a report on the annual financial
statements by the Company’s certified independent accountants; and


 


(ii)           all current reports that would be required to be filed
with the SEC on Form 8-K if the Company were required to file such
reports.


 


In
addition, whether or not required by the SEC, the Company shall file a copy of
all of the information and reports referred to in clauses (i) and (ii) above
with the SEC for public availability within the time periods specified in the
SEC’s rules and regulations (unless the SEC shall not accept such a
filing) and make such information available to securities analysts and prospective
investors upon request.  For purposes of
the immediately preceding paragraph, the Company will be deemed to have
furnished the Holders of the Notes with the information and reports referred to
in clauses (i) and (ii) above when the same shall have been filed
with the SEC and shall have been made available on the SEC’s EDGAR
website.  The Company also shall comply
with the other provisions of Trust Indenture Act § 314(a).


 


The
foregoing reporting obligation may be satisfied by information and reports prepared
and, if applicable, filed by the Parent Company on a consolidated basis under
the requirements of the Exchange 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).


 


SECTION 4.19.               Further Assurances.


 


Subject
to the limitations in the Security Documents, the Company will, and will cause
each of its existing and future Guarantors to, at their expense, duly execute
and deliver, or cause to be duly executed and delivered, such further
agreements, documents and instruments and do or cause to be done such further
acts as may be necessary and proper to:


 


(a)           effectuate the purposes of this Indenture and the Security
Documents; and


 


(b)           evidence, perfect, maintain and enforce the validity,
effectiveness and priority of any of the Second Priority Liens on the
collateral granted to the Collateral Agent.


 


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ARTICLE 5


 


SUCCESSORS


 


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


 


The
Company may not, directly or indirectly: 
(i) consolidate or merge with or into another Person (whether or
not the Company is the surviving corporation); or (ii) sell, assign,
transfer, convey or otherwise dispose of all or substantially all of the
properties or assets of the Company and its Restricted Subsidiaries taken as a
whole, in one or more related transactions, to another Person; unless:


 


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


 


(b)           the Person formed by or surviving any such consolidation
or merger (if other than the Company) or the Person to which such sale,
assignment, transfer, conveyance or other disposition shall have been made,
expressly assumes all the obligations of the Company under the Notes, this
Indenture and the Security Documents pursuant to agreements reasonably
satisfactory to the Trustee;


 


(c)           immediately after such transaction no Default or Event of
Default exists;


 


(d)           the Collateral owned by or transferred to the surviving
entity shall (i) continue to constitute Collateral under this Indenture
and the Security Documents, (ii) be subject to the Lien in favor of the
Collateral Agent for the benefit of the Trustee and the Holders of the Notes,
and (iii) not be subject to any Lien other than Permitted Liens;


 


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


 


(f)            the Company or the Person formed by or surviving any such
consolidation or merger (if other than the Company), or to which such sale,
assignment, transfer, conveyance or other disposition has been made, shall, on
the date of such transaction after giving pro forma effect thereto and any
related financing transactions as if the same had occurred at the beginning of
the applicable four-quarter period, be permitted to incur at least $1.00 of
additional Indebtedness pursuant to the Fixed Charge Coverage Ratio test set
forth in Section 4.09(a).


 


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In
addition, the Company may not, directly or indirectly, lease all or
substantially all of its properties or assets, in one or more related
transactions, to any other Person.  Section 5.01(f) shall
not apply to a merger, consolidation, sale, assignment, transfer, conveyance or
other disposition of assets between or among the Company and any of its
Restricted Subsidiaries.


 


SECTION 5.02.               Successor Person Substituted.


 


Upon
any consolidation or merger, or any sale, assignment, transfer, lease,
conveyance or other disposition of all or substantially all of the assets of
the Company in accordance with Section 5.01 hereof, the successor Person
formed by such consolidation or into or with which the Company is merged or to
which such sale, assignment, transfer, lease, conveyance or other disposition
is made shall succeed to, and be substituted for (so that from and after the
date of such consolidation, merger, sale, lease, conveyance or other
disposition, the provisions of this Indenture referring to the “Company” shall
refer instead to the successor Person and not to the Company, and the successor
Person may exercise every right and power of the Company under this Indenture
with the same effect as if such successor Person had been named as the Company
herein; provided, however,
that the predecessor Company shall not be relieved from the obligation to pay
the principal of and interest on the Notes except in the case of a sale of all
of the Company’s assets that meets the requirements of Section 5.01
hereof.


 


ARTICLE 6


 


DEFAULTS AND REMEDIES


 


SECTION 6.01.               Events of Default.


 


Each
of the following is an “Event of Default”:


 


(a)           default for 30 days in the payment when due of interest
on, or Additional Interest with respect to, the Notes;


 


(b)           default in payment when due of the principal of or
premium, if any, on the Notes;


 


(c)           failure by the Company or any of its Restricted
Subsidiaries to comply with the provisions
described under Sections 4.06, 4.07 or 5.01 hereof; provided, that in the case
of Section 4.07, such failure has not been cured within 30 days.


 


(d)           failure by the Company or any of its Restricted
Subsidiaries to comply with any of the other agreements in this Indenture for
60 days (or 90 days in the case of Section 4.18) after notice to the
Company by the Trustee or the Holders of at least 25% in aggregate principal
amount of the Notes then outstanding;


 


(e)           default (after giving effect to any waivers, amendments,
grace periods or extensions of any maturity date) under any mortgage, indenture
or instrument under which there may be issued or by which there may be secured
or evidenced any Indebtedness for money borrowed by the Company or any of its
Restricted Subsidiaries (or the 


 


75

















 


payment of which is
guaranteed by the Company or any of its Restricted Subsidiaries) whether such
Indebtedness or Guarantee now exists, or is created after the Issue Date, if
that default:


 


(i)            is caused by a failure to pay principal of or premium, if
any, or interest on such Indebtedness after the expiration of the grace period
provided in such Indebtedness (a “Payment Default”); or


 


(ii)           results in the acceleration of such Indebtedness prior to
its express maturity; and


 


(iii)          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 $20.0 million or more;


 


(f)            failure by the Company or any of its Restricted
Subsidiaries to pay final non-appealable judgments aggregating in excess of
$20.0 million (not covered by insurance policies or credit-worthy third party
indemnity under which the insurer or indemnifying party has not denied coverage
or liability, as applicable), which judgments are not paid, waived, discharged
or stayed within 60 days following entry of judgment;


 


(g)           except as permitted by this Indenture, any Note Guarantee
of any Restricted Subsidiary that is a Significant Subsidiary or of any group
of Restricted Subsidiaries that, taken together, would constitute a Significant
Subsidiary, shall be held in any judicial proceeding to be unenforceable or
invalid or shall cease for any reason to be in full force and effect or any
Guarantor, or any Person acting on behalf of any Guarantor, shall deny or
disaffirm its obligations under its Note Guarantee;


 


(h)           the Company or any of the Company’s Restricted
Subsidiaries that are Significant Subsidiaries or any group of Restricted
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,


 


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


 


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


 


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


 


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


 


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


 


(i)            is for relief against the Company or any of the Company’s
Restricted Subsidiaries that are Significant Subsidiaries or any group of
Restricted Subsidiaries that, taken as a whole, would constitute a Significant
Subsidiary in an involuntary case;


 


(ii)           appoints a custodian of the Company or any of the Company’s
Restricted Subsidiaries that are Significant Subsidiaries or any group of
Restricted Subsidiaries that, taken as a whole, would constitute a Significant
Subsidiary or for all or substantially all of the property of the Company or
any of the Company’s Restricted Subsidiaries that are Significant Subsidiaries
or any group of Restricted Subsidiaries that, taken as a whole, would constitute
a Significant Subsidiary; or


 


(iii)          orders the liquidation of the Company or any of the Company’s
Restricted Subsidiaries that are Significant Subsidiaries or any group of
Restricted Subsidiaries that, taken as a whole, would constitute a Significant
Subsidiary;


 


and
the order or decree remains unstayed and in effect for 60 consecutive days; or


 


(j)            (i) with respect to any Collateral having a fair
market value in excess of $10.0 million, individually or in the aggregate,
(A) any default or breach by the Company or any Guarantor in the
performance of its obligations under the Security Documents or this Indenture
which adversely affects in any material respect the condition or value of the
Collateral or the enforceability, validity, perfection or priority of the
Second Priority Liens, taken as a whole, and continuance of such default or
breach for a period of 60 days after written notice thereof by the Trustee or
the Holders of 25% in principal amount of the outstanding Notes, or
(B) any security interest created under the Security Documents or under
this Indenture is declared invalid or unenforceable by a court of competent
jurisdiction; or (ii) the Company or any Guarantor asserts, in any
pleading in any court of competent jurisdiction, that any security interest in
any Collateral is invalid or unenforceable.


 


SECTION 6.02.               Acceleration.


 


If
any Event of Default (other than an Event of Default specified in clause (h) or
(i) of Section 6.01 hereof with respect to the Company, any
Restricted Subsidiary that is a Significant Subsidiary or any group of
Restricted Subsidiaries that, taken as a whole, would constitute a Significant
Subsidiary) occurs and is continuing, the Trustee or the Holders of at least
25% in principal amount of the then outstanding Notes may declare all the Notes
to be due and payable immediately.  Upon
any such declaration, the Notes shall become due and payable immediately.  Notwithstanding the foregoing, if an Event of
Default specified in clause (h) or (i) of Section 6.01 hereof
occurs with respect to the Company, any Restricted Subsidiary constituting a
Significant Subsidiary or any group of Restricted Subsidiaries that, taken
together, would constitute a 


 


77

















 


Significant
Subsidiary, all outstanding Notes shall be due and payable immediately without
further action or notice.  The Holders of
a majority in aggregate principal amount of the then outstanding Notes by
written notice to the Trustee may on behalf of all of the Holders rescind an
acceleration and its consequences if the rescission would not conflict with any
judgment or decree and if all existing Events of Default (except nonpayment of
principal, interest or premium that has become due solely because of the
acceleration) have been cured or waived.


 


SECTION 6.03.               Other Remedies.


 


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


 


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 6.04.               Waiver of Past Defaults.


 


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


 


SECTION 6.05.               Control by Majority.


 


Subject
to the terms of the Security Documents, the Holders of a majority in principal
amount of the then outstanding Notes may direct the time, method and place of
conducting any proceeding for exercising any remedy available to the Trustee or
exercising any trust or power conferred on it. 
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.


 


78

















 


SECTION 6.06.               Limitation on Suits.


 


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


 


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


 


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


 


(c)           such Holder of a Note or Holders of Notes offer and, if
requested, provide to the Trustee indemnity satisfactory to the Trustee against
any loss, liability or expense;


 


(d)           the Trustee does not comply with the request within 60
days after receipt of the request and the offer and, if requested, the
provision of indemnity; and


 


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


 


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


 


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


 


Notwithstanding
any other provision of this Indenture, the right of any Holder of a Note to
receive payment of principal, premium and interest on the Note, on or after the
respective due dates expressed in the Note (including in connection with an
offer to purchase), or to bring suit for the enforcement of any such payment on
or after such respective dates, shall not be impaired or affected without the
consent of such Holder.


 


SECTION 6.08.               Collection Suit by Trustee.


 


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


 


SECTION 6.09.               Trustee May File Proofs
of Claim.


 


The
Trustee is authorized to file such proofs of claim and other papers or
documents as may be necessary or advisable in order to have the claims of the
Trustee (including any claim for the reasonable compensation, expenses,
disbursements and advances of the Trustee, its 


 


79

















 


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


 


SECTION 6.10.               Priorities.


 


Subject
to the terms of the Security Documents, if the Trustee collects (or receives
from the Collateral Agent under any Security Documents) any money pursuant to
this Article, it shall pay out the money in the following order, at the date or
dates fixed by the Trustee and, in the case of the distribution of such money
on account of principal (or premium, if any) or interest, if any, upon
presentation of the Notes and the notation thereon of the payment if only
partially paid and upon surrender thereof if fully paid:


 


First:  to the Trustee and the Collateral Agent, its
agents and attorneys for amounts due under Section 7.07 hereof, including
payment of all compensation, expense, indemnities and liabilities incurred, and
all advances made, by the Trustee or Collateral Agent 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, and interest, ratably,
without preference or priority of any kind, according to the amounts due and
payable on the Notes for principal, premium, if any, and interest,
respectively; and


 


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


 


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


 


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SECTION 6.11.               Undertaking for Costs.


 


In
any suit for the enforcement of any right or remedy under this Indenture or in
any suit against the Trustee for any action taken or omitted by it as a
Trustee, a court in its discretion may require the filing by any party litigant
in the suit of an undertaking to pay the costs of the suit, and the court in
its discretion may assess reasonable costs, including reasonable attorneys’
fees and expenses against any party litigant in the suit, having due regard to
the merits and good faith of the claims or defenses made by the party
litigant.  This Section 6.11 does
not apply to a suit by the Trustee, a suit by a Holder of a Note pursuant to Section 6.07
hereof, or a suit by Holders of more than 10% in principal amount of the then
outstanding Notes.


 


SECTION 6.12.               Notice.


 


The
Company is required to deliver to the Trustee annually a statement regarding
compliance with this Indenture pursuant to Section 4.03(a).  Upon becoming aware of any Default or Event
of Default, the Company is required to deliver to the Trustee a statement
specifying such Default or Event of Default.


 


ARTICLE 7


 


TRUSTEE


 


SECTION 7.01.               Duties of Trustee.


 


(a)           If an Event of Default has occurred and is continuing, the
Trustee shall exercise such of the rights and powers vested in it by this
Indenture and the Security Documents, 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, in the case of any such certificates
or opinions which by any provision hereof are specifically required to be
furnished to the Trustee, the Trustee shall be under a duty to examine the same
to determine whether or not they conform to the requirements of this Indenture
(but need not confirm or investigate the accuracy of mathematical calculations
or other facts stated therein).


 


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


 


(i)            this paragraph does not limit the effect of paragraph (b) or
(e) 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 in a final nonappealable
judgment of a court of competent jurisdiction that the Trustee was negligent in
ascertaining the pertinent facts; and


 


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


 


(d)           Whether or not therein expressly so provided, every
provision of this Indenture or any provision of any Security Document that in
any way relates to the Trustee or the Collateral Agent is subject to paragraphs
(a), (b), and (c) of this Section.


 


(e)           No provision of this Indenture or the Security Documents
shall require the Trustee or the Collateral Agent to expend or risk its own
funds or incur any liability.  The
Trustee and the Collateral Agent shall be under no obligation to exercise any
of its rights and powers under this Indenture or the Security Documents at the
request of any Holders, unless such Holder shall have offered to the Trustee
and/or the Collateral Agent, as applicable, security and indemnity satisfactory
to it against any loss, liability or expense.


 


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


 


SECTION 7.02.               Rights of Trustee.


 


(a)           The Trustee may conclusively rely upon any document
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 of its selection and the advice of such
counsel or any Opinion of Counsel shall be full and complete authorization and
protection from liability in respect of any action taken, suffered or omitted
by it hereunder in good faith and in reliance thereon.


 


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


 


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(d)           The Trustee shall not be liable for any action it takes or
omits to take in good faith that it believes to be authorized or within the
rights or powers conferred upon it by this Indenture.


 


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


 


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


 


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


 


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


 


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


 


SECTION 7.03.               Individual Rights of Trustee.


 


The
Trustee in its individual or any other capacity may become the owner or pledgee
of Notes and may otherwise deal with the Company, any Guarantors 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 7.10 and 7.11 hereof.


 


SECTION 7.04.               Trustee’s Disclaimer.


 


Neither
the Trustee nor the Collateral Agent shall be responsible for or make any
representation as to the validity or adequacy of this Indenture or the Notes,
or the existence, genuineness, value or protection of any Collateral (except
for the safe custody of Collateral in its possession actually received by it in
accordance with the terms hereof or the terms of any Security Document) for the
legality, effectiveness or sufficiency of any Security Document, or for the
creation, perfection, priority, sufficiency or protection of any Second Priority
Lien, and neither the Trustee nor the Collateral Agent shall 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


 


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provision
of this Indenture, neither the Trustee nor the Collateral Agent shall be
responsible for the use or application of any money received by any Paying
Agent other than the Trustee, and neither the Trustee nor the Collateral Agent
shall be responsible for any statement or recital herein or any statement in
the Notes, any statement or recital in any document in connection with the sale
of the Notes or pursuant to this Indenture other than the Trustee’s certificate
of authentication on the Notes


 


SECTION 7.05.               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 the date the Trustee
acquires knowledge thereof.  Except in
the case of a Default or Event of Default in payment of principal of, premium,
if any, or interest on any Note, the Trustee may withhold the notice if and so
long as a committee of its Responsible Officers in good faith determines that
withholding the notice is in the interests of the Holders of the Notes.


 


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


 


Within
60 days after each May 15 following the Issue Date (beginning with May 15,
2010), 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 Section 313(a) (but if no event described in TIA Section 313(a) has
occurred within the twelve months preceding the reporting date, no report need
be transmitted).  The Trustee also shall
comply with TIA Section 313(b), if applicable, and TIA Section 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 Section 313(d).  The Company shall promptly notify the Trustee
in writing when the Notes are listed on any stock exchange or delisted from any
stock exchange.


 


SECTION 7.07.               Compensation and Indemnity.


 


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


 


The
Company and the Guarantors shall indemnify each of the Trustee and its
officers, directors, agents and employees or any successor Trustee against any
and all losses, damages, claims, 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 


 


84

















 


enforcing
this Indenture against the Company and the Guarantors (including this Section 7.07)
and defending itself against any claim (whether asserted by the Company, any
Guarantor, 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 gross
negligence or willful misconduct.  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 and the Guarantors of their obligations
hereunder.  The Company and the
Guarantors shall defend the claim and the Trustee shall cooperate in the
defense.  The Trustee may have separate
counsel and the Company and the Guarantors shall pay the reasonable fees and
expenses of such counsel.  The Company
and the Guarantors need not pay for any settlement made without their consent,
which consent shall not be unreasonably withheld.


 


The
obligations of the Company and the Guarantors under this Section 7.07 are
joint and several and shall survive the satisfaction, discharge or termination
of this Indenture and the resignation or removal of the Trustee.


 


To
secure the Company’s and the Guarantors’ payment obligations in this Section 7.07,
the Trustee shall have a Lien prior to the Notes on all money or property held
or collected by the Trustee, except that held in trust to pay principal and
interest on particular Notes.  Such Lien
shall survive the satisfaction and discharge of this Indenture.


 


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


 


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


 


SECTION 7.08.               Replacement of Trustee.


 


A
resignation or removal of the Trustee and appointment of a successor Trustee
shall become effective only upon the successor Trustee’s acceptance of
appointment as provided in this Section 7.08.


 


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


 


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


 


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


 


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


 


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(d)           the Trustee becomes incapable of acting.


 


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


 


If
a successor Trustee does not take office within 60 days after the retiring
Trustee resigns or is removed, the retiring Trustee, the Company, any Guarantor
or the Holders of Notes of at least 10% in principal amount of the then
outstanding Notes may petition, at the expense of the Company, 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 7.10,
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 all sums owing to the Trustee hereunder have been
paid and subject to the Lien provided for in Section 7.07 hereof.  Notwithstanding replacement of the Trustee
pursuant to this Section 7.08, the Company’s and the Guarantors’
obligations under Section 7.07 hereof shall continue for the benefit of
the retiring Trustee.


 


SECTION 7.09.               Successor Trustee by Merger, etc.


 


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


 


SECTION 7.10.               Eligibility; Disqualification.


 


There
shall at all times be a Trustee hereunder that is a corporation organized and
doing business under the laws of the United States of America or of any state
thereof that is authorized under such laws to exercise corporate trustee power,
that is subject to supervision or examination by federal or state authorities and
that has a combined capital and surplus of at least $100 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 Section 310(a)(1),
(2) and (5).  The Trustee is subject
to, and shall comply with, TIA Section 310(b).


 


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SECTION 7.11.               Preferential Collection of
Claims Against Company.


 


The
Trustee is subject to, and shall comply with, TIA Section 311(a), excluding
any creditor relationship listed in TIA Section 311(b).  A Trustee who has resigned or been removed
shall be subject to TIA Section 311(a) to the extent indicated
therein.


 


SECTION 7.12.               Collateral Agent.


 


The
rights, privileges, protections, immunities and benefits given to the Trustee,
including its right to be indemnified, are extended to, and shall be
enforceable by, the Collateral Agent as if the Collateral Agent were named as
the Trustee herein and the Security Documents were named as this Indenture
herein.


 


SECTION 7.13.               Co-Trustees; Separate Trustee;
Collateral Agent


 


At
any time or times, for the purpose of meeting the legal requirements of any
jurisdiction in which any of the Collateral may at the time be located, the
Company, the Collateral Agent and the Trustee shall have power to appoint, and,
upon the written request of (i) the Trustee or the Collateral Agent or
(ii) the Holders of at least 25% of the outstanding principal amount of
the Notes, the Company shall for such purpose join with the Trustee in the
execution, delivery and performance of all instruments and agreements necessary
or proper to appoint, one or more Persons approved by the Trustee either to act
as co-trustee, jointly with the Trustee, or to act as separate trustee, co-collateral
agent, sub-collateral agent or separate collateral agent of any such property,
in either case with such powers as may be provided in the instrument of
appointment, and to vest in such Person or Persons in the capacity aforesaid,
any property, title, right or power deemed necessary or desirable, subject to
the other provisions of this Section 7.13. 
If the Company does not join in such appointment within 15 days after
the receipt by it of a request so to do, or in case an Event of Default has
occurred and is continuing, the Trustee or the Collateral Agent alone shall
have power to make such appointment.


 


Should
any written instrument from the Company be requested by any co-trustee or
separate trustee or co-collateral agent, sub-collateral agent or separate
collateral agent so appointed for more fully confirming to such co-trustee or
separate trustee such property, title, right or power, any and all such
instruments shall, on request of such co-trustee or separate trustee or
separate collateral agent, be executed, acknowledged and delivered by the
Company.


 


Any
co-trustee, separate trustee or co-collateral agent, sub-collateral agent or
separate collateral agent shall agree in writing to be and shall be subject to
the provisions of the applicable Security Documents as if it were the Trustee
or Collateral Agent thereunder (and the Trustee and Collateral Agent shall
continue to be so subject).


 


Every
co-trustee or separate trustee or co-collateral agent, sub-collateral agent or
separate collateral agent shall, to the extent permitted by law, but to such
extent only, be appointed subject to the following terms, namely:


 


(a)           The Notes shall be authenticated and delivered, and all
rights, powers, duties and obligations hereunder in respect of the custody of securities,
cash and other 


 


87

















 


personal property held by,
or required to be deposited or pledged with, the Trustee hereunder, shall be
exercised solely, by the Trustee.


 


(b)           The rights, powers, duties and obligations hereby
conferred or imposed upon the Trustee in respect of any property covered by
such appointment shall be conferred or imposed upon and exercised or performed
by the Trustee or by the Trustee and such co-trustee or separate trustee
jointly, or by the Trustee and such co-collateral agent, sub-collateral agent
or separate collateral agent jointly as shall be provided in the instrument
appointing such co-trustee, separate trustee or separate collateral agent,
except to the extent that under any law of any jurisdiction in which any
particular act is to be performed, the Trustee shall be incompetent or
unqualified to perform such act, in which event such rights, powers, duties and
obligations shall be exercised and performed by such co-trustee, separate
trustee or co-collateral agent, sub-collateral agent or separate collateral
agent.


 


(c)           The Trustee at any time, by an instrument in writing
executed by it, with the concurrence of the Company evidenced by a board
resolution, may accept the resignation of or remove any co-trustee, separate
trustee or co-collateral agent, sub-collateral agent or separate collateral
agent appointed under this Section 7.13, and, in case an Event of Default
has occurred and is continuing, the Trustee shall have power to accept the
resignation of, or remove, any such co-trustee, separate trustee or
co-collateral agent, sub-collateral agent or separate collateral agent without
the concurrence of the Company.  Upon the
written request of the Trustee, the Company shall join with the Trustee in the
execution, delivery and performance of all instruments and agreements necessary
or proper to effectuate such resignation or removal.  A successor to any co-trustee, separate
trustee or co-collateral agent, sub-collateral agent or separate collateral
agent so resigned or removed may be appointed in the manner provided in this Section 7.13.


 


(d)           No co-trustee, separate trustee or co-collateral agent,
sub-collateral agent or separate collateral agent hereunder shall be liable by
reason of any act or omission of the Trustee, or any other such trustee,
co-trustee, separate trustee, co-collateral agent, sub-collateral agent or
separate collateral agent hereunder.


 


(e)           The Trustee shall not be liable by reason of any act or
omission of any co-trustee, separate trustee, co-collateral agent,
sub-collateral agent or separate collateral agent.


 


(f)            Any act of Holders delivered to the Trustee shall be
deemed to have been delivered to each such co-trustee, separate trustee or
co-collateral agent, sub-collateral agent or separate collateral agent, as the
case may be.


 


SECTION 7.14.               Patriot Act.


 


The
parties hereto acknowledge that in accordance with Section 326 of the USA
PATRIOT Act (Title III of Pub. L. 107-56 (signed into law October 26,
2001)) (the “U.S.A. Patriot Act”), the Trustee, like all financial institutions
and in order to help fight the funding of 


 


88

















 


terrorism
and money laundering, is required to obtain, verify, and record information
that identifies each person or legal entity that establishes a relationship or
opens an account with the Trustee.  The
parties to this Indenture agree that they will provide the Trustee with such
information as it may request in order for the Trustee to satisfy the
requirements of the U.S.A. Patriot Act.


 


SECTION 7.15.               Force Majeure


 


In
no event shall the Trustee be responsible or liable for any failure or delay in
the performance of its obligations hereunder arising out of or caused by,
directly or indirectly, forces beyond its control, including, without
limitation, strikes, work stoppages, accidents, acts of war or terrorism, civil
or military disturbances, nuclear or natural catastrophes or acts of God, and
interruptions, loss or malfunctions of utilities, communications or computer
(software and hardware) services; it being understood that the Trustee shall
use reasonable efforts which are consistent with accepted practices in the
banking industry to resume performance as soon as practicable under the circumstances.


 


SECTION 7.16.               Limitation on Duty of Trustee
in Respect of Collateral; Indemnification.


 


(a)           Beyond the exercise of reasonable care in the custody
thereof, the Trustee shall have no duty as to any Collateral in its possession
or control or in the possession or control of any agent or bailee or any income
thereon or as to preservation of rights against prior parties or any other
rights pertaining thereto and the Trustee shall not be responsible for filing
any financing or continuation statements or recording any documents or
instruments in any public office at any time or times or otherwise perfecting
or maintaining the perfection of any security interest in the Collateral. The
Trustee shall be deemed to have exercised reasonable care in the custody of the
Collateral in its possession if the Collateral is accorded treatment
substantially equal to that which it accords its own property and shall not be
liable or responsible for any loss or diminution in the value of any of the
Collateral, by reason of the act or omission of any carrier, forwarding agency
or other agent or bailee selected by the Trustee in good faith.


 


(b)           The Trustee shall not be responsible for the existence,
genuineness or value of any of the Collateral or for the validity, perfection, priority
or enforceability of the Liens in any of the Collateral, whether impaired by
operation of law or by reason of any action or omission to act on its part
hereunder, except to the extent such action or omission constitutes gross
negligence, bad faith or willful misconduct on the part of the Trustee, for the
validity or sufficiency of the Collateral or any agreement or assignment
contained therein, for the validity of the title of the Company to the
Collateral, for insuring the Collateral or for the payment of taxes, charges,
assessments or Liens upon the Collateral or otherwise as to the maintenance of
the Collateral. The Trustee shall have no duty to ascertain or inquire as to
the performance or observance of any of the terms of this Indenture or the Security
Documents by the Company, any Guarantor, the Secured Parties or the Collateral
Agent.


 


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ARTICLE 8


 


LEGAL DEFEASANCE AND
COVENANT DEFEASANCE


 


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


 


The
Company may, at the option of its Board of Directors evidenced by a resolution
set forth in an Officers’ Certificate, at any time, elect to have either Section 8.02
or 8.03 hereof be applied to all outstanding Notes upon compliance with the
conditions set forth below in this Article 8.


 


SECTION 8.02.               Legal Defeasance and Discharge.


 


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


 


SECTION 8.03.               Covenant Defeasance.


 


Upon
the Company’s exercise under Section 8.01 hereof of the option applicable
to this Section 8.03, the Company and the Guarantors shall, subject to the
satisfaction of the conditions set forth in Section 8.04 hereof, be
released from its obligations under the Security Documents and the covenants
contained in Sections 4.06, 4.07, 4.08, 4.09, 4.10, 4.11, 4.12, 4.13, 4.14,
4.15, 4.16, 4.17, 4.18, 4.19 and 5.01(c), (d), (e) and (f) 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 


 


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


 


SECTION 8.04.               Conditions to Legal or
Covenant Defeasance.


 


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


 


In
order to exercise either Legal Defeasance or Covenant Defeasance:


 


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


 


(b)           in the case of an election under Section 8.02 hereof,
the Company shall deliver to the Trustee an Opinion of Counsel in the United
States reasonably acceptable to the Trustee confirming that (A) the
Company has received from, or there has been published by, the Internal Revenue
Service a ruling or (B) since the Issue Date, there has been a change in
the applicable federal income tax law, in either case to the effect that, and
based thereon such Opinion of Counsel shall confirm that, the Holders of the outstanding
Notes will not recognize income, gain or loss for federal income tax purposes
as a result of such Legal Defeasance and will be subject to federal income tax
on the same amounts, in the same manner and at the same times as would have
been the case if such Legal Defeasance had not occurred; provided,
that the opinion of counsel required by this clause (b) with respect to
Legal Defeasance need not be delivered if all Notes not theretofore delivered
to the Trustee for cancellation have become due and payable or will become due
and payable at the Stated Maturity within one year under arrangements
satisfactory to the Trustee for the giving of notice of redemption by the
Trustee in the name, and at the expense of, the Company;


 


(c)           in the case of an election under Section 8.03 hereof,
the Company shall have delivered to the Trustee an Opinion of Counsel in the
United States reasonably 


 


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acceptable to the Trustee
confirming that the Holders of the outstanding Notes will not recognize income,
gain or loss for federal income tax purposes as a result of such Covenant
Defeasance and will be subject to federal income tax on the same amounts, in
the same manner and at the same times as would have been the case if such
Covenant Defeasance had not occurred;


 


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


 


(e)           such Legal Defeasance or Covenant Defeasance will not
result in a breach or violation of, or constitute a default under, any First
Lien Obligation or any other 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 must 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 subject to the effect of any applicable bankruptcy,
insolvency, reorganization or similar laws affecting creditors’ rights
generally;


 


(g)           the Company must deliver 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; and


 


(h)           the Company must deliver to the Trustee an Officers’ Certificate
and an Opinion of Counsel, each stating that all conditions precedent provided
for, in the case of the Officers’ Certificate, clauses (a) through (g) and,
in the case of the Opinion of Counsel, clauses (b), (c), (e) and (f) of
this Section 8.04 relating to the Legal Defeasance or the Covenant
Defeasance, as applicable, have been complied with.


 


SECTION 8.05.               Deposited Money and Government
Securities to Be Held in Trust; Other Miscellaneous Provisions.


 


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


 


The
Company and the Guarantors shall jointly and severally pay and indemnify the
Trustee against any tax, fee or other charge imposed on or assessed against the
cash or non-


 


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callable
Government Securities deposited pursuant to Section 8.04 hereof or the
principal and interest received in respect thereof other than any such tax, fee
or other charge which by law is for the account of the Holders of the
outstanding Notes.


 


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


 


SECTION 8.06.               Repayment to Company.


 


Any
money deposited with the Trustee or any Paying Agent, or then held by the
Company, in trust for the payment of the principal of, premium, if any, or
interest on any Note and remaining unclaimed for two years after such
principal, and premium, if any, or interest has become due and payable shall,
subject to applicable escheat law, 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
or Guarantors 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
shall be repaid to the Company.


 


SECTION 8.07.               Reinstatement.


 


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


 


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ARTICLE 9


 


AMENDMENTS, SUPPLEMENT AND
WAIVER


 


SECTION 9.01.         Without Consent of Holders
of Notes.


 


Notwithstanding
Section 9.02 of this Indenture, the Company and the Guarantors and the
Trustee may amend or supplement this Indenture, the Note Guarantees, the Notes
or (subject to any required consents of others) the Security Documents 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 or to
alter the provisions of Article 2 hereof (including the related
definitions) in a manner that does not materially adversely affect any Holder;


 


(c)           to provide for the
assumption of the Company’s obligations to the Holders of the Notes in the case
of a merger or consolidation or sale of all or substantially all of the Company’s
assets pursuant to Article 5 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 any Holder of the
Note;


 


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


 


(f)            to evidence and provide for
the acceptance of appointment under the Security Documents by a successor
Collateral Agent;


 


(g)           to add to the Collateral
securing the Notes;


 


(h)           to conform the text of this
Indenture, the Notes or the Security Documents to any provision of the “Description
of the Notes” contained within the Final Offering Memorandum of the Company
dated April 1, 2010 (“Final Offering Memorandum”) to the extent
that the Trustee has received an Officers’ Certificate stating that such text
constitutes an unintended conflict with the description of the corresponding
provision in the “Description of the Notes”;


 


(i)            to mortgage, pledge,
hypothecate or grant any other Lien in favor of the Collateral Agent for the
benefit of the Secured Parties, as additional security for the payment and
performance of all or any portion of the Second Lien Obligations, on any
property or assets, including any which are required to be mortgaged, pledged
or hypothecated, or on which a Lien is required to be granted to or for the
benefit of the Trustee or the Collateral Agent pursuant to this Indenture, any
of the Security Documents or otherwise;


 


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(j)            to provide for the amendment
of the Security Documents or release of Collateral from the Lien of this
Indenture and the Security Documents, in either case, when permitted or
required by the Security Documents or this Indenture;


 


(k)           to secure any Permitted
Additional Pari Passu Obligations under the Security Documents and to
appropriately include the same in the Intercreditor Agreement;


 


(l)            to provide for or confirm
the issuance of Additional Notes in accordance with the terms of this
Indenture; or


 


(m)          to evidence and provide for
the acceptance of appointment under this Indenture and the Security Documents
by a successor Trustee or Collateral Agent.


 


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


 


SECTION 9.02.         With Consent of Holders of
Notes.


 


Except
as provided below in this Section 9.02, (i) the Company, the
Guarantors and the Trustee may amend or supplement this Indenture (including
Sections 3.09, 4.06 and 4.07 hereof), the Note Guarantees, and the Notes with
the consent of the Holders of at least a majority in 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, the
Notes), and, subject to Sections 6.04 and 6.07 hereof, any existing Default or
Event of Default (other than a Default or Event of Default in the payment of
the principal of, premium, if any, or interest on the Notes, except a payment
default resulting from an acceleration that has been rescinded) or compliance
with any provision of this Indenture, the Note Guarantees or the Notes may be
waived with the consent of the Holders of at least a majority in principal
amount of the then outstanding Notes (including consents obtained in connection
with a purchase of, or tender offer or exchange offer for, the Notes) and (ii) the
Security Documents or the obligations thereunder may be amended or
supplemented, or compliance may be waived with the consent of the Holders of
not less than a majority in aggregate principal amount of the Notes and the
Permitted Additional Pari Passu Obligations then outstanding, voting as one
class.


 


Upon
the request of the Company accompanied by a resolution of the Board of
Directors of the Company and each of the Guarantors authorizing the execution
of any such amended or supplemental Indenture, and upon the filing with the
Trustee of evidence satisfactory to the Trustee of the consent of the Holders
of Notes as aforesaid, and upon receipt by the Trustee of the documents
described in Section 7.02 hereof, the Trustee shall join with the Company 


 


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and
each of the Guarantors in the execution of such amended or supplemental
Indenture unless otherwise provided in Section 9.06 hereof.


 


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


 


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


 


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


 


(b)           reduce the principal of or
change the fixed maturity of any Note or alter the provisions with respect to
the redemption of the Notes (other than provisions relating to Sections 3.09,
4.06 and 4.07 hereof);


 


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


 


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


 


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


 


(f)            make any change in the
provisions of this Indenture relating to waivers of past Defaults or the rights
of Holders of Notes to receive payments of principal of or premium, if any, or
Additional Interest or interest on the Notes;


 


(g)           waive a redemption payment
with respect to any Note (other than a payment required by Sections 3.09, 4.06
or 4.07);


 


(h)           release any Guarantor from
any of its obligations under its Note Guarantee or this Indenture, or amend the
provisions of this Indenture relating to the release of Guarantors, except as
set forth in this Indenture or the Security Documents;


 


(i)            except as set forth in this
Indenture, subordinate in right of payment, the Notes to any other Indebtedness
of the Company; or


 


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


 


In
addition, without the consent of Holders of at least 75% of the principal
amount of Notes then outstanding, no amendment or waiver may release all or
substantially all of the Collateral from the Liens of the Security Documents
otherwise than in accordance with the terms of this Indenture and the Security
Documents.


 


SECTION 9.03.         Compliance with Trust
Indenture Act.


 


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


 


SECTION 9.04.         Revocation and Effect of
Consents.


 


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


 


SECTION 9.05.         Notation on or Exchange of
Notes.


 


The
Trustee may place an appropriate notation about an amendment, supplement or
waiver on any Note thereafter authenticated. 
The Company in exchange for all Notes may issue and the Trustee shall
authenticate new Notes (accompanied by a notation of the Note Guarantees duly
endorsed by the Guarantors) that reflect the amendment, supplement or waiver.


 


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


 


SECTION 9.06.         Trustee to Sign Amendments, etc.


 


The
Trustee shall sign any amended or supplemental Indenture authorized pursuant to
this Article 9 if the amendment or supplement does not adversely affect
the rights, duties, liabilities or immunities of the Trustee.  The Company and the Guarantors 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 7.01) shall be fully protected in relying upon, an Officers’
Certificate and an Opinion of Counsel stating that the execution of such
amended or supplemental indenture is authorized or permitted by this Indenture.


 


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ARTICLE 10


 


GUARANTEES


 


SECTION 10.01.       Note Guarantees.


 


Subject
to the provisions of this Article 10, each of the Guarantors hereby,
jointly and severally, unconditionally guarantees to each Holder of a Note
authenticated and delivered by the Trustee and to the Trustee and its
successors and assigns, that:  (a) the
principal of, premium and interest on the Notes shall be promptly paid in full
when due, whether at the maturity or interest payment or mandatory redemption
date, by acceleration, redemption or otherwise, and interest on the overdue principal
of, premium and interest on the Notes, if any, if lawful, and all other
obligations of the Company to the Holders or the Trustee under this Indenture
and the Notes shall be promptly paid in full or performed, all in accordance
with the terms of this Indenture and the Notes; and (b) in case of any
extension of time of payment or renewal of any Notes or any of such other
obligations, that same shall be promptly paid in full when due or performed in
accordance with the terms of the extension or renewal, whether at stated
maturity, by acceleration or otherwise. 
Failing payment when due of any amount so guaranteed for whatever
reason, the Guarantors shall be jointly and severally obligated to pay the same
immediately.  Each of the Note Guarantees
shall be a guarantee of payment and not of collection.  The Guarantors hereby agree that their
obligations hereunder shall be unconditional, irrespective of the validity,
regularity or enforceability of the Notes or this Indenture, the absence of any
action to enforce the same, any waiver or consent by any Holder of the Notes
with respect to any provisions of this Indenture and the Notes, the recovery of
any judgment against the Company, any action to enforce the same or any other
circumstance which might otherwise constitute a legal or equitable discharge or
defense of a Guarantor.  Each Guarantor
hereby waives diligence, presentment, demand of payment, filing of claims with
a court in the event of insolvency or bankruptcy of the Company, any right to
require a proceeding first against the Company, protest, notice and all demands
whatsoever and covenant that the Note Guarantees shall not be discharged except
by complete performance of the obligations contained in the Notes and this
Indenture.  As more particularly set
forth in Section 4.13, the Notes shall be guaranteed in the future by each
new Restricted Subsidiary so long as such Restricted Subsidiary is not
prohibited by law from guaranteeing the Notes. 
The Notes also shall be guaranteed in the future as required by
Section 4.14.


 


If
any Holder or the Trustee is required by any court or otherwise to return to
the Company or Guarantors, or any Custodian, Trustee, liquidator or other
similar official acting in relation to either the Company or Guarantors, any amount
paid by either to the Trustee or such Holder, these Note Guarantees, to the
extent theretofore discharged, shall be reinstated in full force and
effect.  Each Guarantor agrees that it
shall not be entitled to any right of subrogation in relation to the Holders in
respect of any obligations guaranteed hereby until payment in full of all
obligations guaranteed hereby.


 


Each
Guarantor further agrees that, as between the Guarantors, on the one hand, and
the Holders and the Trustee, on the other hand, (x) the maturity of the
obligations guaranteed hereby may be accelerated as provided in Article 6
hereof for the purposes of these Note Guarantees, notwithstanding any stay,
injunction or other prohibition preventing such acceleration in 


 


98

















 


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


 


SECTION 10.02.       Limitation of Guarantor’s
Liability.


 


Each
Guarantor and, by its acceptance hereof, each Holder hereof, hereby confirms
that it is its intention that the Note Guarantee by such Guarantor not
constitute a fraudulent transfer or conveyance for purposes of the Bankruptcy
Law, the Uniform Fraudulent Conveyance Act, the Uniform Fraudulent Transfer Act
or any similar federal or state law to the extent applicable to the Note
Guarantees.  To effectuate the foregoing
intention, the Trustee, the Holders and the Guarantors each hereby irrevocably
agrees that the obligation of such Guarantor under its Note Guarantee shall be
limited to the maximum amount as shall, after giving effect to such maximum
amount and all other (contingent or otherwise) liabilities of such Guarantor
that are relevant under such laws, and after giving effect to any rights to
contribution of such Guarantor pursuant to any agreement providing for an
equitable contribution among such Guarantor and other Guarantors of payments
made by guarantees by such parties, result in the obligations of such Guarantor
in respect of such maximum amount not constituting a fraudulent
conveyance.  Each Holder, by accepting
the benefits hereof, confirms its intention that, in the event of bankruptcy,
reorganization or other similar proceeding of the Company or any Guarantor in
which concurrent claims are made upon such Guarantor hereunder, to the extent
such claims shall not be fully satisfied, each such claimant with a valid claim
against the Company shall be entitled to a ratable share of all payments by
such Guarantor in respect of such concurrent claims.


 


SECTION 10.03.       Execution and Delivery of
Note Guarantees.


 


To
evidence the Note Guarantees set forth in Section 10.01 hereof, each
Guarantor hereby agrees that a notation of the Note Guarantees substantially in
the form of Exhibit D shall be endorsed by an Officer of such Guarantor on
each Note authenticated and delivered by the Trustee.


 


Each
Guarantor hereby agrees that the Note Guarantees set forth in Section 10.01
shall remain in full force and effect notwithstanding any failure to endorse on
each Note a notation of the Note Guarantees.


 


If
an officer or Officer whose signature is on this Indenture or on the Note
Guarantees no longer holds that office at the time the Trustee authenticates
the Note on which the Note Guarantees are endorsed, the Note Guarantees shall
be valid nevertheless.


 


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


 


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SECTION 10.04.       Guarantors May Consolidate, etc.,
on Certain Terms.


 


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


 


(b)           Except as set forth in
Articles 4 and 5 hereof, nothing contained in this Indenture or in any of the
Notes shall prevent any consolidation or merger of a Guarantor with or into a
corporation or corporations other than the Company (whether or not affiliated
with the Guarantor), or successive consolidations or mergers in which a
Guarantor or its successor or successors shall be a party or parties, or shall
prevent any sale or conveyance of the property of a Guarantor as an entirety or
substantially as an entirety, to a corporation other than the Company (whether
or not affiliated with the Guarantor) authorized to acquire and operate the
same; provided, however,
that such transaction meets all of the following requirements:  (i) either:  (a) such Guarantor is the surviving
corporation; or (b) the Person formed by or surviving any such
consolidation or merger (if other than such Guarantor) or to which such sale,
assignment, transfer, conveyance or other disposition shall have been made is a
corporation organized or existing under the laws of the United States, any
political subdivision thereof, any state thereof or the District of Columbia or
the jurisdiction in which such Guarantor is organized and under the laws of
which it is existing; (ii) the Person formed by or surviving any such
consolidation or merger (if other than such Guarantor), or the Person to which
such sale, assignment, transfer, conveyance or other disposition shall have
been made, assumes all the obligations of such Guarantor under the Note
Guarantees and this Indenture, as applicable, pursuant to a supplemental
indenture reasonably satisfactory in form to the Trustee; and
(iii) immediately after such transaction no Default or Event of Default
exists.  In case of any such
consolidation, merger, sale or conveyance and upon the assumption by the
successor corporation, by supplemental indenture, executed and delivered to the
Trustee and satisfactory in form to the Trustee, of the Note Guarantees
endorsed upon the Notes and the due and punctual performance of all of the
covenants and conditions of this Indenture to be performed by the Guarantor,
such successor corporation shall succeed to and be substituted for the
Guarantor with the same effect as if it had been named herein as a
Guarantor.  Such successor corporation
thereupon may cause to be signed any or all of the Note Guarantees to be
endorsed upon all of the Notes issuable hereunder which theretofore shall not
have been signed by the Company and delivered to the Trustee.  All the Note Guarantees so issued shall in
all respects have the same legal rank and benefit under this Indenture as the
Note Guarantees theretofore and thereafter issued in accordance with the terms
of this Indenture as though all of such Note Guarantees had been issued at the
date of the execution hereof. 
Notwithstanding anything herein to the contrary, the foregoing
conditions shall not apply to a Guarantor which is a Subsidiary of the Company
in connection with a transaction as a result of which such Guarantor will be
released from its Note Guarantee as provided in Section 10.05 hereof.


 


SECTION 10.05.       Releases.


 


Concurrently
with any sale of assets (including, if applicable, all of the capital stock of
any Guarantor), any Liens in favor of the Collateral Agent in the assets sold
thereby 


 


100

















 


shall
be released; provided that in the event of an
Asset Sale, the Net Proceeds from such sale or other disposition are treated in
accordance with the provisions of Section 4.07 hereof.


 


The
Note Guarantee or the obligations under Section 10.04 hereof of a
Guarantor that is a subsidiary will be automatically and unconditionally
released:


 


(a)           in connection with any sale
or other disposition of all or substantially all of the assets of that
Guarantor (including by way of merger or consolidation), if the Net Proceeds of
that sale or other disposition are applied in accordance with Section 4.07
hereof;


 


(b)           in connection with any sale
of all of the Capital Stock of a Guarantor, if the Net Proceeds of that sale
are applied in accordance with Section 4.07 hereof;


 


(c)           upon the designation of such
Guarantor as an Unrestricted Subsidiary in compliance with Section 4.16 of
this Indenture; and


 


(d)           in connection with a Legal
Defeasence or Covenant Defeasance of this Indenture under Article 8 hereof
or upon satisfaction and discharge of this Indenture.


 


Upon
delivery by the Company to the Trustee of an Officers’ Certificate to the
effect that such sale or other disposition was made by the Company in
accordance with the provisions of this Indenture, including without limitation Section 4.07
hereof, the Trustee shall execute any documents reasonably required in order to
evidence the release of any Guarantor from its obligations under its Note
Guarantees.  Any Guarantor not released
from its obligations under its Note Guarantee shall remain liable for the full
amount of principal of, premium and interest on the Notes and for the other
obligations of any Guarantor under this Indenture as provided in this Article 10.


 


SECTION 10.06.       “Trustee” to Include Paying
Agent.


 


In
case at any time any Paying Agent other than the Trustee shall have been
appointed by the Company and be then acting hereunder, the term “Trustee” as
used in this Article 10 shall in such case (unless the context shall
otherwise require) be construed as extending to and including such Paying Agent
within its meaning as fully and for all intents and purposes as if such Paying
Agent were named in this Article 10 in place of the Trustee.


 


ARTICLE 11


 


SATISFACTION AND DISCHARGE


 


SECTION 11.01.       Satisfaction and Discharge.


 


This
Indenture, the Security Documents, and the Note Guarantees shall upon the
request of the Company cease to be of further effect (except as to surviving
rights of registration of transfer or exchange of Notes herein expressly
provided for, the Company’s obligations under Section 7.07 hereof, and the
Trustee’s and the Paying Agent’s obligations under Section 11.02 


 


101

















 


hereof)
and the Trustee, at the expense of the Company, shall execute proper
instruments acknowledging satisfaction and discharge of this Indenture, the
Security Documents, and the Note Guarantees when


 


(a)           either


 


(i)            all outstanding Notes
theretofore authenticated and delivered (other than (A) Notes which have
been destroyed, lost or stolen and which have been replaced or paid as provided
in Section 2.07 and (B) Notes for whose payment money has been
deposited in trust with the Trustee or any Paying Agent and thereafter paid to
the Company or discharged from such trust) have been delivered to the Trustee
for cancellation; or


 


(ii)           all such Notes not
theretofore delivered to the Trustee for cancellation


 


(A)          have become due and payable;


 


(B)           shall become due and payable
at their Stated Maturity within one year; or


 


(C)           are to be called for
redemption within one year under irrevocable arrangements satisfactory to the
Trustee for the giving of notice of redemption by the Trustee in the name and
at the expense of the Company,


 


and
the Company, in the case of clause (A), (B) or (C) above, has
irrevocably deposited or caused to be deposited with the Trustee as trust funds
in trust for such purpose money or Government Securities in an amount
sufficient to pay and discharge the entire indebtedness of such Notes not
theretofore delivered to the Trustee for cancellation, for principal (and
premium, if any) and interest, if any, to the date of such deposit (in the case
of Notes which have become due and payable) or the Stated Maturity or
redemption date;


 


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


 


(c)           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, the Company’s obligations in
Sections 2.03, 2.04, 2.06, 2.07, 2.11, 7.07, 7.08, and 13.02, 13.03 and 13.04,
and the Trustee’s and Paying Agent’s obligations in Section 11.02 shall
survive until the Notes are no longer outstanding.  Thereafter, only the Company’s obligations in
Section 7.07 shall survive.


 


In
order to have money available on a payment date to pay principal (and premium,
if any, on) or interest on the Notes, the Government Securities shall be
payable as to principal (and premium, if any) or interest at least one Business
Day before such payment date in 


 


102

















 


such
amounts as shall provide the necessary money. 
Government Securities shall not be callable at the Company’s option.


 


SECTION 11.02.       Application of Trust.


 


All
money deposited with the Trustee pursuant to Section 11.01 shall be held
in trust and, at the written direction of the Company, be invested prior to
maturity in U.S. Government Obligations, and applied by the Trustee 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 for the payment of which money has been deposited with the Trustee;
but such money need not be segregated from other funds except to the extent
required by law.


 


ARTICLE 12


 


SECURITY


 


SECTION 12.01.       Security Documents.


 


In
order to secure the due and punctual payment of the Second Lien Obligations,
the Company, the Guarantors, the Collateral Agent and the other parties thereto
have simultaneously with the execution of this Indenture entered into or, in
accordance with the provisions of Section 4.13, Section 4.19 and this
Article 12, will enter into the Security Documents.  In the event of a conflict between the terms
of this Indenture and the Intercreditor Agreement, the Intercreditor Agreement
shall control.


 


SECTION 12.02.       Recording, Registration and
Opinions.


 


(a)           The Company and the
Guarantors will not be required to comply with all or any portion of Section 314(d) of
the TIA if they determine, in good faith based on advice of counsel, that under
the terms of that section and/or any interpretation or guidance of the SEC and
its staff as to the meaning thereof, including “no action letters” or exemptive
orders, all or any portion of Section 314(d) of the TIA is
inapplicable to the released Collateral. 
For the avoidance of doubt, if this Indenture is not qualified under the
TIA, the Company shall not be required to comply with § 314(d) of the
TIA.  Following qualification of the
Indenture pursuant to the TIA, the Company shall comply with TIA Section 313(b),
if applicable.


 


(b)           Any release of Collateral
permitted or required by Section 12.03 hereof or the Security Documents
will be deemed not to impair the Liens under this Indenture and the Security
Documents in contravention thereof and any Person that is required to deliver a
certificate or opinion pursuant to Section 314(d) of the TIA or
otherwise under this Indenture or the Security Documents, shall be entitled to
rely upon the foregoing as a basis for delivery of such certificate or
opinion.  The Trustee may, to the extent
permitted by Sections 7.01 and 7.02 hereof, accept as conclusive evidence of
compliance with the foregoing provisions the appropriate statements contained
in such documents and opinion.


 


103














 


SECTION 12.03.       Releases of Collateral.


 


The Liens securing the Notes and the Note Guarantees
will, automatically and without the need for any further action by any Person,
be released:


 


(a)           in whole or in part, with the consent of the requisite
Holders in accordance with Article 9, including consents obtained in
connection with a tender offer or exchange offer for, or purchase of, Notes:


 


(b)           in whole, upon:


 


(i)            discharge of this Indenture under Section 11.01
hereof;


 


(ii)           a Legal Defeasance or Covenant Defeasance of this
Indenture under Article 8 hereof; or


 


(iii)          payment in full of outstanding principal, accrued and
unpaid interest and all other Obligations on the Notes issued under this
Indenture;


 


(c)           in part, as to any asset constituting Collateral


 


(i)            that is sold or otherwise disposed of by the Company or
any of the Guarantors (other than any such sale to the Company or a Guarantor)
in a transaction permitted under Section 4.07 and the Security Documents
(to the extent of the interest sold or disposed of) or otherwise permitted by
this Indenture and the Security Documents, if all other Liens on that asset
securing the First Lien Obligations and any Permitted Additional Pari Passu
Obligations then secured by that asset are released;


 


(ii)           that is cash withdrawn from deposit accounts or securities
accounts for any purpose not prohibited under this Indenture or the Security
Documents;


 


(iii)          that is Capital Stock of a Subsidiary of the Parent Company
to the extent necessary for such Subsidiary not to be subject to any
requirement pursuant to Rule 3-16 or Rule 3-10 of Regulation S-X
under the Exchange Act, due to the fact that such Subsidiary’s Capital Stock
secures the Notes or the Note Guarantees, to file separate financial statements
with the SEC (or any other governmental agency);


 


(iv)          that is used to make a Restricted Payment or Permitted
Investment permitted by this Indenture;


 


(v)           that becomes Excluded Property (as defined in the Security
Agreement) or Excluded Collateral (as defined in the Pledge Agreement); or


 


(vi)          that is otherwise released in accordance with, and as
expressly provided for in accordance with, this Indenture or the Security
Documents.


 


104

















 


SECTION 12.04.       Form and Sufficiency of Release.


 


In
the event that either the Company or any Guarantor has sold, exchanged, or
otherwise disposed of or proposes to sell, exchange or otherwise dispose of any
portion of the Collateral that, under the terms of this Indenture, may be sold,
exchanged or otherwise disposed of by the Company or any Guarantor, and the
Company or such Guarantor requests the Trustee to furnish a written disclaimer,
release or quitclaim of any interest in such property under this Indenture, the
applicable Note Guarantee and the Security Documents, upon receipt of an
Officers’ Certificate and Opinion of Counsel to the effect that such release
complies with Section 12.03 and specifying the provision in Section 12.03
pursuant to which such release is being made (upon which the Trustee may
exclusively and conclusively rely), the Trustee shall execute, acknowledge and
deliver to the Company or such Guarantor (or instruct the Collateral Agent to
do the same) such an instrument in the form provided by the Company, and
providing for release without recourse and shall take such other action as the
Company or such Guarantor may reasonably request and as necessary to effect
such release at the expense of the Company and the Guarantors.  Before executing, acknowledging or delivering
any such instrument, the Trustee shall be furnished with an Officers’
Certificate and an Opinion of Counsel (on which the Trustee shall be entitled
to conclusively and exclusively rely) each stating that such release is
authorized and permitted by the terms hereof and the Security Documents and
that all conditions precedent with respect to such release have been complied
with.


 


SECTION 12.05.       Possession and Use of Collateral.


 


Subject
to the provisions of the Security Documents, the Company and the Guarantors shall
have the right to remain in possession and retain exclusive control of and to
exercise all rights with respect to the Collateral (other than monies or U.S.
government obligations deposited pursuant to Article 8, and other than as
set forth in the Security Documents and this Indenture), to operate, manage,
develop, lease, use, consume and enjoy the Collateral (other than monies and
U.S. government obligations deposited pursuant to Article 8 and other than
as set forth in the Security Documents and this Indenture), to alter or repair
any Collateral so long as such alterations and repairs do not impair the Lien
of the Security Documents thereon, and to collect, receive, use, invest and
dispose of the reversions, remainders, interest, rents, lease payments, issues,
profits, revenues, proceeds and other income thereof.


 


SECTION 12.06.       Purchaser Protected.


 


No
purchaser or grantee of any property or rights purporting to be released shall
be bound to ascertain the authority of the Trustee to execute the release or to
inquire as to the existence of any conditions herein prescribed for the
exercise of such authority so long as the conditions set forth in Section 12.04
have been satisfied.


 


SECTION 12.07.       Authorization of Actions to Be Taken
by the Collateral Agent Under the Security Documents.


 


In
acting hereunder and under the Security Documents, the Holders, the Company and
the Guarantors agree that the Collateral Agent shall be entitled to the rights,
privileges, protections, 


 


105

















 


immunities,
indemnities and benefits provided to the Trustee hereunder as if such were
provided to the Collateral Agent. 
Furthermore, each Holder of a Note, by accepting such Note, appoints
U.S. Bank National Association as its collateral agent, and consents to the
terms of and authorizes and directs the Trustee (in each of its capacities) and
the Collateral Agent to enter into and perform the Security Documents in each
of its capacities thereunder.


 


SECTION 12.08.       Authorization of Receipt of Funds by
the Trustee Under the Security Agreement.


 


Subject
to the terms of the Intercreditor Agreement, the Trustee is authorized to
receive any funds for the benefit of Holders distributed under the Security
Documents to the Collateral Agent, and to apply such funds as provided in this
Indenture and the Security Documents.


 


SECTION 12.09.       Powers Exercisable by Receiver or
Collateral Agent.


 


In
case any Collateral shall be in the possession of a receiver or trustee,
lawfully appointed, the powers conferred in this Article 12 upon the
Company or any Guarantor, as applicable, with respect to the release, sale or
other disposition of such property may be exercised by such receiver or
trustee, and an instrument signed by such receiver or trustee shall be deemed
the equivalent of any similar instrument of the Company or any Guarantor, as
applicable, or of any officer or officers thereof required by the provisions of
this Article 12.


 


SECTION 12.10.       Appointment and Authorization of U.S.
Bank National Association as Collateral Agent.


 


(a)           U.S. Bank National Association is hereby designated and
appointed as the Collateral Agent of the Secured Parties under the Security
Documents, and is authorized as the Collateral Agent for the Secured Parties to
execute and enter into each of the Security Documents and all other instruments
relating to the Security Documents and (i) to take action and exercise
such powers as are required or permitted hereunder and under the Security
Documents and all instruments relating hereto and thereto and (ii) to
exercise such powers and perform such duties as are in each case, delegated to
the Collateral Agent by the terms hereof and thereof together with such other
powers as are reasonably incidental hereto and thereto.


 


(b)           Notwithstanding any provision to the contrary elsewhere in
this Indenture or the Security Documents, the Collateral Agent shall not have
any duties or responsibilities except those expressly set forth herein or
therein or any fiduciary relationship with any other Secured Party, and no
implied covenants, functions, responsibilities, duties, obligations or
liabilities shall be read into this Indenture or any Security Document or
otherwise exist against the Collateral Agent.


 


(c)           The Collateral Agent may consult with counsel of its
selection and the advice or opinion of such counsel as to matters of law shall
be full and complete authorization and protection from liability in respect of
any action taken, omitted or suffered by it hereunder or under the Security
Documents in good faith and in accordance with the advice or opinion of such
counsel.


 


106

















 


ARTICLE 13


 


MISCELLANEOUS


 


SECTION 13.01.       Trust Indenture Act Controls.


 


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


 


SECTION 13.02.       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), telecopier or overnight
air courier guaranteeing next day delivery, to the others’ address:


 


If to the Company or any
Guarantor:


 


SquareTwo Financial Corporation

4340 S. Monaco, Second Floor

Denver, CO  80237

Telecopier No.:  303-713-2509

Attention:  General Counsel


 


With a copy to:


 


Hogan & Hartson LLP

One Tabor Center, Suite 1500

1200 Seventeenth Street

Denver, CO  80202

Telecopier No.:  303-899-7333

Attention:  George Hagerty and Rob Mintz


 


If to the Trustee:


 


U.S.
Bank National Association 

Corporate Trust Services

950 17th Street 

Denver, CO  80202

Attention:  SquareTwo Administrator


 


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


 


All
notices and communications (other than those sent to Holders) shall be deemed
to have been duly given:  at the time
delivered by hand, if personally delivered; five Business Days after being deposited
in the mail, postage prepaid, if mailed; when receipt acknowledged, 


 


107

















 


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 Section 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.


 


The
Trustee agrees to accept and act upon instruction or directions pursuant to
this Indenture sent by unsecured e-mail, facsimile transmission or other
similar unsecured electronic methods; provided, however, that, the Trustee shall have received an incumbency
certificate listing persons designated to give such instructions or directions
and containing specimen signatures of such designated persons, which such
incumbency certificate shall be amended and replaced on or before delivery of
any such instructions or directions whenever a person is to be added or deleted
from the listing.  If the party elects to
give the Trustee e-mail or facsimile instructions (or instructions by a similar
electronic method) and the Trustee in its discretion elects to act upon such
instructions, the Trustee’s understanding of such instructions shall be deemed
controlling.  The Trustee shall not be
liable for any losses, costs or expenses arising directly or indirectly from
the Trustee’s reliance upon and compliance with such instructions
notwithstanding such instructions conflict or are inconsistent with a
subsequent written instruction.  The
party providing electronic instructions agrees to assume all risks arising out
of the use of such electronic methods to submit instructions and directions to
the Trustee, including the risk of the Trustee acting on unauthorized
instructions, and the risk or interception and misuse by third parties.


 


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


 


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


 


SECTION 13.04.       Certificate and Opinion as to
Conditions Precedent.


 


Upon
any request or application by the Company or any Guarantor to the Trustee to
take any action under this Indenture (other than the initial issuance of the
Notes), the Company or such Guarantors shall furnish to the Trustee upon
request unless otherwise required pursuant to the terms hereof:


 


108

















 


(a)           an Officers’ Certificate (which shall include the
statements set forth in Section 13.05 hereof) stating that, in the opinion
of the signers, all conditions precedent and covenants, if any, provided for in
this Indenture relating to the proposed action have been satisfied; and


 


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


 


SECTION 13.05.       Statements Required in Certificate or
Opinion.


 


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


 


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


 


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


 


(c)           a statement that, in the opinion of such Person, he or she
has made such examination or investigation as is necessary to enable him or her
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 13.06.       Rules by Trustee and Agents.


 


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


 


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


 


No
past, present or future director, manager, officer, employee, incorporator or
stockholder of the Company or any Guarantor, as such, shall have any liability
for any obligations of the Company or the Guarantors under the Notes, this Indenture,
the Note Guarantees, or for any claim based on, in respect of, or by reason of,
such obligations or their creation, or his or her status as director, manager,
officer, employee, incorporator or stockholder. 
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.  The waiver may not be effective to waive
liabilities under the federal securities laws.


 


109

















 


SECTION 13.08.       Governing Law.


 


THE
INTERNAL LAW OF THE STATE OF NEW YORK SHALL GOVERN AND BE USED TO CONSTRUE THIS
INDENTURE, THE NOTES AND THE NOTE GUARANTEES. 
EACH PARTY HERETO EXPRESSLY CONSENTS TO THE JURISDICTION AND VENUE OF
EACH COURT OF COMPETENT JURISDICTION LOCATED IN THE STATE OF NEW YORK FOR ALL
PURPOSES, WAIVES ANY OBJECTION TO SUCH JURISDICTION AND SUCH VENUE, AND SHALL
NOT ASSERT ANY DEFENSE BASED ON LACK OF JURISDICTION OR VENUE OR BASED UPON
FORUM NON CONVENIENS.  ANY JUDICIAL PROCEEDING
BETWEEN THE PARTIES HERETO INVOLVING, DIRECTLY OR INDIRECTLY, ANY MATTER OR
CLAIM ARISING OUT OF, RELATED TO OR CONNECTED WITH THIS INDENTURE SHALL BE
BROUGHT ONLY IN A COURT LOCATED IN THE COUNTY OF NEW YORK, STATE OF NEW YORK.


 


SECTION 13.09.       No Adverse Interpretation of Other
Agreements.


 


This
Indenture may not be used to interpret any other indenture, loan or debt
agreement of the Company or its Subsidiaries or of any other Person.  Any such indenture, loan or debt agreement
may not be used to interpret this Indenture or the Note Guarantees.


 


SECTION 13.10.       Successors.


 


All
agreements of the Company and the Guarantors in this Indenture, the Notes and
the Note Guarantees shall bind their respective successors.  All agreements of the Trustee in this
Indenture shall bind its successors.


 


SECTION 13.11.       Severability.


 


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


 


SECTION 13.12.       Counterpart Originals.


 


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


 


SECTION 13.13.       Table of Contents, Headings, etc.


 


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


 


110

















 


SECTION 13.14.       Record Date for Voting by or Consent
of Holders.


 


In
any instance in which the Holders shall be entitled to vote or consent to any
matter, the record date for such vote or consent shall be the date specified in
TIA Section 316(c), unless otherwise provided herein.


 


SECTION 13.15.       Intercreditor Agreement


 


The
Trustee, the Collateral Agent and the Holders are bound by the terms of the
Intercreditor Agreement and the other Security Documents.


 


SECTION 13.16.       Waiver of Jury Trial


 


EACH
OF THE COMPANY, THE GUARANTORS AND THE TRUSTEE HEREBY IRREVOCABLY WAIVES, TO
THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY AND ALL RIGHT TO TRIAL BY
JURY IN ANY LEGAL PROCEEDING ARISING OUT OF OR RELATING TO THIS INDENTURE, THE
NOTES OR THE TRANSACTION CONTEMPLATED HEREBY.


 


[Signatures on following page]


 


111

















 


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


 


	
   

  	
  SQUARETWO
  FINANCIAL CORPORATION

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  Paul A. Larkins

  
	
   

  	
   

  	
  Name:
  Paul A. Larkins

  
	
   

  	
   

  	
  Title:
  President and Chief Executive Officer

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  HEALTHCARE
  FUNDING SOLUTIONS, LLC

  
	
   

  	
  CACH,
  LLC

  
	
   

  	
  CACV
  OF COLORADO, LLC

  
	
   

  	
  ORSA,
  LLC

  
	
   

  	
  CANDEO,
  LLC

  
	
   

  	
  AUTUS,
  LLC

  
	
   

  	
  CACH
  OF NJ, LLC

  
	
   

  	
  CACV
  OF NEW JERSEY, LLC

  
	
   

  	
  COLLECT
  AMERICA OF CANADA, LLC

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  Paul A. Larkins

  
	
   

  	
   

  	
  Name:
  Paul A. Larkins

  
	
   

  	
   

  	
  Title:
  Manager

  
	
   

  	
   

  
	
   

  	
  SQUARETWO
  FINANCIAL COMMERCIAL FUNDING CORPORATION

  
	
   

  	
  REFINANCE
  AMERICA, LTD.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  Thomas G. Good

  
	
   

  	
   

  	
  Name:
  Thomas G. Good

  
	
   

  	
   

  	
  Title:
  Secretary

  



 

















 


	
   

  	
  U.S.
  BANK NATIONAL ASSOCIATION, as Trustee

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  Robert J. Dunn

  
	
   

  	
   

  	
  Name:
  Robert J. Dunn

  
	
   

  	
   

  	
  Title:
  Vice President

  



 


2














 


SCHEDULE A


 


SCHEDULE OF GUARANTORS


 


SquareTwo
Financial Commercial Funding Corporation


Healthcare
Funding Solutions, LLC


CACH,
LLC


CACV
of Colorado, LLC


ReFinance
America, Ltd.


Orsa,
LLC


Candeo,
LLC


Autus,
LLC


CACH
of NJ, LLC


CACV
of New Jersey, LLC


Collect
America of Canada, LLC


 

















 


EXHIBIT A


 


(Face of Note)


 


CUSIP/CINS:  [     ](1)


 


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


 


THE
SECURITY (OR ITS PREDECESSOR) EVIDENCED HEREBY WAS ORIGINALLY ISSUED IN A
TRANSACTION EXEMPT FROM REGISTRATION UNDER SECTION 5 OF THE SECURITIES ACT
OF 1933, AS AMENDED (THE ‘‘SECURITIES ACT’’), AND THE SECURITY EVIDENCED HEREBY
MAY NOT BE OFFERED, SOLD OR OTHERWISE TRANSFERRED IN THE ABSENCE OF SUCH
REGISTRATION OR AN APPLICABLE EXEMPTION THEREFROM. EACH PURCHASER OF THE
SECURITY EVIDENCED HEREBY IS HEREBY NOTIFIED THAT THE SELLER MAY BE
RELYING ON THE EXEMPTION FROM THE PROVISIONS OF SECTION 5 OF THE
SECURITIES ACT PROVIDED BY RULE 144A THEREUNDER. THE HOLDER OF THE SECURITY
EVIDENCED HEREBY AGREES FOR THE BENEFIT OF THE COMPANY THAT (A) SUCH
SECURITY MAY BE RESOLD, PLEDGED OR OTHERWISE TRANSFERRED, ONLY (1)(a) INSIDE
THE U.S. TO A PERSON WHO THE SELLER REASONABLY BELIEVES IS A QUALIFIED
INSTITUTIONAL BUYER (AS DEFINED IN RULE 144A UNDER THE SECURITIES ACT)
PURCHASING FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF A QUALIFIED INSTITUTIONAL
BUYER IN A TRANSACTION MEETING THE REQUIREMENTS OF RULE 144A UNDER THE
SECURITIES ACT, (b) OUTSIDE THE U.S. TO A FOREIGN PERSON IN A TRANSACTION
MEETING THE REQUIREMENTS OF RULE 903 OR RULE 904 OF REGULATION S UNDER THE
SECURITIES ACT, (c) PURSUANT TO AN EXEMPTION FROM REGISTRATION UNDER THE
SECURITIES ACT PROVIDED BY RULE 144 THEREUNDER (IF APPLICABLE) OR (d) IN
ACCORDANCE WITH ANOTHER


 






(1)                                  For 144A Note,
enter 144A CUSIP number; for Reg S Note, enter Reg S CUSIP number.


 


A-1

















 


EXEMPTION
FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT (AND BASED UPON AN
OPINION OF COUNSEL ACCEPTABLE TO THE COMPANY IF THE COMPANY SO REQUESTS), (2) TO
THE COMPANY OR (3) PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT AND, IN
EACH CASE, IN ACCORDANCE WITH ANY APPLICABLE SECURITIES LAWS OF ANY STATE
OF THE U.S. OR ANY OTHER APPLICABLE JURISDICTION AND (B) THE HOLDER WILL,
AND EACH SUBSEQUENT HOLDER IS REQUIRED TO, NOTIFY ANY PURCHASER OF THE SECURITY
EVIDENCED HEREBY OF THE RESALE RESTRICTIONS SET FORTH IN CLAUSE (A) ABOVE.
NO REPRESENTATION CAN BE MADE AS TO THE AVAILABILITY OF THE EXEMPTION PROVIDED
BY RULE 144 FOR RESALE OF THE SECURITY EVIDENCED HEREBY.


 


A-2

















 


11.625% Senior Second Lien Notes due 2017


 


	
  No. [  ]

  	
  $[                     ]

  



 


SQUARETWO FINANCIAL CORPORATION


 


promises
to pay to Cede & Co.


 


or
registered assigns,


 


the
principal sum of [                                                                                ]


 


on
April 1, 2017.


 


Interest
Payment Dates:  April 1 and October 1


 


Record
Dates:  March 15 and September 15


 


Dated:  April 7, 2010


 


A-3

















 


	
   

  	
  SQUARETWO
  FINANCIAL CORPORATION

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  



 


A-4

















 


This
is one of the Notes referred to in

the within-mentioned Indenture:


 


	
  U.S.
  BANK NATIONAL ASSOCIATION,

  	
   

  
	
  as Trustee

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
  By:

  	
   

  	
   

  
	
   

  	
  Authorized
  Signatory

  	
   

  



 


A-5

















 


(Back of Note)


 


11.625% Senior Second Lien Notes due 2017


 


Capitalized
terms used herein shall have the meanings assigned to them in the Indenture
dated as of April 7, 2010, among SquareTwo Financial Corporation (the “Company”),
the Guarantors party thereto and the Trustee (as amended and supplemented from
time to time, the “Indenture”) unless otherwise indicated.


 


1.             Interest.  SquareTwo Financial Corporation, a Delaware
corporation (the “Company”), promises to pay interest on the principal amount
of this Note at 11.625% per annum from April 7, 2010 until maturity.  The Company will pay interest and Additional
Interest, if any, semi-annually in arrears on each April 1 and October 1
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
original 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 October 1,
2010.  The Company shall pay interest
(including post-petition interest in any proceeding under any Bankruptcy Law)
on overdue principal and premium, if any, from time to time at the interest
rate on this Note; it shall pay interest (including post-petition interest in
any proceeding under any Bankruptcy Law) on overdue installments of interest
and Additional Interest (without regard to any applicable grace periods) from
time to time on demand at the same rate to the extent lawful.  Interest will be computed on the basis of a
360-day year of twelve 30-day months.


 


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


 


Any
payments of principal of and interest on this Note prior to Stated Maturity
shall be binding upon all future Holders of this Note and of any Note issued
upon the registration 


 


A-6

















 


of
transfer hereof or in exchange hereof or in lieu hereof, whether or not noted
hereon.  The amount due and payable at
the maturity of this Note shall be payable only upon presentation and surrender
of this Note at an office of the Trustee or the Trustee’s agent appointed for
such purposes.


 


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


 


4.             Indenture.  The Company issued the Notes under an
Indenture dated as of April 7, 2010 (the “Indenture”) among the Company,
the Guarantors and the Trustee.  This
Note is one of a duly authorized issue of notes of the Company designated as
its 11.625% Senior Second Lien Notes due 2017, which may be issued under the
Indenture.  The Company shall be entitled
to issue Additional Notes pursuant to the Indenture.  The Notes and any Additional Notes issued in
accordance with the Indenture are treated as a single class of securities under
the Indenture unless otherwise specified. 
The terms of the Notes include those stated in the Indenture and those
made part of the Indenture by reference to the Trust Indenture Act of 1939, as
amended (15 U.S. Code Sections 77aaa-77bbbb). 
The Notes are subject to all such terms, and Holders are referred to the
Indenture and such Act for a statement of such terms.  To the extent any provision of this Note
conflicts with the express provisions of the Indenture, the provisions of the
Indenture shall govern and be controlling. 
The Notes are senior secured obligations of the Company.


 


5.             Optional Redemption.


 


(a)           The Notes may be redeemed, in whole
or in part, at any time prior to April 1, 2014, at the option of the
Company upon not less than 30 nor more than 60 days’ prior notice mailed by
first-class mail to each Holder’s registered address, at a redemption price
equal to 100% of the principal amount of the Notes redeemed plus the Applicable
Premium as of, and accrued and unpaid interest, if any, to but not including,
the applicable redemption date (subject to the right of holders of record on
the relevant record date to receive interest due on the relevant Interest
Payment Date)


 


(b)           Except as set forth in clauses (a) and
(b) of this Paragraph 5, the Company shall not have the option to redeem
the Notes pursuant to this Paragraph 5 prior to April 1, 2014.  Thereafter, the Company may redeem all or a
part of the Notes (which includes Additional Notes, if any) upon not less than
30 nor more than 60 days’ prior notice mailed to each Holder’s registered
address, at the redemption prices (expressed as percentages of principal
amount) set forth below plus accrued and unpaid interest thereon, if any, to,
but not including, the applicable redemption date (subject to the right of
Holders of record on the relevant regular record date to receive interest due
on an Interest Payment Date), if redeemed during the twelve-month period
beginning on April 1 of the years indicated below:


 


A-7

















 


	
  YEAR

  	
   

  	
  PERCENTAGE

  	
   

  
	
  2014

  	
   

  	
  105.813

  	
  %

  
	
   

  	
   

  	
   

  	
   

  
	
  2015

  	
   

  	
  102.906

  	
  %

  
	
   

  	
   

  	
   

  	
   

  
	
  2016 and thereafter

  	
   

  	
  100.000

  	
  %

  



 


(c)           Notwithstanding the provisions of
clauses (a) and (b) of this Paragraph 5, at any time prior to April 1,
2013, the Company may at its option on any one or more occasions redeem the
Notes (including Additional Notes, if any) in an aggregate principal amount not
to exceed 35% of the aggregate principal amount of the Notes (including
Additional Notes, if any) at a redemption price of 111.625% of the principal
amount thereof, plus accrued and unpaid interest thereon, if any, to, but not
including, the applicable redemption date (subject to the right of Holders of
record on the relevant record date to receive interest due on the relevant
Interest Payment Date), with the net cash proceeds of one or more Equity
Offerings; provided that:


 


(i)            at least 65% of such aggregate
principal amount of the Notes originally issued remains outstanding immediately
after the occurrence of such redemption (other than Notes held directly or indirectly
by the Parent Company, the Company and its Subsidiaries); and


 


(ii)           each such redemption must occur
within 90 days of the date of the closing of any such Equity Offering.


 


(d)             Any such
redemption pursuant to this Paragraph 5 shall be made pursuant to the
applicable provisions of Article 3 of the Indenture.


 


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


 


7.             Repurchase At Option of Holder.


 


(a)           If there is a Change of Control, each
Holder of Notes will have the right to require the Company to repurchase all or
any part (equal to $2,000 or a $1,000 integral multiple thereof (provided, that no Notes will be purchased in part if such
Note would have a remaining principal amount of less than $2,000)) of each
Holder’s Notes (the “Change of Control Offer”) at a purchase price equal to
101% of the aggregate principal amount thereof plus accrued and unpaid interest
and Additional Interest thereon, if any, to the date of purchase (the “Change
of Control Payment”).  Within 30 days
following any Change of Control, the Company shall mail a notice to each Holder
setting forth the procedures governing the Change of Control Offer as required
by the Indenture.


 


(b)           If the Company or any of its
Restricted Subsidiaries consummate an Asset Sale offer, the Company shall, if
required by Section 4.07 of the Indenture, promptly commence an offer to
all Holders of Notes (an “Offer”) pursuant to Section 3.09 of the
Indenture to purchase 


 


A-8

















 


the
maximum principal amount of Notes that may be purchased out of the Net Proceeds
at an offer price in cash in an amount equal to 100% of the principal amount
thereof plus accrued and unpaid interest and Additional Interest thereon, if
any, to the date of purchase in accordance with the procedures set forth in the
Indenture.  If the aggregate principal
amount of Notes surrendered by Holders exceeds the Offer Amount, the Company
shall select the Notes to be purchased on a pro rata basis (with such
adjustments as may be deemed appropriate by the Company so that only Notes in
denominations of $2,000, or $1,000 integral multiples thereof, shall be
purchased).  Holders of Notes that are
the subject of an offer to purchase will receive an Offer from the Company at
least twenty Business Days prior to any related purchase date and may elect to
have such Notes purchased by completing the form entitled “Option of Holder to
Elect Purchase” on the reverse of the Notes.


 


8.             Notice of Redemption.  Notice of redemption will be mailed at least
30 days but not more than 60 days before the redemption date to each Holder
whose Notes are to be redeemed by first class mail to its registered address.  Notes in denominations larger than $2,000 may
be redeemed in part but only in whole multiples of $1,000, unless all of the
Notes held by a Holder are to be redeemed. 
On and after the redemption date, interest shall cease to accrue on
Notes or portions thereof called for redemption.


 


9.             Denominations, Transfer,
Exchange.  The Notes are in
registered form without coupons in denominations of $2,000 and integral
multiples of $1,000.  The transfer of
Notes may be registered and Notes may be exchanged as provided in the
Indenture.  The Registrar and the Trustee
may require a Holder, among other things, to furnish appropriate endorsements
and transfer documents and the Company may require a Holder to pay any taxes
and fees required by law or permitted by the Indenture.  The Company need not exchange or register the
transfer of any Note or portion of a Note selected for redemption, except for
the unredeemed portion of any Note being redeemed in part.  Also, it need not exchange or register the
transfer of any Notes for a period of 15 days before the mailing of a notice of
redemption or during the period between a record date and the corresponding
Interest Payment Date.


 


10.           Persons Deemed Owners.  The registered Holder of a Note may be
treated as its owner for all purposes.


 


11.           Amendment, Supplement and Waiver.  Subject to certain exceptions, the Indenture,
the Security Documents, the Note Guarantees and the Notes may be amended or
supplemented, and any existing default or compliance with any provision of the
Indenture, the Security Documents, the Note Guarantees and the Notes may be
waived, with the consent of the Holders of at least a majority in principal
amount of the then outstanding Notes. 
Without the consent of any Holder of a Note, the Indenture, the Security
Documents, the Note Guarantees, and the Notes may be amended or supplemented,
among other matters, 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 or a Guarantor’s obligations to
Holders of the Notes in case of a merger or consolidation, to make any change
that would provide any additional rights or benefits to the Holders of the
Notes or that does not adversely affect the legal rights under the Indenture of
any such Holder, or to comply with the requirements of the SEC in order to
effect or maintain the qualification of the Indenture under the TIA.


 


A-9














 


12.                                 Defaults and
Remedies.  Events of
Default include:  (i) default for 30
days in the payment when due of interest on or Additional Interest, 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 or any of
its Restricted Subsidiaries to comply with the provisions described under
Sections 4.06, 4.07 or 5.01 of the Indenture; provided, that in the case of Section 4.07,
such failure has not been cured within 30 days; (iv) failure by the
Company or any of its Restricted Subsidiaries to comply with any other
agreements in the Indenture for 60 days (or 90 days in the case of Section 4.18
of the Indenture) after notice to the Company by the Trustee or the Holders of
at least 25% in principal amount of the Notes then outstanding; (v) default
(after giving effect to any waivers, amendments, grace periods or extensions of
any maturity date) under any mortgage, indenture or instrument under which
there may be issued or by which there may be secured or evidenced any
Indebtedness for money borrowed by the Company or any of its Restricted
Subsidiaries (or the payment of which is guaranteed by the Company or any of
its Restricted Subsidiaries) whether such Indebtedness or Guarantee now exists,
or is created after the date of the Indenture, which default (a) is caused
by a failure to pay principal of or premium, if any, or interest on such
Indebtedness after the expiration of the grace period provided in such
Indebtedness (a “Payment Default”) or (b) results in the acceleration of
such Indebtedness prior to its express maturity; and (c) 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 $20.0 million or
more; (vi) the failure by the Company or any of its Restricted
Subsidiaries to pay final non-appealable judgments aggregating in excess of
$20.0 million (not covered by insurance policies or credit-worthy third party
indemnity under which the insurer or indemnifying party has not denied coverage
or liability, as applicable), which judgments are not paid, waived, discharged
or stayed within 60 days following entry of judgment; (vii) except as
permitted by the Indenture, any Note Guarantee of any Restricted Subsidiary
that is a Significant Subsidiary or of any group of Restricted Subsidiaries
that, taken together, would constitute a Significant Subsidiary, shall be held
in any judicial proceeding to be unenforceable or invalid or shall cease for
any reason to be in full force and effect or any Guarantor, or any Person
acting on behalf of any Guarantor, shall deny or disaffirm its obligations
under its Note Guarantee; (viii) certain events of bankruptcy or
insolvency with respect to the Company or any Restricted Subsidiary that is a
Significant Subsidiary, or any group of Restricted Subsidiaries that, taken as
a whole, would constitute a Significant Subsidiary; and (ix) (1) with
respect to any Collateral having a fair market value in excess of
$10.0 million, individually or in the aggregate, (a) any default or
breach by the Company or any Guarantor in the performance of its obligations
under the Security Documents or the Indenture which adversely affects in any
material respect the condition or value of the Collateral or the
enforceability, validity, perfection or priority of the Second Priority Liens,
taken as a whole, and continuance of such default or breach for a period of 60
days after written notice thereof by the Trustee or the Holders of 25% in
principal amount of the outstanding Notes, or (b) any security interest
created under the Security Documents or under the Indenture is declared invalid
or unenforceable by a court of competent jurisdiction; or (2) the Company
or any Guarantor asserts, in any pleading in any court of competent
jurisdiction, that any security interest in any Collateral is invalid or
unenforceable.  If any Event of Default
occurs and is continuing, the Trustee or the Holders of at least 25% in
principal amount of the then outstanding Notes may declare all the Notes to be
due and payable.  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 Restricted


 


A-10

















 


Subsidiary
constituting a Significant Subsidiary or any group of Restricted 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 a
majority in principal amount of the then outstanding Notes may direct the
Trustee in its exercise of any trust or power. 
The Trustee may withhold from Holders of the Notes notice of any
continuing Default or Event of Default (except a Default or Event of Default
relating to the payment of principal or interest) if it determines that
withholding notice is in their interest.


 


The
Holders of a majority in aggregate principal amount of the Notes then
outstanding by notice to the Trustee may on behalf of the Holders of all of the
Notes waive any existing Default or Event of Default and its consequences under
the Indenture except a continuing Default or Event of Default in the payment of
interest on, or the principal of, the Notes. 
The Company is required to deliver to the Trustee annually a statement
regarding compliance with the Indenture, and the Company is required upon
becoming aware of any Default or Event of Default, to deliver to the Trustee a
statement specifying such Default or Event of Default.


 


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


 


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


 


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


 


16.                                 Abbreviations.  Customary abbreviations may be used in the
name of a Holder or an assignee, such as: 
TEN COM (= tenants in common), TEN ENT (= tenants by the entireties), JT
TEN (= joint tenants with right of survivorship and not as tenants in common),
CUST (= Custodian), and U/G/M/A (= Uniform Gifts to Minors Act).


 


17.                                 Additional
Rights of Holders of Restricted Global Notes and Restricted Definitive Notes.  In addition to the rights provided to Holders
of Notes under the Indenture, Holders of Restricted Global Notes and Restricted
Definitive Notes shall have all the rights set forth in the Registration Rights
Agreement dated as of April 7, 2010, among the Company, the Guarantors and
the parties named on the signature pages thereof (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


 


A-11

















 


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:


 


SquareTwo
Financial Corporation

4340 S. Monaco, Second Floor

Denver, CO 80237

Telecopier No.:  303-713-2509

Attention:  General Counsel


 


A-12

















 


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:

  	
   

  
							






 


A-13

















 


OPTION OF HOLDER TO ELECT PURCHASE


 


If
you want to elect to have this Note purchased by the Company pursuant to Section 3.09
or 4.07 of the Indenture, check the box below:


 


o Section 3.09                 o Section 4.07


 


If
you want to elect to have only part of the Note purchased by the Company
pursuant to Section 3.09 or Section 4.07 of the Indenture, state the
amount you elect to have purchased:


 


$


 


	
  Date:

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Your
  Signature:

  	
   

  
	
   

  	
   

  	
   

  	
  (Sign
  exactly as your name

  
	
   

  	
   

  	
   

  	
  appears
  on the face of this Note)

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Tax Identification No.:

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Signature
  Guarantee:

  	
   

  
							



 


A-14

















 


SCHEDULE OF EXCHANGES OF INTERESTS IN THE GLOBAL NOTE


 


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


 


	
  Date of

  Exchange

  	
   

  	
  Amount of

  decrease in

  Principal Amount

  of this Global

  Note

  	
   

  	
  Amount of

  increase in

  Principal Amount

  of this Global

  Note

  	
   

  	
  Principal Amount

  of this Global

  Note following

  such decrease (or

  increase)

  	
   

  	
  Signature of

  authorized

  signatory of

  Trustee or Note

  Custodian

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  



 


A-15

















 


EXHIBIT B


 


FORM OF CERTIFICATE OF TRANSFER


 


SquareTwo
Financial Corporation


4340
S. Monaco, Second Floor


Denver,
CO 80237


Telecopier
No.: 303-713-2509


Attention:
General Counsel


 


U.S.
Bank National Association


Corporate
Trust Services


950
17th Street


Denver,
CO 80202


Attention:
SquareTwo Administrator


 


Re:
11.625% Senior Second Lien Notes due 2017


 


Reference
is hereby made to the Indenture, dated as of April 7, 2010 (the “Indenture”),
among SquareTwo Financial Corporation, as issuer (the “Company”), the
Guarantors (as defined therein) and U.S. Bank National Association, as trustee.
Capitalized terms used but not defined herein shall have the meanings given to
them in the Indenture.


 


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


 


[CHECK
ALL THAT APPLY]


 


1.                                       o  Check if Transferee will take delivery of a beneficial interest in the
144A Global Note or a Definitive Note Pursuant to Rule 144A. The
Transfer is being effected pursuant to and in accordance with Rule 144A
under the United States Securities Act of 1933, as amended (the “Securities Act”),
and, accordingly, the Transferor hereby further certifies that the beneficial
interest or Definitive Notes is being transferred to a Person that the
Transferor reasonably believed and believes is purchasing the beneficial
interest or Definitive Note for its own account, or for one or more accounts
with respect to which such Person exercises sole investment discretion, and
such person and each such account is a “qualified institutional buyer” within
the meaning of Rule 144A in a transaction meeting the requirements of Rule 144A
and such Transfer is in compliance with any applicable blue sky securities laws
of any state of the United States. Upon consummation of the proposed Transfer
in accordance with the terms of the Indenture, the transferred beneficial
interest or Definitive Note will be subject to the restrictions on transfer
enumerated in the Private Placement Legend printed on the 144A Global Note
and/or the Definitive Note and in the Indenture and the Securities Act.


 


B-1

















 


2.                                       o Check if Transferee will take delivery of a
beneficial interest in the Regulation S Global Note or a Definitive Note
pursuant to Regulation S. The Transfer is being effected
pursuant to and in accordance with Rule 903 or Rule 904 under the
Securities Act and, accordingly, the Transferor hereby further certifies that
(i) the Transfer is not being made to a person in the United States and
(x) at the time the buy order was originated, the Transferee was outside
the United States or such Transferor and any Person acting on its behalf reasonably
believed and believes that the Transferee was outside the United States or
(y) the transaction was executed in, on or through the facilities of a
designated offshore securities market and neither such Transferor nor any
Person acting on its behalf knows that the transaction was prearranged with a
buyer in the United States, (ii) no directed selling efforts have been
made in contravention of the requirements of Rule 903(b) or Rule 904(b) of
Regulation S under the Securities Act, (iii) the transaction is not part of
a plan or scheme to evade the registration requirements of the Securities Act,
and (iv) if the proposed transfer is being made prior to the expiration of
the Restricted Period, the transfer is not being made to a U.S. Person or for
the account or benefit of a U.S. Person. Upon consummation of the proposed
transfer in accordance with the terms of the Indenture, the transferred
beneficial interest or Definitive Note will be subject to the restrictions on
Transfer enumerated in the Private Placement Legend printed on the Regulation S
Global Note and/or the Definitive Note and in the Indenture and the Securities
Act.


 


3.                                       o Check and complete if Transferee will take
delivery of a beneficial interest in a Restricted Global Note or a Restricted
Definitive Note pursuant to any provision of the Securities Act other than
Rule 144A or Regulation S.  The Transfer is being
effected in compliance with the transfer restrictions applicable to beneficial
interests in Restricted Global Notes and Restricted Definitive Notes and
pursuant to and in accordance with the Securities Act and any applicable blue
sky securities laws of any State of the United States, and accordingly the
Transferor hereby further certifies that (check one):


 


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


 


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


 


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


 


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


 


B-2

















 


$250,000,
an Opinion of Counsel provided by the Transferor or the Transferee (a copy of which
the Transferor has attached to this certification and provided to the Company,
which has confirmed its acceptability), to the effect that such Transfer is in
compliance with the Securities Act. Upon consummation of the proposed Transfer
in accordance with the terms of the Indenture, the Definitive Note will be
subject to the restrictions on transfer enumerated in the Private Placement
Legend printed on the Definitive Notes and in the Indenture and the Securities
Act.


 


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


 


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


 


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


 


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


 


(d)                                 o  Check if Transfer is Pursuant to an Effective Registration Statement. Such
Transfer is being effected pursuant to an effective registration statement under
the Securities Act and in compliance with the prospectus delivery requirements
of the Securities Act


 


B-3

















 


and
pursuant to and in accordance with the Securities Act and any applicable blue
sky securities laws of any State of the United States.


 


B-4














 


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


 


	
   

  	
   

  
	
   

  	
  [Insert
  Name of Transferor]

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  
	
   

  	
   

  
	
   

  	
   

  
	
  Dated:                    ,    

  	
   

  



 


B-5

















 


ANNEX A TO CERTIFICATE OF TRANSFER


 


1.                                      The Transferor
owns and proposes to transfer the following:


 


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


 


(a)                                 o  a beneficial interest in the:


 


(i)                                     o  144A Global Note (CUSIP
        ), or


 


(ii)                                  o  Regulation S Global Note (CUSIP
        ), or


 


(b)                                 o  a Restricted Definitive Note.


 


2.                                      After the
Transfer the Transferee will hold:


 


[CHECK ONE]


 


(a)                                 o  a beneficial interest in the:


 


(i)                                     o  144A Global Note (CUSIP
        ), or


 


(ii)                                  o  Regulation S Global Note (CUSIP
        ), or


 


(iii)                               o  Unrestricted Global Note (CUSIP
        ); or


 


(b)                                 o  a Restricted Definitive Note; or


 


(c)                                  o  an Unrestricted Definitive Note.


 


in
accordance with the terms of the Indenture.


 


B-6

















 


EXHIBIT C


 


FORM OF CERTIFICATE OF EXCHANGE


 


SquareTwo
Financial Corporation

4340 S. Monaco, Second Floor

Denver, CO 80237

Telecopier No.:  303-713-2509

Attention:  General Counsel


 


U.S.
Bank National Association 

Corporate Trust Services

950 17th Street 

Denver, CO 80202

Attention:  SquareTwo Administrator


 


Re:  11.625% Senior Second Lien Notes due 2017


 


Reference
is hereby made to the Indenture, dated as of April 7, 2010 (the “Indenture”),
among SquareTwo Financial Corporation, as issuer (the “Company”), the Guarantors
(as defined therein) and U.S. Bank National Association, as trustee.  Capitalized terms used but not defined herein
shall have the meanings given to them in the Indenture.


 


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


 


1.                                      Exchange
of Restricted Definitive Notes or Beneficial Interests in a Restricted Global
Note for Unrestricted Definitive Notes or Beneficial Interests in an
Unrestricted Global Note


 


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


 


(b)                                 o  Check if Exchange is from
beneficial interest in a Restricted Global Note to Unrestricted Definitive Note.  In connection with the Exchange of the
Owner’s


 


C-1

















 


beneficial
interest in a Restricted Global Note for an Unrestricted Definitive Note, the
Owner hereby certifies (i) the Definitive Note is being acquired for the
Owner’s own account without transfer, (ii) such Exchange has been effected
in compliance with the transfer restrictions applicable to the Restricted
Global Notes and pursuant to and in accordance with the Securities Act,
(iii) the restrictions on transfer contained in the Indenture and the
Private Placement Legend are not required in order to maintain compliance with
the Securities Act and (iv) the Definitive Note is being acquired in
compliance with any applicable blue sky securities laws of any state of the
United States.


 


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


 


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


 


2.                                      Exchange
of Restricted Definitive Notes or Beneficial Interests in Restricted Global
Notes for Restricted Definitive Notes or Beneficial Interests in Restricted
Global Notes


 


(a)                                 o  Check if Exchange is from
beneficial interest in a Restricted Global Note to Restricted Definitive Note.  In connection with the Exchange of the
Owner’s beneficial interest in a Restricted Global Note for a Restricted
Definitive Note with an equal principal amount, the Owner hereby certifies that
the Restricted Definitive Note is being acquired for the Owner’s own account
without transfer.  Upon consummation of
the proposed Exchange in accordance with the terms of the Indenture, the
Restricted Definitive Note issued will continue to be subject to the
restrictions on transfer enumerated in the Private Placement Legend printed on
the Restricted Definitive Note and in the Indenture and the Securities Act.


 


(b)                                 o  Check if Exchange is from Restricted Definitive
Note to beneficial interest in a Restricted Global Note.  In connection with the Exchange of the
Owner’s Restricted


 


C-2

















 


Definitive
Note for a beneficial interest in the [CHECK ONE]  o 144A Global Note, o Regulation S
Global Note, the Owner hereby certifies (i) the beneficial interest is
being acquired for the Owner’s own account without transfer and (ii) such
Exchange has been effected in compliance with the transfer restrictions
applicable to the Restricted Global Notes and pursuant to and in accordance
with the Securities Act, and in compliance with any applicable blue sky
securities laws of any state of the United States.  Upon consummation of the proposed Exchange in
accordance with the terms of the Indenture, the beneficial interest issued will
be subject to the restrictions on transfer enumerated in the Private Placement
Legend printed on the relevant Restricted Global Note and in the Indenture and
the Securities Act.


 


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


 


	
   

  	
   

  
	
   

  	
  [Insert
  Name of Owner]

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  
	
   

  	
   

  
	
   

  	
   

  
	
  Dated:                    ,     

  	
   

  



 


C-3

















 


EXHIBIT D


 


NOTE GUARANTEE


 


Each
of the undersigned hereto (hereinafter collectively referred to as the “Guarantors,”
which term includes any successor or additional Guarantor under the Indenture
(the “Indenture”) referred to in the Note upon which this notation is endorsed)
(i) has unconditionally guaranteed (a) the due and punctual payment
of the principal of, premium, if any, and interest on the Notes, whether at
maturity or interest payment date, by acceleration, call for redemption or
otherwise, (b) the due and punctual payment of interest on the overdue
principal of and (if lawful) interest, if any, on the Notes, (c) the due
and punctual performance of all other obligations of the Company to the Holders
or the Trustee, all in accordance with the terms set forth in the Indenture,
and (d) in case of any extension of time of payment or renewal of any
Notes or any of such other obligations, the same will be promptly paid in full
when due or performed in accordance with the terms of the extension or renewal,
whether at stated maturity, by acceleration or otherwise and (ii) has
agreed to pay any and all costs and expenses (including reasonable attorneys’
fees) incurred by the Trustee or any Holder in accordance with the terms of the
Indenture in enforcing any rights under this Note Guarantee.


 


The
obligations of each Guarantor to the Holders and to the Trustee pursuant to
this Note Guarantee and the Indenture are expressly set forth in the Indenture,
and reference is hereby made to such Indenture for the precise terms of this
Note Guarantee.


 


No
stockholder, manager, officer, director, employee or incorporator, as such,
past, present or future, of the Guarantors shall have any personal liability
under this Guarantee by reason of his, her or its status as such stockholder,
manager, officer, director, employee or incorporator.


 


This
Note Guarantee shall be binding upon each Guarantor and its successors and
assigns and shall inure to the benefit of the successors and assigns of the
Trustee and the Holders and, in the event of any transfer or assignment of
rights by any Holder or the Trustee, the rights and privileges herein conferred
upon that party shall automatically extend to and be vested in such transferee
or assignee, all subject to the terms and conditions hereof.  This is a Note Guarantee of payment and not
of collection.


 


This
Note Guarantee shall not be valid or obligatory for any purpose until the
certificate of authentication on the Note upon which this Note Guarantee is
noted shall have been executed by the Trustee under the Indenture by the manual
signature of one of its authorized officers.


 


D-1

















 


	
   

  	
  EACH
  ENTITY LISTED ON SCHEDULE I 

  
	
   

  	
  HERETO

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  



 


D-2

















 


SCHEDULE I


 


SquareTwo
Financial Commercial Funding Corporation


Healthcare
Funding Solutions, LLC


CACH,
LLC


CACV
of Colorado, LLC


ReFinance
America, Ltd.


Orsa,
LLC


Candeo,
LLC


Autus,
LLC


CACH
of NJ, LLC


CACV
of New Jersey, LLC


Collect
America of Canada, LLC


 


D-3

















 


EXHIBIT E


 


FORM OF CERTIFICATE FROM

ACQUIRING INSTITUTIONAL ACCREDITED INVESTOR


 


SquareTwo
Financial Corporation

4340 S. Monaco, Second Floor

Denver, CO 80237

Telecopier No.:  303-713-2509

Attention:  General Counsel


 


U.S.
Bank National Association 

Corporate Trust Services

950 17th Street 

Denver, CO 80202

Attention:  SquareTwo Administrator


 


Re:  11.625% Senior Second Lien Notes due 2017


 


Reference
is hereby made to the Indenture, dated as of April 7, 2010 (the “Indenture”),
between SquareTwo Financial Corporation, as issuer (the “Company”), and
U.S. Bank National Association, as trustee. 
Capitalized terms used but not defined herein shall have the meanings
given to them in the Indenture.


 


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


 


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


 


(b)                                 o  a Definitive Note.


 


We
confirm that;


 


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


 


2.                                      We understand
that the offer and sale of the Notes have not been registered under the
Securities Act, and that the Notes and any interest therein may not be offered
or sold except as permitted in the following sentence.  We agree, on our own behalf and on behalf of
any accounts for which we are acting as hereinafter stated, that if we should
sell the Notes or any interest therein, we will do so only (A) to the
Company or any subsidiary thereof, (B) in accordance with Rule 144A
under the Securities Act to a “qualified institutional buyer”


 


E-1

















 


(as
defined therein), (c) an “accredited investor” (as defined below) that,
prior to such transfer, furnishes (or has furnished on its behalf by a U.S.
broker-dealer) to you and to the Company a signed letter substantially in the
form of this letter and an Opinion of Counsel in form reasonably acceptable to
the Company to the effect that such transfer is in compliance with the
Securities Act, (D) outside the United States in accordance with Rule 904
of Regulation S under the Securities Act, (E) pursuant to the provisions
of Rule 144 under the Securities Act or (F) pursuant to an effective
registration statement under the Securities Act, and we further agree to
provide to any person purchasing the Definitive Note or beneficial interest in
a Global Note from us in a transaction meeting the requirements of clauses (A) through
(E) of this paragraph a notice advising such purchaser that resales
thereof are restricted as stated herein.


 


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


 


4.                                      We are an “accredited
investor” (as defined in Rule 501(a)(1), (2), (3), (5), (6), (7) or (8) of
Regulation D under the Securities Act) and have such knowledge and experience
in financial and business matters as to be capable of evaluating the merits and
risks of our investment in the Notes, and we and any accounts for which we are
acting are each able to bear the economic risk of our or its investment.


 


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


 


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


 


	
   

  	
   

  
	
   

  	
  [Insert
  Name of Accredited Investor]

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  
	
   

  	
   

  
	
   

  	
   

  
	
  Dated:            ,     

  	
   

  



 


E-2