Exhibit 4.3


 


EXECUTION
COPY


 




 





 










 


B&G FOODS, INC.


 


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


 


AND EACH OF THE GUARANTORS PARTY HERETO


 


8.0% SENIOR NOTES DUE 2011


 










 


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

  	
  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.

  	
   

  
	
   

  	
   

  	
   

  
	
  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.

  	
   

  



 


ii





















 


	
  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

  	
  No Amendment to Subordination Provisions.

  	
   

  
	
  Section 4.17

  	
  Limitation on Sale and Leaseback
  Transactions.

  	
   

  
	
  Section 4.18

  	
  Payments for Consent.

  	
   

  
	
  Section 4.19

  	
  Additional Note Guarantees.

  	
   

  
	
  Section 4.20

  	
  Designation of Restricted and Unrestricted
  Subsidiaries.

  	
   

  
	
   

  	
   

  	
   

  
	
  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.

  	
   

  
	
  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.

  	
   

  



 


iii





















 


	
  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

  	
   

  
	
  NOTE
  GUARANTEES

  	
   

  
	
   

  	
   

  	
   

  
	
  Section 10.01

  	
  Guarantee.

  	
   

  
	
  Section 10.02

  	
  Limitation on Guarantor Liability.

  	
   

  
	
  Section 10.03

  	
  Execution and Delivery of Note Guarantee.

  	
   

  
	
  Section 10.04

  	
  Guarantors May Consolidate, etc., on
  Certain Terms.

  	
   

  
	
  Section 10.05

  	
  Releases.

  	
   

  
	
   

  	
   

  	
   

  
	
  ARTICLE
  11

  	
   

  
	
  SATISFACTION AND DISCHARGE

  	
   

  
	
   

  	
   

  	
   

  
	
  Section 11.01

  	
  Satisfaction and Discharge.

  	
   

  
	
  Section 11.02

  	
  Application of Trust Money.

  	
   

  
	
   

  	
   

  	
   

  
	
  ARTICLE
  12

  	
   

  
	
  MISCELLANEOUS

  	
   

  
	
   

  	
   

  	
   

  
	
  Section 12.01

  	
  Trust Indenture Act Controls.

  	
   

  
	
  Section 12.02

  	
  Notices.

  	
   

  
	
  Section 12.03

  	
  Communication by Holders of Notes with
  Other Holders of Notes.

  	
   

  
	
  Section 12.04

  	
  Certificate and Opinion as to Conditions
  Precedent.

  	
   

  
	
  Section 12.05

  	
  Statements Required in Certificate or
  Opinion.

  	
   

  
	
  Section 12.06

  	
  Rules by Trustee and Agents.

  	
   

  
	
  Section 12.07

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

  	
   

  
	
  Section 12.08

  	
  Governing Law.

  	
   

  
	
  Section 12.09

  	
  No Adverse Interpretation of Other
  Agreements.

  	
   

  
	
  Section 12.10

  	
  Successors.

  	
   

  
	
  Section 12.11

  	
  Severability.

  	
   

  
	
  Section 12.12

  	
  Counterpart Originals.

  	
   

  
	
  Section 12.13

  	
  Table of Contents, Headings, etc.

  	
   

  
	
  Section 12.14

  	
  Waiver of Jury Trial.

  	
   

  
	
   

  	
   

  	
   

  
	
  EXHIBITS

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Exhibit A

  	
  FORM OF NOTE

  	
   

  
	
  Exhibit
  B

  	
  FORM
  OF NOTATION OF GUARANTEE

  	
   

  
	
  Exhibit
  C

  	
  FORM
  OF SUPPLEMENTAL INDENTURE

  	
   

  



 


iv





















 


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  8.0%
Senior Notes due 2011 (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


 


1





















 


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 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.


 


2





















 


“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:


 


(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.


 


3





















 


“Cash Equivalents” means:


 


(1) United States dollars and
Canadian dollars;


 


(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;


 


(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.


 


“Clearstream” means Clearstream
Banking, S.A.


 


 “Company”  means B&G Foods, Inc. (f/k/a B&G
Foods Holdings Corp.) and any and all successors thereto.


 


4





















 


“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 including, without limitation,
any Mark-to-Market Adjustment) 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) of such Person 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


 


5





















 


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.


 


“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 12.02 hereof or such
other address as to which the Trustee may give notice to the Company.


 


“Credit Agreement” means that
certain Credit Agreement, to be 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 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


 


6





















 


all successors thereto
appointed as depositary hereunder and having become such pursuant to the
applicable provision of this Indenture.


 


“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 Senior Subordinated Notes and
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.


 


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


 


“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


 


7





















 


(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 3.09 hereof and (c) through a
refinancing involving the incurrence of new long-term Indebtedness.


 


“Existing Indebtedness” means
Indebtedness of the Company and its Restricted Subsidiaries (other than
Indebtedness under the Credit Agreement and the Senior Subordinated 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).


 


“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;


 


8





















 


(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 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 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.


 


9





















 


“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:


 


(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.


 


10





















 


 “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;


 


(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 equal 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
$240,000,000 aggregate principal amount of Notes issued under this Indenture 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


 


11





















 


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’s Investments in such Subsidiary that were not sold or
disposed of in an amount determined as provided in Section 4.07(c) hereof.  The acquisition by the Company or any
Subsidiary of the 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 the Company’s Class A common stock,
shares of the Company’s 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 funded Indebtedness of such Person outstanding under
any secured revolving credit facilities.


 


“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


 


12





















 


(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 Indebtedness under a Credit Facility, 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


 


(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.


 


13





















 


“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 12.05 hereof.


 


“Opinion of Counsel” means an
opinion from legal counsel who is reasonably acceptable to the Trustee, that
meets the requirements of Section 12.05 hereof. 
The counsel may be an employee of or counsel to the Company, any Subsidiary
of the Company or the Trustee.


 


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


 


“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;


 


14





















 


(9) repurchases of the
Notes;


 


(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 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


 


15





















 


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 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 created for
the benefit of (or to secure) the Notes (or the Note Guarantees);


 


(12) 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;


 


(13) 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;


 


(14) 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;


 


(15) 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;


 


16





















 


(16) 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;


 


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


 


(18) 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;


 


(19) 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;


 


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


 


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


 


(22) 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;


 


(23) 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


 


(24) 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;


 


(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


 


17





















 


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.


 


“Public Equity Offering” means an
offer and sale of Capital Stock (other than Disqualified Stock or Enhanced
Income Securities) of the Company pursuant to a registration statement that has
been declared effective by the SEC pursuant to the Securities Act (other than a
registration statement on Form S-8 or otherwise relating to equity securities
issuable under any employee benefit plan of the Company).


 


“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).


 


“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.


 


“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.


 


“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 date of this Indenture.


 


18





















 


“Securities Holders Agreement” means the Second Amended and Restated
Securities Agreement dated as of October 14, 2004 among BRS, certain of its
existing stockholders, certain members of its board of directors and its
executive officers, as in effect on the date hereof.


 


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


 


“Senior Subordinated Notes” means
the Company’s 12.0% Senior Subordinated Notes due 2016.


 


“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 date 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 8,
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 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;


 


19





















 


(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.


 


Section 1.02           Other Definitions.


 


	
  Term

  	
   

  	
  Defined
  in

  Section

  
	
   

  	
   

  	
   

  
	
  “Affiliate
  Transaction”

  	
   

  	
  4.11

  
	
  “Asset
  Sale Offer”

  	
   

  	
  3.09

  
	
  “Authentication
  Order”

  	
   

  	
  2.02

  
	
  “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

  
	
  “Offer
  Amount”

  	
   

  	
  3.09

  
	
  “Offer
  Period”

  	
   

  	
  3.09

  
	
  “Paying
  Agent”

  	
   

  	
  2.03

  



 


20





















 


	
  Term

  	
   

  	
  Defined
  in

  Section

  
	
   

  	
   

  	
   

  
	
  “Permitted
  Debt”

  	
   

  	
  4.09

  
	
  “Payment
  Default”

  	
   

  	
  6.01

  
	
  “Purchase
  Date”

  	
   

  	
  3.09

  
	
  “Redemption
  Date”

  	
   

  	
  3.07

  
	
  “Registrar”

  	
   

  	
  2.03

  
	
  “Restricted
  Payments”

  	
   

  	
  4.07

  



 


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;


 


“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.


 


21





















 


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 $1,000 and integral multiples thereof.


 


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 Notes for original issue that may be validly
issued under this Indenture, including any Additional Notes up to the aggregate
principal amount stated in paragraph 4 of the Notes.  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.


 


22





















 


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 Depository Trust
Company (“DTC”) to act as Depository with respect
to the Global Notes.


 


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 or interest on the Notes, and will notify the
Trustee of any default by the Company in making any such payment.  While any such default continues, the Trustee
may require a Paying Agent to pay all money held by it to the Trustee.  The 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


 


23





















 


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
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


 


24





















 


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
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.).


 


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.”


 


(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.


 


25





















 


(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.


 


(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.


 


(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.


 


26





















 


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.


 


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.


 


27





















 


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
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           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 Securities or as contained in any notice of a redemption and that
reliance may be placed only on the other identification numbers printed on the 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.


 


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


 


28





















 


(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 $1,000 or integral multiples
thereof (by lot, on a pro rata basis
or 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 $1,000 or
whole multiples of $1,000; 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 $1,000, 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.


 


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;


 


29





















 


(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.


 


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)   At any time prior to October 1,
2007, the Company may on any one or more occasions redeem up to 35% of the
aggregate principal amount of Notes issued under this Indenture (including


 


30





















 


Additional Notes, if any) at a
redemption price of 108.000% of the principal amount, plus accrued and unpaid
interest, if any, to the redemption date, with the net cash proceeds of one or
more Public Equity Offerings of the Company; provided
that:


 


(1) at least 65% of the aggregate
principal amount of Notes originally issued under this Indenture (excluding
Notes held by the Company and its Subsidiaries) remains outstanding immediately
after the occurrence of such redemption; and


 


(2) the redemption occurs within 90
days of the date of the closing of such Public Equity Offering.


 


(b)   Except pursuant to Sections 3.07(a),
the Notes will not be redeemable at the Company’s option prior to October 1,
2008.


 


(c)   On or after October 1, 2008, 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 1 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

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  2008

  	
   

  	
  104.000

  	
  %

  
	
  2009

  	
   

  	
  102.000

  	
  %

  
	
  2010 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.


 


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


 


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


 


31





















 


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.


 


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 $1,000 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;


 


(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 $1,000, 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).


 


32





















 


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.


 


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


 


33





















 


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 certified
independent registered public accounting firm; and


 


(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.


 


(c)   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


 


34





















 


Guarantors will furnish to the
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 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 an Officer’s
Certificate).


 


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.


 


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.


 


35





















 


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 payment on or with
respect to, or purchase, redeem, defease or otherwise acquire or retire for
value any Indebtedness of the Company or any Guarantor that is contractually
subordinated to the Notes or to any Note Guarantee (excluding any intercompany
Indebtedness between or among the Company and any of its Restricted
Subsidiaries), except a payment of interest or principal at the Stated Maturity
thereof; or


 


(4) make any Restricted Investment
(all such payments and other actions set forth in these clauses (1) through (4)
being collectively referred to as “Restricted Payments”),


 


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, 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)(3), 4.07(b)(6), 4.07(b)(11), 4.07(b)(13),
4.07(b)(14) and 4.07(b)(15) below, is less than the sum, without duplication
of:


 


36





















 


(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 of this Indenture 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


 


(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, 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


 


37





















 


(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;


 


(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) so long as no Default has
occurred and is continuing or would be caused thereby, the repurchase,
redemption, defeasance or other acquisition or retirement for value of
Indebtedness of the Company or any Guarantor that is contractually subordinated
to the Notes or to any Note Guarantee with the net cash proceeds from an
incurrence of Permitted Refinancing Indebtedness or issuance of Disqualified
Stock permitted to be issued by Section 4.09 hereof within 10 Business Days
from such incurrence or issuance;


 


(4) 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;


 


(5) 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;


 


38





















 


(6) 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;


 


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


 


(8) so long as no Default has
occurred and is continuing or would be caused thereby, upon the occurrence of a
Change of Control and within 60 days after the completion of the related Change
of Control Offer, any purchase or redemption of Indebtedness of the Company or
any Guarantor that is contractually subordinated to the Notes or to any Note
Guarantee required pursuant to the terms thereof as a result of such Change of
Control at a purchase or redemption price not to exceed 101% of the outstanding
principal amount thereof, plus accrued and unpaid interest thereon, if any; provided, however,
that such purchase or redemption is not made, directly or indirectly, from the
proceeds of (or made in anticipation of) any issuance of Indebtedness by the
Company or any of its Restricted Subsidiaries;


 


(9) 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;


 


(10) 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;


 


(11) 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;


 


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


 


(13) the repurchase 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 relating to the EISs (which closing
date(s) shall occur on or before November 8, 2004);


 


(14) 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; and


 


(15) so
long as no Default has occurred and is continuing to or would be caused
thereby, the repurchase of shares of our 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 sale of repurchase, the issuance of Senior Subordinated
Notes and the Company’s Class A common stock, in either case completed
substantially contemporaneously with the repurchase and, in respect of any
Senior Subordinated Notes, incurred pursuant to Section 4.09(b)(19) hereof, 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(1)(b) hereof.


 


39





















 


(16) 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 may use to make dividends or other distributions on its common
stock pursuant to the second clause (1) of the first paragraph of this covenant
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.


 


(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
Subordinated 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, 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;


 


40





















 


(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 Capitol Stock of 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 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,


 


41





















 


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 additional Indebtedness and letters of
credit under Credit Facilities in an aggregate principal amount at any one time
outstanding under this clause (1) (with letters of credit being deemed to have
a principal amount equal to the maximum potential liability of the Company and
its Restricted Subsidiaries thereunder) not 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 of up to $166.0
million of Subordinated Notes and the related guarantees thereof by the Company
and the Guarantors;


 


(4) 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;


 


(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 Company or a Restricted


 


42





















 


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; provided
that if the Indebtedness being guaranteed is subordinated to or pari passu with the Notes, then the
Guarantee shall be subordinated or pari
passu, as applicable, to the same extent as the Indebtedness
guaranteed;


 


(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 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


 


43





















 


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 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


 


(18) 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 (18), not to exceed $20.0 million; and


 


(19) the incurrence by the
Company of Indebtedness in the form of Senior Subordinated Notes in connection
with the issuance of EISs or, if there are no EISs outstanding on the date of
such issuance, the issuance of our Class A common stock, (and in each case, the
incurrence of the related guarantees in respect of such Senior Subordinated
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 Senior Subordinated 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 hereof, 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 hereeof from holders
thereof in accordance with the Securities Holders Agreement.


 


44


















The Company will not
incur, and will not permit any Guarantor to incur, any Indebtedness (including
Permitted Debt) that is contractually subordinated in right of payment to any
other Indebtedness of the Company or such Guarantor unless such Indebtedness is
also contractually subordinated in right of payment to the Notes and the
applicable Note Guarantee on substantially identical terms; provided,
however, that no Indebtedness shall be deemed to be contractually
subordinated in right of payment to any other Indebtedness solely by virtue of
being unsecured or by virtue of being secured on a first or junior Lien basis.


 


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. 
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, and the payment of
dividends on Disqualified 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; provided, in each such
case, that the amount thereof is included in Fixed Charges of the Company as
accrued.  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.


 


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:


 


45






















 


(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 pursuant to a customary novation agreement that
releases the Company or such Restricted Subsidiary from further liability;


 


(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.


 


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 Indebtedness and other Obligations under a Credit
Facility 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) above, 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 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


 


46






















 


Holders of Notes 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 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
other pari passu Indebtedness
tendered into such Asset Sale Offer exceeds the amount of Excess Proceeds, the
Trustee will select the Notes and such other pari
passu Indebtedness 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.


 


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:


 


(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.


 


47






















 


(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 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


 


48






















 


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 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 $1,000 or an integral multiple of $1,000) 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, if any, 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 days and no later than 20 days following any Change


 


49






















 


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 $1,000 in principal
amount or an integral multiple thereof.


 


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.


 


50






















 


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.


 


Section 4.16           No Amendment to
Subordination Provisions.


 


Without the consent of
the Holders of at least a majority in aggregate principal amount of the Notes
then outstanding, the Company will not amend, modify or alter the Senior
Subordinated Note Indenture in any way to:


 


(1) increase the rate of or change
the time for payment of interest on any Senior Subordinated Notes;


 


(2) increase the principal of,
advance the final maturity date of or shorten the Weighted Average Life to
Maturity of any Senior Subordinated Notes;


 


(3) alter the redemption provisions
or the price or terms at which the Company is required to offer to purchase any
Senior Subordinated Notes; or


 


(4) amend the provisions of Article
10 of the Senior Subordinated Note Indenture (which relate to subordination).


 


Section 4.17           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.


 


51






















 


Section 4.18           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 4.19           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
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 4.20           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 Officers’
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.


 


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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, 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.


 


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


 


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(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
will be an “Event of Default”:


 


(1) default for 30 days in the
payment when due of interest on the Notes;


 


(2) default in the payment when due
(at maturity, upon redemption or otherwise) of the principal of, or premium, if
any, on, the Notes;


 


(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


 


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(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) 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;


 


(9) 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) under Section 4.07, when the
then-available financial statements presented to the Board of Directors show a
Fixed Charge Coverage Ratio of less than 1.6 to 1.0, or (C) pursuant to the
second clause (2) under Section 4.07, when the then-available financial
statements presented to the Board of Directors show that the amount of
dividends exceeds the amount permitted to be paid under such clause;


 


(10) 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,


 


(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; or


 


(11) 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


 


55






















 


(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.


 


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 that has become due solely because of the acceleration)
have been cured or waived.


 


If an Event of Default
occurs on or after October 1, 2008 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 1, 2008 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 1 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):


 


	
  Year

  	
   

  	
  Percentage

  	
   

  
	
  2004

  	
   

  	
  8.00

  	
  %

  
	
  2005

  	
   

  	
  7.00

  	
  %

  
	
  2006

  	
   

  	
  6.00

  	
  %

  
	
  2007

  	
   

  	
  5.00

  	
  %

  



 


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 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


 


56






















 


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 or interest on, the Notes (including in connection with an offer to
purchase); 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.


 


Section 6.06           Limitation on
Suits.


 


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


 


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


 


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


 


(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) 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 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


 


57






















 


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


 


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


 


58






















 


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
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.


 


59






















 


(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
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 Securities 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.


 


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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 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 or interest on, any Note, the Trustee may withhold the notice if and so
long as a committee of its Responsible Officers in good faith determines that
withholding the notice is in the interests of the Holders 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 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.


 


61






















 


(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.


 


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


 


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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 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.


 


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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
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 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


 


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respect to the
outstanding Notes and Note Guarantees, the Company and the 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 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 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 instrument to which the Company or any
Guarantor is a party or by which the Company or any Guarantor is bound;


 


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(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 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 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 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


 


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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, if any, 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.


 


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, 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 the 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 the 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 Notes” section of the Company’s prospectus dated October 8, 2004, relating
to the initial offering of the Notes, to the extent that such provision in that
“Description of Notes” was intended to be a verbatim recitation of a provision
of this Indenture, the Note Guarantees or the Notes;


 


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


 


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


 


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(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.


 


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 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
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.


 


It is not be 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):


 


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(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 premium, if any, or interest on, the
Notes (except a rescission of acceleration of the Notes by the Holders of at
least a majority in aggregate principal amount of the 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 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) amend the covenant described in
Section 4.07 in any way that would permit the Company to take any action
described in second clauses (1) or (2) of the first paragraph of such covenant
when it would not have otherwise been permitted to take such action under the
terms of such covenant as in effect on the date of the indenture;


 


(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; or


 


(10) make any change in the preceding
amendment, supplement and waiver provisions that requires each holder’s
consent.


 


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.


 


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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.


 


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
12.04 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

NOTE GUARANTEES


 


Section 10.01         Guarantee.


 


(a)   Subject to this Article 10, 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


 


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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 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 10.02         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 10, result in the
obligations of such Guarantor under its Note Guarantee not constituting a
fraudulent transfer or conveyance.


 


Section 10.03         Execution and Delivery of Note
Guarantee.


 


To evidence its Note
Guarantee set forth in Section 10.01 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 10.01 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.


 


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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 4.24
hereof, the Company will cause such Domestic Subsidiary to comply with the
provisions of Section 4.24 hereof and this Article 10, to the extent
applicable.


 


Section 10.04         Guarantors May Consolidate, etc., on
Certain Terms.


 


Except as otherwise
provided in Section 10.05 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 10.05 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, 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


 


(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 10.05         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


 


72






















 


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.


 


(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 11 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 10.05 will remain liable for the full amount of principal of and
interest and premium on the Notes and for the other obligations of any
Guarantor under this Indenture as provided in this Article 10.


 


ARTICLE 11

SATISFACTION AND DISCHARGE


 


Section 11.01         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 and thereafter repaid to the Company, 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;


 


(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


 


73






















 


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 11.01, the
provisions of Sections 11.02 and 8.06 hereof will survive.  In addition, nothing in this Section 11.01
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 11.02         Application of Trust Money.


 


Subject to the provisions
of Section 8.06 hereof, all money deposited with the Trustee pursuant to
Section 11.01 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 11.01 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 11.01 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 the Holders of such Notes to receive such
payment from the money or Government Securities held by the Trustee or Paying
Agent.


 


ARTICLE 12

MISCELLANEOUS


 


Section 12.01         Trust Indenture Act Controls.


 


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


 


74






















 


Section 12.02         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.


 


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.


 


75






















 


Section 12.03         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 12.04         Certificate and Opinion as to
Conditions Precedent.


 


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


 


(1) an Officers’ Certificate in form
and substance reasonably satisfactory to the Trustee (which must include the
statements set forth in Section 12.05 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 12.05 hereof) stating that, in the opinion of
such counsel, all such conditions precedent and covenants have been satisfied.


 


Section 12.05         Statements Required in Certificate or
Opinion.


 


Each certificate or
opinion with respect to compliance with a condition or covenant provided for in
this Indenture (other than a certificate provided pursuant to 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 12.06         Rules by Trustee and Agents.


 


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


 


Section 12.07         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


 


76






















 


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 12.08         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.


 


Section 12.09         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 12.10         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 10.05 hereof.


 


Section 12.11         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 12.12         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 12.13         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 12.14         Waiver of Jury Trial.


 


EACH OF THE COMPANY, THE
GUARANTORS 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]


 


77






















 


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

  	
   

  
	
   

  	
  as Guarantors

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  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

  	
   

  



 






















 


[Face of Note]


 


 


CUSIP/CINS
                     


 


8.0% Senior Notes
due 2011


 


	
  No.

  	
  $                

  



 


B&G FOODS, INC.


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


 


promises to pay to


 


or registered assigns,


 


the principal sum of
                                                                                                                                                                   
DOLLARS on October 1, 2011.


 


Interest Payment
Dates:  April 1 and October 1


 


Record Dates:  March 15 and September 15


 


	
  Dated:

  	
   

  
	
   

  	
   

  
	
   

  	
  B&G FOODS, INC.

  
	
   

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

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  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]


8.0% Senior Notes due 2011


 


THIS GLOBAL NOTE IS HELD
BY THE DEPOSITARY (AS DEFINED IN THE INDENTURE GOVERNING THIS NOTE) OR ITS
NOMINEE IN CUSTODY FOR THE BENEFIT OF THE BENEFICIAL OWNERS HEREOF, AND IS NOT
TRANSFERABLE TO ANY PERSON UNDER ANY CIRCUMSTANCES EXCEPT THAT (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.).


 


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.


 


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. (f/k/a B&G Foods
Holdings Corp.), a Delaware corporation (the “Company”),
promises to pay interest on the principal amount of this Note at 8.0% per annum
from October 14, 2004 until maturity. 
The Company will pay interest semi-annually in arrears on April 1 and
October 1 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
or, if no interest has been paid, from the date of issuance; 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 April 1, 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.


 


A-2






















 


(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 the March 15 or September 15 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 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, premium on, all Global Notes and all other Notes the
Holders of which will have provided wire transfer instructions to the Company
or 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.


 


(a)   At any time prior to October 1,
2007, the Company may on any one or more occasions redeem up to 35% of the
aggregate principal amount of Notes issued under the Indenture (including
Additional Notes, if any) at a redemption price of 108.000% of the principal
amount, plus accrued and unpaid interest to the redemption date, with the net
cash proceeds of one or more Public Equity Offerings of the Company; provided
that:


 


(1) at least 65% of the aggregate
principal amount of Notes originally issued under the Indenture (excluding
Notes held by the Company and its Subsidiaries) remains outstanding immediately
after the occurrence of such redemption; and


 


(2) the redemption occurs within 90
days of the date of the closing of such Public Equity Offering.


 


(b)   Except pursuant to the preceding
paragraphs (a), the Notes will not be redeemable at the Company’s option prior
to October 1, 2008.


 


(c)   On or after October 1, 2008, 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 1 of the years


 


A-3






















 


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

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  2008

  	
   

  	
  104.000

  	
  %

  
	
  2009

  	
   

  	
  102.000

  	
  %

  
	
  2010 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.


 


(6) MANDATORY REDEMPTION.


 


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


 


(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 $1,000 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”).  Within
10 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 Indebtedness
that is pari
passu with the Notes 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 and 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.


 


A-4






















 


(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 $1,000 may be redeemed in part but
only in whole multiples of $1,000, 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 $1,000 and integral multiples of $1,000.  The transfer of Notes may be registered and
Notes may be exchanged as provided in the Indenture.  The Registrar and the Trustee may require a Holder, among other
things, to furnish appropriate endorsements and transfer documents and the
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, 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 the 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 the 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 Notes” section of the Company’s prospectus
dated October 8, 2004, relating to the initial offering of the Notes, to the
extent that such provision in that “Description of Notes” was intended to be a
verbatim recitation of a provision of the Indenture, the Note Guarantees or the
Notes; to provide for the issuance of Additional Notes in accordance with the
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 4.07, 4.09 or 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


 


A-5






















 


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;  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 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 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 interest or premium on, or the principal of,
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) 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.


 


(14) 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.


 


(15) AUTHENTICATION.  This Note will not be valid until
authenticated by the manual signature of the Trustee or an authenticating
agent.


 


(16) 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).


 


A-6






















 


(17) 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.


 


(18) 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.  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-7






















 


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-8






















 


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:


 


o Section
4.10                    o
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-9






















 


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

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  



 


A-10






















 


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
October 14, 2004 (the “Indenture”) among B&G Foods, Inc.
(f/k/a B&G Foods Holdings Corp.), (the “Company”), the Guarantors party thereto
and The Bank of New York, as trustee (the “Trustee”), (a) the due and punctual
payment of the principal of, premium 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. (f/k/a B&G
Foods Holdings Corp.) (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 October 14, 2004 providing for the issuance of 8.0% Senior Notes
due 2011 (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.


 


4.             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. 
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.


 


5.             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.


 


C-1






















 


6.             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.


 


7.             EFFECT
OF HEADINGS.  The Section headings
herein are for convenience only and shall not affect the construction hereof.


 


8.             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.

  
	
   

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

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
   

  	
  Name:

  	
   

  
	
   

  	
   

  	
  Title:

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  [EXISTING GUARANTORS]

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
   

  	
  Name:

  	
   

  
	
   

  	
   

  	
  Title:

  	
   

  
	
   

  	
   

  
	
   

  	
  THE BANK OF NEW YORK,

  
	
   

  	
   as Trustee

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
   

  	
  Authorized Signatory

  	
   

  
					



 


C-3