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Exhibit 4.3    
    


Cube Acquisition Corp.

Issuer  


CAC Holdings Corp.

Parent  


87/8% Senior Subordinated Notes Due 2011  




INDENTURE

Dated as of July 31, 2003  




U.S. Bank National Association

Trustee  









 
 

CROSS-REFERENCE TABLE    
    



	TIA Section
 
	 	Indenture Section

	310(a)(1)	 	7.10
	(a)(2)	 	7.10
	(a)(3)	 	N.A.
	(a)(4)	 	N.A.
	(a)(5)	 	7.10
	(b)	 	7.08; 7.10
	(c)	 	N.A.
	311(a)	 	7.11
	(b)	 	7.11
	(c)	 	N.A.
	312(a)	 	2.05
	(b)	 	13.03
	(c)	 	13.03
	313(a)	 	7.06
	(b)(1)	 	N.A.
	(b)(2)	 	7.06
	(c)	 	11.02
	(d)	 	7.06
	314(a)	 	4.02; 4.10; 13.02
	(b)	 	N.A.
	(c)(1)	 	13.04
	(c)(2)	 	13.04
	(c)(3)	 	N.A.
	(d)	 	N.A.
	(e)	 	13.05
	(f)	 	4.10
	315(a)	 	7.01
	(b)	 	7.05; 13.02
	(c)	 	7.01
	(d)	 	7.01
	(e)	 	6.11
	316(a)(last sentence)	 	13.06
	(a)(1)(A)	 	6.06
	(a)(1)(B)	 	6.04
	(a)(2)	 	N.A.
	(b)	 	6.07
	(c)	 	9.04
	317(a)(1)	 	6.08
	(a)(2)	 	6.09
	(b)	 	2.04
	318(a)	 	13.01
	(b)	 	N.A.
	(c)	 	N.A.




        N.A.
means Not Applicable. 





Note:
This Cross-Reference Table shall not, for any purpose, be deemed to be part of the Indenture. 






  



 
 

TABLE OF CONTENTS    
    



	 
	 	 
	 	Page

	Article 1
	

Definitions and Incorporation by Reference
	

SECTION 1.01	
 	

Definitions.  	
 	

1
	SECTION 1.02	 	Other Definitions.  	 	22
	SECTION 1.03	 	Incorporation by Reference of Trust Indenture Act	 	22
	SECTION 1.04	 	Rules of Construction	 	22
	

Article 2
	

The Securities
	

SECTION 2.01	
 	

Form and Dating	
 	

23
	SECTION 2.02	 	Execution and Authentication	 	23
	SECTION 2.03	 	Registrar and Paying Agent	 	24
	SECTION 2.04	 	Paying Agent To Hold Money in Trust	 	24
	SECTION 2.05	 	Securityholder Lists	 	24
	SECTION 2.06	 	Transfer and Exchange	 	24
	SECTION 2.07	 	Replacement Securities	 	24
	SECTION 2.08	 	Outstanding Securities	 	25
	SECTION 2.09	 	Temporary Securities	 	25
	SECTION 2.10	 	Cancellation	 	25
	SECTION 2.11	 	Defaulted Interest	 	25
	SECTION 2.12	 	CUSIP Numbers	 	25
	SECTION 2.13	 	Issuance of Additional Securities	 	25
	

Article 3
	

Redemption
	

SECTION 3.01	
 	

Notices to Trustee	
 	

26
	SECTION 3.02	 	Selection of Securities to Be Redeemed	 	26
	SECTION 3.03	 	Notice of Redemption	 	26
	SECTION 3.04	 	Effect of Notice of Redemption	 	27
	SECTION 3.05	 	Deposit of Redemption Price	 	27
	SECTION 3.06	 	Securities Redeemed in Part	 	27
	

Article 4
	

Covenants
	

SECTION 4.01	
 	

Payment of Securities	
 	

27
	SECTION 4.02	 	SEC Reports	 	28
	SECTION 4.03	 	Limitation on Indebtedness	 	28
	SECTION 4.04	 	Limitation on Restricted Payments	 	31
	SECTION 4.05	 	Limitation on Restrictions on Distributions from Restricted Subsidiaries	 	34
	SECTION 4.06	 	Limitation on Sales of Assets and Subsidiary Stock	 	35
	SECTION 4.07	 	Limitation on Affiliate Transactions	 	38
	SECTION 4.08	 	Limitation on Line of Business	 	39
	SECTION 4.09	 	Limitation on the Sale or Issuance of Capital Stock of Restricted Subsidiaries	 	39
	SECTION 4.10	 	Change of Control	 	39
	SECTION 4.11	 	Limitation on Layering; Limitation on Liens	 	40
	 	 	 	 	 





i





 

	SECTION 4.12	 	Limitation on Other Activities	 	40
	SECTION 4.13	 	Future Guarantors	 	41
	SECTION 4.14	 	Compliance Certificate	 	41
	SECTION 4.15	 	Further Instruments and Acts	 	41
	

Article 5
	

Successor Company
	

SECTION 5.01.	
 	

When Company May Merge or Transfer Assets	
 	

41
	

Article 6
	

Defaults and Remedies
	

SECTION 6.01.	
 	

Events of Default	
 	

43
	SECTION 6.02.	 	Acceleration	 	44
	SECTION 6.03.	 	Other Remedies	 	45
	SECTION 6.04.	 	Waiver of Past Defaults	 	45
	SECTION 6.05.	 	Control by Majority	 	45
	SECTION 6.06.	 	Limitation on Suits	 	45
	SECTION 6.07.	 	Rights of Holders to Receive Payment	 	46
	SECTION 6.08.	 	Collection Suit by Trustee	 	46
	SECTION 6.09.	 	Trustee May File Proofs of Claim	 	46
	SECTION 6.10.	 	Undertaking for Costs	 	46
	SECTION 6.11.	 	Waiver of Stay or Extension Laws	 	47
	

Article 7
	

Trustee
	

SECTION 7.01.	
 	

Duties of Trustee	
 	

48
	SECTION 7.02	 	Rights of Trustee	 	48
	SECTION 7.03	 	Individual Rights of Trustee	 	49
	SECTION 7.04	 	Trustee's Disclaimer	 	49
	SECTION 7.05	 	Notice of Defaults	 	49
	SECTION 7.06	 	Reports by Trustee to Holders	 	49
	SECTION 7.07	 	Compensation and Indemnity	 	49
	SECTION 7.08	 	Replacement of Trustee	 	50
	SECTION 7.09	 	Successor Trustee by Merger	 	51
	SECTION 7.10	 	Eligibility; Disqualification	 	51
	SECTION 7.11	 	Preferential Collection of Claims Against Company	 	51
	

Article 8
	

Discharge of Indenture; Defeasance
	

SECTION 8.01	
 	

Discharge of Liability on Securities; Defeasance	
 	

51
	SECTION 8.02	 	Conditions to Defeasance	 	52
	SECTION 8.03	 	Application of Trust Money	 	53
	SECTION 8.04	 	Repayment to Company	 	53
	SECTION 8.05	 	Indemnity for Government Obligations	 	53
	SECTION 8.06	 	Reinstatement	 	53




ii





 


	

Article 9
	

Amendments
	

SECTION 9.01	
 	

Without Consent of Holders	
 	

53
	SECTION 9.02	 	With Consent of Holders	 	54
	SECTION 9.03	 	Compliance with Trust Indenture Act	 	55
	SECTION 9.04	 	Revocation and Effect of Consents and Waivers	 	55
	SECTION 9.05	 	Notation on or Exchange of Securities	 	55
	SECTION 9.06	 	Trustee To Sign Amendments	 	55
	SECTION 9.07	 	Payment for Consent	 	56
	

Article 10
	

Subordination
	

SECTION 10.01.	
 	

Agreement To Subordinate	
 	

56
	SECTION 10.02.	 	Liquidation, Dissolution, Bankruptcy	 	56
	SECTION 10.03.	 	Default on Senior Indebtedness of the Company	 	56
	SECTION 10.04.	 	Acceleration of Payment of Securities	 	57
	SECTION 10.05.	 	When Distribution Must Be Paid Over	 	57
	SECTION 10.06.	 	Subrogation	 	57
	SECTION 10.07.	 	Relative Rights	 	58
	SECTION 10.08.	 	Subordination May Not Be Impaired by Company	 	58
	SECTION 10.09.	 	Rights of Trustee and Paying Agent	 	58
	SECTION 10.10.	 	Distribution or Notice to Representative	 	58
	SECTION 10.11.	 	Article 10 Not To Prevent Events of Default or Limit Right To Accelerate	 	58
	SECTION 10.12.	 	Trust Moneys Not Subordinated	 	58
	SECTION 10.13.	 	Trustee Entitled To Rely	 	58
	SECTION 10.14.	 	Trustee To Effectuate Subordination	 	59
	SECTION 10.15.	 	Trustee Not Fiduciary for Holders of Senior Indebtedness of the Company	 	59
	SECTION 10.16.	 	Reliance by Holders of Senior Indebtedness of the Company on Subordination Provisions	 	59
	

Article 11
	

Guaranties
	

SECTION 11.01.	
 	

Guaranties	
 	

59
	SECTION 11.02.	 	Limitation on Liability	 	61
	SECTION 11.03.	 	Successors and Assigns	 	61
	SECTION 11.04.	 	No Waiver	 	61
	SECTION 11.05.	 	Modification	 	61
	SECTION 11.06.	 	Release of Subsidiary Guarantor	 	61
	SECTION 11.07.	 	Contribution	 	62
	

Article 12
	

Subordination of Guaranties
	

SECTION 12.01.	
 	

Agreement To Subordinate	
 	

62
	SECTION 12.02.	 	Liquidation, Dissolution, Bankruptcy	 	62
	SECTION 12.03.	 	Default on Senior Indebtedness of Guarantor	 	62
	SECTION 12.04.	 	Demand for Payment	 	63
	SECTION 12.05.	 	When Distribution Must Be Paid Over	 	63
	SECTION 12.06.	 	Subrogation	 	63
	 	 	 	 	 





iii





 

	SECTION 12.07.	 	Relative Rights	 	64
	SECTION 12.08.	 	Subordination May Not Be Impaired by Company	 	64
	SECTION 12.09.	 	Rights of Trustee and Paying Agent	 	64
	SECTION 12.10.	 	Distribution or Notice to Representative	 	64
	SECTION 12.11.	 	Article 12 Not To Prevent Events of Default or Limit Right To Demand Payment	 	64
	SECTION 12.12.	 	Trustee Entitled To Rely	 	64
	SECTION 12.13.	 	Trustee To Effectuate Subordination	 	65
	SECTION 12.14.	 	Trustee Not Fiduciary for Holders of Senior Indebtedness of Guarantor	 	65
	SECTION 12.15.	 	Reliance by Holders of Senior Indebtedness of Guarantors on Subordination Provisions	 	65
	

Article 13
	

Miscellaneous
	

SECTION 13.01.	
 	

Trust Indenture Act Controls	
 	

65
	SECTION 13.02.	 	Notices	 	65
	SECTION 13.03.	 	Communication by Holders with Other Holders	 	66
	SECTION 13.04.	 	Certificate and Opinion as to Conditions Precedent	 	66
	SECTION 13.05.	 	Statements Required in Certificate or Opinion	 	67
	SECTION 13.06.	 	When Securities Disregarded	 	67
	SECTION 13.07.	 	Rules by Trustee, Paying Agent and Registrar	 	67
	SECTION 13.08.	 	Legal Holidays	 	67
	SECTION 13.09.	 	Governing Law	 	67
	SECTION 13.10.	 	No Recourse Against Others	 	67
	SECTION 13.11.	 	Successors	 	67
	SECTION 13.12.	 	Multiple Originals	 	67
	SECTION 13.13.	 	Table of Contents; Headings	 	67





	

 	
 	

 	
 	

 
	Rule 144A/Regulation S Appendix
	

Exhibit 1	
 	

—	
 	

Form of Initial Security
	

Exhibit A	
 	

—	
 	

Form of Exchange Security or Private Exchange Security




iv









        INDENTURE dated as of July 31, 2003, among CUBE ACQUISITION CORP., a Texas corporation (the "Company"), CAC HOLDINGS CORP., a Delaware corporation ("Parent"), and U.S. BANK
NATIONAL ASSOCIATION (the "Trustee"). 


        Each
party agrees as follows for the benefit of the other parties and for the equal and ratable benefit of the Holders of the Initial Securities and, if and when issued pursuant to a
registered exchange for Initial Securities, the Exchange Securities and, if and when issued pursuant to a private exchange for Initial Securities, the Private Exchange Securities: 


 
 

Article 1
  
    Definitions and Incorporation by Reference


        SECTION
1.01 Definitions. 


        "Additional
Assets" means (1) any property, plant or equipment used or useful in a Related Business; (2) the Capital Stock of a Person that becomes a Restricted Subsidiary
as a result of the acquisition of such Capital Stock by the Company or another Restricted Subsidiary; or (3) Capital Stock constituting a minority interest in any Person that at such time is a
Restricted Subsidiary; provided, however, that any such Restricted Subsidiary described in
clause (2) or (3) above is primarily engaged in a Related Business. 


        "Additional
Securities" means Securities issued under this Indenture after the Issue Date and in compliance with Section 2.13 and 4.03, it being understood that any Securities
issued in exchange for or replacement of any Initial Security issued on the Issue Date shall not be an Additional Security, including any such Securities issued pursuant to a Registration Rights
Agreement. 


        "Affiliate"
of any specified Person means any other Person, directly or indirectly, controlling or controlled by or under direct or indirect common control with such specified Person.
For the purposes of this definition, "control" when used with respect to any Person means the power to direct the management and policies of such Person, directly or indirectly, whether through the
ownership of voting securities, by contract or otherwise; and the terms "controlling" and "controlled" have meanings correlative to the foregoing. For purposes of Sections 4.04, 4.06 and 4.07
only, "Affiliate" shall also mean any beneficial owner of Capital Stock representing 10% or more of the total voting power of the
Voting Stock (on a fully diluted basis) of the Company or of rights or warrants to purchase such Capital Stock (whether or not currently exercisable) and any Person who would be an Affiliate of any
such beneficial owner pursuant to the first sentence hereof. 


        "Asset
Disposition" means any sale, lease, issuance, transfer or other disposition (or series of related sales, leases, transfers or dispositions) by the Company or any Restricted
Subsidiary, including any disposition by means of a merger, consolidation or similar transaction (each referred to for the purposes of this definition as a "disposition"), of 



        (1)   any
shares of Capital Stock of a Restricted Subsidiary (other than directors' qualifying shares or shares required by applicable law to be held by a Person other than
the Company or a Restricted Subsidiary); 


        (2)   all
or substantially all the assets of any division or line of business of the Company or any Restricted Subsidiary; or 


        (3)   any
other assets of the Company or any Restricted Subsidiary outside of the ordinary course of business of the Company or such Restricted Subsidiary 




other
than, in the case of clauses (1), (2) and (3) above, (A) a disposition by a Restricted Subsidiary to the Company or by the Company or a Restricted Subsidiary to a Restricted
Subsidiary, (B) for purposes of Section 4.06 only, (i) a disposition that constitutes a Restricted Payment (or would constitute a Restricted Payment but for the exclusions from
the definition thereof) permitted by Section 4.04 and (ii) a disposition of all or substantially all the assets of the Company in accordance with Section 5.01; (C) a
disposition of assets in any transaction or series of related transactions where 





 

such
assets have an aggregate Fair Market Value of less than $1.0 million; (D) a disposition of cash or Temporary Cash Investments; (E) the creation of a Lien (but not the sale or
other disposition of the property subject to such Lien); (F) the sale or disposition in the ordinary course of business of obsolete, damaged or worn out assets no longer used or useful to the
business of the Company and its Restricted Subsidiaries; (G) the sale or discount, in each case without recourse, of accounts receivable arising in the ordinary course of business, but only in
connection with the compromise or collection thereof; (H) the grant in the ordinary course of business of any non-exclusive license of patents, trademarks, registrations thereof and
other similar intellectual property; (I) any release of intangible claims or rights in connection with the loss or settlement of a bona fide lawsuit, dispute or other controversy;
(J) leases or subleases in the ordinary course of business to third persons not interfering in any material respect with the business of the Company or any of its Restricted Subsidiaries;
(K) any disposition of receivables, equipment and related assets (including contract rights of the type described in the definition of "Qualified Securitization Transaction") to a
Securitization Entity pursuant to a Qualified Securitization Transaction for the Fair Market Value thereof, including cash and Temporary Cash Investments in an amount at least equal to 75% of the Fair
Market Value thereof (for purposes of this clause (K), Purchase Money Notes will be deemed to be cash); (L) any transfer of receivables, equipment and related assets (including contract
rights of the type described in the definition of "Qualified Securitization Transaction"), or a fractional undivided interest therein, by a Securitization Entity in a Qualified Securitization
Transaction; and (M) solely for purposes of Section 4.06, any sale or disposition of all of the Capital Stock of or all or substantially all of the assets of Cassco Ice and Cold
Storage, Inc. and/or Southern Bottled Water, Inc. 


        "Attributable
Debt" in respect of a Sale/Leaseback Transaction means, as at the time of determination, the present value (discounted at the rate of interest implied in such transaction)
of the total obligations of the lessee for rental payments during the remaining term of the lease included in such Sale/Leaseback Transaction (including any period for which such lease has been
extended); provided, however, that if such Sale/Leaseback Transaction results in a Capital Lease
Obligation, the amount of Indebtedness represented thereby will be determined in accordance with the definition of "Capital Lease Obligation". 



        "Average
Life" means, as of the date of determination, with respect to any Indebtedness, the quotient obtained by dividing (1) the sum of the products of the numbers of years from
the date of determination to the dates of each successive scheduled principal payment of or redemption or similar payment with respect to such Indebtedness multiplied by the amount of such payment by
(2) the sum of all such payments. 


        "Bank
Indebtedness" means all Obligations pursuant to the Credit Agreement, including all Hedging Obligations owing to a Lender (as defined in the New Credit Agreement) or any Affiliate
of such Lender (or any Person that was a Lender or an Affiliate of such Lender at the time the applicable Commodity Agreement, Currency Agreement or Interest Rate Agreement was entered into). 



        "Board
of Directors" with respect to a Person means the Board of Directors of such Person or any committee thereof duly authorized to act on behalf of such Board. 


        "Business
Day" means each day which is not a Legal Holiday. 


        "Capital
Lease Obligation" means an obligation that is required to be classified and accounted for as a capital lease for financial reporting purposes in accordance with GAAP, and the
amount of Indebtedness represented by such obligation shall be the capitalized amount of such obligation determined in accordance with GAAP; and the Stated Maturity thereof shall be the date of the
last payment of rent or any other amount due under such lease prior to the first date upon which such lease may be terminated by the lessee without payment of a penalty. 


2





 



        "Capital
Stock" of any Person means any and all shares, interests, rights to purchase, warrants, options, participations or other equivalents of or interests in (however designated)
equity of such Person, including any Preferred Stock, but excluding any debt securities convertible into such equity. 



        "Cash
Equity Contribution" means (1) the contribution to Parent of approximately $188.1 million in cash in the form of preferred and common equity (subject to adjustment
(i) in connection with earnings shortfalls or timing changes in working capital of the Company and (ii) in connection with the amount of preferred stock repurchase discount actually
achieved) from the Permitted Holders and (2) the contribution by Parent of the amount so received to the Company as equity in exchange for Capital Stock (other than Disqualified Stock) of the
Company. 


        "Change
of Control" means the occurrence of any of the following events: 



        (1)   any
"person" (as such term is used in Sections 13(d) and 14(d) of the Exchange Act), other than one or more Permitted Holders, is or becomes the beneficial owner (as
defined in Rules 13d-3 and 13d-5 under the Exchange Act, except that for purposes of this clause (1) such person shall be deemed to have "beneficial ownership" of
all shares that any such person has the right to acquire, whether such right is exercisable immediately or only after the passage of time), directly or indirectly, of more than 50% of the total voting
power of the Voting Stock of the Company; provided, however, that for the purposes of this
clause (1), such other person shall be deemed to beneficially own any Voting Stock of a Person held by any other Person (the "parent entity"), if such other person is the beneficial owner (as
defined above in this clause (1)), directly or indirectly, of more than 50% of the voting power of the Voting Stock of such parent entity; 


        (2)   individuals
who on the Issue Date constituted the Board of Directors of the Company or the Parent Board (together with any new directors whose election by such Board of
Directors of the Company or the Parent Board or whose nomination for election by the shareholders of the Company or Parent, as
the case may be, was approved by (a) a vote of a majority of the directors of the Company or of Parent, as the case may be, then still in office who were either directors on the Issue Date or
whose election or nomination for election was previously so approved or (b) the Permitted Holders acting in accordance with the Shareholders Agreement) cease for any reason to constitute a
majority of the Board of Directors of the Company or the Parent Board then in office; 


        (3)   the
adoption of a plan relating to the liquidation or dissolution of the Company; or 


        (4)   the
merger (other than the Merger) or consolidation of Parent or the Company with or into another Person or the merger of another Person with or into Parent or the
Company, or the sale of all or substantially all the assets of Parent or the Company (determined on a consolidated basis) to another Person other than (i) a transaction in which the survivor or
transferee is a Person that is controlled by the Permitted Holders or (ii) a transaction following which (A) in the case of a merger or consolidation transaction, holders of securities
that represented 100% of the Voting Stock of Parent or the Company immediately prior to such transaction (or other securities into which such securities are converted as part of such merger or
consolidation transaction) own directly or indirectly at least a majority of the voting power of the Voting Stock of the surviving Person in such merger or consolidation transaction immediately after
such transaction and in substantially the same proportion as before the transaction and (B) in the case of a sale of assets transaction, each transferee becomes an obligor in respect of the
Securities and a Subsidiary of the transferor of such assets. 




        "Code"
means the Internal Revenue Code of 1986, as amended. 


        "Company"
means the party named as such in this Indenture until a successor replaces it and, thereafter, means the successor and, for purposes of any provision contained herein and
required by the TIA, each other obligor on the indenture securities. 


3





 



        "Commodity
Agreement" means any forward contract, commodity swap, commodity option or other similar financial agreement or arrangement relating to, or the value of which is dependent
upon, fluctuations in commodity prices. 


        "Consolidated
Coverage Ratio" as of any date of determination means the ratio of 



        (1)   the
aggregate amount of EBITDA for the period of the most recent four consecutive fiscal quarters ending on or prior to such date of determination for which internal
financial statements are available to 


        (2)   Consolidated
Interest Expense for such four fiscal quarters; 




provided, however, that 



        (A)  if
the Company or any Restricted Subsidiary has Incurred any Indebtedness since the beginning of such period that remains outstanding or if the transaction giving rise
to the need to calculate the Consolidated Coverage Ratio is an Incurrence of Indebtedness, or both, EBITDA and Consolidated Interest Expense for such period shall be calculated after giving effect on
a pro forma basis to such Indebtedness as if such Indebtedness had been Incurred on the first day of such period; 


        (B)  if
the Company or any Restricted Subsidiary has repaid, repurchased, defeased or otherwise discharged any Indebtedness since the beginning of such period or if any
Indebtedness is to be repaid, repurchased, defeased or otherwise discharged (in each case other than Indebtedness Incurred under any revolving credit facility unless such Indebtedness has been
permanently repaid and has not been replaced) on the date of the transaction giving rise to the need to calculate the Consolidated Coverage Ratio, EBITDA and Consolidated Interest Expense for such
period shall be calculated on a pro forma basis as if such discharge had occurred on the first day of such period and as if the Company or such
Restricted Subsidiary had not earned the interest income actually earned during such period in respect of cash or Temporary Cash Investments used to repay, repurchase, defease or otherwise discharge
such Indebtedness; 


        (C)  if
since the beginning of such period the Company or any Restricted Subsidiary shall have made any Asset Disposition, EBITDA for such period shall be reduced by an
amount equal to EBITDA (if positive) directly attributable to the assets which were the subject of such Asset Disposition for such period, or increased by an amount equal to EBITDA (if negative),
directly attributable thereto for such period and Consolidated Interest Expense for such period shall be reduced by an amount equal to the Consolidated Interest Expense directly attributable to any
Indebtedness of the Company or any Restricted Subsidiary repaid, repurchased, defeased or otherwise discharged with respect to the Company and its continuing Restricted Subsidiaries in connection with
such Asset Disposition for such period (or, if the Capital Stock of any Restricted Subsidiary is sold, the Consolidated Interest Expense for such period directly attributable to the Indebtedness of
such Restricted Subsidiary to the extent the Company and its continuing Restricted Subsidiaries are no longer liable for such Indebtedness after such sale); 


        (D)  if
since the beginning of such period the Company or any Restricted Subsidiary (by merger or otherwise) shall have made an Investment in any Restricted Subsidiary (or
any person which becomes a Restricted Subsidiary) or an acquisition of assets, including any acquisition of assets occurring in connection with a transaction requiring a calculation to be made
hereunder, which constitutes all or substantially all of an operating unit of a business, EBITDA and Consolidated Interest Expense for such period shall be calculated after giving  pro forma effect
thereto (including the Incurrence of any Indebtedness) as if such Investment or acquisition had occurred on the first day of such
period; and 



4





 




        (E)  if
since the beginning of such period any Person (that subsequently became a Restricted Subsidiary or was merged with or into the Company or any Restricted Subsidiary
since the beginning of such period) shall have made any Asset Disposition, any Investment or acquisition of assets that would have required an adjustment pursuant to clause (C) or
(D) above if made by the Company or a Restricted Subsidiary during such period, EBITDA and Consolidated Interest Expense for such period shall be calculated after giving  pro forma effect thereto as
if such Asset Disposition, Investment or acquisition occurred on the first day of such period. 




        For
purposes of this definition, whenever pro forma effect is to be given to an acquisition of assets, the amount of income or earnings
relating thereto and the amount of Consolidated Interest Expense associated with any Indebtedness Incurred in connection therewith, the pro forma
calculations shall be determined in good faith by a responsible financial or accounting Officer of the Company (and, to the extent applicable, may include any pro
forma expense and cost reductions calculated on a basis consistent with Regulation S-X under the Exchange Act). 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 date of
determination had been the applicable rate for the entire period (taking into account any Interest Rate Agreement applicable to such Indebtedness to the extent such Interest Rate Agreement has a
remaining term that includes some or all of the 12-month period of the date of determination). If any Indebtedness is incurred under a revolving credit facility and is being given  pro forma effect, the
interest on such Indebtedness shall be calculated based on the average daily balance of such Indebtedness for the four fiscal
quarters subject to the pro forma calculation (but, in the case of any revolving credit facility incurred other than pursuant to Section 4.03(b)(1), only to the extent such Indebtedness is
incurred solely for working capital purposes or other general corporate purposes in the ordinary course of business and not, in any case, to support directly or indirectly any acquisitions). 



        "Consolidated
Interest Expense" means, for any period, the total interest expense of the Company and its consolidated Restricted Subsidiaries, plus, to the extent not included in such
total interest expense, and to the extent incurred by the Company or its Restricted Subsidiaries, without duplication: 



        (1)   interest
expense attributable to Capital Lease Obligations; 


        (2)   amortization
of debt discount and debt issuance cost; 


        (3)   capitalized
interest; 


        (4)   non-cash
interest expense; 


        (5)   commissions,
discounts and other fees and charges owed with respect to letters of credit and bankers' acceptance financing; 


        (6)   net
payments pursuant to Hedging Obligations with respect to Interest Rate Agreements; 


        (7)   dividends
accrued in respect of all Disqualified Stock of the Company or Preferred Stock of a Restricted Subsidiary held by Persons other than the Company or a
Restricted Subsidiary (other than dividends payable solely in Capital Stock (other than Disqualified Stock) of the Company); provided,  however, that such
dividends will be multiplied by a fraction, the numerator of which is one and the denominator of which is one minus the effective
combined tax rate of the issuer of such Preferred Stock (expressed as a decimal) for such period (as estimated by the Chief Financial Officer of the Company in good faith); 


        (8)   interest
incurred in connection with Investments in discontinued operations; 



        (9)   interest
accruing on any Indebtedness of any other Person to the extent such Indebtedness is Guaranteed by (or secured by the assets of) the Company or any Restricted
Subsidiary; and 



5





 




        (10) the
cash contributions to any employee stock ownership plan or similar trust to the extent such contributions are used by such plan or trust to pay interest or fees to
any Person (other than the Company) in connection with Indebtedness Incurred by such plan or trust. 




        "Consolidated
Net Income" means, for any period, the net income of the Company and its consolidated Subsidiaries; provided,  however, that there shall not be included in
such Consolidated Net Income: 



        (1)   any
net income of any Person (other than the Company) if such Person is not a Restricted Subsidiary, except that: 



        (A)  subject
to the exclusions contained in clauses (4) and (6) below, the Company's equity in the net income of any such Person for such period shall be
included in such Consolidated Net Income in an amount equal to the aggregate amount of cash actually distributed by such Person during such period to the Company or a Restricted Subsidiary as a
dividend or other distribution (subject, in the case of a dividend or other distribution paid to a Restricted Subsidiary, to the limitations contained in clause (3) below); and 


        (B)  the
Company's equity in a net loss of any such Person for such period shall be included in determining such Consolidated Net Income; 




        (2)   any
net income (or loss) of any Person acquired by the Company or a Subsidiary in a pooling of interests transaction (or any transaction accounted for in a manner
similar to a pooling of interests) for any period prior to the date of such acquisition; 


        (3)   any
net income of any Restricted Subsidiary if such Restricted Subsidiary is subject to restrictions, directly or indirectly, on the payment of dividends or the making
of distributions by such Restricted Subsidiary, directly or indirectly, to the Company, except that: 



        (A)  subject
to the exclusion contained in clause (4) below, the net income of any such Restricted Subsidiary for such period shall be included in such Consolidated
Net Income in an amount equal to the aggregate amount of cash actually distributed by such Restricted Subsidiary during such period to the Company or another Restricted Subsidiary as a dividend or
other distribution (subject, in the case of a dividend or other distribution paid to another Restricted Subsidiary, to the limitation contained in this clause); and 


        (B)  the
net loss of any such Restricted Subsidiary for such period shall be included in determining such Consolidated Net Income; 




        (4)   any
gain (or loss) realized upon the sale or other disposition of any assets of the Company, its consolidated Subsidiaries or any other Person (including pursuant to any
sale-and-leaseback arrangement) which are not sold or otherwise
disposed of in the ordinary course of business and any gain (or loss) realized upon the sale or other disposition of any Capital Stock of any Person; 


        (5)   extraordinary
gains or losses; 


        (6)   the
cumulative effect of a change in accounting principles; 


        (7)   any
non-recurring fees, charges or other expenses (including bonus and retention payments and severance expenses) directly related to the Transactions; and 



        (8)   the
amount of any write-off of deferred financing costs or of debt issuance costs and the amount of charges related to any premium paid in connection with
repurchasing Indebtedness, in each case as a result of the Transactions. 




Notwithstanding
the foregoing, for the purposes of Section 4.04 only, there shall be excluded from Consolidated Net Income any repurchases, repayments or redemptions of Investments, proceeds 


6





 

realized
on the sale of Investments or return of capital to the Company or a Restricted Subsidiary to the extent such repurchases, repayments, redemptions, proceeds or returns increase the amount of
Restricted Payments permitted under such Section pursuant to Section 4.04(a)(3)(D). 


        "Credit
Agreement" means one or more debt facilities (including the New Credit Agreement) or other financing arrangements (including commercial paper facilities, revolving credit loans,
term loans, receivables financings, letters of credit and any debt securities or other form of debt, convertible debt or exchangeable debt financing), in each case, as amended, supplemented, extended,
renewed, restated or otherwise modified (in whole or in part and without limitation as to amount, terms, conditions, covenants and other provisions) from time to time, and any agreement (and related
document) governing Indebtedness Incurred to Refinance, in whole or in part, the borrowings and commitments then outstanding or permitted to be outstanding under such debt facility or other financing
arrangement or a successor debt facility or financing arrangement, whether by the same or any other lender or group of lenders or creditor or group of creditors. 


        "Currency
Agreement" means any foreign exchange contract, currency swap agreement or other similar agreement with respect to currency values. 


        "Default"
means any event which is, or after notice or passage of time or both would be, an Event of Default. 



        "Designated
Senior Indebtedness", with respect to a Person means (1) the Bank Indebtedness and (2) after all Bank Indebtedness has been paid in cash in full (unless
otherwise agreed upon by the requisite lenders under such Bank Indebtedness), any other Senior Indebtedness of such Person which, at the date of determination, has an aggregate principal amount
outstanding of, or under which, at the date of determination, the holders thereof are committed to lend up to, at least $25.0 million and is specifically designated by such Person in the
instrument evidencing or governing such Senior Indebtedness as "Designated Senior Indebtedness" for purposes of this Indenture. 



        "Disqualified
Stock" means, with respect to any Person, any Capital Stock which by its terms (or by the terms of any security into which it is convertible or for which it is exchangeable
at the option of the holder) or upon the happening of any event: 



        (1)   matures
or is mandatorily redeemable (other than redeemable only for Capital Stock of such Person which is not itself Disqualified Stock) pursuant to a sinking fund
obligation or otherwise; 


        (2)   is
convertible or exchangeable at the option of the holder for Indebtedness or Disqualified Stock; or 


        (3)   is
mandatorily redeemable or must be purchased upon the occurrence of any event, in whole or in part; 




in
each case on or prior to the first anniversary of the Stated Maturity of the Securities; provided,  however, that any Capital Stock that would not
constitute Disqualified Stock but for provisions thereof giving holders thereof the right to require such
Person to purchase or redeem such Capital Stock upon the occurrence of an "asset sale" or "change of control" occurring prior to the first anniversary of the Stated Maturity of the Securities shall
not constitute Disqualified Stock if: (A) the "asset sale" or "change of control" provisions applicable to such Capital Stock are not more favorable to the holders of such Capital Stock than
the terms applicable to the Securities in Sections 4.06 and 4.10 of this Indenture and (B) any such requirement only becomes operative after compliance with such terms applicable to the
Securities, including the purchase of any Securities tendered pursuant thereto. 


7





 

        "EBITDA"
for any period means the sum of Consolidated Net Income, plus the following to the extent deducted in calculating such Consolidated Net Income: 



        (1)   all
income tax expense of the Company and its consolidated Restricted Subsidiaries; 


        (2)   Consolidated
Interest Expense; 


        (3)   depreciation
and amortization expense of the Company and its consolidated Restricted Subsidiaries (excluding amortization expense attributable to a prepaid operating
activity item that was paid in cash in a prior period); 


        (4)   unrealized
non-cash gains or losses or non-cash charges in respect of Hedging Obligations required to be taken under GAAP; 


        (5)   unrealized
foreign currency translation gains or losses; and 


        (6)   all
other non-cash charges (including any goodwill impairment charges) of the Company and its consolidated Restricted Subsidiaries (excluding any such
non-cash charge to the extent that it represents an accrual of or reserve for cash expenditures in any future period), 




in
each case for such period. Notwithstanding the foregoing, the provision for taxes based on the income or profits of, and the depreciation and amortization and non-cash charges of, a
Restricted Subsidiary shall be added to Consolidated Net Income to compute EBITDA only to the extent (and in the same proportion, including by reason of minority interests) that the net income or loss
of such Restricted Subsidiary was included in calculating Consolidated Net Income and only if a corresponding amount would be permitted at the date of determination to be dividended to the Company by
such Restricted Subsidiary without prior approval (that has not been obtained), pursuant to the terms of its charter and all agreements, instruments, judgments, decrees, orders, statutes, rules and
governmental regulations applicable to such Restricted Subsidiary or its stockholders. 


        "Escrow
Agreement" means the Escrow Agreement dated July 31, 2003, among Merger Sub, CAC Holding Corp. and U.S. Bank National Association, as escrow agent. 


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


        "Fair
Market Value" means, with respect to any asset, the price (after taking into account any liabilities relating to such asset) that would be negotiated in an arm's length transaction
for cash between a willing seller and a willing and able buyer, neither of which is under any compulsion to complete the transaction, as such price is determined in good faith by management of the
Company or by the Board of Directors of the Company or a duly authorized committee thereof. Fair Market Value (other than of any asset with a public trading market) in excess of $5.0 million
shall be determined by the Board of Directors of the Company acting reasonably and in good faith and shall be evidenced by a board resolution delivered to the Trustee. 


        "Foreign
Subsidiary" means any Restricted Subsidiary of the Company that is not organized under the laws of the United States of America or any State thereof or the District of Columbia. 


        "GAAP"
means generally accepted accounting principles in the United States of America as in effect as of the Issue Date, including those set forth in: 



        (1)   the
opinions and pronouncements of the Accounting Principles Board of the American Institute of Certified Public Accountants; 


        (2)   statements
and pronouncements of the Financial Accounting Standards Board; 


        (3)   such
other statements by such other entity as approved by a significant segment of the accounting profession; and 



8





 




        (4)   the
rules and regulations of the SEC governing the inclusion of financial statements (including pro forma financial
statements) in periodic reports required to be filed pursuant to Section 13 of the Exchange Act, including opinions and pronouncements in staff accounting bulletins and similar written
statements from the accounting staff of the SEC. All ratios and computations based on GAAP contained in this Indenture shall be computed in conformity with GAAP. 




        "Guarantee"
means any obligation, contingent or otherwise, of any Person directly or indirectly guaranteeing any Indebtedness of any Person and any obligation, direct or indirect,
contingent or otherwise, of such Person: 



        (1)   to
purchase or pay (or advance or supply funds for the purchase or payment of) such Indebtedness of such Person (whether arising by virtue of partnership arrangements,
or by agreements to keep-well, to purchase assets, goods, securities or services, to take-or-pay or to maintain financial statement conditions or otherwise); or 



        (2)   entered
into for the purpose of assuring in any other manner the obligee of such Indebtedness of the payment thereof or to protect such obligee against loss in respect
thereof (in whole or in part); 




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 Parent and/or a Subsidiary Guarantor. 


        "Guaranty"
means the Parent Guaranty and/or a Subsidiary Guaranty. 


        "Guaranty
Agreement" means a supplemental indenture, in a form satisfactory to the Trustee, pursuant to which a Subsidiary Guarantor guarantees the Company's obligations with respect to
the Securities on the terms provided for in this Indenture. 


        "Hedging
Obligations" of any Person means the obligations of such Person pursuant to any Interest Rate Agreement, Currency Agreement or Commodity Agreement. 


        "Holder"
or "Securityholder" means the Person in whose name a Security 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 Restricted Subsidiary (whether by merger,
consolidation, acquisition or otherwise) shall be deemed to be Incurred by such Person at the time it becomes a Restricted Subsidiary. The term "Incurrence" when used as a noun shall have a
correlative meaning. Solely for purposes of determining compliance with Section 4.03: 



        (1)   amortization
of debt discount or the accretion of principal with respect to a non-interest bearing or other discount security; 


        (2)   the
payment of regularly scheduled interest in the form of additional Indebtedness of the same instrument or the payment of regularly scheduled dividends on Capital
Stock in the form of additional Capital Stock of the same class and with the same terms; 



        (3)   the
obligation to pay a premium in respect of Indebtedness arising in connection with the issuance of a notice of redemption or making of a mandatory offer to purchase
such Indebtedness; and 


        (4)   unrealized
losses or charges in respect of Hedging Obligations, 




        will
be deemed not to be the Incurrences of Indebtedness. 


9





 

        "Indebtedness"
means, with respect to any Person on any date of determination (without duplication): 



        (1)   the
principal in respect of (A) indebtedness of such Person for money borrowed and (B) indebtedness evidenced by notes, debentures, bonds or other similar
instruments for the payment of which such Person is responsible or liable, including, in each case, any premium on such indebtedness to the extent such premium has become due and payable; 



        (2)   all
Capital Lease Obligations of such Person and all Attributable Debt in respect of Sale/Leaseback Transactions entered into by such Person; 


        (3)   all
obligations of such Person issued or assumed as the deferred purchase price of property, all conditional sale obligations of such Person and all obligations of such
Person under any title retention agreement (but excluding trade accounts payable arising in the ordinary course of business); 


        (4)   all
obligations of such Person for the reimbursement of any obligor on any letter of credit, bankers' acceptance or similar credit transaction (other than obligations
with respect to letters of credit securing obligations (other than obligations described in clauses (1) through (3) above) entered into in the ordinary course of business of such Person
to the extent such letters of credit are not drawn upon or, if and to the extent drawn upon, such drawing is reimbursed no later than the tenth Business Day following payment on the letter of credit); 


        (5)   the
amount of all obligations of such Person with respect to the redemption, repayment or other repurchase of any Disqualified Stock of such Person or any Preferred
Stock of a Subsidiary of such Person, with the amount of Indebtedness represented by such Disqualified Stock or Preferred Stock, as applicable, being equal to the greatest of (A) its voluntary
liquidation preference, (B) its involuntary liquidation preference and (C) its maximum fixed repurchase price, but excluding, in each case, accrued and unpaid dividends, if any; 


        (6)   all
obligations of the type referred to in clauses (1) through (5) of other Persons and all dividends of other Persons for the payment of which, in either
case, such Person is responsible or liable, directly or indirectly, as obligor, guarantor or otherwise, including by means of any Guarantee; 


        (7)   all
obligations of the type referred to in clauses (1) through (6) of other Persons secured by any Lien on any property or asset of such Person (whether or
not such obligation is assumed by such Person), the amount of such obligation being deemed to be the lesser of the value of such property or assets and the amount of the obligation so secured; and 


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




Notwithstanding
the foregoing, in connection with the purchase by the Company or any Restricted Subsidiary of any business, the term "Indebtedness" will exclude (1) customary indemnification
obligations and (2) post-closing payment adjustments to which the seller may become entitled to the extent such payment is determined by a final closing balance sheet or such
payment depends on the performance of such business after the closing; provided, however, that, at the
time of closing, the amount of any such payment is not determinable and, to the extent such payment thereafter becomes fixed and determined, the amount is paid within 60 days thereafter. 


        The
amount of Indebtedness of any Person at any date shall be the outstanding balance at such date of all unconditional obligations as described above and the maximum liability, upon the
occurrence of the contingency giving rise to the obligation, of any contingent obligations at such date; provided,  however, that in the case of
Indebtedness sold at a discount, the amount of such Indebtedness at any time will be the accreted value thereof at such
time. 


10





 



        The
amount of any Disqualified Stock or Preferred Stock that does not have a fixed redemption, repayment or repurchase price will be calculated in accordance with the terms of such
Disqualified Stock or Preferred Stock as if such Disqualified Stock or Preferred Stock were redeemed, repaid or repurchased on any date on which the amount of such Disqualified Stock or Preferred
Stock is to be
determined pursuant to this Indenture; provided, however, that if such Disqualified Stock or Preferred
Stock could not be required to be redeemed, repaid or repurchased at the time of such determination, the redemption, repayment or repurchase price will be the book value of such Disqualified Stock or
Preferred Stock as reflected on the most recent financial statements of such Person. 


        "Indenture"
means this Indenture as amended or supplemented from time to time. 


        "Independent
Qualified Party" means an investment banking firm, accounting firm or appraisal firm of national standing; provided,  however, that such firm is not an
Affiliate of the Company. 



        "Interest
Rate Agreement" means any interest rate swap agreement, interest rate cap agreement or other financial agreement or arrangement with respect to exposure to interest rates. 


        "Investment"
in any Person means any direct or indirect advance, loan (other than advances to customers in the ordinary course of business that are recorded as accounts receivable on the
balance sheet of the lender) or other extensions of credit (including by way of Guarantee or similar arrangement) or capital contribution to (by means of any transfer of cash or other property to
others or any payment for property or services for the account or use of others), or any purchase or acquisition of Capital Stock, Indebtedness or other similar instruments issued by such Person.
Except as otherwise provided for herein, the amount of an Investment shall be its fair value at the time the Investment is made and without giving effect to subsequent changes in value. 


        For
purposes of the definition of "Unrestricted Subsidiary", the definition of "Restricted Payment" and Section 4.04, "Investment" shall include 



        (1)   the
portion (proportionate to the Company's equity interest in such Subsidiary) of the Fair Market Value of the net assets of any Subsidiary of the Company at the time
that such Subsidiary is designated an Unrestricted Subsidiary; provided, however, that upon a
redesignation of such Subsidiary as a Restricted Subsidiary, the Company shall be deemed to continue to have a permanent "Investment" in an Unrestricted Subsidiary equal to an amount (if positive)
equal to (A) the Company's "Investment" in such Subsidiary at the time of such redesignation less (B) the portion (proportionate to the Company's equity interest in such Subsidiary) of
the Fair Market Value of the net assets of such Subsidiary at the time of such redesignation; and 


        (2)   any
property transferred to or from an Unrestricted Subsidiary shall be valued at its Fair Market Value at the time of such transfer. 




        "Issue
Date" means July 31, 2003. 


        "Legal
Holiday" means a Saturday, a Sunday or a day on which banking institutions are not required to be open in the State of New York. 


        "Lenders"
has the meaning specified in the Credit Agreement. 


        "Lien"
means, with respect to any property or assets of any Person, any mortgage or deed of trust, pledge, hypothecation, assignment, deposit arrangement, security interest, lien,
charge, easement, encumbrance, preference, priority or other security agreement or preferential arrangement of any kind or nature whatsoever on or with respect to such property or assets, including
any Capital Lease Obligation, conditional sale or other title retention agreement having substantially the same economic effect as any of the foregoing. 


        "Merger"
means the merger of Merger Sub with and into Packaged Ice pursuant to the Merger Agreement. 


11





 



        "Merger
Agreement" means the Agreement and Plan of Merger dated as of May 12, 2003, among Parent, Merger Sub and Packaged Ice, and all other documents entered into or delivered in
connection with the Merger Agreement. 


        "Merger
Date" means the date the Merger is consummated. 


        "Merger
Sub" means Cube Acquisition Corp., a Texas corporation. 


        "Monitoring
Agreement" means the Monitoring and Management Services Agreement to be entered into on or before the Merger Date, among Parent, Packaged Ice, Merger Sub, Trimaran Fund
Management, L.L.C. and Bear Stearns Merchant Manager II, L.L.C., as amended from time to time. 


        "Net
Available Cash" from an Asset Disposition means cash payments received therefrom (including any cash payments received by way of deferred payment of principal pursuant to a note or
installment receivable or otherwise and proceeds from the sale or other disposition of any securities received as consideration, but only as and when received, but excluding any other consideration
received in the
form of assumption by the acquiring Person of Indebtedness or other obligations relating to such properties or assets or received in any other non-cash form), in each case net of 



        (1)   all
legal, title and recording tax expenses, commissions and other fees and expenses incurred, and all Federal, state, provincial, foreign and local taxes required to be
accrued as a liability under GAAP, as a consequence of such Asset Disposition; 



        (2)   all
payments made on any Indebtedness which is secured by any assets subject to such Asset Disposition, in accordance with the terms of any Lien upon or other security
agreement of any kind with respect to such assets, or which must by its terms, or in order to obtain a necessary consent to such Asset Disposition, or by applicable law, be repaid out of the proceeds
from such Asset Disposition; 


        (3)   all
distributions and other payments required to be made to minority interest holders in Restricted Subsidiaries as a result of such Asset Disposition; 



        (4)   the
deduction of appropriate amounts provided by the seller as a reserve, in accordance with GAAP, against any liabilities associated with the property or other assets
disposed in such Asset Disposition and retained by the Company or any Restricted Subsidiary after such Asset Disposition; and 


        (5)   any
portion of the purchase price from an Asset Disposition placed in escrow, whether as a reserve for adjustment of the purchase price, for satisfaction of indemnities
in respect of such Asset Disposition or otherwise in connection with that Asset Disposition; provided,  however, that upon the termination of that escrow,
Net Available Cash will be increased by any portion of funds in the escrow that are released to the
Company or any Restricted Subsidiary. 




        "Net
Cash Proceeds", with respect to any issuance or sale of Capital Stock or Indebtedness, means the cash proceeds of such issuance or sale net of attorneys' fees, accountants' fees,
underwriters' or placement agents' fees, discounts or commissions and brokerage, consultant and other fees actually incurred in connection with such issuance or sale and net of taxes paid or payable
as a result thereof. 


        "New
Credit Agreement" means the credit agreement to be entered into by and among Parent, Packaged Ice, certain Subsidiaries of Packaged Ice, the lenders referred to therein, Credit
Suisse First Boston, Cayman Islands Branch, as Administrative Agent, Canadian Imperial Bank of Commerce, as Co-Syndication Agent, and Bear Stearns Corporate Lending Inc., as
Co-Syndication Agent, together with the related documents thereto (including the notes, the term loans and revolving loans thereunder, any guarantees and security documents), as amended,
extended, renewed, refunded, restated, supplemented or modified (in whole or in part, and without limitation as to the amount, terms, conditions, covenants and other provisions) from time to time. 


12





 



        "Non-Recourse
Securitization Entity Indebtedness" has the meaning set forth in the definition of Securitization Entity. 



        "Obligations"
means, with respect to any Indebtedness, all obligations for principal, premium, interest (including any interest accruing subsequent to the filing of a petition in
bankruptcy, reorganization or similar proceeding at the rate provided for in the documentation with respect thereto, whether or not such interest is an allowed claim under applicable state, federal or
foreign law), penalties, fees, indemnifications, reimbursements (including in respect of letters of credit), and other amounts payable pursuant to the documentation governing such Indebtedness. 


        "Offering
Circular" means the confidential Offering Circular dated July 17, 2003, used in connection with the offering of the Initial Securities to be issued on the Issue Date. 



        "Officer"
means the Chairman of the Board, the President, any Vice President, the Treasurer or the Secretary of the Company. 


        "Officers'
Certificate" means a certificate signed by two Officers. 


        "Opinion
of Counsel" means a written opinion from legal counsel who is acceptable to the Trustee. The counsel may be an employee of or counsel to the Company or the Trustee. 


        "Packaged
Ice" means Packaged Ice, Inc., a Texas corporation. 


        "Parent"
means CAC Holdings Corp., a Delaware corporation. 


        "Parent
Board" means the Board of Directors of Parent or any committee thereof duly authorized to act on behalf of such Board. 


        "Parent
Guaranty" means the Guarantee by CAC Holdings Corp. of the Company's obligations with respect to the Securities. 


        "Permitted
Holders" means (i) Trimaran Fund Management, L.L.C., Trimaran Fund II, L.L.C., Trimaran Parallel Fund II, L.P., Trimaran Capital, L.L.C., CIBC Employee Private Equity
Fund (Trimaran) Partners and CIBC MB Inc., (ii) Bear Stearns Merchant Capital II, L.P., Bear Stearns Merchant Banking Partners II, L.P., Bear Stearns Merchant Banking Investors II, L.P.,
Bear Stearns MB-PSERS II, L.P., The BSC Employee Fund III, L.P. and the BSC Employee Fund IV, L.P., (iii) any controlled Affiliate of any Person referred to in clauses (i) or
(ii) above that is organized by such Person primarily for the purpose of making equity or debt investments in one or more Persons, (iv) any officer or director of the Company who owns
common stock of Parent immediately after giving effect to the Merger and (v) any Related Party. Except for a Permitted Holder specifically identified by name, in determining whether Voting
Stock is owned by a Permitted Holder, only Voting Stock acquired by a Permitted Holder in its described capacity will be treated as "beneficially owned" by such Permitted Holder. 


        "Permitted
Investment" means an Investment by the Company or any Restricted Subsidiary in: 



        (1)   the
Company, a Restricted Subsidiary or a Person that will, upon the making of such Investment, become a Restricted Subsidiary;  provided, however, that the
primary business of such Restricted Subsidiary is a Related Business; 


        (2)   another
Person if, as a result of such Investment, such other Person is merged or consolidated with or into, or transfers or conveys all or substantially all its assets
to, the Company or a Restricted Subsidiary; provided, however, that such Person's primary business is a
Related Business; 


        (3)   cash
and Temporary Cash Investments; 



13





 




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


        (5)   payroll,
travel and similar advances to cover matters that are expected at the time of such advances ultimately to be treated as expenses for accounting purposes and
that are made in the ordinary course of business; 


        (6)   loans
or advances to employees made in the ordinary course of business of the Company or such Restricted Subsidiary; 



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


        (8)   any
Person to the extent such Investment represents the non-cash portion of the consideration received for (a) an Asset Disposition as permitted
pursuant to Section 4.06 or (b) a disposition of any assets not constituting an Asset Disposition; 


        (9)   any
Person where such Investment was acquired by the Company or any of its Restricted Subsidiaries (a) in exchange for any other Investment or accounts receivable
held by the Company or any such Restricted Subsidiary in connection with or as a result of a bankruptcy, workout, reorganization or recapitalization of the issuer of such other Investment or accounts
receivable or (b) as a result of a foreclosure by the Company or any of its Restricted Subsidiaries with respect to any secured Investment or other transfer of title with respect to any secured
Investment in default; 


        (10) any
Person to the extent such Investments consist of prepaid expenses, negotiable instruments held for collection and lease, utility and workers' compensation,
performance and other similar deposits made in the ordinary course of business by the Company or any Restricted Subsidiary; 


        (11) any
Person to the extent such Investments consist of Hedging Obligations otherwise permitted under Section 4.03; 


        (12) any
Person existing on the Issue Date, and any extension, modification or renewal of any such Investments existing on the Issue Date, but only to the extent not
involving additional advances, contributions or other Investments of cash or other assets or other increases thereof (other than as a result of the accrual or accretion of interest or original issue
discount or the issuance of pay-in-kind securities, in each case, pursuant to the terms of such Investment as in effect on the Issue Date); 



        (13) Investments
by the Company in a Securitization Entity or any Investment by a Securitization Entity in any other Person in connection with a Qualified Securitization
Transaction which Investments consist of the transfer of receivables, equipment and related assets; provided,  however, that any Investment in a
Securitization Entity is in the form of (a) a Purchase Money Note, (b) an equity interest,
(c) obligations of the Securitization Entity to pay the purchase price for assets transferred to it or (d) interests in either (x) equipment owned by the Company or a Restricted
Subsidiary or (y) accounts receivable generated by the Company or a Restricted Subsidiary and, in each case, transferred to such Securitization Entity or other Person in connection with a
Qualified Securitization Transaction; and 


        (14) Persons
to the extent such Investments, when taken together with all other Investments made pursuant to this clause (14) outstanding on the date such Investment
is made, do not exceed $20.0 million. 



14





 





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


        "Preferred
Stock", as applied to the Capital Stock of any Person, means 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 or involuntary liquidation or dissolution of such Person, over shares of Capital Stock of any other class of such Person. 



        "principal"
of a Security means the principal of the Security plus the premium, if any, payable on the Security which is due or overdue or is to become due at the relevant time. 


        "Purchase
Agreement" means the Purchase Agreement dated July 17, 2003, among Parent, Merger Sub, Credit Suisse First Boston LLC, Bear Stearns & Co. Inc. and CIBC
World Markets Corp. 


        "Purchase
Money Note" means a promissory note of a Securitization Entity evidencing a line of credit, which may be irrevocable, from the Company or any Subsidiary of the Company in
connection with a Qualified Securitization Transaction to a Securitization Entity, which note shall be repaid from cash available to the Securitization Entity, other than amounts required to be
established as reserves pursuant to agreements, amounts paid to investors in respect of interest, principal and other amounts paid in connection with the purchase of newly generated receivables or
newly acquired equipment. 


        "Qualified
Equity Offering" means a public or private offering of Capital Stock (other than Disqualified Stock) of Parent or the Company. 


        "Qualified
Securitization Transaction" means any transaction or series of transactions that may be entered into by the Company or any of its Subsidiaries pursuant to which the Company or
any of its Subsidiaries may sell, convey or otherwise transfer to (1) a Securitization Entity, in the case of a transfer by the Company or any of its Subsidiaries, and (b) any other
Person, in the case of a transfer by a Securitization Entity, or may grant a security interest in, any accounts receivable or equipment, whether now existing or arising or acquired in the future, of
the Company or any of its Subsidiaries, and any assets related thereto, including all collateral securing such accounts receivable and equipment, all contracts and contract rights and all guarantees
or other obligations in respect of such accounts receivable and equipment, proceeds of such accounts receivable and equipment and other assets, including contract rights, that are customarily
transferred or in respect of which security interests are customarily granted in connection with asset securitization transactions involving accounts receivable and equipment. 



        "Refinance"
means, in respect of any Indebtedness, to refinance, extend, renew, refund, repay, prepay, redeem, purchase, defease or retire, or to issue other Indebtedness in exchange or
replacement for, such Indebtedness. "Refinanced" and "Refinancing" shall have correlative meanings. 


        "Refinancing
Indebtedness" means Indebtedness that Refinances any Indebtedness of the Company or any Restricted Subsidiary existing on the Merger Date or Incurred in compliance with this
Indenture, including Indebtedness that Refinances Refinancing Indebtedness; provided, however, that: 



        (1)   such
Refinancing Indebtedness has a Stated Maturity no earlier than the Stated Maturity of the Indebtedness being Refinanced; 


        (2)   such
Refinancing Indebtedness has an Average Life at the time such Refinancing Indebtedness is Incurred that is equal to or greater than the Average Life of the
Indebtedness being Refinanced; 


        (3)   such
Refinancing Indebtedness has an aggregate principal amount (or if Incurred with original issue discount, an aggregate issue price) that is equal to or less than the
aggregate principal amount (or if Incurred with original issue discount, the aggregate accreted value) then 



15





 




outstanding
or committed (plus fees and expenses, including any premium and defeasance costs) under the Indebtedness being Refinanced; and 


        (4)   if
the Indebtedness being Refinanced is subordinated in right of payment to the Securities, such Refinancing Indebtedness is subordinated in right of payment to the
Securities at least to the same extent as the Indebtedness being Refinanced; 




provided further, however, that Refinancing Indebtedness shall not include (A) Indebtedness of a
Subsidiary that Refinances Indebtedness of the Company, (B) Indebtedness of the Company or a Restricted Subsidiary that Refinances Indebtedness of an Unrestricted Subsidiary or
(C) Indebtedness under any Credit Agreement. 


        "Registration
Rights Agreement" means the Registration Rights Agreement dated July 17, 2003, among Parent, Merger Sub, Credit Suisse First Boston LLC, Bear, Stearns &
Co. Inc. and CIBC World Markets Corp. 


        "Related
Business" means any business in which Packaged Ice or any of its Subsidiaries was engaged on the Merger Date and any business related, ancillary or complementary to any business
of Packaged Ice in which Packaged Ice or any of its Subsidiaries was engaged on the Merger Date or any reasonable extension, development or expansion of the business of Packaged Ice or the Restricted
Subsidiaries. 


        "Related
Party" means (1) any controlling stockholder, controlling member, general partner, majority owned Subsidiary, or spouse or immediate family member (in the case of an
individual) of any Permitted Holder, (2) any estate, trust, corporation, partnership or other entity, the beneficiaries, stockholders, partners, owners or Persons holding a controlling interest
of which consist solely of one or more Permitted Holders and/or such other Persons referred to in the immediately preceding clause (1), or (3) any executor, administrator, trustee,
manager, director or other similar fiduciary of any Person referred to in the immediately preceding clause (2) acting solely in such capacity. 


        "Representative"
means, with respect to a Person, any trustee, agent or representative (if any) for an issue of Senior Indebtedness of such Person. 


        "Restricted
Payment" with respect to any Person means 



        (1)   the
declaration or payment of any dividends or any other distributions of any sort in respect of its Capital Stock (including any payment in connection with any merger
or consolidation involving such Person) or similar payment to the direct or indirect holders of its Capital Stock (other than (A) dividends or distributions payable solely in its Capital Stock
(other than Disqualified Stock), (B) dividends or distributions payable solely to the Company or a Restricted Subsidiary and (C) pro rata dividends or other distributions made by a
Subsidiary that is not a Wholly Owned Subsidiary to minority stockholders (or owners of an equivalent interest in the case of a Subsidiary that is an entity other than a corporation)); 



        (2)   the
purchase, redemption or other acquisition or retirement for value of any Capital Stock of the Company held by any Person (other than a Restricted Subsidiary) or of
any Capital Stock of a Restricted Subsidiary held by any Affiliate of the Company (other than a Restricted Subsidiary), including in connection with any merger or consolidation and including the
exercise of any option to exchange any Capital Stock (other than into Capital Stock of the Company that is not Disqualified Stock); 


        (3)   the
purchase, repurchase, redemption, defeasance or other acquisition or retirement for value, prior to scheduled maturity, scheduled repayment or scheduled sinking fund
payment of any Subordinated Obligations of such Person (other than (A) from the Company or a Restricted Subsidiary or (B) the purchase, repurchase, redemption, defeasance or other
acquisition or retirement for value of Subordinated Obligations purchased in anticipation of satisfying a sinking 



16





 




fund
obligation, principal installment or final maturity, in each case due within one year of the date of such purchase, repurchase redemption, defeasance or other acquisition or retirement for
value); or 


        (4)   the
making of any Investment (other than a Permitted Investment) in any Person. 




        Notwithstanding
the foregoing, the payment of, or the declaration or making of distributions to Parent solely to allow Parent to pay, (a) an annual $500,000 monitoring fee (or
such higher amount if the $500,000 fee is increased pursuant to the Monitoring Agreement in connection with acquisitions by an amount equal to 1% of the trailing twelve-month pro forma EBITDA of
acquired businesses) pursuant to the Monitoring Agreement and (b) transaction advisory or other similar fees and reimbursable fees and expenses provided for in the Monitoring Agreement shall
not constitute a Restricted Payment. 


        "Restricted
Subsidiary" means any Subsidiary of the Company that is not an Unrestricted Subsidiary. 


        "Sale/Leaseback
Transaction" means an arrangement relating to property owned by the Company or a Restricted Subsidiary on the Issue Date or thereafter acquired by the Company or a
Restricted Subsidiary whereby the Company or a Restricted Subsidiary transfers such property to a Person and the Company or a Restricted Subsidiary leases it from such Person. 


        "SEC"
means the U.S. Securities and Exchange Commission. 



        "Secured
Indebtedness" means any Indebtedness of the Company secured by a Lien. 


        "Securities"
means the Securities issued under this Indenture. 


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


        "Securitization
Entity" means a wholly owned Subsidiary (or a wholly owned Subsidiary of another Person in which the Company or any Subsidiary of the Company makes an Investment and in
which the Company or any Subsidiary of the Company transfers accounts receivable or equipment and related assets) that engages in no activities other than in connection with the financing of accounts
receivable or equipment and that is designated by the Board of Directors of the Company (as provided below) as a Securitization Entity and: 



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



        (a)   is
guaranteed by the Company or any Restricted Subsidiary (excluding guarantees of obligations (other than the principal of, and interest on, Indebtedness) pursuant to
Standard Securitization Undertakings); 


        (b)   is
recourse to or obligates the Company or any Restricted Subsidiary (other than such Securitization Entity) in any way other than pursuant to Standard Securitization
Undertakings; or 


        (c)   subjects
any property or asset of the Company or any Restricted Subsidiary (other than such Securitization Entity), directly or indirectly, contingently or otherwise, to
the satisfaction thereof, other than pursuant to Standard Securitization Undertakings; 


(such
Indebtedness described in this clause (1), "Non-Recourse Securitization Entity Indebtedness"); 




        (2)   with
which neither the Company nor any Restricted Subsidiary (other than such Securitization Entity) has any material contract, agreement, arrangement or understanding
other than those that might be obtained at the time from Persons that are not Affiliates of the Company, 



17





 

other
than fees payable in the ordinary course of business in connection with servicing accounts receivable of such entity; and 



        (3)   to
which neither the Company nor any Restricted Subsidiary (other than such Securitization Entity) has any obligation to maintain or preserve such entity's financial
condition or cause such entity to achieve certain levels of operating results. 




        Any
designation of a Subsidiary as a Securitization Entity shall be evidenced to the Trustee by filing with the Trustee a certified copy of the resolution of the Board of Directors of
the Company giving effect to the designation and an Officers' Certificate certifying that the designation complied with the preceding conditions and was permitted by this Indenture. 


        "Senior
Indebtedness" means with respect to any Person: 



        (1)   Indebtedness
of such Person, whether outstanding on the Issue Date or thereafter Incurred; and 


        (2)   all
other Obligations of such Person in respect of Indebtedness described in clause (1) above, 




unless,
in the case of clauses (1) and (2), in the instrument creating or evidencing the same or pursuant to which the same is outstanding it is provided that such Indebtedness or other
obligations are subordinate or pari passu in right of payment to the Securities or the Subsidiary Guaranty of such Person, as the case may be;  provided,
however, that Senior Indebtedness shall not include: 



        (A)  any
obligation of such Person to the Company or any Subsidiary; 


        (B)  except
for purposes of clause (2) of Section 4.11, any liability for Federal, state, local or other taxes owed or owing by such Person; 



        (C)  except
for purposes of clause (2) of Section 4.11, any accounts payable or other liability to trade creditors arising in the ordinary course of business
(including Guarantees thereof or instruments evidencing such liabilities); 


        (D)  any
Indebtedness or other Obligation of such Person which is subordinate or junior in right of payment to any other Indebtedness or other Obligation of such Person; or 


        (E)  that
portion of any Indebtedness which at the time of Incurrence is Incurred in violation of this Indenture; provided,  however, that such Indebtedness shall be
deemed not to have been Incurred in violation of this Indenture for purposes of this clause if such
Indebtedness consists of Bank Indebtedness and the holders of such Indebtedness or their agent or representative (A) had no actual knowledge at the time of Incurrence that the Incurrence of
such Indebtedness violated this Indenture and (B) shall have received a certificate from an officer of the Company to the effect that the Incurrence of such Indebtedness does not violate the
provisions of this Indenture. 




        "Senior
Subordinated Indebtedness" means, with respect to a Person, the Securities (in the case of the Company), the Subsidiary Guaranty (in the case of a Subsidiary Guarantor) and any
other Indebtedness of such Person that specifically provides that such Indebtedness is to rank pari passu with the Securities or such Subsidiary
Guaranty, as the case may be, in right of payment and is not subordinated by its terms in right of payment to any Indebtedness or other obligation of such Person which is not Senior Indebtedness of
such Person. 


        "Shareholders
Agreement" means the agreement among the Permitted Holders that provides for voting arrangements for the election of directors of Parent and the Company. 


        "Significant
Subsidiary" means any Restricted Subsidiary that would be a "Significant Subsidiary" of the Company within the meaning of Rule 1-02 under
Regulation S-X promulgated by the SEC as in effect on the Issue Date. 


18





 



        "Standard
Securitization Undertakings" means representations, warranties, covenants and indemnities entered into by the Company or any Restricted Subsidiary that are reasonably customary
in an accounts receivable or equipment securitization transaction, including servicing of the obligations thereunder. 


        "Stated
Maturity" means, with respect to any security, the date specified in such security as the fixed date on which the final payment of principal of such security is due and payable,
including pursuant to
any mandatory redemption provision (but excluding any provision providing for the repurchase of such security at the option of the holder thereof upon the happening of any contingency unless such
contingency has occurred). 


        "Subordinated
Obligation" means, with respect to a Person, any Indebtedness of such Person (whether outstanding on the Issue Date or thereafter Incurred) which is subordinate or junior
in right of payment to the Securities or a Subsidiary Guaranty of such Person, as the case may be, pursuant to a written agreement to that effect. 


        "Subsidiary"
means, with respect to any Person, any corporation, association, partnership or other business entity of which more than 50% of the total voting power of shares of Voting
Stock is at the time owned or controlled, directly or indirectly, by (1) such Person, (2) such Person and one or more Subsidiaries of such Person or (3) one or more Subsidiaries
of such Person. 


        "Subsidiary
Guarantor" means each Subsidiary of the Company that executes this Indenture as a guarantor on the Merger Date and each other Subsidiary of the Company that thereafter
guarantees the Securities pursuant to the terms of this Indenture, in each case, unless and until released from such guaranties in accordance with the terms of this Indenture. 


        "Subsidiary
Guaranty" means a Guarantee by a Subsidiary Guarantor of the Company's obligations with respect to the Securities. 



        "Tax
Sharing Agreement" means any tax sharing agreement between the Company and Parent or any other Person with which Parent or the Company is required to, or is permitted to,
file a consolidated, combined or unitary tax return or with which Parent or the Company is or could be part of a consolidated group for tax purposes. 


        "Temporary
Cash Investments" means any of the following: 



        (1)   any
investment in direct obligations of the United States of America or any agency thereof or obligations guaranteed by the United States of America or any agency
thereof; 


        (2)   investments
in demand and time deposit accounts, certificates of deposit and money market deposits maturing within one year of the date of acquisition thereof issued by
a bank or trust company which is organized under the laws of the United States of America, any State thereof or any foreign country recognized by the United States of America, and which bank or trust
company has capital, surplus and undivided profits aggregating in excess of $50.0 million (or the foreign currency equivalent thereof) and has outstanding debt which is rated "A" (or such
similar equivalent rating) or higher by at least one
nationally recognized statistical rating organization (as defined in Rule 436 under the Securities Act) or any money-market fund sponsored by a registered broker dealer or mutual fund
distributor; 


        (3)   repurchase
obligations with a term of not more than 90 days for underlying securities of the types described in clause (1) above entered into with a bank
meeting the qualifications described in clause (2) above; 


        (4)   investments
in commercial paper, maturing not more than one year after the date of acquisition, issued by a corporation (other than an Affiliate of the Company)
organized and in existence under the laws of the United States of America or any foreign country recognized by the 



19





 




United
States of America with a rating at the time as of which any investment therein is made of "P-1" (or higher) according to Moody's Investors Service, Inc. or "A-1"
(or higher) according to Standard and Poor's Ratings Group; 


        (5)   investments
in securities with maturities of one year or less from the date of acquisition issued or fully guaranteed by any state, commonwealth or territory of the
United States of America, or by any political subdivision or taxing authority thereof, and rated at least "A" by Standard & Poor's Ratings Group or "A" by Moody's Investors
Service, Inc.; and 


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




        "TIA"
means the Trust Indenture Act of 1939 (15 U.S.C. §§ 77aaa-77bbbb) as in effect on the Issue
Date. 


        "Transactions"
means, collectively, the following transactions to occur on or prior to the Merger Date: (1) the consummation of the Merger, with Packaged Ice surviving the Merger
as a wholly owned subsidiary of Parent and assuming all the obligations of Merger Sub under the Securities, this Indenture, the Escrow Agreement, the Purchase Agreement and the Registration Rights
Agreement, (2) the execution and delivery of the Credit Agreement and the initial borrowings thereunder, (3) the closing of the tender offer for and the receipt of the requisite consents
in connection with the consent solicitation in respect of Packaged Ice's existing 93/4% Senior Notes Due 2005, or the other satisfaction or discharge of such Senior Notes,
(4) the repayment of all amounts outstanding under Packaged Ice's existing senior secured credit facility, (5) the redemption or repurchase of all of Packaged Ice's existing preferred
stock (together with all accrued dividends), (6) the purchase of certain of Packaged Ice's leased assets, (7) the prepayment of certain of Packaged Ice's swap obligations, (8) the
payment of change of control compensation to Packaged Ice's management, (9) the Cash Equity Contribution and
(10) the payment of all fees and expenses then due and owing that are required to be paid on or prior to the Merger Date in connection with the offering of the Securities. 


        "Trustee"
means the party named as such in this Indenture until a successor replaces it and, thereafter, means the successor. 


        "Trust
Officer" means the Chairman of the Board, the President or any other officer or assistant officer of the Trustee assigned by the Trustee to administer its corporate trust matters. 



        "Uniform
Commercial Code" means the New York Uniform Commercial Code as in effect from time to time. 


        "Unrestricted
Subsidiary" means: 



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


        (2)   any
Subsidiary of an Unrestricted Subsidiary. 




The
Board of Directors of the Company may designate any Subsidiary of the Company (including any newly acquired or newly formed Subsidiary) to be an Unrestricted Subsidiary unless such Subsidiary or
any of its Subsidiaries owns any Capital Stock or Indebtedness of, or holds any Lien on any property of, the Company or any other Subsidiary of the Company that is not a Subsidiary of the Subsidiary
to be so designated or another Unrestricted Subsidiary; provided, however, that either (A) the
Subsidiary to be so designated has total assets of $1,000 or less or (B) if such Subsidiary has assets greater than $1,000, such designation would be permitted under Section 4.04. The
Board of Directors of the Company may designate any Unrestricted Subsidiary to be a Restricted Subsidiary; provided,  however, that immediately after giving
effect to such designation (A) the Company could Incur $1.00 of 


20





 

additional
Indebtedness under Section 4.03(a) and (B) no Default shall have occurred and be continuing. Any such designation by the Board of Directors of the Company shall be evidenced
to the Trustee by promptly filing with the Trustee a copy of the resolution of the Board of Directors of the Company giving effect to such designation and an Officers' Certificate certifying that such
designation complied with the foregoing provisions. 


        "U.S.
Dollar Equivalent" means with respect to any monetary amount in a currency other than U.S. dollars, at any time for determination thereof, the amount of U.S. dollars obtained by
converting such foreign currency involved in such computation into U.S. dollars at the spot rate for the purchase of U.S. dollars with the applicable foreign currency as published in  The Wall Street Journal in the "Exchange Rates" column under the heading "Currency Trading" on the date two Business Days prior to such determination. 



        Except
as described in Section 4.03, whenever it is necessary to determine whether the Company has complied with any covenant in this Indenture or a Default has occurred and an
amount is expressed in a currency other than U.S. dollars, such amount will be treated as the U.S. Dollar Equivalent determined as of the date such amount is initially determined in such currency. 


        "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. 



        "Voting
Stock" of a Person means all classes of Capital Stock or other interests (including partnership interests) of such Person then outstanding and normally entitled (without regard
to the occurrence of any contingency) to vote in the election of directors, managers or trustees thereof. 


        "Wholly
Owned Subsidiary" means a Restricted Subsidiary all the Capital Stock of which (other than directors' qualifying shares) is owned by the Company or one or more Wholly Owned
Subsidiaries. 


21









  





        SECTION 1.02    Other Definitions.    



	Term
	 	Defined in

Section

	"Affiliate Transaction"	 	4.07(a)
	"Appendix"	 	2.01
	"Bankruptcy Law"	 	6.01
	"Blockage Notice"	 	10.03
	"Change of Control Offer"	 	4.10(b)
	"covenant defeasance option"	 	8.01(b)
	"Custodian"	 	6.01
	"Event of Default"	 	6.01
	"Exchange Securities"	 	Rule 144A/Regulation S Appendix
	"Guarantor Blockage Notice"	 	12.03
	"Guarantor Payment Blockage Period"	 	12.03
	"Guarantor Payment Default"	 	12.03
	"Initial Securities"	 	Rule 144A/Regulation S Appendix
	"legal defeasance option"	 	8.01(b)
	"Offer"	 	4.06(b)
	"Offer Amount"	 	4.06(c)(2)
	"Offer Period"	 	4.06(c)(2)
	"Paying Agent"	 	2.03
	"Payment Blockage Period"	 	10.03
	"Payment Default"	 	10.03
	"Private Exchange Securities"	 	Rule 144A/ Regulation S Appendix
	"Purchase Date"	 	4.06(c)(1)
	"Registrar"	 	2.03
	"Successor Company"	 	5.01(a)(1)





        SECTION
1.03    Incorporation by Reference of Trust Indenture Act.    This Indenture is subject to the mandatory
provisions of the TIA which are incorporated by reference in and made a part of this Indenture. The following TIA terms have the following meanings: 


        "Commission"
means the SEC; 


        "indenture
securities" means the Securities and each Guaranty; 


        "indenture
security holder" means a Securityholder; 


        "indenture
to be qualified" means this Indenture; 


        "indenture
trustee" or "institutional trustee" means the Trustee; and 


        "obligor"
on the indenture securities means the Company, Parent, each Subsidiary Guarantor and any other obligor on the indenture securities. 



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


        SECTION
1.04    Rules of Construction.    Unless the context otherwise requires: 



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



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


        (3)   "or"
is not exclusive; 



22





 




        (4)   "including"
means including without limitation; 


        (5)   words
in the singular include the plural and words in the plural include the singular; 



        (6)   unsecured
Indebtedness shall not be deemed to be subordinate or junior to secured Indebtedness merely by virtue of its nature as unsecured Indebtedness; 


        (7)   secured
Indebtedness shall not be deemed to be subordinate or junior to any other secured Indebtedness merely because it has a junior priority with respect to the same
collateral; 


        (8)   the
principal amount of any noninterest bearing or other discount security at any date shall be the principal amount thereof that would be shown on a balance sheet of
the issuer dated such date prepared in accordance with GAAP; and 


        (9)   all
references to the date the Securities were originally issued shall refer to the Issue Date. 




        To
the extent Packaged Ice or any Restricted Subsidiary Incurs Indebtedness, makes any Restricted Payments, consummates any Asset Dispositions, enters into any Affiliate Transactions or
otherwise takes any action or engages in any activities during the period beginning on the Issue Date and ending on the Merger Date, such actions an activities shall be treated and classified under
this Indenture
(including impacting relevant baskets) as if this Indenture and the covenants set forth herein had applied to Packaged Ice and the Restricted Subsidiaries during such period. 


 
 

Article 2
  
    The Securities


        SECTION
2.01    Form and Dating.    Provisions relating to the Initial Securities, the Private Exchange Securities and
the Exchange Securities are set forth in the Rule 144A/Regulation S Appendix attached hereto (the "Appendix") which is hereby incorporated in, and expressly made part of, this Indenture.
The Initial Securities and the Trustee's certificate of authentication shall be substantially in the form of Exhibit 1 to the Appendix which is hereby incorporated in, and expressly made a part
of, this Indenture. The Exchange Securities, the Private Exchange Securities and the Trustee's certificate of authentication shall be substantially in the form of Exhibit A, which is hereby
incorporated in and expressly made a part of this Indenture. The Securities may have notations, legends or endorsements required by law, stock exchange rule, agreements to which the Company is
subject, if any, or usage (provided that any such notation, legend or endorsement is in a form acceptable to the Company). Each Security shall be dated the date of its authentication. The terms of the
Securities set forth in the Appendix and Exhibit A are part of the terms of this Indenture. 


        SECTION
2.02    Execution and Authentication.    Two Officers shall sign the Securities for the Company by manual or
facsimile signature. The Company's seal shall be impressed, affixed, imprinted or reproduced on the Securities and may be in facsimile form. 



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


        A
Security shall not be valid until an authorized signatory of the Trustee manually signs the certificate of authentication on the Security. The signature shall be conclusive evidence
that the Security has been authenticated under this Indenture. 


        The
Trustee may appoint an authenticating agent reasonably acceptable to the Company to authenticate the Securities. Unless limited by the terms of such appointment, an authenticating
agent may authenticate Securities whenever the Trustee may do so. Each reference in this Indenture to authentication by the Trustee includes authentication by such agent. An authenticating agent has
the same rights as any Registrar, Paying Agent or agent for service of notices and demands. 


23





 



        SECTION
2.03    Registrar and Paying Agent.    The Company shall maintain an office or agency where Securities may be
presented for registration of transfer or for exchange (the "Registrar") and an office or agency where Securities may be presented for payment (the "Paying Agent"). The Registrar shall keep a register
of the Securities and of their transfer and exchange. The Company may have one or more co-registrars and one or more additional paying agents. The term "Paying Agent" includes any
additional paying agent. 


        The
Company shall enter into an appropriate agency agreement with any Registrar, Paying Agent or co-registrar not a party to this Indenture, which shall incorporate the terms
of the TIA. The agreement shall implement the provisions of this Indenture that relate to such agent. The Company shall notify the Trustee of the name and address of any such agent. If the Company
fails to maintain a Registrar or Paying Agent, the Trustee shall act as such and shall be entitled to appropriate compensation therefor pursuant to Section 7.07. The Company or any Wholly Owned
Subsidiary incorporated or organized within The United States of America may act as Paying Agent, Registrar, co-registrar or transfer agent. 


        The
Company initially appoints the Trustee as Registrar and Paying Agent in connection with the Securities. 


        SECTION
2.04    Paying Agent To Hold Money in Trust.    Prior to 10:00 AM New York time on each due date of the
principal and interest on any Security, the Company shall deposit with the Paying Agent a sum sufficient to pay such principal and interest when so becoming due. The Company shall require each Paying
Agent (other than the Trustee) to agree in writing that the Paying Agent shall hold in trust for the benefit of Securityholders or the Trustee all money held by the Paying Agent for the payment of
principal of or interest on the Securities and shall notify the Trustee of any default by the Company in making any such payment. If the Company or a Subsidiary acts as Paying Agent, it shall
segregate the money held by it as Paying Agent and hold it as a separate trust fund. The Company at any time may require a Paying Agent to pay all money held by it to the Trustee and to account for
any funds disbursed by the Paying Agent. Upon complying with this Section, the Paying Agent shall have no further liability for the money delivered to the Trustee. 



        SECTION
2.05    Securityholder Lists.    The Trustee shall preserve in as current a form as is reasonably practicable
the most recent list available to it of the names and addresses of Securityholders. If the
Trustee is not the Registrar, the Company shall furnish to the Trustee, in writing at least five Business Days before each interest payment date and at such other times as the Trustee may request in
writing, a list in such form and as of such date as the Trustee may reasonably require of the names and addresses of Securityholders. 


        SECTION
2.06    Transfer and Exchange.    The Securities shall be issued in registered form and shall be transferable
only upon the surrender of a Security for registration of transfer. When a Security is presented to the Registrar or a co-registrar with a request to register a transfer, the Registrar
shall register the transfer as requested if the requirements of this Indenture and Section 8-401(1) of the Uniform Commercial Code are met. When Securities are presented to the
Registrar or a co-registrar with a request to exchange them for an equal principal amount of Securities of other denominations, the Registrar shall make the exchange as requested if the
same requirements are met. 


        SECTION
2.07    Replacement Securities.    If a mutilated Security is surrendered to the Registrar or if the Holder of
a Security claims that the Security has been lost, destroyed or wrongfully taken, the Company shall issue and the Trustee shall authenticate a replacement Security if the requirements of
Section 8-405 of the Uniform Commercial Code are met and the Holder satisfies any other reasonable requirements of the Trustee. If required by the Trustee or the Company, such
Holder shall furnish an indemnity bond sufficient in the judgment of the Company and the Trustee to protect the Company, the Trustee, the Paying Agent, the Registrar and any co-registrar
from any loss which any of them may 


24





 



suffer
if a Security is replaced. The Company and the Trustee may charge the Holder for their expenses in replacing a Security. 


        Every
replacement Security is an additional Obligation of the Company. 


        SECTION
2.08    Outstanding Securities.    Securities outstanding at any time are all Securities authenticated by the
Trustee except for those canceled by it, those delivered to it for cancellation and those described in this Section as not outstanding. A Security does not cease to be outstanding because the Company
or an Affiliate of the Company holds the Security. 


        If
a Security is replaced pursuant to Section 2.07, it ceases to be outstanding unless the Trustee and the Company receive proof satisfactory to them that the replaced Security is
held by a bona fide purchaser. 


        If
the Paying Agent segregates and holds in trust, in accordance with this Indenture, on a redemption date or maturity date money sufficient to pay all principal and interest payable on
that date with
respect to the Securities (or portions thereof) to be redeemed or maturing, as the case may be, and the Paying Agent is not prohibited from paying such money to the Securityholders on that date
pursuant to the terms of this Indenture, then on and after that date such Securities (or portions thereof) cease to be outstanding and interest on them ceases to accrue. 


        SECTION
2.09    Temporary Securities.    Until definitive Securities are ready for delivery, the Company may prepare
and the Trustee shall authenticate temporary Securities. Temporary Securities shall be substantially in the form of definitive Securities but may have variations that the Company considers appropriate
for temporary Securities. Without unreasonable delay, the Company shall prepare and the Trustee shall authenticate definitive Securities and deliver them in exchange for temporary Securities. 


        SECTION
2.10    Cancellation.    The Company at any time may deliver Securities to the Trustee for cancellation. The
Registrar and the Paying Agent shall forward to the Trustee any Securities surrendered to them for registration of transfer, exchange or payment. The Trustee and no one else shall cancel and destroy
(subject to the record retention requirements of the Exchange Act) all Securities surrendered for registration of transfer, exchange, payment or cancellation and deliver a certificate of such
destruction to the Company unless the Company directs the Trustee to deliver canceled Securities to the Company. The Company may not issue new Securities to replace Securities it has redeemed, paid or
delivered to the Trustee for cancellation. 


        SECTION
2.11    Defaulted Interest.    If the Company defaults in a payment of interest on the Securities, the Company
shall pay defaulted interest (plus interest on such defaulted interest to the extent lawful) in any lawful manner. The Company may pay the defaulted interest to the persons who are Securityholders on
a subsequent special record date. The Company shall fix or cause to be fixed any such special record date and payment date to the reasonable satisfaction of the Trustee and shall promptly mail to each
Securityholder a notice that states the special record date, the payment date and the amount of defaulted interest to be paid. 


        SECTION
2.12    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 as a convenience to Holders; provided,  however, that any such notice 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 a redemption 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. 


        SECTION
2.13    Issuance of Additional Securities.    After the Issue Date, the Company shall be entitled, subject to
its compliance with Section 4.03, to issue Additional Securities under this Indenture, 


25





 



which
Securities shall have identical terms as the Initial Securities issued on the Issue Date, other than with respect to the date of issuance and issue price and except that, to the extent
Additional Securities are issued after the Merger, such Additional Securities do not need to provide for an escrow arrangement or an early redemption based on the conditions of such escrow. All the
Securities issued under this Indenture shall be treated as a single class for all purposes of this Indenture. 


        With
respect to any Additional Securities, the Company shall set forth in a resolution of the Board of Directors and an Officers' Certificate, a copy of each which shall be delivered to
the Trustee, the following information: 



        (1)   the
aggregate principal amount of such Additional Securities to be authenticated and delivered pursuant to this Indenture and the provision of Section 4.03 that
the Company is relying on to issue such Additional Securities; 


        (2)   the
issue price, the issue date and the CUSIP number of such Additional Securities; provided,  however, that no Additional Securities may be issued at a price
that would cause such Additional Securities to have "original issue discount" within the
meaning of Section 1273 of the Code; and 


        (3)   whether
such Additional Securities shall be Initial Securities or shall be issued in the form of Exchange Securities as set forth in Exhibit A. 



 
 

Article 3
  
    Redemption


        SECTION
3.01    Notices to Trustee.    If the Company elects to redeem Securities pursuant to paragraph 5 of
the Securities or is required to redeem Securities pursuant to paragraph 6 of the Securities, it shall notify the Trustee in writing of the redemption date, the principal amount of Securities
to be redeemed and the paragraph of the Securities pursuant to which the redemption will occur. 


        If
the Company elects to redeem Securities pursuant to paragraph 5 of the Securities, it shall give each notice to the Trustee provided for in this Section at least 30 days
before the redemption date unless the Trustee consents to a shorter period. If the Company is required to redeem Securities pursuant to paragraph 6 of the Securities, it shall give the Trustee
prompt notice thereof. Each such notice shall be accompanied by an Officers' Certificate and an Opinion of Counsel from the Company to the effect that such redemption will comply with the conditions
herein. 


        SECTION
3.02    Selection of Securities to Be Redeemed.    If fewer than all the Securities are to be redeemed, the
Trustee shall select the Securities to be redeemed pro rata or by lot or by a method that complies with applicable legal and securities exchange requirements, if any, and that the Trustee in its sole
discretion shall deem to be fair and appropriate and in accordance with methods generally used at the time of selection by fiduciaries in similar circumstances. The Trustee shall make the selection
from outstanding Securities not previously called for redemption. The Trustee may select for redemption portions of the principal of Securities that have denominations larger than $1,000. Securities
and portions of them the Trustee selects shall be in principal amounts of $1,000 or a whole multiple of $1,000. Provisions of this Indenture that apply to Securities called for redemption also apply
to portions of Securities called for redemption. The Trustee shall notify the Company promptly of the Securities or portions of Securities to be redeemed. 


        SECTION
3.03    Notice of Redemption.    At least 30 days but not more than 60 days before a date for
redemption of Securities (except in the case of redemption pursuant to paragraph 6 of the Securities, in which case the notice shall be mailed within the time period specified in such
paragraph), 


26





 



the
Company shall mail a notice of redemption by first-class mail to each Holder of Securities to be redeemed at such Holder's registered address. 


        The
notice shall identify the Securities to be redeemed and shall state: 



        (1)   the
redemption date; 


        (2)   the
redemption price; 


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


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


        (5)   if
fewer than all the outstanding Securities are to be redeemed, the identification and principal amounts of the particular Securities to be redeemed; 



        (6)   that,
unless the Company defaults in making such redemption payment or the Paying Agent is prohibited from making such payment pursuant to the terms of this Indenture,
interest on Securities (or portion thereof) called for redemption ceases to accrue on and after the redemption date; 


        (7)   the
paragraph of the Securities pursuant to which the Securities called for redemption are being redeemed; and 


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




        At
the Company's request, the Trustee shall give the notice of redemption in the Company's name and at the Company's expense. In such event, the Company shall provide the Trustee with
the information required by this Section. 


        SECTION
3.04    Effect of Notice of Redemption.    Once notice of redemption is mailed, Securities called for
redemption become due and payable on the redemption date and at the redemption price stated in the notice. Upon surrender to the Paying Agent, such Securities shall be paid at the redemption price
stated in the notice, plus accrued interest to the redemption date (subject to the right of Holders of record on the relevant record date to receive interest due on the related interest payment date).
Failure to give notice or any defect in the notice to any Holder shall not affect the validity of the notice to any other Holder. 


        SECTION
3.05    Deposit of Redemption Price.    Prior to 10:00 AM New York time on the redemption date, the Company
shall deposit with the Paying Agent (or, if the Company or a Subsidiary is the Paying Agent, shall segregate and hold in trust) money sufficient to pay the redemption price of and accrued interest on
all Securities to be redeemed on that date other than Securities or portions of Securities called for redemption which have been delivered by the Company to the Trustee for cancellation. 



        SECTION
3.06    Securities Redeemed in Part.    Upon surrender of a Security that is redeemed in part, the Company
shall execute and the Trustee shall authenticate for the Holder (at the Company's expense) a new Security equal in principal amount to the unredeemed portion of the Security surrendered. 


 
 

Article 4
  
    Covenants



        SECTION
4.01    Payment of Securities.    The Company shall promptly pay the principal of and interest on the
Securities on the dates and in the manner provided in the Securities and in this 


27





 

Indenture.
Principal and interest shall be considered paid on the date due if on such date the Trustee or the Paying Agent holds in accordance with this Indenture money sufficient to pay all principal
and interest then due and the Trustee or the Paying Agent, as the case may be, is not prohibited from paying such money to the Securityholders on that date pursuant to the terms of this Indenture. 


        The
Company shall pay interest on overdue principal at the rate specified therefor in the Securities, and it shall pay interest on overdue installments of interest at the same rate to
the extent lawful. 


        SECTION
4.02    SEC Reports.    Notwithstanding that the Company may not be subject to the reporting requirements of
Section 13 or 15(d) of the Exchange Act, the Company shall file with the SEC (to the extent the SEC will accept such filings) and provide the Trustee and Securityholders with such annual
reports and such information, documents and other reports as are specified in Sections 13 and 15(d) of the Exchange Act and applicable to a U.S. corporation subject to such Sections, such information,
documents and other reports to be so filed and provided at the times specified for the filings of such information, documents and reports under such Sections;  provided, however, that so long as long as Parent is a Guarantor of the Securities and complies with the
requirements of Rule 3-10 of Regulation S-X promulgated by the SEC (or any successor provision), the reports, information and other documents required to be filed
and provided as described hereunder may, at the Company's option, be filed by and be those of Parent rather than the Company. The Company agrees that it will not take any action for the purpose of
causing the SEC not to accept any such filings. If, notwithstanding the foregoing, the SEC will not accept the Company's filings for any reason, the Company will post the reports, information and
documents referred to in this paragraph on its website within the time periods that would apply if the Company were required to file those reports with the SEC. 


        At
any time that any of the Company's Subsidiaries are Unrestricted Subsidiaries, then the quarterly and annual financial information required by the preceding paragraph will include a
reasonably detailed presentation, either on the face of the financial statements or in the footnotes thereto, and in "Management's Discussion and Analysis of Financial Condition and Results of
Operations," of the financial condition and results of operations of the Company and its Restricted Subsidiaries separate from the financial condition and results of operations of the Unrestricted
Subsidiaries of the Company. 


        In
addition, the Company shall furnish to the Holders of the Securities and to prospective investors, upon the requests of such Holders, any information required to be delivered pursuant
to Rule 144A(d)(4) under the Securities Act so long the Securities are not freely transferable under the Securities Act. The Company also shall comply with the other provisions of TIA
§ 314(a). 


        SECTION
4.03    Limitation on Indebtedness.    (a) The Company shall not, and shall not permit any Restricted
Subsidiary to, Incur, directly or indirectly, any Indebtedness; provided, however, that the Company and
the Subsidiary Guarantors shall be entitled to Incur Indebtedness (including Indebtedness Incurred under a Credit Agreement) if, on the date of such Incurrence and after giving effect thereto on a  pro forma basis, the Consolidated Coverage Ratio exceeds 2 to 1 if such Indebtedness is Incurred prior to August 1, 2006, or 2.25 to 1 if such
Indebtedness is Incurred thereafter. 


        (b)   Notwithstanding
the foregoing paragraph (a), the Company and the Restricted Subsidiaries shall be entitled to Incur any or all of the following Indebtedness: 



        (1)   Indebtedness
Incurred by the Company or any Subsidiary Guarantor pursuant to any Credit Agreement; provided,  however, that, immediately after giving effect to any such
Incurrence, the aggregate principal amount of all Indebtedness Incurred under this
clause (b)(1) and clause (b)(13) of this Section 4.03 and then outstanding does not exceed the greater of 



28





 

(A) $170.0 million
and (B) the sum of (i) $135.0 million, (ii) 65% of the book value of the inventory of the Company and its Restricted Subsidiaries and
(iii) 85% of the book value of the accounts receivable of the Company and its Restricted Subsidiaries, in the case of clauses (A) and (B)(i), less the aggregate sum of (i) all
principal payments actually made from time to time with respect to such Indebtedness pursuant to Section 4.06(a)(3)(A) and (ii) all scheduled amortization payments actually made from
time to time with respect to such Indebtedness (other than amortization payments made from any permitted Refinancings thereof); 


        (2)   Indebtedness
owed to and held by the Company or a Restricted Subsidiary; provided,  however, that (A) any subsequent issuance or transfer of any Capital Stock which
results in any such Restricted Subsidiary ceasing to be a
Restricted Subsidiary or any subsequent transfer of such Indebtedness (other than to the Company or a Restricted Subsidiary) shall be deemed, in each case, to constitute the Incurrence of such
Indebtedness by the obligor thereon, (B) if the Company is the obligor on such Indebtedness, such Indebtedness is expressly subordinated to the prior payment in full in cash of all obligations
with respect to the Securities and (C) if a Subsidiary Guarantor is the obligor on such Indebtedness, such Indebtedness is expressly subordinated to the prior payment in full in cash of all
obligations of such obligor with respect to its Subsidiary Guaranty; 


        (3)   the
Securities (other than any Additional Securities) and all Subsidiary Guarantees thereof; 



        (4)   Indebtedness
of Packaged Ice and its Subsidiaries outstanding on the Issue Date (other than Indebtedness described in clause (1), (2) or (3) of this
Section 4.03(b)); 


        (5)   Indebtedness
of a Restricted Subsidiary Incurred and outstanding on or prior to the date on which such Subsidiary became a Restricted Subsidiary or was acquired by the
Company (other than Indebtedness Incurred in connection with, or to provide all or any portion of the funds or credit support utilized to consummate, the transaction or series of related transactions
pursuant to which such Subsidiary became a Subsidiary or was acquired by the Company); provided,  however, that on the date of such acquisition and after
giving pro forma effect thereto, the Company
would have been able to Incur at least $1.00 of additional Indebtedness pursuant to Section 4.03(a); 


        (6)   Refinancing
Indebtedness in respect of Indebtedness Incurred pursuant to Section 4.03(a) or pursuant to clause (3), (4) or (5) of this
Section 4.03(b) or this clause (6); provided, however, that to the extent such Refinancing
Indebtedness directly or indirectly Refinances Indebtedness of a Subsidiary Incurred pursuant to clause (5), such Refinancing Indebtedness shall be Incurred only by such Subsidiary; 



        (7)   Hedging
Obligations entered into in the ordinary course of business to purchase any raw material or other commodity or to hedge risks or reduce costs with respect to the
Company's or a Restricted Subsidiary's interest rate, currency, or commodity exposure and not for speculative purposes; 


        (8)   (x) obligations
in respect of performance bonds, bankers' acceptances, workers' compensation claims, surety, bid or appeal bonds, completion guarantees and
payment obligations in connection with self-insurance or similar obligations provided by the Company or any Restricted Subsidiary in the ordinary course of business and
(y) obligations owed to (including in respect of letters of credit for the benefit of) any Person in connection with workers' compensation, health, disability or other employee benefits or
property, casualty or liability insurance provided by such Person to the Company or any Restricted Subsidiary pursuant to reimbursement or indemnification obligations to such Person, in each case,
incurred in the ordinary course of business; 


        (9)   Indebtedness
arising from the honoring by a bank or other financial institution of a check, draft or similar instrument drawn against insufficient funds in the ordinary
course of 



29





 




business;  provided, however, that such Indebtedness is extinguished within five Business Days of its
Incurrence; 


        (10) Indebtedness
consisting of any Guarantee by the Company or a Subsidiary Guarantor of Indebtedness Incurred pursuant to Section 4.03(a) or pursuant to
clause (1), (2), (3), (4), (7), (8), (9), (11) or (14) of this Section 4.03(b) or pursuant to clause (6) of this Section 4.03(b) to the extent the Refinancing
Indebtedness Incurred thereunder directly or indirectly Refinances Indebtedness Incurred pursuant to Section 4.03(a) or pursuant to clause (3) or (4) of this
Section 4.03(b); 


        (11) Indebtedness
(including Capital Lease Obligations) Incurred by the Company or any of its Restricted Subsidiaries to finance the purchase, lease or improvement of
property (real or personal) or equipment (whether through the direct purchase of assets or the Capital Stock of any Person owning such assets) within 180 days of such purchase, lease or
improvement, and any Refinancing Indebtedness Incurred to Refinance such Indebtedness, in an aggregate principal amount which, when added together with the amount of Indebtedness Incurred pursuant to
this clause (11) and then outstanding, does not exceed $10.0 million; 



        (12) Indebtedness
of Foreign Subsidiaries in an aggregate principal amount which, when taken together with all other Indebtedness of Foreign Subsidiaries Incurred pursuant
to this clause (12) and then outstanding, does not exceed $2.0 million; 


        (13) Non-Recourse
Securitization Entity Indebtedness Incurred by a Securitization Entity in connection with a Qualified Securitization Transaction;  provided, however, that
at the time of such Incurrence, the Company would have been able to Incur the
same amount of Indebtedness pursuant to clause (1) of this Section 4.03(b); and 



        (14) Indebtedness
of the Company or of any of the Restricted Subsidiaries in an aggregate principal amount which, when taken together with all other Indebtedness of the
Company and the Restricted Subsidiaries outstanding on the date of such Incurrence (other than Indebtedness permitted by clauses (1) through (13) of this Section 4.03(b) or
Section 4.03(a)) does not exceed $20.0 million. 




        (c)   Notwithstanding
the foregoing, neither the Company nor any Subsidiary Guarantor shall Incur any Indebtedness pursuant to Section 4.03(b) if the proceeds thereof
are used, directly or indirectly, to Refinance any Subordinated Obligations of the Company or any Subsidiary Guarantor unless such Indebtedness shall be subordinated to the Securities or the
applicable Subsidiary Guarantee to at least the same extent as such Subordinated Obligations. 


        (d)   For
purposes of determining compliance with this Section 4.03, (1) any Indebtedness Incurred on the Merger Date under the Credit Agreement will be deemed
to have been Incurred under clause (1) of paragraph (b) above, (2) in the event that an item of Indebtedness (or any portion thereof) meets the criteria of more than one of the
types of Indebtedness described above, the Company, in its sole discretion, shall classify such item of Indebtedness (or any portion thereof) at the time of Incurrence and shall only be required to
include the amount and type of such Indebtedness in one of the above clauses, (3) the Company shall be entitled to divide and classify an item of Indebtedness in more than one of the types of
Indebtedness described above and (4) following the date of its Incurrence, any Indebtedness originally classified as Incurred pursuant to one of the clauses in Section 4.03(b) (other
than pursuant to clause (1) of Section 4.03(b)) may later be reclassified by the Company such that it will be deemed as having been Incurred pursuant to Section 4.03(a) or another
clause in Section 4.03(b), as applicable, to the extent that such reclassified Indebtedness could be Incurred pursuant to such new paragraph or clause at the time of such reclassification. 



        (e)   For
purposes of determining compliance with any U.S. dollar denominated restriction on the Incurrence of Indebtedness where the Indebtedness Incurred is denominated in a
different currency, 


30





 



the
amount of such Indebtedness shall be the U.S. Dollar Equivalent determined on the date of the Incurrence of such Indebtedness; provided,  however, that if
any such Indebtedness denominated in a different currency is subject to a Currency Agreement with respect to U.S. dollars covering all
principal, premium, if any, and interest payable on such Indebtedness, the amount of such Indebtedness expressed in U.S. dollars shall be as provided in such Currency Agreement. The principal amount
of any Refinancing Indebtedness being Refinanced shall be the U.S. Dollar Equivalent of the Indebtedness Refinanced, except to the extent that (1) such U.S. Dollar Equivalent was determined
based on a Currency Agreement, in which case the Refinancing Indebtedness shall be determined in accordance with the preceding sentence, and (2) the principal amount of the Refinancing
Indebtedness exceeds the principal amount of the Indebtedness being Refinanced, in which case the U.S. Dollar Equivalent of such excess shall be determined on the date such Refinancing Indebtedness is
Incurred. 


        SECTION
4.04    Limitation on Restricted Payments.    (a) The Company shall not, and shall not permit any
Restricted Subsidiary, directly or indirectly, to make a Restricted Payment if at the time the Company or such Restricted Subsidiary makes such Restricted Payment: 



        (1)   a
Default shall have occurred and be continuing (or would result therefrom); 


        (2)   the
Company is not entitled to Incur an additional $1.00 of Indebtedness under Section 4.03(a); or 



        (3)   the
aggregate amount of such Restricted Payment and all other Restricted Payments since the Issue Date would exceed the sum of (without duplication): 



        (A)  50%
of the Consolidated Net Income accrued during the period (treated as one accounting period) from July 1, 2003 to the end of the most recent fiscal quarter
prior to the date of such Restricted Payment for which internal financial statements are then available (or, in case such Consolidated Net Income shall be a deficit, minus 100% of such deficit);  plus



        (B)  100%
of the aggregate Net Cash Proceeds received by the Company from the issuance or sale of its Capital Stock (other than Disqualified Stock) subsequent to the Merger
Date (other than an issuance or sale to a Subsidiary of the Company and other than an issuance or sale to an employee stock ownership plan or to a trust established by the Company or any of its
Subsidiaries for the benefit of their employees) and 100% of any cash capital contribution received by the Company from its shareholders subsequent to the Merger Date;  plus


        (C)  the
amount by which Indebtedness of the Company is reduced on the Company's balance sheet upon the conversion or exchange subsequent to the Merger Date of any
Indebtedness of the Company convertible or exchangeable for Capital Stock (other than Disqualified Stock) of the Company (less the amount of any cash, or the fair value of any other property,
distributed by the Company upon such conversion or exchange); provided, however, that the foregoing
amount shall not exceed the Net Cash Proceeds received by the Company or any Restricted Subsidiary from the sale of such Indebtedness (excluding Net Cash Proceeds from sales to a Subsidiary of the
Company or to an employee stock ownership plan or to a trust established by the Company or any of its Subsidiaries for the benefit of their employees);  plus



        (D)  an
amount equal to the sum of (i) the net reduction in the Investments (other than Permitted Investments) made by the Company or any Restricted Subsidiary in any
Person resulting from repurchases, repayments or redemptions of such Investments by such Person, proceeds realized on the sale of such Investment and proceeds representing the return of capital
(excluding dividends and distributions), in each case received by the Company or any Restricted Subsidiary, and (ii) to the extent such Person is an Unrestricted Subsidiary, the portion
(proportionate to the Company's equity interest in such Subsidiary) of the Fair Market 




31





 





Value
of the net assets of such Unrestricted Subsidiary at the time such Unrestricted Subsidiary is designated a Restricted Subsidiary; provided,  however, that
the foregoing sum shall not exceed, in the case of any such Person or Unrestricted Subsidiary, the amount of Investments (excluding
Permitted Investments) previously made (and treated as a Restricted Payment) by the Company or any Restricted Subsidiary in such Person or Unrestricted Subsidiary. 





        (b)   The
provisions of Section 4.04(a) shall not prohibit: 



        (1)   any
Restricted Payment made out of the Net Cash Proceeds of the substantially concurrent sale of, or made by exchange for, Capital Stock of the Company (other than
Disqualified Stock and other than Capital Stock issued or sold to a Subsidiary of the Company or an employee stock ownership plan or to a trust established by the Company or any of its Subsidiaries
for the benefit of their employees) subsequent to the Merger Date or a substantially concurrent cash capital contribution received by the Company from its shareholders subsequent to the Merger Date;  provided, however, that (A) such Restricted Payment shall be excluded in the calculation of the
amount of Restricted Payments and (B) the Net Cash Proceeds from such sale or such cash capital contribution (to the extent so used for such Restricted Payment) shall be excluded from the
calculation of amounts under Section 4.04(a)(3)(B); 


        (2)   any
purchase, repurchase, redemption, defeasance or other acquisition or retirement for value of Subordinated Obligations of the Company or any Subsidiary Guarantor made
by exchange for, or out of the proceeds of the substantially concurrent sale of, Subordinated Indebtedness of such Person which is permitted to be Incurred pursuant to Section 4.03;  provided,
however, that such purchase, repurchase, redemption, defeasance or other acquisition or
retirement for value shall be excluded in the calculation of the amount of Restricted Payments; 


        (3)   dividends
paid within 60 days after the date of declaration thereof if at such date of declaration such dividend would have complied with this
Section 4.04; provided, however, that at the time of payment of such dividend, no other Default
shall have occurred and be continuing (or result therefrom); provided further, however, that such
dividend shall be included in the calculation of the amount of Restricted Payments; 



        (4)   so
long as no Default has occurred and is continuing, the purchase, redemption or other acquisition or retirement for value of shares of Capital Stock of the Company or
any of its Subsidiaries from employees, former employees, directors or former directors of the Company or any of its Subsidiaries (or permitted transferees of such employees, former employees,
directors or former directors), pursuant to the terms of the agreements (including employment agreements) or plans (or amendments thereto) approved by the Board of Directors of the Company under which
such individuals purchase or sell or are granted the option to purchase or sell, shares of such Capital Stock; provided,  however, that (i) the
aggregate amount of such purchases, redemptions and other acquisitions and retirements (excluding amounts representing
cancelation of Indebtedness) shall not exceed $2.0 million in any calendar year and (ii) any Restricted Payments permitted (but not made) pursuant to this Section 4.04(b)(4) in
any one calendar year may be carried forward to any succeeding calendar year but that the aggregate amount of all Restricted Payments made pursuant to this Section 4.04(b)(4) shall not exceed
$5.0 million; provided further, however, that such repurchases and other acquisitions shall be
excluded in the calculation of the amount of Restricted Payments; 


        (5)   declarations
and payments of dividends on Disqualified Stock issued pursuant to Section 4.03; provided,  however, that such dividends shall be excluded in the
calculation of the amount of Restricted Payments; 



32





 




        (6)   repurchases
of Capital Stock deemed to occur upon exercise of stock options if such Capital Stock represents a portion of the exercise price of such options;  provided, however, that such Restricted Payments shall be excluded in the calculation of the amount of
Restricted Payments; 


        (7)   payments
of intercompany subordinated Indebtedness, the Incurrence of which was permitted under Section 4.03(b)(2); provided
further, however, that such payments shall be excluded in the calculation of the amount of Restricted payments; 


        (8)   payments
(including with respect to the repurchase of Packaged Ice's existing preferred stock) required pursuant to the terms of the Merger Agreement to consummate the
Transactions or as otherwise described in the Offering Circular in connection with the Transactions; provided,  however, that such payments shall be
excluded in the calculation of the amount of Restricted Payments; 


        (9)   dividends
and other payments to Parent to be used by Parent solely to pay its franchise taxes and other fees required to maintain its corporate existence and to pay for
general corporate and overhead expenses (including salaries and other compensation of the employees) incurred by Parent in the ordinary course of its business;  provided, however, that such dividends and other payments shall not exceed $500,000 in any calendar
year; provided further, however, that such dividends and other payments shall be excluded in the
calculation of the amount of Restricted Payments; 


        (10) any
payment by the Company to Parent pursuant to a Tax Sharing Agreement; provided,  however, that the amount of any such payment shall not exceed the amount of
taxes that the Company would have been liable for on a stand alone basis on
a consolidated tax return with its Subsidiaries; provided further, however, that such payment shall be
excluded in the calculation of the amount of Restricted Payments; 


        (11) in
the event of a Change of Control, and if no Default shall have occurred and be continuing, the payment, purchase, redemption, defeasance or other acquisition or
retirement of Subordinated Obligations of the Company or any Subsidiary Guarantor, in each case, at a purchase price not greater than 101% of the principal amount of such Subordinated Obligations,
plus any accrued and unpaid interest thereon; provided, however, that prior to such payment, purchase,
redemption, defeasance or other acquisition or retirement, the Company (or a third party to the extent permitted by this Indenture) has made a Change of Control Offer with respect to the Securities as
a result of such
Change of Control and has repurchased all Securities validly tendered and not withdrawn in connection with such Change of Control Offer; provided
further, however, that such repurchase and other acquisitions shall be included in the calculation of the amount of Restricted
Payments; 


        (12) in
the event of an Asset Disposition that requires the Company to offer to repurchase Securities pursuant to Section 4.06 and if no Default shall have occurred
and be continuing, the payment, purchase, redemption, defeasance or other acquisition or retirement of Subordinated Obligations of the Company or any Subsidiary Guarantor, in each case, at a purchase
price not greater than 100% of the principal amount (or, if such Subordinated Obligations were issued with original issue discount, 100% of the accreted value) of such Subordinated Obligations, plus
any accrued and unpaid interest thereon; provided, however, that (A) prior to such payment,
purchase, redemption, defeasance or other acquisition or retirement, the Company has made an offer with respect to the Securities pursuant to the provisions of Section 4.06 and has repurchased
all Securities validly tendered and not withdrawn in connection with such offer and (B) the aggregate amount of all such payments, purchases, redemptions, defeasances or other acquisitions or
retirements of all such Subordinated Obligations may not exceed the amount of Net Available Cash remaining after the Company has complied with the terms of Section 4.06(a)(3);  provided  



33





 




 further, however, that such repurchases and other acquisitions shall be included in the calculation of the amount of Restricted
Payments; 


        (13) cash
payments in lieu of the issuance of fractional shares in connection with the exercise of warrants, options or other securities convertible into or exchangeable for
Capital Stock of the Company; provided, however, that any such cash payment shall not be for the purpose
of evading the limitation of this Section 4.04 (as determined in good faith by the Board of Directors of the Company); provided further,  however, that
such payments shall be excluded in the calculation of the amount of Restricted Payments; or 


        (14) Restricted
Payments in an amount which, when taken together with all Restricted Payments made pursuant to this clause (14), does not exceed $10.0 million;  provided, however, that (A) at the time of each such Restricted Payment, no Default shall have
occurred and be continuing (or result therefrom) and (B) such Restricted Payments shall be excluded in the calculation of the amount of Restricted Payments. 




        SECTION
4.05    Limitation on Restrictions on Distributions from Restricted Subsidiaries.    The Company shall not,
and shall not permit any Restricted Subsidiary to, create or otherwise cause or permit to exist or become effective any consensual encumbrance or restriction on the ability of any Restricted
Subsidiary to (a) pay dividends or make any other distributions on its Capital Stock to the Company or a Restricted Subsidiary or pay any Indebtedness owed to the Company, (b) make any
loans or advances to the Company or (c) transfer any of its property or assets to the Company, except: 



        (1)   with
respect to clauses (a), (b) and (c), 



        (A)  any
encumbrance or restriction pursuant to an agreement in effect at or entered into on the Issue Date, or, in the case of the Credit Agreement, as in effect on the
Merger Date; 


        (B)  any
encumbrance or restriction contained in the terms of any Credit Agreement if (x) either (i) the encumbrance or restriction applies only in the event of
and during the continuance of a payment default or a default with respect to a financial covenant contained in such Indebtedness or agreement or (ii) the Company determines at the time any such
Indebtedness is Incurred (and at the time of any modification of the terms of any such encumbrance or restriction) that any such encumbrance or restriction will not materially affect the Company's
ability to make principal or interest payments on the Securities and (y) the encumbrance or restriction is not materially more disadvantageous to the holders of the Securities than is customary
in comparable financings or agreements (as determined by the Company in good faith); 



        (C)  any
encumbrance or restriction with respect to a Restricted Subsidiary pursuant to an agreement relating to any Indebtedness Incurred by such Restricted Subsidiary on or
prior to the date on which such Restricted Subsidiary became a Restricted Subsidiary or was acquired by the Company (other than Indebtedness Incurred as consideration in, or to provide all or any
portion of the funds or credit support utilized to consummate, the transaction or series of related transactions pursuant to which such Restricted Subsidiary became a Restricted Subsidiary or was
acquired by the Company) and outstanding on such date; 


        (D)  any
encumbrance or restriction pursuant to an agreement effecting a Refinancing (in whole or in part) of Indebtedness Incurred pursuant to an agreement referred to in
Section 4.05(1)(A), (B) or (C) or this clause (D) or contained in any amendment to an agreement referred to in Section 4.05(1)(A), (B) or (C) or this
clause (D); provided, however, that the encumbrances and restrictions with respect to such
Restricted Subsidiary contained in any such refinancing agreement or amendment, taken as a whole, are no less favorable to the Securityholders than encumbrances and restrictions with respect to such
Restricted Subsidiary contained in such predecessor agreements; 




34





 





        (E)  any
encumbrance or restriction with respect to a Restricted Subsidiary imposed pursuant to an agreement entered into for the sale or disposition of all or substantially
all the Capital Stock or any assets of such Restricted Subsidiary pending the closing of such sale or disposition; 


        (F)  any
encumbrance or restriction existing under applicable law, rule, regulation or order; 


        (G)  restrictions
on cash or other deposits or net worth requirements imposed by customers under contracts entered into in the ordinary course of business; 



        (H)  protective
Liens filed in connection with Sale/Leaseback Transactions permitted under this Indenture; 


        (I)   customary
restrictions on the assignment or transfer of any property that is subject to a license or similar contract; and 


        (J)   any
encumbrance or restriction existing under Non-Recourse Securitization Entity Indebtedness or other contractual requirements of a Securitization Entity in
connection with a Qualified Securitization Transaction; provided, however, that such restrictions apply
only to such Securitization Entity; 




        (2)   with
respect to clause (c) only, 



        (A)  any
encumbrance or restriction consisting of customary nonassignment provisions in leases governing leasehold interests to the extent such provisions restrict the
transfer or assignment of the lease or the property leased thereunder; 


        (B)  any
encumbrance or restriction contained in security agreements or other documentation governing secured Indebtedness of a Restricted Subsidiary to the extent such
encumbrance or restriction restricts the transfer of the property securing such Indebtedness; and 



        (C)  customary
provisions restricting the disposition or distribution of assets or property to each holder of Capital Stock of a joint venture contained in any constitutional
documents of such joint venture or any joint venture agreement, shareholders agreement or similar agreement which restriction is limited to the assets or property of such joint venture. 





        SECTION
4.06    Limitation on Sales of Assets and Subsidiary Stock.    (a) The Company shall not, and shall
not permit any Restricted Subsidiary to, directly or indirectly, consummate any Asset Disposition unless (1) the Company or such Restricted Subsidiary receives consideration at the time of such
Asset Disposition at least equal to the Fair Market Value (including as to the value of all non-cash consideration) of the shares and assets subject to such Asset Disposition;
(2) at least 75% of the consideration thereof received by the Company or such Restricted Subsidiary is in the form of cash or cash equivalents;  provided, however, that this Section 4.06(a)(2) shall not apply to any disposition of assets in
exchange for assets of a similar nature and to be used by the Company or a Restricted Subsidiary in a Related Business, or a combination of such assets and cash or cash equivalents, in each case
having a Fair Market Value comparable to the Fair Market Value of the assets disposed of by the Company or a Restricted Subsidiary; and; and (3) an amount equal to 100% of the Net Available
Cash from such Asset Disposition is applied by the Company (or such Restricted Subsidiary, as the case may be) (A) first, to the extent the
Company elects (or is required by the terms of any Indebtedness), to prepay, repay, redeem, defease or purchase Senior Indebtedness of the Company or Indebtedness (other than any Preferred Stock) of a
Restricted Subsidiary (in each case other than Indebtedness owed to the Company or an Affiliate of the Company) within one year from the later of the date of such Asset Disposition or the receipt of
such Net Available Cash; (B) second, to the extent of the balance of such Net Available Cash after application in accordance with
clause (A), to the extent the Company 


35





 

elects,
to acquire Additional Assets within one year from the later of the date of such Asset Disposition or the receipt of such Net Available Cash or, if the Company has entered into a binding
agreement within such year to acquire such Additional Assets, within an additional six months after such year; and (C) third, to the extent of
the balance of such Net Available Cash after application in accordance with clauses (A) and (B), to make an Offer to the holders of the Securities (and to holders of other Senior Subordinated
Indebtedness of the Company designated by the Company) to purchase Securities (and such other Senior Subordinated Indebtedness of the Company) pursuant to and subject to the conditions of
Section 4.06(b); provided, however, that in connection with any prepayment, repayment, redemption
or purchase or other acquisition or retirement of Indebtedness pursuant to clause (A) or (C) above, the Company or such Restricted Subsidiary shall permanently retire such Indebtedness
and shall cause the related loan commitment (if any) to be permanently reduced in an amount equal to the principal amount so prepaid, repaid, redeemed, purchased, acquired or retired. Notwithstanding
the foregoing provisions of this Section 4.06, the Company and the Restricted Subsidiaries shall not be required to apply any Net Available Cash in accordance with this Section 4.06(a)
except to the extent that the aggregate Net Available Cash from all Asset Dispositions which is not applied in accordance with this Section 4.06(a) exceeds $10.0 million. Pending
application of Net Available Cash pursuant to this Section 4.06(a), such Net Available Cash shall be invested in Temporary Cash Investments or applied to temporarily reduce revolving credit
indebtedness. 


        For
the purposes of this Section 4.06(a), the following are deemed to be cash or cash equivalents: (i) the assumption of Indebtedness of the Company (other than obligations
in respect of Disqualified Stock of the Company) or any Restricted Subsidiary (other than obligations in respect of Disqualified Stock or Preferred Stock of a Subsidiary Guarantor) and the release of
the Company or such Restricted Subsidiary from all liability on such Indebtedness in connection with such Asset Disposition and (ii) securities received by the Company or any Restricted
Subsidiary from the transferee that are converted within 90 days by the Company or such Restricted Subsidiary into cash, to the extent of cash received in that conversion. 


        (b)   In
the event of an Asset Disposition that requires the purchase of Securities (and other Senior Subordinated Indebtedness of the Company) pursuant to
Section 4.06(a)(3)(C), the Company shall purchase Securities tendered pursuant to an offer by the Company for the Securities (and such other Senior Subordinated Indebtedness) (the "Offer") at a
purchase price of 100% of their principal amount (or, in the event such other Senior Subordinated Indebtedness of the Company was issued with significant original issue discount, 100% of the accreted
value thereof), without premium, plus accrued but unpaid interest (or, in respect of such other Senior Subordinated Indebtedness of the Company, such lesser price, if any, as may be provided for by
the terms of such Senior Subordinated Indebtedness of the Company) in accordance with the procedures (including prorating in the event of oversubscription) set forth in Section 4.06(c). If the
aggregate purchase price of Securities (and any other Senior Subordinated Indebtedness of the Company) tendered pursuant to the Offer exceeds the Net Available Cash allotted to their purchase, the
Company shall select the Securities and other Senior Subordinated Indebtedness of the Company to be purchased on a pro rata basis but in round denominations, which in the case of the Securities will
be denominations of $1,000 principal amount or multiples thereof. The Company shall not be required to make an Offer to purchase Securities (and other Senior Subordinated Indebtedness of the Company)
pursuant to this Section 4.06 if the Net Available Cash available therefor is less than $5.0 million (which lesser amount shall be carried forward for purposes of determining whether
such an Offer is required with respect to the Net Available Cash from any subsequent Asset Disposition). Upon completion of such an Offer, Net Available Cash shall be deemed to be reduced by the
aggregate amount of such Offer. 


        (c)   (1)
Promptly, and in any event within 10 days after the Company becomes obligated to make an Offer, the Company shall deliver to the Trustee and send, by
first-class mail to each Holder, a written notice stating that the Holder may elect to have his Securities purchased by the Company either 


36





 



in
whole or in part (subject to prorating as described in Section 4.06(b) in the event the Offer is oversubscribed) in integral multiples of $1,000 of principal amount, at the applicable
purchase price. The notice shall specify a purchase date not less than 30 days nor more than 60 days after the date of such notice (the "Purchase Date") and shall contain such
information concerning the business of the Company which the Company in good faith believes will enable such Holders to make an informed decision (which at a minimum will include (A) the most
recently filed Annual Report on Form 10-K (including audited consolidated financial statements) of the Company, the most recent subsequently filed Quarterly Report on
Form 10-Q and any Current Report on Form 8-K of the Company filed subsequent to such Quarterly Report, other than Current Reports describing Asset Dispositions
otherwise described in the offering materials (or corresponding successor reports), (B) a description of material developments in the Company's business subsequent to the date of the latest of
such Reports, and (C) if material, appropriate pro forma financial information) and all instructions and materials necessary to tender Securities
pursuant to the Offer, together with the information contained in clause (3). 



        (2)   Not
later than the date upon which written notice of an Offer is delivered to the Trustee as provided below, the Company shall deliver to the Trustee an Officers'
Certificate as to (A) the amount of the Offer (the "Offer Amount"), including information as to any other Senior Subordinated Indebtedness included in the Offer, (B) the allocation of
the Net Available Cash from the Asset Dispositions pursuant to which such Offer is being made and (C) the compliance of such allocation with the provisions of
Section 4.06(a) and (b). On such date, the Company shall also irrevocably 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) in Temporary Cash Investments, maturing on the last day prior to the Purchase Date or on the Purchase Date if funds are immediately available by open of business, an amount equal to the
Offer Amount to be held for payment in accordance with the provisions of this Section. If the Offer includes other Senior Subordinated Indebtedness, the deposit described in the preceding sentence may
be made with any other paying agent pursuant to arrangements satisfactory to the Trustee. Upon the expiration of the period for which the Offer remains open (the "Offer Period"), the Company shall
deliver to the Trustee for cancellation the Securities or portions thereof which have been properly tendered to and are to be accepted by the Company. The Trustee shall, on the Purchase Date, mail or
deliver payment (or cause the delivery of payment) to each tendering Holder in the amount of the purchase price. In the event that the aggregate purchase price of the Securities delivered by the
Company to the Trustee is less than the Offer Amount applicable to the Securities, the Trustee shall deliver the excess to the Company immediately after the expiration of the Offer Period for
application in accordance with this Section 4.06. 


        (3)   Holders
electing to have a Security purchased shall be required to surrender the Security, with an appropriate form duly completed, to the Company at the address
specified in the notice at least three Business Days prior to the Purchase Date. Holders shall be entitled to withdraw their election if the Trustee or the Company receives not later than one Business
Day prior to the Purchase Date, a telex, facsimile transmission or letter setting forth the name of the Holder, the principal amount of the Security which was delivered for purchase by the Holder and
a statement that such Holder is withdrawing his election to have such Security purchased. Holders whose Securities are purchased only in part shall be issued new Securities equal in principal amount
to the unpurchased portion of the Securities surrendered. 


        (4)   At
the time the Company delivers Securities to the Trustee which are to be accepted for purchase, the Company shall also deliver an Officers' Certificate stating that
such Securities are to be accepted by the Company pursuant to and in accordance with the terms of this Section. A Security shall be deemed to have been accepted for purchase at the time the Trustee,
directly or through an agent, mails or delivers payment therefor to the surrendering Holder. 



37





 





        (d)   The
Company shall comply, to the extent applicable, with the requirements of Section 14(e) of the Exchange Act and any other securities laws or regulations in
connection with the repurchase of Securities pursuant to this Section. To the extent that the provisions of any securities laws or regulations conflict with provisions of this Section, the Company
shall comply with the applicable securities laws and regulations and shall not be deemed to have breached its obligations under this Section by virtue of its compliance with such securities laws or
regulations. 


        SECTION
4.07    Limitation on Affiliate Transactions.    (a) The Company shall not, and shall not permit any
Restricted Subsidiary to, enter into any transaction (including the purchase, sale, lease or exchange of
any property, employee compensation arrangements or the rendering of any service) with, or for the benefit of, any Affiliate of the Company (an "Affiliate Transaction") unless (1) the terms of
the Affiliate Transaction are no less favorable to the Company or such Restricted Subsidiary than those that could be obtained at the time of the Affiliate Transaction in arm's-length dealings with a
Person who is not an Affiliate; (2) if such Affiliate Transaction involves an amount in excess of $2.0 million, the terms of the Affiliate Transaction are set forth in writing and a
majority of the directors of the Company disinterested with respect to such Affiliate Transaction shall have determined in good faith that the criteria set forth in clause (1) are satisfied and
shall have approved the relevant Affiliate Transaction as evidenced by a resolution of the Board of Directors; and (3) if such Affiliate Transaction involves an amount in excess of
$10.0 million, the Board of Directors of the Company shall also have received a written opinion from an Independent Qualified Party to the effect that such Affiliate Transaction is fair, from a
financial standpoint, to the Company and its Restricted Subsidiaries or is not less favorable to the Company and its Restricted Subsidiaries than could reasonably be expected to be obtained at the
time in an arm's-length transaction with a Person who was not an Affiliate. 


        (b)   The
provisions of Section 4.07(a) shall not prohibit: (1) any Investment (other than a Permitted Investment) or other Restricted Payment, in each case
permitted to be made pursuant to Section 4.04; (2) any issuance of securities, or other payments, awards or grants in cash, securities or otherwise pursuant to, or the funding of,
employment arrangements, stock options and stock ownership plans approved by the Board of Directors of the Company, (3) loans or advances to officers, employees and directors in the ordinary
course of business of the Company or its Restricted Subsidiaries, but in any event not to exceed $3.0 million in the aggregate outstanding at any one time; (4) reasonable fees and
compensation paid to, and indemnity provided for the benefit of, officers, directors, employees or consultants of the Company or any Restricted Subsidiary as determined in good faith by the Company's
Board of Directors; (5) any transaction with a Restricted Subsidiary or joint venture or similar entity which would constitute an Affiliate Transaction solely because the Company or a
Restricted Subsidiary owns an equity interest in or otherwise controls such Restricted Subsidiary, joint venture or similar entity; (6) the issuance or sale of any Capital Stock (other than
Disqualified Stock) of the Company; (7) any agreement as in effect on the Merger Date and described in the Offering Circular (including the Monitoring Agreement and any Tax Sharing Agreement)
or any renewals or extensions of any such agreement (so long as such renewals or extensions are not less favorable to the Company or the Restricted Subsidiaries) and the transactions evidenced
thereby; provided, however, that this clause (7) shall apply to the Monitoring Agreement only to
the extent the Monitoring Agreement provides for an annual monitoring fee of $500,000 (or such higher amount if the $500,000 fee is increased pursuant to the Monitoring Agreement in connection with
acquisitions by an amount equal to 1% of the trailing twelve-month pro forma EBITDA of acquired businesses), and not to the extent the Monitoring Agreement provides for the payment of transaction
advisory or other similar fees; (8) any merger of the Company with an Affiliate of the Company solely for the purpose and with the sole effect of reincorporating the Company in another
jurisdiction; (9) transactions with customers, clients, suppliers, joint venture partners or purchasers or sellers of goods or services, in each case, in the ordinary course of business,
including pursuant to joint venture agreements, and otherwise in compliance with the terms of this Indenture which are fair to the Company and the Restricted Subsidiaries, in the reasonable
determination of the Board of Directors of the Company or the senior management thereof, or are on 


38





 



terms
at least as favorable as might reasonably have been obtained at such time in arm's-length dealings with a Person who is not an Affiliate; (10) any transactions involving the Company or
any of its Restricted Subsidiaries, on the one hand, and Bear, Stearns & Co. Inc. or CIBC World Markets Corp. or any of their respective Affiliates, on the other hand, in connection with
the Transactions and any amendment, modification, supplement, extension, refinancing, replacement and other transactions related thereto, or any management, financial advisory, financing, underwriting
or placement services or any other investment banking, capital markets, banking or similar services, which transactions, in the reasonable determination of a majority of the directors of the Company
disinterested with respect to such transactions, are on commercially reasonable terms; and (11) transactions effected as part of a Qualified Securitization Transaction. 



        SECTION
4.08    Limitation on Line of Business.    The Company shall not, and shall not permit any Restricted
Subsidiary, to engage in any business other than a Related Business. 


        SECTION
4.09    Limitation on the Sale or Issuance of Capital Stock of Restricted Subsidiaries.    The Company: 



        (1)   shall
not, and shall not permit any Restricted Subsidiary (other than a Securitization Entity) to, sell, lease, transfer or otherwise dispose of (other than the granting
of any Lien permitted under the terms of this Indenture) any Capital Stock of any Restricted Subsidiary to any Person (other than the Company or a Wholly Owned Subsidiary or, if necessary, shares of
its Capital Stock constituting directors' or other legally required qualifying shares), and 


        (2)   shall
not permit any Restricted Subsidiary (other than a Securitization Entity) to issue any of its Capital Stock (other than, if necessary, shares of its Capital Stock
constituting directors' or other legally required qualifying shares) to any Person (other than to the Company or a Wholly Owned Subsidiary), unless 



        (A)  immediately
after giving effect to such issuance, sale or other disposition, neither the Company nor any of its Subsidiaries own any Capital Stock of such Restricted
Subsidiary; or 


        (B)  immediately
after giving effect to such issuance, sale or other disposition, such Restricted Subsidiary would no longer constitute a Restricted Subsidiary and any
Investment in such Person remaining after giving effect thereto is treated as a new Investment by the Company and such Investment would be permitted to be made under Section 4.04 if made on the
date of such issuance, sale or other disposition. 





        SECTION
4.10    Change of Control.    (a) Upon the occurrence of a Change of Control, each Holder shall have
the right to require that the Company repurchase such Holder's Securities at a purchase price in cash equal to 101% of the principal amount thereof on the date of purchase plus accrued and unpaid
interest, if any, to the date of purchase (subject to the right of holders of record on the relevant record date to receive interest on the relevant interest payment date), in accordance with the
terms contemplated in Section 4.10(b). In the event that at the time of such Change of Control the terms of the Senior Indebtedness of the Company restrict or prohibit the repurchase of
Securities pursuant to this Section, then prior to the mailing of the notice to Holders provided for in Section 4.10(b) below but in any event within 30 days following any Change of
Control, the Company may undertake to (1) repay in full all such Senior Indebtedness or (ii) obtain the requisite consent under the agreements governing such Senior Indebtedness to
permit the repurchase of the Securities as provided for in Section 4.10(b). 


        (b)   Within
30 days following any Change of Control, the Company shall mail a notice to each Holder with a copy to the Trustee (the "Change of Control Offer") stating: 



        (1)   that
a Change of Control has occurred and that such Holder has the right to require the Company to purchase such Holder's Securities at a purchase price in cash equal to
101% of the 



39





 

principal
amount thereof on the date of purchase, plus accrued and unpaid interest, if any, to the date of purchase (subject to the right of Holders of record on the relevant record date to receive
interest on the relevant interest payment date); 


        (2)   the
circumstances and relevant facts regarding such Change of Control; 


        (3)   the
purchase date (which shall be no earlier than 30 days nor later than 60 days from the date such notice is mailed); and 


        (4)   the
instructions, as determined by the Company, consistent with this Section, that a Holder must follow in order to have its Securities purchased. 




        (c)   Holders
electing to have a Security purchased will be required to surrender the Security, with an appropriate form duly completed, to the Company at the address
specified in the notice at least three Business Days prior to the 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 purchase date, a telegram, telex, facsimile transmission or letter setting forth the name of the Holder, the principal amount of the Security which was delivered for purchase by the
Holder and a statement that such Holder is withdrawing his election to have such Security purchased. 


        (d)   On
the purchase date, all Securities purchased by the Company under this Section shall be delivered by the Company to the Trustee for cancellation, and the Company shall
pay the purchase price plus accrued and unpaid interest, if any, to the Holders entitled thereto. 



        (e)   Notwithstanding
the foregoing provisions of this Section, the Company shall not be required to make a Change of Control Offer following a Change of Control if a third
party makes the Change of Control Offer in the manner, at the times and otherwise in compliance with the requirements set forth in this Section applicable to a Change of Control Offer made by the
Company and purchases all Securities validly tendered and not withdrawn under such Change of Control Offer. Additionally, the Company will not be required to purchase the Securities as described under
this Section 4.10 to the extent that it has mailed a notice to exercise its right to redeem Securities pursuant to Article 3 of this Indenture and paragraph 5 of the Securities at
any time prior to the time by which consummation of a Change of Control Offer is required. 



        (f)    The
Company shall comply, to the extent applicable, with the requirements of Section 14(e) of the Exchange Act and any other securities laws or regulations in
connection with the repurchase of Securities pursuant to this Section. To the extent that the provisions of any securities laws or regulations conflict with provisions of this Section, the Company
shall comply with the applicable securities laws and regulations and shall not be deemed to have breached its obligations under this Section by virtue of its compliance with such securities laws or
regulations. 


        SECTION
4.11    Limitation on Layering; Limitation on Liens.    Notwithstanding Sections 4.03(a) and (b), neither the
Company nor any Subsidiary Guarantor will Incur (1) any Indebtedness if such Indebtedness is subordinate or junior in right of payment to any Senior Indebtedness of the Company or such
Subsidiary Guarantor, as applicable, unless such Indebtedness is Senior Subordinated Indebtedness or is expressly subordinated in right of payment to Senior Subordinated Indebtedness of the Company or
such Subsidiary Guarantor, as applicable, or (2) any Secured Indebtedness that is not Senior Indebtedness of such Person unless contemporaneously therewith such Person makes effective provision
to secure the Securities or the relevant Subsidiary Guarantee, as applicable, equally and ratably with such Secured Indebtedness for so long as such Secured Indebtedness is secured by a Lien. 



        SECTION
4.12    Limitation on Other Activities.    Notwithstanding anything in this Indenture to the contrary, prior
to the Merger Date, Merger Sub will not engage in any business operations or other activities, including Incurring Indebtedness, making Restricted Payments, consummating Asset Dispositions and
entering into Affiliate Transactions, other than those contemplated in connection with 


40





 



the
Transactions, the Escrow Agreement and the issuance of the Securities and described in the Offering Circular. 



        SECTION
4.13    Future Guarantors.    On the Merger Date, each Restricted Subsidiary that is a guarantor under the
Credit Agreement will execute and deliver to the Trustee a Guaranty Agreement pursuant to which such Restricted Subsidiary will Guarantee the Securities on an unsecured senior subordinated basis. 


        After
the Merger Date, the Company will cause each Restricted Subsidiary that Guarantees any Indebtedness of the Company or any other Restricted Subsidiary (except in the case of a
Foreign Subsidiary that Guarantees only Indebtedness Incurred by another Foreign Subsidiary) to, in each case, at the same time, execute and deliver to the Trustee a Guaranty Agreement pursuant to
which such Restricted Subsidiary will Guarantee payment of the Securities on the same terms and conditions as those set forth herein. 


        SECTION
4.14    Compliance Certificate.    The Company shall deliver to the Trustee within 120 days after the
end of each fiscal year of the Company an Officers' Certificate stating that in the course of the
performance by the signers of their duties as Officers of the Company they would normally have knowledge of any Default and whether or not the signers know of any Default that occurred during such
period. If they do, the certificate shall describe the Default, its status and what action the Company is taking or proposes to take with respect thereto. The Company also shall comply with TIA
§ 314(a)(4). 


        SECTION
4.15    Further Instruments and Acts.    Upon request of the Trustee, the Company will execute and deliver
such further instruments and do such further acts as may be reasonably necessary or proper to carry out more effectively the purpose of this Indenture. 


 
 

Article 5
  
    Successor Company


        SECTION
5.01.    When Company May Merge or Transfer Assets.    (a) The Company shall not consolidate with or
merge with or into, or convey, transfer or lease, in one transaction or a series of transactions, directly or indirectly, all or substantially all its assets (determined on a consolidated basis for
the Company and its Restricted Subsidiaries) to, any Person, unless: 



        (1)   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, any
State thereof or the District of Columbia and the Successor Company (if not the Company) shall expressly assume, by an indenture supplemental thereto, executed and delivered to the Trustee, in form
satisfactory to the Trustee, all the obligations of the Company under the Securities and this Indenture; 


        (2)   immediately
after giving pro forma effect to such transaction (and treating any Indebtedness which 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 shall have occurred and be continuing; 


        (3)   immediately
after giving pro forma effect to such transaction, the Successor Company would be able to Incur an additional $1.00 of Indebtedness pursuant to
Section 4.03(a); and 


        (4)   the
Company shall have delivered to the Trustee an Officers' Certificate and an Opinion of Counsel, each stating that such consolidation, merger or transfer and such
supplemental indenture (if any) comply with this Indenture; 




provided, however, that clause (3) will not be applicable to (A) a Restricted Subsidiary
consolidating with, merging into or transferring all or part of its properties and assets to the Company or (B) the 


41





 

Company
merging with an Affiliate of the Company solely for the purpose and with the sole effect of reincorporating the Company in another jurisdiction. 



        For
purposes of this Section 5.01, the sale, lease, conveyance, assignment, transfer or other disposition of all or substantially all of the properties and assets of one or more
Subsidiaries of the Company, which properties and assets, if held by the Company instead of such Subsidiaries, would constitute all or substantially all of the properties and assets of the Company on
a consolidated basis, shall be deemed to be the transfer of all or substantially all of the properties and assets of the Company. 


        Upon
consummation of the Transactions, Packaged Ice shall execute and deliver to the Trustee a supplemental indenture of the type referred to in Section 5.01(a)(1), whereupon
Packaged Ice shall be the successor Company and shall succeed to, and be substituted for, and may exercise every right and power of, the predecessor Company under this Indenture. Notwithstanding
anything in Section 5.01 to the contrary, the merger of Merger Sub with and into Packaged Ice on the Merger Date as described in the Escrow Agreement shall be permitted under this Indenture. 


        The
Successor Company shall be the successor to the Company and shall succeed to, and be substituted for, and may exercise every right and power of, the Company under this Indenture, and
the predecessor Company, except in the case of a lease, shall be released from the obligation to pay the principal of and interest on the Securities. 



        (b)   The
Company shall not permit any Subsidiary Guarantor to consolidate with or merge with or into, or convey, transfer or lease, in one transaction or a series of
transactions, all or substantially all of its assets to any Person (other than the Company or another Subsidiary Guarantor) unless: 



        (1)   except
in the case of a Subsidiary Guarantor (x) that has been disposed of in its entirety to another Person (other than to the Company or an Affiliate of the
Company), whether through a merger, consolidation or sale of Capital Stock or assets or (y) that, as a result of the disposition of all or a portion of its Capital Stock, ceases to be a
Subsidiary, in both cases, if in connection therewith the Company provides an Officers' Certificate to the Trustee to the effect that the Company will comply with its obligations under
Section 4.06 in respect of such disposition, the resulting, surviving or transferee Person (if not such Subsidiary) shall be a Person organized and existing under the laws of the jurisdiction
under which such Subsidiary was organized or under the laws of the United States of America, or any State thereof or the District of Columbia, and, if not a Subsidiary Guarantor, such Person shall
expressly assume, by a Guaranty Agreement, in a form satisfactory to the Trustee, all the obligations of such Subsidiary, if any, under its Subsidiary Guaranty; 


        (2)   immediately
after giving effect to such transaction or transactions on a pro forma basis (and treating any Indebtedness which becomes an obligation of the resulting,
surviving or transferee Person as a result of such transaction as having been issued by such Person at the time of such transaction), no Default shall have occurred and be continuing; and 


        (3)   the
Company delivers to the Trustee an Officers' Certificate and an Opinion of Counsel, each stating that such consolidation, merger or transfer and such Guaranty
Agreement, if any, complies with this Indenture. 




        (c)   Parent
shall not consolidate with or merge with or into, or convey, transfer or lease, in one transaction or a series of transactions, directly or indirectly all or
substantially all of its assets to any Person unless: 



        (1)   the
resulting, surviving or transferee Person (if not Parent) shall be a Person organized and existing under the laws of the jurisdiction under which Parent was
organized or under the laws of the United States of America, or any State thereof or the District of Columbia, and such Person 



42





 

(if
not Parent) shall expressly assume all the obligations of Parent, if any, under the Parent Guaranty and this Indenture; 



        (2)   immediately
after giving effect to such transaction or transactions on a pro forma basis (and treating any Indebtedness
which becomes an obligation of the resulting, surviving or transferee Person as a result of such transaction as having been issued by such Person at the time of such transaction), no Default shall
have occurred and be continuing; and 


        (3)   the
Company delivers to the Trustee an Officers' Certificate and an Opinion of Counsel, each stating that such consolidation, merger or transfer complies with this
Indenture. 



 
 

Article 6
  
    Defaults and Remedies


        SECTION
6.01.    Events of Default.    An "Event of Default" occurs if: 



        (1)   the
Company defaults in any payment of interest on any Security when the same becomes due and payable, whether or not
such payment shall be prohibited by Article 10, and such default continues for a period of 30 days; 


        (2)   the
Company (A) defaults in the payment of the principal of any Security when the same becomes due and payable at its Stated Maturity, upon optional redemption,
upon required repurchase, upon declaration of acceleration or otherwise, whether or not such payment shall be prohibited by Article 10 or (B) fails to redeem or purchase Securities when
required pursuant to this Indenture or the Securities, whether or not such redemption or purchase shall be prohibited by Article 10; 



        (3)   the
Company or Parent fails to comply with Section 5.01 or with any of its obligations in the Escrow Agreement; 


        (4)   the
Company fails to comply with Section 4.02, 4.03, 4.04, 4.05, 4.06, 4.07, 4.08, 4.09, 4.10, 4.11, 4.12 or 4.13 (other than a failure to purchase Securities
when required under Section 4.06 or 4.10) and such failure continues for 30 days after the notice specified below; 


        (5)   the
Company or any Subsidiary Guarantor, as the case may be, fails to comply with any of its agreements in the Securities
or this Indenture (other than those referred to in clause (1), (2), (3) or (4) above) and such failure continues for 60 days after the notice specified below; 


        (6)   Indebtedness
of Parent, the Company, any Subsidiary Guarantor or any
Significant Subsidiary is not paid within any applicable grace period after final maturity or is accelerated by the holders thereof because of a default and the total amount of such Indebtedness
unpaid or accelerated exceeds $10.0 million; 



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



        (A)  commences
a voluntary case; 


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


        (C)  consents
to the appointment of a Custodian of it or for any substantial part of its property; or 



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




or
takes any comparable action under any foreign laws relating to insolvency; 



43





 

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



        (A)  is
for relief against Parent, the Company or any Significant Subsidiary in an involuntary case; 


        (B)  appoints
a Custodian of Parent, the Company or any Significant Subsidiary or for any substantial part of its property; or 


        (C)  orders
the winding up or liquidation of Parent, the Company or any Significant Subsidiary; 




or
any similar relief is granted under any foreign laws and the order or decree remains unstayed and in effect for 60 days; 



        (9)   any
judgment or decree for the payment of money in excess of $10.0 million (excluding the amount of any insurance proceeds or indemnification claims available to
the obligor from insurance carriers and indemnitors who in the reasonable judgment of the Board of Directors of the Company are creditworthy and who have acknowledged their liability with respect
thereto) is entered against Parent, the Company, a Subsidiary Guarantor or any Significant Subsidiary, remains outstanding for a period of 60
consecutive days following such judgment and is not paid, discharged, waived or stayed; or 


        (10) the
Parent Guaranty or any Subsidiary Guaranty of a Significant Subsidiary ceases to be in full force and effect (other than in accordance with the terms of the Parent
Guaranty or such Subsidiary Guaranty) and such default continues for five Business Days or Parent or any Subsidiary Guarantor denies or disaffirms its obligations under the Parent Guaranty or its
Subsidiary Guaranty, as the case may be. 




        The
foregoing will constitute Events of Default whatever the reason for any such Event of Default and whether it is voluntary or involuntary or is effected by operation of law or
pursuant to any judgment, decree or order of any court or any order, rule or regulation of any administrative or governmental body. 


        The
term "Bankruptcy Law" means Title 11, United States Code, or any similar Federal or state law for the relief of debtors. The term
"Custodian" means any receiver, trustee, assignee, liquidator, custodian or similar official under any Bankruptcy Law. 


        A
Default under clauses (4) and (5) is not an Event of Default until the Trustee or the holders of at least 25% in principal amount of the outstanding Securities notify the
Company of the Default and the Company does not cure such Default within the time specified after receipt of such notice. Such notice must specify the Default, demand that it be remedied and state
that such notice is a "Notice of Default". 


        The
Company shall deliver to the Trustee, within 30 days after the occurrence thereof, written notice in the form of an Officers' Certificate of any Event of Default under
clause (6) and any event which with the giving of notice or the lapse of time would become an Event of Default under clause (4) or (5), its status and what action the Company is taking
or proposes to take with respect thereto. 


        SECTION
6.02.    Acceleration.    If an Event of Default (other than an Event of Default specified in
Section 6.01(7) or (8) with respect to the Company) occurs and is continuing, the Trustee by notice to the Company, or the Holders of at least 25% in principal amount of the Securities
by notice to the Company and the Trustee, may declare the principal of and accrued but unpaid interest on all the Securities to be due and payable;  provided, however, that so long as any Bank Indebtedness remains outstanding, no such acceleration shall
be effective until the earlier of (1) five Business Days after the 


44





 



giving
of written notice to the Company and the Administrative Agent (or similar agent if there is no Administration Agent) under the Credit Agreement and (2) the day on which any Bank
Indebtedness is accelerated. Upon such a declaration, such principal and interest shall be due and payable immediately. If an Event of Default specified in Section 6.01(7) or (8) with
respect to the Company occurs, the principal of and interest on all the Securities shall ipso facto become and be immediately due and payable without
any declaration or other act on the part of the Trustee or any Securityholders. The Holders of a majority in principal amount of the Securities by notice to the Trustee may rescind an acceleration and
its consequences if the rescission would not conflict with any judgment or decree and if all existing Events of Default have been cured or waived except nonpayment of principal or interest that has
become due solely because of acceleration. No such rescission shall affect any subsequent Default or impair any right consequent thereto. 



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


        The
Trustee may maintain a proceeding even if it does not possess any of the Securities or does not produce any of them in the proceeding. A delay or omission by the Trustee or any
Securityholder in exercising any right or remedy accruing upon an Event of Default shall not impair the right or remedy or constitute a waiver of or acquiescence in the Event of Default. No remedy is
exclusive of any other remedy. All available remedies are cumulative. 



        SECTION
6.04.    Waiver of Past Defaults.    The Holders of a majority in principal amount of the Securities by notice
to the Trustee may waive an existing Default and its consequences except (a) a Default in the payment of the principal of or interest on a Security, (b) a Default arising from the
failure to redeem or purchase any Security when required pursuant to this Indenture or (c) a Default in respect of a provision that under Section 9.02 cannot be amended without the
consent of each Securityholder affected. When a Default is waived, it is deemed cured, but no such waiver shall extend to any subsequent or other Default or impair any consequent right. 



        SECTION
6.05.    Control by Majority.    The Holders of a majority in principal amount of the Securities may direct
the time, method and place of conducting any proceeding for any remedy available to the Trustee or of exercising any trust or power conferred on the Trustee. However, the Trustee may refuse to follow
any direction that conflicts with law or this Indenture or, subject to Section 7.01, that the Trustee determines is unduly prejudicial to the rights of other Securityholders or would involve
the Trustee in personal liability; provided, however, that the Trustee may take any other action deemed
proper by the Trustee that is not inconsistent with such direction. Prior to taking any action hereunder, the Trustee shall be entitled to indemnification satisfactory to it in its sole discretion
against all losses and expenses caused by taking or not taking such action. 


        SECTION
6.06.    Limitation on Suits.    Except to enforce the right to receive payment of principal, premium (if any)
or interest when due, no Securityholder may pursue any remedy with respect to this Indenture or the Securities unless: 



        (1)   the
Holder gives to the Trustee written notice stating that an Event of Default is continuing; 


        (2)   the
Holders of at least 25% in principal amount of the Securities make a written request to the Trustee to pursue the remedy; 


        (3)   such
Holder or Holders offer to the Trustee reasonable security or indemnity against any loss, liability or expense; 


        (4)   the
Trustee does not comply with the request within 60 days after receipt of the request and the offer of security or indemnity; and 



45





 




        (5)   the
Holders of a majority in principal amount of the Securities do not give the Trustee a direction inconsistent with the request during such 60-day period. 




        A
Securityholder may not use this Indenture to prejudice the rights of another Securityholder or to obtain a preference or priority over another Securityholder. 



        SECTION
6.07.    Rights of Holders to Receive Payment.    Notwithstanding any other provision of this Indenture, the
right of any Holder to receive payment of principal of and interest on the Securities held by such Holder, on or after the respective due dates expressed in the Securities, or to bring suit for the
enforcement of any such payment on or after such respective dates, shall not be impaired or affected without the consent of such Holder. 


        SECTION
6.08.    Collection Suit by Trustee.    If an Event of Default specified in Section 6.01(1) or
(2) occurs and is continuing, the Trustee may recover judgment in its own name and as trustee of an express trust against the Company for the whole amount then due and owing (together with
interest on any unpaid interest to the extent lawful) and the amounts provided for in Section 7.07. 


        SECTION
6.09.    Trustee May File Proofs of Claim.    The Trustee may file such proofs of claim and other papers or
documents as may be necessary or advisable in order to have the claims of the Trustee and the Securityholders allowed in any judicial proceedings relative to the Company, its creditors or its property
and, unless prohibited by law or applicable regulations, may vote on behalf of the Holders in any election of a trustee in bankruptcy or other Person performing similar functions, and any Custodian in
any such judicial proceeding is hereby authorized by each Holder to make payments to the Trustee and, in the event that the Trustee shall consent to the making of such payments directly to the
Holders, to pay to the Trustee any amount due it for the reasonable compensation, expenses, disbursements and advances of the Trustee, its agents and its counsel, and any other amounts due the Trustee
under Section 7.07. 



        Priorities. If the Trustee collects any money or property pursuant to this Article 6, it shall pay out the money or property in the
following order: 


        FIRST:
to the Trustee for amounts due under Section 7.07; 


        SECOND:
to holders of Senior Indebtedness of the Company and, if such money or property has been collected from a Guarantor, to holders of Senior Indebtedness of such Guarantor, in each
case to the extent required by Article 10 and 12; 


        THIRD:
to Securityholders for amounts due and unpaid on the Securities for principal and interest, ratably, without preference or priority of any kind, according to the amounts due and
payable on the Securities for principal and interest, respectively; and 


        FOURTH:
to the Company. 




        The
Trustee may fix a record date and payment date for any payment to Securityholders pursuant to this Section. At least 15 days before such record date, the Company shall mail to
each Securityholder and the Trustee a notice that states the record date, the payment date and amount to be paid. 


        SECTION
6.10.    Undertaking for Costs.    In any suit for the enforcement of any right or remedy under this Indenture
or in any suit against the Trustee for any action taken or omitted by it as Trustee, a court in its discretion may require the filing by any party litigant in the suit of an undertaking to pay the
costs of the suit, and the court in its discretion may assess reasonable costs, including reasonable attorneys' fees, against any party litigant in the suit, having due regard to the merits and good
faith of the claims or defenses made by the party litigant. This Section does not apply to a suit by the Trustee, a suit by a Holder pursuant to Section 6.07 or a suit by Holders of more than
10% in principal amount of the Securities. 


46





 



        SECTION
6.11.    Waiver of Stay or Extension Laws.    The Company (to the extent it may lawfully do so) shall not at
any time insist upon, or plead, or in any manner whatsoever claim or take the benefit or advantage of, any stay 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 (to the extent that it may lawfully do so) hereby expressly waives all benefit or advantage of any such law, and shall not
hinder, delay or impede the execution of any power herein granted to the Trustee, but shall suffer and permit the execution of every such power as though no such law had been enacted. 


47






  



 
 

Article 7
  
    Trustee


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


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



        (1)   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 


        (2)   in
the absence of bad faith on its part, the Trustee may conclusively rely, as to the truth of the statements and the correctness of the opinions expressed therein, upon
certificates or opinions furnished to the Trustee and conforming to the requirements of this Indenture. However, the Trustee shall examine the certificates and opinions to determine whether or not
they conform to the requirements of this Indenture. 




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



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


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


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




        (d)   Every
provision of this Indenture that in any way relates to the Trustee is subject to paragraphs (a), (b) and (c) of this Section. 


        (e)   The
Trustee shall not be liable for interest on any money received by it except as the Trustee may agree in writing with the Company. 


        (f)    Money
held in trust by the Trustee need not be segregated from other funds except to the extent required by law. 


        (g)   No
provision of this Indenture shall require the Trustee to expend or risk its own funds or otherwise incur 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 to believe that repayment of such funds or adequate indemnity against such risk or liability is not
reasonably assured to it. 


        (h)   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 and to the provisions of the TIA. 


        SECTION
7.02    Rights of Trustee.    (a) The Trustee may rely on any document believed by it to be genuine
and to have been signed or presented by the proper person. The Trustee need not investigate any fact or matter stated in the document. 



        (b)   Before
the Trustee acts or refrains from acting, it may require an Officers' Certificate or an Opinion of Counsel. The Trustee shall not be liable for any action it
takes or omits to take in good faith in reliance on the Officers' Certificate or Opinion of Counsel. 



48





 

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


        (d)   The
Trustee shall not be liable for any action it takes or omits to take in good faith which it believes to be authorized or within its rights or powers;  provided, however, that the Trustee's conduct does not constitute wilful misconduct or negligence. 


        (e)   The
Trustee may consult with counsel, and the advice or opinion of counsel with respect to legal matters relating to this Indenture and the Securities shall be full and
complete authorization and protection from liability in respect to any action taken, omitted or suffered by it hereunder in good faith and in accordance with the advice or opinion of such counsel. 


        (f)    Except
with respect to Sections 4.01, 4.02 and 4.14, the Trustee shall have no duty to inquire as to the performance of the Issuer's and the Guarantors' covenants in
Article Four hereof. In addition, the Trustee shall not be deemed to have knowledge of any Default or Event of Default except (i) any Event of Default occurring pursuant to Sections 6.01(1) and
6.01(2) or (ii) any Default or Event of Default of which the Trustee shall have received written notice in the manner set forth in this Indenture or an officer of the Trustee shall have
obtained actual knowledge. Delivery of reports, information and documents to the Trustee under Section 4.02 is for informational purposes only and the Trustee's receipt of the foregoing shall
not constitute constructive notice of any information contained therein or determinable from information contained therein, including the Issuer's and the Guarantors' compliance with any of their
covenants thereunder (as to which the Trustee is entitled to rely exclusively on an Officers' Certificate). 




        SECTION
7.03    Individual Rights of Trustee.    The Trustee in its individual or any other capacity may become the
owner or pledgee of Securities and may otherwise deal with the Company or its Affiliates with the same rights it would have if it were not Trustee. Any Paying Agent, Registrar,
co-registrar or co-paying agent may do the same with like rights. However, the Trustee must comply with Sections 7.10 and 7.11. 


        SECTION
7.04    Trustee's Disclaimer.    The Trustee shall not be responsible for and makes no representation as to
the validity or adequacy of this Indenture or the Securities, it shall not be accountable for the Company's use of the proceeds from the Securities, and it shall not be responsible for any statement
of the Company in this Indenture or in any document issued in connection with the sale of the Securities or in the Securities other than the Trustee's certificate of authentication. 


        SECTION
7.05    Notice of Defaults.    If a Default occurs and is continuing and if it is known to the Trustee, the
Trustee shall mail to each Securityholder notice of the Default within 90 days after it occurs. Except in the case of a Default in payment of principal of or interest on any Security (including
payments pursuant to the mandatory redemption provisions of such Security, if any), the Trustee may withhold the notice if and so long as a committee of its Trust Officers in good faith determines
that withholding the notice is not opposed to the interests of Securityholders. 



        SECTION
7.06    Reports by Trustee to Holders.    As promptly as practicable after each May 15 beginning with
the May 15 following the date of this Indenture, and in any event prior to July 15 in each year, the Trustee shall mail to each Securityholder a brief report dated as of May 15
that complies with TIA § 313(a). The Trustee also shall comply with TIA § 313(b). 


        A
copy of each report at the time of its mailing to Securityholders shall be filed with the SEC and each stock exchange (if any) on which the Securities are listed. The Company agrees to
notify promptly the Trustee whenever the Securities become listed on any stock exchange and of any delisting thereof. 



        SECTION
7.07    Compensation and Indemnity.    The Company shall pay to the Trustee from time to time reasonable
compensation for its services. The Trustee's compensation shall not be limited by 


49





 



any
law on compensation of a trustee of an express trust. The Company shall reimburse the Trustee upon request for all reasonable out-of-pocket expenses incurred or made by it,
including costs of collection, in addition to the compensation for its services. Such expenses shall include the reasonable compensation and expenses, disbursements and advances of the Trustee's
agents, counsel, accountants and experts. The Company shall indemnify the Trustee against any and all loss, liability or expense (including attorneys' fees) incurred by it in connection with the
administration of this trust and the performance of its duties hereunder. The Trustee shall notify the Company promptly of any claim for which it may seek indemnity. Failure by the Trustee to so
notify the Company shall not relieve the Company of its obligations hereunder. The Company shall defend the claim and the Trustee may have separate counsel and the Company shall pay the fees and
expenses of such counsel. The Company need not reimburse any expense or indemnify against any loss, liability or expense incurred by the Trustee through the Trustee's own wilful misconduct, negligence
or bad faith. 


        To
secure the Company's payment obligations in this Section, the Trustee shall have a lien prior to the Securities on all money or property held or collected by the Trustee other than
money or property held in trust to pay principal of and interest on particular Securities. 


        The
Company's payment obligations pursuant to this Section shall survive the discharge of this Indenture. When the Trustee incurs expenses after the occurrence of a Default specified in
Section 6.01(7) or (8) with respect to the Company, the expenses are intended to constitute expenses of administration under the Bankruptcy Law. 



        SECTION
7.08    Replacement of Trustee.    The Trustee may resign at any time by so notifying the Company. The Holders
of a majority in principal amount of the Securities may remove the Trustee by so notifying the Trustee and may appoint a successor Trustee. The Company shall remove the Trustee if: 



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


        (2)   the
Trustee is adjudged bankrupt or insolvent; 


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


        (4)   the
Trustee otherwise becomes incapable of acting. 




        If
the Trustee resigns, is removed by the Company or by the Holders of a majority in principal amount of the Securities and such Holders do not reasonably promptly appoint a successor
Trustee, or if a vacancy exists in the office of Trustee for any reason (the Trustee in such event being referred to herein as the retiring Trustee), the Company shall promptly appoint a successor
Trustee. 


        A
successor Trustee shall deliver a written acceptance of its appointment to the retiring Trustee and to the Company. Thereupon the resignation or removal of the retiring Trustee shall
become effective, and the successor Trustee shall have all the rights, powers and duties of the Trustee under this Indenture. The successor Trustee shall mail a notice of its succession to
Securityholders. The retiring Trustee shall promptly transfer all property held by it as Trustee to the successor Trustee, subject to the lien provided for in Section 7.07. 


        If
a successor Trustee does not take office within 60 days after the retiring Trustee resigns or is removed, the retiring Trustee or the Holders of 10% in principal amount of the
Securities may petition any court of competent jurisdiction for the appointment of a successor Trustee. 


        If
the Trustee fails to comply with Section 7.10, any Securityholder may petition any court of competent jurisdiction for the removal of the Trustee and the appointment of a
successor Trustee. 


        Notwithstanding
the replacement of the Trustee pursuant to this Section, the Company's obligations under Section 7.07 shall continue for the benefit of the retiring Trustee. 


50





 



        SECTION
7.09    Successor Trustee by Merger.    If the Trustee consolidates with, merges or converts into, or
transfers all or substantially all its corporate trust business or assets to, another corporation or banking association, the resulting, surviving or transferee corporation without any further act
shall be the successor Trustee. 


        In
case at the time such successor or successors by merger, conversion or consolidation to the Trustee shall succeed to the trusts created by this Indenture any of the Securities shall
have been authenticated but not delivered, any such successor to the Trustee may adopt the certificate of authentication of any predecessor trustee, and deliver such Securities so authenticated; and
in case at that time any of the Securities shall not have been authenticated, any successor to the Trustee may authenticate such Securities either in the name of any predecessor hereunder or in the
name of the successor to the Trustee; and in all such cases such certificates shall have the full force which it is anywhere in the Securities or in this Indenture provided that the certificate of the
Trustee shall have. 


        SECTION
7.10    Eligibility; Disqualification.    The Trustee shall at all times satisfy the requirements of TIA
§ 310(a). The Trustee shall have a combined capital and surplus of at least $50,000,000 as set forth in its most recent published annual report of condition. The Trustee shall comply with
TIA § 310(b); provided, however, that there shall be excluded from the operation of TIA
§ 310(b)(1) any indenture or indentures under which other securities or certificates of interest or participation in other securities of the Company are outstanding if the requirements for
such exclusion set forth in TIA § 310(b)(1) are met. 


        SECTION
7.11    Preferential Collection of Claims Against Company.    The Trustee shall comply with TIA
§ 311(a), excluding any creditor relationship listed in TIA § 311(b). A Trustee who has resigned or been removed shall be subject to TIA § 311(a) to
the extent indicated. 


 
 

Article 8
  
    Discharge of Indenture; Defeasance


        SECTION
8.01    Discharge of Liability on Securities; Defeasance.    (a) When (1) the Company delivers
to the Trustee all outstanding Securities (other than Securities replaced pursuant to Section 2.07) for cancellation or (2) all outstanding Securities have become due and payable,
whether at maturity or on a redemption date as a result of the mailing of a notice of redemption pursuant to Article 3 hereof, or (3) all outstanding Securities will become due and
payable within one year or are to be called for redemption within one year under arrangements reasonably satisfactory to the Trustee and, in the case of clauses (2) and (3), the Company
irrevocably deposits with the Trustee funds sufficient to pay at maturity or upon redemption all outstanding Securities, including interest thereon to maturity or such redemption date (other than
Securities replaced pursuant to Section 2.07), and if in either case the Company pays all other sums payable hereunder by the Company, then this Indenture shall, subject to
Section 8.01(c), cease to be of further effect. The Trustee shall acknowledge satisfaction and discharge of this Indenture on demand of the Company accompanied by an Officers' Certificate and
an Opinion of Counsel and at the cost and expense of the Company. 


        (b)   Subject
to Sections 8.01(c) and 8.02, the Company at any time may terminate (1) all its obligations under the Securities and this Indenture ("legal defeasance
option") or (2) its obligations under Sections 4.02, 4.03, 4.04, 4.05, 4.06, 4.07, 4.08, 4.09, 4.10, 4.11, 4.12 and 4.13 and the operation of Sections 6.01(4), 6.01(6), 6.01(7),
6.01(8) and 6.01(9) (but, in the case of Sections 6.01(7) and (8), with respect only to Significant Subsidiaries) and the limitations contained in Section 5.01(a)(3) ("covenant defeasance
option"). The Company may exercise its legal defeasance option notwithstanding its prior exercise of its covenant defeasance option. 


        If
the Company exercises its legal defeasance option, payment of the Securities may not be accelerated because of an Event of Default with respect thereto. If the Company exercises its
covenant 


51





 



defeasance
option, payment of the Securities may not be accelerated because of an Event of Default specified in Sections 6.01(4), 6.01(6), 6.01(7), 6.01(8) and 6.01(9) (but, in the case of
Sections 6.01(7) and (8), with respect only to Significant Subsidiaries) or because of the failure of the Company to comply with Section 5.01(a)(3). If the Company exercises its legal
defeasance option or its covenant defeasance option, Parent and each Subsidiary Guarantor, if any, shall be released from all its obligations with respect to its Subsidiary Guaranty. 


        Upon
satisfaction of the conditions set forth herein and upon request of the Company, the Trustee shall acknowledge in writing the discharge of those obligations that the Company
terminates. 


        (c)   Notwithstanding
clauses (a) and (b) above, the Company's obligations in Sections 2.03, 2.04, 2.05, 2.06, 2.07, 2.08, 7.07 and 7.08 and in this
Article 8 shall survive until the Securities have been paid in full. Thereafter, the Company's obligations in Sections 7.07, 8.04 and 8.05 shall survive. 


        SECTION
8.02    Conditions to Defeasance.    The Company may exercise its legal defeasance option or its covenant
defeasance option only if: 



        (1)   the
Company irrevocably deposits in trust with the Trustee money or U.S. Government Obligations for the payment of principal of and interest on the Securities to
maturity or redemption, as the case may be; 


        (2)   the
Company delivers to the Trustee a certificate from a nationally recognized firm of independent accountants expressing their opinion that the payments of principal
and interest when due and without reinvestment on the deposited U.S. Government Obligations plus any deposited money without investment will provide cash at such times and in such amounts as will be
sufficient to pay principal and interest when due on all the Securities to maturity or redemption, as the case may be; 



        (3)   123 days
pass after the deposit is made and during the 123-day period no Default specified in Sections 6.01(7) or (8) with respect to the
Company occurs which is continuing at the end of the period; 


        (4)   the
deposit does not constitute a default under any other agreement binding on the Company and is not prohibited by Article 10; 


        (5)   the
Company delivers to the Trustee an Opinion of Counsel to the effect that the trust resulting from the deposit does not constitute, or is qualified as, a regulated
investment company under the Investment Company Act of 1940; 


        (6)   in
the case of the legal defeasance option, the Company shall have delivered to the Trustee an Opinion of Counsel stating 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 Securityholders will not recognize income, gain or loss for Federal income tax purposes as a result of such
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 defeasance had not occurred; 



        (7)   in
the case of the covenant defeasance option, the Company shall have delivered to the Trustee an Opinion of Counsel to the effect that the Securityholders will not
recognize income, gain or loss for Federal income tax purposes as a result of such covenant defeasance and will be subject to Federal income tax on the same amounts, in the same manner and at the same
times as would have been the case if such covenant defeasance had not occurred; and 



52





 




        (8)   the
Company delivers to the Trustee an Officers' Certificate and an Opinion of Counsel, each stating that all conditions precedent to the defeasance and discharge of the
Securities as contemplated by this Article 8 have been complied with. 




        Before
or after a deposit, the Company may make arrangements satisfactory to the Trustee for the redemption of Securities at a future date in accordance with Article 3. 


        SECTION
8.03    Application of Trust Money.    The Trustee shall hold in trust money or U.S. Government Obligations
deposited with it pursuant to this Article 8. It shall apply the deposited money and the money from U.S. Government Obligations through the Paying Agent and in accordance with this Indenture to
the payment of principal of and interest on the Securities. Money and securities so held in trust are not subject to Article 10. 


        SECTION
8.04    Repayment to Company.    The Trustee and the Paying Agent shall promptly turn over to the Company upon
request any excess money or securities held by them at any time. 


        Subject
to any applicable abandoned property law, the Trustee and the Paying Agent shall pay to the Company upon request any money held by them for the payment of principal or interest
that remains unclaimed for two years, and, thereafter, Securityholders entitled to the money must look to the Company for payment as general creditors. 


        SECTION
8.05    Indemnity for Government Obligations.    The Company shall pay and shall indemnify the Trustee against
any tax, fee or other charge imposed on or assessed against deposited U.S. Government Obligations or the principal and interest received on such U.S. Government Obligations. 



        SECTION
8.06    Reinstatement.    If the Trustee or Paying Agent is unable to apply any money or U.S. Government
Obligations in accordance with this Article 8 by reason of any legal proceeding or by reason of any order or judgment of any court or governmental authority enjoining, restraining or otherwise
prohibiting such application, the Company's and each Guarantor's obligations under this Indenture, each Guaranty and the Securities shall be revived and reinstated as though no deposit had occurred
pursuant to this Article 8 until such time as the Trustee or Paying Agent is permitted to apply all such money or U.S. Government Obligations in accordance with this Article 8;  provided,
however, that, if the Company has made any payment of interest on or principal of any
Securities because of the reinstatement of its obligations, the Company shall be subrogated to the rights of the Holders of such Securities to receive such payment from the money or U.S. Government
Obligations held by the Trustee or Paying Agent. 


 
 

Article 9
  
    Amendments


        SECTION
9.01    Without Consent of Holders.    The Company, Parent,
the Subsidiary Guarantors and the Trustee may amend this Indenture or the Securities without notice to or consent of any Securityholder: 



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


        (2)   to
provide for the assumption by a successor corporation of the obligations of the Company, Parent, or any Subsidiary Guarantor under this Indenture; 


        (3)   to
comply with Article 5; 


        (4)   to
provide for uncertificated Securities in addition to or in place of certificated Securities; provided,  however, that the uncertificated Securities are
issued in registered form for purposes of Section 163(f) of the Code or in a manner such that the
uncertificated Securities are described in Section 163(f)(2)(B) of the Code; 



53





 




        (5)   to
add Guarantees with respect to the Securities, including any Subsidiary Guaranties, or to secure the Securities; 


        (6)   to
add to the covenants of the Company, Parent or a Subsidiary Guarantor for the benefit of the Holders or to surrender any right or power herein conferred upon the
Company, Parent or a Subsidiary Guarantor; 


        (7)   to
comply with any requirements of the SEC in connection with qualifying, or maintaining the qualification of, this Indenture under the TIA; 


        (8)   to
make any change that does not adversely affect the rights of any Securityholder; or 


        (9)   to
make any amendment to the provisions of this Indenture relating to the form, authentication, transfer and legending of the Securities;  provided, however,
that (a) compliance with this Indenture as so amended would not result in the
Securities being transferred in violation of the Securities Act or any
other applicable securities law and (b) such amendment does not materially affect the rights of Holders to transfer the Securities. 




        An
amendment under this Section may not make any change that adversely affects the rights under Article 10 or 12 of any holder of Senior Indebtedness of the Company, Parent or a
Subsidiary Guarantor then outstanding unless the holders of such Senior Indebtedness (or their Representative) consent to such change. 


        After
an amendment under this Section becomes effective, the Company shall mail to Securityholders a notice briefly describing such amendment. The failure to give such notice to all
Securityholders, or any defect therein, shall not impair or affect the validity of an amendment under this Section. 


        SECTION
9.02    With Consent of Holders.    The Company, Parent, the
Subsidiary Guarantors and the Trustee may amend this Indenture or the Securities without notice to any Securityholder but with the written consent of the Holders of at least a majority in principal
amount of the Securities then outstanding (including consents obtained in connection with a tender offer or exchange for the Securities). However, without the consent of each Securityholder affected
thereby, an amendment or waiver may not: 



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


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


        (3)   reduce
the principal of or change the Stated Maturity of any Security; 


        (4)   change
the provisions applicable to the redemption of any Security contained in Article 3 hereto or paragraph 5 of the Securities; 


        (5)   make
any Security payable in money other than that stated in the Security; 


        (6)   make
any changes in the ranking or priority of any Security that would adversely affect the Securityholders; 


        (7)   make
any change in Section 6.04 or 6.07 or the second sentence of this Section; 



        (8)   make
any change in or release (other than in accordance with this Indenture) the Parent Guaranty or any Subsidiary Guaranty that would adversely affect the
Securityholders. 



54





 





        Without
the consent of the holders of 90% in principal amount of the Securities then outstanding (including consents obtained in connection with a tender offer or exchange for the
Securities), an amendment or waiver may not: 



        (1)   change
the provisions applicable to the redemption of any Security as described under paragraph 6 of the Securities; or 


        (2)   make
any change in the Escrow Agreement that would adversely affect the Securityholders. 




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


        An
amendment under this Section may not make any change that adversely affects the rights under Article 10 or 12 of any holder of Senior Indebtedness of the Company or of a
Subsidiary Guarantor then outstanding unless the holders of such Senior Indebtedness (or any group or representative thereof authorized to give a consent) consent to such change. 


        After
an amendment under this Section becomes effective, the Company shall mail to Securityholders a notice briefly describing such amendment. The failure to give such notice to all
Securityholders, or any defect therein, shall not impair or affect the validity of an amendment under this Section. 



        SECTION
9.03    Compliance with Trust Indenture Act.    Every amendment to this Indenture or the Securities shall
comply with the TIA as then in effect. 


        SECTION
9.04    Revocation and Effect of Consents and Waivers.    A consent to an amendment or a waiver by a Holder of
a Security shall bind the Holder and every subsequent Holder of that Security or portion of the Security that evidences the same debt as the consenting Holder's Security, even if
notation of the consent or waiver is not made on the Security. However, any such Holder or subsequent Holder may revoke the consent or waiver as to such Holder's Security or portion of the Security if
the Trustee receives the notice of revocation before the date the amendment or waiver becomes effective. After an amendment or waiver becomes effective, it shall bind every Securityholder. An
amendment or waiver becomes effective upon the execution of such amendment or waiver by the Trustee. 


        The
Company may, but shall not be obligated to, fix a record date for the purpose of determining the Securityholders entitled to give their consent or take any other action described
above or required or permitted to be taken pursuant to this Indenture. If a record date is fixed, then notwithstanding the immediately preceding paragraph, those Persons who were Securityholders at
such record date (or their duly designated proxies), and only those Persons, shall be entitled to give such consent or to revoke any consent previously given or to take any such action, whether or not
such Persons continue to be Holders after such record date. No such consent shall be valid or effective for more than 120 days after such record date. 


        SECTION
9.05    Notation on or Exchange of Securities.    If an amendment changes the terms of a Security, the Trustee
may require the Holder of the Security to deliver it to the Trustee. The Trustee may place an appropriate notation on the Security regarding the changed terms and return it to the Holder.
Alternatively, if the Company or the Trustee so determines, the Company in exchange for the Security shall issue and the Trustee shall authenticate a new Security that reflects the changed terms.
Failure to make the appropriate notation or to issue a new Security shall not affect the validity of such amendment. 



        SECTION
9.06    Trustee To Sign Amendments.    The Trustee shall sign any amendment authorized pursuant to this
Article 9 if the amendment does not adversely affect the rights, duties, liabilities or 


55





 



immunities
of the Trustee. If it does, the Trustee may but need not sign it. In signing such amendment the Trustee shall be entitled to receive indemnity reasonably satisfactory to it and to receive,
and (subject to Section 7.01) shall be fully protected in relying upon, an Officers' Certificate and an Opinion of Counsel stating that such amendment is authorized or permitted by this
Indenture. 


        SECTION
9.07    Payment for Consent.    Neither the Company nor any Affiliate of the Company shall, directly or
indirectly, pay or cause to be paid any consideration, whether by way of interest, fee or otherwise, to any Holder for or as an inducement to any consent, waiver or amendment of any of the terms or
provisions of this Indenture or the Securities unless such consideration is offered to be paid to all Holders that so consent, waive or agree to amend in the time frame set forth in solicitation
documents relating to such consent, waiver or agreement. 


 
 

Article 10
  
    Subordination


        SECTION
10.01.    Agreement To Subordinate.    The Company agrees, and each Securityholder by accepting a Security
agrees, that the Indebtedness evidenced by the Securities and all interest thereon is subordinated in right of payment, to the extent and in the manner provided in this Article 10, to the prior
payment in full in cash of all Senior Indebtedness of the Company and that the subordination is for the benefit of and enforceable by the holders of such Senior Indebtedness. The Securities shall in
all respects rank pari passu with all other Senior Subordinated Indebtedness of the Company and only Indebtedness of the Company which is Senior
Indebtedness of the Company shall rank senior to the Securities in accordance with the provisions set forth herein. All provisions of this Article 10 shall be subject to Section 10.12. 


        SECTION
10.02.    Liquidation, Dissolution, Bankruptcy.    Upon any payment or distribution of the assets of the
Company to creditors upon a total or partial liquidation or a total or partial dissolution of the Company or in a bankruptcy, reorganization, insolvency, receivership or similar proceeding relating to
the Company or its property: 



        (1)   holders
of Senior Indebtedness of the Company shall be entitled to receive payment in full in cash of such Senior Indebtedness before Securityholders shall be entitled
to receive any payment of principal of or interest or premium, if any, on the Securities; and 


        (2)   until
such Senior Indebtedness is paid in full in cash, any payment or distribution to which Securityholders would be entitled but for this Article 10 shall be
made to holders of such Senior Indebtedness as their interests may appear, except that Securityholders may receive shares of stock and any debt securities that are subordinated to all debt securities
issued in respect of such claims of such Senior Indebtedness to at least the same extent as the Securities are subordinated to such Senior Indebtedness. 




        SECTION
10.03.    Default on Senior Indebtedness of the Company.    The Company shall not pay the principal of or
interest or premium, if any, on the Securities or make any deposit pursuant to Section 8.01 and may not purchase, redeem or (except for Securities delivered to the Trustee pursuant to the
second sentence of paragraph 6 of the Securities) otherwise retire or defease any Securities (except for any redemption pursuant to paragraph 6 of the Securities) (collectively, "pay the
Securities") if either of the following (a "Payment Default") occurs (a) any Obligation on any Designated Senior Indebtedness of the Company is not paid in full in cash when due (whether at
stated maturity, by acceleration or otherwise); or (b) any other default on Designated Senior Indebtedness of the Company occurs and the maturity of such Designated Senior Indebtedness is
accelerated in accordance with its terms unless, in either case, the Payment Default has been cured or waived and any such acceleration has been rescinded or such Designated Senior Indebtedness has
been paid in full in cash or in any other manner satisfactory to the Representative of such Designated Senior Indebtedness; 


56





 

 provided, however, that the Company shall be entitled to pay the Securities without regard to the foregoing if the Company and
the Trustee receive written notice approving such payment from the Representative of any Designated Senior Indebtedness with respect to which the Payment Default has occurred and is continuing. During
the continuance of any default (other than a Payment Default) with respect to any Designated Senior Indebtedness of the Company pursuant to which the maturity thereof may be accelerated without
further notice (except such notice as may be required to effect such acceleration) or the expiration of any applicable grace periods, the Company shall not pay the Securities for a period (a "Payment
Blockage Period") commencing upon the receipt by the Trustee of (with a copy to the Company) written notice (a "Blockage Notice") of such default from the Representative of such Designated Senior
Indebtedness specifying an election to effect a Payment Blockage Period and ending 179 days thereafter. The Payment Blockage Period shall end earlier if such Payment Blockage Period is
terminated (1) by written notice to the Trustee and the Company from the Person or Persons who gave such Blockage Notice; (2) because the default giving rise to such Blockage Notice is
cured, waived or otherwise no longer continuing; or (3) because such Designated Senior Indebtedness has been discharged or repaid in full in cash or in any other manner satisfactory to the
Representative of such Designated Senior Indebtedness. Notwithstanding the provisions described in the immediately preceding two sentences (but subject to the provisions contained in the first
sentence of this Section), unless the holders of such Designated Senior Indebtedness or the Representative of such Designated Senior Indebtedness shall have accelerated the maturity of such Designated
Senior Indebtedness and such Designated Senior Indebtedness shall not have been discharged or repaid in full in cash or in any other manner satisfactory to the Representative of such Designated Senior
Indebtedness, the Company shall be entitled to resume payments on the Securities after termination of such Payment Blockage Period. The Securities shall not be subject to more than one Payment
Blockage Period in any consecutive 360-day period, irrespective of the number of defaults with respect to Designated Senior Indebtedness of the Company during such period. So long as there
shall remain outstanding any Senior Indebtedness under the Credit Agreement, a Blockage Notice may be given only by the administrative agent thereunder unless otherwise agreed to in writing by the
requisite lenders named therein; provided, however, if the Credit Agreement consists of more than on
facility or arrangement and there is more than one administrative agent, for purposes of this provision, the administrative agent will be the one indicated to the Trustee by the Company. For purposes
of this Section, no default or event of default which existed or was continuing on the date of the commencement of any Payment Blockage Period with respect to the Designated Senior Indebtedness of the
Company initiating such Payment Blockage Period shall be, or be made, the basis of the commencement of a subsequent Payment Blockage Period by the Representative of such Designated Senior
Indebtedness, unless such default or event of default shall have been cured or waived for a period of not less than 90 consecutive days. 


        SECTION
10.04.    Acceleration of Payment of Securities.    If payment of the Securities is accelerated because of an
Event of Default, the Company or the Trustee shall promptly notify the holders of the Designated Senior Indebtedness of the Company (or their Representatives) of the acceleration. 


        SECTION
10.05.    When Distribution Must Be Paid Over.    If a distribution is made to Securityholders that because of
this Article 10 should not have been made to them, the Securityholders who receive the distribution shall hold it in trust for holders of Senior Indebtedness of the Company and pay it over to
them as their interests may appear. 


        SECTION
10.06.    Subrogation.    After all Senior Indebtedness of the Company is paid in full and until the
Securities are paid in full, Securityholders shall be subrogated to the rights of holders of such Senior Indebtedness to receive distributions applicable to such Senior Indebtedness. A distribution
made under this Article 10 to holders of such Senior Indebtedness which otherwise would have been 


57





 



made
to Securityholders is not, as between the Company and Securityholders, a payment by the Company on such Senior Indebtedness. 


        SECTION
10.07.    Relative Rights.    This Article 10 defines the relative rights of Securityholders and
holders of Senior Indebtedness of the Company. Nothing in this Indenture shall: 



        (1)   impair,
as between the Company and Securityholders, the obligation of the Company, which is absolute and unconditional, to pay principal of and interest on the
Securities in accordance with their terms; or 


        (2)   prevent
the Trustee or any Securityholder from exercising its available remedies upon a Default, subject to the rights of holders of Senior Indebtedness of the Company
to receive distributions otherwise payable to Securityholders. 




        SECTION
10.08.    Subordination May Not Be Impaired by Company.    No right of any holder of Senior Indebtedness of
the Company to enforce the subordination of the Indebtedness evidenced by the Securities shall be impaired by any act or failure to act by the Company or by its failure to comply with this Indenture. 


        SECTION
10.09.    Rights of Trustee and Paying Agent.    Notwithstanding Section 10.03, the Trustee or Paying
Agent shall continue to make payments on the Securities and shall not be charged with knowledge of
the existence of facts that under this Article 10 would prohibit the making of any such payments unless, not less than two Business Days prior to the date of such payment, a Trust Officer of
the Trustee receives notice satisfactory to it that such payments are prohibited by this Article 10. The Company, the Registrar or co-registrar, the Paying Agent, a Representative
or a holder of Senior Indebtedness of the Company shall be entitled to give the notice; provided,  however, that, if an issue of Senior Indebtedness of the
Company has a Representative, only the Representative shall be entitled to give the notice. 


        The
Trustee in its individual or any other capacity shall be entitled to hold Senior Indebtedness of the Company with the same rights it would have if it were not Trustee. The Registrar
and co-registrar and the Paying Agent shall be entitled to do the same with like rights. The Trustee shall be entitled to all the rights set forth in this Article 10 with respect to
any Senior Indebtedness of the Company which may at any time be held by it, to the same extent as any other holder of such Senior Indebtedness; and nothing in Article 7 shall deprive the
Trustee of any of its rights as such holder. Nothing in this Article 10 shall apply to claims of, or payments to, the Trustee under or pursuant to Section 7.07. 


        SECTION
10.10.    Distribution or Notice to Representative.    Whenever any Person is to make a distribution or give a
notice to holders of Senior Indebtedness of the Company, such Person shall be entitled to make such distribution or give such notice to their Representative (if any). 



        SECTION
10.11.    Article 10 Not To Prevent Events of Default or Limit Right To Accelerate.    The failure to
make a payment pursuant to the Securities by reason of any provision in this Article 10 shall not be construed as preventing the occurrence of a Default. Nothing in this Article 10 shall
have any effect on the right of the Securityholders or the Trustee to accelerate the maturity of the Securities. 


        SECTION
10.12.    Trust Moneys Not Subordinated.    Notwithstanding anything contained herein to the contrary,
payments from money or the proceeds of U.S. Government Obligations held in trust under Article 8 by the Trustee for the payment of principal of and interest on the Securities shall not be
subordinated to the prior payment of any Senior Indebtedness of the Company or subject to the restrictions set forth in this Article 10, and none of the Securityholders shall be obligated to
pay over any such amount to the Company or any holder of Senior Indebtedness of the Company or any other creditor of the Company. 


        SECTION
10.13.    Trustee Entitled To Rely.    Upon any payment or distribution pursuant to this Article 10,
the Trustee and the Securityholders shall be entitled to rely (a) upon any order or decree of 


58





 



a
court of competent jurisdiction in which any proceedings of the nature referred to in Section 10.02 are pending, (b) upon a certificate of the liquidating trustee or agent or other
Person making such payment or distribution to the Trustee or to the Securityholders or (c) upon the Representatives for the holders of Senior Indebtedness of the Company for the purpose of
ascertaining the Persons entitled to participate in such payment or distribution, the holders of such Senior Indebtedness and other Indebtedness of the Company, the amount thereof or payable thereon,
the amount or amounts paid or distributed thereon and all other facts pertinent thereto or to this Article 10. In the event that the Trustee determines, in good faith, that evidence is required
with respect to the right of any Person as a holder of Senior Indebtedness of the Company to participate in any payment or distribution pursuant to this Article 10, the Trustee shall be
entitled to request such Person to furnish evidence to the reasonable satisfaction of the Trustee as to the amount of such Senior Indebtedness held by such Person, the extent to which such Person is
entitled to participate in such payment or distribution and other facts pertinent to the rights of such Person under this Article 10, and, if such evidence is not furnished, the Trustee shall
be entitled to defer any payment to such Person pending judicial determination as to the right of such Person to receive such payment. The provisions of Sections 7.01 and 7.02 shall be applicable to
all actions or omissions of actions by the Trustee pursuant to this Article 10. 


        SECTION
10.14.    Trustee To Effectuate Subordination.    Each Securityholder by accepting a Security authorizes and
directs the Trustee on his behalf to take such action as may be necessary or appropriate to acknowledge or effectuate the subordination between the Securityholders and the holders of Senior
Indebtedness of the Company as provided in this Article 10 and appoints the Trustee as attorney-in-fact for any and all such purposes. 



        SECTION
10.15.    Trustee Not Fiduciary for Holders of Senior Indebtedness of the Company.    The Trustee shall not be
deemed to owe any fiduciary duty to the holders of Senior Indebtedness of the Company and shall not be liable to any such holders if it shall mistakenly pay over or distribute to Securityholders or
the Company or any other Person, money or assets to which any holders of Senior Indebtedness of the Company shall be entitled by virtue of this Article 10 or otherwise. 


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


 
 

Article 11
  Guaranties



        SECTION
11.01.    Guaranties.    Each Guarantor hereby unconditionally and irrevocably guarantees, jointly and
severally, to each Holder and to the Trustee and its successors and assigns (a) the full and punctual payment of principal of and interest on the Securities when due, whether at maturity, by
acceleration, by redemption or otherwise, and all other monetary obligations of the Company under this Indenture and the Securities and (b) the full and punctual performance within applicable
grace periods of all other obligations of the Company under this Indenture and the Securities (all the foregoing being hereinafter collectively called the "Obligations"). Each Guarantor further agrees
that the Obligations may be extended or renewed, in whole or in part, without notice or further assent from such Guarantor and that such Guarantor will remain bound under this Article 11
notwithstanding any extension or renewal of any Obligation. 


59





 

        Each
Guarantor waives presentation to, demand of, payment from and protest to the Company of any of the Obligations and also waives notice of protest for nonpayment. Each Guarantor
waives notice of any default under the Securities or the Obligations. The obligations of each Guarantor hereunder shall not be affected by (1) the failure of any Holder or the Trustee to assert
any claim or demand or to enforce any right or remedy against the Company or any other Person under this Indenture, the Securities or any other agreement or otherwise; (2) any extension or
renewal of any thereof; (3) any rescission, waiver, amendment or modification of any of the terms or provisions of this Indenture, the Securities or any other agreement; (4) the release
of any security held by any Holder or the Trustee for the Obligations or any of them; (5) the failure of any Holder or the Trustee to exercise any right or remedy against any other guarantor of
the Obligations; or (6) any change in the ownership of such Guarantor. 


        Each
Guarantor further agrees that its Guaranty herein constitutes a guarantee of payment, performance and compliance when due (and not a guarantee of collection) and waives any right to
require that any resort be had by any Holder or the Trustee to any security held for payment of the Obligations. 


        Each
Guaranty is, to the extent and in the manner set forth in Article 12, subordinated and subject in right of payment to the prior payment in full of the principal of and
premium, if any, and interest on all Senior Indebtedness of the Guarantor giving such Guaranty and each Guaranty is made subject to such provisions of this Indenture. 


        Except
as expressly set forth in Sections 8.01(b), 11.02 and 11.06, the obligations of each Guarantor hereunder shall not be subject to any reduction, limitation, impairment or
termination for any reason, including any claim of waiver, release, surrender, alteration or compromise, and shall not be subject to any defense of setoff, counterclaim, recoupment or termination
whatsoever or by reason of the invalidity, illegality or unenforceability of the Obligations or otherwise. Without limiting the generality of the foregoing, the obligations of each Guarantor herein
shall not be discharged or impaired or otherwise affected by the failure of any Holder or the Trustee to assert any claim or demand or to enforce any remedy under this Indenture, the Securities or any
other agreement, by any waiver or modification of any thereof, by any default, failure or delay, willful or otherwise, in the performance of the obligations, or by any other act or thing or omission
or delay to do any other act or thing which may or might in any manner or to any extent vary the risk of such Guarantor or would otherwise operate as a discharge of such Guarantor as a matter of law
or equity. 


        Each
Guarantor further agrees that its Guarantee herein shall continue to be effective or be reinstated, as the case may be, if at any time payment, or any part thereof, of principal of
or interest on any Obligation is rescinded or must otherwise be restored by any Holder or the Trustee upon the bankruptcy or reorganization of the Company or otherwise. 


        In
furtherance of the foregoing and not in limitation of any other right which any Holder or the Trustee has at law or in equity against any Guarantor by virtue hereof, upon the failure
of the Company to pay the principal of or interest on any Obligation when and as the same shall become due, whether at maturity, by acceleration, by redemption or otherwise, or to perform or comply
with any other Obligation, each Guarantor hereby promises to and shall, upon receipt of written demand by the Trustee, forthwith pay, or cause to be paid, in cash, to the Holders or the Trustee an
amount equal to the sum of (A) the unpaid amount of such Obligations, (B) accrued and unpaid interest on such Obligations (but only to the extent not prohibited by law) and
(C) all other monetary Obligations of the Company to the Holders and the Trustee. 


        Each
Guarantor agrees that it shall not be entitled to any right of subrogation in respect of any Obligations guaranteed hereby until payment in full of all Obligations and all
obligations to which the Obligations are subordinated as provided in Article 12. Each Guarantor further agrees that, as between it, on the one hand, and the Holders and the Trustee, on the
other hand, (i) the maturity of the 


60





 



Obligations
Guaranteed hereby may be accelerated as provided in Article 6 for the purposes of such Guarantor's Guaranty herein, notwithstanding any stay, injunction or other prohibition
preventing such acceleration in respect of the Obligations guaranteed hereby, and (ii) in the event of any declaration of acceleration of such Obligations as provided in Article 6, such
Obligations (whether or not due and payable) shall forthwith become due and payable by such Guarantor for the purposes of this Section. 


        Each
Guarantor also agrees to pay any and all costs and expenses (including reasonable attorneys' fees) incurred by the Trustee or any Holder in enforcing any rights under this Section. 


        SECTION
11.02.    Limitation on Liability.    Any term or provision of this Indenture to the contrary notwithstanding,
the maximum aggregate amount of the Obligations guaranteed hereunder by any Subsidiary Guarantor shall not exceed the maximum amount that can be hereby guaranteed without rendering this Indenture, as
it relates to such Subsidiary Guarantor, voidable under applicable law relating to fraudulent conveyance or fraudulent transfer or similar laws affecting the rights of creditors generally. 


        SECTION
11.03.    Successors and Assigns.    This Article 11 shall be binding upon each Guarantor and its
successors and assigns and shall endure to the benefit of the successors and assigns of the Trustee and the Holders and, in the event of any transfer or assignment of rights by any Holder or the
Trustee, the rights and privileges conferred upon that party in this Indenture and in the Securities shall automatically extend to and be vested in such transferee or assignee, all subject to the
terms and conditions of this Indenture. 


        SECTION
11.04.    No Waiver.    Neither a failure nor a delay on the part of either the Trustee or the Holders in
exercising any right, power or privilege under this Article 11 shall operate as a waiver thereof, nor shall a single or partial exercise thereof preclude any other or further exercise of any
right, power or privilege. The rights, remedies and benefits of the Trustee and the Holders herein expressly specified are cumulative and not exclusive of any other rights, remedies or benefits which
either may have under this Article 11 at law, in equity, by statute or otherwise. 



        SECTION
11.05.    Modification.    No modification, amendment or waiver of any provision of this Article 11,
nor the consent to any departure by any Guarantor therefrom, shall in any event be effective unless the same shall be in writing and signed by the Trustee, and then such waiver or consent shall be
effective only in the specific instance and for the purpose for which given. No notice to or demand on any Guarantor in any case shall entitle such Guarantor to any other or further notice or demand
in the same, similar or other circumstances. 


        SECTION
11.06.    Release of Subsidiary Guarantor.    A Subsidiary Guarantor will be released from its obligations
under this Article 11 (other than any obligation that may have arisen under Section 11.07) 



        (1)   upon
the sale of other disposition (including by way of consolidation or merger) of a Subsidiary Guarantor, including the sale of disposition of Capital Stock of a
Subsidiary Guarantor following which such Subsidiary Guarantor is no longer a Subsidiary; 


        (2)   upon
the sale or disposition of all or substantially all the assets of such Subsidiary Guarantor, 


        (3)   upon
the designation of such Subsidiary Guarantor as an Unrestricted Subsidiary in accordance with the terms of this Indenture, 


        (4)   at
such time as such Subsidiary Guarantor does not have any Guarantee of any Indebtedness outstanding that would have required such Subsidiary Guarantor to enter into a
Guaranty Agreement pursuant to Section 4.13 and the Company provides an Officers' Certificate to the Trustee certifying that no such Indebtedness is outstanding and that the Company elects to
have such Subsidiary Guarantor released from this Article 11, or 



61





 




        (5)   upon
defeasance of the Securities or discharge of this Indenture pursuant to Article 8; 



provided, however, that in the case of clauses (1) and (2) above, (i) such sale or
other disposition is made to a Person other than the Company, Parent or a Subsidiary Guarantor, (ii) such sale or disposition is otherwise permitted by this Indenture and (iii) the
Company provides an Officers' Certificate to the Trustee to the effect that the Company will comply with its obligations under Section 4.06. 





At
the request of the Company, the Trustee shall execute and deliver an appropriate instrument evidencing such release. 


        SECTION
11.07.    Contribution.    Each Subsidiary Guarantor that makes a payment under its Subsidiary Guaranty shall
be entitled upon payment in full of all guarantied obligations under this Indenture to a contribution from each other Subsidiary Guarantor in an amount equal to such other Subsidiary Guarantor's  pro rata portion of such payment based on the respective net assets of all the Subsidiary Guarantors at the time of such payment determined in
accordance with GAAP. 


 
 

Article 12
  
    Subordination of Guaranties


        SECTION
12.01.    Agreement To Subordinate.    Each Guarantor agrees, and each Securityholder by accepting a Security
agrees, that the Indebtedness evidenced by such Guarantor's Guaranty is subordinated in right of payment, to the extent and in the manner provided in this Article 12, to the
prior payment in full in cash of all Senior Indebtedness of such Guarantor and that the subordination is for the benefit of and enforceable by the holders of such Senior Indebtedness. The Obligations
of a Guarantor under its Guaranty shall in all respects rank pari passu with all other Senior Subordinated Indebtedness of such Guarantor and only
Senior Indebtedness of such Guarantor (including such Guarantor's Guaranty of Senior Indebtedness of the Company) shall rank senior to the Obligations of such Guarantor in accordance with the
provisions set forth herein. 


        SECTION
12.02.    Liquidation, Dissolution, Bankruptcy.    Upon any payment or distribution of the assets of any
Guarantor to creditors upon a total or partial liquidation or a total or partial dissolution of such Guarantor or in a bankruptcy, reorganization, insolvency, receivership or similar proceeding
relating to such Guarantor or its property: 



        (1)   holders
of Senior Indebtedness of such Guarantor shall be entitled to receive payment in full in cash of such Senior Indebtedness before Securityholders shall be
entitled to receive any payment pursuant to the Guaranty of such Guarantor; and 


        (2)   until
the Senior Indebtedness of any Guarantor is paid in full in cash, any payment or distribution to which Securityholders would be entitled but for this
Article 12 shall be made to holders of such Senior Indebtedness as their interests may appear, except that Securityholders may receive shares of stock and any debt securities of such Guarantor
that are subordinated to all debt securities issued in respect of claims of such Senior Indebtedness to at least the same extent as such Guaranty is subordinated to such Designated Senior
Indebtedness. 




        SECTION
12.03.    Default on Senior Indebtedness of Guarantor.    No Guarantor shall make its Guaranty or purchase,
redeem or otherwise retire any Securities or other Obligations (collectively, "pay its Guaranty") if either of the following (a "Guarantor Payment Default") occurs (a) any Obligation on any
Designated Senior Indebtedness of such Guarantor is not paid in full in cash when due (whether at stated maturity, by acceleration or otherwise); or (b) any other default on Designated Senior
Indebtedness of such Guarantor occurs and the maturity of such Designated Senior Indebtedness is accelerated in accordance with its terms; unless, in either case, the Guarantor Payment Default has
been cured or waived and any such acceleration has been rescinded or such Designated Senior 


62





 

Indebtedness
has been paid in full in cash or in any other manner satisfactory to the Representative of such Designated Senior Indebtedness; provided,  however, that any
Guarantor shall be entitled to pay its Guaranty without regard to the foregoing if such Guarantor and the Trustee receive written
notice approving such payment from the Representative of any Designated Senior Indebtedness with respect to which the Guarantor Payment Default has occurred and is continuing. During the continuance
of any default (other than a Guarantor Payment Default) with respect to any Designated Senior Indebtedness of such Guarantor pursuant to which the maturity thereof may be accelerated without further
notice (except such notice as may be required to effect such acceleration) or the expiration of any applicable grace periods, such Guarantor shall not pay its Guaranty for a period (a "Guarantor
Payment Blockage Period") commencing upon the receipt by the Trustee of (with a copy to such Guarantor) written notice (a "Guarantor Blockage Notice") of such default from the Representative of such
Designated Senior Indebtedness specifying an election to effect a Guarantor Payment Blockage Period and ending 179 days thereafter. The Guarantor Payment Blockage Period shall end earlier if
such Guarantor Payment Blockage Period is terminated (1) by written notice to the Trustee and such Guarantor from the Person or Persons who gave such Guarantor Blockage Notice;
(2) because the default giving rise to such Guarantor Blockage Notice is cured, waived or otherwise no longer continuing; or (3) because such Designated Senior Indebtedness has been
discharged or repaid in full in cash or in any other manner satisfactory to the Representative of such Designated Senior Indebtedness. Notwithstanding the provisions described in the immediately
preceding two sentences (but subject to the provisions contained in the first sentence of this Section), unless the holders of such Designated Senior Indebtedness giving such Guarantor Payment Notice
or the Representative of such Designated Senior Indebtedness shall have accelerated the maturity of such Designated Senior Indebtedness and such Designated Senior Indebtedness shall not have been
discharged or repaid in full in cash or in any other manner satisfactory to the Representative of such Designated Senior Indebtedness, any Guarantor shall be entitled to resume payments pursuant to
its Guaranty after termination of such Guarantor Payment Blockage Period. No Guarantor shall be subject to more than one Guarantor Payment Blockage Period in any consecutive 360-day
period, irrespective of the number of defaults with respect to Designated Senior Indebtedness of such Guarantor during such period. So long as there shall remain outstanding any Senior Indebtedness
under the Credit Agreement, a Guarantor Blockage Notice may be given only by the administrative agent thereunder unless otherwise agreed to in writing by the requisite lenders named therein;  provided,
however, if the Credit Agreement consists of more than on facility or arrangement and there is
more than one administrative agent, for purposes of this provision, the administrative agent will be the one indicated to the Trustee by the Company. For purposes of this Section, no default or event
of default which existed or was continuing on the date of the commencement of any Guarantor Payment Blockage Period with respect to the Designated Senior Indebtedness of such Guarantor initiating such
Guarantor Payment Blockage Period shall be, or be made, the basis of the commencement of a subsequent Guarantor Payment Blockage Period by the Representative of such Designated Senior Indebtedness
unless such default or event of default shall have been cured or waived for a period of not less than 90 consecutive days. 


        SECTION
12.04.    Demand for Payment.    If a demand for payment is made on a Guarantor pursuant to Article 11,
the Trustee shall promptly notify the holders of the Designated Senior Indebtedness of such Guarantor (or their Representatives) of such demand. 


        SECTION
12.05.    When Distribution Must Be Paid Over.    If a distribution is made to Securityholders that because of
this Article 12 should not have been made to them, the Securityholders who receive the distribution shall hold it in trust for holders of Senior Indebtedness of the applicable Guarantor and pay
it over to them or their Representatives as their interests may appear. 


        SECTION
12.06.    Subrogation.    After all Senior Indebtedness of a Guarantor is paid in full and until the
Securities are paid in full, Securityholders shall be subrogated to the rights of holders of such Senior Indebtedness to receive distributions applicable to Senior Indebtedness of such Guarantor. A 


63





 



distribution
made under this Article 12 to holders of such Senior Indebtedness which otherwise would have been made to Securityholders is not, as between the relevant Guarantor and
Securityholders, a payment by such Guarantor on such Senior Indebtedness. 


        SECTION
12.07.    Relative Rights.    This Article 12 defines the relative rights of Securityholders and
holders of Senior Indebtedness of a Guarantor. Nothing in this Indenture shall: 



        (1)   impair,
as between a Guarantor and Securityholders, the obligation of such Guarantor, which is absolute and unconditional, to pay its Guaranty to the extent set forth in
Article 11; or 


        (2)   prevent
the Trustee or any Securityholder from exercising its available remedies upon a default by such Guarantor under its Guaranty, subject to the rights of holders of
Senior Indebtedness of such Guarantor to receive distributions otherwise payable to Securityholders. 




        SECTION
12.08.    Subordination May Not Be Impaired by Company.    No right of any holder of Senior Indebtedness of
any Guarantor to enforce the subordination of the Guaranty of such Guarantor shall be impaired by any act or failure to act by such Guarantor or by its failure to comply with this Indenture. 



        SECTION
12.09.    Rights of Trustee and Paying Agent.    Notwithstanding Section 12.03, the Trustee or Paying
Agent shall continue to make payments on any Guaranty and shall not be charged with knowledge of the existence of facts that would prohibit the making of any such payments unless, not less than two
Business Days prior to the date of such payment, a Trust Officer of the Trustee receives written notice satisfactory to it that such payments are prohibited by this Article 12. The Company, the
relevant Guarantor, the Registrar or co-registrar, the Paying Agent, a Representative or a holder of Senior Indebtedness of such Guarantor shall be entitled to give the notice;  provided, however, that, if an issue of Senior Indebtedness of any Guarantor has a Representative, only
the Representative shall be entitled to give the notice. 


        The
Trustee in its individual or any other capacity shall be entitled to hold Senior Indebtedness of any Guarantor with the same rights it would have if it were not the Trustee. The
Registrar and co-registrar and the Paying Agent shall be entitled to do the same with like rights. The Trustee shall be entitled to all the rights set forth in this Article 12 with
respect to any Senior Indebtedness of any Guarantor which may at any time be held by it, to the same extent as any other holder of such Senior Indebtedness; and nothing in Article 7 shall
deprive the Trustee of any of its rights as such holder. Nothing in this Article 12 shall apply to claims of, or payments to, the Trustee under or pursuant to Section 7.07. 



        SECTION
12.10.    Distribution or Notice to Representative.    Whenever any Person is to make a distribution or give a
notice to holders of Senior Indebtedness of any Guarantor, such Person shall be entitled to make such distribution or give such notice to their Representative (if any). 


        SECTION
12.11.    Article 12 Not To Prevent Events of Default or Limit Right To Demand Payment.    The failure
to make a payment pursuant to a Guaranty by reason of any provision in this Article 12 shall not be construed as preventing the occurrence of a Default. Nothing in this Article 12 shall
have any effect on the right of the Securityholders or the Trustee to make a demand for payment on any Guarantor pursuant to its Guaranty. 


        SECTION
12.12.    Trustee Entitled To Rely.    Upon any payment or distribution pursuant to this Article 12,
the Trustee and the Securityholders shall be entitled to rely (a) upon any order or decree of a court of competent jurisdiction in which any proceedings of the nature referred to in
Section 12.02 are pending, (b) upon a certificate of the liquidating trustee or agent or other Person making such payment or distribution to the Trustee or to the Securityholders or
(c) upon the Representatives for the holders of Senior Indebtedness of any Guarantor for the purpose of ascertaining the Persons entitled to participate in such payment or distribution, the
holders of such Senior Indebtedness and other 


64





 



indebtedness
of such Guarantor, the amount thereof or payable thereon, the amount or amounts paid or distributed thereon and all other facts pertinent thereto or to this Article 12. In the
event that the Trustee determines, in good faith, that evidence is required with respect to the right of any Person as a holder of Senior Indebtedness of any Guarantor to participate in any payment or
distribution pursuant to this Article 12, the Trustee shall be entitled to request such Person to furnish evidence to the reasonable satisfaction of the Trustee as to the amount of Senior
Indebtedness of such Guarantor held by such Person, the extent to which such Person is entitled to participate in such payment or distribution and other facts pertinent to the rights of such Person
under this Article 12, and, if such evidence is not furnished, the Trustee shall be entitled to defer any payment to such Person pending judicial determination as to the right of such Person to
receive such payment. The provisions of Sections 7.01 and 7.02 shall be applicable to all actions or omissions of actions by the Trustee pursuant to this Article 12. 



        SECTION
12.13.    Trustee To Effectuate Subordination.    Each Securityholder by accepting a Security authorizes and
directs the Trustee on his behalf to take such action as may be necessary or appropriate to acknowledge or effectuate the subordination between the Securityholders and the holders of Senior
Indebtedness of any Guarantor as provided in this Article 12 and appoints the Trustee as attorney-in-fact for any and all such purposes. 


        SECTION
12.14.    Trustee Not Fiduciary for Holders of Senior Indebtedness of Guarantor.    The Trustee shall not be
deemed to owe any fiduciary duty to the holders of Senior Indebtedness of any Guarantor and shall not be liable to any such holders if it shall mistakenly pay over or distribute to Securityholders or
the Company or any other Person, money or assets to which any holders of such Senior Indebtedness shall be entitled by virtue of this Article 12 or otherwise. 


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


 
 

Article 13
  
    Miscellaneous



        SECTION
13.01.    Trust Indenture Act Controls.    If any provision of this Indenture limits, qualifies or conflicts
with another provision which is required to be included in this Indenture by the TIA, the required provision shall control. 


        SECTION
13.02.    Notices.    Any notice or communication shall be in writing and delivered in person or mailed by
first-class mail addressed as follows: 


        if
to the Company, Parent or any Subsidiary Guarantor: 




Cube
Acquisition Corp.

c/o Trimaran Fund Management, L.L.C.

425 Lexington Avenue

New York, NY 10017

Attention: Steven Flyer

Facsimile: (212) 885-4350 





        and



65





 


c/o
Bear Stearns Merchant Fund Corp.

383 Madison Avenue

40th Floor

New York, NY 10179

Attention: David King

Facsimile: (212) 272-7425 





        with
a copy to: 




Cahill
Gordon & Reindel LLP

80 Pine Street

New York, NY 10005-1702

Attention: Roger Meltzer, Esq.

Facsimile: (212) 269-5420 





        if
to the Trustee: 


        Prior
to August 11, 2003: 




U.S.
Bank National Association

180 E. 5th Street

St. Paul, MN 55101

Attention: Frank Leslie

Facsimile: (651) 244-0711 





        On
or after August 11, 2003: 




U.S.
Bank National Association

60 Livingston Avenue

St. Paul, MN 55107-2292

Attention: Frank Leslie

Facsimile: (651) 495-8097 





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


        Any
notice or communication mailed to a Securityholder shall be mailed to the Securityholder at the Securityholder's address as it appears on the registration books of the Registrar and
shall be sufficiently given if so mailed within the time prescribed. 


        Failure
to mail a notice or communication to a Securityholder or any defect in it shall not affect its sufficiency with respect to other Securityholders. If a notice or communication is
mailed in the manner provided above, it is duly given, whether or not the addressee receives it. 


        SECTION
13.03.    Communication by Holders with Other Holders.    Securityholders may communicate pursuant to
TIA § 312(b) with other Securityholders with respect to their rights under this Indenture or the Securities. The Company, Parent, any Subsidiary Guarantor, the Trustee, the
Registrar and anyone else shall have the protection of TIA § 312(c). 



        SECTION
13.04.    Certificate and Opinion as to Conditions Precedent.    Upon any request or application by the
Company to the Trustee to take or refrain from taking any action under this Indenture, the Company shall furnish to the Trustee: 



        (1)   an
Officers' Certificate in form and substance reasonably satisfactory to the Trustee stating that, in the opinion of the signers, all conditions precedent, if any,
provided for in this Indenture relating to the proposed action have been complied with; and 



66





 

        (2)   an
Opinion of Counsel in form and substance reasonably satisfactory to the Trustee stating that, in the opinion of such counsel, all such conditions precedent have been
complied with. 




        SECTION
13.05.    Statements Required in Certificate or Opinion.    Each certificate or opinion with respect to
compliance with a covenant or condition provided for in this Indenture shall include: 



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


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


        (3)   a
statement that, in the opinion of such 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 or not, in the opinion of such individual, such covenant or condition has been complied with. 




        SECTION
13.06.    When Securities Disregarded.    In determining whether the Holders of the required principal amount
of Securities have concurred in any direction, waiver or consent, Securities owned by the Company or by any Person directly or indirectly controlling or controlled by or under direct or indirect
common control with the Company shall be disregarded and deemed not to be outstanding, except that, for the purpose of determining whether the Trustee shall be protected in relying on any such
direction, waiver or consent, only Securities which the Trustee knows are so owned shall be so disregarded. Also, subject to the foregoing, only Securities outstanding at the time shall be considered
in any such determination. 


        SECTION
13.07.    Rules by Trustee, Paying Agent and Registrar.    The Trustee may make reasonable rules for action by
or a meeting of Securityholders. The Registrar and the Paying Agent may make reasonable rules for their functions. 


        SECTION
13.08.    Legal Holidays.    If a payment date is a Legal Holiday, payment shall be made on the next
succeeding day that is not a Legal Holiday, and no interest shall accrue for the intervening period. If a regular record date is a Legal Holiday, the record date shall not be affected. 



        SECTION
13.09.    Governing Law.    This Indenture and the Securities shall be governed by, and construed in
accordance with, the laws of the State of New York. 


        SECTION
13.10.    No Recourse Against Others.    A director, officer, employee or stockholder, as such, of the
Company, or any Guarantor shall not have any liability for any obligations of the Company under the Securities or this Indenture or of such Guarantor under its Guaranty, the Security Documents or this
Indenture or for any claim based on, in respect of or by reason of such obligations or their creation. By accepting a Security, each Securityholder shall waive and release all such liability. The
waiver and release shall be part of the consideration for the issue of the Securities. 


        SECTION
13.11.    Successors.    All agreements of the Company in this Indenture and the Securities shall bind its
successors. All agreements of the Trustee in this Indenture shall bind its successors. 


        SECTION
13.12.    Multiple Originals.    The parties may sign any number of copies of this Indenture. Each signed copy
shall be an original, but all of them together represent the same agreement. One signed copy is enough to prove this Indenture. 


        SECTION
13.13.    Table of Contents; Headings.    The table of contents, cross-reference sheet and headings of the
Articles and Sections of this Indenture have been inserted for convenience of reference 


67





 



only,
are not intended to be considered a part hereof and shall not modify or restrict any of the terms or provisions hereof. 


68





 

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



	 	 	CUBE ACQUISITION CORP.,
	

 	
 	

By:	
 	

/s/  STEVEN A. FLYER      

	 	 	 	 	Name:	Steven A. Flyer
	 	 	 	 	Title:	Chairman and President
	

 	
 	

By:	
 	

/s/  DAVID E. KING      

	 	 	 	 	Name:	David E. King
	 	 	 	 	Title:	Vice President and Secretary
	

 	
 	

CAC HOLDINGS CORP.,
	

 	
 	

By:	
 	

/s/  STEVEN A. FLYER      

	 	 	 	 	Name:	Steven A. Flyer
	 	 	 	 	Title:	Chairman and President
	

 	
 	

By:	
 	

/s/  DAVID E. KING      

	 	 	 	 	Name:	David E. King
	 	 	 	 	Title:	Vice President and Secretary
	

 	
 	

U.S. BANK NATIONAL ASSOCIATION,
	

 	
 	

By:	
 	

/s/  FRANK P. LESLIE      

	 	 	 	 	Name:	Frank P. Leslie
	 	 	 	 	Title:	Vice President




69







 
 

RULE 144A/REGULATION S APPENDIX    



 
 

PROVISIONS RELATING TO INITIAL SECURITIES,
  PRIVATE EXCHANGE SECURITIES
  AND EXCHANGE SECURITIES


        1.     Definitions



        1.1  Definitions


        For
the purposes of this Appendix the following terms shall have the meanings indicated below: 


        "Depository"
means The Depository Trust Company, its nominees and their respective successors. 


        "Exchange
Securities" means (1) the 87/8% Senior Subordinated Notes Due 2011 issued pursuant to the Indenture in connection with a Registered Exchange Offer
pursuant to a Registration Rights Agreement and (2) Additional Securities, if any, issued pursuant to a registration statement filed with the SEC under the Securities Act. 



        "Initial
Purchasers" means (1) with respect to the Initial Securities issued on the Issue Date, Credit Suisse First Boston LLC, Bear, Stearns & Co. Inc and CIBC World
Markets Corp. and (2) with respect to each issuance of Additional Securities, the Persons purchasing such Additional Securities under the related Purchase Agreement. 


        "Initial
Securities" means (1) $152.0 million aggregate principal amount of 87/8% Senior Subordinated Notes Due 2011 issued on the Issue Date and
(2) Additional Securities, if any, issued in a transaction exempt from the registration requirements of the Securities Act. 



        "Private
Exchange" means the offer by the Company, pursuant to a Registration Rights Agreement, to the Initial Purchasers to issue and deliver to each Initial Purchaser, in exchange for
the Initial Securities held by the Initial Purchaser as part of its initial distribution, a like aggregate principal amount of Private Exchange Securities. 


        "Private
Exchange Securities" means any 87/8% Senior Notes Subordinated Due 2011 issued in connection with a Private Exchange. 


        "Purchase
Agreement" means (1) with respect to the Initial Securities issued on the Issue Date, the Purchase Agreement dated July 17, 2003, among the Company, Parent and
the Initial Purchasers, and (2) with respect to each issuance of Additional Securities, the purchase agreement or underwriting agreement among the Company, Parent and the Persons purchasing
such Additional Securities. 


        "QIB"
means a "qualified institutional buyer" as defined in Rule 144A. 


        "Registered
Exchange Offer" means the offer by the Company, pursuant to a Registration Rights Agreement, to certain Holders of Initial Securities, to issue and deliver to such Holders,
in exchange for the Initial Securities, a like aggregate principal amount of Exchange Securities registered under the Securities Act. 



        "Registration
Rights Agreement" means (1) with respect to the Initial Securities issued on the Issue Date, the Registration Rights Agreement dated July 17, 2003, among the
Company, Parent and the Initial Purchasers and (2) with respect to each issuance of Additional Securities issued in a transaction exempt from the registration requirements of the Securities
Act, the registration rights agreement, if any, among the Company, Parent and the Persons purchasing such Additional Securities under the related Purchase Agreement. 


        "Securities"
means the Initial Securities, the Exchange Securities and the Private Exchange Securities, treated as a single class. 



        "Securities
Act" means the Securities Act of 1933. 





 



        "Securities
Custodian" means the custodian with respect to a Global Security (as appointed by the Depository), or any successor Person thereto and shall initially be the Trustee. 


        "Shelf
Registration Statement" means the registration statement issued by the Company in connection with the offer and sale of Initial Securities or Private Exchange Securities pursuant
to a Registration Rights Agreement. 


        "Transfer
Restricted Securities" means Securities that bear or are required to bear the legend set forth in Section 2.3(b) hereto. 


        1.2   Other Definitions



	Term
 
	 	Defined in

Section:
	 
	"Agent Members"	 	2.1(b	)
	"Global Security"	 	2.1(a	)
	"Regulation S"	 	2.1(a	)
	"Restricted Global Security"	 	2.1(a	)
	"Rule 144A"	 	2.1(a	)





        2.     The Securities.


        2.1   (a)
Form and Dating. Initial Securities offered and sold to a QIB in reliance on Rule 144A under the Securities
Act ("Rule 144A") or in reliance on Regulation S under the Securities Act ("Regulation S"), in each case as provided in a Purchase Agreement, and Private Exchange Securities, as provided
in a Registration Rights Agreement, shall be issued initially in the form of one or more permanent global Securities in definitive, fully registered form without interest coupons with the global
securities legend and restricted securities legend set forth in Exhibit 1 hereto (each, a "Restricted Global Security"), which shall be deposited on behalf of the purchasers of the Initial
Securities represented thereby with the Trustee, at its principal corporate trust office, as custodian for the Depository (or with such other custodian as the Depository may direct), and registered in
the name of the Depository or a nominee of the Depository, duly executed by the Company and authenticated by the Trustee as hereinafter provided. The aggregate principal amount of the Global
Securities may from time to time be increased or decreased by adjustments made on the records of the Trustee and the Depository or its nominee as hereinafter provided. Exchange Securities shall be
issued in global form (with the global securities legend set forth in Exhibit 1 hereto) or in certificated form at the option of the Holders thereof from time to time. Exchange Securities
issued in global form and Restricted Global Securities are sometimes referred to in this Appendix as "Global Securities". 



        (b)   Book-Entry Provisions. This Section 2.1(b) shall apply only to a Global Security deposited with or on
behalf of the Depository. 




        The
Company shall execute and the Trustee shall, in accordance with this Section 2.1(b), authenticate and deliver initially one or more Global Securities that
(a) shall be registered in the name of the Depository for such Global Security or Global Securities or the nominee of such Depository and (b) shall be delivered by the Trustee to such
Depository or pursuant to such Depository's instructions or held by the Trustee as custodian for the Depository. 


        Members
of, or participants in, the Depository ("Agent Members") shall have no rights under this Indenture with respect to any Global Security held on their behalf by the Depository or
by the Trustee as the custodian of the Depository or under such Global Security, and the Company, the Trustee and any agent of the Company or the Trustee shall be entitled to treat the Depository as
the absolute owner of such Global Security for all purposes whatsoever. Notwithstanding the foregoing, nothing herein shall prevent the Company, the Trustee or any agent of the Company or the Trustee
from giving effect to any written certification, proxy or other authorization furnished by the Depository or impair, as between the Depository and its Agent Members, the operation of customary
practices of such Depository governing the exercise of the rights of a holder of a beneficial interest in any Global Security. 


2





 



        (c)   Certificated Securities. Except as provided in this Section 2.1 or Section 2.3 or 2.4, owners of beneficial
interests in Restricted Global Securities shall not be entitled to receive physical delivery of certificated Securities. 




        2.2   Authentication. The Trustee shall authenticate and deliver: (1) on the Issue Date, an aggregate principal amount
of $152.0 million 87/8% Senior Subordinated Notes Due 2011, (2) any Additional Securities for an original issue in an aggregate principal amount specified in the written
order of the Company pursuant to Section 2.02 of the Indenture and (3) Exchange Securities or Private Exchange Securities for issue only in a Registered Exchange Offer or a Private
Exchange, respectively, pursuant to a Registration Rights Agreement, for a like principal amount of Initial Securities, in each case upon a written order of the Company signed by two Officers or by an
Officer and either an Assistant Treasurer or an Assistant Secretary of the Company. Such order shall specify the amount of the Securities to be authenticated and the date on which the original issue
of Securities is to be authenticated and, in the case of any issuance of Additional Securities pursuant to Section 2.13 of the Indenture, shall certify that such issuance is in compliance with
Section 4.03 of the Indenture. 



        2.3   Transfer and Exchange.




        (a)   Transfer and Exchange of Global Securities.




        (1)   The
transfer and exchange of Global Securities or beneficial interests therein shall be effected through the Depository, in accordance with this Indenture (including
applicable restrictions on transfer set forth herein, if any) and the procedures of the Depository therefor. A transferor of a beneficial interest in a Global Security shall deliver to the Registrar a
written order given in accordance with the Depositary's procedures containing information regarding the participant account of the Depositary to be credited with a beneficial interest in the Global
Security. The Registrar shall, in accordance with such instructions instruct the Depositary to credit to the account of the Person specified in such instructions a beneficial interest in the Global
Security and to debit the account of the Person making the transfer the beneficial interest in the Global Security being transferred. 


        (2)   Notwithstanding
any other provisions of this Appendix (other than the provisions set forth in Section 2.4), a Global Security may not be transferred as a whole
except by the Depository to a nominee of the Depository or by a nominee of the Depository to the Depository or another nominee of the Depository or by the Depository or any such nominee to a successor
Depository or a nominee of such successor Depository. 


        (3)   In
the event that a Restricted Global Security is exchanged for Securities in certificated registered form pursuant to Section 2.4 of this Appendix, prior to the
consummation of a Registered Exchange Offer or the effectiveness of a Shelf Registration Statement with respect to such Securities, such Securities may be exchanged only in accordance with such
procedures as are substantially consistent with the provisions of this Section 2.3 (including the certification requirements set forth on the reverse of the Initial Securities intended to
ensure that such transfers comply with Rule 144A or Regulation S, as the case may be) and such other procedures as may from time to time be adopted by the Company. 



        (b)   Legend.




        (1)   Except
as permitted by the following paragraphs (2), (3) and (4), each Security certificate evidencing the Restricted Global Securities (and all Securities issued
in exchange therefor or in substitution thereof) shall bear a legend in substantially the following form: 




THIS
SECURITY (OR ITS PREDECESSOR) WAS ORIGINALLY ISSUED IN A TRANSACTION EXEMPT FROM REGISTRATION UNDER THE SECURITIES ACT OF 1933 (THE "SECURITIES ACT"), AND THIS SECURITY MAY NOT BE 





3





 



OFFERED,
SOLD OR OTHERWISE TRANSFERRED IN THE ABSENCE OF SUCH REGISTRATION OR AN APPLICABLE EXEMPTION THEREFROM. EACH PURCHASER OF THIS SECURITY IS HEREBY NOTIFIED THAT THE SELLER OF THIS SECURITY MAY
BE RELYING ON THE EXEMPTION FROM THE PROVISIONS OF SECTION 5 OF THE SECURITIES ACT PROVIDED BY RULE 144A THEREUNDER. 



THE
HOLDER OF THIS SECURITY AGREES FOR THE BENEFIT OF THE COMPANY THAT (A) THIS NOTE MAY BE OFFERED, RESOLD, PLEDGED OR OTHERWISE TRANSFERRED, ONLY (I) TO THE COMPANY, (II) IN THE
UNITED STATES TO A PERSON WHOM THE SELLER REASONABLY BELIEVES IS A QUALIFIED INSTITUTIONAL BUYER (AS DEFINED IN RULE 144A UNDER THE SECURITIES ACT) IN A TRANSACTION MEETING THE REQUIREMENTS OF RULE
144A, (III) OUTSIDE THE UNITED STATES IN AN OFFSHORE TRANSACTION IN ACCORDANCE WITH RULE 904 UNDER THE SECURITIES ACT, (IV) PURSUANT TO EXEMPTION FROM REGISTRATION UNDER THE SECURITIES
ACT PROVIDED BY RULE 144 THEREUNDER (IF AVAILABLE) OR (V) PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT, IN EACH OF CASES (I) THROUGH (V) IN ACCORDANCE
WITH ANY APPLICABLE SECURITIES LAWS OF ANY STATE OF THE UNITED STATES, AND (B) THE HOLDER WILL, AND EACH SUBSEQUENT HOLDER IS REQUIRED TO, NOTIFY ANY PURCHASER OF THIS NOTE FROM IT OF THE
RESALE RESTRICTIONS REFERRED TO IN (A) ABOVE. 





        (2)   Upon
any sale or transfer of a Transfer Restricted Security (including any Transfer Restricted Security represented by a Restricted Global Security) pursuant to
Rule 144 under the Securities Act, the Registrar shall permit the transferee thereof to exchange such Transfer Restricted Security for a certificated Security that does not bear the legend set
forth above and rescind any restriction on the transfer of such Transfer Restricted Security, if the transferor thereof certifies in writing to the Registrar that such sale or transfer was made in
reliance on Rule 144 (such certification to be in the form set forth on the reverse of the Security). 


        (3)   After
a transfer of any Initial Securities or Private Exchange Securities pursuant to and during the period of the effectiveness of a Shelf Registration Statement with
respect to such Initial Securities or Private Exchange Securities, as the case may be, all requirements pertaining to legends on such Initial Security or such Private Exchange Security will cease to
apply, the requirements requiring any such
Initial Security or such Private Exchange Security issued to certain Holders be issued in global form will cease to apply, and a certificated Initial Security or Private Exchange Security or an
Initial Security or Private Exchange Security in global form, in each case without restrictive transfer legends, will be available to the transferee of the Holder of such Initial Securities or Private
Exchange Securities upon exchange of such transferring Holder's certificated Initial Security or Private Exchange Security or directions to transfer such Holder's interest in the Global Security, as
applicable. 


        (4)   Upon
the consummation of a Registered Exchange Offer with respect to the Initial Securities, all requirements pertaining to such Initial Securities that Initial
Securities issued to certain Holders be issued in global form will still apply with respect to Holders of such Initial Securities that do not exchange their Initial Securities, and Exchange Securities
in certificated or global form will be available to Holders that exchange such Initial Securities in such Registered Exchange Offer. 



4





 




        (5)   Upon
the consummation of a Private Exchange with respect to the Initial Securities, all requirements pertaining to such Initial Securities that Initial Securities issued
to certain Holders be issued in global form will still apply with respect to Holders of such Initial Securities that do not exchange their Initial Securities, and Private Exchange Securities in global
form with the global securities legend and the Restricted Securities Legend set forth in Exhibit 1 hereto will be available to Holders that exchange such Initial Securities in such Private
Exchange. 



        (c)   Cancellation or Adjustment of Global Security. At such time as all beneficial interests in a Global Security have either
been exchanged for certificated Securities, redeemed, purchased or canceled, such Global Security shall be returned to the Depository for cancellation or retained and canceled by the Trustee. At any
time prior to such cancellation, if any beneficial interest in a Global Security is exchanged for certificated Securities, redeemed, purchased or canceled, the principal amount of Securities
represented by such Global Security shall be reduced and an adjustment shall be made on the books and records of the Trustee (if it is then the Securities Custodian for such Global Security) with
respect to such Global Security, by the Trustee or the Securities Custodian, to reflect such reduction. 


        (d)   Obligations with Respect to Transfers and Exchanges of Securities. 




        (1)   To
permit registrations of transfers and exchanges, the Company shall execute and the Trustee shall authenticate certificated Securities and Global Securities at the
Registrar's or co-registrar's request. 


        (2)   No
service charge shall be made for any registration of transfer or exchange, but the Company may require payment of a sum sufficient to cover any transfer tax,
assessments, or similar governmental charge payable in connection therewith (other than any such transfer taxes, assessments or similar governmental charge payable upon exchange or transfer pursuant
to Sections 3.06, 4.10 and 9.05 of the Indenture). 


        (3)   The
Registrar or co-registrar shall not be required to register the transfer of or exchange of any Security for a period beginning 15 Business Days before
the mailing of a notice of an offer to repurchase or redeem Securities or 15 Business Days before an interest payment date. 


        (4)   Prior
to the due presentation for registration of transfer of any Security, the Company, the Trustee, the Paying Agent, the Registrar or any co-registrar may
deem and treat the person in whose name a Security is registered as the absolute owner of such Security for the purpose of receiving payment of principal of and interest on such Security and for all
other purposes whatsoever, whether or not such Security is overdue, and none of the Company, the Trustee, the Paying Agent, the Registrar or any co-registrar shall be affected by notice to
the contrary. 


        (5)   All
Securities issued upon any transfer or exchange pursuant to the terms of this Indenture shall evidence the same debt and shall be entitled to the same benefits under
this Indenture as the Securities surrendered upon such transfer or exchange. 



        (e)   Obligation of the Trustee. 




        (1)   The
Trustee shall have no responsibility or obligation to any beneficial owner of a Global Security, a member of, or a participant in the Depository or other Person with
respect to the accuracy of the records of the Depository or its nominee or of any participant or member thereof, with respect to any ownership interest in the Securities or with respect to the
delivery to any participant, member, beneficial owner or other Person (other than the Depository) of any notice (including any notice of redemption) or the payment of any amount, under or with respect
to such Securities. All notices and communications to be given to the Holders and all payments to be made to Holders under the Securities shall be given or made only to or upon the order of the
registered Holders (which shall be the Depository or its nominee in the case of a Global Security). 



5





 

The
rights of beneficial owners in any Global Security shall be exercised only through the Depository subject to the applicable rules and procedures of the Depository. The Trustee may rely and shall
be fully protected in relying upon information furnished by the Depository with respect to its members, participants and any beneficial owners. 


        (2)   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 Depository participants, members or beneficial owners 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. 


        2.4   Certificated Securities.



        (a)   A
Restricted Global Security deposited with the Depository or with the Trustee as custodian for the Depository pursuant to Section 2.1 shall be transferred to the
beneficial owners thereof in the form of certificated Securities in an aggregate principal amount equal to the principal amount of such Global Security, in exchange for such Global Security, only if
such transfer complies with Section 2.3 and (1) the Depository notifies the Company that it is unwilling or unable to continue as Depository for such Restricted Global Security and a
successor depositary is not appointed by the Company within 30 days of such notice or if at any time such Depository ceases to be a "clearing agency" registered under the Exchange Act and a
successor depository is not appointed by the Company within 30 days of the Company becoming aware thereof, or (2) a Default has occurred and is continuing or (3) the Company, in
its sole discretion, notifies the Trustee in writing that it elects to cause the issuance of certificated Securities under this Indenture. 



        (b)   Any
Restricted Global Security that is transferable to the beneficial owners thereof pursuant to this Section shall be surrendered by the Depository to the Trustee
located at its principal corporate trust office in the Borough of Manhattan, The City of New York, to be so transferred, in whole or from time to time in part, without charge, and the Trustee shall
authenticate and deliver, upon such transfer of each portion of such Restricted Global Security, an equal aggregate principal amount of certificated Initial Securities of authorized denominations. Any
portion of a Restricted Global Security transferred pursuant to this Section shall be executed, authenticated and delivered only in denominations of $1,000 principal amount and any integral multiple
thereof and registered in such names as the Depository shall direct. Any certificated Initial Security or Private Exchange Security delivered in exchange for an interest in the Restricted Global
Security shall, except as otherwise provided by Section 2.3(b), bear the restricted securities legend set forth in Exhibit 1 hereto. 


        (c)   Subject
to the provisions of Section 2.4(b), the registered Holder of a Global Security shall be entitled to 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 Securities. 



        (d)   In
the event of the occurrence of either of the events specified in Section 2.4(a), the Company shall promptly make available to the Trustee a reasonable supply
of certificated Securities in definitive, fully registered form without interest coupons. 




6











 
 

EXHIBIT 1
  to
  RULE 144A/REGULATION S APPENDIX    
    


 
  [FORM OF FACE OF INITIAL SECURITY]    
    


[Global
Securities Legend] 


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


        TRANSFERS
OF THIS GLOBAL SECURITY SHALL BE LIMITED TO TRANSFERS IN WHOLE, BUT NOT IN PART, TO NOMINEES OF DTC OR TO A SUCCESSOR THEREOF OR SUCH SUCCESSOR'S NOMINEE AND TRANSFERS OF
PORTIONS OF THIS GLOBAL SECURITY SHALL BE LIMITED TO TRANSFERS MADE IN ACCORDANCE WITH THE RESTRICTIONS SET FORTH IN THE INDENTURE REFERRED TO ON THE REVERSE HEREOF. 


[Restricted
Securities Legend] 


        THIS
SECURITY (OR ITS PREDECESSOR) WAS ORIGINALLY ISSUED IN A TRANSACTION EXEMPT FROM REGISTRATION UNDER THE SECURITIES ACT OF 1933 (THE "SECURITIES ACT"), AND THIS SECURITY MAY NOT BE
OFFERED, SOLD OR OTHERWISE TRANSFERRED OF IN THE ABSENCE OF SUCH REGISTRATION OR AN APPLICABLE EXEMPTION THEREFROM. EACH PURCHASER OF THIS SECURITY IS HEREBY NOTIFIED THAT THE SELLER OF THIS SECURITY
MAY BE RELYING ON THE EXEMPTION FROM THE PROVISIONS OF SECTION 5 OF THE SECURITIES ACT PROVIDED BY RULE 144A THEREUNDER. 



        THE
HOLDER OF THIS SECURITY AGREES FOR THE BENEFIT OF THE COMPANY THAT (A) THIS NOTE MAY BE OFFERED, RESOLD, PLEDGED OR OTHERWISE TRANSFERRED, ONLY (I) TO THE COMPANY,
(II) IN THE UNITED STATES TO A PERSON WHOM THE SELLER REASONABLY BELIEVES IS A QUALIFIED INSTITUTIONAL BUYER (AS DEFINED IN RULE 144A UNDER THE SECURITIES ACT) IN A TRANSACTION MEETING THE
REQUIREMENTS OF RULE 144A, (III) OUTSIDE THE UNITED STATES IN AN OFFSHORE TRANSACTION IN ACCORDANCE WITH RULE 904 UNDER THE SECURITIES ACT, (IV) PURSUANT TO AN EXEMPTION FROM
REGISTRATION UNDER THE SECURITIES ACT PROVIDED BY RULE 144 THEREUNDER (IF AVAILABLE) OR (V) PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT, IN EACH OF CASES
(I) THROUGH (V) IN ACCORDANCE WITH ANY APPLICABLE SECURITIES LAWS OF ANY STATE OF THE UNITED STATES, AND (B) THE HOLDER WILL, AND EACH SUBSEQUENT HOLDER IS REQUIRED TO, NOTIFY ANY
PURCHASER OF THIS NOTE FROM IT OF THE RESALE RESTRICTIONS REFERRED TO IN (A) ABOVE. 


        [[FOR
REGULATION S GLOBAL SECURITY ONLY] UNTIL 40 DAYS AFTER THE COMMENCEMENT OF THE OFFERING, AN OFFER OR SALE OF SECURITIES WITHIN THE UNITED STATES
BY A DEALER (AS DEFINED IN THE SECURITIES ACT) MAY VIOLATE THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT IF SUCH OFFER OR SALE IS MADE OTHERWISE THAN IN ACCORDANCE WITH RULE 144A
THEREUNDER.] 





 


[Temporary
Regulation S Global Security Legend] 


        EXCEPT
AS SET FORTH BELOW, BENEFICIAL OWNERSHIP INTERESTS IN THIS TEMPORARY REGULATION S GLOBAL SECURITY WILL NOT BE EXCHANGEABLE FOR INTERESTS IN THE PERMANENT REGULATION S GLOBAL
SECURITY OR ANY OTHER SECURITY REPRESENTING AN INTEREST IN THE SECURITIES REPRESENTED HEREBY WHICH DO NOT CONTAIN A LEGEND CONTAINING RESTRICTIONS ON TRANSFER, UNTIL THE EXPIRATION OF THE
"40-DAY DISTRIBUTION COMPLIANCE PERIOD" (WITHIN THE MEANING OF RULE 903(b)(2) OF REGULATION S UNDER THE SECURITIES ACT) AND THEN ONLY UPON CERTIFICATION IN FORM REASONABLY SATISFACTORY TO
THE TRUSTEE THAT SUCH BENEFICIAL INTERESTS ARE OWNED EITHER BY NON-U.S. PERSONS OR U.S. PERSONS WHO PURCHASED SUCH INTERESTS IN A TRANSACTION THAT DID NOT REQUIRE REGISTRATION UNDER THE
SECURITIES ACT. DURING SUCH 40-DAY DISTRIBUTION COMPLIANCE PERIOD, BENEFICIAL OWNERSHIP INTERESTS IN THIS TEMPORARY REGULATION S GLOBAL SECURITY MAY ONLY BE SOLD, PLEDGED OR TRANSFERRED
(I) TO THE COMPANY, (II) WITHIN THE UNITED STATES TO A PERSON WHOM THE SELLER REASONABLY BELIEVES IS A QUALIFIED INSTITUTIONAL BUYER (AS DEFINED IN RULE 144A UNDER THE SECURITIES ACT) IN
A TRANSACTION MEETING THE REQUIREMENTS OF RULE 144A, (III) OUTSIDE THE UNITED STATES IN A TRANSACTION IN ACCORDANCE WITH RULE 904 OF REGULATION S UNDER THE SECURITIES ACT, OR
(IV) PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT, IN EACH OF CASES (I) THROUGH (IV) IN ACCORDANCE WITH ANY APPLICABLE SECURITIES LAWS OF ANY STATE OF
THE UNITED STATES AND OTHER JURISDICTIONS. HOLDERS OF INTERESTS IN THIS TEMPORARY REGULATION S GLOBAL SECURITY WILL NOTIFY ANY PURCHASER OF THIS SECURITY OF THE RESALE RESTRICTIONS REFERRED TO ABOVE,
IF THEN APPLICABLE. 


        BENEFICIAL
INTERESTS IN THIS TEMPORARY REGULATION S GLOBAL SECURITY MAY BE EXCHANGED FOR INTERESTS IN A RULE 144A GLOBAL SECURITY ONLY IF (1) SUCH EXCHANGE OCCURS IN CONNECTION
WITH A TRANSFER OF THE SECURITIES IN COMPLIANCE WITH RULE 144A AND (2) THE TRANSFEROR OF THE REGULATION S GLOBAL SECURITY FIRST DELIVERS TO THE TRUSTEE A WRITTEN CERTIFICATE (IN THE FORM
ATTACHED TO THIS CERTIFICATE) TO THE EFFECT THAT THE REGULATION S GLOBAL SECURITY IS BEING TRANSFERRED (A) TO A PERSON WHO THE TRANSFEROR REASONABLY BELIEVES TO BE A QUALIFIED INSTITUTIONAL
BUYER WITHIN THE MEANING OF RULE 144A, (B) TO A PERSON WHO IS PURCHASING FOR ITS OWN ACCOUNT OR THE ACCOUNT OF A QUALIFIED INSTITUTIONAL BUYER IN A TRANSACTION MEETING THE REQUIREMENTS OF RULE
144A, AND (C) IN ACCORDANCE WITH ALL APPLICABLE SECURITIES LAWS OF THE STATES OF THE UNITED STATES AND OTHER JURISDICTIONS. 


        BENEFICIAL
INTERESTS IN A RULE 144A GLOBAL SECURITY MAY BE TRANSFERRED TO A PERSON WHO TAKES DELIVERY IN THE FORM OF AN INTEREST IN THE REGULATION S GLOBAL SECURITY, WHETHER BEFORE OR
AFTER THE EXPIRATION OF THE 40-DAY DISTRIBUTION COMPLIANCE PERIOD, ONLY IF THE TRANSFEROR FIRST DELIVERS TO THE TRUSTEE A WRITTEN CERTIFICATE (IN THE FORM ATTACHED TO THIS CERTIFICATE) TO
THE EFFECT THAT SUCH TRANSFER IS BEING MADE IN ACCORDANCE WITH RULE 903 OR 904 OF REGULATION S, RULE 144 (IF AVAILABLE) OR ANOTHER APPLICABLE EXEMPTION UNDER THE SECURITIES ACT (IF AVAILABLE). 


2





 


[Definitive
Regulation S Securities Legend] 


        IN
CONNECTION WITH ANY TRANSFER, THE HOLDER WILL DELIVER TO THE REGISTRAR AND TRANSFER AGENT SUCH CERTIFICATES AND OTHER INFORMATION AS SUCH TRANSFER AGENT MAY REASONABLY REQUIRE TO
CONFIRM THAT THE TRANSFER COMPLIES WITH THE FOREGOING RESTRICTIONS. 


3





 


	No.	

___________________	 	 	 	$	

_________




87/8%
Senior Subordinated Notes Due 2011 


        Cube
Acquisition Corp., a Texas corporation, promises to pay to Cede & Co., or registered assigns, the principal sum of            Dollars on August 1, 2011. 


        Interest
Payment Dates: February 1 and August 1. 



        Record
Dates: January 15 and July 15. 


        Additional
provisions of this Security are set forth on the other side of this Security. 


Dated:




	 	 	CUBE ACQUISITION CORP.
	

 	
 	

by	
 	

 
	 	 	 	 	  

	 	 	 	 	Name:
	 	 	 	 	Title:
	

 	
 	

by	
 	

 
	 	 	 	 	  

	 	 	 	 	Name:
	 	 	 	 	Title:





	TRUSTEE'S CERTIFICATE OF

         AUTHENTICATION	 	 
	

U.S. BANK NATIONAL ASSOCIATION	
 	

 
	 	 	as Trustee, certifies

that this is one of

the Securities referred

to in the Indenture.	 	 
	by	 	 	 	 
	 	 	  
 Authorized Signatory	 	 




4





 
[FORM
OF REVERSE SIDE OF INITIAL SECURITY] 


87/8%
Senior Subordinated Note Due 2011 


	1.
	Interest



        Cube
Acquisition Corp., a Texas corporation (such corporation, and its successors and assigns under the Indenture hereinafter referred to, being herein called the "Company"), promises to
pay interest on the principal amount of this Security at the rate per annum shown above; provided,  however, that if a Registration Default (as defined in
the Registration Rights Agreement) occurs, additional interest will accrue on this Security at a
rate of 0.50% per annum (increasing by an additional 0.50% per annum after each consecutive 90-day period that occurs after the date on which such Registration default occurs up to a
maximum additional interest rate of 1.00%) from and including the date on which any such Registration Default shall occur to but excluding the date on which all Registration Defaults have been cured.
The Company will pay interest semiannually on February 1 and August 1 of each year, commencing February 1, 2004. Interest on the Securities will accrue from the
most recent date to which interest has been paid or, if no interest has been paid, from July 31, 2003. Interest will be computed on the basis of a 360-day year of twelve
30-day months. The Company will pay interest on overdue principal at the rate borne by this Security plus 1.0% per annum, and it will pay interest on overdue installments of interest at
the same rate to the extent lawful. 


	2.
	Method of Payment



        The
Company will pay interest on the Securities (except defaulted interest) to the Persons who are registered holders of Securities at the close of business on the January 15 or
July 15 next preceding the interest payment date even if Securities are canceled after the record date and on or before the interest payment date. Holders must surrender Securities to a Paying
Agent to collect principal payments. The Company will pay principal and interest in money of the United States that at the time of payment is legal tender for payment of public and private debts.
Payments in respect of the Securities represented by a Global Security (including principal, premium and interest) will be made by wire transfer of immediately available funds to the accounts
specified by the Depository. The Company will make all payments in respect of a certificated Security (including principal, premium and interest) by mailing a check to the registered address of each
Holder thereof; provided, however, that payments on a certificated Security will be made by wire
transfer to a U.S. dollar account maintained by the payee with a bank in the United States if such Holder elects payment by wire transfer by giving written notice to the Trustee or the Paying Agent to
such effect designating such account no later than 30 days immediately preceding the relevant due date for payment (or such other date as the Trustee may accept in its discretion). 


	3.
	Paying Agent and Registrar



        Initially,
U.S. Bank National Association, a New York banking corporation (the "Trustee"), will act as Paying Agent and Registrar. The Company may appoint and change any Paying Agent,
Registrar or co-registrar without notice. The Company or any of its domestically incorporated Wholly Owned Subsidiaries may act as Paying Agent, Registrar or co-registrar. 


	4.
	Indenture



        The
Company issued the Securities under an Indenture dated as of July 31, 2003 ("Indenture"), among the Company, Parent and the Trustee. The terms of the Securities include those
stated in the Indenture and those made part of the Indenture by reference to the Trust Indenture Act of 1939 (15 U.S.C. §§
77aaa-77bbbb) as in effect on the date of the Indenture (the "Act"). Terms defined in the Indenture and not defined herein have the meanings ascribed thereto in the Indenture. The
Securities are subject to all such terms, and Securityholders are referred to the Indenture and the Act for a statement of those terms. 


5





 

        The
Securities are general unsecured obligations of the Company. The Company shall be entitled, subject to its compliance with Section 4.03 of the Indenture, to issue Additional
Securities pursuant to Section 2.13 of the Indenture. The Initial Securities issued on the Issue Date, any Additional Securities and all Exchange Securities or Private Exchange Securities
issued in exchange therefor will be treated as a single class for all purposes under the Indenture. The Indenture contains covenants that limit the ability of the Company and its subsidiaries to incur
additional indebtedness; pay dividends or distributions on, or redeem or repurchase capital stock; make investments; issue or sell capital stock of subsidiaries; engage in transactions with
affiliates; transfer or sell assets; guarantee indebtedness; restrict dividends or other payments of subsidiaries; consolidate, merge or transfer all or substantially all of its assets and the assets
of its subsidiaries. These covenants are subject to important exceptions and qualifications. 


	5.
	Optional Redemption



        Except
as set forth below and in paragraph 6, the Company shall not be entitled to redeem the Securities. 


        On
and after August 1, 2007, the Company shall be entitled at its option to redeem all or a portion of the Securities upon not less than 30 nor more than 60 days' notice,
at the redemption prices (expressed in percentages of principal amount on the redemption date) plus accrued interest to the redemption date (subject to the right of Holders of record on the relevant
record date to receive interest due on the relevant interest payment date), if redeemed during the 12-month period commencing on August 1 of the years set forth below: 



	Period
 
	 	Redemption

Price
	 
	2007	 	104.438	%
	2008	 	102.219	%
	2009 and thereafter	 	100.000	%






        In
addition, prior to August 1, 2006, the Company shall be entitled at its option on one or more occasions to redeem Securities (which includes Additional Securities, if any) in
an aggregate principal amount not to exceed 35% of the aggregate principal amount of the Securities (which includes Additional Securities, if any) originally issued at a redemption price (expressed as
a percentage of principal amount) of 108.875%, plus accrued and unpaid interest to the redemption date, with the Net Cash Proceeds from one or more Qualified Equity Offerings
(provided that if the Qualified Equity Offering is an offering by Parent, a portion of the Net Cash Proceeds thereof equal to the amount required to
redeem any such Securities is contributed to the equity capital of the Company); provided, however, that
(1) at least 65% of such aggregate principal amount of Securities (which includes Additional Securities, if any) remains outstanding immediately after the occurrence of each such redemption
(other than Securities held, directly or indirectly, by the Company or its Affiliates); and (2) each such redemption occurs within 90 days
after the date of the related Qualified Equity Offering. 


	6.
	Mandatory Redemption




        In
the event the conditions precedent to the release to the Company of the Escrowed Funds (as defined in the Escrow Agreement) are not satisfied on or prior to November 15, 2003
or the Merger Agreement is terminated at any time prior thereto, the Company shall redeem the Securities at a redemption price of 99.297% of the principal amount, plus accrued and unpaid interest to
the redemption date (subject to the right of Holders of record on the relevant record date to receive interest due on the related interest payment date). The Company will cause the notice of special
mandatory redemption to be mailed no later than the next Business Day following November 15, 2003 or following the date of the Merger Agreement is terminated, as applicable, and will redeem the
Securities five Business Days following the date of the notice of redemption. 


6





 
	7.
	Notice of Redemption



        Except
as set forth in paragraph 6 above, notice of redemption will be mailed at least 30 days but not more than 60 days before the redemption date to each Holder of
Securities to be redeemed at his registered address. Securities in denominations larger than $1,000 principal amount may be redeemed in part but only in whole multiples of $1,000. If money sufficient
to pay the redemption price of and accrued interest on all Securities (or portions thereof) to be redeemed on the redemption date is deposited with the Paying Agent on or before the redemption date
and certain other conditions are satisfied, on and after such date interest ceases to accrue on such Securities (or such portions thereof) called for redemption. 


	8.
	Put Provisions



        Upon
a Change of Control, any Holder of Securities will have the right to cause the Company to repurchase all or any part of the Securities of such Holder at a repurchase price equal to
101% of the principal amount of the Securities to be repurchased plus accrued interest to the date of repurchase (subject to the right of holders of record on the relevant record date to receive
interest due on the related interest payment date) as provided in, and subject to the terms of, the Indenture. 


	9.
	Guaranty



        The
payment by the Company of the principal of, and premium and interest on, the Securities is fully and unconditionally guaranteed on a joint and several senior subordinated basis by
each of the Guarantors to the extent set forth in the Indenture. 


	10.
	Subordination




        The
Securities are subordinated to Senior Indebtedness of the Company and the Guarantors on the terms and subject to the conditions set forth in the Indenture. To the extent provided in
the Indenture, Senior Indebtedness must be paid before the Securities may be paid. Each Securityholder by accepting a Security agrees to the subordination provisions contained in the Indenture and
authorizes the Trustee
to give it effect and appoints the Trustee as attorney-in-fact for such purpose. 


	11.
	Denominations; Transfer; Exchange



        The
Securities are in registered form without coupons in denominations of $1,000 principal amount and whole multiples of $1,000. A Holder may transfer or exchange Securities in
accordance with the Indenture. The Registrar may require a Holder, among other things, to furnish appropriate endorsements or transfer documents and to pay any taxes and fees required by law or
permitted by the Indenture. The Registrar need not register the transfer of or exchange any Securities selected for redemption (except, in the case of a Security to be redeemed in part, the portion of
the Security not to be redeemed) or any Securities for a period of 15 days before a selection of Securities to be redeemed or 15 days before an interest payment date. 


	12.
	Persons Deemed Owners




        The
registered Holder of this Security may be treated as the owner of it for all purposes. 


	13.
	Unclaimed Money



        If
money for the payment of principal or interest remains unclaimed for two years, the Trustee or Paying Agent shall pay the money back to the Company at its request unless an abandoned
property law designates another Person. After any such payment, Holders entitled to the money must look only to the Company and not to the Trustee for payment. 


	14.
	Discharge and Defeasance




        Subject
to certain conditions, the Company at any time shall be entitled to terminate some or all of its obligations under the Securities and the Indenture if the Company deposits with
the Trustee 


7





 

money
or U.S. Government Obligations for the payment of principal and interest on the Securities to redemption or maturity, as the case may be. 


	15.
	Amendment, Waiver




        Subject
to certain exceptions set forth in the Indenture, (a) the Indenture and the Securities may be amended with the written consent of the Holders of at least a majority in
principal amount outstanding of the Securities and (b) any default or noncompliance with any provision may be waived with the written consent of the Holders of a majority in principal amount
outstanding of the Securities. Subject to certain exceptions set forth in the Indenture, without the consent of any Securityholder, the Company, Parent, the Subsidiary Guarantors and the Trustee shall
be entitled to amend the Indenture or the Securities to cure any ambiguity, omission, defect or inconsistency, or to comply with Article 5 of the Indenture, or to provide for uncertificated
Securities in addition to or in place of certificated Securities, or to add guarantees with respect to the Securities, including Subsidiary Guaranties, or to secure the Securities, or to add
additional covenants or surrender rights and powers conferred on the Company or the Guarantors, or to comply with any request of the SEC in connection with qualifying the Indenture under the Act, or
to make any change that does not adversely affect the rights of any Securityholder, or to make changes in the form, authentication, transfer or legending of the Securities. 


	16.
	Defaults and Remedies



        Under
the Indenture, Events of Default include (a) default for 30 days in payment of interest on the Securities; (b) default in payment of principal on the
Securities at maturity, upon redemption pursuant to paragraph 5 or 6 of the Securities, upon acceleration or otherwise, or failure by the Company to redeem or purchase Securities when required;
(c) failure by the Company, Parent or any Subsidiary Guarantor to comply with other agreements in the Indenture or the Securities, in certain cases subject to notice and lapse of time;
(d) certain accelerations (including failure to pay within any grace period after final maturity) of other Indebtedness of the Company if the amount accelerated (or so unpaid) exceeds
$10.0 million; (e) certain events of bankruptcy or insolvency with respect to the Company, Parent and the Significant Subsidiaries; and (f) certain judgments or decrees for the
payment of money in excess of $10.0 million; and (g) certain defaults with respect to Guaranties. If an Event of Default occurs and is continuing, the Trustee or the Holders of at least
25% in principal amount of the Securities may declare all the Securities to be due and payable immediately. Certain events of bankruptcy or insolvency are Events of Default which will result in the
Securities being due and payable immediately upon the occurrence of such Events of Default. 


        Securityholders
may not enforce the Indenture or the Securities except as provided in the Indenture. The Trustee may refuse to enforce the Indenture or the Securities unless it receives
indemnity or security satisfactory to it. Subject to certain limitations, Holders of a majority in principal amount of the Securities may direct the Trustee in its exercise of any trust or power. The
Trustee may withhold from Securityholders notice of any continuing Default (except a Default in payment of principal or interest) if it determines that withholding notice is in the interest of the
Holders. 


	17.
	Trustee Dealings with the Company



        Subject
to certain limitations imposed by the Act, the Trustee under the Indenture, in its individual or any other capacity, may become the owner or pledgee of Securities and may
otherwise deal with and collect obligations owed to it by the Company or its Affiliates and may otherwise deal with the Company or its Affiliates with the same rights it would have if it were not
Trustee. 


	18.
	No Recourse Against Others



        A
director, officer, employee or stockholder, as such, of the Company or the Trustee shall not have any liability for any obligations of the Company under the Securities or the Indenture
or for any claim based on, in respect of or by reason of such obligations or their creation. By accepting a Security, each 


8





 



Securityholder
waives and releases all such liability. The waiver and release are part of the consideration for the issue of the Securities. 


	19.
	Authentication



        This
Security shall not be valid until an authorized signatory of the Trustee (or an authenticating agent) manually signs the certificate of authentication on the other side of this
Security. 


	20.
	Abbreviations




        Customary
abbreviations may be used in the name of a Securityholder or an assignee, such as TEN COM (=tenants in common), TEN ENT (=tenants by the entireties), JT TEN (=joint tenants
with rights of survivorship and not as tenants in common), CUST (=custodian), and U/G/M/A (=Uniform Gift to Minors Act). 


	21.
	CUSIP Numbers



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


	22.
	Holders' Compliance with Registration Rights Agreement



        Each
Holder of a Security, by acceptance hereof, acknowledges and agrees to the provisions of the Registration Rights Agreement, including the obligations of the Holders with respect to
a registration and the indemnification of the Company to the extent provided therein. 


	23.
	Governing Law



        THIS SECURITY SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.


        The
Company will furnish to any Securityholder upon written request and without charge to the Security holder a copy of the Indenture which has in it the text of this Security in larger
type. Requests may be made to: 




Cube
Acquisition Corp.

c/o Trimaran Fund Management, L.L.C.

425 Lexington Avenue

New York, NY 10017

Attention: Steven Flyer 




and




c/o
Bear Stearns Merchant Fund Corp.

383 Madison Avenue

40th Floor

New York, NY 10179

Attention: David King 




9





 






ASSIGNMENT
FORM 


To
assign this Security, fill in the form below: 


I
or we assign and transfer this Security to 



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


(Insert
assignee's soc. sec. or tax I.D. No.) 




and
irrevocably appoint                        agent to transfer this Security on the books of the Company. The agent may substitute
another to act for him. 



	

	

Date:	

                             
	
 	

Your Signature:	

  

	







Sign
exactly as your name appears on the other side of this Security. 


In
connection with any transfer of any of the Securities evidenced by this certificate occurring prior to the expiration of the period referred to in Rule 144(k) under the Securities Act after
the later of the date of original issuance of such Securities and the last date, if any, on which such Securities were owned by the Company or any Affiliate of the Company, the undersigned confirms
that such Securities are being transferred in accordance with its terms: 


CHECK
ONE BOX BELOW 



	

 	

(1)	
 	

o	
 	

to the Company; or
	

 	

(2)	
 	

o	
 	

pursuant to an effective registration statement under the Securities Act of 1933; or
	

 	

(3)	
 	

o	
 	

inside the United States to a "qualified institutional buyer" (as defined in Rule 144A under the Securities Act of 1933) that purchases for its own account or for the account of a qualified institutional buyer to whom notice is given that such
transfer is being made in reliance on Rule 144A, in each case pursuant to and in compliance with Rule 144A under the Securities Act of 1933; or
	 	 	 	 	 	 



10





 

	

 	

(4)	
 	

o	
 	

outside the United States in an offshore transaction within the meaning of Regulation S under the Securities Act in compliance with Rule 904 under the Securities Act of 1933; or
	

 	

(5)	
 	

o	
 	

pursuant to the exemption from registration provided by Rule 144 under the Securities Act of 1933.
	

 	

Unless one of the boxes is checked, the Trustee will refuse to register any of the Securities evidenced by this certificate in the name of any person other than the registered holder thereof; provided,
however, that if box (4) or (5) is checked, the Trustee shall be entitled to require, prior to registering any such transfer of the Securities, such legal opinions, certifications and other
information as the Company has reasonably requested 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 of 1933, such as the exemption
provided by Rule 144 under such Act.





	 	 	  
 Signature
	

Signature Guarantee:	
 	

 
	  
 Signature must be guaranteed	 	  
 Signature





        Signatures
must be guaranteed by an "eligible guarantor institution" meeting the requirements of the Registrar, which requirements include membership or participation in the Security
Transfer Agent Medallion Program ("STAMP") or such other "signature guarantee program" as may be determined by the Registrar in addition to, or in substitution for, STAMP, all in accordance with the
Securities Exchange Act of 1934, as amended. 




11





 
TO
BE COMPLETED BY PURCHASER IF (3) ABOVE IS CHECKED. 


        The
undersigned represents and warrants that it is purchasing this Security for its own account or an account with respect to which it exercises sole investment discretion and that it
and any such account is a "qualified institutional buyer" within the meaning of Rule 144A under the Securities Act of 1933, and is aware that the sale to it is being made in reliance on
Rule 144A and acknowledges that it has received such information regarding the Company as the undersigned has requested pursuant to Rule 144A or has determined not to request such
information and that it is aware that the transferor is relying upon the undersigned's foregoing representations in order to claim the exemption from registration provided by Rule 144A. 



	Dated:	  
	 	  

	 	 	 	Notice:	 	To be executed by

an executive officer




12





 
[TO
BE ATTACHED TO GLOBAL SECURITIES] 


 
 

SCHEDULE OF INCREASES OR DECREASES IN GLOBAL SECURITY    
    


The
following increases or decreases in this Global

Security have been made: 



	Date of

Exchange
 
	 	Amount of decrease

in Principal

amount of this

Global Security
	 	Amount of increase

in Principal amount

of this Global

Security
	 	Principal amount of

this Global

Security following

such decrease or

increase)
	 	Signature of

authorized officer

of Trustee or

Securities

Custodian

	  	 	 	 	 	 	 	 	 




13





 
OPTION OF HOLDER TO ELECT PURCHASE  


        If you want to elect to have this Security purchased by the Company pursuant to Section 4.06 or 4.10 of the Indenture, check the box: 


 o 


        If
you want to elect to have only part of this Security purchased by the Company pursuant to Section 4.06 or 4.10 of the Indenture, state the amount in principal
amount: $                  



	Dated:	  
	 	Your Signature:	  
(Sign exactly as your name appears on the

other side of this Security.)





	

Signature Guarantee:	

  
 (Signature must be guaranteed)





        Signatures
must be guaranteed by an "eligible guarantor institution" meeting the requirements of the Registrar, which requirements include membership or participation in the Security
Transfer Agent Medallion Program ("STAMP") or such other "signature guarantee program" as may be determined by
the Registrar in addition to, or in substitution for, STAMP, all in accordance with the Securities Exchange Act of 1934, as amended. 


14







 
 

EXHIBIT A    
    


[FORM OF FACE OF EXCHANGE SECURITY

OR PRIVATE EXCHANGE SECURITY]*/**/  





*/
[If the Security is to be issued in global form add the Global Securities Legend from Exhibit 1 to Appendix A and the attachment from such Exhibit 1 captioned
"[TO BE ATTACHED TO GLOBAL SECURITIES]—SCHEDULE OF INCREASES OR DECREASES IN GLOBAL SECURITY".] 


**/
[If the Security is a Private Exchange Security issued in a Private Exchange to an Initial Purchaser holding an unsold portion of its initial allotment, add the Restricted Securities
Legend from Exhibit 1 to Appendix A and replace the Assignment Form included in this Exhibit A with the Assignment Form included in such Exhibit 1.] 





 


	No.                         	 	$                        




87/8% Senior Subordinated Notes Due 2011  


        Cube Acquisition Corp., a Texas corporation, promises to pay to Cede & Co., or registered assigns, the principal sum
of                        Dollars on
August 1, 2011. 


        Interest
Payment Dates: February 1 and August 1. 



        Record
Dates: January 15 and July 15. 


        Additional
provisions of this Security are set forth on the other side of this Security. 


Dated:




	 	 	CUBE ACQUISITION CORP.
	

 	
 	

by	

 
	 	 	 	
 Name:

Title:
	

 	
 	

by	

 
	 	 	 	
 Name:

Title:





	TRUSTEE'S CERTIFICATE OF AUTHENTICATION	 	 
	

U.S. BANK NATIONAL ASSOCIATION

    as Trustee, certifies that this is one of the Securities

    referred to in the Indenture.	
 	

 
	

by	
 	

 	
 	

 	
 	

 
	 	 	
 Authorized Signatory	 	 	 	 




2





 
[FORM OF REVERSE SIDE OF EXCHANGE SECURITY

OR PRIVATE EXCHANGE SECURITY]

87/8% Senior Subordinated Note Due 2011  


        1.     Interest


        Cube
Acquisition Corp., a Texas corporation (such corporation, and its successors and assigns under the Indenture hereinafter referred to, being herein called the "Company"), promises to
pay interest on the principal amount of this Security at the rate per annum shown above[; provided,  however, that if a Registration Default (as defined in the Registration Rights Agreement) occurs, additional interest will accrue on this Security at a
rate of 0.50% per annum (increasing by an additional 0.50% per annum after each consecutive 90-day period that occurs after the date on which such Registration default occurs up to a
maximum additional interest rate of 1.00%) from and including the date on which any such Registration Default shall occur to but excluding the date on which all Registration Defaults have been
cured.]1 The Company will pay interest semiannually on February 1 and August 1 of each year, commencing February 1, 2004.
Interest on the Securities will accrue from the most recent date to which interest has been paid or, if no interest has
been paid, from July 31, 2003. Interest will be computed on the basis of a 360-day year of twelve 30-day months. The Company will pay interest on overdue principal at
the rate borne by this Security plus 1.0% per annum, and it will pay interest on overdue installments of interest at the same rate to the extent lawful. 


	1
	Insert
if at issuance any obligations survive under the Registration Rights Agreement. 



        2.     Method of Payment


        The
Company will pay interest on the Securities (except defaulted interest) to the Persons who are registered holders of Securities at the close of business on the January 15 or
July 15 next preceding the interest payment date even if Securities are canceled after the record date and on or before the interest payment date. Holders must surrender Securities to a Paying
Agent to collect principal payments. The Company will pay principal and interest in money of the United States that at the time of payment is legal tender for payment of public and private debts.
Payments in respect of the Securities represented by a Global Security (including principal, premium and interest) will be made by wire transfer of immediately available funds to the accounts
specified by the Depository. The Company will make all payments in respect of a certificated Security (including principal, premium and interest) by mailing a check to the registered address of each
Holder thereof; provided, however, that payments on a certificated Security will be made by wire
transfer to a U.S. dollar account maintained by the payee with a bank in the United States if such Holder elects payment by wire transfer by giving written notice to the Trustee or the Paying Agent to
such effect designating such account no later than 30 days immediately preceding the relevant due date for payment (or such other date as the Trustee may accept in its discretion). 



        3.     Paying Agent and Registrar


        Initially,
U.S. Bank National Association, a New York banking corporation (the "Trustee"), will act as Paying Agent and Registrar. The Company may appoint and change any Paying Agent,
Registrar or co-registrar without notice. The Company or any of its domestically incorporated Wholly Owned Subsidiaries may act as Paying Agent, Registrar or co-registrar. 


        4.     Indenture


        The
Company issued the Securities under an Indenture dated as of July 31, 2003 ("Indenture"), among the Company, Parent and the Trustee. The terms of the Securities include those
stated in the Indenture and those made part of the Indenture by reference to the Trust Indenture Act of 1939 (15 U.S.C. §§
77aaa-77bbbb) as in effect on the date of the Indenture (the "Act"). Terms defined in the Indenture and not defined herein have the meanings ascribed thereto in the Indenture. The
Securities 


3





 



are
subject to all such terms, and Securityholders are referred to the Indenture and the Act for a statement of those terms. 


        The
Securities are general unsecured obligations of the Company. The Company shall be entitled, subject to its compliance with Section 4.03 of the Indenture, to issue Additional
Securities pursuant to Section 2.13 of the Indenture. The Initial Securities issued on the Issue Date, any Additional Securities and all Exchange Securities or Private Exchange Securities
issued in exchange therefor will be treated as a single class for all purposes under the Indenture. The Indenture contains covenants that limit the ability of the Company and its subsidiaries to incur
additional indebtedness; pay dividends or distributions on, or redeem or repurchase capital stock; make investments; issue or sell capital stock of subsidiaries; engage in transactions with
affiliates; transfer or sell assets; guarantee indebtedness; restrict dividends or other payments of subsidiaries; consolidate, merge or transfer all or substantially all of its assets and the assets
of its subsidiaries. These covenants are subject to important exceptions and qualifications. 


        5.     Optional Redemption


        Except
as set forth below and in paragraph 6, the Company shall not be entitled to redeem the Securities. 



        On
and after August 1, 2007, the Company shall be entitled at its option to redeem all or a portion of the Securities upon not less than 30 nor more than 60 days' notice,
at the redemption prices (expressed in percentages of principal amount on the redemption date) plus accrued interest to the redemption date (subject to the right of Holders of record on the relevant
record date to receive interest due on the relevant interest payment date), 


        if
redeemed during the 12-month period commencing on August 1 of the years set forth below: 



	Period
 
	 	Redemption

Price
	 
	2007	 	104.438	%
	2008	 	102.219	%
	2009 and thereafter	 	100.000	%






        In
addition, prior to August 1, 2006, the Company shall be entitled at its option on one or more occasions to redeem Securities (which includes Additional Securities, if any) in
an aggregate principal amount not to exceed 35% of the aggregate principal amount of the Securities (which includes Additional Securities, if any) originally issued at a redemption price (expressed as
a percentage of principal amount) of 108.875%, plus accrued and unpaid interest to the redemption date, with the Net Cash Proceeds from one or more Qualified Equity Offerings
(provided that if the Qualified Equity Offering is an offering by Parent, a portion of the Net Cash Proceeds thereof equal to the amount required to
redeem any such Securities is contributed to the equity capital of the Company); provided, however, that
(1) at least 65% of such aggregate principal amount of Securities (which includes Additional Securities, if any) remains outstanding immediately after the occurrence of each such redemption
(other than Securities held, directly or indirectly, by the Company or its Affiliates); and (2) each such redemption occurs within 90 days
after the date of the related Qualified Equity Offering. 


        6.     Mandatory Redemption


        In
the event the conditions precedent to the release to the Company of the Escrowed Funds (as defined in the Escrow Agreement) are not satisfied on or prior to November 15, 2003
or the Merger Agreement is terminated at any time prior thereto, the Company shall redeem the Securities at a redemption price of 99.297% of the principal amount, plus accrued and unpaid interest to
the redemption date (subject to the right of Holders of record on the relevant record date to receive interest due on the related interest payment date). The Company will cause the notice of special 


4





 



mandatory
redemption to be mailed no later than the next Business Day following November 15, 2003 or following the date of the Merger Agreement is terminated, as applicable, and will redeem the
Securities five Business Days following the date of the notice of redemption. 


        7.     Notice of Redemption


        Except
as set forth in paragraph 6 above, notice of redemption will be mailed at least 30 days but not more than 60 days before the redemption date to each Holder of
Securities to be redeemed at his registered address. Securities in denominations larger than $1,000 principal amount may be redeemed in part but only in whole multiples of $1,000. If money sufficient
to pay the redemption price of and accrued interest on all Securities (or portions thereof) to be redeemed on the redemption date is deposited with the Paying Agent on or before the redemption date
and certain other conditions are satisfied, on and after such date interest ceases to accrue on such Securities (or such portions thereof) called for redemption. 


        8.     Put Provisions


        Upon
a Change of Control, any Holder of Securities will have the right to cause the Company to repurchase all or any part of the Securities of such Holder at a repurchase price equal to
101% of the principal amount of the Securities to be repurchased plus accrued interest to the date of repurchase (subject to the right of holders of record on the relevant record date to receive
interest due on the related interest payment date) as provided in, and subject to the terms of, the Indenture. 


        9.     Guaranty


        The
payment by the Company of the principal of, and premium and interest on, the Securities is fully and unconditionally guaranteed on a joint and several senior subordinated basis by
each of the Guarantors to the extent set forth in the Indenture. 


        10.   Subordination


        The
Securities are subordinated to Senior Indebtedness of the Company and the Guarantors on the terms and subject to the conditions set forth in the Indenture. To the extent provided in
the Indenture, Senior Indebtedness must be paid before the Securities may be paid. Each Securityholder by accepting a Security agrees to the subordination provisions contained in the Indenture and
authorizes the Trustee to give it effect and appoints the Trustee as attorney-in-fact for such purpose. 


        11.   Denominations; Transfer; Exchange


        The
Securities are in registered form without coupons in denominations of $1,000 principal amount and whole multiples of $1,000. A Holder may transfer or exchange Securities in
accordance with the Indenture. The Registrar may require a Holder, among other things, to furnish appropriate endorsements or transfer documents and to pay any taxes and fees required by law or
permitted by the Indenture. The Registrar need not register the transfer of or exchange any Securities selected for redemption (except, in the case of a Security to be redeemed in part, the portion of
the Security not to be redeemed) or any Securities for a period of 15 days before a selection of Securities to be redeemed or 15 days before an interest payment date. 



        12.   Persons Deemed Owners


        The
registered Holder of this Security may be treated as the owner of it for all purposes. 


        13.   Unclaimed Money


        If
money for the payment of principal or interest remains unclaimed for two years, the Trustee or Paying Agent shall pay the money back to the Company at its request unless an abandoned
property law designates another Person. After any such payment, Holders entitled to the money must look only to the Company and not to the Trustee for payment. 


5





 



        14.   Discharge and Defeasance


        Subject
to certain conditions, the Company at any time shall be entitled to terminate some or all of its obligations under the Securities and the Indenture if the Company deposits with
the Trustee money or U.S. Government Obligations for the payment of principal and interest on the Securities to redemption or maturity, as the case may be. 


        15.   Amendment; Waiver


        Subject
to certain exceptions set forth in the Indenture, (a) the Indenture and the Securities may be amended with the written consent of the Holders of at least a majority in
principal amount outstanding of the Securities and (b) any default or noncompliance with any provision may be waived with the
written consent of the Holders of a majority in principal amount outstanding of the Securities. Subject to certain exceptions set forth in the Indenture, without the consent of any Securityholder, the
Company, Parent, the Subsidiary Guarantors and the Trustee shall be entitled to amend the Indenture, or the Securities to cure any ambiguity, omission,
defect or inconsistency, or to comply with Article 5 of the Indenture, or to provide for uncertificated Securities in addition to or in place of certificated Securities, or to add guarantees
with respect to the Securities, including Subsidiary Guaranties, or to secure the Securities, or to add additional covenants or surrender rights and powers conferred on the Company or the Guarantors,
or to comply with any request of the SEC in connection with qualifying the Indenture under the Act, or to make any change that does not adversely affect the rights of any Securityholder or to make
changes in the form, authentication, transfer or legending of the Securities. 


        16.   Defaults and Remedies


        Under
the Indenture, Events of Default include (a) default for 30 days in payment of interest on the Securities; (b) default in payment of principal on the
Securities at maturity, upon redemption pursuant to paragraph 5 or 6 of the Securities, upon acceleration or otherwise, or failure by the Company to redeem or purchase Securities when required;
(c) failure by the Company, Parent or any Subsidiary Guarantor to comply with other agreements in the Indenture or the Securities, in certain cases subject to notice and lapse of time;
(d) certain accelerations (including failure to pay within any grace period after final maturity) of other Indebtedness of the Company if the amount accelerated (or so unpaid) exceeds
$10.0 million; (e) certain events of bankruptcy or insolvency with respect to the Company, Parent and the Significant Subsidiaries; and (f) certain judgments or decrees for the
payment of money in excess of $10.0 million; and (g) certain defaults with respect to Guaranties. If an Event of Default occurs and is continuing, the Trustee or the Holders of at least
25% in principal amount of the Securities may declare all the Securities to be due and payable immediately. Certain events of bankruptcy or insolvency are Events of Default which will result in the
Securities being due and payable immediately upon the occurrence of such Events of Default. 



        Securityholders
may not enforce the Indenture or the Securities except as provided in the Indenture. The Trustee may refuse to enforce the Indenture or the Securities unless it receives
indemnity or security satisfactory to it. Subject to certain limitations, Holders of a majority in principal amount of the Securities may direct the Trustee in its exercise of any trust or power. The
Trustee may withhold from Securityholders notice of any continuing Default (except a Default in payment of principal or interest) if it determines that withholding notice is in the interest of the
Holders. 


        17.   Trustee Dealings with the Company


        Subject
to certain limitations imposed by the Act, the Trustee under the Indenture, in its individual or any other capacity, may become the owner or pledgee of Securities and may
otherwise deal with and collect obligations owed to it by the Company or its Affiliates and may otherwise deal with the Company or its Affiliates with the same rights it would have if it were not
Trustee. 


6





 



        18.   No Recourse Against Others


        A
director, officer, employee or stockholder, as such, of the Company or the Trustee shall not have any liability for any obligations of the Company under the Securities or the Indenture
or for any claim based on, in respect of or by reason of such obligations or their creation. By accepting a Security, each Securityholder waives and releases all such liability. The waiver and release
are part of the consideration for the issue of the Securities. 


        19.   Authentication


        This
Security shall not be valid until an authorized signatory of the Trustee (or an authenticating agent) manually signs the certificate of authentication on the other side of this
Security. 


        20.   Abbreviations


        Customary
abbreviations may be used in the name of a Securityholder or an assignee, such as TEN COM (=tenants in common), TEN ENT (=tenants by the entireties), JT TEN (=joint tenants
with rights of survivorship and not as tenants in common), CUST (=custodian), and U/G/M/A (=Uniform Gift to Minors Act). 


        21.   CUSIP Numbers


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


        [22.  Holders' Compliance with Registration Rights Agreement


        Each
Holder of a Security, by acceptance hereof, acknowledges and agrees to the provisions of the Registration Rights Agreement, including the obligations of the Holders with respect to
a registration and the indemnification of the Company to the extent provided therein.]2 


	2
	Insert
if at issuance any obligations survive under the Registration Rights Agreement. 



        23.   Governing Law


        THIS SECURITY SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.


        The
Company will furnish to any Securityholder upon written request and without charge to the Security holder a copy of the Indenture which has in it the text of this Security in larger
type. Requests may be made to: 





Cube
Acquisition Corp.

c/o Trimaran Fund Management, L.L.C.

425 Lexington Avenue

New York, NY 10017

Attention: Steven Flyer 




and




c/o
Bear Stearns Merchant Fund Corp.

383 Madison Avenue

40th Floor

New York, NY 10179

Attention: David King 





7





 







	





 
 

ASSIGNMENT FORM    
    


To
assign this Security, fill in the form below: 


I
or we assign and transfer this Security to 



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


        (Insert
assignee's soc. sec. or tax I.D. No.) 




and
irrevocably appoint                        agent to transfer this Security on the books of the Company. The agent may substitute
another to act for him. 



	

	

Date:	

 	
 	

Your Signature:	

 
	 	
	 	 	

	







Sign
exactly as your name appears on the other side of this Security. 


8





OPTION OF HOLDER TO ELECT PURCHASE  


        If you want to elect to have this Security purchased by the Company pursuant to Section 4.06 or 4.10 of the Indenture, check the box: 


o 


        If
you want to elect to have only part of this Security purchased by the Company pursuant to Section 4.06 or 4.10 of the Indenture, state the amount in principal amount:
$                   



	

Dated:	

 	
 	

Your Signature:	

 
	 	
	 	 	
 (Sign exactly as your name appears on the other side of this Security.)





	Signature Guarantee:	 
	 	
 (Signature must be guaranteed)





Signatures must be guaranteed by an "eligible guarantor institution" meeting the requirements of the Registrar, which requirements include membership or participation in the
Security Transfer Agent Medallion Program ("STAMP") or such other "signature guarantee program" as may be determined by the Registrar in addition to, or in substitution for, STAMP, all in accordance
with the Securities Exchange Act of 1934, as amended. 









QuickLinks



Exhibit 4.3


CROSS-REFERENCE TABLE


TABLE OF CONTENTS


Article 1 Definitions and Incorporation by Reference


Article 2 The Securities

Article 3 Redemption

Article 4 Covenants

Article 5 Successor Company

Article 6 Defaults and Remedies


Article 7 Trustee

Article 8 Discharge of Indenture; Defeasance

Article 9 Amendments

Article 10 Subordination

Article 11 Guaranties

Article 12 Subordination of Guaranties

Article 13 Miscellaneous



RULE 144A/REGULATION S APPENDIX


PROVISIONS RELATING TO INITIAL SECURITIES, PRIVATE EXCHANGE SECURITIES AND EXCHANGE SECURITIES




EXHIBIT 1 to RULE 144A/REGULATION S APPENDIX


[FORM OF FACE OF INITIAL SECURITY]

SCHEDULE OF INCREASES OR DECREASES IN GLOBAL SECURITY




EXHIBIT A


ASSIGNMENT FORM