Exhibit 4.1


 




 





MXENERGY HOLDINGS INC.,


 


as Issuer,


 


and


 


THE GUARANTORS PARTY HERETO,


 


as Guarantors


 


Floating Rate Senior Notes due 2011


 






 


INDENTURE


 


Dated as of August 4, 2006


 






 


LAW DEBENTURE TRUST COMPANY OF NEW YORK,


 


as Trustee


 


 


DEUTSCHE BANK TRUST COMPANY AMERICAS,


 


as Paying Agent and Registrar


 




 





 

















 


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)

  	
   

  	
  7.3,
  7.8, 7.10

  	
   

  
	
   

  	
  (c)

  	
   

  	
  N.A.

  	
   

  
	
  311

  	
  (a)

  	
   

  	
  7.11

  	
   

  
	
   

  	
  (b)

  	
   

  	
  7.11

  	
   

  
	
   

  	
  (c)

  	
   

  	
  N.A.

  	
   

  
	
  312

  	
  (a)

  	
   

  	
  2.5

  	
   

  
	
   

  	
  (b)

  	
   

  	
  12.3

  	
   

  
	
   

  	
  (c)

  	
   

  	
  12.3

  	
   

  
	
  313

  	
  (a)

  	
   

  	
  7.6

  	
   

  
	
   

  	
  (b)(1)

  	
   

  	
  7.6

  	
   

  
	
   

  	
  (b)(2)

  	
   

  	
  7.6

  	
   

  
	
   

  	
  (c)

  	
   

  	
  7.6,
  12.2

  	
   

  
	
   

  	
  (d)

  	
   

  	
  7.6

  	
   

  
	
  314

  	
  (a)

  	
   

  	
  4.3,
  4.4, 12.5

  	
   

  
	
   

  	
  (b)

  	
   

  	
  N.A.

  	
   

  
	
   

  	
  (c)(1)

  	
   

  	
  12.4

  	
   

  
	
   

  	
  (c)(2)

  	
   

  	
  12.4

  	
   

  
	
   

  	
  (c)(3)

  	
   

  	
  N.A.

  	
   

  
	
   

  	
  (d)

  	
   

  	
  N.A.

  	
   

  
	
   

  	
  (e)

  	
   

  	
  12.5

  	
   

  
	
   

  	
  (f)

  	
   

  	
  N.A.

  	
   

  
	
  315

  	
  (a)

  	
   

  	
  7.1(b)

  	
   

  
	
   

  	
  (b)

  	
   

  	
  7.5

  	
   

  
	
   

  	
  (c)

  	
   

  	
  7.1(a)

  	
   

  
	
   

  	
  (d)

  	
   

  	
  7.1(c)

  	
   

  
	
   

  	
  (e)

  	
   

  	
  6.11

  	
   

  
	
  316

  	
  (a)(last
  sentence)

  	
   

  	
  2.9

  	
   

  
	
   

  	
  (a)(1)(A)

  	
   

  	
  6.5

  	
   

  
	
   

  	
  (a)(1)(B)

  	
   

  	
  6.4

  	
   

  
	
   

  	
  (a)(2)

  	
   

  	
  N.A.

  	
   

  
	
   

  	
  (b)

  	
   

  	
  6.7

  	
   

  
	
   

  	
  (c)

  	
   

  	
  N.A.

  	
   

  
	
  317

  	
  (a)(1)

  	
   

  	
  6.8

  	
   

  
	
   

  	
  (a)(2)

  	
   

  	
  6.9

  	
   

  
	
   

  	
  (b)

  	
   

  	
  2.4

  	
   

  
	
  318

  	
  (a)

  	
   

  	
  12.1

  	
   

  
	
   

  	
  (b)

  	
   

  	
  N.A.

  	
   

  
	
   

  	
  (c)

  	
   

  	
  12.1

  	
   

  



 






N.A. means Not Applicable


 


*                 This Cross-Reference Table shall not, for any
purpose, be deemed a part of this Indenture.


 

















 


TABLE OF CONTENTS


 


	
   

  	
   

  	
  Page

  
	
   

  	
   

  	
   

  
	
  ARTICLE I.

  	
   

  
	
   

  	
   

  	
   

  
	
  DEFINITIONS AND INCORPORATION BY REFERENCE

  	
   

  
	
   

  	
   

  	
   

  
	
  Section 1.1.

  	
  Definitions

  	
  1

  
	
  Section 1.2.

  	
  Other
  Definitions

  	
  20

  
	
  Section 1.3.

  	
  Incorporation
  by Reference of Trust Indenture Act

  	
  21

  
	
  Section 1.4.

  	
  Rules
  of Construction

  	
  22

  
	
  Section 1.5.

  	
  Acts
  of Holders

  	
  22

  
	
   

  	
   

  	
   

  
	
  ARTICLE II.

  	
   

  
	
   

  	
   

  	
   

  
	
  THE NOTES

  	
   

  
	
   

  	
   

  	
   

  
	
  Section 2.1.

  	
  Form
  and Dating

  	
  23

  
	
  Section 2.2.

  	
  Execution
  and Authentication

  	
  24

  
	
  Section 2.3.

  	
  Registrar
  and Paying Agent

  	
  24

  
	
  Section 2.4.

  	
  Paying
  Agents to Hold Money in Trust

  	
  25

  
	
  Section 2.5.

  	
  Holder
  Lists

  	
  25

  
	
  Section 2.6.

  	
  Transfer
  and Exchange

  	
  25

  
	
  Section 2.7.

  	
  Replacement
  Notes

  	
  32

  
	
  Section 2.8.

  	
  Outstanding
  Notes

  	
  32

  
	
  Section 2.9.

  	
  Treasury
  Notes

  	
  33

  
	
  Section 2.10.

  	
  Temporary
  Notes

  	
  33

  
	
  Section 2.11.

  	
  Cancellation

  	
  33

  
	
  Section 2.12.

  	
  Defaulted
  Interest

  	
  33

  
	
  Section 2.13.

  	
  Persons
  Deemed Owners

  	
  34

  
	
  Section 2.14.

  	
  CUSIP
  Numbers

  	
  34

  
	
  Section 2.15.

  	
  Designation

  	
  34

  
	
   

  	
   

  	
   

  
	
  ARTICLE III.

  	
   

  
	
   

  	
   

  	
   

  
	
  REDEMPTION AND REPURCHASE

  	
   

  
	
   

  	
   

  	
   

  
	
  Section 3.1.

  	
  Notices
  to Trustee

  	
  34

  
	
  Section 3.2.

  	
  Selection
  of Notes

  	
  34

  
	
  Section 3.3.

  	
  Notice
  of Optional or Special Redemption

  	
  35

  
	
  Section 3.4.

  	
  Effect
  of Notice of Redemption

  	
  36

  
	
  Section 3.5.

  	
  Deposit
  of Redemption Price or Purchase Price

  	
  36

  
	
  Section 3.6.

  	
  Notes
  Redeemed or Repurchased in Part

  	
  36

  
	
  Section 3.7.

  	
  Optional
  Redemption

  	
  36

  
	
  Section 3.8.

  	
  Special
  Redemption

  	
  37

  
	
  Section 3.9.

  	
  Repurchase
  upon Change of Control Offer

  	
  37

  
	
  Section 3.10.

  	
  Repurchase
  upon Application of Net Proceeds

  	
  38

  



 


i

















 


	
   

  	
   

  	
  Page

  
	
   

  	
   

  	
   

  
	
  ARTICLE IV.

  	
   

  
	
   

  	
   

  	
   

  
	
  COVENANTS

  	
   

  
	
   

  	
   

  	
   

  
	
  Section 4.1.

  	
  Payment
  of Principal and Interest

  	
  40

  
	
  Section 4.2.

  	
  Maintenance
  of Office or Agency

  	
  40

  
	
  Section 4.3.

  	
  Reports

  	
  40

  
	
  Section 4.4.

  	
  Compliance
  Certificate

  	
  41

  
	
  Section 4.5.

  	
  Taxes

  	
  41

  
	
  Section 4.6.

  	
  Stay,
  Extension and Usury Laws

  	
  42

  
	
  Section 4.7.

  	
  Limitation
  on Restricted Payments

  	
  42

  
	
  Section 4.8.

  	
  Limitation
  on Dividend and Other Payment Restrictions Affecting Restricted Subsidiaries

  	
  44

  
	
  Section 4.9.

  	
  Limitation
  on Incurrence of Additional Indebtedness

  	
  45

  
	
  Section 4.10.

  	
  Limitation
  on Asset Sales

  	
  46

  
	
  Section 4.11.

  	
  Limitations
  on Transactions with Affiliates

  	
  48

  
	
  Section 4.12.

  	
  Limitation
  on Liens

  	
  49

  
	
  Section 4.13.

  	
  Continued
  Existence

  	
  49

  
	
  Section 4.14.

  	
  Insurance
  Matters

  	
  50

  
	
  Section 4.15.

  	
  Offer
  to Repurchase upon Change of Control

  	
  50

  
	
  Section 4.16.

  	
  Additional
  Subsidiary Guarantees

  	
  50

  
	
  Section 4.17.

  	
  Payments
  for Consent

  	
  51

  
	
  Section 4.18.

  	
  Limitation
  on Preferred Stock of Restricted Subsidiaries

  	
  51

  
	
  Section 4.19.

  	
  Conduct
  of Business

  	
  51

  
	
   

  	
   

  	
   

  
	
  ARTICLE V.

  	
   

  
	
   

  	
   

  	
   

  
	
  SUCCESSORS

  	
   

  
	
   

  	
   

  	
   

  
	
  Section 5.1.

  	
  Merger,
  Consolidation and Sale of Assets

  	
  51

  
	
  Section 5.2.

  	
  Successor
  Corporation Substituted

  	
  53

  
	
   

  	
   

  	
   

  
	
  ARTICLE VI.

  	
   

  
	
   

  	
   

  	
   

  
	
  DEFAULTS AND REMEDIES

  	
   

  
	
   

  	
   

  	
   

  
	
  Section 6.1.

  	
  Events
  of Default

  	
  53

  
	
  Section 6.2.

  	
  Acceleration

  	
  54

  
	
  Section 6.3.

  	
  Other
  Remedies

  	
  55

  
	
  Section 6.4.

  	
  Waiver
  of Past Defaults

  	
  55

  
	
  Section 6.5.

  	
  Control
  by Majority

  	
  56

  
	
  Section 6.6.

  	
  Limitation
  on Suits

  	
  56

  
	
  Section 6.7.

  	
  Rights
  of Holders of Notes to Receive Payment

  	
  56

  
	
  Section 6.8.

  	
  Collection
  Suit by Trustee

  	
  56

  
	
  Section 6.9.

  	
  Trustee
  May File Proofs of Claim

  	
  57

  
	
  Section 6.10.

  	
  Priorities

  	
  57

  
	
  Section 6.11.

  	
  Undertaking
  for Costs

  	
  57

  



 


ii

















 


	
   

  	
   

  	
  Page

  
	
   

  	
   

  	
   

  
	
  ARTICLE VII.

  	
   

  
	
   

  	
   

  	
   

  
	
  TRUSTEE

  	
   

  
	
   

  	
   

  	
   

  
	
  Section 7.1.

  	
  Duties
  of Trustee

  	
  58

  
	
  Section 7.2.

  	
  Rights
  of Trustee

  	
  59

  
	
  Section 7.3.

  	
  Individual
  Rights of Trustee

  	
  59

  
	
  Section 7.4.

  	
  Trustee’s
  Disclaimer

  	
  60

  
	
  Section 7.5.

  	
  Notice
  of Defaults

  	
  60

  
	
  Section 7.6.

  	
  Reports
  by Trustee to Holders of the Notes

  	
  60

  
	
  Section 7.7.

  	
  Compensation,
  Reimbursement and Indemnity

  	
  60

  
	
  Section 7.8.

  	
  Replacement
  of Trustee

  	
  61

  
	
  Section 7.9.

  	
  Successor
  Trustee by Merger, Etc

  	
  62

  
	
  Section 7.10.

  	
  Eligibility;
  Disqualification

  	
  62

  
	
  Section 7.11.

  	
  Preferential
  Collection of Claims Against Company

  	
  62

  
	
   

  	
   

  	
   

  
	
  ARTICLE VIII.

  	
   

  
	
   

  	
   

  	
   

  
	
  LEGAL DEFEASANCE AND COVENANT DEFEASANCE

  	
   

  
	
   

  	
   

  	
   

  
	
  Section 8.1.

  	
  Option
  to Effect Legal Defeasance or Covenant Defeasance

  	
  62

  
	
  Section 8.2.

  	
  Legal
  Defeasance and Discharge

  	
  62

  
	
  Section 8.3.

  	
  Covenant
  Defeasance

  	
  63

  
	
  Section 8.4.

  	
  Conditions
  to Legal or Covenant Defeasance

  	
  63

  
	
  Section 8.5.

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

  	
  65

  
	
  Section 8.6.

  	
  Repayment
  to Company

  	
  65

  
	
  Section 8.7.

  	
  Reinstatement

  	
  65

  
	
   

  	
   

  	
   

  
	
  ARTICLE IX.

  	
   

  
	
   

  	
   

  	
   

  
	
  AMENDMENT, SUPPLEMENT AND WAIVER

  	
   

  
	
   

  	
   

  	
   

  
	
  Section 9.1.

  	
  Without
  Consent of Holders of Notes

  	
  66

  
	
  Section 9.2.

  	
  With
  Consent of Holders of Notes

  	
  66

  
	
  Section 9.3.

  	
  Compliance
  with Trust Indenture Act

  	
  68

  
	
  Section 9.4.

  	
  Revocation
  and Effect of Consents

  	
  68

  
	
  Section 9.5.

  	
  Notation
  on or Exchange of Notes

  	
  68

  
	
  Section 9.6.

  	
  Trustee
  to Sign Amendment, Etc

  	
  68

  
	
   

  	
   

  	
   

  
	
  ARTICLE X.

  	
   

  
	
   

  	
   

  	
   

  
	
  GUARANTEE

  	
   

  
	
   

  	
   

  	
   

  
	
  Section 10.1.

  	
  Unconditional
  Guarantee

  	
  68

  
	
  Section 10.2.

  	
  Severability

  	
  69

  
	
  Section 10.3.

  	
  Limitation
  of Guarantor’s Liability

  	
  69

  
	
  Section 10.4.

  	
  Release
  of Guarantor

  	
  69

  
	
  Section 10.5.

  	
  Contribution

  	
  70

  
	
  Section 10.6.

  	
  Waiver
  of Subrogation

  	
  70

  



 


iii

















 


	
   

  	
   

  	
  Page

  
	
   

  	
   

  	
   

  
	
  Section 10.7.

  	
  Execution
  of Guarantee

  	
  71

  
	
  Section 10.8.

  	
  Waiver
  of Stay, Extension or Usury Laws

  	
  71

  
	
   

  	
   

  	
   

  
	
  ARTICLE XI.

  	
   

  
	
   

  	
   

  	
   

  
	
  SATISFACTION AND DISCHARGE

  	
   

  
	
   

  	
   

  	
   

  
	
  Section 11.1.

  	
  Satisfaction
  and Discharge

  	
  72

  
	
  Section 11.2.

  	
  Application
  of Trust

  	
  72

  
	
   

  	
   

  	
   

  
	
  ARTICLE XII.

  	
   

  
	
   

  	
   

  	
   

  
	
  MISCELLANEOUS

  	
   

  
	
   

  	
   

  	
   

  
	
  Section 12.1.

  	
  Trust
  Indenture Act Controls

  	
  73

  
	
  Section 12.2.

  	
  Notices

  	
  73

  
	
  Section 12.3.

  	
  Communication
  by Holders of Notes with Other Holders of Notes

  	
  74

  
	
  Section 12.4.

  	
  Certificate
  and Opinion as to Conditions Precedent

  	
  74

  
	
  Section 12.5.

  	
  Statements
  Required in Certificate or Opinion

  	
  75

  
	
  Section 12.6.

  	
  Rules
  by Trustee and Agents

  	
  75

  
	
  Section 12.7.

  	
  No
  Personal Liability of Directors, Officers, Employees and Stockholders

  	
  75

  
	
  Section 12.8.

  	
  Governing
  Law; Submission to Jurisdiction; Waiver of Jury Trial

  	
  75

  
	
  Section 12.9.

  	
  No
  Adverse Interpretation of Other Agreements

  	
  76

  
	
  Section 12.10.

  	
  Successors

  	
  76

  
	
  Section 12.11.

  	
  Severability

  	
  76

  
	
  Section 12.12.

  	
  Counterpart
  Originals

  	
  76

  
	
  Section 12.13.

  	
  Table
  of Contents, Headings, Etc

  	
  76

  
	
  Section 12.14.

  	
  Qualification
  of Indenture

  	
  76

  
	
   

  	
   

  	
   

  
	
  Signatures

  	
   

  	
  S-1

  



 


	
  EXHIBITS

  	
   

  
	
   

  	
   

  	
   

  
	
  Exhibit A

  	
  Form
  of Series A Note

  	
   

  
	
   

  	
   

  	
   

  
	
  Exhibit B

  	
  Form
  of Series B Note

  	
   

  
	
   

  	
   

  	
   

  
	
  Exhibit C

  	
  Form
  of Guarantee

  	
   

  
	
   

  	
   

  	
   

  
	
  Exhibit D(1)

  	
  Form
  of Regulation S Certificate

  	
   

  
	
   

  	
   

  	
   

  
	
  Exhibit D(2)

  	
  Form
  of Certificate to Be Delivered upon Exchange or Registration of Transfer of
  Notes

  	
   

  
	
   

  	
   

  	
   

  
	
  Exhibit E

  	
  Form
  of Certificate to Be Delivered in Connection with Transfers to Non-QIB
  Accredited Investors

  	
   

  
	
   

  	
   

  	
   

  
	
  Exhibit F

  	
  Form
  of Certificate to Be Delivered in Connection with Transfers Pursuant to
  Regulation S

  	
   

  



 


iv

















 


INDENTURE


 


INDENTURE
dated as of August 4, 2006 among MXENERGY HOLDINGS INC., a Delaware corporation
(the “Company”), the Guarantors (as defined herein), if any, Deutsche
Bank Trust Company Americas, as Paying Agent and Registrar (as defined herein)
and Law Debenture Trust Company of New York, as trustee (the “Trustee”).


 


Each
party agrees as follows for the benefit of the other parties and for the equal
and ratable benefit of the Holders (as defined below) of the Company’s Floating
Rate Senior Notes due 2011:


 


ARTICLE I.


 


DEFINITIONS AND INCORPORATION BY REFERENCE


 


Section 1.1.                                   Definitions.


 


“ABL
Facility” means the First Amended and Restated Credit Agreement dated as of
August 1, 2006, by and among MxEnergy Inc. and MxEnergy Electric Inc., each a
Subsidiary of the Company, the Company, the other guarantors party thereto, the
lenders party thereto in their capacities as lenders thereunder and Société
Générale, as administrative agent, together with the related documents thereto
(including, without limitation, any guarantee agreements and security
documents), in each case as such agreements may be amended (including any
amendment and restatement thereof), supplemented or otherwise modified from
time to time, including one or more credit agreements, loan agreements or
similar agreements (but excluding debt securities) extending the maturity of,
refinancing, replacing or otherwise restructuring (including increasing the
amount of available borrowings thereunder or adding Restricted Subsidiaries of
the Company as additional borrowers or guarantors thereunder) all or any
portion of the Indebtedness under such agreement or agreements or any successor
or replacement agreement or agreements and whether by the same or any other
agent, lender or group of lenders; provided
that any such agreement amending, supplementing, modifying, refinancing,
replacing or otherwise restructuring the foregoing shall be an asset based
facility with a borrowing base concept, in each case similar to the agreement
as in effect on the Issue Date.


 


“Acquired
Indebtedness” means Indebtedness of a Person or any of its Subsidiaries
existing at the time such Person becomes a Restricted Subsidiary of the Company
or at the time it merges or consolidates with or into the Company or any of its
Subsidiaries or assumed in connection with the acquisition of assets from such
Person and in each case not incurred by such Person in connection with, or in
anticipation or contemplation of, such Person becoming a Restricted Subsidiary of
the Company or such acquisition, merger or consolidation.


 


“Additional
Interest” means all additional interest then owing pursuant to
Section 4 of the Registration Rights Agreement or the comparable section
of any registration rights agreement entered into in connection with the
issuance of any Additional Notes.


 


“Additional
Notes” means Notes issued pursuant to Article II and in compliance with
Section 4.9, in addition to and having substantially the same terms as the
$190.0 million aggregate principal amount of Series A Notes issued on
the Issue Date or as the Series B Notes issued in exchange therefor.


 


“Affiliate”
means, with respect to any specified Person, any other Person who directly or
indirectly through one or more intermediaries controls, or is controlled by, or
is under common control with, such specified Person. The term “control” means
the possession, directly or indirectly, of the power to direct or cause the
direction of the management and policies of a Person, whether through the
ownership of voting securities, by contract or otherwise; and the terms “controlling”
and “controlled” have meanings correlative of the foregoing.


 


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


 

















 


“Asset
Acquisition” means (1) an Investment by the Company or any Restricted
Subsidiary of the Company in any other Person pursuant to which such Person
shall become a Restricted Subsidiary of the Company or any Restricted
Subsidiary of the Company, or shall be merged with or into the Company or any
Restricted Subsidiary of the Company, or (2) the acquisition by the
Company or any Restricted Subsidiary of the Company of the assets of any Person
(other than a Restricted Subsidiary of the Company) which constitute all or
substantially all of the assets of such Person or comprises any division or
line of business of such Person or any other properties or assets of such
Person other than in the ordinary course of business.


 


“Asset
Sale” means any direct or indirect sale, issuance, conveyance, transfer,
lease (other than operating leases entered into in the ordinary course of
business), assignment or other transfer for value by the Company or any of its
Restricted Subsidiaries (including any Sale and Leaseback Transaction) to any
Person other than the Company or a Wholly Owned Restricted Subsidiary of the
Company of:  (1) any Capital Stock
of any Restricted Subsidiary of the Company; or (2) any other property or
assets of the Company or any Restricted Subsidiary of the Company other than in
the ordinary course of business; provided,
however, that asset sales or
other dispositions shall not include: 
(a) a transaction or series of related transactions for which the
Company or its Restricted Subsidiaries receive aggregate consideration of less
than $1.0 million; (b) the sale, lease, conveyance, disposition or other
transfer of all or substantially all of the assets of the Company as permitted
under Section 5.1; (c) any Restricted Payment permitted by Section 4.7 or
that constitutes a Permitted Investment; (d) the sale or discount, in each
case without recourse, of accounts receivable arising in the ordinary course of
business, but only in connection with the compromise or collection thereof;
(e) disposals or replacements of obsolete or worn-out equipment; (f) the
grant of Liens not prohibited by this Indenture; (g) the licensing of
intellectual property; (h) dispositions of accounts receivable to local
distribution companies under guaranteed receivables agreements entered into in
the ordinary course of business; and (i) the sale of inventory in the ordinary
course of business.


 


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


 


“Board
of Directors” means, as to any Person, the board of directors (or similar
governing body) of such Person or any duly authorized committee thereof.


 


“Board
Resolution” means, with respect to any Person, a copy of a resolution
certified by the Secretary or an Assistant Secretary of such Person to have
been duly adopted by the Board of Directors of such Person and to be in full
force and effect on the date of such certification, and delivered to the
Trustee.


 


“Borrowing
Base” means the sum of:


 


(i)                                     100% of the cash and Cash Equivalents of the
Company and the Restricted Subsidiaries of the Company;


 


(ii)                                  90% of the net book value of the accounts
receivable of the Company and the Restricted Subsidiaries of the Company;


 


(iii)                               85% of the net book value of the natural gas inventory of the Company
and the Restricted Subsidiaries of the Company;


 


(iv)                              80% of the difference between the amount of natural gas or electricity
delivered by the Company and the Restricted Subsidiaries of the Company to a
local distribution company in the ordinary course of business during the
fifteen day period ending immediately prior to any date of determination and
the amount of natural gas or electricity consumed by customers of the Company
and the


 


2

















 


Restricted
Subsidiaries of the Company that such local distribution company supplies
during the same period; and


 


(v)                                 80% of the undrawn face amount of all
supplier letters of credit for which the gas or electricity has not been
physically delivered to the Company or any of its Restricted Subsidiaries, and
which will become inventory described by clause (3) above upon delivery to
the Company or such Restricted Subsidiary or result in accounts receivable
described by clause (2) above upon delivery to a Person other than the
Company or such Restricted Subsidiary;


 


provided that in no event shall the Borrowing Base, as defined hereby, exceed
the borrowing base, as defined by the ABL Facility, as of any date of
determination.


 


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


 


“Capital
Stock” means:


 


(1)                                  with respect to any Person that is a
corporation, any and all shares, interests, participations or other equivalents
(however designated and whether or not voting) of corporate stock, including
each class of Common Stock and Preferred Stock of such Person, and all options,
warrants or other rights to purchase or acquire any of the foregoing; and


 


(2)                                  with respect to any Person that is not a
corporation, any and all partnership, membership or other equity interests of
such Person, and all options, warrants or other rights to purchase or acquire
any of the foregoing.


 


“Capitalized
Lease Obligation” means, as to any Person, the obligations of such Person
under a lease that are required to be classified and accounted for as capital
lease obligations under GAAP and, for purposes of this definition, the amount
of such obligations at any date shall be the capitalized amount of such
obligations at such date, determined in accordance with GAAP.


 


“Cash
Equivalents” means:


 


(1)                                  marketable direct obligations issued by, or
unconditionally guaranteed by, the United States Government or issued by any
agency thereof and backed by the full faith and credit of the United States, in
each case maturing within one year from the date of acquisition thereof;


 


(2)                                  marketable direct obligations issued by any
state of the United States of America or any political subdivision of any such
state or any public instrumentality thereof maturing within one year from the
date of acquisition thereof and, at the time of acquisition, having one of the
two highest ratings obtainable from either Standard & Poor’s Ratings Group
(“S&P”) or Moody’s Investors Service, Inc. (“Moody’s”);


 


(3)                                  commercial paper maturing no more than one
year from the date of creation thereof and, at the time of acquisition, having
a rating of at least A-1 from S&P or at least P-1 from Moody’s;


 


(4)                                  certificates of deposit or bankers’
acceptances maturing within one year from the date of acquisition thereof
issued by any bank organized under the laws of the United States of America or


 


3

















 


any
state thereof or the District of Columbia or any U.S. branch of a foreign bank
having at the date of acquisition thereof combined capital and surplus of not
less than $250.0 million;


 


(5)                                  repurchase obligations with a term of not
more than seven days for underlying securities of the types described in
clause (1) above entered into with any bank meeting the qualifications
specified in clause (4) above; and


 


(6)                                  investments in money market funds which
invest substantially all their assets in securities of the types described in
clauses (1) through (5) above.


 


“Change
of Control” means the occurrence of one or more of the following events:


 


(1)                                  any sale, lease, exchange or other transfer
(in one transaction or a series of related transactions) of all or
substantially all of the assets of the Company to any Person or group of
related Persons for purposes of Section 13(d) of the Exchange Act (a “Group”),
together with any Affiliates thereof (whether or not otherwise in compliance
with the provisions of this Indenture) other than to the Permitted Holders;


 


(2)                                  the approval by the holders of Capital Stock
of the Company of any plan or proposal for the liquidation or dissolution of
the Company  (whether or not otherwise in
compliance with the provisions of this Indenture);


 


(3)                                  any Person or Group (other than the Permitted
Holders and any entity formed by the Permitted Holders for the purpose of owning
Capital Stock of the Company) shall become the owner, directly or indirectly,
beneficially or of record, of shares representing more than 50% of the
aggregate ordinary voting power represented by the issued and outstanding
Capital Stock of the Company; or


 


(4)                                  the replacement of a majority of the Board of
Directors of the Company over a two-year period from the directors who
constituted the Board of Directors of the Company at the beginning of such
period, and such replacement shall not have been approved by a vote of at least
a majority of the Board of Directors of the Company, then still in office who
either were members of such Board of Directors at the beginning of such period
or whose election as a member of such Board of Directors was previously so approved.


 


“Commission”
means the Securities and Exchange Commission.


 


“Common
Stock” of any Person means any and all shares, interests or other
participations in, and other equivalents (however designated and whether voting
or non-voting) of such Person’s common stock, whether outstanding on the Issue
Date or issued after the Issue Date, and includes, without limitation, all
series and classes of such common stock.


 


“Company”
means MxEnergy Holdings Inc., a Delaware corporation, or any successor obligor
under this Indenture and the Notes pursuant to Article V.


 


“Consolidated
EBITDA” means, with respect to any Person, for any period, the sum (without
duplication) of:


 


(1)                                  Consolidated Net Income; and


 


4

















 


(2)                                  to the extent Consolidated Net Income has
been reduced thereby:


 


(a)                                  all income taxes of such Person and its
Restricted Subsidiaries paid or accrued in accordance with GAAP for such period
(other than income taxes attributable to extraordinary, unusual or nonrecurring
gains or losses or taxes attributable to sales or dispositions outside the
ordinary course of business);


 


(b)                                 Consolidated Interest Expense; and


 


(c)                                  Consolidated Non-cash Charges less any non-cash items increasing
Consolidated Net Income for such period, all as determined on a consolidated
basis for such Person and its Restricted Subsidiaries in accordance with GAAP.


 


In
addition to the foregoing, Consolidated EBITDA shall be calculated to exclude
any unrealized gains or losses from risk management activities of any Person
and its Restricted Subsidiaries as set forth on such Person’s consolidated
financial statements.


 


“Consolidated
Fixed Charge Coverage Ratio” means, with respect to any Person, the ratio
of Consolidated EBITDA of such Person during the four full fiscal quarters (the
“Four Quarter Period”) ending prior to the date of the transaction
giving rise to the need to calculate the Consolidated Fixed Charge Coverage
Ratio for which financial statements are available (the “Transaction Date”)
to Consolidated Fixed Charges of such Person for the Four Quarter Period. In
addition to and without limitation of the foregoing, for purposes of this
definition, “Consolidated EBITDA” and “Consolidated Fixed Charges” shall be
calculated after giving effect on a pro
forma basis for the period of
such calculation to:


 


(1)                                  the incurrence or repayment of any
Indebtedness of such Person or any of its Restricted Subsidiaries (and the
application of the proceeds thereof) giving rise to the need to make such calculation
and any incurrence or repayment of other Indebtedness (and the application of
the proceeds thereof), other than the incurrence or repayment of Indebtedness
in the ordinary course of business for working capital purposes pursuant to
working capital facilities, occurring during the Four Quarter Period or at any
time subsequent to the last day of the Four Quarter Period and on or prior to
the Transaction Date, as if such incurrence or repayment, as the case may be
(and the application of the proceeds thereof), occurred on the first day of the
Four Quarter Period; and


 


(2)                                  any asset sales or other dispositions or
Asset Acquisitions (including, without limitation, any Asset Acquisition giving
rise to the need to make such calculation as a result of such Person or one of
its Restricted Subsidiaries (including any Person who becomes a Restricted
Subsidiary as a result of the Asset Acquisition) incurring, assuming or
otherwise being liable for Acquired Indebtedness and also including any
Consolidated EBITDA (including any pro forma
expense and cost reductions calculated on a basis consistent with Regulation
S-X under the Exchange Act) attributable to the assets which are the subject of
the Asset Acquisition or asset sale or other disposition during the Four Quarter
Period) occurring during the Four Quarter Period or at any time subsequent to
the last day of the Four Quarter Period and on or prior to the Transaction
Date, as if such asset sale or other disposition or Asset Acquisition
(including the incurrence, assumption or liability for any such Acquired
Indebtedness) occurred on the first day of the Four Quarter Period. If such
Person or any of its Restricted Subsidiaries directly or indirectly guarantees
Indebtedness of a third Person, the preceding sentence shall give effect to the
incurrence of such guaranteed Indebtedness as if such Person or any Restricted
Subsidiary of such Person had directly incurred or otherwise assumed such
guaranteed Indebtedness.


 


Furthermore,
in calculating “Consolidated Fixed Charges” for purposes of determining the
denominator (but not the numerator) of this “Consolidated Fixed Charge Coverage
Ratio”:


 


5

















 


(1)                                  interest on outstanding Indebtedness
determined on a fluctuating basis as of the Transaction Date and which will
continue to be so determined thereafter shall be deemed to have accrued at a
fixed rate per annum equal to the rate of interest on such Indebtedness in
effect on the Transaction Date; and


 


(2)                                  notwithstanding clause (1) above,
interest on Indebtedness determined on a fluctuating basis, to the extent such
interest is covered by agreements relating to Interest Swap Obligations, shall
be deemed to accrue at the rate per annum resulting after giving effect to the
operation of such agreements.


 


“Consolidated
Fixed Charges” means, with respect to any Person for any period, the sum,
without duplication, of:


 


(1)                                  Consolidated Interest Expense; plus


 


(2)                                  the product of (x) the amount of all
dividend payments on any series of Preferred Stock of such Person and, to the
extent permitted under this Indenture, its Restricted Subsidiaries (other than
dividends paid in Qualified Capital Stock and other than dividends paid by a
Restricted Subsidiary of such Person to such Person or to a Wholly Owned
Restricted Subsidiary of such Person) paid, accrued or scheduled to be paid or
accrued during such period times (y) a fraction, the numerator of which is
one and the denominator of which is one minus the then current effective
consolidated federal, state and local income tax rate of such Person, expressed
as a decimal.


 


“Consolidated
Interest Expense” means, with respect to any Person for any period, the sum
of, without duplication:


 


(1)                                  the aggregate of the interest expense of such
Person and its Restricted Subsidiaries for such period determined on a
consolidated basis in accordance with GAAP, including without limitation:  (a) any amortization of debt discount;
(b) the net costs under Interest Swap Obligations; (c) all
capitalized interest; and (d) the interest portion of any deferred payment
obligation; provided that the
foregoing shall not include the amortization or write-off of deferred financing
costs; and


 


(2)                                  the interest component of Capitalized Lease
Obligations paid, accrued and/or scheduled to be paid or accrued by such Person
and its Restricted Subsidiaries during such period as determined on a
consolidated basis in accordance with GAAP.


 


“Consolidated
Net Income” means, with respect to any Person, for any period, the
aggregate net income (or loss) of such Person and its Restricted Subsidiaries
for such period on a consolidated basis, determined in accordance with GAAP; provided that there shall be excluded
therefrom:


 


(1)                                  after-tax gains or losses from Asset Sales
(without regard to the $1.0 million limitation set forth in the definition
thereof) or abandonments or reserves relating thereto;


 


(2)                                  after-tax items classified as extraordinary
or nonrecurring gains;


 


(3)                                  the net income of any Person accrued prior to
the date it becomes a Restricted Subsidiary of the referent Person or is merged
or consolidated with the referent Person or any Restricted Subsidiary of the
referent Person;


 


(4)                                  the net income (but not loss) of any
Restricted Subsidiary of the referent Person to the extent that the declaration
of dividends or similar distributions by that Restricted Subsidiary of that
income


 


6

















 


is
restricted by a contract, operation of law or otherwise, unless received in
cash by the Company or a Restricted Subsidiary that is not subject to any such
restriction and other than to the extent permitted by the covenant described in
Section 4.8;


 


(5)                                  the net income of any Person, other than a
Restricted Subsidiary of the referent Person, except to the extent of cash
dividends or distributions paid to the referent Person or to a Restricted
Subsidiary of the referent Person by such Person;


 


(6)                                  any restoration to income of  any contingency reserve, except to the extent
that provision for such reserve was made out of Consolidated Net Income accrued
at any time following the Issue Date;


 


(7)                                  income or loss attributable to discontinued
operations (including, without limitation, operations disposed of during such
period whether or not such operations were classified as discontinued); and


 


(8)                                  in the case of a successor to the referent
Person by consolidation or merger or as a transferee of the referent Person’s
assets, any earnings of the successor corporation prior to such consolidation,
merger or transfer of assets.


 


“Consolidated
Non-cash Charges” means, with respect to any Person, for any period, the
aggregate depreciation, amortization and other non-cash expenses of such Person
and its Restricted Subsidiaries reducing Consolidated Net Income of such Person
and its Restricted Subsidiaries for such period, determined on a consolidated
basis in accordance with GAAP (excluding any such charges constituting an
extraordinary item or loss or any such charge which requires an accrual of or a
reserve for cash charges for any future period).


 


“Corporate
Trust Office” shall be at the address of the Paying Agent and Registrar
specified in Section 12.2 or such other address as to which the Trustee
may give notice to the Company.


 


“Currency
Agreement” means any foreign exchange contract, currency swap agreement or
other similar agreement or arrangement designed to protect the Company or any
Restricted Subsidiary of the Company against fluctuations in currency values.


 


“DBTCA”
means Deutsche Bank Trust Company Americas.


 


“Default”
means an event or condition the occurrence of which is, or with the lapse of
time or the giving of notice or both would be, an Event of Default.


 


“Depositary”
means, with respect to the Notes issuable in whole or in part in global form,
the Person specified in Section 2.6(g) as the Depositary with respect to
the Notes, until a successor shall have been appointed and become such pursuant
to the applicable provisions hereof, and, thereafter, “Depositary” shall mean
or include such successor.


 


“Determination
Date”, with respect to an Interest Period, will be the second London
Banking Day preceding the first day of the Interest Period.


 


“Disqualified
Capital Stock” means that portion of any Capital Stock which, by its terms
(or by the terms of any security into which it is convertible or for which it
is exchangeable at the option of the holder thereof), or upon the happening of
any event (other than an event which would constitute a Change of Control or an
Asset Sale), matures or is mandatorily redeemable, pursuant to a sinking fund
obligation or otherwise, or is


 


7

















 


redeemable
at the sole option of the holder thereof (except, in each case, upon the
occurrence of a Change of Control or an Asset Sale) on or prior to the final
maturity date of the Notes.


 


“Domestic
Restricted Subsidiary” means a Restricted Subsidiary incorporated or
otherwise organized or existing under the laws of the United States, any state
thereof or any territory or possession of the United States.


 


“Equity
Offering” means any public or private sale of Qualified Capital Stock of
the Company or any of its direct or indirect parent companies (provided that, in the event of an Equity
Offering by a direct or indirect parent company, such company contributes to
the capital of the Company the portion of net cash proceeds of such Equity
Offering necessary to pay the aggregate redemption price (plus accrued interest to the redemption
date) of the Notes to be redeemed pursuant to the preceding paragraph), other
than (i) public offerings with respect to common stock of the Company or any of
its direct or indirect parent companies registered on Form S-4 or Form S-8 or
(ii) an issuance to any Subsidiary of the Company.


 


“Exchange
Act” means the Securities Exchange Act of 1934, as amended, or any
successor statute or statutes thereto.


 


“Exchange
Notes” means the Floating Rate Senior Notes due 2011 issued in exchange for
the Initial Notes, which Exchange Notes are registered under the Securities Act
and issued pursuant to the terms of a certain registration rights agreement
dated as of August 4, 2006 by and among the Company, the Guarantors and the
initial purchasers named therein.


 


“Exchange
Offer” means the offer that shall be made by the Company pursuant to the
Registration Rights Agreement to exchange Series A Notes for Series B
Notes.


 


“fair
market value” means, with respect to any asset or property, the price which
could be negotiated in an arm’s-length, free market transaction, for cash,
between a willing seller and a willing and able buyer, neither of whom is under
undue pressure or compulsion to complete the transaction. Fair market value
shall be determined by the Board of Directors of the Company acting reasonably
and in good faith and shall be evidenced by a Board Resolution of the Board of
Directors of the Company delivered to the Trustee.


 


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


 


“Guarantee”
means a guarantee of the Notes by a Guarantor.


 


“Guarantor”
means (1) each of the Company’s Subsidiaries as of the Issue Date that is
a Domestic Restricted Subsidiary and (2) each of the Company’s Restricted
Subsidiaries that in the future executes a supplemental indenture in which such
Restricted Subsidiary agrees to be bound by the terms of this Indenture as a
Guarantor; provided that any
Person constituting a Guarantor as described above shall cease to constitute a
Guarantor when its respective Guarantee is released in accordance with the
terms of this Indenture.


 


“Hedge
Facility” means the Master Transaction Agreement dated as of August 1, 2006
among Société Générale, as hedge provider, MxEnergy Inc., as counterparty
and the Company and certain of its subsidiaries, as guarantors, the
ISDA Documents (as defined therein) and any guarantees, collateral documents,
instruments and agreements executed in connection therewith, and any
amendments, supplements, modifications, extensions, renewals, restatements or
replacements thereof.


 


8

















 


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


 


“Indebtedness”
means with respect to any Person, without duplication:


 


(1)                                  all Obligations of such Person for borrowed
money;


 


(2)                                  all Obligations of such Person evidenced by
bonds, debentures, notes or other similar instruments;


 


(3)                                  all Capitalized Lease Obligations of such
Person;


 


(4)                                  all Obligations of such Person issued or
assumed as the deferred purchase price of property, all conditional sale
obligations and all Obligations under any title retention agreement (but
excluding trade accounts payable and other accrued liabilities arising in the
ordinary course of business that are not overdue by 120 days or more or are
being contested in good faith by appropriate proceedings promptly instituted
and diligently conducted);


 


(5)                                  all Obligations for the reimbursement of any
obligor on any letter of credit, banker’s acceptance or similar credit
transaction;


 


(6)                                  guarantees and other contingent obligations
in respect of Indebtedness referred to in clauses (1) through (5) above and
clause (8) below;


 


(7)                                  all Obligations of any other Person of the
type referred to in clauses (1) through (6) which are secured by any lien on
any property or asset of such Person, the amount of such Obligation being
deemed to be the lesser of the fair market value of such property or asset or
the amount of the Obligation so secured;


 


(8)                                  all Obligations under currency agreements and
interest swap agreements of such Person; and


 


(9)                                  all Disqualified Capital Stock issued by such
Person with the amount of Indebtedness represented by such Disqualified Capital
Stock being equal to the greater of its voluntary or involuntary liquidation
preference and its maximum fixed repurchase price, but excluding accrued
dividends, if any.


 


For
purposes hereof, the “maximum fixed repurchase price” of any Disqualified
Capital Stock which does not have a fixed repurchase price shall be calculated
in accordance with the terms of such Disqualified Capital Stock as if such
Disqualified Capital Stock were purchased on any date on which Indebtedness
shall be required to be determined pursuant to this Indenture, and if such
price is based upon, or measured by, the fair market value of such Disqualified
Capital  Stock, such fair market value
shall be determined reasonably and in good faith by the Board of Directors of
the issuer of such Disqualified Capital Stock.


 


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


 


“Independent
Financial Advisor” means a firm (1) which does not, and whose
directors, officers and employees or Affiliates do not, have a direct or
indirect financial interest in the Company; and (2) which, in the judgment
of the Board of Directors of the Company, is otherwise independent and
qualified to perform the task for which it is to be engaged.


 


“Initial
Notes” means the Series A Notes.


 


9

















 


“Initial
Purchasers” means Deutsche Bank Securities Inc. and Morgan Stanley &
Co. Incorporated.


 


“Interest
Period” means the period commencing on and including an interest payment
date and ending on and including the day immediately preceding the next succeeding
interest payment date, with the exception that the first Interest Period shall
commence on and include the Issue Date and end on and include January 31, 2007.


 


“Interest
Swap Obligations” means the obligations of any Person pursuant to any
arrangement with any other Person, whereby, directly or indirectly, such Person
is entitled to receive from time to time periodic payments calculated by
applying either a floating or a fixed rate of interest on a stated notional
amount in exchange for periodic payments made by such other Person calculated
by applying a fixed or a floating rate of interest on the same notional amount
and shall include, without limitation, interest rate swaps, caps, floors,
collars and similar agreements.


 


“Investment”
means, with respect to any Person, any direct or indirect loan or other
extension of credit (including, without limitation, a guarantee) or capital
contribution to (by means of any transfer of cash or other property to others
or any payment for property or services for the account or use of others), or
any purchase or acquisition by such Person of any Capital Stock, bonds, notes,
debentures or other securities or evidences of Indebtedness issued by, any
other Person. “Investment” shall exclude extensions of trade credit by the
Company and its Restricted Subsidiaries on commercially reasonable terms in
accordance with normal trade practices of the Company or such Restricted
Subsidiary, as the case may be. If the Company or any Restricted Subsidiary of
the Company sells or otherwise disposes of any Common Stock of any direct or
indirect Restricted Subsidiary of the Company such that, after giving effect to
any such sale or disposition, such Person is no longer a Subsidiary of the
Company, the Company 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 Common Stock
of such Restricted Subsidiary not sold or disposed of. Except as otherwise
provided in this Indenture, the amount of an Investment will be determined at
the time the Investment is made and without giving effect to subsequent changes
in value.


 


“Issue
Date” means the date of original issuance of the Notes.


 


“LIBOR”,
with respect to an Interest Period, will be the rate (expressed as a percentage
per annum) for deposits in United States dollars for a six-month period
beginning on the second London Banking Day after the Determination Date that
appears on Telerate Page 3750 as of 11:00 a.m., London time, on the
Determination Date. If Telerate Page 3750 does not include such a rate or is
unavailable on a Determination Date, the Calculation Agent will request the
principal London office of each of four major banks in the London interbank
market, as selected by the Calculation Agent, to provide such bank’s offered
quotation (expressed as a percentage per annum), as of approximately
11:00 a.m., London time, on such Determination Date, to prime banks in the
London interbank market for deposits in a Representative Amount in United
States dollars for a six-month period beginning on the second London Banking
Day after the Determination Date. If at least two such offered quotations are
so provided, LIBOR for the Interest Period will be the arithmetic mean of such
quotations. If fewer than two such quotations are so provided, the Calculation
Agent will request each of three major banks in New York City, as selected by
the Calculation Agent, to provide such bank’s rate (expressed as a percentage
per annum), as of approximately 11:00 a.m., New York City time, on such
Determination Date, for loans in a Representative Amount in United States
dollars to leading European banks for a six-month period beginning on the
second London Banking Day after the Determination Date. If at least two such
rates are so provided, LIBOR for the Interest Period will be the arithmetic
mean of such rates. If fewer than two such rates are so provided, then LIBOR
for the Interest Period will be LIBOR in effect with respect to the immediately
preceding Interest Period.


 


“Lien”
means any lien, mortgage, deed of trust, pledge, security interest, charge or
encumbrance of any kind (including any conditional sale or other title
retention agreement, any lease in the nature thereof and any agreement to give
any security interest).


 


10

















 


“London
Banking Day” is any day in which dealings in United States dollars are
transacted or, with respect to any future date, are expected to be transacted
in the London interbank market.


 


“Net
Cash Proceeds” means, with respect to any Asset Sale, the proceeds in the
form of cash or Cash Equivalents including payments in respect of deferred
payment obligations when received in the form of cash or Cash Equivalents
(other than the portion of any such deferred payment constituting interest)
received by the Company or any of its Restricted Subsidiaries from such Asset
Sale net of:


 


(1)                                  reasonable out-of-pocket expenses and fees
relating to such Asset Sale (including, without limitation, legal, accounting
and investment banking fees and sales commissions);


 


(2)                                  taxes paid or payable after taking into
account any reduction in consolidated tax liability due to available tax
credits or deductions and any tax sharing arrangements;


 


(3)                                  repayment of Indebtedness that is secured by
the property or assets that are the subject of such Asset Sale; and


 


(4)                                  appropriate amounts to be provided by the
Company or any Restricted Subsidiary, as the case may be, as a reserve, in
accordance with GAAP, against any liabilities associated with such Asset Sale
and retained by the Company or any Restricted Subsidiary, as the case may be,
after such Asset Sale, including, without limitation, pension and other
post-employment benefit liabilities, liabilities related to  environmental matters and liabilities under
any indemnification obligations associated with such Asset Sale.


 


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


 


“Notes”
means the Series A Notes and the Series B Notes, if any, that are
issued under this Indenture, as amended or supplemented from time to time,
including Additional Notes, if any, and any Exchange Notes, if any.


 


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


 


“Officer”
means, (a) with respect to any Person that is a corporation, the Chairman of
the Board, the Chief Executive Officer, the President, Vice President,
Assistant Vice President, the Chief Operating Officer, the Chief Financial
Officer, the Chief Operating Officer, the Treasurer, the Controller, the
Secretary or any Vice-President of such Person and (b) with respect to any
other Person, the individuals selected by such Person to perform functions
similar to those of the officers listed in clause (a).


 


“Officers’
Certificate” means a certificate signed on behalf of the Company by two
Officers of the Company, one of whom must be the Chief Executive Officer, the
Chief Financial Officer, the Treasurer or the principal accounting officer of
the Company, that meets the requirements of Sections 12.4 and 12.5.


 


“Opinion
of Counsel” means an opinion from legal counsel who is reasonably
acceptable to the Trustee that meets the requirements of Sections 12.4 and 12.5.
The counsel may be an employee of or counsel to the Company, any Subsidiary of
the Company or the Trustee.


 


“Pari
Passu Indebtedness” means any Indebtedness of the Company or any Guarantor
that ranks pari passu in right of
payment with the Notes or the Guarantee of such Guarantor, as applicable.


 


11

















 


“Permitted
Holders” means Jeffrey Mayer, Carol R. Artman-Hodge, Sowood Commodity
Partners Fund LP, Charter Mx LLC and Greenhill Capital Partners, LLC, and their
respective Affiliates.


 


“Permitted
Indebtedness” means, without duplication, each of the following:


 


(1)                                  Indebtedness under the Notes issued on the
Issue Date in an aggregate principal amount not to exceed $190.0 million,
this Indenture and the Guarantees and any Exchange Notes issued in exchange
therefor;


 


(2)                                  Indebtedness incurred pursuant to the ABL
Facility in an aggregate principal amount at any time outstanding not to exceed
the greater of (x) $300.0 million and (y) the Borrowing Base, less:


 


(a)                                  the amount of all payments actually made by
the borrower thereunder in respect of Indebtedness thereunder with Net Proceeds
from Asset Sales pursuant to the covenant described in Section 5.1 (excluding
any such payments to the extent refinanced at the time of payment under a
replaced ABL Facility); and


 


(b)                                 reduced by any required permanent repayments
(which are accompanied by a corresponding permanent commitment reduction)
thereunder;


 


(3)                                  Indebtedness incurred pursuant to the Sowood
Credit Facility in an aggregate principal amount at any time outstanding not to
exceed $12.0 million;


 


(4)                                  other Indebtedness of the Company and its
Restricted Subsidiaries outstanding on the Issue Date (including, without limitation,
the Company’s Series A Convertible Preferred Stock) reduced by the amount of
any scheduled amortization payments or mandatory prepayments when actually paid
or permanent reductions thereon;


 


(5)                                  Interest Swap Obligations of the Company or
any Restricted Subsidiary of the Company covering Indebtedness of the Company
or any of its Restricted Subsidiaries; provided,
however, that such Interest Swap
Obligations are entered into to protect the Company and its Restricted
Subsidiaries from fluctuations in interest rates on its outstanding
Indebtedness to the extent the notional principal amount of such Interest Swap
Obligation does not, at the time of the incurrence thereof, exceed the
principal amount of the Indebtedness to which such Interest Swap Obligation
relates;


 


(6)                                  Indebtedness under Currency Agreements; provided that in the case of Currency
Agreements which relate to Indebtedness, such Currency Agreements do not
increase the Indebtedness of the Company and its Restricted Subsidiaries
outstanding other than as a result of fluctuations in foreign currency exchange
rates or by reason of fees, indemnities and compensation payable thereunder;


 


(7)                                  Indebtedness of a Restricted Subsidiary of
the Company to the Company or to a Wholly Owned Restricted Subsidiary of the
Company for so long as such Indebtedness is held by the Company or a Wholly
Owned Restricted Subsidiary of the Company or the holder of a Lien permitted
under this Indenture, in each case subject to no Lien held by a Person other
than the Company or a Wholly Owned Restricted Subsidiary of the Company or the
holder of a Lien permitted under this Indenture; provided that if as of any date any Person other than the
Company or a Wholly Owned Restricted Subsidiary of the Company or the holder of
a Lien permitted under this Indenture owns or holds any such Indebtedness or
holds a Lien in respect of such Indebtedness, such date shall be deemed the
incurrence of Indebtedness not constituting Permitted Indebtedness under this
clause (7) by the issuer of such Indebtedness;


 


12

















 


(8)                                  Indebtedness of the Company to a Wholly Owned
Restricted Subsidiary of the Company for so long as such Indebtedness is held
by a Wholly Owned Restricted Subsidiary of the Company or the holder of a Lien
permitted under this Indenture, in each case subject to no Lien other than a
Lien permitted under this Indenture; provided
that (a) any Indebtedness of the Company to any Wholly Owned Restricted
Subsidiary of the Company that is not a Guarantor is unsecured and
subordinated, pursuant to a written agreement, to the Company’s obligations
under this Indenture and the Notes and (b) if as of any date any Person
other than a Wholly Owned Restricted Subsidiary of the Company or the holder of
a Lien permitted under this Indenture owns or holds any such Indebtedness or
any Person holds a Lien in respect of such Indebtedness, such date shall be
deemed the incurrence of Indebtedness not constituting Permitted Indebtedness
under this clause (8) by the Company;


 


(9)                                  Indebtedness arising from the honoring by a
bank or other financial institution of a check, draft or similar instrument
inadvertently (except in the case of daylight overdrafts) drawn against
insufficient funds in the ordinary course of business; provided, however,
that such Indebtedness is extinguished within five business days of incurrence;


 


(10)                            Indebtedness of the Company or any of its Restricted Subsidiaries in
respect of performance bonds, bankers’ acceptances, workers’ compensation
claims, surety or appeal bonds, payment obligations in connection with
self-insurance or similar obligations, and bank overdrafts (and letters of
credit in respect thereof) in the ordinary course of business;


 


(11)                            Indebtedness represented by Capitalized Lease Obligations and Purchase
Money Indebtedness of the Company and its Restricted Subsidiaries incurred in
the ordinary course of business not to exceed (together with any Refinancing
Indebtedness with respect thereto) $15.0 million at any one time outstanding;


 


(12)                            Refinancing Indebtedness;


 


(13)                            Indebtedness represented by guarantees by the Company or its Restricted
Subsidiaries of Indebtedness otherwise permitted to be incurred under this
Indenture;


 


(14)                            Indebtedness of the Company or any Restricted Subsidiary consisting of “earn-out”
obligations, guarantees, indemnities or obligations in respect of purchase
price adjustments in connection with the acquisition or disposition of assets
(including Capital Stock); and


 


(15)                            additional Indebtedness of the Company and its Restricted Subsidiaries
in an aggregate principal amount (or accreted value) not to exceed $7.5 million
at any one time outstanding (which amount may, but need not, be incurred in
whole or in part under the ABL Facility).


 


For
purposes of determining compliance with Section 4.9, in the event that an item
of Indebtedness meets the criteria of more than one of the categories of
Permitted Indebtedness described in clauses (1) through (15) above or is
entitled to be incurred pursuant to the Consolidated Fixed Charge Coverage
Ratio provisions of such covenant, the Company shall, in its sole discretion,
classify (or later reclassify) such item of Indebtedness in any manner that
complies with this covenant; provided
that all Indebtedness outstanding under the ABL Facility up to the maximum
amount permitted under clause (2) above shall be deemed to have been
incurred pursuant to clause (2). Accrual of interest, accretion or amortization
of original issue discount, the payment of interest on any Indebtedness in the
form of additional Indebtedness with the same terms, and the payment of
dividends on Disqualified Capital Stock in the form of additional shares of the
same class of Disqualified Capital Stock will not be deemed to be an incurrence
of Indebtedness or an issuance of preferred stock of a Restricted Subsidiary or
Disqualified Capital Stock, as applicable, for purposes of Section 4.9.


 


13

















 


“Permitted
Investments” means:


 


(1)                                  Investments by the Company or any Restricted
Subsidiary of the Company in any Person that is or will become immediately
after such Investment a Restricted Subsidiary of the Company or that will merge
or consolidate into the Company or a Restricted Subsidiary of the Company;


 


(2)                                  Investments in the Company by any Restricted
Subsidiary of the Company; provided
that any Indebtedness evidencing such Investment and held by a Restricted
Subsidiary that is not a Guarantor is unsecured and subordinated, pursuant to a
written agreement, to the Company’s obligations under the Notes and this
Indenture;


 


(3)                                  investments in cash and Cash Equivalents;


 


(4)                                  loans and advances to employees, directors
and officers of the Company and its Restricted Subsidiaries in the ordinary
course of business for bona fide business purposes not in excess of $1.0
million at any one time outstanding;


 


(5)                                  Currency Agreements and Interest Swap
Obligations entered into in the ordinary course of the Company’s or its
Restricted Subsidiaries’ businesses and otherwise in compliance with this
Indenture;


 


(6)                                  additional Investments (other than any
Investments in any direct or indirect parent company of the Company) not to
exceed $10.0 million at any one time outstanding;


 


(7)                                  Investments in securities of trade creditors or
customers received pursuant to any plan of reorganization or similar
arrangement upon the bankruptcy or insolvency of such trade creditors or
customers or in good faith settlement of delinquent obligations of such trade
creditors or customers;


 


(8)                                  Investments made by the Company or its
Restricted Subsidiaries as a result of consideration received in connection
with an Asset Sale made in compliance with Section 4.10;


 


(9)                                  Investments resulting from the creation of
Liens on the assets of the Company or any of its Restricted Subsidiaries in
compliance with Section 4.12;


 


(10)                            Investments represented by guarantees that are otherwise permitted
under this Indenture; and


 


(11)                            Investments the payment for which is Qualified Capital Stock of the
Company.


 


“Permitted
Liens” means the following types of Liens:


 


(1)                                  Liens for taxes, assessments or governmental
charges or claims either (a) not delinquent or (b) contested in good
faith by appropriate proceedings and as to which the Company or its Restricted
Subsidiaries shall have set aside on its books such reserves as may be required
pursuant to GAAP;


 


(2)                                  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, if such reserve or other
appropriate provision, if any, as shall be required by GAAP shall have been
made in respect thereof;


 


14

















 


(3)                                  Liens incurred or deposits made in the
ordinary course of business in connection with workers’ compensation,
unemployment insurance and other types of social security, including any Lien
securing letters of credit issued in the ordinary course of business consistent
with past practice in connection therewith, or to secure the performance of
tenders, statutory obligations, surety and appeal bonds, bids, leases,
government contracts, performance and return-of-money bonds and other similar
obligations (exclusive of obligations for the payment of borrowed money);


 


(4)                                  judgment Liens not giving rise to an Event of
Default so long as such Lien is adequately bonded and any appropriate legal
proceedings which may have been duly initiated for the review of such judgment
shall not have been finally terminated or the period within which such
proceedings may be initiated shall not have expired;


 


(5)                                  easements, rights-of-way, zoning restrictions
and other similar charges or encumbrances in respect of real property not
interfering in any material respect with the ordinary conduct of the business
of the Company or any of its Restricted Subsidiaries;


 


(6)                                  any interest or title of a lessor under any
Capitalized Lease Obligation; provided
that such Liens do not extend to any property or assets which is not leased
property subject to such Capitalized Lease Obligation (other than other
property that is subject to a separate lease from such lessor or any of its
Affiliates);


 


(7)                                  Liens securing Purchase Money Indebtedness
incurred in the ordinary course of business; provided,
however, that (a) such
Purchase Money Indebtedness shall not exceed the purchase price or other cost
of such property or equipment and shall not be secured by any property or
equipment of the Company or any Restricted Subsidiary of the Company other than
the property and equipment so acquired or other property that was acquired from
such seller or any of its Affiliates with the proceeds of Purchase Money
Indebtedness and (b) the Lien securing such Purchase Money Indebtedness
shall be created within 120 days of such acquisition;


 


(8)                                  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;


 


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


 


(10)                            Liens encumbering deposits made to secure obligations arising from
statutory, regulatory, contractual (including, without limitation, (a)
contracts for trading activities in the ordinary course of business and for the
purchase, transmission, distribution, sale, lease or hedge of any
energy-related commodity or service and (b) commodity price management
contracts or derivatives), or warranty requirements of the Company or any of
its Restricted Subsidiaries, including 
rights of offset and set-off;


 


(11)                            Liens securing Interest Swap Obligations which Interest Swap
Obligations relate to Indebtedness that is otherwise permitted under this
Indenture;


 


(12)                            Liens securing Indebtedness under Currency Agreements; and


 


(13)                            Liens securing Acquired Indebtedness incurred in accordance with
Section 4.9; provided that:


 


15

















 


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


 


(b)                                 such Liens do not extend to or cover any
property or assets of the Company or of any of its Restricted Subsidiaries
other than the property or assets that secured the Acquired Indebtedness prior
to the time such  Indebtedness became
Acquired Indebtedness of the Company or a Restricted Subsidiary of the Company
and are no more favorable to the lienholders than those securing the Acquired
Indebtedness prior to the incurrence of such Acquired Indebtedness by the
Company or a Restricted Subsidiary of the Company.


 


(14)                            Liens on assets of a Restricted Subsidiary of the Company that is not a
Guarantor to secure Indebtedness of such Restricted Subsidiary that is
otherwise permitted under this Indenture;


 


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


 


(16)                            banker’s Liens, rights of setoff and similar Liens with respect to cash
and Cash Equivalents on deposit in one or more bank accounts in the ordinary
course of business;


 


(17)                            Liens arising from filing Uniform Commercial Code financing statements
regarding leases;


 


(18)                            Liens in favor of customs and revenue authorities arising as a matter
of law to secure payments of custom duties in connection with the importation
of goods;


 


(19)                            Liens (a) on inventory held by and granted to a local distribution
company in the ordinary course of business and (b) in accounts purchased and
collected by and granted to a local distribution company that has agreed to
make payments to the Company or any of its Restricted Subsidiaries for such
amounts in the ordinary course of business; and


 


(20)                            Liens with respect to obligations (including Indebtedness) of the
Company or any of its Restricted Subsidiaries that do not exceed $7.5 million
at any one time outstanding.


 


“Person”
means an individual, partnership, corporation, unincorporated organization,
trust or joint venture, or a governmental agency or political subdivision
thereof.


 


“The
PORTAL Market” means the Private Offerings, Resales and Trading through
Automatic Linkages Market, commonly referred to as The Portal Market, operated
by the National Association of Securities Dealers, Inc. or any successor
thereto.


 


“Preferred
Stock” of any Person means any Capital Stock of such Person that has
preferential rights to any other Capital Stock of such Person with respect to
dividends or redemptions or upon liquidation.


 


“Purchase
Date” means, with respect to any Note to be repurchased, the date fixed for
such repurchase by or pursuant to this Indenture.


 


“Purchase
Money Indebtedness” means Indebtedness of the Company and its Restricted
Subsidiaries incurred in the normal course of business for the purpose of
financing all or any part of the purchase price, or the cost of installation,
construction or improvement, of property or equipment.


 


16

















 


“Purchase
Price” means the amount payable for the repurchase of any Note on a
Purchase Date, exclusive of accrued and unpaid interest and Additional Interest
(if any) thereon to the Purchase Date, unless otherwise specifically provided.


 


“QIB”
means a qualified institutional buyer as defined in Rule 144A under the
Securities Act.


 


“Qualified
Capital Stock” means any Capital Stock that is not Disqualified Capital
Stock.


 


“Redemption
Date” means, with respect to any Note to be redeemed, the date fixed for
such redemption by or pursuant to this Indenture.


 


“Redemption
Price” means the amount payable for the redemption of any Note on a
Redemption Date, exclusive of accrued and unpaid interest and Additional
Interest (if any) thereon to the Redemption Date, unless otherwise specifically
provided.


 


“Refinance”
means, in respect of any security or Indebtedness, to refinance, extend, renew,
refund, repay, prepay, redeem, defease or retire, or to issue a security or
Indebtedness in exchange or replacement for, such security or Indebtedness in
whole or in part. “Refinanced” and “Refinancing” shall have correlative
meanings.


 


“Refinancing
Indebtedness” means any Refinancing by the Company or any Restricted
Subsidiary of the Company of Indebtedness incurred in accordance with Section
4.9 (other than pursuant to clauses (2), (3), (5), (6), (7), (8), (9) ,
(10), (13), (14) or (15) of the definition of Permitted Indebtedness), in each
case that does not:


 


(1)                                  result in an increase in the aggregate
principal amount of Indebtedness of such Person as of the date of such proposed
Refinancing (plus the amount of all accrued interest and any premium required
to be paid under the terms of the instrument governing such Indebtedness and
plus the amount of reasonable expenses incurred by the Company in connection
with such Refinancing); or


 


(2)                                  create Indebtedness with:  (a) a Weighted Average Life to Maturity
that is less than the Weighted Average Life to Maturity of the Indebtedness
being Refinanced; or (b) a final maturity earlier than the final maturity
of the Indebtedness being Refinanced; provided
that (x) if such Indebtedness being Refinanced is Indebtedness solely of
the Company (and is not otherwise guaranteed by a Restricted Subsidiary of the
Company), then such Refinancing Indebtedness shall be Indebtedness solely of
the Company and (y) if such Indebtedness being Refinanced is subordinate
or junior to the Notes or any Guarantee, then such Refinancing Indebtedness
shall be subordinate to the Notes or such Guarantee, as the case may be, at
least to the same extent and in the same manner as the Indebtedness being
Refinanced.


 


“Registration
Rights Agreement” means the registration rights agreement dated as of
August 4, 2006, among the Company, the Guarantors and the Initial Purchasers.


 


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


 


“Representative
Amount” means a principal amount of not less than $1,000,000 for a single
transaction in the relevant market at the relevant time.


 


“Responsible
Officer” means, when used with respect to the Trustee, any officer of the
Trustee assigned by the Trustee to administer this Indenture and also means,
with respect to a particular corporate trust


 


17

















 


matter, any other officer to
whom such matter is referred because of his knowledge of and familiarity with
the particular subject.


 


“Restricted
Subsidiary” of any Person means any Subsidiary of such Person which at the
time of determination is not an Unrestricted Subsidiary.


 


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


 


“Sale
and Leaseback Transaction” means any direct or indirect arrangement with
any Person or to which any such Person is a party, providing for the leasing to
the Company or a Restricted Subsidiary of any property, whether owned by the
Company or any Restricted Subsidiary at the Issue Date or later acquired, which
has been or is to be sold or transferred by the Company or such Restricted
Subsidiary to such Person or to any other Person from whom funds have been or
are to be advanced by such Person on the security of such Property.


 


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


 


“Series
A Notes” means the Company’s Floating Rate Senior Notes due 2011 issued
under this Indenture and not registered under the Securities Act, whether
issued on the Issue Date or thereafter, including any Additional Notes, if
applicable.


 


“Series
B Notes” means notes issued by the Company hereunder containing terms
identical to the Series A Notes (except that (i) interest and
Additional Interest (if any) thereon shall accrue from the last date on which
interest was paid on the Series A Notes or, if no such interest has been
paid, from the date of original issuance, (ii) the legend or legends
relating to transferability and other related matters set forth on the
Series A Notes, including the text referred to in footnote 2 of Exhibit A,
shall be removed or appropriately altered, and (iii) as otherwise set
forth herein), to be offered to Holders of Series A Notes in exchange for
such Series A Notes pursuant to the Exchange Offer or any exchange offer
specified in any registration rights agreement relating to Additional Notes or
in a registered public offering of Additional Notes.


 


“Significant
Subsidiary”, with respect to any Person, means any Restricted Subsidiary of
such Person that satisfies the criteria for a “significant subsidiary” set
forth in Rule 1.02(w) of Regulation S-X under the Exchange Act.


 


“Sowood
Credit Facility” means the amended and restated loan agreement by and among
the Company, the Guarantors and Sowood Commodity Partners Fund LP, dated as of
November 14, 2003 and amended on and through the Issue Date, including any
guarantees, collateral documents, instruments and agreements executed in
connection therewith, and any amendments, supplements, modifications,
extensions, renewals, restatements, refundings or refinancings thereof.


 


“Stated
Maturity” means, with respect to any installment of interest or principal
on any series of Indebtedness, the date on which the payment of interest or
principal was scheduled to be paid in the original documentation governing such
Indebtedness, and will 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.


 


“Subordinated
Indebtedness” means Indebtedness of the Company or any Guarantor that is
subordinated or junior in right of payment to the Notes or the Guarantee of
such Guarantor, as the case may be.


 


18

















 


“Subsidiary”,
with respect to any Person, means:


 


(1)                                  any corporation of which the outstanding
Capital Stock having at least a majority of the votes entitled to be cast in
the election of directors under ordinary circumstances shall at the time be
owned, directly or indirectly, by such Person; or


 


(2)                                  any other Person of which at least a majority
of the voting interest under ordinary circumstances is at the time, directly or
indirectly, owned by such Person.


 


“Telerate
Page 3750” means the display designated as “Page 3750” on the Moneyline
Telerate service (or such other page as may replace Page 3750 on that service).


 


“TIA”
means the Trust Indenture Act of 1939 (15 U.S.C. §§ 77aaa-77bbbb) as in effect
on the date on which this Indenture is qualified under the TIA; provided that in the event the Trust
Indenture Act of 1939 is amended after such date, “TIA” means, to the extent
required by any such amendment, the Trust Indenture Act of 1939 as so amended.


 


“Transfer
Restricted Security” means a Note that is a restricted security as defined
in Rule 144(a)(3) under the Securities Act.


 


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


 


“Unrestricted
Subsidiary” of any Person means:


 


(1)                                  any Subsidiary of such Person that at the
time of determination shall be or continue to be designated an Unrestricted
Subsidiary by the Board of Directors of such Person in the manner provided
below; and


 


(2)                                  any Subsidiary of an Unrestricted Subsidiary.


 


The
Board of Directors may designate any Subsidiary (including any newly acquired
or newly formed Subsidiary) to be an Unrestricted Subsidiary unless such
Subsidiary owns any Capital Stock of, or owns or holds any Lien on any property
of, the Company or any other Subsidiary of the Company that is not a Subsidiary
of the Subsidiary to be so designated; provided
that:


 


(1)                                  the Company certifies to the Trustee that
such designation complies with Section 4.7; and


 


(2)                                  each Subsidiary to be so designated and each
of its Subsidiaries has not at the time of designation, and does not
thereafter, create, incur, issue, assume, guarantee or otherwise become
directly or indirectly liable with respect to any Indebtedness pursuant to
which the lender has recourse to any of the assets of the Company or any of its
Restricted Subsidiaries.


 


For
purposes of making the determination of whether any such designation of a
Subsidiary as an Unrestricted Subsidiary complies with Section 4.7, the portion
of the fair market value of the net assets of such Subsidiary of the Company at
the time that such Subsidiary is designated as an Unrestricted Subsidiary that
is represented by the interest of the Company and its Restricted Subsidiaries
in such Subsidiary, in each case as determined in good faith by the Board of
Directors of the Company, shall be deemed to be an Investment. Such designation
will be permitted only if such Investment would be permitted at such time under
Section 4.7.


 


19

















 


The
Board of Directors may designate any Unrestricted Subsidiary to be a Restricted
Subsidiary only if:


 


(1)                                  immediately after giving effect to such
designation, the Company is able to incur at least $1.00 of additional
Indebtedness (other than Permitted Indebtedness) in compliance with Section
4.9(a); and


 


(2)                                  immediately before and immediately after
giving effect to such designation, no Default or Event of Default shall have
occurred and be continuing.


 


Any
such designation by the Board of Directors shall be evidenced to the Trustee by
promptly filing with the Trustee a copy of the Board Resolution giving effect
to such designation and an Officers’ Certificate certifying that such
designation complied with the foregoing provisions.


 


“U.S.
Government Securities” shall mean securities which are (i) direct
obligations of the United States of America for the payment of which its full
faith and credit is pledged or (ii) obligations of a person controlled or
supervised by and acting as an agency or instrumentality of the United States
of America, the payment of which is unconditionally guaranteed as a full faith
and credit obligation by the United States of America, which, in either case,
are not callable or redeemable at the option of the issuer thereof, and shall
also include a depository receipt issued by a bank or trust company as
custodian with respect to any such U.S. Government Securities or a specific
payment of interest on or principal of any such U.S. Government Securities held
by such custodian for the account of the holder of a depository receipt.


 


“U.S.
Person” means any U.S. Person as defined in Regulation S.


 


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


 


“Wholly
Owned Restricted Subsidiary” of any Person means any Wholly Owned
Subsidiary of such Person which at the time of determination is a Restricted
Subsidiary of such Person.


 


“Wholly
Owned Subsidiary” of any Person means any Subsidiary of such Person of
which all the outstanding voting securities (other than in the case of a
foreign Subsidiary, directors’ qualifying shares or an immaterial amount of
shares required to be owned by other Persons pursuant to applicable law) are
owned by such Person or any Wholly Owned Subsidiary of such Person.


 


Section 1.2.                                   Other Definitions.


 


	
  Term

  	
   

  	
  Defined in Section

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  “Act

  	
   

  	
  1.5(a)

  	
   

  
	
  “Adjusted
  Net Assets”

  	
   

  	
  10.5

  	
   

  
	
  “Affiliate
  Transaction”

  	
   

  	
  4.11

  	
   

  
	
  “Agent
  Members”

  	
   

  	
  2.6(b)

  	
   

  
	
  “Certificated
  Notes”

  	
   

  	
  2.1

  	
   

  
	
  “Change
  of Control Offer”

  	
   

  	
  4.15(a)

  	
   

  
	
  “Change
  of Control Offer Period”

  	
   

  	
  3.9(b)

  	
   

  



 


20

















 


	
  Term

  	
   

  	
  Defined in Section

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  “Change
  of Control Payment Date”

  	
   

  	
  3.9(b)

  	
   

  
	
  “Covenant
  Defeasance”

  	
   

  	
  8.3

  	
   

  
	
  “Event
  of Default”

  	
   

  	
  6.1

  	
   

  
	
  “Foreign
  Person”

  	
   

  	
  2.6(c)

  	
   

  
	
  “Funding
  Guarantor”

  	
   

  	
  10.5

  	
   

  
	
  “Global
  Notes”

  	
   

  	
  2.1

  	
   

  
	
  “incur”

  	
   

  	
  4.9(a)

  	
   

  
	
  “Institutional
  Accredited Investors”

  	
   

  	
  2.1

  	
   

  
	
  “Legal
  Defeasance”

  	
   

  	
  8.2

  	
   

  
	
  “Net
  Proceeds Offer”

  	
   

  	
  4.10

  	
   

  
	
  “Net
  Proceeds Offer Payment Date”

  	
   

  	
  4.10

  	
   

  
	
  “Net
  Proceeds Offer Trigger Date”

  	
   

  	
  4.10

  	
   

  
	
  “Offshore
  Certificated Notes”

  	
   

  	
  2.1

  	
   

  
	
  “Paying
  Agent”

  	
   

  	
  2.3

  	
   

  
	
  “Permanent
  Regulation S Global Note”

  	
   

  	
  2.1

  	
   

  
	
  “Private
  Placement Legend”

  	
   

  	
  2.6(h)

  	
   

  
	
  “Reference
  Date”

  	
   

  	
  4.7

  	
   

  
	
  “Registrar”

  	
   

  	
  2.3

  	
   

  
	
  “Regulation
  S Global Note”

  	
   

  	
  2.1

  	
   

  
	
  “Replacement
  Assets”

  	
   

  	
  4.10(a)(3)(b)

  	
   

  
	
  “Restricted
  Payment”

  	
   

  	
  4.7(a)

  	
   

  
	
  “Rule
  144A Global Note”

  	
   

  	
  2.1

  	
   

  
	
  “Special
  Redemption”

  	
   

  	
  3.8

  	
   

  
	
  “Surviving
  Entity”

  	
   

  	
  5.1

  	
   

  
	
  “Temporary
  Regulation S Global Note”

  	
   

  	
  2.1

  	
   

  
	
  “U.S.
  Certificated Notes”

  	
   

  	
  2.1

  	
   

  



 


Section 1.3.                                   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;


 


“indenture
security holder” means a Holder;


 


“indenture
to be qualified” means this Indenture;


 


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


 


“obligor”
on the Notes means the Company 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 Commission rule under the TIA have
the meanings so assigned to them.


 


21

















 


Section 1.4.                                   Rules of Construction.


 


Unless
the context otherwise requires:


 


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


 


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


 


(c)                                  “or” is not exclusive;


 


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


 


(e)                                  references to sections of or rules under the
Securities Act, the Exchange Act and the TIA shall be deemed to include
substitute, replacement and successor sections or rules adopted by the
Commission from time to time unless otherwise specified.


 


Section 1.5.                                   Acts of Holders.


 


(a)                                  Any request, demand, authorization,
direction, notice, consent, waiver or other action provided by this Indenture
to be given or taken by Holders may be embodied in and evidenced by one or more
instruments of substantially similar tenor signed by such Holders in person or
by an agent duly appointed in writing; and, except as herein otherwise
expressly provided, such action shall become effective when such instrument or
instruments are delivered to the Trustee and, where it is hereby expressly
required, to the Company. Such instrument or instruments (and the action
embodied therein and evidenced thereby) are herein sometimes referred to as the
“Act” of Holders signing or bound by such instrument or instruments. Proof
of execution of any such instrument or of a writing appointing any such agent
shall be sufficient for any purpose of this Indenture and (subject to
Section 7.1) conclusive in favor of the Trustee and the Company, if made
in the manner provided in this Section.


 


(b)                                 The fact and date of the execution by any
Person of any such instrument or writing may be proved by the affidavit of a
witness of such execution or by the certificate of any notary public or other
officer authorized by law to take acknowledgments of deeds, certifying that the
individual signing such instrument or writing acknowledged to him or her the
execution thereof. Where such execution is by an officer of a corporation or a
member of a partnership, on behalf of such corporation or partnership, such
certificate or affidavit shall also constitute sufficient proof of his or her
authority.


 


(c)                                  The ownership of Notes shall be proved by the
register maintained by the Registrar.


 


(d)                                 Any request, demand, authorization,
direction, notice, consent, waiver or other Act of the Holder of any Note shall
bind every future Holder of the same Note and the holder of every Note issued
upon the registration of transfer thereof or in exchange therefor or in lieu
thereof in respect of anything done or suffered to be done by the Trustee or
the Company in reliance thereon, whether or not notation of such action is made
upon such Note.


 


22

















 


ARTICLE II.


 


THE NOTES


 


Section 2.1.                                   Form and Dating.


 


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


 


The
terms and provisions contained in the Notes and Guarantees shall constitute,
and are hereby expressly made, a part of this Indenture, and the Company, the
Guarantors, if any, and the Trustee, by their execution and delivery of this
Indenture, expressly agree to such terms and provisions and to be bound
thereby.


 


Notes
offered and sold in reliance on Rule 144A shall be issued initially in the form
of a single permanent global Note in registered form, substantially in the form
set forth in Exhibit A (the “Rule 144A Global Note”), deposited
with DBTCA, as custodian for the Depositary, duly executed by the Company and
authenticated by the Trustee as hereinafter provided. The aggregate principal
amount of the Rule 144A Global Note may from time to time be increased or
decreased by adjustments made on the records of DBTCA, as custodian for the
Depositary or its nominee, as hereinafter provided.


 


Notes
offered and sold in offshore transactions in reliance on Regulation S shall be
issued initially in the form of a single temporary global Note in registered
form substantially in the form set forth in Exhibit A (the “Temporary
Regulation S Global Note”), deposited with DBTCA, as custodian for the
Depositary, duly executed by the Company and authenticated by the Trustee as
hereinafter provided and shall bear the legend set forth in Section 2.6(h). At
any time following 40 days after the later of the consummation of the offering
of the Notes and the Issue Date, upon receipt by DBTCA and the Company of a
duly executed certificate substantially in the form of Exhibit D(1), a
single permanent Global Note in registered form substantially in the form set
forth in Exhibit A (the “Permanent Regulation S Global Note,” and
together with the Temporary Regulation S Global Note, the “Regulation S
Global Note”) duly executed by the Company and authenticated by the Trustee
as hereinafter provided shall be deposited with DBTCA, as custodian for the
Depositary. The aggregate principal amount of the Regulation S Global Note may
from time to time be increased or decreased by adjustments made in the records
of DBTCA, as custodian for the Depositary or its nominee, as hereinafter
provided.


 


Notes
offered and sold to institutional accredited investors (as defined in
Rule 501(a)(1), (2), (3) or (7) under the Securities Act) (“Institutional
Accredited Investors”), if any, shall be issued in the form of permanent
U.S. Certificated Notes in registered form in substantially the form set forth
in Exhibit A (the “U.S. Certificated Notes”). Notes issued
pursuant to Section 2.6 in exchange for interests in the Rule 144A
Global Note or the Regulation S Global Note shall be in the form of permanent
Certificated Notes in registered form substantially in the form set forth in Exhibit A
(the “Offshore Certificated Notes”), in the case of those issued in
exchange for the Regulation S Global Note, and U.S. Certificated Notes, in the
case of those issued in exchange for the Rule 144A Global Note.


 


The
Offshore Certificated Notes and U.S. Certificated Notes are sometimes
collectively herein referred to as the “Certificated Notes.”  The Rule 144A Global Note and the
Regulation S Global Note are sometimes referred to herein as the “Global
Notes.”


 


23

















 


Section 2.2.                                   Execution and Authentication.


 


An
Officer of the Company shall sign the Notes for the Company by manual or
facsimile signature and the Notes shall be attested to by another Officer of
the Company.


 


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. Each Guarantor,
if any, shall execute a Guarantee in the manner set forth in Section 10.7.


 


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


 


The
Trustee, upon a written order of the Company signed by two Officers of the
Company, together with the other documents required by Sections 12.4 and 12.5,
shall authenticate (i) Series A Notes for original issue on the Issue
Date in the aggregate principal amount not to exceed $190.0 million and
(ii) subsequent to the Issue Date and subject to Section 4.9,
Additional Notes. The Trustee, upon written order of the Company signed by two
Officers of the Company, together with the other documents required by Sections
12.4 and 12.5, shall authenticate Series B Notes; provided that such Series B Notes
shall be issuable only upon the valid surrender for cancellation of
Series A Notes of a like aggregate principal amount in accordance with the
Exchange Offer or an exchange offer specified in any registration rights
agreement relating to Additional Notes or in connection with one or more
registered public offerings of Additional Notes. Such written order of the
Company shall specify the amount of Notes to be authenticated and the date on
which the original issue of Notes is to be authenticated. Any Additional Notes
shall be part of the same issue as the Notes being issued on the Issue Date and
will vote on all matters as one class with the Notes being issued on the Issue
Date, including, without limitation, waivers, amendments, redemptions, Change
of Control Offers and Net Proceeds Offers.


 


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


 


Section 2.3.                                   Registrar and Paying Agent.


 


The
Company shall maintain an office or agency where Notes may be presented for
registration of transfer or for exchange (“Registrar”) and an office or
agency where Notes may be presented for payment (“Paying Agent”). The
Registrar shall keep a register of the Notes and of their transfer and exchange.
At the option of the Company, payment of interest and Additional Interest (if
any) may be made by check mailed to the Holders at their addresses set forth in
the register of Holders, provided
that payment by wire transfer of immediately available funds will be required
with respect to principal, Redemption Price and Purchase Price of, and interest
and Additional Interest (if any) on, all Global Notes and all other Notes the
Holders of which shall have provided wire transfer instructions to the Trustee
or the Paying Agent at least 5 days prior to date of payment. The Company may
appoint one or more co-registrars and one or more additional paying agents. The
term “Registrar” includes any co-registrar and the term “Paying Agent” includes
any additional paying agent. The Company may change any Paying Agent or
Registrar without notice to any Holder. The Company shall notify the Trustee in
writing of the name and address of any Paying Agent not a party to this
Indenture. If the Company fails to appoint or maintain another entity as
Registrar or Paying Agent, the Trustee shall act as such. The Company or any of
its Subsidiaries may act as Paying Agent or Registrar. The Depositary shall, by
acceptance of a Global Note, agree that transfers of beneficial interests in
such Global Note may be effected only through a book-entry system maintained by
the Depositary (or its agent), and that ownership of a beneficial interest in
the Note shall be required to be reflected in a book entry.


 


24

















 


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


 


DBTCA
is hereby authorized to enter into a letter of representations with the Depositary
in the form provided by the Company and to act in accordance with such letter.


 


Section 2.4.                                   Paying Agents to Hold Money in Trust.


 


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


 


Section 2.5.                                   Holder Lists.


 


DBTCA
shall preserve in as current a form as is reasonably practicable the most
recent list available to it of the names and addresses of all Holders and shall
otherwise comply with TIA § 312(a). If the Trustee is not the Registrar,
the Company shall furnish to the Trustee at least 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 shall otherwise comply with TIA § 312(a).


 


Section 2.6.                                   Transfer and Exchange.


 


(a)                                  Transfer and Exchange Generally; Book Entry
Provisions. Upon surrender
for registration of transfer of any Note to the Registrar, and satisfaction of
the requirements for such transfer set forth in this Section 2.6, the
Company shall execute, and the Trustee shall authenticate and deliver, in the
name of the designated transferee or transferees, one or more new Notes of any
authorized denominations and of a like aggregate principal amount and bearing
such restrictive legends as may be required by this Indenture.


 


Notes
may be exchanged for other Notes of any authorized denominations and of a like
aggregate principal amount, upon surrender of the Notes to be exchanged at any
such office or agency maintained by the Company pursuant to Section 4.2. Whenever
any Notes are so surrendered for exchange, the Company shall execute, and the
Trustee shall authenticate and deliver, the Notes which the Holder making the
exchange is entitled to receive bearing registration numbers not
contemporaneously outstanding.


 


All
Notes presented or surrendered for registration of transfer or exchange shall
be duly endorsed, or be accompanied by a written instrument or instruments of
transfer in form satisfactory to the Company and the Registrar, duly executed
by the Holder thereof or his attorney duly authorized in writing. Except as
otherwise provided in this Indenture, and in addition to the requirements set
forth in the legend referred to in Section 2.6(h)(i) below, in connection
with any transfer of Transfer Restricted Securities any request for transfer
shall be accompanied by a certification to the Trustee relating to the manner
of such transfer substantially in the form of Exhibit D(2).


 


25

















 


(b)                                 Book-Entry Provisions for the Global Notes. The Rule 144A Global Note and Regulation S
Global Note initially shall (i) be registered in the name of the
Depositary or the nominee of such Depositary, (ii) be delivered to DBTCA as
Note Custodian and (iii) bear legends as set forth in Section 2.6(h).


 


Members
of, or participants in, the Depositary (“Agent Members”) shall have no
rights under this Indenture with respect to any Rule 144A Global Note or
Regulation S Global Note, as the case may be, held on their behalf by the
Depositary, or DBTCA as its custodian, or under the Rule 144A Global Note or
Regulation S Global Note, as the case may be, and the Depositary may be treated
by the Company, the Trustee and any agent of the Company or the Trustee as the
absolute owner of the Rule 144A Global Note or Regulation S Global Note, as the
case may be, for all purposes whatsoever. Notwithstanding the foregoing,
nothing herein shall prevent the Company, the Trustee or any agent of the
Company or the Trustee from giving effect to any written certification, proxy
or other authorization furnished by the Depositary or impair, as between the
Depositary and its Agent Members, the operation of customary practices
governing the exercise of the rights of a holder of any Note.


 


Transfers
of the Rule 144A Global Note and the Regulation S Global Note shall be limited
to transfers of such Rule 144A Global Note or Regulation S Global Note in
whole, but not in part, to the Depositary, its successors or their respective
nominees. Beneficial interests in the Rule 144A Global Note and the Regulation
S Global Note may be transferred in accordance with the applicable rules and
procedures of the Depositary and the provisions of this Section 2.6. The
registration of transfer and exchange of beneficial interests in a Global Note,
which does not involve the issuance of a Certificated Note, shall be effected
through the Depositary, in accordance with this Indenture (including the
restrictions on transfer set forth herein) and the procedures of the Depositary
therefor. The Trustee shall have no responsibility or liability for any act or
omission of the Depositary.


 


At
any time at the request of the beneficial holder of an interest in the Rule
144A Global Note or Permanent Regulation S Global Note to obtain a Certificated
Note, such beneficial holder shall be entitled to obtain a Certificated Note
upon written request to the Trustee and the Note Custodian in accordance with
the standing instructions and procedures existing between the Note Custodian
and Depositary for the issuance thereof. Upon receipt of any such request, the
Trustee, or the Note Custodian at the direction of the Trustee, will cause, in
accordance with the standing instructions and procedures existing between the
Depositary and the Note Custodian, the aggregate principal amount of the Rule
144A Global Note or Permanent Regulation S Global Note, as appropriate, to be
reduced by the principal amount of the Certificated Note issued upon such
request to such beneficial holder and, following such reduction, the Company
will execute and the Trustee will authenticate and deliver to such beneficial
holder (or its nominee) a Certificated Note or Certificated Notes in the
appropriate aggregate principal amount in the name of such beneficial holder
(or its nominee) and bearing such restrictive legends as may be required by
this Indenture.


 


(c)                                  Transfers to Non-QIB Institutional Accredited
Investors. The following
provisions shall apply with respect to the registration of any proposed
transfer of a Transfer Restricted Security to any Institutional Accredited
Investor that is not a QIB (other than any Person that is not a U.S. Person as
defined under Regulation S, a “Foreign Person”):


 


(i)                                     the Registrar shall register the transfer of
any Note, whether or not such Note bears the Private Placement Legend, if
(x) (A) the requested transfer is at least two years after the later of
(1) the Issue Date of the Notes and (2) the last date on which any Notes were
acquired from an Affiliate of the Company and (B) the proposed transferee has
certified in writing to the Registrar that the requested transfer is at
least two years after the later of (A) the Issue Date of the Notes and
(B) the last date on which any Notes were acquired from an Affiliate of
the Company, and has delivered legal opinions and such other information as the
Trustee and the Company may reasonably require, or (y) the proposed
transferee has delivered to the Registrar (A) a certificate substantially
in the form of Exhibit E and


 


26

















 


(B) such
certifications, legal opinions and other information as the Trustee and the
Company may reasonably request to confirm that such transaction is in
compliance with the Securities Act; and


 


(ii)                                  if the proposed transferor is an Agent Member
holding a beneficial interest in the Global Note, upon receipt by the Registrar
of (x) the documents required by clause (i), and
(y) instructions given in accordance with the Depositary’s and the Registrar’s
procedures, the Registrar shall reflect on its books and records the date and a
decrease in the principal amount of the Global Note in an amount equal to the
principal amount of the beneficial interest in the Global Note to be
transferred, and the Company shall execute, and the Trustee shall authenticate
and deliver, one or more Certificated Notes of like tenor and amount.


 


(d)                                 Transfers to QIBs. The following provisions shall apply with
respect to the registration of any proposed transfer of a Transfer Restricted
Security to a QIB (other than Foreign Persons):


 


(i)                                     if the Note to be transferred consists of
Certificated Notes or an interest in the Regulation S Global Note, the
Registrar shall register the transfer if such transfer is being made by a proposed
transferor who has checked the box provided for on a certificate substantially
in the form of Exhibit D(2) stating, or has otherwise advised the
Company and the Registrar in writing, that the sale has been made in compliance
with the provisions of Rule 144A to a transferee who is a QIB within the
meaning of Rule 144A and is aware that the sale to it is being made in
reliance on Rule 144A; and


 


(ii)                                  if the proposed transferee is an Agent
Member, and the Note to be transferred consists of Certificated Notes or an
interest in the Regulation S Global Note, upon receipt by the Registrar of
(x) the documents referred to in clause (i), and
(y) instructions given in accordance with the Depositary’s and the
Registrar’s procedures, the Registrar shall reflect on its books and records
the date and an increase in the principal amount of the Rule 144A Global
Note in an amount equal to the principal amount of the Certificated Notes or
the interest in the Regulation S Global Note, as the case may be, to be
transferred, and the Trustee shall cancel the Certificated Notes or decrease
the amount of the Regulation S Global Note so transferred.


 


(e)                                  Transfers of Interests in the Temporary
Regulation S Global Note. The
following provisions shall apply with respect to the registration of any
proposed transfer of interests in the Temporary Regulation S Global Note:


 


(i)                                     the Registrar shall register the transfer of
an interest in the Temporary Regulation S Global Certificate if
(x) the proposed transferor has delivered to the Registrar a certificate
substantially in the form of Exhibit F and the transferee shall
have delivered a certificate substantially in the form of Exhibit D(1)
stating, among other things, that the proposed transferee is a Foreign Person
or (y) the proposed transferee is a QIB and the proposed transferor has
checked the box provided for on a certificate substantially in the form of Exhibit D(2)
stating, or has otherwise advised the Company and the Registrar in writing,
that the sale has been made in compliance with the provisions of Rule 144A
to a transferee who is a QIB within the meaning of Rule 144A, and is aware
that the sale to it is being made in reliance on Rule 144A; and


 


(ii)                                  if the proposed transferee is an Agent
Member, upon receipt by the Registrar of (x) the documents referred to in
clause (i), and (y) instructions given in accordance with the
Depositary’s and the Registrar’s procedures, the Registrar shall reflect on its
books and records the date and an increase in the principal amount of the Rule 144A
Global Note in an amount equal to the principal amount of the Temporary
Regulation S Global Note to be transferred, and the Trustee, as Note
Custodian, shall decrease the amount of the Temporary Regulation S Global
Note.


 


27

















 


(f)                                    Transfers to Foreign Persons. The following provisions shall apply with
respect to any transfer of a Transfer Restricted Security to a Foreign Person:


 


(i)                                     the Registrar shall register any proposed
transfer of a Note to a Foreign Person upon receipt of a certificate
substantially in the form of Exhibit F from the proposed transferor
and such certifications, legal opinions and other information as the Trustee or
the Company may reasonably request; and


 


(ii)                                  (a) if the proposed transferor is an
Agent Member holding a beneficial interest in the Rule 144A Global Note or the
Note to be transferred consists of Certificated Notes, upon receipt by the
Registrar of (x) the documents required by clause (i), and
(y) instructions given in accordance with the Depositary’s and the
Registrar’s procedures, the Registrar shall reflect on its books and records
the date and a decrease in the principal amount of the Rule 144A Global
Note in an amount equal to the principal amount of the beneficial interest in
the Rule 144A Global Note or cancel the Certificated Notes, as the case
may be, to be transferred, and (b) if the proposed transferee is an Agent
Member, upon receipt by the Registrar of instructions given in accordance with
the Depositary’s and the Registrar’s procedures, the Registrar shall reflect on
its books and records the date and an increase in the principal amount of the
Regulation S Global Note in an amount equal to the principal amount of the
Certificated Notes to be transferred, and the Trustee shall decrease the amount
of the Rule 144A Global Note.


 


(g)                                 The Depositary. The Depositary shall be a clearing agency
registered under the Exchange Act. The Company initially appoints The
Depository Trust Company to act as Depositary with respect to the Global Notes.
Initially, the Rule 144A Global Note and the Regulation S Global Note shall be
issued to the Depositary, registered in the name of Cede & Co., as the
nominee of the Depositary, and deposited with the Note Custodian for Cede &
Co.


 


Notes
in Certificated form issued in exchange for all or a part of a Global Note
pursuant to this Section 2.6 shall be registered in such names and in such
authorized denominations as the Depositary, pursuant to instructions from its
direct or indirect participants or otherwise, shall instruct the Trustee. Upon
execution and authentication, the Trustee shall deliver such Certificated Notes
in Certificated form to the persons in whose names such Notes in Certificated
form are so registered.


 


Certificated
Notes shall be transferred to all beneficial owners in exchange for their
beneficial interests in the Rule 144A Global Note or the Permanent
Regulation S Global Note, as the case may be, if at any time:


 


(i)                                     the Depositary for the Notes notifies the
Company that the Depositary is unwilling or unable to continue as Depositary
for the Rule 144A Global Note or the Permanent Regulation S Global Note, as the
case may be, and a successor Depositary is not appointed by the Company within
90 days after delivery of such notice; or


 


(ii)                                  the Company, at its sole discretion, notifies
the Trustee in writing that it elects to cause the issuance of Certificated
Notes under this Indenture,


 


and
the Company shall execute, and the Trustee shall, upon receipt of an
authentication order in accordance with Section 2.2, authenticate and
deliver Certificated Notes in an aggregate principal amount equal to the
principal amount of the Rule 144A Global Note or the Permanent Regulation S
Global Note, as the case may be, in exchange for such Global Notes.


 


28

















 


(h)                                 Legends.


 


(i)                                     Except as permitted by the following
paragraphs (ii) and (iii), each Note certificate evidencing Global Notes
and Certificated Notes (and all Notes issued in exchange therefor or
substitution thereof) shall (x) be subject to the restrictions on transfer
set forth in this Section 2.6 (including those set forth in the legend
below) unless such restrictions on transfer shall be waived by written consent
of the Company, and the Holder of each Transfer Restricted Security, by such
Holder’s acceptance thereof, agrees to be bound by all such restrictions on
transfer and (y) bear the legend set forth below (the “Private
Placement Legend”):


 


“THIS
SECURITY HAS NOT BEEN REGISTERED UNDER THE U.S. SECURITIES ACT OF 1933, AS
AMENDED (THE “SECURITIES ACT”), AND, ACCORDINGLY, MAY NOT BE OFFERED OR SOLD
WITHIN THE UNITED STATES OR TO, OR FOR THE ACCOUNT OR BENEFIT OF, U.S. PERSONS
EXCEPT AS SET FORTH BELOW. BY ITS ACQUISITION HEREOF, THE HOLDER (1) REPRESENTS
THAT (A) IT IS A “QUALIFIED INSTITUTIONAL BUYER” (AS DEFINED IN RULE 144A UNDER
THE SECURITIES ACT), (B) IT IS NOT A U.S. PERSON AND IS ACQUIRING THIS SECURITY
IN AN OFFSHORE TRANSACTION IN COMPLIANCE WITH RULE 904 UNDER THE SECURITIES ACT
OR (C) IT IS AN ACCREDITED INVESTOR (AS DEFINED IN RULE 501(a)(1), (2), (3) OR
(7) UNDER THE SECURITIES ACT) (AN “ACCREDITED INVESTOR”), (2) AGREES THAT IT
WILL NOT WITHIN TWO YEARS AFTER THE ORIGINAL ISSUANCE OF THIS SECURITY RESELL
OR OTHERWISE TRANSFER THIS SECURITY EXCEPT (A) TO THE COMPANY OR ANY SUBSIDIARY
THEREOF, (B) INSIDE THE UNITED STATES TO A QUALIFIED INSTITUTIONAL BUYER IN
COMPLIANCE WITH RULE 144A UNDER THE SECURITIES ACT, (C) INSIDE THE UNITED
STATES TO AN ACCREDITED INVESTOR THAT, PRIOR TO SUCH TRANSFER, FURNISHES (OR
HAS FURNISHED ON ITS BEHALF BY A U.S. BROKER-DEALER) TO THE TRUSTEE A SIGNED
LETTER CONTAINING CERTAIN REPRESENTATIONS AND AGREEMENTS RELATING TO THE
RESTRICTIONS ON TRANSFER OF THIS SECURITY (THE FORM OF WHICH LETTER CAN BE
OBTAINED FROM THE TRUSTEE FOR THIS SECURITY), (D) OUTSIDE THE UNITED STATES IN
AN OFFSHORE TRANSACTION IN COMPLIANCE WITH RULE 904 UNDER THE SECURITIES ACT
(IF AVAILABLE), (E) PURSUANT TO THE EXEMPTION FROM REGISTRATION PROVIDED BY
RULE 144 UNDER THE SECURITIES ACT (IF AVAILABLE), (F) IN ACCORDANCE WITH
ANOTHER EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT (AND
BASED UPON AN OPINION OF COUNSEL REASONABLY SATISFACTORY TO THE COMPANY IF THE
COMPANY SO REQUESTS), OR (G) PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT
UNDER THE SECURITIES ACT AND (3) AGREES THAT IT WILL GIVE TO EACH PERSON TO
WHOM THIS SECURITY IS TRANSFERRED A NOTICE SUBSTANTIALLY TO THE EFFECT OF THIS
LEGEND. IN CONNECTION WITH ANY TRANSFER OF SECURITY WITHIN TWO YEARS AFTER THE
ORIGINAL ISSUANCE OF THIS SECURITY, IF THE PROPOSED TRANSFEREE IS AN ACCREDITED
INVESTOR, THE HOLDER MUST, PRIOR TO SUCH TRANSFER, FURNISH TO THE TRUSTEE AND
THE COMPANY SUCH CERTIFICATIONS, LEGAL OPINIONS OR OTHER INFORMATION AS EITHER
OF


 


29

















 


THEM
MAY REASONABLY REQUIRE TO CONFIRM THAT SUCH TRANSFER IS BEING MADE PURSUANT TO
AN EXEMPTION FROM, OR IN A TRANSACTION NOT SUBJECT TO, THE REGISTRATION
REQUIREMENTS OF THE SECURITIES ACT. AS USED HEREIN, THE TERMS “OFFSHORE
TRANSACTION,” “UNITED STATES” AND “U.S. PERSON” HAVE THE MEANING GIVEN TO THEM
BY REGULATION S UNDER THE SECURITIES ACT.”


 


(ii)                                  Upon any sale or transfer of a Transfer
Restricted Security (including any Transfer Restricted Security represented by
a Global Note) pursuant to Rule 144 under the Securities Act or pursuant to an
effective registration statement under the Securities Act:


 


(a)                                  in the case of any Transfer Restricted
Security that is a Certificated Note, the Registrar shall permit the Holder
thereof to exchange such Transfer Restricted Security for a Certificated Note
that does not bear the legend set forth in (i) above and rescind any
restriction on the transfer of such Transfer Restricted Security; and


 


(b)                                 in the case of any Transfer Restricted
Security represented by a Global Note, such Transfer Restricted Security shall
not be required to bear the legend set forth in (i) above, but shall continue
to be subject to the provisions of Section 2.6(b); provided, however,
that with respect to any request for an exchange of a Transfer Restricted
Security that is represented by a Global Note for a Certificated Note that does
not bear the legend set forth in (i) above, which request is made in reliance
upon Rule 144, the Holder thereof shall certify in writing to the Registrar
that such request is being made pursuant to Rule 144 (such certifications to be
substantially in the form of Exhibit D(2));


 


in
each case, upon the delivery by the transferor of such opinions and other
information as the Trustee or the Company shall reasonably request.


 


(iii)                               Notwithstanding the foregoing, upon
consummation of the Exchange Offer, the Company shall issue and, upon receipt
of an authentication order in accordance with Section 2.2, the Trustee
shall authenticate Series B Notes in exchange for Series A Notes accepted for
exchange in the Exchange Offer, which Series B Notes shall not bear the legend
set forth in (i) above, and the Registrar shall rescind any restriction on the
transfer of such Series A Notes, in each case unless the Company has notified
the Registrar in writing that the Holder of such Series A Notes is either (A) a
broker-dealer, (B) a Person participating in the distribution of the Series A
Notes or (C) a Person who is an affiliate (as defined in Rule 144A) of the
Company.


 


(iv)                              Each Global Note, whether or not a Transfer
Restricted Security, shall also bear the following legend on the face thereof:


 


THIS
NOTE IS A GLOBAL NOTE WITHIN THE MEANING OF THE INDENTURE HEREINAFTER REFERRED
TO AND IS REGISTERED IN THE NAME OF A DEPOSITARY OR A NOMINEE OF A DEPOSITARY
OR A SUCCESSOR DEPOSITARY. THIS NOTE IS NOT EXCHANGEABLE FOR NOTES REGISTERED
IN THE NAME OF A PERSON OTHER THAN THE DEPOSITARY OR ITS NOMINEE EXCEPT IN THE
LIMITED CIRCUMSTANCES DESCRIBED IN THE INDENTURE, AND NO TRANSFER OF THIS
SECURITY (OTHER THAN A TRANSFER OF THIS SECURITY AS A WHOLE BY THE DEPOSITARY
TO A NOMINEE OF THE DEPOSITARY OR BY A NOMINEE OF THE DEPOSITARY TO THE
DEPOSITARY OR ANOTHER NOMINEE OF THE DEPOSITARY) MAY BE REGISTERED EXCEPT IN
THE LIMITED CIRCUMSTANCES DESCRIBED IN THE INDENTURE.


 


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UNLESS
THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY
TRUST COMPANY, A NEW YORK CORPORATION (“DTC”), TO THE COMPANY OR ITS AGENT FOR
REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY CERTIFICATE ISSUED IS
REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED
BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE &
CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF
DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO
ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO.,
HAS AN INTEREST HEREIN.


 


(v)                                 Any Global Note may be endorsed with or have
incorporated in the text thereof such legends or recitals or changes not
inconsistent with the provisions of this Indenture as may be required by the
Note Custodian, the Depositary or by the National Association of Securities
Dealers, Inc. in order for the Notes to be tradable on The PORTAL Market or
tradable on Euroclear or Clearstream or as may be required for the Notes to be
tradable on any other market developed for trading of securities pursuant to
Rule 144A or Regulation S under the Securities Act or required to comply with
any applicable law or any regulation thereunder or with the rules and
regulations of any securities exchange or automated quotation system upon which
the Notes may be listed or traded or to conform with any usage with respect
thereto, or to indicate any special limitations or restrictions to which any
particular Notes are subject.


 


(i)                                     Cancellation and/or Adjustment of Global
Notes. At such time as all
beneficial interests in Global Notes have been exchanged for Certificated
Notes, redeemed, repurchased or cancelled, all Global Notes shall be returned
to or retained and cancelled by DBTCA in accordance with Section 2.11. At
any time prior to such cancellation, if any beneficial interest in a Global
Note is exchanged for Certificated Notes, redeemed, repurchased or cancelled,
the principal amount of Notes represented by such Global Notes shall be reduced
accordingly and an endorsement shall be made on such Global Note by the Trustee
or the Note Custodian, at the direction of the Trustee, to reflect such
reduction. In the event of any transfer of any beneficial interest between the
Rule 144A Global Note and the Regulation S Global Note in accordance with the
standing procedures and instructions between the Depositary and the Note
Custodian and the transfer restrictions set forth herein, the aggregate
principal amount of each of the Rule 144A Global Note and the Regulation S
Global Note shall be appropriately increased or decreased, as the case may be,
and an endorsement shall be made on each of the Rule 144A Global Note and the
Regulation S Global Note by the Trustee or the Note Custodian, at the direction
of the Trustee, to reflect such reduction or increase.


 


(j)                                     General Provisions Relating to Transfers and
Exchanges.


 


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


 


(ii)                                  No service charge shall be made to a Holder
for any registration of transfer or exchange, but the Company may require
payment of a sum sufficient to cover any transfer tax or similar governmental
charge payable in connection therewith (other than any such transfer taxes or
similar governmental charge payable upon exchange or transfer pursuant to
Section 2.6).


 


(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.


 


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


 


(v)                                 Neither the Company nor the Registrar shall
be required:


 


(a)                                  to issue, to register the transfer of or to
exchange Notes during a period beginning at the opening of business 15 days
before the day of any selection of Notes for redemption under Section 3.2
and ending at the close of business on the day of selection; or


 


(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 of 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 all payments with respect to such Notes, and
neither the Trustee, any Agent nor the Company shall be affected by notice to
the contrary.


 


(vii)                           The Trustee shall authenticate Certificated
Notes and Global Notes in accordance with the provisions of Section 2.2.


 


Section 2.7.                                   Replacement Notes.


 


If
any mutilated Note is surrendered to the Trustee or either the Company or the
Trustee receives evidence to its satisfaction of the destruction, loss or theft
of any Note, the Company shall issue and the Trustee, upon receipt of an
authentication order in accordance with Section 2.2, shall authenticate a
replacement Note if the Trustee’s requirements for replacement of Notes are met.
If required by the Trustee or the Company, an indemnity bond must be supplied
by the Holder that is sufficient in the judgment of the Trustee and the Company
to protect the Company, the Trustee, any Agent and any authenticating agent
from any loss that any of them may suffer if a Note is replaced. The Trustee
and the Company may charge the Holder for their expenses in replacing a Note.


 


Every
replacement Note is an additional obligation of the Company and shall be
entitled to all of the benefits of this Indenture equally and proportionately
with all other Notes duly issued hereunder.


 


Section 2.8.                                   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 or the Note
Custodian in accordance with the provisions hereof, and those described in this
Section as not outstanding. Except as set forth in Section 2.9, 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 2.7, it shall cease to be
outstanding unless the Trustee receives proof satisfactory to it that the
replaced Note is held by a bona fide purchaser for value.


 


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If
the principal amount of any Note is considered paid under Section 4.1, it
ceases to be outstanding and interest on it ceases to accrue.


 


If
the Paying Agent (other than the Company, a Subsidiary or an Affiliate of any
thereof) holds, on a Redemption Date or maturity date, money sufficient to pay
Notes payable on that date, then on and after that date such Notes shall be
deemed to be no longer outstanding and shall cease to accrue interest.


 


Section 2.9.                                   Treasury Notes.


 


In
determining whether the Holders of the required principal amount of Notes have
concurred in any direction, waiver or consent, Notes owned by the Company or by
any Affiliate thereof 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 of consent, only Notes that a Responsible
Officer of the Trustee knows are so owned shall be so disregarded. The Company
agrees to notify the Trustee of the existence of any such treasury Notes or
Notes owned by the Company or an Affiliate thereof.


 


Section 2.10.                             Temporary Notes.


 


Until
Certificated Notes are ready for delivery, the Company may prepare and the
Trustee, upon receipt of an authentication order in accordance with
Section 2.2, shall authenticate temporary Notes. Temporary Notes shall be
substantially in the form of Certificated Notes, but may have such variations
as the Company considers appropriate for temporary Notes and as shall be
reasonably acceptable to the Trustee. Without unreasonable delay, the Company
shall prepare and the Trustee shall authenticate Certificated Notes in exchange
for temporary Notes.


 


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


 


Section 2.11.                             Cancellation.


 


The
Company at any time may deliver Notes to the Trustee for cancellation. The
Registrar and Paying Agent shall forward to the Trustee any Notes surrendered
to them for registration of transfer, exchange or payment. The Trustee and no
one else shall cancel all Notes surrendered for registration of transfer,
exchange, payment, replacement or cancellation and shall destroy all canceled
Notes in accordance with the Trustee’s usual procedures. The Trustee shall
maintain a record of the destruction of all canceled Notes. Certification of
the destruction of all canceled Notes shall be delivered to the Company. The
Company may not issue new Notes to replace Notes that have been paid or that
have been delivered to the Trustee for cancellation.


 


Section 2.12.                             Defaulted Interest.


 


If
the Company defaults in a payment of interest on the Notes, the Company 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 4.1. The Company shall notify the Trustee in
writing of the amount of defaulted interest proposed to be paid on each Note
and the date of the proposed payment. The Company shall fix or cause to be
fixed each such special record date and payment date, provided that no such special record date
shall be less than 10 days prior to the related payment date for such defaulted
interest. At least 15 days before the special record date, the Company (or,
upon the written request of the Company, the Trustee in the name and at the
expense of the Company) shall mail or cause to be mailed to Holders a notice
that states the special record date, the related payment date and the amount of
such interest to be paid.


 


33

















 


Section 2.13.                             Persons Deemed Owners.


 


Prior
to due presentment of a Note for registration of transfer and subject to
Section 2.12, the Company, the Trustee, any Paying Agent, any co-registrar
and any Registrar may deem and treat the person in whose name any Note shall be
registered upon the register of Notes kept by the Registrar as the absolute
owner of such Note (whether or not such Note shall be overdue and
notwithstanding any notation of the ownership or other writing thereon made by
anyone other than the Company, any co-registrar or any Registrar) for the
purpose of receiving all payments with respect to such Note and for all other
purposes, and none of the Company, the Trustee, any Paying Agent, any
co-registrar or any Registrar shall be affected by any notice to the contrary.


 


Section 2.14.                             CUSIP Numbers.


 


The
Company in issuing the Notes may use a “CUSIP” number, and if so, the Trustee
shall use the CUSIP number in notices of redemption or exchange as a
convenience to Holders; provided
that any such notice may state that no representation is made as to the
correctness or accuracy of the CUSIP number printed in the notice or on the
Notes, and that reliance may be placed only on the other identification numbers
printed on the Notes. The Company shall notify the Trustee of any change to the
CUSIP numbers.


 


Section 2.15.                             Designation.


 


The
Indebtedness evidenced by the Notes is hereby irrevocably designated as “senior
indebtedness” or such other term denoting seniority for the purposes of any
future Indebtedness of the Company which the Company makes subordinate to any
senior indebtedness or such other term denoting seniority.


 


ARTICLE III.


 


REDEMPTION AND REPURCHASE


 


Section 3.1.                                   Notices to Trustee.


 


If
the Company elects to redeem Notes pursuant to the provisions of
Section 3.8, it shall furnish to the Trustee, at least 30 days but not
more than 60 days before the Redemption Date, an Officers’ Certificate setting
forth the Section of this Indenture pursuant to which the redemption shall
occur, the Redemption Date, the principal amount of Notes to be redeemed and
the Redemption Price.


 


If
the Company is required to offer to repurchase Notes pursuant to the provisions
of Section 4.10 or 4.15, it shall notify the Trustee in writing, at least
30 days but not more than 60 days before the Purchase Date, of the Section of
this Indenture pursuant to which the repurchase shall occur, the Purchase Date,
the principal amount of Notes required to be repurchased and the Purchase Price
and shall furnish to the Trustee an Officers’ Certificate to the effect that
(a) the Company is required to make or has made a Net Proceeds Offer or a
Change of Control Offer, as the case may be, and (b) the conditions set
forth in Section 4.10 or 4.15, as the case may be, have been satisfied.


 


If
the Registrar is not the Trustee, the Company shall, concurrently with each
notice of redemption or repurchase, cause the Registrar to deliver to the
Trustee a certificate (upon which the Trustee may rely) setting forth the
principal amounts of Notes held by each Holder.


 


Section 3.2.                                   Selection of Notes.


 


Except
as set forth below, if less than all of the Notes are to be redeemed, the
Trustee shall select the Notes or portions thereof to be redeemed in compliance
with the requirements of the national securities


 


34

















 


exchange,
if any, on which the Notes are listed or, if the Notes are not then listed on a
national securities exchange, on a pro rata
basis, by lot or by such method
as DBTCA shall deem fair and appropriate. In the event of partial redemption by
lot, the particular Notes or portions thereof to be redeemed shall be selected,
unless otherwise provided herein, not less than 30 nor more than 60 days prior
to the Redemption Date by the Trustee from the outstanding Notes not previously
called for redemption.


 


If
less than all of the Notes tendered are to be repurchased pursuant to the
provisions of Section 4.10, DBTCA shall select the Notes or portions
thereof to be repurchased in compliance with Section 4.10, as applicable. In
the event of partial repurchase by lot, the particular Notes or portions
thereof to be repurchased shall be selected at the close of business of the
last Business Day prior to the Purchase Date. If less than all of the Notes
tendered are to be redeemed pursuant to the provisions of Section 3.8, DBTCA
shall select the Notes only pro rata
or on as nearly a pro rata basis
as is practicable (subject to DTC procedures) or by such other method as may be
required by law.


 


DBTCA
shall promptly notify the Company in writing of the Notes or portions thereof
selected for redemption or repurchase and, in the case of any Note selected for
partial redemption or repurchase, the principal amount thereof to be redeemed
or repurchased. Notes and portions thereof selected shall be in amounts of
$1,000 or integral multiples of $1,000; except that if all of the Notes of a
Holder are to be redeemed, the entire outstanding amount of Notes held by such
Holder, even if not a multiple of $1,000, shall be redeemed. No Notes of a
principal amount of $1,000 or less shall be redeemed in part.


 


Section 3.3.                                   Notice of Optional or Special Redemption.


 


In
the event Notes are to be redeemed pursuant to Section 3.8, at least 30
days but not more than 60 days before the Redemption Date, the Company shall
mail by first-class mail a notice of redemption to each Holder at its
registered address whose Notes are to be redeemed in whole or in part, with a
copy to the Trustee.


 


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


 


(a)                                  the Redemption Date;


 


(b)                                 the Redemption Price;


 


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


 


(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, Additional
Interest, if any, and, unless the Redemption Date is after a record date and/or
before the succeeding interest payment date, accrued interest thereon to the
Redemption Date;


 


(f)                                    that, unless the Company defaults in making
the redemption payment, interest and any Additional Interest on Notes called
for redemption will cease to accrue on and after the Redemption Date, and the
only remaining right of the Holders of such Notes is to receive payment of the
Redemption Price, any Additional Interest and, unless the Redemption Date is
after a record date and/or before the succeeding interest payment date, accrued
interest thereon to the Redemption Date upon surrender to the Paying Agent of
the Notes redeemed;


 


35

















 


(g)                                 if fewer than all the Notes are to be
redeemed, the identification of the particular Notes (or portions thereof) to
be redeemed, as well as the aggregate principal amount of the Notes to be
redeemed and the aggregate principal amount of Notes to be outstanding after
such partial redemption; and


 


(h)                                 the section of the Notes pursuant to which
the Notes called for redemption are being redeemed.


 


At
the Company’s request, the Trustee shall give the notice of redemption in the
Company’s name and at its expense; provided
that the Company shall deliver to the Trustee, at least 35 days prior to the
Redemption Date, an Officers’ Certificate requesting that the Trustee give such
notice and setting forth the information to be stated in such notice as
provided in the preceding paragraph.


 


Section 3.4.                                   Effect of Notice of Redemption.


 


Once
notice of redemption is mailed, Notes or portions thereof called for redemption
become due and payable on the Redemption Date at the Redemption Price. Upon
surrender to any Paying Agent, such Notes or portions thereof shall be paid at
the Redemption Price, plus Additional Interest, if any, and accrued
interest to the Redemption Date; provided,
however, that installments of
interest which are due and payable on or prior to the Redemption Date shall be
payable to the Holders of such Notes, registered as such, at the close of
business on the relevant record date for the payment of such installment of
interest.


 


Section 3.5.                                   Deposit of Redemption Price or Purchase Price.


 


On
or before 10:00 A.M. New York City time on each Redemption Date or
Purchase Date, the Company shall irrevocably deposit with the Trustee or with
the Paying Agent money sufficient to pay the aggregate amount due on all Notes
to be redeemed or repurchased on that date, including without limitation any
accrued and unpaid interest and Additional Interest, if any, to the Redemption
Date or Purchase Date. The Company, the Trustee or the Paying Agent shall
promptly return to the Company any money not required for that purpose.


 


Unless
the Company defaults in making such payment, interest and Additional Interest,
if any, on the Notes to be redeemed or repurchased will cease to accrue on the
applicable Redemption Date or Purchase Date, whether or not such Notes are
presented for payment. If any Note called for redemption shall not be so paid
upon surrender because of the failure of the Company to comply with the preceding
paragraph, interest will be paid on the unpaid principal, from the applicable
Redemption Date or Purchase Date until such principal is paid, and on any
interest not paid on such unpaid principal, in each case at the rate provided
in the Notes and in Section 4.1.


 


Section 3.6.                                   Notes Redeemed or Repurchased in Part.


 


Upon
surrender of a Note that is redeemed or repurchased in part, the Company shall
issue and the Trustee shall authenticate for the Holder at the expense of the
Company a new Note equal in principal amount to portion of the Note surrendered
that is not to be redeemed or repurchased.


 


Section 3.7.                                   Optional Redemption.


 


Except
as described in Section 3.8 below, the Notes are not redeemable prior to their
Stated Maturity.


 


36














 


Section 3.8.                                   Special Redemption.


 


At
any time or from time to time, in the event the Company completes one or more
Equity Offerings on or before August 1, 2009, the Company may, at its option,
use the net cash proceeds from any such Equity Offerings to redeem up to 35% of
the principal amount of the Notes (a “Special Redemption”) at a
Redemption Price of 100% of the principal amount thereof, plus a premium equal
to the rate per annum on the Notes applicable on the Redemption Date, together
with accrued and unpaid interest thereon, if any, to the Redemption Date, provided that (1) at least 65% of the
principal amount of the Notes issued hereunder remains outstanding immediately
after each such Special Redemption; and (2) such Special Redemption shall
occur not more than 90 days after the date of the closing of the applicable
Equity Offering. Any redemption pursuant to this Section 3.8 shall be made
pursuant to the provisions of Sections 3.1 through 3.6.


 


Section 3.9.                                   Repurchase upon Change of Control Offer.


 


(a)                                  In the event that, pursuant to
Section 4.15, the Company shall be required to commence a Change of
Control Offer, it shall follow the procedures specified in this Section 3.9.


 


(b)                                 The Change of Control Offer shall remain open
for a period from the date of the mailing of the notice of the Change of
Control Offer described in paragraph (c) until a date determined by the Company
which is at least 30 but no more than 60 days from the date of mailing of such
notice and no longer, except to the extent that a longer period is required by
applicable law (the “Change of Control Offer Period”). On the Purchase
Date, which shall be no earlier than 30 days prior to the last day of the
Change of Control Offer Period and no later than such last day, the Company
shall purchase the principal amount of Notes properly tendered in response to
the Change of Control Offer. Payment for any Notes so purchased shall be made
in the same manner as interest payments are made.


 


(c)                                  Within 45 days following any Change of
Control, the Company shall send, by first class mail, a notice to the Trustee
and each of the Holders. The notice shall contain all instructions and
materials necessary to enable such Holders to tender Notes pursuant to the
Change of Control Offer. The Change of Control Offer shall be made to all
Holders. The notice, which shall govern the terms of the Change of Control
Offer, shall state:


 


(1)                                  the transaction or transactions that
constitute the Change of Control, providing information, to the extent publicly
available, regarding the Person or Persons acquiring control, and stating that
the Change of Control Offer is being made pursuant to this Section 3.9 and
Section 4.15 and that, to the extent lawful, all Notes properly tendered
will be accepted for payment;


 


(2)                                  the Purchase Price, the last day of the
Change of Control Offer Period, and the Purchase Date which must be no earlier
than 30 days nor later than 60 days from the date such notice is mailed, other
than as may be required by law (the “Change of Control Payment Date”);


 


(3)                                  that any Note not properly tendered or
otherwise not accepted for repurchase will continue to accrue interest and
Additional Interest, if any;


 


(4)                                  that, unless the Company defaults in the
payment of the amount due on the Purchase Date, all Notes or portions thereof
accepted for repurchase pursuant to the Change of Control Offer shall cease to
accrue interest and Additional Interest, if any, after the Change of Control
Payment Date;


 


(5)                                  that Holders electing to have any Notes
purchased pursuant to the Change of Control Offer will be required to surrender
the Notes, with the form entitled Option of Holder to Elect Purchase on the
reverse of the Notes completed, or transfer by book-entry transfer, to the
Company, a Depositary,


 


37

















 


if
appointed by the Company, or a Paying Agent at the address specified in the
notice not later than the third Business Day preceding the Purchase Date;


 


(6)                                  that Holders will 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 Change of Control Offer
Period, a telegram, facsimile transmission or letter setting forth the name of
the Holder, the principal amount of Notes delivered for repurchase, and a
statement that such Holder is withdrawing his election to have the Notes
redeemed in whole or in part; and


 


(7)                                  that Holders whose Notes are being
repurchased only in part will be issued new Notes equal in principal amount to
the portion of the Notes tendered (or transferred by book-entry transfer) that
is not to be repurchased, which portion must be equal to $1,000 in principal
amount or an integral multiple thereof.


 


(d)                                 On or before 10:00 A.M. New York City
time on the Purchase Date, the Company shall to the extent lawful,
(i) accept for payment all Notes or portions thereof properly tendered
pursuant to the Change of Control Offer, (ii) deposit with the Paying Agent an
amount equal to the Purchase Price, together with accrued and unpaid interest
and Additional Interest, if any, thereon to the Purchase Date in respect of all
Notes or portions thereof so tendered and accepted for repurchase 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 repurchased by the Company. The Paying Agent
shall promptly (but in any case not later than five days after the Purchase
Date) mail to each Holder of Notes so repurchased the amount due in connection
with such Notes, and the Company shall promptly issue a new Note, and the
Trustee, upon written request from the Company in the form of an Officers’
Certificate shall authenticate and mail or deliver (or cause to transfer by
book entry) to each relevant Holder a new Note, in a principal amount equal to
any unpurchased portion of the Notes surrendered to the Holder thereof; provided that each such new Note shall be
in a principal amount of $l,000 or an integral multiple thereof. The Company
shall publicly announce the results of the Change of Control Offer on or as
soon as practicable after the Purchase Date.


 


(e)                                  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 and Additional Interest, if any, in each case to
the Purchase Date, 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 pursuant to the Change of Control Offer.


 


Section 3.10.                             Repurchase upon Application of Net Proceeds.


 


(a)                                  In the event that, pursuant to
Section 4.10, the Company shall be required to commence a Net Proceeds
Offer, it shall follow the procedures specified in this Section 3.10.


 


(b)                                 The notice of a Net Proceeds Offer shall
contain all instructions and materials necessary to enable such Holders to
tender Notes pursuant to the Net Proceeds Offer. Each Net Proceeds Offer will
be mailed to all record Holders as shown on the register of Holders within 30
days following the Net Proceeds Offer Trigger Date, with a copy to the Trustee,
and shall comply with the procedures set forth in this Indenture. Upon
receiving notice of the Net Proceeds Offer, Holders may elect to tender their
Notes in whole or in part in integral multiples of $1,000 in exchange for cash.
A Net Proceeds Offer shall remain open for a period of 20 Business Days or such
longer period as may be required by law. Upon the expiration of that period,
the Company shall promptly (but in any event within three Business Days
following such expiration) purchase the Notes and any such other pari passu
Indebtedness properly tendered in accordance with this Section 3.10 and Section
4.10. The notice, which shall govern the terms of the Net Proceeds Offer, shall
state:


 


38

















 


(1)                                  that the Net Proceeds Offer is being made
pursuant to this Section 3.10 and Section 4.10;


 


(2)                                  the Net Proceeds Offer Amount, the Purchase
Price and the Purchase Date;


 


(3)                                  that any Note not properly tendered or
otherwise not accepted for repurchase shall continue to accrue interest and
Additional Interest, if any;


 


(4)                                  that, unless the Company defaults in the payment
of the amount due on the Purchase Date, all Notes or portions thereof accepted
for repurchase pursuant to the Net Proceeds Offer shall cease to accrue
interest and Additional Interest, if any, after the Purchase Date;


 


(5)                                  that Holders electing to have any Notes
repurchased pursuant to any Net Proceeds Offer shall be required to tender the
Notes, with the form entitled Option of Holder to Elect Purchase on the reverse
of the Notes 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 prior to the close of business on the third Business
Day preceding the Purchase Date;


 


(6)                                  that Holders will 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 Purchase Date, a telegram, facsimile
transmission or letter setting forth the name of the Holder, the principal
amount of the Notes delivered for repurchase and a statement that such Holder
is withdrawing his election to have such Notes repurchased in whole or in part;
and


 


(7)                                  that, to the extent Holders properly tender
Notes (along with any other pari passu Indebtedness of the Company properly
tendered) in an amount exceeding the Net Proceeds Offer Amount, the tendered
Notes will be purchased pro rata
based on the aggregate amounts of Notes and other pari passu Indebtedness of
the Company properly tendered (and the Trustee shall select the tendered Notes
of tendering Holders pro rata
based on the amount of Notes and other pari passu Indebtedness of the Company
properly tendered).


 


(c)                                  On or before 10:00 A.M. New York City
time on the Purchase Date, the Company shall to the extent lawful,
(i) accept for payment, pro rata
in accordance with this Indenture to the extent necessary, the Net Proceeds
Offer Amount of Notes or portions thereof properly tendered pursuant to the Net
Proceeds Offer (along with any other pari passu Indebtedness of the Company
properly tendered), or if less than the Net Proceeds Offer Amount has been
tendered, all Notes properly tendered, (ii) deposit with the Paying Agent
an amount equal to the Purchase Price, plus accrued and unpaid interest
and Additional Interest, if any, thereon to the Purchase Date in respect of all
Notes or portions thereof so tendered and accepted for repurchase 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 repurchased by the Company. The
Paying Agent shall promptly (but in any case not later than five days after the
Purchase Date) mail to each Holder of Notes so repurchased the amount due in
connection with such Notes, and the Company shall promptly issue a new Note,
and the Trustee, upon written request from the Company in the form of an
Officers’ Certificate shall authenticate and mail or deliver such new Note to
such Holder, in a principal amount equal to any unpurchased portion to the
Holder thereof; provided that
each such new Note shall be in a principal amount of $1,000 or an integral
multiple thereof. The Company shall publicly announce the results of the Net
Proceeds Offer on or as soon as practicable after the Purchase Date.


 


(d)                                 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 and Additional Interest, if any, in each case to
the Purchase


 


39

















 


Date, 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 to the Net
Proceeds Offer.


 


ARTICLE IV.


 


COVENANTS


 


Section 4.1.                                   Payment of Principal and Interest.


 


(a)                                  The Company shall pay or cause to be paid the
principal, Redemption Price and Purchase Price of, and interest and Additional
Interest (if any) on, the Notes on the dates, in the amounts and in the manner
provided herein and in the Notes. Principal, Redemption Price, Purchase Price
and interest shall be considered paid on the date due if the Paying Agent, if
other than the Company, holds as of 10:00 A.M. New York City time on the
due date money deposited by the Company in immediately available funds and
designated for and sufficient to pay the aggregate amount then due. The Company
shall pay all Additional Interest, if any, on the dates, in the amounts and in
the manner set forth in the Registration Rights Agreement.


 


(b)                                 The Company shall pay interest (including
post-petition interest in any proceeding under any Bankruptcy Law) on overdue
principal, Redemption Price and Purchase Price at the rate equal to 2% per
annum in excess of the then applicable interest rate on the Notes to the extent
lawful; it shall pay interest (including post-petition interest in any
proceeding under any Bankruptcy Law) on overdue installments of interest and
Additional Interest (without regard to any applicable grace period) at the same
rate to the extent lawful.


 


Section 4.2.                                   Maintenance of Office or Agency.


 


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


 


(b)                                 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 obligations to
maintain an office or agency in the Borough of Manhattan, the City of New York,
for such purposes. The Company shall give prompt written notice to the Trustee
of any such designation or rescission and of any change in the location of any
such other office or agency.


 


(c)                                  The Company hereby designates the Corporate
Trust Office as one such office or agency of the Company in accordance with
Section 2.3. The Trustee may resign such agency at any time by giving
written notice to the Company no later than 30 days prior to the effective date
of such resignation.


 


Section 4.3.                                   Reports.


 


(a)                                  Whether or not required by the rules and
regulations of the Commission, so long as any Notes are outstanding, the
Company will furnish the Trustee, on behalf of the Holders of the Notes:


 


40

















 


(1)                                  all quarterly and annual financial
information that would be required to be contained in a filing with the
Commission 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” that describes the financial condition and results
of operations of the Company and its consolidated Subsidiaries (showing in
reasonable detail, either on the face of the financial statements or in the
footnotes thereto and in “Management’s Discussion and Analysis of Financial
Condition and Results of Operations,” the financial condition and results of
operations of the Company and its Restricted Subsidiaries separate from the
financial condition and results of operations of the Unrestricted Subsidiaries
of the Company, if any) and, with respect to the annual information only, a
report thereon by the Company’s certified independent accountants; and


 


(2)                                  all current reports that would be required to
be filed with the Commission on Form 8-K if the Company were required to file
such reports,


 


in
each case within the time periods specified in the Commission’s rules and
regulations. The Company shall at all times comply with TIA § 314(a).


 


(b)                                 In addition, following the consummation of
the exchange offer contemplated by the Registration Rights Agreement, whether
or not required by the rules and regulations of the Commission, the Company
will file electronically via the Electronic Data Gathering Analysis Retrieval
(EDGAR) system or any successor system maintained by the Commission a copy of
all such information and reports with the Commission for public availability
within the time periods specified in the Commission’s rules and regulations
(unless the Commission will not accept such a filing) and make such information
available to securities analysts and prospective investors upon request. In
addition, the Company has agreed that, for so long as any Notes remain
outstanding, it will furnish to the Holders and to securities analysts and
prospective investors, upon their request, the information required to be
delivered pursuant to Rule 144A(d)(4) under the Securities Act.


 


Section 4.4.                                   Compliance Certificate.


 


(a)                                  The Company and each Guarantor shall deliver
to the Trustee, within 105 days after the end of each fiscal year, an Officers’
Certificate complying with the applicable provisions of the TIA and stating
that a review of the activities of the Company and its Subsidiaries during the
preceding fiscal year has been made under the supervision of the signing
Officers with a view to determining whether the Company has kept, observed,
performed and fulfilled its obligations under this Indenture and further
stating, as to each such Officer signing such certificate, that to the best of
his or her knowledge, after due inquiry, the Company has kept, observed,
performed and fulfilled each and every covenant contained in this Indenture and
is not in Default in the performance or observance of any of the terms,
provisions and conditions of this Indenture (and, 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 that to the best of his or her
knowledge, after due inquiry, no event has occurred and remains in existence by
reason of which payments on account of the principal of or interest, if any, on
the Notes are prohibited or if such event has occurred, a description of the
event.


 


(b)                                 The Company shall, so long as any of the
Notes are outstanding, deliver to the Trustee, promptly upon any Officer of the
Company obtaining knowledge of any Default or Event of Default, an Officers’
Certificate specifying such Default or Event of Default and describing its
status with reasonable particularity and what action the Company is taking or
proposes to take with respect thereto.


 


Section 4.5.                                   Taxes.


 


The
Company shall pay or discharge, and shall cause each of its Subsidiaries to pay
or discharge, prior to delinquency, all material taxes, assessments and
governmental levies except such as are contested


 


41

















 


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.


 


Section 4.6.                                   Stay, Extension and Usury Laws.


 


The
Company covenants (to the extent that it may lawfully do so) that it shall not
at any time insist upon, plead, or in any manner whatsoever claim or take the
benefit or advantage of, any stay, extension or usury law wherever enacted, now
or at any time hereafter in force, that may affect the covenants or the
performance of this Indenture; and the Company (to the extent that it may
lawfully do so) hereby expressly waives all benefit or advantage of any such
law, and covenants that it shall not, by resort to any such law, hinder, delay
or impede the execution of any power herein granted to the Trustee, but shall
suffer and permit the execution of every such power as though such law has not
been enacted.


 


Section 4.7.                                   Limitation on Restricted Payments.


 


(a)                                  The Company will not, and will not cause or
permit any of its Restricted Subsidiaries to, directly or indirectly (each of
the actions set forth in clauses (1), (2), (3) and (4) below being referred to
as a “Restricted Payment”):


 


(1)                                  declare or pay any dividend or make any
distribution (other than dividends or distributions payable in Qualified
Capital Stock of the Company) on or in respect of shares of the Company’s
Capital Stock to holders of such Capital Stock;


 


(2)                                  purchase, redeem or otherwise acquire or
retire for value any Capital Stock of the Company;


 


(3)                                  make any principal payment on, purchase,
defease, redeem, prepay, decrease or otherwise acquire or retire for value,
prior to any scheduled final maturity, scheduled repayment or scheduled sinking
fund payment, any Subordinated Indebtedness; or


 


(4)                                  make any Investment (other than Permitted
Investments);


 


if
at the time of such Restricted Payment or immediately after giving effect
thereto,


 


(i)                                     a Default or an Event of Default shall have
occurred and be continuing; or


 


(ii)                                  the Company is not able to incur at least
$1.00 of additional Indebtedness (other than Permitted Indebtedness) in
compliance with Section 4.9; or


 


(iii)                               the aggregate amount of Restricted Payments (including such proposed
Restricted Payment) made subsequent to the Issue Date (the amount expended for
such purposes, if other than in cash, being the fair market value of such
property as determined in good faith by the Board of Directors of the Company)
shall exceed the sum of


 


(w)                               50% of the cumulative Consolidated Net Income (or if cumulative
Consolidated Net Income shall be a loss, minus 100% of such loss) of the
Company earned subsequent to the Issue Date and ending on the last day of the
most recent quarter for which financial statements have been delivered pursuant
Section 4.3 (treating such period as a single accounting period); plus


 


42

















 


(x)                                   100% of the aggregate net cash proceeds
received by the Company from any Person (other than a Subsidiary of the
Company) from the issuance and sale subsequent to the Issue Date and on or
prior to the date the Restricted Payment occurs (the “Reference Date”)
of Qualified Capital Stock of the Company or warrants, options or other rights
to acquire Qualified Capital Stock of the Company (but excluding any debt
security that is convertible into, or exchangeable for, Qualified Capital
Stock, until such debt security has been converted into, or exchanged for,
Qualified Capital Stock); plus


 


(y)                                 without duplication of any amounts included
in clause (iii)(x) above, 100% of the aggregate net cash proceeds of any
equity contribution received by the Company from a holder of the Company’s
Capital Stock subsequent to the Issue Date and on or prior to the Reference
Date (excluding, in the case of clauses (iii)(x) and (y), any net cash
proceeds from an Equity Offering to the extent used to redeem the Notes in
compliance with the provisions set forth under Section 3.8); plus


 


(z)                                   without duplication, the sum of:


 


(1)                                  the aggregate amount returned in cash on or
with respect to Investments (other than Permitted Investments) made subsequent
to the Issue Date whether through interest payments, principal payments,
dividends or other distributions or payments;


 


(2)                                  the net cash proceeds received by the Company
or any of its Restricted Subsidiaries from the disposition of all or any
portion of such Investments (other than to a Subsidiary of the Company); and


 


(3)                                  upon redesignation of an Unrestricted
Subsidiary as a Restricted Subsidiary, the fair market value of such Subsidiary
as of the date of such redesignation;


 


provided, however, that the sum
of clauses (1), (2) and (3) above shall not exceed the aggregate amount of
all such Investments made subsequent to the Issue Date.


 


(b)                                 Notwithstanding the foregoing, the provisions
set forth in the immediately preceding paragraph (a) of this Section 4.7, the
provisions of this Section 4.7 do not prohibit:


 


(1)                                  the payment of any dividend within 60 days
after the date of declaration of such dividend if the dividend would have been
permitted on the date of declaration;


 


(2)                                  the acquisition of any shares of Capital
Stock of the Company, either (i) solely in exchange for shares of
Qualified Capital Stock of the Company or (ii) through the application of
net proceeds of a substantially concurrent sale for cash (other than to a
Subsidiary of the Company) of shares of Qualified Capital Stock of the Company;


 


(3)                                  the acquisition of any Subordinated
Indebtedness either (i) solely in exchange for shares of Qualified Capital
Stock of the Company, or (ii) through the application of net proceeds of a
substantially concurrent sale for cash (other than to a Subsidiary of the
Company) of (a) shares of Qualified Capital Stock of the Company or (b) Refinancing
Indebtedness;


 


(4)                                  so long as no Default or Event of Default
shall have occurred and be continuing, repurchases by the Company of Common
Stock of the Company from officers, directors and employees


 


43

















 


of
the Company or any of its Subsidiaries or their authorized representatives upon
the death, disability or termination of employment of such employees or
termination of their seat on the board of the Company in an aggregate amount
not to exceed $2.5 million in any calendar year;


 


(5)                                  repurchases of Capital Stock deemed to occur
upon the exercise of stock options or warrants if such Capital Stock represents
a portion of the exercise price and related statutory withholding taxes of such
options or warrants;


 


(6)                                  payments of dividends on Disqualified Capital
Stock or preferred stock of any Restricted Subsidiary, the incurrence or
issuance of which was permitted by this Indenture;


 


(7)                                  cash payments in lieu of the issuance of
fractional shares in connection with the exercise of warrants, options or other
securities convertible into or exchangeable for Capital Stock of the Company;


 


(8)                                  the retirement of any shares of Disqualified
Capital Stock of the Company by conversion into, or by exchange for, shares of
Disqualified Capital Stock of the Company or out of the net cash proceeds of
the substantially concurrent sale (other than to a Subsidiary of the Company)
or other shares of Disqualified Capital Stock of the Company; and


 


(9)                                  other Restricted Payments in an aggregate
amount not to exceed $10.0 million after the Issue Date.


 


In
determining the aggregate amount of Restricted Payments made subsequent to the
Issue Date in accordance with clause (iii) of the immediately preceding
paragraph, amounts expended pursuant to clauses (1), (2)(ii), (3)(ii)(a),
(4) and (9) shall be included in such calculation.


 


Section 4.8.                                   Limitation on Dividend and Other Payment
Restrictions Affecting Restricted Subsidiaries.


 


The
Company will not, and will not cause or permit any of its Restricted
Subsidiaries to, directly or indirectly, create or otherwise cause or permit to
exist or become effective any encumbrance or restriction on the ability of any
Restricted Subsidiary of the Company to:


 


(1)                                  pay dividends or make any other distributions
on or in respect of its Capital Stock;


 


(2)                                  make loans or advances to the Company or any
other Restricted Subsidiary or to pay any Indebtedness or other obligation owed
to the Company or any other Restricted Subsidiary of the Company; or


 


(3)                                  transfer any of its property or assets to the
Company or any other Restricted Subsidiary of the Company, except in each case
for such encumbrances or restrictions existing under or by reason of:


 


(a)                                  applicable law, rule, regulation or order;


 


(b)                                 this Indenture, the Notes, including the
exchange notes to be issued pursuant to the Registration Rights Agreement, and
the Guarantees;


 


(c)                                  customary non-assignment provisions of any
contract or any lease governing a leasehold interest of any Restricted Subsidiary
of the Company;


 


44

















 


(d)                                 any instrument governing Acquired
Indebtedness, which encumbrance or restriction is not applicable to any Person,
or the properties or assets of any Person, other than the Person or the
properties or assets of the Person so acquired;


 


(e)                                  agreements existing on the Issue Date to the
extent and in the manner such agreements are in effect on the Issue Date;


 


(f)                                    the ABL Facility;


 


(g)                                 restrictions on the transfer of assets
subject to any Lien permitted under this Indenture imposed by the holder of
such Lien;


 


(h)                                 restrictions imposed by any agreement to sell
assets or Capital Stock permitted under this Indenture to any Person pending
the closing of such sale;


 


(i)                                     customary provisions in joint venture
agreements and other similar agreements (in each case relating solely to the
respective joint venture or similar entity or the equity interests therein)
entered into in the ordinary course of business;


 


(j)                                     other Indebtedness of Restricted Subsidiaries
permitted to be incurred pursuant to an agreement entered into subsequent to
the Issue Date in accordance with Section 4.9; provided,
however, that the Board of
Directors of the Company determines in good faith at the time such dividend and
other payment restrictions are created that such dividend and other payment
restrictions do not materially adversely affect the Company’s ability to pay
principal of, and interest on, the Notes; and


 


(k)                                  an agreement governing Indebtedness incurred
to Refinance the Indebtedness issued, assumed or incurred pursuant to an
agreement referred to in clauses (b), (d), (e) and (g) above; provided, however,
that the provisions relating to such encumbrance or restriction contained in
any such Indebtedness, taken as a whole, are no less favorable to the Company
in any material respect as determined by the Board of Directors of the Company
in their reasonable and good faith judgment than the provisions relating to
such encumbrance or restriction contained in agreements referred to in such
clauses (b), (d), (e) and (g).


 


Section 4.9.                                   Limitation on Incurrence of Additional
Indebtedness.


 


(a)                                  The Company will not, and will not permit any
of its Restricted Subsidiaries to, directly or indirectly, create, incur,
assume, guarantee, acquire, become liable, contingently or otherwise, with
respect to, or otherwise become responsible for payment of (collectively, “incur”) any Indebtedness (other than
Permitted Indebtedness); provided,
however, that if no Default or
Event of Default shall have occurred and be continuing at the time of or as a
consequence of the incurrence of any such Indebtedness, the Company or any of
its Restricted Subsidiaries that is or, upon such incurrence, becomes a
Guarantor may incur Indebtedness (including, without limitation, Acquired
Indebtedness) and any Restricted Subsidiary of the Company that is not or will
not, upon such incurrence, become a Guarantor may incur Acquired Indebtedness,
in each case if on the date of the incurrence of such Indebtedness, after
giving effect to the incurrence thereof, the Consolidated Fixed Charge Coverage
Ratio of the Company would have been greater than 2.25 to 1.0.


 


(b)                                 The Company will not, and will not permit any
Guarantor to, directly or indirectly, incur any Indebtedness which by its terms
(or by the terms of any agreement governing such Indebtedness) is expressly
subordinated in right of payment to any other Indebtedness of the Company or
such Guarantor, as the case may be, unless such Indebtedness is also by its terms
(or by the terms of any agreement governing such


 


45

















 


Indebtedness) made expressly
subordinate to the Notes or the applicable Guarantee, as the case may be, to
the same extent and in the same manner as such Indebtedness is subordinated to
other Indebtedness of the Company or such Guarantor, as the case may be, except
for the Sowood Credit Facility as in effect on the Issue Date and as may be
amended, supplemented, modified, extended, renewed, restated, refunded or
refinanced in any manner not materially adverse to the Holders of the Notes. For
purposes of the foregoing, no Indebtedness will be deemed to be subordinated in
right of payment to any other Indebtedness of the Company or any Guarantor
solely by virtue of such Indebtedness being unsecured or by virtue of the fact
that the holders of such Indebtedness have entered into one or more
intercreditor agreements giving one or more of such holders priority over the
other holders in the collateral held by them.


 


Section 4.10.                             Limitation on Asset Sales.


 


(a)                                  The Company will not, and will not permit any
of its Restricted Subsidiaries to, consummate an Asset Sale unless:


 


(1)                                  the Company or the applicable Restricted
Subsidiary, as the case may be, receives consideration at the time of such
Asset Sale at least equal to the fair market value of the assets sold or
otherwise disposed of (as determined in good faith by the Company’s Board of
Directors);


 


(2)                                  at least 75% of the consideration received by
the Company or the Restricted Subsidiary, as the case may be, from such Asset
Sale shall be in the form of cash, Cash Equivalents and/or Replacement Assets
(as defined below) and is received at the time of such disposition; provided that


 


(A)                              the amount of any liabilities (as shown on the Company’s or such
Restricted Subsidiary’s most recent balance sheet) of the Company or any such
Restricted Subsidiary (other than liabilities that are by their terms
subordinated in right of payment to the Notes or any Guarantee of a Guarantor)
that are assumed by the transferee of any such assets; and


 


(B)                                the fair market value of any securities or other assets received by the
Company or any such Restricted Subsidiary in exchange for any such assets that
are converted into cash or Cash Equivalents within 180 days after such Asset
Sale;


 


in
each case shall be deemed to be cash for purposes of this provision; and


 


(3)                                  upon the consummation of an Asset Sale, the
Company shall apply, or cause such Restricted Subsidiary to apply, the Net Cash
Proceeds relating to such Asset Sale within 365 days of receipt thereof either:


 


(a)                                  to permanently reduce Indebtedness under the
ABL Facility; and, in the case of any such Indebtedness under any revolving
credit facility, effect a permanent reduction in the availability under such
revolving credit facility;


 


(b)                                 to make an investment in  properties and assets (including Capital
Stock) that replace the properties and assets that were the subject of such
Asset Sale or in properties and assets 
that will be used in the business of the Company and its Restricted
Subsidiaries as existing on the Issue Date or in businesses reasonably related
thereto (“Replacement Assets”); and/or


 


(c)                                  a combination of prepayment and investment
permitted by the foregoing clauses (3)(a) and (3)(b).


 


46

















 


(b)                                 Pending the final application of such Net
Cash Proceeds, the Company may temporarily reduce borrowings under the ABL
Facility or any other revolving credit facility. On the 366th day after an
Asset Sale or such earlier date, if any, as the Board of Directors of the
Company or of such Restricted Subsidiary determines not to apply the Net Cash
Proceeds relating to such Asset Sale as set forth in clauses (3)(a),
(3)(b) and (3)(c) of the preceding paragraph (each, a “Net Proceeds Offer
Trigger Date”), such aggregate amount of Net Cash Proceeds which have not
been applied on or before such Net Proceeds Offer Trigger Date as permitted in
clauses (3)(a), (3)(b) and (3)(c) of the preceding paragraph (each a “Net
Proceeds Offer Amount”) shall be applied by the Company or such Restricted
Subsidiary to make an offer to purchase (the “Net Proceeds Offer”) to
all Holders and, to the extent required by the terms of any Pari Passu
Indebtedness, to all holders of such Pari Passu Indebtedness, on a date (the “Net
Proceeds Offer Payment Date”) not less than 30 nor more than 60 days
following the applicable Net Proceeds Offer Trigger Date, from all Holders (and
holders of any such Pari Passu Indebtedness) on a pro  rata
basis, that amount of Notes (and Pari Passu Indebtedness) equal to the Net
Proceeds Offer Amount at a price equal to 100% of the principal amount of the
Notes (and Pari Passu Indebtedness) to be purchased, plus accrued and unpaid
interest thereon, if any, to the date of purchase; provided, however,
that if at any time any non-cash consideration received by the Company or any
Restricted Subsidiary of the Company, as the case may be, in connection with
any Asset Sale is converted into or sold or otherwise disposed of for cash
(other than interest received with respect to any such non-cash consideration),
then such conversion or disposition shall be deemed to constitute an Asset Sale
hereunder and the Net Cash Proceeds thereof shall be applied in accordance with
this covenant.


 


(c)                                  The Company may defer the Net Proceeds Offer
until there is an aggregate unutilized Net Proceeds Offer Amount equal to or in
excess of $7.5 million resulting from one or more Asset Sales (at which
time, the entire unutilized Net Proceeds Offer Amount, and not just the amount
in excess of $7.5 million, shall be applied as required pursuant to this
paragraph).


 


(d)                                 In the event of the transfer of substantially
all (but not all) of the property and assets of the Company and its Restricted
Subsidiaries as an entirety to a Person in a transaction permitted under
Section 5.1, which transaction does not constitute a Change of Control, the
successor corporation shall be deemed to have sold the properties and assets of
the Company and its Restricted Subsidiaries not so transferred for purposes of
this covenant, and shall comply with the provisions of this covenant with
respect to such deemed sale as if it were an Asset Sale. In addition, the fair
market value of such properties and assets of the Company or its Restricted
Subsidiaries deemed to be sold shall be deemed to be Net Cash Proceeds for
purposes of this covenant.


 


(e)                                  Each Net Proceeds Offer will be mailed to the
record Holders as shown on the register of Holders within 25 days following the
Net Proceeds Offer Trigger Date, with a copy to the Trustee, and shall comply
with the procedures set forth in this Indenture. Upon receiving notice of the
Net Proceeds Offer, Holders may elect to tender their Notes in whole or in part
in integral multiples of $1,000 in exchange for cash. To the extent Holders
properly tender Notes and holders of Pari Passu Indebtedness properly tender
such Pari Passu Indebtedness in an amount exceeding the Net Proceeds Offer
Amount, the tendered Notes and Pari Passu Indebtedness will be purchased on a pro  rata
basis based on the aggregate amounts of Notes and Pari Passu Indebtedness
tendered (and DBTCA shall select the tendered Notes of tendering Holders on a pro rata basis based on the amount of
Notes tendered). A Net Proceeds Offer shall remain open for a period of 20
business days or such longer period as may be required by law. If any Net Cash
Proceeds remain after the consummation of any Net Proceeds Offer, the Company
may use those Net Cash Proceeds for any purpose not otherwise prohibited by
this Indenture. Upon completion of each Net Proceeds Offer, the amount of Net
Cash Proceeds will be reset at zero.


 


(f)                                    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 Notes pursuant to a Net Proceeds Offer. To
the extent that the provisions of any securities laws or regulations conflict
with this Section 4.10 or Section 3.10, the Company shall


 


47

















 


comply with the applicable
securities laws and regulations and shall not be deemed to have breached its
obligations under this Section 4.10 or Section 3.10 by virtue thereof.


 


Section 4.11.                             Limitations on Transactions with Affiliates.


 


(a)                                  The Company will not, and will not permit any
of its Restricted Subsidiaries to, directly or indirectly, enter into or permit
to exist any transaction or series of related transactions (including, without
limitation, the purchase, sale, lease or exchange of any property or the
rendering of any service) with, or for the benefit of, any of its Affiliates
(each, an “Affiliate Transaction”), other than (x) Affiliate
Transactions permitted under paragraph (b) of this Section and
(y) Affiliate Transactions on terms that are no less favorable than those
that might reasonably have been obtained in a comparable transaction at such
time on an arm’s-length basis from a Person that is not an Affiliate of the
Company or such Restricted Subsidiary.


 


All
Affiliate Transactions (and each series of related Affiliate Transactions which
are similar or part of a common plan) 
involving aggregate payments or other property with a fair market value
in excess of $1.0 million shall be approved by the Board of Directors of the
Company or such Restricted Subsidiary, as the case may be, such approval to be
evidenced by a Board Resolution stating that such Board of Directors has
determined that such transaction complies with the foregoing provisions. If the
Company or any Restricted Subsidiary of the Company enters into an Affiliate
Transaction (or a series of related Affiliate Transactions related to a common
plan) that involves an aggregate fair market value of more than
$7.5 million, the Company or such Restricted Subsidiary, as the case may
be, shall, prior to the consummation thereof, obtain a favorable opinion as to
the fairness of such transaction or series of related transactions to the
Company or the relevant Restricted Subsidiary, as the case may be, from a
financial point of view, from an Independent Financial Advisor and file the
same with the Trustee.


 


(b)                                 The restrictions set forth in paragraphs (a)
and (b) of this Section 4.11 shall not apply to:


 


(1)                                  loans, advances and payments of reasonable
fees and compensation to and indemnity provided on behalf of, officers,
directors, employees or consultants of the Company or any Restricted Subsidiary
of the Company as determined in good faith by the Company’s Board of Directors
or senior management;


 


(2)                                  transactions exclusively between or among the
Company and any of its Restricted Subsidiaries or exclusively between or among
such Restricted Subsidiaries, provided
that such transactions are not otherwise prohibited by this Indenture;


 


(3)                                  any agreement as in effect as of the Issue
Date or any amendment thereto or any transaction contemplated thereby
(including pursuant to any amendment thereto) in any replacement agreement
thereto so long as any such amendment or replacement agreement, taken as a
whole, is not materially more disadvantageous to the Holders than the original
agreement as in effect on the Issue Date;


 


(4)                                  any transaction on arm’s length terms with
any non-Affiliate that becomes an Affiliate as a result of such transaction;


 


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


 


(6)                                  the issuance and sale of Qualified Capital
Stock; and


 


48

















 


(7)                                  Permitted Investments and Restricted Payments
permitted by this Indenture.


 


Section 4.12.                             Limitation on Liens.


 


The
Company will not, and will not cause or permit any of its Restricted
Subsidiaries to, directly or indirectly, create, incur, assume or permit or
suffer to exist any Liens of any kind against or upon any property or assets of
the Company or any of its Restricted Subsidiaries whether owned on the Issue
Date or acquired after the Issue Date, or any proceeds therefrom, or assign or
otherwise convey any right to receive income or profits therefrom unless:


 


(1)                                  in the case of Liens securing Subordinated
Indebtedness, the Notes or the Guarantee of such Guarantor, as the case may be,
are secured by a Lien on such property, assets or proceeds that is senior in
priority to such Liens; and


 


(2)                                  in all other cases, the Notes or the
Guarantee of such Guarantor, as the case may be, are equally and ratably
secured, except for:


 


(a)                                  Liens existing as of the Issue Date to the
extent and in the manner such Liens are in effect on the Issue Date;


 


(b)                                 Liens securing borrowings under the ABL
Facility incurred pursuant to clause (2) of the definition of “Permitted
Indebtedness”;


 


(c)                                  Liens securing borrowings under the Sowood
Credit Facility incurred pursuant to clause (3) of the definition of “Permitted
Indebtedness”;


 


(d)                                 Liens securing the Company’s and its
Restricted Subsidiaries’ Obligations under the Hedge Facility or any
replacement or similar hedge facility entered into by the Company and its
Restricted Subsidiaries;


 


(e)                                  Liens securing the Notes and the Guarantees;


 


(f)                                    Liens in favor of the Company or a Wholly
Owned Restricted Subsidiary of the Company on assets of any Restricted
Subsidiary of the Company;


 


(g)                                 Liens securing Refinancing Indebtedness which
is incurred to Refinance any Indebtedness which has been secured by a Lien
permitted under this Indenture and which has been incurred in accordance with
the provisions of this Indenture; provided,
however, that such Liens:  (i) are no less favorable to the Holders
in any material respect and are not more favorable to the lienholders in any
material respect with respect to such Liens than the Liens in respect of the
Indebtedness being Refinanced; and (ii) do not extend to or cover any
property or assets of the Company or any of its Restricted Subsidiaries not
securing the Indebtedness so Refinanced; and


 


(h)                                 Permitted Liens.


 


Section 4.13.                             Continued Existence.


 


Subject
to Article V, the Company shall do or cause to be done all things
necessary to preserve and keep in full force and effect its corporate or other
existence and the corporate or other existence of each Guarantor in accordance
with the organizational documents (as the same may be amended from time to
time) of


 


49

















 


the Company or such Guarantor,
except to the extent that the Board of Directors of the Company determines in
good faith that the preservation of such existence is no longer necessary or
desirable in the conduct of the business of the Company or such Guarantor,
taken as a whole, and that the loss thereof is not disadvantageous in any
material respect to the Holders.


 


Section 4.14.                             Insurance Matters.


 


The
Company shall provide or cause to be provided for itself and each of its
Subsidiaries insurance (including appropriate self-insurance) against loss or
damage of the kinds that, in the reasonable, good faith opinion of the Company,
are adequate and appropriate for the conduct of the business of the Company and
its Subsidiaries in a prudent manner, with reputable insurers or with the
government of the United States of America or an agency or instrumentality
thereof, in such amounts, with such deductibles, and by such methods as shall
be either (i) consistent with past practices of the Company or the applicable
subsidiary or (ii) customary, in the reasonable, good faith opinion of the
Company, for corporations similarly situated in the industry, unless, in the
good faith judgment of the Board of Directors of the Company, the failure to
provide such insurance (together with all other such failures) would not have a
material adverse effect on the financial condition or results of operations of
the Company and its Subsidiaries, taken as a whole.


 


Section 4.15.                             Offer to Repurchase upon Change of Control.


 


(a)                                  Upon the occurrence of a Change of Control,
each Holder will have the right to require that the Company purchase all or a
portion of such Holder’s Notes pursuant to the offer described below (the “Change
of Control Offer”), at a purchase price equal to 101% of the principal
amount thereof plus accrued and unpaid interest and Additional Interest, if
any, thereon to the Purchase Date.


 


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


 


(c)                                  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 Notes pursuant to a Change of Control
Offer. To the extent that the provisions of any securities laws or regulations
conflict with this Section 4.15 or Section 3.9, the Company shall comply with
the applicable securities laws and regulations and shall not be deemed to have
breached its obligations under this Section 4.15 or Section 3.9 by virtue
thereof.


 


Section 4.16.                             Additional Subsidiary Guarantees.


 


If
the Company or any of its Restricted Subsidiaries transfers or causes to be
transferred, in one transaction or a series of related transactions, any
property to any Domestic Restricted Subsidiary that is not a Guarantor, or if
the Company or any of its Restricted Subsidiaries shall organize, acquire or otherwise
invest in another Domestic Restricted Subsidiary having total assets with a
book value in excess of $1.0 million then such transferee or acquired or other
Restricted Subsidiary shall:


 


(1)                                  execute and deliver to the Trustee a
supplemental indenture in form reasonably satisfactory to the Trustee pursuant
to which such Restricted Subsidiary shall unconditionally guarantee all of the
Company’s obligations under the Notes and this Indenture on the terms set forth
in this Indenture; and


 


50

















 


(2)                                  deliver to the Trustee an Opinion of Counsel
that such supplemental indenture has been duly authorized, executed and
delivered by such Restricted Subsidiary and constitutes a legal, valid, binding
and enforceable obligation of such Restricted Subsidiary.


 


Thereafter,
such Restricted Subsidiary shall be a Guarantor for all purposes of this
Indenture.


 


Section 4.17.                             Payments for Consent.


 


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


 


Section 4.18.                             Limitation on Preferred Stock of Restricted Subsidiaries.


 


The
Company will not permit any of its Restricted Subsidiaries that are not
Guarantors to issue any Preferred Stock (other than to the Company or to a
Wholly Owned Restricted Subsidiary of the Company) or permit any Person (other
than the Company or a Wholly Owned Restricted Subsidiary of the Company) to own
any Preferred Stock of any Restricted Subsidiary of the Company that is not a
Guarantor.


 


Section 4.19.                             Conduct of Business.


 


The
Company and its Restricted Subsidiaries will not engage in any businesses which
are not the same, similar, ancillary or reasonably related to the businesses in
which the Company and its Restricted Subsidiaries are engaged on the Issue
Date.


 


ARTICLE V.


 


SUCCESSORS


 


Section 5.1.                                   Merger, Consolidation and Sale of Assets.


 


(a)                                  The Company will not, in a single transaction
or series of related transactions, consolidate or merge with or into any
Person, or sell, assign, transfer, lease, convey or otherwise dispose of (or
cause or permit any Restricted Subsidiary of the Company to sell, assign,
transfer, lease, convey or otherwise dispose of) all or substantially all of
the Company’s assets (determined on a consolidated basis for the Company and
the Company’s Restricted Subsidiaries) whether as an entirety or substantially
as an entirety to any Person unless:


 


(1)                                  either:


 


(a)                                  the Company shall be the surviving or
continuing corporation; or


 


(b)                                 the Person (if other than the Company) formed
by such consolidation or into which the Company is merged or the Person which
acquires by sale, assignment, transfer, lease, conveyance or other disposition
the properties and assets of the Company and of the Company’s Restricted
Subsidiaries substantially as an entirety (the “Surviving Entity”):


 


(x)                                   shall be a corporation organized and validly
existing under the laws of the United States or any State thereof or the
District of Columbia; and


 


51

















 


(y)                                 shall expressly assume, by supplemental
indenture (in form and substance satisfactory to the Trustee), executed and
delivered to the Trustee, the due and punctual payment of the principal of, and
premium, if any, and interest on all of the Notes and the performance of every
covenant of the Notes, this Indenture and the Registration Rights Agreement on
the part of the Company to be performed or observed;


 


(2)                                  immediately after giving effect to such
transaction and the assumption contemplated by clause (1)(b)(y) above
(including giving effect to any Indebtedness and Acquired Indebtedness incurred
or anticipated to be incurred in connection with or in respect of such
transaction), the Company or such Surviving Entity, as the case may be, shall
be able to incur at least $1.00 of additional Indebtedness (other than
Permitted Indebtedness) pursuant to Section 4.9(a);


 


(3)                                  immediately before and immediately after
giving effect to such transaction and the assumption contemplated by clause
(1)(b)(y) above (including, without limitation, giving effect to any
Indebtedness and Acquired Indebtedness incurred or anticipated to be incurred
and any Lien granted in connection with or in respect of the transaction), no
Default or Event of Default shall have occurred or be continuing; and


 


(4)                                  the Company or the Surviving Entity shall
have delivered to the Trustee an Officers’ Certificate and an Opinion of
Counsel, each stating that such consolidation, merger, sale, assignment,
transfer, lease, conveyance or other disposition and, if a supplemental
indenture is required in connection with such transaction, such supplemental
indenture comply with the applicable provisions of this Indenture and that all
conditions precedent in this Indenture relating to such transaction have been
satisfied.


 


For
purposes of the foregoing, the transfer (by lease, assignment, sale or
otherwise, in a single transaction or series of transactions) of all or
substantially all of the properties or assets of one or more Restricted
Subsidiaries of the Company, the Capital Stock of which constitutes all or
substantially all of the properties and assets of the Company, shall be deemed
to be the transfer of all or substantially all of the properties and assets of
the Company.


 


(b)                                 Notwithstanding the foregoing clauses (1),
(2) and (3) of clause (a) above, the Company may merge with (a) any of its
Wholly-Owned Restricted Subsidiaries or (b) an Affiliate that is a Person
that has no material assets or liabilities and which was organized solely for
the purpose of reorganizing the Company in another jurisdiction.


 


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


 


(1)                                  the entity formed by or surviving any such
consolidation or merger (if other than the Guarantor) or to which such sale,
lease, conveyance or other disposition shall have been made is a corporation,
organized and existing under the laws of the United States or any State thereof
or the District of Columbia;


 


(2)                                  such entity assumes by supplemental indenture
all of the obligations of the Guarantor on the Guarantee;


 


52

















 


(3)                                  immediately after giving effect to such
transaction, no Default or Event of Default shall have occurred and be
continuing; and


 


(4)                                  immediately after giving effect to such
transaction and the use of any net proceeds therefrom on a pro forma basis, the Company could satisfy
the provisions of clause (2) of Section 5.1(a).


 


Any
merger or consolidation of a Guarantor with and into the Company (with the
Company being the surviving entity) or another Guarantor that is a Wholly-Owned
Restricted Subsidiary of the Company need only comply with clause (4) of
Section 5.1(a).


 


Section 5.2.                                   Successor Corporation Substituted.


 


Upon
any consolidation, combination or merger or any transfer of all or substantially
all of the assets of the Company in accordance with Section 5.1 in which the
Company is not the continuing corporation, the successor Person formed by such
consolidation or into which the Company is merged or to which such conveyance,
lease or transfer is made shall succeed to, and be substituted for, and may
exercise every right and power of, the Company under this Indenture, the Notes
and the Registration Rights Agreement with the same effect as if such Surviving
Entity had been named as such. When a successor corporation assumes all of the
obligations of the predecessor hereunder and under the Notes and the Security
Documents and agrees in writing to be bound hereby and thereby, the predecessor
shall be released from such obligations.


 


ARTICLE VI.


 


DEFAULTS AND REMEDIES


 


Section 6.1.                                   Events of Default.


 


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


 


(a)                                  the failure to pay interest on any Notes when
the same becomes due and payable and the default continues for a period of 30
days;


 


(b)                                 the failure to pay the principal on any
Notes, when such principal becomes due and payable, at maturity, upon
redemption or otherwise (including the failure to make a payment to purchase
Notes tendered pursuant to a Change of Control Offer or a Net Proceeds Offer);


 


(c)                                  a default in the observance or performance of
any other covenant or agreement contained in this Indenture which default
continues for a period of 45 days after the Company receives written notice
specifying the default (and demanding that such default be remedied) from the
Trustee or the Holders of at least 25% of the outstanding principal amount of
the Notes (except in the case of a default with respect to Section 5.1, which
will constitute an Event of Default with such notice requirement but without
such passage of time requirement);


 


(d)                                 the failure to pay at final maturity (giving
effect to any applicable grace periods and any extensions thereof) the stated
principal amount of any Indebtedness of the Company or any Restricted
Subsidiary of the Company, or the acceleration of the final stated maturity of
any such Indebtedness (which acceleration is not rescinded, annulled or
otherwise cured within 30 days of receipt by the Company or such Restricted
Subsidiary of notice of any such acceleration) if the aggregate principal
amount of such Indebtedness, together with the principal amount of any other
such Indebtedness in default for failure to pay principal at final stated
maturity or which has been accelerated (in each case with


 


53

















 


respect
to which the 30-day period described above has elapsed), aggregates
$5 million or more at any time; provided,
that if such failure to pay shall be remedied, waived or extended within 30
days of receipt by the Company or such Restricted Subsidiary of notice of such
acceleration, then any Default or Event of Default hereunder shall be deemed
likewise to be remedied, waived or extended without further action by the
Company;


 


(e)                                  one or more judgments in an aggregate amount
in excess of $5.0 million shall have been rendered against the Company or
any of its Restricted Subsidiaries and such judgments remain undischarged,
unpaid or unstayed for a period of 60 days after such judgment or judgments
become final and non-appealable;


 


(f)                                    the Company or any Significant Subsidiary of
the Company:


 


(i)                  commences
a voluntary case under any Bankruptcy Law,


 


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


 


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


 


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


 


(v)              admits
in writing its inability to pay its debts as they become due; or


 


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


 


(i)                  is
for relief in an involuntary case against the Company or any Significant
Subsidiary of the Company;


 


(ii)               appoints
a custodian or receiver of the Company or any Significant Subsidiary or for all
or substantially all of the property of any of the foregoing;


 


(iii)            orders
the liquidation of the Company or any of its Significant Subsidiaries;


 


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


 


(h)                                 any Guarantee of a Significant Subsidiary
ceases to be in full force and effect or any Guarantee of a Significant
Subsidiary is declared to be null and void and unenforceable or any Guarantee
of a Significant Subsidiary is found to be invalid or any Guarantor that is a
Significant Subsidiary denies its liability under its Guarantee (other than by
reason of release of a Guarantor in accordance with the terms of this
Indenture).


 


Section 6.2.                                   Acceleration.


 


If
an Event of Default (other than an Event of Default specified in
clause (f) or (g) of Section 6.1 above with respect to the Company) shall
occur and be continuing, the Trustee or the Holders of at least 25% in
principal amount of outstanding Notes may declare the principal of and accrued
interest on all the Notes to be due and payable by notice in writing to the
Company and the Trustee specifying the respective Event of Default and that it
is a “notice of acceleration”, and the same shall become immediately due and
payable.


 


54

















 


If
an Event of Default specified in clause (f) or (g) of Section 6.1 above
with respect to the Company occurs and is continuing, then all unpaid principal
of, and premium, if any, and accrued and unpaid interest on all of the
outstanding Notes shall ipso facto
become and be immediately due and payable without any declaration or other act
on the part of the Trustee or any Holder.


 


At
any time after a declaration of acceleration with respect to the Notes as
described in the preceding paragraph, the Holders of a majority in principal
amount of the Notes may rescind and cancel such declaration and its
consequences:


 


(1)                                  if the rescission would not conflict with any
judgment or decree;


 


(2)                                  if all existing Events of Default have been
cured or waived except nonpayment of principal or interest that has become due
solely because of the acceleration;


 


(3)                                  to the extent the payment of such interest is
lawful, interest on overdue installments of interest and overdue principal,
which has become due otherwise than by such declaration of acceleration, has
been paid;


 


(4)                                  if the Company has paid the Trustee its
reasonable compensation and reimbursed the Trustee for its expenses,
disbursements and advances; and


 


(5)                                  in the event of the cure or waiver of an
Event of Default of the type described in clause (f) of Section 6.1, the
Trustee shall have received an Officers’ Certificate and an Opinion of Counsel
that such Event of Default has been cured or waived.


 


No
such rescission shall affect any subsequent Default or impair any right
consequent thereto.


 


Section 6.3.                                   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, interest
or Additional Interest, if any, on the Notes or to enforce the performance of
any provision of the Notes or this Indenture.


 


The
Trustee may maintain a proceeding even if it does not possess any of the Notes
or does not produce any of them in the proceeding, and any recovery or judgment
shall, after provision for the payment of the reasonable compensation,
expenses, disbursements and advances of the Trustee, its agents and counsel, be
for the ratable benefit of the Holders of the Notes. A delay or omission by the
Trustee or any Holder in exercising any right or remedy accruing upon an Event
of Default shall not impair the right or remedy or constitute a waiver of or
acquiescence in the Event of Default. All remedies are cumulative to the extent
permitted by law.


 


Section 6.4.                                   Waiver of Past Defaults.


 


The
Holders of a majority in principal amount of the Notes may waive any existing
or past Default or Event of Default under this Indenture, and its consequences,
except a default in the payment of the principal of or interest on any Notes. 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.


 


55

















 


Section 6.5.                                   Control by Majority.


 


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 applicable
law or this Indenture that the Trustee reasonably determines may be unduly prejudicial
to the rights of other Holders of Notes or that may subject the Trustee to
personal liability and shall be entitled to the benefit of
Sections 7.1(c)(iii) and 7.1(e).


 


Section 6.6.                                   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 or Holders of Notes offer and, if
requested, provide to the Trustee reasonable 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 6.7.                                   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 of, or premium, if any, interest or Additional
Interest, if any, on the Note, on or after the respective due dates thereon
(including in connection with an offer to repurchase), 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 written consent of such Holder.


 


Section 6.8.                                   Collection Suit by Trustee.


 


If
an Event of Default specified in Section 6.l(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 Additional Interest, if any, and interest remaining
unpaid on the Notes and interest on overdue principal and, to the extent
lawful, interest and Additional Interest, if any, and such further amounts as
shall be sufficient to cover the costs and expenses of collection, including
the reasonable compensation, expense, disbursements and advances of the
Trustee, its agents and counsel.


 


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Section 6.9.                                   Trustee May File Proofs of Claim.


 


The
Trustee is authorized to file such proofs of claim and other papers or
documents as may be necessary or advisable in order to have the claims of the
Trustee (including any claim for the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents (including accountants,
experts or such other processionals as the Trustee deems necessary, advisable
or appropriate) and counsel) and the Holders of the Notes allowed in any
judicial proceedings relative to the Company (or any other obligor upon the
Notes), its creditors or its property and shall be entitled to participate as a
member, voting or otherwise, of any official committee of creditors appointed
in such matter 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 7.7. 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 7.7 out of the estate in any such proceeding, shall be
denied for any reason, payment of the same shall be secured by a lien on, and
shall be paid out of, any and all distributions, dividends, money, securities
and other properties that the Holders may be entitled to receive in such
proceeding whether in liquidation or under any plan of reorganization or
arrangement or otherwise. Nothing herein contained shall be deemed to authorize
the Trustee to authorize or consent to or accept or adopt on behalf of any
Holder any plan of reorganization, arrangement, adjustment or composition
affecting the Notes or the rights of any Holder, or to authorize the Trustee to
vote in respect of the claim of any Holder in any such proceeding.


 


Section 6.10.                             Priorities.


 


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


 


First:  to
the Trustee, its agents and attorneys for amounts due under Section 7.7,
including payment of all compensation, expense and liabilities incurred, and
all advances made, by the Trustee and the costs and expenses of collection;


 


Second:  to
Holders of Notes for amounts due and unpaid on the Notes for principal,
Purchase Price, Redemption Price and Additional Interest, if any, and interest,
ratably, without preference or priority of any kind, according to the amounts
due and payable on the Notes for principal, Purchase Price, Redemption Price
and Additional Interest, if any, and interest, respectively; and


 


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


 


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


 


Section 6.11.                             Undertaking for Costs.


 


In
any suit for the enforcement of any right or remedy under this Indenture or in
any suit against the Trustee for any action taken or omitted by it as a
Trustee, a court in its discretion may require the filing by any party litigant
in the suit of an undertaking to pay the costs of the suit, and the court in
its discretion may assess reasonable costs, including reasonable attorneys’
fees, against any party litigant in the suit, having due regard to the merits
and good faith of the claims or defenses made by the party litigant. This
Section does


 


57

















 


not apply to a suit by the
Trustee, a suit by a Holder pursuant to Section 6.7 or a suit by Holders
of more than 10% in principal amount of the then outstanding Notes.


 


ARTICLE VII.


 


TRUSTEE


 


Section 7.1.                                   Duties of Trustee.


 


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


 


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


 


(i)                                     the duties of the Trustee shall be determined
solely by the express provisions of this Indenture and the TIA 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 or the TIA against the Trustee; and


 


(ii)                                  in the absence of bad faith on its part, the
Trustee may conclusively rely, without investigation, as to the truth or the
statements and the correctness of the opinions expressed therein, upon any
statements, certificates or opinions furnished to the Trustee and conforming to
the requirements of this Indenture. However, the Trustee shall examine the
certificates and opinions to determine whether or not they conform on their
face to the requirements of this Indenture but not confirm or investigate the
accuracy of mathematical calculations or other facts stated therein or
otherwise verify the contents thereof.


 


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


 


(i)                                     this paragraph does not limit the effect of
paragraph (b) of this Section 7.1;


 


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


 


(iii)                               the Trustee shall not be liable with respect to any action it takes or
omits to take in good faith in accordance with a direction received by it
pursuant to Section 6.5.


 


(d)                                 Whether or not therein expressly so provided,
every provision of this Indenture that in any way relates to the Trustee is subject
to this Section 7.1.


 


(e)                                  No provision of this Indenture shall require
the Trustee to expend or risk its own funds or incur any liability. The Trustee
shall be under no obligation to exercise any of its rights and powers under
this Indenture at the request of any Holder, pursuant to the provisions of this
Indenture, including, without limitation, Section 6.5, unless such Holder
shall have offered to the Trustee security and indemnity reasonably
satisfactory to it against any loss, liability or expense which might be
incurred by it in compliance with such request or direction.


 


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(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 7.2.                                   Rights of Trustee.


 


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


 


(b)                                 Before the Trustee acts or refrains from
acting, it may require an Officers’ Certificate or an Opinion of Counsel or
both. The Trustee shall not be liable for any action it takes or omits to take
in good faith in reliance on such Officers’ Certificate or Opinion of Counsel. The
Trustee may consult with counsel and the written advice of such counsel and
Opinions 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,
accountants, experts and such other professionals as the Trustee deems
necessary, advisable or appropriate and shall not be responsible for the
misconduct or negligence of any attorney, accountant, expert or other such
professional appointed with due care.


 


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


 


(e)                                  Unless otherwise specifically provided
herein, any demand, request, direction or notice from the Company shall be
sufficiently evidenced by a written order signed by two Officers of the
Company.


 


(f)                                    The Trustee shall not be charged with
knowledge of any Default or Event of Default under Section 6.1 (other than
under Section 6.1(a) (subject to the following sentence) or
Section 6.1(b)) unless either (i) a Responsible Officer shall have actual
knowledge thereof, or (ii) the Trustee shall have received notice thereof in
accordance with Section 12.2 from the Company or any Holder of the Notes. The
Trustee shall not be charged with knowledge of the Company’s obligation to pay
Additional Interest, or the cessation of such obligation, unless the Trustee
receives written notice thereof from the Company or any Holder.


 


(g)                                 The Trustee shall have no duty (i) to
cause the maintenance of any insurance, (ii) to see to the payment or
discharge of any tax, charge or Lien levied against any part of the Collateral,
or (iii) to see to the filing or refiling of any Security Documents.


 


Section 7.3.                                   Individual Rights of Trustee.


 


The
Trustee in its individual or any other capacity may become the owner or pledgee
of Notes and may otherwise deal with the Company or any Affiliate of the
Company with the same rights it would have if it were not Trustee. However, in
the event that the Trustee acquires any conflicting interest within the meaning
of the TIA it must eliminate such conflict within 90 days, apply (subject to
the consent of the Company) to the Commission for permission to continue as
trustee or resign. Any Agent may do the same with like rights and duties. The
Trustee shall also be subject to Sections 7.10 and 7.11.


 


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Section 7.4.                                   Trustee’s Disclaimer.


 


The
Trustee shall not be responsible for and makes no representation as to the
validity or adequacy of this Indenture or the Notes, it shall not be
accountable for the Company’s use of the proceeds from the Notes or any money
paid to the Company or upon the Company’s direction under any provision of this
Indenture, it shall not be responsible for the use or application of any money
received by any Paying Agent other than the Trustee, and it shall not be
responsible for any statement or recital herein or any statement in the Notes
or any other document in connection with the sale of the Notes or pursuant to
this Indenture other than its certificate of authentication.


 


Section 7.5.                                   Notice of Defaults.


 


If
a Default or Event of Default occurs and is continuing and the Trustee has
actual knowledge thereof, the Trustee shall mail to Holders of Notes a notice
of the Default or Event of Default within 90 days after it occurs. Except in
the case of a Default in payment on any Note (including the failure to make a
mandatory repurchase pursuant hereto), 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 7.6.                                   Reports by Trustee to Holders of the Notes.


 


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


 


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


 


Section 7.7.                                   Compensation, Reimbursement and Indemnity.


 


The
Company shall pay to the Trustee from time to time reasonable compensation for
its acceptance of this Indenture and the rendering by it of the services
required hereunder as shall be agreed upon in writing by the Company and the
Trustee. The Trustee’s compensation shall not be limited by any law on
compensation of a trustee of an express trust. The Company shall reimburse the
Trustee promptly upon request for all reasonable disbursements, advances and
expenses incurred or made by or on behalf of it in addition to the compensation
for its services. Such expenses shall include the reasonable compensation,
disbursements and expenses of the Trustee’s attorneys, accountants, experts and
such other professionals as the Trustee deems necessary, advisable or
appropriate.


 


The
Company shall indemnify the Trustee against any and all losses, liabilities or
expenses (including reasonable attorneys’ fees and expenses) incurred by it
arising out of or in connection with the acceptance or administration of its
duties under this Indenture (including its duties under Section 9.6), including
the costs and expenses of enforcing this Indenture or any Guarantee against the
Company or a Guarantor (including this Section 7.7) and defending itself
against or investigating any claim (whether asserted by the Company, any
Guarantor, any Holder or any other Person) or liability in connection with the
exercise or performance of any of its powers or duties hereunder, except to the
extent any such loss, liability or expense may be attributable to its
negligence or willful misconduct. The Trustee shall notify the Company promptly
of any claim for which it may


 


60

















 


seek
indemnity. Failure by the Trustee to so notify the Company shall not relieve
the Company of its obligations hereunder. The Company shall defend any claim or
threatened claim asserted against the Trustee, and the Trustee shall cooperate
in the defense. The Trustee may have separate counsel and the Company shall pay
the reasonable fees and expenses of such counsel. The Company need not pay for
any settlement made without its consent, which consent shall not be
unreasonably withheld.


 


The
obligations of the Company under this Section 7.7 shall survive the
resignation or removal of the Trustee, the satisfaction and discharge of this
Indenture and the termination of this Indenture.


 


To
secure the Company’s payment obligations in this Section 7.7, 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, Redemption Price or
Purchase Price of or Additional Interest, if any, or interest on, particular
Notes. Such Lien shall survive the resignation or removal of the Trustee, the
satisfaction and discharge of this Indenture and the termination of this
Indenture.


 


When
the Trustee incurs expenses or renders services after an Event of Default
specified in Section 6.1(f) or (g) 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.


 


Section 7.8.                                   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 7.8.


 


The
Trustee may resign in writing at any time and be discharged from the trust
hereby created by so notifying the Company. The Holders of Notes of 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;


 


(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, receiver or public officer takes
charge of the Trustee or its property for the purpose of rehabilitation,
conversion or liquidation; or


 


(d)                                 the Trustee becomes incapable of acting.


 


If
the Trustee resigns or is removed or if a vacancy exists in the office of
Trustee for any reason, the Company shall promptly appoint a successor Trustee.
Within one year after the date on which 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 30 days after the retiring
trustee resigns or is removed, the retiring Trustee, the Company, or the
Holders of Notes of at least 10% in principal amount of the then outstanding
Notes may petition any court of competent jurisdiction for the appointment of a
successor Trustee.


 


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If
the Trustee, after written request by any Holder of a Note who has been a bona
fide holder of a Note or Notes 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
Company 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 7.7. Notwithstanding replacement of the Trustee
pursuant to this Section 7.8, the Company’s obligations under
Section 7.7 shall continue for the benefit of the retiring Trustee.


 


Section 7.9.                                   Successor Trustee by Merger, Etc.


 


If
the Trustee consolidates, merges or converts into, or transfers all or
substantially all of its corporate trust business to, another corporation that
is eligible under Section 7.10, the successor corporation without any
further act shall be the successor Trustee.


 


Section 7.10.                             Eligibility; Disqualification.


 


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


 


This
Indenture shall always have a Trustee who satisfies the requirements of TIA
§ 310(a)(1), (2) and (5). The Trustee is subject to TIA § 310(b).


 


Section 7.11.                             Preferential Collection of Claims Against Company.


 


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


 


ARTICLE VIII.


 


LEGAL DEFEASANCE AND COVENANT DEFEASANCE


 


Section 8.1.                                   Option to Effect Legal Defeasance or Covenant
Defeasance.


 


The
Company may, at its option evidenced by a resolution of its Board of Directors
set forth in an Officers’ Certificate, at any time, elect to have its
obligations and the obligations of any Guarantors discharged with respect to
the then outstanding Notes in accordance with either Section 8.2 or 8.3 as
provided in this Article VIII.


 


Section 8.2.                                   Legal Defeasance and Discharge.


 


Upon
the Company’s exercise under Section 8.1 of the option applicable to this
Section 8.2, the Company and any Guarantor shall, subject to the
satisfaction of the conditions set forth in Section 8.4, be


 


62

















 


deemed
to have been discharged from its obligations with respect to all outstanding
Notes on the date the conditions set forth below are satisfied (hereinafter, “Legal
Defeasance”). For this purpose, Legal Defeasance means that the Company and
the Guarantors, if any, shall be deemed to have paid and discharged the entire
Indebtedness represented by the outstanding Notes and any Guarantees thereon,
which shall thereafter be deemed to be “outstanding” only for the purposes of
Section 8.5 and the other Sections of this Indenture referred to in
clauses (a) through (d) below, and to have satisfied all their other
obligations under such Notes, this Indenture and the Security Documents (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 payments in respect of the principal of, premium, if any, and interest
on the Notes when such payments are due;


 


(b)                                 the Company’s obligations with respect to the
Notes concerning issuing temporary Notes, registration of Notes, mutilated,
destroyed, lost or stolen Notes and the maintenance of an office or agency for
payments;


 


(c)                                  the rights, powers, trust, duties and
immunities of the Trustee and the Company’s obligations in connection
therewith; and


 


(d)                                 the Legal Defeasance provisions of this
Article VIII.


 


Subject
to compliance with this Article VIII, the Company may exercise its option
under this Section 8.2, notwithstanding the prior exercise of its option
under Section 8.3.


 


Section 8.3.                                   Covenant Defeasance.


 


Upon
the Company’s exercise under Section 8.1 of the option applicable to this
Section 8.3, the Company shall, subject to the satisfaction of the
conditions set forth in Section 8.4, be released from its obligations
under the covenants contained in Sections 3.9, 3.10, 3.11, 4.3, 4.4, 4.5, 4.7
through 4.12 and 4.14 through 4.19, both inclusive, and Section 5.1(b),
Article XI and Article XII with respect to the outstanding Notes on and after
the date the conditions set forth below are satisfied (hereinafter, “Covenant
Defeasance”), and the Notes shall thereafter be deemed not “outstanding”
for the purposes of any direction, waiver, consent or declaration or Act of
Holders (and the consequences of any thereof) in connection with such
covenants, but shall continue to be deemed “outstanding” for all other purposes
hereunder (it being understood that such Notes shall not be deemed outstanding
for accounting purposes). For this purpose, Covenant Defeasance means that,
with respect to the outstanding Notes, the Company may omit to comply with and
shall have no liability in respect of any term, condition or limitation set
forth in any such covenant, whether directly or indirectly, by reason of any
reference elsewhere herein to any such covenant or by reason of any reference
in any such covenant to any other provision herein or in any other document,
and such omission to comply shall not constitute a Default or an Event of
Default under Section 6.1, 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 8.1 of the option applicable to this
Section 8.3, subject to the satisfaction of the conditions set forth in
Section 8.4, Sections 6.1(c) through 6.1(j) shall not constitute Events of
Default.


 


Section 8.4.                                   Conditions to Legal or Covenant Defeasance.


 


The
following are the conditions precedent to the application of either
Section 8.2 or 8.3 to the outstanding Notes as specified:


 


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In
order to exercise either Legal Defeasance or Covenant Defeasance:


 


(1)                                  the Company must irrevocably deposit with the
Trustee, in trust, for the benefit of the Holders cash in U.S. dollars, non-callable
U.S. government obligations, or a combination thereof, in such amounts as will
be sufficient, in the opinion of a nationally recognized firm of independent
public accountants, to pay the principal of, premium, if any, and interest on
the Notes on the stated date for payment thereof or on the applicable Redemption
Date, as the case may be;


 


(2)                                  in the case of Legal Defeasance, the Company
shall have delivered to the Trustee an Opinion of Counsel in the United States
reasonably acceptable to the Trustee confirming that:


 


(a)                                  the Company has received from, or there has
been published by, the Internal Revenue Service a ruling; or


 


(b)                                 since the date of this Indenture, there has
been a change in the applicable federal income tax law,


 


in
either case to the effect that, and based thereon such Opinion of Counsel shall
confirm that, the Holders 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;


 


(3)                                  in the case of Covenant Defeasance, the
Company shall have delivered to the Trustee an Opinion of Counsel in the United
States reasonably acceptable to the Trustee confirming that the Holders 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;


 


(4)                                  no Default or Event of Default shall have
occurred and be continuing on the date of such deposit (other than a Default or
an Event of Default resulting from the borrowing of funds to be applied to such
deposit and the grant of any Lien securing such borrowings);


 


(5)                                  such Legal Defeasance or Covenant Defeasance
shall not result in a breach or violation of, or constitute a default under
this Indenture (other than a Default or an Event of Default resulting from the
borrowing of funds to be applied to such deposit and the grant of any Lien
securing such borrowings) or any other material agreement or instrument to
which the Company or any of its Restricted Subsidiaries is a party or by which
the Company or any of its Restricted Subsidiaries is bound;


 


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


 


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


 


Notwithstanding
the foregoing, the Opinion of Counsel required by clause (2) above with respect
to a Legal Defeasance need not be delivered if all Notes not theretofore
delivered to the Trustee for cancellation


 


64

















 


(1) have become due and payable
or (2) will become due and payable on the maturity date within one year,
under arrangements reasonably satisfactory to the Trustee for the giving of
notice of redemption by the Trustee in the name, and at the expense, of the
Company.


 


Section 8.5.                                   Deposited Money and U.S. Government
Securities to Be Held in Trust; Other Miscellaneous Provisions.


 


Subject
to Section 8.6, all money and U.S. Government Securities (including the
proceeds thereof) deposited with the Trustee (or other qualifying trustee,
collectively for purposes of this Section 8.5 only) pursuant to
Section 8.4 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
(other than the Company) as the Trustee may determine, to the Holders of such
Notes of all sums due and to become due thereon in respect of principal,
Redemption Price or Purchase Price of, and Additional Interest, if any, or
interest on, the Notes, that such money need not be segregated from other funds
except to the extent required by law.


 


The
Company shall pay and indemnify the Trustee against any tax, fee or other
charge imposed on or assessed against the cash or U.S. Government Securities
deposited pursuant to Section 8.4 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 VIII 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 U.S. Government Securities held by it as provided in Section 8.4
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 8.4), 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 8.6.                                   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, Redemption Price or
Purchase Price of, or Additional Interest, if any, or interest on any Note and
remaining unclaimed for two years after such amount has become due and payable
shall be paid to the Company on its request or (if then held by the Company)
shall be discharged from such trust; and the Holder of such Note shall thereafter
look only to the Company for payment thereof as a general creditor, 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, at the expense of the Company, if required by applicable law cause
to be published once, in The New York Times and The Wall Street
Journal (national editions), notice that such money remains unclaimed and
that, after a date specified therein, which shall not be less than 30 days
after the date of such notification or publication, any unclaimed balance of
such money then remaining will be repaid to the Company.


 


Section 8.7.                                   Reinstatement.


 


If
the Trustee or Paying Agent is unable to apply any United States dollars or
U.S. Government Securities in accordance with Section 8.2 or 8.3, 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 obligations of the Company under this Indenture and the Notes shall be
revived and reinstated as though no deposit had occurred pursuant to
Section 8.2 or 8.3 until such time as the Trustee or Paying Agent is
permitted to apply all such money in accordance with Section 8.2 or 8.3,
as the case may be; provided, however, that, if the Company


 


65

















 


makes any payment with respect
to any Note following the reinstatement of its obligations, the Company shall
be subrogated to the rights of the Holders of such Notes to receive such
payment from the money held by the Trustee or Paying Agent.


 


ARTICLE IX.


 


AMENDMENT, SUPPLEMENT AND WAIVER


 


Section 9.1.                                   Without Consent of Holders of Notes.


 


Notwithstanding
Section 9.2 of this Indenture, the Company, the Guarantors, if any, and
the Trustee may amend or supplement this Indenture, the Notes or any Security
Document without the consent of any Holder of a Note:


 


(a)                                  to cure any ambiguity, omission, defect or
inconsistency so long as such changes do not adversely affect the rights of any
of the Holders in any material respect.


 


(b)                                 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 V;


 


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


 


(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 rights hereunder of any Holder of the Notes in any
material respect.


 


Upon
the written request of the Company, accompanied by a Board Resolution
(evidenced by an Officers’ Certificate) authorizing the execution of any such
amended or supplemental indenture, and upon receipt by the Trustee of the
documents described in Section 7.2, the Trustee shall join with the
Company in the execution of any amended or supplemental indenture authorized or
permitted by the terms of this Indenture and to make any further appropriate
agreements and stipulations that may be therein contained, but the Trustee shall
not be obligated to enter into such amended or supplemental indenture that
affects its own rights, duties or immunities under this Indenture or otherwise.


 


Section 9.2.                                   With Consent of Holders of Notes.


 


Except
as provided below in this Section 9.2, the Company, the Trustee and the
Guarantors, if any, may amend or supplement this Indenture or 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 tender offer or exchange offer for the Notes), and, subject
to Sections 6.2, 6.4 and 6.7, any existing Default or Event of Default or
compliance with any provision of this Indenture, the Notes may be waived with
the consent of the Holders of a majority in principal amount of the then
outstanding Notes (including consents obtained in connection with a tender
offer or exchange offer for the Notes).


 


Without
the consent of each Holder affected, an amendment or waiver may not (with
respect to any Notes held by a non-consenting Holder):


 


(1)                                  reduce the amount of Notes whose Holders must
consent to an amendment;


 


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(2)                                  reduce the rate of or change or have the
effect of changing the time for payment of interest, including defaulted
interest, on any Notes;


 


(3)                                  reduce the principal of or change or have the
effect of changing the fixed maturity of any Notes, or change the date on which
any Notes may be subject to redemption or reduce the redemption price therefor,
other than prior to the Company’s obligation to purchase notes under provisions
relating to the Company’s obligation to make and consummate a Change of Control
Offer in the event of a Change of Control or to make and consummate a Net Proceeds
Offer with respect to any Asset Sale;


 


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


 


(5)                                  make any change in provisions of this
Indenture protecting the right of each Holder to receive payment of principal
of and interest on such Note on or after the due date thereof or to bring suit
to enforce such payment (except a rescission of acceleration of the Notes by
the Holders of at least a majority in aggregate principal amount of the Notes
and a waiver of the payment default that resulted from such acceleration), or
permitting Holders of a majority in principal amount of Notes to waive Defaults
or Events of Default;


 


(6)                                  after the Company’s obligation to purchase
Notes arises thereunder, amend, change or modify in any material respect the
obligation of the Company to make and consummate a Change of Control Offer in
the event of a Change of Control or make and consummate a Net Proceeds Offer
with respect to any Asset Sale that has been consummated or, after such Change
of Control has occurred or such Asset Sale has been consummated, modify any of
the provisions or definitions with respect thereto; or


 


(7)                                  modify or change any provision of this
Indenture or the related definitions affecting the ranking of the Notes or any
Guarantees in a manner materially adverse to the Holders of the Notes; or


 


(8)                                  release any Guarantor that is a Significant
Subsidiary from any of its obligations under its Guarantee or this Indenture
otherwise than in accordance with the terms of this Indenture.


 


Upon
the written request of the Company accompanied by a resolution of the Board
(evidenced by an Officers’ Certificate) 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 7.2, the Trustee shall join with the Company in the execution of
such amended or supplemental indenture unless such amended or supplemental
indenture affects the Trustee’s own rights, duties or immunities under this
Indenture or otherwise, in which case the Trustee may in its discretion, but
shall not be obligated to, enter into such amended or supplemental indenture.


 


It
shall not be necessary for the consent of the Holders of Notes under this
Section 9.2 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 9.2 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.


 


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Section 9.3.                                   Compliance with Trust Indenture Act.


 


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


 


Section 9.4.                                   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 therefore binds every Holder.


 


Section 9.5.                                   Notation on or Exchange of Notes.


 


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


 


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


 


Section 9.6.                                   Trustee to Sign Amendment, Etc.


 


The
Trustee shall sign any amended or supplemental indenture authorized pursuant to
this Article IX if the amendment or supplement does not adversely affect
the rights, duties, liabilities or immunities of the Trustee. The Company may
not sign an amended or supplemental indenture until the Board approves such
amended or supplemental indenture. In executing any amended or supplemental
indenture, the Trustee shall be entitled to receive, in addition to the
documents required by Sections 12.4 and 12.5, and, subject to Section 7.1,
shall be fully protected in relying upon, an Officers’ Certificate and an
Opinion of Counsel stating that (i) the execution of such amended or
supplemental indenture is authorized or permitted by this Indenture, (ii) no
Event of Default shall occur as a result of the execution of such Officers’
Certificate or the delivery of such Opinion of Counsel and (iii) the amended or
supplemental indenture complies with the terms of this Indenture.


 


ARTICLE X.


 


GUARANTEE


 


Section 10.1.                             Unconditional Guarantee.


 


Each
Guarantor, if any, upon the execution and delivery of a Guarantee pursuant to
Section 4.16, hereby unconditionally guarantees, on a senior basis and jointly
and severally, to each Holder of a Note authenticated and delivered by the
Trustee and to the Trustee and its successors and assigns, the Notes or the
obligations of the Company hereunder or thereunder, that:  (i) the principal of and interest on the
Notes will be promptly paid in full when due, subject to any applicable grace
period, whether at maturity, by acceleration, upon redemption, purchase
pursuant to Article III or otherwise, and interest on the overdue principal, if
any, and interest on any interest, to the extent lawful, of the Notes and all
other obligations of the Company to the Holders or the Trustee hereunder or
thereunder will be promptly paid in full or performed, all in accordance with
the terms hereof and thereof; and (ii) in case of any extension of time of
payment or renewal of any Notes or of any


 


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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, subject to any applicable grace period,
whether at Stated Maturity, by acceleration, upon redemption, purchase pursuant
to Article III or otherwise, subject, however, in the case of clauses (i) and
(ii) above, to the limitations set forth in Section 10.3. Each Guarantor, if
any, upon the execution and delivery of a Guarantee pursuant to Section 4.16,
hereby agrees that its obligations hereunder shall be unconditional,
irrespective of the validity, regularity or enforceability of the Notes or this
Indenture, the absence of any action to enforce the same, any waiver or consent
by any Holder of the Notes with respect to any provisions hereof or thereof
(other than a waiver of all or part of the provisions of this Article X), the
recovery of any judgment against the Company, and 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, if any, upon the execution
and delivery of a Guarantee pursuant to Section 4.16, 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 covenants
that this Guarantee will not be discharged except by complete performance of
the obligations contained in the Notes, this Indenture and in this Guarantee. If
any Holder or the Trustee is required by any court or otherwise to return to
the Company, any Guarantor, or any custodian, trustee, liquidator or other
similar official acting in relation to the Company or any Guarantor, any amount
paid by the Company or any Guarantor to the Trustee or such Holder, this
Guarantee, to the extent theretofore discharged, shall be reinstated in full
force and effect. Each Guarantor, if any, upon the execution and delivery of a
Guarantee pursuant to Section 4.16, further agrees that, as between each
Guarantor, 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 VI for the purposes of this Guarantee, notwithstanding
any stay, injunction or other prohibition preventing such acceleration in
respect of the obligations guaranteed hereby, and (y) in the event of any
acceleration of such obligations as provided in Article VI, such obligations
(whether or not due and payable) shall forthwith become due and payable by each
Guarantor for the purpose of this Guarantee.


 


Section 10.2.                             Severability.


 


In
case any provision of this Guarantee 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 10.3.                             Limitation of Guarantor’s Liability.


 


Each
Guarantor, if any, upon the execution and delivery of a Guarantee pursuant to
Section 4.16, and by its acceptance hereof each Holder hereby confirms that it
is the intention of all such parties that the guarantee by such Guarantor
pursuant to its Guarantee not constitute a fraudulent transfer or conveyance
for purposes of any Bankruptcy Law, the Uniform Fraudulent Conveyance Act, the
Uniform Fraudulent Transfer Act or any similar Federal or state law. To
effectuate the foregoing intention, the Holders and such Guarantor hereby
irrevocably agree that the obligations of such Guarantor under the Guarantee
shall be limited to the maximum amount as will, after giving effect to all
other contingent and fixed liabilities of such Guarantor and after giving
effect to any collections from or payments made by or on behalf of any other
Guarantor in respect of the obligations of such other Guarantor under its
Guarantee or pursuant to Section 10.5, result in the obligations of such
Guarantor under the Guarantee not constituting such fraudulent transfer or
conveyance.


 


Section 10.4.                             Release of Guarantor.


 


(a)                                  Any Guarantee by a Restricted Subsidiary
pursuant to Section 4.16 shall be automatically and unconditionally released
and discharged, without any further action required on the part of the Trustee
or any Holder of the Notes, upon:


 


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(1)                                  the unconditional release of such Restricted
Subsidiary from its liability in respect of the Indebtedness in connection with
which such Guarantee was executed and delivered pursuant to Section 4.16;


 


(2)                                  the legal defeasance of the Notes as
described under Sections 8.2 and 8.3;


 


(3)                                  (A) the merger of any Guarantor into the
Company, (B) the dissolution of any Guarantor into the Company or (C) the
transfer of all or substantially all of the assets of any Guarantor to the
Company;


 


(4)                                  the sale or other disposition of all or
substantially all of the assets of, or the sale of all of the capital stock of,
or other disposition (by merger or otherwise) to any Person which is not a
Restricted Subsidiary of the Company of all of the Company’s Capital Stock in,
or all or substantially all of the assets of, such Restricted Subsidiary; provided that (A) such sale or disposition
of such Capital Stock or assets is otherwise in compliance with the terms of
this Indenture and (B) such assumption, guarantee or other liability of such
Restricted Subsidiary has been released by the holders of the other
Indebtedness so guaranteed; or


 


(5)                                  the designation of such Restricted Subsidiary
as an Unrestricted Subsidiary in accordance with this Indenture.


 


(b)                                 The Trustee shall deliver an appropriate
instrument evidencing such release upon receipt of a request by the Company accompanied
by an Officers’ Certificate and Opinion of Counsel certifying as to the
compliance with this Section 10.4. Any Guarantor not so released shall remain
liable for the full amount of principal of and interest on the Notes as
provided in this Article X.


 


(c)                                  All Guarantees shall be of no further force
and effect upon the occurrence of a Legal Defeasance or a Covenant Defeasance
pursuant to Section 8.2 or 8.3, subject to reinstatement pursuant to
Section 8.7 under the circumstances described therein.


 


Section 10.5.                             Contribution.


 


In
order to provide for just and equitable contribution among the Guarantors, the
Guarantors agree, inter se, that
in the event any payment or distribution is made by any Guarantor (a “Funding
Guarantor”) under the Guarantee, such Funding Guarantor shall be entitled
to a contribution from all other Guarantors in a pro rata amount based on the Adjusted Net Assets (as defined
below) of each Guarantor (including the Funding Guarantor) for all payments,
damages and expenses incurred by that Funding Guarantor in discharging the
Company’s obligations with respect to the Notes or any other Guarantor’s
obligations with respect to the Guarantee. “Adjusted Net Assets” of such
Guarantor at any date shall mean the lesser of the amount by which (x) the
fair value of the property of such Guarantor exceeds the total amount of
liabilities, including, without limitation, contingent liabilities (after
giving effect to all other fixed and contingent liabilities incurred or assumed
on such date), but excluding liabilities under the Guarantee, of such Guarantor
at such date and (y) the present fair salable value of the assets of such
Guarantor at such date exceeds the amount that will be required to pay the
probable liability of such Guarantor on its debts (after giving effect to all
other fixed and contingent liabilities incurred or assumed on such date),
excluding debt in respect of the Guarantee of such Guarantor, as they become
absolute and matured.


 


Section 10.6.                             Waiver of Subrogation.


 


Until
all Obligations under the Notes and this Indenture are paid in full, each
Guarantor, if any, upon the execution and delivery of a Guarantee pursuant to
Section 4.16, hereby irrevocably waives any claims


 


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or other rights which it may
now or hereafter acquire against the Company that arise from the existence,
payment, performance or enforcement of such Guarantor’s obligations under the
Guarantee and this Indenture, including, without limitation, any right of subrogation,
reimbursement, exoneration, indemnification, and any right to participate in
any claim or remedy of any Holder against the Company, whether or not such
claim, remedy or right arises in equity, or under contract, statute or common
law, including, without limitation, the right to take or receive from the
Company, directly or indirectly, in cash or other property or by set-off or in
any other manner, payment or security on account of such claim or other rights.
If any amount shall be paid to any Guarantor in violation of the preceding
sentence and the Notes shall not have been paid in full, such amount shall have
been deemed to have been paid to such Guarantor for the benefit of, and held in
trust for the benefit of, the Holders, and shall, forthwith be paid to the
Trustee for the benefit of such Holders to be credited and applied upon the
Notes, whether matured or unmatured, in accordance with the terms of this
Indenture. Each Guarantor, if any, upon the execution and delivery of a
Guarantee pursuant to Section 4.16, acknowledges that it will receive direct
and indirect benefits from the financing arrangements contemplated by this
Indenture and that the waiver set forth in this Section 10.6 is knowingly made
in contemplation of such benefits.


 


Section 10.7.                             Execution of Guarantee.


 


To
evidence its guarantee to the Holders set forth in this Article X, each
Guarantor required to execute and deliver of a Guarantee pursuant to Section
4.16 hereby agrees to execute the Guarantee in substantially the form attached
hereto as Exhibit C, which shall be endorsed on each Note ordered to be
authenticated and delivered by the Trustee. Each Guarantor, upon the execution
and delivery of a Guarantee pursuant to Section 4.16, hereby agrees that its
Guarantee shall remain in full force and effect notwithstanding any failure to
endorse on each Note a notation of such Guarantee. Each such Guarantee shall be
signed on behalf of each Guarantor by two Officers, or an Officer and an
Assistant Secretary or one Officer shall sign and one Officer or an Assistant
Secretary (each of whom shall, in each case, have been duly authorized by all
requisite corporate actions) shall attest to such Guarantee prior to the
authentication of the Note on which it is endorsed, and the delivery of such
Note by the Trustee, after the authentication thereof hereunder, shall
constitute due delivery of such Guarantee on behalf of such Guarantor. Such
signatures upon the Guarantee may be by manual or facsimile signature of such
officers and may be imprinted or otherwise reproduced on the Guarantee, and in
case any such officer who shall have signed the Guarantee shall cease to be
such officer before the Note on which such Guarantee is endorsed shall have
been authenticated and delivered by the Trustee or disposed of by the Company,
such Note nevertheless may be authenticated and delivered or disposed of as
though the Person who signed the Guarantee had not ceased to be such officer of
the Guarantor.


 


Section 10.8.                             Waiver of Stay, Extension or Usury Laws.


 


Each
Guarantor, upon the execution and delivery of a Guarantee pursuant to Section
4.16, hereby covenants (to the extent that it may lawfully do so) that it will
not at any time insist upon, plead, or in any manner whatsoever claim or take
the benefit or advantage of, any stay or extension law or any usury law or
other law that would prohibit or forgive each such Guarantor from performing
its Guarantee as contemplated herein, wherever enacted, now or at any time
hereafter in force, or which may affect the covenants or the performance of
this Indenture; and (to the extent that it may lawfully do so) each such
Guarantor hereby expressly waives all benefit or advantage of any such law, and
covenants that it will not hinder, delay or impede the execution of any power
herein granted to the Trustee, but will suffer and permit the execution of
every such power as though no such law had been enacted.


 


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ARTICLE XI.


 


SATISFACTION AND DISCHARGE


 


Section 11.1.                             Satisfaction and Discharge.


 


This
Indenture will be discharged and will cease to be of further effect (except as
set forth below) as to all outstanding Notes and the Trustee, at the expense of
the Company, shall execute proper instruments acknowledging satisfaction and
discharge of this Indenture when:


 


(1)                                  either:


 


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


 


(b)                                 all Notes not theretofore delivered to the
Trustee for cancellation (1) have become due and payable by reason of the
mailing of a notice of redemption or otherwise or (2) will become due and
payable within one year, or are to be called for redemption within one year,
under arrangements reasonably satisfactory to the Trustee for the giving of
notice of redemption by the Trustee in the name, and at the expense, of the
Company, and the Company has irrevocably deposited or caused to be deposited
with the Trustee funds in an amount sufficient to pay and discharge the entire
Indebtedness on the Notes not theretofore delivered to the Trustee for
cancellation, for principal of, premium, if any, and interest on the Notes to
the date of maturity or redemption, as the case may be, together with
irrevocable instructions from the Company directing the Trustee to apply such
funds to the payment thereof at maturity or redemption, as the case may be;


 


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


 


(3)                                  the Company has delivered to the Trustee an
Officers’ Certificate and an Opinion of Counsel, which Opinion of Counsel may
be subject to customary assumptions and exclusions, stating that all conditions
precedent under this Indenture 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 2.3, 2.4, 2.6, 2.7, 2.11, 7.7, 7.8, 12.2, 12.3 and 12.4, and the
Trustee’s and Paying Agent’s obligations in Section 11.2 shall survive until
the Notes are no longer outstanding. Thereafter, only the Company’s obligations
in Section 7.7 shall survive.


 


Section 11.2.                             Application of Trust.


 


All
money deposited with the Trustee pursuant to Section 11.1 shall be held in
trust and, at the written direction of the Company, be invested prior to
maturity in U.S. Government Securities, 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.


 


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ARTICLE XII.


 


MISCELLANEOUS


 


Section 12.1.                             Trust Indenture Act Controls.


 


If
any provision hereof limits, qualifies or conflicts with a provision of the TIA
or another provision that would be required or deemed under such Act to be part
of and govern this Indenture if this Indenture were subject thereto, the latter
provision shall control. If any provision of this Indenture modifies or
excludes any provision of the TIA that may be so modified or excluded, the latter
provision shall be deemed to apply to this Indenture as so modified or to be
excluded, as the case may be.


 


Section 12.2.                             Notices.


 


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


 


	
  If
  to the Company:

  
	
   

  
	
  MxEnergy Holdings Inc.

  
	
  595 Summer Street

  
	
  Stamford, CT 06901

  
	
  Attention: Tom Hartmann

  
	
   

  
	
  With
  a copy to:

  
	
   

  
	
  Paul, Hastings, Janofsky & Walker LLP

  
	
  75 East 55th Street

  
	
  New York, New York 10022

  
	
  Attention: Michael Chernick

  
	
   

  
	
  If
  to the Trustee:

  
	
   

  
	
  Law Debenture Trust Company of New York

  
	
  767 Third Avenue

  
	
  31st Floor

  
	
  New York, NY 10017

  
	
  Attention: Boris Treyger

  
	
   

  
	
  If
  to the Paying Agent or Registrar:

  
	
   

  
	
  Deutsche Bank Trust Company Americas

  
	
  60 Wall Street, 27th Floor

  
	
  Mail Stop: NYC60-2710

  
	
  New York, NY 10005

  
	
  Attention: Trust & Securities Services

  



 


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  with
  a copy to:

  
	
   

  
	
  Deutsche Bank National Trust Company

  
	
  Trust & Securities Services

  
	
  25 DeForest Avenue

  
	
  Mail Stop: SUJ01-0105

  
	
  Summit, NJ 07901

  



 


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


 


All
notices and communications (other than those sent to Holders) shall be deemed
to have been duly given:  at the time
delivered by hand, if personally delivered; five Business Days after being
deposited in the mail, postage prepaid, if mailed, or in the case of any offer
to purchase Notes under Section 3.9, 3.10 or 3.11 upon the date the
communication is postmarked; when answered back, if telexed; when receipt
acknowledged, if telecopied; and the next Business Day after timely delivery to
the courier, if sent by overnight air courier guaranteeing next day delivery,
except that notices to the Trustee shall be effective only upon receipt.


 


Any
notice or communication to a Holder shall be mailed by first class mail,
certified or registered, return receipt requested, or by overnight air courier
guaranteeing next day delivery to its address shown on the register kept by the
Registrar. Any notice or communication shall also be so mailed to any Person
described in TIA § 313(c), to the extent required by the TIA. Failure to
mail a notice or communication to a Holder or any defect in it shall not affect
its sufficiency with respect to other Holders.


 


If
a notice or communication is mailed in the manner provided above within the
time prescribed, it is duly given, whether or not the address receives it.


 


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


 


Section 12.3.                             Communication by Holders of Notes with Other Holders of Notes.


 


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


 


Section 12.4.                             Certificate and Opinion as to Conditions Precedent.


 


Upon
any request or application by the Company and/or any Guarantor to the Trustee
to take any action under this Indenture, the Company and/or any Guarantor shall
furnish to the Trustee:


 


(a)                                  an Officers’ Certificate in form and
substance reasonably satisfactory to the Trustee (which shall include the
statements set forth in Section 12.5) 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)                                 if requested by the Trustee, an Opinion of
Counsel in form and substance reasonably satisfactory to the Trustee (which
shall include the statements set forth in Section 12.5) stating that, in
the opinion of such counsel, all such conditions precedent and covenants have
been satisfied.


 


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Section 12.5.                             Statements Required in Certificate or Opinion.


 


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


 


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


 


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


 


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


 


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


 


Section 12.6.                             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 12.7.                             No Personal Liability of Directors, Officers, Employees and
Stockholders.


 


No
past, present or future director, officer, employee, incorporator, agent or
stockholder or Affiliate of the Company, as such, shall have any liability for
any obligations of the Company under the Notes or this Indenture or for any
claim based on, in respect of, or by reason of, such obligations or their creation.
No past, present or future director, officer, employee, incorporator, agent or
stockholder or Affiliate of any of the Guarantors, if any, as such, shall have
any liability for any obligations of the Guarantors under the Guarantees or
this Indenture or for any claim based on, in respect of, or by reason of, such
obligations or their creation. Each Holder of Notes and Guarantees by accepting
a Note and a Guarantee waives and releases all such liabilities. The waiver and
release are part of the consideration for issuance of the Notes and the
Guarantees. Such waiver may not be effective to waive liabilities under the
federal securities law and it is the view of the Commission that such a waiver
is against public policy.


 


Section 12.8.                             Governing Law; Submission to Jurisdiction; Waiver of Jury Trial.


 


THE
VALIDITY AND INTERPRETATION OF THIS INDENTURE, THE GUARANTEES, IF ANY, AND THE
NOTES SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE
STATE OF NEW YORK, BUT WITHOUT GIVING EFFECT TO APPLICABLE PRINCIPLES OF
CONFLICTS OF LAW TO THE EXTENT THAT THE APPLICATION OF THE LAW OF ANOTHER
JURISDICTION WOULD BE REQUIRED THEREBY. EACH PARTY HERETO AGREES TO SUBMIT TO
THE JURISDICTION OF ANY NEW YORK STATE COURT SITTING IN THE BOROUGH OF
MANHATTAN IN THE CITY OF NEW YORK OR ANY FEDERAL COURT SITTING IN THE BOROUGH
OF MANHATTAN IN THE CITY OF NEW YORK IN RESPECT OF ANY SUIT, ACTION OR
PROCEEDING ARISING OUT OF OR RELATING TO THIS INDENTURE, THE GUARANTEES, IF
ANY, AND THE NOTES, AND IRREVOCABLY ACCEPTS FOR ITSELF AND IN RESPECT OF ITS
PROPERTY, GENERALLY AND UNCONDITIONALLY, JURISDICTION OF THE AFORESAID COURTS
IN RESPECT OF SUCH SUIT OR ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO
THIS


 


75

















 


INDENTURE,
THE NOTES AND THE GUARANTEES. EACH OF THE TRUSTEE, THE COMPANY AND ANY
GUARANTOR IRREVOCABLY WAIVES, TO THE FULLEST EXTENT THAT IT MAY EFFECTIVELY DO
SO UNDER APPLICABLE LAW, TRIAL BY JURY AND ANY OBJECTION WHICH IT MAY NOW OR
HEREAFTER HAVE TO THE LAYING OF THE VENUE OF ANY SUCH SUIT, ACTION OR
PROCEEDING BROUGHT IN ANY SUCH COURT AND ANY CLAIM THAT ANY SUCH SUIT, ACTION
OR PROCEEDING BROUGHT IN ANY SUCH COURT HAS BEEN BROUGHT IN AN INCONVENIENT
FORUM. Nothing herein shall affect the right of the Trustee or any Holder of
the Notes to serve process in any other manner permitted by law or to commence
legal proceedings or otherwise proceed against the Company or any Guarantor in
any other jurisdiction.


 


Section 12.9.                             No Adverse Interpretation of Other Agreements.


 


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


 


Section 12.10.                       Successors.


 


All
agreements of the Company and any Guarantor in this Indenture and the Notes and
Guarantees shall bind their successors. All agreements of the Trustee in this
Indenture shall bind its successors.


 


Section 12.11.                       Severability.


 


In
case any provision in this Indenture or in the Notes or any Guarantees shall be
held to 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 12.12.                       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 shall represent the same agreement.


 


Section 12.13.                       Table of Contents, Headings, Etc.


 


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


 


Section 12.14.                       Qualification of Indenture.


 


The
Company shall qualify this Indenture under the TIA in accordance with the terms
and conditions of the Registration Rights Agreement and shall pay all
reasonable costs and expenses (including attorneys’ fees for the Company, the
Trustee and the Holders) incurred in connection therewith, including, but not
limited to, costs and expenses of qualification of this Indenture and the Notes
and printing this Indenture and the Notes. The Trustee shall be entitled to
receive from the Company any such Officers’ Certificates, Opinions of Counsel
or other documentation as it may reasonably request in connection with any such
qualification of this Indenture under the TIA.


 


[Signatures on following page]


 


76














 


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


 


	
   

  	
  MXENERGY
  HOLDINGS INC.

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Carole R. Artman-Hodge

  
	
   

  	
  Name:

  	
  Carole R. Artman-Hodge

  
	
   

  	
  Title:

  	
  Executive Vice President,
  Chief

  
	
   

  	
   

  	
  Operating Officer and
  Secretary

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  MXENERGY
  CAPITAL HOLDINGS CORP.

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Carole R. Artman-Hodge

  
	
   

  	
  Name:

  	
  Carole R. Artman-Hodge

  
	
   

  	
  Title:

  	
  Vice President, Secretary and Treasurer

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  MXENERGY
  CAPITAL CORP.

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Carole R. Artman-Hodge

  
	
   

  	
  Name:

  	
  Carole
  R. Artman-Hodge

  
	
   

  	
  Title:

  	
  Vice
  President, Secretary and Treasurer

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  ONLINE
  CHOICE INC.

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Carole R. Artman-Hodge

  
	
   

  	
  Name:

  	
  Carole R. Artman-Hodge

  
	
   

  	
  Title:

  	
  Vice President, Secretary and Treasurer

  
				



 


S-1

















 


	
   

  	
  MXENERGY
  GAS CAPITAL HOLDINGS

  CORP.

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Carole R. Artman-Hodge

  
	
   

  	
  Name:

  	
  Carole
  R. Artman-Hodge

  
	
   

  	
  Title:

  	
  Vice
  President, Secretary and Treasurer

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  MXENERGY
  ELECTRIC CAPITAL

  
	
   

  	
  HOLDINGS
  CORP.

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Carole R. Artman-Hodge

  
	
   

  	
  Name:

  	
  Carole
  R. Artman-Hodge

  
	
   

  	
  Title:

  	
  Vice
  President, Secretary and Treasurer

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  MXENERGY
  SERVICES INC.

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Carole R. Artman-Hodge

  
	
   

  	
  Name:

  	
  Carole
  R. Artman-Hodge

  
	
   

  	
  Title:

  	
  Chief
  Operating Officer

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  INFOMETER.COM
  INC.

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Carole R. Artman-Hodge

  
	
   

  	
  Name:

  	
  Carole
  R. Artman-Hodge

  
	
   

  	
  Title:

  	
  Vice
  President, Secretary and Treasurer

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  MXENERGY
  GAS CAPITAL CORP.

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Carole R. Artman-Hodge

  
	
   

  	
  Name:

  	
  Carole
  R. Artman-Hodge

  
	
   

  	
  Title:

  	
  Vice
  President, Secretary and Treasurer

  
				



 


S-2

















 


	
   

  	
  MXENERGY
  ELECTRIC CAPITAL CORP.

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Carole R. Artman-Hodge

  
	
   

  	
  Name:

  	
  Carole
  R. Artman-Hodge

  
	
   

  	
  Title:

  	
  Vice
  President, Secretary and Treasurer

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  MXENERGY
  INC.

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Carole R. Artman-Hodge

  
	
   

  	
  Name:

  	
  Carole
  R. Artman-Hodge

  
	
   

  	
  Title:

  	
  Vice
  President, Chief Operating Officer

  
	
   

  	
   

  	
  and Secretary

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  MXENERGY
  ELECTRIC INC.

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Carole R. Artman-Hodge

  
	
   

  	
  Name:

  	
  Carole
  R. Artman-Hodge

  
	
   

  	
  Title:

  	
  Chief
  Operating Officer

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  TOTAL
  GAS & ELECTRICITY INC.

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Carole R. Artman-Hodge

  
	
   

  	
  Name:

  	
  Carole
  R. Artman-Hodge

  
	
   

  	
  Title:

  	
  Chief
  Operating Officer

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  TOTAL
  GAS & ELECTRICITY (PA) INC.

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Carole R. Artman-Hodge

  
	
   

  	
  Name:

  	
  Carole
  R. Artman-Hodge

  
	
   

  	
  Title:

  	
  Chief
  Operating Officer

  
				



 


S-3

















 


	
   

  	
  LAW
  DEBENTURE TRUST COMPANY OF NEW

  YORK

  
	
   

  	
  as
  Trustee

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  Boris Treyger

  
	
   

  	
   

  	
  Name:

  	
  Boris
  Treyger

  
	
   

  	
   

  	
  Title:

  	
  Assistant
  Vice President

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  DEUTSCHE
  BANK TRUST COMPANY AMERICAS, as

  Paying Agent and Registrar

  
	
   

  	
   

  	
   

  
	
   

  	
  By
  Deutsche Bank National Trust Company

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Yana Kalachikova

  
	
   

  	
  Name:

  	
  Yana
  Kalachikova

  
	
   

  	
  Title:

  	
  Assistant
  Vice President

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Rodney Gaughan

  
	
   

  	
  Name:

  	
  Rodney
  Gaughan

  
	
   

  	
  Title:

  	
  Assistant
  Vice President

  
						



 


S-4

















 


EXHIBIT A


 


FORM OF SERIES A NOTE


 


(Face of Note)


 


MXENERGY HOLDINGS INC.


 


FLOATING RATE SENIOR NOTE DUE 2011


 


[THIS
NOTE IS A GLOBAL NOTE WITHIN THE MEANING OF THE INDENTURE HEREINAFTER REFERRED
TO AND IS REGISTERED IN THE NAME OF A DEPOSITARY OR A NOMINEE OF A DEPOSITARY
OR A SUCCESSOR DEPOSITARY. THIS NOTE IS NOT EXCHANGEABLE FOR NOTES REGISTERED
IN THE NAME OF A PERSON OTHER THAN THE DEPOSITARY OR ITS NOMINEE EXCEPT IN THE
LIMITED CIRCUMSTANCES DESCRIBED IN THE INDENTURE, AND NO TRANSFER OF THIS
SECURITY (OTHER THAN A TRANSFER OF THIS SECURITY AS A WHOLE BY THE DEPOSITARY
TO A NOMINEE OF THE DEPOSITARY OR BY A NOMINEE OF THE DEPOSITARY TO THE
DEPOSITARY OR ANOTHER NOMINEE OF THE DEPOSITARY) MAY BE REGISTERED EXCEPT IN
THE LIMITED CIRCUMSTANCES DESCRIBED IN THE INDENTURE.


 


UNLESS
THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY
TRUST COMPANY, A NEW YORK CORPORATION (“DTC”), TO THE COMPANY OR ITS AGENT FOR
REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY CERTIFICATE ISSUED IS
REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED
BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE &
CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF
DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO
ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO.,
HAS AN INTEREST HEREIN.](1)


 


THIS
NOTE HAS NOT BEEN REGISTERED UNDER THE U.S. SECURITIES ACT OF 1933, AS AMENDED
(THE “SECURITIES ACT”), AND, ACCORDINGLY, MAY NOT BE OFFERED OR SOLD WITHIN THE
UNITED STATES OR TO, OR FOR THE ACCOUNT OR BENEFIT OF, U.S. PERSONS EXCEPT AS
SET FORTH BELOW. BY ITS ACQUISITION HEREOF, THE HOLDER (1) REPRESENTS THAT (A)
IT IS A “QUALIFIED INSTITUTIONAL BUYER” (AS DEFINED IN RULE 144A UNDER THE
SECURITIES ACT), (B) IT IS NOT A U.S. PERSON AND IS ACQUIRING THIS NOTE IN AN
OFFSHORE TRANSACTION IN COMPLIANCE WITH REGULATION S UNDER THE SECURITIES ACT
OR (C) IT IS AN ACCREDITED INVESTOR (AS DEFINED IN RULE 501(a)(1), (2), (3), OR
(7) UNDER THE SECURITIES ACT) (AN “ACCREDITED INVESTOR”), (2) AGREES THAT IT
WILL NOT WITHIN TWO YEARS AFTER THE ORIGINAL ISSUANCE OF THIS NOTE RESELL OR
OTHERWISE TRANSFER THIS NOTE EXCEPT (A) TO MXENERGY HOLDINGS INC. OR ANY
SUBSIDIARY THEREOF, (B) INSIDE THE UNITED STATES TO A QUALIFIED INSTITUTIONAL
BUYER IN COMPLIANCE WITH RULE 144A UNDER THE SECURITIES ACT, (C) INSIDE THE
UNITED STATES TO AN ACCREDITED INVESTOR THAT, PRIOR TO SUCH TRANSFER, FURNISHES
(OR HAS FURNISHED ON ITS BEHALF BY A U.S. BROKER-DEALER) TO THE TRUSTEE A
SIGNED LETTER CONTAINING CERTAIN REPRESENTATIONS


 






(1)           To be included only if the Note is issued in global form.


 


A-1

















 


AND
AGREEMENTS RELATING TO THE RESTRICTIONS ON TRANSFER OF THIS NOTE (THE FORM OF
WHICH LETTER CAN BE OBTAINED FROM THE TRUSTEE FOR THIS NOTE), (D) OUTSIDE THE
UNITED STATES IN AN OFFSHORE TRANSACTION IN COMPLIANCE WITH RULE 904 UNDER THE
SECURITIES ACT (IF AVAILABLE), (E) PURSUANT TO THE EXEMPTION FROM REGISTRATION
PROVIDED BY RULE 144 UNDER THE SECURITIES ACT (IF AVAILABLE), (F) IN ACCORDANCE
WITH ANOTHER EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT
(AND BASED UPON AN OPINION OF COUNSEL REASONABLY SATISFACTORY TO MXENERGY
HOLDINGS INC. IF MXENERGY HOLDINGS INC. SO REQUESTS), OR (G) PURSUANT TO
AN EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT AND (3) AGREES
THAT IT WILL GIVE TO EACH PERSON TO WHOM THIS NOTE IS TRANSFERRED A NOTICE
SUBSTANTIALLY TO THE EFFECT OF THIS LEGEND. IN CONNECTION WITH ANY TRANSFER OF
THIS NOTE WITHIN TWO YEARS AFTER THE ORIGINAL ISSUANCE OF THIS NOTE, IF THE
PROPOSED TRANSFEREE IS AN ACCREDITED INVESTOR, THE HOLDER MUST, PRIOR TO SUCH
TRANSFER, FURNISH TO THE TRUSTEE AND MXENERGY HOLDINGS INC. SUCH
CERTIFICATIONS, LEGAL OPINIONS OR OTHER INFORMATION AS EITHER OF THEM MAY
REASONABLY REQUIRE TO CONFIRM THAT SUCH TRANSFER IS BEING MADE PURSUANT TO AN
EXEMPTION FROM, OR IN A TRANSACTION NOT SUBJECT TO, THE REGISTRATION
REQUIREMENTS OF THE SECURITIES ACT. AS USED HEREIN, THE TERMS “OFFSHORE
TRANSACTION,” “UNITED STATES” AND “U.S. PERSON” HAVE THE MEANINGS GIVEN TO THEM
BY REGULATION S UNDER THE SECURITIES ACT.


 


THIS
NOTE WAS ISSUED WITH ORIGINAL ISSUE DISCOUNT FOR PURPOSES OF SECTIONS 1272,
1273 AND 1275 OF THE U.S. INTERNAL REVENUE CODE OF 1986, AS AMENDED. 
BEGINNING NO LATER THAN 10 (TEN) DAYS AFTER THE ISSUE DATE, YOU MAY CONTACT THE
GENERAL COUNSEL OF MXENERGY HOLDINGS INC. AT 595 SUMMER STREET, STAMFORD, CT
06901, TELEPHONE (203) 356-1318, WHO WILL PROMPTLY PROVIDE YOU WITH ANY
REQUIRED INFORMATION REGARDING THE ISSUE DATE, THE ISSUE PRICE, THE AMOUNT OF
ORIGINAL ISSUE DISCOUNT AND THE YIELD TO MATURITY.


 


A-2

















 


MXENERGY HOLDINGS INC.


 


FLOATING RATE SENIOR NOTE DUE 2011


 


	
   

  	
  CUSIP
  No.
  [               ]

  
	
  No.

  	
  $

  



 


Interest
Payment Dates:


Record
Dates:


 


MXENERGY
HOLDINGS INC., a Delaware corporation (the “Company,” which term
includes any successor corporation under the indenture hereinafter referred to
), for value received, promises to pay to
[                  ],
or registered assigns the principal sum of $190,000,000 on August 1, 2011.


 


Reference
is hereby made to the further provisions of this Note set forth on the reverse
hereof, which further provisions shall for all purposes have the same effect as
set forth at this place.


 


Unless
the certificate of authentication hereon has been executed by the Trustee
referred to on the reverse hereof by manual signature, this Note shall not be
entitled to any benefits under the Indenture referred to on the reverse hereof
or be valid or obligatory for any purpose.


 


A-3

















 


IN
WITNESS WHEREOF, the Company has caused this Note to be duly executed.


 


	
   

  	
  Dated:

  
	
   

  	
   

  
	
   

  	
  MXENERGY
  HOLDINGS INC.

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  This
  is one of the Notes referred to

  in the within-mentioned Indenture:

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  LAW
  DEBENTURE TRUST COMPANY OF NEW YORK,

  as Trustee

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  By:

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Authorized
  Signatory

  	
   

  	
   

  	
   

  



 


A-4

















 


(Back of Note)


 


Floating Rate Senior Note due 2011


 


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


 


1.                                       Interest. The Company promises to pay accrued interest on the principal amount
of this Note at a rate per annum,
reset semi-annually, equal to LIBOR plus 7.5%, as determined by the calculation
agent (the “Calculation Agent”), which shall initially be Deutsche Bank
Trust Company Americas. The Company shall pay interest and Additional Interest
semi-annually on February 1 and August 1 of each year, commencing February 1,
2007, or if any such day is not a Business Day, on the next succeeding Business
Day (each an “Interest Payment Date”). Interest on this Note will accrue
from the most recent date to which interest has been paid or, if no interest
has been paid, from the date of issuance; provided
that if there is no existing Default in the payment of interest, and if this
Note is authenticated between a record date referred to on the face hereof and
the next succeeding Interest Payment Date, interest shall accrue from such next
succeeding Interest Payment Date; provided,
further, that the first Interest
Payment Date shall be February 1, 2007. The Company shall pay interest
(including post-petition interest in any proceeding under any Bankruptcy Law)
on overdue payments of the principal, Purchase Price and Redemption Price of
this Note from time to time on demand at a rate that is 2% per annum in excess
of the rate then in effect; it shall pay interest (including post-petition
interest in any proceeding under any Bankruptcy Law) on overdue installments of
interest and Additional Interest, if any (without regard to any applicable
grace periods), hereon from time to time on demand at the same rate to the
extent lawful.


 


The
amount of interest for each day that the Notes are outstanding (the “Daily
Interest Amount”) will be calculated by dividing the interest rate in
effect for such day by 360 and multiplying the result by the principal amount
of the Notes. The amount of interest to be paid on the Notes for each Interest
Period will be calculated by adding the Daily Interest Amounts for each day in
the Interest Period. All percentage resulting from any of the above
calculations will be rounded, if necessary, to the nearest one
hundred-thousandth of a percentage point, with five one-millionths of a
percentage point being rounded upwards (e.g., 9.876545% (or .09876545) being
rounded to 9.87655% (or .0987655)) and all dollar amounts used in resulting
from such calculations will be rounded to the nearest cent (with one-half cent
being rounded upwards). The interest rate on the Notes will in no event be
higher than the maximum rate permitted by New York law as the same may be
modified by United States law of general application. The Calculation Agent
will, upon the request of the Holder of any Note, provide the interest rate
then in effect with respect to the Notes. All calculations made by the
Calculation Agent in the absence of manifest error will be conclusive for all
purposes and binding on the Authority, the Guarantors and the holders of the
Notes.


 


2.                                       Method of Payment. The Company shall 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 January 15 and July
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. Any such installment of interest or Additional Interest, if any, not
punctually paid or duly provided for shall forthwith cease to be payable to the
registered Holders on such Interest Payment Date, and may be paid to the
registered Holders at the close of business on a special interest payment date
to be fixed by the Trustee for the payment of such defaulted interest, notice
whereof shall be given to the registered Holders not less than 10 days prior to
such special interest payment date, or may be paid at any time in any other
lawful manner not inconsistent with the requirements of any securities exchange
on which the Notes may be listed, and upon such notice as may be required by
such exchange, all as more fully provided in the Indenture. The Notes will be
payable as to principal, Redemption Price, Purchase Price, interest and
Additional Interest, if any, at the office or agency of the Company maintained
for such purpose within or without the City and State of New York, or, at the
option of the Company, payment of interest and Additional Interest may be made
by check


 


A-5

















 


mailed to the Holders at their
addresses set forth in the register of Holders, provided that payment by wire transfer of immediately
available funds will be required with respect to principal, Redemption Price
and Purchase Price of, and interest and Additional Interest (if any) on, all
Global Notes and all other Notes the Holders of which shall have provided wire
transfer instructions to the Trustee or the Paying Agent. Such payment shall be
in such coin or currency of the United States of America as at the time of
payment is legal tender for payment of public and private debts.


 


3.                                       Paying Agent and Registrar. Initially, Deutsche Bank Trust Company
Americas will act as Paying Agent and Registrar. The Company may change any
Paying Agent or Registrar without notice to any Holder. The Company may act in
any such capacity.


 


4.                                       Indenture. The Company issued $190.0 million in aggregate principal amount of
the Notes under an Indenture dated as of August 4, 2006 (the “Indenture”)
between the Company, the Guarantors party thereto from time to time, the
Trustee and DBTCA. Additional Notes may be issued from time to time, subject to
limitations set forth in the Indenture. The terms of the Notes include those
stated in the Indenture and those made part of the Indenture by reference to
the Trust Indenture Act of 1939, as amended (15 U.S.C. Code
§§ 77aaa-77bbbb). The Notes are subject to all such terms, and Holders are
referred to the Indenture and such Act for a statement of such terms. The Notes
are general obligations of the Company. The Company may issue Additional Notes
under the Indenture.


 


5.                                       Optional Redemption.


 


Except
as described in Paragraph 6 below, the Notes are not redeemable prior to their
Stated Maturity.


 


6.                                       Special Redemption. At any time, or from time to time, on or
prior to August 1, 2009, the Company may, at its option, use the net cash
proceeds of one or more public or private offering of Qualified Capital Stock
(as defined in the Indenture) of the Company to redeem up to 35% of the
principal amount of the Notes issued under the Indenture at a redemption price
of 100% of the principal amount thereof plus
a premium equal to the rate per annum on the Notes applicable on the Redemption
Date plus accrued and unpaid
interest thereon, if any, to the Redemption Date; provided that at least 65% of the principal amount of Notes
issued under the Indenture remains outstanding immediately after any such
redemption and the Company makes such redemption not more than 90 days after
the consummation of any such Equity Offering.


 


7.                                       Mandatory Redemption. Except as set forth in Paragraph 9 below
with respect to repurchases of Notes in certain events, the Company shall not
be required to make mandatory redemption or repurchase payments with respect to
the Notes.


 


8.                                       Selection and Notice of Redemption. Subject to the provisions of the Indenture,
a 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
at its registered address. Notes in denominations larger than $1,000 may be
redeemed in part but only in whole multiples of $1,000, unless all of the Notes
held by a Holder are to be redeemed. On and after the Redemption Date interest
ceases to accrue on Notes or portions thereof called for redemption.


 


If
less than all of the Notes are to be redeemed, DBTCA shall select the Notes or
portions thereof to be redeemed (a) in compliance with the requirements of the
national securities exchange, if any, on which the Notes are listed; or (b) if
the Notes are not listed on any national securities exchange, on a pro rata basis, by lot or by such method
as the Trustee shall deem fair and appropriate.


 


A-6

















 


9.                                       Repurchase at Option of Holder.


 


(a)                                  Change of Control Offer. Upon the occurrence of a Change of Control
(unless the Company has exercised its right to redeem the Notes as described in
paragraph 5 above and in the Indenture), the Company shall be required to make
an offer (a “Change of Control Offer”) to repurchase all or any part
(equal to $1,000 or an integral multiple thereof) of each Holder’s Notes at a
Purchase Price in cash equal to 101% of the aggregate principal amount thereof plus
accrued and unpaid interest and Additional Interest, if any, to the date of
repurchase, in accordance with the procedures set forth in the Indenture. Within
45 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)                                 Net Proceeds Offer. If on the 366th day after an Asset Sale the
Company has not applied or invested the Net Cash Proceeds or non-cash
consideration received by the Company or any Restricted Subsidiary, as the case
may be, in connection with any Asset Sale that is converted into or sold or
otherwise disposed of for cash (as described in Section 4.10 of the Indenture)
relating to such Asset Sale as set forth in clauses (3)(a) and (3)(b) of
paragraph (a) of Section 4.10 of the Indenture (each, a “Net Proceeds
Offer Trigger Date”), such aggregate amount of Net Cash Proceeds which has
not been applied or invested on or before such Net Proceeds Offer Trigger Date
as permitted in clauses (3)(a) and (3)(b) of paragraph (a) of Section 4.10
of the Indenture (each, a “Net Proceeds Offer Amount”) shall be applied
by the Company to make an offer to purchase (the “Net Proceeds Offer”)
pursuant to Sections 3.10 and 4.10 of the Indenture to all Holders and, to the
extent required by the terms of any other debt that is pari passu with the Notes (“Pari Passu
Debt”), to all holders of such Pari Passu Debt on a date (the “Net
Proceeds Offer Payment Date”) not less than 30 nor more than 60 days
following the applicable Net Proceeds Offer Trigger Date, from all Holders (and
holders of any Pari Passu Debt) pro rata,
the maximum amount of Notes and such other Pari Passu Debt equal to the Net
Proceeds Offer Amount with respect to the Notes at a price equal to 100% of the
principal amount of the Notes (and Pari Passu Debt) to be purchased, plus
accrued and unpaid interest thereon, if any, to the Purchase Date.


 


Each
Net Proceeds Offer will be mailed to the record Holders as shown on the
register of Holders within 30 days following the Net Proceeds Offer Trigger
Date, with a copy to the Trustee, and shall comply with the procedures set
forth in the Indenture. Upon receiving notice of the Net Proceeds Offer, Holders
may elect to tender their Notes in whole or in part in integral multiples of
$1,000 in exchange for cash. To the extent Holders properly tender Notes in an
amount exceeding the Net Proceeds Offer Amount, the tendered Notes will be
purchased pro rata based on the
aggregate amounts of Notes and Pari Passu Debt of the Company properly tendered
(and the Trustee shall select the tendered Notes of tendering Holders pro rata based on the amount of Notes and
other pari passu Indebtedness of the Company properly tendered). A Net Proceeds
Offer shall remain open for a period of 20 Business Days or such longer period
as may be required by law.


 


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


 


11.                                 Persons Deemed Owners. The registered Holder of a Note may be
treated as its owner for all purposes.


 


12.                                 Amendment, Supplement and Waiver. Subject to certain exceptions, the
Indenture and the Notes may be amended or supplemented with the consent of the
Holders of at least a majority in principal


 


A-7

















 


amount of the then outstanding
Notes, and any existing default or compliance with any provision of the
Indenture or the Notes may be waived with the consent of the Holders of a
majority in principal amount of the then outstanding Notes. Without the consent
of any Holder of a Note, the Indenture and the Notes may be amended or
supplemented to cure any ambiguity, defect or inconsistency, to provide for the
assumption of the Company’s obligations to Holders of the Notes in case of a
merger or consolidation or sale of all or substantially all of the Company’s
assets pursuant to Article V of the Indenture, 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 Trust Indenture Act.


 


13.                                 Defaults and Remedies. (i) the failure to pay interest on any
Notes when the same becomes due and payable and the default continues for a
period of 30 days; (ii) the failure to pay the principal on any Notes,
when such principal becomes due and payable, at maturity, upon redemption or
otherwise (including the failure to make a payment to purchase Notes tendered
pursuant to a Change of Control Offer or a Net Proceeds Offer); (iii) a
default in the observance or performance of any other covenant or agreement
contained in the Indenture which default continues for a period of 45 days
after the Company receives written notice specifying the default (and demanding
that such default be remedied) from the Trustee or the Holders of at least 25%
of the outstanding principal amount of the Notes (except in the case of a
default under Section 5.1 of the Indenture, which will constitute an Event of
Default with such notice requirement but without such passage of time
requirement); (iv) the failure to pay at final maturity (giving effect to
any applicable grace periods and any extensions thereof) the stated principal
amount of any Indebtedness of the Company or any Restricted Subsidiary of the
Company, or the acceleration of the final stated maturity of any such
Indebtedness (which acceleration is not rescinded, annulled or otherwise cured
within 30 days of receipt by the Company or such Restricted Subsidiary of
notice of any such acceleration) if the aggregate principal amount of such
Indebtedness, together with the principal amount of any other such Indebtedness
in default for failure to pay principal at final stated maturity or which has
been accelerated (in each case with respect to which the 30-day period
described above has elapsed), aggregates $5 million or more at any time; provided that if such failure to pay shall
be remedied, waived or extended within 30 days of receipt by the Company or
such Restricted Subsidiary of notice of such acceleration, then any Default or
Event of Default hereunder shall be deemed likewise to be remedied, waived or
extended without further action by the Company; (v) one or more judgments
in an aggregate amount in excess of $5 million shall have been rendered
against the Company or any of its Restricted Subsidiaries and such judgments
remain undischarged, unpaid or unstayed for a period of 60 days after such judgment
or judgments become final and non-appealable; (vi) certain events of
bankruptcy affecting the Company or any of its Significant Subsidiaries; or
(vii) any Guarantee of a Significant Subsidiary ceases to be in full force
and effect or is declared to be null and void and unenforceable or is found to
be invalid or any Guarantor that is a Significant Subsidiary denies its
liability under its Guarantee (other than by reason of release of a Guarantor
in accordance with the terms of the Indenture).


 


14.                                 Trustee Dealings with Company. Subject to certain limitations, the Trustee
under the Indenture, in its individual or any other capacity, may become owner
or pledgee of Notes and may otherwise deal with the Company or its Affiliates
as if it were not Trustee.


 


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


 


16.                                 Authentication. This Note shall not be valid until
authenticated by the signature of the Trustee or an authenticating agent.


 


17.                                 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


 


A-8

















 


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


 


18.                                 Discharge Prior to Maturity. If the Company deposits with the Trustee or
Paying Agent cash or U.S. Government Securities sufficient to pay the principal
or Redemption Price of, and interest and Additional Interest, if any, on, the
Notes to maturity or a specified Redemption Date and satisfies certain
conditions specified in the Indenture, the Company will be discharged from the
Indenture, except for certain Sections thereof.


 


19.                                 Governing Law. The validity and interpretation of the
Indenture, the Guarantees, if any, and this Note shall be governed by and
construed in accordance with the laws of the state of New York, but without
giving effect to applicable principles of conflicts of law to the extent that
the application of the law of another jurisdiction would be required thereby. Each
party hereto agrees to submit to the jurisdiction of any New York state court
sitting in the Borough of Manhattan in the City of New York or any federal
court sitting in the Borough of Manhattan in the City of New York in respect of
any suit, action or proceeding arising out of or relating to the Indenture, the
Guarantees, if any, and the Notes, and irrevocably accepts for itself and in
respect of its property, generally and unconditionally, jurisdiction of the
aforesaid courts in respect of such suit or action or proceeding arising out of
or relating to the Indenture, the Notes and the Guarantees. Each of the
Trustee, the Company and any Guarantor irrevocably waives, to the fullest
extent that it may effectively do so under applicable law, trial by jury and
any objection which it may now or hereafter have to the laying of the venue of
any such suit, action or proceeding brought in any such court and any claim
that any such suit, action or proceeding brought in any such court has been
brought in an inconvenient forum.


 


20.                                 CUSIP Numbers. Pursuant to a recommendation promulgated by
the Committee on Uniform Security Identification Procedures, the Company has
caused CUSIP numbers to be printed on the Notes and the Trustee may use CUSIP
numbers in notices of redemption as a convenience to Holders. No representation
is made as to the correctness or accuracy of such numbers either as printed on
the Notes or as contained in any notice of redemption or repurchase and
reliance may be placed only on the other identification numbers placed thereon.


 


21.                                 Registration Rights. Pursuant to a registration rights
agreement, the Company will be obligated upon the occurrence of certain events
to consummate an exchange offer pursuant to which the Holder of this Note shall
have the right to exchange this Series A Note for the Company’s Floating
Rate Senior Notes due 2011, Series B, which have been registered under the
Securities Act, in like principal amount and having terms identical in all
material respects as the Series A Notes. The Holders shall be entitled to
receive certain additional interest payments in the event such exchange offer
is not consummated and upon certain other conditions, all pursuant to and in
accordance with the terms of such registration rights agreement.


 


The
Company will furnish to any Holder upon written request and without charge a
copy of the Indenture. Request may be made to:


 


MxEnergy
Holdings Inc.

595 Summer Street

Stamford, CT  06901

Attention:  Tom Hartmann


 


A-9

















 


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

  	
   

  
	
  agent
  to transfer this Note on the books of the Company. The agent may substitute
  another to act for him.

  



 


	
   

  	
  Date:

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Your
  Signature:

  	
   

  
	
   

  	
   

  	
   

  	
  (Sign exactly as your name
  appears on the

  face of this Note)

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Signature
  Guarantee:

  	
   

  
	
   

  	
   

  	
   

  	
  (Participant in recognized signature guarantee
  medallion program)

  
								



 


A-10

















 


OPTION OF HOLDER TO ELECT PURCHASE


 


If
you wish to elect to have all or any portion of this Note purchased by the
Company pursuant to Section 4.10 (“Net Proceeds Offer”) or
Section 4.15 (“Change of Control Offer”) of the Indenture, check
the applicable boxes


 


	
  o Net Proceeds Offer:

  	
   

  	
  o Change of Control Offer:

  
	
   

  	
   

  	
   

  
	
  in whole

  	
  o

  	
   

  	
  in whole

  	
  o

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  in part

  	
  o

  	
   

  	
  in part

  	
  o

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Amount to be

  purchased: $              

  	
   

  	
  Amount to be

  purchased: $              

  



 


 


	
  Dated:

  	
   

  	
   

  	
  Signature:

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
  (Sign
  exactly as your name appears on the

  other side of this Note)

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Signature
  Guarantee:

  	
   

  	
   

  
	
   

  	
  (Participant in recognized signature guarantee
  medallion program)

  
	
   

  	
   

  
	
  Social
  Security Number or

  Taxpayer Identification Number:

  	
   

  
								



 


A-11

















 


SCHEDULE OF EXCHANGES OF NOTES


 


The
following exchanges of a part of this Global Note for Certificated Notes or a
part of another Global Note have been made:


 


	
  Date of Exchange

  	
   

  	
  Amount of decrease

  in principal amount

  of this Global Note

  	
   

  	
  Amount of increase

  in principal amount

  of this Global Note

  	
   

  	
  Principal amount of

  this Global Note

  following such

  decrease (or

  increase)

  	
   

  	
  Signature of

  authorized officer of

  Trustee

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  



 


A-12

















 


EXHIBIT B


 


FORM OF SERIES B NOTE


 


(Face of Note)


 


MXENERGY HOLDINGS INC.


 


FLOATING RATE SENIOR NOTE DUE 2011


 


[THIS
NOTE IS A GLOBAL NOTE WITHIN THE MEANING OF THE INDENTURE HEREINAFTER REFERRED
TO AND IS REGISTERED IN THE NAME OF A DEPOSITARY OR A NOMINEE OF A DEPOSITARY
OR A SUCCESSOR DEPOSITARY. THIS NOTE IS NOT EXCHANGEABLE FOR NOTES REGISTERED
IN THE NAME OF A PERSON OTHER THAN THE DEPOSITARY OR ITS NOMINEE EXCEPT IN THE
LIMITED CIRCUMSTANCES DESCRIBED IN THE INDENTURE, AND NO TRANSFER OF THIS
SECURITY (OTHER THAN A TRANSFER OF THIS SECURITY AS A WHOLE BY THE DEPOSITARY
TO A NOMINEE OF THE DEPOSITARY OR BY A NOMINEE OF THE DEPOSITARY TO THE
DEPOSITARY OR ANOTHER NOMINEE OF THE DEPOSITARY) MAY BE REGISTERED EXCEPT IN
THE LIMITED CIRCUMSTANCES DESCRIBED IN THE INDENTURE.


 


UNLESS
THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY
TRUST COMPANY, A NEW YORK CORPORATION (“DTC”), TO THE COMPANY OR ITS AGENT FOR
REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY CERTIFICATE ISSUED IS
REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED
BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE &
CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF
DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO
ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO.,
HAS AN INTEREST HEREIN.](2)


 


THIS
NOTE WAS ISSUED WITH ORIGINAL ISSUE DISCOUNT FOR PURPOSES OF SECTIONS 1272,
1273 AND 1275 OF THE U.S. INTERNAL REVENUE CODE OF 1986, AS AMENDED. 
BEGINNING NO LATER THAN 10 (TEN) DAYS AFTER THE ISSUE DATE, YOU MAY CONTACT THE
GENERAL COUNSEL OF MXENERGY HOLDINGS INC. AT 595 SUMMER STREET, STAMFORD, CT
06901, TELEPHONE (203) 356-1318, WHO WILL PROMPTLY PROVIDE YOU WITH ANY
REQUIRED INFORMATION REGARDING THE ISSUE DATE, THE ISSUE PRICE, THE AMOUNT OF
ORIGINAL ISSUE DISCOUNT AND THE YIELD TO MATURITY.


 






(2)           To be included only
if the Note is issued in global form.


 


B-1

















 


MXENERGY HOLDINGS INC.


 


FLOATING RATE SENIOR NOTE DUE 2011


 


	
   

  	
  CUSIP
  No.
  [               ]

  
	
  No.

  	
  $

  



 


Interest
Payment Dates:

Record Dates:


 


MXENERGY
HOLDINGS INC., a Delaware corporation (the “Company,” which term
includes any successor corporation under the indenture hereinafter referred to
), for value received, promises to pay to
[               ],
or registered assigns, the principal sum of $190,000,000 on August 1, 2011.


 


Reference
is hereby made to the further provisions of this Note set forth on the reverse
hereof, which further provisions shall for all purposes have the same effect as
set forth at this place.


 


Unless
the certificate of authentication hereon has been executed by the Trustee
referred to on the reverse hereof by manual signature, this Note shall not be
entitled to any benefits under the Indenture referred to on the reverse hereof
or be valid or obligatory for any purpose.


 


B-2

















 


IN
WITNESS WHEREOF, the Company has caused this Note to be duly executed.


 


	
   

  	
  Dated:

  
	
   

  	
   

  
	
   

  	
  MXENERGY
  HOLDINGS INC.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  Attested
  to as of the date hereof:

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  
	
   

  	
   

  	
   

  
	
  This
  is one of the Notes referred to

  in the within-mentioned Indenture:

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  LAW
  DEBENTURE TRUST COMPANY OF NEW YORK,

  as Trustee

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  By:

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Authorized
  Signatory

  	
   

  	
   

  	
   

  



 


B-1

















 


(Back of Note)


 


Floating Rate Senior Note due 2011


 


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


 


1.                                       Interest. The Company promises to pay accrued interest on the principal amount
of this Note at a rate per annum,
reset semi-annually, equal to LIBOR plus 7.5% as determined by the calculation
agent (the “Calculation Agent”), which shall initially be Deutsche Bank
Trust Company Americas. The Company shall pay interest and Additional Interest
semi-annually on February 1 and August 1 of each year, commencing February 1,
2007, or if any such day is not a Business Day, on the next succeeding Business
Day (each an “Interest Payment Date”). Interest on this Note will accrue
from the most recent date to which interest has been paid or, if no interest
has been paid, from the date of issuance; provided
that if there is no existing Default in the payment of interest, and if this
Note is authenticated between a record date referred to on the face hereof and
the next succeeding Interest Payment Date, interest shall accrue from such next
succeeding Interest Payment Date; provided,
further, that the first Interest
Payment Date shall be February 1, 2007. The Company shall pay interest
(including post-petition interest in any proceeding under any Bankruptcy Law)
on overdue payments of the principal, Purchase Price and Redemption Price of
this Note from time to time on demand at a rate that is 2% per annum in excess
of the rate then in effect; it shall pay interest (including post-petition
interest in any proceeding under any Bankruptcy Law) on overdue installments of
interest and Additional Interest, if any (without regard to any applicable
grace periods), hereon from time to time on demand at the same rate to the
extent lawful.


 


The
amount of interest for each day that the Notes are outstanding (the “Daily
Interest Amount”) will be calculated by dividing the interest rate in
effect for such day by 360 and multiplying the result by the principal amount
of the Notes. The amount of interest to be paid on the Notes for each Interest
Period will be calculated by adding the Daily Interest Amounts for each day in
the Interest Period. All percentage resulting from any of the above
calculations will be rounded, if necessary, to the nearest one
hundred-thousandth of a percentage point, with five one-millionths of a
percentage point being rounded upwards (e.g., 9.876545% (or .09876545) being rounded
to 9.87655% (or .0987655)) and all dollar amounts used in resulting from such
calculations will be rounded to the nearest cent (with one-half cent being
rounded upwards). The interest rate on the Notes will in no event be higher
than the maximum rate permitted by New York law as the same may be modified by
United States law of general application. The Calculation Agent will, upon the
request of the Holder of any Note, provide the interest rate then in effect
with respect to the Notes. All calculations made by the Calculation Agent in
the absence of manifest error will be conclusive for all purposes and binding
on the Authority, the Guarantors and the holders of the Notes.


 


2.                                       Method of Payment. The Company shall 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 January 15 and July
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. Any such installment of interest or Additional Interest, if any, not
punctually paid or duly provided for shall forthwith cease to be payable to the
registered Holders on such Interest Payment Date, and may be paid to the
registered Holders at the close of business on a special interest payment date
to be fixed by the Trustee for the payment of such defaulted interest, notice
whereof shall be given to the registered Holders not less than 10 days prior to
such special interest payment date, or may be paid at any time in any other
lawful manner not inconsistent with the requirements of any securities exchange
on which the Notes may be listed, and upon such notice as may be required by
such exchange, all as more fully provided in the Indenture. The Notes will be
payable as to principal, Redemption Price, Purchase Price, interest and
Additional Interest, if any, at the office or agency of the Company maintained
for such purpose within or without the City and State of New York, or, at the
option of the Company, payment of interest and Additional Interest may be made
by check


 


B-2

















 


mailed to the Holders at their
addresses set forth in the register of Holders, provided that payment by wire transfer of immediately
available funds will be required with respect to principal, Redemption Price
and Purchase Price of, and interest and Additional Interest (if any) on, all
Global Notes and all other Notes the Holders of which shall have provided wire
transfer instructions to the Trustee or the Paying Agent. Such payment shall be
in such coin or currency of the United States of America as at the time of
payment is legal tender for payment of public and private debts.


 


3.                                       Paying Agent and Registrar. Initially, Deutsche Bank Trust Company
Americas will act as Paying Agent and Registrar. The Company may change any
Paying Agent or Registrar without notice to any Holder. The Company may act in
any such capacity.


 


4.                                       Indenture. The Company issued $190.0 million in aggregate principal amount of
the Notes under an Indenture dated as of August 4, 2006 (the “Indenture”)
between the Company, the Guarantors party thereto from time to time, the Trustee
and DBTCA. Additional Notes may be issued from time to time, subject to
limitations set forth in the Indenture. The terms of the Notes include those
stated in the Indenture and those made part of the Indenture by reference to
the Trust Indenture Act of 1939, as amended (15 U.S.C. Code
§§ 77aaa-77bbbb). The Notes are subject to all such terms, and Holders are
referred to the Indenture and such Act for a statement of such terms. The Notes
are general obligations of the Company. The Company may issue Additional Notes
under the Indenture.


 


5.                                       Optional Redemption.


 


Except
as described in Paragraph 6 below, the Notes are not redeemable prior to their
Stated Maturity.


 


6.                                       Special Redemption. At any time, or from time to time, on or
prior to August 1, 2009, the Company may, at its option, use the net cash
proceeds of one or more public or private offering of Qualified Capital Stock
(as defined in the Indenture) of the Company to redeem up to 35% of the
principal amount of the Notes issued under the Indenture at a redemption price
of 100% of the principal amount thereof plus
a premium equal to the rate per annum on the Notes applicable on the Redemption
Date plus accrued and unpaid
interest thereon, if any, to the Redemption Date; provided that at least 65% of the principal amount of Notes
issued under the Indenture remains outstanding immediately after any such
redemption and the Company makes such redemption not more than 90 days after
the consummation of any such Equity Offering.


 


7.                                       Mandatory Redemption. Except as set forth in Paragraph 9 below
with respect to repurchases of Notes in certain events, the Company shall not
be required to make mandatory redemption or repurchase payments with respect to
the Notes.


 


8.                                       Selection and Notice of Redemption. Subject to the provisions of the Indenture,
a 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
at its registered address. Notes in denominations larger than $1,000 may be
redeemed in part but only in whole multiples of $1,000, unless all of the Notes
held by a Holder are to be redeemed. On and after the Redemption Date interest
ceases to accrue on Notes or portions thereof called for redemption.


 


If
less than all of the Notes are to be redeemed, the Trustee shall select the
Notes or portions thereof to be redeemed (a) in compliance with the
requirements of the national securities exchange, if any, on which the Notes
are listed; or (b) if the Notes are not listed on any national securities
exchange, on a pro rata basis, by
lot or by such method as the Trustee shall deem fair and appropriate.


 


B-3

















 


9.                                       Repurchase at Option of Holder.


 


(a)                                  Change of Control Offer. Upon the occurrence of a Change of Control
(unless the Company has exercised its right to redeem the Notes as described in
paragraph 5 above and in the Indenture), the Company shall be required to make
an offer (a “Change of Control Offer”) to repurchase all or any part (equal
to $1,000 or an integral multiple thereof) of each Holder’s Notes at a Purchase
Price in cash equal to 101% of the aggregate principal amount thereof plus
accrued and unpaid interest and Additional Interest, if any, to the date of
repurchase, in accordance with the procedures set forth in the Indenture. Within
45 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)                                 Net Proceeds Offer. If on the 366th day after an Asset Sale the
Company has not applied or invested the Net Cash Proceeds or non-cash
consideration received by the Company or any Restricted Subsidiary, as the case
may be, in connection with any Asset Sale that is converted into or sold or
otherwise disposed of for cash (as described in Section 4.10 of the Indenture)
relating to such Asset Sale as set forth in clauses (3)(a) and (3)(b) of
paragraph (a) of Section 4.10 of the Indenture (each, a “Net Proceeds
Offer Trigger Date”), such aggregate amount of Net Cash Proceeds which has
not been applied or invested on or before such Net Proceeds Offer Trigger Date
as permitted in clauses (3)(a) and (3)(b) of paragraph (a) of Section 4.10
of the Indenture (each, a “Net Proceeds Offer Amount”) shall be applied
by the Company to make an offer to purchase (the “Net Proceeds Offer”)
pursuant to Sections 3.10 and 4.10 of the Indenture to all Holders and, to the
extent required by the terms of any other debt that is pari passu with the Notes (“Pari Passu
Debt”), to all holders of such Pari Passu Debt on a date (the “Net
Proceeds Offer Payment Date”) not less than 30 nor more than 60 days
following the applicable Net Proceeds Offer Trigger Date, from all Holders (and
holders of any Pari Passu Debt) pro rata,
the maximum amount of Notes and such other Pari Passu Debt equal to the Net
Proceeds Offer Amount with respect to the Notes at a price equal to 100% of the
principal amount of the Notes (and Pari Passu Debt) to be purchased, plus
accrued and unpaid interest thereon, if any, to the Purchase Date.


 


Each
Net Proceeds Offer will be mailed to the record Holders as shown on the
register of Holders within 30 days following the Net Proceeds Offer Trigger
Date, with a copy to the Trustee, and shall comply with the procedures set
forth in the Indenture. Upon receiving notice of the Net Proceeds Offer,
Holders may elect to tender their Notes in whole or in part in integral
multiples of $1,000 in exchange for cash. To the extent Holders properly tender
Notes in an amount exceeding the Net Proceeds Offer Amount, the tendered Notes
will be purchased pro rata based
on the aggregate amounts of Notes and Pari Passu Debt of the Company properly
tendered (and the Trustee shall select the tendered Notes of tendering Holders pro rata based on the amount of Notes and
other pari passu Indebtedness of the Company properly tendered). A Net Proceeds
Offer shall remain open for a period of 20 Business Days or such longer period
as may be required by law.


 


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


 


11.                                 Persons Deemed Owners. The registered Holder of a Note may be
treated as its owner for all purposes.


 


12.                                 Amendment, Supplement and Waiver. Subject to certain exceptions, the
Indenture and the Notes may be amended or supplemented with the consent of the
Holders of at least a majority in principal


 


B-4

















 


amount of the then outstanding
Notes, and any existing default or compliance with any provision of the
Indenture or the Notes may be waived with the consent of the Holders of a
majority in principal amount of the then outstanding Notes. Without the consent
of any Holder of a Note, the Indenture and the Notes may be amended or
supplemented to cure any ambiguity, defect or inconsistency, to provide for the
assumption of the Company’s obligations to Holders of the Notes in case of a
merger or consolidation or sale of all or substantially all of the Company’s
assets pursuant to Article V of the Indenture, 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 Trust Indenture Act.


 


13.                                 Defaults and Remedies. (i) the failure to pay interest on any
Notes when the same becomes due and payable and the default continues for a
period of 30 days; (ii) the failure to pay the principal on any Notes,
when such principal becomes due and payable, at maturity, upon redemption or
otherwise (including the failure to make a payment to purchase Notes tendered
pursuant to a Change of Control Offer or a Net Proceeds Offer); (iii) a
default in the observance or performance of any other covenant or agreement
contained in the Indenture which default continues for a period of 45 days
after the Company receives written notice specifying the default (and demanding
that such default be remedied) from the Trustee or the Holders of at least 25%
of the outstanding principal amount of the Notes (except in the case of a
default with respect to Section 5.1 of the Indenture, which will constitute an
Event of Default with such notice requirement but without such passage of time
requirement); (iv) the failure to pay at final maturity (giving effect to
any applicable grace periods and any extensions thereof) the stated principal
amount of any Indebtedness of the Company or any Restricted Subsidiary of the
Company, or the acceleration of the final stated maturity of any such
Indebtedness (which acceleration is not rescinded, annulled or otherwise cured
within 30 days of receipt by the Company or such Restricted Subsidiary of
notice of any such acceleration) if the aggregate principal amount of such
Indebtedness, together with the principal amount of any other such Indebtedness
in default for failure to pay principal at final stated maturity or which has
been accelerated (in each case with respect to which the 30-day period described
above has elapsed), aggregates $5 million or more at any time; provided that if such failure to pay shall
be remedied, waived or extended within 30 days of receipt by the Company or
such Restricted Subsidiary of notice of such acceleration, then any Default or
Event of Default hereunder shall be deemed likewise to be remedied, waived or
extended without further action by the Company; (v) one or more judgments
in an aggregate amount in excess of $5 million shall have been rendered
against the Company or any of its Restricted Subsidiaries and such judgments
remain undischarged, unpaid or unstayed for a period of 60 days after such
judgment or judgments become final and non-appealable; (vi) certain events
of bankruptcy affecting the Company or any of its Significant Subsidiaries; or
(vii) any Guarantee of a Significant Subsidiary ceases to be in full force
and effect or is declared to be null and void and unenforceable or is found to
be invalid or any Guarantor that is a Significant Subsidiary denies its liability
under its Guarantee (other than by reason of release of a Guarantor in
accordance with the terms of the Indenture).


 


14.                                 Trustee Dealings with Company. Subject to certain limitations, the Trustee
under the Indenture, in its individual or any other capacity, may become owner
or pledgee of Notes and may otherwise deal with the Company or its Affiliates
as if it were not Trustee.


 


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


 


16.                                 Authentication. This Note shall not be valid until
authenticated by the signature of the Trustee or an authenticating agent.


 


17.                                 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


 


B-5

















 


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


 


18.                                 Discharge Prior to Maturity. If the Company deposits with the Trustee or
Paying Agent cash or U.S. Government Securities sufficient to pay the principal
or Redemption Price of, and interest and Additional Interest, if any, on, the
Notes to maturity or a specified Redemption Date and satisfies certain
conditions specified in the Indenture, the Company will be discharged from the
Indenture, except for certain Sections thereof.


 


19.                                 Governing Law. The validity and interpretation of the
Indenture, the Guarantees, if any, and this Note shall be governed by and
construed in accordance with the laws of the state of New York, but without
giving effect to applicable principles of conflicts of law to the extent that
the application of the law of another jurisdiction would be required thereby. Each
party hereto agrees to submit to the jurisdiction of any New York state court
sitting in the Borough of Manhattan in the City of New York or any federal
court sitting in the Borough of Manhattan in the City of New York in respect of
any suit, action or proceeding arising out of or relating to the Indenture, the
Guarantees, if any, and the Notes, and irrevocably accepts for itself and in
respect of its property, generally and unconditionally, jurisdiction of the
aforesaid courts in respect of such suit or action or proceeding arising out of
or relating to the Indenture, the Notes and the Guarantees. Each of the
Trustee, the Company and any Guarantor irrevocably waives, to the fullest
extent that it may effectively do so under applicable law, trial by jury and
any objection which it may now or hereafter have to the laying of the venue of
any such suit, action or proceeding brought in any such court and any claim
that any such suit, action or proceeding brought in any such court has been
brought in an inconvenient forum.


 


20.                                 CUSIP Numbers. Pursuant to a recommendation promulgated by
the Committee on Uniform Security Identification Procedures, the Company has
caused CUSIP numbers to be printed on the Notes and the Trustee may use CUSIP
numbers in notices of redemption as a convenience to Holders. No representation
is made as to the correctness or accuracy of such numbers either as printed on
the Notes or as contained in any notice of redemption or repurchase 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. Request may be made to:


 


MxEnergy
Holdings Inc.

595 Summer Street

Stamford, CT  06901

Attention:  Tom Hartmann


 


B-6

















 


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

  	
   

  
	
  agent
  to transfer this Note on the books of the Company. The agent may substitute
  another to act for him.

  



 


	
   

  	
  Date:

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Your
  Signature:

  	
   

  
	
   

  	
   

  	
   

  	
  (Sign exactly as your name
  appears on the

  face of this Note)

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Signature
  Guarantee:

  	
   

  
	
   

  	
   

  	
   

  	
  (Participant in recognized signature guarantee
  medallion program)

  
								



 


B-7

















 


OPTION OF HOLDER TO ELECT PURCHASE


 


If
you wish to elect to have all or any portion of this Note purchased by the
Company pursuant to Section 4.10 (“Net Proceeds Offer”) or
Section 4.15 (“Change of Control Offer”) of the Indenture, check
the applicable boxes


 


	
  o Net Proceeds Offer:

  	
   

  	
  o Change of Control Offer:

  
	
   

  	
   

  	
   

  
	
  in whole

  	
  o

  	
   

  	
  in whole

  	
  o

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  in part

  	
  o

  	
   

  	
  in part

  	
  o

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Amount to be

  purchased: $              

  	
   

  	
  Amount to be

  purchased: $              

  



 


 


	
  Dated:

  	
   

  	
   

  	
  Signature:

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
  (Sign
  exactly as your name appears on the

  other side of this Note)

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Signature
  Guarantee:

  	
   

  	
   

  
	
   

  	
  (Participant in recognized signature guarantee
  medallion program)

  
	
   

  	
   

  
	
  Social
  Security Number or

  Taxpayer Identification Number:

  	
   

  	
   

  
									



 


B-8

















 


SCHEDULE OF EXCHANGES OF NOTES


 


The
following exchanges of a part of this Global Note for Certificated Notes or a
part of another Global Note have been made:


 


	
  Date of Exchange

  	
   

  	
  Amount of decrease

  in principal amount

  of this Global Note

  	
   

  	
  Amount of increase

  in principal amount

  of this Global Note

  	
   

  	
  Principal amount of

  this Global Note

  following such

  decrease (or

  increase)

  	
   

  	
  Signature of

  authorized officer of

  Trustee

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  



 


B-9

















 


EXHIBIT C


 


FORM OF
GUARANTEE


 


For
value received, [each of] the undersigned hereby unconditionally guarantees to
the Holder of this Note the cash payments in United States dollars of principal
of, premium, if any, and interest on this Note (and including Additional
Interest payable thereon) in the amounts and at the times when due and interest
on the overdue principal, premium, if any, and interest, if any, of this Note,
if lawful, and the payment or performance of all other Obligations of the
Company under the Indenture (as defined below) or this Note, to the Holder of
this Note and the Trustee, all in accordance with and subject to the terms and
limitations of this Note, Article X of the Indenture and this Guarantee. This
Guarantee will become effective in accordance with Article X of the Indenture
and its terms shall be evidenced therein. The validity and enforceability of
this Guarantee shall not be affected by the fact that it is not affixed to any
particular Note. Capitalized terms used but not defined herein shall have the
meanings ascribed to them in the Indenture dated as of August 4, 2006, between
MxEnergy Holdings Inc., a Delaware corporation, as issuer (the “Company”),
Law Debenture Trust Company of New York, as trustee (the “Trustee”) and
Deutsche Bank Trust Company Americas as paying agent and registrar (as amended
or supplemented, the “Indenture”).


 


THIS GUARANTEE SHALL BE GOVERNED BY, AND CONSTRUED IN
ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK BUT WITHOUT GIVING EFFECT TO
APPLICABLE PRINCIPLES OF CONFLICTS OF LAW TO THE EXTENT THAT THE APPLICATION OF
THE LAW OF ANOTHER JURISDICTION WOULD BE REQUIRED THEREBY. Each Guarantor hereby agrees to submit to
the jurisdiction of the courts of the State of New York in any action or
proceeding arising out of or relating to this Guarantee.


 


C-1

















 


This
Guarantee is subject to release upon the terms set forth in the Indenture.


 


	
   

  	
  MXENERGY
  CAPITAL HOLDINGS CORP.

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
  Name:

  
	
   

  	
  Title:

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  MXENERGY
  CAPITAL CORP.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
  Name:

  
	
   

  	
  Title:

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  ONLINE
  CHOICE INC.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
  Name:

  
	
   

  	
  Title:

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  MXENERGY
  GAS CAPITAL HOLDINGS

  CORP.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
  Name:

  
	
   

  	
  Title:

  



 


C-2

















 


	
   

  	
  MXENERGY
  ELECTRIC CAPITAL

  HOLDINGS CORP.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
  Name:

  
	
   

  	
  Title:

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  MXENERGY
  SERVICES INC.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
  Name:

  
	
   

  	
  Title:

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  INFOMETER.COM
  INC.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
  Name:

  
	
   

  	
  Title:

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  MXENERGY
  GAS CAPITAL CORP.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
  Name:

  
	
   

  	
  Title:

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  MXENERGY
  ELECTRIC CAPITAL CORP.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
  Name:

  
	
   

  	
  Title:

  



 


C-3

















 


	
   

  	
  MXENERGY
  INC.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
  Name:

  
	
   

  	
  Title:

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  MXENERGY
  ELECTRIC INC.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
  Name:

  
	
   

  	
  Title:

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  TOTAL
  GAS & ELECTRICITY INC.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
  Name:

  
	
   

  	
  Title:

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  TOTAL
  GAS & ELECTRICITY (PA) INC.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
  Name:

  
	
   

  	
  Title:

  
	
   

  	
   

  
	
   

  	
   

  



 


C-4

















 


EXHIBIT D(1)


 


FORM OF REGULATION S CERTIFICATE


 


                   ,       


 


Deutsche
Bank Trust Company Americas

60 Wall Street, 27th Floor

Mail Stop:  NYC60-2710

New York, NY  10005


 


	
  Re:

  	
   

  	
  MxEnergy
  Holdings Inc. (the “Company”)

  
	
   

  	
   

  	
  Floating
  Rate Senior Notes due 2011 (the “Notes”)

  



 


Dear
Sirs:


 


This
letter relates to U.S. $              
principal amount at maturity of Notes represented by a certificate (the “Legended
Certificate”) which bears a legend outlining restrictions upon transfer of
such Legended Certificate. Pursuant to Section 2.1 of the Indenture (the “Indenture”)
dated as of August 4, 2006 relating to the Notes, we hereby certify that we are
(or we will hold such securities on behalf of) a person outside the United
States to whom the Notes could be transferred in accordance with Rule 904 of
Regulation S promulgated under the U.S. Securities Act of 1933, as amended.


 


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. Terms used in this letter have the meanings set forth
in Regulation S.


 


	
   

  	
  Very
  truly yours,

  
	
   

  	
   

  
	
   

  	
  [Name
  of Transferee]

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Authorized Signature

  



 


D-1-1

















 


EXHIBIT D(2)


 


FORM OF CERTIFICATE TO BE DELIVERED

UPON EXCHANGE OR REGISTRATION OF TRANSFER OF NOTES


 


                   ,       


 


Deutsche
Bank Trust Company Americas

60 Wall Street, 27th Floor

Mail Stop:  NYC60-2710

New York, NY  10005


 


	
  Re:

  	
   

  	
  MxEnergy
  Holdings Inc. (the “Company”)

  
	
   

  	
   

  	
  Floating
  Rate Senior Notes due 2011 (the “Notes”)

  



 


Dear
Sirs:


 


This
Certificate relates to $              
principal amount of Notes held in


 


o 
book-entry* or o 
certificated form*


 


by                                                                 (the
“Transferor”).


 


The
Transferor:*


 


o has requested the Trustee by written order
to deliver in exchange for its beneficial interest in the Global Note held by
the Depositary a Note or Notes in certificated, registered form of authorized
denominations in an aggregate principal amount equal to its beneficial interest
in such Global Note (or the portion thereof indicated above); or


 


o has requested the Trustee by written order
to exchange or register the transfer of a Note or Notes.


 


In
connection with such request and in respect of each such Note, the Transferor
does hereby certify that Transferor is familiar with the Indenture relating to
the above captioned Notes and as provided in Section 2.6 of such
Indenture, the transfer of this Note does not require registration under the
Securities Act (as defined below) because:*


 


o Such Note is being acquired for the
Transferor’s own account, without transfer.


 






*              Check applicable box


D-2-1

















 


o Such Note is being transferred to a “qualified
institutional buyer” (as defined in Rule 144A under the Securities Act of 1933,
as amended (the “Securities Act”)) in reliance on Rule 144A and
accordingly the undersigned does hereby certify that the Note is being
transferred to a person that the transferor reasonably believes is purchasing
the Note for its own account, or for one or more accounts with respect to which
such Person exercises sole investment discretion and the Notes have been transferred
in a transaction meeting the requirements of Rule 144A and in accordance with
any applicable securities law of any state of the United States.


 


o Such Note is being transferred to an “accredited
investor” (as defined in Rule 501(a)(1), (2), (3) or (7) under the Securities
Act) in accordance with Regulation D under the Securities Act.


 


o Such Note is being transferred pursuant to
an exemption from registration in accordance with Regulation S under the
Securities Act.


 


o Such Note is being transferred in accordance
with Rule 144 under the Securities Act, or pursuant to an effective
registration statement under the Securities Act.


 


o Such Note is being transferred in reliance
on and in compliance with an exemption from the registration requirements of
the Securities Act, other than Rule 144A, 144 or Rule 904 under the Securities
Act. An Opinion of Counsel to the effect that such transfer does not require
registration under the Securities Act accompanies this Certificate.


 


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.


 


	
   

  	
  Very
  truly yours,

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  [INSERT
  NAME OF TRANSFEROR]

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title

  
	
   

  	
   

  
	
  Date:

  	
   

  	
   

  	
   

  
					



 


D-2-2

















 


EXHIBIT E


 


FORM OF CERTIFICATE TO BE

DELIVERED IN CONNECTION WITH

TRANSFERS TO NON-QIB ACCREDITED INVESTORS


 


                   ,       


 


Deutsche
Bank Trust Company Americas

60 Wall Street, 27th Floor

Mail Stop:  NYC60-2710

New York, NY  10005


 


	
  Re:

  	
   

  	
  MxEnergy
  Holdings Inc. (the “Company”)

  
	
   

  	
   

  	
  Floating
  Rate Senior Notes due 2011 (the “Notes”)

  



 


Dear
Sirs:


 


In
connection with our proposed purchase of Floating Rate Senior Notes due 2011
(the “Notes”) of the Company, we confirm that:


 


1.                                       We understand that any subsequent transfer of
the Notes is subject to certain restrictions and conditions set forth in the
Indenture dated as of August 4, 2006 relating to the Notes (the “Indenture”)
and the undersigned agrees to be bound by, and not to resell, pledge or
otherwise transfer the Notes except in compliance with, such restrictions and
conditions and the Securities Act of 1933, as amended (the “Securities Act”).


 


2.                                       We understand that the Notes have not been
registered under the Securities Act or any other applicable securities law, and
that the Notes may not be offered, sold or otherwise transferred 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 offer, sell, transfer, pledge, hypothecate or otherwise dispose of any
Notes, we will do so only (A) to the Company or any Subsidiary thereof,
(B) inside the United States to a “qualified institutional buyer” in compliance
with Rule 144A under the Securities Act, (C) inside the United States to an
institutional “accredited investor” (as defined below) that, prior to such
transfer, furnishes to you a signed letter substantially in the form of this
letter, (D) outside the United States to a foreign person in compliance with
Rule 904 of Regulation S under the Securities Act, (E) pursuant to the
exemption from registration provided by Rule 144 under the Securities Act (if
available), (F) in accordance with another exemption from the registration
requirements of the Securities Act, or (G) pursuant to an effective
registration statement under the Securities Act, and we further agree to provide
to any person purchasing any of the Notes from us a notice advising such
purchaser that resales of the Notes are restricted as stated herein and in the
Indenture.


 


3.                                       We understand that, with respect to any
proposed transfer of any Notes, pursuant to paragraphs 2(B), 2(C), 2(D) and
2(E) above, 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 transfer complies with such
restrictions and that with respect to any transfer in accordance with paragraph
2(F) we will be required to furnish to you and the Company such legal opinions
and other information as you or the Company may reasonably require to confirm
that such transfer is being made pursuant to an exemption from, or in a
transaction not subject to, the registration requirements of the Securities Act.
We further


 


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understand that the Notes
purchased by us will bear a legend to such effect. We acknowledge that no
representation is made as to the availability of any Rule 144 exemption from
the registration requirements of the Securities Act.


 


4.                                       We are an institutional “accredited investor”
(as defined in Rule 501(a)(1), (2), (3) or (7) 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 acquiring the Notes for
investment purposes and not with a view to, or offer of sale in connection
with, any distribution in violation of the Securities Act or the securities
laws of any state of the United States or any other applicable jurisdiction, and
we are each able to bear the economic risk of our or its investment.


 


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


 


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


 


	
   

  	
  Very
  truly yours,

  
	
   

  	
   

  
	
   

  	
  [Name
  of Transferee]

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Authorized Signature

  



 


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EXHIBIT F


 


FORM OF CERTIFICATE TO BE DELIVERED

IN CONNECTION WITH TRANSFERS

PURSUANT TO REGULATION S


 


                   ,       


 


Deutsche
Bank Trust Company Americas

60 Wall Street, 27th Floor

Mail Stop:  NYC60-2710

New York, NY  10005


 


	
  Re:

  	
   

  	
  MxEnergy
  Holdings Inc. (the “Company”)

  
	
   

  	
   

  	
  Floating
  Rate Senior Notes due 2011 (the “Notes”)

  



 


Dear
Sirs:


 


In
connection with our proposed sale of $         
aggregate principal amount at maturity of the Notes, we confirm that such sale
has been effected pursuant to and in accordance with Regulation S under the
Securities Act of 1933, as amended, and, accordingly, we represent that:


 


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


 


(2)                                  at the time the buy order was originated, the
transferee was outside the United States or we and any person acting on our
behalf reasonably believed that the transferee was outside the United States;


 


(3)                                  no directed selling efforts have been made by
us, any of our affiliates or any person acting on our behalf in the United
States in contravention of the requirements of Rule 903(b) or Rule 904(b) of
Regulation S, as applicable;


 


(4)                                  the transaction is not part of a plan or
scheme to evade the registration requirements of the U.S. Securities Act of
1933; and


 


(5)                                  if we are a dealer or a person receiving a
selling concession fee or other remuneration in respect of the Notes, and the
proposed transfer takes place within 40 days of the Issue Date (as defined in
the Indenture), or we are an officer or director of the Company or an Initial
Purchaser (as defined in the Indenture), we certify that the proposed transfer
is being made in accordance with Rule 904(b) of Regulation S.


 


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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. Terms used in this letter have the meanings set forth
in Regulation S.


 


	
   

  	
  Very
  truly yours,

  
	
   

  	
   

  
	
   

  	
  [Name
  of Transferor]

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Authorized Signature

  



 


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