Exhibit 4.2


 




 


 





ADESA, INC.




 


   % SENIOR SUBORDINATED NOTES DUE 2012


 












 


INDENTURE


 


Dated as of June    , 2004


 












 


LASALLE BANK NATIONAL ASSOCIATION


 


Trustee


 














 


 





 

















 


CROSS-REFERENCE TABLE


 


	
  TIA

  Section

  	
   

  	
  Indenture

  Section

  
	
   

  	
   

  	
   

  	
   

  
	
  310

  	
  (a)(1)

  	
   

  	
  7.10

  
	
   

  	
  (a)(2)

  	
   

  	
  7.10

  
	
   

  	
  (a)(3)

  	
   

  	
  N.A.

  
	
   

  	
  (a)(4)

  	
   

  	
  N.A.

  
	
   

  	
  (a)(5)

  	
   

  	
  7.10

  
	
   

  	
  (b)

  	
   

  	
  7.10

  
	
   

  	
  (c)

  	
   

  	
  N.A.

  
	
  311

  	
  (a)

  	
   

  	
  7.11

  
	
   

  	
  (b)

  	
   

  	
  7.11

  
	
   

  	
  (c)

  	
   

  	
  N.A.

  
	
  312

  	
  (a)

  	
   

  	
  2.05

  
	
   

  	
  (b)

  	
   

  	
  13.03

  
	
   

  	
  (c)

  	
   

  	
  13.03

  
	
  313

  	
  (a)

  	
   

  	
  7.06

  
	
   

  	
  (b)(2)

  	
   

  	
  7.07

  
	
   

  	
  (c)

  	
   

  	
  7.06;
  13.02

  
	
   

  	
  (d)

  	
   

  	
  7.06

  
	
  314

  	
  (a)

  	
   

  	
  4.03;
  13.02

  
	
   

  	
  (c)(1)

  	
   

  	
  13.04

  
	
   

  	
  (c)(2)

  	
   

  	
  13.04

  
	
   

  	
  (c)(3)

  	
   

  	
  N.A.

  
	
   

  	
  (e)

  	
   

  	
  13.05

  
	
   

  	
  (f)

  	
   

  	
  N.A.

  
	
  315

  	
  (a)

  	
   

  	
  7.01

  
	
   

  	
  (b)

  	
   

  	
  7.05,13.02

  
	
   

  	
  (c)

  	
   

  	
  7.01

  
	
   

  	
  (d)

  	
   

  	
  7.01

  
	
   

  	
  (e)

  	
   

  	
  6.11

  
	
  316

  	
  (a)
  (last sentence)

  	
   

  	
  2.09

  
	
   

  	
  (a)(1)(A)

  	
   

  	
  6.05

  
	
   

  	
  (a)(1)(B)

  	
   

  	
  6.04

  
	
   

  	
  (a)(2)

  	
   

  	
  N.A.

  
	
   

  	
  (b)

  	
   

  	
  6.07

  
	
   

  	
  (c)

  	
   

  	
  2.12

  
	
  317

  	
  (a)(1)

  	
   

  	
  6.08

  
	
   

  	
  (a)(2)

  	
   

  	
  6.09

  
	
   

  	
  (b)

  	
   

  	
  2.04

  
	
  318

  	
  (a)

  	
   

  	
  13.01

  
	
   

  	
  (b)

  	
   

  	
  N.A.

  
	
   

  	
  (c)

  	
   

  	
  13.01

  



 












 


N.A. means Not Applicable


 


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


 

















 


TABLE OF CONTENTS


 


	
  ARTICLE I

  
	
   

  
	
  DEFINITIONS AND INCORPORATION

  BY REFERENCE

  
	
   

  
	
   

  	
  1.01

  	
  Definitions.

  	
   

  
	
   

  	
  1.02

  	
  Other Definitions.

  	
   

  
	
   

  	
  1.03

  	
  Incorporation by Reference of Trust
  Indenture Act.

  	
   

  
	
   

  	
  1.04

  	
  Rules of Construction.

  	
   

  
	
   

  
	
  ARTICLE II

  
	
   

  
	
  THE
  NOTES

  
	
   

  
	
   

  	
  2.01

  	
  Form and Dating.

  	
   

  
	
   

  	
  2.02

  	
  Execution and Authentication.

  	
   

  
	
   

  	
  2.03

  	
  Registrar and Paying Agent.

  	
   

  
	
   

  	
  2.04

  	
  Paying Agent to Hold Money in Trust.

  	
   

  
	
   

  	
  2.05

  	
  Holder Lists.

  	
   

  
	
   

  	
  2.06

  	
  Transfer and Exchange.

  	
   

  
	
   

  	
  2.07

  	
  Replacement Notes.

  	
   

  
	
   

  	
  2.08

  	
  Outstanding Notes.

  	
   

  
	
   

  	
  2.09

  	
  Treasury Notes.

  	
   

  
	
   

  	
  2.10

  	
  Temporary Notes.

  	
   

  
	
   

  	
  2.11

  	
  Cancellation.

  	
   

  
	
   

  	
  2.12

  	
  Defaulted Interest.

  	
   

  
	
   

  	
  2.13

  	
  CUSIP Numbers.

  	
   

  
	
   

  
	
  ARTICLE III

  
	
   

  
	
  REDEMPTION AND PREPAYMENT

  
	
   

  
	
   

  	
  3.01

  	
  Notices to Trustee.

  	
   

  
	
   

  	
  3.02

  	
  Selection of Notes To Be Redeemed.

  	
   

  
	
   

  	
  3.03

  	
  Notice of Redemption.

  	
   

  
	
   

  	
  3.04

  	
  Effect of Notice of Redemption.

  	
   

  
	
   

  	
  3.05

  	
  Deposit of Redemption Price.

  	
   

  
	
   

  	
  3.06

  	
  Notes Redeemed in Part.

  	
   

  
	
   

  	
  3.07

  	
  Optional Redemption.

  	
   

  
	
   

  	
  3.08

  	
  Mandatory Redemption.

  	
   

  



 


i

















 


	
  ARTICLE IV

  
	
   

  
	
  COVENANTS

  
	
   

  
	
   

  	
  4.01

  	
  Payment of Notes.

  	
   

  
	
   

  	
  4.02

  	
  Maintenance of Office or Agency.

  	
   

  
	
   

  	
  4.03

  	
  Reports.

  	
   

  
	
   

  	
  4.04

  	
  Changes in Covenants when Notes Rated
  Investment Grade.

  	
   

  
	
   

  	
  4.05

  	
  Taxes.

  	
   

  
	
   

  	
  4.06

  	
  Limitations on Layering Indebtedness.

  	
   

  
	
   

  	
  4.07

  	
  Limitations on Restricted Payments.

  	
   

  
	
   

  	
  4.08

  	
  Limitations on Dividend and Other
  Restrictions Affecting Restricted Subsidiaries.

  	
   

  
	
   

  	
  4.09

  	
  Limitations on Additional Indebtedness.

  	
   

  
	
   

  	
  4.10

  	
  Limitations on Asset Sales.

  	
   

  
	
   

  	
  4.11

  	
  Limitations on Transactions with
  Affiliates.

  	
   

  
	
   

  	
  4.12

  	
  Limitations on Liens.

  	
   

  
	
   

  	
  4.13

  	
  Limitations on Designation of Unrestricted
  Subsidiaries.

  	
   

  
	
   

  	
  4.14

  	
  Conduct of Business.

  	
   

  
	
   

  	
  4.15

  	
  Change of Control.

  	
   

  
	
   

  	
  4.16

  	
  Limitation on Guarantees of Indebtedness by
  Restricted Subsidiaries.

  	
   

  
	
   

  
	
  ARTICLE V

  
	
   

  
	
  SUCCESSORS

  
	
   

  
	
   

  	
  5.01

  	
  Limitations on Mergers, Consolidations,
  Etc..

  	
   

  
	
   

  
	
  ARTICLE VI

  
	
   

  
	
  DEFAULTS AND REMEDIES

  
	
   

  
	
   

  	
  6.01

  	
  Events of Default.

  	
   

  
	
   

  	
  6.02

  	
  Acceleration.

  	
   

  
	
   

  	
  6.03

  	
  Other Remedies.

  	
   

  
	
   

  	
  6.04

  	
  Waiver of Past Defaults.

  	
   

  
	
   

  	
  6.05

  	
  Control by Majority.

  	
   

  
	
   

  	
  6.06

  	
  Limitation on Suits.

  	
   

  
	
   

  	
  6.07

  	
  Rights of Holders of Notes to Receive
  Payment.

  	
   

  
	
   

  	
  6.08

  	
  Collection Suit by Trustee.

  	
   

  
	
   

  	
  6.09

  	
  Trustee May File Proofs of Claim.

  	
   

  
	
   

  	
  6.10

  	
  Priorities.

  	
   

  
	
   

  	
  6.11

  	
  Undertaking for Costs.

  	
   

  
	
   

  	
  6.12

  	
  Compliance Statement.

  	
   

  
	
   

  
	
  ARTICLE VII

  
	
   

  
	
  TRUSTEE

  
	
   

  
	
   

  	
  7.01

  	
  Duties of Trustee.

  	
   

  
	
   

  	
  7.02

  	
  Rights of Trustee.

  	
   

  



 


ii

















 


	
   

  	
  7.03

  	
  Individual Rights of Trustee.

  	
   

  
	
   

  	
  7.04

  	
  Trustee’s Disclaimer.

  	
   

  
	
   

  	
  7.05

  	
  Notice of Defaults.

  	
   

  
	
   

  	
  7.06

  	
  Reports by Trustee to Holders of the Notes.

  	
   

  
	
   

  	
  7.07

  	
  Compensation and Indemnity.

  	
   

  
	
   

  	
  7.08

  	
  Replacement of Trustee.

  	
   

  
	
   

  	
  7.09

  	
  Successor Trustee by Merger, etc.

  	
   

  
	
   

  	
  7.10

  	
  Eligibility; Disqualification.

  	
   

  
	
   

  	
  7.11

  	
  Preferential Collection of Claims Against
  Company.

  	
   

  
	
   

  
	
  ARTICLE VIII

  
	
   

  
	
  LEGAL DEFEASANCE AND COVENANT DEFEASANCE

  
	
   

  
	
   

  	
  8.01

  	
  Option to Effect Legal Defeasance or
  Covenant Defeasance.

  	
   

  
	
   

  	
  8.02

  	
  Legal Defeasance and Discharge.

  	
   

  
	
   

  	
  8.03

  	
  Covenant Defeasance.

  	
   

  
	
   

  	
  8.04

  	
  Conditions to Legal or Covenant Defeasance.

  	
   

  
	
   

  	
  8.05

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

  	
   

  
	
   

  	
  8.06

  	
  Repayment to Company.

  	
   

  
	
   

  	
  8.07

  	
  Reinstatement.

  	
   

  
	
   

  
	
  ARTICLE IX

  
	
   

  
	
  AMENDMENT, SUPPLEMENT AND WAIVER

  
	
   

  
	
   

  	
  9.01

  	
  Without Consent of Holders of Notes.

  	
   

  
	
   

  	
  9.02

  	
  With Consent of Holders of Notes.

  	
   

  
	
   

  	
  9.03

  	
  With Consent of Holders of Senior Debt

  	
   

  
	
   

  	
  9.04

  	
  Compliance with Trust Indenture Act.

  	
   

  
	
   

  	
  9.05

  	
  Revocation and Effect of Consents.

  	
   

  
	
   

  	
  9.06

  	
  Notation on or Exchange of Notes.

  	
   

  
	
   

  	
  9.07

  	
  Trustee to Sign Amendments, etc.

  	
   

  
	
   

  
	
  ARTICLE X

  
	
   

  
	
  SUBORDINATION

  
	
   

  
	
   

  	
  10.01

  	
  Agreement to Subordinate.

  	
   

  
	
   

  	
  10.02

  	
  Liquidation; Dissolution; Bankruptcy.

  	
   

  
	
   

  	
  10.03

  	
  Default on Designated Senior Debt.

  	
   

  
	
   

  	
  10.04

  	
  Acceleration of Securities.

  	
   

  
	
   

  	
  10.05

  	
  When Distribution Must Be Paid Over.

  	
   

  
	
   

  	
  10.06

  	
  Notice by Company.

  	
   

  
	
   

  	
  10.07

  	
  Subrogation.

  	
   

  
	
   

  	
  10.08

  	
  Relative Rights.

  	
   

  
	
   

  	
  10.09

  	
  Subordination May Not Be Impaired by
  Company.

  	
   

  
	
   

  	
  10.10

  	
  Distribution or Notice to Representative.

  	
   

  
	
   

  	
  10.11

  	
  Rights of Trustee and Paying Agent.

  	
   

  



 


iii

















 


	
   

  	
  10.12

  	
  Authorization to Effect Subordination.

  	
   

  
	
   

  	
  10.13

  	
  Amendments.

  	
   

  
	
   

  
	
  ARTICLE XI

  
	
   

  
	
  NOTE
  GUARANTEES

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  11.01

  	
  Future Guarantees.

  	
   

  
	
   

  	
  11.02

  	
  Terms of Guarantees.

  	
   

  
	
   

  	
  11.03

  	
  Limitation on Guarantor Liability.

  	
   

  
	
   

  	
  11.04

  	
  Execution and Delivery of Supplemental
  Indenture.

  	
   

  
	
   

  	
  11.05

  	
  Releases Following Sale of Assets.

  	
   

  
	
   

  
	
  ARTICLE XII

  
	
   

  
	
  SATISFACTION AND DISCHARGE

  
	
   

  
	
   

  	
  12.01

  	
  Satisfaction and Discharge.

  	
   

  
	
   

  	
  12.02

  	
  Application of Trust Money.

  	
   

  
	
   

  
	
  ARTICLE XIII

  
	
   

  
	
  MISCELLANEOUS

  
	
   

  
	
   

  	
  13.01

  	
  Trust Indenture Act Controls.

  	
   

  
	
   

  	
  13.02

  	
  Notices.

  	
   

  
	
   

  	
  13.03

  	
  Communication by Holders of Notes with
  Other Holders of Notes.

  	
   

  
	
   

  	
  13.04

  	
  Certificate and Opinion as to Conditions
  Precedent.

  	
   

  
	
   

  	
  13.05

  	
  Statements Required in Certificate or
  Opinion.

  	
   

  
	
   

  	
  13.06

  	
  Rules by Trustee and Agents.

  	
   

  
	
   

  	
  13.07

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

  	
   

  
	
   

  	
  13.08

  	
  Governing Law.

  	
   

  
	
   

  	
  13.09

  	
  No Adverse Interpretation of Other
  Agreements.

  	
   

  
	
   

  	
  13.10

  	
  Successors.

  	
   

  
	
   

  	
  13.11

  	
  Severability.

  	
   

  
	
   

  	
  13.12

  	
  Counterpart Originals.

  	
   

  
	
   

  	
  13.13

  	
  Table of Contents, Headings, etc.

  	
   

  
	
   

  
	
  EXHIBITS

  
	
   

  
	
  Exhibit A

  	
  FORM OF NOTE

  	
   

  
	
  Exhibit B

  	
  FORM OF SUPPLEMENTAL
  INDENTURE

  	
   

  
					



 


iv

















 


INDENTURE
dated as of June [   ], 2004 between ADESA, Inc., a
Delaware corporation (the “Company”), and LaSalle Bank National Association, as
trustee (the “Trustee”).


 


The
Company and the Trustee agree as follows for the benefit of each other and for
the equal and ratable benefit of the Holders of the Notes:


 


ARTICLE I


 


DEFINITIONS
AND INCORPORATION

BY REFERENCE


 


1.01                           Definitions.


 


“Acquired Indebtedness” means (1) with
respect to any Person that becomes a Restricted Subsidiary after the Issue
Date, Indebtedness of such Person and its Subsidiaries existing at the time
such Person becomes a Restricted Subsidiary that was not incurred in connection
with, or in contemplation of, such Person becoming a Restricted Subsidiary and
(2) with respect to the Company or any Restricted Subsidiary, any Indebtedness
of a Person (other than the Company or a Restricted Subsidiary) existing at the
time such Person is merged with or into the Company or a Restricted Subsidiary,
or Indebtedness expressly assumed by the Company or any Restricted Subsidiary
in connection with the acquisition of an asset or assets from another Person,
which Indebtedness was not, in any case, incurred by such other Person in
connection with, or in contemplation of, such merger or acquisition.


 


“Additional Notes”  means Notes, unlimited in aggregate principal amount (other
than the Initial Notes) issued under this Indenture in accordance with Sections
2.02 and 4.09 hereof, as part of the same series as the Initial Notes.


 


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


 


 “AFC”
means Automotive Finance Corporation, any of its Subsidiaries, and any
successor entity thereto.


 


“Affiliate” of any Person means any other
Person which directly or indirectly controls or is controlled by, or is under
direct or indirect common control with, the referent Person.  For purposes of Section 4.11 hereof,
Affiliates shall be deemed to include, with respect to any Person, any other
Person (1) which beneficially owns or holds, directly or indirectly, 10% or
more of any class of the Voting Stock of the referenced Person, (2) of which
10% or more of the Voting Stock is beneficially owned or held, directly or
indirectly, by the referenced Person or (3) with respect to an individual, any
immediate family member of such Person. 
For purposes of this definition “control”
of a Person shall mean the power to direct the management and policies of such
Person, directly or indirectly, whether through the ownership of voting
securities, by contract or otherwise.


 


“amend” means to amend, supplement, restate,
amend and restate or otherwise modify, including successively, and “amendment” shall have a correlative
meaning.


 


“Applicable Premium” means with respect to a
Note at any time, the greater of (1) 1.0% of the principal amount of such Note
at such time and (2) the excess of (A) the present value at such time of the
principal amount of such Note plus any required premium and interest payments
due on such Note from the redemption


 

















 


date to
[            ],
2008, computed using a discount rate equal to the Treasury Rate plus 50 basis
points, over (B) the principal amount of such Note.


 


“asset” means any asset or property.


 


“Asset Acquisition” means


 


(1)                                  an Investment by the Company or any
Restricted Subsidiary in any other Person if, as a result of such Investment,
such Person shall become a Restricted Subsidiary, or shall be merged with or
into the Company or any Restricted Subsidiary, or


 


(2)                                  the acquisition by the Company or any
Restricted Subsidiary of all or substantially all of the assets of any other
Person or any division or line of business of any other Person.


 


“Asset Sale” means any sale, issuance,
conveyance, transfer, lease, assignment or other disposition by the Company or
any Restricted Subsidiary to any Person other than the Company or any
Restricted Subsidiary (including by means of a Sale and Leaseback Transaction
or a merger or consolidation) (collectively, for purposes of this definition, a
“transfer”), in one transaction or
a series of related transactions, of any assets of the Company or any of its
Restricted Subsidiaries other than in the ordinary course of business.  For purposes of this definition, the term
“Asset Sale” shall not include:


 


(1)                                  transfers of cash or Cash Equivalents;


 


(2)                                  transfers of assets
(including Equity Interests) that are governed by, and made in accordance with,
Section 5.01 hereof;


 


(3)                                  Permitted Investments
and Restricted Payments permitted under Section 4.07 hereof;


 


(4)                                  the creation of or
realization on any Lien permitted under this Indenture;


 


(5)                                  transfers of damaged,
worn-out or obsolete equipment or assets that, in the Company’s reasonable
judgment, are no longer used or useful in the business of the Company or the Restricted
Subsidiaries;


 


(6)                                  sales or grants of
licenses or sublicenses to use the patents, trade secrets, know-how and other
intellectual property, and licenses, leases or subleases of other assets, of
the Company or any Restricted Subsidiary to the extent not materially
interfering with the business of the Company and the Restricted Subsidiaries;


 


(7)                                  sales of Receivables
of the type specified in the definition of “Qualified Securitization
Transaction” to a Securitization Entity for the Fair Market Value thereof;


 


(8)                                  any sale, transfer or
disposition of assets that have been repossessed or foreclosed upon in the
ordinary course of business;


 


(9)                                  any sale of assets as
the result of any casualty event, condemnation or taking;


 


(10)                            any exchange of assets related
to a Permitted Business of comparable market value, as determined in good faith
by the Company, which in the event of an exchange of assets with a Fair Market
Value (x)  in excess of $2.0 million
shall be evidenced by an Officers’ Certificate, and (y) in excess


 


2

















 


of $5.0 million shall be set forth in a resolution approved in good
faith by at least a majority of the Board of Directors of the Company;


 


(11)                            any sale or other
disposition of assets to a Permitted Joint Venture solely in exchange for
Equity Interests; provided that
such Investment is made pursuant to clause (8) of the definition of Permitted
Investments;


 


(12)                            the issuance of Equity
Interests by a Restricted Subsidiary of the Company to the Company or to any
Restricted Subsidiary;


 


(13)                            surrender or waiver of
contract rights or the settlement, release or surrender of contract, tort or
other claims; and


 


(14)                            any transfer or series of
related transfers that, but for this clause, would be Asset Sales, if after
giving effect to such transfers, the aggregate Fair Market Value of the assets
transferred in such transaction or any such series of related transactions does
not exceed $2.0 million.


 


“Attributable Indebtedness”, when used with
respect to any Sale and Leaseback Transaction, means, as at the time of
determination, the present value (discounted at the rate borne by the Notes,
compounded on a semi-annual basis) of the total obligations of the lessee for
rental payments during the remaining term of the lease included in any such
Sale and Leaseback Transaction.


 


“Bankruptcy Law” means Title 11 of the
United States Code, as amended, or any similar federal or state law for the
relief of debtors.


 


“Board of Directors” means, with respect to
any Person, (i) in the case of any corporation, the board of directors of such
Person, (ii) in the case of any limited liability company, the board of
managers of such Person, (iii) in the case of any partnership, the Board of
Directors of the general partner of such Person and (iv) in any other case, the
functional equivalent of the foregoing or, in each case, other than for
purposes of the definition of “Change of Control,” any duly authorized
committee of such body.


 


“Borrowing Base” means, as of any date, an
amount equal to 85% of Finance Receivables at the end of the fiscal quarter
preceding such date, after giving effect on a pro forma basis to any Asset
Acquisitions or dispositions that are consummated on or prior to the applicable
date of determination.


 


“Business Day” means a day other than a
Saturday, Sunday or other day on which banking institutions in New York or
Illinois are authorized or required by law to close.


 


“Capitalized Lease” means a lease required
to be capitalized for financial reporting purposes in accordance with GAAP.


 


“Capitalized Lease Obligations” of any
Person means the obligations of such Person to pay rent or other amounts under
a Capitalized Lease, and the amount of such obligation shall be the capitalized
amount thereof determined in accordance with GAAP.


 


“Cash Equivalents” means:


 


(1)                                  United States legal tender or, in the case of
any Foreign Subsidiary, such local currencies held by it from time to time in
the ordinary course of business;


 


3

















 


(2)                                  marketable obligations issued or directly and
fully guaranteed or insured by the United States of America or any agency or
instrumentality thereof (provided
that the full faith and credit of the United States of America is pledged in
support thereof), maturing within 365 days of the date of acquisition thereof;


 


(3)                                  demand and time deposits and certificates of
deposit or acceptances, maturing within 365 days of the date of acquisition
thereof, bankers’ acceptances with maturities not exceeding six months and
overnight bank deposits, in each case with any financial institution that is a
member of the Federal Reserve System having combined capital and surplus and
undivided profits of not less than $500 million and is assigned at least a “B”
rating by Thomson Financial BankWatch;


 


(4)                                  commercial paper maturing no more than 365
days from the date of creation and rated at least A-2 by S&P or at least
P-2 by Moody’s;


 


(5)                                  repurchase obligations with a term of not
more one year for underlying securities of the types described in clauses (2)
and (3) above entered into with any commercial bank meeting the specifications
of clause (3) above;


 


(6)                                  marketable direct obligations issued by the
United States of America or any political subdivision of any state or any
public instrumentality thereof having one of the two highest ratings obtainable
from Moody’s or S&P and in each case maturing within one year after the
date of acquisition; and


 


(7)                                  investments in money market or other mutual
funds at least 90% of whose assets comprise securities of the types described
in clauses (1) through (6) above.


 


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


 


(1)                                  after the Issue Date, any “person” or “group”
(as such terms are used in Sections 13(d) and 14(d) of the Exchange Act, other
than one or more Permitted Holders, is or becomes the beneficial owner (as
defined in Rules 13d-3 and 13d-5 under the Exchange Act), directly or
indirectly, of Voting Stock representing more than 50% of the voting power of
the total outstanding Voting Stock of the Company;


 


(2)                                  during any period of two consecutive years,
individuals who at the beginning of such period constituted the Board of
Directors (together with any new directors whose election to such Board of Directors
or whose nomination for election by the stockholders of the Company was
approved by a vote of the majority of the directors of the Company then still
in office who were either directors at the beginning of such period or whose
election or nomination for election was previously so approved) cease for any
reason to constitute a majority of the Board of Directors of the Company;


 


(3)                                  (a) all or substantially all of the assets of
the Company and the Restricted Subsidiaries are sold or otherwise transferred
to any Person other than a Wholly-Owned Restricted Subsidiary or one or more
Permitted Holders or (b) the Company consolidates or merges with or into
another Person or any Person consolidates or merges with or into the Company,
in either case under this clause (3)(b), in one transaction or a series of
related transactions in which immediately after the consummation thereof
Persons beneficially owning (as defined in Rules 13d-3 and 13d-5 under the
Exchange Act), directly or indirectly, Voting Stock representing in the
aggregate a majority of the total voting power of the Voting Stock of the
Company immediately prior to such consummation do not beneficially own (as
defined in Rules 13d-3 and 13d-5 under the Exchange Act), directly or
indirectly, Voting Stock representing a


 


4

















 


majority
of the total voting power of the Voting Stock of the Company or the surviving
or transferee Person; or


 


(4)                                  the Company shall adopt a plan of liquidation
or dissolution or any such plan shall be approved by the stockholders of the
Company.


 


Notwithstanding
the forgoing, (i) a Person shall not be deemed to have beneficial ownership of
securities subject to a stock purchase agreement, merger agreement or similar
agreement until the consummation of the transactions contemplated by such
agreement, (ii) any holding company whose only significant asset is Equity
Interests of the Company shall not itself be considered a “person” or “group”
for purposes of clause (1) or (2) above and (iii) the Spin-Off shall not
constitute a Change of Control unless, as a result of the Spin-Off, any Person
is or becomes the beneficial owner (as defined in Rules 13d-3 and 13d-5 under
the Exchange Act), directly or indirectly, of Voting Stock representing more
than 50% of the voting power of the total outstanding Voting Stock of the
Company.


 


“Clearstream”   means ClearStream
Bank S.A.


 


“Company” means ADESA, Inc., and any
and all successors thereto and not to any of its Subsidiaries.


 


“Consolidated Amortization Expense” for any
period means the amortization expense of the Company and the Restricted
Subsidiaries for such period, determined on a consolidated basis in accordance
with GAAP.


 


“Consolidated Cash Flow” for any period
means, without duplication, the sum of the amounts for such period of


 


(1)                                  Consolidated Net Income, plus


 


(2)                                  in each case only to the extent (and in the
same proportion) deducted in determining Consolidated Net Income and with
respect to the portion of Consolidated Net Income attributable to any
Restricted Subsidiary only if a corresponding amount would be permitted at the
date of determination to be distributed to the Company by such Restricted
Subsidiary without prior approval (that has not been obtained), pursuant to the
terms of its charter and all agreements, instruments, judgments, decrees,
orders, statutes, rules and governmental regulations applicable to such
Restricted Subsidiary or its stockholders,


 


(a)                                  Consolidated Income Tax Expense,


 


(b)                                 Consolidated Amortization Expense (but only
to the extent not included in Consolidated Interest Expense),


 


(c)                                  Consolidated Depreciation Expense,


 


(d)                                 Consolidated Interest Expense,


 


(e)                                  non-cash expenses relating to employee stock
option plans of the Company and options granted by the Company that have been
expensed, and


 


5

















 


(f)                                    all other non-cash items reducing the
Consolidated Net Income (excluding any non-cash charge that results in an
accrual of a reserve for cash charges in any future period) for such period,


 


in
each case determined on a consolidated basis in accordance with GAAP, minus


 


(3)                                  the aggregate amount of all non-cash items,
determined on a consolidated basis, to the extent such items increased
Consolidated Net Income for such period, other than the accrual of revenue in
the ordinary course of business.


 


“Consolidated Depreciation Expense” for any
period means the depreciation expense of the Company and the Restricted
Subsidiaries for such period, determined on a consolidated basis in accordance
with GAAP.


 


“Consolidated Income Tax Expense” for any
period means the provision for taxes of the Company and the Restricted
Subsidiaries, determined on a consolidated basis in accordance with GAAP.


 


“Consolidated Interest Coverage Ratio” means
the ratio of Consolidated Cash Flow during the most recent four consecutive
full fiscal quarters for which financial statements are available (the “Four-Quarter Period”) ending on or prior to
the date of the transaction giving rise to the need to calculate the
Consolidated Interest Coverage Ratio (the “Transaction
Date”) to Consolidated Interest Expense for the Four-Quarter
Period.  For purposes of this
definition, Consolidated Cash Flow and Consolidated Interest Expense shall be
calculated after giving effect on a pro forma basis for the period of such
calculation to:


 


(1)                                  the incurrence of any Indebtedness or the
issuance of any Preferred Stock of the Company or any Restricted Subsidiary
(and the application of the proceeds thereof) and any repayment of other
Indebtedness or redemption of other Preferred Stock (and the application of the
proceeds therefrom) (other than the incurrence or repayment of Indebtedness in
the ordinary course of business for working capital purposes pursuant to any
revolving credit arrangement) occurring during the Four-Quarter Period or at
any time subsequent to the last day of the Four-Quarter Period and on or prior
to the Transaction Date, as if such incurrence, repayment, issuance or
redemption, as the case may be (and the application of the proceeds thereof),
occurred on the first day of the Four-Quarter Period; and


 


(2)                                  any Asset Sale or Asset Acquisition
(including, without limitation, any Asset Acquisition giving rise to the need
to make such calculation as a result of the Company or any Restricted
Subsidiary (including any Person who becomes a Restricted Subsidiary as a
result of such Asset Acquisition) incurring Acquired Indebtedness and also
including any Consolidated Cash Flow (including any pro forma expense and cost
reductions calculated on a basis consistent with Regulation S-X under the
Exchange Act) associated with any such Asset Acquisition) occurring during the
Four-Quarter Period or at any time subsequent to the last day of the
Four-Quarter Period and on or prior to the Transaction Date, as if such Asset
Sale or Asset Acquisition (including the incurrence of, or assumption or
liability for, any such Indebtedness or Acquired Indebtedness) occurred on the
first day of the Four-Quarter Period.


 


In
calculating Consolidated Interest Expense for purposes of determining the
denominator (but not the numerator) of this Consolidated Interest Coverage
Ratio:


 


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


 


6

















 


(2)                                  if interest on any Indebtedness actually
incurred on the Transaction Date may optionally be determined at an interest
rate based upon a factor of a prime or similar rate, a eurocurrency interbank
offered rate, or other rates, then the interest rate in effect on the Transaction
Date will be deemed to have been in effect during the Four-Quarter Period; and


 


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


 


“Consolidated Interest Expense” for any
period means the sum, without duplication, of the total interest expense of the
Company and the Restricted Subsidiaries for such period, determined on a
consolidated basis in accordance with GAAP and including without duplication,


 


(1)                                  the interest component of all payments
associated with Capitalized Lease Obligations and Attributable Indebtedness,


 


(2)                                  the net costs associated with Hedging
Obligations,


 


(3)                                  amortization of debt discount,


 


(4)                                  the interest portion of any deferred payment
obligations,


 


(5)                                  all non-cash, pay-in-kind or similar interest
expense,


 


(6)                                  capitalized interest,


 


(7)                                  the product of (a) all cash dividend payments
on any series of Disqualified Equity Interests of the Company or any Preferred
Stock of any Restricted Subsidiary (other than any such Disqualified Equity
Interests or any Preferred Stock held by the Company or a Wholly-Owned
Restricted Subsidiary or to the extent paid in Qualified Equity Interests), multiplied by (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 the Company and the Restricted
Subsidiaries, expressed as a decimal,


 


(8)                                  all interest payable with respect to
discontinued operations, and


 


(9)                                  all interest on any Indebtedness described in
clause (7) or (8) of the definition of Indebtedness.


 


Consolidated
Interest Expense shall be calculated excluding unrealized gains and losses with
respect to Hedging Obligations.


 


“Consolidated Net Income” for any period
means the net income (or loss) of the Company and the Restricted Subsidiaries
for such period determined on a consolidated basis in accordance with GAAP; provided that there shall be excluded from
such net income (to the extent otherwise included therein), without
duplication:


 


(1)                                  the net income (or loss) of any Person (other
than a Restricted Subsidiary or EndTrust Lease End Services, LLC) in which any
Person other than the Company and the Restricted Subsidiaries has an ownership
interest, except to the extent that cash in an amount equal to any such income
has


 


7

















 


actually
been received by the Company or any of its Wholly-Owned Restricted Subsidiaries
during such period;


 


(2)                                  except to the extent includible in the
consolidated net income of the Company pursuant to the foregoing clause (1),
the net income (or loss) of any Person that accrued prior to the date that (a)
such Person becomes a Restricted Subsidiary or is merged into or consolidated
with the Company or any Restricted Subsidiary or (b) the assets of such Person
are acquired by the Company or any Restricted Subsidiary;


 


(3)                                  the net income of any Restricted Subsidiary
during such period to the extent that the declaration or payment of dividends
or similar distributions by such Restricted Subsidiary of that income is not
permitted by operation of the terms of its charter or any agreement,
instrument, judgment, decree, order, statute, rule or governmental regulation
applicable to such Subsidiary during such period, except that the Company’s
equity in a net loss of any such Restricted Subsidiary for such period shall be
included in determining Consolidated Net Income;


 


(4)                                  for the purposes of calculating the
Restricted Payments Basket only, in the case of a successor to the Company by
consolidation, merger or transfer of its assets, any income (or loss) of the
successor prior to such merger, consolidation or transfer of assets;


 


(5)                                  other than for purposes of calculating the
Restricted Payments Basket, any gain (or loss), together with any related
provisions for taxes on any such gain (or the tax effect of any such loss),
realized during such period by the Company or any Restricted Subsidiary upon
(a) the acquisition of any securities, or the extinguishment of any
Indebtedness, of the Company or any Restricted Subsidiary or (b) any Asset Sale
by the Company or any Restricted Subsidiary;


 


(6)                                  gains and losses due solely to fluctuations
in currency values and the related tax effects according to GAAP;


 


(7)                                  unrealized gains and losses with respect to
Hedging Obligations;


 


(8)                                  the cumulative effect of any change in
accounting principles; and


 


(9)                                  other than for purposes of calculating the
Restricted Payments Basket, any extraordinary or nonrecurring gain (or
extraordinary or nonrecurring loss), together with any related provision for
taxes on any such extraordinary or nonrecurring gain (or the tax effect of any
such extraordinary or nonrecurring loss), realized by the Company or any
Restricted Subsidiary during such period.


 


In
addition any return of capital with respect to an Investment that increased the
Restricted Payments Basket pursuant to clause (3)(d) of the first paragraph of
Section 4.07 hereof or decreased the amount of Investments outstanding
pursuant to clause (13) of the definition of “Permitted Investments” shall be
excluded from Consolidated Net Income for purposes of calculating the
Restricted Payments Basket.


 


“Consolidated Net Tangible Assets” means,
with respect to the Company as of any date, the aggregate of the assets of the
Company and its Restricted Subsidiaries excluding (1) goodwill, patents, trade
names, trade marks, copyrights, franchises and other assets properly classified
as intangible assets in accordance with GAAP, as of such date on a consolidated
basis, determined in accordance with GAAP and (2) total current liabilities
(excluding any Indebtedness which, at the option of the Company or any
Restricted Subsidiary, is renewable or extendable to a term exceeding 12 months
and which is included in current liabilities and further excluding any deferred
income taxes which are included in current liabilities).  In the event that information relating to


 


8

















 


Consolidated Net Tangible Assets is not available as of any date, then
the most recently available information will be utilized.


 


“Contribution Transactions” means the
contribution or transfer, at any time (including after the consummation of the
IPO) by ALLETE, Inc. to the Company or any Subsidiary of property, assets or
Equity Interests that are owned or controlled by ALLETE, Inc. prior to the
consummation of the IPO, including, without limitation, transfers or
contributions in connection with the Joint Aircraft Agreement or ADESA San
Diego LLC.


 


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


 


 “Coverage
Ratio Exception” has the meaning set forth in the proviso in the
first paragraph of Section 4.09.


 


“Credit Agreement” means the Credit
Agreement dated on or about the Issue Date by and among the Company, as
Borrower, UBS AG, Stamford Branch, as administrative agent, UBS Securities LLC,
as arranger and syndication agent, and the other lenders named therein,
including any notes, guarantees, collateral and security documents, instruments
and agreements executed in connection therewith (including Hedging Obligations
related to the Indebtedness incurred thereunder), and in each case as amended
or refinanced from time to time.


 


“Credit Facilities” means one or more debt
facilities or debt issuances (which may be outstanding at the same time and
including, without limitation, the Credit Agreement) providing for revolving
credit loans, term loans or letters of credit notes, bonds, debentures or other
similar instruments and, in each case, as such agreements may be amended,
amended and restated, supplemented, modified, extended, refinanced, replaced or
otherwise restructured, in whole or in part from time to time (including
increasing the amount of available borrowings thereunder or adding Subsidiaries
of the Company as additional borrowers or guarantors thereunder) with respect
to all or any portion of the Indebtedness under such agreement or agreements or
any successor or replacement agreement or agreements and whether by the same or
any other agent, lender or group of lenders (including any increase in
principal amount resulting from the incurrence of Indebtedness in accordance
with the Coverage Ratio Exception).


 


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


 


“Default” means (1) any Event of Default or
(2) any event, act or condition that, after notice or the passage of time or
both, would be an Event of Default.


 


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


 


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


 


 “Designated
Senior Debt” means (1) Senior Debt and Guarantor Senior Debt under
or in respect of the Credit Facilities and (2) any other Indebtedness
constituting Senior Debt or Guarantor Senior Debt which, at


 


9

















 


the time of determination, has an aggregate principal amount of at
least $25.0 million and is specifically designated in the instrument evidencing
such Senior Debt as “Designated Senior Debt.”


 


“Disqualified Equity Interests” of any
Person means any class of Equity Interests of such Person that, by its terms,
or by the terms of any related agreement or of any security into which it is
convertible, puttable or exchangeable, is, or upon the happening of any event
or the passage of time would be, required to be redeemed by such Person,
whether or not at the option of the holder thereof, or matures or is
mandatorily redeemable, pursuant to a sinking fund obligation or otherwise, in
whole or in part, on or prior to the date which is 91 days after the final
maturity date of the Notes; provided,
however, that any class of Equity
Interests of such Person that, by its terms, authorizes such Person to satisfy
in full its obligations with respect to the payment of dividends or upon
maturity, redemption (pursuant to a sinking fund or otherwise) or repurchase
thereof or otherwise by the delivery of Equity Interests that are not
Disqualified Equity Interests, and that is not convertible, puttable or
exchangeable for Disqualified Equity Interests or Indebtedness, will not be
deemed to be Disqualified Equity Interests so long as such Person satisfies its
obligations with respect thereto solely by the delivery of Equity Interests
that are not Disqualified Equity Interests; provided, further,
however, that any Equity Interests that would not constitute
Disqualified Equity Interests but for provisions thereof giving holders thereof
(or the holders of any security into or for which such Equity Interests are
convertible, exchangeable or exercisable) the right to require the Company to
redeem such Equity Interests upon the occurrence of a change in control or an
asset sale occurring prior to the 91st day after the final maturity date of the
Notes shall not constitute Disqualified Equity Interests if the change in
control or asset sale provisions applicable to such Equity Interests are no
more favorable to such holders than the provisions described under Sections
4.10 and 4.15 hereof, respectively, and such Equity Interests specifically
provide that the Company shall not redeem any such Equity Interests pursuant to
such provisions prior to the Company’s purchase of the Notes as required
pursuant to the provisions described under Sections 4.10 and 4.15 hereof,
respectively.


 


“Domestic Restricted Subsidiary” means a
Restricted Subsidiary other than a Foreign Subsidiary.


 


“Equity Interests” of any Person means (1)
any and all shares or other equity interests (including common stock, preferred
stock, limited liability company interests and partnership interests) in such
Person and (2) all rights to purchase, warrants or options (whether or not
currently exercisable), participations or other equivalents of or interests in
(however designated) such shares or other interests in such Person.


 


“Euroclear” means Morgan Guaranty Trust
Company of New York, Brussels office, as operator of the Euroclear system.


 


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


 


“Fair Market Value” means, with respect to
any asset, the price (after taking into account any liabilities relating to
such assets) that would be negotiated in an arm’s-length transaction for cash
between a willing seller and a willing and able buyer, neither of which is
under any compulsion to complete the transaction, as such price is determined
in good faith by the Board of Directors of the Company or a duly authorized
committee thereof, as evidenced by a resolution of such Board or committee.


 


“Finance Receivables” means Receivables,
which are originated in ordinary course transactions by AFC or a Securitization
Entity, that are included on the Company’s balance sheet.


 


 “Foreign
Subsidiary” means any Restricted Subsidiary which (i) is not
organized under the laws of (x) the United States or any state thereof or (y)
the District of Columbia and (ii) conducts substantially all of its business
operations outside the United States of America.


 


10

















 


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


 


“Global Note Legend”   means the legend set forth in Section 2.06(2)(a), which is
required to be placed on all Global Notes issued under this Indenture.


 


“Global Notes”   means each of the
Global Notes, substantially in the form of Exhibit A hereto issued in
accordance with Section 2.06 hereof.


 


“guarantee” means a direct or indirect
guarantee by any Person of any Indebtedness of any other Person and includes
any obligation, direct or indirect, contingent or otherwise, of such
Person:  (1) to purchase or pay (or advance
or supply funds for the purchase or payment of) Indebtedness of such other
Person (whether arising by virtue of partnership arrangements, or by agreements
to keep-well, to purchase assets, goods, securities or services (unless such
purchase arrangements are on arm’s-length terms and are entered into in the
ordinary course of business), to take-or-pay, or to maintain financial
statement conditions or otherwise); or (2) entered into for purposes of
assuring in any other manner the obligee of such Indebtedness of the payment
thereof or to protect such obligee against loss in respect thereof (in whole or
in part); “guarantee,” when used
as a verb, and “guaranteed” have
correlative meanings.


 


“Guarantor Senior Debt” means, with respect
to any Guarantor, the principal of, premium, if any, and interest (including
any interest accruing subsequent to the filing of a petition of bankruptcy at
the rate provided for in the documentation with respect thereto, whether or not
such interest is an allowed claim under applicable law) on any Indebtedness of
such Guarantor, whether outstanding on the Issue Date or thereafter created,
incurred or assumed, unless, in the case of any particular Indebtedness, the
instrument creating or evidencing the same or pursuant to which the same is
outstanding expressly provides that such Indebtedness shall not be senior in
right of payment to the Notes.


 


Without
limiting the generality of the foregoing, “Guarantor Senior Debt” shall also
include the principal of, premium, if any, interest (including any interest
accruing subsequent to the filing of a petition of bankruptcy at the rate
provided for in the documentation with respect thereto, whether or not such
interest is an allowed claim under applicable law) on, and all other amounts
owing in respect of:


 


(1)                                  all monetary obligations of every nature of
such Guarantor under, or with respect to, the Credit Facilities, including,
without limitation, obligations to pay principal and interest, reimbursement
obligations under letters of credit, fees, expenses and indemnities (and
guarantees thereof); and


 


(2)                                  all Hedging Obligations in respect of the
Credit Facilities;


 


in
each case whether outstanding on the Issue Date or thereafter incurred.


 


Notwithstanding
the foregoing, “Guarantor Senior Debt” shall not include:


 


(1)                                  any Indebtedness of such Guarantor to the
Company or any of its Subsidiaries;


 


(2)                                  Indebtedness to, or guaranteed on behalf of,
any director, officer or employee of the Company or any of its other
Subsidiaries (including, without limitation, amounts owed for compensation);


 


11

















 


(3)                                  obligations to trade creditors and other
amounts incurred (but not under the Credit Facilities) in connection with
obtaining goods, materials or services;


 


(4)                                  Indebtedness represented by Disqualified
Equity Interests;


 


(5)                                  any liability for taxes owed or owing by such
Guarantor;


 


(6)                                  that portion of any Indebtedness incurred in
violation of Section 4.09 hereof (but, as to any such obligation, no such
violation shall be deemed to exist for purposes of this clause (6) if the
holder(s) of such obligation or their representative shall have received an
officers’ certificate of such Guarantor to the effect that the incurrence of
such Indebtedness does not (or, in the case of revolving credit indebtedness,
that the incurrence of the entire committed amount thereof at the date on which
the initial borrowing thereunder is made would not) violate such provisions of
this Indenture);


 


(7)                                  Indebtedness which, when incurred and without
respect to any election under Section 1111(b) of Title 11, United States
Code, is without recourse to such Guarantor; and


 


(8)                                  any Indebtedness which is, by its express
terms, subordinated in right of payment to any other Indebtedness of such
Guarantor.


 


“Guarantors” means each Person that is
required to, or at the election of the Company does, become a Guarantor by the
terms of this Indenture after the Issue Date, in each case, until such Person
is released from its Note Guarantee in accordance with the terms of this
Indenture.


 


“Hedging Obligations” of any Person means
the obligations of such Person under any swap, cap, collar, forward purchase or
similar agreement or arrangement with respect to  interest rates, currency exchange rates or commodity prices, either
generally or under specific contingencies.


 


“Holder” means any registered holder, from
time to time, of the Notes.


 


“incur” means, with respect to any
Indebtedness or Obligation, incur, create, issue, assume, guarantee or
otherwise become directly or, indirectly liable, contingently or otherwise,
with respect to such Indebtedness or Obligation; provided that (1) the Indebtedness of a Person existing at
the time such Person became a Restricted Subsidiary shall be deemed to have
been incurred by such Restricted Subsidiary and (2) neither the accrual of
interest nor the accretion of original issue discount or the accretion or
accumulation of dividends on any Equity Interests shall not be deemed to be an
incurrence of Indebtedness.


 


“Indebtedness” of any Person at any date
means, without duplication:


 


(1)                                  all liabilities, contingent or otherwise, of
such Person for borrowed money (whether or not the recourse of the lender is to
the whole of the assets of such Person or only to a portion thereof);


 


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


 


(3)                                  all reimbursement obligations of such Person
in respect of letters of credit, letters of guaranty, bankers’ acceptances and
similar credit transactions;


 


12

















 


(4)                                  all obligations of such Person to pay the
deferred and unpaid purchase price of property or services due more than six
months after such property is acquired or such services are completed, except
trade payables and accrued expenses incurred by such Person in the ordinary
course of business;


 


(5)                                  the maximum fixed redemption or repurchase
price of all Disqualified Equity Interests of such Person;


 


(6)                                  all Capitalized Lease Obligations of such
Person;


 


(7)                                  all Indebtedness of others secured by a Lien
on any asset of such Person, whether or not such Indebtedness is assumed by
such Person;


 


(8)                                  all Indebtedness of others guaranteed by such
Person to the extent of such guarantee; provided
that Indebtedness of the Company or its Subsidiaries that is guaranteed by the
Company or the Company’s Subsidiaries shall only be counted once in the
calculation of the amount of Indebtedness of the Company and its Subsidiaries
on a consolidated basis;


 


(9)                                  all Attributable Indebtedness; and


 


(10)                            to the extent not otherwise included in this
definition, Hedging Obligations of such Person;


 


provided, however, that for the avoidance of doubt, undivided ownership interests in
Receivables owned by Persons other than the Company or a Restricted Subsidiary
in connection with the Receivables Purchase Agreement or any Qualified
Securitization Transaction shall not constitute Indebtedness.


 


The
amount of any Indebtedness which is incurred at a discount to the principal
amount at maturity thereof as of any date shall be deemed to have been incurred
at the accreted value thereof as of such date. 
The amount of Indebtedness of any Person at any date shall be the
outstanding balance at such date of all unconditional obligations as described
above, the maximum liability of such Person for any such contingent obligations
at such date and, in the case of clause (7), the lesser of (a) the Fair Market
Value of any asset subject to a Lien securing the Indebtedness of others on the
date that the Lien attaches and (b) the amount of the Indebtedness
secured.  For purposes of clause (5),
the “maximum fixed redemption or repurchase price” of any Disqualified Equity
Interests that do not have a fixed redemption or repurchase price shall be
calculated in accordance with the terms of such Disqualified Equity Interests
as if such Disqualified Equity Interests were redeemed or repurchased on any
date on which an amount of Indebtedness outstanding shall be required to be
determined pursuant to this Indenture.


 


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


 


“Independent Director” means a director of
the Company who


 


(1)                                  is independent with respect to the
transaction at issue;


 


(2)                                  does not have any material financial interest
in the Company or any of its Affiliates (other than as a result of holding
securities of the Company); and


 


(3)                                  has not and whose Affiliates or affiliated
firm has not, at any time during the twelve months prior to the taking of any
action hereunder, directly or indirectly, received, or entered into any


 


13

















 


understanding
or agreement to receive, any compensation, payment or other benefit, of any
type or form, from the Company or any of its Affiliates, other than customary
directors’ fees for serving on the Board of Directors of the Company or any
Affiliate and reimbursement of out-of-pocket expenses for attendance at the
Company’s or Affiliate’s board and board committee meetings.


 


“Independent Financial Advisor” means an
accounting, appraisal or investment banking firm of nationally recognized
standing that is, in the reasonable judgment of the Company’s Board of
Directors, qualified to perform the task for which it has been engaged and
disinterested and independent with respect to the Company and its Affiliates.


 


“Initial Notes”   means the first
$125.0 million aggregate principal amount of [    ]% Senior
Subordinated Notes due 2012 issued under this Indenture on the Issue Date.


 


“interest” means, with respect to the Notes,
interest on the Notes.


 


“Investment Grade Rating” means a rating of
Baa3 or better by Moody’s and BBB- or better by S&P.


 


“Investments” of any Person means:


 


(1)                                  all direct or indirect investments by such
Person in any other Person in the form of loans, advances or capital
contributions or other credit extensions constituting Indebtedness of such
other Person, and any guarantee of Indebtedness of any other Person;


 


(2)                                  all purchases (or other acquisitions for
consideration) by such Person of Indebtedness, Equity Interests or other
securities of any other Person (other than any such purchase that constitutes a
Restricted Payment of the type described in clause (2) of the definition
thereof);


 


(3)                                  all other items that would be classified as
investments on a balance sheet of such Person prepared in accordance with GAAP
(including, if required by GAAP, purchases of assets outside the ordinary
course of business); and


 


(4)                                  the Designation of any Subsidiary as an
Unrestricted Subsidiary.


 


Except
as otherwise expressly specified in this definition, the amount of any
Investment (other than an Investment made in cash) shall be the Fair Market
Value thereof on the date such Investment is made.  The amount of any Investment pursuant to clause (4) shall be the Designation
Amount determined in accordance with Section 4.13 hereof.  If the Company or any Restricted Subsidiary
sells or otherwise disposes of any Equity Interests of any Restricted
Subsidiary, or any Restricted Subsidiary issues any Equity Interests, in either
case, such that, after giving effect to any such sale or disposition, such
Person is no longer a Subsidiary, the Company shall be deemed to have made an
Investment on the date of any such sale or other disposition equal to the Fair
Market Value of the Equity Interests of and all other Investments in such
Restricted Subsidiary retained. 
Notwithstanding the foregoing, purchases or redemptions of Equity
Interests of the Company shall be deemed not to be Investments.


 


“IPO” means the public offering of common
stock of the Company pursuant to a registration statement on Form S-1
originally filed with the SEC on March 11, 2004.


 


“IPO Transactions” means (1) the repayment
of principal and accrued interest on an intercompany note in the amount of
$100.0 million owed to ALLETE, Inc., representing the payment by the Company of
a dividend to ALLETE, Inc. on May [   ], 2004; (2) the
repurchase of Equity Interests of the Company in an


 


14

















 


amount not to exceed $166.0 million; and (3) the portion of fees and
expenses in connection with the IPO and related transactions that are paid by
the Company.


 


“Issue Date” means the date on which the
Initial Notes are originally issued.


 


“Joint Aircraft Agreement” means the Joint
Aircraft Ownership and Management Agreement, dated
[        ], 2004, between the Company
and ALLETE, Inc.


 


“Liability Management Transactions” means
(A) redemption in full of the following debt issues:  (i) ADESA Corporation 7.7% Senior Notes, Series A, due 2006, and
(ii) ADESA Corporation 8.10% Senior Notes, Series B, Due 2010; (B) repayment in
full of the following: (i) a note payable in the amount of $45 million relating
to the Company’s used vehicle auction facility located in Tracy, California, (ii)
a note payable in the amount of $28.4 million relating to the Company’s used
vehicle auction facilities located in Boston, Massachusetts, Charlotte, North
Carolina and Knoxville, Tennessee, (iii) a note payable to Interstate Auto
Auction in the amount of $1.8 million; and (iv) all amounts outstanding under
the Amended and Restated Credit Agreement, dated of July 25, 2003, between
ADESA Corporation and Bank One, N.A.; (C) consents relating to the Revolving
Credit Agreement, dated March 22, 2001, between Automotive Recovery
Services, Inc. and Fleet National Bank; (D) amendment of the Receivables
Purchase Agreement; and (E) termination of the guaranty by ALLETE, Inc. of the
Master Lease Agreement, dated December 4, 2001, between LaSalle National
Leasing Corporation and ADESA Corporation.


 


“Lien” means, with respect to any asset, any
mortgage, deed of trust, lien (statutory or other), pledge, lease, easement,
restriction, covenant, charge, security interest or other encumbrance of any
kind or nature 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.


 


“Moody’s” means Moody’s Investors Service,
Inc., and its successors.


 


“Net Available Proceeds” means, with respect
to any Asset Sale, the proceeds thereof in the form of cash or Cash
Equivalents, net of


 


(1)                                  brokerage commissions and other fees and
expenses (including fees, discounts and expenses of legal counsel, accountants
and investment banks, consultants and placement agents) of such Asset Sale;


 


(2)                                  provisions for taxes payable as a result of
such Asset Sale (after taking into account any available tax credits or
deductions and any tax sharing arrangements);


 


(3)                                  amounts required to be paid to any Person
(other than the Company or any Restricted Subsidiary) owning a beneficial
interest in the assets subject to the Asset Sale or having a Lien thereon;


 


(4)                                  payments of unassumed liabilities (not
constituting Indebtedness) relating to the assets sold at the time of, or
within 90 days after the date of, such Asset Sale;


 


(5)                                  the principal amount, premium or penalty, if
any, interest and other amounts on any Indebtedness for borrowed money which is
secured by a Lien on the properties sold in such Asset Sale (so long as such
Lien was permitted to encumber such properties at the time of such sale) and
which is repaid with such proceeds (other than any such Indebtedness assumed by
the purchaser of such properties); and


 


15

















 


(6)                                  appropriate amounts to be provided by the
Company or any Restricted Subsidiary, as the case may be, as a reserve required
in accordance with GAAP against any adjustment in the sale price of such asset
or assets or liabilities associated with such Asset Sale and retained by the
Company or any Restricted Subsidiary, as the case may be, after such Asset
Sale, including pensions and other postemployment benefit liabilities,
liabilities related to environmental matters and liabilities under any
indemnification obligations associated with such Asset Sale, all as reflected
in an Officers’ Certificate delivered to the Trustee; provided, however,
that any amounts remaining after adjustments, revaluations or liquidations of
such reserves shall constitute Net Available Proceeds.


 


“Non-Recourse Debt” means Indebtedness of an
Unrestricted Subsidiary:


 


(1)                                  as to which neither the Company nor any
Restricted Subsidiary (a) provides credit support of any kind (including any
undertaking, agreement or instrument that would constitute Indebtedness) other
than a pledge of the Equity Interests of such Unrestricted Subsidiary (b) is
directly or indirectly liable as a guarantor or otherwise, other than by virtue
of a pledge of the Equity Interests of such Unrestricted Subsidiary, or (c)
constitutes the lender; and


 


(2)                                  no default with respect to which (including
any rights that the holders thereof may have to take enforcement action against
an Unrestricted Subsidiary) would permit upon notice, lapse of time or both any
holder of any other Indebtedness (other than the Credit Agreement or Notes) of
the Company or any Restricted Subsidiary to declare a default on the other
Indebtedness or cause the payment thereof to be accelerated or payable prior to
its stated maturity.


 


“Notes”  means
the Initial Notes and the Additional Notes, if any, permitted to be issued in
accordance with this Indenture.


 


 “Obligation”
means any principal, interest, penalties, fees, indemnification,
reimbursements, costs, expenses, damages and other liabilities payable under
the documentation governing any Indebtedness.


 


“Officer” means any of the following of the
Company:  the Chairman of the Board of
Directors, the Chief Executive Officer, the Chief Financial Officer, the
President, any Vice President, the Treasurer or the Secretary.


 


“Officers’ Certificate” means a certificate
signed by two Officers.


 


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


 


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


 


“Participant”   means, with respect
to the Depositary, Euroclear or Clearstream, a Person who has an account with
the Depositary, Euroclear or Clearstream, respectively (and, with respect to
DTC, shall include Euroclear and Clearstream).


 


 “Permitted
Business” means the businesses engaged in by the Company and its
Subsidiaries on the Issue Date as described in this prospectus and businesses
that are similar, ancillary or reasonably related thereto or reasonable extensions,
expansions or developments thereof.


 


16

















 


“Permitted Holder” means ALLETE, Inc. and
any of its Subsidiaries.


 


“Permitted Investment” means:


 


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


 


(2)                                  Investments in the Company by any Restricted
Subsidiary;


 


(3)                                  loans and advances to directors, employees
and officers of the Company or a Restricted Subsidiary made in the ordinary
course of business not in excess of $3.0 million at any one time outstanding;


 


(4)                                  Investments represented by Hedging Obligations
incurred pursuant to Section 4.09(4) 
hereof;


 


(5)                                  cash and Cash Equivalents;


 


(6)                                  Receivables owing to the Company or any
Restricted Subsidiary if created or acquired in the ordinary course of business
and payable or dischargeable in accordance with customary trade terms; provided, however, that such trade terms
may include such concessionary trade terms as the Company or any such
Restricted Subsidiary deems reasonable under the circumstances;


 


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


 


(8)                                  Investments made as a result of foreclosures
or repossessions in the ordinary course of business;


 


(9)                                  Investments made by the Company or any
Restricted Subsidiary as a result of consideration received in connection with
an Asset Sale made in compliance with Section 4.10 hereof;


 


(10)                            lease, utility and other similar deposits in
the ordinary course of business;


 


(11)                            Investments made by the Company or a
Restricted Subsidiary for consideration consisting only of Qualified Equity
Interests of the Company;


 


(12)                            stock, obligations or securities received in
settlement of debts created in the ordinary course of business and owing to the
Company or any Restricted Subsidiary or in satisfaction of judgments;


 


(13)                            any Investment by the Company or a Restricted
Subsidiary in a Securitization Entity; provided
that such Investment is in the form of a Purchase Money Note or an equity
interest or interests in Receivables generated by the Company or any of its
Restricted Subsidiaries;


 


(14)                            repurchases of the Notes not prohibited under
this Indenture;


 


17

















 


(15)                            payroll, travel and similar advances that are
expected at the time of such advances ultimately to be treated as expenses for
accounting purposes;


 


(16)                            Investments in existence on the date of this
Indenture and any Investment that replaces, refinances or refunds an existing
Investment; provided, that the
new Investment is in an amount that does not exceed the amount replaced,
refinanced or refunded, and is made in the same Person as the Investment
replaced, refinanced or refunded;


 


(17)                            Investments made in connection with the
consummation of the IPO Transactions, the Liability Management Transactions and
the Contribution Transactions;


 


(18)                            Investments made by AFC in the ordinary
course of business in the form of loans, advances and extensions of credit; and


 


(19)                            other Investments in an aggregate amount not
to exceed the greater of (x) $25.0 million and (y) 4.0% of Consolidated Net
Tangible Assets, at any one time outstanding (with each Investment being valued
as of the date made and without regard to subsequent changes in value).


 


The
amount of Investments outstanding at any time pursuant to clause (19) above
shall be deemed to be reduced:


 


(a)                                  upon the disposition or repayment of or
return on any Investment made pursuant to clause (19) above, by an amount equal
to the return of capital with respect to such Investment to the Company or any
Restricted Subsidiary (to the extent not included in the computation of
Consolidated Net Income); and


 


(b)                                 upon a Redesignation of an Unrestricted
Subsidiary as a Restricted Subsidiary, by an amount equal to the lesser of (x)
the Fair Market Value of the Company’s proportionate interest in such
Subsidiary immediately following such Redesignation, and (y) the aggregate
amount of Investments in such Subsidiary that increased (and did not previously
decrease) the amount of Investments outstanding pursuant to clause (19) above.


 


“Permitted Joint Venture” means any joint
venture (which may be in the form of a limited liability company, partnership,
corporation or other entity) in which the Company or any of its Restricted
Subsidiaries is a joint venturer; provided
that the joint venture is engaged solely in a Permitted Business.


 


“Permitted Junior Securities” means:


 


(1)                                  Equity Interests in the Company or any
Guarantor; or


 


(2)                                  debt securities issued pursuant to a
confirmed plan of reorganization that are subordinated in right of payment to
(a) all Senior Debt and Guarantor Senior Debt and (b) any debt securities
issued in exchange for Senior Debt to substantially the same extent as, or to a
greater extent than, the Notes and the Note Guarantees are subordinated to
Senior Debt and Guarantor Senior Debt under this Indenture.


 


“Permitted Liens”  means the following types of Liens:


 


(1)                                  Liens for taxes, assessments or governmental
charges or claims either (a) not delinquent or (b) contested in good faith by
appropriate proceedings and as to which the Company or the


 


18

















 


Restricted
Subsidiaries shall have set aside on its books such reserves as may be required
pursuant to GAAP;


 


(2)                                  statutory Liens of landlords and Liens of
carriers, warehousemen, mechanics, suppliers, materialmen, repairmen and other
Liens imposed by law incurred in the ordinary course of business or good faith
deposits in connection with bids, tenders, contracts or leases to which the
Company or any Restricted Subsidiary is a party;


 


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


 


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


 


(5)                                  judgment Liens not giving rise to a Default
so long as such Liens are adequately bonded and any appropriate legal
proceedings which may have been duly initiated for the review of such judgment
have not been finally terminated or the period within which the proceedings may
be initiated has not expired;


 


(6)                                  easements, rights-of-way, zoning restrictions
and other similar charges, restrictions or encumbrances in respect of real
property or immaterial imperfections of title which do not, in the aggregate,
impair in any material respect the ordinary conduct of the business of the
Company and the Restricted Subsidiaries taken as a whole;


 


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


 


(8)                                  Liens encumbering deposits made to secure
obligations arising from statutory, regulatory, contractual or warranty
requirements of the Company or any Restricted Subsidiary, including rights of
offset and setoff;


 


(9)                                  bankers’ Liens, rights of setoff and other
similar Liens existing solely with respect to cash and Cash Equivalents on
deposit in one or more of accounts maintained by the Company or any Restricted
Subsidiary, in each case granted in the ordinary course of business in favor of
the bank or banks with which such accounts are maintained, securing amounts
owing to such bank with respect to cash management and operating account arrangements,
including those involving pooled accounts and netting arrangements; provided that in no case shall any such
Liens secure (either directly or indirectly) the repayment of any Indebtedness;


 


(10)                            leases or subleases granted to others that do
not materially interfere with the ordinary course of business of the Company or
any Restricted Subsidiary;


 


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


 


19

















 


(12)                            Liens securing all of the Notes and Liens
securing any Note Guarantee;


 


(13)                            Liens securing Senior Debt or Guarantor
Senior Debt;


 


(14)                            Liens existing on the Issue Date securing
Indebtedness outstanding on the Issue Date;


 


(15)                            Liens in favor of the Company or a Restricted
Subsidiary;


 


(16)                            Liens securing Indebtedness under the Credit
Facilities;


 


(17)                            Liens securing Purchase Money Indebtedness
and Capitalized Lease Obligations; provided
that such Liens shall not extend to any asset other than the specified asset
being financed and additions and improvements thereon;


 


(18)                            Liens securing Acquired Indebtedness
permitted to be incurred under this Indenture; provided
that the Liens do not extend to assets not subject to such Lien at the time of
acquisition (other than improvements thereon);


 


(19)                            Liens on assets of a Person existing at the
time such Person is acquired or merged with or into or consolidated with the
Company or any such Restricted Subsidiary (and not created in anticipation or
contemplation thereof);


 


(20)                            Liens on assets of Foreign Subsidiaries
securing Indebtedness of Foreign Subsidiaries;


 


(21)                            Liens to secure Refinancing Indebtedness of
Indebtedness secured by Liens referred to in the foregoing clauses (12), (14),
(17), (18) and (19); provided
that in the case of Liens securing Refinancing Indebtedness of Indebtedness
secured by Liens referred to in the foregoing clauses (12), (14), (17), (18)
and (19), such Liens do not extend to any additional assets (other than
improvements thereon and replacements thereof);


 


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


 


(23)                            Liens resulting from foreclosure proceedings
or repossessions arising in the ordinary course of business;


 


(24)                            Liens arising or that may be deemed to arise
on Receivables, books, records and contracts supporting obligations and other
rights related thereto in favor of a Securitization Entity arising in
connection with a Qualified Securitization Transaction;


 


(25)                            Liens securing Hedging Obligations;


 


(26)                            Liens on Equity Interests of an Unrestricted
Subsidiary that secure Indebtedness or other Obligations of such Unrestricted
Subsidiary;


 


(27)                            Liens under licensing agreements entered into
in the ordinary course of business; and


 


20

















 


(28)                            Liens incurred in the ordinary course of
business of the Company or any Restricted Subsidiary with respect to
obligations (other than Indebtedness) that do not in the aggregate exceed $10.0
million at any one time outstanding.


 


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


 


“Plan of Liquidation” with respect to any
Person, means a plan that provides for, contemplates or the effectuation of
which is preceded or accompanied by (whether or not substantially
contemporaneously, in phases or otherwise): 
(1) the sale, lease, conveyance or other disposition of all or
substantially all of the assets of such Person otherwise than as an entirety or
substantially as an entirety; and (2) the distribution of all or substantially
all of the proceeds of such sale, lease, conveyance or other disposition of all
or substantially all of the remaining assets of such Person to holders of
Equity Interests of such Person.


 


“Preferred Stock” means, with respect to any
Person, any and all preferred or preference stock or other equity interests
(however designated) of such Person whether now outstanding or issued after the
Issue Date.


 


“principal” means, with respect to the
Notes, the principal of, and premium, if any, on the Notes.


 


“Purchase Money Indebtedness” means
Indebtedness, including Capitalized Lease Obligations, of the Company or any
Restricted Subsidiary incurred for the purpose of financing all or any part of
the purchase price of property, plant or equipment used in the business of the
Company or any Restricted Subsidiary or the cost of installation, construction
or improvement thereof; provided, however,
that (1) the amount of such Indebtedness shall not exceed such purchase price
or cost and (2) such Indebtedness shall be incurred within 180 days after such
acquisition of such asset by the Company or such Restricted Subsidiary or such
installation, construction or improvement.


 


“Purchase Money Note” means a promissory note
evidencing a line of credit, which may be irrevocable, from, or evidencing
other Indebtedness owed to, the Company or any of its Restricted Subsidiaries
in connection with a Qualified Securitization Transaction, which note shall be
repaid from cash available to the maker of such note, other than amounts
required to be established as reserves pursuant to agreements, amounts paid to
investors in respect of interest, principal and other amounts owing to such
investors and amounts paid in connection with the purchase of newly generated
Receivables.


 


“Qualified Equity Interests” means Equity
Interests of the Company other than Disqualified Equity Interests; provided that such Equity Interests shall
not be deemed Qualified Equity Interests to the extent sold or owed to a
Subsidiary of the Company or financed, directly or indirectly, using funds (1)
borrowed from the Company or any Subsidiary of the Company until and to the
extent such borrowing is repaid or (2) contributed, extended, guaranteed or
advanced by the Company or any Subsidiary of the Company (including, without
limitation, in respect of any employee stock ownership or benefit plan).


 


“Qualified Equity Offering” means the
issuance and sale of Qualified Equity Interests of the Company.


 


“Qualified Securitization Transaction” means
any transaction or series of transactions that may be entered into by the
Company, any Restricted Subsidiary or a Securitization Entity pursuant to which
the Company or such Restricted Subsidiary or that Securitization Entity may,
pursuant to customary terms, sell, convey or otherwise transfer to, or grant a
security interest in for the benefit of, (1) a Securitization Entity or the
Company or any Restricted Subsidiary which subsequently transfers to a
Securitization Entity (in the case of a transfer


 


21

















 


by the Company or such Restricted Subsidiary) and (2) any other Person
(in the case of transfer by a Securitization Entity), any Receivables (whether
now existing or arising or acquired in the future) of the Company or any
Restricted Subsidiary which arose in the ordinary course of business of the
Company or such Restricted Subsidiary, and any assets related thereto,
including, books, records, and supporting obligations, contracts and other
rights relating thereto which are customarily transferred or in respect of
which security interests are customarily granted in connection with asset
securitization transactions involving Receivables.


 


“Receivables” means accounts, chattel paper,
instruments, payment intangibles or general intangibles, in each case as
defined in the Uniform Commercial Code as in effect on the date of this
Indenture and all security interests or liens and rights in property subject
thereto.


 


“Receivables Purchase Agreement” shall mean
the Amended and Restated Receivables Purchase Agreement, dated May 31, 2002, as
amended, restated, refinanced, supplemented or otherwise modified or replaced,
among AFC Funding Corporation, as seller, Automotive Finance Corporation, as
servicer, Fairway Finance Corporation and such other entities as may become
purchasers, BMO Nesbitt Burns Corp., as initial agent, and XL Capital Assurance
Inc., as insurer.


 


“redeem” means to redeem, repurchase,
purchase, defease, retire, discharge or otherwise acquire or retire for value;
and “redemption” shall have a
correlative meaning; provided that this definition shall not apply for purposes
of Section 3.07 hereof.


 


“refinance” means to refinance, repay,
prepay, replace, renew or refund.


 


“Refinancing Indebtedness” means
Indebtedness of the Company or a Restricted Subsidiary issued in exchange for,
or the proceeds of which are used, within 365 days of such issuance or receipt
of such proceeds, to redeem or refinance in whole or in part, any Indebtedness
of the Company or any Restricted Subsidiary (the “Refinanced Indebtedness”); provided
that:


 


(1)                                  the principal amount (or accreted value, in
the case of Indebtedness issued at a discount) of the Refinancing Indebtedness
does not exceed the principal amount (or accreted value, as the case may be) of
the Refinanced Indebtedness plus the amount of accrued and unpaid interest on
the Refinanced Indebtedness, any premium paid to the holders of the Refinanced
Indebtedness and reasonable expenses incurred in connection with the incurrence
of the Refinancing Indebtedness;


 


(2)                                  the obligor of the Refinancing Indebtedness
does not include any Person (other than the Company, AFC or any Guarantor) that
is not an obligor of the Refinanced Indebtedness;


 


(3)                                  if the Refinanced Indebtedness was
subordinated in right of payment to the Notes or the Note Guarantees, as the
case may be, then such Refinancing Indebtedness, by its terms, is subordinate
in right of payment to the Notes or the Note Guarantees, as the case may be, at
least to the same extent as the Refinanced Indebtedness, and if the Refinanced
Indebtedness was pari passu with
the Notes or the Note Guarantees, as the case may be, then the Refinancing
Indebtedness ranks pari passu
with, or is subordinated in right of payment to, the Notes or the Note
Guarantees, as the case may be;


 


(4)                                  the Refinancing Indebtedness has a final
stated maturity either (a) no earlier than the Refinanced Indebtedness being
repaid or amended or (b) after the maturity date of the Notes; and


 


(5)                                  the portion, if any, of the Refinancing
Indebtedness that is scheduled to mature on or prior to the maturity date of
the Notes has a Weighted Average Life to Maturity at the time such Refinancing
Indebtedness is incurred that is equal to or greater than the Weighted Average
Life to Maturity


 


22

















 


of
the portion of the Refinanced Indebtedness being repaid that is scheduled to
mature on or prior to the maturity date of the Notes.


 


“Representative” means any agent or
representative in respect of any Designated Senior Debt; provided that if, and for so long as, any
Designated Senior Debt lacks such representative, then the Representative for
such Designated Senior Debt shall at all times constitute the holders of a
majority in outstanding principal amount of such Designated Senior Debt.


 


“Responsible Officer,” when used with
respect to the Trustee, means any officer within the Corporate Trust
Administration of the Trustee (or any successor group of the Trustee) or any
other officer of the Trustee customarily performing functions similar to those
performed by any of the above designated officers and also means, with respect
to a particular corporate trust matter, any other officer to whom such matter
is referred because of his knowledge of and familiarity with the particular
subject.


 


 “Restricted
Payment” means any of the following:


 


(1)                                  the declaration or payment of any dividend or
any other distribution on Equity Interests of the Company or any Restricted Subsidiary
or any payment made to the direct or indirect holders (in their capacities as
such) of Equity Interests of the Company or any Restricted Subsidiary,
including, without limitation, any payment in connection with any merger or
consolidation involving the Company but excluding (a) dividends or
distributions payable solely in Qualified Equity Interests or through accretion
or accumulation of such dividends on such Equity Interests and (b) in the case
of Restricted Subsidiaries, dividends or distributions payable to the Company
or to a Restricted Subsidiary and pro
rata dividends or distributions
payable to minority stockholders of any Restricted Subsidiary;


 


(2)                                  the redemption of any Equity Interests of the
Company or any Restricted Subsidiary, including, without limitation, any
payment in connection with any merger or consolidation involving the Company
but excluding any such Equity Interests held by the Company or any Restricted
Subsidiary;


 


(3)                                  any Investment other than a Permitted
Investment; or


 


(4)                                  any redemption prior to the scheduled
maturity or prior to any scheduled repayment of principal or sinking fund
payment, as the case may be, in respect of Subordinated Indebtedness.


 


“Restricted Subsidiary” means any Subsidiary
of the Company other than an Unrestricted Subsidiary.


 


“S&P” means Standard & Poor’s
Ratings Services, a division of the McGraw-Hill Companies, Inc., and its
successors.


 


“Sale and Leaseback Transactions” means with
respect to any Person an arrangement with any bank, insurance company or other
lender or investor or to which such lender or investor is a party, providing
for the leasing by such Person of any asset of such Person which has been or is
being sold or transferred by such Person to such lender or investor or to any
Person to whom funds have been or are to be advanced by such lender or investor
on the security of such asset.


 


“SEC” means the U.S. Securities and Exchange
Commission.


 


“Secretary’s Certificate” means a
certificate signed by the Secretary of the Company.


 


23

















 


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


 


“Securitization Entity” means any
Unrestricted Subsidiary of the Company or any other corporation, trust or
entity that is exclusively engaged in Qualified Securitization Transactions and
activities relating directly thereto.


 


“Senior Debt” means the principal of,
premium, if any, and interest (including any interest accruing subsequent to
the filing of a petition of bankruptcy at the rate provided for in the
documentation with respect thereto, whether or not such interest is an allowed
claim under applicable law) on any Indebtedness of the Company, whether
outstanding on the Issue Date or thereafter created, incurred or assumed,
unless, in the case of any particular Indebtedness, the instrument creating or
evidencing the same or pursuant to which the same is outstanding expressly
provides that such Indebtedness shall not be senior in right of payment to the
Notes.


 


Without
limiting the generality of the foregoing, “Senior Debt” shall include the
principal of, premium, if any, interest (including any interest accruing
subsequent to the filing of a petition of bankruptcy at the rate provided for
in the documentation with respect thereto, whether or not such interest is an
allowed claim under applicable law) on, and all other amounts owing in respect
of:


 


(1)                                  all monetary obligations of every nature
under, or with respect to, the Credit Facilities, including, without
limitation, obligations to pay principal and interest, reimbursement
obligations under letters of credit, fees, expenses and indemnities (and
guarantees thereof); and


 


(2)                                  all Hedging Obligations in respect of the
Credit Facilities;


 


in
each case whether outstanding on the Issue Date or thereafter incurred.


 


Notwithstanding
the foregoing, “Senior Debt” shall not include:


 


(1)                                  any Indebtedness of the Company to any of its
Subsidiaries;


 


(2)                                  Indebtedness to, or guaranteed on behalf of,
any director, officer or employee of the Company or any of its Subsidiaries
(including, without limitation, amounts owed for compensation);


 


(3)                                  obligations to trade creditors and other
amounts incurred (but not under the Credit Facilities) in connection with
obtaining goods, materials or services;


 


(4)                                  Indebtedness represented by Disqualified
Equity Interests;


 


(5)                                  any liability for taxes owed or owing by the
Company;


 


(6)                                  that portion of any Indebtedness incurred in
violation of Section 4.09 hereof (but, as to any such obligation, no such
violation shall be deemed to exist for purposes of this clause (6) if the
holder(s) of such obligation or their representative shall have received an
Officers’ Certificate of the Company to the effect that the incurrence of such
Indebtedness does not (or, in the case of revolving credit indebtedness, that
the incurrence of the entire committed amount thereof at the date on which the
initial borrowing thereunder is made would not) violate such provisions of this
Indenture);


 


(7)                                  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; and


 


24

















 


(8)                                  any Indebtedness which is, by its express
terms, subordinated in right of payment to any other Indebtedness of the
Company.


 


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


 


“Spin-Off” means the distribution by ALLETE,
Inc. to its shareholders of all or any portion of its shares of the common
stock of the Company.


 


“Spin-Off Agreements” means the
Administrative and General Services Agreement dated as of April 4, 1996 between
the Company and ALLETE Inc., the Master Separation Agreement dated as of
        , 2004 between the Company and
ALLETE, Inc., the Tax Sharing Agreement dated as of
        , 2004 between the Company and
ALLETE, Inc., the Employee Matters Agreement dated
        , 2004 between the Company and
ALLETE, Inc. and the Joint Aircraft Agreement.


 


“Subordinated Indebtedness” means
Indebtedness of the Company or any Guarantor that is expressly subordinated in
right of payment to the Notes or the Note Guarantees, respectively.


 


“Subsidiary” means, with respect to any
Person:


 


(1)                                  any corporation, limited liability company,
association or other business entity of which more than 50% of the total voting
power of the Equity Interests entitled (without regard to the occurrence of any
contingency) to vote in the election of the Board of Directors thereof are at
the time owned or controlled, directly or indirectly, by such Person or one or
more of the other Subsidiaries of such Person (or a combination thereof); and


 


(2)                                  any partnership (a) the sole general partner
or the managing general partner of which is such Person or a Subsidiary of such
Person or (b) the only general partners of which are such Person or of one or
more Subsidiaries of such Person (or any combination thereof).


 


Unless
otherwise specified, “Subsidiary” refers to a Subsidiary of the Company.


 


“Transaction Date” has the meaning set forth in the definition of Consolidated Interest
Coverage Ratio.


 


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


 


“Trust Indenture Act” means the Trust
Indenture Act of 1939, as amended.


 


“Unrestricted Subsidiary” means (1) any
Subsidiary that at the time of determination shall be designated an
Unrestricted Subsidiary by the Board of Directors of the Company in accordance
with Section 4.13 hereof and (2) any Subsidiary of an Unrestricted
Subsidiary.


 


“U.S. Government Obligations” means direct
non-callable obligations of, or obligations guaranteed by, the United States of
America for the payment of which guarantee or obligations the full faith and
credit of the United States is pledged.


 


25

















 


“Voting Stock” with respect to any Person,
means any class of Equity Interests of such Person entitling the holders
thereof (whether at all times or only so long as no senior class of stock or
other relevant equity interest has voting power by reason of any contingency)
to vote in the election of members of the Board of Directors of such Person.


 


“Weighted Average Life to Maturity” when
applied to any Indebtedness at any date, means the number of years obtained by
dividing (1) the sum of the products obtained by multiplying (a) the amount of
each then remaining installment, sinking fund, serial maturity or other
required payment of principal, including payment at final maturity, in respect
thereof by (b) the number of years (calculated to the nearest one-twelfth) that
will elapse between such date and the making of such payment by (2) the then
outstanding principal amount of such Indebtedness.


 


“Wholly-Owned Restricted Subsidiary” means a
Restricted Subsidiary of which 100% of the Equity Interests (except for
directors’ qualifying shares or certain minority interests owned by other
Persons solely due to local law requirements that there be more than one
stockholder, but which interest is not in excess of what is required for such
purpose) are owned directly by the Company or through one or more Wholly-Owned
Restricted Subsidiaries.


 


1.02                           Other
Definitions.


 


	
  Term

  	
   

  	
  Defined in

  Section

  
	
   

  	
   

  	
   

  
	
  “acceleration declaration”

  	
   

  	
  6.02

  
	
  “Affiliate Transaction”

  	
   

  	
  4.11

  
	
  “Authentication Order”

  	
   

  	
  2.10

  
	
  “Change of Control Offer”

  	
   

  	
  4.15

  
	
  “Change of Control Purchase Price”

  	
   

  	
  4.15

  
	
  “Covenant Defeasance”

  	
   

  	
  8.03

  
	
  “Coverage Ratio Exception”

  	
   

  	
  4.09

  
	
  “Designation”

  	
   

  	
  4.13

  
	
  “Designation Amount”

  	
   

  	
  4.13

  
	
  “DTC”

  	
   

  	
  2.03

  
	
  “Event of Default”

  	
   

  	
  6.01

  
	
  “Excess Proceeds”

  	
   

  	
  4.10

  
	
  “Legal Defeasance”

  	
   

  	
  8.02

  
	
  “Net Proceeds Deficiency”

  	
   

  	
  4.10

  
	
  “Net Proceeds Offer”

  	
   

  	
  4.10

  
	
  “Offered Price”

  	
   

  	
  4.10

  
	
  “Pari Passu Indebtedness Price”

  	
   

  	
  4.10

  
	
  “Paying Agent”

  	
   

  	
  2.03

  
	
  “Payment Amount”

  	
   

  	
  4.10

  
	
  “Payment Blockage Notice”

  	
   

  	
  10.03

  
	
  “Permitted Indebtedness”

  	
   

  	
  4.09

  
	
  “Redesignation”

  	
   

  	
  4.13

  
	
  “Registrar”

  	
   

  	
  2.03

  
	
  “Restricted Payments Basket”

  	
   

  	
  4.07

  
	
  “Successor”

  	
   

  	
  5.01

  
	
  “Supplemental Indenture”

  	
   

  	
  11.01

  



 


26

















 


1.03                           Incorporation by Reference of Trust Indenture Act.


 


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


 


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


 


“indenture securities” means the Notes;


 


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


 


“indenture to be qualified” means this
Indenture;


 


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


 


“obligor” on the Notes and the Note
Guarantees means the Company and the Guarantors, respectively, and any
successor obligor upon the Notes and the Note Guarantees, respectively.


 


All
other terms used in this Indenture that are defined by the TIA, defined by TIA
reference to another statute or defined by SEC rule under the TIA have the
meanings so assigned to them.


 


1.04                           Rules of Construction.


 


Unless
the context otherwise requires:


 


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


 


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


 


(3)                                  “or” is not exclusive;


 


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


 


(5)                                  provisions apply to successive events and
transactions; and


 


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


 


ARTICLE II


 


THE NOTES


 


2.01                           Form and
Dating.


 


(1)                                  General.  The
Notes and the Trustee’s certificate of authentication shall be substantially in
the form of Exhibit A hereto. 
The Notes may have notations, legends or endorsements required


 


27

















 


by
law, stock exchange rule or usage.  Each
Note shall be dated the date of its authentication.  The Notes shall be in denominations of $1,000 and integral multiples
thereof.


 


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


 


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


 


2.02                           Execution and Authentication.


 


An
Officer shall sign the Notes for the Company by manual or facsimile signature.


 


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


 


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


 


The
Trustee shall authenticate (i) Initial Notes for original issue in the
aggregate principal amount not to exceed $125,000,000, or (ii) Additional Notes.  Each such written order shall specify the
amount of Notes to be authenticated and the date on which the Notes are to be
authenticated, whether the Notes are to be Initial Notes or Additional Notes
and whether the Notes are to be issued as certificated Notes or Global Notes or
such other information as the Trustee may reasonably request.  In addition, with respect to authentication
pursuant to clause (ii) of the first sentence of this paragraph, the first such
written order from the Company shall be accompanied by an Opinion of Counsel of
the Company in a form reasonably satisfactory to the Trustee.


 


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


 


2.03                           Registrar and Paying Agent.


 


The
Company shall maintain an office or agency where Notes may be presented for
registration of transfer or for exchange (“Registrar”)
and an office or agency where Notes may be presented for payment (“Paying Agent”).  The Registrar shall keep a register of the Notes and of their
transfer and exchange.  The


 


28

















 


Company may appoint one or more co-registrars and one or more
additional paying agents.  The term
“Registrar” includes any co-registrar and the term “Paying Agent” includes any
additional paying agent.  The Company
may change any Paying Agent or Registrar without notice to any Holder.  The Company shall notify the Trustee in
writing of the name and address of any Agent not a party to this Indenture.  If the Company fails to appoint or maintain
another entity as Registrar or Paying Agent, the Trustee shall act as
such.  The Company or any of its
Subsidiaries may act as Paying Agent or Registrar.


 


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


 


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


 


2.04                           Paying Agent to Hold Money in Trust.


 


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


 


2.05                           Holder
Lists.


 


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


 


2.06                           Transfer and Exchange.


 


A
Holder will be able to register the transfer of or exchange Notes only in
accordance with the provisions of this Indenture.  The Registrar may require a Holder, among other things, to
furnish appropriate endorsements and transfer documents and to pay any taxes
and fees required by law or permitted by this Indenture.  Without the prior consent of the Company,
the Registrar is not required (1) to register the transfer of or exchange any
Note selected for redemption, (2) to register the transfer of or exchange any
Note for a period of 15 days before a selection of Notes to be redeemed or (3)
to register the transfer or exchange of a Note between a record date and the
next succeeding interest payment date.


 


(1)                                  The Notes will be issued in registered form
and the registered Holder will be treated as the owner of such Note for all
purposes..


 


29

















 


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


 


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


 


“THIS
GLOBAL NOTE IS HELD BY THE DEPOSITARY (AS DEFINED IN THIS INDENTURE GOVERNING
THIS NOTE) OR ITS NOMINEE IN CUSTODY FOR THE BENEFIT OF THE BENEFICIAL OWNERS
HEREOF, AND IS NOT TRANSFERABLE TO ANY PERSON UNDER ANY CIRCUMSTANCES EXCEPT
THAT (I) THE TRUSTEE MAY MAKE SUCH NOTATIONS HEREON AS MAY BE REQUIRED PURSUANT
TO SECTION 2.07 OF THIS INDENTURE, (II) THIS GLOBAL NOTE MAY BE EXCHANGED
IN WHOLE BUT NOT IN PART PURSUANT TO SECTION 2.06 OF THIS INDENTURE, (III)
THIS GLOBAL NOTE MAY BE DELIVERED TO THE TRUSTEE FOR CANCELLATION PURSUANT TO
SECTION 2.11 OF THIS INDENTURE AND (IV) THIS GLOBAL NOTE MAY BE
TRANSFERRED TO A SUCCESSOR DEPOSITARY WITH THE PRIOR WRITTEN CONSENT OF THE
COMPANY.”


 


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


 


(4)                                  General Provisions Relating
to Transfers and Exchanges.


 


(a)                                  To permit registrations of transfers and
exchanges, the Company shall execute and the Trustee shall authenticate Global
Notes and Definitive Notes upon the Company’s order or at the Registrar’s
request.


 


(b)                                 No service charge shall be made to a holder
of a beneficial interest in a Global Note or to a Holder of a Definitive Note
for any registration of transfer or exchange, but the Company may require
payment of a sum sufficient to cover any transfer tax or similar governmental
charge payable in connection therewith (other than any such transfer taxes or
similar governmental charge payable upon exchange or transfer pursuant to
Sections 2.10, 3.06, 4.10, 4.15 and 9.05 hereof).


 


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


 


(d)                                 All Global Notes and Definitive Notes issued
upon any registration of transfer or exchange of Global Notes or Definitive
Notes shall be the valid obligations of the


 


30

















 


Company,
evidencing the same debt, and entitled to the same benefits under this
Indenture, as the Global Notes or Definitive Notes surrendered upon such
registration of transfer or exchange.


 


(e)                                  The Company shall not be required (A) to
issue, to register the transfer of or to exchange any Notes during a period
beginning at the opening of business 15 days before the day of any selection of
Notes for redemption under Section 3.02 hereof and ending at the close of
business on the day of selection, (B) to register the transfer of or to
exchange any Note so selected for redemption in whole or in part, except the
unredeemed portion of any Note being redeemed in part or (C) to register the
transfer of or to exchange a Note between a record date and the next succeeding
Interest Payment Date.


 


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


 


(g)                                 The Trustee shall authenticate Global Notes
and Definitive Notes in accordance with the provisions of Section 2.02
hereof.


 


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


 


(i)                                     Each Holder agrees to indemnify the Company
and the Trustee against any liability that may result from the transfer, exchange
or assignment by such Holder of such Holder’s Note in violation of any
provision of this Indenture and/or applicable Unites States Federal or state
securities law.


 


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


 


2.07                           Replacement
Notes.


 


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


 


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


 


31

















 


2.08                           Outstanding
Notes.


 


The
Notes outstanding at any time are all the Notes authenticated by the Trustee
except for those canceled by it, those delivered to it for cancellation, those
reductions in the interest in a Global Note effected by the Trustee in
accordance with the provisions hereof, and those described in this
Section as not outstanding.  Except
as set forth in Section 2.09 hereof, a Note does not cease to be
outstanding because the Company or an Affiliate of the Company holds the Note;
however, Notes held by the Company or a Subsidiary of the Company shall not be
deemed to be outstanding for purposes of Section 3.07(2) hereof.


 


If
a Note is replaced pursuant to Section 2.07 hereof, it ceases to be
outstanding unless the Trustee receives proof satisfactory to it that the replaced
Note is held by a bona fide purchaser.


 


If
the principal amount of any Note is considered paid under Section 4.01
hereof, it ceases to be outstanding and interest on it ceases to accrue.


 


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


 


2.09                           Treasury
Notes.


 


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


 


2.10                           Temporary
Notes.


 


Until
certificates representing Notes are ready for delivery, the Company may prepare
and the Trustee, upon a written order of the Company in the form of an
Officers’ Certificate of the Company (an “Authentication
Order”) receipt of an Authentication Order, shall authenticate
temporary Notes.  Temporary Notes shall
be substantially in the form of certificated Notes but may have variations that
the Company considers appropriate for temporary Notes and as shall be
reasonably acceptable to the Trustee. 
Without unreasonable delay, the Company shall prepare and the Trustee
shall authenticate definitive Notes in exchange for temporary Notes.


 


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


 


2.11                           Cancellation.


 


The
Company at any time may deliver Notes to the Trustee for cancellation.  The Registrar and Paying Agent shall forward
to the Trustee any Notes surrendered to them for registration of transfer,
exchange or payment.  The Trustee and no
one else shall cancel all Notes surrendered for registration of transfer,
exchange, payment, replacement or cancellation and shall dispose of canceled
Notes in accordance with its procedures for the disposition of canceled
securities in effect as of the date of such disposition (subject to the record
retention requirement of the Exchange Act). 
Certification of the disposition of all canceled Notes shall be
delivered to the Company.  The Company
may not issue new Notes to replace Notes that it has paid or that have been
delivered to the Trustee for cancellation.


 


32

















 


2.12                           Defaulted Interest.


 


If
the Company defaults in a payment of interest on the Notes, it shall pay the
defaulted interest in any lawful manner plus, to the extent lawful, interest
payable on the defaulted interest, to the Persons who are Holders on a
subsequent special record date, in each case at the rate provided in the Notes
and in Section 4.01 hereof.  The
Company shall notify the Trustee in writing of the amount of defaulted interest
proposed to be paid on each Note and the date of the proposed payment.  The Company shall fix or cause to be fixed
each such special record date and payment date, provided that no such special record date shall be less than
10 days prior to the related payment date for such defaulted interest.  At least 15 days before the special record
date, the Company (or, upon the written request of the Company, the Trustee in
the name and at the expense of the Company) shall mail or cause to be mailed to
Holders a notice that states the special record date, the related payment date
and the amount of such interest to be paid.


 


2.13                           CUSIP
Numbers.


 


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


 


ARTICLE III


 


REDEMPTION AND
PREPAYMENT


 


3.01                           Notices to
Trustee.


 


If
the Company elects to redeem Notes pursuant to the optional redemption
provisions of Section 3.07 hereof, it shall furnish to the Trustee, at
least 30 days but not more than 60 days before a redemption date, an Officers’
Certificate setting forth (i) the clause of this Indenture pursuant to which the
redemption shall occur, (ii) the redemption date, (iii) the principal amount of
Notes to be redeemed and (iv) the redemption price.


 


3.02                           Selection of Notes To Be Redeemed.


 


If
less than all of the Notes are to be redeemed or purchased in an offer to
purchase at any time, the Trustee shall select the Notes to be redeemed or
purchased among the Holders of the Notes in compliance with the requirements of
the principal national securities exchange, if any, on which the Notes are
listed or, if the Notes are not so listed, on a pro rata basis, by lot or in accordance with any other
method the Trustee considers fair and appropriate; provided, however,
that no Notes of a principal amount of $1,000 or less shall be redeemed in
part.  In addition, if a partial
redemption is made pursuant to Section 3.07(3) hereof, selection of the
Notes or portions thereof for redemption shall be made by the Trustee only on a
pro rata basis or on as nearly a pro rata basis as is practicable (subject
to the procedures of DTC), unless that method is otherwise prohibited.


 


The
Trustee shall promptly notify the Company in writing of the Notes selected for
redemption and, in the case of any Note selected for partial redemption, the
principal amount thereof to be redeemed. 
Notes and portions of Notes selected shall be in amounts of $1,000 or
whole multiples of $1,000; except that if all of the Notes of a Holder are to
be redeemed, the entire outstanding amount of Notes held by such Holder, even
if not a


 


33

















 


multiple of $1,000, shall be redeemed. 
Except as provided in the preceding sentence, provisions of this
Indenture that apply to Notes called for redemption also apply to portions of
Notes called for redemption.


 


3.03                           Notice of Redemption.


 


At
least 30 days but not more than 60 days before a redemption date, the Company
shall mail or cause to be mailed, by first class mail, a notice of redemption
to each Holder whose Notes are to be redeemed at its registered address; provided, however,
that notices of redemption may be mailed more than 60 days prior to a
redemption date if such notice is issued in connection with a satisfaction and
discharge of this Indenture pursuant to Section 12.01 hereof.


 


The
notice shall identify the Notes (including the CUSIP number, if any) to be
redeemed and shall state:


 


(1)                                  the redemption date;


 


(2)                                  the redemption price;


 


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


 


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


 


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


 


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


 


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


 


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


 


At
the Company’s request, the Trustee shall give the notice of redemption in the
Company’s name and at its expense; provided
that the Company shall have delivered to the Trustee, at least 15 days prior to
the date of the mailing of such notice, an Officers’ Certificate requesting
that the Trustee give such notice and setting forth the information to be
stated in such notice as provided in the preceding paragraph.


 


3.04                           Effect of Notice of Redemption.


 


Once
notice of redemption is mailed in accordance with Section 3.03 hereof,
Notes called for redemption become irrevocably due and payable on the
redemption date at the redemption price. 
A notice of redemption may not be conditional.


 


34

















 


3.05                           Deposit of Redemption Price.


 


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


 


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


 


3.06                           Notes Redeemed in Part.


 


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


 


3.07                           Optional Redemption.


 


(1)                                  Except as set forth below, the Notes may not
be redeemed prior to
                ,
2008.  At any time or from time to time
on or after
               ,
2008, the Company, at its option, may redeem the Notes, in whole or in part, at
the redemption prices (expressed as percentages of principal amount) set forth
below, together with accrued and unpaid interest thereon, if any, to the
redemption date, if redeemed during the 12-month period beginning
                
of the years indicated:


 


	
  Year

  	
   

  	
  Percentage

  	
   

  
	
  2008

  	
   

  	
            
  

  	
  %

  
	
  2009

  	
   

  	
            
  

  	
  %

  
	
  2010 and thereafter

  	
   

  	
  100.000 

  	
  %

  



 


(2)                                  At any time prior to
                ,
2008, the Company, at its option, may redeem the Notes at a redemption price
equal to the sum of:


 


(a)                                  the principal amount thereof, plus


 


(b)                                 accrued and unpaid interest, if any, to the
redemption date, plus


 


(c)                                  the Applicable Premium at the redemption
date.


 


(3)                                  At any time prior to
              ,
2007, the Company may redeem at its option on any one or more occasions up to
35% of the aggregate principal amount of the Notes issued under this Indenture
with the net cash proceeds of one or more Qualified Equity Offerings at a
redemption price equal to     % of the principal amount of
the Notes to be redeemed, plus accrued and unpaid interest


 


35

















 


thereon,
if any, to but excluding the date of redemption; provided that (a) at least 65% of the aggregate principal
amount of Notes issued under this Indenture remains outstanding immediately
after the occurrence of such redemption and (b) the redemption occurs within 90
days of the date of the closing of any such Qualified Equity Offering.


 


3.08                           Mandatory Redemption.


 


The
Company shall not be required to make mandatory redemption or sinking fund
payments with respect to the Notes.


 


ARTICLE IV


 


COVENANTS


 


4.01                           Payment of
Notes.


 


The
Company shall pay or cause to be paid the principal of, premium, if any, and
interest on the Notes on the dates and in the manner provided in the
Notes.  Principal, premium, if any, and
interest shall be considered paid on the date due if the Paying Agent, if other
than the Company or a Subsidiary thereof, holds as of 12:00 noon Eastern Time
on the due date money deposited by the Company in immediately available funds
and designated for and sufficient to pay all principal, premium, if any, and
interest then due.


 


The
Company shall pay interest (including post-petition interest in any proceeding
under any Bankruptcy Law) on overdue principal at the rate equal to 1% per
annum in excess of the then applicable interest rate on the Notes to the extent
lawful; it shall pay interest (including post-petition interest in any
proceeding under any Bankruptcy Law) on overdue installments of interest
(without regard to any applicable grace period) at the same rate to the extent
lawful.


 


4.02                           Maintenance of Office or Agency.


 


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


 


The
Company may also from time to time designate one or more other offices or
agencies where the Notes may be presented or surrendered for any or all such
purposes and may from time to time rescind such designations; provided that no such designation or
rescission shall in any manner relieve the Company of its obligation to
maintain an office or agency in the Borough of Manhattan, The City of New York
for such purposes.  The Company shall
give prompt written notice to the Trustee of any such designation or rescission
and of any change in the location of any such other office or agency.


 


The
Company hereby designates the Corporate Trust Office of the Trustee as one such
office or agency of the Company in accordance with Section 2.03.


 


36

















 


4.03                           Reports.


 


Whether
or not required by the SEC, so long as any Notes are outstanding, the Company
shall furnish to the Holders of Notes, or file electronically with the SEC
through the SEC’s Electronic Data Gathering, Analysis and Retrieval System (or
any successor system), within the time periods applicable to the Company under
Section 13(a) or 15(d) of the Exchange Act:


 


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


 


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


 


In
addition, whether or not required by the SEC, the Company, if permitted by the
SEC, shall file a copy of all of the information and reports referred to in
clauses (1) and (2) above with the SEC for public availability within the time
periods specified in the SEC’s rules and regulations (unless the SEC will not
accept the filing) and make the information available to securities analysts
and prospective investors upon request.


 


4.04                           Changes in Covenants when Notes Rated Investment
Grade.


 


If
on any date following the date of this Indenture:


 


(1)                                  the Notes are assigned an Investment Grade
Rating by both Moody’s and S&P; and


 


(2)                                  no Default or Event of Default shall have
occurred and be continuing,


 


then,
beginning on that day, the following covenants will be terminated:


 


(1)                                  Section 4.07 hereof;


 


(2)                                  Section 4.08 hereof;


 


(3)                                  Section 4.09 hereof;


 


(4)                                  Section 4.10 hereof;


 


(5)                                  Section 4.11 hereof;


 


(6)                                  Section 4.13 hereof;


 


(7)                                  Section 4.14 hereof;


 


(8)                                  Section 4.15 hereof;


 


(9)                                  Section 4.16 hereof;


 


(10)                            clause (3) of Section 5.01 hereof; and


 


37

















 


(11)                            Section 6.01(3)(B) hereof;


 


provided that, in the case of clause (6) above, no additional Restricted
Subsidiaries may be designated as Unrestricted Subsidiaries after such
termination is effective.


 


4.05                           Taxes.


 


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


 


4.06                           Limitations on Layering Indebtedness.


 


The
Company shall not, and shall not permit any Guarantor to, directly or
indirectly, incur or suffer to exist any Indebtedness that is or purports to be
by its terms (or by the terms of any agreement governing such Indebtedness)
senior in right of payment to the Notes or the Note Guarantee of such
Restricted Subsidiary and subordinated in right of payment to any other Indebtedness
of the Company or of such Restricted Subsidiary, as the case may be.


 


For
purposes of this Section 4.06, no Indebtedness will be deemed to be
subordinated in right of payment to any other Indebtedness of the Company or
any Restricted Subsidiary solely by virtue of being unsecured or secured on a
first or junior priority basis or by virtue of the fact that the holders of
such Indebtedness have entered into intercreditor agreements or other
arrangements giving one or more of such holders priority over the other holders
in the collateral held by them.


 


4.07                           Limitations on Restricted Payments.


 


The
Company shall not, and shall not permit any Restricted Subsidiary to, directly
or indirectly, make any Restricted Payment if at the time of such Restricted
Payment:


 


(1)                                  a Default shall have occurred and be
continuing or shall occur as a consequence thereof;


 


(2)                                  the Company cannot incur $1.00 of additional
Indebtedness pursuant to the Coverage Ratio Exception; or


 


(3)                                  the amount of such Restricted Payment, when
added to the aggregate amount of all other Restricted Payments made after the
Issue Date (other than Restricted Payments made pursuant to clause (2), (3),
(4), (5), (6), (9) or (10) of the next paragraph), exceeds the sum (the “Restricted Payments Basket”) of (without
duplication):


 


(a)                                  50% of Consolidated Net Income for the period
(taken as one accounting period) commencing on the first day of the fiscal
quarter commencing immediately after the Issue Date and including the last day
of the fiscal quarter ended immediately prior to the date of such calculation
for which consolidated financial statements are available (or, if such
Consolidated Net Income shall be a deficit, minus 100% of such aggregate
deficit), plus


 


(b)                                 100% of the aggregate net cash proceeds
received by the Company either (x) as contributions to the common equity of the
Company after the Issue Date or (y) from the


 


38

















 


issuance
and sale of Qualified Equity Interests after the Issue Date, other than (A) any
such proceeds which are used to redeem Notes in accordance with
Section 3.07(3) hereof or (B) any such proceeds or assets received from a
Subsidiary of the Company, plus


 


(c)                                  the aggregate amount by which Indebtedness
(other than any Subordinated Indebtedness) incurred by the Company or any
Restricted Subsidiary subsequent to the Issue Date is reduced on the Company’s
balance sheet upon conversion or exchange (other than by a Subsidiary of the
Company) into Qualified Equity Interests (less the amount of any cash, or the
fair value of assets, distributed by the Company or any Restricted Subsidiary
upon such conversion or exchange), plus


 


(d)                                 in the case of the disposition or repayment
of or return on any Investment that was treated as a Restricted Payment made
after the Issue Date, an amount (to the extent not included in the computation
of Consolidated Net Income) equal to the lesser of (i) 100% of the aggregate
amount received by the Company or any Restricted Subsidiary in cash or other property
(valued at the Fair Market Value thereof) as the return of capital with respect
to such Investment and (ii) the amount of such Investment that was treated as a
Restricted Payment, in either case, less the cost of the disposition of such
Investment and net of taxes, plus


 


(e)                                  upon a Redesignation of an Unrestricted
Subsidiary as a Restricted Subsidiary, the lesser of (i) the Fair Market Value
of the Company’s proportionate interest in such Subsidiary immediately
following such Redesignation, and (ii) the aggregate amount of the Company’s
Investments in such Subsidiary to the extent such Investments reduced the
Restricted Payments Basket and were not previously repaid or otherwise reduced.


 


The
foregoing provisions will not prohibit:


 


(1)                                  the payment by the Company or any Restricted
Subsidiary of any dividend within 60 days after the date of declaration
thereof, if on the date of declaration the payment would have complied with the
provisions of this Indenture;


 


(2)                                  the making of any Restricted Payment in
exchange for, or out of the proceeds of the substantially concurrent issuance
and sale of, Qualified Equity Interests or from the substantially concurrent
contribution of common equity capital to the Company;


 


(3)                                  the redemption, defeasance, repurchase or
other acquisition of Subordinated Indebtedness of the Company or any Restricted
Subsidiary (a) in exchange for, or out of the proceeds of the substantially
concurrent issuance and sale of, Qualified Equity Interests or (b) in exchange
for, or out of the proceeds of the substantially concurrent incurrence of,
Refinancing Indebtedness permitted to be incurred under Section 4.09
hereof and the other terms of this Indenture or (c) upon a change of control or
in connection with an asset sale to the extent required by the agreement
governing such Subordinated Indebtedness but only if the Company shall have
complied, to the extent required, with Section 4.10 and 4.15 hereof and
purchased, to the extent required, all Notes validly tendered pursuant to the
relevant offer prior to redeeming such Subordinated Indebtedness;


 


(4)                                  the repurchase, redemption or other
acquisition or retirement for value of Equity Interests of the Company or any
Restricted Subsidiary held by officers, directors, employees, consultants or former
officers, directors, employees or consultants (or their transferees, estates or
beneficiaries under their estates), upon their death, disability, retirement,
severance or termination of employment or service or pursuant to any equity
subscription agreement, stock option agreement, shareholders’ agreement


 


39

















 


or
similar agreement; provided that
the aggregate cash consideration paid for all such repurchases, redemptions or
other acquisitions or retirements for value shall not exceed $1.0 million
during any twelve-month period; provided
further that the Company may
carry forward and make in a subsequent twelve-month period, in addition to the
amounts permitted for such twelve-month period, the amount of such repurchases,
redemptions, or other acquisitions or retirements for value permitted to have
been made but not made in any preceding twelve-month period up to a maximum of
$5.0 million in any twelve-month period;


 


(5)                                  repurchases of Equity Interests deemed to
occur upon the exercise of stock options if the Equity Interests represent a
portion of the exercise price thereof;


 


(6)                                  payments occurring or deemed to have occurred
pursuant to the IPO Transactions, the Liability Management Transactions or the
Contribution Transactions, and payments to ALLETE, Inc. pursuant to the
Spin-Off Agreements;


 


(7)                                  the making of cash payments in lieu of the
issuance of fractional shares in an aggregate amount not to exceed $5.0 million
in the aggregate;


 


(8)                                  payments by the Company pursuant to the
Company’s guaranty of AFC’s customary servicing obligations in connection with
the Receivables Purchase Agreement;


 


(9)                                  the declaration and payment of dividends to
holders of common stock of the Company not to exceed $30.0 million in any
12-month period;


 


(10)                            the payment of any dividend (or, in the case
of any partnership or limited liability company, any similar distribution) by a
Restricted Subsidiary to the holders of its Equity Interests on a pro rata
basis; and


 


(11)                            additional Restricted Payments not to exceed
$20.0 million in the aggregate;


 


provided that (a) in the case of any Restricted Payment pursuant to clause (3),
(4), or (9) above, no Default shall have occurred and be continuing or occur as
a consequence thereof and (b) no issuance and sale of Qualified Equity
Interests are used to make a payment pursuant to clauses (2) or (3) above shall
increase the Restricted Payments Basket.


 


4.08                           Limitations on Dividend and Other Restrictions
Affecting Restricted Subsidiaries.


 


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


 


(a)                                  pay dividends or make any other distributions
on or in respect of its Equity Interests to the Company or any of its
Restricted Subsidiaries;


 


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


 


(c)                                  transfer any of its assets to the Company or
any other Restricted Subsidiary;


 


except
for:


 


40

















 


(1)                                  encumbrances or restrictions existing under
or by reason of applicable law, rule, regulation or order, approval, license,
permit or similar restriction;


 


(2)                                  encumbrances or restrictions existing under
this Indenture, the Notes and the Note Guarantees;


 


(3)                                  non-assignment provisions of any contract,
lease or license entered into in the ordinary course of business;


 


(4)                                  encumbrances or restrictions existing under
agreements (including, without limitation, the Credit Facilities and the
Receivables Purchase Agreement) existing on the date of this Indenture as in
effect on that date and any amendments, modifications, restatements, renewals,
increases, supplements, refundings, replacements or refinancings of those
agreements, whether or not such encumbrances or restrictions are in effect on
the date of this Indenture but provided
that such encumbrances and restrictions are not materially more restrictive in
the aggregate (as determined in good faith by the Board of Directors of the
Company) than those in effect on the date of this Indenture;


 


(5)                                  restrictions relating to any Lien permitted
under this Indenture imposed by the holder of such Lien;


 


(6)                                  restrictions imposed under any agreement to
sell assets permitted under this Indenture to any Person pending the closing of
such sale;


 


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


 


(8)                                  any other agreement governing Indebtedness
entered into after the Issue Date that contains encumbrances and restrictions
that are not materially more restrictive with respect to any Restricted
Subsidiary than those in effect on the Issue Date with respect to that
Restricted Subsidiary pursuant to agreements in effect on the Issue Date;


 


(9)                                  customary provisions in partnership
agreements, limited liability company organizational governance documents,
joint venture agreements and other similar agreements entered into in the
ordinary course of business that restrict the transfer of ownership interests
or the disposition of assets or property in such partnership, limited liability
company, joint venture or similar Person;


 


(10)                            Purchase Money Indebtedness incurred in the
ordinary course of business in compliance with Section 4.09 hereof that
impose restrictions of the nature described in clause (c) above on the assets
acquired;


 


(11)                            restrictions on cash or other deposits or net
worth imposed by suppliers or landlords under contracts entered into in the
ordinary course of business;


 


(12)                            encumbrances or restrictions encumbering or
restricting Foreign Subsidiaries;


 


(13)                            encumbrances or restrictions on property
existing at the time the property was acquired by the Company or a Restricted
Subsidiary; and


 


41

















 


(14)                            any encumbrances or restrictions imposed by
any amendments or refinancings of the contracts, instruments or obligations
referred to in clauses (1) through (13) above; provided
that such amendments or refinancings are, in the good faith judgment of the
Company’s Board of Directors, no more materially restrictive with respect to
such encumbrances and restrictions than those prior to such amendment or
refinancing.


 


4.09                           Limitations on Additional Indebtedness.


 


The
Company shall not, and shall not permit any Restricted Subsidiary to, directly
or indirectly, incur any Indebtedness; provided
that (i) the Company, AFC or any Guarantor may incur additional Indebtedness
and any Restricted Subsidiary may incur Acquired Indebtedness, in each case,
if, after giving effect thereto, the Consolidated Interest Coverage Ratio would
be at least 2.00 to 1.00 (the “Coverage Ratio
Exception”) and (ii) any Restricted Subsidiary that is not a
Guarantor (other than AFC) may incur additional indebtedness if, after giving
effect thereto, the Consolidated Interest Coverage Ratio would be at least 4.00
to 1.00.


 


Notwithstanding
the above, each of the following shall be permitted (“Permitted Indebtedness”):


 


(1)                                  Indebtedness of the Company and any of the
Restricted Subsidiaries under the Credit Facilities in an aggregate amount at
any time outstanding not to exceed the sum of (x) $375.0 million less, the aggregate amount of Net
Available Proceeds required to be applied to repayments under the Credit
Facilities in accordance with Section 4.10 hereof plus (y) the greater of
(i) $150.0 million and (ii) the Borrowing Base;


 


(2)                                  Indebtedness of the Company or any Restricted
Subsidiary to the extent outstanding on the Issue Date (other than Indebtedness
referred to in clause (1) above, and after giving effect to the intended use of
proceeds of the Notes);


 


(3)                                  Indebtedness under Hedging Obligations for bona fide hedging purposes of the Company
or any Restricted Subsidiary; provided that
the notional principal amount of such Hedging Obligations at the time incurred
does not exceed the principal amount of the Indebtedness to which such Hedging
Obligations relate;


 


(4)                                  Indebtedness of the Company owed to a
Restricted Subsidiary and Indebtedness of any Restricted Subsidiary owed to the
Company or any other Restricted Subsidiary; provided,
however, that upon any such
Restricted Subsidiary ceasing to be a Restricted Subsidiary or such
Indebtedness being owed to any Person other than the Company or a Restricted
Subsidiary, the Company or such Restricted Subsidiary, as applicable, shall be
deemed to have incurred Indebtedness not permitted by this clause (4);


 


(5)                                  Indebtedness in respect of bid, performance
or surety bonds, replevin bonds or appeal bonds issued for the account of the
Company or any Restricted Subsidiary in the ordinary course of business,
including guarantees or obligations of the Company or any Restricted Subsidiary
with respect to letters of credit supporting such bid, performance or surety
obligations;


 


(6)                                  Purchase Money Indebtedness incurred by the
Company or any Restricted Subsidiary, and Refinancing Indebtedness thereof, in
an aggregate amount not to exceed at any time outstanding the greater of (x)
$20.0 million and (y) 4.0% of Consolidated Net Tangible Assets;


 


42

















 


(7)                                  Capitalized Lease Obligations of the Company
or any Restricted Subsidiary and Refinancing Indebtedness thereof, in an
aggregate amount not to exceed at any time outstanding the greater of (x) $30.0
million and (y) 4.0% of Consolidated Net Tangible Assets;


 


(8)                                  Indebtedness arising from the honoring by a
bank or other financial institution of a check, draft or similar instrument
inadvertently (except in the case of daylight overdrafts) drawn against
insufficient funds in the ordinary course of business; provided, however,
that such Indebtedness is extinguished within 15 Business Days of incurrence;


 


(9)                                  Indebtedness arising in connection with
endorsement of instruments for deposit in the ordinary course of business;


 


(10)                            Refinancing Indebtedness with respect to
Indebtedness incurred pursuant to the Coverage Ratio Exception or clause (2)
above or this clause (10);


 


(11)                            indemnification, adjustment of purchase
price, earn-out or similar obligations, in each case, incurred or assumed in
connection with the acquisition or disposition of any business, assets or
Equity Interests of the Company or any Restricted Subsidiary, other than
guarantees of Indebtedness incurred by any Person acquiring all or any portion
of such business, assets or Equity Interests for the purpose of financing or in
contemplation of any such acquisition;


 


(12)                            Indebtedness of one or more Foreign
Subsidiaries and guarantees thereof by the Company in aggregate amount not to
exceed $35.0 million;


 


(13)                            Indebtedness of the Company or any Restricted
Subsidiary pursuant to guarantees of AFC’s customary servicing obligations (but
not of collection) in connection with any Qualified Securitization Transaction;
and


 


(14)                            Indebtedness of the Company or any Restricted
Subsidiary in an aggregate amount not to exceed $15.0 million at any time
outstanding.


 


For
purposes of determining compliance with this Section 4.09, in the event
that an item of Indebtedness meets the criteria of more than one of the
categories of Permitted Indebtedness described in clauses (1) through (14) of
the preceding paragraph or is entitled to be incurred pursuant to the Coverage
Ratio Exception, the Company shall, in its sole discretion, classify such item
of Indebtedness and may divide and classify such Indebtedness in more than one
of the types of Indebtedness described, except that Indebtedness incurred under
the Credit Facilities on the Issue Date shall be deemed to have been incurred
under clause (1) of the preceding paragraph, and may later reclassify any item
of Indebtedness described in clauses (1) through (14) of the preceding
paragraph (provided that at the
time of reclassification it meets the criteria in such category or
categories).  Accrual of interest, accretion
or amortization of original issue discount and the payment of interest on any
Indebtedness in the form of additional Indebtedness with the same terms will
not be deemed to be an incurrence of Indebtedness for purposes of this
Section 4.09.  In addition, for
purposes of determining any particular amount of Indebtedness under this
Section 4.09, guarantees, Liens or letter of credit obligations supporting
Indebtedness otherwise included in the determination of such particular amount
shall not be included so long as incurred by a Person that could have incurred
such Indebtedness.


 


4.10                           Limitations on Asset Sales.


 


The
Company shall not, and shall not permit any Restricted Subsidiary to, directly
or indirectly, consummate any Asset Sale unless:


 


43

















 


(1)                                  the Company or such Restricted Subsidiary
receives consideration at the time of such Asset Sale at least equal to the
Fair Market Value of the assets included in such Asset Sale; and


 


(2)                                  at least 75% of the total consideration
received in such Asset Sale consists of cash or Cash Equivalents.


 


For
purposes of clause (2), the following shall be deemed to be cash:


 


(a)                                  the amount (without duplication) of any
Indebtedness (other than Subordinated Indebtedness) of the Company or such
Restricted Subsidiary that is expressly assumed by the transferee in such Asset
Sale and with respect to which the Company or such Restricted Subsidiary, as
the case may be, is unconditionally released by the holder of such Indebtedness;


 


(b)                                 the amount of any obligations received from
such transferee that are within 120 days converted by the Company or such
Restricted Subsidiary to cash or Cash Equivalents (to the extent of the cash or
Cash Equivalents actually so received);


 


(c)                                  (A) assets (other than securities) to be used
by the Company or any Restricted Subsidiary in the Permitted Business, (B)
Qualified Equity Interests in a Person that is a Restricted Subsidiary or in a
Person engaged in a Permitted Business that shall become a Restricted
Subsidiary immediately upon the consummation of such acquisition or (C) a
combination of (A) and (B); and


 


(d)                                 the Fair Market Value of (i) any assets
(other than securities) received by the Company or any Restricted Subsidiary to
be used by it in a Permitted Business, (ii) Equity Interests in a Person that
is a Restricted Subsidiary or in a Person engaged in a Permitted Business that
shall become a Restricted Subsidiary immediately upon the acquisition of such
Person by the Company or (iii) a combination of (i) and (ii).


 


If
at any time any non-cash consideration received by the Company or any
Restricted Subsidiary, as the case may be, pursuant to clause (b) above in
connection with any Asset Sale is repaid or converted into or sold or otherwise
disposed of for cash or cash equivalents (other than interest received with
respect to any such non-cash consideration), then the date of such repayment,
conversion or disposition shall be deemed to constitute the date of an Asset
Sale hereunder and the Net Available Proceeds thereof shall be applied in
accordance with this Section 4.10.


 


If
the Company or any Restricted Subsidiary engages in an Asset Sale, the Company
or such Restricted Subsidiary shall, no later than 365 days following the
consummation thereof, apply all or any of the Net Available Proceeds therefrom
to:


 


(1)                                  repay Senior Debt or Guarantor Senior Debt,
if any, and in the case of any such repayment under any revolving credit
facility, effect a permanent reduction in the availability under such revolving
credit facility;


 


(2)                                  (A) 
invest all or any part of the Net Available Proceeds thereof in the
purchase of assets (other than securities) or make a capital expenditure to be
used by the Company or any Restricted Subsidiary in the Permitted Business, (B)
acquire Qualified Equity Interests in a Person that is a Restricted Subsidiary
or in a Person engaged in a Permitted Business that shall become a Restricted
Subsidiary immediately upon the consummation of such acquisition or (C) a
combination of (A) and (B); and/or


 


44

















 


(3)                                  if the assets sold are assets of a Restricted
Subsidiary that is not a Guarantor, repay Indebtedness of such Restricted
Subsidiary,


 


or
enter into a binding commitment regarding clauses (1), (2) or (3) above; provided that such binding commitment
shall be treated as a permitted application of Net Available Proceeds from the
date of such commitment until and only until the earlier of (x) the date on
which such acquisition or expenditure is consummated, and (y) the 180th day
following the expiration of the aforementioned 365-day period.  If such acquisition or expenditure is not
consummated on or before such 180th day and the Company or such Restricted
Subsidiary shall not have applied such Net Available Proceeds pursuant to
clauses (1), (2) or (3) of this paragraph on or before such 180th day, such
commitment shall be deemed not to have been a permitted application of Net
Available Proceeds.


 


The
amount of Net Available Proceeds not applied or invested as provided in this
paragraph will constitute “Excess Proceeds.”


 


When
the aggregate amount of Excess Proceeds equals or exceeds $10.0 million, the
Company shall be required to make an offer to purchase from all Holders and, if
applicable, redeem (or make an offer to do so) any Pari Passu Indebtedness of
the Company the provisions of which require the Company to redeem such
Indebtedness with the proceeds from any Asset Sales (or offer to do so), in an
aggregate principal amount of Notes and such Pari Passu Indebtedness equal to
the amount of such Excess Proceeds as follows:


 


(1)                                  the Company shall (a) make an offer to
purchase (a “Net Proceeds Offer”)
to all Holders in accordance with the procedures set forth in this Indenture,
and (b) redeem (or make an offer to do so) any such other Pari Passu
Indebtedness, pro rata in
proportion to the respective principal amounts of the Notes and such other
Indebtedness required to be redeemed, the maximum principal amount of Notes and
Pari Passu Indebtedness that may be redeemed out of the amount (the “Payment Amount”) of such Excess Proceeds;


 


(2)                                  the offer price for the Notes will be payable
in cash in an amount equal to 100% of the principal amount of the Notes
tendered pursuant to a Net Proceeds Offer, plus accrued and unpaid interest
thereon, if any, to the date such Net Proceeds Offer is consummated (the “Offered Price”), in accordance with the
procedures set forth in this Indenture and the redemption price for such Pari
Passu Indebtedness (the “Pari Passu
Indebtedness Price”) shall be as set forth in the related
documentation governing such Indebtedness;


 


(3)                                  if the aggregate Offered Price of Notes
validly tendered and not withdrawn by Holders thereof exceeds the pro rata portion of the Payment Amount
allocable to the Notes, Notes to be purchased will be selected on a pro rata basis; and


 


(4)                                  upon completion of such Net Proceeds Offer in
accordance with the foregoing provisions, the amount of Excess Proceeds with
respect to which such Net Proceeds Offer was made shall be deemed to be zero.


 


To
the extent that the sum of the aggregate Offered Price of Notes tendered
pursuant to a Net Proceeds Offer and the aggregate Pari Passu Indebtedness
Price paid to the holders of such Pari Passu Indebtedness is less than the
Payment Amount relating thereto (such shortfall constituting a “Net Proceeds Deficiency”), the Company may
use the Net Proceeds Deficiency, or a portion thereof, for general corporate
purposes, subject to the provisions of this Indenture.


 


In
the event of the transfer of substantially all (but not all) of the assets of
the Company and the Restricted Subsidiaries as an entirety to a Person in a
transaction covered by and effected in accordance with


 


45

















 


Section 5.01 hereof, the successor shall be deemed to have sold
for cash at Fair Market Value the assets of the Company and the Restricted
Subsidiaries not so transferred for purposes of this Section 4.10, and the
successor shall comply with the provisions of this Section 4.10 with
respect to such deemed sale as if it were an Asset Sale (with such Fair Market
Value being deemed to be Net Available Proceeds for such purpose).


 


The
Company shall comply with applicable tender offer rules, including the requirements
of Rule 14e-1 under the Exchange Act and any other applicable laws and
regulations in connection with the purchase of Notes pursuant to a Net Proceeds
Offer.  To the extent that the
provisions of any securities laws or regulations conflict with this
Section 4.10, the Company shall comply with the applicable securities laws
and regulations and will not be deemed to have breached its obligations under
this Section 4.10 by virtue of this compliance.


 


4.11                           Limitations on Transactions with
Affiliates.


 


The
Company shall not, and shall not permit any Restricted Subsidiary to sell,
lease, transfer or otherwise dispose of any of its assets to, or purchase any
assets from, or enter into any contract, agreement, understanding, loan,
advance or guarantee with, or for the benefit of, any Affiliate (an “Affiliate Transaction”), unless:


 


(1)                                  such Affiliate Transaction is on terms that
are no less favorable to the Company or the relevant Restricted Subsidiary than
those that would have been obtained in a comparable transaction at such time on
an arm’s-length basis by the Company or that Restricted Subsidiary from a
Person that is not an Affiliate of the Company or that Restricted Subsidiary;
and


 


(2)                                  the Company delivers to the Trustee:


 


(a)                                  with respect to any Affiliate Transaction
involving aggregate value in excess of $10.0 million, an Officers’ Certificate
certifying that such Affiliate Transaction complies with clause (1) above and a
Secretary’s Certificate which sets forth and authenticates a resolution that has
been adopted by the Independent Directors approving such Affiliate Transaction;
and


 


(b)                                 with respect to any Affiliate Transaction
involving aggregate value of $30.0 million or more, the certificates described
in the preceding clause (a) and a written opinion as to the fairness of such
Affiliate Transaction to the Company or such Restricted Subsidiary from a
financial point of view issued by an Independent Financial Advisor to the Board
of Directors of the Company.


 


The
foregoing restrictions shall not apply to:


 


(1)                                  transactions (including a merger, acquisition
or consolidation) exclusively between or among (a) the Company and one or more
Restricted Subsidiaries or (b) Restricted Subsidiaries other than transactions
pursuant to which any Affiliate of the Company (other than another Restricted
Subsidiary) will receive, directly or indirectly, any payment in respect of
Equity Interests in any such Restricted Subsidiary owned by such Affiliate;


 


(2)                                  reasonable director, officer and employee
compensation (including bonuses) and other benefits (including retirement,
health, stock option and other benefit plans) and indemnification arrangements,
in each case paid in the ordinary course of business;


 


46

















 


(3)                                  the entering into of a tax sharing agreement,
or payments pursuant thereto, between the Company and/or one or more
Subsidiaries, on the one hand, and any other Person with which the Company or
such Subsidiaries are required or permitted to file a consolidated tax return
or with which the Company or such Subsidiaries are part of a consolidated group
for tax purposes to be used by such Person to pay taxes, and which payments by
the Company and the Restricted Subsidiaries are not in excess of the tax
liabilities that would have been payable by them on a stand-alone basis;


 


(4)                                  loans and advances permitted by clause (3) of
the definition of “Permitted Investments”;


 


(5)                                  Restricted Payments or Permitted
Investments  made in accordance with
Section 4.07 hereof;


 


(6)                                  any transaction with a Person that would
constitute an Affiliate Transaction solely because the Company or a Restricted
Subsidiary owns an equity interest in or otherwise controls such Person; other
than transactions pursuant to which any Affiliate of the Company (other than a
Restricted Subsidiary) will receive, directly or indirectly, any payment in
respect of any Equity Interest in such Person;


 


(7)                                  (a) any transaction with an Affiliate where
the only consideration paid by the Company or any Restricted Subsidiary is
Qualified Equity Interests or (b) the issuance or sale of any Qualified Equity
Interests;


 


(8)                                  any transaction entered into pursuant to the
Spin-Off Agreements;


 


(9)                                  if such Affiliate Transaction is with any
Person solely in its capacity as a holder of debt or capital stock of the
Company or any of Restricted Subsidiary, any transaction where such Person is
treated no more favorably than any other holder of debt or capital stock of the
Company or any Restricted Subsidiary;


 


(10)                            transactions effected pursuant to agreements
in effect on the date of this Indenture and any amendment, modification or
replacement to such agreement (so long as the amendment, modification or
replacement is not disadvantageous to the Holders of the Notes in any respect);


 


(11)                            the consummation of the IPO Transactions, the
Liability Management Transactions and the Contribution Transactions;


 


(12)                            transactions between the Company or any
Restricted Subsidiary and any Securitization Entity in connection with a
Qualified Securitization Transaction, in each case provided that such transactions are not otherwise prohibited
by this Indenture; and


 


(13)                            transactions involving aggregate
consideration not to exceed $1.0 million.


 


4.12                           Limitations on Liens.


 


The
Company shall not, and shall not permit any Guarantor to, directly or
indirectly, create, incur, assume or permit or suffer to exist any Lien of any
nature whatsoever against any assets of the Company or any Restricted
Subsidiary (including Equity Interests of a Restricted Subsidiary), whether
owned at the Issue Date or thereafter acquired, or any proceeds therefrom, or
assign or otherwise convey any right to receive income or profits therefrom
(other than Permitted Liens), securing any Indebtedness, unless
contemporaneously therewith:


 


47

















 


(1)                                  in the case of any Lien securing an
obligation that ranks pari passu
with the Notes or a Note Guarantee, effective provision is made to secure the
Notes or such Note Guarantee, as the case may be, at least equally and ratably
with or prior to such obligation with a Lien on the same collateral; and


 


(2)                                  in the case of any Lien securing an
obligation that is subordinated in right of payment to the Notes or a Note
Guarantee, effective provision is made to secure the Notes or such Note
Guarantee, as the case may be, with a Lien on the same collateral that is prior
to the Lien securing such subordinated obligation,


 


in
each case, for so long as such obligation is secured by such Lien.


 


4.13                           Limitations on Designation of
Unrestricted Subsidiaries.


 


The
Company may designate any Subsidiary (including any newly formed or newly
acquired Subsidiary) of the Company as an “Unrestricted Subsidiary” under this
Indenture (a “Designation”) only
if:


 


(1)                                  no Default shall have occurred and be
continuing at the time of or after giving effect to such Designation; and


 


(2)                                  the Company would be permitted to make, at
the time of such Designation, (a) a Permitted Investment or (b) an Investment
pursuant to the first paragraph of Section 4.07 hereof, in either case, in
an amount (the “Designation Amount”)
equal to the Fair Market Value of the Company’s proportionate interest in such
Subsidiary on such date;


 


No
Subsidiary shall be Designated as an “Unrestricted Subsidiary” unless such
Subsidiary:


 


(1)                                  has no Indebtedness other than Non-Recourse
Debt;


 


(2)                                  is not party to any agreement, contract,
arrangement or understanding with the Company or any Restricted Subsidiary
unless the terms of the agreement, contract, arrangement or understanding are
no less favorable to the Company or the Restricted Subsidiary than those that
might be obtained at the time from Persons who are not Affiliates;


 


(3)                                  is a Person with respect to which neither the
Company nor any Restricted Subsidiary has any direct or indirect obligation (a)
to subscribe for additional Equity Interests or (b) to maintain or preserve the
Person’s financial condition or to cause the Person to achieve any specified
levels of operating results; and


 


(4)                                  has not guaranteed or otherwise directly or
indirectly provided credit support for any Indebtedness of the Company or any
Restricted Subsidiary, except for any guarantee given solely to support the
pledge by the Company or any Restricted Subsidiary of the Equity Interests of
such Unrestricted Subsidiary, which guarantee is not recourse to the Company or
any Restricted Subsidiary.


 


If,
at any time, any Unrestricted Subsidiary fails to meet the preceding
requirements as an Unrestricted Subsidiary, it shall thereafter cease to be an
Unrestricted Subsidiary for purposes of this Indenture and any Indebtedness of
the Subsidiary and any Liens on assets of such Subsidiary shall be deemed to be
incurred by a Restricted Subsidiary as of the date and, if the Indebtedness is
not permitted to be incurred under Section 4.09 hereof or the Lien is not
permitted under Section 4.12 hereof, the Company shall be in default of
the applicable Section.


 


48

















 


The
Company may redesignate an Unrestricted Subsidiary as a Restricted Subsidiary
(a “Redesignation”) only if:


 


(1)                                  no Default shall have occurred and be
continuing at the time of and after giving effect to such Redesignation; and


 


(2)                                  all Liens, Indebtedness and Investments of
such Unrestricted Subsidiary outstanding immediately following such
Redesignation would, if incurred or made at such time, have been permitted to
be incurred or made for all purposes of this Indenture.


 


All
Designations and Redesignations must be evidenced by resolutions of the Board
of Directors of the Company, delivered to the Trustee certifying compliance
with the foregoing provisions.


 


4.14                           Conduct of Business.


 


The
Company shall not, and shall not permit any Restricted Subsidiary to, engage in
any business other than the Permitted Business.


 


4.15                           Change of
Control.


 


Upon
the occurrence of any Change of Control, other than a Change of Control
following the assignment to the Notes of an Investment Grade Rating, each
Holder will have the right to require that the Company (or any designee of the
Company) purchase all or any part (equal to $1,000 or an integral multiple of
$1,000) of that Holder’s Notes pursuant to a Change of Control Offer (defined
below)  for a cash price (the “Change of Control Purchase Price”) equal to
101% of the principal amount of the Notes to be purchased, plus accrued and
unpaid interest thereon, if any, to but excluding the date of purchase.


 


Within
30 days following any Change of Control, the Company (or any designee of the
Company) will mail, or caused to be mailed, to the Holders a notice:


 


(1)                                  describing the transaction or transactions
that constitute the Change of Control;


 


(2)                                  offering to purchase, pursuant to the
procedures required by this Indenture and described in the notice (a “Change of Control Offer”), on a date
specified in the notice (which shall be a Business Day not earlier than 30 days
nor later than 60 days from the date the notice is mailed) and for the Change
of Control Purchase Price, all Notes properly tendered by such Holder pursuant
to such Change of Control Offer; and


 


(3)                                  describing the procedures that Holders must
follow to accept the Change of Control Offer. 
The Change of Control Offer is required to remain open for at least 20
Business Days or for such longer period as is required by law.


 


Notwithstanding
the foregoing, the Company will not be obligated to purchase the Notes upon a
Change of Control if the Company has exercised its right to redeem all of the
Notes as set forth under Section 3.07 hereof.  The Company (or any designee of the Company) shall publicly
announce the results of the Change of Control Offer on or as soon as
practicable after the date of purchase.


 


The
Company’s obligation to make a Change of Control Offer will be satisfied if (i)
a third party makes the Change of Control Offer in the manner and at the times
and otherwise in compliance with the requirements applicable to a Change of
Control Offer made by the Company and purchases all Notes properly tendered and


 


49

















 


not withdrawn under the Change of Control Offer or, (ii) notice of
redemption has been given pursuant to Section 3.03 hereof.


 


The
Company (or any designee of the Company) 
shall comply with applicable tender offer rules, including the
requirements of Rule 14e-l under the Exchange Act and any other applicable laws
and regulations in connection with the purchase of Notes pursuant to a Change
of Control Offer.  To the extent that
the provisions of any securities laws or regulations conflict with the “Change
of Control” provisions of this Indenture, the Company shall comply with the
applicable securities laws and regulations and will not be deemed to have
breached its obligations under the “Change of Control” provisions of this
Indenture by virtue of this compliance.


 


4.16                           Limitation on Guarantees of
Indebtedness by Restricted Subsidiaries.


 


The
Company shall not permit any Restricted Subsidiary, directly or indirectly, to
(i) guarantee, assume or in any other manner become liable with respect to any
Pari Passu Indebtedness or Subordinated Indebtedness of the Company or any
other Restricted Subsidiary or (ii) issue any Pari Passu Indebtedness or
Subordinated Indebtedness, unless, in either case, such Restricted Subsidiary
promptly thereafter provides a Note Guarantee. 
If the other Indebtedness issued or guarantee issued is Pari Passu
Indebtedness, then the Restricted Subsidiary’s Note Guarantee shall be pari passu in right of payment with such
Restricted Subsidiary’s Indebtedness or guarantee, as the case may be, so
issued.  If the other Indebtedness or
guarantee issued is Subordinated Indebtedness, then the Restricted Subsidiary’s
Note Guarantee shall be senior in right of payment to such Restricted
Subsidiary’s Indebtedness or guarantee, as the case may be, so issued to the
same extent as such other Indebtedness or guarantee is subordinated to any
other Indebtedness of such Restricted Subsidiary.


 


ARTICLE V


 


SUCCESSORS


 


5.01                           Limitations on Mergers, Consolidations, Etc..


 


The
Company will not, directly or indirectly, in a single transaction or a series
of related transactions, consolidate or merge with or into another Person
(other than a merger with an Affiliate solely for the purpose of and with the
effect of changing the Company’s jurisdiction of incorporation to another State
of the United States), or sell, lease, transfer, convey or otherwise dispose of
or assign all or substantially all of the assets of the Company or the Company
and the Restricted Subsidiaries (taken as a whole) unless, in either case:


 


(1)                                  either:


 


(a)                                  the Company will be the surviving or
continuing Person; or


 


(b)                                 the Person formed by or surviving such
consolidation or merger or to which such sale, lease, conveyance or other
disposition shall be made (or, in the case of a Plan of Liquidation, any Person
to which assets are transferred) (collectively, the “Successor”) is a corporation, limited liability company or
limited partnership organized and existing under the laws of any State of the
United States of America or the District of Columbia, and the Successor
expressly assumes, by supplemental indenture in form and substance reasonably
satisfactory to the Trustee, all of the obligations of the Company under the
Notes and this Indenture;


 


50

















 


(2)                                  immediately prior to and immediately after
giving effect to such transaction and the assumption of the obligations as set
forth in clause (1)(b) above and the incurrence of any Indebtedness to be
incurred in connection therewith, and the use of any net proceeds therefrom on
a pro forma basis, no Default
shall have occurred and be continuing; and


 


(3)                                  immediately after and giving effect to such
transaction and the assumption of the obligations set forth in clause (1)(b)
above and the incurrence of any Indebtedness to be incurred in connection
therewith, and the use of any net proceeds therefrom on a pro forma basis, the Company or the
Successor, as the case may be, could incur $1.00 of additional Indebtedness
pursuant to the Coverage Ratio Exception.


 


For
purposes of this Section 5.01, any Indebtedness of the Successor which was
not Indebtedness of the Company immediately prior to the transaction shall be
deemed to have been incurred in connection with such transaction.


 


Except
as provided under Section 11.05 hereof, no Guarantor may consolidate with
or merge with or into (whether or not such Guarantor is the surviving Person)
another Person, unless:


 


(1)                                  either:


 


(a)                                  such Guarantor will be the surviving or
continuing Person; or


 


(b)                                 the Person formed by or surviving any such
consolidation or merger is another Guarantor or assumes, by supplemental
indenture in form and substance reasonably satisfactory to the Trustee, all of
the obligations of such Guarantor under the Note Guarantee of such Guarantor and
this Indenture; and


 


(2)                                  immediately after giving effect to such
transaction, no Default shall have occurred and be continuing.


 


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


 


Upon
any consolidation, combination or merger of the Company or a Guarantor, or any
transfer of all or substantially all of the assets of the Company in accordance
with the foregoing, in which the Company or such Guarantor is not the
continuing obligor under the Notes or its Note Guarantee, the surviving entity
formed by such consolidation or into which the Company or such Guarantor is
merged or the Person to which the conveyance, lease or transfer is made will
succeed to, and be substituted for, and may exercise every right and power of,
the Company or such Guarantor under this Indenture, the Notes and the Note
Guarantees with the same effect as if such surviving entity had been named therein
as the Company or such Guarantor and, except in the case of a lease, the
Company or such Guarantor, as the case may be, will be released from the
obligation to pay the principal of and interest on the Notes or in respect of
its Note Guarantee, as the case may be, and all of the Company’s or such
Guarantor’s other obligations and covenants under the Notes, this Indenture and
its Note Guarantee, if applicable.


 


Notwithstanding
the foregoing, (i) any Restricted Subsidiary may consolidate with, merge with
or into or convey, transfer or lease, in one transaction or a series of
transactions, all or substantially all of its assets to the Company or another
Restricted Subsidiary and (ii) this Section 5.01 will not apply to a
merger of any


 


51

















 


Restricted Subsidiary with no Indebtedness outstanding with an
Affiliate solely for the purpose of reincorporating such Restricted Subsidiary
in another jurisdiction; provided
that the surviving entity is a Restricted Subsidiary.


 


ARTICLE VI


 


DEFAULTS AND
REMEDIES


 


6.01                           Events of
Default.


 


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


 


(1)                                  failure by the Company to pay interest on any
of the Notes when it becomes due and payable and the continuance of any such
failure for 30 days (whether or not such payment is prohibited by the
subordination provisions of this Indenture);


 


(2)                                  failure by the Company to pay the principal
on any of the Notes when it becomes due and payable, whether at stated
maturity, upon redemption, upon purchase, upon acceleration or otherwise
(whether or not such payment is prohibited by the subordination provisions of
this Indenture);


 


(3)                                  failure by the Company to comply with any of
its agreements or covenants described above under (A) Section 5.01 hereof,
or (B) in respect of its obligations to make a Change of Control Offer as
described under Section 4.15 hereof (whether or not such compliance is
prohibited by the subordination provisions of this Indenture);


 


(4)                                  failure by the Company to comply with any
other agreement or covenant in this Indenture and continuance of this failure
for 60 days after notice of the failure has been given to the Company by the
Trustee or by the Holders of at least 25% of the aggregate principal amount of
the Notes then outstanding;


 


(5)                                  default under any mortgage, indenture or
other instrument or agreement under which there may be issued or by which there
may be secured or evidenced Indebtedness of the Company or any Restricted
Subsidiary, whether such Indebtedness now exists or is incurred after the Issue
Date, which default:


 


(a)                                  is caused by a failure to pay at final
maturity principal on such Indebtedness within the applicable express grace
period and any extensions thereof,


 


(b)                                 results in the acceleration of such Indebtedness
prior to its express final maturity or


 


(c)                                  results in the commencement of judicial
proceedings to foreclose upon, or to exercise remedies under applicable law or
applicable security documents to take ownership of, the assets securing such
Indebtedness, and


 


in
each case, the principal amount of such Indebtedness, together with any other
Indebtedness with respect to which an event described in clause (a), (b) or (c)
has occurred and is continuing, aggregates $25.0 million or more;


 


52

















 


(6)                                  any final judgment or judgments which can no
longer be appealed for the payment of money in excess of $25.0 million shall be
rendered against the Company or any Restricted Subsidiary thereof, and shall
not be discharged for any period of 60 consecutive days during which a stay of
enforcement shall not be in effect;


 


(7)                                  the Company or any Significant Subsidiary
pursuant to or within the meaning of any Bankruptcy Law:


 


(a)                                  commences a voluntary case,


 


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


 


(c)                                  consents to the appointment of a Custodian of
it or for all or substantially all of its assets, or


 


(d)                                 makes a general assignment for the benefit of
its creditors;


 


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


 


(a)                                  is for relief against the Company or any
Significant Subsidiary as debtor in an involuntary case,


 


(b)                                 appoints a Custodian of the Company or any
Significant Subsidiary or a Custodian for all or substantially all of the
assets of the Company or any Significant Subsidiary, or


 


(c)                                  orders the liquidation of the Company or any
Significant Subsidiary,


 


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


 


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


 


6.02                           Acceleration.


 


If
an Event of Default (other than an Event of Default specified in clause (7) or
(8) of Section 6.1 hereof with respect to the Company), shall have
occurred and be continuing under this Indenture, the Trustee, by written notice
to the Company, or the Holders of at least 25% in aggregate principal amount of
the Notes then outstanding by written notice to the Company and the Trustee,
may declare (an “acceleration declaration”)
all amounts owing under the Notes to be due and payable immediately.  Upon such declaration of acceleration, the
aggregate principal of and accrued and unpaid interest on the outstanding Notes
shall immediately become due and payable (a) if there is no Indebtedness
outstanding under any Credit Facility at such time, immediately and (b) if
otherwise, upon the earlier of (x) the final maturity (after giving effect to
any applicable grace period or extensions thereof) or an acceleration of any
Indebtedness under any Credit Facility prior to the express final stated
maturity thereof and (y) five business days after the Representative under each
Credit Facility receives the acceleration declaration, but, in the case of this
clause (b) only, if such Event of Default is then continuing; provided, however,
that after such acceleration, but before a judgment or decree based on
acceleration, the Holders


 


53

















 


of a majority in aggregate principal amount of such outstanding Notes
may, under certain circumstances, rescind and annul such acceleration if all
Events of Default, other than the nonpayment of accelerated principal and
interest, have been cured or waived as provided in this Indenture.  If an Event of Default specified in clause
(7) or (8) with respect to the Company occurs, all outstanding Notes shall
become due and payable without any further action or notice.


 


6.03                           Other
Remedies.


 


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


 


The
Trustee may maintain a proceeding even if it does not possess any of the Notes
or does not produce any of them in the proceeding.  A delay or omission by the Trustee or any Holder of a Note in
exercising any right or remedy accruing upon an Event of Default shall not
impair the right or remedy or constitute a waiver of or acquiescence in the
Event of Default.  All remedies are
cumulative to the extent permitted by law.


 


6.04                           Waiver of Past Defaults.


 


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


 


6.05                           Control by Majority.


 


Holders
of a majority in principal amount of the then outstanding Notes may direct the
time, method and place of conducting any proceeding for exercising any remedy
available to the Trustee or exercising any trust or power conferred on it.  However, the Trustee may refuse to follow
any direction that conflicts with law or this Indenture that the Trustee
determines may be unduly prejudicial to the rights of other Holders of Notes or
that may involve the Trustee in personal liability.


 


6.06                           Limitation on Suits.


 


No
Holder will have any right to institute any proceeding with respect to this
Indenture or for any remedy thereunder, unless the Trustee:


 


(1)                                  has failed to act for a period of 60 days
after receiving written notice of a continuing Event of Default by such Holder
and a request to act by Holders of at least 25% in aggregate principal amount of
Notes outstanding;


 


(2)                                  has been offered indemnity satisfactory to it
in its reasonable judgment; and


 


(3)                                  has not received from the Holders of a
majority in aggregate principal amount of the outstanding Notes a direction
inconsistent with such request.


 


54

















 


However,
such limitations do not apply to a suit instituted by a Holder of any Note for
enforcement of payment of the principal of or interest on such Note on or after
the due date therefor (after giving effect to the grace period specified in
clause (1) of Section 6.01 hereof).


 


6.07                           Rights of Holders of Notes to Receive Payment.


 


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


 


6.08                           Collection Suit by Trustee.


 


If
an Event of Default specified in Section 6.01(1) or (2) occurs and is
continuing, the Trustee is authorized to recover judgment in its own name and
as trustee of an express trust against the Company for the whole amount of
principal of, premium and interest remaining unpaid on the Notes and interest
on overdue principal and, to the extent lawful, interest and such further
amount as shall be sufficient to cover the costs and expenses of collection,
including the reasonable compensation, expenses, disbursements and advances of
the Trustee, its agents and counsel.


 


6.09                           Trustee May File Proofs of Claim.


 


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


 


6.10                           Priorities.


 


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


 


First:  to the Trustee, its agents and attorneys for
amounts due under Section 7.07 hereof, including payment of all
compensation, expense and liabilities incurred, and all advances made, by the
Trustee and the costs and expenses of collection;


 


55

















 


Second:  to Holders of Notes for amounts due and
unpaid on the Notes for principal, premium and interest, ratably, without
preference or priority of any kind, according to the amounts due and payable on
the Notes for principal, premium and interest, respectively; and


 


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


 


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


 


6.11                           Undertaking for Costs.


 


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


 


6.12                           Compliance Statement.


 


The
Company is required to deliver to the Trustee annually a statement regarding
compliance with this Indenture and, upon any Officer of the Company becoming
aware of any Default, a statement specifying such Default and what action the
Company is taking or proposes to take with respect thereto.


 


ARTICLE VII


 


TRUSTEE


 


7.01                           Duties of
Trustee.


 


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


 


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


 


(a)                                  the duties of the Trustee shall be determined
solely by the express provisions of this Indenture and the Trustee need perform
only those duties that are specifically set forth in this Indenture and no
others, and no implied covenants or obligations shall be read into this
Indenture against the Trustee; and


 


(b)                                 in the absence of bad faith on its part, the
Trustee may conclusively rely, as to the truth of the statements and the
correctness of the opinions expressed therein, upon certificates or opinions
furnished to the Trustee and conforming to the requirements of this
Indenture.  However, the Trustee shall
examine the certificates and opinions to determine whether or not they conform
to the requirements of this Indenture, but need not confirm or investigate the
accuracy of mathematical calculations or other facts stated therein.


 


56

















 


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


 


(a)                                  this paragraph does not limit the effect of
paragraph (2) of this Section;


 


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


 


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


 


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


 


(5)                                  Whether or not therein expressly so provided,
every provision of this Indenture that in any way relates to the Trustee is
subject to paragraphs (1), (2), (3) and (4) of this Section.


 


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


 


7.02                           Rights of Trustee.


 


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


 


(2)                                  Before the Trustee acts or refrains from
acting, it may require an Officers’ Certificate or an Opinion of Counsel or
both.  The Trustee shall not be liable
for any action it takes or omits to take in good faith in reliance on such
Officers’ Certificate or Opinion of Counsel. 
The Trustee may consult with counsel of its selection and the advice of
such counsel or any Opinion of Counsel shall be full and complete authorization
and protection from liability in respect of any action taken, suffered or
omitted by it hereunder in good faith and in reliance thereon.


 


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


 


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


 


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


 


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


 


57

















 


(7)                                  The Trustee shall not be bound to make any
investigation into the facts or matters stated in any resolution, certificate,
statement, instrument, opinion, report, notice, request, direction, consent,
order, bond, debenture, note, other evidence of indebtedness or other paper or
document, but the Trustee, in its discretion, may make such further inquiry or
investigation into such facts or matters as it sees fit, and, if the Trustee
shall determine to make such further inquiry or investigation, it shall be
entitled to examine the books, records and premises of the Company, personally
or by agent or attorney, and shall incur no liability or additional liability
of any kind by reason of such inquiry or investigation.


 


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


 


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


 


(10)                            The Trustee may request that the Company
deliver an Officers’ Certificate setting forth the names of individuals and/or
titles of officers authorized at such time to take specified actions pursuant
to this Indenture, which Officers’ Certificate may be signed by any Person
authorized to sign an Officers’ Certificate, including any Person specified as
so authorized in any such certificate previously delivered and not superseded.


 


7.03                           Individual Rights of Trustee.


 


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


 


7.04                           Trustee’s Disclaimer.


 


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


 


7.05                           Notice of
Defaults.


 


The
Trustee shall, within 30 days after the occurrence of any Default with respect
to the Notes, give the Holders notice of all uncured Defaults thereunder known
to it; provided, however, that, except in the case of an
Event of Default in payment with respect to the Notes or a Default in complying
Section 5.01 hereof, the Trustee shall be protected in withholding such
notice if and so long as a committee of its trust officers in good faith
determines that the withholding of such notice is in the interest of the
Holders.


 


58

















 


7.06                           Reports by Trustee to Holders of the Notes.


 


Within
60 days after each May 15 beginning with the May 15 following the date of this
Indenture, and for so long as Notes remain outstanding, the Trustee shall mail
to the Holders of the Notes a brief report dated as of such reporting date that
complies with TIA § 313(a) (but if no event described in TIA § 313(a)
has occurred within the twelve months preceding the reporting date, no report
need be transmitted).  The Trustee also
shall comply with TIA § 313(b)(2). 
The Trustee shall also transmit by mail all reports as required by TIA
§ 313(c).


 


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


 


7.07                           Compensation and Indemnity.


 


The
Company shall pay to the Trustee from time to time such compensation for its
acceptance of this Indenture and services hereunder as the Company and the
Trustee shall agree to in writing from time to time.  The Trustee’s compensation shall not be limited by any law on
compensation of a trustee of an express trust. 
The Company shall reimburse the Trustee promptly upon request for all
reasonable disbursements, advances and expenses incurred or made by it in addition
to the compensation for its services. 
Such expenses shall include the reasonable compensation, disbursements
and expenses of the Trustee’s agents and counsel.


 


The
Company shall indemnify the Trustee and any predecessor Trustee and their
agents against any and all losses, liabilities or expenses incurred by it
arising out of or in connection with the acceptance or administration of its
duties under this Indenture, including the costs and expenses of enforcing this
Indenture against the Company (including this Section 7.07) and defending
itself against any claim (whether asserted by the Company or any Holder or any
other person) or liability in connection with the exercise or performance of
any of its powers or duties hereunder, except to the extent any such loss,
liability or expense may be attributable to its negligence or bad faith.  The Trustee shall notify the Company
promptly of any claim for which it may seek indemnity.  Failure by the Trustee to so notify the
Company shall not relieve the Company of its obligations hereunder.  The Company shall defend the claim and the
Trustee shall cooperate in the defense. 
The Trustee may have separate counsel and the Company shall pay the
reasonable fees and expenses of such counsel. 
The Company need not pay for any settlement made without its consent,
which shall not be unreasonably withheld.


 


The
obligations of the Company under this Section 7.07 shall survive the
satisfaction and discharge of this Indenture.


 


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


 


When
the Trustee incurs expenses or renders services after an Event of Default
specified in Section 6.01(7) or (8) hereof occurs, the expenses and the
compensation for the services (including the fees and expenses of its agents
and counsel) are intended to constitute expenses of administration under any
Bankruptcy Law.


 


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


 


59

















 


7.08                           Replacement of Trustee.


 


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


 


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


 


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


 


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


 


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


 


(4)                                  the Trustee becomes incapable of acting.


 


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


 


If
a successor Trustee does not take office within 90 days after the retiring
Trustee resigns or is removed, the retiring Trustee, the Company, or the
Holders of at least 10% in principal amount of the then outstanding Notes may,
at the expense of the Company, petition any court of competent jurisdiction for
the appointment of a successor Trustee.


 


If
the Trustee, after written request by any Holder who has been a Holder for at
least six months, fails to comply with Section 7.10, such Holder may
petition any court of competent jurisdiction for the removal of the Trustee and
the appointment of a successor Trustee.


 


A
successor Trustee shall deliver a written acceptance of its appointment to the
retiring Trustee and to the Company. 
Thereupon, the resignation or removal of the retiring Trustee shall
become effective, and the successor Trustee shall have all the rights, powers
and duties of the Trustee under this Indenture.  The successor Trustee shall mail a notice of its succession to
Holders.  The retiring Trustee shall
promptly transfer all property held by it as Trustee to the successor Trustee, provided all sums owing to the Trustee
hereunder have been paid and subject to the Lien provided for in
Section 7.07 hereof. 
Notwithstanding replacement of the Trustee pursuant to this
Section 7.08, the Company’s obligations under Section 7.07 hereof
shall continue for the benefit of the retiring Trustee.


 


7.09                           Successor Trustee by Merger, etc.


 


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


 


60

















 


7.10                           Eligibility; Disqualification.


 


There
shall at all times be a Trustee hereunder that is a corporation organized and
doing business under the laws of the United States of America or of any state
thereof that is authorized under such laws to exercise corporate trustee power,
that is subject to supervision or examination by federal or state authorities
and that has a combined capital and surplus of at least $100 million as set
forth in its most recent published annual report of condition.


 


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


 


7.11                           Preferential Collection of Claims Against Company.


 


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


 


ARTICLE VIII


 


LEGAL
DEFEASANCE AND COVENANT DEFEASANCE


 


8.01                           Option to Effect Legal Defeasance or Covenant
Defeasance.


 


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


 


8.02                           Legal Defeasance and Discharge.


 


Upon
the Company’s exercise under Section 8.01 hereof of the option applicable
to this Section 8.02, the Company shall, subject to the satisfaction of
the conditions set forth in Section 8.04 hereof, be deemed to have been
discharged from its obligations with respect to all outstanding Notes and all
obligations of the Guarantors discharged with respect to the Note Guarantees on
the date the conditions set forth below are satisfied (hereinafter, “Legal Defeasance”).  For this purpose, Legal Defeasance means
that the Company and any Guarantors shall be deemed to have paid and discharged
the entire indebtedness represented by the Notes and any Note Guarantees, and
this Indenture shall cease to be of further effect as to all outstanding Notes
and Note Guarantees, except as to:


 


(1)                                  rights of Holders to receive payments in
respect of the principal of and interest on the Notes when such payments are
due from the trust funds referred to below,


 


(2)                                  the Company’s obligations with respect to the
Notes concerning issuing temporary Notes, registration of Notes, mutilated,
destroyed, lost or stolen Notes, and the maintenance of an office or agency for
payment and money for security payments held in trust,


 


(3)                                  the rights, powers, trust, duties, and
immunities of the Trustee, and the Company’s obligation in connection
therewith, and


 


(4)                                  the Legal Defeasance provisions of this
Indenture.


 


61

















 


8.03                           Covenant Defeasance.


 


Upon
the Company’s exercise under Section 8.01 hereof of the option applicable
to this Section 8.03, the Company and the Guarantors shall, subject to the
satisfaction of the conditions set forth in Section 8.04 hereof, be
released from its obligations under the covenants contained in Sections 4.04,
4.06, 4.07, 4.08, 4.09, 4.10, 4.11, 4.12, 4.13, 4.15 and 4.16 hereof  with respect to the outstanding Notes on
and after the date the conditions set forth in Section 8.04 are satisfied
(hereinafter, “Covenant Defeasance”),
and the Notes shall thereafter be deemed not “outstanding” for the purposes of
any direction, waiver, consent or declaration or act of Holders (and the
consequences of any thereof) in connection with such covenants, but shall
continue to be deemed “outstanding” for all other purposes hereunder (it being
understood that such Notes shall not be deemed outstanding for accounting
purposes).  For this purpose, Covenant
Defeasance means that, with respect to the outstanding Notes, the Company may
omit to comply with and shall have no liability in respect of any term,
condition or limitation set forth in any such covenant, whether directly or
indirectly, by reason of any reference elsewhere herein to any such covenant or
by reason of any reference in any such covenant to any other provision herein
or in any other document and such omission to comply shall not constitute a
Default or an Event of Default under Section 6.01 hereof (not including
non-payment, bankruptcy, receivership, rehabilitation and insolvency events),
but, except as specified above, the remainder of this Indenture and such Notes
shall be unaffected thereby.  Covenant
Defeasance will not be effective until such bankruptcy, receivership,
rehabilitation and insolvency events no longer apply.


 


8.04                           Conditions to Legal or Covenant Defeasance.


 


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


 


In
order to exercise either Legal Defeasance or Covenant Defeasance:


 


(1)                                  the Company must irrevocably deposit with the
Trustee, in trust, for the benefit of the Holders, U.S. legal tender, U.S.
Government Obligations or a combination thereof, in such amounts as will be
sufficient (without reinvestment) in the opinion of a nationally recognized
firm of independent public accountants selected by the Company, to pay the
principal of and interest on the Notes on the stated date for payment or on the
redemption date of the principal or installment of principal of or interest on
the Notes,


 


(2)                                  in the case of Legal Defeasance, the Company
shall have delivered to the Trustee an opinion of counsel in the United States
confirming that:


 


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


 


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


 


in
either case to the effect that, and based thereon this opinion of counsel shall
confirm that, the Holders will not recognize income, gain or loss for U.S.
federal income tax purposes as a result of the Legal Defeasance and will be
subject to U.S. federal income tax on the same amounts, in the same manner and
at the same times as would have been the case if such Legal Defeasance had not
occurred,


 


(3)                                  in the case of Covenant Defeasance, the
Company shall have delivered to the Trustee an opinion of counsel in the United
States reasonably acceptable to the Trustee confirming that the


 


62

















 


Holders
will not recognize income, gain or loss for U.S. federal income tax purposes as
a result of such Covenant Defeasance and will be subject to U.S. federal income
tax on the same amounts, in the same manner and at the same times as would have
been the case if the Covenant Defeasance had not occurred,


 


(4)                                  no Default shall have occurred and be
continuing on the date of such deposit (other than a Default resulting from the
borrowing of funds to be applied to such deposit),


 


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


 


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


 


(7)                                  the Company shall have delivered to the
Trustee an Officers’ Certificate and an opinion of counsel, each stating that
the conditions provided for in, in the case of the Officers’ Certificate,
clauses (1) through (6) and, in the case of the opinion of counsel, clauses (2)
and/or (3) and (5) of this paragraph have been complied with.


 


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


 


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


 


The
Company shall pay and indemnify the Trustee against any tax, fee or other
charge imposed on or assessed against the cash or non-callable Government
Securities deposited pursuant to Section 8.04 hereof or the principal and
interest received in respect thereof other than any such tax, fee or other
charge which by law is for the account of the Holders of the outstanding Notes.


 


Anything
in this Article 8 to the contrary notwithstanding, the Trustee shall deliver
or pay to the Company from time to time upon the request of the Company any
money or non-callable Government Securities held by it as provided in
Section 8.04 hereof which, in the opinion of a nationally recognized firm
of independent public accountants expressed in a written certification thereof
delivered to the Trustee (which may be the opinion delivered under
Section 8.04(1) hereof), are in excess of the amount thereof that would
then be required to be deposited to effect an equivalent Legal Defeasance or
Covenant Defeasance.


 


8.06                           Repayment to Company.


 


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


 


63

















 


on its request or (if then held by the Company) shall be discharged
from such trust; and the Holder of such Note shall thereafter look only to the
Company for payment thereof, and all liability of the Trustee or such Paying
Agent with respect to such trust money, and all liability of the Company as
trustee thereof, shall thereupon cease; provided
that the Trustee or such Paying Agent, before being required to make any such
repayment, may at the expense of the Company cause to be published once, in The
New York Times and The Wall Street Journal (national edition), notice that such
money remains unclaimed and that, after a date specified therein, which shall
not be less than 30 days from the date of such notification or publication, any
unclaimed balance of such money then remaining will be repaid to the Company.


 


8.07                           Reinstatement.


 


If
the Trustee or Paying Agent is unable to apply any United States dollars or
non-callable Government Securities in accordance with Section 8.02 or 8.03
hereof, as the case may be, by reason of any order or judgment of any court or
governmental authority enjoining, restraining or otherwise prohibiting such
application, or if funds deposited with the Trustee to effect Covenant
Defeasance are insufficient to pay the principal of and interest on the Notes
when due, then the Company’s obligations under this Indenture and the Notes
shall be revived and reinstated as though no deposit had occurred pursuant to
Section 8.02 or 8.03 hereof until such time as the Trustee or Paying Agent
is permitted to apply all such money in accordance with Section 8.02 or
8.03 hereof, as the case may be; provided
that, if the Company makes any payment of principal of, premium or interest on
any Note following the reinstatement of its obligations, the Company shall be
subrogated to the rights of the Holders of such Notes to receive such payment
from the money held by the Trustee or Paying Agent.


 


ARTICLE IX


 


AMENDMENT,
SUPPLEMENT AND WAIVER


 


9.01                           Without Consent of Holders of Notes.


 


Notwithstanding
Section 9.02 of this Indenture, the Company, the Guarantors and the
Trustee may amend or supplement this Indenture, the Note Guarantees or the
Notes without the consent of any Holder of a Note:


 


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


 


(2)                                  to provide for uncertificated Notes in
addition to or in place of certificated Notes or to alter the provisions of
Article 2 hereof (including the related definitions) in a manner that does
not materially adversely affect any Holder;


 


(3)                                  to provide for the assumption of the
Company’s or a Guarantor’s obligations to the Holders of the Notes by a
successor to the Company pursuant to Article 5 or Article 11 hereof;


 


(4)                                  to release any Guarantor from any of its
obligations under its Note Guaranty or this Indenture (to the extent provided
by this Indenture);


 


(5)                                  to make any change that would provide any
additional rights or benefits to the Holders or that does not materially
adversely affect the legal rights hereunder of any Holder;


 


64

















 


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


 


(7)                                  to provide for the issuance of Additional
Notes in accordance with the limitations set forth in this Indenture as of the
date hereof; or


 


(8)                                  to allow any Guarantor to execute a supplemental
indenture and/or a Note Guarantee with respect to the Notes.


 


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


 


9.02                           With Consent of Holders of Notes.


 


Except
as provided below in this Section 9.02, the Company, the Guarantors and
the Trustee may amend or supplement this Indenture (including Sections 4.10 and
4.15 hereof), the Note Guarantees and the Notes with the consent of the Holders
of at least a majority in principal amount of the Notes (including Additional
Notes, if any) then outstanding voting as a single class (including consents
obtained in connection with a tender offer for, or purchase of, the Notes),
and, subject to Sections 6.04 and 6.07 hereof, any existing Default or Event of
Default (other than a Default or Event of Default in the payment of the
principal of, premium or interest on the Notes, except a payment default
resulting from an acceleration that has been rescinded) or compliance with any
provision of this Indenture, the Note Guarantees or the Notes may be waived
with the consent of the Holders of a majority in principal amount of the then
outstanding Notes (including Additional Notes, if any) voting as a single class
(including consents obtained in connection with a tender offer for, or purchase
of, the Notes).


 


Upon
the request of the Company accompanied by a resolution of its Board of
Directors authorizing the execution of any such amended or supplemental indenture,
and upon the filing with the Trustee of evidence satisfactory to the Trustee of
the consent of the Holders of Notes as aforesaid, and upon receipt by the
Trustee of the documents described in Section 7.02 hereof, the Trustee
shall join with the Company in the execution of such amended or supplemental
indenture unless such amended or supplemental indenture directly affects the
Trustee’s own rights, duties or immunities under this Indenture or otherwise,
in which case the Trustee may in its discretion, but shall not be obligated to,
enter into such amended or supplemental indenture.


 


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


 


After
an amendment, supplement or waiver under this Section becomes effective,
the Company shall mail to the Holders of Notes affected thereby a notice
briefly describing the amendment, supplement or waiver.  Any failure of the Company to mail such
notice, or any defect therein, shall not, however, in any way impair or affect
the validity of any such amended or supplemental indenture or waiver.  Subject to Sections 6.04 and 6.07 hereof,
the Holders of a majority in aggregate principal amount of the Notes (including
Additional Notes, if any) then outstanding voting as a single class may waive
compliance in a particular instance by the Company with


 


65

















 


any provision of this Indenture or the Notes.  However, without the consent of each Holder affected, an
amendment or waiver under this Section 9.02 may not (with respect to any
Notes held by a non-consenting Holder):


 


(1)                                  reduce, or change the maturity, of the
principal of any Note;


 


(2)                                  reduce the rate of or extend the time for
payment of interest on any Note;


 


(3)                                  reduce any premium payable upon optional
redemption of the Notes, change the date on which any Notes are subject to
redemption or otherwise alter the provisions with respect to the redemption of
the notes;


 


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


 


(5)                                  modify or change any provision of this
Indenture or the related definitions affecting the subordination of the Notes
or any Note Guarantee in a manner that adversely affects the Holders;


 


(6)                                  reduce the percentage of Holders necessary to
consent to an amendment or waiver to this Indenture or the Notes;


 


(7)                                  waive a default in the payment of principal of
or premium or interest on any Notes (except a rescission of acceleration of the
Notes by the Holders thereof as provided in this Indenture and a waiver of the
payment default that resulted from such acceleration);


 


(8)                                  impair the rights of Holders to receive
payments of principal of or interest on the Notes on or after the due date
therefore or to institute suit for the enforcement of any payment on the Notes;


 


(9)                                  release any Guarantor that is a Significant
Subsidiary from any of its obligations under its Note Guarantee or this
Indenture, except as permitted by this Indenture; or


 


(10)                            make any change in these amendment and waiver
provisions.


 


9.03                           With Consent of Holders of Senior Debt


 


No
amendment of, or supplement or waiver to, this Indenture shall adversely affect
the rights of any holder of Senior Debt or Guarantor Senior Debt under
Article 10 hereof, without the consent of such holder or, in accordance
with the terms of such Senior Debt or Guarantor Senior Debt, the consent of the
Representative of such holder or the requisite holders of such Senior Debt or
Designated Senior Debt.


 


9.04                           Compliance with Trust Indenture Act.


 


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


 


9.05                           Revocation and Effect of Consents.


 


Until
an amendment, supplement or waiver becomes effective, a consent to it by a
Holder of a Note is a continuing consent by the Holder of a Note and every
subsequent Holder of a Note or portion of a Note that evidences the same debt
as the consenting Holder’s Note, even if notation of the consent is not made on
any Note.  However, any such Holder of a
Note or subsequent Holder of a Note may revoke the consent as to its Note if the


 


66

















 


Trustee receives written notice of revocation before the date the
waiver, supplement or amendment becomes effective.  An amendment, supplement or waiver becomes effective in
accordance with its terms and thereafter binds every Holder.


 


9.06                           Notation on or Exchange of Notes.


 


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


 


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


 


9.07                           Trustee to Sign Amendments, etc.


 


The
Trustee shall sign any amended or supplemental indenture authorized pursuant to
this Article 9 if the amendment or supplement does not adversely affect
the rights, duties, liabilities or immunities of the Trustee.  The Company may not sign an amendment or
supplemental indenture until the Board of Directors approves it.  In executing any amended or supplemental
indenture, the Trustee shall be entitled to receive and (subject to
Section 7.01 hereof) shall be fully protected in relying upon, in addition
to the documents required by Section 13.04 hereof, an Officer’s
Certificate and an Opinion of Counsel.


 


ARTICLE X


 


SUBORDINATION


 


10.01                     Agreement to
Subordinate.


 


The
Company agrees, and each Holder by accepting a Note agrees, that the
Indebtedness evidenced by the Notes is subordinated in right of payment, to the
extent and in the manner provided in this Article 10, to the prior payment
in full in cash or cash equivalents of all Obligations due in respect of Senior
Debt (whether outstanding on the date hereof or hereafter created, incurred,
assumed or guaranteed), including all Obligations with respect to the Credit
Facilities, whether outstanding on the Issue Date or incurred after that date,
and that the subordination is for the benefit of the holders of Senior Debt,
including Senior Debt incurred after the date of this Indenture.


 


Notwithstanding
anything to the contrary, payments and distributions made from the trust
established pursuant to Articles 8 and 12 hereof will be permitted and will not
be subordinated so long as the payments into the trust were made in accordance
with the requirements described under Articles 8 and 12 and did not violate the
subordination provisions when they were made.


 


10.02                     Liquidation; Dissolution; Bankruptcy.


 


The
holders of Senior Debt of the Company shall be entitled to receive payment in
full in cash or cash equivalents of all Obligations due in respect of Senior
Debt before Holders shall be entitled to receive any payment or distribution of
any kind or character with respect to any Obligations on or relating to the
Notes (other than in Permitted Junior Securities) in the event of any
distribution to creditors:


 


67

















 


(1)                                  in a total or partial
liquidation, dissolution or winding up of the Company;


 


(2)                                  in a total
bankruptcy, reorganization, insolvency, receivership or similar proceeding
relating to the Company or its assets;


 


(3)                                  in an assignment for
the benefit of creditors; or


 


(4)                                  in any marshalling of
the Company’s assets and liabilities.


 


10.03                     Default on Designated Senior Debt.


 


(1)                                  The Company may not make any payment or
distribution of any kind or character with respect to any Obligations on or
relating to the Notes or acquire any Notes for cash or assets or otherwise
(other than, in either case, in Permitted Junior Securities), if:


 


(a)                                  a payment default on any Senior Debt occurs
and is continuing; or


 


(b)                                 any other default occurs and is continuing on
any series of Designated Senior Debt that permits holders of such series of
Designated Senior Debt to accelerate its maturity and the Trustee receives a
notice of the default (a “Payment Blockage
Notice”) from the Representative of such Designated Senior Debt.


 


(2)                                  Payments on and distributions with respect to
any Obligations on or with respect to the Notes may and shall be resumed:


 


(a)                                  in the case of a payment default, upon the
date upon on which all payment defaults are cured or waived, and


 


(b)                                 in case of a nonpayment default on Designated
Senior Debt, the earliest of (1) the date on which such nonpayment default is
cured or waived, (2) 179 days after the date on which the applicable Payment
Blockage Notice is received or (3) the date on which the Trustee receives notice
from the Representative for all applicable Designated Senior Debt rescinding
the Payment Blockage Notice, unless the maturity of any Designated Senior Debt
has been accelerated.


 


No
new Payment Blockage Notice may be delivered unless and until 360 days have
elapsed since the effectiveness of the immediately prior Payment Blockage
Notice.


 


No
nonpayment default that existed or was continuing on the date of delivery of
any Payment Blockage Notice to the Trustee shall be, or be made, the basis for
a subsequent Payment Blockage Notice unless such default shall have been cured
or waived for a period of not less than 90 consecutive days.  Any subsequent action or any breach of any
financial covenants for a period ending after the date of delivery of the initial
Payment Blockage Notice that in either case would give rise to a default
pursuant to any provisions under which a default previously existed or was
continuing will constitute a new default for this purpose.


 


10.04                     Acceleration of Securities.


 


The
Company shall promptly notify the Representative of the Designated Senior Debt
if payment of the Notes is accelerated because of an Event of Default.


 


68

















 


10.05                     When Distribution Must Be Paid Over.


 


In
the event that the Trustee or any Holder receives any payment of any
Obligations with respect to the Notes (except Permitted Junior Securities or
payments and other distributions made from the defeasance trust described under
Article 8 hereof) when the payment is prohibited by Section 10.03
hereof, such payment shall be held by the Trustee or such Holder, in trust for
the benefit of, and shall be paid forthwith over and delivered, upon written
request, to, the holders of Senior Debt as their interests may appear or their
Representative under this Indenture or other agreement (if any) pursuant to
which Senior Debt may have been issued, as their respective interests may
appear, for application to the payment of all Obligations with respect to
Senior Debt remaining unpaid to the extent necessary to pay such Obligations in
full in accordance with their terms, after giving effect to any concurrent
payment or distribution to or for the holders of Senior Debt.


 


With
respect to the holders of Senior Debt, the Trustee undertakes to perform only
such obligations on the part of the Trustee as are specifically set forth in
this Article 10, and no implied covenants or obligations with respect to
the holders of Senior Debt shall be read into this Indenture against the
Trustee.  The Trustee shall not be
deemed to owe any fiduciary duty to the holders of Senior Debt, and shall not
be liable to any such holders if the Trustee shall pay over or distribute to or
on behalf of Holders or the Company or any other Person money or assets to which
any holders of Senior Debt shall be entitled by virtue of this Article 10,
except if such payment is made as a result of the willful misconduct or gross
negligence of the Trustee.


 


10.06                     Notice by
Company.


 


The
Company shall promptly notify the Trustee and the Paying Agent of any facts
known to the Company that would cause a payment of any Obligations with respect
to the Notes to violate this Article 10, but failure to give such notice
shall not affect the subordination of the Notes to the Senior Debt as provided
in this Article 10.


 


10.07                     Subrogation.


 


After
all Senior Debt is paid in full and until the Notes are paid in full, Holders
of Notes shall be subrogated (equally and ratably with all other Indebtedness pari passu with the Notes) to the rights of
holders of Senior Debt to receive distributions applicable to Senior Debt to
the extent that distributions otherwise payable to the Holders of Notes have
been applied to the payment of Senior Debt. 
A distribution made under this Article 10 to holders of Senior Debt
that otherwise would have been made to Holders of Notes is not, as between the
Company and Holders, a payment by the Company on the Notes.


 


10.08                     Relative
Rights.


 


This
Article 10 defines the relative rights of Holders of Notes and holders of Senior
Debt.  Nothing in this Indenture shall:


 


(i)                       impair, as between the Company and Holders of Notes, the obligation of
the Company, which is absolute and unconditional, to pay principal of and
interest on the Notes in accordance with their terms;


 


(ii)                    affect the relative rights of Holders of Notes and creditors of the
Company other than their rights in relation to holders of Senior Debt; or


 


69

















 


(iii)                 prevent
the Trustee or any Holder of Notes from exercising its available remedies upon
a Default or Event of Default, subject to the rights of holders and owners of
Senior Debt to receive distributions and payments otherwise payable to Holders
of Notes.


 


If
the Company fails because of this Article 10 to pay principal of or
interest on a Note on the due date, the failure is still a Default or Event of
Default.


 


10.09                     Subordination May Not Be Impaired by Company.


 


No
right of any holder of Senior Debt to enforce the subordination of the
Indebtedness evidenced by the Notes shall be impaired by any act or failure to
act by the Company or any Holder or by the failure of the Company or any Holder
to comply with this Indenture.


 


10.10                     Distribution or Notice to
Representative.


 


Whenever
a distribution is to be made or a notice given to holders of Senior Debt, the
distribution may be made and the notice given to their Representative.


 


Upon
any payment or distribution of assets of the Company referred to in this
Article 10, the Trustee and the Holders of Notes shall be entitled to rely
upon any order or decree made by any court of competent jurisdiction or upon
any certificate of such Representative or of the liquidating trustee or agent
or other Person making any distribution to the Trustee or to the Holders of
Notes for the purpose of ascertaining the Persons entitled to participate in
such distribution, the holders of the Senior Debt 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
Article 10.


 


10.11                     Rights of Trustee and Paying Agent.


 


Notwithstanding
the provisions of this Article 10 or any other provision of this
Indenture, the Trustee shall not be charged with knowledge of the existence of any
facts that would prohibit the making of any payment or distribution by the
Trustee, and the Trustee and the Paying Agent may continue to make payments on
the Notes, unless the Trustee shall have received at its Corporate Trust Office
at least five Business Days prior to the date of such payment written notice of
facts that would cause the payment of any Obligations with respect to the Notes
to violate this Article 10.  Only
the Company or a Representative may give the notice.  Nothing in this Article 10 shall impair the claims of, or
payments to, the Trustee under or pursuant to Section 7.07 hereof.


 


The
Trustee in its individual or any other capacity may hold Senior Debt with the
same rights it would have if it were not Trustee.  Any Agent may do the same with like rights.


 


10.12                     Authorization to Effect Subordination.


 


Each
Holder of Notes, by the Holder’s acceptance thereof, authorizes and directs the
Trustee on such Holder’s behalf to take such action as may be necessary or
appropriate to effectuate the subordination as provided in this
Article 10, and appoints the Trustee to act as such Holder’s
attorney-in-fact for any and all such purposes.  If the Trustee does not file a proper proof of claim or proof of
debt in the form required in any proceeding referred to in Section 6.09
hereof at least 30 days before the expiration of the time to file such claim,
the Representatives are hereby authorized to file an appropriate claim for and
on behalf of the Holders of the Notes.


 


70

















 


10.13                     Amendments.


 


The
provisions of this Article 10 shall not be amended or modified without the
written consent of the holders of all Senior Debt.


 


ARTICLE XI


 


NOTE
GUARANTEES


 


11.01                     Future
Guarantees.


 


If,
after the date of this Indenture, any Restricted Subsidiary of the Company is
required to provide a Note Guarantee pursuant to Section 4.16 hereof, then
the Company shall cause such Restricted Subsidiary, within five Business Days
of the date on which any such Restricted Subsidiary became so obligated, to
execute and deliver to the Trustee a supplemental indenture in the form
attached hereto as Exhibit B (the “Supplemental
Indenture”), pursuant to which such Restricted Subsidiary shall
unconditionally guarantee all of the Company’s obligations under the Notes and
this Indenture on the terms set forth herein and therein.  Any Restricted Subsidiary that becomes a
Guarantor shall remain a Guarantor unless released from its obligations as a
Guarantor pursuant to Section 11.05 hereof.


 


11.02                     Terms of
Guarantees.


 


Subject
to this Article 11 and upon execution and delivery of the Supplemental
Indenture described in Section 11.01 hereof, each of the Restricted
Subsidiaries that will become Guarantors will jointly and severally,
unconditionally guarantees to each Holder of a Note authenticated and delivered
by the Trustee and to the Trustee and its successors and assigns, irrespective
of the validity and enforceability of this Indenture, the Notes or the
obligations of the Company hereunder or thereunder, that:  (a) the principal of and interest on the
Notes will be promptly paid in full when due, whether at maturity, by
acceleration, redemption or otherwise, and interest on the overdue principal of
and interest on the Notes, if any, if lawful, and all other obligations of the
Company to the Holders or the Trustee hereunder or thereunder will be promptly
paid in full or performed, all in accordance with the terms hereof and thereof;
and (b) in case of any extension of time of payment or renewal of any Notes or
any of such other obligations, that same will be promptly paid in full when due
or performed in accordance with the terms of the extension or renewal, whether
at stated maturity, by acceleration or otherwise.  Failing payment when due of any amount so guaranteed or any
performance so guaranteed for whatever reason, the Guarantors shall be jointly
and severally obligated to pay the same immediately.  Each Guarantor shall agree that this is a guarantee of payment
and not a guarantee of collection.


 


Each
Guarantor shall agree that its obligations with regard to its Note Guarantee
shall be unconditional, irrespective of the validity, regularity or
enforceability of the Notes or this Indenture, the absence of any action to
enforce the same, any waiver or consent by any Holder of the Notes with respect
to any provisions hereof or thereof, the recovery of any judgment against the
Company, any action to enforce the same or any other circumstance which might
otherwise constitute a legal or equitable discharge or defense of a
guarantor.  Each Guarantor, to the
extent permitted by law, shall waive diligence, presentment, demand of payment,
filing of claims with a court in the event of insolvency or bankruptcy of the
Company, any right to require a proceeding first against the Company, protest,
notice and all demands whatsoever and covenant that its Note Guarantee shall
not be discharged except by complete performance of the obligations contained
in the Notes and this Indenture.


 


71

















 


If
any Holder or the Trustee is required by any court or otherwise to return to
the Company, any Guarantor or any custodian, trustee, liquidator or other
similar official acting in relation to either the Company or any Guarantor, any
amount paid by either to the Trustee or such Holder, this Note Guarantee, to
the extent theretofore discharged, shall be reinstated in full force and
effect.


 


Each
Guarantor shall agree that it shall not be entitled to any right of subrogation
in relation to the Holders in respect of any obligations guaranteed hereby
until payment in full of all obligations guaranteed hereby.  Each Guarantor shall further agree that, as
between any Guarantors, on the one hand, and the Holders and the Trustee, on
the other hand, (x) the maturity of the obligations guaranteed hereby may be
accelerated as provided in Article 6 hereof for the purposes of the Note
Guarantee, notwithstanding any stay, injunction or other prohibition preventing
such acceleration in respect of the obligations guaranteed hereby, and (y) in
the event of any declaration of acceleration of such obligations as provided in
Article 6 hereof, such obligations (whether or not due and payable) shall
forthwith become due and payable by the Guarantors for the purpose of the Note
Guarantee.  The Guarantors shall have
the right to seek contribution from any non-paying Guarantor so long as the
exercise of such right does not impair the rights of the Holders under the Note
Guarantee.


 


11.03                     Limitation on Guarantor Liability.


 


Each
Guarantor shall confirm, and by its acceptance of Notes, each Holder hereby
confirms, that it is the intention of all such parties that any Note Guarantee
of such Guarantor not constitute a fraudulent transfer or conveyance for
purposes of Bankruptcy Law, the Uniform Fraudulent Conveyance Act, the Uniform
Fraudulent Transfer Act or any similar federal or state law to the extent
applicable to any Note Guarantee.  To
effectuate the foregoing intention, the Trustee and the Holders hereby irrevocably
agree, and the Guarantors shall irrevocably agree, that the obligations of such
Guarantor will, after giving effect to such maximum amount and all other
contingent and fixed liabilities of such Guarantor that are relevant under such
laws, and after giving effect to any collections from, rights to receive
contribution from or payments made by or on behalf of any other Guarantor in
respect of the obligations of such other Guarantor under this Article 11,
result in the obligations of such Guarantor under its Note Guarantee not
constituting a fraudulent transfer or conveyance.


 


11.04                     Execution and Delivery of Supplemental Indenture.


 


To
evidence its Note Guarantee set forth in Section 11.02, each Guarantor
hereby agrees that the Supplemental Indenture shall be executed on behalf of
such Guarantor by an Officer.  Each
Guarantor hereby agrees that its Note Guarantee set forth in Section 11.02
shall remain in full force and effect notwithstanding any failure to endorse on
each Note a notation of such Note Guarantee. 
If an Officer whose signature is on the Supplemental Indenture no longer
holds that office at the time the Trustee authenticates the Note on which a
Note Guarantee is endorsed, the Note Guarantee shall be valid nevertheless.


 


11.05                     Release of Guarantor From Its Note Guarantee.


 


In
the event of a sale or other disposition of all or substantially all of the
assets of any Guarantor, by way of merger, consolidation or otherwise, or a
sale or other disposition of all of the Equity Interests of any Guarantor held
by the Company and the Restricted Subsidiaries or such Guarantor is designated
as an Unrestricted Subsidiary or otherwise ceases to be a Restricted Subsidiary
or if any Guarantor does not guarantee any Indebtedness under any Credit
Facility (other than if such Guarantor no longer guarantees any Indebtedness
under any Credit Facility as a result of payment under any guarantee of any
such Indebtedness by any Guarantor); provided
that a Guarantor shall not be permitted to be released from its Note Guarantee
if it is an obligor with respect to Indebtedness that would not, under
Section 4.09 hereof, be permitted to be incurred by a Restricted
Subsidiary that is not a Guarantor, such Guarantor (in the event of a sale or
other disposition, by way of merger, consolidation or otherwise, of all of the
Equity Interests of such Guarantor) or the corporation acquiring the


 


72

















 


property (in the event of a sale or other disposition of all or
substantially all of the assets of such Guarantor) will be released and
relieved of any obligations under its Note Guarantee; provided that the net proceeds of such
sale or other disposition are applied in accordance with the applicable
provisions of this Indenture.  Upon
delivery by the Company to the Trustee of an Officers’ Certificate and an
Opinion of Counsel to the effect that such sale or other disposition was made
by the Company in accordance with the provisions of this Indenture, the Trustee
shall execute any documents reasonably required in order to evidence the
release of any Guarantor from its obligations under its Note Guarantee.


 


Any
Guarantor not released from its obligations under its Note Guarantee shall
remain liable for the full amount of principal of and interest on the Notes and
for the other obligations of any Guarantor under this Indenture as provided in
this Article 11.


 


ARTICLE XII


 


SATISFACTION AND DISCHARGE


 


12.01                     Satisfaction and Discharge.


 


This
Indenture will be discharged and will cease to be of further effect (except as
to rights of registration of transfer or exchange of Notes which shall survive
until all Notes have been canceled) as to all outstanding Notes when either:


 


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


 


(2)                                  (a) 
all Notes not delivered to the Trustee for cancellation otherwise have
become due and payable, will become due and payable, or may be called for
redemption, within one year or have been called for redemption pursuant to the
provisions described under Section 3.07 hereof, and the Company has
irrevocably deposited or caused to be deposited with the Trustee funds in trust
sufficient to pay and discharge the entire Indebtedness (including all
principal and accrued interest) on the Notes not theretofore delivered to the
Trustee for cancellation,


 


(b)                                 the Company has paid all sums payable by it
under this Indenture, and


 


(c)                                  the Company has delivered irrevocable
instructions to the Trustee to apply the deposited money toward the payment of
the Notes at maturity or on the date of redemption, as the case may be.


 


In
addition, the Company must deliver an Officers’ Certificate and an Opinion of
Counsel to the Trustee stating that all conditions precedent to satisfaction
and discharge have been satisfied.


 


Notwithstanding
the satisfaction and discharge of this Indenture, if money shall have been
deposited with the Trustee pursuant to subclause (a) of clause (2) of this
Section, the provisions of Section 12.02 and Section 8.06 shall
survive.


 


73

















 


12.02                     Application of Trust Money.


 


Subject
to the provisions of Section 8.06, all money deposited with the Trustee
pursuant to Section 12.01 shall be held in trust and applied by it, in
accordance with the provisions of the Notes and this Indenture, to the payment,
either directly or through any Paying Agent (including the Company acting as
its own Paying Agent) as the Trustee may determine, to the Persons entitled
thereto, of the principal (and premium, if any) and interest for whose payment
such money has been deposited with the Trustee; but such money need not be
segregated from other funds except to the extent required by law.


 


If
the Trustee or Paying Agent is unable to apply any money or Government
Securities in accordance with Section 12.01 by reason of any legal
proceeding or by reason of any order or judgment of any court or governmental
authority enjoining, restraining or otherwise prohibiting such application, the
Company’s and any Guarantor’s obligations under this Indenture and the Notes
shall be revived and reinstated as though no deposit had occurred pursuant to
Section 12.01; provided that
if the Company has made any payment of principal of, premium or interest on any
Notes because of the reinstatement of its obligations, the Company shall be
subrogated to the rights of the Holders of such Notes to receive such payment
from the money or Government Securities held by the Trustee or Paying Agent.


 


ARTICLE XIII


 


MISCELLANEOUS


 


13.01                     Trust Indenture Act Controls.


 


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


 


13.02                     Notices.


 


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


 


If
to the Company and/or any Guarantor:


 


ADESA,
Inc.

13085 Hamilton Crossing Boulevard

Carmel, Indiana 46032

Telecopier No.: (317) 815-0500

Attention: 
                        


 


With
a copy to:


 


74

















 


Skadden
Arps, Slate, Meagher & Flom LLP

Four Times Square

New York, NY  10036

Telecopier No.:  (212) 735-2000

Attention:  Stacy J. Kanter, Esq. and
Phyllis G. Korff, Esq.


 


With
a copy to:


 


Kaplan,
Strangis and Kaplan, P.A.

5500 Wells Fargo Center

90 South Seventh Street

Minneapolis, Minnesota 55402

Telecopier No.:  (612) 375-1143

Attention:  James C. Melville, Esq.


 


If
to the Trustee:


 


LaSalle
Bank National Association

135 South LaSalle Street, Suite
1960

Corporate Trust Services Division
Chicago, Illinois 60603
Telecopier No.:  (312) 904-2236

Attention:  Christine Linde, Vice
President


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


75

















 


13.04                     Certificate and Opinion as to Conditions Precedent.


 


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


 


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


 


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


 


13.05                     Statements Required in Certificate or Opinion.


 


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


 


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


 


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


 


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


 


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


 


13.06                     Rules by Trustee and Agents.


 


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


 


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


 


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


 


13.08                     Governing
Law.


 


THIS
INDENTURE, THE NOTES AND THE NOTE GUARANTEES SHALL BE GOVERNED BY AND CONSTRUED
IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.


 


76

















 


13.09                     No Adverse Interpretation of Other Agreements.


 


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


 


13.10                     Successors.


 


All
agreements of the Company in this Indenture and the Notes shall bind its
successors.  All agreements of the
Trustee in this Indenture shall bind its successors.  All agreements of each Guarantor in this Indenture shall bind its
successors, except as otherwise provided in Section 11.05.


 


13.11                     Severability.


 


In
case any provision in this Indenture or in the Notes shall be invalid, illegal
or unenforceable, the validity, legality and enforceability of the remaining
provisions shall not in any way be affected or impaired thereby.


 


13.12                     Counterpart
Originals.


 


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


 


13.13                     Table of Contents, Headings, etc.


 


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


 


[Signatures on following page]


 


77

















 


SIGNATURES


 


 


	
  Dated
  as of June    , 2004

  
	
   

  
	
   

  
	
   

  	
  ADESA,
  INC.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  BY:

  	
   

  	
   

  
	
   

  	
   

  	
  NAME:

  
	
   

  	
   

  	
  TITLE:

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  LASALLE
  BANK NATIONAL ASSOCIATION

  
	
   

  	
   

  	
  as
  Trustee

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  BY:

  	
   

  	
   

  
	
   

  	
   

  	
  NAME:

  
	
   

  	
   

  	
  TITLE:

  



 


S-1

















 


EXHIBIT A


 


[Face of Note]


 


CUSIP
No.


ISIN
No.


 


   % Senior Subordinated Notes due 2012


 


	
  No.

  	
   

  	
   

  	
  $

  



 


ADESA, INC.


 


promises
to pay
to                                                                                                                  or
registered assigns, the principal sum of                                                                                                     Dollars
on
                                  ,
2012.


 


Interest
Payment Dates: 
                            
and                              .


 


Record
Dates: 
                            
and                             .


 


	
   

  	
  ADESA,
  INC.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
   

  	
  Name:

  	
   

  
	
   

  	
   

  	
  Title:

  	
   

  
	
   

  	
   

  
	
  This
  is one of the Notes referred to in the within-mentioned Indenture:

  	
   

  
	
   

  	
   

  
	
  Dated:

  	
   

  	
  ,

  	
   

  	
   

  	
   

  
	
                                                                                      ,

  
	
  as Trustee

  
	
   

  
	
   

  
	
  By:

  	
   

  	
   

  
	
  Authorized
  Signatory

  
										



 


A-1

















 


[Back of Note]


 


    % Senior Subordinated Notes
due 2012


 


Insert the Global Note Legend, if applicable pursuant to the
provisions of the Indenture


 


Insert the Private Placement Legend, if applicable pursuant
to the provisions of the Indenture


 


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


 


1.                                       INTEREST. 
ADESA, Inc., a Delaware corporation (the “Company”), promises to pay interest on the principal amount
of this Note at       % per annum from
June      , 2004 until maturity.  The Company will pay interest semi-annually
in arrears on
                     
and
                     
of each year, or if any such day is not a Business Day, on the next succeeding
Business Day (each an “Interest Payment Date”).  Interest on the Notes will accrue from the
most recent date to which interest has been paid or, if no interest has been
paid, from the date of issuance; provided
that if there is no existing Default in the payment of interest, and if this
Note is authenticated between a record date referred to on the face hereof and
the next succeeding Interest Payment Date, interest shall accrue from such next
succeeding Interest Payment Date; provided,
further, that the first Interest Payment Date shall be
                 ,
2004.  The Company shall pay interest
(including post-petition interest in any proceeding under any Bankruptcy Law)
on overdue principal and premium, if any, from time to time on demand at a rate
that is 1% per annum in excess of the rate then in effect; it shall pay
interest (including post-petition interest in any proceeding under any
Bankruptcy Law) on overdue installments of interest (without regard to any
applicable grace periods) from time to time on demand at the same rate to the
extent lawful.  Interest will be
computed on the basis of a 360-day year of twelve 30-day months.


 


2.                                       METHOD OF PAYMENT.  The
Company will pay interest on the Notes (except defaulted interest) to the
Persons who are registered Holders of Notes at the close of business on the
                      or
                       
next preceding the Interest Payment Date, even if such Notes are canceled after
such record date and on or before such Interest Payment Date, except as
provided in Section 2.12 of the Indenture with respect to defaulted
interest.  The Notes will be payable as
to principal, premium and interest at the office or agency of the Company
maintained for such purpose within or without The City and State of New York,
or, at the option of the Company, payment of interest may be made by check
mailed to the Holders at their addresses set forth in the register of Holders,
and provided that payment by wire transfer of immediately available funds will
be required with respect to principal of and interest or premium on, all Global
Notes and all other Notes the Holders of which shall have provided wire
transfer instructions to the Company or the Paying Agent at least five Business
Days prior to the applicable payment date. 
Such payment shall be in such coin or currency of the United States of
America as at the time of payment is legal tender for payment of public and
private debts.


 


3.                                       AGENT AND REGISTRAR.  Initially,
                                                        ,
the Trustee under the Indenture, will act as Paying Agent and Registrar.  The Company may change any Paying Agent or
Registrar without notice to any Holder. 
The Company or any of its Subsidiaries may act in any such capacity.


 


4.                                       INDENTURE.  The
Company issued the Notes under an Indenture dated as of
June    , 2004 (“Indenture”)
between the Company, the Guarantors listed on the signature page therein (the “Guarantors”) and the Trustee.  The terms of the Notes include those stated
in the Indenture and those made part of the Indenture by reference to the Trust
Indenture Act of 1939, as amended (15 U.S. Code §§ 77aaa-77bbbb).  The Notes are subject


 


A-2

















 


to
all such terms, and Holders are referred to the Indenture and such Act for a
statement of such terms.  To the extent
any provision of this Note conflicts with the express provisions of the
Indenture, the provisions of the Indenture shall govern and be
controlling.  The Notes are obligations
of the Company limited to $125.0 million in aggregate principal amount.


 


5.                                       OPTIONAL REDEMPTION.


 


(a)                                  Except as set forth in clauses (b) and (c) of
this paragraph 5, the Company shall not have the option to redeem the Notes
pursuant to this paragraph 5 prior to
                        ,
2008.  Thereafter, the Company shall
have the option to redeem the Notes, in whole or in part, at the redemption
prices (expressed as percentages of principal amount) set forth below plus
accrued and unpaid interest thereon, if any, to the applicable redemption date,
if redeemed during the twelve-month period beginning on
[                     ]
of the years indicated below:


 


	
  Year

  	
   

  	
  Percentage

  	
   

  
	
  2008

  	
   

  	
              

  	
  %

  
	
  2009

  	
   

  	
              

  	
  %

  
	
  2010 and thereafter

  	
   

  	
  100.000

  	
  %

  



 


(b)                                 Notwithstanding the provisions of clause (a)
of this paragraph 5, at any time on or prior to
          , 2008, the
Company, at its option, may redeem Notes at a redemption price equal to the sum
of (i) the principal amount thereof, plus (ii) accrued and unpaid interest, if
any, to the redemption date, plus (iii) the Applicable Premium at the
redemption date.


 


“Applicable Premium” means with respect to
a Note at any time, the greater of (1) 1.0% of the principal amount of such
Note at such time and (2) the excess of (A) the present value at such time of
the principal amount of such Note plus any required premium and interest
payments due on such Note from the redemption date to
                    ,
2008, computed using a discount rate equal to the Treasury Rate plus 50 basis
points, over (B) the principal amount of such Note.


 


“Treasury Rate”  means the yield to maturity at the time of computation of
United States Treasury securities with a constant maturity (as compiled and
published in the most recent Federal Reserve Statistical Release H.15(519)
which has become publicly available at least two Business Days prior to the
date fixed for redemption or, in the case of defeasance, prior to the date of
deposit (or, if such Statistical Release is no longer published, any publicly
available source of similar market data)) most nearly equal to the then
remaining average life to
                        ,
2008 or, in the case of defeasance, to maturity; provided, however, that
if the average life to
                      ,
2008 or maturity, as the case may be, of the Notes is not equal to the constant
maturity of a United States Treasury security for which a weekly average yield
is given, the Treasury Rate shall be obtained by linear interpolation
(calculated to the nearest one-twelfth of a year) from the weekly average
yields of United  States Treasury
securities for which such yields are given, except that if the average life to                         , 2008 or maturity, as the case may be, of
the Notes is less than one year, the weekly average yield on actually traded
United States Treasury securities adjusted to a constant maturity of one year
shall be used.


 


(c)                                  At any time prior to
                    ,
2007, the Company may redeem at its option on any one or more occasions up to
35% of the aggregate principal amount of the Notes issued under this Indenture
with the net cash proceeds of one or more Qualified Equity Offerings at a
redemption price equal to      % of the principal
amount of the Notes to be redeemed, plus accrued and unpaid interest thereon,
if any, to but excluding the date of redemption; provided that (a) at least 65% of the aggregate principal
amount of Notes issued under this


 


A-3

















 


Indenture
remains outstanding immediately after the occurrence of such redemption and (b)
the redemption occurs within 90 days of the date of the closing of any such
Qualified Equity Offering.


 


6.                                       MANDATORY REDEMPTION.


 


The
Company shall not be required to make mandatory redemption or sinking fund
payments with respect to the Notes.


 


7.                                       NOTICE OF REDEMPTION. 
Notice of redemption will be mailed at least 30 days but not more than
60 days before the redemption date to each Holder whose Notes are to be
redeemed at its registered address. 
Notes in denominations larger than $1,000 may be redeemed in part but
only in whole multiples of $1,000, unless all of the Notes held by a Holder are
to be redeemed.  On and after the
redemption date interest ceases to accrue on Notes or portions thereof called
for redemption.


 


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


 


9.                                       PERSONS DEEMED OWNERS.  The
registered Holder of a Note may be treated as its owner for all purposes.


 


10.                                 AMENDMENT, SUPPLEMENT AND
WAIVER.  Subject to certain exceptions, the
Indenture, the Note Guarantees or the Notes may be amended or supplemented with
the consent of the Holders of at least a majority in principal amount of the
then outstanding Notes and Additional Notes, if any, voting as a single class,
and any existing default or compliance with any provision of the Indenture, the
Note Guarantees or the Notes may be waived with the consent of the Holders of a
majority in principal amount of the then outstanding Notes and Additional
Notes, if any, voting as a single class. 
Without the consent of any Holder of a Note, the Indenture, the Note
Guarantees or the Notes may be amended or supplemented to cure any ambiguity,
defect or inconsistency, to provide for uncertificated Notes in addition to or
in place of certificated Notes, to provide for the assumption of the Company’s
or Guarantor’s obligations to Holders of the Notes in case of a merger or
consolidation, to make any change that would provide any additional rights or
benefits to the Holders of the Notes or that does not adversely affect the
legal rights under the Indenture of any such Holder, to comply with the
requirements of the Securities and Exchange Commission in order to effect or
maintain the qualification of the Indenture under the Trust Indenture Act, to
provide for the issuance of Additional Notes in accordance with the limitations
set forth in the Indenture, or to allow any Guarantor to execute a supplemental
indenture to the Indenture and/or a Note Guarantee with respect to the Notes.


 


11.                                 DEFAULTS AND REMEDIES. 
Events of Default include:  (i)
default for 30 days in the payment when due of interest on the Notes; (ii)
default in payment when due of principal of or premium, if any, on the Notes
when the same becomes due and payable at maturity, upon redemption (including
in connection with an offer to purchase) upon acceleration or otherwise, (iii)
failure by the Company to comply with Section 4.15 or 5.01 of the
Indenture; (iv) failure by the Company for 60 days after notice to the Company
by the Trustee or the Holders of at least 25% in aggregate principal amount of
the Notes then outstanding voting as a single class to


 


A-4

















 


comply
with certain other agreements in the Indenture, or the Notes; (v) default under
certain other agreements relating to Indebtedness of the Company which default
results in the acceleration of such Indebtedness prior to its express maturity
or results in the commencement of judicial proceedings to foreclose or take
ownership of the assets securing such Indebtedness; (vi) certain final
judgments for the payment of money in excess of $25.0 million in the aggregate
that remain undischarged for a period of 60 days; (vii) certain events of
bankruptcy or insolvency with respect to the Company or any of its Significant
Subsidiaries; and (viii) any Note Guarantee shall be held in any judicial
proceeding to be unenforceable or invalid or shall cease for any reason to be
in full force and effect or any Guarantor shall deny or disaffirm its
obligations under such Guarantor’s Note Guarantee.  If any Event of Default occurs and is continuing, the Trustee or
the Holders of at least 25% in principal amount of the then outstanding Notes
may declare all the Notes to be due and payable.  Notwithstanding the foregoing, in the case of an Event of Default
arising from certain events of bankruptcy or insolvency, all outstanding Notes
will become due and payable without further action or notice.  Holders may not enforce the Indenture or the
Notes except as provided in the Indenture. 
Subject to certain limitations, Holders of a majority in principal
amount of the then outstanding Notes may direct the Trustee in its exercise of
any trust or power. The Trustee may withhold from Holders of the Notes notice
of any continuing Default or Event of Default (except a Default or Event of
Default relating to the payment of principal or interest) if it determines that
withholding notice is in their interest. 
The Holders of a majority in aggregate principal amount of the Notes
then outstanding by notice to the Trustee may on behalf of the Holders of all of
the Notes waive any existing Default or Event of Default and its consequences
under the Indenture except a continuing Default or Event of Default in the
payment of interest on, premium or the principal of, the Notes.  The Company is required to deliver to the
Trustee annually a statement regarding compliance with the Indenture, and the
Company is required upon becoming aware of any Default or Event of Default, to
deliver to the Trustee a statement specifying such Default or Event of Default.


 


12.                                 TRUSTEE DEALINGS WITH
COMPANY.  The Trustee, in its individual or any other
capacity, may make loans to, accept deposits from, and perform services for the
Company or its Affiliates, and may otherwise deal with the Company or its
Affiliates, as if it were not the Trustee.


 


13.                                 NO RECOURSE AGAINST OTHERS.  A
director, officer, employee, incorporator or stockholder, of the Company or any
Guarantor, as such, shall not have any liability for any obligations of the
Company or any Guarantor under the Notes, the Note Guarantees or the Indenture
or for any claim based on, in respect of, or by reason of, such obligations or
their creation.  Each Holder by
accepting a Note waives and releases all such liability.  The waiver and release are part of the
consideration for the issuance of the Notes.


 


14.                                 AUTHENTICATION. 
This Note shall not be valid until authenticated by the manual signature
of the Trustee or an authenticating agent.


 


15.                                 ABBREVIATIONS. 
Customary abbreviations may be used in the name of a Holder or an
assignee, such as:  TEN COM (= tenants
in common), TEN ENT (= tenants by the entireties), JT TEN (= joint tenants with
right of survivorship and not as tenants in common), CUST (= Custodian), and
U/G/M/A (= Uniform Gifts to Minors Act).


 


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


 


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


 


A-5

















 


ADESA,
Inc.


13085
Hamilton Crossing Boulevard


Carmel,
Indiana 46032


Attention: 
                              


 


A-6

















 


ASSIGNMENT FORM


 


To
assign this Note, fill in the form below:


 


	
  (I)
  or (we) assign and transfer this Note to:

  	
   

  
	
   

  	
  (Insert assignee’s legal name)

  
	
   

  
	
   

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

  
	
   

  
	
   

  
	
   

  
	
  (Print
  or type assignee’s name, address and zip code)

  
	
   

  
	
  and
  irrevocably appoint

  	
   

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

  
			



 


	
  Date:
  

  	
   

  	
   

  
	
   

  
	
   

  	
  Your
  Signature:

  	
   

  	
   

  
	
   

  	
  (Sign
  exactly as your name appears on the face of this Note)

  
	
   

  
	
   

  
	
  Signature
  Guarantee*:

  	
   

  	
   

  
								



 












*  Participant in a recognized Signature
Guarantee Medallion Program (or other signature guarantor acceptable to the
Trustee).


 


A-7

















 


OPTION OF HOLDER TO ELECT PURCHASE


 


If
you want to elect to have this Note purchased by the Company pursuant to
Section 4.10 or 4.15 of the Indenture, check the appropriate box below:


 




	
  o Section 4.10

  	
   

  	
  o Section 4.15

  






 


If
you want to elect to have only part of the Note purchased by the Company
pursuant to Section 4.10 or Section 4.15 of the Indenture, state the
amount you elect to have purchased:


 


	
  $                        

  



 


	
  Date:
  

  	
   

  	
   

  
	
   

  
	
   

  	
  Your
  Signature:

  	
   

  	
   

  
	
  (Sign exactly as your name appears on the face of this Note)

  
	
   

  
	
   

  
	
   

  	
  Tax Identification No.:

  	
   

  	
   

  
	
   

  
	
   

  
	
  Signature
  Guarantee*:

  	
   

  	
   

  
											



 












*  Participant in a recognized Signature
Guarantee Medallion Program (or other signature guarantor acceptable to the
Trustee).


 


A-8

















 


SCHEDULE OF EXCHANGES OF INTERESTS IN THE GLOBAL NOTE*


 


The
following exchanges of a part of this Global Note for an interest in another
Global Note or for a Definitive Note, or exchanges of a part of another Global
Note or Definitive Note for an interest in this Global Note, have been made:


 


	
  Date of Exchange

  	
   

  	
  Amount of
  de-

  crease in Principal

  Amount [at

  maturity] of this

  Global Note

  	
   

  	
  Amount of
  in-

  crease in Principal

  Amount [at

  maturity] of this

  Global Note

  	
   

  	
  Principal
  Amount

  [at maturity] of

  this Global Note

  following such

  decrease (or in-

  crease)

  	
   

  	
  Signature
  of

  authorized offi-

  cer of Trustee or

  Note Custodian

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  



 


 












*  This schedule should be included only
if the Note is issued in global form.


 


A-9

















 


EXHIBIT B


 


FORM OF SUPPLEMENTAL INDENTURE

TO BE DELIVERED BY FUTURE GUARANTORS


 


SUPPLEMENTAL
INDENTURE (this “Supplemental Indenture”),
dated as of
                               ,
among                                           
(the “Guaranteeing Subsidiary”),
a subsidiary of
                                   
(or its permitted successor), a [Delaware] corporation (the “Company”), the Company, the other
Guarantors (as defined in the Indenture referred to herein) and LaSalle Bank
National Association, as trustee under the indenture referred to below (the “Trustee”).


 


W I T N E S S E T H


 


WHEREAS,
the Company has heretofore executed and delivered to the Trustee an indenture
(the “Indenture”), dated as of
June [   ], 2004 providing for the issuance of an aggregate
principal amount of up to $125,000,000 of       %
Senior Subordinated Notes due 2012 (the “Notes”);


 


WHEREAS,
the Indenture provides that under certain circumstances the Guaranteeing
Subsidiary shall execute and deliver to the Trustee a supplemental indenture pursuant
to which the Guaranteeing Subsidiary shall unconditionally guarantee all of the
Company’s Obligations under the Notes and the Indenture on the terms and
conditions set forth herein (the “Note
Guarantee”); and


 


WHEREAS,
pursuant to Section 9.01 of the Indenture, the Trustee is authorized to
execute and deliver this Supplemental Indenture.


 


NOW
THEREFORE, in consideration of the foregoing and for other good and valuable
consideration, the receipt of which is hereby acknowledged, the Guaranteeing
Subsidiary and the Trustee mutually covenant and agree for the equal and
ratable benefit of the Holders of the Notes as follows:


 


CAPITALIZED
TERMS.  Capitalized terms used herein
without definition shall have the meanings assigned to them in the Indenture.


 


AGREEMENT
TO GUARANTEE.  The Guaranteeing
Subsidiary hereby agrees as follows:


 


(a)                                  To jointly and severally Guarantee to each
Holder of a Note authenticated and delivered by the Trustee and to the Trustee
and its successors and assigns, the Notes or the obligations of the Company
hereunder or thereunder, that:


 


(i)                                     the principal of and interest on the Notes
will be promptly paid in full when due, whether at maturity, by acceleration,
redemption or otherwise, and interest on the overdue principal of and interest
on the Notes, if any, if lawful, and all other obligations of the Company to
the Holders or the Trustee hereunder or thereunder will be promptly paid in
full or performed, all in accordance with the terms hereof and thereof; and


 


(ii)                                  in case of any extension of time of payment
or renewal of any Notes or any of such other obligations, that same will be
promptly paid in full when due or performed in accordance with the terms of the
extension or renewal, whether at stated maturity, by acceleration


 


B-1

















 


or otherwise.  Failing payment
when due of any amount so guaranteed or any performance so guaranteed for
whatever reason, the Guarantors shall be jointly and severally obligated to pay
the same immediately.


 


(b)                                 The obligations hereunder shall be
unconditional, irrespective of the validity, regularity or enforceability of
the Notes or the Indenture, the absence of any action to enforce the same, any
waiver or consent by any Holder of the Notes with respect to any provisions
hereof or thereof, the recovery of any judgment against the Company, any action
to enforce the same or any other circumstance which might otherwise constitute
a legal or equitable discharge or defense of a guarantor.


 


(c)                                  The following is hereby waived:  diligence, presentment, demand of payment,
filing of claims with a court in the event of insolvency or bankruptcy of the
Company, any right to require a proceeding first against the Company, protest,
notice and all demands whatsoever.


 


(d)                                 This Note Guarantee shall not be discharged
except by complete performance of the obligations contained in the Notes and
the Indenture, and the Guaranteeing Subsidiary accepts all obligations of a
Guarantor under the Indenture.


 


(e)                                  If any Holder or the Trustee is required by
any court or otherwise to return to the Company, the Guarantors, or any
Custodian, Trustee, liquidator or other similar official acting in relation to
either the Company or the Guarantors, any amount paid by either to the Trustee
or such Holder, this Note Guarantee, to the extent theretofore discharged,
shall be reinstated in full force and effect.


 


(f)                                    The Guaranteeing Subsidiary shall not be
entitled to any right of subrogation in relation to the Holders in respect of
any obligations guaranteed hereby until payment in full of all obligations
guaranteed hereby.


 


(g)                                 As between the Guarantors, on the one hand,
and the Holders and the Trustee, on the other hand, (x) the maturity of the
obligations guaranteed hereby may be accelerated as provided in Article 6
of the Indenture for the purposes of this Note Guarantee, notwithstanding any
stay, injunction or other prohibition preventing such acceleration in respect
of the obligations guaranteed hereby, and (y) in the event of any declaration of
acceleration of such obligations as provided in Article 6 of the
Indenture, such obligations (whether or not due and payable) shall forthwith
become due and payable by the Guarantors for the purpose of this Note
Guarantee.


 


(h)                                 The Guarantors shall have the right to seek
contribution from any non-paying Guarantor so long as the exercise of such
right does not impair the rights of the Holders under the Guarantee.


 


(i)                                     Pursuant to Section 11.03 of the
Indenture, after giving effect to any maximum amount and any other contingent
and fixed liabilities that are relevant under any applicable Bankruptcy or
fraudulent conveyance laws, and after giving effect to any collections from,
rights to receive contribution from or payments made by or on behalf of any
other Guarantor in respect of the obligations of such other Guarantor under
Article 11 of the Indenture, this new Note Guarantee shall be limited to
the maximum amount permissible such that the obligations of such Guarantor
under this Note Guarantee will not constitute a fraudulent transfer or
conveyance.


 


EXECUTION
AND DELIVERY.  Each Guaranteeing
Subsidiary agrees that the Note Guarantees shall remain in full force and
effect notwithstanding any failure to endorse on each Note a notation of such
Note Guarantee.


 


B-2

















 


GUARANTEEING
SUBSIDIARY MAY CONSOLIDATE, ETC. ON CERTAIN TERMS.


 


(j)                                     The Guaranteeing Subsidiary may not
consolidate with or merge with or into (whether or not such Guarantor is the
surviving Person) another corporation, Person or entity whether or not
affiliated with such Guarantor unless:


 


(1)                                  either:


 


(a)                                  such Guarantor will be the surviving or
continuing Person; or


 


(b)                                 the Person formed by or surviving any such
consolidation or merger is another Guarantor or assumes, by supplemental
indenture in form and substance reasonably satisfactory to the Trustee, all of
the obligations of such Guarantor under the Note Guarantee of such Guarantor
and this Indenture; and


 


(2)                                  immediately after giving effect to such
transaction, no Default shall have occurred and be continuing.


 


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


 


(k)                                  Upon any consolidation, combination or merger
of the Company or a Guarantor, or any transfer of all or substantially all of
the assets of the Company in accordance with the foregoing, in which the
Company or such Guarantor is not the continuing obligor under the Notes or its
Note Guarantee, the surviving entity formed by such consolidation or into which
the Company or such Guarantor is merged or the Person to which the conveyance,
lease or transfer is made will succeed to, and be substituted for, and may
exercise every right and power of, the Company or such Guarantor under this
Indenture, the Notes and the Note Guarantees with the same effect as if such
surviving entity had been named therein as the Company or such Guarantor and,
except in the case of a lease, the Company or such Guarantor, as the case may
be, will be released from the obligation to pay the principal of and interest
on the Notes or in respect of its Note Guarantee, as the case may be, and all
of the Company’s or such Guarantor’s other obligations and covenants under the
Notes, this Indenture and its Note Guarantee, if applicable.


 


(l)                                     Except as set forth in Articles 4 and 5 and
Section 11.05 of Article 11 of the Indenture, and notwithstanding
clauses (a) and (b) above, nothing contained in the Indenture or in any of the
Notes shall prevent any consolidation or merger of a Guarantor with or into the
Company or another Guarantor, or shall prevent any sale or conveyance of the
property of a Guarantor as an entirety or substantially as an entirety to the
Company or another Guarantor.


 


RELEASES.


 


(m)                               In the event of a sale or other disposition
of all of the assets of any Guarantor, by way of merger, consolidation or
otherwise, or a sale or other disposition of all to the capital stock of any
Guarantor, in each case to a Person that is not (either before or after giving
effect to such transaction) a Restricted Subsidiary of the Company, then such
Guarantor (in the event of a sale or other disposition, by way of merger,
consolidation or otherwise, of all of the capital stock of such Guarantor) or
the corporation acquiring the property (in the event of a sale or other
disposition of all or substantially all of the assets of such Guarantor) will
be released and


 


B-3

















 


relieved
of any obligations under its Note Guarantee; provided
that the net proceeds of such sale or other disposition are applied in
accordance with the applicable provisions of the Indenture, including without
limitation Section 4.10 of the Indenture. 
Upon delivery by the Company to the Trustee of an Officers’ Certificate
and an Opinion of Counsel to the effect that such sale or other disposition was
made by the Company in accordance with the provisions of the Indenture,
including without limitation Section 4.10 of the Indenture, the Trustee
shall execute any documents reasonably required in order to evidence the
release of any Guarantor from its obligations under its Note Guarantee.


 


(n)                                 Any Guarantor not released from its obligations
under its Note Guarantee shall remain liable for the full amount of principal
of and interest on the Notes and for the other obligations of any Guarantor
under the Indenture as provided in Article 11 of the Indenture.


 


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


 


NEW
YORK LAW TO GOVERN.  THIS SUPPLEMENTAL
INDENTURE WILL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE INTERNAL
LAWS OF THE STATE OF NEW YORK.


 


COUNTERPARTS  The parties may sign any number of copies of
this Supplemental Indenture.  Each
signed copy shall be an original, but all of them together represent the same
agreement.


 


EFFECT
OF HEADINGS.  The Section headings
herein are for convenience only and shall not affect the construction hereof.


 


THE
TRUSTEE.  The Trustee shall not be
responsible in any manner whatsoever for or in respect of the validity or
sufficiency of this Supplemental Indenture or for or in respect of the recitals
contained herein, all of which recitals are made solely by the Guaranteeing
Subsidiary and the Company.


 


IN
WITNESS WHEREOF, the parties hereto have caused this Supplemental Indenture to
be duly executed and attested, all as of the date first above written.


 


	
  Dated:
  

  	
   

  	
  ,

  	
   

  	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  [GUARANTEEING
  SUBSIDIARY]

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
   

  	
  Name:

  	
   

  
	
   

  	
   

  	
  Title:

  	
   

  



 


B-4

















 


	
   

  	
  ADESA,
  Inc.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
   

  	
  Name:

  	
   

  
	
   

  	
   

  	
  Title:

  	
   

  



 


B-5

















 


Schedule I


 


SCHEDULE OF GUARANTORS


 


The
following schedule lists each Guarantor under the Indenture as of the
Issue Date:


 


B-6