EX-4 5 ex4-3.txt EXHIBIT 4.3 RESOURCE AMERICA, INC. and each of the Guarantors named herein TO THE BANK OF NEW YORK, Trustee 12% SENIOR NOTES DUE AUGUST 1, 2008 -------------------------------------------------------------------------------- INDENTURE Dated as of April 10, 2003 -------------------------------------------------------------------------------- TABLE OF CONTENTS
ARTICLE ONE DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION.................................1 SECTION 1.1 Definitions.............................................................................1 SECTION 1.2 Compliance Certificates and Opinions...................................................22 SECTION 1.3 Form of Documents Delivered to Trustee.................................................23 SECTION 1.4 Acts of Holders; Record Dates..........................................................23 SECTION 1.5 Notices, Etc., to Trustee and Company..................................................25 SECTION 1.6 Notice to Holders; Waiver..............................................................26 SECTION 1.7 Conflict with Trust Indenture Act......................................................26 SECTION 1.8 Effect of Headings and Table of Contents...............................................26 SECTION 1.9 Successors and Assigns.................................................................26 SECTION 1.10 Separability Clause...................................................................26 SECTION 1.11 Benefits of Indenture.................................................................27 SECTION 1.12 Governing Law; Choice of Forum........................................................27 SECTION 1.13 Legal Holidays........................................................................28 ARTICLE TWO SENIOR NOTE FORMS......................................................................30 SECTION 2.1 Forms Generally........................................................................30 SECTION 2.2 Form of Face of Senior Note............................................................30 SECTION 2.3 Form of Reverse of Senior Note.........................................................34 SECTION 2.4 Form of Legend for Global Senior Notes.................................................36 SECTION 2.5 Legending of the Securities; Restrictions on Transfers.................................36 SECTION 2.6 Form of Trustee's Certificate of Authentication........................................37 SECTION 2.7 Form of Assignment and Election to Purchase............................................37 ARTICLE THREE THE SENIOR NOTES......................................................................39 SECTION 3.1 Global Senior Note; Depositary.........................................................39 SECTION 3.2 Reserved...............................................................................39 SECTION 3.3 Denominations..........................................................................39 SECTION 3.4 Execution, Authentication, Delivery and Dating.........................................39 SECTION 3.5 Temporary Senior Notes.................................................................40 SECTION 3.6 Registration; Registration of Transfer and Exchange....................................40 SECTION 3.7 Mutilated, Destroyed, Lost and Stolen Senior Notes.....................................42 SECTION 3.8 Payment of Interest; Interest Rights Preserved.........................................42 SECTION 3.9 Persons Deemed Owners..................................................................44 SECTION 3.10 Cancellation..........................................................................44 SECTION 3.11 Computation of Interest...............................................................45 SECTION 3.12 CUSIP Numbers.........................................................................45 ARTICLE FOUR BOOK-ENTRY PROVISIONS FOR GLOBAL SENIOR NOTES..........................................46 SECTION 4.1 Applicability of Article...............................................................46 SECTION 4.2 Book-Entry Provisions For Global Senior Note...........................................46 ARTICLE FIVE REMEDIES...............................................................................49 SECTION 5.1 Events of Default......................................................................49 SECTION 5.2 Acceleration of Maturity; Rescission and Annulment.....................................50
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SECTION 5.3 Collection of Indebtedness and Suits for Enforcement by Trustee........................51 SECTION 5.4 Trustee May File Proofs of Claim.......................................................52 SECTION 5.5 Trustee May Enforce Claims Without Possession of Senior Notes..........................52 SECTION 5.6 Application of Money Collected.........................................................52 SECTION 5.7 Limitation on Suits....................................................................53 SECTION 5.8 Unconditional Right of Holders to Receive Principal, Premium and Interest..............53 SECTION 5.9 Restoration of Rights and Remedies.....................................................54 SECTION 5.10 Rights and Remedies Cumulative........................................................54 SECTION 5.11 Delay or Omission Not Waiver..........................................................54 SECTION 5.12 Control by Holders....................................................................54 SECTION 5.13 Waiver of Past Defaults...............................................................55 SECTION 5.14 Undertaking for Costs.................................................................55 SECTION 5.15 Waiver of Usury, Stay or Extension Laws...............................................55 ARTICLE SIX THE TRUSTEE............................................................................57 SECTION 6.1 Certain Duties and Responsibilities....................................................57 SECTION 6.2 Notice of Defaults.....................................................................57 SECTION 6.3 Certain Rights of Trustee..............................................................58 SECTION 6.4 Not Responsible for Recitals or Issuance of Senior Notes...............................59 SECTION 6.5 May Hold Senior Notes..................................................................59 SECTION 6.6 Money Held in Trust....................................................................59 SECTION 6.7 Compensation and Reimbursement.........................................................59 SECTION 6.8 Disqualification; Conflicting Interests................................................60 SECTION 6.9 Corporate Trustee Required; Eligibility................................................61 SECTION 6.10 Resignation and Removal; Appointment of Successor.....................................61 SECTION 6.11 Acceptance of Appointment by Successor................................................62 SECTION 6.12 Merger, Conversion, Consolidation or Succession to Business...........................63 SECTION 6.13 Preferential Collection of Claims Against Company.....................................63 SECTION 6.14 Appointment of Authenticating Agent...................................................63 ARTICLE SEVEN HOLDERS' LISTS AND REPORTS BY TRUSTEE AND COMPANY.....................................66 SECTION 7.1 Company to Furnish Trustee Names and Addresses of Holders; Trustee to Furnish Senior Note Register................................................66 SECTION 7.2 Preservation of Information; Communications to Holders.................................66 SECTION 7.3 Reports by Trustee.....................................................................66 SECTION 7.4 Reports by Company.....................................................................67 ARTICLE EIGHT AMENDMENTS, SUPPLEMENTS AND WAIVERS...................................................68 SECTION 8.1 Supplemental Indentures Without Consent of Holders.....................................68 SECTION 8.2 Supplemental Indentures with Consent of Holders........................................68 SECTION 8.3 Execution of Supplemental Indentures...................................................70 SECTION 8.4 Effect of Supplemental Indentures......................................................70 SECTION 8.5 Conformity with Trust Indenture Act....................................................70 SECTION 8.6 Reference in Senior Notes to Supplemental Indentures...................................70 SECTION 8.7 Notice of Supplemental Indenture.......................................................71
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ARTICLE NINE COVENANTS..............................................................................72 SECTION 9.1 Payment of Principal, Premium and Interest.............................................72 SECTION 9.2 Maintenance of Office or Agency........................................................72 SECTION 9.3 Money for Senior Notes Payments to Be Held in Trust....................................72 SECTION 9.4 Statement by Officers as to Default....................................................73 SECTION 9.5 Payment of Taxes and Other Claims......................................................74 SECTION 9.6 Maintenance of Properties..............................................................74 SECTION 9.7 Corporate Existence; Keeping of Books..................................................75 SECTION 9.8 Insurance..............................................................................75 SECTION 9.9 Net Worth Maintenance..................................................................75 SECTION 9.10 Limitations on Indebtedness...........................................................76 SECTION 9.11 Reserved.............................................................................77 SECTION 9.12 Liquidity Maintenance.................................................................77 SECTION 9.13 Limitations on Restricted Payments....................................................78 SECTION 9.14 Limitations on Dividends and Other Payment Restrictions Affecting Subsidiaries........79 SECTION 9.15 Limitations on Transactions with Affiliates...........................................80 SECTION 9.16 Limitations on Liens and Guarantees...................................................81 SECTION 9.17 Offer to Purchase upon a Change of Control Event......................................81 SECTION 9.18 Payments for Consent..................................................................84 SECTION 9.19 Waiver of Certain Covenants...........................................................84 SECTION 9.20 Asset Sales...........................................................................84 SECTION 9.21 Additional Subsidiary Guarantees......................................................86 SECTION 9.22 Special Provisions regarding Atlas Pipeline Partners, L.P.............................86 ARTICLE TEN MERGER, CONSOLIDATION AND TRANSFER OF ASSETS...........................................87 SECTION 10.1 Merger, Consolidation or Transfer of Assets of the Company............................87 SECTION 10.2 Successor Substituted.................................................................87 SECTION 10.3 Senior Notes to Be Secured in Certain Events..........................................87 ARTICLE ELEVEN REDEMPTION OF SENIOR NOTES............................................................89 SECTION 11.1 Applicability of Article..............................................................89 SECTION 11.2 Optional Redemption...................................................................89 SECTION 11.3 Election to Redeem; Selection by Trustee of Senior Notes to Be Redeemed...............89 SECTION 11.4 Notice of Redemption..................................................................89 SECTION 11.5 Deposit of Redemption Price...........................................................90 SECTION 11.6 Senior Notes Payable on Redemption Date...............................................90 SECTION 11.7 Senior Notes Redeemed in Part.........................................................91 SECTION 11.8 Offer to Purchase by Application of Excess Proceeds...................................91 ARTICLE TWELVE DEFEASANCE AND COVENANT DEFEASANCE....................................................94 SECTION 12.1 Option to Effect Legal Defeasance or Covenant Defeasance..............................94 SECTION 12.2 Legal Defeasance and Discharge........................................................94 SECTION 12.3 Covenant Defeasance...................................................................94 SECTION 12.4 Conditions to Legal or Covenant Defeasance............................................95 SECTION 12.5 Deposited Money and U.S. Government Obligations To Be Held in Trust; Other Miscellaneous Provisions..............................................96
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SECTION 12.6 Reinstatement.........................................................................97 ARTICLE THIRTEEN NOTE GUARANTEES.......................................................................98 SECTION 13.1 Guarantee.............................................................................98 SECTION 13.2 Limitation on Guarantor Liability.....................................................99 SECTION 13.3 Execution and Delivery of Subsidiary Guarantee........................................99 SECTION 13.4 Guarantors May Consolidate, etc., on Certain Terms...................................101 ARTICLE FOURTEEN MISCELLANEOUS.......................................................................103 SECTION 14.1. No Recourse Against Others..........................................................103 SECTION 14.2. Execution in Counterparts...........................................................103
iv RECONCILIATION AND TIE BETWEEN TRUST INDENTURE ACT OF 1939 AND INDENTURE, DATED AS OF APRIL 10, 2003 Trust Indenture Act Section Indenture Section --------------------------- ------------------ 310(a)(1) 6.9 (a)(2) 6.9 (a)(3) Not Applicable (a)(4) Not Applicable (a)(5) 6.9 (b) 1.5, 6.8, 6.9, 6.10, 6.11 (c) Not Applicable 311(a) 6.13 (b) 6.13 (c) Not Applicable 312(a) 7.1, 7.2 (b) 7.2 (c) 7.2 313(a) 7.3 (b)(1) Not Applicable (b)(2) 7.3 (c) 1.6, 7.3 (d) 7.3 314(a) 1.6, 7.4, 9.4 (b) Not Applicable (c)(1) 1.2 (c)(2) 1.2 (c)(3) Not Applicable (d) Not Applicable (e) 1.2 (f) Not Applicable 315(a) 6.1 (b) 1.6, 6.2 (c) 6.1 (d) 6.1 (e) 5.14 316(a)(last sentence) 1.1 (definition of "Outstanding") (a)(1)(A) 5.12 (a)(1)(B) 5.13 (a)(2) Not Applicable (b) 5.7, 5.8 (c) 1.4 317(a)(1) 5.3 (a)(2) 5.4 (b) 6.6, 9.3 318(a) 1.7 (b) 6.6, 9.3 (c) 1.7 v INDENTURE, dated as of April 10, 2003 among RESOURCE AMERICA, INC., a corporation duly organized and existing under the laws of the State of Delaware (herein called the "Company"), having its principal office at 1845 Walnut Street, Philadelphia, Pennsylvania 19103, the Guarantors and THE BANK OF NEW YORK, a New York banking corporation, as Trustee (herein called the "Trustee"). NOW, THEREFORE, THIS INDENTURE WITNESSETH: For and in consideration of the premises and the purchase of the Senior Notes (as defined below) by the Holders thereof, it is mutually agreed, for the equal and proportionate benefit of all Holders of the Senior Notes, as follows: ARTICLE ONE DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION SECTION 1.1 Definitions. For all purposes of this Indenture, except as otherwise expressly provided or unless the context otherwise requires: (1) the terms defined in this Article have the meanings assigned to them in this Article and include the plural as well as the singular; (2) all other terms used herein which are defined in the Trust Indenture Act, either directly or by reference therein, have the meanings assigned to them therein; (3) all accounting terms not otherwise defined herein have the meanings assigned to them in accordance with GAAP; (4) the words "herein", "hereof" and "hereunder" and other words of similar import refer to this Indenture as a whole and not to any particular Article, Section or other subdivision; (5) the word "including" is not limiting; (6) references in this Indenture to any agreement, other document or law "as amended" or "as amended from time to time," or to "amendments" of any document or law, shall include any amendments, supplements, replacements, renewals or other modifications from time to time, provided in the case of modifications to documents, such modifications are permissible under this Indenture; and (7) references in this Indenture to any law include regulations promulgated thereunder from time to time. "Accredited Investor" means an accredited investor within the meaning of Rule 501(a) of Regulation D under the Securities Act. 1 "Acquired Indebtedness" means Indebtedness of a person (i) existing at the time such Person becomes a Subsidiary of or is merged with or into any other Person or (ii) assumed in connection with the acquisition of assets from such Person, in each case, other than Indebtedness incurred in connection with, or in contemplation of, such Person becoming a Subsidiary of such other Person or such acquisition. Acquired Indebtedness shall be deemed to be incurred on the date of the related acquisition of assets from such Person or the date such Person becomes a Subsidiary of or is merged with or into such other Person. "Act", when used with respect to any Holder, has the meaning specified in Section 1.4. "Additional Interest" means any Registration Penalty and the interest, if any, that shall accrue on any interest on the Senior Notes the payment of which has not been made on the applicable Interest Payment Date and which shall accrue at the rate per annum specified or determined as specified in such Senior Note. "Additional Notes" means additional Senior Notes (other than the Original Senior Notes) issued under this Indenture in accordance with Section 9.10 hereof as part of the same series as the Original Senior Notes. "Affiliate" means, with respect to any specified Person, any other Person directly or indirectly Controlling or Controlled by or under direct or indirect common Control with such specified Person and any legal or beneficial owner, directly or indirectly, of 20% or more of the Voting Stock of such specified Person. Notwithstanding the foregoing, no Securitization Entity shall be deemed an Affiliate of the Company. "Applicable Law" means all applicable provisions of all (i) constitutions, treaties, statutes, laws, rules, regulations and ordinances of any Governmental Authority, (ii) Governmental Approvals and (iii) orders, decisions, judgments, awards and decrees of any Governmental Authority. "Asset Sale" means (a) the sale, lease, conveyance or other disposition of any assets or rights; provided, however, that the sale, conveyance or other disposition of all or substantially all of the assets of the Company and its Subsidiaries taken as a whole will be governed by Section 9.17 hereof and/or by Section 10.1 hereof and not by the provisions of Section 9.20; and (b) the issuance or sale of Capital Stock in any of the Company's Subsidiaries. Notwithstanding the preceding, none of the following items shall be deemed to be an Asset Sale: (1) any single transaction or series of related transactions that involves assets having a Fair Market Value of less than $5.0 million; 2 (2) a transfer of assets between or among the Company and its Subsidiaries other than any of the Atlas Pipeline Entities; provided however, that it shall not be deemed an Asset Sale if the Company or any of its Subsidiaries acquires assets or Capital Stock of an Oil and Gas Business, and, within 6 months of such acquisition, sells all or a portion of such assets or Capital Stock to an Atlas Pipeline Entity; (3) an issuance of Capital Stock by a Subsidiary to the Company or to another Subsidiary; (4) the sale or lease of equipment, inventory and accounts receivable in the ordinary course of business; (5) the sale or other disposition of cash or cash equivalents; (6) a permitted Restricted Payment; (7) the sale or transfer (whether or not in the ordinary course of business) of oil and gas properties or direct or indirect interests in real property, provided, however, that at the time of such sale or transfer such properties do not have associated with them any proved reserves; (8) the abandonment, farm-out, lease or sublease of developed or undeveloped oil and gas properties in the ordinary course of business; (9) the trade or exchange by the Company or any Subsidiary of any oil and gas property owned or held by the Company or such Subsidiary for any oil and gas property owned or held by another Person; (10) the sale or transfer of hydrocarbons or other mineral products in the ordinary course of business; (11) sales of assets to a Securitization Entity for the Fair Market Value thereof, including cash in an amount at least equal to 75% of the book value thereof as determined in accordance with GAAP, it being understood that, for the purposes of this clause (11), notes received in exchange for the transfer of accounts receivable and related assets will be deemed cash if the Securitization Entity or other payor is required to repay said notes as soon as practicable from available cash collections less amounts required to be established as reserves pursuant to contractual agreements entered into as part of a the securitization transaction with entities that are not Affiliates of the Company; and 3 (12) transfers of assets (or a fractional undivided interest therein) by a Securitization Entity. "Asset Sale Offer" has the meaning specified in Section 11.8. "Atlas Pipeline Entities" means Atlas Pipeline Partners, L.P., a Delaware limited partnership, and its Subsidiaries and Atlas Pipeline Partners GP, LLC, a Delaware limited liability company. "Authenticating Agent" means any Person authorized by the Trustee pursuant to Section 6.14 to act on behalf of the Trustee to authenticate Senior Notes. "Authorized Officer" means any officer of the Company designated by a Board Resolution to take certain actions as specified in this Indenture. "Average Life to Stated Maturity" means, as of the date of determination with respect to any Indebtedness, the quotient obtained by dividing (i) the sum of the products of (a) the number of years from the date of determination to the date or dates of each successive scheduled principal payment of such Indebtedness multiplied by (b) the amount of each such principal payment by (ii) the sum of all such principal payments. "Board of Directors" means the board of directors or any duly authorized committee of that board. Unless otherwise indicated, "Board of Directors" means the Board of Directors of the Company. "Board Resolution" means a copy of a resolution certified by the Secretary or an Assistant Secretary of the Company to have been duly adopted by the Board of Directors of the Company, or by action of an Authorized Officer designated as such pursuant to a resolution of the Board of Directors of the Company, and to be in full force and effect on the date of such certification, and delivered to the Trustee. "Business Day" means each day which is not a Legal Holiday. "Capital Lease Obligation" of any Person means any obligations of such Person under any capital lease for real or personal property which, in accordance with GAAP, is required to be recorded as a capitalized lease obligation; and, for the purpose of this Indenture, the amount of such obligation at any date shall be the capitalized amount thereof at such date, determined in accordance with GAAP. "Capital Stock" in any Person means any and all shares, interests, rights to purchase, warrants, options, participations or other equivalents or interests in (however designated) capital stock in such Person, including, with respect to a corporation, common stock, Preferred Stock and other corporate stock and, with respect to a partnership, partnership interests, whether general or limited, and any rights (other than debt securities convertible into corporate stock, partnership interests or other capital stock), warrants or options exchangeable for or convertible into such corporate stock, partnership interests or other capital stock. "Change of Control Event" means an event or series of events by which 4 (a) any "person" or "group" (as such terms are used in Sections 13(d) and 14(d) of the Exchange Act), other than the Existing Management Group, is or becomes after the date of issuance of the Senior Notes the "beneficial owner" (as defined in Rules 13d-3 and 13d-5 under the Exchange Act as in effect on the date of the Indenture), of more than 40% of the total voting power of all Voting Stock of the Company then outstanding; (b) (1) another corporation merges into the Company or the Company consolidates with or merges into any other corporation, or (2) the Company conveys, transfers or leases all or substantially all its assets to any person or group in one transaction or a series of transactions other than any conveyance, transfer or lease between the Company and a Wholly-Owned Subsidiary of the Company, and in the case of each of clause (1) and clause (2), with the effect that a person or group, other than the Existing Management Group, is or becomes the beneficial owner of more than 40% of the total voting power of all Voting Stock of the surviving or transferee corporation of such transaction or series of transactions; (c) during any period of two consecutive years, individuals who at the beginning of such period constituted the Company's Board of Directors, or whose nomination for election by the Company's shareholders was approved by a vote of a majority of the directors 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 directors then in office; or (d) the shareholders of the Company shall approve any plan or proposal for the liquidation or dissolution of the Company. "Change of Control Purchase Date," "Change of Control Purchase Notice," "Change of Control Purchase Price" and "Change of Control Purchase Offer" are defined in Section 9.17. "Code" means the Internal Revenue Code of 1986, as amended. "Company" means the Person named as the "Company" in the first paragraph of this instrument until a successor Person shall have become such pursuant to the applicable provisions of this Indenture, and thereafter "Company" shall mean such successor Person. "Company Request" or "Company Order" means a written request or order signed in the name of the Company by its Chairman of the Board, its Vice Chairman of the Board or its President, and by its Chief Financial Officer, its Controller or an Assistant Controller, and delivered to the Trustee. 5 "Consolidated Depreciation and Amortization Expense" means with respect to any Person for any period, the total amount of depreciation and amortization expense of such Person for such period on a consolidated basis and otherwise determined in accordance with GAAP. "Consolidated EBITDA" means, with respect to any Person for any period, the Consolidated Net Income (Loss) of such Person for such period plus (a) provision for taxes based on income or profits of such Person for such period deducted in computing Consolidated Net Income (Loss) plus (b) Consolidated Interest Expense of such Person for such period, plus (c) Consolidated Depreciation and Amortization Expense of such Person for such period to the extent such depreciation and amortization were deducted in computing Consolidated Net Income (Loss), plus (d) without duplication, any other non-cash charges reducing Consolidated Net Income (Loss) of such Person for such period less (e) without duplication, non-cash items increasing Consolidated Net Income (Loss) of such Person for such period in each case, on a consolidated basis for such Person in accordance with GAAP. "Consolidated Interest Expense" means, with respect to any period, the sum of: (a) consolidated interest expense of such Person for such period, other than the interest expense on Permitted Acquisition Indebtedness, Permitted Repurchase Facilities and Indebtedness pursuant to that certain Credit Agreement, dated as of July 31, 2002, by and among Atlas America, Inc., Wachovia Bank, National Association, Union Bank of California, N.A. and the other parties thereto as amended, modified, supplemented, extended, restated, replaced, renewed or refinanced (the "Wachovia Facility"), whether paid or accrued (except to the extent accrued in a prior period), to the extent such expense was deducted in computing Consolidated Net Income (Loss) (including amortization of original issue discount, non-cash interest payments and the interest component of Capital Lease Obligations, excluding amortization of deferred financing fees) and (b) consolidated capitalized interest of such Person for such period, whether paid or accrued, to the extent such expense was deducted in computing Consolidated Net Income (Loss). "Consolidated Net Assets" of any Person as of any date means the total amount of assets of such Person and its Subsidiaries (less applicable reserves) on a consolidated basis at the end of the fiscal quarter immediately preceding such date for which financial information is available, as determined in accordance with GAAP. "Consolidated Net Income (Loss)" of any Person means, for any period, the consolidated net income (or loss) of such Person and its consolidated Subsidiaries for such period as determined in accordance with GAAP, adjusted, to the extent included in calculating such net income (loss), by excluding, without duplication, (i) the portion of net income (or loss) of any other Person (other than any of such Person's consolidated Subsidiaries) in which such Person or any of its Subsidiaries has an ownership interest, except to the extent of the amount of dividends or other distributions actually paid to such Person or its consolidated Subsidiaries in cash by such other Person during such period, (ii) net income (or loss) of any Person combined with such Person or any of its Subsidiaries on a "pooling of interests" basis attributable to any period prior to the date of combination, (iii) any gain or loss, net of taxes, realized upon the termination of any employee pension benefit plan and (iv) solely for the 6 purpose of determining Consolidated Net Income (Loss) in connection with the calculation of Restricted Payments permitted to be made hereunder, the net income of any consolidated Subsidiary of such Person to the extent that the declaration or payment of dividends or similar distributions by that Subsidiary of that income is not at the time permitted, directly or indirectly, by operation of the terms of its charter or any agreement, instrument, judgment, decree, order, statute, rule or governmental regulations applicable to that Subsidiary or its shareholders; provided that, upon the termination or expiration of such dividend or distribution restrictions, the portion of net income (or loss) of such consolidated Subsidiary allocable to such Person and previously excluded shall be added to the Consolidated Net Income (Loss) of such Person to the extent of the amount of dividends or other distributions available to be paid to such Person in cash by such Subsidiary. "Consolidated Net Worth" of any Person and its Subsidiaries mean as of the date of determination all amounts that would be included under stockholders' equity on a consolidated balance sheet of such Person and its Subsidiaries determined in accordance with GAAP. "Control" when used with respect to any specified Person means the power to direct the management and policies of such Person directly or indirectly, whether through ownership of voting securities (or pledge of voting securities if the pledgee thereof may on the date of determination exercise or control the exercise of the voting rights of the owner of such voting securities), by contract or otherwise; and the terms "to Control," "Controlling" and "Controlled" have meanings correlative to the foregoing. "Corporate Trust Office" means the office of the Trustee at which at any particular time its corporate trust business shall be principally administered, which office as of the date hereof is located at 101 Barclay Street, Floor 8 West, New York, New York 10286. "Covenant Defeasance" has the meaning specified in Section 12.3. "Credit Support" means credit support designed to enhance the likelihood of payment on securities issued in connection with a securitization of loans or other assets which are generally funded with the proceeds of such securitization, including without limitation subordination of certain classes of securities, insurance policies, representations and warranties, reserve funds, liquidity reserves, lost and missing note reserves and letters of credit. "Default" means an event or condition the occurrence of which would, with the lapse of time or the giving of notice or both, become an Event of Default. "Defaulted Interest" has the meaning specified in Section 3.8. "Depositary" has the meaning specified in Section 3.1. "Disqualified Capital Stock" means any Capital Stock which, by its terms (or by the terms of any security into which it is convertible or exchangeable), or upon the happening of any event, matures or is mandatorily redeemable, pursuant to a sinking fund obligation or otherwise, or redeemable at the option of the holder thereof, in whole or in part on, or prior to, or is 7 exchangeable for debt securities of the Company or its Subsidiaries prior to, the final Stated Maturity of principal of the Senior Notes; provided that only the amount of such Capital Stock that is redeemable prior to the Stated Maturity of principal of the Senior Notes shall be deemed to be Disqualified Capital Stock. "Disinterested Director" of any Person means, with respect to any transaction or series of related transactions, a member of the board of directors of such Person who does not have any material direct or indirect financial interest in or with respect to such transaction or series of related transactions. "Event of Default" has the meaning specified in Section 5.1. "Excess Proceeds" has the meaning specified in Section 9.20. "Exchange Act" means the Securities Exchange Act of 1934, as amended. "Exchange Offer" means any offer made pursuant to a Registration Rights Agreement to exchange Series B Senior Notes for Additional Notes that are Restricted Securities. "Existing Management Group" means a majority of the executive officers of the Company as of the date of the Indenture, members of their immediate families, certain trusts for their benefit and legal representatives of, or heirs, beneficiaries or legatees receiving Capital Stock (or securities convertible or exchangeable for Capital Stock) under any such person's estate. "Fair Market Value" means, with respect to any asset, the price which could be negotiated in an arm's-length free market transaction, for cash, between a willing seller and a willing buyer, neither of which is under compulsion to complete the transaction; provided, however, that the Fair Market Value of any asset or assets shall be determined by the Board of Directors of the Company, acting in good faith, and shall be evidenced by a Board Resolution. "Fixed Charges" means, with respect to any Person for any period, the sum of (i) Consolidated Interest Expense of such Person for such period, and (ii) the product of (A) all cash dividend payments on any series of Preferred Stock or Disqualified Capital Stock of such Person or its Subsidiaries for such period, and (B) a fraction, the numerator of which is one and the denominator of which is one minus the then-current combined federal, state and local statutory tax rate of such Person, expressed as a decimal, in each case on a consolidated basis and in accordance with GAAP. "GAAP" means generally accepted accounting principles in the United States as in effect on the date of computation. "Global Senior Note" means a Senior Note bearing the legend prescribed in Section 2.4 evidencing all or part of the Senior Notes, authenticated and delivered to the Depositary or its nominee, and registered in the name of such Depositary or nominee. "Global Senior Note Holder" has the meaning specified in Section 3.1. 8 "Governmental Approval" means an authorization, consent, approval, permit, license, registration or filing with any Governmental Authority. "Governmental Authority" with respect to any Person, means any nation (including an Indian nation), any state or other political subdivision thereof and any entity exercising executive, legislative, judicial, regulatory or administrative functions of or pertaining to government, including any government authority, agency, department, board, commission or instrumentality of the United States, any state of the United States or any political subdivision thereof, and any tribunal or arbitrator(s) of competent jurisdiction in each case, having jurisdiction or authority over such Person. "Guarantee" means any obligation, contingent or otherwise, of any Person directly or indirectly guaranteeing any Indebtedness or other obligation of any Person and any obligation, direct or indirect, contingent or otherwise, of such Person (i) to purchase or pay (or advance or supply funds for the purchase or payment of) such Indebtedness or other obligation of such Person (whether arising by virtue of partnership arrangements, or by agreements to purchase assets, goods, securities or services, to take-or-pay or to maintain financial statement conditions or otherwise) or (ii) entered into for the purpose of assuring in any other manner the obligee of such Indebtedness or other obligation of the payment thereof or to protect such obligee against loss in respect thereof (in whole or in part); provided, however, that the term "Guarantee" shall not include endorsements for collection or deposit in the ordinary course of business. The term "Guarantee" used as a verb has a corresponding meaning. "Guarantor" means each of: (a) the Company's existing Subsidiaries (other than the Atlas Pipeline Entities and Anthem Securities, Inc.); and (b) any other Subsidiary that executes a Subsidiary Guarantee in accordance with the provisions hereof; and their respective successors and assigns. "Guaranteed Indebtedness" of any Person means, without duplication, all Indebtedness of any other Person guaranteed directly or indirectly in any manner by such Person, or in effect guaranteed directly or indirectly by such person through an agreement (i) to pay or purchase such Indebtedness or to advance or supply funds for the payment or purchase of such Indebtedness, (ii) to purchase, sell or lease (as lessee or lessor) property, or to purchase or sell services, primarily for the purpose of enabling the debtor to make payment of such Indebtedness or to assure the holder of such Indebtedness against loss, (iii) to supply funds to, or in any other manner invest in, the debtor (including any agreement to pay for property or services without requiring that such property be received or such services be rendered), (iv) to maintain working capital or equity capital of the debtor, or otherwise to maintain the net worth, solvency or other financial condition of the debtor, or (v) otherwise to assure a creditor with respect to Indebtedness against loss; provided that the term shall not include endorsements for collection of deposit, in either case in the ordinary course of business. 9 "Hedging Obligations" of any Person means the obligations of such Person pursuant to any Interest Rate Agreement. "Holders" or "Senior Note Holders" means the Person in whose name a Senior Note is registered on the Registrar's books. "Incur" means issue, assume, Guarantee, incur or otherwise become liable for; provided, however, that any Indebtedness or Capital Stock of a Person existing at the time such Person becomes a Subsidiary (whether by merger, consolidation, acquisition or otherwise) shall be deemed to be Incurred by such Subsidiary at the time it becomes a Subsidiary. The term "Incurrence" when used as a noun shall have a correlative meaning. The accretion of principal of a non-interest bearing or other discount security shall be deemed the Incurrence of Indebtedness. "Indebtedness" means, with respect to any Person, without duplication, (i) all indebtedness of such Person for borrowed money or for the deferred purchase price of property or services, excluding any trade payables and other accrued current liabilities arising in the ordinary course of business, but including, without limitation, all obligations, contingent or otherwise, of such Person in connection with any letters of credit issued under letter of credit facilities, and in connection with any agreement by such Person to purchase, redeem, exchange, convert or otherwise acquire for value any Capital Stock of such Person now or hereafter outstanding, (ii) all obligations of such Person evidenced by bonds, notes, debentures or other similar instruments, (iii) all indebtedness of such Person created or arising under any conditional sale or other title retention agreement with respect to property acquired by such Person, but excluding trade payables arising in the ordinary course of business, (iv) all obligations under Interest Rate Agreements of such Person, (v) all Capital Lease Obligations of such Person, (vi) all Indebtedness referred to in clauses (i) through (v) above of other Persons and all dividends payable by other Persons, the payment of which is secured by (or for which the holder of such Indebtedness has an existing right, contingent or otherwise, to be secured by) any Lien, upon or with respect to property (including, without limitation, accounts and contract rights) owned by such Person, even though such Person has not assumed or become liable for the payment of such Indebtedness (the amount of such obligations being deemed to be the lesser of the value of such property or asset or the amount of the obligations so secured), (vii) all guarantees by such Person of Guaranteed Indebtedness, (viii) all Disqualified Capital Stock (valued at the greater of book value and voluntary or involuntary maximum fixed repurchase price plus accrued and unpaid dividends) of such Person, and (ix) any amendment, supplement, modification, deferral, renewal, extension, refunding or refinancing or any liability of the types referred to in clauses (i) through (viii) above. For purposes hereof, (x) the "maximum fixed repurchase price" of any Disqualified Stock which does not have a fixed repurchase price shall be calculated in accordance with the terms of such Disqualified Capital Stock as if such Disqualified Capital Stock were purchased on any date on which Indebtedness shall be required to be determined pursuant to the Indenture, and if such price is based upon, or measured by, the fair market value of such Disqualified Capital Stock, such fair market value is to be determined in good faith by the board of directors (or any duly authorized committee thereof) of the issuer of 10 such Disqualified Capital Stock, and (y) Indebtedness is deemed to be incurred pursuant to a revolving credit facility each time an advance is made thereunder. "Indenture" means this instrument as originally executed or as it may from time to time be supplemented or amended by one or more indentures supplemental hereto entered into pursuant to the applicable provisions hereof, including, for all purposes of this instrument, and any such supplemental indenture, the provisions of the Trust Indenture Act that are deemed to be a part of and govern this instrument and any such supplemental indenture, respectively. "Interest Payment Date" means the date on which any installment of interest (including any Additional Interest) on the Senior Notes becomes due and payable, as provided in Section 2.2. "Interest Rate Agreement" means any interest rate swap agreement, interest rate cap agreement, repurchase agreement, futures contract or other financial agreement or arrangement designed to protect the Company or any Subsidiary against fluctuations in interest rates. "Issue Date" means the date Original Senior Notes are first issued. "Junior Indebtedness" means any Indebtedness of the Company or any Guarantor subordinated in right of payment of either principal, premium (if any) or interest (including any Additional Interest) thereon to the Senior Notes or Subsidiary Guarantees. "Legal Defeasance" has the meaning specified in Section 12.2. "Legal Holiday" means any Saturday, Sunday or other day on which banks in the States of New York or Pennsylvania are authorized or obligated by law or executive order to be closed for business. "Leverage Ratio" as of any date of determination means the ratio of (i) the aggregate amount of all Indebtedness and Disqualified Capital Stock of the Company, excluding (A) Indebtedness and Guarantees thereof permitted to be incurred pursuant to Section 9.10 (e) (1) (other than Incurrence by the Company and its Subsidiaries of Indebtedness under the Wachovia Facility), (2), (3), (4), (6) and (7) hereof; (B) Hedging Obligations permitted to be incurred pursuant to Section 9.10 (e)(11) hereof; and (C) Junior Indebtedness of the Company to (ii) the Consolidated Net Worth of the Company. "Lien" means any mortgage, charge, pledge, lien (statutory or otherwise), security interest, hypothecation or other encumbrance upon or with respect to any property of any kind, real or personal, movable or immovable, now owned or hereafter acquired. "Liquid Assets" shall include: (i) cash; (ii) any of the following instruments that have a remaining term to maturity not in excess of 90 days from the determination date: (a) repurchase agreements on obligations of, or are guaranteed as to timely receipt of principal and interest by, the United States or any agency or instrumentality thereof when such obligations are backed by the full faith and credit of the United States provided that the party agreeing to repurchase such obligations is a primary dealer in U.S. government securities, 11 (b) federal funds and deposit accounts, including but not limited to certificates of deposit, time deposits and bankers' acceptances of any U.S. depository institution or trust company incorporated under the laws of the United States or any state, provided that the debt of such depository institution or trust company at the date of acquisition thereof has been rated by Standard & Poor's Corporation in the highest short-term rating category or has an equivalent rating from another nationally recognized rating agency, or (c) commercial paper of any corporation incorporated under the laws of the United States or any state thereof that on the date of acquisition is rated investment grade by Standard & Poor's Corporation or has an equivalent rating from another nationally recognized rating agency; (iii) any debt instrument which is an obligation of, or is guaranteed as to the receipt of principal and interest by the United States, its agencies or any U.S. government sponsored enterprise, or (iv) any mortgage-backed or mortgage-related security issued by the United States, its agencies, or any U.S. government sponsored enterprise which the payment of principal and interest from the mortgages underlying such securities will be passed through to the holder thereof and which such security has a remaining weighted average maturity of 15 years or less. Notwithstanding the foregoing, Liquid Assets shall not include any debt instruments, securities or collateralized mortgage obligations (real estate mortgage investment conduits) that would be classified as a "High-Risk Mortgage Security" pursuant to the policy statement adopted by the Federal Financial Institutions Examination Counsel on February 10, 1992, as reflected in Volume I of the Federal Reserve Report Service, Part 3-1562. "Maturity", when used with respect to any Senior Note, means the date on which the principal of such Senior Note or with respect to any installment of principal, when such installment of principal becomes due and payable as therein or herein provided, whether at the Stated Maturity or by declaration of acceleration, call for redemption, upon repurchase or otherwise. "Net Cash Proceeds" means, with respect to any issuance or sale of Capital Stock, or options, warrants or rights to purchase Capital Stock, or debt securities or Capital Stock that have been converted into or exchanged for Capital Stock, or any capital contribution in respect of Capital Stock, as referred to under Section 9.13 hereof, the proceeds of such issuance or sale or capital contribution in the form of cash or cash equivalents, including payments in respect of deferred payment obligations when received in the form of, or stock or other assets when disposed for, cash or cash equivalents (except to the extent that such obligations are financed or sold with recourse to the Company or any Subsidiary of the Company), net of attorney's fees, accountant's fees and brokerage, consulting, underwriting and other fees and expenses actually incurred in connection with such issuance or sale or capital contribution and net of taxes paid or payable by the Company as a result thereof. "Net Proceeds" means the aggregate cash proceeds received by the Company or any of its Subsidiaries (other than the Atlas Pipeline Entities) in respect of any Asset Sale (including, without limitation, any cash received upon the sale or other disposition of any non-cash consideration received in any Asset Sale), net of the direct costs relating to such Asset Sale, including legal, accounting and investment banking fees, and sales commissions, and any relocation expenses incurred as a result of the Asset Sale, taxes paid or 12 payable as a result of the Asset Sale, in each case after taking into account any available tax credits or deductions and any tax sharing arrangements, and amounts required to be applied to the repayment of Indebtedness secured by a Lien on the asset or assets that were the subject of such Asset Sale and any reserve for adjustment in respect of the sale price of such asset or assets established in accordance with GAAP for adjustment in respect of any liabilities associated with such asset or assets and retained by the Company after such sale or other disposition thereof, including, without limitation, pension and other post-employment benefit liabilities and liabilities related to environmental matters or against any indemnification obligations associated with such transaction. "Non-Recourse Indebtedness" means, with respect to any Person, Indebtedness of such Person for which (i) the sole recourse (excluding certain exceptions relating to fraud, intentional misrepresentation, proceeds of the assets, environmental liabilities and similar matters customary in non-recourse indebtedness) for collection of principal and interest on such Indebtedness is against the specific assets identified in the instruments evidencing or securing such Indebtedness, (ii) such assets were acquired with the proceeds of such Indebtedness or such Indebtedness was incurred concurrently with the acquisition of such assets; and (iii) no other assets (other than Credit Support) of such Person or of any other Person may be realized upon or in collection of principal or interest on such Indebtedness. "Offer Amount," "Offer Period" and "Purchase Date" are defined in Section 11.8. "Officers' Certificate" means a certificate signed by the Chairman of the Board, a Vice Chairman of the Board, the Chief Executive Officer or the President, and by the Chief Executive Officer, the President, the Chief Financial Officer, the Controller or an Assistant Controller, of the Company (provided that no one person signs twice on behalf of the Company), and delivered to the Trustee. One of the officers signing an Officers' Certificate given pursuant to Section 9.4 shall be the principal executive, financial or accounting officer of the Company. Unless otherwise indicted, "Officers' Certificate" means an Officers' Certificate of the Company. "Oil and Gas Business" means: (a) the acquisition, exploration, development, operation and disposition of interests in oil, gas and other hydrocarbon properties; (b) the gathering, marketing, treating, processing, storage, selling and transporting of any production from such interests or properties; (c) any business relating to exploration for or development, production, treatment, processing, storage, transportation or marketing of oil, gas and other minerals and products produced in association therewith and 13 (d) any activity that is ancillary to or necessary or appropriate for the activities described in clauses (a) through (c) of this definition. "Opinion of Counsel" means a written opinion of counsel, who may be counsel for the Company. "Original Senior Notes" means the 12% Senior Notes due August 1, 2008, as amended or supplemented from time to time in accordance with the terms hereof, issued under this Indenture on the Issue Date. "Outstanding", when used with respect to Senior Notes, means, as of the date of determination, all Senior Notes theretofore authenticated and delivered under this Indenture, except: (a) Senior Notes theretofore canceled by the Trustee or delivered to the Trustee for cancellation; (b) Senior Notes for whose payment or redemption money in the necessary amount has been theretofore deposited with the Trustee or any Paying Agent (other than the Company) in trust or set aside and segregated in trust by the Company (if the Company shall act as its own Paying Agent) for the Holders of such Senior Notes; provided that, if such Senior Notes are to be redeemed, notice of such redemption has been duly given pursuant to this Indenture or provision therefor satisfactory to the Trustee has been made; and (c) Senior Notes paid pursuant to Section 2.7 or in exchange for or in lieu of which other Senior Notes have been authenticated and delivered pursuant to this Indenture, other than any such Senior Notes in respect of which there shall have been presented to the Trustee proof satisfactory to it that such Senior Notes are held by a bona fide purchaser in whose hands such Senior Notes are valid obligations of the Company; provided, however, that in determining whether the Holders of the requisite principal amount of the Outstanding Senior Notes have given any request, demand, authorization, direction, notice, consent or waiver hereunder, Senior Notes owned by the Company or any other obligor on the Senior Notes or any Affiliate of the Company shall be disregarded and deemed not to be Outstanding, except that, in determining whether the Trustee shall be protected in relying upon any such request, demand, authorization, direction, notice, consent or waiver, only Senior Notes which a Responsible Officer of the Trustee actually knows to be so owned shall be so disregarded. Senior Notes so owned which have been pledged in good faith may be regarded as Outstanding if the pledgee establishes to the satisfaction of the Trustee the pledgee's right so to act with respect to such Senior Notes and that the pledgee is not the Company or any other obligor on the Senior Notes or any Affiliate of the Company. 14 "Pari Passu Indebtedness" means any Indebtedness of the Company that is pari passu in right of payment of principal, premium (if any) and interest (including any Additional Interest) thereon to the Senior Notes. "Paying Agent" means any Person authorized by the Company to pay the principal of (and premium, if any) or interest (including any Additional Interest) on any Notes on behalf of the Company or, if the Company is acting as its own Paying Agent, the Company. Initially, the Paying Agent shall be the Trustee. "Permitted Acquisition Indebtedness" means any secured funding arrangement with a financial institution or other lender to the extent (and only to the extent) funding thereunder is used exclusively to finance or refinance the purchase or origination of loans, real estate owned, equipment leases or other assets by the Company or a Subsidiary or to provide related financing subsequent to such purchase or origination. "Permitted Business" means the lines of business, including the Oil and Gas Business and the real estate, equipment leasing and proprietary asset management businesses, conducted by the Company and its Subsidiaries on the date hereof and any business similar, related, incidental or ancillary thereto or that constitutes a reasonable extension or expansion thereof. "Permitted Liens" means (i) Liens for taxes, assessments, governmental charges or claims that are being contested in good faith by appropriate legal proceedings instituted and diligently conducted and for which a reserve or other appropriate provision, if any, as shall be required in conformity with GAAP shall have been made; (ii) statutory Liens of landlords and carriers, warehousemen, mechanics, suppliers, materialmen, repairmen or other similar Liens imposed by law and arising in the ordinary course of business and with respect to amounts not yet delinquent or being contested in good faith by appropriate legal proceedings promptly instituted and diligently conducted and for which a reserve or other appropriate provision, if any, as shall be required in conformity with GAAP shall have been made; (iii) Liens incurred or deposits made in the ordinary course of business in connection with workers' compensation, unemployment insurance and other types of social security; (iv) Liens incurred or deposits made to secure the performance of tenders, bids, leases, statutory or regulatory obligations, surety and appeal bonds, progress payments, development obligations, government contracts, performance and return-of-money bonds and other obligations of a similar nature, in each case incurred in the ordinary course of business (exclusive of obligations for the payment of borrowed money or otherwise constituting a liability in accordance with GAAP); (v) with respect to property of the Company or any Subsidiary, Liens granted on such property or assets in favor of the Person from whom the Company or such Subsidiary acquired such property or assets, which Liens secure the payment of a contingent portion of the purchase price of such property, so long as such Liens are granted and such arrangement is entered into in the ordinary course of business of the Company; (vi) attachment or judgment Liens not giving rise to a Default or Event of Default and which are being contested in good faith by appropriate proceedings; (vii) easements, rights-of-way, restrictions, homeowners association assessments and similar charges or encumbrances that do not materially interfere with the ordinary course of business of the Company or any of its Subsidiaries; (viii) zoning restrictions, licenses, restrictions on 15 the use of real property or minor irregularities in title thereto, which do not materially impair the use of such property in the ordinary course of business of the Company or any Subsidiary or the value of such real property for the purpose of such business; (ix) Liens in favor of the Company or any Subsidiary; (x) Liens existing on the Issue Date; (xi) Liens securing Non-Recourse Indebtedness of the Company or a Subsidiary thereof, (xii) Liens with respect to the property or assets of the Company or a Subsidiary securing Indebtedness permitted to be incurred pursuant to Section 9.10(e)(1), (2), (3), (4), (6) and (7) or Section 9.22 hereof; (xiii) Liens granted after the Issue Date on any assets or Capital Stock of the Company or its Subsidiaries created in favor of the Holders; (xiv) Liens with respect to the property or assets of a Subsidiary granted by such Subsidiary to the Company to secure Indebtedness owing to the Company; (xv) Liens securing Indebtedness which is incurred to refinance Permitted Indebtedness, provided that such Liens constitute Permitted Liens under this clause (xv) only to the extent that they do not extend to or cover any property or assets of the Company or any Subsidiary other than the property or assets securing the Indebtedness being refinanced; (xvi) leases or subleases granted to others not materially interfering with the ordinary course of business of the Company or any of its Subsidiaries; (xvii) other Liens securing obligations not exceeding $1,000,000 in the aggregate; and (xviii) Liens securing Hedging Obligations of the Company or such Subsidiary so long as such Hedging Obligations relate to Indebtedness that is, and is permitted under this Indenture to be, secured by a Lien on the same property securing such Hedging Obligations. "Permitted Payment" means, so long as no Default or Event of Default is continuing, (a) the purchase, redemption, defeasance or other acquisition or retirement for value of any Capital Stock of the Company or any Affiliate (other than a Wholly-Owned Subsidiary) of the Company, Junior Indebtedness or Pari Passu Indebtedness in exchange for (including any such exchange pursuant to the exercise of a conversion right or privilege where, in connection therewith, cash is paid in lieu of the issuance of fractional shares or scrip), or out of the Net Cash Proceeds or Fair Market Value of property not constituting Net Cash Proceeds of a substantially concurrent issue and sale (other than to a Subsidiary of the Company or to an employee benefit plan of the Company or any of its Subsidiaries) of Qualified Capital Stock of the Company; provided that the Net Cash Proceeds or Fair Market Value of such property received by the Company from the issuance of such shares of Qualified Capital Stock, to the extent so utilized, shall be excluded from clause (c)(iii) of Section 9.13 hereof; and (b) the repurchase, redemption, defeasance or other acquisition or retirement for value of any Junior Indebtedness or Pari Passu Indebtedness in exchange for, or out of the Net Cash Proceeds of, a substantially concurrent issue and sale (other than to a Subsidiary of the Company) of new Indebtedness by the Company or any of the Guarantors (such a 16 transaction, a "refinancing"); provided, that any such new Indebtedness of the Company or any of the Guarantors (i) shall be in a principal amount that does not exceed an amount equal to the sum of (A) the principal amount of the Indebtedness so refinanced and accrued but unpaid interest thereon less any discount from the face amount of such Indebtedness to be refinanced expected to be deducted from the amount payable to the holders of such Indebtedness in connection with such refinancing, (B) the amount of any premium expected to be paid in connection with such refinancing pursuant to the terms of the Junior Indebtedness or Pari Passu Indebtedness refinanced or the amount of any premium reasonably determined by the Company or such Guarantor as necessary to accomplish such refinancing by means of a tender offer, privately negotiated repurchase or otherwise and (C) the amount of legal, accounting, printing and other similar expenses of the Company incurred in connection with such refinancing; provided, further, that for purposes of this clause (i), the principal amount of any Indebtedness shall be deemed to mean the principal amount thereof or, if such Indebtedness provides for an amount less than the principal amount thereof to be due and payable upon a declaration of acceleration thereof, such lesser amount as of the date of determination; (ii) (A) if such refinanced Indebtedness has an Average Life to Stated Maturity shorter than that of the Senior Notes or a final Stated Maturity earlier than the final Stated Maturity of the Senior Notes, such new Indebtedness shall have an Average Life to Stated Maturity no shorter than the Average Life to Stated Maturity of such refinanced Indebtedness and a final Stated Maturity no earlier than the final Stated Maturity of such refinanced Indebtedness or (B) in all other cases each Stated Maturity of principal (or any required repurchase, redemption, defeasance or sinking fund payments) of such new Indebtedness shall be after the final Stated Maturity of principal of the Senior Notes; and (iii) is (A) made expressly subordinated to or pari passu with the Senior Notes to substantially the same extent as the Indebtedness being refinanced or (B) expressly subordinate to such refinanced Indebtedness. "Permitted Repurchase Facilities" includes purchase and sale facilities pursuant to which the Company or a Subsidiary sells loans, real estate owned or other financial assets to a financial institution or other entity and agrees to repurchase such loans, real estate owned or financial assets. "Person" means any individual, corporation, limited liability company, partnership, joint venture, association, joint-stock company, trust, unincorporated organization or government or any agency or political subdivisions thereof. 17 "Place of Payment" means the principal office of the Company in Philadelphia, Pennsylvania, or the office of the Paying Agent as may be established by the Company and the Trustee. "Predecessor Senior Note" of any particular Senior Note means every previous Senior Note evidencing all or a portion of the same debt as that evidenced by such particular Senior Note; and, for the purposes of this definition, any Senior Note authenticated and delivered under Section 3.7 in exchange for or in lieu of a mutilated, destroyed, lost or stolen Senior Note shall be deemed to evidence the same debt as the mutilated, destroyed, lost or stolen Senior Note. "Preferred Stock" means, with respect to any Person, any Capital Stock of any class or classes (however designated) which is preferred as to the payment of dividends or distributions, or as to the distribution of assets upon any voluntary liquidation or dissolution of such Person, over Capital Stock of any other class in such Person. "Qualified Capital Stock" of any Person means any and all Capital Stock of such Person other than Disqualified Capital Stock. "Redemption Date", when used with respect to any Senior Note to be redeemed, means the date fixed for such redemption by or pursuant to this Indenture. "Redemption Price", when used with respect to any Senior Note to be redeemed, means the price at which it is to be redeemed pursuant to this Indenture. "Reference Period" with regard to any Person means the four full fiscal quarters of such Person ended on or immediately preceding any date upon which any determination is to be made pursuant to the terms of the Senior Notes or this Indenture for which financial information is available. "Registrar" means the Trustee or its nominee. "Registration Penalty" has the meaning set forth in the Registration Rights Agreement. "Registration Rights Agreement" means one or more Registration Rights Agreements among the Company, the Guarantors and the other parties thereto, as such may be amended or modified from time to time, relating to rights given by the Company to the purchasers of Additional Notes that are Restricted Securities to register such Senior Notes under the Securities Act. "Regular Record Date" for the interest (including any Additional Interest) payable on any Interest Payment Date on the Senior Notes means January 15 or July 15 (whether or not a Business Day), as the case may be, next preceding such Interest Payment Date. "Responsible Officer", when used with respect to the Trustee, shall mean any officer within the corporate trust department (or any successor group of the Trustee) including any vice president, assistant vice president, assistant treasurer or any other officer or assistant officer of the Trustee customarily performing functions similar to those performed by the persons who 18 at the time shall be such officers, respectively, or to whom any corporate trust matter is referred at the Trustee's Corporate Trust Office because of his knowledge of and familiarity with the particular subject. "Restricted Payment" means (a) the declaration, payment or setting apart of any funds for the payment of any dividend on, or making of any distribution to holders of, the Capital Stock of the Company or any Subsidiary of the Company (other than (i) dividends or distributions in Qualified Capital Stock of the Company and (ii) dividends or distributions payable on or in respect of any class or series of Capital Stock of a Subsidiary of the Company as long as the Company receives at least its pro rata share of such dividends or distributions in accordance with its ownership interests in such class or series of Capital Stock); (b) the purchase, redemption or other acquisition or retirement for value, directly or indirectly, of any Capital Stock of the Company or any Affiliate of the Company (other than a Wholly-Owned Subsidiary, and other than the purchase from a non-Affiliate of the Company of Capital Stock of any joint venture or other Person which is an Affiliate of the Company solely because of the Company's direct or indirect ownership of 20% or more of the Voting Stock of such joint venture or other Person), except such as shall constitute a Permitted Payment; or (c) the making of any principal payments on, or repurchase, redemption, defeasance, retirement or other acquisition for value, directly or indirectly, of any Junior Indebtedness or Pari Passu Indebtedness, prior to any Stated Maturity of principal or scheduled redemption or defeasance of, or any scheduled sinking fund payment on, such Junior Indebtedness or Pari Passu Indebtedness, except such as shall constitute a Permitted Payment or as permitted by Section 9.20. "Restricted Security" means a Security, unless or until it has been (i) effectively registered under the Securities Act and disposed of in accordance with the registration statement covering it or (ii) distributed to the public pursuant to Rule 144 (or any similar provision then in force) under the Securities Act; provided that in no case shall a Series B Senior Note issued in accordance with this Indenture and the terms and provisions of the Registration Rights Agreement be a Restricted Security. "SEC" means the Securities and Exchange Commission. "Securities" or "Senior Notes" means, the Original Senior Notes, the Series B Senior Notes and the Additional Notes, in each case as amended or modified from time to time in accordance with the terms hereof, issued under this Indenture. The Original Senior Notes and the Additional Notes shall be 19 treated as a single class for all purposes under this Indenture, and unless the context otherwise requires, all references to the "Securities" or "Senior Notes" shall include the Original Senior Notes and any Additional Notes. "Securities Act" means the Securities Act of 1933, as amended. "Securitization Entity" means any pooling arrangement or entity formed or originated for the purpose of holding, and/or issuing securities representing interests in, one or more pools of mortgages, leases, credit card receivables, home equity loan receivables, automobile loans, leases or installment sales contracts, other consumer receivables, real estate owned or other financial assets of the Company or any Subsidiary, and shall include, without limitation, any partnership, limited liability company, liquidating trust, grantor trust, owner trust, real estate mortgage investment conduit, real estate investment trust or collateralized bond obligation. "Senior Note Register" has the meaning specified in Section 3.6. "Senior Notes": (See "Securities"). "Series B Senior Notes" means the Series B 12% Senior Notes due 2008 which may be issued pursuant to this Indenture in connection with any offer made by the Company pursuant to a Registration Rights Agreement to exchange Series B Senior Notes for Additional Notes that are Restricted Securities. "Significant Subsidiary" means any Subsidiary of the Company which accounted for 5% or more of the Consolidated Net Assets of the Company and its Subsidiaries as of the end of the fiscal quarter preceding the date of determination for which financial information is available or Consolidated EBITDA of the Company and its Subsidiaries for the Reference Period. "Special Record Date" for the payment of any Defaulted Interest means a date fixed by the Trustee pursuant to Section 3.8. "Stated Maturity" when used with respect to any Indebtedness (including, without limitation, the Senior Notes) means the dates specified in the instrument governing such Indebtedness as the fixed dates on which any principal amount of such Indebtedness is due and payable (including, without limitation, by reason of any required redemption, purchase, defeasance or sinking fund payment) and, when used with respect to any installment of interest on Indebtedness, means the date on which such installment is due and payable. "Subsidiary" means, with respect to any Person, any corporation of which more than 50% of the voting power of Voting Stock thereof, and any partnership, association or other business entity of which more than 50% of the Capital Stock, is 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. 20 "Subsidiary Guarantee" means the Guarantee by each Guarantor of the Company's payment obligations under this Indenture and the Senior Notes, executed pursuant to the provisions of this Indenture. "Successor Company" has the meaning specified in Section 10.1. "Trustee" means the Person named as the "Trustee" in the first paragraph of this instrument until a successor Trustee shall have become such pursuant to the applicable provisions of this Indenture, and thereafter "Trustee" shall mean or include each Person who is then a Trustee hereunder, and if at any time there is more than one such Person, "Trustee" as used with respect to the Senior Notes shall mean the Trustee with respect to the Senior Notes. "Trust Indenture Act" means the Trust Indenture Act of 1939 as in force at the date as of which this instrument was executed; provided, however, that in the event the Trust Indenture Act of 1939 is amended after such date, "Trust Indenture Act" means, to the extent required by any such amendment, the Trust Indenture Act of 1939 as so amended. "Unsecured Debt Coverage Ratio" means, with respect to any Person for any period, the ratio of Consolidated EBITDA of such Person for such period to the Fixed Charges of such Person for such period. In the event that the Company incurs, assumes, guarantees or redeems any Indebtedness (including any Indebtedness which constitutes Acquired Indebtedness) subsequent to the commencement of the period for which the Unsecured Debt Coverage Ratio is being calculated but prior to the event for which the calculation of the Unsecured Debt Coverage Ratio is made (the "Calculation Date"), then the Unsecured Debt Coverage Ratio shall be calculated giving pro forma effect to such incurrence, assumption, guarantee or redemption of Indebtedness, as if the same had occurred at the beginning of the applicable four-quarter period, including an assumption of investment returns at the rate equal to the higher of the six-month Treasury bill rate or six-month LIBOR at the beginning of such four-quarter period. For purposes of making the computation referred to above, investments in the equity of, or other acquisitions or dispositions, which constitute all or substantially all of an operating unit of a business and discontinued operations (as determined in accordance with GAAP) that have been made by the Company or any of its Subsidiaries, including all mergers, consolidations and dispositions, during the four-quarter reference period or subsequent to such reference period and on or prior to the Calculation Date shall be calculated on a pro forma basis assuming that all such investments, acquisitions, dispositions, discontinued operations, mergers and consolidations (and the reduction of any associated fixed charge obligations and the change in Consolidated EBITDA resulting therefrom) had occurred on the first day of the four-quarter period. If since the beginning of such period any Person (that subsequently became a Subsidiary or was merged with or into the Company or any Subsidiary since the beginning of such period) shall have made any investment in the equity of, or other acquisition or disposition, which constitutes all or substantially all of an operating unit of a business, discontinued operation, merger or consolidation 21 that would have required adjustment pursuant to this definition, then the Unsecured Debt Coverage Ratio shall be calculated giving pro forma effect thereto for such period as if such investment, acquisition, disposition, discontinued operation, merger or consolidation had occurred at the beginning of the applicable four-quarter period. For purposes of this definition, whenever pro forma effect is to be given to a transaction, the pro forma calculations shall be made in good faith by a responsible financial or accounting officer of the Company. If any Indebtedness bears a floating rate of interest and is being given pro forma effect, the interest on such Indebtedness shall be calculated as if the rate in effect on the Calculation Date had been the applicable rate for the entire period. Interest on a Capital Lease Obligation shall be deemed to accrue at an interest rate reasonably determined by a responsible financial or accounting officer of the Company to be the rate of interest implicit in such Capital Lease Obligation in accordance with GAAP. Interest on Indebtedness that may optionally be determined at an interest rate based upon a factor of a prime or similar rate, a reoccurrence interbank offered rate, or other rate, shall be deemed to have been based upon the rate actually chosen, or, if none, then based upon such optional rate chosen as the Company may designate. "U.S. Government Obligations" means direct obligations (or certificates representing an ownership interest in such obligations) of the United States of America (including any agency or instrumentality thereof) for the payment of which the full faith and credit of the United States of America is pledged and which are not callable at the issuer's option. "Vice President", when used with respect to the Company or the Trustee, means any vice president (but shall not include any assistant vice president), whether or not designated by a number or a word or words added before or after the title "vice president". "Voting Stock" means Capital Stock of the class or classes of which the holders have (i) in respect of a corporation, the general voting power under ordinary circumstances to elect at least a majority of the board of directors, managers or trustees of such corporation (irrespective of whether or not at the time Capital Stock of any other class or classes shall have or might have voting power by reason of the happening of any contingency) or (ii) in respect of a partnership, the general voting power under ordinary circumstances to elect the board of directors or other governing board of such partnership or of the Person which is a general partner of such partnership. "Wachovia Facility": (See "Consolidated Interest Expense"). "Wholly-Owned Subsidiary" means a Subsidiary all of the Capital Stock of which (other than directors' qualifying shares) is owned by the Company or another Wholly-Owned Subsidiary. SECTION 1.2 Compliance Certificates and Opinions. Upon any application or request by the Company to the Trustee to take any action under any provision of this Indenture, the Company shall furnish to the Trustee such certificates and opinions as may be required under the Trust Indenture Act. Each such certificate or opinion shall be given in the form of an Officers' Certificate, if to be given by officers of the Company, or an Opinion 22 of Counsel, if to be given by counsel, and shall comply with the requirements of the Trust Indenture Act and any other requirements set forth in this Indenture. Every certificate or opinion (other than the Officers' Certificate delivered under Section 9.4 hereof) with respect to compliance with a condition or covenant provided for in this Indenture shall include: (1) a statement that each individual signing such certificate or opinion has read such covenant or condition and the definitions herein relating thereto; (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 each such individual, he has made such examination or investigation as is necessary to enable him to express an informed opinion as to whether or not such covenant or condition has been complied with; and (4) a statement as to whether, in the opinion of each such individual, such condition or covenant has been complied with. SECTION 1.3 Form of Documents Delivered to Trustee. In any case where several matters are required to be certified by, or covered by an opinion of, any specified Person, it is not necessary that all such matters be certified by, or covered by the opinion of, only one such Person, or that they be so certified or covered by only one document, but one such Person may certify or give an opinion with respect to some matters and one or more other such Persons as to other matters, and any such Person may certify or give an opinion as to such matters in one or several documents. Any certificate or opinion of an officer of the Company may be based, insofar as it relates to legal matters, upon a certificate or opinion of, or representations by, counsel, unless such officer knows, or in the exercise of reasonable care should know, that the certificate or opinion or representations with respect to the matters upon which his certificate or opinion is based are erroneous. Any such certificate or opinion of counsel may be based, insofar as it relates to factual matters, upon a certificate or opinion of, or representations by, an officer or officers of the Company stating that the information with respect to such factual matters is in the possession of the Company, unless such counsel knows, or in the exercise of reasonable care should know, that the certificate or opinion or representations with respect to such matters are erroneous. Where any Person is required to make, give or execute two or more applications, requests, consents, certificates, statements, opinions or other instruments under this Indenture, they may, but need not, be consolidated and form one instrument. SECTION 1.4 Acts of Holders; Record Dates. 23 (a) Any request, demand, authorization, direction, notice, consent, waiver or other action provided by this Indenture to be given or taken by Holders may be embodied in and evidenced by one or more instruments of substantially similar tenor signed by such Holders in person or by agent duly appointed in writing; and, except as herein otherwise expressly provided, such action shall become effective upon action by the requisite percentage of Holders when such instrument or instruments are delivered to the Trustee and, where it is hereby expressly required, to the Company. Such instrument or instruments (and the action embodied therein and evidenced thereby) are herein sometimes referred to as the "Act" of the Holders signing such instrument or instruments. Proof of execution of any such instrument or of a writing appointing any such agent shall be sufficient for any purpose of this Indenture and (subject to Section 6.1) conclusive in favor of the Trustee and the Company, if made in the manner provided in this Section. Without limiting the generality of the foregoing, a Holder, including a Depositary that is a Holder of a Global Senior Note, may make, give or take, by a proxy, or proxies, duly appointed in writing, any request, demand, authorization, direction, notice, consent, waiver or other action provided or permitted in this Indenture to be made, given or taken by Holders, and a Depositary that is a Holder of a Global Senior Note may provide its proxy or proxies to the beneficial owners of interest in any such Global Senior Note. (b) The fact and date of the execution by any Person of any such instrument or writing may be proved by the affidavit of a witness of such execution or by a certificate of a notary public or other officer authorized by law to take acknowledgments of deeds, certifying that the individual signing such instrument or writing acknowledged to him the execution thereof. Where such execution is by a signer acting in a capacity other than his individual capacity, such certificate or affidavit shall also constitute sufficient proof of his authority. The fact and date of the execution of any such instrument or writing, or the authority of the Person executing the same, may also be proved in any other manner which the Trustee deems sufficient. (c) The Company may, in the circumstances permitted by the Trust Indenture Act, fix any day as the record date for the purpose of determining the Holders of Senior Notes entitled to give or take any request, demand, authorization, direction, notice, consent, waiver or other action, or to vote on any action, authorized or permitted to be given or taken by Holders of Senior Notes. If not set by the Company 24 prior to the first solicitation of a Holder of Senior Notes made by any Person in respect of any such action, or, in the case of any such vote, prior to such vote, the record date for any such action or vote shall be the 30th day (or, if later, the date of the most recent list of Holders required to be provided pursuant to Section 7.1) prior to such first solicitation or vote, as the case may be. With regard to any record date for action to be taken by the Holders Senior Notes, only the Holders of Senior Notes on such date (or their duly designated proxies) shall be entitled to give or take, or vote on, the relevant action. (d) The ownership of Senior Notes shall be proved by the Senior Note Register. (e) Any request, demand, authorization, direction, notice, consent, waiver or other Act of the Holder of any Senior Note shall bind every future Holder of the same Senior Note and the Holder of every Senior Note issued upon the registration of transfer thereof or in exchange therefor or in lieu thereof in respect of anything done, omitted or suffered to be done by the Trustee or the Company in reliance thereon, whether or not notation of such action is made upon such Senior Note. (f) Without limiting the foregoing, a Holder entitled hereunder to give or take any action hereunder with regard to any particular Senior Note may do so with regard to all or any part of the principal amount of such Senior Note or by one or more duly appointed agents each of which may do so pursuant to such appointment with regard to all or any different part of such principal amount. SECTION 1.5 Notices, Etc., to Trustee and Company. Except as otherwise expressly provided herein, any request, demand, authorization, direction, notice, consent, waiver or Act of Holders or other document provided or permitted by this Indenture to be made upon, given or furnished to, or filed with, (1) the Trustee by any Holder or by the Company shall be sufficient for every purpose hereunder if made, given, furnished or filed in writing to or with the Trustee at its Corporate Trust Office, Attention: Corporate Trust Trustee Administration, or (2) the Company or any Guarantor by the Trustee or by any Holder shall be sufficient for every purpose hereunder (unless otherwise herein expressly provided) if in writing and mailed, first-class postage prepaid, to the Company or such Guarantor addressed to it at the address of the Company's principal office specified in the first paragraph of this instrument or at any other address previously 25 furnished in writing to the Trustee by the Company, Attention: Edward E. Cohen, Chairman. SECTION 1.6 Notice to Holders; Waiver. Where this Indenture provides for notice to Holders of any event, such notice shall be sufficiently given (unless otherwise herein expressly provided) if in writing and mailed, first-class postage prepaid, to each Holder affected by such event, at his address as it appears in the Senior Note Register, not later than the latest date (if any), and not earlier than the earliest date (if any), prescribed for the giving of such notice. In any case where notice to Holders is given by mail, neither the failure to mail such notice, nor any defect in any notice so mailed, to any particular Holder shall affect the sufficiency of such notice with respect to other Holders. Where this Indenture provides for notice in any manner, such notice may be waived in writing by the Person entitled to receive such notice, either before or after the event, and such waiver shall be the equivalent of such notice. Waivers of notice by Holders shall be filed with the Trustee, but such filing shall not be a condition precedent to the validity of any action taken in reliance upon such waiver. In case by reason of the suspension of regular mail service or by reason of any other cause it shall be impracticable to give such notice by mail, then such notification as shall be made with the approval of the Trustee shall constitute a sufficient notification for every purpose hereunder. SECTION 1.7 Conflict with Trust Indenture Act. If any provision hereof limits, qualifies or conflicts with a provision of the Trust Indenture Act that is required under such Act to be a part of and govern this Indenture, the latter provision shall control. If any provision of this Indenture modifies or excludes any provision of the Trust Indenture Act that may be so modified or excluded, the latter provision shall be deemed to apply to this Indenture as so modified or to be excluded, as the case may be. SECTION 1.8 Effect of Headings and Table of Contents. The Article and Section headings herein and the Table of Contents are for convenience only and shall not affect the construction hereof. SECTION 1.9 Successors and Assigns. All covenants and agreements in this Indenture by the Company or any Guarantor shall bind its respective successors and assigns, whether so expressed or not. SECTION 1.10 Separability Clause. In case any provision in this Indenture or in the Senior 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. 26 SECTION 1.11 Benefits of Indenture. Nothing in this Indenture, the Senior Notes or the Subsidiary Guarantees, express or implied, shall give to any Person, other than (a) the parties hereto and their successors hereunder and (b) the Holders, any benefit or any legal or equitable right, remedy or claim under this Indenture. SECTION 1.12 Governing Law; Choice of Forum. (a) This Indenture and the Senior Notes will be governed by, and construed in accordance with, the laws of the State of New York without giving effect to applicable principles of conflicts of law to the extent that the application of the law of another jurisdiction would be required thereby. (b) The Company and each of the Guarantors hereby irrevocably submits to the jurisdiction of any New York State Court sitting in the Borough of Manhattan in the City of New York or any federal court sitting in the Borough of Manhattan in the City of New York in respect of any suit, action or proceeding arising out of or relating to this Indenture and the Senior Notes, and irrevocably accepts for itself and in respect of its property, generally and unconditionally, jurisdiction of the aforesaid courts. The Company and each of the Guarantors irrevocably waives, to the fullest extent it may effectively do so under applicable law, any objection which it may now or hereafter have to the laying of the venue of any such suit, action or proceeding brought in any such court and any claim that any such suit, action or proceeding brought in any such court has been brought in an inconvenient forum. (c) The Company and each of the Guarantors hereby irrevocably appoints CT Corporation System (the "Process Agent," which has consented thereto) with offices on the date hereof at 111 Eighth Avenue, New York, New York 10011 as Process Agent to receive for and on behalf of its service process in the County of New York relating to this Indenture, and the Senior Notes and the Subsidiary Guarantees. SERVICE OF PROCESS IN ANY SUIT, ACTION OR PROCEEDING AGAINST THE COMPANY OR ANY OF THE GUARANTORS MAY BE MADE ON THE PROCESS AGENT BY REGISTERED OR CERTIFIED MAIL, RETURN RECEIPT REQUESTED, OR BY ANY OTHER METHOD OF SERVICE PROVIDED FOR UNDER APPLICABLE LAWS IN EFFECT IN THE STATE OF NEW YORK, AND THE PROCESS AGENT IS HEREBY AUTHORIZED AND DIRECTED TO ACCEPT SUCH SERVICE FOR AND ON BEHALF OF THE COMPANY OR ANY OF THE GUARANTORS AND TO ADMIT SERVICE WITH RESPECT THERETO. SUCH 27 SERVICE UPON THE PROCESS AGENT SHALL BE DEEMED EFFECTIVE PERSONAL SERVICE ON THE COMPANY OR SUCH GUARANTOR, SUFFICIENT FOR PERSONAL JURISDICTION, 10 DAYS AFTER MAILING, AND SHALL BE LEGAL AND BINDING UPON THE COMPANY OR SUCH GUARANTOR FOR ALL PURPOSES, NOTWITHSTANDING ANY FAILURE OF THE PROCESS AGENT TO MAIL COPIES OF SUCH LEGAL PROCESS TO IT OR ANY FAILURE ON THE PART OF IT TO RECEIVE THE SAME. The Company and each of the Guarantors confirms that it has instructed the Process Agent to mail to it, upon service of process being made on the Process Agent pursuant to this Section, a copy of the summons and complaint or other legal process served upon it, by registered mail, return receipt requested, at the Company's address set forth in the first paragraph of this instrument, or to such other address as the Company and each of the Guarantors may notify the Process Agent in writing. The Company and each of the Guarantors agrees that it will at all times maintain a process agent to receive service of process in the County of New York on its behalf with respect to this Indenture, and the Senior Notes and the Subsidiary Guarantees. If for any reason the Process Agent or any successor thereto shall no longer serve as such process agent or shall have changed its address without notification thereof to the Trustee, the Company and each of the Guarantors, immediately after gaining knowledge thereof, irrevocably shall appoint a substitute process agent acceptable to the Trustee in the County of New York and advise the Trustee thereof or notify the Trustee of the new address, respectively. (d) NOTHING HEREIN SHALL AFFECT THE RIGHT OF THE TRUSTEE OR ANY HOLDER TO SERVE PROCESS IN ANY OTHER MANNER PERMITTED BY LAW OR TO COMMENCE LEGAL PROCEEDINGS OR OTHERWISE PROCEED AGAINST THE COMPANY OR ANY OR THE GUARANTORS IN ANY OTHER JURISDICTION. SECTION 1.13 Legal Holidays. In any case where any Interest Payment Date, Redemption Date or Stated Maturity of any Senior Note shall not be a Business Day at any Place of Payment, then (notwithstanding any other provision of this Indenture or of the Senior Notes (other than a provision of the Senior Notes which specifically states that such provision shall apply in lieu of this Section)) payment of interest (including any Additional Interest) or principal (and premium, if any) need not be made at such Place of Payment on such date, but may be made on the next succeeding Business Day at such Place of Payment with the same force and effect as if made on the Interest Payment Date or Redemption Date, or at the Stated 28 Maturity, provided that no interest shall accrue with respect to such payment for the period from and after such Interest Payment Date, Redemption Date or Stated Maturity, as the case may be. 29 ARTICLE TWO SENIOR NOTE FORMS SECTION 2.1 Forms Generally. The Senior Notes shall be in substantially the form set forth in this Article, with such appropriate insertions, omissions, substitutions and other variations as are required or permitted by this Indenture, and may have such letters, numbers or other marks of identification and such legends or endorsements placed thereon as may be required to comply with the rules of any securities exchange or as may, consistently herewith, be determined by the officers executing such Senior Notes, as evidenced by their execution of the Senior Notes. The definitive Senior Notes shall be printed, lithographed or engraved on steel engraved borders or may be produced in any other manner, all as determined by the officers of the Company executing such Senior Notes, as evidenced by their execution of such Senior Notes. SECTION 2.2 Form of Face of Senior Note. [If the Security is a Restricted Security, then insert] THE NOTE EVIDENCED HEREBY HAS NOT BEEN REGISTERED UNDER THE U.S. SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), AND, ACCORDINGLY, MAY NOT BE OFFERED OR SOLD EXCEPT AS SET FORTH IN THE FOLLOWING SENTENCE OR UNLESS A REGISTRATION STATEMENT UNDER THE SECURITIES ACT IS IN EFFECT WITH RESPECT TO THIS NOTE. BY ITS ACQUISITION HEREBY (BUT SUBJECT TO CERTAIN RIGHTS TO REQUIRE REGISTRATION OF THE NOTES), THE HOLDER (1) REPRESENTS THAT (A) IT IS A "QUALIFIED INSTITUTIONAL BUYER" (AS DEFINED IN RULE 144A UNDER THE SECURITIES ACT) OR (B) IT IS AN "ACCREDITED INVESTOR" (AS DEFINED IN RULE 501 UNDER THE SECURITIES ACT) ("ACCREDITED INVESTOR"); (2) AGREES THAT IT WILL NOT WITHIN TWO YEARS AFTER THE ORIGINAL ISSUANCE OF THE NOTE EVIDENCED HEREBY RESELL OR OTHERWISE TRANSFER THE NOTE EVIDENCED HEREBY EXCEPT IN A TRANSACTION NOT REQUIRING REGISTRATION UNDER THE SECURITIES ACT (A) TO THE COMPANY, OR ANY SUBSIDIARY THEREOF, (B) TO A QUALIFIED INSTITUTIONAL BUYER IN COMPLIANCE WITH RULE 144A UNDER THE SECURITIES ACT, (C) TO AN ACCREDITED INVESTOR THAT, PRIOR TO SUCH TRANSFER, FURNISHES TO THE TRUSTEE UNDER THE INDENTURE RELATING TO THIS NOTE (THE "TRUSTEE") A SIGNED LETTER CONTAINING CERTAIN REPRESENTATIONS AND AGREEMENTS RELATING TO THE RESTRICTION ON TRANSFER OF THE NOTES EVIDENCED HEREBY (THE FORM OF WHICH LETTER CAN BE OBTAINED FROM THE TRUSTEE), (D) PURSUANT TO ANY OTHER AVAILABLE EXEMPTION FROM REGISTRATION REQUIREMENTS OF THE SECURITIES ACT INCLUDING THE EXEMPTION PROVIDED BY RULE 144 UNDER THE SECURITIES ACT (IF AVAILABLE); AND (3) AGREES THAT IT WILL DELIVER TO EACH PERSON TO WHOM THIS NOTE IS TRANSFERRED A NOTICE SUBSTANTIALLY TO THE EFFECT OF THIS LEGEND, IN CONNECTION WITH ANY TRANSFER OF 30 THE NOTE EVIDENCED HEREBY WITHIN TWO YEARS AFTER THE ORIGINAL ISSUANCE OF SUCH NOTE. IF THE PROPOSED TRANSFEREE IS AN ACCREDITED INVESTOR, THE HOLDER MUST, PRIOR TO SUCH TRANSFER, FURNISH TO THE TRUSTEE SUCH CERTIFICATIONS, LEGAL OPINIONS OR OTHER INFORMATION AS THE COMPANY OR THE TRUSTEE MAY REASONABLY REQUIRE TO CONFIRM THAT SUCH TRANSFER IS BEING MADE PURSUANT TO AN EXEMPTION FROM, OR IN A TRANSACTION NOT SUBJECT TO, THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT. [All Securities, including Series B Senior Notes, shall be in substantially the following form] NO EMPLOYEE BENEFIT OR OTHER PLAN SUBJECT TO TITLE I OF THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED ("ERISA"), OR SECTION 4975 OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE "CODE") (EACH, A "PLAN"), NO ENTITY WHOSE UNDERLYING ASSETS INCLUDE "PLAN ASSETS" BY REASON OF ANY PLAN'S INVESTMENT IN THE ENTITY (A "PLAN ASSET ENTITY"), AND NO PERSON INVESTING "PLAN ASSETS" OF ANY PLAN, MAY ACQUIRE OR HOLD THIS SECURITY OR ANY INTEREST THEREIN, UNLESS SUCH PURCHASER OR HOLDER IS ELIGIBLE FOR THE EXEMPTIVE RELIEF AVAILABLE UNDER U.S. DEPARTMENT OF LABOR PROHIBITED TRANSACTION CLASS EXEMPTION ("PTCE") 96-23, 95-60, 91-38, 90-1 OR 84-14 WITH RESPECT TO SUCH PURCHASE OR HOLDING. ANY PURCHASER OR HOLDER OF THIS SECURITY OR ANY INTEREST THEREIN WILL BE DEEMED TO HAVE REPRESENTED BY ITS PURCHASE AND HOLDING THEREOF THAT IT EITHER (A) IS NOT A PLAN OR A PLAN ASSET ENTITY AND IS NOT PURCHASING THIS SECURITY ON BEHALF OF OR WITH "PLAN ASSETS" OF ANY PLAN OR (B) IS ELIGIBLE FOR THE EXEMPTIVE RELIEF AVAILABLE UNDER PTCE 96-23, 95-60, 91-38, 90-1 OR 84-14 WITH RESPECT TO SUCH PURCHASE OR HOLDING. 31 RESOURCE AMERICA, INC. 12% Senior Notes Due August 1, 2008 No____________ $___________ CUSIP No. ____________ Resource America, Inc., a corporation duly organized and existing under the laws of Delaware (herein called the "Company", which term includes any Successor Company under the Indenture hereinafter referred to), for value received, hereby promises to pay to ____________________, or registered assigns, the principal sum of ___________ Dollars on August 1, 2008, and to pay interest thereon from ______, 2003 or from the most recent Interest Payment Date to which interest has been paid or duly provided for, semi-annually in arrears on February 1 and August 1 in each year, commencing August 1, 2003, at the rate of 12% per annum, plus Additional Interest, if any, until the principal hereof is paid or made available for payment, and at the rate of 1% over the rate set forth above per annum on any overdue principal and (to the extent that the payment of such interest shall be legally enforceable) on any overdue installment of interest. The interest so payable, and punctually paid or duly provided for, on any Interest Payment Date will, as provided in such Indenture, be paid to the Person in whose name this Senior Note (or one or more Predecessor Senior Notes) is registered at the close of business on the Regular Record Date for such interest, which shall be January 15 or July 15 (whether or not a Business Day), as the case may be, next preceding such Interest Payment Date. Any such interest (including any Additional Interest) not so punctually paid or duly provided for will forthwith cease to be payable to the Holder on such Regular Record Date and may either be paid to the Person in whose name this Senior Note (or one or more Predecessor Senior Notes) is registered at the close of business on a Special Record Date for the payment of such Defaulted Interest to be fixed by the Trustee, notice whereof shall be given to Holders of Senior Notes not less than 10 days prior to such Special Record Date, or be paid at any time in any other lawful manner not inconsistent with the requirements of any securities exchange on which the Senior Notes may be listed, and upon such notice as may be required by such exchange, all as more fully provided in said Indenture. Interest on the Senior Notes shall be computed on the basis of a 360-day year of twelve 30-day months. The principal of, and premium, if any, and interest including Additional Interest, if any, on the Senior Notes shall be payable at the principal office of the Company in Philadelphia, Pennsylvania or at the office of the Paying Agent as may be established by the Company and the Trustee (herein called the "Place of Payment"; initially the Place of Payment shall be the principal corporate trust office of the Trustee in New York, New York). All such payments shall be made in such coin or currency of the United States of America as at the time of payment is legal tender for payment of public and private debts; provided, however, that at the option of the Company, payment of interest may be made (subject to collection) by check mailed to the address of the Person entitled thereto at such address as shall appear on the Note Register or by wire transfer in immediately available funds to the accounts designated by the Person entitled thereto in writing in form satisfactory to the Trustee at least fifteen (15) days prior to the date of such payment. 32 Reference is hereby made to the further provisions of this Senior Note set forth on the reverse hereof, which further provisions shall for all purposes have the same effect as if set forth at this place. Unless the certificate of authentication hereon has been executed by the Trustee referred to on the reverse hereof by manual signature, this Senior Note shall not be entitled to any benefit under the Indenture or be valid or obligatory for any purpose. IN WITNESS WHEREOF, the Company has caused this instrument to be duly executed under its corporate seal. RESOURCE AMERICA, INC. By: _____________________________ Attest: -------------------------------- 33 SECTION 2.3 Form of Reverse of Senior Note. This Senior Note is one of a duly authorized issue of the Company (herein called the "Senior Notes"), issued under an Indenture, dated as of April 10, 2003 (herein called the "Indenture"), between the Company, the Guarantors and The Bank of New York as Trustee (herein called the "Trustee", which term includes any successor trustee under the Indenture), to which Indenture and all indentures supplemental thereto reference is hereby made for a statement of the respective rights, limitations of rights, duties and immunities thereunder of the Company, the Guarantors, the Trustee and the Holders of the Senior Notes and of the terms upon which the Senior Notes are, and are to be, authenticated and delivered. The Senior Notes may not be redeemed prior to August 1, 2006 except as set forth herein. On or after such date, the Senior Notes may be redeemed upon not less than 30 days' and not more than 60 days' notice by mail, at any time on or after August 1, 2006, as a whole or in part, at the election of the Company, at the following Redemption Prices (expressed as percentages of the principal amount): Redemption Year Price ---- ---------- 2006 106% 2007 103% together in the case of any such redemption with accrued and unpaid interest (including any Additional Interest) to the Redemption Date, but interest installments whose Stated Maturity is on or prior to such Redemption Date will be payable to the Holders of such Senior Notes, or one or more Predecessor Senior Notes, of record at the close of business on the relevant Regular Record Dates referred to on the face hereof, all as provided in the Indenture. In the event of redemption of this Senior Note in part only, a new Senior Note or Senior Notes of like tenor for the unredeemed portion hereof will be issued in the name of the Holder hereof upon the cancellation hereof. Upon a Change of Control Event, the Holder of this Senior Note will have the right to cause the Company to repurchase all or any part of this Senior Note at a repurchase price equal to 101% of the principal amount of this Senior Note plus accrued interest (including any Additional Interest) to the date of purchase (subject to the right of the Holders on the relevant Regular Record Date to receive interest due on the relevant Interest Payment Date) as provided in, and subject to the terms of, the Indenture. If the Company or a Subsidiary (other than any of the Atlas Pipeline Entities) consummates any Asset Sales, within five days of each date on which the aggregate amount of Excess Proceeds exceeds $20.0 million the Company shall commence an offer to all Holders of Notes and all holders of other Pari Passu Indebtedness containing provisions similar to those set forth in the Indenture with respect to offers to purchase or redeem with the proceeds of sales of assets to purchase the maximum principal amount of Notes and such Pari Passu Indebtedness that may be purchased out of the Excess Proceeds at an offer price in cash in an amount equal to 100% of principal amount plus accrued and unpaid 34 interest and Additional Interest, if any, to the date of purchase. If any Excess Proceeds remain after consummation of an Asset Sale Offer, the Company may use those Excess Proceeds for any purpose not otherwise prohibited by the Indenture. If the aggregate principal amount of Notes and Pari Passu Indebtedness tendered into such Asset Sale Offer exceeds the amount of Excess Proceeds, the Trustee shall select the Notes and Pari Passu Indebtedness to be purchased on a pro rata basis. Upon completion of each Asset Sale Offer, the amount of Excess Proceeds shall be reset at zero. Holders of Notes that are the subject of an offer to purchase will receive an Asset Sale Offer from the Company prior to any related purchase date and may elect to have such Notes purchased by completing the form entitled "Option of Holder to Elect Purchase" on the reverse of the Senior Notes. The Indenture contains provisions for defeasance at any time of (a) the entire indebtedness evidenced by this Senior Note and (b) certain restrictive covenants, in each case upon compliance by the Company with certain conditions set forth therein, which provisions apply to this Senior Note. If an Event of Default with respect to Senior Notes shall occur and be continuing, the principal of the Senior Notes may be declared due and payable in the manner and with the effect provided in the Indenture. The Indenture permits, with certain exceptions as therein provided, the amendment thereof and the modification of the rights and obligations of the Company and the Guarantors and the rights of the Holders of the Senior Notes at any time by the Company, the Guarantors and the Trustee with the consent of the Holders of a majority in principal amount of the Senior Notes at the time Outstanding. The Indenture also contains provisions permitting the Holders of specified percentages in principal amount of the Senior Notes at the time Outstanding, on behalf of the Holders of all Senior Notes, to waive certain past defaults under the Indenture and their consequences. Any such consent or waiver shall be conclusive and binding upon the Holder of this Senior Note and upon all future Holders of this Senior Note and of any Senior Note issued upon the registration of transfer hereof or in exchange therefor or in lieu hereof, whether or not notation of such consent or waiver is made upon this Senior Note. No reference herein to the Indenture and no provision of this Senior Note or of the Indenture shall alter or impair the obligation of the Company, which is absolute and unconditional, to pay the principal of and any premium and interest (including any Additional Interest) on this Senior Note at the times, place and rate, and in the coin or currency, herein prescribed. As provided in the Indenture and subject to certain limitations therein set forth, the transfer of this Senior Note is registrable in the Senior Note Register, upon surrender of this Senior Note for registration of transfer at the office or agency of the Company in any place where the principal of and any premium and interest (including any Additional Interest) on this Senior Note are payable, duly endorsed by, or accompanied by a written instrument of transfer in form satisfactory to the Company and the Senior Note Registrar duly executed by, the Holder hereof or his attorney duly authorized in writing, and thereupon one 35 or more new Senior Notes of like tenor, of authorized denominations and for the same aggregate principal amount, will be issued to the designated transferee or transferees. The Senior Notes are issuable only in registered form without coupons in denominations of $1,000 and any integral multiple thereof. No service charge shall be made for any such registration of transfer or exchange, but the Company may require payment of a sum sufficient to cover any tax or other governmental charge payable in connection therewith. Prior to due presentment of this Senior Note for registration of transfer, the Company, the Trustee and any agent of the Company or the Trustee may treat the Person in whose name this Senior Note is registered as the owner hereof for all purposes, whether or not this Senior Note be overdue, and neither the Company, the Trustee nor any such agent shall be affected by notice to the contrary. All terms used in this Senior Note which are defined in the Indenture shall have the meanings assigned to them in the Indenture. The Indenture and the Senior Notes will be governed by, and construed in accordance with, the laws of the State of New York without giving effect to applicable principles of conflicts of law to the extent that the application of the law of another jurisdiction would be required. SECTION 2.4 Form of Legend for Global Senior Notes. Any Global Senior Note authenticated and delivered hereunder shall bear a legend in substantially the following form: "This Senior Note is a Global Senior Note within the meaning of the Indenture hereinafter referred to and is registered in the name of a Depositary or a nominee thereof. This Senior Note may not be transferred to, or registered or exchanged for Senior Notes registered in the name of, any Person other than the Depositary or a nominee thereof or a successor of such Depositary or a nominee of such successor and no such transfer may be registered, except in the limited circumstances described in the Indenture. Every Senior Note authenticated and delivered upon registration of transfer of, or in exchange for or in lieu of, this Senior Note shall be a Global Senior Note subject to the foregoing, except in such limited circumstances." SECTION 2.5 Legending of the Securities; Restrictions on Transfers. Until such time as the same is no longer a Restricted Security, each certificate evidencing the Securities (and all Securities issued in exchange therefor or substitution thereof) shall bear a legend in substantially the form set forth on the form of Senior Note set forth at Section 2.2. Prior to any transfer or exchange of a legended Security for another Security, the Company shall deliver an Officers' Certificate to the Trustee directing it to transfer or exchange such Security for another legended or unlegended Security, subject to compliance with any transfer restrictions. 36 SECTION 2.6 Form of Trustee's Certificate of Authentication. The Trustee's certificates of authentication shall be in substantially the following form: This is one of the Senior Notes designated and referred to in the within-mentioned Indenture. The Bank of New York, as Trustee Dated: ___________________ By: ______________________________ Authorized Signatory SECTION 2.7 Form of Assignment and Election to Purchase. Each Senior Note shall include the following form of Assignment and Option of Holder to Elect Purchase: ASSIGNMENT (To be executed by the registered Holder if such Holder desires to transfer this Senior Note) FOR VALUE RECEIVED _____________ hereby sells, assigns and transfers unto ________________________. PLEASE INSERT SOCIAL SECURITY OR OTHER TAX IDENTIFYING NUMBER OF TRANSFEREE (Please print name and address of transferee) this Senior Note, together with all right, title and interest herein, and does hereby irrevocably constitute and appoint ___________________ Attorney to transfer this Senior Note on the Senior Note Register, with full power of substitution. Dated: __________________________________ Signature of Holder: ____________________________ Signature Guaranteed: ___________________________ NOTICE: The signature to the foregoing Assignment must correspond to the name as written upon the face of this Senior Note in every particular, without alteration or any change whatsoever. 37 OPTION OF HOLDER TO ELECT PURCHASE (check as appropriate) If you want to elect to have this Senior Note purchased by the Company pursuant to Section 9.17 or 9.20 of the Indenture, check the appropriate box below: [ ] Section 9.17 [ ] Section 9.20 Indicate the amount of this Senior Note you wish to have purchased by checking the appropriate box below.
[ ] entire principal amount [ ] $___________ (must be $1,000 in principal amount or integral multiple thereof)
Dated: __________________________________ Signature of Holder: ____________________________ Signature Guaranteed: ___________________________ NOTICE: The signature to the foregoing must correspond to the name as written upon the face of this Senior Note in every particular, without alteration or any change whatsoever. 38 ARTICLE THREE THE SENIOR NOTES SECTION 3.1 Global Senior Note; Depositary. Any Senior Notes issued in the form of one or more Global Senior Notes will be deposited with The Depository Trust Company or any successor thereto (the "Depositary"), or the Trustee on its behalf, and registered in the name of the Depositary's nominee, as nominee of the Depositary (such nominee being referred to herein as the "Global Senior Note Holder"). SECTION 3.2 Reserved. SECTION 3.3 Denominations The Senior Notes shall be issuable in registered form without coupons in denominations of $1,000 and any integral multiple thereof. SECTION 3.4 Execution, Authentication, Delivery and Dating. The Senior Notes shall be executed on behalf of the Company by its Chairman of the Board, its Vice Chairman of the Board, its Chief Executive Officer, its President or one of its Vice Presidents, under its corporate seal, if any, reproduced thereon attested by its Secretary or one of its Assistant Secretaries. The signature of any of these officers on the Senior Notes and the corporate seal may be manual or facsimile. Senior Notes bearing the manual or facsimile signatures of individuals who were at any time the proper officers of the Company shall bind the Company, notwithstanding that such individuals or any of them have ceased to hold such offices prior to the authentication and delivery of such Senior Notes or did not hold such offices at the date of such Senior Notes. At any time and from time to time after the execution and delivery of this Indenture, the Company may deliver Senior Notes executed by the Company to the Trustee for authentication, together with a Company Order for the authentication and delivery of such Senior Notes, and the Trustee in accordance with the Company Order shall authenticate and make such Senior Notes available for delivery. Each Senior Note shall be dated the date of its authentication. No Senior Note shall be entitled to any benefit under this Indenture or be valid or obligatory for any purpose unless there appears on such Senior Note a certificate of authentication substantially in the form provided for herein executed by the Trustee or an Authenticating Agent by manual signature of an authorized signatory of the Trustee or an Authenticating Agent, and such certificate upon any Senior Note shall be conclusive evidence, and the only evidence, that such Senior Note has been duly authenticated and delivered hereunder. Notwithstanding the foregoing, if any Senior Note shall have been authenticated and delivered hereunder but never issued and sold by the Company, and the Company shall deliver such Senior Note to the Trustee for cancellation 39 as provided in Section 3.10, for all purposes of this Indenture such Senior Note shall be deemed never to have been authenticated and delivered hereunder and shall never be entitled to the benefits of this Indenture. SECTION 3.5 Temporary Senior Notes. Pending the preparation of definitive Senior Notes, the Company may execute, and upon Company Order the Trustee shall authenticate and make available for delivery, temporary Senior Notes which are printed, lithographed, typewritten, mimeographed or otherwise produced, in any authorized denomination, substantially of the tenor of the definitive Senior Notes in lieu of which they are issued and with such appropriate insertions, omissions, substitutions and other variations as the officers executing such Senior Notes may determine, as evidenced by their execution of such Senior Notes. If temporary Senior Notes are issued, the Company will cause definitive Senior Notes to be prepared without unreasonable delay. After the preparation of definitive Senior Notes, the temporary Senior Notes shall be exchangeable for definitive Senior Notes upon surrender of the temporary Senior Notes at the office or agency of the Company in a Place of Payment, without charge to the Holder. Upon surrender for cancellation of any one or more temporary Senior Notes the Company shall execute and the Trustee shall authenticate and make available for delivery in exchange therefor one or more definitive Senior Notes of any authorized denominations and of a like aggregate principal amount and tenor. Until so exchanged the temporary Senior Notes shall in all respects be entitled to the same benefits under this Indenture as definitive Senior Notes of such tenor. SECTION 3.6 Registration; Registration of Transfer and Exchange. The Company shall cause to be kept at the Corporate Trust Office a register (the register maintained in such office being herein sometimes collectively referred to as the "Senior Note Register"), in which, subject to such reasonable regulations as it may prescribe, the Company shall provide for the registration of Senior Notes and of transfers of Senior Notes. The Trustee is hereby appointed "Senior Note Registrar" for the purpose of registering Senior Notes and transfers of Senior Notes as herein provided. Upon surrender for registration of transfer of any Senior Note at the office or agency in a Place of Payment, the Company shall execute, and the Trustee shall authenticate and make available for delivery, in the name of the designated transferee or transferees, one or more new Senior Notes of any authorized denominations and of a like aggregate principal amount and tenor. At the option of the Holder, Senior Notes may be exchanged for other Senior Notes of any authorized denominations and of a like aggregate principal amount and tenor, upon surrender of the Senior Notes to be exchanged at such office or agency. Whenever any Senior Notes are so surrendered for exchange, the Company shall execute, and the Trustee shall authenticate and make available for delivery, the Senior Notes which the Holder making the exchange is entitled to receive. 40 All Senior Notes issued upon any registration of transfer or exchange of Senior Notes shall be the valid obligations of the Company, evidencing the same debt, and entitled to the same benefits under this Indenture, as the Senior Notes surrendered upon such registration of transfer or exchange. Every Senior Note presented or surrendered for registration of transfer or for exchange shall (if so required by the Company or the Trustee) be duly endorsed, or be accompanied by a written instrument of transfer in form satisfactory to the Company and the Senior Note Registrar duly executed, by the Holder thereof or his attorney duly authorized in writing. No service charge shall be made for any registration of transfer or exchange of Senior Notes, but the Company may require payment of a sum sufficient to cover any tax or other governmental charge that may be imposed in connection with any registration of transfer or exchange of Senior Notes, other than exchanges pursuant to Section 3.5, 9.17 or 11.7 not involving any transfer. The Company shall not be required (i) to issue, register the transfer of or exchange Senior Notes during a period beginning at the opening of business 15 days before the day of the mailing of a notice of redemption of Senior Notes selected for redemption under Section 11.3 and ending at the close of business on the day of such mailing or (ii) to register the transfer of or exchange any Senior Note so selected for redemption in whole or in part, except the unredeemed portion of any Senior Note being redeemed in part. Any Additional Notes which are presented to the Registrar for exchange pursuant to an Exchange Offer shall be exchanged for Series B Senior Notes of equal principal amount upon surrender to the Registrar of the Additional Notes to be exchanged; provided, however, that the Additional Notes surrendered for exchange in an Exchange Offer shall be duly endorsed and accompanied by a letter of transmittal or written instrument of transfer in form satisfactory to the Company, the Trustee and the Registrar, duly executed by the Holder thereof or his attorney who shall be duly authorized in writing to execute such document. Whenever any Additional Notes are so surrendered for exchange, the Company shall execute, and the Trustee shall, upon Company Order, authenticate and make available for delivery to the Registrar, the same aggregate principal amount of Series B Senior Notes as the aggregate principal amount of Additional Notes that have been surrendered. Notwithstanding any other provisions hereof, no Additional Note may be exchanged by the Holder thereof for a Series B Senior Note other than pursuant to an Exchange Offer and no Series B Senior Note may be exchanged by the Holder thereof for an Additional Note. Each Holder of a Senior Note agrees to indemnify the Company and the Trustee against any liability that may result from the transfer, exchange or assignment of such Holder's Senior Note in violation of any provision of this Indenture and/or applicable United States federal or state securities law. 41 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 Security (including any transfers between or among Depositary participants or beneficial owners of interests in any Global Security) other than to require delivery of such certificates and other documentation or evidence as are expressly required by, and to do so if and when expressly required by the terms of, this Indenture, and to examine the same to determine substantial compliance as to form with the express requirements hereof. SECTION 3.7 Mutilated, Destroyed, Lost and Stolen Senior Notes. If any mutilated Senior Note is surrendered to the Trustee, the Company shall execute and the Trustee shall authenticate and make available for delivery in exchange therefor a new Senior Note of like tenor and principal amount and bearing a number not contemporaneously outstanding. If there shall be delivered to the Company and the Trustee (i) evidence to their satisfaction of the destruction, loss or theft of any Senior Note and (ii) such security or indemnity as may be required by them to save each of them and any agent of either of them harmless, then, in the absence of notice to the Company or the Trustee that such Senior Note has been acquired by a bona fide purchaser, the Company shall execute and the Trustee shall authenticate and make available for delivery, in lieu of any such destroyed, lost or stolen Note, a new Senior Note of like tenor and principal amount and bearing a number not contemporaneously outstanding. In case any such mutilated, destroyed, lost or stolen Senior Note has become or is about to become due and payable, the Company in its discretion may, instead of issuing a new Senior Note, pay such Senior Note. Upon the issuance of any new Senior Note under this Section, the Company may require the payment of a sum sufficient to cover any tax or other governmental charge that may be imposed in relation thereto and any other expenses (including the fees and expenses of the Trustee) connected therewith. Every new Senior Note issued pursuant to this Section in lieu of any destroyed, lost or stolen Senior Note shall constitute an original additional contractual obligation of the Company, whether or not the destroyed, lost or stolen Senior Note shall be at any time enforceable by anyone, and shall be entitled to all the benefits of this Indenture equally and proportionately with any and all other Senior Notes duly issued hereunder. The provisions of this Section are exclusive and shall preclude (to the extent lawful) all other rights and remedies with respect to the replacement or payment of mutilated, destroyed, lost or stolen Senior Notes. SECTION 3.8 Payment of Interest; Interest Rights Preserved. Interest (including any Additional Interest) on any Senior Note which is payable, and is punctually paid or duly provided for, on any Interest Payment Date shall be paid to the Person in whose name that Senior Note (or one or more Predecessor Senior Notes) is registered at the close of business on the Regular 42 Record Date for such interest. All payments of interest (including any Additional Interest) on any Senior Notes shall be made by the Company in immediately available funds; provided, however, that should, in accordance with the terms of the Indenture, interest (including any Additional Interest) on the Senior Notes not be paid in immediately available funds, such payment may be paid by check drawn on a bank in The City of New York and mailed to the address of the Person entitled thereto as such address shall appear in the Senior Note Register. Any interest (including any Additional Interest) on any Senior Note which is payable, but is not punctually paid or duly provided for, on any Interest Payment Date (herein called "Defaulted Interest") shall forthwith cease to be payable to the Holder on the relevant Regular Record Date by virtue of having been such Holder, and such Defaulted Interest may be paid by the Company, at its election in each case, as provided in clause (1) or (2) below: (1) The Company may elect to make payment of any Defaulted Interest to the Persons in whose names the Senior Notes (or their respective Predecessor Senior Notes) are registered at the close of business on a Special Record Date for the payment of such Defaulted Interest, which shall be fixed in the following manner. The Company shall notify the Trustee in writing of the amount of Defaulted Interest proposed to be paid on each Senior Note and the date of the proposed payment, and at the same time the Company shall deposit with the Trustee an amount of money equal to the aggregate amount proposed to be paid in respect of such Defaulted Interest or shall make arrangements satisfactory to the Trustee for such deposit prior to the date of the proposed payment, such money when deposited to be held in trust for the benefit of the Persons entitled to such Defaulted Interest as in this clause provided. Thereupon the Trustee shall fix a Special Record Date for the payment of such Defaulted Interest which shall be not more than 15 days and not less than 7 days prior to the date of the proposed payment and not less than 7 days after the receipt by the Trustee of the notice of the proposed payment. The Trustee shall promptly notify the Company of such Special Record Date and, in the name and at the expense of the Company, shall cause notice of the proposed payment of such Defaulted Interest and the Special Record Date therefor to be mailed, first-class postage prepaid, to each Holder of Senior Notes at its address as it appears in the Senior Note Register, not less than 10 days prior to such Special Record Date. Notice of the proposed payment of such Defaulted Interest and the Special Record Date therefor having been so mailed, such Defaulted Interest shall be paid to the Persons in whose names the Senior Notes (or their respective Predecessor Senior Notes) are registered at the close of business on such Special Record Date and shall no longer be payable pursuant to the following clause (2). 43 (2) The Company may make payment of any Defaulted Interest on the Senior Notes in any other lawful manner not inconsistent with the requirements of any securities exchange on which such Senior Notes may be listed, and upon such notice as may be required by such exchange, if, after notice given by the Company to the Trustee of the proposed payment pursuant to this clause, such manner of payment shall be deemed practicable by the Trustee. Subject to the foregoing provisions of this Section, each Senior Note delivered under this Indenture upon registration of transfer of or in exchange for or in lieu of any other Senior Note shall carry the rights to interest (including any Additional Interest) accrued and unpaid, and to accrue, which were carried by such other Senior Note. SECTION 3.9 Persons Deemed Owners. Prior to due presentment of a Senior Note for registration of transfer, the Company, the Trustee and any agent of the Company or the Trustee may treat the Person in whose name such Senior Note is registered as the owner of such Senior Note for the purpose of receiving payment of principal of and any premium and (subject to Section 3.8) any interest (including any Additional Interest) on such Senior Note and for all other purposes whatsoever, whether or not such Senior Note be overdue, and neither the Company, the Trustee nor any agent of the Company or the Trustee shall be affected by notice to the contrary. So long as the Global Senior Note Holder is the registered owner of any Senior Notes, the Global Senior Note Holder will be considered the sole Holder under this Indenture of any Senior Notes evidenced by the Global Senior Note for the purposes of receiving payment on the Senior Notes, receiving notices, and for all other purposes under this Indenture and the Senior Notes. Beneficial owners of Senior Notes evidenced by the Global Senior Note will not be considered the owners or Holders thereof under this Indenture for any purpose, including with respect to the giving of any directions, instructions or approvals to the Trustee thereunder. Neither the Company nor the Trustee will have any responsibility or liability for any aspect of the records of the Depositary or for maintaining, supervising or reviewing any records of the Depositary relating to the Senior Notes. SECTION 3.10 Cancellation. All Senior Notes surrendered for payment, redemption or registration of transfer or exchange shall, if surrendered to any Person other than the Trustee, be delivered to the Trustee and shall be promptly canceled by it. The Company may at any time deliver to the Trustee for cancellation any Senior Notes previously authenticated and delivered hereunder which the Company may have acquired in any manner whatsoever, and may deliver to the Trustee (or to any other Person for delivery to the Trustee) for cancellation any Senior Notes previously authenticated hereunder which the Company has not issued and sold, and all Senior Notes so delivered shall be promptly canceled by the Trustee. No Senior Notes shall be authenticated in lieu of or in exchange for any Senior Notes canceled as provided in this Section, except as expressly permitted by this Indenture. All canceled Senior Notes held by the Trustee shall be promptly returned to the Company. 44 SECTION 3.11 Computation of Interest. Interest on the Senior Notes shall be computed on the basis of a 360-day year of twelve 30-day months. SECTION 3.12 CUSIP Numbers. The Company in issuing the Securities may use "CUSIP" numbers (if then generally in use), and, if so, the Trustee shall use "CUSIP" numbers in notices of redemption or other related material as a convenience to Holders; provided that any such notice or other related material may state that no representation is made as to the correctness of such numbers either as printed on the Securities or as contained in any notice of redemption or other related material and that reliance may be placed only on the other identification numbers printed on the Securities, 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. 45 ARTICLE FOUR BOOK-ENTRY PROVISIONS FOR GLOBAL SENIOR NOTES SECTION 4.1 Applicability of Article. Each Global Senior Note shall be subject to this Article Four. SECTION 4.2 Book-Entry Provisions For Global Senior Note. (a) Members of, or participants in, the Depositary ("Agent Members") shall have no rights under this Indenture with respect to any Global Senior Note held on their behalf by the Depositary or under the Global Senior Note, and the Depositary may be treated by the Company, the Trustee and any agent of the Company or the Trustee as the absolute owner of the Global Senior Note for all purposes whatsoever. Any Holder of the Global Senior Note shall, by acceptance of such Global Senior Note, agree that the transfers of beneficial interests in such Global Senior Note may be effected only through a book-entry system maintained by the Depositary (or its agent), and that ownership of a beneficial interest in the Global Senior Note shall be required to be reflected in a book-entry system. Notwithstanding the foregoing, nothing herein shall prevent the Company, the Trustee or an agent of the Company or the Trustee from giving effect to any written certification, proxy or other authorization furnished by the Depositary or impair, as between the Depositary and its Agent Members, the operation of customary practices governing the exercise of the rights of a Holder of any Senior Note. (b) Notwithstanding any other provision of this Section, unless and until it is exchanged in whole or in part for individual Senior Notes represented thereby, a Global Senior Note representing all or a portion of the Senior Notes may not be transferred except as a whole by the Depositary to a nominee of such Depositary or by a nominee of such Depositary to such Depositary or another nominee of such Depositary or by such Depositary or any such nominee to a successor Depositary or a nominee of such successor Depositary. Interests of beneficial owners in the Global Senior Notes (each an "Interest") may be transferred to one beneficial owner or to another Agent Member or exchanged for definitive Senior Notes in accordance with the rules and procedures of the Depositary and the provisions of this Indenture. In addition, definitive Senior Notes shall be transferred to all beneficial owners in exchange for their beneficial interests in Global Senior Notes if (i) the Depositary for the Senior Notes notifies the Company that the Depositary is unwilling or unable to continue as Depositary for the Global Senior Notes or is no longer eligible to serve as Depositary pursuant 46 to the terms of this Indenture and a successor Depositary is not appointed by the Company within 90 days after delivery of such notice; (ii) the Company, at its sole discretion, notifies the Trustee in writing that it elects to cause the issuance of definitive Senior Notes under this Indenture; or (iii) there shall have occurred and be continuing a Default or an Event of Default with respect to any Senior Notes represented by the Global Senior Notes; and the Trustee shall, upon receipt of a Company Order in accordance with Section 3.4, authenticate and make available for delivery, definitive Senior Notes in an aggregate principal amount equal to the principal amount of the Global Senior Notes in exchange for such Global Senior Notes. If specified by the Company pursuant to Section 3.4, the Depositary may surrender a Global Senior Note in exchange in whole or in part for Senior Notes of like tenor and terms and in definitive form on such terms as are acceptable to the Company, the Trustee and the Depositary. (c) In connection with the transfer of Global Senior Notes to beneficial owners pursuant to the third sentence of paragraph (b) of this Section, the Global Senior Notes shall be deemed to be surrendered to the Trustee for cancellation, and the Company shall execute and the Trustee upon receipt of a Company Order for the authentication and delivery of definitive Senior Notes shall authenticate and make available for delivery, without service charge: (i) to the Depositary or to each Person specified by such Depositary a new Senior Note or Senior Notes of like tenor and terms and of any authorized denomination as requested by such Person in aggregate principal amount equal to and in exchange for such Person's beneficial interest in the Global Senior Note; and (ii) to such Depositary a new Global Senior Note of like tenor and terms and in an authorized denomination equal to the difference, if any, between the principal amount of the surrendered Global Senior Note and the aggregate principal amount of Senior Notes delivered to Holders thereof. Notwithstanding any other provision of this Indenture, any Senior Note authenticated and delivered upon registration of transfer of, or in exchange for, or in lieu of, any Global Senior Note shall also be a Global Senior Note and shall bear the legend specified in Section 2.4 except for any Senior Note authenticated and delivered in exchange for, or upon registration of transfer of, a Global Senior Note pursuant to the preceding sentence. 47 (d) The Holder of any Global Senior Note may grant proxies and otherwise authorize any person, including Agent Members and persons that may hold interests through Agent Members, to take any action which a Holder is entitled to take under this Indenture or the Senior Notes. (e) Upon the exchange of a Global Senior Note in its entirety for Senior Notes in definitive form, such Global Senior Note shall be canceled by the Trustee. (f) Notwithstanding anything herein to the contrary, if at any time the Depositary for the Senior Notes notifies the Company that it is unwilling or unable to continue as a Depositary for the Senior Notes or if at any time the Depositary for the Senior Notes shall no longer be registered or in good standing under the Exchange Act, or other applicable statute or regulation, the Company shall appoint a successor Depositary with respect to the Senior Notes. If a successor Depositary for the Senior Notes is not appointed by the Company within 90 days after the Company receives such notice or becomes aware of such condition, the Company will execute, and the Trustee, upon Company Request, will authenticate and make available for delivery Senior Notes in definitive form in an aggregate principal amount equal to the principal amount of the Global Senior Note or Global Senior Notes representing Senior Notes in exchange for such Global Senior Note or Global Senior Notes. 48 ARTICLE FIVE REMEDIES SECTION 5.1 Events of Default. An "Event of Default" as used herein is any one of the following: (a) failure by the Company to pay interest (including any Additional Interest) on any Senior Note when due and payable, if such failure continues for a period of 30 days; (b) failure by the Company to pay principal on any Senior Note when due and payable at Stated Maturity or upon redemption, acceleration or otherwise; (c) failure by the Company to comply with any other agreement or covenant contained in this Indenture (other than a default specified in clause (a) or (b) above) if such failure continues for a period of 30 days after notice to the Company by the Trustee or to the Company and the Trustee by the Holders of at least 25% in principal amount of the Senior Notes then Outstanding; (d) Indebtedness of the Company or any Subsidiary of the Company is not paid within any applicable grace period after final maturity or in the event that final maturity is accelerated because of a default and, in either case, where the aggregate principal amount of such Indebtedness so unpaid or accelerated is equal to or greater than 5% of the Company's Consolidated Net Worth at the quarter end preceding the end of such grace period or such acceleration; (e) any Subsidiary Guarantee is held in any judicial proceeding to be unenforceable or invalid or ceases for any reason to be in full force and effect or any Guarantor denies or disaffirms its obligations under its Subsidiary Guarantee; (f) existence of one or more judgments against the Company or any of its Subsidiaries, which remain undischarged 60 days after all rights to directly review such judgment, whether by appeal or writ, have been exhausted or have expired, in excess, either individually or in the aggregate, of 5% of the Company's Consolidated Net Worth as of the quarter end preceding the end of such 60-day period; or (g) a receiver, liquidator, assignee, custodian, trustee, conservator, sequestrator (or other similar official) shall take possession of the Company or any Significant Subsidiary or any substantial part of the property of the Company or any Significant Subsidiary without the consent of the Company or such Significant Subsidiary, respectively, or a court having jurisdiction in the premises shall enter a decree or order for relief in respect of the Company or such Significant Subsidiary in an involuntary case under any applicable bankruptcy, insolvency, 49 receivership, conservatorship or other similar law now or hereafter in effect, or appointing a receiver, liquidator, assignee, trustee, custodian, conservator, sequestrator (or other similar official) of the Company or the Significant Subsidiary or for any substantial part of the property of the Company or the Significant Subsidiary, or ordering the winding-up or liquidation of the affairs of the Company or the Subsidiary, and such decree or order shall continue unstayed and in effect for a period of 60 consecutive days, or the Company or the Significant Subsidiary shall commence a voluntary case under any applicable bankruptcy, insolvency, receivership, conservatorship or other similar law now or hereafter in effect, or shall consent to the entry of an order for relief in an involuntary case under any such law, or shall consent to the appointment of or taking possession by a receiver, liquidator, assignee, trustee, custodian, conservator, sequestrator (or other similar official) of the Company or the Significant Subsidiary or of any substantial part of the property of the Company or the Significant Subsidiary, or shall make any general assignment for the benefit of creditors, or shall take any corporate action in furtherance of any of the foregoing. SECTION 5.2 Acceleration of Maturity; Rescission and Annulment. If an Event of Default (other than an Event of Default specified in clause (g) of Section 5.1) occurs and is continuing, then in every such case the Trustee or the Holders of not less than 25% in principal amount of the Outstanding Senior Notes may declare the principal amount of all of the Senior Notes to be due and payable immediately, by a notice in writing to the Company (and to the Trustee if given by Holders), and upon any such declaration such principal amount shall become immediately due and payable. If any Event of Default specified in clause (g) of Section 5.1 occurs, the principal amount of all of the Senior Notes shall automatically become and be immediately due and payable without any declaration or other act on the part of the Trustee or any Holder. At any time after such a declaration of acceleration with respect to Senior Notes has been made and before a judgment or decree for payment of the money due has been obtained by the Trustee as hereinafter in this Article provided, the Holders of a majority in principal amount of the Outstanding Senior Notes, by written notice to the Company and the Trustee, may rescind and annul such declaration and its consequences if: (1) the Company has paid or deposited with the Trustee a sum sufficient to pay: (A) all overdue interest (including any Additional Interest) on all Senior Notes, (B) the principal of (and premium, if any, on) any Senior Notes which have become due otherwise than by such declaration of acceleration and any interest (including any 50 Additional Interest) thereon at the rate or rates prescribed therefor in such Senior Notes, (C) to the extent that payment of such interest is lawful, interest upon overdue interest at the rate or rates prescribed therefor in such Senior Notes, and (D) all sums paid or advanced by the Trustee hereunder and the reasonable, expenses, disbursements and advances of the Trustee's agents and counsel; and (2) all Events of Default with respect to Senior Notes, other than the non-payment of the principal of Senior Notes which have become due solely by such declaration of acceleration, have been cured or waived as provided in Section 5.13. No such rescission shall affect any subsequent default or impair any right consequent thereon. SECTION 5.3 Collection of Indebtedness and Suits for Enforcement by Trustee. The Company covenants that if: (1) Default is made in the payment of any interest (including any Additional Interest) on any Senior Note when such interest becomes due and payable and such Default continues for a period of 30 days, or (2) Default is made in the payment of the principal of (or premium, if any, on) any Senior Note at the Maturity thereof, the Company will, upon demand of the Trustee, pay to it, for the benefit of the Holders of such Senior Notes, the whole amount then due and payable on such Senior Notes for principal and any premium and interest (including any Additional Interest) and, to the extent that payment of such interest shall be legally enforceable, interest on any overdue principal and premium and on any overdue interest (including any Additional Interest), at the rate or rates prescribed therefor in such Senior Notes, and, in addition thereto, such further amount as shall be sufficient to cover the costs and expenses of collection, including the reasonable expenses, disbursements and advances of the Trustee's agents and counsel. If the Company fails to pay such amounts forthwith upon such demand, the Trustee, in its own name and as trustee of an express trust, may (or, at the direction of Holders of not less than 25% of the Outstanding Senior Notes shall), in addition to any other remedies available to it, institute a judicial proceeding for the collection of the sums so due and unpaid and may prosecute such proceeding to judgment or final decree, and may enforce the same against the Company or any other obligor upon the Senior Notes and collect the moneys adjudged or decreed to be payable in the manner provided by law out of the property of the Company or any other obligor upon the Senior Notes, wherever situated. 51 If an Event of Default with respect to Senior Notes occurs and is continuing, the Trustee may in its discretion proceed to protect and enforce its rights and the rights of the Holders of Senior Notes by such appropriate judicial proceedings as the Trustee shall deem most effectual to protect and enforce any such rights, whether for the specific enforcement of any covenant or agreement in this Indenture or in aid of the exercise of any power granted herein, or to enforce any other proper remedy. SECTION 5.4 Trustee May File Proofs of Claim. In case of any judicial proceeding relative to the Company (or any other obligor upon the Senior Notes), its property or its creditors, the Trustee shall be entitled and empowered, by intervention in such proceeding or otherwise, to take any and all actions authorized under the Trust Indenture Act in order to have claims of the Holders and the Trustee allowed in any such proceeding. In particular, the Trustee shall be authorized to collect and receive any moneys or other property payable or deliverable on any such claims and to distribute the same; and any custodian, receiver, assignee, trustee, liquidator, sequestrator or other similar official 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 the reasonable expenses, disbursements and advances of the Trustee's agents and counsel, and any other amounts due the Trustee under Section 6.7. No provision of this Indenture 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 Senior Notes or the rights of any Holder thereof or to authorize the Trustee to vote in respect of the claim of any Holder in any such proceeding; provided, however, the Trustee may vote on behalf of the Holders for the election of a trustee in bankruptcy or similar official and may be a member of a creditors' or other similar committee. SECTION 5.5 Trustee May Enforce Claims Without Possession of Senior Notes. All rights of action and claims under this Indenture or the Senior Notes may be prosecuted and enforced by the Trustee without the possession of any of the Senior Notes or the production thereof in any proceeding relating thereto, and any such proceeding instituted by the Trustee shall be brought in its own name as trustee of an express trust, and any recovery of judgment shall, after provision for the payment of the reasonable expenses, disbursements and advances of the Trustee's agents and counsel, be for the ratable benefit of the Holders of the Senior Notes in respect of which such judgment has been recovered. SECTION 5.6 Application of Money Collected. Any money collected by the Trustee pursuant to this Article shall be applied in the following order, at the date or dates fixed by the Trustee and, in case of the distribution of such money on account of principal or any premium or interest (including any Additional Interest), upon presentation of the Senior Notes and the notation thereon of the payment if only partially paid and upon surrender thereof if fully paid: 52 FIRST: To the payment of all amounts due the Trustee under Section 6.7; SECOND: To the payment of the amounts then due and unpaid for principal of and any premium and interest (including any Additional Interest) on the Senior Notes in respect of which or for the benefit of which such money has been collected, ratably, without preference or priority of any kind, according to the amounts due and payable on such Senior Notes for principal and any premium and interest (including any Additional Interest), respectively; and THIRD: To the Company. SECTION 5.7 Limitation on Suits. No Holder of any Senior Note shall have any right to institute any proceeding, judicial or otherwise, with respect to this Indenture, or for the appointment of a receiver or trustee, or for any other remedy hereunder, unless (1) such Holder has previously given written notice to the Trustee of a continuing Event of Default with respect to the Senior Notes; (2) the Holders of not less than 25% in principal amount of the Outstanding Senior Notes shall have made written request to the Trustee to institute proceedings in respect of such Event of Default in its own name as Trustee hereunder; (3) such Holder or Holders have offered to the Trustee reasonable security or indemnity satisfactory to it against the costs, expenses and liabilities to be incurred in compliance with such request; (4) the Trustee for 60 days after its receipt of such notice, request and offer of indemnity has failed to institute any such proceeding; and (5) no direction inconsistent with such written request has been given to the Trustee during such 60-day period by the Holders of a majority in principal amount of the Outstanding Senior Notes; it being understood and intended that no one or more of such Holders shall have any right in any manner whatever by virtue of, or by availing of, any provision of this Indenture to affect, disturb or prejudice the rights of any other of such Holders, or to obtain or to seek to obtain priority or preference over any other of such Holders or to enforce any right under this Indenture, except in the manner herein provided and for the equal and ratable benefit of all of such Holders. SECTION 5.8 Unconditional Right of Holders to Receive Principal, Premium and Interest. Notwithstanding any other provision in this Indenture, the Holder of any Senior Note shall have the right, which is absolute and unconditional, to receive payment of the principal of and any premium and (subject to Section 3.8) any interest (including any Additional Interest) on such Senior Note on the 53 Stated Maturity or maturities expressed in such Senior Note (or, in the case of redemption, on the Redemption Date), and to institute suit for the enforcement of any such payment, and such rights shall not be impaired without the consent of such Holder. SECTION 5.9 Restoration of Rights and Remedies. If the Trustee or any Holder has instituted any proceeding to enforce any right or remedy under this Indenture and such proceeding has been discontinued or abandoned for any reason, or has been determined adversely to the Trustee or to such Holder, then and in every such case, subject to any determination in such proceeding, the Company, the Trustee and the Holders shall be restored severally and respectively to their former positions hereunder and thereafter all rights and remedies of the Trustee and the Holders shall continue as though no such proceeding had been instituted. SECTION 5.10 Rights and Remedies Cumulative. Except as otherwise provided with respect to the replacement or payment of mutilated, destroyed, lost or stolen Senior Notes in the last paragraph of Section 3.7, no right or remedy herein conferred upon or reserved to the Trustee or to the Holders is intended to be exclusive of any other right or remedy, and every right and remedy shall, to the extent permitted by law, be cumulative and in addition to every other right and remedy given hereunder or now or hereafter existing at law or in equity or otherwise. The assertion or employment of any right or remedy hereunder, or otherwise, shall not prevent the concurrent assertion or employment of any other appropriate right or remedy. SECTION 5.11 Delay or Omission Not Waiver. No delay or omission of the Trustee or of any Holder of any Senior Notes to exercise any right or remedy accruing upon any Default shall impair any such right or remedy or constitute a waiver of any such Default or an acquiescence therein. Every right and remedy given by this Article or by law to the Trustee or to the Holders may be exercised from time to time, and as often as may be deemed expedient, by the Trustee or by the Holders, as the case may be. SECTION 5.12 Control by Holders. The Holders of a majority in principal amount of the Outstanding Senior Notes shall have the right to direct the time, method and place of conducting any proceeding for any remedy available to the Trustee, or exercising any trust or power conferred on the Trustee, with respect to the Senior Notes, provided that (1) such direction shall not be in conflict with any rule of law or with this Indenture, 54 (2) the Trustee may take any other action deemed proper by the Trustee which is not inconsistent with such direction, and (3) subject to the provisions of Section 6.1, the Trustee shall have the right to decline to follow any such direction if the Trustee in good faith shall, by a Responsible Officer or Officers of the Trustee, determine that the proceeding so directed would involve the Trustee in personal liability. SECTION 5.13 Waiver of Past Defaults. The Holders of not less than a majority in principal amount of the Outstanding Senior Notes may on behalf of the Holders of all the Senior Notes waive any past Default hereunder and its consequences, except a Default: (1) in the payment of the principal of or any premium or interest (including any Additional Interest) on any Senior Note, or (2) in respect of a covenant or provision hereof which under Article Eight cannot be modified or amended without the consent of the Holder of each Outstanding Senior Note affected. Upon any such waiver, such default shall cease to exist, and any Event of Default arising therefrom shall be deemed to have been cured, for every purpose of this Indenture; but no such waiver shall extend to any subsequent or other default or impair any right consequent thereon. SECTION 5.14 Undertaking for Costs. The parties to this Indenture agree, and each Holder of any Senior Notes by his acceptance thereof shall be deemed to have agreed, that any court may in its discretion require, 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, suffered or omitted by it as Trustee, the filing by any party litigant in such suit of an undertaking to pay the costs of such suit, and that such court may in its discretion assess reasonable costs, including reasonable attorneys' fees and expenses, against any party litigant in such suit, having due regard to the merits and good faith of the claims or defenses made by such party litigant; but the provisions of this Section shall not apply to any suit instituted by the Company, to any suit instituted by the Trustee, to any suit instituted by any Holder, or group of Holders, holding in the aggregate more than 10% in principal amount of the Outstanding Senior Notes, or to any suit instituted by any Holder for the enforcement of the payment of the principal of (or premium, if any) or interest (including any Additional Interest) on any Senior Notes on or after the Stated Maturity or maturities expressed in such Senior Notes (or, in the case of redemption, on or after the Redemption Date). SECTION 5.15 Waiver of Usury, Stay or Extension Laws. The Company and each of the Guarantors covenants (to the extent that it may lawfully do so) that it will not at any time insist upon, or plead, or in any manner whatsoever claim or take the benefit or advantage of, any usury, stay 55 or extension law wherever enacted, now or at any time hereafter in force, which may affect the covenants or the performance of this Indenture; and the Company and each of the Guarantors (to the extent that it may lawfully do so) hereby expressly waives all benefit or advantage of any such law and covenants that it will not hinder, delay or impede the execution of any power herein granted to the Trustee, but will suffer and permit the execution of every such power as though no such law had been enacted. 56 ARTICLE SIX THE TRUSTEE SECTION 6.1 Certain Duties and Responsibilities. The duties and responsibilities of the Trustee shall be as provided by the Trust Indenture Act. Whether or not therein expressly so provided, every provision of this Indenture relating to the conduct or affecting the liability of or affording protection to the Trustee shall be subject to the provisions of this Section. If an Event of Default occurs (and is not cured), the Trustee, in the exercise of its power, must use the degree of care of a prudent man in the conduct of his own affairs. Subject to the requirement in the foregoing sentence, the Trustee is under no obligation to exercise any of its rights or powers under this Indenture at the request of any Holder, unless such Holder shall have offered to the Trustee security and indemnity satisfactory to it against any loss, liability or expense and then only to the extent required by the terms of this Indenture. No provision of this Indenture shall require the Trustee to expend or risk its own funds or otherwise incur any financial liability in the performance of any of its duties hereunder, or in the exercise of any of its rights or powers, if it shall have reasonable grounds for believing that repayment of such funds or adequate indemnity against such risk of liability is not reasonably assured to it. Except during the continuance of an Event of Default, (i) the Trustee undertakes to perform such duties and only such duties as are specifically set forth in this Indenture, and no implied covenants or obligations shall be read into this Indenture against the Trustee; and (ii) in the absence of bad faith on its part, the Trustee may conclusively rely, as to the truth of the statements and the correctness of the opinions expressed therein, upon certificates or opinions furnished to the Trustee and conforming to the requirements of this Indenture. The Trustee shall not be liable for any error of judgment made in good faith by a Responsible Officer of the Trustee, unless it shall be proved that the Trustee was negligent in ascertaining the pertinent facts. The Trustee shall not be liable with respect to any action taken or omitted to be taken by it in good faith in accordance with the direction of the Holders or a majority in principal amount of the Outstanding Senior Notes relating to the time, method and place of conducting any proceeding for any remedy available to the Trustee, or exercising any trust power conferred upon the Trustee, under this Indenture. SECTION 6.2 Notice of Defaults. If a Default occurs and is continuing and is actually known to a Responsible Officer of the Trustee, the Trustee shall mail to each Holder notice of the Default as to and to the extent provided in the Trust Indenture Act. Except in the case of a Default in the payment of principal of, premium, if any, or interest (including any Additional Interest) on any Senior Note, the Trustee may withhold notice if and so long as the board of directors, the executive committee or a trust committee of directors and/or Responsible Officers of the Trustee determines that withholding notice is in the interest of the Holders. 57 SECTION 6.3 Certain Rights of Trustee. Subject to the provisions of Section 6.1: (a) the Trustee may conclusively rely and shall be protected in acting or refraining from acting upon any resolution, certificate, statement, instrument, opinion, report, notice, request, direction, consent, order, bond, debenture, note, other evidence of indebtedness or other paper or document believed by it to be genuine and to have been signed or presented by the proper party or parties; (b) any request or direction of the Company mentioned herein shall be sufficiently evidenced by a Company Request or Company Order and any resolution of the Board of Directors of the Company may be sufficiently evidenced by a Board Resolution; (c) whenever in the administration of this Indenture the Trustee shall deem it desirable that a matter be proved or established prior to taking, suffering or omitting any action hereunder, the Trustee (unless other evidence be herein specifically prescribed) may, in the absence of bad faith on its part, rely upon an Officers' Certificate; (d) 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 in respect of any action taken, suffered or omitted by it hereunder in good faith and in reliance thereon; (e) 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 pursuant to this Indenture, unless such Holders shall have offered to the Trustee reasonable security or indemnity satisfactory to it against the costs, expenses and liabilities which might be incurred by it in compliance with such request or direction; (f) 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 may see 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, at the sole cost 58 of the Company and shall incur no liability or additional liability of any kind by reason of such inquiry or investigation; (g) the Trustee may execute any of the trusts or powers hereunder or perform any duties hereunder either directly or by or through agents or attorneys and the Trustee shall not be responsible for any misconduct or negligence on the part of any agent or attorney appointed with due care by it hereunder; (h) the permissive rights of the Trustee to do things enumerated in this Indenture shall not be construed as a duty, and the Trustee shall not be answerable for other than its negligent action, negligent omission or its willful misconduct; and (i) the Trustee shall not be charged with knowledge of any Event of Default under Section 5 (other than an Event of Default under Section 5.1(a) or (b) if the Trustee is also the Paying Agent with respect to the Senior Notes) hereof unless either (1) a Responsible Officer of the Trustee shall have actual knowledge thereof or (2) the Trustee shall have received notice thereof in accordance with Section 1.5 hereof from the Company or a Holder. SECTION 6.4 Not Responsible for Recitals or Issuance of Senior Notes. The recitals contained herein and in the Senior Notes, except the Trustee's certificates of authentication, shall be taken as the statements of the Company, and the Trustee or any Authenticating Agent assumes no responsibility for their correctness. The Trustee makes no representations as to the validity or sufficiency of this Indenture or of the Senior Notes. The Trustee or any Authenticating Agent shall not be accountable for the use or application by the Company of Senior Notes or the proceeds thereof. SECTION 6.5 May Hold Senior Notes. The Trustee, any Authenticating Agent, any Paying Agent, any Senior Note Registrar or any other agent of the Company, in its individual or any other capacity, may become the owner or pledgee of Senior Notes and, subject to Sections 6.8 and 6.13, may otherwise deal with the Company with the same rights it would have if it were not Trustee, Authenticating Agent, Paying Agent, Senior Note Registrar or such other agent. SECTION 6.6 Money Held in Trust. Money held by the Trustee in trust hereunder need not be segregated from other funds except to the extent required by law. The Trustee shall be under no liability for interest on any money received by it hereunder except as otherwise agreed in writing with the Company. SECTION 6.7 Compensation and Reimbursement. 59 The Company and the Guarantors, jointly and severally, agree: (1) to pay to the Trustee such compensation as from time to time agreed in writing with the Trustee for all services rendered by it hereunder (which compensation shall not be limited by any provision of law in regard to the compensation of a trustee of an express trust); (2) except as otherwise expressly provided herein, to reimburse the Trustee upon its request for all reasonable expenses, disbursements and advances incurred or made by the Trustee in accordance with any provision of this Indenture (including the reasonable compensation and the expenses and disbursements of its agents and counsel), except any such expense, disbursement or advance as shall be determined to have been caused by its own negligence or bad faith or willful misconduct; (3) to indemnify each of the Trustee or any predecessor Trustee and their agents for, and to hold them harmless against, any and all loss, liability, damage, claim or expense, including taxes (other than taxes based on the income of the Trustee) incurred without negligence, willful misconduct or bad faith on its part, arising out of or in connection with the acceptance or administration of the trust or trusts hereunder, including the costs and expenses of defending itself against any claim or liability in connection with the exercise or performance of any of its powers or duties hereunder; (4) to secure the Company's obligations under this Section, the Trustee shall have a lien prior to the Senior Notes upon all money or property held or collected by the Trustee in its capacity as Trustee, except for such money and property which is held in trust to pay principal (and premium, if any) or interest (including any Additional Interest) on particular Senior Notes; (5) when the Trustee incurs any expenses or renders any services after the occurrence of an Event of Default specified in Section 5.1(g), such expenses and the compensation for such services are intended to constitute expenses of administration under the Bankruptcy Code or any similar federal or state law for the relief of debtors; and (6) that the provisions of this Section 6.7 shall survive the termination of this Indenture or the appointment of a successor trustee. SECTION 6.8 Disqualification; Conflicting Interests. If the Trustee has or shall acquire a conflicting interest within the meaning of the Trust Indenture Act, the Trustee shall either eliminate such 60 interest or resign, to the extent and in the manner provided by, and subject to the provisions of, the Trust Indenture Act and this Indenture. SECTION 6.9 Corporate Trustee Required; Eligibility. There shall at all times be a Trustee hereunder which shall be a Person that is eligible pursuant to the Trust Indenture Act to act as such and has a combined capital and surplus of at least $50,000,000. If such Person publishes reports of condition at least annually, pursuant to law or to the requirements of its supervising or examining authority, then for the purposes of this Section, the combined capital and surplus of such Person shall be deemed to be its combined capital and surplus as set forth in its most recent report of condition so published. If at any time the Trustee shall cease to be eligible in accordance with the provisions of this Section, it shall resign immediately in the manner and with the effect hereinafter specified in this Article. SECTION 6.10 Resignation and Removal; Appointment of Successor. (a) No resignation or removal of the Trustee and no appointment of a successor Trustee pursuant to this Article shall become effective until the acceptance of appointment by the successor Trustee in accordance with the applicable requirements of Section 6.11. (b) The Trustee may resign at any time with respect to the Senior Notes by giving written notice thereof to the Company. If the instrument of acceptance by a successor Trustee required by Section 6.11 shall not have been delivered to the Trustee within 30 days after the giving of such notice of resignation, the resigning Trustee may petition, at the expense of the Company, any court of competent jurisdiction for the appointment of a successor Trustee with respect to the Senior Notes. (c) The Trustee may be removed at any time with respect to the Senior Notes by Act of the Holders of a majority in principal amount of the Outstanding Senior Notes, delivered to the Trustee and to the Company. If the instrument of acceptance by a successor Trustee required by Section 6.11 shall not have been delivered to the Trustee within 30 days after the giving of such notice of removal, the Trustee being removed may petition, at the expense of the Company, any court of competent jurisdiction for the appointment of a successor Trustee with respect to the Senior Notes. (d) If at any time: (1) the Trustee shall fail to comply with Section 6.8 after written request therefor by the Company or by any Holder who has been a bona fide Holder of a Senior Note for at least six months, or 61 (2) the Trustee shall cease to be eligible under Section 6.9 and shall fail to resign after written request therefor by the Company or by any such Holder, or (3) the Trustee shall become incapable of acting or shall be adjudged a bankrupt or insolvent or a receiver of the Trustee or of its property shall be appointed or any public officer shall take charge or control of the Trustee or of its property or affairs for the purpose of rehabilitation, conservation or liquidation, then, in any such case, (i) the Company by a Board Resolution may remove the Trustee with respect to the Senior Notes, or (ii) subject to Section 5.14, any Holder who has been a bona fide Holder of a Senior Note for at least six months may, on behalf of himself and all others similarly situated, petition any court of competent jurisdiction for the removal of the Trustee with respect to all Senior Notes and the appointment of a successor Trustee or Trustees. (e) If the Trustee shall resign, be removed or become incapable of acting, or if a vacancy shall occur in the office of Trustee for any cause, the Company, by a Board Resolution, shall promptly appoint a successor Trustee and shall comply with the applicable requirements of Section 6.11. If, within one year after such resignation, removal or incapability, or the occurrence of such vacancy, a successor Trustee shall be appointed by Act of the Holders of a majority in principal amount of the Outstanding Senior Notes delivered to the Company and the retiring Trustee, the successor Trustee so appointed shall, forthwith upon its acceptance of such appointment in accordance with the applicable requirements of Section 6.11, become the successor Trustee and to that extent supersede the successor Trustee appointed by the Company. If no successor Trustee shall have been so appointed by the Company or the Holders and accepted appointment in the manner required by Section 6.11, any Holder who has been a bona fide Holder of a Senior Note for at least six months may, on behalf of himself and all others similarly situated, petition any court of competent jurisdiction for the appointment of a successor Trustee. (f) The Company shall give notice of each resignation and each removal of the Trustee and each appointment of a successor Trustee to all Holders of Senior Notes in the manner provided in Section 1.6. Each notice shall include the name of the successor Trustee and the address of its Corporate Trust Office. SECTION 6.11 Acceptance of Appointment by Successor. (a) In case of the appointment hereunder of a successor Trustee, every such successor Trustee so appointed shall execute, acknowledge and deliver to the Company 62 and to the retiring Trustee an instrument in writing accepting such appointment, and thereupon the resignation or removal of the retiring Trustee shall become effective and such successor Trustee, without any further act, deed or conveyance, shall become vested with all the rights, powers, trusts and duties of the retiring Trustee; but, on the request of the Company or the successor Trustee, such retiring Trustee shall, upon payment of its charges, execute and deliver an instrument in writing transferring to such successor Trustee all the rights, powers and trusts of the retiring Trustee and shall duly assign, transfer and deliver to such successor Trustee all property and money held by such retiring Trustee hereunder. (b) Upon request of any such successor Trustee, the Company shall execute any and all instruments for more fully and certainly vesting in and confirming to such successor Trustee all such rights, powers and trusts referred to in paragraph (a) of this Section. (c) No successor Trustee shall accept its appointment unless at the time of such acceptance such successor Trustee shall be eligible under this Article. SECTION 6.12 Merger, Conversion, Consolidation or Succession to Business Any corporation into which the Trustee may be merged or converted or with which it may be consolidated, or any corporation resulting from any merger, conversion or consolidation to which the Trustee shall be a party, or any corporation succeeding to all or substantially all the corporate trust business of the Trustee, shall be the successor of the Trustee hereunder, provided such corporation shall be otherwise eligible under this Article, without the execution or filing of any paper or any further act on the part of any of the parties hereto. In case any Senior Notes shall have been authenticated, but not delivered, by the Trustee then in office, any successor by merger, conversion or consolidation to such authenticating Trustee may adopt such authentication and deliver the Senior Notes so authenticated with the same effect as if such successor Trustee had itself authenticated such Senior Notes. SECTION 6.13 Preferential Collection of Claims Against Company. If and when the Trustee shall be or become a creditor of the Company (or any other obligor upon the Senior Notes), the Trustee shall be subject to the provisions of the Trust Indenture Act regarding the collection of claims against the Company (or any such other obligor). SECTION 6.14 Appointment of Authenticating Agent. The Trustee may appoint an Authenticating Agent or Agents (which may be an affiliate of the Company) with respect to the Senior Notes which shall be authorized to act on behalf of the Trustee to authenticate Senior Notes issued upon exchange, registration of transfer or partial redemption thereof (but not 63 upon original issuance or pursuant to Section 3.7), and Senior Notes so authenticated shall be entitled to the benefits of this Indenture and shall be valid and obligatory for all purposes as if authenticated by the Trustee hereunder. Wherever reference is made in this Indenture to the authentication and delivery of Senior Notes by the Trustee or the Trustee's certificate of authentication, such reference shall be deemed to include authentication and delivery on behalf of the Trustee by an Authenticating Agent and a certificate of authentication executed on behalf of the Trustee by an Authenticating Agent. Each Authenticating Agent shall be acceptable to the Company and shall at all times be a corporation organized and doing business under the laws of the United States of America, any state thereof or the District of Columbia, authorized under such laws to act as Authenticating Agent, having a combined capital and surplus of not less than $50,000,000 and subject to supervision or examination by federal or state authority. If such Authenticating Agent publishes reports of condition at least annually, pursuant to law or to the requirements of said supervising or examining authority, then for the purposes of this Section, the combined capital and surplus of such Authenticating Agent shall be deemed to be its combined capital and surplus as set forth in its most recent report of condition so published. If at any time an Authenticating Agent shall cease to be eligible in accordance with the provisions of this Section, such Authenticating Agent shall resign immediately in the manner and with the effect specified in this Section. Any corporation into which an Authenticating Agent may be merged or converted or with which it may be consolidated, or any corporation resulting from any merger, conversion or consolidation to which such Authenticating Agent shall be a party, or any corporation succeeding to all or substantially all the corporate agency or corporate trust business of an Authenticating Agent, shall continue to be an Authenticating Agent, provided such corporation shall be otherwise eligible under this Section, without the execution or filing of any paper or any further act on the part of the Trustee or the Authenticating Agent. An Authenticating Agent may resign at any time by giving written notice thereof to the Trustee and to the Company. The Trustee may at any time terminate the agency of an Authenticating Agent by giving written notice thereof to such Authenticating Agent and to the Company. Upon receiving such a notice of resignation or upon such a termination, or in case at any time such Authenticating Agent shall cease to be eligible in accordance with the provisions of this Section, the Trustee may appoint a successor Authenticating Agent which shall be acceptable to the Company and shall mail written notice of such appointment by first-class mail, postage prepaid, to all Holders of Senior Notes with respect to which such Authenticating Agent will serve, as their names and addresses appear in the Senior Note Register. Any successor Authenticating Agent upon acceptance of its appointment hereunder shall become vested with all the rights, powers and duties of its predecessor hereunder, with like effect as if originally named as an Authenticating Agent. No successor Authenticating Agent shall be appointed unless eligible under the provisions of this Section. The Company agrees to pay to each Authenticating Agent from time to time reasonable compensation for its services under this Section. 64 If an appointment is made pursuant to this Section, the Senior Notes may have endorsed thereon, in addition to the Trustee's certificate of authentication, an alternative certificate of authentication in the following form: This is one of the Senior Notes designated and referred to in the within mentioned Indenture. THE BANK OF NEW YORK, as Trustee By:___________________________ As Authenticating Agent By:___________________________ Authorized Signatory 65 ARTICLE SEVEN HOLDERS' LISTS AND REPORTS BY TRUSTEE AND COMPANY SECTION 7.1 Company to Furnish Trustee Names and Addresses of Holders; Trustee to Furnish Senior Note Register. (a) The Company will furnish or cause to be furnished to the Trustee: (i) semi-annually, not later than five Business Days after each Regular Record Date, a list, in such form as the Trustee may reasonably require, of the names and addresses of the Holders of Senior Notes as of such Regular Record Date, and (ii) at such other times as the Trustee may request in writing, within 30 days after the receipt by the Company of any such request, a list of similar form and content as of a date not more than 15 days prior to the time such list is furnished; excluding from any such list names and addresses received by the Trustee in its capacity as Senior Note Registrar. (b) The Trustee shall furnish to the Company a copy of the list maintained as the Senior Note Register from time to time as requested by the Company in writing. SECTION 7.2 Preservation of Information; Communications to Holders. (a) The Trustee shall preserve, in as current a form as is reasonably practicable, the names and addresses of Holders contained in the most recent list furnished to the Trustee as provided in Section 7.1 and the names and addresses of Holders received by the Trustee in its capacity as Senior Note Registrar. The Trustee may destroy any list furnished to it as provided in Section 7.1 upon receipt of a new list so furnished. (b) The rights of the Holders to communicate with other Holders with respect to their rights under this Indenture or under the Senior Notes, and the corresponding rights and privileges of the Trustee, shall be as provided by the Trust Indenture Act. (c) Every Holder of Senior Notes, by receiving and holding the same, agrees with the Company and the Trustee that neither the Company nor the Trustee nor any agent of either of them shall be held accountable by reason of any disclosure of information as to names and addresses of Holders made pursuant to the Trust Indenture Act. SECTION 7.3 Reports by Trustee. 66 (a) The Trustee shall transmit to Holders such reports concerning the Trustee and its actions under this Indenture as may be required pursuant to the Trust Indenture Act at the times and in the manner provided pursuant thereto. If required by Section 313(a) of the Trust Indenture Act, the Trustee shall, within sixty (60) days after each May 15 following the date of this Indenture deliver to Holders a brief report, dated as of such May 15, which complies with the provisions of such Section 313(a). To the extent that any such report is required by the Trust Indenture Act with respect to any 12-month period, such report shall cover the 12-month period ending March 15 and shall be transmitted by the next succeeding May 15. (b) A copy of each such report shall, at the time of such transmission to Holders, be filed by the Trustee with each securities exchange upon which any Senior Notes are listed, with the SEC and with the Company. The Company will promptly notify the Trustee when any Senior Notes are listed on any securities exchange. SECTION 7.4 Reports by Company. The Company shall file with the SEC and shall furnish to the Trustee and the Holders, within 15 days after it files them with the SEC, copies of its annual report and the information, documents and other reports which the Company is required to file with the SEC pursuant to Section 13 or 15(d) of the Exchange Act. Notwithstanding that the Company may not be required to remain subject to the reporting requirements of Section 13 or 15(d) of the Exchange Act, the Company shall continue to file with the SEC and to provide to the Trustee and the Holders the annual reports and the information, documents and other reports which are specified in Section 13 or 15(d) of the Exchange Act and applicable to a US corporation subject to such sections, such information, documents and other reports to be filed and provided at the times specified for the filing of such information, documents and reports under such section. The Company also shall comply with the other provisions of Section 314(a) of the Trust Indenture Act. Delivery of such reports, information and documents to the Trustee is for informational purposes only and the Trustee's receipt of such shall not constitute constructive notice of any information contained therein or determinable from information contained therein, including the Company's compliance with any of its covenants hereunder (as to which the Trustee is entitled to rely exclusively on Officers' Certificates). 67 ARTICLE EIGHT AMENDMENTS, SUPPLEMENTS AND WAIVERS SECTION 8.1 Supplemental Indentures Without Consent of Holders. Without the consent of any Holders, the Company and the Guarantors, when authorized by a Board Resolution, and the Trustee, at any time and from time to time, may enter into one or more indentures supplemental hereto or amendments of the Subsidiary Guarantees, in form satisfactory to the Trustee, for any of the following purposes: (a) to evidence the succession of another Person to the Company or any Guarantor, and the assumption by any such successor of the covenants of the Company or such Guarantor herein and in the Senior Notes; (b) to provide for uncertificated Senior Notes in addition to or in place of certificated Senior Notes (provided, that such uncertificated Senior Notes are issued in registered form for purposes of Section 163(f) of the Code, or in a manner such that the uncertificated Senior Notes are described in Section 163(f)(2)(B) of the Code); (c) to add to the covenants of the Company for the benefit of the Holders or to surrender any right or power conferred upon the Company hereunder and under the Senior Notes; (d) to cure any ambiguity, to correct or supplement any provision herein that may be defective or inconsistent with any other provision herein or in the Senior Notes, or to make any other provisions with respect to matters or questions arising under this Indenture or under the Senior Notes that shall not be inconsistent with the provisions of this Indenture; provided that, in each case, such provisions shall not adversely affect the interests of the Holders; (e) to evidence, and provide for the acceptance of, the appointment of a successor Trustee hereunder; (f) to add any additional Events of Default; (g) to provide for the issuance of Additional Notes in accordance with the limitations set forth in this Indenture; (h) to secure the Senior Notes or add a Guarantor; or (i) to comply with any requirement of the SEC or state securities regulators in connection with the qualification of this Indenture under the Trust Indenture Act or any registration or qualification of the Senior Notes under the Securities Act or state securities laws. SECTION 8.2 Supplemental Indentures with Consent of Holders. 68 (a) Except as otherwise provided in Section 8.2(b), with the written consent of the Holders of a majority in principal amount of the Outstanding Senior Notes, by Act of such Holders delivered to the Company and the Trustee, the Company and any Guarantor, when authorized by a Board Resolution, and the Trustee may enter into an indenture or indentures supplemental hereto for the purpose of adding any provisions to or changing in any manner or eliminating or waiving any of the provisions of this Indenture or of modifying in any manner the rights of the Holders under this Indenture; provided, however, that no such supplemental indenture shall, without the consent of the Holder of each Outstanding Senior Note affected thereby, (1) change the Stated Maturity of the principal of, or any installment of interest on, any Senior Note, or reduce the principal amount thereof, premium, if any, or the rate of interest (including any Additional Interest) thereon, or change the coin or currency in which the principal of any Senior Note or any premium or the interest (including any Additional Interest) thereon is payable, or impair the right to institute suit for the enforcement of any such payment after the Stated Maturity; (2) reduce the percentage in principal amount of the Outstanding Senior Notes the consent of whose Holders is required for any such amendment or modification, or the consent of whose Holders is required for any waiver (of compliance with the provisions of this Indenture or Defaults hereunder and their consequences) provided for in this Indenture; (3) modify any provision of Section 11.2 or the definitions used therein if the effect of such modification or waiver is to decrease the amount of any payment required to be made by the Company thereunder or extend the maturity date of such payment; (4) modify any of the provisions of this Section 8.2 or Section 5.13 relating to supplemental indentures requiring the consent of Holders or relating to the waiver of past Defaults or relating to the waiver of certain covenants, except to increase any such percentage or to provide that certain other provisions of this Indenture cannot be modified or waived without the consent of the Holder of each Senior Note affected thereby; 69 (5) release any Guarantor from any of its obligations under its Subsidiary Guarantee or this Indenture, except in accordance with the terms of this Indenture; (6) except as otherwise permitted under the provisions of Article Ten, consent to the assignment or transfer by the Company of any of its rights and obligations under this Indenture; or (7) waive a Default in payment with respect to the Senior Notes (other than a Default in payment that is due solely because of the acceleration of the Maturity of the Senior Notes). (b) It shall not be necessary for any Act of Holders under this Section to approve the particular form of any proposed supplemental indenture, but it shall be sufficient if such Act and such notice shall approve the substance thereof. SECTION 8.3 Execution of Supplemental Indentures. In executing, or accepting the additional trusts created by, any supplemental indenture permitted by this Article Eight or the modifications thereby of the trusts created by this Indenture, the Trustee shall receive, and (subject to Section 6.1) shall be fully protected in relying upon, an Opinion of Counsel stating that the execution of such supplemental indenture is authorized or permitted by this Indenture. The Trustee may, but shall not be obligated to, enter into any such supplemental indenture which affects the Trustee's own rights, duties or immunities under this Indenture or otherwise. SECTION 8.4 Effect of Supplemental Indentures. Upon the execution of any supplemental indenture under this Article, this Indenture shall be modified in accordance therewith, and such supplemental indenture shall form a part of this Indenture for all purposes; and every Holder of Senior Notes theretofore or thereafter authenticated and delivered hereunder shall be bound thereby and entitled to the benefits thereof. SECTION 8.5 Conformity with Trust Indenture Act. Every supplemental indenture executed pursuant to this Article Eight shall conform to the requirements of the Trust Indenture Act as then in effect. SECTION 8.6 Reference in Senior Notes to Supplemental Indentures. Senior Notes authenticated and delivered after the execution of any supplemental indenture pursuant to this Article Eight may, and shall if required by the Trustee, bear a notation in form acceptable to the Trustee as to any matter provided for in such supplemental indenture. If the Company shall so determine, new Senior Notes so modified as to conform, in the opinion of the Trustee and the Board of Directors, to any such supplemental indenture may be 70 prepared and executed by the Company and authenticated and delivered by the Trustee in exchange for Outstanding Senior Notes. SECTION 8.7 Notice of Supplemental Indenture. After an supplemental indenture hereunder becomes effective, the Company shall mail to Holders a notice briefly describing such supplemental indenture; provided, that the failure to give such notice to all Holders, or any defect therein, will not impair or affect the validity of the supplemental indenture. 71 ARTICLE NINE COVENANTS SECTION 9.1 Payment of Principal, Premium and Interest. The Company covenants and agrees for the benefit of the Holders that it will duly and punctually pay the principal of (and premium, if any, on) and interest (including any Additional Interest) on the Senior Notes in accordance with the terms of the Senior Notes and this Indenture. The Senior Notes shall be included in the Same-Day Funds Settlement System or equivalent system of the Depositary until maturity to the extent such systems are available. Each Global Senior Note will be paid in accordance with the provisions of Section 4.2 hereof. SECTION 9.2 Maintenance of Office or Agency. The Company will maintain an office or agency in a Place of Payment where Senior Notes may be presented or surrendered for payment and where Senior Notes may be surrendered for registration of transfer or exchange. Initially, the Company hereby designates the Corporate Trust Office for all such purposes. The Company will 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 and surrenders, notices and demands may be made or served at the Corporate Trust Office, and the Company hereby appoints the Trustee as its agent to receive all such presentations and surrenders. The Company may also from time to time designate one or more other offices or agencies where the Senior Notes may be presented or surrendered for any or all such purposes and may from time to time rescind such designations; provided, however, that no such designation or rescission shall in any manner relieve the Company of its obligation to maintain an office or agency in each Place of Payment for Senior Notes for such purposes. The Company will 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. SECTION 9.3 Money for Senior Notes Payments to Be Held in Trust. If the Company shall at any time act as its own Paying Agent with respect to the Senior Notes, it will, on or before each due date of the principal of or any premium or interest (including any Additional Interest) on any of the Senior Notes, segregate and hold in trust for the benefit of the Persons entitled thereto a sum sufficient to pay the principal and any premium and interest (including any Additional Interest) so becoming due until such sums shall be paid to such Persons or otherwise disposed of as herein provided and will promptly notify the Trustee of its action or failure to act. Whenever the Company shall have one or more Paying Agents for the Senior Notes, it will, prior to each due date of the principal of or any premium or interest (including any Additional Interest) on any Senior Notes, deposit with a Paying Agent, in immediately available funds, a sum sufficient to pay 72 such amount, such sum to be held as provided by the Trust Indenture Act, and (unless such Paying Agent is the Trustee) the Company will promptly notify the Trustee of its action or failure to act. The Company will cause each Paying Agent other than the Trustee to execute and deliver to the Trustee an instrument in which such Paying Agent shall agree with the Trustee, subject to the provisions of this Section that such Paying Agent will: (1) hold all sums held by it for the payment of principal of (and premium, if any) or interest (including any Additional Interest) on Senior Notes in trust for the benefit of the Persons entitled thereto until such sums shall be paid to such Persons or otherwise disposed of as herein provided; (2) give the Trustee notice of any default by the Company (or any other obligor upon the Senior Notes) in the making of any such payment of principal (and premium, if any) or interest (including any Additional Interest); and (3) at any time during the continuance of any such default, upon the written request of the Trustee, forthwith pay to the Trustee all sums so held in trust by such Paying Agent. The Company may at any time, for the purpose of obtaining the satisfaction and discharge of this Indenture or for any other purpose, pay, or by Company Order direct any Paying Agent to pay, to the Trustee all sums held in trust by the Company or such Paying Agent, such sums to be held by the Trustee upon the same trusts as those upon which such sums were held by the Company or such Paying Agent; and, upon such payment by any Paying Agent to the Trustee, such Paying Agent shall be released from all further liability with respect to such money. 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 or any premium or interest (including any Additional Interest) on any Senior Note and remaining unclaimed for two years after such principal, premium or interest (including any Additional Interest) has become due and payable shall be paid to the Company on Company Request, or (if then held by the Company) shall be discharged from such trust; and the Holder of such Senior Note shall thereafter, as an unsecured general creditor, 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, however, that the Trustee or such Paying Agent, before being required to make any such repayment, may at the expense of the Company cause to be published once, in a newspaper published in the English language, customarily published on each Business Day and of general circulation in the Borough of Manhattan, The City of New York, 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 publication, any unclaimed balance of such money then remaining will be repaid to the Company. SECTION 9.4 Statement by Officers as to Default. 73 (a) The Company and each Guarantor (to the extent such Guarantor is so required under the Trust Indenture Act) will deliver to the Trustee, within 120 days after the end of each fiscal year of the Company ending after the date hereof, an Officers' Certificate (one of the signers of which shall be the principal executive officer, principal financial officer or principal accounting officer of the Company), stating whether or not to the best knowledge of the signers thereof the Company or such Guarantor, as appropriate, is, or was during the preceding year, in Default in the performance and observance of any of the terms, provisions and conditions of this Indenture (without regard to any period of grace or requirement of notice provided hereunder) and, if the Company or such Guarantor, as appropriate, shall be or shall have been in Default, specifying all such Defaults and the nature and status thereof of which they may have knowledge. (b) When any Default has occurred and is continuing under this Indenture, or if the trustee for or the holder of any other evidence of Indebtedness of the Company or any Subsidiary gives notice or takes any other action with respect to a claimed default (other than with respect to Indebtedness in the principal amount of less than 5% of the Company's Consolidated Net Worth at the quarter end preceding the giving of such notice or taking of such action with respect to a claimed default), the Company shall deliver to the Trustee by registered or certified mail, or by facsimile transmission, confirmed by delivery of the original, an Officers' Certificate specifying such event, notice or other action and the action which the Company proposes to take with respect thereto within five Business Days of its occurrence. SECTION 9.5 Payment of Taxes and Other Claims. The Company will pay or discharge or cause to be paid or discharged, before the same shall become delinquent, (1) all taxes, assessments and governmental charges levied or imposed upon the Company or any Subsidiary or upon the income, profits or property of the Company or any Subsidiary, and (2) all lawful claims for labor, materials and supplies which, if unpaid, might by law become a lien upon the property of the Company or any Subsidiary; provided, however, that the Company shall not be required to pay or discharge or cause to be paid or discharged any such tax, assessment, charge or claim whose amount, applicability or validity is being contested in good faith by appropriate proceedings and for which adequate reserves (in the good faith judgment of the Board of Directors) have been made. SECTION 9.6 Maintenance of Properties. The Company will cause all properties owned by the Company or any Subsidiary or used or held for use in the conduct of its business or the business of any Subsidiary to be maintained and kept in good condition, repair and working order and supplied with all necessary equipment and will cause to be 74 made all necessary repairs, renewals, replacements, betterments and improvements thereof, all as in the judgment of the Company may be necessary so that the business carried on in connection therewith may be properly and advantageously conducted at all times; provided, however, that nothing in this Section shall prevent the Company or any Subsidiary from discontinuing the operation or maintenance of any of such properties if such discontinuance is, in the judgment of its Board of Directors, desirable in the conduct of its business or the business of the Company or such Subsidiary and not disadvantageous in any material respect to the Holders. SECTION 9.7 Corporate Existence; Keeping of Books. Subject to Article Ten, the Company will do or cause to be done all things necessary to preserve and keep in full force and effect the existence, rights (charter and statutory) and franchises of the Company and its Subsidiaries; provided, however, that the existence of any Subsidiary and any such right or franchise of the Company or any Subsidiary may be terminated if the Board of Directors shall determine that the preservation thereof is no longer desirable in the conduct of the business of the Company and its Subsidiaries and that the loss thereof is not and is not reasonably likely to be disadvantageous in any material respect to the Holders. The Company shall keep, and cause each Subsidiary to keep, proper books and records, in which full and correct entries shall be made of all financial transactions and the assets, liabilities and business of the Company and its Subsidiaries, in each case in accordance with GAAP. SECTION 9.8 Insurance. The Company will at all times maintain and will cause each of its Subsidiaries to maintain (either in the name of the Company or in such Subsidiary's own name) with financially sound and reputable insurers, insurance on all its properties in such amounts as management of the Company reasonably determines is appropriate under the circumstances. SECTION 9.9 Net Worth Maintenance. On the Issue Date, and at all times thereafter determined at the end of each fiscal quarter, the Company shall maintain Consolidated Net Worth equal to (a) $174.0 million plus (b) a cumulative amount equal to twenty-five percent (25%) of the Consolidated Net Income (but not loss), if any, of the Company and its Subsidiaries for each fiscal quarter commencing with the quarter after the Issue Date less (c) an amount equal to the difference between (x) the principal amount of Senior Notes Outstanding on the Issue Date and (y) the principal amount of Senior Notes Outstanding on the last day of the quarter for which the determination is being made (to a maximum deduction of $50.0 million pursuant to this clause (c)). 75 SECTION 9.10 Limitations on Indebtedness. (a) Except for the issuance of the Senior Notes on the Issue Date, the Company shall not incur, directly or indirectly, any Indebtedness or issue any Disqualified Capital Stock; provided, however, that the Company may incur Indebtedness or issue Disqualified Capital Stock if, on the date of such incurrence or issuance and after giving effect thereto, (i) no Default or Event of Default has occurred and is continuing or would result therefrom and (ii) the Leverage Ratio does not exceed 2.0 to 1.0. (b) The Company will not create, incur, issue, assume, guarantee or otherwise in any manner become directly or indirectly liable for or with respect to, or otherwise permit to exist, any Junior Indebtedness or Pari Passu Indebtedness (other than Acquired Indebtedness) unless the Stated Maturity of principal (or any required repurchase, redemption, defeasance or sinking fund payments) of such Junior Indebtedness or Pari Passu Indebtedness is after the final Stated Maturity of principal of the Senior Notes. (c) The Company will not permit any Subsidiary (other than the Atlas Pipeline Entities) to, directly or indirectly, incur any Indebtedness or issue any Disqualified Capital Stock. (d) The Company shall not incur any Indebtedness which would be senior in right of payment to the Senior Notes. (e) The foregoing provisions shall not apply to: (1) Permitted Acquisition Indebtedness of the Company and its Subsidiaries and Incurrence by the Company and its Subsidiaries of Indebtedness under the Wachovia Facility; (2) Permitted Repurchase Facilities of the Company and its Subsidiaries; (3) Guarantees by the Company or any of the Guarantors of Indebtedness of the Company or any of its Subsidiaries, other than the Atlas Pipeline Entities, that was permitted to be Incurred by another provision of this Indenture; (4) Intercompany Indebtedness owed by the Company to any of its Subsidiaries or owed by any Subsidiary to the Company; (5) Incurrence by the Guarantors of their of obligations under the Subsidiary Guarantees; (6) Non-Recourse Indebtedness of the Company and its Subsidiaries; 76 (7) Securities issued in a securitization by a Securitization Entity formed by or on behalf of the Company or its Subsidiaries, regardless of whether such securities are treated as indebtedness for tax purposes, provided that neither the Company nor any Subsidiary (other than the Securitization Entity formed solely for the purpose of such securitization) is directly or indirectly liable as a guarantor or otherwise (excluding the provision of Credit Support) for such securities or obligations of the Securitization Entity; (8) Unsecured working capital loans to Subsidiaries, not to exceed $5.0 million in the aggregate, provided, however, that such Indebtedness shall be considered to be Indebtedness of the Company for the purpose of the Leverage Ratio; (9) Acquired Indebtedness of Subsidiaries, provided, however, that such Acquired Indebtedness shall be considered to be Indebtedness of the Company for the purpose of the Leverage Ratio; (10) Indebtedness secured by Permitted Liens; (11) Hedging Obligations directly related to: (i) Indebtedness permitted to be incurred by the Company or its Subsidiaries pursuant to this Indenture; (ii) loans held by the Company or its Subsidiaries pending sale; or (iii) loans with respect to which the Company or any Subsidiary has an outstanding purchase offer or commitment, financing commitment or security interest; or (12) Indebtedness constituting a refinancing described in clause (b) of the definition of Permitted Payment. (f) For purposes of determining compliance with the foregoing covenant: (i) in the event that an item of Indebtedness meets the criteria of more than one of the types of Indebtedness described above, the Company, in good faith, will classify such item of Indebtedness and be required to include the amount and type of such Indebtedness in one of the above clauses; and (ii) an item of Indebtedness may be divided and classified in more than one of the types of Indebtedness described above. SECTION 9.11 Reserved. SECTION 9.12 Liquidity Maintenance. The Company shall, at all times when the Senior Notes are not rated in an investment grade category by one or more nationally recognized statistical 77 rating organizations, maintain Liquid Assets with a value equal to at least 100% of the required interest (including Additional Interest) payments due on the Senior Notes on the next succeeding semi-annual Interest Payment Date. Liquid Assets of a Subsidiary may be included in such calculation only to the extent that such Liquid Assets may at such time be distributed to the Company without restriction or notice to any Person. Such Liquid Assets shall not be the subject of any pledge, Lien, encumbrance or charge of any kind and shall not be used as collateral or security for Indebtedness for borrowed money or otherwise of the Company or its Subsidiaries nor may such Liquid Assets be used as reserves for any self-insurance maintained by the Company. SECTION 9.13 Limitations on Restricted Payments. The Company will not, and will not permit any Subsidiary to, directly or indirectly, make any Restricted Payment if, at the time of such Restricted Payment or after giving effect thereto, (a) a Default or Event of Default shall have occurred and be continuing; or (b) the Company would fail to maintain sufficient Liquid Assets to comply with the terms of the covenant set forth in Section 9.12 hereof; or (c) the aggregate amount of all Restricted Payments (the amount of such payments, if other than in cash, having been determined in good faith by the relevant Board of Directors, whose determination shall be conclusive and evidenced by a Board Resolution filed with the Trustee) declared and made after the Issue Date would exceed the sum of: (i) 25% of the aggregate Consolidated Net Income (or, if such Consolidated Net Income is a deficit, 100% of such deficit) of the Company accrued on a cumulative basis during the period beginning on July 1, 1997 and ending on the last day of the Company's last fiscal quarter ending prior to the date of such proposed Restricted Payment; plus (ii) the aggregate Net Cash Proceeds received by the Company as capital contributions (other than from a Subsidiary) after July 1, 1997; plus (iii) the aggregate Net Cash Proceeds and the Fair Market Value of property not constituting Net Cash Proceeds received by the Company from the issuance or sale (other than to a Subsidiary) of Qualified Capital Stock after the Issue Date; plus (iv) 100% of the amount of any Indebtedness of the Company or a Subsidiary that is issued after the Issue Date that is thereafter 78 converted into or exchanged for Qualified Capital Stock of the Company; or (d) the Unsecured Debt Coverage Ratio for the Company for the most recently ended four full fiscal quarters for which internal financial statements are available immediately preceding the date of such Restricted Payment is less than 2.00 to 1.00, determined after giving effect to such Restricted Payment; provided, however, that the foregoing provisions will not prevent (y) the payment of a dividend within 60 days after the date of its declaration if at the date of declaration such payment was permitted by the foregoing provisions or (z) any Permitted Payment. SECTION 9.14 Limitations on Dividends and Other Payment Restrictions Affecting Subsidiaries. The Company will not, and will not permit any of its Subsidiaries (other than a Securitization Entity or an Atlas Pipeline Entity) to, create, assume or otherwise cause or suffer to exist or to become effective any consensual encumbrance or restriction on the ability of any such Subsidiary to (a) pay any dividends or make any other distribution on its Capital Stock; (b) make payments in respect of any Indebtedness owed to the Company or any other Subsidiary; or (c) make loans or advances to the Company or any Subsidiary or to guarantee Indebtedness of the Company or any other Subsidiary; other than, in the case of (a), (b) and (c), (1) restrictions imposed by Applicable Law; (2) restrictions existing under agreements in effect on the date of this Indenture; (3) consensual encumbrances or restrictions binding upon any Person at the time such Person becomes a Subsidiary of the Company so long as such encumbrances or restrictions are not created, incurred or assumed in contemplation of such Person becoming a Subsidiary; (4) restrictions with respect to a Subsidiary imposed pursuant to an agreement entered into for the sale or disposition of all or substantially all the assets (which term may include the Capital Stock) of such Subsidiary; (5) restrictions on the transfer of assets which are subject to Liens; 79 (6) restrictions existing under agreements evidencing Permitted Acquisition Indebtedness or Permitted Repurchase Facilities of any Subsidiary if such Indebtedness (i) is made without recourse to, and with no cross-collateralization (which shall not include Guarantees), against the assets of, the Company or any other Subsidiary, and (ii) upon complete or partial liquidation of which the Indebtedness must be correspondingly repaid in whole or in part, as the case may be; and (7) restrictions existing under any agreement that renews, extends, increases, refinances or replaces any of the agreements containing the restrictions in clauses (2), (3) and (6); provided that the terms and conditions of any such restrictions (except for changes in interest rates related to changes in market rates) are not less favorable to the Holders than those under the agreement evidencing or relating to the Indebtedness renewed, extended, increased, refinanced or replaced. SECTION 9.15 Limitations on Transactions with Affiliates. The Company will not, and will not permit any of its Subsidiaries to, directly or indirectly, enter into any transaction or series of related transactions (including without limitation, the sale, purchase, exchange or lease of assets, property or services) with any Affiliate of the Company (except that the Company and any of its Subsidiaries may enter into any transaction or series of related transactions with any Subsidiary of the Company without limitation under this covenant) unless: (i) such transactions or series of related transactions is on terms that are no less favorable to the Company or such Subsidiary, as the case may be, than would be available in a comparable transaction in an arm's length dealing with a Person that is not such an Affiliate or, in the absence of such a comparable transaction, on terms that the relevant Board of Directors determines in good faith would be offered to a Person that is not an Affiliate; (ii) with respect to any transaction or series of related transactions involving aggregate payments in excess of $10,000,000, the Company delivers an Officers' Certificate to the Trustee certifying that such transaction or series of transactions complies with clause (i) above and has been approved by a majority of the Disinterested Directors of the relevant Board of Directors of the Company or such Subsidiary, as the case may be; and (iii) with respect to any transaction or series of related transactions involving aggregate payments in excess of $20,000,000, or in the event that no members of the Board of Directors are Disinterested Directors with respect to any transaction or series of transactions included in clause (ii), (x) in the case of a transaction involving real property, the aggregate rental or sale price of such real property shall be the fair market sale or rental value of such real property as determined in a written opinion by a nationally recognized expert with experience in appraising the terms and conditions of the type of transaction or series of transactions for which approval is required and (y) in all other cases, the Company delivers to the Trustee a written opinion of a nationally recognized expert with experience in appraising the terms and conditions of the type of transaction or series of transactions for which approval is required to the effect that the transaction or series of transactions are fair to the Company or such Subsidiary from a financial point 80 of view. The limitations set forth in this paragraph will not apply to (i) transactions entered into pursuant to any agreement already in effect on the Issue Date and any renewals or extensions thereof not involving modifications materially adverse to the Company or any Subsidiary, (ii) normal banking relationships with an Affiliate on an arms' length basis, (iii) any employment agreement, stock option, employee benefit, indemnification, compensation, business expense reimbursement or other employment-related agreement, arrangement or plan entered into by the Company or any of its Subsidiaries which agreement, arrangement or plan was adopted by the Board of Directors of the Company or such Subsidiary (including a majority of the Disinterested Directors), as the case may be, (iv) any permitted Restricted Payment or Permitted Payment, (v) any transaction or series of transactions in which the total amount involved does not exceed $125,000, or (vi) services rendered and obligations incurred by the Company or any of its Subsidiaries pursuant to existing agreements or agreements between the Company and/or any of its Subsidiaries. SECTION 9.16 Limitations on Liens and Guarantees. The Company will not create, assume, incur or suffer to exist any Lien (other than a Permitted Lien) upon any of the Company's assets (including the Capital Stock of any Subsidiary) as security for Indebtedness, without effectively providing that the Senior Notes will be equally and ratably secured with (or prior to) such Indebtedness. In addition, the Company will not permit any Subsidiary of the Company, directly or indirectly, to guarantee or assume, or subject any of its assets to a Lien (other than a Permitted Lien) to secure, any Pari Passu Indebtedness or Junior Indebtedness unless (i) such Subsidiary simultaneously executes and delivers a supplemental indenture to this Indenture providing for a guarantee of, or pledge of assets to secure, the Senior Notes by such Subsidiary on terms at least as favorable to the Holders of the Senior Notes as such guarantee or security interest in such assets is to the holders of such Pari Passu Indebtedness or Junior Indebtedness, except that in the event of a guarantee or security interest in such assets with respect to (x) Pari Passu Indebtedness, the guarantee or security interest in such assets under the supplemental indenture shall be made pari passu to the guarantee or security interest in such assets with respect to such Pari Passu Indebtedness or (y) Junior Indebtedness, any such guarantee or security interest in such assets with respect to such Junior Indebtedness shall be subordinated to such Subsidiary's guarantee or security interest in such assets with respect to the Senior Notes to the same extent as such Junior Indebtedness is subordinated to the Senior Notes and (ii) such Subsidiary waives and will not in any manner whatsoever claim, or take the benefit or advantage of, any rights of reimbursement, indemnity or subrogation or any other rights against the Company or any other Subsidiary of the Company as a result of any payment by such Subsidiary under its guarantees. SECTION 9.17 Offer to Purchase upon a Change of Control Event. (a) Upon the occurrence of a Change of Control Event, the Company will offer to repurchase (the "Change of Control Purchase Offer") all Senior Notes from the 81 Holders, and each Holder will have the right to require that the Company repurchase such Holder's Senior Notes, at a purchase price in cash equal to 101% of the principal amount thereof (the "Change of Control Purchase Price") plus accrued and unpaid interest (including any Additional Interest), if any, to the Change of Control Purchase Date (subject to the right of Holders on the relevant Regular Record Date to receive interest (including any Additional Interest) due on an Interest Payment Date occurring prior to such Change of Control Purchase Date), in accordance with the provisions of this Section 9.17. (b) Within 30 days following any Change of Control Event, the Company shall mail a notice to each Holder with a copy to the Trustee (a "Change of Control Purchase Notice") stating: (i) that a Change of Control Event has occurred and that such Holder has the right to require the Company to purchase such Holder's Senior Notes at a Change of Control Purchase Price in cash equal to 101% of the principal amount thereof plus accrued and unpaid interest (including any Additional Interest), if any, to the Change of Control Purchase Date (subject to the right of Holders on the relevant Regular Record Date to receive interest (including any Additional Interest) on an Interest Payment Date occurring prior to the Change of Control Purchase Date); (ii) the circumstances and relevant facts regarding such Change of Control Event (including, in the case of any merger, consolidation or sale of all or substantially all assets, information with respect to pro forma results of operations, cash flow and capitalization after giving effect to such Change of Control Event); (iii) the Change of Control Purchase Date (which shall be no earlier than 30 days nor later than 60 days from the date such Change of Control Purchase Notice is mailed); (iv) that, unless the Company defaults in making such payment, any Senior Note accepted for payment pursuant to the Change of Control Purchase Offer shall cease to accrue interest (including any Additional Interest) after the Change of Control Purchase Date; (v) that Holders electing to have a Senior Note purchased pursuant to any Change of Control Purchase Offer shall be required to surrender the Senior Note, with the form entitled "Option of Holder to Elect Purchase" on the reverse of the Senior Note completed, or transfer by book-entry transfer, to the Company, a depositary, if 82 appointed by the Company, or a Paying Agent at the address specified in the notice, at least three Business Days before the Change of Control Purchase Date; and (vi) that Holders shall be entitled to withdraw their election if the Company, the Depositary or the Paying Agent, as the case may be, receives, not later than the last Business Day prior to the Change of Control Purchase Date, a facsimile transmission or letter setting forth the name of the Holder, the principal amount of the Senior Note (and identification number) the Holder delivered for purchase and a statement that such Holder is withdrawing his election to have such Senior Note purchased. (c) Holders electing to have a Senior Note purchased will be required to surrender the Senior Note, with the form entitled "Option of Holder to Elect Purchase" duly completed, to the Company at the address specified in the notice at least three Business Days prior to the Change of Control Purchase Date. Holders will be entitled to withdraw their election if the Trustee or the Company receives not later than one Business Day prior to the Change of Control Purchase Date, a facsimile transmission or letter setting forth the name of the Holder, the principal amount of the Senior Note (and identification number) which was delivered by the Holder for purchase by the Company and a statement that such Holder is withdrawing his election to have such Senior Note purchased. (d) On the Change of Control Purchase Date, all Senior Notes purchased by the Company in a Change of Control Purchase Offer shall be delivered to the Trustee for cancellation, and the Company shall pay the Change of Control Purchase Price plus accrued and unpaid interest (including any Additional Interest), if any, to the Holders entitled thereto. (e) On or before the Change of Control Purchase Date, the Company will deliver to the Trustee an Officers' Certificate stating that the Senior Notes purchased in the Change of Control Purchase Offer are accepted for payment by the Company in accordance with the terms of this Section. The Company, the Depositary or the Paying Agent, as the case may be, will promptly (but in any case not later than five days after the Change of Control Purchase Date) pay to each tendering Holder an amount equal to the Change of Control Purchase Price of the Senior Notes tendered by such Holder plus interest (including any Additional Interest) accrued thereon (subject to the right of Holders on the relevant Regular Record Date to receive interest (including any Additional Interest) due on the relevant Interest Payment Date). 83 The Company will publicly announce the results of the Change of Control Purchase Offer on the Change of Control Purchase Date. (f) The Company will comply, to the extent applicable, with the requirements of Section 14(e) of the Exchange Act and any other applicable securities laws or regulations in connection with the repurchase of Senior Notes pursuant to this Section 9.17. To the extent that the provisions of any securities laws or regulations conflict with the provisions of this Section 9.17, the Company will comply with the applicable securities laws and regulations and will not be deemed to have breached its obligations under this Section 9.17 by virtue thereof. SECTION 9.18 Payments for Consent. The Company shall not, and shall not permit any of its Subsidiaries to, directly or indirectly, pay or cause to be paid any consideration, whether by way of interest, fee or otherwise, to any Holder as an inducement to any consent, waiver or amendment of any of the terms or provisions of this Indenture or the Senior Notes unless such consideration is paid to all Holders that provide such consent or so waive or agree to amend. SECTION 9.19 Waiver of Certain Covenants. The Company may omit in any particular instance to comply with any term, provision or condition set forth in Sections 9.5 to 9.16, inclusive, with respect to the Senior Notes if before the time of compliance the Holders of a majority in principal amount of the Outstanding Senior Notes shall, by act of such Holders, either waive such compliance in such instance or generally waive compliance with such term, provision or condition, but no such waiver shall extend to or affect such term, provision or condition except to the extent so expressly waived, and, until such waiver shall become effective, the obligations of the Company and the duties of the Trustee in respect of any such term, provision or condition shall remain in full force and effect. SECTION 9.20 Asset Sales The Company shall not, and shall not permit any of its Subsidiaries (other than the Atlas Pipeline Entities) to, consummate an Asset Sale unless the Company (or the Subsidiary, as the case may be) receives consideration at the time of the Asset Sale at least equal to the Fair Market Value of the assets or Capital Stock issued or sold or otherwise disposed of. Within 365 days after the receipt of any Net Proceeds from an Asset Sale, the Company may apply those Net Proceeds: (1) to repay Indebtedness and, if the Indebtedness repaid is revolving credit Indebtedness, to correspondingly reduce commitments with respect thereto; 84 (2) to acquire all or substantially all of the assets of, or a majority of the Voting Stock of, another Permitted Business; (3) to make a capital expenditure; or (4) to make an investment in one or more Permitted Businesses or to acquire other assets that are used or useful in a Permitted Business. Pending the final application of any Net Proceeds, the Company may temporarily reduce revolving credit borrowings or otherwise invest the Net Proceeds in any manner that is not prohibited by this Indenture. The amount equal to 50% of the Net Proceeds from Asset Sales that are not applied or invested as provided above in clauses (1)-(4) shall constitute "Excess Proceeds." When the aggregate amount of Excess Proceeds exceeds $20.0 million, the Company shall make an Asset Sale Offer to all Holders of Notes and all holders of Pari Passu Indebtedness containing provisions similar to those set forth herein with respect to offers to purchase or redeem with the proceeds of sales of assets to purchase the maximum principal amount of Notes and such Pari Passu Indebtedness that may be purchased out of the Excess Proceeds. The offer price in any Asset Sale Offer shall be equal to 100% of principal amount plus accrued and unpaid interest and Additional Interest, if any, to the date of purchase, and shall be payable in cash. If any Excess Proceeds remain after consummation of an Asset Sale Offer, the Company may use those Excess Proceeds for any purpose not otherwise prohibited by this Indenture. If the aggregate principal amount of Notes and the Pari Passu Indebtedness tendered into such Asset Sale Offer exceeds the amount of Excess Proceeds, the Trustee shall select the Notes and the Pari Passu Indebtedness to be purchased on a pro rata basis. Upon completion of each Asset Sale Offer, the amount of Excess Proceeds shall be reset at zero. The Company shall comply with the requirements of Rule 14e-1 under the Exchange Act and any other securities laws and regulations thereunder to the extent those laws and regulations are applicable in connection with each repurchase of Notes pursuant to an Asset Sale Offer. To the extent that the provisions of any securities laws or regulations conflict with the provisions of this Section 9.20 or Section 11.8 hereof, the Company shall comply with the applicable securities laws and regulations and shall not be deemed to have breached its obligations under such provisions by virtue of such conflict. The agreements governing the Company's existing Indebtedness contain, and future agreements may contain, prohibitions of certain events, including events that would constitute a Change of Control or an Asset Sale. In addition, the exercise by the Holders of their right to require the Company to repurchase the Senior Notes upon a Change of Control or an Asset Sale could cause a default under these other agreements, even if the Change of Control or Asset Sale itself does not, due to the financial effect of such repurchases on the Company. 85 Finally, the Company's ability to pay cash to the Holders of Senior Notes upon a repurchase may be limited by the Company's then existing financial resources. SECTION 9.21 Additional Subsidiary Guarantees If the Company or any of its Subsidiaries (other than the Atlas Pipeline Entities) acquires or creates another Subsidiary (other than a Securitization Entity or a registered broker/dealer) after the date hereof and such Subsidiary has a Consolidated Net Worth greater than $1.0 million, then that newly acquired or created Subsidiary shall become a Guarantor and execute a supplemental indenture and deliver an opinion of counsel satisfactory to the Trustee within 10 Business Days of the date on which it was acquired or created. SECTION 9.22 Special Provisions regarding Atlas Pipeline Partners, L.P. Notwithstanding anything in this Indenture to the contrary: (a) Atlas Pipeline Partners, L.P. and/or Atlas Pipeline Operating Partnership, L.P. may issue and sell such Capital Stock or other securities or Incur such Indebtedness as may be deemed appropriate by Atlas Pipeline Partners, L.P. or Atlas Pipeline Operating Partnership, L.P.; and (b) Atlas America, Inc., Viking Resources Corporation, Resource Energy, Inc. and their Affiliates may discharge their obligations and perform their duties under the Omnibus Agreement, Master Natural Gas Gathering Agreement and, together with Atlas Pipeline Partners GP, LLC, the Distribution Support Agreement with respect to Atlas Pipeline Partners, L.P. and the other transactions with Atlas Pipeline Partners, L.P., Atlas Pipeline Operating Partnership and Atlas Pipeline Partners GP, LLC; all as defined and more particularly described in the registration statement on Form S-1, registration no. 333-85193. 86 ARTICLE TEN MERGER, CONSOLIDATION AND TRANSFER OF ASSETS SECTION 10.1 Merger, Consolidation or Transfer of Assets of the Company. The Company shall not consolidate with or merge with or into, or sell, assign, convey, transfer, lease or otherwise dispose of, in one transaction or a series of transactions, all or substantially all its assets to any Person, unless: (i) the resulting, surviving or transferee Person (the "Successor Company") shall be a Person organized and existing under the laws of the United States of America or any state thereof or the District of Columbia and the Successor Company (if not the Company) shall expressly assume, by an indenture supplemental hereto, executed and delivered to the Trustee, in form reasonably satisfactory to the Trustee, all of the Company's obligations under the Senior Notes and this Indenture; (ii) immediately after giving effect to such transaction (and treating any Indebtedness that becomes an obligation of the Successor Company or any Subsidiary as a result of such transaction as having been Incurred by such Successor Company or such Subsidiary at the time of such transaction), no Default or Event of Default shall have occurred and be continuing; (iii) immediately after giving effect to such transaction, the Successor Company would be able to incur an additional $1.00 of Indebtedness without violating Section 9.10(a) hereof; and (iv) the Company shall have delivered to the Trustee an Officers' Certificate and an Opinion of Counsel, each stating that such consolidation, merger, transfer, sale, assignment, conveyance, lease or other disposition and such supplemental indenture (if any) comply with this Indenture and all conditions precedent provided for herein relating to such transaction have been complied with. This Section 10.1 shall not apply to a sale, assignment, conveyance, transfer, lease or other disposition of assets between or among the Company or any of the Guarantors. SECTION 10.2 Successor Substituted. Upon any consolidation of the Company with, or merger of the Company into, any other Person or any sale, assignment, conveyance, transfer, lease or other disposition of the properties and assets of the Company substantially as an entirety in accordance with Section 10.1, the Successor Company shall succeed to, and be substituted for, and may exercise every right and power of, the Company under this Indenture with the same effect as if such Successor Company herein, and in the event of any such sale, assignment, conveyance, transfer or other disposition, the Company (which term shall for this purpose mean the Successor Company), except in the case of a lease, shall be discharged of all obligations and covenants under this Indenture and the Senior Notes and may be dissolved and liquidated. SECTION 10.3 Senior Notes to Be Secured in Certain Events. If, upon any such consolidation of the Company with or merger of the Company into any other corporation, or upon any sale, assignment, conveyance, transfer, lease or other disposition of the property of the Company substantially as an entirety to any other Person, any property or assets of the Company would thereupon become subject to any Lien to secure Pari Passu Indebtedness or Junior Indebtedness, then unless such Lien could be created pursuant to Section 9.16 without equally and ratably securing the Senior Notes, the Company, prior to or simultaneously with such consolidation, merger, sale, 87 assignment, conveyance, transfer, lease or other disposition, will, as to such property or assets, secure the Senior Notes Outstanding (together with, if the Company shall so determine, any other Indebtedness of the Company now existing or hereinafter created which is not subordinate in right of payment to the Senior Notes) equally and ratably with the Pari Passu Indebtedness or prior to the Junior Indebtedness which upon such consolidation, merger, sale, assignment, conveyance, transfer, lease or other disposition is to become secured as to such property or assets by such Lien. 88 ARTICLE ELEVEN REDEMPTION OF SENIOR NOTES SECTION 11.1 Applicability of Article. Any redemption of Senior Notes before their Stated Maturity shall be in accordance with their terms and in accordance with this Article. SECTION 11.2Optional Redemption. The Senior Notes will not be redeemable prior to August 1, 2006, except as provided on the reverse of the Form of Senior Note set forth in Section 2.3. SECTION 11.3 Election to Redeem; Selection by Trustee of Senior Notes to Be Redeemed. Any election to redeem Senior Notes shall be evidenced by a Board Resolution. In case of any redemption at the election of the Company of less than all the Senior Notes, the Company shall, at least 60 days prior to the Redemption Date fixed by the Company (unless a shorter notice shall be satisfactory to the Trustee), notify the Trustee of such Redemption Date and of the principal amount of Senior Notes to be redeemed and shall deliver to the Trustee such documentation and records as shall enable the Trustee to select the Senior Notes to be redeemed pursuant to this Section 11.3. If less than all the Senior Notes are to be redeemed, the particular Senior Notes to be redeemed shall be selected not more than 60 days prior to the Redemption Date by the Trustee, from the Outstanding Senior Notes not previously called for redemption, by such method as the Trustee in its sole discretion shall deem fair and appropriate and which may provide for the selection for redemption of portions (equal to the minimum authorized denomination for Senior Notes or any integral multiple thereof) of the principal amount of Senior Notes of a denomination larger than the minimum authorized denomination for Senior Notes. The Trustee shall promptly notify the Company in writing of the Senior Notes selected for redemption and, in the case of any Senior Notes selected for partial redemption, the principal amount thereof to be redeemed. For all purposes of this Indenture, unless the context otherwise requires, all provisions relating to the redemption of Senior Notes shall relate, in the case of any Senior Notes redeemed or to be redeemed only in part, to the portion of the principal amount of such Senior Notes which has been or is to be redeemed. SECTION 11.4 Notice of Redemption. Notice of redemption shall be given by first-class mail, postage prepaid, mailed not less than 30 nor more than 60 days prior to the Redemption Date, to each Holder of Senior Notes to be redeemed, at his address appearing in the Senior Note Register. All notices of redemption shall identify the Senior Notes to be Redeemed (including CUSIP numbers) and shall state: (1) the Redemption Date, 89 (2) the Redemption Price and accrued interest (including Additional Interest), if any, (3) if less than all the Outstanding Senior Notes are to be redeemed, the identification (and, in the case of partial redemption of any Senior Notes, the principal amounts) of the particular Senior Notes to be redeemed, (4) that on the Redemption Date the Redemption Price and accrued interest (including Additional Interest), if any, will become due and payable upon each such Senior Note to be redeemed and, if applicable, that interest (including Additional Interest) thereon will cease to accrue on and after said date, and (5) the place or places where such Senior Notes are to be surrendered for payment of the Redemption Price and accrued interest (including Additional Interest), if any. Notice of redemption of Senior Notes to be redeemed at the election of the Company shall be given by the Company or, at the Company's written request, by the Trustee in the name and at the expense of the Company and shall be irrevocable. SECTION 11.5 Deposit of Redemption Price. Prior to any Redemption Date, the Company shall deposit with the Trustee or with a Paying Agent (or, if the Company is acting as its own Paying Agent, segregate and hold in trust as provided in Section 9.3) an amount of money in immediately available funds sufficient to pay the Redemption Price of, and (except if the Redemption Date shall be an Interest Payment Date) accrued interest (including Additional Interest) on, all the Senior Notes which are to be redeemed on that date. SECTION 11.6 Senior Notes Payable on Redemption Date. Notice of redemption having been given as aforesaid, the Senior Notes so to be redeemed shall, on the Redemption Date, become due and payable at the Redemption Price therein specified, and from and after such date (unless the Company shall default in the payment of the Redemption Price and accrued interest, including any Additional Interest) such Senior Notes shall cease to bear interest. Upon surrender of any such Senior Note for redemption in accordance with said notice, such Senior Note shall be paid by the Company at the Redemption Price, together with accrued interest (including any Additional Interest) to the Redemption Date; provided, however, that installments of interest whose stated maturity is on or prior to the Redemption Date shall be payable to the Holders of such Senior Notes, or one or more Predecessor Senior Notes, registered as such at the close of business on the relevant Regular Record Dates according to their terms and the provisions of Section 3.8. If any Senior Note called for redemption shall not be so paid upon surrender thereof for redemption, the principal and any premium shall, subject 90 to Section 1.13 hereof, until paid, bear interest (including any Additional Interest) from the Redemption Date at the rate prescribed therefor in the Senior Note. SECTION 11.7 Senior Notes Redeemed in Part. Any Senior Note which is to be redeemed only in part shall be surrendered at a Place of Payment therefor (with, if the Company or the Trustee so requires, due endorsement by, or a written instrument of transfer in form satisfactory to the Company and the Trustee duly executed by, the Holder thereof or his attorney duly authorized in writing), and the Company shall execute, and the Trustee shall authenticate and deliver to the Holder of such Senior Note without service charge, a new Senior Note or Senior Notes of like tenor, of any authorized denomination as requested by such Holder, in aggregate principal amount equal to and in exchange for the unredeemed portion of the principal of the Senior Note so surrendered. SECTION 11.8 Offer to Purchase by Application of Excess Proceeds. In the event that, pursuant to Section 9.20 hereof, the Company is required to commence an offer to all Holders to purchase Notes (an "Asset Sale Offer"), it will follow the procedures specified below. The Asset Sale Offer shall be made within five days of each date on which the aggregate amount of Excess Proceeds exceeds $20.0 million to all Holders and all holders of Pari Passu Indebtedness with Notes containing provisions similar to those set forth herein with respect to offers to purchase or redeem with the proceeds of sales of assets. The Asset Sale Offer will remain open for a period of at least 20 Business Days following its commencement and not more than 30 Business Days, except to the extent that a longer period is required by applicable law (the "Offer Period"). No later than three Business Days after the termination of the Offer Period (the "Purchase Date"), the Company will apply all Excess Proceeds (the "Offer Amount") to the purchase of the Senior Notes and the Pari Passu Indebtedness (on a pro rata basis, if applicable) or, if less than the Offer Amount has been tendered, all Senior Notes and Pari Passu Indebtedness tendered in response to the Asset Sale Offer. Payment for any Senior Notes so purchased will be made in the same manner as interest payments are made. If the Purchase Date is on or after a Regular Record Date and on or before the related Interest Payment Date, any accrued and unpaid interest will be paid to the Person in whose name a Senior Note is registered at the close of business on such record date, and no additional interest will be payable to Holders who tender Senior Notes pursuant to the Asset Sale Offer. Upon the commencement of an Asset Sale Offer, the Company will send, by first class mail, a notice to the Trustee and each of the Holders, with a copy to the Trustee. The notice will contain all instructions and materials necessary to enable such Holders to tender Notes pursuant to the Asset Sale Offer. The notice, which will govern the terms of the Asset Sale Offer, will state: 91 (1) that the Asset Sale Offer is being made pursuant to this Section 11.8 and Section 9.20 hereof and the length of time the Asset Sale Offer will remain open; (2) the Offer Amount, the purchase price and the Purchase Date; (3) that any Senior Note not tendered or accepted for payment will continue to accrue interest; (4) that, unless the Company defaults in making such payment, any Senior Note accepted for payment pursuant to the Asset Sale Offer will cease to accrue interest after the Purchase Date; (5) that Holders electing to have a Senior Note purchased pursuant to an Asset Sale Offer may elect to have Senior Notes purchased in integral multiples of $1,000 only; (6) that Holders electing to have a Senior Note purchased pursuant to any Asset Sale Offer will be required to surrender the Senior Note, with the form entitled "Option of Holder to Elect Purchase" on the reverse of the Senior Note completed, or transfer by book-entry transfer, to the Company, a Depositary, if appointed by the Company, or a Paying Agent at the address specified in the notice at least three days before the Purchase Date; (7) that Holders will be entitled to withdraw their election if the Company, the Depositary or the Paying Agent, as the case may be, receives, not later than the expiration of the Offer Period, a telegram, telex, facsimile transmission or letter setting forth the name of the Holder, the principal amount of the Senior Note the Holder delivered for purchase and a statement that such Holder is withdrawing his election to have such Senior Note purchased; (8) that, if the aggregate principal amount of Senior Notes and the Pari Passu Indebtedness surrendered exceeds the Offer Amount, the Company will select the Senior Notes and Pari Passu Indebtedness to be purchased on a pro rata basis based on the principal amount of Senior Notes and the Pari Passu Indebtedness surrendered (with such adjustments as may be deemed appropriate by the Company so that only Senior Notes in denominations of $1,000, or integral multiples thereof, will be purchased); and (9) that Holders whose Senior Notes were purchased only in part will be issued new Senior Notes equal in principal amount to the unpurchased portion of the Senior Notes surrendered (or transferred by book-entry transfer). 92 On or before the Purchase Date, the Company will, to the extent lawful, accept for payment, on a pro rata basis to the extent necessary, the Offer Amount of Senior Notes or portions thereof tendered pursuant to the Asset Sale Offer, or if less than the Offer Amount has been tendered, all Senior Notes tendered, and will deliver to the Trustee an Officers' Certificate stating that such Senior Notes or portions thereof were accepted for payment by the Company in accordance with the terms of this Section 11.8. The Company, the Depositary or the Paying Agent, as the case may be, will promptly (but in any case not later than five days after the Purchase Date) mail or deliver to each tendering Holder an amount equal to the purchase price of the Senior Notes tendered by such Holder and accepted by the Company for purchase, and the Company will promptly issue a new Senior Note, and the Trustee, upon written request from the Company will authenticate and mail or deliver such new Senior Note to such Holder, in a principal amount equal to any unpurchased portion of the Senior Note surrendered. Any Senior Note not so accepted shall be promptly mailed or delivered by the Company to the Holder thereof. The Company will publicly announce the results of the Asset Sale Offer on the Purchase Date. 93 ARTICLE TWELVE DEFEASANCE AND COVENANT DEFEASANCE SECTION 12.1 Option to Effect Legal Defeasance or Covenant Defeasance. The Company may, at the option of its Board of Directors evidenced by a Board Resolution, at any time, elect to have either Section 12.2 or 12.3 be applied to all Outstanding Senior Notes upon compliance with the conditions set forth below in this Article. SECTION 12.2 Legal Defeasance and Discharge. Upon the Company's exercise under Section 12.1 hereof of the option applicable to this Section 12.2, the Company and each of the Guarantors shall, subject to the satisfaction of the conditions set forth in Section 12.4, be deemed to have been discharged from its obligations with respect to all Outstanding Senior Notes (including the Subsidiary Guarantees) on the date the conditions set forth below are satisfied (hereinafter, "Legal Defeasance"). For this purpose, Legal Defeasance means that the Company and each of the Guarantors shall be deemed to have paid and discharged the entire Indebtedness represented by the Outstanding Senior Notes, which shall thereafter be deemed to be "Outstanding" only for the purposes of Section 12.5 and the other Sections of this Indenture referred to in (a) and (b) below, and the Company shall be deemed to have satisfied all its other obligations under the Senior Notes, the Subsidiary Guarantees and this Indenture (and the Trustee, on written demand of and at the expense of the Company, shall execute proper instruments acknowledging the same), except for the following provisions which shall survive until otherwise terminated or discharged hereunder: (a) the rights of Holders of Outstanding Senior Notes to receive solely from the trust fund described in Section 12.4, and as more fully set forth in such Section, payments in respect of the principal of, premium, if any, and interest (including any Additional Interest) on such Senior Notes as and when such payments are due, (b) the Company's obligations with respect to such Senior Notes under Sections 3.5, 3.6, 3.7, 9.2, 9.3 and 9.5, (c) the rights, powers, trusts, duties and immunities of the Trustee and any Authenticating Agent hereunder and the Company's obligations in connection therewith and (d) this Article. Subject to compliance with this Article, the Company may exercise its option under this Section 12.2 notwithstanding the prior exercise of its option under Section 12.3. SECTION 12.3 Covenant Defeasance. Upon the Company's exercise under Section 12.1 of the option applicable to this Section 12.3, the Company and each of the Guarantors shall, subject to the satisfaction of the conditions set forth in Section 12.4, be released from its obligations under the covenants contained in Article Nine (except Sections 9.1, 9.2, 9.5 and 9.7) with respect to the Outstanding Senior Notes on and after the date the conditions set forth below are satisfied (hereinafter, "Covenant Defeasance"), and the Senior 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 94 being understood that such Senior Notes shall not be deemed outstanding for accounting purposes). For this purpose, Covenant Defeasance means that, with respect to the Outstanding Senior Notes and Subsidiary Guarantees, the Company and the Guarantors 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 5.1, but, except as specified above, the remainder of this Indenture and such Senior Notes and Subsidiary Guarantees shall be unaffected thereby. SECTION 12.4 Conditions to Legal or Covenant Defeasance. The following shall be the conditions precedent to the effectiveness of any Legal Defeasance or Covenant Defeasance: (a) the Company shall (i) irrevocably deposit with the Trustee, in trust, for the benefit of the Holders, unencumbered cash in United States dollars, unencumbered U.S. Government Obligations, or a combination thereof, in such amounts as will be sufficient, in a written opinion of a nationally recognized firm of independent public accountants delivered to the Trustee, to pay the principal of, premium, if any, and interest (including any Additional Interest) on the outstanding Senior Notes on the stated date for payment thereof or on the applicable Redemption Date, as the case may be, and the Company must specify whether the Senior Notes are being defeased to maturity or to a particular Redemption Date, and (ii) irrevocably instruct the Trustee to apply such cash and U.S. Government Obligations to such payments with respect to the Senior Notes; (b) in the case of an election under Section 12.2, 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 federal income tax law, in either case to the effect that, and based thereon such Opinion of Counsel shall confirm that, the Holders of the Outstanding Senior Notes will not recognize income, gain or loss for federal income tax purposes as a result of such Legal Defeasance and will be subject to federal income tax on the same amounts, in the same manner and at the same times as would have been the case if such Legal Defeasance had not occurred; (c) in the case of an election under Section 12.3 hereof, the Company shall have delivered to the Trustee an Opinion of Counsel in the United States confirming that the Holders of the Outstanding Senior Notes will not recognize income, gain or loss for federal income 95 tax purposes as a result of such Covenant Defeasance and will be subject to federal income tax on the same amounts, in the same manner and at the same times as would have been the case if such Covenant Defeasance has not occurred; (d) no Default or Event of Default shall have occurred and be continuing (i) on the date of such deposit (other than a Default or Event of Default resulting from the Incurrence of Indebtedness all or a portion of the proceeds of which will be used to defease the Senior Notes pursuant to this Article concurrently with such Incurrence) and (ii) insofar as Section 5.1(f) hereof is concerned, at any time during the period ending on the 91st day after the date of deposit (such condition not being satisfied until such 91st day); (e) such Legal Defeasance or Covenant Defeasance shall not result in a breach or violation of, or constitute a default under, any material agreement or instrument (other than this Indenture) to which the Company or any of its Subsidiaries is a party or by which the Company or any of its Subsidiaries is bound; (f) the Company shall have delivered to the Trustee an Opinion of Counsel to the effect that on the 91st day following the deposit, the trust funds will not be subject to the effect of any applicable bankruptcy, insolvency, reorganization or similar laws affecting creditors' rights generally; (g) the Company shall have delivered to the Trustee an Officers' Certificate stating that the deposit was not made by the Company with the intent of preferring the Holders over any other creditors of the Company or with the intent of defeating, hindering, delaying or defrauding any other creditors of the Company; and (h) the Company shall have delivered to the Trustee an Officers' Certificate and an Opinion of Counsel, each stating that all conditions precedent provided for or relating to the Legal Defeasance or the Covenant Defeasance have been complied with. SECTION 12.5 Deposited Money and U.S. Government Obligations To Be Held in Trust; Other Miscellaneous Provisions. Subject to Section 12.6, all money and U.S. Government Obligations (including the proceeds thereof) deposited with the Trustee pursuant to Section 12.4 in respect of the Outstanding Senior Notes shall be held in trust and applied by the Trustee, in accordance with the provisions of the Senior Notes and this Indenture, to the payment, either directly or through any Paying Agent (excluding the Company acting as Paying Agent) as the Trustee may determine, to the Holders of such Senior Notes of all sums due and to become due thereon in respect of principal, premium, if any, and interest (including any Additional Interest), but such money need not be segregated from other funds except to the extent required by law. 96 The Company shall pay and indemnify the Trustee against any tax, fee or other charge imposed on or assessed against the cash or U.S. Government Obligations deposited pursuant to Section 12.4 or the principal and interest received in respect thereof. Anything in this Article to the contrary notwithstanding, the Trustee shall deliver or pay to the Company from time to time upon the written request of the Company any money or U.S. Government Obligations held by it as provided in Section 12.4 which, in the opinion of a nationally recognized firm of independent public accountants expressed in a written certification thereof delivered to the Trustee (which may be the opinion delivered under Section 12.4), are in excess of the amount thereof that would then be required to be deposited to effect an equivalent Legal Defeasance or Covenant Defeasance. SECTION 12.6 Reinstatement. If the Trustee or Paying Agent is unable to apply any cash or U.S. Government Obligations in accordance with Section 12.2 or 12.3, as the case may be, by reason of any order or judgment of any court or Governmental Authority enjoining, restraining or otherwise prohibiting such application, then the Company's and each Guarantor's obligations under this Indenture and the Senior Notes shall be revived and reinstated as though no deposit had occurred pursuant to Section 12.2 or 12.3 until such time as the Trustee or Paying Agent is permitted to apply all such money in accordance with Section 12.2 or 12.3, as the case may be; provided, however, that, if the Company makes any payment of principal of, premium, if any, or interest (including any Additional Interest) on any Senior Note following the reinstatement of its obligations, the Company shall be subrogated to the rights of the Holders of such Senior Notes to receive such payment from the money held by the Trustee or Paying Agent. 97 ARTICLE THIRTEEN NOTE GUARANTEES SECTION 13.1 Guarantee. (a) Subject to this Article 13, each of the Guarantors hereby, jointly and severally, unconditionally guarantees to each Holder of a Senior 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 Senior Notes or the obligations of the Company hereunder or thereunder, that: (1) the principal of and interest on the Senior Notes will be promptly paid in full when due, and Additional Interest, if any, 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 (2) in case of any extension of time of payment or renewal of any Senior 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. Failing payment when due of any amount so guaranteed or any performance so guaranteed for whatever reason, the Guarantors will be jointly and severally obligated to pay the same immediately. Each Guarantor agrees that this is a guarantee of payment and not a guarantee of collection. (b) The Guarantors hereby agree that their obligations hereunder are unconditional, irrespective of the validity, regularity or enforceability of the Senior Notes or this Indenture, the absence of any action to enforce the same, any waiver or consent by any Holder 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 hereby waives diligence, presentment, demand of payment, filing of claims with a court in the event of insolvency or bankruptcy of the Company, any right to require a proceeding first against the Company, protest, notice and all demands whatsoever and covenant that this Subsidiary Guarantee will not be discharged except by complete performance of the obligations contained in the Senior Notes and this Indenture. (c) 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 98 similar official acting in relation to either the Company or the Guarantors, any amount paid by either to the Trustee or such Holder, this Subsidiary Guarantee, to the extent theretofore discharged, will be reinstated in full force and effect. (d) Each Guarantor agrees that it will not be entitled to any right of subrogation in relation to the Holders in respect of any obligations guaranteed hereby until payment in full of all obligations guaranteed hereby. Each Guarantor further agrees that, as between the Guarantors, on the one hand, and the Holders and the Trustee, on the other hand, (1) the maturity of the obligations guaranteed hereby may be accelerated as provided in Article 5 hereof for the purposes of this Subsidiary Guarantee, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the obligations guaranteed hereby, and (2) in the event of any declaration of acceleration of such obligations as provided in Article 5 hereof, such obligations (whether or not due and payable) will forthwith become due and payable by the Guarantors for the purpose of this Subsidiary Guarantee. The Guarantors will 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 Subsidiary Guarantee. SECTION 13.2 Limitation on Guarantor Liability. Each Guarantor, and by its acceptance of Senior Notes, each Holder, hereby confirms that it is the intention of all such parties that the Subsidiary 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 Subsidiary Guarantee. To effectuate the foregoing intention, the Trustee, the Holders and the Guarantors hereby irrevocably agree that the obligations of such Guarantor will be limited to the maximum amount that 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 13, result in the obligations of such Guarantor under its Subsidiary Guarantee not constituting a fraudulent transfer or conveyance. SECTION 13.3 Execution and Delivery of Subsidiary Guarantee. To evidence its Subsidiary Guarantee set forth in Section 13.1, each Guarantor hereby agrees that a notation of such Subsidiary Guarantee substantially in the following form will be endorsed by an officer of such Guarantor on each Senior Note authenticated and delivered by the Trustee and that this Indenture will be executed on behalf of such Guarantor by one of its officers. 99 FORM OF NOTATION OF GUARANTEE For value received, each Guarantor (which term includes any successor Person under the Indenture) has, jointly and severally, unconditionally guaranteed, to the extent set forth in the Indenture and subject to the provisions in the Indenture dated as of __________, 2003 among Resource America, Inc., the Guarantors and The Bank of New York, as trustee (a) the due and punctual payment of the principal of and interest on the Senior Notes (as defined in the Indenture), the due and punctual payment of Additional Interest, if any, and the due and punctual performance of all other obligations of the Company to the Holders or the Trustee all in accordance with the terms of the Indenture and (b) in case of any extension of time of payment or renewal of any Senior Notes or any of such other obligations, that the same will be promptly paid in full when due or performed in accordance with the terms of the extension or renewal, whether at stated maturity, by acceleration or otherwise. The obligations of the Guarantors to the Holders and to the Trustee pursuant to the Subsidiary Guarantee and the Indenture are expressly set forth in Article 13 of the Indenture and reference is hereby made to the Indenture for the precise terms of the Subsidiary Guarantee. Each Holder of a Senior Note, by accepting the same, agrees to and shall be bound by such provisions. [NAME OF GUARANTOR(S)] By: --------------------------------- Name: Title: Each Guarantor hereby agrees that its Subsidiary Guarantee set forth in Section 13.1 will remain in full force and effect notwithstanding any failure to endorse on each Senior Note a notation of such Subsidiary Guarantee. If an officer whose signature is on this Indenture or on the Subsidiary Guarantee no longer holds that office at the time the Trustee authenticates the Senior Note on which a Subsidiary Guarantee is endorsed, the Subsidiary Guarantee will be valid nevertheless. The delivery of any Senior Note by the Trustee, after the authentication thereof hereunder, will constitute due delivery of the Subsidiary Guarantee set forth in this Indenture on behalf of the Guarantors. In the event that the Company creates or acquires any Subsidiary after the date of this Indenture, if required by Section 9.21 hereof, the Company will cause such Subsidiary to comply with the provisions of Section 9.21 hereof and this Article 13, to the extent applicable. 100 SECTION 13.4 Guarantors May Consolidate, etc., on Certain Terms Except as otherwise provided in Section 13.5, no Guarantor may sell or otherwise dispose of all or substantially all of its assets to, or consolidate with or merge with or into (whether or not such Guarantor is the surviving Person) another Person, other than the Company or another Guarantor, unless: (1) immediately after giving effect to such transaction, no Default or Event of Default exists; and (2) either: (a) subject to Section 13.5 hereof, the Person acquiring the property in any such sale or disposition or the Person formed by or surviving any such consolidation or merger unconditionally assumes all the obligations of that Guarantor, pursuant to a supplemental indenture in form and substance reasonably satisfactory to the Trustee, under this Indenture and the Subsidiary Guarantee on the terms set forth herein or therein; and (b) the Net Proceeds of such sale or other disposition are applied in accordance Section 9.20 hereof. In case of any such consolidation, merger, sale or conveyance and upon the assumption by the successor Person, by supplemental indenture, executed and delivered to the Trustee and satisfactory in form to the Trustee, of the Subsidiary Guarantee endorsed upon the Senior Notes and the due and punctual performance of all of the covenants and conditions of this Indenture to be performed by the Guarantor, such successor Person will succeed to and be substituted for the Guarantor with the same effect as if it had been named herein as a Guarantor. Notwithstanding the foregoing, nothing contained in this Indenture or in any of the Senior Notes will prevent any consolidation or merger of a Guarantor with or into the Company or another Guarantor, or will 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. SECTION 13.5 Releases Following Sale of Assets. In the event of any 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 Capital Stock of any Guarantor, in each case to a Person that is not (either before or after giving effect to such transactions) a 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 101 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 relieved of any obligations under its Subsidiary Guarantee; provided that the Net Proceeds of such sale or other disposition are applied in accordance with Section 9.20 hereof. 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, including Section 9.20 hereof, the Trustee will execute any documents reasonably required in order to evidence the release of any Guarantor from its obligations under its Subsidiary Guarantee. Any Guarantor not released from its obligations under its Subsidiary Guarantee will remain liable for the full amount of principal of and interest on the Senior Notes and for the other obligations of any Guarantor under this Indenture as provided in this Article 13. 102 ARTICLE FOURTEEN MISCELLANEOUS SECTION 14.1. No Recourse Against Others. A director, officer, employee, stockholder or incorporator, as such, of the Company shall not have any liability for any obligations of the Company under the Senior Notes or 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 Senior Note waives and releases all such liability. SECTION 14.2. Execution in Counterparts. This instrument may be executed in any number of counterparts, each of which so executed shall be deemed to be an original, but all such counterparts shall together constitute but one and the same instrument. * * * * * 103 IN WITNESS WHEREOF, the parties hereto have caused this Indenture to be duly executed, all as of the day and year first above written. RESOURCE AMERICA, INC. By: /s/ Edward E. Cohen ------------------------------------- Edward E. Cohen Chairman of the Board of Directors, Chief Executive Officer and President THE BANK OF NEW YORK, as Trustee By: /s/ Joseph A. 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ATLAS ENERGY HOLDINGS, INC. ATLAS AMERICA, INC., a Delaware Corporation By: /s/ Steven J. Kessler ------------------------------ By: /s/ Michael L. Staines Steven J. Kessler ------------------------- Vice President and Treasurer Michael L. Staines Senior Vice President and Secretary ATLAS AMERICA, INC., a Pennsylvania AIC, INC. Corporation By: /s/ Steven J. Kessler By: /s/ Michael L. Staines ------------------------- --------------------------------- Steven J. Kessler Michael L. Staines Senior Vice President Senior Vice President and Secretary ATLAS ENERGY CORPORATION ATLAS ENERGY GROUP, INC. By: /s/ Michael L. Staines By: /s/ Michael L. Staines -------------------------- ---------------------------------- Michael L. Staines Michael L. Staines Vice President and Secretary Senior Vice President and Secretary ATLAS RESOURCES, INC. AED INVESTMENTS, INC. By: /s/ Michael L. Staines By: /s/ Michael L. Staines -------------------------- ----------------------------------- Michael L. Staines Vice President, Treasurer and Senior Vice President and Secretary Secretary ARD INVESTMENTS, INC. By: /s/ Michael L. Staines ---------------------------------- Michael L. Staines Vice President, Treasurer and Secretary
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PENNSYLVANIA INDUSTRIAL ENERGY, INC. ATLAS INFORMATION MANAGEMENT, LLC By: /s/ Michael L. Staines By: AIC, Inc., its sole member ---------------------------------- Michael L. Staines Vice President and Secretary By: /s/ Steven J. Kessler ------------------------- Steven J. Kessler Senior Vice President RESOURCE ENERGY, INC. REI-NY, INC. By: /s/ Michael L. Staines By: /s/ Michael L. Staines ---------------------------------- -------------------------- Michael L. Staines Michael L. Staines President and Secretary Vice President and Assistant Secretary RESOURCE WELL SERVICES, INC. VIKING RESOURCES CORPORATION By: /s/ Jeffrey C. Simmons By: /s/ Michael L. Staines ---------------------------------- ------------------------- Jeffrey C. Simmons Michael L. Staines President President and Secretary RFI HOLDING COMPANY, INC. VIKING INVESTMENTS, INC. By: /s/ Michael L. Staines By: /s/ Michael L. Staines ------------------------------------- ------------------------- Michael L. Staines Michael L. Staines Vice President, Treasurer and Vice President, Treasurer and Secretary Secretary ATLAS NOBLE CORP. RESOURCE FINANCIAL FUND MANAGEMENT, INC. By: /s/ Michael L. Staines By: /s/ Steven J. Kessler -------------------------------------- ------------------------ Michael L. Staines Steven J. Kessler President and Secretary Vice President and Treasurer RAI VENTURES, INC. RESOURCE CAPITAL PARTNERS, INC. By: /s/ Michael S. Yecies By: /s/ David E. Bloom ----------------------------------- --------------------- Michael S. Yecies David E. Bloom Vice President and Secretary President
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RESOURCE LEASING, INC. FLI HOLDINGS, INC. By: /s/ Freddie M. Kotek By: /s/ Freddie M. Kotek ------------------------------------ ---------------------------------- Freddie M. Kotek Freddie M. Kotek President President LEAF FINANCIAL CORP. LEAF CAPITAL MANAGEMENT, INC. By: /s/ Miles Herman By: /s/ Miles Herman -------------------------------------- ----------------------------------- Miles Herman Miles Herman President and Chief Operating Officer Vice President - Operations and Secretary LEAF FUNDING, INC. LEAF ASSET MANAGEMENT, INC. By: /s/ Miles Herman By: /s/ Miles Herman ----------------------------- ------------------------------------ Miles Herman Miles Herman President and Chief Operating Officer President and Chief Executive Officer RESOURCE REAL ESTATE HOLDINGS, INC. RESOURCE PROPERTIES, INC. By: /s/ Steven J. Kessler By: /s/ Alan F. Feldman ------------------------------------- --------------------------------- Steven J. Kessler Alan F. Feldman Vice President and Treasurer President RESOURCE PROPERTIES II, INC. RESOURCES PROPERTIES IV, INC. By: /s/ Alan F. Feldman By: /s/ Alan F. Feldman --------------------------------------- ----------------------------------- Alan F. Feldman Alan F. Feldman President President RESOURCE PROPERTIES VI, INC. By: /s/ Alan F. Feldman -------------------------------- Alan F. Feldman President
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RESOURCE PROPERTIES VIII, INC. RESOURCE PROPERTIES XII, INC. By: /s/ Alan F. Feldman By: /s/ Alan F. Feldman ------------------------------------------ --------------------- Alan F. Feldman Alan F. Feldman President President RESOURCE PROPERTIES XIV, INC. RESOURCE PROPERTIES XV, INC. By: /s/ Alan F. Feldman By: /s/ Alan F. Feldman ------------------------------------------ --------------------- Alan F. Feldman Alan F. Feldman President President RESOURCE PROPERTIES XVII, INC. RESOURCE PROPERTIES XVIII, INC. By: /s/ Alan F. Feldman By: /s/ Alan F. Feldman ------------------------------------------ --------------------- Alan F. Feldman Alan F. Feldman President President RESOURCE PROPERTIES XX, INC. RESOURCE PROPERTIES XXII, INC. By: /s/ Alan F. Feldman By: /s/ Alan F. Feldman ------------------------------------------ --------------------- Alan F. Feldman Alan F. Feldman President President RESOURCE PROPERTIES XXIII, INC. RESOURCE PROPERTIES XXIV, INC. By: /s/ Alan F. Feldman By: /s/ Alan F. Feldman ------------------------------------------ --------------------- Alan F. Feldman Alan F. Feldman President President RESOURCE PROPERTIES XXV, INC. RESOURCE PROPERTIES XXVI, INC. By: /s/ Alan F. Feldman By: /s/ Alan F. Feldman ------------------------------------------ --------------------- Alan F. Feldman Alan F. Feldman President President RESOURCE PROPERTIES XXVII, INC. RESOURCE PROPERTIES XXVIII, INC. By: /s/ Alan F. Feldman By: /s/ Alan F. Feldman ------------------------------------------ --------------------- Alan F. Feldman Alan F. Feldman President President
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RESOURCE PROPERTIES XXIX, INC. RESOURCE PROPERTIES XXX, INC. By: /s/ Alan F. Feldman By: /s/ Alan F. Feldman ------------------------------------------ --------------------- Alan F. Feldman Alan F. Feldman President President RESOURCE PROPERTIES XXXI, INC. RESOURCE PROPERTIES XXXII, INC. By: /s/ Alan F. Feldman By: /s/ Alan F. Feldman ------------------------------------------ --------------------- Alan F. Feldman Alan F. Feldman President President RESOURCE PROPERTIES XXXIII, INC. RESOURCE PROPERTIES XXXIV, INC. By: /s/ Alan F. Feldman By: /s/ Alan F. Feldman ------------------------------------------ --------------------- Alan F. Feldman Alan F. Feldman President President RESOURCE PROPERTIES XXXV, INC. RESOURCE PROPERTIES XXXVI, INC. By: /s/ Alan F. Feldman By: /s/ Alan F. Feldman ------------------------------------------ --------------------- Alan F. Feldman Alan F. Feldman President President RESOURCE PROPERTIES XXXVIII, INC. RESOURCE PROPERTIES XL, INC. By: /s/ Alan F. Feldman By: /s/ Alan F. Feldman ------------------------------------------ --------------------- Alan F. Feldman Alan F. Feldman President President RESOURCE PROPERTIES XLI, INC. RESOURCE PROPERTIES XLII, INC. By: /s/ Alan F. Feldman By: /s/ Alan F. Feldman ------------------------------------------ --------------------- Alan F. Feldman Alan F. Feldman President President
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RESOURCE PROPERTIES XLIV, INC. RESOURCE PROPERTIES XLVI, INC. By: /s/ Alan F. Feldman By: /s/ Alan F. Feldman ------------------------------------------ --------------------- Alan F. Feldman Alan F. Feldman President President RESOURCE PROPERTIES XLVII, INC. RESOURCE PROPERTIES XLIX, INC. By: /s/ Alan F. Feldman By: /s/ Alan F. Feldman ------------------------------------------ --------------------- Alan F. Feldman Alan F. Feldman President President RESOURCE PROPERTIES 50, INC. RESOURCE PROPERTIES 51, INC. By: /s/ Alan F. Feldman By: /s/ Alan F. Feldman ------------------------------------------ --------------------- Alan F. Feldman Alan F. Feldman President President RESOURCE PROPERTIES 52, INC. RESOURCE PROPERTIES 53, INC. By: /s/ Alan F. Feldman By: /s/ Alan F. Feldman ------------------------------------------ --------------------- Alan F. Feldman Alan F. Feldman President President RESOURCE PROPERTIES 54, INC. CP/GP, INC. By: /s/ Alan F. Feldman By: /s/ Alan F. Feldman ------------------------------------------ --------------------- Alan F. Feldman Alan F. Feldman President President CHESTERFIELD MORTGAGE INVESTORS, INC. ES GP, INC. By: /s/ Alan F. Feldman By: /s/ Alan F. Feldman ------------------------------------------ --------------------- Alan F. Feldman Alan F. Feldman President President
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RAI FINANCIAL, INC. RESOURCE COMMERCIAL MORTGAGES, INC. By: /s/ Alan F. Feldman By: /s/ Alan F. Feldman ------------------------------------------ --------------------- Alan F. Feldman Alan F. Feldman President President RESOURCE FINANCIAL SERVICES, INC. RESOURCE HOUSING INVESTORS I, INC. By: /s/ Alan F. Feldman By: /s/ Alan F. Feldman ------------------------------------------ --------------------- Alan F. Feldman Alan F. Feldman President President RESOURCE HOUSING INVESTORS II, INC. RESOURCE HOUSING INVESTORS III, INC. By: /s/ Alan F. Feldman By: /s/ Alan F. Feldman ------------------------------------------ --------------------- Alan F. Feldman Alan F. Feldman President President RESOURCE HOUSING INVESTORS IV, INC. RESOURCE PROGRAMS, INC. By: /s/ Alan F. Feldman By: /s/ Alan F. Feldman ------------------------------------------ --------------------- Alan F. Feldman Alan F. Feldman President President RESOURCE RITTENHOUSE, INC. WS MORTGAGE ACQUISITION CORPORATION By: /s/ Alan F. Feldman By: /s/ Alan F. Feldman ------------------------------------------ --------------------- Alan F. Feldman Alan F. Feldman President President RCP NITTANY POINTE MANAGER, INC. RCP CHINOE CREEK MANAGER, INC. By: /s/ David E. Bloom By: /s/ David E. Bloom --------------------------- -------------------- David E. Bloom David E Bloom President President
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