Exhibit
10.20


 




 





EXCHANGE AGREEMENT


 


among


 


DFG HOLDINGS, INC.,


 


GS MEZZANINE PARTNERS,
L.P.,


 


GS MEZZANINE PARTNERS
OFFSHORE, L.P.,


 


STONE STREET FUND 1998,
L.P.,


 


BRIDGE STREET FUND 1998,
L.P.,


 


ARES LEVERAGED INVESTMENT
FUND, L.P.,


 


and


 


ARES LEVERAGED INVESTMENT
FUND II, L.P.,


 


 


Dated as of November 13,
2003


 


 


Relating to:


 


$49,351,422.48 Aggregate
Principal Amount of

16% Senior Notes Due 2012


 




 




















 


TABLE OF CONTENTS


 


	
  SECTION
  1.  DEFINITIONS AND ACCOUNTING TERMS

  	
   

  
	
  1.1.

  	
  Definitions

  	
   

  
	
  1.2.

  	
  Computation of Time
  Periods

  	
   

  
	
  1.3.

  	
  Accounting Terms

  	
   

  
	
   

  	
   

  	
   

  
	
  SECTION
  2.  AUTHORIZATION AND ISSUANCE OF THE
  NOTES

  	
   

  
	
  2.1.

  	
  Authorization of Issue

  	
   

  
	
  2.2.

  	
  Exchange
  of the Existing Holdings Notes for the Notes

  	
   

  
	
  2.3.

  	
  Closing

  	
   

  
	
   

  	
   

  	
   

  
	
  SECTION
  3.  CONDITIONS TO CLOSING

  	
   

  
	
  3.1.

  	
  Representations and
  Warranties

  	
   

  
	
  3.2.

  	
  Performance;
  No Default under Other Agreements

  	
   

  
	
  3.3.

  	
  Compliance Certificates

  	
   

  
	
  3.4.

  	
  Opinions of Counsel

  	
   

  
	
  3.5.

  	
  Changes in Corporate
  Structure

  	
   

  
	
  3.6.

  	
  Refinancing

  	
   

  
	
  3.7.

  	
  DFG
  Senior Notes Documents; Credit Agreement; Subordinated Notes.

  	
   

  
	
  3.8.

  	
  Material Adverse Effect

  	
   

  
	
  3.9.

  	
  Financial Information

  	
   

  
	
  3.10.

  	
  Proceedings and Documents

  	
   

  
	
  3.11.

  	
  Exchange Permitted
  By Applicable Law, etc

  	
   

  
	
  3.12.

  	
  Transaction
  Documents in Force and Effect; Information.

  	
   

  
	
  3.13.

  	
  No
  Violation; No Legal Constraints; Consents, Authorizations and Filings, etc.

  	
   

  
	
  3.14.

  	
  Interest Payment;
  Payment of Expense

  	
   

  
	
   

  	
   

  	
   

  
	
  SECTION
  4.  REPRESENTATIONS AND WARRANTIES OF
  THE COMPANY

  	
   

  
	
  4.1.

  	
  Due
  Incorporation; Power and Authority

  	
   

  
	
  4.2.

  	
  Capitalization

  	
   

  
	
  4.3.

  	
  Subsidiaries

  	
   

  
	
  4.4.

  	
  Due
  Authorization, Execution and Delivery

  	
   

  
	
  4.5.

  	
  Non-Contravention;
  Authorizations and Approvals

  	
   

  
	
  4.6.

  	
  DFG Financial
  Statements; DFG Reports

  	
   

  
	
  4.7.

  	
  Absence of
  Undisclosed Liabilities or Events

  	
   

  
	
  4.8.

  	
  No Actions or Proceedings

  	
   

  
	
  4.9.

  	
  Title to Properties

  	
   

  
	
  4.10.

  	
  Intellectual Property
  Rights

  	
   

  
	
  4.11.

  	
  Taxes.

  	
   

  
	
  4.12.

  	
  Employee Benefit Plans.

  	
   

  
	
  4.13.

  	
  Private
  Offering; No Integration or General Solicitation.

  	
   

  
	
  4.14.

  	
  Eligibility for
  Resale under Rule 144A

  	
   

  
	
  4.15.

  	
  Status Under Certain
  Statutes

  	
   

  
	
  4.16.

  	
  Insurance

  	
   

  



 


i

















 


	
  4.17.

  	
  Existing
  Indebtedness; Future Liens

  	
   

  
	
  4.18.

  	
  Compliance with Laws;
  Permits

  	
   

  
	
  4.19.

  	
  Solvency

  	
   

  
	
  4.20.

  	
  Affiliate Transactions

  	
   

  
	
  4.21.

  	
  Material Contracts

  	
   

  
	
  4.22.

  	
  Pari Passu Obligations

  	
   

  
	
  4.23.

  	
  No Changes to Applicable
  Law

  	
   

  
	
  4.24.

  	
  Indebtedness

  	
   

  
	
  4.25.

  	
  Fees

  	
   

  
	
  4.26.

  	
  Documents and Procedures

  	
   

  
	
  4.27.

  	
  Standards and Procedures

  	
   

  
	
  4.28.

  	
  No Unrelated Liabilities

  	
   

  
	
  4.29.

  	
  Brokerage Fees

  	
   

  
	
   

  	
   

  	
   

  
	
  SECTION
  5.  REPRESENTATIONS OF THE PURCHASERS

  	
   

  
	
  5.1.

  	
  Purchase for Investment.

  	
   

  
	
  5.2.

  	
  Waiver of Notice of
  Redemption

  	
   

  
	
   

  	
   

  	
   

  
	
  SECTION
  6.  COVENANTS TO PROVIDE INFORMATION

  	
   

  
	
  6.1.

  	
  Future Reports to
  Purchasers.

  	
   

  
	
   

  	
   

  	
   

  
	
  SECTION
  7.  OTHER AFFIRMATIVE COVENANTS

  	
   

  
	
  7.1.

  	
  Preservation
  of Corporate Existence and Franchises

  	
   

  
	
  7.2.

  	
  Maintenance of Properties

  	
   

  
	
  7.3.

  	
  Taxes.

  	
   

  
	
  7.4.

  	
  Books,
  Records and Access

  	
   

  
	
  7.5.

  	
  Compliance with Law

  	
   

  
	
  7.6.

  	
  Insurance

  	
   

  
	
  7.7.

  	
  Offer to
  Repurchase Upon Change of Control.

  	
   

  
	
  7.8.

  	
  Board Representation

  	
   

  
	
  7.9.

  	
  Offer
  to Purchase by Application of Excess Proceeds.

  	
   

  
	
  7.10.

  	
  Further Assurances

  	
   

  
	
   

  	
   

  	
   

  
	
  SECTION
  8.  NEGATIVE COVENANTS

  	
   

  
	
  8.1.

  	
  Stay,
  Extension and Usury Laws

  	
   

  
	
  8.2.

  	
  Restricted Payments

  	
   

  
	
  8.3.

  	
  Dividend
  and Other Payment Restrictions Affecting Subsidiaries

  	
   

  
	
  8.4.

  	
  Incurrence
  of Indebtedness and Issuance of Preferred Stock.

  	
   

  
	
  8.5.

  	
  Asset Sales.

  	
   

  
	
  8.6.

  	
  Transactions with
  Affiliates

  	
   

  
	
  8.7.

  	
  Limitation on Liens

  	
   

  
	
  8.8.

  	
  Limitation
  on Issuances and Sales of Capital Stock of Subsidiaries

  	
   

  
	
  8.9.

  	
  Sale and Leaseback
  Transactions

  	
   

  
	
  8.10.

  	
  Payments for Consents

  	
   

  
	
  8.11.

  	
  Merger,
  Consolidation, or Sale of Assets

  	
   

  
	
  8.12.

  	
  Successor Company
  Substituted

  	
   

  



 


ii

















 


	
  SECTION
  9.  PROVISIONS RELATING TO RESALES OF
  SECURITIES

  	
   

  
	
  9.1.

  	
  Private Offerings

  	
   

  
	
  9.2.

  	
  Offering Memorandum.

  	
   

  
	
  9.3.

  	
  Amendments
  and Supplements to the Offering Memorandum

  	
   

  
	
  9.4.

  	
  Copies of the
  Offering Memorandum

  	
   

  
	
  9.5.

  	
  Blue Sky Compliance

  	
   

  
	
  9.6.

  	
  Ratings of the Notes

  	
   

  
	
  9.7.

  	
  The Depositary

  	
   

  
	
  9.8.

  	
  Additional Company
  Information

  	
   

  
	
  9.9.

  	
  Agreement
  Not to Offer or Sell Additional Securities

  	
   

  
	
  9.10.

  	
  Exchange and
  Registration Rights Agreement

  	
   

  
	
  9.11.

  	
  No Integration

  	
   

  
	
  9.12.

  	
  Restriction on Repurchases

  	
   

  
	
  9.13.

  	
  DTC Agreement

  	
   

  
	
  9.14.

  	
  PORTAL

  	
   

  
	
  9.15.

  	
  Form D

  	
   

  
	
  9.16.

  	
  Syndication.

  	
   

  
	
  9.17.

  	
  Exchange Right

  	
   

  
	
   

  	
   

  	
   

  
	
  SECTION 10.  THE NOTES

  	
   

  
	
  10.1.

  	
  Form and Execution

  	
   

  
	
  10.2.

  	
  Terms of the Notes

  	
   

  
	
  10.3.

  	
  Denominations

  	
   

  
	
  10.4.

  	
  Form of Legend for the
  Notes

  	
   

  
	
  10.5.

  	
  Payments and Computations

  	
   

  
	
  10.6.

  	
  Registration,
  Registration of Transfer and Exchange.

  	
   

  
	
  10.7.

  	
  Transfer Restrictions.

  	
   

  
	
  10.8.

  	
  Mutilated,
  Destroyed, Lost and Stolen Notes

  	
   

  
	
  10.9.

  	
  Persons Deemed Owners

  	
   

  
	
  10.10.

  	
  Cancellation

  	
   

  
	
  10.11.

  	
  Home Office Payment

  	
   

  
	
   

  	
   

  	
   

  
	
  SECTION 11.  EVENTS OF DEFAULT

  	
   

  
	
  11.1.

  	
  Events of Default

  	
   

  
	
  11.2.

  	
  Remedies

  	
   

  
	
  11.3.

  	
  Waiver of Past Defaults

  	
   

  
	
  11.4.

  	
  Subordination
  of Special Mandatory Redemption

  	
   

  
	
   

  	
   

  	
   

  
	
  SECTION 12.  REDEMPTION

  	
   

  
	
  12.1.

  	
  Right of Redemption

  	
   

  
	
  12.2.

  	
  Partial Redemptions

  	
   

  
	
  12.3.

  	
  Notice of Redemption

  	
   

  
	
  12.4.

  	
  Deposit of Redemption Price

  	
   

  
	
  12.5.

  	
  Notes Payable on
  Redemption Date

  	
   

  
	
  12.6.

  	
  Notes Redeemed in Part

  	
   

  
	
  12.7.

  	
  Application of
  Redemption Payments

  	
   

  



 


iii

















 


	
  SECTION 13.  EXPENSES, INDEMNIFICATION AND CONTRIBUTION

  	
   

  
	
  13.1.

  	
  Expenses

  	
   

  
	
  13.2.

  	
  Indemnification.

  	
   

  
	
  13.3.

  	
  Contribution

  	
   

  
	
  13.4.

  	
  Survival

  	
   

  
	
   

  	
   

  	
   

  
	
  SECTION 14.  MISCELLANEOUS

  	
   

  
	
  14.1.

  	
  Notices

  	
   

  
	
  14.2.

  	
  Benefit
  of Agreement; Assignments and Participations

  	
   

  
	
  14.3.

  	
  No Waiver; Remedies
  Cumulative

  	
   

  
	
  14.4.

  	
  Amendments, Waivers and Consents

  	
   

  
	
  14.5.

  	
  Counterparts

  	
   

  
	
  14.6.

  	
  Reproduction

  	
   

  
	
  14.7.

  	
  Headings

  	
   

  
	
  14.8.

  	
  Survival of
  Covenants and Indemnities

  	
   

  
	
  14.9.

  	
  Governing
  Law; Submission to Jurisdiction; Venue.

  	
   

  
	
  14.10.

  	
  Severability

  	
   

  
	
  14.11.

  	
  Entirety

  	
   

  
	
  14.12.

  	
  Survival of
  Representations and Warranties

  	
   

  
	
  14.13.

  	
  Construction

  	
   

  
	
  14.14.

  	
  Incorporation

  	
   

  
	
   

  	
   

  
	
  EXHIBITS

  	
   

  
	
   

  	
   

  
	
  Exhibit
  A -  Form of Note

  	
   

  
	
  Exhibit 3.3(a) - Form of Officer’s Certificate

  	
   

  
	
  Exhibit 3.3(b) - Form of Secretary’s Certificate

  	
   

  
	
  Exhibit 3.4 - Form of Opinion of Counsel to Company

  	
   

  
	
   

  	
   

  
	
  SCHEDULES

  	
   

  
	
   

  	
   

  
	
  Schedule
  A  - 
  Information Relating to the Purchasers

  	
   

  
	
  Schedule B 
  -  Primary and Fully Diluted
  Equity Ownership

  	
   

  
	
  Schedule 4.3 - Company and Subsidiaries

  	
   

  
	
  Schedule 4.9 - Title to Properties

  	
   

  
	
  Schedule 4.11 - Taxes

  	
   

  
	
  Schedule 4.12(e) - Plans

  	
   

  
	
  Schedule 4.17 - Indebtedness

  	
   

  
	
  Schedule 4.18 - Permits

  	
   

  
	
  Schedule 4.21 - Material Contracts

  	
   

  
	
  Schedule 4.29 - Broker’s Fee

  	
   

  



 


iv

















 


EXCHANGE AGREEMENT


 


 


EXCHANGE AGREEMENT, dated as of November 13, 2003,
among DFG Holdings, Inc., a Delaware corporation (the “Company”), GS
Mezzanine Partners, L.P., a limited partnership organized under the laws of
Delaware (“GS Mezzanine”), GS Mezzanine Partners Offshore, L.P., an
exempted limited partnership organized under the laws of the Cayman Islands (“GS
Mezzanine Offshore”), Stone Street Fund 1998, L.P., a limited partnership
organized under the laws of Delaware (“Stone Street”), Bridge Street
Fund 1998, L.P., a limited partnership organized under the laws of Delaware (“Bridge
Street”, and collectively with Stone Street, GS Mezzanine and GS
Mezzanine Offshore, the “GSMP Purchasers”), Ares Leveraged Investment
Fund, L.P., a limited partnership organized under the laws of Delaware (“Ares
I”) and Ares Leveraged Investment Fund II, L.P., a limited partnership
organized under the laws of Delaware (“Ares II” and, collectively
with Ares I, “Ares” and, collectively with the GSMP Purchasers, the “Purchasers”).


 


RECITALS


 


WHEREAS, the Company entered into a Purchase
Agreement, dated as of December 18, 1998 (as amended, supplemented or otherwise
modified, the “Existing Holdings Purchase Agreement”), with the
Purchasers pursuant to which the Company sold to the Purchasers $120,625,617.30
aggregate principal amount at maturity of 13% Senior Discount Notes Due 2006
(together with all notes issued in exchange, substitution or replacement
therefor, the “Existing Holdings Notes”) and 1,040.6103 shares (the “Holdings
Note Shares”) of Class A Common Stock, par value $0.001 per share of the
Company (the “Class A Common Stock”), for aggregate cash proceeds of
$62,080,000.


 


WHEREAS, the Company entered into a Subscription
Agreement, dated December 18, 1998 (as amended, supplemented or otherwise
modified, the “Subscription Agreement”) with the Purchasers, pursuant to
which the Company sold to the Purchasers an aggregate of 1,957.5378 shares of
Class A Common Stock (the “Subscription Shares”) for an aggregate
purchase price of $5,313,059.46.


 


WHEREAS, Dollar Financial Group, Inc., a New York
corporation and a wholly owned subsidiary of the Company (“DFG”) entered
into a Purchase Agreement, dated as of December 18, 1998 (as amended,
supplemented or otherwise modified, the “Existing DFG Purchase Agreement”),
with the Purchasers pursuant to which DFG sold to the Purchasers $20,000,000
aggregate principal amount of 10 7/8% Senior Subordinated Notes Due 2006
(together with all notes issued in exchange, substitution or replacement
therefor, the “Existing DFG Notes”).


 


WHEREAS, the Company entered into an Exchange and
Registration Rights Agreement, dated December 18, 1998 (the “Existing
Exchange and Registration Rights Agreement”), with the Purchasers, pursuant
to which the holders of the Existing Holdings Notes from time to time were
entitled to certain benefits thereof.


 


1

















 


WHEREAS, the Company entered into a Stockholders
Agreement, dated December 18, 1998 (the “Existing Stockholders Agreement”),
with the Purchasers and the other Stockholders of the Company named therein.


 


WHEREAS, the Company entered into a $160,000,000
credit facility, dated December 18, 1998 (as amended, supplemented or
otherwise modified, the “Existing Credit Agreement”), among the Company,
DFG, and Wells Fargo Bank, National Association, a national banking association
(“Wells Fargo”), as administrative agent for the lenders named therein,
First Union Capital Markets and Wells Fargo, as arrangers of the credit
facilities evidenced thereby, First Union National Bank, as syndication agent,
U.S. Bank National Association, as documentation agent, and the lenders named therein,
which provide for a revolving credit facility in favor of DFG of up to
$70,000,000 and two term loan facilities in favor of DFG of up to $90,000,000.


 


WHEREAS, the Accreted Value (as defined in the
Existing Holdings Purchase Agreement) of the Existing Holdings Notes
immediately prior to the Closing Date (as hereinafter defined) will be
$118,702,844.96.


 


WHEREAS, the Company has requested the Purchasers to
exchange their Existing Holdings Notes outstanding at the Closing and not
redeemed as described in the thirteenth recital below for the following:  (i) $49,351,422.48 aggregate principal
amount of 16% Senior Notes Due 2012 (the “Notes” such term to include
all notes issued in exchange, substitution or replacement therefor including
the Exchange Notes and the Replacement Notes (as hereinafter defined)), in the
form of Exhibit A hereto, to be issued by the Company in exchange for
50% of the Accreted Value of the then outstanding Existing Holdings Notes, (ii)
$49,351,422.48 aggregate principal amount of Subordinated Notes (as hereinafter
defined) to be issued by the Company pursuant to the Subordinated Note Exchange
Agreement hereinafter referred to, in exchange for 50% of the Accreted Value of
the then outstanding Existing Holdings Notes and (iii) cash payment equal to
sum of (x) the aggregate Financing Payment hereinafter referred to plus (y) the
aggregate “Financing Payment” pursuant to and as defined in the Subordinated
Note Exchange Agreement.


 


WHEREAS, the Company has agreed to enter into the
Second Amended and Restated Stockholders Agreement (as so amended, and as may
be further amended, supplemented or otherwise modified from time to time, the “Stockholders
Agreement”), dated the date hereof, among the Company, the Purchasers and
the other Stockholders of the Company named therein, to grant to the Purchasers
an irrevocable option (the “Put Option”) to require the Company to buy
from the Purchasers, such Purchaser’s Holdings Note Shares and Subscription
Shares, on the terms and subject to the conditions set forth therein.


 


WHEREAS, the Company will enter into an Exchange and
Registration Rights Agreement, dated the date hereof (as amended, supplemented
or otherwise modified from time to time, the “Exchange and Registration
Rights Agreement”), with the Purchasers pursuant to which the holders of
the Notes from time to time will be entitled to the benefits thereof.


 


WHEREAS, in substitution of the Existing Credit
Agreement, the Company will enter into a $55,000,000 credit facility, dated the
date hereof (as amended, supplemented or


 


2

















 


otherwise modified from time to time, the “Credit Agreement”),
among the Company, DFG, the lenders named therein, Wells Fargo, as
administrative agent for the lenders, U.S. Bank, National Association, as
syndication agent, and Citicorp North America, Inc. as documentation agent, and
which will provide for a revolving credit facility in favor of DFG of up to
$55,000,000 (of which not more than $20,000,000 (exclusive of any outstanding
letters of credit thereunder) will be drawn at the Closing (as defined
herein)).


 


WHEREAS, concurrently with the issuance of the Notes,
DFG will issue 9.75% Senior Notes due 2011 (together with all notes issued in
exchange, substitution or replacement therefor, the “DFG Senior Notes”)
to be issued pursuant to an indenture, dated the date hereof, among DFG, each
of the other guarantors (as defined therein) and U.S. Bank National
Association, as trustee (as amended, supplemented or otherwise modified from
time to time, the “DFG Senior Notes Indenture”) in an aggregate
principal amount of $220,000,000.


 


WHEREAS, DFG will redeem the Existing DFG Notes and
indebtedness under the Existing Credit Agreement with proceeds of the DFG
Senior Notes and, to the extent the net proceeds of the DFG Senior Notes exceed
$200,000,000, DFG will dividend or loan such amount to the Company and the
Company will redeem a portion of the Existing Holdings Notes in the amount of
such excess.


 


WHEREAS, the Company will enter into an Exchange
Agreement, dated the date hereof (as amended, supplemented or otherwise
modified from time to time, the “Subordinated Note Exchange Agreement”),
with the Purchasers, pursuant to which, the Company will, concurrently with the
issuance of the Notes, issue to the Purchasers $49,351,422.48 aggregate
principal amount of 13.95% Senior Subordinated Notes due 2012 (together with
all notes issued in exchange, substitution or replacement therefor, the “Subordinated
Notes”).


 


WHEREAS, the Company has duly authorized the creation
and issuance of the Notes, and the execution and delivery of this Agreement,
the Stockholders Agreement and the Exchange and Registration Rights Agreement.


 


WHEREAS, all things necessary to make the Notes (when
issued and delivered hereunder), this Agreement, the Stockholders Agreement and
the Exchange and Registration Rights Agreement valid and binding obligations of
the Company in accordance with their respective terms have been done.


 


NOW, THEREFORE, the parties hereto agree as follows:


 


SECTION 1.


 


DEFINITIONS AND ACCOUNTING TERMS


 


1.1.          Definitions.  As used herein, the following terms shall
have the meanings specified herein unless the context otherwise requires:


 


“Accredited Investor” means any Person that is
an “accredited investor” within the meaning of Rule 501(a) under the Securities
Act.


 


3

















 


“Accreted Value”, as used with respect to the
Existing Holdings Notes, is defined in the Existing Holdings Purchase
Agreement.


 


“Acquired Debt” means, with respect to any
specified Person, (i) Indebtedness of any other Person existing at the time
such other Person is merged with or into or became a Subsidiary of such
specified Person, including, without limitation, Indebtedness incurred in
connection with, or in contemplation of, such other Person merging with or into
or becoming a Subsidiary of such specified Person, and (ii) Indebtedness
secured by a Lien encumbering any asset acquired by such specified Person at
the time such asset is acquired by such specified Person.


 


“Additional Company Information” is defined in
Section 9.8.


 


“Affiliate” means, with respect to any
specified Person, any other Person directly or indirectly controlling or
controlled by or under direct or indirect common control with such specified
Person.  For purposes of this
definition, “control” (including, with correlative meanings, the terms “controlling,”
“controlled by” and “under common control with”), as used with
respect to any specified Person, shall mean the possession, directly or
indirectly, of the power to direct or cause the direction of the management or
policies of such Person, whether through the ownership of voting securities, by
agreement or otherwise; provided, however, that in the case of
the Company or any of its Subsidiaries beneficial ownership of 10% or more of
the voting securities of the Company or such Subsidiary, as the case may be,
shall be deemed to be control. 
Notwithstanding the foregoing, in no event will the Purchasers or any of
their Affiliates be deemed to be an Affiliate of the Company.


 


“Affiliate Transaction” is defined in
Section 8.6.


 


“Agreement” is defined in Section 14.4.


 


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


 


“Ares”, “Ares I” and “Ares II”
are defined in the preamble to this Agreement.


 


“Asset Sale” is defined in Section 8.5(a).


 


“Asset Sale Offer” is defined in
Section 7.9(a).


 


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


 


4

















 


“Audit Date” is defined in Section 4.6(b).


 


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


 


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


 


“Borrowing Base” means at any date the sum of
one hundred percent (100%) of each of the following for DFG and its Subsidiaries:  (i) cash held overnight in store safes,
(ii) balances held in store accounts, (iii) the amount payable under
checks held in store safes, (iv) clearing house transfers initiated on the
previous day and transfers of same-day funds to be credited to store accounts,
(v) cash held overnight by armored car carriers, (vi) eligible government
receivables in respect of government contracts and (vii) cash balances held in
demand deposit accounts and/or investment accounts; provided, however, that in no event shall any of the items
described in subparagraphs (i) through (vii) above be included in any
calculation of the “Borrowing Base” to the extent any of the same are subject
to any Lien other than in favor of the administrative agent for the benefit of
the lenders under the Credit Agreement. 
The Borrowing Base shall be determined by the Company upon each
incurrence of Indebtedness, and such determination shall be conclusive so long
as it is made in good faith.


 


“Bridge Street” is defined in the preamble to
this Agreement.


 


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


 


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


 


“Capital Expenditures” means, for any period
and with respect to any Person, the aggregate of all expenditures by such
Person and its Subsidiaries for the acquisition or leasing of fixed or capital
assets or additions to fixed or capital assets (including replacements,
capitalized repairs and improvements during such period) which should be
capitalized under GAAP on a consolidated balance sheet of such Person and its
Subsidiaries.


 


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


 


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


 


“Capitalized Interest” is defined in Exhibit A
hereto.


 


5

















 


“Cash Equivalents” means (i) direct
obligations of the United States of America or any agency thereof having
maturities of not more than one year from the date of acquisition,
(ii) time deposits and certificates of deposit of any domestic commercial
bank of recognized standing having capital and surplus in excess of
$500,000,000, with maturities of not more than one year from the date of
acquisition, (iii) repurchase obligations issued by any bank described in
clause (ii) above with a term not to exceed thirty (30) days;
(iv) commercial paper rated at least A-1 or the equivalent thereof by
S&P or at least P-1 or the equivalent thereof by Moody’s, in each case
maturing within one year after the date of acquisition and (v) shares of
any money market mutual fund, or similar fund, in each case having excess of
$500,000,000, which invests predominantly in investments of the types described
in clauses (i) through (iv) above.


 


“Change of Control” means the occurrence of any
of the following (i) the sale, lease, transfer, conveyance or other disposition
(other than by way of merger or consolidation), in one or more related
transactions, of all or substantially all of the properties and assets of the
Company and its Subsidiaries taken as a whole to any “person” (as such term is
used in Section 13(d)(3) of the Exchange Act), other than the Principals or
their Related Parties, (ii) the adoption of a plan relating to the liquidation
or dissolution of the Company, (iii) the consummation of any transaction or other
event (including, without limitation, any merger or consolidation) the result
of which is that any “person” (as defined above), other than the Principals and
their Related Parties, becomes the “beneficial owner” (as such term is defined
in Rule 13d-3 and Rule 13d-5 under the Exchange Act), directly or indirectly,
of more than 35% of the voting shares or economic value of the Capital Stock of
the Company or DFG, (iv) the consummation of any transaction (including,
without limitation, any merger or consolidation) the result of which is that
the Company ceases to own 100% of the outstanding Equity Interests of DFG or
(v) the first day on which a majority of the members of the Board of Directors
of the Company are not Continuing Directors.


 


“Change of Control Offer” is defined in
Section 7.7(a).


 


“Change of Control Payment” is defined in
Section 7.7(a).


 


“Change of Control Payment Date” is defined in
Section 7.7(b)(ii).


 


“Class A Common Stock” is defined in the first
recital to this Agreement.


 


“Class B Common Stock” shall mean the Class B
Common Stock, par value $0.001, of the Company.


 


“Closing” is defined in Section 2.3(a).


 


“Closing Date” is defined in
Section 2.3(a).


 


“Code” means the Internal Revenue Code of 1986,
as amended from time to time, and the rules and regulations promulgated
thereunder from time to time.


 


“Commission” means the Securities and Exchange
Commission, as from time to time constituted, created under the Exchange Act
or, if at any time after the execution of this


 


6

















 


Agreement such Commission is not existing and performing the duties now
assigned to it under the Exchange Act, the body performing such duties at such
time.


 


“Company” shall have the meaning assigned in
the preamble to this Agreement and its successors and permitted assigns.


 


“Company Financial Statements” is defined in
Section 6.1.


 


“Company Indemnified Person” is defined in
Section 13.2(b).


 


“Company Party” is defined in Section 4.4(f).


 


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


 


“Consolidated Cash Flow” means, with respect to
any Person for any period, the Consolidated Net Income of such Person for such
period plus (i) an amount equal to any extraordinary loss, to the extent that
such losses were deducted in computing such Consolidated Net Income for such
period, plus (ii) an amount equal to any net loss realized in connection with
an Asset Sale, the disposition of any securities by such Person or any of its
Subsidiaries or the extinguishment of any Indebtedness by such Person or its
Subsidiaries, to the extent such losses were deducted in computing such
Consolidated Net Income, plus (iii) provision for taxes based on income or
profits of such Person and its Subsidiaries for such period, to the extent that
such provision for taxes was deducted in computing such Consolidated Net
Income, plus (iv) consolidated interest expense of such Person and its
Subsidiaries for such period, whether paid or accrued and whether or not
capitalized (including, without limitation, amortization of original issue
discount, non-cash interest payments, the interest component of any deferred
payment obligations, the interest component of all payments associated with
Capital Lease Obligations, imputed interest with respect to Attributable Debt,
commissions, discounts and other fees and charges incurred in respect of letter
of credit or bankers’ acceptance financings, and net payments (if any) pursuant
to Hedging Obligations), to the extent that any such expense was deducted in
computing such Consolidated Net Income, plus (v) depreciation, amortization
(including amortization of goodwill and other intangibles but excluding
amortization of prepaid cash expenses that were paid in a prior period) and
other non-cash charges (excluding any such non-cash charge to the extent that
it represents an accrual of or reserve for cash charges in any future period or
amortization of a prepaid cash expense that was paid in a prior period) of such
Person and its Subsidiaries for such period to the extent that such
depreciation, amortization and other non-cash charges were deducted in
computing such Consolidated Net Income, minus (vi) all non-cash items to the
extent that such non-cash items increased Consolidated Net Income for such
period, minus (vi) the amount of Earn-out Obligations paid in cash during such
period (to the extent not already reflected as an expense in Consolidated Net
Income), in each case, on a


 


7

















 


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


 


“Consolidated Net Income” means, with respect
to any specified Person for any period, the aggregate of the Net Income of such
Person and its Subsidiaries for such period, on a consolidated basis, determined
in accordance with GAAP; provided, that (i) the Net Income (but not
loss) of any Person that is not a Subsidiary or that is accounted for by the
equity method of accounting shall be included only to the extent of the amount
of dividends or distributions paid in cash to the specified Person or one of
its Wholly Owned Subsidiaries, (ii) the Net Income of any Subsidiary shall be
excluded to the extent that the declaration or payment of dividends or similar
distributions by that Subsidiary of that Net Income is not at the date of
determination permitted without any prior governmental approval (that has not
been obtained) or, directly or indirectly, by operation of the terms of its
charter or any agreement, instrument, judgment, decree, order, statute, rule or
governmental regulation applicable to that Subsidiary or its stockholders,
(iii) the Net Income of any Person acquired in a pooling of interests
transaction for any period prior to the date of such acquisition shall be
excluded and (iv) the cumulative effect of a change in accounting principles
shall be excluded.


 


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


 


“Continuing Directors” means, as of any date of
determination, any member of the Board of Directors of the Company who was a
member of such Board of Directors as of the date hereof; provided, that any member of the Board of
Directors of the Company who was nominated for election or elected to such Board
of Directors with the approval, recommendation or endorsement of a majority of
the Continuing Directors who were members of such Board at the time of such
nomination or election, shall also be a Continuing Director.


 


“Contract” is defined in Section 4.5.


 


“Controlling Person” is defined in Section
13.2(a).


 


8

















 


“Credit Agreement” means the Credit Agreement
as defined in the eleventh recital of this Agreement, including any related
notes, Guarantees, collateral documents, instruments and agreements executed in
connection therewith, and in each case as amended, modified, restated, renewed,
refunded, replaced or refinanced from time to time.


 


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


 


“Current Accretion Amount” is defined in Exhibit A
hereto.


 


“Custodian” is defined in Section 11.1(h).


 


“Debt Ratio” is defined in Section 8.4(a).


 


“Default” means any event, act or condition
that is, or with the giving of notice, lapse of time or both would constitute
an Event of Default.


 


“Default Amount” is defined in
Section 11.2.


 


“Default Interest on Principal” is defined in Exhibit A
hereto.


 


“Depositary” is defined in Section 9.13.


 


“DFG” is defined in the third recital to this
Agreement.


 


“DFG Financial Statements” is defined in
Section 4.6(a).


 


“DFG Reports” is defined in Section 4.6(b).


 


“DFG Senior Notes” is defined in the twelfth
recital to this Agreement.


 


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


 


“DFG Senior Notes Indenture” is defined in the
eleventh recital to this Agreement.


 


“Director” means a member of the Board; provided,
however,
that in no event shall a Non-Voting Observer be deemed to be a Director.


 


“Disclosure Schedule” means all numbered
Schedules to this Agreement.


 


“Disqualified Stock” means any Capital Stock
that, by its terms (or by the terms of any security into which it is
convertible or for which it is exchangeable), or upon the happening of any
event, matures or is mandatorily redeemable, pursuant to a sinking fund


 


9

















 


obligation or otherwise, or redeemable at the option of the holder
thereof, in whole or in part, on or prior to the date that is ninety-one (91)
days after the Stated Maturity of the Notes.


 


“Earn-out Obligations” means contingent payment
obligations of the Company or any of its Subsidiaries incurred in connection
with the acquisition of assets or businesses, which obligations are payable
based on the performance of the assets or businesses so acquired; provided,
however,
that (i) such obligations shall be expressly subordinated to the Notes on terms
that are customary for the subordination of obligations of this type
(including, without limitation, the right to make Earn-Out Obligation payments
as they become due; provided that
at the time of such payment no Default or Event of Default has occurred and is
continuing, or would exist as a result of the making of such payment), (ii) the
amount of such obligations shall not exceed 25% of the total consideration paid
for such assets or businesses and (iii) that the amount of such obligations
outstanding at any time shall be measured by the maximum amount potentially
payable thereunder without regard to performance criteria, the passage of time
or other conditions.


 


“Enforceability Exceptions” means, with respect
to any specified obligation, any limitations on the enforceability of such obligation
due to bankruptcy, insolvency, reorganization, moratorium, and other similar
laws of general applicability relating to or affecting creditors’ rights or
general equity principles (other than, in any such case, any Federal or state
laws relating to fraudulent transfers).


 


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


 


“Equity Investee” is defined in Section 4.3.


 


“ERISA” means the Employee Retirement Income
Security Act of 1974, as amended from time to time, and the regulations
promulgated thereunder.


 


“ERISA Affiliate” is defined in
Section 4.12(b).


 


“Event of Default” is defined in Section 11.1.


 


“Excess Proceeds” is defined in Section 8.5(b).


 


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


 


“Exchange and Registration Rights Agreement” is
defined in the tenth recital to this Agreement.


 


“Exchange Note Offering” means an offering of
the Exchange Notes that is registered under the Securities Act.


 


“Exchange Notes” means the notes issued in the
Exchange Offer.


 


“Exchange Offer” is defined in the Exchange and
Registration Rights Agreement.


 


10

















 


“Exchange Offer Registration Statement” is
defined in the Exchange and Registration Rights Agreement.


 


“Existing Credit Agreement” is defined in the
sixth recital to this Agreement.


 


“Existing Exchange and Registration Rights
Agreement” is defined in the fourth recital to this Agreement.


 


“Existing Holdings Notes” is defined in the
first recital to this Agreement.


 


“Existing Holdings Purchase Agreement” is
defined in the first recital to this Agreement.


 


“Existing Indebtedness” is defined in Section
4.17.


 


“Existing DFG Notes” is defined in the third
recital to this Agreement.


 


“Existing DFG Purchase Agreement” is defined in
the third recital to this Agreement.


 


“Existing Stockholders Agreement” is defined in
the fifth recital to this Agreement.


 


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


 


“Financing Payment” means, with respect to each
Purchaser, on the Closing Date, an amount equal to 3% of the aggregate
principal amount of Notes issued to such Purchaser on or as of the Closing
Date.


 


“Fixed Charges” means, with respect to any
Person for any period, the sum of, without duplication, (i) the consolidated
interest expense of such Person and its Subsidiaries for such period, whether
paid or accrued (including, without limitation, amortization of original issue
discount, non-cash interest payments, the interest component of any deferred
payment obligations, the interest component of all payments associated with
Capital Lease Obligations, imputed interest with respect to Attributable Debt,
commissions, discounts and other fees and charges incurred in respect of letter
of credit or bankers’ acceptance financings, and net payments (if any) pursuant
to Hedging Obligations), (ii) the consolidated interest expense of such Person
and its Subsidiaries that was capitalized during such period, (iii) any
interest expense on Indebtedness of another Person that is Guaranteed by such
Person or one of its Subsidiaries or secured by a Lien on assets of such Person
or one of its Subsidiaries (whether or not such Guarantee or Lien is called
upon) and (iv) the product of (A) all cash dividend payments (and non-cash
dividend payments in the case of a Person that is a Subsidiary) on any series
of preferred stock of such Person plus all accrued but unpaid cash dividends on
Disqualified Stock,


 


11

















 


times (B) a fraction, the numerator of which is one and the denominator
of which is one minus the then current combined federal, state and local
statutory tax rate of such Person, expressed as a decimal, in each case, on a
consolidated basis and in accordance with GAAP.


 


“Fixed Charge Coverage Ratio” means with
respect to any Person for any period, the ratio of (x) the Consolidated Cash
Flow of such Person for such period less consolidated Capital Expenditures made
by such Person during such period to (y) the Fixed Charges of such Person for
such period calculated as provided in Section 8.4.


 


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


 


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


 


“GS Mezzanine” is defined in the preamble to
this Agreement.


 


“GS Mezzanine Offshore” is defined in the
preamble to this Agreement.


 


“GSMP Directors” is defined in Section 7.8(a).


 


“GSMP Purchasers” is defined in the preamble to
this Agreement.


 


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


 


“Guarantor” shall have the meaning assigned to
such term in the DFG Senior Notes Documents.


 


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


 


“Holder” means a Person in whose name a Note is
registered on the Security Register.


 


“Holdings Note Shares” is defined in the first
recital to this Agreement.


 


12

















 


“incur” is defined in Section 8.4(a).


 


“Incurrence Date” is defined in
Section 8.4(a).


 


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


 


“Indemnified Person” is defined in Section
13.2(c).


 


“Indenture” is defined in the Exchange and
Registration Rights Agreement.


 


“Institutional Accredited Investors” is defined
in Section 9.1(a).


 


“Institutional Investor” means (i) any original
purchaser of a Note and any transferee that is an Affiliate of any original
purchaser, (ii) any holder of a Note holding more than 25% of the aggregate
principal amount of the Notes then outstanding and (iii) any bank, trust
company, savings and loan association or other financial institution, any
pension plan, any investment company or investment fund, any insurance company,
any broker or dealer, or any other similar financial institution or entity,
regardless of legal form organized under the laws of the United States or a
State thereof, with capital and surplus in excess of $50,000,000.


 


“Intellectual Property” means (i) all
inventions and discoveries (whether patentable or unpatentable and whether or
not reduced to practice), all improvements thereto, and all patents, patent
applications and patent disclosures, together with all reissuances,
continuations, continuations-in-part, revisions, extensions and reexaminations
thereof, (ii) all trademarks, service marks, trade dress, logos, trade names
and corporate names, together with all translations, adaptations, derivations
and combinations thereof and including all goodwill associated therewith, (iii)
all copyrightable works, all copyrights and all applications, registrations and
renewals in connection therewith, (iv) all broadcast rights, (v) all mask works
and all applications, registrations and renewals in connection therewith, (vi)
all know-how, trade secrets and confidential business information, whether
patentable or unpatentable and whether or not reduced to practice (including
ideas, research and development, know-how, formulas, compositions and
manufacturing and production process and techniques, technical data, designs,


 


13

















 


drawings, specifications, customer and supplier lists, pricing and cost
information and business and marketing plans and proposals), (vii) all computer
software (including data and related documentation), (viii) all other
proprietary rights, (ix) all copies and tangible embodiments thereof (in
whatever form or medium) and (x) all licenses and agreements in connection
therewith.


 


“Interest Accrual Date” is defined in Exhibit
A hereto.


 


“Interest Payment Date” is defined in Exhibit
A hereto.


 


“Investments” means, with respect to any
Person, all investments by such Person in other Persons (including Affiliates)
in the form of direct or indirect loans (including Guarantees of Indebtedness
or other obligations), advances or capital contributions (excluding (i)
commission, travel and similar advances to officers and employees, (ii)
extensions of trade credit and (iii) any loans to customers, in each case made
on commercially reasonable terms and in the ordinary course of business),
purchases or other acquisitions for consideration of Indebtedness, Equity
Interests or other securities, together with all items that are or would be
classified as investments on a balance sheet prepared in accordance with GAAP; provided,
however,
that an acquisition of assets, Equity Interests or other securities by the Company
for consideration consisting of common equity securities of the Company shall
not be deemed to be an Investment.  If
the Company or any Subsidiary of the Company sells or otherwise disposes of any
Equity Interests of any direct or indirect Subsidiary of the Company such that,
after giving effect to any such sale or disposition, such Person is no longer a
Subsidiary of the Company, the Company shall be deemed to have made an
Investment on the date of any such sale or disposition equal to the fair market
value of the Equity Interests of such Subsidiary not sold or disposed of.


 


“IPO” means any underwritten primary public
offering of the capital stock of the Company or DFG, whether on a primary or
secondary basis, pursuant to an effective registration statement filed under
the Securities Act which generates gross proceeds to the seller(s) of at least
$25,000,000.


 


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


 


“Lien” means, with respect to any asset, any
mortgage, lien, pledge, charge, security interest or encumbrance of any kind in
respect of such asset, whether or not filed, recorded or otherwise perfected
under applicable law (including any conditional sale or other title retention
agreement, any lease in the nature thereof, any option or other agreement to
sell or give a security interest in and any filing of or agreement to give any
financing statement under the Uniform Commercial Code (or equivalent statutes)
of any jurisdiction).


 


“LGP” is defined in Section 8.6.


 


“Management Employment Contract” shall mean the
agreement dated as of November 13, 1998 by and among DFG, the Company and
Jeffrey Weiss..


 


14

















 


“Management Options” shall mean the options to
purchase shares of Class A Common Stock of certain members of management of the
Company.


 


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


 


“Material” means material in relation to the
business, operations, affairs, financial condition, properties, assets, results
of operations or prospects of the Company and its Subsidiaries, taken as a
whole.


 


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


 


“Material Contracts” means any agreements,
contracts or arrangements between the Company or its Subsidiaries, on the one
hand, and any third parties on the other that are Material.


 


“Maturity”, when used with respect to any Note,
means the date on which the principal, Default Amount of such Note becomes due
and payable as therein or herein provided, whether at the Stated Maturity or by
declaration of acceleration, call for redemption or otherwise (including in
connection with any offer to purchase that this Agreement requires the Company
to make).


 


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


 


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


 


“Net Proceeds” means the aggregate cash
proceeds received by the Company or any of its Subsidiaries in respect of any
Asset Sale (including, without limitation, any cash received upon the sale or
other disposition of any non-cash consideration received in any Asset Sale),
net of the direct costs relating to such Asset Sale (including, without
limitation, legal, accounting and investment banking fees, and sales
commissions) and any relocation expenses incurred as a result thereof, taxes
paid or payable as a result thereof (after taking into account any available
tax credits or deductions and any tax sharing arrangements), amounts required
to be


 


15

















 


applied to the repayment of Indebtedness (other than revolving credit
Indebtedness under the Credit Agreement) secured by a Lien on the asset or
assets that were the subject of such Asset Sale and any reserve for adjustment
in respect of the sale price of such asset or assets established in accordance
with GAAP.


 


“New Documents” has the meaning specified in
Section 9.17.


 


“Non-Voting Observer” is defined in
Section 7.8(a).


 


“Notes” has the meaning specified in the eighth
recital.


 


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


 


“Offer Amount” is defined in
Section 7.9(a).


 


“Offer Period” is defined in
Section 7.9(a).


 


“Offering” means, collectively, any Exchange
Note Offering and any Private Offering.


 


“Offering Memorandum” means an Offering
Memorandum of the Company in form and substance satisfactory to the Purchasers
delivered to the Purchasers in connection with an Offering, including
amendments or supplements thereto, any exhibits thereto and the documents
incorporated therein, in the most recent form that has been prepared and
delivered by the Company to the Purchasers in connection with their
solicitation of offers to purchase Notes or Exchange Notes in connection with
such Offering.  Further, any reference
to the Offering Memorandum shall be deemed to refer to and include any
Additional Company Information furnished by the Company prior to the completion
of the distribution of the Notes or Exchange Notes in connection with any
Offering and any registration statement (if any) filed with the Commission
related to such Offering Memorandum. 
All references in this Agreement to financial statements and schedules
and other information which is “contained,” “included” or “stated” in the
Offering Memorandum (or other references of like import) shall be deemed to
mean and include all such financial statements and schedules and other
information which are incorporated by reference in the Offering Memorandum; and
all references in this Agreement to amendments or supplements to the Offering
Memorandum shall be deemed to mean and include the filing of any document under
the Exchange Act which is incorporated or deemed to be incorporated by reference
in the Offering Memorandum.


 


“outstanding”, when used with respect to the
Notes, means, as of the date of determination, all Notes theretofore executed
and delivered under this Agreement, except:


 


(i)            Notes theretofore
cancelled by the Company or delivered to the Company for cancellation;


 


(ii)           Notes for whose payment
or redemption money in the necessary amount has been theretofore set aside by
the Company with a third party in trust for the Holders


 


16

















 


of such Notes; provided, that if such Notes are to be
redeemed, notice of such redemption has been duly given as provided in this
Agreement; and


 


(iii)          Notes which have been
paid pursuant to Section 10.8 or in exchange for or in lieu of which other
Notes have been executed and delivered pursuant to this Agreement, other than
any such Notes in respect of which there shall have been presented to the
Company proof satisfactory to it that such Notes are held by a bona fide
purchaser in whose hands such Notes are valid obligations of the Company;


 


provided,
however, that in determining whether the Holders of the
requisite principal amount of the outstanding Notes have given any request,
demand, authorization, direction, notice, consent or waiver hereunder, Notes
owned by the Company or any other obligor upon the Notes or any Affiliate of
the Company or of such other obligor shall be disregarded and deemed not to be
outstanding.  Notes so owned which have
been pledged in good faith may be regarded as outstanding if the pledgee
establishes to the satisfaction of the Required Holders the pledgee’s right so
to act with respect to such Notes and that the pledgee is not the Company or
any other obligor upon the Notes or any Affiliate of the Company or of such
other obligor.


 


“Payment Default” is defined in
Section 11.1(f).


 


“Pension Plan” is defined in Section 4.12(b).


 


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


 


“Permitted Investments” means (i) any
Investment in the Company, DFG (as long as it is a Wholly Owned Subsidiary of
the Company) or a Wholly Owned Subsidiary of the Company and that is engaged in
the same or a similar line of business as the Company and its Subsidiaries were
engaged in on the date of this Agreement, (ii) any Investment in (v) cash, (w)
Cash Equivalents, (x) the Notes, (y) the Subordinated Notes or (z) the DFG
Senior Notes outstanding (in the case of this clause (z)) as of the date of
this Agreement, (iii) any Investment by the Company or any Subsidiary of the
Company in a Person, if as a result of such Investment (A) such Person becomes
a Wholly Owned Subsidiary of the Company that is engaged in the same or a
similar line of business as the Company and its Subsidiaries were engaged in on
the date of this Agreement or (B) such Person is merged, consolidated or
amalgamated with or into, or transfers or conveys substantially all of its
assets to, or is liquidated into, the Company or a Wholly Owned Subsidiary of
the Company (with the Company or such Wholly Owned Subsidiary being a surviving
entity) and that is engaged in the same or a similar line of business as the
Company and its Subsidiaries were engaged in on the date of this Agreement,
(iv) any Restricted Investment made as a result of the receipt of non-cash
consideration from an Asset Sale that was made pursuant to and in compliance
with the provisions of Section 8.5 hereof, (v) other Investments in any
Person (other than a Subsidiary of the Company) having an aggregate fair market
value (measured on the date each such Investment was made and without giving
effect to subsequent changes in value), when taken together with all other
Investments made pursuant to this clause (v) that are at the time
outstanding, not to exceed $3,000,000, (vi) any advances to employees of the
Company and its Subsidiaries in the ordinary course of


 


17

















 


business, (vii) any Investments received in settlement of bona fide
disputes or as distributions in bankruptcy, insolvency or similar proceedings
and (viii) any Investment resulting from the sale or other disposition, through
a public equity or income trust offering, of Equity Interests of a Canadian or
a U.K. Subsidiary of DFG (a “Disposed Entity”) solely by reason of DFG
retaining a portion of the Equity Interests of such Disposed Entity; provided, that after giving effect to any
such sale or disposition, (1) no Default or Event of Default shall have
occurred or be continuing, (2) the retained Equity Interests in the Disposed
Entity are entitled to the same pro rata distributions as, and are not
subordinated to, other Equity Interests in the Disposed Entity and (3) any Net
Proceeds from such sale or disposition are applied in accordance with the
provisions of Section 8.5 hereof (without regard to Section 8.5(b)(ii)).


 


“Permitted Liens” means (i) Liens securing
Indebtedness (A) under the Credit Agreement and (B) under the DFG Senior Notes,
in each case, that was permitted by the terms of this Agreement to be incurred,
(ii) Liens in favor of the Company, (iii) Liens on property of a Person
existing at the time such Person is merged into or consolidated with the
Company or any Subsidiary of the Company; provided, however, that such Liens
were in existence prior to the contemplation of such merger or consolidation
and do not extend to any assets other than those of the Person merged into or
consolidated with the Company, (iv) Liens on property existing at the time of
acquisition thereof by the Company or any Subsidiary of the Company; provided,
however,
that such Liens were in existence prior to the contemplation of such
acquisition, (v) Liens to secure the performance of statutory obligations,
surety or appeal bonds, performance bonds or other obligations of a like nature
incurred in the ordinary course of business, (vi) Liens securing Indebtedness
(including Capital Lease Obligations) permitted by clause (v) of Section 8.4(b)
hereof covering only the assets acquired with such Indebtedness and directly
related assets such as proceeds (including insurance proceeds), products,
replacements, substitutions and accessions thereto, (vii) Liens existing on the
date of this Agreement and replacement Liens that do not encumber additional
assets, unless such encumbrance is otherwise permitted; (viii) Liens for taxes,
assessments or governmental charges or claims that are not yet delinquent or
that are being contested in good faith by appropriate proceedings promptly
instituted and diligently concluded; provided, however, that any reserve or
other appropriate provision as shall be required in conformity with GAAP shall
have been made therefor, (ix) Liens incurred in the ordinary course of business
of the Company or any Subsidiary of the Company with respect to obligations
that do not exceed $5,000,000 at any one time outstanding and that (A) are not
incurred in connection with the borrowing of money or the obtaining of advances
or credit (other than trade credit in the ordinary course of business) and (B)
do not in the aggregate materially detract from the value of the property or
materially impair the use thereof in the operation of business by the Company
or such Subsidiary, (x) Liens securing Permitted Refinancing Indebtedness; provided,
however,
that the Company was permitted to incur Liens with respect to the Indebtedness
so refinanced, (xi) statutory and common law Liens of carriers, warehousemen,
mechanics, suppliers, materialmen, repairmen or other similar Liens arising in
the ordinary course of business with respect to amounts that are not yet
delinquent or that are being contested in good faith by appropriate proceedings
promptly instituted and diligently concluded, provided that any reserve or other
appropriate provision as shall be required in conformity with GAAP shall have
been made therefor, (xii) Liens arising from filings of Uniform Commercial Code
financing statements or similar documents regarding leases or otherwise for
precautionary purposes relating to arrangements not constituting Indebtedness
and (xiii) Liens on assets of a Receivables Subsidiary arising in connection
with a Qualified Receivables Transaction.


 


18

















 


“Permitted Refinancing Indebtedness” means any
Indebtedness of the Company or any of its Subsidiaries issued in exchange for,
or the net proceeds of which are used to extend, refinance, renew, replace,
defease or refund other Indebtedness of the Company or any of its Subsidiaries
(other than the Indebtedness under the Credit Agreement and the Senior Notes); provided,
however,
that (i) the principal amount (or accreted value, if applicable) of such
Permitted Refinancing Indebtedness does not exceed the principal amount plus
accrued interest (or accreted value, if applicable) of the Indebtedness so
extended, refinanced, renewed, replaced, defeased or refunded (plus the amount
of reasonable expenses incurred in connection therewith), (ii) such Permitted
Refinancing Indebtedness has a final maturity date later than the final
maturity date of, and has a Weighted Average Life to Maturity equal to or
greater than the Weighted Average Life to Maturity of, the Indebtedness being
extended, refinanced, renewed, replaced, defeased or refunded, (iii) if the
Indebtedness being extended, refinanced, renewed, replaced, defeased or
refunded is subordinated in right of payment to the Notes, such Permitted
Refinancing Indebtedness has a final maturity date later than the final
maturity date of, and is subordinated in right of payment to, the Notes on
terms at least as favorable to the Holders of Notes as those contained in the
documentation governing the Indebtedness being extended, refinanced, renewed,
replaced, defeased or refunded, (iv) such Indebtedness is incurred either
by the Company or by the Subsidiary which is the obligor on the Indebtedness
being extended, refinanced, renewed, replaced, defeased or refunded and
(v) if the Indebtedness being extended, refinanced, renewed, replaced, defeased
or refunded was incurred in reliance upon clause (vi) or (vii) of
Section 8.4(b), such Indebtedness also meets the requirements of such
clause.


 


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


 


“Plan” is defined in Section 4.12(a).


 


“PORTAL Market” is defined in Section 9.14.


 


“Predecessor Note” of any particular Note means
every previous Note evidencing all or a portion of the same debt as that
evidenced by such particular Note.


 


“principal amount” means, (i) when used with
respect to any particular Note, the principal amount of such Note at its Stated
Maturity, including Capitalized Interest and Special Interest, if any, added
thereto at or prior to such time, and (ii) when used with respect to any other
Indebtedness, the then outstanding principal amount of such Indebtedness.


 


“Principals” means LGP, any person that is its
general partner as of the date of this Agreement or any affiliated investment
fund managed by it.


 


“Private Offering” is any offering by any of
the Purchasers of some or all of the Notes, Holdings Note Shares or
Subscription Shares without registration under the Securities Act.


 


19

















 


“property” means any interest in any kind of
property or asset, whether real, personal or mixed, or tangible or intangible.


 


“Purchase Date” is defined in
Section 7.9(a).


 


“Purchase Price” is defined in Section 2.2.


 


“Purchasers” is defined in the preamble to this
Agreement.


 


“Purchaser Indemnified Person” is defined in
Section 13.2(a).


 


“Put Option” is defined in the ninth recital to
this Agreement.


 


“Qualified Institutional Buyer” means any
Person that is a “qualified institutional buyer” within the meaning of Rule
144A.


 


“Qualified Receivables Transaction” means any
transaction or series of transactions entered into by DFG or any of its
Subsidiaries pursuant to which DFG or any of its Subsidiaries sells, conveys or
otherwise transfers to (i) a Receivables Subsidiary (in the case of a transfer
by DFG or any of its Subsidiaries) or (ii) any other Person (in the case of a
transfer by a Receivables Subsidiary), or grants a security interest in, any
accounts receivable (whether now existing or arising in the future) of DFG or
any of its Subsidiaries and any related assets, including all collateral
securing such accounts receivable, all contracts and Guarantees or other
obligations in respect of such accounts receivable, proceeds of such accounts
receivable and other assets which are customarily transferred or in respect of
which security interests are customarily granted in connection with asset
securitization transactions involving accounts receivable.


 


“Quarterly Meeting” is defined in Section
7.8(e).


 


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


 


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


 


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


 


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


 


20

















 


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


 


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


 


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


 


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


 


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


 


“Redemption Price”, when used with respect to
any Note to be redeemed, means the price at which it is to be redeemed pursuant
to this Agreement.


 


“Registration Default” is defined in Exhibit
A hereto.


 


“Regular Record Date” is defined in Exhibit
A hereto.


 


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


 


“Regulation U” means Regulation U of the
Board of Governors of the Federal Reserve System as from time to time in effect
and any successor to all or a portion thereof.


 


“Related Board” means the Board, the Board of
Directors of DFG and the Board of Directors of each Subsidiary of the Company
and DFG.


 


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


 


“Replacement Notes” is defined in Section 9.17.


 


21

















 


“Request Date” is defined in Exhibit A
hereto.


 


“Required Holders” means Holders holding more
than 50% of the aggregate principal amount of the outstanding Notes and
Exchange Notes (exclusive of Notes then owned directly or indirectly by the
Company or any of its Subsidiaries or Affiliates).


 


“Resale Registration Statement” is defined in Exhibit A
hereto.


 


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


 


“Restricted Payments” is defined in
Section 8.2.


 


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


 


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


 


“sale” is defined in Section 10.7(a).


 


“Securities” means the Notes, the Holdings Note
Shares and the Subscription Shares.


 


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


 


“Security Document” means this Agreement and
all other instruments and agreements now or at any time hereafter securing the
whole or part of the Obligations.


 


“Security Register” has the meaning given to
such term in Section 10.6(a).


 


“Selling Purchaser” is defined in
Section 9.2(b).


 


“Shelf Registration Statement” is defined in
the Exchange and Registration Rights Agreement.


 


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


 


“Solvent” means, with respect to any Person as
of the date of any determination, that on such date (i) such Person is able to
pay its debts and other liabilities, contingent obligations and other
commitments as they mature in the normal course of business, (ii) such Person
does not intend to, and does not believe that it will, incur debts or
liabilities beyond such Person’s ability to pay as such debts and liabilities
mature and (iii) such Person is not engaged in a business or a transaction, and
is not about to engage in a business or a transaction, for which such Person’s
property would constitute unreasonably small capital after giving due
consideration to current and anticipated future capital requirements and
current and anticipated future business conduct and the prevailing practice in
the industry in which such Person is


 


22

















 


engaged.  In computing the
amount of contingent liabilities at any time, such liabilities shall be
computed as the amount which, in light of the facts and circumstances existing
at such time, represents the amount that can reasonably be expected to become
an actual or matured liability.


 


“Special Interest” is defined in Exhibit A
hereto.


 


“Special Mandatory Redemption” is defined in Exhibit A
hereto.


 


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


 


“Stockholders Agreement” is defined in the
ninth recital to this Agreement.


 


“Stone Street” is defined in the preamble to
this Agreement.


 


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


 


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


 


“Subordinated Note Exchange Agreement” is
defined in the fourteenth recital to this Agreement.


 


“Subordinated Notes” is defined in the
fourteenth recital to this Agreement.


 


“Subscription Agreement” is defined in the
second recital to this Agreement.


 


“Subscription Shares” is defined in the second
recital to this Agreement..


 


“Subsequent Purchaser” is defined in Section
4.13(a).


 


“Subsidiary” means, with respect to any Person,
(i) any corporation, association or other business entity of which more than
50% of the total voting power of shares of Capital Stock entitled (without
regard to the occurrence of any contingency) to vote in the election of
directors, managers or trustees thereof is at the time owned or controlled,
directly or indirectly, by such Person or one or more of the other Subsidiaries
of that Person (or a combination thereof) and (ii) any partnership (A) the sole
general partner or the managing general partner of which is


 


23

















 


such Person or a Subsidiary of such Person or (B) the only general
partners of which are such Person or of one or more Subsidiaries of such Person
(or any combination thereof).


 


“Successor Company” is defined in
Section 8.11.


 


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


 


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


 


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


 


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


 


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


 


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


 


“United States” shall have the meaning assigned
to such term in Regulation S.


 


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


 


“Wells Fargo” is defined in the sixth recital
to this Agreement.


 


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


 


24

















 


1.2.          Computation of Time Periods.  For purposes of computation of periods of
time hereunder, the word “from” means “from and including” and the words “to”
and “until” each mean “to but excluding.”


 


1.3.          Accounting Terms.  Accounting terms used but not otherwise defined herein shall have
the meanings provided, and be construed in accordance with, GAAP.


 


SECTION 2.


 


AUTHORIZATION AND ISSUANCE OF THE NOTES


 


2.1.          Authorization of Issue.  On or prior to the execution and delivery of
this Agreement, the Company will authorize the issue and sale of the
Notes.  The Notes shall be in the form
specified in this Agreement.


 


2.2.          Exchange of the Existing Holdings
Notes for the Notes.  Subject to
the terms and conditions of this Agreement, the Company will issue and deliver
to the Purchasers, and the Purchasers will acquire from the Company, at the
Closing provided for in Section 2.3, the Notes and the Financing Payment in
exchange for the Accreted Value of the then outstanding Existing Holdings Notes
in the amount equal to the aggregate Accreted Value of the Existing Holdings
Notes set forth on Schedule A. 
Each Purchaser shall, in exchange for the surrender by such Purchaser of
the portion of the Accreted Value of the Existing Holdings Notes set forth
opposite such Purchaser’s name on Schedule A, receive the aggregate
principal amount of the Notes and the Financing Payment set forth opposite such
Purchaser’s name on Schedule A. 
The obligations of the Purchasers hereunder are several and not joint
and no Purchaser shall have any liability to any Person for the performance or
non-performance by any other Purchaser hereunder.


 


2.3.          Closing


 


(a)           The
exchange of a portion of Existing Holdings Notes for the Notes shall occur at
the offices of Irell & Manella LLP, 1800 Avenue of the Stars, Suite
900, Los Angeles, California 90067, at 10:00 a.m., California time, at a
closing (the “Closing”) on November 13, 2003, or on such other Business
Day thereafter as may be agreed upon by the Company and the GSMP Purchasers (in
either case, the date and time of the Closing is referred to herein as the “Closing
Date”).  At the Closing, (i) the
Company will deliver to each Purchaser certificates for the Notes to be
acquired by such Purchaser on the Closing Date, in such denominations (which
will be a multiple of $1,000 principal amount) as such Purchaser may request,
dated the Closing Date and registered in such Purchaser’s name and (ii) the
Company will pay to each Purchaser or its order such Purchaser’s share of the
Financing Payment by a wire transfer of immediately available funds to (x) in
the case of the GSMP Purchasers, to a bank account or accounts of such
Purchaser set forth on Schedule A, (y) in the case of Ares I, to a bank
account of Ares Management, L.P. set forth on Schedule A and (z) in the
case of Ares II, to a bank account of Ares Management II, L.P. set forth on Schedule
A or, in any such case, to such other bank account or accounts as each such
Purchaser may request at least one Business Day prior to the Closing Date, all
of the above against the delivery by such Purchaser to the Company of the
relevant portion of Existing Holdings Notes held by such Purchaser.


 


25

















 


(b)           If
at the Closing the Company shall fail to deliver to the Purchasers the
certificates evidencing the Notes as provided in Section 2.3(a), or any of
the conditions specified in Section 3 shall not have been fulfilled to the
Purchasers’ satisfaction, then each Purchaser shall, at its election, be
relieved of all further obligations under this Agreement, without thereby
waiving any rights such Purchaser may have by reason of such failure or such
nonfulfillment.


 


SECTION 3.


 


CONDITIONS TO CLOSING


 


Each Purchaser’s obligation to exchange the Existing
Holdings Notes for the Notes to be acquired by it at the Closing is subject to
the satisfaction or waiver by it prior to or at the Closing of each of the
conditions specified below in this Section 3:


 


3.1.          Representations and Warranties.  Each of the representations and warranties
of the Company in this Agreement and in each of the other Transaction Documents
shall be true and correct (in the case of such other Transaction Documents
only, in all material respects) when made and on or as of the Closing Date as
if made on and as of the Closing Date (unless stated to relate to a specific
earlier date, in which case such representations and warranties shall be true
and correct as of such earlier date).


 


3.2.          Performance; No Default under Other
Agreements.  The Company and its
Subsidiaries, to the extent parties hereto or thereto, shall have performed and
complied in all material respects with all agreements and conditions contained
in this Agreement and each of the other Financing Documents and Credit
Documents required to be performed or complied with by it prior to or at the
Closing, and after giving effect to the issue and exchange of the Notes and the
other Transactions (and the other Transaction Documents) no Default or Event of
Default shall have occurred and be continuing and no default or event of
default shall have occurred and be continuing under any of the other Financing
Documents or under the Credit Documents.


 


3.3.          Compliance Certificates


 


(a)           Officer’s
Certificate.  The Company shall have
delivered to such Purchaser an Officer’s Certificate, dated the Closing Date,
in the form of Exhibit 3.3(a) hereto, certifying that the conditions
specified in Sections 3.1, 3.2, 3.5, 3.6, 3.7, 3.9, 3.12 and 3.13 have been
fulfilled.


 


(b)           Secretary’s
Certificate.  The Company shall have
delivered to such Purchaser a certificate in the form of Exhibit 3.3(b)
hereto certifying as to the Company’s certificate of incorporation, bylaws and
resolutions attached hereto, the incumbency and signatures of certain officers
of the Company, and other corporate proceedings of the Company relating to the
authorization, execution and delivery of the Notes, this Agreement and the
other Transaction Documents to which the Company is a party.


 


3.4.          Opinions of Counsel.  Such Purchaser shall have received opinions
in form and substance satisfactory to it, dated the date of the Closing, from
Irell & Manella LLP, counsel for the Company, substantially in the form set
forth in Exhibit 3.4 and as to such other matters as such Purchaser may
reasonably request.


 


26

















 


3.5.          Changes in Corporate Structure.  Neither the Company nor any of its
Subsidiaries shall have changed their respective jurisdiction of incorporation
or been a party to any merger or consolidation or succeeded to all or any
substantial part of the liabilities of any other Person at any time following
the Audit Date and there shall have occurred no event which constitutes a
Change of Control of the Company and the Company shall not have entered into
any agreement or understanding which, if consummated, would constitute a Change
of Control of the Company.


 


3.6.          Refinancing.
 All of the Existing DFG Notes, all
indebtedness under the Existing Credit Agreement outstanding immediately prior
to the date hereof and, to the extent the net proceeds of the DFG Senior Notes
exceed $200,000,000, the Accreted Value of the Existing Holdings Notes
outstanding immediately prior to the date hereof, in the amount of such excess
shall have been redeemed out of the proceeds of the issuance of DFG Senior
Notes and borrowings under the Credit Agreement.


 


3.7.          DFG Senior Notes Documents; Credit
Agreement; Subordinated Notes.


 


(a)           The Company shall have
delivered to the Purchasers true and correct copies of the DFG Senior Notes
Documents and the Credit Documents and each of such documents (i) shall be
in the form satisfactory to each Purchaser and such Purchaser’s special
counsel, (ii) shall have been duly authorized, executed and delivered by the
parties thereto, (iii) shall constitute a valid, binding and enforceable
obligation of the parties thereto and shall be in full force and effect and
(iv) no default on the part of any party thereto shall exist thereunder.  The DFG Senior Notes shall have been issued
and outstanding in accordance with the DFG Senior Note Documents in the
aggregate principal amount not to exceed $220,000,000.  The aggregate borrowings as of the Closing
Date under the Credit Agreement (exclusive of any outstanding letters of credit
thereunder) shall not exceed $20,000,000. 
The Purchasers have acknowledged that they have reviewed the final draft
of the DFG Senior Notes offering circular and the draft dated of November 10,
2003 of the Credit Agreement and that the draft of the “description of the
notes” in such offering circular and the draft of the Credit Agreement are
satisfactory to the Purchasers.


 


(b)           The Subordinated Notes
(i) shall be in the form satisfactory to each Purchaser and such
Purchaser’s special counsel, (ii) shall have been duly authorized, executed and
delivered by the parties thereto, (iii) shall constitute a valid, binding and
enforceable obligation of the parties thereto and shall be in full force and
effect and (iv) no default on the part of any party thereto shall exist
thereunder.  The Subordinated Notes
shall have been issued and outstanding in accordance with the Subordinated Note
Documents in the aggregate principal amount not to exceed $49,351,422.48.


 


3.8.          Material Adverse Effect.  No event or events shall have occurred
which, individually or in the aggregate, have had or would reasonably be
expected to have a Material Adverse Effect.


 


3.9.          Financial Information.  Such Purchaser shall have received a pro
forma consolidated balance sheet for the Company and its Subsidiaries as of
September 30, 2003 after giving effect to the Transactions, including the
issuance of the Notes, the DFG Senior Notes and


 


27

















 


the Subordinated Notes and the borrowings under the Credit Agreement
and the use of the proceeds thereof, which have been certified by the Chief
Financial Officer of the Company and which are in form and substance
satisfactory to such Purchaser.


 


3.10.        Proceedings and Documents.  All corporate and other proceedings in
connection with the transactions contemplated by this Agreement and the
other Transaction Documents, and all documents and instruments incident to such
transactions and the terms thereof, shall be reasonably satisfactory to such
Purchaser and such Purchaser’s special counsel, and such Purchaser and the
Purchaser’s special counsel shall have received all such counterpart originals
or certified or other copies of such documents as it or they may reasonably
request.


 


3.11.        Exchange Permitted By Applicable Law,
etc.  On the Closing Date, such
Purchaser’s exchange of the Existing Holdings Notes for the Notes shall (a) be
permitted by the laws and regulations of each jurisdiction to which it is
subject, (b) not violate any Applicable Law (including, without
limitation, Regulation U, T or X of the Board of Governors of the Federal
Reserve System) and (c) not subject such Purchaser to any tax, penalty or
liability under or pursuant to any Applicable Law, which Applicable Law was not
in effect on the date hereof.


 


3.12.        Transaction Documents in Force and
Effect; Information.


 


(a)           Transaction
Documents.  The Purchasers shall
have received true and correct copies of all Transaction Documents and such
documents (i) shall have been duly executed and delivered by the parties
thereto, (ii) shall be in form and substance reasonably satisfactory to the
Purchasers and (iii) shall be valid and binding obligations of the parties
thereto enforceable against each of them in accordance with its respective
terms, subject to the Enforceability Exceptions.


 


(b)           Accuracy of
Information.  All information
furnished by the Company and its representatives to the Purchasers with respect
to the business and financial condition of the Company and its Subsidiaries
shall be accurate and complete in all material respects.


 


3.13.        No Violation; No Legal Constraints;
Consents, Authorizations and Filings, etc.


 


(a)           The consummation by the
Company and its Subsidiaries of the Transactions shall not contravene, violate
or conflict with any Applicable Law, except for violations which, individually
or in the aggregate, do not, and would not reasonably be expected to, have a
Material Adverse Effect.


 


(b)           All consents,
authorizations and filings, if any, required in connection with the execution,
delivery and performance by each of the Company and its Subsidiaries, of the
Transaction Documents to which it is a party shall have been obtained or made
and shall be in full force and effect, except for such consents, authorizations
and filings the failure of which to obtain or make, individually or in the
aggregate, do not, and would not reasonably be expected to, have a Material
Adverse Effect.


 


(c)           There shall be no
inquiry, injunction, restraining order, action, suit or proceeding pending or
entered or any statute or rule proposed, enacted or promulgated by any


 


28

















 


Governmental Authority or any other Person which, in the opinion of the
Purchasers, (i) individually or in the aggregate, has or would reasonably be
expected to have a Material Adverse Effect or which seeks to enjoin or seek
damages against the Company or its Subsidiaries or any of the Purchasers as a
result of the Transactions or the issuance of the Notes, (ii) relates to any
Transactions and has or will have a material adverse effect on any Purchaser,
(iii) alleges liability on the part of any Purchaser in connection with this
Agreement, any other Transaction Documents or the transactions contemplated
hereby or thereby or (iv) would bar the issuance of the Notes or the use of the
proceeds thereof in accordance with the terms of this Agreement.


 


3.14.        Interest Payment; Payment of Expense.  At the Closing, each Purchaser and such
Purchaser’s special counsel shall have received from the Company all other fees
required to be paid, and, in accordance with Section 13.1 hereto, all
reasonable costs and expenses for which invoices have been presented.


 


SECTION 4.


 


REPRESENTATIONS AND WARRANTIES OF THE COMPANY


 


The Company represents
and warrants to the Purchasers (both before and after giving pro forma effect
to the transactions contemplated by this Agreement and the other Transaction
Documents, and the issuance of the Notes and the Subordinated Notes, and in
each case the application of the proceeds thereof) that:


 


4.1.          Due Incorporation; Power and
Authority.  Each of the Company
and each of its Subsidiaries (a) is a corporation duly incorporated, validly
existing and in good standing under the laws of its jurisdiction of
incorporation, (b) is duly qualified as a foreign corporation to transact
business and is in good standing in each jurisdiction in which such
qualification is required, other than any failures to so qualify or to be in
good standing which, individually or in the aggregate, have not had and would
not be reasonably expected to have a Material Adverse Effect, (c) has full
corporate power and authority to own, lease and operate its properties and to
conduct its businesses as they are currently conducted and (d) has full
corporate power and authority to enter into and perform its obligations under
each of the Transaction Documents to which it is a party.


 


4.2.          Capitalization.  As of the date of this Agreement,
(a) the authorized Capital Stock of the Company will consist solely of
50,000 shares of Class A Common Stock and 50,000 shares of Class B Common
Stock, (b) 19,758.1589 shares of Class A Common Stock (with an additional
972 shares reserved for issuance of Management Options) and no shares of Class
B Common Stock will be issued and outstanding, (c) 106.7071 shares of
Class A Common Stock will be held by the Company in its treasury or by the
Company’s Subsidiaries and (d) the ownership of Class A Common Stock
on a primary and fully diluted basis will be as set forth in Schedule B
hereto.  All the issued and outstanding
shares of Class A Common Stock and Class B Common Stock have been duly
authorized and are validly issued, fully paid and nonassessable and are free of
preemptive rights, except as set forth in the Stockholders Agreement and the
Management Employment Contract.  Other
than the Management Options, there are no securities of the Company or any of
its Subsidiaries that are convertible into or exchangeable for shares of any
Capital Stock of the Company or any of its Subsidiaries, and no options,
warrants, calls,


 


29

















 


subscriptions, convertible securities, or other rights, agreements or
commitments which obligate the Company or any of its Subsidiaries to issue,
transfer or sell any shares of Capital Stock of, or other interests in, the
Company or any of its Subsidiaries. 
Except as set forth in the Stockholders Agreement and the Management
Employment Contract, there are no outstanding obligations of the Company or any
of its Subsidiaries to repurchase, redeem or otherwise acquire any shares of
Capital Stock of the Company or any of its Subsidiaries and, except for the
Management Options, neither the Company nor any of its Subsidiaries has any
awards or options outstanding under any stock option plans or agreements or any
other outstanding stock-related awards. 
After the Closing Date, neither the Company nor any of its Subsidiaries
will have any obligation to issue, transfer or sell any shares of Capital Stock
of the Company or its Subsidiaries, other than pursuant to the Management
Options.  Other than the Stockholders
Agreement, there are no voting trusts or other agreements or understandings to
which the Company or any of its Subsidiaries is a party with respect to the
holding, voting or disposing of Capital Stock of the Company or any of its
Subsidiaries.  As of the date hereof,
neither the Company nor any of its Subsidiaries has any outstanding bonds,
debentures, notes or other obligations or other securities (other than the
Class A Common Stock, Class B Common Stock and Management Options)
that entitle the holders thereof to vote with the stockholders of the Company
or any of its Subsidiaries on any matter or which are convertible into or exercisable
for securities having such a right to vote.


 


4.3.          Subsidiaries.  Schedule B and Schedule 4.3
correctly state (a) the name of each of the Company’s Subsidiaries and any
other Person whose Equity Interests are owned, directly or indirectly, by the
Company (each, an “Equity Investee”), (b) the name of each holder
of each class of outstanding Capital Stock or other securities of the Company
or any of its Subsidiaries or any Equity Investee and the nature and number of
such securities held by such holder and (c) the number of authorized, issued
and treasury shares of each Subsidiary of the Company and each Equity
Investee.  The Company does not own or
control, directly or indirectly, any Capital Stock or other interest or
investment (whether equity or debt) in any Person other than the Capital Stock
of its Subsidiaries and Equity Investees listed on Schedule 4.3.  Each issued and outstanding share of Capital
Stock of each Subsidiary and Equity Investees of the Company (a) has been duly
authorized and validly issued and is fully paid and nonassessable and free of
preemptive rights and (b) except for any Equity Investees of any Equity
Investee not owned directly or indirectly by the Company as shown on Schedule
4.3 is owned by the Company, directly or through Subsidiaries, free and
clear of any security interest, mortgage, pledge, lien, encumbrance or claim,
other than the liens established under the Credit Documents.


 


4.4.          Due
Authorization, Execution and Delivery


 


(a)           Agreement.  This Agreement has been duly authorized,
executed and delivered by the Company and constitutes a valid and legally
binding obligation of the Company, enforceable against it in accordance with
its terms subject to the Enforceability Exceptions.


 


(b)           Notes and the
Exchange Notes.  The Notes to be
purchased by the Purchasers from the Company are in the form contemplated by
this Agreement, have been duly authorized for issuance and sale pursuant to
this Agreement and, when issued and delivered by the Company on the Closing
Date as provided herein, will have been duly executed, issued and


 


30

















 


delivered by the Company, and will constitute valid and legally binding
obligations of the Company, enforceable against it in accordance with their terms
subject to the Enforceability Exceptions. 
If and when the Exchange Notes are issued pursuant to the Exchange and
Registration Rights Agreement and this Agreement in accordance with the terms
thereof and hereof, the Exchange Notes will have been duly and validly
authorized for issuance by the Company, will have been duly executed, issued
and delivered by the Company, and will constitute valid and legally binding
obligations of the Company, enforceable against it in accordance with their
terms subject to the Enforceability Exceptions.


 


(c)           Exchange and
Registration Rights Agreement.  The
Exchange and Registration Rights Agreement has been duly authorized, executed
and delivered by the Company and constitutes a valid and binding obligation of
the Company, enforceable against it in accordance with its terms, subject to
the Enforceability Exceptions.


 


(d)           Stockholders
Agreement.  The Stockholders
Agreement has been duly authorized, executed and delivered by the Company and
constitutes a valid and binding obligation of the Company, enforceable against
it in accordance with its terms, subject to the Enforceability Exceptions.


 


(e)           Other Transaction Documents.  Each
Transaction Document (other than those referred to in paragraphs (a)
through (d) of this Section 4.4) to which the Company or any of its
Subsidiaries is a party (each such party, a “Company Party”) (i) has
been duly authorized, executed and delivered by each Company Party and (ii)
constitutes a valid and legally binding obligation of each Company Party,
enforceable against such Company Party in accordance with its terms, subject to
the Enforceability Exceptions.


 


4.5.          Non-Contravention; Authorizations
and Approvals.  Neither the
Company nor any of its Subsidiaries is in violation of its certificate of
incorporation or bylaws (or comparable constituent or governing documents) or
is in default (or, with the giving of notice, lapse of time or both, would be
in default) under any note, bond, mortgage, indenture, deed of trust, loan or
credit agreement, license, franchise, Permit, lease, contract or other
agreement, instrument, commitment or obligation to which the Company or any of
its Subsidiaries is a party or by which the Company or any of its Subsidiaries
or any of their respective properties or assets is bound (including, without
limitation, the Credit Agreement), or under which the Company or any of its
Subsidiaries or any of their respective properties or assets is entitled to a
benefit (each, a “Contract”), except for any such defaults that,
individually or in the aggregate, have not had and would not reasonably be
expected to have a Material Adverse Effect. 
None of (a) the execution and delivery by the Company or any of its
Subsidiaries of any of the Transaction Documents to which they are a party, (b) the
performance by any of them of their respective obligations thereunder, (c) the
consummation of the transactions contemplated thereby or (d) the issuance
and delivery of the Notes hereunder will (i) violate, conflict with or
result in a breach of any provisions of the certificate of incorporation or
bylaws (or comparable constituent or governing documents) of the Company or any
of its Subsidiaries, (ii) violate, conflict with, result in a breach of any
provision of, constitute a default (or an event which, with notice, lapse of
time or both, would constitute a default) under, result in the termination or
in a right of termination of, accelerate the performance required by or benefit
obtainable under, result in the triggering of any payment or other obligations
(including any repurchase or repayment obligations) pursuant to,


 


31

















 


result in the creation of any Lien upon any of the properties of the
Company or any of its Subsidiaries under, or result in there being declared
void, voidable, subject to withdrawal, or without further binding effect, any
of the terms, conditions or provisions of any Contract, except for any such
violations, conflicts, breaches, defaults, accelerations, terminations or other
matters which, individually or in the aggregate, have not had and would not
reasonably be expected to have a Material Adverse Effect, (iii) require any
consent, approval or authorization of, or declaration, filing or registration
with, any Governmental Authority, except for those consents, approvals,
authorizations, declarations, filings or registrations which have been obtained
or made or the failure of which to obtain or make, individually or in the
aggregate, have not had and would not be reasonably expected to have a Material
Adverse Effect or (iv) violate any Applicable Laws applicable to the Company,
any of its Subsidiaries or any of their respective property or assets, except
for violations which, individually or in the aggregate, have not had and would
not reasonably be expected to have a Material Adverse Effect.


 


4.6.          DFG Financial Statements; DFG Reports


 


(a)           DFG Financial
Statements.  The Company has
delivered to the Purchasers (collectively, the “DFG Financial Statements”)
(i) complete and correct copies of the consolidated balance sheets of DFG and
its Subsidiaries as of June 30, 2001, 2002 and 2003 and the related
consolidated statements of operations, stockholders’ equity and cash flows for
the years then ended, including the footnotes thereto, certified by DFG’s
independent certified public accountants, (ii) complete and correct copies of
the unaudited consolidated balance sheets of DFG and its Subsidiaries as of
September 30, 2003 and the related unaudited consolidated statements of
operations, stockholders’ equity and cash flows for the quarter then ended and
(iii) a complete and correct copy of the consolidated balance sheet of DFG
and its Subsidiaries as of September 30, 2003 and the related unaudited
consolidated statement of operations for the month then ended.  Each of the consolidated balance sheets
contained in DFG Financial Statements fairly present the consolidated financial
position of DFG and its Subsidiaries as of its date and each of the consolidated
statements of operations, stockholders’ equity and cash flows included in DFG
Financial Statements fairly presents the consolidated results of operations and
income, retained earnings and stockholders’ equity or cash flows, as the case
may be, of DFG and its Subsidiaries for the periods to which they relate
(subject, in the case of any unaudited interim financial statements, to normal
year-end adjustments that will not be material in amount or effect), in each
case in accordance with GAAP applied on a consistent basis during the periods
involved, except as noted therein.  The
Company has no assets or liabilities as of the date of this Agreement and since
the Audit Date has incurred no expenses (in each case whether or not the same
would be required to be reflected in unconsolidated financial statements
prepared in accordance with GAAP) other than the shares of Capital Stock of DFG
that it owns on the date hereof, the Management Employment Contract, the
obligations under the Transaction Documents, and any such liabilities and
expenses that do not exceed $50,000 in the aggregate.  All projections provided by the Company to the Purchasers in
connection with the Transactions have been prepared in good faith based on
assumptions believed by management of the Company to be reasonable.


 


(b)           DFG Reports.  The Company has delivered to the Purchaser
each registration statement, report or information statement prepared by DFG
since June 30, 2003 (the “Audit Date”), including (i) DFG’s Annual
Report on Form 10-K for the year ended June 30,


 


32

















 


2003 and (ii) DFG’s Quarterly Report on Form 10-Q for the
three months period ended September 30, 2003, each in the form (including
exhibits, annexes and any amendments thereto) filed with the Commission
(collectively, including any such reports filed subsequent to the date hereof
and as amended, the “DFG Reports”). 
As of their respective dates, (or, if amended, as of the date of such
amendment) the DFG Reports did not, and any DFG Reports filed with the
Commission subsequent to the date hereof will not, contain any untrue statement
of a material fact or omit to state a material fact required to be stated
therein or necessary to make the statements made therein, in light of the
circumstances in which they were made, not misleading.  Each of the consolidated balance sheets
included in or incorporated by reference into the DFG Reports (including the
related notes and schedules) fairly presents, or will fairly present, the
consolidated financial position of DFG and its subsidiaries as of its date and
each of the consolidated statements of operations, stockholders’ equity or cash
flows included in or incorporated by reference into the DFG Reports (including
any related notes and schedules) fairly presents, or will fairly present, the
results of operations and income, retained earnings and stockholders’ equity or
cash flows, as the case may be, of DFG and its Subsidiaries for the periods to
which they relate (subject, in the case of unaudited statements, to normal
year-end audit adjustments that will not be material in amount or effect), in
each case in accordance with GAAP consistently applied during the periods
involved, except as may be noted therein.


 


4.7.          Absence of Undisclosed Liabilities
or Events


 


(a)           Except for the amounts
disclosed to, and approved in writing by, the GSMP Purchasers pursuant to
Section 4.25 hereof, set forth in Section 4.6 hereof, and the liabilities and
obligations arising under the Financing Document or the Credit Documents,
neither the Company nor any of its Subsidiaries has any liabilities or
obligations, whether accrued, contingent or otherwise, except (i) for
liabilities and obligations in the respective amounts reflected or reserved
against in the consolidated balance sheet and related footnotes as of the Audit
Date included in the DFG Financial Statements, (ii) borrowings under the
Company’s Existing Credit Agreement, which will be paid off in their entirety
and terminated as of the Closing Date, (iii) indebtedness under the Existing
Holdings Notes, which will be paid off in its entirety and cancelled as of the
Closing Date or (iv) liabilities and obligations incurred in the ordinary
course of business since the Audit Date which, individually or in the
aggregate, have not had and would not reasonably be expected to have a Material
Adverse Effect.


 


(b)           Since the Audit Date
there has been no change in the financial condition, results of operations,
business, properties or prospects of the Company or its Subsidiaries except for
changes that, individually or in the aggregate, have not had or would not
reasonably be expected to have a Material Adverse Effect.  There are no facts known to the Company that
have had or would reasonably be expected to have a Material Adverse Effect that
has not been set forth herein or in the Disclosure Schedule.


 


4.8.          No Actions or Proceedings.  Except as set forth in Schedule 4.8, there
are no legal or governmental actions, suits or proceedings pending or, to the
best of the Company’s knowledge, threatened against or affecting the Company,
any of its Subsidiaries, any of their directors or officers (in their
capacities as such) or any of their property or assets which, individually or
in the aggregate, has had or would reasonably be expected to have a Material
Adverse Effect or to prohibit, delay or materially restrict the consummation of
any of the


 


33

















 


transactions contemplated by the Transaction Documents.  To the knowledge of the Company, no
Governmental Authority has notified the Company of an intention to conduct any
audit, investigation or other review with respect to the Company or any of its
Subsidiaries, except for those investigations or reviews which, individually or
in the aggregate, have not had or would not be reasonably expected to have a
Material Adverse Effect.


 


4.9.          Title to Properties.  Except as set forth in Schedule 4.9,
each of the Company and its Subsidiaries has (a) good and marketable title to
and fee simple ownership of, or a valid and subsisting leasehold interest in,
all of its real property and (b) good title to, or a valid and subsisting
leasehold interest in, all of its equipment and other personal property, in
each case free and clear of all Liens, except Permitted Liens.  The Company and its Subsidiaries have paid
or discharged, or reserved for, all lawful claims which, if unpaid, might
become a Lien (other than a Permitted Lien) against any property or assets of
the Company or its Subsidiaries.


 


4.10.        Intellectual Property Rights.  The Company and its Subsidiaries own or
possess all Intellectual Property reasonably necessary to conduct their
businesses as now conducted, except where the expiration or loss of any of such
Intellectual Property, individually or in the aggregate, would not reasonably
be expected to have a Material Adverse Effect. 
To the best knowledge of the Company and its Subsidiaries, (a) there is
no infringement of, or conflict with, such Intellectual Property by any third
party and (b) the conduct of their businesses as currently conducted do
not infringe or conflict with any Intellectual Property of any third party, in
each case other than any such infringements or conflicts which, individually or
in the aggregate, have not had or would not reasonably be expected to have a
Material Adverse Effect.


 


4.11.        Taxes.


 


(a)           All Tax Returns that
are required to be filed on or before the Closing Date by or with respect to
the Company or the Tax Subsidiaries, have been or will be timely filed on or
before the Closing Date, and all such Tax Returns are or will be true and
complete in all material respects;


 


(b)           all Taxes shown to be
due on the Tax Returns referred to in clause (a) have been or will be timely
paid in full;


 


(c)           adequate provision has
been made for the payment of Taxes for which the Company or Tax Subsidiaries
may be liable for the periods ending after the Closing Date that are not yet
due and payable;


 


(d)           except as set forth on
Schedule 4.11(d), the Tax Returns referred to in clause (a) have been examined
by the Internal Revenue Service or the appropriate state, local or foreign
taxing authority or the period for assessment of the Taxes in respect of which
such Tax Returns were required to be filed has expired;


 


(e)           all deficiencies
asserted or assessments made as a result of such examinations have been paid in
full;


 


34

















 


(f)            no issues that have
been raised by the relevant taxing authority in connection with the examination
of any of the Tax Returns referred to in clause (a) are currently pending;


 


(g)           no waivers of statutes
of limitation have been given by or requested with respect to any Taxes of the
Company or the Tax Subsidiaries;


 


(h)           neither the Company nor
the Tax Subsidiaries will be required, as a result of (i) a change in accounting
method to include any adjustment under Section 481(c) of the Code (or any
similar provision of state, local or foreign law) in taxable income for any Tax
period ending on or after the Closing Date or (ii) any “closing agreement” as
described in Section 7121 of the Code (or any similar provision of state, local
or foreign Tax law), to include any item of income in or exclude any item of
deduction from any Tax period ending on or after the Closing Date;


 


(i)            there are no Liens on
any of the assets of the Company or the Tax Subsidiaries that arose in
connection with any failure (or alleged failure) to pay any Tax;


 


(j)            the Company and the
Tax Subsidiaries have never been a member of an affiliated, combined,
consolidated or unitary Tax group for purposes of filing any Tax Return (except
for such groups of which the Company or one of the Tax Subsidiaries was the
common parent);


 


(k)           except as set forth on
Schedule 4.11(k), no closing agreements, private letter rulings, technical
advance memoranda or similar agreement or rulings have been entered into or
issued by any taxing authority with respect to the Company or the Tax
Subsidiaries; and


 


(l)            neither the Company
nor any Tax Subsidiary or any predecessors to any of such entities has made any
consent under Section 341 of the Code with respect to the Company or any Tax
Subsidiary.


 


4.12.        Employee Benefit Plans.


 


(a)           There has been no
failure by any employee benefit plan, within the meaning of Section 3(3) of
ERISA, which is maintained by the Company or any of its Subsidiaries or to
which the Company or any of its Subsidiaries contributes (each, a “Plan”)
to comply with the applicable requirements of ERISA and the Internal Revenue
Code of 1986, as amended (the “Code”) other than any such failures that,
individually or in the aggregate, have not had and would not reasonably be
expected to have a Material Adverse Effect. 
There is no material pending or, to the knowledge of the Company
threatened, litigation relating to the Plans. 
Neither the Company nor any of its Subsidiaries has engaged in a
transaction with respect to any Plan that, assuming the taxable period of such
transaction expired as of the date hereof, could subject the Company or any of
its Subsidiaries to a tax or penalty imposed by either Section 4975 of the
Code or Section 502(i) of ERISA other than those that, individually or in
the aggregate, have not had and would not reasonably be excepted to have a
Material Adverse Effect


 


(b)           No liability under
Subtitle C or D of Title IV of ERISA has been or is expected to
be incurred by the Company or any of its Subsidiaries with respect to any
ongoing,


 


35

















 


frozen or terminated “single-employer plan”, within the meaning of
Section 4001(a)(15) of ERISA, currently or formerly maintained by any of them,
or the single-employer plan of any entity which is considered one employer with
the Company under Section 4001 of ERISA or Section 414 of the Code (an “ERISA
Affiliate”).  Neither the Company,
any of its Subsidiaries nor an ERISA Affiliate has contributed to a
“multiemployer plan”, within the meaning of Section 3(37) of ERISA, at any
time on or after September 26, 1980. 
No notice of a “reportable event”, within the meaning of
Section 4043 of ERISA for which the 30-day reporting requirement has not
been waived, has been required to be filed for any Plan which is an “employee
pension benefit plan” within the meaning of Section 3(2) of ERISA (“Pension
Plan”) or by any ERISA Affiliate within the 12-month period ending on the
date hereof.


 


(c)           Neither any Pension
Plan nor any single-employer plan of an ERISA Affiliate has an “accumulated
funding deficiency” (whether or not waived) within the meaning of
Section 412 of the Code or Section 302 of ERISA and no ERISA
Affiliate has an outstanding funding waiver. Neither the Company nor any of its
Subsidiaries has provided, or is required to provide, security to any Pension
Plan or to any single-employer plan of an ERISA Affiliate pursuant to Section
401(a)(29) of the Code.


 


(d)           Under each Pension Plan
which is a single-employer plan, as of the last day of the most recent plan
year ended prior to the date hereof, the actuarially determined present value
of all “benefit liabilities”, within the meaning of Section 4001(a)(16) of ERISA
(as determined on the basis of the actuarial assumptions contained in the
Plan’s most recent actuarial valuation), did not exceed the then current value
of the assets of such Plan, and there has been no material change in the
financial condition of such Plan since the last day of the most recent plan
year.


 


(e)           Neither the Company nor
any of its Subsidiaries has any obligations for retiree health and life
benefits under any Plan, except as required by Applicable Law or as set forth
on Schedule 4.12(e).  The
Company or the Subsidiaries may amend or terminate any such Plan at any time
without incurring any liability thereunder.


 


4.13.        Private Offering; No Integration or
General Solicitation.


 


(a)           Subject to compliance
by the Purchasers with the representations and warranties set forth in Section
5 hereof and with the procedures set forth in Section 10 hereof, it is not
necessary in connection with the exchange of the Existing Holdings Notes for
the Notes to the Purchasers and to any Person to whom any Purchaser sells any
of such Notes (each, a “Subsequent Purchaser”) in the manner
contemplated by this Agreement to register the Notes under the Securities Act,
or, until such time as the Exchange Notes are issued or the Notes or Exchange
Notes are otherwise registered pursuant to an effective registration statement
under the Securities Act, to qualify an indenture relating to the Notes or
Exchange Notes under the TIA.


 


(b)           The Company has not,
directly or indirectly, offered, sold or solicited any offer to buy and will
not, directly or indirectly, offer, sell or solicit any offer to buy, any
security of a type or in a manner which would be integrated with the issuance
of the Notes and require the Notes to be registered under the Securities Act.  None of the Company, its Affiliates or any
person acting on its or any of their behalf (other than the Purchasers, as to
whom the Company


 


36

















 


makes no representation or warranty) has engaged or will engage in any
form of general solicitation or general advertising (within the meaning of Rule
502(c) under the Securities Act) in connection with the offering of the
Notes.  With respect to the Notes, if
any, sold in reliance upon the exemption afforded by Regulation S (i) none of the
Company, its Affiliates or any person acting on its or their behalf (other than
the Purchasers, as to whom the Company makes no representation or warranty) has
engaged or will engage in any directed selling efforts within the meaning of
Regulation S and (ii) each of the Company and its Affiliates and any
person acting on its or their behalf (other than the Purchasers, as to whom the
Company makes no representation or warranty) has complied and will comply with
the offering restrictions set forth in Regulation S.


 


4.14.        Eligibility for Resale under Rule
144A.  The Notes are eligible
for resale pursuant to Rule 144A and will not, at the Closing Date, be of the
same class as securities listed on a national securities exchange registered
under Section 6 of the Exchange Act or quoted on a U.S. automated interdealer
quotation system.


 


4.15.        Status Under Certain Statutes.  Neither the Company nor any of its
Subsidiaries is or, after the exchange of the Existing Holdings Notes for the
Notes and the consummation of the other transactions contemplated by the
Transaction Documents, will be (a) subject to regulation under the Public
Utility Holding Company Act of 1935, the Federal Power Act or the Interstate
Commerce Act, each as amended, (b) an “investment company” registered or
required to be registered under the Investment Company Act of 1940, as amended,
or controlled by such a company or (c) a “holding company,” or a
“Subsidiary company” of a “holding company,” or an “affiliate” of a “holding
company” or of a “Subsidiary” or a “holding company,” within the meaning of the
Public Utility Holding Company Act of 1935, as amended.


 


4.16.        Insurance.  Each of the Company and its Subsidiaries are
insured by financially sound institutions with policies in such amounts and with
such deductibles and covering such risks as are generally deemed adequate for
their businesses including, but not limited to, policies covering real and
personal property owned or leased by the Company and its Subsidiaries against
theft, damage, destruction and acts of vandalism.


 


4.17.        Existing Indebtedness; Future Liens.  Schedule 4.17 sets forth a complete
and correct list of all Indebtedness of the Company and its Subsidiaries that
will be outstanding immediately after the Closing except for any such
Indebtedness not so scheduled which, in the aggregate, does not exceed $50,000
(such scheduled and unscheduled Indebtedness, the “Existing Indebtedness”).  Neither the Company nor any Subsidiary of
the Company is in default, and no waiver of default is currently in effect, in
the payment of the principal of or interest on any Indebtedness of the Company
or such Subsidiary and no event or condition exists with respect to any
Indebtedness of the Company or any Subsidiary of the Company that would permit
(or that with notice, lapse of time or both, would permit) any Person to cause
such Indebtedness to become due and payable before its stated maturity or
before its regularly scheduled dates of payment.  Neither the Company nor any of its Subsidiaries has agreed or
consented to cause or permit in the future (upon the happening of a contingency
or otherwise) any of its property or assets, whether now owned or hereafter
acquired, to be subject to a Lien that would be prohibited by this Agreement if
incurred after the Closing.


 


37

















 


4.18.        Compliance with Laws; Permits.  Each of the Company and each of its
Subsidiaries has complied, and is in compliance, in all material respects with
all Applicable Laws and has all Permits material to, and necessary in, the
conduct of its business as currently conducted and all such Permits are in full
force and effect.  No violations have
been recorded in respect of any such licenses, permits and qualifications, and
no proceeding is pending or, to the best knowledge of the Company and its
Subsidiaries, threatened to revoke or limit any Permit, except for violations
and proceedings which, individually or in the aggregate, have not and could not
reasonably be expected to have a Material Adverse Effect.  Schedule 4.18 sets forth a list of
all such Permits and the expiration dates thereof.


 


4.19.        Solvency.  The Company and its Subsidiaries are, and
after giving effect to the Transactions will be, Solvent.


 


4.20.        Affiliate Transactions.  (a) Except for the currently outstanding
loans to management of the Company in the aggregate amount of $6,724,210 (which
loans are in compliance with the applicable law) and a loan to a certain
stockholder in the amount of $200,167.00, there is no Indebtedness between the
Company or any of its Subsidiaries, on the one hand, and any officer,
stockholder, director or Affiliate (other than the Company or any of its
Subsidiaries) of the Company, on the other, (b) except as provided in the
Management Services Agreement, no such officer, stockholder, director or
Affiliate provides or causes to be provided any assets, services or facilities
to the Company or any of its Subsidiaries which, individually or in the
aggregate, are material to the business, assets, condition (financial or
otherwise), results of operations or prospects of the Company and its
Subsidiaries, (c) neither the Company nor any of its Subsidiaries provides or
causes to be provided any assets, services, or facilities to any such officer,
stockholder, director or Affiliate which, individually or in the aggregate, are
material to the business, assets, condition (financial or otherwise), results
of operations or prospects of the Company and its Subsidiaries, (d) neither the
Company nor any Subsidiary beneficially owns, directly or indirectly, any
investment in or issued by any such officer, director or Affiliate and (e) no
such officer, stockholder, director or Affiliate has any direct or indirect
ownership interest in any Person with which the Company or any of its
Subsidiaries competes or has a business relationship.


 


4.21.        Material Contracts.  Schedule 4.21 contains a true,
correct and complete list of all Material Contracts in effect on the Closing
Date.  Except as described on Schedule
4.21, as of the Closing Date each Material Contract is in full force and
effect and no material defaults enforceable against the Company or any of its
Subsidiaries currently exist thereunder. 
To the best knowledge of the Company and its Subsidiaries, no party to
any Material Contract intends to terminate such Material Contract.


 


4.22.        Pari
Passu Obligations.  The
obligations of the Company under this Agreement and the Notes rank and will at
all times rank pari passu with, or senior to, all other obligations of the
Company in respect of its unsubordinated indebtedness for borrowed money, and
there is and will be no indebtedness for borrowed money of the Company senior
to such obligations.


 


4.23.        No Changes to Applicable Law.  To the best knowledge of the Company, no
changes to Applicable Law affecting the Company or any of its Subsidiaries have
occurred


 


38

















 


since the Audit Date or are currently pending or threatened, in each
case other than those which have not had and would not reasonably be expected
to have a Material Adverse Effect.


 


4.24.        Indebtedness.  On the Closing Date, after consummation of
the Transactions, the consolidated Indebtedness of the Company and its
Subsidiaries will not exceed $237,235,189 (excluding the Indebtedness evidenced
by the Notes and the Subordinated Notes).


 


4.25.        Fees.  All fees and other expenses payable in
connection with the consummation of the Transactions, in each case by the
Company or any of its Subsidiaries, shall not exceed $13,000,000 and shall be
reasonably consistent with the schedule of fees provided by the Company to the
Purchasers prior to the Closing Date.


 


4.26.        Documents and Procedures.  The agreements, instruments and documents
used and the procedures followed by the Company and its Subsidiaries in the
conduct of their business are sufficient to effect the transactions purported
to be effected by such agreements, instruments and documents and to perfect the
liens or security interests purported to be created by such agreements, instruments
and documents, except for failures to effect such transactions or perfect such
security interests which, individually or in the aggregate, would not
reasonably be expected to have a Material Adverse Effect.


 


4.27.        Standards and Procedures.  The Company has previously delivered to the
Purchasers or will deliver to the Purchasers upon request copies of the credit
and loan standards, procedures and guidelines employed by the Company and its
Subsidiaries.  To the Company’s
knowledge, such standards, procedures and guidelines are followed by the
employees and personnel of the Company and its Subsidiaries in conducting the
business of the Company and its Subsidiaries, except for failures to follow
such standards, procedures and guidelines which, individually or in the
aggregate, would not reasonably be expected to have a Material Adverse Effect.


 


4.28.        No Unrelated Liabilities.  As of the Closing, neither the Company nor
any of its Subsidiaries will have any liability unrelated to the business or
operations conducted by the Company and its Subsidiaries.  Neither the Company nor any of its
Subsidiaries has since June 30, 2003 made, and will not prior to the Closing
make, any payment with respect to any such liability.


 


4.29.        Brokerage
Fees.  Except as disclosed in Schedule
4.29, neither the Company nor any of its Subsidiaries has paid, or is
obligated to pay, to any Person any brokerage or finder’s fees in connection
with the transactions contemplated hereby or by any other Transaction
Documents.


 


SECTION 5.


 


REPRESENTATIONS OF THE PURCHASERS


 


Each Purchaser, severally
and not jointly, represents and warrants to the Company as of the date hereof
as follows:


 


39

















 


5.1.          Purchase for Investment.


 


(a)           Such Purchaser is
acquiring the Notes for its own account, for investment and not with a view to
any distribution thereof within the meaning of the Securities Act.


 


(b)           Such Purchaser
understands that (i) the Notes have not been registered under the Securities
Act and are being issued by the Company in transactions exempt from the
registration requirements of the Securities Act and (ii) the Notes may not be
offered or sold except pursuant to an effective registration statement under
the Securities Act or pursuant to an applicable exemption from registration
under the Securities Act.


 


(c)           Such Purchaser further
understands that the exemption from registration afforded by Rule 144 (the
provisions of which are known to such Purchaser) promulgated under the
Securities Act depends on the satisfaction of various conditions, and that, if
applicable, Rule 144 may afford the basis for sales only in limited amounts.


 


(d)           Such Purchaser did not
employ any broker or finder in connection with the transactions contemplated in
this Agreement.


 


(e)           Such Purchaser is an
“Accredited Investor” (as defined in Rule 501 (a) under the Securities Act).


 


5.2.          Waiver of Notice of Redemption.  The Purchasers hereby waive the requirements
of (x) Sections 12.03 and 12.04 of the Existing Holdings Purchase Agreement and
(y) those provisions of the Existing Holdings Purchase Agreement that would
prevent the Company from redeeming the Existing Holdings Notes prior to
December 18, 2003, in each case, to the extent such provisions may be
applicable to the redemption of a portion of the Accreted Value of the Existing
Holdings Notes described in Section 3.6.


 


SECTION 6.


 


COVENANTS TO PROVIDE INFORMATION


 


The Company covenants and
agrees with each Purchaser that until the principal amount of (and premium, if
any, on) all the Notes, and all interest, Special Interest and other
obligations hereunder in respect thereof, shall have been paid in full:


 


6.1.          Future Reports to Purchasers.


 


The Company shall deliver
to each Purchaser (for so long as such Purchaser holds any Notes or the
Exchange Notes) and, except for the information provided in clause (a) below,
each Subsequent Purchaser that is an Institutional Investor (reports required
by clauses (a), (b) and (c) below are referred to herein collectively as, the “Company
Financial Statements”):


 


(a)           Monthly Statements.  As soon as available but in any event within
thirty (30) days after the end of each month, duplicate copies of:


 


(i)            a consolidated balance
sheet of the Company and its Subsidiaries as at the end of such month, and


 


40

















 


(ii)           consolidated statements
of income, stockholders’ equity and cash flows of the Company and its
Subsidiaries for such month and for the portion of the fiscal year ending with
such month,


 


in each case setting forth in comparative form the figures for the
corresponding periods in the prior fiscal year, all in reasonable detail,
prepared in accordance with GAAP applicable to periodic financial statements
generally, and fairly presenting, in all material respects, the financial
position of the companies being reported on and their results of operations and
cash flows, subject to changes resulting from normal year-end adjustments that
will not be material in amount or effect, and accompanied by a certificate of
the chief financial officer to the foregoing effect.


 


(b)           Quarterly Statements.  As soon as available, but in any event
within forty-five (45) days after the end of each quarter, duplicate copies of:


 


(i)            a consolidated and
consolidating balance sheet of the Company and its Subsidiaries as at the end
of such quarter, and


 


(ii)           consolidated and
consolidating statements of income, stockholders’ equity and cash flows of the
Company and its Subsidiaries, for such quarter and for the portion of the
fiscal year ending with such quarter,


 


in each case setting forth in comparative form the figures for the
corresponding periods in the prior fiscal year, all in reasonable detail,
prepared in accordance with GAAP applicable to periodic financial statements
generally, and fairly presenting, in all material respects, the financial
position of the companies being reported on and their results of operations and
cash flows, subject to changes resulting from normal year-end adjustments that
will not be material in amount or effect, and accompanied by a certificate of
the chief financial officer to the foregoing effect; provided, however, that if
the Company is then subject to the reporting requirements under Section 13 or
Section 15(d) of the Exchange Act, the delivery by the Company to such
Purchaser or such Subsequent Purchaser of a Quarterly Report on Form 10-Q or
any successor form within the time period prescribed by the Commission (so long
as such period does not exceed a forty-five (45) day period described above)
shall satisfy the requirements of this Section 6.1(b).  The consolidating balance sheet and
statements of income, stockholders’ equity and cash flows required by this
paragraph may be in the form contained in the notes to the financial statements
included in Company’s Form 10-Q.


 


(c)           Annual Statements.  As soon as available, but in any event
within ninety (90) days after the end of each fiscal year of the Company,
duplicate copies of:


 


(i)            a consolidated and
consolidating balance sheet of the Company and its Subsidiaries as at the end
of such year, and


 


(ii)           consolidated and
consolidating statements of income, stockholders’ equity and cash flows of the
Company and its Subsidiaries for such year,


 


in each case setting forth in comparative form the figures for the
prior fiscal year, all in reasonable detail, prepared in accordance with GAAP,
fairly presenting, in all material respects,


 


41

















 


the financial position of the companies being reported on and their
results of operations and cash flows, subject to changes resulting from normal
year-end adjustments, and accompanied by:


 


(A)          an opinion thereon of
independent certified public accountants of recognized national standing, which
opinion (i) shall state that such financial statements (other than
consolidating statements) present fairly, in all material respects, the
financial position of the companies being reported upon and their results of
operations and cash flows and have been prepared in conformity with GAAP, and
that the examination of such accountants in connection with such financial
statements (other than consolidating statements) has been made in accordance
with generally accepted auditing standards in the United States, and that such
audit provides a reasonable basis for such opinion in the circumstances, and
(ii) shall not contain a “going concern” or like qualification, or any
exception or other qualification arising out of the scope of the audit,


 


(B)           a certificate of such
accountants stating that they have reviewed this Agreement and, if applicable,
stating further that based upon their work performed in connection with their
examination of such financial statements (other than consolidating statements),
they are not aware of any Default or Event of Default specified in
Section 11 or, if applicable, the corresponding section of the Agreement,
or, if they are aware of any such Default or Event of Default, specifying the
nature thereof (it being understood that such accountants shall not be liable,
directly or indirectly, for any failure to obtain knowledge of any such Default
or Event of Default unless such accountants should have obtained knowledge
thereof in making an audit in accordance with generally accepted auditing
standards), and


 


(C)           a certificate of the
chief financial officer stating that such financial statements have been
prepared in accordance with GAAP applicable to periodic financial statements
generally and fairly present, in all material respects, the financial position
of the companies being reported on and their results of operations and income,
retained earnings and stockholders’ equity, and cash flows,


 


provided,
however, that if the Company is then subject to the reporting
requirements under Section 13 or Section 15(d) of the Exchange Act, the
delivery by the Company to such Purchaser or such Subsequent Purchaser of an
Annual Report on Form 10-K or any successor form within the time period
prescribed by the Commission (so long as such period does not exceed a ninety
(90) day period described above) shall satisfy the requirements of this Section
6.1(c).  The consolidating balance sheet
and statements of income, stockholders’ equity and cash flows required by this
paragraph may be in the form contained in the notes to the financial statements
included in Company’s Form 10-K.


 


(d)           Chief Financial
Officer Certificates.  Concurrently
with the delivery of the financial statements referred to in subsections (a)
through (c) of this Section 6.1, a certificate of the chief financial officer
of the Company (i) stating that, to the best of such officer’s knowledge after
due inquiry, each of the Company and its respective Subsidiaries has observed
or performed


 


42

















 


all of its covenants and other agreements, and satisfied every
condition, contained in this Agreement and the other Transaction Documents to
be observed, performed or satisfied by it, and that such officer has obtained
no knowledge of any Default or Event of Default except as specified in such
certificate and (ii) showing in detail as of the end of the related fiscal
period the figures and calculations supporting such statement in respect of
Sections 8.2 and 8.4 of this Agreement or, if applicable, the
corresponding sections of the Indenture.


 


(e)           Auditors’ Reports.  Promptly upon receipt thereof, copies of all
(i) final reports submitted to the Company or to any of its Subsidiaries by
independent certified public accountants in connection with each annual,
interim or special audit of the books of the Company or any of its Subsidiaries
made by such accountants, including, without limitation, any final comment
letter submitted by such accountants to management in connection with their
annual audit and (ii) any other management letters received by the Company or
its Subsidiaries.


 


(f)            Other Information.  Promptly upon their becoming available,
copies of all financial statements, reports, notices and proxy statements sent
to its securityholders or made available generally by the Company or any of its
Subsidiaries and all regular and periodic reports and all registration
statements and final prospectuses, if any, filed by the Company or any of its
Subsidiaries with any securities exchange or with the Commission or any
Governmental Authority succeeding to any of its functions and, promptly upon
request, such additional financial and other information as any Purchasers may
from time to time reasonably request.


 


(g)           Notice of Default or
Event of Default.  Promptly, but in
any event within three (3) Business Days, after any officer of the Company
becomes aware of the existence of any Default or Event of Default or that any
Person has given any notice or taken any other action with respect to a claimed
Default or Event of Default, a written notice thereof specifying the nature and
existence thereof and what action the Company is taking or proposes to take
with respect thereto.


 


(h)           Additional
Information to Holders of Other Indebtedness.  Prior to the first consummation of an IPO,
simultaneously with the furnishing of such information to any other holder of
Indebtedness of the Company or any of its Subsidiaries, (i) copies of all other
financial statements, reports or projections with respect to the Company or its
Subsidiaries which are broader in scope or on a more frequent basis than the
Company is required to provide under this Agreement, and (ii) copies of all
studies, reviews, reports or assessments relating to environmental matters that
reveal circumstances, events or other matters that would reasonably be expected
to have a Material Adverse Effect.


 


(i)            Changes to
Indebtedness.  At least ten (10)
days prior thereto, written notice of any proposed extension, renewal,
refinancing or modification of any Indebtedness exceeding $250,000 of the Company
or any of its Subsidiaries.


 


43

















 


SECTION 7.


 


OTHER AFFIRMATIVE COVENANTS


 


The Company further
covenants and agrees with each Purchaser that (i) in the case of Section 7.8,
for so long as such Section applies by its terms and (ii) in the case of each
other Section in this Section 7, until the principal amount of (and premium, if
any, on) all the Notes, and all interest, Special Interest and other
obligations hereunder in respect thereof, shall have been paid in full:


 


7.1.          Preservation of Corporate Existence
and Franchises.  Subject to
Section 8 hereof, the Company shall do or cause to be done all things necessary
to preserve and keep in full force and effect (a) its corporate existence, and
the corporate, partnership or other existence of each of its Subsidiaries, in
accordance with the respective organizational documents (as the same may be
amended from time to time) of the Company or any such Subsidiary and (b) the
rights (charter and statutory), licenses and franchises of the Company and its
Subsidiaries; provided, however, that the Company shall not be required to
preserve any such right, license or franchise, or the corporate, partnership or
other existence of any of its Subsidiaries if (i) the Board shall determine
that the preservation thereof is no longer desirable in the conduct of the
business of the Company and its Subsidiaries, taken as a whole and (ii) the
loss thereof is not reasonably likely to result in a Material Adverse Effect.


 


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


 


7.3.          Taxes.


 


(a)           Payment of Taxes.  The Company shall pay or discharge or cause
to be paid or discharged, before the same shall become delinquent, (i) all
taxes, assessments and governmental charges levied or imposed upon the Company
or any of its Subsidiaries or upon the income, profits or property of the
Company or any of its Subsidiaries and (ii) all lawful claims for labor,
materials and supplies which, if unpaid, might by law become a lien upon the
property of the Company or any of its Subsidiaries; provided, however, that the
Company shall not be required to pay or discharge or cause to be paid or
discharged any such tax, assessment, charge or claim whose amount,
applicability or validity is being contested in good faith by appropriate
proceedings; provided, that
appropriate reserves therefor are established in the Company’s consolidated
financial statements in accordance with GAAP.


 


44

















 


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


 


(c)           Contest Provisions.  The Company shall promptly notify the
Purchasers in writing upon receipt by the Company or the Tax Subsidiaries or
any of their Affiliates of notice of any pending or threatened federal, state,
local or foreign income or franchise tax audits or assessments which may
materially affect the tax liabilities of the Company.


 


(d)           Character of the
Transaction.  The parties to this
Agreement agree to treat the exchange of the Existing Holdings Notes for the
Notes and the Financing Payment as a recapitalization within the meaning of
Section 368(a)(1)(E) of the Code with the Financing Payment being subject to
tax pursuant to Section 356 of the Code.


 


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


 


(f)            Survival of
Obligations.  The obligations of the
parties set forth in this Section 7.03 shall be unconditional and absolute and
shall remain in effect until the expiration of the relevant statute of
limitations.


 


7.4.          Books,
Records and Access.  The Company and
its Subsidiaries will keep complete and accurate books and records of their
transactions in accordance with good accounting practices on the basis of GAAP
applied on a consistent basis (including the establishment and maintenance of
appropriate reserves).  The Company, DFG
and its Subsidiaries will provide reasonable opportunities to the Purchasers
(so long as the Purchasers and their Affiliates own any Notes, Subordinated
Notes and/or Holdings Note Shares), to consult with and advise management of
the Company, DFG or any of its Subsidiaries, as the case may be, on significant
business issues, including management’s proposed annual operating plans.  The Company, DFG and its Subsidiaries each
agrees to give due consideration to the advice given and any proposals made by
the Purchasers.  To the extent
reasonably required in connection with any resale of the Notes and upon
reasonable notice, the Company shall, and shall cause its Subsidiaries to,
subject to compliance with Applicable Laws and confidentiality obligations to
third parties, give each Purchaser any sales or placement agent or underwriter
participating in such resale) and their authorized representatives reasonable
access during normal business hours to all contracts, books, records,
personnel, offices and other facilities and properties of the Company and its
Subsidiaries and their legal advisors, accountants and, to the extent available
to the Company after the Company uses reasonable efforts to obtain them, the
accountants’ work papers, permit each Purchaser (and any such sales or
placement agent or any underwriter) to make such copies and inspections thereof
as such Purchaser may reasonably request and furnish each Purchaser (and any
such sales or placement agent or underwriter) with such financial and operating
data and other information with respect to the business and properties of the
Company and its Subsidiaries as such Purchaser (and any such sales or placement
agent or underwriter) may from time to time reasonably request; provided,
however, that no investigation or information furnished pursuant to
this Section 7.4 shall affect any representations or warranties made by the
Company herein or the conditions to the obligations of the Purchasers to


 


45

















 


consummate the transactions contemplated hereby.  Any such visit will be at the expense of
such Purchaser.


 


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


 


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


 


7.7.          Offer to Repurchase Upon Change of
Control.


 


(a)           Upon the occurrence of
a Change of Control, the Company shall make an offer (a “Change of Control
Offer”) to each Holder to repurchase all or any part (equal to $1,000 or a
multiple thereof) of each Holder’s Notes at an offer price in cash equal to
101% of the Current Accretion Amount thereof as of the Change of Control
Payment Date, plus accrued and unpaid interest and Special Interest, if any,
thereon to the Change of Control Payment Date (the “Change of Control
Payment”).  The Company shall comply
with the requirements of Rule 14e-1 under the Exchange Act and any other
securities laws and regulations thereunder to the extent such laws and regulations
are applicable in connection with the repurchase of the Notes as a result of a
Change of Control, and the Company shall not be in violation of this Agreement
by reason of any act required by such rule or other applicable law.


 


(b)           Within twenty-five (25)
days following any Change of Control, the Company shall mail a notice to each
Holder stating:


 


(i)            that the Change of
Control Offer is being made pursuant to this Section 7.7 and that all Notes
tendered will be accepted for payment;


 


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


 


(iii)          that any Notes not
tendered will continue to accrue interest, Capitalized Interest, if applicable,
and Special Interest, if any;


 


(iv)          that, unless the Company
defaults in the payment of the Change of Control Payment, all Notes accepted
for payment pursuant to the Change of Control Offer shall cease to accrue
interest, Capitalized Interest, if applicable, and Special Interest, if any,
after the Change of Control Payment Date;


 


46

















 


(v)           that Holders electing
to have any Notes purchased pursuant to a Change of Control Offer shall be
required to surrender the Notes, with the form entitled “Option of Holder to
Elect Purchase” on the reverse of the Notes completed, to the Company or its
designated agent for such purpose, at the address specified in the notice prior
to the close of business on the third Business Day preceding the Change of
Control Payment Date;


 


(vi)          that Holders will be
entitled to withdraw their election if the Company or its designated agent for
such purpose, receives, not later than the close of business on the second
Business Day preceding the Change of Control Payment Date, a telegram, telex,
facsimile transmission or letter setting forth the name of the Holder, the
principal amount of Notes delivered for purchase, and a statement that such
Holder is withdrawing his election to have the Notes purchased; and


 


(vii)         that Holders whose Notes
are being purchased only in part will be issued new Notes equal in principal
amount to the unpurchased portion of the Notes surrendered, which unpurchased
portion must be equal to $1,000 in principal amount or a multiple thereof.


 


(c)           On the Change of
Control Payment Date, the Company shall, to the extent lawful, (i) accept for
payment all Notes or portions thereof properly tendered pursuant to the Change
of Control Offer and (ii) set aside an amount equal to the Change of Control
Payment in respect of all Notes or portions thereof so tendered.  The Company shall promptly mail to each
Holder of Notes so tendered the Change of Control Payment for such Notes, and
the Company shall promptly execute and mail (or cause to be transferred by
book-entry) to each Holder a new Note equal in principal amount equal to any
unpurchased portion of the Notes surrendered, if any; provided, however, that each
such new Note shall be in a principal amount of $1,000 or a multiple
thereof.  The Company shall publicly
announce the results of the Change of Control Offer on or as soon as
practicable after the Change of Control Payment Date.


 


(d)           The Company shall not
be required to make a Change of Control Offer upon a Change of Control if a
third party makes the Change of Control Offer in a manner, at the times and
otherwise in compliance with the requirements set forth in this Section 7.7 and
such third party purchases all Notes validly tendered and not withdrawn under
such Change of Control Offer.


 


7.8.          Board Representation.  So long as (A) with respect to the GSMP
Directors and a Non-Voting Observer appointed by GS Mezzanine, the GSMP
Purchasers and their Affiliates own any Notes, Subordinated Notes and/or
Holdings Note Shares and (B) with respect to a Non-Voting Observer appointed by
Ares, Ares and its Affiliates owns any Notes, Subordinated Notes and/or any
Holdings Note Shares:


 


(a)           The Company shall
cause, (i) at the request of GS Mezzanine, the election or appointment of two
persons, who may be a partner, managing director, officer or employee of
Goldman, Sachs & Co. or The Goldman Sachs Group, L.P., as directors of the
Company (the “GSMP Directors”), (ii) at the request of Ares, the
selection of one person, who may be a partner, managing director, officer or
employee of Ares, as a non-voting observer (a “Non-Voting


 


47

















 


Observer”) to each of the Related
Boards and (iii) at the request of GS Mezzanine, the selection of one person,
who may be a partner, managing director, officer or employee of Goldman, Sachs
& Co. or The Goldman Sachs Group, L.P. and who may also serve as a GSMP
Director on the Board, as a Non-Voting Observer to any Related Board or a
Committee thereof on which no GSMP Director shall serve at the time of such
selection; it being understood that (A) GS Mezzanine may from time to time
change the designations of such GSMP Directors and a Non-Voting Observer
appointed by it and (B) Ares may from time to time change the designations of a
Non-Voting Observer appointed by it. 
The Company shall ensure that (i) no person serving as the GSMP Director
may be removed as a Director other than for cause or by GS Mezzanine and (ii)
any such person shall be removed as a Director at the request of GS
Mezzanine.  In the event of a vacancy
caused by the resignation or other cessation of service of any GSMP Director or
Non-Voting Observer from any Related Board, upon nomination by GS Mezzanine, or
Ares, as the case may be, the Company shall cause the appointment of a new GSMP
Director or Non-Voting Observer nominated by GS Mezzanine or Ares, as the case
may be, at least seven (7) days prior to the date of the next regular or
special meeting of such Related Board. 
Any Non-Voting Observer shall be permitted to attend meetings of each of
the Related Boards or each such other board or committee in person or
telephonically, at the option of the Non-Voting Observer.  The GSMP Directors, to the extent they meet
all legal and securities exchange or NASDAQ requirements, as applicable, shall
be members of such Committees of the Board, as they may request.  The number of directors on each Related
Board, shall not exceed seven.


 


(b)           Each Non-Voting
Observer shall be entitled to be present at all meetings of each Related Board
and each committee of each Related Board and such observer shall be notified of
any meeting of any such board of directors or committee, including such
meeting’s time and place, in the same manner as directors of the Company, DFG
or any of their respective Subsidiaries, as applicable, and shall have the same
access to information (including any copies of all materials distributed to
members of the Related Boards or committees thereof) concerning the business
and operations of the Company, DFG or such Subsidiary, as applicable, and at
the same time as directors of the Company, DFG or such Subsidiaries, as
applicable, and shall be entitled to participate in discussions and consult with,
and make proposals and furnish advice to, such board of directors or committee
without voting; provided, however, that the Company, DFG and any of their
respective Subsidiaries, shall not be under any obligation to take any action
with respect to any proposals made or advice furnished to it by any Non-Voting
Observer, other than to take such proposals or advice seriously and to give due
consideration thereto.  Each Non-Voting
Observer shall have a duty of confidentiality to the Company, DFG or their respective
Subsidiaries, as applicable, comparable to the duty of confidentiality of a
director of the Company, DFG or such Subsidiary.


 


(c)           At all times after an
IPO, the Company shall cause to be maintained directors’ and officers’
liability insurance covering all directors (including the GSMP Directors) and
officers of the Company and covering each Non-Voting Observer (regardless of
whether such insurance shall be obtained prior to an IPO or after an IPO) (i)
to the same extent as that maintained for all other Directors, the directors of
DFG or the directors of any Subsidiary of the Company or DFG, as applicable and
(ii) on terms no less favorable than the coverage provided for in such
Company’s, DFG’s or Subsidiaries’ directors’, officers’ and corporate liability
insurance then so maintained, including coverage, in each case, in an amount of
at least $10,000,000.


 


48

















 


(d)           The Company, DFG and
any of their respective Subsidiaries, jointly and severally, shall indemnify
and hold harmless, to the fullest extent permitted under the Applicable Law,
the GSMP Directors and each Non-Voting Observer to the same extent as all other
Directors, directors of DFG and any Subsidiary of the Company or DFG, as
applicable, and on terms no less favorable than under the Company’s, DFG’s or
any Subsidiary’s certificate of incorporation and by-laws (or the equivalent
thereof) on the date hereof.  The
Company shall reimburse the GSMP Directors and each Non-Voting Observer for all
their respective out-of-pocket expenses incurred in connection with the
performance of their duties on each Related Board.


 


(e)           So long as the
Purchasers shall be entitled to exercise their rights pursuant to this Section
7.8, the Company, DFG and each of their respective Subsidiaries, each shall
hold at least one meeting (each a “Quarterly Meeting”) of their
respective Boards of Directors on a date during each fiscal quarter.  Within a reasonable time after each
Quarterly Meeting, the Company, DFG or respective Subsidiary, as applicable,
shall cause minutes of such Quarterly Meeting to be delivered to the directors
of such board of directors.


 


(f)            Each of the Company,
DFG and their respective Subsidiaries will notify each GSMP Director and each
Non-Voting Observer of each meeting of their respective boards of directors
reasonably in advance of, and in any event, at least ten (10) Business Days
prior to, any such meeting, unless such meeting is convened to address an
emergency matter requiring immediate attention of the Board or any other
Related Board, as the case may be, in which case the notice of such meeting may
be given within the time period provided for such notices in the by-laws of the
Company, DFG or any of their respective Subsidiaries, as applicable (but in no
event less than 48 hours prior to such meeting).


 


7.9.          Offer to Purchase by Application of
Excess Proceeds.


 


(a)           In the event that,
pursuant to Section 8.5 hereof, the Company shall be required to commence an
offer to all Holders of Notes and all holders of Subordinated Notes to purchase
Notes and Subordinated Notes (an “Asset Sale Offer”), it shall follow
the procedures specified in this Section 7.9. 
Each Asset Sale Offer shall remain open for a period of twenty (20)
Business Days following its commencement and no longer, except to the extent
that a longer period is required by applicable law (the “Offer Period”).  No later than five (5) Business Days after
the termination of the Offer Period (the “Purchase Date”), the Company
shall purchase the principal amount of Notes and Subordinated Notes required to
be purchased pursuant to Section 8.5 hereof (the “Offer Amount”) or, if
less than the Offer Amount has been tendered, all Notes and Subordinated Notes
tendered in response to the Asset Sale Offer. 
Payment for any Notes so purchased shall be made in the same manner as
interest payments are made.


 


(b)           If the Purchase Date is
on or after November 15, 2008 and on or after a Regular Record Date and on or
before the next succeeding Interest Payment Date, any accrued and unpaid
interest shall be paid to the Person in whose name a Note is registered at the
close of business on such Regular Record Date, and no Special Interest shall be
payable to the Holders of Notes tendered and purchased pursuant to the Asset
Sale Offer.


 


49

















 


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


 


(i)            that the Asset Sale
Offer is being made pursuant to this Section 7.9 and Section 8.5 hereof to
Holders of Notes and holders of Subordinated Notes and the length of time the
Asset Sale Offer shall remain open;


 


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


 


(iii)          that any Note not
tendered or accepted for payment shall continue to accrue interest, Capitalized
Interest, if applicable, and Special Interest, if any;


 


(iv)          that, unless the Company
defaults in making such payment, any Note accepted for payment pursuant to the
Asset Sale Offer shall cease to accrue interest, Capitalized Interest, if
applicable, and Special Interest, if any, after the Purchase Date;


 


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


 


(vi)          that Holders electing to
have a Note purchased pursuant to any Asset Sale Offer shall be required to
surrender the Note, with the form entitled “Option of Holder to Elect Purchase”
on the reverse of the Note completed to the Company at the address specified in
the notice at least three (3) Business Days before the Purchase Date;


 


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


 


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


 


(ix)           that Holders whose Notes
were purchased only in part shall be issued new Notes equal in principal amount
to the unpurchased portion of the Notes surrendered.


 


(d)           On or before the
Purchase Date, the Company shall, to the extent lawful, accept for payment, on
a pro rata basis to the extent necessary, the Offer Amount of Notes and
Subordinated Notes or portions thereof tendered pursuant to the Asset Sale
Offer, or if less than


 


50

















 


the Offer Amount has been tendered, all Notes and Subordinated Notes
tendered, and shall deliver to the Holders an Officers’ Certificate stating
that such Notes or portions thereof were accepted for payment by the Company in
accordance with the terms of this Section 7.9. 
The Company shall promptly (but in any case not later than five (5) days
after the Purchase Date) mail or deliver to each tendering Holder an amount
equal to the purchase price of the Notes tendered by such Holder and accepted
by the Company for purchase, and the Company shall promptly issue a new Note
and deliver it to such Holder, in a principal amount equal to any unpurchased
portion of the Note surrendered.  Any
Note not so accepted shall be promptly mailed or delivered by the Company to
the Holder thereof.


 


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


 


SECTION 8.


 


NEGATIVE COVENANTS


 


The Company hereby
covenants and agrees with each Purchaser that until the principal amount of
(and premium, if any, on) all the Notes, and all interest, Special Interest and
other obligations hereunder in respect thereof, shall have been paid in full:


 


8.1.          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 its obligations under the Notes or this Agreement, and the
Company 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 Purchasers, but shall suffer
and permit the execution of every such power as though no such law has been
enacted.


 


8.2.          Restricted Payments.  The Company shall not, and shall not permit
any of its Subsidiaries to, directly or indirectly, (a) declare or pay any
dividend or make any other payment or distribution on account of the Company’s
Equity Interests (including, without limitation, any payment in connection with
any merger or consolidation involving the Company) or to the direct or indirect
holders of the Company’s Equity Interests in their capacity as such (other than
dividends or distributions payable solely in Equity Interests (other than
Disqualified Stock) of the Company or dividends or distributions payable to the
Company or any Wholly Owned Subsidiary of the Company), (b) purchase, redeem or
otherwise acquire or retire for value any Equity Interests of the Company or
any direct or indirect parent of the Company or other Affiliate of the Company,
(c) make any principal payment on, or purchase, redeem, defease or otherwise
acquire or retire for value any Indebtedness that is subordinated to the Notes,
except at final maturity or (d) make any Restricted Investment (all such
payments and other actions set forth in clauses (a) through (d) above being
collectively referred to as “Restricted Payments”); provided, however,
that the foregoing provisions shall not prohibit (i) any repurchase,
redemption or other acquisition or retirement for value by the Company of any
Equity Interests


 


51

















 


of the Company, DFG or any Subsidiary of the Company held by any member
of the Company’s (or any of its Subsidiaries’) management pursuant to any
management equity subscription agreement or stock option agreement; provided, that the aggregate price paid
for all such repurchased, redeemed, acquired or retired Equity Interests shall
not exceed $1,000,000 in any twelve-month period plus the aggregate cash
proceeds received by the Company or any Subsidiary during such twelve-month
period from any reissuance of Equity Interests by the Company or any Subsidiary
to members of management of the Company and its Subsidiaries plus any proceeds
received during such 12-month period under key man insurance policies with
respect to such members of management, (ii) regularly scheduled payments of
interest on the Subordinated Notes and payment of principal of the Subordinated
Notes at stated maturity thereof, in each case, as provided in the Subordinated
Note Exchange Agreement, (iii) redemption of the Subordinated Notes in
connection with the Change of Control Offer, the Asset Sale Offer and in
accordance with Section 12.7 hereof and (iv) redemption or repurchase of the
Holdings Note Shares and/or the Subscription Shares pursuant to the exercise of
the Put Option.


 


8.3.          Dividend and Other Payment
Restrictions Affecting Subsidiaries. 
The Company shall not, and shall not permit any of its Subsidiaries to,
directly or indirectly, create or otherwise cause or suffer to exist or become
effective any encumbrance or restriction on the ability of any Subsidiary to
(a)(i) pay dividends or make any other distributions to the Company or any of
its Subsidiaries (A) on its Capital Stock or (B) with respect to any other
interest or participation in, or measured by, its profits or (ii) pay any
indebtedness owed to the Company or any of its Subsidiaries, (b) make loans or
advances to the Company or any of its Subsidiaries or (c) transfer any of its
properties or assets to the Company or any of its Subsidiaries, except for such
encumbrances or restrictions existing under or by reason of (i) Existing
Indebtedness as in effect on the date of this Agreement, and any amendments,
modifications, restatements, renewals, supplements, refundings, replacements or
refinancings thereof; provided, however,
that such amendments, modifications, restatements, renewals, supplements,
refundings, replacement or refinancings are no more restrictive, taken as a
whole, with respect to such dividend and other payment restrictions than those
contained in the agreements governing such Indebtedness as in effect on the
date of this Agreement, (ii) the Credit Agreement as in effect as of the date
of this Agreement, and any amendments, modifications, restatements, renewals,
increases, supplements, refundings, replacements or refinancings thereof; provided,
however, that such amendments, modifications, restatements,
renewals, increases, supplements, refundings, replacement or refinancings (x)
are no more restrictive, taken as a whole, with respect to such dividend and
other payment restrictions than those contained in the Credit Agreement as in
effect on the date of this Agreement and (y) contain no restrictions on the
ability of (I) DFG to pay dividends or make distributions in an amount
sufficient to enable the Company to make payments of interest on the Notes as
they become due in cash or (II) the Company to make such payments,
(iii)(x) the DFG Senior Notes and the DFG Senior Notes Indenture as in
effect on the date of this Agreement, and any amendments, modifications,
restatements, renewals, supplements, refundings, replacements or refinancings
thereof; provided, however, that such
amendments, modifications, restatements, renewals, supplements, refundings,
replacement or refinancings are no more restrictive, taken as a whole, with
respect to such dividend and other payment restrictions than those contained in
such Indebtedness as in effect on the date of this Agreement, and (y) this
Agreement, the Notes, the Subordinated Note Exchange Agreement and the
Subordinated Notes, (iv) applicable law, (v) by reason of customary
non-assignment provisions in leases, licenses and other agreements entered into
in the ordinary course of business and consistent with past practices, (vi)
purchase


 


52

















 


money obligations for property acquired in the ordinary course of
business that impose restrictions of the nature described in clause (c) above
on the property so acquired, (vii) an agreement for the sale or other
disposition of all or substantially all of the Equity Interests or assets of a
Subsidiary of the Company otherwise permitted by this Agreement that restricts
distributions or dispositions of assets by such Subsidiary pending the sale or
disposition, (viii) provisions with respect to the disposition or distribution
of funds or other property in partnership, joint venture and other similar agreements
entered into in the ordinary course of business, (ix) Liens securing
Indebtedness otherwise permitted to be Incurred pursuant to the provisions of
this Section 8.3 that limit the right of the Company or any of its Subsidiaries
to dispose of the asset or assets subject to such Lien, (x) to the extent not
permitted by the proviso to clause (i) above, Permitted Refinancing
Indebtedness; provided, however,
that the restrictions contained in the agreements governing such Permitted
Refinancing Indebtedness are no more restrictive than those contained in the
agreements governing the Indebtedness being refinanced or (xi) any instrument
governing Indebtedness or Capital Stock of a Person acquired by the Company or
any of its Subsidiaries as in effect at the time of such acquisition (except to
the extent such instrument was created or such Indebtedness was incurred in
connection with or in contemplation of such acquisition), which encumbrance or
restriction is not applicable to any Person, or the properties or assets of any
Person, other than the Person, or the property or assets of the Person, so
acquired, provided,
that, in the case of Indebtedness, such Indebtedness was permitted by the terms
of this Agreement to be incurred.


 


8.4.          Incurrence of Indebtedness and
Issuance of Preferred Stock.


 


(a)           The Company shall not,
and shall not permit any of its Subsidiaries to, directly or indirectly,
create, incur, issue, assume, Guarantee or otherwise become directly or
indirectly liable, contingently or otherwise, with respect to (collectively, “incur”)
any Indebtedness (including Acquired Debt) and the Company shall not issue any
Disqualified Stock and shall not permit any of its Subsidiaries to issue any
shares of preferred stock; provided, however, that the Company and
DFG may incur Indebtedness (including Acquired Debt), and the Guarantors may
guarantee such Indebtedness of DFG, and the Company and DFG may issue shares of
Disqualified Stock, if (i) the Fixed Charge Coverage Ratio for the
Company’s most recently ended four full fiscal quarters for which internal
financial statements are available immediately preceding the date on which such
additional Indebtedness is incurred or such Disqualified Stock is issued (in
either case, the “Incurrence Date”) would have been at least 1.5 to 1
and (ii) the ratio (the “Debt Ratio”) of (A) the aggregate principal
amount of consolidated Indebtedness of the Company and its Subsidiaries
outstanding as of the date of the Company’s most recently ended fiscal quarter
for which internal financial statements are available immediately preceding the
Incurrence Date to (B) the Consolidated Cash Flow of the Company for the
Company’s most recently ended four full fiscal quarters for which internal
financial statements are available immediately preceding the Incurrence Date
would have been less than 5.0 to 1; provided, however, that for the purposes
of calculating the aggregate principal amount of consolidated Indebtedness of
the Company and its Subsidiaries as of any date (i) the aggregate principal
amount of the outstanding Notes as of such date shall be deemed to be the
principal amount thereof as of such date and (ii) the aggregate principal
amount of the Indebtedness outstanding under any revolving credit facility as
of such date shall be deemed to be the daily average amounts outstanding
thereunder during the three months ending on such date.  Each of the foregoing ratios shall be
calculated on a pro forma basis giving effect to (i)(A) the incurrence


 


53

















 


of the Indebtedness or issuance of the Disqualified Stock giving rise
to such calculation, (B) any other incurrence of Indebtedness (other than
revolving credit borrowings) or issuance of Disqualified Stock subsequent to
the commencement of the four-quarter reference period and (C) in each such
case, the application of the net proceeds therefrom as if such incurrence,
issuance and application had occurred at the beginning of the four-quarter
reference period and (ii) any acquisitions that have been made by the Company
or any of its Subsidiaries, including through mergers or consolidations and
including any related financing transactions, during such four-quarter
reference period or subsequent thereto and prior to the Calculation Date as if
they occurred on the first day of such four-quarter reference period.  In addition, the Consolidated Cash Flow for
any such four-quarter reference period shall be calculated (i) to include the
Consolidated Cash Flow of the acquired entities (adjusted to include any
expense or cost reductions for which pro forma treatment would be permitted
under Article 11 of Regulation S-X promulgated under the Securities Act as of
the date of this Agreement), (ii) without giving effect to clause (iii) of
the proviso set forth in the definition of Consolidated Net Income and (iii) to
exclude the Consolidated Cash Flow attributable to discontinued operations, as
determined in accordance with GAAP, and to operations or businesses disposed of
prior to the Calculation Date.  In
calculating the Fixed Charges as of any Calculation Date, the Fixed Charges
attributable to discontinued operations, as determined in accordance with GAAP,
and to operations or businesses disposed of prior to the Calculation Date shall
be excluded, but only to the extent that the obligations giving rise to such
Fixed Charges will not be obligations of the referent Person or any of its
Subsidiaries following the Calculation Date.


 


(b)           The foregoing
provisions shall not apply to (i) the incurrence by DFG (and Guarantees thereof
by the Company and the Guarantors) of Indebtedness for working capital purposes
and letters of credit pursuant to the Credit Agreement (with letters of credit
being deemed to have a principal amount equal to the maximum potential
liability of the Company and its Subsidiaries thereunder) in an aggregate
principal amount not to exceed as of any date of incurrence the lesser of (1) $55,000,000, minus the amount of any
permanent reduction in the amount of borrowings permitted thereunder in
accordance with the terms thereof, and (2) the amount of the Borrowing
Base, (ii) the incurrence by DFG (and Guarantees thereof by the Company
and the Guarantors) of the Indebtedness represented by (1) DFG Senior Notes
issued on the Closing Date in the aggregate principal amount not to exceed
$220,000,000 and (2) DFG Senior Notes issued after the Closing Date pursuant to
the DFG Senior Notes Indenture so long as the Net Proceeds of such issuances
are used, substantially contemporaneously with such issuances, solely to redeem
the Notes and the Subordinated Notes in compliance with the voluntary
redemption provisions of this Agreement and the Subordinated Note Exchange
Agreement, (iii) the incurrence by the Company and its Subsidiaries of the
Existing Indebtedness, (iv) the incurrence by the Company and its Subsidiaries
of the Indebtedness represented by the Notes and the Subordinated Notes, (v)
the incurrence by the Company or any of its Subsidiaries of Indebtedness
represented by Capital Lease Obligations, mortgage financings or purchase money
obligations, in each case, incurred for the purpose of financing all or any
part of the purchase price or cost of construction or improvement of property,
plant or equipment used in the business of the Company or such Subsidiary, in
an aggregate principal amount not to exceed $5,000,000 at any time outstanding,
(vi) the incurrence by the Company or any of its Subsidiaries of Permitted
Refinancing Indebtedness in exchange for, or the net proceeds of which are used
to extend, refinance, renew, replace, defease or refund, Indebtedness that was
permitted by this Agreement to be incurred, (vii) the incurrence by the Company
or any


 


54

















 


of its Subsidiaries of intercompany Indebtedness between or among the
Company and any of its Wholly Owned Subsidiaries; provided, however, that (A)
if the Company is the obligor on such Indebtedness, such Indebtedness is
expressly subordinate to the payment in full of all Obligations with respect to
the Notes and (B)(1) any subsequent issuance or transfer of Equity Interests
that results in any such Indebtedness being held by a Person other than the
Company or a Wholly Owned Subsidiary and (2) any sale or other transfer of
any such Indebtedness to a Person that is not either the Company or a Wholly
Owned Subsidiary shall be deemed, in each case, to constitute an incurrence of
such Indebtedness by the Company or such Subsidiary, as the case may be, (viii)
the incurrence by the Company or any of its Subsidiaries of Hedging Obligations
that are incurred for the purpose of fixing or hedging (A) interest rate risk
with respect to any floating rate Indebtedness that is permitted by the terms
of this Agreement to be outstanding, or (B) currency exchange risk in connection
with existing financial obligations and not for purposes of speculation, (ix)
the incurrence by the Company or any of its Subsidiaries of Indebtedness (in
addition to Indebtedness permitted by any other clause of this paragraph) in an
aggregate principal amount (or accreted value, as applicable) at any time
outstanding not to exceed $10,000,000, (x) the incurrence by the Company or any
of its Subsidiaries of Earn-out Obligations in an aggregate amount not to
exceed $5,000,000 at any time outstanding and (xi) the Incurrence by a
Receivables Subsidiary of Indebtedness in connection with a Qualified
Receivables Transaction that is without recourse (other than pursuant to
representations, warranties, covenants and indemnities entered into in the
ordinary course of business in connection with a Qualified Receivables
Transaction) to DFG or any of its Subsidiaries or any of their respective
assets and that is not Guaranteed by DFG or any of its Subsidiaries.


 


(c)           Notwithstanding any
provision contained in this Section 8.4 to the contrary, after the Closing
Date, neither the Company shall, nor shall it permit any of its Subsidiaries
to, incur any Indebtedness to LGP (other than (i) as a Purchaser and (ii)
solely as a counterparty to any Hedging Obligation) unless such Indebtedness
constitutes Subordinated Indebtedness.


 


(d)           For purposes of
determining compliance with this Section 8.4, in the event that an item of
Indebtedness meets the criteria of more than one of the categories of
Indebtedness described in clauses (i) through (ix) of paragraph (b) of this
Section 8.4, the Company shall, in its sole discretion, classify such item of
Indebtedness in any manner that complies with this Section 8.4 and will only be
required to include the amount and type of such Indebtedness in one of such
clauses or pursuant to Section 8.4(a), and may re-classify any such item of
Indebtedness from time to time among such clauses or the first paragraph of
this Section 8.4, so long as such item meets the applicable criteria for such category.  Accrual of interest, accretion of accreted
value and issuance of securities paid-in-kind shall not be deemed to be an
incurrence of Indebtedness for purposes of this Section 8.4.


 


8.5.          Asset
Sales.


 


(a)           The Company shall not,
and shall not permit any of its Subsidiaries to (i) sell, lease, convey or
otherwise dispose of any assets (including, without limitation, by way of a
sale and leaseback) other than sales of inventory in the ordinary course of
business consistent with past practices (provided,
that the sale, lease, conveyance or other disposition of all or substantially
all of the assets of the Company and its Subsidiaries taken as a whole shall be


 


55

















 


governed by the provisions of Section 7.1 and/or 8.11 hereof and not by
the provisions of this Section 8.5) or (ii) issue or sell Equity Interests of
any of the Company’s Subsidiaries, in the case of either clause (i) or (ii),
whether in a single transaction or a series of related transactions (A) that
have a fair market value in excess of $1,000,000 or (B) for Net Proceeds in
excess of $1,000,000 (each of the foregoing, an “Asset Sale”), unless
(i) the Company (or the Subsidiary, as the case may be) receives
consideration at the time of such Asset Sale at least equal to the fair market
value (evidenced by a resolution of the Board of Directors set forth in an
officers’ certificate delivered to the Holders) of the assets or Equity
Interests issued or sold or otherwise disposed of and (ii) at least 80% of the
consideration therefor received by the Company or such Subsidiary is in the
form of cash; provided, however, that the amount of (A) any
liabilities (as shown on the Company’s or such Subsidiary’s most recent balance
sheet) of the Company or any Subsidiary (other than contingent liabilities and
liabilities that are by their terms subordinated to the Notes) that are assumed
by the transferee of any such assets pursuant to any arrangement releasing the
Company or such Subsidiary from further liability and (B) any notes or other
obligations received by the Company or any such Subsidiary from such transferee
that are immediately converted by the Company or such Subsidiary into cash (to
the extent of the cash received), shall be deemed to be cash for purposes of
this provision.  Notwithstanding the
foregoing, Asset Sales shall not be deemed to include (i) a transfer of assets
by the Company to a Wholly Owned Subsidiary, or by a Wholly Owned Subsidiary of
the Company to the Company or to another Wholly Owned Subsidiary, (ii) the
issuance of Equity Interests by a Wholly Owned Subsidiary to the Company or to
a Wholly Owned Subsidiary, (iii) a Restricted Payment or Permitted Investment
that is permitted by the provisions of Section 8.2 hereof, (iv) the creation
of Permitted Liens and the disposition of assets subject to such Liens by or on
behalf of the Person holding such Liens, (v) the sale of accounts receivable
pursuant to a Qualified Receivables Transaction and (vi) any disposition of
Cash Equivalents.


 


(b)           Within 360 days after
the receipt of any Net Proceeds from an Asset Sale, the Company or any
Subsidiary may apply such Net Proceeds (i) to permanently reduce Indebtedness
ranking, actually or structurally, senior to or pari passu with the Notes
(and to correspondingly reduce commitments with respect thereto) or (ii) to the
acquisition of a controlling interest in another business, the making of a
capital expenditure or the acquisition of other long-term assets, in each case,
in the same or a similar line of business as the Company was engaged in on the
date of this Agreement.  Pending the
final application of any such Net Proceeds, the Company may temporarily reduce
revolving credit Indebtedness under the Credit Agreement or otherwise invest
such Net Proceeds in any manner that is not prohibited by this Agreement.  Any Net Proceeds from Asset Sales that are
not applied or invested as provided in the first sentence of this paragraph
shall be deemed to constitute “Excess Proceeds”.  When the aggregate amount of Excess Proceeds
exceeds $5,000,000, the Company shall make an Asset Sale Offer pursuant to
Section 7.9 hereof to all Holders of the Notes and all holders of the
Subordinated Notes to purchase the maximum principal amount of Notes and
Subordinated Notes that may be purchased out of the Excess Proceeds, at an
offer price in cash in an amount equal to 100% of the principal amount thereof,
plus accrued and unpaid interest and Special Interest, if any, thereon to the
date of purchase, in accordance with the procedures set forth in Section 7.9
hereof.  To the extent that the
aggregate principal amount of the Notes and the Subordinated Notes tendered
pursuant to an Asset Sale Offer is less than the Excess Proceeds, the Company
may use any remaining Excess Proceeds for general corporate purposes.  If the aggregate principal amount of the
Notes and the Subordinated Notes surrendered by Holders of


 


56

















 


Notes and holders of Subordinated Notes, respectively, collectively exceeds
the amount of Excess Proceeds, the Company shall select the Notes and the
Subordinated Notes to be purchased on a pro rata basis.  Upon completion of such offer to purchase,
the amount of Excess Proceeds shall be reset at zero.


 


8.6.          Transactions with Affiliates.  The Company shall not, and shall not permit
any of its Subsidiaries to, make any payment to, or sell, lease, transfer or
otherwise dispose of any of its properties or assets to, or purchase any
property or assets from, or enter into or make or amend any contract,
agreement, understanding, loan, advance or Guarantee with, or for the benefit
of, any Affiliate (each of the foregoing, an “Affiliate Transaction”),
unless (i) such Affiliate Transaction is on terms that are no less
favorable to the Company or the relevant Subsidiary than those that would have
been obtained in a comparable transaction by the Company or such Subsidiary
with an unrelated Person and (ii) the Company delivers to the Holders (A) with
respect to any Affiliate Transaction or series of related Affiliate
Transactions involving aggregate consideration in excess of $1,000,000, a
resolution of the Board of Directors set forth in an Officers’ Certificate
certifying that such Affiliate Transaction complies with clause (i) above and
that such Affiliate Transaction has been approved by a majority of the
disinterested members of the Board of Directors and (B) with respect to any
Affiliate Transaction or series of related Affiliate Transactions involving
aggregate consideration in excess of $5,000,000, an opinion as to the fairness
to the Holders of such Affiliate Transaction from a financial point of view
issued by an accounting, appraisal or investment banking firm of national
standing; provided,
however, that the following shall not be deemed to be Affiliate
Transactions (i) the payment of Earn-out Obligations pursuant to
agreements entered into at such time as the recipient of such payments was not
an Affiliate of the Company or such Subsidiary, (ii) any employment agreement entered
into by the Company or any of its Subsidiaries in the ordinary course of
business and consistent with the past practice of the Company or such
Subsidiary, (iii) transactions between or among the Company and/or its
Subsidiaries, (iv) Restricted Payments and Permitted Investments that are
permitted by the provisions of Section 8.2 hereof, (v) the payment of the fees,
expenses and other amounts payable by the Company and its Subsidiaries in
connection with the Transactions that shall not exceed $13,000,000 and shall be
reasonably consistent with the schedule of fees provided by the Company to the
Purchasers prior to the Closing Date, (vi) the payment of reasonable and
customary regular fees to, and indemnity provided on behalf of, officers,
directors and employees of the Company or any Subsidiary of the Company, (vii)
the payment of fees and other amounts payable by the Company and its
Subsidiaries under the Management Services Agreement (or any agreement
extending or replacing the Management Services Agreement which contains the
same terms with respect to fees and other terms no less favorable to the
Company and its Subsidiaries) and (viii) the performance of any of the
Financing Documents as in effect as of the date of this Agreement or any
transaction contemplated thereby (including pursuant to any amendment thereto
so long as any such amendment is not disadvantageous to the Holders of the
Notes in any material respect). 
Notwithstanding anything in this Agreement to the contrary, neither the
Company nor any of its Subsidiaries shall pay any fees to Leonard Green &
Partners, L.P. or any of its Affiliates (collectively “LGP”): (1) on any
date other than any Interest Payment Date on which the entire interest due on
the Notes on such Interest Payment Date is paid in cash; (2) if a Default or an
Event of Default is then continuing or may result from such payment; or (3) in
the amount on any Interest Payment Date on which payment of such fees is
permitted pursuant to clauses (1) and (2) above in excess of $500,000 plus any
amounts available for such payments, but not paid,


 


57

















 


on prior Interest Payment Dates solely by reason of clauses (1) and/or
(2) above; provided, that in no
event shall the aggregate amount of all such fees paid to LGP from the Closing
Date through and including November 15, 2008 exceed $5,000,000.


 


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


 


8.8.          Limitation on Issuances and Sales of
Capital Stock of Subsidiaries. 
The Company (a) shall not, and shall not permit any Subsidiary of
the Company to, transfer, convey, sell, lease or otherwise dispose of any
Capital Stock of any Subsidiary of the Company to any Person (other than the
Company or a Wholly Owned Subsidiary of the Company), unless (i) such transfer,
conveyance, sale, lease or other disposition is (x) made pursuant to clause
(viii) of the definition of the “Permitted Investments” or (y) of all
the Capital Stock of such Subsidiary and (ii) the Net Proceeds from such
transfer, conveyance, sale, lease or other disposition are applied in
accordance with the provisions of Section 8.5 hereof (without regard, in the
case of the foregoing clause (i)(x), to the provisions of Section 8.5(b)(ii)); provided,
however,
that this clause (a) shall not apply to any pledge of Capital Stock of any
Subsidiary of the Company securing Indebtedness under the Credit Agreement and
(b) shall not permit any Subsidiary of the Company to issue any of its Equity
Interests (other than, if necessary, shares of its Capital Stock constituting
directors’ qualifying shares) to any Person other than to the Company or a
Wholly Owned Subsidiary of the Company.


 


8.9.          Sale and Leaseback Transactions.  The Company shall not, and shall not permit
any of its Subsidiaries to, enter into any sale and leaseback transaction; provided,
however,
that the Company or DFG may enter into a sale and leaseback transaction if (a)
the Company or DFG could have (i) incurred Indebtedness in an amount equal to
the Attributable Debt relating to such sale and leaseback transaction pursuant
to the Fixed Charge Coverage Ratio and Debt Ratio tests set forth in Section
8.4(a) hereof and (ii) incurred a Lien to secure such Indebtedness pursuant to
the provisions of Section 8.7 hereof, (b) the gross cash proceeds of
such sale and leaseback transaction are at least equal to the fair market value
(as determined in good faith by the Board of Directors) of the property that is
the subject of such sale and leaseback transaction and (c) the transfer of
assets in such sale and leaseback transaction is permitted by, and the Company
applies the proceeds of such transaction in compliance with, the provisions of
Section 8.5 hereof.


 


8.10.        Payments for Consents.  Neither the Company nor any of its
Subsidiaries shall, directly or indirectly, pay or cause to be paid any
consideration, whether by way of interest, fee or otherwise, to any Holder of
any Notes in consideration for or as an inducement to any consent, waiver or
amendment of any of the terms or provisions of this Agreement or the Notes
unless such consideration is concurrently offered to be paid or is concurrently
paid to all Holders of the Notes that consent, waive or agree to amend in the
time frame set forth in the solicitation documents relating to such consent,
waiver or agreement.


 


8.11.        Merger,
Consolidation, or Sale of Assets. 
The Company shall not consolidate or merge with or into (whether or not
the Company is the surviving corporation), or


 


58

















 


directly and/or indirectly through its Subsidiaries sell, assign,
transfer, lease, convey or otherwise dispose of all or substantially all of the
properties and assets of the Company and its Subsidiaries taken as a whole in
one or more related transactions, to any other Person unless (a)(i) the Company
is the surviving corporation or (ii) the entity or the Person formed by or
surviving any such consolidation or merger (if other than the Company) or to
which such sale, assignment, transfer, lease, conveyance or other disposition
shall have been made (the entity or Person described in this clause (ii), the “Successor
Company”) is a corporation organized or existing under the laws of the
United States, any state thereof or the District of Columbia, (b) the Successor
Company assumes all the obligations of the Company under the Notes and this
Agreement pursuant an amendment or supplement to this Agreement and each other
instrument, document or agreement entered into by the Company in connection therewith,
in each case in a form reasonably satisfactory to the Required Holders, (c)
immediately after such transaction no Default or Event of Default exists and
(d) the Company or the Successor Company (i) will have Consolidated Net Worth
immediately after the transaction equal to or greater than the Consolidated Net
Worth of the Company immediately preceding the transaction and (ii) will, at
the time of such transaction and after giving pro forma effect thereto as if
such transaction had occurred at the beginning of the applicable four-quarter
period, be permitted to incur at least $1.00 of additional Indebtedness
pursuant to the Fixed Charge Coverage Ratio and Debt Ratio tests set forth in
Section 8.4(a) hereof.


 


8.12.        Successor Company Substituted.  Upon any consolidation of the Company with,
or merger of the Company into, any other Person or any transfer, conveyance,
sale, lease or other disposition of all or substantially all of the properties
and assets of the Company and its Subsidiaries taken as a whole in one or more
related transactions in accordance with Section 8.11, the Successor
Company shall succeed to, and be substituted for, and may exercise every right
and power of, the Company under this Agreement and the Notes with the same
effect as if such Successor Company had been named as the Company herein, and
thereafter, except in the case of a lease, the predecessor Company shall be
relieved of all obligations and covenants under this Agreement and the Notes.


 


SECTION 9.


 


PROVISIONS RELATING TO RESALES OF
SECURITIES


 


9.1.          Private Offerings.  The Company and the Purchasers agree that the following
provisions will apply to any Private Offerings and, in the case of Section
9.16, any resales of the Exchange Notes:


 


(a)           Offers and Sales
only to Institutional Accredited Investors or Qualified Institutional Buyers.  Offers and sales of the Securities will be
made only by the Purchasers or Affiliates thereof qualified to do so in the
jurisdictions in which such offers or sales are made.  Each such offer or sale shall only be made (i) to persons whom
the offeror or seller reasonably believes to be Qualified Institutional Buyers,
(ii) to a limited number of other institutional accredited investors (as such
term is defined in Rule 501(a)(1), (2), (3) or (7) of Regulation D) that the
offeror or seller reasonably believes to be and, with respect to sales and
deliveries, that are Accredited Investors (“Institutional Accredited
Investors”) or (iii) non-U.S. persons outside


 


59

















 


the United States to whom the offeror or seller reasonably believes
offers and sales of the Securities may be made in reliance upon Regulation S
under the Securities Act.


 


(b)           No General
Solicitation.  The Securities will
be offered by approaching prospective Subsequent Purchasers on an individual
basis.  No general solicitation or
general advertising (within the meaning of Rule 502(c) under the Securities
Act) will be used in the United States and no directed selling efforts (as
defined in Regulation S) will be made outside the United States in connection
with the offering of the Securities.


 


(c)           Purchases by
Non-Bank Fiduciaries.  In the case
of a non-bank Subsequent Purchaser of a Securities acting as a fiduciary for
one or more third parties, in connection with an offer and sale to such
purchaser pursuant to Section 9.1, each third party shall, in the judgment of
the applicable Purchaser, be an Institutional Accredited Investor or a
Qualified Institutional Buyer or a non-U.S. person outside the United States.


 


(d)           Restrictions on
Transfer.  Upon original issuance by
the Company, and until such time as the same is no longer required under the
applicable requirements of the Securities Act, the Securities (and all
securities issued in exchange therefor or in substitution thereof, other than
the Exchange Notes) shall bear such legend as is required under Section 10.4 of
this Agreement.


 


(e)           No Future Liability.  Following the sale of the Securities by the
Purchasers to Subsequent Purchasers pursuant to the terms hereof, the
Purchasers shall not be liable or responsible to the Company for any losses,
damages or liabilities suffered or incurred by the Company, including any
losses, damages or liabilities under the Securities Act, arising from or relating
to any resale or transfer of any Securities previously sold by the Purchaser in
compliance with this Section 9.1.


 


9.2.          Offering Memorandum.


 


(a)           At the request of the
Required Holders at any time after the Closing Date, in order to facilitate the
consummation of a Private Offering or any resales by the Purchasers of the
Exchange Notes following the completion of the Exchange Offer, the Company will
prepare and deliver to each Purchaser copies of an Offering Memorandum
describing the terms of the Securities or Exchange Notes proposed to be sold
and of the Offering contemplated by such resales and containing such other
information customarily included in offering memoranda for similar
transactions.  The Offering Memorandum
for any Offering will not, as of its date and as of the closing of such
Offering, include an untrue statement of a material fact or omit to state a
material fact necessary in order to make the statements therein, in the light
of the circumstances under which they were made, not misleading; provided,
however, that the foregoing shall not apply to statements in or
omissions from the Offering Memorandum made in reliance upon and in conformity
with information furnished to the Company in writing by any Purchaser expressly
for use in the Offering Memorandum. 
Without limiting the foregoing, the Offering Memorandum for any Offering
will contain all the information specified in, and meeting the requirements of,
subsection (d)(4) of Rule 144A and all other applicable regulations.  The Company will not distribute any offering
material in connection with any offering and sale of the


 


60

















 


Securities or Exchange Notes other than the Offering Memorandum or any
other offering material required or permitted to be distributed by the
Commission.


 


(b)           Prior to distributing,
amending or supplementing the Offering Memorandum (including any amendment or
supplement effected through incorporation by reference of any report under the
Exchange Act) in connection with any Offering, the Company shall furnish to the
Purchasers for review and comments a copy of each such proposed Offering
Memorandum, or amendment or supplement thereto, and the Company shall not
distribute, use or file the Offering Memorandum or any such proposed amendment
or supplement to which any Purchaser selling Securities or Exchange Notes
pursuant to such Offering Memorandum (each, a “Selling Purchaser”) may
object.


 


(c)           The Offering Memorandum
for any Offering as delivered from time to time shall contain all information
that is required to be included in such Offering Memorandum by the Commission
and that is customarily included in offering materials of such type.


 


9.3.          Amendments and Supplements to the
Offering Memorandum.  If, prior
to the completion of the sale of the Securities or Exchange Notes by the
Purchasers to the Subsequent Purchasers (as evidenced by a notice in writing
from the Purchasers to the Company) in any Offering, any event shall occur or
condition exist as a result of which it is necessary to amend or supplement the
related Offering Memorandum in order to make the statements therein not contain
a misstatement of a material fact or an omission of a material fact required to
make the statements therein, in the light of the circumstances when the
Offering Memorandum is delivered to a Selling Purchaser or a Subsequent
Purchaser and at the closing of the sales of the Securities or Exchange Notes
covered thereby, not misleading or if, in the opinion of the Selling Purchasers
or counsel for the Selling Purchasers, it is otherwise necessary to amend or
supplement the Offering Memorandum to comply with Applicable Law, then the
Company agrees to promptly prepare (subject to Section 9.2 hereof), and furnish
at its own expense to the Selling Purchasers, amendments or supplements to the
Offering Memorandum so that the statements in the Offering Memorandum as so
amended or supplemented will not contain a misstatement of a material fact or
an omission of a material fact required to make the statements therein, in the
light of the circumstances when the Offering Memorandum is delivered to a
Selling Purchaser or a Subsequent Purchaser and at the closing of the sales of
such Securities or Exchange Notes, not misleading or so that the Offering
Memorandum, as amended or supplemented, will comply with Applicable Law.


 


Following the
consummation of the Exchange Offer or the effectiveness of an applicable shelf
registration statement with respect to the Securities and during the period
that the registration statement relating to the Exchange Offer and/or the shelf
registration statement is required to remain effective pursuant to Section 2(a)
and/or 2(b), as applicable, of the Exchange and Registration Rights Agreement
if, in the judgment of any Purchaser, such Purchaser is required to deliver a
prospectus in connection with sales of such securities, the Company agrees (A)
to periodically amend the applicable registration statement so that the
information contained therein complies with the requirements of Section 10(a)
of the Securities Act, (B) to amend the applicable registration statement or
amend or supplement the related prospectus or the documents incorporated
therein when necessary to reflect any material changes in the information
provided therein so that the registration statement and the prospectus will not


 


61

















 


contain any untrue statement of a material fact or omit to state any
material fact required to be included or necessary in order to make the statements
therein, in the light of the circumstances existing as of the date the
prospectus is so delivered, not misleading and (C) to provide such Purchaser
with copies of each amendment or supplement filed and such other documents as
such Purchaser may reasonably request.


 


The Company hereby
expressly acknowledges the indemnification and contribution provisions of
Sections 13.2 and 13.3 hereof are specifically applicable and relate to
each Offering Memorandum and registration statement prepared pursuant to Section
9.2 and this Section 9.3.


 


9.4.          Copies of the Offering Memorandum.  The Company agrees to furnish to the Selling
Purchasers, without charge, as many copies of the Offering Memorandum in
connection with any Offering and any amendments and supplements thereto as they
may reasonably request.


 


9.5.          Blue Sky Compliance.  In connection with any public or private
distribution of the Securities or Exchange Notes, the Company shall cooperate
with the Selling Purchasers and counsel for the Selling Purchasers to qualify
or register the Securities or Exchange Notes, as applicable, for sale under (or
to obtain exemptions from the application of) the Blue Sky or state securities
laws of those jurisdictions designated by the Selling Purchasers, shall comply
with such laws and shall continue such qualifications, registrations and
exemptions in effect so long as required for the distribution of the Securities
or Exchange Notes, as applicable.  The
Company shall not be required to qualify as a foreign corporation or to take
any action that would subject it to general service of process in any such
jurisdiction where it is not then qualified or to taxation as a foreign
corporation.  The Company will advise
the Selling Purchasers promptly of the suspension of the qualification or
registration of (or any such exemption relating to) the Securities or Exchange
Notes for offering, sale or trading in any jurisdiction or any initiation or
threat of any proceeding for any such purpose, and in the event of the issuance
of any order suspending such qualification, registration or exemption, the
Company shall, with the cooperation of the Selling Purchasers, use its best
efforts to obtain the withdrawal thereof at the earliest possible moment.


 


9.6.          Ratings of the Notes.  In connection with any Offering of (a) the
Notes pursuant to the Demand Registration Statement or the Shelf Registration
Statement, (b) the Notes pursuant to any Offering pursuant to Rule 144A in
which a rating is customarily obtained or (c) the Exchange Notes, the Company
shall, at the Company’s expense, if so requested by the Purchasers, take all
reasonable action necessary to enable S&P and Moody’s to provide their
respective credit ratings of the Notes or the Exchange Notes.


 


9.7.          The
Depositary.  The Company will
cooperate with the Purchasers and use its best efforts to permit the Notes or
Exchange Notes, when issued, to be eligible for clearance and settlement
through the facilities of the Depositary.


 


9.8.          Additional Company Information.  For the benefit of holders and beneficial
owners from time to time of Securities or Exchange Notes, the Company shall,
upon the request of any such holder, furnish, at its expense, to holders and
beneficial owners of


 


62

















 


Securities or Exchange Notes and prospective purchasers of such
securities information (“Additional Company Information”) satisfying the
requirements of subsection (d)(4) of Rule 144A.


 


9.9.          Agreement Not to Offer or Sell
Additional Securities.  During
the period of ninety (90) days following the later of (a) the date of the
Offering Memorandum in connection with any Offering pursuant to the Exchange
Offer Registration Statement, Demand Registration Statement, Shelf Registration
Statement, or any Offering of Securities for an aggregate purchase price of at
least $25,000,000 pursuant to Rule 144A in which the application of this
Section 9.9 is necessary in the judgment of a sales agent and (b) the date of
the consummation of such Offering, the Company will not, without the prior
written consent of the Selling Purchasers (which consent may be withheld at the
sole discretion of the Selling Purchasers), directly or indirectly, sell,
offer, contract or grant any option to sell, pledge, transfer or establish an
open “put equivalent position” within the meaning of Rule 16a-1(h) under the
Exchange Act, or otherwise dispose of or transfer, or announce the offering of,
or file any registration statement under the Securities Act in respect of, any
debt securities of the Company or securities exchangeable for or convertible
into debt securities of the Company (other than as contemplated by this
Agreement and other than to register the Exchange Notes) or, in the case of any
Offering of Holdings Notes Shares or Subscription Shares, any Capital Stock of
the Company.


 


9.10.        Exchange and Registration Rights
Agreement.  The Company shall
comply with all provisions and obligations of the Exchange and Registration
Rights Agreement and shall comply with all applicable federal and state
securities laws in connection therewith.


 


9.11.        No
Integration.  The Company agrees
that it will not and (to the extent within its control) it will cause its
Affiliates not to make any offer or sale of securities of any class of the
Company if, as a result of the doctrine of “integration” referred to in Rule
502 under the Securities Act, such offer or sale would render invalid (for the
purpose of (a) the sale of the Securities by the Company to the Purchasers, (b)
the resale of Securities or Exchange Notes by the Purchasers to Subsequent
Purchasers or (c) the resale of Securities or Exchange Notes by such Subsequent
Purchasers to others) any applicable exemption from the registration
requirements of the Securities Act provided by Section 4(2) thereof or by Rule
144A or Regulation S thereunder or otherwise.


 


9.12.        Restriction on Repurchases.  Until the expiration of two years after the
original issuance of the Notes, the Company will not, and will cause its
Affiliates not to, purchase or agree to purchase or otherwise acquire any
shares of Class A Common Stock or any Notes or Exchange Notes which are
“restricted securities” (as such term is defined under Rule 144(a)(3) under the
Securities Act), whether as beneficial owner or otherwise unless, immediately
upon any such purchase, the Company or any Affiliate shall cause such Shares,
Notes or Exchange Notes to be canceled or shall not resell such Notes until the
expiration of such period.


 


9.13.        DTC
Agreement.  The Company will,
promptly following the request of and with the cooperation of the Required
Holders, use its best efforts to cause the Notes or Exchange Notes to be
registered in book-entry form in the name of Cede & Co., as nominee of


 


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The Depository Trust Company (the “Depositary”) pursuant to an
agreement among the Company and the Depositary in the form then required by the
Depositary.


 


9.14.        PORTAL.  The Company will, promptly following the
request of and with the cooperation of the holders of a majority of the
aggregate principal amount of the Notes and Exchange Notes, use its best
efforts to cause the Notes and Exchange Notes to be eligible for the National
Association of Securities Dealers, Inc. PORTAL market (the “PORTAL Market”).


 


9.15.        Form D.  The Company will file with the Commission,
not later than fifteen (15) days after each Closing Date, five copies of a
notice on Form D under the Securities Act (one of which will be manually signed
by a person duly authorized by the Company) with respect to the Securities,
will otherwise comply with the requirements of Rule 503 under the
Securities Act, and will furnish promptly to the Purchasers evidence of each
such required timely filing (including a copy thereof).


 


9.16.        Syndication.


 


(a)           At any time after the
Closing Date, the Company will, if reasonably requested by the Required
Holders, assist the Purchasers in completing any private resale by the
Purchasers of the Securities or any public resale by the Purchasers of the
Exchange Notes or any portion thereof (including any such resales of the
Securities pursuant to any Offering and any resales of the Exchange Notes
following the completion of the Exchange Offer) in accordance with the
Purchasers’ intended method of distribution. 
Such assistance may, in each case, include the following:


 


(i)            the Company’s using
commercially reasonable efforts to ensure that the distribution efforts benefit
materially from the Company’s existing lending relationships;


 


(ii)           direct contact between
the Company’s senior management and advisors and prospective purchasers;


 


(iii)          responding to reasonable
inquiries of, and providing answers to, each prospective purchaser who so
requests concerning the Company and its Subsidiaries (to the extent such
information is available or can be acquired and made available to prospective
purchasers without unreasonable effort or expense and to the extent the
provision thereof is not prohibited by Applicable Law or applicable
confidentiality restrictions) and the terms and conditions of the applicable distribution;


 


(iv)          if requested by the
Required Holders in connection with any Offering, (A) preparing an Offering
Memorandum to the extent required by Sections 9.2 and 9.3 and other materials
to be used in connection with the distribution (including assistance in
completion of the Purchasers’, any sales or placement agent’s, if any, or in
the case of an underwritten offering, the lead managers’ and co-managers’
reasonable due diligence review of the Company and its Subsidiaries as an aid
to such preparation) and (B) complying with the procedures set forth in Section
6(d) of the Exchange and Registration Rights Agreement (other than registration
under the Securities Act of the


 


64

















 


Securities or Exchange Notes being distributed) that
would be applicable to such Offering if such Offering were being made pursuant
to a Shelf Registration Statement;


 


(v)           hosting of one or more
meetings of prospective purchasers; and


 


(vi)          promptly preparing and
providing to the Purchasers (or any sales or placement agent therefor and any
underwriter thereof) all information with respect to the Company, including
projections, as the Purchasers (or any sales or placement agent therefor and
any underwriter thereof) may reasonably request.  Any such projections that will so be made available to the
Purchasers (or each placement or sales agent, if any, therefor and each
underwriter, if any, thereof) by the Company or any of its representatives will
be prepared in good faith based upon reasonable assumptions; provided,
however, that in no event shall the Company be required to give any
representations or warranties with respect to such projections.


 


(b)           The Company will allow
the Required Holders (or any sales or placement agent therefor or, in the case
of an underwritten offering, the lead manager and co-managers thereof, in each
case, as may be selected by the Purchasers and is reasonably acceptable to the
Company), in consultation with the Company, to manage all aspects of the
distribution, including decisions as to the selection of institutions to be
approached and when they will be approached, when their commitment will be
accepted, which institutions will participate, the allocations of the
commitments among the prospective purchasers and the amount and distribution of
fees among the prospective purchasers.


 


9.17.        Exchange
Right.  Upon the request of the
Required Holders at any time or from time to time, the Company will (a)
exchange all or any portion (pro rata among all the Holders) of the outstanding
Notes for any other evidences of indebtedness or debt securities of the Company
(“Replacement Notes”) in the same aggregate principal amount as the then
principal amount of the Notes being exchanged and (b) enter into any such
agreements, whether in the form of an amendment hereto or to any other
Financing Document, an indenture, a note purchase agreement or otherwise (the “New
Documents”) as the Purchaser shall deem necessary or desirable in
connection with a resale of the Notes, whether as a private placement,
registered public offering or otherwise. 
The Replacement Notes will have identical terms as the Notes for which
they are exchanged except for any changes to the relative ranking, interest rate
or yield for such Replacement Notes which shall be approved by all the Holders;
provided,
however, that the aggregate principal amount of all Notes and
Replacement Notes outstanding and the aggregate cash interest and premium
expense to the Company of all Notes and Replacement Notes outstanding after
giving effect to any such exchange shall not exceed such principal amount or
cash interest and premium expense of the Notes and any Replacement Notes
outstanding immediately before such exchange. 
Each Replacement Note shall be subject to the requirements of
Sections 10.6 and 10.7 hereof or, if applicable, the corresponding section
of the Indenture.  Notwithstanding the
foregoing, the New Documents will (a) contain such additional terms and
provisions as are customarily contained in such documents governing the
issuance of debt, including provisions governing the rights of indenture
trustees and/or administrative agents and bank set-off and sharing provisions,
as applicable, and such other additional terms and provisions as are reasonably
requested by the Purchasers in order to effectuate the resale of the
Replacement Notes and (b) be in such form and will contain such terms and
provisions as are necessary to


 


65

















 


comply with all Applicable Laws, including in the case of an indenture
the TIA.  All Notes and Replacement
Notes will vote together as one series on all matters requiring the vote of the
Notes or Replacement Notes except for matters affecting one series of Notes or
Replacement Notes and not affecting another series of Notes or Replacement
Notes.  Unless the context otherwise
requires, all references to the Notes herein includes the Replacement Notes and
all references to the Purchasers herein includes any trustee for any indenture
pursuant to which the Replacement Notes are issued.


 


SECTION 10.


 


THE NOTES


 


10.1.        Form
and Execution.  The Notes shall
be in the form of Exhibit A hereto.  The Notes shall be executed on behalf of the Company by its
President or one of its Vice Presidents, under its corporate seal reproduced
thereon attested by its Secretary or one of its Assistant Secretaries.  The signature of any of these officers on
the Notes may be manual or facsimile.


 


Notes bearing the manual
or facsimile signatures of individuals who were at any time the proper officers
of the Company shall bind the Company, notwithstanding that such individuals or
any of them have ceased to hold such offices prior to the authentication and
delivery of such Notes or did not hold such offices at the date of such Notes.


 


10.2.        Terms
of the Notes.  The terms of the
Notes shall be as set forth in Exhibit A.  Without limiting the foregoing:


 


(a)           Stated Maturity.  The Stated Maturity of the Notes shall
be:  May 15, 2012.


 


(b)           Interest.  The Notes will bear interest and Special
Interest, if any, on their principal amount and overdue interest and Special
Interest as provided in Exhibit A.


 


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


 


10.3.        Denominations.  The Notes shall be issuable only in
registered form without coupons and only in denominations of U.S. $1,000 and
any multiple thereof.


 


10.4.        Form of Legend for the Notes.  Unless otherwise permitted by
Section 10.7, every Note issued and delivered hereunder shall bear a
legend in substantially the following form:


 


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THE SECURITY REPRESENTED BY THIS CERTIFICATE HAS NOT BEEN REGISTERED
UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR QUALIFIED UNDER APPLICABLE
STATE SECURITIES LAWS.  SUCH SHARES MAY
BE OFFERED, SOLD OR TRANSFERRED ONLY IN COMPLIANCE WITH THE REQUIREMENTS OF
SUCH ACT AND OF ANY APPLICABLE STATE SECURITIES LAWS AND SUBJECT TO THE
PROVISIONS OF THE EXCHANGE AGREEMENT, DATED AS OF NOVEMBER 13, 2003, BETWEEN
DFG HOLDINGS, INC., GS MEZZANINE PARTNERS, L.P., GS MEZZANINE PARTNERS
OFFSHORE, L.P., STONE STREET FUND 1998, L.P., BRIDGE STREET FUND 1998, L.P.,
ARES LEVERAGED INVESTMENT FUND, L.P., AND ARES LEVERAGED INVESTMENT FUND II,
L.P.  A COPY OF SUCH NOTE EXCHANGE
AGREEMENT IS AVAILABLE AT THE OFFICES OF THE COMPANY.


 


10.5.        Payments and Computations.  All payments of interest on the Notes shall
be paid to the persons in whose names such Notes are registered on the Security
Register at the close of business on the Regular Record Date and all payments
of principal on the Notes shall be paid to the persons in whose names such
Notes are registered at Maturity.  The
principal of (or Default Amount in respect thereof) and any premium on any Note
shall be payable only against surrender therefor, while payments of interest on
Notes shall be made, in accordance with this Agreement and subject to
applicable laws and regulations, by check mailed on or before the due date for
such payment to the person entitled thereto at such person’s address appearing
on the Security Register (or, in the case of a Holder holding not less than
$1,000,000 aggregate principal amount of Notes, by wire transfer to such
account as such Holder shall designate by written instructions received by the
Company no less than fifteen (15) days prior to any applicable Interest Payment
Date, which wire instruction shall continue in effect until such time as the
Holder otherwise notifies the Company or such Holder no longer is the
registered owner of such Note or Notes).


 


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


 


10.6.        Registration,
Registration of Transfer and Exchange.


 


(a)           Security Register.  The Company shall maintain a register (the “Security
Register”) for the registration or transfer of the Notes.  The name and address of the Holder of each
Note, records of any transfers of the Notes and the name and address of any
transferee of a Note shall be entered in the Security Register and the Company
shall, promptly upon receipt thereof, update the Security Register to reflect
all information received from a Holder. 
There shall be no more than one Holder for each Note, including all
beneficial interests therein.  The
Company shall also enter in the Security Register the amount of any Capitalized
Interest added to the principal amount of the Note on any Interest Accrual Date
but failure to do so shall not affect the accrual or the enforceability of a
claim with respect to such Capitalized Interest.


 


(b)           Registration of
Transfer.  Upon surrender for
registration of transfer of any Note at the office or agency of the Company,
the Company shall execute and deliver, in the name of the designated transferee
or transferees, one or more new Notes, of any authorized denominations and like
aggregate principal amount.


 


67

















 


(c)           Exchange.  At the option of the Holder, Notes may be
exchanged for other Notes, of any authorized denominations and of like
aggregate principal amount, upon surrender of the Notes to be exchanged at such
office or agency.  Whenever any Notes
are so surrendered for exchange, the Company shall execute and deliver the
Notes which the Holder making the exchange is entitled to receive.


 


(d)           Effect of
Registration of Transfer or Exchange. 
All Notes issued upon any registration of transfer of exchange of Notes
shall be the valid obligations of the Company, evidencing the same debt, and
entitled to the same benefits under this Agreement, as the Notes surrendered
upon such registration of transfer or exchange.


 


(e)           Requirements;
Charges.  Every Note presented or
surrendered for registration of transfer or for exchange shall (if so required
by the Company) be duly endorsed, or be accompanied by a written instrument of
transfer in form satisfactory to the Company duly executed, by the Holder
thereof or his attorney duly authorized in writing.  No service charge shall be made for any registration of transfer
or exchange of Notes, but the Company may require payment of a sum sufficient to
cover any tax or other governmental charge that may be imposed in connection
with any registration of transfer or exchange of Notes, other than exchanges
pursuant to Section 8.11 not involving any transfer.


 


(f)            Certain Limitations.  If the Notes are to be redeemed in part, the
Company shall not be required (i) to issue, register the transfer of or
exchange any Note during a period beginning at the opening of business fifteen
(15) days before the day of the mailing of a notice of redemption of any
such Notes selected for redemption under Section 12.2 and ending at the
close of business on the day of such mailing or (ii) to register the
transfer of or exchange any Note so selected for redemption in whole or in
part, except the unredeemed portion of any Note being redeemed in part.


 


10.7.        Transfer Restrictions.


 


(a)           No Note may be sold,
transferred or otherwise disposed of (any such sale, transfer or other
disposition is herein referred to as a “sale”), except (i) upon
consummation of the Exchange Offer, (ii) upon registration of the resales of
the Notes as contemplated by the Exchange and Registration Rights Agreements or
(iii) in compliance with this Section 10.7. 
A pledge by any Holder of a Note shall not constitute a sale unless and
until such pledge is realized upon.


 


(b)           A Holder may sell Notes
to a transferee that is an Accredited Investor or a Qualified Institutional
Buyer; provided,
however, that each of the following conditions is satisfied:


 


(i)            such Holder or
transferee represents that it is acquiring the Note or Notes for its own
account and that it is not acquiring such Note or Notes with a view to, or for
offer or sale in connection with, any distribution thereof (within the meaning
of the Securities Act) that would be in violation of the securities laws of the
United States or any state thereof, but subject, nevertheless, to the
disposition of its property being at all times within its control; and


 


68

















 


(ii)           such transferee agrees
to be bound by the provisions of this Section 10.7 with respect to any resale
of the Notes.


 


(c)           A Holder may sell its
Notes to a transferee in accordance with Regulation S under the Securities
Act; provided,
however,
that each of the following conditions is satisfied:


 


(i)            if such Holder would
be deemed to be the Company, a distributor or any of their respective
affiliates or any person acting on behalf of any of the foregoing for purposes
of Regulation S under the Securities Act:


 


(A)          the Company is a
“reporting issuer” as such term is defined in Rule 902(l) under the Securities
Act;


 


(B)           any distributor (as
defined in Rule 902(c) under the Securities Act) involved in a sale of Notes
has agreed in writing that all offers and sales of Notes shall be made only in
accordance with the provisions of Rule 903 or Rule 904 under the
Securities Act;


 


(C)           all offering materials
and documents (other than press releases) used in connection with offers and
sales of the Notes shall conform to the requirements of Rule 902(h)(2) under
the Securities Act; and


 


(D)          each distributor (as
defined in (2) above) selling Notes to a distributor, dealer (as defined in
Section 2(12) of the Securities Act), or a person receiving a selling
concession, fee or other remuneration in respect of the Notes sold sends a
confirmation or other notice to the purchaser stating that the purchaser is
subject to the same restrictions on offers and sales that apply to a
distributor prescribed by Regulation S under the Securities Act.


 


(ii)           if such exercise and/or
sale by a Holder is not governed by (i) above:


 


(A)          the offer of Notes is
not made to a person in the United States;


 


(B)           either:


 


(1)           at the time the buy
order is originated, the transferee is outside the United States or the Holder
and any person acting on its behalf reasonably believes that the transferee is
outside the United States, or


 


(2)           the transaction is
executed in, on or through the facilities of a designated offshore securities
market and neither the Holder nor any person acting on its behalf knows that
the transaction was pre-arranged with a buyer in the United States;


 


69

















 


(C)           no directed selling
efforts are made in contravention of the requirements of Rule 903(b) or 904(b)
of Regulation S under the Securities Act, as applicable; and


 


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


 


(d)           In the event of a
proposed exercise or sale that does not qualify under either Section 10.7(b) or
10.7(c) above, a Holder may sell its Notes only if:


 


(i)            such Holder gives
written notice to the Company of its intention to exercise or effect such sale,
which notice (A) shall describe the manner and circumstances of the
proposed transaction in reasonable detail and (B) shall designate the
counsel for such Holder, which counsel shall be reasonably satisfactory to the
Company;


 


(ii)           counsel for the Holder
shall render an opinion, to the effect that such proposed sale may be effected
without registration under the Securities Act or under applicable Blue Sky
laws; and


 


(iii)          such Holder or
transferee complies with Sections 10.7(b)(i) and 10.7(b)(ii).


 


10.8.        Mutilated,
Destroyed, Lost and Stolen Notes. 
If any mutilated Note is surrendered to the Company, the Company shall
execute and deliver in exchange therefor a new Notes of the same principal
amount and bearing a number not contemporaneously outstanding.


 


If there shall be
delivered to the Company (a) evidence to its satisfaction of the
destruction, loss or theft of any Note and (b) such security or indemnity
as may be required by then to save each of it and any agent harmless, then, in
the absence of notice that such Note has been acquired by a bona fide
purchaser, the Company shall execute and deliver, in lieu of any such
destroyed, lost or stolen Note, a new Note of a like principal amount and
bearing a number not contemporaneously outstanding.


 


In case any such
mutilated, destroyed, lost or stolen Note has become or is about to become due
and payable, the Company in its discretion may, instead of issuing a new Note,
pay such Note.


 


Upon the issuance of any
new Note this Section, the Company may require the payment of a sum sufficient
to cover any tax or other governmental charge that may be imposed in relation
thereto and any other expenses connected therewith.


 


Every new Note issued
pursuant to this Section in lieu of any destroyed, lost or stolen Note shall
constitute an original additional contractual obligation of the Company,
whether or not the destroyed, lost or stolen Note shall be at any time
enforceable by anyone, and shall be entitled to all the benefits of this
Agreement equally and proportionately with any and all other Notes duly issued
hereunder.


 


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The provisions of this
Section are exclusive and shall preclude (to the extent lawful) all other
rights and remedies with respect to the replacement or payment of mutilated,
destroyed, lost or stolen Notes.


 


10.9.        Persons Deemed Owners.  Prior to due presentment of a Note for
registration of transfer, the Company and any agent of the Company may treat
the Person in whose name such Note is registered as the owner of such Note for
the purpose of receiving payment of principal of and interest on such Note and
for all other purposes whatsoever, whether or not such Note be overdue and
neither the Company nor any agent of the Company shall be affected by notice to
the contrary.


 


10.10.      Cancellation.  All Notes surrendered for payment,
redemption, registration of transfer or exchange shall, if surrendered to any
Person other than the Company, be delivered to the Company and shall be
promptly canceled by it.  The Company
shall cancel any Notes previously issued and delivered hereunder which the
Company may have reacquired.


 


10.11.      Home
Office Payment.  So long as any
Purchaser or its nominee shall be the holder of any Note, and notwithstanding
anything contained in this Agreement or such Note to the contrary, the Company
will pay all sums becoming due on such Note for principal, premium, if any, and
interest by such method and at such address as such Purchaser shall have from
time to time specified to the Company in writing for such purpose, without the
presentation or surrender of such Note or the making of any notation thereon,
except that upon written request of the Company made concurrently with or
reasonably promptly after payment or prepayment in full of any Note, such
Purchaser shall surrender such Note for cancellation reasonably promptly after
any such request, to the Company at its principal executive office.  Prior to any sale or other disposition of
any Note held by such Purchaser or its nominee such Purchaser will, at its
election, either endorse thereon the amount of principal paid thereon and the
last date to which interest has been paid thereon or surrender such Note to the
Company in exchange for a new Note or Notes pursuant to Section 10.6.  The Company will afford the benefits of this
Section 10.11 to any Institutional Investor that is the direct or indirect
transferee of any Note purchased by such Purchaser under this Agreement and
that has made the same agreement relating to such Note as such Purchaser made
in this Section 10.11.


 


SECTION 11.


 


EVENTS OF DEFAULT


 


11.1.        Events
of Default.  An Event of Default
shall exist upon the occurrence of any of the following specified events (each
an “Event of Default”):


 


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


 


(b)           the Company defaults in
the payment when due of principal of or premium, if any, on the Notes when the
same becomes due and payable at its Maturity;


 


(c)           the Company fails to
comply with any of the provisions of Section 7.7, 7.8, 7.9 or 8.2 through 8.12,
inclusive, hereof;


 


71

















 


(d)           the Company fails to
observe or perform any other covenant or other agreement in this Agreement or
the Notes and such failure continues for a period of thirty (30) days
after the Company has received a notice of such failure from any Holder, which
notice must specify the failure, demand that it be remedied and state that the
notice is a “Notice of Default”;


 


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


 


(f)            a default occurs under
any mortgage, indenture or instrument under which there may be issued or by
which there may be secured or evidenced any Indebtedness for money borrowed by
the Company or any of its Subsidiaries (or payment of which is Guaranteed by
the Company or any of its Subsidiaries), whether such Indebtedness or Guarantee
now exists, or is created after the date of this Agreement, which default (i)
constitutes a failure to pay any portion of the principal of or premium, if
any, or interest on such Indebtedness when due and payable after the expiration
of any applicable grace period provided in such Indebtedness on the date of
such default (a “Payment Default”) or (ii) shall have resulted in such
Indebtedness being accelerated or otherwise becoming or being declared due and
payable prior to its stated maturity and, in each case, the principal amount of
any such Indebtedness, together with the principal amount of any other such
Indebtedness under which there has been a Payment Default or the maturity of
which has been so accelerated, aggregates $5,000,000 or more;


 


(g)           a final judgment or
final judgments for the payment of money are entered by a court or courts of
competent jurisdiction, or a final and legally enforceable arbitration award or
final and legally enforceable arbitration awards for the payment of money are
entered pursuant to a binding arbitration by an arbitrator or arbitrators of
competent jurisdiction, in each case, against the Company or any of its
Subsidiaries and such judgment or judgments remain unpaid and undischarged for
a period (during which execution shall not be effectively stayed) of sixty (60)
days, provided that the aggregate of all such undischarged judgments and awards
exceeds $5,000,000;


 


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


 


(i)            commences a voluntary
case or proceeding,


 


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


 


72

















 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


11.2.        Remedies.  If an Event of Default (other than an Event
of Default specified in Section 11.1(h)) occurs and is continuing, then
and in every such case the Holders of (a) more than 50% in principal
amount of the Notes at the time outstanding until the earlier of (i) the
Exchange Offer having been consummated by the Company or (ii) a
registration statement permitting the resales of the Notes having been declared
effective by the Commission and (b) thereafter, 25% or more in principal
amount of the then outstanding Notes may declare the Default Amount of all the
Notes to be due and payable immediately, by a notice in writing to the Company,
and upon any such declaration such Default Amount and any accrued interest and
Special Interest, if any, shall become immediately due and payable.  If an Event of Default specified in
Section 11.1(h) occurs and is continuing, the Default Amount of and any
accrued interest and Special Interest, if any, on the outstanding Notes shall
automatically, and without any declaration or other action on the part of any
Holder, become immediately due and payable.


 


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The “Default Amount”
of any Note as of any date of acceleration shall be all principal of, accrued
and unpaid interest on, any premium on, and all other amounts owning in respect
of, the Note.


 


If a default in the
payment when due of interest on (including any Special Interest), principal of,
or premium, if any, on, the Notes or if an Event of Default has occurred and is
continuing, then in each case the Notes will accrue interest at 2% per annum
plus the stated interest rate on the Notes until such time as no such Default
or such Event of Default shall be continuing (to the extent that the payment of
such interest shall be legally enforceable).


 


At any time after such a
declaration of acceleration has been made and before a judgment or decree for
payment of the money due has been obtained, the Holders of a majority in
principal amount of the outstanding Notes, by written notice to the Company,
may rescind and annul such declaration and its consequences if:


 


(a)           the Company has paid a
sum sufficient to pay


 


(i)            all overdue interest
and Special Interest on all Notes;


 


(ii)           the principal of, and
premium, if any, on, any Notes which have become due otherwise than by such
declaration of acceleration (including any Notes required to have been
purchased pursuant to an offer to purchase that the Company is required to make
hereunder) and any interest, Special Interest and overdue interest thereon at
the rate borne by the Notes; and


 


(iii)          to the extent that
payment of such interest is lawful, interest upon overdue interest and overdue
Special Interest at the rate provided therefor in the Notes;


 


and


 


(b)           all Events of Default,
other than the nonpayment of the Default Amount of Notes which have become due
solely by such declaration of acceleration, have been cured or waived as
provided in Section 11.3.


 


11.3.        Waiver of Past Defaults.  The Required Holders may on behalf of the
Holders of all the Notes waive any past default hereunder and its consequences,
except a default:


 


(a)           in the payment of the
principal of (or Default Amount in respect thereof), or any premium or interest
or Special Interest on, any Note (including any Note which is required to have
been purchased pursuant to an offer to purchase that the Company is required to
make hereunder); or


 


(b)           in respect of a
covenant or provision hereof which under Section 14.4 cannot be modified
or amended without the consent of the Holder of each outstanding Note affected.


 


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 Agreement;


 


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provided, however, no such waiver shall extend to any subsequent or
other default or impair any right consequent thereon.


 


11.4.        Subordination of Special Mandatory
Redemption.  (a) Until all
Indebtedness under the Credit Documents has been finally paid in full, all
commitments thereunder have been terminated and any contingent Indebtedness
thereunder has been fully cash collateralized, any payment obligation or
payment arising from or in respect of a Special Mandatory Redemption shall be
made only to the extent that the making of such Special Mandatory Redemption
has been approved in writing by the required holders of the Indebtedness under
the Credit Documents, which approval may be granted or denied in the sole and
absolute discretion of such holders, and which approval, if given, may be
withdrawn by written notice to the Company at any time prior to the date
specified for the Special Mandatory Redemption.  Each Holder acknowledges by its acceptance of its Notes that any
failure by the Company to make any Special Mandatory Redemption shall not
result in the occurrence of a Default or an Event of Default, nor serve as a
basis for exercise of remedies consequent upon a Default or Event of Default or
otherwise, unless such holders of the Indebtedness under the Credit Agreement
has given (and not withdrawn) its prior written approval to the making of such
Special Mandatory Redemption.  Each
Holder further agrees by its acceptance of its Notes that it will not take any
action inconsistent with the rights of the holders of Indebtedness under the
Credit Documents to receive payment in full of any amounts owing under the
Credit Documents prior to the making of any Special Mandatory Redemption by the
Company.  The provisions of this Section
11.4 apply only to a Special Mandatory Redemption and shall not be construed to
affect any other rights of the Holders under this Agreement.


 


(b)           No right of any present
or future holder of Indebtedness under the Credit Documents to enforce the
provisions of this Section 11.4 shall be impaired by any act or failure to act
by the Company, any Holder or by the failure of any such holder of Indebtedness
under the Credit Documents to give any notices or take any actions contemplated
by this Agreement or otherwise.  No
provision of any waiver or supplemental indenture may affect in any way the
rights of the holders of Indebtedness under the Credit Documents without the
prior written consent of such holders.


 


(c)           In the event that, notwithstanding
the foregoing, the Holders of the Notes shall have received any Special
Mandatory Redemption not permitted by this Section 11.4, then and in such event
such Special Mandatory Redemption shall be paid over and delivered forthwith to
the holders of Indebtedness under the Credit Agreement in the same form
received and, until so turned over, the same shall be held in trust by the
Company on behalf of the Holders, or by such Holders, as the collateral of the
holders of Indebtedness under the Credit Documents.  Only after the payment in full in cash or Cash Equivalents of all
amounts due or to become due on or in respect of Indebtedness under the Credit
Documents and, unless the holders of Indebtedness under the Credit Documents
shall have the ability to terminate such commitments, the termination of all
commitments in respect thereof, the Holders of the Notes shall be subrogated to
the rights of the Holders of Indebtedness under the Credit Documents to receive
payments and distributions of cash, property and securities applicable to such
Indebtedness until the amount of the Special Mandatory Redemption shall be paid
in full.  For purposes of such
subrogation, no payments or distributions to the holders of the Indebtedness
under the Credit Documents of any cash, property or securities to which the
Holders of the Notes or the Company on their behalf


 


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would be entitled except for the provisions of this Section 11.4, and
no payments pursuant to the provisions of this Section 11.4 to the holders of
Indebtedness under the Credit Documents by Holders of the Notes or the Company
on their behalf, shall, as among the Company, its creditors other than holders
of Indebtedness under the Credit Documents and the Holders of the Notes, be
deemed to be a payment or distribution by the Company to or on account of the
Special Mandatory Redemption.  Each
Holder of a Note, by accepting such Note, acknowledges and agrees that the
provisions of this Section 11.4 are, and are intended to be, an inducement and
a consideration to each holder of any Indebtedness under the Credit Documents,
whether such Indebtedness was created or acquired before or after the issuance
of the Notes, to acquire and continue to hold, or to continue to hold, such
Indebtedness, and such holder of such Indebtedness shall be deemed conclusively
to have relied on such provisions in acquiring and continuing to hold, or in
continuing to hold, such Indebtedness. 
The Company shall not be deemed to owe any fiduciary duty to the holders
of Indebtedness under the Credit Documents and shall not be liable to any such
holders if it shall mistakenly pay over or distribute to Holders or the Company
or any other Person, money or assets to which any holders of Indebtedness of
the Company under the Credit Documents shall be entitled by virtue of this
Section 11.4 or otherwise.  The
provisions of this Section 11.4 (including the defined terms used herein) are
for the benefit of the holders of Indebtedness under the Credit Documents and
shall be enforceable by them directly against any Holder and may not be amended
without the consent of the administrative agent under the Credit Agreement or,
in the absence thereof, the holders holding the majority in principal amount of
such Indebtedness.


 


SECTION 12.


 


REDEMPTION


 


12.1.        Right
of Redemption.  The Notes may be
redeemed at the election of the Company at such times, in such amounts and at
the Redemption Prices (together with any applicable accrued interest and any
Special Interest to the Redemption Date) specified in the form of Note attached
as Exhibit A hereto.


 


12.2.        Partial Redemptions.  In case the Company elects to redeem less
than all of the Notes, the Company shall redeem the Notes pro rata from each
Holder. For all purposes of this Agreement, unless the context otherwise
requires, all provisions relating to the redemption of Notes shall relate, in
the case of any Notes redeemed or to be redeemed only in part, to the portion
of the principal amount of such Notes which has been or is to be redeemed.


 


12.3.        Notice of Redemption.  Notice of redemption shall be given by
first-class mail, postage prepaid, mailed not less than thirty (30) nor more
than sixty (60) days prior to the Redemption Date, to each Holder of Notes to
be redeemed, at his address appearing in the Security Register.


 


All notices of redemption
shall state:


 


(a)           the Redemption Date;


 


(b)           the Redemption Price;


 


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(c)           if less than all the
Outstanding Notes are to be redeemed, the portion of each Note to be redeemed;


 


(d)           that on the Redemption
Date the Redemption Price will become due and payable upon each such Note to be
redeemed and that interest , Capitalized Interest, if applicable, and any
Special Interest thereon will cease to accrue on and after said date; and


 


(e)           the place or places
where such Notes are to be surrendered for payment of the Redemption Price.


 


Notice of redemption of
Notes to be redeemed at the election of the Company shall be given by the Company
and at the expense of the Company.


 


12.4.        Deposit of Redemption Price.  Prior to any Redemption Date, the Company
shall segregate and hold in trust an amount of money sufficient to pay the
Redemption Price of, and (except if the Redemption Date shall be an Interest
Payment Date) any applicable accrued interest and Special Interest on, all the
Notes which are to be redeemed on that date.


 


12.5.        Notes Payable on Redemption Date.  If notice of redemption shall have been
given as provided above, the Notes so to be redeemed shall, on the Redemption
Date, become due and payable at the Redemption Price therein specified, and
from and after such date (unless the Company shall default in the payment of
the Redemption Price and any applicable accrued interest and Special Interest)
such Notes shall not bear interest. Upon surrender of any such Note for
redemption in accordance with said notice, such Note shall be paid by the
Company at the Redemption Price, together with any applicable accrued interest
and Special Interest to the Redemption Date; provided, however, that
installments of interest or Special Interest whose Stated Maturity is on or
prior to the Redemption Date shall be payable to the Holders of such Notes, or
one or more Predecessor Notes, registered as such at the close of business on
the relevant Regular Record Dates according to their terms and the provisions
of this Agreement.


 


If any Note called for
redemption shall not be so paid upon surrender thereof for redemption, the
principal (and premium, if any) shall, until paid, bear interest from the
Redemption Date at the rate provided by the Note.


 


12.6.        Notes Redeemed in Part.  Any Note which is to be redeemed only in
part shall be surrendered at the principal offices of the Company (with, if the
Company so requires, due endorsement by, or a written instrument of transfer in
form satisfactory to the Company duly executed by, the Holder thereof or his
attorney duly authorized in writing), and the Company shall execute and deliver
to the Holder of such Note without service charge, a new Note or Notes, of any
authorized denomination as requested by such Holder, in aggregate principal
amount equal to and in exchange for the unredeemed portion of the principal of
the Note so surrendered.


 


12.7.        Application of Redemption Payments.  The Company may not deliver a notice of
redemption pursuant to Section 12.3 unless, concurrently therewith, a similar
notice of redemption is delivered to the holders of the Subordinated Notes
calling for a redemption of the same portion of the Subordinated Notes as the
notice of redemption delivered pursuant to Section 


 


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12.3.  Notwithstanding the
foregoing, at any time at or prior to December 31, 2005, any Holder at its sole
discretion may, with respect to any optional redemption, so long as any
Subordinated Notes are then outstanding, elect by written notice provided to
the Company at least five (5) Business Days prior to the relevant Redemption
Date, not to have all or any amount of any such redemption applied to such
Holder’s Notes, in which case the aggregate amount so declined shall be applied
to the redemption of the Subordinated Notes, provided,
however, that to the extent that the aggregate principal amount of
the Subordinated Notes (after giving effect to such optional redemption) is
less than the aggregate amount of Notes so declined by the Holders, such amount
so declined shall be allocated between the declining Holders of the Notes pro
rata based on the aggregate amount declined by each such Holder, and such
amount as so applied shall be used to redeem Notes.


 


SECTION 13.


 


EXPENSES, INDEMNIFICATION AND
CONTRIBUTION


 


13.1.        Expenses.  Whether or not the transactions contemplated
hereby are consummated, the Company will pay all costs and expenses (including
reasonable and documented attorneys’ and accountants’ fees and disbursements)
incurred by the Purchasers or any holder of a Security or Exchange Note in
connection with the Transactions and in connection with any amendments, waivers
or consents under or in respect of this Agreement, the Financing Documents or
the Notes (whether or not such amendment, waiver or consent becomes effective),
including, without limitation (a) the Purchaser’s reasonable and documented
out-of-pocket expenses in connection with the Purchaser’s examinations and
appraisals of the Company’s properties, books and records, (b) the costs and
expenses incurred in enforcing, defending or declaring (or determining whether
or how to enforce, defend or declare) any rights or remedies under this
Agreement, the Financing Documents or the Notes or Exchange Notes or in
responding to any subpoena or other legal process or informal investigative
demand issued in connection with this Agreement, the Financing Documents or the
Notes, or by reason of being a holder of any Security or Exchange Note and (c)
the costs and expenses, including reasonable and documented consultants’ and
advisors’ fees, incurred in connection with the insolvency or bankruptcy of the
Company or any Subsidiary of the Company or in connection with any work-out or
restructuring of the transactions contemplated hereby, by the Financing
Documents or by the Notes.  The Company
will pay, and will save the Purchasers and each other holder of a Security harmless
from, all claims in respect of any fees, costs or expenses if any, of brokers
and finders in relation to the Transactions.


 


13.2.        Indemnification.


 


(a)           Indemnification by
the Company.  The Company agrees to
indemnify and hold harmless (i) each Purchaser and each Person who participates
as a placement or sales agent or as an underwriter in any Offering, including
but not limited to Goldman, Sachs & Co., (ii) each Person, if any, who
controls (within the meaning of Section 15 or Section 20 of the Exchange Act)
any such Person referred to in clause (i) (any of the Persons referred to in
this clause (ii) being referred to herein as a “Controlling Person”) and
(iii) the respective officers, directors, managing directors, stockholders,
partners, employees, representatives, trustees, fiduciaries and agents of any
Person referred to in clause (i) or any such Controlling Person (any


 


78

















 


such Person referred to in clause (i), (ii) or (iii), a “Purchaser
Indemnified Person”) against any losses, claims, damages or liabilities,
joint or several, to which such Purchaser Indemnified Person may become
subject, under the Securities Act or otherwise, insofar as such losses, claims,
damages or liabilities (or actions in respect thereof) arise out of or are
based upon (i) any untrue statement or alleged untrue statement of a material
fact contained in any Offering Memorandum, or any amendment or supplement
thereto, or arise out of or are based upon the omission or alleged omission to
state therein a material fact necessary to make the statements therein, not
misleading, (ii) in whole or in part upon any inaccuracy in any of the
representations and warranties of the Company contained herein or in any other
Financing Document as of the date hereof or on and as of the Closing Date as if
made on such date, (iii) in whole or in part upon any failure of the Company to
perform its obligations hereunder, under any other Financing Document or under
Applicable Law, including any violation of Applicable Law resulting from any
Offering, (iv) any act or failure to act or any alleged act or failure to act
by any Purchaser Indemnified Person in connection with, or relating in any
manner to, each Offering contemplated hereby, and which is included as part of
or referred to in any loss, claim, damage or liability (or actions in respect
thereof) arising out of or based upon any matter covered by clause (i) above,
(v) the failure of any of the consolidated balance sheets included in the
Company Financial Statements (including the related notes and schedules) to
fairly represent the consolidated financial position of the Company and its
Subsidiaries as of its date, or failure of any of the consolidated statements
of income, stockholders’ equity and cash flows of the Company and its
Subsidiaries included in the Company Financial Statements (including any
related notes and schedules) to fairly represent the results of operations and
income, retained earning and stockholders’ equity or cash flows, as the case
may be, of the Company and its Subsidiaries for the periods set forth therein,
in each case in accordance with GAAP consistently applied during the periods
involved, except as may be noted therein and subject in the case of any interim
financial statements, to normal year-end adjustments that are not material in
amount or effect, (vi) any change in the financial condition, operations,
business, properties or prospects of the Company and its Subsidiaries during
the period from the Audit Date to the Closing Date, inclusive, that,
individually or in the aggregate, has had or could reasonably be expected to
have a Material Adverse Effect that has not been disclosed in writing to the
Purchaser Indemnified Persons or (vii) the Transactions or the Purchasers’ financing
thereof, and will reimburse each such Purchaser Indemnified Person for any
legal and other expenses reasonably incurred by such Purchaser Indemnified
Person in connection with investigating or defending any such action or claims
as such expenses are incurred; provided, however, that the Company shall
not be liable in any such case to the extent that any such loss, claim, damage
or liability arises out of or is based upon any untrue statement or alleged
untrue statement or omission or alleged omission made in any Offering
Memorandum, or any amendment or supplement thereto, in reliance upon and in
conformity with written information furnished to the Company by such Purchaser
Indemnified Person expressly for use therein. 
The indemnity agreement set forth in this Section 13.2(a) shall be in
addition to any liabilities that the Company may otherwise have.


 


(b)           Indemnification by
the Purchasers.  Each Purchaser
agrees, severally and not jointly, to indemnify and hold harmless (i) the
Company, (ii) each Controlling Person of the Company and (iii) the respective
officers, directors, employees, representatives and agents of the Company or
any such Controlling Person (any such Person referred to in clause (i), (ii) or
(iii), a “Company Indemnified Person”) against any losses, claims,
damages or liabilities, joint or several, to which such Company Indemnified
Person may become subject, under the Securities


 


79

















 


Act or otherwise insofar as such losses, claims, damages or liabilities
(or actions in respect thereof) arise out of or are based upon any untrue or
alleged untrue statement of a material fact contained in any Offering
Memorandum, or any amendment or supplement thereto, or arise out of or are
based upon the omission or alleged omission to state therein a material fact
necessary to make the statements therein not misleading, in each case to the
extent, but only to the extent, that such untrue statement or alleged untrue
statement or omission or alleged omission was made in any Offering Memorandum,
or any amendment or supplement thereto, in reliance upon and in conformity with
written information furnished to the Company by such Purchaser expressly for
use therein; and will reimburse the Company Indemnified Persons for any legal
and other expenses reasonably incurred by the Company Indemnified Persons in
connection with investigating or defending any such actions or claims as such
expenses are incurred; provided, however, that the liability of
any Purchaser pursuant to this clause 13.2(b) shall not exceed the net proceeds
that such Purchaser receives in any sale of the Notes or Exchange Notes
pursuant to the Offering in which such Offering Memorandum was delivered.  The indemnity agreement set forth in this
Section 13.2(b) shall be in addition to any liabilities that each Purchaser may
otherwise have.


 


(c)           Notifications and
Other Indemnification Procedures. 
Promptly after receipt by a Purchaser Indemnified Person or a Company
Indemnified Person (each, an “Indemnified Person”) of notice of the
commencement of any action, such Indemnified Person shall, if a claim in
respect thereof is to be made against an indemnifying party under Section
13.2(a) or 13.2(b), as applicable, notify such indemnifying party in writing of
the commencement thereof, but the omission so to notify the indemnifying party
will not relieve it from any liability which it may have to any Indemnified
Person otherwise than under Section 13.2(a) or 13.2(b), as applicable, or to
the extent it is not prejudiced as a proximate result of such failure.  In case any such action is brought against
any Indemnified Person and it shall notify an indemnifying party of the
commencement thereof, the indemnifying party will be entitled to participate
therein and, to the extent that it shall elect within thirty (30) days after
receiving any such notification, jointly with any other indemnifying party
similarly notified, to assume the defense thereof, with counsel satisfactory to
such Indemnified Person (who shall not, except with the consent of the
Indemnified Person, which consent shall not be unreasonably withheld, be
counsel to the indemnifying party), and, after notice from the indemnifying
party to such Indemnified Person of its election so to assume the defense thereof,
the indemnifying party shall not be liable to such Indemnified Person under
such paragraph for any legal expenses of other counsel or any other expenses,
in each case subsequently incurred by such Indemnified Person, in connection
with the defense thereof other than reasonable costs of investigation.  Notwithstanding the foregoing, any
Indemnified Person shall have the right to employ separate counsel in any such
action and participate in the defense thereof, but the fees and expenses of
such counsel shall be at the expense of the Indemnified Person unless the
Indemnified Person shall have been advised by counsel that representation of
the Indemnified Person by counsel provided by the indemnifying party would be
inappropriate due to actual or potential conflicting interests between the
indemnifying party and the Indemnified Person, including situations in which
there are one or more legal defenses available to the Indemnified Person that
are different from or additional to those available to the indemnifying party; provided,
however, that the indemnifying party shall not, in connection with
any one such action or proceeding or separate but substantially similar actions
or proceedings arising out of the same general allegations, be liable for the
fees and expenses of more than one separate firm of attorneys at any time for
all


 


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Indemnified Persons, except to the extent that local counsel, in
addition to their regular counsel, is required in order to effectively defend
against such action or proceeding.  No
indemnifying party shall, without the written consent of the Indemnified
Person, effect the settlement or compromise of, or consent to the entry of any
judgment with respect to, any pending or threatened action or claim in respect
of which indemnification or contribution may be sought hereunder (whether or
not the Indemnified Person is an actual or potential party to such action or
claim) unless such settlement, compromise or judgment (i) includes an unconditional
release of the Indemnified Person from all liability arising out of such action
or claim and (ii) does not include a statement as to or an admission of fault,
culpability or a failure to act, by or on behalf of any Indemnified Person.


 


13.3.        Contribution.  If the indemnification provided for in
Section 13.2 is unavailable to or insufficient to hold harmless an Indemnified
Person under paragraph (a), (b) or (c) of Section 13.2 in respect of any
losses, claims, damages or liabilities (or actions in respect thereof) referred
to therein, then each indemnifying party shall contribute to the amount paid or
payable by such Indemnified Person as a result of such losses, claims, damages
or liabilities (or actions in respect thereof) in such proportion as is
appropriate to reflect the relative fault of the indemnifying party on the one
hand and the Indemnified Person on the other in connection with the statements
or omissions which resulted in such losses, claims, damages or liabilities (or
actions in respect thereof), as well as any other relevant equitable
considerations.  The relative fault
shall be determined by reference to, among other things, whether the untrue or
alleged untrue statement of a material fact or the omission or alleged omission
to state a material fact relates to information supplied by the indemnifying
party on the one hand or the Indemnified Person on the other and the parties’
relative intent, knowledge, access to information and opportunity to correct or
prevent such statement or omission.  The
parties agree that it would not be just and equitable if contributions pursuant
to this Section 13.3 were determined by pro rata allocation (even if the
Indemnified Persons were treated as one entity for such purpose) or by any
other method of allocation which does not take account of the equitable
considerations referred to above in this Section 13.3.  The amount paid or payable by an Indemnified
Person as a result of the losses, claims, damages or liabilities (or actions in
respect thereof) referred to above in this Section 13.3 shall be deemed to
include any legal or other expenses reasonably incurred by such Indemnified
Person in connection with investigating or defending any such action or
claim.  Notwithstanding the provisions
of this Section 13.3, no Purchaser shall be required to contribute any amount
which, when taken together with any amounts paid by such Purchaser under
Section 13.2(b) exceeds the net proceeds that such Purchaser receives in any
sale of the Notes or Exchange Notes pursuant to any Offering.  No person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the Securities Act)
shall be entitled to contribution from any person who was not guilty of such
fraudulent misrepresentation.


 


The obligations of the
Company and the Purchasers under this Section 13.3 shall be in addition to any
liability which the Company and the respective Purchasers may otherwise have.


 


13.4.        Survival.  The obligations of the Company under this
Section 13 will survive the payment or transfer of any Note or Exchange Note,
the transfer of any Subscription Shares, the enforcement, amendment or waiver
of any provision of this Agreement and the termination of this Agreement.


 


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SECTION 14.


 


MISCELLANEOUS


 


14.1.        Notices.  Except as otherwise expressly provided
herein, all notices and other communications shall have been duly given and
shall be effective (a) when delivered, (b) when transmitted via
telecopy (or other facsimile device) to the number set out below if the sender
on the same day sends a confirming copy of such notice by a recognized
overnight delivery service (charges prepaid), (c) the day following the
day on which the same has been delivered prepaid to a reputable national
overnight air courier service or (d) the third Business Day following the day
on which the same is sent by certified or registered mail, postage prepaid, in
each case to the respective parties at the address set forth below, or at such
other address as such party may specify by written notice to the other party
hereto:


 


(a)           if to a GSMP Purchaser
or its nominee, to the Purchaser or its nominee at the address specified for
such communications in Schedule A, with a copy to Fried, Frank, Harris,
Shriver & Jacobson, One New York Plaza, New York, New York 10004,
attention:  Arthur S. Kaufman, or at
such other address as the Purchaser or its nominee shall have specified to the
Company in writing;


 


(b)           if to Ares, to it at
1999 Avenue of the Stars, Suite 1900, Los Angeles, California 90025,
attention:  Jeff Serota, with a copy to
Fried, Frank, Harris, Shriver & Jacobson, One New York Plaza, New York, New
York 10004, attention:  Arthur S. Kaufman
or at such other address as Ares shall have specified to the Company in
writing;


 


(c)           if to any other Holder
of any Note, to such Holder at the address of such Holder appearing in the
Security Register or such other address as such other holder shall have
specified to the Company in writing; or


 


(d)           if to the Company, to the
Company at 1436 Lancaster Avenue, Berwyn, Pennsylvania 19312, attention: Chief
Executive Officer, President and Chief Financial Officer, with a copy to LGP,
c/o Leonard Green & Partners, L.P., 11111 Santa Monica Boulevard, Suite
2000, Los Angeles, California 90025, attention:  Jonathan Seiffer and Irell & Manella LLP, 1800 Avenue of the
Stars, Suite 900, Los Angeles, California 90067, attention:  Anthony T. Iler or at such other address as
the Company shall have specified to the holder of each Security in writing.


 


14.2.        Benefit of Agreement; Assignments
and Participations.  Except as
otherwise expressly provided herein, all covenants, agreements and other
provisions contained in this Agreement by or on behalf of any of the parties
hereto shall bind, inure to the benefit of and be enforceable by their
respective successors and assigns (including, without limitation, any
subsequent holder of a Note or Exchange Note) whether so expressed or not; provided,
however, that the Company may not assign and transfer any of its
rights or obligations without the prior written consent of the other parties
hereto and each such holder.  For
greater certainty, the parties hereto acknowledge and agree that that the term
“Purchasers” shall include only the Purchasers named in the preamble to this
Agreement and their Affiliates who may own the Securities from time to time and
shall not include any other subsequent Holders.


 


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Nothing in this Agreement
or in the Notes or Exchange Notes, express or implied, shall give to any Person
other than the parties hereto, their successors and assigns and the holders
from time to time of the Notes or Exchange Notes any benefit or any legal or
equitable right, remedy or claim under this Agreement.


 


14.3.        No Waiver; Remedies Cumulative.  No failure or delay on the part of any party
hereto or any Holder in exercising any right, power or privilege hereunder or
under the Notes or Exchange Notes and no course of dealing between the Company
and any other party or Holder shall operate as a waiver thereof; nor shall any
single or partial exercise of any right, power or privilege hereunder or under
the Notes or Exchange Notes preclude any other or further exercise thereof or
the exercise of any other right, power or privilege hereunder or thereunder.
The rights and remedies provided herein and in the Notes and Exchange Notes are
cumulative and not exclusive of any rights or remedies which the parties or
Holders would otherwise have. No notice to or demand on the Company in any case
shall entitle the Company to any other or further notice or demand in similar
or other circumstances or constitute a waiver of the rights of the other
parties hereto or the Holders to any other or further action in any circumstances
without notice or demand.


 


14.4.        Amendments,
Waivers and Consents.  This
Agreement may be amended, and the observance of any term hereof may be waived
(either retroactively or prospectively) with (and only with) the written
consent of the Company and the Required Holders; provided, however,
that no such amendment or waiver may, without the prior written consent of the
Holder of each Note and Exchange Note then outstanding and affected thereby (a)
subject any Holder to any additional obligation, (b) reduce the principal
of (or Default Amount in respect thereof), or any premium or rate of interest
or Special Interest on, any Note or Exchange Note, (c) postpone the date
fixed for any payment of principal of (or Default Amount in respect thereof), or
any premium or interest or Special Interest on, any Note or Exchange Note,
(d) change the ranking or priority of the Notes or the percentage of the
aggregate principal amount of the Notes the Holders of which shall be required
to consent or take any other action under this Section 14.4 or any other
provision of this Agreement and (e) amend or waive the provisions of
Sections 7.7, 7.9 or 8.5 or any of the definitions used in such Sections;
and, provided, further, however,
that no such amendment or waiver may, without the prior written consent of
Ares, so long as Ares owns any Notes, amend or waive the provisions of Sections
7.8 (to the extent such provisions related to the Non-Voting Observer), 8.10,
12.2 and 12.7.  No amendment or waiver
of this Agreement will extend to or affect any obligation, covenant, agreement,
Default or Event of Default not expressly amended or waived or thereby impair
any right consequent thereon.  As used
herein, the term this “Agreement” and references thereto shall mean this
Agreement as it may from time to time be amended or supplemented.


 


14.5.        Counterparts.  This Agreement may be executed in any number
of counterparts, each of which when so executed and delivered shall be an
original, but all of which shall constitute one and the same instrument.  It shall not be necessary in making proof of
this Agreement to produce or account for more than one such counterpart.  Each counterpart may consist of a number of
copies hereof, each signed by less than all, but together signed by all, of the
parties hereto.


 


83

















 


14.6.        Reproduction.  This Agreement, the other Transaction
Documents and all documents relating, hereto and thereto, including, without
limitation, (a) consents, waivers and modifications that may hereafter be
executed, (b) documents received by the Purchasers at the Closing (except the
Notes themselves) and (c) financial statements, certificates and other
information previously or hereafter furnished in connection herewith, may be reproduced
by any photographic, photostatic, microfilm, microcard, miniature photographic
or other similar process and any original document so reproduced may be
destroyed.  The Company agrees and
stipulates that, to the extent permitted by Applicable Law, any such
reproduction shall be admissible in evidence as the original itself in any
judicial or administrative proceeding (whether or not the original is in
existence and whether or not such reproduction was made in the regular course
of business) and any enlargement, facsimile or further reproduction of such
reproduction shall likewise be admissible in evidence.  This Section 14.06 shall not prohibit the
Company, any other party hereto or any holder of Notes from contesting any such
reproduction to the same extent that it could contest the original, or from
introducing evidence to demonstrate the inaccuracy of any such reproduction.


 


14.7.        Headings.  The headings of the sections and subsections
hereof are provided for convenience only and shall not in any way affect the
meaning or construction of any provision of this Agreement.


 


14.8.        Survival of Covenants and Indemnities.  All covenants and indemnities set forth
herein shall survive the execution and delivery of this Agreement, the issuance
of the Notes and Exchange Notes, and, except as otherwise expressly provided
herein with respect to covenants, the payment of principal of the Notes and the
Exchange Notes and any other obligations hereunder.


 


14.9.        Governing Law; Submission to
Jurisdiction; Venue.


 


(a)           THIS AGREEMENT AND THE
NOTES SHALL BE CONSTRUED AND ENFORCED IN ACCORDANCE WITH, AND THE RIGHTS OF THE
PARTIES SHALL BE GOVERNED BY, THE LAW OF THE STATE OF NEW YORK, EXCLUDING
CHOICE-OF-LAW PRINCIPLES OF THE LAW OF SUCH STATE THAT WOULD REQUIRE THE
APPLICATION OF THE LAWS OF A JURISDICTION OTHER THAN SUCH STATE.


 


(b)           If any action,
proceeding or litigation shall be brought by any Purchaser or any holder of a
Security in order to enforce any right or remedy under this Agreement or any of
the Notes, the Company hereby consents and will submit, and will cause each of
its Subsidiaries to submit, to the jurisdiction of any state or federal court
of competent jurisdiction sitting within the area comprising the Southern
District of New York on the date of this Agreement. The Company hereby
irrevocably waives any objection, including, but not limited to, any objection
to the laying of venue or based on the grounds of forum non conveniens,
which it may now or hereafter have to the bringing of any such action,
proceeding or litigation in such jurisdiction. 
The Company further agrees that it shall not, and shall cause its
Subsidiaries not to, bring any action, proceeding or litigation arising out of
this Agreement or the Notes in any state or federal court other than any state
or federal court of competent jurisdiction sitting within the area comprising
the Southern District of New York on the date of this Agreement.


 


84

















 


(c)           The Company hereby
irrevocably designates CT Corporation System at an address in New York City
designated at the Closing as the designee, appointee and agent of the Company
to receive, for and on behalf of the Company, service of process in such
jurisdiction in any action, proceeding or litigation with respect to this
Agreement, the Notes, the Management Options or any of the other Transaction
Documents.  It is understood that a copy
of such process served on such agent will be promptly forwarded by mail to the
Company at its address set forth opposite its signature below, but the failure
of the Company to have received such copy shall not affect in any way the
service of such process. The Company further irrevocably consents to the
service of process of any of the aforementioned courts in any such action,
proceeding or litigation by the mailing of copies thereof by registered or
certified mail, postage prepaid, to the Company at its said address, such
service to become effective thirty (30) days after such mailing.


 


(d)           Nothing herein shall
affect the right of any holder of a Security to serve process in any other
manner permitted by law or to commence legal proceedings or otherwise proceed
against the Company in any other jurisdiction. 
If service of process is made on a designated agent it should be made by
either (i) personal delivery or (ii) mailing a copy of summons and complaint to
the agent via registered or certified mail, return receipt requested.


 


(e)           THE COMPANY HEREBY WAIVES ANY AND ALL
RIGHTS IT MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY ACTION, PROCEEDING OR
LITIGATION DIRECTLY OR INDIRECTLY ARISING OUT OF, UNDER OR IN CONNECTION WITH,
THIS AGREEMENT OR ANY OF THE SECURITIES.


 


14.10.      Severability.  If any provision of this Agreement is
determined to be illegal, invalid or unenforceable, such provision shall be
fully severable to the extent of such illegality, invalidity or
unenforceability and the remaining provisions shall remain in full force and
effect and shall be construed without giving effect to the illegal, invalid or
unenforceable provisions.


 


14.11.      Entirety.  This Agreement together with the other
Transaction Documents represents the entire agreement of the parties hereto and
thereto, and supersedes all prior agreements and understandings, oral or
written, if any, relating to the Transaction Documents or the transactions
contemplated herein or therein.


 


14.12.      Survival of Representations and
Warranties.  All representations
and warranties made by the Company herein shall survive the execution and
delivery of this Agreement, the issuance and transfer of all or any portion of
the Notes or Exchange Notes, and the payment of principal of the Notes and the
Exchange Notes and any other obligations hereunder issuance and delivery of the
Notes hereunder, regardless of any investigation made at any time by or on
behalf of the Purchasers or any other holder that is Affiliated with the
Purchasers.  All statements contained in
any certificate delivered by or on behalf of the Company pursuant to this
Agreement shall be deemed representations and warranties of the Company under
this Agreement.


 


14.13.      Construction.  Each covenant contained herein shall be
construed (absent express provision to the contrary) as being independent of
each other covenant contained herein, so that compliance with any one covenant
shall not (absent such an express contrary provision)


 


85

















 


be deemed to excuse compliance with any other covenant.  Where any provision herein refers to action
to be taken by any Person, or which such Person is prohibited from taking, such
provision shall be applicable whether such action is taken directly or
indirectly by such Person, whether or not expressly specified in such
provision.


 


14.14.      Incorporation.  All Exhibits and Schedules attached hereto
are incorporated as part of this Agreement as if fully set forth herein.


 


86

















 


IN WITNESS WHEREOF, each of the parties hereto has
caused a counterpart of this Agreement to be duly executed and delivered as of
the date first above written.


 


 


	
   

  	
  DFG HOLDINGS, INC.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Jeffrey Weiss

  	
   

  
	
   

  	
   

  	
  Name: Jeffrey Weiss

  
	
   

  	
   

  	
  Title: CEO

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  GS MEZZANINE PARTNERS, L.P.

  
	
   

  	
   

  
	
   

  	
  By:

  	
    GS Mezzanine Advisors, L.L.C., its
  general partner

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Katherine B. Enquist

  	
   

  
	
   

  	
   

  	
  Name: Katherine B. Enquist

  
	
   

  	
   

  	
  Title: Vice President

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  GS MEZZANINE PARTNERS OFFSHORE, L.P.

  
	
   

  	
   

  
	
   

  	
  By:

  	
    GS Mezzanine Advisors, L.L.C., its
  general partner

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Katherine B. Enquist

  	
   

  
	
   

  	
   

  	
  Name: Katherine B. Enquist

  
	
   

  	
   

  	
  Title: Vice President

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  STONE STREET FUND 1998, L.P.

  
	
   

  	
   

  
	
   

  	
  By:

  	
    Stone Street 1998, L.L.C., its general
  partner

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Katherine B. Enquist

  	
   

  
	
   

  	
   

  	
  Name: Katherine B. Enquist

  
	
   

  	
   

  	
  Title: Vice President

  



 


87

















 


	
   

  	
  BRIDGE STREET FUND 1998, L.P.

  
	
   

  	
   

  
	
   

  	
  By:

  	
    Stone Street 1998, L.L.C., its general
  partner

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Katherine B. Enquist

  	
   

  
	
   

  	
   

  	
  Name: Katherine B. Enquist

  
	
   

  	
   

  	
  Title: Vice President

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  ARES LEVERAGED INVESTMENT FUND, L.P.

  
	
   

  	
   

  
	
   

  	
  By:

  	
    ARES Management, L.P.

  
	
   

  	
   

  
	
   

  	
  By:

  	
    ARES Operating Member, LLC, its general
  partner

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Jeff Serota

  	
   

  
	
   

  	
   

  	
  Name: Jeff Serota

  
	
   

  	
   

  	
  Title: Vice President

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  ARES LEVERAGED INVESTMENT FUND II, L.P.

  
	
   

  	
   

  
	
   

  	
  By:

  	
    ARES Management II, L.P.

  
	
   

  	
   

  
	
   

  	
  By:

  	
    ARES Operating Member II, LLC, its
  general partner

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Jeff Serota

  	
   

  
	
   

  	
   

  	
  Name: Jeff Serota

  
	
   

  	
   

  	
  Title: Vice President

  



 


88

















 


EXHIBIT
A


 


[Form of Face of Note]


 


THE
SECURITY REPRESENTED BY THIS CERTIFICATE HAS NOT BEEN REGISTERED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED, OR QUALIFIED UNDER APPLICABLE STATE
SECURITIES LAWS.  SUCH SHARES MAY BE
OFFERED, SOLD OR TRANSFERRED ONLY IN COMPLIANCE WITH THE REQUIREMENTS OF SUCH
ACT AND OF ANY APPLICABLE STATE SECURITIES LAWS AND SUBJECT TO THE PROVISIONS
OF THE EXCHANGE AGREEMENT, DATED AS OF NOVEMBER 13, 2003, BETWEEN DFG HOLDINGS,
INC., GS MEZZANINE PARTNERS, L.P., GS MEZZANINE PARTNERS OFFSHORE, L.P., STONE
STREET FUND 1998, L.P., BRIDGE STREET FUND 1998, L.P., ARES LEVERAGED INVESTMENT
FUND, L.P., AND ARES LEVERAGED INVESTMENT FUND II, L.P.  A COPY OF SUCH NOTE EXCHANGE AGREEMENT IS
AVAILABLE AT THE OFFICES OF THE COMPANY.


 


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


 


This debt instrument is issued at original
issue discount.


 


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


 


16% SENIOR NOTES DUE 2012


 


 


	
  No.
                    

  	
   

  	
  $                  

  



 


DFG Holdings, Inc., a corporation duly organized and
existing under the laws of Delaware (herein called the “Company”, which term
includes any successor Person under the Agreement), for value received, hereby
promises to pay
to                              ,
or registered assigns, the principal sum of
                                  
Dollars on May 15, 2012, and to pay interest thereon from
[                       ]*,
or from the most recent Interest Payment Date to which interest has been paid
or duly provided for, semi-annually in arrears on May 15 and November 15 in
each year commencing
[                        ]**
and, if different, the date of the Stated Maturity of this Note (the “Interest
Payment Dates”) at the rate of 16% per annum, until the principal hereof is
paid or made available for payment.  All
interest payable with respect to this Note shall be paid in cash; provided,
that on any Interest Payment Date on or prior to November 15, 2008 (each, an
“Interest Accrual Date”), the Company, at its option, shall have the right to
capitalize all or a portion of interest payable on this Note for the period
ended on such Interest Accrual Date, as principal, in lieu of paying in cash
such interest so capitalized, and to add such capitalized interest to the
principal amount of this Note (such capitalized interest shall be referred to
as the “Capitalized Interest”); and provided, further, that if (a) a
registration statement under


 


 












*              The
issue date.


**           Interest
Payment Date next succeeding the issue date.


 


1

















 


the Securities Act of 1933, as amended (the “Securities Act”),
registering this Note for resale (a “Resale Registration Statement”)
shall not have been filed with the Securities and Exchange Commission (the “Commission”)
or a registration statement under the Securities Act (the “Exchange Offer
Registration Statement”) registering a note substantially identical to this
Note (an “Exchange Note”) pursuant to an exchange offer (the “Exchange
Offer”) upon the terms and conditions set forth in the Exchange and
Registration Rights Agreement, dated November 13, 2003 (the “Exchange and
Registration Rights Agreement”), among the Company and GS Mezzanine
Partners, L.P., GS Mezzanine Partners Offshore, L.P., Stone Street Fund 1998,
L.P., Bridge Street Fund 1998, L.P., Ares Leveraged Investment Fund, L.P. and
Ares Leveraged Investment Fund II, L.P. (collectively, the “Purchasers”),
shall not have been filed with the Commission, in each case by the date which
is 45 days after the date on which a written request therefor by the Purchasers
in accordance with the terms of the Exchange and Registration Rights Agreement
(the “Request Date”), (b) the Resale Registration Statement has not
become or been declared effective by the date which is 120 days after the
Request Date or the Exchange Offer Registration Statement has not been declared
effective by the date which is 120 days after the Request Date, (c) the
Exchange Offer has not been consummated within 45 business days after the
initial effective date of the Exchange Offer Registration Statement (if the
Exchange Offer is then required to be made) or (d) any Resale Registration
Statement or Exchange Offer Registration Statement required by Section 2(a) or
2(b) of the Exchange and Registration Rights Agreement is filed and declared
effective but shall thereafter cease to be effective or usable for transfers of
Notes during the periods referred to in such Section 2(a) or 2(b), as
applicable, without being succeeded immediately by an additional registration
statement filed and declared effective (each such event referred to in clauses
(a) through (d), a “Registration Default”), then the Company shall pay,
in addition to the interest provided for above, cash interest on the principal
amount of this Note (“Special Interest”) to the Holder hereof in an
amount equal to 0.5% per annum, which amount shall increase to 1.0% per annum
after the first 120-day period following the occurrence of the first
Registration Default, for the period from and including the date of occurrence
of the first Registration Default until such time as no Registration Default is
in effect (after which such Special Interest shall cease to be payable).  Accrued Special Interest shall be paid
semi-annually on the Interest Payment Dates; and the amount of accrued Special
Interest shall be determined on the basis of the number of days actually
elapsed.  Upon the issuance of an Exchange
Note in exchange for this Note, any accrued and unpaid interest (including
Special Interest) on this Note shall cease to be payable to the Holder hereof
but such accrued and unpaid interest (including Special Interest) shall be
payable on the next Interest Payment Date for such Exchange Note to the Holder
thereof on the related regular record date. 
The interest so payable, and punctually paid or duly provided for, on
any Interest Payment Date will, as provided in the Exchange Agreement, be paid
to the Person in whose name this Note (or one or more Predecessor Notes) is
registered at the close of business on the May 1 or November 1 (whether or not
a Business Day), as the case may be, next preceding such Interest Payment Date
(the “Regular Record Dates”).


 


If a default in the payment when due of interest on
(including any Special Interest), principal of, or premium, if any, on this
Note or if an Event of Default has occurred and is continuing, then in each
case this Note will accrue interest at 2% per annum plus the stated interest
rate on this Note until such time as no such default or such Event of Default
shall be continuing (to the extent that the payment of such interest shall be
legally enforceable).  Default Interest
on Principal shall be payable on demand. 
Any Default Interest on Principal that is not


 


2

















 


paid on demand shall bear interest (which shall also be payable on
demand) at 2% per annum plus the stated interest rate on this Note (to the extent
that the payment of such interest is legally enforceable), from the date of
such demand until the amount so demanded is paid or made available for payment.


 


Payment of the principal of (or Default Amount in
respect thereof), and any premium and any such interest or Special Interest on
this Note will be made at the principal place of business of the Company, 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; provided, however, that at
the option of the Company payment of interest and Special Interest may be made
by check mailed to the address of the Person entitled thereto as such address
shall appear in the Security Register.


 


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 if set forth at this place.


 


IN WITNESS WHEREOF, the Company has caused this
instrument to be duly executed under its corporate seal.


 


	
  Dated:

  	
   

  
	
   

  	
   

  
	
   

  	
  DFG HOLDINGS, INC.

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
  Name:

  
	
   

  	
  Title:

  



 


3

















 


[Form of Reverse of Note]


 


This Note is one of a duly authorized issue of Notes
of the Company designated as its 16% Senior Notes Due 2012 (herein called the
“Notes”), limited in aggregate principal amount to $49,351,422.48, issued and
to be issued pursuant to the Exchange Agreement, dated as of November 13, 2003
(herein called the “Exchange Agreement”), among the Company, GS
Mezzanine Partners, L.P., GS Mezzanine Partners Offshore, L.P., Stone
Street Fund 1998, L.P., Bridge Street Fund 1998, L.P., Ares Leveraged
Investment Fund, L.P. and Ares Leveraged Investment Fund II, L.P.
(collectively, the “Purchasers”), to which Exchange Agreement and all
amendments thereto reference is hereby made for a statement of the respective
rights, limitations of rights, duties and immunities thereunder of the Company
and the Holders of the Notes and of the terms upon which the Notes are, and are
to be, issued and delivered.


 


The Notes are subject to redemption, upon not less
than 30 nor more than 60 days’ notice by mail, as a whole or in part, at
any time on or after November 13, 2003 at the election of the Company, at the
following Redemption Prices (expressed as percentages of the sum (the “Current
Accretion Amount”) of (x) the principal amount being redeemed plus (y) all
accrued and unpaid interest to the Redemption Date that is permitted to be
capitalized on the next succeeding Interest Payment Date (such principal amount
and accrued interest to be computed daily to the Redemption Date)):  If redeemed during the 12-month period
beginning January 1 of the years indicated,


 


	
  Year

  	
   

  	
  Redemption
  Price

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  From the Closing through 

  December 31, 2004:

  	
   

  	
  112.500

  	
  %

  
	
  2005:

  	
   

  	
  110.000

  	
  %

  
	
  2006:

  	
   

  	
  107.500

  	
  %

  
	
  2007:

  	
   

  	
  105.000

  	
  %

  
	
  2008:

  	
   

  	
  102.500

  	
  %

  
	
  2009 and thereafter:

  	
   

  	
  100.000

  	
  %

  



 


, together in the case of any such redemption with accrued interest
that is required to be payable in cash on the next succeeding Interest Payment
Date and any Special Interest to the Redemption Date, but interest installments
whose Stated Maturity is on or prior to such Redemption Date will be payable to
the Holders of such Notes, or one or more Predecessor Notes, of record at the
close of business on the relevant Regular Record Dates referred to on the face
hereof, all as provided in the Exchange Agreement.


 


If less than all the Notes are to be redeemed, the
Notes shall be redeemed pro rata from each Holder.


 


The Notes do not have the benefit of any sinking fund
obligations.


 


If the aggregate amount which would be includible in
gross income for federal income tax purposes with respect to the Notes before
any Interest Payment Date occurring after


 


1

















 


the fifth (5th) anniversary of the Closing Date (the “Aggregate
Inclusion”) exceeds an amount equal to the sum of (x) the aggregate amount
of interest paid in cash under the Notes before such Interest Payment Date and
(y) the product of the issue price of all of the Notes (as determined under
United States Treasury Regulation Section 1.1273-2(a)) multiplied by 16.67%
(the sum of (x) and (y), the “Adjusted Actual Payment”), the Company
shall, on such Interest Payment Date, make a mandatory prepayment (any such
prepayment a “Special Mandatory Redemption”) on the Notes, with the
premium calculated in accordance with the second paragraph of the reverse of
this Note, to the extent that the Aggregate Inclusion exceeds the Adjusted
Actual Payment.


 


In the event of redemption or purchase pursuant to an
offer to purchase of this Note in part only, a new Note or Notes for the
unredeemed or unpurchased portion hereof will be issued in the name of the
Holder hereof upon the cancellation hereof.


 


If an Event of Default shall occur and be continuing,
the Default Amount of the Notes may be declared due and payable in the manner
and with the effect provided in the Exchange Agreement.  The Default Amount of this Note as of any
date of acceleration shall be all principal of, accrued and unpaid interest on,
any premium on, and all other amounts owning in respect of, this Note, in each
case plus any accrued but unpaid interest or Special Interest to such
date.  Upon payment of (i) the Default
Amount so declared due and payable and any overdue installment of interest,
(ii) any overdue principal and premium payable upon redemption or
repurchase of this Note, and (iii) as provided on the face hereof,
interest on any overdue principal of (or Default Amount in respect thereof),
and any premium, interest and Special Interest on, this Note (in each case to
the extent that the payment of such interest shall be legally enforceable), all
of the Company’s obligations in respect of the payment of the principal of, and
interest and Special Interest on, the Notes shall terminate.


 


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


 


The Exchange Agreement provides that, subject to
certain conditions, if (i) certain Excess Proceeds are available to the
Company as a result of Asset Sales or (ii) a Change of Control occurs the
Company shall be required to make an Offer to Purchase for all or a specified
portion of the Notes.


 


The Exchange Agreement permits, with certain
exceptions as therein provided, the amendment thereof and the modification of
the rights and obligations of the Company and certain rights of the Holders of
the Notes under the Exchange Agreement at any time by the Company with the
consent of the Required Holders.  The
Exchange Agreement also contains provisions permitting the Holders of specified
percentages in aggregate principal amount of the Notes at the time outstanding,
on behalf of the Holders of all the Notes, to waive compliance by the Company
with certain provisions of the Exchange Agreement and certain past defaults
under the Exchange Agreement and their consequences.  Any such consent or waiver by the Holder of this Note shall be
conclusive and binding upon such Holder and upon all future Holders of this


 


2

















 


Note and of any Note issued upon the registration of transfer hereof or
in exchange herefor or in lieu hereof, whether or not notation of such consent
or waiver is made upon this Note.


 


As provided in the Exchange Agreement and subject to
certain limitations therein set forth, the transfer of this Note is registrable
in the Security Register, upon surrender of this Note for registration of
transfer at the principal offices of the Company, duly endorsed by, or
accompanied by a written instrument of transfer in form satisfactory to the
Company duly executed by, the Holder hereof or his attorney duly authorized in
writing, and thereupon one or more new Notes, of authorized denominations and
for the same aggregate principal amount, will be issued to the designated
transferee or transferees.


 


The Notes are issuable only in registered form without
coupons in denominations of $1,000 and any multiple thereof.  As provided in the Exchange Agreement and
subject to certain limitations therein set forth, Notes are exchangeable for a
like aggregate principal amount of Notes of a different authorized denomination,
as requested by the Holder surrendering the same.


 


No service charge shall be made for any such
registration of transfer or exchange, but the Company may require payment of a
sum sufficient to cover any tax or other governmental charge payable in
connection therewith.


 


Prior to due presentment of this Note for registration
of transfer, the Company and any agent of the Company may treat the Person in
whose name this Note is registered as the owner hereof for all purposes,
whether or not this Note be overdue, and neither the Company nor any such agent
shall be affected by notice to the contrary.


 


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


 


All terms used in this Note which are defined in the
Exchange Agreement shall have the meanings assigned to them in the Exchange
Agreement.


 


THE EXCHANGE AGREEMENT AND THIS NOTE SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, EXCLUDING
CHOICE-OF-LAW PRINCIPLES OF THE LAW OF SUCH STATE THAT WOULD REQUIRE THE
APPLICATION OF THE LAWS OF A JURISDICTION OTHER THAN SUCH STATE.


 


3

















 


OPTION OF HOLDER TO ELECT
PURCHASE


 


If you want to elect to have this Note purchased in
its entirety by the Company pursuant to Section 7.7 or 7.9 of the
Agreement, check the box:


 


o


 


If you want to elect to have only a part of the
principal amount of this Note purchased by the Company pursuant to
Section 7.7 of the Agreement, state the portion of such amount: 
$                  


 


 


	
  Dated:

  	
  Your Signature:

  	
   

  	
   

  
	
   

  	
  (Sign exactly as name appears

  on the other side of this Note)

  
	
   

  
	
   

  
	
  Signature Guarantee:

  	
   

  	
   

  
	
   

  	
  (Signature must be
  guaranteed by a financial institution that is a member of the Securities
  Transfer Agent Medallion Program (“STAMP”), the Stock Exchange Medallion
  Program (“SEMP”), the New York Stock Exchange, Inc. Medallion Signature
  Program (“MSP”) or such other signature guarantee program as may be
  determined by the Security Registrar in addition to, or in substitution for,
  STAMP, SEMP or MSP, all in accordance with the Securities Exchange Act of
  1934, as amended.)

  
							



 


4

















 


SCHEDULE
A


 


INFORMATION RELATING TO
PURCHASERS


 


	
  Name and Address of Purchaser

  	
   

  	
  Principal
  Amount at 

  Maturity of the Existing

  Holdings Notes to

  be Surrendered

  	
   

  	
  Principal

  Amount of the

  Notes to

  be Received

  	
   

  	
  Financing

  Payment

  	
   

  	
  Redemption
  of

  Existing Holdings

  Notes pursuant to

  Section 3.6(1)

  	
   

  
	
  GS MEZZANINE PARTNERS,

  L.P.

  85 Broad Street

  New York, New York 10004

  Telecopy: (212) 902-3000

  Attention:  Ben Adler

  	
   

  	
  $

  	
  30,294,400.03

  	
   

  	
  $

  	
  24,788,507.30

  	
   

  	
  $

  	
  743,655.22

  	
   

  	
  $

  	
  5,023,000.00

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  GS MEZZANINE PARTNERS

  OFFSHORE, L.P.

  c/o GS Mezzanine Partners L.P.

  85 Broad Street

  New York, New York 10004

  Telecopy: (212) 902-3000

  Attention:  Ben Adler

  	
   

  	
  $

  	
  16,267,631.07

  	
   

  	
  $

  	
  13,311,325.02

  	
   

  	
  $

  	
  399,339.75

  	
   

  	
  $

  	
  2,697,000.00

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  STONE STREET FUND 1998,

  L.P.

  85 Broad Street

  New York, New York 10004

  Telecopy: (212) 902-3000

  Attention:  Ben Adler

  	
   

  	
  $

  	
  1,296,846.01

  	
   

  	
  $

  	
  1,061,174.28

  	
   

  	
  $

  	
  31,835.23

  	
   

  	
  $

  	
  215,000.00

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  BRIDGE STREET FUND 1998,

  L.P.

  85 Broad Street

  New York, New York 10004

  Telecopy: (212) 902-3000

  Attention:  Ben Adler

  	
   

  	
  $

  	
  391,369.81

  	
   

  	
  $

  	
  320,131.38

  	
   

  	
  $

  	
  9,603.94

  	
   

  	
  $

  	
  65,000.00

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  ARES LEVERAGED

  INVESTMENT

  FUND, L.P.

  1999 Avenue of the Stars, Suite

  1900

  Los Angeles, California 90067

  Telecopy: (310) 201-4170

  Attention:  Jeff Serota

  	
   

  	
  $

  	
  6,031,280.87

  	
   

  	
  $

  	
  4,935,142.25

  	
   

  	
  $

  	
  148,054.26

  	
   

  	
  $

  	
  1,000,000.00

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  ARES LEVERAGED

  INVESTMENT

  FUND II, L.P.

  1999 Avenue of the Stars, Suite

  1900,

  Los Angeles, California 90067

  Telecopy: (310) 201-4170

  Attention:  Jeff Serota

  	
   

  	
  $

  	
  6,031,280.86

  	
   

  	
  $

  	
  4,935,142.25

  	
   

  	
  $

  	
  148,054.26

  	
   

  	
  $

  	
  1,000,000.00

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  TOTAL:

  	
   

  	
  $

  	
  60,312,808.65

  	
   

  	
  $

  	
  49,351,422.48

  	
   

  	
  $

  	
  1,480,542.67

  	
   

  	
  $

  	
  10,000,000.00

  	
   

  



 












(1)           Shows 50%
of the aggregate amount of redemption. 
The other 50% are shown in the Subordinated Note Exchange Agreement as
applied to the Existing Holdings Notes exchanged for the Subordinated Notes.


 


5