EXHIBIT 4.1


 


EXECUTION
COPY


 




 





 


AVENTINE RENEWABLE ENERGY
HOLDINGS, INC.,

as Issuer,


 


AVENTINE RENEWABLE ENERGY,
LLC,

as Guarantor,


 


AVENTINE RENEWABLE ENERGY, INC.

as Guarantor,


 


and


 


WELLS FARGO BANK, N.A.,

as Trustee


 






 


INDENTURE


 






 


Dated as of December 17,
2004


 


Senior Secured Floating Rate
Notes due 2011


 




 





 

















 


CROSS-REFERENCE TABLE


 


	
  TIA Section

  	
   

  	
   

  	
  Indenture Section

  
	
   

  	
   

  	
   

  
	
  310(a)

  	
  (1)

  	
   

  	
  7.10

  
	
  (a)

  	
  (2)

  	
   

  	
  7.10

  
	
  (a)

  	
  (3)

  	
   

  	
  N.A.

  
	
  (a)

  	
  (4)

  	
   

  	
  N.A.

  
	
  (a)

  	
  (5)

  	
   

  	
  7.8 ; 7.10

  
	
  (b)

  	
   

  	
   

  	
  7.8 ; 7.10; 13.2

  
	
  (c)

  	
   

  	
   

  	
  N.A.

  
	
  311(a)

  	
   

  	
   

  	
  7.11

  
	
  (b)

  	
   

  	
   

  	
  7.11

  
	
  (c)

  	
   

  	
   

  	
  N.A.

  
	
  312(a)

  	
   

  	
   

  	
  2.5

  
	
  (b)

  	
   

  	
   

  	
  13.3

  
	
  (c)

  	
   

  	
   

  	
  13.3

  
	
  313(a)

  	
   

  	
   

  	
  7.6

  
	
  (b)

  	
  (1)

  	
   

  	
  7.6

  
	
  (b)

  	
  (2)

  	
   

  	
  7.6

  
	
  (c)

  	
   

  	
   

  	
  7.6 ; 13.2

  
	
  (d)

  	
   

  	
   

  	
  7.6

  
	
  314(a)

  	
   

  	
   

  	
  4.8 ; 4.10; 13.2

  
	
  (b)

  	
   

  	
   

  	
  10.4

  
	
  (c)

  	
  (1)

  	
   

  	
  7.2 ; 13.4; 13.5

  
	
  (c)

  	
  (2)

  	
   

  	
  7.2 ; 13.4; 13.5

  
	
  (c)

  	
  (3)

  	
   

  	
  N.A.

  
	
  (d)

  	
   

  	
   

  	
  10.7

  
	
  (e)

  	
   

  	
   

  	
  13.5

  
	
  (f)

  	
   

  	
   

  	
  N.A.

  
	
  315(a)

  	
   

  	
   

  	
  7.1 (b)

  
	
  (b)

  	
   

  	
   

  	
  7.5

  
	
  (c)

  	
   

  	
   

  	
  7.1

  
	
  (d)

  	
   

  	
   

  	
  6.5 ; 7.1(c)

  
	
  (e)

  	
   

  	
   

  	
  6.11

  
	
  316(a)

  	
  (last sentence)

  	
   

  	
   

  
	
   

  	
  (1)

  	
   

  	
  —

  
	
  (a)

  	
  (A)

  	
   

  	
  6.5

  
	
   

  	
  (1)

  	
   

  	
  —

  
	
  (a)

  	
  (B)

  	
   

  	
  6.4

  
	
  (a)

  	
  (2)

  	
   

  	
  N.A.

  
	
  (b)

  	
   

  	
   

  	
  6.7

  
	
  (c)

  	
   

  	
   

  	
  9.5

  
	
  317(a)

  	
  (1)

  	
   

  	
  6.8

  
	
  (a)

  	
  (2)

  	
   

  	
  6.9

  
	
  (b)

  	
   

  	
   

  	
  2.4

  
	
  318(a)

  	
   

  	
   

  	
  13.1

  
	
  (c)

  	
   

  	
   

  	
  13.1

  
					



 






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 I DEFINITIONS AND INCORPORATION BY
  REFERENCE

  	
  1

  
	
   

  	
   

  	
   

  
	
  1.1

  	
  DEFINITIONS

  	
  1

  
	
  1.2

  	
  INCORPORATION BY REFERENCE OF TIA

  	
  29

  
	
  1.3

  	
  RULES OF CONSTRUCTION

  	
  29

  
	
   

  	
   

  	
   

  
	
  ARTICLE II THE SECURITIES

  	
  30

  
	
   

  	
   

  	
   

  
	
  2.1

  	
  FORM AND DATING

  	
  30

  
	
  2.2

  	
  EXECUTION AND AUTHENTICATION

  	
  31

  
	
  2.3

  	
  REGISTRAR AND PAYING AGENT

  	
  32

  
	
  2.4

  	
  PAYING AGENT TO HOLD ASSETS IN TRUST

  	
  33

  
	
  2.5

  	
  HOLDER LISTS

  	
  33

  
	
  2.6

  	
  TRANSFER AND EXCHANGE

  	
  33

  
	
  2.7

  	
  REPLACEMENT SECURITIES

  	
  34

  
	
  2.8

  	
  OUTSTANDING SECURITIES

  	
  35

  
	
  2.9

  	
  TREASURY SECURITIES

  	
  35

  
	
  2.10

  	
  TEMPORARY SECURITIES

  	
  35

  
	
  2.11

  	
  CANCELLATION

  	
  36

  
	
  2.12

  	
  DEFAULTED INTEREST

  	
  36

  
	
  2.13

  	
  CUSIP AND ISIN NUMBERS

  	
  36

  
	
  2.14

  	
  RESTRICTIVE LEGENDS

  	
  36

  
	
  2.15

  	
  BOOK-ENTRY PROVISIONS FOR GLOBAL SECURITY

  	
  39

  
	
  2.16

  	
  SPECIAL TRANSFER PROVISIONS

  	
  40

  
	
   

  	
   

  	
   

  
	
  ARTICLE III REDEMPTION; OFFER TO PURCHASE

  	
  43

  
	
   

  	
   

  	
   

  
	
  3.1

  	
  NOTICES TO TRUSTEE

  	
  43

  
	
  3.2

  	
  SELECTION OF SECURITIES TO BE REDEEMED

  	
  43

  
	
  3.3

  	
  NOTICE OF REDEMPTION

  	
  44

  
	
  3.4

  	
  EFFECT OF NOTICE OF REDEMPTION

  	
  45

  
	
  3.5

  	
  DEPOSIT OF REDEMPTION PRICE

  	
  45

  
	
  3.6

  	
  SECURITIES REDEEMED IN PART

  	
  45

  
	
  3.7

  	
  OFFER TO PURCHASE

  	
  45

  
	
   

  	
   

  	
   

  
	
  ARTICLE IV COVENANTS

  	
  47

  
	
   

  	
   

  	
   

  
	
  4.1

  	
  PAYMENT OF SECURITIES

  	
  47

  
	
  4.2

  	
  MAINTENANCE OF OFFICE OR AGENCY

  	
  47

  
	
  4.3

  	
  LIMITATION ON RESTRICTED PAYMENTS

  	
  47

  
	
  4.4

  	
  LIMITATION ON INDEBTEDNESS AND ISSUANCE OF  PREFERRED STOCK

  	
  51

  
	
  4.5

  	
  CORPORATE EXISTENCE

  	
  54

  
	
  4.6

  	
  PAYMENT OF TAXES AND OTHER CLAIMS

  	
  54

  
	
  4.7

  	
  MAINTENANCE OF PROPERTIES AND INSURANCE

  	
  54

  
	
  4.8

  	
  COMPLIANCE CERTIFICATE; NOTICE OF DEFAULT

  	
  55

  
	
  4.9

  	
  COMPLIANCE WITH LAWS

  	
  55

  
	
  4.10

  	
  COMMISSION REPORTS AND REPORTS TO HOLDERS

  	
  55

  



 


i

















 


	
  4.11

  	
  WAIVER OF STAY, EXTENSION OR USURY LAWS

  	
  56

  
	
  4.12

  	
  LIMITATIONS ON TRANSACTIONS WITH SHAREHOLDERS AND AFFILIATES

  	
  56

  
	
  4.13

  	
  LIMITATION ON DIVIDEND AND OTHER PAYMENT RESTRICTIONS AFFECTING
  SUBSIDIARIES

  	
  58

  
	
  4.14

  	
  LIMITATION ON THE ISSUANCE AND SALE OF CAPITAL STOCK OF RESTRICTED
  SUBSIDIARIES

  	
  59

  
	
  4.15

  	
  ISSUANCES OF GUARANTEES BY RESTRICTED SUBSIDIARIES

  	
  60

  
	
  4.16

  	
  LIMITATION ON LIENS

  	
  60

  
	
  4.17

  	
  CHANGE OF CONTROL

  	
  61

  
	
  4.18

  	
  LIMITATION ON ASSET SALES

  	
  62

  
	
  4.19

  	
  PLEDGE OF CAPITAL STOCK OF NELLC

  	
  63

  
	
  4.20

  	
  LIMITATION ON SALE AND LEASEBACK TRANSACTIONS

  	
  63

  
	
  4.21

  	
  LIMITATION ON BUSINESS ACTIVITIES

  	
  63

  
	
  4.22

  	
  LIMITATION ON IMPAIRMENT OF SECURITY INTEREST

  	
  64

  
	
  4.23

  	
  EVENTS OF LOSS

  	
  64

  
	
  4.24

  	
  ESCROW OF PROCEEDS TO BE USED FOR PEKIN FACILITY EXPANSION

  	
  64

  
	
   

  	
   

  	
   

  
	
  ARTICLE V SUCCESSOR CORPORATION

  	
  65

  
	
   

  	
   

  	
   

  
	
  5.1

  	
  MERGER, CONSOLIDATION AND SALE OF ASSETS

  	
  65

  
	
  5.2

  	
  SUCCESSOR CORPORATION SUBSTITUTED

  	
  67

  
	
   

  	
   

  	
   

  
	
  ARTICLE VI DEFAULT AND REMEDIES

  	
  67

  
	
   

  	
   

  	
   

  
	
  6.1

  	
  EVENTS OF DEFAULT

  	
  67

  
	
  6.2

  	
  ACCELERATION

  	
  69

  
	
  6.3

  	
  OTHER REMEDIES

  	
  70

  
	
  6.4

  	
  WAIVER OF PAST DEFAULTS; RESCISSION OF ACCELERATION

  	
  70

  
	
  6.5

  	
  CONTROL BY MAJORITY

  	
  70

  
	
  6.6

  	
  LIMITATION ON SUITS

  	
  70

  
	
  6.7

  	
  RIGHTS OF HOLDERS TO RECEIVE PAYMENT

  	
  71

  
	
  6.8

  	
  COLLECTION SUIT BY TRUSTEE

  	
  71

  
	
  6.9

  	
  TRUSTEE MAY FILE PROOFS OF CLAIM

  	
  71

  
	
  6.10

  	
  PRIORITIES

  	
  72

  
	
  6.11

  	
  UNDERTAKING FOR COSTS

  	
  72

  
	
  6.12

  	
  RESTORATION OF RIGHTS AND REMEDIES

  	
  72

  
	
  6.13

  	
  RIGHTS AND REMEDIES CUMULATIVE

  	
  73

  
	
   

  	
   

  	
   

  
	
  ARTICLE VII TRUSTEE

  	
  73

  
	
   

  	
   

  	
   

  
	
  7.1

  	
  DUTIES OF TRUSTEE

  	
  73

  
	
  7.2

  	
  RIGHTS OF TRUSTEE

  	
  74

  
	
  7.3

  	
  INDIVIDUAL RIGHTS OF TRUSTEE

  	
  76

  
	
  7.4

  	
  TRUSTEE S DISCLAIMER

  	
  76

  
	
  7.5

  	
  NOTICE OF DEFAULT

  	
  76

  
	
  7.6

  	
  REPORTS BY TRUSTEE TO HOLDERS

  	
  76

  
	
  7.7

  	
  COMPENSATION AND INDEMNITY

  	
  77

  
	
  7.8

  	
  REPLACEMENT OF TRUSTEE

  	
  78

  
	
  7.9

  	
  SUCCESSOR TRUSTEE BY MERGER, ETC

  	
  79

  
	
  7.10

  	
  ELIGIBILITY; DISQUALIFICATION

  	
  79

  



 


ii

















 


	
  7.11

  	
  PREFERENTIAL COLLECTION OF CLAIMS AGAINST THE ISSUER

  	
  79

  
	
  7.12

  	
  DIRECTION TO TRUSTEE

  	
  79

  
	
   

  	
   

  	
   

  
	
  ARTICLE VIII DISCHARGE OF INDENTURE; DEFEASANCE

  	
  79

  
	
   

  	
   

  	
   

  
	
  8.1

  	
  TERMINATION OF THE ISSUER S OBLIGATIONS

  	
  79

  
	
  8.2

  	
  LEGAL DEFEASANCE AND COVENANT DEFEASANCE

  	
  80

  
	
  8.3

  	
  CONDITIONS TO LEGAL DEFEASANCE OR COVENANT DEFEASANCE

  	
  81

  
	
  8.4

  	
  APPLICATION OF TRUST MONEY

  	
  83

  
	
  8.5

  	
  REPAYMENT TO THE ISSUER

  	
  84

  
	
  8.6

  	
  REINSTATEMENT

  	
  84

  
	
   

  	
   

  	
   

  
	
  ARTICLE IX AMENDMENTS, SUPPLEMENTS AND WAIVERS

  	
  84

  
	
   

  	
   

  	
   

  
	
  9.1

  	
  WITHOUT CONSENT OF HOLDERS

  	
  84

  
	
  9.2

  	
  WITH CONSENT OF HOLDERS

  	
  85

  
	
  9.3

  	
  [INTENTIONALLY OMITTED]

  	
  86

  
	
  9.4

  	
  COMPLIANCE WITH TIA

  	
  86

  
	
  9.5

  	
  REVOCATION AND EFFECT OF CONSENTS

  	
  86

  
	
  9.6

  	
  NOTATION ON OR EXCHANGE OF SECURITIES

  	
  87

  
	
  9.7

  	
  TRUSTEE TO SIGN AMENDMENTS, ETC

  	
  87

  
	
   

  	
   

  	
   

  
	
  ARTICLE X COLLATERAL

  	
  87

  
	
   

  	
   

  	
   

  
	
  10.1

  	
  RIGHTS OF THE TRUSTEE

  	
  87

  
	
  10.2

  	
  COLLATERAL AND SECURITY DOCUMENTS

  	
  88

  
	
  10.3

  	
  APPLICATION OF PROCEEDS OF COLLATERAL

  	
  89

  
	
  10.4

  	
  POSSESSION, USE AND RELEASE OF COLLATERAL

  	
  90

  
	
  10.5

  	
  OPINION OF COUNSEL

  	
  91

  
	
  10.6

  	
  FURTHER ASSURANCES

  	
  92

  
	
  10.7

  	
  TRUST INDENTURE ACT REQUIREMENTS

  	
  92

  
	
  10.8

  	
  SUITS TO PROTECT THE COLLATERAL

  	
  92

  
	
  10.9

  	
  PURCHASER PROTECTED

  	
  93

  
	
  10.10

  	
  POWERS EXERCISABLE BY RECEIVER OR TRUSTEE

  	
  93

  
	
  10.11

  	
  RELEASE UPON TERMINATION OF OBLIGATIONS

  	
  93

  
	
  10.12

  	
  COLLATERAL MONIES

  	
  93

  
	
   

  	
   

  	
   

  
	
  ARTICLE XI GUARANTEE OF SECURITIES

  	
  94

  
	
   

  	
   

  	
   

  
	
  11.1

  	
  UNCONDITIONAL SUBSIDIARY GUARANTEE

  	
  94

  
	
  11.2

  	
  LIMITATIONS ON SUBSIDIARY GUARANTEES

  	
  96

  
	
  11.3

  	
  EXECUTION AND DELIVERY OF SUBSIDIARY GUARANTEE

  	
  96

  
	
  11.4

  	
  RELEASE OF A SUBSIDIARY GUARANTOR

  	
  96

  
	
  11.5

  	
  WAIVER OF SUBROGATION

  	
  97

  
	
  11.6

  	
  IMMEDIATE PAYMENT

  	
  97

  
	
  11.7

  	
  NO SET-OFF

  	
  98

  
	
  11.8

  	
  OBLIGATIONS ABSOLUTE

  	
  98

  
	
  11.9

  	
  OBLIGATIONS CONTINUING

  	
  98

  
	
  11.10

  	
  OBLIGATIONS NOT DISCHARGED

  	
  98

  
	
  11.11

  	
  OBLIGATIONS REINSTATED

  	
  98

  
	
  11.12

  	
  OBLIGATIONS NOT AFFECTED

  	
  99

  



 


iii

















 


	
  11.13

  	
  WAIVER

  	
  100

  
	
  11.14

  	
  NO OBLIGATION TO TAKE ACTION AGAINST THE ISSUER

  	
  100

  
	
  11.15

  	
  DEALING WITH THE ISSUER AND OTHERS

  	
  100

  
	
  11.16

  	
  DEFAULT AND ENFORCEMENT

  	
  101

  
	
  11.17

  	
  [INTENTIONALLY OMITTED]

  	
  101

  
	
  11.18

  	
  ACKNOWLEDGMENT

  	
  101

  
	
  11.19

  	
  COSTS AND EXPENSES

  	
  101

  
	
  11.20

  	
  NO MERGER OR WAIVER; CUMULATIVE REMEDIES

  	
  101

  
	
  11.21

  	
  SURVIVAL OF OBLIGATIONS

  	
  102

  
	
  11.22

  	
  SUBSIDIARY GUARANTEE IN ADDITION TO OTHER OBLIGATIONS

  	
  102

  
	
   

  	
   

  	
   

  
	
  ARTICLE XII [INTENTIONALLY OMITTED]

  	
  102

  
	
   

  	
   

  	
   

  
	
  ARTICLE XIII MISCELLANEOUS

  	
  102

  
	
   

  	
   

  	
   

  
	
  13.1

  	
  TIA CONTROLS

  	
  102

  
	
  13.2

  	
  NOTICES

  	
  102

  
	
  13.3

  	
  COMMUNICATIONS BY HOLDERS WITH OTHER HOLDERS

  	
  103

  
	
  13.4

  	
  CERTIFICATE AND OPINION AS TO CONDITIONS PRECEDENT

  	
  103

  
	
  13.5

  	
  STATEMENTS REQUIRED IN CERTIFICATE OR OPINION

  	
  104

  
	
  13.6

  	
  RULES BY TRUSTEE, PAYING AGENT, REGISTRAR

  	
  104

  
	
  13.7

  	
  LEGAL HOLIDAYS

  	
  104

  
	
  13.8

  	
  GOVERNING LAW

  	
  104

  
	
  13.9

  	
  NO ADVERSE INTERPRETATION OF OTHER AGREEMENTS

  	
  105

  
	
  13.10

  	
  NO RECOURSE AGAINST OTHERS

  	
  105

  
	
  13.11

  	
  SUCCESSORS

  	
  105

  
	
  13.12

  	
  DUPLICATE ORIGINALS

  	
  105

  
	
  13.13

  	
  SEVERABILITY

  	
  105

  
	
   

  	
   

  	
   

  
	
  SIGNATURES

  	
  S-1

  



 


	
  Exhibit A

  	
  -

  	
  Form of Initial Note

  
	
  Exhibit B

  	
  -

  	
  Form of Exchange Note

  
	
  Exhibit C

  	
  -

  	
  Form of Certificate for Transfers to Non-QIB Accredited
  Investors

  
	
  Exhibit D

  	
  -

  	
  Form of Certificate for Transfers Pursuant to Regulation S

  
	
  Exhibit D-1

  	
  -

  	
  Form of Certificate of Beneficial Ownership of Temporary
  Offshore Global Security

  
	
   

  	
   

  	
   

  
	
  Exhibit E

  	
  -

  	
  Form of Guarantee

  



 


Note: This Table of Contents shall not, for any
purpose, be deemed to be part of this Indenture


 


iv

















 


INDENTURE dated as of December 17, 2004 among AVENTINE RENEWABLE ENERGY HOLDINGS, INC.,
a Delaware corporation (the “Issuer”), AVENTINE
RENEWABLE ENERGY, LLC, a Delaware limited liability company, as a
Subsidiary Guarantor, AVENTINE RENEWABLE
ENERGY, INC., a Delaware corporation, as a Subsidiary
Guarantor, and WELLS FARGO BANK, N.A., as Trustee (the “Trustee”).


 


The Issuer has duly authorized the creation of an
issue of Senior Secured Floating Rate Notes due 2011 and, when and if issued as
provided in the Registration Rights Agreement in an Exchange Offer, Senior
Secured Floating Rate Exchange Notes due 2011, and, to provide therefor, the
Issuer has duly authorized the execution and delivery of this Indenture. All things
necessary to make the Securities (as defined below), when duly issued and
executed by the Issuer and authenticated and delivered hereunder, the valid and
binding obligations of the Issuer and to make this Indenture a valid and
binding agreement of the Issuer have been done.


 


This Indenture is subject to, and shall be governed
by, the mandatory provisions of the Trust Indenture Act of 1939, as amended,
that are required to be a part of and to govern indentures qualified under
the Trust Indenture Act of 1939, as amended.


 


Each party hereto agrees as follows for the benefit
of each other party and for the equal and ratable benefit of the Holders of the
Securities:


 


ARTICLE I



DEFINITIONS AND
INCORPORATION BY REFERENCE


 


1.1 Definitions


 


“Accredited Investor” has the meaning set
forth in Section 2.16(a) .


 


“Acquired Indebtedness” means (i) Indebtedness
of a Person existing at the time such Person becomes a Restricted Subsidiary or
Indebtedness of a Restricted Subsidiary assumed in connection with an Asset
Acquisition by such Restricted Subsidiary or (ii) Indebtedness secured by
a Lien encumbering an asset acquired by a Person at the time of such
acquisition.


 


“Actual Knowledge” means the actual fact or
statement of knowing, without any duty to make any investigation with regard
thereto.


 


“Additional Notes Collateral” has the meaning
set forth in Section 10.2(d) .


 


“Adjusted Consolidated Net Income” means, for
any period, the aggregate net income (or loss) of the Issuer and its Restricted
Subsidiaries for such period determined in conformity with GAAP; provided
that the following items shall be excluded in computing Adjusted Consolidated
Net Income (without duplication): 


 


	
   

  	
  (1)

  	
  the net income (or loss) of any Person that is not a Restricted
  Subsidiary (except to the extent of the amount of dividends or distributions
  paid in cash to the Issuer or any of its Restricted Subsidiaries);

  



 

















 


	
   

  	
  (2)

  	
  the net income (or loss) of any Person accrued prior to the date it
  becomes a Restricted Subsidiary or is merged into or consolidated with the
  Issuer or any of its Restricted Subsidiaries or all or substantially all of
  the property and assets of such Person are acquired by the Issuer or any of
  its Restricted Subsidiaries;

  
	
   

  	
   

  	
   

  
	
   

  	
  (3)

  	
  the net income of any Restricted Subsidiary (other than NELLC or any
  Subsidiary of NELLC) to the extent that the declaration or payment of
  dividends or similar distributions by such Restricted Subsidiary of such net
  income is not at the time permitted by the operation of the terms of its
  charter or any agreement, instrument, judgment, decree, order, statute, rule or
  governmental regulation applicable to such Restricted Subsidiary (other than
  any restriction permitted by clause (vi), (vii) or (viii) of Section 4.13)
  except to the extent that cash was distributed by such Restricted Subsidiary
  to the Issuer or another Restricted Subsidiary during such period;

  
	
   

  	
   

  	
   

  
	
   

  	
  (4)

  	
  any gains or losses (on an after-tax basis) attributable to sales of
  assets outside the ordinary course of business of the Issuer and its Restricted
  Subsidiaries;

  
	
   

  	
   

  	
   

  
	
   

  	
  (5)

  	
  solely for purposes of calculating the amount of Restricted Payments
  that may be made pursuant to clause (c) of the first paragraph of Section 4.3,
  any amount paid or accrued as dividends on preferred stock of the Issuer owned
  by Persons other than the Issuer and any of its Restricted Subsidiaries;

  
	
   

  	
   

  	
   

  
	
   

  	
  (6)

  	
  all extraordinary gains or losses;

  
	
   

  	
   

  	
   

  
	
   

  	
  (7)

  	
  income or loss attributable to discontinued operations (including,
  without limitation, operations disposed of during such period whether or not
  such operations were classified as discontinued);

  
	
   

  	
   

  	
   

  
	
   

  	
  (8)

  	
  any non-cash compensation expense realized from grants of stock
  appreciation or similar rights, stock options or other rights to officers,
  directors or employees of the Issuer or any of its Restricted Subsidiaries;

  
	
   

  	
   

  	
   

  
	
   

  	
  (9)

  	
  any net after-tax income or loss from discontinued operations;

  
	
   

  	
   

  	
   

  
	
   

  	
  (10)

  	
  the cumulative effect of a change in accounting principles;

  
	
   

  	
   

  	
   

  
	
   

  	
  (11)

  	
  any expense with respect to which, and to the extent that, the Issuer
  is indemnified by a third party (but only if and to the extent that the
  related indemnification payment from such third party is not included in the
  calculation of the net income of the Issuer);

  
	
   

  	
   

  	
   

  
	
   

  	
  (12)

  	
  any non-cash asset impairment charges resulting from application of
  Statement of Financial Accounting Standards No. 142; and

  
	
   

  	
   

  	
   

  
	
   

  	
  (13)

  	
  any non-cash gain or loss attributable to any Commodity Agreement
  until such time as it is settled, at which time the net gain or loss shall be
  included.

  



 


2

















 


“Affiliate” means, as applied to any Person,
any other Person directly or indirectly controlling, controlled by, or under
direct or indirect common control with, such Person. For purposes of this
definition, “control” (including, with correlative meanings, the terms “controlling,”
“controlled by” and “under common control with”), as applied to any Person,
means the possession, directly or indirectly, of the power to direct or cause
the direction of the management and policies of such Person, whether through
the ownership of voting securities, by contract or otherwise.


 


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


 


“Agent Members” has the meaning set forth in Section 2.15(a) .


 


“Asset Acquisition” means (1) an
investment by the Issuer or any of its Restricted Subsidiaries in any other
Person pursuant to which such Person shall become a Restricted Subsidiary or
shall be merged into or consolidated with the Issuer or any of its Restricted
Subsidiaries or (2) an acquisition by the Issuer or any of its Restricted
Subsidiaries of the property and assets of any Person other than the Issuer or
any of its Restricted Subsidiaries that constitute substantially all of a
division or line of business of such Person.


 


“Asset Disposition” means the sale or other
disposition by the Issuer or any of its Restricted Subsidiaries of (1) all
or substantially all of the Capital Stock of any Restricted Subsidiary or (2) all
or substantially all of the assets that constitute a division or line of
business of the Issuer or any of its Restricted Subsidiaries.


 


“Asset Sale” means any sale, transfer or
other disposition (including by way of merger or consolidation) in one
transaction or a series of related transactions by the Issuer or any of
its Restricted Subsidiaries to any Person other than the Issuer or any of its
Restricted Subsidiaries of: 


 


	
   

  	
  (1)

  	
  all or any of the Capital Stock of any Restricted Subsidiary,

  
	
   

  	
   

  	
   

  
	
   

  	
  (2)

  	
  all or substantially all of the property and assets of an operating
  unit or business of the Issuer or any of its Restricted Subsidiaries, or

  
	
   

  	
   

  	
   

  
	
   

  	
  (3)

  	
  any other property and assets (other than the Capital Stock or other
  Investment in an Unrestricted Subsidiary) of the Issuer or any of its
  Restricted Subsidiaries outside the ordinary course of business of the Issuer
  or such Restricted Subsidiary,

  



 


in each case, that is not governed by Article V;
provided that “Asset Sale” shall not include:


 


	
   

  	
  (a)

  	
  sales or other dispositions of inventory, receivables and other current
  assets,

  
	
   

  	
   

  	
   

  
	
   

  	
  (b)

  	
  sales, transfers or other dispositions of assets constituting a
  Permitted Investment or Restricted Payment permitted to be made under Section 4.3,

  
	
   

  	
   

  	
   

  
	
   

  	
  (c)

  	
  sales, transfers or other dispositions of assets with a fair market
  value not in excess of $3.0 million in any transaction or series of
  related transactions (other

  



 


3

















 


	
   

  	
   

  	
  than sales, transfers or other dispositions of any property or assets
  constituting part of the Primary Collateral),

  
	
   

  	
   

  	
   

  
	
   

  	
  (d)

  	
  any sale, transfer, assignment or other disposition of any property
  equipment that has become damaged, worn out, obsolete or otherwise unsuitable
  for use in connection with the business of the Issuer or its Restricted
  Subsidiaries,

  
	
   

  	
   

  	
   

  
	
   

  	
  (e)

  	
  sales or grants of licenses to use the Issuer’s or any Restricted
  Subsidiary’s patents, trade secrets, know-how and technology to the extent
  that such license does not prohibit the licensor from using the patent, trade
  secret, know-how or technology, or

  
	
   

  	
   

  	
   

  
	
   

  	
  (f)

  	
  foreclosures on assets.

  



 


“Attributable Debt” in respect of a Sale and
Leaseback Transaction means, at the time of determination, the present value of
the obligation of the lessee for net rental payments during the remaining term
of the lease included in such Sale and Leaseback Transaction, including any
period for which such lease has been extended or may, at the option of the
lessor, be extended. Such present value shall be calculated using a discount
rate equal to the rate of interest implicit in such transaction, determined in
accordance with GAAP.


 


“Aventine Renewable Energy” means Aventine
Renewable Energy, LLC (a direct subsidiary of the Issuer) and its successors.


 


“Average Life” means, at any date of
determination with respect to any debt security, the quotient obtained by
dividing (1) the sum of the products of (a) the number of years from
such date of determination to the dates of each successive scheduled principal
payment of such debt security and (b) the amount of such principal payment
by (2) the sum of all such principal payments.


 


“Bankruptcy Law” means Title 11, U.S. Code,
or any similar federal, state or foreign law for the relief of debtors.


 


“Board of Directors” means, with respect to
any Person, the Board of Directors of such Person or any duly authorized
committee of such Board of Directors. Unless otherwise indicated, the “Board of
Directors” refers to the Board of Directors of the Issuer.


 


“Board Resolution” means, with respect to any
Person, a copy of a resolution certified by the Secretary or an Assistant
Secretary of such Person to have been duly adopted by the Board of Directors of
such Person and to be in full force and effect on the date of such
certification, and delivered to the Trustee.


 


“Borrowing Base” means, as of any date, an
amount equal to the sum of:


 


	
   

  	
  (1)

  	
  85% of the book value of all accounts receivable owned by the Issuer
  and its Restricted Subsidiaries as of such date, plus

  
	
   

  	
   

  	
   

  
	
   

  	
  (2)

  	
  85% of the book value of all inventory,

  



 


4

















 


all calculated on a consolidated basis and in
accordance with GAAP. In the event that information with respect to any element
of the Borrowing Base is not available as of any date then the most recently
available information shall be utilized.


 


“Business Day” means any day other than a
Saturday, Sunday or any other day on which banking institutions in New York,
New York, Minneapolis, Minnesota or Houston, Texas are required or authorized
by law or other governmental action to be closed.


 


“Capital Stock” means, with respect to any
Person, any and all shares, interests, participations or other equivalents
(however designated, whether voting or non-voting) in equity of such Person,
whether outstanding on the Issue Date or issued thereafter, including, without
limitation, all common stock and preferred stock.


 


“Capitalized Lease” means, as applied to any
Person, any lease of any property (whether real, personal or mixed) of which
the discounted present value of the rental obligations of such Person, as
Lessee, in conformity with GAAP, is required to be capitalized on the balance
sheet of such Person.


 


“Capitalized Lease Obligations” means the
discounted present value of the rental obligations under a Capitalized Lease.


 


“Change of Control” means such time as:


 


	
   

  	
  (1)

  	
  the direct or indirect sale, transfer, conveyance or other
  disposition (other than by way of merger or consolidation), in one or a series of
  related transactions, of all or substantially all of the properties or assets
  of the Issuer and its Restricted Subsidiaries, taken as a whole, to any “person”
  (within the meaning of Section 13(d) of the Exchange Act);

  
	
   

  	
   

  	
   

  
	
   

  	
  (2)

  	
  the adoption of a plan relating to the liquidation or dissolution of
  the Issuer;

  
	
   

  	
   

  	
   

  
	
   

  	
  (3)

  	
  a “person” or “group” (within the meaning of Sections 13(d) and
  14(d)(2) of the Exchange Act) becomes the ultimate “beneficial owner”
  (as defined in Rule 13d-3 under the Exchange Act) of more than 50% of
  the total voting power of the Voting Stock of the Issuer on a fully diluted
  basis, and such ownership represents a greater percentage of the total voting
  power of the Voting Stock of the Issuer, on a fully diluted basis, than is
  held by the Permitted Holders on such date;

  
	
   

  	
   

  	
   

  
	
   

  	
  (4)

  	
  individuals who on the Issue Date constituted the Board of Directors
  (together with any new directors whose election by the Board of Directors or
  whose nomination by the Board of Directors for election by the Issuer’s
  stockholders was approved by a vote of at least two-thirds of the members of
  the Board of Directors then in office who either were members of the Board of
  Directors on the Issue Date or whose election or nomination for election was
  previously so approved) cease for any reason to constitute a majority of the
  members of the Board of Directors then in office; or

  



 


5

















 


	
   

  	
  (5)

  	
  the Issuer consolidates with, or merges with or into, any Person, or
  any Person consolidates with, or merges with or into, the Issuer, in any such
  event pursuant to a transaction in which any of the outstanding Voting Stock
  of the Issuer or such other Person is converted into or exchanged for cash,
  securities or other property, other than any such transaction where the
  Voting Stock of the Issuer outstanding immediately prior to such transaction
  is converted into or exchanged for (or continues as) Voting Stock (other than
  Disqualified Stock) of the surviving or transferee Person constituting a
  majority of the outstanding shares of Voting Stock of such surviving or
  transferee Person (immediately after giving effect to such issuance).

  



 


“Collateral” means, collectively, the Primary
Collateral and the Secondary Collateral.


 


“Collateral Account” means an account of the
Issuer established at JPMorgan Chase Bank and pledged as Primary Collateral to
the Collateral Agent for the benefit of the Trustee and the Holders and into
which the Net Cash Proceeds corresponding to the Primary Collateral sold in a
Primary Collateral Asset Sale or the Net Loss Proceeds from an Event of Loss
are deposited in accordance with the terms of Sections 4.18 and 4.23
respectively.


 


“Collateral Agent” means the Trustee, as
collateral agent under the Security Documents, and/or any other collateral
agent or trustee appointed in accordance with the terms of Section 10.1.


 


“Collateral Monies” means all cash and
Collateral Investments received by the Collateral Agent: 


 


	
   

  	
  (1)

  	
  upon the release of Primary Collateral from the Primary Collateral
  Lien or the Security Documents, including all proceeds of Primary Collateral
  Asset Sales and all monies received in respect of the principal of all
  purchase money, governmental and other obligations;

  
	
   

  	
   

  	
   

  
	
   

  	
  (2)

  	
  as Net Loss Proceeds;

  
	
   

  	
   

  	
   

  
	
   

  	
  (3)

  	
  pursuant to the Security Documents;

  
	
   

  	
   

  	
   

  
	
   

  	
  (4)

  	
  as proceeds of any sale or other disposition of all or any part of
  the Primary Collateral by or on behalf of the Collateral Agent or any
  collection, recovery, receipt, appropriation or other realization of or from
  all or any part of the Primary Collateral pursuant to this Indenture or
  any of the Security Documents or otherwise; or

  
	
   

  	
   

  	
   

  
	
   

  	
  (5)

  	
  for application as provided in the relevant provisions of this
  Indenture or any Security Document for which disposition is not otherwise
  specifically provided for in this Indenture or in any Security Document.

  



 


“Commission” means the Securities and
Exchange Commission, as from time to time constituted, created under the
Exchange Act or, with respect to the Commission’s duties under the TIA, if at
any time after the execution of this instrument such Commission is not existing
and


 


6

















 


performing the duties now assigned to it under the
TIA, then the body performing such duties at such time.


 


“Commodity Agreement” means any forward
contract, commodity swap agreement, commodity option agreement or other similar
agreement or arrangement.


 


“Completion Certificate” has the meaning set
forth in Section 4.24.


 


“Consolidated EBITDA” means, for any period,
Adjusted Consolidated Net Income for such period plus, to the extent
such amount was deducted in calculating such Adjusted Consolidated Net Income: 


 


	
   

  	
  (1)

  	
  Fixed Charges,

  
	
   

  	
   

  	
   

  
	
   

  	
  (2)

  	
  income taxes,

  
	
   

  	
   

  	
   

  
	
   

  	
  (3)

  	
  depreciation expense,

  
	
   

  	
   

  	
   

  
	
   

  	
  (4)

  	
  amortization expense,

  
	
   

  	
   

  	
   

  
	
   

  	
  (5)

  	
  all other non-cash items (including non-cash asset impairment charges
  and amortization of pre-paid cash expenses that were paid in a prior period)
  reducing Adjusted Consolidated Net Income (other than items that shall
  require cash payment within twelve months of the Transaction Date and for
  which an accrual or reserve is, or is required by GAAP to be, made (except
  for restructuring charges, in which case, Consolidated EBITDA shall be
  increased by an amount equal to the portion of such charges which do not
  reflect a cash expense during the period), provided that any such cash
  payment (except for any cash payment related to restructuring charges) made
  after such twelve-month period shall be deducted from net income in the
  calculation of Consolidated EBITDA for the Four Quarter Period in which such
  payment occurs), less all non-cash items increasing Adjusted Consolidated Net
  Income (other than items which represent the reversal of an accrual or
  reserve for anticipated cash charges in any prior period), all as determined
  on a consolidated basis for the Issuer and its Restricted Subsidiaries in conformity
  with GAAP;

  
	
   

  	
   

  	
   

  
	
   

  	
  (6)

  	
  any non-capitalized transaction costs incurred in connection with
  actual, proposed or abandoned financings, acquisitions or divestitures,
  including, but not limited to, any earn-out or similar expense in connection
  with acquisitions or dispositions and financing and refinancing fees and
  costs incurred in connection with the offering of the Securities and related
  transactions;

  
	
   

  	
   

  	
   

  
	
   

  	
  (7)

  	
  periodic pension and other post-retirement benefits net of any
  pension contributions during such period; and

  
	
   

  	
   

  	
   

  
	
   

  	
  (8)

  	
  any payments made pursuant to any Financial Advisory Agreement.

  



 


7

















 


provided that, if any Restricted Subsidiary is not a Wholly Owned Restricted
Subsidiary, Consolidated EBITDA shall be reduced (to the extent not otherwise
reduced in accordance with GAAP) by an amount equal to (A) the amount of
the Adjusted Consolidated Net Income attributable to such Restricted Subsidiary
multiplied by (B) the percentage ownership interest in the income of such
Restricted Subsidiary not owned on the last day of such period by the Issuer or
any of its Restricted Subsidiaries.


 


“Consolidated Interest Expense” means, for
any period, the aggregate amount of interest in respect of Indebtedness
(including, without limitation, amortization of original issue discount on any
Indebtedness and the interest portion of any deferred payment obligation,
calculated in accordance with the effective interest method of accounting; all
commissions, discounts and other fees and charges owed with respect to letters
of credit and bankers’ acceptance financing; the net costs (gains) associated
with Interest Rate Agreements; and Indebtedness that is Guaranteed or secured
by the Issuer or any of its Restricted Subsidiaries); imputed interest with
respect to Attributable Debt; and all but the principal component of rentals in
respect of Capitalized Lease Obligations paid, in each case, accrued or
scheduled to be paid or to be accrued by the Issuer and its Restricted
Subsidiaries during such period, less interest income for such period; excluding, however, (1) any amount of
such interest of any Restricted Subsidiary if the net income of such Restricted
Subsidiary is excluded in the calculation of Adjusted Consolidated Net Income pursuant
to clause (3) of the definition thereof (but only in the same proportion
as the net income of such Restricted Subsidiary is excluded from the
calculation of Adjusted Consolidated Net Income pursuant to clause (3) of
the definition thereof) and (2) any premiums, fees and expenses (and any
amortization thereof) payable in connection with the offering of the
Securities, all as determined on a consolidated basis (without taking into
account Unrestricted Subsidiaries) in conformity with GAAP.


 


“Corporate Trust Office” means the office of
the Trustee at which the corporate trust business of the Trustee shall, at any
particular time, be principally administered, which office is, at the date of
this Indenture, located at Wells Fargo Bank, N.A., Corporate Trust Services,
Sixth Street & Marquette Avenue, Minneapolis, MN 55479; Attn: Aventine
Administrator.


 


“Covenant Defeasance” has the meaning set
forth in Section 8.2(c) .


 


“Credit Agreement” means that certain Credit
Agreement, dated as of May 30, 2003, among Aventine Renewable Energy, Inc.,
Aventine Renewable Energy, various financial institutions party thereto and
JPMorgan Chase Bank, N.A., as administrative agent, including any related
notes, guarantees, collateral documents, instruments and agreements executed in
connection therewith, and, in each case, as amended, modified, renewed,
refunded, replaced or refinanced from time to time, including any agreement: 


 


	
   

  	
  (1)

  	
  extending or shortening the maturity of any Indebtedness incurred
  thereunder or contemplated thereby;

  
	
   

  	
   

  	
   

  
	
   

  	
  (2)

  	
  adding or deleting borrowers or guarantors thereunder;

  
	
   

  	
   

  	
   

  
	
   

  	
  (3)

  	
  increasing the amount of indebtedness incurred thereunder or
  available to be borrowed thereunder; or

  



 


8

















 


	
   

  	
  (4)

  	
  otherwise altering the terms and conditions thereof.

  



 


“Credit Facilities” means, with respect to
the Issuer and its Restricted Subsidiaries, one or more debt facilities
(including the Credit Agreement), commercial paper facilities, or indentures
providing for revolving credit loans, term loans, notes, or other financing or
letters of credit, or other credit facilities, in each case, as amended,
modified, renewed, refunded, replaced or refinanced from time to time.


 


“Currency Agreement” means any foreign
exchange contract, currency swap agreement or other similar agreement or
arrangement.


 


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


 


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


 


“Depository” shall mean The Depository Trust
Company, New York, New York, or a successor thereto registered under the
Exchange Act or other applicable statute or regulation.


 


“Disqualified Stock” means any class or series of
Capital Stock of any Person that by its terms or otherwise is (1) required
to be redeemed prior to the Stated Maturity of the Securities, (2) redeemable
at the option of the holder of such class or series of Capital Stock
at any time prior to the Stated Maturity of the Securities or (3) convertible
into or exchangeable for Capital Stock referred to in clause (1) or (2) above
or Indebtedness having a scheduled maturity prior to the Stated Maturity of the
Securities; provided that any Capital Stock that would not constitute
Disqualified Stock but for provisions thereof giving holders thereof the right
to require such Person to repurchase or redeem such Capital Stock upon the
occurrence of an “asset sale” or “change of control” occurring prior to the
Stated Maturity of the Securities shall not constitute Disqualified Stock if
the “asset sale” or “change of control” provisions applicable to such Capital
Stock are no more favorable to the holders of such Capital Stock than the
provisions contained in Sections 4.17 and 4.18 and such Capital Stock
specifically provides that such Person shall not repurchase or redeem any such
stock pursuant to such provision prior to the repurchase of such Securities as
are required to be repurchased pursuant to Sections 4.17 and 4.18.


 


“Domestic Subsidiary” means any Subsidiary of
the Issuer that is not Foreign Subsidiary.


 


“Escrow Agent” means JPMorgan Chase Bank,
N.A., as escrow agent under the Escrow Agreement.


 


“Escrow Agreement” means that certain
Security and Escrow Agreement, dated as of the Issue Date, among the Issuer,
the Trustee, the Collateral Agent and JPMorgan Chase Bank, N.A., in
substantially the form attached hereto as Exhibit F, as amended,
modified, restated, supplemented or replaced from time to time.


 


“Escrow Account” has the meaning set forth in
the Escrow Agreement.


 


“Event of Default” has the meaning set forth
in Section 6.1.


 


9

















 


“Event of Loss” means, with respect to any
Primary Collateral, (1) loss, destruction or damage of such Primary
Collateral, (2) condemnation, seizure or taking by exercise of the power
of eminent domain or otherwise of such Primary Collateral, or confiscation of
such Primary Collateral or the requisition of the use of such Primary
Collateral, or (3) settlement in lieu of clause (2) above.


 


“Exchange Act” means the Securities Exchange
Act of 1934, as amended, or any successor statute or statutes thereto.


 


“Exchange Notes” means the Senior Secured
Floating Rate Exchange Notes due 2011 (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 restrictive legend on the face of the
Initial Notes), to be issued in exchange for the Initial Notes pursuant to the
registered Exchange Offer.


 


“Exchange Offer” means the offer by the
Issuer to each Holder of the Initial Notes to exchange the aggregate principal
amount of Initial Notes held by such Holder for an equal aggregate principal
amount of Exchange Notes, all in accordance with the terms and conditions of
the Registration Rights Agreement.


 


“fair market value” means the price that
would be paid in an arm’s-length transaction between an informed and willing
seller under no compulsion to sell and an informed and willing buyer under no
compulsion to buy, as determined in good faith by the Board of Directors, whose
determination shall be conclusive if evidenced by a resolution of the Board of
Directors.


 


“Financial Advisory Agreement” means any
financial advisory agreement with Metalmark Capital LLC, MSCP Funds or any
Affiliate of the Issuer of the foregoing.


 


“First Priority Lien Obligations” means the
Indebtedness and other obligations (including, without limitation, any interest
that accrues after the commencement of any case, proceeding or other action
relating to the bankruptcy, insolvency, reorganization or similar proceeding of
the Aventine Renewable Energy or any of its Subsidiaries, whether or not a
claim for such post-petition interest is allowed in any such proceeding or
under applicable laws) under (a) the Credit Agreement and (b) any
other Indebtedness of the Issuer or any Subsidiary Guarantor in an aggregate
amount at the time of Incurrence thereof (in the case of clause (b)) not to
exceed 100% of the book value at such time of the Secondary Collateral; provided
that such Indebtedness described in clause (b) above shall be solely in
respect of borrowed money.


 


“First Priority Lien Representative” means
the administrative agent under the Credit Agreement and any replacements or
successors thereof.


 


“First Priority Liens” means all Liens that
secure the First Priority Lien Obligations.


 


“Fixed Charge Coverage Ratio” means, for any
Person on any Transaction Date, the ratio of (a) the aggregate amount of
Consolidated EBITDA for the then most recent four fiscal quarters prior to such
Transaction Date for which reports have been filed with the Commission or
provided to the Trustee (the “Four Quarter Period”) to (b) the
aggregate Fixed Charges during such Four Quarter Period. In making the
foregoing calculation:


 


10

















 


	
   

  	
  (1)

  	
  pro forma effect shall be given to any Indebtedness Incurred or
  repaid during the period (the “Reference Period”) commencing on the
  first day of the Four Quarter Period and ending on the Transaction Date
  (other than Indebtedness Incurred or repaid under a revolving credit
  agreement or similar arrangement) in each case as if such Indebtedness had
  been Incurred or repaid on the first day of such Reference Period;

  
	
   

  	
   

  	
   

  
	
   

  	
  (2)

  	
  Consolidated Interest Expense attributable to interest on any
  Indebtedness (whether existing or being Incurred) computed on a pro forma
  basis and bearing a floating interest rate shall be computed as if the rate
  in effect on the Transaction Date (taking into account any Interest Rate
  Agreement applicable to such Indebtedness if such Interest Rate Agreement has
  a remaining term in excess of 12 months or, if shorter, at least equal to the
  remaining term of such Indebtedness) had been the applicable rate for the
  entire period;

  
	
   

  	
   

  	
   

  
	
   

  	
  (3)

  	
  pro forma effect shall be given to Asset Dispositions and Asset
  Acquisitions (including giving pro forma effect to the application of
  proceeds of any Asset Disposition) that occur during such Reference Period as
  if they had occurred and such proceeds had been applied on the first day of
  such Reference Period, including giving effect to cost savings reasonably
  expected to be realized in connection with that acquisition, as determined in
  the good faith and reasonable judgment of the chief financial officer of the
  Issuer (regardless of whether those cost savings could then be reflected in
  pro forma financial statements under GAAP, Regulation S-X promulgated by the
  Commission or any other regulation or policy of the Commission); and

  
	
   

  	
   

  	
   

  
	
   

  	
  (4)

  	
  pro forma effect shall be given to asset dispositions and asset
  acquisitions (including giving pro forma effect to the application of
  proceeds of any asset disposition) that have been made by any Person that has
  become a Restricted Subsidiary or has been merged with or into the Issuer or
  any Restricted Subsidiary during such Reference Period and that would have
  constituted Asset Dispositions or Asset Acquisitions had such transactions
  occurred when such Person was a Restricted Subsidiary as if such asset
  dispositions or asset acquisitions were Asset Dispositions or Asset
  Acquisitions that occurred on the first day of such Reference Period,
  including giving effect to cost savings reasonably expected to be realized in
  connection with that acquisition, as determined in the good faith and
  reasonable judgment of the chief financial officer of the Issuer (regardless
  of whether those cost savings could then be reflected in pro forma financial
  statements under GAAP, Regulation S-X promulgated by the Commission or any
  other regulation or policy of the Commission); provided that to the
  extent that clause (3) or (4) requires that pro forma effect be
  given to an Asset Acquisition or Asset Disposition, such pro forma calculation
  shall be based upon the four full fiscal quarters immediately preceding the
  Transaction Date of the Person, or division or line of business of the
  Person, that is acquired or disposed for which financial information is
  available; provided further that if the entity or division or line of
  business acquired commenced commercial operations during such four fiscal
  quarters then such pro forma calculation shall be based on the annualized

  



 


11

















 


	
   

  	
   

  	
  results of operations of such entity or division or line of business
  since the date it began commercial operations. 

  



 


“Fixed Charges” means, with respect to any
Person for any period, the sum, without duplication, of: 


 


	
   

  	
  (1)

  	
  Consolidated Interest Expense plus

  
	
   

  	
   

  	
   

  
	
   

  	
  (2)

  	
  the product of (x) the amount of all dividend payments on any series preferred
  stock of such Person or any of its Restricted Subsidiaries (other than
  dividends payable solely in Capital Stock of such Person or such Restricted
  Subsidiary (other than Disqualified Stock) or to such Person or a Restricted
  Subsidiary of such Person) paid, accrued or scheduled to be paid or accrued
  during such period times (y) a fraction, the numerator of which is one and
  the denominator of which is one minus the then current effective consolidated
  federal, state and local income tax rate of such Person, expressed as a
  decimal, as determined on a consolidated basis in accordance with GAAP.

  



 


“Foreign Subsidiary” means any Subsidiary of
the Issuer that is an entity which is a controlled foreign corporation under Section 957
of the Internal Revenue Code.


 


“GAAP” means generally accepted accounting
principles in the United States of America as in effect as of the Issue Date as
determined by the Public Company Accounting Oversight Board. All ratios and
computations contained or referred to in this Indenture shall be computed in
conformity with GAAP applied on a consistent basis, except that calculations
made for purposes of determining compliance with the terms of the covenants and
with other provisions of this Indenture shall be made without giving effect to (1) the
amortization of any expenses incurred in connection with the offering of the
Securities and (2) except as otherwise provided, the amortization of any
amounts required or permitted by Accounting Principles Board Opinion Nos. 16
and 17.


 


“Global Security” has the meaning set forth
in Section 2.1.


 


“Guarantee” means any obligation, contingent
or otherwise, of any Person directly or indirectly guaranteeing any Indebtedness
of any other Person and, without limiting the generality of the foregoing, any
obligation, direct or indirect, contingent or otherwise, of such Person (1) to
purchase or pay (or advance or supply funds for the purchase or payment of)
such Indebtedness of such other Person (whether arising by virtue of
partnership arrangements, or by agreements to keep-well, to purchase assets,
goods, securities or services (unless such purchase arrangements are on arm’s-length
terms and are entered into in the ordinary course of business), to take-or-pay,
or to maintain financial statement conditions or otherwise) or (2) entered
into for purposes of assuring in any other manner the obligee of such
Indebtedness of the payment thereof or to protect such obligee against loss in
respect thereof (in whole or in part); provided that the term “Guarantee”
shall not include endorsements for collection or deposit in the ordinary course
of business. The term “Guarantee” used as a verb has a corresponding meaning.


 


“Holder” means a holder of any Securities.


 


12

















 


“Incur” means, with respect to any
Indebtedness, to incur, create, issue, assume, Guarantee or otherwise become
liable for or with respect to, or become responsible for, the payment of,
contingently or otherwise, such Indebtedness; provided that (1) any
Indebtedness of a Person existing at the time such Person becomes a Restricted
Subsidiary shall be deemed to be incurred by such Restricted Subsidiary at the
time it becomes a Restricted Subsidiary and (2) neither the accrual of
interest nor the accretion of original issue discount nor the payment of
interest in the form of additional Indebtedness (to the extent provided
for when the Indebtedness on which such interest is paid was originally issued)
shall be considered an Incurrence of Indebtedness.


 


“Indebtedness” means, with respect to any
Person at any date of determination (without duplication): 


 


	
   

  	
  (1)

  	
  all indebtedness of such Person for borrowed money;

  
	
   

  	
   

  	
   

  
	
   

  	
  (2)

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

  
	
   

  	
   

  	
   

  
	
   

  	
  (3)

  	
  all obligations of such Person in respect of letters of credit or
  other similar instruments (including reimbursement obligations with respect
  thereto, but excluding obligations with respect to letters of credit
  (including trade letters of credit) securing obligations (other than
  obligations described in clause (1), (2), (5), (6) or (7)) entered into
  in the ordinary course of business of such Person to the extent such letters
  of credit are not drawn upon or, if drawn upon, to the extent such drawing is
  reimbursed no later than the third Business Day following receipt by such
  Person of a demand for reimbursement);

  
	
   

  	
   

  	
   

  
	
   

  	
  (4)

  	
  all obligations of such Person to pay the deferred and unpaid
  purchase price of any property or services, which purchase price is due more
  than six months after the date of placing such property in service or taking
  delivery and title thereto or the completion of such services, except Trade
  Payables;

  
	
   

  	
   

  	
   

  
	
   

  	
  (5)

  	
  all Capitalized Lease Obligations and Attributable Debt;

  
	
   

  	
   

  	
   

  
	
   

  	
  (6)

  	
  all Indebtedness of other Persons secured by a Lien on any asset of
  such Person, whether or not such Indebtedness is assumed by such Person; provided
  that the amount of such Indebtedness shall be the lesser of (A) the
  fair market value of such asset at such date of determination and (B) the
  amount of such Indebtedness;

  
	
   

  	
   

  	
   

  
	
   

  	
  (7)

  	
  all Indebtedness of other Persons Guaranteed by such Person to the
  extent such Indebtedness is Guaranteed by such Person;

  
	
   

  	
   

  	
   

  
	
   

  	
  (8)

  	
  to the extent not otherwise included in this definition, obligations
  under Commodity Agreements, Currency Agreements and Interest Rate Agreements
  (other than Commodity Agreements, Currency Agreements and Interest Rate
  Agreements designed solely to protect the Issuer or its Restricted
  Subsidiaries against fluctuations in commodity prices, foreign currency
  exchange rates or interest rates and that do not increase the Indebtedness of
  the obligor outstanding

  



 


13

















 


	
   

  	
   

  	
  at any time other than as a result of fluctuations in commodity
  prices, foreign currency exchange rates or interest rates or by reason of
  fees, indemnities and compensation payable thereunder); and

  
	
   

  	
   

  	
   

  
	
   

  	
  (9)

  	
  all Disqualified Stock issued by such Person with the amount of
  Indebtedness represented by such Disqualified Stock being equal to the
  greater of its voluntary or involuntary liquidation preference and its
  maximum fixed repurchase price, but excluding accrued dividends, if any.

  



 


The amount of Indebtedness of any Person at any date
shall be the outstanding balance at such date of all unconditional obligations
as described above and, with respect to contingent obligations, the maximum
liability upon the occurrence of the contingency giving rise to the obligation,
provided that:


 


	
   

  	
  (A)

  	
  the amount outstanding at any time of any Indebtedness issued with
  original issue discount is the face amount of such Indebtedness less the
  remaining unamortized portion of the original issue discount of such
  Indebtedness at such time as determined in conformity with GAAP;

  
	
   

  	
   

  	
   

  
	
   

  	
  (B)

  	
  money borrowed and set aside at the time of the Incurrence of any
  Indebtedness in order to prefund the payment of the interest on such
  Indebtedness shall not be deemed to be “Indebtedness” so long as such money
  is held to secure the payment of such interest; and

  
	
   

  	
   

  	
   

  
	
   

  	
  (C)

  	
  Indebtedness shall not include:

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  (x)

  	
  any liability for federal, state, local or other taxes;

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  (y)

  	
  performance, surety or appeal bonds provided in the ordinary course
  of business; or

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  (z)

  	
  agreements providing for indemnification, adjustment of purchase
  price or similar obligations, or Guarantees or letters of credit, surety
  bonds or performance bonds securing any obligations of the Issuer or any of
  its Restricted Subsidiaries pursuant to such agreements, in any case,
  Incurred in connection with the disposition of any business, assets or a
  Subsidiary (other than Guarantees of Indebtedness Incurred by any Person
  acquiring all or any portion of such business, assets or Restricted
  Subsidiary for the purpose of financing such acquisition), so long as the
  principal amount does not exceed the gross proceeds actually received by the
  Issuer or any Restricted Subsidiary in connection with such disposition.

  



 


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


 


“Initial Notes” means the Senior Secured
Floating Rate Notes due 2011 of the Issuer issued on the Issue Date and
authenticated and delivered under this Indenture pursuant to Section


 


14

















 


2.2 and any other notes (other than Exchange Notes)
issued after the Issue Date in accordance with clause (iii) of the fourth
paragraph of Section 2.2.


 


“Institutional Accredited Investor” has the
meaning set forth in Section 2.16(a) .


 


“Initial Subsidiary Guarantors” means
Aventine Renewable Energy, LLC and Aventine Renewable Energy, Inc., in
each case, together with its successors.


 


“Intercreditor Agreement” means that certain
Intercreditor Agreement, dated as of the Issue Date, between the Collateral
Agent and the First Priority Lien Representative, and acknowledged and
consented to by the Issuer, Aventine Renewable Energy and Aventine Renewable
Energy, Inc. (in substantially the form attached hereto as Exhibit G)
as amended, modified, restated, supplemented or replaced from time to time.


 


“Interest Payment Date” means each March 15,
June 15, September 15 and December 15, beginning March 15,
2006.


 


“Interest Rate Agreement” means any interest rate protection
agreement, interest rate future agreement, interest rate option agreement,
interest rate swap agreement, interest rate cap agreement, interest rate collar
agreement, interest rate hedge agreement, option or future contract or other
similar agreement or arrangement.


 


“Investment” in any Person means any direct
or indirect advance, loan or other extension of credit (including, without
limitation, by way of Guarantee or similar arrangement; but excluding advances
to customers or suppliers in the ordinary course of business that are, in
conformity with GAAP, recorded as accounts receivable, prepaid expenses or
deposits on the balance sheet of the Issuer or its Restricted Subsidiaries and
endorsements for collection or deposit arising in the ordinary course of
business) or capital contribution to (by means of any transfer of cash or other
property to others or any payment for property or services for the account or
use of others), or any purchase or acquisition of Capital Stock, bonds, notes,
debentures or other similar instruments issued by, such Person and shall
include (1) the designation of a Restricted Subsidiary as an Unrestricted
Subsidiary and (2) the retention of the Capital Stock (or any other Investment)
by the Issuer or any of its Restricted Subsidiaries of (or in) any Person that
has ceased to be a Restricted Subsidiary, including without limitation, by
reason of any transaction permitted by clause (c) or (d) of Section 4.14.
For purposes of the definition of “Unrestricted Subsidiary” and Section 4.14,
(a) the amount of or a reduction in an Investment shall be equal to the
fair market value thereof at the time such Investment is made or reduced and (b) in
the event the Issuer or a Restricted Subsidiary makes an Investment by
transferring assets to any Person and as part of such transaction receives
Net Cash Proceeds, the amount of such Investment shall be the fair market value
of the assets less the amount of Net Cash Proceeds so received, provided
the Net Cash Proceeds are applied in accordance with clause (b)(i) or (b)(ii) of
Section 4.18.


 


“Issuer” means the party named as such in
this Indenture until a successor replaces it pursuant to this Indenture and
thereafter shall mean such successor Person.


 


“Issue Date” means December 17, 2004,
the date of original issuance of the Initial Notes.


 


15

















 


“Legal Defeasance” has the meaning set forth
in Section 8.2(b).


 


“Lien” means any mortgage, pledge, security
interest, encumbrance, lien or charge of any kind (including, without
limitation, any conditional sale or other title retention agreement or lease in
the nature thereof or any agreement to give any security interest).


 


“Maturity Date” means December 15, 2011.


 


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


 


“Mortgage” means that certain Mortgage,
Assignment, Assignment of Rents, Security Agreement, Fixture Filing and
Financing Statement, dated as of the Issue Date, by Aventine Renewable Energy, Inc.
to the Collateral Agent (in substantially the form attached hereto as Exhibit H,
as amended, modified, restated, supplemented or replaced from time to time).


 


“MSCP Funds” means Morgan Stanley Dean Witter
Capital Partners IV, L.P., MSDW IV 892 Investors, L.P., Morgan Stanley Dean
Witter Capital Investors IV, L.P., MSDW Capital Partners IV, LLC and MSDW
Capital Partners IV, Inc. and their Affiliates, and any successors of the
foregoing.


 


“NELLC” means Nebraska Energy, LLC and its
successors.


 


“Net Cash Proceeds” means:


 


	
   

  	
  (a)

  	
  with respect to any Asset Sale, the proceeds of such Asset Sale in
  the form of cash or cash equivalents, including payments in respect of
  deferred payment obligations (to the extent corresponding to the principal,
  but not interest, component thereof) when received in the form of cash
  or cash equivalents and proceeds from the conversion of other property
  received when converted to cash or cash equivalents, net of

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  (1)

  	
  brokerage commissions and other fees and expenses (including fees and
  expenses of counsel and investment bankers) related to such Asset Sale;

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  (2)

  	
  provisions for all taxes (whether or not such taxes will actually be
  paid or are payable) as a result of such Asset Sale without regard to the
  consolidated results of operations of the Issuer and its Restricted
  Subsidiaries, taken as a whole;

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  (3)

  	
  payments made to repay Indebtedness or any other obligation
  outstanding at the time of such Asset Sale that either (x) is secured by a
  Lien on the property or assets sold or (y) is required to be paid as a result
  of such sale; and

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  (4)

  	
  appropriate amounts to be provided by the Issuer or any Restricted
  Subsidiary as a reserve against any liabilities associated with such Asset
  Sale, including, without limitation, pension and other post-employment
  benefit liabilities, liabilities related to environmental matters and
  liabilities

  



 


16

















 


	
   

  	
   

  	
   

  	
  under any indemnification obligations associated with such Asset
  Sale, all as determined in conformity with GAAP; and

  
	
   

  	
   

  	
   

  
	
   

  	
  (b)

  	
  with respect to any issuance or sale of Capital Stock, the proceeds
  of such issuance or sale in the form of cash or cash equivalents,
  including payments in respect of deferred payment obligations (to the extent
  corresponding to the principal, but not interest, component thereof) when
  received in the form of cash or cash equivalents and proceeds from the
  conversion of other property received when converted to cash or cash
  equivalents, net of attorney’s fees, accountants’ fees, underwriters’ or
  placement agents’ fees, discounts or commissions and brokerage, consultant
  and other fees incurred in connection with such issuance or sale and net of
  taxes paid or payable as a result thereof.

  



 


“Net Loss Proceeds” means, with respect to
any Event of Loss, the proceeds in the form of (a) cash or Temporary
Cash Investments and (b) insurance proceeds, condemnation awards or
damages awarded by any judgment, in each case, received by the Issuer or any of
its Subsidiaries from such Event of Loss, net of: 


 


	
   

  	
  (1)

  	
  reasonable out-of-pocket expenses and fees relating to such Event of
  Loss (including without limitation, legal, accounting and appraisal or
  insurance adjuster fees);

  
	
   

  	
   

  	
   

  
	
   

  	
  (2)

  	
  taxes paid or payable after taking into account any reduction in
  consolidated tax liability due to available tax credits or deductions and any
  tax sharing arrangements;

  
	
   

  	
   

  	
   

  
	
   

  	
  (3)

  	
  any repayment of Indebtedness that is secured by, or directly related
  to, the property or assets that are the subject of such Event of Loss; and

  
	
   

  	
   

  	
   

  
	
   

  	
  (4)

  	
  appropriate amounts to be provided by the Issuer or any Restricted
  Subsidiary against any liabilities associated with such Event of Loss,
  including, without limitation, pension and other post-employment benefit liabilities,
  liabilities related to environmental matters and liabilities under any
  indemnification obligations associated with such Event of Loss, all as
  determined in conformity with GAAP.

  



 


“Non-Recourse Debt” means
Indebtedness:


 


	
   

  	
  (1)

  	
  as to which neither the Issuer nor any of its Restricted Subsidiaries
  (a) provides credit support of any kind (including any undertaking,
  agreement or instrument that would constitute Indebtedness), (b) is
  directly or indirectly liable as a guarantor or otherwise, or (c) constitutes
  the lender;

  
	
   

  	
   

  	
   

  
	
   

  	
  (2)

  	
  no default with respect to which (including any rights that the
  holders of the Indebtedness may have to take enforcement action against
  the relevant Unrestricted Subsidiary) would permit upon notice, lapse of time
  or both any holder of any other Indebtedness of the Issuer or any of its
  Restricted Subsidiaries to declare a default on such other Indebtedness or
  cause the payment of the Indebtedness to be accelerated or payable prior to
  its Stated Maturity; and

  



 


17

















 


	
   

  	
  (3)

  	
  as to which the lenders have been notified in writing that they shall
  not have any recourse to the stock or assets of the Issuer or any of its
  Restricted Subsidiaries.

  



 


“Non-U.S. Person” means a Person that is not a
“U.S. Person” (as defined in Regulation S).


 


“Note Guarantee” means any Guarantee of the
obligations of the Issuer under this Indenture and the Securities by any
Subsidiary Guarantor.


 


“Note Liens” means the Liens on the
Collateral described in the Security Documents and granted in favor of the
Collateral Agent for the benefit of the Trustee and the Holders of the
Securities.


 


“Obligations” means all obligations for
principal, premium, interest, penalties, fees, indemnifications,
reimbursements, damages and other liabilities payable under the documentation
governing any Indebtedness.


 


“Obligors” means the Issuer and each
Subsidiary Guarantor.


 


“Offer to Purchase” has the meaning set forth
in Section 3.7.


 


“Offering Memorandum” means the Offering
Memorandum dated December 10, 2004 relating to the offering of the Initial
Notes issued on the Issue Date.


 


“Officer” means, with respect to any Person,
the Chairman of the Board, the Chief Executive Officer, the President, any Vice
President, the Chief Financial Officer, the Controller, the Treasurer or the
Secretary of such Person.


 


“Officers’ Certificate” means, with respect
to any Person, a certificate signed by two Officers of such Person.


 


“Offshore Global Securities” has the meaning
provided in Section 2.1.


 


“Offshore Physical Securities” has the
meaning provided in Section 2.1.


 


“Opinion of Counsel” means a written opinion
from legal counsel, which opinion and counsel are reasonably acceptable to the
Trustee.


 


“Parent” means Aventine Renewable Energy
Holdings, LLC (or any successor thereto).


 


“Paying Agent” has the meaning set forth in Section 2.3.


 


“Pekin Facility Expansion” has the meaning
set forth in Section 4.24.


 


“Permanent Offshore Global Securities” has
the meaning provided in Section 2.1.


 


“Permitted Business” means the business of
the Issuer and its Subsidiaries engaged in on the Issue Date and any other
activities that are related, ancillary or complementary to such business.


 


18

















 


“Permitted Holder” means, at any time, (i) Aventine
Renewable Energy Holdings, LLC and any other direct or indirect parent company
of the Issuer, (ii) Metalmark Capital LLC and its Affiliates and (iii) the
MSCP Funds and its Affiliates. In addition, any person or group whose acquisition
of beneficial ownership constitutes a Change of Control in respect of which an
Offer to Purchase is made in accordance with the requirements of this Indenture
shall thereafter, together with its Affiliates, constitute an additional
Permitted Holder.


 


“Permitted Investment” means:


 


	
   

  	
  (1)

  	
  an Investment in the Issuer or a Restricted Subsidiary or a Person
  which will, upon the making of such Investment, become a Restricted
  Subsidiary or be merged or consolidated with or into, or transfer or convey
  all or substantially all its assets to, the Issuer or a Restricted
  Subsidiary; provided, however,
  that any such Investment that is or involves a direct or indirect advance,
  loan, capital contribution, transfer, assignment, conveyance or other
  disposition of any property or assets constituting all or part of the
  Primary Collateral (a) to any entity that is not a Subsidiary Guarantor
  shall not be a Permitted Investment and (b) to any entity that is a
  Subsidiary Guarantor shall not be Permitted Investment unless such property
  or assets shall, immediately following the consummation of such Investment,
  be subject to the Primary Collateral Lien to the same extent as such property
  or assets were so subject immediately prior to such consummation;

  
	
   

  	
   

  	
   

  
	
   

  	
  (2)

  	
  Temporary Cash Investments;

  
	
   

  	
   

  	
   

  
	
   

  	
  (3)

  	
  payroll, travel and similar advances to cover matters that are
  expected at the time of such advances ultimately to be treated as expenses in
  accordance with GAAP;

  
	
   

  	
   

  	
   

  
	
   

  	
  (4)

  	
  stock, obligations or securities received in satisfaction of
  judgments;

  
	
   

  	
   

  	
   

  
	
   

  	
  (5)

  	
  an Investment in an Unrestricted Subsidiary consisting solely of an
  Investment in another Unrestricted Subsidiary;

  
	
   

  	
   

  	
   

  
	
   

  	
  (6)

  	
  Commodity Agreements, Interest Rate Agreements and Currency
  Agreements designed solely to protect the Issuer or its Restricted
  Subsidiaries against fluctuations in commodity prices, interest rates or
  foreign currency exchange rates;

  
	
   

  	
   

  	
   

  
	
   

  	
  (7)

  	
  loans and advances to employees and officers of the Issuer and its
  Restricted Subsidiaries made in the ordinary course of business for bona fide
  business purposes not to exceed $1.0 million in the aggregate at any one time
  outstanding;

  
	
   

  	
   

  	
   

  
	
   

  	
  (8)

  	
  Investments in securities of trade creditors or customers received

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  (a)

  	
  pursuant to any plan of reorganization or similar arrangement upon
  the bankruptcy or insolvency of such trade creditors or customers or

  



 


19

















 


	
   

  	
   

  	
  (b)

  	
  in settlement of delinquent obligations of, and other disputes with,
  customers, suppliers and others, in each case arising in the ordinary course
  of business or otherwise in satisfaction of a judgment;

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  (9)

  	
  Investments

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  (a)

  	
  made by the Issuer or its Restricted Subsidiaries consisting of
  consideration received in connection with an Asset Sale made in compliance
  with Section 4.18; or

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  (b)

  	
  consisting of consideration received by the Issuer or any of its
  Restricted Subsidiaries in connection with a transaction that would be an
  Asset Sale if it consisted of aggregate consideration received by the Issuer
  or any of its Restricted Subsidiaries of $1.0 million or more;

  
	
   

  	
   

  	
   

  
	
   

  	
  (10)

  	
  Investments of a Person or any of its Subsidiaries existing at the
  time such Person becomes a Restricted Subsidiary of the Issuer or at the time
  such Person merges or consolidates with the Issuer or any of its Restricted
  Subsidiaries, in either case, in compliance with this Indenture; provided that
  such Investments were not made by such Person in connection with, or in
  anticipation or contemplation of, such Person becoming a Restricted
  Subsidiary of the Issuer or such merger or consolidation;

  
	
   

  	
   

  	
   

  
	
   

  	
  (11)

  	
  repurchases of the Securities;

  
	
   

  	
   

  	
   

  
	
   

  	
  (12)

  	
  any Investment in a Person engaged in a Permitted Business (other
  than an Investment in a Subsidiary of the Issuer) having an aggregate fair market
  value, taken together with all other Investments made pursuant to this clause
  (12) that are at that time outstanding, not to exceed 15% of Total Assets at
  the time of such Investment (with the fair market value of each Investment
  being measured at the time made and without giving effect to subsequent
  changes in value); provided that such Person shall not use the
  proceeds of such Investment to purchase, redeem, retire or otherwise acquire
  for value any shares of the Capital Stock of the Issuer;

  
	
   

  	
   

  	
   

  
	
   

  	
  (13)

  	
  any Investment in a Person from whom the Issuer or any Restricted
  Subsidiary purchases ethanol or for whom the Issuer or any Restricted
  Subsidiary markets ethanol, in each case, not to exceed $3.0 million in any
  single Person; provided that such Person shall not use the proceeds of
  such Investment to purchase, redeem, retire or otherwise acquire for value
  any shares of the Capital Stock of the Issuer; and

  
	
   

  	
   

  	
   

  
	
   

  	
  (14)

  	
  additional Investments (including Investments in joint ventures and
  Unrestricted Subsidiaries) not to exceed $1.0 million at any one time
  outstanding; provided that, in the event of an Investment in any
  Person that is not a Restricted Subsidiary, such Person shall not use the
  proceeds of such Investment to purchase, redeem, retire or otherwise acquire
  for value any shares of the Capital Stock of the Issuer.

  



 


20

















 


“Permitted Liens” means:


 


	
   

  	
  (1)

  	
  Liens for taxes, assessments, governmental charges or claims that are
  being contested in good faith by appropriate legal proceedings promptly
  instituted and diligently conducted and for which a reserve or other
  appropriate provision, if any, as shall be required in conformity with GAAP
  shall have been made;

  
	
   

  	
   

  	
   

  
	
   

  	
  (2)

  	
  statutory and common law Liens of landlords and carriers,
  warehousemen, mechanics, suppliers, materialmen, repairmen or other similar
  Liens arising in the ordinary course of business and with respect to amounts
  not yet delinquent or being contested in good faith by appropriate legal
  proceedings promptly instituted and diligently conducted and for which a
  reserve or other appropriate provision, if any, as shall be required in
  conformity with GAAP shall have been made;

  
	
   

  	
   

  	
   

  
	
   

  	
  (3)

  	
  Liens incurred or deposits made in the ordinary course of business in
  connection with workers’ compensation, unemployment insurance and other types
  of social security;

  
	
   

  	
   

  	
   

  
	
   

  	
  (4)

  	
  Liens incurred or deposits made to secure the performance of tenders,
  bids, leases, statutory or regulatory obligations, bankers’ acceptances,
  surety and appeal bonds, government contracts, performance and
  return-of-money bonds and other obligations of a similar nature incurred in
  the ordinary course of business (exclusive of obligations for the payment of
  borrowed money);

  
	
   

  	
   

  	
   

  
	
   

  	
  (5)

  	
  easements, rights-of-way, municipal and zoning ordinances and similar
  charges, encumbrances, title defects or other irregularities that do not
  materially interfere with the ordinary course of business of the Issuer or
  any of its Restricted Subsidiaries;

  
	
   

  	
   

  	
   

  
	
   

  	
  (6)

  	
  leases or subleases granted to others that do not materially
  interfere with the ordinary course of business of the Issuer and its
  Restricted Subsidiaries, taken as a whole;

  
	
   

  	
   

  	
   

  
	
   

  	
  (7)

  	
  Liens encumbering property or assets under construction arising from
  progress or partial payments by a customer of the Issuer or its Restricted
  Subsidiaries relating to such property or assets;

  
	
   

  	
   

  	
   

  
	
   

  	
  (8)

  	
  any interest or title of a lessor in the property subject to any
  Capitalized Lease or operating lease;

  
	
   

  	
   

  	
   

  
	
   

  	
  (9)

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

  
	
   

  	
   

  	
   

  
	
   

  	
  (10)

  	
  Liens on property of, or on shares of Capital Stock or Indebtedness
  of, any Person existing at the time such Person becomes, or becomes a part of,
  any Restricted Subsidiary; provided that such Liens do not extend to
  or cover any property or assets of the Issuer or any Restricted Subsidiary
  other than the property or assets acquired;

  



 


21

















 


	
   

  	
  (11)

  	
  Liens in favor of the Issuer or any Restricted Subsidiary;

  
	
   

  	
   

  	
   

  
	
   

  	
  (12)

  	
  Liens arising from the rendering of a final judgment or order against
  the Issuer or any Restricted Subsidiary that does not give rise to an Event
  of Default;

  
	
   

  	
   

  	
   

  
	
   

  	
  (13)

  	
  Liens securing reimbursement obligations with respect to letters of
  credit that encumber documents and other property relating to such letters of
  credit and the products and proceeds thereof;

  
	
   

  	
   

  	
   

  
	
   

  	
  (14)

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

  
	
   

  	
   

  	
   

  
	
   

  	
  (15)

  	
  Liens encumbering customary initial deposits and margin deposits, and
  other Liens that are within the general parameters customary in the industry
  and incurred in the ordinary course of business, in each case, securing
  Indebtedness under Interest Rate Agreements, Currency Agreements or Commodity
  Agreements designed solely to protect the Issuer or any of its Restricted
  Subsidiaries from fluctuations in interest rates, currencies or the price of
  commodities;

  
	
   

  	
   

  	
   

  
	
   

  	
  (16)

  	
  Liens arising out of conditional sale, title retention, consignment
  or similar arrangements for the sale of goods entered into by the Issuer or
  any of its Restricted Subsidiaries in the ordinary course of business in
  accordance with the past practices of the Issuer and its Restricted
  Subsidiaries prior to the Issue Date;

  
	
   

  	
   

  	
   

  
	
   

  	
  (17)

  	
  Liens on or sales of receivables (other than Liens on receivables of
  the Issuer or any Subsidiary Guarantor);

  
	
   

  	
   

  	
   

  
	
   

  	
  (18)

  	
  Liens in the ordinary course of business securing Indebtedness not
  exceeding $1.0 million at any one time outstanding that (a) are not
  incurred in connection with borrowing of money and (b) do not materially
  detract from the value of the property or materially impair its use;

  
	
   

  	
   

  	
   

  
	
   

  	
  (19)

  	
  Liens securing insurance premium financing arrangements, provided that
  such Lien is limited to the applicable insurance contracts;

  
	
   

  	
   

  	
   

  
	
   

  	
  (20)

  	
  Liens securing additional Indebtedness of the Issuer and its
  Restricted Subsidiaries in an aggregate principal amount not to exceed $3.0
  million at any one time outstanding; and

  
	
   

  	
   

  	
   

  
	
   

  	
  (21)

  	
  Liens securing Indebtedness permitted under clause (4) of the
  second paragraph of clause (a) of Section 4.4, provided that,
  in the event such Indebtedness is Incurred for the purpose of defeasing the
  Securities, such Lien does not cover any of the cash or cash equivalents that
  are deposited with the Trustee or otherwise to defease the Securities.

  



 


22

















 


“Person” means an individual, partnership,
corporation, limited liability company, unincorporated organization, trust or
joint venture, or a governmental agency or political subdivision thereof or any
other entity.


 


“Physical Securities” has the meaning
provided in Section 2.1.


 


“Primary Collateral” means (1) all
property and assets pledged by Aventine Renewable Energy, Inc. to the
Collateral Agent pursuant to the Mortgage, (2) all property and assets
pledged by Aventine Renewable Energy Holdings, Inc. pursuant to the Escrow
Agreement, (3) any Additional Securities Collateral, (4) all
Collateral Monies, (5) any Replacement Assets acquired in replacement of
the collateral described in clause (1) or (3) in accordance with Section 4.18
or 4.23.


 


“Primary Collateral Liens” means the Liens
granted to the Collateral Agent in respect of any and all Primary Collateral
pursuant to (a) the Mortgage, (b) the Escrow Agreement and (c) Sections
4.18, 4.23 and 10.2(d) hereof and clause (1)(b) of the definition of
Permitted Investment.


 


“Primary Collateral Asset Sale” means an
Asset Sale consisting of the disposition of assets constituting Primary
Collateral (including the disposition of Capital Stock of a Subsidiary which
results in the disposition of assets constituting Primary Collateral); provided
that if an Asset Sale results in the disposition of assets constituting Primary
Collateral and Secondary Collateral, the term “Primary Collateral Asset Sale”
shall be limited to the portion of the Collateral so sold that constitutes
Primary Collateral.


 


“Private Placement Legend” means the legend
initially set forth on the Initial Notes in the form set forth in the
first paragraph of Section 2.14.


 


“QIB” means any “qualified institutional
buyer” (as defined under the Securities Act).


 


“Qualified Interest Rate Agreement” means an
Interest Rate Agreement with a bank or other financial institution organized
under the laws of the United States or any state thereof the long-term U.S.
dollar-denominated debt obligations of which are rated at least AA by S&P
and Aa2 by Moody’s.


 


“Qualified Proceeds” means any of the
following or any combination of the following:


 


	
   

  	
  (1)

  	
  Net Cash Proceeds;

  
	
   

  	
   

  	
   

  
	
   

  	
  (2)

  	
  the fair market value of any assets (other than Investments) that are
  used or useful in a Permitted Business; and

  
	
   

  	
   

  	
   

  
	
   

  	
  (3)

  	
  the fair market value of any Capital Stock of any Person engaged in a
  Permitted Business if

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  (a)

  	
  that Person is or in connection with the receipt by the Issuer or any
  Restricted Subsidiary of that Capital Stock becomes a Restricted Subsidiary
  of the Issuer; or

  



 


23

















 


	
   

  	
   

  	
  (b)

  	
  that Person is merged, consolidated or amalgamated with or into, or
  transfers or conveys substantially all of its assets to, or is liquidated
  into, the Issuer or any Restricted Subsidiary of the Issuer.

  



 


“Record Date” means the applicable record
date specified in the Securities.


 


“Redemption Date,” when used with respect to
any Security to be redeemed, means the date fixed for such redemption pursuant
to this Indenture and the Securities.


 


“Redemption Price,” when used with respect to
any Security to be redeemed, means the price fixed for such redemption, payable
in immediately available funds, pursuant to this Indenture and the Securities.


 


“Registrar” has the meaning set forth in Section 2.3.


 


“Registration Rights Agreement” means the
Registration Rights Agreement, dated the Issue Date among the Issuer, the
Initial Subsidiary Guarantors, Morgan Stanley & Co. Incorporated, J.P.
Morgan Securities Inc., Banc of America Securities LLC and Bear, Stearns &
Co. Inc.


 


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


 


“Replacement Assets” means, on any date,
property or assets of a nature or type or that are used in a Permitted Business
(or an Investment in a Permitted Business); provided that, in the event
that any Replacement Assets replace assets constituting Primary Collateral,
such Replacement Collateral shall constitute Primary Collateral and the Issuer
shall, or shall cause the relevant Subsidiary to, execute such collateral
documents and other instruments and take such other measures as shall be
reasonably necessary to cause such Replacement Assets to become subject to the
Primary Collateral Lien and to perfect such Liens in respect of such assets, in
each case, in the manner and to the extent required under the Security
Documents.


 


“Responsible Officer” means, when used with
respect to the Trustee, any managing director, director, vice president,
assistant vice president, assistant treasurer, assistant secretary, associate
or any other officer within the corporate trust department of the Trustee
customarily performing functions similar to those performed by any of the above
designated officers and also shall mean, with respect to a particular corporate
trust matter, any other officer to whom such matter is referred because of such
officer’s knowledge of and familiarity with the particular subject.


 


“Restricted Payment” has the meaning set
forth in Section 4.3.


 


“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 Security constitutes a
Restricted Security.


 


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


 


24

















 


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


 


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


 


“Sale and Leaseback Transaction” means a
transaction whereby a Person sells or otherwise transfers assets or properties
and then or thereafter leases such assets or properties or any part thereof
or any other assets or properties which such Person intends to use for
substantially the same purpose or purposes as the assets or properties sold or
otherwise transferred.


 


“Second Priority Lien” means the Liens
granted to the Collateral Agent in respect of any and all Secondary Collateral
pursuant to (a) the agreement described in clause (i) of the
definition of Security Agreement and (b) Section 10.2(c) .


 


“Secondary Collateral” means any and all
collateral pledged to the Collateral Agent pursuant to (a) the agreement
described in clause (1) of the definition of Security Agreement and (b) Section 10.2(c) .


 


“Securities” means the Initial Notes, the
Exchange Notes and any other notes issued on or after the Issue Date in
accordance with clause (iii) of the fourth paragraph of Section 2.2
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.


 


“Securities Act” means the Securities Act of
1933, as amended, or any successor statute or statutes thereto.


 


“Security Agreement” means (1) that
certain Security Agreement, dated as of the Issue Date, among the Initial
Subsidiary Guarantors and the Collateral Agent, (2) the Escrow Agreement, (3) that
certain Mortgage Assignment, Assignment of Rents, Security Agreement, Fixture
Filing and Financing Statement, dated as of the Issue Date, by the Issuer to
the Collateral Agent, and (4) all other security agreements, pledges,
collateral assignments or other instruments evidencing or creating any security
interests in favor of the Collateral Agent, for the benefit of the Trustee and
the Holders of the Notes, in all or any portion of the Collateral, in each
case, as amended, restated, modified, supplemented or replaced from time to
time.


 


“Security Documents” means, collectively, (1) the
Security Agreement and (2) the Intercreditor Agreement, in each case, as
amended, amended and restated, supplemented, replaced or otherwise modified
from time to time, in accordance with the terms thereof.


 


“Security Interests” means the Liens on the Collateral created
by the Security Documents in favor of the Collateral Agent for the benefit of
the Trustee and the Holders of the Securities (but otherwise subject to the
terms of the Intercreditor Agreement).


 


“Shared Primary Collateral” means all Primary
Collateral other than the collateral described in clause (2) of the
definition of “Primary Collateral”.


 


“Shelf Registration Statement” has the
meaning set forth in Section 1 of the Registration Rights Agreement.


 


25

















 


“Significant Subsidiary” means, at any date
of determination, any Restricted Subsidiary that, together with its
Subsidiaries, (1) for the most recent fiscal year of the Issuer, accounted
for more than 10% of the consolidated revenues of the Issuer and its Restricted
Subsidiaries or (2) as of the end of such fiscal year, was the owner of
more than 10% of the consolidated assets of the Issuer and its Restricted
Subsidiaries, all as set forth on the most recently available consolidated
financial statements of the Issuer for such fiscal year.


 


“Special Offer to Purchase” has the meaning
set forth in Section 4.24.


 


“Stated Maturity” means (1) with respect
to any debt security, the date specified in such debt security as the fixed
date on which the final installment of principal of such debt security is due
and payable and (2) with respect to any scheduled installment of principal
of or interest on any debt security, the date specified in such debt security
as the fixed date on which such installment is due and payable.


 


“Subsidiary” means, with respect to any
Person, any corporation, association or other business entity of which more
than 50% of the voting power of the outstanding Voting Stock is owned, directly
or indirectly, by such Person and one or more other Subsidiaries of such
Person.


 


“Subsidiary Guarantee” has the meaning set
forth in Section 11.1.


 


“Subsidiary Guarantor” or “Guarantor”
means any Initial Subsidiary Guarantor and any other Restricted Subsidiary of
the Issuer which provides a Note Guarantee of the obligations under this
Indenture and the Securities pursuant to Section 4.15.


 


“Tax Sharing Agreement” means any tax sharing
agreement or arrangement between the Issuer and one or more other Persons, as
the same may be amended from time to time; provided that in no event shall the amount
permitted to be paid pursuant to all such agreements and/or arrangements exceed
the amount the Issuer would be required to pay for income taxes were it to file
a consolidated tax return for itself and its consolidated Restricted
Subsidiaries as if it were a corporation that was a parent of a consolidated
group.


 


“TIA” or “Trust Indenture Act” means
the Trust Indenture Act of 1939 (15 U.S.C. §§ 77aaa-77bbbb), as amended,
as in effect on the date of the execution of this Indenture until such time as
this Indenture is qualified under the TIA, and thereafter the TIA as then in
effect, as amended from time to time.


 


“Temporary Cash Investments” means any of the
following:


 


	
   

  	
  (1)

  	
  direct obligations of the United States of America or any agency
  thereof or obligations fully and unconditionally guaranteed by the United
  States of America or any agency thereof, in each case, maturing within one
  year unless such obligations are deposited by the Issuer (x) to defease any
  Indebtedness or (y) in a collateral or escrow account or similar arrangement
  to prefund the payment of interest on any indebtedness;

  
	
   

  	
   

  	
   

  
	
   

  	
  (2)

  	
  time deposit accounts, certificates of deposit and money market
  deposits maturing within one year of the date of acquisition thereof issued
  by a bank or trust

  



 


26

















 


	
   

  	
   

  	
  company which is organized under the laws of the United States of
  America, any state thereof or any foreign country recognized by the United
  States of America, and which bank or trust company has capital, surplus and
  undivided profits aggregating in excess of $100.0 million (or the foreign
  currency equivalent thereof) and has outstanding debt which is rated “A” (or
  such similar equivalent rating) or higher by at least one nationally
  recognized statistical rating organization (as defined in Rule 436 under
  the Securities Act) or any money market fund sponsored by a registered broker
  dealer or mutual fund distributor;

  
	
   

  	
   

  	
   

  
	
   

  	
  (3)

  	
  repurchase obligations with a term of not more than 30 days for
  underlying securities of the types described in clause (1) above entered
  into with a bank or trust company meeting the qualifications described in
  clause (2) above;

  
	
   

  	
   

  	
   

  
	
   

  	
  (4)

  	
  commercial paper, maturing not more than one year after the date of
  acquisition, issued by a corporation (other than an Affiliate of the Issuer)
  organized and in existence under the laws of the United States of America,
  any state thereof or any foreign country recognized by the United States of
  America with a rating at the time as of which any investment therein is made
  of “P-1” (or higher) according to Moody’s or “A-1” (or higher) according to
  S&P;

  
	
   

  	
   

  	
   

  
	
   

  	
  (5)

  	
  securities with maturities of six months or less from the date of
  acquisition issued or fully and unconditionally guaranteed by any state,
  commonwealth or territory of the United States of America, or by any
  political subdivision or taxing authority thereof, and rated at least “A” by
  S&P or Moody’s;

  
	
   

  	
   

  	
   

  
	
   

  	
  (6)

  	
  any mutual fund that has at least 95% of its assets continuously
  invested in investments of the types described in clauses (1) through (5) above;
  and

  
	
   

  	
   

  	
   

  
	
   

  	
  (7)

  	
  overnight deposits and demand deposit accounts (in the respective
  local currencies) maintained in the ordinary course of business.

  



 


“Temporary Offshore Global Securities” has
the meaning provided in Section 2.1.


 


“Total Assets” means the total consolidated
assets of the Issuer and its Restricted Subsidiaries as shown on the Issuer’s
most recent consolidated balance sheet.


 


“Trade Payables” means, with respect to any
Person, any accounts payable or any other indebtedness or monetary obligation
to trade creditors created, assumed or Guaranteed by such Person or any of its
Subsidiaries arising in the ordinary course of business in connection with the
acquisition of goods or services.


 


“Transaction Date” means, with respect to the
Incurrence of any Indebtedness, the date such Indebtedness is to be Incurred
and, with respect to any Restricted Payment, the date such Restricted Payment
is to be made.


 


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


 


27

















 


“UCC” means the Uniform Commercial Code
as in effect, from time to time, in the State of New York or, where applicable
as to specific Collateral, any other relevant state.


 


“Unrestricted Subsidiary” means (1) any
Subsidiary of the Issuer that at the time of determination shall be designated
an Unrestricted Subsidiary by the Board of Directors in the manner
provided below; and (2) any Subsidiary of an Unrestricted Subsidiary. The
Board of Directors may designate any Restricted Subsidiary (including any
newly acquired or newly formed Subsidiary of Aventine but excluding Aventine
Renewable Energy, Inc. or any other Restricted Subsidiary to which any
property or assets constituting Primary Collateral are transferred) to be an
Unrestricted Subsidiary unless such Subsidiary owns any Capital Stock of, or
owns or holds any Lien on any property of, the Issuer or any Restricted
Subsidiary; provided that (A) any Guarantee by the Issuer or any
Restricted Subsidiary of any Indebtedness of the Subsidiary being so designated
shall be deemed an “Incurrence” of such Indebtedness and an “Investment” by the
Issuer or such Restricted Subsidiary (or both, if applicable) at the time of
such designation; (B) either (I) the Subsidiary to be so designated has
total assets of $1,000 or less or (II) if such Subsidiary has assets greater
than $1,000, such designation would be permitted under Section 4.3 and (C) if
applicable, the Incurrence of Indebtedness and the Investment referred to in
clause (A) of this proviso would be permitted under Sections 4.4 and 4.3,
respectively. The Board of Directors may designate any Unrestricted
Subsidiary to be a Restricted Subsidiary; provided that (a) no
Default or Event of Default shall have occurred and be continuing at the time
of or after giving effect to such designation and (b) all Liens and
Indebtedness of such Unrestricted Subsidiary outstanding immediately after such
designation would, if Incurred at such time, have been permitted to be Incurred
(and shall be deemed to have been Incurred) for all purposes of this Indenture.
Any such designation by the Board of Directors shall be evidenced to the
Trustee by promptly filing with the Trustee a copy of the Board Resolution
giving effect to such designation and an Officers’ Certificate certifying that
such designation complied with the foregoing provisions.


 


“U.S. Global Securities” has the meaning
provided in Section 2.1.


 


“U.S. Government Obligations” means
securities that are (1) direct obligations of the United States of America
for the payment of which its full faith and credit is pledged or (2) obligations
of a Person controlled or supervised by and acting as an agency or
instrumentality of the United States of America the payment of which is
unconditionally guaranteed as a full faith and credit obligation by the United
States of America, which, in either case, are not callable or redeemable at the
option of the Issuer thereof at any time prior to the Stated Maturity of the
Securities, and shall also include a depository receipt issued by a bank or
trust company as custodian with respect to any such U.S. Government Obligation
or a specific payment of interest on or principal of any such U.S. Government
Obligation held by such custodian for the account of the holder of a depository
receipt; provided that (except as required by law) such custodian is not
authorized to make any deduction from the amount payable to the holder of such
depository receipt from any amount received by the custodian in respect of the
U.S. Government Obligation or the specific payment of interest on or principal
of the U.S. Government Obligation evidenced by such depository receipt.


 


“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.


 


28

















 


“U.S. Physical Securities” has the meaning
set forth in Section 2.1.


 


“Voting Stock” means with respect to any
Person, Capital Stock of any class or kind ordinarily having the power to
vote for the election of directors, managers or other voting members of the
governing body of such Person.


 


“Wholly Owned” means, with respect to any
Subsidiary of any Person, the ownership of all of the outstanding Capital Stock
of such Subsidiary (other than any director’s qualifying shares or Investments
by foreign nationals mandated by applicable law) by such Person or one or more
Wholly Owned Subsidiaries of such Person.


 


1.2 Incorporation by Reference of TIA.


 


Whenever this Indenture refers to a provision of the
TIA, such provision is incorporated by reference in, and made a part of,
this Indenture. The following TIA terms used in this Indenture have the
following meanings:


 


“indenture securities” means the Securities.


 


“indenture security holder” means a Holder or
a Securityholder.


 


“indenture to be qualified” means this
Indenture.


 


“indenture trustee” or “institutional trustee”
means the Trustee.


 


“obligor” on this Indenture securities means
the Issuer, any Subsidiary Guarantor or any other obligor on the Securities.


 


All other TIA terms used in this Indenture that are
defined by the TIA, defined by TIA reference to another statute or defined by
Commission rule and not otherwise defined herein have the meanings
assigned to them therein.


 


1.3 Rules of Construction.


 


Unless the context otherwise requires:


 


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


 


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


 


(3) “or” is not exclusive;


 


(4) “including” means including without
limitation;


 


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


 


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


 


29

















 


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


 


(8) all ratios and computations based on GAAP
contained in this Indenture shall be computed in accordance with the definition
of GAAP set forth in Section 1.1.


 


(9) all references to Sections or Articles
refer to Sections or Articles in this Indenture unless otherwise indicated.


 


ARTICLE II


 


THE
SECURITIES


 


2.1 Form and Dating.


 


The Initial Notes and the Trustee’s related
certificate of authentication shall be substantially in the form of Exhibit A
and the Exchange Notes and the Trustee’s certificate of authentication shall be
substantially in the form of Exhibit B. The Securities may have
notations, legends or endorsements required by law, stock exchange rule or
usage. The Issuer and the Trustee shall approve the form of the Securities
and any notation, legend or endorsement on them. Each Security shall be dated
the date of its authentication.


 


The terms and provisions contained in the
Securities, annexed hereto as Exhibits A and B, and the
Subsidiary Guarantees annexed hereto as Exhibit E, shall constitute, and
are hereby expressly made, a part of this Indenture and, to the extent
applicable, the Issuer, the Guarantors, if any, and the Trustee, by their
execution and delivery of this Indenture, expressly agree to such terms and
provisions and to be bound thereby.


 


Securities offered and sold in reliance on Rule 144A
shall be issued initially in the form of one or more permanent global Securities
in registered form, substantially in the form set forth in Exhibit A
(the “U.S. Global Securities”), registered in the name of the nominee of
Depository, deposited with the Trustee, as custodian for the Depository, duly
executed by the Issuer and authenticated by the Trustee as hereinafter
provided, and shall bear the legends set forth in Section 2.14. The
aggregate principal amount of the U.S. Global Securities 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.


 


Securities issued in exchange for interests in the
U.S. Global Securities pursuant to Section 2.15 or 2.16 may be issued
in the form of Physical Securities (“U.S. Physical Securities”) and
shall bear the first legend set forth in Section 2.14.


 


Securities offered and sold in offshore transactions
in reliance on Regulation S shall be issued initially in the form of one
or more temporary global Securities in registered form, substantially in the form set
forth in Exhibit A (the “Temporary Offshore Global Securities”),
registered in the name of the nominee of the Depository, deposited with the
Trustee, as custodian for the Depository, duly executed by the Issuer and
authenticated by the Trustee as hereinafter provided, and shall bear the
legends set forth in Section 2.14. At any time on or after the 41st
day after the Issue Date, upon receipt by the Trustee, Registrar and the Issuer
of a certificate


 


30

















 


substantially in the form of Exhibit D-1
hereto, the owner of a beneficial interest in a Temporary Offshore Global
Security may exchange such interest for an equivalent interest in one or
more permanent global Securities in registered form substantially in the form set
forth in Exhibit A (the “Permanent Offshore Global Securities”; and
together with the Temporary Offshore Global Securities, the “Offshore Global
Securities”), duly executed by the Issuer and authenticated by the Trustee
which shall be deposited with the Trustee, as custodian for the Depository or
its nominee, and the Registrar shall reflect on its books and records the date
and a decrease in the principal amount of the Temporary Offshore Global
Securities in an amount equal to the principal amount of the beneficial
interest in the Temporary Offshore Global Securities exchanged for Permanent
Offshore Global Securities. The aggregate principal amount of the Offshore
Global Securities 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.


 


Securities issued in exchange for interests in the
Permanent Offshore Global Securities pursuant to Section 2.15 may be
issued in the form of permanent Physical Securities in registered form (the
“Offshore Physical Securities”).


 


The Offshore Physical Securities and the U.S.
Physical Securities are sometimes collectively herein referred to as the “Physical
Securities.” The U.S. Global Securities and the Offshore Global Securities
are sometimes referred to herein as the “Global Securities.”


 


2.2 Execution and Authentication.


 


Two Officers, or an Officer and an Assistant
Secretary, of the Issuer shall sign, or one Officer shall sign and one Officer
or an Assistant Secretary of the Issuer (each of whom shall, in each case, have
been duly authorized by all requisite corporate actions) shall attest to, the
Securities for the Issuer by manual or facsimile signature.


 


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


 


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


 


The Trustee shall authenticate (i) Initial
Notes for original issue on the Issue Date in the aggregate principal amount
not to exceed $160.0 million, (ii) Exchange Notes and (iii) subject
to compliance with Sections 4.4 and 10.2(d), one or more series of
Securities for original issue after the Issue Date (such Securities to be substantially
in the form of Exhibit A) in an unlimited amount, in each
case, upon written orders of the Issuer in the form of an Officers’
Certificate, which Officers’ Certificate shall, in the case of any issuance
pursuant to clause (iii) above, certify that such issuance is in
compliance with Section 4.4 and 10.2(d) . In addition, each such
Officers’ Certificate shall specify the amount of Securities to be
authenticated, the date on which the Securities are to be authenticated,
whether the Securities are to be Initial Notes issued under clause (i) of
the preceding sentence, Exchange Notes or Initial Notes issued under clause (iii) of
the preceding sentence and the aggregate principal amount of Securities
outstanding on the date


 


31

















 


of authentication, and shall further specify the
amount of such Securities to be issued as a Global Security or Physical
Securities. Such Securities shall initially be in the form of one or more
Global Securities, which (i) shall represent, and shall be denominated in
an amount equal to the aggregate principal amount of, the Securities to be
issued, (ii) shall be registered in the name of the Depository for such
Global Security or Securities or its nominee and (iii) shall be held by the
Trustee as custodian for the Depository or pursuant to the Depository’s
instruction. All Securities issued under this Indenture shall vote and consent
together on all matters as one class and no series of Securities
shall have the right to vote or consent as a separate class on any matter.


 


The Trustee may appoint an authenticating agent
reasonably acceptable to the Issuer to authenticate the Securities. Unless
otherwise provided in the appointment, an authenticating agent may authenticate
Securities whenever the Trustee may do so. Each reference in this
Indenture to authentication by the Trustee includes authentication by such
agent. An authenticating agent has the same rights as an Agent to deal with the
Issuer and Affiliates of the Issuer.


 


The Securities shall be issuable only in registered form without
coupons in denominations of $1,000 and integral multiples thereof.


 


2.3 Registrar and Paying Agent.


 


The Issuer shall maintain an office or agency in the
Borough of Manhattan, The City of New York, where (a) Securities may be
presented or surrendered for registration of transfer or for exchange (“Registrar”),
(b) Securities may be presented or surrendered for payment (“Paying
Agent”) and (c) notices and demands to or upon the Issuer in respect
of the Securities and this Indenture may be served. The Issuer may also
from time to time designate one or more other offices or agencies where the
Securities may be presented or surrendered for any or all such purposes
and may from time to time rescind such designations; provided,however,
that no such designation or rescission shall in any manner relieve the Issuer
of its obligation to maintain an office or agency in the Borough of Manhattan,
The City of New York, for such purposes. The Issuer may act as its own
Registrar or Paying Agent except that for the purposes of Articles III and VIII
and Sections 4.17, 4.18 and 4.23, neither the Issuer nor any Affiliate of the
Issuer shall act as Paying Agent. The Registrar shall keep a register of the
Securities and of their transfer and exchange. The Issuer, upon notice to the
Trustee, may have one or more co-Registrars and one or more additional
paying agents reasonably acceptable to the Trustee. The term “Paying
Agent” includes any additional paying agent. The
Issuer hereby initially appoints the Trustee as Registrar and Paying Agent
until such time as the Trustee has resigned or a successor has been appointed.


 


The Issuer shall enter into an appropriate agency
agreement with any Agent not a party to this Indenture, which agreement shall
implement the provisions of this Indenture that relate to such Agent. The
Issuer shall notify the Trustee, in advance, of the name and address of any
such Agent. If the Issuer fails to maintain a Registrar or Paying Agent, the
Trustee shall act as such.


 


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2.4 Paying Agent to Hold Assets in Trust.


 


The Issuer shall require each Paying Agent other
than the Trustee to agree in writing that, subject to Article X, each
Paying Agent shall hold in trust for the benefit of Holders or the Trustee all
assets held by the Paying Agent for the payment of principal of, premium, if
any, or interest on, the Securities (whether such assets have been distributed
to it by the Issuer or any other obligor on the Securities), and shall notify
the Trustee of any Default or Event of Default by the Issuer (or any other
obligor on the Securities) in making any such payment. If the Issuer or a
Subsidiary acts as Paying Agent, it shall segregate such assets and hold them as
a separate trust fund. The Issuer at any time may require a Paying Agent
to distribute all assets held by it to the Trustee and account for any assets
disbursed and the Trustee may at any time during the continuance of any
payment Default or payment Event of Default, upon written request to a Paying
Agent, require such Paying Agent to distribute all assets held by it to the
Trustee and to account for any assets distributed. Upon distribution to the
Trustee of all assets that shall have been delivered by the Issuer to the
Paying Agent, the Paying Agent shall have no further liability for such assets.


 


2.5 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. If the Trustee is not the Registrar, the Issuer shall
furnish to the Trustee on or before each Interest Payment Date and at such
other times as the Trustee may request in writing a list in such form and
as of such date as the Trustee may reasonably require of the names and
addresses of Holders, which list may be conclusively relied upon by the
Trustee.


 


2.6 Transfer and Exchange.


 


(a) Subject to the provisions of Sections 2.15
and 2.16, when Securities are presented to the Registrar or a co-Registrar with
a request to register the transfer of such Securities or to exchange such
Securities for an equal principal amount of Securities of other authorized
denominations, the Registrar or co-Registrar shall register the transfer or
make the exchange as requested if its requirements for such transaction are
met; provided, however, that the Securities surrendered for
registration of transfer or exchange shall be duly endorsed or accompanied by a
written instrument of transfer in form satisfactory to the Issuer and the
Registrar or co-Registrar, duly executed by the Holder thereof or his attorney
duly authorized in writing. To permit registrations of transfers and exchanges,
the Issuer shall execute and the Trustee shall authenticate Securities at the
Registrar’s or co-Registrar’s request. No service charge shall be made for any
registration of transfer or exchange, but the Issuer may require payment
of a sum sufficient to cover any transfer tax or similar governmental charge
payable in connection therewith (other than any such transfer taxes or similar
governmental charge payable upon exchanges or transfers pursuant to Section 2.2,
2.10, 3.6, 3.7, 4.17, 4.18, 4.23, 4.24 or 9.6) . The Registrar or co-Registrar
shall not be required to register the transfer of or exchange of any Security (i) during
a period beginning at the opening of business 15 days before the mailing of a
notice of redemption of Securities and ending at the close of business on the
day of such mailing, (ii) selected for redemption in whole or in part pursuant
to Article III, except the unredeemed portion of any Security being
redeemed in part, and (iii) during an Offer to Purchase made


 


33

















 


pursuant to Section 4.17, 4.18, 4.23 or 4.24 if
such Security is tendered pursuant to such Offer to Purchase and not withdrawn.
A Global Security may be transferred, in whole but not in part, in the
manner provided in this Section 2.6(a), only to a nominee of the
Depository for such Global Security, or to the Depository, or a successor
Depository for such Global Security selected or approved by the Issuer, or to a
nominee of such successor Depository.


 


(b) If at any time the Depository for the
Global Security or Securities notifies the Issuer that it is unwilling or
unable to continue as Depository for such Global Security or Securities or the
Issuer become aware that the Depository has ceased to be a clearing agency
registered under the Exchange Act, the Issuer shall appoint a successor
Depository with respect to such Global Security or Securities. If a successor
Depository for such Global Security or Securities has not been appointed within
90 days after the Issuer receives such notice or becomes aware of such
ineligibility, the Issuer shall execute, and the Trustee, upon receipt of an
Officers’ Certificate for the authentication and delivery of Physical
Securities, shall authenticate and deliver, Physical Securities, in an
aggregate principal amount at maturity equal to the principal amount at
maturity of the Global Security representing such Securities, in exchange for
such Global Security. The Issuer shall reimburse the Registrar, the Depository
and the Trustee for expenses they incur in documenting such exchanges and
issuances of Securities.


 


The Issuer may at any time and in their sole
discretion determine that the Securities shall no longer be represented by such
Global Security or Securities. In such event the Issuer shall execute, and the
Trustee, upon receipt of a written order for the authentication and delivery of
Physical Securities in exchange in whole or in part for such Global
Security or Securities accompanied by an Officers’ Certificate, shall
authenticate and deliver Physical Securities in an aggregate principal amount
equal to the principal amount of such Global Security or Securities in exchange
for such Global Security or Securities.


 


In any exchange provided for in any of the preceding
two paragraphs, the Issuer shall execute and the Trustee shall authenticate and
deliver Physical Securities in authorized denominations. Upon the exchange of a
Global Security for Physical Securities, such Global Security shall be
cancelled by the Trustee. Physical Securities issued in exchange for a Global
Security pursuant to this Section 2.6(b) shall be registered in such
names and in such authorized denominations as the Depository for such Global
Security, pursuant to instructions from its direct or indirect participants or
otherwise, shall instruct the Trustee. The Trustee shall deliver such
Securities to the Persons in whose names such Securities are so registered.


 


None of the Issuer, the Trustee, any Paying Agent or
the Registrar shall have any responsibility or liability for any aspect of the
records relating to or payments made on account of beneficial ownership
interests in a Global Security or for maintaining, supervising or reviewing any
records relating to such beneficial ownership interests.


 


2.7 Replacement Securities.


 


If a mutilated Security is surrendered to the
Trustee or if the Holder of a Security claims that the Security has been lost,
destroyed or wrongfully taken, the Issuer shall issue and the Trustee shall
authenticate a replacement Security if the Trustee’s requirements are met. If
required by the Trustee or the Issuer, such Holder must provide an indemnity
bond or other


 


34

















 


indemnity, sufficient in the judgment of both the
Issuer and the Trustee, to protect the Issuer, the Trustee or any Agent from
any loss which any of them may suffer if a Security is replaced. The
Issuer may charge such Holder for its reasonable out-of-pocket expenses in
replacing a Security pursuant to this Section 2.7, including reasonable
fees and expenses of counsel.


 


Every replacement Security is an additional obligation
of the Issuer.


 


2.8 Outstanding Securities.


 


Securities outstanding at any time are all the
Securities that have been authenticated by the Trustee except those cancelled
by it, those delivered to it for cancellation and those described in this Section as
not outstanding. A Security does not cease to be outstanding because either of
the Issuer, any Guarantor or any of their respective Subsidiaries or Affiliates
holds the Security.


 


If a Security is replaced pursuant to Section 2.7
(other than a mutilated Security surrendered for replacement), it ceases to be
outstanding unless the Trustee receives proof satisfactory to it that the
replaced Security is held by a bona fide purchaser or a protected
purchaser. A mutilated Security ceases to be outstanding upon surrender of such
Security and replacement thereof pursuant to Section 2.7. If the principal
amount of any Security is considered paid under Section 4.1, it ceases to
be outstanding and interest ceases to accrue.


 


If on a Redemption Date or the Maturity Date the
Paying Agent (other than either of the Issuer or a Subsidiary) holds U.S. Legal
Tender sufficient to pay all of the principal, premium, if any, and interest
due on the Securities payable on that date, then on and after that date such
Securities cease to be outstanding and interest on them ceases to accrue.


 


2.9 Treasury Securities.


 


In determining whether the Holders of the required
principal amount of Securities have concurred in any direction, waiver or
consent, Securities owned by the Issuer, any of its Subsidiaries or any of
their respective Affiliates shall be disregarded, except that, for the purposes
of determining whether the Trustee shall be protected in relying on any such
direction, waiver or consent, only Securities that a Responsible Officer of the
Trustee has Actual Knowledge are so owned shall be disregarded.


 


2.10 Temporary Securities.


 


Until definitive Securities are ready for delivery,
the Issuer may prepare and the Trustee shall authenticate temporary
Securities. Temporary Securities shall be substantially in the form of
definitive Securities but may have variations that the Issuer considers
appropriate for temporary Securities, as evidenced by execution of such
temporary Securities by the Issuer. Without unreasonable delay, the Issuer
shall prepare and the Trustee shall authenticate definitive Securities in
exchange for temporary Securities. Until such exchange, temporary Securities
shall be entitled to the same rights, benefits and privileges as definitive
Securities. Notwithstanding the foregoing, so long as the Securities are
represented by a Global Security, such Global Security may be in
typewritten form.


 


35






 










 


2.11 Cancellation.


 


The Issuer at any time may deliver Securities
to the Trustee for cancellation. The Registrar and the Paying Agent shall
forward to the Trustee any Securities surrendered to them for registration of
transfer, exchange or payment. The Trustee, or at the direction of the Trustee,
the Registrar or the Paying Agent (other than either of the Issuer or a
Subsidiary), and no one else, shall cancel and shall dispose of all Securities
surrendered for registration of transfer, exchange, payment or cancellation.
Subject to Section 2.7, the Issuer may not issue new Securities to
replace Securities that they have paid or delivered to the Trustee for
cancellation. If the Issuer or any Guarantor shall acquire any of the
Securities, such acquisition shall not operate as a redemption or satisfaction
of the Indebtedness represented by such Securities unless and until the same
are surrendered to the Trustee for cancellation pursuant to this Section 2.11.


 


2.12 Defaulted Interest.


 


If the Issuer defaults in a payment of interest on
the Securities, it shall, unless the Trustee fixes another record date pursuant
to Section 6.10, pay the defaulted interest, plus (to the extent lawful)
any interest payable on the defaulted interest, in any lawful manner. The Issuer
may pay the defaulted interest to the Persons who are Holders on a
subsequent special record date, which date shall be the fifteenth day next
preceding the date fixed by the Issuer for the payment of defaulted interest or
the next succeeding Business Day if such date is not a Business Day. At least
15 days before any such subsequent special record date, the Issuer shall mail
to each Holder, with a copy to the Trustee, a notice that states the subsequent
special record date, the payment date and the amount of defaulted interest, and
interest payable on such defaulted interest, if any, to be paid.


 


2.13 CUSIP and ISIN Numbers.


 


The Issuer in issuing the Securities may use “CUSIP”
and “ISIN” numbers, and if so, the Trustee shall use the CUSIP numbers
in notices of redemption 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 the CUSIP and ISIN numbers printed in
the notice or on the Securities, and that reliance may be placed only on
the other identification numbers printed on the Securities and that any such
redemption or exchange shall not be affected by any defect or omission of such
CUSIP and ISIN numbers. The Issuer shall promptly notify the Trustee of any
change in CUSIP or ISIN number.


 


2.14 Restrictive Legends.


 


Unless and until a Security is exchanged for an
Exchange Note or sold in connection with an effective registration statement
under the Securities Act pursuant to the Registration Rights Agreement, the
U.S. Global Securities, U.S. Physical Securities and Temporary Offshore Global
Securities shall bear the following legend set forth below (the “Private
Placement Legend”) on the face thereof:


 


THIS SECURITY HAS NOT BEEN REGISTERED UNDER THE U.S.
SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), AND ACCORDINGLY, MAY NOT
BE OFFERED OR SOLD WITHIN THE


 


36

















 


UNITED STATES OR TO, OR FOR THE ACCOUNT OR BENEFIT
OF, U.S. PERSONS EXCEPT AS SET FORTH IN THE FOLLOWING SENTENCE. BY ITS
ACQUISITION HEREOF, THE HOLDER (1) REPRESENTS THAT (A) IT IS A “QUALIFIED
INSTITUTIONAL BUYER” (AS DEFINED IN RULE 144A UNDER THE SECURITIES ACT) OR
(B) IT IS NOT A U.S. PERSON AND IS ACQUIRING THIS SECURITY IN AN OFFSHORE
TRANSACTION IN COMPLIANCE WITH REGULATION S UNDER THE SECURITIES ACT, OR (C) IT
IS AN INSTITUTIONAL “ACCREDITED INVESTOR” (AS DEFINED IN RULE 501(a)(1),
(2), (3) OR (7) OF REGULATION D UNDER THE SECURITIES ACT) (AN “INSTITUTIONAL
ACCREDITED INVESTOR”), (2) AGREES THAT IT WILL NOT, WITHIN THE TIME PERIOD
REFERRED TO IN RULE 144(k) UNDER THE SECURITIES ACT AFTER THE ORIGINAL
ISSUANCE OF THESE SECURITIES, RESELL OR OTHERWISE TRANSFER THIS SECURITY EXCEPT
(A) TO THE ISSUER OR ANY SUBSIDIARY THEREOF, (B) TO A QUALIFIED
INSTITUTIONAL BUYER IN COMPLIANCE WITH RULE 144A UNDER THE SECURITIES ACT,
(C) OUTSIDE THE UNITED STATES IN AN OFFSHORE TRANSACTION IN COMPLIANCE
WITH RULE 904 UNDER THE SECURITIES ACT, (D) PURSUANT TO THE EXEMPTION
FROM REGISTRATION PROVIDED BY RULE 144 UNDER THE SECURITIES ACT (IF
AVAILABLE), (E) INSIDE THE UNITED STATES TO AN INSTITUTIONAL ACCREDITED
INVESTOR THAT, PRIOR TO SUCH TRANSFER, FURNISHES TO THE TRUSTEE A SIGNED LETTER
CONTAINING CERTAIN REPRESENTATIONS AND AGREEMENTS RELATING TO THE RESTRICTIONS
ON TRANSFER OF THIS SECURITY (THE FORM OF WHICH LETTER CAN BE OBTAINED
FROM THE TRUSTEE) AND IF SUCH TRANSFER IS IN RESPECT OF AN AGGREGATE PRINCIPAL
AMOUNT OF SECURITIES OF LESS THAN $100,000 AN OPINION OF COUNSEL ACCEPTABLE TO
AVENTINE RENEWABLE ENERGY HOLDINGS, INC. THAT SUCH TRANSFER IS IN
COMPLIANCE WITH THE SECURITIES ACT, (F) IN ACCORDANCE WITH ANOTHER
EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT (AND BASED
UPON AN OPINION OF COUNSEL ACCEPTABLE TO AVENTINE) OR (G) PURSUANT TO AN EFFECTIVE
REGISTRATION STATEMENT UNDER THE SECURITIES ACT AND (3) AGREES THAT IT
WILL DELIVER TO EACH PERSON TO WHOM THIS SECURITY IS TRANSFERRED A NOTICE
SUBSTANTIALLY TO THE EFFECT OF THIS LEGEND. IN CONNECTION WITH ANY TRANSFER OF
THIS SECURITY WITHIN THE TIME PERIOD REFERRED TO IN RULE 144(k) UNDER THE
SECURITIES ACT AFTER THE ORIGINAL ISSUANCE OF THESE SECURITIES, THE HOLDER MUST
CHECK THE APPROPRIATE BOX SET FORTH ON THE REVERSE HEREOF RELATING TO THE
MANNER OF SUCH TRANSFER AND SUBMIT THIS CERTIFICATE TO THE TRUSTEE AND THE
ISSUER. SUCH CERTIFICATIONS, LEGAL OPINIONS OR OTHER INFORMATION AS EITHER OF
THEM MAY REASONABLY REQUIRE TO CONFIRM THAT SUCH TRANSFER IS BEING MADE
PURSUANT TO AN


 


37

















 


EXEMPTION FROM, OR IN A TRANSACTION NOT SUBJECT TO,
THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT. AS USED HEREIN, THE TERMS “OFFSHORE
TRANSACTION,” “UNITED STATES” AND “U.S. PERSON” HAVE THE MEANINGS GIVEN TO THEM
BY REGULATION S UNDER THE SECURITIES ACT. THE INDENTURE CONTAINS A PROVISION
REQUIRING THE TRUSTEE TO REFUSE TO REGISTER ANY TRANSFER OF THIS SECURITY IN
VIOLATION OF THE FOREGOING RESTRICTIONS.


 


The Temporary Offshore Global Securities shall bear
the following legend set forth on the face thereof:


 


THIS SECURITY IS A TEMPORARY GLOBAL SECURITY. PRIOR
TO THE EXPIRATION OF THE RESTRICTED PERIOD APPLICABLE HERETO, BENEFICIAL
INTERESTS HEREIN MAY NOT BE HELD BY ANY PERSON OTHER THAN (1) A
NON-U.S. PERSON OR (2) A U.S. PERSON THAT PURCHASED SUCH INTEREST IN A
TRANSACTION EXEMPT FROM REGISTRATION UNDER THE U.S. SECURITIES ACT OF 1933, AS
AMENDED (THE “SECURITIES ACT”). BENEFICIAL INTERESTS HEREIN ARE NOT
EXCHANGEABLE FOR PHYSICAL SECURITIES OTHER THAN IN ACCORDANCE WITH THE TERMS OF
THE INDENTURE. TERMS IN THIS LEGEND ARE USED AS USED IN REGULATION S UNDER THE
SECURITIES ACT.


 


Each Global Security 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 ISSUER OR THEIR 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.


 


38

















 


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 SECTION 2.16 OF THE INDENTURE GOVERNING THIS
SECURITY.


 


2.15 Book-Entry Provisions for
Global Security.


 


(a) Each Global Security initially shall (i) be
registered in the name of the Depository or the nominee of such Depository, (ii) be
delivered to the Trustee as custodian for such Depository and (iii) bear
legends as set forth in Section 2.14.


 


Members of, or participants in, the Depository (“Agent
Members”) shall have no rights under this Indenture with respect to any
Global Security held on their behalf by the Depository, or the Trustee as its
custodian, or under any Global Security, and the Depository may be treated
by the Issuer, the Trustee and any agent of the Issuer or the Trustee as the
absolute owner of each Global Security for all purposes whatsoever.
Notwithstanding the foregoing, nothing herein shall prevent the Issuer, the
Trustee or any agent of the Issuer 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
Security.


 


(b) Transfers of Global Securities 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 any
Global Security may be transferred or, subject to Section 2.1,
exchanged for Physical Securities in accordance with the rules and
procedures of the Depository and the provisions of Section 2.16. In
addition, U.S. Physical Securities and Offshore Physical Securities shall be
transferred to all beneficial owners in exchange for their beneficial interests
in U.S. Global Securities or Offshore Global Securities, as the case may be,
(i) in accordance with Section 2.6 or (ii) if an Event of
Default has occurred and is continuing and the Registrar has received a written
request from the Depository or the Trustee to issue Physical Securities.


 


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


 


(d) In connection with the transfer of U.S.
Global Securities or Offshore Global Securities, in whole, to beneficial owners
pursuant to paragraph (b), the U.S. Global Securities or the Offshore Global
Securities, as the case may be, shall be deemed to be surrendered to the
Trustee for cancellation, and the Issuer shall execute, and the Trustee shall
authenticate and deliver, to each beneficial owner identified by the Depository
in exchange for its beneficial


 


39

















 


interest in such U.S. Global Securities or Offshore
Global Securities, as the case may be, an equal aggregate principal amount
of U.S. Physical Securities or Offshore Physical Securities, as the case may be,
of authorized denominations.


 


(e) Any Physical Security constituting a
Restricted Security delivered in exchange for an interest in a Global Security
pursuant to paragraph (b) or (c) shall bear the legend regarding
transfer restrictions applicable to the Physical Securities set forth in Section 2.14.


 


(f) The Holder of a Global Security 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 Securities.


 


2.16 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 Security constituting a
Restricted Security to any institutional accredited investor (as defined in Rule 501(a)(1),
(2), (3) or (7) under the Securities Act) (an “Accredited Investor”
or an “ Institutional  Accredited Investor”) which is not a QIB
(excluding Non-U.S. Persons):


 


(i) the Registrar shall
register the transfer of any Security constituting a Restricted Security,
whether or not such Security bears the Private Placement Legend, if the
proposed transferee has delivered to the Registrar a certificate substantially
in the form of Exhibit C hereto, and if such transfer is in
respect of an aggregate principal amount of Securities of less than $100,000,
the proposed transferee has delivered to the Registrar and the Issuer an
opinion of counsel acceptable to the Issuer that such transfer is in compliance
with the Securities Act and such other certifications, legal opinions or other
information that the Trustee may reasonably request in order to confirm
that such transaction is being made pursuant to an exemption from or in a
transaction not subject to the registration requirements of the Securities Act;
and


 


(ii) if the proposed
transferor is an Agent Member holding a beneficial interest in a U.S. Global
Security, the Registrar shall register the transfer of any Security
constituting a Restricted Security, whether or not such Security bears a
Private Placement Legend, upon receipt by the Registrar of (x) the certificate
and opinion, if any, required by paragraph (i) above and (y) instructions
given in accordance with the Depository’s and the Registrar’s procedures,
whereupon (a) the Registrar shall reflect on its books and records the
date and a decrease in the principal amount of the applicable U.S. Global
Security in an amount equal to the principal amount of the beneficial interest
in such U.S. Global Security to be transferred, and an increase in the
applicable Global Security to which the beneficial interest is to be
transferred or shall authenticate and deliver one or more U.S. Physical
Securities of like tenor and amount.


 


(b) Transfers to QIBs. The following
provisions shall apply with respect to the registration of any proposed
transfer of a Security to a QIB (excluding transfers to Non-U.S. Persons, which
shall be governed by clause (e)):


 


40

















 


(i) if the Security to
be transferred consists of (x) either Offshore Physical Securities prior to the
removal of the Private Placement Legend or U.S. Physical Securities, 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
Security stating, or has otherwise advised the Issuer 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
Security stating, or has otherwise advised the Issuer and the Registrar in
writing that it is purchasing the Security for its own account or an account
with respect to which it exercises sole investment discretion and that it and
any such account is a 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 Issuer 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 or (y) an interest in the U.S. Global Securities,
the transfer of such interest may be effected only through the book entry
system maintained by the Depositary; and


 


(ii) if the proposed
transferee is an Agent Member, and the Securities to be transferred consist of
U.S. Physical Securities which after transfer are to be evidenced by an
interest in a U.S. Global Security, 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 applicable U.S. Global Security in
an amount equal to the principal amount of the U.S. Physical Securities to be
transferred, and the Trustee shall cancel the U.S. Physical Securities so
transferred.


 


(c) Transfers of Interests in the
Temporary Offshore Global Securities. The following provisions shall apply
with respect to registration of any proposed transfer of an interest in a
Temporary Offshore Global Securities:


 


(i) the Registrar shall
register the transfer of any Temporary Offshore Global Security if the proposed
transferee is a QIB and the proposed transferor has checked the box provided
for on the form of Security stating, or has otherwise advised the Issuer
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 Security stating, or has
otherwise advised the Issuer and the Registrar in writing that it is purchasing
the Security for its own account or an account with respect to which it
exercises sole investment discretion and that it and any such account is a 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 Issuer 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, upon receipt by the Registrar of the documents
referred to in clause (i)(y) above and instructions given in


 


41

















 


accordance
with the Depositary’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 U.S. Global Securities in an amount equal to the principal amount
of the Temporary Offshore Global Securities to be transferred, and the Trustee
shall decrease the amount of the Temporary Offshore Global Securities.


 


(d) Transfers of Interests in the Permanent
Offshore Global Securities or Offshore  Physical Securities. The
following provisions shall apply with respect to any transfer of interests in
Permanent Offshore Global Securities or Offshore Physical Securities. The
Registrar shall register the transfer of any such Security without requiring
any additional certification.


 


(e) Transfers to Non-U.S. Persons at Any
Time. The following provisions shall apply with respect to any transfer of
a Security to a Non-U.S. Person:


 


(i) prior
to the 41st day after the date on which such Security is originally issued, the
Registrar shall register any proposed transfer of a Security to a Non-U.S.
Person upon receipt of a certificate substantially in the form of Exhibit D
hereto from the proposed transferor.


 


(ii) on and after the
41st day after the date on which such Security is originally issued, the
Registrar shall register any proposed transfer to any Non-U.S. Person if the
Security to be transferred is a U.S. Physical Security or an interest in U.S.
Global Securities, upon receipt of a certificate substantially in the form of
Exhibit D hereto from the proposed transferor; and on or after the 41st
day after the date on which such Security is originally issued, the Registrar
shall register any proposed transfer of any Offshore Physical Security or
Permanent Offshore Global Security without requiring any certification.


 


(iii) (a) if the
proposed transferor is an Agent Member holding a beneficial interest in the
U.S. Global Securities, upon receipt by the Registrar of (x) the documents, if
any, required by paragraph (i) or (ii) and (y) instructions in
accordance with the Depositary’s and the Registrar’s procedures, the Registrar
shall reflect on its books and records the date and a decrease in the principal
amount of the U.S. Global Securities in an amount equal to the principal amount
of the beneficial interest in the U.S. Global Securities to be transferred, and
(b) if the proposed transferee is an Agent Member, 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 Offshore Global
Securities in an amount equal to the principal amount of the U.S. Physical
Securities or the U.S. Global Securities, as the case may be, to be
transferred, and the Trustee shall cancel the U.S. Physical Security, if any,
so transferred or decrease the amount of the U.S. Global Security.


 


(f) Private Placement Legend. Upon the
registration of transfer, exchange or replacement of Securities not bearing the
Private Placement Legend, the Registrar shall deliver Securities that do not
bear the Private Placement Legend. Upon the registration of transfer, exchange
or replacement of Securities bearing the Private Placement Legend, the
Registrar shall deliver only Securities that bear the Private Placement Legend
unless (i) the transferee certifies


 


42

















 


that it is not an Affiliate of the Issuer and the
requested transfer is after the second anniversary of the later of (a) the
date on which such Securities are originally issued and (b) the last date
on which the Issuer or an Affiliate of the Issuer was the owner of such
Securities (or any predecessor Securities) or such shorter period of time as
permitted by Rule 144(k) under the Securities Act or any successor
provision thereunder or (ii) the circumstance contemplated by paragraph (d) or
(e)(ii) of this Section 2.16 exists or (iii) there is delivered
to the Registrar an Opinion of Counsel reasonably satisfactory to the Issuer
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.


 


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


 


The Registrar shall retain copies of all letters,
notices and other written communications received pursuant to Section 2.15
or this Section 2.16 in accordance with its customary procedures. The
Issuer shall have the right to inspect and make copies of all such letters,
notices or other written communications at any reasonable time upon the giving
of reasonable written notice to the Registrar.


 


ARTICLE III


 


REDEMPTION;
OFFER TO PURCHASE


 


3.1 Notices to Trustee.


 


If the Issuer elects to redeem Securities pursuant
to Paragraph 5 or 6 of the Securities, it shall notify the Trustee in writing
of the Redemption Date, the Redemption Price and the principal amount of the
applicable Securities to be redeemed. The Issuer shall give such notice of
redemption to the Paying Agent and Trustee at least 30 days but not more than
60 days before the Redemption Date (unless a shorter notice shall be agreed to
by the Trustee in writing), together with an Officers’ Certificate stating that
such redemption shall comply with the conditions contained herein and provide
the information specified in Section 3.3.


 


3.2 Selection of Securities to
Be Redeemed.


 


In the event that less than all of the Securities
are to be redeemed at any time, selection of such Securities for redemption
shall be made by the Trustee in compliance with the requirements of the
principal national securities exchange, if any, on which such Securities are
listed or, if such Securities are not then listed on a national securities
exchange, by lot or by such method as the Trustee shall deem fair and
appropriate; provided, however, that no Securities of a principal
amount of $1,000 or less shall be redeemed in part; and provided  further that, if a partial redemption is made, selection of the Securities or
portions thereof for redemption shall be made by the Trustee only by lot or by
such method as the Trustee shall deem fair and appropriate (subject to the
procedures of the Depository).


 


43

















 


3.3 Notice of Redemption.


 


At least 30 days but not more than 60 days before a
Redemption Date, the Issuer shall mail a notice of redemption by first class mail,
postage prepaid, to each Holder whose Securities are to be redeemed at its
registered address. At the Issuer’s request at least 30 days before a
Redemption Date (unless a shorter period shall be acceptable to the Trustee),
the Trustee shall give the notice of redemption in the Issuer’s name and at the
Issuer’s expense. Each notice of redemption shall identify the Securities to be
redeemed and shall state:


 


(a) the
Redemption Date;


 


(b)   the Redemption Price and the amount of
accrued interest, if any, to be paid;


 


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


 


(d) that Securities
called for redemption must be surrendered to the Paying Agent to collect the
Redemption Price plus accrued interest, if any;


 


(e) that, unless the
Issuer defaults in making the redemption payment, interest on Securities called
for redemption ceases to accrue on and after the Redemption Date, and the only
remaining right of the Holders of such Securities is to receive payment of the
Redemption Price and accrued interest, if any, upon surrender to the Paying
Agent of the Securities redeemed;


 


(f) if any Security is
being redeemed in part, the portion of the principal amount of such Security to
be redeemed and that, after the Redemption Date, and upon surrender of such
Security, a new Security or Securities in aggregate principal amount equal to
the unredeemed portion thereof shall be issued;


 


(g) if fewer than all
the Securities are to be redeemed, the identification of the particular
Securities (or portion thereof) to be redeemed, as well as the aggregate
principal amount of Securities to be redeemed and the aggregate principal
amount of Securities to be outstanding after such partial redemption;


 


(h) the paragraph of
the Securities pursuant to which the Securities are to be redeemed; and


 


(i) the CUSIP or ISIN
number, if any, printed on the Securities being redeemed and a statement that
no representation is made as to the correctness or accuracy of the CUSIP or
ISIN number, if any, listed in such notice or printed on the Securities.


 


The notice, if mailed in a manner herein
provided, shall be conclusively presumed to have been given, whether or not the
Holder receives such notice. In any case, failure to give such notice by mail
or any defect in the notice to the Holder of any Security designated for
redemption in whole or in part shall not affect the validity of the
proceedings for the redemption of any other Security.


 


44

















 


3.4 Effect of Notice of Redemption.


 


Once notice of redemption is mailed in
accordance with Section 3.3, Securities called for redemption become due
and payable on the Redemption Date and at the Redemption Price plus accrued
interest, if any. Upon surrender to the Trustee or Paying Agent, such Securities
called for redemption shall be paid at the Redemption Price (which shall
include accrued interest thereon to the Redemption Date), but installments of
interest, the maturity of which is on or prior to the Redemption Date, shall be
payable to Holders of record at the close of business on the relevant Record
Dates.


 


3.5 Deposit of Redemption Price.


 


On or before 11:00 a.m. New York time on the
Redemption Date, the Issuer shall deposit with the Paying Agent U.S. Legal
Tender in immediately available funds sufficient to pay the Redemption Price
plus accrued interest, if any, of all Securities to be redeemed on that date.


 


If the Issuer complies with the preceding paragraph,
then, unless the Issuer defaults in the payment of such Redemption Price plus
accrued interest, if any, interest on the Securities to be redeemed shall cease
to accrue on and after the applicable Redemption Date, whether or not such
Securities are presented for payment.


 


3.6 Securities Redeemed in Part.


 


Upon surrender of a Security that is to be redeemed
in part only, the Trustee shall upon written instruction from the Issuer
authenticate for the Holder a new Security or Securities in a principal amount
equal to the unredeemed portion of the Security surrendered.


 


3.7 Offer to Purchase.


 


In the event that, pursuant to Section 4.17,
4.18, 4.23 or 4.24, the Issuer shall be required to commence an offer to
purchase Securities from the Holders in accordance with the procedures
specified in the following provisions of this Section 3.7 (an “Offer to
Purchase”). The Issuer shall commence an Offer to Purchase by mailing a
notice to the Trustee, each Holder and, in the event of a Special Offer to
Purchase, the Escrow Agent stating: 


 


	
   

  	
  (1)

  	
  the provision of this Indenture pursuant to which the offer is being
  made and that all Securities validly tendered shall be accepted for payment
  on a pro rata basis;

  
	
   

  	
   

  	
   

  
	
   

  	
  (2)

  	
  the purchase price and the date of purchase, which shall be a
  Business Day no earlier than 30 days nor later than 60 days from the date
  such notice is mailed (except in the case of a Special Offer to Purchase or
  an Event of Loss Offer to Purchase, in either which case the date of purchase
  shall be a Business Day no later than five Business Days from such mailing
  date) (the “Payment Date”);

  
	
   

  	
   

  	
   

  
	
   

  	
  (3)

  	
  that any Security not tendered shall continue to accrue interest
  pursuant to its terms;

  



 


45

















 


	
   

  	
  (4)

  	
  that, unless the Issuer defaults in the payment of the purchase
  price, any Security accepted for payment pursuant to the Offer to Purchase
  shall cease to accrue interest on and after the Payment Date;

  
	
   

  	
   

  	
   

  
	
   

  	
  (5)

  	
  that Holders electing to have a Security purchased pursuant to the
  Offer to Purchase shall be required to surrender the Security, together with
  the form entitled “Option of the Holder to Elect Purchase” on the
  reverse side of the Security completed, to the Paying Agent at the address
  specified in the notice prior to the close of business on the Business Day
  immediately preceding the Payment Date;

  
	
   

  	
   

  	
   

  
	
   

  	
  (6)

  	
  that Holders shall be entitled to withdraw their election if the
  Paying Agent receives, not later than the close of business on the third
  Business Day immediately preceding the Payment Date, a telegram, facsimile
  transmission or letter setting forth the name of such Holder, the principal
  amount of Securities delivered for purchase and a statement that such Holder
  is withdrawing his election to have such Securities purchased; and

  
	
   

  	
   

  	
   

  
	
   

  	
  (7)

  	
  that Holders whose Securities are being purchased only in part shall
  be issued new Securities equal in principal amount to the unpurchased portion
  of the Securities surrendered; provided that each Security purchased
  and each new Security issued shall be in a principal amount of $1,000 or
  integral multiples of $1,000.

  



 


On the Payment Date, the Issuer shall (a) accept
for payment on a pro rata basis Securities or portions thereof tendered
pursuant to an Offer to Purchase; (b) deposit, or cause to be deposited,
with the Paying Agent money sufficient to pay the purchase price of all
Securities or portions thereof so accepted; and (c) deliver, or cause to
be delivered, to the Trustee all Securities or portions thereof so accepted
together with an Officers’ Certificate specifying the Securities or portions
thereof accepted for payment by the Issuer. The Paying Agent shall promptly
mail to the Holders of Securities so accepted payment in an amount equal to the
purchase price, and the Trustee shall promptly authenticate and mail to such
Holders a new Security equal in principal amount to any unpurchased portion of
the Security surrendered; provided that each Security purchased and each
new Security issued shall be in a principal amount of $1,000 or integral
multiples of $1,000. The Issuer shall publicly announce the results of an Offer
to Purchase as soon as practicable after the Payment Date. The Trustee shall
act as the Paying Agent for an Offer to Purchase. The Issuer shall comply with Rule 14e-1
under the Exchange Act and any other securities laws and regulations
thereunder, to the extent such laws and regulations are applicable, in the
event that the Issuer is required to repurchase Securities pursuant to an Offer
to Purchase. To the extent that the provisions of any securities laws or
regulations conflict with the provisions of this Indenture relating to an Offer
to Purchase, the Issuer shall comply with the applicable securities laws and
regulations and shall not be deemed to have breached its obligations under such
provisions of this Indenture by virtue of such conflict.


 


46

















 


ARTICLE IV


 


COVENANTS


 


4.1 Payment of Securities.


 


The Issuer shall pay the principal of, premium, if
any, and interest on the Securities in the manner provided in the Securities.
An installment of principal of, premium, if any, or interest on the Securities
shall be considered paid on the date it is due if the Trustee or Paying Agent
holds on that date U.S. Legal Tender in immediately available funds designated
for and sufficient to pay the installment. If the Issuer or any Subsidiary acts
as Paying Agent, an installment of principal, premium, if any, or interest
shall be considered paid on the date it is due if the entity acting as Paying
Agent complies with the second sentence of Section 2.4. Upon any bankruptcy
or reorganization procedure relative to the Issuer, the Trustee shall serve as
Paying Agent, if any, for the Securities.


 


4.2 Maintenance of Office or Agency.


 


The Issuer shall maintain in the Borough of
Manhattan, The City of New York, the office or agency required under Section 2.3.
The Issuer shall give prompt written notice to the Trustee of the location, and
any change in the location, of such office or agency. If at any time the Issuer
shall fail to maintain any such required office or agency or shall fail to
furnish the Trustee with the address thereof, such presentations, surrenders,
notices and demands may be made or served at the address of the Trustee
set forth in Section 13.2.


 


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


 


The Issuer hereby initially designate the Trustee at
its Corporate Trust Office, as such office of the Issuer in accordance with Section 2.3.


 


4.3 Limitation on Restricted Payments.


 


The Issuer shall not, and shall not permit any
Restricted Subsidiary to, directly or indirectly, (1) declare or pay any
dividend or make any distribution on or with respect to its Capital Stock
(other than (x) dividends or distributions payable solely in shares of its
Capital Stock (other than Disqualified Stock) or in options, warrants or other
rights to acquire shares of such Capital Stock and (y) pro rata dividends or
distributions on common stock of Restricted Subsidiaries held by minority
stockholders) held by Persons other than the Issuer or any of its Restricted
Subsidiaries, (2) purchase, call for redemption or redeem, retire or
otherwise acquire for value any shares of Capital Stock of (A) the Issuer
(including options, warrants or other rights to acquire such shares of Capital
Stock) held by any Person or (B) a Restricted Subsidiary (including
options, warrants or other rights to acquire such shares of Capital Stock) held
by any Affiliate of the Issuer (other than a Wholly Owned Restricted
Subsidiary) or any holder (or any Affiliate of such holder) of 10% or more of
the Capital Stock of the Issuer, (3) make any


 


47

















 


voluntary or optional principal payment, or voluntary or optional
redemption, repurchase, defeasance, or other acquisition or retirement for
value, of Indebtedness of the Issuer that is subordinated in right of payment
to the Securities or any Indebtedness of a Subsidiary Guarantor that is
subordinated in right of payment to a Note Guarantee or (4) make any
Investment, other than a Permitted Investment, in any Person (such payments or
any other actions described in clauses (1) through (4) above being
collectively “Restricted Payments”) if, at the time of, and after giving
effect to, the proposed Restricted Payment:


 


(a) a Default or an Event of Default shall have occurred and be
continuing; or


 


(b) the Issuer is not able to incur at least $1.00 of additional
Indebtedness pursuant to the Fixed Charge Coverage Ratio test set forth in the
first paragraph of part (a) of Section 4.4; or


 


(c) the aggregate amount of all Restricted Payments made after the
Issue Date shall exceed the sum of:


 


(i) 50% of the aggregate amount of the Adjusted Consolidated Net
Income (or, if the Adjusted Consolidated Net Income is a loss, minus 100% of
the amount of such loss) accrued on a cumulative basis during the period (taken
as one accounting period) beginning on the first day of the fiscal quarter
during which the Issue Date occurs and ending on the last day of the last fiscal
quarter preceding the Transaction Date for which reports have been filed with
the Commission or provided to the Trustee plus


 


(ii) the aggregate Qualified Proceeds received by the Issuer after
the Issue Date as a capital contribution or from the issuance and sale of its
Capital Stock (other than Disqualified Stock) to a Person which is not a
Subsidiary of the Issuer, including an issuance or sale permitted by this
Indenture of Indebtedness of the Issuer for cash subsequent to the Issue Date
upon the conversion of such Indebtedness into Capital Stock (other than
Disqualified Stock) of the Issuer, or from the issuance to a Person which is
not a Subsidiary of the Issuer of any options, warrants or other rights to
acquire Capital Stock of the Issuer (in each case, exclusive of any
Disqualified Stock or any options, warrants or other rights that are redeemable
at the option of the holder, or are required to be redeemed, prior to the
Stated Maturity of the Securities) plus


 


(iii) an amount equal to the net reduction in Investments (other
than reductions in Permitted Investments) in any Person resulting from payments
of interest on Indebtedness, dividends, repayments of loans or advances, or
other transfers of assets, in each case, to the Issuer or any Restricted
Subsidiary or from the Qualified Proceeds from the sale of any such Investment
(except, in each case, to the extent any such payment or proceeds are included
in the calculation of Adjusted Consolidated Net Income), from the release of
any Guarantee or from redesignations of Unrestricted Subsidiaries as Restricted
Subsidiaries (valued in each case as provided in the definition of “Investments”),
not to exceed, in each


 


48

















 


case,
the amount of Investments previously made by the Issuer or any Restricted
Subsidiary in such Person or Unrestricted Subsidiary.


 


Notwithstanding the foregoing, the provisions set
forth in the immediately preceding paragraph do not prohibit:


 


(1) the payment of any dividend or redemption of any Capital Stock
within 60 days after the related date of declaration or call for redemption if,
at said date of declaration or call for redemption, such payment or redemption
would comply with the preceding paragraph;


 


(2) the making of any principal payment or the repurchase,
redemption, retirement, defeasance or other acquisition or retirement for value
of Indebtedness that is subordinated in right of payment to the Securities or
any Note Guarantee including premium, if any, and accrued interest, with the
proceeds of, or in exchange for, Indebtedness Incurred under clause (3) of
the second paragraph of Section 4.4(a);


 


(3) the repurchase, redemption or other acquisition of Capital
Stock of the Issuer or a Subsidiary Guarantor (or options, warrants or other
rights to acquire such Capital Stock) in exchange for, or out of the proceeds
of a capital contribution or a substantially concurrent offering of, shares of
Capital Stock (other than Disqualified Stock) of the Issuer (or options,
warrants or other rights to acquire such Capital Stock); provided that such
options, warrants or other rights are not redeemable at the option of the
holder, or required to be redeemed, prior to the Stated Maturity of the
Securities;


 


(4) the making of any principal payment or the repurchase,
redemption, retirement, defeasance or other acquisition or retirement for value
of Indebtedness (including premium, if any, and accrued interest) which is
subordinated in right of payment to the Securities or any Note Guarantee in exchange
for, or out of the proceeds of a capital contribution or a substantially
concurrent offering of, shares of the Capital Stock (other than Disqualified
Stock) of the Issuer (or options, warrants or other rights to acquire such
Capital Stock); provided that such options, warrants or other rights are not
redeemable at the option of the holder, or required to be redeemed, prior to
the Stated Maturity of the Securities;


 


(5) payments or distributions, to dissenting stockholders pursuant
to applicable law, pursuant to or in connection with a consolidation, merger or
transfer of assets of the Issuer that complies with the provisions of Article V;


 


(6) Investments acquired as a capital contribution to, or in
exchange for, or out of the proceeds of a substantially concurrent offering of,
Capital Stock (other than Disqualified Stock) of the Issuer;


 


(7) the repurchase of Capital Stock deemed to occur upon the
exercise of options or warrants if such Capital Stock represents all or a
portion of the exercise price thereof;


 


49

















 


(8) the declaration or payment of dividends on Capital Stock
(other than Disqualified Stock or preferred stock) of the Issuer in an
aggregate annual amount not to exceed 6% of the Net Cash Proceeds received by
the Issuer after the Issue Date from the sale of such Capital Stock;


 


(9) the one-time payment on or about the Issue Date of a $107.0
million dividend to holders of shares of the Issuer’s Capital Stock, as
described under the caption “Use of Proceeds” in the Offering Memorandum;


 


(10) the payment by the Issuer to any Affiliate of the Issuer of
management fees of not more than $500,000, in the aggregate in any calendar
year, as invoiced by such Affiliate;


 


(11)  the
repurchase or other acquisition of Capital Stock of the Issuer or any of its
Subsidiaries from employees, former employees, directors or former directors of
the Issuer or any of its Subsidiaries (or permitted transferees of such
employees, former employees, directors or former directors), pursuant to the
terms of the agreements (including employment agreements) or plans (or
amendments thereto) approved by the Board of Directors under which such
individuals purchase or sell, or are granted the option to purchase or sell,
such Capital Stock; provided, however, that the aggregate amount
of such repurchases and other acquisitions shall not exceed $1.0 million in any
calendar year;


 


(12)  the payment
of dividends or the making of loans or advances by the Issuer to the Parent not
to exceed $250,000 in any calendar year for cost and expenses incurred by the
Parent in its capacity as a holding company for services rendered by the Parent
on behalf of the Issuer;


 


(13)  payments or
distributions to the Parent pursuant to any Tax Sharing Agreement;


 


(14)  dividends
paid in respect of Disqualified Stock or preferred stock of the Issuer or any
Restricted Subsidiary of the Issuer which is permitted to be issued pursuant to
Section 4.4; provided, however, that the aggregate amount of
dividends paid in respect of preferred stock of the Issuer (other than
Disqualified Stock of the Issuer) pursuant to this clause (14) shall not exceed
the amount of Net Cash Proceeds from the issuance of such preferred stock;


 


(15)  the pledge
by the Issuer or any Restricted Subsidiary of the Capital Stock of an
Unrestricted Subsidiary to secure Non-Recourse Debt of that Unrestricted
Subsidiary; and


 


(16)  Restricted
Payments in an amount which, when taken together with all Restricted Payments
made pursuant to this clause (16), does not exceed $1.0 million;


 


provided that, except in the case of clauses (1) and (3), no Default or
Event of Default shall have occurred and be continuing or occur as a
consequence of the actions or payments set forth therein.


 


50

















 


Each Restricted Payment permitted pursuant to
the preceding paragraph (other than the Restricted Payment referred to in
clause (2), (7) through (10) and (12) through (15) thereof or an
exchange of Capital Stock for Capital Stock or Indebtedness referred to in
clause (3) or (4) thereof and an Investment acquired as a capital
contribution or in exchange for Capital Stock referred to in clause (6) thereof)
shall be included in calculating whether the conditions of clause (c) of
this Section 4.3 have been met with respect to any subsequent Restricted
Payments, and the Net Cash Proceeds from any issuance of Capital Stock to the
extent used to make Restricted Payments referred to in clause (3), (4) or (6) shall
not be included in such calculation.


 


For purposes of determining compliance with this Section 4.3,
(x) the amount, if other than in cash, of any Restricted Payment shall be
determined in good faith by the Board of Directors, whose determination shall
be conclusive and evidenced by a Board Resolution and (y) in the event that a
Restricted Payment meets the criteria of more than one of the types of
Restricted Payments described in the above clauses, including the first
paragraph of this Section 4.3, the Issuer, in its sole discretion, may order
and classify, and from time to time may reclassify, such Restricted
Payment if it would have been permitted at the time such Restricted Payment was
made and at the time of such reclassification.


 


Not later than the date of making any Restricted Payment,
the Issuer shall deliver to the Trustee an Officers’ Certificate stating that
such Restricted Payment complies with this Indenture and setting forth in
reasonable detail the basis upon which the required calculations were computed,
which calculations may be based upon the latest available internal
quarterly financial statements.


 


4.4  Limitation on Indebtedness
and Issuance of Preferred Stock.


 


(a) The Issuer shall not, and shall not permit
any of its Restricted Subsidiaries to, Incur any Indebtedness (other than the
Securities, the Note Guarantees and other Indebtedness existing on the Issue
Date) and the Issuer shall not permit any of its Restricted Subsidiaries to
issue any preferred stock; provided, however, that the Issuer may Incur
Indebtedness (including, without limitation, Acquired Indebtedness) and any
Restricted Subsidiary may Incur Indebtedness (including, without
limitation, Acquired Indebtedness) or issue preferred stock if, after giving
effect to the Incurrence of such Indebtedness or issuance of preferred stock
and the receipt and application of the proceeds therefrom, the Fixed Charge
Coverage Ratio of the Issuer would be greater than 2.0:1.0.


 


Notwithstanding the foregoing, the Issuer and any
Restricted Subsidiary (except as specified below) may Incur each and all
of the following:


 


(1) the
incurrence by the Issuer and any Restricted Subsidiary of additional
Indebtedness and letters of credit under Credit Facilities in an aggregate
principal amount at any one time outstanding under this clause (1) (with
letters of credit being deemed to have a principal amount equal to the maximum
potential liability of the Issuer and its Restricted Subsidiaries thereunder)
not to exceed a maximum of the greater of (a) $60.0 million less any
amount of such Indebtedness permanently repaid as provided under Section 4.18
and (b) the Borrowing Base;


 


51

















 


(2) Indebtedness owed (A) to
the Issuer or any Subsidiary Guarantor evidenced by an unsubordinated
promissory note or (B) to any other Restricted Subsidiary; provided that
(x) any event which results in any such Restricted Subsidiary ceasing to be a
Restricted Subsidiary or any subsequent transfer of such Indebtedness (other
than to the Issuer or another Restricted Subsidiary) shall be deemed, in each
case, to constitute an Incurrence of such Indebtedness not permitted by this
clause (2) and (y) if the Issuer or any Subsidiary Guarantor is the
obligor on such Indebtedness, such Indebtedness must be expressly subordinated
in right of payment to the Securities, in the case of the Issuer, or the Note
Guarantee, in the case of a Subsidiary Guarantor;


 


(3) Indebtedness issued
in exchange for, or the net proceeds of which are used to refinance or refund,
then outstanding Indebtedness (other than Indebtedness outstanding under clause
(2) or (11)) in an amount not to exceed the amount so refinanced or
refunded (plus premiums, accrued interest, fees and expenses); provided
that (a) Indebtedness the proceeds of which are used to refinance or
refund the Securities or Indebtedness that is pari passu with, or subordinated
in right of payment to, the Securities or a Note Guarantee shall only be
permitted under this clause (3) if (x) in case the Securities are
refinanced in part or the Indebtedness to be refinanced is pari passu with
the Securities or a Note Guarantee, such new Indebtedness, by its terms or by
the terms of any agreement or instrument pursuant to which such new
Indebtedness is outstanding, is expressly made pari passu with, or subordinate
in right of payment to, the remaining Securities or the Note Guarantee, or (y)
in case the Indebtedness to be refinanced is subordinated in right of payment
to the Securities or a Note Guarantee, such new Indebtedness, by its terms or
by the terms of any agreement or instrument pursuant to which such new
Indebtedness is issued or remains outstanding, is expressly made subordinate in
right of payment to the Securities or the Note Guarantee at least to the extent
that the Indebtedness to be refinanced is subordinated to the Securities or the
Note Guarantee, (b) such new Indebtedness, determined as of the date of
Incurrence of such new Indebtedness, does not mature prior to the Stated
Maturity of the Indebtedness to be refinanced or refunded, and the Average Life
of such new Indebtedness is at least equal to the remaining Average Life of the
Indebtedness to be refinanced or refunded and (c) such new Indebtedness is
Incurred by the Issuer or a Subsidiary Guarantor or by the Restricted Subsidiary
who is the obligor on the Indebtedness to be refinanced or refunded;


 


(4) Indebtedness of the
Issuer, to the extent the net proceeds thereof are promptly (A) used to
purchase Securities tendered in an Offer to Purchase made as a result of a
Change in Control or (B) deposited to defease the Securities pursuant to Article VIII;


 


(5) Guarantees of the
Securities and Guarantees of Indebtedness of the Issuer or any Restricted
Subsidiary by the Issuer or any Restricted Subsidiary; provided the
Guarantee of such Indebtedness is permitted by and made in accordance with Section 4.15;


 


(6) Indebtedness
arising from the honoring by a bank or other financial institution of a check,
draft or similar instrument inadvertently (except in the case of


 


52

















 


daylight overdrafts) drawn against insufficient
funds in the ordinary course of business; provided, however, that such
Indebtedness is extinguished within two Business Days of incurrence;


 


(7) Indebtedness in
respect of performance bonds, bankers’ acceptances, workers’ compensation
claims, surety or appeal bonds, payment obligations in connection with
self-insurance or similar obligations, and bank overdrafts (and letters of
credit in respect thereof);


 


(8) Indebtedness Incurred
or preferred stock issued to finance the cost (including the cost of
improvement or construction) to acquire real or personal property (including
acquisitions by way of Capitalized Lease Obligations and acquisitions of the
Capital Stock of a Person that becomes a Restricted Subsidiary, to the extent
of the fair market value of the real or personal property so acquired, plus
goodwill associated therewith) by the Issuer or a Restricted Subsidiary after
the Issue Date; provided, however, that the aggregate principal
amount of such Indebtedness and/or the liquidation preference of such preferred
stock outstanding at any time may not exceed $5.0 million;


 


(9) the incurrence by
the Issuer or any of its Restricted Subsidiaries of Acquired Indebtedness; provided
that the Fixed Charge Coverage Ratio immediately after giving pro forma effect
to such incurrence would be greater than the Fixed Charge Coverage Ratio
immediately prior to such incurrence;


 


(10) Indebtedness
consisting of (x) the financing of insurance premiums in the ordinary course of
business or (y) take-or-pay obligations contained in supply arrangements
entered into in the ordinary course of business; and


 


(11)  additional Indebtedness of the Issuer or
Indebtedness of or preferred stock issued by any Restricted Subsidiary (in
addition to Indebtedness permitted under clauses (1) through (10) above)
in an aggregate principal amount and/or liquidation preference of such
preferred stock outstanding at any time not to exceed $5.0 million, less any
amount of such Indebtedness permanently repaid as provided under Section 4.18.


 


(b) Notwithstanding any other provision
of this Section 4.4, the maximum amount of Indebtedness that may be
Incurred pursuant to this Section 4.4 shall not be deemed to be exceeded,
with respect to any outstanding Indebtedness due solely to the result of
fluctuations in the exchange rates of currencies.


 


(c) For purposes of determining any particular
amount of Indebtedness under this Section 4.4, Guarantees, Liens or
obligations with respect to letters of credit supporting Indebtedness otherwise
included in the determination of such particular amount shall not be included.
For purposes of determining compliance with this Section 4.4, in the event
that an item of Indebtedness meets the criteria of more than one of the types
of Indebtedness described in clause (a) of this Section 4.4
(including the first paragraph of such clause (a)), the Issuer, in its sole
discretion, may classify, and from time to time may reclassify, such
item of Indebtedness.


 


(d) The Obligors shall not Incur any
Indebtedness if such Indebtedness is subordinate in right of payment to any
other Indebtedness unless such Indebtedness is also subordinate in


 


53

















 


right of payment to the Securities (in the case of
the Issuer) or the Note Guarantees (in the case of any Subsidiary Guarantor),
in each case, to the same extent.


 


4.5  Corporate Existence.


 


Except as otherwise permitted by Article V, the
Issuer shall 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 Restricted Subsidiaries in accordance with
the respective organizational documents of each such Restricted Subsidiary and
the rights (charter and statutory) and material franchises of the Issuer and
each of its Restricted Subsidiaries; provided, however, that
neither the Issuer nor any Restricted Subsidiary shall be required to preserve
any such right or franchise or in the case of any Restricted Subsidiary, its
existence, if (in each case) the Board of Directors of the Issuer shall
determine that the loss thereof is not, and shall not be, adverse in any
material respect to the Holders.


 


4.6  Payment of Taxes and Other Claims.


 


The Issuer shall pay or discharge or cause to be
paid or discharged, before the same shall become delinquent, (a) all
material taxes, assessments and governmental charges levied or imposed upon it
or any of its Restricted Subsidiaries or upon the income, profits or property
of it or any of its Restricted Subsidiaries and (b) all lawful claims for
labor, materials and supplies which, in each case, if unpaid, might by law
become a material liability or Lien upon the property of it or any of its
Restricted Subsidiaries; provided, however, that the Issuer shall
not be required to pay or discharge or cause to be paid or discharged any such
tax, assessment, charge or claim whose amount, (i) the applicability or
validity is being contested in good faith by appropriate proceedings and for
which appropriate provision has been made or (ii) where the failure to
effect such payment or discharge is not adverse in any material respect to the
Holders.


 


4.7  Maintenance of Properties
and Insurance.


 


(a) The Issuer shall cause all material
properties owned or leased by it or any of its Restricted Subsidiaries used or
useful to the conduct of its business or the business of any of its Restricted
Subsidiaries, taken as a whole, to be maintained and kept in normal condition,
repair and working order and supplied with all necessary equipment and shall
cause to be made all repairs, renewals, replacements, and betterments thereof,
all as in its judgment may be necessary, so that the business carried on
in connection therewith may be properly and advantageously conducted at
all times; provided, however, that, subject to Section 4.22
nothing in this Section 4.7 shall prevent the Issuer or any of its
Restricted Subsidiaries from discontinuing the use, operation or maintenance of
any of such properties, or disposing of any of them, if such discontinuance or
disposal is, in the judgment of the Board of Directors of the Issuer or any
such Restricted Subsidiary desirable in the conduct of the business of the
Issuer or any such Restricted Subsidiary, and if such discontinuance or
disposal is not adverse in any material respect to the Holders; provided
further that nothing in this Section 4.7 shall
prevent the Issuer or any of its Restricted Subsidiaries from discontinuing or
disposing of any properties to the extent otherwise permitted by this
Indenture.


 


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(b) The Issuer shall maintain, and shall cause
its Restricted Subsidiaries to maintain, insurance with responsible carriers
against such risks and in such amounts, and with such deductibles, retentions,
self-insured amounts and co-insurance provisions, as are, in the reasonable
judgment, customarily carried by similar businesses of similar size, including
property and casualty loss, workers’ compensation and interruption of business
insurance.


 


4.8  Compliance Certificate;
Notice of Default.


 


(a) The Issuer shall deliver to the Trustee,
within 90 days after the close of each fiscal year of the Issuer, an Officers’
Certificate stating that a review of the activities of the Issuer and its
Restricted Subsidiaries has been made under the supervision of the signing
Officers with a view to determining whether they have kept, observed, performed
and fulfilled their obligations under this Indenture and further stating, as to
each such Officer signing such certificate, that to the best of his or her
knowledge, the Issuer and it’s Restricted Subsidiaries during such preceding
fiscal year have kept, observed, performed and fulfilled each and every such
covenant and no Default or Event of Default occurred during such year and at
the date of such certificate there is no Default or Event of Default that has
occurred and is continuing or, if such signers do know of such Default or Event
of Default, the certificate shall describe its status with particularity. The
applicable Officers’ Certificate shall also notify the Trustee should the
Issuer or any of its Restricted Subsidiaries elect to change the manner in
which it fixes its fiscal year end.


 


(b) The Issuer shall deliver to the Trustee, in
the event that any Officer becomes aware of any Default or Event of Default in
the performance of any covenant, agreement or condition contained in this
Indenture, an Officers’ Certificate specifying the Default or Event of Default
and describing its status with particularity.


 


4.9  Compliance with Laws.


 


The Issuer shall comply, and shall cause each of its
Subsidiaries to comply, with all applicable statutes, rules, regulations,
orders and restrictions of the United States, all states and municipalities
thereof, and of any governmental department, commission, board, regulatory
authority, bureau, agency and instrumentality of the foregoing, in respect of
the conduct of their respective businesses and the ownership of their
respective properties, except for such noncompliances as would not in the
aggregate have a material adverse effect on the financial condition or results
of operations of the Issuer and its Subsidiaries taken as a whole.


 


4.10  Commission Reports and
Reports to Holders.


 


At all times from and after the earlier of (1) the
date of the commencement of an Exchange Offer or the effectiveness of the Shelf
Registration Statement (the “Registration”) and (2) June 30,
2006, in either case, whether or not the Issuer is then required to file
reports with the Commission, the Issuer shall file with the Commission, unless
the Commission shall not accept such filing (x) all quarterly and annual
financial information that would be required to be contained in a filing with
the Commission on Forms 10-Q and 10-K if the Issuer were required to file such
forms, including a “Management’s Discussion and Analysis of Financial Condition
and Results of Operations” and, with respect to the annual information only, a
report on the annual financial statements by the certified independent
accountants and (y) all current reports that


 


55

















 


would be required to be filed with the Commission on Form 8-K if
the Issuer were required to file such reports. The Issuer shall supply to the
Trustee and to each Holder or shall supply to the Trustee for forwarding to
each such Holder who so requests, without cost to such Holder, copies of such
reports and other information. In addition, at all times prior to the earlier
of the date of the Registration and June 30, 2006, the Issuer shall, at
its cost, deliver to each Holder of the Securities copies of such reports and
other information. In addition, at all times prior to the Registration, upon
the request of any Holder of Securities or any prospective purchaser of the
Securities designated by a Holder of Securities, the Obligors shall supply to
such Holder or such prospective purchaser the information required under Rule 144A
under the Securities Act.


 


4.11  Waiver of Stay, Extension or
Usury Laws.


 


The Issuer and each Subsidiary Guarantor covenants
(to the extent enforceable by law) that it shall not at any time insist upon,
plead, or in any manner whatsoever claim or take the benefit or advantage of,
any stay or extension law or any usury law or other law that would prohibit or
forgive such Issuer or such Subsidiary Guarantor from paying all or any portion
of the principal of, premium, if any, and/or interest on the Securities or the
Subsidiary Guarantee of any such Subsidiary Guarantor as contemplated herein,
wherever enacted, now or at any time hereafter in force, or which may affect
the covenants or the performance of this Indenture, and (to the extent
enforceable by law) each hereby expressly waives all benefit or advantage of
any such law, and covenants to the extent enforceable by law that it shall not
hinder, delay or impede the execution of any power herein granted to the
Trustee, but shall suffer and permit the execution of every such power as
though no such law had been enacted.


 


4.12  Limitations on Transactions
with Shareholders and Affiliates.


 


(a) The Issuer shall not, and shall not permit
any Restricted Subsidiary to, directly or indirectly, enter into, renew or
extend any transaction (including, without limitation, the purchase, sale,
lease or exchange of property or assets, or the rendering of any service) with
any holder (or any Affiliate of such holder) of 10% or more of any class of
Capital Stock of the Issuer or with any Affiliate of the Issuer, except upon
fair and reasonable terms no less favorable to the Issuer or such Restricted
Subsidiary than could be obtained, at the time of such transaction or, if such
transaction is pursuant to a written agreement, at the time of the execution of
the agreement providing therefor, in a comparable arm’s length transaction with
a Person that is not such a holder or an Affiliate.


 


(b) The restrictions set forth in clause (a) shall
not apply to:


 


(i) transactions (A) approved by a majority of the
disinterested members of the Board of Directors or (B) for which the
Issuer or a Restricted Subsidiary delivers to the Trustee a written opinion of
a nationally recognized investment banking, accounting, valuation or appraisal
firm stating that the transaction is fair to the Issuer or such Restricted
Subsidiary from a financial point of view;


 


(ii) any transaction solely between the Issuer and any of its
Restricted Subsidiaries or solely among Restricted Subsidiaries;


 


56

















 


(iii) the payment of reasonable and customary regular fees to
directors of the Issuer who are not employees of the Issuer and customary
indemnification arrangements entered into by the Issuer;


 


(iv) any payments or other transactions pursuant to any
tax-sharing agreement between the Issuer and any other Person with which the
Issuer files a consolidated tax return or with which the Issuer is part of
a consolidated group for tax purposes;


 


(v) any sale of shares of Capital Stock (other than Disqualified
Stock) of the Issuer;


 


(vi) any Permitted Investments or any Restricted Payments not
prohibited by Section 4.3;


 


(vii) any agreement as in effect or entered into as of the Issue
Date (as disclosed in the Offering Memorandum) or any amendment thereto or any
transaction contemplated thereby (including pursuant to any amendment thereto)
in any replacement agreement thereto so long as any such amendment or
replacement agreement is not more disadvantageous to the Holders in any
material respect than the original agreement as in effect on the Issue Date;


 


(viii) the issuance of securities or other payments, awards or
grants in cash, securities or otherwise pursuant to or the funding of,
employment arrangements, stock options and stock ownership plans or similar
employee benefit plans approved by the Board of Directors in good faith and
loans to employees of the Issuer and its Subsidiaries which are approved by the
Board of Directors in good faith;


 


(ix) transactions with customers, clients, suppliers, or
purchasers or sellers of goods or services, in each case on ordinary business
terms and otherwise in compliance with the terms of the indenture, which are
fair to the Issuer or its Restricted Subsidiaries, in the reasonable
determination of the Board of Directors of the Issuer or the senior management
thereof, or are on terms at least as favorable as could reasonably have been
obtained at such time from an unaffiliated party;


 


(x)  the payment
by the Issuer to any Affiliate of the Issuer of management fees of not more
than $500,000, in the aggregate in any calendar year, as invoiced by such
Affiliate;


 


(xi)  any
transaction with a joint venture or similar entity which would be subject to
this covenant solely because the Issuer or a Restricted Subsidiary of the
Issuer owns an equity interest in or otherwise controls such joint venture or
similar entity;


 


(xii)  payments of
customary and reasonable fees by the Issuer or any of its Restricted
Subsidiaries to the Permitted Holders made for any financial advisory,
financing, underwriting or placement services (whether structured as a fee or
as an underwriting discount) or in respect of other commercial or investment
banking activities, including, without limitation, in connection with
acquisitions or divestitures, provided


 


57

















 


that
each such payment shall be approved by a majority of the disinterested members
of the Board of Directors; or


 


(xiii)  payments
and transactions in connection with the Credit Agreement (including commitment,
syndication and arrangement fees payable thereunder) and this offering,
including underwriting discounts and commissions in connection therewith, and
the application of the proceeds of each, and the payment of fees and expenses
with respect thereto.


 


Notwithstanding the foregoing, any
transaction or series of related transactions covered by clause (a) of
this Section 4.12 and not covered by clauses (ii) through (xiii) of
this clause (b), (x) the aggregate amount of which exceeds $5.0 million in
value, must be approved or determined to be fair in the manner provided for in
clause (b)(i)(A) or (B) and (y) the aggregate amount of which exceeds
$10.0 million in value must be determined to be fair in the manner provided for
in clause (b)(i)(B).


 


4.13  Limitation on Dividend and
Other Payment Restrictions Affecting Subsidiaries.


 


The Issuer shall not, and shall not permit any
Restricted Subsidiary to, create or otherwise cause or suffer to exist or
become effective any consensual encumbrance or restriction of any kind on the
ability of any Restricted Subsidiary to (1) pay dividends or make any
other distributions permitted by applicable law on any Capital Stock of such
Restricted Subsidiary owned by the Issuer or any other Restricted Subsidiary, (2) pay
any Indebtedness owed to the Issuer or any other Restricted Subsidiary, (3) make
loans or advances to the Issuer or any other Restricted Subsidiary or (4) transfer
any of its property or assets to the Issuer or any other Restricted Subsidiary,
except for any encumbrances or restrictions:


 


(i) existing on the Issue Date in the Credit Agreement, this
Indenture or otherwise, and any extensions, refinancings, renewals or
replacements thereof; provided that the encumbrances and restrictions in
any such extensions, refinancings, renewals or replacements taken as a whole
are, in the good faith judgment of the Board of Directors, no less favorable in
any material respect to the Holders than those encumbrances or restrictions
that are then in effect and that are being extended, refinanced, renewed or
replaced;


 


(ii) existing under or by reason of applicable law;


 


(iii) existing with respect to any Person or the property or
assets of such Person acquired by the Issuer or any Restricted Subsidiary,
existing at the time of such acquisition and not incurred in contemplation
thereof, which encumbrances or restrictions are not applicable to any Person or
the property or assets of any Person other than such Person or the property or
assets of such Person so acquired and any extensions, refinancings, renewals or
replacements thereof; provided that the encumbrances and restrictions in
any such extensions, refinancings, renewals or replacements taken as a whole
are, in the good faith judgment of the Board of Directors, no less favorable in
any material respect to the Holders than those encumbrances or restrictions
that are then in effect and that are being extended, refinanced, renewed or
replaced;


 


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(iv) in the case of clause (4) of the first paragraph of this
Section 4.13:


 


(A) that restrict in a customary manner the subletting, assignment
or transfer of any property or asset that is a lease, license, conveyance or
contract or similar property or asset,


 


(B) existing by virtue of any transfer of, agreement to transfer,
option or right with respect to, or Lien on, any property or assets of the
Issuer or any Restricted Subsidiary not otherwise prohibited by this Indenture,


 


(C) arising or agreed to in the ordinary course of business, not
relating to any Indebtedness, and that do not, individually or in the
aggregate, detract from the value of property or assets of the Issuer or any
Restricted Subsidiary in any manner material to the Issuer or any Restricted
Subsidiary, or


 


(D) arising under purchase money obligations for property acquired
in the ordinary course of business or Capitalized Lease Obligations;


 


(v) with respect to a Restricted Subsidiary and imposed pursuant
to an agreement that has been entered into for the sale or disposition of all
or substantially all of the Capital Stock of, or property and assets of, such
Restricted Subsidiary;


 


(vi) arising from customary provisions in joint venture agreements
and other similar agreements entered into in the ordinary course of business;


 


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


 


(viii) arising in connection with any Indebtedness, Disqualified
Stock or preferred stock of the Issuer or any Restricted Subsidiary of the
Issuer permitted to be incurred subsequent to the date of the Issue Date
pursuant to the provisions of Section 4.4.


 


Nothing contained in this Section 4.13
shall prevent the Issuer or any Restricted Subsidiary from (1) creating,
incurring, assuming or suffering to exist any Liens otherwise permitted under Section 4.16
or (2) restricting the sale or other disposition of property or assets of
the Issuer or any of its Restricted Subsidiaries that secure Indebtedness of
the Issuer or any of its Restricted Subsidiaries.


 


4.14  Limitation on the Issuance
and Sale of Capital Stock of Restricted Subsidiaries.


 


The Issuer shall not sell,
and shall not permit any Restricted Subsidiary, directly or indirectly, to
issue or sell, any shares of Capital Stock of a Restricted Subsidiary
(including options, warrants or other rights to purchase shares of such Capital
Stock) except:


 


(a) to the Issuer or a Wholly Owned Restricted Subsidiary;


 


59

















 


(b) issuances of director’s qualifying shares or sales to foreign
nationals of shares of Capital Stock of foreign Restricted Subsidiaries, to the
extent required by applicable law;


 


(c) if, immediately after giving effect to such issuance or sale,
such Restricted Subsidiary would no longer constitute a Restricted Subsidiary
and any Investment in such Person remaining after giving effect to such
issuance or sale would have been permitted to be made under Section 4.3 if
made on the date of such issuance or sale; or


 


(d) sales of common stock (including options, warrants or other
rights to purchase shares of such common stock) of a Restricted Subsidiary by
the Issuer or a Restricted Subsidiary, provided that the Issuer or such
Restricted Subsidiary applies the Net Cash Proceeds of any such sale in
accordance with clause (b)(i) or (b)(ii) of Section 4.18.


 


4.15  Issuances of Guarantees by
Restricted Subsidiaries.


 


The Issuer shall cause each
Restricted Subsidiary that Guarantees any Indebtedness of the Issuer or any Subsidiary
Guarantor (other than any revolving credit or other similar agreement the
aggregate principal amount outstanding under which does not exceed the
Borrowing Base) to execute and deliver a supplemental indenture to this
Indenture providing for a Subsidiary Guarantee of payment of the Securities by
such Restricted Subsidiary. In addition, in the event that any Subsidiary of
the Issuer becomes a Subsidiary Guarantor pursuant to the terms of this
Indenture, the Issuer and such Subsidiary shall execute such collateral
documents and other instruments and take such other measures as are reasonably
necessary to cause the property and assets of such Subsidiary that constitute
Secondary Collateral to be subject to the First Priority Liens and the Second
Priority Liens and to perfect such Liens in respect of such property and
assets, in each case, in the manner and to the extent required under the
Security Documents.


 


Notwithstanding the
foregoing, any Subsidiary Guarantee by a Restricted Subsidiary (including NELLC,
if it shall be a Subsidiary Guarantor) may provide by its terms that it
shall be automatically and unconditionally released and discharged (and any and
all Note Liens granted by such Subsidiary Guarantor shall also be released and
discharged) upon (1) any sale, exchange or transfer to any Person not an
Affiliate of the Issuer, of all of the Capital Stock of such Subsidiary
Guarantor owned directly or indirectly by the Issuer (which sale, exchange or
transfer is not prohibited by this Indenture), (2) the designation of such
Subsidiary Guarantor as an Unrestricted Subsidiary in accordance with the terms
of this Indenture or (3) any defeasance or discharge of the Securities
pursuant to the provisions of Article VIII.


 


4.16  Limitation on Liens.


 


The Issuer shall not, and
shall not permit any Restricted Subsidiary to, create, incur, assume or suffer
to exist any Lien on any of its assets or properties of any character
(including any shares of Capital Stock or Indebtedness of any Restricted
Subsidiary), except for the following Liens which are expressly permitted:


 


(i) Liens existing on the Issue Date;


 


60

















 


(ii) Liens granted on or after the Issue Date on any assets or
Capital Stock of the Issuer or its Restricted Subsidiaries created in favor of
the Holders;


 


(iii) Liens securing Indebtedness which is Incurred to refinance
secured Indebtedness which is permitted to be Incurred under clause (3) of
the second paragraph of part (a) of Section 4.4; provided
that such Liens do not extend to or cover any property or assets of the Issuer
or any Restricted Subsidiary other than the property or assets securing the
Indebtedness being refinanced;


 


(iv) Liens to secure First Priority Lein Obligations; provided
that any such Liens on any property or assets constituting Shared Primary
Collateral that rank equally or prior to the Liens securing the Securities and
any such Liens on any other Primary Collateral, in each case, shall not be
permitted under this Indenture;


 


(v) Liens (including extensions and renewals thereof) upon real or
personal property acquired after the Issue Date; provided that (a) such
Lien is created solely for the purpose of securing Indebtedness Incurred, in
accordance with Section 4.4, to finance the cost (including the cost of
improvement or construction) of the item of property or assets subject thereto
and such Lien is created prior to, at the time of or within six months after
the later of the acquisition, the completion of construction or the commencement
of full operation of such property, (b) the principal amount of the
Indebtedness secured by such Lien does not exceed 100% of such cost, and (c) any
such Lien shall not extend to or cover any property or assets other than such
item of property or assets and any improvements on such item;


 


(vi) Liens on cash set aside at the time of the Incurrence of any
Indebtedness, or government securities purchased with such cash, in either
case, to the extent that such cash or government securities pre-fund the payment
of interest on such Indebtedness and are held in a collateral or escrow account
or similar arrangement to be applied for such purpose;


 


(vii) Liens on assets, property or Capital Stock of any Restricted
Subsidiary that is not a Subsidiary Guarantor securing Indebtedness permitted
under this Indenture; or


 


(viii) Permitted Liens.


 


4.17  Change of Control.


 


(a) The Issuer shall
commence, within 30 days of the occurrence of a Change of Control, and
consummate an Offer to Purchase for all Securities then outstanding, at a
purchase price equal to 101% of their principal amount, plus accrued interest
(if any) to the Payment Date.


 


(b) Notwithstanding the
provisions of clause (a) of this Section 4.17, the Issuer shall not
be required to make an Offer to Purchase upon the occurrence of a Change of
Control if a third party makes an offer to purchase the Securities in the
manner, at the times and price and otherwise in compliance with the
requirements of this Indenture applicable to an Offer to


 


61

















 


Purchase for a Change of Control and purchases all
Securities validly tendered and not withdrawn in such Offer to Purchase.


 


4.18  Limitation on Asset Sales.


 


(a) The Issuer shall
not, and shall not permit any Restricted Subsidiary to, consummate any Asset
Sale, unless (1) the consideration received by the Issuer or such
Restricted Subsidiary is at least equal to the fair market value of the assets
sold or disposed of, (2) at least 75% of the consideration received
consists of (a) cash or Temporary Cash Investments, (b) the
assumption of unsubordinated Indebtedness of the Issuer or any Subsidiary
Guarantor or Indebtedness of any other Restricted Subsidiary (in each case,
other than Indebtedness owed to the Issuer or any Affiliate of the Issuer), provided
that the Issuer, such Subsidiary Guarantor or such other Restricted Subsidiary
is irrevocably and unconditionally released from all liability under such
Indebtedness, or (c) Replacement Assets, and (3) in the event of a
Primary Collateral Asset Sale, the Net Cash Proceeds corresponding to the
Primary Collateral sold shall be paid directly to the Collateral Agent for
deposit into the Collateral Account which shall become part of the Primary
Collateral and be subject to the Primary Collateral Lien in favor of the
Holders.


 


For the purposes of this
provision, any securities, notes or other obligations received by the Issuer or
any of its Restricted Subsidiaries from the transferee that are converted by
the Issuer or any of its Restricted Subsidiaries into cash or Temporary Cash
Investments within 180 days of their receipt by the Issuer or any of its
Restricted Subsidiaries shall be deemed to be cash, but only to the extent of
the cash or Temporary Cash Investments received.


 


(b) The Issuer shall,
or shall cause the relevant Restricted Subsidiary to, within twelve months
after the date of receipt of any Net Cash Proceeds from an Asset Sale,


 


(i) solely in the case of Net Cash Proceeds from any Asset Sale
other than a Primary Collateral Asset Sale, apply an amount equal to such Net
Cash Proceeds to permanently repay or reduce outstanding (a) First
Priority Lien Obligations, (b) Indebtedness of the Issuer that is pari
passu in right of payment with the Securities, (c) Indebtedness of any Subsidiary
Guarantor that is pari passu in right of payment with the relevant Subsidiary
Guarantee or (d) Indebtedness of any other Restricted Subsidiary, or


 


(ii) invest an equal amount, or the amount not so applied pursuant
to clause (i) (or enter into a definitive agreement committing to so
invest within 12 months after the date of such agreement) in Replacement
Assets.


 


The amount of such excess
Net Cash Proceeds required to be applied (or to be committed to be applied)
during such 12-month period as set forth in the preceding sentence and not
applied as so required by the end of such period shall constitute “Excess
Proceeds.”


 


(c) If, as of the first
day of any calendar month, the aggregate amount of Excess Proceeds not
theretofore subject to an Offer to Purchase pursuant to this Section 4.18
totals at least $10 million, the Issuer shall commence, not later than the
fifteenth Business Day of such month, and consummate an Offer to Purchase from
the Holders (and, if required by the terms of any Indebtedness that is pari
passu in right of payment with the Securities (“Pari Passu


 


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Indebtedness”), from the holders of such Pari Passu
Indebtedness) on a pro rata basis an aggregate principal amount of Securities
(and Pari Passu Indebtedness) equal to the Excess Proceeds on such date, at a
purchase price equal to 100% of their principal amount, plus, in each case,
accrued interest (if any) to the Payment Date. To the extent that any Excess
Proceeds remain after consummation of an Offer to Purchase pursuant to this Section 4.18,
the Issuer may use those Excess Proceeds for any purpose not otherwise
prohibited by this Indenture and the amount of Excess Proceeds shall be reset
to zero.


 


4.19  Pledge of Capital Stock of NELLC.


 


In the event that either the
Issuer shall obtain the requisite consent of the holders of the Capital Stock
of NELLC or the Issuer and/or its Affiliates shall own at least 80% of such
Capital Stock, such Capital Stock shall become part of the Secondary
Collateral contemporaneously with such Capital Stock becoming subject to the
First Priority Liens, and the Issuer, such Subsidiary Guarantor and NELLC shall
promptly execute such collateral documents and other instruments and take such
other measures as are reasonably necessary to cause such Capital Stock to be
subject to the First Priority Liens and the Second Priority Liens and to
perfect such Liens in respect of such Capital Stock, in each case, in the
manner and to the extent required under the Security Documents.


 


4.20  Limitation on Sale and
Leaseback Transactions.


 


The Issuer shall not, and
shall not permit any Restricted Subsidiary to, enter into any Sale and
Leaseback Transaction involving any of its assets or properties whether now
owned or hereafter acquired; provided, however, that the Issuer
or any Restricted Subsidiary may enter into a Sale and Leaseback
Transaction if:


 


(a) the consideration received in such Sale and Leaseback
Transaction is at least equal to the fair market value of the property so sold
or otherwise transferred, as determined by a resolution of the Board of
Directors;


 


(b) the Issuer or such Restricted Subsidiary, as applicable, would
be permitted to grant a Lien to secure Indebtedness under Section 4.16 in
the amount of the Attributable Debt in respect of such Sale Leaseback
Transaction;


 


(c) prior to and after giving effect to the Attributable Debt in
respect of such Sale and Leaseback Transaction, the Issuer and such Restricted
Subsidiary comply with Section 4.4; and


 


(d) the Issuer or such Restricted Subsidiary applies an amount not
less than the net proceeds received from such sale in accordance with Section 4.18.


 


4.21  Limitation on Business
Activities.


 


The Issuer shall not, and
shall not permit any of its Restricted Subsidiaries to, engage in any business
other than a Permitted Business.


 


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4.22  Limitation on Impairment of
Security Interest.


 


Neither the Issuer nor any
of its Subsidiaries may take or omit to take any action which action or
omission could reasonably be expected to have the result of adversely affecting
or impairing the Primary Collateral Liens or the Second Priority Liens, other
than as expressly contemplated by this Indenture or the Security Documents; provided,
however, that the taking of any action with respect to the Collateral
that is required by the terms of this Indenture shall be deemed not to impair
such security interest.


 


4.23  Events of Loss.


 


(a) In the event of an
Event of Loss with respect to any Primary Collateral, the Issuer shall apply
the Net Loss Proceeds from such Event of Loss, at its option, to (1) the
rebuilding, repair, replacement or construction of improvements to the affected
property within two years after receipt of such Net Loss Proceeds, (2) the
acquisition of or investment in Replacement Assets within one year after
receipt of such Net Loss Proceeds or (3) a redemption of the Securities
pursuant to an Offer to Purchase on the terms described in the next succeeding
paragraph. Pending the final application of any Net Loss Proceeds, the Issuer
shall deposit such Net Loss Proceeds in the Collateral Account.


 


(b) Any Net Loss
Proceeds from an Event of Loss that are not applied or invested as provided in
the preceding paragraph shall be deemed to constitute “Excess Loss Proceeds.”
If, as of the first day of any calendar month, the aggregate amount of Excess
Loss Proceeds not theretofore subject to an Offer to Purchase pursuant to this Section 4.23
totals at least $10.0 million, the Issuer shall commence, not later than the
fifteenth Business Day of such month, and consummate an Offer to Purchase from
the Holders on a pro rata basis an aggregate principal amount of Securities
equal to the Excess Loss Proceeds on such date, at a purchase price equal to
100% of their principal amount plus accrued interest (if any) to the Payment
Date. Any Offer to Purchase commenced pursuant to this Section 4.23 shall
be referred to as an “Event of Loss Offer to Purchase.” To the extent that any
Excess Loss Proceeds remain after consummation of an Event of Loss Offer to
Purchase, the Issuer may use those Excess Loss Proceeds for any purpose
not otherwise prohibited by this Indenture and the amount of Excess Loss
Proceeds shall be reset to zero.


 


4.24  Escrow of Proceeds to Be
Used for Pekin Facility Expansion.


 


On the Issue Date, the
Issuer shall deposit $62.5 million of the net proceeds from the offering of the
Securities on such date in the Escrow Account pending application of such funds
to the construction of the planned expansion of the ethanol production capacity
to 56.5 million gallons per year (utilizing a dry million process) at Aventine
Renewable Energy, Inc.’s Pekin, Illinois facility (the “Pekin Facility
Expansion”).


 


In the event that:


 


(1) construction of the
Pekin Facility Expansion shall not have been commenced by June 30, 2006,
or


 


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(2) the Issuer shall
have provided written notice to the Trustee and the Escrow Agent at any time of
its decision not to proceed with or complete the construction of the Pekin,
Facility Expansion, the Issuer shall be required to commence, not later than
the next Business Day following either the date specified in clause (1) above
or the date on which the notice specified in clause (2) above is sent, as
applicable, and consummate an Offer to Purchase (a “Special Offer to Purchase”)
from the Holders on a pro rata basis, an aggregate principal amount of
Securities equal to the lesser of (i) $62.5 million and (ii) the
aggregate amount held in the Escrow Account at such time at a purchase price
equal to 100% of their principal amount, plus accrued and unpaid interest to
the date on which the Securities are purchased.


 


ARTICLE V


 


SUCCESSOR
CORPORATION


 


5.1  Merger, Consolidation and
Sale of Assets.


 


(a) The Issuer shall
not consolidate with, merge with or into, or sell, convey, transfer, lease or
otherwise dispose of all or substantially all of its property and assets (as an
entirety or substantially an entirety in one transaction or a series of
related transactions) to, any Person or permit any Person to merge with or into
it unless:


 


(i) it shall be the continuing Person, or the Person (if other
than it) formed by such consolidation or into which it is merged or that
acquired or leased such property and assets (the “Surviving Person”)
shall be organized and validly existing under the laws of the United States of
America or any jurisdiction thereof and shall expressly assume, by a
supplemental indenture, executed and delivered to the Trustee, all of the
obligations under this Indenture, the Securities, the Registration Rights
Agreement and the Security Documents;


 


(ii) each of the conditions specified in paragraph (c) below
is satisfied; and


 


(iii) each Subsidiary Guarantor, unless such Subsidiary Guarantor
is the Person with which the Issuer has entered into a transaction under this Section 5.1,
shall have by amendment to its Note Guarantee confirmed that its Note Guarantee
shall apply to the obligations of the Issuer or the Surviving Person in
accordance with the Securities and this Indenture.


 


(b) No Subsidiary
Guarantor shall consolidate with or merge with or into any Person or permit any
Person to merge with or into it unless:


 


(i) it shall be the continuing Person, or the Person (if other
than it) formed by such consolidation or into which it is merged (the “Subsidiary
Guarantor Surviving  Person”) shall expressly assume, by a supplemental
indenture, executed and delivered to the Trustee, all of such Subsidiary
Guarantor obligations under its Note Guarantee, the Registration Rights
Agreement and the Security Documents; and


 


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(ii) each of the conditions specified in paragraph (c) below
is satisfied.


 


The foregoing requirements
of this paragraph (b) shall not apply to (x) a consolidation or merger of
any Subsidiary Guarantor with and into the Issuer or any other Subsidiary
Guarantor, so long as the Issuer or such Subsidiary Guarantor survives such
consolidation or merger or (y) a sale or other disposition of all of the assets
of a Subsidiary Guarantor, by way of merger, consolidation or otherwise, if the
Issuer or a Restricted Subsidiary applies the Net Cash Proceeds of that sale or
other disposition in accordance with Section 4.18.


 


(c) The following
additional conditions shall apply to each transaction described in paragraph (a) or
(b) above, except that clause (ii) below shall not apply to a
transaction described in paragraph (b):


 


(i) immediately after giving effect to such transaction, no
Default or Event of Default shall have occurred and be continuing;


 


(ii) immediately after giving effect to such transaction on a pro
forma basis the Issuer (or the Surviving Person, if applicable) (x) could
Incur at least $1.00 of Indebtedness under the first paragraph of part (a) of
Section 4.4 covenant or (y) would, together with its Restricted
Subsidiaries, have a greater Fixed Charge Coverage Ratio immediately after that
transaction (after giving pro forma effect thereto as if that transaction had
occurred at the beginning of the applicable four-quarter period) than the Fixed
Charge Coverage Ratio of the Issuer and its Restricted Subsidiaries immediately
prior to that transaction; provided that this clause (ii) shall not
apply to a consolidation, merger or sale of all (but not less than all) of the
assets of the Issuer if all Liens and Indebtedness of the Issuer (or the
Surviving Person) together with the Restricted Subsidiaries of such Person,
outstanding immediately after such transaction would have been permitted (and
all such Liens and Indebtedness, other than Liens and Indebtedness of such
Person and its Restricted Subsidiaries outstanding immediately prior to the
transaction, shall be deemed to have been Incurred) for all purposes of this Indenture;


 


(iii) the Issuer or the Surviving Person, as applicable, shall
cause such amendments, supplements or other instruments to be filed, executed
and/or recorded in such jurisdictions as may be required by applicable law
to preserve and protect the Note Liens on the Collateral owned by or sold,
conveyed, transferred, leased or otherwise disposed of to such Person, together
with such financing statements as may be required to perfect any security
interests in such Collateral which may be perfected by the filing of a
financing statement under the UCC of the relevant states;


 


(iv) the Collateral owned by or sold, conveyed, transferred,
leased or otherwise disposed of to the Issuer or such Subsidiary Guarantor or
the relevant surviving entity, as applicable, shall


 


(A) continue to constitute Collateral under this Indenture and the
Security Documents, and


 


(B) be subject to the Note Liens, as applicable, in favor of the
Collateral Agent for the benefit of the Trustee and the Holders;


 


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(v) the assets of the Person which is merged or consolidated with
or into the relevant surviving entity, to the extent that they are assets of
the types which would constitute Collateral under this Indenture and the
Security Documents, shall be treated as after acquired property and such
surviving entity shall take such action as may be reasonably necessary to
cause such assets to be made subject to the Note Liens and to perfect such
Liens in respect of such assets, in each case, in the manner and to the extent
required under the Security Documents; and


 


(vi) the Issuer shall have delivered to the Trustee an Officers’
Certificate (attaching the arithmetic computations to demonstrate compliance
with clause (ii) of this paragraph (c) unless compliance therewith is
not required) and an opinion of counsel, each stating that such transaction
and, if a supplemental indenture or supplemental Security Documents are
required in connection with such transaction, such supplemental indenture and
Security Documents comply with the applicable provisions of this Indenture,
that all conditions precedent in this Indenture relating to such transaction
have been satisfied and that supplemental indenture and Security Documents are
enforceable;


 


provided, however, that clause (ii) above does not apply
if, in the good faith determination of the Board of Directors, whose
determination shall be evidenced by a Board Resolution, the principal purpose
of such transaction is to change the state of incorporation of the Issuer and
any such transaction shall not have as one of its purposes the evasion of the
foregoing limitations.


 


5.2  Successor Corporation Substituted.


 


Upon any consolidation,
combination or merger or any transfer of all or substantially all of the assets
of the Issuer or any Subsidiary Guarantor in accordance with Section 5.1
in which the Issuer or such Subsidiary Guarantor, as applicable, is not the
continuing corporation, the successor Person formed by such consolidation or
into which the Issuer or such Guarantor is merged or to which such conveyance,
lease or transfer is made shall succeed to, and be substituted for, and may exercise
every right and power of, the Issuer or such Subsidiary Guarantor under this
Indenture and the Securities or any Subsidiary Guarantee, as applicable, with
the same effect as if such Surviving Entity had been named as such.


 


ARTICLE VI


 


DEFAULT AND
REMEDIES


 


6.1  Events of Default.


 


Each of the following shall
be an “Event of Default”:


 


(i) default in the payment of principal of (or premium, if any,
on) any Security when the same becomes due and payable at maturity, upon
acceleration, redemption or otherwise;


 


(ii) default in the payment of interest on any Security when the
same becomes due and payable, and such default continues for a period of 30
days;


 


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(iii) default in the performance or breach of the provisions of Article V
or the failure by the Issuer to make or consummate an Offer to Purchase in
accordance with Section 4.17, 4.18, 4.23 or 4.24 and such default or
breach continues for a period of 30 consecutive days after written notice by
the Trustee or the Holders of 25% or more in aggregate principal amount of the
Securities;


 


(iv) the Issuer or any Subsidiary Guarantor defaults in the
performance of or breaches any other covenant or agreement in this Indenture or
under the Securities (other than a default specified in clause (i), (ii) or
(iii) above) and such default or breach continues for a period of 60
consecutive days after written notice by the Trustee or the Holders of 25% or
more in aggregate principal amount of the Securities;


 


(v) there occurs with respect to any issue or issues of
Indebtedness of the Issuer, any Subsidiary Guarantor or any Significant Subsidiary
having an outstanding principal amount of $10.0 million or more in the
aggregate for all such issues of all such Persons, whether such Indebtedness
now exists or shall hereafter be created, (A) an event of default that has
caused the holder thereof to declare such Indebtedness to be due and payable
prior to its Stated Maturity and such Indebtedness has not been discharged in
full or such acceleration has not been rescinded or annulled within 30 days of
such acceleration and/or (B) the failure to make a principal payment at
the final (but not any interim) fixed maturity (after giving effect to any
applicable grace period provided in such Indebtedness) and such defaulted
payment shall not have been made, waived or extended within 30 days of such payment
default;


 


(vi) any final judgment or order (not covered by insurance or a
third party indemnity pursuant to an executed written agreement) for the
payment of money in excess of $10.0 million in the aggregate for all such final
judgments or orders against all such Persons (treating any deductibles,
self-insurance or retention as not so covered) shall be rendered against the
Issuer, any Subsidiary Guarantor or any Significant Subsidiary and shall not be
paid or discharged, and there shall be any period of 30 consecutive days
following entry of the final judgment or order that causes the aggregate amount
for all such final judgments or orders outstanding and not paid or discharged
against all such Persons to exceed $10.0 million during which a stay of enforcement
of such final judgment or order, by reason of a pending appeal or otherwise,
shall not be in effect;


 


(vii) a court having jurisdiction in the premises enters a decree
or order for (A) relief in respect of the Issuer, any Subsidiary Guarantor
or any Significant Subsidiary in an involuntary case under any applicable
bankruptcy, insolvency or other similar law now or hereafter in effect, (B) appointment
of a receiver, liquidator, assignee, custodian, trustee, sequestrator or
similar official of the Issuer, any Subsidiary Guarantor or any Significant
Subsidiary or for all or substantially all of the property and assets of the
Issuer, any Subsidiary Guarantor or any Significant Subsidiary or (C) the
winding up or liquidation of the affairs of the Issuer, any Subsidiary
Guarantor or any Significant Subsidiary and, in each case, such decree or order
shall remain unstayed and in effect for a period of 30 consecutive days;


 


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(viii) the Issuer, any Subsidiary Guarantor or any Significant
Subsidiary (A) commences a voluntary case under any applicable bankruptcy,
insolvency or other similar law now or hereafter in effect, or consents to the
entry of an order for relief in an involuntary case under any such law, (B) consents
to the appointment of or taking possession by a receiver, liquidator, assignee,
custodian, trustee, sequestrator or similar official of the Issuer, any
Subsidiary Guarantor or any Significant Subsidiary or for all or substantially
all of the property and assets of the Issuer, any Subsidiary Guarantor or any
Significant Subsidiary or (C) effects any general assignment for the
benefit of creditors;


 


(ix) the Issuer or any Subsidiary Guarantor repudiates its
obligations under its Note Guarantee or, except as permitted by this Indenture,
any Note Guarantee is determined to be unenforceable or invalid or shall for
any reason cease to be in full force and effect; or


 


(x)  default by
the Issuer or any Subsidiary Guarantor in the performance of the Security
Documents which adversely affects the enforceability, validity, perfection or
priority of any Note Liens or which adversely affects the condition or value of
the Collateral, in each case, taken as a whole, in any material respect, (b) repudiation
or disaffirmation by the Issuer or any such Subsidiary Guarantor of its
obligations under any of the Security Documents or (c) the determination
in a judicial proceeding that all or any material portion of the Security
Documents, taken as a whole, are unenforceable or invalid, for any reason,
against the Issuer or any such Subsidiary Guarantor (which default,
repudiation, disaffirmation or determination is not rescinded, stayed, or
waived by the Persons having such authority pursuant to the Security Documents
or otherwise cured within 60 days after the Issuer receives written notice
thereof specifying such occurrence from the Trustee or the Holders of 25% or
more in aggregate principal amount of the Securities).


 


6.2  Acceleration.


 


If an Event of Default
(other than an Event of Default specified in clause (vii) or (viii) of
Section 6.1 above with respect to the Issuer) shall occur and be
continuing, the Trustee or the Holders of at least 25% in principal amount of
outstanding Securities may declare the principal of, premium, if any, and
accrued interest on all the Securities to be due and payable by notice in
writing to the Issuer (and the Trustee if given by the Holders) specifying the
relevant Event of Default and that it is a “notice of acceleration,” and
the same shall become immediately due and payable. If an Event of Default
specified in clause (vii) or (viii) of Section 6.1 above with
respect to the Issuer occurs and is continuing, then all unpaid principal of,
and premium, if any, and accrued and unpaid interest on all of the outstanding
Securities shall ipso  facto become and be
immediately due and payable without any declaration or other act on the part of
the Trustee or any Holder.


 


In the event of a
declaration of acceleration because an Event of Default set forth in clause (v) of
Section 6.1 has occurred and is continuing, such declaration of
acceleration shall be automatically rescinded and annulled if the event of
default triggering such Event of Default pursuant to clause (v) of Section 6.1
shall be remedied or cured by the Issuer, the relevant


 


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Subsidiary Guarantor or the relevant Significant Subsidiary or waived
by the holders of the relevant Indebtedness within 60 days after the
declaration of acceleration with respect thereto.


 


6.3  Other Remedies.


 


If an Event of
Default occurs and is continuing, the Trustee may pursue any available
remedy by proceeding at law or in equity to collect the payment of principal
of, premium, if any, or interest on the Securities or to enforce the
performance of any provision of the Securities or this Indenture. In addition,
the Trustee shall have the right to direct the Collateral Agent to exercise
remedies with respect to the Primary Collateral and, subject to the terms of
the Intercreditor Agreement, the Secondary Collateral.


 


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


 


6.4  Waiver of Past Defaults;
Rescission of Acceleration.


 


Subject to Sections 2.9,
6.2, 6.7 and 9.2, the Holders of at least a majority in principal amount of the
outstanding Securities by written notice to the Issuer and to the Trustee, may waive
all past defaults and rescind and annul a declaration of acceleration and its
consequences if (x) all existing Events of Default, other than the nonpayment
of the principal of, premium, if any, and accrued interest on the Securities
that have become due solely by such declaration of acceleration, have been
cured or waived and (y) the rescission would not conflict with any judgment or
decree of a court of competent jurisdiction.


 


6.5  Control by Majority.


 


The Holders of not less than
a majority in principal amount of the outstanding Securities 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.
Subject to Section 7.1, however, the Trustee may refuse to follow any
direction that conflicts with any law or this Indenture, that the Trustee
determines in good faith may be unduly prejudicial to the rights of
another Securityholder, or that may involve the Trustee in personal
liability and may take any other action that it deems proper that is not
inconsistent with any such direction received from the Securityholders.


 


6.6  Limitation on Suits.


 


A Securityholder may not
pursue any remedy with respect to this Indenture or the Securities unless:


 


(i) the Holder gives to the Trustee written notice of a continuing
Event of Default;


 


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


 


(iii) such Holder or Holders offer the Trustee indemnity
satisfactory to the Trustee against any costs, liability or expense;


 


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


 


(v) during such 60-day period the Holder or Holders of a majority
in principal amount of the outstanding Securities do not give the Trustee a
direction which, in the opinion of the Trustee, is inconsistent with the
request.


 


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


 


6.7  Rights of Holders to Receive Payment.


 


Notwithstanding any other
provision of this Indenture, the right of any Holder to receive payment of
principal of, premium, if any, and interest on a Security, on or after the
respective due dates expressed in such Security, or to bring suit for the
enforcement of any such payment on or after such respective dates, shall not be
impaired or affected without the consent of the Holder.


 


6.8  Collection Suit by Trustee.


 


If an Event of Default in
payment of principal, premium, if any, or interest specified in clause (i) or
(ii) of Section 6.1 occurs and is continuing, the Trustee may recover
judgment in its own name and as trustee of an express trust against the Issuer
or any other obligor on the Securities for the whole amount of principal,
premium, if any, and accrued interest and fees remaining unpaid, together with
interest on overdue principal and premium, if any, and, to the extent that
payment of such interest is lawful, interest on overdue installments of
interest, in each case at the rate per  annum borne by the Securities and such further amount as shall be sufficient
to cover the costs and expenses of collection, including the reasonable
compensation, expenses, disbursements and advances of the Trustee, its agents
and counsel, and any other amounts due to the Trustee under Section 7.7.


 


6.9  Trustee May File Proofs of Claim.


 


The Trustee may file
such proofs of claim and other papers or documents as may be necessary or
advisable in order to have the claims of the Trustee (including any claim for
the reasonable compensation, expenses, disbursements and advances of the
Trustee, its agents and counsel, and any other amounts due to the Trustee under
Section 7.7) and the Securityholders allowed in any judicial proceedings
relating to the Issuer, their creditors or their property and shall be entitled
and empowered to participate as a member, voting or otherwise, of any official
committee appointed for such matter, to collect and receive any monies or other
securities or property payable or deliverable upon the conversion or exchange
of the Securities or upon any such claims and to distribute the same, and any
Custodian in any such judicial proceedings is hereby authorized by each
Securityholder to make such payments to the Trustee and, in the event


 


71

















 


that the Trustee shall consent to the making of such
payments directly to the Securityholders, to pay to the Trustee any amount due
to it for the reasonable compensation, expenses, disbursements and advances of
the Trustee, its agent and counsel, and any other amounts due the Trustee under
Section 7.7. Nothing herein contained shall be deemed to authorize the
Trustee to authorize or consent to or accept or adopt on behalf of any
Securityholder any plan of reorganization, arrangement, adjustment or
composition affecting the Securities or the rights of any Holder thereof, or to
authorize the Trustee to vote in respect of the claim of any Securityholder in
any such proceeding.


 


6.10  Priorities.


 


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


 


First: to the
Trustee for amounts due under Section 7.7;


 


Second: to
Holders for interest accrued on the Securities, ratably, without preference or
priority of any kind, according to the amounts due and payable on the
Securities for interest;


 


Third: to
Holders for principal amounts and premium, if any, due and unpaid on the
Securities, ratably, without preference or priority of any kind, according to
the amounts due and payable on the Securities for principal; and


 


Fourth: to
the Issuer or, if applicable, the Subsidiary Guarantors as their respective
interests may appear.


 


The Trustee, upon prior
notice to the Issuer, may fix a record date and payment date for any
payment to Securityholders pursuant to this Section 6.10.


 


6.11  Undertaking for Costs.


 


In any suit for the
enforcement of any right or remedy under this Indenture or in any suit against
the Trustee for any action taken or omitted by it as 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 6.7,
or a suit by a Holder or Holders of more than 10% in principal amount of the
outstanding Securities.


 


6.12  Restoration of Rights and Remedies.


 


If the Trustee or any Holder
has instituted any proceeding to enforce any right or remedy under this
Indenture and such proceeding has been discontinued or abandoned for any
reason, or has been determined adversely to the Trustee or to such Holder,
then, and in every such case, subject to any determination in such proceeding,
the Issuer, the Trustee and the Holders shall be restored severally and
respectively to their former positions hereunder and thereafter all rights


 


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and remedies of the Issuer, Trustee and the Holders
shall continue as though no such proceeding had been instituted.


 


6.13  Rights and Remedies Cumulative.


 


Except as otherwise provided
with respect to the replacement or payment of mutilated, destroyed, lost or
wrongfully taken Securities in Section 2.7, no right or remedy herein
conferred upon or reserved to the Trustee or to the Holders is intended to be
exclusive of any other right or remedy, and every right and remedy shall, to
the extent permitted by law, be cumulative and in addition to every other right
and remedy given hereunder or now or hereafter existing at law or in equity or
otherwise. The assertion or employment of any right or remedy hereunder, or
otherwise, shall not prevent the concurrent assertion or employment of any
other appropriate right or remedy.


 


ARTICLE VII



TRUSTEE


 


7.1  Duties of Trustee.


 


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


 


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


 


(i) the Trustee need perform only those duties as are
specifically set forth herein or in the TIA and no duties, covenants,
responsibilities or obligations shall be implied in 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 (including Officers’ Certificates) or
opinions (including Opinions of Counsel) furnished to the Trustee and
conforming to the requirements of this Indenture. However, the Trustee shall
examine the certificates and opinions to determine whether or not they conform to
the requirements of this Indenture, but need not verify the contents thereof.


 


(c) Notwithstanding
anything to the contrary herein, the Trustee may 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 paragraph does not limit the effect of paragraph (b) of
this Section 7.1;


 


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


 


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(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 received
by it pursuant to Section 6.5.


 


(d) No provision of
this Indenture shall require the Trustee to expend or risk its own funds or
otherwise incur any financial liability in the performance of any of its duties
hereunder or to take or omit to take any action under this Indenture or take
any action at the request or direction of Holders if it shall have reasonable
grounds for believing that repayment of such funds is not assured to it.


 


(e) Every provision of
this Indenture that in any way relates to the Trustee is subject to this Section 7.1.


 


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


 


(g) In the absence of
bad faith, negligence or willful misconduct on the part of the Trustee,
the Trustee shall not be responsible for the application of any money by any
Paying Agent other than the Trustee.


 


(h) If the Trustee
shall receive conflicting or inconsistent requests from two or more groups of
Holders, each representing less than a majority of the aggregate principal
amount of Securities then outstanding, the Trustee in its sole discretion may determine
what action, if any, shall be taken, notwithstanding any other provision of
this Indenture.


 


7.2  Rights of Trustee.


 


Subject to Section 7.1:


 


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


 


(b) Before the Trustee acts or refrains from acting, it may require
an Officers’ Certificate and an Opinion of Counsel, which shall conform to
the provisions of Section 13.5. The Trustee shall not be liable for any
action it takes or omits to take in good faith in reliance on such certificate
or opinion.


 


(c) The Trustee may act through its attorneys and agents and
shall not be responsible for the misconduct or negligence of any agent (other
than an agent who is an employee of the Trustee) appointed with due care.


 


(d) The Trustee shall not be liable for any action it takes or
omits to take in good faith which it reasonably believes to be authorized or
within its rights or powers.


 


(e) The Trustee may consult with counsel and the advice or
opinion of such counsel as to matters of law shall be full and complete
authorization and protection from


 


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liability
in respect of any action taken, omitted or suffered by it hereunder in good
faith and in accordance with the advice or opinion of such counsel.


 


(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, order or
direction of any of the Holders pursuant to the provisions of this Indenture,
unless such Holders shall have offered to the Trustee reasonable security or
indemnity against the costs, expenses and liabilities which may be
incurred therein or thereby.


 


(g) The Trustee shall not be bound to make any investigation into
the facts or matters stated in any resolution, certificate (including any
Officers’ Certificate), statement, instrument, opinion (including any Opinion
of Counsel), notice, request, direction, consent, order, bond, debenture, or
other paper or document, but the Trustee, in its discretion, may make such
further inquiry or investigation into such facts or matters as it may see
fit and, if the Trustee shall determine to make such further inquiry or
investigation, it shall be entitled, upon reasonable notice to the Issuer, to
examine the books, records, and premises of the Issuer, personally or by agent
or attorney.


 


(h) The Trustee shall not be required to give any bond or surety
in respect of the performance of its powers and duties hereunder.


 


(i) The permissive rights of the Trustee to do things enumerated
in this Indenture shall not be construed as duties.


 


(j)  The Trustee
shall not be charged with knowledge of any Default or Event of Default, of the
identity of any Restricted Subsidiary or the existence of any Change of
Control, Asset Sale, Event of Loss or event giving rise to a Special Offer to
Purchase unless either (i) a Responsible Officer shall have Actual
Knowledge thereof or (ii) the Trustee shall have received written notice
thereof from either of the Issuer or any Holder.


 


(k)  Delivery of
reports, information and documents to the Trustee under Section 4.10 is
for informational purposes only and the Trustee’s receipt of the foregoing
shall not constitute constructive notice of any information contained therein
or determinable from information contained therein, including the Issuer’s
compliance with any of the covenants hereunder.


 


(l)  Except as set
forth in paragraph 1 of the Securities, the Trustee shall not be responsible
for the computation of any interest payments or redemption amounts payable with
respect to the Securities.


 


(m)The Trustee shall not be responsible for the filing of original or
continuation financing statements or the recordation, amendment, or other filing
of any security interests, liens, financing statements, or other similar
documents, nor of the contents thereof.


 


(n)  In no event
shall the Trustee be liable for any failure or delay in the performance of its
obligations hereunder because of circumstances beyond the Trustee’s control,
including, but not limited to, acts of God, flood, war (whether declared or


 


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undeclared),
terrorism, fire, riot, embargo, government action, including any laws, ordinances,
regulations, governmental action or the like which delay, restrict or prohibit
the providing of the services contemplated by this Indenture.


 


7.3  Individual Rights of Trustee.


 


The Trustee in its
individual or any other capacity may become the owner or pledgee of
Securities and may otherwise deal with the Issuer, its Subsidiaries
(including any Guarantors) or their respective Affiliates with the same rights
it would have if it were not Trustee. Any Agent may do the same with like
rights. However, the Trustee shall comply with Sections 7.10 and 7.11.


 


7.4  Trustee’s Disclaimer.


 


The Trustee shall not be
responsible for and makes no representation as to the validity or adequacy of
this Indenture, any Subsidiary Guarantee, the Security Documents, the Collateral,
or the Securities, it shall not be accountable for the Issuer’s use of the
proceeds from the Securities, and it shall not be responsible for any statement
of the Issuer in this Indenture or any document issued in connection with the
sale of Securities or any statement in the Securities other than the Trustee’s
certificate of authentication. The Trustee makes no representations with
respect to the effectiveness or adequacy of this Indenture.


 


7.5  Notice of Default.


 


If a Default or an Event of
Default occurs and is continuing and the Trustee has Actual Knowledge thereof
based on receipt of actual notice of such Default or Event of Default, the
Trustee shall mail to each Securityholder notice of the uncured Default or
Event of Default within 90 days after such Default or Event of Default occurs.
Except in the case of a Default or an Event of Default in payment of principal
of, premium, if any, or interest on, any Security including an accelerated
payment and the failure to make payment on the relevant Payment Date pursuant
to an Offer to Purchase resulting from a Change of Control, a Special Offer to
Purchase or an Event of Loss Offer to Purchase, the Trustee may withhold
the notice if and so long as the Board of Directors, the executive committee,
or a trust committee of directors and/or Responsible Officers, of the Trustee
in good faith determines that withholding the notice is in the interest of the
Securityholders.


 


7.6  Reports by Trustee to Holders.


 


Within 60 days after each January 1,
beginning with the first January 1, 2006, the Trustee shall, to the extent
that any of the events described in TIA § 313(a) occurred within the
previous twelve months, but not otherwise, mail to each Securityholder a brief
report dated as of such date that complies with TIA § 313(a). The Trustee
also shall comply with TIA §§ 313(b), 313(c) and 313(d).


 


A copy of each report at the
time of its mailing to Securityholders shall be mailed to the Issuer and filed
with the Commission and each securities exchange, if any, on which the
Securities are listed.


 


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The Issuer shall notify the
Trustee if the Securities become listed on any securities exchange or of any
delisting thereof and the Trustee shall comply with TIA § 313(d).


 


7.7  Compensation and Indemnity.


 


The Issuer shall pay to the
Trustee, from time to time, reasonable compensation for its services hereunder.
The Trustee’s compensation shall not be limited by any law on compensation of a
trustee of an express trust. The Issuer shall reimburse the Trustee upon
request for all reasonable disbursements, expenses and advances (including
reasonable fees and expenses of counsel) incurred or made by it in addition to
the compensation for its services, except any such disbursements, expenses and
advances as may be attributable to the Trustee’s negligence, bad faith or
willful misconduct. Such expenses shall include the reasonable fees and
expenses of the Trustee’s agents and counsel.


 


The Issuer and each of the
Subsidiary Guarantors shall indemnify the Trustee and its agents, employees,
officers, stockholders and directors for, and hold them harmless against, any
loss, liability or expense (including reasonable attorneys’ fees and expenses)
incurred by them except for such actions to the extent caused by any
negligence, bad faith or willful misconduct on their part, arising out of or in
connection with the acceptance or administration of this trust including the
cost and expense of enforcing this Indenture and the Securities against the
Issuer or the Holders (including this Section 7.7) including the
reasonable costs and expenses of defending themselves against or investigating
any claim or liability in connection with the exercise or performance of any of
the Trustee’s rights, powers or duties hereunder. The Trustee shall notify the
Issuer and the Subsidiary Guarantors promptly of any claim asserted against the
Trustee or any of its agents, employees, officers, stockholders and directors
for which it may seek indemnity, provided that any failure to so notify
the Issuer or any of the Subsidiary Guarantors shall not relieve the Issuer of
its indemnity obligations hereunder. The Issuer and the Subsidiary Guarantors
may, subject to the approval of the Trustee, defend the claim and the Trustee
shall cooperate in the defense. The Trustee and its agents, employees, officers,
stockholders and directors subject to the claim may have separate counsel
and the Issuer and the Subsidiary Guarantors shall pay the reasonable fees and
expenses of such counsel; provided, however, that neither the
Issuer nor any the Subsidiary Guarantors shall be required to pay such fees and
expenses if, subject to the approval of the Trustee, they assume the Trustee’s
defense and there is no conflict of interest between the Issuer, the Subsidiary
Guarantors and the Trustee and its agents, employees, officers, stockholders
and directors subject to the claim in connection with such defense as
reasonably determined by the Trustee. The Issuer and the Subsidiary Guarantors
need not pay for any settlement made without its written consent, which consent
shall not be unreasonably withheld, delayed or conditioned. The Issuer and the
Subsidiary Guarantors need not reimburse any expense or indemnify against any
loss or liability to the extent incurred by the Trustee through its negligence,
bad faith or willful misconduct.


 


To secure the Issuer’s and
the Subsidiary Guarantors’ payment obligations in this Section 7.7, the
Trustee shall have a senior claim and Lien prior to the Securities against all
money or property held or collected by the Trustee, in its capacity as Trustee.


 


When the Trustee incurs
expenses or renders services after an Event of Default specified in clause (vii) or
(viii) of Section 6.1 occurs, such expenses and the compensation for
such


 


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services are intended to constitute expenses of
administration under any Bankruptcy Law and shall be paid to the extent allowed
under any Bankruptcy Law.


 


Notwithstanding any other
provision in this Indenture, the foregoing provisions of this Section 7.7
shall survive the satisfaction and discharge of this Indenture or the
appointment of a successor Trustee.


 


7.8  Replacement of Trustee.


 


The Trustee may resign
at any time by so notifying the Issuer in writing. The Holders of a majority in
principal amount of the outstanding Securities may remove the Trustee by
so notifying the Issuer and the Trustee and may appoint a successor
Trustee. The Issuer may remove the Trustee if:


 


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


 


(ii) the Trustee is adjudged bankrupt or insolvent;


 


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


 


(iv) the Trustee becomes incapable of acting.


 


If the Trustee resigns or is
removed or if a vacancy exists in the office of Trustee for any reason, the Issuer
shall notify each Holder of such event and shall promptly appoint a successor
Trustee. Within one year after the successor Trustee takes office, the Holders
of a majority in principal amount of the Securities may appoint a
successor Trustee to replace the successor Trustee appointed by the Issuer.


 


A successor Trustee shall
deliver a written acceptance of its appointment to the retiring Trustee and to
the Issuer. Immediately after that, the retiring Trustee shall transfer, after
payment of all sums then owing to the Trustee pursuant to Section 7.7, all
property held by it as Trustee to the successor Trustee, subject to the Lien
provided in Section 7.7, 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. A successor
Trustee shall mail notice of its succession to each Securityholder.


 


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


 


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


 


Notwithstanding replacement
of the Trustee pursuant to this Section 7.8, the Issuer’s obligations
under Section 7.7 shall continue for the benefit of the retiring Trustee.


 


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7.9  Successor Trustee by Merger, Etc.


 


If the Trustee consolidates
with, merges or converts into, or transfers all or substantially all of its
corporate trust business to, another corporation, the resulting, surviving or
transferee corporation without any further act shall, if such resulting,
surviving or transferee corporation is otherwise eligible hereunder, be the
successor Trustee; provided that such corporation shall be otherwise
qualified and eligible under this Article VII.


 


7.10  Eligibility; Disqualification.


 


This Indenture shall always
have a Trustee who satisfies the requirement of TIA §§ 310(a)(1), 310(a)(2) and
310(a)(5). The Trustee shall have a combined capital and surplus of at least
$50,000,000 as set forth in its most recent published annual report of
condition. In addition, if the Trustee is a corporation included in a bank
holding company system, the Trustee, independently of the bank holding company,
shall meet the capital requirements of TIA § 310(a)(2). The Trustee shall
comply with TIA § 310(b); provided, however, that there
shall be excluded from the operation of TIA § 310(b)(1) any indenture
or indentures under which other securities, or certificates of interest or
participation in other securities, of the Issuer are outstanding, if the
requirements for such exclusion set forth in TIA § 310(b)(1) are met.
The provisions of TIA § 310 shall apply to the Issuer and any other
obligor of the Securities.


 


7.11  Preferential Collection of
Claims Against the Issuer.


 


The Trustee, in its capacity
as Trustee hereunder, shall comply with TIA § 311(a), excluding any
creditor relationship listed in TIA § 311(b). A Trustee who has resigned
or been removed shall be subject to TIA § 311(a) to the extent
indicated.


 


7.12  Direction to Trustee.


 


The Trustee is directed to
execute, deliver and perform its obligations under the Security Documents
and the Intercreditor Agreement.


 


ARTICLE VIII


 


DISCHARGE
OF INDENTURE; DEFEASANCE


 


8.1  Termination of the Issuer’s
Obligations.


 


The Issuer and each
Subsidiary Guarantor may terminate their obligations under the Securities
and this Indenture, except those obligations referred to in the penultimate
paragraph of this Section 8.1, if all Securities previously authenticated
and delivered (other than destroyed, lost or stolen Securities which have been
replaced or paid or Securities for whose payment U.S. Legal Tender in
immediately available funds has theretofore been deposited with the Trustee or
the Paying Agent in trust or segregated and held in trust by the Issuer and
thereafter repaid to the Issuer, as provided in Section 8.5) have been
delivered to the Trustee for cancellation and the Issuer have paid all sums
payable by them hereunder, or if:


 


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(i) either (i) pursuant to Article III, the Issuer shall
have given notice to the Trustee and mailed a notice of redemption to each
Holder of the redemption of all of the Securities in accordance with the
provisions hereof or (ii) all Securities have otherwise become due and
payable hereunder or shall become due and payable hereunder within one year;


 


(ii) the Issuer shall have irrevocably deposited or caused to be
deposited with the Trustee or a trustee satisfactory to the Trustee, under the
terms of an irrevocable trust agreement in form and substance satisfactory
to the Trustee, as trust funds in trust solely for the benefit of the Holders
for that purpose, U.S. Legal Tender in immediately available funds (if
applicable, in combination with Qualified Interest Rate Agreements) in such
amount (net of any amounts payable by the trust pursuant to any such Qualified
Interest Rate Agreements) as is sufficient without consideration of
reinvestment of such interest, to pay principal of, premium, if any, and
interest on any Securities not previously delivered to the Trustee for
cancellation to maturity or redemption; provided that the Trustee shall
have been irrevocably instructed to apply such U.S. Legal Tender to the payment
of said principal, premium, if any, and interest with respect to the
Securities;


 


(iii) the Issuer shall have paid all other sums payable by it
hereunder; and


 


(iv) the Issuer shall have delivered to the Trustee an Officers’
Certificate and an Opinion of Counsel, each stating that all conditions
precedent providing for or relating to the termination of the Issuer’s
obligations under the Securities and this Indenture have been complied with and
a certificate of the Issuer’s independent accountants (who shall be a firm of
established national reputation) stating that the amount deposited with the
Trustee is sufficient to pay principal of, premium, if any, and interest on the
outstanding Securities to maturity or redemption.


 


Subject to the next sentence
and notwithstanding the foregoing paragraph, the Issuer’s obligations in
Sections 2.5, 2.6, 2.7, 2.8, 4.1, 4.2, 7.7, 8.5 and 8.6 shall survive until the
Securities are no longer outstanding pursuant to the last paragraph of Section 2.8.
After the Securities are no longer outstanding, the Issuer’s obligations in
Sections 7.7, 8.5 and 8.6 shall survive.


 


After such delivery or
irrevocable deposit, the Trustee upon request shall acknowledge in writing the
discharge of the Issuer’s obligations under the Securities and this Indenture
except for those surviving obligations specified above.


 


8.2 Legal Defeasance and
Covenant Defeasance.


 


(a) The Issuer may, at
its option by Board Resolutions of the Boards of Directors of the Issuer, at
any time, elect to have either paragraph (b) or (c) below applied to
all outstanding Securities upon compliance with the conditions set forth in Section 8.3.


 


(b) Upon the Issuer’s
exercise under paragraph (a) hereof of the option applicable to this
paragraph (b), the Issuer and each Subsidiary Guarantor shall, subject to the
satisfaction of the conditions set forth in Section 8.3 and the conditions
set forth in this Section 8.2, be deemed to have been discharged from their
respective obligations with respect to all outstanding


 


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Securities and the corresponding Subsidiary
Guarantees on the date that is 123 days after the date of the deposit referred
to in Section 8.3(i) (hereinafter, “Legal Defeasance”). For
this purpose, Legal Defeasance means that the Issuer shall be deemed to have
paid and discharged the entire Indebtedness represented by the outstanding
Securities, which shall thereafter be deemed to be “outstanding” only
for the purposes of Section 8.4 and the other Sections of this Indenture
referred to in (i) and (ii) below, and to have satisfied all its
other obligations under such Securities and this Indenture (and the Trustee, on
demand of and at the expense of the Issuer, shall execute proper instruments
acknowledging the same), and Holders of the Securities and any amounts
deposited under Section 8.3 shall cease to be subject to any obligations
to, or the rights of, any holder of First Priority Lien Obligations under Article X
or otherwise, except for the following provisions, which shall survive until
otherwise terminated or discharged hereunder: (i) the rights of Holders of
outstanding Securities to receive solely from the trust fund described in Section 8.4,
and as more fully set forth in such Section, payments in respect of the
principal of, premium, if any, and interest on such Securities when such
payments are due, (ii) the obligations with respect to such Securities
under Article II and Section 4.2, (iii) the rights, powers,
trusts, duties and immunities of the Trustee hereunder and the obligations in
connection therewith and (iv) this Article VIII. Subject to
compliance with this Article VIII, the Issuer may exercise their
option under this paragraph (b) notwithstanding the prior exercise of its
option under paragraph (c) hereof.


 


(c) Upon the Issuer’s
exercise under paragraph (a) hereof of the option applicable to this
paragraph (c), the Issuer and each Subsidiary Guarantor shall, subject to the
satisfaction of the conditions set forth in Section 8.3 and the conditions
set forth in this Section 8.2, be released from their obligations, if any,
under the covenants contained in Sections 4.3 and 4.4 and Sections 4.12 through
4.23 and clause (ii) of Section 5.1(c) with respect to the
outstanding Securities and the corresponding Subsidiary Guarantee on and after
the date the conditions set forth below are satisfied (hereinafter, “Covenant
Defeasance”), and the Securities shall thereafter be deemed not “outstanding”
for the purposes of any direction, waiver, consent or declaration or act of
Holders (and the consequences of any thereof) in connection with such
covenants, but shall continue to be deemed “outstanding” for all other
purposes hereunder (it being understood that such Securities shall not be
deemed outstanding for accounting purposes) and Holders of the Securities and
any amounts deposited under Section 8.3 shall cease to be subject to any
obligations to, or the rights of, any holder of First Priority Lien Obligations
under Article X or otherwise. For this purpose, such Covenant Defeasance
means that, with respect to the outstanding Securities, the Issuer may omit
to comply with and shall have no liability in respect of any term, condition or
limitation set forth in any such covenant, whether directly or indirectly, by
reason of any reference elsewhere herein to any such covenant or by reason of
any reference in any such covenant to any other provision herein or in any
other document and such omission to comply shall not constitute a Default or an
Event of Default under Section 6.1(iii) (to the extent pertaining to
a default under or breach of the provisions of clause (ii) of Section 5.1(c)),
6.1(iv), 6.1(v) or 6.1(vi), but, except as specified above, the remainder
of this Indenture and such Securities shall be unaffected thereby.


 


8.3 Conditions to Legal
Defeasance or Covenant Defeasance.


 


The following shall be the
conditions to the application of either Section 8.2(b) or 8.2(c) to
the outstanding Securities:


 


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In order to exercise either
Legal Defeasance or Covenant Defeasance:


 


(i) the Issuer shall have deposited with the Trustee, in trust,
money and /or U.S. Government Obligations (if applicable, in combination with
Qualified Interest Rate Agreements) that through the payment of interest and
principal (in respect of such U.S. Government Obligations) or other amounts (in
respect of such Qualified Interest Rate Agreements) in accordance with their
terms will provide money (net of any amounts payable by the trust pursuant to
any such Qualified Interest Rate Agreements) in an amount sufficient to pay the
principal of, premium, if any, and accrued interest on the Notes on the Stated
Maturity of such payments in accordance with the terms of this Indenture and
the Notes;


 


(ii) in the case of an election under Section 8.2(b), the
Issuer shall have delivered to the Trustee:


 


(A) either (x) an Opinion of Counsel to the effect that Holders
will not recognize income, gain or loss for federal income tax purposes as a
result of the Issuer’s exercise of its option under Section 8.2(b) and
will be subject to federal income tax on the same amount and in the same manner
and at the same times as would have been the case if such deposit, defeasance
and discharge had not occurred, which Opinion of Counsel must be based upon
(and accompanied by a copy of) a ruling of the Internal Revenue Service to the
same effect unless there has been a change in applicable federal income tax law
after the Closing Date such that a ruling is no longer required or (y) a ruling
directed to the Trustee received from the Internal Revenue Service to the same
effect as the aforementioned Opinion of Counsel; and


 


(B) an Opinion of Counsel to the effect that, subject to customary
assumptions and exclusions, (x) the creation of the defeasance trust does not
violate the Investment Company Act of 1940 and after the passage of 123 days
following the deposit, the trust fund will not be subject to the effect of Section 547
of the Bankruptcy Law or Section 15 of the New York Debtor and Creditor
Law and (y) the Qualified Interest Rate Agreement, if any, referred to in
clause (i) above is the legal, valid and binding obligation of the bank or
other financial institution, enforceable against it in accordance with its
terms;


 


(iii) in the case of an election under Section 8.2(c), the
Issuer shall have delivered to the Trustee (A) an Opinion of Counsel to
the effect that, subject to customary assumptions and exclusions, (x) the
creation of the defeasance trust does not violate the Investment Company Act of
1940 and after the passage of 123 days following the deposit, the trust fund
will not be subject to the effect of Section 547 of the Bankruptcy Law or Section 15
of the New York Debtor and Creditor Law and (y) the Qualified Interest Rate
Agreement, if any, referred to in clause (i) above is the legal, valid and
binding obligation of the bank or other financial institution, enforceable
against it in accordance with its terms, and (B) an Opinion of Counsel to
the effect that, among other


 


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things,
the Holders will not recognize income, gain or loss for federal income tax
purposes as a result of the Issuer’s exercise of its option under Section 8.2(c) and
will be subject to federal income tax on the same amount and in the same manner
and at the same times as would have been the case if such deposit and
defeasance had not occurred;


 


(iv) immediately after giving effect to such deposit on a pro
forma basis, no Event of Default, or event that after the giving of notice or
lapse of time or both would become an Event of Default, shall have occurred and
be continuing on the date of such deposit or during the period ending on the
123rd day after the date of such deposit, and such deposit shall not result in
a breach or violation of, or constitute a default under, any other agreement or
instrument to which the Issuer or any of its Subsidiaries is a party or by
which the Issuer or any of its Subsidiaries is bound;


 


(v) if at such time the Securities are listed on a national
securities exchange, the Issuer shall have delivered to the Trustee an Opinion
of Counsel to the effect that the Notes will not be delisted as a result of
such deposit, defeasance and discharge;


 


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


 


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


 


Notwithstanding the
foregoing, the Opinions of Counsel required by clause (ii) above of this Section 8.3
need not be delivered if all Securities not theretofore delivered to the
Trustee for cancellation (i) have become due and payable, (ii) will
become due and payable on the Maturity Date within one year or (iii) are
to be called for redemption within one year under arrangements satisfactory to
the Trustee for the giving of notice of redemption by the Trustee in the name,
and at the expense, of the Issuer.


 


8.4 Application of Trust Money.


 


The Trustee or Paying Agent
shall hold in trust U.S. Legal Tender or U.S. Government Obligations deposited
with it pursuant to this Article VIII, and shall apply the deposited U.S.
Legal Tender and the money from U.S. Government Obligations in accordance with
this Indenture to the payment of principal of, premium, if any, and interest on
the Securities.


 


The Issuer shall pay and
indemnify the Trustee against any tax, fee or other charge imposed on or
assessed against the U.S. Legal Tender or U.S. Government Obligations deposited
pursuant to Section 8.3 hereof or the principal, premium, if any, and
interest received in respect thereof other than any such tax, fee or other
charge which by law is for the account of the Holders of the outstanding
Securities.


 


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Anything in this Article VIII
to the contrary notwithstanding, the Trustee shall deliver or pay to the Issuer
from time to time upon the Issuer’s request any U.S. Legal Tender or U.S.
Government Obligations held by it as provided in Section 8.3 which, in the
opinion of a nationally recognized firm of independent public accountants
expressed in a written certification thereof delivered to the Trustee, are in
excess of the amount thereof that would then be required to be deposited to
effect an equivalent Legal Defeasance or Covenant Defeasance.


 


8.5 Repayment to the Issuer.


 


The Trustee and the Paying
Agent shall pay to the Issuer upon request any money held by them for the
payment of principal, premium, if any, or interest that remains unclaimed for
two years; provided that the Trustee or such Paying Agent, before being
required to make any payment, may at the expense of the Issuer cause to be
published once in a newspaper of general circulation in The City of New York or
mail to each Holder entitled to such money notice that such money remains
unclaimed and that after a date specified therein which shall be at least 30
days from the date of such publication or mailing any unclaimed balance of such
money then remaining shall be repaid to the Issuer. After payment to the
Issuer, Holders entitled to such money must look to the Issuer for payment as
general creditors unless an applicable law designates another Person.


 


8.6 Reinstatement.


 


If the Trustee or Paying
Agent is unable to apply any U.S. Legal Tender or U.S. Government Obligations
in accordance with this Article VIII 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 Issuer’s
obligations under this Indenture and the Securities shall be revived and reinstated
as though no deposit had occurred pursuant to this Article VIII until such
time as the Trustee or Paying Agent is permitted to apply all such U.S. Legal
Tender or U.S. Government Obligations in accordance with this Article VIII;
provided that if the Issuer has made any payment of interest on,
premium, if any, or principal of any Securities because of the reinstatement of
its obligations, the Issuer shall be subrogated to the rights of the Holders of
such Securities to receive such payment from the U.S. Legal Tender or U.S.
Government Obligations held by the Trustee or Paying Agent.


 


ARTICLE IX


 


AMENDMENTS,
SUPPLEMENTS AND WAIVERS


 


9.1 Without Consent of Holders.


 


The Issuer, the Guarantors
and the Trustee, together, may amend or supplement this Indenture, the
Securities, any Subsidiary Guarantee or the Security Documents, without notice
to or consent of any Securityholder, to:


 


(i) cure any ambiguity, defect or inconsistency in this Indenture;


 


(ii) comply with the provisions described under Article V or Section 4.15;


 


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(iii) comply with any requirements of the Commission in connection
with the qualification of this Indenture under the TIA;


 


(iv) evidence and provide for the acceptance of appointment by a
successor Trustee;


 


(v) add a Subsidiary Guarantor;


 


(vi) add any additional asset as Collateral;


 


(vii) release any Collateral from the Note Liens when permitted or
required under this Indenture or the Security Documents;


 


(viii) reflect the grant of Liens on the Collateral for the
benefit of an additional secured party, to the extent such indebtedness and the
Lien securing such indebtedness is permitted by the terms of this Indenture and
the Security Documents;


 


(ix) make any change that, in the good faith opinion of the Board
of Directors, does not materially and adversely affect the rights of any
Holder;


 


(x) provide for the issuance of Additional Securities in accordance
with the terms of Indenture; or


 


(xi) conform this Indenture or the Security Documents to the section entitled
“Description of the Notes” in the Offering Memorandum;


 


provided that the Issuer has delivered to the Trustee an Opinion of Counsel and
an Officers’ Certificate, each stating that such amendment or supplement
complies with the provisions of this Section 9.1.


 


9.2 With Consent of Holders.


 


Subject to Section 6.7,
modifications and amendments of this Indenture and the Security Documents may be
made by the Issuer, the Subsidiary Guarantors or the Trustee with the consent
of the Holders of not less than a majority in aggregate principal amount of the
outstanding Securities; provided, however, that no such
modification or amendment may, without the consent of each Holder affected
thereby, to:


 


(1) change the Stated Maturity of the principal of, or any
installment of interest on, any Note;


 


(2) reduce the principal amount of, or premium, if any, or
interest on, any Note;


 


(3) change the optional redemption dates or optional redemption
prices of the Securities from those stated in the Securities or waive or modify
any of the provisions set forth under Section 3.7, 4.23 or 4.24 or, to the
extent that it relates to the disposition of any Primary Collateral, Section 4.18;


 


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(4) change the place or currency of payment of principal of, or
premium, if any, or interest on, any Note;


 


(5) impair the right to institute suit for the enforcement of any
payment on or after the Stated Maturity (or, in the case of a redemption, on or
after the Redemption Date) of any Note;


 


(6) waive a default in the payment of principal of, premium, if
any, or interest on the Securities;


 


(7) release any Subsidiary Guarantor from its Note Guarantee,
except as provided in this Indenture;


 


(8) amend or modify any of the provisions of this Indenture in any
manner which subordinates the Securities issued thereunder in right of payment
to any other Indebtedness of the Issuer or which subordinates any Note
Guarantee in right of payment to any other Indebtedness of the guarantor
issuing any such Note Guarantee; or


 


(9) reduce the percentage or aggregate principal amount of
outstanding Securities the consent of whose Holders is necessary for waiver of
compliance with certain provisions of this Indenture or the Security Documents
or for waiver of certain defaults.


 


Without the consent of the
holders of at least two-thirds in aggregate principal amount of the Securities
then outstanding, no amendment may release from the Lien of the Security
Documents any Collateral or modify any provisions of the Security Documents
otherwise than in accordance with the terms of this Indenture or the Security
Documents.


 


9.3 [Intentionally Omitted].


 


9.4 Compliance with TIA.


 


From the date on which this
Indenture is qualified under the TIA, every amendment, waiver or supplement of
this Indenture or the Securities or any Subsidiary Guarantee shall comply with
the TIA as then in effect.


 


9.5 Revocation and Effect of Consents.


 


Until an amendment, waiver
or supplement becomes effective, a consent to it by a Holder is a continuing
consent by the Holder and every subsequent Holder of a Security or portion of a
Security that evidences the same debt as the consenting Holder’s Security, even
if notation of the consent is not made on any Security. However, any such
Holder or subsequent Holder may revoke the consent as to his Security or
portion of his Security by notice to the Trustee or the Issuer received before
the date on which the Trustee receives an Officers’ Certificate certifying that
the Holders of the requisite principal amount of Securities have consented (and
not theretofore revoked such consent) to the amendment, supplement or waiver.


 


The Issuer may, but shall
not be obligated to, fix a record date for the purpose of determining the
Holders entitled to consent to any amendment, supplement or waiver. If a record
date is fixed, then notwithstanding the last sentence of the immediately
preceding


 


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paragraph, those Persons who were Holders at such record
date (or their duly designated proxies), and only those Persons, shall be
entitled to revoke any consent previously given, whether or not such Persons
continue to be Holders after such record date. No such consent shall be valid
or effective for more than 90 days after such record date.


 


After an amendment,
supplement or waiver becomes effective, it shall bind every Securityholder,
unless it makes a change described in any of clauses (i) through (vii) of
Section 9.2, in which case, the amendment, supplement or waiver shall bind
only each Holder of a Security who has consented to it and every subsequent
Holder of a Security or portion of a Security that evidences the same debt as
the consenting Holder’s Security; provided that any such waiver shall
not impair or affect the right of any Holder to receive payment of principal
of, premium, if any, and interest on a Security, on or after the respective due
dates expressed in such Security, or to bring suit for the enforcement of any
such payment on or after such respective dates without the consent of such
Holder.


 


9.6 Notation on or Exchange of Securities.


 


If an amendment, supplement
or waiver changes the terms of a Security, the Issuer may require the
Holder of the Security to deliver it to the Trustee. The Issuer shall provide
the Trustee with an appropriate notation on the Security about the changed
terms and cause the Trustee to return it to the Holder at the Issuer’s expense.
Alternatively, if the Issuer or the Trustee so determines, the Issuer in exchange
for the Security shall issue and the Trustee shall authenticate a new Security
that reflects the changed terms. Failure to make the appropriate notation or
issue a new Security shall not affect the validity and effect of such
amendment, supplement or waiver.


 


9.7 Trustee to Sign Amendments, Etc.


 


The Trustee shall execute
any amendment, supplement or waiver authorized pursuant to this Article IX;
provided that the Trustee may, but shall not be obligated to, execute
any such amendment, supplement or waiver which affects the Trustee’s own
rights, duties or immunities under this Indenture. The Trustee shall be
entitled to receive, and shall be fully protected in relying upon, an Opinion
of Counsel and an Officers’ Certificate each complying with Sections 13.4 and
13.5 and stating that the execution of any amendment, supplement or waiver
authorized pursuant to this Article IX is authorized or permitted by this
Indenture and constitutes the legal, valid and binding obligations of the
Issuer and the Subsidiary Guarantors, if applicable, enforceable in accordance
with its terms. Such Opinion of Counsel shall be at the expense of the Issuer.


 


ARTICLE X




COLLATERAL


 


10.1 Rights of the Trustee.


 


(a) The Trustee shall
act as Collateral Agent and, as Collateral Agent, shall be entitled to the
protections, immunities and indemnities afforded the Trustee.


 


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(b) The Collateral
Agent is authorized and empowered to appoint one or more co-Collateral Agents
as it deems necessary or appropriate.


 


(c) Neither the Trustee
nor the Collateral Agent nor any of their respective officers, directors,
employees, attorneys or agents shall be responsible for the existence,
genuineness, value or protection of any Collateral, for the legality,
enforceability, effectiveness or sufficiency of the Security Documents, for the
creation, perfection, priority, sufficiency or protection of any Note Lien, or
for any failure to demand, collect, foreclose or realize upon or otherwise
enforce any of the Note Liens or Security Documents or for any delay in doing
so.


 


(d) The Collateral
Agent shall be subject to such directions as may be given it by the
Trustee from time to time as required or permitted by this Indenture. Except as
directed by the Trustee and as required or permitted by this Indenture or the
Security Documents, the Collateral Agent shall not be obligated: 


 


	
   

  	
  (i)

  	
  to act upon directions purported to be delivered to it by any other
  Person;

  
	
   

  	
   

  	
   

  
	
   

  	
  (ii)

  	
  to foreclose upon or otherwise enforce any Note Lien; or

  
	
   

  	
   

  	
   

  
	
   

  	
  (iii)

  	
  to take any other action whatsoever with regard to any or all of the
  Note Liens, Security Documents or Collateral.

  



 


(e) The Collateral
Agent shall be accountable only for amounts that it actually receives as a
result of the enforcement of the Note Liens or Security Documents.


 


(f) In acting as
Collateral Agent or co-Collateral Agent, the Collateral Agent and each
co-Collateral Agent may rely upon and enforce each and all of the rights,
powers, immunities, indemnities and benefits of the Trustee under Article Seven.


 


(g) Each successor
Trustee shall become the successor Collateral Agent as and when the successor
Trustee becomes the Trustee.


 


10.2 Collateral and Security
Documents.


 


(a) In order to secure
the due and punctual payment of the Securities, the Issuer has entered into the
Security Documents to create the Note Liens on the Collateral in accordance
with the terms thereof. In the event of a conflict between the terms of this
Indenture and the Security Documents, the Security Documents shall control.


 


(b) Each Holder of a
Security, by accepting such Security, (i) agrees to all of the terms and
provisions of the Security Documents, (ii) acknowledges that all First
Priority Lien Obligations include, without limitation, any interest that
accrues after the commencement of any case, proceeding or other action relating
to the bankruptcy, insolvency, reorganization or similar proceeding of the
Issuer or any of its Subsidiaries at the contractual rate of interest provided
for in the respective documentation for such First Priority Lien Obligations,
whether or not a claim for such post-petition interest is allowed in any such
proceeding or under applicable law, and (iii) authorizes the Trustee and
the Collateral Agent to enter into the Security Documents and, unless


 


88

















 


violative of the provisions hereof and thereof, to
execute any and all documents, amendments, waivers, consents, releases or other
instruments required (or authorized) to be executed by it pursuant to the terms
thereof.


 


(c) If the Issuer or
any Subsidiary Guarantor grants a First Priority Lien on any of its property or
assets (including any Capital Stock) for the benefit of any holders of First
Priority Lien Obligations (including any lenders or representative of the
lenders under the Credit Agreement), it shall also simultaneously grant a
Second Priority Lien in such property or assets (including Capital Stock) in
favor of the Collateral Agent for the benefit of the Trustee and the Holders of
the Securities.


 


(d) In the event that
the Issuer shall issue Securities pursuant to clause (iii) of the fourth
paragraph of Section 2.2, the net proceeds from any such issuance shall be
immediately deposited into an escrow account (other than the Escrow Account)
pending their investment in property or assets of a nature or type or that are
used in a Permitted Business. Such escrow account (and all cash, cash
equivalents and securities therein) and such property or assets (collectively,
the “Additional Notes Collateral”) shall immediately become part of the
Primary Collateral and the Issuer shall, or shall cause the relevant Subsidiary
Guarantors to, execute such collateral documents and other instruments and take
such other measures as shall be reasonably necessary to cause such escrow
account and such property or assets to become subject to the Primary Collateral
Lien and to perfect such Liens in respect of such escrow account and property
or assets, in each case, in the manner and to the extent required under the
Security Documents.


 


10.3 Application of Proceeds of
Collateral.


 


(a) The holders of the
First Priority Liens shall receive all proceeds from any realization on the
Secondary Collateral until the First Priority Lien Obligations are paid in full
in accordance with the terms thereof, including, without limitation, any
post-petition interest at the respective contract rate, whether or not a claim
for post-petition interest is allowed under applicable laws before making any
payments on the Securities.


 


(b) Proceeds realized
by the First Priority Lien Representative from the Secondary Collateral shall
be applied:


 


First, to
amounts owing to the First Priority Lien Representative and the Collateral
Agent in their respective capacities as First Priority Lien Representative and
Collateral Agent;


 


Second, to
amounts owing to the holders of the First Priority Liens in accordance with the
terms of the First Priority Lien Obligations;


 


Third, to
amounts owing to the Trustee in its capacity as such in accordance with the
terms of this Indenture;


 


Fourth, to
amounts owing to the Holders in accordance with the terms of this Indenture;
and


 


Fifth, to the
Issuer and/or other Persons entitled thereto.


 


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(c) Proceeds realized
by the Collateral Agent from the Primary Collateral (other than Shared Primary
Collateral) shall be applied:


 


First, to
amounts owing to the Collateral Agent and the Escrow Agent in their respective
capacities as Collateral Agent and Escrow Agent;


 


Second, to
amounts owing to the Trustee in its capacity as such in accordance with the
terms of this Indenture;


 


Third, to
amounts owing to the Holders in accordance with the terms of this Indenture;
and


 


Fourth, to
the Issuer and/or other Persons entitled thereto.


 


(d) Proceeds realized
by the Collateral Agent from the Shared Primary Collateral shall be applied:


 


First, to
amounts owing to the Collateral Agent and the First Priority Lien
Representative in their respective capacities as Collateral Agent and First
Priority Lien Representative;


 


Second, to
amounts owing to the Trustee in its capacity as such in accordance with the
terms of this Indenture;


 


Third, to
amounts owing to the Holders in accordance with the terms of this Indenture;


 


Fourth, to
amounts owing to the holders of the First Priority Liens in accordance with the
terms of the First Priority Lien Obligations; and


 


Fifth, to the
Issuer and/or other persons entitled thereto.


 


10.4 Possession, Use and Release
of Collateral.


 


(a) Subject to the
terms of the Security Documents, the Issuer and the Domestic Subsidiaries shall
have the right to remain in possession and retain exclusive control of the
Collateral securing the Securities (other than any cash, securities,
obligations and cash equivalents constituting part of the Collateral and
deposited with the First Priority Lien Representative, the Collateral Agent,
the Escrow Agent or the Trustee in accordance with the provisions of the
Security Documents or this Indenture and other than as set forth in the
Security Documents) to freely operate the Collateral and to collect, invest and
dispose of any income therefrom.


 


(b) Each Holder of a
Security, by accepting such Security, acknowledges that (i) so long as any
First Priority Lien Obligations (or any commitments or letters of credit in
respect thereof) are outstanding, the holders thereof shall control at all
times all remedies and other actions related to the Secondary Collateral, and
the Second Priority Liens shall not entitle the Collateral Agent, the Trustee
or the Holders of Securities to take any action whatsoever with respect to the
Secondary Collateral. As a result, so long as any First Priority Lien
Obligations are


 


90

















 


outstanding, neither the Collateral Agent nor the
Trustee nor the Holders shall be able to force a sale of the Secondary
Collateral or otherwise exercise remedies normally available to secured
creditors without the concurrence of the holders of the First Priority Liens.


 


(c) Each Holder of a
Security, by accepting such Security, acknowledges that, at such time as (i) the
First Priority Lien Obligations have been paid in full in cash in accordance
with the terms thereof and all commitments and letters of credit thereunder
have been terminated, or (ii) the holders of First Priority Lien
Obligations have released their First Priority Liens on all or any portion of
the Secondary Collateral, the Note Liens on the Secondary Collateral shall also
be automatically released to the same extent; provided, however,
that (x) in the case of clause (i) of this sentence, if an Event of
Default under this Indenture exists as of the date on which the First Priority
Lien Obligations are repaid in full and terminated as described in clause (i),
the Note Liens on the Secondary Collateral shall not be released except to the
extent the Collateral or any portion thereof was disposed of in order to repay
the First Priority Lien Obligations secured by the Secondary Collateral, and
thereafter, the Trustee (acting at the direction of the Holders of a majority
of outstanding principal amount of Securities) shall have the right to direct
the Collateral Agent to foreclose upon the Secondary Collateral (but in such
event, the Note Liens shall be released when such Event of Default and all
other Events of Default under this Indenture cease to exist), or (y) if First
Priority Lien Obligations are thereafter secured by assets that would
constitute Secondary Collateral, the Securities and any Subsidiary Guarantees
shall then be secured by a Note Lien on such Secondary Collateral, to the same
extent provided pursuant to the Security Documents as then in effect
immediately prior to the release of the Liens on the Secondary Collateral. If
the Issuer subsequently incurs other First Priority Lien Obligations which are
secured by assets of the Issuer and/or its Subsidiaries of the type
constituting Secondary Collateral, then the Securities and the Note Guarantees
shall be secured at such time by Second Priority Liens on the collateral
securing such First Priority Lien Obligations with the same (in all material
respects) priorities, consent rights and provisions regarding release of
Secondary Collateral and other provisions set forth in the Security Documents
as then in effect immediately prior to the release of the Liens on the
Secondary Collateral.


 


(d) In the event of the
consummation of any sale, transfer or other disposition of any property or
assets that are subject to any Note Liens, which sale, transfer or other
disposition meets the requirements of Section 4.18 hereof, the Note Liens
on such property or assets (but not the Net Proceeds from such sale, transfer
or other disposition) shall be released.


 


(e) Each Holder of a
Security, by accepting such Security, acknowledges that, notwithstanding the
provisions set forth in this Section 10.4, the Issuer and its Subsidiaries
may, without any release or consent by the Collateral Agent or the Trustee, perform a
number of activities in the ordinary course in respect of the Collateral to the
extent permitted pursuant to the Security Documents and this Indenture.


 


10.5 Opinion of Counsel.


 


So long as the Security
Documents have not been terminated in accordance with the terms thereof, the
Issuer shall deliver to the Trustee, so long as such delivery is required by Section 314(b) of
the TIA, on the Issue Date and thereafter, at least annually, within 30 days of
January 1 of each year (commencing with January 1, 2006), an Opinion
of Counsel either stating


 


91

















 


that in the opinion of such counsel, such action has
been taken with respect to the recording, filing, recording and refiling of
this Indenture or any Security Document as is necessary to maintain the Note
Liens, and reciting the details of such action, or stating that in the opinion
of such counsel, no such action is necessary to maintain such Note Liens.


 


10.6 Further Assurances.


 


The Issuer and each
Guarantor shall (a) furnish to the Collateral Agent (for the benefit of
the Trustee and the Holders) from time to time, at the Issuer’s or such
Guarantor’s sole cost and expense, statements and schedules further identifying
and describing the Collateral and such other reports in connection with the
Collateral as the Collateral Agent may request, all in such detail as the
Collateral Agent may request, and (b) subject to the Intercreditor
Agreement (solely with respect to Secondary Collateral), at any time and from
time to time, upon the written request of the Collateral Agent, and at the sole
expense of the Issuer or such Guarantor, promptly and duly execute (as required
by applicable law), deliver and/or have recorded with appropriate agencies such
further instruments and documents and take such further actions as the Collateral
Agent may request for the purpose of obtaining or preserving the full
benefits of this Agreement and of the rights and powers herein granted,
including, without limitation, the filing of any financing or continuation
statements under the UCC (or other similar laws) in effect in any jurisdiction
with respect to the security interests created by the Security Documents.


 


10.7 Trust Indenture Act Requirements.


 


The release of any
Collateral from the Note Liens created by any of the Security Documents or the
release of, in whole or in part, the Note Liens created by any of the Security
Documents, shall not be deemed to impair the Note Liens in contravention of the
provisions hereof if and to the extent the Collateral or Note Liens are
released pursuant to the applicable Security Documents and pursuant to the
terms hereof. Each of the Holders of the Securities acknowledge that a release
of Collateral or Note Liens strictly in accordance with the terms of the
Security Documents or the terms hereof shall not be deemed for any purpose to
be an impairment of the Security Documents or otherwise contrary to the terms
of this Indenture. The Issuer and the Guarantors shall comply with TIA §314(d) relating
to the release of property or securities from the Note Liens but only to the
extent required by the TIA.


 


10.8 Suits to Protect the Collateral.


 


Subject to the provisions of
the Security Documents, the Trustee shall have the authority to direct the
Collateral Agent to institute and to maintain such suits and proceedings as the
Trustee may deem expedient to prevent any impairment of the Collateral by
any acts which may be unlawful or in violation of any of the Security
Documents or this Indenture, and such suits and proceedings as the Trustee may deem
expedient to preserve or protect its interests and the interests of the Holders
of the Securities in the Collateral (including suits or proceedings to restrain
the enforcement of or compliance with any legislative or other governmental
enactment, rule or order that may be unconstitutional or otherwise
invalid if the enforcement of, or compliance with, such enactment, rule or
order would impair the Note Liens or be prejudicial to the interests of the
Holders of the Securities).


 


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10.9 Purchaser Protected.


 


In no event shall any
purchaser in good faith or other transferee of any property purported to be
released hereunder be bound to ascertain the authority of the Trustee to direct
the Collateral Agent to execute the release or to inquire as to the
satisfaction of any conditions required by the provisions hereof for the
exercise of such authority or to see to the application of any consideration
given by such purchaser or other transferee; nor shall any purchaser or other
transferee of any property or rights permitted to be sold by this Article X,
be under obligation to ascertain or inquire into the authority of the Issuer or
any Guarantor, as applicable, to make any such sale or other transfer.


 


10.10 Powers Exercisable by
Receiver or Trustee.


 


In case the Collateral shall
be in the possession of a receiver or trustee, lawfully appointed, the powers
conferred in this Article X upon the Issuer or any Domestic
Subsidiary, as applicable, with respect to the release, sale or other disposition
of such property may be exercised by such receiver or trustee, and an
instrument signed by such receiver or trustee shall be deemed the equivalent of
any similar instrument of the Issuer or any Guarantor, as applicable, or of any
officer or officers thereof required by the provisions of this Article X.


 


10.11 Release upon Termination
of Obligations.


 


In the event that the Issuer
delivers an Officers’ Certificate and Opinion of Counsel certifying that its
obligations under this Indenture have been defeased or discharged by complying
with the provisions of Article VIII, the Note Lien shall be released, and
the Trustee shall (i) execute and deliver such releases, termination
statements and other instruments (in recordable form, where appropriate) as the
Issuer or any Guarantor, as applicable, may reasonably request to evidence
the termination of the Note Liens created by the Security Documents and (ii) not
be deemed to hold the Note Liens for its benefit and the benefit of the Holders
of the Securities.


 


10.12 Collateral Monies.


 


(a) All Collateral
Monies, including without limitation all Net Cash Proceeds received in
connection with a Primary Collateral Asset Sale, as well as Net Loss Proceeds
required to be deposited with the Collateral Agent, shall be held by the
Collateral Agent as part of the Primary Collateral securing the
Securities. So long as no Default or Event of Default under this Indenture
shall have occurred and be continuing, Collateral Monies may: 


 


	
   

  	
  (i)

  	
  with respect to the Net Cash Proceeds of Primary Collateral Asset
  Sales, be released as contemplated by Section 4.18

  
	
   

  	
   

  	
   

  
	
   

  	
  (ii)

  	
  with respect to Net Loss Proceeds, be released to repair or replace
  the relevant Primary Collateral, subject to conditions set forth in this
  Indenture,

  
	
   

  	
   

  	
   

  
	
   

  	
  (iii)

  	
  at the Issuer’s direction be applied by the Collateral Agent from
  time to time to the payment of the principal of, premium, if any, and
  interest on

  



 


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  any Securities at maturity or upon redemption or retirement, or to
  the purchase of Securities upon tender or in the open market or otherwise, in
  each case, in compliance with this Indenture, or

  
	
   

  	
   

  	
   

  
	
   

  	
  (iv)

  	
  continue to be held by the Collateral Agent as part of the
  Primary Collateral securing the Securities.

  



 


(b) The Collateral
Agent shall be entitled to apply any Collateral Monies to cure any Event of
Default under this Indenture. Collateral Monies deposited with the Collateral
Agent shall be invested in cash or Temporary Cash Investments pursuant to the
Issuer’s direction and, so long as no Default or Event of Default shall have
occurred and be continuing, the Issuer shall be entitled to any interest or
dividends accrued, earned or paid on such Temporary Cash Investments.


 


(c) All Collateral
Monies held by the Collateral Agent shall be invested at the instruction of the
Issuer in Treasury Securities and other Collateral Investments. “Treasury
Securities” means any investment in obligations issued or guaranteed by the
United States government or agency thereof, in each case, maturing not later
than one year. “Collateral Investments” means (i) Treasury Securities, (ii) investments
in time deposit accounts, certificates of deposit and money market deposits
maturing not later than one year, in each case, entitled to U.S. Federal
deposit insurance for the full amount thereof or issued by a bank or trust
company (including the Collateral Agent or the Escrow Agent or an Affiliate of
the Collateral Agent or Escrow Agent) that is organized under the laws of the
United States of America or any State thereof having capital, surplus and
undivided profits aggregating in excess of $500.0 million, and (iii) investments
in commercial paper maturing not later than 270 days after acquisition thereof
and having, at the date of acquisition, a rating no lower than A-1 from
S&P, P-1 from Moody’s or F-1 from Fitch Ratings Ltd.


 


ARTICLE XI


 


GUARANTEE
OF SECURITIES


 


11.1 Unconditional Subsidiary Guarantee.


 


Subject to the provisions of
this Article Eleven, each of the Subsidiary Guarantors shall hereby,
jointly and severally, unconditionally and irrevocably guarantee, on an
unsubordinated basis (such guarantees to be referred to herein as the “Subsidiary
Guarantees”) to each Holder of a Security authenticated and delivered by
the Trustee and to the Trustee and its successors and assigns, irrespective of
the validity and enforceability of this Indenture, the Securities or the
obligations of the Issuer or any other Subsidiary Guarantors to the Holders or
the Trustee hereunder or thereunder, that: (a) the principal of, premium,
if any, and interest on the Securities shall be duly and punctually paid in
full when due, whether at maturity, upon redemption at the option of Holders
pursuant to the provisions of the Securities relating thereto, by acceleration
or otherwise, and interest on the overdue principal and (to the extent
permitted by law) interest, if any, on the Securities and all other obligations
of the Issuer or the Subsidiary Guarantors to the Holders or the Trustee
hereunder or thereunder (including amounts due the Trustee under Section 7.7
hereof) and all other obligations shall be promptly paid in full or performed,
all in


 


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accordance with the terms hereof and thereof; and (b) in
case of any extension of time of payment or renewal of any Securities or any of
such other obligations, the same shall be promptly paid in full when due or
performed in accordance with the terms of the extension or renewal, whether at
maturity, by acceleration or otherwise. Failing payment when due of any amount
so guaranteed, or failing performance of any other obligation of the Issuer to
the Holders under this Indenture or under the Securities, for whatever reason,
each Subsidiary Guarantor shall be obligated to pay, or to perform or
cause the performance of, the same immediately. An Event of Default under this
Indenture or the Securities shall constitute an event of default under the
Subsidiary Guarantees, and shall entitle the Holders of Securities to accelerate
the obligations of the Guarantors hereunder in the same manner and to the same
extent as the obligations of the Issuer.


 


Each of the Subsidiary
Guarantors shall hereby agree that its obligations hereunder shall be
unconditional, irrespective of the validity, regularity or enforceability of
the Securities or this Indenture, the absence of any action to enforce the
same, any waiver or consent by any Holder of the Securities with respect to any
provisions hereof or thereof, any release of any other Subsidiary Guarantor,
the recovery of any judgment against the Issuer, any action to enforce the
same, whether or not a Subsidiary Guarantee is affixed to any particular
Security, or any other circumstance which might otherwise constitute a legal or
equitable discharge or defense of a Subsidiary Guarantor. Each of the
Subsidiary Guarantors shall hereby waive the benefit of diligence, presentment,
demand of payment, filing of claims with a court in the event of insolvency or
bankruptcy of the Issuer, any right to require a proceeding first against the
Issuer, protest, notice and all demands whatsoever and covenants that, except
as provided in this Indenture, the Securities or its Subsidiary Guarantee, its
Subsidiary Guarantee shall not be discharged except by complete performance of
the obligations contained in the Securities, this Indenture and the Subsidiary
Guarantees. Each Subsidiary Guarantee is a guarantee of payment and not of
collection. If any Holder or the Trustee is required by any court or otherwise
to return to the Issuer or to any Subsidiary Guarantor, or any custodian,
trustee, liquidator or other similar official acting in relation to the Issuer
or such Subsidiary Guarantor, any amount paid by the Issuer or such Subsidiary
Guarantor to the Trustee or such Holder, each Subsidiary Guarantee, to the
extent theretofore discharged, shall be reinstated in full force and effect.
Each Subsidiary Guarantor shall hereby further agree that, as between it, on
the one hand, and the Holders of Securities and the Trustee, on the other hand,
(a) subject to this Article Eleven, the maturity of the obligations
guaranteed hereby may be accelerated as provided in Article VI hereof
for the purposes of the Subsidiary Guarantees, notwithstanding any stay,
injunction or other prohibition preventing such acceleration in respect of the
obligations guaranteed hereby, and (b) in the event of any acceleration of
such obligations as provided in Article VI hereof, such obligations
(whether or not due and payable) shall forthwith become due and payable by the
Subsidiary Guarantors for the purpose of the Subsidiary Guarantees.


 


No Affiliate, stockholder,
officer, director, limited liability company member or employee, past, present
or future, of any Subsidiary Guarantor, as such, shall have any personal
liability under such Subsidiary Guarantor’s Subsidiary Guarantee by reason of
his, her or its status as such Affiliate, stockholder, officer, director,
limited liability company member or employee.


 


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11.2 Limitations on Subsidiary
Guarantees.


 


The obligations of any
Subsidiary Guarantor under its Subsidiary Guarantee shall be limited to the
maximum amount which, after giving effect to all other contingent and fixed
liabilities of such Subsidiary Guarantor (including all First Priority Lien
Obligations of such Subsidiary Guarantor) and after giving effect to any
collections from or payments made by or on behalf of any other Subsidiary
Guarantor in respect of the obligations of such other Subsidiary Guarantor
under its Subsidiary Guarantee or pursuant to its contribution obligations
under this Indenture, shall result in the obligations of such Subsidiary
Guarantor under the Subsidiary Guarantee not constituting a fraudulent
conveyance or fraudulent transfer under federal or state law. Each Subsidiary
Guarantor that makes a payment or distribution under a Subsidiary Guarantee
shall be entitled to a contribution from each other Subsidiary Guarantor in an
amount pro  rata, based on the net assets of each Subsidiary
Guarantor, determined in accordance with GAAP.


 


11.3 Execution and Delivery of
Subsidiary Guarantee.


 


To further evidence the
Subsidiary Guarantees set forth in Section 11.1, each Subsidiary Guarantor
hereby agrees that a notation of its Subsidiary Guarantee, substantially in the
form of Exhibit E hereto, shall be endorsed on each Security
authenticated and delivered by the Trustee. The Subsidiary Guarantee of any
Subsidiary Guarantor shall be executed on behalf of such Subsidiary Guarantor
by either manual or facsimile signature of two Officers of such Subsidiary
Guarantor, each of whom, in each case, shall have been duly authorized to so
execute by all requisite corporate action. The validity and enforceability of
any Subsidiary Guarantee shall not be affected by the fact that it is not
affixed to any particular Security.


 


Each of the Subsidiary
Guarantors hereby agrees that its Subsidiary Guarantee set forth in Section 11.1
shall remain in full force and effect notwithstanding any failure to endorse on
each Security a notation of such Subsidiary Guarantee.


 


If an Officer of a
Subsidiary Guarantor whose signature is on this Indenture or a Subsidiary
Guarantee no longer holds that office at the time the Trustee authenticates the
Security on which such Subsidiary Guarantee is endorsed or at any time
thereafter, such Subsidiary Guarantor’s Subsidiary Guarantee of such Security
shall nevertheless be valid.


 


The delivery of any Security
by the Trustee, after the authentication thereof hereunder, shall constitute
due delivery of any Subsidiary Guarantee set forth in this Indenture on behalf
of each Subsidiary Guarantor.


 


11.4 Release of a Subsidiary
Guarantor.


 


(a) Upon (i) the
sale, exchange, transfer or other disposition of all of the Capital Stock of a
Subsidiary Guarantor by the Issuer or any Restricted Subsidiary of the Issuer (ii) the
designation of a Subsidiary Guarantor as an Unrestricted Subsidiary in
accordance with the terms of this Indenture or (iii) the defeasance or
discharge of the Securities in accordance with the terms of this Indenture,
such Subsidiary Guarantor’s (or, in the case of clause (iii), each Subsidiary
Guarantor’s) Subsidiary Guarantee shall be automatically discharged and such
Subsidiary Guarantor shall be released from all obligations under this Article Eleven
without any


 


96

















 


further action required on the part of the
Subsidiary Guarantor, the Issuer, the Trustee or any Holder. Any Subsidiary
Guarantor not so released or the entity surviving such Subsidiary Guarantor, as
applicable, shall remain or be liable under its Subsidiary Guarantee as
provided in this Article Eleven.


 


(b) The Trustee shall
deliver an appropriate instrument evidencing the release of a Subsidiary Guarantor
upon receipt of a request by the Issuer or such Subsidiary Guarantor
accompanied by an Officers’ Certificate and an Opinion of Counsel certifying as
to the compliance with this Section 11.4; provided, however,
that the legal counsel delivering such Opinion of Counsel may rely as to
matters of fact on one or more Officers’ Certificates of the Issuer.


 


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


 


11.5 Waiver of Subrogation.


 


Until this Indenture is
discharged and all of the Securities are discharged and paid in full, each
Subsidiary Guarantor shall hereby irrevocably waive and agrees not to exercise
any claim or other rights which it may now or hereafter acquire against
the Issuer that arise from the existence, payment, performance or enforcement
of the obligations under the Securities or this Indenture and such Subsidiary
Guarantor’s obligations under its Subsidiary Guarantee and this Indenture, in
any such instance, including, without limitation, any right of subrogation,
reimbursement, exoneration, contribution, indemnification, and any right to
participate in any claim or remedy of the Holders against the Issuer, whether
or not such claim, remedy or right arises in equity, or under contract, statute
or common law, including, without limitation, the right to take or receive from
the Issuer, directly or indirectly, in cash or other property or by set-off or
in any other manner, payment or security on account of such claim or other
rights. If any amount shall be paid to any Subsidiary Guarantor in violation of
the preceding sentence and any amounts owing to the Trustee or the Holders of
Securities under the Securities, this Indenture, or any other document or
instrument delivered under or in connection with such agreements or
instruments, shall not have been paid in full, such amount shall have been
deemed to have been paid to such Subsidiary Guarantor for the benefit of, and
held in trust for the benefit of, the Trustee or the Holders and shall
forthwith be paid to the Trustee for the benefit of itself or such Holders to
be credited and applied to the obligations in favor of the Trustee or the
Holders, as the case may be, whether matured or unmatured, in accordance
with the terms of this Indenture. Each Subsidiary 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 11.5
is knowingly made in contemplation of such benefits.


 


11.6 Immediate Payment.


 


Each Subsidiary Guarantor,
upon the execution and delivery of a Subsidiary Guarantee pursuant to Section 4.15,
shall hereby agree to make immediate payment to the Trustee, on behalf of the
Holders or itself, of all Obligations due and owing or payable to the
respective


 


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Holders or the Trustee upon receipt of a demand for
payment therefor by the Trustee to such Subsidiary Guarantor in writing.


 


11.7 No Set-Off.


 


Each payment to be made by a
Subsidiary Guarantor hereunder in respect of the Obligations shall be payable in
the currency or currencies in which such Obligations are denominated, and shall
be made without set-off, counterclaim, reduction or diminution of any kind or
nature.


 


11.8 Obligations Absolute.


 


The obligations of each
Subsidiary Guarantor hereunder are and shall be absolute and unconditional and
any monies or amounts expressed to be owing or payable by each Subsidiary
Guarantor hereunder which may not be recoverable from such Subsidiary
Guarantor on the basis of a Subsidiary Guarantee shall be recoverable from such
Subsidiary Guarantor as a primary obligor and principal debtor in respect
thereof.


 


11.9 Obligations Continuing.


 


The obligations of each
Subsidiary Guarantor hereunder shall be continuing and shall remain in full
force and effect until either all the obligations have been discharged or
defeased pursuant to Article VIII or terminated pursuant to Section 11.4.
Each Subsidiary Guarantor shall hereby agree with the Trustee that it shall
from time to time deliver to the Trustee suitable acknowledgments of its
continued liability hereunder and under any other instrument or instruments in
such form as counsel to the Trustee may advise and as shall prevent
any action brought against it in respect of any default hereunder being barred
by any statute of limitations now or hereafter in force and, in the event of
the failure of a Subsidiary Guarantor so to do, it hereby irrevocably appoints
the Trustee the attorney and agent of such Subsidiary Guarantor to make,
execute and deliver such written acknowledgment or acknowledgments or other
instruments as may from time to time become necessary or advisable, in the
judgment of the Trustee on the advice of counsel, to fully maintain and keep in
force the liability of such Subsidiary Guarantor hereunder and under its
Subsidiary Guarantee.


 


11.10 Obligations Not Discharged.


 


Except as provided herein,
the obligations of each Subsidiary Guarantor hereunder shall not be satisfied
or discharged solely by the payment of such principal, premium, if any,
interest, fees and other monies or amounts as may at any time prior to
discharge of this Indenture pursuant to Article VIII be or become owing or
payable under or by virtue of or otherwise in connection with the Securities or
this Indenture.


 


11.11 Obligations Reinstated.


 


The obligations of each
Subsidiary Guarantor hereunder shall continue to be effective or shall be
reinstated, as the case may be, if at any time any payment which would
otherwise have reduced the obligations of any Subsidiary Guarantor hereunder
(whether such payment shall have been made by or on behalf of the Issuer or by
or on behalf of a Subsidiary Guarantor) is


 


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rescinded or reclaimed from any of the Holders upon
the insolvency, bankruptcy, liquidation or reorganization of the Issuer or any
Subsidiary Guarantor or otherwise, all as though such payment had not been
made. If demand for, or acceleration of the time for, payment by the Issuer is
stayed upon the insolvency, bankruptcy, liquidation or reorganization of the
Issuer, all such Indebtedness otherwise subject to demand for payment or
acceleration shall nonetheless be payable by each Subsidiary Guarantor as
provided herein.


 


11.12 Obligations Not Affected.


 


The obligations of each
Subsidiary Guarantor hereunder shall, to the extent permitted by law, not be
affected, impaired or diminished in any way by any act, omission, matter or
thing whatsoever, occurring before, upon or after any demand for payment
hereunder (and whether or not known or consented to by any Subsidiary Guarantor
or any of the Holders) which, but for this provision, might constitute a whole
or partial defense to a claim against any Subsidiary Guarantor hereunder or
might operate to release or otherwise exonerate any Subsidiary Guarantor from
any of its obligations hereunder or otherwise affect such obligations, whether
occasioned by default of any of the Holders or otherwise, including, without
limitation:


 


(i) any limitation of status or power, disability, incapacity or
other circumstance relating to the Issuer or any other Person, including any
insolvency, bankruptcy, liquidation, reorganization, readjustment, composition,
dissolution, winding-up or other proceeding involving or affecting the Issuer
or any other Person;


 


(ii) any irregularity, defect, unenforceability or invalidity in
respect of any indebtedness or other obligation of the Issuer or any other
Person under this Indenture, the Securities or any other document or
instrument;


 


(iii) any failure of the Issuer, whether or not without fault on
its part, to perform or comply with any of the provisions of this
Indenture or the Securities, or to give notice thereof to a Subsidiary
Guarantor;


 


(iv) the taking or enforcing or exercising or the refusal or
neglect to take or enforce or exercise any right or remedy from or against the
Issuer or any other Person or their respective assets or the release or
discharge of any such right or remedy;


 


(v) the granting of time, renewals, extensions, compromises,
concessions, waivers, releases, discharges and other indulgences to the Issuer
or any other Person;


 


(vi) any change in the time, manner or place of payment of, or in
any other term of, any of the Securities, or any other amendment, variation,
supplement, replacement or waiver of, or any consent to departure from, any of
the Securities or this Indenture, including, without limitation, any increase
or decrease in the principal amount of or premium, if any, or interest on any
of the Securities;


 


(vii) any change in the ownership, control, name, objects,
businesses, assets, capital structure or constitution of the Issuer or a
Subsidiary Guarantor;


 


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(viii) any merger or amalgamation of the Issuer or a Subsidiary
Guarantor with any Person or Persons;


 


(ix) the occurrence of any change in the laws, rules, regulations
or ordinances of any jurisdiction by any present or future action of any
governmental authority or court amending, varying, reducing or otherwise
affecting, or purporting to amend, vary, reduce or otherwise affect, any of the
Obligations or the obligations of a Subsidiary Guarantor under its Subsidiary
Guarantee; and


 


(x) any other circumstance, including release of any other Subsidiary
Guarantor pursuant to Section 11.4 (other than by complete, irrevocable
payment) that might otherwise constitute a legal or equitable discharge or
defense of the Issuer under this Indenture or the Securities or of another
Subsidiary Guarantor in respect of its Subsidiary Guarantee hereunder;


 


provided that the provisions of this Section 11.12 are not intended to
affect in any way any release of a Guarantor in accordance with the provisions
of Section 11.4.


 


11.13 Waiver.


 


Without in any way limiting
the provisions of Section 11.1, each Subsidiary Guarantor shall hereby
waive notice of acceptance hereof, notice of any liability of any Subsidiary
Guarantor hereunder, notice or proof of reliance by the Holders upon the
obligations of any Subsidiary Guarantor hereunder, and diligence, presentment,
demand for payment on the Issuer, protest, notice of dishonor or non-payment of
any of the Obligations, or other notice or formalities to the Issuer or any
Subsidiary Guarantor of any kind whatsoever.


 


11.14 No Obligation to Take
Action Against the Issuer.


 


Neither the Trustee nor any
other Person shall have any obligation to enforce or exhaust any rights or
remedies or to take any other steps under any security for the Obligations or
against the Issuer or any other Person or any property of the Issuer or any
other Person before the Trustee is entitled to demand payment and performance
by any or all Subsidiary Guarantors of their liabilities and obligations under
their Subsidiary Guarantees or under this Indenture.


 


11.15 Dealing with the Issuer and Others.


 


The Holders, without
releasing, discharging, limiting or otherwise affecting in whole or in part the
obligations and liabilities of any Subsidiary Guarantor and without the consent
of or notice to any Guarantor, may


 


(i) grant time, renewals, extensions, compromises, concessions,
waivers, releases, discharges and other indulgences to the Issuer or any other
Person;


 


(ii) take or abstain from taking security or collateral from the
Issuer or from perfecting security or collateral of the Issuer;


 


100

















 


(iii) release, discharge, compromise, realize, enforce or
otherwise deal with or do any act or thing in respect of (with or without
consideration) any and all collateral, mortgages or other security given by the
Issuer or any third party with respect to the obligations or matters
contemplated by this Indenture or the Securities;


 


(iv) accept compromises or arrangements from the Issuer;


 


(v) apply all monies at any time received from the Issuer or from
any security upon such part of the Obligations as the Holders may see
fit or change any such application in whole or in part from time to time
as the Holders may see fit; and


 


(vi) otherwise deal with, or waive or modify their right to deal
with, the Issuer and all other Persons and any security as the Holders or the
Trustee may see fit.


 


11.16 Default and Enforcement.


 


If any Subsidiary Guarantor
fails to pay in accordance with Section 11.6, the Trustee may proceed
in its name as trustee hereunder in the enforcement of the Subsidiary Guarantee
of any such Subsidiary Guarantor and such Subsidiary Guarantor’s obligations
thereunder and hereunder by any remedy provided by law, whether by legal
proceedings or otherwise, and to recover from such Guarantor the obligations.


 


11.17 [Intentionally Omitted].


 


11.18 Acknowledgment.


 


Each Subsidiary Guarantor
shall hereby acknowledge communication of the terms of this Indenture and the
Securities and shall hereby consent to and approves of the same.


 


11.19 Costs and Expenses.


 


Each Subsidiary Guarantor
shall pay on demand by the Trustee any and all costs, fees and expenses
(including, without limitation, legal fees on a solicitor and client basis)
incurred by the Trustee, its agents, advisors and counsel or any of the Holders
in enforcing any of their rights under any Subsidiary Guarantee.


 


11.20 No Merger or Waiver;
Cumulative Remedies.


 


No Subsidiary Guarantee
shall operate by way of merger of any of the obligations of a Subsidiary
Guarantor under any other agreement, including, without limitation, this
Indenture. No failure to exercise and no delay in exercising, on the part of
the Trustee or the Holders, any right, remedy, power or privilege hereunder or
under this Indenture or the Securities, shall operate as a waiver thereof; nor
shall any single or partial exercise of any right, remedy, power or privilege
hereunder or under this Indenture or the Securities preclude any other or
further exercise thereof or the exercise of any other right, remedy, power or
privilege. The rights, remedies, powers and privileges in the Subsidiary
Guarantee and under this Indenture, the Securities and any other document or
instrument between a Subsidiary Guarantor and/or either


 


101

















 


Issuer and the Trustee are cumulative and not
exclusive of any rights, remedies, powers and privilege provided by law.


 


11.21 Survival of Obligations.


 


Without prejudice to the
survival of any of the other obligations of any Subsidiary Guarantor hereunder,
the obligations of each Subsidiary Guarantor under Section 11.1 shall
survive the payment in full of the Obligations under the Securities, but only
if and to the extent such payment is avoided, and in such case shall be
enforceable against such Subsidiary Guarantor to the same extent as prior to
any such payment and without regard to and without giving effect to any
defense, right of offset or counterclaim available to or which may be
asserted by the Issuer or any Subsidiary Guarantor.


 


11.22 Subsidiary Guarantee in
Addition to Other Obligations.


 


The Obligations of each
Subsidiary Guarantor under its Subsidiary Guarantee and this Indenture are in
addition to and not in substitution for any other Obligations to the Trustee or
to any of the Holders in relation to this Indenture or the Securities and any
guarantees or security at any time held by or for the benefit of any of them.


 


ARTICLE XII


 


[INTENTIONALLY OMITTED]


 


ARTICLE XIII




MISCELLANEOUS


 


13.1 TIA Controls.


 


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


 


13.2 Notices.


 


Any notices or other
communications required or permitted hereunder shall be in writing, and shall
be sufficiently given if made by hand delivery, by telex, by telecopier or
registered or certified mail, postage prepaid, return receipt requested,
addressed as follows:


 


if to the Issuer or a
Subsidiary Guarantor, if any:


 


Aventine Renewable Energy
Holdings, Inc.


1300 South 2nd Street 


Pekin, Illinois 61555 


Attention: Chief Financial
Officer 


 


Telecopy: (309) 346-0742


 


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with a copy to:


 


Davis Polk &
Wardwell 


450 Lexington Avenue 


New York, New York 10022 


Attention: Richard Truesdell, Esq.


 


Telephone: (212) 450-4000 Telecopy:
(212-450-3800)


 


if to the Trustee or the
Collateral Agent:


 


Wells Fargo Bank, N.A. 


Corporate Trust Services 


Sixth Street &
Marquette Avenue 


Minneapolis, Minnesota 55479



Attention: Aventine
Administrator


 


The Issuer and the Trustee
by written notice to each other such Person may designate additional or
different addresses for notices to such Person. Any notice or communication to
the Issuer and the Trustee, shall be deemed to have been given or made as of the
date so delivered if personally delivered; when answered back, if telecopied;
and five (5) calendar days after mailing if sent by registered or
certified mail, postage prepaid (except that a notice of change of address
shall not be deemed to have been given until actually received by the
addressee), except that, with respect to any mailing, notices to the Trustee
shall be deemed effective only upon receipt.


 


Any notice or communication
mailed to a Securityholder shall be mailed to him by first class mail or
other equivalent means at his address as it appears on the registration books
of the Registrar and shall be sufficiently given to him if so mailed within the
time prescribed.


 


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


 


13.3 Communications by Holders
with Other Holders.


 


Securityholders may communicate
pursuant to TIA § 312(b) with other Securityholders with respect to
their rights under this Indenture or the Securities. The Issuer, the Trustee,
the Registrar and any other Person shall have the protection of TIA § 312(c).


 


13.4 Certificate and Opinion as
to Conditions Precedent.


 


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


 


(i) an Officers’ Certificate, in form and substance
satisfactory to the Trustee, stating that, in the opinion of the signers, all
conditions precedent to be performed or


 


103

















 


effected
by the Issuer, if any, provided for in this Indenture relating to the proposed
action have been complied with; and


 


(ii) an Opinion of Counsel stating that, in the opinion of such
counsel, any and all such conditions precedent have been complied with.


 


13.5 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 the Officers’ Certificate required by Section 4.8,
shall include:


 


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


 


(ii) 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;


 


(iii) 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


 


(iv) a statement as to whether or not, in the opinion of each such
Person, such condition or covenant has been complied with; provided, however,
that with respect to matters of fact an Opinion of Counsel may rely on an
Officers’ Certificate or certificates of public officials.


 


13.6 Rules by Trustee,
Paying Agent, Registrar.


 


The Trustee, Paying Agent or
Registrar may make reasonable rules for its functions.


 


13.7 Legal Holidays.


 


If a payment date is not a
Business Day, payment may be made on the next succeeding day that is a
Business Day.


 


13.8 Governing Law.


 


THIS INDENTURE, THE
SECURITIES AND ANY SUBSIDIARY GUARANTEES WILL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK. Each of the parties hereto
agrees to submit to the jurisdiction of the courts of the State of New York in
any action or proceeding arising out of or relating to this Indenture, the
Securities or any Subsidiary Guarantees.


 


104

















 


13.9 No Adverse Interpretation
of Other Agreements.


 


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


 


13.10 No Recourse Against Others.


 


No recourse for the payment
of the principal of, premium, if any, or interest on any of the Securities or
for any claim based thereon or otherwise in respect thereof, and no recourse
under or upon any obligation, covenant or agreement of any Obligor in this
Indenture, or in any of the Securities or Note Guarantees or because of the
creation of any Indebtedness represented thereby, shall be had against any
incorporator, stockholder, officer, director, employee or controlling person of
the Issuer or any Subsidiary Guarantor or of any successor Person thereof. Each
Holder, by accepting the Securities, waives and releases all such liability.
The waiver and release are part of the consideration for the issuance of
the Securities. Such waiver may not be effective to waive liabilities
under the federal securities laws.


 


13.11 Successors.


 


All agreements of the Issuer
and the Subsidiary Guarantors, if any, in this Indenture and the Securities and
the Subsidiary Guarantees shall bind their respective successors. All
agreements of the Trustee in this Indenture shall bind its successor.


 


13.12 Duplicate Originals.


 


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


 


13.13 Severability.


 


In case any one or more of
the provisions in this Indenture, the Securities or the Subsidiary Guarantees
shall be held invalid, illegal or unenforceable, in any respect for any reason,
the validity, legality and enforceability of any such provision in every other
respect and of the remaining provisions shall not in any way be affected or
impaired thereby, it being intended that all of the provisions hereof shall be
enforceable to the full extent permitted by law.


 


105

















 


SIGNATURES


 


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


 


	
   

  	
  AVENTINE RENEWABLE ENERGY HOLDINGS, INC.

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  AVENTINE RENEWABLE ENERGY, LLC

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  AVENTINE RENEWABLE ENERGY, INC.

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  



 


S-1

















 


	
   

  	
  WELLS FARGO BANK, N.A.

  as Trustee

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  



 


S-2






 










Exhibit A


 


[FORM OF INITIAL NOTE]*


 


[FACE OF SECURITY]


 


AVENTINE RENEWABLE ENERGY
HOLDINGS, INC.


 


Senior Secured Floating Rate
Note due 2011 


 


	
  CUSIP No.

  	
   

  
	
  ISIN No.

  	
   

  
	
  No.

  	
  Principal Amount  $

  



 


     AVENTINE RENEWABLE ENERGY HOLDINGS, INC.,
a Delaware corporation (the “Issuer”), for value received promises to
pay to CEDE & CO. or registered assigns, the principal sum of
              Dollars
($               
) on December 15, 2011.


 


     Interest
Payment Dates: March 15, June 15, September 15 and December 15;
commencing March 15, 2005.


 


     Record
Dates: March 1, June 1, September 1, and December 1.


 


     Reference
is made to the further provisions of this Security contained herein, which
shall for all purposes have the same effect as if set forth at this place.


 






* Add Private Placement Legend and, if appropriate,
Global Security Legend.


 


A-1

















 


     IN WITNESS WHEREOF, the Issuer has caused
this Security to be signed manually or by facsimile by its duly authorized
officers.


 


Dated:


 


	
   

  	
  AVENTINE RENEWABLE ENERGY HOLDINGS, INC.

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
   

  	
  Name:

  	
   

  
	
   

  	
   

  	
  Title:

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
   

  	
  Name:

  	
   

  
	
   

  	
   

  	
  Title:

  	
   

  



 


A-2

















 


[FORM OF TRUSTEE’S
CERTIFICATE OF AUTHENTICATION]


 


     This is
one of the Senior Secured Floating Rate Notes due 2011 described in the
within-mentioned Indenture. 


 


	
   

  	
  WELL FARGO BANK, N.A.,

  
	
   

  	
  as Trustee

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
   

  	
  Authorized Signatory

  	
   

  



 


A-3

















 


[REVERSE OF SECURITY]


 


AVENTINE RENEWABLE ENERGY
HOLDINGS, INC.


 


Senior Secured Floating Rate
Note due 2011


 


1.
Interest.


 


     AVENTINE
RENEWABLE ENERGY HOLDINGS, INC., a Delaware corporation (the “Issuer”),
promises to pay interest on the principal amount of this Security at a rate per
annum, reset quarterly, equal to LIBOR plus 6.0%, as determined by the
calculation agent (the “Calculation Agent”), which initially shall be
the Trustee. Interest on the Securities shall be payable quarterly in arrears
on March 15, June 15, September 15 and December 15,
commencing on March 15, 2005. The Issuer shall make each interest payment
to the holders of record on the immediately preceding March 1, June 1,
September 1 and December 1. Interest on the Securities shall accrue
from the most recent date to which interest has been paid or, if no interest
has been paid, from and including the Issue Date.


 


     ”Determination
Date,” with respect to an Interest Period, shall be the second London Banking
Day preceding the first day of such Interest Period.


 


     ”Interest
Period” means the period commencing on and including an interest payment date
and ending on and including the day immediately preceding the next succeeding
interest payment date, with the exception that the first Interest Period shall
commence on and include the Issue Date and end on and include March 14,
2005.


 


     ”LIBOR,”
with respect to an Interest Period, shall be the rate (expressed as a
percentage per annum) for deposits in U.S. dollars for a three month period
beginning on the second London Banking Day after the Determination Date that
appears on Telerate Page 3750 as of 11:00 a.m., London time, on the
Determination Date. If Telerate Page 3750 does not include such a rate or
is unavailable on a Determination Date, the Calculation Agent shall request the
principal London office of each of four major banks in the London interbank
market, as selected by the Calculation Agent, to provide such bank’s offered
quotation (expressed as a percentage per annum), as of approximately 11:00 a.m.,
London time, on such Determination Date, to prime banks in the London interbank
market for deposits in a Representative Amount in U.S. dollars for a three
month period beginning on the second London Banking Day after the Determination
Date. If at least two such offered quotations are so provided, the rate for the
Interest Period shall be arithmetic mean of such quotations. If fewer than two
such quotations are so provided, the Calculation Agent shall request each of
three major banks in New York City, as selected by the Calculation Agent, to
provide such bank’s rate (expressed as a percentage per annum), as of
approximately 10:00 a.m., New York City time, on such Determination Date,
for loans in a Representative Amount in U.S. dollars to leading European banks
for a three month period beginning on the second London Banking Day after the
Determination Date. If at least two such rates are so provided, the rate for
the Interest Period shall be the arithmetic mean of such rates. If fewer than
two such rates are so provided, then the rate for the Interest Period shall be
the rate in effect with respect to the immediately preceding Interest Period.


 


A-4

















 


     ”London
Banking Day” is any day on which dealings in U.S. dollars are transacted or,
with respect to any future date, are expected to be transacted in the London
interbank market.


 


     ”Representative
Amount” means a principal amount of not less than $1,000,000 for a single
transaction in the relevant market at the relevant time.


 


     ”Telerate
Page 3750” means the display designated as “Page 3750” on the
Moneyline Telerate service (or such other page as may replace Page 3750
on that service).


 


     The
amount of interest for each day that the Securities are outstanding (the “Daily
Interest Amount”) shall be calculated by dividing the interest rate in effect
for such day by 360 and multiplying the result by the principal amount of the
Securities. The amount of interest to be paid on the Securities for each
Interest Period shall be calculated by adding the Daily Interest Amounts for
each day in the Interest Period.


 


     All
percentages resulting from any of the above calculations shall be rounded, if
necessary, to the nearest one hundred thousandth of a percentage point, with
five one-millionths of a percentage point being rounded upwards (e.g.,
9.876545% (or .09876545) being rounded to 9.87655% (or .0987655)) and all
dollar amounts used in or resulting from such calculations shall be rounded to
the nearest cent (with one-half cent being rounded upwards).


 


     The
interest rate on the Securities shall in no event be higher than the maximum
rate permitted by New York law as the same may be modified by United
States law of general application.


 


     The
Calculation Agent will, upon the request of any holder of Securities, provide
the interest rate then in effect with respect to the Securities. All
calculations made by the Calculation Agent in the absence of manifest error
shall be conclusive for all purposes and binding on the Issuer, the Subsidiary
Guarantors and the holders of the Securities.


 


     The
Issuer shall pay interest (“defaulted interest”) on overdue principal
and premium, if any, and interest on overdue installments of interest, to the
extent lawful, at a rate per annum that is 2.0% in excess of the rate otherwise
payable.


 


2.
Method of Payment.


 


     The
Issuer shall pay interest on the Securities (except defaulted interest) to the
Persons who are the registered Holders at the close of business on the Record Date
immediately preceding the Interest Payment Date even if the Securities are
canceled on registration of transfer or registration of exchange (including
pursuant to an Exchange Offer (as defined in the Indenture)) after such Record
Date. Holders must surrender Securities to a Paying Agent to collect principal
payments. The Issuer shall pay principal, premium, if any 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”). However, the Issuer may pay
principal, premium, if any, and interest by wire transfer of federal funds, or
interest by check payable in such U.S. Legal Tender. The Issuer may deliver
any such interest payment to the Paying Agent or to a Holder at the Holder’s
registered address.


 


A-5

















 


3.
Paying Agent and Registrar.


 


     Initially,
Wells Fargo Bank, N.A. (the “Trustee”) shall act as Paying Agent and
Registrar. The Issuer may change any Paying Agent, Registrar or
co-Registrar without notice to the Holders. The Issuer or any of its
Subsidiaries may, subject to certain exceptions, act as Registrar or
co-Registrar.


 


4.
Indenture.


 


     The
Issuer issued the Securities under an Indenture, dated as of December 17,
2004 (the “)Indenture”), among the Issuer, the Subsidiary Guarantors and
the Trustee. This Security is one of a duly authorized issue of Securities of
the Issuer designated as their Senior Secured Floating Rate Notes due 2011 (the
“Initial Notes”). Capitalized terms herein are used as defined in the
Indenture unless otherwise defined herein. The terms of the Securities include
those stated in the Indenture and those made part of the Indenture by
reference to the Trust Indenture Act of 1939 (15 U.S.C. §§ 77aaa-77bbbb)
(the “TIA”), as in effect on the date of the Indenture until such time
as the Indenture is qualified under the TIA, and thereafter the TIA as then in
effect as amended from time to time. Notwithstanding anything to the contrary
herein, the Securities are subject to all such terms, and Holders of Securities
are referred to the Indenture and the TIA for a statement of them. The
Securities are general obligations of the Issuer unlimited in amount, of which
an aggregate principal amount of $160,000,000 are being issued on the Issue
Date.


 


5.
Optional Redemption.


 


     The
Issuer may redeem the Securities, in whole at any time or in part from
time to time, on and after December 15, 2006, upon not less than 30 nor
more than 60 days’ notice, at the following redemption prices (expressed as
percentages of the principal amount thereof) if redeemed during the
twelve-month period commencing on December 15 of the years set forth
below, plus, in each case, accrued and unpaid interest thereon, if any, to the
date of redemption (subject to the right of Holders of record on the relevant
record date to receive interest due on the relevant interest payment date): 


 


	
  Year

  	
   

  	
  Percentage

  	
   

  
	
  2006

  	
   

  	
  103.000

  	
  %

  
	
  2007

  	
   

  	
  102.000

  	
  %

  
	
  2008

  	
   

  	
  101.000

  	
  %

  
	
  2009 and thereafter

  	
   

  	
  100.000

  	
  %

  



 


6.
Optional Redemption with the Proceeds of Certain Equity Issuances.


 


     At any
time prior to December 15, 2006, the Issuer may redeem up to 35% of
the principal amount of the Securities then outstanding with the Net Cash
Proceeds of one or more sales of Capital Stock (other than Disqualified Stock)
of the Issuer at a redemption price of 100% of their principal amount plus a
premium equal to the interest rate per annum on the Securities applicable on
the date on which notice of redemption is given, together with accrued and
unpaid interest to the redemption date; provided that at least 65% of the
aggregate principal amount of


 


A-6

















 


the Securities outstanding immediately prior to each
such redemption remains outstanding immediately after each such redemption and
notice of any such redemption is mailed within 60 days of each such sale of
Capital Stock.


 


7. Notice of Redemption.


 


     Notice
of redemption shall be mailed by first-class mail at least 30 days but not
more than 60 days before the Redemption Date to each Holder of Securities to be
redeemed at such Holder’s registered address. Securities in denominations of
$1,000 may be redeemed only in whole. The Trustee may select for
redemption portions (equal to $1,000 or any integral multiple thereof) of the
principal of Securities that have denominations larger than $1,000.


 


     If any
Security is to be redeemed in part only, the notice of redemption that
relates to such Security shall state the portion of the principal amount
thereof to be redeemed. A new Security in a principal amount equal to the
unredeemed portion thereof shall be issued in the name of the Holder thereof
upon cancellation of the original Security. On and after the Redemption Date, interest
shall cease to accrue on Securities or portions thereof called for redemption,
subject to the provisions of the Indenture.


 


8.
Security.


 


     The
Issuer’s obligations under the Securities are secured by Primary Collateral
Liens on the Primary Collateral and Second Priority Liens on the Secondary
Collateral, in each case, pursuant to the terms of the Security Documents. The
actions of the Trustee and the Holders of the Securities secured by Second
Priority Liens and the application of proceeds from the enforcement of any
remedies with respect to the Secondary Collateral are limited pursuant to the
terms of the Security Agreement and the Intercreditor Agreement.


 


9.
Change of Control Offer.


 


     Upon the
occurrence of a Change of Control, the Issuer shall be required, as and to the
extent set forth in the Indenture, to offer to purchase all of the outstanding
Securities at a purchase price equal to 101% of the principal amount thereof,
plus accrued and unpaid interest, if any, thereon to the date of repurchase
(subject to the right of Securityholders of record on the relevant record date
to receive interest due on the relevant interest payment date).


 


10.
Limitation on Asset Sales.


 


     The
Issuer is, subject to certain conditions, obligated to make an offer to
purchase Securities at 100% of their principal amount, plus accrued and unpaid
interest, if any, thereon to the date of repurchase with certain Net Cash
Proceeds of certain sales or other dispositions of assets in accordance with
the Indenture.


 


11. Escrow of Proceeds; Special Offer to Purchase.


 


     The
Issuer is required to make an offer to purchase, using funds in the Escrow
Account, up to $62.5 million (or such lesser amount as is equal to the amount
then held in the Escrow Account) in aggregate principal amount of the
Securities on a pro rata basis if either (a) the


 


A-7

















 


construction of the Pekin Facility Expansion is not
commenced by June 30, 2006 or (b) the Issuer provides written notice
at any time of its decision not to proceed with or complete construction of the
Pekin Facility Expansion. The purchase price shall be 100% of the principal
amount of the Securities outstanding, plus accrued and unpaid interest, if any,
thereon to the date of repurchase.


 


12.
Events of Loss.


 


     The
Issuer is, subject to certain conditions, obligated to make an offer to
purchase Securities at 100% of their principal amount, plus accrued and unpaid
interest, if any, thereon to the date of repurchase with certain Net Loss
Proceeds received by the Issuer in connection with an Event of Loss.


 


13.
Registration Rights.


 


     The
Holders of the Initial Notes issued on the Issue Date shall have the rights set
forth in the Registration Rights Agreement dated as of December 17, 2004
among the Issuer, the Subsidiary Guarantors and the Placement Agent named
therein.


 


14.
Denominations; Transfer; Exchange.


 


     The
Securities are in registered form, without coupons, in denominations of $1,000
and integral multiples of $1,000. A Holder shall register the transfer of or
exchange Securities in accordance with the Indenture. The Registrar may require
a Holder, among other things, to furnish appropriate endorsements and transfer
documents and to pay certain transfer taxes or similar governmental charges
payable in connection therewith as permitted by the Indenture. The Registrar
need not register the transfer of or exchange any Securities or portions
thereof selected for redemption, except the unredeemed portion of any security being
redeemed in part.


 


15. Persons Deemed Owners.


 


     The
registered Holder of a Security shall be treated as the owner of it for all
purposes.


 


16. Unclaimed Funds.


 


     If funds
for the payment of principal, premium, if any, or interest remain unclaimed for
two years, the Trustee and the Paying Agent shall repay the funds to the Issuer
at their request. After that, all liability of the Trustee and such Paying
Agent with respect to such funds shall cease.


 


17. Discharge Prior to Redemption or Maturity.


 


     The
Issuer and the Subsidiary Guarantors may be discharged from their
obligations under the Indenture or the Securities and any Subsidiary Guarantee
except for certain provisions thereof, and may be discharged from
obligations to comply with certain covenants contained in


 






* This paragraph to be modified with respect to
Securities issued after the Issue Date.


 


A-8

















 


the Indenture and the Securities and any Subsidiary
Guarantee, in each case upon satisfaction of certain conditions specified in
the Indenture.


 


18.
Amendment; Supplement; Waiver.


 


     Subject
to certain exceptions, the Indenture, the Securities, any Subsidiary Guarantee
and the Security Documents may be amended or supplemented with the written
consent of the Holders of at least a majority in aggregate principal amount of
the Securities then outstanding, and any existing Default or Event of Default
or compliance with any provision may be waived with the consent of the
Holders of a majority in aggregate principal amount of the Securities then
outstanding. Without notice to or consent of any Holder, the parties thereto may amend
or supplement the Indenture, the Securities, the Subsidiary Guarantees and the
Security Documents to, among other things, cure any ambiguity, defect or
inconsistency, provide for uncertificated Securities and any Subsidiary
Guarantee in addition to or in place of Physical Securities or comply with any
requirements of the Commission in connection with the qualification of the
Indenture under the TIA, or make any other change that does not materially and
adversely affect the rights of any Holder of a Security.


 


19.
Restrictive Covenants.


 


     The
Indenture contains certain covenants that, among other things, limit the ability
of the Issuer 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 Issuer to the
Issuer, 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 Issuer must annually
report to the Trustee on compliance with such limitations.


 


20.
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 Securities then outstanding may declare
all the Securities to be due and payable immediately in the manner and with the
effect provided in the Indenture. Holders of Securities may not enforce
the Indenture, the Securities or any Subsidiary Guarantee except as provided in
the Indenture. The Trustee is not obligated to enforce the Indenture, the
Securities or the Subsidiary Guarantees, if any, 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 Securities then outstanding to direct the Trustee in its exercise
of any trust or power. The Trustee may withhold from Holders of Securities
notice of certain continuing Defaults or Events of Default if it determines
that withholding notice is in their interest.


 


21.
Trustee Dealings with Issuers.


 


     The
Trustee under the Indenture, in its individual or any other capacity, may become
the owner or pledgee of Securities and may otherwise deal with the Issuer,
their Subsidiaries or their respective Affiliates as if it were not the
Trustee.


 


A-9

















 


22.
No Recourse Against Others.


 


     No
recourse for the payment of the principal of, premium, if any, or interest on
any of the Securities or for any claim based thereon or otherwise in respect
thereof, and no recourse under or upon any obligation, covenant or agreement of
any Obligor in the Indenture, or in any of the Securities or Subsidiary
Guarantees or because of the creation of any Indebtedness represented thereby,
shall be had against any incorporator, stockholder, officer, director, employee
or controlling person of the Issuer or any Subsidiary Guarantor or of any
successor Person thereof. Each Holder, by accepting the Securities, waives and
releases all such liability. The waiver and release are part of the
consideration for the issuance of the Securities. Such waiver may not be
effective to waive liabilities under the federal securities laws.


 


23.
Authentication.


 


     This
Security shall not be valid until the Trustee or authenticating agent signs the
certificate of authentication on this Security.


 


24.
Abbreviations and Defined Terms.


 


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


 


25.
Governing Law.


 


     This
Security shall be governed by, and construed in accordance with, the laws of
the State of New York.


 


26.
CUSIP and ISIN Numbers.


 


     Pursuant
to a recommendation promulgated by the Committee on Uniform Security
Identification Procedures, the Issuer has caused CUSIP and ISIN numbers to be
printed on the Securities as a convenience to the Holders of the Securities. No
representation is made as to the accuracy of such numbers as printed on the
Securities and reliance may be placed only on the other identification
numbers printed hereon.


 


27.
Indenture.


 


     Each
Holder, by accepting a Security, agrees to be bound by all of the terms and
provisions of the Indenture and the Security Documents, as each may be
amended from time to time.


 


     The
Issuer shall furnish to any Holder of a Security upon written request and
without charge a copy of the Indenture which has the text of this Security in
larger type. Requests may be made to: Aventine Renewable Energy Holdings, Inc.,
1300 South 2nd Street, Pekin, Illinois 61555, Attn: President.


 


A-10

















 


ASSIGNMENT FORM


 


I
or we assign and transfer this Security 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 Security on the books of the Issuer. The agent may substitute
another to act for him. 


 


 


	
  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 guarantor

  	
   

  
	
   

  	
  program reasonably acceptable to the Trustee)

  	
   

  



 


     In connection with any transfer of
this Security occurring prior to the date which is the earlier of (i) the
date of the declaration by the Commission of the effectiveness of a
registration statement under the Securities Act of 1933, as amended (the “Securities
Act”), covering resales of this Security (which effectiveness shall not
have been suspended or terminated at the date of the transfer) and (ii) the
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 Security is
being transferred:


 


A-11

















 


[Check One] 


 


	
  (1)

  	
   

  	
  o

  	
   

  	
  to either of the Issuer or a subsidiary thereof; or

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  (2)

  	
   

  	
  o

  	
   

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

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  (3)

  	
   

  	
  o

  	
   

  	
  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)

  	
   

  	
  o

  	
   

  	
  outside the United States to a Person that is not a U.S. Person in
  compliance with Rule 904 of Regulation S under the Securities Act; or

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  (5)

  	
   

  	
  o

  	
   

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

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  (6)

  	
   

  	
  o

  	
   

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

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  (7)

  	
   

  	
  o

  	
   

  	
  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 Security is not being transferred to an “affiliate”
of the Issuer as defined in Rule 144 under the Securities Act of 1933, as
amended (an “Affiliate”):


 


     o The transferee is an Affiliate of the Issuer.


 


     Unless
one of the items is checked, the Trustee shall refuse to register any of the
Securities 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 Issuer or the Trustee may require, prior to
registering any such transfer of the Securities, 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 Issuer have
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 Security 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 2.16 of the Indenture shall
have been satisfied. 


 


	
  Dated:

  	
  Signed:

  	
   

  	
   

  
	
   

  	
   

  	
  (Sign exactly as name

  	
   

  
	
   

  	
   

  	
  appears on the other

  	
   

  
	
   

  	
   

  	
  side of this Security)

  	
   

  



 


	
  Signature Guarantee:

  	
   

  	
   

  
	
   

  	
   

  	
   

  



 


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


 


     The
undersigned represents and warrants that it is purchasing this Security for its
own account or an account with respect to which it exercises sole investment
discretion and that it and any such account is a “qualified institutional
buyer” within the meaning of Rule 144A under the Securities Act 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 Issuer 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:

  	
   

  	
   

  



 


A-13

















 


OPTION OF HOLDER TO ELECT
PURCHASE


 


     If you
want to elect to have this Security purchased by the Issuer pursuant to Section 4.17,
Section 4.18, Section 4.23 or Section 4.24 of the Indenture,
check the appropriate box:


 


Section 4.17 o    Section 4.18 o    Section 4.23 o     Section 4.24 o


 


     If you
want to elect to have only part of this Security purchased by the Issuer
pursuant to Section 4.17, Section 4.18, Section 4.23 or Section 4.24
of the Indenture, state the amount: $                       


 


 


	
  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 guarantor

  	
   

  
	
   

  	
  program reasonably acceptable to the Trustee)

  	
   

  



 


A-14

















 


 Exhibit B


 


[FORM OF EXCHANGE NOTE]


 


[FACE OF SECURITY]


 


AVENTINE RENEWABLE ENERGY
HOLDINGS, INC.


 


Senior Secured Floating Rate
Exchange Note

due 2011 


 


	
  CUSIP No.

  	
   

  
	
  ISIN No.

  	
   

  
	
  No.

  	
  $

  



 


     AVENTINE
RENEWABLE ENERGY HOLDINGS, INC., a Delaware limited liability company (the
“Issuer”), for value received promise to pay to CEDE & CO. or
registered assigns, the principal sum of
      Dollars ($), on December 15, 2011.


 


     Interest
Payment Dates: March 15, June 15, September 15 and December 15,
commencing March 15, 2005.


 


     Record
Dates: March 1, June 1, September 1 and December 1.


 


     Reference
is made to the further provisions of this Security contained herein, which
shall for all purposes have the same effect as if set forth at this place.


 


     IN
WITNESS WHEREOF, the Issuer have caused this Security to be signed manually or
by facsimile by their duly authorized officers.


 


Dated:


	
   

  	
  AVENTINE RENEWABLE ENERGY HOLDINGS, INC. 

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
   

  	
  Name:

  	
   

  
	
   

  	
   

  	
  Title:

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
   

  	
  Name:

  	
   

  
	
   

  	
   

  	
  Title:

  	
   

  



 






* Add Global Security Legend, if appropriate.


 


B-1

















 


[FORM OF TRUSTEE’S
CERTIFICATE OF AUTHENTICATION]


 


     This is
one of the Senior Secured Floating Rate Exchange Notes due 2011 described in
the within-mentioned Indenture. 


 


	
   

  	
  WELLS FARGO BANK, N.A.

  
	
   

  	
  as Trustee

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
   

  	
  Authorized Signatory

  	
   

  



 


B-2

















 


[REVERSE OF SECURITY]


 


AVENTINE RENEWABLE ENERGY
HOLDINGS, INC.


 


Senior Secured Floating Rate
Exchange Note due 2011


 


1.
Interest.


 


     AVENTINE
RENEWABLE ENERGY HOLDINGS, INC., a Delaware corporation (the “Issuer”),
promises to pay interest on the principal amount of this Security at a rate per
annum, reset quarterly, equal to LIBOR plus 6%, as determined by the
calculation agent (the “Calculation Agent”), which initially shall be
the Trustee. Interest on the Securities shall be payable quarterly in arrears
on March 15, June 15, September 15 and December 15,
commencing on March 15, 2005. The Issuer shall make each interest payment
to the holders of record on the immediately preceding March 1, June 1,
September 1 and December 1. Interest on the Securities shall accrue
from the most recent date to which interest has been paid or, if no interest
has been paid, from and including the Issue Date.


 


     ”Determination
Date,” with respect to an Interest Period, shall be the second London Banking
Day preceding the first day of such Interest Period.


 


     ”Interest
Period” means the period commencing on and including an interest payment date
and ending on and including the day immediately preceding the next succeeding
interest payment date, with the exception that the first Interest Period shall
commence on and include the Issue Date and end on and include March 14,
2005.


 


     ”LIBOR,”
with respect to an Interest Period, shall be the rate (expressed as a
percentage per annum) for deposits in U.S. dollars for a three month period
beginning on the second London Banking Day after the Determination Date that
appears on Telerate Page 3750 as of 11:00 a.m., London time, on the
Determination Date. If Telerate Page 3750 does not include such a rate or
is unavailable on a Determination Date, the Calculation Agent shall request the
principal London office of each of four major banks in the London interbank
market, as selected by the Calculation Agent, to provide such bank’s offered
quotation (expressed as a percentage per annum), as of approximately 11:00 a.m.,
London time, on such Determination Date, to prime banks in the London interbank
market for deposits in a Representative Amount in U.S. dollars for a three
month period beginning on the second London Banking Day after the Determination
Date. If at least two such offered quotations are so provided, the rate for the
Interest Period shall be arithmetic mean of such quotations. If fewer than two
such quotations are so provided, the Calculation Agent shall request each of
three major banks in New York City, as selected by the Calculation Agent, to
provide such bank’s rate (expressed as a percentage per annum), as of
approximately 10:00 a.m., New York City time, on such Determination Date,
for loans in a Representative Amount in U.S. dollars to leading European banks
for a three month period beginning on the second London Banking Day after the
Determination Date. If at least two such rates are so provided, the rate for
the Interest Period shall be the arithmetic mean of such rates. If fewer than
two such rates are so provided, then the rate for the Interest Period shall be
the rate in effect with respect to the immediately preceding Interest Period.


 


B-3

















 


     ”London
Banking Day” is any day on which dealings in U.S. dollars are transacted or,
with respect to any future date, are expected to be transacted in the London
interbank market.


 


     ”Representative
Amount” means a principal amount of not less than $1,000,000 for a single
transaction in the relevant market at the relevant time.


 


     ”Telerate
Page 3750” means the display designated as “Page 3750” on the
Moneyline Telerate service (or such other page as may replace Page 3750
on that service).


 


     The
amount of interest for each day that the Securities are outstanding (the “Daily
Interest Amount”) shall be calculated by dividing the interest rate in effect
for such day by 360 and multiplying the result by the principal amount of the
Securities. The amount of interest to be paid on the Securities for each
Interest Period shall be calculated by adding the Daily Interest Amounts for
each day in the Interest Period.


 


     All
percentages resulting from any of the above calculations shall be rounded, if
necessary, to the nearest one hundred thousandth of a percentage point, with
five one-millionths of a percentage point being rounded upwards (e.g.,
9.876545% (or .09876545) being rounded to 9.87655% (or .0987655)) and all
dollar amounts used in or resulting from such calculations shall be rounded to
the nearest cent (with one-half cent being rounded upwards).


 


     The
interest rate on the Securities shall in no event be higher than the maximum
rate permitted by New York law as the same may be modified by United
States law of general application.


 


     The
Calculation Agent will, upon the request of any holder of Securities, provide
the interest rate then in effect with respect to the Securities. All calculations
made by the Calculation Agent in the absence of manifest error shall be
conclusive for all purposes and binding on the Issuer, the Subsidiary
Guarantors and the holders of the Securities.


 


     The
Issuer shall pay interest (“defaulted interest”) on overdue principal
and premium, if any, and interest on overdue installments of interest, to the
extent lawful, at a rate per annum that is 2.0% in excess of the rate otherwise
payable.


 


2.
Method of Payment.


 


     the
Issuer shall pay interest on the Securities (except defaulted interest) to the
persons who are the registered Holders at the close of business on the Record
Date immediately preceding the Interest Payment Date even if the Securities are
canceled on registration of transfer or registration of exchange after such
Record Date. Holders must surrender Securities to a Paying Agent to collect
principal payments. The Issuer shall pay principal, premium, if any, 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”).
However, the Issuer may pay principal, premium, if any, and interest by
wire transfer of federal funds, or interest by check payable in such U.S. Legal
Tender. The Issuer may deliver any such interest payment to the Paying
Agent or to a Holder at the Holder’s registered address.


 


B-4

















 


3.
Paying Agent and Registrar.


 


     Initially,
Wells Fargo Bank, N.A. (the “Trustee”) shall act as Paying Agent and
Registrar. The Issuer may change any Paying Agent, Registrar or
co-Registrar without notice to the Holders. The Issuer or any of their
Subsidiaries may, subject to certain exceptions, act as Registrar or
co-Registrar.


 


4.
Indenture.


 


     The
Issuer issued the Securities under an Indenture, dated as of December 17,
2004 (the “Indenture”), among the Issuer, the Subsidiary Guarantors and
the Trustee. This Security is one of a duly authorized issue of Exchange Notes
of the Issuer designated as their Senior Secured Floating Rate Notes due 2011
(the “Exchange Notes”). Capitalized terms herein are used as defined in
the Indenture unless otherwise defined herein. The terms of the Securities
include those stated in the Indenture and those made part of the Indenture
by reference to the Trust Indenture Act of 1939 (15 U.S.C. §§ 77aaa-77bbbb)
(the “TIA”), as in effect on the date of the Indenture until such time
as the Indenture is qualified under the TIA, and thereafter the TIA as then in
effect as amended from time to time. Notwithstanding anything to the contrary
herein, the Securities are subject to all such terms, and Holders of Securities
are referred to the Indenture and the TIA for a statement of them. The
Securities are general obligations of the Issuer unlimited in amount, of which
an aggregate principal amount of $160,000,000 were issued on the Issue Date.


 


5.
Optional Redemption.


 


     The
Issuer may redeem the Securities, in whole at any time or in part from
time to time, on and after December 15, 2006, upon not less than 30 nor
more than 60 days’ notice, at the following redemption prices (expressed as
percentages of the principal amount thereof) if redeemed during the
twelve-month period commencing on December 15 of the years set forth
below, plus, in each case, accrued and unpaid interest thereon, if any, to the
date of redemption (subject to the right of Holders of record on the relevant
record date to receive interest due on the relevant interest payment date): 


 


	
  Year

  	
   

  	
  Percentage

  	
   

  
	
  2006

  	
   

  	
  103.000

  	
  %

  
	
  2007

  	
   

  	
  102.000

  	
  %

  
	
  2008

  	
   

  	
  101.000

  	
  %

  
	
  2009 and thereafter

  	
   

  	
  100.000

  	
  %

  



 


6.
Optional Redemption with the Proceeds of Certain Equity Issuances.


 


     At any
time prior to December 15, 2006, the Issuer may redeem up to 35% of
the principal amount of the Securities then outstanding with the Net Cash
Proceeds of one or more sales of Capital Stock (other than Disqualified Stock)
of the Issuer at a redemption price of 100% of their principal amount plus a
premium equal to the interest rate per annum on the Securities applicable on
the date on which notice of redemption is given, together with accrued and
unpaid


 


B-5

















 


interest to the redemption date; provided that at
least 65% of the aggregate principal amount of the Securities outstanding
immediately prior to each such redemption remains outstanding immediately after
each such redemption and notice of any such redemption is mailed within 60 days
of each such sale of Capital Stock.


 


     7. Notice
of Redemption.


 


     Notice
of redemption shall be mailed by first-class mail at least 30 days but not
more than 60 days before the Redemption Date to each Holder of Securities to be
redeemed at such Holder’s registered address. Securities in denominations of
$1,000 may be redeemed only in whole. The Trustee may select for
redemption portions (equal to $1,000 or any integral multiple thereof) of the
principal of Securities that have denominations larger than $1,000.


 


     If any
Security is to be redeemed in part only, the notice of redemption that
relates to such Security shall state the portion of the principal amount
thereof to be redeemed. A new Security in a principal amount equal to the
unredeemed portion thereof shall be issued in the name of the Holder thereof
upon cancellation of the original Security. On and after the Redemption Date,
interest shall cease to accrue on Securities or portions thereof called for
redemption, subject to the provisions of the Indenture.


 


8.
Security.


 


     The
obligations under the Securities are secured by Primary Collateral Liens on the
Primary Collateral and Second Priority Liens on the Secondary Collateral, in
each case, pursuant to the terms of the Security Documents. The actions of the
Trustee and the Holders of the Securities secured by Second Priority Liens and
the application of proceeds from the enforcement of any remedies with respect
to the Secondary Collateral are limited pursuant to the terms of the Security
Agreement and the Intercreditor Agreement.


 


9.
Change of Control Offer.


 


     Upon the
occurrence of a Change of Control, the Issuer shall be required, as and to the
extent set forth in the Indenture, to offer to purchase all of the outstanding
Securities at a purchase price equal to 101% of the principal amount thereof,
plus accrued and unpaid interest, if any, thereon to the date of repurchase
(subject to the right of Securityholders of record on the relevant record date
to receive interest due on the relevant interest payment date).


 


10.
Limitation on Asset Sales.


 


     The
Issuer is, subject to certain conditions, obligated to make an offer to
purchase Securities at 100% of their principal amount, plus accrued and unpaid
interest, if any, thereon to the date of repurchase with certain net cash
proceeds of certain sales or other dispositions of assets in accordance with
the Indenture.


 


11. Escrow of Proceeds; Special Offer to Purchase


 


     The
Issuer is required to make an offer to purchase, using funds in the Escrow
Account, up to $62.5 million (or such lesser amount as is equal to the amount then
held in the Escrow


 


B-6

















 


Account) in aggregate principal amount of the
Securities on a pro rata basis if either (a) the construction of the
expansion of Aventine Renewable Energy, Inc.’s Pekin, Illinois facility is
not commenced by June 30, 2006 or (b) the Issuer provides written
notice at any time of its decision not to proceed with or complete construction
of such expansion. The purchase price shall be 100% of the principal amount of
the Securities outstanding, plus accrued and unpaid interest, if any, thereon
to the date of repurchase.


 


12.
Events of Loss.


 


     The
Issuer is, subject to certain conditions, obligated to make an offer to
purchase Securities at 100% of their principal amount, plus accrued and unpaid
interest, if any, thereon to the date of repurchase with certain Net Loss
Proceeds received by the Issuer in connection with an Event of Loss.


 


13.
Denominations; Transfer; Exchange.


 


     The
Securities are in registered form, without coupons, in denominations of $1,000
and integral multiples of $1,000. A Holder shall register the transfer of or
exchange Securities in accordance with the Indenture. The Registrar may require
a Holder, among other things, to furnish appropriate endorsements and transfer
documents and to pay certain transfer taxes or similar governmental charges
payable in connection therewith as permitted by the Indenture. The Registrar
need not register the transfer of or exchange any Securities or portions
thereof selected for redemption, except the unredeemed portion of any security
being redeemed in part.


 


14. Persons Deemed Owners.


 


     The
registered Holder of a Security shall be treated as the owner of it for all
purposes.


 


15. Unclaimed Funds.


 


     If funds
for the payment of principal, premium, if any, or interest remain unclaimed for
two years, the Trustee and the Paying Agent shall repay the funds to the Issuer
at their request. After that, all liability of the Trustee and such Paying
Agent with respect to such funds shall cease.


 


16. Discharge Prior to Redemption or Maturity.


 


     The
Issuer and the Subsidiary Guarantors may be discharged from their
obligations under the Indenture or the Securities and any Subsidiary Guarantee
except for certain provisions thereof, and may be discharged from
obligations to comply with certain covenants contained in the Indenture and the
Securities and any Subsidiary Guarantee, in each case upon satisfaction of
certain conditions specified in the Indenture.


 


17.
Amendment; Supplement; Waiver.


 


     Subject
to certain exceptions, the Indenture, the Securities, any Subsidiary Guarantee
and the Security Documents may be amended or supplemented with the written
consent of the Holders of at least a majority in aggregate principal amount of
the Securities then outstanding,


 


B-7

















 


and any existing Default or Event of Default or
compliance with any provision may be waived with the consent of the
Holders of a majority in aggregate principal amount of the Securities then
outstanding. Without notice to or consent of any Holder, the parties thereto may amend
or supplement the Indenture, the Securities, the Subsidiary Guarantees and the
Security Documents to, among other things, cure any ambiguity, defect or
inconsistency, provide for uncertificated Securities in addition to or in place
of Physical Securities or comply with any requirements of the Commission in
connection with the qualification of the Indenture under the TIA, or make any
other change that does not materially and adversely affect the rights of any
Holder of a Security.


 


18.
Restrictive Covenants.


 


     The
Indenture contains certain covenants that, among other things, limit the
ability of the Issuer 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
Issuer to the Issuer, 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 Issuer must
annually report to the Trustee on compliance with such limitations.


 


19.
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 Securities then outstanding may declare
all the Securities to be due and payable immediately in the manner and with the
effect provided in the Indenture. Holders of Securities may not enforce
the Indenture, the Securities or any Subsidiary Guarantee except as provided in
the Indenture. The Trustee is not obligated to enforce the Indenture, the
Securities or the Subsidiary Guarantees, if any, 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 Securities then outstanding to direct the Trustee in its exercise
of any trust or power. The Trustee may withhold from Holders of Securities
notice of certain continuing Defaults or Events of Default if it determines
that withholding notice is in their interest.


 


20.
Trustee Dealings with Issuers.


 


     The
Trustee under the Indenture, in its individual or any other capacity, may become
the owner or pledgee of Securities and may otherwise deal with the Issuer,
their Subsidiaries or their respective Affiliates as if it were not the
Trustee.


 


21.
No Recourse Against Others.


 


     No
recourse for the payment of the principal of, premium, if any, or interest on
any of the Securities or for any claim based thereon or otherwise in respect
thereof, and no recourse under or upon any obligation, covenant or agreement of
any Obligor in the Indenture, or in any of the Securities or Subsidiary
Guarantees or because of the creation of any Indebtedness represented thereby,
shall be had against any incorporator, stockholder, officer, director, employee
or controlling person of the Issuer or any Subsidiary Guarantor or of any
successor Person thereof. Each Holder, by accepting the Securities, waives and
releases all such liability. The waiver and


 


B-8

















 


release are part of the consideration for the
issuance of the Securities. Such waiver may not be effective to waive
liabilities under the federal securities laws.


 


22. Authentication.


 


     This
Security shall not be valid until the Trustee or authenticating agent signs the
certificate of authentication on this Security.


 


23.
Abbreviations and Defined Terms.


 


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


 


24.
Governing Law.


 


     This
Security shall be governed by, and construed in accordance with, the laws of
the State of New York.


 


25.
CUSIP and ISIN Numbers.


 


     Pursuant
to a recommendation promulgated by the Committee on Uniform Security
Identification Procedures, the Issuer has caused CUSIP and ISIN numbers to be
printed on the Securities as a convenience to the Holders of the Securities. No
representation is made as to the accuracy of such numbers as printed on the
Securities and reliance may be placed only on the other identification
numbers printed hereon.


 


26.
Indenture.


 


     Each
Holder, by accepting a Security, agrees to be bound by all of the terms and
provisions of the Indenture and the Security Documents, as each may be
amended from time to time.


 


     The
Issuer shall furnish to any Holder of a Security upon written request and
without charge a copy of the Indenture which has the text of this Security in
larger type. Requests may be made to: Aventine Renewable Energy Holdings, Inc.,
1300 South 2nd Street, Pekin, Illinois 61555, Attn: President.


 


B-9

















 


ASSIGNMENT FORM


 


I
or we assign and transfer this Security 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 Security on the books of the Issuer. The agent may substitute
another to act for him. 


 


 


	
  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 guarantor

  	
   

  
	
   

  	
  program reasonably acceptable to the Trustee)

  	
   

  



 


B-10

















 


OPTION OF HOLDER TO ELECT
PURCHASE


 


     If you
want to elect to have this Security purchased by the Issuer pursuant to Section


 


     4.17, Section 4.18,
Section 4.23 or Section 4.24 of the Indenture, check the appropriate
box:


 


Section 4.17 o    Section 4.18 o    Section 4.23 o    Section 4.24 o


 


     If you
want to elect to have only part of this Security purchased by the Issuer
pursuant to Section 4.17, Section 4.18, Section 4.23 or Section 4.24
of the Indenture, state the amount: $                  


 


 


	
  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 guarantor

  	
   

  
	
   

  	
  program reasonably acceptable to the Trustee)

  	
   

  



 


B-11

















 


Exhibit C


 


Form of Certificate to
be

Delivered in Connection with 

Transfers to Non-QIB Accredited
Investors


 


[Date]                            


 


Attention:


 


	
  Re: Aventine Renewable Energy Holdings, Inc. 

  Senior Secured Floating Rate Notes due 2011 

  (the “Securities”)

  	
   

  



 


Ladies and Gentlemen:


 


     In
connection with our proposed purchase of the Securities of Aventine Renewable
Energy Holdings, Inc. (the “Issuer”), we confirm that:


 


     1. We
understand that any subsequent transfer of the Securities is subject to certain
restrictions and conditions set forth in the Indenture relating to the
Securities (as described in the Offering Memorandum) and the undersigned agrees
to be bound by, and not to resell, pledge or otherwise transfer the Securities
except in compliance with, such restrictions and conditions and the Securities
Act of 1933, as amended (the “Securities Act”).


 


     2. We
understand that the offer and sale of the Securities have not been registered
under the Securities Act, and that the Securities may not be offered or
sold except as permitted in the following sentence. We agree, on our own behalf
and on behalf of any accounts for which we are acting as hereinafter stated,
that if we should sell or otherwise transfer any Securities prior to the date
which is two years after the original issuance of the Securities, we will do so
only (i) to the Issuer or any of their subsidiaries, (ii) inside the
United States in accordance with Rule 144A under the Securities Act to a “qualified
institutional buyer” (as defined in Rule 144A under the Securities
Act), (iii) inside the United States to an institutional “accredited
investor” (as defined below) that, prior to such transfer, furnishes (or has
furnished on its behalf by a U.S. broker-dealer) to the Trustee (as defined in
the Indenture relating to the Securities), a signed letter containing certain
representations and agreements relating to the restrictions on transfer of the
Securities and, if such transfer is in respect of any aggregate principal
amount of Securities of less than $100,000, also furnishes an opinion of
counsel acceptable to the Issuer that such transfer complies with the
Securities Act, (iv) outside the United States in accordance with Rule 904
of Regulation S under the Securities Act, (v) pursuant to the exemption
from


 


C-1

















 


registration provided by Rule 144 under the
Securities Act (if available), or (vi) pursuant to an effective
registration statement under the Securities Act, and we further agree to
provide to any person purchasing any of the Securities from us a notice
advising such purchaser that resales of the Securities are restricted as stated
herein.


 


     3. We
understand that, on any proposed resale of any Securities, we will be required
to furnish to the Trustee and the Issuer such certification, legal opinions and
other information as the Trustee and the Issuer may reasonably require to
confirm that the proposed sale complies with the foregoing restrictions. We
further understand that the Securities purchased by us shall bear a legend to
the foregoing effect.


 


     4. We
are an institutional “accredited investor” (as defined in Rule 501(a)(1),
(2), (3) or (7) of Regulation D under the Securities Act) and have
such knowledge and experience in financial and business matters as to be
capable of evaluating the merits and risks of our investment in the Securities,
and we and any accounts for which we are acting are each able to bear the
economic risk of our or their investment, as the case may be.


 


     5. We
are acquiring the Securities purchased by us for our account or for one or more
accounts (each of which is an institutional “accredited investor”) as to
each of which we exercise sole investment discretion, and we are not acquiring
the Securities with a view to, or for offer or sale in connection with, any
distribution in violation of the Securities Act.


 


     6. The
principal amount of the Securities to which this Certificate relates is $                    .


 


     You and
the Issuer 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 proceeding or official inquiry with respect to the
matters covered hereby. 


 


	
   

  	
  Very truly yours,

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
   

  	
  Name:

  	
   

  
	
   

  	
   

  	
  Title:

  	
   

  



 


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Exhibit D


 


Form of Certificate to
Be

Delivered in Connection with

Transfers Pursuant to Regulation S 


 


	
  Wells Fargo Bank, N.A.

  	
  [Date]

  
	
  [Address]

  	
   

  



 


 


Attention:


 


	
  Re: Aventine Renewable Energy Holdings, Inc. 

  Senior Secured Floating Rate Notes due 2011 

  (the “Securities”)

  	
   

  



 


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


 


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


 


     (2) either
(a) at the time the buy offer 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, or (b) the transaction
was executed in, on or through the facilities of a designated off-shore
securities market and neither we nor any person acting on our behalf knows that
the transaction has been pre-arranged with a buyer in the United States;


 


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


 


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


 


     (5) we
have advised the transferee of the transfer restrictions applicable to the
Securities.


 


     You and
the Issuer 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


 


D-1

















 


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 Signature

  	
   

  



 


D-2

















 


Exhibit D-1


 


	
  To:

  	
  Wells Fargo Bank, N.A.

  
	
   

  	
  Attention: Corporate Trust Administration

  
	
  Re:

  	
  Aventine Renewable Energy Holdings, Inc.

  
	
   

  	
  Senior Secured Floating Rate Notes due 2011

  
	
   

  	
  (the “Securities”)

  
	
   

  	
  Issued under the Indenture (the “Indenture”)
  dated as

  
	
   

  	
  as of December 17, 2004 relating to the Securities

  



 


Ladies
and Gentlemen:


 


     This is
to certify that, based solely on certifications we have received in writing, by
tested telex or by electronic transmission from Institutions appearing in our
records as persons being entitled to a portion of the principal amount of
Securities represented by a Temporary Offshore Global Security issued under the
above-referenced Indenture, as of the date hereof, $            
principal amount of Securities represented by the Temporary Offshore Global
Security is being submitted herewith for exchange and is beneficially owned by
persons that are either (i) non-U.S. persons (within the meaning of
Regulation S under the Securities Act of 1933, as amended) or (ii) U.S.
persons that purchased the Securities in a transaction that did not require
registration under the Securities Act of 1933, as amended.


 


     We
further certify that (i) we are not submitting herewith for exchange any
portion of such Temporary Offshore Global Security excepted in such
certifications and (ii) as of the date hereof we have not received any
notification from any Institution to the effect that the statements made by
such Institution with respect to any portion of such Temporary Offshore Global
Security submitted herewith for exchange are no longer true and cannot be
relied upon as of the date hereof.


 


     You and
the Company are entitled to rely upon this Certificate and are irrevocably
authorized to produce this Certificate or a copy hereof to any interested party
in any administrative or legal proceeding or official inquiry with respect to
the matters covered hereby. 


 


 


	
   

  	
  Yours faithfully,

  
	
   

  	
   

  
	
   

  	
  [Name of DTC Participant]

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
   

  	
  Name:

  	
   

  
	
   

  	
   

  	
  Title:

  	
   

  
	
   

  	
   

  	
  Address:

  	
   

  



 


 


	
  Date:

  	
   

  	
   

  



 


D-3

















 


Exhibit E


 


GUARANTEE


 


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


 


     Capitalized
terms used but not defined herein shall have the meanings ascribed to them in
the Indenture dated as of December 17, 2004, among Aventine Renewable
Energy Holdings, Inc., a Delaware corporation (the “Issuer”), and
Wells Fargo Bank, N.A., as trustee (the “Trustee”).


 


     The
obligations of the undersigned to the Holders of Securities and to the Trustee
pursuant to this Subsidiary Guarantee and the Indenture are expressly set forth
in Article Eleven of the Indenture and reference is hereby made to the
Indenture for the precise terms of the Subsidiary Guarantee and all of the
other provisions of the Indenture to which this Subsidiary Guarantee relates.


 


     THIS
SUBSIDIARY GUARANTEE SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH,
THE LAWS OF THE STATE OF NEW YORK. The undersigned Guarantor hereby agrees to
submit to the jurisdiction of the courts of the State of New York in any action
or proceeding arising out of or relating to this Subsidiary Guarantee.


 


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


 


E-1

















 


     IN
WITNESS WHEREOF, the undersigned has caused this Subsidiary Guarantee to be
duly executed. 


 


	
   

  	
  SUBSIDIARY GUARANTOR

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
   

  	
  Name:

  	
   

  
	
   

  	
   

  	
  Title:

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
   

  	
  Name:

  	
   

  
	
   

  	
   

  	
  Title:

  	
   

  



 


E-2

















 


Exhibit F


 


 


Form of Escrow
Agreement


 


F-1

















 


Exhibit G


 


 


Form of Intercreditor
Agreement


 


G-1

















 


Exhibit H


 


 


Form of Mortgage


 


H-1

















 


Exhibit I


 


 


Form of Security
Agreement


 


I-1