Exhibit 4.2


 




 









 


AGRILINK FOODS, INC.,


AS ISSUER


 


THE GUARANTORS NAMED HEREIN


 


AND


 


IBJ SCHRODER BANK & TRUST COMPANY


 


AS TRUSTEE


 


$200,000,000


 


11-7/8% SENIOR SUBORDINATED NOTES DUE 2008






 


INDENTURE


Dated as of November 18, 1998


 








 





 

















 


CROSS-REFERENCE TABLE


 


	
  TIA

  	
   

  	
  Indenture

  
	
  Section

  	
   

  	
  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; 12.02

  
	
   

  	
  (b)(1)

  	
   

  	
  7.10

  
	
   

  	
  (c)

  	
   

  	
  N.A.

  
	
  311

  	
  (a)

  	
   

  	
  7.11

  
	
   

  	
  (b)

  	
   

  	
  7.11

  
	
   

  	
  (c)

  	
   

  	
  N.A.

  
	
  312

  	
  (a)

  	
   

  	
  2.05

  
	
   

  	
  (b)

  	
   

  	
  12.03

  
	
   

  	
  (c)

  	
   

  	
  12.03

  
	
  313

  	
  (a)

  	
   

  	
  7.06

  
	
   

  	
  (b)(1)

  	
   

  	
  N.A.

  
	
   

  	
  (b)(2)

  	
   

  	
  7.06

  
	
   

  	
  (c)

  	
   

  	
  7.06; 12.02

  
	
   

  	
  (d)

  	
   

  	
  7.06

  
	
  314

  	
  (a)

  	
   

  	
  4.02; 4.03; 12.02

  
	
   

  	
  (b)

  	
   

  	
  N.A.

  
	
   

  	
  (c)(1)

  	
   

  	
  12.04

  
	
   

  	
  (c)(2)

  	
   

  	
  12.04

  
	
   

  	
  (c)(3)

  	
   

  	
  N.A.

  
	
   

  	
  (d)

  	
   

  	
  N.A.

  
	
   

  	
  (e)

  	
   

  	
  12.05

  
	
   

  	
  (f)

  	
   

  	
  N.A.

  
	
  315

  	
  (a)

  	
   

  	
  7.01(b)

  
	
   

  	
  (b)

  	
   

  	
  7.05; 12.02

  
	
   

  	
  (c)

  	
   

  	
  7.01(a)

  
	
   

  	
  (d)

  	
   

  	
  7.01(c)

  
	
   

  	
  (e)

  	
   

  	
  6.11

  
	
  316

  	
  (a) (last sentence)

  	
   

  	
  2.12

  
	
   

  	
  (a)(1)(A)

  	
   

  	
  6.05

  
	
   

  	
  (a)(1)(B)

  	
   

  	
  6.04

  
	
   

  	
  (a)(2)

  	
   

  	
  N.A.

  
	
   

  	
  (b)

  	
   

  	
  6.07

  
	
   

  	
  (c)

  	
   

  	
  9.04(b)

  
	
  317

  	
  (a)(1)

  	
   

  	
  6.08

  
	
   

  	
  (a)(2)

  	
   

  	
  6.09

  
	
   

  	
  (b)

  	
   

  	
  2.04

  
	
  318

  	
  (a)

  	
   

  	
  12.01

  



 






N.A. means Not Applicable


 


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


 

















 


TABLE OF CONTENTS


 


	
   

  	
   

  	
  Page

  
	
   

  	
   

  	
   

  
	
   

  	
  ARTICLE 1

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  DEFINITIONS AND INCORPORATION BY REFERENCE

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  SECTION 1.01.

  	
  Definitions

  	
  1

  
	
  SECTION 1.02.

  	
  Other Definitions

  	
  24

  
	
  SECTION 1.03.

  	
  Incorporation by Reference
  of TIA

  	
  25

  
	
  SECTION 1.04.

  	
  Rules of Construction

  	
  25

  
	
   

  	
   

  	
   

  
	
   

  	
  ARTICLE 2

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  THE NOTES

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  SECTION 2.01.

  	
  Form and Dating

  	
  26

  
	
  SECTION 2.02.

  	
  Execution and Authentication; Aggregate Principal Amount

  	
  27

  
	
  SECTION 2.03.

  	
  Registrar and Paying Agent

  	
  28

  
	
  SECTION 2.04.

  	
  Paying Agent to Hold Money in Trust

  	
  28

  
	
  SECTION 2.05.

  	
  Holder Lists

  	
  29

  
	
  SECTION 2.06.

  	
  Transfer and Exchange

  	
  29

  
	
  SECTION 2.07.

  	
  Restrictive Legends

  	
  30

  
	
  SECTION 2.08.

  	
  Book-Entry Provisions for Global Notes

  	
  32

  
	
  SECTION 2.09.

  	
  Special Transfer Provisions

  	
  34

  
	
  SECTION 2.10.

  	
  Replacement Notes

  	
  37

  
	
  SECTION 2.11.

  	
  Outstanding Notes

  	
  38

  
	
  SECTION 2.12.

  	
  Treasury Notes

  	
  38

  
	
  SECTION 2.13.

  	
  Temporary Notes

  	
  38

  
	
  SECTION 2.14.

  	
  Cancellation

  	
  39

  
	
  SECTION 2.15.

  	
  Defaulted Interest

  	
  39

  
	
  SECTION 2.16.

  	
  Record Date

  	
  39

  
	
  SECTION 2.17.

  	
  CUSIP and CINS Numbers

  	
  39

  
	
   

  	
   

  	
   

  
	
   

  	
  ARTICLE 3

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  REDEMPTIONS AND OFFERS TO PURCHASE

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  SECTION 3.01.

  	
  Notices to Trustee

  	
  40

  
	
  SECTION 3.02.

  	
  Selection of Notes to Be Redeemed or Purchased

  	
  40

  



 


i

















 


	
   

  	
   

  	
  Page

  
	
   

  	
   

  	
   

  
	
  SECTION 3.03.

  	
  Notice of Redemption

  	
  41

  
	
  SECTION 3.04.

  	
  Effect of Notice of Redemption

  	
  42

  
	
  SECTION 3.05.

  	
  Deposit of Redemption Price

  	
  42

  
	
  SECTION 3.06.

  	
  Notes Redeemed in Part

  	
  42

  
	
  SECTION 3.07.

  	
  Redemption Provisions

  	
  42

  
	
  SECTION 3.08.

  	
  Mandatory Offers

  	
  43

  
	
   

  	
   

  	
   

  
	
   

  	
  ARTICLE 4

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  COVENANTS

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  SECTION 4.01.

  	
  Payment of Notes

  	
  45

  
	
  SECTION 4.02.

  	
  Reports

  	
  46

  
	
  SECTION 4.03.

  	
  Compliance Certificate

  	
  46

  
	
  SECTION 4.04.

  	
  Stay, Extension and Usury Laws

  	
  47

  
	
  SECTION 4.05.

  	
  Limitation on Restricted Payments

  	
  47

  
	
  SECTION 4.06.

  	
  Corporate Existence

  	
  49

  
	
  SECTION 4.07.

  	
  Limitations on Additional Indebtedness

  	
  50

  
	
  SECTION 4.08.

  	
  Limitation on the Issuance of Capital Stock of Restricted Subsidiaries

  	
  50

  
	
  SECTION 4.09.

  	
  Limitations on Layering Debt

  	
  50

  
	
  SECTION 4.10.

  	
  Limitations on Transactions with Affiliates

  	
  51

  
	
  SECTION 4.11.

  	
  Limitations on Liens

  	
  52

  
	
  SECTION 4.12.

  	
  Taxes

  	
  52

  
	
  SECTION 4.13.

  	
  Limitations on Restrictions on Distributions from Restricted
  Subsidiaries

  	
  52

  
	
  SECTION 4.14.

  	
  Maintenance of Offices or Agencies

  	
  53

  
	
  SECTION 4.15.

  	
  Change of Control

  	
  53

  
	
  SECTION 4.16.

  	
  Limitations on Asset Sales

  	
  54

  
	
  SECTION 4.17.

  	
  Additional Note Guarantees

  	
  57

  
	
  SECTION 4.18.

  	
  Payments Pursuant to the Pro-Fac Marketing Agreement; Reinvestments by
  Pro-Fac; Borrowings by Pro-Fac

  	
  57

  
	
  SECTION 4.19.

  	
  Maintenance of Properties; Insurance; Books and Records; Compliance
  with Law

  	
  58

  
	
   

  	
   

  	
   

  
	
   

  	
  ARTICLE 5

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  SUCCESSORS

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  SECTION 5.01.

  	
  Limitations on Mergers and Certain Other Transactions

  	
  59

  
	
  SECTION 5.02.

  	
  Successor Corporation Substituted

  	
  60

  



 


ii

















 


	
   

  	
   

  	
  Page

  
	
   

  	
   

  	
   

  
	
   

  	
  ARTICLE 6

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  DEFAULTS AND REMEDIES

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  SECTION 6.01.

  	
  Events of Default

  	
  61

  
	
  SECTION 6.02.

  	
  Acceleration

  	
  62

  
	
  SECTION 6.03.

  	
  Other Remedies

  	
  63

  
	
  SECTION 6.04.

  	
  Waiver of Past Defaults

  	
  63

  
	
  SECTION 6.05.

  	
  Control by Majority of Holders

  	
  63

  
	
  SECTION 6.06.

  	
  Limitations on Suits by Holders

  	
  63

  
	
  SECTION 6.07.

  	
  Rights of Holders to Receive Payment

  	
  64

  
	
  SECTION 6.08.

  	
  Collection Suit by Trustee

  	
  64

  
	
  SECTION 6.09.

  	
  Trustee May File Proofs of Claim

  	
  64

  
	
  SECTION 6.10.

  	
  Priorities

  	
  64

  
	
  SECTION 6.11.

  	
  Undertaking for Costs

  	
  65

  
	
  SECTION 6.12.

  	
  Willful Default

  	
  65

  
	
   

  	
   

  	
   

  
	
   

  	
  ARTICLE 7

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  TRUSTEE

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  SECTION 7.01.

  	
  Duties of Trustee

  	
  66

  
	
  SECTION 7.02.

  	
  Rights of Trustee

  	
  67

  
	
  SECTION 7.03.

  	
  Individual Rights of Trustee

  	
  67

  
	
  SECTION 7.04.

  	
  Trustee’s Disclaimer

  	
  67

  
	
  SECTION 7.05.

  	
  Notice to Holders of Defaults and Events of Default

  	
  68

  
	
  SECTION 7.06.

  	
  Reports by Trustee to Holders

  	
  68

  
	
  SECTION 7.07.

  	
  Compensation and Indemnity

  	
  68

  
	
  SECTION 7.08.

  	
  Replacement of Trustee

  	
  69

  
	
  SECTION 7.09.

  	
  Successor Trustee by Merger, Etc

  	
  70

  
	
  SECTION 7.10.

  	
  Eligibility; Disqualification

  	
  70

  
	
  SECTION 7.11.

  	
  Preferential Collection of Claims Against Company

  	
  70

  
	
   

  	
   

  	
   

  
	
   

  	
  ARTICLE 8

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  DISCHARGE OF INDENTURE

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  SECTION 8.01.

  	
  Discharge of Liability on Notes; Defeasance

  	
  71

  
	
  SECTION 8.02.

  	
  Conditions to Defeasance

  	
  71

  
	
  SECTION 8.03.

  	
  Application of Trust Money

  	
  73

  
	
  SECTION 8.04.

  	
  Repayment to Company

  	
  73

  



 


iii

















 


	
   

  	
   

  	
  Page

  
	
   

  	
   

  	
   

  
	
  SECTION 8.05.

  	
  Indemnity for Government Securities

  	
  74

  
	
  SECTION 8.06.

  	
  Reinstatement

  	
  74

  
	
   

  	
   

  	
   

  
	
   

  	
  ARTICLE 9

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  AMENDMENTS

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  SECTION 9.01.

  	
  Amendments and Supplements Permitted without Consent of Holders

  	
  74

  
	
  SECTION 9.02.

  	
  Amendments and Supplements Requiring Consent of Holders

  	
  75

  
	
  SECTION 9.03.

  	
  Compliance with TIA

  	
  76

  
	
  SECTION 9.04.

  	
  Revocation and Effect of Consents

  	
  76

  
	
  SECTION 9.05.

  	
  Notation or Exchange of Notes

  	
  77

  
	
  SECTION 9.06.

  	
  Trustee Protected

  	
  77

  
	
   

  	
   

  	
   

  
	
   

  	
  ARTICLE 10

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  SUBORDINATION

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  SECTION 10.01.

  	
  Agreement to Subordinate

  	
  77

  
	
  SECTION 10.02.

  	
  Liquidation; Dissolution; Bankruptcy

  	
  77

  
	
  SECTION 10.03.

  	
  No Payment on Notes in Certain Circumstances

  	
  78

  
	
  SECTION 10.04.

  	
  Acceleration of Notes

  	
  79

  
	
  SECTION 10.05.

  	
  When Distributions Must Be Paid Over

  	
  79

  
	
  SECTION 10.06.

  	
  Notice

  	
  80

  
	
  SECTION 10.07.

  	
  Subrogation

  	
  80

  
	
  SECTION 10.08.

  	
  Relative Rights

  	
  81

  
	
  SECTION 10.09.

  	
  The Company, Guarantors and Holders May Not Impair Subordination

  	
  81

  
	
  SECTION 10.10.

  	
  Distribution or Notice to Representative

  	
  82

  
	
  SECTION 10.11.

  	
  Rights of Trustee and Paying Agent

  	
  83

  
	
  SECTION 10.12.

  	
  Trust Moneys Not Subordinated; Permitted Junior Securities

  	
  83

  
	
  SECTION 10.13.

  	
  Authorization to Effect Subordination

  	
  83

  
	
   

  	
   

  	
   

  
	
   

  	
  ARTICLE 11

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  GUARANTEE

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  SECTION 11.01.

  	
  Guarantee

  	
  84

  
	
  SECTION 11.02.

  	
  Trustee to Include Paying Agent

  	
  85

  
	
  SECTION 11.03.

  	
  Subordination of Guarantee

  	
  85

  



 


iv

















 


	
   

  	
   

  	
  Page

  
	
   

  	
   

  	
   

  
	
  SECTION 11.04.

  	
  Limits of Guarantee

  	
  85

  
	
  SECTION 11.05.

  	
  Severability

  	
  85

  
	
  SECTION 11.06.

  	
  Subrogation

  	
  85

  
	
  SECTION 11.07.

  	
  Execution of Guarantee

  	
  85

  
	
  SECTION 11.08.

  	
  Release of Guarantor

  	
  86

  
	
   

  	
   

  	
   

  
	
   

  	
  ARTICLE 12

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  MISCELLANEOUS

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  SECTION 12.01.

  	
  Trust Indenture Act Controls

  	
  86

  
	
  SECTION 12.02.

  	
  Notices

  	
  87

  
	
  SECTION 12.03.

  	
  Communication by Holders with Other Holders

  	
  87

  
	
  SECTION 12.04.

  	
  Certificate and Opinion As to Conditions Precedent

  	
  88

  
	
  SECTION 12.05.

  	
  Statements Required in Certificate or Opinion

  	
  88

  
	
  SECTION 12.06.

  	
  Rules by Trustee and Agents

  	
  88

  
	
  SECTION 12.07.

  	
  Legal Holidays

  	
  88

  
	
  SECTION 12.08.

  	
  No Recourse Against Others

  	
  88

  
	
  SECTION 12.09.

  	
  Counterparts

  	
  88

  
	
  SECTION 12.10.

  	
  Initial Appointments, Compliance Certificates

  	
  89

  
	
  SECTION 12.11.

  	
  Governing Law

  	
  89

  
	
  SECTION 12.12.

  	
  No Adverse Interpretation of Other Agreements

  	
  89

  
	
  SECTION 12.13.

  	
  Successors

  	
  89

  
	
  SECTION 12.14.

  	
  Severability

  	
  89

  
	
  SECTION 12.15.

  	
  Third Party Beneficiaries

  	
  89

  
	
  SECTION 12.16.

  	
  Table of Contents, Headings, Etc

  	
  89

  
	
   

  	
   

  	
   

  
	
   

  	
  EXHIBITS

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  Exhibit A.

  	
  Form of Initial Note

  	
  A-1

  
	
  Exhibit B.

  	
  Form of Exchange Note

  	
  B-1

  
	
  Exhibit C.

  	
  Form of Certificate To Be Delivered in Connection with Transfers
  to Non-QIB Accredited Investors

  	
  C-1

  
	
  Exhibit D.

  	
  Form of Certificate To Be Delivered in Connection with Transfers
  Pursuant to Regulation S

  	
  D-1

  
	
  Exhibit E.

  	
  Form of Note Guarantee

  	
  E-1

  



 


v

















 


INDENTURE,
dated as of November 18, 1998, is by and among Agrilink Foods, Inc.,
a New York corporation, as issuer (as further defined below, the “COMPANY”),
the Guarantors (as defined below) and IBJ Schroder Bank & Trust
Company, a New York banking corporation, as trustee (the “TRUSTEE”).


 


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


 


ARTICLE 1


 


DEFINITIONS AND INCORPORATION BY REFERENCE


 


SECTION 1.01.              Definitions.


 


“ACQUIRED
INDEBTEDNESS” means (a) with respect to any Person that becomes a
Restricted Subsidiary after the date of this Indenture, Indebtedness of such
Person and its Subsidiaries existing at the time such Person becomes a
Restricted Subsidiary that was not incurred in connection with, or in contemplation
of, such Person becoming a Restricted Subsidiary and (b) with respect to
the Company or any of its Restricted Subsidiaries, any Indebtedness of a Person
(other than the Company or a Restricted Subsidiary) existing at the time such
Person is merged with or into the Company or a Restricted Subsidiary, or
Indebtedness assumed by the Company or any of its Restricted Subsidiaries in
connection with the acquisition of an asset or assets from another Person,
which Indebtedness was not, in any case, incurred by such other Person in
connection with, or in contemplation of, such merger or acquisition. For
purposes of the Pro-Fac Merger only, Indebtedness of Pro-Fac existing at the
time the Company is merged with and into Pro-Fac, but not incurred in connection
with, or in contemplation of, the Pro-Fac Merger, shall be deemed incurred for
purposes of this Indenture at the time of the consummation of the Pro-Fac
Merger, but the incurrence thereof shall not require compliance with Section 4.07(a).


 


“ACQUISITION”
means the acquisition by the Company of Dean Foods Vegetable Company and the
transfer by the Company of its aseptic business, in each case on September 23,
1998 pursuant to and in accordance with terms of the Stock Purchase Agreement
dated as of July 24, 1998 by and between Dean Foods Company and the
Company and the Asset Transfer Agreement dated as of July 24, 1998 by and
between Dean Foods Company and the Company.


 


“ADDITIONAL
INTEREST” has the meaning set forth in the Registration Rights Agreement.


 


“AFFILIATE”
of any specified Person means (i) any other Person directly or indirectly
controlling or controlled by or under direct or indirect common control with
such specified Person and (ii) with respect to Pro-Fac and the Company,
any member of Pro-Fac that is


 














 


a director of Pro-Fac or that
has beneficial ownership of more than 1% of the outstanding voting securities
of Pro-Fac. For purposes of this definition, “control” (including, with
correlative meanings, the terms “controlling,” “controlled by” and under “common
control with”), as used with respect to any Person, shall mean the possession,
directly or indirectly, of the power to direct or cause the direction of the
management or policies of such Person, whether through the ownership of voting
securities, by agreement or otherwise; provided, however, that beneficial
ownership of 10% or more of the voting securities of a Person shall be deemed
to be control.


 


“AGENT”
means any Registrar, Paying Agent, or co-registrar appointed pursuant to Section 2.03.


 


“ASSET
SALE” means any sale, issuance, conveyance, transfer, lease, assignment or
other disposition to any Person other than the Company or any of its Restricted
Subsidiaries (including, without limitation, by means of a Sale and Leaseback
Transaction or a merger or consolidation) (collectively, for purposes of this
definition, a “transfer”), directly or indirectly, in one transaction or a
series of related transactions, of (a) any Capital Stock of any Restricted
Subsidiary or (b) any other properties or assets of the Company or any of
its Restricted Subsidiaries other than transfers of cash, Cash Equivalents,
accounts receivable, inventory or other properties or assets in the ordinary
course of business. For the purposes of this definition, the term “Asset Sale”
shall not include any of the following: (i) any transfer of properties or
assets (including Capital Stock) that is governed by, and made in accordance
with, the provisions of Article 5; (ii) any transfer of properties or
assets to an Unrestricted Subsidiary, if permitted under Section 4.05; (iii) sales
of damaged, worn-out or obsolete equipment or assets that, in the Company’s
reasonable judgment, are either no longer used or useful in the business of the
Company or its Subsidiaries, provided that the proceeds thereof are used to
purchase replacement or similar assets for use in the business of the Company
and its Subsidiaries; and (iv) any transfer that, but for this clause
(iv), would be an Asset Sale, if after giving effect to such transfer, the
aggregate Fair Market Value of the properties or assets transferred in such
transaction or any such series of related transactions does not exceed
$500,000.


 


“ATTRIBUTABLE
INDEBTEDNESS,” when used with respect to any Sale and Leaseback Transaction,
means, as at the time of determination, the present value (discounted at a rate
equivalent to the Company’s then-current weighted average cost of funds for
borrowed money as at the time of determination, compounded on a semi-annual
basis) of the total obligations of the lessee for rental payments during the
remaining term of the lease included in any such Sale and Leaseback
Transaction.


 


“BANKRUPTCY
CODE” means Title 11 of the United States Code, as amended.


 


2

















 


“BANKRUPTCY
LAW” means the Bankruptcy Code or any similar federal or state law for the
relief of debtors.


 


“BOARD
OF DIRECTORS” means, with respect to any Person, the Board of Directors of such
Person, or any authorized committee of the Board of Directors of such Person.


 


“BOARD
RESOLUTION” means a duly adopted resolution of the Board of Directors of the
Company or any Guarantor.


 


“BUSINESS
DAY” means any day other than a Saturday, a Sunday or a day on which banking
institutions in the City of New York are authorized by law, regulation or
executive order to remain closed.


 


“CAPITAL
STOCK” of any Person means (i) any and all shares or other equity
interests (including without limitation common stock, preferred stock and
partnership interests) in such Person and (ii) all rights to purchase,
warrants or options (whether or not currently exercisable), participations or
other equivalents of or interests in (however designated) such shares or other
interests in such Person.


 


“CAPITALIZED
LEASE OBLIGATIONS” of any Person means the obligations of such Person to pay
rent or other amounts under a lease that is required to be capitalized for
financial reporting purposes in accordance with GAAP, and the amount of such
obligation shall be the capitalized amount thereof determined in accordance
with GAAP.


 


“CASH
EQUIVALENTS” means (i) marketable obligations with a maturity of 360 days
or less issued or directly and fully guaranteed or insured by the United States
of America or any agency or instrumentality thereof (provided that the full
faith and credit of the United States of America is pledged in support
thereof); (ii) U.S. dollar denominated time deposits and certificates of
deposit of any financial institution (a) that is a member of the Federal
Reserve System having combined capital and surplus and undivided profits of not
less than $500 million or (b) whose short-term commercial paper rating or
that of its parent company is at least A-1 or the equivalent thereof from
S&P or P-1 or the equivalent thereof from Moody’s (any such bank, an “APPROVED
BANK”), in each case with a maturity of 360 days or less from the date of
acquisition; (iii) commercial paper issued by any Approved Bank or by the
parent company of any Approved Bank and commercial paper issued by, or
guaranteed by, any industrial or financial company with a short-term commercial
paper rating of at least A-1 or the equivalent thereof by S&P or at least
P-1 or the equivalent thereof by Moody’s, or guaranteed by any industrial
company with a long term unsecured debt rating of at least A or A2, or the
equivalent of each thereof, from S&P or Moody’s, as the case may be, and in
each case maturing no more than 360 days from the date of acquisition; (iv) repurchase
obligations with a term of not more than seven days for underlying securities
of the types described in clause (i) above entered into with any
commercial bank meeting the specifications of clause (ii)(a)


 


3

















 


above; and (v) investments
in money market or other mutual funds substantially all of whose assets
comprise securities of the types described in clauses (i) through (iv) above.


 


“CEDEL”
means Cedel Bank, Societe anonyme.


 


“CHANGE
OF CONTROL” means the occurrence of any of the following: (i) the sale,
lease or transfer, in one or a series of related transactions, of all or
substantially all of Pro-Fac’s or the Company’s assets to any Person or group
(as such term is used in Section 13(d)(3) of the Exchange Act);
provided, however, that the Pro-Fac Merger shall not constitute a Change of
Control under this clause (i); (ii) the consummation of any transaction
the result of which is that any Person or group (as such term is used in Section 13(d)(3) of
the Exchange Act) (other than Pro-Fac in the case of clause (y)) owns, directly
or indirectly, (A) more than 50% of the voting power of the voting stock
of either (x) Pro-Fac or (y) the Company or (B) more than 30% of
the voting power of the voting stock of the Company if Pro-Fac owns, directly
or indirectly, a lesser percentage than such Person or group of the voting
power of the voting stock of the Company; (iii) the first date on which
any Person or group (as defined above) shall have elected, or caused to be
elected, a sufficient number of its or their nominees to the Board of Directors
of Pro-Fac or the Company such that the nominees so elected (regardless of when
elected) shall collectively constitute a majority of the Board of Directors of
Pro-Fac or the Company, as the case may be; or (iv) (A) prior to
consummation of the Pro-Fac Merger, for a period of 120 consecutive days, the
number of Disinterested Directors on the Board of Directors of the Company
being less than the greater of (x) two and (y) the number of
directors of the Company who are Pro-Fac Directors and (B) on and after
consummation of the Pro-Fac Merger, for a period of 120 consecutive days, the
number of Disinterested Directors on the Board of Directors of Pro-Fac, as
successor corporation to the Company, being less than two. For purposes of this
definition, any transfer of an equity interest of an entity that was formed for
the purpose of acquiring voting stock of Pro-Fac or the Company shall be deemed
to be a transfer of such portion of the voting stock owned by such entity as
corresponds to the portion of the equity of such entity that has been so
transferred.


 


“COMMERCIAL
MARKET VALUE” means Commercial Market Value determined in accordance with the
Pro-Fac Marketing Agreement (as in effect on the Issue Date and whether or not
in effect at the time of determination).


 


“COMPANY”
means Agrilink Foods, Inc., a New York corporation, unless and until a
subsequent successor replaces it in accordance with Article 5 and
thereafter means such successor.


 


“CONSOLIDATED
AMORTIZATION EXPENSE” for any period means the amortization expense of the
Company and its Restricted Subsidiaries for such period (to the extent included
in the computation of Consolidated Net Income), determined on a consolidated
basis in accordance with GAAP.


 


4

















 


“CONSOLIDATED
DEPRECIATION EXPENSE” for any period means the depreciation expense of the
Company and its Restricted Subsidiaries for such period (to the extent included
in the computation of Consolidated Net Income), determined on a consolidated
basis in accordance with GAAP.


 


“CONSOLIDATED
INCOME TAX EXPENSE” for any period means the provision for taxes based on
income and profits of the Company and its Restricted Subsidiaries to the extent
such income or profits were included in computing Consolidated Net Income for
such period.


 


“CONSOLIDATED
INTEREST COVERAGE RATIO” means, with respect to any determination date, the
ratio of (a) EBITDA for the four full fiscal quarters immediately
preceding the determination date (for any determination, the “REFERENCE PERIOD”),
to (b) Consolidated Interest Expense for such Reference Period. In making
such computations, (i) EBITDA and Consolidated Interest Expense shall be
calculated on a pro forma basis assuming that (A) the Indebtedness to be
incurred or the Disqualified Capital Stock to be issued (and all other
Indebtedness incurred or Disqualified Capital Stock issued after the first day
of such Reference Period referred to in Section 4.07, through and
including the date of determination), and (if applicable) the application of
the net proceeds therefrom (and from any other such Indebtedness or
Disqualified Capital Stock), including the refinancing of other Indebtedness,
had been incurred on the first day of such Reference Period and, in the case of
Acquired Indebtedness, on the assumption that the related transaction (whether
by means of purchase, merger or otherwise) also had occurred on such date with
EBIDTA (including any pro forma expense and cost reductions calculated on a
basis consistent with Regulation S-X under the Securities Act) attributable to
the assets which are the subject of such acquisition being included in such pro
forma calculation and (B) any acquisition or disposition by the Company or
any Restricted Subsidiary of any properties or assets outside the ordinary
course of business or any repayment of any principal amount of any Indebtedness
of the Company or any Restricted Subsidiary prior to the stated maturity
thereof, in either case since the first day of such Reference Period through
and including the date of determination, had been consummated on such first day
of such Reference Period; (ii) the Consolidated Interest Expense
attributable to interest on any Indebtedness required to be computed on a pro
forma basis in accordance with Section 4.07 and (A) bearing a
floating interest rate shall be computed as if the rate in effect on the date
of computation had been the applicable rate for the entire period and (B) which
was not outstanding during the period for which the computation is being made
but which bears, at the option of the Company, a fixed or floating rate of
interest, shall be computed by applying, at the option of the Company, either
the fixed or floating rate; (iii) the Consolidated Interest Expense
attributable to interest on any Indebtedness under a revolving credit facility
required to be computed on a pro forma basis in accordance with Section 4.07
shall be computed based upon the average daily balance of such Indebtedness
during the applicable period, provided that such average daily balance shall be
reduced by the amount of any repayment of Indebtedness under a revolving credit
facility during the applicable period, which repayment permanently


 


5

















 


reduced the commitments or
amounts available to be reborrowed under such facility; (iv) notwithstanding
the foregoing clauses (ii) and (iii), interest on Indebtedness determined
on a floating rate basis, to the extent such interest is covered by agreements
relating to Hedging Obligations, shall be deemed to have accrued at the rate
per annum resulting after giving effect to the operation of such agreements;
and (v) if after the first day of the applicable Reference Period and
before the date of determination, the Company has permanently retired any
Indebtedness out of the net proceeds of the issuance and sale of shares of
Capital Stock (other than Disqualified Capital Stock) of the Company within 60
days of such issuance and sale, Consolidated Interest Expense shall be
calculated on a pro forma basis as if such Indebtedness had been retired on the
first day of such period.


 


“CONSOLIDATED
INTEREST EXPENSE” for any period means the sum, without duplication, of the
total interest expense of the Company and its consolidated Restricted
Subsidiaries for such period, determined on a consolidated basis in accordance
with GAAP and including, without limitation (i) imputed interest on
Capitalized Lease Obligations and Attributable Indebtedness; (ii) commissions,
discounts and other fees and charges owed with respect to letters of credit
securing financial obligations and bankers’ acceptance financing; (iii) the
net costs associated with Hedging Obligations; (iv) amortization of other
financing fees and expenses; (v) the interest portion of any deferred
payment obligations; (vi) amortization of debt discount or premium, if
any; (vii) all other non-cash interest expense; (viii) capitalized
interest; (ix) all cash dividend payments (and non-cash dividend payments
in the case of a Restricted Subsidiary) on any series of preferred stock of the
Company or any Restricted Subsidiary; (x) all interest payable with
respect to discontinued operations; and (xi) all interest on any Indebtedness
of any other Person guaranteed by the Company or any Restricted Subsidiary to
the extent paid by the Company or such Restricted Subsidiary.


 


“CONSOLIDATED
NET INCOME” for any period means the net income (or loss) of the Company and
its consolidated Restricted Subsidiaries for such period determined on a
consolidated basis in accordance with GAAP; provided that there shall be
excluded from such net income (to the extent otherwise included therein),
without duplication (i) the net income (or loss) of any Person (other than
a Restricted Subsidiary) in which any Person other than the Company and its
Restricted Subsidiaries has an ownership interest, except to the extent that
any such income has actually been received by the Company and its Restricted
Subsidiaries (unless and to the extent such Restricted Subsidiary is subject to
clause (iii) below) in the form of cash dividends or distributions during
such period; (ii) except to the extent includable in the consolidated net
income of the Company pursuant to the foregoing clause (i), the net income (or
loss) of any Person that accrued prior to the date that (a) such Person
becomes a Restricted Subsidiary or is merged into or consolidated with the
Company or any Restricted Subsidiary or (b) the assets of such Person are
acquired by the Company or any Restricted Subsidiary; (iii) the net income
of any Restricted Subsidiary during such period to the extent that the
declaration or payment of dividends or similar distributions by such Restricted
Subsidiary


 


6

















 


of that income (a) is
not permitted by operation of the terms of its charter or any agreement,
instrument, judgment, decree, order, statute, rule or governmental
regulation applicable to that Subsidiary during such period or (b) would
be subject to any taxes payable on such dividend or distribution; (iv) any
gain (or, only in the case of a determination of Consolidated Net Income as
used in EBITDA, any loss), together with any related provisions for taxes on
any such gain (or, if applicable, the tax effects of such loss), realized
during such period by the Company or any Restricted Subsidiary upon (a) the
acquisition of any securities, or the extinguishment of any Indebtedness, of
the Company or any Restricted Subsidiary or (b) any Asset Sale by the
Company or any of its Restricted Subsidiaries; provided, however, that there
shall be excluded from Consolidated Net Income for all purposes any loss
realized by the Company or any Restricted Subsidiary upon the acquisition of
any securities, or the extinguishment of any Indebtedness, of the Company or any
Restricted Subsidiary, or the write-off of deferred financing costs, in
connection with the Acquisition and all refinancings of Indebtedness
consummated in connection therewith; (v) any extraordinary gain (or, only
in the case of a determination of Consolidated Net Income as used in EBITDA,
any extraordinary loss), together with any related provision for taxes on any
such extraordinary gain (or, if applicable, the tax effects of such
extraordinary loss), realized by the Company or any Restricted Subsidiary
during such period; (vi) any restructuring charges recognized during such
period in an amount not to exceed $7.0 million in the aggregate after the Issue
Date so long as such restructuring charges are recognized within 24 months
after the Issue Date; and (vii) in the case of a successor to the Company
by consolidation, merger or transfer of its assets, any earnings of the
successor prior to such merger, consolidation or transfer of assets; and
provided, further, that any gain in excess of return of capital referred to in
clauses (iv) and (v) above that relates to a Restricted Investment
and which is received in cash by the Company or a Restricted Subsidiary during
such period shall be included in the Consolidated Net Income of the Company.


 


“CONSOLIDATED
NET WORTH” means, with respect to any Person as of any date, the consolidated
equity of the common stockholders of such Person and its consolidated
Subsidiaries as determined in accordance with GAAP as of such date, less all
write-ups (other than write-ups resulting from foreign currency translations
and write-ups of tangible assets of a going concern business made within twelve
months after the acquisition of such business) subsequent to the Issue Date in
the book value of any asset owned by such Person or a Subsidiary of such
Person.


 


“CORPORATE
TRUST OFFICE” shall be at the address of the Trustee specified in Section 12.02
or such other address as the Trustee may give notice to the Company.


 


“COVERAGE
RATIO INCURRENCE CONDITION” would be met at any specified time only if the
Company (or its Successor, as the case may be) would be able to incur $1.00 of
additional Indebtedness at such specified time pursuant to the Consolidated
Interest Coverage Ratio test set forth in Section 4.07.


 


7

















 


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


 


“DEFAULT”
means any event, act or condition that is, or after notice or the passage of
time or both would be, an Event of Default.


 


“DEPOSITORY”
means, with respect to the Notes issuable or issued in whole or in part in
global form, The Depository Trust Company, until a successor shall have been
appointed and becomes such Depository, and, thereafter, “Depository” shall mean
or include such successor.


 


“DESIGNATED
SENIOR INDEBTEDNESS” means (i) Indebtedness under the New Credit Facility
(whether incurred pursuant to the definition of Permitted Indebtedness or
pursuant to the provisions of Section 4.07) and (ii) any other
Indebtedness constituting Senior Indebtedness that at the date of determination
has an aggregate principal amount outstanding of at least $25.0 million and
that is specifically designated by the Company, in the instrument creating or
evidencing such Senior Indebtedness or in an Officers’ Certificate delivered to
the Trustee, as “Designated Senior Indebtedness.”


 


“DISINTERESTED
DIRECTORS” means (i) prior to the consummation of the Pro-Fac Merger,
directors of the Company who are not employees, shareholders (at the time of
becoming directors) or otherwise Affiliates (other than by reason of being a
director of the Company) of either Pro-Fac or the Company and (ii) on and
after consummation of the Pro-Fac Merger, directors of Pro-Fac, as the
successor corporation to the Company, who are not employees, shareholders (at
the time of becoming directors) or otherwise Affiliates (other than by reason
of being a director of Pro-Fac) of Pro-Fac.


 


“DISQUALIFIED
CAPITAL STOCK” means any Capital Stock of a Person or any of its Subsidiaries
that, by its terms, by the terms of any agreement related thereto or by the
terms of any security into which it is convertible, puttable or exchangeable,
is, or upon the happening of any event or the passage of time would be, required
to be redeemed or repurchased by such Person or any of its Subsidiaries,
whether or not at the option of the holder thereof, or matures or is
mandatorily redeemable, pursuant to a sinking fund obligation or otherwise, in
whole or in part, on or prior to the final maturity date of the Notes;
provided, however, that in the case of Pro-Fac only, Disqualified Capital Stock
shall not include (x) retained earnings allocated to members of Pro-Fac, (y) common
stock of Pro-Fac issued to members of Pro-Fac and (z) Class B
Preferred Stock (having substantially the same terms as in effect on the Issue
Date) of Pro-Fac issued to officers, directors or employees of Pro-Fac.


 


“DOLLARS”
and “$” means lawful money of the United States of America.


 


8

















 


“EBITDA”
for any period means without duplication, the sum of the amounts for such
period of (i) Consolidated Net Income plus (ii) in each case to the
extent deducted in determining Consolidated Net Income for such period (and without
duplication), (A) Consolidated Income Tax Expense, (B) Consolidated
Amortization Expense (but only to the extent not included in Consolidated
Interest Expense), (C) Consolidated Depreciation Expense, (D) Consolidated
Interest Expense, (E) all other non-cash items reducing the Consolidated
Net Income (excluding any such non-cash charge that results in an accrual of a
reserve for cash charges in any future period) for such period, in each case
determined on a consolidated basis in accordance with GAAP, plus (iii) in
the case of the Company, for any period that includes a fiscal quarter
beginning on or prior to consummation of the Pro-Fac Merger, the Pro-Fac share
of earnings (loss) as determined in accordance with the Pro-Fac Marketing
Agreement for such period through the date of consummation of the Pro-Fac
Merger, minus (iv) the aggregate amount of all non-cash items, determined
on a consolidated basis, to the extent such items increased Consolidated Net
Income for such period.


 


“EQUITY
OFFERING” means an underwritten primary offering of Capital Stock (other than
Disqualified Capital Stock) of Pro-Fac (to the extent that the net cash
proceeds thereof are contributed to the equity capital of the Company (other
than as Disqualified Capital Stock)) or the Company pursuant to a registration
statement filed with the Commission in accordance with the Securities Act or
pursuant to a private placement pursuant to an available exemption from
registration under the Securities Act to the extent, in the case of such
private placement, such Capital Stock is not sold to Pro-Fac, the Company, any
Subsidiary or any Affiliate (without giving effect to clause (ii) in the
definition thereof) thereof.


 


“EUROCLEAR”
means Morgan Guaranty Trust Company of New York, Brussels Office, as operator
of the Euroclear System.


 


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


 


“EXCHANGE
NOTES” means the 11-7/8% Senior Subordinated Notes due 2008 of the Company to
be offered to Holders in exchange for Notes pursuant to the Exchange Offer or
otherwise pursuant to a Registration of Notes (the terms of which are identical
to the Initial Notes except that the Exchange Notes shall be registered under
the Securities Act and shall not contain the Private Placement Legend or provide
for the payment of Additional Interest) and unconditionally guaranteed on a
joint and several basis by the Guarantors.


 


“EXCHANGE
OFFER” means the offer that may be made by the Company and the Guarantors
pursuant to the Registration Rights Agreement to exchange Exchange Notes for
the Notes.


 


“EXISTING
INDEBTEDNESS” means all of the Indebtedness of the Company and its Restricted
Subsidiaries that is outstanding on the Issue Date and any additional
promissory


 


9

















 


notes issued in accordance
with the terms of the Subordinated Promissory Note as in effect on the Issue
Date.


 


“FAIR
MARKET VALUE” of any asset or item means the fair market value of such asset or
item as determined in good faith by the Board of Directors and evidenced by a
Board Resolution.


 


“FOREIGN
SUBSIDIARY” means any Subsidiary of the Company that is not incorporated or
organized in the United States or in any State thereof or the District of
Columbia.


 


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


 


“GOVERNMENT
SECURITIES” means direct obligations of, or obligations guaranteed by, the
United States of America for the payment of which guarantee or obligations the
full faith and credit of the United States of America is pledged.


 


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


 


“GUARANTORS”
means each of the Subsidiary Guarantors and Pro-Fac, and “GUARANTOR” means any
one of the foregoing.


 


“HEDGING
OBLIGATIONS” of any Person means the obligations of such Person pursuant to (i) any
interest rate swap agreement, interest rate collar agreement or other similar
agreement or arrangement designed to protect such Person against fluctuations
in interest rates, (ii) agreements or arrangements designed to protect
such Person against fluctuations in foreign currency exchange rates in the
conduct of its operations, or (iii) any forward contract, commodity swap
agreement, commodity option agreement or other similar agreement or arrangement
designed to protect such Person against fluctuations in commodity prices, in
each case, entered into in the ordinary course of business for bona fide
hedging purposes and not for the purpose of speculation.


 


“HOLDER”
means a Person in whose name a Note is registered on the Registrar’s books.


 


10

















 


“IAI
GLOBAL NOTE” means a permanent global Note in registered form representing the
aggregate principal amount of Notes transferred to Institutional Accredited
Investors.


 


“IMMATERIAL
SUBSIDIARY” means any Restricted Subsidiary of the Company that has, together
with all other Immaterial Subsidiaries in the aggregate, assets, revenues and
net income comprising less than 2.00% of the assets, revenues and net income of
the Company and its Subsidiaries taken as a whole.


 


“INCUR”
means, with respect to any Indebtedness or Obligation, incur, create, issue,
assume, Guarantee or otherwise become directly or indirectly liable,
contingently or otherwise, with respect to such Indebtedness or Obligation;
provided that (i) the Indebtedness of a Person existing at the time such
Person became a Restricted Subsidiary shall be deemed to have been incurred by
such Restricted Subsidiary and (ii) neither the accrual of interest nor
the accretion of accreted value shall be deemed to be an incurrence of
Indebtedness.


 


“INITIAL
NOTES” means the 11-7/8% Senior Subordinated Notes due 2008 of the Company
issued on the Issue Date and authenticated and delivered under this Indenture
pursuant to Section 2.02 of this Indenture.


 


“INDEBTEDNESS”
of any Person at any date means, without duplication: (i) all liabilities,
contingent or otherwise, of such Person for borrowed money (whether or not the
recourse of the lender is to the whole of the assets of such Person or only to
a portion thereof); (ii) all obligations of such Person evidenced by
bonds, debentures, notes or other similar instruments; (iii) all
obligations of such Person in respect of letters of credit or other similar
instruments (or reimbursement obligations with respect thereto); (iv) all
obligations of such Person to pay the deferred and unpaid purchase price of
property or services, except trade payables and accrued expenses incurred by
such Person in the ordinary course of business in connection with obtaining
goods, materials or services, which payable is not overdue by more than 60 days
according to the original terms of sale unless such payable is being contested
in good faith; (v) the maximum fixed redemption or repurchase price of all
Disqualified Capital Stock of such Person; (vi) all Capitalized Lease
Obligations of such Person; (vii) all Indebtedness of others secured by a
Lien on any asset of such Person, whether or not such Indebtedness is assumed
by such Person; (viii) all Indebtedness of others guaranteed by such
Person to the extent of such Guarantee; provided that Indebtedness of the
Company or its Restricted Subsidiaries that is guaranteed by the Company or the
Company’s Restricted Subsidiaries shall only be counted once in the calculation
of the amount of Indebtedness of the Company and its Restricted Subsidiaries on
a consolidated basis; (ix) all Attributable Indebtedness; and (x) to
the extent not otherwise included in this definition, Hedging Obligations of
such Person. The amount of Indebtedness of any Person at any date shall be the
outstanding balance at such date of all unconditional obligations as described
above, the maximum liability of such Person for any such contingent obligations
at such date and, in the case of clause (vii), the


 


11














 


lesser of (A) the Fair
Market Value of any asset subject to a Lien securing the Indebtedness of others
on the date that the Lien attaches and (B) the amount of the Indebtedness
secured. For purposes of the preceding sentence, the “maximum fixed redemption
or repurchase price” of any Disqualified Capital Stock that does not have a
fixed redemption or repurchase price shall be calculated in accordance with the
terms of such Disqualified Capital Stock as if such Disqualified Capital Stock
were purchased or redeemed on any date on which Indebtedness shall be required
to be determined pursuant to this Indenture, and if such price is based upon,
or measured by, the fair market value of such Disqualified Capital Stock (or
any equity security for which it may be exchanged or converted), such fair
market value shall be determined in good faith by the Board of Directors of
such Person, which determination shall be evidenced by a Board Resolution.


 


“INDENTURE”
means this Indenture, as amended or supplemented from time to time in
accordance with its terms.


 


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


 


“INITIAL
PURCHASERS” means each of Warburg Dillon Read LLC and Nesbitt Burns Securities
Inc.


 


“INSTITUTIONAL
ACCREDITED INVESTOR” means an institution that is an “accredited investor” as
that term is defined in Rule 501(a)(1), (2), (3) or (7) under
the Securities Act.


 


“INTEREST
PAYMENT DATE” shall have the meaning set forth in the Notes.


 


“INVESTMENTS”
of any Person means (i) all investments by such Person in any other Person
in the form of loans, advances or capital contributions (excluding commission,
travel and similar advances to officers and employees made in the ordinary
course of business) or similar credit extensions constituting Indebtedness of
such Person, and any Guarantee of Indebtedness of any other Person, (ii) all
purchases (or other acquisitions for consideration) by such Person of
Indebtedness, Capital Stock or other securities of any other Person and (iii) all
other items that would be classified as investments (including without
limitation purchases of assets outside the ordinary course of business) on a
balance sheet of such Person prepared in accordance with GAAP.


 


“ISSUE
DATE” means November 18, 1998, the date the Initial Notes are originally
issued.


 


12

















 


“LIEN”
means, with respect to any asset or property, any mortgage, deed of trust, lien
(statutory or other), pledge, lease, easement, restriction, covenant, charge,
security interest or other encumbrance of any kind or nature in respect of such
asset or property, whether or not filed, recorded or otherwise perfected under
applicable law, including without limitation any conditional sale or other
title retention agreement, and any lease in the nature thereof, any option or
other agreement to sell, and any filing of, or agreement to give, any financing
statement under the Uniform Commercial Code (or equivalent statutes) of any
jurisdiction (other than cautionary filings in respect of operating leases).


 


“MATURITY
DATE” means November 1, 2008.


 


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


 


“NET
AVAILABLE PROCEEDS” means, with respect to any Asset Sale, the proceeds thereof
in the form of cash or Cash Equivalents including payments in respect of
deferred payment obligations when received in the form of cash or Cash
Equivalents (except to the extent that such obligations are financed or sold
with recourse to the Company or any Restricted Subsidiary), net of (i) brokerage
commissions and other fees and expenses (including fees and expenses of legal
counsel, accountants and investment banks) related to such Asset Sale, (ii) provisions
for all taxes payable as a result of such Asset Sale (after taking into account
any available tax credits or deductions and any tax sharing arrangements), (iii) amounts
required to be paid to any Person (other than the Company or any Restricted
Subsidiary) owning a beneficial interest in the properties or assets subject to
the Asset Sale or having a Lien therein and (iv) appropriate amounts to be
provided by the Company or any Restricted Subsidiary, as the case may be, as a
reserve required in accordance with GAAP against any liabilities associated
with such Asset Sale and retained by the Company or any Restricted Subsidiary,
as the case may be, after such Asset Sale, including, without limitation,
pensions and other postemployment benefit liabilities, liabilities related to
environmental matters and liabilities under any indemnification obligations
associated with such Asset Sale, all as reflected in an Officers’ Certificate
delivered to the Trustee; provided, however, that any amounts remaining after
adjustments, revaluations or liquidations of such reserves shall constitute Net
Available Proceeds.


 


“NEW
CREDIT FACILITY” means the Credit Agreement dated as of September 23, 1998
by and among the Company, Pro-Fac, the other guarantors party thereto, Harris
Trust and Savings Bank, individually and as Administrative Agent, Bank of
Montreal, Chicago Branch, individually and as a Syndication Agent, and the
other lenders party thereto, together with any guarantees, security agreements
or other collateral documents and any other related documents, as any of the
foregoing may be subsequently amended, restated, refinanced, or replaced from
time to time, and shall include agreements in respect of Hedging Obligations
designed to protect against fluctuations in interest rates and entered into
with respect to loans thereunder.


 


13

















 


“NON-RECOURSE
PURCHASE MONEY INDEBTEDNESS” means Indebtedness of the Company or any of its
Restricted Subsidiaries incurred (a) to finance the purchase of any assets
of the Company or any of its Restricted Subsidiaries within 90 days of such
purchase, (b) to the extent the amount of Indebtedness thereunder does not
exceed 100% of the purchase cost of such assets, (c) to the extent the
purchase cost of such assets is or should be included in “additions to
property, plant and equipment” in accordance with GAAP, and (d) to the
extent that such Indebtedness is non-recourse to the Company or any of its
Restricted Subsidiaries or any of their respective assets other than the assets
so purchased.


 


“NON-U.S.
PERSON” means a person that is not a U.S. person, as defined in Regulation S.


 


“NOTES”
means the Initial Notes and the Exchange Notes treated as a single class of
securities, as amended or supplemented from time to time in accordance with the
terms hereof, that are issued pursuant to this Indenture.


 


“OBLIGATION”
means any principal, interest (including, in the case of Senior Indebtedness,
interest accruing subsequent to the filing of a petition in bankruptcy or
insolvency at the rate specified in the document relating to such Senior
Indebtedness, whether or not such interest is an allowed claim permitted to be
enforced against the obligor under applicable law), penalties, fees,
indemnification, reimbursements, costs, expenses, damages and other liabilities
payable under the documentation governing any Indebtedness.


 


“OFFER”
means a Change of Control Offer or a Net Proceeds Offer, as the context
requires.


 


“OFFER
PERIOD” means the Change of Control Offer Period or the Net Proceeds Offer
Period, as the context requires.


 


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


 


“OFFICERS’
CERTIFICATE” means a certificate signed by any two Officers.


 


“OLD
NOTES” means the Company’s 12-1/4% Senior Subordinated Notes due 2005.


 


“144A
GLOBAL NOTE” means a permanent global Note in registered form representing the
aggregate principal amount of Notes sold in reliance on Rule 144A under
the Securities Act.


 


14

















 


“OPINION
OF COUNSEL” means a written opinion from legal counsel (such counsel may be an
employee of or counsel to the Company or the Trustee) that complies with the
requirements of this Indenture.


 


“PAYMENT
RESTRICTION” with respect to a Subsidiary of any Person, means any encumbrance,
restriction of limitation, whether by operation of the terms of its charter or
by reason of any agreement, instrument, judgment, decree, order, statute, rule or
governmental regulation, on the ability of (i) such Subsidiary to (a) pay
dividends or make other distributions on its Capital Stock or make payments on
any obligation, liability or Indebtedness owed to such Person or any other
Subsidiary of such Person, (b) make loans or advances to such Person or
any other Subsidiary or such Person, (c) Guarantee any Indebtedness of
such Person or any other Subsidiary of such Person or (d) transfer any of
its properties or assets to such Person or any other Subsidiary of such Person
(other than customary restrictions on transfers of property subject to a Lien
permitted under the Indenture) or (ii) such Person or any other Subsidiary
of such Person to receive or retain any such dividends, distributions or
payments, loans or advances, guarantee, or transfer of properties or assets.


 


“PERMITTED
INDEBTEDNESS” means any of the following:


 


(i) Indebtedness of the Company and the related guarantees of the  Subsidiary
Guarantors under the New Credit Facility in an aggregate  principal amount
at any time outstanding not to exceed (a) under the  Term Loan
Facilities, $455.0 million, less any required permanent  repayments
actually made thereunder (excluding any such repayment to the  extent
refinanced and replaced at the time of payment), and (b) under  the Revolving
Loan Facility, the greater of (x) $200.0 million, and (y)  the sum of (A) 80%
of the book amount of all accounts receivable owned  by the Company and its
Restricted Subsidiaries and (B) 50% of the book  value of all inventory owned
by the Company and its Restricted  Subsidiaries, in each case
computed in accordance with GAAP as of the  end of the last fiscal month
of the Company, reduced by any required  permanent repayments actually
made (which are accompanied by a  corresponding permanent
commitment reduction) in respect of the  Revolving Loan Facility
(excluding any such repayment and commitment  reductions to the extent
refinanced and replaced at the time of  payment);


 


(ii) Indebtedness under the Notes, the Note Guarantees and this Indenture;


 


(iii) Existing Indebtedness;


 


(iv) Indebtedness under Hedging Obligations, provided that (1)  such Hedging
Obligations are related to payment obligations on Permitted  Indebtedness or
Indebtedness otherwise permitted by Section 4.07, and  (2) the notional
principal


 


15

















 


amount
of such Hedging Obligations at the time incurred does not exceed  the principal
amount of such Indebtedness to which such Hedging  Obligations relate;


 


(v) Indebtedness of the Company to a Subsidiary Guarantor and  Indebtedness of
any Subsidiary Guarantor to the Company or any other  Subsidiary Guarantor;
provided, however, that upon either (1) the  subsequent issuance (other
than directors’ qualifying shares), sale,  transfer or other disposition
of any Capital Stock or any other event  which results in any such
Subsidiary Guarantor ceasing to be a  Subsidiary Guarantor or (2) the
transfer or other disposition of any  such Indebtedness (except to
the Company or a Subsidiary Guarantor), the  provisions of this clause (v) shall
no longer be applicable to such  Indebtedness and such
Indebtedness shall be deemed, in each case, to be  incurred and shall be treated
as an incurrence for purposes of Section  4.07 at the time the
Subsidiary Guarantor in question ceased to be a  Subsidiary Guarantor or the
time such transfer or other disposition  occurred;


 


(vi) Indebtedness in respect of bid, performance or surety bonds  or insurance of
self-reinsurance obligations (including to secure  worker’s compensation and
other similar insurance coverage) issued for  the account of the Company in
the ordinary course of business consistent  with past practice, including
guarantees or obligations of the Company  with respect to letters of
credit supporting such bid, performance or  surety obligations or such
insurance or self-insurance obligations (in  each case other than for an
obligation for money borrowed);


 


(vii) Indebtedness in respect of Non-Recourse Purchase Money  Indebtedness
incurred by the Company or any Restricted Subsidiary;


 


(viii) Refinancing
Indebtedness;


 


(ix) Indebtedness in respect of the Guarantee by the Company of  revolving credit
indebtedness incurred by Great Lakes Kraut Company in  an aggregate
principal amount at any time outstanding not to exceed  $10.0 million;
and


 


(x) Indebtedness incurred by the Company or any Subsidiary  Guarantor, in
addition to Indebtedness incurred pursuant to the  foregoing clauses of this
definition, with an aggregate principal face  or stated amount (as
applicable) at any time outstanding for all such  Indebtedness incurred
pursuant to this clause not in excess of $25.0  million.


 


“PERMITTED
JUNIOR SECURITIES” means any securities of the Company provided for by a plan
of reorganization or readjustment that are subordinated in right of payment to
all Senior Indebtedness that may at the time be outstanding to substantially
the same extent as, or to a greater extent than, the Notes are subordinated to
Senior Indebtedness.


 


16

















 


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


 


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


 


“PRO-FAC”
means Pro-Fac Cooperative, Inc., a New York cooperative corporation,
unless and until a successor replaces it in accordance with Article 5 and
thereafter means such successor. For avoidance of doubt, on and after the
Pro-Fac Merger, references herein to “Pro-Fac” shall be deemed to be references
to Pro-Fac, as successor corporation to the Company.


 


“PRO-FAC
DIRECTOR” means any Person who, as a director, officer or other designee of
Pro-Fac, serves as a director of the Company.


 


“PRO-FAC
MARKETING AGREEMENT” means the Marketing and Facilitation Agreement between
Pro-Fac and the Company in the form existing as of the Issue Date, as such
agreement may be amended, restated, renewed, extended or replaced in accordance
with this Indenture.


 


“PRO-FAC
MERGER” means the merger of the Company with and into Pro-Fac with Pro-Fac as
the surviving corporation.


 


“PURCHASE
DATE” means the Change of Control Purchase Date or the Net Proceeds Purchase
Date, as the context requires.


 


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


 


“RECORD
DATE” has the meaning set forth in the Notes.


 


“REFINANCING
INDEBTEDNESS” means Indebtedness of the Company or a Restricted Subsidiary
issued in exchange for, or the proceeds from the issuance and sale or
disbursement of which are used substantially concurrently to repay, redeem,
refund, refinance, discharge or otherwise retire for value, in whole or in part
(collectively, “REPAY”), or constituting an amendment, modification or
supplement to or a deferral or renewal of (collectively, an “AMENDMENT”), any
Indebtedness of the Company or any Restricted Subsidiary (the


 


17

















 


“REFINANCED INDEBTEDNESS”) in
a principal amount not in excess of the principal amount of the Refinanced
Indebtedness (or, if such Refinancing Indebtedness refinances Indebtedness
under a revolving credit facility or other agreement providing a commitment for
subsequent borrowings, with a maximum commitment not to exceed the maximum
commitment under such revolving credit facility or other agreement), plus the
amount of accrued but unpaid interest thereon and the amount of any reasonably
determined prepayment premium necessary to accomplish such refinancing and such
reasonable fees and expenses incurred in connection therewith; provided that: (i) the
Refinancing Indebtedness is the obligation of the same Person as that of the
Refinanced Indebtedness; (ii) if the Refinanced Indebtedness was
subordinated to or pari passu with the Note Indebtedness, then such Refinancing
Indebtedness, by its terms, is expressly pari passu with (in the case of
Refinanced Indebtedness that was pari passu with) the Note Indebtedness, or
subordinate in right of payment to (in the case of Refinanced Indebtedness that
was subordinated to) the Note Indebtedness at least to the same extent as the
Refinanced Indebtedness; (iii) the portion, if any, of the Refinancing
Indebtedness that is scheduled to mature on or prior to the maturity date of
the Notes has a Weighted Average Life to Maturity at the time such Refinancing
Indebtedness is incurred that is equal to or greater than the Weighted Average
Life to Maturity of the portion of the Refinanced Indebtedness being repaid
that is scheduled to mature on or prior to the maturity date of the Notes; and (iv) the
Refinancing Indebtedness is secured only to the extent, if at all, and by the
assets (which may include after-acquired assets), that the Refinanced
Indebtedness is secured.


 


“REGISTRATION”
means a registered exchange offer for the Notes by the Company or other
registration of the Notes under the Securities Act pursuant to and in
accordance with the terms of the Registration Rights Agreement.


 


“REGISTRATION
RIGHTS AGREEMENT” means the Registration Rights Agreement, dated as of the
Issue Date, by and among the Company, Pro-Fac and the Initial Purchasers, as
such agreement may be amended, modified or supplemented from time to time.


 


“REGISTRATION
STATEMENT” means the Registration Statement pursuant to and as defined in the
Registration Rights Agreement.


 


“REGULATION
S” means Regulation S under the Securities Act.


 


“REGULATION
S GLOBAL NOTE” means a permanent global Note in registered form representing
the aggregate principal amount of Notes sold in reliance on Regulation S under
the Securities Act.


 


“RELATED
BUSINESS” means any business in which the Company and its Subsidiaries operate
on the Issue Date, or that is closely related to or complements the business of
the Company and its Subsidiaries, as such business exists on the Issue Date.


 


18

















 


“RELATED
BUSINESS INVESTMENT” means any Investment directly by the Company or its
Restricted Subsidiaries in any Related Business.


 


“REPRESENTATIVE”
means, with respect to any Senior Indebtedness, the indenture trustee or other
trustee, agent or other representative(s), if any, of holders of such Senior
Indebtedness.


 


“RESTRICTED
DEBT PAYMENT” means any purchase, redemption, defeasance (including without
limitation covenant or legal defeasance) or other acquisition or retirement for
value, directly or indirectly, by the Company or a Restricted Subsidiary, prior
to the scheduled maturity or prior to any scheduled repayment of principal or
sinking fund payment, as the case may be, in respect of Subordinated
Indebtedness.


 


“RESTRICTED
INVESTMENT” means any Investment by the Company or any Restricted Subsidiary
(other than investments in Cash Equivalents) in any Person that is not the
Company or a Restricted Subsidiary, including in any Unrestricted Subsidiary,
but shall not include (i) Investments by the Company or any Restricted
Subsidiary in a Person, if as a result of such Investment (a) such Person
becomes a Restricted Subsidiary of the Company that is engaged in a Related
Business or (b) such Person is merged, consolidated or amalgamated with or
into, or transfers or conveys substantially all of its assets to, or is
liquidated into, the Company or a Restricted Subsidiary of the Company that is
engaged in a Related Business; (ii) loans by the Company or any of its
Restricted Subsidiaries to employees of the Company or any of its Restricted
Subsidiaries the proceeds of which are applied to purchase Capital Stock of
Pro-Fac in amount not to exceed $2.0 million at any time outstanding; or (iii) the
Guarantee by the Company of revolving credit indebtedness incurred by Great
Lakes Kraut Company in an aggregate principal amount at any time outstanding
not to exceed $10.0 million; or (iv) demand loans for working capital
purposes from the Company to Pro-Fac made prior to the consummation of the
Pro-Fac Merger, not exceeding $40.0 million at any time outstanding, which will
be reduced to zero for a period of not less than 15 consecutive days in each
fiscal year.


 


“RESTRICTED
PAYMENT” means with respect to any Person: (i) the declaration or payment
of any dividend (other than a dividend declared and paid (x) by a
Wholly-Owned Restricted Subsidiary to holders of its Capital Stock, or (y) by
a Subsidiary (other than a Wholly-Owned Restricted Subsidiary) to its
shareholders on a pro rata basis, but only to the extent of the dividends
actually received by the Company or a Restricted Subsidiary) or the making of
any other payment or distribution of cash, securities or other property or
assets in respect of such Person’s Capital Stock (except that a dividend
payable solely in Capital Stock (other than Disqualified Capital Stock) of such
Person shall not constitute a Restricted Payment) (it being understood that the
allocation of retains to Pro-Fac’s members on and after consummation of the
Pro-Fac Merger shall not be deemed a Restricted Payment); (ii) any payment
on account of the purchase, redemption, retirement or other acquisition for
value of


 


19

















 


(A) the Capital Stock of
the Company or (B) the Capital Stock of any Restricted Subsidiary, or any
other payment or distribution made in respect thereof, either directly or
indirectly (other than a payment solely in Capital Stock that is not
Disqualified Capital Stock, and excluding any such payment to the extent
actually received by the Company or a Restricted Subsidiary); (iii) any
Restricted Investment; or (iv) any Restricted Debt Payment.


 


“RESTRICTED
SECURITY” has the meaning assigned to such term in Rule 144(a)(3) under
the Securities Act; provided that the Trustee shall be entitled to request and
conclusively rely on an Opinion of Counsel with respect to whether any Note
constitutes a Restricted Security.


 


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


 


“REVOLVING
LOAN FACILITY” means the revolving loan facility provided under the New Credit
Facility.


 


“RULE
144A” means Rule 144A under the Securities Act.


 


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


 


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


 


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


 


“SENIOR
INDEBTEDNESS” means, with respect to the Company or any Guarantor, all
Indebtedness and other Obligations specified below payable directly or
indirectly by the Company or such Guarantor, as the case may be, whether
outstanding on the Issue Date or thereafter created, incurred or assumed by the
Company or such Guarantor: (i) the principal of and interest on and all
other Indebtedness and Obligations related to the New Credit Facility
(including, without limitation, all loans, letters of credit and unpaid
drawings with respect thereto and other extensions of credit under the New
Credit Facility, and all expenses, fees, reimbursements, indemnities and other
amounts owing pursuant to the New Credit Facility), (ii) amounts payable
in respect of any Hedging Obligations, (iii) in addition to the amounts
described in (i) and (ii), all Indebtedness not prohibited by Section 4.07
that is not expressly pari passu with, or subordinated to, the Notes or the
Note Guarantees, as the case may be, (iv)


 


20

















 


all Capital Lease Obligations
outstanding on the Issue Date, and (v) all Refinancing Indebtedness
permitted under this Indenture of Indebtedness specified in clauses (i) through
(iv). Notwithstanding anything to the contrary, Senior Indebtedness will not
include (a) any Indebtedness which by the express terms of the agreement
or instrument creating, evidencing or governing the same is junior or
subordinate in right of payment to any item of Senior Indebtedness, (b) any
trade payable arising from the purchase of goods or materials or for services
obtained in the ordinary course of business, (c) Indebtedness incurred
(but only to the extent incurred) in violation of this Indenture as in effect
at the time of the respective incurrence, (d) any Indebtedness of the
Company that, when incurred, was without recourse to the Company, (e) any
Indebtedness to any employee of the Company or any of its respective
Subsidiaries, (f) any liability for taxes owned or owing by the Company, (g) any
Indebtedness represented by the Company’s Old Notes and any Guarantee thereof
by Pro-Fac or any Subsidiary Guarantor, or (h) any Subordinated
Indebtedness. Indebtedness represented by the Old Notes and any Guarantee
thereof by Pro-Fac or any Subsidiary Guarantor shall be pari passu with the
Notes and the Note Guarantees, respectively.


 


“SENIOR
SUBORDINATED INDEBTEDNESS” of the Company means the Notes and any other
Indebtedness of the Company (including the Old Notes) that specifically
provides that such Indebtedness is to rank pari passu with the Notes in right
of payment and is not subordinated by its terms in right of payment to any
Indebtedness or other obligation of the Company which is not Senior
Indebtedness. “Senior Subordinated Indebtedness” of any Guarantor has a
correlative meaning.


 


“SIGNIFICANT
SUBSIDIARY” means any Subsidiary of the Company that would be a “Significant
Subsidiary” as defined in Article 1, Rule 1-02 of Regulation S-X,
promulgated pursuant to the Securities Act, as such Regulation is in effect on
the Issue Date, except all references to “10 percent” in such definition shall
be changed to “2 percent”.


 


“SUBORDINATED
INDEBTEDNESS” means Indebtedness of the Company or any Restricted Subsidiary
that is subordinated in right of payment to the Notes or the Note Guarantee of
such Restricted Subsidiary, respectively, including, without limitation, the
Subordinated Promissory Note and any additional promissory notes issued in
accordance with the terms thereof as in effect on the Issue Date.


 


“SUBORDINATED
PROMISSORY NOTE” means the Subordinated Promissory Note dated as of September 23,
1998 made by the Company to Deans Food Company in principal amount of $30.0
million issued in connection with the consummation of the Acquisition.


 


“SUBSIDIARY”
of any Person means (i) any corporation of which at least a majority of
the aggregate voting power of all classes of the Voting Stock is owned by such
Person directly or through one or more other Subsidiaries of such Person and (ii) any
entity other than a corporation in which such Person, directly or indirectly,
owns at least a majority of the


 


21














 


Voting Stock of such entity
entitling the holder thereof to vote or otherwise participate in the selection
of the governing body, partners, managers or others that control the management
and policies of such entity. Unless otherwise specified, “Subsidiary” means a
Subsidiary of the Company.


 


“SUBSIDIARY
GUARANTOR” means (i) each of Linden Oaks Corporation, a Delaware
corporation, and Kennedy Endeavors, Incorporated, a Washington corporation and (ii) each
other person who is required to become (or whom the Company otherwise causes to
become) a Subsidiary Guarantor by the terms of this Indenture.


 


“TERM
LOAN FACILITIES” means the Term Loan Facilities provided under the New Credit
Facility.


 


“TIA”
means the Trust Indenture Act of 1939 (15 U.S.C. ss.ss. 77aaa-77bbbb) aS in
effect on the Issue Date (except as provided in Section 9.03 herein).


 


“TRUSTEE”
means IBJ Schroder Bank & Trust Company until a successor replaces it
in accordance with the applicable provisions of this Indenture and thereafter
means such successor.


 


“TRUST
OFFICER” when used with respect to the Trustee means the chairman or vice
chairman of the board of directors, the chairman or vice chairman of the
executive committee of the board of directors, the president, any vice
president, the secretary, any assistant secretary, the treasurer, any assistant
treasurer, the cashier, any assistant cashier, any trust officer or assistant
trust officer, the controller and any assistant controller or any other officer
of the Trustee customarily performing functions similar to those performed by
any of the above designated officers and also means, with respect to a
particular corporate trust matter, any other officer to whom such matter is
referred because of his knowledge of and familiarity with the particular
subject.


 


“UNRESTRICTED
NOTES” means one or more Notes that do not and are not required to bear the
Private Placement Legend, in the form set forth in EXHIBIT B.


 


“UNRESTRICTED
SUBSIDIARY” means (i) any Subsidiary 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 (ii) any Subsidiary of an
Unrestricted Subsidiary. The Board of Directors of the Company may designate
any Restricted Subsidiary to be an Unrestricted Subsidiary, and any such
designation shall be deemed to be a Restricted Investment at the time of and
immediately upon such designation by the Company and its Restricted
Subsidiaries in the amount of the Consolidated Net Worth of such designated Subsidiary
and its consolidated Subsidiaries at such time, provided that such designation
shall be permitted only if (A) the Company and its Restricted Subsidiaries
would be able to make the Restricted Investment


 


22

















 


deemed made pursuant to such
designation at such time, (B) no portion of the Indebtedness or any other
obligation (contingent or otherwise) of such Subsidiary (x) is Guaranteed
by the Company or any Restricted Subsidiary, (y) is recourse to the
Company or any Restricted Subsidiary or (z) subjects any property or asset
of the Company or any Restricted Subsidiary, directly or indirectly,
contingently or otherwise, to the satisfaction thereof and (C) no default
or event of default with respect to any Indebtedness of such Subsidiary would
permit any holder of any Indebtedness of the Company or any Restricted
Subsidiary to declare such Indebtedness of the Company or any Restricted
Subsidiary due and payable prior to its maturity. The Board of Directors of the
Company may designate any Unrestricted Subsidiary to be a Restricted
Subsidiary, and any such designation shall be deemed to be an incurrence by the
Company and its Restricted Subsidiaries of the Indebtedness (if any) of such
Subsidiary so designated for purposes of Section 4.07 as of the date of
such designation, provided that such designation shall be permitted only if
immediately after giving effect to such designation and the incurrence of any
such additional Indebtedness deemed to have been incurred thereby (x) the
Company would meet the Coverage Ratio Incurrence Condition and (y) no
Default or Event of Default shall have occurred and be continuing. Any such
designation by the Board of Directors described in the two preceding sentences
shall be evidenced to the Trustee by the filing with the Trustee of a certified
copy of the Board Resolution giving effect to such designation and an Officers’
Certificate certifying that such designation complied with the foregoing
conditions and setting forth the underlying calculations of such certificate.


 


“U.S.
LEGAL TENDER” means such coin or currency of the United States of America as at
the time of payment shall be legal tender for the payment of public and private
debts.


 


“U.S.
PERSON” has the meaning ascribed to it in Regulation S.


 


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


 


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


 


“WHOLLY-OWNED
RESTRICTED SUBSIDIARY” means a Restricted Subsidiary of which 100% of the
Capital Stock (except for directors’ qualifying shares or certain minority


 


23

















 


interests owned by other
Persons solely due to local law requirements that there be more than one
stockholder, but which interest is not in excess of what is required for such
purpose) is owned directly by the Company or through one or more Wholly-Owned
Restricted Subsidiaries.


 


SECTION 1.02. Other Definitions.


 


	
   

  	
   

  	
  DEFINED
  IN

  
	
  TERM

  	
   

  	
  SECTION

  
	
   

  	
   

  	
   

  
	
  “AFFILIATE TRANSACTION”

  	
   

  	
  4.10

  
	
  “AGENT MEMBERS”

  	
   

  	
  2.08(a)

  
	
  “AUTHENTICATING AGENT”

  	
   

  	
  2.02

  
	
  “CHANGE OF CONTROL OFFER”

  	
   

  	
  4.15(b)

  
	
  “CHANGE OF CONTROL OFFER
  PERIOD”

  	
   

  	
  4.15(c)

  
	
  “CHANGE OF CONTROL PURCHASE
  DATE”

  	
   

  	
  4.15(c)

  
	
  “CHANGE OF CONTROL PURCHASE
  PRICE”

  	
   

  	
  4.15(a)

  
	
  “CINS”

  	
   

  	
  2.17

  
	
  “COMMISSION”

  	
   

  	
  4.02

  
	
  “COVENANT DEFEASANCE”

  	
   

  	
  8.01(b)

  
	
  “CUSIP”

  	
   

  	
  2.17

  
	
  “EVENT OF DEFAULT”

  	
   

  	
  6.01(a)

  
	
  “EXCESS PROCEEDS”

  	
   

  	
  4.16(b)

  
	
  “GLOBAL NOTES”

  	
   

  	
  2.01

  
	
  “GLOBAL NOTE HOLDER”

  	
   

  	
  2.08(a)

  
	
  “INSOLVENCY OR LIQUIDATION
  PROCEEDING”

  	
   

  	
  10.02

  
	
  “LEGAL DEFEASANCE”

  	
   

  	
  8.01(b)

  
	
  “NET PROCEEDS DEFICIENCY”

  	
   

  	
  4.16(c)

  
	
  “NET PROCEEDS OFFER”

  	
   

  	
  4.16(c)

  
	
  “NET PROCEEDS OFFER PERIOD”

  	
   

  	
  4.16(c)

  
	
  “NET PROCEEDS PURCHASE
  DATE”

  	
   

  	
  4.16(c)

  
	
  “NON-PAYMENT DEFAULT”

  	
   

  	
  10.03(b)

  
	
  “NOTE AMOUNT”

  	
   

  	
  4.16(d)

  
	
  “NOTE GUARANTEE”

  	
   

  	
  11.01

  
	
  “NOTE INDEBTEDNESS”

  	
   

  	
  10.01

  
	
  “NOTE PORTION OF EXCESS
  PROCEEDS”

  	
   

  	
  4.16(d)

  
	
  “NOTICE OF DEFAULT”

  	
   

  	
  6.01(b)

  
	
  “OFFERED PRICE”

  	
   

  	
  4.16(c)

  
	
  “OTHER INDEBTEDNESS”

  	
   

  	
  4.16(d)

  
	
  “PAYING AGENT”

  	
   

  	
  2.03

  
	
  “PAYMENT AMOUNT”

  	
   

  	
  4.16(c)

  
	
  “PAYMENT BLOCKAGE NOTICE”

  	
   

  	
  10.03(b)

  



 


24

















 


	
  “PAYMENT BLOCKAGE PERIOD”

  	
   

  	
  10.03(b)

  
	
  “PAYMENT DEFAULT”

  	
   

  	
  10.03(a)

  
	
  “PHYSICAL NOTES”

  	
   

  	
  2.01

  
	
  “PRIVATE PLACEMENT LEGEND”

  	
   

  	
  2.07

  
	
  “REGISTRAR”

  	
   

  	
  2.03

  
	
  “RESTRICTED PERIOD”

  	
   

  	
  2.09(b)

  
	
  “SUCCESSOR”

  	
   

  	
  5.01(a)

  
	
  “TRUSTEE EXPENSES”

  	
   

  	
  6.08

  



 


SECTION 1.03.
Incorporation by Reference of TIA. Whenever this Indenture refers to a
provision of the TIA, the portion of the provision required to be incorporated
herein in order for this Indenture to be qualified under the TIA is
incorporated by reference in, and made a part of, this Indenture. Any terms
incorporated by reference in this Indenture that are defined by the TIA,
defined by the TIA by reference to another statute or defined by the Commission
in a rule under the TIA have the meanings so assigned to them therein.


 


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


 


(1) a
term has the meaning assigned to it herein, whether defined expressly or by
reference;


 


(2) “or”
is not exclusive;


 


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


 


(4) words
used herein implying any gender shall apply to both genders;


 


(5) “herein” “hereof” and other words of similar import refer to this
Indenture as a whole and not to any particular Article, Section or other
Subsection;


 


(6) unless otherwise specified herein, all accounting terms used  herein shall be
interpreted, all accounting determinations hereunder  shall be made, and all
financial statements required to be delivered  hereunder shall be prepared
in accordance with GAAP, applied on a basis  consistent with the most
recent audited consolidated financial  statements of the Company;  


 


25

















 


(7) “$,” “U.S. Dollars” and “United States Dollars” each refer to  United States
dollars, or such other money of the United States that at  the time of
payment is legal tender for payment of public and private  debts;  


 


(8) whenever in this Indenture there is mentioned, in any  context,
principal, interest or any other amount payable under or with  respect to any
Note, such mention shall be deemed to include mention of  the payment of
Additional Interest to the extent that, in such context,  Additional
Interest is, was or would be payable in respect thereof;


 


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


 


(10) any reference to a Section or Article refers to such
Section or Article of this Indenture.


 


ARTICLE 2


 


THE NOTES


 


SECTION 2.01.
Form and Dating. The Initial Notes and the Trustee’s certificate of
authentication relating thereto shall be substantially in the form of EXHIBIT
A. The Exchange Notes and the Trustee’s certificate of authentication relating
thereto shall be substantially in the form of EXHIBIT B. The Notes may have
notations, legends or endorsements required by law, stock exchange rule or
depository rule or usage. The Company and the Trustee shall approve the
form of the Notes and any notation, legend or endorsement on them. Each Note
shall be dated the date of its issuance and shall show the date of its
authentication.


 


The
terms and provisions contained in the Notes, annexed hereto as EXHIBITS A and
B, shall constitute, and are hereby expressly made, a part of this Indenture
and, to the extent applicable, the Company, the Guarantors and the Trustee, by
their execution and delivery of this Indenture, expressly agree to such terms
and provisions and to be bound thereby.


 


Notes
offered and sold in reliance on Rule 144A or in offshore transactions in
reliance on Regulation S shall be issued initially in the form of one or more
permanent global Notes in registered form, substantially in the form set forth
in EXHIBIT A (the “GLOBAL NOTES”), deposited with the Trustee, as custodian for
the Depository, duly executed by the Company and authenticated by the Trustee
as hereinafter provided and shall bear the legends set forth in Section 2.07.
The aggregate principal amount of the Global Notes may from time to time be
increased or decreased by adjustments made on the records of the Trustee, as
custodian for the Depository, as hereinafter provided.


 


26

















 


Notes
issued in exchange for interests in the Global Notes pursuant to Section 2.08
may be issued in the form of permanent certificated Notes in registered form
(the “PHYSICAL NOTES”) and shall bear the first legend set forth in Section 2.07.


 


All
Notes offered and sold in reliance on Regulation S shall remain in the form of
a Global Note until the consummation of the Exchange Offer pursuant to the
Registration Rights Agreement.


 


SECTION 2.02.
Execution and Authentication; Aggregate Principal Amount. Two Officers, or an
Officer and an Assistant Secretary, shall sign, or one Officer shall sign and
one Officer or an Assistant Secretary (each of whom shall, in each case, have
been duly authorized by all requisite corporate actions) shall attest to, the
Notes for the Company by manual or facsimile signature.


 


If
an Officer or Assistant Secretary whose signature is on a Note was an Officer
or Assistant Secretary at the time of such execution but no longer holds that
office or position at the time the Trustee authenticates the Note, the Note
shall nevertheless be valid.


 


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


 


The
Trustee shall authenticate (i) Initial Notes for original issue on the
Issue Date in aggregate principal amount not to exceed $200,000,000 and (ii) Unrestricted
Notes from time to time for issue only in exchange for a like principal amount
of Initial Notes, in each case upon written orders of the Company in the form
of an Officers’ Certificate. In each case, the Officers’ Certificate shall
specify the amount of Notes to be authenticated, the date on which the Notes
are to be authenticated, the aggregate principal amount of Notes outstanding on
the date of authentication and whether the Notes are to be Initial Notes or
Unrestricted Notes and shall further specify the amount of such Notes to be
issued as a Global Note or Physical Notes. The aggregate principal amount of
Notes outstanding at any time may not exceed $200,000,000, except as provided
in Section 2.10.


 


Notwithstanding
the foregoing, all Notes issued under this Indenture shall vote and consent
together on all matters (as to which any of such Notes may vote or consent) as
one class and no series of Notes will have the right to vote or consent as a
separate class on any matter.


 


The
Trustee may appoint an authenticating agent (the “AUTHENTICATING Agent”)
reasonably acceptable to the Company to authenticate Notes. Unless otherwise
provided in the appointment, an Authenticating Agent may authenticate Notes
whenever the Trustee may do so. Each reference in this Indenture to
authentication by the Trustee includes


 


27

















 


authentication by such
Authenticating Agent. An Authenticating Agent has the same rights as an Agent
to deal with the Company, the Guarantors or with any of their respective
Affiliates.


 


The
Notes shall be issuable in fully registered form only, without coupons, in
denominations of $1,000 and any integral multiple thereof.


 


SECTION 2.03.
Registrar and Paying Agent. The Company shall maintain an office or agency
(which shall be located in the Borough of Manhattan in the City of New York) (i) where
Notes may be presented for registration of transfer or for exchange (subject to
Sections 2.06, 2.08 and 2.09) (the “REGISTRAR”), (ii) where Notes may be
presented for payment (the “PAYING AGENT”) and (iii) where notices to or
upon the Company and the Guarantors in respect of the Notes or this Indenture
may be served. The Registrar shall keep a register of the Notes and of their
transfer and exchange. The Company may appoint one or more co-registrars and
one or more additional paying agents. The term “Paying Agent” includes any
additional paying agent. The Company may change the Paying Agent, Registrar or
co-registrar with prior written notice to the Trustee. The Company shall notify
the Trustee and the Trustee shall notify the Holders of the name and address of
any Agent not a party to this Indenture. The Company shall enter into an
appropriate agency agreement with any Agent not a party to this Indenture, and
such agreement shall incorporate the provisions of the TIA and implement the
provisions of this Indenture that relate to such Agent.


 


The
Company initially appoints the Trustee as Registrar, Paying Agent and agent for
service of notices and demands in connection with the Notes. The Company, the
Guarantors or any of their respective Affiliates may act as Paying Agent,
Registrar or co-registrar; provided, however, that neither the Company, any
Guarantor nor any of their respective Affiliates may act as Paying Agent after
the occurrence and continuance of an Event of Default. If the Company fails to
appoint or maintain a Registrar and/or Paying Agent, the Trustee shall act as
such, and shall be entitled to appropriate compensation in accordance with Section 7.07.


 


SECTION 2.04.
Paying Agent to Hold Money in Trust. By at least 12:00 noon (Eastern Standard
Time) on the date on which any principal of or interest on any Note is due and
payable, the Company shall deposit with the Paying Agent U.S. Legal Tender in
immediately available funds sufficient to pay such principal or interest when
due. The Company shall require each Paying Agent other than the Trustee to
agree in writing that the Paying Agent will hold in trust for the Holders’
benefit or the Trustee all money the Paying Agent holds for the redemption or
purchase of the Notes or for the payment of principal of, or premium, if any,
or interest (including Additional Interest, if any) on the Notes, and will
notify the Trustee of any default by the Company in providing the Paying Agent
with sufficient funds to redeem or purchase Notes or make any payment on the
Notes as and to the extent required to be redeemed, purchased or paid under the
terms of this Indenture. While any such default continues, the Trustee may
require the Paying Agent to pay all money it holds to the


 


28

















 


Trustee and account for any
funds disbursed. The Company at any time may require the Paying Agent to pay
all money it holds to the Trustee. Upon payment over to the Trustee, the Paying
Agent (if other than the Company or any of its Affiliates) shall have no
further liability for the money it delivered to the Trustee. If the Company,
any Guarantor or any of their respective Affiliates acts as Paying Agent, it
shall segregate and hold in a separate trust fund for the Holders’ benefit all
money it holds as Paying Agent.


 


SECTION 2.05.
Holder Lists. The Trustee shall preserve in as current a form as is reasonably
practicable the most recent list available to it of the names and addresses of
Holders and shall otherwise comply with Section 312(a) of the TIA. If
the Trustee is not the Registrar, the Company shall furnish to the Trustee, at
least seven (7) Business Days before each Record 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 that sets forth the names and
addresses of, and the aggregate principal amount of Notes held by, each Holder,
and the Company shall otherwise comply with Section 312(a) of the
TIA.


 


SECTION 2.06.
Transfer and Exchange. (a) The Company appoints the Trustee as transfer
and exchange agent for the purpose of any transfer or exchange of the Notes.


 


(b) Neither
the Trustee nor the Registrar shall be required (i) to register the
transfer of or exchange any Note selected for redemption, (ii) to register
the transfer of or exchange any Note for a period of 15 days before the mailing
of a notice of redemption and ending on the date of such mailing or (iii) to
register the transfer or exchange of a Note between a Record Date and the next
succeeding Interest Payment Date.


 


(c) No
service charge shall be made for any registration of transfer or exchange
(except as otherwise expressly permitted herein), but the Registrar may require
a Holder to furnish appropriate endorsements and transfer documents and payment
of a sum sufficient to cover any transfer tax or similar governmental charge
payable in connection therewith (other than any such transfer tax or similar
governmental charge payable upon exchanges pursuant to Section 2.13, 3.06,
3.08 or 9.05, which the Company shall pay).


 


(d) Prior
to due presentment for registration of transfer of any Note to the Trustee, the
Trustee, any Agent and the Company shall deem and treat the Person in whose
name any Note is registered as the absolute owner of such Note (whether or not
such Note shall be overdue and notwithstanding any notation of ownership or
other writing on such Note made by anyone other than the Company, the
Registrar, or any co-registrar) for the purpose of receiving payment of
principal of, premium, if any, interest (including Additional Interest, if any)
on such Note and for all other purposes, and notice to the contrary shall not
affect the Trustee, any Agent or the Company.


 


29

















 


(e) A
Holder may transfer a Note only by written application to the Registrar stating
the name of the proposed transferee and otherwise complying with the terms of
this Indenture. No such transfer shall be effected until, and such transferee
shall succeed to the rights of a Holder only upon, final acceptance and
registration of the transfer by the Registrar. Prior to the registration of any
transfer by a Holder as provided herein, the Company, the Trustee, and any
Agent shall treat the person in whose name the Note is registered as the
absolute owner thereof for all purposes whether or not the Note shall be
overdue, and neither the Company, the Trustee, nor any such Agent shall be
affected by notice to the contrary. Furthermore, any Holder of a Global Note
shall, by acceptance of such Global Note, agree that transfers of beneficial
interests in such Global Note may be effected through a book entry system
maintained by the Holder of such Global Note (or its agent) and that ownership
of a beneficial interest in the Note shall be required to be reflected in a
book entry. When Notes are presented to the Registrar or a co-registrar with a
request to register the transfer or to exchange them for an equal principal
amount of Notes of other authorized denominations (including an exchange of
Initial Notes for Exchange Notes), the Registrar or co-registrar, as relevant,
shall register the transfer or make the exchange as requested if the requirements
for such transactions set forth herein are met; provided that no exchanges of
Initial Notes for Exchange Notes shall occur until a Registration Statement
shall have been declared effective by the Commission and provided further that
any Initial Notes that are exchanged for Exchange Notes shall be canceled by
the Trustee. To permit registrations of transfers and exchanges, the Company
shall execute and the Trustee shall authenticate Notes at the Registrar’s
request.


 


All
Notes issued upon any transfer or exchange of Notes shall be valid obligations
of the Company, evidencing the same debt, and entitled to the same benefits
under this Indenture, as the Notes surrendered upon such transfer or exchange.


 


SECTION 2.07.
Restrictive Legends. (a) Each Global Note and Physical Note that
constitutes a Restricted Security or is sold in compliance with Regulation S
shall bear the following legend (the “PRIVATE PLACEMENT LEGEND”) on the face
thereof until after the second anniversary of the later of the Issue Date and
the last date on which the Company or any Affiliate of the Company was the
owner of such Note (or any predecessor security) (or such shorter period of
time as permitted by Rule 144(k) under the Securities Act or any
successor provision thereunder) (or such longer period of time as may be
required under the Securities Act or applicable state securities laws in the
opinion of counsel for the Company, unless otherwise agreed by the Company and
the Holder thereof):


 


THE
SECURITY (OR ITS PREDECESSOR) EVIDENCED HEREBY WAS ORIGINALLY ISSUED IN A
TRANSACTION EXEMPT FROM REGISTRATION UNDER SECTION 5 OF THE U.S. SECURITIES
ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), AND THE SECURITY EVIDENCED
HEREBY MAY NOT BE OFFERED, SOLD OR OTHERWISE TRANSFERRED IN THE ABSENCE OF
SUCH REGISTRATION OR AN


 


30

















 


APPLICABLE
EXEMPTION THEREFROM. EACH PURCHASER OF THE SECURITY  EVIDENCED HEREBY (1) BY
ITS ACQUISITION HEREOF REPRESENTS THAT (A) IT IS  A “QUALIFIED
INSTITUTIONAL BUYER” (AS DEFINED IN RULE 144A UNDER THE  SECURITIES ACT)
OR (B) IT IS NOT A U.S. PERSON AND IS ACQUIRING THE  SECURITY
EVIDENCED HEREBY IN AN OFFSHORE TRANSACTION IN COMPLIANCE WITH  REGULATION S
UNDER THE SECURITIES ACT AND (2) IS HEREBY NOTIFIED THAT  THE SELLER MAY BE
RELYING ON THE EXEMPTION FROM THE PROVISIONS OF  SECTION 5 OF THE
SECURITIES ACT PROVIDED BY RULE 144A THEREUNDER OR  ANOTHER EXEMPTION UNDER THE
SECURITIES ACT. THE HOLDER OF THE SECURITY  EVIDENCED HEREBY AGREES FOR
THE BENEFIT OF THE ISSUER THAT PRIOR TO THE  DATE WHICH IS TWO YEARS AFTER
THE LATER OF THE DATE OF ORIGINAL ISSUANCE  OF THIS NOTE AND THE LAST
DATE ON WHICH THE COMPANY OR ANY AFFILIATE OF  THE COMPANY WAS THE OWNER OF
THIS NOTE (THE “RESALE RESTRICTION  TERMINATION DATE”) (X) SUCH
SECURITY MAY BE RESOLD, PLEDGED OR OTHERWISE  TRANSFERRED ONLY: (i) (a) TO
A PERSON WHO 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,  (b) IN A TRANSACTION
MEETING THE REQUIREMENTS OF RULE 144 UNDER THE  SECURITIES ACT, (c) OUTSIDE
THE UNITED STATES TO A PERSON THAT IS NOT A  U.S. PERSON (AS DEFINED IN
RULE 902 UNDER THE SECURITIES ACT) IN A  TRANSACTION MEETING THE
REQUIREMENTS OF RULE 904 UNDER THE SECURITIES  ACT OR (d) IN ACCORDANCE
WITH ANOTHER EXEMPTION FROM THE REGISTRATION  REQUIREMENTS OF THE
SECURITIES ACT (AND BASED UPON AN OPINION OF COUNSEL  IF THE COMPANY SO REQUESTS), (ii) TO
THE COMPANY OR (iii) PURSUANT TO AN  EFFECTIVE REGISTRATION STATEMENT
AND, IN EACH CASE, IN ACCORDANCE WITH  ANY APPLICABLE SECURITIES
LAWS OF ANY STATE OF THE UNITED STATES OR ANY  OTHER APPLICABLE JURISDICTION
AND (Y) THE HOLDER WILL, AND EACH  SUBSEQUENT HOLDER IS REQUIRED
TO, NOTIFY ANY PURCHASER FROM IT OF THE  SECURITY EVIDENCED HEREBY OF
THE RESALE RESTRICTIONS SET FORTH IN (X)  ABOVE. THE FOREGOING
RESTRICTIONS ON RESALE WILL NOT APPLY SUBSEQUENT TO  THE RESALE RESTRICTION
TERMINATION DATE.  


 


31














 


(b) Each
Global Note shall also bear the following legend on the face thereof:  


 


UNLESS AND UNTIL IT IS EXCHANGED IN WHOLE OR IN PART FOR  SECURITIES IN
DEFINITIVE FORM, THIS SECURITY MAY NOT BE TRANSFERRED  EXCEPT AS A
WHOLE BY THE DEPOSITORY TO A NOMINEE OF THE DEPOSITORY, OR  BY ANY SUCH
NOMINEE OF THE DEPOSITORY, OR BY THE DEPOSITORY OR NOMINEE  OF SUCH
SUCCESSOR DEPOSITORY OR ANY SUCH NOMINEE TO A SUCCESSOR  DEPOSITORY OR A
NOMINEE OF SUCH SUCCESSOR DEPOSITORY. UNLESS THIS  CERTIFICATE IS PRESENTED BY
AN AUTHORIZED REPRESENTATIVE OF THE  DEPOSITORY TRUST COMPANY, A
NEW YORK CORPORATION (“DTC”), 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 HEREON
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 CEDE & CO. 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 SECTIONS 2.06, 2.08 AND 2.09 OF THE  INDENTURE GOVERNING THIS
NOTE.


 


SECTION 2.08.
Book-Entry Provisions for Global Notes. (a) The Global Notes initially
shall (i) be registered in the name of the Depository or the nominee of
such Depository (the “GLOBAL NOTE HOLDER”), (ii) be delivered to the
Trustee as custodian for such Depository and (iii) bear legends as set forth
in Section 2.07.


 


Members
of, or participants in, the Depository (“AGENT MEMBERS”) shall have no rights
under this Indenture with respect to any Global Note held on their behalf by
the Depository, or the Trustee as its custodian, or under the Global Notes, and
the Depository may be treated by the Company, the Trustee and any Agent of the
Company or the Trustee as the absolute owner of the Global Notes for all
purposes whatsoever. Notwithstanding the foregoing,


 


32

















 


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 governing the exercise of the rights of a
holder of any Note.


 


(b) Transfers
of the Global Notes shall be limited to transfers in whole, but not in part, to
the Depository, its successors or their respective nominees. Interests of
beneficial owners in the Global Notes may be transferred or, subject to Section 2.01,
exchanged for Physical Notes in accordance with the rules and procedures
of the Depository and the provisions of Section 2.09. In addition,
Physical Notes shall be transferred to all beneficial owners in exchange for
their beneficial interests in the Global Notes if (i) the Depository
notifies the Company that it is unwilling or unable to continue as Depository
for the Global Notes and a successor depositary is not appointed by the Company
within 90 days of such notice or (ii) an Event of Default of which the
Trustee has actual notice has occurred and is continuing and the Registrar has
received a written request from the Depository to issue Physical Notes.


 


(c) In
connection with any transfer or exchange of a portion of the beneficial
interest in any Global Note to beneficial owners pursuant to paragraph (b), the
Registrar shall (if one or more Physical Notes are to be issued) reflect on its
books and records the date and a decrease in the principal amount of such
Global Note in an amount equal to the principal amount of the beneficial
interest in such Global Note to be transferred, and the Company shall execute,
and the Trustee shall authenticate and deliver, one or more Physical Notes of
like tenor and amount.


 


(d) In
connection with the transfer of an entire Global Note to beneficial owners
pursuant to paragraph (b), such Global Note shall be deemed to be surrendered
to the Trustee for cancellation, and the Company shall execute, and the Trustee
shall authenticate and deliver, to each beneficial owner identified by the
Depository in exchange for its beneficial interest in the Global Note, an equal
aggregate principal amount of Physical Notes of authorized denominations.


 


(e) Any
Physical Note constituting a Restricted Security delivered in exchange for an
interest in a Global Note pursuant to paragraph (b), (c) or (d) shall,
except as otherwise provided by paragraphs (a)(i)(x) and (d) of Section 2.09,
bear the Private Placement Legend.


 


(f) The
Holder of the Global Notes may grant proxies and otherwise authorize any
person, including Agent Members and persons that may hold interests through
Agent Members, to take any action which a Holder is entitled to take under this
Indenture or the Notes.


 


33

















 


SECTION 2.09.
Special Transfer Provisions.


(a) Transfers
to Non-QIB Institutional Accredited Investors. The following provisions shall
apply with respect to the registration of any proposed transfer of a Note
constituting a Restricted Security to any Institutional Accredited Investor
which is not a QIB:


 


(i) the Registrar shall register the transfer of any Note  constituting a
Restricted Security, whether or not such Note bears the  Private
Placement Legend, if (x) the transferee is not an Affiliate of  the Company and
the requested transfer is after the second anniversary  of the later of (a) the
Issue Date and (b) the last date on which the  Company or an Affiliate of
the Company was the owner of such Note (or  any predecessor security) or
such shorter period of time as permitted by  Rule 144(k) under
the Securities Act or any successor provision  thereunder or (y) the
proposed transferee has delivered to the Registrar  a certificate substantially
in the form of EXHIBIT C and such other  information or legal opinions
that the Trustee or the Company may  reasonably require in order
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;


 


(ii) if the proposed transferee is an Agent Member and the Notes  to be
transferred consist of Physical Notes which after transfer are to  be evidenced by
an interest in the IAI Global Note, upon receipt by the  Registrar of (x) written
instructions given in accordance with the  Depository’s and the
Registrar’s procedures and (y) the appropriate  certificate, if any, required
by clause (y) of paragraph (i) above,  together with any required
legal opinions and certifications, the  Registrar shall register the
transfer and reflect on its books and  records the date and an
increase in the principal amount of the IAI  Global Note in an amount
equal to the principal amount of Physical Notes  to be transferred, and the
Trustee shall cancel the Physical Notes so  transferred; and


 


(iii) if the proposed transferor is an Agent Member seeking to  transfer an
interest in a Global Note, upon receipt by the Registrar of  (x) written
instructions given in accordance with the Depository’s and  the Registrar’s
procedures and (y) the appropriate certificate, if any,  required by
clause (y) of paragraph (i) above, together with any  required legal
opinions and certifications, the Registrar shall register  the transfer and
reflect on its books and records the date and (A) a  decrease in the
principal amount of the Global Note from which such  interests are to be
transferred in an amount equal to the principal  amount of the Notes to be
transferred and (B) an increase in the  principal amount of the IAI
Global Note in an amount equal to the  principal amount of the
Global Note to be transferred.


 


34

















 


(b) Transfers
to Non-U.S. Persons. The following additional provisions shall apply with
respect to the registration of any proposed transfer of an Initial Note to any
Non-U.S. Person:


 


(i) the Registrar shall register the transfer of any Note  constituting a
Restricted Security, whether or not such Note bears the  Private
Placement Legend, if (x) the transferee is not an Affiliate of  the Company and
the requested transfer is after the second anniversary  of the later of (a) the
Issue Date and (b) the last date on which the  Company or an Affiliate of
the Company was the owner of such Note (or  any predecessor security) or
such shorter period of time as permitted by  Rule 144(k) under
the Securities Act or any successor provision  thereunder or (y) the
proposed transferor has delivered to the Registrar  a certificate substantially
in the form of EXHIBIT D and such other  information or legal opinions
that the Trustee or the Company may  reasonably require in order
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;


 


(ii) if the proposed transferee is an Agent Member and the Notes  to be
transferred consist of Physical Notes which after transfer are to  be evidenced by
an interest in the Regulation S Global Note, upon  receipt by the Registrar of (x) written
instructions given in accordance  with the Depository’s and the
Registrar’s procedures and (y) the  appropriate certificate, if
any, required by clause (y) of paragraph (i)  above, together with any
required legal opinions and certifications, the  Registrar shall register the
transfer and reflect on its books and  records the date and an
increase in the principal amount of the  Regulation S Global Note in
an amount equal to the principal amount of  Physical Notes to be
transferred, and the Trustee shall cancel the  Physical Notes so
transferred;


 


(iii) if the proposed transferor is an Agent Member seeking to  transfer an
interest in a Global Note, upon receipt by the Registrar of  (x) written
instructions given in accordance with the Depository’s and  the Registrar’s
procedures and (y) the appropriate certificate, if any,  required by
clause (y) of paragraph (i) above, together with any  required legal
opinions and certifications, the Registrar shall register  the transfer and
reflect on its books and records the date and (A) a  decrease in the
principal amount of the Global Note from which such  interests are to be
transferred in an amount equal to the principal  amount of the Notes to be
transferred and (B) an increase in the  principal amount of the
Regulation S Global Note in an amount equal to  the principal amount of the
Global Note to be transferred; and  


 


35

















 


(iv) until the 41st day after the Issue Date (the “RESTRICTED  PERIOD”), an
owner of a beneficial interest in the Regulation S Global  Note may not
transfer such interest to a transferee that is a U.S.  person or for
the account or benefit of a U.S. Person within the meaning  of Rule 902(o) of
the Securities Act. During the Restricted Period, all  beneficial interests
in the Regulation S Global Note shall be  transferred only through
Cedel or Euroclear, either directly if the  transferor and transferee are
participants in such systems, or  indirectly through
organizations that are participants therein.


 


(c) Transfers
to QIBs. The following provisions shall apply with respect to the registration
of any proposed transfer of a Note constituting a Restricted Security to a QIB
(excluding transfers to Non-U.S. Persons):


 


(i) the Registrar shall register the transfer if such transfer  is being made by
a proposed transferor who has checked the box provided  for on the form
of Note stating, or has otherwise advised the Company  and the
Registrar in writing, that the sale has been made in compliance  with the
provisions of Rule 144A to a transferee who has signed the  certification
provided for on the form of Note stating, or has otherwise  advised the
Company and the Registrar in writing, that it is purchasing  the Note 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 QIB within the meaning of Rule 144A,
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 it 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 its foregoing  representations in order to
claim the exemption from registration  provided by Rule 144A;


 


(ii) if the proposed transferee is an Agent Member, and the Notes  to be
transferred consist of Physical Notes which after transfer are to  be evidenced by
an interest in the 144A Global Note, upon receipt by the  Registrar of
instructions given in accordance with the Depository’s and  the Registrar’s
procedures, the Registrar shall reflect on its books and  records the date
and an increase in the principal amount of the 144A  Global Note in an amount
equal to the principal amount of the Physical  Notes to be transferred, and
the Trustee shall cancel the Physical Notes  so transferred; and


 


(iii) if the proposed transferor is an Agent Member seeking to  transfer an
interest in a Global Note, upon receipt by the Registrar of  written
instructions given in accordance with the Depository’s and the  Registrar’s
procedures, the Registrar shall register the transfer and  reflect on its
books and records the date and (A) a decrease in the  principal amount
of the Global Note  


 


36

















 


from
which interests are to be transferred in an amount equal to the  principal amount
of the Notes to be transferred and (B) an increase in  the principal
amount of the 144A Global Note in an amount equal to the  principal amount
of the Global Note to be transferred.


 


(d) Private
Placement Legend. Upon the transfer, exchange or replacement of Notes not
bearing the Private Placement Legend, the Registrar shall deliver Notes that do
not bear the Private Placement Legend. Upon the transfer, exchange or
replacement of Notes bearing the Private Placement Legend, the Registrar shall
deliver only Notes that bear the Private Placement Legend unless (i) the
circumstance contemplated by paragraph (a)(i)(x) of this Section 2.09
exist, (ii) there is delivered to the Registrar an Opinion of Counsel
reasonably satisfactory to the Company and the Trustee to the effect that
neither such legend nor the related restrictions on transfer are required in
order to maintain compliance with the provisions of the Securities Act or (iii) such
Note has been sold pursuant to an effective registration statement under the
Securities Act.  


 


(e) General.
By its acceptance of any Note bearing the Private Placement Legend, each Holder
of such a Note acknowledges the restrictions on transfer of such Note set forth
in this Indenture and in the Private Placement Legend and agrees that it will
transfer such Note only as provided in this Indenture.


 


The
Registrar shall not register a transfer of any Note unless such transfer
complies with the restrictions on transfer of such Note set forth in this
Indenture.  The Registrar shall retain copies of all letters, notices and other
written communications received pursuant to Section 2.08 or this Section 2.09.
The Company shall have the right to inspect and make copies at its own expense
of all such letters, notices or other written communications at any reasonable
time upon the giving of reasonable written notice to the Registrar.


 


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


 


SECTION 2.10.
Replacement Notes. Holders shall surrender mutilated Notes to the Trustee. If
any mutilated Note is surrendered to the Trustee, or if the Company and the
Trustee receive evidence to their satisfaction of the destruction, loss or
theft of any Note, the Company shall issue and the Trustee shall authenticate,
a replacement Note if the  


 


37

















 


Trustee’s requirements are
met, and each such replacement Note shall be an additional obligation of the
Company. If the Trustee or the Company requires, the Holder must supply an
indemnity bond that is sufficient, in the reasonable judgment of the Trustee
and the Company, to protect the Company, the Trustee, any Agent or any
Authenticating Agent from any loss that any of them may suffer if a Note is
replaced. The Company and the Trustee may charge for its reasonable expenses in
replacing a Note.


 


SECTION 2.11.
Outstanding Notes. The Notes outstanding at any time are all the Notes the
Trustee has authenticated except for those it has canceled, those delivered to
it for cancellation, and those described in this Section 2.11 as not
outstanding. If a Note is replaced pursuant to Section 2.10, it ceases to
be outstanding unless the Trustee receives proof satisfactory to it that a bona
fide purchaser holds the replaced Note. If the entire principal of, premium, if
any, and accrued interest (including Additional Interest, if any) on any Note
is considered paid under Section 4.01, it ceases to be outstanding and
interest on it ceases to accrue. Subject to Section 2.12, a Note does not
cease to be outstanding because the Company, any Guarantor or any of their
respective Affiliates holds such Note.


 


SECTION 2.12.
Treasury Notes. In determining whether the Holders of the required principal
amount of Notes have concurred in any direction, waiver or consent, Notes owned
by the Company, any Guarantor or any of their respective Affiliates shall be
considered as though they are not outstanding; provided, however, that for the
purposes of determining whether the Trustee shall be protected in relying on
any such direction, waiver or consent, only Notes for which the Trustee
receives an Officers’ Certificate stating that such Notes are so owned shall be
so disregarded. The Company shall notify the Trustee, in writing in the form of
an Officers’ Certificate, when it, any Guarantor or any of their respective
Affiliates repurchases or otherwise acquires Notes and of the aggregate
principal amount of such Notes so repurchased or otherwise acquired.
Notwithstanding the foregoing, Notes that the Company or any Affiliate of the
Company offers to purchase or acquires pursuant to an exchange offer, tender
offer or otherwise shall not be deemed to be owned by the Company or any
Affiliate of the Company until legal title to such Notes passes to the Company
or such Affiliate, as the case may be.


 


SECTION 2.13.
Temporary Notes. Until definitive Notes are ready for delivery, the Company may
prepare and the Trustee on its behalf shall authenticate temporary Notes.
Temporary Notes shall be substantially in the form of definitive Notes but may
have variations that the Company considers appropriate for temporary Notes.
Without unreasonable delay, the Company shall prepare and the Trustee on its
behalf, upon receipt of a written order of the Company pursuant to Section 2.02,
shall authenticate definitive Notes in exchange for temporary Notes. Until such
exchange, temporary Notes shall be entitled to the same rights, benefits and
privileges as definitive Notes.


 


38

















 


SECTION 2.14.
Cancellation. The Company at any time may deliver Notes to the Trustee for
cancellation. The Registrar, any co-registrar, the Paying Agent, the Company
and its Subsidiaries shall forward to the Trustee any Notes surrendered to them
for registration of transfer, exchange, replacement, payment (including all
Notes called for redemption and all Notes accepted for payment pursuant to an
Offer) or cancellation, and the Trustee shall cancel all such Notes and shall
return all canceled Notes to the Company. Subject to Section 2.10, the
Company may not issue new Notes to replace any Notes that have been canceled by
the Trustee or that have been delivered to the Trustee for cancellation. If the
Company or any Affiliate of the Company acquires any Notes (other than by
redemption pursuant to Section 3.07 or an Offer pursuant to Section 4.15
or 4.16), such acquisition shall not operate as a redemption or satisfaction of
the Indebtedness represented by such Notes unless and until such Notes are
delivered to the Trustee for cancellation.


 


SECTION 2.15.
Defaulted Interest. If the Company defaults in a payment of interest on the
Notes, it shall pay the defaulted interest in any lawful manner plus, to the
extent lawful, interest payable on the defaulted interest, to Holders on a
subsequent special record date, in each case at the rate provided in the Notes
and Section 4.01. The Company shall, with the Trustee’s consent, fix or
cause to be fixed each such special record date and payment date. At least 15
days before the special record date, the Company (or, at the request of the
Company, the Trustee in the name of, and at the expense of, the Company) shall
mail a notice that states the special record date, the related payment date and
the amount of interest to be paid.


 


SECTION 2.16.
Record Date. The record date for purposes of determining the identity of
holders of Notes entitled to vote or consent to any action by vote or consent
authorized or permitted under this Indenture shall be determined as provided
for in Section 316(c) of the TIA.


 


SECTION 2.17.
CUSIP and CINS Numbers. A “CUSIP” or “CINS” number will be printed on the Notes
and the Trustee shall use CUSIP or CINS numbers, as the case may be, in notices
of redemption, purchase or exchange as a convenience to Holders; provided,
however, that any such notice may state that no representation is made as to
the correctness or accuracy of such numbers printed in the notice or on the
Notes and that reliance may be placed only on the other identification numbers
printed on the Notes. The Company will promptly notify the Trustee of any
change in the CUSIP or CINS number, as the case may be.


 


39

















 


ARTICLE 3


 


Redemptions and Offers to Purchase


 


SECTION 3.01.
Notices to Trustee. If the Company elects to redeem Notes pursuant to Section 3.07,
it shall furnish to the Trustee, at least 15 but not more than 30 days before
notice of any redemption is to be mailed to Holders (or such shorter time as
may be satisfactory to the Trustee), (x) an Officers’ Certificate stating (i) that
the Company has elected to redeem Notes pursuant to Section 3.07(a) or
(b), as the case may be, (ii) the date notice of redemption is to be
mailed to Holders, (iii) the redemption date, (iv) the aggregate
principal amount of Notes to be redeemed, (v) the redemption price for
such Notes and (vi) the amount, if any, of accrued and unpaid interest
(including Additional Interest, if any) on such Notes as of the redemption date
and (y) an Opinion of Counsel that the Company is entitled to redeem the
Notes pursuant to Section 3.07. If the Trustee is not the Registrar, the
Company shall, concurrently with delivery of its notice to the Trustee of a
redemption, cause the Registrar to deliver to the Trustee a certificate (upon
which the Trustee may rely) setting forth the name of, and the aggregate
principal amount of the Notes held by, each Holder.


 


If
the Company is required to offer to purchase Notes pursuant to Section 4.15
or 4.16, it shall furnish to the Trustee, at least two Business Days before
notice of the Offer is to be mailed to Holders, an Officers’ Certificate
setting forth (i) that the Offer is being made pursuant to Section 4.15
or 4.16, as the case may be, (ii) the Purchase Date, (iii) the
maximum principal amount of Notes the Company is offering to purchase pursuant
to the Offer, (iv) the purchase price for such Notes and (v) the
amount, if any, of accrued and unpaid interest (including Additional Interest,
if any) on such Notes as of the Purchase Date.


 


The
Company will also provide the Trustee with any additional information that the
Trustee reasonably requests in connection with any redemption or Offer.


 


SECTION 3.02.
Selection of Notes to Be Redeemed or Purchased. If less than all outstanding
Notes are to be redeemed or if less than all Notes tendered pursuant to an
Offer are to be accepted for payment, the Trustee shall select the outstanding
Notes to be redeemed or accepted for payment on a pro rata basis, by lot or by
any other method that the Trustee deems fair and appropriate. If the Company
elects to mail notice of a redemption to Holders, the Trustee shall (i) select
the Notes to be redeemed from Notes outstanding not previously called for
redemption in the manner specified by the Trustee and (ii) notify the
Company of the names of each Holder of Notes selected for redemption, the
principal amount of Notes held by each such Holder and the principal amount of
such Holder’s Notes that are to be redeemed. If less than all Notes tendered
pursuant to an Offer are to be accepted for payment, the Trustee shall select
on or prior to the Purchase Date for such Offer the Notes to be accepted for
payment. The Trustee shall select for redemption or purchase Notes or portions
of Notes in principal amounts at maturity of $1,000 or integral multiples
thereof; except that if  


 


40

















 


all of the Notes of a Holder
are selected for redemption or purchase, the aggregate principal amount of the
Notes held by such Holder, even if not an integral multiple of $1,000, may be
redeemed or purchased. Except as provided in the preceding sentence, provisions
of this Indenture that apply to Notes called for redemption or tendered
pursuant to an Offer also apply to portions of Notes called for redemption or
tendered pursuant to an Offer. The Trustee shall notify the Company promptly of
the Notes or portions of Notes to be called for redemption or selected for
purchase.


 


SECTION 3.03.
Notice of Redemption. (a) With respect to any redemption of Notes, a
notice of redemption shall identify the Notes or portions thereof to be
redeemed, including CUSIP or CINS numbers, and shall state: (1) the
redemption date; (2) the redemption price for the Notes and the amount, if
any, of unpaid and accrued interest on such Notes as of the date of redemption
and the premium, if any, and Additional Interest, if any, on the Notes as of
the date of redemption; (3) the section of this Indenture pursuant to
which the Notes called for redemption are being redeemed; (4) if any Note
is being redeemed in part, the portion of the principal amount of such Note to
be redeemed and that, after the redemption date, upon surrender of such Note, a
new Note or Notes in principal amount equal to the unredeemed portion will be
issued; (5) the name and address of the Paying Agent; (6) that Notes
called for redemption must be surrendered to the Paying Agent to collect the
redemption price for, and any accrued and unpaid interest (including Additional
Interest, if any) on such Notes as of the date of redemption; (7) that,
unless the Company defaults in making such redemption payment, interest on
Notes called for redemption ceases to accrue on and after the redemption date;
and (8) that no representation is made as to the correctness or accuracy
of the CUSIP or CINS number (as applicable) listed in such notice and printed
on the Notes.


 


(b) The
Trustee shall (at the Company’s expense and in the Company’s name) give the
notice of any redemption setting forth the information required by paragraph (a) to
Holders at least 30 days but not more than 60 days before the redemption date;
provided, however, that the Company shall deliver to the Trustee, at least 45
days prior to the date of redemption and at least 15 days prior to the date
that notice of the redemption is to be mailed to Holders, an Officers’
Certificate that (i) requests the Trustee to give notice of the redemption
to Holders, (ii) sets forth the information to be provided to Holders in
the notice of redemption, as set forth in the preceding paragraph, and (iii) sets
forth the aggregate principal amount of Notes to be redeemed and the amount, if
any, of accrued and unpaid interest (including Additional Interest, if any)
thereon as of the date of redemption. If the Trustee is not the Registrar, the
Company shall, concurrently with any such request, cause the Registrar to
deliver to the Trustee a certificate (upon which the Trustee may rely) setting
forth the name of, the address of, and the aggregate principal amount of Notes
held by, each Holder; provided further that any such Officers’ Certificate may
be delivered to the Trustee on a date later than permitted under this Section 3.03(b) if
such later date is acceptable to the Trustee.


 


41














 


SECTION 3.04.
Effect of Notice of Redemption. Once notice of redemption is mailed, Notes
called for redemption become due and payable on the redemption date at the
price set forth in the Note.


 


SECTION 3.05.
Deposit of Redemption Price. (a) Prior to 12:00 noon (Eastern Standard
Time) on any redemption date, the Company shall deposit with the Paying Agent
U.S. Legal Tender sufficient to pay the redemption price of, and the amount, if
any, of accrued interest and unpaid interest (including Additional Interest, if
any) on all Notes to be redeemed in immediately available funds as of the date
of redemption. After any redemption date, the Paying Agent shall promptly
return to the Company any money that the Company deposited with the Paying
Agent in excess of the amounts necessary to pay the redemption price of, and
any accrued interest (including Additional Interest, if any) on all Notes to be
redeemed.


 


(b) If
the Company complies with the preceding paragraph, interest on the Notes to be
redeemed will cease to accrue on such Notes on the applicable redemption date,
whether or not such Notes are presented for payment. If a Note is redeemed on
an Interest Payment Date, then any accrued and unpaid interest shall be paid to
the Person in whose name such Note was registered at the close of business on
the related Record Date, and in all other circumstances, such interest shall be
paid to the Holder of such Note. If any Note called for redemption shall not be
so paid upon surrender for redemption because of the failure of the Company to
comply with the preceding paragraph, interest will be paid on the unpaid
principal, premium, if any, and unpaid interest (including Additional Interest,
if any) which has accrued to the redemption date and from the redemption date
until such amounts are paid, at the rate of interest provided in the Notes and Section 4.01.


 


SECTION 3.06.
Notes Redeemed in Part. Upon surrender of a Note that is redeemed in part, the
Company shall issue and the Trustee shall authenticate for the Holder at the
Company’s expense a new Note equal in principal amount to the unredeemed
portion of the Note surrendered.


 


SECTION 3.07.
Redemption Provisions. (a) The Notes will not be redeemed prior to November 1,
2003, but will be redeemable at the option of the Company, in whole or in part,
at time on or after November 1, 2003, at the following redemption prices
(expressed as percentages of principal amount), together with accrued and
unpaid interest, if any, thereon, to the redemption date, if redeemed during
the twelve-month period beginning November 1:


 


42

















 


	
   

  	
   

  	
  OPTIONAL

  	
   

  
	
   

  	
   

  	
  REDEMPTION

  	
   

  
	
  YEAR

  	
   

  	
  PRICE

  	
   

  
	
  2003

  	
   

  	
  105.938

  	
  %

  
	
  2004

  	
   

  	
  103.958

  	
  %

  
	
  2005

  	
   

  	
  101.979

  	
  %

  
	
  2006 and thereafter

  	
   

  	
  100.000

  	
  %

  



 


 


Notwithstanding
the foregoing, at any time prior to November 1, 2001, the Company may
redeem at its option up to 35% of the aggregate principal amount of the Notes
originally issued with the net cash proceeds of one or more Equity Offerings at
a redemption price equal to 111.875% of the principal amount thereof, plus
accrued and unpaid interest and Additional Interest, if any, to the redemption
date; provided that (a) at least $130.0 million in aggregate principal
amount of the Notes remains outstanding immediately after the occurrence of any
such redemption and (b) such redemption occurs within 60 days of the date
of the closing of any such Equity Offering.


 


SECTION 3.08.
Mandatory Offers. (a) If required by Section 4.15 or 4.16, the
Company will mail to the Trustee (who shall mail to each Holder at the Company’s
expense) a notice stating: (1) that an Offer is being made pursuant to Section 4.15
or 4.16, as the case may be, and describing the transaction or transactions
that constitute the Change of Control or Asset Sale, as the case may be, and
the length of time the Offer shall remain open and the maximum aggregate
principal amount of Notes that the Company is offering to purchase pursuant to
such Offer; (2) the purchase price for the Notes (as set forth in Section 4.15
or 4.16, as the case may be), the amount of accrued and unpaid interest and
Additional Interest, if any, on such Notes as of the Purchase Date, and the
Purchase Date; (3) that any Note not accepted for payment will continue to
accrue interest; (4) that, unless the Company defaults in making such
payment, any Note accepted for payment pursuant to the Offer will cease to
accrue interest after the relevant Purchase Date; (5) that Holders may
tender all or any portion of the Notes registered in the name of such Holder
and that any portion of a Note tendered must be tendered in a principal amount
of $1,000 or an integral multiple thereof; (6) that Holders electing to
tender any Note or portion thereof will be required to surrender their Note,
with the form therein entitled “Option of Holder to Elect Purchase” completed,
or transfer by book-entry transfer, to the Company, a Depository, if appointed
by the Company, or a Paying Agent at the address specified in the notice at
least three days prior to the Purchase Date; (7) that Holders will be
entitled to withdraw their election to tender Notes if the Company, the
Depository or the Paying Agent, as the case may be, receives, not later than
the close of business on the last day of the relevant Offer Period, a facsimile
transmission or letter setting forth the name of the Holder, the principal
amount of Notes delivered for purchase, and a statement that such Holder is
withdrawing his election to have such Note purchased; and (8) that Holders


 


43

















 


whose Notes are accepted for
payment in part will be issued new Notes equal in principal amount to the
unpurchased portion of Notes surrendered, provided that only Notes in a
principal amount of $1,000 or integral multiples thereof will be accepted for
payment in part.


 


(b) On
the Purchase Date for any Offer, the Company will (i) to the extent
lawful, (x) in the case of an Offer resulting from a Change of Control,
accept for payment all Notes or portions thereof properly tendered pursuant to
such Offer and (y) in the case of an Offer resulting from one or more
Asset Sales, accept for payment, on a pro rata basis to the extent necessary,
the Payment Amount of Notes or portions thereof pursuant to the Net Proceeds
Offer, or if less than the Payment Amount has been tendered, all Notes
tendered, and will deliver to the Trustee an Officers’ Certificate stating that
such Notes or portions thereof were accepted for payment by the Company in
accordance with the terms of Sections 3.08 and 4.16, (ii) deposit with the
Paying Agent by 12:00 noon (Eastern Standard Time) on the Purchase Date U.S.
Legal Tender in immediately available funds sufficient to pay the aggregate
purchase price of all Notes or portions thereof accepted for payment and any
accrued and unpaid interest (including Additional Interest, if any) on such
Notes as of the Purchase Date, and (iii) deliver, or cause to be
delivered, to the Trustee all Notes or portions thereof so accepted together
with an Officers’ Certificate setting forth the name of each Holder that
tendered Notes and the principal amount of the Notes, as the case may be, or
portions thereof tendered by each such Holder.


 


(c) With
respect to any Offer, (i) if less than all of the Notes tendered pursuant
to an Offer are to be accepted for payment by the Company for any reason, the
Trustee shall select on or prior to the Purchase Date the Notes or portions
thereof to be accepted for payment pursuant to Section 3.02, and (ii) if
the Company deposits with the Paying Agent on the Purchase Date an amount of
U.S. Legal Tender sufficient to purchase all Notes accepted for payment,
interest shall cease to accrue on such Notes on the Purchase Date; provided,
however, that if the Company fails to deposit an amount of U.S. Legal Tender
sufficient to purchase all Notes accepted for payment, the deposited funds
shall be used to purchase on a pro rata basis all Notes accepted for payment
and interest shall continue to accrue, as the case may be, on all Notes not
purchased.


 


(d) Promptly
after consummation of an Offer, (i) the Paying Agent shall mail to each
Holder of Notes or portions thereof accepted for payment an amount equal to the
Change of Control Purchase Price or Offered Price, as the case may be, (ii) with
respect to any tendered Note not accepted for payment in whole or in part, the
Trustee shall return such Note to the Holder thereof, and (iii) with
respect to any Note accepted for payment in part, the Company shall issue and
the Trustee shall authenticate and mail to each such Holder a new Note equal in
principal amount to the unpurchased portion of the tendered Note.


 


(e) The
Company will (i) publicly announce the results of the Offer to Holders on
or as soon as practicable after the Purchase Date, and (ii) comply with
the applicable


 


44

















 


tender offer rules, including
the requirements of Rule 14e-1 under the Exchange Act and any other
applicable laws and regulations in connection with the purchase of Notes
pursuant to any Offer.


 


(f) If
any of this Section 3.08, Section 4.15 or Section 4.16 conflict
with duties imposed upon the Company or the Guarantors by virtue of any
applicable laws or regulations, the Company or such Guarantor, as the case may
be, shall comply with such applicable laws or regulations and will not be
deemed to have breached its obligations under this Indenture.


 


ARTICLE
4


 


COVENANTS


 


SECTION 4.01.
Payment of Notes. Subject to the provisions of Article 10, the Company
shall pay the principal of, and premium, if any, and interest (including
Additional Interest, if any) on the Notes on the dates and in the manner
provided in the Notes. Holders must surrender their Notes to the Paying Agent
to collect principal payments. The Notes will be payable as to principal,
premium, if any, and interest (including Additional Interest), if any, at the
office or agency of the Company maintained for such purpose within the City and
State of New York or, at the option of the Company, by wire transfer of
immediately available funds or, in the case of Physical Notes only, by mailing
a check to the registered address of the Holder.


 


So
long as the Global Note Holder is the registered owner of any Notes, the Global
Note Holder will be considered the sole holder of outstanding Notes represented
by such Global Notes under this Indenture. Payments in respect of the principal
of, premium, if any, and interest (including Additional Interest), if any, on
any Notes registered in the name of the Global Note Holder on the applicable
Record Date will be payable by the Trustee to or at the direction of such
Global Note Holder in its capacity as the registered holder under this
Indenture. None of the Company, the Guarantors or the Trustee will have any
responsibility or liability for any aspect of the records relating to or
payments made on account of Notes by the Depository, or for maintaining,
supervising or reviewing any records of the Depository relating to such Notes.


 


Principal,
premium or interest (including Additional Interest, if any) shall be considered
paid on the date due if, by 12:00 noon (Eastern Standard Time) on the Business
Day immediately preceding such date, the Company has deposited with the Paying
Agent U.S. Legal Tender in immediately available funds designated for and
sufficient to pay such principal, premium or interest (including Additional
Interest, if any); provided, however, that principal, premium or interest
(including Additional Interest, if any) shall not be considered


 


45

















 


paid within the meaning of
this Section 4.01 if U.S. Legal Tender intended to pay such principal,
premium or interest (including Additional Interest, if any) is held by the
Paying Agent for the benefit of holders of Senior Indebtedness of the Company
pursuant to the provisions of Article 10. The Paying Agent shall return to
the Company, no later than five days following the date of payment, any money
that exceeds the amount then due and payable on the Notes.


 


SECTION 4.02.
Reports. Whether or not required by the rules and regulations of the
Securities and Exchange Commission (the “COMMISSION”), so long as any Notes are
outstanding, each of the Company and Pro-Fac will file with the Commission, to
the extent such filings are accepted by the Commission, and will furnish
(within 15 days after such filing) to the Trustee and the Holders of Notes all
quarterly and annual reports and other information, documents and reports that
would be required to be filed with the Commission pursuant to Section 13
of the Exchange Act if the Company or Pro-Fac, as the case may be, were
required to file under such section. In addition, each of the Company and
Pro-Fac will make such information available to prospective purchasers of the
Notes, securities analysts and broker-dealers who request it in writing. Each
of the Company and Pro-Fac has agreed that, for so long as any Notes remain
outstanding, it will furnish to the Holders and beneficial holders of Notes and
to prospective purchasers of Notes designated by the holders of Transfer
Restricted Securities (as defined in the Registration Rights Agreement) and to
broker dealers, upon their request, the information required to be delivered
pursuant to Rule 144A(d)(4) under the Securities Act. On and after
consummation of the Pro-Fac Merger, only Pro-Fac, as successor corporation to
the Company, shall be required to comply with this Section 4.02.


 


SECTION 4.03.
Compliance Certificate. The Company shall deliver to the Trustee, within 90
days after the end of each fiscal year of the Company, an Officers’ Certificate
stating that (i) a review of the activities of the Company and its
Subsidiaries during the preceding fiscal year without regard to any grace
period has been made to determine whether the Company has kept, observed,
performed and fulfilled all of its obligations under this Indenture and the
Notes, (ii) such review was supervised by the Officers of the Company
signing such certificate, and (iii) that to the best knowledge of each
Officer signing such certificate, (a) the Company has kept, observed, performed
and fulfilled each and every covenant contained in this Indenture and is not in
default in the performance or observance of any of the terms, provisions and
conditions of this Indenture (or, if a Default or Event of Default occurred,
describing all such Defaults or Events of Default of which each such Officer
may have knowledge and what action the Company has taken or proposes to take
with respect thereto), and (b) no event has occurred and remains in
existence by reason of which payments on account of the principal of, or
premium, if any, or interest (including Additional Interest, if any) on the
Notes are prohibited or if such event has occurred, a description of the event
and what action the Company is taking or proposes to take with respect thereto.


 


So
long as not contrary to the then current recommendations of the American
Institute of Certified Public Accountants, the annual financial statements
delivered pursuant to


 


46

















 


Section 4.02 shall be
accompanied by a written statement of the Company’s independent public
accountants (which shall be a firm of established national reputation) that in
making the examination necessary for certification of such financial statements
nothing has come to their attention that would lead them to believe that the
Company has violated any provisions of Sections 4.01, 4.05, 4.07, 4.08, 4.09,
4.10, 4.11, 4.12, 4.13, 4.15, 4.16, 4.17, 4.18 or Article 5 or, if any
such violation has occurred, specifying the nature and period of existence
thereof, it being understood that such accountants shall not be liable directly
or indirectly to any Person for any failure to obtain knowledge of any such
violation.


 


The
Company will, so long as any of the Notes are outstanding, deliver to the
Trustee, promptly after any Officer of the Company becomes aware of any Default
or Event of Default, an Officers’ Certificate specifying such Default or Event
of Default and what action the Company is taking or proposes to take with
respect thereto.


 


SECTION 4.04.
Stay, Extension and Usury Laws. Each of the Company and the Guarantors covenant
(to the extent that they may lawfully do so) that they will not at any time
insist upon, plead, or in any manner whatsoever claim or take the benefit or
advantage of, any stay, extension or usury law wherever enacted, now or at any
time hereafter in force, that might affect the covenants or the performance of
their obligations under this Indenture and the Notes and Note Guarantees; and
each of the Company and the Guarantors (to the extent they may lawfully do so)
hereby expressly waive all benefit or advantage of any such law, and covenant
that they will not, by resort to any such law, hinder, delay or impede the
execution of any power granted to the Trustee pursuant to this Indenture, but
will suffer and permit the execution of every such power as though no such law
has been enacted.


 


SECTION 4.05.
Limitation on Restricted Payments. The Company will not, and will not permit
any of its Restricted Subsidiaries to, directly or indirectly, make any
Restricted Payment (except as permitted below) if at the time of such
Restricted Payment:


 


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


 


(ii)  the Company would be unable to meet the Coverage Ratio  Incurrence
Condition; or  


 


(iii) the amount of such Restricted Payment, when added to the  aggregate amount
of all other Restricted Payments (except as expressly  provided in the
second following paragraph) made on or after the first  day of the last
completed fiscal quarter of the Company ending  immediately prior to the
Issue Date, exceeds the sum of (A) 50% of the  Company’s Consolidated Net
Income (taken as one accounting period) from  the first day of the last
completed fiscal quarter of the Company ending  immediately prior to the
Issue Date to the end of the Company’s most  recently ended fiscal


 


47

















 


quarter
for which financial statements are available at the time of such  Restricted
Payment (or, if such aggregate Consolidated Net Income shall  be a deficit,
minus 100% of such aggregate deficit) plus (B) the net  cash proceeds
from the issuance and sale (other than to a Subsidiary of  the Company or
Pro-Fac) after the Issue Date of (1) the Company’s  Capital Stock
that is not Disqualified Capital Stock (excluding amounts  contributed to
the Company pursuant to clause (E) of this paragraph and  excluding
Capital Stock purchased with the proceeds of loans from the  Company or any of
its Subsidiaries) or (2) debt securities of the  Company that have been
converted into the Company’s Capital Stock that  is not Disqualified Capital
Stock and that is not held by a Subsidiary  of the Company, plus (C) to
the extent that any Restricted Investment  that was made after the Issue
Date is sold for cash or otherwise  liquidated or repaid for
cash, the lesser of (x) the cash return of  capital with respect to such
Restricted Investment (less the cost of  disposition, if any) and (y) the
initial amount of such Restricted  Investment plus (D) the
amount of Restricted Investment outstanding in  an Unrestricted Subsidiary at
the time such Unrestricted Subsidiary is  designated a Restricted
Subsidiary of the Company in accordance with the  definition of “Unrestricted
Subsidiary,” plus (E) 40% of the aggregate  contributions by Pro-Fac to
the Company pursuant to Section 4.18(a)  subsequent to the Issue Date
but prior to the consummation of the  Pro-Fac Merger, plus (F) $7.5
million.  


 


The
foregoing provisions of clauses (ii) and (iii) of the immediately
preceding paragraph will not prohibit (1) the payment of any dividend by
the Company or any Restricted Subsidiary within 60 days after the date of
declaration thereof, if at said date of declaration such payment would have
complied with the provisions of this Indenture; (2) the redemption,
repurchase, retirement or other acquisition of any Capital Stock of the Company
in exchange for, or out of the proceeds of, the substantially concurrent sale
(other than to a Subsidiary of the Company or Pro-Fac) of other Capital Stock
of the Company (other than any Disqualified Capital Stock); (3) the
defeasance, redemption, repurchase or other retirement of Subordinated
Indebtedness in exchange for, or out of the proceeds of, the substantially
concurrent issue and sale of Capital Stock of the Company (other than (x) Disqualified
Capital Stock, (y) Capital Stock sold to a Subsidiary of the Company or
Pro-Fac and (z) Capital Stock purchased with the proceeds of loans from
the Company or any of its Subsidiaries); (4) the payment of amounts prior
to consummation of the Pro-Fac Merger required to fund Pro-Fac’s reasonable
operating expenses, not in excess of $250,000, as adjusted to reflect changes
in the Consumer Price Index between the Issue Date and the date of any such
payment, in any fiscal year; (5) (x) the payments of dividends or
distributions to Pro-Fac solely in amounts and at the times necessary to permit
Pro-Fac, or (y) any payments to members of Pro-Fac or and after the
consummation of the Pro-Fac Merger solely in amounts and at the times
necessary, in each case to purchase, redeem, acquire, cancel or otherwise
retire for value Capital Stock of Pro-Fac (i) held by officers, directors
or employees or former officers, directors or employees (or their transferees,
estates or beneficiaries under their estates), or a trust established for the
benefit of


 


48

















 


any of the foregoing, of
Pro-Fac, the Company or its Subsidiaries, upon death, disability, retirement,
severance or termination of employment or service or pursuant to any agreement
under which such Capital Stock or related rights were issued or (ii) held
by members or former members of Pro-Fac, upon the departure of such Persons as
members of Pro-Fac or upon the discontinuance by any such Person of one or more
crops; provided that the amount of such payments under this clause (5) does
not exceed in the aggregate $2.0 million in any fiscal year; or (6) Restricted
Investments the amount of which, together with the amount of all other
Restricted Investments made pursuant to this clause (6) after the Issue
Date, does not exceed $15.0 million.


 


Each
Restricted Payment permitted pursuant to the preceding paragraph (other than
the Restricted Payments referred to in clauses (2) and (3) thereof,
and, to the extent deducted in determining Consolidated Net Income in any
period, the Restricted Payments referred to in clause (5) thereof) shall
be included once in calculating whether the conditions of clause (iii) of
the second preceding paragraph have been met with respect to any subsequent
Restricted Payments. For purposes of determining compliance with this Section 4.05,
in the event that a transaction meets the criteria of more than one of the types
of Restricted Payments described in the clauses of the immediately preceding
paragraph or of the exceptions in of the definition of “Restricted Payment,”
the Company, in its sole discretion, shall classify such transaction and only
be required to include the amount and type of such transaction in one of such
clauses. If an issuance of Capital Stock of the Company is applied to make a
Restricted Payment pursuant to clause (2) or (3) above, then, in
calculating whether the conditions of clause (iii) of the second preceding
paragraph have been met with respect to any subsequent Restricted Payments, the
proceeds of any such issuance shall be included under such clause (iii) only
to the extent such proceeds are not applied as so described in this sentence.


 


Not
later than the date of making any Restricted Payment, the Company shall deliver
to the Trustee an Officers’ Certificate stating that such Restricted Payment is
permitted and setting forth the basis upon which the calculations required by
this Section 4.05 were computed, which calculations shall be based upon
the Company’s latest available financial statements.


 


SECTION 4.06.
Corporate Existence. Subject to Section 4.16 and Article 5, the
Company will do or cause to be done all things necessary to preserve and keep
in full force and effect its corporate existence and the corporate, partnership
or other existence of each of its Subsidiaries in accordance with the
respective organizational documents of each of its Subsidiaries and the rights
(charter and statutory), licenses and franchises of the Company and each of its
Subsidiaries; provided, however, that the Company shall not be required to
preserve any such right, license or franchise, or the corporate, partnership or
other existence of any Subsidiary, if the Board of Directors of the Company
shall determine that the preservation thereof is no longer desirable in the
conduct of the business of the Company and its Subsidiaries


 


49

















 


taken as a whole, and that the
loss thereof is not adverse in any material respect to the Holders.


 


SECTION 4.07.
Limitations on Additional Indebtedness. (a) The Company will not, and will
not permit any of its Restricted Subsidiaries to, directly or indirectly, incur
any Indebtedness (including without limitation Acquired Indebtedness); provided
that (i) the Company and its Restricted Subsidiaries may incur Permitted
Indebtedness and (ii) if no Default or Event of Default shall have
occurred and be continuing at the time of or as a consequence of the incurrence
of any such Indebtedness, the Company may incur additional Indebtedness if,
after giving effect thereto, the Company’s Consolidated Interest Coverage Ratio
on the date thereof would be at least 2.0 to 1.0, determined on a pro forma
basis as if the incurrence of such additional Indebtedness, and the application
of the net proceeds therefrom, had occurred at the beginning of the
four-quarter period used to calculate the Company’s Consolidated Interest
Coverage Ratio.


 


(b) The
Company may make demand loans to Pro-Fac for working capital purposes in
amounts not exceeding $40.0 million at any time outstanding, each such loan to
bear interest at a rate equal to the rate in effect on the date of such loan
under the Revolving Loan Facility. The loan balance must be reduced to zero for
a period of not less than 15 consecutive days in each fiscal year. Except for
the foregoing provision and except for (x) Pro-Fac’s Note Guarantee and (y) Pro-Fac’s
Guarantee of the Obligations under the New Credit Facility, as long as Pro-Fac
has the right to borrow under the Pro-Fac Marketing Agreement Pro-Fac shall not
incur any other Indebtedness. This paragraph (b) shall not apply on and
after the consummation of the Pro-Fac Merger.


 


SECTION 4.08.
Limitation on the Issuance of Capital Stock of Restricted Subsidiaries. The
Company will not permit any Restricted Subsidiary, directly or indirectly, to
issue or sell any shares of its Capital Stock (including options, warrants or
other rights to purchase shares of such Capital Stock) except (i) to the
Company or a Wholly-Owned Restricted Subsidiary, (ii) if, immediately
after giving effect to such issuance or sale, such Restricted Subsidiary would
no longer constitute a Restricted Subsidiary or (iii) to the extent such
shares represent directors’ qualifying shares or shares required by applicable
law to be held by a Person other than the Company or a Wholly-Owned Restricted
Subsidiary. The proceeds of any sale of Capital Stock permitted hereunder and
referred to in clauses (ii) and (iii) above will be treated as Net
Available Proceeds and must be applied in a manner consistent with Section 4.16.


 


SECTION 4.09.
Limitations on Layering Debt. Neither the Company nor any Guarantor will incur
any Indebtedness that is subordinate or junior in right of payment to any
Senior Indebtedness of the Company or such Guarantor, as the case may be,
unless such Indebtedness by its terms is pari passu with, or subordinated to,
the Notes or the Note Guarantee of such Guarantor, as the case may be.


 


50

















 


SECTION 4.10.
Limitations on Transactions with Affiliates. The Company will not, and will not
permit any of its Restricted Subsidiaries to, directly or indirectly, in one
transaction or a series of related transactions, sell, lease, transfer or
otherwise dispose of any of its properties or assets to, or purchase any
property or assets from or enter into any contract, agreement, understanding,
loan, advance or guarantee with, or for the benefit of, any Affiliate (each of
the foregoing, an “AFFILIATE TRANSACTION”), unless (i) such Affiliate
Transaction is on terms that are no less favorable to the Company or the
relevant Restricted Subsidiary than those that would have been obtained in a
comparable transaction by the Company or such Restricted Subsidiary with an
unrelated Person and (ii) the Company delivers to the Trustee (a) with
respect to any Affiliate Transaction (or series of related transactions)
involving Pro-Fac (including, without limitation, any amendment to or waiver
under the Pro-Fac Marketing Agreement and any agreement for the purchase of
crops entered into pursuant to the Pro-Fac Marketing Agreement) prior to
consummation of the Pro-Fac Merger or involving aggregate payments in excess of
$1.0 million, an Officers’ Certificate certifying that such Affiliate
Transaction complies with clause (i) above and which sets forth and
authenticates a resolution that has been adopted by a vote of a majority of the
Disinterested Directors approving such Affiliate Transaction and (b) with
respect to any Affiliate Transaction (or series of related transactions)
involving aggregate payments in excess of $5.0 million (other than any
Affiliate Transaction (for series of related transactions) occurring prior to
consummation of the Pro-Fac Merger and relating to the Pro-Fac Marketing
Agreement or any agreement for the purchase of crops entered into pursuant to
the Pro-Fac Marketing Agreement), the Officers’ Certificate described in the
preceding clause (a) and an opinion as to the fairness to the Company or
such Subsidiary from a financial point of view of such Affiliate Transaction
(or series of related transactions) issued by an Independent Financial Advisor;
provided, however, that the following shall not be deemed to be Affiliate
Transactions: (i) transactions exclusively between or among (1) the
Company and one or more Restricted Subsidiaries or (2) Restricted
Subsidiaries, provided, in each case, that no Affiliate of the Company (other
than another Restricted Subsidiary) owns Capital Stock of any such Restricted
Subsidiary; (ii) transactions between the Company or any Restricted
Subsidiary and any qualified employee stock ownership plan established for the
benefit of the Company’s employees, or the establishment or maintenance of any
such plan; (iii) reasonable director, officer and employee compensation
and other benefit and indemnification arrangements entered into in the ordinary
course of business and consistent with past practice; (iv) transactions
permitted by Section 4.05 or excluded from the definition of “Restricted
Payments;” (v) the pledge of Capital Stock of Unrestricted Subsidiaries to
support the Indebtedness thereof; (vi) transactions between the Company or
any Restricted Subsidiary and any Affiliate of the Company or such Restricted
Subsidiary that is a joint venture, provided that no direct or indirect holder
of an equity interest in such joint venture (other than the Company or a
Restricted Subsidiary) is an Affiliate of the Company or such Restricted
Subsidiary; and (vii) except as set forth in clause (a) above, the
Pro-Fac Marketing Agreement and any transaction effected pursuant thereto.


 


51














 


SECTION 4.11. Limitations on Liens. The Company shall not, and
shall not permit any Restricted Subsidiary to, directly or indirectly, incur or
permit to exist any Lien of any nature whatsoever on any property of the
Company or any Restricted Subsidiary (including Capital Stock of a Restricted
Subsidiary), or any proceeds, income or profit therefrom, whether owned at the
Issue Date or thereafter acquired, which secures Indebtedness that is not
Senior Indebtedness unless contemporaneously therewith effective provision is
made to secure the Notes equally and ratably with (or if such Lien secures
Indebtedness that is subordinated to the Notes, prior to) such Indebtedness for
so long as such Indebtedness is secured by a Lien.


 


The
foregoing restrictions shall not apply to (i) Liens existing on the Issue
Date securing Indebtedness outstanding on the Issue Date; (ii) Liens in
favor of the Company; (iii) Liens to secure Non-Recourse Purchase Money
Indebtedness; (iv) Liens securing Acquired Indebtedness permitted to be
incurred under this Indenture, provided that the Liens do not extend to
property or assets not subject to such Lien at the time of acquisition (other
than improvements thereon); (v) Liens on property of a Person existing at
the time such Person is acquired or merged with or into or consolidated with
the Company or any such Restricted Subsidiary (and not created in anticipation
or contemplation thereof); or (vi) Liens to secure Refinancing
Indebtedness of Indebtedness secured by Liens referred to in the foregoing
clauses (iv) and (v), provided that in each case such Liens do not extend
to any additional property or assets (other than improvements thereon).


 


SECTION 4.12. Taxes. The Company shall, and shall cause each
of its Subsidiaries to, pay prior to delinquency all taxes, assessments and
governmental levies the failure of which to pay could reasonably be expected to
result in a material adverse effect on the condition (financial or otherwise),
business or results of operations of the Company and its Subsidiaries taken as
a whole, except for those taxes contested in good faith by appropriate
proceedings properly initiated and diligently conducted and for which adequate
reserves, to the extent required under GAAP, have been taken.


 


SECTION 4.13. Limitations on Restrictions on Distributions
from Restricted Subsidiaries. The Company will not, and will not permit any of
its Restricted Subsidiaries to, create or otherwise cause or suffer to exist or
become effective any Payment Restriction with respect to any of its Restricted
Subsidiaries, except for (a) any such Payment Restriction in effect on the
Issue Date under the New Credit Facility or any similar Payment Restriction
under any similar credit facility, or any amendment, restatement, renewal,
replacement or refinancing of any of the foregoing, provided that such similar
Payment Restrictions are not, taken as a whole, materially more restrictive
than the Payment Restrictions in effect on the Issue Date under the New Credit
Facility; (b) any such Payment Restriction under any agreement evidencing
any Acquired Indebtedness that was permitted to be incurred pursuant to the
Indenture in effect at the time of such incurrence and not created in
contemplation of such event, provided that such Payment Restriction is not
extended to apply to any


 


52

















 


of the assets of the entities
not previously subject thereto; (c) any such Payment Restriction arising
in connection with Refinancing Indebtedness; provided that any such Payment
Restrictions that arise under such Refinancing Indebtedness are not, taken as a
whole, materially more restrictive than those under the agreement creating or
evidencing the Indebtedness being refunded or refinanced; (d) any such
restriction by reason of customary provisions restricting assignments,
subletting or other transfers contained in leases, licenses and similar
agreements entered into in the ordinary course of business; and (e) Payment
Restrictions arising under applicable law.


 


SECTION 4.14. Maintenance of Offices or Agencies. The Company
will maintain an office or an agency in the Borough of Manhattan in the City of
New York (which may be an office of any Agent) where Notes may be surrendered
for registration of transfer or exchange or for presentation for payment and
where notices and demands to or upon the Company and the Guarantors in respect
of the Notes and this Indenture may be served. The Company will give prompt
written notice to the Trustee of any change in the location of such office or
agency. If at any time the Company shall fail to furnish the Trustee with the
address thereof, such presentations, surrenders, notices and demands may be
made or served at the Corporate Trust Office.


 


The
Company may also from time to time designate one or more other offices or
agencies where the Notes may be presented or surrendered for any or all such
purposes and may from time to time rescind such designations. The Company will
give prompt written notice to the Trustee of any such designation or rescission
and of any change in the location of any such other office or agency.


 


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


 


SECTION 4.15. Change of Control. (a) Upon the occurrence
of a Change of Control, each Holder of the Notes will have the right to require
that the Company repurchase such Holder’s Notes, in whole or in part in
integral multiples of $1,000 in principal amount, for a cash purchase price
(the “CHANGE OF CONTROL PURCHASE PRICE”) equal to 101% of the principal amount
thereof, plus accrued and unpaid interest and Additional Interest, if any, to
the date of repurchase, all in accordance with paragraph (b) below.


 


(b) Within 30 days following any Change of Control, the Company
will mail to the Trustee (who shall mail to each holder at the Company’s
expense) a notice (i) describing the transaction or transactions that
constitute the Change of Control, (ii) offering to repurchase, pursuant to the
procedures required by Section 3.08 and described in such notice (a “CHANGE
OF CONTROL OFFER”), on a date specified in such notice (which shall be a
business day not earlier than 30 days or later than 60 days from the date such
notice is mailed) and for the Change of Control Purchase Price, all Notes
properly tendered by such Holder pursuant to


 


53

















 


such offer to purchase for
the Change of Control Purchase Price and (iii) describing the procedures
that holders must follow to accept the Change of Control Offer.


 


(c) The Change of Control Offer will remain open for a period of at
least 20 Business Days (or for such longer period as is required by law)
following its commencement (the “CHANGE OF CONTROL OFFER PERIOD”). No later
than five Business Days after the termination of the change of Control Offer
Period (the “CHANGE OF CONTROL PURCHASE DATE”), the Company will purchase all
Notes tendered in response to the Change of Control Offer. Payment for any
Notes so purchased will be made in the same manner as interest payments are
made.


 


(d) Notwithstanding the foregoing, the Company’s obligation to make
a Change of Control Offer will be satisfied if a third party makes the Change
of Control Offer in the manner and at the times and otherwise in compliance
with the requirements applicable to a Change of Control Offer made by the
Company in this Indenture and purchases all Notes properly tendered and not
withdrawn under such Change of Control Offer.


 


(e) The Company will comply with the applicable tender offer rules,
including the requirements of Rule 14e-1 under the Exchange Act and any
other applicable laws and regulations in connection with the purchase of Notes
pursuant to a Change of Control Offer.


 


SECTION 4.16. Limitations on Asset Sales. (a) The Company
will not, and will not permit any of its Restricted Subsidiaries to, consummate
any Asset Sale unless (i) the Company or such Restricted Subsidiary
receives consideration at the time of such Asset Sale at least equal to the
Fair Market Value of the assets included in such Asset Sale (evidenced by the
delivery by the Company to the Trustee of an Officers’ Certificate certifying
that such Asset Sale complies with this clause (i)), (ii) immediately after
giving effect to such Asset Sale, no Default or Event of Default shall have
occurred and be continuing, and (iii) at least 80% of the consideration
received by the Company or such Restricted Subsidiary therefor is in the form
of cash paid at the closing thereof. The amount (without duplication) of any (x) Indebtedness
(other than Subordinated Indebtedness) of the Company or such Restricted
Subsidiary that is expressly assumed by the transferee in such Asset Sale and
with respect to which the Company or such Restricted Subsidiary, as the case
may be, is unconditionally released by the holder of such Indebtedness, and (y) any
Cash Equivalents, or other notes, securities or items of property received from
such transferee that are promptly (but in any event within 15 days) converted
by the Company or such Restricted Subsidiary to cash (to the extent of the cash
actually so received), shall be deemed to be cash for purposes of clause (iii) of
the preceding sentence and, in the case of clause (x) above, shall also be
deemed to constitute a repayment of, and a permanent reduction in, the amount
of such Indebtedness for purposes of the following paragraph (b). If at any
time any non-cash consideration received by the Company or any Restricted
Subsidiary of the Company, as the case may be, in connection with any Asset


 


54

















 


Sale is converted into or
sold or otherwise disposed of for cash (other than interest received with
respect to any such non-cash consideration), then the date of such conversion
or disposition shall be deemed to constitute the date of an Asset Sale
hereunder and the Net Available Proceeds thereof shall be applied in accordance
with this Section 4.16. A transfer of assets by the Company to a
Restricted Subsidiary or by a Restricted Subsidiary to the Company or to a
Restricted Subsidiary will not be deemed to be an Asset Sale, and a transfer of
assets that is excluded from the definition of “Restricted Payment” or that
constitutes a Restricted Investment and that is permitted under Section 4.05
will not be deemed to be an Asset Sale.


 


(b) If the Company or any Restricted Subsidiary engages in an Asset
Sale, the Company or any Restricted Subsidiary shall, no later than 270 days
after such Asset Sale (i) apply all or any of the Net Available Proceeds
therefrom to repay amounts outstanding under the New Credit Facility or any
other Senior Indebtedness; provided, in each case, that the related loan
commitment (if any) of any Indebtedness constituting revolving credit debt is thereby
permanently reduced by the amount of any such revolving credit debt so repaid;
and/or (ii) invest all or any part of the Net Available Proceeds thereof
in the purchase of fixed assets to be used by the Company and its Restricted
Subsidiaries in a Related Business (together with any short-term assets
incidental thereto), or the making of a Related Business Investment. The amount
of such Net Available Proceeds not applied or invested as provided in this
paragraph will constitute “EXCESS PROCEEDS.”


 


(c) When the aggregate amount of Excess Proceeds equals or exceeds
$10.0 million, the Company will be required to make an offer to purchase, from
all holders of the Notes, an aggregate principal amount of Notes equal to the
amount of such Excess Proceeds as follows:


 


(i) The Company will make an offer to purchase
(a “NET PROCEEDS OFFER”) from all holders of the Notes in accordance with the
procedures set forth in Section 3.08 the maximum principal amount
(expressed as a multiple of $1,000) of Notes that may be purchased out of the
amount (the “PAYMENT AMOUNT”) of such Excess Proceeds.


 


(ii) The offer price for the Notes will be
payable in cash in an amount equal to 100% of the principal amount of the Notes
tendered pursuant to a Net Proceeds Offer, plus accrued and unpaid interest and
Additional Interest, if any, to the date such Net Proceeds Offer is consummated
(the “OFFERED PRICE”), in accordance with the procedures set forth in Section 3.08.
To the extent that the aggregate Offered Price of Notes tendered pursuant to a
Net Proceeds Offer is less than the Payment Amount relating thereto (such
shortfall constituting a “NET PROCEEDS DEFICIENCY”), the Company may use such
Net Proceeds Deficiency, or a portion thereof, for general corporate purposes,
subject to the limitations of Section 4.05.


 


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(iii) If the aggregate Offered Price of Notes
validly tendered and not withdrawn by holders thereof exceeds the Payment
Amount, Notes to be purchased will be selected on a pro rata basis (with such
adjustments as may be appropriate so that only Notes in denominations of
$1,000, or integral multiples thereof, will be purchased).


 


(iv) The Net Proceeds Offer shall remain open
for a period of at least 20 Business Days (or for such longer period as is
required by law) following its commencement (the “NET PROCEEDS OFFER PERIOD”).
No later than five Business Days after the termination of the Offer Period (the
“NET PROCEEDS PURCHASE DATE”), the Company will purchase the principal amount
of Notes required to be purchased pursuant to this Section 4.16. Payment
for any Notes so purchased will be made in the same manner as interest payments
are made.


 


(v) Upon completion of such Net Proceeds Offer
in accordance with the foregoing provisions, the amount of Excess Proceeds in
respect of such Net Proceeds Offer shall be deemed to be zero.


 


(d) Notwithstanding the foregoing, in the event that any other
Indebtedness of the Company which ranks pari passu with the Notes (the “OTHER
Indebtedness”) requires an offer to purchase to be made to repurchase such
Other Indebtedness upon the consummation of an Asset Sale, the Company may
apply the Excess Proceeds otherwise required to be applied to a Net Proceeds
Offer to offer to purchase such Other Indebtedness and to a Net Proceeds Offer
so long as the amount of such Excess Proceeds applied to purchase the Notes is
not less than the Note Portion of Excess Proceeds. With respect to any Excess
Proceeds, the Company shall make the Net Proceeds Offer in respect thereof at
the same time as the analogous offer to purchase is made pursuant to any Other
Indebtedness and the purchase date in respect of the Net Proceeds Offer shall
be the same as the purchase date in respect of the offer to purchase pursuant
to such Other Indebtedness.


 


For
purposes of this Section 4.16, “NOTE PORTION OF EXCESS PROCEEDS,” in
respect of a Net Proceeds Offer, means (1) if no Other Indebtedness is
concurrently being offered to be purchased, the amount of the Excess Proceeds
in respect of such Net Proceeds Offer and (2) if Other Indebtedness is
concurrently being offered to be purchased, an amount equal to the product of (x) the
Excess Proceeds in respect of such Net Proceeds Offer and (y) a fraction
the numerator of which is the principal amount of all Notes tendered pursuant
to such Net Proceeds Offer (the “NOTE AMOUNT”) and the denominator of which is
the sum of the Note Amount and the lesser of the aggregate principal face
amount or accreted value as of the relevant purchase date of all Other
Indebtedness tendered pursuant to a concurrent offer to purchase such Other
Indebtedness made at the time of such Net Proceeds Offer.


 


(e) The Company will not permit any Subsidiary to enter into or
suffer to exist any agreement that would place any restriction of any kind
(other than pursuant to law or


 


56

















 


regulation) on the ability of
the Company to make a Net Proceeds Offer following any Asset Sale.


 


(f) The Company will comply with the applicable tender offer rules,
including Rule 14e-1 under the Exchange Act, and any other applicable laws
and regulations in connection with the purchase of Notes pursuant to a Net
Proceeds Offer.


 


SECTION 4.17. Additional Note Guarantees. (a) If the
Company or any of its Subsidiaries shall acquire or create another Subsidiary
(other than (x) any Foreign Subsidiary so long as such Foreign Subsidiary
is not a guarantor of any Senior Indebtedness of the Company or (y) a
Subsidiary that has been designated as an Unrestricted Subsidiary or (z) an
Immaterial Subsidiary), then within 10 days after acquiring or creating such
Subsidiary, the Company shall comply with paragraph (b) of this Section 4.17.


 


(b) Any Person required by paragraph (a) of this Section 4.17
to become, or that is at the option of the Company becoming, a Guarantor shall
execute and deliver to the Trustee a supplemental indenture in form and
substance satisfactory to the Trustee, which subjects such Person to the
provisions of this Indenture as a Guarantor pursuant to the terms of Article 11,
and provide an Opinion of Counsel to the effect that such supplemental
indenture has been duly authorized and executed by such Person and constitutes
the legal, valid and binding obligation of such Person (subject to customary
assumptions and exceptions).


 


SECTION 4.18. Payments Pursuant to the Pro-Fac Marketing
Agreement; Reinvestments by Pro-Fac; Borrowings by Pro-Fac. (a) As
promptly as practicable, and in any event within ten Business Days, after
receipt from the Company of any payment made in excess of the Commercial Market
Value for crops and other services pursuant to the Pro-Fac Marketing Agreement,
Pro-Fac will invest in cash as common equity interests (other than Disqualified
Capital Stock) in the Company an amount equal to 70% of such excess. Without
the consent of the Holders of at least 75% in principal amount of the Notes
then outstanding (including consents obtained in connection with a tender offer
or exchange offer for the Notes), the Company will not: (a) amend the
calculation of amounts payable to Pro-Fac under the Pro-Fac Marketing Agreement
in a manner which would increase the payments made to Pro-Fac, (b) amend
the Pro-Fac Marketing Agreement to require that Affiliate Transactions
involving Pro-Fac be approved by less than a majority of the Disinterested
Directors or (c) amend this Section 4.18(a) or the definition of
“Commercial Market Value” in this Indenture.


 


(b) Notwithstanding the foregoing, the preceding paragraph (a) shall
not apply on and after the consummation of the Pro-Fac Merger. On and after the
consummation of the Pro-Fac Merger, any payment to any member of Pro-Fac in
cash or property (other than Capital Stock) for crops in excess of Commercial
Market Value shall be deemed to be a Restricted Payment under Section 4.05.
In addition, Pro-Fac will cause its certificate of incorporation and/or by-laws
to be amended no later than the consummation of the Pro-Fac Merger to


 


57

















 


require (i) that there
shall be at least two Disinterested Directors on the Board of Directors of
Pro-Fac at all times, (ii) the formation and maintenance of a committee of
the Board of Directors of Pro-Fac to recommend Commercial Market Value, which
committee shall include at least two Disinterested Directors at all times, (iii) approval
by a majority of the Disinterested Directors of the annual profit plan of
Pro-Fac (including the raw product section of the profit plan) and the final
determination of Commercial Market Value, and (iv) precluding the further
amendment of the certificate of incorporation and by-laws of Pro-Fac concerning
(i), (ii), and (iii) above without the consent of the Holders of at least
75% in principal amount of the Notes then outstanding (including consents
obtained in connection with a tender offer or exchange offer for the Notes).
Without the consent of the Holders of at least 75% in principal amount of the
Notes then outstanding (including consents obtained in connection with a tender
offer or exchange offer for the Notes), the Company and Pro-Fac will not amend
this Section 4.18(b) or the definition of “Commercial Market Value”
in this Indenture.


 


SECTION 4.19. Maintenance of Properties; Insurance; Books and
Records; Compliance with Law. (a) The Company shall, and shall cause each
of its Subsidiaries to, at all times cause all properties used in the conduct
of its business to be maintained and kept in good condition, repair and working
order (reasonably wear and tear excepted) and supplied with all necessary
equipment, and shall cause to be made all necessary repairs, renewals,
replacements, betterments and improvements thereto, in each case, in a manner
customary for companies similarly situated.


 


(b) The Company shall and shall cause each of its Subsidiaries to
maintain insurance with insurance companies or association with a rating of “A-”
or better, as established by Best’s Rating Guide (or an equivalent rating with
such other publication of a similar nature as shall be in current use) in such
amounts and covering such risks as are usually and customarily carried with
respect to companies similarly situated and similar facilities according to
their respective locations.


 


(c) The Company shall and shall cause each of its Subsidiaries to
keep proper books of record and account, in which full and correct entries
shall be made of all financial transactions and the assets and business of the
Company and each Subsidiary of the Company, in accordance with GAAP
consistently applied to the Company and its Subsidiaries taken as a whole.


 


(d) The Company shall and shall cause each of its Subsidiaries to
comply with all statutes, laws, ordinances, or government rules and
regulations to which it is subject, non-compliance with which would materially
adversely affect the business, condition (financial or otherwise), results of
operations or properties of the Company and its Subsidiaries taken as a whole.


 


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(e) The Company and each Guarantor shall deliver to the Trustee any
information reasonably requested by the Trustee in connection with compliance
by the Trustee or the Company with any of their respective duties or
obligations hereunder or under the TIA.


 


(f) Upon the request of the Trustee, the Company and each Guarantor
shall execute and deliver such further instruments and do such further acts as
may be reasonably necessary or proper to carry out effectively the purposes of
this Indenture.


 


(g) The Company shall not and shall not permit any of its
Subsidiaries to enter into any agreement or instrument that by its terms
expressly prohibits the Company from making any payments on or in respect of
the Notes in accordance with the terms thereof and of this Indenture.


 


ARTICLE
5


 


SUCCESSORS


 


SECTION 5.01. Limitations on Mergers and Certain Other
Transactions. (a) The Company will not, in a single transaction or a
series of related transactions, (i) consolidate or merge with or into
(other than a merger with a Wholly-Owned Restricted Subsidiary solely for the
purpose of changing the Company’s jurisdiction of incorporation to another
State of the United States; provided that clauses (a) and (d) below
are complied with), or sell, lease, transfer, convey or otherwise dispose of or
assign all or substantially all of the assets of the Company or the Company and
its Subsidiaries (taken as a whole), or permit any of its Restricted
Subsidiaries to do so if such transaction would result in the transfer of all
or substantially all of the assets of the Company and its Subsidiaries (taken
as a whole), or assign any of its obligations under the Notes and this
Indenture, to any Person or (ii) adopt a Plan of Liquidation unless, in
either case: (a) the Person formed by or surviving such consolidation or
merger (if other than the Company) or to which such sale, lease, conveyance or
other disposition or assignment shall be made (or, in the case of a Plan of
Liquidation, any Person to which assets are transferred) (collectively, the “SUCCESSOR”),
is a corporation or a cooperative corporation organized and existing under the
laws of any State of the United States of America or the District of Columbia,
and the Successor assumes by supplemental indenture in a form satisfactory to
the Trustee all of the obligations of the Company under the Notes and this
Indenture; (b) immediately prior to and immediately after giving effect to
such transaction and the assumption of the obligations as set forth in clause (a) above
and the incurrence of any Indebtedness to be incurred in connection therewith,
no Default or Event of


 


59

















 


Default shall have occurred
and be continuing; provided, however, that in the case of the Pro-Fac Merger,
the foregoing clause (b) shall be deemed to be satisfied if immediately
after giving effect to the Pro-Fac Merger and the assumption of the obligations
set forth in clause (a) above and the incurrence of any Indebtedness to be
incurred in connection therewith, no Default or Event of Default shall have
occurred and be continuing; and (c) immediately after and giving effect to
such transaction and the assumption of the obligations set forth in clause (a) above
and the incurrence of any Indebtedness to be incurred in connection therewith,
and the use of any net proceeds therefrom on a pro forma basis, (x) in the
case of the Pro-Fac Merger only, the Consolidated Coverage Ratio shall be at
least equal to or greater than the Consolidated Coverage Ratio immediately
prior to the consummation of the Pro-Fac Merger and the assumption of the obligations
set forth in clause (a) above and the incurrence of any Indebtedness to be
incurred in connection therewith, and (y) in the case of any other such
transaction, the Company or the Successor, as the case may be, could meet the
Coverage Ratio Incurrence Condition; and (d) each Guarantor, unless it is
the other party to the transactions described above, shall have by amendment to
its Note Guarantee confirmed that its Note Guarantee shall apply to the
obligations of the Company or the Successor under the Notes and this Indenture.
For purposes of this Section 5.01, any Indebtedness of the Successor which
was not Indebtedness of the Company immediately prior to the transaction shall
be deemed to have been incurred in connection with such transaction.


 


(b) No Guarantor (other than a Subsidiary Guarantor whose Note
Guarantee is to be released in accordance with Section 11.08) may
consolidate with or merge with or into (whether or not such Guarantor is the
surviving Person), another Person or entity whether or not affiliated with such
Guarantor unless:


 


(i) the Person formed by or surviving any such consolidation or merger
(if other than such Guarantor) assumes all the obligations of such Guarantor
under the Note Guarantee of such Guarantor and this Indenture pursuant to a
supplemental indenture in form and substance reasonably satisfactory to the
Trustee under the Notes and this Indenture;


 


(ii) immediately after giving effect to such transaction, no Default
or Event of Default exists; and


 


(iii) immediately after giving effect to any such transaction involving
a Subsidiary Guarantor, the Coverage Ratio Incurrence Condition would be met;


 


provided, however, that the
foregoing paragraph (b) of this Section 5.01 shall not apply to the
Pro-Fac Merger (the Pro-Fac Merger being governed by Section 5.01(a)).


 


SECTION 5.02. Successor Corporation Substituted. In the event
of any transaction described in and complying with the conditions listed in Section 5.01
in which the Company or a Guarantor, as the case may be, is not the surviving
Person, such surviving Person shall succeed to, and be substituted for, and may
exercise every right and power of, the Company or such Guarantor, as the case
may be, and the Company shall be discharged from


 


60

















 


its Obligations under this
Indenture and the Notes or such Guarantor shall be discharged from its
Obligations under this Indenture and its Note Guarantee, as the case may be.


 


ARTICLE
6


 


DEFAULTS
AND REMEDIES


 


SECTION 6.01. Events of Default. (a)  Each of the
following constitutes an event of default (an “EVENT OF DEFAULT”):


 


(i) failure by the Company to pay interest or Additional Interest on
any of the Notes when it becomes due and payable and the continuance of any
such failure for 30 days (whether or not such payment shall be prohibited by Article 10);


 


(ii) failure by the Company to pay the principal or premium, if any,
on any of the Notes when it becomes due and payable, whether at stated
maturity, upon redemption (including, without limitation, the failure to make a
payment to purchase Notes tendered pursuant to a Change of Control Offer or Net
Proceeds Offer), upon acceleration or otherwise (whether or not such payment
shall be prohibited by Article 10);


 


(iii) failure by the Company to comply with any of its agreements or
covenants described above under Article 5 or in respect of its obligations
to make a Change of Control Offer or a Net Proceeds Offer described in Sections
4.15 and 4.16, respectively, or failure by Pro-Fac to comply with the
provisions of Section 4.07(b) or 4.18;


 


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


 


(v) failure by either the Company or any of its Restricted Subsidiaries
to make any principal payment at final maturity after the expiration of any
applicable grace period in respect of any Indebtedness of the Company or any of
such Restricted Subsidiaries, or the acceleration of the maturity of such
Indebtedness by the holders thereof because of a default, with an aggregate
outstanding principal amount for all such Indebtedness under this clause (v) of
$7.5 million or more;


 


(vi) one or more final, non-appealable judgments or orders that exceed
$7.5 million in the aggregate for the payment of money have been entered by a
court or courts of competent jurisdiction against the Company or any Restricted
Subsidiary of


 


61






 










 


the
Company and such judgment or judgments have not been satisfied, stayed,
annulled or rescinded within 60 days of being entered;


 


(vii) if under any Bankruptcy Law, (A) the Company, Pro-Fac or
any Significant Subsidiary commences a voluntary case, consents to the entry of
an order for relief against it in an involuntary case, consents to the
appointment of a Custodian of it or for all or substantially all of its
property, or makes a general assignment for the benefit of its creditors, or (B)
a court of competent jurisdiction enters an order or decree, and such order or
decree remains unstated and in effect for 60 days, that is for relief against
the Company, Pro-Fac or any Significant Subsidiary in an involuntary case,
appoints a Custodian of the Company, Pro-Fac or any Significant Subsidiary or
for all or substantially all of the property of the Company, Pro-Fac or any
Significant Subsidiary, or orders the liquidation of the Company, Pro-Fac or
any Significant Subsidiary; and


 


(viii) except as permitted by Section 11.08
any Note Guarantee ceases to be in full force and effect or any Note Guarantee
is declared to be null and void and unenforceable or is found to be invalid or
any Guarantor repudiates its obligations under any Note Guarantee.


 


(b) Any notice of default delivered to the Company by the Trustee
or by Holders of Notes with a copy to the Trustee must specify the Default,
demand that it be remedied and state that the notice is a “NOTICE OF DEFAULT”.


 


SECTION 6.02. Acceleration. (a) If an Event of Default
(other than an Event of Default under Section 6.01(a)(vii) with
respect to the Company) occurs and is continuing under this Indenture, the
Trustee, by written notice to the Company, or the holders of at least 25% in
aggregate principal amount of the Notes then outstanding by written notice to
the Company and the Trustee, may declare all amounts owing under the Notes to
be due and payable immediately. Upon such declaration of acceleration, the
aggregate principal of, premium, if any, and interest (including Additional
Interest, if any) on the outstanding Notes shall immediately become due and
payable.


 


(b) Notwithstanding anything to the contrary in this Indenture, if
an Event of Default arises under Section 6.01(a)(vii) with respect to
the Company, the principal amount of and premium on, if any, and any accrued
and unpaid interest (including Additional Interest, if any) on all outstanding
Notes shall ipso facto become and be immediately due and payable without any
declaration or other act on the part of the Trustee or any Holders.


 


(c) The Holders of a majority in aggregate principal amount of the
then outstanding Notes by notice to the Trustee may rescind any declaration of
acceleration of such Notes and its consequences if the rescission would not conflict
with any judgment or decree


 


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and if all existing Defaults
and Events of Default (other than the nonpayment of principal of, or premium,
if any, or interest on, the Notes which shall have become due by such
declaration) shall have been cured or waived.


 


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
premium, if any, or interest (including Additional Interest, if any) on, the
Notes or to enforce the performance of any provision of the Notes or this
Indenture. The Trustee may maintain a proceeding even if it does not possess
any of the Notes or does not produce any of them in the proceeding. A delay or
omission by the Trustee or any Holder in exercising any right or remedy
accruing upon an Event of Default shall not impair the right or remedy or
constitute a waiver of or acquiescence in the Event of Default. All remedies
are cumulative to the extent permitted by law.


 


SECTION 6.04.
Waiver of Past Defaults. Subject to Section 9.02, the Holders of a
majority in aggregate principal amount of the then outstanding Notes by notice
to the Trustee may on behalf of all Holders waive any existing Default or Event
of Default and its consequences under this Indenture, except a continuing
Default or Event of Default in the payment of the principal of, premium, if
any, or interest (including Additional Interest, if any) on, any Note (which
may only be waived with the consent of each Holder affected). Upon any such
waiver, such Default shall cease to exist, and any Event of Default arising
therefrom shall be deemed to have been cured for every purpose of this
Indenture; provided that no such waiver shall extend to any subsequent or other
Default or Event of Default or impair any right consequent thereon.


 


SECTION 6.05. Control
by Majority of Holders. Subject to Section 7.01(e), the Holders of a
majority in aggregate principal amount of the then outstanding Notes may direct
the time, method and place of conducting any proceeding for any remedy
available to the Trustee or exercising any trust or power conferred on it by
this Indenture. However, the Trustee may refuse to follow any direction that
conflicts with law or this Indenture, that the Trustee determines may be unduly
prejudicial to the rights of other Holders, or would involve the Trustee in
personal liability. The Trustee may take any other action deemed proper by the
Trustee that is not inconsistent with such direction.


 


SECTION 6.06.
Limitations on Suits by Holders. A Holder may pursue a remedy with respect to
this Indenture or the Notes only if: (1) the Holder gives to the Trustee
written notice of a continuing Event of Default; (2) the Holders of at
least 25% in principal amount of the then outstanding Notes make a written
request to the Trustee to pursue the remedy; (3) such Holder or Holders
offer to the Trustee indemnity reasonably satisfactory to the Trustee 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 indemnity;
and (5) during such 60-day period the Holders of a majority in aggregate
principal amount of the then outstanding


 


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Notes do not give the Trustee
a direction inconsistent with the request. A Holder may not use this Indenture
to prejudice the rights of another Holder or to obtain a preference or priority
over another Holder. Holders of the Notes may not enforce this Indenture or the
Notes, except as provided herein.


 


SECTION 6.07.
Rights of Holders to Receive Payment. Notwithstanding any other provision of
this Indenture, but subject to Article 10, the right of any Holder to
receive payment of principal of, and premium, if any, and interest (including
Additional Interest, if any) on, a Note, on or after a respective due date
expressed in the Note, or to bring suit for the enforcement of any such payment
on or after such respective date, shall not be impaired or affected without the
consent of the Holder.


 


SECTION 6.08.
Collection Suit by Trustee. If an Event of Default specified in Section 6.01(a)(i) or
(a)(ii) occurs and is continuing, the Trustee is authorized to recover
judgment in its own name and as trustee of an express trust against the Company
(or any Guarantor or other obligor under the Notes) for (i) principal,
premium, if any, interest, if any, and Additional Interest, if any, remaining
unpaid on the Notes, (ii) interest on overdue principal and premium, if
any, and, to the extent lawful, interest, and (iii) such further amount as
shall be sufficient to cover the costs and expenses of collection, including
the reasonable compensation, expenses, disbursements and advances of the Trustee,
its agents and counsel (“TRUSTEE EXPENSES”).


 


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 to have
the claims of the Trustee (including any claim for Trustee Expenses and for
amounts due under Section 7.07) and the Holders allowed in any Insolvency
or Liquidation Proceeding or other judicial proceeding relative to the Company
(or any Guarantor or other obligor upon the Notes), its creditors or its
property and shall be entitled and empowered to collect, receive and distribute
to Holders any money or other property payable or deliverable on any such
claims and each Holder authorizes any Custodian in any such Insolvency or
Liquidation Proceeding or other judicial proceeding to make such payments to
the Trustee, and if the Trustee shall consent to the making of such payments
directly to the Holders any such Custodian is hereby authorized to make such
payments directly to the Holders, and to pay to the Trustee any amount due to
it hereunder for Trustee Expenses, and any other amounts due the Trustee or any
predecessor Trustee under Section 7.07; provided, however, that the
Trustee shall not be authorized to (i) consent to, accept or adopt on
behalf of any Holder any plan of reorganization, arrangement, adjustment or
composition affecting the Notes or the rights of any Holder or (ii) vote
in respect of the claim of any Holder in any such Insolvency or Liquidation
Proceeding or other judicial proceeding.


 


SECTION 6.10.
Priorities. If the Trustee collects any money pursuant to this Article 6,
it shall pay out the money in the following order:


 


64

















 


	
  First:

  	
  to the Trustee for all
  Trustee Expenses and for all amounts due under Section 7.07;

  
	
   

  	
   

  
	
  Second:

  	
  to the holders of Senior
  Indebtedness to the extent required by Article 10;

  
	
   

  	
   

  
	
  Third:

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

  
	
   

  	
   

  
	
  Fourth:

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

  



 


The
Trustee may fix a record date and payment date for any payment to Holders.


 


SECTION 6.11.
Undertaking for Costs. In any suit for the enforcement of any right or remedy
under this Indenture or in any suit against the Trustee for any action taken or
omitted by it as a Trustee, a court in its discretion may require the filing by
any party litigant in the suit of an undertaking to pay the costs of the suit,
and the court in its discretion may assess reasonable costs, including
reasonable attorneys’ fees, against any party litigant in the suit, having due
regard to the merits and good faith of the claims or defenses made by the party
litigant. This Section 6.11 does not apply to a suit by the Trustee, a
suit by a Holder pursuant to Section 6.06, or a suit by Holders of more
than 10% in principal amount of the then outstanding Notes.


 


SECTION 6.12.
Willful Default. In the case of an Event of Default occurring by reason of any
willful action (or inaction) taken (or not taken) by or on behalf of the
Company with the intention of avoiding payment of the premium that the Company
would have had to pay if the Company then had elected to redeem the Notes under
the provisions of Article 3 and under the Notes, an equivalent premium shall
also become and be immediately due and payable, to the extent permitted by law,
upon the acceleration of the Notes. If an Event of Default occurs prior to November 1,
2003 by reason of any willful action (or inaction) taken (or not taken) by or
on behalf of the Company with the intention of avoiding the prohibition on
redemption of the Notes prior to November 1, 2003, then, upon acceleration
of the Notes, an additional premium shall also become and be immediately due
and payable, to the extent permitted by law, in an amount equal to 10.0%.


 


65

















 


ARTICLE
7


 


TRUSTEE


 


SECTION 7.01.
Duties of Trustee. (a) If an Event of Default occurs (and has not been
cured) the Trustee shall (i) exercise the rights and powers vested in it
by this Indenture, and (ii) use the same degree of care and skill in
exercising such rights and powers as a prudent man would exercise or use under
the circumstances in the conduct of his own affairs.


 


(b) Except
during the continuance of an Event of Default: (i) the Trustee’s duties
shall be determined solely by the express provisions of this Indenture and the
Trustee need perform only those duties that are specifically set forth in this
Indenture and no others, and no implied covenants or obligations shall be read
into this Indenture against the Trustee; and (ii) in the absence of bad
faith on its part, the Trustee may conclusively rely, as to the truth of the
statements and the correctness of the opinions expressed therein, upon
certificates or opinions furnished to the Trustee and conforming to the
requirements of this Indenture. However, the Trustee shall examine the
certificates and opinions required to be delivered under this Indenture to
determine whether they conform to this Indenture’s requirements.


 


(c) The
Trustee shall not be relieved from liability for its own negligent action, its
own negligent failure to act, or its own willful misconduct, except that: (i) this
Section 7.01(c) does not limit the effect of Section 7.01(b); (ii) 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 (iii) 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 it receives pursuant to Section 6.05. Unless
otherwise specifically provided in this Indenture, any demand, request,
direction or notice from the Company shall be sufficient if signed by an Officer
of the Company.


 


(d) Every
provision of this Indenture that in any way relates to the Trustee shall be
subject to paragraphs (a), (b) and (c) of this Section 7.01.


 


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


 


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


 


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SECTION 7.02.
Rights of Trustee. (a) The Trustee may rely on any document it reasonably
believes 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 any such
document.


 


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


 


(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) Subject
to Section 7.01, the Trustee shall not be liable for any action it takes
or omits to take in good faith that it believes to be authorized or within its
rights or powers.


 


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


 


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


 


SECTION 7.03.
Individual Rights of Trustee. The Trustee in its individual or any other
capacity may become the owner or pledgee of Notes and may otherwise deal with
the Company or any of its Affiliates with the same rights it would have if it
were not Trustee. The Trustee shall at all times comply with section 310(b) of
the TIA as in effect from time to time. Each Agent shall have the same rights
as the Trustee under this Section 7.03.


 


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 Notes;
it shall not be accountable for the Company’s use of the proceeds from the
Notes, and it shall not be responsible for any statement or recital in this
Indenture or any statement in the Notes or any other document executed in
connection with the sale of the Notes or pursuant to this Indenture other than
its certificate of authentication.


 


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SECTION 7.05.
Notice to Holders of Defaults and Events of Default. If a Default or Event of
Default occurs and is continuing and if it is known to the Trustee, the Trustee
shall mail to the Holders a notice of the Default or Event of Default within 30
days after the occurrence thereof. Except in the case of a Default or Event of
Default in payment of principal or interest or Additional Interest, if any, on
any Note (including any failure to redeem Notes called for redemption or any
failure to purchase Notes that are tendered pursuant to an Offer and that are
required to be purchased by the terms of this Indenture), the Trustee may
withhold the notice if and so long as a committee of its Trust Officers
determines in good faith that withholding such notice is in the Holders’
interests.


 


SECTION 7.06.
Reports by Trustee to Holders. Within 60 days after each May 15 beginning
with May 15, 1999, the Trustee shall mail to the Holders a brief report
dated as of such reporting date that complies with section 313(a) of the
TIA (but if no event described in section 313(a) of the TIA has occurred
within the twelve months preceding the reporting date, no report need be
transmitted). The Trustee also shall comply with section 313(b)(2) of the
TIA. The Trustee shall also transmit by mail all reports as required by section
313(c) of the TIA.


 


Commencing
at the time this Indenture is qualified under the TIA, a copy of each report at
the time of its mailing to Holders shall be filed with the Commission and each
stock exchange on which the Notes are listed. The Company shall notify the
Trustee when the Notes are listed on any stock exchange.


 


SECTION 7.07.
Compensation and Indemnity. The Company shall pay to the Trustee from time to
time such compensation for its services hereunder as the parties shall agree in
writing from time to time. The Trustee’s compensation shall not be limited by
any law on compensation of a trustee of an express trust. The Company shall
reimburse the Trustee upon request for all reasonable disbursements, advances
and expenses it incurs or makes in addition to the compensation for its
services. Such expenses shall include the reasonable compensation,
disbursements, advances, collection costs and expenses of the Trustee’s agents
and counsel.


 


The
Company shall indemnify the Trustee for, from and against any and all losses,
liabilities or expenses (including reasonable attorney’s fees and expenses) the
Trustee incurs arising out of or in connection with the acceptance or
administration of its duties under this Indenture (including any expenses
incurred in connection with the performance of its duties under Section 6.08),
except as set forth below. The Trustee shall notify the Company promptly of any
claim for which it may seek indemnity; provided, however, that failure by the
Trustee to provide the Company with any such notice shall not relieve the
Company of any of its obligations under this Section 7.07 except to the
extent that the Company has been prejudiced by such failure. The Company shall
defend the claim and the Trustee shall cooperate in the defense of any such
claim. If, in the reasonable judgment of the Trustee’s counsel, the


 


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Trustee has an interest
adverse to the Company or a potential conflict of interest exists between the
Trustee and the Company, the Trustee may have separate counsel and the Company
shall pay the reasonable fees and expenses of such counsel. The Company need
not pay for any settlement made without its consent, which consent shall not be
unreasonably withheld.


 


The
Company’s obligations under this Section 7.07 shall survive the
satisfaction and discharge of this Indenture. The Company need not reimburse
any expense or indemnify against any loss or liability the Trustee incurs
through the Trustee’s negligence or bad faith.


 


To
secure payment of the Company’s obligations under this Section 7.07, the
Trustee shall have a Lien prior to the Notes on all money or property the
Trustee holds or collects, except that held in trust to pay principal of, and premium,
if any, interest and Additional Interest, if any, on, particular Notes. Such
Lien shall survive the satisfaction and discharge of this Indenture. The
Trustee’s right to receive payments due under this Section 7.07 shall not
be subordinate to any other liability or indebtedness of the Company.


 


When
the Trustee incurs expenses or renders services after an Event of Default
specified in Section 6.01(a)(vii) occurs, the expenses and the
compensation for the services (including the fees and expenses of its agents
and counsel) are intended to constitute administrative expenses under any
Bankruptcy Law without any need to demonstrate substantial contribution under
Bankruptcy Law.


 


SECTION 7.08.
Replacement of Trustee. A resignation or removal of the Trustee and appointment
of a successor Trustee shall become effective only upon the successor Trustee’s
acceptance of appointment as provided in this Section 7.08.


 


The
Trustee may resign and be discharged from the trust hereby created by so
notifying the Company in writing. The Holders of a majority in aggregate
principal amount of the then outstanding Notes may remove the Trustee by so
notifying the Trustee and the Company in writing. The Company may remove the
Trustee if: (i) the Trustee fails to comply with Section 7.10; (ii) the
Trustee is adjudged a bankrupt or an insolvent or an order for relief is
entered with respect to the Trustee under any Bankruptcy Law; (iii) a
Custodian or public officer takes charge of the Trustee or its property; or (iv) the
Trustee becomes incapable of performing the services of the Trustee hereunder.


 


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


 


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


 


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


 


A
successor Trustee shall deliver a written acceptance of its appointment to the
retiring Trustee and to the Company. Thereupon, the resignation or removal of
the retiring Trustee shall become effective and the successor Trustee shall
have all the rights, powers and duties of the Trustee under this Indenture. The
successor Trustee shall mail a notice of its appointment to Holders. The
retiring Trustee shall promptly transfer all property it holds as Trustee to
the successor Trustee, subject to its rights under Section 7.07 and
provided that all sums owing to the retiring Trustee hereunder have been paid.
Notwithstanding replacement of the Trustee pursuant to this Section 7.08,
the Company’s obligations under Section 7.07 shall continue for the
retiring Trustee’s benefit with respect to expenses and liabilities relating to
the retiring Trustee’s activities prior to being replaced.


 


SECTION 7.09.
Successor Trustee by Merger, Etc. If the Trustee consolidates, merges or
converts into, or transfers all or substantially all of its corporate trust
business to, another corporation, subject to Section 7.10, the successor
corporation without any further act shall be the successor Trustee.


 


SECTION 7.10.
Eligibility; Disqualification. The Trustee shall at all times (i) be a corporation
organized and doing business under the laws of the United States of America, of
any state thereof, or the District of Columbia authorized under such laws to
exercise corporate trustee power, (ii) be subject to supervision or
examination by federal or state authority, (iii) have a combined capital
and surplus of at least $50 million as set forth in its most recent published
annual report of condition, and (iv) satisfy the requirements of sections
310(a) and 310(b) of the TIA.


 


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


 


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ARTICLE
8


 


DISCHARGE
OF INDENTURE


 


SECTION 8.01.
Discharge of Liability on Notes; Defeasance. (a) Subject to Sections 8.01(c) and
8.06, this Indenture shall cease to be of any further effect after (i) either
the Company has delivered to the Trustee all outstanding Notes (other than
Notes replaced pursuant to Section 2.10) for cancellation or all
outstanding Notes have become due and payable and the Company has irrevocably
deposited with the Trustee or a Paying Agent U.S. Legal Tender and/or
Government Securities in an amount sufficient (without reinvestment thereof) to
pay when due all principal of, premium, if any, and interest and Additional
Interest, if any, on, all outstanding Notes (other than Notes replaced pursuant
to Section 2.09), and (ii) the Company pays all other sums payable
under this Indenture.


 


(b) Subject
to Sections 8.01(c), 8.02, and 8.06, the Company at any time may terminate (i) all
of its and the Guarantors’ obligations under this Indenture and the Notes (“LEGAL
DEFEASANCE”), or (ii) its obligations under Sections 4.02, 4.05, 4.07,
4.08, 4.09, 4.10, 4.11, 4.12, 4.13, 4.15, 4.16, 4.17, 4.18, 4.19(a), (b), (c) and
(d) and 5.01 (“COVENANT DEFEASANCE”). The Company may exercise Legal
Defeasance notwithstanding its prior exercise of Covenant Defeasance.


 


If
the Company exercises Legal Defeasance, payment of the Notes may not be
accelerated because of an Event of Default. If the Company exercises Covenant
Defeasance, payment of the Notes may not be accelerated because of an Event of
Default specified in 6.01 (a)(iii), (iv), (v) or (vi).


 


Upon
satisfaction of the conditions set forth in Section 8.02 and upon the
Company’s request (and at the Company’s expense), the Trustee shall acknowledge
in writing the discharge of those obligations that the Company has terminated.


 


(c) Notwithstanding
Sections 8.01(a) and (b), the Company’s obligations under Sections 2.03,
2.04, 2.05, 2.06, 2.07, 2.08, 2.10, 2.11, 2.12, 4.01, 4.04, 4.06, 4.14, 7.07,
7.08, 8.04, 8.05, and 8.06, and the obligations of the Trustee and the Paying
Agent under Section 8.04 shall survive until the Notes have been paid in
full. Thereafter, the Company’s obligations under Sections 7.07 and 8.05 and the
obligations of the Company, Trustee and Paying Agent under Section 8.04
shall survive.


 


SECTION 8.02.
Conditions to Defeasance. The Company may exercise either Legal Defeasance or
Covenant Defeasance only if:


 


(i) the Company irrevocably deposits with the Trustee, in trust, for
the benefit of the Holders of the Notes, cash in U.S. Legal Tender or
Government Securities,


 


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or
a combination thereof, in such amounts as will be sufficient, (x) in the
opinion of a nationally recognized firm of independent public accountants, to
pay the principal of, premium, if any, and interest and Additional Interest, if
any, on the outstanding Notes on the stated maturity or the date such payments
are due in accordance with the terms of the Notes or on the applicable,
redemption date, as the case may be, and (y) in the opinion of the Company
as stated in an Officers’ Certificate, to pay the Trustee Expenses. The Company
shall specify whether the Notes are being defeased to maturity or to a
particular redemption date;


 


(ii) in the case of Legal Defeasance, the Company shall have delivered
to the Trustee (1) an Opinion of Counsel reasonably acceptable to the
Trustee confirming that (x) the Company has received from, or there has
been published by, the Internal Revenue Service a ruling or (y) 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 will confirm that, the Holders of the outstanding Notes will
not recognize income, gain or loss for federal income tax purposes as a result
of such Legal Defeasance and will be subject to federal income tax on the same
amounts, in the same manner and at the same times as would have been the case
if such Legal Defeasance had not occurred and (2) an Opinion of Counsel to
the effect that (x) the deposit of the trust funds does not violate the
Investment Company Act of 1940 and (y) after the period ending on the
123rd day after the date of deposit, the trust funds will not be subject to the
effect of Section 547 of the Bankruptcy Code or Section 15 of the New
York Debtor and Creditor Law in a case commenced by or against the Company
under either such statute;


 


(iii) in the case of Covenant Defeasance, the Company shall have delivered
to the Trustee (1) an Opinion of Counsel in the United States reasonably
acceptable to the Trustee confirming that the Holders of the outstanding Notes
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 at the same times as would have been the
case if such Covenant Defeasance had not occurred and (2) an Opinion of
Counsel to the effect that (x) the deposit of the trust funds does not violate
the Investment Company Act of 1940 and (y) after the period ending on the
123rd day after the date of deposit, the trust funds will not be subject to the
effect of Section 547 of the United States Bankruptcy Code or Section 15
of the New York Debtor and Creditor Law in a case commenced by or against the Company
under either such statute;


 


(iv) no Default or Event of Default shall have occurred and be continuing
on the date of such deposit (other than a Default or Event of Default resulting
from the borrowing of funds to be applied to such deposit) or insofar as Events
of Default from 


 


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bankruptcy
or insolvency events are concerned, at any time in the period ending on the
123rd day after the date of deposit;


 


(v) such Legal Defeasance or Covenant Defeasance shall not result in
a breach or violation of, or constitute a Default under any material agreement
or instrument (other than this Indenture) to which the Company or any of its
Subsidiaries is a party or by which the Company or any of its Subsidiaries is
bound;


 


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


 


(vii) the Company shall have delivered to the Trustee an Officers’ Certificate
and an Opinion of Counsel, each stating that all conditions precedent relating
to the Legal Defeasance or the Covenant Defeasance have been complied with.


 


SECTION 8.03.
Application of Trust Money. The Trustee or Paying Agent shall hold in trust
U.S. Legal Tender and/or Government Securities deposited with it pursuant to
this Article 8. The Trustee or Paying Agent shall apply the deposited
money and the money from Government Securities in accordance with this
Indenture to the payment of principal of, and premium, if any, interest or
Additional Interest, if any, on, the Notes. Money deposited with the Trustee or
a Paying Agent pursuant to this Article 8 shall not be subject to the
provisions of Article 10.


 


SECTION 8.04.
Repayment to Company. After the Notes have been paid in full, the Trustee and
the Paying Agent shall promptly turn over to the Company any excess money or
Notes held by them.


 


Any
money deposited with the Trustee or a Paying Agent pursuant to this Article 8
for the payment of the principal of, premium, if any, interest or Additional
Interest, if any, on, any Note that remains unclaimed for two years after
becoming due and payable shall be paid to the Company on its request; and the
Holder of such Note shall thereafter, as an unsecured general creditor, look
only to the Company for payment thereof, and all liability of the Trustee or
such Paying Agent with respect to such money shall cease; provided, however,
that the Trustee or such Paying Agent, before being required to make any such
repayment, may at the expense of the Company cause to be published once, in The
New York Times and The Wall Street Journal (National Edition), notice that such
money remains unclaimed and that, after a date specified therein, which shall
not be less than 30 days from the date of such notification or publication, any
unclaimed balance of such money then remaining will be repaid to the Company.


 


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SECTION 8.05.
Indemnity for Government Securities. The Company shall pay and shall indemnify
the Trustee and any Paying Agent against any tax, fee or other charge imposed
on or assessed against U.S. Legal Tender and/or Government Securities deposited
with it pursuant to this Article 8 or the principal and interest received
on such U.S. Legal Tender and/or Government Securities.


 


SECTION 8.06.
Reinstatement. If the Trustee or Paying Agent is unable to apply any U.S. Legal
Tender or Government Securities 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 Obligations under this Indenture and the Notes
and the Guarantors’ Obligations under the Note Guarantees 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
U.S. Legal Tender or Government Securities in accordance with this Article 8;
provided, however, that if the Company or any Guarantor has made any payment of
principal of, or premium, if any, interest, or Additional Interest, if any, on,
any Notes because of the reinstatement of its Obligations under this Indenture
and the Notes or the Note Guarantees, the Company or such Guarantor, as the
case may be, shall be subrogated to the Holders’ rights to receive such payment
from the money or Government Securities held by the Trustee or Paying Agent.


 


ARTICLE
9


 


AMENDMENTS


 


SECTION 9.01.
Amendments and Supplements Permitted without Consent of Holders. (a) The
Company, the Guarantors and the Trustee may amend or supplement this Indenture
or the Notes without the consent of any Holder to: (i) cure any ambiguity,
defect or inconsistency; (ii) provide for uncertificated Notes in addition
to or in place of certificated Notes; (iii) provide for the assumption of
the obligations to the Holders of the Company or a Guarantor, as the case may
be, in the event of a merger or consolidation that is permitted by Article 5;
(iv) make any change that (1) would provide any additional rights or
benefits to the Holders or (2) does not adversely affect the legal rights
under this Indenture of any Holder; or (v) comply with the requirements of
the Securities and Exchange Commission in order to effect or maintain the
qualification of this Indenture under the TIA.


 


(b) Upon
the Company’s request, after receipt by the Trustee of a resolution of the
Board of Directors of the Company authorizing the execution of any amended or
supplemental indenture and the documents described in Section 9.06, the
Trustee shall join with the Company and the Guarantors in the execution of any
amended or supplemental indenture authorized or permitted by the terms of this
Indenture, but the Trustee shall not be obligated to


 


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enter into an amended or
supplemental indenture that adversely affects its own rights, duties or
immunities under this Indenture or otherwise.


 


SECTION 9.02.
Amendments and Supplements Requiring Consent of Holders. (a) Except as
otherwise provided in Section 9.01(a), this Indenture and the Notes may be
amended or supplemented with the written consent of the Holders of at least a
majority in aggregate principal amount of the Notes then outstanding (including
consents obtained in connection with a tender offer or exchange offer for the
Notes), and any existing Default or Event of Default or compliance with any
provision of this Indenture or the Notes may be waived (other than any
continuing Default or Event of Default in the payment of the principal of,
premium, if any, or interest on the Notes (except as set forth in (C)(iv) below))
with the consent of Holders of at least a majority in aggregate principal
amount of the then outstanding Notes (including consents obtained in connection
with a tender offer or exchange offer for the Notes); provided that:


 


(A) no such modification or amendment may, without the consent of the
Holders of at least 75% in aggregate principal amount of Notes then outstanding,
amend or modify the obligations of the Company under Section 4.15 (or the
definitions related thereto) that could adversely affect the rights of any
Holder of the Notes;


 


(B) no such modification or amendment may, without the consent of Holders
of at least 75% in aggregate principal amount of the Notes then outstanding,
amend or modify the obligations of the Company and Pro-Fac under Section 4.18
(or the definitions related thereto); and


 


(C) without the consent of each Holder affected, the Company and the
Trustee may not: (i) reduce the principal amount of Notes whose Holders
must consent to an amendment, supplement or waiver; (ii) reduce the
principal of or change the fixed maturity of any Note or alter the provisions
with respect to the redemption of the Notes; (iii) reduce the rate of or
change the time for payment of interest on any Note; (iv) waive a Default or Event
of Default in the payment of principal of or premium, if any, or interest on
the Notes (except a rescission of acceleration of the Notes by the Holders of
at least a majority in aggregate principal amount of the Notes and a waiver of
the payment default that resulted from such acceleration); (v) make any
Note payable in money other than that stated in the Notes; (vi) make any
change in the provisions of this Indenture relating to waivers of past Defaults
or of the right of Holders of Notes to receive payments of principal of or premium,
if any, or interest on the Notes; (vii) waive a redemption payment with
respect to any Note; (viii) take any action that would subordinate the
Notes or the Note Guarantees to any other Indebtedness of the Company or any of
Guarantors, respectively (except


 


75

















 


as
provided in Article 10), or otherwise affect the ranking of the Notes or
the Note Guarantees; or (ix) release any Guarantor from any of its payment
obligations under its Note Guarantee or this Indenture otherwise in accordance
with this Indenture.


 


(b) It
shall not be necessary for the consent of the Holders under this Section 9.02
to approve the particular form of any proposed amendment or waiver, but it
shall be sufficient if such consent approves the substance thereof. After an
amendment, supplement or waiver under this Section becomes effective, the
Company shall mail to each Holder affected thereby a notice briefly describing
the amendment, supplement or waiver. Any failure of the Company to mail such
notice, or any defect therein, shall not, however, in any way impair or affect
the validity of any such amended or supplemental indenture or waiver.


 


SECTION 9.03.
Compliance with TIA. Every amendment or supplement to this Indenture or the
Notes shall be set forth in an amended supplemental indenture that complies
with the TIA as then in effect.


 


SECTION 9.04.
Revocation and Effect of Consents. (a) Until an amendment, supplement or
waiver becomes effective, a consent to it by a Holder of a Note is a continuing
consent by the Holder and every subsequent Holder of a Note or portion of a
Note that evidences the same Indebtedness as the consenting Holder’s Note, even
if notation of the consent is not made on such Note. However, any such Holder
or subsequent Holder may revoke the consent as to its Note or portion of a Note
if the Trustee receives the notice of revocation before the date on which the
Trustee receives an Officers’ Certificate certifying that the Holders of the
requisite principal amount of Notes have consented to the amendment, supplement
or waiver.


 


(b) The
Company may, but shall not be obligated to, fix a record date for the purpose
of determining the Holders of Notes entitled to consent to any amendment or waiver.
If a record date is fixed, then notwithstanding the provisions of the
immediately preceding paragraph, those Persons who were Holders of Notes at
such record date (or their duly designated proxies), and only those Persons,
shall be entitled to consent to such amendment or waiver or to revoke any
consent previously given, whether or not such Persons continue to be Holders of
Notes after such record date. No consent shall be valid or effective for more
than 90 days after such record date unless consents from Holders of the
principal amount of Notes required hereunder for such amendment or waiver to be
effective shall have also been given and not revoked within such 90-day period.


 


(c) After
an amendment or waiver becomes effective, it shall bind every Holder, unless it
is of the type described in clause (C) of Section 9.02(a), in which
case the amendment or waiver shall only bind each Holder that consented to it
and every subsequent Holder of a Note that evidences the same debt as the
consenting Holder’s Note.


 


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SECTION 9.05.
Notation or Exchange of Notes. The Trustee may place an appropriate notation
about an amendment, supplement or waiver on any Note thereafter authenticated.
The Company in exchange for all Notes may issue and the Trustee shall
authenticate new Notes that reflect the amendment, supplement or waiver.
Failure to make the appropriate notation or issue a new Note shall not affect
the validity and effect of such amendment, supplement or waiver.


 


SECTION 9.06.
Trustee Protected. The Trustee shall sign any amendment or supplemental
indenture authorized pursuant to this Article 9 if the amendment does not
adversely affect the rights, duties, liabilities or immunities of the Trustee.
If it does, the Trustee may, but need not, sign it. In signing such amendment
or supplemental indenture, the Trustee shall be entitled to receive and,
subject to Section 7.01, shall be fully protected in relying upon, an
Officers’ Certificate and Opinion of Counsel pursuant to Sections 12.04 and
12.05 as conclusive evidence that such amendment or supplemental indenture is
authorized or permitted by this Indenture, that it is not inconsistent
herewith, and that it will be valid and binding upon the Company and the Guarantors
in accordance with its terms. Neither the Company nor any Guarantor may sign an
amendment or supplemental indenture until the Board of Directors of the Company
approves it.


 


ARTICLE
10


 


SUBORDINATION


 


SECTION 10.01.
Agreement to Subordinate. The Company and each Guarantor agrees, and each
Holder by accepting a Note agrees, that the payment by the Company of principal
of, and premium, if any, and interest and Additional Interest, if any, on, the
Notes, and by each Guarantor of such amounts under its Note Guarantee
(collectively, the “NOTE INDEBTEDNESS”), are subordinated to the prior payment
in full in cash when due of the principal of, and premium, if any, and accrued
and unpaid interest on and all other amounts owing in respect of all existing
and future Senior Indebtedness of the Company and of such Guarantor, as the
case may be.


 


SECTION 10.02.
Liquidation; Dissolution; Bankruptcy. Upon any payment or distribution to
creditors of the Company or any Guarantor of the assets of the Company or such
Guarantor, as the case may be, of any kind or character in a total or partial
liquidation or dissolution of the Company or such Guarantor, as the case may
be, or in a bankruptcy, reorganization, insolvency, receivership or similar
proceeding relating to the Company or such Guarantor, as the case may be,
whether voluntary or involuntary (including any assignment for the benefit of
creditors and proceedings for marshaling of assets and liabilities of the
Company or such Guarantor, as the case may be) (an “INSOLVENCY OR LIQUIDATION
PROCEEDING”), the holders of all Senior Indebtedness of the Company or such
Guarantor, as the case


 


77

















 


may be, then outstanding will
be entitled to payment in full in cash (including interest accruing subsequent
to the filing of petition of bankruptcy or insolvency at the rate specified in
the document relating to the applicable Senior Indebtedness, whether or not
such interest is an allowed claim enforceable against the Company or such Guarantor,
as the case may be, under applicable law) before the Holders of Notes are
entitled to receive any payment on or with respect to the Note Indebtedness
from the Company or such Guarantor, as the case may be, and until all Senior
Indebtedness of the Company or such Guarantor, as the case may be, receives
payment in full in cash, any distribution to which the Holders of Notes would
be entitled will be made to holders of Senior Indebtedness of the Company or
such Guarantor, as the case may be.


 


SECTION 10.03.
No Payment on Notes in Certain Circumstances. (a) Upon the occurrence of
any default in the payment of any principal of or interest on or other amounts
due on any Designated Senior Indebtedness of the Company or any Guarantor (a “PAYMENT
DEFAULT”), no payment of any kind or character shall be made by the Company or
such Guarantor, as the case may be, (or by any other Person on its or their
behalf) with respect to the Note Indebtedness unless and until (i) such
Payment Default shall have been cured or waived in accordance with the
instruments governing such Designated Senior Indebtedness or shall have ceased
to exist, (ii) such Designated Senior Indebtedness has been discharged or
paid in full in cash in accordance with the instruments governing such Designated
Senior Indebtedness, or (iii) the benefits of this sentence have been
waived by the holders of such Designated Senior Indebtedness or their
Representative immediately after which the Company or such Guarantor, as the
case may be, must resume making any and all required payments, including missed
payments, in respect of its obligations under the Notes.


 


(b) Upon
(i) the occurrence and continuance of an event of default (other than a
Payment Default) relating to Designated Senior Indebtedness of the Company or
any Guarantor, as such event of default is defined therein or in the instrument
or agreement under which such Designated Senior Indebtedness is outstanding,
which event of default, pursuant to the instruments governing such Designated
Senior Indebtedness, entitles the holders (or a specified portion of the
holders) of such Designated Senior Indebtedness or their designated
representative to immediately accelerate without further notice (except such
notice as may be required to effect such acceleration) or the expiration of any
applicable grace period the maturity of such Designated Senior Indebtedness
(whether or not such acceleration has actually occurred) (a “NON-PAYMENT
DEFAULT”) and (ii) the receipt by the Trustee and the Company or such
Guarantor, as the case may be, from the trustee or other Representative of
holders of such Designated Senior Indebtedness of written notice (a “PAYMENT
BLOCKAGE NOTICE”) of such occurrence, no payment is permitted to be made by the
Company or such Guarantor, as the case may be, (or by any other Person on its
or their behalf) in respect of the Note Indebtedness for a period (a “PAYMENT
BLOCKAGE PERIOD”) commencing on the date of receipt by the Trustee of such
Payment Blockage Notice and ending on the earliest to occur of the following


 


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events (subject to any
blockage of payments that may then be in effect due to a Payment Default on
Designated Senior Indebtedness): (w) such Non-payment Default has been
cured or waived or has ceased to exist; (x) a 179-consecutive-day period
commencing on the date such Payment Blockage Notice is received by the Trustee
has elapsed; (y) such Payment Blockage Period has been terminated by
written notice to the Trustee from the trustee or other representative of
holders of such Designated Senior Indebtedness, whether or not such Non-payment
Default has been cured or waived or has ceased to exist; and (z) such
Designated Senior Indebtedness has been discharged or paid in full in cash, immediately
after which, in the case of clause (w), (x), (y) or (z), the Company or
such Guarantor, as the case may be, must resume making any and all required
payments, including missed payments, in respect of its obligations under the
Notes. Notwithstanding the foregoing, (A) not more than one Payment
Blockage Period may be commenced in any period of 360 consecutive days and (B) no
default or event of default with respect to the Designated Senior Indebtedness
of the Company or such Guarantor, as the case may be, that was the subject of a
Payment Blockage Notice which existed or was continuing on the date of the
giving of any Payment Blockage Notice shall be or serve as the basis for the
giving of a subsequent Payment Blockage Notice whether or not within a period
of 360 consecutive days unless such default or event of default shall have been
cured or waived for a period of at least 90 consecutive days after such date.
Notwithstanding anything in this Indenture to the contrary, in no event may the
total number of days during which any Payment Blockage Period or Periods are in
effect exceed 179 days in the aggregate during any 360 day consecutive period.


 


SECTION 10.04.
Acceleration of Notes. If payment of the Notes is accelerated because of an
Event of Default, the Company shall promptly notify each holder of the Senior
Indebtedness of the Company or any Guarantor of the acceleration.


 


SECTION 10.05.
When Distributions Must Be Paid Over. In the event that any payment or
distribution of assets of the Company or any Guarantor, whether in cash,
property or securities, shall be received by the Trustee or the Holders of
Notes at a time when such payment or distribution is prohibited by this Article 10,
such payment or distribution shall be segregated from other funds or assets and
held in trust for the benefit of the holders of Senior Indebtedness of the
Company or such Guarantor, as the case may be, and shall be paid or delivered
by the Trustee or such Holders, as the case may be, to the holders of the
Senior Indebtedness of the Company or such Guarantor, as the case may be,
remaining unpaid or unprovided for or their representative or representatives,
or to the trustee or trustees under any indenture pursuant to which any
instruments evidencing any of such Senior Indebtedness of the Company or such
Guarantor, as the case may be, may have been issued, ratably according to the
aggregate amounts remaining unpaid on account of the Senior Indebtedness of the
Company or such Guarantor, as the case may be, held or represented by each, for
application to the payment of all Senior Indebtedness of the Company or such
Guarantor, as the case may be, remaining unpaid, to the extent necessary to pay
or to provide for the payment in full in


 


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cash of all such Senior
Indebtedness after giving effect to any concurrent payment or distribution to
the holders of such Senior Indebtedness.


 


With
respect to the holders of Senior Indebtedness of the Company or any Guarantor,
the Trustee undertakes to perform only such obligations on its part as are
specifically set forth in this Article 10, and no implied covenants or
obligations with respect to any holders of the Senior Indebtedness of the
Company or any Guarantor shall be read into this Indenture against the Trustee.
The Trustee shall not be deemed to owe any fiduciary duty to the holders of the
Senior Indebtedness of the Company or any Guarantor and shall not be liable to
any holders of such Senior Indebtedness if the Trustee shall pay over or
distribute to, or on behalf of, Holders or the Company or any other Person,
money or assets to which any holders of such Senior Indebtedness are entitled
pursuant to this Article 10, except if such payment is made at a time when
a Trust Officer has knowledge that the terms of this Article 10 prohibit
such payment.


 


SECTION 10.06.
Notice. Neither the Trustee nor the Paying Agent shall at any time be charged
with the knowledge of the existence of any facts that would prohibit the making
of any payment to or by the Trustee or Paying Agent under this Article 10,
unless and until the Trustee or Paying Agent shall have received written notice
thereof from the Company or such Guarantor or one or more holders of the Senior
Indebtedness of the Company or such Guarantor, as the case may be, or a
Representative of any holders of such Senior Indebtedness; and, prior to the
receipt of any such written notice, the Trustee or Paying Agent shall be
entitled to assume conclusively that no such facts exist. The Trustee shall be
entitled to rely on the delivery to it of written notice by a Person
representing itself to be a holder of the Senior Indebtedness of the Company or
a Guarantor (or a Representative thereof) to establish that such notice has
been given.


 


The
Company shall promptly notify the Trustee and the Paying Agent in writing of
any facts it knows that would cause a payment of principal of, or premium, if
any, or interest (including Additional Interest, if any) on, the Notes or any
other Obligation in respect of the Notes to violate this Article 10, but
failure to give such notice shall not affect the subordination of the Notes to
the Senior Indebtedness of the Company or any Guarantor provided in this Article 10
or the rights of holders of such Senior Indebtedness under this Article 10.


 


SECTION 10.07.
Subrogation. After all Senior Indebtedness of the Company or any Guarantor has
been paid in full in cash and until the Notes are paid in full, Holders shall
be subrogated (equally and ratably with all other Indebtedness pari passu with
the Notes) to the rights of holders of such Senior Indebtedness to receive
distributions applicable to such Senior Indebtedness to the extent that
distributions otherwise payable to Holders have been applied to the payment of
such Senior Indebtedness. A distribution made under this Article 10 to
holders of the Senior Indebtedness of the Company or any Guarantor that
otherwise would have been made to Holders is not, as between the Company or
such Guarantor, as the


 


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case may be, and Holders, a
payment by the Company or such Guarantor, as the case may be, on its Senior
Indebtedness.


 


SECTION 10.08.
Relative Rights. This Article 10 defines the relative rights of Holders
and holders of the Senior Indebtedness of the Company or any Guarantor. Nothing
in this Indenture shall: (1) impair, as between the Company or a
Guarantor, as the case may be, and Holders, the Obligations of the Company or
any Guarantor, which are absolute and unconditional, to pay principal of, and
premium, if any, and interest (including Additional Interest, if any) on the
Notes in accordance with their terms; (2) affect the relative rights of
Holders and the creditors of the Company or any Guarantor other than their
rights in relation to holders of the Senior Indebtedness of the Company or any
Guarantor; or (3) prevent the Trustee or any Holder from exercising its
available remedies upon a Default or Event of Default, subject to the rights of
holders of the Senior Indebtedness of the Company or any Guarantor to receive
distributions and payments otherwise payable to Holders.


 


Nothing
contained in this Article 10 or elsewhere in this Indenture or in any Note
is intended to or shall impair, as between the Company, any Guarantor and the
Holders, the Obligations of the Company and the Guarantors, which are absolute
and unconditional, to pay to the Holders the principal of, and premium, if any,
and interest (including Additional Interest, if any) on the Notes as and when
the same shall become due and payable in accordance with their terms, or is
intended to or shall affect the relative rights of the Holders and creditors of
the Company and the Guarantors other than the holders of the Senior
Indebtedness of the Company or any Guarantor, nor shall anything herein or
therein prevent the Trustee or any Holder from exercising all remedies
otherwise permitted by applicable law upon Default under this Indenture,
subject to the rights, if any, under this Article 10 of the holders of
such Senior Indebtedness.


 


The
failure to make a payment on account of principal of, or interest on the Notes
by reason of any provision of this Article 10 shall not be construed as
preventing the occurrence of an Event of Default under Section 6.01.


 


SECTION 10.09.
The Company, Guarantors and Holders May Not Impair Subordination. (a) No
right of any holder of the Senior Indebtedness of the Company or any Guarantor
to enforce the subordination as provided in this Article 10 shall at any
time or in any way be prejudiced or impaired by any act or failure to act by
the Company or any Guarantor or by any noncompliance by the Company or any
Guarantor with the terms, provisions and covenants of this Indenture or the
Notes or any other agreement regardless of any knowledge thereof with which any
such holder may have or be otherwise charged.


 


(b) Without
in any way limiting Section 10.09(a), the holders of any Senior
Indebtedness of the Company or any Guarantor may, at any time and from time to
time to the extent not otherwise prohibited by this Indenture, without the
consent of or notice to any


 


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Holders, without incurring
any liabilities to any Holder and without impairing or releasing the
subordination and other benefits provided in this Indenture or the Holders’
obligations to the holders of such Senior Indebtedness, even if any Holder’s
right of reimbursement or subrogation or other right or remedy is affected,
impaired or extinguished thereby, do any one or more of the following: (i) amend,
renew, exchange, extend, modify, increase or supplement (to the extent
permitted under this Indenture) in any manner such Senior Indebtedness or any
instrument evidencing or guaranteeing or securing such Senior Indebtedness or
any agreement under which such Senior Indebtedness is outstanding (including,
but not limited to, changing the manner, place or terms of payment or changing
or extending the time of payment of, or renewing, exchanging, amending,
increasing or altering (to the extent permitted under this Indenture), (x) the
terms of such Senior Indebtedness, (y) any security for, or any Guarantee
of, such Senior Indebtedness, (z) any liability of any obligor on such
Senior Indebtedness (including any guarantor) or any liability incurred in
respect of such Senior Indebtedness); (ii) sell, exchange, release,
surrender, realize upon, enforce or otherwise deal with in any manner and in
any order any property pledged, mortgaged or otherwise securing such Senior
Indebtedness or any liability of any obligor thereon, to such holder, or any
liability incurred in respect thereof; (iii) settle or compromise any such
Senior Indebtedness or any other liability of any obligor of such Senior
Indebtedness to such holder or any security therefor or any liability incurred
in respect thereof and apply any sums by whomsoever paid and however realized
to any liability (including, without limitation, payment of any of the Senior
Indebtedness) in any manner or order; and (iv) fail to take or to record
or otherwise perfect, for any reason or for no reason, any lien or security
interest securing such Senior Indebtedness by whomsoever granted, exercise or
delay in or refrain from exercising any right or remedy against any obligor or
any guarantor or any other Person, elect any remedy and otherwise deal freely
with any obligor and any security for such Senior Indebtedness or any liability
of any obligor to the holders of such Senior Indebtedness or any liability
incurred in respect of such Senior Indebtedness.


 


SECTION 10.10.
Distribution or Notice to Representative. Whenever a distribution is to be
made, or a notice given, to holders of Senior Indebtedness of the Company or
any Guarantor, the distribution may be made and the notice given to their
Representative, if any. If any payment or distribution of the Company’s assets
is required to be made to holders of any of the Senior Indebtedness of the
Company or any Guarantor pursuant to this Article 10, the Trustee and the
Holders shall be entitled to rely upon any order or decree of any court of
competent jurisdiction, or upon any certificate of a Representative of such
Senior Indebtedness or a Custodian, in ascertaining the holders of such Senior
Indebtedness entitled to participate in any such payment or distribution, the
amount to be paid or distributed to holders of such Senior Indebtedness and all
other facts pertinent to such payment or distribution or to this Article 10.


 


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SECTION 10.11.
Rights of Trustee and Paying Agent. The Trustee or Paying Agent may continue to
make payments on the Notes unless prior to any payment date it has received
written notice of facts that would cause a payment of principal of, or premium,
if any, or interest (including Additional Interest, if any) on the Notes to
violate this Article 10. Only the Company, a Guarantor, a Representative
of Senior Indebtedness, or a holder of Senior Indebtedness that has no
Representative may give such notice.


 


To
the extent permitted by the TIA, the Trustee in its individual or any other
capacity may hold Indebtedness of the Company or any Guarantor (including
Senior Indebtedness) with the same rights it would have if it were not Trustee.
Any Agent may do the same with like rights.


 


SECTION 10.12.
Trust Moneys Not Subordinated; Permitted Junior Securities. Notwithstanding
anything contained herein to the contrary, (x) payments of U.S. Legal
Tender or the proceeds of Government Securities held in trust under Article 8
by the Trustee for the payment of principal of and interest on the Notes shall
not be subordinated to the prior payment of any Senior Indebtedness or subject to
the restrictions set forth in this Article 10 and (y) Holders of
Notes may receive and retain Permitted Junior Securities, and no such receipt
or retention will be contractually subordinated in right of payment to any
Senior Indebtedness or subject to the restrictions described in this Article 10,
and none of the Holders shall be obligated to pay over any such amount to the
Company or any Guarantor, any holder of Senior Indebtedness of the Company or
any Guarantor or any other creditor of the Company or any Guarantor.


 


SECTION 10.13.
Authorization to Effect Subordination. Each Holder of a Note by its acceptance
thereof authorizes and directs the Trustee on its behalf to take such action as
may be necessary or appropriate to effectuate the subordination as provided in
this Article 10, and appoints the Trustee as such Holder’s
attorney-in-fact for any and all such purposes (including, without limitation,
the timely filing of a claim for the unpaid balance of the Note that such
Holder holds in the form required in any Insolvency or Liquidation Proceeding
and causing such claim to be approved).


 


If
a proper claim or proof of debt in the form required in such proceeding is not
filed by or on behalf of all Holders prior to 30 days before the expiration of
the time to file such claims or proofs, then the holders or a Representative of
any Senior Indebtedness of the Company or any Guarantor are hereby authorized,
and shall have the right (without any duty), to file an appropriate claim for
and on behalf of the Holders.


 


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ARTICLE 11


 


GUARANTEE


 


SECTION 11.01.
Guarantee. Each Guarantor hereby unconditionally, jointly and severally,
guarantees (each a “NOTE GUARANTEE”) to each Holder of a Note authenticated and
delivered by the Trustee that: (i) the principal of, premium and interest
(including Additional Interest, if any) on the Notes will be promptly paid in
full when due, whether at maturity, by acceleration, redemption, upon an Offer
or otherwise, and interest on the overdue principal of and interest (including
Additional Interest, if any), and premium, if any, on the Notes, if any, to the
extent lawful, and all other Obligations of the Company to the Holders or the
Trustee under this Indenture and the Notes will be promptly paid in full, all
in accordance with the terms of this Indenture and the Notes; and (ii) in
case of any extension of time of payment or renewal of any Notes or any of such
other Obligations, that the Notes will be promptly paid in full when due in accordance
with the terms of such extension or renewal, whether at stated maturity, by
acceleration or otherwise.


 


Each
Guarantor hereby further agrees that its Obligations under this Indenture and
the Notes shall, subject to Section 11.05, be unconditional, regardless of
the validity, legality or enforceability of this Indenture or the Notes, the
absence of any action to enforce this Indenture or the Notes, any waiver or
consent by any Holder with respect to any provisions this Indenture or the
Notes, any modification or amendment of, or supplement of, this Indenture or
the Notes, the recovery of any judgment against the Company or any action to
enforce any such judgment, or any other circumstance that might otherwise
constitute a legal or equitable discharge or defense of such Guarantor. Each
Guarantor hereby waives diligence, presentment, demand of payment, filing of
claims with a court in the event of insolvency or bankruptcy of the Company,
any right to require a proceeding first against the Company, protest, notice
and all demands whatsoever and covenants that its Note Guarantee will not be
discharged except by complete performance by the Company of such Obligations.
If any Holder or the Trustee is required by any court or otherwise to return to
the Company, such Guarantor or a Custodian of the Company or such Guarantor any
amount paid by the Company or such Guarantor to the Trustee or such Holder, its
Note Guarantee shall, to the extent previously discharged as a result of any
such payment, be immediately reinstated and be in full force and effect. Each
Guarantor hereby acknowledges and agrees that, as between it, on the one hand,
and the Holders and the Trustee, on the other hand, (x) the maturity of
the Company’s Obligations under this Indenture and the Notes may be accelerated
as provided in Article 6 for purposes of its Note Guarantee
notwithstanding any stay, injunction or other prohibition preventing such
acceleration, and (y) in the event of any declaration of acceleration of
the Company’s Obligations under this Indenture and the Notes as provided in Article 6,
such Obligations (whether or not due and payable) shall forthwith become due
and payable by such Guarantor for the purpose of its Note Guarantee.


 


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SECTION 11.02.
Trustee to Include Paying Agent. In case at any time any Paying Agent other
than the Trustee shall have been appointed by the Company, the term “Trustee”
as used in this Article 11 shall (unless the context shall otherwise
require) be construed as extending to and including such Paying Agent within
its meaning as fully and for all intents and purposes as if such Paying Agent
were named in this Article 11 in place of the Trustee.


 


SECTION 11.03.
Subordination of Guarantee. Each Guarantor’s Obligations under its Note
Guarantee shall be junior and subordinated in right of payment to any Senior
Indebtedness of such Guarantor in the same manner and to the same extent as the
Notes are subordinated to Senior Indebtedness of the Company pursuant to Article 10.


 


SECTION 11.04.
Limits of Guarantee. Notwithstanding anything to the contrary in this Article 11,
the aggregate amount of the Obligations guaranteed under this Indenture by each
Guarantor shall be limited in amount to the maximum amount that would not
render such Guarantor’s obligations subject to avoidance under applicable
fraudulent conveyance provisions of the Bankruptcy Code or any comparable
provision of any applicable state law.


 


SECTION 11.05.
Severability.  In case any provision of this
Note Guarantee shall be invalid, illegal or unenforceable, the validity,
legality, and enforceability of the remaining provisions shall not in any way
be affected or impaired thereby.


 


SECTION 11.06.
Subrogation. Upon making any payment with respect to the Company hereunder,
each Guarantor shall be subrogated to the rights of the payee against the
Company with respect to such payment; provided that no Guarantor shall enforce
any payment by way of subrogation or contribution until all Obligations of the
Company under this Indenture have been paid in full. If any amount shall be
paid to any Guarantor in violation of the preceding sentence and the Notes
shall not have been paid in full, such amount shall have been deemed to have
been paid to such Guarantor for the benefit of, and held in trust for the
benefit of, the Holders of the Notes, and shall, subject to the provisions of Section 11.03,
forthwith be paid to the Trustee for the benefit of such Holders to be credited
and applied upon the Notes, whether matured or unmatured, in accordance with
terms of this Indenture. Each Guarantor acknowledges that it will receive
direct and indirect benefits from the financing arrangements contemplated by
this Indenture and that the waiver set forth in this Section 11.06 is
knowingly made in contemplation of such benefits.


 


SECTION 11.07.
Execution of Guarantee. To evidence their Note Guarantee to the Noteholders
specified in Section 11.01, the Guarantors hereby agree to execute the
Note Guarantee in substantially the form of EXHIBIT E, which shall be endorsed
on each Note ordered to be authenticated and delivered by the Trustee. Each
Guarantor hereby agrees that its Note Guarantee set forth in Section 11.01
shall remain in full force and effect notwithstanding


 


85

















 


any failure to endorse on
each Note a notation of such Note Guarantee. Each such Note Guarantee shall be
signed on behalf of each Guarantor by two Officers, or an Officer and an
Assistant Secretary or one Officer shall sign and one Officer or an Assistant
Secretary (each of whom shall, in each case, have been duly authorized by all
requisite corporate actions) shall attest to such Note Guarantee prior to the
authentication of the Note on which it is endorsed, and the delivery of such
Note by the Trustee, after the authentication thereof hereunder, shall
constitute due delivery of such Note Guarantee on behalf of such Guarantor.
Such signatures upon the Note Guarantee may be by manual or facsimile signature
of such officers and may be imprinted or otherwise reproduced on the Note
Guarantee, and in case any such officer who shall have signed the Note
Guarantee shall cease to be such officer before the Note on which such Note
Guarantee is endorsed shall have been authenticated and delivered by the
Trustee or disposed of by the Company, such Note nevertheless may be
authenticated and delivered or disposed of as though the person who signed the
Note Guarantee had not ceased to be such officer of the Guarantor.


 


SECTION 11.08.
Release of Guarantor. A Subsidiary Guarantor shall be released from all of its
obligations under its Guarantee if:


 


(i) all of the assets or Capital Stock of such Subsidiary Guarantor
have been sold or otherwise disposed of in a transaction in compliance with the
terms of this Indenture (including, without limitation, Section 4.16); or


 


(ii) the Subsidiary Guarantor is designated an Unrestricted Subsidiary
in compliance with the terms of this Indenture (including Section 4.05);


 


and in each such case, the
Company has delivered to the Trustee an Officers’ Certificate and an Opinion of
Counsel, each stating that all conditions precedent herein provided for
relating to such transactions have been complied with and that such release is
authorized and permitted hereunder.


 


The
Trustee shall execute any documents reasonably requested by the Company or a
Guarantor in order to evidence the release of such Guarantor from its
obligations under its Guarantee endorsed on the Notes and under this Article 11.


 


ARTICLE 12


 


MISCELLANEOUS


 


SECTION 12.01.
Trust Indenture Act Controls. If any provision of this Indenture limits,
qualifies, or conflicts with the duties imposed by operation of Section 318(c) of
the TIA, the imposed duties shall control.


 


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SECTION 12.02.
Notices. Any notice or communication by the Company, any Guarantor or the
Trustee to the other is duly given if in writing and delivered in person,
mailed by registered or certified mail, postage prepaid, return receipt
requested or delivered by telecopier or overnight air courier guaranteeing next
day delivery to the other’s address:


 


If
to the Company or the Guarantors:


 


Agrilink
Foods, Inc.


90
Linden Oaks


Rochester,
New York 14602


Telecopier:
(716) 383-1606


Attention:
President


 


If
to the Trustee:


 


IBJ
Schroder Bank & Trust Company


One
State Street


New
York, New York 10004


Telecopier:
(212) 858-2952


 


Attention:
Corporate Finance Trust Services


 


The
Company or the Trustee by notice to the other may designate additional or
different addresses for subsequent notices or communications.


 


All
notices and communications (other than those sent to Holders) shall be deemed
to have been duly given: (i) at the time delivered by hand, if personally
delivered; (ii) the date receipt is acknowledged, if mailed by registered
or certified mail; (iii) when answered back, if telecopied and (iv) the
next Business Day after timely delivery to the courier, if sent by overnight
air courier guaranteeing next day delivery.


 


Any
notice or communication to a Holder shall be mailed by first-class mail to his
or her address shown on the register maintained by the Registrar. Failure to
mail a notice or communication to a Holder or any defect in it shall not affect
its sufficiency with respect to other Holders. If a notice or communication is
mailed in the manner provided above within the time prescribed, it is duly
given, whether or not the addressee receives it. If the Company mails a notice
or communication to Holders, it shall mail a copy to the Trustee and each Agent
at the same time.


 


SECTION 12.03.
Communication by Holders with Other Holders. Holders may communicate pursuant
to section 312(b) of the TIA with other Holders with respect to their
rights under this Indenture or the Notes. The Company, the Trustee, the
Registrar and any other Person shall have the protection of section 312(c) of
the TIA.


 


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SECTION 12.04.
Certificate and Opinion As to Conditions Precedent. Upon any request or application
by the Company to the Trustee to take any action under this Indenture, the
Company shall furnish to the Trustee, at the Trustee’s request: (a) an
Officers’ Certificate (which shall include the statements set forth in Section 12.05)
stating that, in the opinion of the signers, all conditions precedent and
covenants, if any, provided for in this Indenture relating to the proposed
action have been complied with and (b) an Opinion of Counsel (which shall
include the statements set forth in Section 12.05) stating that, in the
opinion of such counsel, all such conditions precedent provided for in this
Indenture relating to the proposed action have been complied with.


 


SECTION 12.05.
Statements Required in Certificate or Opinion. Each certificate or opinion with
respect to compliance with a condition or covenant provided for in this
Indenture (other than a certificate provided pursuant to section 314(a)(4) of
the TIA) shall include: (1) a statement that the Person making such
certificate or opinion has read such covenant or condition; (2) a brief
statement as to the nature and scope of the examination or investigation upon
which the statements or opinions contained in such certificate or opinion are
based; (3) a statement that, in the opinion of such Person, he has made
such examination or investigation as is necessary to enable him to express an
informed opinion as to whether or not such covenant or condition has been
complied with, and (4) a statement as to whether, in such Person’s
opinion, such condition or covenant has been complied with.


 


SECTION 12.06.
Rules by Trustee and Agents. The Trustee may make reasonable rules for
action by or at a meeting of Holders. The Registrar or Paying Agent may make
reasonable rules and set reasonable requirements for its functions.


 


SECTION 12.07.
Legal Holidays. If a payment date is a not a Business Day at a place of
payment, payment may be made at that place on the next succeeding day that is a
Business Day, and no interest shall accrue for the intervening period.


 


SECTION 12.08.
No Recourse Against Others. No director, officer, employee, incorporator or
direct or indirect stockholder or Affiliate of the Company or any Guarantor
(other than the Company and any Guarantor), as such, shall have any liability
for any obligation of the Company or such Guarantor under this Indenture, the
Note Guarantees or the Notes or for any claim based on, in respect of, or by
reason of, any such obligation or the creation of any such obligation. Each
Holder by accepting a Note waives and releases such Persons from all such
liability and such waiver and release is part of the consideration for the
issuance of the Notes.


 


SECTION 12.09.
Counterparts. This Indenture may be executed in any number of counterparts and
by the parties hereto in separate counterparts, each of which when so executed
shall be deemed to be an original and all of which taken together shall
constitute one and the same agreement.


 


88

















 


SECTION 12.10.
Initial Appointments, Compliance Certificates. The Company initially appoints
the Trustee as Paying Agent, Registrar (subject to Section 2.03 and 2.06)
and authenticating agent. The first compliance certificate to be delivered by
the Company to the Trustee pursuant to Section 4.03 shall be for the
fiscal year ending on June 26, 1999.


 


SECTION 12.11.
Governing Law. The laws of the State of New York shall govern this Indenture
and the Notes, without regard to conflict of laws provisions thereof.


 


SECTION 12.12.
No Adverse Interpretation of Other Agreements. This Indenture may not be used
to interpret another indenture, loan or debt agreement of the Company or any of
its Subsidiaries, and no other indenture, loan or debt agreement may be used to
interpret this Indenture.


 


SECTION 12.13.
Successors. All agreements of the Company and the Guarantors in this Indenture
and the Notes shall bind any successors of the Company and such Guarantors,
respectively. All agreements of the Trustee in this Indenture shall bind its
successor.


 


SECTION 12.14.
Severability. If any provision in this Indenture or in the Notes shall be
invalid, illegal or unenforceable, the validity, legality and enforceability of
the remaining provisions shall not in any way be affected or impaired thereby.


 


SECTION 12.15.
Third Party Beneficiaries. Holders of Senior Indebtedness are third party
beneficiaries of this Indenture, and any of them (or their Representative)
shall have the right to enforce the provisions of this Indenture that benefit
such holders.


 


SECTION 12.16.
Table of Contents, Headings, Etc. The Table of Contents and headings of the
Articles and Sections of this Indenture have been inserted for convenience of
reference only, are not to be considered a part of this Indenture, and shall in
no way modify or restrict any of the terms or provisions of this Indenture.


 


[Signature Pages Follow]


 


89

















 


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


 


	
   

  	
  AGRILINK FOODS, INC.

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ DENNIS M. MULLEN

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  
	
   

  	
   

  
	
   

  	
  PRO-FAC COOPERATIVE, INC.

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ EARL L. POWERS

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  
	
   

  	
   

  
	
   

  	
  LINDEN OAKS CORPORATION

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ TIMOTHY BENJAMIN

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  
	
   

  	
   

  
	
   

  	
  KENNEDY ENDEAVORS, INCORPORATED

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ EARL L. POWERS

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  
	
   

  	
   

  
	
   

  	
  IBJ SCHRODER
  BANK & TRUST COMPANY

  
	
   

  	
  as Trustee

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ TERENCE RAWLINS

  
	
   

  	
   

  	
  Name: TERENCE RAWLINS

  
	
   

  	
   

  	
  Title: ASSISTANT VICE
  PRESIDENT

  



 


S-1














 


EXHIBIT A


 


[FORM OF INITIAL NOTE]


 


THE
SECURITY (OR ITS PREDECESSOR) EVIDENCED HEREBY WAS ORIGINALLY ISSUED  IN A TRANSACTION
EXEMPT FROM REGISTRATION UNDER SECTION 5 OF THE U.S.  SECURITIES ACT
OF 1933, AS AMENDED (THE “SECURITIES ACT”), AND THE  SECURITY EVIDENCED HEREBY MAY NOT
BE OFFERED, SOLD OR OTHERWISE  TRANSFERRED IN THE ABSENCE OF
SUCH REGISTRATION OR AN APPLICABLE  EXEMPTION THEREFROM. EACH
PURCHASER OF THE SECURITY EVIDENCED HEREBY (1)  BY ITS ACQUISITION HEREOF
REPRESENTS THAT (A) IT IS A “QUALIFIED  INSTITUTIONAL BUYER” (AS
DEFINED IN RULE 144A UNDER THE SECURITIES ACT)  OR (B) IT IS NOT A U.S.
PERSON AND IS ACQUIRING THE SECURITY EVIDENCED  HEREBY IN AN OFFSHORE
TRANSACTION IN COMPLIANCE WITH REGULATION S UNDER  THE SECURITIES ACT AND (2) IS
HEREBY NOTIFIED THAT THE SELLER MAY BE  RELYING ON THE EXEMPTION FROM
THE PROVISIONS OF SECTION 5 OF THE  SECURITIES ACT PROVIDED BY
RULE 144A THEREUNDER OR ANOTHER EXEMPTION  UNDER THE SECURITIES ACT. THE
HOLDER OF THE SECURITY EVIDENCED HEREBY  AGREES FOR THE BENEFIT OF THE
ISSUER THAT PRIOR TO THE DATE WHICH IS TWO  YEARS AFTER THE LATER OF THE
DATE OF ORIGINAL ISSUANCE OF THIS NOTE AND  THE LAST DATE ON WHICH THE
COMPANY OR ANY AFFILIATE OF THE COMPANY WAS  THE OWNER OF THIS NOTE (THE “RESALE
RESTRICTION TERMINATION DATE”) (X)  SUCH SECURITY MAY BE
RESOLD, PLEDGED OR OTHERWISE TRANSFERRED ONLY: (i)  (a) TO A PERSON WHO 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, (b) IN A  TRANSACTION MEETING THE
REQUIREMENTS OF RULE 144 UNDER THE SECURITIES  ACT, (c) OUTSIDE THE
UNITED STATES TO A PERSON THAT IS NOT A U.S. PERSON  (AS DEFINED IN RULE 902 UNDER
THE SECURITIES ACT) IN A TRANSACTION  MEETING THE REQUIREMENTS OF
RULE 904 UNDER THE SECURITIES ACT OR (d) IN  ACCORDANCE WITH ANOTHER
EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF  THE SECURITIES ACT (AND BASED
UPON AN OPINION OF COUNSEL IF THE COMPANY  SO REQUESTS), (ii) TO
THE COMPANY OR (iii) PURSUANT TO AN EFFECTIVE  REGISTRATION STATEMENT AND,
IN EACH CASE, IN ACCORDANCE WITH ANY  APPLICABLE SECURITIES


 


A-1

















 


LAWS
OF ANY STATE OF THE UNITED STATES OR ANY OTHER APPLICABLE  JURISDICTION AND
(Y) THE HOLDER WILL, AND EACH SUBSEQUENT HOLDER IS  REQUIRED TO,
NOTIFY ANY PURCHASER FROM IT OF THE SECURITY EVIDENCED  HEREBY OF THE
RESALE RESTRICTIONS SET FORTH IN (X) ABOVE. THE FOREGOING  RESTRICTIONS ON
RESALE WILL NOT APPLY SUBSEQUENT TO THE RESALE  RESTRICTION TERMINATION DATE.


 


AGRILINK FOODS, INC.


11-7/8% SENIOR SUBORDINATED NOTES DUE 2008


 


	
  No.

  	
   

  	
  $

  
	
   

  	
   

  	
  [CUSIP][CINS] NO.

  	
   

  
					



 


Agrilink
Foods, Inc., a corporation duly organized and existing under the laws of
the State of New York (herein called the “COMPANY”, which term includes any
successor Person under the Indenture hereinafter referred to), for value
received, hereby promises to pay to
                                            ,
or registered assigns, the principal sum of
                                      
Dollars on November 1, 2008.


 


	
   

  	
  Interest Payment Dates:

  	
  May 1 and
  November 1, commencing

  
	
   

  	
   

  	
  May 1, 1999

  
	
   

  	
   

  	
   

  
	
   

  	
  Record Dates:.

  	
  April 15 and
  October 15

  
				



 


Pursuant
to the Indenture, the payment of principal of and premium, if any, and interest
and, if applicable, Additional Interest on this Note is unconditionally
guaranteed by Pro-Fac Cooperative, Inc., a cooperative corporation duly
organized and existing under the laws of the State of New York, and its
successors (“PRO-FAC”) and by the Subsidiary Guarantors (as defined in the
Indenture) (together with Pro-Fac, the “GUARANTORS”), and such other Persons as
may from time to time execute and deliver to the Trustee a counterpart of the
Indenture as a Subsidiary Guarantor.


 


Reference
is hereby made to the further provisions of this Note set forth on the reverse
hereof and as more fully specified in the Indenture, which further provisions
shall for all purposes have the same effect as if set forth at this place.


 


A-2

















 


IN
WITNESS WHEREOF, the Company has caused this instrument to be duly executed.


 


AGRILINK FOODS, INC.


 


 


	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  



 


Dated:       [                        ]


 


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


 


	
   

  	
   

  	
   

  
	
   

  	
  IBJ SCHRODER
  BANK & TRUST COMPANY

  
	
   

  	
   

  	
  as Trustee

  



 


 


	
  Dated:     [                      ]

  	
  By:

  	
   

  
	
   

  	
   

  	
  Authorized Signatory

  



 


A-3

















 


FORM OF REVERSE OF NOTE


 


1.
INTEREST. Agrilink Foods, Inc. (the “COMPANY”) promises to pay interest on
the principal amount of this Note at the rate and in the manner specified
below. Cash interest will accrue at 11-7/8% per annum until maturity and will
be payable semi-annually in arrears in cash on May 1 and November 1
of each year commencing May 1, 1999, or if any such day is not a Business
Day on the next succeeding Business Day (each an “INTEREST PAYMENT DATE”).
Interest on this Note will accrue from the most recent date on which interest
has been paid or, if no interest has been paid, from the original date of
issue. To the extent lawful, the Company shall pay interest on overdue
principal, premium, if any, interest and Additional Interest, if any, from time
to time on demand at the rate borne by this Note, compounded semi-annually.
Interest will be computed on the basis of a 360-day year of twelve 30-day
months.


 


In
the event that one or more Registration Defaults (as defined in the
Registration Rights Agreements) shall have occurred and be continuing under the
Registration Rights Agreement, then Additional Interest (as defined therein)
(in addition to the interest otherwise due hereon) will accrue on the principal
amount of the Transfer Restricted Securities (as defined therein) from and
including the date on which the first such Registration Default shall have
occurred to but excluding the date on which all such Registration Defaults have
been cured. All accrued Additional Interest, if any, will be paid by the
Company or the Guarantors, in arrears, on each Interest Payment Date.


 


2.
METHOD OF PAYMENT. The Company will pay interest on this Note to the Person who
is the registered Holder of this Note at the close of business on the record
date for the next Interest Payment Date, which record date shall be April 15
and October 15 of each year (each a “RECORD DATE”); notwithstanding the
foregoing, the first Record Date shall be April 15, 1999. Holders must
surrender Notes to a Paying Agent, as defined below, to collect principal
payments on such Notes. Principal of, premium, if any, interest and Additional
Interest, if any, on, the Notes will be payable at the office or agency of the
Company maintained for such purpose within the Borough of Manhattan in the City
and State of New York or, at the option of the Company by wire transfer of
immediately available funds or, in the case of certificated securities only, by
mailing a check to the registered address of the Holder. Until otherwise
designated by the Company, the Company’s office or agency will be the office of
the Trustee maintained for such purpose. The Company shall 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 (“U.S. LEGAL TENDER”).


 


3.
PAYING AGENT AND REGISTRAR. (a) IBJ Schroder Bank & Trust Company
(the “TRUSTEE”) will initially act as the Paying Agent and Registrar. The
Company may appoint additional paying agents or co-registrars, and change the
Paying Agent, any additional


 


A-4

















 


paying agent, the Registrar
or any co-registrar without prior notice to any Holder. The Company, any
Guarantor or any of their respective Affiliates may act in any such capacity
unless an Event of Default shall have occurred and be continuing.


 


(b) Pursuant
to the Indenture, the Company has appointed the Trustee as transfer and
exchange agent for the purpose of any transfer or exchange of the Notes.


 


(c) Holders
shall present Notes to the Trustee, as transfer and exchange agent, for
transfer and exchange.


 


4.
INDENTURE. The Company has issued the Notes under an Indenture, dated as of November 18,
1998 (the “INDENTURE”), among the Company, as issuer of the Notes, the
Guarantors party thereto and the Trustee. The terms of the Notes include those
stated in the Indenture and those made part of the Indenture by reference to
the Trust Indenture Act of 1939 (15 U.S. Code ss.ss. 77aaa-77bbbb) as in effect
on the date of the original issuance of the Notes (the “TRUST INDENTURE ACT”).
Capitalized terms used herein are used as defined in the Indenture unless
defined herein. The Notes are subject to, and qualified by, all such terms,
certain of which are summarized herein, and Holders are referred to the
Indenture and the Trust Indenture Act for a statement of such terms (all capitalized
terms not defined herein shall have the meanings assigned to them in the
Indenture). The Notes are unsecured general obligations of the Company limited
to $200,000,000 in aggregate principal amount.


 


5.
REDEMPTION PROVISIONS. (a) The Notes are not subject to any mandatory
sinking fund redemption prior to maturity.


 


(b) The
Notes may not be redeemed prior to November 1, 2003, but will be
redeemable at the option of the Company, in whole or in part, at any time on or
after November 1, 2003, at the following redemption prices (expressed as
percentages of principal amount), together with accrued and unpaid interest
thereon to the redemption date, if redeemed during the twelve-month period
beginning November 1:


 


	
   

  	
   

  	
  OPTIONAL

  	
   

  
	
   

  	
   

  	
  REDEMPTION

  	
   

  
	
  YEAR

  	
   

  	
  PRICE

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  2003

  	
   

  	
  105.938

  	
  %

  
	
  2004

  	
   

  	
  103.958

  	
  %

  
	
  2005

  	
   

  	
  101.979

  	
  %

  
	
  2006 and thereafter

  	
   

  	
  100.000

  	
  %

  



 


Notwithstanding
the foregoing, at any time prior to November 1, 2001, the Company may
redeem at its option up to 35% of the aggregate principal amount of the Notes originally
issued with the net cash proceeds of one or more Equity Offerings at a
redemption price equal to 111.875% of the principal amount thereof, plus
accrued and unpaid interest and Additional Interest, if any, to the redemption
date; provided that (a) at least $130 million in


 


A-5

















 


aggregate principal amount of
the Notes originally issued remains outstanding immediately after the
occurrence of any such redemption and (b) such redemption occurs within 60
days of the date of the closing of any such Equity Offering.


 


(c) If
less than all of the Notes are to be redeemed at any time, selection of the
Notes to be redeemed will be made by the Trustee from among the outstanding
Notes on a pro rata basis, by lot or by any other method permitted in the
Indenture. Notice of redemption will be mailed at least 30 days but not more
than 60 days before the redemption date to each holder whose Notes are to be
redeemed at the registered address of such holder. On and after the redemption
date, interest will cease to accrue on the Notes or portions thereof called for
redemption.


 


6.
MANDATORY OFFERS. (a) Upon the occurrence of a Change of Control, each
Holder of Notes will have the right to require that the Company repurchase such
Holder’s Notes, in whole or in part in integral multiples of $1,000 in
principal amount, for a cash purchase price equal to 101% of the principal
amount thereof plus accrued and unpaid interest (including Additional Interest,
if any), if any, to the date of repurchase, as provided in, and subject to the
terms of, the Indenture.


 


(b) The
Company is, subject to certain conditions, obligated to make an offer to
purchase Notes at 100% of their principal amount, plus accrued and unpaid
interest (including Additional Interest, if any), if any, thereon to the date
of repurchase with certain of the Net Available Proceeds of Asset Sales in
accordance with the Indenture.


 


7.
NOTES TO BE REDEEMED OR PURCHASED. The Notes may be redeemed or purchased in
part, but only in multiples of $1,000 principal amount unless all Notes held by
a Holder are to be redeemed or purchased. On or after any date on which Notes
are redeemed or purchased, interest ceases to accrue on the Notes or portions
thereof called for redemption or accepted for purchase on such date.


 


8.
DENOMINATIONS, TRANSFER, EXCHANGE. The Notes are in registered form, without
coupons, in denominations of $1,000 principal amount of maturity and integral
multiples thereof. The transfer of Notes may be registered and Notes may be
exchanged as provided in the Indenture. Holders seeking to transfer or exchange
their Notes may be required, among other things, to furnish appropriate
endorsements and transfer documents and to pay any taxes and fees required by
law or permitted by the Indenture. The Registrar need not exchange or register
the transfer of any Note or portion of a Note selected for redemption or
tendered pursuant to an Offer. Neither the Trustee nor the Registrar shall be
required (i) to register the transfer of or exchange any Note selected for
redemption, (ii) to register the transfer of or exchange any Note for a
period of 15 days before the mailing of a notice of redemption ending on the
date of such mailing, (iii) to register the transfer or exchange of a Note
between a Record Date and the next succeeding Interest Payment Date.


 


A-6

















 


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


 


10.
AMENDMENTS AND WAIVERS. (a) Subject to certain exceptions, the Indenture
and the Notes may be amended or supplemented with the written consent of the
Holders of at least a majority in aggregate principal amount of the then
outstanding Notes (including consents obtained in connection with a tender
offer or exchange offer for the Notes), and any existing Default or Event of
Default or compliance with any provision of the Indenture or the Notes may be
waived with the consent of the Holders of at least a majority in principal
amount of the then outstanding Notes (including consents obtained in connection
with a tender offer or exchange offer for the Notes).


 


(b) Notwithstanding
section 10(a) above, the Company, the Guarantors and the Trustee may amend
or supplement the Indenture or the Notes, without the consent of any Holder,
to: cure any ambiguity, defect or inconsistency; provide for uncertificated
Notes in addition to or in place of certificated Notes; provide for the
assumption of the obligations to the Holders of the Company, or the Guarantors,
as the case may be, in the event of any merger or reorganization involving the
Company, or a Guarantor, as the case may be, that is permitted under Article 5
of the Indenture; make any change that would provide any additional rights or
benefits to Holders or does not adversely affect the legal rights under the
Indenture of any Holder; or comply with the requirements of the Securities and
Exchange Commission (“SEC”) in order to effect or maintain the qualification of
the Indenture under the Trust Indenture Act.


 


11.
DEFAULTS AND REMEDIES. If an Event of Default occurs and is continuing, the
Trustee or the Holders of at least 25% in aggregate principal amount of Notes
then outstanding may declare all the Notes to be due and payable immediately in
the manner and with the effect provided in the Indenture. Holders of Notes may
not enforce the Indenture, the Notes or the Note Guarantees except as provided
in the Indenture. The Trustee is not obligated to enforce the Indenture, the
Notes or the Note Guarantees unless it has received indemnity satisfactory to
it. The Indenture permits, subject to certain limitations therein provided,
Holders of a majority in aggregate principal amount of the Notes then
outstanding to direct the Trustee in its exercise of any trust or power. The
Trustee may withhold from Holders notice of certain continuing Defaults or
Events of Default if it determines that withholding notice is in their
interest.


 


12.
SUBORDINATION. All Obligations owed under and in respect of the Notes are
subordinated in right of payment, to the extent and in the manner provided in Article 10
of the Indenture, to the prior payment in full in cash of all Obligations owed
under and in respect of all existing and future Senior Indebtedness of the
Company and of each Guarantor, and the subordination of the Notes is for the
benefit of all holders of all Senior Indebtedness, whether outstanding on the
Issue Date or incurred thereafter. The Company and each Guarantor agree, and
each Holder by accepting a Note agrees, to the subordination.


 


A-7

















 


13.
TRUSTEE DEALINGS WITH COMPANY. The Trustee in its individual or any other
capacity may become the owner or pledgee of Notes and may otherwise deal with
the Company or any of its Affiliates with the same rights it would have if it
were not Trustee.


 


14.
NO RECOURSE AGAINST OTHERS. No director, officer, employee, incorporator or
direct or indirect stockholder of the Company or any Guarantor (other than the
Company and any Guarantor), as such, shall have any liability for any
obligation of the Company or such Guarantor under the Indenture or the Notes or
Note Guarantees or for any claim based on, in respect of, or by reason of, any
such obligation or the creation of any such obligation. Each Holder by
accepting a Note waives and releases such Persons from all such liability, and
such waiver and release is part of the consideration for the issuance of the
Notes.


 


15.
DISCHARGE PRIOR TO REDEMPTION OR MATURITY. The Company and the Guarantors may
be discharged from their obligations under the Indenture, the Notes and the
Note Guarantees except for certain provisions thereof, and may be discharged
from obligations to comply with certain covenants contained in the Indenture,
the Notes and the Note Guarantees, in each case upon satisfaction of certain
conditions specified in the Indenture.


 


16.
RESTRICTIVE COVENANTS. The Indenture contains certain covenants that, among
other things, limit the ability of the Company and its Restricted Subsidiaries
to make restricted payments, to incur indebtedness, to create liens, to sell
assets, to permit restrictions on dividends and other payments by Restricted
Subsidiaries of the Company to the Company, to consolidate, merge or sell all
or substantially all of its assets or to engage in transactions with
affiliates. The limitations are subject to a number of important qualifications
and exceptions. The Company must annually report to the Trustee on compliance
with such limitations.


 


17.
GOVERNING LAW. This Note shall be governed by and construed in accordance with
the laws of the State of New York, without regard to the conflict of laws
provisions thereof.


 


18.
AUTHENTICATION. This Note shall not be valid until authenticated by the manual
signature of the Trustee or an authenticating agent.


 


19.
CUSIP/CINS NUMBERS. Pursuant to a recommendation promulgated by the Committee
on Uniform Note Identification Procedures, the Company has caused CUSIP and
CINS numbers, as applicable, to be printed on the Notes and has directed the
Trustee to use CUSIP and CINS numbers, as applicable, in notices of redemption
as a convenience to Holders. No representation is made as to the accuracy of
such numbers either as printed on the Notes or as contained in any notice of
redemption and reliance may be placed only on the other identification numbers
printed on the Notes.


 


The
Company will furnish to any Holder upon written request and without charge a
copy of the Indenture. Request may be made to: Agrilink Foods, Inc., 90
Linden


 


A-8

















 


Oaks, P.O. Box 20670,
Rochester, New York 14602, Attention: Vice President—Communications, or by
telephone at 716-383-1850.


 


A-9

















 


SCHEDULE OF EXCHANGES OF CERTIFICATED NOTES*


 


The
following exchanges of a part of this Global Note for Physical Notes have been
made:


 


	
   

  	
   

  	
  Amount of

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  decrease in

  	
   

  	
  Amount of increase

  	
   

  	
  Principal Amount of

  	
   

  	
  Signature of

  	
   

  
	
   

  	
   

  	
  Principal Amount

  	
   

  	
  in

  	
   

  	
  this Global Note

  	
   

  	
  authorized officer

  	
   

  
	
   

  	
   

  	
  of this Global

  	
   

  	
  Principal Amount of

  	
   

  	
  following such

  	
   

  	
  of Trustee or

  	
   

  
	
  Date of Exchange

  	
   

  	
  Note

  	
   

  	
  this Global Note

  	
   

  	
  decrease (or increase)

  	
   

  	
  Notes Custodian

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  



 






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


 


A-10














 


ASSIGNMENT FORM


 


I or we assign and transfer
this Note to


	
   

  



(Print or type name, address
and zip code of assignee or transferee)


 


 


	
  (Insert Social Security or
  other identifying number of assignee or transferee)

  



 


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


 


	
  Dated:

  	
   

  	
   

  	
  Signed:

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   (Sign exactly as name appears on the  other side of
  this Note)

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Signature Guarantee:

  	
   

  	
   

  
	
   

  	
   

  	
  Participant in a recognized
  Signature Guarantee Medallion Program (or other signature guarantee program
  reasonably acceptable to the Trustee)

  



 


In
connection with any transfer of this Note occurring prior to the date which is
the earlier of (i) the date of the declaration by the SEC of the
effectiveness of a registration statement under the Securities Act of 1933, as
amended (the “SECURITIES ACT”) covering resales of this Note (which
effectiveness shall not have been suspended or terminated at the date of the
transfer) and (ii) by end of the period referred to in Rule 144(k) under
the Securities Act, the undersigned confirms that it has not utilized any
general solicitation or general advertising in connection with the transfer and
that this Note is being transferred:


 


A-11

















 


[Check One]


 


	
  (1)

  	
  —

  	
  to the Company or a
  subsidiary thereof; or

  
	
  (2)

  	
  —

  	
  pursuant to and in
  compliance with Rule 144A under the Securities Act; or

  
	
  (3) 

  	
  —

  	
  to an institutional
  “accredited investor” (as defined in Rule 501(a)(1),  (2),
  (3) or (7) under the Securities Act) that has furnished  to the Trustee
  a signed letter containing certain  representations
  and agreements (the form of which letter can  be obtained
  from the Trustee); or 

  
	
  (4) 

  	
  —

  	
  outside the United states
  to a “foreign person” in  compliance with
  Rule 904 of Regulation S under the Securities  Act; or 

  
	
  (5) 

  	
  —

  	
  pursuant to the exemption
  from registration provided by Rule 144 under  the Securities
  Act; or 

  
	
  (6) 

  	
  —

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

  
	
  (7)  

  	
  —

  	
  pursuant to another
  available exemption from the registration  requirements
  of the Securities Act; 

  



 


and unless the box below is
checked, the undersigned confirms that such Note is not being transferred to an
“affiliate” of the Company as defined in Rule 144 under the Securities Act
of 1933, as amended (an “Affiliate”):


 


[  ]       The transferee is an Affiliate of the
Company.


 


Unless
one of the items is checked, the Trustee will refuse to register any of the
Notes evidenced by this certificate in the name of any person other than the
registered Holder thereof; provided that if box (3), (4), (5) or (7) is
checked, the Company or the Trustee may require, prior to registering any such
transfer of the Notes, in its sole discretion, such legal opinions,
certifications (including an investment letter in the case of box (3) or
(4)) and other information as the Trustee or 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.


 


A-12

















 


If none of the foregoing
boxes is checked, the Trustee or Registrar shall not be obligated to register
this Note in the name of any person other than the Holder hereof unless and
until the conditions to any such transfer of registration set forth herein and
in Section 2.09 of the Indenture shall have been satisfied.


 


	
  Dated:

  	
   

  	
   

  	
  Signed:

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   (Sign exactly as name appears on the  other side of
  this Security)

  



 


	
  Signature Guarantee:

  	
   

  	
   

  
	
   

  	
   

  	
  Participant in a recognized
  Signature Guarantee Medallion Program (or other signature guarantee program
  reasonably acceptable to the Trustee) 

  



 


TO
BE COMPLETED BY PURCHASER IF (2) ABOVE IS CHECKED


 


The
undersigned represents and warrants that it is purchasing this Note 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 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

  



 


A-13

















 


OPTION OF HOLDER TO ELECT PURCHASE


 


If
you elect to have this Note purchased by the Company pursuant to Section 4.15
of the Indenture, check the box: o


 


If
you elect to have this Note purchased by the Company pursuant to Section 4.16
of the Indenture, check the box: o


 


If
you elect to have only part of the principal amount of this Note purchased by
the Company pursuant to Section 4.15 or 4.16 of the Indenture, state the
portion of such amount (multiples of $1,000 principal amount only):


$                                            .


 


	
  Dated:

  	
   

  	
   

  	
  Your signature:

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   (Sign exactly as name
  appears on  the other side of this Note)

  



 


	
  Signature Guarantee:

  	
   

  	
   

  



 


(Signature
must be guaranteed by a financial institution that is a member of the
Securities Transfer Agent Medallion Program (“STAMP”), in accordance with the
Securities Exchange Act of 1934, as amended.)


 


A-14

















 


EXHIBIT B


 


[FORM OF EXCHANGE NOTE]


 


AGRILINK FOODS, INC.


11-7/8% SENIOR SUBORDINATED NOTES DUE 2008


 


	
  No.

  	
  $

  



[CUSIP][CINS]
NO.


Agrilink
Foods, Inc., a corporation duly organized and existing under the laws of
the State of New York (herein called the “COMPANY”, which term includes any
successor Person under the Indenture hereinafter referred to), for value
received, hereby promises to pay to
                                            ,
or registered assigns, the principal sum of
                                      
Dollars on November 1, 2008.


 


	
        Interest Payment Dates:

  	
  May 1 and
  November 1, commencing

  
	
   

  	
  May 1,    1999

  
	
   

  	
   

  
	
        Record Dates:                 
  April 15 and October 15

  



 


Pursuant
to the Indenture, the payment of principal of and premium, if any, and interest
and, if applicable, Additional Interest on this Note is unconditionally
guaranteed by Pro-Fac Cooperative, Inc., a cooperative corporation duly
organized and existing under the laws of the State of New York, and its
successors (“PRO-FAC”) and by the Subsidiary Guarantors (as defined in the
Indenture) (together with Pro-Fac, the “GUARANTORS”), and such other Persons as
may from time to time execute and deliver to the Trustee a counterpart of the
Indenture as a Subsidiary Guarantor.


 


Reference
is hereby made to the further provisions of this Note set forth on the reverse
hereof and as more fully specified in the Indenture, which further provisions
shall for all purposes have the same effect as if set forth at this place.


 


B-1

















 


IN
WITNESS WHEREOF, the Company has caused this instrument to be duly executed.


 


AGRILINK
FOODS, INC.


 


	
   

  	
  By:

  	
   

  
	
   

  	
  Name:

  
	
   

  	
  Title:

  
	
   

  	
   

  



 


	
   

  	
  By:

  	
   

  
	
   

  	
  Name:

  
	
   

  	
  Title:

  



 


 


Dated:  [        
]


 


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


 


IBJ
SCHRODER BANK & TRUST COMPANY


as
Trustee


 


 


	
  Dated:  [        
  ]

  	
  By:

  	
   

  
	
   

  	
  Authorized Signatory

  
	
   

  	
   

  



 


B-2

















 


FORM OF REVERSE OF NOTE


 


1.
INTEREST. Agrilink Foods, Inc. (the “COMPANY”) promises to pay interest on
the principal amount of this Note at the rate and in the manner specified
below. Cash interest will accrue at 11-7/8% per annum until maturity and will
be payable semi-annually in arrears in cash on May 1 and November 1
of each year commencing May 1, 1999, or if any such day is not a Business
Day on the next succeeding Business Day (each an “INTEREST PAYMENT DATE”).
Interest on this Note will accrue from the most recent date on which interest
has been paid or, if no interest has been paid, from the original date of
issue. To the extent lawful, the Company shall pay interest on overdue
principal, premium, if any, interest and Additional Interest, if any, from time
to time on demand at the rate borne by this Note, compounded semi-annually.
Interest will be computed on the basis of a 360-day year of twelve 30-day
months.


 


There
shall also be payable in respect of this Note all Additional Interest that may
have accrued on the Note for which this Note was exchanged (as defined in such
Note) pursuant to the Exchange Offer or otherwise pursuant to a Registration of
such Note, such Additional Interest to be payable in accordance with the terms
of such Note.


 


2.
METHOD OF PAYMENT. The Company will pay interest on this Note to the Person who
is the registered Holder of this Note at the close of business on the record
date for the next Interest Payment Date, which record date shall be April 15
and October 15 of each year (each a “RECORD DATE”); notwithstanding the
foregoing, the first Record Date shall be April 15, 1999. Holders must
surrender Notes to a Paying Agent, as defined below, to collect principal
payments on such Notes. Principal of, premium, if any, interest and Additional
Interest, if any, on, the Notes will be payable at the office or agency of the
Company maintained for such purpose within the Borough of Manhattan in the City
and State of New York or, at the option of the Company by wire transfer of
immediately available funds or, in the case of certificated securities only, by
mailing a check to the registered address of the Holder. Until otherwise
designated by the Company, the Company’s office or agency will be the office of
the Trustee maintained for such purpose. The Company shall 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 (“U.S. LEGAL TENDER”).


 


3.
PAYING AGENT AND REGISTRAR. (a) IBJ Schroder Bank & Trust Company
(the “TRUSTEE”) will initially act as the Paying Agent and Registrar. The
Company may appoint additional paying agents or co-registrars, and change the
Paying Agent, any additional paying agent, the Registrar or any co-registrar
without prior notice to any Holder. The Company, any Guarantor or any of their
respective Affiliates may act in any such capacity unless an Event of Default
shall have occurred and be continuing.


 


(b) Pursuant
to the Indenture, the Company has appointed the Trustee as transfer and
exchange agent for the purpose of any transfer or exchange of the Notes.


 


B-3

















 


(c) Holders
shall present Notes to the Trustee, as transfer and exchange agent, for
transfer and exchange.


 


4.
INDENTURE. The Company has issued the Notes under an Indenture, dated as of November 18,
1998 (the “INDENTURE”), among the Company, as issuer of the Notes, the
Guarantors party thereto and the Trustee. The terms of the Notes include those
stated in the Indenture and those made part of the Indenture by reference to
the Trust Indenture Act of 1939 (15 U.S. Code ss.ss. 77aaa-77bbbb) as in effect
on the date of the original issuance of the Notes (the “TRUST INDENTURE ACT”).
The Notes are subject to, and qualified by, all such terms, certain of which
are summarized herein, and Holders are referred to the Indenture and the Trust
Indenture Act for a statement of such terms (all capitalized terms not defined
herein shall have the meanings assigned to them in the Indenture). The Notes
are unsecured general obligations of the Company limited to $200,000,000 in
aggregate principal amount.


 


5.
REDEMPTION PROVISIONS. (a) The Notes are not subject to any mandatory
sinking fund redemption prior to maturity.


 


(b) The
Notes may not be redeemed prior to November 1, 2003, but will be
redeemable at the option of the Company, in whole or in part, at any time on or
after November 1, 2003, at the following redemption prices (expressed as
percentages of principal amount), together with accrued and unpaid interest if
any, thereon to the redemption date, if redeemed during the twelve-month period
beginning November 1:


 




	
   

  	
   

  	
  OPTIONAL

  	
   

  
	
   

  	
   

  	
  REDEMPTION

  	
   

  
	
  YEAR

  	
   

  	
  PRICE

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  2003

  	
   

  	
  105.938

  	
  %

  
	
  2004

  	
   

  	
  103.958

  	
  %

  
	
  2005

  	
   

  	
  101.979

  	
  %

  
	
  2006 and thereafter

  	
   

  	
  100.000

  	
  %

  






 


Notwithstanding
the foregoing, at any time prior to November 1, 2001, the Company may
redeem at its option up to 35% of the aggregate principal amount of the Notes
originally issued with the net cash proceeds of one or more Equity Offerings at
a redemption price equal to 111.875% of the principal amount thereof, plus
accrued and unpaid interest and Additional Interest, if any, to the redemption
date; provided that (a) at least $130 million in aggregate principal
amount of the Notes remains outstanding immediately after the occurrence of any
such redemption and (b) such redemption occurs within 60 days of the date
of the closing of any such Equity Offering.


 


(c) If
less than all of the Notes are to be redeemed at any time, selection of the
Notes to be redeemed will be made by the Trustee from among the outstanding
Notes on a pro rata basis, by lot or by any other method permitted in the
Indenture. Notice of redemption will


 


B-4

















 


be mailed at least 30 days
but not more than 60 days before the redemption date to each holder whose Notes
are to be redeemed at the registered address of such holder. On and after the
redemption date, interest will cease to accrue on the Notes or portions thereof
called for redemption.


 


6.
MANDATORY OFFERS. (a) Upon the occurrence of a Change of Control, each
Holder of Notes will have the right to require that the Company repurchase such
Holder’s Notes, in whole or in part in integral multiples of $1,000 in
principal amount, for a cash purchase price equal to 101% of the principal
amount thereof plus accrued and unpaid interest (including Additional Interest,
if any), if any, to the date of repurchase, as provided in, and subject to the
terms of, the Indenture.


 


(b) The
Company is, subject to certain conditions, obligated to make an offer to
purchase Notes at 100% of their principal amount, plus accrued and unpaid
interest (including Additional Interest, if any), thereon to the date of
repurchase with certain of the Net Available Proceeds of Asset Sales in
accordance with the Indenture.


 


7.
NOTES TO BE REDEEMED OR PURCHASED. The Notes may be redeemed or purchased in
part, but only in multiples of $1,000 principal amount unless all Notes held by
a Holder are to be redeemed or purchased. On or after any date on which Notes
are redeemed or purchased, interest ceases to accrue on the Notes or portions
thereof called for redemption or accepted for purchase on such date.


 


8.
DENOMINATIONS, TRANSFER, EXCHANGE. The Notes are in registered form, without
coupons, in denominations of $1,000 principal amount of maturity and integral
multiples thereof. The transfer of Notes may be registered and Notes may be
exchanged as provided in the Indenture. Holders seeking to transfer or exchange
their Notes may be required, among other things, to furnish appropriate
endorsements and transfer documents and to pay any taxes and fees required by
law or permitted by the Indenture. The Registrar need not exchange or register
the transfer of any Note or portion of a Note selected for redemption or
tendered pursuant to an Offer. Neither the Trustee nor the Registrar shall be
required (i) to register the transfer of or exchange any Note selected for
redemption, (ii) to register the transfer of or exchange any Note for a
period of 15 days before the mailing of a notice of redemption ending on the
date of such mailing, (iii) to register the transfer or exchange of a Note
between a Record Date and the next succeeding Interest Payment Date.


 


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


 


10.
AMENDMENTS AND WAIVERS. (a) Subject to certain exceptions, the Indenture
and the Notes may be amended or supplemented with the written consent of the
Holders of at least a majority in aggregate principal amount of the then
outstanding Notes (including consents obtained in connection with a tender
offer or exchange offer for the Notes), and any existing Default


 


B-5

















 


or Event of Default or
compliance with any provision of the Indenture or the Notes may be waived with
the consent of the Holders of at least a majority in principal amount of the
then outstanding Notes (including consents obtained in connection with a tender
offer or exchange offer for the Notes).


 


(b) Notwithstanding
section 10(a) above, the Company, the Guarantors and the Trustee may amend
or supplement the Indenture or the Notes, without the consent of any Holder,
to: cure any ambiguity, defect or inconsistency; provide for uncertificated
Notes in addition to or in place of certificated Notes; provide for the
assumption of the obligations to the Holders of the Company, or the Guarantors,
as the case may be, in the event of any merger or reorganization involving the
Company, or a Guarantor, as the case may be, that is permitted under Article 5
of the Indenture; make any change that would provide any additional rights or
benefits to Holders or does not adversely affect the legal rights under the
Indenture of any Holder; or comply with the requirements of the Securities and
Exchange Commission (“SEC”) in order to effect or maintain the qualification of
the Indenture under the Trust Indenture Act.


 


11.
DEFAULTS AND REMEDIES. If an Event of Default occurs and is continuing, the
Trustee or the Holders of at least 25% in aggregate principal amount of Notes
then outstanding may declare all the Notes to be due and payable immediately in
the manner and with the effect provided in the Indenture. Holders of Notes may
not enforce the Indenture, the Notes or the Note Guarantees except as provided
in the Indenture. The Trustee is not obligated to enforce the Indenture, the
Notes or the Note Guarantees unless it has received indemnity satisfactory to
it. The Indenture permits, subject to certain limitations therein provided,
Holders of a majority in aggregate principal amount of the Notes then
outstanding to direct the Trustee in its exercise of any trust or power. The
Trustee may withhold from Holders notice of certain continuing Defaults or
Events of Default if it determines that withholding notice is in their
interest.


 


12.
SUBORDINATION. All Obligations owed under and in respect of the Notes are
subordinated in right of payment, to the extent and in the manner provided in Article 10
of the Indenture, to the prior payment in full in cash of all Obligations owed
under and in respect of all existing and future Senior Indebtedness of the
Company and of each Guarantor, and the subordination of the Notes is for the
benefit of all holders of all Senior Indebtedness, whether outstanding on the
Issue Date or incurred thereafter. The Company and each Guarantor agree, and
each Holder by accepting a Note agrees, to the subordination.


 


13.
TRUSTEE DEALINGS WITH COMPANY. The Trustee in its individual or any other
capacity may become the owner or pledgee of Notes and may otherwise deal with
the Company or any of its Affiliates with the same rights it would have if it
were not Trustee.


 


14.
NO RECOURSE AGAINST OTHERS. No director, officer, employee, incorporator or
direct or indirect stockholder of the Company or any Guarantor (other than the
Company and any Guarantor), as such, shall have any liability for any
obligation of the Company or such Guarantor under the Indenture or the Notes or
Note Guarantees or for any claim based on, in respect


 


B-6

















 


of, or by reason of, any such
obligation or the creation of any such obligation. Each Holder by accepting a
Note waives and releases such Persons from all such liability, and such waiver
and release is part of the consideration for the issuance of the Notes.


 


15.
DISCHARGE PRIOR TO REDEMPTION OR MATURITY. The Company and the Guarantors may
be discharged from their obligations under the Indenture, the Notes and the
Guarantees except for certain provisions thereof, and may be discharged from
obligations to comply with certain covenants contained in the Indenture, the
Notes and the Note Guarantees, in each case upon satisfaction of certain
conditions specified in the Indenture.


 


16.
RESTRICTIVE COVENANTS. The Indenture contains certain covenants that, among
other things, limit the ability of the Company and its Restricted Subsidiaries
to make restricted payments, to incur indebtedness, to create liens, to sell
assets, to permit restrictions on dividends and other payments by Restricted
Subsidiaries of the Company to the Company, to consolidate, merge or sell all
or substantially all of its assets or to engage in transactions with
affiliates. The limitations are subject to a number of important qualifications
and exceptions. The Company must annually report to the Trustee on compliance
with such limitations.


 


17.
GOVERNING LAW. This Note shall be governed by and construed in accordance with
the laws of the State of New York, without regard to the conflict of laws
provisions thereof.


 


18.
AUTHENTICATION. This Note shall not be valid until authenticated by the manual
signature of the Trustee or an authenticating agent.


 


19.
CUSIP/CINS NUMBERS. Pursuant to a recommendation promulgated by the Committee
on Uniform Note Identification Procedures, the Company has caused CUSIP and
CINS numbers, as applicable, to be printed on the Notes and has directed the
Trustee to use CUSIP and CINS numbers, as applicable, in notices of redemption
as a convenience to Holders. No representation is made as to the accuracy of
such numbers either as printed on the Notes or as contained in any notice of
redemption and reliance may be placed only on the other identification numbers
printed on the Notes.


 


The
Company will furnish to any Holder upon written request and without charge a
copy of the Indenture. Request may be made to: Agrilink Foods, Inc., 90
Linden Oaks, P.O. Box 20670, Rochester, New York 14602, Attention: Vice
President—Communications, or by telephone at 716-383-1850.


 


B-7

















 


SCHEDULE OF EXCHANGES OF
CERTIFICATED NOTES*


 


The
following exchanges of a part of this Global Note for Physical Notes have been
made:


 


	
   

  	
   

  	
  Amount
  of

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  decrease
  in

  	
   

  	
  Amount
  of increase

  	
   

  	
  Principal
  Amount of

  	
   

  	
  Signature
  of

  	
   

  
	
   

  	
   

  	
  Principal
  Amount

  	
   

  	
  in

  	
   

  	
  this
  Global Note

  	
   

  	
  authorized
  officer

  	
   

  
	
   

  	
   

  	
  of this
  Global

  	
   

  	
  Principal
  Amount of

  	
   

  	
  following
  such

  	
   

  	
  of
  Trustee or

  	
   

  
	
  Date of Exchange

  	
   

  	
  Note

  	
   

  	
  this
  Global Note

  	
   

  	
  decrease
  (or increase)

  	
   

  	
  Notes
  Custodian

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  



 






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


 


B-8














 


ASSIGNMENT
FORM


 


I or we assign and transfer
this Note to


 


	
  (Print or type name,
  address and zip code of assignee or transferee)

  



 


 


	
  (Insert Social Security or
  other identifying number of assignee or transferee)

  



 


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


 


	
  Dated:

  	
   

  	
   

  	
  Signed:

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
  (Sign exactly as name
  appears on the other side of this Note)

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Signature Guarantee:

  	
   

  	
   

  
	
   

  	
   

  	
  Participant in a recognized
  Signature Guarantee Medallion Program (or other signature guarantee program
  reasonably acceptable to the Trustee)

  



 


B-9

















 


OPTION
OF HOLDER TO ELECT PURCHASE


 


If
you elect to have this Note purchased by the Company pursuant to Section 4.15
of the Indenture, check the box: o


 


If
you elect to have this Note purchased by the Company pursuant to Section 4.16
of the Indenture, check the box: o


 


If
you elect to have only part of the principal amount of this Note purchased by
the Company pursuant to Section 4.15 or 4.16 of the Indenture, state the
portion of such amount (multiples of $1,000 principal amount only):
$                                                            .


 


	
  Dated:

  	
   

  	
   

  	
  Your signature:

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
  (Sign exactly as name
  appears on the other side of this Note)

  



 


	
  Signature Guarantee:

  	
   

  	
   

  



 


(Signature
must be guaranteed by a financial institution that is a member of the
Securities Transfer Agent Medallion Program (“STAMP”), in accordance with the
Securities Exchange Act of 1934, as amended.)


 


B-10

















 


EXHIBIT C


 


Form of
Certificate To Be


Delivered
in Connection with


Transfers
to Non-QIB Accredited Investors


 






 


[
              ], [  
    ]


 


IBJ Schroder Bank &
Trust Company


One State Street


New York, NY  10004


Attention:  Corporate Trust Administration


 


	
  Re:

  	
   

  	
  Agrilink Foods, Inc.
  (the “COMPANY”)

  
	
   

  	
   

  	
  11-7/8% Senior Subordinated
  Notes

  
	
   

  	
   

  	
  due 2008 (the “NOTES”)

  	
   

  



 


Ladies and Gentlemen:


 


In
connection with our proposed purchase of Notes of the Company, we confirm that:


 


(i)    we are an
“accredited investor” within the meaning of Rule 501(a)(1), (2), (3) or (7) under
the Securities Act of 1933, as amended (the “SECURITIES ACT”), or an entity in
which all of the equity owners are accredited investors within the meaning of Rule 501(a)(1),
(2), (3) or (7) under the Securities Act (the “INSTITUTIONAL ACCREDITED INVESTOR”);


 


(ii)   any
purchase of Notes by us will be for our own account or for the account of one
or more other Institutional Accredited Investors; 


 


(iii)  in the
event that we purchase any Notes, we will acquire Notes having a minimum
purchase price of at least $100,000 for our own account and for each separate
account for which we are acting; 


 


(iv)  we have
such knowledge and experience in financial and business matters that we are
capable of evaluating the merits and risks of purchasing Notes;


 


C-1

















 


(v)   we are not
acquiring Notes with a view to any distribution thereof in a transaction that
would violate the Securities Act or the securities laws of any State of the
United States or any other applicable jurisdiction; provided that the
disposition of our property and the property of any accounts for which we are
acting as fiduciary shall remain at all times within our control; and


 


(vi)  we
acknowledge that we have had access to such financial and other information,
and have been afforded the opportunity to ask such questions of representatives
of the Company and receive answers thereto, as we deem necessary in connection
with our decision to purchase Notes.


 


We
understand that the Notes are being offered in a transaction not involving any
public offering within the meaning of the Securities Act and that the Notes
have not been registered under the Securities Act, and we agree, on our own
behalf and on behalf of each account for which are acquired any Notes, that any
such Notes may be offered, resold, pledged or otherwise transferred only: (i) to
a person whom we reasonably believe to be a qualified institutional buyer (as
defined in Rule 144A under the Securities Act), in a transaction meeting
the requirements of Rule 144A, outside the United States in a transaction
meeting the requirements of Rule 904 under the Securities Act, or in
accordance with another exemption from the registration requirements of the
Securities Act (and based upon an opinion of counsel if the Company so
requests), (ii) to the Company or (iii) pursuant to an effective
registration statement, and, in each case, in accordance with any applicable
securities laws of any State of the United States or any other applicable
jurisdiction. We understand that the registrar will not be required to accept
for registration of transfer any Notes, except upon presentation of evidence
satisfactory to the Company that the foregoing restrictions on transfer have
been complied with. We further understand that the Notes purchased by us will
bear a legend reflecting the substance of this paragraph. We acknowledge that
you and others will rely upon our confirmations, acknowledgments and agreements
set forth herein, and we agree to notify you promptly in writing if any of our
representations or warranties herein ceases to be accurate and complete.


 


C-2

















 


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


 


	
   

  	
   

  
	
   

  	
  (Name of Purchaser)

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  Address:

  



 


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EXHIBIT
D


 


Form of Certificate
to be Delivered


in
Connection with Transfers


Pursuant
to Regulation S


 






 


                   ,
      


 


IBJ Schroder Bank &
Trust Company


One State Street


New York, NY  10004


Attention: Corporate Trust
Administration


 


	
  Re:

  	
   

  	
  Agrilink Foods, Inc.
  (the “COMPANY”)

  
	
   

  	
   

  	
  11-7/8% Senior Subordinated
  Notes due 2008 (the “NOTES”)

  	
   

  



 


Dear Sirs:


 


In
connection with our proposed sale of U.S.$200,000,000 aggregate principal
amount of the Notes, we confirm that such sale has been effected pursuant to
and in accordance with Regulation S under the Securities Act of 1933, as
amended, and, accordingly, we represent that:


 


(1) the
offer of the Notes was not made to a person in the United States;


 


(2) at
the time the buy order was originated, the transferee was outside the United
States or we and any person acting on our behalf reasonably believed that the
transferee was outside the United States;


 


(3) no
directed selling efforts have been made by us in the United States in
contravention of the requirements of Rule 903(b) or Rule 904(b) of
Regulation S, as applicable; and


 


(4) the
transaction is not part of a plan or scheme to evade the registration
requirements of the Securities Act of 1933.


 


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You
and the Company are entitled to rely upon this letter and are irrevocably
authorized to produce this letter or a copy hereof to any interested party in
any administrative or legal proceedings or official inquiry with respect to the
matters covered hereby. Terms used in this certificate have the meanings set
forth in Regulation S.


 


	
   

  	
  Very truly yours,

  
	
   

  	
   

  
	
   

  	
  [Name of Transferor]

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Authorized Signatory

  



 


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EXHIBIT
E


 


NOTE
GUARANTEE


 






 


For
value received, the undersigned hereby unconditionally guarantees, as principal
obligor and not only as a surety, to the Holder of this Note the cash payments
in United States dollars of principal of, premium, if any, and interest (and
Additional Interest, if any) on this Note in the amounts and at the times when
due and interest on the overdue principal, premium, if any, and interest (and
Additional Interest, if any), if any, of this Note, if lawful, and the payment
or performance of all other obligations of the Company under the Indenture (as
defined below) or the Notes, to the Holder of this Note and the Trustee, all in
accordance with and subject to the terms and limitations of this Note, Articles
10 and 11 of the Indenture and this Note Guarantee. This Note Guarantee will
become effective in accordance with Article 11 of the Indenture and its
terms shall be evidenced therein. The validity and enforceability of any Note
Guarantee shall not be affected by the fact that it is not affixed to any
particular Note.


 


Capitalized
terms used but not defined herein shall have the meanings ascribed to them in
the Indenture dated as of November 18, 1998, among Agrilink Foods, Inc.,
a New York corporation, as issuer (the “COMPANY”), the Guarantors named therein
and IBJ Schroder Bank & Trust Company, as trustee (the “TRUSTEE”), as
amended or supplemented (the “INDENTURE”).


 


The
obligations of the undersigned to the Holders of Notes and to the Trustee
pursuant to this Note Guarantee and the Indenture are expressly set forth in Article 11
of the Indenture, and are expressly subordinated in right of payment to the
prior payment in full of all Senior Indebtedness (as defined in the Indenture)
of the Guarantors to the extent set forth in Article 10 of the Indenture,
and reference is hereby made to the Indenture for the precise terms of the Note
Guarantee and all of the other provisions of the Indenture to which this Note
Guarantee relates.


 


THIS
NOTE GUARANTEE SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH, THE LAWS
OF THE STATE OF NEW YORK, WITHOUT REGARD TO THE CONFLICT OF LAWS PROVISIONS
THEREOF.


 


This
Note Guarantee is subject to release upon the terms set forth in the Indenture.


 


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IN
WITNESS WHEREOF, each Guarantor has caused its Note Guarantee to be duly
executed.


 


 


Date:  [            
]


 


	
   

  	
  PRO-FAC COOPERATIVE, INC.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  LINDEN OAKS CORPORATION

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  
	
   

  	
   

  
	
   

  	
  KENNEDY ENDEAVORS,
  INCORPORATED

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  



 


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