Exhibit
4.4


 


 


 


THE WORNICK
COMPANY


 


(as Issuer)


 


$125,000,000

107/8% Senior Secured Notes due 2011


 


 










 


INDENTURE


 


Dated as of June
30, 2004


 










 


U.S. BANK NATIONAL
ASSOCIATION


 


(as Trustee)


 


 


 
















 


TABLE
OF CONTENTS


 


	
  ARTICLE
  I DEFINITIONS AND INCORPORATION BY REFERENCE

  	
  1

  
	
   

  	
  SECTION
  1.1

  	
  DEFINITIONS

  	
  1

  
	
   

  	
  SECTION 1.2

  	
  OTHER DEFINITIONS

  	
  31

  
	
   

  	
  SECTION
  1.3

  	
  INCORPORATION
  BY REFERENCE OF TRUST INDENTURE ACT

  	
  32

  
	
   

  	
  SECTION 1.4

  	
  RULES OF CONSTRUCTION

  	
  33

  
	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE
  II THE NOTES

  	
  33

  
	
   

  	
  SECTION 2.1

  	
  FORM AND DATING

  	
  33

  
	
   

  	
  SECTION 2.2

  	
  EXECUTION AND
  AUTHENTICATION

  	
  34

  
	
   

  	
  SECTION
  2.3

  	
  REGISTRAR,
  PAYING AGENT AND DEPOSITARY

  	
  35

  
	
   

  	
  SECTION
  2.4

  	
  PAYING
  AGENT TO HOLD MONEY IN TRUST

  	
  35

  
	
   

  	
  SECTION
  2.5

  	
  HOLDER
  LISTS

  	
  35

  
	
   

  	
  SECTION 2.6

  	
  TRANSFER AND EXCHANGE

  	
  36

  
	
   

  	
  SECTION 2.7

  	
  REPLACEMENT NOTES

  	
  50

  
	
   

  	
  SECTION 2.8

  	
  OUTSTANDING NOTES

  	
  51

  
	
   

  	
  SECTION 2.9

  	
  TREASURY NOTES

  	
  51

  
	
   

  	
  SECTION 2.10

  	
  TEMPORARY NOTES

  	
  51

  
	
   

  	
  SECTION 2.11

  	
  CANCELLATION

  	
  52

  
	
   

  	
  SECTION 2.12

  	
  DEFAULTED INTEREST

  	
  52

  
	
   

  	
  SECTION 2.13

  	
  CUSIP NUMBERS

  	
  53

  
	
   

  	
  SECTION 2.14

  	
  ISSUANCE OF
  ADDITIONAL NOTES

  	
  53

  
	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE
  III REDEMPTION

  	
  53

  
	
   

  	
  SECTION 3.1

  	
  NOTICES TO TRUSTEE

  	
  53

  
	
   

  	
  SECTION
  3.2

  	
  SELECTION
  OF NOTES TO BE REDEEMED

  	
  54

  
	
   

  	
  SECTION 3.3

  	
  NOTICE OF REDEMPTION

  	
  54

  
	
   

  	
  SECTION 3.4

  	
  EFFECT OF
  NOTICE OF REDEMPTION

  	
  55

  
	
   

  	
  SECTION 3.5

  	
  DEPOSIT OF
  REDEMPTION PRICE

  	
  55

  
	
   

  	
  SECTION 3.6

  	
  NOTES REDEEMED IN
  PART

  	
  56

  
	
   

  	
  SECTION 3.7

  	
  OPTIONAL REDEMPTION

  	
  56

  
	
   

  	
  SECTION 3.8

  	
  NO MANDATORY
  REDEMPTION

  	
  57

  
	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE
  IV COVENANTS

  	
  57

  
	
   

  	
  SECTION 4.1

  	
  PAYMENT OF NOTES

  	
  57

  
	
   

  	
  SECTION 4.2

  	
  MAINTENANCE
  OF OFFICE OR AGENCY

  	
  57

  
	
   

  	
  SECTION
  4.3

  	
  COMMISSION
  REPORTS AND REPORTS TO HOLDERS

  	
  58

  
	
   

  	
  SECTION 4.4

  	
  COMPLIANCE
  CERTIFICATE

  	
  58

  
	
   

  	
  SECTION 4.5

  	
  TAXES

  	
  59

  
	
   

  	
  SECTION 4.6

  	
  STAY,
  EXTENSION AND USURY LAWS

  	
  59

  
	
   

  	
  SECTION
  4.7

  	
  LIMITATION
  ON INCURRENCE OF ADDITIONAL INDEBTEDNESS AND  DISQUALIFIED CAPITAL STOCK

  	
  59

  
	
   

  	
  SECTION
  4.8

  	
  LIMITATION
  ON LIENS SECURING INDEBTEDNESS

  	
  61

  
	
   

  	
  SECTION
  4.9

  	
  LIMITATION
  ON RESTRICTED PAYMENTS

  	
  61

  



 
















 


	
   

  	
  SECTION
  4.10

  	
  LIMITATION
  ON DIVIDEND AND OTHER PAYMENT RESTRICTIONS AFFECTING SUBSIDIARIES

  	
  64

  
	
   

  	
  SECTION
  4.11

  	
  LIMITATION
  ON IMPAIRMENT OF SECURITY INTERESTS

  	
  66

  
	
   

  	
  SECTION
  4.12

  	
  LIMITATION
  ON TRANSACTIONS WITH AFFILIATES

  	
  66

  
	
   

  	
  SECTION
  4.13

  	
  LIMITATION
  ON SALE OF ASSETS AND SUBSIDIARY STOCK

  	
  67

  
	
   

  	
  SECTION
  4.14

  	
  REPURCHASE
  OF NOTES AT THE OPTION OF THE HOLDER UPON A CHANGE OF CONTROL

  	
  70

  
	
   

  	
  SECTION 4.15

  	
  SUBSIDIARY
  GUARANTORS

  	
  72

  
	
   

  	
  SECTION
  4.16

  	
  LIMITATION
  ON STATUS AS INVESTMENT COMPANY

  	
  72

  
	
   

  	
  SECTION
  4.17

  	
  MAINTENANCE
  OF PROPERTIES AND INSURANCE

  	
  72

  
	
   

  	
  SECTION 4.18

  	
  CORPORATE EXISTENCE

  	
  73

  
	
   

  	
  SECTION
  4.19

  	
  LIMITATION
  ON LINES OF BUSINESS

  	
  73

  
	
   

  	
  SECTION 4.20

  	
  RULE 144A
  INFORMATION

  	
  73

  
	
   

  	
  SECTION 4.21

  	
  ADDITIONAL
  COLLATERAL

  	
  73

  
	
   

  	
  SECTION
  4.22

  	
  REPURCHASE
  OF NOTES AT THE OPTION OF THE HOLDER FROM EXCESS CASH FLOW

  	
  73

  
	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE
  V SUCCESSORS

  	
  74

  
	
   

  	
  SECTION
  5.1

  	
  LIMITATION
  ON MERGER, SALE OR CONSOLIDATION

  	
  74

  
	
   

  	
  SECTION
  5.2

  	
  SUCCESSOR
  CORPORATION SUBSTITUTED

  	
  75

  
	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE VI DEFAULTS
  AND REMEDIES

  	
  76

  
	
   

  	
  SECTION 6.1

  	
  EVENTS OF DEFAULT

  	
  76

  
	
   

  	
  SECTION
  6.2

  	
  ACCELERATION

  	
  78

  
	
   

  	
  SECTION
  6.3

  	
  OTHER
  REMEDIES

  	
  79

  
	
   

  	
  SECTION 6.4

  	
  WAIVER OF DEFAULTS

  	
  79

  
	
   

  	
  SECTION 6.5

  	
  CONTROL BY MAJORITY

  	
  79

  
	
   

  	
  SECTION 6.6

  	
  LIMITATION ON SUITS

  	
  80

  
	
   

  	
  SECTION 6.7

  	
  RIGHTS OF HOLDERS OF NOTES TO RECEIVE
  PAYMENT

  	
  80

  
	
   

  	
  SECTION 6.8

  	
  COLLECTION SUIT BY TRUSTEE

  	
  80

  
	
   

  	
  SECTION 6.9

  	
  TRUSTEE MAY FILE PROOFS OF CLAIM

  	
  81

  
	
   

  	
  SECTION
  6.10

  	
  PRIORITIES

  	
  81

  
	
   

  	
  SECTION 6.11

  	
  UNDERTAKING FOR COSTS

  	
  82

  
	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE
  VII TRUSTEE

  	
  82

  
	
   

  	
  SECTION
  7.1

  	
  DUTIES
  OF TRUSTEE

  	
  82

  
	
   

  	
  SECTION
  7.2

  	
  RIGHTS
  OF TRUSTEE

  	
  83

  
	
   

  	
  SECTION 7.3

  	
  INDIVIDUAL RIGHTS OF TRUSTEE

  	
  85

  
	
   

  	
  SECTION 7.4

  	
  TRUSTEE’S DISCLAIMER

  	
  85

  
	
   

  	
  SECTION 7.5

  	
  NOTICE OF DEFAULTS

  	
  85

  
	
   

  	
  SECTION 7.6

  	
  REPORTS BY TRUSTEE TO HOLDERS OF THE NOTES

  	
  85

  
	
   

  	
  SECTION 7.7

  	
  COMPENSATION AND INDEMNITY

  	
  86

  
	
   

  	
  SECTION 7.8

  	
  REPLACEMENT OF TRUSTEE

  	
  87

  
	
   

  	
  SECTION 7.9

  	
  SUCCESSOR TRUSTEE BY MERGER, ETC.

  	
  88

  
	
   

  	
  SECTION 7.10

  	
  ELIGIBILITY; DISQUALIFICATION

  	
  88

  
	
   

  	
  SECTION 7.11

  	
  PREFERENTIAL COLLECTION OF CLAIMS AGAINST
  ISSUER

  	
  88

  



 


ii
















 


	
  ARTICLE
  VIII LEGAL DEFEASANCE AND COVENANT DEFEASANCE

  	
  88

  
	
   

  	
  SECTION 8.1

  	
  OPTION TO EFFECT LEGAL DEFEASANCE OR
  COVENANT DEFEASANCE

  	
  88

  
	
   

  	
  SECTION
  8.2

  	
  LEGAL
  DEFEASANCE

  	
  88

  
	
   

  	
  SECTION 8.3

  	
  COVENANT DEFEASANCE

  	
  89

  
	
   

  	
  SECTION 8.4

  	
  CONDITIONS TO LEGAL OR COVENANT DEFEASANCE

  	
  90

  
	
   

  	
  SECTION 8.5

  	
  DEPOSITED MONEY AND GOVERNMENT SECURITIES
  TO BE HELD IN TRUST; OTHER MISCELLANEOUS PROVISIONS

  	
  91

  
	
   

  	
  SECTION 8.6

  	
  REPAYMENT TO ISSUER

  	
  92

  
	
   

  	
  SECTION
  8.7

  	
  REINSTATEMENT

  	
  92

  
	
   

  	
  SECTION 8.8

  	
  SATISFACTION AND DISCHARGE

  	
  93

  
	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE IX
  AMENDMENT, SUPPLEMENT AND WAIVER

  	
  94

  
	
   

  	
  SECTION 9.1

  	
  WITH CONSENT OF HOLDERS OF A MAJORITY

  	
  94

  
	
   

  	
  SECTION 9.2

  	
  WITH CONSENT OF ALL AFFECTED HOLDERS OF
  NOTES OR A SUPERMAJORITY

  	
  94

  
	
   

  	
  SECTION 9.3

  	
  WITHOUT CONSENT OF HOLDERS OF NOTES

  	
  96

  
	
   

  	
  SECTION 9.4

  	
  CONSENT PAYMENT; SUPPLEMENTAL INDENTURES

  	
  96

  
	
   

  	
  SECTION 9.5

  	
  REVOCATION AND EFFECT OF CONSENTS

  	
  97

  
	
   

  	
  SECTION 9.6

  	
  NOTATION ON OR EXCHANGE OF NOTES

  	
  97

  
	
   

  	
  SECTION 9.7

  	
  TRUSTEE TO SIGN AMENDMENTS, ETC.

  	
  98

  
	
   

  	
  SECTION 9.8

  	
  COMPLIANCE WITH TRUST INDENTURE ACT

  	
  98

  
	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE X COLLATERAL
  AND SECURITY

  	
  98

  
	
   

  	
  SECTION 10.1

  	
  COLLATERAL AGREEMENTS; SECURITY INTERESTS.

  	
  98

  
	
   

  	
  SECTION 10.2

  	
  FURTHER ASSURANCES AND SECURITY.

  	
  100

  
	
   

  	
  SECTION
  10.3

  	
  OPINIONS.

  	
  100

  
	
   

  	
  SECTION 10.4

  	
  RELEASE OF COLLATERAL.

  	
  101

  
	
   

  	
  SECTION 10.5

  	
  CERTIFICATES OF THE ISSUER.

  	
  102

  
	
   

  	
  SECTION 10.6

  	
  AUTHORIZATION OF ACTIONS TO BE TAKEN BY
  THE TRUSTEE UNDER THE COLLATERAL AGREEMENTS.

  	
  102

  
	
   

  	
  SECTION 10.7

  	
  AUTHORIZATION OF RECEIPT OF FUNDS BY THE
  TRUSTEE UNDER THE COLLATERAL AGREEMENTS.

  	
  103

  
	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE XI Guarantees

  	
  103

  
	
   

  	
  SECTION
  11.1

  	
  GUARANTEES

  	
  103

  
	
   

  	
  SECTION 11.2

  	
  EXECUTION AND DELIVERY OF GUARANTEES 

  	
  104

  
	
   

  	
  SECTION 11.3

  	
  GUARANTORS MAY CONSOLIDATE, ETC., ON
  CERTAIN TERMS

  	
  105

  
	
   

  	
  SECTION 11.4

  	
  GUARANTEE BY FUTURE SUBSIDIARIES

  	
  106

  
	
   

  	
  SECTION 11.5

  	
  RELEASE OF GUARANTORS

  	
  106

  
	
   

  	
  SECTION 11.6

  	
  LIMITATION OF GUARANTOR’S LIABILITY;
  CERTAIN BANKRUPTCY  EVENTS

  	
  107

  
	
   

  	
  SECTION 11.7

  	
  APPLICATION OF CERTAIN TERMS AND
  PROVISIONS TO THE  GUARANTORS

  	
  108

  



 


iii
















 


	
  ARTICLE XII MISCELLANEOUS

  	
  108

  
	
   

  	
  SECTION 12.1

  	
  TRUST INDENTURE ACT CONTROLS

  	
  108

  
	
   

  	
  SECTION
  12.2

  	
  NOTICES

  	
  108

  
	
   

  	
  SECTION 12.3

  	
  COMMUNICATION BY HOLDERS OF NOTES WITH
  OTHER HOLDERS OF  NOTES

  	
  110

  
	
   

  	
  SECTION 12.4

  	
  CERTIFICATE AND OPINION AS TO CONDITIONS
  PRECEDENT

  	
  110

  
	
   

  	
  SECTION 12.5

  	
  STATEMENTS REQUIRED IN CERTIFICATE OR
  OPINION

  	
  110

  
	
   

  	
  SECTION 12.6

  	
  RULES BY TRUSTEE AND AGENTS

  	
  111

  
	
   

  	
  SECTION 12.7

  	
  NO PERSONAL LIABILITY OF DIRECTORS,
  OFFICERS, EMPLOYEES AND STOCKHOLDERS

  	
  111

  
	
   

  	
  SECTION
  12.8

  	
  GOVERNING
  LAW

  	
  111

  
	
   

  	
  SECTION 12.9

  	
  NO ADVERSE INTERPRETATION OF OTHER
  AGREEMENTS

  	
  111

  
	
   

  	
  SECTION
  12.10

  	
  SUCCESSORS

  	
  111

  
	
   

  	
  SECTION 12.11

  	
  SEVERABILITY

  	
  112

  
	
   

  	
  SECTION 12.12

  	
  COUNTERPART ORIGINALS

  	
  112

  
	
   

  	
  SECTION 12.13

  	
  TABLE OF CONTENTS, HEADINGS, ETC.

  	
  112

  
	
   

  	
  SECTION 12.14

  	
  INTERCREDITOR AGREEMENT

  	
  112

  



 


EXHIBITS


 


	
  EXHIBIT A

  	
   

  	
  FORM OF NOTE

  
	
   

  	
   

  	
   

  
	
  EXHIBIT B

  	
   

  	
  FORM OF
  CERTIFICATE OF TRANSFER

  
	
   

  	
   

  	
   

  
	
  EXHIBIT C

  	
   

  	
  FORM OF
  CERTIFICATE OF EXCHANGE

  
	
   

  	
   

  	
   

  
	
  EXHIBIT D

  	
   

  	
  FORM OF
  CERTIFICATE FROM ACQUIRING INSTITUTIONAL ACCREDITED INVESTOR

  
	
   

  	
   

  	
   

  
	
  EXHIBIT E

  	
   

  	
  FORM OF
  SUPPLEMENTAL INDENTURE TO BE DELIVERED BY SUBSEQUENT GUARANTORS

  
	
   

  	
   

  	
   

  
	
  EXHIBIT F

  	
   

  	
  FORM OF
  INTERCREDITOR AGREEMENT

  



 


iv
















 


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; 12.2

  
	
  (c)

  	
   

  	
   

  	
  N.A.

  
	
  311(a)

  	
   

  	
   

  	
  7.11

  
	
  (b)

  	
   

  	
   

  	
  7.11

  
	
  (c)

  	
   

  	
   

  	
  N.A.

  
	
  312(a)

  	
   

  	
   

  	
  2.5

  
	
  (b)

  	
   

  	
   

  	
  12.3

  
	
  (c)

  	
   

  	
   

  	
  12.3

  
	
  313(a)

  	
   

  	
   

  	
  7.6

  
	
  (b)(1)

  	
   

  	
   

  	
  N.A.

  
	
  (b)(2)

  	
   

  	
   

  	
  7.6, 7.7

  
	
  (c)

  	
   

  	
   

  	
  7.5, 7.6; 12.2

  
	
  (d)

  	
   

  	
   

  	
  7.6

  
	
  314(a)

  	
   

  	
   

  	
  4.3; 4.4; 12.2

  
	
  (b)

  	
   

  	
   

  	
  N.A.

  
	
  (c)(1)

  	
   

  	
   

  	
  12.4

  
	
  (c)(2)

  	
   

  	
   

  	
  12.4

  
	
  (c)(3)

  	
   

  	
   

  	
  N.A.

  
	
  (d)

  	
   

  	
   

  	
  10.5

  
	
  (e)

  	
   

  	
   

  	
  12.5

  
	
  (f)

  	
   

  	
   

  	
  N.A.

  
	
  315(a)

  	
   

  	
   

  	
  7.1(b)

  
	
  (b)

  	
   

  	
   

  	
  7.5; 12.2

  
	
  (c)

  	
   

  	
   

  	
  7.1(a)

  
	
  (d)

  	
   

  	
   

  	
  7.1(c)

  
	
  (e)

  	
   

  	
   

  	
  6.11

  
	
  316(a)(last sentence)

  	
   

  	
   

  	
  2.9

  
	
  (a)(1)(A)

  	
   

  	
   

  	
  6.5

  
	
  (a)(1)(B)

  	
   

  	
   

  	
  6.4

  
	
  (a)(2)

  	
   

  	
   

  	
  N.A.

  
	
  (b)

  	
   

  	
   

  	
  6.7

  
	
  (c)

  	
   

  	
   

  	
  6.3

  
	
  317(a)(1)

  	
   

  	
   

  	
  6.8

  
	
  (a)(2)

  	
   

  	
   

  	
  6.9

  
	
  (b)

  	
   

  	
   

  	
  2.4

  
	
  318(a)

  	
   

  	
   

  	
  12.1

  
	
  (c)

  	
   

  	
   

  	
  12.1

  











N.A. means not applicable


 


*             
This Cross-Reference table shall not, for any purpose, be deemed to be part of
this Indenture.


 


v
















 


INDENTURE, dated as of
June 30, 2004, among The Wornick Company, a Delaware corporation (the “Issuer,” which term includes any
successors under the Indenture), the Guarantors (as defined herein), and U.S.
Bank National Association (the “Trustee”).


 


Each party agrees as
follows for the benefit of each other and for the equal and ratable benefit of
the Holders of the 107/8% Series
A Senior Secured Notes due 2011 (the “Series
A Notes”) and the 107/8% Series B Senior Secured Notes
due 2011 (the “Series B Notes,”
and together with the Series A Notes, the “Notes”):


 


ARTICLE I

DEFINITIONS AND INCORPORATION

BY REFERENCE


 


Section 1.1                                     
DEFINITIONS


 


“144A Global Note” means one or more Global
Notes bearing the Private Placement Legend that shall be issued in an aggregate
amount of denominations equal in total to the outstanding principal amount of
the Notes sold in reliance on Rule 144A.


 


“501 Global Note” means one or more Global
Notes bearing the Private Placement Legend that shall be issued in an aggregate
amount of denominations equal in total to the outstanding principal amount of
the Notes sold to institutional “accredited investors” within the meaning of
Rule 501(a)(1), (2), (3), or (7) under the Securities Act.


 


“Accrued Bankruptcy Interest” means, with
respect to any Indebtedness, all interest accruing thereon after the filing of
a petition by or against the Issuer or any of the Subsidiaries or any parent
under any Bankruptcy Law, in accordance with and at the rate (including any
rate applicable upon any default or event of default, to the extent lawful)
specified in the documents evidencing or governing such Indebtedness, whether
or not the claim for such interest is allowed as a claim after such filing in
any proceeding under such Bankruptcy Law.


 


“Acquired Indebtedness” means Indebtedness
(including Disqualified Capital Stock) of any Person existing at the time such
Person becomes a Subsidiary of the Issuer, including by designation, or is
merged or consolidated into or with the Issuer or one of its Subsidiaries.


 


“Acquisition” means the purchase or other
acquisition of any Person or all or substantially all the assets of any Person
by any other Person, whether by purchase, merger, consolidation, or other
transfer, and whether or not for consideration.


 


“Additional Notes” means additional Notes
which may be issued after the Issue Date pursuant to this Indenture (other than
pursuant to an Exchange Offer or otherwise in exchange for or in replacement of
outstanding Notes).  All references herein to “Notes” shall be deemed to
include Additional Notes.


 


1
















 


“Affiliate” of any specified Person means
any other Person directly or indirectly controlling or controlled by or under
direct or indirect common control with such specified Person.  For
purposes of this definition, “control” (including, with correlative meanings,
the terms “controlling,” “controlled by” and “under common control with”), as
used with respect to any Person, shall mean (a) the possession, directly or
indirectly, of the power to direct or cause the direction of the management or
policies of such Person, whether through the ownership of voting securities, by
agreement or otherwise or (b) beneficial ownership of 10% or more of the
voting securities of such Person.  Notwithstanding the foregoing,
“Affiliate” shall not include Wholly Owned Subsidiaries.


 


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


 


“Applicable Procedures” means, with respect
to any transfer or exchange of or for beneficial interests in any Global Note,
the rules and procedures of the Depositary, Euroclear and Clearstream that
apply to such transfer or exchange at the relevant time.


 


“Applicable Value” means the greatest of
the aggregate principal amount, par value, book value as carried by the Issuer
or market value, as applicable, of Capital Stock, securities or other payment
rights of a Subsidiary.


 


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


 


“Bankruptcy Code” means the United States
Bankruptcy Code, codified at 11 U.S.C. § 101-1330, as amended.


 


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


 


“Beneficial Owner” or “beneficial owner” for purposes of the
definitions of “Change of Control” and “Affiliate” has the meaning attributed
to it in Rules 13d-3 and 13d-5 under the Exchange Act (as in effect on the
Issue Date).


 


“Board of Directors” means, with respect to
any Person, the board of directors of such Person (or if such Person is not a
corporation, the equivalent board of managers or members or body performing
similar functions for such Person) or any committee of the board of directors
of such Person (or if such Person is not a corporation, any committee of the
equivalent board of managers or members or body performing similar functions
for such Person) authorized, with respect to any particular matter, to exercise
the power of the board of directors of such Person (or if such Person is not a
corporation, the equivalent board of managers or members or body performing
similar functions for such Person).


 


2
















 


“Broker-Dealer” means any broker-dealer
that receives Exchange Notes for its own account in the Exchange Offer in
exchange for Notes that were acquired by such broker-dealer as a result of
market-making or other trading activities.


 


“Business Day” means each Monday, Tuesday,
Wednesday, Thursday and Friday which is not a day on which banking institutions
in New York, New York are authorized or obligated by law or other government
action to close.


 


“Capital Contribution” means any
contribution to the equity of the Issuer from a direct or indirect parent of
the Issuer for which no consideration has been given other than the issuance of
Qualified Capital Stock.


 


“Capital Stock” means, (i) with
respect to any Person that is a corporation, any and all shares, interests,
participations, rights or other equivalents (however designated) of corporate
stock issued by such Person, (ii) with respect to a Person that is a
limited liability company, any and all membership interests in such Person, and
(iii) with respect to any other Person, any and all partnership, joint
venture or other equity interests of such Person.


 


“Capitalized Lease Obligation” means, as to
any Person, the obligations of such Person under a lease that are required to
be classified and accounted for as capital lease obligations under GAAP and,
for purposes of this definition, the amount of such obligations at any date
shall be the capitalized amount of such obligations at such date, determined in
accordance with GAAP.


 


“Cash Equivalent” means:


 


(1)                                 
securities issued or
directly and fully guaranteed or insured by the United States of America or any
agency or instrumentality thereof (provided,
that the full faith and credit of the United States of America is pledged in
support thereof),


 


(2)                                 
marketable direct
obligations issued by any state of the United States of America or any
political subdivision of any such state or any public instrumentality thereof
having, at the time of acquisition, one of the two highest ratings obtainable
from either S&P or Moody’s,


 


(3)                                 
time deposits,
certificates of deposit, bankers’ acceptances and commercial paper issued by
the parent corporation of any domestic commercial bank of recognized standing having
capital and surplus in excess of $500,000,000,


 


(4)                                 
commercial paper
issued by others rated at least A-2 or the equivalent thereof by S&P or at
least P-2 or the equivalent thereof by Moody’s,


 


(5)                                 
repurchase
obligations with a term of not more than seven days for underlying securities
of the types described in (1) and (2) above entered into with any financial
institution meeting the qualifications specified in (3) above,


 


3
















 


(6)                                 
money market funds,
substantially all of the assets of which constitute Cash Equivalents of the
kinds described in (1) through (5) of this definition,


 


and in the case of each of (1), (2), (3) and (4)
maturing within one year after the date of  acquisition.


 


“Change of Control” means:


 


(1)                                 
prior to consummation
of an Initial Public Offering, the Principal and its Related Parties shall
(A) cease to be entitled, by beneficial ownership of the Voting Equity
Interests of the Issuer, contract or otherwise, to elect or designate for
election a majority of the Issuer’s Board of Directors or (B) cease to
beneficially own more than 50% of the aggregate voting power of the Voting
Equity Interests of the Issuer;


 


(2)                                 
the Issuer adopts a
plan of liquidation;


 


(3)                                 
after the first
Initial Public Offering, (A) any “person” (including any group that is
deemed to be a “person”) (other than the Principal and its Related Parties) is
or becomes the beneficial owner, directly or indirectly, of more than 35% of
the aggregate voting power of the Voting Equity Interests of the Issuer, and
(B) one or more of the Principal and its Related Parties beneficially own,
directly or indirectly, in the aggregate a lesser percentage of the aggregate
voting power of the Voting Equity Interests of the Issuer than such other
person and do not have the right or ability by voting power, contract or
otherwise to elect or designate for election a majority of the Issuer’s Board
of Directors;


 


(4)                                 
the Continuing
Directors cease for any reason to constitute a majority of the Issuer’s Board
of Directors then in office; or


 


(5)                                 
any merger or
consolidation of the Issuer with or into another person or the merger of
another person with or into the Issuer, or the sale of all or substantially all
of the Issuer’s assets (determined on a consolidated basis) to another person
(other than, in all such cases, one or more of the Principal and its Related
Parties) other than, with respect to this clause (5), a transaction in
which the holders of securities that represented 100% of the aggregate voting
power of the Issuer’s Voting Equity Interests immediately prior to such
transaction own directly or indirectly at least a majority of the aggregate
voting power of the Voting Equity Interests of the surviving person in such
merger or consolidation or the transferee of such assets immediately after such
transaction or have the right or ability by voting power, contract or otherwise
to elect or designate for election a majority of the Issuer’s Board of
Directors.


 


As used in this
definition, “person” (including
any group that is deemed to be a “person”)
has the meaning given by Section 13(d) of the Exchange Act, whether or not
applicable.


 


4
















 


“Clearstream” means Clearstream Banking
Luxembourg, Société Anonyme, or any successor securities clearing agency.


 


“Code” means the Internal Revenue Code of
1986, as amended.


 


“Collateral” means all assets and other
property, whether now owned or hereafter acquired, upon which a Lien securing
the Obligations is granted or purported to be granted under any Collateral
Agreement.


 


“Collateral Agreements” means,
collectively, all mortgages, deeds of trust, security agreements, pledge
agreements, control agreements, collateral assignment agreements and other
agreements, instruments, financing statements and other documents evidencing,
creating, setting forth or limiting any Lien on Collateral in favor of the
Trustee (or, in the case of mortgages, deeds of trust or similar agreements, in
favor of the Trustee or another trustee thereunder), for the benefit of the
Holders.


 


“Commission” means the Securities and
Exchange Commission.


 


“consolidated” means, with respect to the
Issuer, the consolidation of the accounts of the Subsidiaries with those of the
Issuer, all in accordance with GAAP; provided,
that “consolidated” will not
include consolidation of the accounts of any Unrestricted Subsidiary with the
accounts of the Issuer.


 


“Consolidated Coverage Ratio” of any Person
on any date of determination (the “Transaction
Date”) means the ratio, on a pro
forma basis, of (a) the aggregate amount of Consolidated EBITDA
of such Person attributable to continuing operations and businesses (exclusive
of amounts attributable to operations and businesses permanently discontinued
or disposed of) for the Reference Period to (b) the aggregate Consolidated
Fixed Charges of such Person (exclusive of amounts attributable to operations
and businesses permanently discontinued or disposed of, but only to the extent
that the obligations giving rise to such Consolidated Fixed Charges would no
longer be obligations contributing to such Person’s Consolidated Fixed Charges
subsequent to the Transaction Date) during the Reference Period; provided, that for purposes of such
calculation:


 


(1)                                 
Acquisitions which
occurred during the Reference Period or subsequent to the Reference Period and
on or prior to the Transaction Date shall be assumed to have occurred on the
first day of the Reference Period,


 


(2)                                 
transactions giving
rise to the need to calculate the Consolidated Coverage Ratio shall be assumed
to have occurred on the first day of the Reference Period,


 


(3)                                 
the incurrence of any
Indebtedness (including issuance of any Disqualified Capital Stock) during the
Reference Period or subsequent to the Reference Period and on or prior to the
Transaction Date (and the application of the proceeds therefrom to the extent
used to refinance or retire other Indebtedness (other than Indebtedness
incurred under any revolving credit


 


5
















 


agreement or similar facility)) shall be assumed to
have occurred on the first day of the Reference Period, and


 


(4)                                 
the Consolidated
Fixed Charges of such Person attributable to interest on any Indebtedness or
dividends on any Disqualified Capital Stock bearing a floating interest (or
dividend) rate shall be computed on a pro
forma basis as if the average rate in effect from the beginning of
the Reference Period to the Transaction Date had been the applicable rate for the
entire period, provided, that if
such Person or any of its Subsidiaries is a party to an Interest Swap or
Hedging Obligation (which shall remain in effect for the 12-month period
immediately following the Transaction Date) that has the effect of fixing the
interest rate on the date of computation, then such rate (whether higher or
lower) shall be used.


 


“Consolidated EBITDA” means, with respect
to any Person, for any period, the Consolidated Net Income of such Person for
such period, adjusted to add thereto (to the extent deducted from net revenues
in determining Consolidated Net Income), without duplication, the sum of:


 


(1)                                 
consolidated income
tax expense,


 


(2)                                 
consolidated
depreciation and amortization expense,


 


(3)                                 
Consolidated Fixed
Charges,


 


(4)                                 
any non-recurring
restructuring and extraordinary charges (as determined in accordance with
GAAP),


 


(5)                                 
Management Fees,


 


(6)                                 
Non-Cash ESOP
Compensation Charges, and


 


(7)                                 
all other non-cash
charges reducing Consolidated Net Income for such period but excluding non-cash
charges that require an accrual of or a reserve for cash charges for any future
periods and normally occurring accruals such as reserves for accounts
receivable, and


 


less the amount of all cash payments made by such
Person or any of its Subsidiaries during such period to the extent such
payments relate to non-cash charges that were added back in determining
Consolidated EBITDA for such period or any prior period; provided, that
consolidated income tax expense and depreciation and amortization of a
Subsidiary that is a less than Wholly Owned Subsidiary shall only be added to
the extent of the equity interest of the Issuer in such Subsidiary.


 


“Consolidated Fixed Charges” of any Person
means, for any period, the aggregate amount (without duplication and determined
in each case in accordance with GAAP) of:


 


6
















 


(a)                                 
interest expensed or
capitalized, paid, accrued, or scheduled to be paid or accrued (including, in
accordance with the following sentence, interest attributable to Capitalized
Lease Obligations) of such Person and its Consolidated Subsidiaries during such
period, including (1) original issue discount and non-cash interest payments or
accruals on any Indebtedness, (2) the interest portion of all deferred
payment obligations, and (3) all commissions, discounts and other fees and
charges owed with respect to bankers’ acceptances and letters of credit
financings and currency and Interest Swap and Hedging Obligations, in each case
to the extent attributable to such period, and


 


(b)                                
the product of
(i) the amount of cash dividends accrued or payable (or guaranteed) by
such Person or any of its Consolidated Subsidiaries in respect of Preferred
Stock (other than by Subsidiaries to the Issuer or to the Issuer’s Wholly Owned
Subsidiaries) times (ii) 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 estimated in good faith by the Issuer).


 


For purposes of this definition, (x) interest on
a Capitalized Lease Obligation shall be deemed to accrue at an interest rate
reasonably determined in reasonable good faith by the Issuer to be the rate of
interest implicit in such Capitalized Lease Obligation in accordance with GAAP
and (y) interest expense attributable to any Indebtedness represented by
the guarantee by such Person or a Subsidiary of such Person of an obligation of
another Person shall be deemed to be the interest expense attributable to the
Indebtedness guaranteed.


 


“Consolidated Net Income” means, with
respect to any specified Person for any period, the net income (or loss) of
such specified Person and its Consolidated Subsidiaries (determined on a
consolidated basis in accordance with GAAP) for such period, adjusted to
exclude (only to the extent included in computing such net income (or loss) and
without duplication):


 


(a)                                 
all gains or losses
which are either extraordinary (as determined in accordance with GAAP) or are
unusual and nonrecurring (including any gain or loss from the sale or other
disposition of assets outside the ordinary course of business or from the
issuance or sale of any Capital Stock),


 


(b)                                
the net income or
loss of any Person acquired in a pooling of interests transaction for any
period prior to the date of such acquisition,


 


(c)                                 
the net income, if
positive, of any Person, other than a Consolidated Subsidiary, in which such
specified Person or any of its Consolidated Subsidiaries has an interest,
except to the extent of the amount of any dividends or distributions actually
paid in cash to such specified Person or a Consolidated Subsidiary of such
specified Person during such period, but in


 


7
















 


any case not in excess of such Person’s pro rata share of such Person’s net income
for such period,


 


(d)                                
the net income, if
positive, of any of such specified Person’s Consolidated Subsidiaries to the
extent that the declaration or payment of dividends or similar distributions is
not at the time permitted by operation of the terms of its charter or bylaws or
any other agreement, instrument, judgment, decree, order, statute, rule or
governmental regulation applicable to such Consolidated Subsidiary, and


 


(e)                                 
the net income of any
Person that is an Unrestricted Subsidiary, except to the extent of cash
dividends or distributions paid to such specified Person or a Subsidiary of the
specified Person by such Person.


 


“Consolidated Net Worth” of any Person at
any date means the aggregate consolidated stockholders’ equity of such Person
(including amounts of equity attributable to Preferred Stock) and its
Consolidated Subsidiaries, as would be shown on the consolidated balance sheet
of such Person prepared in accordance with GAAP, adjusted to exclude (to the
extent included in calculating such equity) the amount of any such stockholders’
equity attributable to Disqualified Capital Stock or treasury stock of such
Person and its Consolidated Subsidiaries


 


“Consolidated Subsidiary” means, for any
Person, each Subsidiary of such Person (whether now existing or hereafter
created or acquired) the financial statements of which are consolidated for
financial statement reporting purposes with the financial statements of such
Person in accordance with GAAP.


 


“Continuing Director” means during any
period of 24 consecutive months after the Issue Date, individuals who at the
beginning of any such 24-month period constituted the Issuer’s Board of
Directors (together with any new directors whose election by the Issuer’s Board
of Directors or whose nomination for election by the shareholders of the Issuer
was approved by a vote of a majority of the directors then still in office who
were either directors at the beginning of such period or whose election or
nomination for election was previously so approved, including new directors
designated in or provided for in an agreement regarding the merger,
consolidation or sale, transfer or other conveyance, of all or substantially
all of the assets of the Issuer, if such agreement was approved by a vote of
such majority of directors).


 


“contractually subordinated” means
subordinated in right of payment by its terms or the terms of any document or
instrument or instrument relating thereto.  For the avoidance of doubt,
unsecured Indebtedness is not “contractually subordinated” to secured
Indebtedness and a junior Lien on any assets securing Indebtedness does not
render such Indebtedness “contractually subordinated” to Indebtedness that is
secured by a senior Lien on such assets.


 


“Corporate Trust Office” means the
principal office of the Trustee at which at any time its corporate trust
business shall be principally administered, which office at the


 


8
















 


dated hereof is located at 60 Livingston Avenue, St.
Paul, Minnesota 55107-2292, Attention:  Corporate Trust Administration, or
such other address as the Trustee may designate from time to time by notice to
the Holders and the Issuer, or the principal corporate trust office of any
successor Trustee (or such other address as such successor Trustee may
designate from time to time by notice to the Holders and the Issuer).


 


“Credit Agreement” means the Credit
Agreement to be entered into by the Issuer, as of the Issue Date, including any
related notes, guarantees, collateral documents, instruments and agreements
executed in connection therewith, as such credit agreement and/or related
documents may be amended, restated, supplemented, renewed, replaced or
otherwise modified from time to time whether or not with the same agent,
trustee, representative lenders or holders, and, subject to the proviso to the
next succeeding sentence, irrespective of any changes in the terms and
conditions thereof.  Without limiting the generality of the foregoing, the
term “Credit Agreement” shall include agreements in respect of Interest Swap
and Hedging Obligations with lenders (or Affiliates thereof) party to the
Credit Agreement and shall also include any amendment, amendment and
restatement, renewal, extension, restructuring, supplement or modification to
any Credit Agreement and all refundings, refinancings and replacements of any
Credit Agreement with another credit agreement, including any credit agreement:


 


(1)                                 
extending the
maturity of any Indebtedness incurred thereunder or contemplated thereby,


 


(2)                                 
adding or deleting
borrowers or guarantors thereunder, so long as borrowers and issuers include
one or more of the Issuer and its Subsidiaries and their respective successors
and assigns,


 


(3)                                 
increasing the amount
of Indebtedness incurred thereunder or available to be borrowed thereunder; provided, that on the date such
Indebtedness is incurred it would not be prohibited by Section 4.7, or


 


(4)                                 
otherwise altering
the terms and conditions thereof in a manner not prohibited by the terms of
this Indenture.


 


“Default” means any event that is or with
the passage of time or the giving of notice or both would be an Event of
Default.


 


“Definitive Note” means one or more
certificated Notes registered in the name of the Holder thereof and issued in
accordance with Section 2.6 hereof, substantially in the form of
Exhibit A hereto except that such Note shall not include the information
called for by footnotes 3 and 4 thereof.


 


“Depositary” means, with respect to the
Notes issuable or issued in whole or in part in global form, the Person
specified in Section 2.3 hereof as the Depositary with respect to the
Notes, until a successor will have been appointed and become such pursuant to
the applicable provisions of this Indenture, and thereafter “Depositary” will
mean or include such successor.


 


9
















 


“Disqualified Capital Stock” means with
respect to any Person, any Equity Interest of such Person that, by its terms or
by the terms of any security into which it is convertible, exercisable or
exchangeable, is, or upon the happening of an event or the passage of time or
both would be, required to be redeemed or repurchased, including at the option
of the Holder thereof, by such Person or any of its Subsidiaries, in whole or
in part, on or prior to 91 days following the Stated Maturity of the
Notes.  Notwithstanding the foregoing, any Equity Interests that would
constitute Disqualified Capital Stock solely because the Holders thereof have
the right to require the Issuer to repurchase such Equity Interests upon the
occurrence of a change of control or an asset sale or from excess cash flow
shall not constitute Disqualified Capital Stock if the terms of such Equity
Interests provide that the Issuer may not repurchase or redeem any such Equity
Interests pursuant to such provisions prior to the Issuer’s purchase of the
Notes as are required to be purchased pursuant to the provisions of this
Indenture as described in Sections 4.13, 4.14 and 4.22.


 


“Distribution Compliance Period” means the
40-day restricted period as defined in Regulation S.


 


“DTC” means the Depository Trust Company
and any successor thereto.


 


“Employee Stock Ownership Trust” means “The
Wornick Company Employee Stock Ownership Trust,” as in effect as of the Issue
Date, without giving effect to any amendment or modification thereof or
supplement thereto.


 


“Equity Interests” means Capital Stock and
all warrants, options or other rights to acquire Capital Stock (but excluding
any debt security that is convertible into, or exchangeable for, Capital
Stock).


 


“Euroclear” means Euroclear Bank S.A./N.V.,
as operator of the Euroclear system, or any successor securities clearing
agency.


 


“Event of Loss” means, with respect to any
property or asset, (1) any loss, destruction or damage of such property or
asset, (2) any condemnation, seizure or taking, by exercise of the power
of eminent domain or otherwise, of such property or asset, or confiscation or
requisition of the use of such property or asset or (3) any settlement in
lieu of clause (2) above, in each case having a fair market value or
resulting in gross proceeds in excess of $1,000,000.


 


“Excess Cash Flow” means, with respect to
any Person for any period, the Consolidated EBITDA of such Person for such period,
(a) adjusted to deduct therefrom the sum, without duplication, of the
following: (1) the cash portion of Consolidated Fixed Charges of such
Person paid during such period; (2) capital expenditures of such Person
and its Subsidiaries made during such period; (3) all federal, state and
local income taxes of such Person and its Subsidiaries paid during such period;
(4) permanent reductions of Indebtedness incurred under the Credit
Agreement; and (5) any net increase in Working Capital for such period; and
(b) adjusted to add thereto the sum, without duplication, of (1) any
net decrease in Working Capital for such period and (2) the amount of
reimbursements, if any, received during such period in respect of capital
expenditures.


 


10
















 


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


 


“Exchange Notes” means the Series B Notes,
issued pursuant to an Exchange Offer and identical in all respects to the
Series A Notes (including with respect to the Guarantees), except (i) that such
securities shall have been registered pursuant to an effective registration
statement under the Securities Act, (ii) that such securities shall not contain
a restrictive legend thereon, (iii) that such securities shall not contain
provisions relating to the accrual or payment of Liquidated Damages and
(iv) Interest on each Exchange Note shall accrue from the last Interest
Payment Date on which Interest was paid on the Notes surrendered in exchange
therefor or, if no Interest has been paid on the Notes, from the date of
original issue of the Notes.


 


“Exchange Offer” means an offer that may be
made by the Issuer pursuant to the Registration Rights Agreement to exchange
Exchange Notes for Series A Notes.


 


“Exchange Offer Registration Statement”
shall have the meaning set forth in the Registration Rights Agreement.


 


“Excluded Assets” means:


 


(a)                                 
assets securing
Purchase Money Indebtedness permitted to be incurred under this Indenture;


 


(b)                                
leasehold estates in
real property existing on the Issue Date and any additional leasehold estates
in real property acquired by the Issuer or the Subsidiaries after the Issue
Date, unless the Trustee (upon request of the Holders of a majority of the
outstanding Notes), in its reasonable discretion requests that the Issuer
provide the Trustee, as secured party, with a lien upon and security interest
in such leasehold estate so that such leasehold estate shall become additional
Collateral (and the Issuer in the Collateral Agreements will agree to notify
the Trustee of the acquisition by it or any of the Subsidiaries of any
leasehold estate in real property);


 


(c)                                 
any leases, permits,
licenses or other contracts or agreements or other assets or property to the
extent that a grant of a Lien thereon under the Collateral Agreements
(i) is prohibited by law or would constitute or result in the abandonment,
invalidation or unenforceability of any right, title or interest of the grantor
therein pursuant to the applicable law, or (ii) would require the consent
of third parties and such consent has not been obtained after the Issuer has
used commercially reasonable efforts to try to obtain such consent, or
(iii) other than as a result of requiring a consent of third parties that
has not been obtained, would result in a breach of the provisions thereof, or
constitute a default under or result in a termination of, such lease, permit,
license, contract or agreement (other than to the extent that any such
provisions thereof would be rendered ineffective pursuant to
Section 9-406, 9-407 or 9-408 of the Uniform Commercial Code (or any
successor


 


11
















 


provision or provisions) of any relevant jurisdiction
or any other applicable law (the “UCC”));
provided, that, immediately upon
the uneffectiveness, lapse or termination of such prohibition, the provisions
that would be so breached or such breach, default or termination or immediately
upon the obtaining of any such consent, the Excluded Assets shall not include,
and the Issuer or applicable Guarantor, as the case may be, shall be deemed to
have granted a security interest in, all such leases, permits, licenses, other
contracts and agreements and such other assets and property as if such
prohibition, the provisions that would be so breached or such breach, default
or termination had never been in effect and as if such consent had not been
required;


 


(d)                                
cash and Cash
Equivalents to the extent that a Lien thereon may not be perfected through the
filing of a UCC financing statement or that, after the Issuer has used
commercially reasonable efforts, the Issuer is unable to cause the Trustee to
obtain “control” (as defined in the UCC) for the benefit of the Holders; and


 


(e)                                 
any Capital Stock,
securities or other payment rights of a Subsidiary, except to the extent
described in the three immediately following paragraphs.


 


The Capital Stock,
securities and other payment rights of the Subsidiaries shall constitute
Collateral only to the extent that such Capital Stock, securities and other
payment rights can secure the Notes without Rule 3-10 or Rule 3-16 of
Regulation S-X under the Securities Act (or any other law, rule or
regulation) requiring separate financial statements of such Subsidiary to be
filed with the Commission (or any other governmental agency).  In the
event that Rule 3-10 or Rule 3-16 of Regulation S-X under the
Securities Act requires or is amended, modified or interpreted by the Commission
to require (or is replaced with another rule or regulation, or any other law,
rule or regulation is adopted, which would require) the filing with the
Commission (or any other governmental agency) of separate financial statements
of any Subsidiary due to the fact that such Subsidiary’s Capital Stock,
securities or other payment rights secure the Notes, then the Capital Stock,
securities or other payment rights of such Subsidiary shall automatically be
deemed not to be part of the Collateral but only to the extent necessary to not
be subject to such requirement.  In such event, the Collateral Agreements
may be amended or modified, without the consent of any Holder of Notes, to the
extent necessary to release the Liens on the shares of Capital Stock, securities
or other payment rights that are so deemed to no longer constitute part of the
Collateral.  In the event that Rule 3-10 and Rule 3-16 of
Regulation S-X under the Securities Act is amended, modified or
interpreted by the Commission to permit (or are replaced with another rule or
regulation, or any other law, rule or regulation is adopted, which would
permit) such Subsidiary’s Capital Stock, securities and other payment rights to
secure the Notes in excess of the amount then pledged without the filing with
the Commission (or any other governmental agency) of separate financial
statements of such Subsidiary, then the Capital Stock, securities and other
payment rights of such Subsidiary shall automatically be deemed to be a part of
the Collateral but only to the extent necessary to not be subject to any such
financial statement requirement.  In such event, the Collateral Agreements
may be


 


12
















 


amended or modified, without the consent of any Holder
of Notes, to the extent necessary to subject to the Liens under the Collateral
Agreements such additional Capital Stock, securities and other payment rights.


 


In accordance with the
foregoing limitations, as of the Issue Date, the Collateral will include shares
of Capital Stock of the Guarantors only to the extent that the Applicable Value
of such Capital Stock (on a Subsidiary-by-Subsidiary basis) is less than 20% of
the aggregate principal amount of the Notes outstanding.  Following the
Issue Date, however, the portion of the Capital Stock of such Subsidiaries
constituting Collateral may decrease or increase as described above.


 


In the case of Foreign
Subsidiaries, if any, the Collateral will be limited to a pledge of 65% of the
Voting Equity Interests of such Foreign Subsidiary held directly by the Issuer
or any domestic Subsidiary, 100% of the nonvoting Equity Interests of such
Foreign Subsidiary held directly by the Issuer or any domestic Subsidiary and
100% of any intercompany Indebtedness owed by such Foreign Subsidiary to the
Issuer or any of the Guarantors.


 


“Excluded Foreign Subsidiary” means any
Foreign Subsidiary that is either (i) treated for Federal tax purposes as
a corporation or (ii) any entity owned directly or indirectly by another
Foreign Subsidiary that is treated for Federal tax purposes as a corporation.


 


“Exempted Affiliate Transaction” means:


 


(a)                                 
customary director,
officer and employee compensation arrangements approved by a majority of
disinterested (as to such transactions) members of the Issuer’s Board of
Directors,


 


(b)                                
Restricted Payments
permitted under the terms of Section 4.9,


 


(c)                                 
transactions solely
between or among the Issuer and any of its Subsidiaries or solely between or
among its Subsidiaries,


 


(d)                                
reimbursement of any
reasonable out-of-pocket expenses of the Principal and its Affiliates and, so
long as no Default or Event of Default has occurred and is continuing at the
time of such payment, payments of Management Fees by the Issuer or any of its
Subsidiaries,


 


(e)                                 
any agreement as in
effect as of the Issue Date among the Issuer and/or one or more Subsidiaries,
on the one hand, and one or more Affiliates, on the other hand (including any
amendment thereto and 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) and any transaction contemplated thereby (for the avoidance of doubt,
Exempted Affiliate Transaction shall include the payment of a $3.0 million
transaction fee to Veritas Capital Management II, L.L.C. in connection with the


 


13
















 


acquisition of the assets and business of The Wornick
Company, a Nevada corporation, and its subsidiaries as described in the
Offering Circular under “Certain Relationships and Related
Transactions—Transaction Fee”),


 


(f)                                   
co-manufacturing
agreements or arrangements (and transactions effectuated pursuant thereto) with
customers, clients, suppliers or purchasers or sellers of goods or services, in
each case in the ordinary course of business; provided
that either the Board of Directors or the management of the Issuer has
determined in its reasonable good faith judgment that each such agreement and
arrangement is on terms that are not less favorable than those that would have
been obtained in a comparable transaction at such time on an arm’s-length basis
from a Person that is not an Affiliate of the Issuer, and


 


(g)                                
a transaction that
constitutes a Permitted Investment pursuant to clause (f) of the
definition of “Permitted Investment.”


 


“Existing Indebtedness” means the
Indebtedness of the Issuer and its Subsidiaries (other than Indebtedness under
the Credit Agreement) in existence on the Issue Date (after giving effect to
the transactions contemplated hereby), reduced to the extent such amounts are
repaid, refinanced or retired.


 


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


 


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


 


“Global Notes” means one or more Notes in
the form of Exhibit A hereto that includes the information referred to in
footnotes 3 and 4 to the form of Note, attached hereto as Exhibit A,
issued under this Indenture, that is deposited with or on behalf of and registered
in the name of the Depositary or its nominee.


 


“Global Note Legend” means the legend set
forth in Section 2.6(g)(ii) hereof, which is required to be placed on all
Global Notes issued under this Indenture.


 


“guaranty” or “guarantee,” used as a noun, means a guarantee (other than by
endorsement of negotiable instruments for collection in the ordinary course of
business), direct or indirect, in any manner (including, without limitation,
letters of credit and reimbursement agreements in respect thereof), of all or
any part of any Indebtedness.  The term “guarantee” or “guaranty,” used as
a verb, has a corresponding meaning.  When used with respect to the Notes,
a “Guarantee” means a guarantee by any of the Guarantors of the Notes, in
accordance with Article XI hereof.


 


14
















 


“Guarantor” means each of the Issuer’s
present and future Subsidiaries that at the time are guarantors of the Notes in
accordance with this Indenture.


 


“Holder” means the Person in whose name a
Note is registered in the register of the Notes.


 


“Indebtedness” of any specified Person
means, without duplication,


 


(a)                                 
all liabilities and
obligations, contingent or otherwise, of such specified Person, to the extent
such liabilities and obligations would appear as a liability upon the
consolidated balance sheet of such specified Person in accordance with GAAP,
(1) in respect of borrowed money (whether or not the recourse of the
lender is to the whole of the assets of such specified Person or only to a
portion thereof), (2) evidenced by bonds, notes, debentures or similar
instruments, (3) representing the balance deferred and unpaid of the
purchase price of any property or services, except (other than accounts payable
or other obligations to trade creditors which have remained unpaid for greater
than 90 days past their original due date unless such accounts payable or
other obligations to trade creditors are being contested in good faith and by
appropriate proceedings and adequate reserves with respect thereto are
maintained on the books of such specified Person in accordance with GAAP) those
incurred in the ordinary course of its business that would constitute
ordinarily a trade payable to trade creditors;


 


(b)                                
all liabilities and
obligations, contingent or otherwise, of such specified Person
(1) evidenced by bankers’ acceptances or similar instruments issued or
accepted by banks, (2) relating to any Capitalized Lease Obligation, or
(3) evidenced by a letter of credit or a reimbursement obligation of such
specified Person with respect to any letter of credit;


 


(c)                                 
all net obligations
of such specified Person under Interest Swap and Hedging Obligations;


 


(d)                                
all liabilities and
obligations of others of the kind described in any of the preceding
clauses (a), (b) and (c) that such specified Person has guaranteed or
provided credit support or that are otherwise its legal liability or which are
secured by any assets or property of such specified Person;


 


(e)                                 
any and all
deferrals, renewals, extensions, refinancing and refundings (whether direct or
indirect) of, or amendments, modifications or supplements to, any liability of
the kind described in any of the preceding clauses (a), (b), (c) or (d),
or this clause (e), whether or not between or among the same parties; and


 


(f)                                   
all Disqualified
Capital Stock of such specified Person (measured at the greater of its
voluntary or involuntary maximum fixed repurchase price).


 


15
















 


For purposes hereof, the
“maximum fixed repurchase price” of any Disqualified Capital Stock which does
not have a fixed repurchase price shall be calculated in accordance with the terms
of such Disqualified Capital Stock as if such Disqualified Capital Stock were
purchased on any date on which Indebtedness shall be required to be determined
pursuant to this Indenture, and if such price is based upon, or measured by,
the fair market value of such Disqualified Capital Stock, such fair market
value shall be determined in reasonable good faith by the Board of Directors of
the issuer of such Disqualified Capital Stock.


 


The amount of any
Indebtedness outstanding as of any date shall be (1) the accreted value
thereof, in the case of any Indebtedness issued with original issue discount,
but the accretion of original issue discount in accordance with the original
terms of Indebtedness issued with an original issue discount will not be deemed
to be an incurrence and (2) the principal amount thereof, together with
any interest thereon that is more than 30 days past due, in the case of
any other Indebtedness.


 


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


 


“Indirect Participant” means an entity
that, with respect to DTC, clears through or maintains a direct or indirect,
custodial relationship with a Participant.


 


“Initial Public Offering” means an initial
underwritten public offering of common stock of the Issuer for cash pursuant to
an effective registration statement under the Securities Act following which
the common stock of the Issuer is listed on a national securities exchange or
quoted on the national market system of the Nasdaq Stock Market, Inc.


 


“Initial Purchasers” means the initial
purchasers of the Series A Notes under the Purchase Agreement, dated June 24,
2004, with respect to the Series A Notes.


 


“Institutional Accredited Investor” means
an institution that is an “accredited investor” as defined in
Rule 501(a)(1), (2), (3) or (7) under the Securities Act, which is not
also a QIB.


 


“Intercreditor Agreement” means that
certain Intercreditor Agreement among the Trustee and the lender or agent, as
applicable, under the Credit Agreement to be dated as of the Issue Date and any
amended or supplemented agreement or any replacement or substitute agreement in
accordance with this Indenture, in each case substantially in the form of
Exhibit F attached hereto.


 


“Interest” means the interest payable on
the Notes.


 


“Interest Payment Date” means the stated
due date of an installment of Interest on the Notes.


 


“Interest Record Date” means a Interest
Record Date specified in the Notes, whether or not such date is a Business Day.


 


16
















 


“Interest Swap and Hedging Obligation”
means any obligation of any Person pursuant to any interest rate swap
agreement, interest rate cap agreement, interest rate collar agreement,
interest rate exchange agreement, currency exchange agreement, commodity
futures contract, commodity option or any other agreement or arrangement
designed to protect against fluctuations in interest rates, currency values or
commodity prices, including, without limitation, any arrangement whereby,
directly or indirectly, such Person is entitled to receive from time to time
periodic payments calculated by applying either a fixed or floating rate of
interest on a stated notional amount in exchange for periodic payments made by
such Person calculated by applying a fixed or floating rate of interest on the
same notional amount.


 


“Investment” by any specified Person in any
other Person (including an Affiliate) means (without duplication):


 


(a)                                 
the acquisition
(whether by purchase, merger, consolidation or otherwise) by such specified
Person (whether for cash, property, services, securities or otherwise) of
Equity Interests, Capital Stock, bonds, notes, debentures, partnership or other
ownership interests or other securities, including any options or warrants, of
such other Person or any agreement to make any such acquisition;


 


(b)                                
the making by such
specified Person of any deposit with, or advance, loan or other extension of
credit to, such other Person (including the purchase of property from another
Person subject to an understanding or agreement, contingent or otherwise, to
resell such property to such other Person) or any commitment to make any such
advance, loan or extension (but excluding accounts receivable, trade credit on
commercially reasonable terms, endorsements for collection or deposits arising
in the ordinary course of business);


 


(c)                                 
other than guarantees
of Indebtedness of the Issuer or any Guarantor to the extent permitted by
Section 4.7, the entering into by such specified Person of any guarantee
of, or other credit support or contingent obligation with respect to,
Indebtedness or other liability of such other Person;


 


(d)                                
the making of any
capital contribution by such specified Person to such other Person; and


 


(e)                                 
Investments described
in the immediately following paragraph.


 


The Issuer shall be
deemed to make an Investment in an amount equal to the fair market value of the
net assets of any Subsidiary of the Issuer (or, if neither the Issuer nor any
of its Subsidiaries has theretofore made an Investment in such Subsidiary, in
an amount equal to the Investments being made), at the time that such
Subsidiary is designated an Unrestricted Subsidiary, and any property
transferred to an Unrestricted Subsidiary from the Issuer or a Subsidiary of
the Issuer shall be deemed an Investment valued at its fair market value at the
time of such transfer.  The Issuer or any of its


 


17
















 


Subsidiaries shall be deemed to have made an
Investment in a Person that is or was a Subsidiary or a Guarantor if, upon the
issuance, sale or other disposition of any portion of the Issuer’s or any of
its Subsidiaries’ ownership in the Capital Stock of such Person, such Person
ceases to be a Subsidiary or Guarantor, as applicable.  The fair market
value of each Investment shall be measured at the time made or returned, as
applicable.


 


“Issue Date” means the date of first
issuance of the Notes under this Indenture.


 


“Letter of Transmittal” means the letter of
transmittal to be prepared by the Issuer and sent to all Holders of the Notes
for use by such Holders in connection with the Exchange Offer.


 


“Lien” means, with respect to any asset,
any mortgage, charge, pledge, lien (statutory or otherwise), privilege,
security interest, hypothecation or other encumbrance upon or with respect to
such asset, whether or not filed, recorded or otherwise perfected under
applicable law, including any conditional sale or other title retention
agreement, any lease in the nature thereof, any option or other agreement to
sell or give a security interest in any filing of or agreement to give any
financing statement under the Uniform Commercial Code (or equivalent statutes)
of any jurisdiction, real or personal, movable or immovable, now owned or
hereafter acquired.


 


“Liquidated Damages” means all liquidated
damages then owing pursuant to the Registration Rights Agreement.


 


“Management Fees” means management fees
paid by the Issuer or its Subsidiaries to Veritas Capital Management II, L.L.C.
or its Affiliates in an amount per fiscal year not to exceed the greater of
(i) $300,000 and (ii) 1% of Consolidated EBITDA for such fiscal year;
provided that if the Notes are
outstanding for only a portion of a fiscal year, such amount shall be pro rated
for the portion of such fiscal year that the Notes are outstanding.


 


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


 


“Net Cash Proceeds” means the aggregate
amount of cash or Cash Equivalents received (a) by the Issuer in the case
of a sale of Qualified Capital Stock and (b) by the Issuer and its
Subsidiaries in respect of an Asset Sale or an Event of Loss (including, in the
case of an Event of Loss, the insurance proceeds, but excluding any liability
insurance proceeds payable to the Trustee for any loss, liability or expense
incurred by it),


 


(1)                                 
plus, in the case of an issuance of Qualified
Capital Stock upon any exercise, exchange or conversion of securities
(including options, warrants, rights and convertible or exchangeable debt) of
the Issuer that were issued for cash after the Issue Date, the amount of cash
originally received by the Issuer upon the issuance of such securities
(including options, warrants, rights and convertible or exchangeable debt),


 


(2)                                 
less, in each case, the sum of all payments,
fees and commissions and reasonable and customary expenses (including, without
limitation, the fees


 


18
















 


and expenses of legal counsel, accounting and
investment banking fees and expenses) incurred in connection with such Asset
Sale or sale of Qualified Capital Stock or Event of Loss,


 


(3)                                 
less, in the case of an Asset Sale or Event
of Loss only,


 


(i)                                    
the amount (estimated
reasonably and in good faith by the Issuer) of income, franchise, sales and
other applicable taxes required to be paid by the Issuer or any of its
respective Subsidiaries in connection with such Asset Sale or Event of Loss in
the taxable year that such sale is consummated or in the immediately succeeding
taxable year, the computation of which shall take into account the reduction in
tax liability resulting from any available operating losses and net operating
loss carryovers, tax credits and tax credit carryforwards, and similar tax
attributes,


 


(ii)                                 
repayment of
Indebtedness (including Purchase Money Indebtedness but not including
Subordinated Indebtedness, unless such Subordinated Indebtedness is required to
be repaid in connection with such Asset Sale (including to obtain a necessary
consent to such Asset Sale or required by applicable law)) secured by a Lien
(permitted under this Indenture) on the asset disposed of in such Asset Sale or
Event of Loss, and


 


(iii)                              
any reserve,
established in accordance with GAAP, for adjustment in respect of the sale
price of the property or other assets disposed in such Asset Sale, in
accordance with the terms of the agreement governing such Asset Sale.


 


“Non-Cash ESOP Compensation Charges” means
compensation expense for Employee Stock Ownership Trust shares released and
committed to be released, compensation expense for stock options and other
stock-based compensation expense, in each case, as determined in accordance
with GAAP and incurred by the Issuer and its Subsidiaries prior to the Issue
Date.


 


“Non-U.S. Person” means any Person other
than a U.S. Person.


 


“Notes Custodian” means the Trustee, as
custodian with respect to the Notes in global form, or any successor entity
thereto.


 


“Obligation” means any principal, premium
or interest payment, or monetary penalty, or damages, due by the Issuer or any
Guarantor under the terms of the Notes or this Indenture, including any
Liquidated Damages due pursuant to the terms of the Registration Rights
Agreement.


 


“Offering” means the offering of the Notes
by the Issuer.


 


19
















 


“Officer” means, with respect to any
Person, the Chairman of the Board, the Chief Executive Officer, the President,
the Chief Operating Officer, the Chief Financial Officer, the Treasurer, any
Assistant Treasurer, the Controller, the Secretary, any Assistant Secretary or
any Vice President of such Person or any other Person designated by the Board
of Directors of such Person and serving in a similar capacity.


 


“Officers’ Certificate” means an officers’
certificate to be delivered upon the occurrence of certain events as set forth
in this Indenture, and to be executed by two Officers of the Issuer, one of
whom shall be the principal executive officer, the principal financial officer,
the Treasurer or a Vice President.


 


“Opinion of Counsel” means the opinion of
counsel (subject to certain customary exceptions and assumptions) to be
delivered upon the occurrence of certain events set forth in this Indenture
(which Opinion of Counsel shall be reasonably acceptable to the Trustee).


 


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


 


“Permitted Indebtedness” means:


 


(a)                                 
Indebtedness
evidenced by the Notes and the Guarantees issued pursuant to this Indenture up
to the amounts being issued on the original Issue Date less any amounts repaid
or retired;


 


(b)                                
Refinancing
Indebtedness with respect to any Indebtedness (including Disqualified Capital
Stock) described in clause (a) or incurred pursuant to the Debt Incurrence
Ratio test of Section 4.7, or which was refinanced pursuant to this clause (b);


 


(c)                                 
Indebtedness solely
in respect of bankers’ acceptances, letters of credit performance bonds,
workers’ compensation claims, surety or appeal bonds, payment obligations in
connection with self-insurance and similar obligations (to the extent that such
incurrence does not result in the incurrence of any obligation to repay any
obligation relating to borrowed money or other Indebtedness), all in the
ordinary course of business in accordance with customary industry practices, in
amounts and for the purposes customary in the Issuer’s industry;


 


(d)                                
(i)                                    
Indebtedness incurred
by the Issuer that is owed to (borrowed from) any Guarantor, provided, that (x) such Indebtedness
shall be unsecured and contractually subordinated in all respects to the
Issuer’s obligations pursuant to the Notes and (y) any event that causes
such Guarantor no longer to be a Guarantor (including by designation as an
Unrestricted Subsidiary) shall be deemed to be a


 


20
















 


new incurrence by the Issuer of such Indebtedness and
any guarantor thereof subject to Section 4.7,


 


(ii)                                 
Indebtedness incurred
by any Guarantor that is owed to (borrowed from) any other Guarantor or the
Issuer, provided, that
(x) such Indebtedness shall be unsecured and contractually subordinated in
all respects to such Guarantor’s obligations pursuant to such Guarantor’s
Guarantee and (y) any event that causes the Guarantor lender no longer to
be a Guarantor (including a designation as an Unrestricted Subsidiary) shall be
deemed to be a new incurrence by such Guarantor borrower of such Indebtedness
and any guarantor thereof subject to Section 4.7, and


 


(iii)                              
Indebtedness incurred
by any Subsidiary (other than a Guarantor) and owed to (borrowed from) the
Issuer, any Guarantor or any other Subsidiary; provided,
that (x) such Indebtedness shall be unsecured and contractually
subordinated in all respects to the Issuer’s obligations pursuant to the Notes
and such Guarantor’s obligations pursuant to such Guarantor’s Guarantee, as
applicable, (y) any event that causes the Subsidiary borrower or the
Subsidiary or Guarantor lender to no longer be a Subsidiary (including a
designation as an Unrestricted Subsidiary), shall be deemed to be a new
incurrence of such Indebtedness subject to Section 4.7, and (z) the
Investment in the form of the loan is a “Permitted Investment” (other than
pursuant to clause (c) of the definition thereof) or is otherwise not
prohibited at the time of incurrence by Section 4.9;


 


(e)                                 
Interest Swap and
Hedging Obligations that are incurred in the ordinary course of business and
not for speculative purposes, for the purpose of fixing or hedging interest
rate, currency or commodity price risk with respect to any fixed or floating
rate Indebtedness that is permitted by this Indenture to be outstanding or any
receivable or liability the payment of which is determined by reference to a
foreign currency; provided, that
the notional amount of any such Interest Swap and Hedging Obligation does not
exceed the principal amount of Indebtedness or other obligations to which such
Interest Swap and Hedging Obligation relates;


 


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


 


(g)                                
the Issuer’s
incurrence or the incurrence by any Guarantor of (i) Purchase Money
Indebtedness or Capitalized Lease Obligations or (ii) additional
Indebtedness under the Credit Agreement if, immediately prior to such


 


21
















 


incurrence, the then outstanding Indebtedness under
the Credit Agreement was considered (by the designation or redesignation then
in effect) to have been incurred pursuant to Section 4.7(b)(i) or clause
(h) of the definition of “Permitted Indebtedness;” provided, that the aggregate amount of such Indebtedness
incurred and outstanding at any time pursuant to this clause (g) (plus any
Refinancing Indebtedness incurred to retire, defease, refinance, replace or
refund such Indebtedness) does not exceed $5,000,000; and provided, further, that the aggregate
amount of Indebtedness pursuant to the Credit Agreement permitted to be
incurred pursuant to this clause (g) shall be reduced by the amount of any
such Indebtedness (1) retired with the Net Cash Proceeds from any Asset
Sale or Event of Loss applied to permanently reduce the outstanding amounts or
the commitments with respect to such Indebtedness pursuant to Section 4.13
or (2) assumed by a transferee in an Asset Sale; and


 


(h)                                
if no Event of
Default shall have occurred and be continuing, the Issuer’s incurrence or the
incurrence by any Guarantor of Indebtedness in an aggregate amount incurred and
outstanding at any time pursuant to this clause (h) (plus any Refinancing
Indebtedness incurred to retire, defease, refinance, replace or refund such
Indebtedness) of up to $5,000,000; provided,
that such Indebtedness may be Indebtedness incurred under the Credit Agreement
only if, immediately prior to such incurrence, the then outstanding
Indebtedness under the Credit Agreement was considered (by the designation or
redesignation then in effect) to have been incurred pursuant to
Section 4.7(b)(i) or clause (g)(ii) of the definition of “Permitted
Indebtedness;” and provided, further, that
the aggregate amount of Indebtedness pursuant to the Credit Agreement permitted
to be incurred pursuant to this clause (h) shall be reduced by the amount
of any such Indebtedness (1) retired with the Net Cash Proceeds from any
Asset Sale or Event of Loss applied to permanently reduce the outstanding
amounts or the commitments with respect to such Indebtedness pursuant to
Section 4.13 or (2) assumed by a transferee in an Asset Sale.


 


“Permitted Investment” means:


 


(a)                                 
any Investment in any
of the Notes or the Additional Notes;


 


(b)                                
any Investment in
cash or Cash Equivalents;


 


(c)                                 
intercompany notes to
the extent permitted under clause (d) of the definition of “Permitted
Indebtedness;”


 


(d)                                
any Investment by the
Issuer or any Subsidiary in a Person in a Related Business if as a result of
such Investment such Person becomes a Subsidiary and a Guarantor or such Person
is merged with or into the Issuer or a Subsidiary that is a Guarantor;


 


22
















 


(e)                                 
Investments in
existence on the Issue Date;


 


(f)                                   
loans or advances to
employees, directors and officers of the Issuer, any Subsidiary or any direct
holding company of the Issuer in the ordinary course of business for bona fide
business purposes, in an aggregate amount not to exceed $500,000 outstanding at
any one time;


 


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


 


(h)                                
an Investment in the
Issuer or in a Subsidiary of the Issuer which is a Guarantor, provided that any Indebtedness evidencing
such Investment is unsecured and subordinated to the Issuer’s obligations under
the Notes;


 


(i)                                    
Interest Swap and
Hedging Obligations of the types permitted to be incurred under clause (e)
of the definition of “Permitted Indebtedness;”


 


(j)                                    
any Investment in any
Person (including the acquisition of Indebtedness) in exchange for the Issuer’s
Qualified Capital Stock or the Net Cash Proceeds of any substantially
concurrent sale of the Issuer’s Qualified Capital Stock;


 


(k)                                 
other Investments in
any Person or Persons, provided,
that after giving pro forma
effect to each such Investment, the aggregate amount of all such Investments
made on and after the Issue Date pursuant to this clause (k) that are
outstanding (after giving effect to any such Investments or any portions
thereof that are returned to the Issuer or the Guarantor that made such prior
Investment, without restriction, in cash on or prior to the date of any such
calculation, but only up to the amount of the Investment made under this
clause (k)) in such Person or Persons at any time does not in the
aggregate exceed $5,000,000 (measured by the value attributed to the Investment
at the time made or returned, as applicable); and


 


(l)                                    
any Investment made
as a result of the receipt of non-cash consideration from an Asset Sale that
was made pursuant to and in compliance with Section 4.13.


 


“Permitted Liens” means:


 


(a)                                 
Liens existing on the
Issue Date;


 


(b)                                
Liens imposed by
governmental authorities for taxes, assessments or other charges not yet
subject to penalty or which are being contested in good faith and by
appropriate proceedings, if adequate reserves with respect thereto are
maintained on the books of the Issuer in accordance with GAAP;


 


23
















 


(c)                                 
statutory liens of
carriers, warehousemen, mechanics, materialmen, landlords, repairmen or other
like Liens arising by operation of law in the ordinary course of business
provided that (1) the underlying obligations are not overdue for a period
of more than 30 days, or (2) such Liens are being contested in good
faith and by appropriate proceedings and adequate reserves with respect thereto
are maintained on the books of the Issuer in accordance with GAAP;


 


(d)                                
Liens securing the
performance of bids, trade contracts (other than borrowed money), leases,
statutory obligations, surety and appeal bonds, performance bonds and other
obligations of a like nature incurred in the ordinary course of business;


 


(e)                                 
Liens arising by
operation of law in connection with a judgment, decree or order, only to the
extent, for an amount and for a period not resulting in an Event of Default;


 


(f)                                   
pledges or deposits
made in the ordinary course of business in connection with workers’
compensation, unemployment insurance and other types of social security
legislation;


 


(g)                                
Liens securing the
Notes and the Guarantees;


 


(h)                                
Liens securing
Indebtedness of a Person existing at the time such Person becomes a Subsidiary
or is merged with or into the Issuer or a Subsidiary or any Lien securing
Indebtedness incurred in connection with an Acquisition, provided, that such Liens were in
existence prior to the date of such acquisition, merger or consolidation, were
not incurred in anticipation thereof, and do not extend to any other assets;


 


(i)                                    
Liens arising from
Purchase Money Indebtedness and Capitalized Lease Obligations permitted to be
incurred pursuant to clause (g)(i) of the definition of “Permitted
Indebtedness”; provided such
Liens relate solely to the property which is subject to such Indebtedness;


 


(j)                                    
leases or subleases
granted to other Persons in the ordinary course of business not materially
interfering with the conduct of the business of the Issuer or any of its
Subsidiaries or materially detracting from the value of the relative assets of
the Issuer or any Subsidiary;


 


(k)                                 
Liens arising from
Uniform Commercial Code financing statement filings regarding operating leases
entered into by the Issuer or any of its Subsidiaries in the ordinary course of
business;


 


(l)                                    
Liens securing
Refinancing Indebtedness incurred to refinance any Indebtedness that was
previously so secured in a manner no more adverse to the Holders of the Notes
than the terms of the Liens securing such refinanced Indebtedness, provided that the Indebtedness secured is
not


 


24
















 


increased and the Lien is not extended to any
additional assets or property that would not have been security for the
Indebtedness refinanced;


 


(m)                              
Liens securing
Indebtedness incurred under the Credit Agreement in accordance with
Section 4.7(b) and clauses (g)(ii) and (h) of the definition of
“Permitted Indebtedness;”


 


(n)                                
easements,
rights-of-way, zoning and similar restrictions and other similar encumbrances
or title defects which, individually or in the aggregate, do not materially
detract from the value of the property subject thereto (as such property is
used by the Issuer or any of its Subsidiaries) and do not interfere in any
material respect with the ordinary conduct of the business of the Issuer or any
of its Subsidiaries;


 


(o)                                
Liens in favor of the
Issuer or any Guarantor, which are assigned to the Trustee for the Notes or a
Guarantee, as applicable;


 


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


 


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


 


(r)                                   
Liens incurred in the
ordinary course of business securing Interest Swap and Hedging Obligations that
are otherwise permitted to be incurred under clause (e) of the definition
of “Permitted Indebtedness;”


 


(s)                                 
Liens upon
appropriate amounts established by the Issuer or any Subsidiary, as the case
may be, as a reserve, in accordance with GAAP, against any liabilities
associated with an Asset Sale and retained by the Issuer or any Subsidiary, as
the case may be, after such Asset Sale; and


 


(t)                                   
Liens securing
Indebtedness of the Issuer or any Subsidiary (other than Indebtedness incurred
under the Credit Agreement and other than Purchase Money Indebtedness or
Capitalized Lease Obligations) in addition to the Liens described in
clauses (a) through (s) above, so long as the aggregate principal amount
of Indebtedness secured by Liens incurred pursuant to this clause (t) does
not exceed $3,000,000 at any one time outstanding.


 


“Person” or “person” means any individual, corporation, limited liability
company, joint stock company, joint venture, partnership, limited liability
partnership, association, unincorporated organization, trust, governmental
regulatory entity, country, state, agency or political subdivision thereof,
municipality, county, parish or other entity.


 


25
















 


“Preferred Stock” means any Equity Interest
of any class or classes of a Person (however designated) which is preferred as
to payments of dividends, or as to distributions upon any liquidation or
dissolution, over Equity Interests of any other class of such Person.


 


“Principal” means The Veritas Capital Fund
II, L.P.


 


“Private Placement Legend” means the legend
set forth in Section 2.6(g)(i)(A) hereof to be placed on all Notes issued
under this Indenture except where specifically stated otherwise by the
provisions of this Indenture.


 


“Pro Forma” or “pro forma” shall have the meaning set forth in
Regulation S-X under the Securities Act, unless otherwise specifically stated
herein.


 


“Purchase Money Indebtedness” of any Person
means any Indebtedness of such Person to any seller or other Person incurred
solely to finance the acquisition (including, in the case of a Capitalized
Lease Obligation, the lease), construction, installation or improvement of any
after-acquired real or personal tangible property which, in the reasonable good
faith judgment of the Issuer’s Board of Directors, is directly related to a
Related Business of the Issuer or any of its Subsidiaries and which is incurred
concurrently with such acquisition, construction, installation or improvement
and is secured only by the assets so financed.


 


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


 


“Qualified Capital Stock” means, with respect
to any Person, any Capital Stock of such Person that is not Disqualified
Capital Stock.


 


“Qualified Equity Offering” means
(i) an underwritten public offering or (ii) a private offering placed
through one or more securities firms that is comparable to a public offering
except that it is not registered with the Commission, in each case of Qualified
Capital Stock of the Issuer or Qualified Capital Stock of any direct holding
company of the Issuer (to the extent that the Net Cash Proceeds thereof have been
contributed by such holding company to the Issuer).


 


“Qualified Exchange” means:


 


(1)                                 
any legal defeasance,
redemption, retirement, repurchase or other acquisition of Capital Stock, or
Indebtedness of the Issuer issued on or after the Issue Date with the Net Cash
Proceeds received by the Issuer from the substantially concurrent sale of its
Qualified Capital Stock (other than to a Subsidiary); or


 


(2)                                 
any issuance of
Qualified Capital Stock of the Issuer in exchange for any Capital Stock or
Indebtedness of the Issuer issued on or after the Issue Date.


 


“Recourse Indebtedness” means Indebtedness
(a) as to which the Issuer or one of its Subsidiaries (1) provides
credit support of any kind (including any undertaking,


 


26
















 


agreement or instrument that would constitute
Indebtedness), (2) is directly or indirectly liable (as a guarantor or
otherwise), or (3) constitutes the lender, or (b) a default with
respect to which (including any rights that the holders thereof may have to
take enforcement action against an Unrestricted Subsidiary) would permit (upon
notice, lapse of time or both) a holder of any other Indebtedness of the Issuer
or any of its Subsidiaries (other than the Notes and Guarantees) to declare a
default on such other Indebtedness or cause the payment thereof to be
accelerated or payable prior to its stated maturity.


 


“Reference Period” with regard to any
Person means the four full fiscal quarters (or such lesser period during which
such Person has been in existence) ended immediately preceding any date upon
which any determination is to be made pursuant to the terms of the Notes or
this Indenture.


 


“Refinancing Indebtedness” means
Indebtedness (including Disqualified Capital Stock) (a) issued in exchange
for, or the proceeds from the issuance and sale of which are used substantially
concurrently to repay, redeem, defease, refund, refinance, discharge or
otherwise retire for value, in whole or in part, or (b) constituting an
amendment, modification or supplement to, or a deferral or renewal of ((a) and
(b) above are, collectively, a “Refinancing”),
any Indebtedness (including Disqualified Capital Stock) in a principal amount
or, in the case of Disqualified Capital Stock, liquidation preference, not to
exceed (after deduction of reasonable and customary fees and expenses incurred
in connection with the Refinancing plus the amount of any premium paid in
connection with such Refinancing) the lesser of (1) the principal amount or,
in the case of Disqualified Capital Stock, liquidation preference, of the
Indebtedness (including Disqualified Capital Stock) so Refinanced and
(2) if such Indebtedness being Refinanced was issued with an original
issue discount, the accreted value thereof (as determined in accordance with
GAAP) at the time of such Refinancing; provided,
that (A) such Refinancing Indebtedness shall only be used to refinance
outstanding Indebtedness (including Disqualified Capital Stock) of such Person
issuing such Refinancing Indebtedness, (B) such Refinancing Indebtedness
shall (x) not have an Average Life shorter than the Indebtedness
(including Disqualified Capital Stock) to be so refinanced at the time of such
Refinancing and (y) in all respects, be no less contractually subordinated
or junior, if applicable, to the rights of Holders of the Notes than was the
Indebtedness (including Disqualified Capital Stock) to be refinanced,
(C) such Refinancing Indebtedness shall have a final stated maturity or
redemption date, as applicable, no earlier than the final stated maturity or
redemption date, as applicable, of the Indebtedness (including Disqualified
Capital Stock) to be so refinanced or, if sooner, 91 days after the Stated
Maturity of the Notes, and (D) such Refinancing Indebtedness shall be
secured (if secured) in a manner no more adverse to the Holders of the Notes
than the terms of the Liens (if any) securing such refinanced Indebtedness,
including, without limitation, the amount of Indebtedness secured shall not be
increased.


 


“Reg S Permanent Global Note” means
one or more permanent Global Notes bearing the Private Placement Legend, that
will be issued in an aggregate amount of denominations equal in total to the
outstanding principal amount of the Reg S Temporary Global Note upon
expiration of the Distribution Compliance Period.


 


27
















 


“Reg S Temporary Global Note” means
one or more temporary Global Notes bearing the Private Placement Legend and the
Reg S Temporary Global Note Legend, issued in an aggregate amount of denominations
equal in total to the outstanding principal amount of the Notes initially sold
in reliance on Rule 903 of Regulation S.


 


“Reg S Temporary Global Note Legend”
means the legend set forth in Section 2.6(g)(iii) hereof, which is
required to be placed on all Reg S Temporary Global Notes issued under
this Indenture.


 


“Registration Rights Agreement” means the
Registration Rights Agreement, dated as of the Issue Date, by and among the
Issuer and the other parties named on the signature pages thereof, and any
substantially identical registration rights agreement with respect to any
Additional Notes, as the context requires, as such agreement may be amended,
modified or supplemented from time to time.


 


“Regulation S” means Regulation S
promulgated under the Securities Act, as it may be amended from time to time,
and any successor provision thereto.


 


“Regulation S Global Note” means a
Reg S Temporary Global Note or a Reg S Permanent Global Note, as the
case may be.


 


“Related Business” means the business
conducted (or proposed to be conducted) by the Issuer and its Subsidiaries as
of the Issue Date and any and all businesses that in the reasonable good faith
judgment of the Issuer’s Board of Directors are materially related businesses.


 


“Related Parties” means, with respect to
the Principal, any Person who controls, is controlled by or is under common
control with the Principal; provided,
that for purposes of this definition “control” means the beneficial ownership
of more than 80% of the total voting power of a Person normally entitled to
vote in the election of directors, managers or trustees, as applicable, of a
Person.


 


“Responsible Officer” shall mean, when used
with respect to the Trustee, any officer within the corporate trust department
of the Trustee, including any vice president, assistant vice president,
assistant treasurer, trust officer or any other officer of the Trustee who
customarily performs functions similar to those performed by the persons who at
the time shall be such officers, respectively, or to whom any corporate trust
matter is referred because of such person’s knowledge of and familiarity with
the particular subject.


 


“Restricted Definitive Note” means one or
more Definitive Notes bearing the Private Placement Legend, issued under this
Indenture.


 


“Restricted Global Note” means one or more
Global Notes bearing the Private Placement Legend, issued under this Indenture;
provided, that in no case shall
an Exchange Note issued in accordance with this Indenture and the terms of the
Registration Rights Agreement be a Restricted Global Note.


 


28
















 


“Restricted Investment” means, in one or a
series of related transactions, any Investment, other than a Permitted
Investment.


 


“Restricted Payment” means, with respect to
any Person:


 


(a)                                 
the declaration or
payment of any dividend or other distribution in respect of Equity Interests of
such Person,


 


(b)                                
any payment (except
to the extent with Qualified Capital Stock) on account of the purchase,
redemption or other acquisition or retirement for value of Equity Interests of
such Person,


 


(c)                                 
other than with the
proceeds from the substantially concurrent sale of, or in exchange for,
Refinancing Indebtedness any purchase, redemption, or other acquisition or
retirement for value of, any payment in respect of, any amendment of the terms
of or any defeasance of, any Subordinated Indebtedness, directly or indirectly,
by such Person or a Subsidiary of such Person prior to the scheduled maturity,
any scheduled repayment of principal, or scheduled sinking fund payment, as the
case may be, of such Indebtedness and


 


(d)                                
any Restricted
Investment by such Person;


 


provided,
however, that the
term “Restricted Payment” does not include (1) any dividend, distribution
or other payment on or with respect to Equity Interests of an issuer to the
extent payable solely in shares of Qualified Capital Stock of such issuer, or
(2) any dividend, distribution or other payment to the Issuer, or to any
of the Guarantors, by the Issuer or any of its Subsidiaries and any Investment
in any Guarantor by the Issuer or any Subsidiary.


 


“Rule 144” means Rule 144
promulgated under the Securities Act, as it may be amended from time to time,
and any successor provision thereto.


 


 “Securities Act” means the Securities Act
of 1933, as amended, and the rules and regulations of the Commission
promulgated thereunder.


 


“Shelf Registration” shall have the meaning
set forth in the Registration Rights Agreement.


 


“Significant Subsidiary” shall have the
meaning set forth in Regulation S-X under the Securities Act, as in effect
on the Issue Date.


 


“Special Record Date” means, for payment of
any Defaulted Interest, a date fixed by the Paying Agent pursuant to
Section 2.12 hereof.


 


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


 


29
















 


“Stated Maturity,” when used with respect
to any Note, means July 15, 2011.


 


“Subordinated Indebtedness” means
Indebtedness of the Issuer or a Guarantor that is contractually subordinated to
the Notes or such Guarantee, as applicable, in any respect.


 


“Subsidiary,” with respect to any Person,
means (1) a corporation a majority of whose Equity Interests with voting
power, under ordinary circumstances, to elect directors is at the time,
directly or indirectly, owned by such Person, by such Person and one or more
Subsidiaries of such Person or by one or more Subsidiaries of such Person, and
(2) any other Person (other than a corporation) in which such Person, one
or more Subsidiaries of such Person, or such Person and one or more
Subsidiaries of such Person, directly or indirectly, at the date of
determination thereof has a majority ownership interest, or (3) a
partnership in which such Person or a Subsidiary of such Person is, at the
time, a general partner and in which such Person, directly or indirectly, at
the date of determination thereof has a majority ownership interest. 
Notwithstanding the foregoing, an Unrestricted Subsidiary shall not be a
Subsidiary of the Issuer or of any Subsidiary of the Issuer for any purpose
under this Indenture (including the definitions herein).  Unless the
context requires otherwise, “Subsidiary” means each direct and indirect
Subsidiary of the Issuer.


 


“TIA” means the Trust Indenture Act of 1939
(15 U.S.C. §§ 77aaa-77bbbb) as in effect on the date on which this
Indenture is qualified under the TIA.


 


“Transfer Restricted Notes” means Global
Notes and Definitive Notes that bear or are required to bear the Private
Placement Legend, issued under this Indenture.


 


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


 


“Unrestricted Definitive Note” means one or
more Definitive Notes that do not bear and are not required to bear the Private
Placement Legend, issued under this Indenture.


 


“Unrestricted Global Note” means one or
more permanent Global Notes representing a series of Notes that does not bear
and is not required to bear the Private Placement Legend, issued under this
Indenture.


 


“Unrestricted Subsidiary” means:


 


(1)                                 
any subsidiary of the
Issuer that, at or prior to the time of determination, shall have been
designated by the Issuer’s Board of Directors as an Unrestricted Subsidiary; provided, that such subsidiary at the time
of such designation (a) has no Recourse Indebtedness; (b) is not
party to any agreement, contract, arrangement or understanding with the Issuer
or any Subsidiary of the Issuer unless the terms of any such agreement,
contract, arrangement or understanding are no less favorable to the Issuer or
such Subsidiary than those that might be obtained at the time from Persons who
are not Affiliates of the Issuer; (c) is a Person with respect to which
neither


 


30
















 


the Issuer nor any of the Subsidiaries has any direct
or indirect obligation (x) to subscribe for additional Equity Interests or
(y) to maintain or preserve such Person’s financial condition or to cause
such Person to achieve any specified levels of operating results; and
(d) does not directly, indirectly or beneficially own any Equity Interests
of, or Subordinated Indebtedness of, or own or hold any Lien on any property
of, the Issuer or any other Subsidiary of the Issuer, and


 


(2)                                 
any subsidiary of an
Unrestricted Subsidiary.


 


The Issuer’s Board of
Directors may designate any Unrestricted Subsidiary to be a Subsidiary, provided, that (1) no Default or
Event of Default is existing or will occur as a consequence thereof and
(2) immediately after giving effect to such designation, on a pro forma basis, the Issuer could incur at
least $1.00 of Indebtedness pursuant to the Debt Incurrence Ratio set forth in
Section 4.7.  Each such designation shall be evidenced by filing with
the Trustee a certified copy of the resolution giving effect to such designation
and an Officers’ Certificate certifying that such designation complied with the
foregoing conditions.


 


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


 


“U.S. Person” means a U.S. person as
defined in Rule 902(o) under the Securities Act.


 


“Voting Equity Interests” means Equity
Interests which at the time are entitled to vote in the election of, as
applicable, directors, members or partners generally


 


“Wholly Owned Subsidiary” means a
Subsidiary all the Equity Interests of which (other than directors’ qualifying
shares) are owned by the Issuer or one or more Wholly Owned Subsidiaries of the
Issuer or a combination thereof.


 


“Working
Capital” means,
with respect to any Person as of any date of determination, the difference
determined by subtracting (a) current liabilities (excluding the current
portion of long-term debt) of such Person and its Subsidiaries as of such date
from (b) current assets (other than cash and Cash Equivalents) of such
Person and its Subsidiaries as of such date.


 


Section 1.2                                     
OTHER DEFINITIONS


 


	
  Term

  	
   

  	
  Defined
  in Section

  
	
  “360-Day Period”

  	
   

  	
   

  	
  4.13

  
	
  “Acceleration Notice”

  	
   

  	
   

  	
  6.1

  
	
  “Affiliate Transaction”

  	
   

  	
   

  	
  4.12

  
	
  “Asset Sale”

  	
   

  	
   

  	
  4.13

  
	
  “Asset Sale Amount”

  	
   

  	
   

  	
  4.13

  



 


31
















 


	
  “Asset Sale Notice”

  	
   

  	
   

  	
  4.13

  
	
  “Asset Sale Offer”

  	
   

  	
   

  	
  4.13

  
	
  “Asset Sale Offer
  Amount”

  	
   

  	
   

  	
  4.13

  
	
  “Asset Sale Offer
  Price”

  	
   

  	
   

  	
  4.13

  
	
  “Asset Sale Purchase
  Date”

  	
   

  	
   

  	
  4.13

  
	
  “Authentication Order”

  	
   

  	
   

  	
  2.2

  
	
  “Benefited Party”

  	
   

  	
   

  	
  11.1

  
	
  “Change of Control
  Notice”

  	
   

  	
   

  	
  4.14

  
	
  “Change of Control
  Offer”

  	
   

  	
   

  	
  4.14

  
	
  “Change of Control
  Purchase Date”

  	
   

  	
   

  	
  4.14

  
	
  “Change of Control
  Purchase Price”

  	
   

  	
   

  	
  4.14

  
	
  “Covenant Defeasance”

  	
   

  	
   

  	
  8.3

  
	
  “Debt Incurrence Ratio”

  	
   

  	
   

  	
  4.7

  
	
  “Defaulted Interest”

  	
   

  	
   

  	
  2.12

  
	
  “DTC”

  	
   

  	
   

  	
  2.3

  
	
  “Event of Default”

  	
   

  	
   

  	
  6.1

  
	
  “Excess Proceeds”

  	
   

  	
   

  	
  4.13

  
	
  “Guarantee Obligations”

  	
   

  	
   

  	
  11.1

  
	
  “incur” or “incurrence”

  	
   

  	
   

  	
  4.7

  
	
  “Incurrence Date”

  	
   

  	
   

  	
  4.7

  
	
  “Investment Company
  Act”

  	
   

  	
   

  	
  4.16

  
	
  “Issuer”

  	
   

  	
   

  	
  Preamble

  
	
  “Legal Defeasance”

  	
   

  	
   

  	
  8.2

  
	
  “Notes”

  	
   

  	
   

  	
  Preamble

  
	
  “Paying Agent”

  	
   

  	
   

  	
  2.3

  
	
  “Refinancing”

  	
   

  	
   

  	
  Definition
  of Permitted Refinancing Indebtedness

  
	
  “Registrar”

  	
   

  	
   

  	
  2.3

  
	
  “Redemption Date”

  	
   

  	
   

  	
  3.8

  
	
  “Series A Notes”

  	
   

  	
   

  	
  Preamble

  
	
  “Series B Notes”

  	
   

  	
   

  	
  Preamble

  
	
  “Transaction Date”

  	
   

  	
   

  	
  Definition
  of Consolidated Coverage Ratio

  
	
   

  	
   

  	
   

  	
   

  	
   

  



 


Section 1.3                                     
INCORPORATION BY
REFERENCE OF TRUST INDENTURE ACT


 


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:


 


“Commission” means the Securities and
Exchange Commission;


 


32
















 


“obligor” on the Notes means the Issuer,
each Guarantor and any successor obligor upon the Notes.


 


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


 


Section 1.4                                     
RULES OF CONSTRUCTION


 


Unless the context
otherwise requires:


 


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


 


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


 


(3)          
“or” is not exclusive;


 


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


 


(5)          
provisions apply to successive events and transactions;


 


(6)          
“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;


 


(7)          
references to sections of or rules under the Securities Act and the Exchange
Act shall be deemed to include substitute, replacement of successor sections or
rules adopted by the Commission from time to time; and


 


(8)          
references to the “Intercreditor Agreement” shall mean if the Intercreditor
Agreement is then in effect.


 


ARTICLE II

THE NOTES


 


Section 2.1                                     
FORM AND DATING


 


(a)          
General.  The Notes and the
Trustee’s certificate of authentication shall be substantially in the form of
Exhibit A hereto; provided,
that the form of the Exchange Notes shall include such variations as are
permitted or required by the Registration Rights Agreement.


 


The Notes may have
notations, legends or endorsements required by law, stock exchange rule,
depository rule or usage.  Each Note shall be dated the date of its
issuance and shall show the date of its authentication.  The Notes shall
be in denominations of $1,000 and integral multiples thereof.


 


33
















 


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


 


(b)          
Global Notes.  Notes issued
in global form shall be substantially in the form of Exhibit A attached
hereto (including the Global Note Legend thereon and the “Schedule of Exchanges
of Interests in the Global Note” attached thereto).  Notes issued in
definitive form shall be substantially in the form of Exhibit A attached
hereto (but without the Global Note Legend thereon and without the “Schedule of
Exchanges of Interests in the Global Note” attached thereto).  Each Global
Note shall represent such of the outstanding Notes as shall be specified
therein and each shall provide that it shall represent the aggregate principal
amount of outstanding Notes from time to time endorsed thereon and that the
aggregate principal amount of outstanding Notes represented thereby may from
time to time be reduced or increased, as appropriate, to reflect exchanges and
redemptions.  Any endorsement of a Global Note to reflect the amount of
any increase or decrease in the aggregate principal amount of outstanding Notes
represented thereby shall be made by the Trustee or the Notes Custodian, at the
direction of the Trustee, in accordance with instructions given by the Holder
thereof as required by Section 2.6 hereof.


 


(c)          
Euroclear and Clearstream Procedures
Applicable.  The provisions of the “Operating Procedures of the
Euroclear System” and “Terms and Conditions Governing Use of Euroclear” and the
“General Terms and Conditions of Clearstream Banking Luxembourg” and “Customer
Handbook” of Clearstream Banking Luxembourg in effect at the relevant time
shall be applicable to transfers of beneficial interests in the
Regulation S Global Notes that are held by Participants through Euroclear
or Clearstream Banking Luxembourg.


 


Section 2.2                                     
EXECUTION AND
AUTHENTICATION


 


Two Officers shall sign
the Notes for the Issuer by manual or facsimile signature.  In the case of
Definitive Notes, such signatures may be imprinted or otherwise reproduced on
such Notes.  If an Officer whose signature is on a Note no longer holds
that office at the time a Note is authenticated, the Note shall nevertheless be
valid.  A Note shall not be valid until authenticated by the manual
signature of the Trustee.  The signature shall be conclusive evidence that
the Note has been authenticated under this Indenture.  The Trustee shall,
upon a written order of the Issuer signed by an Officer (an “Authentication Order”), authenticate Notes
for issuance up to the aggregate principal amount stated in such Authentication
Order; provided that Notes
authenticated for issuance on the Issue Date shall not exceed $125,000,000 in
aggregate principal amount.  The Trustee may appoint an authenticating
agent acceptable to the Issuer to authenticate Notes.  An authenticating
agent may authenticate Notes whenever the Trustee may do so.  Each
reference in this Indenture to authentication by the Trustee includes
authentication


 


34
















 


by such agent.  An authenticating agent has the
same rights as an Agent to deal with Holders or an Affiliate of the Issuer.


 


Section 2.3                                     
REGISTRAR, PAYING
AGENT AND DEPOSITARY


 


The Issuer shall maintain
an office or agency in the Borough of Manhattan, The City of New York, which
shall initially be U.S. Bank National Association, where (i) Notes may be
presented for registration of transfer or for exchange (“Registrar”) and (ii) Notes may be
presented for payment (“Paying Agent”). 
The Registrar shall keep a register of the Notes and of their transfer and
exchange.  The Issuer may appoint one or more co-registrars and one or
more additional paying agents.  The term “Registrar”
includes any co-registrar and the term “Paying
Agent” includes any additional paying agent.  The Issuer may
change any Paying Agent or Registrar without notice to any Holder.  The
Issuer shall notify the Trustee in writing of the name and address of any Agent
not a party to this Indenture.  If the Issuer fails to appoint or maintain
another entity as Registrar or Paying Agent, the Trustee shall act as
such.  The Issuer or any of the Subsidiaries may act as Paying Agent or
Registrar.  The Issuer initially appoints The Depository Trust Company (“DTC”) to act as Depositary with respect to
the Global Notes.  The Issuer initially appoints the Trustee to act as the
Registrar and Paying Agent and to act as Notes Custodian with respect to the
Global Notes.


 


Section 2.4                                     
PAYING AGENT TO HOLD
MONEY IN TRUST


 


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


 


Section 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 all Holders and shall otherwise
comply with TIA § 312(a).  If the Trustee is not the Registrar, the Issuer
shall furnish, or shall cause the Registrar (if other than the Issuer or one of
the Subsidiaries) to furnish, to the Trustee at least seven Business Days
before each Interest Payment Date and at such other times as the Trustee may
request in writing, a list in such form and as of


 


35
















 


such date as the Trustee may reasonably require of the
names and addresses of the Holders of Notes and the Issuer shall otherwise
comply with TIA § 312(a).


 


Section 2.6                                     
TRANSFER AND EXCHANGE


 


(a)          
Transfer and Exchange of Global Notes. 
A Global Note may not be transferred except as a whole by the Depositary to a
nominee of the Depositary, by a nominee of the Depositary to the Depositary or
to another nominee of the Depositary, or by the Depositary or any such nominee
to a successor Depositary or a nominee of such successor Depositary.  All
Global Notes shall be exchanged by the Issuer for Definitive Notes if
(i) the Issuer delivers to the Trustee notice from the Depositary that (x)
the Depositary is unwilling or unable to continue to act as Depositary for the
Global Notes, or (y) the Depositary is no longer a clearing agency registered
under the Exchange Act, and in either case, the Issuer fails to appoint a
successor Depositary within 90 days of such notice from the Depositary,
(ii) the Issuer, in the Issuer’s sole discretion, determines that the
Global Notes (in whole but not in part) should be exchanged for Definitive
Notes and delivers a written notice to such effect to the Trustee or
(iii) there shall have occurred and be continuing a Default or Event of
Default with respect to the Notes; provided,
that in no event shall the Reg S Temporary Global Note be exchanged by the
Issuer for Definitive Notes prior to (x) the expiration of the Distribution
Compliance Period and (y) the receipt by the Registrar of any certificate
identified by the Issuer and the Issuer’s counsel to be required pursuant to
Rule 903 or Rule 904 under the Securities Act.  Upon the occurrence
of any of the preceding events in (i), (ii) or (iii) above, Definitive Notes
shall be issued in such names as the Depositary shall instruct the
Trustee.  Global Notes also may be exchanged or replaced, in whole or in
part, as provided in Sections 2.7 and 2.10 hereof.  Every Note
authenticated and delivered in exchange for, or in lieu of, a Global Note or
any portion thereof, pursuant to this Section 2.6 or Section 2.7 or
2.10, shall be authenticated and delivered in the form of, and shall be, a Global
Note.  A Global Note may not be exchanged for another Note other than as
provided in this Section 2.6(a), however, beneficial interests in a Global
Note may be transferred and exchanged as provided in Section 2.6(b), (c)
or (f) hereof.


 


(b)          
Transfer and Exchange of Beneficial
Interests in the Global Notes.  The transfer and exchange of
beneficial interests in the Global Notes shall be effected through the
Depositary, in accordance with the provisions of this Indenture and the
Applicable Procedures.  Beneficial interests in the Restricted Global
Notes shall be subject to restrictions on transfer comparable to those set
forth herein to the extent required by the Securities Act.  Transfers of
beneficial interests in the Global Notes also shall require compliance with
either subparagraph (1) or (2) below, as applicable, as well as one or
more of the other following subparagraphs, as applicable:


 


(1)          
Transfer of Beneficial Interests in the Same
Global Note.  Beneficial interests in any Restricted Global Note
may be transferred to Persons who take delivery thereof in the form of a
beneficial interest in the same Restricted Global Note in accordance with the
transfer restrictions set forth in the Private Placement Legend; provided, however, that prior to the
expiration of the Distribution Compliance Period, transfers of beneficial
interests in the Reg S Temporary Global Note may not be made to


 


36
















 


a U.S. Person or for the account or benefit of a U.S.
Person (other than an Initial Purchaser).  Beneficial interests in any
Unrestricted Global Note may be transferred to Persons who take delivery
thereof in the form of a beneficial interest in an Unrestricted Global
Note.  No written orders or instructions shall be required to be delivered
to the Registrar to effect the transfers described in this
Section 2.6(b)(1), but the Issuer or the Trustee may request an Opinion of
Counsel.


 


(2)          
All Other Transfers and Exchanges of
Beneficial Interests in Global Notes (including for Definitive Notes). 
In connection with all transfers and exchanges of beneficial interests that are
not subject to Section 2.6(b)(1), the transferor of such beneficial
interest must deliver to the Registrar either (A) (1) a written order from
a Participant or an Indirect Participant, in each case, given to the Depositary
in accordance with the Applicable Procedures directing the Depositary to credit
or cause to be credited a beneficial interest in another Global Note in an
amount equal to the beneficial interest to be transferred or exchanged and
(2) instructions given in accordance with the Applicable Procedures
containing information regarding the Participant account to be credited with
such increase or (B) (1) a written order from a Participant or an Indirect
Participant, in each case, given to the Depositary in accordance with the
Applicable Procedures directing the Depositary to cause to be issued a
Definitive Note in an amount equal to the beneficial interest to be transferred
or exchanged and (2) instructions given by the Depositary to the Registrar
containing information regarding the Person in whose name such Definitive Note
shall be registered to effect the transfer or exchange referred to in (B)(1)
above; provided, that in no event
shall Definitive Notes be issued upon the transfer or exchange of beneficial
interests in the Reg S Temporary Global Note prior to (x) the expiration
of the Distribution Compliance Period and (y) the receipt by the Registrar of
any certificates identified by the Issuer or the Issuer’s counsel to be
required pursuant to Rule 903 and Rule 904 under the Securities
Act.  Upon consummation of an Exchange Offer by the Issuer in accordance
with Section 2.6(f) hereof, the requirements of this
Section 2.6(b)(2) shall be deemed to have been satisfied upon receipt
by the Registrar of the instructions contained in the Letter of Transmittal
delivered by the Holder of such beneficial interests in the Restricted Global
Notes.  Upon satisfaction of all of the requirements for transfer or
exchange of beneficial interests in Global Notes contained in this Indenture
and the Notes or otherwise applicable under the Securities Act, the Trustee
shall adjust the principal amount of the relevant Global Note(s) pursuant to
Section 2.6(h) hereof.


 


(3)          
Transfer of Beneficial Interests to Another
Restricted Global Note.  A beneficial interest in any
Restricted Global Note may be transferred to a Person who takes delivery
thereof in the form of a beneficial interest in another Restricted Global Note
if the transfer complies with the requirements of Section 2.6(b)(2) and
the Registrar receives the following:


 


(A)         
if the transferee will take delivery in the form of a beneficial interest in
the 144A Global Note, then the transferor must deliver a certificate in the
form of Exhibit B hereto, including the certifications in item
(1) thereof;


 


37
















 


(B)          
if the transferee will take delivery in the form of a beneficial interest in
the 501 Global Note, then the transferor must deliver a certificate in the form
of Exhibit B hereto, including the certifications in item
(3)(d) thereof; or


 


(C)          
if the transferee will take delivery in the form of a beneficial interest in
the Reg S Temporary Global Note or the Reg S Permanent Global Note,
then the transferor must deliver a certificate in the form of Exhibit B
hereto, including the certifications in item (2) thereof.


 


(4)          
Transfer and Exchange of Beneficial
Interests in a Restricted Global Note for Beneficial Interests in an
Unrestricted Global Note.  A beneficial interest in any
Restricted Global Note may be exchanged by any holder thereof for a beneficial
interest in an Unrestricted Global Note or transferred to a Person who takes
delivery thereof in the form of a beneficial interest in an Unrestricted Global
Note if the exchange or transfer complies with the requirements of
Section 2.6(b)(2) and:


 


(A)         
such exchange or transfer is effected pursuant to the Exchange Offer in
accordance with the Registration Rights Agreement and Section 2.6(f)
hereof, and the holder of the beneficial interest to be transferred, in the
case of an exchange, or the transferee, in the case of a transfer, certifies in
the applicable Letter of Transmittal that it is not (1) a Broker-Dealer,
(2) a Person participating in the distribution of the Exchange Notes or
(3) a Person who is an affiliate (as defined in Rule 144) of the
Issuer;


 


(B)          
such transfer is effected pursuant to the Shelf Registration in accordance with
the Registration Rights Agreement and a certificate to the effect set forth in
Exhibit B hereto, including the certifications in item
(3)(c) thereof, is delivered by the transferor;


 


(C)          
such transfer is effected by a Broker-Dealer pursuant to the Exchange Offer
Registration Statement in accordance with the Registration Rights Agreement and
a certificate to the effect set forth in Exhibit B hereto, including the
certifications in item (3)(c) thereof, is delivered by the transferor; or


 


(D)         
the Registrar receives the following: (1) if the holder of such beneficial
interest in a Restricted Global Note proposes to exchange such beneficial
interest for a beneficial interest in an Unrestricted Global Note, a
certificate from such holder in the form of Exhibit C hereto, including
the certifications in item (1)(a) thereof; or (2) if the holder of
such beneficial interest in a Restricted Global Note proposes to transfer such
beneficial interest to a Person who shall take delivery thereof in the form of
a beneficial interest in an Unrestricted Global Note, a certificate from such
holder in the form of Exhibit B hereto, including the certifications in
item (4) thereof; and, in each such case set forth in this subparagraph
(D), an Opinion of Counsel in form, and from legal counsel, reasonably
acceptable to the Registrar and the Issuer to the


 


38
















 


effect that such exchange or transfer is in compliance
with the Securities Act and that the restrictions on transfer contained herein
and in the Private Placement Legend are no longer required in order to maintain
compliance with the Securities Act.


 


If any such transfer is
effected pursuant to subparagraph (B) or (D) above at a time when an
Unrestricted Global Note has not yet been issued, the Issuer shall issue and,
upon receipt of an Authentication Order in accordance with Section 2.2
hereof, the Trustee shall authenticate one or more Unrestricted Global Notes in
an aggregate principal amount equal to the aggregate principal amount of
beneficial interests transferred pursuant to subparagraph (B) or (D)
above.  Beneficial interests in an Unrestricted Global Note cannot be
exchanged for, or transferred to Persons who take delivery thereof in the form
of, a beneficial interest in a Restricted Global Note.


 


(c)          
Transfer and Exchange of Beneficial
Interests for Definitive Notes.  Transfer and exchange of
beneficial interests in the Global Notes for Definitive Notes shall be made
subject to compliance with this Section 2.6(c), and the requesting Holder
shall provide any certifications, documents and information, as applicable,
required pursuant to the following provisions of this
Section 2.6(c).  Upon receipt of such applicable documentation, the
Trustee shall cause the aggregate principal amount of the applicable Restricted
Global Note or Unrestricted Global Note, as applicable, to be reduced
accordingly pursuant to Section 2.6(h) hereof, and the Issuer shall
execute and, upon receipt of an Authentication Order pursuant to
Section 2.2, the Trustee shall authenticate and deliver to the Person
designated in the instructions a Restricted Definitive Note or an Unrestricted
Definitive Note, as applicable, in the appropriate principal amount.  Any
Definitive Note issued in exchange for a beneficial interest in a Global Note
pursuant to this Section 2.6(c) shall be registered in such name or
names and in such authorized denomination or denominations as the Holder of
such beneficial interest shall instruct the Registrar through instructions from
the Depositary and the Participant or Indirect Participant.  The Trustee
shall deliver such Definitive Notes to the Persons in whose names such
Definitive Notes are so registered.


 


(1)          
Beneficial Interests in Restricted Global
Notes to Restricted Definitive Notes.  If any holder of a
beneficial interest in a Restricted Global Note proposes to exchange such
beneficial interest for a Restricted Definitive Note or to transfer such
beneficial interest to a Person who takes delivery thereof in the form of a
Restricted Definitive Note, then, upon receipt by the Registrar of the
following documentation:


 


(A)         
if the holder of such beneficial interest in a Restricted Global Note proposes
to exchange such beneficial interest for a Restricted Definitive Note, a
certificate from such holder in the form of Exhibit C hereto, including
the certifications in item (2)(a) thereof;


 


(B)          
if such beneficial interest is being transferred to a QIB in accordance with
Rule 144A, a certificate to the effect set forth in Exhibit B hereto,
including the certifications in item (1) thereof;


 


39
















 


(C)          
if such beneficial interest is being transferred to a Non-U.S. Person in an
offshore transaction in accordance with Rule 903 or Rule 904 under
the Securities Act, a certificate to the effect set forth in Exhibit B
hereto, including the certifications in item (2) thereof;


 


(D)         
if such beneficial interest is being transferred to an Institutional Accredited
Investor in reliance on an exemption from the registration requirements of the
Securities Act other than those listed in subparagraphs (B) and (C) above, a
certificate to the effect set forth in Exhibit B hereto, including the
certifications, certificates and Opinion of Counsel required by item
(3)(d) thereof, if applicable; or


 


(E)          
if such beneficial interest is being transferred to the Issuer or any of the
Subsidiaries, a certificate to the effect set forth in Exhibit B hereto,
including the certifications in item (3)(b) thereof.


 


Any Restricted Definitive Note issued in exchange for
a beneficial interest in a Restricted Global Note pursuant to this
Section 2.6(c)(1) shall bear the Private Placement Legend and shall
be subject to all restrictions on transfer contained therein.


 


(2)          
Beneficial Interests in Restricted Global
Notes to Unrestricted Definitive Notes.  A holder of a
beneficial interest in a Restricted Global Note may exchange such beneficial
interest for an Unrestricted Definitive Note or may transfer such beneficial
interest to a Person who takes delivery thereof in the form of an Unrestricted
Definitive Note only if:


 


(A)         
such exchange or transfer is effected pursuant to the Exchange Offer in
accordance with the Registration Rights Agreement and Section 2.6(f)
hereof, and the holder of such beneficial interest, in the case of an exchange,
or the transferee, in the case of a transfer, certifies in the applicable
Letter of Transmittal that it is not (1) a Broker-Dealer, (2) a
Person participating in the distribution of the Exchange Notes or (3) a
Person who is an affiliate (as defined in Rule 144) of the Issuer;


 


(B)          
such transfer is effected pursuant to the Shelf Registration in accordance with
the Registration Rights Agreement and a certificate to the effect set forth in
Exhibit B hereto, including the certifications in item
(3)(c) thereof, is delivered by the transferor;


 


(C)          
such transfer is effected by a Broker-Dealer pursuant to the Exchange Offer
Registration Statement in accordance with the Registration Rights Agreement and
a certificate to the effect set forth in Exhibit B hereto, including the
certifications in item (3)(c) thereof, is delivered by the transferor; or


 


(D)         
the Registrar receives the following: (1) if the holder of such beneficial
interest in a Restricted Global Note proposes to exchange such beneficial
interest for an Unrestricted Definitive Note, a certificate


 


40
















 


from such holder in the form of Exhibit C hereto,
including the certifications in item (1)(b) thereof; or (2) if the
holder of such beneficial interest in a Restricted Global Note proposes to
transfer such beneficial interest to a Person who shall take delivery thereof
in the form of an Unrestricted Definitive Note, a certificate from such holder
in the form of Exhibit B hereto, including the certifications in item
(4) thereof; and, in each such case set forth in this subparagraph (D), an
Opinion of Counsel in form, and from legal counsel, reasonably acceptable to
the Registrar and the Issuer to the effect that such exchange or transfer is in
compliance with the Securities Act and that the restrictions on transfer
contained herein and in the Private Placement Legend are no longer required in
order to maintain compliance with the Securities Act.


 


Beneficial interests in
an Unrestricted Global Note cannot be exchanged for, or transferred to Persons
who take delivery thereof in the form of, a Restricted Definitive Note.


 


(3)          
Beneficial Interests in Unrestricted Global
Notes to Unrestricted Definitive Notes.  If any holder of a
beneficial interest in an Unrestricted Global Note proposes to exchange such
beneficial interest for an Unrestricted Definitive Note or to transfer such
beneficial interest to a Person who takes delivery thereof in the form of an
Unrestricted Definitive Note, then such holder shall satisfy the applicable
conditions set forth in Section 2.6(b)(2) hereof.  Any Unrestricted
Definitive Note issued in exchange for a beneficial interest pursuant to this
Section 2.6(c)(3) shall not bear the Private Placement Legend.


 


(4)          
Transfer or Exchange of Reg S Temporary
Global Notes.  Notwithstanding the other provisions of this
Section 2.6, a beneficial interest in the Reg S Temporary Global Note
may not be (A) exchanged for a Definitive Note prior to (x) the expiration of
the Distribution Compliance Period (unless such exchange is approved by the
Issuer, does not require an investment decision on the part of the Holder
thereof and does not violate the provisions of Regulation S) and (y) the
receipt by the Registrar of any certificates identified by the Issuer or their
counsel to be required pursuant to Rule 903(b)(3)(ii)(B) under the
Securities Act or (B) transferred to a Person who takes delivery thereof in the
form of a Definitive Note prior to the events set forth in clause (A) above or
unless the transfer is pursuant to an exemption from the registration
requirements of the Securities Act other than Rule 903 or Rule 904.


 


(d)          
Transfer and Exchange of Definitive Notes
for Beneficial Interests.  Transfer and exchange of Definitive
Notes for beneficial interests in the Global Notes shall be made subject to
compliance with this Section 2.6(d), and the requesting Holder shall
provide any certifications, documents and information, as applicable, required
pursuant to the following provisions of this Section 2.6(d).  Upon
receipt from such Holder of such applicable documentation and the surrender to
the Registrar of the Definitive Notes duly endorsed or accompanied by a written
instruction of transfer in form satisfactory to the Registrar, duly executed by
such Holder or by its attorney, duly authorized in writing, the Registrar shall
register the transfer or exchange of the Definitive Notes.  The Trustee
shall cancel such Definitive Notes so surrendered and


 


41
















 


cause the aggregate principal amount of the applicable
Restricted Global Note or Unrestricted Global Note, as applicable, to be
increased accordingly pursuant to Section 2.6(h) hereof.


 


(1)          
Restricted Definitive Notes to Beneficial
Interests in Restricted Global Notes.  If any Holder of a
Restricted Definitive Note proposes to exchange such Note for a beneficial
interest in a Restricted Global Note or to transfer such Restricted Definitive
Notes to a Person who takes delivery thereof in the form of a beneficial
interest in a Restricted Global Note, then, upon receipt by the Registrar of
the following documentation:


 


(A)         
if the Holder of such Restricted Definitive Note proposes to exchange such Note
for a beneficial interest in a Restricted Global Note, a certificate from such
Holder in the form of Exhibit C hereto, including the certifications in
item (2)(b) thereof;


 


(B)          
if such Restricted Definitive Note is being transferred to a QIB in accordance
with Rule 144A, a certificate to the effect set forth in Exhibit B
hereto, including the certifications in item (1) thereof;


 


(C)          
if such Restricted Definitive Note is being transferred to a Non-U.S. Person in
an offshore transaction in accordance with Rule 903 or Rule 904 under
the Securities Act, a certificate to the effect set forth in Exhibit B
hereto, including the certifications in item (2) thereof; or


 


(D)         
if such Restricted Definitive Note is being transferred to an Institutional
Accredited Investor in accordance with Regulation D under the Securities
Act, a certificate to the effect set forth in Exhibit B hereto, including
the certifications in item (3)(d) thereof;


 


the Trustee shall cancel
the Restricted Definitive Note and increase or cause to be increased the
aggregate principal amount of, in the case of clause (A) above, the appropriate
Restricted Global Note, in the case of clause (B) above, the 144A Global Note,
in the case of clause (C) above, the Regulation S Global Note and in the case
of clause (D) above, the 501 Global Note.


 


(2)          
Restricted Definitive Notes to Beneficial
Interests in Unrestricted Global Notes.  A Holder of a
Restricted Definitive Note may exchange such Note for a beneficial interest in
an Unrestricted Global Note or transfer such Restricted Definitive Note to a
Person who takes delivery thereof in the form of a beneficial interest in an
Unrestricted Global Note only if:


 


(A)         
such exchange or transfer is effected pursuant to the Exchange Offer in accordance
with the Registration Rights Agreement and Section 2.6(f) hereof, and the
Holder, in the case of an exchange, or the transferee, in the case of a
transfer, certifies in the applicable Letter of Transmittal that it is not
(1) a Broker-Dealer, (2) a Person participating in the distribution
of


 


42
















 


the Exchange Notes or (3) a Person who is an
affiliate (as defined in Rule 144) of the Issuer;


 


(B)          
such transfer is effected pursuant to the Shelf Registration in accordance with
the Registration Rights Agreement and a certificate to the effect set forth in
Exhibit B hereto, including the certifications in item
(3)(c) thereof, is delivered by the transferor;


 


(C)          
such transfer is effected by a Broker-Dealer pursuant to the Exchange Offer
Registration Statement in accordance with the Registration Rights Agreement and
a certificate to the effect set forth in Exhibit B hereto, including the
certifications in item (3)(c) thereof, is delivered by the transferor; or


 


(D)         
the Registrar receives the following: (1) if the Holder of such Restricted
Definitive Notes proposes to exchange such Notes for a beneficial interest in
the Unrestricted Global Note, a certificate from such Holder in the form of
Exhibit C hereto, including the certifications in item
(1)(c) thereof; or (2) if the Holder of such Restricted Definitive
Notes proposes to transfer such Notes to a Person who shall take delivery
thereof in the form of a beneficial interest in the Unrestricted Global Note, a
certificate from such Holder in the form of Exhibit B hereto, including
the certifications in item (4) thereof; and, in each such case set forth
in this subparagraph (D), an Opinion of Counsel in form, and from legal
counsel, reasonably acceptable to the Registrar and the Issuer to the effect
that such exchange or transfer is in compliance with the Securities Act and
that the restrictions on transfer contained herein and in the Private Placement
Legend are no longer required in order to maintain compliance with the Securities
Act.


 


(3)          
Unrestricted Definitive Notes to Beneficial
Interests in Unrestricted Global Notes.  A Holder of an
Unrestricted Definitive Note may exchange such Note for a beneficial interest
in an Unrestricted Global Note or transfer such Definitive Notes to a Person
who takes delivery thereof in the form of a beneficial interest in an
Unrestricted Global Note at any time.


 


If any such exchange or
transfer from a Definitive Note to a beneficial interest is effected pursuant
to subparagraphs (2)(B), (2)(D) or (3) of this Section 2.6(d) at a
time when an Unrestricted Global Note has not yet been issued, the Issuer shall
issue and, upon receipt of an Authentication Order in accordance with
Section 2.2 hereof, the Trustee shall authenticate one or more
Unrestricted Global Notes in an aggregate principal amount equal to the
principal amount of Definitive Notes so transferred.


 


(e)          
Transfer and Exchange of Definitive Notes
for Definitive Notes.  Upon request by a Holder of Definitive
Notes and such Holder’s compliance with the provisions of this
Section 2.6(e), the Registrar shall register the transfer or exchange of
Definitive Notes.  Prior to such registration of transfer or exchange, the
requesting Holder


 


43
















 


shall present or surrender to the Registrar the
Definitive Notes duly endorsed or accompanied by a written instruction of
transfer in form satisfactory to the Registrar duly executed by such Holder or
by its attorney, duly authorized in writing.  The Trustee shall cancel any
such Definitive Notes so surrendered, and the Issuer shall execute and, upon
receipt of an Authentication Order pursuant to Section 2.2, the Trustee
shall authenticate and deliver to the Person designated in the instructions a
Restricted Definitive Note or an Unrestricted Definitive Note, as applicable,
in the appropriate principal amount.  Any Definitive Note issued pursuant
to this Section 2.6(e) shall be registered in such name or names and
in such authorized denomination or denominations as the Holder of such
beneficial interest shall instruct the Registrar through instructions from the
Depositary and the Participant or Indirect Participant.  The Trustee shall
deliver such Definitive Notes to the Persons in whose names such Definitive
Notes are so registered.  In addition, the requesting Holder shall provide
any additional certifications, documents and information, as applicable,
required pursuant to the following provisions of this Section 2.6(e).


 


(1)          
Restricted Definitive Notes to Restricted
Definitive Notes.  Any Restricted Definitive Note may be
transferred to and registered in the name of Persons who take delivery thereof
in the form of a Restricted Definitive Note if the Registrar receives the
following:


 


(A)         
if the transfer will be made to a QIB pursuant to Rule 144A, then the
transferor must deliver a certificate in the form of Exhibit B hereto,
including the certifications in item (1) thereof;


 


(B)          
if the transfer will be made pursuant to Rule 903 or Rule 904, then
the transferor must deliver a certificate in the form of Exhibit B hereto,
including the certifications in item (2) thereof;


 


(C)          
if such beneficial interest is being transferred to an Institutional Accredited
Investor in reliance on an exemption from the registration requirements of the
Securities Act other than those listed in subparagraphs (A) and (B) above, then
the transferor must deliver a certificate to the effect set forth in
Exhibit B hereto, including the certifications, certificates and Opinion
of Counsel required by item (3)(d) thereof, if applicable; or


 


(D)         
if such beneficial interest is being transferred to the Issuer or any of the
Subsidiaries, a certificate to the effect set forth in Exhibit B hereto,
including the certifications in item (3)(b) thereof, must be delivered by
the transferor.


 


(2)          
Restricted Definitive Notes to Unrestricted
Definitive Notes.  Any Restricted Definitive Note may be
exchanged by the Holder thereof for an Unrestricted Definitive Note or transferred
to a Person or Persons who take delivery thereof in the form of an Unrestricted
Definitive Note if:


 


44
















 


(A)         
such exchange or transfer is effected pursuant to the Exchange Offer in
accordance with the Registration Rights Agreement and Section 2.6(f)
hereof, and the Holder, in the case of an exchange, or the transferee, in the
case of a transfer, certifies in the applicable Letter of Transmittal that it
is not (1) a Broker-Dealer, (2) a Person participating in the distribution
of the Exchange Notes or (3) a Person who is an affiliate (as defined in
Rule 144) of the Issuer;


 


(B)          
any such transfer is effected pursuant to the Shelf Registration in accordance
with the Registration Rights Agreement and a certificate to the effect set
forth in Exhibit B hereto, including the certifications in item
(3)(c) thereof, is delivered by the transferor;


 


(C)          
any such transfer is effected by a Broker-Dealer pursuant to the Exchange Offer
Registration Statement in accordance with the Registration Rights Agreement and
a certificate to the effect set forth in Exhibit B hereto, including the
certifications in item (3)(c) thereof, is delivered by the transferor; or


 


(D)         
the Registrar receives the following: (1) if the Holder of such Restricted
Definitive Notes proposes to exchange such Notes for an Unrestricted Definitive
Note, a certificate from such Holder in the form of Exhibit D hereto,
including the certifications in item (1)(d) thereof; or (2) if the
Holder of such Restricted Definitive Notes proposes to transfer such Notes to a
Person who shall take delivery thereof in the form of an Unrestricted
Definitive Note, a certificate from such Holder in the form of Exhibit B
hereto, including the certifications in item (4) thereof; and, in each
such case set forth in this subparagraph (D), an Opinion of Counsel in form,
and from legal counsel, reasonably acceptable to the Registrar and the Issuer
to the effect that such exchange or transfer is in compliance with the
Securities Act and that the restrictions on transfer contained herein and in
the Private Placement Legend are no longer required in order to maintain
compliance with the Securities Act.


 


(3)          
Unrestricted Definitive Notes to
Unrestricted Definitive Notes.  A Holder of Unrestricted
Definitive Notes may transfer such Notes to a Person who takes delivery thereof
in the form of an Unrestricted Definitive Note.  Upon receipt of a request
to register such a transfer, the Registrar shall register the Unrestricted Definitive
Notes pursuant to the instructions from the Holder thereof.


 


(f)           
Exchange Offer.  Upon the
occurrence of the Exchange Offer in accordance with the Registration Rights
Agreement, the Issuer shall issue and, upon receipt of an Authentication Order
in accordance with Section 2.2 and an Opinion of Counsel delivered to the
Trustee as to the matters set forth in paragraphs (1) and (2) below of
this Section 2.6(f) and such other matters customarily covered in
connection with an exchange offer as the Trustee may reasonably request, the
Trustee shall authenticate (i) one or more Unrestricted Global Notes in an
aggregate principal amount equal to the sum of (A) the principal amount of the
beneficial interests in the Restricted


 


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Global Notes exchanged or transferred for beneficial
interests in Unrestricted Global Notes in connection with the Exchange Offer
pursuant to Section 2.6(b)(4) and (B) the principal amount of Restricted
Definitive Notes exchanged or transferred for beneficial interests in
Unrestricted Global Notes in connection with the Exchange Offer pursuant to
Section 2.6(d)(2), in each case tendered for acceptance by Persons that
certify in the applicable Letters of Transmittal that (x) they are not
Broker-Dealers, (y) they are not participating in a distribution of the
Exchange Notes and (z) they are not affiliates (as defined in Rule 144) of
the Issuer, and accepted for exchange in the Exchange Offer, and
(ii) Unrestricted Definitive Notes in an aggregate principal amount equal to
the sum of (A) the principal amount of the Restricted Definitive Notes
exchanged or transferred for Unrestricted Definitive Notes in connection with
the Exchange Offer pursuant to Section 2.6(e)(2) and (B) Restricted Global
Notes exchanged or transferred for Unrestricted Definitive Notes in connection
with the Exchange Offer pursuant to Section 2.6(c)(2), in each case
tendered for acceptance by Persons that certify in the applicable Letters of
Transmittal that (x) they are not Broker-Dealers, (y) they are not
participating in a distribution of the Exchange Notes and (z) they are not
affiliates (as defined in Rule 144) of the Issuer, and accepted for
exchange in the Exchange Offer.  Concurrently with the issuance of such
Notes, the Trustee shall cancel any Definitive Notes so surrendered and shall
cause the aggregate principal amount of the applicable Restricted Global Notes
to be reduced accordingly, and the Issuer shall execute and, upon receipt of an
Authentication Order pursuant to Section 2.2, the Trustee shall
authenticate and deliver to the Persons designated by the Holders of Definitive
Notes so accepted Definitive Notes in the appropriate principal amount.


 


The Opinion of Counsel
for the Issuer referenced above shall state that:


 


(1)          
the issuance and sale of the Exchange Notes by the Issuer has been duly
authorized and, when executed by the Issuer and authenticated by the Trustee in
accordance with the provisions of this Indenture and delivered in exchange for
Series A Notes in accordance with this Indenture and the Exchange Offer, the
Exchange Notes shall be entitled to the benefits of this Indenture and shall be
valid and binding obligations of the Issuer, enforceable against the Issuer in
accordance with their terms, subject to customary qualifications including
exceptions for bankruptcy, fraudulent transfer and equitable principles; and


 


(2)          
when the Exchange Notes are issued and executed by the Issuer and authenticated
by the Trustee in accordance with the provisions of this Indenture and
delivered in exchange for Series A Notes in accordance with this Indenture and
the Exchange Offer, the Guarantees by the Guarantors endorsed thereon shall be
entitled to the benefits of this Indenture and shall be the valid and binding
obligations of the Guarantors, enforceable against the Guarantors in accordance
with their terms, subject to customary qualifications including exceptions for
bankruptcy, fraudulent transfer and equitable principles.


 


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


 


46
















 


(i)           
Private Placement Legend.


 


(A)         
Except as permitted by subparagraph (B) below, each Global Note and each
Definitive Note (and all Notes issued in exchange therefor or substitution
thereof) shall bear the legend in substantially the following form:


 


THIS SECURITY HAS NOT BEEN REGISTERED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), OR ANY STATE
SECURITIES LAWS.  NEITHER THIS SECURITY NOR ANY INTEREST OR PARTICIPATION
HEREIN MAY BE REOFFERED, SOLD, ASSIGNED, TRANSFERRED, PLEDGED, ENCUMBERED OR
OTHERWISE DISPOSED OF IN THE ABSENCE OF SUCH REGISTRATION OR UNLESS SUCH
TRANSACTION IS EXEMPT FROM, OR NOT SUBJECT TO, REGISTRATION.  THE HOLDER
OF THIS SECURITY BY ITS ACCEPTANCE HEREOF (1) REPRESENTS THAT (X) IT IS A
“QUALIFIED INSTITUTIONAL BUYER” (AS DEFINED IN RULE 144A UNDER THE SECURITIES
ACT), (Y) IT IS A NON-U.S. PURCHASER AND IS ACQUIRING THIS SECURITY IN AN
OFFSHORE TRANSACTION WITHIN THE MEANING OF REGULATION S UNDER THE SECURITIES
ACT, OR (Z) IT IS AN INSTITUTIONAL “ACCREDITED INVESTOR” WITHIN THE MEANING OF
SUBPARAGRAPH (a)(1), (2), (3) OR (7) OF RULE 501 UNDER THE SECURITIES
ACT, AND (2) AGREES TO OFFER, SELL OR OTHERWISE TRANSFER SUCH SECURITY,
PRIOR TO THE DATE THAT IS TWO YEARS (OR SUCH OTHER PERIOD THAT MAY HEREAFTER BE
PROVIDED UNDER RULE 144(k) UNDER THE SECURITIES ACT AS PERMITTING RESALES
OF RESTRICTED SECURITIES BY NON-AFFILIATES WITHOUT RESTRICTION) AFTER THE LATER
OF THE ORIGINAL ISSUE DATE HEREOF AND THE LAST DATE ON WHICH THE ISSUER OR ANY
AFFILIATE OF THE ISSUER WAS THE OWNER OF THIS SECURITY (OR ANY PREDECESSOR OF
SUCH SECURITY), ONLY (A) TO THE ISSUER OR ANY SUBSIDIARIES OF THE ISSUER, (B)
PURSUANT TO A REGISTRATION STATEMENT THAT HAS BEEN DECLARED EFFECTIVE UNDER THE
SECURITIES ACT, (C) FOR SO LONG AS THIS SECURITY IS ELIGIBLE FOR RESALE
PURSUANT TO RULE 144A UNDER THE SECURITIES ACT, TO A PERSON IT REASONABLY
BELIEVES IS A “QUALIFIED INSTITUTIONAL BUYER” AS DEFINED IN RULE 144A UNDER THE
SECURITIES ACT THAT PURCHASES FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF A
QUALIFIED INSTITUTIONAL BUYER TO WHOM NOTICE IS GIVEN THAT THE TRANSFER IS
BEING MADE IN RELIANCE ON RULE 144A UNDER THE SECURITIES ACT, (D) PURSUANT TO
OFFERS AND SALES TO NON-U.S. PERSONS THAT OCCUR OUTSIDE THE UNITED STATES
WITHIN THE MEANING OF REGULATION S UNDER THE SECURITIES ACT, (E) TO AN INSTITUTIONAL
“ACCREDITED INVESTOR” WITHIN THE MEANING OF SUBPARAGRAPH (a) (1), (2),
(3) OR (7) OF RULE 501 UNDER THE SECURITIES ACT THAT IS ACQUIRING
THIS SECURITY FOR ITS OWN ACCOUNT, OR FOR THE ACCOUNT OF SUCH AN INSTITUTIONAL
“ACCREDITED INVESTOR,” FOR INVESTMENT PURPOSES AND NOT WITH A VIEW TO, OR FOR
OFFER OR SALE IN CONNECTION WITH, ANY DISTRIBUTION IN VIOLATION OF THE


 


47
















 


SECURITIES ACT OR (F) PURSUANT TO ANOTHER AVAILABLE
EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT, SUBJECT TO
THE ISSUER’S AND THE TRUSTEE’S RIGHT PRIOR TO ANY SUCH OFFER, SALE OR TRANSFER
PURSUANT TO CLAUSE (D), (E) OR (F) TO REQUIRE THE DELIVERY OF AN OPINION OF
COUNSEL, CERTIFICATIONS AND/OR OTHER INFORMATION SATISFACTORY TO EACH OF THEM,
AND IN EACH OF THE FOREGOING CASES, A CERTIFICATE OF TRANSFER IN THE FORM
APPEARING ON THIS SECURITY IS COMPLETED AND DELIVERED BY THE TRANSFEROR TO THE
TRUSTEE AND IN EACH CASE IN ACCORDANCE WITH APPLICABLE SECURITIES LAWS OF ANY
U.S. STATE OR ANY OTHER APPLICABLE JURISDICTION.


 


(B)          
Notwithstanding the foregoing, any Global Note or Definitive Note issued
pursuant to subparagraphs (b)(4), (c)(2), (c)(3), (d)(2), (d)(3), (e)(2),
(e)(3) or (f) to this Section 2.6 (and all Notes issued in exchange
therefor or substitution thereof) shall not bear the Private Placement Legend.


 


(ii)          
Global Note Legend.  To the
extent required by the Depositary, each Global Note shall bear legends in
substantially the following forms:


 


“THIS GLOBAL NOTE IS HELD BY THE DEPOSITARY (AS
DEFINED IN THE INDENTURE GOVERNING THIS NOTE) OR ITS NOMINEE IN CUSTODY FOR THE
BENEFIT OF THE BENEFICIAL OWNERS HEREOF, AND IS NOT TRANSFERABLE TO ANY PERSON
UNDER ANY CIRCUMSTANCES EXCEPT THAT (I) THE TRUSTEE MAY MAKE SUCH NOTATIONS
HEREON AS MAY BE REQUIRED PURSUANT TO SECTION 2.6 OF THE INDENTURE, (II) THIS
GLOBAL NOTE MAY BE EXCHANGED IN WHOLE BUT NOT IN PART PURSUANT TO SECTION
2.6(a) OF THE INDENTURE, (III) THIS GLOBAL NOTE MAY BE DELIVERED TO THE
TRUSTEE FOR CANCELLATION PURSUANT TO SECTION 2.11 OF THE INDENTURE AND (IV)
THIS GLOBAL NOTE MAY BE TRANSFERRED TO A SUCCESSOR DEPOSITARY WITH THE PRIOR
WRITTEN CONSENT OF THE ISSUER.”


 


“UNLESS AND UNTIL IT IS EXCHANGED IN WHOLE OR IN PART
FOR NOTES IN DEFINITIVE FORM, THIS NOTE MAY NOT BE TRANSFERRED EXCEPT AS A
WHOLE BY THE DEPOSITARY TO A NOMINEE OF THE DEPOSITARY OR BY A NOMINEE OF THE
DEPOSITARY TO THE DEPOSITARY OR ANOTHER NOMINEE OF THE DEPOSITARY OR BY THE
DEPOSITARY OR ANY SUCH NOMINEE TO A SUCCESSOR DEPOSITARY OR A NOMINEE OF SUCH
SUCCESSOR DEPOSITARY.  UNLESS THIS CERTIFICATE IS PRESENTED BY AN
AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY (55 WATER STREET, NEW
YORK, NEW YORK) (“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 MAY BE REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR SUCH OTHER
ENTITY AS MAY BE REQUESTED BY AN


 


48
















 


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.”


 


(i)           
Reg S Temporary Global Note Legend. 
To the extent required by the Depositary, each Reg S Temporary Global Note
shall bear a legend in substantially the following form:


 


“THE RIGHTS ATTACHING TO THIS REGULATION S TEMPORARY
GLOBAL NOTE, AND THE CONDITIONS AND PROCEDURES GOVERNING ITS EXCHANGE FOR
DEFINITIVE NOTES, ARE AS SPECIFIED IN THE INDENTURE (AS DEFINED HEREIN). 
NEITHER THE HOLDER NOR THE BENEFICIAL OWNERS OF THIS REGULATION S TEMPORARY
GLOBAL NOTE SHALL BE ENTITLED TO RECEIVE CASH PAYMENTS OF INTEREST DURING THE
PERIOD WHICH SUCH HOLDER HOLDS THIS NOTE.  NOTHING IN THIS LEGEND SHALL BE
DEEMED TO PREVENT INTEREST FROM ACCRUING ON THIS NOTE.”


 


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


 


(i)           
General Provisions Relating to Transfers and
Exchanges.


 


(i)           
To permit registrations of transfers and exchanges, the Issuer shall execute
and the Trustee shall authenticate Global Notes and Definitive Notes upon
receipt of an Authentication Order.


 


(ii)          
No service charge shall be made to a holder of a beneficial interest in a
Global Note or to a Holder of a Definitive Note for any registration of
transfer or exchange, but the 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 exchange or transfer pursuant to Section 2.10, 3.6, 4.13,
4.14 or 4.22 hereof).


 


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


 


(iv)         
All Global Notes and Definitive Notes issued upon any registration of transfer
or exchange of Global Notes or Definitive Notes shall be the valid obligations
of the Issuer, evidencing the same Indebtedness, and entitled to the same
benefits under this Indenture, as the Global Notes or Definitive Notes
surrendered upon such registration of transfer or exchange.


 


(v)          
The Issuer shall not be required (A) to issue, to register the transfer of or
to exchange any Notes during a period beginning at the opening of business 15
days before the day of any selection of Notes for redemption under
Section 3.2 hereof and ending at the close of business on the day of
selection, (B) to register the transfer of or to exchange any Note so selected
for redemption in whole or in part, except the unredeemed portion of any Note
being redeemed in part or (C) to register the transfer of or to exchange a Note
between an Interest Record Date and the next succeeding Interest Payment Date.


 


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


 


(vii)        
The Trustee shall authenticate Global Notes and Definitive Notes in accordance
with the provisions of Section 2.2 hereof.


 


(viii)       
All certifications, certificates and Opinions of Counsel required to be
submitted to the Registrar pursuant to this Section 2.6 to effect a
registration of transfer or exchange may be submitted by facsimile.


 


Notwithstanding anything
herein to the contrary, as to any certifications and certificates delivered to
the Registrar pursuant to this Section 2.6, the Registrar’s duties shall
be limited to confirming that any such certifications and certificates
delivered to it are in the form of Exhibits A, B, C, D and E attached
hereto.  The Registrar shall not be responsible for confirming the truth
or accuracy of representations made in any such certifications or certificates.


 


Section 2.7                                     
REPLACEMENT NOTES


 


If any mutilated Note is
surrendered to the Trustee or the Issuer or if the Trustee or the Issuer
receives evidence (which evidence may be from the Trustee) to their
satisfaction of the destruction, loss or theft of any Note, the Issuer shall
issue and the Trustee, upon receipt of an Authentication Order, shall
authenticate a replacement Note if the Trustee’s requirements are met.  If
required by the Trustee or the Issuer, an affidavit of lost certificate and/or
an indemnity bond or other indemnity must be supplied by the


 


50
















 


requesting Holder that is sufficient in the judgment
of the Trustee and the Issuer to protect the Issuer, the Trustee, any Agent and
any authenticating agent from any loss that any of them may suffer if a Note is
replaced.  The Issuer may charge for its expenses in replacing a Note,
including reasonable fees and expenses of their counsel and of the Trustee and
its counsel.  Every replacement Note is an additional obligation of the
Issuer and shall be entitled to all of the benefits of this Indenture equally
and proportionately with all other Notes duly issued hereunder.  The
provisions of this Section 2.7 are exclusive and shall preclude (to the extent
lawful) all other rights and remedies with respect to the replacement of
mutilated, lost, destroyed or wrongfully taken Notes.


 


Section 2.8                                     
OUTSTANDING NOTES


 


The Notes outstanding at
any time are all the Notes authenticated by the Trustee (including any Note
represented by a Global Note) except for those cancelled by it or at the
Issuer’s direction, those delivered to it for cancellation, those reductions in
the interest in a Global Note effected by the Trustee in accordance with the
provisions hereof, and those described in this Section 2.8 as not
outstanding.  Except as set forth in Section 2.9 hereof, a Note does
not cease to be outstanding because the Issuer or an Affiliate of the Issuer
holds the Note.  If a Note is replaced pursuant to Section 2.7
hereof, such Note, together with the Guarantee of that particular Note endorsed
thereon, ceases to be outstanding unless the Trustee receives proof
satisfactory to it that the replaced Note is held by a bona fide purchaser.  If the
principal amount of any Note is considered paid under Section 4.1 hereof,
it ceases to be outstanding and Interest on it ceases to accrue.  If the
Paying Agent (other than the Issuer, a subsidiary or an Affiliate of any
thereof) holds, on a redemption date or the maturity date, money sufficient to
pay Notes payable on that date, then on and after that date such Notes shall be
deemed to be no longer outstanding and shall cease to accrue Interest.


 


Section 2.9                                     
TREASURY NOTES


 


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


 


Section 2.10                               
TEMPORARY NOTES


 


Until certificates
representing Notes are ready for delivery, the Issuer may prepare and the
Trustee, upon receipt of an Authentication Order, shall authenticate temporary
Notes.  Temporary Notes shall be substantially in the form of Definitive
Notes but may have variations that the Issuer considers appropriate for
temporary Notes and as shall be reasonably acceptable to the Trustee. 
Without unreasonable delay, the Issuer shall prepare and the Trustee shall
authenticate Definitive Notes in exchange for


 


51
















 


temporary Notes.  Until such exchange, holders of
temporary Notes shall be entitled to all of the benefits of this Indenture.


 


Section 2.11                               
CANCELLATION


 


The Issuer at any time
may deliver Notes to the Trustee for cancellation.  The Registrar and
Paying Agent shall forward to the Trustee any Notes surrendered to them for
registration of transfer, exchange or payment.  The Trustee, or at the
direction of the Trustee, the Registrar or the Paying Agent (other than the
Issuer, a subsidiary or an Affiliate thereof), and no one else, shall cancel
all Notes surrendered for registration of transfer, exchange, payment,
replacement or cancellation and shall dispose of such cancelled Notes in
accordance with its customary procedures (subject to the record retention
requirement of the Exchange Act) or shall return all cancelled Notes to the
Issuer upon its request.  Subject to Section 2.7, the Issuer may not
issue new Notes to replace Notes that it has paid or that have been delivered
to the Trustee for cancellation.


 


Section 2.12                               
DEFAULTED INTEREST


 


Any Interest on any Note
which is payable, but is not punctually paid or duly provided for, on any
Interest Payment Date plus, to the extent lawful, any interest payable on the
defaulted Interest at the rate and in the manner provided in Section 4.1
hereof and in the Note (herein called “Defaulted
Interest”) shall forthwith cease to be payable to the registered
Holder on the relevant Interest Record Date, and such Defaulted Interest may be
paid by the Issuer, at their election in each case, as provided in clause (1)
or (2) below:


 


(1)          
The Issuer may elect to make payment of any Defaulted Interest to the Persons
in whose names the Notes are registered at the close of business on a Special
Record Date for the payment of such Defaulted Interest, which shall be fixed in
the following manner.  The Issuer shall notify the Trustee and the Paying
Agent in writing of the amount of Defaulted Interest proposed to be paid on
each Note and the date of the proposed payment, and at the same time the Issuer
shall deposit with the Paying Agent an amount of cash equal to the aggregate
amount proposed to be paid in respect of such Defaulted Interest or shall make
arrangements reasonably satisfactory to the Paying Agent for such deposit prior
to the date of the proposed payment, such cash when deposited to be held in trust
for the benefit of the Persons entitled to such Defaulted Interest as provided
in this clause (1).  Thereupon the Paying Agent shall fix a “Special
Record Date” for the payment of such Defaulted Interest which shall be not more
than 15 days and not less than 10 days prior to the date of the proposed
payment and not less than 10 days after the receipt by the Paying Agent of the
notice of the proposed payment.  The Paying Agent shall promptly notify
the Issuer and the Trustee of such Special Record Date and, in the name and at
the expense of the Issuer, shall cause notice of the proposed payment of such
Defaulted Interest and the Special Record Date therefor to be mailed,
first-class postage prepaid, to each Holder at its address as it appears in the
Note register maintained by the Registrar not less than 10 days prior to such
Special Record Date.  Notice of the proposed payment of such Defaulted
Interest and the Special Record Date therefor having been mailed as aforesaid,
such Defaulted Interest shall be paid to the


 


52
















 


persons in whose names the Notes (or their respective
predecessor Notes) are registered on such Special Record Date and shall no
longer be payable pursuant to the following clause (2).


 


(2)          
The Issuer may make payment of any Defaulted Interest in any other lawful
manner not inconsistent with the requirements of any securities exchange on
which the Notes may be listed, and upon such notice as may be required by such
exchange, if, after notice given by the Issuer to the Trustee and the Paying
Agent of the proposed payment pursuant to this clause, such manner shall be
deemed practicable by the Trustee and the Paying Agent.


 


Subject to the foregoing
provisions of this Section 2.12, each Note delivered under this Indenture
upon registration of transfer of or in exchange for or in lieu of any other
Note shall carry the rights to Interest accrued and unpaid, and to accrue,
which were carried by such other Note.


 


Section 2.13                               
CUSIP NUMBERS


 


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


 


Section 2.14                               
ISSUANCE OF
ADDITIONAL NOTES


 


The Issuer may, subject
to Section 4.7 hereof and applicable law, issue Additional Notes in an
unlimited amount under this Indenture.  The Notes issued on the Issue Date
and any Additional Notes subsequently issued shall be treated as a single class
for all purposes under this Indenture.


 


ARTICLE III

REDEMPTION


 


Section 3.1                                     
NOTICES TO TRUSTEE


 


If the Issuer elects to
redeem Notes pursuant to the optional redemption provisions of Section 3.7
hereof, it shall furnish to the Trustee, at least 30 days (unless a shorter
period is acceptable to the Trustee) but not more than 60 days (unless a longer
period is acceptable to the Trustee) before a Redemption Date, an Officers’
Certificate stating that such redemption is being made pursuant to
Section 3.7 and setting forth (i) the Redemption Date, (ii) the
principal amount of Notes to be redeemed and (iii) the redemption price.


 


53
















 


Section 3.2                                     
SELECTION OF NOTES TO
BE REDEEMED


 


If less than all of the
Notes are to be redeemed at any time, the Trustee shall select the Notes or
portions thereof to be redeemed among the Holders of the Notes in compliance
with the requirements of the principal national securities exchange, if any, on
which the Notes are listed or, if the Notes are not so listed, on a pro rata basis, by lot or in accordance
with any other method the Trustee considers fair and appropriate, provided that Notes in denominations of
$1,000 or less may not be redeemed in part.  In the event of partial
redemption by lot, the particular Notes to be redeemed shall be selected,
unless otherwise provided herein, not less than 30 nor more than 60 days prior
to the Redemption Date by the Trustee from the outstanding Notes not previously
called for redemption.


 


The Trustee shall
promptly notify the Issuer in writing of the Notes selected for redemption and,
in the case of any Note selected for partial redemption, the principal amount
thereof to be redeemed.  Notes and portions of Notes in denominations of
larger than $1,000 selected shall be in amounts of $1,000 or integral multiples
of $1,000; except that if all of the Notes of a Holder are to be redeemed, the
entire outstanding amount of Notes held by such Holder, even if not an integral
multiple of $1,000, shall be redeemed.  Except as provided in the
preceding sentence, provisions of this Indenture that apply to Notes called for
redemption also apply to portions of Notes called for redemption.


 


Section 3.3                                     
NOTICE OF REDEMPTION


 


At least 30 days but not
more than 60 days before a Redemption Date, the Trustee shall mail or cause to
be mailed, by first class mail, a notice of redemption to each Holder whose
Notes are to be redeemed at its registered address.


 


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


 


(a)          
the Redemption Date;


 


(b)          
the redemption price;


 


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


 


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


 


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


 


(f)           
that, unless the Issuer defaults in making such redemption payment, Interest
(and Liquidated Damages, if any) on Notes or portions thereof called for
redemption ceases to accrue on and after the Redemption Date;


 


54
















 


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


 


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


 


At the Issuer’s request,
the Trustee shall give the notice of redemption in the Issuer’s name and at the
Issuer’s expense; provided, however,
that the Issuer shall have delivered to the Trustee, at least 45 days prior to
the Redemption Date (unless a shorter period shall be acceptable to the
Trustee), an Officers’ Certificate requesting that the Trustee give such notice
and setting forth the information to be stated in such notice as provided in
the preceding paragraph.


 


Section 3.4                                     
EFFECT OF NOTICE OF
REDEMPTION


 


Once notice of redemption
is mailed in accordance with Section 3.3 hereof, Notes called for redemption
become irrevocably due and payable on the Redemption Date at the redemption
price.  A notice of redemption may not be conditional.


 


Section 3.5                                     
DEPOSIT OF REDEMPTION
PRICE


 


On the Business Day
immediately prior to the Redemption Date, the Issuer shall deposit with the
Trustee or with the Paying Agent immediately available funds sufficient to pay
the redemption price of and accrued and unpaid Interest (and Liquidated
Damages, if any) on all Notes to be redeemed on that date.  The Trustee or
the Paying Agent shall promptly return to the Issuer any money deposited with
the Trustee or the Paying Agent by the Issuer in excess of the amounts
necessary to pay the redemption price of, and accrued and unpaid Interest (and
Liquidated Damages, if any) on, all Notes to be redeemed.


 


If the Issuer complies
with the provisions of the preceding paragraph, on and after the Redemption
Date, Interest (and Liquidated Damages, if any) shall cease to accrue on the
Notes or the portions of Notes called for redemption.  If a Note is
redeemed on or after an Interest Record Date but on or prior to the related
Interest Payment Date, then any accrued and unpaid Interest (and Liquidated
Damages, if any) shall be paid to the Person in whose name such Note was
registered at the close of business on such Interest Record Date.  If any
Note called for redemption shall not be so paid upon surrender for redemption
because of the failure of the Issuer to comply with the preceding paragraph,
Interest shall be paid on the unpaid principal, from the redemption date until
such principal is paid, and to the extent lawful on any Interest not paid on
such unpaid principal, in each case at the rate provided in the Notes and in
Section 4.1 hereof.


 


If the Redemption Date
hereunder is on or after an Interest Record Date on which the Holders of record
have a right to receive the corresponding Interest due and Liquidated Damages,
if any, and on or before the associated Interest Payment Date, any accrued and
unpaid Interest (and Liquidated Damages, if any) due on such Interest


 


55
















 


Payment Date shall be paid to the Person in whose name
a Note is registered at the close of business on such Interest Record Date.


 


Section 3.6                                     
NOTES REDEEMED IN
PART


 


Upon surrender of a Note
that is redeemed in part, the Issuer shall issue and, upon receipt of an
Authentication Order, the Trustee shall authenticate for the Holder at the
expense of the Issuer a new Note equal in principal amount to the unredeemed
portion of the Note surrendered.


 


Section 3.7                                     
OPTIONAL REDEMPTION


 


(a) The Issuer will
not have the right to redeem any Notes prior to July 15, 2008 (other than with
Net Cash Proceeds of a Qualified Equity Offering, as described in
Section 3.7(b)).


 


At any time on or after
July 15, 2008, the Issuer may redeem the Notes for cash at the Issuer’s option,
in whole or in part, at any time or from time to time, upon not less than
30 days nor more than 60 days notice to each Holder of Notes, at the
following redemption prices (expressed as percentages of the principal amount)
if redeemed during the 12-month period commencing July 15 of the years
indicated below, in each case together with accrued and unpaid Interest (and
Liquidated Damages, if any) to the date of redemption of the Notes (the “Redemption Date”):


 


	
  Year

  	
   

  	
  Percentage

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  2008

  	
   

  	
  105.438

  	
  %

  
	
  2009

  	
   

  	
  102.719

  	
  %

  
	
  2010 and thereafter

  	
   

  	
  100.000

  	
  %

  



 


(b) At any time on
or prior to July 15, 2007, upon a Qualified Equity Offering, up to 35% of the
aggregate principal amount of the Notes issued pursuant to this Indenture may
be redeemed at the Issuer’s option within 90 days of such Qualified Equity
Offering, with cash received by the Issuer from the Net Cash Proceeds of such
Qualified Equity Offering, at a redemption price equal to 110.875% of the
principal amount thereof, together with accrued and unpaid Interest (and
Liquidated Damages, if any) to the Redemption Date; provided, however, that immediately following such
redemption not less than 65% of the aggregate principal amount of the Notes
originally issued pursuant to this Indenture on the Issue Date remain
outstanding.


 


(c) Any redemption
pursuant to this Section 3.7 shall be made pursuant to the provisions of
Sections 3.1 through 3.6.


 


56
















 


Section 3.8                                     
NO MANDATORY
REDEMPTION


 


The Issuer shall not be
required to make mandatory redemption payments with respect to the Notes
(except for any offer to repurchase Notes that the Issuer is required to make
in accordance with the provisions of Sections 4.13, 4.14 and 4.22
below).  The Notes shall not have the benefit of any sinking fund.


 


ARTICLE IV

COVENANTS


 


Section 4.1                                     
PAYMENT OF NOTES


 


The Issuer shall pay or
cause to be paid the principal of, premium, if any, and Interest on the Notes
on the dates and in the manner provided in the Notes.  Principal, premium,
if any, and Interest shall be considered paid on the date due if the Paying
Agent, if other than the Issuer or a subsidiary thereof, holds as of 12:00 noon
Eastern time on the due date money deposited by the Issuer in immediately
available funds and designated for and sufficient to pay all principal,
premium, if any, and Interest (and Liquidated Damages, if any) then due and if
the Paying Agent is not prohibited from paying such money to the Holders by
this Indenture.  The Issuer shall pay all Liquidated Damages, if any, in
the same manner on the dates and in the amounts set forth in the Registration
Rights Agreement.


 


The Issuer shall pay
interest (including Accrued Bankruptcy Interest in any proceeding under any
Bankruptcy Law) on overdue principal at the then applicable interest rate on
the Notes to the extent lawful; it shall pay interest (including Accrued
Bankruptcy Interest in any proceeding under any Bankruptcy Law) on overdue
installments of Interest (and Liquidated Damages, if any, without regard to any
applicable grace period) at the same rate to the extent lawful.


 


Section 4.2                                     
MAINTENANCE OF OFFICE
OR AGENCY


 


The Issuer shall maintain
in the Borough of Manhattan, The City of New York, an office or agency (which
may be an office of the Trustee or an affiliate of the Trustee, Registrar or
co-registrar) where Notes may be surrendered for registration of transfer or
for exchange and where notices and demands to or upon the Issuer in respect of
the Notes and this Indenture may be served.  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 Corporate Trust Office.


 


The Issuer may also from
time to time designate one or more other offices or agencies where the Notes
may be presented or surrendered for any or all such purposes and may from time
to time rescind such additional designations; provided,
that no such designation or rescission shall in any manner relieve the Issuer
of the Issuer’s obligation to maintain an office or agency in the Borough of
Manhattan, The City of New York.


 


57
















 


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
designates the Corporate Trust Office of the Trustee as one such office or
agency of the Issuer in accordance with Section 2.3 hereof.


 


Section 4.3                                     
COMMISSION REPORTS
AND REPORTS TO HOLDERS


 


Whether or not the Issuer
is subject to the reporting requirements of Section 13 or 15(d) of the
Exchange Act, so long as any Notes are outstanding, the Issuer shall deliver to
the Trustee and to each Holder and to prospective purchasers of Notes
identified to the Issuer by the Initial Purchasers, within 5 days after
the Issuer is or would have been (if it were subject to such reporting
obligations) required to file such with the Commission, (i) annual and
quarterly financial statements substantially equivalent to financial statements
that would have been required to be contained in a filing with the Commission
on Forms 10-K and 10-Q if the Issuer were required to file such Forms,
including in each case, together with a Management’s Discussion and Analysis of
Financial Condition and Results of Operations which would be so required, and
including, with respect to annual information only, a report thereon by the
Issuer’s certified independent public accountants as would be so required, and
(ii) all information that would be required to be contained in a filing
with the Commission on Form 8-K if the Issuer were required to file such
report.  Within a reasonable period of time after delivering such annual
and quarterly reports, the Issuer will use its reasonable best efforts to hold
an earnings conference call to discuss the financial information contained
therein, unless the Issuer would be prohibited by law from doing so.  From
and after the consummation of the Exchange Offer, unless the Commission will
not accept such reports, the Issuer will file with the Commission the annual,
quarterly and other reports which the Issuer is required to file with the
Commission.


 


Section 4.4                                     
COMPLIANCE
CERTIFICATE


 


(a)          
The Issuer shall deliver to the
Trustee, within 120 days after the end of each fiscal year, an Officers’
Certificate stating that a review of the activities of the Issuer and the Subsidiaries during the
preceding fiscal year has been made under the supervision of the signing
Officers with a view to determining whether the Issuer and the Subsidiaries have kept,
observed, performed and fulfilled their obligations under this Indenture, and
further stating, as to each such Officer signing such certificate, that to his
or her knowledge the Issuer and the Subsidiaries are not in default in the performance
or observance of any of the terms, provisions and conditions of this Indenture
(or, if a Default or Event of Default shall have occurred and be continuing,
describing all such Defaults or Events of Default of which he or she may have
knowledge and what action the Issuer is taking or proposes to take with respect
thereto) and that to his or her knowledge no event has occurred and remains in
existence by reason of which payments on account of the principal of or
Interest, if any, on the Notes is prohibited or if such event has occurred, a
description of the event and what action the Issuer is taking or proposes to
take with respect thereto.  The Issuer shall provide the Trustee with timely


 


58
















 


written notice of any change in the Issuer’s fiscal
year end, which is currently December 31.


 


(b)          
The Issuer shall, so long as any of
the Notes are outstanding, deliver to the Trustee, within five Business Days of
any Officer becoming aware of any Default or Event of Default, an Officers’
Certificate specifying such Default or Event of Default and what action the
Issuer is taking or propose to take with respect thereto.


 


Section 4.5                                     
TAXES


 


The Issuer shall pay, and
shall cause each of the Subsidiaries to pay, prior to delinquency, all material
taxes, assessments, and governmental levies except such as are contested in
good faith and by appropriate proceedings or where the failure to effect such
payment would not have a material adverse effect on the ability of the Issuer
and the Guarantors to satisfy their obligations under the Notes, the
Guarantees, this Indenture, the Registration Rights Agreement, the
Intercreditor Agreement and the Collateral Agreement.


 


Section 4.6                                     
STAY, EXTENSION AND
USURY LAWS


 


The Issuer covenants (to
the extent that it may lawfully do so) 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, extension or usury law wherever enacted, now or at any time
hereafter in force, that may affect the covenants or the performance of this
Indenture; and the Issuer (to the extent that it may lawfully do so) hereby
expressly waives all benefit or advantage of any such law, and covenants that
it shall not, by resort to any such law, 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 has been enacted.


 


	
  Section 4.7

  	
  LIMITATION ON INCURRENCE
  OF ADDITIONAL INDEBTEDNESS AND DISQUALIFIED CAPITAL STOCK

  



 


(a)          
Except as set forth in this Section 4.7, the Issuer shall not and the
Guarantors shall not, and neither the Issuer nor the Guarantors shall permit
any of the Subsidiaries to, directly or indirectly, create, issue, assume,
guarantee, incur, become directly or indirectly liable with respect to
(including as a result of an Acquisition), or otherwise become responsible for,
contingently or otherwise (individually and collectively, to “incur” or, as appropriate, an “incurrence”), any Indebtedness (including
Disqualified Capital Stock and Acquired Indebtedness), other than Permitted
Indebtedness.


 


Notwithstanding the
foregoing, if:


 


(1)                                 
no Default or Event
of Default shall have occurred and be continuing at the time of, or would occur
after giving effect on a pro forma
basis to, such incurrence of such Indebtedness and


 


59
















 


(2)                                 
on the date of such
incurrence (the “Incurrence Date”),
the Issuer’s Consolidated Coverage Ratio for the Reference Period immediately
preceding the Incurrence Date, after giving effect on a pro forma basis to such incurrence of such
Indebtedness and, to the extent set forth in the definition of Consolidated
Coverage Ratio, the use of proceeds thereof, would be at least 2.0 to 1.0 (the
“Debt Incurrence Ratio”),


 


then the Issuer and the Subsidiaries may incur such
Indebtedness (including Disqualified Capital Stock and Acquired Indebtedness).


 


(b)          
The foregoing limitations of Section 4.7(a) will not prohibit the
incurrence by the Issuer or any Guarantor of Indebtedness pursuant to the
Credit Agreement in an aggregate amount incurred and outstanding at any time
pursuant to this Section 4.7(b) (plus any Refinancing Indebtedness
incurred to retire, defease, refinance, replace or refund such Indebtedness) of
up to the greater of (i) $15,000,000, minus the amount of any such
Indebtedness (1) retired with the Net Cash Proceeds from any Asset Sale or
Event of Loss applied to permanently reduce the outstanding amounts or the
commitments with respect to such Indebtedness pursuant to Section 4.13 or
(2) assumed by a transferee in an Asset Sale, and (ii) the sum of
(x) 85% of the net book value of accounts receivable of the Issuer and the
Subsidiaries, and (y) 65% of the net book value of inventory of the Issuer
and the Subsidiaries, in the case of each of clauses (ii)(x) and (y),
determined in accordance with GAAP, and including accounts receivable and
inventory acquired with the proceeds of the substantially concurrent incurrence
of Indebtedness under the Credit Agreement.


 


(c)          
Indebtedness (including Disqualified Capital Stock) of any Person which is
outstanding at the time such Person becomes one of the Subsidiaries (including
upon designation of any Person as a Subsidiary) or is merged with or into or
consolidated with the Issuer or one of its Subsidiaries shall be deemed to have
been incurred at the time such Person becomes or is designated one of the
Subsidiaries or is merged with or into or consolidated with the Issuer or one
of its Subsidiaries, as applicable.


 


(d)          
Notwithstanding any other provision of this Section 4.7, but only to avoid
duplication, a guarantee by the Issuer or a Guarantor of the Issuer’s
Indebtedness or of the Indebtedness of a Guarantor incurred in accordance with
the terms of this Indenture issued at the time such Indebtedness was incurred
or if later at the time the guarantor thereof became a Guarantor shall not
constitute a separate incurrence, or amount outstanding, of Indebtedness. 
Upon each incurrence of Indebtedness, (i) the Issuer may designate
pursuant to which provision of this Section 4.7 such Indebtedness is being
incurred (and the Issuer may later redesignate such Indebtedness),
(ii) the Issuer may subdivide an amount of Indebtedness and designate more
than one provision pursuant to which such amount of Indebtedness is being
incurred and (iii) such Indebtedness shall not be deemed to have been
incurred or outstanding under any other provision of this Section 4.7,
except that all Indebtedness initially outstanding under the Notes, the
Guarantees and this Indenture shall be deemed to have been incurred pursuant to
clause (a) of the definition of Permitted Indebtedness.


 


60
















 


Section 4.8                                     
LIMITATION ON LIENS
SECURING INDEBTEDNESS


 


The Issuer shall not and
the Guarantors shall not, and neither the Issuer nor the Guarantors shall
permit any of the Subsidiaries to, create, incur, assume or suffer to exist any
Lien of any kind, other than Permitted Liens, upon any of the Issuer’s or the
Guarantors’ or the Subsidiaries’ respective assets now owned or acquired on or
after the Issue Date or upon any income or profits therefrom securing any of
the Issuer’s Indebtedness or any Indebtedness of any Guarantor.


 


Section 4.9                                     
LIMITATION ON
RESTRICTED PAYMENTS


 


(a)  The Issuer
shall not and the Guarantors shall not, and neither the Issuer nor the
Guarantors shall permit any of the Subsidiaries to, directly or indirectly,
make any Restricted Payment if, after giving effect on a pro forma basis to such Restricted
Payment:


 


(1)                                 
a Default or an Event
of Default shall have occurred and be continuing,


 


(2)                                 
the Issuer is not
permitted to incur at least $1.00 of additional Indebtedness pursuant to the
Debt Incurrence Ratio in Section 4.7,


 


(3)                                 
the aggregate amount
of all Restricted Payments made by the Issuer and its Subsidiaries, including
after giving effect to such proposed Restricted Payment, on and after the Issue
Date, would exceed, without duplication, the sum of:


 


(A)                             
50% of the Issuer’s
aggregate Consolidated Net Income for the period (taken as one accounting
period), commencing on the first day of the first full fiscal quarter
commencing after the Issue Date occurs, to and including the last day of the
fiscal quarter ended immediately prior to the date of each such calculation for
which the Issuer’s consolidated financial statements are required to be
delivered to the Trustee or, if sooner, filed with the Commission (or, in the
event Consolidated Net Income for such period is a deficit, then minus 100% of
such deficit), plus


 


(B)                               
the aggregate Net
Cash Proceeds received by the Issuer from a Capital Contribution or from the
sale of the Issuer’s Qualified Capital Stock after the Issue Date (other than
(i) to one of the Subsidiaries, (ii) to the extent applied in
connection with a Qualified Exchange or, to avoid duplication, otherwise given
credit for in any provision of this or the following paragraph, (iii) used
as consideration to make a Permitted Investment or (iv) issued upon the
conversion or exchange of any Indebtedness of the Issuer or the Subsidiaries
convertible or exchangeable for Qualified Capital Stock as described in
paragraph (C) below), plus


 


61
















 


(C)                               
the amount by which
Indebtedness of the Issuer or the Subsidiaries is reduced on the Issuer’s
balance sheet upon the conversion or exchange (other than by one of the
Subsidiaries) subsequent to the Issue Date of any Indebtedness of the Issuer or
the Subsidiaries convertible or exchangeable for the Issuer’s Qualified Capital
Stock (less the amount of any cash, or the fair market value of any other
property, distributed by the Issuer or any of the Subsidiaries upon such
conversion or exchange), plus


 


(D)                              
except in each case,
in order to avoid duplication, to the extent any such payment or proceeds have
been included in the calculation of Consolidated Net Income, an amount equal to
the net reduction in Investments (other than returns of or from Permitted
Investments) in any Person (including an Unrestricted Subsidiary) resulting
from cash distributions on or cash repayments of any Investments, including
payments of interest on Indebtedness, dividends, repayments of loans or
advances, or other distributions or other transfers of assets, in each case to
the Issuer or any Subsidiary or from the Net Cash Proceeds from the sale of any
such Investment or from redesignations of Unrestricted Subsidiaries as Subsidiaries
(valued in each case as provided in the definition of “Investments”), not to
exceed, in each case, the amount of Investments previously made by the Issuer
or any Subsidiary in such Person, including, if applicable, such Unrestricted
Subsidiary, less the cost of disposition.


 


(b)                                
Section 4.9(a),
however, shall not prohibit:


 


(1)                                 
so long as clause (1)
of Section 4.9(a) is satisfied, (i) the payment of cash
dividends to any direct holding company of the Issuer to the extent applied by
such holding company to repurchase, redeem or otherwise retire or acquire
Equity Interests of such holding company from the Issuer’s employees or
directors (or their heirs, estates, authorized representatives or permitted
transferees) or employees or directors (or their heirs, estates, authorized
representatives or permitted transferees) of such holding company or the
Subsidiaries, in each case, pursuant to the terms of any stockholders
agreement, interest holders agreement, employment agreement, severance
agreement, employee stock option agreement or similar agreement in accordance
with the provisions of any such arrangement as in effect on the Issue Date or
(ii) repurchases, redemptions or other retirements or acquisitions of
Capital Stock from the Issuer’s employees or directors (or their heirs,
estates, authorized representatives or permitted transferees) or employees or
directors (or their heirs, estates, authorized representatives or permitted
transferees) of the Subsidiaries upon death, disability or termination of
employment, in the case of clause (i) and (ii), in an aggregate amount
pursuant to this paragraph (1) to all such employees or directors (or
their heirs, estates, authorized representatives or


 


62
















 


permitted transferees) not to exceed $500,000 per
fiscal year on and after the Issue Date, provided
that any of such permitted amount not used in a fiscal year may be carried
forward to succeeding fiscal years until used, so long as for any particular
fiscal year, the aggregate of such unused amounts carried forward, together
with the amount available for such fiscal year, shall not exceed $1,000,000 in
the aggregate,


 


(2)                                 
so long as
clause (1) of Section 4.9(a) is satisfied, payments of
Management Fees,


 


(3)                                 
any dividend,
distribution or other payments by any of the Subsidiaries on its Equity
Interests that is paid pro rata to all holders of such Equity Interests,


 


(4)                                 
a Qualified Exchange,


 


(5)                                 
the payment of any
dividend on Qualified Capital Stock within 60 days after the date of its
declaration if such dividend could have been made on the date of such
declaration in compliance with the foregoing provisions,


 


(6)                                 
the payment of
reasonable and customary directors fees payable to, and indemnity provided on
behalf of, the Issuer’s Board of Directors and the Boards of Directors of the Subsidiaries,
indemnity provided on behalf of officers and employees of the Issuer and the
Subsidiaries, and customary reimbursement of travel and similar expenses
incurred in the ordinary course of business, and consulting or similar fees to
the Issuer’s Board of Directors, officers or employees pursuant to, and in
accordance with, agreements in effect on the Issue Date (without giving effect
to any amendment or supplement thereto or modification thereof),


 


(7)                                 
dividends to any
direct holding company of the Issuer to be used by such holding company solely
to pay its franchise taxes and reasonable directors’ fees and other fees and
expenses owing by it in the ordinary course of business in an aggregate amount
not to exceed $250,000 in any fiscal year, to the extent actually used by such
holding company to pay such taxes, fees and expenses,


 


(8)                                 
if a Change of
Control has occurred and the Issuer shall have consummated the Change of
Control Offer and purchased on the Change of Control Purchase Date all Notes
tendered in response to the Change of Control Offer pursuant to
Section 4.14, any purchase or redemption (within 60 days after the
Change of Control Purchase Date) of Subordinated Indebtedness required pursuant
to the terms thereof as a result of such Change of Control at a purchase or


 


63
















 


redemption price not to exceed the outstanding
principal amount thereof, plus accrued and unpaid interest thereon, if any; provided, however, that (x) at the
time of such purchase or redemption, no Default or Event of Default shall have
occurred and be continuing (or would result therefrom), (y) the Issuer
would be able to incur at least $1.00 of additional Indebtedness pursuant to
the Debt Incurrence Ratio set forth in Section 4.7 after giving pro forma effect to such Restricted
Payment and (z) such purchase or redemption is not made, directly or
indirectly, from the proceeds of (or made in anticipation of) any issuance of
Indebtedness by the Issuer or any of the Subsidiaries, or


 


(9)                                 
so long as
clause (1) of Section 4.9(a) is satisfied, Restricted Payments
not otherwise permitted pursuant to this covenant in an aggregate amount
pursuant to this clause (i) not to exceed $1,000,000 on and after the
Issue Date.


 


(c)          
The amounts expended pursuant to clauses (1), (3), (5), (8) and (9) (but
not pursuant to clauses (2), (4), (6) and (7)) of Section 4.9(b),
however, shall be counted as Restricted Payments made for purposes of the
calculation of the aggregate amount of Restricted Payments available to be made
referred to in clause (3) of Section 4.9(a).


 


(d)          
For purposes of this Section 4.9, the amount of any Restricted Payment
made or returned, if other than in cash, shall be the fair market value
thereof, as determined in the reasonable good faith judgment of the Issuer’s
Board of Directors, unless stated otherwise, at the time made or returned, as
applicable.  For purposes of determining compliance with this
Section 4.9, in the event that a Restricted Payment meets the criteria of
more than one of the exceptions described in clauses (1) through (9) of
Section 4.9(b) or is entitled to be made pursuant to Section 4.9(a),
the Issuer shall be permitted, in its sole discretion, to classify or
reclassify such Restricted Payment in any manner that complies with this
Section 4.9.


 


Section 4.10                               
LIMITATION ON
DIVIDEND AND OTHER PAYMENT RESTRICTIONS AFFECTING SUBSIDIARIES


 


The Issuer shall not and
the Guarantors shall not, and neither the Issuer nor the Guarantors shall
permit any of their respective Subsidiaries to, directly or indirectly, incur
or suffer to exist any consensual restriction on the ability of any of the
Subsidiaries (i) to pay dividends or make other distributions to or on
behalf of, (ii) to pay any obligation to or on behalf of, (iii) to
otherwise transfer assets or property to or on behalf of, or (iv) to make
or pay loans or advances to or on behalf of, the Issuer or any of the
Subsidiaries, except:


 


(1)                                 
restrictions imposed
by the Notes, the Guarantees or this Indenture or by the Issuer’s other
Indebtedness (which may also be guaranteed by the Guarantors) ranking pari passu with the Notes or the
Guarantees, as


 


64
















 


applicable; provided,
that such restrictions are no more restrictive in any material respect than
those imposed by this Indenture and the Notes,


 


(2)                                 
restrictions imposed
by applicable law, rule, regulation or order,


 


(3)                                 
existing restrictions
under Existing Indebtedness,


 


(4)                                 
restrictions under
(i) any Acquired Indebtedness not incurred in violation of this Indenture
or (ii) any agreement (including any Equity Interest) relating to any
property, asset, or business acquired by the Issuer or any of its Subsidiaries,
which restrictions in the case of both (i) and (ii) existed at the time of
acquisition, were not put in place in connection with or in anticipation of
such acquisition and are not applicable to any Person, other than the Person
acquired, or to any property, asset or business, other than the property,
assets and business so acquired,


 


(5)                                 
any restriction
imposed by Indebtedness incurred under the Credit Agreement pursuant to
Section 4.7; provided, that
such restriction is no more restrictive in any material respect than that
imposed by the Credit Agreement as of the Issue Date,


 


(6)                                 
restrictions with
respect solely to any of the Subsidiaries imposed pursuant to a binding
agreement which has been entered into for the sale or disposition of all of the
Equity Interests or assets of such Subsidiary; provided,
that such restrictions apply solely to the Equity Interests or assets of such
Subsidiary which are being sold,


 


(7)                                 
restrictions on
transfer contained in Purchase Money Indebtedness or Capitalized Lease
Obligations permitted to be incurred pursuant to Section 4.7; provided, that such restrictions relate
only to the transfer of the property acquired with the proceeds of such
Indebtedness,


 


(8)                                 
limitations on the
disposition or distribution of assets or property in joint venture agreements,
co-manufacturing agreements and other similar agreements entered into in the
ordinary course of business,


 


(9)                                 
restrictions on cash
or other deposits imposed by customers under contracts or other arrangements
entered into or agreed to in the ordinary course of business, and


 


(10)                           
in connection with
and pursuant to Refinancing Indebtedness, the replacement of restrictions
imposed pursuant to clauses (1), (3), (4), (5) or (7) of this
Section 4.10 or this clause (10) that are not more restrictive in any
material respect as determined by the Issuer’s Board of Directors in its
reasonable good faith judgment than those being replaced and do not apply


 


65
















 


to any other Person or assets than those that would
have been covered by the restrictions in the Indebtedness so refinanced.


 


Notwithstanding the
foregoing, (a) there may exist customary provisions restricting subletting
or assignment of any lease entered into in the ordinary course of business,
consistent with industry practice and (b) any asset subject to a Lien
which is not prohibited to exist with respect to such asset pursuant to the
terms of this Indenture may be subject to customary restrictions on the
transfer or disposition thereof pursuant to such Lien.


 


Section 4.11                               
LIMITATION ON
IMPAIRMENT OF SECURITY INTERESTS


 


Except as permitted
herein, the Intercreditor Agreement and the Collateral Agreements, the Issuer
shall not and the Guarantors shall not, and neither the Issuer nor the
Guarantors shall permit the Subsidiaries to, take or omit to take any action
that would have the result of materially adversely affecting or impairing the
Lien on the Collateral in favor of the Trustee for the benefit of the Holders
of the Notes.


 


Section 4.12                               
LIMITATION ON
TRANSACTIONS WITH AFFILIATES


 


The Issuer and the
Guarantors shall not, and neither the Issuer nor the Guarantors shall permit
any of the Subsidiaries to, on or after the Issue Date, directly or indirectly,
sell, lease, transfer or otherwise dispose of any of the Issuer’s or their
properties or assets to, or purchase any property or assets from, or enter into
or suffer to exist any contract, agreement, understanding, loan, advance,
guarantee, arrangement or transaction with, or for the benefit of, any
Affiliate (each of the foregoing, an “Affiliate
Transaction”), or any series of related Affiliate Transactions
(other than Exempted Affiliate Transactions):


 


(1)                                 
unless it is
determined that the terms of such Affiliate Transaction(s) are fair and
reasonable to the Issuer, and no less favorable to the Issuer than could have
been obtained in an arm’s length transaction with a non-Affiliate,


 


(2)                                 
if involving
consideration to either party of $1,000,000 or more, unless such Affiliate
Transaction(s) has been approved by a majority of the members of the Issuer’s
Board of Directors that are disinterested in such transaction, if there are any
directors who are so disinterested, and


 


(3)                                 
if involving
consideration to either party of $5,000,000 or more (or $1,000,000 or more if
no members of the Issuer’s Board of Directors are disinterested in such
transaction) unless, in addition to the requirements set forth in
clauses (1) and (2) above, the Issuer, prior to the consummation thereof,
obtains a written favorable opinion as to the fairness of such transaction(s)
to the Issuer from a financial point of view from an independent investment
banking firm of national reputation in the United States or, if pertaining to a
matter for which such investment banking firms do not customarily render such
opinions, an appraisal or valuation firm of national reputation in the United
States.


 


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Section 4.13                               
LIMITATION ON SALE OF
ASSETS AND SUBSIDIARY STOCK


 


(a) The Issuer shall
not and the Guarantors shall not, and neither the Issuer nor the Guarantors
shall permit any of the Subsidiaries to, in one or a series of related
transactions, convey, sell, transfer, assign or otherwise dispose of, directly
or indirectly, any property, business or assets, including by merger or consolidation
(in the case of one of the  Subsidiaries), and including any sale or other
transfer or issuance of any Equity Interests of any of the Subsidiaries,
whether by the Issuer or one of its Subsidiaries or through the issuance, sale
or transfer of Equity Interests by any of the Subsidiaries and including any
sale-leaseback transaction (any of the foregoing, an “Asset Sale”) unless:


 


(1)                                 
at least 75% of the
total consideration for such Asset Sale or series of related Asset Sales
consists of cash or Cash Equivalents,


 


(2)                                 
with respect to any
Asset Sale or related series of Asset Sales involving a conveyance, sale,
transfer, assignment or other disposition of securities, property or assets with
an aggregate fair market value in excess of $2,000,000, management determines
in reasonable good faith that the Issuer shall receive or such Subsidiary shall
receive, as applicable, fair market value for such Asset Sale, and


 


(3)                                 
with respect to any
Asset Sale or related series of Asset Sales involving a conveyance, sale,
transfer, assignment or other disposition of securities, property or assets
with an aggregate fair market value in excess of $5,000,000, the Issuer’s Board
of Directors determines in reasonable good faith that the Issuer will receive
or such Subsidiary will receive, as applicable, fair market value for such
Asset Sale.


 


For purposes of
clause (1) of this Section 4.13(a), the following shall be deemed to constitute
cash or Cash Equivalents: (a) the amount of any Indebtedness or other
liabilities of the Issuer or such Subsidiary (other than Indebtedness or
liabilities that are by their terms subordinated to the Notes and the
Guarantees) that are assumed by the transferee of any such assets so long as
the documents governing such liabilities provide that there is no further
recourse to the Issuer or any of its Subsidiaries with respect to such
liabilities and (b) fair market value of any marketable securities,
currencies, notes or other obligations received by the Issuer or any such
Subsidiary in exchange for any such assets that are converted into cash or Cash
Equivalents within 90 days after the consummation of such Asset Sale, provided, that such cash and Cash
Equivalents shall be treated as Net Cash Proceeds attributable to the original
Asset Sale for which such property was received.


 


(b) Within
360 days following such Asset Sale, the Net Cash Proceeds therefrom (the “Asset Sale Amount”) shall be:


 


(1)                                 
(i) used to
retire Purchase Money Indebtedness secured by the asset which was the subject
of the Asset Sale, or (ii) used to retire and permanently reduce
Indebtedness incurred under the Credit Agreement; provided, that in


 


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the case of a revolver or similar arrangement that
makes credit available, such commitment is permanently reduced by such amount;
or


 


(2)                                 
invested in assets or
property (other than notes, bonds, obligations and securities, except in
connection with the acquisition of a Person in a Related Business which
immediately following such acquisition becomes a Subsidiary and a Guarantor)
which in the reasonable good faith judgment of the Issuer’s Board of Directors
will immediately constitute or be a part of a Related Business of the Issuer or
such Subsidiary (if it continues to be a Subsidiary) immediately following such
transaction; or


 


(3)                                 
any combination of
(1) or (2).


 


(c) All Net Cash
Proceeds from an Event of Loss shall be used as follows: (x) first, the
Issuer shall use such Net Cash Proceeds to the extent necessary to rebuild,
repair, replace or restore the assets subject to such Event of Loss with
comparable assets; and (y) then, to the extent any Net Cash Proceeds from
an Event of Loss are not used as described in the preceding clause (x) all
such remaining Net Cash Proceeds shall be reinvested or used as provided in
clause (1), (2) or (3) of Section 4.13(b).


 


(d) The accumulated Net
Cash Proceeds from Asset Sales not applied as set forth in clause (1), (2)
or (3) of Section 4.13(b) and the accumulated Net Cash Proceeds from any
Event of Loss not applied as set forth in clause (x) or (y) of
Section 4.13(c) shall constitute “Excess
Proceeds.” Pending the final application of any Net Cash
Proceeds,  the Issuer may temporarily reduce revolving credit borrowings
or otherwise invest or use for general corporate purposes (other than
Restricted Payments that are not solely Restricted Investments) the Net Cash
Proceeds in any manner that is not prohibited by this Indenture; provided, however, that the Issuer may not
use the Net Cash Proceeds to make Restricted Payments other than Restricted
Payments that are solely Restricted Investments or to make Permitted
Investments pursuant to clause (a) of the definition thereof.


 


(e) When the Excess
Proceeds equal or exceed $5,000,000, the Issuer shall offer to repurchase the
Notes, together with any other Indebtedness ranking on a parity with the Notes
and with similar provisions requiring the Issuer to make an offer to purchase
such Indebtedness with the proceeds from such Asset Sale pursuant to a cash
offer (subject only to conditions required by applicable law, if any), pro rata in proportion to the respective
principal amounts of such Indebtedness (or accreted values in the case of
Indebtedness issued with an original issue discount) and the Notes (the “Asset Sale Offer”) at a purchase price of
100% of the principal amount (or accreted value in the case of Indebtedness
issued with an original issue discount) (the “Asset
Sale Offer Price”) together with accrued and unpaid Interest (and
Liquidated Damages, if any) to the date of payment.  In order to effect
the Asset Sale Offer, the Issuer shall promptly after expiration of the 360-day
period following the Asset Sale that produced such Excess Proceeds mail to each
Holder of Notes notice of the Asset Sale Offer (the “Asset Sale Notice”), offering to purchase the Notes on a
date (the “Asset Sale Purchase Date”)
that is no earlier than 30 days and no later than 60 days after the
date that the Asset Sale Notice is mailed.


 


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On the Asset Sale
Purchase Date, the Issuer shall apply an amount equal to the Excess Proceeds
(the “Asset Sale Offer Amount”) to
the purchase of all Indebtedness properly tendered in accordance with the
provisions of this Section 4.13 (on a pro
rata basis if the Asset Sale Offer Amount is insufficient to
purchase all Indebtedness so tendered) at the Asset Sale Offer Price together
with accrued and unpaid Interest (and Liquidated Damages, if any) to the date
of payment.  To the extent that the aggregate amount of Notes and such
other pari passu Indebtedness
tendered pursuant to an Asset Sale Offer is less than the Asset Sale Offer Amount,
the Issuer may use any remaining Net Cash Proceeds as otherwise permitted by
this Indenture.  Following the consummation of each Asset Sale Offer in
accordance with the provisions of this Section 4.13, the Excess Proceeds
amount shall be reset to zero.


 


(f) Notwithstanding,
and without complying with, the provisions of this Section 4.13:


 


(1)                                 
the Issuer may and
its Subsidiaries may, in the ordinary course of business, (x) convey,
sell, transfer, assign or otherwise dispose of inventory and other assets
acquired and held for resale in the ordinary course of business,
(y) liquidate Cash Equivalents and (z) sell or discount, in each case
without recourse, accounts receivable arising in the ordinary course of
business, but only in connection with the compromise thereof;


 


(2)                                 
the Issuer may and
the Subsidiaries may convey, sell, transfer, assign or otherwise dispose of
assets pursuant to and in accordance with Article V;


 


(3)                                 
the Issuer may and
the Subsidiaries may sell or dispose of damaged, worn out or other obsolete
personal property in the ordinary course of business so long as such property
is no longer necessary for the proper conduct of the Issuer’s business or the
business of such Subsidiary, as applicable;


 


(4)                                 
the Issuer may and
the Guarantors may convey, sell, transfer, assign or otherwise dispose of
assets to the Issuer or any of the Guarantors;


 


(5)                                 
the Issuer may and
the Subsidiaries may settle, release or surrender tort or other litigation
claims in the ordinary course of business or grant Liens not prohibited by this
Indenture;


 


(6)                                 
the Issuer may and
the Subsidiaries may exchange any property or assets for property or assets of
the type set forth in Section 4.13(b)(2);


 


(7)                                 
the Subsidiaries may
issue Equity Interests to the Issuer or to any other Subsidiary;


 


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(8)                                 
the Issuer may and
the Subsidiaries may make Permitted Investments pursuant to clauses (d)
and (k) in the definition thereof and Restricted Investments that are not
prohibited by Section 4.9;


 


(9)                                 
the Issuer may and
its Subsidiaries may convey, sell, transfer, assign or otherwise dispose of
assets with a fair market value (or that result in gross proceeds) of less than
$1,000,000, until the aggregate fair market value and gross proceeds of the
transactions excluded from the definition of Asset Sale pursuant to this
clause (9) exceed $5,000,000; and


 


(10)                           
the Issuer may and
its Subsidiaries may grant Permitted Liens.


 


All Net Cash Proceeds
from an Event of Loss shall be reinvested or used as otherwise provided above
in clauses (1), (2) and (3) of Section 4.13(b).


 


(g) Any Asset Sale
Offer shall be made in compliance with all applicable laws, rules, and
regulations, including, if applicable, Regulation 14E of the Exchange Act
and the rules and regulations thereunder and all other applicable Federal and
state securities laws.  To the extent that the provisions of any
securities laws or regulations conflict with the provisions of this Section 4.13,
the Issuer’s compliance or the compliance of any of its Subsidiaries with such
laws and regulations shall not in and of itself cause a breach of the Issuer’s
obligations under this Section 4.13.


 


(h) If the Asset
Sale Purchase Date is on or after an Interest Record Date and on or before the
associated Interest Payment Date, any accrued and unpaid Interest (and
Liquidated Damages, if any) due on such Interest Payment Date shall be paid to
the Person in whose name a Note is registered at the close of business on such
Interest Record Date.


 


(i) The Trustee
shall be entitled to receive in connection with an Asset Sale such documents,
if any, required by the TIA.


 


Section 4.14                               
REPURCHASE OF NOTES
AT THE OPTION OF THE HOLDER UPON A CHANGE OF CONTROL


 


(a)          
In the event that a Change of Control has occurred, each Holder of Notes shall
have the right, at such Holder’s option, pursuant to an offer (subject only to
conditions required by applicable law, if any) by the Issuer (the “Change of Control Offer”), to require the
Issuer to repurchase all or any part of such Holder’s Notes (provided, that the principal amount of
such Notes must be $1,000 or an integral multiple thereof) on a date (the “Change of Control Purchase Date”) that is
no later than 60 days after the occurrence of such Change of Control, at a
cash price equal to 101% of the principal amount thereof (the “Change of Control Purchase Price”),
together with accrued and unpaid Interest (and Liquidated Damages, if any) to
the Change of Control Purchase Date.


 


The Change of Control
Offer shall be made within 30 days following a Change of Control and shall
remain open for at least 30 days following its commencement (the


 


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“Change of Control
Offer Period”). On the Change of Control Purchase Date, to the
extent lawful, the Issuer promptly shall purchase all Notes properly tendered
in response to the Change of Control Offer.


 


(b)          
On or before the Change of Control Purchase Date, the Issuer shall:


 


(1)          
accept for payment Notes or portions thereof properly tendered pursuant to the
Change of Control Offer,


 


(2)          
deposit with the Paying Agent cash sufficient to pay the Change of Control
Purchase Price, together with accrued and unpaid Interest (and Liquidated
Damages, if any) to the Change of Control Purchase Date of all Notes so
tendered, and


 


(3)          
deliver to the Trustee the Notes so accepted together with an Officers’
Certificate listing the Notes or portions thereof being purchased by the
Issuer.


 


The Paying Agent promptly
shall pay each Holder of Notes so accepted an amount equal to the Change of
Control Purchase Price together with accrued and unpaid Interest (and
Liquidated Damages, if any) to the Change of Control Purchase Date, and the
Trustee promptly shall authenticate and deliver to such Holder a new Note equal
in principal amount to any unpurchased portion of the Note surrendered. 
Any Notes not so accepted shall be delivered promptly by the Issuer to the
Holder thereof.  The Issuer shall publicly announce the results of the
Change of Control Offer on or as soon as practicable after the Change of
Control Purchase Date.


 


The provisions described
above requiring the Issuer to make a Change of Control Offer following a Change
of Control shall be applicable regardless of whether or not any other
provisions of this Indenture are applicable.


 


(c)          
The Issuer shall not be required to make a Change of Control Offer upon a
Change of Control if a third party makes the Change of Control Offer in the
manner, at the times and otherwise in compliance with the requirements set
forth in this Indenture applicable to a Change of Control Offer made by the
Issuer and purchases all Notes validly tendered and not withdrawn under such
Change of Control Offer.


 


(d)          
Any Change of Control Offer shall be made in compliance with all applicable
laws, rules and regulations, including, if applicable, Regulation 14E
under the Exchange Act and the rules thereunder and all other applicable Federal
and state securities laws.  To the extent that the provisions of any
securities laws or regulations conflict with the provisions of this
Section 4.14, the Issuer’s compliance or compliance by any of the
Guarantors with such laws and regulations shall not in and of itself cause a
breach of the Issuer’s or the Guarantors’ obligations under this
Section 4.14.


 


(e)          
If the Change of Control Purchase Date is on or after an Interest Record Date
and on or before the associated Interest Payment Date, any accrued and


 


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unpaid Interest (and Liquidated Damages, if any) due
on such Interest Payment Date shall be paid to the Person in whose name a Note
is registered at the close of business on such Interest Record Date.


 


Section 4.15                               
SUBSIDIARY GUARANTORS


 


All of the Issuer’s
present and future Subsidiaries (other than Excluded Foreign Subsidiaries)
shall (i)  jointly and severally guarantee all principal of and premium,
if any, and Interest (and Liquidated Damages, if any) on the Notes on a senior
secured basis in accordance with Section 4.21, (ii) grant a security
interest in and/or pledge the Collateral owned by such Subsidiary to secure
such Obligations on the terms set forth in the Collateral Agreements and (iii) deliver
to the Trustee an Opinion of Counsel that such Guarantee and the Collateral
Agreements have been duly authorized, executed and delivered and are valid,
binding and enforceable in accordance with their terms.


 


Notwithstanding anything
in this Indenture to the contrary, if any of the Issuer’s Foreign Subsidiaries
that is not a Guarantor guarantees any other Indebtedness of the Issuer or any
Guarantor, or the Issuer or any of the Guarantors, individually or
collectively, pledges more than 65% of the Voting Equity Interests of a Foreign
Subsidiary that is not a Guarantor to a lender to secure the Issuer’s
Indebtedness or any Indebtedness of any Guarantor, then such Foreign Subsidiary
must become a Guarantor.


 


Section 4.16                               
LIMITATION ON STATUS
AS INVESTMENT COMPANY


 


The Issuer, the
Guarantors and the Subsidiaries shall be prohibited from being required to
register as an “investment company” (as that term is defined in the Investment
Company Act of 1940, as amended (the “Investment
Company Act”)), or from otherwise becoming subject to regulation
under the Investment Company Act.


 


Section 4.17                               
MAINTENANCE OF
PROPERTIES AND INSURANCE


 


The Issuer and the
Guarantors shall cause all material properties used or useful to the conduct of
their business and the business of each of the Subsidiaries to be maintained
and kept in good condition, repair and working order (reasonable wear and tear
excepted) in all material respects and supplied with all necessary equipment
and shall cause to be made all necessary repairs, renewals, replacements,
betterments and improvements thereof, all as in their reasonable judgment may
be necessary, so that the business carried on in connection therewith may be
properly conducted at all times; provided,
however, that nothing in this Section 4.17 shall prevent the
Issuer, any Guarantor or any Subsidiary from discontinuing any operation or
maintenance of any of such properties, or disposing of any of them, if such
discontinuance or disposal is (a) in the judgment of the Board of
Directors of the Issuer, desirable in the conduct of the business of such
entity and (b) not otherwise prohibited by this Indenture or the
Collateral Agreements.


 


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Section 4.18                               
CORPORATE EXISTENCE


 


Subject to Article V
hereof, the Issuer shall do or cause to be done all things necessary to
preserve and keep in full force and effect (i) its corporate existence and
the corporate, partnership or other existence of each of the Subsidiaries, in
accordance with the respective organizational documents (as the same may be
amended from time to time) of the Issuer or any such Subsidiary and
(ii) the rights (charter and statutory), licenses and franchises of the
Issuer and each of the Subsidiaries; provided,
however, that the Issuer shall not be required to preserve any such
right, license or franchise, or the corporate, partnership or other existence
of any of the Subsidiaries, if the Issuer’s Board of Directors shall determine
that the preservation thereof is no longer desirable in the conduct of the
business of the Issuer and each of the Subsidiaries, taken as a whole, and that
the loss thereof would not have a material adverse effect on the ability of the
Issuer and the Guarantors to satisfy their obligations under the Notes, the
Guarantees and this Indenture.


 


Section 4.19                               
LIMITATION ON LINES
OF BUSINESS


 


 The Issuer shall
not and the Guarantors shall not, and neither the Issuer nor the Guarantors
shall permit any of the Subsidiaries to, directly or indirectly engage to any
substantial extent in any line or lines of business activity other than that
which, in the reasonable good faith judgment of the Issuer’s Board of
Directors, is a Related Business.


 


Section 4.20                               
RULE 144A
INFORMATION


 


For so long as the Notes
constitute “restricted securities” within the meaning of Rule 144(a)(3) under
the Securities Act and the Issuer is not subject to the informational requirements
of the Exchange Act, the Issuer shall, and the Guarantors shall, furnish to the
Holders or beneficial holders of Notes, upon their request, and to prospective
purchasers thereof designated by such Holders or beneficial holders of Notes,
the information required to be delivered pursuant to Rule 144A(d)(4) under
the Securities Act.


 


Section 4.21                               
ADDITIONAL COLLATERAL


 


The Issuer shall, and
shall cause each of the Subsidiaries (other than Excluded Foreign Subsidiaries)
to, grant to the Trustee a first priority security interest in all Collateral,
whether owned on the Issue Date or thereafter acquired, and execute and deliver
all documents and to take all action reasonably necessary to perfect and
protect such a security interest in favor of the Trustee, in each case, subject
to the terms of the Intercreditor Agreement.


 


Section 4.22                               
REPURCHASE OF NOTES
AT THE OPTION OF THE HOLDER FROM EXCESS CASH FLOW


 


Within 90 days after
the end of each fiscal year, the Issuer shall make an offer to all Holders (the
“Excess Cash Flow Offer”) to
purchase the maximum principal amount of Notes that is an integral multiple of
$1,000 with 50% of the Issuer’s Excess Cash Flow


 


73
















 


from such fiscal year (measured from the Issue Date in
the case of the fiscal year in which the Issue Date occurs) (the “Excess Cash Flow Offer Amount”), at a
purchase price in cash equal to 101% of the principal amount of the Notes to be
purchased (the “Excess Cash Flow Purchase
Price”), together with accrued and unpaid Interest (and Liquidated
Damages, if any) to the date fixed for the purchase of the Notes pursuant to
such Excess Cash Flow Offer; provided,
however, that the Excess Cash
Flow Offer Amount for a fiscal year shall be reduced by the aggregate principal
amount of Notes purchased by the Issuer in the open market during such fiscal
year and during the period prior to the date of such Excess Cash Flow Offer,
but only to the extent that such principal amount was not taken into account in
reducing the Excess Cash Flow Offer Amount for any prior periods.


 


In order to effect the
Excess Cash Flow Offer, the Issuer shall promptly mail to each Holder of Notes
notice of the Excess Cash Flow Offer (the “Excess
Cash Flow Notice”) offering to purchase the Notes on a date (the “Excess Cash Flow Purchase Date”) that is
no earlier than 30 days and no later than 60 days after the date that
the Excess Cash Flow Notice is mailed. The Excess Cash Flow Offer will be
required to remain open for 20 Business Days following its commencement.


 


On the Excess Cash Flow
Purchase Date, the Issuer shall apply the Excess Cash Flow Offer Amount to the
purchase of all Notes properly tendered pursuant to an Excess Cash Flow Offer
(on a pro rata basis if the Excess Cash Flow Offer Amount is insufficient to
purchase all Notes so tendered) at the Excess Cash Flow Purchase Price,
together with accrued and unpaid Interest (and Liquidated Damages, if any) to
the date of payment. To the extent that the aggregate amount of Notes tendered
pursuant to any Excess Cash Flow Offer is less than the Excess Cash Flow Offer
Amount, the Issuer may use any remaining Excess Cash Flow Offer Amount as
otherwise permitted by this Indenture.


 


Any Excess Cash Flow
Offer shall be made in compliance with all applicable laws, rules and
regulations, including, if applicable, Regulation 14E under the Exchange
Act and the rules and regulations thereunder and all other applicable federal
and state securities laws. To the extent that the provisions of any securities
laws or regulations conflict with the provisions of this Section 4.22, the
Issuer’s compliance or the compliance of any of the Subsidiaries with such laws
and regulations will not in and of itself cause a breach of the Issuer’s
obligations under this Section 4.22.


 


ARTICLE V

SUCCESSORS


 


Section 5.1                                     
LIMITATION ON MERGER,
SALE OR CONSOLIDATION


 


The Issuer shall not
consolidate with or merge with or into another Person or, directly or indirectly,
sell, lease, convey or transfer all or substantially all of the Issuer’s assets
(such amounts to be computed on a consolidated basis), whether in a single
transaction or a series of related transactions, to another Person or group of
affiliated Persons, unless:


 


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(1)                                 
either (a) the
Issuer is the surviving Person or (b) the resulting, surviving or
transferee Person is a corporation organized under the laws of the United
States, any state thereof or the District of Columbia and expressly assumes by
supplemental indenture all of the Issuer’s Obligations in connection with the
Notes, this Indenture and the Collateral Agreements;


 


(2)                                 
no Default or Event
of Default shall exist or shall occur immediately after giving effect on a pro forma basis to such transaction;


 


(3)                                 
unless such
transaction is (i) the consolidation or merger of the Issuer and one of
the Issuer’s previously existing Wholly Owned Subsidiaries or a sale,
assignment, transfer, lease, conveyance or other disposition of all or
substantially all of the assets of the Issuer to a Wholly Owned Subsidiary of
the Issuer, (ii) not for the purpose of evading this provision and not in
connection with any other transaction and (iii) otherwise complies with
this Indenture (including, without limitation, Section 4.13
(notwithstanding clause (2) of Section 4.13(f)) and Section 4.15),
immediately after giving effect to such transaction on a pro forma basis, the Consolidated Net
Worth of the resulting, surviving or transferee Person is at least equal to the
Issuer’s Consolidated Net Worth immediately prior to such transaction;


 


(4)                                 
unless such
transaction is (i) the consolidation or merger of the Issuer and one of
the Issuer’s previously existing Wholly Owned Subsidiaries or a sale,
assignment, transfer, lease, conveyance or other disposition of all or
substantially all of the assets of the Issuer to a Wholly Owned Subsidiary of
the Issuer, (ii) not for the purpose of evading this provision and not in
connection with any other transaction and (iii) otherwise complies with
this Indenture (including, without limitation, Section 4.13
(notwithstanding clause (2) of Section 4.13(f)) and Section 4.15),
immediately after giving effect to such transaction on a pro forma basis, the resulting, surviving
or transferee Person would immediately thereafter be permitted to incur at
least $1.00 of additional Indebtedness pursuant to the Debt Incurrence Ratio
set forth in Section 4.7; and


 


(5)                                 
each Guarantor shall
have, if required by the terms of this Indenture, confirmed in writing that its
Guarantee shall apply to the Obligations of the Issuer or the resulting,
surviving or transferee Person in accordance with the Notes and this Indenture.


 


Section 5.2                                     
SUCCESSOR CORPORATION
SUBSTITUTED


 


In the event of any
transaction (other than a lease or transfer of less than all of the Issuer’s
assets) in accordance with the foregoing in which the Issuer is not the
surviving Person, the resulting, surviving or transferee Person shall succeed
to and be substituted for, and may exercise every right and power of, the
Issuer under this Indenture with the same effect as if such resulting,
surviving or transferee Person had been named therein as the Issuer, and the
Trustee may require any such Person to ensure, by executing


 


75
















 


and delivering appropriate instruments and Opinions of
Counsel, that the Trustee continues to hold a Lien, having the same relative
priority as was the case immediately prior to such transactions, on all
Collateral for the benefit of the Holders.


 


For purposes of the
foregoing, the transfer (by lease, assignment, sale or otherwise) of all or
substantially all of the properties and assets of one or more of the
Subsidiaries, the Issuer’s interest in which constitutes all or substantially
all of the Issuer’s properties and assets, shall be deemed to be the transfer
of all or substantially all of the Issuer’s properties and assets.


 


ARTICLE VI

DEFAULTS AND REMEDIES


 


Section 6.1                                     
EVENTS OF DEFAULT


 


“Event of Default,” wherever used herein,
means any of the following events:


 


(1)                                 
the Issuer’s failure
to pay any installment of Interest (or Liquidated Damages, if any) on the Notes
as and when the same becomes due and payable and the continuance of any such
failure for 30 days,


 


(2)                                 
the Issuer’s failure
to pay all or any part of the principal of or premium, if any, on the Notes
when and as the same becomes due and payable at maturity, redemption, by
acceleration or otherwise, including, without limitation, payment of the Change
of Control Purchase Price, the Asset Sale Offer Price or the Excess Cash Flow
Purchase Price, on Notes validly tendered and not properly withdrawn pursuant
to a Change of Control Offer, Asset Sale Offer or Excess Cash Flow Offer, as
applicable,


 


(3)                                 
the Issuer’s failure
or the failure by any of the Guarantors or any of the Subsidiaries to observe
or perform any other covenant or agreement contained in the Notes or this
Indenture (excluding the covenant set forth in the next to last sentence of
Section 4.3) and, except for the provisions under Sections 4.13, 4.14,
4.22 and 5.1, the continuance of such failure for a period of 30 days
after the earlier of the Issuer’s receipt of written notice of such Default
from the Trustee or from the Holders of at least 25% in aggregate principal
amount of the Notes outstanding,


 


(4)                                 
a default occurs
(after giving effect to any waivers, amendments, applicable grace periods or
any extension of any maturity date) in the Issuer’s Indebtedness or the
Indebtedness of any of the Guarantors or any of the Subsidiaries with an
aggregate amount outstanding in excess of $5,000,000 (a) resulting from
the failure to pay principal of such Indebtedness at maturity, or (b) if
as a result of such default, the maturity of such Indebtedness has been
accelerated prior to its stated maturity,


 


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(5)                                 
final, non-appealable
unsatisfied judgments not covered by insurance aggregating in excess of
$5,000,000, at any one time rendered against the Issuer, any of the Guarantors
or any of the Subsidiaries and not stayed, bonded or discharged within
60 days,


 


(6)                                 
any Guarantee of a
Guarantor ceases to be in full force and effect or becomes unenforceable or
invalid or is declared null and void (other than in accordance with the terms
of the Guarantee and this Indenture) or any Guarantor denies or disaffirms its
Obligations under its Guarantee,


 


(7)                                 
any failure to comply
with any material agreement or material covenant in any of the Collateral
Agreements, and such failure or breach shall continue for a period of
30 days after written notice is given to the Issuer by the Trustee, or to
the Issuer and the Trustee by the Holders of at least 25% in aggregate
principal amount of the Notes outstanding,


 


(8)                                 
any of the Collateral
Agreements at any time for any reason ceases to be in full force and effect, or
is declared null and void, or shall cease to be effective in all material
respects to give the Trustee the Liens with the priority purported to be
created thereby (subject to the Intercreditor Agreement) subject to no other
Liens (in each case, other than as expressly permitted by this Indenture and
the applicable Collateral Agreement or by reason of the termination of this
Indenture or the applicable Collateral Agreement in accordance with its terms),


 


(9)                                 
a court having
jurisdiction in the premises enters a decree or order for (A) relief in respect
of the Issuer, any of the Guarantors, or any Significant Subsidiary in an
involuntary case under any applicable Bankruptcy Law now or hereafter in
effect, (B) appointment of a receiver, liquidator, assignee, custodian,
trustee, sequestrator or similar official of the Issuer, any of the Guarantors
or any Significant Subsidiary or for all or substantially all of the property
and assets of the Issuer, any of the Guarantors or any Significant Subsidiary
or (C) the winding up or liquidation of the affairs of the Issuer, any of the
Guarantors or any Significant Subsidiary and, in each case, such decree or
order shall remain unstayed and in effect for a period of 60 consecutive days,
or


 


(10)                           
the Issuer, any of
the Guarantors or any Significant Subsidiary (A) commences a voluntary case
under any applicable Bankruptcy 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 of the Guarantors or any Significant Subsidiary or for all or substantially
all of the property and assets of the Issuer, any of the Guarantors or any
Significant Subsidiary or (C) effects any general assignment for the benefit of
creditors.


 


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If a Default occurs and
is continuing, the Trustee shall, within 90 days after the occurrence of
such Default, give to the Holders notice of such Default. 


 


If an Event of Default
occurs and is continuing (other than an Event of Default specified in clause
(9) or (10) above relating to the Issuer, any of the Guarantors or any of the
Issuer’s Significant Subsidiaries) then in every such case, unless the
principal of all of the Notes shall have already become due and payable, either
the Trustee or the Holders of at least 25% in aggregate principal amount of the
Notes then outstanding, by notice in writing to Issuer (and to the Trustee if
given by Holders) (an “Acceleration Notice”),
may declare all principal thereof and all premium, if any, and accrued and unpaid
Interest (and Liquidated Damages, if any) thereon to be due and payable
immediately.  If an Event of Default specified in clause (9) or (10)
above, relating to the Issuer, any of the Guarantors or any of the Issuer’s
Significant Subsidiaries occurs, all principal thereof and all premium, if any,
and accrued and unpaid Interest (and Liquidated Damages, if any) thereon will
be immediately due and payable on all outstanding Notes without any declaration
or other act on the part of the Trustee or the Holders.  The Holders of a
majority in aggregate principal amount of Notes generally are authorized to
rescind such acceleration if all existing Events of Default (other than the
non-payment of the principal of and premium, if any, and Interest (and Liquidated
Damages, if any) on the Notes which have become due solely by such
acceleration) have been cured or waived. 


 


Section 6.2                                     
ACCELERATION


 


(a)          
Subject to the terms of the Intercreditor Agreement, if an Event of Default
(other than an Event of Default specified in clause (9) or (10) of
Section 6.1 that occurs with respect to the Issuer, any of the Guarantors or any of their Significant
Subsidiaries) occurs and is continuing under this Indenture, then in every such
case, unless the principal of all of the Notes shall have already become due
and payable, either the Trustee or the Holders of at least 25% in aggregate
principal amount of the Notes, then outstanding, by written notice to the
Issuer (and to the Trustee if such
notice is given by the Holders), may, and the Trustee at the request of such
Holders shall, declare the principal of, premium, if any, and accrued and
unpaid Interest (and Liquidated Damages, if any) on the Notes to be due and
payable immediately.  Upon a declaration of acceleration, such principal
of, premium, if any, and accrued and unpaid Interest (and Liquidated Damages,
if any) shall be immediately due and payable.  If an Event of Default
specified in clause (9) or (10) of Section 6.1, relating to the
Issuer, any of the Guarantors or
any of their Significant Subsidiaries occurs, all principal and accrued and
unpaid Interest (and Liquidated Damages, if any) thereon will be immediately
due and payable on all outstanding Notes without any declaration or other act
on the part of the Trustee or the Holders.


 


(b)          
At any time after such a declaration of acceleration being made and before a
judgment or decree for payment of the money due has been obtained by the
Trustee as hereinafter provided in this Article VI, the Holders of not less
than a majority in aggregate principal amount of then outstanding Notes, by
written notice to the Issuer


 


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and the Trustee, may rescind, on behalf of all
Holders, any such declaration of acceleration and its consequences if all
existing Events of Default, other than the non-payment of the principal of,
premium, if any, and Interest (and Liquidated Damages, if any) on the Notes
which have become due solely by such declaration of acceleration, have been cured
or waived as provided in Section 6.4 hereof.


 


(c)          
No such waiver shall cure or waive any subsequent Default or impair any right
consequent thereon.


 


Section 6.3                                     
OTHER REMEDIES


 


If an Event of Default occurs
and is continuing, subject to the terms of the Intercreditor Agreement, the
Trustee, may pursue any available remedy to collect the payment of principal,
premium, if any, and Interest (and Liquidated Damages, if any) on the Notes or
to enforce the performance of any provision of the Notes or this Indenture. 


 


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


 


Section 6.4                                     
WAIVER OF DEFAULTS


 


Subject to
Section 6.7 hereof, and prior to the declaration of acceleration of the
maturity of the Notes,  the Holders of a majority in aggregate principal
amount of the outstanding Notes, by written notice to the Issuer and to the
Trustee, may, on behalf of all Holders, waive any existing or past Default or
Event of Default hereunder and its consequences under this Indenture, except
(i) a Default in the payment of principal of or premium, if any, or
Interest (or Liquidated Damages, if any) on any Note not yet cured as specified
in clauses (1) and (2) of Section 6.1 hereof, (ii) a Default
with respect to any covenant or provision hereof which, under Article IX,
cannot be modified or amended without the consent of the Holder of each
outstanding Note affected, which Default or Event of Default may be waived only
with consent of the Holder of each outstanding Note affected, or (iii) a
Default with respect to any covenant or provision hereof which, under Article
IX, cannot be modified or amended without the consent of a supermajority of the
outstanding Notes affected, which Default or Event of Default may be waived
only with consent of a supermajority of the outstanding Notes affected.


 


Upon any such waiver,
such Default shall cease to exist, and any Event of Default arising therefrom
shall be deemed to have been cured for every purpose of this Indenture; but no
such waiver shall extend to any subsequent or other Default or impair any right
arising therefrom.


 


Section 6.5                                     
CONTROL BY MAJORITY


 


Subject to all provisions
of this Indenture and applicable law, the Holders of a majority in aggregate
principal amount of the then outstanding Notes may direct the


 


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time, method and place of conducting any proceeding
for exercising any remedy available to the Trustee or exercising any trust or
power conferred on the Trustee.  However, the Trustee may refuse to follow
any direction that conflicts with law or this Indenture, that the Trustee determines
in good faith may be unduly prejudicial to the rights of other Holders not
joining in the giving of such direction or that may involve the Trustee in
personal liability, and the Trustee may take any other action it deems proper
that is not inconsistent with any such direction received from Holders. 
Subject to Section 7.1, the Trustee shall be under no obligation to
exercise any of its rights or powers under this Indenture at the request, order
or direction of any of the Holders, unless such Holders have offered to the
Trustee reasonable security or indemnity.


 


Section 6.6                                     
LIMITATION ON SUITS 


 


A Holder may pursue a
remedy with respect to this Indenture or the Notes only if:


 


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


 


(b)          
the Holders of at least 25% in aggregate principal amount of the then
outstanding Notes make a written request to the Trustee to pursue the remedy;


 


(c)          
such Holder or Holders offer and, if requested, provide to the Trustee
indemnity satisfactory to the Trustee against any costs, liability or expense;


 


(d)          
the Trustee does not comply with the request within 60 days after receipt of
the request and the offer and, if requested, the provision of indemnity; and


 


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


 


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


 


Section 6.7                                     
RIGHTS OF HOLDERS OF
NOTES TO RECEIVE PAYMENT


 


Notwithstanding any other
provision of this Indenture, except as permitted by Section 9.2 hereof,
the right of any Holder to receive payment of the principal of, premium and
Interest (and Liquidated Damages, if any) on a Note, on or after the respective
due dates expressed in the Note (including in connection with an offer to
purchase) or to bring suit for the enforcement of any such payment on or after
such respective dates, shall not be impaired or affected without the consent of
such Holder.


 


Section 6.8                                     
COLLECTION SUIT BY
TRUSTEE


 


If an Event of Default
specified in Section 6.1(1) or (2) hereof occurs and is continuing, the
Trustee is authorized to recover judgment in its own name and as


 


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trustee of an express trust against the Issuer for the
whole amount of principal of, premium and Interest (and Liquidated Damages, if
any) remaining unpaid on the Notes and interest on overdue principal and, to
the extent lawful, interest and such further amount as shall be sufficient to
cover the costs and expenses of collection, including the reasonable
compensation, expenses, disbursements and advances of the Trustee, its agents
and counsel.


 


Section 6.9                                     
TRUSTEE MAY FILE
PROOFS OF CLAIM


 


The Trustee is authorized
to file such proofs of claim and other papers or documents as may be necessary
or advisable in order to have the claims of the Trustee (including any claim
for the reasonable compensation, expenses, disbursements and advances of the
Trustee, its agents and counsel) and the Holders allowed in any judicial
proceedings relative to the Issuer (or any other obligor upon the Notes), its
creditors or its property and shall be entitled and empowered to collect,
receive and distribute any money or other property payable or deliverable on
any such claims and any custodian in any such judicial proceeding is hereby
authorized by each Holder to make such payments to the Trustee, and in the
event that the Trustee shall consent to the making of such payments directly to
the Holders, to pay to the Trustee any amount due to it for the reasonable
compensation, expenses, disbursements and advances of the Trustee, its agents
and counsel, and any other amounts due the Trustee under Section 7.7
hereof.  To the extent that the payment of any such compensation,
expenses, disbursements and advances of the Trustee, its agents and counsel,
and any other amounts due the Trustee under Section 7.7 hereof out of the
estate in any such proceeding, shall be denied for any reason, payment of the
same shall be secured by a Lien on, and shall be paid out of, any and all
distributions, dividends, money, securities and other properties that the
Holders may be entitled to receive in such proceeding whether in liquidation or
under any plan of reorganization or arrangement or otherwise.  Nothing
herein contained shall be deemed to authorize the Trustee to authorize or
consent to or accept or adopt on behalf of any Holder any plan of
reorganization, arrangement, adjustment or composition affecting the Notes or
the rights of any Holder, or to authorize the Trustee to vote in respect of the
claim of any Holder in any such proceeding; provided,
however, that the Trustee may, on behalf of the Holders, vote for
the election of a trustee in bankruptcy or similar official and may be a member
of the creditor’s committee.


 


Section 6.10                               
PRIORITIES


 


Subject to the terms of
the Intercreditor Agreement, if the Trustee collects any money pursuant to this
Article, it shall pay out the money in the following order:


 


First:  to the Trustee, its agents and
attorneys for amounts due under Section 7.7 hereof, including payment of
all compensation, expense and liabilities incurred, and all advances made, by
the Trustee and the costs and expenses of collection (including the reasonable
compensation, expenses, disbursements and advances of the Trustee, its agents
and counsel);


 


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Second:  to Holders for amounts due and
unpaid on the Notes for principal and Interest (and Liquidated Damages, if any),
ratably, without preference or priority of any kind, according to the amounts
due and payable on the Notes for principal, premium and Interest (and
Liquidated Damages, if any), respectively; 


 


Third:  without duplication, to the
Holders for any other Obligations owing to the Holders under the Notes or this
Indenture; and


 


Fourth:  to the Issuer or to such party as
a court of competent jurisdiction shall direct.


 


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


 


Section 6.11                               
UNDERTAKING FOR COSTS


 


In any suit for the
enforcement of any right or remedy under this Indenture or in any suit against
the Trustee for any action taken or omitted by it as a Trustee, a court in its
discretion may require the filing by any party litigant in the suit of an
undertaking to pay the costs of the suit, and the court in its discretion may
assess reasonable costs, including reasonable attorneys’ fees, against any
party litigant in the suit, having due regard to the merits and good faith of
the claims or defenses made by the party litigant.  This Section 6.11
does not apply to a suit by the Trustee, a suit by a Holder pursuant to
Section 6.7 hereof, or a suit by Holders of more than 10% in principal
amount of the then outstanding Notes.


 


ARTICLE VII

TRUSTEE


 


Section 7.1                                     
DUTIES OF TRUSTEE


 


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


 


(b)          
Except during the continuance of an Event of Default of which the Trustee has
knowledge:


 


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


 


(ii)          
in the absence of bad faith on its part, the Trustee may conclusively rely, as
to the truth of the statements and the correctness of the opinions expressed
therein, upon certificates or opinions furnished to the Trustee and conforming


 


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to the requirements of this Indenture; but in the case
of any such certificates or opinions which are specifically required by any
provision hereof to be furnished to the Trustee, the Trustee shall examine the
certificates and opinions to determine whether or not they conform to the
requirements of this Indenture (but the Trustee need not confirm or investigate
the accuracy of mathematical calculations or other facts stated therein).


 


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


 


(i)           
this paragraph (c) 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 of the Trustee, unless it is proved that the Trustee was
negligent in ascertaining the pertinent facts; 


 


(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 hereof; and


 


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


 


(d)          
Whether or not therein expressly so provided, every provision of this Indenture
that in any way relates to the Trustee is subject to Sections 7.1 and 7.2
hereof.


 


(e)          
The Trustee is hereby authorized and directed to and shall enter into the
Intercreditor Agreement.


 


(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.


 


Section 7.2                                     
RIGHTS OF TRUSTEE


 


(a)          
In connection with the Trustee’s rights and duties under this Indenture, the
Trustee may conclusively rely upon any document believed by it to be genuine
and to have been signed or presented by the proper Person.  The Trustee
need not investigate any fact or matter stated in the document.


 


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


 


83
















 


on such Officers’ Certificate or Opinion of
Counsel.  The Trustee may consult with counsel and the written advice of
such counsel or any Opinion of Counsel shall be full and complete authorization
and protection from liability in respect of any action taken, suffered or
omitted by it hereunder in good faith and in reliance thereon.


 


(c)          
The Trustee may execute any of the trusts or powers hereunder or perform any
duties hereunder by or through its attorneys and agents and shall not be
responsible for the misconduct or negligence of any agent or attorney appointed
with due care.


 


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


 


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


 


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


 


(g)          
Except with respect to Section 4.1 hereof, the Trustee shall have no duty
to inquire as to the performance of the Issuer’s covenants in Article IV
hereof.  In addition, the Trustee shall not be deemed to have knowledge of
any Default or Event of Default except (i) any Event of Default occurring
pursuant to Sections 6.1(1) or 6.1(2) hereof or (ii) any Default or
Event of Default of which the Trustee shall have received written notification
in the manner set forth in this Indenture or an officer in the corporate trust
administration of the Trustee shall have obtained actual knowledge. 
Delivery of reports, information and documents to the Trustee under
Section 4.3 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 their covenants thereunder (as to which the
Trustee is entitled to rely exclusively on an Officers’ Certificate).


 


(h)          
The Trustee shall not be bound to make any investigation into the facts or
matters stated in any resolution, certificate, statement, instrument, opinion,
report, notice, request, direction, consent, order, bond, debenture, note, other
evidence of indebtedness or other paper or document, but the Trustee may, in
its discretion, make such further inquiry or investigation into such facts or
matters as it may see fit.


 


(i)           
The rights, privileges, protections, immunities and benefits given to the
Trustee, including, without limitation, its right to be indemnified, are
extended to, and shall be enforceable by, the Trustee in each of its capacities
hereunder and under


 


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each of the Collateral Agreements, and each agent, custodian
and other Person employed to act hereunder and under each of the Collateral
Agreements.


 


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


 


Section 7.3                                     
INDIVIDUAL RIGHTS OF
TRUSTEE


 


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


 


Section 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 or the Notes, it shall not be accountable for the Issuer’s use
of the proceeds from the Notes or any money paid to the Issuer or upon the
Issuer’s direction under any provision of this Indenture, it shall not be
responsible for the use or application of any money received by any Paying
Agent other than the Trustee, and it shall not be responsible for any statement
or recital herein or any statement in the Notes or any other document in
connection with the sale of the Notes or pursuant to this Indenture other than
its certificate of authentication.


 


Section 7.5                                     
NOTICE OF DEFAULTS


 


If a Default or Event of
Default occurs and is continuing and if it is known to the Trustee, the Trustee
shall mail to Holders a notice in the manner and to the extent provided by
Section 313(c) of the TIA of the Default or Event of Default within 90
days after it occurs.  Except in the case of a Default or Event of Default
in payment of principal of, premium, if any, Liquidated Damages, if any, or
Interest on any Note, the Trustee may withhold the notice if and so long as a
committee of its Responsible Officers in good faith determines that withholding
the notice is in the interests of the Holders.


 


Section 7.6                                     
REPORTS BY TRUSTEE TO
HOLDERS OF THE NOTES


 


Within 60 days after each
May 15 beginning with the May 15 following the date of this Indenture, and for
so long as Notes remain outstanding, the Trustee shall mail to the Holders a
brief report dated as of such reporting date that complies with TIA
§ 313(a) (but if no event described in TIA § 313(a) has occurred
within the 12 months preceding the reporting date, no report need be
transmitted).  The Trustee also shall


 


85
















 


comply with TIA § 313(b)(2).  The Trustee
shall also transmit by mail all reports as required by TIA § 313(c).


 


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


 


Section 7.7                                     
COMPENSATION AND
INDEMNITY


 


The Issuer shall pay to
the Trustee from time to time such compensation as the parties shall agree in
writing from time to time for its acceptance of this Indenture and 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 promptly upon request for all reasonable disbursements, advances
and expenses incurred or made by it in addition to the compensation for its
services.  Such expenses shall include the reasonable compensation,
disbursements and expenses of the Trustee’s agents and counsel.


 


The Issuer and the
Guarantors, jointly and severally, shall indemnify the Trustee against any and
all losses, liabilities or expenses (including reasonable attorneys’ fees)
incurred by it arising out of or in connection with the acceptance or
administration of its duties under this Indenture, including the costs and expenses
of enforcing this Indenture against the Issuer (including this
Section 7.7) and defending itself against any claim (whether asserted by
the Issuer or any Holder or any other Person) or liability in connection with
the exercise or performance of any of its powers or duties hereunder, except,
in each case, to the extent any such loss, liability or expense may be
attributable to its negligence, bad faith or willful misconduct.  The
Trustee shall notify the Issuer promptly of any claim for which it may seek
indemnity.  Failure by the Trustee to so notify the Issuer shall not
relieve the Issuer of its obligations hereunder.  The Issuer shall defend
the claim and the Trustee shall cooperate in the defense.  The Trustee may
have separate counsel and the Issuer shall pay the reasonable fees and expenses
of such counsel.  The Issuer need not pay for any settlement made without
their consent, which consent shall not be unreasonably withheld.


 


The obligations of the
Issuer under this Section 7.7 shall survive the satisfaction and discharge
of this Indenture.


 


To secure the Issuer’s
payment obligations in this Section 7.7, the Trustee shall have a Lien
prior to the Notes on all money or property held or collected by the Trustee,
except that held in trust to pay principal and interest on particular
Notes.  Such Lien shall survive the satisfaction and discharge of this
Indenture.


 


When the Trustee incurs
expenses or renders services after an Event of Default specified in
Sections 6.1(9) or 6.1(10) hereof occurs, the expenses and the


 


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compensation for the services (including the fees and
expenses of its agents and counsel) are intended to constitute expenses of
administration under any Bankruptcy Law.


 


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


 


Section 7.8                                     
REPLACEMENT OF
TRUSTEE


 


A resignation or removal
of the Trustee and appointment of a successor Trustee shall become effective
only upon the successor Trustee’s acceptance of appointment as provided in this
Section 7.8.


 


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


 


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


 


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


 


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


 


(d)          
the Trustee becomes incapable of acting.


 


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


 


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 then outstanding Notes may petition any court of
competent jurisdiction (not at the expense of the Trustee) for the appointment
of a successor Trustee.


 


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


 


A successor Trustee shall
deliver a written acceptance of its appointment to the retiring Trustee and to
the Issuer.  Thereupon, the resignation or removal of the retiring Trustee
shall become effective, and the successor Trustee shall have all the rights,
powers and duties of the Trustee under this Indenture and the Intercreditor
Agreement.


 


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The successor Trustee shall mail a notice of its
succession to Holders.  The retiring Trustee shall promptly transfer all
property held by it as Trustee to the successor Trustee; provided all sums
owing to the Trustee hereunder have been paid and subject to the Lien provided
for in Section 7.7 hereof.  Notwithstanding replacement of the
Trustee pursuant to this Section 7.8, the Issuer’s obligations under
Section 7.7 hereof shall continue for the benefit of the retiring Trustee.


 


Section 7.9                                     
SUCCESSOR TRUSTEE BY
MERGER, ETC.


 


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


 


Section 7.10                               
ELIGIBILITY;
DISQUALIFICATION


 


There shall at all times
be a Trustee hereunder that is a corporation or trust company (or a member of a
bank holding company) organized and doing business under the laws of the United
States of America or of any state thereof that is authorized under such laws to
exercise corporate trustee power, that is subject to supervision or examination
by Federal or state authorities and that has (or the bank holding company of
which it is a member has) a combined capital and surplus of at least
$50,000,000 as set forth in its most recent published annual report of
condition.


 


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


 


Section 7.11                               
PREFERENTIAL
COLLECTION OF CLAIMS AGAINST ISSUER


 


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


 


ARTICLE VIII

LEGAL DEFEASANCE AND COVENANT DEFEASANCE


 


Section 8.1                                     
OPTION TO EFFECT
LEGAL DEFEASANCE OR COVENANT DEFEASANCE


 


The Issuer may, at the
option of the Issuer’s Board of Directors evidenced by a resolution set forth
in an Officers’ Certificate, elect to have either Section 8.2 or 8.3
hereof be applied to all outstanding Notes and Guarantees upon compliance with
the conditions set forth below in this Article VIII.


 


Section 8.2                                     
LEGAL DEFEASANCE 


 


Upon the Issuer’s
exercise under Section 8.1 hereof of the option applicable to this
Section 8.2, the Issuer and the Guarantors, as applicable, shall, subject
to the satisfaction of the applicable conditions set forth in Section 8.4
hereof, be deemed to have been discharged from the Issuer’s and the Guarantor’s
obligations with respect to all


 


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outstanding Notes and Guarantees, as applicable, on
the date the conditions set forth below are satisfied (hereinafter, “Legal Defeasance”).  For this
purpose, Legal Defeasance means that the Issuer shall be deemed to have paid
and discharged all amounts owed under the outstanding Notes and the Guarantors
shall be deemed to have paid and discharged the entire Indebtedness represented
by the outstanding Guarantees, which shall thereafter be deemed to be
“outstanding” only for the purposes of Section 8.5 hereof and the other
Sections of this Indenture referred to in clauses (a) and (b) of this
Section 8.2 below, and to have satisfied all the Issuer’s and the
Guarantor’s other obligations under such Notes, such Guarantees and this
Indenture (and the Trustee, on demand of and at the expense of the Issuer,
shall execute proper instruments acknowledging the same, including instruments
releasing the Collateral as security for the Notes and the Guarantees), except
for the following provisions which shall survive until otherwise terminated or
discharged hereunder:  (a) the rights of Holders to receive solely
from the trust fund described in Section 8.4 hereof, and as more fully set
forth in Section 8.4, payments in respect of the principal of, premium, if
any, and Interest (and Liquidated Damages, if any), on such Notes when such
payments are due, (b) the Issuer’s obligations with respect to such Notes
under Article II and Sections 4.2, 4.6, 4.16 and 4.18, (c) the
rights, powers, trusts, duties and immunities of the Trustee hereunder and the
Issuer’s and the Guarantors’ obligations in connection therewith and
(d) this Article VIII.  Subject to compliance with this Article VIII,
the Issuer may exercise its option under this Section 8.2 notwithstanding
the prior exercise of its option under Section 8.3 hereof.


 


Section 8.3                                     
COVENANT DEFEASANCE 


 


Upon the Issuer’s
exercise under Section 8.1 hereof of the option applicable to this
Section 8.3, subject to the satisfaction of the applicable conditions set
forth in Section 8.4 hereof, the Issuer and the Guarantors shall be
released from their respective obligations under Sections 4.3, 4.4, 4.5,
4.7, 4.8, 4.9, 4.10, 4.11, 4.12, 4.13, 4.14, 4.15, 4.17, 4.19, 4.20, 4.21 and
4.22 and Article V hereof on and after the date the conditions set forth below
are satisfied (hereinafter, “Covenant
Defeasance”), and the Notes and the Guarantees shall thereafter be
deemed not “outstanding” for the purposes of any direction, waiver, consent or
declaration or act of Holders (and the consequences of any thereof) in
connection with such covenants, but shall continue to be deemed “outstanding”
for all other purposes hereunder (it being understood that such Notes shall not
be deemed outstanding for accounting purposes).  For this purpose,
Covenant Defeasance means that, with respect to the outstanding Notes and
Guarantees, the Issuer and the Guarantors may omit to comply with and shall
have no liability in respect of any term, condition or limitation set forth in
any such covenant, whether directly or indirectly, by reason of any reference
elsewhere herein to any such covenant or by reason of any reference in any such
covenant to any other provision herein or in any other document and such
omission to comply shall not constitute a Default or an Event of Default under
Section 6.1 hereof, but, except as specified above, the remainder of this
Indenture and such Notes and Guarantees shall be unaffected thereby.  In
addition, upon the Issuer’s exercise under Section 8.1 hereof of the
option applicable to this Section 8.3, subject to the satisfaction of the
applicable conditions set forth in Section 8.4 hereof, (x)
Sections 6.1(3) through 6.1(8) hereof shall not constitute Events of
Default to the extent such events occur thereafter and (y) Sections 6.1(9)
and 6.1(l0) hereof shall not constitute


 


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an Event of Default to the extent they occur after the
91st day following the occurrence of the Issuer’s exercise of Covenant
Defeasance; provided, however,
that for all other purposes as set forth herein, such Covenant Defeasance
provisions shall be effective.


 


Section 8.4                                     
CONDITIONS TO LEGAL
OR COVENANT DEFEASANCE


 


The following shall be
the conditions to the application of either Section 8.2 or 8.3 hereof to
the outstanding Notes:


 


(a)          
in the case of an election under Section 8.2 or 8.3 hereof, the Issuer
must irrevocably deposit with the Trustee, in trust, for the benefit of Holders
of the Notes, U.S. legal tender, U.S. Government Obligations or a combination
thereof, in amounts that will be sufficient, in the written opinion of a
nationally recognized firm of independent public accountants, to pay the principal
of and premium, if any, and Interest and Liquidated Damages, if any, on the
Notes on the stated date for payment or any redemption date thereof (and the
Issuer must specify whether the Notes are being defeased to Stated Maturity or
a particular redemption date), and the Trustee must have, for the benefit of
Holders of the Notes, a valid, perfected, exclusive security interest in the
trust; 


 


(b)          
in the case of an election under Section 8.2 hereof, the Issuer must
deliver to the Trustee an Opinion of Counsel reasonably satisfactory to the
Trustee confirming that: 


 


(1)          
the Issuer has received from, or there has been published by the Internal
Revenue Service, a ruling, or 


 


(2)          
since the date of this Indenture, there has been a change in the applicable
Federal income tax law, 


 


in either case to the effect that Holders of Notes
will not recognize income, gain or loss for Federal income tax purposes as a
result of such Legal Defeasance and will be subject to Federal income tax on
the same amounts, in the same manner and at the same times as would have been
the case if such Legal Defeasance had not occurred; 


 


(c)          
in the case of an election under Section 8.3 hereof, the Issuer must
deliver to the Trustee an Opinion of Counsel reasonably satisfactory to the
Trustee confirming that Holders of Notes will not recognize income, gain or
loss for Federal income tax purposes as a result of such Covenant Defeasance
and will be subject to Federal income tax on the same amounts, in the same
manner and at the same times as would have been the case if such Covenant had
not occurred; 


 


(d)          
in the case of an election under Section 8.2 or 8.3 hereof, no Default or
Event of Default shall have occurred and be continuing on the date of the
deposit (other than a Default or Event of Default resulting from the borrowing
of funds to be applied to such deposit); 


 


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(e)          
in the case of an election under Section 8.2 hereof, no Event of Default
relating to bankruptcy or insolvency may occur at any time from the date of the
deposit to the 91st calendar day thereafter (it being understood
that the condition shall not be deemed satisfied until the expiration of such
period);


 


(f)           
in the case of an election under Section 8.2 or 8.3 hereof, the Legal
Defeasance or Covenant Defeasance, as applicable, shall not result in a breach
or violation of, or constitute a default under, any other material agreement or
instrument (other than this Indenture) to which the Issuer, any of the
Guarantors or any of the Subsidiaries is a party or by which the Issuer, any of
the Guarantors or any of the Subsidiaries is bound;


 


(g)          
in the case of an election under Section 8.2 or 8.3 hereof, the Issuer
must deliver to the Trustee an Officers’ Certificate stating that the deposit
was not made by the Issuer with the intent to hinder, delay or defraud any
other of the Issuer’s creditors; and


 


(h)          
in the case of an election under Section 8.2 or 8.3 hereof, the Issuer must
deliver to the Trustee an Officers’ Certificate confirming the satisfaction of
conditions in clauses (a) through (g) above, and an Opinion of Counsel
confirming the satisfaction of the conditions in clauses (a) (with respect
to the validity and perfection of the security interest), (b), (c), (e) and (f)
above.


 


Legal Defeasance and
Covenant Defeasance shall be deemed to occur on the date all of the applicable
conditions set forth in this Section 8.4 are satisfied.


 


	
  Section 8.5

  	
  DEPOSITED MONEY AND
  GOVERNMENT SECURITIES TO BE HELD IN TRUST; OTHER MISCELLANEOUS PROVISIONS

  



 


Subject to
Section 8.6 hereof, all money and U.S. Government Obligations (including
the proceeds thereof) deposited with the Trustee (or other qualifying trustee,
collectively for purposes of this Section 8.5, the “Trustee”) pursuant to Section 8.4
hereof in respect of the outstanding Notes shall be held in trust and applied
by the Trustee, in accordance with the provisions of such Notes and this
Indenture, to the payment, either directly or through any Paying Agent
(including the Issuer or one of its subsidiaries acting as Paying Agent) as the
Trustee may determine, to the Holders of such Notes of all sums due and to
become due thereon in respect of principal, premium, if any, and Interest (and
Liquidated Damages, if any), but such money need not be segregated from other
funds except to the extent required by law; provided,
however, that any trust account established pursuant to this Article
VIII shall not constitute Collateral.  


 


The Issuer and the
Guarantors, jointly and severally, shall pay and indemnify the Trustee against
any tax, fee or other charge imposed on or assessed against the cash or U.S.
Government Obligations deposited pursuant to Section 8.4 hereof or the
principal and interest received in respect thereof, other than any such tax,
fee or other charge which by law is for the account of the Holders.


 


Anything in this Article
VIII to the contrary notwithstanding, the Trustee shall deliver or pay to the
Issuer from time to time upon the request of the Issuer any money or U.S.
Government Obligations held by it as provided in Section 8.4 hereof


 


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which, in the opinion of a firm of independent public
accountants nationally recognized in the United States expressed in a written
certification thereof delivered to the Trustee  (not at the Trustee’s
expense)(which may be the opinion delivered under Section 8.4(a) hereof),
are in excess of the amount thereof that would then be required to be deposited
to effect an equivalent Legal Defeasance or Covenant Defeasance.


 


Section 8.6                                     
REPAYMENT TO ISSUER


 


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


 


Section 8.7                                     
REINSTATEMENT


 


If the Trustee or Paying
Agent is unable to apply any United States legal tender or U.S. Government
Obligations in accordance with Section 8.2 or 8.3 hereof, as the case may
be, by reason of any order directing the repayment of the deposited money to
the Issuer or otherwise making the deposit unavailable to make payments under
the Notes when due, or if any court enters an order avoiding the deposit of
money with the Trustee or Paying Agent or otherwise requires the payment of the
money so deposited to the Issuer or to a fund for the benefit of the Issuer’s
creditors, then (so long as the insufficiency exists or the order remains in
effect) the Issuer’s and the Guarantors’ obligations under this Indenture, the
Notes, the Guarantees and the Collateral Agreements shall be revived and
reinstated as though no deposit had occurred pursuant to Section 8.3 or
8.4 hereof until such time as the Trustee or Paying Agent is permitted to apply
all such money in accordance with Section 8.3 or 8.4 hereof, as the case
may be; provided, however, that,
if the Issuer makes any payment of principal of or premium, if any, or Interest
(or Liquidated Damages, if any) on any Note following the reinstatement of the
Issuer’s obligations, the Issuer shall be subrogated to the rights of the
Holders of such Notes to receive such payment from the money held by the
Trustee or Paying Agent.


 


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Section 8.8                                     
SATISFACTION AND
DISCHARGE


 


The Issuer may terminate
its obligations and the obligations of the Guarantors under this Indenture, the
Notes and the Guarantees (except as described below) when: 


 


(a)                                 
all the Notes
previously authenticated and delivered (except lost, stolen or destroyed Notes
which have been replaced and Notes for whose payment money 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 or a Guarantor) have
been delivered to the Trustee for cancellation, or 


 


(b)                                                                                
(1)          
all Notes have been called for redemption pursuant to Section 3.7 by
mailing to Holders a notice of redemption or all Notes otherwise have become
due and payable, 


 


(2)          
the Issuer has irrevocably deposited or caused to be irrevocably deposited with
the Trustee U.S. legal tender, U.S. Government Obligations or a combination
thereof in an amount sufficient to pay and discharge the entire Indebtedness on
the Notes not theretofore delivered to the Trustee for cancellation, for
principal of and Interest and Liquidated Damages, if any, on the Notes to the
date of such redemption, together with irrevocable instructions from the Issuer
directing the Trustee to apply such funds to the payment thereof at such
redemption, 


 


(3)          
each of the Issuer and the Guarantors has paid all other sums payable by it
under this Indenture, the Notes and the Guarantees, 


 


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


 


(5)          
such deposit shall not result in a breach or violation of, or constitute a
default under, any material agreement or instrument (other than this Indenture)
to which the Issuer, any of the Guarantors or any of the Subsidiaries is a
party or by which the Issuer, any of the Guarantors or any of the Subsidiaries
is bound, and 


 


(6)          
the Issuer shall have delivered to the Trustee an Officers’ Certificate and an
Opinion of Counsel confirming the satisfaction of all conditions set forth in
clauses (1) through (5) above.


 


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ARTICLE IX

AMENDMENT, SUPPLEMENT AND WAIVER


 


Section 9.1                                     
WITH CONSENT OF
HOLDERS OF A MAJORITY


 


Except as expressly stated
otherwise in Section 9.2 or 9.3, and subject to Sections 6.4 and 6.7
hereof, the Issuer, the Guarantors and the Trustee may amend, supplement or
otherwise modify this Indenture, the Notes, the Guarantees, the Intercreditor
Agreement (subject to any required approval of the lenders under the Credit
Agreement party thereto) and the Collateral Agreements, with the consent of the
Holders of a majority in aggregate principal amount of the Notes then
outstanding (including, without limitation, consents obtained in connection
with a purchase of, or tender offer or exchange offer for, the Notes), and,
subject to Sections 6.4 and 6.7 hereof, any existing Default or Event of
Default (other than a Default or Event of Default in the payment of the
principal of or premium, if any, or Interest on the Notes, except a payment
default resulting from an acceleration that has been rescinded) or compliance
with any provision of this Indenture, the Notes, the Guarantees, the
Intercreditor Agreement (subject to any required approval of the lenders under
the Credit Agreement party thereto) and the Collateral Agreements may be waived
with the consent of the Holders of a majority in aggregate principal amount of
the Notes then outstanding (including, without limitation, consents obtained in
connection with a purchase of, or tender offer or exchange offer for, the
Notes).


 


It is understood that,
except as expressly stated otherwise in Section 9.2 or 9.3,
Sections 4.13, 4.14 and 4.22 hereof may be amended, waived or modified in
accordance with this Section 9.1.


 


Section 9.2                                     
WITH CONSENT OF ALL
AFFECTED HOLDERS OF NOTES OR A SUPERMAJORITY


 


(a) Without the
consent of the Holder of each outstanding Note affected, an amendment,
supplement, modification or waiver may not (with respect to Notes held by a
non-consenting Holder): 


 


(1)          
reduce the principal amount of Notes the Holders of which must consent to an
amendment, supplement, modification or waiver, 


 


(2)          
change the Stated Maturity on any Note, 


 


(3)          
reduce the principal of or any premium (including redemption premium but not
including any redemption premium relating to Sections 4.13, 4.14 and 4.22)
on any Note, 


 


(4)          
reduce the rate of or change the time for payment of Interest (or Liquidated
Damages, if any), including default interest, on any Note, 


 


(5)          
waive a Default or Event of Default in the payment of principal of or premium,
if any, or Interest (or Liquidated Damages, if any) on


 


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any Note (except a rescission of acceleration of the
Notes by the Holders of a majority in aggregate principal amount of the Notes
and a waiver of the payment default that resulted from such acceleration), 


 


(6)          
waive any redemption payment with respect to any Note (other than provisions
relating to or payments required by Sections 4.13, 4.14 and 4.22,


 


(7)          
after the corresponding Asset Sale or Change of Control has occurred, reduce
the Change of Control Purchase Price or the Asset Sale Offer Price or alter any
other provisions with respect to the redemption of the Notes required by
Sections 4.13, 4.14 and 4.22,


 


(8)          
change the coin or currency in which, the principal of or premium, if any, or
Interest (or Liquidated Damages, if any) on any Note is payable, 


 


(9)          
impair the right to institute suit for the enforcement of payment of the
principal of or premium, if any, or Interest (or Liquidated Damages, if any) on
any Note on or after the Stated Maturity (or on or after the Redemption Date), 


 


(10)        
make any change in the provisions of this Indenture relating to waivers of past
Defaults with respect to, or the rights of Holders to receive, scheduled
payments of principal of or premium, if any, or Interest (or Liquidated
Damages, if any) on the Notes, 


 


(11)        
modify or change any provision of this Indenture affecting the contractual
ranking of the Notes or any Guarantee in a manner adverse to the Holders of the
Notes, 


 


(12)        
release any Guarantor from any of its obligations under its Guarantee or this
Indenture other than in compliance with this Indenture, or 


 


(13)        
make any changes in the foregoing amendment, supplement and waiver provisions. 


 


(b) Notwithstanding
the foregoing and subject to the Intercreditor Agreement, no portion of the
Collateral may be released from the Lien of the Collateral Agreements (except
in accordance with the provisions of this Indenture and the Collateral
Agreements), and none of the Collateral Agreements or the provisions of this
Indenture relating to the Collateral may be amended or supplemented, and the
rights of any Holders thereunder may not be waived or modified, without, in
each case, the consent of the Holders of at least 662/3%
in aggregate principal amount of the Notes then outstanding.


 


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Section 9.3                                     
WITHOUT CONSENT OF
HOLDERS OF NOTES


 


Notwithstanding
Section 9.1 or 9.2, without the consent of the Holders, the Issuer, the
Guarantors and the Trustee may amend, modify or supplement this Indenture, the
Notes, the Guarantees, the Intercreditor Agreement and the Collateral
Agreements:


 


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


 


(2)          
to provide for uncertificated Notes in addition to or in place of certificated
Notes,


 


(3)          
to provide for the assumption of any of the Issuer’s or the Guarantors’
obligations to Holders in the case of a merger or consolidation or a sale of
all or substantially all of the Issuer’s assets in accordance with this
Indenture,


 


(4)          
to evidence the release of any Guarantor permitted to be released under the
terms of this Indenture or to evidence the addition of any new Guarantor,


 


(5)          
to comply with requirements of the Commission in order to effect or maintain
the qualification of this Indenture under the Trust Indenture Act,


 


(6)          
to comply with the provisions of DTC or the Trustee with respect to the
provisions of this Indenture and the Notes relating to transfers and exchanges
of Notes or beneficial interests therein,


 


(7)          
to make any change that would provide any additional rights or benefits to the
Holders or that does not adversely affect the rights of any Holder of Notes
under this Indenture, the Notes, the Guarantees, the Intercreditor Agreement,
the Collateral Agreements or the Registration Rights Agreement, or


 


(8)          
to provide for the issuance of Additional Notes in accordance with the
limitations set forth in this Indenture as of the date thereof, including
Section 4.7. 


 


Section 9.4                                     
CONSENT PAYMENT;
SUPPLEMENTAL INDENTURES


 


In connection with any
amendment, supplement, modification or waiver under this Article IX, the Issuer
may, but shall not be obligated to, offer to any Holder who consents to such
amendment, supplement or waiver, or to all Holders, consideration for such
Holder’s consent to such amendment, supplement, modification or waiver.


 


It shall not be necessary
for the consent of the Holders under Section 9.1 or 9.2 to approve the
particular form of any proposed amendment or waiver, but it shall be sufficient
if such consent approves the substance thereof.


 


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The Issuer may not sign
an amendment or supplemental indenture until its Board of Directors approves
it.


 


After an amendment,
supplement, modification or waiver under Section 9.1 or 9.2 becomes
effective, the Issuer shall mail to the Holders affected thereby a notice
briefly describing the amendment, supplement or waiver.  Any failure of
the Issuer to mail such notice, or any defect therein, shall not, however, in
any way impair or affect the validity of any such amended or supplemental
Indenture or waiver.


 


Section 9.5                                     
REVOCATION AND EFFECT
OF CONSENTS


 


Until an amendment,
supplement or waiver becomes effective (as determined by the Issuer and which
may be prior to any such amendment, supplement or waiver becoming operative), a
consent to it by a Holder is a continuing consent by the Holder and every
subsequent Holder of a Note or a portion of a Note that evidences the same
Indebtedness as the consenting Holder’s Note, even if notation of the consent
is not made on any Note.  However, any such Holder or subsequent Holder
may revoke the consent as to its Note if the Trustee receives written notice of
revocation before the date the waiver, supplement or amendment becomes
effective (as determined by the Issuer and which may be prior to any such
amendment, supplement or waiver becoming operative).


 


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, which
record date shall be the date so fixed by the Issuer notwithstanding the provisions
of the TIA.  If a record date is fixed, then notwithstanding the last
sentence of the immediately preceding paragraph, those Persons who were Holders
at such record date, and only those Persons (or their duly designated proxies),
shall be entitled to revoke any consent previously given, whether or not such
Persons continue to be Holders after such record date.


 


After an amendment,
supplement or waiver becomes effective, it shall bind every Holder unless it
makes a change described in any of paragraphs (1) through (13) of
Section 9.2 hereof, in which case, the amendment, supplement or waiver
shall bind only each Holder who has consented to it and every subsequent Holder
of a Note or a portion of a Note that evidences the same Indebtedness as the consenting
Holder’s Note; provided, that any
such waiver shall not impair or affect the right of any Holder to receive
payment of principal and premium of and Interest (and Liquidated Damages, if
any) on a Note, on or after the respective dates set for such amounts to become
due and payable expressed in such Note, or to bring suit for the enforcement of
any such payment on or after such respective dates.


 


Section 9.6                                     
NOTATION ON OR
EXCHANGE OF NOTES


 


The Trustee may place an
appropriate notation about an amendment, supplement or waiver on any Note
thereafter authenticated.  The Issuer in exchange for


 


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all Notes may issue and the Trustee shall authenticate
new Notes that reflect the amendment, supplement or waiver.


 


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


 


Section 9.7                                     
TRUSTEE TO SIGN
AMENDMENTS, ETC.


 


Upon the request of the
Issuer accompanied by a resolution of its Board of Directors authorizing the
execution of any such amended or supplemental indenture, and upon the filing
with the Trustee of evidence satisfactory to the Trustee of the consent of the
Holders as aforesaid, and upon receipt by the Trustee of the documents
described in this Section 9.7, the Trustee shall join with the Issuer in
the execution of such amended or supplemental indenture unless such amended or
supplemental indenture adversely affects the Trustee’s own rights, duties or
immunities under this Indenture or otherwise, in which case the Trustee may in
its discretion, but shall not be obligated to, enter into such amended or
supplemental indenture.  In executing any amendment or supplemental indenture,
the Trustee shall be entitled to receive indemnity reasonably satisfactory to
it and to receive and (subject to Section 7.1 hereof) shall be fully
protected in relying upon, an Officers’ Certificate and an Opinion of Counsel
stating that the execution of such amendment or supplemental indenture is
authorized or permitted by this Indenture.


 


Section 9.8                                     
COMPLIANCE WITH TRUST
INDENTURE ACT


 


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


 


ARTICLE X

COLLATERAL AND SECURITY


 


Section 10.1                               
COLLATERAL
AGREEMENTS; SECURITY INTERESTS.


 


(a)          
The due and punctual payment of the principal of and premium, if any, and
Interest (and Liquidated Damages, if any) (including Interest on the overdue
principal of, and premium on, the Notes and Interest (to the extent permitted
by law) on overdue Interest, if any, on the Notes) on the Notes when and as the
same shall be due and payable, whether on an Interest Payment Date, at
maturity, by acceleration, repurchase, redemption or otherwise, and performance
of all other Obligations under this Indenture, the Notes, the Collateral
Agreements and the Registration Rights Agreement, shall be secured as provided
in the Collateral Agreements.


 


(b)          
After the Issue Date, the Issuer and the Guarantors shall, and shall cause each
of the Subsidiaries to, use commercially reasonable efforts to grant a
perfected security interest in all of the Issuer’s and the Subsidiaries’
assets, including assets acquired after the Issue Date in accordance with the
Collateral Agreements, but in any event excluding the Excluded Assets.


 


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(c)          
The Issuer and the Guarantors shall, and shall cause each of the Subsidiaries
to, do or cause to be done all such acts and things as may be reasonably
necessary or proper, or as may be required by the provisions of the Collateral
Agreements, to assure and confirm to the Trustee the security interest in the
Collateral contemplated hereby and by the Collateral Agreements, as from time
to time constituted, so as to render the same available for the security and
benefit of this Indenture and of the Notes secured hereby, according to the
intent and purposes herein and therein expressed, including (1) using all
commercially reasonable efforts to obtain customary consents and waivers from
landlords of premises where any of the Collateral is located, and (2) taking
all commercially reasonable efforts to grant a perfected Lien on all real
property owned by the Issuer and the Subsidiaries and to provide customary
title insurance for the benefit of the Trustee with respect thereto, including,
without limitation, commercially reasonable efforts to cause the removal of
record of all existing monetary encumbrances (other than as provided in the
Collateral Agreements) such that the Collateral Agreements shall constitute a
first priority Lien on all such real property, subject to Liens permitted by
the Collateral Agreements.  The Issuer and the Guarantors shall, and shall
cause each of the Subsidiaries to, take any and all actions required to cause
the Collateral Agreements to create and maintain, as security for the Obligations
under this Indenture, the Notes, the Collateral Agreements and the Registration
Rights Agreement, valid and enforceable, perfected (except as expressly
provided herein or therein) Liens in and on all the Collateral, in favor of the
Trustee, superior to and prior to the rights of all third Persons (other than
holders of Purchase Money Indebtedness that was incurred in accordance with the
provisions of Section 4.7 hereof), and subject to no other Liens, other
than as provided herein and therein; provided,
that the Trustee’s Lien securing the Collateral may be subordinated pursuant to
the terms of the Intercreditor Agreement to a Lien securing Indebtedness
outstanding pursuant to Section 4.7 hereof, but only to the extent
provided in the Intercreditor Agreement.


 


(d)          
The Issuer and each of the Guarantors represents and warrants and covenants
that it (or the Subsidiaries) has executed and delivered, filed and recorded
and/or shall execute and deliver, file and record, all instruments and
documents, and has done or shall do or cause to be done all such acts and other
things as are necessary to subject the Collateral to the Lien of Trustee under
the Collateral Agreements.  The Issuer (or the Subsidiaries) shall execute
and deliver, file and record all instruments and do all acts and other things
as may be reasonably necessary to perfect, maintain and protect the security
interests created by the Collateral Agreements and shall pay all filing,
recording, mortgage or other taxes or fees incidental thereto.


 


(e)          
The security interests in the Collateral created by the Collateral Agreements
as now or hereafter in effect shall be held by the Trustee for the equal and
ratable benefit and security of the Notes without preference, priority or
distinction of any thereof over any other by reason, or difference in time, of
issuance, sale or otherwise, and for the enforcement of the payment of
principal of and premium, if any, and Interest (and Liquidated Damages, if any)
on the Notes in accordance with their terms.


 


(f)           
Each Holder, by its acceptance of a Note, consents and agrees to the terms of
the Collateral Agreements and the Intercreditor Agreement (including,


 


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without limitation, the provisions providing for
foreclosure and release of the Collateral) as the same may be in effect or may
be amended from time to time in accordance with their terms and authorizes and
directs the Trustee to enter into the Collateral Agreements and to perform its
obligations and exercise its rights thereunder in accordance therewith. 
The Issuer initially appoints the Trustee as the “Secured Party” and/or Trustee
under the Collateral Agreements.  Any successor Trustee will act as the
“Secured Party” and/or Trustee under the Collateral Agreements or appoint
another Person to act in such capacity.


 


Section 10.2                               
FURTHER ASSURANCES
AND SECURITY.


 


The Issuer and each of
the Guarantors represents and warrants that at the time the Collateral
Agreements and this Indenture are executed, the Issuer (or the Subsidiaries)
(a) shall have full right, power and lawful authority to grant, bargain,
sell, release, convey, hypothecate, assign, mortgage, pledge, transfer and
confirm, absolutely, the Collateral, in the manner and form done, or intended
to be done, in the Collateral Agreements, free and clear of all Liens, except
for Permitted Liens, and will forever warrant and defend the title to the same
against the claims of all Persons whatsoever, subject to the terms of the
Intercreditor Agreement; (b) shall execute, acknowledge and deliver to the
Trustee, at the Issuer’s expense, at any time and from time to time such
further assignments, transfer, assurances or other instruments as may be
necessary or as may be reasonably required by the Trustee to effectuate the
terms of this Indenture or the Collateral Agreements; and (c) shall at any
time and from time to time do or cause to be done all such acts and things as
may be necessary or proper, or as may be required by the Trustee, to assure and
confirm to the Trustee the security interest in the Collateral contemplated
hereby and by the Collateral Agreements, subject to the terms of the
Intercreditor Agreement.


 


Section 10.3                               
OPINIONS.


 


(a)          
The Issuer shall furnish to the Trustee promptly after the recording or filing,
or re-recording or re-filing of the Collateral Agreements and other security
filings, an Opinion of Counsel (who may be counsel for the Issuer) stating that
in the opinion of such counsel the Collateral Agreements and other security
filings have been properly recorded, filed, re-recorded or re-filed so as to
make effective and perfect the security interest intended to be created thereby
and reciting the details of such action.


 


(b)          
The Issuer shall furnish to the Trustee within three months after each
anniversary of the Issue Date, an Opinion of Counsel, dated as of such date,
stating either that (i) in the opinion of such counsel, all action has
been taken with respect to the recording, registering, filing, re-recording,
re-registering and refiling of all supplemental indentures, financing
statements, continuation statements or other instruments of further assurance
as is necessary to maintain the Liens of the Collateral Agreements, subject to
the terms of the Intercreditor Agreement, and reciting the details of such
action or (ii) in the opinion of such counsel, no such action is necessary
to maintain such Liens.


 


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(c)          
All Opinions of Counsel required by this Section 10.3 may contain
qualifications, assumptions, exceptions and limitations as are appropriate for
similar opinions relating to the nature of the Collateral and as are reasonably
acceptable to the Trustee.


 


Section 10.4                               
RELEASE OF
COLLATERAL.


 


(a)          
Upon the full and final payment and performance of all the Issuer’s and the
Guarantors’ Obligations under this Indenture, the Notes and the Guarantees, the
Collateral Agreements will terminate, and the Liens granted thereunder on the
Collateral shall be released. 


 


(b)          
In addition, the Trustee shall release from the Lien created by this Indenture
and the Collateral Agreements:


 


(1)          
Collateral that is sold, transferred, disbursed or otherwise disposed of in
accordance with the provisions of this Indenture and the Collateral Agreements
and the Intercreditor Agreement; provided
that the Trustee shall not release such liens in the event that the transaction
is subject to Section 5.1 and provided
further that all products and proceeds of the Collateral so sold,
transferred, disbursed or otherwise disposed of shall continue to constitute
Collateral; 


 


(2)          
Collateral that is released with the consent of the Holders of not less than 662/3%
of the aggregate principal amount of the outstanding Notes as provided under
Article IX;


 


(3)          
all Collateral upon defeasance of this Indenture in accordance with Section 8.2
or 8.3 or discharge of this Indenture in accordance with Section 8.8; provided that the funds deposited with the
Trustee, in trust, for the benefit of the Holders as required by such
provisions shall not be released; and 


 


(4)          
Collateral of a Guarantor whose Guarantee is released in accordance with this
Indenture and the Collateral Agreements; 


 


provided, in each case, that the Trustee has
received all documentation required by the TIA in connection therewith. 
Upon compliance with the above provisions, the Trustee shall execute, deliver
or acknowledge any necessary or proper instruments of termination, satisfaction
or release to evidence the release of any Collateral permitted to be released
pursuant to this Indenture or the Collateral Agreements.


 


(b)          
The release of any Collateral from the terms of the Collateral Agreements shall
not be deemed to impair the security under this Indenture in contravention of
the provisions hereof and of the Collateral Agreements if and to the extent the
Collateral is released pursuant to the terms of this Indenture and the Collateral
Agreements.


 


(c)          
For purposes of Section 10.4(a) hereof, any certificate or opinion
required by TIA § 314(d) may be made by an Officer of the Issuer,
except in cases where


 


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TIA § 314(d) requires that such certificate
or opinion be made by an independent person, which person shall be an
independent engineer, appraiser or other expert selected or approved by the
Trustee in the exercise of reasonable care.  A person is “independent” if
such person (i) is in fact independent, (ii) does not have any direct
financial interest or any material indirect financial interest in the Issuer or
in any Affiliate of the Issuer and (iii) is not an officer, employee,
promoter, underwriter, trustee, partner or director or person performing
similar functions to any of the foregoing for the Issuer.  The Trustee
shall be entitled to receive and conclusively rely upon a certificate provided
by any such person confirming that such person is independent within the
foregoing definition.  


 


(d)          
Notwithstanding anything contained in this Indenture to the contrary,
(i) the proviso of Section 10.4(a) of this Indenture will not be
applicable to any release or withdrawal of inventory, receivables and cash from
the Issuer’s deposit accounts in the ordinary course of the Issuer’s business
pursuant to the terms of the Collateral Agreements and (ii) the fair value
of inventory, receivables and cash from the Issuer’s deposit accounts released
pursuant to this Section 10.4 need not be considered in determining whether
the aggregate fair value of inventory, receivables and cash from the Issuer’s
deposit accounts released in any calendar year exceeds the 10% threshold
specified in Section 314(d)(1) of the TIA.


 


Section 10.5                               
CERTIFICATES OF THE
ISSUER.


 


The Issuer shall furnish
to the Trustee, prior to each proposed release of Collateral, all documents
required by TIA § 314(d).  The Trustee may, to the extent permitted
by Sections 7.1 and 7.2 hereof, accept as conclusive evidence of compliance
with the foregoing provisions the appropriate statements contained in such
instruments.  Any certificate or opinion required by TIA
§ 314(d) may be made by an Officer of the Issuer, except in cases
where TIA § 314(d) requires that such certificate or opinion be made
by an independent engineer, appraiser or other expert within the meaning of TIA
§ 314(d).


 


	
  Section 10.6

  	
  AUTHORIZATION OF
  ACTIONS TO BE TAKEN BY THE TRUSTEE UNDER THE COLLATERAL AGREEMENTS.

  



 


Subject to the terms of
the Intercreditor Agreement, the Trustee may, in its sole discretion and
without the consent of the Holders, on behalf of the Holders, take all actions
it deems reasonably necessary or appropriate in order to (a) enforce any
of the terms of the Collateral Agreements and (b) collect and receive any
and all amounts payable in respect of the Obligations of the Issuer and the
Guarantors hereunder and under the Notes, the Collateral Agreements and the
Registration Rights Agreement.  Subject to the terms of the Intercreditor
Agreement, and to the extent permitted by this Indenture or the Collateral
Agreements, the Trustee shall have the power to institute and to maintain such
suits and proceedings as it may reasonably deem expedient to prevent any
impairment of the Collateral by any acts that may be unlawful or in violation
of the Collateral Agreements or this Indenture, and such suits and proceedings
as the Trustee may reasonably deem expedient to preserve or protect its
interest and the interests of the Holders in the Collateral (including power to
institute and maintain suits or proceedings


 


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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 security interest
hereunder or be prejudicial to the interests of the Holders or the Trustee).


 


	
  Section 10.7

  	
  AUTHORIZATION OF
  RECEIPT OF FUNDS BY THE TRUSTEE UNDER THE COLLATERAL AGREEMENTS.

  



 


The Trustee is authorized
to receive any funds for the benefit of the Holders distributed under the
Collateral Agreements, and to make further distributions of such funds to the
Holders according to the provisions of this Indenture and the Collateral
Agreements, subject to the terms of the Intercreditor Agreement.


 


ARTICLE XI

GUARANTEES


 


Section 11.1                               
GUARANTEES


 


By its execution hereof,
each of the Guarantors acknowledges and agrees that it receives substantial
benefits from the Issuer and that such party is providing its Guarantee for
good and valuable consideration, including, without limitation, such
substantial benefits and services.  Accordingly, subject to the provisions
of this Article XI, each Guarantor, including present and future Subsidiaries
other than any Excluded Foreign Subsidiaries, jointly and severally,
irrevocably hereby unconditionally guarantees on a senior secured basis to each
Holder of a Note authenticated and delivered by the Trustee and its successors
and assigns that:  (i) the principal of and premium, if any, and
Interest and Liquidated Damages, if any, on the Notes shall be duly and
punctually paid in full when due, whether at maturity, by acceleration, call
for redemption, upon a Change of Control Offer, an Asset Sale Offer, an Excess
Cash Flow Offer or otherwise, and interest on overdue principal of and premium,
if any, Liquidated Damages, if any, and (to the extent permitted by law)
interest on any Interest, if any, on the Notes and all other obligations of the
Issuer to the Holders or the Trustee under the Notes, this Indenture, the
Collateral Agreements and the Registration Rights Agreement (including fees,
expenses or other) shall be promptly paid in full or performed, all in
accordance with the terms hereof; and (ii) in case of any extension of
time of payment or renewal of any Notes or any of such other obligations or
under the Notes, the Collateral Agreements or Registration Rights Agreement,
the same shall be promptly paid in full when due or performed in accordance
with the terms of the extension or renewal, whether at stated maturity, by
acceleration, call for redemption, upon a Change of Control, an Asset Sale
Offer, an Excess Cash Flow Offer, or otherwise, subject, however, in the case
of clauses (i) and (ii) above, to the limitations set forth in
Section 11.6 hereof (collectively, the “Guarantee
Obligations”).


 


Subject to the provisions
of this Article XI, each Guarantor hereby agrees that its Guarantee hereunder
shall be unconditional, irrespective of the validity, regularity or
enforceability of the Notes, this Indenture, the Collateral Agreements, the
Registration Rights Agreement or the absence of any action to enforce the same,
any waiver or


 


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consent by any Holder with respect to any thereof, any
releases of the Collateral, the entry of any judgment against the Issuer, any
action to enforce the same or any other circumstance which might otherwise
constitute a legal or equitable discharge or defense of a Guarantor.  Each
Guarantor hereby waives and relinquishes with respect to its Guarantee
Obligations: (a) any right to require the Trustee, the Holders or the
Issuer (each, a “Benefited Party”)
to proceed against the Issuer, the Subsidiaries or any other Person or to proceed
against or exhaust any security held by a Benefited Party at any time or to
pursue any other remedy in the Trustee’s power before proceeding against the
Guarantors; (b) any defense that may arise by reason of the incapacity,
lack of authority, death or disability of any other Person or Persons or the
failure of a Benefited Party to file or enforce a claim against the estate (in
administration, bankruptcy or any other proceeding) of any other Person or
Persons; (c) demand, protest and notice of any kind (except as expressly
required by this Indenture); (d) any defense based upon an election of
remedies by a Benefited Party, including but not limited to an election to
proceed against the Guarantors for reimbursement; (e) any defense based
upon any statute or rule of law which provides that the obligation of a surety
must be neither larger in amount nor in other respects more burdensome than
that of the principal; (f) any defense arising because of a Benefited
Party’s election, in any proceeding instituted under the Bankruptcy Law, of the
application of Section 1111(b)(2) of the Bankruptcy Code; and (g) any
defense based on any borrowing or grant of a security interest under
Section 364 of the Bankruptcy Code.  The Guarantors hereby covenant
that, except as otherwise provided therein, the Guarantees shall not be
discharged except by payment in full of all Guarantee Obligations, including
the principal of and premium, if any, and Interest (and Liquidated Damages, if
any) on the Notes and all other costs provided for under this Indenture or as
provided in Article VIII.


 


If any Holder or the
Trustee is required by any court or otherwise to return to either the Issuer or
the Guarantors, or any trustee or similar official acting in relation to either
the Issuer or the Guarantors, any amount paid by the Issuer or the Guarantors
to the Trustee or such Holder, the Guarantees, to the extent theretofore
discharged, shall be reinstated in full force and effect.  Each of the
Guarantors agrees that it shall not be entitled to any right of subrogation in
relation to the Holders in respect of any Guarantee Obligations hereby until
payment in full of all such obligations guaranteed hereby.  Each Guarantor
agrees that, as between it, on the one hand, and the Holders and the Trustee,
on the other hand, (x) the maturity of the obligations guaranteed hereby may be
accelerated as provided in Article VI hereof for the purposes hereof,
notwithstanding any stay, injunction or other prohibition preventing such
acceleration in respect of the Guarantee Obligations, and (y) in the event of
any acceleration of such obligations as provided in Article VI hereof, such
Guarantee Obligations (whether or not due and payable) shall forthwith become
due and payable by such Guarantor for the purpose of the Guarantee.


 


Section 11.2                               
EXECUTION AND
DELIVERY OF GUARANTEES


 


To evidence the
Guarantees set forth in Section 11.1 hereof, each of the Guarantors agrees
that a notation of the Guarantees substantially in the form included in
Exhibit A hereto shall be endorsed on each Note authenticated and
delivered by the Trustee and that a supplemental indenture substantially in the
form of Exhibit E hereto


 


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shall be executed on behalf of each of the Guarantors
by an Officer thereof in accordance with Section 11.4 hereof.


 


Each of the Guarantors
agree that the Guarantees set forth in this Article XI shall remain in full
force and effect and apply to all the Notes notwithstanding any failure to
endorse on each Note a notation of the Guarantees.


 


If an Officer whose
signature is on a Note or a notation of Guarantee no longer holds that office
at the time the Trustee authenticates the Note on which the Guarantees are
endorsed, the Guarantees shall be valid nevertheless.


 


The delivery of any Note
by the Trustee, after the authentication thereof hereunder, shall constitute
due delivery of the Guarantees set forth in this Indenture on behalf of the
Guarantors.


 


Section 11.3                               
GUARANTORS MAY
CONSOLIDATE, ETC., ON CERTAIN TERMS


 


(a)          
Nothing contained in this Indenture or in the Notes shall prevent any
consolidation or merger of any Guarantor with or into any other Guarantor or
with or into the Issuer; provided, however,
that such consolidation or merger shall otherwise comply with this
Indenture.  Upon any such consolidation or merger, the Guarantee of the
Guarantor that does not survive the consolidation or merger shall no longer be
of any force or effect.


 


(b)          
Except for a transaction in which a Guarantor is sold and its Guarantee is
released in compliance with the provisions of Section 11.5 hereof, no
Guarantor will consolidate or merge with or into (whether or not such Guarantor
is the surviving Person) another Person unless, subject to the provisions of
the following paragraph and the other provisions of this Indenture and the
Collateral Agreements, the Person formed by, resulting from or surviving any
such consolidation or merger (if other than such Guarantor)


 


(1)          
expressly assumes all the obligations of such Guarantor pursuant to a
supplemental indenture in form reasonably satisfactory to the Trustee, pursuant
to which such Person shall unconditionally guarantee, on a senior secured
basis, all of such Guarantor’s obligations under such Guarantor’s Guarantee on
the terms set forth in this Indenture, and grants a security interest in and/or
pledges the collateral owned by such Person to secure such Obligations on the
terms set forth in the Collateral Agreements, and


 


(2)          
delivers to the Trustee an Opinion of Counsel that such supplemental indenture
and Guarantee and the Collateral Agreements have been duly authorized, executed
and delivered and that each of the supplemental indenture, the Guarantee, this
Indenture and the Collateral Agreements constitutes a legal, valid and binding
and enforceable obligation of such Person, in each case subject to customary
qualifications.


 


105
















 


(c)          
In case of any such consolidation or merger and upon the assumption by the
successor corporation, by supplemental indenture, executed and delivered to the
Trustee and reasonably satisfactory in form to the Trustee, of the Guarantees
endorsed upon the Notes and the due and punctual performance of all of the
covenants and conditions of this Indenture to be performed by such Guarantor,
such successor corporation shall succeed to and be substituted for such
Guarantor with the same effect as if it had been named herein as a
Guarantor.  Such successor corporation thereupon may cause to be signed
any or all of the Guarantees to be endorsed upon all of the Notes issuable
hereunder which theretofore shall not have been signed by the Issuer and
delivered to the Trustee.  All the Guarantees so issued shall in all
respects have the same legal rank and benefit under this Indenture as the
Guarantees theretofore and thereafter issued in accordance with the terms of
this Indenture as though all of such Guarantees had been issued at the date of
the execution hereof.


 


(d)          
The Trustee, subject to the provisions of Section 12.4 hereof, shall be
entitled to receive an Officers’ Certificate as conclusive evidence that any
such consolidation or merger, and any such assumption of Guarantee Obligations,
comply with the provisions of this Section 11.3.  Such Officers’
Certificate shall comply with the provisions of Section 12.5 hereof.


 


Section 11.4                               
GUARANTEE BY FUTURE
SUBSIDIARIES


 


The Issuer shall cause
each of the Issuer’s existing and future Subsidiaries to (i) execute and
deliver to the Trustee a supplemental indenture substantially in the form of
Exhibit E hereto and a guarantee substantially in the form included in
Exhibit A hereto, pursuant to which such Subsidiary shall unconditionally
guarantee on a senior secured basis, all of the Issuer’s Obligations under the
Notes and this Indenture on the terms set forth in this Indenture,
(ii) execute a security agreement and other Collateral Agreements
necessary or reasonably requested by the Trustee to grant, and grant, the
Trustee a valid, enforceable, perfected Lien on the Collateral described
therein, and (iii) deliver to the Trustee an Opinion of Counsel that such
supplemental indenture, guarantee and Collateral Documents have been duly
authorized, executed and delivered by such Subsidiary and that each of such
documents and this Indenture, guarantee and Collateral Documents have
constitutes a legal, valid, binding and enforceable obligation of such
Subsidiary, in each case subject to customary qualifications including
exceptions for bankruptcy, fraudulent transfer and equitable principles. 
Thereafter, such Subsidiary shall be a Guarantor for all purposes of this
Indenture.


 


Section 11.5                               
RELEASE OF GUARANTORS


 


Notwithstanding
Section 11.3(b) hereof, upon the sale or disposition (including by merger
or sale or transfer of all of the Equity Interests) of a Guarantor (as an
entirety) to a Person which is not and is not required to become a Guarantor,
the designation of a Guarantor as an Unrestricted Subsidiary, or the
liquidation or dissolution of a Guarantor, which transaction is otherwise in
compliance with this Indenture (including, without limitation,
Section 4.13), such Guarantor shall be deemed released from the Issuer’s
Obligations under its Guarantee and the Collateral Agreements;


 


106
















 


provided,
however, that any
such termination shall occur only to the extent that all obligations of such
Guarantor under all of its guarantees of, and under all of its pledges of assets
or other security interests which secure, any of the Indebtedness of the Issuer
or any Indebtedness of any other of the Subsidiaries shall also terminate upon
such release, sale or transfer and none of the Equity Interests of such
Guarantor are pledged for the benefit of any holder of any of the Indebtedness
of the Issuer or any Indebtedness of any of the Subsidiaries.


 


The Trustee, subject to
the provisions of Section 12.4 hereof, shall be entitled to receive an
Officers’ Certificate as conclusive evidence that such sale or other
disposition or that such designation was made by the Issuer in accordance with
the provisions of this Indenture.  Except as provided in
Section 11.3(a) hereof, any Guarantor not released from its obligations
under its Guarantee shall remain liable for the full amount of principal of and
Interest on the Notes and for the other obligations of any Guarantor under this
Indenture as provided in this Article XI.


 


Notwithstanding the
foregoing provisions of this Article XI, (i) any Guarantor whose Guarantee
would otherwise be released pursuant to the provisions of this
Section 11.5 may elect, at its sole discretion, by written notice to the
Trustee, to maintain such Guarantee in effect notwithstanding the event or
events that otherwise would cause the release of such Guarantee (which election
to maintain such Guarantee in effect may be conditional or for a limited period
of time), and (ii) any Subsidiary of the Issuer which is not a Guarantor
may elect, at its sole discretion, by written notice to the Trustee, to become
a Guarantor (which election may be conditional or for a limited period of
time).


 


Section 11.6                               
LIMITATION OF
GUARANTOR’S LIABILITY; CERTAIN BANKRUPTCY EVENTS 


 


(a)          
Each Guarantor, and by its acceptance of Notes each Holder, hereby confirms
that it is the intention of all such parties that the Guarantee Obligation of
such Guarantor pursuant to its Guarantee not constitute a fraudulent transfer
or conveyance for purposes of any Bankruptcy Law, the Uniform Fraudulent
Conveyance Act, the Uniform Fraudulent Transfer Act or any similar Federal or
state law.  To effectuate the foregoing intention, the Holders and such
Guarantor hereby irrevocably agree that the Guarantee Obligations of such
Guarantor under this Article XI shall be limited to the maximum amount as will,
after giving effect to all other contingent and fixed liabilities of such
Guarantor and after giving effect to any collections from or payments made by
or on behalf of any other Guarantor in respect of the Guarantee Obligations of
such other Guarantor under this Article XI, result in the Guarantee Obligations
of such Guarantor under the Guarantee of such Guarantor not constituting a
fraudulent transfer or conveyance.


 


(b)          
Each Guarantor hereby covenants and agrees, to the fullest extent that it may
do so under applicable law, that in the event of the insolvency, bankruptcy,
dissolution, liquidation or reorganization of the Issuer, such Guarantor shall
not file (or join in any filing of), or otherwise seek to participate in the
filing of, any motion or


 


107
















 


request seeking to stay or to prohibit (even
temporarily) execution on the Guarantee and hereby waives and agrees not to
take the benefit of any such stay of execution, whether under Section 362
or 105 of the Bankruptcy Law or otherwise.


 


Section 11.7                               
APPLICATION OF
CERTAIN TERMS AND PROVISIONS TO THE GUARANTORS


 


(a)          
For purposes of any provision of this Indenture which provides for the delivery
by any Guarantor of an Officers’ Certificate and/or an Opinion of Counsel, the
definitions of such terms in Section 1.1 hereof shall apply to such
Guarantor as if references therein to the Issuer were references to such Guarantor.


 


(b)          
Any request, direction, order or demand which by any provision of this
Indenture is to be made by any Guarantor, shall be sufficient if evidenced as
described in Section 12.2 hereof as if references therein to the Issuer
were references to such Guarantor.


 


(c)          
Any notice or demand which by any provision of this Indenture is required or
permitted to be given or served by the Trustee or by the Holders to or on any
Guarantor may be given or served as described in Section 12.2 hereof as if
references therein to the Issuer were references to such Guarantor.


 


(d)          
Upon any demand, request or application by any Guarantor to the Trustee to take
any action under this Indenture, such Guarantor shall furnish to the Trustee such
certificates and opinions as are required in Section 12.4 hereof as if all
references therein to the Issuer were references to such Guarantor.


 


ARTICLE XII

MISCELLANEOUS


 


Section 12.1                               
TRUST INDENTURE ACT
CONTROLS


 


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


 


Section 12.2                               
NOTICES


 


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


 


	
  If to the Issuer

  or the Guarantors:

  
	
   

  
	
   

  	
  The Wornick Company

  
	
   

  	
  3900 North 10th Street

  
	
   

  	
  Suite 900

  



 


108
















 


	
   

  	
  McAllen, Texas 78501

  
	
   

  	
  Attention:  Chief
  Executive Officer

  
	
   

  	
  Telecopier No.: (956)
  882-7816

  
	
   

  
	
  with copies (which 

  shall not constitute

  notice) to:

  
	
   

  
	
   

  	
  Veritas Capital
  Management II, L.L.C.

  
	
   

  	
  660 Madison Avenue

  
	
   

  	
  New York, New York
  10022

  
	
   

  	
  Attention: Robert B.
  McKeon

  
	
   

  	
  Telecopier No.: (212)
  688-9411

  
	
   

  
	
   

  	
  Schulte, Roth &
  Zabel LLP

  
	
   

  	
  919 Third Avenue

  
	
   

  	
  New York, New York
  10022

  
	
   

  	
  Attention: 
  Benjamin M. Polk, Esq.

  
	
   

  	
  Telecopier No.: (212)
  593-5955

  
	
   

  
	
   

  	
  Winston & Strawn
  LLP

  
	
   

  	
  200 Park Avenue

  
	
   

  	
  New York, New York
  10166

  
	
   

  	
  Attention: David A.
  Sakowitz, Esq.

  
	
   

  	
  Telecopier No.: (212)
  294-4700

  
	
   

  
	
  If to the Trustee:

  
	
   

  
	
   

  	
  U.S. Bank National
  Association

  
	
   

  	
  60 Livingston Avenue

  
	
   

  	
  St. Paul, Minnesota
  55107-2292

  
	
   

  	
  Attention: Frank Leslie

  
	
   

  	
  Telecopier No.: (651)
  495-8097

  



 


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


 


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


 


Any notice or
communication to a Holder shall be mailed by first class mail, certified or
registered, return receipt requested, or by overnight air courier guaranteeing
next day delivery to its address shown on the register kept by the
Registrar.  Any notice or communication shall also be so mailed to any
Person described in TIA


 


109
















 


§ 313(c), to the extent required by the
TIA.  Failure to mail a notice or communication to a Holder or any defect
in it shall not affect its sufficiency with respect to other Holders.


 


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


 


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


 


	
  Section 12.3

  	
  COMMUNICATION BY HOLDERS
  OF NOTES WITH OTHER HOLDERS OF NOTES 

  



 


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


 


	
  Section 12.4

  	
  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:


 


(a)          
an Officers’ Certificate in form and substance reasonably satisfactory to the
Trustee (which shall include the statements set forth in Section 12.5
hereof) stating that, in the opinion of the signers, all conditions precedent
and covenants, if any, provided for in this Indenture relating to the proposed
action have been satisfied; and 


 


(b)          
an Opinion of Counsel in form and substance reasonably satisfactory to the
Trustee (which shall include the statements set forth in Section 12.5
hereof) stating that, in the opinion of such counsel, all such conditions
precedent and covenants have been satisfied.


 


	
  Section 12.5

  	
  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 a certificate provided pursuant to TIA
§ 314(a)(4)) shall include: 


 


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


 


(b)          
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;


 


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


 


110
















 


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


 


provided,
however, that with respect to matters of fact, an Opinion of Counsel
may rely on an Officers’ Certificate or certificate of public officials.


 


Section 12.6                               
RULES BY TRUSTEE AND
AGENTS


 


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


 


Section 12.7                               
NO PERSONAL LIABILITY
OF DIRECTORS, OFFICERS, EMPLOYEES AND STOCKHOLDERS


 


 No direct or
indirect stockholder, employee, officer or director, as such, past, present or
future of the Issuer, the Guarantors or any successor entity shall have any
personal liability in respect of the Issuer’s obligations or the obligations of
the Guarantors under this Indenture or the Notes solely by reason of his, her
or its status as such stockholder, employee, officer or director, except that
this provision shall in no way limit the obligation of any Guarantor pursuant
to any Guarantee of the Notes. 


 


Section 12.8                               
GOVERNING LAW


 


THIS INDENTURE, THE NOTES
AND THE GUARANTEES SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE
LAWS OF THE STATE OF NEW YORK APPLICABLE TO CONTRACTS MADE AND TO BE PERFORMED
IN THE STATE OF NEW YORK, INCLUDING, WITHOUT LIMITATION, SECTIONS 5-1401 AND
5-1402 OF THE NEW YORK GENERAL OBLIGATIONS LAW AND NEW YORK CIVIL PRACTICE LAWS
AND RULES 327(B); PROVIDED, THAT WITH RESPECT TO THE CREATION, ATTACHMENT,
PERFECTION,  PRIORITY, ENFORCEMENT OF AND REMEDIES RELATING TO THE
SECURITY INTEREST IN ANY REAL PROPERTY COLLATERAL, THE GOVERNING LAW MAY BE THE
LAWS OF THE JURISDICTIONS WHERE SUCH COLLATERAL IS LOCATED WITHOUT REGARD TO
THE CONFLICT OF LAW PROVISIONS THEREOF.


 


Section 12.9                               
NO ADVERSE
INTERPRETATION OF OTHER AGREEMENTS


 


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


 


Section 12.10                         
SUCCESSORS


 


Except as otherwise
provided in Section 11.5, all agreements of the Issuer and the Guarantors
in this Indenture and the Notes shall bind their successors.  All
agreements of the Trustee in this Indenture shall bind the its successors.


 


111
















 


	
  Section 12.11

  	
  SEVERABILITY

  



 


In case any one or more
of the provisions of this Indenture or in the Notes or in the 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.


 


	
  Section 12.12

  	
  COUNTERPART ORIGINALS

  



 


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


 


	
  Section 12.13

  	
  TABLE OF
  CONTENTS,  HEADINGS, ETC.

  



 


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


 


	
  Section 12.14

  	
  INTERCREDITOR AGREEMENT

  



 


So long as the
Intercreditor Agreement is in effect, the rights, obligations and remedies of
the parties shall be subject thereto.  This Indenture shall not impose any
obligation or grant any right to any party to the extent that such obligation
or right is inconsistent or conflicts with the Intercreditor Agreement. 
This Section 12.14 is for the benefit of the Holders and the Trustee, and
none of the Issuer or Guarantors shall be third party beneficiaries hereof.


 


[Signatures on following page]


 


112
















 


SIGNATURES


 


IN WITNESS WHEREOF, the
parties hereto have executed this Indenture as of the date first written above.


 


	
   

  	
  THE
  ISSUER:

  
	
   

  	
   

  
	
   

  	
  THE
  WORNICK COMPANY

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Robert B. McKeon

  	
   

  
	
   

  	
   

  	
  Name: Robert B. McKeon

  
	
   

  	
   

  	
  Title: Chairman of the
  Board

  
	
   

  	
   

  
	
   

  	
  GUARANTORS:

  
	
   

  	
   

  
	
   

  	
  RIGHT
  AWAY MANAGEMENT

  CORPORATION

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Robert B. McKeon

  	
   

  
	
   

  	
   

  	
  Name: Robert B. McKeon

  
	
   

  	
   

  	
  Title: Chairman of the
  Board

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  THE
  WORNICK COMPANY RIGHT

  AWAY DIVISION

  
	
   

  	
   

  
	
   

  	
  By:

  
	
   

  	
   

  	
  /s/ Robert B. McKeon

  	
   

  
	
   

  	
   

  	
  Name: Robert B. McKeon

  
	
   

  	
   

  	
  Title: Chairman of the
  Board

  
	
   

  	
   

  
	
   

  	
  THE WORNICK
  COMPANY RIGHT

  AWAY DIVISION, L.P.

  
	
   

  	
   

  
	
   

  	
  By:

  
	
   

  	
   

  	
  Right Away Management
  Corporation, its

  General Partner

  
	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
  /s/ Robert B. McKeon

  	
   

  
	
   

  	
   

  	
  Name: Robert B. McKeon

  
	
   

  	
   

  	
  Title: Chairman of the
  Board

  
	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  



 
















 


	
   

  	
  THE
  TRUSTEE:

  
	
   

  	
   

  
	
   

  	
  U.S.
  BANK NATIONAL ASSOCIATION

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Richard H. Prokosch

  	
   

  
	
   

  	
   

  	
  Name: Richard H.
  Prokosch

  
	
   

  	
   

  	
  Title: Vice President

  



 
















 


EXHIBIT A


 


[FORM
OF NOTE]


 


THE
WORNICK COMPANY


 


107/8%
[SERIES A] [SERIES B](1) SENIOR SECURED NOTE

DUE 2011


 


	
   

  	
   

  	
  CUSIP:

  
	
   

  	
   

  	
  ISIN:

  
	
  No.

  	
   

  	
  $

  



 


The Wornick Company, a
Delaware corporation (the “Issuer,”
which term includes any successors under the Indenture (as defined below)), for
value received, hereby promise to pay to Cede & Co., or registered assigns,
the principal sum of
                
Dollars, on July 15, 2011.


 


Interest
Payment Dates:
January 15 and July 15, commencing January 15, 2005.


 


Record
Dates: January 1
and July 1.


 


Reference is made to the
further provisions of this Note on the reverse side, which shall, for all
purposes, have the same effect as if set forth at this place.


 


Upon request, the Issuer shall promptly make available
to a holder of this Note information regarding the issue price, the amount of
original issue discount, the issue date, and the yield to maturity of this
Note.  Holders should contact The Wornick Company, 10825 Kenwood Road,
Cincinnati, Ohio 45242, Attention: Secretary. 


 










(1)          
Series A should be replaced with Series B in the Exchange Notes.


 


A-1
















 


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


 


	
   

  	
  THE WORNICK COMPANY,

  
	
   

  	
  a Delaware corporation

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  



 
















 


TRUSTEE’S
CERTIFICATE OF AUTHENTICATION


 


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


 


	
   

  	
  U.S BANK NATIONAL
  ASSOCIATION

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
   

  	
  Authorized Signatory

  
	
   

  	
   

  
	
   

  	
   

  
	
  Dated:

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  



 
















 


(Reverse of Note)


 


107/8%
[Series A] [Series B](2) Senior Secured Note due 2011


 


[THIS GLOBAL NOTE IS HELD BY THE DEPOSITARY (AS
DEFINED IN THE INDENTURE GOVERNING THIS NOTE) OR ITS NOMINEE IN CUSTODY FOR THE
BENEFIT OF THE BENEFICIAL OWNERS HEREOF, AND IS NOT TRANSFERABLE TO ANY PERSON
UNDER ANY CIRCUMSTANCES EXCEPT THAT (I) THE TRUSTEE MAY MAKE SUCH NOTATIONS
HEREON AS MAY BE REQUIRED PURSUANT TO SECTION 2.6 OF THE INDENTURE, (II) THIS
GLOBAL NOTE MAY BE EXCHANGED IN WHOLE BUT NOT IN PART PURSUANT TO SECTION
2.6(a) OF THE INDENTURE, (III) THIS GLOBAL NOTE MAY BE DELIVERED TO THE
TRUSTEE FOR CANCELLATION PURSUANT TO SECTION 2.11 OF THE INDENTURE AND (IV)
THIS GLOBAL NOTE MAY BE TRANSFERRED TO A SUCCESSOR DEPOSITARY WITH THE PRIOR
WRITTEN CONSENT OF THE ISSUER.](3)


 


[UNLESS AND UNTIL IT IS EXCHANGED IN WHOLE OR IN PART
FOR NOTES IN DEFINITIVE FORM, THIS NOTE MAY NOT BE TRANSFERRED EXCEPT AS A
WHOLE BY THE DEPOSITARY TO A NOMINEE OF THE DEPOSITARY, OR BY A NOMINEE OF THE
DEPOSITARY, TO THE DEPOSITARY OR ANOTHER NOMINEE OF THE DEPOSITARY OR BY THE
DEPOSITARY OR ANY SUCH NOMINEE TO A SUCCESSOR DEPOSITARY OR A NOMINEE OF SUCH
SUCCESSOR DEPOSITARY.  UNLESS THIS CERTIFICATE IS PRESENTED BY AN
AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY (55 WATER STREET, NEW
YORK, NEW YORK) (“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 MAY BE REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR SUCH OTHER
ENTITY AS MAY BE 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.](4)


 


[THE RIGHTS ATTACHING TO THIS REGULATION S TEMPORARY
GLOBAL NOTE AND THE CONDITIONS AND PROCEDURES GOVERNING ITS EXCHANGE FOR
DEFINITIVE NOTES, ARE AS SPECIFIED IN THE INDENTURE (AS DEFINED HEREIN). 
NEITHER THE HOLDER NOR THE BENEFICIAL OWNERS OF THIS REGULATION S TEMPORARY
GLOBAL NOTE SHALL BE


 










(2)          
Series A should be replaced with Series B in the Exchange Notes.


 


(3)          
To be included only on Global Notes deposited with DTC as Depositary.


 


(4)          
To be included only on Global Notes deposited with DTC as Depositary.


 


A-3
















 


ENTITLED TO RECEIVE CASH PAYMENTS OF INTEREST DURING
THE PERIOD WHICH SUCH HOLDER HOLDS THIS NOTE.  NOTHING IN THIS LEGEND
SHALL BE DEEMED TO PREVENT INTEREST FROM ACCRUING ON THIS NOTE.](5)


 


[THIS SECURITY HAS NOT BEEN REGISTERED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), OR ANY STATE
SECURITIES LAWS.  NEITHER THIS SECURITY NOR ANY INTEREST OR PARTICIPATION
HEREIN MAY BE REOFFERED, SOLD, ASSIGNED, TRANSFERRED, PLEDGED, ENCUMBERED OR OTHERWISE
DISPOSED OF IN THE ABSENCE OF SUCH REGISTRATION OR UNLESS SUCH TRANSACTION IS
EXEMPT FROM, OR NOT SUBJECT TO, REGISTRATION.  THE HOLDER OF THIS SECURITY
BY ITS ACCEPTANCE HEREOF AGREES TO OFFER, SELL OR OTHERWISE TRANSFER THIS
SECURITY, PRIOR TO THE DATE WHICH IS TWO YEARS (OR SUCH OTHER PERIOD THAT MAY
HEREAFTER BE PROVIDED UNDER RULE 144(k) UNDER THE SECURITIES ACT AS
PERMITTING RESALES OF RESTRICTED SECURITIES BY NON-AFFILIATES WITHOUT
RESTRICTION) AFTER THE LATER OF THE ORIGINAL ISSUE DATE HEREOF AND THE LAST
DATE ON WHICH THE ISSUER OR ANY AFFILIATE OF THE ISSUER WAS THE OWNER OF THIS
SECURITY (OR ANY PREDECESSOR OF THIS SECURITY) (THE “RESALE RESTRICTION
TERMINATION DATE”) ONLY (A) TO THE ISSUER, (B) PURSUANT TO A REGISTRATION
STATEMENT WHICH HAS BEEN DECLARED EFFECTIVE UNDER THE SECURITIES ACT, (C) FOR
SO LONG AS THIS SECURITY IS ELIGIBLE FOR RESALE PURSUANT TO RULE 144A UNDER THE
SECURITIES ACT, TO A PERSON IT REASONABLY BELIEVES IS A “QUALIFIED
INSTITUTIONAL BUYER” AS DEFINED IN RULE 144A UNDER THE SECURITIES ACT THAT
PURCHASES FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF A QUALIFIED INSTITUTIONAL
BUYER TO WHOM NOTICE IS GIVEN THAT THE TRANSFER IS BEING MADE IN RELIANCE ON
RULE 144A UNDER THE SECURITIES ACT, (D) TO AN INSTITUTIONAL “ACCREDITED INVESTOR”
WITHIN THE MEANING OF SUBPARAGRAPH (a) (1), (2), (3) OR (7) OF RULE
501 UNDER THE SECURITIES ACT THAT IS ACQUIRING THIS SECURITY FOR ITS OWN
ACCOUNT, OR FOR THE ACCOUNT OF SUCH AN INSTITUTIONAL “ACCREDITED INVESTOR,” FOR
INVESTMENT PURPOSES AND NOT WITH A VIEW TO, OR FOR OFFER OR SALE IN CONNECTION
WITH, ANY DISTRIBUTION IN VIOLATION OF THE SECURITIES ACT OR (E) PURSUANT TO
ANOTHER AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE
SECURITIES ACT, SUBJECT TO THE ISSUER’S AND THE TRUSTEE’S RIGHT PRIOR TO ANY
SUCH OFFER, SALE OR TRANSFER PURSUANT TO CLAUSE (D) OR (E) TO REQUIRE THE
DELIVERY OF AN OPINION OF COUNSEL, CERTIFICATIONS AND/OR OTHER INFORMATION
SATISFACTORY TO EACH OF THEM, AND IN EACH OF THE FOREGOING CASES, A CERTIFICATE
OF TRANSFER IN THE FORM


 










(5)          
To be included only on Reg S Temporary Global Notes


 


A-4
















 


APPEARING ON THIS SECURITY IS COMPLETED AND DELIVERED
BY THE TRANSFEROR TO THE TRUSTEE AND IN EACH CASE IN ACCORDANCE WITH APPLICABLE
SECURITIES LAWS OF ANY U.S. STATE OR ANY OTHER APPLICABLE JURISDICTION.](6)


 


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


 


1.            
Interest.  The Wornick
Company, a Delaware corporation (the “Issuer,”
which term includes any successors under the Indenture), promises to pay
Interest on the principal amount of this Note at 107/8%
per annum from the Issue Date until maturity and shall pay the Liquidated
Damages, if any, payable pursuant to Section 4 of the Registration Rights
Agreement referred to below.  The Issuer will pay Interest and Liquidated
Damages, if any, semi-annually on January 15 and July 15 of each year, or if
any such day is not a Business Day, on the next succeeding Business Day (each
an “Interest Payment Date”). 
The first Interest Payment Date shall be January 15, 2005.  Interest on
the Notes shall accrue from the most recent date to which Interest has been
paid or, if no Interest has been paid, from the Issue Date; provided that if there is no existing
Default in the payment of Interest, and if this Note is authenticated between
an Interest Record Date (defined below) referred to on the face hereof and the
next succeeding Interest Payment Date, Interest shall accrue from such next
succeeding Interest Payment Date.  The Issuer shall pay Interest
(including Accrued Bankruptcy Interest in any proceeding under any Bankruptcy
Law) on overdue principal and premium, if any, from time to time on demand at
the rate then in effect; it shall pay Interest (including Accrued Bankruptcy
Interest in any proceeding under any Bankruptcy Law) on overdue installments of
Interest (and Liquidated Damages, if any) without regard to any applicable
grace periods from time to time on demand at the same rate to the extent
lawful.  Interest will be calculated on the basis of a 360-day year
consisting of twelve 30-day months.


 


2.            
Method of Payment.  The
Issuer shall pay Interest on the Notes and Liquidated Damages, if any, to the
Persons who are registered Holders of Notes at the close of business on the
January 1 or July 1 next preceding the Interest Payment Date (each an “Interest Record Date”), even if such Notes
are cancelled after such Interest Record Date and on or before such Interest
Payment Date, except as provided in Section 2.12 of the Indenture (as
defined below) with respect to Defaulted Interest.  The Notes will be
payable as to principal, Interest, premium, if any, and Liquidated Damages, if
any, at the office or agency of the Issuer maintained within the City and State
of New York for such purpose, or, at the option of the Issuer, payment of
Interest and Liquidated Damages, if any, may be made by check mailed to the
Holders at their addresses set forth in the register of Holders, and provided
that payment by wire transfer of immediately available funds to an account
within the United States shall be required with respect to principal of and
Interest, premium, if any, and Liquidated Damages, if any, on all Global


 










(6)          
To be included only on Transfer Restricted Notes


 


A-5
















 


Notes.  Such payment shall be in such coin or
currency of the United States of America as at the time of payment is legal
tender for payment of public and private debts.


 


3.            
Paying Agent and Registrar. 
Initially, U.S. Bank National Association, the Trustee under the Indenture,
shall act as Paying Agent and Registrar.  The Issuer may change any Paying
Agent or Registrar without notice to any Holder.  The Issuer or any of its
subsidiaries may act in any such capacity.


 


4.            
Indenture.  The Issuer
issued the Notes under an Indenture, dated as of the Issue Date (as it may be
amended or supplemented from time to time, the “Indenture”), by and among the Issuer, the Guarantors party
thereto and the Trustee.  The terms of the Notes include those stated in
the Indenture and those made part of the Indenture by reference to the Trust
Indenture Act of 1939, as amended (15 U.S. Code §§ 77aaa-77bbbb). 
The Notes are subject to all such terms, and Holders are referred to the
Indenture and such Act for a statement of such terms.


 


The Obligations under the
Indenture, the Intercreditor Agreement, the Notes and the Guarantees thereof
are secured by the Collateral described in the Collateral Agreements, subject
to the provisions of such agreements.  Holders are referred to the
Collateral Agreements for a statement of such terms.


 


5.            
Optional Redemption.


 


(a)          
The Issuer will not have the right to redeem any Notes prior to July 15, 2008
(other than with Net Cash Proceeds of a Qualified Equity Offering, as provided
in (b)).  The Notes will be redeemable for cash at the option of the
Issuer, in whole or in part, on or after July 15, 2008 at the following
redemption prices (expressed as percentages of the principal amount) if
redeemed during the 12-month period commencing July 15 of the years indicated
below, in each case together with accrued and unpaid Interest (and Liquidated
Damages, if any) to the date of redemption of the Notes (the “Redemption Date”):


 


 


	
  Year

  	
   

  	
  Percentage

  	
   

  
	
  2008

  	
   

  	
  105.438

  	
  %

  
	
  2009

  	
   

  	
  102.719

  	
  %

  
	
  2010 and thereafter

  	
   

  	
  100.000

  	
  %

  



 


(b)          
Notwithstanding the provisions of clause (a) of this Section 5, at any
time on or prior to July 15, 2007, upon a Qualified Equity Offering, up to 35%
of the aggregate principal amount of the Notes originally issued pursuant to
the Indenture may be redeemed at the Issuer’s option within 90 days of such
Qualified Equity Offering, with cash received by the Issuer from the Net Cash
Proceeds of such Qualified Equity Offering, at a redemption price equal to
110.875% of principal amount thereof, together with accrued and unpaid Interest
(and Liquidated Damages, if any) to the Redemption Date; provided, however, that immediately following
such redemption not less than 65%


 


A-6
















 


of the aggregate principal amount of the Notes
originally issued pursuant to the Indenture on the Issue Date remain
outstanding.


 


(c)          
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 whose Notes are
to be redeemed at its registered address.  Notes in denominations larger
than $1,000 may be redeemed in part but only in integral multiples of $1,000,
unless all of the Notes held by a Holder are to be redeemed.  On and after
the Redemption Date, Interest ceases to accrue on Notes or portions thereof
called for redemption unless the Issuer defaults in such payments due on the
redemption date.


 


6.            
Mandatory Redemption.  The
Issuer shall not be required to make mandatory redemption payments with respect
to the Notes.  The Notes shall not have the benefit of any sinking fund.


 


7.            
Offers to Purchase.


 


(a)          
Change of Control.  In the
event that a Change of Control has occurred, each Holder of Notes shall have
the right, at such Holder’s option, pursuant to an offer (subject only to
conditions required by applicable law, if any) by the Issuer (the “Change of Control Offer”), to require the
Issuer to repurchase all or any part of such Holder’s Notes (provided, that the principal amount of
such Notes must be $1,000 or an integral multiple thereof) on a date (the “Change of Control Purchase Date”) that is
no later than 60 days after the occurrence of such Change of Control, at a
cash price equal to 101% of the principal amount thereof (the “Change of Control Purchase Price”),
together with accrued and unpaid Interest (and Liquidated Damages, if any) to
the Change of Control Purchase Date. The Change of Control Offer shall be made
within 30 days following a Change of Control and shall remain open for at
least 30 days following its commencement (the “Change of Control Offer Period”). On the Change of Control
Purchase Date, to the extent lawful, the Issuer promptly shall purchase all
Notes properly tendered in response to the Change of Control Offer. 


 


On or before the Change
of Control Purchase Date, the Issuer shall: (i) accept for payment Notes
or portions thereof properly tendered pursuant to the Change of Control Offer,
(ii) deposit with the Paying Agent cash in an amount sufficient to pay the
Change of Control Purchase Price, together with accrued and unpaid Interest
(and Liquidated Damages, if any) to the Change of Control Purchase Date of all
Notes so tendered, and (iii) deliver to the Trustee the Notes so accepted
together with an Officers’ Certificate listing the Notes or portions thereof
being purchased by the Issuer.  The Paying Agent promptly shall pay each
Holder of Notes so accepted an amount equal to the Change of Control Purchase
Price, together with accrued and unpaid Interest (and Liquidated Damages, if
any) to the Change of Control Purchase Date, and the Trustee promptly shall
authenticate and deliver to such Holder a new Note equal in principal amount to
any unpurchased portion of the Note surrendered.  Any Notes not so
accepted shall be delivered promptly by the Issuer to the Holder thereof. 
The Issuer shall publicly announce the results of the Change of Control Offer
on or as soon as practicable after the Change of Control Purchase Date. 


 


A-7
















 


(b)          
Asset Sale.  Subject to certain exceptions set forth in the
Indenture, the Issuer shall not and the Guarantors shall not, and neither the
Issuer nor the Guarantors shall permit any of the Subsidiaries to, in one or a
series of related transactions, make any Asset Sale unless, with respect to any
Asset Sale or related series of Asset Sales involving securities, property or
assets (i) at least 75% of the total consideration for such Asset Sale or
series of related Asset Sales consists of cash or Cash Equivalents, and
(ii) with respect to any Asset Sale or related series of Asset Sales
involving a conveyance, sale, transfer, assignment or other disposition of securities,
property or assets with an aggregate fair market value in excess of $2,000,000,
management determines in reasonable good faith that the Issuer shall receive or
such Subsidiary shall receive, as applicable, fair market value for such Asset
Sale, and (iii) with respect to any Asset Sale or related series of Asset
Sales involving a conveyance, sale, transfer, assignment or other disposition
of securities, property or assets with an aggregate fair market value in excess
of $5,000,000, the Issuer’s Board of Directors determines in reasonable good
faith that the Issuer will receive or such Subsidiary shall receive, as
applicable, fair market value for such Asset Sale.  For purposes of clause
(i) of the preceding sentence the following shall be deemed to constitute cash
or Cash Equivalents: (a) the amount of any Indebtedness or other
liabilities of the Issuer or such Subsidiary (other than Indebtedness or
liabilities that are by their terms subordinated to the Notes and the
Guarantees) that are assumed by the transferee of any such assets so long as
the documents governing such liabilities provide that there is no further
recourse to the Issuer or any of its Subsidiaries with respect to such
liabilities and (b) fair market value of any marketable securities, currencies,
notes or other obligations received by the Issuer or any such Subsidiary in
exchange for any such assets that are converted into cash or Cash Equivalents
within 90 days after the consummation of such Asset Sale, provided, that such cash and Cash Equivalents
shall be treated as Net Cash Proceeds attributable to the original Asset Sale
for which such property was received. 


 


Within 360 days following
such Asset Sale, the Net Cash Proceeds therefrom (the “Asset Sale Amount”) shall be: (a)
(i) used to retire Purchase Money Indebtedness secured by the asset which
was the subject of the Asset Sale, or (ii) used to retire and permanently
reduce Indebtedness incurred under the Credit Agreement; provided, that in the
case of a revolver or similar arrangement that makes credit available, such
commitment is permanently reduced by such amount; or (b) invested in
assets or property (other than notes, bonds, obligations and securities, except
in connection with the acquisition of a Person in a Related Business which
immediately following such acquisition becomes a Subsidiary and a Guarantor)
which in the reasonable good faith judgment of the Issuer’s Board of Directors
will immediately constitute or be a part of a Related Business of the Issuer or
such Subsidiary (if it continues to be a Subsidiary) immediately following such
transaction; or (c) any combination of (a) or (b).  All Net Cash
Proceeds from an Event of Loss shall be used as follows: (1) first, the
Issuer shall use such Net Cash Proceeds to the extent necessary to rebuild,
repair, replace or restore the assets subject to such Event of Loss with
comparable assets; and (2) then, to the extent any Net Cash Proceeds from
an Event of Loss are not used as described in the preceding clause (1), all
such remaining Net Cash Proceeds shall be reinvested or used as provided in the
immediately preceding clause (a), (b) or (c). 


 


A-8
















 


The accumulated Net Cash
Proceeds from Asset Sales not applied as set forth in clause (a), (b) or
(c) of the immediately preceding paragraph and the accumulated Net Cash
Proceeds from any Event of Loss not applied as set forth in clause (1) or
(2) of the immediately preceding paragraph shall constitute “Excess Proceeds.” Pending the final
application of any Net Cash Proceeds,  the Issuer may temporarily reduce
revolving credit borrowings or otherwise invest or use for general corporate
purposes (other than Restricted Payments that are not solely Restricted
Investments) the Net Cash Proceeds in any manner that is not prohibited by the Indenture;
provided, however, that the
Issuer may not use the Net Cash Proceeds to make Restricted Payments other than
Restricted Payments that are solely Restricted Investments or to make Permitted
Investments pursuant to clause (a) of the definition thereof.  When
the Excess Proceeds equal or exceed $5,000,000,  the Issuer shall offer to
repurchase the Notes, together with any other Indebtedness ranking on a parity
with the Notes and with similar provisions requiring the Issuer to make an
offer to purchase such Indebtedness with the proceeds from such Asset Sale
pursuant to a cash offer (subject only to conditions required by applicable
law, if any), pro rata in
proportion to the respective principal amounts of such Indebtedness (or
accreted values in the case of Indebtedness issued with an original issue
discount) and the Notes (the “Asset Sale
Offer”) at a purchase price of 100% of the principal amount (or
accreted value in the case of Indebtedness issued with an original issue
discount) (the “Asset Sale Offer Price”)
together with accrued and unpaid Interest (and Liquidated Damages, if any) to
the date of payment.  In order to effect the Asset Sale Offer,  the
Issuer shall promptly after expiration of the 360-day period following the
Asset Sale that produced such Excess Proceeds mail to each Holder of Notes
notice of the Asset Sale Offer (the “Asset
Sale Notice”), offering to purchase the Notes on a date (the “Asset Sale Purchase Date”) that is no
earlier than 30 days and no later than 60 days after the date that
the Asset Sale Notice is mailed, pursuant to the procedures required by the
Indenture and described in the Asset Sale Notice.  On the Asset Sale
Purchase Date,  the Issuer shall apply an amount equal to the Excess
Proceeds (the “Asset Sale Offer Amount”)
to the purchase of all Indebtedness properly tendered in accordance with the
provisions of this Section 7(b) (on a pro
rata basis if the Asset Sale Offer Amount is insufficient to
purchase all Indebtedness so tendered) at the Asset Sale Offer Price, together
with accrued and unpaid Interest (and Liquidated Damages, if any) to the date
of payment.  To the extent that the aggregate amount of Notes and such
other pari passu Indebtedness
tendered pursuant to an Asset Sale Offer is less than the Asset Sale Offer
Amount, the Issuer may use any remaining Net Cash Proceeds as otherwise
permitted by the Indenture.  Following the consummation of each Asset Sale
Offer in accordance with the provisions of this Section 7(b), the Excess
Proceeds amount shall be reset to zero. 


 


(c)          
Within 90 days after the end of each fiscal year, the Issuer shall make an
offer to all Holders (the “Excess Cash Flow
Offer”) to purchase the maximum principal amount of Notes that is an
integral multiple of $1,000 with 50% of the Issuer’s Excess Cash Flow from such
fiscal year (measured from the Issue Date in the case of the fiscal year in
which the Issue Date occurs) (the “Excess
Cash Flow Offer Amount”), at a purchase price in cash equal to 101%
of the principal amount of the Notes to be purchased (the “Excess Cash Flow Purchase Price”),
together with accrued and unpaid Interest (and Liquidated Damages, if any) to
the date fixed for the purchase of the Notes pursuant to


 


A-9
















 


such Excess Cash Flow Offer; provided, however,
that the Excess Cash Flow Offer Amount for a fiscal year shall be reduced by
the aggregate principal amount of Notes purchased by the Issuer in the open
market during such fiscal year and during the period prior to the date of such
Excess Cash Flow Offer, but only to the extent that such principal amount was
not taken into account in reducing the Excess Cash Flow Offer Amount for any
prior periods. 


 


In order to effect the
Excess Cash Flow Offer, the Issuer shall promptly mail to each Holder of Notes
notice of the Excess Cash Flow Offer (the “Excess
Cash Flow Notice”) offering to purchase the Notes on a date (the “Excess Cash Flow Purchase Date”) that is
no earlier than 30 days and no later than 60 days after the date that
the Excess Cash Flow Notice is mailed. The Excess Cash Flow Offer will be
required to remain open for 20 Business Days following its commencement. 


 


On the Excess Cash Flow
Purchase Date, the Issuer shall apply the Excess Cash Flow Offer Amount to the
purchase of all Notes properly tendered pursuant to an Excess Cash Flow Offer
(on a pro rata basis if the Excess Cash Flow Offer Amount is insufficient to
purchase all Notes so tendered) at the Excess Cash Flow Purchase Price,
together with accrued and unpaid Interest (and Liquidated Damages, if any) to
the date of payment. To the extent that the aggregate amount of Notes tendered
pursuant to any Excess Cash Flow Offer is less than the Excess Cash Flow Offer
Amount, the Issuer may use any remaining Excess Cash Flow Offer Amount as
otherwise permitted by the Indenture. 


 


Any Excess Cash Flow
Offer shall be made in compliance with all applicable laws, rules and
regulations, including, if applicable, Regulation 14E under the Exchange
Act and the rules and regulations thereunder and all other applicable federal
and state securities laws. To the extent that the provisions of any securities
laws or regulations conflict with the provisions of this Section 7, the
Issuer’s compliance or the compliance of any of the Subsidiaries with such laws
and regulations will not in and of itself cause a breach of the Issuer’s
obligations under this Section 7. 


 


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


 


9.            
Persons Deemed Owners.  The
registered Holder of a Note may be treated as its owner for all purposes.


 


A-10
















 


10.          
Amendment, Supplement, Modification and
Waiver.  


 


(a)          
Subject to certain exceptions, the Issuer, the Guarantors and the Trustee may
amend, supplement or otherwise modify the Indenture, the Notes, the Guarantees,
the Intercreditor Agreement (subject to any required approval of the lenders
under the Credit Agreement party thereto) and the Collateral Agreements, with
the consent of the Holders of a majority in aggregate principal amount of the
Notes then outstanding (including, without limitation, consents obtained in
connection with a purchase of, or tender offer or exchange offer for, the
Notes), and, subject to Sections 6.4 and 6.7 of the Indenture, any
existing Default or Event of Default (other than a Default or Event of Default
in the payment of the principal of or premium, if any, or Interest on the
Notes, except a payment default resulting from an acceleration that has been
rescinded) or compliance with any provision of the Indenture, the Notes, the
Guarantees, the Intercreditor Agreement (subject to any required approval of
the lenders under the Credit Agreement party thereto) and the Collateral
Agreements may be waived with the consent of the Holders of a majority in
aggregate principal amount of the Notes then outstanding (including, without
limitation, consents obtained in connection with a purchase of, or tender offer
or exchange offer for, the Notes).  Without the consent of the Holders,
the Issuer, the Guarantors and the Trustee may amend, modify or supplement the
Indenture, the Notes, the Guarantees, the Intercreditor Agreement and the
Collateral Agreements to cure any ambiguity, defect or inconsistency, to
provide for uncertificated Notes in addition to or in place of certificated
Notes, to provide for the assumption of any of the Issuer’s or the Guarantors’
obligations to Holders in the case of a merger or consolidation or a sale of
all or substantially all of the Issuer’s assets in accordance with the
Indenture, to evidence the release of any Guarantor permitted to be released
under the terms of the Indenture or to evidence the addition of any new
Guarantor, to comply with requirements of the Commission in order to effect or
maintain the qualification of the Indenture under the Trust Indenture Act, to
comply with the provisions of DTC or the Trustee with respect to the provisions
of the Indenture and the Notes relating to transfers and exchanges of Notes or
beneficial interests therein, to make any change that would provide any
additional rights or benefits to the Holders or that does not adversely affect
the rights of any Holder of Notes under the Indenture, the Notes, the
Guarantees, the Intercreditor Agreement, the Collateral Agreements or the
Registration Rights Agreement,
or         to provide for the issuance
of Additional Notes in accordance with the limitations set forth in the
Indenture as of the date thereof. 


 


(b)          
Notwithstanding the foregoing and subject to the Intercreditor Agreement, no
portion of the Collateral may be released from the Lien of the Collateral
Agreements (except in accordance with the provisions of the Indenture and the
Collateral Agreements), and none of the Collateral Agreements or the provisions
of the Indenture relating to the Collateral may be amended or supplemented, and
the rights of any Holders thereunder may not be waived or modified, without, in
each case, the consent of the Holders of at least 662/3%
in aggregate principal amount of the Notes then outstanding.


 


11.          
Defaults and Remedies.  
Each of the following constitutes an Event of Default: (a) the Issuer’s
failure to pay any installment of Interest (or Liquidated Damages, if any) on
the Notes as and when the same becomes due and payable and the continuance of
any such failure for 30 days, (b) the Issuer’s failure to pay all or
any part of the principal of or premium, if any, on the Notes when and as the
same becomes due


 


A-11
















 


and payable at maturity, redemption, by acceleration
or otherwise, including, without limitation, payment of the Change of Control
Purchase Price, the Asset Sale Offer Price or the Excess Cash Flow Purchase
Price, on Notes validly tendered and not properly withdrawn pursuant to a
Change of Control Offer, Asset Sale Offer or Excess Cash Flow Offer, as
applicable, (c) the Issuer’s failure or the failure by any of the
Guarantors or any of the Subsidiaries to observe or perform any other covenant
or agreement contained in the Notes or the Indenture (excluding the covenant
set forth in the next to last sentence of Section 4.3 of the Indenture) and,
except for the provisions under Sections 4.13, 4.14, 4.22 and 5.1 of the
Indenture, the continuance of such failure for a period of 30 days after
the earlier of the Issuer’s receipt of written notice of such Default from the
Trustee or from the Holders of at least 25% in aggregate principal amount of
the Notes outstanding, (d) a default occurs (after giving effect to any
waivers, amendments, applicable grace periods or any extension of any maturity
date) in the Issuer’s Indebtedness or the Indebtedness of the Guarantors or any
of the Subsidiaries with an aggregate amount outstanding in excess of
$5,000,000 (x) resulting from the failure to pay principal of such
Indebtedness at maturity, or (y) if as a result of such default, the
maturity of such Indebtedness has been accelerated prior to its stated
maturity, (e) final, non-appealable unsatisfied judgments not covered by insurance
aggregating in excess of $5,000,000 at any one time rendered against the
Issuer, or any of the Guarantors or any of the Subsidiaries and not stayed,
bonded or discharged within 60 days, (f) any Guarantee of a Guarantor
ceases to be in full force and effect or becomes unenforceable or invalid or is
declared null and void (other than in accordance with the terms of the
Guarantee and the Indenture) or any Guarantor denies or disaffirms its
Obligations under its Guarantee, (g) any failure to comply with any material
agreement or material covenant in any of the Collateral Agreements, and such
failure or breach shall continue for a period of 30 days after written
notice is given to the Issuer by the Trustee, or to the Issuer and the Trustee
by the Holders of at least 25% in aggregate principal amount of the Notes
outstanding, (h) any of the Collateral Agreements at any time for any
reason ceases to be in full force and effect, or is declared null and void, or
shall cease to be effective in all material respects to give the Trustee the
Liens with the priority purported to be created thereby (subject to the
Intercreditor Agreement) subject to no other Liens (in each case, other than as
expressly permitted by the Indenture and the applicable Collateral Agreement,
or by reason of the termination of the Indenture or the applicable Collateral
Agreement in accordance with its terms), (i) a court having jurisdiction
in the premises enters a decree or order for (A) relief in respect of the
Issuer, any of the Guarantors, or
any Significant Subsidiary in an involuntary case under any applicable
Bankruptcy Law now or hereafter in effect, (B) appointment of a receiver,
liquidator, assignee, custodian, trustee, sequestrator or similar official of
the Issuer, any of
the Guarantors or any Significant Subsidiary or for all or substantially all of
the property and assets of the Issuer, any of the Guarantors or any Significant Subsidiary or
(C) the winding up or liquidation of the affairs of the Issuer, any of the Guarantors or any Significant
Subsidiary and, in each case, such decree or order shall remain unstayed and in
effect for a period of 60 consecutive days, or (j) the
Issuer, any of the Guarantors or
any Significant Subsidiary (A) commences a voluntary case under any applicable
Bankruptcy 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,


 


A-12




















 


liquidator, assignee, custodian, trustee, sequestrator
or similar official of the Issuer, any of the Guarantors or any Significant
Subsidiary or for all or substantially all of the property and assets of the
Issuer, any of the Guarantors or any Significant Subsidiary or (C) effects any
general assignment for the benefit of creditors. 


 


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


 


13.                                
No
Recourse Against Others.  No direct or indirect stockholder, employee, officer or
director, as such, past, present or future of the Issuer, the Guarantors or any
successor entity shall have any personal liability in respect of the Issuer’s
obligations or the obligations of the Guarantors under the Indenture or the
Notes solely by reason of his, her or its status as such stockholder, employee,
officer or director, except that this provision shall in no way limit the
obligation of any Guarantor pursuant to any Guarantee of the Notes.


 


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


 


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


 


16.                                
Additional
Rights of Holders of Transfer Restricted Notes.(7)  In addition to the rights provided to
Holders of Notes under the Indenture, Holders of Transfer Restricted Notes
shall have all the rights set forth in the Registration Rights Agreement dated
as of the date of the Indenture, by and among the Issuer, the Guarantors and
the Initial Purchaser (the “Registration
Rights Agreement”).


 


17.                                
CUSIP
Numbers. 
Pursuant to a recommendation promulgated by the Committee on Uniform Security
Identification Procedures, the Issuer has caused CUSIP numbers to be printed on
the Notes and the Trustee may use CUSIP numbers in notices of redemption as a
convenience to Holders.  No representation is made as to the accuracy of such
numbers either as printed on the Notes or as contained in any notice of
redemption and reliance may be placed only on the other identification numbers
placed thereon, and any such redemption shall not be affected by any defect in
or omission of such numbers.


 


18.                                
Notation
of Guarantee. 
As more fully set forth in the Indenture, to the extent permitted by law, each
of the Guarantors from time to time, in accordance with Article XI of the
Indenture, unconditionally and jointly and severally guarantees, to each


 















(7)          
To be included only on Transfer Restricted Notes.


 


A-13





















 


Holder of a Note authenticated and delivered by the
Trustee and to the Trustee and its successors and assigns, that:


 


By its execution of its Guarantee,
each of the Guarantors acknowledges and agrees that it receives substantial
benefits from the Issuer and that such party is providing its Guarantee for
good and valuable consideration, including, without limitation, such
substantial benefits and services.  Accordingly, subject to the provisions
of Article XI of the Indenture, each Guarantor, jointly and severally,
irrevocably hereby unconditionally guarantees on a senior secured basis to each
Holder of a Note authenticated and delivered by the Trustee and its successors
and assigns the Guarantee Obligations, which include: (i) the due and
punctual payment in full of the principal of and premium, if any, and Interest
and Liquidated Damages, if any, on the Notes, whether at maturity, by acceleration,
call for redemption, upon a Change of Control Offer, an Asset Sale Offer, an
Excess Cash Flow Offer, or otherwise, the due and punctual payment in full of
the interest on overdue principal of premium, if any, and Liquidated Damages,
if any, and (to the extent permitted by law) interest on any Interest on the
Notes and the due and punctual payment or performance, as applicable, of all
other obligations of the Issuer to the Holders or the Trustee under the Notes,
the Indenture, the Collateral Agreements and the Registration Rights Agreement
(including fees, expenses or other amounts) shall be promptly paid in full or
performed, all in accordance with the terms of the Indenture; and (ii) in
case of any extension of time of payment or renewal of any Notes or any of such
other obligations, that the same shall be promptly paid in full when due or
performed in accordance with the terms of the extension or renewal, whether at
stated maturity, by acceleration, call for redemption, upon a Change of
Control, an Asset Sale Offer, an Excess Cash Flow Offer, or otherwise, subject,
however, in the case of clauses (i) and (ii) above, to the limitations set
forth in Section 11.6 of the Indenture.


 


When a successor assumes
all the obligations of its predecessor under the Notes and the Indenture, the
predecessor may be released from those obligations.


 


19.                                
Governing
Law.  THE
INDENTURE, THE NOTES AND THE GUARANTEES SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK APPLICABLE TO CONTRACTS MADE
AND TO BE PERFORMED IN THE STATE OF NEW YORK, INCLUDING, WITHOUT LIMITATION,
SECTIONS 5-1401 AND 5-1402 OF THE NEW YORK GENERAL OBLIGATIONS LAW AND NEW YORK
CIVIL PRACTICE LAWS AND RULES 327(B); PROVIDED, THAT WITH RESPECT TO THE
CREATION, ATTACHMENT, PERFECTION,  PRIORITY, ENFORCEMENT OF AND REMEDIES
RELATING TO THE SECURITY INTEREST IN ANY REAL PROPERTY COLLATERAL, THE
GOVERNING LAW MAY BE THE LAWS OF THE JURISDICTIONS WHERE SUCH COLLATERAL IS
LOCATED WITHOUT REGARD TO THE CONFLICT OF LAW PROVISIONS THEREOF.


 


20.                                
Security.  This Note is Guaranteed and
secured by substantially all of the assets of the Issuer and the Subsidiaries,
subject to certain exceptions and limitations more fully set forth in the
Indenture and Collateral Agreements.


 


A-14





















 


21.                                
Certificate
And Opinion As To Conditions Precedent.  Upon any request or application by the Issuer to the
Trustee to take any action under the Indenture, the Issuer shall furnish to the
Trustee (i) an Officers’ Certificate in form and substance reasonably
satisfactory to the Trustee (which shall include the statements set forth in
Section 12.5 of the Indenture) stating that, in the opinion of the signers,
all conditions precedent and covenants, if any, provided for in the Indenture
relating to the proposed action have been satisfied; and (ii) an Opinion of
Counsel in form and substance reasonably satisfactory to the Trustee (which
shall include the statements set forth in Section 12.5 of the Indenture)
stating that, in the opinion of such counsel, all such conditions precedent and
covenants have been satisfied.


 


The Issuer will furnish
to any Holder upon written request and without charge a copy of the Indenture
and/or the Registration Rights Agreement.  Requests may be made to:


 


The Wornick
Company

10825 Kenwood Road

Cincinnati, Ohio 45242

Attention: Secretary


 


A-15





















 


Assignment
Form


 


To assign this Note, fill in the form below: (I) or
(We) assign and transfer this Note to 


 


	
   

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

  
	
   

  
	
   

  
	
   

  
	
   

  
	
   

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

  
	
   

  
	
  and irrevocably appoint

  	
   

  	
   

  



 


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


 


	
  Date:

  	
   

  	
   

  
	
   

  
	
   

  	
  Your Signature:

  	
   

  
	
   

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

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  



 


Signature Guarantee*


 


	
   

  



 


 















*NOTICE:  The Signature must be guaranteed by an
Institution which is a member of one of the following recognized signature
Guarantee Programs: (i) The Securities Transfer Agent Medallion Program
(STAMP); (ii) The New York Stock Exchange Medallion Program (MNSP);
(iii) The Stock Exchange Medallion Program (SEMP); or (iv) such other
guarantee program acceptable to the Trustee.


 


A-16
















 


Option
of Holder to Elect Purchase


 


If you want to elect to
have this Note purchased by the Issuer pursuant to Section 4.13, 4.14 or
4.22 of the Indenture, check the box below:


 


	
  Section 4.13 
  o

  	
   

  	
  Section 4.14 
  o

  	
   

  	
  Section 4.22 
  o

  



 


If you want to elect to
have only part of the Note purchased by the Issuer pursuant to
Section 4.13, 4.14 or 4.22 of the Indenture, state the amount you elect to
have purchased (in denominations of $1,000 only, except if you have elected to
have all of your Notes purchased): 
$                  


 


	
  Date:

  	
   

  	
   

  	
  Your Signature:

  	
   

  
	
   

  	
  (Sign exactly as
  your name appears on the Note)

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  



 


Social Security or
Tax Identification
No.:                     


 


Signature Guarantee*


 


	
   

  



 


 















*NOTICE:  The Signature must be guaranteed by an
Institution which is a member of one of the following recognized signature
Guarantee Programs: (i) The Securities Transfer Agent Medallion Program
(STAMP); (ii) The New York Stock Exchange Medallion Program (MNSP);
(iii) The Stock Exchange Medallion Program (SEMP); or (iv)  such
other guarantee program acceptable to the Trustee.


 


A-17
















 


SCHEDULE
OF EXCHANGES OF INTERESTS IN THE GLOBAL NOTE(8)


 


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


 


	
  Date of
  Exchange

  	
   

  	
  Amount
  of

  Decrease in

  Principal Amount of

  this Global Note

  	
   

  	
  Amount
  of

  Increase in

  Principal

  Amount of this

  Global Note

  	
   

  	
  Principal
  Amount of

  this Global Note

  Following Such

  Decrease or Increase

  	
   

  	
  Signature
  of

  Authorized Officer

  of

  Trustee or Note

  Custodian

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  



 


 















(8)                                 
This should be
included only if the Note is issued in global form.


 


A-18





















 


GUARANTEE


 


Each entity listed on the
signature page hereto (hereafter referred to as a “Guarantor,” which term
Guarantor includes any successors or assigns under the Indenture, dated as of
June 30, 2004, among the Issuer (defined below), the Guarantors (as defined
therein) and U.S. Bank National Association, as trustee (the “Indenture”), as supplemented by any
supplemental indentures thereto), has executed either the Indenture or a
supplemental indenture in substantially the form attached as Exhibit E to
the Indenture and has irrevocably and unconditionally guaranteed on a senior
secured basis the Guarantee Obligations (as defined in Section 11.1 of the
Indenture), which include (i) the due and punctual payment in full of the
principal of and premium, if any, and Interest and Liquidated Damages, if any,
on the 107/8% Senior Secured Notes due 2011 (the “Notes”) of The Wornick Company, a Delaware
corporation (the “Issuer,” which
term includes any successors under the Indenture), whether at maturity, by
acceleration, call for redemption, upon a Change of Control Offer, an Asset
Sale Offer, an Excess Cash Flow Offer or otherwise, the due and punctual payment
of interest on overdue principal of and premium, if any, Liquidated Damages, if
any, and (to the extent permitted by law) interest on any Interest on the
Notes, and the due and punctual payment or performance, as applicable, of all
other obligations of the Issuer to the Holders or the Trustee under the Notes,
the Indenture, the Collateral Agreements and the Registration Rights Agreement
(including fees, expenses or other amounts), all in accordance with the terms
of the Indenture, and (ii) in case of any extension of time of payment or
renewal of any Notes or any such other obligations, that the same shall be
promptly paid in full when due or performed in accordance with the terms of the
extension or renewal, whether at stated maturity, by acceleration, call for
redemption, upon a Change of Control Offer, an Asset Sale Offer, an Excess Cash
Flow Offer or otherwise, subject, however, in the case of clauses (i) and
(ii) above, to the limitations set forth in Section 11.6 of the Indenture.


 


The obligations of each
Guarantor to the Holders and to the Trustee pursuant to this Guarantee and the
Indenture are expressly set forth in Article XI of the Indenture and reference
is hereby made to such Indenture for the precise terms of this Guarantee.


 


No direct or indirect
stockholder, employee, officer or director, as such, past, present or future of
the Issuer, the Guarantors or any successor entity shall have any personal
liability in respect of the Issuer’s obligations or the obligations of the
Guarantors under the Indenture or the Notes solely by reason of his, her or its
status as such stockholder, employee, officer or director, except that this
provision shall in no way limit the obligation of any Guarantor pursuant to any
Guarantee of the Notes.


 


This is a continuing
Guarantee and shall remain in full force and effect and shall be binding upon
each Guarantor and its successors and assigns until full and final payment of
all of the Issuer’s obligations under the Notes and Indenture or until released
or legally defeased in accordance with the Indenture and shall inure to the
benefit of the successors and assigns of the Trustee and the Holders, and, in
the event of any transfer or assignment of rights by any Holder or the Trustee,
the rights and


 


A-19
















 


privileges herein conferred upon that party shall
automatically extend to and be vested in such transferee or assignee, all
subject to the terms and conditions hereof.  This is a Guarantee of
payment and performance and not of collectibility.


 


This Guarantee shall not
be valid or obligatory for any purpose until the certificate of authentication
on the Note upon which this Guarantee is noted shall have been executed by the
Trustee under the Indenture by the manual signature of one of its authorized
officers.


 


The obligations of each
Guarantor under this Guarantee shall be limited to the extent necessary to
insure that it does not constitute a fraudulent conveyance under applicable
law.


 


THE TERMS OF ARTICLE XI
OF THE INDENTURE ARE INCORPORATED HEREIN BY REFERENCE.


 


Capitalized terms used
herein have the same meanings given in the Indenture unless otherwise
indicated.


 


[signature page follows]


 


A-20
















 


IN WITNESS WHEREOF, each
Guarantor has caused this instrument to be duly executed.


 


	
  Dated:

  	
   

  	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  [NAME OF GUARANTOR]

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  [NAME OF GUARANTOR]

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  [NAME OF GUARANTOR]

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  



 





















 


EXHIBIT B


 


FORM
OF CERTIFICATE OF TRANSFER


 


The Wornick Company

10825 Kenwood Road


Cincinnati, Ohio 45242


 


U.S. Bank National Association 


60 Livingston Avenue


St. Paul, Minnesota
55107-2292


 


Re: 107/8%
Senior Secured Notes due 2011


 


Dear Sirs:


 


Reference is hereby made
to the Indenture, dated as of June 30, 2004 (as it may be amended or
supplemented from time to time, the “Indenture”),
among The Wornick Company, a Delaware corporation (the “Issuer,” which term includes any
successors under the Indenture), the Guarantors party thereto and U.S. Bank
National Association, as trustee.  Capitalized terms used but not defined
herein shall have the meanings given to them in the Indenture.  


 


                         ,
(the “Transferor”) owns and
proposes to transfer the Note[s] or interest in such Note[s] specified in Annex
A hereto, in the principal amount of
$                         
in such Note[s] or interests (the “Transfer”),
to
                      
(the “Transferee”), as further
specified in Annex A hereto.  In connection with the Transfer, the
Transferor hereby certifies that:


 


[CHECK ALL THAT APPLY]


 


1.              
o                                                    
Check if Transferee will take delivery of a beneficial
interest in the 144A Global Note or of a Definitive Note Pursuant to
Rule 144A. 
The Transfer is being effected pursuant to and in accordance with
Rule 144A under the United States Securities Act of 1933, as amended (the
“Securities Act”), and,
accordingly, the Transferor hereby further certifies that the beneficial
interest or Definitive Note is being transferred to a Person that the
Transferor reasonably believed and believes is purchasing the beneficial
interest or Definitive Note for its own account, or for one or more accounts
with respect to which such Person exercises sole investment discretion, and
such Person and each such account is a “qualified institutional buyer” within
the meaning of Rule 144A in a transaction meeting the requirements of
Rule 144A and such Transfer is in compliance with any applicable blue sky
securities laws of any State of the United States.  Upon consummation of
the proposed Transfer in accordance with the terms of the Indenture, the
transferred beneficial interest or Definitive Note will be subject to the
restrictions on transfer enumerated in the Private Placement Legend printed on
the 144A Global Note and/or the Definitive Note and in the Indenture and the
Securities Act.


 


B-1





















 


2.              
o                                                    
Check if Transferee will take delivery of a beneficial
interest in the Regulation S Global Note or of a Definitive Note pursuant
to Regulation S.  The Transfer is being effected pursuant to and in accordance
with Rule 903 or Rule 904 under the Securities Act and, accordingly,
the Transferor hereby further certifies that (i) the Transfer is not being
made to a Person in the United States and (x) at the time the buy order was
originated, the Transferee was outside the United States or such Transferor and
any Person acting on its behalf reasonably believed and believes that the
Transferee was outside the United States or (y) the transaction was executed
in, on or through the facilities of a designated offshore securities market and
neither such Transferor nor any Person acting on its behalf knows that the
transaction was prearranged with a buyer in the United States, (ii) no
directed selling efforts have been made in contravention of the requirements of
Rule 903(b) or Rule 904(b) of Regulation S under the Securities
Act, (iii) the transaction is not part of a plan or scheme to evade the
registration requirements of the Securities Act and (iv) if the proposed
transfer is being made prior to the expiration of the Distribution Compliance
Period, the transfer is not being made to a U.S. Person or for the account or
benefit of a U.S. Person (other than an Initial Purchaser) and the interest
transferred will be held immediately thereafter through Euroclear or
Clearstream.  Upon consummation of the proposed transfer in accordance
with the terms of the Indenture, the transferred beneficial interest or
Definitive Note will be subject to the restrictions on Transfer enumerated in
the Private Placement Legend printed on the Regulation S Global Note
and/or the Definitive Note and in the Indenture and the Securities Act.


 


3.              
o                                                    
Check if Transferee will take delivery of a beneficial
interest in a Global Note or of a Definitive Note pursuant to any provision of
the Securities Act other than Rule 144A or Regulation S.  The Transfer is being effected in
compliance with the transfer restrictions applicable to beneficial interests in
Restricted Global Notes and Restricted Definitive Notes and pursuant to and in
accordance with the Securities Act and any applicable blue sky securities laws
of any State of the United States, and accordingly the Transferor hereby
further certifies that (check one):


 


(a)                               
o                                         
Such Transfer is
being effected pursuant to and in accordance with Rule 144 under the
Securities Act; or


 


(b)                              
o                                         
Such Transfer is
being effected to the Issuer or a subsidiary thereof; or


 


(c)                               
o                                         
Such Transfer is
being effected pursuant to an effective registration statement under the
Securities Act and in compliance with the prospectus delivery requirements of
the Securities Act; or


 


(d)                              
o                                         
such Transfer is
being effected to an Institutional Accredited Investor and pursuant to an
exemption from the registration requirements of the Securities Act other than
Rule 144A, Rule 144 or Rule 904, and the Transferor hereby
further certifies that it has not engaged in any general solicitation within
the meaning of Regulation D under the Securities Act and the Transfer
complies with the transfer restrictions applicable to beneficial interests in a
Restricted Global Note


 


B-2





















 


or Restricted Definitive Notes and the requirements of
the exemption claimed, which certification is supported by (1) a
certificate executed by the Transferee in a form of Exhibit D to the
Indenture and (2) an Opinion of Counsel provided by the Transferor or the
Transferee (a copy of which the Transferor has attached to this certification
and provided to the Issuer, which has confirmed its acceptability), to the
effect that such Transfer is in compliance with the Securities Act.  


 


Upon consummation of the
proposed transfer in accordance with the terms of the Indenture, the
transferred beneficial interest or Definitive Note will be subject to the
restrictions on transfer enumerated in the Private Placement Legend printed on
the Global Note and/or Definitive Notes and in the Indenture and the Securities
Act.


 


4.              
o                                                    
Check if Transferee will take delivery of a beneficial
interest in an Unrestricted Global Note or of an Unrestricted Definitive Note.


 


(a)                                                 
o                                     
Check if Transfer is Pursuant to Rule 144.  (i) The Transfer is being
effected pursuant to and in accordance with Rule 144 under the Securities
Act and in compliance with the transfer restrictions contained in the Indenture
and any applicable blue sky securities laws of any State of the United States
and (ii) the restrictions on transfer contained in the Indenture and the
Private Placement Legend are not required in order to maintain compliance with
the Securities Act.  Upon consummation of the proposed Transfer in
accordance with the terms of the Indenture, the transferred beneficial interest
or Definitive Note will no longer be subject to the restrictions on transfer
enumerated in the Private Placement Legend printed on the Restricted Global
Notes, on Restricted Definitive Notes and in the Indenture and the Securities
Act.


 


(b)                                                
o                                     
Check if Transfer is Pursuant to Regulation S.  (i) The Transfer is being
effected pursuant to and in accordance with Rule 903 or Rule 904
under the Securities Act and in compliance with the transfer restrictions contained
in the Indenture and any applicable blue sky securities laws of any State of
the United States and (ii) the restrictions on transfer contained in the
Indenture and the Private Placement Legend are not required in order to
maintain compliance with the Securities Act.  Upon consummation of the
proposed Transfer in accordance with the terms of the Indenture, the
transferred beneficial interest or Definitive Note will no longer be subject to
the restrictions on transfer enumerated in the Private Placement Legend printed
on the Restricted Global Notes, on Restricted Definitive Notes and in the
Indenture and the Securities Act.


 


(c)                                                 
o                                     
Check if Transfer is Pursuant to Other Exemption.  (i) The Transfer is being
effected pursuant to and in compliance with an exemption from the registration
requirements of the Securities Act other than Rule 144, Rule 903 or
Rule 904 and in compliance with the transfer restrictions contained in the
Indenture and any applicable blue sky securities laws of any State of the
United States and (ii) the restrictions on transfer contained in the
Indenture and the Private Placement Legend are not required in order to
maintain compliance with the Securities Act.  Upon consummation of the
proposed Transfer in accordance with the terms of the Indenture, the
transferred beneficial interest or Definitive Note will not be subject to the
restrictions


 


B-3





















 


on transfer enumerated in the Private Placement Legend
printed on the Restricted Global Notes or Restricted Definitive Notes and in
the Indenture.


 


[signature page follows]


 


B-4
















 


 


This certificate and the
statements contained herein are made for your benefit and the benefit of the
Issuer.


 


 


	
   

  	
   

  	
  Dated:

  	
   

  
	
  [Insert Name of
  Transferor]

  
	
   

  
	
   

  
	
  By:

  	
   

  	
   

  
	
   

  	
  Name:

  
	
   

  	
  Title:

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  



 


B-5





















 


ANNEX A TO
CERTIFICATE OF TRANSFER


 


 


 


 


 


	
  1.

  	
  The Transferor owns and
  proposes to transfer the following:

  
	
   

  	
   

  
	
  [[CHECK ONE OF
  (a) OR (b)]

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  (a)

  	
  o

  	
  a beneficial interest
  in

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  (i)

  	
  o

  	
  144A Global Note, or

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  (ii)

  	
  o

  	
  501 Global Note, or

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  (iii)

  	
  o

  	
  Reg S Global Note;
  or

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  (b)

  	
  o

  	
  a Restricted Definitive
  Note.

  
	
   

  	
   

  	
   

  	
   

  
	
  2.

  	
  After the Transfer the
  Transferee will hold:

  
	
   

  	
   

  
	
  [CHECK ONE]

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  (a)

  	
  o

  	
  a beneficial interest
  in the:

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  (i)

  	
  o

  	
  144A Global Note, or

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  (ii)

  	
  o

  	
  501 Global Note, or

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  (iii)

  	
  o

  	
  Reg S Global Note,

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  (iv)

  	
  o

  	
  Unrestricted Global
  Note; or

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  (b)

  	
  o

  	
  a Restricted Definitive
  Note; or

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  (c)

  	
  o

  	
  an Unrestricted
  Definitive Note,

  



 


in accordance with the terms of the Indenture.


 


B-6





















 


EXHIBIT C


 


FORM
OF CERTIFICATE OF EXCHANGE


 


The Wornick Company


10825 Kenwood Road


Cincinnati, Ohio 45242


 


U.S. Bank National Association


60 Livingston Avenue


St. Paul, Minnesota
55107-2292


 


Re:  107/8%
Senior Secured Notes due 2011


 


Dear Sirs:


 


Reference is hereby made
to the Indenture, dated as of June 30, 2004 (as it may be amended and
supplemented from time to time, the “Indenture”),
among The Wornick Company, a Delaware corporation (the “Issuer,” which term includes any
successors under the Indenture), the Guarantors party thereto and U.S. Bank
National Association, as trustee.  Capitalized terms used but not defined
herein shall have the meanings given to them in the Indenture.


 


                      ,
(the “Owner”) owns and proposes
to exchange the Note[s] or interest in such Note[s] specified herein, in the
principal amount of
$                      
in such Note[s] or interests (the “Exchange”). 
In connection with the Exchange, the Owner hereby certifies that:


 


1.  Exchange of Restricted
Definitive Notes or Beneficial Interests in a Restricted Global Note for
Unrestricted Definitive Notes or Beneficial Interests in an Unrestricted Global
Note.


 


(a)                                 
o                                   
Check if Exchange is from beneficial interest in a
Restricted Global Note to beneficial interest in an Unrestricted Global Note.  In connection with the Exchange of
the Owner’s beneficial interest in a Restricted Global Note for a beneficial
interest in an Unrestricted Global Note in an equal principal amount, the Owner
hereby certifies (i) the beneficial interest is being acquired for the
Owner’s own account without transfer, (ii) such Exchange has been effected
in compliance with the transfer restrictions applicable to the Restricted
Global Notes and pursuant to and in accordance with the United States
Securities Act of 1933, as amended (the “Securities
Act”), (iii) the restrictions on transfer contained in the
Indenture and the Private Placement Legend are not required in order to
maintain compliance with the Securities Act and (iv) the beneficial
interest in an Unrestricted Global Note is being acquired in compliance with
any applicable blue sky securities laws of any State of the United States.


 


(b)                                
o                                   
Check if Exchange is from beneficial interest in a
Restricted Global Note to Unrestricted Definitive Note.  In connection with the


 


C-1
















 


Exchange of the Owner’s beneficial interest in a
Restricted Global Note for an Unrestricted Definitive Note, the Owner hereby
certifies (i) the Definitive Note is being acquired for the Owner’s own
account without transfer, (ii) such Exchange has been effected in
compliance with the transfer restrictions applicable to the Restricted Global
Notes and pursuant to and in accordance with the Securities Act, (iii) the
restrictions on transfer contained in the Indenture and the Private Placement
Legend are not required in order to maintain compliance with the Securities Act
and (iv) the Unrestricted Definitive Note is being acquired in compliance
with any applicable blue sky securities laws of any State of the United States.


 


(c)                                 
o                                   
Check if Exchange is from Restricted Definitive Note to
beneficial interest in an Unrestricted Global Note.  In connection with the Owner’s
Exchange of a Restricted Definitive Note for a beneficial interest in an
Unrestricted Global Note, the Owner hereby certifies (i) the beneficial
interest is being acquired for the Owner’s own account without transfer,
(ii) such Exchange has been effected in compliance with the transfer
restrictions applicable to Restricted Definitive Notes and pursuant to and in
accordance with the Securities Act, (iii) the restrictions on transfer
contained in the Indenture and the Private Placement Legend are not required in
order to maintain compliance with the Securities Act and (iv) the
beneficial interest is being acquired in compliance with any applicable blue sky
securities laws of any State of the United States.


 


(d)                                
o                                   
Check if Exchange is from Restricted Definitive Note to
Unrestricted Definitive Note.  In connection with the Owner’s Exchange of a
Restricted Definitive Note for an Unrestricted Definitive Note, the Owner
hereby certifies (i) the Unrestricted Definitive Note is being acquired
for the Owner’s own account without transfer, (ii) such Exchange has been
effected in compliance with the transfer restrictions applicable to Restricted
Definitive Notes and pursuant to and in accordance with the Securities Act,
(iii) the restrictions on transfer contained in the Indenture and the
Private Placement Legend are not required in order to maintain compliance with
the Securities Act and (iv) the Unrestricted Definitive Note is being
acquired in compliance with any applicable blue sky securities laws of any
State of the United States.


 


2.  Exchange of Restricted Definitive
Notes or Beneficial Interests in Restricted Global Notes for Restricted
Definitive Notes or Beneficial Interests in Restricted Global Notes.


 


(a)                                 
o                                   
Check if Exchange is from beneficial interest in a
Restricted Global Note to Restricted Definitive Note.  In connection with the Exchange of
the Owner’s beneficial interest in a Restricted Global Note for a Restricted Definitive
Note with an equal principal amount, the Owner hereby certifies that
(i) the Restricted Definitive Note is being acquired for the Owner’s own
account without transfer and (ii) such Exchange has been effected in
compliance with the transfer restrictions applicable to the Restricted Global
Notes and pursuant to and in accordance with the Securities Act, and in
compliance with any applicable blue sky securities laws of any State of the
United States.  Upon consummation of the proposed Exchange in accordance
with the terms of the Indenture, the Restricted Definitive Note issued will
continue to be


 


C-2





















 


subject to the restrictions on transfer enumerated in
the Private Placement Legend printed on the Restricted Definitive Note and in
the Indenture and the Securities Act.


 


(b)                                
o                                   
Check if Exchange is from Restricted Definitive Note to
beneficial interest in a Restricted Global Note.  In connection with the Exchange of
the Owner’s Restricted Definitive Note for a beneficial interest in the: 
[CHECK ONE] o 144A Global Note, o Reg S Global Note, or o 501 Global Note 


 


with an equal principal amount, the Owner hereby
certifies (i) the beneficial interest is being acquired for the Owner’s
own account without transfer and (ii) such Exchange has been effected in
compliance with the transfer restrictions applicable to the Restricted Global
Notes and pursuant to and in accordance with the Securities Act, and in
compliance with any applicable blue sky securities laws of any State of the
United States.  Upon consummation of the proposed Exchange in accordance
with the terms of the Indenture, the beneficial interest issued will be subject
to the restrictions on transfer enumerated in the Private Placement Legend
printed on the relevant Restricted Global Note and in the Indenture and the
Securities Act.


 


[signature page follows]


 


C-3
















 


This certificate and the
statements contained herein are made for your benefit and the benefit of the
Issuer.


 


 


	
   

  	
   

  
	
  [Insert Name of Owner]

  
	
   

  
	
   

  
	
  By:

  	
   

  	
   

  
	
   

  	
  Name:

  
	
   

  	
  Title:

  
	
   

  	
   

  
	
   

  	
   

  
	
  Dated:

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  



 


C-4





















 


EXHIBIT D


 


FORM
OF CERTIFICATE FROM ACQUIRING


INSTITUTIONAL
ACCREDITED INVESTOR


 


The Wornick Company


10825 Kenwood Road


Cincinnati, Ohio 45242


 


U.S. Bank National
Association


60 Livingston Avenue


St. Paul, MN 55107-2292


Ladies and Gentlemen:


 


Reference is hereby made
to the Indenture, dated as of June 30, 2004 (the “Indenture”), between The Wornick Company, a Delaware
corporation (the “Issuer”), the
Guarantors party thereto and U.S. Bank National Association, as trustee (the “Trustee”).  Capitalized terms used
but not defined herein shall have the meanings given to them in the Indenture.


 


In connection with our
proposed purchase of
$                   
aggregate principal amount of: (a) a beneficial interest in a Global Note,
or (b) a Definitive Note, we confirm that:


 


1.                                      
We understand and
acknowledge that the Notes have not been registered under the Securities Act of
1933, as amended (the “Securities Act”),
or any other applicable securities law, and may not be offered, sold or
otherwise transferred except in compliance with the registration requirements
of the Securities Act or any other applicable securities law, pursuant to an
exemption therefrom and in each case in compliance with the conditions for
transfer set forth below.


 


2.                                      
We are not an
affiliate (as defined in Rule 144 under the Securities Act) of the Issuer or
acting on behalf of the Issuer, and we are an institutional “accredited
investor” under the Securities Act within the meaning of subparagraph (a) (1),
(2), (3) or (7) of Rule 501 under the Securities Act (“Rule 501”) and, if the Notes are to be
purchased for one or more accounts (“investor
accounts”) for which we are acting as fiduciary or agent, each such
investor account is an institutional “accredited investor” on a like basis. We
have such knowledge and experience in financial and business matters as to be
capable of evaluating the merits and risks of purchasing the Notes and invest
in or purchase securities similar to the Notes in the normal course of our
business. We and any investor accounts for which we are acting are each aware
that we may be required, and are


 


D-1





















 


each able, to bear the economic risk of our or its
investment in the Notes for an indefinite period of time, including the risk of
an entire loss of our or such investor account’s investment in the Notes.


 


3.                                      
We acknowledge that:
(a) neither the Issuer nor any person representing the Issuer has made any
representation to us with respect to the Issuer or the offering or sale of any
Notes and (b) we have had access to such financial and other information
concerning the Issuer and the Notes as we have deemed necessary in connection
with our decision to purchase the Notes, including an opportunity to ask
questions of and request information from the Issuer.


 


4.                                      
We are purchasing the
Notes for our own account, or for one or more investor accounts for which we
are acting as a fiduciary or agent, in each case for investment, and not with a
view to, or for offer or sale in connection with, any distribution thereof in
violation of the Securities Act, subject to any requirement of law that the
disposition of our property or the property of such investor account or
accounts be at all times within our or their control and subject to our or
their ability to resell such Notes pursuant to Rule 144A under the Securities
Act (“Rule 144A”) or any
exemption from registration available under the Securities Act.


 


5.                                      
We agree on our own
behalf and on behalf of any investor account for which we are purchasing Notes
to offer, sell or otherwise transfer such Notes prior to the date which is two
years (or such other period that may hereafter be provided under Rule 144(k)
under the Securities Act as permitting resales of restricted securities by
non-affiliates without restriction) after the later of the date of original
issue and the last date on which the Issuer or any affiliate of the Issuer was
the owner of such Notes (or any predecessor thereto) (the “Resale Restriction Termination Date”) only
(a) to the Issuer or any subsidiary of the Issuer, (b) pursuant to a
registration statement that has been declared effective under the Securities
Act, (c) for so long as the Notes are eligible for resale pursuant to Rule
144A, to a person we reasonably believe is a “qualified institutional buyer” as
defined in Rule 144A (a “QIB”)
that purchases for its own account or for the account of a QIB and to whom
notice is given that the transfer is being made in reliance on Rule 144A, (d)
pursuant to offers and sales to non-U.S. persons that occur outside the United
States in accordance with Regulation S under the Securities Act, (e) to an
institutional “accredited investor” within the meaning of subparagraph (a) (1),
(2), (3) or (7) of Rule 501 that is acquiring the Notes for its own account, or
for the account of such an institutional “accredited investor,” for investment
purposes, and not with a view to, or for offer or sale in connection with, any
distribution in violation of the Securities Act, or (f) pursuant to another
available exemption from the registration requirements of the Securities Act,
subject in each of the foregoing cases to any


 


D-2





















 


requirement of law that the disposition of our
property or the property of such investor account or accounts be at all times
within our or their control and in each case in compliance with applicable
securities laws of any U.S. state or any other applicable jurisdiction. The
foregoing restrictions on resale will not apply subsequent to the Resale
Restriction Termination Date. If any resale or other transfer of the Notes is
proposed to be made pursuant to clause (d), (e) or (f) above prior to the
Resale Restriction Termination Date, the transferor shall deliver a letter from
the transferee substantially in the form of this letter to the Issuer and the
Trustee, which shall provide, among other things, that the transferee is an
institutional “accredited investor” within the meaning of subparagraph (a) (1),
(2), (3) or (7) of Rule 501 and that it is acquiring such Notes for investment
purposes and not for distribution in violation of the Securities Act. Each
purchaser acknowledges that the Issuer and the Trustee reserve the right prior
to the offer, sale or other transfer made prior to the Resale Termination Date
pursuant to clause (d), (e) or (f) above to require the delivery of an opinion
of counsel, certifications and/or other information satisfactory to each of
them.


 


6.                                      
We are not acquiring
the Notes for or on behalf of any pension or welfare plan (as defined in
Section 3 of the Employee Retirement Income Security Act of 1974, as amended (“ERISA”)) or other arrangement that is
subject to ERISA or Section 4975 of the Internal Revenue Code (a “plan”) or any entity whose underlying
assets include assets of a plan pursuant to 29 C.F.R. Section 2510.3-101 or
otherwise, except that such a purchase or transfer for or on behalf of a
pension or welfare plan shall be permitted to the extent: 


 


(a)                                 
such purchase or
transfer is being made by or on behalf of a bank collective investment fund
maintained by the purchaser or transferee in which no plan (together with any
other plans maintained by the same employer or employee organization) has an
interest in excess of 10% of the total assets in such collective investment
fund and the conditions of Section III of Prohibited Transaction Class
Exemption 91-38 issued by the Department of Labor are satisfied; 


 


(b)                                
such purchase or
transfer is made by or on behalf of an insurance company pooled separate account
maintained by the purchaser or transferee in which, at any time while the notes
are outstanding, no plan (together with any other plans maintained by the same
employer or employee organization) has an interest in excess of 10% of the
total of all assets in such pooled separate account and the conditions of
Section III of Prohibited Transaction Class Exemption 90-1 issued by the
Department of Labor are satisfied; 


 


(c)                                 
such purchase or
transfer is made on behalf of a plan by (1) an investment advisor
registered under the Investment Advisers Act of


 


D-3





















 


1940 that had as of the last day of its most recent
year total assets under its management and control in excess of $50,000,000 and
had stockholders’ or partners’ equity in excess of $750,000, as shown in its
most recent balance sheet prepared in accordance with generally accepted
accounting principles, or (2) a bank as defined in Section 202
(a) (2) of the Investment Advisers Act of 1940 with equity capital in
excess of $1,000,000 as of the last day of its most recent year, or (3) an
insurance company which is qualified under the laws of more than one state to
manage, acquire or dispose of any assets of a plan, which insurance company has
as of the last day of its most recent year, net worth in excess of $1,000,000
and which is subject to supervision and examination by state authority having
supervision over insurance companies and, in any case, such investment advisor,
bank or insurance company is otherwise a qualified professional asset manager,
as such term is used in Prohibited Transaction Class Exemption 84-14 issued by
the Department of Labor, and the assets of such plan when combined with the
assets of other plans established or maintained by the same employer (or
affiliate thereof) or employee organization and managed by such investment
advisor, bank or insurance company, do not represent more than 20% of the total
client assets managed by such investment advisor, bank or insurance company,
and the conditions of Section I of such exemption are otherwise satisfied;



 


(d)                                
to the extent such
plan is a governmental plan (as defined in Section 3 of ERISA) which is
not subject to the provisions of Title I of ERISA or Section 401 of the Internal
Revenue Code; 


 


(e)                                 
to the extent such
purchase is made by or on behalf of an insurance company with assets in its
insurance company general account, and the conditions of Prohibited Transaction
Class Exemption 95-60 issued by the Department of Labor are satisfied; 


 


(f)                                   
to the extent such
purchase is made on behalf of a plan by an in-house asset manager and the
conditions of Part I of Prohibited Transactions Class Exemption 96-23
issued by the Department of Labor are satisfied; or 


 


(g)                                
such purchase would
not otherwise constitute a non-exempt prohibited transaction.


 


7.                                      
We understand that
the Notes will be delivered in registered form only and that the certificates
delivered to us in respect of the Notes will contain a legend substantially to
the following effect:


 


D-4





















 


THIS SECURITY HAS NOT BEEN REGISTERED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), OR ANY STATE
SECURITIES LAWS. NEITHER THIS SECURITY NOR ANY INTEREST OR PARTICIPATION HEREIN
MAY BE REOFFERED, SOLD, ASSIGNED, TRANSFERRED, PLEDGED, ENCUMBERED OR OTHERWISE
DISPOSED OF IN THE ABSENCE OF SUCH REGISTRATION OR UNLESS SUCH TRANSACTION IS
EXEMPT FROM, OR NOT SUBJECT TO, REGISTRATION. 


 


THE HOLDER OF THIS SECURITY BY ITS ACCEPTANCE HEREOF
(1) REPRESENTS THAT (X) IT IS A “QUALIFIED INSTITUTIONAL BUYER” (AS DEFINED IN
RULE 144A UNDER THE SECURITIES ACT), (Y) IT IS A NON-U.S. PURCHASER AND IS
ACQUIRING THIS SECURITY IN AN OFFSHORE TRANSACTION WITHIN THE MEANING OF
REGULATION S UNDER THE SECURITIES ACT, OR (Z) IT IS AN INSTITUTIONAL
“ACCREDITED INVESTOR” WITHIN THE MEANING OF SUBPARAGRAPH (a)(1), (2), (3) OR
(7) OF RULE 501 UNDER THE SECURITIES ACT, AND (2) AGREES TO OFFER, SELL OR
OTHERWISE TRANSFER SUCH SECURITY, PRIOR TO THE DATE THAT IS TWO YEARS (OR SUCH
OTHER PERIOD THAT MAY HEREAFTER BE PROVIDED UNDER RULE 144(k) UNDER THE
SECURITIES ACT AS PERMITTING RESALES OF RESTRICTED SECURITIES BY NON-AFFILIATES
WITHOUT RESTRICTION) AFTER THE LATER OF THE ORIGINAL ISSUE DATE HEREOF AND THE
LAST DATE ON WHICH THE ISSUER OR ANY AFFILIATE OF THE ISSUER WAS THE OWNER OF
THIS SECURITY (OR ANY PREDECESSOR OF SUCH SECURITY), ONLY (A) TO THE ISSUER OR
ANY SUBSIDIARIES OF THE ISSUER, (B) PURSUANT TO A REGISTRATION STATEMENT THAT
HAS BEEN DECLARED EFFECTIVE UNDER THE SECURITIES ACT, (C) FOR SO LONG AS THIS
SECURITY IS ELIGIBLE FOR RESALE PURSUANT TO RULE 144A UNDER THE SECURITIES ACT,
TO A PERSON IT REASONABLY BELIEVES IS A “QUALIFIED INSTITUTIONAL BUYER” AS
DEFINED IN RULE 144A UNDER THE SECURITIES ACT THAT PURCHASES FOR ITS OWN
ACCOUNT OR FOR THE ACCOUNT OF A QUALIFIED INSTITUTIONAL BUYER TO WHOM NOTICE IS
GIVEN THAT THE TRANSFER IS BEING MADE IN RELIANCE ON RULE 144A UNDER THE
SECURITIES ACT, (D) PURSUANT TO OFFERS AND SALES TO NON-U.S. PERSONS THAT OCCUR
OUTSIDE THE UNITED STATES WITHIN THE MEANING OF REGULATION S UNDER THE
SECURITIES ACT, (E) TO AN INSTITUTIONAL “ACCREDITED INVESTOR” WITHIN THE
MEANING OF SUBPARAGRAPH (a)(1), (2), (3) OR (7) OF RULE 501 UNDER THE
SECURITIES ACT THAT IS ACQUIRING THIS SECURITY FOR ITS OWN ACCOUNT, OR


 


D-5





















 


FOR THE ACCOUNT OF SUCH AN INSTITUTIONAL “ACCREDITED
INVESTOR,” FOR INVESTMENT PURPOSES AND NOT WITH A VIEW TO, OR FOR OFFER OR SALE
IN CONNECTION WITH, ANY DISTRIBUTION IN VIOLATION OF THE SECURITIES ACT, OR (F)
PURSUANT TO ANOTHER AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF
THE SECURITIES ACT, SUBJECT TO THE ISSUER’S AND THE TRUSTEE’S RIGHT PRIOR TO
ANY SUCH OFFER, SALE OR TRANSFER PURSUANT TO CLAUSE (D), (E), OR (F) TO REQUIRE
THE DELIVERY OF AN OPINION OF COUNSEL, CERTIFICATIONS AND/OR OTHER INFORMATION
SATISFACTORY TO EACH OF THEM, AND IN EACH OF THE FOREGOING CASES, A CERTIFICATE
OF TRANSFER IN THE FORM APPEARING ON THIS SECURITY IS COMPLETED AND DELIVERED
BY THE TRANSFEROR TO THE TRUSTEE AND IN EACH CASE IN ACCORDANCE WITH APPLICABLE
SECURITIES LAWS OF ANY U.S. STATE OR ANY OTHER APPLICABLE JURISDICTION.


 


8.                                      
We acknowledge that
you and others will rely upon the truth and accuracy of the foregoing
representations, warranties, acknowledgements and agreements and agrees that,
if any representations, warranties, acknowledgements and agreements deemed to
have been made by us are no longer accurate, we shall promptly notify the
Issuer. If we are acquiring any of the Notes as a fiduciary or agent for one or
more investor accounts, we represent that we have sole investment discretion
with respect to each such account and we have full power to make the foregoing
representations, warranties, acknowledgements and agreements on behalf of each
such investor account.


 


9.                                      
Upon purchase, the
Notes would be registered in the name of the undersigned:


 


Name:


Address:


Taxpayer ID Number:


 


10.                                
If we are acquiring
any of the Notes as a fiduciary or agent for one or more investor accounts, we
represent that we have sole investment discretion with respect to each such
account and we have full power to make the foregoing acknowledgments,
representations, warranties and agreements on behalf of each such investor
account.


 


THIS
LETTER SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE
STATE OF NEW YORK APPLICABLE TO CONTRACTS MADE AND TO BE PERFORMED IN


 


D-6





















 


NEW
YORK, INCLUDING, WITHOUT LIMITATION, SECTIONS 5-1401 AND 5-1402 OF THE NEW YORK
GENERAL OBLIGATIONS LAW AND NEW YORK CIVIL PRACTICE LAWS AND RULES 327(B).


 


[signature page
follows]


 


D-7





















 


You
are entitled to rely upon this letter and are irrevocably authorized to produce
this letter or a copy hereof to any interested party in any administrative or
legal proceedings or official inquiry with respect to the matters covered
hereby.


 


 


	
   

  	
   

  
	
   

  	
  Name of Accredited
  Investor

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Dated:          ,
  200[   ]

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  



 


D-8





















 


EXHIBIT E

FORM OF SUPPLEMENTAL INDENTURE

TO BE DELIVERED BY SUBSEQUENT

GUARANTORS


 


Supplemental Indenture
(this “Supplemental Indenture”),
dated as of        , among  (i) The
Wornick Company, a Delaware corporation (the “Issuer,”
which term includes any successors under the Indenture, as defined below), (ii)
                              ,
a subsidiary of the Issuer (the “Guaranteeing
Subsidiary”) and (iii) U.S. Bank National Association, as trustee
under the Indenture (the “Trustee”).


 


W I  T  N  E  S
S  E  T  H


 


WHEREAS, the Issuer has
heretofore executed and delivered to the Trustee an indenture (as it may be
amended or supplemented from time to time, the “Indenture”), dated as of June 30, 2004, providing for the
issuance of 107/8% Senior Secured Notes due 2011 (the “Notes”);


 


WHEREAS,
Section 11.4 of the Indenture provides that under certain circumstances
the Guaranteeing Subsidiary shall execute and deliver to the Trustee a
supplemental indenture and a Guarantee pursuant to which any newly-acquired or
created Guarantor shall unconditionally guarantee all of the Issuer’s
obligations under the Notes and the Indenture on the terms and conditions set
forth herein and in such Guarantee; and


 


WHEREAS, pursuant to
Section 9.3 of the Indenture, the Trustee is authorized to execute and
deliver this Supplemental Indenture.


 


NOW THEREFORE, in
consideration of the foregoing and for other good and valuable consideration,
the receipt of which is hereby acknowledged, the Guaranteeing Subsidiary and
the Trustee mutually covenant and agree for the equal and ratable benefit of
the Holders of the Notes as follows:


 


1.                                      
Capitalized
Terms. 
Capitalized terms used herein without definition shall have the meanings
assigned to them in the Indenture.


 


2.                                      
Joinder
to Indenture. 
Each of the parties hereto hereby agrees to become bound by the terms,
conditions and other provisions of the Indenture with all attendant rights,
duties and obligations stated therein, with the same force and effect as if
originally named as a Guarantor therein and as if such party executed the
Indenture on the date thereof.


 


3.                                      
Agreement
to Guarantee. 
The Guaranteeing Subsidiary irrevocably and unconditionally guarantees the
Guarantee Obligations, which include (i) the due and punctual payment of
the principal of and premium, if any, and Interest and Liquidated Damages, if
any, on the Notes, whether at maturity, by acceleration, call for redemption,
upon a Change of Control Offer, an Asset Sale Offer, an Excess Cash Flow Offer
or otherwise, the due and punctual payment of interest on the overdue principal
of and premium, if any, and (to the extent permitted by law) interest on any
Interest on the


 


E-1





















 


Notes, and the due and punctual performance of all
other obligations of the Issuer, to the Holders or the Trustee all in
accordance with the terms set forth in Article XI of the Indenture, and
(ii) in case of any extension of time of payment or renewal of any Notes
or any such other obligations, that the same will be promptly paid in full when
due or performed in accordance with the terms of the extension or renewal,
whether at stated maturity, by acceleration, call for redemption, upon a Change
of Control Offer, an Asset Sale Offer, an Excess Cash Flow Offer or otherwise.


 


The obligations of the
Guaranteeing Subsidiary to the Holders and to the Trustee pursuant to this
Supplemental Indenture and the Indenture are expressly set forth in Article XI
of the Indenture and reference is hereby made to such Indenture for the precise
terms of the Guarantee. 


 


No direct or indirect
stockholder, incorporator, controlling Person, employee, officer or director,
as such, past, present or future of the Issuer, the Guarantors or any successor
entity shall have any personal liability in respect of the Issuer’s obligations
or the obligations of the Guarantors under the Indenture, the Notes, the
Guarantees, the Registration Rights Agreement, the Collateral Agreements or the
Intercreditor Agreement solely by reason of his, her or its status as such
stockholder, incorporator, controlling Person, employee, officer or director,
except that provision shall in no way limit the obligation of any Guarantor
pursuant to any Guarantee of the Notes.


 


This is a continuing
Guarantee and shall remain in full force and effect and shall be binding upon
each Guarantor and its successors and assigns until full and final payment of
all of the Issuer’s obligations under the Notes and Indenture or until released
or legally defeased in accordance with the Indenture and shall inure to the
benefit of the successors and assigns of the Trustee and the Holders, and, in
the event of any transfer or assignment of rights by any Holder or the Trustee,
the rights and privileges herein conferred upon that party shall automatically
extend to and be vested in such transferee or assignee, all subject to the
terms and conditions hereof.  This is a Guarantee of payment and
performance and not of collectibility.


 


The obligations of the
Guaranteeing Subsidiary under its Subsidiary Guarantee shall be limited to the
extent necessary to insure that it does not constitute a fraudulent conveyance
under applicable law.


 


THE TERMS OF ARTICLE XI
OF THE INDENTURE ARE INCORPORATED HEREIN BY REFERENCE.


 


4.                                      
NEW
YORK LAW TO GOVERN. 
THIS SUPPLEMENTAL INDENTURE SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE
WITH, THE LAWS OF THE STATE OF NEW YORK APPLICABLE TO CONTRACTS MADE AND TO BE
PERFORMED IN THE STATE OF NEW YORK, INCLUDING, WITHOUT LIMITATION, SECTIONS
5-1401 AND 5-1402 OF THE NEW YORK GENERAL OBLIGATIONS LAW AND NEW YORK CIVIL
PRACTICE LAWS AND RULES 327(B); PROVIDED, THAT WITH RESPECT TO THE CREATION,
ATTACHMENT, PERFECTION, PRIORITY, ENFORCEMENT OF AND REMEDIES


 


E-2





















 


RELATING TO THE SECURITY INTEREST IN ANY REAL PROPERTY
COLLATERAL, THE GOVERNING LAW MAY BE THE LAWS OF THE JURISDICTIONS WHERE SUCH
COLLATERAL IS LOCATED WITHOUT REGARD TO THE CONFLICT OF LAW PROVISIONS THEREOF.


 


5.                                      
Counterparts.  The parties may sign any number of
copies of this Supplemental Indenture.  Each signed copy shall be an
original, but all of them together represent the same agreement.


 


6.                                      
Effect
of Headings. 
The Section headings herein are for convenience only and shall not affect
the construction hereof.


 


[signature page follows]


 


E-3





















 


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


 


	
   

  	
  THE
  ISSUER:

  
	
   

  	
   

  
	
   

  	
  THE
  WORNICK COMPANY

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
  Name:

  
	
   

  	
  Title:

  
	
   

  	
   

  
	
   

  	
  GUARANTEEING
  SUBSIDIARY:

  
	
   

  	
   

  
	
   

  	
  NAME:

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  
	
   

  	
   

  
	
   

  	
  THE
  TRUSTEE:

  
	
   

  	
   

  
	
   

  	
  U.S.
  BANK NATIONAL ASSOCIATION

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  
	
   

  	
   

  	
   

  	
   

  



 


E-4





















 


EXHIBIT F 


 


FORM
OF INTERCREDITOR AGREEMENT


 


[attached]


 


F-1





















 


FORM
OF INTERCREDITOR AGREEMENT


 


This INTERCREDITOR
AGREEMENT, dated as of June 30, 2004 (this “Agreement”),
is made by and between U.S. BANK NATIONAL ASSOCIATION, in its capacity as
trustee under the Indenture (as defined below) and as secured party under the
Security Agreement (as defined in the Indenture) (together with its successors
in such capacities, the “Trustee”),
and
                               ,
as the lender (the “Bank”) under
the Credit Agreement (as defined below).


 


RECITALS


 


WHEREAS, The Wornick
Company, a Delaware corporation (the “Issuer”),
the Guarantors (as defined in the Indenture referred to below) and the Trustee
entered into that certain Indenture, dated as of June 30, 2004 (as amended,
restated, supplemented, or otherwise modified from time to time, the “Indenture”), whereby indebtedness was
incurred by the Issuer, the repayment of which is guaranteed by the Guarantors
and secured by a continuing security interest in and lien on substantially all
of the assets of the Issuer and the Guarantors (other than the Excluded Assets
(defined therein)) (the “Collateral”);


 


WHEREAS, the Issuer, the
Guarantors and the Bank entered into that certain Loan Agreement, dated as of
the date hereof (as amended, restated, supplemented or otherwise modified from
time to time, the “Credit Agreement”), whereby the Bank
agreed, upon the terms and conditions stated therein, to make loans and
advances to, or to issue letters of credit (or guaranties in respect thereof)
for the account of the Issuer, the repayment of which is secured by a
continuing security interest in and lien on the Collateral in accordance with
the Credit Agreement and all other Loan Documents (as defined in the Credit
Agreement) (collectively, the “Credit
Documents”);


 


WHEREAS, one of the
conditions of the Credit Agreement is that the security interest in the
Collateral under the Credit Documents be senior in priority to the security
interest in the Collateral under the Indenture Documents (defined below) in the
manner and to the extent provided for in this Agreement;


 


WHEREAS, the Trustee and
the Bank desire to enter into this Agreement concerning their respective rights
with respect to the priority of their respective security interests in the
Collateral; and


 


WHEREAS, the terms of the
Indenture permit the Issuer and the Guarantors to enter into the Credit
Agreement, and in connection therewith, authorize and direct the Trustee to
enter into an intercreditor agreement in the form of this Agreement.


 


NOW, THEREFORE, the
Parties hereby agree as follows:


 





















 


ARTICLE I

DEFINITIONS


 


SECTION 1.1                    
DEFINITIONS.  IN ADDITION TO THE CAPITALIZED
TERMS DEFINED ABOVE, AS USED IN THIS AGREEMENT, THE FOLLOWING CAPITALIZED TERMS
ARE USED:


 


“Credit Facility Indebtedness” means all
present and future Obligations (as defined in the Credit Agreement), contingent
or otherwise, of the Issuer and the Guarantors to the Senior Creditor arising
under or pursuant to the Credit Documents, including, in each case, interest,
fees, and expenses accruing after the initiation of any Insolvency Proceeding
(irrespective of whether allowed as a claim in such proceeding), and also
including the secured claims of the Senior Creditor in respect of the
Collateral in any Insolvency Proceeding.


 


“Enforcement Action” means, with respect to
the Trustee or the Senior Creditor, (a) the commencement of any action, whether
judicial or otherwise, for the enforcement of such Party’s rights and remedies
as a secured creditor with respect to the Collateral, including the
commencement of any receivership or foreclosure proceedings against, or any
other sale of, collection on, or disposition of, any Collateral, or any
exercise of remedies with respect to the Collateral under the Indenture
Documents or the Credit Documents; (b) notifying any third-party account
debtors of the Issuer, any Guarantor or any of their respective subsidiaries to
make payment directly to such Party or to any of its agents or other Persons
acting on its behalf; or (c) following the commencement of an Insolvency
Proceeding against the Issuer or any Guarantor, exercising any rights afforded
to secured creditors in a case under the Bankruptcy Code that directly relates
to or directly affects any of the Collateral.


 


“Enforcement Event” means the occurrence and
continuance of an Event of Default.


 


“Enforcement Event Notice” has the meaning
set forth in Section 3.2(a).


 


“Entitled Party” has the meaning set forth
in Section 4.1(a).


 


“Event of Default” has the meaning set forth
in the Financing Documents.


 


“Expiry Date” has the meaning set forth in Section
3.2(b)(i).


 


“Financing Documents” means the Indenture
Documents and the Credit Documents.


 


“Fully Paid” means the payment in cash or
cash equivalents in full of all obligations (other than inchoate indemnity
obligations that survive payment in full) under the Credit Documents or the
Indenture Documents, as the case may be, and in the case of the Credit
Documents, at such time when there shall no longer be any obligation to make
loans or advances or issue letters of credit (or guaranties in respect thereof)
thereunder and there shall no longer be any letter of credit (or guaranty in
respect thereof) outstanding thereunder or such letter of credit (or guaranty
in respect thereof) shall have been fully cash collateralized (in accordance
with the provisions of the Credit Documents).


 


“Indenture Documents” means the Indenture,
the Notes, the Security Documents and the Registration Rights Agreement, and
such other agreements, instruments and certificates executed and delivered (or
issued) by the Issuer or the Guarantors pursuant to the Indenture, as


 


2





















 


any or all of the same may be amended, restated,
supplemented or otherwise modified from time to time.


 


“Insolvency Proceeding” means any proceeding
for the purposes of dissolution, winding up, liquidation, arrangement or
reorganization of the Issuer, any Guarantor, or any other subsidiary of the
Issuer, or its successors or assigns, whether in bankruptcy, insolvency,
arrangement, reorganization or receivership proceedings, or upon an assignment
for the benefit of creditors or any other marshaling of the assets and
liabilities of the Issuer, any Guarantor, or any other subsidiary of the
Issuer, or its successors or assigns.


 


“Lien Priority” means, with respect to any
Lien in and to the Collateral, the order of priority of such Lien as specified
in Sections 2.1 and 2.2.


 


“Maximum Amount” means an aggregate amount
of Credit Facility Indebtedness incurred and outstanding at any time (plus any Refinancing Indebtedness incurred
to retire, defease, refinance, replace or refund such Indebtedness) of up to
the greater of (a) $15.0 million, plus
any Indebtedness owing to the Senior Creditor certified by the Issuer to the
Senior Creditor at the time of incurrence to be permitted under the Indenture
pursuant to clause (ii) of paragraph (g) or paragraph (h) of the definition of
“Permitted Indebtedness,” minus the
amount of any such Indebtedness certified by the Issuer to the Senior Creditor
to be (1) retired with the Net Cash Proceeds from any Asset Sale or Event of
Loss applied to permanently reduce the outstanding amounts or the commitments
with respect to such Indebtedness pursuant to Section 4.13 of the Indenture, or
(2) assumed by a transferee in an Asset Sale, and (b) the sum of (i) 85% of the
net book value of accounts receivable of the Issuer and the Subsidiaries, and
(ii) 65% of the net book value of inventory of the Issuer and the Subsidiaries,
in the case of each of clauses (b)(i) and (ii), as determined by the Issuer in
accordance with GAAP as of the date or dates of incurrence of such Indebtedness
under the Credit Agreement, and which Indebtedness is certified by the Issuer
to the Senior Creditor at the time of incurrence as permitted under the
Indenture, and including accounts receivable and inventory acquired with the
proceeds of the substantially concurrent incurrence of Indebtedness under the
Credit Agreement, plus in the
instance of either clause (a) or (b), all related interest, fees, indemnities,
costs and expenses.


 


“Notes” means the senior secured notes
issued under the Indenture.


 


“Party” means any signatory to this
Agreement.


 


“Secured Liability” means the Subordinated
Lien Indebtedness and the Credit Facility Indebtedness.


 


“Senior Creditor” means the Bank or, if
applicable, the administrative agent (or similar designation, if the Credit
Facility Indebtedness is syndicated among a group of lenders) under the Credit
Agreement.


 


“Subordinated Lien Indebtedness” means all
present and future obligations, contingent or otherwise, of the Issuer and the
Guarantors to the Trustee or the Holders arising under or pursuant to the
Indenture Documents, including, in each case, interest, fees and expenses
accruing after the initiation of any Insolvency Proceeding (irrespective of
whether allowed as a claim in such proceeding), and including the secured
claims of the Trustee or the Holders in respect of the Collateral in any Insolvency
Proceeding.


 


3





















 


“Trigger Date” means the earlier of (i) the
date on which an event contemplated by clause (b) or (c) of the definition of
Trigger Event occurs, (ii) the date on which an Enforcement Event Notice is
delivered, and (iii) the final maturity date of the Credit Facility
Indebtedness (after giving effect to any extensions granted thereunder).


 


“Trigger Event” means:


 


(a)                                 
the occurrence of an
Event of Default,


 


(b)                                
the acceleration of
the maturity of the Credit Facility Indebtedness by the Senior Creditor
pursuant to the Credit Agreement, or


 


(c)                                 
the commencement of
any action or proceeding by the Senior Creditor, whether judicial or otherwise
(but excluding demands for payment or notices of default), for the enforcement
of the Senior Creditor’s rights and remedies under any of the Credit Documents,
including (i) commencement of any Enforcement Action against or any other sale
of, collection on or disposition of any Collateral, including any notification
to third parties to make payment directly to the Senior Creditor; (ii) exercise
of any right of set-off; (iii) commencement of any Insolvency Proceeding; and
(iv) commencement of any judicial action or proceeding against the Issuer or
any Guarantor to recover all or any part of the Credit Facility Indebtedness.


 


4





















 


SECTION 1.2                    
Indenture definitions.  Undefined capitalized terms have the meanings
assigned to them in the indenture.


 


SECTION 1.3                    
Miscellaneous.  All definitions herein (whether set forth herein directly or by
reference to definitions in other documents) shall be equally applicable to
both the singular and the plural forms of the terms defined.  The words
“hereof,” “herein” or “hereunder” and words of similar import when used in this
agreement shall refer to this agreement as a whole and not to any particular
provision of this agreement.  The term “including” (and similar terms)
means “including without limitation.”


 


ARTICLE II

LIEN PRIORITY


 


SECTION 2.1                    
Agreement to subordinate liens.  The trustee hereby agrees that the liens of
the trustee for the benefit of itself and the holders in and to the collateral
are and shall be subordinate in priority to the liens of the senior creditor in
and to the collateral securing the credit facility indebtedness up to, but not
in excess of, the maximum amount; provided that,
the rights of the senior creditor under this agreement shall be void and of no
further force and effect if, and only to the extent that, the liens of the
senior creditor in and to the collateral are avoided, disallowed, set aside or
otherwise invalidated in any action or proceeding by a court, tribunal or administrative
agency of competent jurisdiction.  The subordination of the liens of the
trustee for the benefit of itself and the holders in and to the collateral in
favor of the senior creditor provided for herein shall not be deemed to (a)
subordinate the liens of the trustee to the liens of any other person, or (b)
subordinate the subordinated lien indebtedness to any indebtedness of the
issuer or any of the guarantors, including the credit facility indebtedness.


 


SECTION 2.2                    
No contest; excluded assets.  Each party agrees that it will not attack or
contest the validity, perfection, priority or enforceability of the liens of
the other party (and the trustee agrees that it will not contest the senior
creditor’s good faith reliance on any certification referenced in the
definition of “maximum amount” made by the issuer to the senior creditor), or
finance or urge any other person to do so; provided
that, either party may enforce its rights and privileges hereunder
without being deemed to have violated this provision.  Any provision
contained in this agreement to the contrary notwithstanding, the terms and
conditions of this agreement shall not apply to any property or assets
(including property or assets that do not constitute collateral) that one party
has a lien on and the other party does not.


 


5





















 


SECTION 2.3                    
EXERCISE OF
RIGHTS.


 


(a)                                 
The Trustee may
exercise, and nothing herein shall constitute a waiver of, any right it may
have at law or in equity to receive notice of, or to commence or join with any
creditor in commencing any Insolvency Proceeding; provided that, the exercise of any such right by the Trustee
shall be (i) subject to the Lien Priority and the application of proceeds of
Collateral under Section 3.4, and (ii) subject to the provisions of Sections
3.1 and 3.2.


 


(b)                                
Notwithstanding any
other provision hereof, the Trustee may make such demands or file such claims
as may be necessary to prevent the waiver or bar of such claims under
applicable statutes of limitations or other statutes, court orders or rules of
procedure.


 


SECTION 2.4                    
Priority of liens.  Irrespective of the order of recording of
mortgages, financing statements, security agreements or other instruments, and
irrespective of the descriptions of collateral contained in the financing
documents, including any financing statements, the parties agree among
themselves that their respective liens in the collateral shall be governed by
the lien priority, which shall be controlling in the event of any conflict
between this agreement and any of the financing documents. 


 


ARTICLE III

ACTIONS OF THE PARTIES


 


SECTION 3.1                    
LIMITATION ON
CERTAIN ACTIONS. 
SUBJECT TO SECTION 3.2, UNTIL THE EARLIER OF (A) THE DATE ON WHICH ALL
CREDIT FACILITY INDEBTEDNESS IS FULLY PAID, AND (B) THE FIRST DATE FOLLOWING
THE DATE ON WHICH THE MAXIMUM AMOUNT OF CREDIT FACILITY INDEBTEDNESS IS FULLY
PAID, THE TRUSTEE WILL NOT, WITHOUT THE PRIOR WRITTEN CONSENT OF THE SENIOR
CREDITOR, TAKE ANY ENFORCEMENT ACTION.


 


SECTION 3.2                    
STANDSTILL
PERIOD.


 


(a)                                 
If an Enforcement
Event with respect to the Indenture Documents has occurred and is continuing,
the Trustee, on behalf of the Holders, will give the Senior Creditor written
notice thereof (an “Enforcement Event Notice”).


 


(b)                                
The Trustee may,
subject to the Lien Priority and the application of all proceeds of the
Collateral in accordance with Section 3.4, take one or more Enforcement
Actions so long as:


 


(i)         (A) an Enforcement Event is continuing
for more than 45 consecutive days after the delivery of an Enforcement Event
Notice (the “Expiry Date”); (B)
the Senior Creditor has not, on or before the Expiry Date, commenced one or
more Enforcement Actions, and (C) the Issuer or the Guarantor against which the
Trustee’s proposed Enforcement Action is to be taken is not the subject of an
Insolvency Proceeding; or


 


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(ii)      (A) the Senior Creditor has commenced any Enforcement
Action on or prior to the Expiry Date and, at any time after the Expiry Date,
is no longer pursuing any Enforcement Actions, (B) no Insolvency Proceeding is
pending against the Issuer or any Guarantor against which the Trustee’s
proposed Enforcement Action is to be taken, and (C) the Enforcement Event that
was the subject of, or existing on the date of, the Enforcement Event Notice is
then continuing.


 


(c)                                 
Except as expressly
provided for in this Agreement, nothing in this Agreement shall prevent the
Parties hereto from exercising any other remedy, or taking any other action,
under any of the Financing Documents.


 


SECTION 3.3                    
Foreclosure.  Any party taking a permitted enforcement action may enforce its
financing documents independently as to the issuer and each guarantor and
independently of any other remedy or security such party at any time may have
or hold in connection with the secured liabilities owing to it, and it shall
not be necessary for such party to marshal assets in favor of the other party
or any other person or to proceed upon or against or exhaust any other security
or remedy before proceeding to enforce the financing documents.  Each of
the trustee (for so long as the credit facility indebtedness is not fully paid)
and the senior creditor (for so long as the trustee and the holders are owed
any subordinated lien indebtedness) expressly waives any right to require the
other party to marshal assets in its favor or to proceed against any collateral
provided by the issuer or any guarantor, or any other property, assets, or
collateral provided by the issuer, any guarantor, or any other person, and
agrees that the party taking such permitted enforcement action may proceed
against the issuer, any guarantor, any collateral or other property, assets, or
other collateral provided by any of them or by any other person, in such order
as it shall determine in its sole and absolute discretion.  The foregoing
notwithstanding:  (a) with respect to the sale or other disposition of any
collateral, the party conducting such sale or other disposition agrees in favor
of the other party that such sale or other disposition shall be conducted in a
commercially reasonable manner in accordance with any applicable law, including
Article 9 of the uniform commercial code, and (b) the senior creditor agrees
that, at such time as all credit facility indebtedness is fully paid, it shall thereupon
promptly cease all further enforcement actions.


 


SECTION 3.4                    
Distribution.  Each party agrees that, upon any distribution as a result of an
enforcement action, or the receipt of any other payment or distribution with
respect to the collateral, the proceeds thereof shall be distributed in the
order of, and in accordance with, the following priorities:


 


7





















 


(a)                                 
FIRST:


 


(i)                                    
if the Enforcement
Action is taken by the Senior Creditor, to the payment of all reasonable costs
and expenses, commissions and taxes of the Senior Creditor incurred in
connection with taking any such Enforcement Action or other realization,
including all reasonable expenses (including attorneys’ fees and expenses),
liabilities and advances made or incurred by the Senior Creditor in connection
therewith;


 


(ii)                                 
if the Enforcement
Action is taken by the Trustee, to the payment of all reasonable costs and expenses,
commissions and taxes of the Trustee incurred in connection with taking any
such Enforcement Action or other realization, including all reasonable expenses
(including attorneys’ fees and expenses), liabilities and advances made or
incurred by the Trustee in connection therewith;


 


(b)                                
SECOND, to the Senior
Creditor, until the earlier of (i) the Credit Facility Indebtedness being Fully
Paid, and (ii) the first time following the date at which the Maximum Amount of
Credit Facility Indebtedness is Fully Paid;


 


(c)                                 
THIRD, to the
Trustee, until all Subordinated Lien Indebtedness is Fully Paid;


 


(d)                                
FOURTH, to the Senior
Creditor until all outstanding Credit Facility Indebtedness in excess of the
Maximum Amount is Fully Paid; and


 


(e)                                 
FIFTH, to the Issuer
or the Guarantors, as applicable, or as a court of competent jurisdiction may
otherwise direct.


 


8





















 


SECTION 3.5                    
Notice of certain events.  Each party agrees that it will notify the
other party, in writing, (a) if it receives actual notice of the occurrence of
a trigger event or enforcement event, not later than seven days after the date
of any such occurrence, and (b) prior to its first exercising any remedies with
respect to any portion of the collateral in connection with one or more events
of default, provided that, if all
such events of default are cured or waived, such notice under this Clause (b) will
be given on each other occasion that remedies are first exercised with respect
to one or more other events of default.  Notwithstanding the foregoing,
(x) the senior creditor shall not be obligated to provide such prior written
notice if exigent circumstances require that it act immediately to preserve,
protect, or obtain possession or control over the collateral; provided that, in such event the senior
creditor agrees to provide the trustee with written notice as soon as
practicable following the senior creditor first exercising any remedies with
respect to the collateral; and (y) no party shall incur any liability to the
other under this Section 3.5 as
a result of the failure of such party to provide any such notice so long as the
failure to so provide such notice was not the result of willful misconduct, bad
faith or gross negligence.


 


ARTICLE IV

ENFORCEMENT OF PRIORITIES


 


SECTION 4.1                    
In furtherance of lien priorities.  Each party agrees as follows:


 


(a)                                 
All payments or
distributions of or with respect to the Collateral that are received by any
Party contrary to the provisions of this Agreement shall be segregated from
other funds and property held by such Party and shall be held in trust for the
Party entitled thereto (the “Entitled Party”)
in accordance with the provisions of Section 3.4 and such Party shall
forthwith pay over such remaining proceeds to the Entitled Party in the same
form as so received (with any necessary endorsement) to be applied (in the case
of cash) or held as Collateral (in the case of noncash property or securities)
in accordance with the provisions hereof and the provisions of the applicable
Financing Documents.


 


(b)                                
After the earlier of
(i) the date on which all Credit Facility Indebtedness is Fully Paid, and (ii)
the first date following the Trigger Date on which the Maximum Amount of Credit
Facility Indebtedness is Fully Paid, the Senior Creditor will promptly execute
and deliver all further instruments and documents, and take all further actions
that may be necessary, or that the Trustee may reasonably request, to permit
the Trustee to evidence the termination of the Lien Priority hereunder, or in
furtherance thereof; provided that,
(x) the Senior Creditor shall not be required to pay over any payment or
distribution, execute any instruments or documents, or take any other action
referred to in this Section 4.1(b) to the extent that such action would
contravene any law, order or other legal requirement, and in the event of a
controversy or dispute, the Senior


 


9





















 


Creditor may interplead any payment or distribution in
any court of competent jurisdiction; and (y) the Senior Creditor shall not
incur any liability to the Trustee for failure to provide any such further
instruments and documents or take any further acts, so long as the failure to
provide any such further instruments and documents or take any such further act
was not the result of malfeasance, willful misconduct or gross negligence.


 


(c)                                 
Each Party is hereby
authorized to demand specific performance of this Agreement, whether or not the
Issuer or any Guarantor shall have complied with any of the provisions hereof
applicable to it, at any time when either Party shall have failed to comply
with the provisions of this Agreement applicable to it.  Each Party hereby
irrevocably waives any defense based on the adequacy of a remedy at law, which
might be asserted as a bar to such remedy of specific performance.


 


(d)                                
This Agreement shall
continue to be effective or be reinstated, as the case may be, if at any time
any payment of any of the Secured Liabilities is, other than as a result of any
intentional fraud or gross negligence of the applicable Party, rescinded or
must otherwise be returned by the applicable Party upon the insolvency,
bankruptcy or reorganization of the Issuer or any Guarantor or otherwise, all
as though such payment had not been made.


 


SECTION 4.2                    
Perfection of possessory security interests.  For the limited purpose of
perfecting the security interests of the parties in those types or items of
collateral in which a security interest only may be perfected by possession or
control, each party hereby appoints the other as its representative for the
limited purpose of possessing on its behalf any such collateral that may come
into the possession or control of such other party from time to time, and each
party agrees to act as the other’s representative for such limited purpose of
perfecting the other’s security interest by possession or control through a
representative; provided that,
neither party shall incur any liability to the other by virtue of acting as the
other’s representative hereunder.  In this regard, any party that is in
possession or control of any such item of collateral agrees that if it elects
to relinquish possession or control of such item of collateral it shall deliver
possession or control thereof to the other party; provided that, no party shall be required to deliver any
such item of collateral or take any other action referred to in this Section
4.2 to the extent that such action would contravene any law, order or other
legal requirements, and in the event of a controversy or dispute, such party
may interplead any item of collateral in any court of competent jurisdiction.


 


SECTION 4.3                    
Control of dispositions of collateral and effect thereof on junior
liens.


 


(a)                                 
Each Party hereby
agrees that any collection, sale, or other disposition of Collateral (whether
under the applicable Uniform Commercial Code or otherwise) by the Senior
Creditor shall be free and clear of any Lien of the Trustee in


 


10





















 


such Collateral; provided
that, the Trustee shall retain a Lien (having the same priority as
the Lien it previously had on the item of Collateral that was collected, sold
or otherwise disposed of) on the proceeds of such collection, sale, or other
disposition (except to the extent such proceeds are applied to the Credit
Facility Indebtedness in accordance with Section 3.4).


 


(b)                                
To the extent
reasonably requested by the Senior Creditor, the Trustee will cooperate in
providing any necessary or appropriate releases to permit a collection, sale,
or other disposition of Collateral, as provided in Section 4.3(a), by
the Senior Creditor therein free and clear of the Trustee’s junior Lien.


 


ARTICLE V

MISCELLANEOUS


 


SECTION 5.1                    
Rights of subrogation.  The trustee agrees that no payment or
distribution received by the trustee on account of the subordinated lien
indebtedness, which payment or distribution is applied against the subordinated
indebtedness and is paid over to the senior creditor pursuant to Section 4.1,
shall entitle the trustee to exercise any rights of subrogation in respect
thereof until the earlier of (a) the date on which all credit facility
indebtedness is fully paid, and (b) the date on which the maximum amount of
credit facility indebtedness shall have been fully paid.


 


SECTION 5.2                    
Further assurances.  The parties will, at their own expense and at
any time and from time to time, promptly execute and deliver all further
instruments and documents, and take all further reasonable action (including
the recordation of a subordination agreement in the appropriate recorder’s
office), that may be necessary or desirable, or that either party may
reasonably request, to protect any right or interest granted or purported to be
granted hereby or to enable such party to exercise and enforce its rights and
remedies hereunder; provided
that, no party shall be required to pay over any payment or distribution,
execute any instruments or documents, or take any other action referred to in
this Section 5.2 to the extent that such action would contravene any
law, order or other legal requirement binding on such party, and in the event
of a controversy or dispute, any party may interplead any payment or
distribution in any court of competent jurisdiction, without further
responsibility in respect of such payment or distribution under this Section
5.2.


 


SECTION 5.3                    
Defenses similar to suretyship defenses.  All rights, interests, agreements
and obligations of each of the parties under this agreement shall remain in
full force and effect irrespective of:


 


(a)                                 
any change in the
time, manner or place of payment of, or in any other term of, all or any of the
Secured Liabilities, or any other amendment or waiver of or any consent to
departure from the Financing Documents; provided
that, this Section 5.3(a)


 


11





















 


shall not apply to, and the Trustee’s Liens on the
Collateral shall not be subordinated in priority by virtue of this Agreement
to, the Senior Creditor’s Liens thereon if and to the extent that the Credit
Facility Indebtedness is increased, without the express written consent of the
Trustee, to an amount in excess of the Maximum Amount;


 


(b)                                
any exchange,
release, nonenforcement or nonperfection of any Party’s Liens with respect to
any Collateral, or any release, amendment or waiver of or consent to departure
from any guaranty, for all or any of the Secured Liabilities; or


 


(c)                                 
any failure by any
Party to marshal assets in favor of any other Party or any other Person or to
proceed upon or against or exhaust any security or remedy before proceeding to
enforce the Financing Documents.


 


SECTION 5.4                    
Amendments, etc.  No amendment or waiver of any provision of
this agreement and no consent to any departure by any party shall be effective
unless the same is in writing and signed by each party, and then such waiver or
consent shall be effective only in the specific instance and for the specific
purpose for which given.


 


SECTION 5.5                    
Addresses for notices.  All demands, notices and other communications
provided for hereunder shall be in writing, and if to the trustee, mailed, sent
by facsimile or delivered to it at the following address:


 


U.S. Bank National Association

60 Livingston Avenue

St. Paul, MN  55107

Facsimile:  (651) 495-8097

Attention:  Corporate Trust Department


 


and if to the Senior Creditor, mailed, sent by
facsimile or delivered to it at the following address:


 


Texas State Bank

3900 North 10th Street

McAllen, TX 78501


Facsimile: (956) 926-7872


Attention: Glen Roney


 


with copies to the Issuer, mailed, sent by facsimile
or delivered to it at the following addresses:


 


The Wornick Company

3900 North 10th Street, Suite 900

McAllen, TX  78501

Facsimile:  (956) 882-7816

Attention:  Chief Executive Officer


 


12





















 


Veritas Capital Management II, L.L.C.


660 Madison Avenue


New York, New York 10022


Facsimile:  (212) 688-9411


Attention:  Robert B. McKeon


 


Schulte, Roth & Zabel LLP


919 Third Avenue


New York, New York 10022


Facsimile:  (212) 593-5955


Attention: Benjamin M. Polk, Esq.


 


Winston & Strawn LLP


200 Park Avenue


New York, New York 10166


Facsimile:  (212) 294-4700


Attention: David A. Sakowitz, Esq.


 


or as to any Party at such other address designated by
such Party in a written notice to the other Party complying as to delivery with
the terms of this Section 5.5.  All such demands, notices and other
communications shall be effective:  (a) if mailed, two business days after
deposit in the mails, postage prepaid; (b) if sent by facsimile, when receipt
is acknowledged by the receiving facsimile equipment (or at the opening of the
next business day if receipt is after normal business hours); or (c) if by
other means, when delivered.


 


13





















 


SECTION 5.6                    
No waiver of remedies.  No failure on the part of any party to
exercise, and no delay in exercising, any right hereunder shall operate as a
waiver thereof; nor shall any single or partial exercise of any right hereunder
preclude any other or further exercise thereof or the exercise of any other
right.  The remedies herein provided are cumulative and not exclusive of
any remedies provided by law.


 


SECTION 5.7                    
Termination of agreement.  This agreement shall (x) be binding on the
parties and their successors and assigns; (y) inure to the benefit of and be
enforceable by the parties and their respective successors, transferees and
assigns; and (z) terminate upon the credit facility indebtedness or the
subordinated lien indebtedness being fully paid; provided that, the obligations of the parties under Sections
4.1 and 5.2 shall survive this agreement.


 


SECTION 5.8                    
Governing law; entire agreement.  This
agreement shall be governed by, and construed in accordance with, the laws of
the State of New York.  This agreement constitutes the entire
agreement and understanding among the parties with respect to the subject
matter hereof and supersedes any prior agreements, written or oral, with
respect thereto.


 


SECTION
5.9                    
Counterparts.  This agreement may be executed in any number of counterparts,
and it is not necessary that the signatures of all parties be contained on any
one counterpart hereof, each counterpart (including counterparts delivered by
facsimile) will be deemed to be an original, and all together shall constitute
one and the same document.


 


SECTION 5.10             
No third party beneficiary.  This agreement is solely for the benefit of
the parties (and their successors and assigns) and the holders of the secured
liabilities (including the lenders under the credit agreement, the senior
creditor, the trustee and the holders).  No other person (including the
issuer, any guarantor or any subsidiary or affiliate of the issuer or any
guarantor) shall be deemed to be a third party beneficiary of this agreement or
shall have any rights to enforce any provisions hereof.


 


SECTION 5.11             
Headings. 
The headings of the articles and sections of this agreement are inserted for
purposes of convenience only and shall not be construed to affect the meaning
or construction of any of the provisions hereof.


 


SECTION 5.12             
Severability.  If any of the provisions in this agreement shall, for any
reason, be held invalid, illegal or unenforceable in any respect, such
invalidity, illegality or unenforceability shall not affect any other provision
of this agreement and shall not invalidate the lien priority or any other
priority set forth in this agreement.


 


14





















 


SECTION 5.13             
Trustee status.  Notwithstanding any term herein to the contrary, it is hereby
expressly agreed and acknowledged that the subordination and related agreements
set forth herein by the trustee are made solely in its capacity as trustee and
secured party under the indenture documents and with respect to the notes (and
not in its individual commercial capacity, except to the extent that it is or
becomes a holder).  The trustee shall not have any duties, obligations, or
responsibilities to the senior creditor under this agreement except as
expressly set forth herein.  Nothing in this agreement shall be construed
to operate as a waiver by the trustee, with respect to the issuer or any holder
of any subordinated lien indebtedness, of the benefit of any exculpatory
provisions, presumptions, indemnities, protections, benefits, immunities or
reliance rights contained in the indenture, and, by their acknowledgment
hereof, the issuer expressly agrees that as between it and the trustee, the
trustee shall have such benefit with respect to all actions or omissions by the
trustee pursuant to this agreement.  For all purposes of this agreement,
the trustee may (a) rely in good faith, as to matters of fact, on any
representation of fact believed by trustee to be true (without any duty of
investigation) and that is contained in a written certificate of any authorized
representative of the issuer or of the senior creditor; (b) rely in good faith,
as to matters of law, on any advice received from its legal counsel or an
opinion of its counsel, counsel to the issuer or counsel to the senior
creditor, and shall have no liability for any action or omission taken in
reliance thereon; and (c) assume in good faith (without any duty of
investigation), and rely upon, the genuineness, due authority, validity, and
accuracy of any certificate, instrument, notice, or other document believed by
it in good faith to be genuine and presented by the proper person.


 


[signature page follows]


 


15





















 


IN WITNESS WHEREOF, each
Party has caused this Agreement to be duly executed and delivered as of the
date first above written.


 


	
   

  	
  Senior Creditor:

  
	
   

  	
   

  
	
   

  	
  TEXAS STATE BANK

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
   

  	
  Name: 

  
	
   

  	
   

  	
  Title: 

  
	
   

  	
   

  
	
   

  	
  Trustee:

  
	
   

  	
   

  
	
   

  	
  U.S. BANK NATIONAL
  ASSOCIATION

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
   

  	
  Name: 

  
	
   

  	
   

  	
  Title: