Exhibit 4.1


 




 





 


THE WORNICK
COMPANY


 


(as Issuer)


 


$125,000,000

107/8% Senior Secured Notes due
2011


 


 












 


INDENTURE


 


Dated as of
June 30, 2004


 












 


U.S. BANK
NATIONAL ASSOCIATION


 


(as Trustee)


 




 





 

















 


TABLE OF CONTENTS


 


	
  ARTICLE I DEFINITIONS AND INCORPORATION BY
  REFERENCE

  	
  1

  
	
   

  	
  SECTION 1.1

  	
  DEFINITIONS

  	
  1

  
	
   

  	
  SECTION 1.2

  	
  OTHER DEFINITIONS

  	
  31

  
	
   

  	
  SECTION 1.3

  	
  INCORPORATION BY REFERENCE OF TRUST
  INDENTURE ACT

  	
  32

  
	
   

  	
  SECTION 1.4

  	
  RULES OF CONSTRUCTION

  	
  33

  
	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE II THE NOTES

  	
  33

  
	
   

  	
  SECTION 2.1

  	
  FORM AND DATING

  	
  33

  
	
   

  	
  SECTION 2.2

  	
  EXECUTION AND AUTHENTICATION

  	
  34

  
	
   

  	
  SECTION 2.3

  	
  REGISTRAR, PAYING AGENT AND DEPOSITARY

  	
  35

  
	
   

  	
  SECTION 2.4

  	
  PAYING AGENT TO HOLD MONEY IN TRUST

  	
  35

  
	
   

  	
  SECTION 2.5

  	
  HOLDER LISTS

  	
  35

  
	
   

  	
  SECTION 2.6

  	
  TRANSFER AND EXCHANGE

  	
  36

  
	
   

  	
  SECTION 2.7

  	
  REPLACEMENT NOTES

  	
  50

  
	
   

  	
  SECTION 2.8

  	
  OUTSTANDING NOTES

  	
  51

  
	
   

  	
  SECTION 2.9

  	
  TREASURY NOTES

  	
  51

  
	
   

  	
  SECTION 2.10

  	
  TEMPORARY NOTES

  	
  51

  
	
   

  	
  SECTION 2.11

  	
  CANCELLATION

  	
  52

  
	
   

  	
  SECTION 2.12

  	
  DEFAULTED INTEREST

  	
  52

  
	
   

  	
  SECTION 2.13

  	
  CUSIP NUMBERS

  	
  53

  
	
   

  	
  SECTION 2.14

  	
  ISSUANCE OF ADDITIONAL NOTES

  	
  53

  
	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE III REDEMPTION

  	
  53

  
	
   

  	
  SECTION 3.1

  	
  NOTICES TO TRUSTEE

  	
  53

  
	
   

  	
  SECTION 3.2

  	
  SELECTION OF NOTES TO BE REDEEMED

  	
  54

  
	
   

  	
  SECTION 3.3

  	
  NOTICE OF REDEMPTION

  	
  54

  
	
   

  	
  SECTION 3.4

  	
  EFFECT OF NOTICE OF REDEMPTION

  	
  55

  
	
   

  	
  SECTION 3.5

  	
  DEPOSIT OF REDEMPTION PRICE

  	
  55

  
	
   

  	
  SECTION 3.6

  	
  NOTES REDEEMED IN PART

  	
  56

  
	
   

  	
  SECTION 3.7

  	
  OPTIONAL REDEMPTION

  	
  56

  
	
   

  	
  SECTION 3.8

  	
  NO MANDATORY REDEMPTION

  	
  57

  
	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE IV COVENANTS

  	
  57

  
	
   

  	
  SECTION 4.1

  	
  PAYMENT OF NOTES

  	
  57

  
	
   

  	
  SECTION 4.2

  	
  MAINTENANCE OF OFFICE OR AGENCY

  	
  57

  
	
   

  	
  SECTION 4.3

  	
  COMMISSION REPORTS AND REPORTS TO HOLDERS

  	
  58

  
	
   

  	
  SECTION 4.4

  	
  COMPLIANCE CERTIFICATE

  	
  58

  
	
   

  	
  SECTION
  4.5

  	
  TAXES

  	
  59

  
	
   

  	
  SECTION 4.6

  	
  STAY, EXTENSION AND USURY LAWS

  	
  59

  
	
   

  	
  SECTION 4.7

  	
  LIMITATION ON INCURRENCE OF ADDITIONAL
  INDEBTEDNESS AND  DISQUALIFIED CAPITAL
  STOCK

  	
  59

  
	
   

  	
  SECTION 4.8

  	
  LIMITATION ON LIENS SECURING INDEBTEDNESS

  	
  61

  
	
   

  	
  SECTION 4.9

  	
  LIMITATION ON RESTRICTED PAYMENTS

  	
  61

  



 

















 


	
   

  	
  SECTION 4.10

  	
  LIMITATION ON DIVIDEND AND OTHER PAYMENT
  RESTRICTIONS AFFECTING SUBSIDIARIES

  	
  64

  
	
   

  	
  SECTION 4.11

  	
  LIMITATION ON IMPAIRMENT OF SECURITY
  INTERESTS

  	
  66

  
	
   

  	
  SECTION 4.12

  	
  LIMITATION ON TRANSACTIONS WITH AFFILIATES

  	
  66

  
	
   

  	
  SECTION 4.13

  	
  LIMITATION ON SALE OF ASSETS AND SUBSIDIARY
  STOCK

  	
  67

  
	
   

  	
  SECTION 4.14

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

  	
  70

  
	
   

  	
  SECTION 4.15

  	
  SUBSIDIARY GUARANTORS

  	
  72

  
	
   

  	
  SECTION 4.16

  	
  LIMITATION ON STATUS AS INVESTMENT COMPANY

  	
  72

  
	
   

  	
  SECTION 4.17

  	
  MAINTENANCE OF PROPERTIES AND INSURANCE

  	
  72

  
	
   

  	
  SECTION 4.18

  	
  CORPORATE EXISTENCE

  	
  73

  
	
   

  	
  SECTION 4.19

  	
  LIMITATION ON LINES OF BUSINESS

  	
  73

  
	
   

  	
  SECTION 4.20

  	
  RULE 144A INFORMATION

  	
  73

  
	
   

  	
  SECTION 4.21

  	
  ADDITIONAL COLLATERAL

  	
  73

  
	
   

  	
  SECTION 4.22

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

  	
  73

  
	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE V SUCCESSORS

  	
  74

  
	
   

  	
  SECTION 5.1

  	
  LIMITATION ON MERGER, SALE OR CONSOLIDATION

  	
  74

  
	
   

  	
  SECTION 5.2

  	
  SUCCESSOR CORPORATION SUBSTITUTED

  	
  75

  
	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE VI DEFAULTS AND REMEDIES

  	
  76

  
	
   

  	
  SECTION 6.1

  	
  EVENTS OF DEFAULT

  	
  76

  
	
   

  	
  SECTION 6.2

  	
  ACCELERATION

  	
  78

  
	
   

  	
  SECTION 6.3

  	
  OTHER REMEDIES

  	
  79

  
	
   

  	
  SECTION 6.4

  	
  WAIVER OF DEFAULTS

  	
  79

  
	
   

  	
  SECTION 6.5

  	
  CONTROL BY MAJORITY

  	
  79

  
	
   

  	
  SECTION 6.6

  	
  LIMITATION ON SUITS

  	
  80

  
	
   

  	
  SECTION 6.7

  	
  RIGHTS OF HOLDERS OF NOTES TO RECEIVE
  PAYMENT

  	
  80

  
	
   

  	
  SECTION 6.8

  	
  COLLECTION SUIT BY TRUSTEE

  	
  80

  
	
   

  	
  SECTION 6.9

  	
  TRUSTEE MAY FILE PROOFS OF CLAIM

  	
  81

  
	
   

  	
  SECTION 6.10

  	
  PRIORITIES

  	
  81

  
	
   

  	
  SECTION 6.11

  	
  UNDERTAKING FOR COSTS

  	
  82

  
	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE VII TRUSTEE

  	
  82

  
	
   

  	
  SECTION 7.1

  	
  DUTIES OF TRUSTEE

  	
  82

  
	
   

  	
  SECTION 7.2

  	
  RIGHTS OF TRUSTEE

  	
  83

  
	
   

  	
  SECTION 7.3

  	
  INDIVIDUAL RIGHTS OF TRUSTEE

  	
  85

  
	
   

  	
  SECTION 7.4

  	
  TRUSTEE’S DISCLAIMER

  	
  85

  
	
   

  	
  SECTION 7.5

  	
  NOTICE OF DEFAULTS

  	
  85

  
	
   

  	
  SECTION 7.6

  	
  REPORTS BY TRUSTEE TO HOLDERS OF THE NOTES

  	
  85

  
	
   

  	
  SECTION 7.7

  	
  COMPENSATION AND INDEMNITY

  	
  86

  
	
   

  	
  SECTION 7.8

  	
  REPLACEMENT OF TRUSTEE

  	
  87

  
	
   

  	
  SECTION 7.9

  	
  SUCCESSOR TRUSTEE BY MERGER, ETC.

  	
  88

  
	
   

  	
  SECTION 7.10

  	
  ELIGIBILITY; DISQUALIFICATION

  	
  88

  
	
   

  	
  SECTION 7.11

  	
  PREFERENTIAL COLLECTION OF CLAIMS AGAINST
  ISSUER

  	
  88

  



 


ii

















 


	
  ARTICLE VIII LEGAL DEFEASANCE AND COVENANT
  DEFEASANCE

  	
  88

  
	
   

  	
  SECTION 8.1

  	
  OPTION TO EFFECT LEGAL DEFEASANCE OR
  COVENANT DEFEASANCE

  	
  88

  
	
   

  	
  SECTION 8.2

  	
  LEGAL DEFEASANCE

  	
  88

  
	
   

  	
  SECTION 8.3

  	
  COVENANT DEFEASANCE

  	
  89

  
	
   

  	
  SECTION 8.4

  	
  CONDITIONS TO LEGAL OR COVENANT DEFEASANCE

  	
  90

  
	
   

  	
  SECTION 8.5

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

  	
  91

  
	
   

  	
  SECTION 8.6

  	
  REPAYMENT TO ISSUER

  	
  92

  
	
   

  	
  SECTION 8.7

  	
  REINSTATEMENT

  	
  92

  
	
   

  	
  SECTION 8.8

  	
  SATISFACTION AND DISCHARGE

  	
  93

  
	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE
  IX AMENDMENT, SUPPLEMENT AND WAIVER

  	
  94

  
	
   

  	
  SECTION 9.1

  	
  WITH CONSENT OF HOLDERS OF A MAJORITY

  	
  94

  
	
   

  	
  SECTION 9.2

  	
  WITH CONSENT OF ALL AFFECTED HOLDERS OF
  NOTES OR A SUPERMAJORITY

  	
  94

  
	
   

  	
  SECTION 9.3

  	
  WITHOUT CONSENT OF HOLDERS OF NOTES

  	
  96

  
	
   

  	
  SECTION 9.4

  	
  CONSENT PAYMENT; SUPPLEMENTAL INDENTURES

  	
  96

  
	
   

  	
  SECTION 9.5

  	
  REVOCATION AND EFFECT OF CONSENTS

  	
  97

  
	
   

  	
  SECTION 9.6

  	
  NOTATION ON OR EXCHANGE OF NOTES

  	
  97

  
	
   

  	
  SECTION 9.7

  	
  TRUSTEE TO SIGN AMENDMENTS, ETC.

  	
  98

  
	
   

  	
  SECTION 9.8

  	
  COMPLIANCE WITH TRUST INDENTURE ACT

  	
  98

  
	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE X COLLATERAL AND SECURITY

  	
  98

  
	
   

  	
  SECTION 10.1

  	
  COLLATERAL AGREEMENTS; SECURITY INTERESTS.

  	
  98

  
	
   

  	
  SECTION 10.2

  	
  FURTHER ASSURANCES AND SECURITY.

  	
  100

  
	
   

  	
  SECTION 10.3

  	
  OPINIONS.

  	
  100

  
	
   

  	
  SECTION 10.4

  	
  RELEASE OF COLLATERAL.

  	
  101

  
	
   

  	
  SECTION 10.5

  	
  CERTIFICATES OF THE ISSUER.

  	
  102

  
	
   

  	
  SECTION 10.6

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

  	
  102

  
	
   

  	
  SECTION 10.7

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

  	
  103

  
	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE XI Guarantees

  	
  103

  
	
   

  	
  SECTION 11.1

  	
  GUARANTEES

  	
  103

  
	
   

  	
  SECTION 11.2

  	
  EXECUTION AND DELIVERY OF GUARANTEES 

  	
  104

  
	
   

  	
  SECTION 11.3

  	
  GUARANTORS MAY CONSOLIDATE, ETC., ON
  CERTAIN TERMS

  	
  105

  
	
   

  	
  SECTION 11.4

  	
  GUARANTEE BY FUTURE SUBSIDIARIES

  	
  106

  
	
   

  	
  SECTION 11.5

  	
  RELEASE OF GUARANTORS

  	
  106

  
	
   

  	
  SECTION 11.6

  	
  LIMITATION OF GUARANTOR’S LIABILITY;
  CERTAIN BANKRUPTCY  EVENTS

  	
  107

  
	
   

  	
  SECTION 11.7

  	
  APPLICATION OF CERTAIN TERMS AND PROVISIONS
  TO THE  GUARANTORS

  	
  108

  



 


iii

















 


	
  ARTICLE XII MISCELLANEOUS

  	
  108

  
	
   

  	
  SECTION 12.1

  	
  TRUST INDENTURE ACT CONTROLS

  	
  108

  
	
   

  	
  SECTION 12.2

  	
  NOTICES

  	
  108

  
	
   

  	
  SECTION 12.3

  	
  COMMUNICATION BY HOLDERS OF NOTES WITH
  OTHER HOLDERS OF  NOTES

  	
  110

  
	
   

  	
  SECTION 12.4

  	
  CERTIFICATE AND OPINION AS TO CONDITIONS
  PRECEDENT

  	
  110

  
	
   

  	
  SECTION 12.5

  	
  STATEMENTS REQUIRED IN CERTIFICATE OR
  OPINION

  	
  110

  
	
   

  	
  SECTION 12.6

  	
  RULES BY TRUSTEE AND AGENTS

  	
  111

  
	
   

  	
  SECTION 12.7

  	
  NO PERSONAL LIABILITY OF DIRECTORS,
  OFFICERS, EMPLOYEES AND STOCKHOLDERS

  	
  111

  
	
   

  	
  SECTION 12.8

  	
  GOVERNING LAW

  	
  111

  
	
   

  	
  SECTION 12.9

  	
  NO ADVERSE INTERPRETATION OF OTHER AGREEMENTS

  	
  111

  
	
   

  	
  SECTION 12.10

  	
  SUCCESSORS

  	
  111

  
	
   

  	
  SECTION 12.11

  	
  SEVERABILITY

  	
  112

  
	
   

  	
  SECTION 12.12

  	
  COUNTERPART ORIGINALS

  	
  112

  
	
   

  	
  SECTION 12.13

  	
  TABLE OF CONTENTS, HEADINGS, ETC.

  	
  112

  
	
   

  	
  SECTION 12.14

  	
  INTERCREDITOR AGREEMENT

  	
  112

  



 


EXHIBITS


 


	
  EXHIBIT
  A

  	
   

  	
  FORM
  OF NOTE

  
	
   

  	
   

  	
   

  
	
  EXHIBIT
  B

  	
   

  	
  FORM
  OF CERTIFICATE OF TRANSFER

  
	
   

  	
   

  	
   

  
	
  EXHIBIT
  C

  	
   

  	
  FORM
  OF CERTIFICATE OF EXCHANGE

  
	
   

  	
   

  	
   

  
	
  EXHIBIT
  D

  	
   

  	
  FORM
  OF CERTIFICATE FROM ACQUIRING INSTITUTIONAL ACCREDITED INVESTOR

  
	
   

  	
   

  	
   

  
	
  EXHIBIT
  E

  	
   

  	
  FORM
  OF SUPPLEMENTAL INDENTURE TO BE DELIVERED BY SUBSEQUENT GUARANTORS

  
	
   

  	
   

  	
   

  
	
  EXHIBIT
  F

  	
   

  	
  FORM
  OF INTERCREDITOR AGREEMENT

  



 


iv

















 


CROSS-REFERENCE TABLE*


 


	
  TIA
  Section

  	
   

  	
  Indenture Section

  
	
  310(a)(1)

  	
   

  	
   

  	
  7.10

  
	
  (a)(2)

  	
   

  	
   

  	
  7.10

  
	
  (a)(3)

  	
   

  	
   

  	
  N.A.

  
	
  (a)(4)

  	
   

  	
   

  	
  N.A.

  
	
  (a)(5)

  	
   

  	
   

  	
  7.8; 7.10

  
	
  (b)

  	
   

  	
   

  	
  7.8; 7.10;
  12.2

  
	
  (c)

  	
   

  	
   

  	
  N.A.

  
	
  311(a)

  	
   

  	
   

  	
  7.11

  
	
  (b)

  	
   

  	
   

  	
  7.11

  
	
  (c)

  	
   

  	
   

  	
  N.A.

  
	
  312(a)

  	
   

  	
   

  	
  2.5

  
	
  (b)

  	
   

  	
   

  	
  12.3

  
	
  (c)

  	
   

  	
   

  	
  12.3

  
	
  313(a)

  	
   

  	
   

  	
  7.6

  
	
  (b)(1)

  	
   

  	
   

  	
  N.A.

  
	
  (b)(2)

  	
   

  	
   

  	
  7.6, 7.7

  
	
  (c)

  	
   

  	
   

  	
  7.5, 7.6;
  12.2

  
	
  (d)

  	
   

  	
   

  	
  7.6

  
	
  314(a)

  	
   

  	
   

  	
  4.3; 4.4;
  12.2

  
	
  (b)

  	
   

  	
   

  	
  N.A.

  
	
  (c)(1)

  	
   

  	
   

  	
  12.4

  
	
  (c)(2)

  	
   

  	
   

  	
  12.4

  
	
  (c)(3)

  	
   

  	
   

  	
  N.A.

  
	
  (d)

  	
   

  	
   

  	
  10.5

  
	
  (e)

  	
   

  	
   

  	
  12.5

  
	
  (f)

  	
   

  	
   

  	
  N.A.

  
	
  315(a)

  	
   

  	
   

  	
  7.1(b)

  
	
  (b)

  	
   

  	
   

  	
  7.5; 12.2

  
	
  (c)

  	
   

  	
   

  	
  7.1(a)

  
	
  (d)

  	
   

  	
   

  	
  7.1(c)

  
	
  (e)

  	
   

  	
   

  	
  6.11

  
	
  316(a)(last
  sentence)

  	
   

  	
   

  	
  2.9

  
	
  (a)(1)(A)

  	
   

  	
   

  	
  6.5

  
	
  (a)(1)(B)

  	
   

  	
   

  	
  6.4

  
	
  (a)(2)

  	
   

  	
   

  	
  N.A.

  
	
  (b)

  	
   

  	
   

  	
  6.7

  
	
  (c)

  	
   

  	
   

  	
  6.3

  
	
  317(a)(1)

  	
   

  	
   

  	
  6.8

  
	
  (a)(2)

  	
   

  	
   

  	
  6.9

  
	
  (b)

  	
   

  	
   

  	
  2.4

  
	
  318(a)

  	
   

  	
   

  	
  12.1

  
	
  (c)

  	
   

  	
   

  	
  12.1

  













N.A. means not applicable


 


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


 


v

















 


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


 


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


 


ARTICLE I

DEFINITIONS AND INCORPORATION

BY REFERENCE


 


Section 1.1                                      DEFINITIONS


 


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


 


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


 


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


 


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


 


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


 


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


 


1

















 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


2

















 


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


 


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


 


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


 


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


 


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


 


“Cash
Equivalent” means:


 


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


 


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


 


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


 


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


 


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


 


3

















 


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


 


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


 


“Change of Control”
means:


 


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


 


(2)                                  the
Issuer adopts a plan of liquidation;


 


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


 


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


 


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


 


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


 


4

















 


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


 


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


 


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


 


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


 


“Commission”
means the Securities and Exchange Commission.


 


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


 


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


 


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


 


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


 


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


 


5

















 


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


 


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


 


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


 


(1)                                  consolidated
income tax expense,


 


(2)                                  consolidated
depreciation and amortization expense,


 


(3)                                  Consolidated
Fixed Charges,


 


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


 


(5)                                  Management
Fees,


 


(6)                                  Non-Cash
ESOP Compensation Charges, and


 


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


 


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


 


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


 


6

















 


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


 


(b)                                 the
product of (i) the amount of cash dividends accrued or payable (or
guaranteed) by such Person or any of its Consolidated Subsidiaries in respect
of Preferred Stock (other than by Subsidiaries to the Issuer or to the Issuer’s
Wholly Owned Subsidiaries) times (ii) a fraction, the numerator of which
is one and the denominator of which is one minus the then current effective
consolidated Federal, state and local income tax rate of such Person, expressed
as a decimal (as estimated in good faith by the Issuer).


 


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


 


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


 


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


 


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


 


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


 


7

















 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


8

















 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


9

















 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


10

















 


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


 


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


 


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


 


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


 


“Excluded
Assets” means:


 


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


 


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


 


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


 


11

















 


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


 


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


 


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


 


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


 


12

















 


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


 


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


 


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


 


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


 


“Exempted
Affiliate Transaction” means:


 


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


 


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


 


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


 


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


 


(e)                                  any
agreement as in effect as of the Issue Date among the Issuer and/or one or more
Subsidiaries, on the one hand, and one or more Affiliates, on the other hand
(including any amendment thereto and any replacement agreement thereto so long
as any such amendment or replacement agreement is not more disadvantageous to
the Holders in any material respect than the original agreement as in effect on
the Issue Date) and any transaction contemplated thereby (for the avoidance of doubt, Exempted
Affiliate Transaction shall include the payment of a $3.0 million
transaction fee to Veritas Capital Management II, L.L.C. in connection with the


 


13

















 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


14

















 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


15

















 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


“Interest” means the
interest payable on the Notes.


 


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


 


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


 


16

















 


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


 


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


 


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


 


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


 


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


 


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


 


(e)                                  Investments
described in the immediately following paragraph.


 


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


 


17

















 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


18

















 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


19

















 


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


 


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


 


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


 


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


 


“Permitted
Indebtedness” means:


 


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


 


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


 


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


 


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


 


20

















 


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


 


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


 


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


 


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


 


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


 


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


 


21

















 


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


 


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


 


“Permitted Investment”
means:


 


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


 


(b)                                 any
Investment in cash or Cash Equivalents;


 


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


 


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


 


22

















 


(e)                                  Investments
in existence on the Issue Date;


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


“Permitted Liens” means:


 


(a)                                  Liens
existing on the Issue Date;


 


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


 


23

















 


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


 


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


 


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


 


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


 


(g)                                 Liens
securing the Notes and the Guarantees;


 


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


 


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


 


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


 


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


 


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


 


24

















 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


25

















 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


“Qualified
Exchange” means:


 


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


 


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


 


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


 


26

















 


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


 


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


 


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


 


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


 


27

















 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


28

















 


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


 


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


 


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


 


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


 


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


 


(d)                                 any
Restricted Investment by such Person;


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


29

















 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


“Unrestricted
Subsidiary” means:


 


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


 


30

















 


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


 


(2)                                  any
subsidiary of an Unrestricted Subsidiary.


 


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


 


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


 


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


 


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


 


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


 


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


 


Section 1.2                                      OTHER DEFINITIONS


 


	
  Term

  	
   

  	
  Defined in Section

  
	
  “360-Day Period”

  	
   

  	
   

  	
  4.13

  
	
  “Acceleration Notice”

  	
   

  	
   

  	
  6.1

  
	
  “Affiliate Transaction”

  	
   

  	
   

  	
  4.12

  
	
  “Asset Sale”

  	
   

  	
   

  	
  4.13

  
	
  “Asset Sale Amount”

  	
   

  	
   

  	
  4.13

  



 


31

















 


	
  “Asset Sale Notice”

  	
   

  	
   

  	
  4.13

  
	
  “Asset Sale Offer”

  	
   

  	
   

  	
  4.13

  
	
  “Asset Sale Offer Amount”

  	
   

  	
   

  	
  4.13

  
	
  “Asset Sale Offer Price”

  	
   

  	
   

  	
  4.13

  
	
  “Asset Sale Purchase Date”

  	
   

  	
   

  	
  4.13

  
	
  “Authentication Order”

  	
   

  	
   

  	
  2.2

  
	
  “Benefited Party”

  	
   

  	
   

  	
  11.1

  
	
  “Change of Control Notice”

  	
   

  	
   

  	
  4.14

  
	
  “Change of Control Offer”

  	
   

  	
   

  	
  4.14

  
	
  “Change of Control Purchase Date”

  	
   

  	
   

  	
  4.14

  
	
  “Change of Control Purchase Price”

  	
   

  	
   

  	
  4.14

  
	
  “Covenant Defeasance”

  	
   

  	
   

  	
  8.3

  
	
  “Debt Incurrence Ratio”

  	
   

  	
   

  	
  4.7

  
	
  “Defaulted Interest”

  	
   

  	
   

  	
  2.12

  
	
  “DTC”

  	
   

  	
   

  	
  2.3

  
	
  “Event of Default”

  	
   

  	
   

  	
  6.1

  
	
  “Excess Proceeds”

  	
   

  	
   

  	
  4.13

  
	
  “Guarantee Obligations”

  	
   

  	
   

  	
  11.1

  
	
  “incur” or “incurrence”

  	
   

  	
   

  	
  4.7

  
	
  “Incurrence Date”

  	
   

  	
   

  	
  4.7

  
	
  “Investment Company Act”

  	
   

  	
   

  	
  4.16

  
	
  “Issuer”

  	
   

  	
   

  	
  Preamble

  
	
  “Legal Defeasance”

  	
   

  	
   

  	
  8.2

  
	
  “Notes”

  	
   

  	
   

  	
  Preamble

  
	
  “Paying Agent”

  	
   

  	
   

  	
  2.3

  
	
  “Refinancing”

  	
   

  	
   

  	
  Definition
  of Permitted Refinancing Indebtedness

  
	
  “Registrar”

  	
   

  	
   

  	
  2.3

  
	
  “Redemption Date”

  	
   

  	
   

  	
  3.8

  
	
  “Series A Notes”

  	
   

  	
   

  	
  Preamble

  
	
  “Series B Notes”

  	
   

  	
   

  	
  Preamble

  
	
  “Transaction Date”

  	
   

  	
   

  	
  Definition
  of Consolidated Coverage Ratio

  
					



 


Section 1.3                                      INCORPORATION BY REFERENCE OF
TRUST INDENTURE ACT


 


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


 


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


 


“Commission” means the Securities and Exchange Commission;


 


32

















 


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


 


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


 


Section 1.4                                      RULES OF CONSTRUCTION


 


Unless the context otherwise requires:


 


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


 


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


 


(3)           “or” is not exclusive;


 


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


 


(5)           provisions apply to successive events
and transactions;


 


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


 


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


 


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


 


ARTICLE II

THE NOTES


 


Section 2.1                                      FORM AND DATING


 


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


 


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


 


33

















 


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


 


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


 


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


 


Section 2.2                                      EXECUTION AND AUTHENTICATION


 


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


 


34

















 


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


 


Section 2.3                                      REGISTRAR, PAYING AGENT AND DEPOSITARY


 


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


 


Section 2.4                                      PAYING AGENT TO HOLD MONEY IN
TRUST


 


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


 


Section 2.5                                      HOLDER LISTS


 


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


 


35

















 


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


 


Section 2.6                                      TRANSFER AND EXCHANGE


 


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


 


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


 


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


 


36

















 


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


 


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


 


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


 


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


 


37

















 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


38

















 


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


 


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


 


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


 


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


 


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


 


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


 


39

















 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


40

















 


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


 


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


 


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


 


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


 


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


 


41

















 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


42

















 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


43

















 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


44

















 


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


 


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


 


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


 


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


 


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


 


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


 


45

















 


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


 


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


 


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


 


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


 


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


 


46

















 


(i)            Private
Placement Legend.


 


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


 


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


 


47

















 


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


 


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


 


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


 


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


 


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


 


48

















 


AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE
HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE
REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.”


 


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


 


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


 


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


 


(i)            General
Provisions Relating to Transfers and Exchanges.


 


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


 


(ii)           No service charge
shall be made to a holder of a beneficial interest in a Global Note or to a
Holder of a Definitive Note for any registration of transfer or exchange, but
the Issuer may require payment of a sum sufficient to cover any transfer tax or
similar governmental charge payable in connection therewith (other than any
such transfer taxes or similar governmental charge payable upon exchange or
transfer pursuant to Section 2.10, 3.6, 4.13, 4.14 or 4.22 hereof).


 


49

















 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


Section 2.7                                      REPLACEMENT NOTES


 


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


 


50

















 


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


 


Section 2.8                                      OUTSTANDING NOTES


 


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


 


Section 2.9                                      TREASURY NOTES


 


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


 


Section 2.10                                TEMPORARY NOTES


 


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


 


51

















 


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


 


Section 2.11                                CANCELLATION


 


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


 


Section 2.12                                DEFAULTED INTEREST


 


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


 


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


 


52

















 


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


 


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


 


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


 


Section 2.13                                CUSIP NUMBERS


 


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


 


Section 2.14                                ISSUANCE OF ADDITIONAL NOTES


 


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


 


ARTICLE III

REDEMPTION


 


Section 3.1                                      NOTICES TO TRUSTEE


 


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


 


53

















 


Section 3.2                                      SELECTION OF NOTES TO BE REDEEMED


 


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


 


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


 


Section 3.3                                      NOTICE OF REDEMPTION


 


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


 


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


 


(a)           the Redemption Date;


 


(b)           the redemption price;


 


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


 


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


 


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


 


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


 


54

















 


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


 


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


 


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


 


Section 3.4                                      EFFECT OF NOTICE OF REDEMPTION


 


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


 


Section 3.5                                      DEPOSIT OF REDEMPTION PRICE


 


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


 


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


 


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


 


55

















 


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


 


Section 3.6                                      NOTES REDEEMED IN PART


 


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


 


Section 3.7                                      OPTIONAL REDEMPTION


 


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


 


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


 


	
  Year

  	
   

  	
  Percentage

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  2008

  	
   

  	
  105.438

  	
  %

  
	
  2009

  	
   

  	
  102.719

  	
  %

  
	
  2010 and thereafter

  	
   

  	
  100.000

  	
  %

  



 


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


 


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


 


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Section 3.8                                      NO MANDATORY REDEMPTION


 


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


 


ARTICLE IV

COVENANTS


 


Section 4.1                                      PAYMENT OF NOTES


 


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


 


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


 


Section 4.2                                      MAINTENANCE OF OFFICE OR AGENCY


 


The Issuer
shall maintain in the Borough of Manhattan, The City of New York, an office or
agency (which may be an office of the Trustee or an affiliate of the Trustee,
Registrar or co-registrar) where Notes may be surrendered for registration of
transfer or for exchange and where notices and demands to or upon the Issuer in respect of the Notes and
this Indenture may be served.  The Issuer shall give prompt written
notice to the Trustee of the location, and any change in the location, of such
office or agency.  If at any time the Issuer shall fail to maintain any
such required office or agency or shall fail to furnish the Trustee with the
address thereof, such presentations, surrenders, notices and demands may be
made or served at the Corporate Trust Office.


 


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


 


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The Issuer shall give prompt written
notice to the Trustee of any such designation or rescission and of any change
in the location of any such other office or agency.


 


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


 


Section 4.3                                      COMMISSION REPORTS AND REPORTS TO
HOLDERS


 


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


 


Section 4.4                                      COMPLIANCE CERTIFICATE


 


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


 


58

















 


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


 


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


 


Section 4.5                                      TAXES


 


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


 


Section 4.6                                      STAY, EXTENSION AND USURY LAWS


 


The Issuer covenants (to the extent that it may lawfully do so) that it
shall not at any time insist upon, plead, or in any manner whatsoever claim or
take the benefit or advantage of, any stay, extension or usury law wherever
enacted, now or at any time hereafter in force, that may affect the covenants
or the performance of this Indenture; and the Issuer (to the extent that it may
lawfully do so) hereby expressly waives all benefit or advantage of any such
law, and covenants that it shall not, by resort to any such law, hinder, delay
or impede the execution of any power herein granted to the Trustee, but shall
suffer and permit the execution of every such power as though no such law has
been enacted.


 


	
  Section 4.7

  	
  LIMITATION ON INCURRENCE OF ADDITIONAL
  INDEBTEDNESS AND DISQUALIFIED CAPITAL STOCK

  



 


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


 


Notwithstanding the foregoing, if:


 


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


 


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


 


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


 


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


 


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


 


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


 


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Section 4.8                                      LIMITATION ON LIENS SECURING
INDEBTEDNESS


 


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


 


Section 4.9                                      LIMITATION ON RESTRICTED PAYMENTS


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


62

















 


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


 


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


 


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


 


(4)                                  a Qualified Exchange,


 


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


 


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


 


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


 


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


 


63

















 


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


 


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


 


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


 


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


 


Section 4.10                                LIMITATION ON DIVIDEND AND OTHER
PAYMENT RESTRICTIONS AFFECTING SUBSIDIARIES


 


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


 


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


 


64

















 


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


 


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


 


(3)                                  existing restrictions
under Existing Indebtedness,


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


65

















 


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


 


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


 


Section 4.11                                LIMITATION ON IMPAIRMENT OF
SECURITY INTERESTS


 


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


 


Section 4.12                                LIMITATION ON TRANSACTIONS WITH
AFFILIATES


 


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


 


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


 


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


 


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


 


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Section 4.13                                LIMITATION ON SALE OF ASSETS AND
SUBSIDIARY STOCK


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


Section 4.15                                SUBSIDIARY GUARANTORS


 


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


 


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


 


Section 4.16                                LIMITATION ON STATUS AS INVESTMENT
COMPANY


 


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


 


Section 4.17                                MAINTENANCE OF PROPERTIES AND
INSURANCE


 


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


 


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Section 4.18                                CORPORATE EXISTENCE


 


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


 


Section 4.19                                LIMITATION ON LINES OF BUSINESS


 


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


 


Section 4.20                                RULE 144A INFORMATION


 


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


 


Section 4.21                                ADDITIONAL COLLATERAL


 


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


 


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


 


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


 


73

















 


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


 


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


 


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


 


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


 


ARTICLE V

SUCCESSORS


 


Section 5.1                                      LIMITATION ON MERGER, SALE OR CONSOLIDATION


 


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


 


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


 


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


 


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


 


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


 


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


 


Section 5.2                                      SUCCESSOR CORPORATION SUBSTITUTED


 


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


 


75

















 


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


 


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


 


ARTICLE VI

DEFAULTS AND REMEDIES


 


Section 6.1                                      EVENTS OF DEFAULT


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


Section 6.2                                      ACCELERATION


 


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


 


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


 


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


 


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


 


Section 6.3                                      OTHER
REMEDIES


 


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


 


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


 


Section 6.4                                      WAIVER
OF DEFAULTS


 


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


 


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


 


Section 6.5                                      CONTROL
BY MAJORITY


 


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


 


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


 


Section 6.6                                      LIMITATION
ON SUITS 


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


Section 6.7                                      RIGHTS
OF HOLDERS OF NOTES TO RECEIVE PAYMENT


 


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


 


Section 6.8                                      COLLECTION
SUIT BY TRUSTEE


 


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


 


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


 


Section 6.9                                      TRUSTEE
MAY FILE PROOFS OF CLAIM


 


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


 


Section 6.10                                PRIORITIES


 


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


 


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


 


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


 


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


 


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


 


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


 


Section 6.11                                UNDERTAKING
FOR COSTS


 


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


 


ARTICLE VII

TRUSTEE


 


Section 7.1                                      DUTIES
OF TRUSTEE


 


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


 


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


 


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


 


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


 


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


 


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


 


(i)            this paragraph
(c) does not limit the effect of paragraph (b) of this Section 7.1;


 


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


 


(iii)          the Trustee shall
not be liable with respect to any action it takes or omits to take in good
faith in accordance with a direction received by it pursuant to
Section 6.5 hereof; and


 


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


 


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


 


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


 


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


 


Section 7.2                                      RIGHTS
OF TRUSTEE


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


Section 7.3                                      INDIVIDUAL
RIGHTS OF TRUSTEE


 


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


 


Section 7.4                                      TRUSTEE’S
DISCLAIMER


 


The Trustee shall not be responsible for and makes no representation as
to the validity or adequacy of this Indenture or the Notes, it shall not be
accountable for the Issuer’s use of the proceeds from the Notes or any money
paid to the Issuer
or upon the Issuer’s direction under any provision of this Indenture, it shall
not be responsible for the use or application of any money received by any
Paying Agent other than the Trustee, and it shall not be responsible for any
statement or recital herein or any statement in the Notes or any other document
in connection with the sale of the Notes or pursuant to this Indenture other
than its certificate of authentication.


 


Section 7.5                                      NOTICE
OF DEFAULTS


 


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


 


Section 7.6                                      REPORTS
BY TRUSTEE TO HOLDERS OF THE NOTES


 


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


 


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


 


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


 


Section 7.7                                      COMPENSATION
AND INDEMNITY


 


The Issuer
shall pay to the Trustee from time to time such compensation as the parties
shall agree in writing from time to time for its acceptance of this Indenture
and services hereunder.  The Trustee’s
compensation shall not be limited by any law on compensation of a trustee of an
express trust.  The Issuer shall reimburse the Trustee
promptly upon request for all reasonable disbursements, advances and expenses
incurred or made by it in addition to the compensation for its services.  Such expenses shall include the reasonable
compensation, disbursements and expenses of the Trustee’s agents and counsel.


 


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


 


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


 


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


 


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


 


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


 


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


 


Section 7.8                                      REPLACEMENT
OF TRUSTEE


 


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


 


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


 


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


 


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


 


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


 


(d)           the Trustee becomes incapable of
acting.


 


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


 


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


 


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


 


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


 


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


 


Section 7.9                                      SUCCESSOR
TRUSTEE BY MERGER, ETC.


 


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


 


Section 7.10                                ELIGIBILITY;
DISQUALIFICATION


 


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


 


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


 


Section 7.11                                PREFERENTIAL
COLLECTION OF CLAIMS AGAINST ISSUER


 


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


 


ARTICLE VIII

LEGAL DEFEASANCE AND COVENANT DEFEASANCE


 


Section 8.1                                      OPTION
TO EFFECT LEGAL DEFEASANCE OR COVENANT DEFEASANCE


 


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


 


Section 8.2                                      LEGAL
DEFEASANCE 


 


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


 


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


 


Section 8.3                                      COVENANT
DEFEASANCE 


 


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


 


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


 


Section 8.4                                      CONDITIONS
TO LEGAL OR COVENANT DEFEASANCE


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


	
  Section 8.5

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

  



 


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


 


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


 


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


 


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


 


Section 8.6                                      REPAYMENT
TO ISSUER


 


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


 


Section 8.7                                      REINSTATEMENT


 


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


 


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Section 8.8                                      SATISFACTION
AND DISCHARGE


 


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


 


(a)                                  all
the Notes previously authenticated and delivered (except lost, stolen or
destroyed Notes which have been replaced and Notes for whose payment money has
theretofore been deposited with the Trustee or the paying agent in trust or
segregated and held in trust by the Issuer and thereafter repaid to the Issuer
or a Guarantor) have been delivered to the Trustee for cancellation, or 


 


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


 


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


 


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


 


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


 


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


 


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


 


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ARTICLE IX
AMENDMENT,
SUPPLEMENT AND WAIVER


 


Section 9.1                                      WITH
CONSENT OF HOLDERS OF A MAJORITY


 


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


 


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


 


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


 


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


 


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


 


(2)           change the Stated Maturity on any
Note, 


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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Section 9.3                                      WITHOUT
CONSENT OF HOLDERS OF NOTES


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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



 


Section 9.4                                      CONSENT
PAYMENT; SUPPLEMENTAL INDENTURES


 


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


 


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


 


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


 


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


 


Section 9.5                                      REVOCATION
AND EFFECT OF CONSENTS


 


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


 


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


 


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


 


Section 9.6                                      NOTATION
ON OR EXCHANGE OF NOTES


 


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


 


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


 


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


 


Section 9.7                                      TRUSTEE
TO SIGN AMENDMENTS, ETC.


 


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


 


Section 9.8                                      COMPLIANCE
WITH TRUST INDENTURE ACT


 


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


 


ARTICLE X

COLLATERAL AND SECURITY


 


Section 10.1                                COLLATERAL
AGREEMENTS; SECURITY INTERESTS.


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


Section 10.2                                FURTHER
ASSURANCES AND SECURITY.


 


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


 


Section 10.3                                OPINIONS.


 


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


 


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


 


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


 


Section 10.4                                RELEASE
OF COLLATERAL.


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


Section 10.5                                CERTIFICATES
OF THE ISSUER.


 


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


 


	
  Section 10.6

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

  



 


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


 


102

















 


to restrain the enforcement of or compliance
with any legislative or other governmental enactment, rule or order that may be
unconstitutional or otherwise invalid if the enforcement of, or compliance
with, such enactment, rule or order would impair the security interest
hereunder or be prejudicial to the interests of the Holders or the Trustee).


 


	
  Section 10.7

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

  



 


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


 


ARTICLE XI

GUARANTEES


 


Section 11.1                                GUARANTEES


 


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


 


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


 


103

















 


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


 


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


 


Section 11.2                                EXECUTION
AND DELIVERY OF GUARANTEES


 


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


 


104

















 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


105

















 


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


 


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


 


Section 11.4                                GUARANTEE
BY FUTURE SUBSIDIARIES


 


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


 


Section 11.5                                RELEASE
OF GUARANTORS


 


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


 


106

















 


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


 


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


 


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


 


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


 


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


 


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


 


107

















 


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


 


Section 11.7                                APPLICATION
OF CERTAIN TERMS AND PROVISIONS TO THE GUARANTORS


 


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


 


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


 


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


 


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


 


ARTICLE XII

MISCELLANEOUS


 


Section 12.1                                TRUST
INDENTURE ACT CONTROLS


 


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


 


Section 12.2                                NOTICES


 


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


 


	
  If to the
  Issuer

  or the Guarantors:

  
	
   

  
	
   

  	
  The Wornick
  Company

  
	
   

  	
  3900 North
  10th Street

  
	
   

  	
  Suite 900

  



 


108

















 


	
   

  	
  McAllen,
  Texas 78501

  
	
   

  	
  Attention:  Chief Executive Officer

  
	
   

  	
  Telecopier
  No.: (956) 882-7816

  
	
   

  
	
  with copies (which
  

  shall not constitute

  notice) to:

  
	
   

  
	
   

  	
  Veritas
  Capital Management II, L.L.C.

  
	
   

  	
  660 Madison
  Avenue

  
	
   

  	
  New York,
  New York 10022

  
	
   

  	
  Attention:
  Robert B. McKeon

  
	
   

  	
  Telecopier
  No.: (212) 688-9411

  
	
   

  
	
   

  	
  Schulte,
  Roth & Zabel LLP

  
	
   

  	
  919 Third
  Avenue

  
	
   

  	
  New York, New
  York 10022

  
	
   

  	
  Attention:  Benjamin M. Polk, Esq.

  
	
   

  	
  Telecopier
  No.: (212) 593-5955

  
	
   

  
	
   

  	
  Winston
  & Strawn LLP

  
	
   

  	
  200 Park
  Avenue

  
	
   

  	
  New York,
  New York 10166

  
	
   

  	
  Attention:
  David A. Sakowitz, Esq.

  
	
   

  	
  Telecopier
  No.: (212) 294-4700

  
	
   

  
	
  If to the
  Trustee:

  
	
   

  
	
   

  	
  U.S. Bank
  National Association

  
	
   

  	
  60 Livingston Avenue

  
	
   

  	
  St. Paul, Minnesota 55107-2292

  
	
   

  	
  Attention: Frank Leslie

  
	
   

  	
  Telecopier No.: (651)
  495-8097

  



 


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


 


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


 


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


 


109

















 


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


 


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


 


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


 


	
  Section 12.3

  	
  COMMUNICATION BY HOLDERS OF NOTES WITH
  OTHER HOLDERS OF NOTES 

  



 


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


 


	
  Section 12.4

  	
  CERTIFICATE AND OPINION AS TO CONDITIONS
  PRECEDENT

  



 


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


 


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


 


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


 


	
  Section 12.5

  	
  STATEMENTS REQUIRED IN CERTIFICATE OR
  OPINION

  



 


Each certificate or opinion with respect to compliance with a condition
or covenant provided for in this Indenture (other than a certificate provided
pursuant to TIA § 314(a)(4)) shall include: 


 


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


 


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


 


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


 


110

















 


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


 


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


 


Section 12.6                                RULES
BY TRUSTEE AND AGENTS


 


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


 


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


 


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


 


Section 12.8                                GOVERNING
LAW


 


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


 


Section 12.9                                NO
ADVERSE INTERPRETATION OF OTHER AGREEMENTS


 


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


 


Section 12.10                          SUCCESSORS


 


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


 


111

















 


	
  Section 12.11

  	
  SEVERABILITY

  



 


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


 


	
  Section 12.12

  	
  COUNTERPART ORIGINALS

  



 


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


 


	
  Section 12.13

  	
  TABLE OF CONTENTS,  HEADINGS, ETC.

  



 


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


 


	
  Section 12.14

  	
  INTERCREDITOR AGREEMENT

  



 


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


 


[Signatures on following page]


 


112

















 


SIGNATURES


 


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


 


	
   

  	
  THE ISSUER:

  
	
   

  	
   

  
	
   

  	
  THE WORNICK
  COMPANY

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Robert
  B. McKeon

  	
   

  
	
   

  	
   

  	
  Name: Robert B. McKeon

  
	
   

  	
   

  	
  Title: Chairman of the Board

  
	
   

  	
   

  
	
   

  	
  GUARANTORS:

  
	
   

  	
   

  
	
   

  	
  RIGHT AWAY MANAGEMENT

  CORPORATION

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Robert B. McKeon

  	
   

  
	
   

  	
   

  	
  Name: Robert B. McKeon

  
	
   

  	
   

  	
  Title: Chairman of the Board

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  THE WORNICK COMPANY RIGHT

  AWAY DIVISION

  
	
   

  	
   

  
	
   

  	
  By:

  
	
   

  	
   

  	
  /s/ Robert B. McKeon

  	
   

  
	
   

  	
   

  	
  Name: Robert
  B. McKeon

  
	
   

  	
   

  	
  Title:
  Chairman of the Board

  
	
   

  	
   

  
	
   

  	
  THE WORNICK COMPANY RIGHT

  AWAY DIVISION, L.P.

  
	
   

  	
   

  
	
   

  	
  By:

  
	
   

  	
   

  	
  Right Away Management Corporation, its

  General Partner

  
	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
  /s/ Robert B. McKeon

  	
   

  
	
   

  	
   

  	
  Name: Robert
  B. McKeon

  
	
   

  	
   

  	
  Title:
  Chairman of the Board

  
	
   

  	
   

  
							



 

















 


	
   

  	
  THE TRUSTEE:

  
	
   

  	
   

  
	
   

  	
  U.S. BANK
  NATIONAL ASSOCIATION

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Richard
  H. Prokosch

  	
   

  
	
   

  	
   

  	
  Name: Richard H. Prokosch

  
	
   

  	
   

  	
  Title: Vice President

  



 

















 


EXHIBIT
A


 


[FORM OF NOTE]


 


THE WORNICK COMPANY


 


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

DUE 2011


 


	
   

  	
   

  	
  CUSIP:

  
	
   

  	
   

  	
  ISIN:

  
	
  No.

  	
   

  	
  $

  



 


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


 


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


 


Record Dates:
January 1 and July 1.


 


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


 


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


 












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


 


A-1

















 


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


 


	
   

  	
  THE WORNICK COMPANY,

  
	
   

  	
  a Delaware corporation

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  



 

















 


TRUSTEE’S
CERTIFICATE OF AUTHENTICATION


 


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


 


	
   

  	
  U.S BANK NATIONAL ASSOCIATION

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
   

  	
  Authorized Signatory

  
	
   

  	
   

  
	
   

  	
   

  
	
  Dated:

  	
   

  	
   

  	
   

  
						



 

















 


(Reverse of
Note)


 


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


 


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


 


[UNLESS AND UNTIL IT IS EXCHANGED IN WHOLE OR IN PART FOR NOTES IN
DEFINITIVE FORM, THIS NOTE MAY NOT BE TRANSFERRED EXCEPT AS A WHOLE BY THE
DEPOSITARY TO A NOMINEE OF THE DEPOSITARY, OR BY A NOMINEE OF THE DEPOSITARY,
TO THE DEPOSITARY OR ANOTHER NOMINEE OF THE DEPOSITARY OR BY THE DEPOSITARY OR
ANY SUCH NOMINEE TO A SUCCESSOR DEPOSITARY OR A NOMINEE OF SUCH SUCCESSOR
DEPOSITARY.  UNLESS THIS CERTIFICATE IS
PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY (55
WATER STREET, NEW YORK, NEW YORK) (“DTC”), TO THE ISSUER OR THEIR AGENT FOR
REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS
REGISTERED IN THE NAME OF CEDE & CO. OR SUCH OTHER NAME AS MAY BE REQUESTED
BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE &
CO. OR SUCH OTHER ENTITY AS MAY BE REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF
DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO
ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO.,
HAS AN INTEREST HEREIN.](4)


 


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


 












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


 


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


 


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


 


A-3

















 


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


 


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


 












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


 


A-4

















 


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


 


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


 


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


 


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


 












(6)           To be included only on Transfer Restricted Notes


 


A-5

















 


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


 


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


 


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


 


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


 


5.             Optional Redemption.


 


(a)           The Issuer will not
have the right to redeem any Notes prior to July 15, 2008 (other than with Net
Cash Proceeds of a Qualified Equity Offering, as provided in (b)).  The Notes will be redeemable for cash at the
option of the Issuer, in whole or in part, on or after July 15, 2008 at the
following redemption prices (expressed as percentages of the principal amount)
if redeemed during the 12-month period commencing July 15 of the years
indicated below, in each case together with accrued and unpaid Interest (and
Liquidated Damages, if any) to the date of redemption of the Notes (the “Redemption Date”):


 


 


	
  Year

  	
   

  	
  Percentage

  	
   

  
	
  2008

  	
   

  	
  105.438

  	
  %

  
	
  2009

  	
   

  	
  102.719

  	
  %

  
	
  2010 and thereafter

  	
   

  	
  100.000

  	
  %

  



 


(b)           Notwithstanding
the provisions of clause (a) of this Section 5, at any time on or prior to
July 15, 2007, upon a Qualified Equity Offering, up to 35% of the aggregate
principal amount of the Notes originally issued pursuant to the Indenture may
be redeemed at the Issuer’s option within 90 days of such Qualified Equity
Offering, with cash received by the Issuer from the Net Cash Proceeds of such
Qualified Equity Offering, at a redemption price equal to 110.875% of principal
amount thereof, together with accrued and unpaid Interest (and Liquidated
Damages, if any) to the Redemption Date; provided,
however, that immediately following such redemption not less than
65%


 


A-6

















 


of the aggregate principal
amount of the Notes originally issued pursuant to the Indenture on the Issue
Date remain outstanding.


 


(c)           Notice
of redemption shall be mailed by first class mail at least 30 days but not more
than 60 days before the Redemption Date to each Holder whose Notes are to be
redeemed at its registered address. 
Notes in denominations larger than $1,000 may be redeemed in part but
only in integral multiples of $1,000, unless all of the Notes held by a Holder
are to be redeemed.  On and after the
Redemption Date, Interest ceases to accrue on Notes or portions thereof called
for redemption unless the Issuer defaults in such payments due on the
redemption date.


 


6.             Mandatory Redemption.  The Issuer shall not be required to make
mandatory redemption payments with respect to the Notes.  The Notes shall not have the benefit of any
sinking fund.


 


7.             Offers to Purchase.


 


(a)           Change of Control.  In the event that a Change of Control has occurred, each Holder of
Notes shall have the right, at such Holder’s option, pursuant to an offer
(subject only to conditions required by applicable law, if any) by the Issuer
(the “Change of Control Offer”),
to require the Issuer to repurchase all or any part of such Holder’s Notes (provided, that the principal amount of
such Notes must be $1,000 or an integral multiple thereof) on a date (the “Change of Control Purchase Date”) that is
no later than 60 days after the occurrence of such Change of Control, at a
cash price equal to 101% of the principal amount thereof (the “Change of Control Purchase Price”),
together with accrued and unpaid Interest (and Liquidated Damages, if any) to
the Change of Control Purchase Date. The Change of Control Offer shall be made
within 30 days following a Change of Control and shall remain open for at
least 30 days following its commencement (the “Change of Control Offer Period”). On the Change of Control
Purchase Date, to the extent lawful, the Issuer promptly shall purchase all
Notes properly tendered in response to the Change of Control Offer. 


 


On
or before the Change of Control Purchase Date, the Issuer shall: (i) accept
for payment Notes or portions thereof properly tendered pursuant to the Change
of Control Offer, (ii) deposit with the Paying Agent cash in an amount
sufficient to pay the Change of Control Purchase Price, together with accrued
and unpaid Interest (and Liquidated Damages, if any) to the Change of Control
Purchase Date of all Notes so tendered, and (iii) deliver to the Trustee
the Notes so accepted together with an Officers’ Certificate listing the Notes
or portions thereof being purchased by the Issuer.  The Paying Agent promptly shall pay each Holder of Notes so
accepted an amount equal to the Change of Control Purchase Price, together with
accrued and unpaid Interest (and Liquidated Damages, if any) to the Change of
Control Purchase Date, and the Trustee promptly shall authenticate and deliver
to such Holder a new Note equal in principal amount to any unpurchased portion
of the Note surrendered.  Any Notes not
so accepted shall be delivered promptly by the Issuer to the Holder
thereof.  The Issuer shall publicly
announce the results of the Change of Control Offer on or as soon as
practicable after the Change of Control Purchase Date. 


 


A-7

















 


(b)           Asset
Sale.  Subject to certain
exceptions set forth in the Indenture, the Issuer shall not and the Guarantors
shall not, and neither the Issuer nor the Guarantors shall permit any of the
Subsidiaries to, in one or a series of related transactions, make any Asset
Sale unless, with respect to any Asset Sale or related series of Asset Sales
involving securities, property or assets (i) at least 75% of the total
consideration for such Asset Sale or series of related Asset Sales consists of
cash or Cash Equivalents, and (ii) with respect to any Asset Sale or related
series of Asset Sales involving a conveyance, sale, transfer, assignment or
other disposition of securities, property or assets with an aggregate fair
market value in excess of $2,000,000, management determines in reasonable good
faith that the Issuer shall receive or such Subsidiary shall receive, as
applicable, fair market value for such Asset Sale, and (iii) with respect
to any Asset Sale or related series of Asset Sales involving a conveyance,
sale, transfer, assignment or other disposition of securities, property or
assets with an aggregate fair market value in excess of $5,000,000, the
Issuer’s Board of Directors determines in reasonable good faith that the Issuer
will receive or such Subsidiary shall receive, as applicable, fair market value
for such Asset Sale.  For purposes of
clause (i) of the preceding sentence the following shall be deemed to
constitute cash or Cash Equivalents: (a) the amount of any Indebtedness or
other liabilities of the Issuer or such Subsidiary (other than Indebtedness or
liabilities that are by their terms subordinated to the Notes and the
Guarantees) that are assumed by the transferee of any such assets so long as
the documents governing such liabilities provide that there is no further
recourse to the Issuer or any of its Subsidiaries with respect to such
liabilities and (b) fair market value of any marketable securities,
currencies, notes or other obligations received by the Issuer or any such
Subsidiary in exchange for any such assets that are converted into cash or Cash
Equivalents within 90 days after the consummation of such Asset Sale, provided, that such cash and Cash
Equivalents shall be treated as Net Cash Proceeds attributable to the original
Asset Sale for which such property was received. 


 


Within
360 days following such Asset Sale, the Net Cash Proceeds therefrom (the “Asset Sale Amount”) shall be: (a)
(i) used to retire Purchase Money Indebtedness secured by the asset which
was the subject of the Asset Sale, or (ii) used to retire and permanently
reduce Indebtedness incurred under the Credit Agreement; provided, that in the
case of a revolver or similar arrangement that makes credit available, such
commitment is permanently reduced by such amount; or (b) invested in
assets or property (other than notes, bonds, obligations and securities, except
in connection with the acquisition of a Person in a Related Business which
immediately following such acquisition becomes a Subsidiary and a Guarantor)
which in the reasonable good faith judgment of the Issuer’s Board of Directors
will immediately constitute or be a part of a Related Business of the Issuer or
such Subsidiary (if it continues to be a Subsidiary) immediately following such
transaction; or (c) any combination of (a) or (b).  All Net Cash Proceeds from an Event of Loss
shall be used as follows: (1) first, the Issuer shall use such Net Cash
Proceeds to the extent necessary to rebuild, repair, replace or restore the
assets subject to such Event of Loss with comparable assets; and (2) then,
to the extent any Net Cash Proceeds from an Event of Loss are not used as
described in the preceding clause (1), all such remaining Net Cash Proceeds
shall be reinvested or used as provided in the immediately preceding clause
(a), (b) or (c). 


 


A-8

















 


The accumulated Net Cash Proceeds from Asset Sales not applied as set
forth in clause (a), (b) or (c) of the immediately preceding paragraph and
the accumulated Net Cash Proceeds from any Event of Loss not applied as set
forth in clause (1) or (2) of the immediately preceding paragraph shall
constitute “Excess
Proceeds.” Pending the final application of any Net Cash
Proceeds,  the Issuer may temporarily
reduce revolving credit borrowings or otherwise invest or use for general
corporate purposes (other than Restricted Payments that are not solely
Restricted Investments) the Net Cash Proceeds in any manner that is not
prohibited by the Indenture; provided, however, that the Issuer may not
use the Net Cash Proceeds to make Restricted Payments other than Restricted
Payments that are solely Restricted Investments or to make Permitted
Investments pursuant to clause (a) of the definition thereof.  When the Excess Proceeds equal or exceed
$5,000,000,  the Issuer shall offer to
repurchase the Notes, together with any other Indebtedness ranking on a parity
with the Notes and with similar provisions requiring the Issuer to make an
offer to purchase such Indebtedness with the proceeds from such Asset Sale
pursuant to a cash offer (subject only to conditions required by applicable
law, if any), pro rata in proportion to the respective principal amounts
of such Indebtedness (or accreted values in the case of Indebtedness issued
with an original issue discount) and the Notes (the “Asset Sale Offer”) at a
purchase price of 100% of the principal amount (or accreted value in the case
of Indebtedness issued with an original issue discount) (the “Asset Sale
Offer Price”) together with accrued and unpaid Interest (and
Liquidated Damages, if any) to the date of payment.  In order to effect the Asset Sale Offer,  the Issuer shall promptly after expiration
of the 360-day period following the Asset Sale that produced such Excess
Proceeds mail to each Holder of Notes notice of the Asset Sale Offer (the “Asset Sale
Notice”), offering to purchase the Notes on a date (the “Asset Sale
Purchase Date”) that is no earlier than 30 days and no later
than 60 days after the date that the Asset Sale Notice is mailed, pursuant
to the procedures required by the Indenture and described in the Asset Sale
Notice.  On the Asset Sale Purchase
Date,  the Issuer shall apply an amount
equal to the Excess Proceeds (the “Asset Sale Offer Amount”) to the purchase
of all Indebtedness properly tendered in accordance with the provisions of this
Section 7(b) (on a pro rata basis if the Asset Sale Offer
Amount is insufficient to purchase all Indebtedness so tendered) at the Asset
Sale Offer Price, together with accrued and unpaid Interest (and Liquidated
Damages, if any) to the date of payment. 
To the extent that the aggregate amount of Notes and such other pari passu
Indebtedness tendered pursuant to an Asset Sale Offer is less than the Asset
Sale Offer Amount, the Issuer may use any remaining Net Cash Proceeds as
otherwise permitted by the Indenture. 
Following the consummation of each Asset Sale Offer in accordance with
the provisions of this Section 7(b), the Excess Proceeds amount shall be reset
to zero. 


 


(c)           Within 90 days after the end of each
fiscal year, the Issuer shall make an offer to all Holders (the “Excess Cash Flow Offer”) to purchase the
maximum principal amount of Notes that is an integral multiple of $1,000 with
50% of the Issuer’s Excess Cash Flow from such fiscal year (measured from the
Issue Date in the case of the fiscal year in which the Issue Date occurs) (the
“Excess Cash Flow Offer Amount”),
at a purchase price in cash equal to 101% of the principal amount of the Notes
to be purchased (the “Excess Cash Flow
Purchase Price”), together with accrued and unpaid Interest (and
Liquidated Damages, if any) to the date fixed for the purchase of the Notes
pursuant to


 


A-9

















 


such
Excess Cash Flow Offer; provided,
however, that the Excess Cash
Flow Offer Amount for a fiscal year shall be reduced by the aggregate principal
amount of Notes purchased by the Issuer in the open market during such fiscal
year and during the period prior to the date of such Excess Cash Flow Offer,
but only to the extent that such principal amount was not taken into account in
reducing the Excess Cash Flow Offer Amount for any prior periods. 


 


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


 


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


 


Any
Excess Cash Flow Offer shall be made in compliance with all applicable laws,
rules and regulations, including, if applicable, Regulation 14E under the
Exchange Act and the rules and regulations thereunder and all other applicable
federal and state securities laws. To the extent that the provisions of any securities
laws or regulations conflict with the provisions of this Section 7, the
Issuer’s compliance or the compliance of any of the Subsidiaries with such laws
and regulations will not in and of itself cause a breach of the Issuer’s
obligations under this Section 7. 


 


8.             Denominations, Transfer, Exchange.  The Notes are in registered form without
coupons in denominations of $1,000 and integral multiples of $1,000.  The transfer of Notes may be registered and
Notes may be exchanged as provided in the Indenture.  The Registrar and the Trustee may require a Holder, among other
things, to furnish appropriate endorsements and transfer documents, and the
Issuer may require a Holder to pay any taxes and fees required by law or
permitted by the Indenture.  The Issuer
need not exchange or register the transfer of any Note or portion of a Note
selected for redemption, except for the unredeemed portion of any Note being
redeemed in part.  Also, it need not
exchange or register the transfer of any Notes for a period of 15 days before a
selection of Notes to be redeemed or during the period between an Interest
Record Date and the corresponding Interest Payment Date.


 


9.             Persons Deemed Owners.  The registered Holder of a Note may be
treated as its owner for all purposes.


 


A-10

















 


10.           Amendment, Supplement, Modification and Waiver.  


 


(a)           Subject to certain
exceptions, the Issuer, the Guarantors and the Trustee may amend, supplement or
otherwise modify the Indenture, the Notes, the Guarantees, the Intercreditor
Agreement (subject to any required approval of the lenders under the Credit
Agreement party thereto) and the Collateral Agreements, with the consent of the
Holders of a majority in aggregate principal amount of the Notes then
outstanding (including, without limitation, consents obtained in connection
with a purchase of, or tender offer or exchange offer for, the Notes), and,
subject to Sections 6.4 and 6.7 of the Indenture, any existing Default or
Event of Default (other than a Default or Event of Default in the payment of
the principal of or premium, if any, or Interest on the Notes, except a payment
default resulting from an acceleration that has been rescinded) or compliance
with any provision of the Indenture, the Notes, the Guarantees, the
Intercreditor Agreement (subject to any required approval of the lenders under
the Credit Agreement party thereto) and the Collateral Agreements may be waived
with the consent of the Holders of a majority in aggregate principal amount of
the Notes then outstanding (including, without limitation, consents obtained in
connection with a purchase of, or tender offer or exchange offer for, the
Notes).  Without the consent of the
Holders, the Issuer, the Guarantors and the Trustee may amend, modify or
supplement the Indenture, the Notes, the Guarantees, the Intercreditor
Agreement and the Collateral Agreements to cure any ambiguity, defect or
inconsistency, to provide for uncertificated Notes in addition to or in place
of certificated Notes, to provide for the assumption of any of the Issuer’s or
the Guarantors’ obligations to Holders in the case of a merger or consolidation
or a sale of all or substantially all of the Issuer’s assets in accordance with
the Indenture, to evidence the release of any Guarantor permitted to be
released under the terms of the Indenture or to evidence the addition of any
new Guarantor, to comply with requirements of the Commission in order to effect
or maintain the qualification of the Indenture under the Trust Indenture Act,
to comply with the provisions of DTC or the Trustee with respect to the
provisions of the Indenture and the Notes relating to transfers and exchanges
of Notes or beneficial interests therein, to make any change that would provide
any additional rights or benefits to the Holders or that does not adversely
affect the rights of any Holder of Notes under the Indenture, the Notes, the
Guarantees, the Intercreditor Agreement, the Collateral Agreements or the
Registration Rights Agreement, or         to
provide for the issuance of Additional Notes in accordance with the limitations
set forth in the Indenture as of the date thereof. 


 


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


 


11.           Defaults
and Remedies.   Each of the
following constitutes an Event of Default: (a) the Issuer’s failure to pay
any installment of Interest (or Liquidated Damages, if any) on the Notes as and
when the same becomes due and payable and the continuance of any such failure
for 30 days, (b) the Issuer’s failure to pay all or any part of the
principal of or premium, if any, on the Notes when and as the same becomes due


 


A-11

















 


and
payable at maturity, redemption, by acceleration or otherwise, including,
without limitation, payment of the Change of Control Purchase Price, the Asset
Sale Offer Price or the Excess Cash Flow Purchase Price, on Notes validly
tendered and not properly withdrawn pursuant to a Change of Control Offer,
Asset Sale Offer or Excess Cash Flow Offer, as applicable, (c) the
Issuer’s failure or the failure by any of the Guarantors or any of the
Subsidiaries to observe or perform any other covenant or agreement contained in
the Notes or the Indenture (excluding the covenant set forth in the next to
last sentence of Section 4.3 of the Indenture) and, except for the provisions
under Sections 4.13, 4.14, 4.22 and 5.1 of the Indenture, the continuance
of such failure for a period of 30 days after the earlier of the Issuer’s
receipt of written notice of such Default from the Trustee or from the Holders
of at least 25% in aggregate principal amount of the Notes outstanding,
(d) a default occurs (after giving effect to any waivers, amendments,
applicable grace periods or any extension of any maturity date) in the Issuer’s
Indebtedness or the Indebtedness of the Guarantors or any of the Subsidiaries
with an aggregate amount outstanding in excess of $5,000,000 (x) resulting
from the failure to pay principal of such Indebtedness at maturity, or (y) if
as a result of such default, the maturity of such Indebtedness has been
accelerated prior to its stated maturity, (e) final, non-appealable
unsatisfied judgments not covered by insurance aggregating in excess of
$5,000,000 at any one time rendered against the Issuer, or any of the
Guarantors or any of the Subsidiaries and not stayed, bonded or discharged
within 60 days, (f) any Guarantee of a Guarantor ceases to be in full
force and effect or becomes unenforceable or invalid or is declared null and
void (other than in accordance with the terms of the Guarantee and the
Indenture) or any Guarantor denies or disaffirms its Obligations under its
Guarantee, (g) any failure to comply with any material agreement or
material covenant in any of the Collateral Agreements, and such failure or
breach shall continue for a period of 30 days after written notice is
given to the Issuer by the Trustee, or to the Issuer and the Trustee by the
Holders of at least 25% in aggregate principal amount of the Notes outstanding,
(h) any of the Collateral Agreements at any time for any reason ceases to
be in full force and effect, or is declared null and void, or shall cease to be
effective in all material respects to give the Trustee the Liens with the
priority purported to be created thereby (subject to the Intercreditor
Agreement) subject to no other Liens (in each case, other than as expressly
permitted by the Indenture and the applicable Collateral Agreement, or by
reason of the termination of the Indenture or the applicable Collateral Agreement
in accordance with its terms), (i) a court having jurisdiction in the
premises enters a decree or order for (A) relief in respect of the Issuer,
any of the Guarantors, or any Significant Subsidiary in an involuntary case
under any applicable Bankruptcy Law now or hereafter in effect, (B) appointment
of a receiver, liquidator, assignee, custodian, trustee, sequestrator or
similar official of the Issuer, any of the Guarantors or any
Significant Subsidiary or for all or substantially all of the property and
assets of the Issuer, any of the Guarantors or any Significant
Subsidiary or (C) the winding up or liquidation of the affairs of the Issuer,
any of the Guarantors or any Significant Subsidiary and, in each case, such
decree or order shall remain unstayed and in effect for a period of 60
consecutive days, or (j) the Issuer, any of the
Guarantors or any Significant Subsidiary (A) commences a voluntary case under
any applicable Bankruptcy Law now or hereafter in effect, or consents to the
entry of an order for relief in an involuntary case under any such law, (B)
consents to the appointment of or taking possession by a receiver,


 


A-12



















 


liquidator, assignee,
custodian, trustee, sequestrator or similar official of the Issuer, any of the Guarantors or any
Significant Subsidiary or for all or substantially all of the property and
assets of the Issuer, any of the
Guarantors or any Significant Subsidiary or (C) effects any general assignment
for the benefit of creditors. 


 


12.                                 Trustee Dealings
with Issuer.  The Trustee, in its individual or any other
capacity, may make loans to, accept deposits from, and perform services for the
Issuer or their Affiliates, and may otherwise deal with the Issuer or their
Affiliates, as if it were not the Trustee.


 


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


 


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


 


15.                                 Abbreviations.  Customary abbreviations may be used in the name of a Holder or an
assignee, such as:  TEN COM (= tenants
in common), TEN ENT (= tenants by the entireties), JT TEN (= joint tenants with
right of survivorship and not as tenants in common), CUST (= Custodian), and
U/G/M/A (= Uniform Gifts to Minors Act).


 


16.                                 Additional Rights of Holders of Transfer Restricted
Notes.(7)  In addition to the
rights provided to Holders of Notes under the Indenture, Holders of Transfer
Restricted Notes shall have all the rights set forth in the Registration Rights
Agreement dated as of the date of the Indenture, by and among the Issuer, the
Guarantors and the Initial Purchaser (the “Registration
Rights Agreement”).


 


17.                                 CUSIP Numbers.  Pursuant to a recommendation promulgated by the Committee on
Uniform Security Identification Procedures, the Issuer has caused CUSIP numbers
to be printed on the Notes and the Trustee may use CUSIP numbers in notices of
redemption as a convenience to Holders.  No representation is made as to the accuracy of such numbers
either as printed on the Notes or as contained in any notice of redemption and
reliance may be placed only on the other identification numbers placed thereon,
and any such redemption shall not be affected by any defect in or omission of
such numbers.


 


18.                                 Notation of Guarantee.  As more fully set forth in the Indenture, to
the extent permitted by law, each of the Guarantors from time to time, in
accordance with Article XI of the Indenture, unconditionally and jointly and
severally guarantees, to each


 












(7)           To be included only on Transfer Restricted Notes.


 


A-13

















 


Holder of a Note authenticated
and delivered by the Trustee and to the Trustee and its successors and assigns,
that:


 


By its execution of its Guarantee, each of the Guarantors acknowledges
and agrees that it receives substantial benefits from the Issuer and that such
party is providing its Guarantee for good and valuable consideration, including,
without limitation, such substantial benefits and services.  Accordingly, subject to the provisions of
Article XI of the Indenture, each Guarantor, jointly and severally, irrevocably
hereby unconditionally guarantees on a senior secured basis to each Holder of a
Note authenticated and delivered by the Trustee and its successors and assigns
the Guarantee Obligations, which include: (i) the due and punctual payment
in full of the principal of and premium, if any, and Interest and Liquidated Damages,
if any, on the Notes, whether at maturity, by acceleration, call for
redemption, upon a Change of Control Offer, an Asset Sale Offer, an Excess Cash
Flow Offer, or otherwise, the due and punctual payment in full of the interest
on overdue principal of premium, if any, and Liquidated Damages, if any, and
(to the extent permitted by law) interest on any Interest on the Notes and the
due and punctual payment or performance, as applicable, of all other
obligations of the Issuer to the Holders or the Trustee under the Notes, the
Indenture, the Collateral Agreements and the Registration Rights Agreement
(including fees, expenses or other amounts) shall be promptly paid in full or
performed, all in accordance with the terms of the Indenture; and (ii) in
case of any extension of time of payment or renewal of any Notes or any of such
other obligations, that the same shall be promptly paid in full when due or
performed in accordance with the terms of the extension or renewal, whether at
stated maturity, by acceleration, call for redemption, upon a Change of
Control, an Asset Sale Offer, an Excess Cash Flow Offer, or otherwise, subject,
however, in the case of clauses (i) and (ii) above, to the limitations set
forth in Section 11.6 of the Indenture.


 


When a successor assumes all the obligations of its predecessor under
the Notes and the Indenture, the predecessor may be released from those
obligations.


 


19.                                 Governing Law.  THE INDENTURE, THE NOTES AND THE GUARANTEES SHALL BE GOVERNED BY
AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK APPLICABLE
TO CONTRACTS MADE AND TO BE PERFORMED IN THE STATE OF NEW YORK, INCLUDING,
WITHOUT LIMITATION, SECTIONS 5-1401 AND 5-1402 OF THE NEW YORK GENERAL
OBLIGATIONS LAW AND NEW YORK CIVIL PRACTICE LAWS AND RULES 327(B); PROVIDED,
THAT WITH RESPECT TO THE CREATION, ATTACHMENT, PERFECTION,  PRIORITY, ENFORCEMENT OF AND REMEDIES
RELATING TO THE SECURITY INTEREST IN ANY REAL PROPERTY COLLATERAL, THE
GOVERNING LAW MAY BE THE LAWS OF THE JURISDICTIONS WHERE SUCH COLLATERAL IS LOCATED
WITHOUT REGARD TO THE CONFLICT OF LAW PROVISIONS THEREOF.


 


20.                                 Security. 
This Note is Guaranteed and secured by substantially all of the assets
of the Issuer and the Subsidiaries, subject to certain exceptions and
limitations more fully set forth in the Indenture and Collateral Agreements.


 


A-14

















 


21.                                 Certificate And Opinion As To Conditions
Precedent.  Upon any request
or application by the Issuer to the Trustee to take any action under the
Indenture, the Issuer shall furnish to the Trustee (i) an Officers’ Certificate
in form and substance reasonably satisfactory to the Trustee (which shall
include the statements set forth in Section 12.5 of the Indenture) stating
that, in the opinion of the signers, all conditions precedent and covenants, if
any, provided for in the Indenture relating to the proposed action have been
satisfied; and (ii) an Opinion of Counsel in form and substance reasonably
satisfactory to the Trustee (which shall include the statements set forth in
Section 12.5 of the Indenture) stating that, in the opinion of such
counsel, all such conditions precedent and covenants have been satisfied.


 


The Issuer will furnish to any Holder upon written request and without
charge a copy of the Indenture and/or the Registration Rights Agreement.  Requests may be made to:


 


The Wornick Company

10825 Kenwood Road

Cincinnati, Ohio 45242

Attention: Secretary


 


A-15

















 


Assignment Form


 


To assign this
Note, fill in the form below: (I) or (We) assign and transfer this Note to 


 


	
   

  
	
  (Insert assignee’s soc. sec. or tax I.D. no.)

  
	
   

  
	
   

  
	
   

  
	
   

  
	
   

  
	
  (Print or
  type assignee’s name, address and zip code)

  
	
   

  
	
  and
  irrevocably appoint

  	
   

  	
   

  



 


to transfer
this Note on the books of the Issuer. 
The agent may substitute another to act for it.


 


	
  Date:

  	
   

  	
   

  
	
   

  
	
   

  	
  Your
  Signature:

  	
   

  
	
   

  	
  (Sign
  exactly as your name appears on the face of this Note)

  
						



 


Signature
Guarantee*


 


	
   

  



 


 












*NOTICE:  The Signature must be
guaranteed by an Institution which is a member of one of the following
recognized signature Guarantee Programs: (i) The Securities Transfer Agent
Medallion Program (STAMP); (ii) The New York Stock Exchange Medallion
Program (MNSP); (iii) The Stock Exchange Medallion Program (SEMP); or (iv) such
other guarantee program acceptable to the Trustee.


 


A-16

















 


Option of Holder to Elect Purchase


 


If you want to elect to have this Note purchased by the Issuer pursuant
to Section 4.13, 4.14 or 4.22 of the Indenture, check the box below:


 


	
  Section 4.13  o

  	
   

  	
  Section 4.14  o

  	
   

  	
  Section 4.22  o

  



 


If you want to elect to have only part of the Note purchased by the
Issuer pursuant to Section 4.13, 4.14 or 4.22 of the Indenture, state the
amount you elect to have purchased (in denominations of $1,000 only, except if
you have elected to have all of your Notes purchased): 
$                  


 


	
  Date:

  	
   

  	
   

  	
  Your
  Signature:

  	
   

  
	
   

  	
  (Sign
  exactly as your name appears on the Note)

  
						



 


Social Security or Tax
Identification
No.:                     


 


Signature
Guarantee*


 


	
   

  



 


 












*NOTICE:  The Signature must be
guaranteed by an Institution which is a member of one of the following
recognized signature Guarantee Programs: (i) The Securities Transfer Agent
Medallion Program (STAMP); (ii) The New York Stock Exchange Medallion
Program (MNSP); (iii) The Stock Exchange Medallion Program (SEMP); or
(iv)  such other guarantee program acceptable to the Trustee.


 


A-17

















 


SCHEDULE OF EXCHANGES OF INTERESTS IN THE GLOBAL NOTE(8)


 


The following exchanges of an interest in this Global Note for an
interest in another Global Notes or for a Definitive Note, or exchanges of an
interest in another Global Note or a Definitive Note for an interest in this
Global Note, have been made:


 


	
  Date of
  Exchange

  	
   

  	
  Amount of

  Decrease in

  Principal Amount of

  this Global Note

  	
   

  	
  Amount of

  Increase in

  Principal

  Amount of this

  Global Note

  	
   

  	
  Principal Amount of

  this Global Note

  Following Such

  Decrease or Increase

  	
   

  	
  Signature of

  Authorized Officer

  of

  Trustee or Note

  Custodian

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  



 


 












(8)                                  This
should be included only if the Note is issued in global form.


 


A-18

















 


GUARANTEE


 


Each entity listed on the signature page hereto (hereafter referred to
as a “Guarantor,” which term Guarantor includes any successors or assigns under
the Indenture, dated as of June 30, 2004, among the Issuer (defined below), the
Guarantors (as defined therein) and U.S. Bank National Association, as trustee
(the “Indenture”), as supplemented
by any supplemental indentures thereto), has executed either the Indenture or a
supplemental indenture in substantially the form attached as Exhibit E to
the Indenture and has irrevocably and unconditionally guaranteed on a senior
secured basis the Guarantee Obligations (as defined in Section 11.1 of the
Indenture), which include (i) the due and punctual payment in full of the
principal of and premium, if any, and Interest and Liquidated Damages, if any,
on the 107/8% Senior Secured Notes due 2011 (the “Notes”) of The Wornick Company, a Delaware
corporation (the “Issuer,” which
term includes any successors under the Indenture), whether at maturity, by
acceleration, call for redemption, upon a Change of Control Offer, an Asset
Sale Offer, an Excess Cash Flow Offer or otherwise, the due and punctual
payment of interest on overdue principal of and premium, if any, Liquidated
Damages, if any, and (to the extent permitted by law) interest on any Interest
on the Notes, and the due and punctual payment or performance, as applicable,
of all other obligations of the Issuer to the Holders or the Trustee under the
Notes, the Indenture, the Collateral Agreements and the Registration Rights
Agreement (including fees, expenses or other amounts), all in accordance with
the terms of the Indenture, and (ii) in case of any extension of time of
payment or renewal of any Notes or any such other obligations, that the same
shall be promptly paid in full when due or performed in accordance with the
terms of the extension or renewal, whether at stated maturity, by acceleration,
call for redemption, upon a Change of Control Offer, an Asset Sale Offer, an
Excess Cash Flow Offer or otherwise, subject, however, in the case of
clauses (i) and (ii) above, to the limitations set forth in
Section 11.6 of the Indenture.


 


The obligations of each Guarantor to the Holders and to the Trustee
pursuant to this Guarantee and the Indenture are expressly set forth in Article
XI of the Indenture and reference is hereby made to such Indenture for the
precise terms of this Guarantee.


 


No direct or indirect stockholder, employee,
officer or director, as such, past, present or future of the Issuer, the
Guarantors or any successor entity shall have any personal liability in respect
of the Issuer’s obligations or the obligations of the Guarantors under the
Indenture or the Notes solely by reason of his, her or its status as such
stockholder, employee, officer or director, except that this provision shall in
no way limit the obligation of any Guarantor pursuant to any Guarantee of the
Notes.


 


This is a continuing Guarantee and shall remain in full force and
effect and shall be binding upon each Guarantor and its successors and assigns
until full and final payment of all of the Issuer’s obligations under the Notes
and Indenture or until released or legally defeased in accordance with the
Indenture and shall inure to the benefit of the successors and assigns of the
Trustee and the Holders, and, in the event of any transfer or assignment of
rights by any Holder or the Trustee, the rights and


 


A-19

















 


privileges herein conferred
upon that party shall automatically extend to and be vested in such transferee
or assignee, all subject to the terms and conditions hereof.  This is a Guarantee of payment and
performance and not of collectibility.


 


This Guarantee shall not be valid or obligatory for any purpose until
the certificate of authentication on the Note upon which this Guarantee is
noted shall have been executed by the Trustee under the Indenture by the manual
signature of one of its authorized officers.


 


The obligations of each Guarantor under this Guarantee shall be limited
to the extent necessary to insure that it does not constitute a fraudulent
conveyance under applicable law.


 


THE TERMS OF ARTICLE XI OF THE INDENTURE ARE INCORPORATED HEREIN BY
REFERENCE.


 


Capitalized terms used herein have the same meanings given in the
Indenture unless otherwise indicated.


 


[signature
page follows]


 


A-20

















 


IN WITNESS WHEREOF, each Guarantor has caused this instrument to be
duly executed.


 


	
  Dated:

  	
   

  	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  [NAME OF GUARANTOR]

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  [NAME OF GUARANTOR]

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  [NAME OF GUARANTOR]

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  
						



 

















 


EXHIBIT B


 


FORM OF CERTIFICATE OF TRANSFER


 


The Wornick
Company

10825 Kenwood Road


Cincinnati,
Ohio 45242


 


U.S. Bank
National Association 


60 Livingston Avenue


St. Paul, Minnesota 55107-2292


 


Re: 107/8%
Senior Secured Notes due 2011


 


Dear Sirs:


 


Reference is
hereby made to the Indenture, dated as of June 30, 2004 (as it may be amended
or supplemented from time to time, the “Indenture”),
among The Wornick Company, a Delaware corporation (the “Issuer,” which term includes any
successors under the Indenture), the Guarantors party thereto and U.S. Bank
National Association, as trustee. 
Capitalized terms used but not defined herein shall have the meanings
given to them in the Indenture.  


 


                         ,
(the “Transferor”) owns and
proposes to transfer the Note[s] or interest in such Note[s] specified in Annex
A hereto, in the principal amount of
$                         
in such Note[s] or interests (the “Transfer”),
to
                      
(the “Transferee”), as further
specified in Annex A hereto.  In
connection with the Transfer, the Transferor hereby certifies that:


 


[CHECK ALL
THAT APPLY]


 


1.               o                                                     Check if Transferee will take
delivery of a beneficial interest in the 144A Global Note or of a Definitive Note
Pursuant to Rule 144A. 
The Transfer is being effected pursuant to and in accordance with
Rule 144A under the United States Securities Act of 1933, as amended (the
“Securities Act”), and,
accordingly, the Transferor hereby further certifies that the beneficial
interest or Definitive Note is being transferred to a Person that the
Transferor reasonably believed and believes is purchasing the beneficial
interest or Definitive Note for its own account, or for one or more accounts
with respect to which such Person exercises sole investment discretion, and
such Person and each such account is a “qualified institutional buyer” within
the meaning of Rule 144A in a transaction meeting the requirements of
Rule 144A and such Transfer is in compliance with any applicable blue sky
securities laws of any State of the United States.  Upon consummation of the proposed Transfer in accordance with the
terms of the Indenture, the transferred beneficial interest or Definitive Note
will be subject to the restrictions on transfer enumerated in the Private
Placement Legend printed on the 144A Global Note and/or the Definitive Note and
in the Indenture and the Securities Act.


 


B-1

















 


2.               o                                                     Check if Transferee will take
delivery of a beneficial interest in the Regulation S Global Note or of a
Definitive Note pursuant to Regulation S.  The Transfer is being effected pursuant to
and in accordance with Rule 903 or Rule 904 under the Securities Act
and, accordingly, the Transferor hereby further certifies that (i) the
Transfer is not being made to a Person in the United States and (x) at the time
the buy order was originated, the Transferee was outside the United States or
such Transferor and any Person acting on its behalf reasonably believed and
believes that the Transferee was outside the United States or (y) the
transaction was executed in, on or through the facilities of a designated
offshore securities market and neither such Transferor nor any Person acting on
its behalf knows that the transaction was prearranged with a buyer in the
United States, (ii) no directed selling efforts have been made in
contravention of the requirements of Rule 903(b) or Rule 904(b) of
Regulation S under the Securities Act, (iii) the transaction is not
part of a plan or scheme to evade the registration requirements of the
Securities Act and (iv) if the proposed transfer is being made prior to
the expiration of the Distribution Compliance Period, the transfer is not being
made to a U.S. Person or for the account or benefit of a U.S. Person (other
than an Initial Purchaser) and the interest transferred will be held
immediately thereafter through Euroclear or Clearstream.  Upon consummation of the proposed transfer
in accordance with the terms of the Indenture, the transferred beneficial
interest or Definitive Note will be subject to the restrictions on Transfer
enumerated in the Private Placement Legend printed on the Regulation S
Global Note and/or the Definitive Note and in the Indenture and the Securities
Act.


 


3.               o                                                     Check if Transferee will take
delivery of a beneficial interest in a Global Note or of a Definitive Note
pursuant to any provision of the Securities Act other than Rule 144A or
Regulation S.  The
Transfer is being effected in compliance with the transfer restrictions
applicable to beneficial interests in Restricted Global Notes and Restricted
Definitive Notes and pursuant to and in accordance with the Securities Act and
any applicable blue sky securities laws of any State of the United States, and
accordingly the Transferor hereby further certifies that (check one):


 


(a)                                o                                          Such
Transfer is being effected pursuant to and in accordance with Rule 144
under the Securities Act; or


 


(b)                               o                                          Such
Transfer is being effected to the Issuer or a subsidiary thereof; or


 


(c)                                o                                          Such
Transfer is being effected pursuant to an effective registration statement
under the Securities Act and in compliance with the prospectus delivery
requirements of the Securities Act; or


 


(d)                               o                                          such
Transfer is being effected to an Institutional Accredited Investor and pursuant
to an exemption from the registration requirements of the Securities Act other
than Rule 144A, Rule 144 or Rule 904, and the Transferor hereby
further certifies that it has not engaged in any general solicitation within
the meaning of Regulation D under the Securities Act and the Transfer
complies with the transfer restrictions applicable to beneficial interests in a
Restricted Global Note


 


B-2

















 


or Restricted
Definitive Notes and the requirements of the exemption claimed, which
certification is supported by (1) a certificate executed by the Transferee
in a form of Exhibit D to the Indenture and (2) an Opinion of Counsel
provided by the Transferor or the Transferee (a copy of which the Transferor
has attached to this certification and provided to the Issuer, which has
confirmed its acceptability), to the effect that such Transfer is in compliance
with the Securities Act.  


 


Upon consummation of the
proposed transfer in accordance with the terms of the Indenture, the
transferred beneficial interest or Definitive Note will be subject to the
restrictions on transfer enumerated in the Private Placement Legend printed on
the Global Note and/or Definitive Notes and in the Indenture and the Securities
Act.


 


4.               o                                                     Check if Transferee will take
delivery of a beneficial interest in an Unrestricted Global Note or of an
Unrestricted Definitive Note.


 


(a)                                                  o                                      Check if Transfer is Pursuant to
Rule 144. 
(i) The Transfer is being effected pursuant to and in accordance
with Rule 144 under the Securities Act and in compliance with the transfer
restrictions contained in the Indenture and any applicable blue sky securities
laws of any State of the United States and (ii) the restrictions on transfer
contained in the Indenture and the Private Placement Legend are not required in
order to maintain compliance with the Securities Act.  Upon consummation of the proposed Transfer in accordance with the
terms of the Indenture, the transferred beneficial interest or Definitive Note
will no longer be subject to the restrictions on transfer enumerated in the
Private Placement Legend printed on the Restricted Global Notes, on Restricted
Definitive Notes and in the Indenture and the Securities Act.


 


(b)                                                 o                                      Check if Transfer is Pursuant to
Regulation S. 
(i) The Transfer is being effected pursuant to and in accordance
with Rule 903 or Rule 904 under the Securities Act and in compliance
with the transfer restrictions contained in the Indenture and any applicable blue
sky securities laws of any State of the United States and (ii) the
restrictions on transfer contained in the Indenture and the Private Placement
Legend are not required in order to maintain compliance with the Securities
Act.  Upon consummation of the proposed
Transfer in accordance with the terms of the Indenture, the transferred
beneficial interest or Definitive Note will no longer be subject to the
restrictions on transfer enumerated in the Private Placement Legend printed on
the Restricted Global Notes, on Restricted Definitive Notes and in the
Indenture and the Securities Act.


 


(c)                                                  o                                      Check if Transfer is Pursuant to
Other Exemption. 
(i) The Transfer is being effected pursuant to and in compliance
with an exemption from the registration requirements of the Securities Act
other than Rule 144, Rule 903 or Rule 904 and in compliance with
the transfer restrictions contained in the Indenture and any applicable blue
sky securities laws of any State of the United States and (ii) the restrictions
on transfer contained in the Indenture and the Private Placement Legend are not
required in order to maintain compliance with the Securities Act.  Upon consummation of the proposed Transfer
in accordance with the terms of the Indenture, the transferred beneficial interest
or Definitive Note will not be subject to the restrictions


 


B-3

















 


on transfer
enumerated in the Private Placement Legend printed on the Restricted Global
Notes or Restricted Definitive Notes and in the Indenture.


 


[signature
page follows]


 


B-4

















 


 


This certificate and the statements contained herein are made for your
benefit and the benefit of the Issuer.


 


 


	
   

  	
   

  	
  Dated:

  	
   

  
	
  [Insert Name
  of Transferor]

  
	
   

  
	
   

  
	
  By:

  	
   

  	
   

  
	
   

  	
  Name:

  
	
   

  	
  Title:

  
						



 


B-5

















 


ANNEX A TO CERTIFICATE OF TRANSFER


 


 


 


 


 


	
  1.

  	
  The
  Transferor owns and proposes to transfer the following:

  
	
   

  	
   

  
	
  [[CHECK ONE
  OF (a) OR (b)]

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  (a)

  	
  o

  	
  a beneficial
  interest in

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  (i)

  	
  o

  	
  144A Global
  Note, or

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  (ii)

  	
  o

  	
  501 Global
  Note, or

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  (iii)

  	
  o

  	
  Reg S
  Global Note; or

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  (b)

  	
  o

  	
  a Restricted
  Definitive Note.

  
	
   

  	
   

  	
   

  	
   

  
	
  2.

  	
  After the
  Transfer the Transferee will hold:

  
	
   

  	
   

  
	
  [CHECK ONE]

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  (a)

  	
  o

  	
  a beneficial
  interest in the:

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  (i)

  	
  o

  	
  144A Global
  Note, or

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  (ii)

  	
  o

  	
  501 Global
  Note, or

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  (iii)

  	
  o

  	
  Reg S
  Global Note,

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  (iv)

  	
  o

  	
  Unrestricted
  Global Note; or

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  (b)

  	
  o

  	
  a Restricted
  Definitive Note; or

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  (c)

  	
  o

  	
  an
  Unrestricted Definitive Note,

  



 


in accordance
with the terms of the Indenture.


 


B-6

















 


EXHIBIT C


 


FORM OF CERTIFICATE OF EXCHANGE


 


The Wornick
Company


10825 Kenwood
Road


Cincinnati,
Ohio 45242


 


U.S. Bank National Association


60 Livingston Avenue


St. Paul, Minnesota 55107-2292


 


Re:  107/8% Senior Secured
Notes due 2011


 


Dear Sirs:


 


Reference is
hereby made to the Indenture, dated as of June 30, 2004 (as it may be amended
and supplemented from time to time, the “Indenture”),
among The Wornick Company, a Delaware corporation (the “Issuer,” which term includes any
successors under the Indenture), the Guarantors party thereto and U.S. Bank
National Association, as trustee. 
Capitalized terms used but not defined herein shall have the meanings
given to them in the Indenture.


 


                      ,
(the “Owner”) owns and proposes
to exchange the Note[s] or interest in such Note[s] specified herein, in the
principal amount of
$                      
in such Note[s] or interests (the “Exchange”).  In connection with the Exchange, the Owner
hereby certifies that:


 


1.  Exchange of Restricted Definitive Notes or
Beneficial Interests in a Restricted Global Note for Unrestricted Definitive
Notes or Beneficial Interests in an Unrestricted Global Note.


 


(a)                                  o                                    Check if Exchange is from beneficial
interest in a Restricted Global Note to beneficial interest in an Unrestricted
Global Note.  In
connection with the Exchange of the Owner’s beneficial interest in a Restricted
Global Note for a beneficial interest in an Unrestricted Global Note in an
equal principal amount, the Owner hereby certifies (i) the beneficial
interest is being acquired for the Owner’s own account without transfer,
(ii) such Exchange has been effected in compliance with the transfer
restrictions applicable to the Restricted Global Notes and pursuant to and in
accordance with the United States Securities Act of 1933, as amended (the “Securities Act”), (iii) the
restrictions on transfer contained in the Indenture and the Private Placement
Legend are not required in order to maintain compliance with the Securities Act
and (iv) the beneficial interest in an Unrestricted Global Note is being
acquired in compliance with any applicable blue sky securities laws of any
State of the United States.


 


(b)                                 o                                    Check if Exchange is from beneficial
interest in a Restricted Global Note to Unrestricted Definitive Note.  In connection with the


 


C-1

















 


Exchange of the Owner’s
beneficial interest in a Restricted Global Note for an Unrestricted Definitive
Note, the Owner hereby certifies (i) the Definitive Note is being acquired
for the Owner’s own account without transfer, (ii) such Exchange has been
effected in compliance with the transfer restrictions applicable to the
Restricted Global Notes and pursuant to and in accordance with the Securities
Act, (iii) the restrictions on transfer contained in the Indenture and the
Private Placement Legend are not required in order to maintain compliance with
the Securities Act and (iv) the Unrestricted Definitive Note is being
acquired in compliance with any applicable blue sky securities laws of any
State of the United States.


 


(c)                                  o                                    Check if Exchange is from Restricted
Definitive Note to beneficial interest in an Unrestricted Global Note.  In connection with the Owner’s Exchange of a
Restricted Definitive Note for a beneficial interest in an Unrestricted Global
Note, the Owner hereby certifies (i) the beneficial interest is being
acquired for the Owner’s own account without transfer, (ii) such Exchange
has been effected in compliance with the transfer restrictions applicable to
Restricted Definitive Notes and pursuant to and in accordance with the
Securities Act, (iii) the restrictions on transfer contained in the
Indenture and the Private Placement Legend are not required in order to
maintain compliance with the Securities Act and (iv) the beneficial
interest is being acquired in compliance with any applicable blue sky
securities laws of any State of the United States.


 


(d)                                 o                                    Check if Exchange is from Restricted
Definitive Note to Unrestricted Definitive Note.  In connection with the Owner’s Exchange of a
Restricted Definitive Note for an Unrestricted Definitive Note, the Owner
hereby certifies (i) the Unrestricted Definitive Note is being acquired
for the Owner’s own account without transfer, (ii) such Exchange has been
effected in compliance with the transfer restrictions applicable to Restricted
Definitive Notes and pursuant to and in accordance with the Securities Act,
(iii) the restrictions on transfer contained in the Indenture and the
Private Placement Legend are not required in order to maintain compliance with
the Securities Act and (iv) the Unrestricted Definitive Note is being
acquired in compliance with any applicable blue sky securities laws of any
State of the United States.


 


2.  Exchange of Restricted Definitive
Notes or Beneficial Interests in Restricted Global Notes for Restricted
Definitive Notes or Beneficial Interests in Restricted Global Notes.


 


(a)                                  o                                    Check if Exchange is from beneficial
interest in a Restricted Global Note to Restricted Definitive Note.  In connection with the Exchange of the
Owner’s beneficial interest in a Restricted Global Note for a Restricted
Definitive Note with an equal principal amount, the Owner hereby certifies that
(i) the Restricted Definitive Note is being acquired for the Owner’s own
account without transfer and (ii) such Exchange has been effected in
compliance with the transfer restrictions applicable to the Restricted Global
Notes and pursuant to and in accordance with the Securities Act, and in
compliance with any applicable blue sky securities laws of any State of the
United States.  Upon consummation of the
proposed Exchange in accordance with the terms of the Indenture, the Restricted
Definitive Note issued will continue to be


 


C-2

















 


subject to the restrictions on
transfer enumerated in the Private Placement Legend printed on the Restricted
Definitive Note and in the Indenture and the Securities Act.


 


(b)                                 o                                    Check if Exchange is from Restricted
Definitive Note to beneficial interest in a Restricted Global Note.  In connection with the Exchange of the
Owner’s Restricted Definitive Note for a beneficial interest in the:  [CHECK ONE] o 144A
Global Note, o Reg S
Global Note, or o 501 Global
Note 


 


with an equal principal amount, the Owner
hereby certifies (i) the beneficial interest is being acquired for the
Owner’s own account without transfer and (ii) such Exchange has been
effected in compliance with the transfer restrictions applicable to the
Restricted Global Notes and pursuant to and in accordance with the Securities
Act, and in compliance with any applicable blue sky securities laws of any
State of the United States.  Upon
consummation of the proposed Exchange in accordance with the terms of the
Indenture, the beneficial interest issued will be subject to the restrictions
on transfer enumerated in the Private Placement Legend printed on the relevant
Restricted Global Note and in the Indenture and the Securities Act.


 


[signature
page follows]


 


C-3

















 


This certificate and the statements contained herein are made for your
benefit and the benefit of the Issuer.


 


 


	
   

  	
   

  
	
  [Insert Name
  of Owner]

  
	
   

  
	
   

  
	
  By:

  	
   

  	
   

  
	
   

  	
  Name:

  
	
   

  	
  Title:

  
	
   

  	
   

  
	
   

  	
   

  
	
  Dated:

  	
   

  	
   

  
						



 


C-4

















 


EXHIBIT D


 


FORM OF CERTIFICATE FROM ACQUIRING


INSTITUTIONAL ACCREDITED INVESTOR


 


The Wornick
Company


10825 Kenwood
Road


Cincinnati,
Ohio 45242


 


U.S. Bank National Association


60 Livingston Avenue


St. Paul, MN 55107-2292


Ladies and
Gentlemen:


 


Reference is
hereby made to the Indenture, dated as of June 30, 2004 (the “Indenture”), between The Wornick Company,
a Delaware corporation (the “Issuer”),
the Guarantors party thereto and U.S. Bank National Association, as trustee
(the “Trustee”).  Capitalized terms used but not defined
herein shall have the meanings given to them in the Indenture.


 


In connection
with our proposed purchase of
$                   
aggregate principal amount of: (a) a beneficial interest in a Global Note,
or (b) a Definitive Note, we confirm that:


 


1.                                       We understand and acknowledge that the Notes
have not been registered under the Securities Act of 1933, as amended (the “Securities Act”), or any other applicable
securities law, and may not be offered, sold or otherwise transferred except in
compliance with the registration requirements of the Securities Act or any
other applicable securities law, pursuant to an exemption therefrom and in each
case in compliance with the conditions for transfer set forth below.


 


2.                                       We are not an affiliate (as defined in Rule
144 under the Securities Act) of the Issuer or acting on behalf of the Issuer,
and we are an institutional “accredited investor” under the Securities Act
within the meaning of subparagraph (a) (1), (2), (3) or (7) of Rule 501 under
the Securities Act (“Rule 501”)
and, if the Notes are to be purchased for one or more accounts (“investor accounts”) for which we are
acting as fiduciary or agent, each such investor account is an institutional
“accredited investor” on a like basis. We have such knowledge and experience in
financial and business matters as to be capable of evaluating the merits and
risks of purchasing the Notes and invest in or purchase securities similar to the
Notes in the normal course of our business. We and any investor accounts for
which we are acting are each aware that we may be required, and are


 


D-1

















 


each able, to bear the
economic risk of our or its investment in the Notes for an indefinite period of
time, including the risk of an entire loss of our or such investor account’s
investment in the Notes.


 


3.                                       We acknowledge that: (a) neither the Issuer
nor any person representing the Issuer has made any representation to us with
respect to the Issuer or the offering or sale of any Notes and (b) we have had
access to such financial and other information concerning the Issuer and the
Notes as we have deemed necessary in connection with our decision to purchase
the Notes, including an opportunity to ask questions of and request information
from the Issuer.


 


4.                                       We are purchasing the Notes for our own
account, or for one or more investor accounts for which we are acting as a
fiduciary or agent, in each case for investment, and not with a view to, or for
offer or sale in connection with, any distribution thereof in violation of the
Securities Act, subject to any requirement of law that the disposition of our
property or the property of such investor account or accounts be at all times
within our or their control and subject to our or their ability to resell such
Notes pursuant to Rule 144A under the Securities Act (“Rule 144A”) or any exemption from
registration available under the Securities Act.


 


5.                                       We agree on our own behalf and on behalf of
any investor account for which we are purchasing Notes to offer, sell or
otherwise transfer such Notes prior to the date which is two years (or such
other period that may hereafter be provided under Rule 144(k) under the Securities
Act as permitting resales of restricted securities by non-affiliates without
restriction) after the later of the date of original issue and the last date on
which the Issuer or any affiliate of the Issuer was the owner of such Notes (or
any predecessor thereto) (the “Resale
Restriction Termination Date”) only (a) to the Issuer or any
subsidiary of the Issuer, (b) pursuant to a registration statement that has
been declared effective under the Securities Act, (c) for so long as the Notes
are eligible for resale pursuant to Rule 144A, to a person we reasonably
believe is a “qualified institutional buyer” as defined in Rule 144A (a “QIB”) that purchases for its own account
or for the account of a QIB and to whom notice is given that the transfer is
being made in reliance on Rule 144A, (d) pursuant to offers and sales to
non-U.S. persons that occur outside the United States in accordance with
Regulation S under the Securities Act, (e) to an institutional “accredited
investor” within the meaning of subparagraph (a) (1), (2), (3) or (7) of Rule
501 that is acquiring the Notes for its own account, or for the account of such
an institutional “accredited investor,” for investment purposes, and not with a
view to, or for offer or sale in connection with, any distribution in violation
of the Securities Act, or (f) pursuant to another available exemption from the
registration requirements of the Securities Act, subject in each of the
foregoing cases to any


 


D-2

















 


requirement of law that the
disposition of our property or the property of such investor account or
accounts be at all times within our or their control and in each case in
compliance with applicable securities laws of any U.S. state or any other
applicable jurisdiction. The foregoing restrictions on resale will not apply
subsequent to the Resale Restriction Termination Date. If any resale or other
transfer of the Notes is proposed to be made pursuant to clause (d), (e) or (f)
above prior to the Resale Restriction Termination Date, the transferor shall
deliver a letter from the transferee substantially in the form of this letter
to the Issuer and the Trustee, which shall provide, among other things, that
the transferee is an institutional “accredited investor” within the meaning of
subparagraph (a) (1), (2), (3) or (7) of Rule 501 and that it is acquiring such
Notes for investment purposes and not for distribution in violation of the
Securities Act. Each purchaser acknowledges that the Issuer and the Trustee
reserve the right prior to the offer, sale or other transfer made prior to the
Resale Termination Date pursuant to clause (d), (e) or (f) above to require the
delivery of an opinion of counsel, certifications and/or other information
satisfactory to each of them.


 


6.                                       We are not acquiring the Notes for or on
behalf of any pension or welfare plan (as defined in Section 3 of the Employee
Retirement Income Security Act of 1974, as amended (“ERISA”)) or other arrangement that is subject to ERISA or
Section 4975 of the Internal Revenue Code (a “plan”)
or any entity whose underlying assets include assets of a plan pursuant to 29
C.F.R. Section 2510.3-101 or otherwise, except that such a purchase or transfer for or on behalf of a pension
or welfare plan shall be permitted to the extent: 


 


(a)                                  such purchase or transfer is being made by or
on behalf of a bank collective investment fund maintained by the purchaser or
transferee in which no plan (together with any other plans maintained by the
same employer or employee organization) has an interest in excess of 10% of the
total assets in such collective investment fund and the conditions of
Section III of Prohibited Transaction Class Exemption 91-38 issued by the
Department of Labor are satisfied; 


 


(b)                                 such purchase or transfer is made by or on
behalf of an insurance company pooled separate account maintained by the
purchaser or transferee in which, at any time while the notes are outstanding,
no plan (together with any other plans maintained by the same employer or
employee organization) has an interest in excess of 10% of the total of all
assets in such pooled separate account and the conditions of Section III
of Prohibited Transaction Class Exemption 90-1 issued by the Department of
Labor are satisfied; 


 


(c)                                  such purchase or transfer is made on behalf
of a plan by (1) an investment advisor registered under the Investment
Advisers Act of


 


D-3

















 


1940
that had as of the last day of its most recent year total assets under its
management and control in excess of $50,000,000 and had stockholders’ or
partners’ equity in excess of $750,000, as shown in its most recent balance
sheet prepared in accordance with generally accepted accounting principles, or
(2) a bank as defined in Section 202 (a) (2) of the Investment
Advisers Act of 1940 with equity capital in excess of $1,000,000 as of the last
day of its most recent year, or (3) an insurance company which is
qualified under the laws of more than one state to manage, acquire or dispose
of any assets of a plan, which insurance company has as of the last day of its
most recent year, net worth in excess of $1,000,000 and which is subject to
supervision and examination by state authority having supervision over
insurance companies and, in any case, such investment advisor, bank or
insurance company is otherwise a qualified professional asset manager, as such
term is used in Prohibited Transaction Class Exemption 84-14 issued by the
Department of Labor, and the assets of such plan when combined with the assets
of other plans established or maintained by the same employer (or affiliate
thereof) or employee organization and managed by such investment advisor, bank
or insurance company, do not represent more than 20% of the total client assets
managed by such investment advisor, bank or insurance company, and the
conditions of Section I of such exemption are otherwise satisfied; 


 


(d)                                 to the extent such plan is a governmental
plan (as defined in Section 3 of ERISA) which is not subject to the
provisions of Title I of ERISA or Section 401 of the Internal Revenue
Code; 


 


(e)                                  to the extent such purchase is made by or on
behalf of an insurance company with assets in its insurance company general
account, and the conditions of Prohibited Transaction Class Exemption 95-60
issued by the Department of Labor are satisfied; 


 


(f)                                    to the extent such purchase is made on behalf
of a plan by an in-house asset manager and the conditions of Part I of
Prohibited Transactions Class Exemption 96-23 issued by the Department of Labor
are satisfied; or 


 


(g)                                 such purchase would not otherwise constitute
a non-exempt prohibited transaction.


 


7.                                       We understand that the Notes will be
delivered in registered form only and that the certificates delivered to us in
respect of the Notes will contain a legend substantially to the following
effect:


 


D-4

















 


THIS SECURITY HAS NOT BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”),
OR ANY STATE SECURITIES LAWS. NEITHER THIS SECURITY NOR ANY INTEREST OR
PARTICIPATION HEREIN MAY BE REOFFERED, SOLD, ASSIGNED, TRANSFERRED, PLEDGED,
ENCUMBERED OR OTHERWISE DISPOSED OF IN THE ABSENCE OF SUCH REGISTRATION OR
UNLESS SUCH TRANSACTION IS EXEMPT FROM, OR NOT SUBJECT TO, REGISTRATION. 


 


THE HOLDER OF THIS SECURITY
BY ITS ACCEPTANCE HEREOF (1) REPRESENTS THAT (X) IT IS A “QUALIFIED
INSTITUTIONAL BUYER” (AS DEFINED IN RULE 144A UNDER THE SECURITIES ACT), (Y) IT
IS A NON-U.S. PURCHASER AND IS ACQUIRING THIS SECURITY IN AN OFFSHORE TRANSACTION
WITHIN THE MEANING OF REGULATION S UNDER THE SECURITIES ACT, OR (Z) IT IS AN
INSTITUTIONAL “ACCREDITED INVESTOR” WITHIN THE MEANING OF SUBPARAGRAPH (a)(1),
(2), (3) OR (7) OF RULE 501 UNDER THE SECURITIES ACT, AND (2) AGREES TO OFFER,
SELL OR OTHERWISE TRANSFER SUCH SECURITY, PRIOR TO THE DATE THAT IS TWO YEARS
(OR SUCH OTHER PERIOD THAT MAY HEREAFTER BE PROVIDED UNDER RULE 144(k) UNDER
THE SECURITIES ACT AS PERMITTING RESALES OF RESTRICTED SECURITIES BY
NON-AFFILIATES WITHOUT RESTRICTION) AFTER THE LATER OF THE ORIGINAL ISSUE DATE
HEREOF AND THE LAST DATE ON WHICH THE ISSUER OR ANY AFFILIATE OF THE ISSUER WAS
THE OWNER OF THIS SECURITY (OR ANY PREDECESSOR OF SUCH SECURITY), ONLY (A) TO
THE ISSUER OR ANY SUBSIDIARIES OF THE ISSUER, (B) PURSUANT TO A REGISTRATION
STATEMENT THAT HAS BEEN DECLARED EFFECTIVE UNDER THE SECURITIES ACT, (C) FOR SO
LONG AS THIS SECURITY IS ELIGIBLE FOR RESALE PURSUANT TO RULE 144A UNDER THE
SECURITIES ACT, TO A PERSON IT REASONABLY BELIEVES IS A “QUALIFIED
INSTITUTIONAL BUYER” AS DEFINED IN RULE 144A UNDER THE SECURITIES ACT THAT
PURCHASES FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF A QUALIFIED INSTITUTIONAL
BUYER TO WHOM NOTICE IS GIVEN THAT THE TRANSFER IS BEING MADE IN RELIANCE ON
RULE 144A UNDER THE SECURITIES ACT, (D) PURSUANT TO OFFERS AND SALES TO
NON-U.S. PERSONS THAT OCCUR OUTSIDE THE UNITED STATES WITHIN THE MEANING OF
REGULATION S UNDER THE SECURITIES ACT, (E) TO AN INSTITUTIONAL “ACCREDITED
INVESTOR” WITHIN THE MEANING OF SUBPARAGRAPH (a)(1), (2), (3) OR (7) OF RULE
501 UNDER THE SECURITIES ACT THAT IS ACQUIRING THIS SECURITY FOR ITS OWN
ACCOUNT, OR


 


D-5

















 


FOR THE ACCOUNT OF SUCH AN
INSTITUTIONAL “ACCREDITED INVESTOR,” FOR INVESTMENT PURPOSES AND NOT WITH A
VIEW TO, OR FOR OFFER OR SALE IN CONNECTION WITH, ANY DISTRIBUTION IN VIOLATION
OF THE SECURITIES ACT, OR (F) PURSUANT TO ANOTHER AVAILABLE EXEMPTION FROM THE
REGISTRATION REQUIREMENTS OF THE SECURITIES ACT, SUBJECT TO THE ISSUER’S AND
THE TRUSTEE’S RIGHT PRIOR TO ANY SUCH OFFER, SALE OR TRANSFER PURSUANT TO
CLAUSE (D), (E), OR (F) TO REQUIRE THE DELIVERY OF AN OPINION OF COUNSEL,
CERTIFICATIONS AND/OR OTHER INFORMATION SATISFACTORY TO EACH OF THEM, AND IN
EACH OF THE FOREGOING CASES, A CERTIFICATE OF TRANSFER IN THE FORM APPEARING ON
THIS SECURITY IS COMPLETED AND DELIVERED BY THE TRANSFEROR TO THE TRUSTEE AND
IN EACH CASE IN ACCORDANCE WITH APPLICABLE SECURITIES LAWS OF ANY U.S. STATE OR
ANY OTHER APPLICABLE JURISDICTION.


 


8.                                       We acknowledge that you and others will rely
upon the truth and accuracy of the foregoing representations, warranties,
acknowledgements and agreements and agrees that, if any representations,
warranties, acknowledgements and agreements deemed to have been made by us are
no longer accurate, we shall promptly notify the Issuer. If we are acquiring
any of the Notes as a fiduciary or agent for one or more investor accounts, we
represent that we have sole investment discretion with respect to each such
account and we have full power to make the foregoing representations,
warranties, acknowledgements and agreements on behalf of each such investor
account.


 


9.                                       Upon purchase, the Notes would be registered
in the name of the undersigned:


 


Name:


Address:


Taxpayer ID Number:


 


10.                                 If
we are acquiring any of the Notes as a fiduciary or agent for one or more
investor accounts, we represent that we have sole investment discretion with
respect to each such account and we have full power to make the foregoing
acknowledgments, representations, warranties and agreements on behalf of each
such investor account.


 


THIS LETTER
SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE
OF NEW YORK APPLICABLE TO CONTRACTS MADE AND TO BE PERFORMED IN


 


D-6

















 


NEW YORK,
INCLUDING, WITHOUT LIMITATION, SECTIONS 5-1401 AND 5-1402 OF THE NEW YORK
GENERAL OBLIGATIONS LAW AND NEW YORK CIVIL PRACTICE LAWS AND RULES 327(B).


 


[signature page follows]


 


D-7

















 


You
are entitled to rely upon this letter and are irrevocably authorized to produce
this letter or a copy hereof to any interested party in any administrative or
legal proceedings or official inquiry with respect to the matters covered
hereby.


 


 


	
   

  	
   

  
	
   

  	
  Name of
  Accredited Investor

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Dated:          ,
  200[   ]

  	
   

  	
   

  
				



 


D-8

















 


EXHIBIT E

FORM OF SUPPLEMENTAL INDENTURE

TO BE DELIVERED BY SUBSEQUENT

GUARANTORS


 


Supplemental
Indenture (this “Supplemental Indenture”),
dated as of        , among  (i) The Wornick Company, a Delaware
corporation (the “Issuer,” which
term includes any successors under the Indenture, as defined below), (ii)
                              ,
a subsidiary of the Issuer (the “Guaranteeing
Subsidiary”) and (iii) U.S. Bank National Association, as trustee
under the Indenture (the “Trustee”).


 


W
I  T  N  E  S  S  E  T  H


 


WHEREAS, the
Issuer has heretofore executed and delivered to the Trustee an indenture (as it
may be amended or supplemented from time to time, the “Indenture”), dated as of June 30, 2004,
providing for the issuance of 107/8% Senior Secured Notes
due 2011 (the “Notes”);


 


WHEREAS,
Section 11.4 of the Indenture provides that under certain circumstances
the Guaranteeing Subsidiary shall execute and deliver to the Trustee a
supplemental indenture and a Guarantee pursuant to which any newly-acquired or
created Guarantor shall unconditionally guarantee all of the Issuer’s
obligations under the Notes and the Indenture on the terms and conditions set
forth herein and in such Guarantee; and


 


WHEREAS,
pursuant to Section 9.3 of the Indenture, the Trustee is authorized to
execute and deliver this Supplemental Indenture.


 


NOW THEREFORE,
in consideration of the foregoing and for other good and valuable
consideration, the receipt of which is hereby acknowledged, the Guaranteeing
Subsidiary and the Trustee mutually covenant and agree for the equal and
ratable benefit of the Holders of the Notes as follows:


 


1.                                       Capitalized Terms.  Capitalized terms used herein without
definition shall have the meanings assigned to them in the Indenture.


 


2.                                       Joinder to Indenture.  Each of the parties hereto hereby agrees to
become bound by the terms, conditions and other provisions of the Indenture
with all attendant rights, duties and obligations stated therein, with the same
force and effect as if originally named as a Guarantor therein and as if such
party executed the Indenture on the date thereof.


 


3.                                       Agreement to Guarantee.  The Guaranteeing Subsidiary irrevocably and
unconditionally guarantees the Guarantee Obligations, which include
(i) the due and punctual payment of the principal of and premium, if any,
and Interest and Liquidated Damages, if any, on the Notes, whether at maturity,
by acceleration, call for redemption, upon a Change of Control Offer, an Asset
Sale Offer, an Excess Cash Flow Offer or otherwise, the due and punctual
payment of interest on the overdue principal of and premium, if any, and (to
the extent permitted by law) interest on any Interest on the


 


E-1

















 


Notes, and the due and punctual
performance of all other obligations of the Issuer, to the Holders or the
Trustee all in accordance with the terms set forth in Article XI of the
Indenture, and (ii) in case of any extension of time of payment or renewal
of any Notes or any such other obligations, that the same will be promptly paid
in full when due or performed in accordance with the terms of the extension or
renewal, whether at stated maturity, by acceleration, call for redemption, upon
a Change of Control Offer, an Asset Sale Offer, an Excess Cash Flow Offer or
otherwise.


 


The
obligations of the Guaranteeing Subsidiary to the Holders and to the Trustee
pursuant to this Supplemental Indenture and the Indenture are expressly set
forth in Article XI of the Indenture and reference is hereby made to such
Indenture for the precise terms of the Guarantee. 


 


No direct or
indirect stockholder, incorporator, controlling Person, employee, officer or director,
as such, past, present or future of the Issuer, the Guarantors or any successor
entity shall have any personal liability in respect of the Issuer’s obligations
or the obligations of the Guarantors under the Indenture, the Notes, the
Guarantees, the Registration Rights Agreement, the Collateral Agreements or the
Intercreditor Agreement solely by reason of his, her or its status as such
stockholder, incorporator, controlling Person, employee, officer or director,
except that provision shall in no way limit the obligation of any Guarantor
pursuant to any Guarantee of the Notes.


 


This is a
continuing Guarantee and shall remain in full force and effect and shall be
binding upon each Guarantor and its successors and assigns until full and final
payment of all of the Issuer’s obligations under the Notes and Indenture or
until released or legally defeased in accordance with the Indenture and shall
inure to the benefit of the successors and assigns of the Trustee and the
Holders, and, in the event of any transfer or assignment of rights by any
Holder or the Trustee, the rights and privileges herein conferred upon that
party shall automatically extend to and be vested in such transferee or
assignee, all subject to the terms and conditions hereof.  This is a Guarantee of payment and
performance and not of collectibility.


 


The
obligations of the Guaranteeing Subsidiary under its Subsidiary Guarantee shall
be limited to the extent necessary to insure that it does not constitute a
fraudulent conveyance under applicable law.


 


THE TERMS OF
ARTICLE XI OF THE INDENTURE ARE INCORPORATED HEREIN BY REFERENCE.


 


4.                                       NEW YORK LAW TO GOVERN.  THIS SUPPLEMENTAL INDENTURE SHALL BE
GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW
YORK APPLICABLE TO CONTRACTS MADE AND TO BE PERFORMED IN THE STATE OF NEW YORK,
INCLUDING, WITHOUT LIMITATION, SECTIONS 5-1401 AND 5-1402 OF THE NEW YORK
GENERAL OBLIGATIONS LAW AND NEW YORK CIVIL PRACTICE LAWS AND RULES 327(B);
PROVIDED, THAT WITH RESPECT TO THE CREATION, ATTACHMENT, PERFECTION, PRIORITY,
ENFORCEMENT OF AND REMEDIES


 


E-2

















 


RELATING TO THE SECURITY
INTEREST IN ANY REAL PROPERTY COLLATERAL, THE GOVERNING LAW MAY BE THE LAWS OF
THE JURISDICTIONS WHERE SUCH COLLATERAL IS LOCATED WITHOUT REGARD TO THE
CONFLICT OF LAW PROVISIONS THEREOF.


 


5.                                       Counterparts.  The parties may sign any number of copies of this Supplemental
Indenture.  Each signed copy shall be an
original, but all of them together represent the same agreement.


 


6.                                       Effect of Headings.  The Section headings herein are for
convenience only and shall not affect the construction hereof.


 


[signature
page follows]


 


E-3

















 


IN WITNESS WHEREOF, the parties hereto have
caused this Supplemental Indenture to be duly executed and attested, all as of
the date first above written.


 


	
   

  	
  THE ISSUER:

  
	
   

  	
   

  
	
   

  	
  THE WORNICK
  COMPANY

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
  Name:

  
	
   

  	
  Title:

  
	
   

  	
   

  
	
   

  	
  GUARANTEEING
  SUBSIDIARY:

  
	
   

  	
   

  
	
   

  	
  NAME:

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  
	
   

  	
   

  
	
   

  	
  THE TRUSTEE:

  
	
   

  	
   

  
	
   

  	
  U.S. BANK NATIONAL
  ASSOCIATION

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  
				



 


E-4

















 


EXHIBIT F



 


FORM OF INTERCREDITOR AGREEMENT


 


[attached]


 


F-1

















 


FORM OF INTERCREDITOR AGREEMENT


 


This
INTERCREDITOR AGREEMENT, dated as of June 30, 2004 (this “Agreement”), is made by and between U.S.
BANK NATIONAL ASSOCIATION, in its capacity as trustee under the Indenture (as
defined below) and as secured party under the Security Agreement (as defined in
the Indenture) (together with its successors in such capacities, the “Trustee”), and
                               ,
as the lender (the “Bank”) under
the Credit Agreement (as defined below).


 


RECITALS


 


WHEREAS, The
Wornick Company, a Delaware corporation (the “Issuer”),
the Guarantors (as defined in the Indenture referred to below) and the Trustee
entered into that certain Indenture, dated as of June 30, 2004 (as amended,
restated, supplemented, or otherwise modified from time to time, the “Indenture”), whereby indebtedness was
incurred by the Issuer, the repayment of which is guaranteed by the Guarantors
and secured by a continuing security interest in and lien on substantially all
of the assets of the Issuer and the Guarantors (other than the Excluded Assets
(defined therein)) (the “Collateral”);


 


WHEREAS, the
Issuer, the Guarantors and the Bank entered into that certain Loan Agreement,
dated as of the date hereof (as amended, restated, supplemented or otherwise
modified from time to time, the  “Credit Agreement”), whereby the Bank
agreed, upon the terms and conditions stated therein, to make loans and
advances to, or to issue letters of credit (or guaranties in respect thereof)
for the account of the Issuer, the repayment of which is secured by a
continuing security interest in and lien on the Collateral in accordance with
the Credit Agreement and all other Loan Documents (as defined in the Credit
Agreement) (collectively, the “Credit
Documents”);


 


WHEREAS, one
of the conditions of the Credit Agreement is that the security interest in the
Collateral under the Credit Documents be senior in priority to the security
interest in the Collateral under the Indenture Documents (defined below) in the
manner and to the extent provided for in this Agreement;


 


WHEREAS, the
Trustee and the Bank desire to enter into this Agreement concerning their
respective rights with respect to the priority of their respective security
interests in the Collateral; and


 


WHEREAS, the
terms of the Indenture permit the Issuer and the Guarantors to enter into the
Credit Agreement, and in connection therewith, authorize and direct the Trustee
to enter into an intercreditor agreement in the form of this Agreement.


 


NOW,
THEREFORE, the Parties hereby agree as follows:


 

















 


ARTICLE I

DEFINITIONS


 


SECTION 1.1                     DEFINITIONS.  IN ADDITION TO THE CAPITALIZED TERMS DEFINED
ABOVE, AS USED IN THIS AGREEMENT, THE FOLLOWING CAPITALIZED TERMS ARE USED:


 


“Credit
Facility Indebtedness” means all present and future Obligations (as
defined in the Credit Agreement), contingent or otherwise, of the Issuer and
the Guarantors to the Senior Creditor arising under or pursuant to the Credit
Documents, including, in each case, interest, fees, and expenses accruing after
the initiation of any Insolvency Proceeding (irrespective of whether allowed as
a claim in such proceeding), and also including the secured claims of the
Senior Creditor in respect of the Collateral in any Insolvency Proceeding.


 


“Enforcement
Action” means, with respect to the Trustee or the Senior Creditor,
(a) the commencement of any action, whether judicial or otherwise, for the
enforcement of such Party’s rights and remedies as a secured creditor with
respect to the Collateral, including the commencement of any receivership or foreclosure
proceedings against, or any other sale of, collection on, or disposition of,
any Collateral, or any exercise of remedies with respect to the Collateral
under the Indenture Documents or the Credit Documents; (b) notifying any
third-party account debtors of the Issuer, any Guarantor or any of their
respective subsidiaries to make payment directly to such Party or to any of its
agents or other Persons acting on its behalf; or (c) following the commencement
of an Insolvency Proceeding against the Issuer or any Guarantor, exercising any
rights afforded to secured creditors in a case under the Bankruptcy Code that
directly relates to or directly affects any of the Collateral.


 


“Enforcement
Event” means the occurrence and continuance of an Event of Default.


 


“Enforcement
Event Notice” has the meaning set forth in Section 3.2(a).


 


“Entitled
Party” has the meaning set forth in Section 4.1(a).


 


“Event of
Default” has the meaning set forth in the Financing Documents.


 


“Expiry
Date” has the meaning set forth in Section 3.2(b)(i).


 


“Financing
Documents” means the Indenture Documents and the Credit Documents.


 


“Fully Paid”
means the payment in cash or cash equivalents in full of all obligations (other
than inchoate indemnity obligations that survive payment in full) under the
Credit Documents or the Indenture Documents, as the case may be, and in the
case of the Credit Documents, at such time when there shall no longer be any
obligation to make loans or advances or issue letters of credit (or guaranties
in respect thereof) thereunder and there shall no longer be any letter of
credit (or guaranty in respect thereof) outstanding thereunder or such letter
of credit (or guaranty in respect thereof) shall have been fully cash
collateralized (in accordance with the provisions of the Credit Documents).


 


“Indenture
Documents” means the Indenture, the Notes, the Security Documents
and the Registration Rights Agreement, and such other agreements, instruments
and certificates executed and delivered (or issued) by the Issuer or the
Guarantors pursuant to the Indenture, as


 


2

















 


any or all of the same may be
amended, restated, supplemented or otherwise modified from time to time.


 


“Insolvency
Proceeding” means any proceeding for the purposes of dissolution,
winding up, liquidation, arrangement or reorganization of the Issuer, any
Guarantor, or any other subsidiary of the Issuer, or its successors or assigns,
whether in bankruptcy, insolvency, arrangement, reorganization or receivership
proceedings, or upon an assignment for the benefit of creditors or any other
marshaling of the assets and liabilities of the Issuer, any Guarantor, or any
other subsidiary of the Issuer, or its successors or assigns.


 


“Lien
Priority” means, with respect to any Lien in and to the Collateral,
the order of priority of such Lien as specified in Sections 2.1 and  2.2.


 


“Maximum
Amount” means an aggregate amount of Credit Facility Indebtedness
incurred and outstanding at any time (plus any
Refinancing Indebtedness incurred to retire, defease, refinance, replace or
refund such Indebtedness) of up to the greater of (a) $15.0 million, plus any Indebtedness owing to the Senior
Creditor certified by the Issuer to the Senior Creditor at the time of
incurrence to be permitted under the Indenture pursuant to clause (ii) of
paragraph (g) or paragraph (h) of the definition of “Permitted Indebtedness,” minus the amount of any such Indebtedness
certified by the Issuer to the Senior Creditor to be (1) retired with the Net
Cash Proceeds from any Asset Sale or Event of Loss applied to permanently
reduce the outstanding amounts or the commitments with respect to such
Indebtedness pursuant to Section 4.13 of the Indenture, or (2) assumed by a
transferee in an Asset Sale, and (b) the sum of (i) 85% of the net book value
of accounts receivable of the Issuer and the Subsidiaries, and (ii) 65% of the
net book value of inventory of the Issuer and the Subsidiaries, in the case of
each of clauses (b)(i) and (ii), as determined by the Issuer in accordance with
GAAP as of the date or dates of incurrence of such Indebtedness under the
Credit Agreement, and which Indebtedness is certified by the Issuer to the
Senior Creditor at the time of incurrence as permitted under the Indenture, and
including accounts receivable and inventory acquired with the proceeds of the
substantially concurrent incurrence of Indebtedness under the Credit Agreement,
plus in the instance of either
clause (a) or (b), all related interest, fees, indemnities, costs and expenses.


 


“Notes”
means the senior secured notes issued under the Indenture.


 


“Party”
means any signatory to this Agreement.


 


“Secured
Liability” means the Subordinated Lien Indebtedness and the Credit
Facility Indebtedness.


 


“Senior
Creditor” means the Bank or, if applicable, the administrative agent
(or similar designation, if the Credit Facility Indebtedness is syndicated
among a group of lenders) under the Credit Agreement.


 


“Subordinated
Lien Indebtedness” means all present and future obligations, contingent
or otherwise, of the Issuer and the Guarantors to the Trustee or the Holders
arising under or pursuant to the Indenture Documents, including, in each case,
interest, fees and expenses accruing after the initiation of any Insolvency
Proceeding (irrespective of whether allowed as a claim in such proceeding), and
including the secured claims of the Trustee or the Holders in respect of the
Collateral in any Insolvency Proceeding.


 


3

















 


“Trigger
Date” means the earlier of (i) the date on which an event
contemplated by clause (b) or (c) of the definition of Trigger Event occurs,
(ii) the date on which an Enforcement Event Notice is delivered, and (iii) the
final maturity date of the Credit Facility Indebtedness (after giving effect to
any extensions granted thereunder).


 


“Trigger
Event” means:


 


(a)                                  the occurrence of an Event of
Default,


 


(b)                                 the acceleration of the maturity of
the Credit Facility Indebtedness by the Senior Creditor pursuant to the Credit
Agreement, or


 


(c)                                  the commencement of any action or
proceeding by the Senior Creditor, whether judicial or otherwise (but excluding
demands for payment or notices of default), for the enforcement of the Senior
Creditor’s rights and remedies under any of the Credit Documents, including (i)
commencement of any Enforcement Action against or any other sale of, collection
on or disposition of any Collateral, including any notification to third
parties to make payment directly to the Senior Creditor; (ii) exercise of any
right of set-off; (iii) commencement of any Insolvency Proceeding; and (iv)
commencement of any judicial action or proceeding against the Issuer or any
Guarantor to recover all or any part of the Credit Facility Indebtedness.


 


4

















 


SECTION 1.2                     Indenture definitions.  Undefined capitalized terms have the
meanings assigned to them in the indenture.


 


SECTION 1.3                     Miscellaneous.  All definitions herein (whether set forth
herein directly or by reference to definitions in other documents) shall be
equally applicable to both the singular and the plural forms of the terms
defined.  The words “hereof,” “herein”
or “hereunder” and words of similar import when used in this agreement shall
refer to this agreement as a whole and not to any particular provision of this
agreement.  The term “including” (and
similar terms) means “including without limitation.”


 


ARTICLE II

LIEN PRIORITY


 


SECTION 2.1                     Agreement to subordinate liens.  The trustee hereby agrees that the liens of
the trustee for the benefit of itself and the holders in and to the collateral
are and shall be subordinate in priority to the liens of the senior creditor in
and to the collateral securing the credit facility indebtedness up to, but not
in excess of, the maximum amount; provided that,
the rights of the senior creditor under this agreement shall be void and of no
further force and effect if, and only to the extent that, the liens of the
senior creditor in and to the collateral are avoided, disallowed, set aside or
otherwise invalidated in any action or proceeding by a court, tribunal or
administrative agency of competent jurisdiction.  The subordination of the liens of the trustee for the benefit of
itself and the holders in and to the collateral in favor of the senior creditor
provided for herein shall not be deemed to (a) subordinate the liens of the
trustee to the liens of any other person, or (b) subordinate the subordinated
lien indebtedness to any indebtedness of the issuer or any of the guarantors,
including the credit facility indebtedness.


 


SECTION 2.2                     No contest; excluded assets.  Each party agrees that it will not attack or
contest the validity, perfection, priority or enforceability of the liens of
the other party (and the trustee agrees that it will not contest the senior
creditor’s good faith reliance on any certification referenced in the
definition of “maximum amount” made by the issuer to the senior creditor), or
finance or urge any other person to do so; provided
that, either party may enforce its rights and privileges hereunder
without being deemed to have violated this provision.  Any provision contained in this agreement to the contrary
notwithstanding, the terms and conditions of this agreement shall not apply to
any property or assets (including property or assets that do not constitute
collateral) that one party has a lien on and the other party does not.


 


5

















 


SECTION 2.3                     EXERCISE OF
RIGHTS.


 


(a)                                  The Trustee may exercise, and
nothing herein shall constitute a waiver of, any right it may have at law or in
equity to receive notice of, or to commence or join with any creditor in
commencing any Insolvency Proceeding; provided
that, the exercise of any such right by the Trustee shall be (i) subject to the
Lien Priority and the application of proceeds of Collateral under Section
3.4, and (ii) subject to the provisions of Sections 3.1 and 3.2.


 


(b)                                 Notwithstanding any other provision
hereof, the Trustee may make such demands or file such claims as may be
necessary to prevent the waiver or bar of such claims under applicable statutes
of limitations or other statutes, court orders or rules of procedure.


 


SECTION 2.4                     Priority of liens.  Irrespective of the order of recording of
mortgages, financing statements, security agreements or other instruments, and
irrespective of the descriptions of collateral contained in the financing
documents, including any financing statements, the parties agree among
themselves that their respective liens in the collateral shall be governed by
the lien priority, which shall be controlling in the event of any conflict
between this agreement and any of the financing documents. 


 


ARTICLE III

ACTIONS OF THE PARTIES


 


SECTION 3.1                     LIMITATION ON
CERTAIN ACTIONS.  SUBJECT TO SECTION
3.2, UNTIL THE EARLIER OF (A) THE DATE ON WHICH ALL CREDIT FACILITY
INDEBTEDNESS IS FULLY PAID, AND (B) THE FIRST DATE FOLLOWING THE DATE ON WHICH
THE MAXIMUM AMOUNT OF CREDIT FACILITY INDEBTEDNESS IS FULLY PAID, THE TRUSTEE
WILL NOT, WITHOUT THE PRIOR WRITTEN CONSENT OF THE SENIOR CREDITOR, TAKE ANY
ENFORCEMENT ACTION.


 


SECTION 3.2                     STANDSTILL
PERIOD.


 


(a)                                  If an Enforcement Event with respect
to the Indenture Documents has occurred and is continuing, the Trustee, on
behalf of the Holders, will give the Senior Creditor written notice thereof (an
“Enforcement Event Notice”).


 


(b)                                 The Trustee may, subject to the Lien
Priority and the application of all proceeds of the Collateral in accordance
with Section 3.4, take one or more Enforcement Actions so long as:


 


(i)         (A) an Enforcement Event is continuing for more than
45 consecutive days after the delivery of an Enforcement Event Notice (the “Expiry Date”); (B) the Senior Creditor has
not, on or before the Expiry Date, commenced one or more Enforcement Actions,
and (C) the Issuer or the Guarantor against which the Trustee’s proposed
Enforcement Action is to be taken is not the subject of an Insolvency
Proceeding; or


 


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(ii)      (A) the Senior Creditor has commenced any Enforcement
Action on or prior to the Expiry Date and, at any time after the Expiry Date,
is no longer pursuing any Enforcement Actions, (B) no Insolvency Proceeding is
pending against the Issuer or any Guarantor against which the Trustee’s
proposed Enforcement Action is to be taken, and (C) the Enforcement Event that
was the subject of, or existing on the date of, the Enforcement Event Notice is
then continuing.


 


(c)                                  Except as expressly provided for in
this Agreement, nothing in this Agreement shall prevent the Parties hereto from
exercising any other remedy, or taking any other action, under any of the
Financing Documents.


 


SECTION 3.3                     Foreclosure.  Any party taking a permitted enforcement
action may enforce its financing documents independently as to the issuer and
each guarantor and independently of any other remedy or security such party at
any time may have or hold in connection with the secured liabilities owing to
it, and it shall not be necessary for such party to marshal assets in favor of
the other party or any other person or to proceed upon or against or exhaust
any other security or remedy before proceeding to enforce the financing
documents.  Each of the trustee (for so
long as the credit facility indebtedness is not fully paid) and the senior
creditor (for so long as the trustee and the holders are owed any subordinated
lien indebtedness) expressly waives any right to require the other party to
marshal assets in its favor or to proceed against any collateral provided by
the issuer or any guarantor, or any other property, assets, or collateral
provided by the issuer, any guarantor, or any other person, and agrees that the
party taking such permitted enforcement action may proceed against the issuer,
any guarantor, any collateral or other property, assets, or other collateral
provided by any of them or by any other person, in such order as it shall
determine in its sole and absolute discretion. 
The foregoing notwithstanding: 
(a) with respect to the sale or other disposition of any collateral, the
party conducting such sale or other disposition agrees in favor of the other
party that such sale or other disposition shall be conducted in a commercially
reasonable manner in accordance with any applicable law, including Article 9 of
the uniform commercial code, and (b) the senior creditor agrees that, at such
time as all credit facility indebtedness is fully paid, it shall thereupon
promptly cease all further enforcement actions.


 


SECTION 3.4                     Distribution.  Each party agrees that, upon any
distribution as a result of an enforcement action, or the receipt of any other
payment or distribution with respect to the collateral, the proceeds thereof
shall be distributed in the order of, and in accordance with, the following
priorities:


 


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(a)                                  FIRST:


 


(i)                                     if the Enforcement Action is taken
by the Senior Creditor, to the payment of all reasonable costs and expenses,
commissions and taxes of the Senior Creditor incurred in connection with taking
any such Enforcement Action or other realization, including all reasonable
expenses (including attorneys’ fees and expenses), liabilities and advances
made or incurred by the Senior Creditor in connection therewith;


 


(ii)                                  if the Enforcement Action is taken
by the Trustee, to the payment of all reasonable costs and expenses,
commissions and taxes of the Trustee incurred in connection with taking any
such Enforcement Action or other realization, including all reasonable expenses
(including attorneys’ fees and expenses), liabilities and advances made or
incurred by the Trustee in connection therewith;


 


(b)                                 SECOND, to the Senior Creditor,
until the earlier of (i) the Credit Facility Indebtedness being Fully Paid, and
(ii) the first time following the date at which the Maximum Amount of Credit
Facility Indebtedness is Fully Paid;


 


(c)                                  THIRD, to the Trustee, until all
Subordinated Lien Indebtedness is Fully Paid;


 


(d)                                 FOURTH, to the Senior Creditor until
all outstanding Credit Facility Indebtedness in excess of the Maximum Amount is
Fully Paid; and


 


(e)                                  FIFTH, to the Issuer or the
Guarantors, as applicable, or as a court of competent jurisdiction may
otherwise direct.


 


8

















 


SECTION 3.5                     Notice of certain events.  Each party agrees that it will notify the
other party, in writing, (a) if it receives actual notice of the occurrence of
a trigger event or enforcement event, not later than seven days after the date
of any such occurrence, and (b) prior to its first exercising any remedies with
respect to any portion of the collateral in connection with one or more events
of default, provided that, if all
such events of default are cured or waived, such notice under this Clause (b)
will be given on each other occasion that remedies are first exercised with
respect to one or more other events of default.  Notwithstanding the foregoing, (x) the senior creditor shall not
be obligated to provide such prior written notice if exigent circumstances
require that it act immediately to preserve, protect, or obtain possession or
control over the collateral; provided that,
in such event the senior creditor agrees to provide the trustee with written
notice as soon as practicable following the senior creditor first exercising
any remedies with respect to the collateral; and (y) no party shall incur any
liability to the other under this Section 3.5  as a result of the failure of such party to provide any such
notice so long as the failure to so provide such notice was not the result of
willful misconduct, bad faith or gross negligence.


 


ARTICLE IV

ENFORCEMENT OF PRIORITIES


 


SECTION 4.1                     In furtherance of lien priorities.  Each party agrees as follows:


 


(a)                                  All payments or distributions of or
with respect to the Collateral that are received by any Party contrary to the
provisions of this Agreement shall be segregated from other funds and property
held by such Party and shall be held in trust for the Party entitled thereto
(the “Entitled Party”) in
accordance with the provisions of Section 3.4 and such Party shall
forthwith pay over such remaining proceeds to the Entitled Party in the same
form as so received (with any necessary endorsement) to be applied (in the case
of cash) or held as Collateral (in the case of noncash property or securities)
in accordance with the provisions hereof and the provisions of the applicable
Financing Documents.


 


(b)                                 After the earlier of (i) the date on
which all Credit Facility Indebtedness is Fully Paid, and (ii) the first date
following the Trigger Date on which the Maximum Amount of Credit Facility
Indebtedness is Fully Paid, the Senior Creditor will promptly execute and
deliver all further instruments and documents, and take all further actions
that may be necessary, or that the Trustee may reasonably request, to permit
the Trustee to evidence the termination of the Lien Priority hereunder, or in
furtherance thereof; provided that,
(x) the Senior Creditor shall not be required to pay over any payment or
distribution, execute any instruments or documents, or take any other action
referred to in this Section 4.1(b) to the extent that such action would
contravene any law, order or other legal requirement, and in the event of a
controversy or dispute, the Senior


 


9

















 


Creditor may interplead any
payment or distribution in any court of competent jurisdiction; and (y) the
Senior Creditor shall not incur any liability to the Trustee for failure to
provide any such further instruments and documents or take any further acts, so
long as the failure to provide any such further instruments and documents or
take any such further act was not the result of malfeasance, willful misconduct
or gross negligence.


 


(c)                                  Each Party is hereby authorized to
demand specific performance of this Agreement, whether or not the Issuer or any
Guarantor shall have complied with any of the provisions hereof applicable to
it, at any time when either Party shall have failed to comply with the
provisions of this Agreement applicable to it. 
Each Party hereby irrevocably waives any defense based on the adequacy
of a remedy at law, which might be asserted as a bar to such remedy of specific
performance.


 


(d)                                 This Agreement shall continue to be
effective or be reinstated, as the case may be, if at any time any payment of
any of the Secured Liabilities is, other than as a result of any intentional
fraud or gross negligence of the applicable Party, rescinded or must otherwise
be returned by the applicable Party upon the insolvency, bankruptcy or
reorganization of the Issuer or any Guarantor or otherwise, all as though such
payment had not been made.


 


SECTION 4.2                     Perfection of possessory security
interests.  For the limited
purpose of perfecting the security interests of the parties in those types or
items of collateral in which a security interest only may be perfected by
possession or control, each party hereby appoints the other as its
representative for the limited purpose of possessing on its behalf any such
collateral that may come into the possession or control of such other party
from time to time, and each party agrees to act as the other’s representative
for such limited purpose of perfecting the other’s security interest by
possession or control through a representative; provided that, neither party shall incur any liability to
the other by virtue of acting as the other’s representative hereunder.  In this regard, any party that is in
possession or control of any such item of collateral agrees that if it elects
to relinquish possession or control of such item of collateral it shall deliver
possession or control thereof to the other party; provided that, no party shall be required to deliver any
such item of collateral or take any other action referred to in this Section
4.2 to the extent that such action would contravene any law, order or other
legal requirements, and in the event of a controversy or dispute, such party
may interplead any item of collateral in any court of competent jurisdiction.


 


SECTION 4.3                     Control of dispositions of
collateral and effect thereof on junior liens.


 


(a)                                  Each Party hereby agrees that any
collection, sale, or other disposition of Collateral (whether under the
applicable Uniform Commercial Code or otherwise) by the Senior Creditor shall
be free and clear of any Lien of the Trustee in


 


10

















 


such Collateral; provided that, the Trustee shall retain a
Lien (having the same priority as the Lien it previously had on the item of
Collateral that was collected, sold or otherwise disposed of) on the proceeds
of such collection, sale, or other disposition (except to the extent such
proceeds are applied to the Credit Facility Indebtedness in accordance with Section
3.4).


 


(b)                                 To the extent reasonably requested
by the Senior Creditor, the Trustee will cooperate in providing any necessary
or appropriate releases to permit a collection, sale, or other disposition of
Collateral, as provided in Section 4.3(a), by the Senior Creditor
therein free and clear of the Trustee’s junior Lien.


 


ARTICLE V

MISCELLANEOUS


 


SECTION 5.1                     Rights of subrogation. 
The trustee agrees that no payment or distribution received by the
trustee on account of the subordinated lien indebtedness, which payment or
distribution is applied against the subordinated indebtedness and is paid over
to the senior creditor pursuant to Section 4.1, shall entitle the
trustee to exercise any rights of subrogation in respect thereof until the
earlier of (a) the date on which all credit facility indebtedness is fully
paid, and (b) the date on which the maximum amount of credit facility
indebtedness shall have been fully paid.


 


SECTION 5.2                     Further assurances.  The parties will, at their own expense and
at any time and from time to time, promptly execute and deliver all further
instruments and documents, and take all further reasonable action (including
the recordation of a subordination agreement in the appropriate recorder’s
office), that may be necessary or desirable, or that either party may
reasonably request, to protect any right or interest granted or purported to be
granted hereby or to enable such party to exercise and enforce its rights and
remedies hereunder; provided
that, no party shall be required to pay over any payment or distribution,
execute any instruments or documents, or take any other action referred to in
this Section 5.2 to the extent that such action would contravene any
law, order or other legal requirement binding on such party, and in the event
of a controversy or dispute, any party may interplead any payment or
distribution in any court of competent jurisdiction, without further
responsibility in respect of such payment or distribution under this Section
5.2.


 


SECTION 5.3                     Defenses similar to suretyship
defenses.  All rights,
interests, agreements and obligations of each of the parties under this
agreement shall remain in full force and effect irrespective of:


 


(a)                                  any change in the time, manner or
place of payment of, or in any other term of, all or any of the Secured
Liabilities, or any other amendment or waiver of or any consent to departure
from the Financing Documents; provided that,
this Section 5.3(a)


 


11

















 


shall not apply to, and the
Trustee’s Liens on the Collateral shall not be subordinated in priority by
virtue of this Agreement to, the Senior Creditor’s Liens thereon if and to the
extent that the Credit Facility Indebtedness is increased, without the express
written consent of the Trustee, to an amount in excess of the Maximum Amount;


 


(b)                                 any exchange, release,
nonenforcement or nonperfection of any Party’s Liens with respect to any
Collateral, or any release, amendment or waiver of or consent to departure from
any guaranty, for all or any of the Secured Liabilities; or


 


(c)                                  any failure by any Party to marshal
assets in favor of any other Party or any other Person or to proceed upon or
against or exhaust any security or remedy before proceeding to enforce the
Financing Documents.


 


SECTION 5.4                     Amendments, etc.  No amendment or waiver of any provision of
this agreement and no consent to any departure by any party shall be effective
unless the same is in writing and signed by each party, and then such waiver or
consent shall be effective only in the specific instance and for the specific
purpose for which given.


 


SECTION 5.5                     Addresses for notices.  All demands, notices and other
communications provided for hereunder shall be in writing, and if to the
trustee, mailed, sent by facsimile or delivered to it at the following address:


 


U.S. Bank
National Association

60 Livingston Avenue

St. Paul, MN  55107

Facsimile:  (651) 495-8097

Attention:  Corporate Trust Department


 


and if to the Senior Creditor,
mailed, sent by facsimile or delivered to it at the following address:


 


Texas State
Bank

3900 North 10th Street

McAllen, TX 78501


Facsimile:
(956) 926-7872


Attention: Glen
Roney


 


with copies to the Issuer,
mailed, sent by facsimile or delivered to it at the following addresses:


 


The Wornick
Company

3900 North 10th Street, Suite 900

McAllen, TX  78501

Facsimile:  (956) 882-7816

Attention:  Chief Executive Officer


 


12

















 


Veritas
Capital Management II, L.L.C.


660 Madison
Avenue


New York, New
York 10022


Facsimile:  (212) 688-9411


Attention:  Robert B. McKeon


 


Schulte, Roth
& Zabel LLP


919 Third
Avenue


New York, New
York 10022


Facsimile:  (212) 593-5955


Attention:
Benjamin M. Polk, Esq.


 


Winston &
Strawn LLP


200 Park
Avenue


New York, New
York 10166


Facsimile:  (212) 294-4700


Attention:
David A. Sakowitz, Esq.


 


or as to any Party at such
other address designated by such Party in a written notice to the other Party
complying as to delivery with the terms of this Section 5.5.  All such demands, notices and other
communications shall be effective:  (a)
if mailed, two business days after deposit in the mails, postage prepaid; (b)
if sent by facsimile, when receipt is acknowledged by the receiving facsimile
equipment (or at the opening of the next business day if receipt is after
normal business hours); or (c) if by other means, when delivered.


 


13

















 


SECTION 5.6                     No waiver of remedies. 
No failure on the part of any party to exercise, and no delay in
exercising, any right hereunder shall operate as a waiver thereof; nor shall
any single or partial exercise of any right hereunder preclude any other or
further exercise thereof or the exercise of any other right.  The remedies herein provided are cumulative
and not exclusive of any remedies provided by law.


 


SECTION 5.7                     Termination of agreement.  This agreement shall (x) be binding on the
parties and their successors and assigns; (y) inure to the benefit of and be
enforceable by the parties and their respective successors, transferees and
assigns; and (z) terminate upon the credit facility indebtedness or the
subordinated lien indebtedness being fully paid; provided that, the obligations of the parties under Sections
4.1 and 5.2 shall survive this agreement.


 


SECTION 5.8                     Governing law; entire agreement.  This
agreement shall be governed by, and construed in accordance with, the laws of
the State of New York.  This
agreement constitutes the entire agreement and understanding among the parties
with respect to the subject matter hereof and supersedes any prior agreements,
written or oral, with respect thereto.


 


SECTION 5.9                     Counterparts. 
This agreement may be executed in any number of counterparts, and it is
not necessary that the signatures of all parties be contained on any one
counterpart hereof, each counterpart (including counterparts delivered by
facsimile) will be deemed to be an original, and all together shall constitute
one and the same document.


 


SECTION 5.10              No third party beneficiary.  This agreement is solely for the benefit of
the parties (and their successors and assigns) and the holders of the secured
liabilities (including the lenders under the credit agreement, the senior
creditor, the trustee and the holders). 
No other person (including the issuer, any guarantor or any subsidiary
or affiliate of the issuer or any guarantor) shall be deemed to be a third
party beneficiary of this agreement or shall have any rights to enforce any
provisions hereof.


 


SECTION 5.11              Headings.  The headings of the articles and sections of
this agreement are inserted for purposes of convenience only and shall not be
construed to affect the meaning or construction of any of the provisions
hereof.


 


SECTION 5.12              Severability.  If any of the provisions in this agreement
shall, for any reason, be held invalid, illegal or unenforceable in any
respect, such invalidity, illegality or unenforceability shall not affect any other
provision of this agreement and shall not invalidate the lien priority or any
other priority set forth in this agreement.


 


14

















 


SECTION 5.13              Trustee status.  Notwithstanding any term herein to the
contrary, it is hereby expressly agreed and acknowledged that the subordination
and related agreements set forth herein by the trustee are made solely in its
capacity as trustee and secured party under the indenture documents and with
respect to the notes (and not in its individual commercial capacity, except to
the extent that it is or becomes a holder). 
The trustee shall not have any duties, obligations, or responsibilities
to the senior creditor under this agreement except as expressly set forth
herein.  Nothing in this agreement shall
be construed to operate as a waiver by the trustee, with respect to the issuer
or any holder of any subordinated lien indebtedness, of the benefit of any
exculpatory provisions, presumptions, indemnities, protections, benefits, immunities
or reliance rights contained in the indenture, and, by their acknowledgment
hereof, the issuer expressly agrees that as between it and the trustee, the
trustee shall have such benefit with respect to all actions or omissions by the
trustee pursuant to this agreement.  For
all purposes of this agreement, the trustee may (a) rely in good faith, as to
matters of fact, on any representation of fact believed by trustee to be true
(without any duty of investigation) and that is contained in a written certificate
of any authorized representative of the issuer or of the senior creditor; (b)
rely in good faith, as to matters of law, on any advice received from its legal
counsel or an opinion of its counsel, counsel to the issuer or counsel to the
senior creditor, and shall have no liability for any action or omission taken
in reliance thereon; and (c) assume in good faith (without any duty of
investigation), and rely upon, the genuineness, due authority, validity, and
accuracy of any certificate, instrument, notice, or other document believed by
it in good faith to be genuine and presented by the proper person.


 


[signature page follows]


 


15

















 


IN WITNESS
WHEREOF, each Party has caused this Agreement to be duly executed and delivered
as of the date first above written.


 


	
   

  	
  Senior Creditor:

  
	
   

  	
   

  
	
   

  	
  TEXAS STATE BANK

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
   

  	
  Name: 

  
	
   

  	
   

  	
  Title: 

  
	
   

  	
   

  
	
   

  	
  Trustee:

  
	
   

  	
   

  
	
   

  	
  U.S. BANK NATIONAL ASSOCIATION

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
   

  	
  Name: 

  
	
   

  	
   

  	
  Title: