Exhibit 10.21


 




 





 


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


13.95% Senior Subordinated 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; Company Senior 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.  SUBORDINATION OF NOTES

  	
   

  
	
  13.1.

  	
  Notes
  Subordinate to Senior Indebtedness

  	
   

  
	
  13.2.

  	
  Payment
  Over of Proceeds Upon Dissolution, Etc

  	
   

  
	
  13.3.

  	
  No Payment
  When Senior Indebtedness in Default

  	
   

  
	
  13.4.

  	
  Payment Permitted If No
  Default

  	
   

  
	
  13.5.

  	
  Subrogation
  to Rights of Holders of Senior Indebtedness

  	
   

  
	
  13.6.

  	
  Provisions
  Solely to Define Relative Rights

  	
   

  
	
  13.7.

  	
  No Waiver of
  Subordination Provisions

  	
   

  
	
  13.8.

  	
  Reliance
  on Judicial Order or Certificate of Liquidating Agent

  	
   

  
	
  13.9.

  	
  Reliance
  by Holders of Senior Indebtedness on Subordination Provisions

  	
   

  
	
   

  	
   

  	
   

  
	
  SECTION 14.  EXPENSES, INDEMNIFICATION AND CONTRIBUTION

  	
   

  
	
  14.1.

  	
  Expenses

  	
   

  
	
  14.2.

  	
  Indemnification.

  	
   

  
	
  14.3.

  	
  Contribution

  	
   

  
	
  14.4.

  	
  Survival

  	
   

  
	
   

  	
   

  	
   

  
	
  SECTION 15.  MISCELLANEOUS

  	
   

  
	
  15.1.

  	
  Notices

  	
   

  
	
  15.2.

  	
  Benefit
  of Agreement; Assignments and Participations

  	
   

  
	
  15.3.

  	
  No Waiver; Remedies
  Cumulative

  	
   

  
	
  15.4.

  	
  Amendments, Waivers
  and Consents

  	
   

  
	
  15.5.

  	
  Counterparts

  	
   

  
	
  15.6.

  	
  Reproduction

  	
   

  
	
  15.7.

  	
  Headings

  	
   

  
	
  15.8.

  	
  Survival of Covenants
  and Indemnities

  	
   

  
	
  15.9.

  	
  Governing
  Law; Submission to Jurisdiction; Venue.

  	
   

  
	
  15.10.

  	
  Severability

  	
   

  
	
  15.11.

  	
  Entirety

  	
   

  
	
  15.12.

  	
  Survival of
  Representations and Warranties

  	
   

  
	
  15.13.

  	
  Construction

  	
   

  
	
  15.14.

  	
  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

  	
   

  



 


iv

















 


	
  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

  



 


 


v

















 


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 13.95% Senior
Subordinated 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 Company Senior Notes (as hereinafter defined) to
be issued by the Company pursuant to the Company Senior 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 Company Senior 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 “Company
Senior 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 16% Senior Notes due
2012 (together with all notes issued in exchange, substitution or replacement
therefor, the “Company Senior 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 15.4.


 


“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 14.2(b).


 


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


 


“Company
Senior Note Documents” means the Company Senior Notes, the Company Senior
Note Exchange Agreement, the exchange and registration rights agreement related
to the Company Senior 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.


 


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


 


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


 


“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


 


7

















 


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
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.


 


8

















 


“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 14.2(a).


 


“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.


 


9

















 


“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 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 satisfactory
to the Purchasers (so long as the Purchasers own any Notes), (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.


 


10

















 


“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.


 


“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 Company Senior Note
Exchange Agreement, the Exchange and Registration Rights Agreement, the
Exchange and Registration Rights Agreement (as defined in the Company Senior
Note Exchange Agreement), the Credit Agreement, the Stockholders Agreement, the
Notes, the Exchange Notes, the Company Senior 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


 


11

















 


obligations, the interest
component of all payments associated with Capital Lease Obligations, imputed
interest with respect to Attributable Debt, commissions, discounts and other
fees and charges incurred in respect of letter of credit or bankers’ acceptance
financings, and net payments (if any) pursuant to Hedging Obligations), (ii)
the consolidated interest expense of such Person and its Subsidiaries that was
capitalized during such period, (iii) any interest expense on Indebtedness of
another Person that is Guaranteed by such Person or one of its Subsidiaries or
secured by a Lien on assets of such Person or one of its Subsidiaries (whether
or not such Guarantee or Lien is called upon) and (iv) the product of (A) all
cash dividend payments (and non-cash dividend payments in the case of a Person
that is a Subsidiary) on any series of preferred stock of such Person plus all
accrued but unpaid cash dividends on Disqualified Stock, times (B) a fraction,
the numerator of which is one and the denominator of which is one minus the
then current combined federal, state and local statutory tax rate of such
Person, expressed as a decimal, in each case, on a consolidated basis and in
accordance with GAAP.


 


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


 


12

















 


“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.


 


“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 14.2(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,


 


13

















 


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,
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.


 


14

















 


“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..


 


“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


 


15

















 


gain (but not loss),
together with any related provision for taxes on such extraordinary or
nonrecurring gain (but not loss) and (iii) any non-cash compensation expense of
such Person attributable to the exercise of options to acquire Capital Stock of
the Company by any officers, directors or employees of the Company or any of
its Subsidiaries.


 


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


 


“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.


 


“Notes
Payment” is defined in Section 13.2.


 


“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


 


16

















 


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 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
Blockage Period” is defined in Section 13.3.


 


“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
Company Senior 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


 


17

















 


(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 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


 


18

















 


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.


 


“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.


 


19

















 


“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.


 


“Proceeding”
is defined in Section 13.2.


 


“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 14.2(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).


 


20

















 


“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


 


(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.


 


21

















 


“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.


 


“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).


 


22

















 


“Senior
Indebtedness” means the principal of (and premium, if any) and interest
(including interest accruing on or after the filing of any petition in
bankruptcy or for reorganization relating to the Company but only to the extent
such claim for post-petition interest is allowed in such proceeding) on, and
penalties and any obligation of the Company for reimbursement (including
attorneys’ fees incurred in connection with any such proceeding, whether or not
allowed in such proceeding), indemnities and fees relating to, and all other
amounts owing under, the Company Senior Notes and the Company Senior Note
Exchange Agreement; provided, however,
that the following shall not constitute Senior Indebtedness:  (i) any portion of any Indebtedness which is
incurred in violation of this Agreement, (ii) any Indebtedness owed to LGP and
(iii) Indebtedness which, when incurred and without respect to any election
under Section 1111(b) of Title 11, United States Code, is without recourse
to the Company.


 


“Senior
Nonmonetary Default” is defined in Section 13.3.


 


“Senior
Payment Default” is defined in Section 13.3.


 


“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 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.


 


23

















 


“Subordinated
Indebtedness” means, with respect to any Person, (i) Indebtedness of the
Company or any of its Subsidiaries under any Earn-Out Obligations, and (ii)
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 (ii),
containing maturities, amortization schedules, covenants, defaults, remedies,
subordination provisions and other material terms in form and substance
satisfactory to the Required Holders.


 


“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 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 Company Senior Note Documents.


 


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


 


24

















 


“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.


 


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.


 


25

















 


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.


 


(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.


 


26

















 


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.


 


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;
Company Senior 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


 


27

















 


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 Company Senior 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 Company Senior Notes shall have been issued and outstanding in
accordance with the Company Senior 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 the Company Senior 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.


 


28

















 


(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
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 14.1 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 Company
Senior 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


 


29

















 


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, 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


 


30

















 


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 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.


 


31

















 


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, 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


 


32

















 


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, 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


 


33

















 


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 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.


 


34

















 


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;


 


(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


 


35

















 


(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, 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.


 


36

















 


(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 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.


 


37

















 


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.


 


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 


 


38

















 


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 (other than the obligations
represented by the Company Senior Notes), and, except for the Company Senior
Notes, 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 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 Company Senior
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


 


39

















 


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:


 


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


 


40

















 


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


 


(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,


 


41

















 


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, 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,


 


42

















 


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 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.


 


43

















 


(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.


 


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


 


44

















 


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.


 


(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 7.3 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, Company Senior
Notes and/or Holdings Note Shares), to consult with and advise management of
the Company, DFG or any of its Subsidiaries, as the case


 


45

















 


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
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


 


46

















 


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;


 


(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


 


47

















 


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, Company
Senior 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, Company
Senior 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 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


 


48

















 


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.


 


(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).


 


49

















 


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 Company Senior Notes to
purchase Notes and Company Senior 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 Company Senior
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
Company Senior 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.


 


(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 Company Senior 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;


 


50

















 


(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 Company Senior Notes surrendered by holders
thereof collectively exceeds the Offer Amount, the Company shall select the
Notes and Company Senior 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
Company Senior 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 Company
Senior Notes or portions thereof tendered pursuant to the Asset Sale Offer, or
if less than the Offer Amount has been tendered, all Notes and Company Senior
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


 


51

















 


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, in
the case of any such Indebtedness other than Earn-out Obligations, at final
maturity thereof or (d) make any Restricted Investment (all such payments and
other actions set forth in clauses (a) through (d) above being collectively
referred to as “Restricted Payments”); provided, however,
that the foregoing provisions shall not prohibit (i) any repurchase,
redemption or other acquisition or retirement for value by the Company of any
Equity Interests of the Company, 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 twelve-month period under key man insurance policies with
respect to such members of management, (ii) redemption or repurchase of the
Holdings Note Shares and/or the Subscription Shares pursuant to the exercise of
the Put Option and (iii) any payment, when due, of Earn-out Obligations; provided that, so long as the Purchasers
own any Notes, the aggregate amount of such payments shall not exceed
$1,000,000 in any twelve-month period.


 


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


 


52

















 


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, (y)
this Agreement and the Notes and (z) the Company Senior Notes and the Company
Senior Note Exchange Agreement 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 (iv) applicable law, (v) by reason of customary
non-assignment provisions in leases, licenses and other agreements entered into
in the ordinary course of business and consistent with past practices, (vi)
purchase money obligations for property acquired in the ordinary course of
business that impose restrictions of the nature described in clause (c) above
on the property so acquired, (vii) an agreement for the sale or other
disposition of all or substantially all of the Equity Interests or assets of a
Subsidiary of the Company otherwise permitted by this 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.


 


53

















 


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 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.


 


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(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 Company Senior Notes in compliance with the voluntary
redemption provisions of this Agreement and the Company Senior 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 Company Senior 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 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


 


55

















 


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)           The Company shall not
incur any Indebtedness which by its terms is both (i) subordinate in right of
payment to any Senior Indebtedness and (ii) senior in right of payment to the
Notes (it being understood that Indebtedness shall not be deemed subordinate in
right of payment to other Indebtedness solely by reason of such other
Indebtedness having the benefit of a security interest in property of the Company).


 


(e)           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
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


 


56

















 


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
Company Senior Notes to purchase the maximum principal amount of Notes and
Company Senior 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 Company Senior 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 Company Senior Notes surrendered by Holders of Notes and holders
of Company Senior Notes, respectively, collectively exceeds the amount of
Excess Proceeds, the Company shall select the Notes and the Company Senior 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


 


57

















 


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, 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


 


58

















 


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 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


 


59

















 


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 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.


 


60

















 


(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 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.


 


61

















 


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 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.


 


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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 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


 


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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
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).


 


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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
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


 


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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 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.


 


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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:


 


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


 


67

















 


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.


 


(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.


 


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(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


 


(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;


 


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(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;


 


(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


 


70

















 


(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.


 


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


 


71

















 


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;


 


(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


 


72

















 


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,


 


(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


 


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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.


 


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


 


74

















 


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 15.4 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; 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


 


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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 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.


 


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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;


 


(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


 


77

















 


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 Company Senior Notes calling for
a redemption of the same portion of the Company Senior Notes as the notice of
redemption delivered pursuant to Section 12.3; provided, however,
that, to the extent any holder of the Senior Company Notes exercises its right
with respect to any optional redemption pursuant to Section 12.7 of the
Company Senior Note Exchange Agreement to decline the redemption of all or a
portion of the Company Senior Notes then held by such holder (a notice of which
shall be given to the Holders within five (5) Business Days prior to the
Redemption Date), the aggregate amount so declined shall be applied to the
redemption of the Notes.


 


SECTION 13.



SUBORDINATION OF NOTES


 


13.1.        Notes Subordinate to Senior
Indebtedness. 
The Company covenants and agrees, and each Holder of a Note, by his
acceptance thereof, likewise covenants and agrees, that, to the extent and in
the manner hereinafter set forth in this Section 13, the payment of the
principal of (and premium, if any) and interest and any Special Interest on
each and all of the Notes are hereby expressly made subordinate and subject in
right of payment to the prior payment in full in cash or Cash Equivalents of
all Senior Indebtedness of the Company. 
The provisions of this Section 13 shall continue to be effective or
be reinstated, as the case may be, if at any time any payment of any of the
Senior Indebtedness is rescinded or must otherwise be returned by a holder of
Senior Indebtedness upon any Proceeding or otherwise, all as though such
payment had not been made.


 


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13.2.        Payment Over of Proceeds Upon
Dissolution, Etc.  In the event of (a) any insolvency or
bankruptcy case or proceeding, or any receivership, liquidation, reorganization
or other similar case or proceeding in connection therewith, relative to the
Company or to its creditors, as such, or to its assets, (b) any liquidation,
dissolution or other winding up of the Company, whether voluntary or
involuntary and whether or not involving insolvency or bankruptcy or (c) any
assignment for the benefit of creditors or any other marshalling of assets and
liabilities of the Company, then and in any such event specified in clause (a),
(b) or (c) above (each such event, if any, herein sometimes referred to as a “Proceeding”)
the holders of Senior Indebtedness shall be entitled to receive or retain
payment in full in cash or Cash Equivalents of all amounts due or to become due
on or in respect of all Senior Indebtedness, before the Holders of the Notes
are entitled to receive any payment or distribution of any kind or character,
whether in cash, property or securities, on account of principal of (or
premium, if any) or interest or any Special Interest on or other obligations in
respect of the Notes (including any interest accruing on or after the filing of
any Proceeding relating to the Company, whether or not allowed in such
Proceeding) or on account of any purchase or other acquisition of Notes by the
Company or any Subsidiary of the Company (all such payments, distributions,
purchases and acquisitions herein referred to, individually and collectively,
as a “Notes Payment”), and to that end the holders of Senior
Indebtedness shall be entitled to receive, for application to the payment
thereof, any Notes Payment which may be payable or deliverable in respect of
the Notes in any such Proceeding.


 


In the
event that, notwithstanding the foregoing provisions of this Section 13.2,
the Holder of any Note shall have received any Notes Payment before all Senior
Indebtedness of the Company is paid in full in cash or Cash Equivalents, then
and in such event such Notes Payment shall be paid over or delivered forthwith
to the trustee in bankruptcy or other person making payment or distribution of
assets of the Company for the application to the payment of all Senior
Indebtedness remaining unpaid, to the extent necessary to pay the Senior
Indebtedness in full in cash or Cash Equivalents, after giving effect to any
concurrent payment or distribution to or for the holders of Senior
Indebtedness.


 


For
purposes of this Section 13 only, the words “any payment or distribution
of any kind or character, whether in cash, property or securities” shall not be
deemed to include a payment or distribution of stock or securities of the
Company provided for by a plan of reorganization or readjustment authorized by
an order or decree of a court of competent jurisdiction in a reorganization
proceeding under any applicable bankruptcy law or of any other corporation
provided for by such plan of reorganization or readjustment which stock or
securities are subordinated in right of payment to all then outstanding Senior
Indebtedness to substantially the same extent as, or to a greater extent than,
the Notes are so subordinated as provided in this Section 13.  The consolidation of the Company with, or
the merger of the Company into, another Person or the liquidation or
dissolution of the Company following the conveyance or transfer of all or
substantially all of its properties and assets as an entirety to another Person
upon the terms and conditions set forth in Section 8.11 shall not be
deemed a Proceeding for the purposes of this Section 13.2 if the Person
formed by such consolidation or into which the Company is merged or the Person
which acquires by conveyance or transfer such properties and assets, as the
case may be, shall, as a part of such consolidation, merger, conveyance or
transfer, complies with the conditions set forth in Section 8.11.


 


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13.3.        No Payment When Senior Indebtedness
in Default. 
In the event that any Senior Payment Default (as defined below) shall
have occurred and be continuing, then no Notes Payment shall be made unless and
until such Senior Payment Default shall have been cured or waived or shall have
ceased to exist or all amounts then due and payable in respect of Senior
Indebtedness shall have been paid in full in cash or Cash Equivalents.  “Senior Payment Default” means any
default in the payment of principal of (or premium, if any) or interest on
Senior Indebtedness when due, whether at the due date of any such payment or by
declaration of acceleration, call for redemption.


 


Upon
the occurrence of a Senior Nonmonetary Default and receipt of written notice by
the Company of the occurrence of such Senior Nonmonetary Default from the
Required Holders (as defined in the Company Senior Note Exchange Agreement) of
Senior Indebtedness (or any trustee, agent or other representative for such
holder) which is the subject of such Senior Nonmonetary Default, no Notes
Payment may be made during a period (the “Payment Blockage Period”)
commencing on the date of the receipt by the Company of such notice and ending
the earlier of (i) the date on which such Senior Nonmonetary Default shall have
been cured or waived or ceased to exist or all Senior Indebtedness which was
the subject of such Senior Nonmonetary Default shall have been paid in full in
cash or Cash Equivalents and (ii) the 179th day after the date of the receipt
of such notice.  No Senior Nonmonetary
Default that existed or was continuing on the date of the commencement of a
Payment Blockage Period may be made the basis of the commencement of a
subsequent Payment Blockage Period whether or not within a period of 360
consecutive days, unless such Senior Nonmonetary Default shall have been cured
for a period of not less than 90 consecutive days.  In any event, notwithstanding the foregoing, no more than one
Payment Blockage Period may be commenced during any 360-day period and there
shall be a period of at least 181 days during each 360-day period when no
Payment Blockage Period is in effect.  “Senior
Nonmonetary Default” means the occurrence or existence and continuance of
an event of default with respect to Senior Indebtedness, other than a Senior
Payment Default, that permits the holders of the Senior Indebtedness (or a trustee
or other agent on behalf of the holders thereof) then to declare such Senior
Indebtedness due and payable prior to the date on which it would otherwise
become due and payable.


 


The
failure to make any payment on the Notes by reason of the provisions of this
Section 13.3 will not be construed as preventing the occurrence of an
Event of Default with respect to the Notes arising from any such failure to
make payment.  Upon termination of any
Payment Blockage Period the Company shall resume making any and all required
payments in respect of the Notes, including any missed payments.


 


In the
event that, notwithstanding the foregoing, the Company shall make any Notes
Payment to any Holder prohibited by the foregoing provisions of this
Section 13.3, then and in such event such Notes Payment shall be paid over
and delivered forthwith to the holders of the Senior Indebtedness of the
Company in the same form received and, until so turned over, the same shall be
held in trust by such Holder as the property of the holders of the Senior
Indebtedness.


 


The
provisions of this Section 13.3 shall not apply to any Notes Payment with
respect to which Section 13.2 would be applicable.


 


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13.4.        Payment Permitted If No Default.  Nothing
contained in this Section 13 or elsewhere in this Agreement or in any of
the Notes shall prevent the Company, at any time except during the pendency of
any Proceeding referred to in Section 13.2 or under the conditions
described in Section 13.3, from making Notes Payments.


 


13.5.        Subrogation to Rights of Holders of
Senior
Indebtedness.  Only after the payment in full in cash or
Cash Equivalents of all amounts due or to become due on or in respect of Senior
Indebtedness of the Company, the Holders of the Notes shall be subrogated to
the rights of the holders of Senior Indebtedness to receive payments and
distributions of cash, property and securities applicable to such Senior
Indebtedness until the principal of (and premium, if any) and interest and any
Special Interest on the Notes shall be paid in full.  For purposes of such subrogation, no payments or distribution to
the holders of the Senior Indebtedness of the Company of any cash, property or
securities to which the Holders of the Notes would be entitled except for the
provisions of this Section 13, and no payments over pursuant to the
provisions of this Section 13 to the holders of Senior Indebtedness by
Holders of the Notes, shall, as among the Company, its creditors other than
holders of Senior Indebtedness and the Holders of the Notes, be deemed to be a
payment or distribution by the Company to or on account of the Senior
Indebtedness.


 


13.6.        Provisions Solely to Define Relative
Rights. 
The provisions of this Section 13 are and are intended solely for
the purpose of defining the relative rights of the Holders on the one hand and
the holders of Senior Indebtedness on the other hand.  Nothing contained in this Section 13 or elsewhere in this
Agreement or in the Notes is intended to or shall (a) impair, as amongst the
Company, its creditors other than holders of Senior Indebtedness and the
Holders of the Notes, the obligation of the Company, which is absolute and
unconditional (and which, subject to the rights under this Section 13 of
the holders of Senior Indebtedness, is intended to rank equally with all other
general obligations of the Company), to pay to the Holders of the Notes the
principal of (and premium, if any) and interest and any Special Interest on the
Notes as and when the same shall become due and payable in accordance with
their terms, (b) affect the relative rights against the Company of the Holders
of the Notes and creditors of the Company other than the holders of Senior
Indebtedness or (c) prevent the Holder of any Note from exercising all remedies
otherwise permitted by applicable law upon default under this Agreement,
subject to the rights, if any, under this Section 13 of the holders of
Senior Indebtedness to receive cash, property and securities otherwise payable
or deliverable to such Holder.


 


13.7.        No Waiver of Subordination
Provisions. 
No right of any present or future holder of any Senior Indebtedness to
enforce subordination as herein provided shall at any time in any way be
prejudiced or impaired by any act or failure to act on the part of the Company
or by any act or failure to act, in good faith, by any such holder, or by any
noncompliance by the Company with the terms, provisions and covenants of this
Agreement, regardless of any knowledge thereof any such holder may have or be
otherwise charged with.


 


Without
in any way limiting the generality of the foregoing paragraph, the holders of
Senior Indebtedness may, at any time and from time to time, without the consent
of or notice to the Holders of the Notes, without incurring responsibility to
the Holders of the Notes and without impairing or releasing the subordination
provided in this Section 13 or the obligations


 


81

















 


hereunder of the Holders
of the Notes to the holders of Senior Indebtedness, do any one or more of the
following:  (i) change the manner, place
or terms of payment or extend the time of payment of, or renew or alter, Senior
Indebtedness, or otherwise amend or supplement in any manner Senior
Indebtedness or any instrument evidencing the same or any agreement under which
Senior Indebtedness is outstanding, (ii) sell, exchange, release or otherwise
deal with any property pledged, mortgaged or otherwise securing Senior
Indebtedness, (iii) release any Person liable in any manner for the collection
of Senior Indebtedness, (iv) settle or compromise any such Senior Indebtedness
or any other liability of any obligor of such Senior Indebtedness to such
holder or any security therefor or any liability issued in respect thereof and
apply any sums by whomsoever paid and however realized to any liability
(including, without limitation, payment of any of the Senior Indebtedness) in
any manner or order, (v) fail to take or to record or otherwise perfect, for
any reason or for no reason, any lien or security interest securing such Senior
Indebtedness by whomsoever granted, exercise or delay in or refrain from
exercising any right or remedy against any obligor or any guarantor or any
other Person, elect any remedy and otherwise deal freely with any obligor and
any security for such Senior Indebtedness or any liability of any obligor to
the holders of such Senior Indebtedness or any liability issued in respect of
such Senior Indebtedness and (vi) exercise or refrain from exercising any
rights against the Company and any other Person.


 


13.8.        Reliance on Judicial Order or
Certificate of Liquidating Agent.  Upon any
payment or distribution of assets of the Company referred to in this
Section 13, the Holders of the Notes shall be entitled to rely upon any
order or decree entered by any court of competent jurisdiction in which such
Proceeding is pending, or a certificate of the trustee in bankruptcy, receiver,
liquidating trustee, custodian, assignee for the benefit of creditors, agent or
other Person making such payment or distribution, delivered to the Holders of
Notes, for the purpose of ascertaining the Persons entitled to participate in
such payment or distribution, the holders of the Senior Indebtedness and other
Indebtedness of the Company, the amount thereof or payable thereon, the amount
or amounts paid or distributed thereon and all other facts pertinent thereto or
to this Section 13.


 


13.9.        Reliance by Holders of Senior
Indebtedness on Subordination Provisions.  Each Holder
of a note, by accepting such Note, acknowledges and agrees that the foregoing
subordination provisions are, and are intended to be, an inducement and a
consideration to each holder of any Senior Indebtedness, whether such Senior
Indebtedness was created or acquired before or after the issuance of the Note,
to acquire and continue to hold, or to continue to hold, such Senior
Indebtedness, and such holder of such Senior Indebtedness shall be deemed
conclusively to have relied on such subordination provisions in acquiring and
continuing to hold, or in continuing to hold, such Senior Indebtedness.


 


SECTION 14.



EXPENSES, INDEMNIFICATION AND CONTRIBUTION


 


14.1.        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


 


82

















 


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.


 


14.2.        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 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 


 


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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 14.2(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 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
14.2(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 14.2(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


 


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shall,
if a claim in respect thereof is to be made against an indemnifying party under
Section 14.2(a) or 14.2(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 14.2(a) or 14.2(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 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.


 


14.3.        Contribution.  If the
indemnification provided for in Section 14.2 is unavailable to or
insufficient to hold harmless an Indemnified Person under paragraph (a), (b) or
(c) of Section 14.2 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


 


85

















 


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 14.3 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 14.3.  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 14.3 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 14.3, no Purchaser shall be required to contribute any amount
which, when taken together with any amounts paid by such Purchaser under
Section 14.2(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 14.3
shall be in addition to any liability which the Company and the respective
Purchasers may otherwise have.


 


14.4.        Survival.  The
obligations of the Company under this Section 14 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.


 


SECTION 15.



MISCELLANEOUS


 


15.1.        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;


 


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(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.


 


15.2.        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.


 


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.


 


15.3.        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.


 


15.4.        Amendments, Waivers and Consents.  This
Agreement may be amended, and the observance of any term hereof may be waived
(either retroactively or prospectively) with


 


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(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; and, provided, further,
that no such amendment or waiver may, without the prior written consent of the
trustee or the Required Holders (as defined in the Company Senior Note Exchange
Agreement) of the Senior Indebtedness, amend or waive the provisions of Section 13
or the related definitions.  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.


 


15.5.        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.


 


15.6.        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 15.6 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.


 


88

















 


15.7.        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.


 


15.8.        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.


 


15.9.        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.


 


(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


 


89

















 


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.


 


15.10.      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.


 


15.11.      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.


 


15.12.      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.


 


15.13.      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) 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.


 


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


 


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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/ Jeff Weiss

  	
   

  
	
   

  	
   

  	
  Name: Jeff 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

  



 


91

















 


	
   

  	
  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

  



 


92

















 


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.


 


13.95% SENIOR SUBORDINATED 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 13.95% 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


 












*              The issue date.


**           Interest Payment Date
next succeeding the issue date.


 


1

















 


statement under 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 13.95% Senior Subordinated 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, 2005

  	
   

  	
  100.000

  	
  %

  
	
   

  	
   

  	
   

  	
   

  
	
  2006

  	
   

  	
  112.500

  	
  %

  
	
   

  	
   

  	
   

  	
   

  
	
  2007

  	
   

  	
  110.000

  	
  %

  
	
   

  	
   

  	
   

  	
   

  
	
  2008

  	
   

  	
  107.500

  	
  %

  
	
   

  	
   

  	
   

  	
   

  
	
  2009

  	
   

  	
  105.000

  	
  %

  
	
   

  	
   

  	
   

  	
   

  
	
  2010

  	
   

  	
  102.500

  	
  %

  
	
   

  	
   

  	
   

  	
   

  
	
  2011 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.


 


1

















 


If the
aggregate amount which would be includible in gross income for federal income
tax purposes with respect to the Notes before any Interest Payment Date
occurring after the fifth (5th) anniversary of the Closing Date (the
“Aggregate Inclusion”) exceeds an amount equal to the sum of (x) the
aggregate amount of interest paid in cash under the Notes before such Interest
Payment Date and (y) the product of the issue price of all of the Notes (as
determined under United States Treasury Regulation Section 1.1273-2(a))
multiplied by 14.87% (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.


 


The
indebtedness evidenced by this Note is, to the extent provided in the Exchange
Agreement, subordinate and subject in right of payment to the prior payment in
full of all Senior Indebtedness, and this Note is issued subject to the
provisions of the Exchange Agreement with respect thereto.  Each Holder of this Note, by accepting the
same, agrees to and shall be bound by such provisions.


 


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.


 


2

















 


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 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