Exhibit
4.10


 




 





B&G FOODS HOLDINGS CORP.


 


AND EACH OF THE GUARANTORS PARTY HERETO


 


    % SENIOR NOTES DUE 2011


 












 


FORM OF INDENTURE


 


Dated as of
               ,
2004


 












 


The Bank of New York


 


Trustee




 





 

















 


CROSS-REFERENCE TABLE*


 


	
  Trust Indenture

  Act Section

  	
   

  	
  Indenture
  Section

  
	
  310

  	
  (a)(1)

  	
   

  	
   

  	
  7.10

  
	
   

  	
  (a)(2)

  	
   

  	
   

  	
  7.10

  
	
   

  	
  (a)(3)

  	
   

  	
   

  	
  N.A.

  
	
   

  	
  (a)(4)

  	
   

  	
   

  	
  N.A.

  
	
   

  	
  (a)(5)

  	
   

  	
   

  	
  7.10

  
	
   

  	
  (b)

  	
   

  	
   

  	
  7.10

  
	
   

  	
  (c)

  	
   

  	
   

  	
  N.A.

  
	
  311

  	
  (a)

  	
   

  	
   

  	
  7.11

  
	
   

  	
  (b)

  	
   

  	
   

  	
  7.11

  
	
   

  	
  (c)

  	
   

  	
   

  	
  N.A.

  
	
  312

  	
  (a)

  	
   

  	
   

  	
  2.05

  
	
   

  	
  (b)

  	
   

  	
   

  	
  12.03

  
	
   

  	
  (c)

  	
   

  	
   

  	
  12.03

  
	
  313

  	
  (a)

  	
   

  	
   

  	
  7.06

  
	
   

  	
  (b)

  	
   

  	
   

  	
  7.06; 7.07

  
	
   

  	
  (c)

  	
   

  	
   

  	
  7.06; 12.02

  
	
   

  	
  (d)

  	
   

  	
   

  	
  7.06

  
	
  314

  	
  (a)

  	
   

  	
   

  	
  4.03;12.02; 12.05

  
	
   

  	
  (b)

  	
   

  	
   

  	
  10.02

  
	
   

  	
  (c)(1)

  	
   

  	
   

  	
  12.04

  
	
   

  	
  (c)(2)

  	
   

  	
   

  	
  12.04

  
	
   

  	
  (c)(3)

  	
   

  	
   

  	
  N.A.

  
	
   

  	
  (d)

  	
   

  	
   

  	
  12.05

  
	
   

  	
  (e)

  	
   

  	
   

  	
  N.A.

  
	
  315

  	
  (a)

  	
   

  	
   

  	
  7.01

  
	
   

  	
  (b)

  	
   

  	
   

  	
  7.05; 12.02

  
	
   

  	
  (c)

  	
   

  	
   

  	
  7.01

  
	
   

  	
  (d)

  	
   

  	
   

  	
  7.01

  
	
   

  	
  (e)

  	
   

  	
   

  	
  6.11

  
	
  316(a) (last sentence)

  	
   

  	
  2.09

  
	
   

  	
  (a)(1)(A)

  	
   

  	
   

  	
  6.05

  
	
   

  	
  (a)(1)(B)

  	
   

  	
   

  	
  6.04

  
	
   

  	
  (a)(2)

  	
   

  	
   

  	
  N.A.

  
						



 












N.A. means not applicable.


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


 


i

















 


TABLE OF CONTENTS


 


	
  ARTICLE 1

  	
   

  
	
  DEFINITIONS AND INCORPORATION

  BY REFERENCE

  	
   

  
	
   

  	
   

  	
   

  
	
  Section
  1.01

  	
  Definitions.

  	
   

  
	
  Section
  1.02

  	
  Other
  Definitions.

  	
   

  
	
  Section
  1.03

  	
  Incorporation
  by Reference of Trust Indenture Act.

  	
   

  
	
  Section
  1.04

  	
  Rules
  of Construction.

  	
   

  
	
   

  	
   

  	
   

  
	
  ARTICLE 2

  	
   

  
	
  THE
  NOTES

  	
   

  
	
   

  	
   

  	
   

  
	
  Section
  2.02

  	
  Execution
  and Authentication.

  	
   

  
	
  Section
  2.03

  	
  Registrar
  and Paying Agent.

  	
   

  
	
  Section
  2.04

  	
  Paying
  Agent to Hold Money in Trust.

  	
   

  
	
  Section
  2.05

  	
  Holder
  Lists.

  	
   

  
	
  Section
  2.06

  	
  Transfer
  and Exchange.

  	
   

  
	
  Section
  2.07

  	
  Replacement
  Notes.

  	
   

  
	
  Section
  2.08

  	
  Outstanding
  Notes.

  	
   

  
	
  Section
  2.09

  	
  Treasury
  Notes.

  	
   

  
	
  Section
  2.10

  	
  Temporary
  Notes.

  	
   

  
	
  Section
  2.11

  	
  Cancellation.

  	
   

  
	
  Section
  2.12

  	
  Defaulted
  Interest.

  	
   

  
	
  Section
  2.13

  	
  CUSIP
  Numbers.

  	
   

  
	
   

  	
   

  	
   

  
	
  ARTICLE 3

  	
   

  
	
  REDEMPTION
  AND PREPAYMENT

  	
   

  
	
   

  	
   

  	
   

  
	
  Section
  3.01

  	
  Notices
  to Trustee.

  	
   

  
	
  Section
  3.02

  	
  Selection
  of Notes to Be Redeemed or Purchased.

  	
   

  
	
  Section
  3.03

  	
  Notice
  of Redemption.

  	
   

  
	
  Section
  3.04

  	
  Effect
  of Notice of Redemption.

  	
   

  
	
  Section
  3.05

  	
  Deposit
  of Redemption or Purchase Price.

  	
   

  
	
  Section
  3.06

  	
  Notes
  Redeemed or Purchased in Part.

  	
   

  
	
  Section
  3.07

  	
  Optional
  Redemption.

  	
   

  
	
  Section
  3.08

  	
  Mandatory
  Redemption.

  	
   

  
	
  Section
  3.09

  	
  Offer
  to Purchase by Application of Excess Proceeds.

  	
   

  
	
   

  	
   

  	
   

  
	
  ARTICLE 4

  	
   

  
	
  COVENANTS

  	
   

  
	
   

  	
   

  	
   

  
	
  Section
  4.01

  	
  Payment
  of Notes.

  	
   

  
	
  Section
  4.02

  	
  Maintenance
  of Office or Agency.

  	
   

  
	
  Section
  4.03

  	
  Reports.

  	
   

  
	
  Section
  4.04

  	
  Compliance
  Certificate.

  	
   

  
	
  Section
  4.05

  	
  Taxes.

  	
   

  
	
  Section
  4.06

  	
  Stay,
  Extension and Usury Laws.

  	
   

  
	
  Section
  4.07

  	
  Restricted
  Payments.

  	
   

  
	
  Section
  4.08

  	
  Dividend
  and Other Payment Restrictions Affecting Subsidiaries.

  	
   

  
	
  Section
  4.09

  	
  Incurrence
  of Indebtedness and Issuance of Preferred Stock.

  	
   

  
	
  Section
  4.10

  	
  Asset
  Sales.

  	
   

  



 


ii

















 


	
  Section
  4.11

  	
  Transactions
  with Affiliates.

  	
   

  
	
  Section
  4.12

  	
  Liens.

  	
   

  
	
  Section
  4.13

  	
  Business
  Activities.

  	
   

  
	
  Section
  4.14

  	
  Corporate
  Existence.

  	
   

  
	
  Section
  4.15

  	
  Offer
  to Repurchase Upon Change of Control.

  	
   

  
	
  Section
  4.16

  	
  No
  Amendment to Subordination Provisions.

  	
   

  
	
  Section
  4.17

  	
  Limitation
  on Sale and Leaseback Transactions.

  	
   

  
	
  Section
  4.18

  	
  Payments
  for Consent.

  	
   

  
	
  Section
  4.19

  	
  Additional
  Note Guarantees.

  	
   

  
	
  Section
  4.20

  	
  Designation
  of Restricted and Unrestricted Subsidiaries.

  	
   

  
	
   

  	
   

  	
   

  
	
  ARTICLE 5

  	
   

  
	
  SUCCESSORS

  	
   

  
	
   

  	
   

  	
   

  
	
  Section
  5.01

  	
  Merger,
  Consolidation, or Sale of Assets.

  	
   

  
	
  Section
  5.02

  	
  Successor
  Corporation Substituted.

  	
   

  
	
   

  	
   

  	
   

  
	
  ARTICLE 6

  	
   

  
	
  DEFAULTS
  AND REMEDIES

  	
   

  
	
   

  	
   

  	
   

  
	
  Section
  6.01

  	
  Events
  of Default.

  	
   

  
	
  Section
  6.02

  	
  Acceleration.

  	
   

  
	
  Section
  6.03

  	
  Other
  Remedies.

  	
   

  
	
  Section
  6.04

  	
  Waiver
  of Past Defaults.

  	
   

  
	
  Section
  6.05

  	
  Control
  by Majority.

  	
   

  
	
  Section
  6.06

  	
  Limitation
  on Suits.

  	
   

  
	
  Section
  6.07

  	
  Rights
  of Holders of Notes to Receive Payment.

  	
   

  
	
  Section
  6.08

  	
  Collection
  Suit by Trustee.

  	
   

  
	
  Section
  6.09

  	
  Trustee
  May File Proofs of Claim.

  	
   

  
	
  Section
  6.10

  	
  Priorities.

  	
   

  
	
  Section
  6.11

  	
  Undertaking
  for Costs.

  	
   

  
	
   

  	
   

  	
   

  
	
  ARTICLE 7

  	
   

  
	
  TRUSTEE

  	
   

  
	
   

  	
   

  	
   

  
	
  Section
  7.01

  	
  Duties
  of Trustee.

  	
   

  
	
  Section
  7.02

  	
  Rights
  of Trustee.

  	
   

  
	
  Section
  7.03

  	
  Individual
  Rights of Trustee.

  	
   

  
	
  Section
  7.04

  	
  Trustee’s
  Disclaimer.

  	
   

  
	
  Section
  7.05

  	
  Notice
  of Defaults.

  	
   

  
	
  Section
  7.06

  	
  Reports
  by Trustee to Holders of the Notes.

  	
   

  
	
  Section
  7.07

  	
  Compensation
  and Indemnity.

  	
   

  
	
  Section
  7.08

  	
  Replacement
  of Trustee.

  	
   

  
	
  Section
  7.09

  	
  Successor
  Trustee by Merger, etc.

  	
   

  
	
  Section
  7.10

  	
  Eligibility;
  Disqualification.

  	
   

  
	
  Section
  7.11

  	
  Preferential
  Collection of Claims Against Company.

  	
   

  
	
   

  	
   

  	
   

  
	
  ARTICLE 8

  	
   

  
	
  LEGAL
  DEFEASANCE AND COVENANT DEFEASANCE

  	
   

  
	
   

  	
   

  	
   

  
	
  Section
  8.01

  	
  Option
  to Effect Legal Defeasance or Covenant Defeasance.

  	
   

  
	
  Section
  8.02

  	
  Legal
  Defeasance and Discharge.

  	
   

  
	
  Section
  8.03

  	
  Covenant
  Defeasance.

  	
   

  
	
  Section
  8.04

  	
  Conditions
  to Legal or Covenant Defeasance.

  	
   

  



 


iii

















 


	
  Section
  8.05

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

  	
   

  
	
  Section
  8.06

  	
  Repayment
  to Company.

  	
   

  
	
  Section
  8.07

  	
  Reinstatement.

  	
   

  
	
   

  	
   

  	
   

  
	
  ARTICLE 9

  	
   

  
	
  AMENDMENT,
  SUPPLEMENT AND WAIVER

  	
   

  
	
   

  	
   

  	
   

  
	
  Section
  9.01

  	
  Without
  Consent of Holders of Notes.

  	
   

  
	
  Section
  9.02

  	
  With
  Consent of Holders of Notes.

  	
   

  
	
  Section
  9.03

  	
  Compliance
  with Trust Indenture Act.

  	
   

  
	
  Section
  9.04

  	
  Revocation
  and Effect of Consents.

  	
   

  
	
  Section
  9.05

  	
  Notation
  on or Exchange of Notes.

  	
   

  
	
  Section
  9.06

  	
  Trustee
  to Sign Amendments, etc.

  	
   

  
	
   

  	
   

  	
   

  
	
  ARTICLE 10

  	
   

  
	
  NOTE
  GUARANTEES

  	
   

  
	
   

  	
   

  	
   

  
	
  Section 10.01

  	
  Guarantee.

  	
   

  
	
  Section 10.02

  	
  Limitation on Guarantor Liability.

  	
   

  
	
  Section 10.03

  	
  Execution and Delivery of Note Guarantee.

  	
   

  
	
  Section 10.04

  	
  Guarantors May Consolidate, etc., on Certain Terms.

  	
   

  
	
  Section 10.05

  	
  Releases.

  	
   

  
	
   

  	
   

  	
   

  
	
  ARTICLE 11

  	
   

  
	
  SATISFACTION
  AND DISCHARGE

  	
   

  
	
   

  	
   

  	
   

  
	
  Section 11.01

  	
  Satisfaction and Discharge.

  	
   

  
	
  Section 11.02

  	
  Application of Trust Money.

  	
   

  
	
   

  	
   

  	
   

  
	
  ARTICLE 12

  	
   

  
	
  MISCELLANEOUS

  	
   

  
	
   

  	
   

  	
   

  
	
  Section 12.01

  	
  Trust Indenture Act Controls.

  	
   

  
	
  Section 12.02

  	
  Notices.

  	
   

  
	
  Section 12.03

  	
  Communication by Holders of Notes with Other Holders of Notes.

  	
   

  
	
  Section 12.04

  	
  Certificate and Opinion as to Conditions Precedent.

  	
   

  
	
  Section 12.05

  	
  Statements Required in Certificate or Opinion.

  	
   

  
	
  Section 12.06

  	
  Rules by Trustee and Agents.

  	
   

  
	
  Section 12.07

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

  	
   

  
	
  Section 12.08

  	
  Governing Law.

  	
   

  
	
  Section 12.09

  	
  No Adverse Interpretation of Other Agreements.

  	
   

  
	
  Section 12.10

  	
  Successors.

  	
   

  
	
  Section 12.11

  	
  Severability.

  	
   

  
	
  Section 12.12

  	
  Counterpart Originals.

  	
   

  
	
  Section 12.13

  	
  Table of Contents, Headings, etc.

  	
   

  
	
  Section 12.14

  	
  Waiver of Jury Trial.

  	
   

  
	
   

  	
   

  	
   

  
	
  EXHIBITS

  	
   

  
	
   

  	
   

  	
   

  
	
  Exhibit A

  	
  FORM OF NOTE

  	
   

  
	
  Exhibit
  B

  	
  FORM
  OF NOTATION OF GUARANTEE

  	
   

  
	
  Exhibit
  C

  	
  FORM
  OF SUPPLEMENTAL INDENTURE

  	
   

  
				



 


iv

















 


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


 


The Company, the Guarantors and the Trustee agree as
follows for the benefit of each other and for the equal and ratable benefit of
the Holders (as defined) of the      % Senior Notes
due 2011 (the “Notes”):


 


ARTICLE 1

DEFINITIONS AND INCORPORATION

BY REFERENCE


 


Section 1.01           Definitions.


 


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


 


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


 


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


 


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


 


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


 


“Affiliate”
of any specified Person means any other Person directly or indirectly
controlling or controlled by or under direct or indirect common control with
such specified Person. For purposes of this definition, “control,” as used with
respect to any Person, means the possession, directly or indirectly, of the
power to direct or cause the direction of the management or policies of such
Person, whether through the ownership of voting securities, by agreement or
otherwise; provided
that beneficial ownership of 10% or more of the Voting Stock of a Person will
be deemed to be control.  For purposes
of this definition, the terms “controlling,” “controlled by” and “under common
control with” have correlative meanings.


 


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


 


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


 


“Asset Sale” means


 


(1) the sale, lease,
conveyance or other disposition of any assets or rights; provided that the sale, lease, conveyance
or other disposition of all or substantially all of the assets of the


 


1

















 


Company and its Restricted Subsidiaries taken as a
whole will be governed by Section 4.15 hereof and/or Section 5.01 hereof and
not Section 4.10 hereof; and


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


(6)
the surrender or waiver of contract rights, the settlement, release or surrender
of contract, tort or other litigation claims in the ordinary course of
business, and the granting of (or permitted realization of) Liens not
prohibited by this Indenture; and


 


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


 


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


 


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


 


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


 


“Board of Directors” means:


 


2

















 


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


 


(2) with
respect to a partnership, the Board of Directors of the general partner of the
partnership;


 


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


 


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


 


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


 


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


 


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


 


in each case determined in accordance with GAAP.


 


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


 


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


 


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


 


“Capital
Stock” means:


 


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


 


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


 


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


 


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


 


“Cash
Equivalents” means:


 


3

















 


(1)
United States dollars and Canadian dollars;


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


“Clearstream”
means Clearstream Banking, S.A.


 


“Company”  means B&G Holdings Co. and any and all
successors thereto.


 


4

















 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


(2) the Net Income of any
Restricted Subsidiary will be excluded to the extent that the declaration or
payment of dividends or similar distributions by that Restricted Subsidiary of
that Net Income to such Person and its Restricted Subsidiaries is not at the
date of determination


 


5

















 


permitted without any prior governmental approval
(that has not been obtained) or, directly or indirectly, by operation of the
terms of its charter or any agreement, instrument, judgment, decree, order,
statute, rule or governmental regulation applicable to that Restricted
Subsidiary or its stockholders; and


 


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


 


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


 


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


 


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


 


“Corporate
Trust Office of the Trustee” will be at the address of the
Trustee specified in Section 12.02 hereof or such other address as to which the
Trustee may give notice to the Company.


 


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


 


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


 


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


 


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


 


“Definitive
Note” means a certificated Note registered in the name of the
Holder thereof and issued in accordance with Section 2.06 hereof, substantially
in the form of Exhibit A hereto except that such Note shall not bear the Global
Note Legend and shall not have the “Schedule of Exchanges of Interests in the
Global Note” attached thereto.


 


“Depositary”
means, with respect to the Notes issuable or issued in whole or in part in
global form, the Person specified in Section 2.03 hereof as the Depositary with
respect to the Notes, and any and


 


6

















 


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


 


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


 


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


 


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


 


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


 


“Euroclear”
means Euroclear Bank, S.A./N.V., as operator of the Euroclear system.


 


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


 


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


 


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


 


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


 


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


 


7

















 


(4) the aggregate
principal amount of long-term Indebtedness repaid by such Person and its
Restricted Subsidiaries and the repayment by such Person and any Restricted
Subsidiary of any short-term Indebtedness that financed capital expenditures
referred to in clause (3) above, excluding any such repayments (a) under
working capital facilities (except to the extent that such Indebtedness so
repaid was incurred to finance capital expenditures as described in clause (3)
above, (b) out of Net Proceeds of Assets Sales as provided in Section 3.09
hereof and (c) through a refinancing involving the incurrence of new long-term
Indebtedness.


 


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


 


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


 


“First Four Dividend Payments” means the dividend payments contemplated to
be made by the Company to holders of Class A common stock on January 30, 2005,
April 30, 2005, July 30, 2005 and October 30, 2005 for the
partial quarterly dividend payment period ending January 1, 2005 and the
full quarterly dividend payment periods ending April 2, 2005, July 2,
2005 and October 1, 2005, provided that the dollar amount of such
quarterly dividend payments shall not be greater than $0.19865 per share of
Class A common stock.


 


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


 


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


 


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


 


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


 


8

















 


(3) the Fixed Charges
attributable to discontinued operations, as determined in accordance with GAAP,
and operations or businesses (and ownership interests therein) disposed of
prior to the Calculation Date, will be excluded, but only to the extent that
the obligations giving rise to such Fixed Charges will not be obligations of
the specified Person or any of its Restricted Subsidiaries following the
Calculation Date;


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


(4) the product of (a)
all dividends, whether paid or accrued and whether or not in cash, on any
series of preferred stock of such Person or any of its Restricted Subsidiaries,
other than dividends on Equity Interests payable solely in Equity Interests of
the Company (other than Disqualified Stock) or to the Company or a Restricted
Subsidiary of the Company, times
(b) a fraction, the numerator of which is one and the denominator of which is
one minus the then current combined federal, state and local statutory tax rate
of such Person, expressed as a decimal, in each case, determined on a
consolidated basis in accordance with GAAP; minus


 


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


 


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


 


9

















 


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


 


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


 


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


 


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


 


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


 


“Guarantors”
means each of:


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


10

















 


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


 


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


 


(1) in respect of
borrowed money;


 


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


 


(3) in respect of
banker’s acceptances;


 


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


 


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


 


(6) representing any
Hedging Obligations,


 


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


 


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


 


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


 


“Initial
Notes” means the first $150,000,000 aggregate principal
amount of Notes issued under this Indenture on the date hereof.


 


“Investments”
means, with respect to any Person, all direct or indirect investments by such
Person in other Persons (including Affiliates) in the forms of loans (including
Guarantees or other obligations), advances or capital contributions (excluding
accounts receivable, trade credit and advances to customers in the ordinary
course of business and commission, travel and similar advances to officers and
employees made in the ordinary course of business), purchases or other
acquisitions for consideration of Indebtedness, Equity Interests or other
securities, together with all items that are or would be classified as
investments on a balance sheet prepared in accordance with GAAP.  If the Company or any Subsidiary of the
Company sells or otherwise disposes of any Equity Interests of any direct or
indirect Subsidiary of


 


11

















 


the Company such that, after giving effect to any such sale or
disposition, such Person is no longer a Subsidiary of the Company, the Company
will be deemed to have made an Investment on the date of any such sale or
disposition equal to the Fair Market Value of the Company’s Investments in such
Subsidiary that were not sold or disposed of in an amount determined as
provided in Section 4.07(c) hereof.  The
acquisition by the Company or any Subsidiary of the Company of a Person that
holds an Investment in a third Person will not be deemed to be an Investment by
the Company or such Subsidiary in such third Person if the purpose of such
acquisition by the Company or such Subsidiary was not the Investment in such
third Person.  Except as otherwise
provided in this Indenture, the amount of an Investment will be determined at
the time the Investment is made and without giving effect to subsequent changes
in value.


 


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


 


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


 


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


 


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


 


“Lien”
means, with respect to any asset, any mortgage, lien, pledge, charge, security
interest or encumbrance of any kind in respect of such asset, whether or not
filed, recorded or otherwise perfected under applicable law, including any
conditional sale or other title retention agreement, any lease in the nature
thereof, any option or other agreement to sell or give a security interest in
and any filing of or agreement to give any financing statement relating to a
lien on an asset under the Uniform Commercial Code (or equivalent statutes) of
any jurisdiction.


 


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


 


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


 


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


 


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


 


(a)  any Asset Sale; or


 


12

















 


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


 


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


 


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


 


“Non-Recourse Debt” means Indebtedness:


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


13

















 


“Officers’
Certificate” means a certificate signed on behalf of the
Company by two Officers of the Company, one of whom must be the principal
executive officer, the principal financial officer, the treasurer or the
principal accounting officer of the Company, that meets the requirements of
Section 12.05 hereof.


 


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


 


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


 


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


 


“Permitted
Investments” means:


 


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


 


(2) any Investment in
Cash Equivalents;


 


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


 


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


 


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


 


(4) any Investment made
as a result of the receipt of non-cash consideration from an Asset Sale that
was made pursuant to and in compliance with Section 4.10 hereof;


 


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


 


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


 


(7) Investments
represented by Hedging Obligations;


 


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


 


14

















 


(9) repurchases of the
Notes;


 


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


 


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


 


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


 


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


 


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


 


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


 


“Permitted
Liens” means:


 


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


 


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


 


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


 


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


 


(5) Liens to secure the
performance of statutory obligations, surety or appeal bonds, performance
bonds, deposits to secure the performance of bids, trade contracts, government
contracts, warranty requirements, leases or licenses or other obligations of a
like nature or


 


15

















 


incurred in the ordinary course of business
(including, without limitation, landlord Liens on leased real property and
rights of offset and set-off);


 


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


 


(7) Liens existing on the
date hereof;


 


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


 


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


 


(10) survey exceptions,
easements or reservations of, or rights of others for, licenses, rights-of-way,
sewers, electric lines, telegraph and telephone lines and other similar
purposes, or zoning or other restrictions as to the use of real property that
were not incurred in connection with Indebtedness and that do not in the
aggregate materially adversely affect the value of said properties or
materially impair their use in the operation of the business of such Person;


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


16

















 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


(3) if the Indebtedness
being renewed, refunded, refinanced, replaced, defeased or discharged is
subordinated in right of payment to the Notes, such Permitted Refinancing
Indebtedness has a final maturity date later than the final maturity date of,
and is subordinated in


 


17

















 


right of payment to, the
Notes on terms at least as favorable to the holders of Notes as those contained
in the documentation governing the Indebtedness being renewed, refunded,
refinanced, replaced, defeased or discharged; and


 


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


 


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


 


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


 


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


 


“Related
Party” means


 


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


 


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


 


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


 


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


 


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


 


“SEC”
means the Securities and Exchange Commission.


 


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


 


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


 


18

















 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


 “Unrestricted Subsidiary” means any
Subsidiary of the Company that is designated by the Board of Directors of the
Company as an Unrestricted Subsidiary pursuant to a resolution of the Board of
Directors, but only to the extent that such Subsidiary:


 


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


 


19

















 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


Section 1.02           Other
Definitions.


 


	
  Term

  	
   

  	
  Defined in

  Section

  
	
   

  	
   

  	
   

  
	
  “Affiliate
  Transaction”

  	
   

  	
  4.11

  
	
  “Asset
  Sale Offer”

  	
   

  	
  3.09

  
	
  “Authentication
  Order”

  	
   

  	
  2.02

  
	
  “Change
  of Control Offer”

  	
   

  	
  4.15

  
	
  “Change
  of Control Payment”

  	
   

  	
  4.15

  
	
  “Change
  of Control Payment Date”

  	
   

  	
  4.15

  
	
  “Covenant
  Defeasance”

  	
   

  	
  8.03

  
	
  “DTC”

  	
   

  	
  2.03

  
	
  “Event
  of Default”

  	
   

  	
  6.01

  
	
  “Excess
  Proceeds”

  	
   

  	
  4.10

  
	
  “Incremental
  Funds”

  	
   

  	
  4.07

  
	
  “incur”

  	
   

  	
  4.09

  
	
  “Legal
  Defeasance”

  	
   

  	
  8.02

  
	
  “Offer
  Amount”

  	
   

  	
  3.09

  
	
  “Offer
  Period”

  	
   

  	
  3.09

  
	
  “Paying
  Agent”

  	
   

  	
  2.03

  



 


20

















 


	
  Term

  	
   

  	
  Defined in

  Section

  
	
   

  	
   

  	
   

  
	
  “Permitted
  Debt”

  	
   

  	
  4.09

  
	
  “Payment
  Default”

  	
   

  	
  6.01

  
	
  “Purchase
  Date”

  	
   

  	
  3.09

  
	
  “Redemption
  Date”

  	
   

  	
  3.07

  
	
  “Registrar”

  	
   

  	
  2.03

  
	
  “Restricted
  Payments”

  	
   

  	
  4.07

  



 


Section 1.03           Incorporation
by Reference of Trust Indenture Act.


 


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


 


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


 


“indenture
securities” means the Notes;


 


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


 


“indenture
to be qualified” means this Indenture;


 


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


 


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


 


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


 


Section 1.04           Rules of
Construction.


 


Unless the context otherwise requires:


 


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


 


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


 


(3) “or”
is not exclusive;


 


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


 


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


 


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


 


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


 


21

















 


ARTICLE 2


THE NOTES


 


Section 2.01           Form and Dating.


 


(a)  General.  The Notes and the Trustee’s certificate of
authentication will be substantially in the form of Exhibit A hereto.  The Notes may have notations, legends or
endorsements required by law, stock exchange rule or usage.  Each Note will be dated the date of its
authentication.  The Notes shall be in
denominations of $1,000 and integral multiples thereof.


 


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


 


(b)  Global Notes.  Notes issued in global form will be substantially
in the form of Exhibit A hereto (including the Global Note Legend thereon and
the “Schedule of Exchanges of Interests in the Global Note” attached
thereto).  Notes issued in definitive
form will be substantially in the form of Exhibit A1 hereto (but without the
Global Note Legend thereon and without the “Schedule of Exchanges of Interests
in the Global Note” attached thereto). 
Each Global Note will represent such of the outstanding Notes as will be
specified therein and each shall provide that it represents the aggregate
principal amount of outstanding Notes from time to time endorsed thereon and
that the aggregate principal amount of outstanding Notes represented thereby
may from time to time be reduced or increased, as appropriate, to reflect exchanges
and redemptions.  Any endorsement of a
Global Note to reflect the amount of any increase or decrease in the aggregate
principal amount of outstanding Notes represented thereby will be made by the
Trustee or the Custodian, at the direction of the Trustee, in accordance with
instructions given by the Holder thereof as required by Section 2.06 hereof.


 


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


 


Section 2.02           Execution
and Authentication.


 


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


 


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


 


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


 


The Trustee will, upon receipt of a written order of
the Company signed by at least one Officer (an “Authentication Order”),
authenticate Notes for original issue that may be validly issued under this
Indenture, including any Additional Notes up to the aggregate principal amount
stated in paragraph 4 of the Notes.  The
aggregate principal amount of Notes outstanding at any time may not exceed the
aggregate principal amount of Notes authorized for issuance by the Company
pursuant to one or more Authentication Orders, except as provided in Section
2.07 hereof.


 


22

















 


The Trustee may appoint an authenticating agent
acceptable to the Company to authenticate Notes.  An authenticating agent may authenticate Notes whenever the
Trustee may do so.  Each reference in
this Indenture to authentication by the Trustee includes authentication by such
agent.  An authenticating agent has the
same rights as an Agent to deal with Holders or an Affiliate of the Company.


 


Section 2.03           Registrar
and Paying Agent.


 


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


 


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


 


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


 


Section 2.04           Paying Agent
to Hold Money in Trust.


 


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


 


Section 2.05           Holder
Lists.


 


The Trustee will preserve in as current a form as is
reasonably practicable the most recent list available to it of the names and
addresses of all Holders and shall otherwise comply with TIA
§ 312(a).  If the Trustee is not
the Registrar, the Company will furnish to the Trustee at least seven Business
Days before each interest payment date and at such other times as the Trustee
may request in writing, a list in such form and as of such date as the Trustee
may reasonably require of the names and addresses of the Holders of Notes and
the Company shall otherwise comply with TIA § 312(a).


 


Section 2.06           Transfer and
Exchange.


 


(a)  Transfer and Exchange of Global Notes.  A Global Note may not be transferred except
as a whole by the Depositary to a nominee of the Depositary, by a nominee of
the Depositary to the Depositary or to another nominee of the Depositary, or by
the Depositary or any such nominee to a


 


23

















 


successor
Depositary or a nominee of such successor Depositary.  All Global Notes will be exchanged by the Company for Definitive
Notes if:


 


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


 


(2) the Company in its
sole discretion determines that the Global Notes (in whole but not in part)
should be exchanged for Definitive Notes and delivers a written notice to such
effect to the Trustee;  or


 


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


 


Upon the occurrence of either of the preceding events
in (1) or (2) above, Definitive Notes shall be issued in such names as the
Depositary shall instruct the Trustee. 
Global Notes also may be exchanged or replaced, in whole or in part, as
provided in Sections 2.07 and 2.10 hereof. 
Every Note authenticated and delivered in exchange for, or in lieu of, a
Global Note or any portion thereof, pursuant to this Section 2.06 or Section
2.07 or 2.10 hereof, shall be authenticated and delivered in the form of, and
shall be, a Global Note.  A Global Note
may not be exchanged for another Note other than as provided in this Section
2.06(a), however, beneficial interests in a Global Note may be transferred and
exchanged as provided in Section 2.06(b) or (c) hereof.


 


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


 


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


 


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


 


24

















 


one or
more Global Notes in an aggregate principal amount equal to the principal
amount of Definitive Notes so transferred.


 


(e)  Transfer and Exchange of Definitive
Notes for Definitive Notes. 
Upon request by a Holder of Definitive Notes and such Holder’s
compliance with the provisions of this Section 2.06(e), the Registrar will
register the transfer or exchange of Definitive Notes.  Prior to such registration of transfer or
exchange, the requesting Holder must present or surrender to the Registrar the
Definitive Notes duly endorsed or accompanied by a written instruction of
transfer in form satisfactory to the Registrar duly executed by such Holder or
by its attorney, duly authorized in writing.


 


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


 


“THIS GLOBAL NOTE IS HELD BY THE DEPOSITARY (AS
DEFINED IN THE INDENTURE GOVERNING THIS NOTE) OR ITS NOMINEE IN CUSTODY FOR THE
BENEFIT OF THE BENEFICIAL OWNERS HEREOF, AND IS NOT TRANSFERABLE TO ANY PERSON
UNDER ANY CIRCUMSTANCES EXCEPT THAT (1) THE TRUSTEE MAY MAKE SUCH NOTATIONS
HEREON AS MAY BE REQUIRED PURSUANT TO SECTION 2.06 OF THE INDENTURE, (2) THIS
GLOBAL NOTE MAY BE EXCHANGED IN WHOLE BUT NOT IN PART PURSUANT TO SECTION
2.06(a) OF THE INDENTURE, (3) THIS GLOBAL NOTE MAY BE DELIVERED TO THE TRUSTEE
FOR CANCELLATION PURSUANT TO SECTION 2.11 OF THE INDENTURE AND (4) THIS GLOBAL
NOTE MAY BE TRANSFERRED TO A SUCCESSOR DEPOSITARY WITH THE PRIOR WRITTEN
CONSENT OF B&G FOODS HOLDINGS CORP.


 


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


 


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


 


25

















 


(h)  General Provisions Relating to
Transfers and Exchanges.


 


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


 


(2) No
service charge will be made to a Holder of a beneficial interest in a Global
Note or to a Holder of a Definitive Note for any registration of transfer or
exchange, but the Company may require payment of a sum sufficient to cover any
transfer tax or similar governmental charge payable in connection therewith
(other than any such transfer taxes or similar governmental charge payable upon
exchange or transfer pursuant to Sections 2.10, 3.06, 3.09, 4.10, 4.15 and 9.05
hereof).


 


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


 


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


 


(5)
Neither the Registrar nor the Company will be required:


 


(A) to
issue, to register the transfer of or to exchange any Notes during a period
beginning at the opening of business 15 days before the day of any selection of
Notes for redemption under Section 3.02 hereof and ending at the close of
business on the day of selection;


 


(B) to
register the transfer of or to exchange any Note selected for redemption in
whole or in part, except the unredeemed portion of any Note being redeemed in
part; or


 


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


 


(6)
Prior to due presentment for the registration of a transfer of any Note, the
Trustee, any Agent and the Company may deem and treat the Person in whose name
any Note is registered as the absolute owner of such Note for the purpose of
receiving payment of principal of and interest on such Notes and for all other
purposes, and none of the Trustee, any Agent or the Company shall be affected
by notice to the contrary.


 


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


 


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


 


26

















 


Section 2.07           Replacement
Notes.


 


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


 


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


 


Section 2.08           Outstanding
Notes.


 


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


 


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


 


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


 


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


 


Section 2.09           Treasury
Notes.


 


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


 


Section 2.10           Temporary
Notes.


 


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


 


27

















 


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


 


Section 2.11           Cancellation.


 


The Company at any time may deliver Notes to the
Trustee for cancellation.  The Registrar
and Paying Agent will forward to the Trustee any Notes surrendered to them for
registration of transfer, exchange or payment. 
The Trustee and no one else will cancel all Notes surrendered for
registration of transfer, exchange, payment, replacement or cancellation and
will dispose of such canceled Notes (subject to the record retention
requirement of the Exchange Act) in its customary manner.  Certification of the disposition of all
canceled Notes will be delivered to the Company upon its written request
therefor.  The Company may not issue new
Notes to replace Notes that it has paid or that have been delivered to the
Trustee for cancellation.


 


Section 2.12           Defaulted
Interest.


 


If the Company defaults in a payment of interest on
the Notes, it will pay the defaulted interest in any lawful manner plus, to the
extent lawful, interest payable on the defaulted interest, to the Persons who
are Holders on a subsequent special record date, in each case at the rate
provided in the Notes and in Section 4.01 hereof.  The Company will notify the Trustee in writing of the amount of
defaulted interest proposed to be paid on each Note and the date of the
proposed payment.  The Company will fix
or cause to be fixed each such special record date and payment date; provided
that no such special record date may be less than 10 days prior to the related
payment date for such defaulted interest. 
At least 15 days before the special record date, the Company (or, upon
the written request of the Company, the Trustee in the name and at the expense
of the Company) will mail or cause to be mailed to Holders a notice that states
the special record date, the related payment date and the amount of such
interest to be paid.


 


Section 2.13           CUSIP
Numbers.


 


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


 


ARTICLE 3


REDEMPTION AND PREPAYMENT


 


Section 3.01           Notices to
Trustee.


 


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


 


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


 


(2) the
redemption date;


 


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


 


28

















 


(4) the
redemption price.


 


Section 3.02           Selection of
Notes to Be Redeemed or Purchased.


 


If less than all of the Notes are to be redeemed or
purchased in an offer to purchase at any time, the Trustee will select Notes
for redemption or purchase in principal amounts of $1,000 or integral multiples
thereof (by lot, on a pro rata basis or another method the
Trustee deems appropriate except:


 


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


 


(2) if
otherwise required by law.


 


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


 


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


 


Section 3.03           Notice of
Redemption.


 


Subject to the provisions of Section 3.09 hereof, at
least 30 days but not more than 60 days before a redemption date, the Company
will mail or cause to be mailed, by first class mail, a notice of redemption to
each Holder whose Notes are to be redeemed at its registered address, except
that redemption notices may be mailed more than 60 days prior to a redemption
date if the notice is issued in connection with a defeasance of the Notes or a
satisfaction and discharge of this Indenture pursuant to Articles 8 or 11 hereof.


 


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


 


(1) the
redemption date;


 


(2) the
redemption price;


 


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


 


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


 


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


 


29

















 


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


 


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


 


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


 


At the Company’s request, the Trustee will give the
notice of redemption in the Company’s name and at its expense; provided,
however, that the Company has delivered to the Trustee, at least 45
days prior to the redemption date, an Officers’ Certificate requesting that the
Trustee give such notice and setting forth the information to be stated in such
notice as provided in the preceding paragraph.


 


Section 3.04           Effect of
Notice of Redemption.


 


Once notice of redemption is mailed in accordance with
Section 3.03 hereof, Notes called for redemption become irrevocably due and
payable on the redemption date at the redemption price.  A notice of redemption may not be conditional.


 


Section 3.05           Deposit of
Redemption or Purchase Price.


 


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


 


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


 


Section 3.06           Notes
Redeemed or Purchased in Part.


 


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


 


Section 3.07           Optional
Redemption.


 


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


 


30

















 


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


 


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


 


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


 


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


 


(c)  On or after
              ,
2008, the Company may redeem all or a part of the Notes upon not less than 30
nor more than 60 days’ notice, at the redemption prices (expressed as
percentages of principal amount) set forth below plus accrued and unpaid
interest on the Notes redeemed, to the applicable redemption date, if redeemed
during the twelve-month period beginning on             
of the years indicated below, subject to the rights of Holders of Notes on the
relevant record date to receive interest on the relevant interest payment date:


 




	
  Year

  	
   

  	
  Percentage

  	
   

  
	
  2008

  	
   

  	
   

  	
  %

  
	
  2009

  	
   

  	
   

  	
  % 

  
	
  2010 and thereafter

  	
   

  	
  100.000

  	
  % 

  






 


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


 


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


 


Section 3.08           Mandatory
Redemption.


 


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


 


Section 3.09           Offer to
Purchase by Application of Excess Proceeds.


 


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


 


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


 


31

















 


pari passu
Indebtedness (on a pro rata
basis, if applicable) or, if less than the Offer Amount has been tendered, all
Notes and other Indebtedness tendered in response to the Asset Sale Offer.  Payment for any Notes so purchased will be
made in the same manner as interest payments are made.


 


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


 


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


 


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


 


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


 


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


 


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


 


(5) that
Holders electing to have a Note purchased pursuant to an Asset Sale Offer may
elect to have Notes purchased in integral multiples of $1,000 only;


 


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


 


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


 


(8)
that, if the aggregate principal amount of Notes and other pari passu Indebtedness
surrendered by holders thereof exceeds the Offer Amount, the Company will
select the Notes and other pari passu Indebtedness to be purchased on
a pro rata basis based on the
principal amount of Notes and such other pari passu Indebtedness surrendered (with
such adjustments as may be deemed appropriate by the Company so that only Notes
in denominations of $1,000, or integral multiples thereof, will be purchased);
and


 


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


 


32

















 


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


 


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


 


ARTICLE 4


COVENANTS


 


Section 4.01           Payment of
Notes.


 


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


 


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


 


Section 4.02           Maintenance
of Office or Agency.


 


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


 


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


 


33

















 


New York for such
purposes.  The Company will give prompt
written notice to the Trustee of any such designation or rescission and of any
change in the location of any such other office or agency.


 


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


 


Section 4.03           Reports.


 


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


 


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


 


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


 


In addition, the Company will file a copy of each of
the reports referred to in clauses (1) and (2) above with the SEC for public
availability within the time periods specified in the rules and regulations
applicable to such reports (unless the SEC will not accept such a filing) and
will post the reports on its website within those time periods.  The Company will at all times comply with
TIA § 314(a).


 


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


 


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


 


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


 


Delivery of such reports,
information and documents to the Trustee is for informational purposes only and
the Trustee’s receipt of such shall not constitute constructive notice of any
information contained therein or determinable from information contained
therein, including the Company’s compliance with any of its covenants hereunder
(as to which the Trustee is entitled to rely exclusively on Officers’
Certificates).


 


34

















 


Section 4.04           Compliance
Certificate.


 


(a) The Company and each Guarantor
(to the extent that such Guarantor is so required under the TIA) shall deliver
to the Trustee, within 90 days after the end of each fiscal year, an Officers’
Certificate stating that a review of the activities of the Company and its
Subsidiaries during the preceding fiscal year has been made under the
supervision of the signing Officers with a view to determining whether the
Company has kept, observed, performed and fulfilled its obligations under this
Indenture, and further stating, as to each such Officer signing such
certificate, that to the best of his or her knowledge the Company has kept,
observed, performed and fulfilled each and every covenant contained in this
Indenture and is not in default in the performance or observance of any of the
terms, provisions and conditions of this Indenture (or, if a Default or Event
of Default has occurred, describing all such Defaults or Events of Default of
which he or she may have knowledge and what action the Company is taking or
proposes to take with respect thereto) and that to the best of his or her
knowledge no event has occurred and remains in existence by reason of which
payments on account of the principal of or interest, if any, on the Notes is
prohibited or if such event has occurred, a description of the event and what
action the Company is taking or proposes to take with respect thereto.


 


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


 


(c) So long as any of the Notes
are outstanding, the Company will deliver to the Trustee, forthwith (and in any
event within 10 days) upon any Officer becoming aware of any Default or Event
of Default, an Officers’ Certificate specifying such Default or Event of
Default and what action the Company is taking or proposes to take with respect
thereto.


 


Section 4.05           Taxes.


 


The Company will pay, and will cause each of its
Subsidiaries to pay, prior to delinquency, all material taxes, assessments, and
governmental levies except such as are contested in good faith and by
appropriate proceedings or where the failure to effect such payment is not
adverse in any material respect to the Holders of the Notes.


 


Section 4.06           Stay,
Extension and Usury Laws.


 


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


 


35

















 


 


Section 4.07           Restricted
Payments.


 


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


 


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


 


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


 


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


 


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


 


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


 


(1) if
the Fixed Charge Coverage Ratio for the Company’s four most recent fiscal
quarters for which internal financial statements are available is not less than
1.6 to 1, such Restricted Payment, together with the aggregate amount of all
other Restricted Payments made by the Company and its Restricted Subsidiaries
since the date hereof (except for Restricted Payments made pursuant to Section
4.07(b)(1) (so long as such Restricted Payment was previously included for
purposes of this calculation (to the extent required to be so included) at the
time of its declaration), 4.07(b)(2), 4.07(b)(3), 4.07(b)(6), 4.07(b)(11),
4.07(b)(13), 4.07(b)(14) and 4.07(b)(15) below, is less than the sum, without
duplication of:


 


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


 


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


 


36

















 


Equity Interests (other than Equity
Interests (or Disqualified Stock or debt securities) sold to a Subsidiary of
the Company); plus


 


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


 


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


 


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


 


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


 


(2) if
the Fixed Charge Coverage Ratio for the Company’s four most recent fiscal
quarters for which internal financial statements are available is less than 1.6
to 1, such Restricted Payment, together with the aggregate amount of all other
Restricted Payments made by the Company and its Restricted Subsidiaries since
the beginning of the fiscal quarter in which such Restricted Payment is made
(such Restricted Payments for purposes of this clause (2) meaning only
distributions on the Company’s common stock), is less than the sum, without
duplication, of:


 


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


 


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


 


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


 


(b) 
The preceding provisions will not prohibit:


 


(1) the
payment of any dividend or the consummation of any irrevocable redemption
within 60 days after the date of declaration of the dividend or giving of the
redemption notice, as


 


37

















 


the case may be, if at the date of
declaration or notice, the dividend or redemption payment would have complied
with the provisions of this Indenture;


 


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


 


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


 


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


 


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


 


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


 


(7) so
long as no Default has occurred and is continuing or would be caused thereby,
the declaration and payment of regularly scheduled or accrued dividends to
holders of any class or series of Disqualified Stock of the Company or any Restricted
Subsidiary of the Company issued on or after the date of this Indenture in
accordance with Section 4.09 hereof;


 


38

















 


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


 


(9)
repurchases of Capital Stock deemed to occur upon the exercise of stock options
if the Capital Stock represents a portion of the exercise price thereof;


 


(10)
payments of dividends to the Company solely to enable it to make payments to
holders of its Capital Stock in lieu of the issuance of fractional shares of
its Capital Stock;


 


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


 


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


 


(13) the
repurchase of the Company’s Class B common stock on the date hereof or on the
closing date(s) of the exercise of the over-allotment option relating to the
EISs (which closing date(s) shall occur on or before [ ], 2004);


 


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


 


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


 


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


 


39

















 


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


 


Section 4.08           Dividend and
Other Payment Restrictions Affecting Subsidiaries.


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


40

















 


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


 


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


 


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


 


(8)
Permitted Refinancing Indebtedness; provided that the encumbrances or
restrictions contained in the agreements governing such Permitted Refinancing
Indebtedness are, in the good faith judgment of the senior management or Board
of Directors of the Company, not materially more restrictive, taken as a whole,
than those contained in the agreements governing the Indebtedness being
refinanced;


 


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


 


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


 


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


 


Section 4.09           Incurrence
of Indebtedness and Issuance of Preferred Stock.


 


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


 


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


 


(1) the
incurrence by the Company and any of its Restricted Subsidiaries of additional
Indebtedness and letters of credit under Credit Facilities in an aggregate
principal amount at any one time outstanding under this clause (1) (with
letters of credit being deemed to have a principal


 


41

















 


amount equal to the maximum potential
liability of the Company and its Restricted Subsidiaries thereunder) not to
exceed the greater of (x) $50.0 million and (y) the amount of the Borrowing
Base as of the date of such incurrence;


 


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


 


(3) the
incurrence of up to $190.0 million of Subordinated Notes and the related
guarantees thereof by the Company and the Guarantors;


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


42

















 


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


 


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


 


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


 


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


 


(10) the
guarantee by the Company or any of its Restricted Subsidiaries of Indebtedness
of the Company or a Restricted Subsidiary of the Company that was permitted to
be incurred by another provision of this Section 4.09; provided that if the Indebtedness being
guaranteed is subordinated to or pari passu
with the Notes, then the Guarantee shall be subordinated or pari passu, as applicable, to the same
extent as the Indebtedness guaranteed;


 


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


 


(12) the
incurrence by the Company or any of its Restricted Subsidiaries of Indebtedness
arising from the honoring by a bank or other financial institution of a check,
draft or similar instrument inadvertently drawn against insufficient funds in
the ordinary course of business;


 


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


 


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


 


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


 


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


 


43

















 


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


 


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


 


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


 


(18) the
incurrence by the Company or any of its Restricted Subsidiaries of additional
Indebtedness in an aggregate principal amount (or accreted value, as
applicable) at any time outstanding, including all Permitted Refinancing
Indebtedness incurred to renew, refund, refinance, replace, defease or discharge
any Indebtedness incurred pursuant to this clause (18), not to exceed $20.0
million; and


 


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


 


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


 


44

















 


For purposes of determining compliance with this
Section 4.09, in the event that an item of proposed Indebtedness meets the
criteria of more than one of the categories of Permitted Debt described in
clauses (1) through (19) above or is entitled to be incurred pursuant to
Section 4.09(a) hereof, the Company will be permitted to classify such item of
Indebtedness on the date of its incurrence, or later reclassify all or a
portion of such item of Indebtedness, in any manner that complies with this
Section 4.09.  Indebtedness under Credit
Facilities outstanding on the date on which Notes are first issued and
authenticated under this Indenture will initially be deemed to have been
incurred on such date in reliance on the exception provided by clause (1) of
the definition of Permitted Debt.  The
accrual of interest, the accretion or amortization of original issue discount,
the payment of interest on any Indebtedness in the form of additional
Indebtedness with the same terms, and the payment of dividends on Disqualified
Stock in the form of additional shares of the same class of Disqualified Stock will
not be deemed to be an incurrence of Indebtedness or an issuance of
Disqualified Stock for purposes of this Section 4.09; provided, in each such case, that the
amount thereof is included in Fixed Charges of the Company as accrued.  Notwithstanding any other provision of this
Section 4.09, the maximum amount of Indebtedness that the Company or any
Restricted Subsidiary may incur pursuant to this Section 4.09 shall not be
deemed to be exceeded solely as a result of fluctuations in exchange rates or
currency values.


 


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


 


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


 


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


 


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


 


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


 


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


 


Section 4.10           Asset Sales.


 


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


 


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


 


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


 


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


 


45

















 


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


 


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


 


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


 


(1)           to repay, prepay or purchase
Indebtedness and other Obligations under a Credit Facility and, if the
Indebtedness repaid is revolving credit Indebtedness to correspondingly reduce
commitments with respect thereto;


 


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


 


(3)                                  to
make a capital expenditure;


 


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


 


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


 


In the case of clauses (2) and (4) above, the Company
will be deemed to have complied with its obligations in the preceding paragraph
if it enters into a binding commitment to acquire such assets or Capital Stock
prior to 360 days after the receipt of the applicable Net Proceeds; provided that such binding commitment will
be subject only to customary conditions and such acquisition is completed
within 180 days following the expiration of the aforementioned 360 day
period.  If the acquisition contemplated
by such binding commitment is not consummated on or before such 180th
day, and the Company has not applied the applicable Net Proceeds for another
purpose permitted by the preceding paragraph on or before such 180th
day, such commitment shall be deemed not have been a permitted application of
Net Proceeds.  Pending the final
application of any Net Proceeds, the Company may temporarily reduce revolving
credit borrowings or otherwise invest the Net Proceeds in any manner that is
not prohibited by this Indenture.


 


Any Net Proceeds from Asset Sales that are not applied
or invested as provided in the second paragraph of this Section 4.10 will
constitute “Excess Proceeds.”  When the aggregate amount of Excess Proceeds
exceeds $10.0 million, within 30 days thereof, the Company will make an Asset
Sale Offer to all Holders of Notes and all Holders of other Indebtedness that
is pari passu with the Notes
containing provisions similar to those set forth in this Indenture with respect
to offers to purchase or redeem with the proceeds of sales of assets to
purchase the maximum principal amount of Notes and such other pari passu Indebtedness that may be
purchased out of the Excess Proceeds. 
The offer price in any Asset Sale Offer will be equal to 100% of the
principal amount plus accrued and unpaid interest to the date of purchase and
will be payable in cash.  If any Excess
Proceeds remain after consummation of an Asset Sale Offer, the


 


46

















 


Company may use
those Excess Proceeds for any purpose not otherwise prohibited by this
Indenture. If the aggregate principal amount of Notes and other pari passu Indebtedness tendered into such
Asset Sale Offer exceeds the amount of Excess Proceeds, the Trustee will select
the Notes and such other pari passu
Indebtedness to be purchased on a pro rata
basis.  Upon completion of each Asset
Sale Offer, the amount of Excess Proceeds will be reset at zero.


 


Any Asset Sale Offer will be made in compliance with
all applicable laws, rules and regulations, including, if applicable,
Regulation 14E under the Exchange Act and the rules thereunder and all other
applicable Federal and state securities laws. 
To the extent that the provisions of any securities laws or regulations
conflict with the provisions of this Section 4.10, the Company’s compliance
with those laws and regulations will not in and of itself cause a breach of its
obligations under this Section 4.10.


 


Section 4.11           Transactions
with Affiliates.


 


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


 


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


 


(2) The
Company delivers to the Trustee:


 


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


 


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


 


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


 


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


 


47

















 


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


 


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


 


(4) fees
and compensation paid to officers and employees of the Company or any
Restricted Subsidiaries, to the extent such fees and compensation are
reasonable and customary, and payment of reasonable directors’ fees to Persons
who are not otherwise Affiliates of the Company;


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


(12) any
service, purchase, lease, supply or similar agreement entered into in the
ordinary course of business between the Company or any Restricted Subsidiary
and any Affiliate that is a customer, client, supplier or purchaser or seller
of goods or services, so long as the senior management or Board of Directors of
the Company determines in good faith that any such agreement is on terms no
less favorable to the Company or such Restricted Subsidiary than those that
could be obtained in a comparable arms’-length transaction with an entity that
is not an Affiliate; and


 


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


 


48

















 


Section 4.12           Liens.


 


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


 


Section 4.13           Business
Activities.


 


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


 


Section 4.14           Corporate
Existence.


 


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


 


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


 


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


 


Section 4.15           Offer to
Repurchase Upon Change of Control.


 


(a) 
If a Change of Control occurs, each Holder of Notes will have the right
to require the Company to repurchase all or any part (equal to $1,000 or an
integral multiple of $1,000) of that Holder’s Notes pursuant to a Change of
Control Offer on the terms set forth herein. 
In the Change of Control Offer (subject to the conditions required by
applicable law, if any), the Company will offer a Change of Control Payment in
cash equal to 101% of the aggregate principal amount of Notes repurchased plus
accrued and unpaid interest on the Notes repurchased to the date of purchase,
subject to the rights of Holders of Notes on the relevant record date to
receive interest due on the relevant interest payment date (the “Change of Control Payment”).  No earlier than ten days and no later than
20 days following any Change of Control, the Company will mail a notice to each
Holder describing the transaction or transactions that constitute the Change of
Control and stating:


 


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


 


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


 


49

















 


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


 


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


 


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


 


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


 


(7) that Holders whose Notes are being purchased
only in part will be issued new Notes equal in principal amount to the
unpurchased portion of the Notes surrendered, which unpurchased portion must be
equal to $1,000 in principal amount or an integral multiple thereof.


 


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


 


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


 


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


 


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


 


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


 


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


 


Notwithstanding anything to the contrary in this
Section 4.15, the Company will not be required to make a Change of Control
Offer upon a Change of Control if (1) a third party makes the Change of


 


50

















 


Control Offer in
the manner, at the times and otherwise in compliance with the requirements set
forth in Section 4.15 and Section 3.09 hereof and purchases all Notes properly
tendered and not withdrawn under the Change of Control Offer, or (2) notice of
redemption has been given pursuant to Section 3.07 hereof, unless and until
there is a default in payment of the applicable redemption price.


 


Section 4.16           No Amendment
to Subordination Provisions.


 


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


 


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


 


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


 


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


 


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


 


Section 4.17           Limitation
on Sale and Leaseback Transactions.


 


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


 


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


 


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


 


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


 


Section 4.18           Payments for
Consent.


 


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


 


51

















 


Section 4.19           Additional
Note Guarantees.


 


If the Company or any of its Restricted Subsidiaries
acquires or creates another Domestic Subsidiary after the date of this
Indenture, then that newly acquired or created Domestic Subsidiary will become
a Guarantor and execute a supplemental indenture and deliver an Opinion of
Counsel (subject to customary assumptions and exceptions) satisfactory to the
Trustee within 10 Business Days of the date on which it was acquired or
created; provided that any
Domestic Subsidiary that constitutes an Immaterial Subsidiary need not become a
Guarantor until such time as it ceases to be an Immaterial Subsidiary.  The form of such Note Guarantee is attached
as Exhibit E hereto.


 


Section 4.20           Designation
of Restricted and Unrestricted Subsidiaries.


 


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


 


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


 


ARTICLE 5

SUCCESSORS


 


Section 5.01           Merger,
Consolidation, or Sale of Assets.


 


The Company shall not, directly or indirectly: (1)
consolidate or merge with or into another Person (whether or not the Company is
the surviving entity); or (2) sell, assign, transfer, convey or otherwise
dispose of all or substantially all of the properties or assets (such amounts
to be computed on a consolidated basis) of the Company and its Restricted
Subsidiaries taken as a whole, in one or more related transactions, to another
Person, unless:


 


52

















 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


This Section 5.01 will not apply to:


 


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


 


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


 


Section 5.02           Successor
Corporation Substituted.


 


Upon any consolidation or merger, or any sale,
assignment, transfer, lease, conveyance or other disposition of all or
substantially all of the properties or assets of the Company in a transaction
that is subject to, and that complies with the provisions of, Section 5.01
hereof, the successor Person formed by such consolidation or into or with which
the Company is merged or to which such sale, assignment, transfer, lease,
conveyance or other disposition is made shall succeed to, and be substituted
for (so that from and after the date of such consolidation, merger, sale,
assignment, transfer, lease, conveyance or


 


53

















 


other disposition,
the provisions of this Indenture referring to the “Company” shall refer instead
to the successor Person and not to the Company), and may exercise every right
and power of the Company under this Indenture with the same effect as if such
successor Person had been named as the Company herein; provided, however, that the
predecessor Company shall not be relieved from the obligation to pay the
principal of and interest on the Notes except in the case of a sale of all of
the Company’s assets in a transaction that is subject to, and that complies
with the provisions of, Section 5.01 hereof.


 


ARTICLE 6

DEFAULTS AND REMEDIES


 


Section 6.01           Events of
Default.


 


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


 


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


 


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


 


(3) failure
by the Company or any of its Restricted Subsidiaries to comply with the
provisions of Sections 4.07, 4.09 or 5.01 hereof;


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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(8)
except as permitted by this Indenture, any Note Guarantee is held in any
judicial proceeding to be unenforceable or invalid or ceases for any reason to
be in full force and effect, or any Guarantor, or any Person acting on behalf
of any Guarantor, denies or disaffirms its obligations under its Note
Guarantee;


 


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


 


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


 


(A)  commences a voluntary case,


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


Section 6.02           Acceleration.


 


In the case of an Event of Default specified in clause
(8) or (9) of Section 6.01 hereof, with respect to the Company, any Restricted
Subsidiary of the Company that is a Significant Subsidiary or any


 


55

















 


group of
Restricted Subsidiaries of the Company that, taken together, would constitute a
Significant Subsidiary, all outstanding Notes will become due and payable
immediately without further action or notice. 
If any other Event of Default occurs and is continuing, the Trustee or
the Holders of at least 25% in aggregate principal amount of the then
outstanding Notes may declare all the Notes to be due and payable immediately.


 


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


 


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


 


If an Event of Default occurs on or after
                    ,
2008 by reason of any willful action (or inaction) taken (or not taken) by or
on behalf of the Company with the intention of avoiding payment of the premium
that the Company would have had to pay if the Company then had elected to
redeem the Notes pursuant to Section 3.07 hereof, then, upon acceleration of
the Notes, an equivalent premium shall also become and be immediately due and
payable, to the extent permitted by law, anything in this Indenture or in the
Notes to the contrary notwithstanding. If an Event of Default occurs prior to
                    ,
2008 by reason of any willful action (or inaction) taken (or not taken) by or
on behalf of the Company with the intention of avoiding the prohibition on
redemption of the Notes prior to such date, then, upon acceleration of the Notes,
an additional premium shall also become and be immediately due and payable, to
the extent permitted by law, in an amount, for each of the years beginning on
              
of the years set forth below, as set forth below (expressed as a percentage of the
principal amount of the Notes on the date of payment that would otherwise be
due but for the provisions of this sentence):


 


	
  Year

  	
   

  	
  Percentage

  	
   

  
	
  2008

  	
   

  	
   

  	
  %

  
	
  2009

  	
   

  	
   

  	
  %

  
	
  2010

  	
   

  	
   

  	
  %

  



 


Section 6.03           Other
Remedies.


 


If an Event of Default occurs and is continuing, the
Trustee may pursue any available remedy to collect the payment of principal,
premium and interest on the Notes or to enforce the performance of any
provision of the Notes or this Indenture.


 


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


 


Section 6.04           Waiver of
Past Defaults.


 


Holders of not less than a majority in aggregate
principal amount of the then outstanding Notes by notice to the Trustee may on
behalf of the Holders of all of the Notes waive an existing Default or Event of
Default and its consequences hereunder, except a continuing Default or Event of
Default in the payment of the principal of, premium or interest on, the Notes
(including in connection with an offer to purchase); provided, however, that the
Holders of a majority in aggregate principal amount of the then


 


56

















 


outstanding Notes
may rescind an acceleration and its consequences, including any related payment
default that resulted from such acceleration. 
Upon any such waiver, such Default shall cease to exist, and any Event
of Default arising therefrom shall be deemed to have been cured for every
purpose of this Indenture; but no such waiver shall extend to any subsequent or
other Default or impair any right consequent thereon.


 


Section 6.05           Control by
Majority.


 


Holders of a majority in aggregate principal amount of
the then outstanding Notes may direct the time, method and place of conducting
any proceeding for exercising any remedy available to the Trustee or exercising
any trust or power conferred on it. 
However, the Trustee may refuse to follow any direction that conflicts
with law or this Indenture that the Trustee determines in good faith may be
prejudicial to the rights of other Holders of Notes or that may involve the
Trustee in personal liability.


 


Section 6.06           Limitation
on Suits.


 


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


 


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


 


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


 


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


 


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


 


(5)
during such 60-day period, Holders of a majority in aggregate principal amount
of the then outstanding Notes do not give the Trustee a direction inconsistent
with such request.


 


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


 


Section 6.07           Rights of
Holders of Notes to Receive Payment.


 


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


 


Section 6.08           Collection
Suit by Trustee.


 


If an Event of Default specified in Section 6.01(1) or
(2) hereof occurs and is continuing, the Trustee is authorized to recover
judgment in its own name and as trustee of an express trust against the Company
for the whole amount of principal of, premium and interest remaining unpaid on,
the Notes and interest on overdue principal and, to the extent lawful, interest
and such further amount as shall be sufficient to cover the costs and expenses
of collection, including the reasonable compensation, expenses, disbursements
and advances of the Trustee, its agents and counsel.


 


57

















 


Section 6.09           Trustee May
File Proofs of Claim.


 


The Trustee is authorized to file such proofs of claim
and other papers or documents as may be necessary or advisable in order to have
the claims of the Trustee (including any claim for the reasonable compensation,
expenses, disbursements and advances of the Trustee, its agents and counsel)
and the Holders of the Notes allowed in any judicial proceedings relative to
the Company (or any other obligor upon the Notes), its creditors or its
property and shall be entitled and empowered to collect, receive and distribute
any money or other property payable or deliverable on any such claims and any
custodian in any such judicial proceeding is hereby authorized by each Holder
to make such payments to the Trustee, and in the event that the Trustee shall
consent to the making of such payments directly to the Holders, to pay to the
Trustee any amount due to it for the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel, and any
other amounts due the Trustee under Section 7.07 hereof.  To the extent that the payment of any such
compensation, expenses, disbursements and advances of the Trustee, its agents
and counsel, and any other amounts due the Trustee under Section 7.07 hereof
out of the estate in any such proceeding, shall be denied for any reason,
payment of the same shall be secured by a Lien on, and shall be paid out of,
any and all distributions, dividends, money, securities and other properties
that the Holders may be entitled to receive in such proceeding whether in
liquidation or under any plan of reorganization or arrangement or
otherwise.  Nothing herein contained
shall be deemed to authorize the Trustee to authorize or consent to or accept
or adopt on behalf of any Holder any plan of reorganization, arrangement,
adjustment or composition affecting the Notes or the rights of any Holder, or
to authorize the Trustee to vote in respect of the claim of any Holder in any
such proceeding.


 


Section 6.10           Priorities.


 


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


 


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


 


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


 


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


 


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


 


Section 6.11           Undertaking
for Costs.


 


In any suit for the enforcement of any right or remedy
under this Indenture or in any suit against the Trustee for any action taken or
omitted by it as a Trustee, a court in its discretion may require the filing by
any party litigant in the suit of an undertaking to pay the costs of the suit,
and the court in its discretion may assess reasonable costs, including
reasonable attorneys’ fees and expenses against any party litigant in the suit,
having due regard to the merits and good faith of the claims or defenses made
by the party litigant.  This Section
6.11 does not apply to a suit by the Trustee, a suit by a Holder of a Note
pursuant to Section 6.07 hereof, or a suit by Holders of more than 10% in
aggregate principal amount of the then outstanding Notes.


 


58

















 


 


ARTICLE 7

TRUSTEE


 


Section 7.01           Duties of
Trustee.


 


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


 


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


 


(1)
the duties of the Trustee will be determined solely by the express provisions
of this Indenture and the Trustee need perform only those duties that are
specifically set forth in this Indenture and no others, and no implied
covenants or obligations shall be read into this Indenture against the Trustee;
and


 


(2)
in the absence of bad faith on its part, the Trustee may conclusively rely, as
to the truth of the statements and the correctness of the opinions expressed
therein, upon certificates or opinions furnished to the Trustee and conforming
to the requirements of this Indenture. 
However, the Trustee will examine the certificates and opinions to determine
whether or not they conform to the requirements of this Indenture.


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


59

















 


Section 7.02           Rights of
Trustee.


 


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


 


(b)  Before the Trustee acts or refrains from
acting, it may require an Officers’ Certificate or an Opinion of Counsel or
both.  The Trustee will not be liable
for any action it takes or omits to take in good faith in reliance on such
Officers’ Certificate or Opinion of Counsel. 
The Trustee may consult with counsel and the written advice of such
counsel or any Opinion of Counsel will be full and complete authorization and
protection from liability in respect of any action taken, suffered or omitted
by it hereunder in good faith and in reliance thereon.


 


(c)  The Trustee may act through its attorneys
and agents and will not be responsible for the misconduct or negligence of any
agent appointed with due care.


 


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


 


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


 


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


 


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


 


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


 


(i)  the rights, privileges, protections,
immunities and benefits given to the Trustee, including, without limitation,
its right to be indemnified, are extended to, and shall be enforceable by, the
Trustee in each of its capacities hereunder, and each agent, custodian and
other Person employed to act hereunder.


 


Section 7.03           Individual
Rights of Trustee.


 


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


 


60

















 


Section 7.04           Trustee’s
Disclaimer.


 


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


 


Section 7.05           Notice of
Defaults.


 


If a Default or Event of
Default occurs and is continuing and if it is known to the Trustee, the Trustee
will mail to Holders of Notes a notice of the Default or Event of Default
within 90 days after it occurs.  Except
in the case of a Default or Event of Default in payment of principal of,
premium or interest on, any Note, the Trustee may withhold the notice if and so
long as a committee of its Responsible Officers in good faith determines that
withholding the notice is in the interests of the Holders of the Notes.


 


Section 7.06           Reports by
Trustee to Holders of the Notes.


 


(a)  Within 60 days after each May 15 beginning
with the May 15 following the date of this Indenture, and for so long as Notes
remain outstanding, the Trustee will mail to the Holders of the Notes a brief
report dated as of such reporting date that complies with TIA § 313(a)
(but if no event described in TIA § 313(a) has occurred within the twelve
months preceding the reporting date, no report need be transmitted).  The Trustee also will comply with TIA
§ 313(b)(2).  The Trustee will also
transmit by mail all reports as required by TIA § 313(c).


 


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


 


Section 7.07           Compensation
and Indemnity.


 


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


 


(b)  The Company and the Guarantors will
indemnify the Trustee against any and all losses, liabilities, claims, damages
or expenses incurred by it arising out of or in connection with the acceptance
or administration of its duties under this Indenture, including the costs and
expenses of enforcing this Indenture against the Company and the Guarantors
(including this Section 7.07) and defending itself against any claim
(whether asserted by the Company, the Guarantors, any Holder or any other
Person) or liability in connection with the exercise or performance of any of
its powers or duties hereunder, except to the extent any such loss, liability
or expense may be attributable to its negligence or bad faith.  The Trustee will notify the Company promptly
of any claim for which it may seek indemnity. 
Failure by the


 


61

















 


Trustee to so notify the Company will
not relieve the Company or any of the Guarantors of their obligations
hereunder.  The Company or such
Guarantor will defend the claim and the Trustee will cooperate in the
defense.  The Trustee may have separate
counsel and the Company will pay the reasonable fees and expenses of such
counsel.  Neither the Company nor any
Guarantor need pay for any settlement made without its consent, which consent
will not be unreasonably withheld.


 


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


 


(d)  To secure the Company’s and the Guarantors’
payment obligations in this Section 7.07, the Trustee will have a Lien
prior to the Notes on all money or property held or collected by the Trustee,
except that held in trust to pay principal and interest on particular Notes.  Such Lien will survive the satisfaction and
discharge of this Indenture.


 


(e)  When the Trustee incurs expenses or renders
services after an Event of Default specified in Section 6.01(8) or (9)
hereof occurs, the expenses and the compensation for the services (including
the fees and expenses of its agents and counsel) are intended to constitute
expenses of administration under any Bankruptcy Law.


 


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


 


Section 7.08           Replacement
of Trustee.


 


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


 


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


 


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


 


(2)
the Trustee is adjudged a bankrupt or an insolvent or an order for relief is
entered with respect to the Trustee under any Bankruptcy Law;


 


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


 


(4)
the Trustee becomes incapable of acting.


 


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


 


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


 


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


 


(f)  A successor Trustee will deliver a written
acceptance of its appointment to the retiring Trustee and to the Company.  Thereupon, the resignation or removal of the
retiring Trustee will become effective, and the successor Trustee will have all
the rights, powers and duties of the Trustee under this Indenture.  The successor Trustee will mail a notice of
its succession to Holders.  The retiring
Trustee will promptly transfer all property held by it as Trustee to the
successor Trustee; provided all sums owing to the Trustee
hereunder have been paid and subject to the Lien provided for in
Section 7.07 hereof. 
Notwithstanding replacement of the Trustee pursuant to this
Section 7.08, the Company’s obligations under Section 7.07 hereof
will continue for the benefit of the retiring Trustee.


 


Section 7.09           Successor
Trustee by Merger, etc.


 


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


 


Section 7.10           Eligibility;
Disqualification.


 


There will at all times
be a Trustee hereunder that is a corporation organized and doing business under
the laws of the United States of America or of any state thereof that is
authorized under such laws to exercise corporate trustee power, that is subject
to supervision or examination by federal or state authorities and that has a
combined capital and surplus of at least $100.0 million as set forth in its
most recent published annual report of condition.


 


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


 


Section 7.11           Preferential
Collection of Claims Against Company.


 


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


 


ARTICLE 8

LEGAL DEFEASANCE AND COVENANT DEFEASANCE


 


Section 8.01           Option to
Effect Legal Defeasance or Covenant Defeasance.


 


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


 


Section 8.02           Legal
Defeasance and Discharge.


 


Upon the Company’s
exercise under Section 8.01 hereof of the option applicable to this
Section 8.02, the Company and each of the Guarantors will, subject to the
satisfaction of the conditions set forth in Section 8.04 hereof, be deemed
to have been discharged from their obligations with respect to all outstanding
Notes (including the Note Guarantees) on the date the conditions set forth
below are satisfied


 


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


 


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


 


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


 


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


 


(4)
this Article 8.


 


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


 


Section 8.03           Covenant
Defeasance.


 


Upon the Company’s
exercise under Section 8.01 hereof of the option applicable to this
Section 8.03, the Company and each of the Guarantors will, subject to the
satisfaction of the conditions set forth in Section 8.04 hereof, be
released from each of their obligations under the covenants contained in
Sections 4.07, 4.08, 4.09, 4.10, 4.11, 4.12, 4.13, 4.15, 4.16, 4.17, 4.18, 4.19
and 4.20 hereof and clause (4) of Section 5.01 hereof with respect to the
outstanding Notes on and after the date the conditions set forth in
Section 8.04 hereof are satisfied (hereinafter, “Covenant Defeasance”), and
the Notes will thereafter be deemed not “outstanding” for the purposes of any
direction, waiver, consent or declaration or act of Holders (and the
consequences of any thereof) in connection with such covenants, but will
continue to be deemed “outstanding” for all other purposes hereunder (it being
understood that such Notes will not be deemed outstanding for accounting
purposes).  For this purpose, Covenant
Defeasance means that, with respect to the outstanding Notes and Note
Guarantees, the Company and the Guarantors may omit to comply with and will
have no liability in respect of any term, condition or limitation set forth in
any such covenant, whether directly or indirectly, by reason of any reference
elsewhere herein to any such covenant or by reason of any reference in any such
covenant to any other provision herein or in any other document and such
omission to comply will not constitute a Default or an Event of Default under
Section 6.01 hereof, but, except as specified above, the remainder of this
Indenture and such Notes and Note Guarantees will be unaffected thereby.  In addition, upon the Company’s exercise
under Section 8.01 hereof of the option applicable to this Section 8.03,
subject to the satisfaction of the conditions set forth in Section 8.04
hereof, Sections 6.01(3) through 6.01(6) hereof will not constitute Events of
Default.


 


Section 8.04           Conditions
to Legal or Covenant Defeasance.


 


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


 


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


 


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


 


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


 


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


 


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


 


(3)
in the case of an election under Section 8.03 hereof, the Company must
deliver to the Trustee an Opinion of Counsel confirming that the Holders of the
outstanding Notes will not recognize income, gain or loss for federal income
tax purposes as a result of such Covenant Defeasance and will be subject to
federal income tax on the same amounts, in the same manner and at the same
times as would have been the case if such Covenant Defeasance had not occurred;


 


(4)
no Default or Event of Default shall have occurred and be continuing on the
date of such deposit (other than a Default or Event of Default resulting from
the borrowing of funds to be applied to such deposit) and the deposit will not
result in a breach or violation of, or constitute a default under, any other
instrument to which the Company or any Guarantor is a party or by which the
Company or any Guarantor is bound;


 


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


 


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


 


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


 


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


 


Subject to
Section 8.06 hereof, all money and non-callable Government Securities
(including the proceeds thereof) deposited with the Trustee (or other
qualifying trustee, collectively for purposes of this Section 8.05, the “Trustee”) pursuant to Section 8.04
hereof in respect of the outstanding Notes will be held in trust and applied by
the Trustee, in accordance with the provisions of such Notes and this
Indenture, to the payment, either directly or through any Paying Agent
(including the Company acting as Paying Agent) as the Trustee may determine, to
the Holders of such Notes of all sums due and to become due thereon in respect
of principal, premium and interest, but such money need not be segregated from
other funds except to the extent required by law.


 


The Company will pay and
indemnify the Trustee against any tax, fee or other charge imposed on or
assessed against the cash or non-callable Government Securities deposited
pursuant to Section 8.04 hereof or the principal and interest received in
respect thereof other than any such tax, fee or other charge which by law is
for the account of the Holders of the outstanding Notes.


 


Notwithstanding anything
in this Article 8 to the contrary, the Trustee will deliver or pay to the
Company from time to time upon the request of the Company any money or
non-callable Government Securities held by it as provided in Section 8.04
hereof which, in the opinion of a nationally recognized firm of independent
public accountants expressed in a written certification thereof delivered to
the Trustee (which may be the opinion delivered under Section 8.04(1)
hereof), are in excess of the amount thereof that would then be required to be
deposited to effect an equivalent Legal Defeasance or Covenant Defeasance.


 


Section 8.06           Repayment to
Company.


 


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


 


Section 8.07           Reinstatement.


 


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


 


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ARTICLE 9

AMENDMENT, SUPPLEMENT AND WAIVER


 


Section 9.01           Without
Consent of Holders of Notes.


 


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


 


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


 


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


 


(3)
to provide for the assumption of the Company’s or a Guarantor’s obligations to
the Holders of the Notes and Note Guarantees by a successor to the Company or
such Guarantor] pursuant to Article 5 hereof;


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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Section 9.02           With Consent
of Holders of Notes.


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


(8)
amend the covenant described in Section 4.07 in any way that would permit
the Company to take any action described in clauses (1) or (2) of the first
paragraph of such covenant when it would not have otherwise been permitted to
take such action under the terms of such covenant as in effect on the date of
the indenture;


 


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


 


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


 


Section 9.03           Compliance
with Trust Indenture Act.


 


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


 


Section 9.04           Revocation
and Effect of Consents.


 


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


 


Section 9.05           Notation on
or Exchange of Notes.


 


The Trustee may place an
appropriate notation about an amendment, supplement or waiver on any Note
thereafter authenticated.  The Company
in exchange for all Notes may issue and the Trustee shall, upon receipt of an
Authentication Order, authenticate new Notes that reflect the amendment, supplement
or waiver.


 


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


 


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Section 9.06           Trustee to
Sign Amendments, etc.


 


The Trustee will sign any
amended or supplemental indenture authorized pursuant to this Article 9 if
the amendment or supplement does not adversely affect the rights, duties,
liabilities or immunities of the Trustee. 
The Company may not sign an amended or supplemental indenture until the
Board of Directors of the Company approves it. 
In executing any amended or supplemental indenture, the Trustee will be
entitled to receive and (subject to Section 7.01 hereof) will be fully
protected in relying upon, in addition to the documents required by
Section 12.04 hereof, an Officers’ Certificate and an Opinion of Counsel
stating that the execution of such amended or supplemental indenture is
authorized or permitted by this Indenture.


 


ARTICLE 10

NOTE GUARANTEES


 


Section 10.01         Guarantee.


 


(a)  Subject to this Article 10, each of the
Guarantors hereby, jointly and severally, unconditionally guarantees to each
Holder of a Note authenticated and delivered by the Trustee and to the Trustee
and its successors and assigns, irrespective of the validity and enforceability
of this Indenture, the Notes or the obligations of the Company hereunder or
thereunder, that:


 


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


 


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


 


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


 


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


 


(c)  If any Holder or the Trustee is required by
any court or otherwise to return to the Company, the Guarantors or any
custodian, trustee, liquidator or other similar official acting in relation to
either the Company or the Guarantors, any amount paid by either to the Trustee
or such Holder, this Note Guarantee, to the extent theretofore discharged, will
be reinstated in full force and effect.


 


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


 


Section 10.02         Limitation
on Guarantor Liability.


 


Each Guarantor, and by
its acceptance of Notes, each Holder, hereby confirms that it is the intention
of all such parties that the Note Guarantee of such Guarantor not constitute a
fraudulent transfer or conveyance for purposes of Bankruptcy Law, the Uniform
Fraudulent Conveyance Act, the Uniform Fraudulent Transfer Act or any similar
federal or state law to the extent applicable to any Note Guarantee.  To effectuate the foregoing intention, the
Trustee, the Holders and the Guarantors hereby irrevocably agree that the
obligations of such Guarantor will be limited to the maximum amount that will,
after giving effect to such maximum amount and all other contingent and fixed
liabilities of such Guarantor that are relevant under such laws, and after
giving effect to any collections from, rights to receive contribution from or
payments made by or on behalf of any other Guarantor in respect of the
obligations of such other Guarantor under this Article 10, result in the
obligations of such Guarantor under its Note Guarantee not constituting a
fraudulent transfer or conveyance.


 


Section 10.03         Execution
and Delivery of Note Guarantee.


 


To evidence its Note
Guarantee set forth in Section 10.01 hereof, each Guarantor hereby agrees
that a notation of such Note Guarantee substantially in the form attached as
Exhibit E hereto will be endorsed by an Officer of such Guarantor on each Note
authenticated and delivered by the Trustee and that this Indenture will be
executed on behalf of such Guarantor by one of its Officers.


 


Each Guarantor hereby
agrees that its Note Guarantee set forth in Section 10.01 hereof will
remain in full force and effect notwithstanding any failure to endorse on each
Note a notation of such Note Guarantee.


 


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


 


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


 


In the event that the
Company or any of its Restricted Subsidiaries creates or acquires any Domestic
Subsidiary after the date of this Indenture, if required by Section 4.24
hereof, the Company will cause such Domestic Subsidiary to comply with the
provisions of Section 4.24 hereof and this Article 10, to the extent
applicable.


 


71

















 


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


 


Except as otherwise
provided in Section 10.05 hereof, no Guarantor may sell or otherwise
dispose of all or substantially all of its assets to, or consolidate with or
merge with or into (whether or not such Guarantor is the surviving Person)
another Person, other than the Company or another Guarantor, unless:


 


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


 


(2)
either:


 


(a)  subject to Section 10.05 hereof, the
Person acquiring the property in any such sale or disposition or the Person
formed by or surviving any such consolidation or merger unconditionally assumes
all the obligations of that Guarantor under this Indenture, its Note Guarantee
on the terms set forth herein or therein, pursuant to a supplemental indenture
in form and substance reasonably satisfactory to the Trustee; or


 


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


 


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


 


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


 


Section 10.05         Releases.


 


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


 


72

















 


Trustee will execute any documents
reasonably required in order to evidence the release of any Guarantor from its
obligations under its Note Guarantee.


 


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


 


(c)  Upon Legal Defeasance in accordance with
Article 8 hereof or satisfaction and discharge of this Indenture in
accordance with Article 11 hereof, each Guarantor will be released and
relieved of any obligations under its Note Guarantee.


 


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


 


Any Guarantor not
released from its obligations under its Note Guarantee as provided in this
Section 10.05 will remain liable for the full amount of principal of and
interest and premium on the Notes and for the other obligations of any
Guarantor under this Indenture as provided in this Article 10.


 


ARTICLE 11

SATISFACTION AND DISCHARGE


 


Section 11.01         Satisfaction
and Discharge.


 


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


 


(1)
either:


 


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


 


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


 


(2)
no Default or Event of Default has occurred and is continuing on the date of
such deposit (other than a Default or Event of Default resulting from the
borrowing of funds to be applied to such deposit) and the deposit will not
result in a breach or violation of, or constitute a default under, any other
material instrument to which the Company or any Guarantor is a party or by
which the Company or any Guarantor is bound;


 


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


 


73

















 


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


 


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


 


Notwithstanding the
satisfaction and discharge of this Indenture, if money has been deposited with
the Trustee pursuant to subclause (b) of clause (1) of this Section 11.01,
the provisions of Sections 11.02 and 8.06 hereof will survive.  In addition, nothing in this
Section 11.01 will be deemed to discharge those provisions of
Section 7.07 hereof, that, by their terms, survive the satisfaction and
discharge of this Indenture.


 


Section 11.02         Application
of Trust Money.


 


Subject to the provisions
of Section 8.06 hereof, all money deposited with the Trustee pursuant to
Section 11.01 hereof shall be held in trust and applied by it, in
accordance with the provisions of the Notes and this Indenture, to the payment,
either directly or through any Paying Agent (including the Company acting as
its own Paying Agent) as the Trustee may determine, to the Persons entitled
thereto, of the principal (and premium, if any) and interest for whose payment
such money has been deposited with the Trustee; but such money need not be
segregated from other funds except to the extent required by law.


 


If the Trustee or Paying
Agent is unable to apply any money or Government Securities in accordance with
Section 11.01 hereof by reason of any legal proceeding or by reason of any
order or judgment of any court or governmental authority enjoining, restraining
or otherwise prohibiting such application, the Company’s and any Guarantor’s
obligations under this Indenture and the Notes shall be revived and reinstated
as though no deposit had occurred pursuant to Section 11.01 hereof; provided
that if the Company has made any payment of principal of, premium, if any, or
interest on, any Notes because of the reinstatement of its obligations, the
Company shall be subrogated to the rights of the Holders of such Notes to
receive such payment from the money or Government Securities held by the
Trustee or Paying Agent.


 


ARTICLE 12

MISCELLANEOUS


 


Section 12.01         Trust
Indenture Act Controls.


 


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


 


Section 12.02         Notices.


 


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


 


74

















 


If to the Company and/or any Guarantor:


 


B&G Foods, Inc.

Four Gatehall Drive, Suite 110

Parsippany, NJ  07054

Facsimile No.:  (973) 401-6550

Attention:  Chief Financial Officer


 


With a copy to:

Dechert LLP

4000 Bell Atlantic Tower

1717 Arch Street

Philadelphia, PA  19103

Facsimile No.:  (215) 994-2222

Attention:  Christopher G. Karras, Esq.


 


If to the Trustee:

The Bank of New York

101 Barclay Street, Fl. 8W

New York, NY  10286

Facsimile No.:  (212) 815-5707

Attention:  Corporate Trust
Administration


 


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


 


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


 


Any notice or
communication to a Holder will be mailed by first class mail, certified or
registered, return receipt requested, or by overnight air courier guaranteeing
next day delivery to its address shown on the register kept by the
Registrar.  Any notice or communication
will also be so mailed to any Person described in TIA § 313(c), to the
extent required by the TIA.  Failure to
mail a notice or communication to a Holder or any defect in it will not affect
its sufficiency with respect to other Holders.


 


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


 


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


 


Section 12.03         Communication
by Holders of Notes with Other Holders of Notes.


 


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


 


75

















 


 


Section 12.04                          Certificate
and Opinion as to Conditions Precedent.


 


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


 


(1)
an Officers’ Certificate in form and substance reasonably satisfactory to the
Trustee (which must include the statements set forth in Section 12.05
hereof) stating that, in the opinion of the signers, all conditions precedent
and covenants, if any, provided for in this Indenture relating to the proposed
action have been satisfied; and


 


(2)
an Opinion of Counsel in form and substance reasonably satisfactory to the
Trustee (which must include the statements set forth in Section 12.05
hereof) stating that, in the opinion of such counsel, all such conditions
precedent and covenants have been satisfied.


 


Section 12.05                          Statements
Required in Certificate or Opinion.


 


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


 


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


 


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


 


(3)
a statement that, in the opinion of such Person, he or she has made such
examination or investigation as is necessary to enable him or her to express an
informed opinion as to whether or not such covenant or condition has been
satisfied; and


 


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


 


Section 12.06                          Rules by
Trustee and Agents.


 


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


 


Section 12.07                          No Personal
Liability of Directors, Officers, Employees and Stockholders.


 


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


 


76

















 


Section 12.08                          Governing
Law.


 


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


 


Section 12.09                          No Adverse
Interpretation of Other Agreements.


 


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


 


Section 12.10                          Successors.


 


All agreements of the
Company in this Indenture and the Notes will bind its successors.  All agreements of the Trustee in this
Indenture will bind its successors.  All
agreements of each Guarantor in this Indenture will bind its successors, except
as otherwise provided in Section 10.05 hereof.


 


Section 12.11                          Severability.


 


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


 


Section 12.12                          Counterpart
Originals.


 


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


 


Section 12.13                          Table of
Contents, Headings, etc.


 


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


 


Section 12.14                          Waiver of
Jury Trial.


 


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


 


[Signatures on following
page]


 


77

















 


SIGNATURES


 


	
  Dated as of
                 ,
  2004

  	
   

  	
   

  	
   

  
	
   

  	
  B&G FOODS
  HOLDINGS CORP.

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
   

  	
  Name:

  	
   

  
	
   

  	
   

  	
  Title:

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  BGH HOLDINGS,
  INC.

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
   

  	
  Name:

  	
   

  
	
   

  	
   

  	
  Title:

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  BLOCH &
  GUGGENHEIMER, INC.

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
   

  	
  Name:

  	
   

  
	
   

  	
   

  	
  Title:

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  HERITAGE
  ACQUISITION CORP.

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
   

  	
  Name:

  	
   

  
	
   

  	
   

  	
  Title:

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  MAPLE GROVE
  FARMS OF VERMONT, INC.

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
   

  	
  Name:

  	
   

  
	
   

  	
   

  	
  Title:

  	
   

  



 

















 


	
   

  	
  ORTEGA HOLDINGS
  INC.

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
   

  	
  Name:

  	
   

  
	
   

  	
   

  	
  Title:

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  POLANER, INC.

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
   

  	
  Name:

  	
   

  
	
   

  	
   

  	
  Title:

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  TRAPPEY’S FINE
  FOODS, INC.

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
   

  	
  Name:

  	
   

  
	
   

  	
   

  	
  Title:

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  WILLIAM
  UNDERWOOD COMPANY

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
   

  	
  Name:

  	
   

  
	
   

  	
   

  	
  Title:

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  THE BANK OF NEW
  YORK

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
   

  	
  Name:

  	
   

  
	
   

  	
   

  	
  Title:

  	
   

  



 

















 


[Face of Note]


 


CUSIP/CINS
                      


 


   %
Senior Notes due 2011


 


	
  No.
        

  	
   

  	
  $                    

  



 


B&G FOODS HOLDINGS
CORP.


 


promises to pay to
                                                                                                                                                                                        


or registered assigns, 


the principal sum of
                                                                                                                       
DOLLARS on
                       ,
20        .


 


Interest Payment
Dates: 
                         
and                          


 


Record Dates: 
                         
and                          


 


Dated: 
                             ,
2011


 


	
   

  	
  B&G FOODS
  HOLDINGS CORP.

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  



 


	
  This is one of
  the Notes referred to

  in the within-mentioned Indenture:

  	
   

  
	
   

  	
   

  
	
  THE BANK OF NEW YORK,

  as Trustee

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
  By:

  	
   

  	
   

  	
   

  
	
   

  	
    Authorized
  Signatory

  	
   

  	
   

  



 


A-1

















 


[Back of Note]


 


   %
Senior Notes due 2011


 


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


 


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


 


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


 


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


 


(3)
PAYING
AGENT AND REGISTRAR. 
Initially, The Bank of New York, the Trustee under the Indenture, will
act as Paying Agent and Registrar.  The
Company may change any Paying Agent or Registrar without notice to any
Holder.  The Company or any of its
Subsidiaries may act in any such capacity.


 


(4)
INDENTURE.  The Company issued the Notes under an
Indenture dated as of
                          ,
2004 (the “Indenture”) among the
Company, the Guarantors and the Trustee. 
The terms of the Notes include those stated in the Indenture and those
made part of the Indenture by reference to the TIA.  The Notes are subject to all such terms, and Holders are referred
to the Indenture and such Act for a statement of such terms.  To the extent any provision of this Note


 


A-2

















 


conflicts
with the express provisions of the Indenture, the provisions of the Indenture
shall govern and be controlling.  The
Notes are unsecured obligations of the Company.  The Indenture does not limit the aggregate principal amount of
Notes that may be issued thereunder.


 


(5)
OPTIONAL REDEMPTION.


 


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


 


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


 


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


 


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


 


(c)  On
or after
                       ,
2008, the Company may redeem all or a part of the Notes upon not less than 30
nor more than 60 days’ notice, at the redemption prices (expressed as
percentages of principal amount) set forth below plus accrued and unpaid
interest on the Notes redeemed, to the applicable redemption date, if redeemed
during the twelve-month period beginning on                        
of the years indicated below, subject to the rights of Holders of Notes on the
relevant record date to receive interest on the relevant interest payment date:


 




	
  Year

  	
   

  	
  Percentage

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  2008

  	
   

  	
   

  	
  %

  
	
  2009

  	
   

  	
   

  	
  %

  
	
  2010
  and thereafter

  	
   

  	
  100.000

  	
  %

  






 


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


 


(6)
MANDATORY
REDEMPTION.


 


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


 


(7)
REPURCHASE AT THE OPTION OF HOLDER.


 


(a)  If
there is a Change of Control, the Company will be required to make an offer (a
“Change of Control Offer”) to
each Holder to repurchase all or any part (equal to $1,000 or an integral
multiple thereof) of each Holder’s Notes at a purchase price in cash equal to
101% of the aggregate principal amount thereof plus accrued and unpaid interest
thereon to the date of purchase, subject to the rights of Holders on the
relevant record date to receive interest due on the


 


A-3

















 


relevant
interest payment date (the “Change of
Control Payment”).  Within 10
days following any Change of Control, the Company will mail a notice to each
Holder setting forth the procedures governing the Change of Control Offer as
required by the Indenture.


 


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


 


(8)
NOTICE OF
REDEMPTION.  Notice of
redemption will be mailed at least 30 days but not more than 60 days before the
redemption date to each Holder whose Notes are to be redeemed at its registered
address, except that redemption notices may be mailed more than 60 days prior
to a redemption date if the notice is issued in connection with a defeasance of
the Notes or a satisfaction or discharge of the Indenture.  Notes in denominations larger than $1,000
may be redeemed in part but only in whole multiples of $1,000, unless all of
the Notes held by a Holder are to be redeemed.


 


(9)
DENOMINATIONS,
TRANSFER, EXCHANGE.  The
Notes are in registered form without coupons in denominations of $1,000 and
integral multiples of $1,000.  The
transfer of Notes may be registered and Notes may be exchanged as provided in
the Indenture.  The Registrar and the
Trustee may require a Holder, among other things, to furnish appropriate
endorsements and transfer documents and the Company may require a Holder to pay
any taxes and fees required by law or permitted by the Indenture.  The Company need not exchange or register
the transfer of any Note or portion of a Note selected for redemption, except
for the unredeemed portion of any Note being redeemed in part.  Also, the Company need not exchange or
register the transfer of any Notes for a period of 15 days before a selection
of Notes to be redeemed or during the period between a record date and the
corresponding Interest Payment Date.


 


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


 


(11)
AMENDMENT,
SUPPLEMENT AND WAIVER. 
Subject to certain exceptions, the Indenture or the Notes or the Note
Guarantees may be amended or supplemented with the consent of the Holders of at
least a majority in aggregate principal amount of the then outstanding Notes
including Additional Notes, if any, voting as a single class, and any existing
Default or Event or


 


A-4

















 


Default
or compliance with any provision of the Indenture or the Notes or the Note
Guarantees may be waived with the consent of the Holders of a majority in
aggregate principal amount of the then outstanding Notes including Additional
Notes, if any, voting as a single class. 
Without the consent of any Holder of a Note, the Indenture or the Notes
or the Note Guarantees may be amended or supplemented to cure any ambiguity,
defect or inconsistency, to provide for uncertificated Notes in addition to or
in place of certificated Notes, to provide for the assumption of the Company’s
or a Guarantor’s obligations to Holders of the Notes and Note Guarantees in
case of a merger or consolidation, to make any change that would provide any
additional rights or benefits to the Holders of the Notes or that does not
adversely affect the legal rights under the Indenture of any such Holder, to
comply with the requirements of the SEC in order to effect or maintain the
qualification of the Indenture under the TIA, to conform the text of the
Indenture or the Notes to any provision of the “Description of Notes”
section of the Company’s prospectus dated
                   , 2004, relating to
the initial offering of the Notes, to the extent that such provision in that
“Description of Notes” was intended to be a verbatim recitation of a provision
of the Indenture, the Note Guarantees or the Notes; to provide for the issuance
of Additional Notes in accordance with the limitations set forth in the
Indenture, or to allow any Guarantor to execute a supplemental indenture to the
Indenture and/or a Note Guarantee with respect to the Notes.


 


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


 


A-5

















 


Company
is required to deliver to the Trustee annually a statement regarding compliance
with the Indenture, and the Company is required, upon becoming aware of any
Default or Event of Default, to deliver to the Trustee a statement specifying
such Default or Event of Default.


 


(13)
TRUSTEE
DEALINGS WITH COMPANY.  The
Trustee, in its individual or any other capacity, may make loans to, accept
deposits from, and perform services for the Company or its Affiliates, and may
otherwise deal with the Company or its Affiliates, as if it were not the
Trustee.


 


(14)
NO
RECOURSE AGAINST OTHERS.  No
past, present or future director, officer, employee, direct or indirect
incorporator, Affiliate, stockholder or controlling Person, of the Company or
any Guarantor, as such, or any successor entity, will have any liability for
any obligations of the Company or the Guarantors under the Notes, this
Indenture, the Note Guarantees or for any claim based on, in respect of, or by
reason of, such obligations or their creation. 
Each Holder of Notes by accepting a Note waives and releases all such
liability.  The waiver and release are
part of the consideration for issuance of the Notes.  The waiver may not be effective to waive liabilities under the
federal securities laws.


 


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


 


(16)
ABBREVIATIONS.  Customary abbreviations may be used in the name
of a Holder or an assignee, such as: 
TEN COM (= tenants in common), TEN ENT (= tenants by the entireties), JT
TEN (= joint tenants with right of survivorship and not as tenants in common),
CUST (= Custodian), and U/G/M/A (= Uniform Gifts to Minors Act).


 


(17)
CUSIP
NUMBERS.  Pursuant to a
recommendation promulgated by the Committee on Uniform Security Identification
Procedures, the Company has caused CUSIP numbers to be printed on the Notes,
and the Trustee may use CUSIP numbers in notices of redemption as a convenience
to Holders.  No representation is made
as to the accuracy of such numbers either as printed on the Notes or as
contained in any notice of redemption, and reliance may be placed only on the
other identification numbers placed thereon.


 


(18)
GOVERNING
LAW.  THE INTERNAL LAW OF THE STATE OF NEW
YORK WILL GOVERN AND BE USED TO CONSTRUE THE INDENTURE, THIS NOTE AND THE NOTE
GUARANTEES WITHOUT GIVING EFFECT TO APPLICABLE PRINCIPLES OF CONFLICTS OF LAW
TO THE EXTENT THAT THE APPLICATION OF THE LAWS OF ANOTHER JURISDICTION WOULD BE
REQUIRED THEREBY.


 


The Company will furnish
to any Holder upon written request and without charge a copy of the
Indenture.  Requests may be made to:


 


B&G Foods Holdings
Corp.


Four Gatehall Drive,
Suite 110


Parsippany, NJ  07054


Attention:  Chief Financial Officer


 


A-6

















 


ASSIGNMENT FORM


 


To assign this Note, fill
in the form below:


 


(I) or (we) assign and
transfer this Note to: 


(Insert assignee’s
legal name)


 


 


(Insert assignee’s
soc. sec. or tax I.D. no.)


 


 


 


(Print or type
assignee’s name, address and zip code)


 


and irrevocably appoint

to transfer this Note on the books of the Company.  The agent may substitute another to act for him.


 


	
  Date: 

  	
   

  	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  Your Signature:

  	
   

  
	
   

  	
  (Sign exactly as
  your name appears on the face of this Note)

  
	
   

  	
   

  
	
  Signature Guarantee*:

  	
   

  	
   

  
							



 












*                                         Participant
in a recognized Signature Guarantee Medallion Program (or other signature
guarantor acceptable to the Trustee).


 


A-7

















 


OPTION OF HOLDER TO ELECT
PURCHASE


 


If you want to elect to
have this Note purchased by the Company pursuant to Section 4.10 or 4.15
of the Indenture, check the appropriate box below:


 


Section 4.10                                                                                Section 4.15


 


If you want to elect to
have only part of the Note purchased by the Company pursuant to
Section 4.10 or Section 4.15 of the Indenture, state the amount you
elect to have purchased:


 


$               


 


	
  Date: 

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  Your Signature:

  	
   

  
	
   

  	
  (Sign exactly as
  your name appears on the face of this Note)

  
	
   

  	
   

  
	
   

  	
  Tax Identification No.:

  	
   

  
	
   

  	
   

  
	
  Signature Guarantee*:

  	
   

  	
   

  
								



 












*                                         Participant
in a recognized Signature Guarantee Medallion Program (or other signature
guarantor acceptable to the Trustee).


 


A-8

















 


SCHEDULE OF
EXCHANGES OF INTERESTS IN THE GLOBAL NOTE *


 


The following exchanges
of a part of this Global Note for an interest in another Global Note or for a
Definitive Note, or exchanges of a part of another Global Note or Definitive
Note for an interest in this Global Note, have been made:


 


	
  Date of Exchange

  	
   

  	
  Amount of
  decrease in

  Principal Amount

  at maturity of

  this Global Note

  	
   

  	
  Amount of
  increase in

  Principal Amount

  at maturity of

  this Global Note

  	
   

  	
  Principal
  Amount

  at maturity of this

  Global Note following

  such decrease

  (or increase)

  	
   

  	
  Signature
  of authorized

  officer of Trustee or

  Custodian

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  



 












*                                         This
schedule should be included only if the Note is issued in global form.


 


A-9

















 


EXHIBIT
B


 


FORM OF NOTATION OF
GUARANTEE


 


For value received, each
Guarantor (which term includes any successor Person under the Indenture) has,
jointly and severally, unconditionally guaranteed, to the extent set forth in
the Indenture and subject to the provisions in the Indenture dated as of
                  ,
2004 (the “Indenture”)
among B&G Foods Holdings Corp., (the “Company”), the Guarantors party thereto
and The Bank of New York, as trustee (the “Trustee”), (a) the due and punctual
payment of the principal of, premium and interest on, the Notes, whether at
maturity, by acceleration, redemption or otherwise, the due and punctual
payment of interest on overdue principal of and interest on the Notes, if any,
if lawful, and the due and punctual performance of all other obligations of the
Company to the Holders or the Trustee all in accordance with the terms of the
Indenture and (b) in case of any extension of time of payment or renewal of any
Notes or any of such other obligations, that the same will be promptly paid in
full when due or performed in accordance with the terms of the extension or
renewal, whether at stated maturity, by acceleration or otherwise.  The obligations of the Guarantors to the
Holders of Notes and to the Trustee pursuant to the Note Guarantee and the
Indenture are expressly set forth in Article 10 of the Indenture and
reference is hereby made to the Indenture for the precise terms of the Note
Guarantee.


 


Capitalized terms used
but not defined herein have the meanings given to them in the Indenture.


 


	
   

  	
  [NAME OF GUARANTOR(S)]

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  



 


B-1

















 


EXHIBIT C


 


FORM OF SUPPLEMENTAL
INDENTURE

TO BE DELIVERED BY SUBSEQUENT GUARANTORS


 


SUPPLEMENTAL INDENTURE
(this “Supplemental
Indenture”), dated as of
                       ,
200    , among
                               
(the “Guaranteeing
Subsidiary”), a subsidiary of B&G Foods Holdings Corp. (or its
permitted successor), a Delaware corporation (the “Company”), the Company, the
other Guarantors (as defined in the Indenture referred to herein) and The Bank
of New York, as trustee under the Indenture referred to below (the “Trustee”).


 


W I T N E S S E T H


 


WHEREAS, the Company has
heretofore executed and delivered to the Trustee an indenture (the “Indenture”),
dated as of
                    ,
2004 providing for the issuance of        %
Senior Notes due 2011 (the “Notes”);


 


WHEREAS, the Indenture
provides that under certain circumstances the Guaranteeing Subsidiary shall
execute and deliver to the Trustee a supplemental indenture pursuant to which
the Guaranteeing Subsidiary shall unconditionally guarantee all of the
Company’s Obligations under the Notes and the Indenture on the terms and
conditions set forth herein (the “Note Guarantee”); and


 


WHEREAS, pursuant to
Section 9.01 of the Indenture, the Trustee is authorized to execute and
deliver this Supplemental Indenture.


 


NOW, THEREFORE, in
consideration of the foregoing and for other good and valuable consideration,
the receipt of which is hereby acknowledged, the Guaranteeing Subsidiary and
the Trustee mutually covenant and agree for the equal and ratable benefit of
the Holders of the Notes as follows:


 


1.                                       CAPITALIZED
TERMS.  Capitalized terms used herein without
definition shall have the meanings assigned to them in the Indenture.


 


2.                                       AGREEMENT
TO GUARANTEE.  The Guaranteeing
Subsidiary hereby agrees to provide an unconditional Guarantee on the terms and
subject to the conditions set forth in the Note Guarantee and in the Indenture
including but not limited to Article 10 thereof.


 


4.                                       NO
RECOURSE AGAINST OTHERS.  No past,
present or future director, officer, employee, incorporator, stockholder or
agent of the Guaranteeing Subsidiary, as such, shall have any liability for any
obligations of the Company or any Guaranteeing Subsidiary under the Notes, any
Note Guarantees, the Indenture or this Supplemental Indenture or for any claim
based on, in respect of, or by reason of, such obligations or their creation.  Each Holder of the Notes by accepting a Note
waives and releases all such liability. 
The waiver and release are part of the consideration for issuance of the
Notes.  Such waiver may not be effective
to waive liabilities under the federal securities laws and it is the view of
the SEC that such a waiver is against public policy.


 


5.                                       NEW
YORK LAW TO GOVERN.  THE INTERNAL LAW OF
THE STATE OF NEW YORK SHALL GOVERN AND BE USED TO CONSTRUE THIS SUPPLEMENTAL
INDENTURE WITHOUT GIVING EFFECT TO APPLICABLE PRINCIPLES OF CONFLICTS OF LAW TO
THE EXTENT THAT THE APPLICATION OF THE LAWS OF ANOTHER JURISDICTION WOULD BE
REQUIRED THEREBY.


 


C-1

















 


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


 


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


 


8.                                       THE
TRUSTEE.  The Trustee shall not be
responsible in any manner whatsoever for or in respect of the validity or
sufficiency of this Supplemental Indenture or for or in respect of the recitals
contained herein, all of which recitals are made solely by the Guaranteeing
Subsidiary and the Company.


 


C-2

















 


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


 


Dated: 
                        ,
20   


 


	
   

  	
  [GUARANTEEING
  SUBSIDIARY]

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
   

  	
  Name:

  	
   

  
	
   

  	
   

  	
  Title:

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  B&G FOODS HOLDINGS
  CORP.

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
   

  	
  Name:

  	
   

  
	
   

  	
   

  	
  Title:

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  [EXISTING GUARANTORS]

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
   

  	
  Name:

  	
   

  
	
   

  	
   

  	
  Title:

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  THE
  BANK OF NEW YORK,

  as Trustee

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
   

  	
  Authorized Signatory

  	
   

  



 


C-3