Exhibit
4.1


 


EXECUTION
COPY


 


 




 





 










 


B&G FOODS, INC.


 


(f/k/a B&G FOODS HOLDINGS CORP.)


 


AND EACH OF THE GUARANTORS PARTY HERETO


 


12.0% SENIOR SUBORDINATED NOTES DUE 2016


 










 


INDENTURE


 


Dated as of October 14, 2004


 










 


The Bank of New York


 


Trustee


 










 




 





 





















 


CROSS-REFERENCE TABLE*


 


	
  Trust Indenture

  Act Section

  	
   

  	
  Indenture Section

  
	
  310(a)(1)

  	
   

  	
  7.10

  
	
  (a)(2)

  	
   

  	
  7.10

  
	
  (a)(3)

  	
   

  	
  N.A.

  
	
  (a)(4)

  	
   

  	
  N.A.

  
	
  (a)(5)

  	
   

  	
  7.10

  
	
  (b)

  	
   

  	
  7.10

  
	
  (c)

  	
   

  	
  N.A.

  
	
  311(a)

  	
   

  	
  7.11

  
	
  (b)

  	
   

  	
  7.11

  
	
  (c)

  	
   

  	
  N.A.

  
	
  312(a)

  	
   

  	
  2.05

  
	
  (b)

  	
   

  	
  12.03

  
	
  (c)

  	
   

  	
  12.03

  
	
  313(a)

  	
   

  	
  7.06

  
	
  (b)

  	
   

  	
  7.06; 7.07

  
	
  (c)

  	
   

  	
  7.06; 12.02

  
	
  (d)

  	
   

  	
  7.06

  
	
  314(a)

  	
   

  	
  4.03; 12.02; 12.05

  
	
  (b)

  	
   

  	
  10.02

  
	
  (c)(1)

  	
   

  	
  12.04

  
	
  (c)(2)

  	
   

  	
  12.04

  
	
  (c)(3)

  	
   

  	
  N.A.

  
	
  (d)

  	
   

  	
  12.05

  
	
  (e)

  	
   

  	
  N.A.

  
	
  315(a)

  	
   

  	
  7.01

  
	
  (b)

  	
   

  	
  7.05; 12.02

  
	
  (c)

  	
   

  	
  7.01

  
	
  (d)

  	
   

  	
  7.01

  
	
  (e)

  	
   

  	
  6.11

  
	
  316(a) (last sentence)

  	
   

  	
  2.09

  
	
  (a)(1)(A)

  	
   

  	
  6.05

  
	
  (a)(1)(B)

  	
   

  	
  6.04

  
	
  (a)(2)

  	
   

  	
  N.A.

  



 










N.A. means not applicable.


*  This Cross-Reference Table is not part of the
Indenture.


 


i





















 


TABLE OF CONTENTS


 


	
  ARTICLE 1

  DEFINITIONS AND INCORPORATION BY REFERENCE

  	
   

  
	
   

  	
   

  
	
  Section 1.01

  	
  Definitions.

  	
   

  
	
  Section 1.02

  	
  Other Definitions.

  	
   

  
	
  Section 1.03

  	
  Incorporation by Reference of
  Trust Indenture Act.

  	
   

  
	
  Section 1.04

  	
  Rules of Construction.

  	
   

  
	
   

  	
   

  	
   

  
	
  ARTICLE 2

  THE NOTES

  	
   

  
	
   

  	
   

  
	
  Section 2.01

  	
  Form and Dating.

  	
   

  
	
  Section 2.02

  	
  Execution and Authentication.

  	
   

  
	
  Section 2.03

  	
  Registrar and Paying Agent.

  	
   

  
	
  Section 2.04

  	
  Paying Agent to Hold Money in Trust.

  	
   

  
	
  Section 2.05

  	
  Holder Lists.

  	
   

  
	
  Section 2.06

  	
  Transfer and Exchange.

  	
   

  
	
  Section 2.07

  	
  Replacement Notes.

  	
   

  
	
  Section 2.08

  	
  Outstanding Notes.

  	
   

  
	
  Section 2.09

  	
  Treasury Notes.

  	
   

  
	
  Section 2.10

  	
  Temporary Notes.

  	
   

  
	
  Section 2.11

  	
  Cancellation.

  	
   

  
	
  Section 2.12

  	
  Defaulted Interest.

  	
   

  
	
  Section
  2.13

  	
  Maturity.

  	
   

  
	
  Section
  2.14

  	
  Tax Treatment.

  	
   

  
	
  Section
  2.15

  	
  CUSIP Numbers.

  	
   

  
	
   

  	
   

  	
   

  
	
  ARTICLE 3

  REDEMPTION AND PREPAYMENT

  	
   

  
	
   

  	
   

  
	
  Section 3.01

  	
  Notices to Trustee.

  	
   

  
	
  Section 3.02

  	
  Selection of Notes to Be Redeemed
  or Purchased.

  	
   

  
	
  Section 3.03

  	
  Notice of Redemption.

  	
   

  
	
  Section 3.04

  	
  Effect of Notice of Redemption.

  	
   

  
	
  Section 3.05

  	
  Deposit of Redemption or Purchase
  Price.

  	
   

  
	
  Section 3.06

  	
  Notes Redeemed or Purchased in Part.

  	
   

  
	
  Section 3.07

  	
  Optional Redemption.

  	
   

  
	
  Section 3.08

  	
  Mandatory Redemption.

  	
   

  
	
  Section 3.09

  	
  Offer to Purchase by Application
  of Excess Proceeds.

  	
   

  



 


ii





















 


	
  ARTICLE 4

  COVENANTS

  	
   

  
	
   

  	
   

  
	
  Section
  4.01

  	
  Payment of
  Notes

  	
   

  
	
  Section
  4.02

  	
  Maintenance
  of Office or Agency

  	
   

  
	
  Section
  4.03

  	
  Reports

  	
   

  
	
  Section
  4.04

  	
  Compliance
  Certificate

  	
   

  
	
  Section
  4.05

  	
  Taxes

  	
   

  
	
  Section
  4.06

  	
  Stay,
  Extension and Usury Laws

  	
   

  
	
  Section
  4.07

  	
  Restricted
  Payments

  	
   

  
	
  Section 4.08

  	
  Dividend
  and Other Payment Restrictions Affecting Subsidiaries

  	
   

  
	
  Section
  4.09

  	
  Incurrence
  of Indebtedness and Issuance of Preferred Stock

  	
   

  
	
  Section
  4.10

  	
  Asset
  Sales.

  	
   

  
	
  Section
  4.11

  	
  Transactions
  with Affiliates

  	
   

  
	
  Section
  4.12

  	
  Liens

  	
   

  
	
  Section
  4.13

  	
  Business
  Activities

  	
   

  
	
  Section
  4.14

  	
  Corporate
  Existence

  	
   

  
	
  Section
  4.15

  	
  Offer to
  Repurchase Upon Change of Control

  	
   

  
	
  Section
  4.16

  	
  Limitation
  on Sale and Leaseback Transactions

  	
   

  
	
  Section
  4.17

  	
  Payments
  for Consent

  	
   

  
	
  Section
  4.18

  	
  Additional
  Note Guarantees

  	
   

  
	
  Section
  4.19

  	
  Designation
  of Restricted and Unrestricted Subsidiaries

  	
   

  
	
  Section 4.20

  	
  No Layering of Debt

  	
   

  
	
  Section
  4.21

  	
  Subsequent
  Issuances

  	
   

  
	
  Section 4.22

  	
  Combination of Notes and Class A Common
  Stock

  	
   

  
	
   

  	
   

  	
   

  
	
  ARTICLE 5

  SUCCESSORS

  	
   

  
	
   

  	
   

  
	
  Section
  5.01

  	
  Merger,
  Consolidation, or Sale of Assets.

  	
   

  
	
  Section
  5.02

  	
  Successor
  Corporation Substituted

  	
   

  
	
   

  	
   

  	
   

  
	
  ARTICLE 6

  DEFAULTS AND REMEDIES

  	
   

  
	
   

  	
   

  
	
  Section
  6.01

  	
  Events of
  Default

  	
   

  
	
  Section
  6.02

  	
  Acceleration

  	
   

  
	
  Section
  6.03

  	
  Other
  Remedies

  	
   

  
	
  Section
  6.04

  	
  Waiver of
  Past Defaults

  	
   

  
	
  Section
  6.05

  	
  Control
  by Majority

  	
   

  
	
  Section
  6.06

  	
  Limitation
  on Suits

  	
   

  
	
  Section
  6.07

  	
  Rights of
  Holders of Notes to Receive Payment

  	
   

  
	
  Section
  6.08

  	
  Collection
  Suit by Trustee

  	
   

  
	
  Section
  6.09

  	
  Trustee
  May File Proofs of Claim

  	
   

  



 


iii





















 


	
  Section
  6.10

  	
  Priorities.

  	
   

  
	
  Section
  6.11

  	
  Undertaking
  for Costs.

  	
   

  
	
   

  	
   

  	
   

  
	
  ARTICLE
  7

  TRUSTEE

  	
   

  
	
   

  	
   

  
	
  Section
  7.01

  	
  Duties of
  Trustee.

  	
   

  
	
  Section
  7.02

  	
  Rights of
  Trustee.

  	
   

  
	
  Section
  7.03

  	
  Individual
  Rights of Trustee.

  	
   

  
	
  Section
  7.04

  	
  Trustee’s
  Disclaimer.

  	
   

  
	
  Section
  7.05

  	
  Notice of
  Defaults.

  	
   

  
	
  Section
  7.06

  	
  Reports
  by Trustee to Holders of the Notes.

  	
   

  
	
  Section
  7.07

  	
  Compensation
  and Indemnity.

  	
   

  
	
  Section
  7.08

  	
  Replacement
  of Trustee.

  	
   

  
	
  Section
  7.09

  	
  Successor
  Trustee by Merger, etc.

  	
   

  
	
  Section
  7.10

  	
  Eligibility;
  Disqualification.

  	
   

  
	
  Section
  7.11

  	
  Preferential
  Collection of Claims Against Company.

  	
   

  
	
   

  	
   

  	
   

  
	
  ARTICLE 8

  LEGAL DEFEASANCE AND COVENANT DEFEASANCE

  	
   

  
	
   

  	
   

  
	
  Section
  8.01

  	
  Option to
  Effect Legal Defeasance or Covenant Defeasance.

  	
   

  
	
  Section
  8.02

  	
  Legal
  Defeasance and Discharge.

  	
   

  
	
  Section
  8.03

  	
  Covenant
  Defeasance.

  	
   

  
	
  Section
  8.04

  	
  Conditions
  to Legal or Covenant Defeasance.

  	
   

  
	
  Section
  8.05

  	
  Deposited
  Money and Government Securities to be Held in Trust; Other Miscellaneous
  Provisions.

  	
   

  
	
  Section
  8.06

  	
  Repayment
  to Company.

  	
   

  
	
  Section
  8.07

  	
  Reinstatement.

  	
   

  
	
   

  	
   

  	
   

  
	
  ARTICLE 9

  AMENDMENT, SUPPLEMENT AND WAIVER

  	
   

  
	
   

  	
   

  
	
  Section
  9.01

  	
  Without
  Consent of Holders of Notes.

  	
   

  
	
  Section
  9.02

  	
  With
  Consent of Holders of Notes.

  	
   

  
	
  Section
  9.03

  	
  Compliance
  with Trust Indenture Act.

  	
   

  
	
  Section
  9.04

  	
  Revocation
  and Effect of Consents.

  	
   

  
	
  Section
  9.05

  	
  Notation
  on or Exchange of Notes.

  	
   

  
	
  Section
  9.06

  	
  Trustee
  to Sign Amendments, etc.

  	
   

  
	
   

  	
   

  	
   

  
	
  ARTICLE 10

  SUBORDINATION

  	
   

  
	
   

  	
   

  
	
  Section
  10.01

  	
  Agreement
  to Subordinate.

  	
   

  



 


iv





















 


	
  Section
  10.02

  	
  Liquidation;
  Dissolution; Bankruptcy.

  	
   

  
	
  Section
  10.03

  	
  Default
  on Designated Senior Indebtedness.

  	
   

  
	
  Section 10.04

  	
  Acceleration of Notes.

  	
   

  
	
  Section 10.05

  	
  When Distribution Must Be Paid Over.

  	
   

  
	
  Section 10.06

  	
  Notice by Company.

  	
   

  
	
  Section 10.07

  	
  Subrogation.

  	
   

  
	
  Section 10.08

  	
  Relative Rights.

  	
   

  
	
  Section 10.09

  	
  Subordination May Not Be Impaired by
  Company.

  	
   

  
	
  Section 10.10

  	
  Distribution or Notice to Representative.

  	
   

  
	
  Section 10.11

  	
  Rights of Trustee and Paying Agent.

  	
   

  
	
  Section 10.12

  	
  Authorization to Effect Subordination.

  	
   

  
	
  Section 10.13

  	
  Amendments.

  	
   

  
	
  Section 10.14

  	
  Reliance on Judicial Order or Certificate
  of Liquidating Agent.

  	
   

  
	
  Section 10.15

  	
  Trustee Not Fiduciary for Holders of
  Senior Indebtedness.

  	
   

  
	
   

  	
   

  	
   

  
	
  ARTICLE 11

  NOTE GUARANTEES

  	
   

  
	
   

  	
   

  
	
  Section
  11.01

  	
  Guarantee.

  	
   

  
	
  Section
  11.02

  	
  Subordination
  of Note Guarantee.

  	
   

  
	
  Section
  11.03

  	
  Limitation
  on Guarantor Liability.

  	
   

  
	
  Section
  11.04

  	
  Execution
  and Delivery of Note Guarantee.

  	
   

  
	
  Section
  11.05

  	
  Guarantors
  May Consolidate, etc., on Certain Terms.

  	
   

  
	
  Section
  11.06

  	
  Releases.

  	
   

  
	
   

  	
   

  	
   

  
	
  ARTICLE 12

  SATISFACTION AND DISCHARGE

  	
   

  
	
   

  	
   

  
	
  Section
  12.01

  	
  Satisfaction
  and Discharge.

  	
   

  
	
  Section
  12.02

  	
  Application
  of Trust Money.

  	
   

  
	
   

  	
   

  	
   

  
	
  ARTICLE 13

  MISCELLANEOUS

  	
   

  
	
   

  	
   

  
	
  Section
  13.01

  	
  Trust
  Indenture Act Controls.

  	
   

  
	
  Section
  13.02

  	
  Notices.

  	
   

  
	
  Section
  13.03

  	
  Communication
  by Holders of Notes with Other Holders of Notes.

  	
   

  
	
  Section
  13.04

  	
  Certificate
  and Opinion as to Conditions Precedent.

  	
   

  
	
  Section
  13.05

  	
  Statements
  Required in Certificate or Opinion.

  	
   

  
	
  Section
  13.06

  	
  Rules
  by Trustee and Agents.

  	
   

  
	
  Section
  13.07

  	
  No
  Personal Liability of Directors, Officers, Employees and Stockholders.

  	
   

  
	
  Section
  13.08

  	
  Governing
  Law.

  	
   

  
	
  Section
  13.09

  	
  No
  Adverse Interpretation of Other Agreements.

  	
   

  



 


v





















 


	
  Section
  13.10

  	
  Successors.

  	
   

  
	
  Section
  13.11

  	
  Severability.

  	
   

  
	
  Section
  13.12

  	
  Counterpart
  Originals.

  	
   

  
	
  Section
  13.13

  	
  Table of
  Contents, Headings, etc.

  	
   

  
	
  Section 13.14

  	
  Waiver of Jury Trial.

  	
   

  



 


EXHIBITS


 


	
  Exhibit A

  	
  FORM OF GLOBAL NOTE

  	
   

  
	
  Exhibit B

  	
  FORM OF NOTATION GUARANTEE

  	
   

  
	
  Exhibit C

  	
  FORM OF SUPPLEMENTAL INDENTURE

  	
   

  



 


vi





















 


INDENTURE dated as of October 14, 2004 among B&G
Foods, Inc. (f/k/a B&G Foods Holdings Corp.), a Delaware corporation, the
Guarantors (as defined) and The Bank of New York, a New York banking
corporation, as trustee.


 


The Company, the Guarantors and the Trustee agree as
follows for the benefit of each other and for the equal and ratable benefit of
the Holders (as defined) of the  12.0% Senior
Subordinated Notes due 2016 (the “Notes”):


 


ARTICLE
1

DEFINITIONS AND INCORPORATION

BY REFERENCE


 


Section 1.01                                Definitions.


 


“Acquired
Debt” means, with respect to any specified Person:


 


(1)                                  Indebtedness
of any other Person existing at the time such other Person is merged with or
into or became a Subsidiary of such specified Person, whether or not such
Indebtedness is incurred in connection with, or in contemplation of, such other
Person merging with or into, or becoming a Restricted Subsidiary of, such
specified Person; and


 


(2)                                  Indebtedness
secured by a Lien encumbering any asset acquired by such specified Person.


 


provided that the amount of
Acquired Debt only at the time so acquired will include the accreted value
together with any interest thereon that is more than 30 days past due; provided, further, that Indebtedness of such other Person
that is redeemed, defeased, retired or otherwise repaid at the time, or
immediately upon consummation, of the Transaction by which such other Person is
merged with or into or became a Restricted Subsidiary of such Person will not
be Acquired Debt.


 


“Additional
Notes” means Notes (other than the Initial Notes) issued
under this Indenture in accordance with Sections 2.02 and 4.09 hereof, as part
of the same series as the Initial Notes.


 


“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,”
as used with respect to any Person, means the possession, directly or
indirectly, of the power to direct or cause the direction of the management or
policies of such Person, whether through the ownership of voting securities, by
agreement or otherwise; provided that
beneficial ownership of 10% or more of the Voting Stock of a Person will be
deemed to be control.  For purposes


 





















 


of this definition, the
terms “controlling,”  “controlled by” and “under common control with” have correlative meanings.


 


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


 


“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.


 


“Asset Sale”
means


 


(1)                                  the
sale, lease, conveyance or other disposition of any assets or rights; provided that the sale, lease, conveyance or other
disposition of all or substantially all of the assets of the Company and its
Restricted Subsidiaries taken as a whole will be governed by Section 4.15
hereof and/or Section 5.01 hereof and not Section 4.10 hereof; and


 


(2)                                  the
issuance or sale of Equity Interests in any of the Company’s Restricted
Subsidiaries (other than directors’ qualifying shares or shares required by
applicable law to be held by a Person other than the Company or a Restricted
Subsidiary) or the sale of Equity Interests in any of its Subsidiaries.


 


Notwithstanding the
preceding, none of the following items will be deemed to be an Asset Sale:


 


(1)                                  any
single transaction or series of related transactions that involves
(a) assets having a Fair Market Value of less than $1.5 million or
(b) Net Proceeds of less than $1.5 million;


 


(2)                                  a
transfer of assets between or among the Company and its Restricted
Subsidiaries;


 


(3)                                  an
issuance of Equity Interests by a Restricted Subsidiary of the Company to the
Company or to a Restricted Subsidiary of the Company;


 


(4)                                  the
sale, lease, conveyance or other disposition of products, services, inventory,
equipment or accounts receivable in the ordinary course of business, including
any sale or other disposition of damaged, worn-out, obsolete, negligible or
surplus assets in the ordinary course of business;


 


(5)                                  the
sale or other disposition of cash or Cash Equivalents;


 


(6)                                  the
surrender or waiver of contract rights, the settlement, release or surrender of
contract, tort or other litigation claims in the ordinary course of


 


2





















 


business, and the
granting of (or permitted realization of) Liens not prohibited by this
Indenture; and


 


(7)                                  a
Restricted Payment that complies with Section 4.07 hereof or a Permitted
Investment.


 


“Attributable
Debt” in respect of a sale and leaseback transaction means,
at the time of determination, the present value of the obligation of the lessee
for net rental payments during the remaining term of the lease included in such
sale and leaseback transaction including any period for which such lease has
been extended or may, at the option of the lessor, be extended.  Such present value shall be calculated using
a discount rate equal to the rate of interest implicit in such transaction,
determined in accordance with GAAP; provided, however,
that if such sale and leaseback transaction results in a Capital Lease
Obligation, the amount of Indebtedness represented thereby will be determined
in accordance with the definition of “Capital
Lease Obligation.”


 


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


 


“Beneficial Owner”
has the meaning assigned to such term in Rule 13d-3 and Rule 13d-5 under the
Exchange Act, except that in calculating the beneficial ownership of any
particular “person” (as that term is used in
Section 13(d)(3) of the Exchange Act), such “person” will
be deemed to have beneficial ownership of all securities that such “person”
has the right to acquire by conversion or exercise of other securities, whether
such right is currently exercisable or is exercisable only after the passage of
time.  The terms “Beneficially Owns” and “Beneficially
Owned” have a corresponding
meaning.


 


“Board of Directors”
means:


 


(1)                                  with
respect to a corporation, the board of directors of the corporation or any
committee thereof duly authorized to act on behalf of such board;


 


(2)                                  with
respect to a partnership, the board of directors of the general partner of the
partnership;


 


(3)                                  with
respect to a limited liability company, the managing member or members or any
controlling committee of managing members thereof; and


 


(4)                                  with
respect to any other Person, the board or committee of such Person serving a
similar function.


 


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


 


3





















 


(1)                                  85%
of the face amount of all accounts receivable owned by the Company and its
Restricted Subsidiaries as of the end of the most recent fiscal quarter
preceding such date that were not more than 90 days past due; plus


 


(2)                                  50%
of the book value of all inventory, net of reserves, owned by the Company and
its Restricted Subsidiaries as of the end of the most recent fiscal quarter
preceding such date,


 


in each case determined
in accordance with GAAP.


 


“BRS”
means Bruckmann, Rosser, Sherrill & Co. Inc.


 


“Business
Day” means any day other than a Legal Holiday.


 


“Capital
Lease Obligation” means, at the time any determination is to
be made, the amount of the liability in respect of a capital lease that would
at that time be required to be capitalized on a balance sheet prepared in
accordance with GAAP, and the Stated Maturity thereof shall be the date of the
last payment of rent or any other amount due under such lease prior to the
first date upon which such lease may be prepaid by the lessee without payment
of a penalty.


 


“Capital
Stock” means:


 


(1)                                  in
the case of a corporation, corporate stock, including, without limitation,
corporate stock represented by EISs and corporate stock outstanding upon the
separation of EISs into the securities represented thereby;


 


(2)                                  in
the case of an association or business entity, any and all shares, interests,
participations, rights or other equivalents (however designated) of corporate
stock;


 


(3)                                  in
the case of a partnership or limited liability company, partnership interests
or membership interests (whether general or limited); and


 


(4)                                  any
other interest or participation that confers on a Person the right to receive a
share of the profits and losses of, or distributions of assets of, the issuing
Person, but excluding from all of the foregoing any debt securities convertible
into Capital Stock, whether or not such debt securities include any right of
participation with Capital Stock.


 


“Cash
Equivalents” means:


 


(1)                                  United
States dollars and Canadian dollars;


 


4





















 


(2)                                  securities
issued or directly and fully guaranteed or insured by the United States
government or any agency or instrumentality of the United States government (provided that the full faith and credit of the United States
is pledged in support of those securities) having maturities of not more than
one year from the date of acquisition;


 


(3)                                  certificates
of deposit and eurodollar time deposits with maturities of six months or less
from the date of acquisition, bankers’ acceptances with maturities not
exceeding six months and overnight bank deposits, in each case, with any
domestic commercial bank having capital and surplus in excess of
$500.0 million and a Thomson Bank Watch Rating of “B”
or better;


 


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


 


(5)                                  commercial
paper having one of the two highest ratings obtainable from Moody’s Investors
Service, Inc. or Standard & Poor’s Rating Services and, in each case,
maturing within one year after the date of acquisition;


 


(6)                                  money
market funds at least 95% of the assets of which constitute Cash Equivalents of
the kinds described in clauses (1) through (5) of this definition; and


 


(7)                                  readily
marketable direct obligations issued by any State of the United States of
America or any political subdivision thereof having maturities of not more than
one year from the date of acquisition and having one of the two highest rating
categories obtainable from either Moody’s Investors Service, Inc. or Standard
& Poor’s Rating Services.


 


“Change
of Control” means the occurrence of any of the following:


 


(1)                                  the
direct or indirect sale, lease, transfer, conveyance or other disposition
(other than by way of merger or consolidation), in one or a series of related
transactions, of all or substantially all of the properties or assets of the
Company and its Subsidiaries taken as a whole to any “person” (as
that term is used in Section 13(d)(3) of the Exchange Act) other than a
Principal or a Related Party of a Principal;


 


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


 


5





















 


(3)                                  the
consummation of any transaction (including, without limitation, any merger or
consolidation), the result of which is that any “person” (as
defined above), other than the Principals and their Related Parties, becomes
the Beneficial Owner, directly or indirectly, of more than 50% of the Voting
Stock of the Company, measured by voting power rather than number of shares; or


 


(4)                                  the
first day on which a majority of the members of the Board of Directors of the
Company are not Continuing Directors.


 


“Class A Common Stock”
means the Class A Common Stock of the Company, $.01 par value per share.


 


“Class B
Common Stock” means the Class B common stock of the
Company, $0.01 par value per share.


 


“Clearstream”
means Clearstream Banking, S.A.


 


“Company” means B&G Foods, Inc., and any and all
successors thereto.


 


“Consolidated
Cash Flow” means, with respect to any specified Person for
any period, the Consolidated Net Income of such Person for such period plus, without duplication:


 


(1)                                  an
amount equal to any extraordinary loss plus
any net loss realized by such Person or any of its Restricted Subsidiaries in
connection with an Asset Sale, to the extent such losses were deducted in computing
such Consolidated Net Income; plus


 


(2)                                  provision
for taxes based on income or profits of such Person and its Restricted
Subsidiaries for such period, to the extent that such provision for taxes was
deducted in computing such Consolidated Net Income; plus


 


(3)                                  the
Fixed Charges of such Person and its Restricted Subsidiaries for such period,
to the extent that such Fixed Charges were deducted in computing such
Consolidated Net Income; plus


 


(4)                                  depreciation,
amortization (including amortization of goodwill and other intangibles but
excluding amortization of prepaid cash expenses that were paid in a prior
period) and other non-cash expenses (excluding any such non-cash expense to the
extent that it represents an accrual of or reserve for cash expenses in any
future period or amortization of a prepaid cash expense that was paid in a
prior period and of such Person and its Restricted Subsidiaries for such period
including, without limitation, any Mark-to-Market Adjustment) of such Person


 


6





















 


and its Restricted
Subsidiaries for such period to the extent that such depreciation, amortization
and other non-cash expenses were deducted in computing such Consolidated Net
Income; plus


 


(5)                                  if
such period includes the quarter ended September 27, 2003, $2.2 million; plus


 


(6)                                  fees
and expenses related to the Transactions not to exceed $12.0 million in
the aggregate actually incurred within three months of the date hereof; plus


 


(7)                                  charges
incurred within 180 days of the date hereof attributable to the write-off of
bond discount and the write-off of deferred financing fees and costs, relating
to the pay off of existing Indebtedness in an amount not to exceed $18.2
million; minus


 


(8)                                  non-cash
items increasing such Consolidated Net Income for such period (including,
without limitation, any Mark-to-Market Adjustment), other than the accrual of
revenue in the ordinary course of business,


 


in each case, on a consolidated basis and determined
in accordance with GAAP.


 


“Consolidated
Net Income” means, with respect to any specified Person for
any period, the aggregate of the Net Income of such Person and its Restricted
Subsidiaries for such period, on a consolidated basis, determined in accordance
with GAAP; provided that:


 


(1)                                  the
Net Income (but not loss) of any Person that is not a Restricted Subsidiary or
that is accounted for by the equity method of accounting will be included only
to the extent of the amount of dividends or similar distributions paid in cash
to the specified Person or a Restricted Subsidiary of the Person;


 


(2)                                  the
Net Income of any Restricted Subsidiary will be excluded to the extent that the
declaration or payment of dividends or similar distributions by that Restricted
Subsidiary of that Net Income to such Person and its Restricted Subsidiaries is
not at the date of determination permitted without any prior governmental
approval (that has not been obtained) or, directly or indirectly, by operation
of the terms of its charter or any agreement, instrument, judgment, decree,
order, statute, rule or governmental regulation applicable to that Restricted
Subsidiary or its stockholders; and


 


(3)                                  the
cumulative effect of a change in accounting principles will be excluded.


 


7





















 


“Continuing
Directors” means, as of any date of determination, any member
of the Board of Directors of the Company who:


 


(1)                                  was
a member of such Board of Directors on the date of this Indenture; or


 


(2)                                  was
nominated for election or elected to such Board of Directors with the approval
of a majority of the Continuing Directors who were members of such Board of
Directors at the time of such nomination or election.


 


“Corporate
Trust Office of the Trustee” will be at the address of the
Trustee specified in Section 13.02 hereof or such other address as to
which the Trustee may give notice to the Company.


 


“Credit
Agreement” means that certain Credit Agreement, dated as of
October 14, 2004 by and among the Company, the Guarantors, Lehman Commercial
Paper, Inc., as administrative agent, and the lenders from time to time party
thereto, providing initially for up to $30.0 million of revolving credit
borrowings, including any related notes, Guarantees, collateral documents,
instruments and agreements executed in connection therewith, and, in each case,
as amended, restated, modified, renewed, refunded, replaced (whether upon or
after termination or otherwise) or refinanced (including by means of sales of
debt securities to institutional investors) in whole or in part from time to
time.


 


“Credit
Facilities” means, one or more debt facilities (including,
without limitation, the Credit Agreement) or commercial paper facilities, in
each case with banks or other lenders providing for revolving credit loans,
term loans, receivables financing (including through the sale of receivables to
such lenders or to special purpose entities formed to borrow from such lenders
against such receivables) or letters of credit, in each case, as amended,
restated, modified, renewed, refunded, replaced (whether upon or after
termination or otherwise) or refinanced (including by means of sales of debt
securities to institutional investors) in whole or in part from time to time
(whether upon or after termination or otherwise) or refinanced (including by
means of sales of debt securities to institutional investors) in whole or in
part from time to time.


 


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


 


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


 


“Definitive
Note” means a certificated Note registered in the name of the
Holder thereof and issued in accordance with Section 2.06 hereof, substantially
in the form of


 


8





















 


Exhibit A hereto except
that such Note shall not bear the Global Note Legend and shall not have the “Schedule of Exchanges of Interests in the
Global Note” attached thereto.


 


“Depositary”
means, with respect to the Notes issuable or issued in whole or in part in
global form, the Person specified in Section 2.03 hereof as the Depositary
with respect to the Notes, and any and all successors thereto appointed as
depositary hereunder and having become such pursuant to the applicable
provision of this Indenture.


 


“Designated
Senior Indebtedness” means (i) the Indebtedness
represented by the Credit Facilities, (ii) the Senior Notes and
(iii) any other Senior Indebtedness so designated by the Company.


 


“Disqualified
Stock” means any Capital Stock that, by its terms (or by the
terms of any security into which it is convertible, or for which it is
exchangeable, in each case at the option of the holder of the Capital Stock),
or upon the happening of any event, matures or is mandatorily redeemable,
pursuant to a sinking fund obligation or otherwise, or redeemable at the option
of the holder of the Capital Stock, in whole or in part, on or prior to the
date that is 91 days after the date on which the Notes mature.  Notwithstanding the preceding sentence, any
Capital Stock that would constitute Disqualified Stock solely because the
holders of the Capital Stock have the right to require the Company to repurchase
such Capital Stock upon the occurrence of a change of control or an asset sale
will not constitute Disqualified Stock if the terms of such Capital Stock
provide that the Company may not repurchase or redeem any such Capital Stock
pursuant to such provisions unless such repurchase or redemption complies with
Section 4.07 hereof.  The amount of
Disqualified Stock deemed to be outstanding at any time for purposes of this
Indenture will be the maximum amount that the Company and its Restricted Subsidiaries
may become obligated to pay upon the maturity of, or pursuant to any mandatory
redemption provisions of, such Disqualified Stock, exclusive of accrued
dividends.


 


“Domestic
Subsidiaries” means any Restricted Subsidiary of the Company
that was formed under the laws of the United States or any state of the United
States or the District of Columbia or that guarantees or otherwise provides
direct credit support for any Indebtedness of the Company.


 


“Enhanced Income Securities”
or “EISs” means the units of the
Company comprised of Notes and Class A common stock.


 


“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.


 


9





















 


“Excess
Cash” means, with respect to any specified Person for any
period, the Consolidated Cash Flow of that Person for such period, minus the sum of the following, each
determined for such period on a consolidated basis:


 


(1)                                  cash
taxes paid for such Person and its Restricted Subsidiaries; plus


 


(2)                                  cash
interest expense paid by such person and its Restricted Subsidiaries, whether
or not capitalized (including, without limitation, the interest component of
all payments associated with Capital Lease Obligations, imputed interest with
respect to Attributable Debt, commissions, discounts and other fees and charges
incurred in respect of letter of credit or bankers’ acceptance financings, and
net of the effect of all payments made or received pursuant to Hedging
Obligations in respect of interest rates); plus


 


(3)                                  additions
to property, plant and equipment and other capital expenditures of such Person
and its Restricted Subsidiaries that are (or would be) set forth in a
consolidated statement of cash flows of such Person and its Restricted
Subsidiaries for such period prepared in accordance with GAAP, except to the
extent financed by the incurrence of Indebtedness; plus


 


(4)                                  the
aggregate principal amount of long-term Indebtedness repaid by such Person and
its Restricted Subsidiaries and the repayment by such Person and any Restricted
Subsidiary of any short-term Indebtedness that financed capital expenditures
referred to in clause (3) above, excluding any such repayments (a) under
working capital facilities (except to the extent that such Indebtedness so
repaid was incurred to finance capital expenditures as described in clause (3)
above, (b) out of Net Proceeds of Assets Sales as provided in Section 4.10
hereof and (c) through a refinancing involving the incurrence of new long-term
Indebtedness.


 


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


 


“Existing
Indebtedness” means Indebtedness of the Company and its
Restricted Subsidiaries (other than Indebtedness under the Credit Agreement and
the Senior Notes) in existence on the date hereof, reduced to the extent such
amounts are repaid, refinanced or retired.


 


“Fair
Market Value” means the value that would be paid by a willing
buyer to an unaffiliated willing seller in a transaction not involving distress
or necessity of either party, determined in good faith by the Board of
Directors of the Company (unless otherwise provided in this Indenture).


 


10





















 


“First Four Dividend Payments”
means the dividend payments contemplated to be made by the Company to holders
of Class A Common Stock on January 30, 2005, April 30, 2005, July 30, 2005 and
October 30, 2005 for the partial quarterly dividend payment period ending
January 1, 2005 and the full quarterly dividend payment periods ending April 2,
2005, July 2, 2005 and October 1, 2005 provided that the dollar amount of
such quarterly dividend payments shall not be greater than $0.212 per share of
Class A Common Stock.


 


“Fixed
Charge Coverage Ratio” means with respect to any specified
Person for any period, the ratio of the Consolidated Cash Flow of such Person
for such period to the Fixed Charges of such Person for such period.  In the event that the specified Person or any
of its Restricted Subsidiaries incurs, assumes, guarantees, repays,
repurchases, redeems, defeases or otherwise discharges any Indebtedness (other
than ordinary working capital borrowings) or issues, repurchases or redeems
preferred stock subsequent to the commencement of the period for which the
Fixed Charge Coverage Ratio is being calculated and on or prior to the date on
which the event for which the calculation of the Fixed Charge Coverage Ratio is
made (the “Calculation
Date”), then the
Fixed Charge Coverage Ratio will be calculated giving pro forma effect to such
incurrence, assumption, Guarantee, repayment, repurchase, redemption,
defeasance or other discharge of Indebtedness, or such issuance, repurchase or
redemption of preferred stock, and the use of the proceeds therefrom, as if the
same had occurred at the beginning of the applicable four-quarter reference
period.


 


In addition, for
purposes of calculating the Fixed Charge Coverage Ratio:


 


(1)                                  acquisitions
that have been made by the specified Person or any of its Restricted
Subsidiaries, including through mergers or consolidations, or any Person or any
of its Restricted Subsidiaries acquired by the specified Person or any of its
Restricted Subsidiaries, and including any related financing transactions and
including increases in ownership of Restricted Subsidiaries, during the
four-quarter reference period or subsequent to such reference period and on or
prior to the Calculation Date will be given pro forma effect as if they had
occurred on the first day of the four-quarter reference period, and
Consolidated Cash Flow for such reference period will be calculated on a pro
forma basis in accordance with Regulation S-X under the Securities Act;


 


(2)                                  the
Consolidated Cash Flow attributable to discontinued operations, as determined
in accordance with GAAP, and operations or businesses (and ownership interests
therein) disposed of prior to the Calculation Date, will be excluded;


 


(3)                                  the
Fixed Charges attributable to discontinued operations, as determined in
accordance with GAAP, and operations or businesses (and ownership interests
therein) disposed of prior to the Calculation Date, will be


 


11





















 


excluded, but only to the
extent that the obligations giving rise to such Fixed Charges will not be
obligations of the specified Person or any of its Restricted Subsidiaries
following the Calculation Date;


 


(4)                                  any
Person that is a Restricted Subsidiary on the Calculation Date will be deemed
to have been a Restricted Subsidiary at all times during such four-quarter
period;


 


(5)                                  any
Person that is not a Restricted Subsidiary on the Calculation Date will be
deemed not to have been a Restricted Subsidiary at any time during such
four-quarter period; and


 


(6)                                  if
any Indebtedness bears a floating rate of interest, the interest expense on
such Indebtedness will be calculated as if the rate in effect on the
Calculation Date had been the applicable rate for the entire period (taking
into account any Hedging Obligation applicable to such Indebtedness if such
Hedging Obligation has a remaining term as at the Calculation Date in excess of
12 months).


 


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


 


(1)                                  the
consolidated interest expense of such Person and its Restricted Subsidiaries
for such period, whether paid or accrued, including, without limitation,
amortization of debt issuance costs and original issue discount, non-cash
interest payments, the interest component of any deferred payment obligations,
the interest component of all payments associated with Capital Lease
Obligations, imputed interest with respect to Attributable Debt, commissions,
discounts and other fees and charges incurred in respect of letter of credit or
bankers’ acceptance financings, and net of the effect of all payments made or
received pursuant to Hedging Obligations in respect of interest rates; plus


 


(2)                                  the
consolidated interest expense of such Person and its Restricted Subsidiaries
that was capitalized during such period; plus


 


(3)                                  any
interest on Indebtedness of another Person that is guaranteed by such Person or
one of its Restricted Subsidiaries or secured by a Lien on assets of such Person
or one of its Restricted Subsidiaries, whether or not such Guarantee or Lien is
called upon; plus


 


(4)                                  the
product of (a) all dividends, whether paid or accrued and whether or not
in cash, on any series of preferred stock of such Person or any of its Restricted
Subsidiaries, other than dividends on Equity Interests payable solely in Equity
Interests of the Company (other than Disqualified Stock) or to the


 


12





















 


Company or a Restricted
Subsidiary of the Company, times
(b) a fraction, the numerator of which is one and the denominator of which
is one minus the then current combined federal, state and local statutory tax
rate of such Person, expressed as a decimal, in each case, determined on a
consolidated basis in accordance with GAAP; minus


 


(5)                                  charges
attributable to the amortization of expenses relating to the Transactions
incurred within 180 days of the date of this Indenture; minus


 


(6)                                  charges
incurred within 180 days of the date hereof attributable to the write-off of
bond discount and the write-off of deferred financing fees and costs relating
to the pay off of existing Indebtedness in an amount not to exceed
$18.2 million.


 


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


 


“Global
Note Legend” means the legend set forth in
Section 2.06(f)(1) hereof, which is required to be placed on all Global Notes
issued under this Indenture.


 


“Global
Notes” means, individually and collectively, each of the
Global Notes deposited with or on behalf of and registered in the name of the
Depository or its nominee, substantially in the form of Exhibit A hereto and that
bears the Global Note Legend and that has the “Schedule
of Exchanges of Interests in the Global Note”
attached thereto, issued in accordance with Section 2.01, 2.06(b) or
2.06(d) hereof.


 


“Government
Securities” means direct obligations of, or obligations
guaranteed by, the United States of America, and the payment for which the
United States pledges its full faith and credit.


 


“Guarantee”
means a guarantee other than by endorsement of negotiable instruments for
collection or standard contractual indemnities in the ordinary course of
business, direct or indirect, in any manner including, without limitation, by
way of a pledge of assets or through letters of credit or reimbursement
agreements in respect thereof, of all or any part of any Indebtedness (whether
arising by virtue of partnership arrangements, or by agreements to keep-well,
to purchase assets, goods, securities or services, to take or pay or to
maintain financial statement conditions or otherwise).


 


“Guarantors”
means each of:


 


13





















 


(1)                                  BGH
Holdings, Inc., Bloch & Guggenheimer, Inc., Heritage Acquisition Corp.,
Maple Grove Farms of Vermont, Inc., Ortega Holdings Inc., Polaner, Inc.,
Trappey’s Fine Foods, Inc. and William Underwood Company; and


 


(2)                                  any
other Subsidiary of the Company that executes a Note Guarantee in accordance
with the provisions of this Indenture,


 


and their respective successors and assigns, in each
case, until the Note Guarantee of such Person has been released in accordance
with the provisions of this Indenture.


 


“Hedging
Obligations” means, with respect to any specified Person, the
obligations of such Person under:


 


(1)                                  interest
rate swap agreements (whether from fixed to floating or from floating to
fixed), interest rate cap agreements and interest rate collar agreements;


 


(2)                                  other
agreements or arrangements designed to manage interest rates or interest rate
risk; and


 


(3)                                  other
agreements or arrangements designed to protect such Person against fluctuations
in currency exchange rates or commodity prices.


 


“Holder”
means a Person in whose name a Note is registered.


 


“Immaterial Subsidiary”
means, as of any date, any Restricted Subsidiary whose total assets, as of that
date, are less than $100,000 and whose total revenues for the most recent
12-month period do not exceed $100,000; provided that a
Restricted Subsidiary will not be considered to be an Immaterial Subsidiary if
it, directly or indirectly, guarantees or otherwise provides direct credit
support for any Indebtedness of the Company.


 


“Indebtedness”
means, with respect to any specified Person, any indebtedness of such Person
(excluding accrued expenses and trade payables), whether or not contingent:


 


(1)                                  in
respect of borrowed money;


 


(2)                                  evidenced
by bonds, notes, debentures or similar instruments or letters of credit (or
reimbursement agreements in respect thereof);


 


(3)                                  in
respect of banker’s acceptances;


 


(4)                                  representing
Capital Lease Obligations or Attributable Debt in respect of sale and leaseback
transactions;


 


14





















 


(5)                                  representing
the balance deferred and unpaid of the purchase price of any property or
services, which purchase price is due more than six months after the date of
placing such property in service or taking delivery and title thereto, except
any such balance that constitutes an accrued expense or trade payable or any
similar obligation to trade creditors; or


 


(6)                                  representing
any Hedging Obligations,


 


if and to the extent any of the preceding items (other
than letters of credit, Attributable Debt and Hedging Obligations) would appear
as a liability upon a balance sheet of the specified Person prepared in
accordance with GAAP.  In addition, the
term “Indebtedness” includes all Indebtedness of others
secured by a Lien on any asset of the specified Person (whether or not such
Indebtedness is assumed by the specified Person; provided
that if the holder of such Indebtedness has no recourse to such Person other
than to the asset, the amount of such Indebtedness will be deemed to be equal
to the lesser of the value of such asset and the amount of the obligation so
secured) and, to the extent not otherwise included, the Guarantee by the
specified Person of any Indebtedness of any other Person.


 


“Indenture”
means this Indenture, as amended or supplemented from time to time.


 


“Indirect
Participant” means a Person who holds a beneficial interest
in a Global Note through a Participant.


 


“Initial
Notes” means the first $147.1 million aggregate principal
amount of Notes issued under this Indenture, or $165.8 million if the
over-allotment option is exercised in full, on the date hereof.


 


“Investments”
means, with respect to any Person, all direct or indirect investments by such
Person in other Persons (including Affiliates) in the forms of loans (including
Guarantees or other obligations), advances or capital contributions (excluding
accounts receivable, trade credit and advances to customers in the ordinary
course of business and commission, travel and similar advances to officers and
employees made in the ordinary course of business), purchases or other
acquisitions for consideration of Indebtedness, Equity Interests or other
securities, together with all items that are or would be classified as
investments on a balance sheet prepared in accordance with GAAP.  If the Company or any Subsidiary of the
Company sells or otherwise disposes of any Equity Interests of any direct or
indirect Subsidiary of the Company such that, after giving effect to any such
sale or disposition, such Person is no longer a Subsidiary of the Company, the
Company will be deemed to have made an Investment on the date of any such sale
or disposition equal to the Fair Market Value of the Company’ Investments in
such Subsidiary that were not sold or disposed of in an amount determined as
provided in Section 4.07(d) hereof. 
The acquisition by the Company or any Subsidiary of the


 


15





















 


Company of a Person that
holds an Investment in a third Person will not be deemed to be an Investment by
the Company or such Subsidiary in such third Person if the purpose of such
acquisition by the Company or such Subsidiary was not the Investment in such
third Person.  Except as otherwise provided
in this Indenture, the amount of an Investment will be determined at the time
the Investment is made and without giving effect to subsequent changes in
value.


 


“Joint Venture”
means any joint venture between the Company and/or any Restricted Subsidiary
and any other Person if such joint venture is:


 


(1)                                  owned
50% or less by the Company and/or any of its Restricted Subsidiaries; and


 


(2)                                  not
directly or indirectly controlled by or under direct or indirect common control
of the Company and/or any of its Restricted Subsidiaries.


 


“Legal
Holiday” means a Saturday, a Sunday or a day on which banking
institutions in the City of New York or at a place of payment are authorized by
law, regulation or executive order to remain closed.  If a payment date is a Legal Holiday at a
place of payment, payment may be made at that place on the next succeeding day
that is not a Legal Holiday, and no interest shall accrue on such payment for
the intervening period.


 


“Lien”
means, with respect to any asset, any mortgage, lien, pledge, charge, security
interest or encumbrance of any kind in respect of 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
and any filing of or agreement to give any financing statement relating to a
lien on an asset under the Uniform Commercial Code (or equivalent statutes) of
any jurisdiction.


 


“Mark-to-Market Adjustment”
means any non-cash expense or income resulting from current or future
mark-to-market accounting that the Company may apply with respect to any EISs,
shares of Class A common stock, shares of Class B common stock or the senior
subordinated notes issued in connection with the Transactions or at any time
thereafter.


 


“Net Cash Balance”
means, with respect to any specified Person for any fiscal period end, the
amount of cash and cash equivalents set forth on such Person’s balance sheet as
of such period end minus the amount of any funded Indebtedness of such Person
outstanding under any secured revolving credit facilities.


 


16





















 


“Net
Income” means, with respect to any specified Person, the net
income (loss) of such Person, determined in accordance with GAAP and before any
reduction in respect of preferred stock dividends, excluding, however:


 


(1)                                  any
gain (or loss), together with any related provision for taxes on such gain (or
loss), realized in connection with:


 


(a)                                  any
Asset Sale; or


 


(b)                                 the
disposition of any securities by such Person or any of its Restricted
Subsidiaries or the extinguishment of any Indebtedness of such Person or any of
its Restricted Subsidiaries; and


 


(2)                                  any
extraordinary gain (or loss), together with any related provision for taxes on
such extraordinary gain (but not loss).


 


“Net
Proceeds” means the aggregate cash proceeds received by the
Company or any of its Restricted Subsidiaries in respect of any Asset Sale
(including, without limitation, any cash received upon the sale or other
disposition of any non-cash consideration received in any Asset Sale), net of
the direct costs relating to such Asset Sale, including, without limitation,
legal, accounting and investment banking fees, and sales commissions, and any
relocation expenses incurred as a result of the Asset Sale, taxes paid or
payable as a result of the Asset Sale, in each case, after taking into account
any available tax credits or deductions and any tax sharing arrangements, and
amounts required to be applied to the repayment of Indebtedness, other than
Senior Indebtedness, secured by a Lien on the asset or assets that were the
subject of such Asset Sale and any reserve for adjustment in respect of the
sale price of such asset or assets established in accordance with GAAP.


 


“Non-Recourse Debt”
means Indebtedness:


 


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


 


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


 


17





















 


(3)                                  as
to which the lenders have been notified in writing that they will not have any
recourse to the stock or assets of the Company or any of its Restricted
Subsidiaries.


 


“Non-U.S.
Person” means a Person who is not a U.S. Person.


 


“Note
Guarantee” means the Guarantee by each Guarantor of the
Company’s obligations under this Indenture and the Notes, executed pursuant to
the provisions of this Indenture.


 


“Notes”
has the meaning assigned to it in the preamble to this Indenture.  The Initial Notes and the Additional Notes
shall be treated as a single class for all purposes under this Indenture, and
unless the context otherwise requires, all references to the Notes shall
include the Initial Notes and any Additional Notes.


 


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


 


“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 or any Vice-President of such Person.


 


“Officers’
Certificate” means a certificate signed on behalf of the
Company by two Officers of the Company, one of whom must be the principal
executive officer, the principal financial officer, the treasurer or the
principal accounting officer of the Company, that meets the requirements of
Section 13.05 hereof.


 


“Opinion
of Counsel” means an opinion from legal counsel who is
reasonably acceptable to the Trustee, that meets the requirements of
Section 13.05 hereof.  The counsel may
be an employee of or counsel to the Company, any Subsidiary of the Company or
the Trustee.


 


“pari passu Indebtedness” means (i) with respect
to the Company, the Notes and any other senior subordinated Indebtedness of the
Company, other than Senior Indebtedness or secured Indebtedness of the Company
and (ii) with respect to any Guarantor, its Note Guarantee and any other
senior subordinated Indebtedness of such Guarantor, other than Senior
Indebtedness or secured Indebtedness of such Guarantor.


 


“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 DTC, shall include Euroclear and Clearstream).


 


18





















 


“Permitted
Business” means the business of the Company and its
Subsidiaries as existing on the date hereof and any other businesses that are
the same, similar or reasonably related, ancillary or complementary thereto and
reasonable extensions thereof.


 


“Permitted Investments”
means:


 


(1)                                  any
Investment in the Company or in a Restricted Subsidiary of the Company;


 


(2)                                  any
Investment in Cash Equivalents;


 


(3)                                  any
Investment by the Company or any Restricted Subsidiary of the Company in a
Person, if as a result of such Investment:


 


(a)                                  such
Person becomes a Restricted Subsidiary of the Company; or


 


(b)                                 such
Person is merged, consolidated or amalgamated with or into, or transfers or
conveys substantially all of its assets to, or is liquidated into, the Company
or a Restricted Subsidiary of the Company;


 


(4)                                  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 4.10
hereof;


 


(5)                                  any
acquisition of assets or Capital Stock solely in exchange for the issuance of
Equity Interests (other than Disqualified Stock) of the Company;


 


(6)                                  any
Investments received (a) in compromise or resolution of
(i) obligations of trade creditors or customers that were incurred in the
ordinary course of business of the Company or any of its Restricted
Subsidiaries, including pursuant to any plan of reorganization or similar
arrangement upon the bankruptcy or insolvency of any trade creditor or customer
or (ii) litigation, arbitration or other disputes with Persons who are not
Affiliates; or (b) in satisfaction of judgments;


 


(7)                                  Investments
represented by Hedging Obligations;


 


(8)                                  loans
or advances to directors, officers, employees and consultants made in the
ordinary course of business of the Company or the Restricted Subsidiary of the
Company in an aggregate principal amount not to exceed $2.0 million at any
one time outstanding;


 


(9)                                  repurchases
of the Notes;


 


19





















 


(10)                            intercompany
loans to the extent permitted by Section 4.09 hereof;


 


(11)                            loans
by the Company in an aggregate principal amount not exceeding $3.0 million
to employees of the Company or its Restricted Subsidiaries to finance the sale
of the Company’s Capital Stock by the Company to such employees; provided that the net cash proceeds from such sales
respecting such loaned amounts will not be included in the calculation
described in clause (1)(b) of the first paragraph of Section 4.07(a)
hereof;


 


(12)                            any
Investment in existence on the date hereof;


 


(13)                            receivables
owing to the Company or any Restricted Subsidiary if created or acquired in the
ordinary course of business and payable or dischargeable in accordance with
customary trade terms;


 


(14)                            any
Investment in any Person to the extent the Investment consists of prepaid
expenses, negotiable instruments held for collection and lease, utility and
workers’ compensation, performance and other similar deposits made in the
ordinary course of business by the Company or any of its Restricted
Subsidiaries; and


 


(15)                            other
Investments in any Person having an aggregate Fair Market Value (measured on
the date each such Investment was made and without giving effect to subsequent
changes in value), when taken together with all other Investments made pursuant
to this clause (15) that are at the time outstanding, not to exceed
$10.0 million; provided that
if an Investment made pursuant to this clause (15) is made in any Person
that is not a Restricted Subsidiary of the Company at the date of the making of
the Investment and such Person becomes a Restricted Subsidiary after such date,
such Investment will thereafter be deemed to have been made pursuant to
clause (1) above and shall cease to have been made pursuant to this clause (15).


 


“Permitted
Junior Securities” means: debt or equity securities of the
Company or any successor corporation issued pursuant to a plan of
reorganization or readjustment of the Company that are subordinated to the
payment of all then-outstanding Senior Indebtedness of the Company at least to
the same extent that the Notes are subordinated to the payment of all Senior
Indebtedness of the Company on the issue date, so long as to the extent that
any Senior Indebtedness of the Company outstanding on the date of consummation
of any such plan of reorganization or readjustment is not paid in full in cash
on such date, either (a) the holders of any such Senior Indebtedness not
so paid in full in cash have consented to the terms of such plan of
reorganization or readjustment or (b) such holders receive securities
which constitute Senior Indebtedness and which have been determined by the
relevant court to constitute satisfaction in full in cash of any Senior
Indebtedness not paid in full in cash.


 


20





















 


“Permitted
Liens” means:


 


(1)                                  Liens
on assets of the Company or any of its Restricted Subsidiaries securing
Indebtedness and other Obligations under Credit Facilities that were permitted
by the terms of this Indenture to be incurred and/or securing certain Hedging
Obligations;


 


(2)                                  Liens
in favor of the Company or the Guarantors;


 


(3)                                  Liens
on property of a Person existing at the time such Person is merged with or into
or consolidated with the Company or any Subsidiary of the Company; provided that such Liens were not incurred in contemplation
of such merger or consolidation and do not extend to any assets other than
those of the Person merged into or consolidated with the Company or the
Subsidiary;


 


(4)                                  Liens
on property (including Capital Stock) existing at the time of acquisition of
the property by the Company or any Subsidiary of the Company; provided that such Liens were not incurred in contemplation
of, such acquisition;


 


(5)                                  Liens
to secure the performance of statutory obligations, surety or appeal bonds,
performance bonds, deposits to secure the performance of bids, trade contracts,
government contracts, warranty requirements, leases or licenses or other
obligations of a like nature or incurred in the ordinary course of business
(including, without limitation, landlord Liens on leased real property and
rights of offset and set-off);


 


(6)                                  Liens
to secure Indebtedness (including Capital Lease Obligations) permitted by  Section 4.09(b)(5) of this Indenture; covering only
the assets acquired with or financed by such Indebtedness;


 


(7)                                  Liens
existing on the date hereof;


 


(8)                                  Liens
for taxes, assessments or governmental charges or claims that are not yet
delinquent or that are being contested in good faith by appropriate proceedings
promptly instituted and diligently concluded; provided
that any reserve or other appropriate provision as is required in conformity
with GAAP has been made therefor;


 


(9)                                  Liens
imposed by law, such as carriers’, warehousemen’s, landlord’s, materialmen’s,
repairmen’s and mechanics’ Liens, in each case, incurred in the ordinary course
of business;


 


(10)                            survey
exceptions, easements or reservations of, or rights of others for, licenses,
rights-of-way, sewers, electric lines, telegraph and telephone lines


 


21





















 


and other similar
purposes, or zoning or other restrictions as to the use of real property that
were not incurred in connection with Indebtedness and that do not in the
aggregate materially adversely affect the value of said properties or
materially impair their use in the operation of the business of such Person;


 


(11)                            Liens
to secure any Permitted Refinancing Indebtedness permitted to be incurred under
this Indenture; provided, however, that:


 


(a)                                  the
new Lien shall be limited to all or part of the same property and assets that
secured or, under the written agreements pursuant to which the original Lien
arose, could secure the original Lien (plus
improvements and accessions to, such property or proceeds or distributions
thereof); and


 


(b)                                 the
Indebtedness secured by the new Lien is not increased to any amount greater
than the sum of (x) the outstanding principal amount, or, if greater,
committed amount, of the Permitted Refinancing Indebtedness and (y) an amount
necessary to pay any fees and expenses, including premiums, related to such
renewal, refunding, refinancing, replacement, defeasance or discharge;


 


(12)                            Liens
in favor of customs and revenue authorities to secure payment of customs duties
in connection with the importation of goods in the ordinary course of business
and other similar Liens arising in the ordinary course of business;


 


(13)                            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;


 


(14)                            any
interest or title of a lessor under any Capital Lease Obligation permitted to
be incurred under this Indenture; provided that such
Liens do not extend to any property or assets which is not leased property
subject to such Capital Lease Obligation;


 


(15)                            Liens
upon 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;


 


(16)                            leases
or subleases granted to third Persons not interfering with the ordinary course
of business of the Company or any of its Restricted Subsidiaries;


 


22





















 


(17)                            Liens
(other than any Lien imposed by ERISA or any rule or regulation promulgated
thereunder) incurred or deposits made in the ordinary course of business in
connection with workers’ compensation, unemployment insurance, and other types
of social security;


 


(18)                            deposits,
in an aggregate not to exceed $250,000 at any one time outstanding, made in the
ordinary course of business to secure liability to insurance carriers;


 


(19)                            Liens
under licensing agreements for use of intellectual property entered into in the
ordinary course of business;


 


(20)                            judgment
Liens not giving rise to an Event of Default;


 


(21)                            Liens
on the assets of a Restricted Subsidiary of the Company that is not a Guarantor
securing Indebtedness of that Restricted Subsidiary; provided
that such Indebtedness was permitted to be incurred under Section 4.09
hereof;


 


(22)                            Liens
arising out of conditional sale, title retention, consignment or similar
arrangements for the sale of goods entered into by the Company or any of its
Restricted Subsidiaries in the ordinary course of business; and


 


(23)                            Liens
incurred in the ordinary course of business of the Company or any Subsidiary of
the Company with respect to obligations that do not exceed $10.0 million
at any one time outstanding.


 


“Permitted
Refinancing Indebtedness” means any Indebtedness of the
Company or any of its Restricted Subsidiaries issued in exchange for, or the
net proceeds of which are used to renew, refund, refinance, replace, defease or
discharge other Indebtedness of the Company or any of its Restricted
Subsidiaries (other than intercompany Indebtedness); provided that:


 


(1)                                  the
principal amount (or accreted value, if applicable) of such Permitted
Refinancing Indebtedness does not exceed the principal amount (or accreted
value, if applicable) of the Indebtedness renewed, refunded, refinanced,
replaced, defeased or discharged (plus
all accrued interest on the Indebtedness and the amount of all fees and
expenses, including premiums, incurred in connection therewith);


 


(2)                                  such
Permitted Refinancing Indebtedness has a final maturity date later than or the
same as the final maturity date of, and has a Weighted Average Life to Maturity
equal to or greater than the Weighted Average Life to Maturity of, the
Indebtedness being renewed, refunded, refinanced, replaced, defeased or
discharged;


 


23





















 


(3)                                  if
the Indebtedness being renewed, refunded, refinanced, replaced, defeased or
discharged is subordinated in right of payment to the Notes, such Permitted
Refinancing Indebtedness has a final maturity date later than the final
maturity date of, and is subordinated in right of payment to, the Notes on
terms at least as favorable to the holders of Notes as those contained in the
documentation governing the Indebtedness being renewed, refunded, refinanced,
replaced, defeased or discharged; and


 


(4)                                  such
Indebtedness is incurred either by the Company or by the Restricted Subsidiary
who is the obligor on the Indebtedness being renewed, refunded, refinanced,
replaced, defeased or discharged.


 


“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.


 


“Principals”
means the members of management of the Company or any of the Company’s
Restricted Subsidiaries as of the date hereof.


 


“Related
Party” means


 


(1)                                  any
controlling stockholder, 66 2/3% or more owned Subsidiary, or immediate family
member (in the case of an individual) of any Principal; or


 


(2)                                  any
trust, corporation, partnership, limited liability company or other entity, the
beneficiaries, stockholders, partners, members, owners or Persons beneficially
holding a 66 2/3% or more controlling interest of which consist of any one or
more Principals and/or such other Persons referred to in the immediately
preceding clause (1).


 


“Representative”
means the trustee, agent or representative (if any) for an issue of Senior
Indebtedness.


 


“Responsible
Officer,” when used with respect to the Trustee, means any
officer within the Corporate Trust Administration of the Trustee (or any
successor group of the Trustee) or any other officer of the Trustee customarily
performing functions similar to those performed by any of the above designated
officers and also means, with respect to a particular corporate trust matter,
any other officer to whom such matter is referred because of his knowledge of
and familiarity with the particular subject.


 


“Restricted
Investment” means an Investment other than a Permitted
Investment.


 


24





















 


“Restricted
Subsidiary” of a Person means any Subsidiary of the referent
Person that is not an Unrestricted Subsidiary.


 


“SEC”
means the Securities and Exchange Commission.


 


“Securities
Act” means the Securities Act of 1933, as amended.


 


“Securities
Holders Agreement” means the Second Amended and Restated
Securities Holders Agreement dated as of October 14, 2004 among BRS, certain of
the Company’s existing stockholders, certain members of the Company’s Board of
Directors and the Company’s executive officers, as in effect on the date of
this Indenture.


 


“Senior
Indebtedness” with respect to the Company or any Guarantor
means all Indebtedness of the Company or such Guarantor, including interest
thereon (including interest accruing on or after the filing of any petition in
bankruptcy or for reorganization relating to the Company or any Subsidiary of
the Company whether or not a claim for post-filing interest is allowed in such
proceeding) and other amounts (including make-whole payments, fees, expenses
and reimbursement obligations under letters of credit and indemnities) owing in
respect thereof, whether outstanding on the date of this Indenture or
thereafter incurred, unless in the instrument creating or evidencing the same
or pursuant to which the same is outstanding it is provided that such
obligations are not superior in right of payment to the notes or such
Guarantor’s Note Guarantee, as applicable; provided,
however, that Senior Indebtedness
shall not include, as applicable, (i) any obligation of the Company to any
Subsidiary of the Company or of a Guarantor to the Company or any Subsidiary of
the Company, (ii) any liability for Federal, state, local or other taxes
owed or owing by the Company or such Guarantor, (iii) any accounts payable
or other liability to trade creditors arising in the ordinary course of
business (including guarantees thereof or instruments evidencing such
liabilities), (iv) any obligations with respect to any Capital Stock,
(v) any Indebtedness incurred in violation of this Indenture, provided
that Indebtedness under Credit Facilities will not cease to be Senior
Indebtedness under this clause (v) if the lenders of such Indebtedness
obtained an Officer’s Certificate as of the date of incurrence of such
Indebtedness to the effect that such Indebtedness was permitted to be incurred
by this Indenture and (vi) any Indebtedness or Obligations of the Company
or such Guarantor which is pari passu
Indebtedness.


 


“Senior
Note Indenture” means the indenture relating to the Senior
Notes, dated the date hereof.


 


“Senior
Notes” means the Company’s 8.0% Senior Notes due 2011.


 


“Senior
Notes Guarantee” means the Guarantee by each Guarantor of the
Company’s obligations under the Senior Notes, executed pursuant to the
provisions of the Senior Notes Indenture.


 


25





















 


“Significant
Subsidiary” means any Restricted Subsidiary that would be a “significant subsidiary” as defined in Article 1, Rule 1-02 of
Regulation S-X, promulgated pursuant to the Securities Act, as such Regulation
is in effect on the hereof.


 


“Stated
Maturity” means, with respect to any installment of interest
or principal on any series of Indebtedness, the date on which the payment of
interest or principal was scheduled to be paid in the documentation governing
such Indebtedness as of the date hereof, and will not include any contingent
obligations to repay, redeem or repurchase any such interest or principal prior
to the date originally scheduled for the payment thereof.


 


“Subsidiary”
means, with respect to any specified Person:


 


(1)                                  any
corporation, association or other business entity of which more than 50% of the
total voting power of shares of Capital Stock entitled (without regard to the
occurrence of any contingency and after giving effect to any voting agreement
or stockholders’ agreement that effectively transfers voting power) to vote in
the election of directors, managers or trustees of the corporation, association
or other business entity is at the time owned or controlled, directly or
indirectly, by that Person or one or more of the other Subsidiaries of that
Person (or a combination thereof); and


 


(2)                                  any
partnership (a) the sole general partner or the managing general partner
of which is such Person or a Subsidiary of such Person or (b) the only
general partners of which are that Person or one or more Subsidiaries of that
Person (or any combination thereof).


 


“TIA”
means the Trust Indenture Act of 1939, as amended (15 U.S.C.
§§ 77aaa-77bbbb).


 


“Transaction
Services Agreement” means the amended and restated
Transaction Services Agreement, dated as of September 30, 2004, between BRS and
the Company, as in effect on the date hereof.


 


“Transactions”
has the meaning given in the prospectus related to the Notes, dated October 7,
2004.


 


“Trustee”
means The Bank of New York until a successor replaces it in accordance with the
applicable provisions of this Indenture and thereafter means the successor
serving hereunder.


 


“Unrestricted Subsidiary”
means any Subsidiary of the Company that is designated by the Board of
Directors of the Company as an Unrestricted Subsidiary


 


26





















 


pursuant to a resolution
of the Board of Directors, but only to the extent that such Subsidiary:


 


(1)                                  has
no Indebtedness other than Non-Recourse Debt;


 


(2)                                  except
as permitted by Section 4.11 hereof, is not party to any agreement,
contract, arrangement or understanding with the Company or any Restricted
Subsidiary of the Company unless the terms of any such agreement, contract,
arrangement or understanding are no less favorable to the Company or such
Restricted Subsidiary than those that might be obtained at the time from
Persons who are not Affiliates of the Company;


 


(3)                                  is
a Person with respect to which neither the Company nor any of its Restricted
Subsidiaries has any direct or indirect obligation (a) to subscribe for
additional Equity Interests or (b) to maintain or preserve such Person’s
financial condition or to cause such Person to achieve any specified levels of
operating results; and


 


(4)                                  has
not guaranteed or otherwise directly or indirectly provided credit support for
any Indebtedness of the Company or any of its Restricted Subsidiaries.


 


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


 


“Voting
Stock” of any specified Person as of any date means the
Capital Stock of such Person that is at the time entitled to vote in the
election of the Board of Directors of such Person.


 


“Weighted
Average Life to Maturity” means, when applied to any
Indebtedness at any date, the number of years obtained by dividing:


 


(1)                                  the
sum of the products obtained by multiplying (a) the amount of each then
remaining installment, sinking fund, serial maturity or other required payments
of principal, including payment at final maturity, in respect of the
Indebtedness, by (b) the number of years (calculated to the nearest
one-twelfth) that will elapse between such date and the making of such payment;
by


 


(2)                                  the
then outstanding principal amount of such Indebtedness.


 


27





















 


Section 1.02                                Other Definitions.


 


	
  Term

  	
   

  	
  Defined in

  Section

  
	
  “Affiliate Transaction”

  	
   

  	
  4.11

  
	
  “Asset Sale Offer”

  	
   

  	
  3.09

  
	
  “Authentication Order”

  	
   

  	
  2.02

  
	
  “Automatic Exchange”

  	
   

  	
  4.21

  
	
  “Blockage Notice”

  	
   

  	
  10.03

  
	
  “Change of Control Offer”

  	
   

  	
  4.15

  
	
  “Change of Control Payment”

  	
   

  	
  4.15

  
	
  “Change of Control Payment
  Date”

  	
   

  	
  4.15

  
	
  “Covenant Defeasance”

  	
   

  	
  8.03

  
	
  “DTC”

  	
   

  	
  2.03

  
	
  “Event of Default”

  	
   

  	
  6.01

  
	
  “Excess Proceeds”

  	
   

  	
  4.10

  
	
  “Incremental Funds”

  	
   

  	
  4.07

  
	
  “incur”

  	
   

  	
  4.09

  
	
  “Legal Defeasance”

  	
   

  	
  8.02

  
	
  “Note Units”

  	
   

  	
  4.21

  
	
  “Offer Amount”

  	
   

  	
  3.09

  
	
  “Offer Period”

  	
   

  	
  3.09

  
	
  “pay the Notes”

  	
   

  	
  10.03

  
	
  “Paying Agent”

  	
   

  	
  2.03

  
	
  “Payment Blockage Period”

  	
   

  	
  10.03

  
	
  “Payment Default”

  	
   

  	
  6.01

  
	
  “Permitted Debt”

  	
   

  	
  4.09

  
	
  “Purchase Date”

  	
   

  	
  3.09

  
	
  “Registrar”

  	
   

  	
  2.03

  
	
  “Restricted Payments”

  	
   

  	
  4.07

  
	
  “Trustee”

  	
   

  	
  8.05

  



 


Section 1.03                                Incorporation by Reference of
Trust Indenture Act.


 


Whenever this Indenture refers to a provision of the
TIA, the provision is incorporated by reference in and made a part of this
Indenture.


 


The following TIA terms used in this Indenture have
the following meanings:


 


“indenture securities” means the
Notes;


 


“indenture security Holder” means
a Holder of a Note;


 


“indenture to be qualified” means
this Indenture;


 


28





















 


“indenture trustee” or “institutional trustee” means the Trustee; and


 


“obligor” on the Notes and the
Note Guarantees means the Company and the Guarantors, respectively, and any
successor obligor upon the Notes and the Note Guarantees, respectively.


 


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


 


Section 1.04                                Rules of Construction.


 


Unless the context otherwise requires:


 


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


 


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


 


(3)                                  “or”
is not exclusive;


 


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


 


(5)                                  “will” shall be interpreted to express a command;


 


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


 


(7)                                  references to sections of or rules
under the Securities Act will be deemed to include substitute, replacement of
successor sections or rules adopted by the SEC from time to time.


 


ARTICLE 2

THE NOTES


 


Section 2.01                                Form and Dating.


 


(a)                                  General. 
The Notes and the Trustee’s certificate of authentication will be
substantially in the form of Exhibit A hereto. 
The Notes may have notations, legends or endorsements required by law,
stock exchange rule or usage.  Each Note
will be dated the date of its authentication. 
The Notes shall be in denominations of $7.15 and integral multiples
thereof.


 


29





















 


The terms and provisions contained in the Notes will
constitute, and are hereby expressly made, a part of this Indenture and the
Company, the Guarantors and the Trustee, by their execution and delivery of
this Indenture, expressly agree to such terms and provisions and to be bound
thereby.  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 will be substantially in the form of Exhibit
A 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 will be substantially in the form of Exhibit A1 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 will
represent such of the outstanding Notes as will be specified therein and each
shall provide that it represents 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 will be made by the
Trustee or the Custodian, at the direction of the Trustee, in accordance with
instructions given by the Holder thereof as required by Section 2.06
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” and “Customer Handbook” of Clearstream will be applicable to
transfers of beneficial interests in the Global Notes that are held by
Participants through Euroclear or Clearstream.


 


Section 2.02                                Execution and Authentication.


 


At least one Officer must sign the Notes for the
Company by manual or facsimile signature.


 


If an Officer whose signature is on a Note no longer
holds that office at the time a Note is authenticated, the Note will
nevertheless be valid.


 


A Note will not be valid until authenticated by the
manual signature of the Trustee.  The
signature will be conclusive evidence that the Note has been authenticated
under this Indenture.


 


The Trustee will, upon receipt of a written order of
the Company signed by at least one Officer (an “Authentication Order”),
authenticate (1) Initial Notes for original issue on the date of issuance of
the Initial Notes in an aggregate principal amount of


 


30





















 


$152,347,829.40, and (2)
subject to the terms of this Indenture, Additional Notes from time to time for
original issue in an amount specified by the Company.  The aggregate principal amount of Notes
outstanding at any time may not exceed the aggregate principal amount of Notes
authorized for issuance by the Company pursuant to one or more Authentication
Orders, except as provided in Section 2.07 hereof.


 


The Trustee may appoint an authenticating agent
acceptable to the Company 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
by such agent.  An authenticating agent
has the same rights as an Agent to deal with Holders or an Affiliate of the
Company.


 


Section 2.03                                Registrar and Paying Agent.


 


The Company will maintain an office or agency where
Notes may be presented for registration of transfer or for exchange (“Registrar”) and an office or agency where
Notes may be presented for payment (“Paying Agent”).  The Registrar will keep a register of the
Notes and of their transfer and exchange. 
The Company may appoint one or more co-registrars and one or more
additional paying agents.  The term “Registrar”
includes any co-registrar and the term “Paying
Agent” includes any additional
paying agent.  The Company may change any
Paying Agent or Registrar without notice to any Holder.  The Company will notify the Trustee in
writing of the name and address of any Agent not a party to this
Indenture.  If the Company fails to
appoint or maintain another entity as Registrar or Paying Agent, the Trustee
shall act as such.  The Company or any of
its Subsidiaries may act as Paying Agent or Registrar.


 


The Company initially appoints The Depositary Trust
Company (“DTC”) to act as Depositary with respect to the Global Notes.  The Trustee shall act as custodian for the
Global Notes that represent Notes held as part of EISs on behalf of Cede &
Co., the registered owner of EISs and such Global Notes will be registered in
the name of the Trustee as custodian for Cede & Co, DTC’s nominee.  The Trustee shall act as custodian for the
Global Notes that represent Notes held separately (not in the form of EISs) on
behalf of DTC and such Global Notes shall be registered in the name of Cede
& Co., DTC’s nominee.


 


The Company initially appoints the Trustee to act as
the Registrar and Paying Agent and to act as Custodian with respect to the
Global Notes.


 


Section 2.04                                Paying Agent to Hold Money in
Trust.


 


The Company will require each Paying Agent other than
the Trustee to agree in writing that the Paying Agent will hold in trust for
the benefit of Holders or the Trustee all money held by the Paying Agent for
the payment of principal, premium, if any, or interest on the Notes, and will
notify the Trustee of any default by the Company in


 


31





















 


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 Company 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 Company or a Subsidiary) will have no further
liability for the money.  If the Company
or a Subsidiary acts as Paying Agent, it will 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 Company, the Trustee will serve as
Paying Agent for the Notes.


 


Section 2.05                                Holder Lists.


 


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


 


Section 2.06                                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 will be exchanged by the Company for Definitive Notes if:


 


(1)                                  the Company delivers to the Trustee
notice from the Depositary that it is unwilling or unable to continue to act as
Depositary or that it is no longer a clearing agency registered under the
Exchange Act and, in either case, a successor Depositary is not appointed by
the Company within 120 days after the date of such notice from the Depositary;


 


(2)                                  the Company in its 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


 


(3)                                  there has occurred and is
continuing a Default or Event of Default with respect to the Notes.


 


Upon the occurrence of either of the preceding events
in (1) or (2) 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


 


32





















 


provided in Sections 2.07
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 2.06 or Section 2.07 or
2.10 hereof, 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 2.06(a),
however, beneficial interests in a Global Note may be transferred and exchanged
as provided in Section 2.06(b) or (c) hereof.


 


(b)                                 Transfer and
Exchange of Beneficial Interests in the Global Notes. 
The transfer and exchange of beneficial interests in the Global Notes
will be effected through the Depositary, in accordance with the provisions of
this Indenture and the Applicable Procedures. 
Beneficial interests in any Global Note may be transferred to Persons
who take delivery thereof in the form of a beneficial interest in a Global
Note.  No written orders or instructions
shall be required to be delivered to the Registrar to effect the transfers
described in this Section 2.06(b).


 


(c)                                  Transfer and
Exchange of Beneficial Interests for Definitive Notes. 
If any holder of a beneficial interest in a Global Note proposes to
exchange such beneficial interest for a Definitive Note or to transfer such
beneficial interest to a Person who takes delivery thereof in the form of a
Definitive Note, the Trustee will cause the aggregate principal amount of the
applicable Global Note to be reduced accordingly pursuant to
Section 2.06(g) hereof, and the Company will execute and the Trustee will
authenticate and deliver to the Person designated in the instructions a
Definitive Note in the appropriate principal amount.  Any Definitive Note issued in exchange for a
beneficial interest pursuant to this Section 2.06(c) will be registered in
such name or names and in such authorized denomination or denominations as the
holder of such beneficial interest requests through instructions to the
Registrar from or through the Depositary and the Participant or Indirect
Participant.


 


(d)                                 Transfer and
Exchange of Definitive Notes for Beneficial Interests. 
A Holder of a Definitive Note may exchange such Note for a beneficial
interest in a Global Note or transfer such Definitive Notes to a Person who
takes delivery thereof in the form of a beneficial interest in a Global Note at
any time.  Upon receipt of a request for
such an exchange or transfer, the Trustee will cancel the applicable Definitive
Note and increase or cause to be increased the aggregate principal amount of
one of the Global Notes.  If any such
exchange or transfer from a Definitive Note to a beneficial interest is
effected pursuant to this paragraph at a time when a Global Note has not yet
been issued, the Company will issue and, upon receipt of an Authentication
Order in accordance with Section 2.02 hereof, the Trustee will
authenticate one or more 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


 


33





















 


provisions of this
Section 2.06(e), the Registrar will register the transfer or exchange of
Definitive Notes.  Prior to such
registration of transfer or exchange, the requesting Holder must 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.


 


(f)                                    Legends. 
Each Global Note will bear a legend in substantially the following form:


 


“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 (1) THE
TRUSTEE MAY MAKE SUCH NOTATIONS HEREON AS MAY BE REQUIRED PURSUANT TO SECTION
2.06 OF THE INDENTURE, (2) THIS GLOBAL NOTE MAY BE EXCHANGED IN WHOLE BUT
NOT IN PART PURSUANT TO SECTION 2.06(a) OF THE INDENTURE, (3) THIS GLOBAL
NOTE MAY BE DELIVERED TO THE TRUSTEE FOR CANCELLATION PURSUANT TO SECTION 2.11
OF THE INDENTURE AND (4) THIS GLOBAL NOTE MAY BE TRANSFERRED TO A
SUCCESSOR DEPOSITARY WITH THE PRIOR WRITTEN CONSENT OF B&G FOODS, INC.
(F/K/A/ B&G FOODS HOLDINGS CORP.)


 


[Include
the following paragraph for Global Notes that represent Notes held separately
(not in the form of EISs:  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 COMPANY OR ITS AGENT FOR
REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS
REGISTERED IN THE NAME OF CEDE & CO. OR SUCH OTHER NAME AS 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.”]


 


[Include
the following paragraph for Global Notes that represent Notes held as part of
EISs:  UNLESS AND UNTIL IT
IS EXCHANGED IN WHOLE OR IN PART FOR


 


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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 BANK OF NEW YORK (101 BARCLAY STREET, NEW YORK, NEW YORK) IN ITS CAPACITY
AS CUSTODIAN FOR CEDE & CO., DTC’S NOMINEE, THE REGISTERED OWNER OF EISs,
TO THE COMPANY OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT,
AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR SUCH
OTHER NAME AS MAY BE REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF THE BANK OF
NEW YORK (AND ANY PAYMENT IS MADE TO CEDE & CO. OR SUCH OTHER ENTITY AS MAY
BE REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF THE BANK OF NEW YORK), ANY
TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON
IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, THE BANK OF NEW YORK, AS
CUSTODIAN FOR CEDE & CO., HAS AN INTEREST HEREIN.”]


 


(g)                                 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 canceled in whole and not in
part, each such Global Note will be returned to or retained and canceled 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 will be reduced accordingly and an endorsement
will 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 will be increased accordingly and an endorsement will be
made on such Global Note by the Trustee or by the Depositary at the direction
of the Trustee to reflect such increase.


 


(h)                                 General Provisions Relating to
Transfers and Exchanges.


 


(1)                                  To permit registrations of
transfers and exchanges, the Company will execute and the Trustee will
authenticate Global Notes and Definitive Notes upon receipt of an
Authentication Order in accordance with Section 2.02 hereof or at the
Registrar’s request.


 


35





















 


(2)                                  No service charge will 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 Company 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
Sections 2.10, 3.06, 3.09, 4.10, 4.15 and 9.05 hereof).


 


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


 


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


 


(5)                                  Neither the Registrar nor the
Company will 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 3.02 hereof and ending at the close of business on the day of
selection;


 


(B)                                to register the transfer of or to
exchange any Note 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 a record date and the next succeeding interest payment
date.


 


(6)                                  Prior to due presentment for the
registration of a transfer of any Note, the Trustee, any Agent and the Company
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 Company shall be affected by notice to the contrary.


 


(7)                                  The Trustee will authenticate
Global Notes and Definitive Notes in accordance with the provisions of
Section 2.02 hereof.


 


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(8)                                  All certifications, certificates
and Opinions of Counsel required to be submitted to the Registrar pursuant to
this Section 2.06 to effect a registration of transfer or exchange may be
submitted by facsimile.


 


Section 2.07                                Replacement Notes.


 


If any mutilated Note is surrendered to the Trustee or
the Company and the Trustee receives evidence to its satisfaction of the
destruction, loss or theft of any Note, the Company will issue and the Trustee,
upon receipt of an Authentication Order, will authenticate a replacement Note
if the Trustee’s requirements are met. 
If required by the Trustee or the Company, an indemnity bond must be
supplied by the Holder that is sufficient in the judgment of the Trustee and
the Company to protect the Company, the Trustee, any Agent and any
authenticating agent from any loss that any of them may suffer if a Note is
replaced.  The Company may charge for its
expenses in replacing a Note.


 


Every replacement Note is an additional obligation of
the Company and will be entitled to all of the benefits of this Indenture
equally and proportionately with all other Notes duly issued hereunder.


 


Section 2.08                                Outstanding Notes.


 


The Notes outstanding at any time are all the Notes
authenticated by the Trustee except for those canceled by it, 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 2.08 as not outstanding.  Except as set forth in Section 2.09
hereof, a Note does not cease to be outstanding because the Company or an
Affiliate of the Company holds the Note; however, Notes held by the Company or
a Subsidiary of the Company shall not be deemed to be outstanding for purposes of
Section 3.07(a) hereof.


 


If a Note is replaced pursuant to Section 2.07
hereof, it ceases to be outstanding unless the Trustee receives proof
satisfactory to it that the replaced Note is held by a protected purchaser.


 


If the principal amount of any Note is considered paid
under Section 4.01 hereof, it ceases to be outstanding and interest on it
ceases to accrue.


 


If the Paying Agent (other than the Company, a
Subsidiary or an Affiliate of any thereof) holds, on a redemption date or
maturity date, money sufficient to pay Notes payable on that date, then on and
after that date such Notes will be deemed to be no longer outstanding and will
cease to accrue interest.


 


37





















 


Section 2.09                                Treasury Notes.


 


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


 


Section 2.10                                Temporary Notes.


 


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


 


Holders of temporary Notes will be entitled to all of
the benefits of this Indenture.


 


Section 2.11                                Cancellation.


 


The Company at any time may deliver Notes to the
Trustee for cancellation.  The Registrar
and Paying Agent will forward to the Trustee any Notes surrendered to them for
registration of transfer, exchange or payment. 
The Trustee and no one else will cancel all Notes surrendered for
registration of transfer, exchange, payment, replacement or cancellation and
will dispose of such canceled Notes (subject to the record retention
requirement of the Exchange Act) in its customary manner.  Certification of the disposition of all
canceled Notes will be delivered to the Company upon its written request
therefor.  The Company 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.


 


If the Company defaults in a payment of interest on
the Notes, it will pay the defaulted interest in any lawful manner plus, to the extent lawful, interest
payable on the defaulted interest, to the Persons who are Holders on a
subsequent special record date, in each case at the rate provided in the Notes
and in Section 4.01 hereof.  The
Company will notify the Trustee in writing of the amount of defaulted interest
proposed to be paid on each Note and the date of the proposed payment.  The Company will fix or cause to be fixed
each such special record date and payment date; provided
that no such special


 


38





















 


record date may be less
than 10 days prior to the related payment date for such defaulted
interest.  At least 15 days before the
special record date, the Company (or, upon the written request of the Company,
the Trustee in the name and at the expense of the Company) will mail or cause
to be mailed to Holders a notice that states the special record date, the related
payment date and the amount of such interest to be paid.


 


Section 2.13                                Maturity.


 


The Notes shall mature on October 30, 2016.


 


Section 2.14                                Tax Treatment.


 


The Company agrees, and by acceptance of a beneficial
ownership interest in the Notes, each beneficial owner of Notes shall be deemed
to have agreed (1) to treat such beneficial owner as the owner of the
Notes for all purposes, including the preparation and filing of any United
States federal, state, local or foreign tax return, report, or other information;
(2) to treat the Notes as indebtedness for all tax purposes and
(3) if such beneficial owner’s Notes are represented by EISs, to treat the
acquisition of any EIS as the acquisition of the Notes and shares of
Class A Common Stock which are represented by such EIS and to allocate the
purchase price of such EIS between the Notes and the shares of Class A
Common Stock in the proportions set forth in paragraph 20 of the Notes.  In the case of a beneficial owner acquiring
EISs in the initial offering thereof, such purchase price allocation shall be
(i) $7.15 allocated to the Note represented by each EIS and (ii) $7.85
allocated to the share of Class A Common Stock represented by such EIS.


 


Section
2.15                                CUSIP Numbers.


 


The Company 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 Company
will promptly notify the Trustee in writing of any change in the “CUSIP”
numbers.


 


39





















 


ARTICLE
3

REDEMPTION AND PREPAYMENT


 


Section 3.01                                Notices to Trustee.


 


If the Company elects to redeem Notes pursuant to the
optional redemption provisions of Section 3.07 hereof, it must furnish to
the Trustee, at least 45 days but not more than 60 days before a redemption
date, an Officers’ Certificate setting forth:


 


(1)                                  the clause of this Indenture
pursuant to which the redemption shall occur;


 


(2)                                  the redemption date;


 


(3)                                  the principal amount of Notes to be
redeemed; and


 


(4)                                  the redemption price.


 


Section 3.02                                Selection of Notes to Be Redeemed
or Purchased.


 


If less than all of the Notes are to be redeemed or
purchased in an offer to purchase at any time, the Trustee will select Notes
for redemption or purchase in principal amounts of $7.15 or integral multiples
thereof, by lot, on a pro rata basis,
by another method the Trustee deems appropriate, except:


 


(1)                                  if the Notes are listed on any
national securities exchange, in compliance with the requirements of the
principal national securities exchange on which the Notes are listed; or


 


(2)                                  if otherwise required by law.


 


In the event of partial redemption or purchase by lot,
the particular Notes to be redeemed or purchased will be selected, unless
otherwise provided herein, not less than 30 nor more than 60 days prior to the
redemption or purchase date by the Trustee from the outstanding Notes not
previously called for redemption or purchase.


 


The Trustee will promptly notify the Company in
writing of the Notes selected for redemption or purchase and, in the case of
any Note selected for partial redemption or purchase, the principal amount
thereof to be redeemed or purchased. 
Notes and portions of Notes selected will be in amounts of $7.15 or
whole multiples of $7.15; except that if all of the Notes of a Holder are to be
redeemed or purchased, the entire outstanding amount of Notes held by such Holder,
even if not a multiple of $7.15, shall be redeemed or purchased.  Except as provided in the preceding sentence,
provisions of this Indenture that apply to Notes called for redemption or
purchase also apply to portions of Notes called for redemption or purchase.


 


40





















 


Section 3.03                                Notice of Redemption.


 


Subject to the provisions of Section 3.09 hereof,
at least 30 days but not more than 60 days before a redemption date, the
Company will 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, except that redemption notices may be mailed more than 60 days prior
to a redemption date if the notice is issued in connection with a defeasance of
the Notes or a satisfaction and discharge of this Indenture pursuant to
Articles 8 or 11 hereof.


 


The notice will identify the Notes (including CUSIP
numbers) to be redeemed and will state:


 


(1)                                  the redemption date;


 


(2)                                  the redemption price;


 


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


 


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


 


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


 


(6)                                  that, unless the Company defaults
in making such redemption payment, interest on Notes called for redemption
ceases to accrue on and after the redemption date;


 


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


 


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


 


At the Company’s request, the Trustee will give the
notice of redemption in the Company’s name and at its expense; provided, however, that the Company has delivered to the
Trustee, at least 45 days prior to the redemption date, 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.


 


41





















 


Section 3.04                                Effect of Notice of Redemption.


 


Once notice of redemption is mailed in accordance with
Section 3.03 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 3.05                                Deposit of Redemption or Purchase
Price.


 


One Business Day prior to the redemption or purchase
date, the Company will deposit with the Trustee or with the Paying Agent prior
to 10:00 a.m. Eastern Time money sufficient to pay the redemption or purchase
price of and accrued interest on all Notes to be redeemed or purchased on that
date.  The Trustee or the Paying Agent
will promptly return to the Company any money deposited with the Trustee or the
Paying Agent by the Company in excess of the amounts necessary to pay the
redemption or purchase price of, and accrued interest on, all Notes to be
redeemed or purchased.


 


If the Company complies with the provisions of the
preceding paragraph, on and after the redemption or purchase date, interest
will cease to accrue on the Notes or the portions of Notes called for
redemption or purchase.  If a Note is
redeemed or purchased on or after an interest record date but on or prior to
the related interest payment date, then any accrued and unpaid interest shall
be paid to the Person in whose name such Note was registered at the close of
business on such record date.  If any
Note called for redemption or purchase is not so paid upon surrender for
redemption or purchase because of the failure of the Company to comply with the
preceding paragraph, interest shall be paid on the unpaid principal, from the
redemption or purchase 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 4.01 hereof.


 


Section 3.06                                Notes Redeemed or Purchased in
Part.


 


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


 


Section 3.07                                Optional Redemption.


 


(a)                                  On
and after October 30, 2009, the Company may redeem all or a part of the Notes
upon not less than 30 nor more than 60 days notice, at the redemption prices
(expressed as percentages of principal amount) set forth below plus accrued and
unpaid interest on the Notes redeemed, to the applicable redemption date, if
redeemed during the twelve-month period beginning on October 30 of the years
indicated below, subject to the rights of Holders of Notes on the relevant
record date to receive interest on the relevant interest payment date: 


 


42





















 


	
  Year

  	
   

  	
  Percentage

  	
   

  
	
  2009

  	
   

  	
  106.000

  	
  %

  
	
  2010

  	
   

  	
  104.000

  	
  %

  
	
  2011

  	
   

  	
  102.000

  	
  %

  
	
  2012 and thereafter

  	
   

  	
  100.000

  	
  %

  



 


Unless the Company defaults in the payment of the
redemption price, interest will cease to accrue on the Notes or portions
thereof called for redemption on the applicable redemption date.


 


(b)                                 The Notes will not be redeemable at
the Company’s option prior to October 30, 2009.


 


(c)                                  Any redemption pursuant to this
Section 3.07 shall be made pursuant to the provisions of Sections 3.01
through 3.06 hereof.


 


(d)                                 Any exercise by the Company of its
option to redeem the Notes, in whole or in part, will result in an automatic
separation of the EISs upon the redemption date.


 


Section 3.08                                Mandatory Redemption.


 


The Company is not required to make mandatory
redemption or sinking fund payments with respect to the Notes.


 


Section 3.09                                Offer to Purchase by Application
of Excess Proceeds.


 


In the event that, pursuant to Section 4.10
hereof, the Company is required to commence an offer to all Holders to purchase
Notes (an “Asset Sale
Offer”), it will
follow the procedures specified below.


 


The Asset Sale Offer shall be made to all Holders and
all holders of other Indebtedness that is pari
passu with the Notes containing provisions similar to those set
forth in this Indenture with respect to offers to purchase or redeem with the
proceeds of sales of assets.  The Asset
Sale Offer will remain open for a period of at least 20 Business Days following
its commencement and not more than 30 Business Days, except to the extent that
a longer period is required by applicable law (the “Offer Period”).  No later than three Business Days after the
termination of the Offer Period (the “Purchase Date”),
the Company will apply all Excess Proceeds (the “Offer
Amount”) to the purchase of Notes and such other pari passu Indebtedness (on a pro rata
basis, if applicable) or, if less than the Offer Amount has been tendered, all
Notes and other Indebtedness tendered in response to the Asset Sale Offer.  Payment for any Notes so purchased will be
made in the same manner as interest payments are made.


 


43


















 


If the Purchase Date is on or after an interest record
date and on or before the related interest payment date, any accrued and unpaid
interest will be paid to the Person in whose name a Note is registered at the
close of business on such record date, and no additional interest will be
payable to Holders who tender Notes pursuant to the Asset Sale Offer.


 


Upon the commencement of an Asset Sale Offer, the
Company will send, by first class mail, a notice to the Trustee and each of the
Holders, with a copy to the Trustee.  The
notice will contain all instructions and materials necessary to enable such
Holders to tender Notes pursuant to the Asset Sale Offer.  The notice, which will govern the terms of
the Asset Sale Offer, will state:


 


(1)                                  that the Asset Sale Offer is being
made pursuant to this Section 3.09 and Section 4.10 hereof and the
length of time the Asset Sale Offer will remain open;


 


(2)                                  the Offer Amount, the purchase
price and the Purchase Date;


 


(3)                                  that any Note not tendered or
accepted for payment will continue to accrue interest;


 


(4)                                  that, unless the Company defaults
in making such payment, any Note accepted for payment pursuant to the Asset
Sale Offer will cease to accrue interest after the Purchase Date;


 


(5)                                  that Holders electing to have a Note
purchased pursuant to an Asset Sale Offer may elect to have Notes purchased in
integral multiples of $7.15 only;


 


(6)                                  that Holders electing to have Notes
purchased pursuant to any Asset Sale Offer will be required to surrender the
Note, with the form entitled “Option
of Holder to Elect Purchase”
attached to the Notes completed, or transfer by book-entry transfer, to the
Company, a Depositary, if appointed by the Company, or a Paying Agent at the
address specified in the notice at least three days before the Purchase Date;


 


(7)                                  that Holders will be entitled to
withdraw their election if the Company, the Depositary or the Paying Agent, as
the case may be, receives, not later than the expiration of the Offer Period, a
telegram, telex, facsimile transmission or letter setting forth the name of the
Holder, the principal amount of the Note the Holder delivered for purchase and
a statement that such Holder is withdrawing his election to have such Note
purchased;


 


44





















 


(8)                                  that, if the aggregate principal
amount of Notes and other pari passu
Indebtedness surrendered by holders thereof exceeds the Offer Amount, the
Company will select the Notes and other pari passu
Indebtedness to be purchased on a pro rata basis,
based on the principal amount of Notes and such other pari passu
Indebtedness surrendered (with such adjustments as may be deemed appropriate by
the Company so that only Notes in denominations of $7.15, or integral multiples
thereof, will be purchased); and


 


(9)                                  that Holders whose Notes were
purchased only in part will be issued new Notes equal in principal amount to
the unpurchased portion of the Notes surrendered (or transferred by book-entry
transfer).


 


On or before the Purchase Date, the Company will, to the
extent lawful, accept for payment, on a pro rata basis,
to the extent necessary, the Offer Amount of Notes or portions thereof tendered
pursuant to the Asset Sale Offer, or if less than the Offer Amount has been
tendered, all Notes tendered, and will deliver or cause to be delivered to the
Trustee the Notes properly accepted together with an Officers’ Certificate
stating that such Notes or portions thereof were accepted for payment by the
Company in accordance with the terms of this Section 3.09.  The Company, the Depositary or the Paying
Agent, as the case may be, will promptly (but in any case not later than five
days after the Purchase Date) mail or deliver to each tendering Holder an
amount equal to the purchase price of the Notes tendered by such Holder and
accepted by the Company for purchase, and the Company will promptly issue a new
Note, and the Trustee, upon written request from the Company, will authenticate
and mail or deliver (or cause to be transferred by book entry) such new Note to
such Holder, in a principal amount equal to any unpurchased portion of the Note
surrendered.  Any Note not so accepted
shall be promptly mailed or delivered by the Company to the Holder thereof.  The Company will publicly announce the
results of the Asset Sale Offer on the Purchase Date.


 


Other than as specifically provided in this
Section 3.09, any purchase pursuant to this Section 3.09 shall be
made pursuant to the provisions of Sections 3.01 through 3.06 hereof.


 


ARTICLE 4

COVENANTS


 


Section 4.01                                Payment of Notes.


 


The Company will 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 will be considered paid on the date due if the
Paying Agent, if other than the Company or a Subsidiary thereof, holds as of
10:00 a.m. Eastern Time on the due date money deposited by the Company in
immediately available funds and designated for and sufficient to pay all
principal, premium, if any, and interest then due.


 


45





















 


The Company will pay interest (including post-petition
interest in any proceeding under any Bankruptcy Law) on overdue principal at
the rate equal to 1% per annum in excess of the then applicable interest rate
on the Notes to the extent lawful; it will pay interest (including
post-petition interest in any proceeding under any Bankruptcy Law) on overdue
installments of interest (without regard to any applicable grace period) at the
same rate to the extent lawful.


 


Section 4.02                                Maintenance of Office or Agency.


 


The Company will 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 Company in respect of the Notes and this
Indenture may be served.  The Company
will give prompt written notice to the Trustee of the location, and any change
in the location, of such office or agency. 
If at any time the Company fails to maintain any such required office or
agency or fails to furnish the Trustee with the address thereof, such
presentations, surrenders, notices and demands may be made or served at the
Corporate Trust Office of the Trustee.


 


The Company may also from time to time designate one
or more other offices or agencies where the Notes may be presented or
surrendered for any or all such purposes and may from time to time rescind such
designations; provided, however, that no such
designation or rescission will in any manner relieve the Company of its
obligation to maintain an office or agency in the Borough of Manhattan, the
City of New York for such purposes.  The
Company will give prompt written notice to the Trustee of any such designation
or rescission and of any change in the location of any such other office or
agency.


 


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


 


Section 4.03                                Reports.


 


(a)                                  Whether or not required by the
rules and regulations of the SEC, so long as any Notes are outstanding, the
Company will furnish to the Holders of Notes or cause the Trustee to furnish to
the Holders of Notes, within the time periods specified in the SEC’s rules and
regulations:


 


(1)                                  all quarterly and annual reports
that would be required to be filed with the SEC on Forms 10-Q and 10-K if the
Company were required to file reports, including a “Management’s Discussion and Analysis of Financial Condition
and Results of Operations” and,
with respect to the annual information only, a report thereon by the Company’s
independent registered public accounting firm; and


 


46





















 


(2)                                  all current reports that would be
required to be filed with the SEC on Form 8-K if the Company were required to
file such reports;


 


provided, however, that the availability of the
foregoing materials on the SEC’s EDGAR service or on the Company’s website
shall be deemed to satisfy the Company’s delivery obligations under this
Section 4.03(a).


 


All such reports will be prepared in all material
respects in accordance with all of the rules and regulations applicable to such
reports.  Each annual report on Form 10-K
will include a report on the Company’s consolidated financial statements by the
Company’s independent registered public accounting firm. In addition, the Company
will file a copy of each of the reports referred to in clauses (1) and (2)
above with the SEC for public availability within the time periods specified in
the rules and regulations applicable to such reports (unless the SEC will not
accept such a filing) and will make such information available to securities
analysts and prospective investors upon request.  The Company will at all times comply with TIA
§ 314(a).


 


If, at any time, the Company is no longer subject to
the periodic reporting requirements of the Exchange Act for any reason, the
Company will nevertheless continue filing the reports specified in the
preceding paragraph with the SEC within the time periods specified above unless
the SEC will not accept such a filing. 
The Company will not take any action for the purpose of causing the SEC
not to accept any such filings.  If,
notwithstanding the foregoing, the SEC will not accept the Company’s filings
for any reason, the Company will post the reports referred to in the preceding
paragraph on its website within the time periods that would apply if the
Company were required to file those reports with the SEC.


 


(b)                                 If the Company has designated any
of its Subsidiaries as Unrestricted Subsidiaries, then the quarterly and annual
financial information required by paragraph (a) of this Section 4.03
will include a reasonably detailed presentation, either on the face of the
financial statements or in the footnotes thereto, and in Management’s
Discussion and Analysis of Financial Condition and Results of Operations, of
the financial condition and results of operations of the Company and its
Restricted Subsidiaries separate from the financial condition and results of
operations of the Unrestricted Subsidiaries of the Company.


 


For so long as any Notes remain outstanding, if at any
time they are not required to file with the SEC the reports required by
paragraphs (a) and (b) of this Section 4.03, the Company and the
Guarantors will furnish to Holders and to securities analysts and prospective
investors, upon their request, the information required to be delivered
pursuant to Rule 144A(d)(4) under the Securities Act.


 


Delivery of such reports, information and documents to
the Trustee is for informational purposes only and the Trustee’s receipt of
such shall not constitute


 


47





















 


constructive notice of
any information contained therein or determinable from information contained
therein, including the Company’s compliance with any of its covenants hereunder
(as to which the Trustee is entitled to rely exclusively on Officers’
Certificates).


 


Section 4.04                                Compliance Certificate.


 


(a)                                  The Company and each Guarantor (to
the extent that such Guarantor is so required under the TIA) shall deliver to
the Trustee, within 90 days after the end of each fiscal year, an Officers’
Certificate stating that a review of the activities of the Company and its
Subsidiaries during the preceding fiscal year has been made under the
supervision of the signing Officers with a view to determining whether the
Company has kept, observed, performed and fulfilled its obligations under this
Indenture, and further stating, as to each such Officer signing such
certificate, that to the best of his or her knowledge the Company has kept,
observed, performed and fulfilled each and every covenant contained in this
Indenture and is not in default in the performance or observance of any of the
terms, provisions and conditions of this Indenture (or, if a Default or Event
of Default has occurred, describing all such Defaults or Events of Default of
which he or she may have knowledge and what action the Company is taking or
proposes to take with respect thereto) and that to the best of 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 Company is taking or proposes to take with respect thereto.


 


(b)                                 So long as not contrary to the then
current recommendations of the American Institute of Certified Public
Accountants, the year-end financial statements delivered pursuant to
Section 4.03 above shall be accompanied by a written statement of the
Company’s independent public accountants (who shall be a firm of established
national reputation) that in making the examination necessary for certification
of such financial statements, nothing has come to their attention that would
lead them to believe that the Company has violated any provisions of Article 4
or Article 5 hereof or, if any such violation has occurred, specifying the
nature and period of existence thereof, it being understood that such
accountants shall not be liable directly or indirectly to any Person for any
failure to obtain knowledge of any such violation.


 


(c)                                  So long as any of the Notes are
outstanding, the Company will deliver to the Trustee, forthwith (and in any
event within 10 days) upon 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 Company is taking or proposes to take with respect
thereto.


 


48





















 


Section 4.05                                Taxes.


 


The Company will pay, and will cause each of its
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 is not
adverse in any material respect to the Holders of the Notes.


 


Section 4.06                                Stay, Extension and Usury Laws.


 


The Company and each of the Guarantors covenants (to
the extent that it may lawfully do so) that it will not at any time insist
upon, 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 Company and each of the Guarantors (to the extent that it
may lawfully do so) hereby expressly waives all benefit or advantage of any
such law, and covenants that it will not, by resort to any such law, hinder,
delay or impede the execution of any power herein granted to the Trustee, but
will suffer and permit the execution of every such power as though no such law
has been enacted.


 


Section 4.07                                Restricted Payments.


 


(a)                                  The Company will not, and will not
permit any of its Restricted Subsidiaries to, directly or indirectly:


 


(1)                                  declare or pay any dividend or make
any other payment or distribution on account of the Company’s or any of its
Restricted Subsidiaries’ Equity Interests (including, without limitation, any
payment in connection with any merger or consolidation involving the Company or
any of its Restricted Subsidiaries) or to the direct or indirect holders of the
Company’s or any of its Restricted Subsidiaries’ Equity Interests in their
capacity as such (other than dividends or distributions payable in Equity
Interests (other than Disqualified Stock) of the Company and other than dividends
or distributions payable to the Company or a Restricted Subsidiary of the
Company);


 


(2)                                  purchase, redeem or otherwise
acquire or retire for value (including without limitation, in connection with
any merger or consolidation involving the Company) any Equity Interests (other
than any such Equity Interest owned by a wholly owned Restricted Subsidiary of
the Company) of the Company or any direct or indirect parent of the Company;


 


(3)                                  make any Restricted Investment (all
such payments and other actions set forth in these clauses (1) through (3)
being collectively referred to as “Restricted Payments”),


 


49





















 


unless, at the time of and after giving effect to such
Restricted Payment, no Default or Event of Default has occurred and is
continuing or would occur as a consequence of such Restricted Payment and:


 


(1)                                  if the Fixed Charge Coverage Ratio
for the Company’s four most recent fiscal quarters for which internal financial
statements are available is not less than 1.6 to 1.0, such Restricted Payment,
together with the aggregate amount of all other Restricted Payments made by the
Company and its Restricted Subsidiaries since the date hereof (except for
Restricted Payments made pursuant to Section 4.07(b)(1) (so long as such
Restricted Payment was previously included for purposes of this calculation (to
the extent required to be so included) at the time of its declaration),
4.07(b)(2), 4.07(b)(5), 4.07(b)(9), 4.07(b)(11), 4.07(b)(12) or 4.07(b)(13)
below) is less than the sum, without duplication of:


 


(a)                                  Excess Cash of the Company for the
period (taken as one accounting period) from and including the first fiscal
quarter beginning after the date hereof to the end of the Company’s most
recently ended fiscal quarter for which internal financial statements are
available at the time of such Restricted Payment; plus


 


(b)                                 100% of the aggregate net cash
proceeds received by the Company since the date hereof as a contribution to its
common equity capital or from the issue or sale of Equity Interests of the
Company (other than Disqualified Stock) or from the issue or sale of
convertible or exchangeable Disqualified Stock or convertible or exchangeable
debt securities of the Company that have been converted into or exchanged for such
Equity Interests (other than Equity Interests (or Disqualified Stock or debt
securities) sold to a Subsidiary of the Company); plus


 


(c)                                  100% of the Fair Market Value as of
the date of issuance of any Equity Interests (other than Disqualified Stock) issued
since the date of this Indenture by the Company as consideration for the
purchase by the Company or any of its Restricted Subsidiaries of all or
substantially all of the assets of, or a majority of the Voting Stock of,
another Permitted Business (including by means of a merger, consolidation or
other business combination permitted under this Indenture); plus


 


(d)                                 to the extent that any Restricted
Investment that was made after the date of this Indenture is sold for cash or
other property or otherwise liquidated or repaid for cash, the lesser of
(i) the cash return of capital with respect to such Restricted Investment
or the Fair Market Value of such other property (less the cost of disposition,
if any) and (ii) the initial amount of such Restricted Investment; plus


 


50





















 


(e)                                  to the extent that any Unrestricted
Subsidiary of the Company designated as such after the date of this Indenture
is redesignated as a Restricted Subsidiary after the date of this Indenture or
merges or consolidates with or into, or is liquidated into, the Company or any
of its Restricted Subsidiaries, the lesser of (i) the Fair Market Value of
the Company’s Investment in such Subsidiary as of the date of such
redesignation or (ii) such Fair Market Value as of the date on which such
Subsidiary was originally designated as an Unrestricted Subsidiary after the
date of this Indenture (the amount determined at any time pursuant to items
(b), (c), (d) and (e) being referred to as the “Incremental Funds”);
minus


 


(f)                                    the aggregate amount of Restricted
Payments made in reliance on Incremental Funds pursuant to this clause (1)
or clause (2) below; or


 


(2)                                  if the Fixed Charge Coverage Ratio
for the Company’s four most recent fiscal quarters for which internal financial
statements are available is less than 1.6 to 1.0, such Restricted Payment,
together with the aggregate amount of all other Restricted Payments made by the
Company and its Restricted Subsidiaries since the beginning of the fiscal quarter
in which such Restricted Payment is made (such Restricted Payments for purposes
of this clause (2) meaning only distributions on the Company’s common
stock), is less than the sum, without duplication, of:


 


(a)                                  $10.0 million less the
aggregate amount of all Restricted Payments made by the Company pursuant to
this clause (2)(a) during the period ending on the last day of the fiscal
quarter of the Company immediately preceding the fiscal quarter in which such
Restricted Payment is made and beginning on the date of this Indenture, plus


 


(b)                                 Incremental Funds to the extent not
previously expended pursuant to this clause (2) or clause (1) above;


 


provided that only Restricted
Payments that are distributions on the Company’s common stock may be made
pursuant to this clause (2).


 


(b)                                 The
preceding provisions will not prohibit:


 


(1)                                  the payment of any dividend or the
consummation of any irrevocable redemption within 60 days after the date of
declaration of the dividend or giving of the redemption notice, as the case may
be, if at the date of declaration or notice, the dividend or redemption payment
would have complied with the provisions of this Indenture;


 


51





















 


(2)                                  so long as no Default has occurred
and is continuing or would be caused thereby, the making of any Restricted
Payment in exchange for, or out of the net cash proceeds of the sale within 10
Business Days (other than to a Subsidiary of the Company) of, Equity Interests
of the Company (other than Disqualified Stock) or from the contribution of
common equity capital to the Company within 10 Business Days; provided that the amount of any such net cash proceeds that
are utilized for any such Restricted Payment will be excluded from
clause (1)(b) of Section 4.07(a);


 


(3)                                  the payment of any dividend (or, in
the case of any partnership or limited liability company, any similar
distribution) by a Restricted Subsidiary of the Company to the holders of its
Equity Interests on a pro rata basis;


 


(4)                                  so long as no Default has occurred
and is continuing or would be caused thereby, the repurchase, redemption or
other acquisition or retirement for value of any Equity Interests of the
Company or any Restricted Subsidiary of the Company held by any current or
former officer, director or employee of the Company or any of its Restricted
Subsidiaries pursuant to any equity subscription agreement, stock option plan
or any other management or employee benefit plan or agreement, shareholders’
agreement or similar agreement; provided that
the aggregate price paid for all such repurchased, redeemed, acquired or
retired Equity Interests may not exceed $2.0 million in any calendar year;
provided, further, that such amount in
any calendar year may be increased by an amount not to exceed the cash proceeds
received by the Company or any of its Restricted Subsidiaries (to the extent
contributed to the Company) from sales of Equity Interests (other than
Disqualified Stock) of the Company to officers, directors or employees of the
Company or any of its Restricted Subsidiaries that occur after the date of this
Indenture (provided that the amount of such cash
proceeds used for any such repurchase, redemption, acquisition or retirement
will not increase the amount available for Restricted Payments under
clause (1)(b) of Section 4.07(a) hereof and provided that
the Company may elect to apply all or any portion of the aggregate increase
contemplated by this proviso in any calendar year); provided,
further, that cancellation of Indebtedness owing to the Company from
members of management of the Company or any Restricted Subsidiary in connection
with a repurchase of Equity Interests of the Company will not be deemed to
constitute a Restricted Payment;


 


(5)                                  so long as no Default has occurred
and is continuing or would be caused thereby, the repurchase of Equity
Interests deemed to occur upon the exercise of stock options to the extent such
Equity Interests represent a portion of the exercise price of those stock
options;


 


(6)                                  so long as no Default has occurred and
is continuing or would be caused thereby, the declaration and payment of
regularly scheduled or accrued


 


52





















 


dividends to holders of any class or series of Disqualified Stock
of the Company or any Restricted Subsidiary of the Company issued on or after
the date of this Indenture in accordance with Section 4.09 hereof;


 


(7)                                  repurchases of Capital Stock deemed
to occur upon the exercise of stock options if the Capital Stock represents a
portion of the exercise price thereof;


 


(8)                                  payments of dividends to the
Company solely to enable it to make payments to holders of its Capital Stock in
lieu of the issuance of fractional shares of its Capital Stock;


 


(9)                                  so long as no Default has occurred
and is continuing or would be caused thereby, the acquisition of any shares of
Disqualified Stock of the Company in exchange for other shares of Disqualified
Stock of the Company or with the net cash proceeds from an issuance of
Disqualified Stock by the Company within 10 Business Days of such issuance, in
each case that is permitted to be issued under Section 4.09 hereof;


 


(10)                            so long as no Default has occurred
and is continuing or would be caused thereby, the First Four Dividend Payments;


 


(11)                            so
long as no Default has occurred and is continuing or would be caused thereby,
the repurchase of shares of the Company’s Class B Common Stock on the date
hereof or on the closing date(s) of the exercise of the over-allotment option
with respect to the EISs;


 


(12)                            so long as no Default has occurred
and is continuing or would be caused thereby, other Restricted Payments in an
aggregate amount not to exceed $10.0 million since the date of this
Indenture;


 


(13)                            so long as no Default has occurred
and is continuing or would be caused thereby, the repurchase of shares of the
Company’s Class B Common Stock issued on or before the date hereof with the
proceeds of an issuance of EISs or, if no EISs are outstanding on the date of
repurchase, the issuance of Additional Notes and the Company’s Class A Common
Stock, in either case completed substantially contemporaneously with the
repurchase, and, in respect of any Additional Notes, incurred pursuant to
Section 4.09(b)(19), provided
that such transactions may only be consummated in accordance with the
Securities Holders Agreement, provided,
further, that the amount of any such net cash proceeds that are
utilized for any such Restricted Payment will be excluded from
Section 4.07(a)(1)(b) hereof; and


 


53





















 


(14)                            the repurchase, redemption,
defeasance or other acquisition or retirement for value of the Company’s 9 5/8%
senior subordinated notes due 2007.


 


(c)                                  If
the Company’s Net Cash Balance is less than $10.0 million at the end of
any fiscal year beginning with the fiscal year ended January 1, 2005, then
until the earlier of (a) the first fiscal year end thereafter at which the
Company’s Net Cash Balance equals or exceeds $10.0 million and
(b) the first fiscal quarter end thereafter at which the Company’s Net
Cash Balance equals or exceeds $12.5 million, the amount of Excess Cash
that the Company Foods may use to make dividends or other distributions on its
common stock pursuant to the second clause (1) of the first paragraph of
this Section 4.07(a) hereof shall be reduced to 98.0% thereof.


 


(d)                                 For
purposes of this covenant, the amount of all Restricted Payments (other than
cash) will be the Fair Market Value on the date of the Restricted Payment of
the asset(s) or securities proposed to be transferred or issued by the Company
or such Restricted Subsidiary, as the case may be, pursuant to the Restricted
Payment.  The Fair Market Value of any
assets or securities that are required to be valued by Section 4.07 will
be determined by the Board of Directors of the Company whose resolution with
respect thereto will be delivered to the Trustee to the extent that such Fair
Market Value exceeds $10.0 million. 
For purposes of determining compliance with Section 4.07, in the
event that a Restricted Payment meets the criteria of more than one of the
exceptions described in Section 4.07(b) or is entitled to be made pursuant
to Section 4.07(a) hereof, the Company will be permitted, in its sole
discretion, to classify the Restricted Payment in any manner that complies with
Section 4.07.


 


Section 4.08                                Dividend and Other Payment
Restrictions Affecting Subsidiaries.


 


(a)                                  The Company will not, and will not
permit any of its Restricted Subsidiaries to, directly or indirectly, create or
permit to exist or become effective any consensual encumbrance or restriction
on the ability of any Restricted Subsidiary to:


 


(1)                                  pay dividends or make any other
distributions on its Capital Stock to the Company or any of its Restricted
Subsidiaries or with respect to any other interest or participation in, or
measured by, its profits, or pay any indebtedness owed to the Company or any of
its Restricted Subsidiaries;


 


(2)                                  make loans or advances to the
Company or any of its Restricted Subsidiaries; or


 


(3)                                  transfer any of its properties or
assets to the Company or any of its Restricted Subsidiaries.


 


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(b)                                 However, the preceding restrictions
in Section 4.08(a) hereof will not apply to encumbrances or restrictions
existing under or by reason of:


 


(1)                                  agreements governing Existing
Indebtedness and any other agreement, including Credit Facilities and the
Senior Note Indenture as in effect on the date of this Indenture and any
amendments, restatements, modifications, renewals, increases, supplements,
refundings, replacements or refinancings of those agreements; provided that the amendments, restatements, modifications,
renewals, increases, supplements, refundings, replacements or refinancings are
not materially more restrictive, taken as a whole, with respect to such
dividend and other payment restrictions than those contained in those
agreements on the date of this Indenture;


 


(2)                                  this Indenture, the Notes and the
Note Guarantees; and the Senior Notes and the Senior Notes Guarantees;


 


(3)                                  applicable law, rule, regulation or
order;


 


(4)                                  any instrument governing
Indebtedness or Capital Stock of a Person acquired by the Company or any of its
Restricted Subsidiaries as in effect at the time of such acquisition (except to
the extent such Indebtedness or Capital Stock was incurred in connection with
or in contemplation of such acquisition), which encumbrance or restriction is
not applicable to any Person, or the properties or assets of any Person, other
than the Person, or the property or assets of the Person, so acquired; provided that, in the case of Indebtedness, such
Indebtedness was permitted by the terms of this Indenture to be incurred;


 


(5)                                  customary non-assignment provisions
in contracts, licenses and other commercial agreements entered into in the
ordinary course of business;


 


(6)                                  purchase money obligations for
property acquired in the ordinary course of business and Capital Lease
Obligations that impose restrictions on the property purchased or leased of the
nature described in clause (3) of Section 4.08(a) hereof;


 


(7)                                  any agreement for the sale or other
disposition of all or substantially all of the Capital Stock or assets of a
Restricted Subsidiary that restricts distributions by that Restricted
Subsidiary pending the sale or other disposition;


 


(8)                                  Permitted Refinancing Indebtedness;
provided that the encumbrances or
restrictions contained in the agreements governing such Permitted Refinancing
Indebtedness are, in the good faith judgment of the senior management or Board
of Directors of the Company, not materially more


 


55





















 


restrictive, taken as a whole, than those contained in the
agreements governing the Indebtedness being refinanced;


 


(9)                                  any restriction on the transfer of
assets under any Lien permitted under this Indenture imposed by the holder of
the Lien;


 


(10)                            provisions limiting the disposition
or distribution of assets or property in joint venture agreements, asset sale
agreements, sale-leaseback agreements, stock sale agreements and other similar
agreements entered into in the ordinary course of business or with the approval
of the Company’s Board of Directors, which limitation is applicable only to the
assets that are the subject of such agreements; and


 


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


 


Section 4.09                                Incurrence of Indebtedness and
Issuance of Preferred Stock.


 


(a)                                  The Company will not, and will not
permit any of its Restricted Subsidiaries to, directly or indirectly, create,
incur, issue, assume, guarantee or otherwise become directly or indirectly
liable, contingently or otherwise, with respect to (collectively, “incur”) any Indebtedness (including
Acquired Debt), and the Company will not issue any Disqualified Stock and will
not permit any of its Restricted Subsidiaries to issue any shares of preferred
stock; provided, however,
that the Company may incur Indebtedness (including Acquired Debt) or issue
Disqualified Stock, and the Guarantors may incur Indebtedness (including
Acquired Debt) or issue preferred stock, if the Fixed Charge Coverage Ratio for
the Company’s most recently ended four full fiscal quarters for which internal
financial statements are available immediately preceding the date on which such
additional Indebtedness is incurred or such Disqualified Stock or such
preferred stock is issued, as the case may be, would have been at least 2.0 to
1, determined on a pro forma basis (including a pro forma application of the
net proceeds therefrom), as if the additional Indebtedness had been incurred or
the Disqualified Stock or the preferred stock had been issued, as the case may
be, at the beginning of such four-quarter period.


 


(b)                                 The provisions of
Section 4.09(a) hereof will not prohibit the incurrence of any of the
following items of Indebtedness (collectively, “Permitted Debt”):


 


(1)                                  the incurrence by the Company and
any of its Restricted Subsidiaries of Indebtedness and letters of credit under
Credit Facilities in an aggregate principal amount at any one time outstanding
under this clause (1) (with letters of credit being deemed to have a
principal amount equal to the maximum potential liability of the Company and
its Restricted Subsidiaries thereunder) not


 


56





















 


to exceed the greater of (x) $50.0 million and
(y) the amount of the Borrowing Base as of the date of such incurrence;


 


(2)                                  the incurrence by the Company and
its Restricted Subsidiaries of the Existing Indebtedness;


 


(3)                                  the incurrence by the Company and
the Guarantors of Indebtedness represented by the Notes and the related Note
Guarantees to be issued on the date of this Indenture;


 


(4)                                  the incurrence by the Company and
the Guarantors of Indebtedness represented by the Senior Notes and the Senior
Note Guarantees;


 


(5)                                  the incurrence by the Company or
any of its Restricted Subsidiaries of Indebtedness represented by Capital Lease
Obligations, mortgage financings or purchase money obligations, in each case
incurred for the purpose of financing all or any part of the purchase price or
cost of design, construction, installation or improvement of property, plant or
equipment used in the business of the Company or any of its Restricted
Subsidiaries (whether through the direct purchase of assets or the Equity
Interests of any Person owning such assets), in an aggregate principal amount,
including all Permitted Refinancing Indebtedness incurred to renew, refund,
refinance, replace, defease or discharge any Indebtedness incurred pursuant to this
clause (5), not to exceed $20.0 million at any time outstanding;


 


(6)                                  the incurrence by the Company or
any of its Restricted Subsidiaries of Permitted Refinancing Indebtedness in
exchange for, or the net proceeds of which are used to renew, refund, refinance,
replace, defease or discharge any Indebtedness (other than intercompany
Indebtedness) that was permitted by this Indenture to be incurred by
Section 4.09(a) or clauses (2), (3), (4), (5), (6), (17) or (18) of
this Section 4.09(b);


 


(7)                                  the incurrence by the Company or
any of its Restricted Subsidiaries of intercompany Indebtedness between or
among the Company and any of its Restricted Subsidiaries; provided,
however, that:


 


(a)                                  if the Company or any Guarantor is
the obligor on such Indebtedness and the payee is not the Company or a
Guarantor, such Indebtedness must be expressly subordinated to the prior
payment in full in cash of all Obligations then due with respect to the Notes,
in the case of the Company, or the Note Guarantee, in the case of a Guarantor;
and


 


(b)                                 (i) any subsequent issuance or
transfer of Equity Interests that results in any such Indebtedness being held
by a Person other than the


 


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Company or a Restricted Subsidiary of the Company and
(ii) any sale or other transfer of any such Indebtedness to a Person that
is not either the Company or a Restricted Subsidiary of the Company, will be
deemed, in each case, to constitute an incurrence of such Indebtedness by the
Company or such Restricted Subsidiary, as the case may be, that was not
permitted by this clause (7);


 


(8)                                  the issuance by any of the
Company’s Restricted Subsidiaries to the Company or to any of its Restricted
Subsidiaries of shares of preferred stock; provided, however,
that:


 


(a)                                  any subsequent issuance or transfer
of Equity Interests that results in any such preferred stock being held by a
Person other than the Company or a Restricted Subsidiary of the Company; and


 


(b)                                 any sale or other transfer of any
such preferred stock to a Person that is not either the Company or a Restricted
Subsidiary of the Company,


 


will be deemed, in each case, to constitute an
issuance of such preferred stock by such Restricted Subsidiary that was not
permitted by this clause (8);


 


(9)                                  the incurrence by the Company or
any of its Restricted Subsidiaries of Hedging Obligations in the ordinary
course of business;


 


(10)                            the guarantee by the Company or any
of its Restricted Subsidiaries of Indebtedness of the Company or a Restricted
Subsidiary of the Company that was permitted to be incurred by another
provision of this Section 4.09;


 


(11)                            the incurrence by the Company or
any of its Restricted Subsidiaries of Indebtedness in respect of bankers’
acceptances, performance, bid and surety bonds and completion guarantees
provided in the ordinary course of business;


 


(12)                            the incurrence by the Company or
any of its Restricted Subsidiaries of 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;


 


(13)                            the incurrence of Indebtedness
arising from agreements of the Company or any of its Restricted Subsidiaries
providing for indemnification, adjustment of purchase price or similar
obligations, in each case, incurred in connection with the disposition of any
business, assets or a Restricted Subsidiary, other than the Guarantees of
Indebtedness incurred by any Person acquiring all or


 


58





















 


any portion of such business, assets or a Restricted Subsidiary
for the purpose of financing such acquisition; provided,
however, that:


 


(a)                                  such Indebtedness is not reflected
on the balance sheet of the Company or any Restricted Subsidiary (contingent
obligations referred to in a footnote to financial statements and not otherwise
reflected on the balance sheet will not be deemed to be reflected on such
balance sheet for purposes of this clause (a)); and


 


(b)                                 the maximum assumable liability in
respect of all such Indebtedness shall at no time exceed the gross proceeds
including non-cash proceeds (the Fair Market Value of such non-cash proceeds
being measured at the time received and without giving effect to any subsequent
changes in value) actually received by the Company and Restricted Subsidiaries
in connection with such disposition;


 


(14)                            the incurrence of Indebtedness owed
to any Person in connection with worker’s compensation, self-insurance, health,
disability or other employee benefits or property, casualty or liability
insurance provided by such Person to the Company or any of its Restricted
Subsidiaries, pursuant to reimbursement or indemnification obligations to such
Person, in each case incurred in the ordinary course of business and consistent
with past practices;


 


(15)                            pledges, deposits or payments made
or given in the ordinary course of business in connection with or to secure
statutory, regulatory or similar obligations, including obligations under
health, safety or environmental obligations, or arising from guarantees to
suppliers, lessors, licenses, contractors, franchisees or customers of
obligations, other than Indebtedness, made in the ordinary course of business;


 


(16)                            the incurrence of Indebtedness by
the Company or any of its Restricted Subsidiaries issued to directors, officers
or employees of the Company or any of its Restricted Subsidiaries in connection
with the redemption or purchase of Capital Stock that, by its terms, is
subordinated to the Notes, is not secured by any assets of the Company or any
of its Restricted Subsidiaries and does not require cash payments prior to the
Stated Maturity of the Notes, in an aggregate principal amount at any time
outstanding not to exceed $2.0 million;


 


(17)                            the incurrence by the Company or
any of its Restricted Subsidiaries of additional Indebtedness in an aggregate
principal amount (or accreted value, as applicable) at any time outstanding,
including all Permitted Refinancing Indebtedness incurred to renew, refund,
refinance, replace, defease or discharge any Indebtedness incurred pursuant to
this clause (17), not to exceed $20.0 million;


 


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(18)                            the
incurrence of Indebtedness by the Company or any Restricted Subsidiary to
finance the acquisition (including, without limitation, by way of a merger) of
Capital Stock of any Person engaged in, or assets used or useful in, a
Permitted Business; provided that the Fixed Charge Coverage Ratio for the
Company’s most
recently ended four full fiscal quarters for which internal financial
statements are available immediately preceding the date on which such
Indebtedness is incurred would have been at least 1.75 to 1.0 determined on a
pro-forma basis (including a pro forma application of the net proceeds
therefrom), as if the Indebtedness had been incurred at the beginning of such
four-quarter period; and


 


(19)                            the incurrence by the
Company of Indebtedness in the form of Additional Notes in connection with the
issuance of EISs or, if there are no EISs outstanding on the date of such
issuance, the issuance of the Company’s Class A Common Stock (and in each case,
the incurrence of the related Note Guarantees in respect of such Additional
Notes by the Guarantors), provided
that (a) no Default or Event of Default has occurred and is continuing at the
time of such issuance or would be caused thereby, (b) the ratio of the
aggregate principal amount of such Additional Notes over the number of
additional shares of the Company’s Class A Common Stock issued contemporaneously
therewith shall not exceed (i) the equivalent ratio with respect to the EISs
outstanding immediately prior to such issuance, or (ii) if there are no EISs
outstanding immediately prior to such issuance, the equivalent ratio with
respect to the EISs outstanding on the date of this Indenture, and (c) the
Company uses the proceeds of such issuance solely to repurchase shares of Class
B Common Stock issued on or before the date of this Indenture from holders
thereof in accordance with the Securities Holders Agreement.


 


For purposes of determining compliance with this
Section 4.09, in the event that an item of proposed Indebtedness meets the
criteria of more than one of the categories of Permitted Debt described in
clauses (1) through (19) above, or is entitled to be incurred pursuant to
Section 4.09(a) hereof, the Company will be permitted to classify such
item of Indebtedness on the date of its incurrence, or later reclassify all or
a portion of such item of Indebtedness, in any manner that complies with this
Section 4.09 and such item of Indebtedness will be treated as having been
incurred pursuant to only such clause or clauses to which it has been
reclassified or pursuant to Section 4.09(a), as the case may be.  Indebtedness under Credit Facilities outstanding
on the date on which Notes are first issued and authenticated under this
Indenture will initially be deemed to have been incurred on such date in
reliance on the exception provided by clause (1) of the definition of
Permitted Debt.  The accrual of interest,
the accretion or amortization of original issue discount, the payment of
interest on any Indebtedness in the form of additional Indebtedness with the
same terms, the reclassification of preferred stock as Indebtedness due to a
change in account principles, and the payment of dividends on Disqualified


 


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Stock in the form of
additional shares of the same class of Disqualified Stock will not be deemed to
be an incurrence of Indebtedness or an issuance of Disqualified Stock for
purposes of this Section 4.09. 
Notwithstanding any other provision of this Section 4.09, the
maximum amount of Indebtedness that the Company or any Restricted Subsidiary
may incur pursuant to this Section 4.09 shall not be deemed to be exceeded
solely as a result of fluctuations in exchange rates or currency values.


 


The amount of any Indebtedness outstanding as of any
date will be:


 


(1)                                  the
accreted value of the Indebtedness, in the case of any Indebtedness issued with
original issue discount;


 


(2)                                  the
principal amount of the Indebtedness, in the case of any other Indebtedness;
and


 


(3)                                  in
respect of Indebtedness of another Person secured by a Lien on the assets of
the specified Person, the lesser of:


 


(A)                              the
Fair Market Value of such assets at the date of determination; and


 


(B)                                the
amount of the Indebtedness of the other Person.


 


Section 4.10                                Asset Sales.


 


(a)                                  The
Company will not, and will not permit any of its Restricted Subsidiaries to,
consummate an Asset Sale unless:


 


(1)                                  the Company (or the Restricted
Subsidiary, as the case may be) receives consideration at the time of the Asset
Sale at least equal to the Fair Market Value of the assets or Equity Interests
issued or sold or otherwise disposed of; and


 


(2)                                  at least 75% of the consideration
received in the Asset Sale by the Company or such Restricted Subsidiary is in
the form of cash or Cash Equivalents. 
For purposes of this provision, each of the following shall be deemed to
be cash:


 


(A)                              any liabilities, as shown on the
Company’s most recent consolidated balance sheet, of the Company or any
Restricted Subsidiary (other than contingent liabilities and liabilities that
are by their terms subordinated to the Notes or any Note Guarantee) that are
assumed by the transferee of any such assets and the Company or such Restricted
Subsidiary is released from further liability;


 


61





















 


(B)                                any securities, notes or other
obligations received by the Company or any such Restricted Subsidiary from such
transferee that are converted by the Company or such Restricted Subsidiary into
cash within 180 days after such Asset Sale, to the extent of the cash received
in that conversion; and


 


(C)                                any stock or assets of the kind
referred to in clauses (2) or (4) of the next paragraph of this
Section 4.10.


 


(b)                                 Any
Asset Sale pursuant to a condemnation, appropriation or other similar taking,
including by deed in lieu of condemnation, or pursuant to the foreclosure or
other enforcement of a Permitted Lien or exercise by the related lienholder of
rights with respect to any of the foregoing, including by deed or assignment in
lieu of foreclosure, will not be required to satisfy the conditions set forth
in the preceding paragraph.  Within 360
days after the receipt of any Net Proceeds from an Asset Sale, the Company (or
the applicable Restricted Subsidiary, as the case may be) may apply such Net
Proceeds at its option:


 


(1)                                  to repay, prepay or purchase
Senior Indebtedness or pari passu Indebtedness
(provided that if the Company shall so repay pari
passu Indebtedness, it will equally and ratably repay the Notes by
making an offer (in accordance with the procedures set forth in
Section 3.09) to all Holders to purchase at a purchase price equal to 100%
of the principal amount thereof, plus accrued and unpaid interest, if any, the
pro rata principal amount of Notes); and, if the Indebtedness repaid is
revolving credit Indebtedness, to correspondingly reduce commitments with
respect thereto;


 


(2)                                  to
acquire all or substantially all of the assets of another Permitted Business,
or to acquire any Capital Stock of another Permitted Business, if, after giving
effect to any such acquisition of Capital Stock, the Permitted Business is or
becomes a Restricted Subsidiary of the Company;


 


(3)                                  to
make a capital expenditure;


 


(4)                                  to
acquire other assets that are not classified as current assets under GAAP and
that are used or useful in a Permitted Business; or


 


(5)                                  any
combination of the foregoing clauses (1) through (4).


 


In the case of clauses (2) and (4) of this
paragraph (b), the Company will be deemed to have complied with its obligations
in the preceding paragraph if it enters into a binding commitment to acquire
such assets or Capital Stock prior to 360 days after the receipt of the
applicable Net Proceeds; provided that
such binding commitment will be subject only to customary conditions and such
acquisition is completed within 180 days


 


62





















 


following the expiration
of the aforementioned 360 day period.  If
the acquisition contemplated by such binding commitment is not consummated on
or before such 180th day, and the Company has not applied the applicable Net
Proceeds for another purpose permitted by the preceding paragraph on or before
such 180th day, such commitment shall be deemed not have been a permitted
application of Net Proceeds.  Pending the
final application of any Net Proceeds, the Company may temporarily reduce
revolving credit borrowings or otherwise invest the Net Proceeds in any manner
that is not prohibited by this Indenture.


 


Any Net Proceeds from Asset Sales that are not applied
or invested as provided in the second paragraph of this Section 4.10 will
constitute “Excess Proceeds.” 
When the aggregate amount of Excess Proceeds exceeds $10.0 million,
within 30 days thereof, the Company will make an Asset Sale Offer to all
Holders of Notes and all Holders of other Indebtedness that is pari passu Indebtedness containing
provisions similar to those set forth herein with respect to offers to purchase
or redeem with the proceeds of sales of assets to purchase the maximum
principal amount of Notes and such other pari
passu Indebtedness that may be purchased out of the Excess
Proceeds.  The offer price in any Asset
Sale Offer will be equal to 100% of the principal amount plus accrued and
unpaid interest to the date of purchase and will be payable in cash.  If any Excess Proceeds remain after
consummation of an Asset Sale Offer, the Company may use those Excess Proceeds
for any purpose not otherwise prohibited by this Indenture. If the aggregate
principal amount of Notes and such other pari
passu Indebtedness tendered into such Asset Sale Offer exceeds the
amount of Excess Proceeds, the Trustee will select the Notes to be purchased on
a pro rata basis.  Upon completion of each Asset Sale Offer, the
amount of Excess Proceeds will be reset at zero.  In order for a Holder of Notes whose Notes
are represented by EISs to exercise its repurchase right in connection with an
Asset Sale Offer pursuant to this Section 4.10, such Holder must
voluntarily separate its EISs representing such Notes.


 


Any Asset Sale Offer will 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 4.10, the Company’s
compliance with those laws and regulations will not in and of itself cause a
breach of its obligations under this Section 4.10.


 


Section 4.11                                Transactions with Affiliates.


 


(a)                                  The Company will not, and will not
permit any of its Restricted Subsidiaries to, on or after the date of this
Indenture, make any payment to, or sell, lease, transfer or otherwise dispose
of any of its properties or assets to, or purchase any property or assets from,
or enter into or make or amend any transaction, contract, agreement,
understanding, loan, advance or guarantee with, or for the benefit of, any
Affiliate of the Company (each, an “Affiliate Transaction”),
unless:


 


63





















 


(1)                                  the Affiliate Transaction is on
terms that are no less favorable to the Company or the relevant Restricted
Subsidiary than those that would have been obtained in a comparable transaction
by the Company or such Restricted Subsidiary with a Person that is not an
Affiliate of the Company; and


 


(2)                                  The Company delivers to the Trustee:


 


(A)                              with respect to any Affiliate
Transaction or series of related Affiliate Transactions involving aggregate
consideration in excess of $5.0 million, a resolution of the Board of
Directors of the Company set forth in an Officer’s Certificate certifying that
such Affiliate Transaction complies with this Section 4.11(a) and that
such Affiliate Transaction has been approved by a majority of the disinterested
members of the Board of Directors of the Company or, if none, a disinterested
representative appointed by the Board of Directors for such purpose; and


 


(B)                                with respect to any Affiliate
Transaction or series of related Affiliate Transactions involving aggregate
consideration in excess of $20.0 million, an opinion as to the fairness to
the Company or such Subsidiary of such Affiliate Transaction from a financial
point of view or that such Affiliate Transaction is not less favorable to the
Company and its Restricted Subsidiaries than could reasonably be expected to be
obtained in a comparable transaction with a Person that is not an Affiliate of
the Company, as issued by an accounting, appraisal or investment banking firm
of national standing.


 


(b)                                 The following items will not be
deemed to be Affiliate Transactions and, therefore, will not be subject to the
provisions of Section 4.11(a) hereof:


 


(1)                                  any employment agreement, officer
or director indemnification agreement or any similar arrangement entered into
by the Company or any of its Restricted Subsidiaries in the ordinary course of
business and payments pursuant thereto;


 


(2)                                  transactions between or among the
Company and/or its Restricted Subsidiaries;


 


(3)                                  transactions with a Person (other
than an Unrestricted Subsidiary of the Company) that is an Affiliate of the
Company solely because the Company owns, directly or through a Restricted
Subsidiary, an Equity Interest in, or controls, such Person;


 


(4)                                  fees and compensation paid to
officers and employees of the Company or any Restricted Subsidiaries, to the
extent such fees and compensation


 


64





















 


are reasonable and customary, and payment of reasonable directors’
fees to Persons who are not otherwise Affiliates of the Company;


 


(5)                                  any issuance or sale of Equity
Interests (other than Disqualified Stock) of the Company to Affiliates,
employees, officers and directors of the Company or any of its Restricted
Subsidiaries;


 


(6)                                  Restricted Payments that are
permitted by Section 4.07 hereof;


 


(7)                                  fees payable to BRS or an Affiliate
of BRS under the Transaction Services Agreement;


 


(8)                                  maintenance in the ordinary course
of business of customary benefit programs or arrangements for employees,
officers or directors, including vacation plans, health and life insurance
plans, deferred compensation plans and retirement or savings plans and similar
plans;


 


(9)                                  loans or advances to employees in
the ordinary course of business not to exceed $1.0 million in the
aggregate at any one time outstanding;


 


(10)                            any agreement as in effect and
entered into as of the date of this Indenture, including the Securities Holders
Agreement, or any amendment thereto or any transaction contemplated thereby
(including pursuant to any amendment thereto) in any replacement agreement
thereto so long as any such amendment or replacement agreement is not more
disadvantageous to the Holders of the Notes in any material respect than the
original agreement as in effect on the date of this Indenture;


 


(11)                            any transaction or series of
transactions between the Company or any Restricted Subsidiary and any of their
Joint Ventures; provided that (a) such
transaction or series of transactions is in the ordinary course of business
between the Company or such Restricted Subsidiary and such Joint Venture and
(b) with respect to any such Affiliate Transaction involving aggregate
consideration in excess of $5.0 million, such Affiliate Transaction
complies with Section 4.11(a)(1) hereof and such Affiliate Transaction has
been approved by the Board of Directors of the Company;


 


(12)                            any service, purchase, lease,
supply or similar agreement entered into in the ordinary course of business
between the Company or any Restricted Subsidiary and any Affiliate that is a
customer, client, supplier or purchaser or seller of goods or services, so long
as the senior management or Board of Directors of the Company determines in
good faith that any such agreement is on terms no less favorable to the Company
or such Restricted Subsidiary than those


 


65





















 


that could be obtained in a comparable arms’-length transaction
with an entity that is not an Affiliate; and


 


(13)                            the payment of all fees and
expenses related to the Transactions.


 


Section 4.12                                Liens.


 


The Company will not, and will not permit any of its
Restricted Subsidiaries to, directly or indirectly, create, incur, assume or
suffer to exist any Lien of any kind (other than Permitted Liens) to secure
Indebtedness of any kind on any asset now owned or hereafter acquired, unless
all payments due under this Indenture and the Notes are secured on an equal and
ratable basis with the obligations so secured (or, if such obligations are
subordinated by their terms to the Notes or the Note Guarantees, prior to the
obligations so secured) until such time as such obligations are no longer
secured by a Lien.


 


Section 4.13                                Business Activities.


 


The Company will not, and will not permit any of its
Restricted Subsidiaries to, engage in any business other than Permitted
Businesses, except to such extent as would not be material to the Company and
its Restricted Subsidiaries taken as a whole, as reasonably determined in good
faith by the Board of Directors of the Company.


 


Section 4.14                                Corporate Existence.


 


Subject to Article 5 hereof, the Company shall do or
cause to be done all things necessary to preserve and keep in full force and
effect:


 


(1)                                  its corporate existence, and the
corporate, partnership or other existence of each of its Subsidiaries, in
accordance with the respective organizational documents (as the same may be
amended from time to time) of the Company or any such Subsidiary; and


 


(2)                                  the rights (charter and statutory),
licenses and franchises of the Company and its Subsidiaries; provided, however, that the Company shall not be required to
preserve any such right, license or franchise, or the corporate, partnership or
other existence of any of its Subsidiaries, if the Board of Directors shall
determine that the preservation thereof is no longer desirable in the conduct
of the business of the Company and its Subsidiaries, taken as a whole, and that
the loss thereof is not adverse in any material respect to the Holders of the
Notes.


 


Section 4.15                                Offer to Repurchase Upon Change
of Control.


 


(a)                                  If a Change of Control occurs, each
Holder of Notes will have the right to require the Company to repurchase all or
any part (equal to $7.15 or an integral multiple


 


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of $7.15) of that
Holder’s Notes pursuant to a Change of Control Offer on the terms set forth
herein.  In the Change of Control Offer
(subject to the conditions required by applicable law, if any), the Company
will offer a Change of Control Payment in cash equal to 101% of the aggregate
principal amount of Notes repurchased plus
accrued and unpaid interest on the Notes repurchased to the date of purchase,
subject to the rights of Holders of Notes on the relevant record date to
receive interest due on the relevant interest payment date (the “Change of Control Payment”).  No earlier than ten and no later than 20 days
following any Change of Control, the Company will mail a notice to each Holder
describing the transaction or transactions that constitute the Change of
Control and stating:


 


(1)                                  that the Change of Control Offer is
being made pursuant to this Section 4.15 and that all Notes tendered will
be accepted for payment;


 


(2)                                  the purchase price and the purchase
date, which shall be no earlier than 30 days and no later than 60 days from the
date such notice is mailed (the “Change of Control Payment
Date”);


 


(3)                                  that any Note not tendered will
continue to accrue interest;


 


(4)                                  that, unless the Company defaults
in the payment of the Change of Control Payment, all Notes accepted for payment
pursuant to the Change of Control Offer will cease to accrue interest after the
Change of Control Payment Date;


 


(5)                                  that Holders electing to have any
Notes purchased pursuant to a Change of Control Offer will be required to
surrender the Notes, with the form entitled “Option
of Holder to Elect Purchase”
attached to the Notes completed, or transfer by book-entry transfer, to the
Paying Agent at the address specified in the notice prior to the close of
business on the third Business Day preceding the Change of Control Payment
Date;


 


(6)                                  that Holders will be entitled to
withdraw their election if the Paying Agent receives, not later than the close
of business on the second Business Day preceding the Change of Control Payment
Date, a telegram, telex, facsimile transmission or letter setting forth the
name of the Holder, the principal amount of Notes delivered for purchase, and a
statement that such Holder is withdrawing his election to have the Notes
purchased; and


 


(7)                                  that Holders whose Notes are being
purchased only in part will be issued new Notes equal in principal amount to
the unpurchased portion of the Notes surrendered, which unpurchased portion
must be equal to $7.15 in principal amount or an integral multiple thereof.


 


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In order for a Holder of Notes whose Notes are
represented by EISs to exercise its right to require the Company to repurchase
such Holder’s Notes pursuant to this Section 4.15, such Holder must
voluntarily separate its EISs representing such Notes.


 


The Company will comply with the requirements of Rule
14e-1 under the Exchange Act and any other securities laws and regulations
thereunder to the extent those laws and regulations are applicable in
connection with the repurchase of the Notes as a result of a Change in
Control.  To the extent that the
provisions of any securities laws or regulations conflict with the provisions
of Sections 3.09 or 4.15 hereof, the Company will comply with the applicable
securities laws and regulations and will not be deemed to have breached its
obligations under Section 3.09 hereof or this Section 4.15 by virtue
of such compliance.


 


(b)                                 On the Change of Control Payment
Date, the Company will, to the extent lawful:


 


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


 


(2)                                  deposit with the Paying Agent an
amount equal to the Change of Control Payment in respect of all Notes or
portions of Notes properly tendered; and


 


(3)                                  deliver or cause to be delivered to
the Trustee the Notes properly accepted together with an Officer’s Certificate
stating the aggregate principal amount of Notes or portions of Notes being
purchased by the Company.


 


The Paying Agent will promptly mail (but in any case
not later than five days after the Change of Control Payment Date) to each
Holder of Notes properly tendered the Change of Control Payment for such Notes,
and the Trustee will promptly authenticate and mail (or cause to be transferred
by book entry) to each Holder a new Note equal in principal amount to any
unpurchased portion of the Notes surrendered, if any.   The Company will publicly announce the
results of the Change of Control Offer on or as soon as practicable after the
Change of Control Payment Date.


 


Notwithstanding anything to the contrary in this
Section 4.15, the Company will not be required to make a Change of Control
Offer upon a Change of Control if (1) 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 Section 4.15 and Section 3.09 hereof and
purchases all Notes properly tendered and not withdrawn under the Change of
Control Offer, or (2) notice of redemption has been given pursuant to
Section 3.07 hereof, unless and until there is a default in payment of the
applicable redemption price.


 


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In the event that at the time of such Change of
Control the terms of any Senior Indebtedness restrict or prohibit the
repurchase of notes pursuant to this covenant, then prior to the mailing of the
notice to holders provided for above but in any event within 90 days following
any Change of Control, the Company shall (i) repay in full all such Senior
Indebtedness or offer to repay in full all such Senior Indebtedness and repay
the Senior Indebtedness of each lender who has accepted such offer or (ii) obtain
the requisite consent under the agreements governing such Senior Indebtedness
to permit the repurchase of the Notes as provided in this Section 4.15.


 


Section 4.16                                Limitation on Sale and Leaseback
Transactions.


 


The Company will not, and will not permit any of its
Restricted Subsidiaries to, enter into any sale and leaseback transaction; provided that the Company or any Guarantor may enter into a
sale and leaseback transaction if:


 


(1)                                  the Company or that Guarantor, as
applicable, could have (a) incurred Indebtedness in an amount equal to the
Attributable Debt relating to such sale and leaseback transaction under the
Fixed Charge Coverage Ratio test in Section 4.09(a) hereof and
(b) incurred a Lien to secure such Indebtedness pursuant to the provisions
of Section 4.12 hereof;


 


(2)                                  the gross cash proceeds of that
sale and leaseback transaction are at least equal to the Fair Market Value of
the property that is the subject of that sale and leaseback transaction; and


 


(3)                                  the transfer of assets in that sale
and leaseback transaction is permitted by, and the Company applies the proceeds
of such transaction in compliance with, Section 4.10 hereof.


 


Section 4.17                                Payments for Consent.


 


The Company will not, and will not permit any of its
Restricted Subsidiaries to, directly or indirectly, pay or cause to be paid any
consideration to or for the benefit of any Holder of Notes for or as an
inducement to any consent, waiver or amendment of any of the terms or
provisions of this Indenture or the Notes unless such consideration is offered
to be paid and is paid to all Holders of the Notes that consent, waive or agree
to amend in the time frame set forth in the solicitation documents relating to
such consent, waiver or agreement.


 


Section 4.18                                Additional Note Guarantees.


 


If the Company or any of its Restricted Subsidiaries
acquires or creates another Domestic Subsidiary after the date of this
Indenture, then that newly acquired or created Domestic Subsidiary will become
a Guarantor and execute a supplemental indenture and


 


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deliver an Opinion of
Counsel (subject to customary assumptions and exceptions) satisfactory to the
Trustee within 10 Business Days of the date on which it was acquired or
created; provided that any Domestic Subsidiary
that constitutes an Immaterial Subsidiary need not become a Guarantor until
such time as it ceases to be an Immaterial Subsidiary.  The form of such Note Guarantee is attached
as Exhibit E hereto.


 


Section 4.19                                Designation of Restricted and
Unrestricted Subsidiaries.


 


The Board of Directors of the Company may designate
any Restricted Subsidiary to be an Unrestricted Subsidiary if that designation
would not cause a Default.  If a
Restricted Subsidiary is designated as an Unrestricted Subsidiary the aggregate
Fair Market Value of all outstanding Investments owned by the Company and its
Restricted Subsidiaries in the Subsidiary designated as Unrestricted will be
deemed to be an Investment made as of the time of the designation and will
reduce the amount available for Restricted Payments under Section 4.07
hereof or under one or more clauses of the definition of Permitted Investments,
as determined by the Company.  That
designation will only be permitted if the Investment would be permitted at that
time and if the Restricted Subsidiary otherwise meets the definition of an
Unrestricted Subsidiary.  The Board of
Directors of the Company may redesignate any Unrestricted Subsidiary to be a
Restricted Subsidiary if that redesignation would not cause a Default.


 


Any designation of a Subsidiary of the Company as an
Unrestricted Subsidiary will be evidenced to the Trustee by filing with the
Trustee a certified copy of a resolution of the Board of Directors giving
effect to such designation and an Officer’s Certificate certifying that such
designation complied with the preceding conditions and was permitted by
Section 4.07 hereof.  If, at any
time, any Unrestricted Subsidiary would fail to meet the preceding requirements
as an Unrestricted Subsidiary, it will thereafter cease to be an Unrestricted
Subsidiary for purposes of this Indenture and any Indebtedness of such
Subsidiary will be deemed to be incurred by a Restricted Subsidiary of the
Company as of such date and, if such Indebtedness is not permitted to be
incurred as of such date under Section 4.09 hereof, the Company will be in
default of such covenant.  The Board of
Directors of the Company may at any time designate any Unrestricted Subsidiary
to be a Restricted Subsidiary; provided that
such designation will be deemed to be an incurrence of Indebtedness by a
Restricted Subsidiary of the Company of any outstanding Indebtedness of such
Unrestricted Subsidiary and such designation will only be permitted if
(1) such Indebtedness is permitted under Section 4.09 hereof,
calculated on a pro forma basis as if such designation had occurred at the
beginning of the four-quarter reference period; and (2) no Default or
Event of Default would be in existence following such designation.


 


Section
4.20                                No Layering of Debt.


 


The Company will not incur, create, issue, assume,
guarantee or otherwise become liable for any Indebtedness that is contractually
subordinate or junior in right of


 


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payment to any Senior
Indebtedness of the Company and senior in right of payment to the Notes.  No Guarantor will incur, create, issue,
assume, guarantee or otherwise become liable for any Indebtedness that is
contractually subordinate or junior in right of payment to the Senior Indebtedness
of such Guarantor and senior in right of payment to such Guarantor’s Note
Guarantee.  No such Indebtedness will be
considered to be senior by virtue of being secured on a first or junior
priority basis.


 


Section 4.21                                Subsequent
Issuances.


 


The Company may issue Additional Notes provided that
(1) no Event of Default has occurred and is continuing at the time of or
would be caused by such issuance, (2) the Incurrence of Indebtedness
evidenced by such Additional Notes is permitted pursuant to Section 4.09,
and (3) if such Additional Notes are issued in connection with the
issuance of the Company’s EISs or Class A Common Stock, the ratio of the aggregate
principal amount of such Additional Notes to the number of such additional
shares of the Class A Common Stock shall be equal to the equivalent ratio
with respect to the Notes and shares of Class A Common Stock represented by
EISs outstanding immediately prior to the issuance of such Additional Notes.


 


The Company may issue Additional Notes only if it
delivers to the Trustee on the date of such issuance a certificate of the
Company’s principal financial officer stating that on such date, after giving
pro forma effect to the issuance of such Additional Notes and the related
Guarantees, the Company and the Guarantors are solvent.  Furthermore,
the Company may issue Additional Notes only if it has received an opinion of
independent tax counsel to the effect that the Additional Notes should be
treated as debt for U.S. federal income tax purposes.


 


The Company agrees, and by purchasing the Notes each
Holder and each owner of a beneficial interest in a Global Note shall be deemed
to have agreed, that, upon the issuance by the Company of any Additional Notes,
if the Company determines that such Additional Notes should be assigned a
different CUSIP number than the CUSIP number assigned to the Initial Notes,
then immediately following such issuance (and immediately following any
issuance of Additional Notes thereafter) a portion of each such Holder’s or
beneficial owner’s Initial Notes and/or Additional Notes, as applicable, or
beneficial ownership interest therein, will automatically, without any action
by such Holder or beneficial owner, be exchanged (each, an “Automatic Exchange”) for a portion of
each other Holder’s Initial Notes and/or Additional Notes or each other
beneficial owner’s beneficial interest in the Initial Notes and/or Additional
Notes, as applicable, such that each Holder and owner of a beneficial interest
in a Global Note will hold Notes or beneficial interests in the Global Notes of
each issuance in the same proportion as each other Holder and owner of
beneficial interests in the Global Notes. 
The aggregate stated principal amount of Notes owned by each Holder and
owner of a beneficial interest in a Global Note will not change as a result of
the Automatic Exchange.  Immediately
following the Automatic Exchange, the Company and the Trustee will instruct the


 


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Depository to facilitate
the combination of the Notes issued prior to the date of issuance of such
Additional Notes and such Additional Notes into inseparable units (“Note Units”) in accordance with the
procedures of the Depository.  The Note
Units will be assigned a new CUSIP number, and the transfers and exchanges of
beneficial interests in the Note Units will be effected through the Depository.


 


At least ten (10) business days prior to the closing
of the issuance of Additional Notes that will result in an Automatic Exchange,
the Company shall notify the Trustee in writing of its intention to consummate
such subsequent issuance and shall instruct the Trustee and Depository to take
any action necessary to effect the Automatic Exchange.  Such notice may be revoked at any time prior
to the date fixed for such Automatic Exchange.


 


The Company agrees, and by acceptance of beneficial
ownership in the Notes each beneficial owner of the Notes shall be deemed to
have agreed, that (1) the Company will report any “original issue discount” (as determined for U.S. federal income
tax purposes) associated with the Initial Notes and Additional Notes among all
beneficial owners in proportion to their ownership of the aggregate principal
amount of Notes and (2) each beneficial owner of the Notes shall report
such original issue discount in this manner and shall not take an inconsistent
position for any applicable tax purpose.


 


With respect to any Additional Notes with a different
CUSIP number exchanged in any Automatic Exchange, Holders and owners of
beneficial interests in the Global Notes may obtain the amount of original
issue discount in respect of such Additional Notes, the date of issuance, the
issue price and the yield to maturity by submitting a written request to the
Trustee.


 


Section
4.22                                Combination of Notes and Class A Common Stock.


 


As long as Notes are outstanding, any Holder of Notes
that do not constitute part of an EIS and of shares of Class A Common Stock
that do not constitute part of an EIS may, at any time, combine such Notes and
shares of Class A Common Stock (in the same proportion as the Notes and shares
of Class A Common Stock represented by the EISs outstanding at the time of such
combination) to form EISs, unless all EISs have been previously automatically
separated as a result of redemption or maturity of the Notes or otherwise [or
there are otherwise no longer any EISs outstanding.]


 


ARTICLE 5

SUCCESSORS


 


Section 5.01                                Merger, Consolidation, or Sale of
Assets.


 


The Company shall not, directly or indirectly:
(1) consolidate or merge with or into another Person (whether or not the
Company is the surviving entity); or (2) sell,


 


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assign, transfer, convey
or otherwise dispose of all or substantially all of the properties or assets
(such amounts to be computed on a consolidated basis) of the Company and its
Restricted Subsidiaries taken as a whole, in one or more related transactions,
to another Person, unless:


 


(1)                                  either: (a) the Company is the
surviving corporation; or (b) the Person formed by or surviving any such
consolidation or merger (if other than the Company) or to which such sale,
assignment, transfer, conveyance or other disposition has been made is either
(i) a corporation organized or existing under the laws of the United
States, any state of the United States or the District of Columbia or
(ii) a partnership or limited liability company organized or existing
under the laws of the United States, any state of the United States or the
District of Columbia that has at least one Restricted Subsidiary that is a
corporation organized or existing under the laws of the United States, any
state of the United States or the District of Columbia, which corporation
becomes the co-issuer of the Notes pursuant to a supplemental indenture
reasonably satisfactory to the Trustee;


 


(2)                                  the Person formed by or surviving
any such consolidation or merger (if other than the Company) or the Person to
which such sale, assignment, transfer, conveyance or other disposition has been
made assumes all the obligations of the Company under the Notes and this
Indenture pursuant to agreements reasonably satisfactory to the Trustee;


 


(3)                                  immediately after such transaction,
no Default or Event of Default exists; and


 


(4)                                  the Company or the Person formed by
or surviving any such consolidation or merger (if other than the Company), or
to which such sale, assignment, transfer, conveyance or other disposition has
been made would, on the date of such transaction after giving pro forma effect
thereto and any related financing transactions as if the same had occurred at
the beginning of the applicable four-quarter period, either:


 


(A)                              be permitted to incur at least
$1.00 of additional Indebtedness pursuant to the Fixed Charge Coverage Ratio
test set forth in Section 4.09(a) hereof.


 


(B)                                have a Fixed Charge Coverage Ratio
that is equal to or greater than the Fixed Charge Coverage Ratio of the Company
immediately prior to such consolidation, merger, sale, assignment, transfer,
conveyance or other disposition.


 


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In addition, the Company shall not, directly or
indirectly, lease all or substantially all of the properties and assets of it
and its Restricted Subsidiaries taken as a whole, in one or more related
transactions, to any other Person.


 


This Section 5.01 will not apply to:


 


(1)                                  a merger of the Company with an
Affiliate solely for the purpose of reincorporating the Company in another
jurisdiction; or


 


(2)                                  any consolidation or merger, or any
sale, assignment, transfer, conveyance, lease or other disposition of assets
between or among the Company and its Restricted Subsidiaries.


 


Section 5.02                                Successor Corporation
Substituted.


 


Upon any consolidation or merger, or any sale,
assignment, transfer, lease, conveyance or other disposition of all or substantially
all of the properties or assets of the Company in a transaction that is subject
to, and that complies with the provisions of, Section 5.01 hereof, the
successor Person formed by such consolidation or into or with which the Company
is merged or to which such sale, assignment, transfer, lease, conveyance or
other disposition is made shall succeed to, and be substituted for (so that
from and after the date of such consolidation, merger, sale, assignment,
transfer, lease, conveyance or other disposition, the provisions of this
Indenture referring to the “Company” shall refer instead to the successor
Person and not to the Company), and may exercise every right and power of the
Company under this Indenture with the same effect as if such successor Person
had been named as the Company herein; provided, however,
that the predecessor Company shall not be relieved from the obligation to pay
the principal of and interest on the Notes except in the case of a sale of all
of the Company’s assets in a transaction that is subject to, and that complies
with the provisions of, Section 5.01 hereof.


 


ARTICLE
6

DEFAULTS AND REMEDIES


 


Section 6.01                                Events of Default.


 


Each of the following is an “Event of Default”:


 


(1)                                  default for 30 consecutive days in
the payment when due of interest on the Notes, whether or not prohibited by
Article 10 hereof;


 


(2)                                  default in the payment when due (at
maturity, upon redemption or otherwise) of the principal of, or premium, if
any, on, the Notes, whether or not prohibited by Article 10 hereof;


 


74





















 


(3)                                  failure by the Company or any of
its Restricted Subsidiaries to comply with the provisions of Section 5.01
hereof;


 


(4)                                  failure by the Company or any of
its Restricted Subsidiaries for 30 days to comply with the provisions of
Sections 4.10 and 4.15 hereof;


 


(5)                                  failure by the Company or any of
its Restricted Subsidiaries for 60 days after written notice to the Company by
the Trustee or the Holders of at least 25% in aggregate principal amount of the
Notes then outstanding voting as a single class to comply with any of the other
agreements in this Indenture;


 


(6)                                  default under any mortgage,
indenture or instrument under which there may be issued or by which there may
be secured or evidenced any Indebtedness for money borrowed by the Company or
any of its Restricted Subsidiaries (or the payment of which is guaranteed by
the Company or any of its Restricted Subsidiaries), whether such Indebtedness
or Guarantee now exists, or is created after the date of this Indenture, if
that default:


 


(A)                              is caused by a failure to pay
principal of, or interest or premium, if any, on, such Indebtedness prior to
the expiration of the grace period provided in such Indebtedness on the date of
such default (a “Payment Default”);
or


 


(B)                                results in the acceleration of such
Indebtedness prior to its express maturity,


 


and, in each case, the principal amount of any such
Indebtedness, together with the principal amount of any other such Indebtedness
under which there has been a Payment Default or the maturity of which has been
so accelerated, aggregates $10.0 million or more;


 


(7)                                  failure by the Company or any of
its Restricted Subsidiaries to pay final judgments entered by a court or courts
of competent jurisdiction aggregating in excess of $10.0 million, which
judgments are not paid, discharged or stayed for a period of 60 days after
their entry;


 


(8)                                  the Company or any of its
Restricted Subsidiaries that is a Significant Subsidiary or any group of
Restricted Subsidiaries of the Company that, taken together, would constitute a
Significant Subsidiary pursuant to or within the meaning of Bankruptcy Law:


 


(A)                              commences a voluntary case,


 


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


 


(C)                                consents to the appointment of a
custodian of it or for all or substantially all of its property,


 


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


 


(E)                                 generally is not paying its debts
as they become due;


 


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


 


(A)                              is for relief against the Company
or any of its Restricted Subsidiaries that is a Significant Subsidiary or any
group of Restricted Subsidiaries of the Company that, taken together, would
constitute a Significant Subsidiary in an involuntary case;


 


(B)                                appoints a custodian of the Company
or any of its Restricted Subsidiaries that is a Significant Subsidiary or any
group of Restricted Subsidiaries of the Company that, taken together, would
constitute a Significant Subsidiary or for all or substantially all of the
property of the Company or any of its Restricted Subsidiaries that is a
Significant Subsidiary or any group of Restricted Subsidiaries of the Company
that, taken together, would constitute a Significant Subsidiary; or


 


(C)                                orders the liquidation of the
Company or any of its Restricted Subsidiaries that is a Significant Subsidiary
or any group of Restricted Subsidiaries of the Company that, taken together,
would constitute a Significant Subsidiary;


 


and the order or decree remains unstayed and in effect
for 60 consecutive days;


 


(10)                            a
payment of dividends by the Company on its common stock (A) during the
continuance of an Event of Default, (B) pursuant to the second
clause (1) of paragraph (a) of Section 4.07 of this Indenture when
the then-available financial statements presented to the Board of Directors of
the Company show a Fixed Charge Coverage Ratio of less than 1.6 to 1.0, or
(C) pursuant to the second clause (2) of paragraph (a) of
Section 4.07 of this Indenture when the then-available financial
statements presented to the Board of Directors of the Company show that the
amount of dividends paid exceeds the amount permitted to be paid under such
clause; or


 


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(11)                            except as permitted by this
Indenture, any Note Guarantee is held in any judicial proceeding to be
unenforceable or invalid or ceases for any reason to be in full force and
effect, or any Guarantor, or any Person acting on behalf of any Guarantor,
denies or disaffirms its obligations under its Note Guarantee.


 


Section 6.02                                Acceleration.


 


In the case of an Event of Default specified in
clause (8) or (9) of Section 6.01 hereof, with respect to the
Company, any Restricted Subsidiary of the Company that is a Significant
Subsidiary or any group of Restricted Subsidiaries of the Company that, taken
together, would constitute a Significant Subsidiary, all outstanding Notes will
become due and payable immediately without further action or notice.  If any other Event of Default occurs and is
continuing, the Trustee or the Holders of at least 25% in aggregate principal
amount of the then outstanding Notes may declare all the Notes to be due and
payable immediately.


 


Upon any such declaration, the Notes shall become due
and payable immediately.


 


The Holders of a majority in aggregate principal
amount of the then outstanding Notes by written notice to the Trustee may, on
behalf of all of the Holders, rescind an acceleration and its consequences, if
the rescission would not conflict with any judgment or decree and if all
existing Events of Default (except nonpayment of principal, interest or
premium, if any, that has become due solely because of the acceleration) have
been cured or waived.


 


If an Event of Default occurs on or after October 30,
2009 by reason of any willful action (or inaction) taken (or not taken) by or
on behalf of the Company with the intention of avoiding payment of the premium
that the Company would have had to pay if the Company then had elected to
redeem the Notes pursuant to Section 3.07 hereof, then, upon acceleration
of the Notes, an equivalent premium shall also become and be immediately due
and payable, to the extent permitted by law, anything in this Indenture or in
the Notes to the contrary notwithstanding. If an Event of Default occurs prior
to October 30, 2009 by reason of any willful action (or inaction) taken
(or not taken) by or on behalf of the Company with the intention of avoiding
the prohibition on redemption of the Notes prior to such date, then, upon
acceleration of the Notes, an additional premium shall also become and be
immediately due and payable, to the extent permitted by law, in an amount, for
each of the years beginning on October 30 of the years set forth below, as set
forth below (expressed as a percentage of the principal amount of the Notes on
the date of payment that would otherwise be due but for the provisions of this
sentence):


 


77





















 


	
  Year

  	
   

  	
  Percentage

  	
   

  
	
  2009

  	
   

  	
  106.000

  	
  %

  
	
  2010

  	
   

  	
  104.000

  	
  %

  
	
  2011

  	
   

  	
  102.000

  	
  %

  
	
  2012 and thereafter

  	
   

  	
  100.000

  	
  %

  



 


Section 6.03                                Other Remedies.


 


If an Event of Default occurs and is continuing, the
Trustee may pursue any available remedy to collect the payment of principal,
premium, if any, and interest 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 of a Note in exercising any right or remedy accruing upon
an Event of Default shall not impair the right or remedy or constitute a waiver
of or acquiescence in the Event of Default. 
All remedies are cumulative to the extent permitted by law.


 


Section 6.04                                Waiver of Past Defaults.


 


Holders of not less than a majority in aggregate
principal amount of the then outstanding Notes by notice to the Trustee may on
behalf of the Holders of all of the Notes waive an existing Default or Event of
Default and its consequences hereunder, except a continuing Default or Event of
Default in the payment of the principal of, premium, if any, or interest on,
the Notes (including in connection with an offer to purchase) or an Event of
Default under clause (10) of Section 6.01; provided,
however, that the Holders of a majority in aggregate principal
amount of the then outstanding Notes may rescind an acceleration and its consequences,
including any related payment default that resulted from such
acceleration.  Upon any such waiver, such
Default shall cease to exist, and any Event of Default arising therefrom shall
be deemed to have been cured for every purpose of this Indenture; but no such
waiver shall extend to any subsequent or other Default or impair any right
consequent thereon.


 


Section 6.05                                Control by Majority.


 


Holders of a majority in aggregate principal amount of
the then outstanding Notes may direct the time, method and place of conducting
any proceeding for exercising any remedy available to the Trustee or exercising
any trust or power conferred on it. 
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
prejudicial to the rights of other Holders of Notes or that may involve the
Trustee in personal liability.


 


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Section 6.06                                Limitation on Suits.


 


A Holder may pursue a remedy with respect to this
Indenture or the Notes, except for any remedy with respect to an Event of
Default under this Indenture, only if:


 


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


 


(2)                                  Holders of at least 25% (or
at least 10%, in respect of a remedy (other than acceleration) for an Event of
Default under clause (10) of Section 6.01 hereof) in aggregate principal amount of the then outstanding Notes make a
written request to the Trustee to pursue the remedy for such Event of Default;


 


(3)                                  such Holder or Holders offer and,
if requested, provide to the Trustee security or indemnity reasonably
satisfactory to the Trustee against any loss, liability or expense;


 


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


 


(5)                                  except with respect to a remedy
(other than acceleration) for an Event of Default under clause (10) of
Section 6.01 hereof), during such 60-day period, Holders of a majority in
aggregate principal amount of the then outstanding Notes do not give the
Trustee a direction inconsistent with such request.


 


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


 


Section 6.07                                Rights of Holders of Notes to
Receive Payment.


 


Notwithstanding any other provision of this Indenture,
the right of any Holder of a Note to receive payment of principal, premium, if
any, and interest on the 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 6.08                                Collection Suit by Trustee.


 


If an Event of Default specified in
Section 6.01(1) or (2) hereof occurs and is continuing, the Trustee is
authorized to recover judgment in its own name and as trustee of an express
trust against the Company for the whole amount of principal of, premium, if
any, and interest 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


 


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costs and expenses of
collection, including the reasonable compensation, expenses, disbursements and
advances of the Trustee, its agents and counsel.


 


Section 6.09                                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 of the Notes allowed in any judicial proceedings relative to
the Company (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 7.07 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 7.07
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.


 


Section 6.10                                Priorities.


 


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


 


First:  to the Trustee, its agents and attorneys for
amounts due under Section 7.07 hereof, including payment of all
compensation, expenses and liabilities incurred, and all advances made, by the
Trustee and the costs and expenses of collection;


 


Second:  to holders of Senior Indebtedness to the
extent required by Article 10 and Section 11.02 of this Indenture;


 


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


 


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


 


The Trustee may fix a record date and payment date for
any payment to Holders of Notes 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 and expenses, 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
of a Note pursuant to Section 6.07 hereof, or a suit by Holders of more
than 10% in aggregate principal amount of the then outstanding Notes.


 


ARTICLE 7

TRUSTEE


 


Section 7.01                                Duties of Trustee.


 


(a)                                  If an Event of Default has occurred
and is continuing, the Trustee will 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:


 


(1)                                  the duties of the Trustee will 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


 


(2)                                  in the absence of bad faith on its
part, the Trustee may conclusively rely, as to the truth of the statements and
the correctness of the opinions expressed therein, upon certificates or
opinions furnished to the Trustee and conforming to the requirements of this
Indenture.  However, the Trustee will


 


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examine the certificates and opinions to determine whether or not
they conform to the requirements of this Indenture.


 


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


 


(1)                                  this paragraph does not limit the
effect of paragraph (b) of this Section 7.01;


 


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


 


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


 


(d)                                 Whether or not therein expressly so
provided, every provision of this Indenture that in any way relates to the
Trustee is subject to paragraphs (a), (b), and (c) of this
Section 7.01.


 


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


 


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


 


Section 7.02                                Rights of Trustee.


 


(a)                                  The Trustee may conclusively rely
and shall be protected in acting or refraining from acting 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, it may require an Officers’ Certificate or an Opinion of Counsel
or both.  The Trustee will not be liable
for any action it takes or omits to take in good faith in reliance on such
Officers’ Certificate or Opinion of Counsel. 
The Trustee may consult with counsel and the written advice of such
counsel or any Opinion of Counsel will be full and complete authorization and


 


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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 act through its
attorneys and agents and will not be responsible for the misconduct or
negligence of any agent appointed with due care.


 


(d)                                 The Trustee will 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
Company will be sufficient if signed by an Officer of the Company.


 


(f)                                    The Trustee will 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
have offered to the Trustee reasonable indemnity or security satisfactory to it
against the losses, liabilities and expenses that might be incurred by it in
compliance with such request or direction.


 


(g)                                 in no event shall the Trustee be
responsible or liable for special, indirect, or consequential loss or damage of
any kind whatsoever (including, but not limited to, loss of profit)
irrespective of whether the Trustee has been advised of the likelihood of such
loss or damage and regardless of the form of action.


 


(h)                                 the Trustee shall not be deemed to
have notice of any Default or Event of Default unless a Responsible Officer of
the Trustee has actual knowledge thereof or unless written notice of any event
which is in fact such a default is received by the Trustee at the Corporate
Trust Office of the Trustee, and such notice references the Notes and this
Indenture.


 


(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 each agent, custodian and other Person employed to act hereunder.


 


Section 7.03                                Individual Rights of Trustee.


 


The Trustee in its individual or any other capacity
may become the owner or pledgee of Notes and may otherwise deal with the
Company or any Affiliate of the Company with the same rights it would have if
it were not Trustee.  However, in the
event that the Trustee acquires any conflicting interest it must eliminate such
conflict within 90 days, apply to the SEC for permission to continue as trustee
(if this Indenture


 


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has been qualified under
the TIA) 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 7.04                                Trustee’s Disclaimer.


 


The Trustee will not be responsible for and makes no
representation as to the validity or adequacy of this Indenture or the Notes,
it shall not be accountable for the Company’s use of the proceeds from the
Notes or any money paid to the Company or upon the Company’s direction under
any provision of this Indenture, it will not be responsible for the use or
application of any money received by any Paying Agent other than the Trustee,
and it will 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 7.05                                Notice of Defaults.


 


If a Default or Event of Default occurs and is
continuing and if it is known to the Trustee, the Trustee will mail to Holders
of Notes a notice 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, or interest
on, any Note or an Event of Default under paragraph (10) of Section 6.01
hereof, 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 of the Notes.


 


Section 7.06                                Reports by Trustee to Holders of
the Notes.


 


(a)                                  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 will mail to the Holders of the Notes
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 twelve months preceding the reporting date, no report need be
transmitted).  The Trustee also will
comply with TIA § 313(b)(2).  The
Trustee will also transmit by mail all reports as required by TIA § 313(c).


 


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


 


Section 7.07                                Compensation and Indemnity.


 


(a)                                  The Company will pay to the Trustee
from time to time reasonable compensation for its acceptance of this Indenture
and services hereunder as the parties


 


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shall agree in
writing from time to time.  The Trustee’s
compensation will not be limited by any law on compensation of a trustee of an
express trust.  The Company will
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 will
include the reasonable compensation, disbursements and expenses of the
Trustee’s agents and counsel.


 


(b)                                 The Company and the Guarantors will
indemnify the Trustee against any and all losses, liabilities, claims, damages
or expenses 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 Company and the Guarantors
(including this Section 7.07) and defending itself against any claim
(whether asserted by the Company, the Guarantors, any Holder or any other
Person) or liability in connection with the exercise or performance of any of
its powers or duties hereunder, except to the extent any such loss, liability
or expense may be attributable to its negligence or bad faith.  The Trustee will notify the Company promptly
of any claim for which it may seek indemnity. 
Failure by the Trustee to so notify the Company will not relieve the
Company or any of the Guarantors of their obligations hereunder.  The Company or such Guarantor will defend the
claim and the Trustee will cooperate in the defense.  The Trustee may have separate counsel and the
Company will pay the reasonable fees and expenses of such counsel.  Neither the Company nor any Guarantor need
pay for any settlement made without its consent, which consent will not be unreasonably
withheld.


 


(c)                                  The obligations of the Company and
the Guarantors under this Section 7.07 will survive the satisfaction and
discharge of this Indenture.


 


(d)                                 To secure the Company’s and the
Guarantors’ payment obligations in this Section 7.07, the Trustee will
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 will survive
the satisfaction and discharge of this Indenture.


 


(e)                                  When the Trustee incurs expenses or
renders services after an Event of Default specified in Section 6.01(8) or
(9) hereof occurs, the expenses and the 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.


 


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


 


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Section 7.08                                Replacement of Trustee.


 


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


 


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


 


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


 


(2)                                  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;


 


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


 


(4)                                  the Trustee becomes incapable of
acting.


 


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


 


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


 


(e)                                  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.


 


(f)                                    A successor Trustee will deliver a
written acceptance of its appointment to the retiring Trustee and to the
Company.  Thereupon, the resignation or
removal of the retiring Trustee will become effective, and the successor
Trustee will have all the rights, powers and duties of the Trustee under this
Indenture.  The successor Trustee will
mail a notice of its succession to Holders. 
The retiring Trustee will promptly transfer all


 


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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 7.07 hereof. 
Notwithstanding replacement of the Trustee pursuant to this
Section 7.08, the Company’s obligations under Section 7.07 hereof
will continue for the benefit of the retiring Trustee.


 


Section 7.09                                Successor Trustee by Merger, etc.


 


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


 


Section 7.10                                Eligibility; Disqualification.


 


There will at all times be a Trustee hereunder that is
a corporation 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 a combined capital and surplus of
at least $100.0 million as set forth in its most recent published annual
report of condition.


 


This Indenture will 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 Company.


 


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
8

LEGAL DEFEASANCE AND COVENANT DEFEASANCE


 


Section 8.01                                Option to Effect Legal Defeasance
or Covenant Defeasance.


 


The Company may at any time, at the option of its
Board of Directors evidenced by a resolution set forth in an Officers’
Certificate, elect to have either Section 8.02 or 8.03 hereof be applied
to all outstanding Notes upon compliance with the conditions set forth below in
this Article 8.


 


Section 8.02                                Legal Defeasance and Discharge.


 


Upon the Company’s exercise under Section 8.01
hereof of the option applicable to this Section 8.02, the Company and each
of the Guarantors will, subject to the satisfaction of the conditions set forth
in Section 8.04 hereof, be deemed to have been


 


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discharged from their
obligations with respect to all outstanding Notes (including the Note
Guarantees) on the date the conditions set forth below are satisfied
(hereinafter, “Legal Defeasance”).  For this purpose, Legal Defeasance means that
the Company and the Guarantors will be deemed to have paid and discharged the
entire Indebtedness represented by the outstanding Notes (including the Note
Guarantees), which will thereafter be deemed to be “outstanding”
only for the purposes of Section 8.05 hereof and the other Sections of
this Indenture referred to in clauses (1) and (2) below, and to have
satisfied all their other obligations under such Notes, the Note Guarantees and
this Indenture (and the Trustee, on demand of and at the expense of the
Company, shall execute proper instruments acknowledging the same), except for
the following provisions which will survive until otherwise terminated or
discharged hereunder:


 


(1)                                  the rights of Holders of
outstanding Notes to receive payments in respect of the principal of, or
interest or premium, if any, on such Notes when such payments are due from the
trust referred to in Section 8.04 hereof;


 


(2)                                  the Company’s obligations with
respect to such Notes under Article 2 and Section 4.02 hereof;


 


(3)                                  the rights, powers, trusts, duties
and immunities of the Trustee hereunder and the Company’s and the Guarantors’
obligations in connection therewith; and


 


(4)                                  this Article 8.


 


Subject to compliance with this Article 8, the Company
may exercise its option under this Section 8.02 notwithstanding the prior
exercise of its option under Section 8.03 hereof.


 


Section 8.03                                Covenant Defeasance.


 


Upon the Company’s exercise under Section 8.01
hereof of the option applicable to this Section 8.03, the Company and each
of the Guarantors will, subject to the satisfaction of the conditions set forth
in Section 8.04 hereof, be released from each of their obligations under
the covenants contained in Sections 4.07, 4.08, 4.09, 4.10, 4.11, 4.12, 4.13,
4.15, 4.16, 4.17, 4.18, 4.19 and 4.20 hereof and clause (4) of
Section 5.01 hereof with respect to the outstanding Notes on and after the
date the conditions set forth in Section 8.04 hereof are satisfied
(hereinafter, “Covenant Defeasance”),
and the Notes will 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 will continue to be deemed “outstanding” for all other purposes hereunder (it being understood that
such Notes will not be deemed outstanding for accounting purposes).  For this purpose, Covenant Defeasance means
that, with respect to the outstanding Notes and Note Guarantees, the Company
and the


 


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Guarantors may omit to
comply with and will 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 will not constitute a Default or an
Event of Default under Section 6.01 hereof, but, except as specified
above, the remainder of this Indenture and such Notes and Note Guarantees will
be unaffected thereby.  In addition, upon
the Company’s exercise under Section 8.01 hereof of the option applicable
to this Section 8.03, subject to the satisfaction of the conditions set
forth in Section 8.04 hereof, Sections 6.01(3) through 6.01(6) hereof will
not constitute Events of Default.


 


Section 8.04                                Conditions to Legal or Covenant
Defeasance.


 


In order to exercise either Legal Defeasance or
Covenant Defeasance under either Section 8.02 or 8.03 hereof:


 


(1)                                  the Company must irrevocably
deposit with the Trustee, in trust, for the benefit of the Holders, cash in
U.S. dollars, non-callable Government Securities, or a combination thereof, in
such amounts as will be sufficient, in the opinion of a nationally recognized
investment bank, appraisal firm or independent registered public accounting
firm, to pay the principal of, premium and, if any, interest on, the
outstanding Notes on the stated date for payment thereof or on the applicable
redemption date, as the case may be, and the Company must specify whether the
Notes are being defeased to such stated date for payment or to a particular
redemption date;


 


(2)                                  in the case of an election under
Section 8.02 hereof, the Company must deliver to the Trustee an Opinion of
Counsel confirming that:


 


(A)                              the Company has received from, or
there has been published by, the Internal Revenue Service a ruling; or


 


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


 


in either case to
the effect that, and based thereon such Opinion of Counsel shall confirm that,
the Holders of the outstanding 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;


 


(3)                                  in the case of an election under
Section 8.03 hereof, the Company must deliver to the Trustee an Opinion of
Counsel confirming that the Holders of


 


89





















 


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


 


(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) and the deposit will not result in a breach or violation of, or
constitute a default under, any other material instrument to which the Company
or any Guarantor is a party or by which the Company or any Guarantor is bound
and is not prohibited by Article 10 or Section 11.02 of this Indenture;


 


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


 


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


 


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


 


Section 8.05                                Deposited Money and Government
Securities to be Held in Trust; Other Miscellaneous Provisions.


 


Subject to Section 8.06 hereof, all money and
non-callable Government Securities (including the proceeds thereof) deposited
with the Trustee (or other qualifying trustee, collectively for purposes of
this Section 8.05, the “Trustee”)
pursuant to Section 8.04 hereof in respect of the outstanding Notes will
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 Company 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 and, if any, interest, but such money
need not be segregated from other funds except to the extent required by law.


 


The Company will pay and indemnify the Trustee against
any tax, fee or other charge imposed on or assessed against the cash or
non-callable Government Securities


 


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deposited pursuant to
Section 8.04 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 of the outstanding Notes.


 


Notwithstanding anything in this Article 8 to the
contrary, the Trustee will deliver or pay to the Company from time to time upon
the request of the Company any money or non-callable Government Securities held
by it as provided in Section 8.04 hereof which, in the opinion of a
nationally recognized firm of independent public accountants expressed in a
written certification thereof delivered to the Trustee (which may be the
opinion delivered under Section 8.04(1) 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 8.06                                Repayment to Company.


 


Any money deposited with the Trustee or any Paying
Agent, or then held by the Company, in trust for the payment of the principal
of, premium, if any, or interest on, any Note and remaining unclaimed for two
years after such principal, premium, if any, or interest has become due and
payable shall be paid to the Company on its request or (if then held by the
Company) will be discharged from such trust; and the Holder of such Note will
thereafter be permitted to look only to the Company for payment thereof, and all
liability of the Trustee or such Paying Agent with respect to such trust money,
and all liability of the Company as trustee thereof, will thereupon cease; provided, however, that the Trustee or such Paying Agent,
before being required to make any such repayment, may at the expense of the
Company cause to be published once, in 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 will not be less than 30 days from the
date of such notification or publication, any unclaimed balance of such money
then remaining will be repaid to the Company.


 


Section 8.07                                Reinstatement.


 


If the Trustee or Paying Agent is unable to apply any
U.S. dollars or non-callable Government Securities in accordance with
Section 8.02 or 8.03 hereof, as the case may be, by reason of any order or
judgment of any court or governmental authority enjoining, restraining or
otherwise prohibiting such application, then the Company’s and the Guarantors’
obligations under this Indenture and the Notes and the Note Guarantees will be
revived and reinstated as though no deposit had occurred pursuant to
Section 8.02 or 8.03 hereof until such time as the Trustee or Paying Agent
is permitted to apply all such money in accordance with Section 8.02 or
8.03 hereof, as the case may be; provided, however,
that, if the Company makes any payment of principal of, premium or interest on,
any Note following the reinstatement of its obligations, the Company will 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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ARTICLE
9

AMENDMENT, SUPPLEMENT AND WAIVER


 


Section 9.01                                Without Consent of Holders of
Notes.


 


Notwithstanding Section 9.02 of this Indenture,
the Company, the Guarantors and the Trustee may amend or supplement this
Indenture or the Notes or the Note Guarantees without the consent of any Holder
of Note:


 


(1)                                  to cure any ambiguity, omission,
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
the Company’s or a Guarantor’s obligations to the Holders of Notes and Note
Guarantees by a successor to the Company or such Guarantor pursuant to Article
5 hereof;


 


(4)                                  to make any change that would
provide any additional rights or benefits to the Holders of Notes or that does
not adversely affect the legal rights hereunder of any Holder;


 


(5)                                  to comply with requirements of the
SEC in order to effect or maintain the qualification of this Indenture under
the TIA;


 


(6)                                  to conform the text of this
Indenture, the Note Guarantees or the Notes to any provision of the “Description of Senior Subordinated Notes” section of the Company’s Prospectus
dated October 7, 2004,
relating to the initial offering of the Notes, to the extent that such
provision in that “Description of
Senior Subordinated Notes” was
intended to be a verbatim recitation of a provision of this Indenture, the Note
Guarantees or the Notes;


 


(7)                                  to provide for or confirm the
issuance of Additional Notes in accordance with the limitations set forth in
this Indenture;


 


(8)                                  to comply with the provisions of
the Depository or the Trustee with respect to the provisions of this Indenture
and the Notes relating to transfers and exchanges of Notes or beneficial
interests in the Notes; or


 


(9)                                  to evidence the release of any
Guarantor permitted to be released under the terms of this Indenture or to
allow any Guarantor to execute a supplemental indenture and/or a Note Guarantee
with respect to the Notes.


 


Notwithstanding the foregoing, no amendment may be
made to Article 10 or Section 11.02 of this Indenture that adversely
affects the rights of any holder of Senior


 


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Indebtedness of the
Company or any Guarantor then outstanding unless the holders of such Senior
Indebtedness (or their Representative) consent to such change.


 


Upon the request of the Company accompanied by a
resolution of its Board of Directors authorizing the execution of any such
amended or supplemental indenture, and upon receipt by the Trustee of the
documents described in Section 7.02 hereof, the Trustee will join with the
Company and the Guarantors in the execution of any amended or supplemental
indenture authorized or permitted by the terms of this Indenture and to make
any further appropriate agreements and stipulations that may be therein
contained, but the Trustee will not be obligated to enter into such amended or
supplemental indenture that affects its own rights, duties or immunities under
this Indenture or otherwise.


 


Section 9.02                                With Consent of Holders of Notes.


 


Except as provided below in this Section 9.02,
the Company and the Trustee may amend. modify or supplement this Indenture
(including, without limitation, Section 3.09, 4.10 and 4.15 hereof) and
the Notes and the Note Guarantees with the consent of the Holders of at least a
majority in aggregate principal amount of the then outstanding Notes
(including, without limitation, Additional Notes, if any) voting as a single
class (including, without limitation, consents obtained in connection with a
tender offer or exchange offer for, or purchase of, the Notes), and, subject to
Sections 6.04 and 6.07 hereof, any existing Default or Event of Default (other
than a Default or Event of Default in the payment of the principal of, 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 or the Notes or the Note Guarantees may be waived with the consent of
the Holders of a majority in aggregate principal amount of the then outstanding
Notes (including, without limitation, Additional Notes, if any) voting as a
single class (including, without limitation, consents obtained in connection
with a tender offer or exchange offer for, or purchase of, the Notes).  Section 2.08
hereof shall determine which Notes are considered to be “outstanding” for purposes of this Section 9.02.


 


Upon the request of the Company 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 of Notes as
aforesaid, and upon receipt by the Trustee of the documents described in
Section 7.02 hereof, the Trustee will join with the Company and the
Guarantors in the execution of such amended or supplemental indenture unless
such amended or supplemental indenture directly affects the Trustee’s own
rights, duties or immunities under this Indenture or otherwise, in which case
the Trustee may in its discretion, but will not be obligated to, enter into
such amended or supplemental Indenture.


 


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It is not necessary for the consent of the Holders of
Notes under this Section 9.02 to approve the particular form of any
proposed amendment, supplement or waiver, but it is sufficient if such consent
approves the substance thereof.


 


After an amendment, supplement or waiver under this
Section 9.02 becomes effective, the Company will mail to the Holders of
Notes affected thereby a notice briefly describing the amendment, supplement or
waiver.  Any failure of the Company to
mail such notice, or any defect therein, will not, however, in any way impair
or affect the validity of any such amended or supplemental indenture or
waiver.  Subject to Sections 6.04 and
6.07 hereof, the Holders of a majority in aggregate principal amount of the
Notes then outstanding voting as a single class may waive compliance in a
particular instance by the Company with any provision of this Indenture or the
Notes or the Note Guarantees.  However,
without the consent of each Holder affected, an amendment, supplement or waiver
under this Section 9.02 may not (with respect to any Notes held by a
non-consenting Holder):


 


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


 


(2)                                  reduce the principal of or change
the fixed maturity of any Note or alter or waive any of the provisions with
respect to the redemption of the Notes (except as provided above with respect
to Sections 3.09, 4.10 and 4.15 hereof);


 


(3)                                  reduce the rate of or change the
time for payment of interest, including default interest, on any Note;


 


(4)                                  waive a Default or Event of Default
in the payment of principal of or interest or premium, if any, on, the Notes
(except a rescission of acceleration of the Notes by the Holders of at least a
majority in aggregate principal amount of the then outstanding Notes and a
waiver of the payment default that resulted from such acceleration);


 


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


 


(6)                                  make any change in the provisions
of this Indenture relating to waivers of past Defaults or the rights of Holders
of Notes to receive payments of principal of, or interest or premium, if any,
on, the Notes;


 


(7)                                  waive a redemption payment with
respect to any Note (other than a payment required by Sections 3.09, 4.10 or
4.15 hereof);


 


(8)                                  except
in connection with an offer by the Company to purchase all Notes,
(i) waive an Event of Default under clause (10) of Section 6.01
hereof or


 


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(ii) amend
the covenant described in Section 4.07 in any way that would permit the
Company to take any action described in the second clauses (1) or (2) of the
first paragraph of Section 4.07(a) when the Company would not have
otherwise been permitted to take such action under the terms of such second
clauses (1) or (2) of the first paragraph of Section 4.07(a) as in effect
on the date hereof;


 


(9)                                  release any Guarantor from any of
its obligations under its Note Guarantee or this Indenture, except in
accordance with the terms of this Indenture;


 


(10)                            make any change to the
subordination or ranking provisions of this Indenture or the related
definitions that adversely affect the rights of any Holder; or


 


(11)                            make any change in the preceding
amendment and waiver provisions.


 


Notwithstanding the foregoing, no amendment may be
made to Article 10 or Section 11.02 of this Indenture that adversely
affects the rights of any holder of Senior Indebtedness of the Company or any
Guarantor then outstanding unless the holders of such Senior Indebtedness (or their
Representative) consent to such change.


 


Section 9.03                                Compliance with Trust Indenture Act.


 


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


 


Section 9.04                                Revocation and Effect of Consents.


 


Until an amendment, supplement or waiver becomes
effective, a consent to it by a Holder of a Note is a continuing consent by the
Holder of a Note and every subsequent Holder of a Note or portion of a Note
that evidences the same debt as the consenting Holder’s Note, even if notation
of the consent is not made on any Note. 
However, any such Holder of a Note or subsequent Holder of a Note may
revoke the consent as to its Note if the Trustee receives written notice of
revocation before the date the amendment, supplement or waiver becomes
effective.  An amendment, supplement or
waiver becomes effective in accordance with its terms and thereafter binds
every Holder.


 


Section 9.05                                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 Company in exchange for all Notes may
issue and the Trustee shall, upon receipt of an Authentication Order,
authenticate new Notes that reflect the amendment, supplement or waiver.


 


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


 


Section 9.06                                Trustee to Sign Amendments, etc.


 


The Trustee will sign any amended or supplemental
indenture authorized pursuant to this Article 9 if the amendment or supplement
does not adversely affect the rights, duties, liabilities or immunities of the
Trustee.  The Company may not sign an
amended or supplemental indenture until the Board of Directors of the Company
approves it.  In executing any amended
or supplemental indenture, the Trustee will be entitled to receive and (subject
to Section 7.01 hereof) will be fully protected in relying upon, in
addition to the documents required by Section 13.04 hereof, an Officers’
Certificate and an Opinion of Counsel stating that the execution of such
amended or supplemental indenture is authorized or permitted by this Indenture.


 


ARTICLE 10

SUBORDINATION


 


Section 10.01                          Agreement to
Subordinate.


 


The Company agrees, and each Holder by accepting a
Note agrees, that the Indebtedness evidenced by the Notes is subordinated in
right of payment, to the extent and in the manner provided in this Article 10,
to the prior payment in full of all Senior Indebtedness (whether outstanding on
the date hereof or hereafter created, incurred, assumed or guaranteed), and
that the subordination is for the benefit of the holders of Senior
Indebtedness.


 


Section 10.02                          Liquidation;
Dissolution; Bankruptcy.


 


Upon any payment or distribution of the assets of the
Company upon a total or partial liquidation or dissolution or reorganization of
or similar proceeding relating to the Company or its property, the holders of
Senior Indebtedness will be entitled to receive payment in full of the Senior
Indebtedness before the Holders of Notes are entitled to receive any payment,
and until the Senior Indebtedness is paid in full, any payment or distribution
to which Holders of Notes would be entitled, except as otherwise provided for
in the subordination provisions of this Indenture, will be made to Holders of
the Senior Indebtedness as their interests may appear (except that holders of
notes may receive and retain (i) Permitted Junior Securities, and
(ii) payments made from the trust created pursuant to Section 8.05
hereof so long as, on the date or dates the respective amounts were paid into
the trust, such payments were made with respect to the Notes without violating
the provisions of this Article 10 or any other material agreement binding
on the Company).  If a distribution is
made to Holders of Notes that due to the provisions of this Article 10 should
not have been made to them, such Holders are


 


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required to hold it in
trust for the holders of Senior Indebtedness and to make payment to the holders
of Senior Indebtedness as their interest may appear.


 


Section 10.03                          Default on
Designated Senior Indebtedness.


 


The Company may not make any payment or distribution
to the Trustee or any Holder in respect of Obligations with respect to the
Notes or make any deposit pursuant to the provisions of Article 8 of this
Indenture and may not otherwise purchase, redeem or otherwise retire any Notes
(collectively, “pay the Notes”)
if (i) a default in the payment of the principal of, premium, if any, or
interest on any Designated Senior Indebtedness occurs and is continuing beyond
any applicable grace period or any other amount owing in respect of any
Designated Senior Indebtedness is not paid when due, or (ii) any other
default on Designated Senior Indebtedness occurs and the maturity of such
Designated Senior Indebtedness is accelerated in accordance with its terms unless,
in either case, (x) the default has been cured or waived and any such
acceleration has been rescinded or (y) such Designated Senior Indebtedness
has been paid in full (except that Holders may receive and retain
(a) Permitted Junior Securities and (b) payments made from the trust
in accordance with Section 8.05 hereof so long as, on the date or dates
the respective amounts were paid into the trust, such payments were made with
respect to the Notes without violating the provisions of this Article 10 or any
other material agreement binding on the Company).  However, the Company may pay the Notes without regard to the
foregoing if the Company and the Trustee receive written notice approving such
payment from the Representative of such Designated Senior Indebtedness with
respect to which either of the events in clause (i) or (ii) of the
immediately preceding sentence has occurred and is continuing.  In addition to the foregoing, during the
continuance of any default (other than a default described in clause (i)
or (ii) of the second preceding sentence) with respect to any Designated Senior
Indebtedness pursuant to which the maturity thereof may be accelerated
immediately without further notice (except such notice as may be required to
effect such acceleration) or upon the expiration of any applicable grace
periods, the Company may not pay the Notes for a period (a “Payment Blockage Period”) commencing upon
the receipt by the Trustee (with a copy to the Company) of written notice (a “Blockage Notice”) of such default from
the Representative of such Designated Senior Indebtedness specifying an
election to effect a Payment Blockage Period and ending on the earliest to
occur of the following events: 
(a) 179 days shall have elapsed since such receipt of such Blockage
Notice; (b) such Payment Blockage Period is terminated by written notice
to the Trustee (with a copy to the Company) from the Person or Persons who gave
such Blockage Notice, (c) the repayment in full of such Designated Senior
Indebtedness, or (d) the default giving rise to such Blockage Notice is no
longer continuing.


 


During any period in which payments are blocked
pursuant to the preceding paragraph, Holders of the Notes and the related Note
Guarantees will be entitled to all remedies with respect to the Notes and the
Note Guarantees, however, any amount


 


97






















 


received by Holders with
respect to the Notes or the Note Guarantees, including as a result of legal
action to enforce the Notes of the Note Guarantees, will be required to be
turned over to holders of Designated Senior Indebtedness.  Notwithstanding the provisions described in
the immediately preceding sentence (but subject to the provisions contained in
the first sentence of this Section 10.03 and in Section 10.02),
unless the holders of such Designated Senior Indebtedness or the Representative
of such holders shall have accelerated the maturity of such Designated Senior
Indebtedness, the Company may resume payments on the Notes after such Payment Blockage
Period, including any missed payments. 
In no event shall the total number of days during which any Payment
Blockage Period is in effect extend beyond the 179 days from the date of
receipt by the Trustee of the relevant Blockage Notice, and in no event shall
the total number of days during which any Payment Blockage Period is in effect
exceed 179 days during any 360 consecutive day period.  For purposes of this provision, no default
or event of default that existed or was continuing on the date of commencement
of any Payment Blockage Period with respect to the Designated Senior
Indebtedness initiating such Payment Blockage Period shall be, or be made, the
basis of the commencement of a subsequent Payment Blockage Period by the
Representative of such Designated Senior Indebtedness, unless such default or
event of default shall have been cured or waived for a period of not less than
90 consecutive days.


 


Section 10.04                          Acceleration of Notes.


 


If payment of the Notes is accelerated because of an
Event of Default, the Company will promptly notify holders of Senior
Indebtedness of the acceleration.


 


Section 10.05                          When Distribution Must Be Paid Over.


 


In the event that the Trustee or any Holder receives
any payment of any Obligations with respect to the Notes (other than Permitted
Junior Securities and payments made from any defeasance trust created pursuant
to Section 8.05 hereof) at a time when the Trustee or such Holder, as
applicable, has actual knowledge that such payment is prohibited by Section 10.03
hereof, such payment will be held by the Trustee or such Holder, in trust for
the benefit of, and will be paid forthwith over and delivered, upon written
request, to, the holders of Senior Indebtedness as their interests may appear
or their Representative under the agreement, indenture or other document (if
any) pursuant to which Senior Indebtedness may have been issued, as their
respective interests may appear, for application to the payment of all
Obligations with respect to Senior Indebtedness remaining unpaid to the extent
necessary to pay such Obligations in full in accordance with their terms, after
giving effect to any concurrent payment or distribution to or for the holders
of Senior Indebtedness.


 


With respect to the holders of Senior Indebtedness, the
Trustee undertakes to perform only those obligations on the part of the Trustee
as are specifically set forth in this Article 10, and no implied covenants or
obligations with respect to the holders of


 


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Senior Indebtedness will
be read into this Indenture against the Trustee.  The Trustee will not be deemed to owe any fiduciary duty to the
holders of Senior Indebtedness, and will not be liable to any such holder if
the Trustee pays over or distributes to or on behalf of Holders or the Company
or any other Person money or assets to which any holders of Senior Indebtedness
are then entitled by virtue of this Article 10, except if such payment is made
as a result of the willful misconduct or gross negligence of the Trustee.


 


Section 10.06                          Notice by Company.


 


The Company will promptly notify the Trustee and the
Paying Agent of any facts known to the Company that would cause a payment of
any Obligations with respect to the Notes to violate this Article 10, but failure
to give such notice will not affect the subordination of the Notes to the
Senior Indebtedness as provided in this Article 10.


 


Section 10.07                          Subrogation.


 


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


 


Section 10.08                          Relative Rights.


 


This Article 10 defines the relative rights of Holders
of Notes and holders of Senior Indebtedness. 
Nothing in this Indenture will:


 


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


 


(2)                                  affect
the relative rights of Holders of Notes and creditors of the Company other than
their rights in relation to holders of Senior Indebtedness; or


 


(3)                                  prevent
the Trustee or any Holder of Notes from exercising its available remedies upon
a Default or Event of Default, subject to the rights of holders and owners of
Senior Indebtedness to receive distributions and payments otherwise payable to
Holders of Notes.


 


If the Company fails because of this Article 10 to pay
principal of, premium or interest on, a Note on the due date, the failure is
still a Default.


 


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Section 10.09                          Subordination May Not Be Impaired by Company.


 


No right of any holder of Senior Indebtedness to
enforce the subordination of the Indebtedness evidenced by the Notes may be
impaired by any act or failure to act by the Company or any Holder or by the
failure of the Company or any Holder to comply with this Indenture.


 


Section 10.10                          Distribution or Notice to Representative.


 


Whenever a distribution is to be made or a notice
given to holders of Senior Indebtedness, the distribution may be made and the
notice given to their Representative.


 


Upon any payment or distribution of assets of the
Company referred to in this Article 10, the Trustee and the Holders of Notes
will be entitled to rely upon any order or decree made by any court of competent
jurisdiction or upon any certificate of such Representative or of the
liquidating trustee or agent or other Person making any distribution to the
Trustee or to the Holders of Notes for the purpose of ascertaining the Persons
entitled to participate in such distribution, the holders of the Senior
Indebtedness and other Indebtedness of the Company, the amount thereof or
payable thereon, the amount or amounts paid or distributed thereon and all
other facts pertinent thereto or to this Article 10.


 


Section 10.11                          Rights of Trustee and Paying Agent.


 


Notwithstanding the provisions of this Article 10 or
any other provision of this Indenture, the Trustee will not be charged with
knowledge of the existence of any facts that would prohibit the making of any
payment or distribution by the Trustee, and the Trustee and the Paying Agent
may continue to make payments on the Notes, unless the Trustee has received at
its Corporate Trust Office at least five Business Days prior to the date of
such payment written notice of facts that would cause the payment of any
Obligations with respect to the Notes to violate this Article 10.  Only the Company or a Representative may
give the notice.  Nothing in this
Article 10 will impair the claims of, or payments to, the Trustee under or
pursuant to Section 7.07 hereof.


 


The Trustee in its individual or any other capacity
may hold Senior Indebtedness with the same rights it would have if it were not
Trustee.  Any Agent may do the same with
like rights.


 


Section 10.12                          Authorization to Effect Subordination.


 


Each Holder of Notes, by such Holder’s acceptance
thereof, authorizes and directs the Trustee on such Holder’s behalf to take
such action as may be necessary or appropriate to effectuate the subordination
as provided in this Article 10, and appoints the Trustee to act as such
Holder’s attorney-in-fact for any and all such purposes.  If the


 


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Trustee does not file a
proper proof of claim or proof of debt in the form required in any proceeding
referred to in Section 6.09 hereof at least 30 days before the expiration
of the time to file such claim, the Representatives are hereby authorized to
file an appropriate claim for and on behalf of the Holders of the Notes.


 


Section 10.13                          Amendments.


 


The provisions of this Article 10 may not be amended
or modified without the written consent of the holders of all Senior
Indebtedness.  In addition, any
amendment to, or waiver of, the provisions of this Article 10 that adversely
affects the rights of the Holders of the Notes will require the consent of the
Holders of Notes then outstanding.


 


Section
10.14                          Reliance on Judicial Order or Certificate of
Liquidating Agent.


 


Upon any payment or distribution of assets of the
Company referred to in this Article, the Trustee, subject to the provisions of
Section 6.01, and the Holders of the Notes shall be entitled to
conclusively rely upon any order or decree entered by any court of competent
jurisdiction in which such solvency, bankruptcy, receivership, liquidation,
reorganization, dissolution, winding up or similar case or proceeding is
pending, or a certificate of the trustee in bankruptcy, liquidating trustee,
custodian, receiver, assignee for the benefit of creditors, agent or other
person making such payment or distribution, delivered to the Trustee or to the
Holders of Notes, for the purpose of ascertaining the persons entitled to
participate in such payment or distribution, the holders of Senior Indebtedness
and other indebtedness of the Company, the amount thereof or payable thereon,
the amount or amounts paid or distributed thereon and all other facts pertinent
thereto or to this Article.


 


Section 10.15                          Trustee Not Fiduciary for Holders of Senior
Indebtedness.


 


The Trustee shall not be deemed to owe any fiduciary
duty to the holders of Senior Indebtedness and shall not be liable to any such
holders if the Trustee shall in good faith mistakenly pay over or distribute to
Holders of Notes or to the Company or to any other person cash, property or
securities to which any holders of Senior Indebtedness shall be entitled by
virtue of this Article or otherwise. 
With respect to the holders of Senior Indebtedness, the Trustee
undertakes to perform or to observe only such of its covenants or obligations
as are specifically set forth in this Article and no implied covenants or
obligations with respect to holders of Senior Indebtedness shall be read into
this Indenture against the Trustee.


 


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ARTICLE 11

NOTE GUARANTEES


 


Section 11.01                          Guarantee.


 


(a)                                  Subject to this Article 11, each of
the Guarantors hereby, jointly and severally, unconditionally guarantees to
each Holder of a Note authenticated and delivered by the Trustee and to the
Trustee and its successors and assigns, irrespective of the validity and
enforceability of this Indenture, the Notes or the obligations of the Company
hereunder or thereunder, that:


 


(1)                                  the principal of, premium, if any,
and interest on, the Notes will be promptly paid in full when due, whether at
maturity, by acceleration, redemption or otherwise, and interest on the overdue
principal of and interest on the Notes, if any, if lawful, and all other
obligations of the Company to the Holders or the Trustee hereunder or
thereunder will be promptly paid in full or performed, all in accordance with
the terms hereof and thereof; and


 


(2)                                  in case of any extension of time of
payment or renewal of any Notes or any of such other obligations, that same
will be promptly paid in full when due or performed in accordance with the
terms of the extension or renewal, whether at stated maturity, by acceleration
or otherwise.


 


Failing payment when due of any amount so guaranteed
or any performance so guaranteed for whatever reason, the Guarantors will be
jointly and severally obligated to pay the same immediately.  Each Guarantor agrees that this is a
guarantee of payment and not a guarantee of collection.


 


(b)                                 The Guarantors hereby agree that
their obligations hereunder are unconditional, irrespective of the validity,
regularity or enforceability of the Notes or this Indenture, the absence of any
action to enforce the same, any waiver or consent by any Holder of the Notes
with respect to any provisions hereof or thereof, the recovery of any judgment
against the Company, any action to enforce the same or any other circumstance
which might otherwise constitute a legal or equitable discharge or defense of a
guarantor.  Each Guarantor hereby waives
diligence, presentment, demand of payment, filing of claims with a court in the
event of insolvency or bankruptcy of the Company, any right to require a
proceeding first against the Company, protest, notice and all demands
whatsoever and covenant that this Note Guarantee will not be discharged except
by complete performance of the obligations contained in the Notes and this
Indenture.


 


(c)                                  If any Holder or the Trustee is
required by any court or otherwise to return to the Company, the Guarantors or
any custodian, trustee, liquidator or other similar official acting in relation
to either the Company or the Guarantors, any amount paid by


 


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either to the
Trustee or such Holder, this Note Guarantee, to the extent theretofore
discharged, will be reinstated in full force and effect.


 


(d)                                 Each Guarantor agrees that it will
not be entitled to any right of subrogation in relation to the Holders in
respect of any obligations guaranteed hereby until payment in full of all
obligations guaranteed hereby.  Each
Guarantor further agrees that, as between the Guarantors, on the one hand, and
the Holders and the Trustee, on the other hand, (1) the maturity of the
obligations guaranteed hereby may be accelerated as provided in Article 6
hereof for the purposes of this Note Guarantee, notwithstanding any stay,
injunction or other prohibition preventing such acceleration in respect of the
obligations guaranteed hereby, and (2) in the event of any declaration of
acceleration of such obligations as provided in Article 6 hereof, such
obligations (whether or not due and payable) will forthwith become due and
payable by the Guarantors for the purpose of this Note Guarantee.  The Guarantors will have the right to seek
contribution from any non-paying Guarantor so long as the exercise of such
right does not impair the rights of the Holders under the Note Guarantee.


 


Section 11.02                          Subordination of
Note Guarantee.


 


The Obligations of each Guarantor under its Note
Guarantee pursuant to this Article 11 will be junior and subordinated to the
Senior Indebtedness of such Guarantor on the same basis as the Notes are junior
and subordinated to Senior Indebtedness of the Company.  For the purposes of the foregoing sentence,
the Trustee and the Holders will have the right to receive and/or retain
payments by any of the Guarantors only at such times as they may receive and/or
retain payments in respect of the Notes pursuant to this Indenture, including
Article 10 hereof.


 


Section 11.03                          Limitation on
Guarantor Liability.


 


Each Guarantor, and by its acceptance of Notes, each
Holder, hereby confirms that it is the intention of all such parties that the
Note Guarantee of such Guarantor not constitute a fraudulent transfer or
conveyance for purposes of Bankruptcy Law, the Uniform Fraudulent Conveyance
Act, the Uniform Fraudulent Transfer Act or any similar federal or state law to
the extent applicable to any Note Guarantee. 
To effectuate the foregoing intention, the Trustee, the Holders and the
Guarantors hereby irrevocably agree that the obligations of such Guarantor will
be limited to the maximum amount that will, after giving effect to such maximum
amount and all other contingent and fixed liabilities of such Guarantor that
are relevant under such laws, and after giving effect to any collections from,
rights to receive contribution from or payments made by or on behalf of any
other Guarantor in respect of the obligations of such other Guarantor under
this Article 11, result in the obligations of such Guarantor under its Note
Guarantee not constituting a fraudulent transfer or conveyance.


 


103






















 


Section 11.04                          Execution and
Delivery of Note Guarantee.


 


To evidence its Note Guarantee set forth in
Section 11.01 hereof, each Guarantor hereby agrees that a notation of such
Note Guarantee substantially in the form attached as Exhibit E hereto will be
endorsed by an Officer of such Guarantor on each Note authenticated and
delivered by the Trustee and that this Indenture will be executed on behalf of
such Guarantor by one of its Officers.


 


Each Guarantor hereby agrees that its Note Guarantee
set forth in Section 11.01 hereof will remain in full force and effect
notwithstanding any failure to endorse on each Note a notation of such Note
Guarantee.


 


If an Officer whose signature is on this Indenture or
on the Note Guarantee no longer holds that office at the time the Trustee
authenticates the Note on which a Note Guarantee is endorsed, the Note
Guarantee will be valid nevertheless.


 


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


 


In the event that the Company or any of its Restricted
Subsidiaries creates or acquires any Domestic Subsidiary after the date of this
Indenture, if required by Section 4.19 hereof, the Company will cause such
Domestic Subsidiary to comply with the provisions of Section 4.19 hereof
and this Article 11, to the extent applicable.


 


Section 11.05                          Guarantors May
Consolidate, etc., on Certain Terms.


 


Except as otherwise provided in Section 11.06
hereof, no Guarantor may sell or otherwise dispose of all or substantially all
of its assets to, or consolidate with or merge with or into (whether or not
such Guarantor is the surviving Person) another Person, other than the Company
or another Guarantor, unless:


 


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


 


(2)                                  either:


 


(a)                                  subject to Section 11.06
hereof, the Person acquiring the property in any such sale or disposition or
the Person formed by or surviving any such consolidation or merger
unconditionally assumes all the obligations of that Guarantor under this
Indenture and its Note Guarantee on the terms set forth herein or therein, pursuant
to a supplemental indenture in form and substance reasonably satisfactory to
the Trustee; or


 


104






















 


(b)                                 the Net Proceeds of such sale or
other disposition are applied in accordance with the applicable provisions of
this Indenture, including without limitation, Section 4.10 hereof.


 


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


 


Except as set forth in Articles 4 and 5 hereof, and
notwithstanding clauses 2(a) and (b) above, nothing contained in this Indenture
or in any of the Notes will prevent any consolidation or merger of a Guarantor
with or into the Company or another Guarantor, or will prevent any sale or
conveyance of the property of a Guarantor as an entirety or substantially as an
entirety to the Company or another Guarantor.


 


Section 11.06                          Releases.


 


(a)                                  In
the event of any sale or other disposition of all or substantially all of the
assets of any Guarantor, by way of merger, consolidation or otherwise, or a
sale or other disposition of all of the Capital Stock of any Guarantor, in each
case to a Person that is not (either before or after giving effect to such
transactions) the Company or a Restricted Subsidiary of the Company, then such
Guarantor (in the event of a sale or other disposition, by way of merger,
consolidation or otherwise, of all of the Capital Stock of such Guarantor) or
the corporation acquiring the property (in the event of a sale or other
disposition of all or substantially all of the assets of such Guarantor) will
be released and relieved of any obligations under its Note Guarantee; provided
that the Net Proceeds of such sale or other disposition are applied in
accordance with the applicable provisions of this Indenture, including without
limitation Section 4.10 hereof. 
Upon delivery by the Company to the Trustee of an Officers’ Certificate
and an Opinion of Counsel to the effect that such sale or other disposition was
made by the Company in accordance with the provisions of this Indenture,
including without limitation Section 4.10 hereof, the Trustee will execute
any documents reasonably required in order to evidence the release of any
Guarantor from its obligations under its Note Guarantee.


 


105






















 


(b)                                 Upon
designation of any Guarantor as an Unrestricted Subsidiary in accordance with
the terms of this Indenture, such Guarantor will be released and relieved of
any obligations under its Note Guarantee.


 


(c)                                  Upon
Legal Defeasance in accordance with Article 8 hereof or satisfaction and
discharge of this Indenture in accordance with Article 12 hereof, each
Guarantor will be released and relieved of any obligations under its Note
Guarantee.


 


(d)                                 If
such Guarantor no longer constitutes a Domestic Subsidiary.


 


Any Guarantor not released from its obligations under
its Note Guarantee as provided in this Section 11.05 will remain liable
for the full amount of principal of and interest and premium, if any, on the
Notes and for the other obligations of any Guarantor under this Indenture as
provided in this Article 11.


 


ARTICLE 12

SATISFACTION AND DISCHARGE


 


Section 12.01                          Satisfaction and Discharge.


 


This Indenture will be discharged and will cease to be
of further effect as to all Notes issued hereunder, when:


 


(1)                                  either:


 


(a)                                  all Notes that have been
authenticated, except lost, stolen or destroyed Notes that have been replaced
or paid and Notes for whose payment money has theretofore been deposited in
trust or segregated and held in trust by the Company or any Guarantor and
thereafter repaid to the Company or discharged from their trust, have been
delivered to the Trustee for cancellation; or


 


(b)                                 all Notes that have not been
delivered to the Trustee for cancellation have become due and payable by reason
of the mailing of a notice of redemption or otherwise or will become due and
payable within one year and the Company or any Guarantor has irrevocably
deposited or caused to be deposited with the Trustee as trust funds in trust
solely for the benefit of the Holders, cash in U.S. dollars, non-callable
Government Securities, or a combination thereof, in such amounts as will be
sufficient, without consideration of any reinvestment of interest, to pay and
discharge the entire Indebtedness on the Notes not delivered to the Trustee for
cancellation for principal, premium, if any, and accrued interest to the date
of maturity or redemption;


 


106






















 


(2)                                  no Default or Event of Default has
occurred and is 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) and the deposit will not result in a breach or violation of, or
constitute a default under, any other material instrument to which the Company
or any Guarantor is a party or by which the Company or any Guarantor is bound;


 


(3)                                  the Company or any Guarantor has
paid or caused to be paid all sums payable by it under this Indenture; and


 


(4)                                  the Company has delivered
irrevocable instructions to the Trustee under this Indenture to apply the
deposited money toward the payment of the Notes at maturity or on the
redemption date, as the case may be.


 


In addition, the Company must deliver an Officers’
Certificate and an Opinion of Counsel to the Trustee stating that all
conditions precedent to satisfaction and discharge have been satisfied.


 


Notwithstanding the satisfaction and discharge of this
Indenture, if money has been deposited with the Trustee pursuant to
subclause (b) of clause (1) of this Section 12.01, the
provisions of Sections 12.02 and 8.06 hereof will survive.  In addition, nothing in this
Section 12.01 will be deemed to discharge those provisions of
Section 7.07 hereof, that, by their terms, survive the satisfaction and
discharge of this Indenture.


 


Section 12.02                          Application of Trust Money.


 


Subject to the provisions of Section 8.06 hereof,
all money deposited with the Trustee pursuant to Section 12.01 hereof
shall be held in trust and applied by it, in accordance with the provisions of
the Notes and this Indenture, to the payment, either directly or through any
Paying Agent (including the Company acting as its own Paying Agent) as the
Trustee may determine, to the Persons entitled thereto, of the principal (and
premium, if any) and interest for whose payment such money has been deposited
with the Trustee; but such money need not be segregated from other funds except
to the extent required by law.


 


If the Trustee or Paying Agent is unable to apply any
money or Government Securities in accordance with Section 12.01 hereof by
reason of any legal proceeding or by reason of any order or judgment of any
court or governmental authority enjoining, restraining or otherwise prohibiting
such application, the Company’s and any Guarantor’s obligations under this
Indenture and the Notes shall be revived and reinstated as though no deposit
had occurred pursuant to Section 12.01 hereof; provided that if the Company
has made any payment of principal of, premium, if any, or interest on, any
Notes because of the reinstatement of its obligations, the Company shall be
subrogated to the rights of


 


107






















 


the Holders of such Notes
to receive such payment from the money or Government Securities held by the
Trustee or Paying Agent.


 


ARTICLE 13

MISCELLANEOUS


 


Section 13.01                          Trust Indenture Act Controls.


 


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


 


Section 13.02                          Notices.


 


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


 


If to the Company and/or any Guarantor:


 


B&G Foods, Inc.

Four Gatehall Drive, Suite 110

Parsippany, NJ  07054

Facsimile No.:  (973)401-6550

Attention:  Chief Financial Officer


 


With a copy to:

Dechert LLP

4000 Bell Atlantic Tower

1717 Arch Street

Philadelphia, PA  19103

Facsimile No.:  (215) 994-2222

Attention:  Christopher G. Karras, Esq.


 


If to the Trustee:


The Bank of New York


101 Barclay Street, Fl. 8W


New York, NY 
10286

Facsimile No.:  (212) 815-5707

Attention:  Corporate Trust
Administration


 


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


 


108






















 


All notices and communications (other than those sent
to Holders) will be deemed to have been duly given: at the time delivered by
hand, if personally delivered; five Business Days after being deposited in the
mail, postage prepaid, if mailed; when receipt acknowledged, if transmitted by
facsimile; and 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 will 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 will also be so mailed to any Person described in TIA
§ 313(c), to the extent required by the TIA.  Failure to mail a notice or communication to a Holder or any
defect in it will not affect its sufficiency with respect to other Holders.


 


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


 


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


 


Section 13.03                          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 Company, the Trustee, the
Registrar and anyone else shall have the protection of TIA § 312(c).


 


Section 13.04                          Certificate and Opinion as to Conditions Precedent.


 


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


 


(1)                                  an Officers’ Certificate in form
and substance reasonably satisfactory to the Trustee (which must include the
statements set forth in Section 13.05 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


 


(2)                                  an Opinion of Counsel in form and
substance reasonably satisfactory to the Trustee (which must include the
statements set forth in Section 13.05 hereof) stating that, in the opinion
of such counsel, all such conditions precedent and covenants have been
satisfied.


 


109






















 


Section 13.05                          Statements Required in Certificate or Opinion.


 


Each certificate or opinion with respect to compliance
with a condition or covenant provided for in this Indenture (other than a
certificate provided pursuant to TIA § 314(a)(4)) must comply with the
provisions of TIA § 314(e) and must include:


 


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


 


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


 


(3)                                  a statement that, in the opinion of
such Person, he 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


 


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


 


Section 13.06                          Rules by Trustee and Agents.


 


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


 


Section 13.07                          No Personal Liability of Directors, Officers, Employees and
Stockholders.


 


No past, present or future director, officer,
employee, direct or indirect incorporator, Affiliate, stockholder or
controlling Person, of the Company or any Guarantor, as such, or any successor
entity, will have any liability for any obligations of the Company or the
Guarantors under the Notes, this Indenture, the Note Guarantees or for any
claim based on, in respect of, or by reason of, such obligations or their
creation.  Each Holder of Notes by
accepting a Note waives and releases all such liability.  The waiver and release are part of the
consideration for issuance of the Notes. 
The waiver may not be effective to waive liabilities under the federal
securities laws.


 


Section 13.08                          Governing Law.


 


THE INTERNAL LAW OF THE STATE OF NEW YORK WILL GOVERN
AND BE USED TO CONSTRUE THIS INDENTURE, THE NOTES AND THE NOTE GUARANTEES
WITHOUT GIVING EFFECT TO APPLICABLE PRINCIPLES OF CONFLICTS OF LAW TO THE
EXTENT THAT THE APPLICATION OF THE LAWS OF ANOTHER JURISDICTION WOULD BE
REQUIRED THEREBY.


 


110






















 


Section 13.09                          No Adverse Interpretation of Other Agreements.


 


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


 


Section 13.10                          Successors.


 


All agreements of the Company in this Indenture and
the Notes will bind its successors.  All
agreements of the Trustee in this Indenture will bind its successors.  All agreements of each Guarantor in this
Indenture will bind its successors, except as otherwise provided in
Section 11.05 hereof.


 


Section 13.11                          Severability.


 


In case any provision in this Indenture or in the
Notes is invalid, illegal or unenforceable, the validity, legality and
enforceability of the remaining provisions will not in any way be affected or
impaired thereby.


 


Section 13.12                          Counterpart Originals.


 


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


 


Section 13.13                          Table of Contents, Headings, etc.


 


The Table of Contents, Cross-Reference Table 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 will in no way modify or restrict any of the terms or provisions
hereof.


 


Section
13.14                          Waiver of Jury Trial.


 


EACH OF THE COMPANY AND THE TRUSTEE HEREBY IRREVOCABLY
WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY AND ALL RIGHT TO
TRIAL BY JURY IN ANY LEGAL PROCEEDING ARISING OUT OF OR RELATING TO THIS
INDENTURE, THE NOTES OR THE TRANSACTION CONTEMPLATED HEREBY.


 


[Signatures on following page]


 


111






















 


SIGNATURES


 


Dated as of October 14,
2004


 


	
   

  	
  B&G FOODS,
  INC. (F/K/A B&G FOODS

  HOLDINGS CORP.)

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Robert C.
  Cantwell

  	
   

  
	
   

  	
   

  	
  Name: Robert C.
  Cantwell

  	
   

  
	
   

  	
   

  	
  Title: Executive
  Vice President of Finance

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  BGH HOLDINGS,
  INC.

  	
   

  
	
   

  	
  BLOCH &
  GUGGENHEIMER, INC.

  	
   

  
	
   

  	
  HERITAGE
  ACQUISITION CORP.

  	
   

  
	
   

  	
  MAPLE GROVE
  FARMS OF VERMONT, INC.

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  



 






















 


	
   

  	
  ORTEGA HOLDINGS
  INC.

  	
   

  
	
   

  	
  POLANER, INC.

  	
   

  
	
   

  	
  TRAPPEY’S FINE
  FOODS, INC.

  	
   

  
	
   

  	
  WILLIAM
  UNDERWOOD COMPANY

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Robert C.
  Cantwell

  	
   

  
	
   

  	
   

  	
  Name: Robert C.
  Cantwell

  	
   

  
	
   

  	
   

  	
  Title:
  Authorized Officer

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  THE BANK OF NEW
  YORK

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Robert A.
  Massimillo

  	
   

  
	
   

  	
   

  	
  Name: Robert A.
  Massimillo

  	
   

  
	
   

  	
   

  	
  Title: Vice
  President

  	
   

  



 


2






















 


EXHIBIT A


 


[Face of Note]


 


CUSIP/CINS
                


 


12.0% Senior Subordinated Notes due 2016


 


	
  No. 

  	
  $                

  



 


B&G FOODS, INC.


 


(F/KA/ B&G FOODS HOLDINGS CORP.)


 


promises to pay to


 


or registered assigns,


 


the principal sum of
                                                                                                                                                                   
DOLLARS

on                      ,
2016.


 


Interest Payment
Dates:  January 30, April 30, July 30
and October 30.


 


Record Dates:  December 31, March 31, June 30 and September
30.


 


Dated: 
                              ,
200


 


	
   

  	
  B&G FOODS,
  INC.

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
   

  	
  Name:

  	
   

  
	
   

  	
   

  	
  Title:

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  This is one of the Notes
  referred to

  in the within-mentioned Indenture:

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  THE
  BANK OF NEW YORK,

  as Trustee

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  By:

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Authorized Signatory

  	
   

  	
   

  	
   

  	
   

  



 


A-1






















 


[Back of Note]

12.0% Senior Subordinated Notes due 2016


 


[Insert the Global Note Legend, if
applicable pursuant to the provisions of the Indenture]


 


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


 


(1)                                  INTEREST.  B&G Foods, Inc., a Delaware corporation
(the “Company”), promises to pay interest on the principal amount
of this Note at 12.0 % per annum from October 14, 2004 until maturity.  The Company will pay interest quarterly in
arrears on January 30, April 30, July 30 and October 30 of each year, or
if any such day is not a Business Day, on the next succeeding Business Day
(each, an “Interest Payment Date”).  Interest on the Notes will accrue from the
most recent date to which interest has been paid on the Initial Notes or, if no
interest has been paid, from the date of issuance of the Initial Notes; provided
that if there is no existing Default in the payment of interest, and if this
Note is authenticated between a record date referred to on the face hereof and
the next succeeding Interest Payment Date, interest shall accrue from such next
succeeding Interest Payment Date; provided further that the first Interest
Payment Date shall be January 30, 2005. 
The Company will pay interest (including post-petition interest in any
proceeding under any Bankruptcy Law) on overdue principal and premium, if any,
from time to time on demand at a rate that is 1% per annum in excess of the
rate then in effect to the extent lawful; it will pay interest (including
post-petition interest in any proceeding under any Bankruptcy Law) on overdue
installments of interest (without regard to any applicable grace periods) from
time to time on demand at the same rate to the extent lawful.  Interest will be computed on the basis of a
360-day year of twelve 30-day months.


 


(2)                                  METHOD OF
PAYMENT.  The Company will
pay interest on the Notes (except defaulted interest) to the Persons who are
registered Holders of Notes at the close of business on December 31, March 31,
June 30 and September 30 next preceding the Interest Payment Date,
even if such Notes are canceled after such record date and on or before such
Interest Payment Date, except as provided in Section 2.12 of the Indenture
with respect to defaulted interest.  The
Notes will be payable as to principal, premium and, if any, interest at the
office or agency of the Company maintained for such purpose within or without
the City and State of New York, or, at the option of the Company, payment of
interest may be made by check mailed to the Holders at their addresses set
forth in the register of Holders; provided that payment by wire transfer of
immediately available funds will be required with respect to principal of and
interest and premium, if any, on all Global Notes and all other Notes the
Holders of which will have provided wire transfer instructions to the Company
or


 


A-2






















 


the Paying Agent. 
Such payment will 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,
The Bank of New York, the Trustee under the Indenture, will act as Paying Agent
and Registrar.  The Company may change
any Paying Agent or Registrar without notice to any Holder.  The Company or any of its Subsidiaries may
act in any such capacity.


 


(4)                                  INDENTURE.  The Company issued the Notes under an
Indenture dated as of October 14, 2004 (the “Indenture”) among the Company, the
Guarantors 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 TIA.  The
Notes are subject to all such terms, and Holders are referred to the Indenture
and such Act for a statement of such terms. 
To the extent any provision of this Note conflicts with the express
provisions of the Indenture, the provisions of the Indenture shall govern and
be controlling.  The Notes are unsecured
obligations of the Company.  The
Indenture does not limit the aggregate principal amount of Notes that may be
issued thereunder.


 


(5)                                  OPTIONAL REDEMPTION.  On and after October 30, 2009, the
Company may redeem all or a part of the Notes upon not less than 30 nor more
than 60 days notice, at the redemption prices (expressed as percentages of
principal amount) set forth below plus accrued and unpaid interest on the Notes
redeemed, to the applicable redemption date, if redeemed during the
twelve-month period beginning on October 30 of the years indicated below,
subject to the rights of Holders of Notes on the relevant record date to
receive interest on the relevant interest payment date: 


 


	
  Year

  	
   

  	
  Percentage

  	
   

  
	
  2009

  	
   

  	
  106.000

  	
  %

  
	
  2010

  	
   

  	
  104.000

  	
  %

  
	
  2011

  	
   

  	
  102.000

  	
  %

  
	
  2012 and thereafter

  	
   

  	
  100.000

  	
  %

  



 


Unless the Company defaults in the payment of the
redemption price, interest will cease to accrue on the Notes or portions
thereof called for redemption on the applicable redemption date.


 


The Notes will not be redeemable at the Company’s
option prior to October 30, 2009.


 


(6)                                  MANDATORY REDEMPTION.  The Company is not be required to make
mandatory redemption or sinking fund payments with respect to the Notes.


 


A-3






















 


(7)                                  REPURCHASE AT THE OPTION OF HOLDER.


 


(a)                                  If
there is a Change of Control, the Company will be required to make an offer (a “Change of Control Offer”) to each Holder to repurchase all or any part
(equal to $7.15 or an integral multiple thereof) of each Holder’s Notes at a
purchase price in cash equal to 101% of the aggregate principal amount thereof plus accrued and unpaid interest thereon
to the date of purchase, subject to the rights of Holders on the relevant
record date to receive interest due on the relevant interest payment date (the “Change of Control Payment”).  No
earlier than ten and no later than 20 days following any Change of Control, the
Company will mail a notice to each Holder setting forth the procedures
governing the Change of Control Offer as required by the Indenture.


 


(b)                                 If
the Company or a Restricted Subsidiary of the Company consummates any Asset
Sales, within five days of each date on which the aggregate amount of Excess
Proceeds exceeds $10.0 million, the Company will commence an offer to all
Holders of Notes and all holders of other pari
passu Indebtedness containing provisions similar to those set forth
in the Indenture with respect to offers to purchase or redeem with the proceeds
of sales of assets (an “Asset Sale
Offer”) pursuant to
Section 3.09 of the Indenture to purchase the maximum principal amount of
Notes (including any Additional Notes) and such other pari passu Indebtedness that
may be purchased out of the Excess Proceeds at an offer price in cash in an
amount equal to 100% of the principal amount thereof plus accrued and unpaid interest thereon to the date of
purchase in accordance with the procedures set forth in the Indenture.  To the extent that the aggregate amount of
Notes (including any Additional Notes) and other pari passu Indebtedness
tendered pursuant to an Asset Sale Offer is less than the Excess Proceeds, the
Company (or such Restricted Subsidiary) may use such deficiency for any purpose
not otherwise prohibited by the Indenture. 
If the aggregate principal amount of Notes and other pari passu
Indebtedness tendered into such Asset Sale Offer exceeds the amount of Excess
Proceeds, the Trustee shall select the Notes and such other pari passu Indebtedness to be purchased on
a pro rata basis.  Holders of Notes that are the subject of an
offer to purchase will receive an Asset Sale Offer from the Company prior to
any related purchase date and may elect to have such Notes purchased by
completing the form entitled “Option of
Holder to Elect Purchase”
attached to the Notes.


 


(8)                                  NOTICE OF
REDEMPTION.  Notice of
redemption will be mailed at least 30 days but not more than 60 days before the
redemption date to each Holder whose Notes are to be redeemed at its registered
address, except that redemption notices may be mailed more than 60 days prior
to a redemption date if the notice is issued in connection with a defeasance of
the Notes or a satisfaction or discharge of the Indenture.  Notes in denominations larger than $7.15 may
be


 


A-4






















 


redeemed in part but only in whole multiples of $7.15,
unless all of the Notes held by a Holder are to be redeemed.


 


(9)                                  DENOMINATIONS,
TRANSFER, EXCHANGE.  The
Notes are in registered form without coupons in denominations of $7.15 and
integral multiples of $7.15.  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 Company may require a Holder to pay
any taxes and fees required by law or permitted by the Indenture.  The Company 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, the Company 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 a record date and the
corresponding Interest Payment Date.


 


(10)                            PERSONS
DEEMED OWNERS.  The
registered Holder of a Note may be treated as its owner for all purposes.


 


(11)                            AMENDMENT,
SUPPLEMENT AND WAIVER. 
Subject to certain exceptions, the Indenture or the Notes or the Note
Guarantees may be amended or supplemented with the consent of the Holders of at
least a majority in aggregate principal amount of the then outstanding Notes
including Additional Notes, if any, voting as a single class, and any existing
Default or Event or Default or compliance with any provision of the Indenture
or the Notes or the Note Guarantees may be waived with the consent of the
Holders of a majority in aggregate principal amount of the then outstanding
Notes including Additional Notes, if any, voting as a single class.  Without the consent of any Holder of a Note,
the Indenture or the Notes or the Note Guarantees may be amended or
supplemented to cure any ambiguity, omission, defect or inconsistency, to
provide for uncertificated Notes in addition to or in place of certificated
Notes, to provide for the assumption of the Company’s or a Guarantor’s
obligations to Holders of Notes and Note Guarantees in case of a merger or
consolidation, to make any change that would provide any additional rights or
benefits to the Holders of Notes or that does not adversely affect the legal
rights under the Indenture of any such Holder, to comply with the requirements
of the SEC in order to effect or maintain the qualification of the Indenture
under the TIA, to conform the text of the Indenture, or the Notes to any
provision of the “Description of
Senior Subordinated Notes”
section of the Company’s Prospectus dated October 7, 2004, relating to the
initial offering of the Notes, to the extent that such provision in that “Description of Senior Subordinated Notes” was intended to be a verbatim recitation
of a provision of the Indenture, the Note Guarantees or the Notes, to provide
for or confirm the issuance of Additional Notes in accordance with the


 


A-5






















 


limitations set forth in the Indenture or to allow any
Guarantor to execute a supplemental indenture to the Indenture and/or a Note
Guarantee with respect to the Notes.


 


(12)                            DEFAULTS AND
REMEDIES.  Events of Default
include:  (i) default for 30 days
in the payment when due of interest on the Notes; (ii) default in the
payment when due of the principal of, or premium, if any, on, the Notes when
the same becomes due and payable at maturity, upon redemption (including in
connection with an offer to purchase) or otherwise; (iii) failure by the
Company or any of its Restricted Subsidiaries to comply with Section 5.01
of the Indenture; (iv) failure by the Company or any of its Restricted
Subsidiaries for 30 days to comply with Sections 4.10 and 4.15 of the
Indenture; (v) failure by the Company or any of its Restricted Subsidiaries
for 60 days after notice to the Company by the Trustee or the Holders of at
least 25% in aggregate principal amount of the Notes then outstanding voting as
a single class to comply with any of the other agreements in the Indenture or
the Notes; (vi) default under certain other agreements relating to
Indebtedness of the Company which default results in the acceleration of such
Indebtedness prior to its express maturity; (vii) certain final judgments
for the payment of money that remain undischarged for a period of 60 days;
(viii) certain events of bankruptcy or insolvency with respect to the
Company or any of its Restricted Subsidiaries that is a Significant Subsidiary
or any group of Restricted Subsidiaries that, taken together, would constitute
a Significant Subsidiary; (ix) payment by the Company of dividends on its
common stock during the continuance of an Event of Default or pursuant to the
second clause (1) of paragraph (a) of Section 4.07 of the Indenture at a
time when such payment was not permitted pursuant to such section and
(x) except as permitted by the Indenture, any Note Guarantee is held in
any judicial proceeding to be unenforceable or invalid or ceases for any reason
to be in full force and effect, or any Guarantor, or any Person acting on its
behalf denies or disaffirms its obligations under such Guarantor’s Note
Guarantee.  If any Event of Default
occurs and is continuing, the Trustee or the Holders of at least 25% in
aggregate principal amount of the then outstanding Notes may declare all the
Notes to be due and payable immediately. 
Notwithstanding the foregoing, in the case of an Event of Default
arising from certain events of bankruptcy or insolvency, all outstanding Notes
will become due and payable immediately without further action or notice.  Holders may not enforce the Indenture or the
Notes except as provided in the Indenture. 
Subject to certain limitations, Holders of a majority in aggregate principal
amount of the then outstanding Notes may direct the Trustee in its exercise of
any trust or power.  The Trustee may
withhold from Holders of the Notes notice of any continuing Default or Event of
Default (except a Default or Event of Default relating to the payment of
principal or interest or premium, if any) if it determines that withholding
notice is in their interest.  The
Holders of a majority in aggregate principal amount of the then outstanding
Notes by notice to


 


A-6






















 


the Trustee may, on behalf of the Holders of all of
the Notes, rescind an acceleration or waive any existing Default or Event of
Default and its consequences under the Indenture except a continuing Default or
Event of Default in the payment of the principal of, premium, if any, or
interest on, the Notes.  The Company is
required to deliver to the Trustee annually a statement regarding compliance
with the Indenture, and the Company is required, upon becoming aware of any
Default or Event of Default, to deliver to the Trustee a statement specifying
such Default or Event of Default.


 


(13)                            SUBORDINATION. 
Payment of principal, interest and premium, if any, on the
Notes is subordinated to the prior payment of Senior Indebtedness on the terms
provided in the Indenture.


 


(14)                            SUBSEQUENT ISSUANCE. 
The Company may only issue Additional Notes in accordance
with Section 4.21 of the Indenture.


 


The Company agrees, and by purchasing the Notes each
Holder and each owner of a beneficial interest in a Global Note shall be deemed
to have agreed, that, upon the issuance by the Company of any Additional Notes,
if the Company determines that such Additional Notes should be assigned a
different CUSIP number than the CUSIP number assigned to the Initial Notes,
then immediately following such issuance (and immediately following any issuance
of Additional Notes thereafter) a portion of each such Holder’s or beneficial
owner’s Initial Notes and/or Additional Notes, as applicable, or beneficial
ownership interest therein, will automatically, without any action by such
Holder or beneficial owner, be exchanged (each, an “Automatic Exchange”) for a portion of each other Holder’s
Initial Notes and/or Additional Notes or each other beneficial owner’s
beneficial interest in the Initial Notes and/or Additional Notes, as
applicable, such that each Holder and owner of a beneficial interest in a
Global Note will hold Notes or beneficial interests in the Global Notes of each
issuance in the same proportion as each other Holder and owner of beneficial
interests in the Global Notes.  The
aggregate stated principal amount of Notes owned by each Holder and owner of a
beneficial interest in a Global Note will not change as a result of the
Automatic Exchange.  Immediately
following the Automatic Exchange, the Company and the Trustee will instruct the
Depository to facilitate the combination of the Notes issued prior to the date
of issuance of such Additional Notes and such Additional Notes into inseparable
units (“Note Units”) in
accordance with the procedures of the Depository.  The Note Units will be assigned a new CUSIP number, and the
transfers and exchanges of beneficial interests in the Note Units will be
effected through the Depository.


 


At least ten (10) business days prior to the closing
of the issuance of Additional Notes that will result in an Automatic Exchange,
the Company shall notify the Trustee in writing of its intention to consummate
such subsequent


 


A-7






















 


issuance and shall instruct the Trustee and Depository
to take any action necessary to effect the Automatic Exchange.  Such notice may be revoked at any time prior
to the date fixed for such Automatic Exchange.


 


The Company agrees, and by acceptance of beneficial
ownership in the Notes each beneficial owner of the Notes shall be deemed to
have agreed, that (1) the Company will report any “original issue discount” (as determined for U.S. federal income
tax purposes) associated with the Initial Notes and Additional Notes among all
beneficial owners in proportion to their ownership of the aggregate principal
amount of Notes and (2) each beneficial owner of the Notes shall report
such original issue discount in this manner and shall not take an inconsistent
position for any applicable tax purpose.


 


(15)                            TRUSTEE
DEALINGS WITH COMPANY.  The
Trustee, in its individual or any other capacity, may make loans to, accept
deposits from, and perform services for the Company or its Affiliates, and may
otherwise deal with the Company or its Affiliates, as if it were not the
Trustee.


 


(16)                            NO RECOURSE
AGAINST OTHERS.  No past,
present or future director, officer, employee, direct or indirect incorporator,
Affiliate, stockholder or controlling Person, of the Company or any Guarantor,
as such, or any successor entity, will have any liability for any obligations
of the Company or the Guarantors under the Notes, this Indenture, the Note
Guarantees or for any claim based on, in respect of, or by reason of, such
obligations or their creation.  Each
Holder of Notes by accepting a Note waives and releases all such
liability.  The waiver and release are
part of the consideration for issuance of the Notes.  The waiver may not be effective to waive liabilities under the
federal securities laws.


 


(17)                            AUTHENTICATION.  This Note will not be valid until
authenticated by the manual signature of the Trustee or an authenticating
agent.


 


(18)                            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).


 


(19)                            CUSIP
NUMBERS.  Pursuant to a
recommendation promulgated by the Committee on Uniform Security Identification
Procedures, the Company has caused CUSIP numbers to be printed on the 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.


 


A-8






















 


(20)                            TAX
TREATMENT.  By acceptance of
a beneficial ownership interest in the Notes, each beneficial owner of Notes
will be deemed to have agreed (1) to treat itself as owner of the Notes
for all purposes, including the preparation and filing of the United States
federal, state, local or foreign tax return, report, or other information; (2) to
treat the Notes as indebtedness for all tax purposes and (3) if such
beneficial owner’s Notes are represented by EISs, to treat the acquisition of
an EIS as the acquisition of the Notes and Class A Common Stock which are
represented by the EIS and to allocate the purchase price of the EIS between
the Notes and the Class A Common Stock in the amounts of $7.15 and $7.85
respectively.


 


(21)                            GOVERNING
LAW.  THE INTERNAL LAW OF THE
STATE OF NEW YORK WILL GOVERN AND BE USED TO CONSTRUE THE INDENTURE, THIS NOTE
AND THE NOTE GUARANTEES WITHOUT GIVING EFFECT TO APPLICABLE PRINCIPLES OF
CONFLICTS OF LAW TO THE EXTENT THAT THE APPLICATION OF THE LAWS OF ANOTHER
JURISDICTION WOULD BE REQUIRED THEREBY.


 


The Company 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:


 


B&G Foods, Inc.  (f/k/a B&G Foods Holdings Corp.)


Four Gatehall Drive, Suite
110


Parsippany, NJ  07054


Attention:  Chief Financial Officer


 


A-9






















 


ASSIGNMENT FORM


 


To assign this Note, fill in the form below:


 


(I) or (we) assign and
transfer this Note to:


(Insert assignee’s legal
name)


 


 


 


(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 Company.  The agent may
substitute another to act for him.


 


	
  Date:

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
  Your Signature:

  	
   

  
	
   

  	
   

  	
   

  	
  (Sign exactly as your
  name appears on the face of this Note)

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  
	
  Signature Guarantee*:

  	
   

  	
   

  
							



 












*                 Participant in a recognized
Signature Guarantee Medallion Program (or other signature guarantor acceptable
to the Trustee).


 


A-10






















 


OPTION OF HOLDER TO ELECT PURCHASE


 


If you want to elect to have this Note purchased by
the Company pursuant to Section 4.10 or 4.15 of the Indenture, check the
appropriate box below:


 




	
  Section 4.10

  	
  Section 4.15

  






 


If you want to elect to have only part of the Note
purchased by the Company pursuant to Section 4.10 or Section 4.15 of
the Indenture, state the amount you elect to have purchased:


 


$                    


 


	
  Date:

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
  Your Signature:

  	
   

  
	
   

  	
   

  	
   

  	
  (Sign exactly as your
  name appears on the face of this Note)

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
  Tax Identification No.:

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  
	
  Signature Guarantee*:

  	
   

  	
   

  
								



 












*                 Participant in a recognized
Signature Guarantee Medallion Program (or other signature guarantor acceptable
to the Trustee).


 


A-11






















 


SCHEDULE OF EXCHANGES OF INTERESTS IN THE
GLOBAL NOTE*


 


The following exchanges of a part of this Global Note
for an interest in another Global Note or for a Definitive Note, or exchanges
of a part of another Global Note or Definitive Note for an interest in this
Global Note, have been made:


 


	
  Date of Exchange

  	
   

  	
  Amount of

  decrease in

  Principal Amount

  at maturity of

  this Global Note

  	
   

  	
  Amount of

  increase in

  Principal Amount

  at maturity of

  this Global Note

  	
   

  	
  Principal Amount

  at maturity of this

  Global Note

  following such

  decrease

  (or increase)

  	
   

  	
  Signature of

  authorized officer

  of Trustee or

  Custodian

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  



 












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


 


A-12






















 


EXHIBIT B


 


FORM OF NOTATION OF GUARANTEE


 


For value received, each Guarantor (which term
includes any successor Person under the Indenture) has, jointly and severally,
unconditionally guaranteed, to the extent set forth in the Indenture and
subject to the provisions in the Indenture dated as of
                                ,
2004 (the “Indenture”) among B&G Foods, Inc., (the “Company”),
the Guarantors party thereto and
                                                ,
as trustee (the “Trustee”), (a) the due and
punctual payment of the principal of, premium and Liquidated Damages, if any,
and interest on, the Notes, whether at maturity, by acceleration, redemption or
otherwise, the due and punctual payment of interest on overdue principal of and
interest on the Notes, if any, if lawful, and the due and punctual performance
of all other obligations of the Company to the Holders or the Trustee all in
accordance with the terms of the Indenture and (b) in case of any
extension of time of payment or renewal of any Notes or any of such other obligations,
that the same will be promptly paid in full when due or performed in accordance
with the terms of the extension or renewal, whether at stated maturity, by
acceleration or otherwise.  The
obligations of the Guarantors to the Holders of Notes and to the Trustee
pursuant to the Note Guarantee and the Indenture are expressly set forth in
Article 10 of the Indenture and reference is hereby made to the Indenture for
the precise terms of the Note Guarantee.


 


Capitalized terms used but not defined herein have the
meanings given to them in the Indenture.


 


 


	
   

  	
  [NAME OF
  GUARANTOR(S)]

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  



 


B-1






















 


EXHIBIT C


 


FORM OF SUPPLEMENTAL INDENTURE

TO BE DELIVERED BY SUBSEQUENT GUARANTORS


 


SUPPLEMENTAL INDENTURE (this “Supplemental Indenture”), dated as of
                            ,
200   , among                                   
(the “Guaranteeing Subsidiary”), a subsidiary of
B&G Foods, Inc. (or its permitted successor), a Delaware corporation (the “Company”),
the Company, the other Guarantors (as defined in the Indenture referred to
herein) and The Bank of New York, as trustee under the Indenture referred to
below (the “Trustee”).


 


W I T N E S S E T H


 


WHEREAS, the Company has heretofore executed and
delivered to the Trustee an indenture (the “Indenture”), dated as of
                      ,
2004 providing for the issuance of      % Senior
Subordinated Notes due 2016 (the “Notes”);


 


WHEREAS, the Indenture provides that under certain
circumstances the Guaranteeing Subsidiary shall execute and deliver to the
Trustee a supplemental indenture pursuant to which the Guaranteeing Subsidiary
shall unconditionally guarantee all of the Company’s Obligations under the
Notes and the Indenture on the terms and conditions set forth herein (the “Note Guarantee”);
and


 


WHEREAS, pursuant to Section 9.01 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.                                       AGREEMENT
TO GUARANTEE.  The Guaranteeing
Subsidiary hereby agrees to provide an unconditional Guarantee on the terms and
subject to the conditions set forth in the Note Guarantee and in the Indenture
including but not limited to Article 10 thereof.


 


3.                                       NO
RECOURSE AGAINST OTHERS.  No past,
present or future director, officer, employee, incorporator, stockholder or
agent of the Guaranteeing Subsidiary, as such, shall have any liability for any
obligations of the Company or any Guaranteeing Subsidiary under the Notes, any
Note Guarantees, the Indenture or this Supplemental Indenture or for any claim
based on, in respect of, or by reason of, such obligations or their
creation.  Each Holder of the Notes by
accepting a Note waives and releases all such liability.  The waiver and release are part of the
consideration for issuance of the Notes.


 


C-1






















 


Such waiver may not be
effective to waive liabilities under the federal securities laws and it is the
view of the SEC that such a waiver is against public policy.


 


4.                                       NEW
YORK LAW TO GOVERN.  THE INTERNAL LAW OF
THE STATE OF NEW YORK SHALL GOVERN AND BE USED TO CONSTRUE THIS SUPPLEMENTAL
INDENTURE WITHOUT GIVING EFFECT TO APPLICABLE PRINCIPLES OF CONFLICTS OF LAW TO
THE EXTENT THAT THE APPLICATION OF THE LAWS OF ANOTHER JURISDICTION WOULD BE
REQUIRED THEREBY.


 


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.


 


7.                                       THE
TRUSTEE.  The Trustee shall not be
responsible in any manner whatsoever for or in respect of the validity or
sufficiency of this Supplemental Indenture or for or in respect of the recitals
contained herein, all of which recitals are made solely by the Guaranteeing
Subsidiary and the Company.


 


C-2






















 


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.


 


Dated: 
                        ,
20     


 


	
   

  	
  [GUARANTEEING
  SUBSIDIARY]

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
   

  	
  Name:

  	
   

  
	
   

  	
   

  	
  Title:

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  B&G FOODS,
  INC.

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
   

  	
  Name:

  	
   

  
	
   

  	
   

  	
  Title:

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  [EXISTING
  GUARANTORS]

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
   

  	
  Name:

  	
   

  
	
   

  	
   

  	
  Title:

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  [THE BANK OF NEW
  YORK],

  as Trustee

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
   

  	
  Authorized
  Signatory

  	
   

  



 


C-3