Exhibit
4.8


 




 





 












 


B&G FOODS,
INC.


 


AND EACH OF THE
GUARANTORS PARTY HERETO


 


    %
SENIOR SUBORDINATED NOTES DUE 2016


 












 


FORM OF INDENTURE


 


Dated as of
October •, 2004


 












 


The Bank of New
York


 


Trustee


 












 




 





 

















 


CROSS-REFERENCE
TABLE*


 


	
  Trust Indenture

  Act Section

  	
   

  	
  Indenture Section

  
	
  310(a)(1)

  	
   

  	
  7.10

  
	
   

  	
  (a)(2)

  	
   

  	
  7.10

  
	
   

  	
  (a)(3)

  	
   

  	
  N.A.

  
	
   

  	
  (a)(4)

  	
   

  	
  N.A.

  
	
   

  	
  (a)(5)

  	
   

  	
  7.10

  
	
   

  	
  (b)

  	
   

  	
  7.10

  
	
   

  	
  (c)

  	
   

  	
  N.A.

  
	
  311(a)

  	
   

  	
  7.11

  
	
   

  	
  (b)

  	
   

  	
  7.11

  
	
   

  	
  (c)

  	
   

  	
  N.A.

  
	
  312(a)

  	
   

  	
  2.05

  
	
   

  	
  (b)

  	
   

  	
  12.03

  
	
   

  	
  (c)

  	
   

  	
  12.03

  
	
  313(a)

  	
   

  	
  7.06

  
	
   

  	
  (b)

  	
   

  	
  7.06; 7.07

  
	
   

  	
  (c)

  	
   

  	
  7.06; 12.02

  
	
   

  	
  (d)

  	
   

  	
  7.06

  
	
  314(a)

  	
   

  	
  4.03; 12.02; 12.05

  
	
   

  	
  (b)

  	
   

  	
  10.02

  
	
   

  	
  (c)(1)

  	
   

  	
  12.04

  
	
   

  	
  (c)(2)

  	
   

  	
  12.04

  
	
   

  	
  (c)(3)

  	
   

  	
  N.A.

  
	
   

  	
  (d)

  	
   

  	
  12.05

  
	
   

  	
  (e)

  	
   

  	
  N.A.

  
	
  315(a)

  	
   

  	
  7.01

  
	
   

  	
  (b)

  	
   

  	
  7.05; 12.02

  
	
   

  	
  (c)

  	
   

  	
  7.01

  
	
   

  	
  (d)

  	
   

  	
  7.01

  
	
   

  	
  (e)

  	
   

  	
  6.11

  
	
  316(a) (last sentence)

  	
   

  	
  2.09

  
	
   

  	
  (a)(1)(A)

  	
   

  	
  6.05

  
	
   

  	
  (a)(1)(B)

  	
   

  	
  6.04

  
	
   

  	
  (a)(2)

  	
   

  	
  N.A.

  



 












N.A. means not
applicable.


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


 


i

















 


TABLE OF CONTENTS


 


	
  ARTICLE 1

  
	
  DEFINITIONS AND
  INCORPORATION BY REFERENCE

  
	
   

  	
   

  	
   

  
	
  Section 1.01

  	
  Definitions.

  	
   

  
	
  Section 1.02

  	
  Other Definitions.

  	
   

  
	
  Section 1.03

  	
  Incorporation
  by Reference of Trust Indenture Act.

  	
   

  
	
  Section 1.04

  	
  Rules of Construction.

  	
   

  
	
   

  	
   

  	
   

  
	
  ARTICLE 2

  
	
  THE NOTES

  
	
   

  
	
  Section 2.01

  	
  Form and Dating.

  	
   

  
	
  Section 2.02

  	
  Execution and
  Authentication.

  	
   

  
	
  Section 2.03

  	
  Registrar and Paying Agent.

  	
   

  
	
  Section 2.04

  	
  Paying Agent to
  Hold Money in Trust.

  	
   

  
	
  Section 2.05

  	
  Holder Lists.

  	
   

  
	
  Section 2.06

  	
  Transfer and Exchange.

  	
   

  
	
  Section 2.07

  	
  Replacement Notes.

  	
   

  
	
  Section 2.08

  	
  Outstanding Notes.

  	
   

  
	
  Section 2.09

  	
  Treasury Notes.

  	
   

  
	
  Section 2.10

  	
  Temporary Notes.

  	
   

  
	
  Section 2.11

  	
  Cancellation.

  	
   

  
	
  Section 2.12

  	
  Defaulted Interest.

  	
   

  
	
  Section 2.13

  	
  Maturity.

  	
   

  
	
  Section 2.14

  	
  Tax Treatment.

  	
   

  
	
   

  	
   

  	
   

  
	
  ARTICLE 3

  
	
  REDEMPTION AND
  PREPAYMENT

  
	
   

  	
   

  	
   

  
	
  Section 3.01

  	
  Notices to Trustee.

  	
   

  
	
  Section 3.02

  	
  Selection
  of Notes to Be Redeemed or Purchased.

  	
   

  
	
  Section 3.03

  	
  Notice of Redemption.

  	
   

  
	
  Section 3.04

  	
  Effect of Notice of
  Redemption.

  	
   

  
	
  Section 3.05

  	
  Deposit of
  Redemption or Purchase Price.

  	
   

  
	
  Section 3.06

  	
  Notes Redeemed or
  Purchased in Part.

  	
   

  
	
  Section 3.07

  	
  Optional Redemption.

  	
   

  
	
  Section 3.08

  	
  Mandatory Redemption.

  	
   

  
	
  Section 3.09

  	
  Offer
  to Purchase by Application of Excess Proceeds.

  	
   

  



 


ii

















 


	
  ARTICLE 4

  
	
  COVENANTS

  
	
   

  	
   

  	
   

  
	
  Section 4.01

  	
  Payment of Notes.

  	
   

  
	
  Section 4.02

  	
  Maintenance of Office
  or Agency.

  	
   

  
	
  Section 4.03

  	
  Reports.

  	
   

  
	
  Section 4.04

  	
  Compliance Certificate.

  	
   

  
	
  Section 4.05

  	
  Taxes.

  	
   

  
	
  Section 4.06

  	
  Stay, Extension and Usury
  Laws.

  	
   

  
	
  Section 4.07

  	
  Restricted Payments.

  	
   

  
	
  Section 4.08

  	
  Dividend
  and Other Payment Restrictions Affecting Subsidiaries.

  	
   

  
	
  Section 4.09

  	
  Incurrence
  of Indebtedness and Issuance of Preferred Stock.

  	
   

  
	
  Section 4.10

  	
  Asset Sales.

  	
   

  
	
  Section 4.11

  	
  Transactions with
  Affiliates.

  	
   

  
	
  Section 4.12

  	
  Liens.

  	
   

  
	
  Section 4.13

  	
  Business Activities.

  	
   

  
	
  Section 4.14

  	
  Corporate Existence.

  	
   

  
	
  Section 4.15

  	
  Offer to
  Repurchase Upon Change of Control.

  	
   

  
	
  Section 4.16

  	
  Limitation
  on Sale and Leaseback Transactions.

  	
   

  
	
  Section 4.17

  	
  Payments for Consent.

  	
   

  
	
  Section 4.18

  	
  Additional Note Guarantees.

  	
   

  
	
  Section 4.19

  	
  Designation
  of Restricted and Unrestricted Subsidiaries.

  	
   

  
	
  Section 4.20

  	
  No Layering of Debt.

  	
   

  
	
  Section 4.21

  	
  Subsequent Issuances.

  	
   

  
	
  Section 4.22

  	
  Combination
  of Notes and Class A Common Stock.

  	
   

  
	
   

  	
   

  	
   

  
	
  ARTICLE 5

  
	
  SUCCESSORS

  
	
   

  	
   

  	
   

  
	
  Section 5.01

  	
  Merger,
  Consolidation, or Sale of Assets.

  	
   

  
	
  Section 5.02

  	
  Successor
  Corporation Substituted.

  	
   

  
	
   

  	
   

  	
   

  
	
  ARTICLE 6

  
	
  DEFAULTS AND
  REMEDIES

  
	
   

  	
   

  	
   

  
	
  Section 6.01

  	
  Events of Default.

  	
   

  
	
  Section 6.02

  	
  Acceleration.

  	
   

  
	
  Section 6.03

  	
  Other Remedies.

  	
   

  
	
  Section 6.04

  	
  Waiver of Past Defaults.

  	
   

  
	
  Section 6.05

  	
  Control by Majority.

  	
   

  
	
  Section 6.06

  	
  Limitation on Suits.

  	
   

  
	
  Section 6.07

  	
  Rights
  of Holders of Notes to Receive Payment.

  	
   

  
	
  Section 6.08

  	
  Collection Suit by Trustee.

  	
   

  
	
  Section 6.09

  	
  Trustee May File
  Proofs of Claim.

  	
   

  



 


iii

















 


	
  Section 6.10

  	
  Priorities.

  	
   

  
	
  Section 6.11

  	
  Undertaking for Costs.

  	
   

  
	
   

  	
   

  	
   

  
	
  ARTICLE 7

  
	
  TRUSTEE

  
	
   

  	
   

  	
   

  
	
  Section 7.01

  	
  Duties of Trustee.

  	
   

  
	
  Section 7.02

  	
  Rights of Trustee.

  	
   

  
	
  Section 7.03

  	
  Individual Rights of
  Trustee.

  	
   

  
	
  Section 7.04

  	
  Trustee’s Disclaimer.

  	
   

  
	
  Section 7.05

  	
  Notice of Defaults.

  	
   

  
	
  Section 7.06

  	
  Reports by
  Trustee to Holders of the Notes.

  	
   

  
	
  Section 7.07

  	
  Compensation and Indemnity.

  	
   

  
	
  Section 7.08

  	
  Replacement of Trustee.

  	
   

  
	
  Section 7.09

  	
  Successor Trustee by
  Merger, etc.

  	
   

  
	
  Section 7.10

  	
  Eligibility;
  Disqualification.

  	
   

  
	
  Section 7.11

  	
  Preferential
  Collection of Claims Against Company.

  	
   

  
	
   

  	
   

  	
   

  
	
  ARTICLE 8

  
	
  LEGAL DEFEASANCE AND
  COVENANT DEFEASANCE

  
	
   

  
	
  Section 8.01

  	
  Option
  to Effect Legal Defeasance or Covenant Defeasance.

  	
   

  
	
  Section 8.02

  	
  Legal Defeasance and
  Discharge.

  	
   

  
	
  Section 8.03

  	
  Covenant Defeasance.

  	
   

  
	
  Section 8.04

  	
  Conditions
  to Legal or Covenant Defeasance.

  	
   

  
	
  Section 8.05

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

  	
   

  
	
  Section 8.06

  	
  Repayment to Company.

  	
   

  
	
  Section 8.07

  	
  Reinstatement.

  	
   

  
	
   

  	
   

  	
   

  
	
  ARTICLE 9

  
	
  AMENDMENT,
  SUPPLEMENT AND WAIVER

  
	
   

  	
   

  	
   

  
	
  Section 9.01

  	
  Without Consent of
  Holders of Notes.

  	
   

  
	
  Section 9.02

  	
  With Consent of
  Holders of Notes.

  	
   

  
	
  Section 9.03

  	
  Compliance with
  Trust Indenture Act.

  	
   

  
	
  Section 9.04

  	
  Revocation and
  Effect of Consents.

  	
   

  
	
  Section 9.05

  	
  Notation on or
  Exchange of Notes.

  	
   

  
	
  Section 9.06

  	
  Trustee to Sign
  Amendments, etc.

  	
   

  
	
   

  	
   

  	
   

  
	
  ARTICLE 10

  
	
  SUBORDINATION

  
	
   

  	
   

  	
   

  
	
  Section 10.01

  	
  Agreement
  to Subordinate.

  	
   

  



 


iv

















 


	
  Section 10.02

  	
  Liquidation;
  Dissolution; Bankruptcy.

  	
   

  
	
  Section 10.03

  	
  Default on
  Designated Senior Indebtedness.

  	
   

  
	
  Section 10.04

  	
  Acceleration of Notes.

  	
   

  
	
  Section 10.05

  	
  When Distribution
  Must Be Paid Over.

  	
   

  
	
  Section 10.06

  	
  Notice by Company.

  	
   

  
	
  Section 10.07

  	
  Subrogation.

  	
   

  
	
  Section 10.08

  	
  Relative Rights.

  	
   

  
	
  Section 10.09

  	
  Subordination
  May Not Be Impaired by Company.

  	
   

  
	
  Section 10.10

  	
  Distribution
  or Notice to Representative.

  	
   

  
	
  Section 10.11

  	
  Rights of Trustee
  and Paying Agent.

  	
   

  
	
  Section 10.12

  	
  Authorization to
  Effect Subordination.

  	
   

  
	
  Section 10.13

  	
  Amendments.

  	
   

  
	
   

  	
   

  	
   

  
	
  ARTICLE 11

  
	
  NOTE GUARANTEES

  
	
   

  	
   

  	
   

  
	
  Section 11.01

  	
  Guarantee.

  	
   

  
	
  Section 11.02

  	
  Subordination
  of Note Guarantee.

  	
   

  
	
  Section 11.03

  	
  Limitation on
  Guarantor Liability.

  	
   

  
	
  Section 11.04

  	
  Execution and
  Delivery of Note Guarantee.

  	
   

  
	
  Section 11.05

  	
  Guarantors
  May Consolidate, etc., on Certain Terms.

  	
   

  
	
  Section 11.06

  	
  Releases.

  	
   

  
	
   

  	
   

  	
   

  
	
  ARTICLE 12

  
	
  SATISFACTION AND
  DISCHARGE

  
	
   

  	
   

  	
   

  
	
  Section 12.01

  	
  Satisfaction
  and Discharge.

  	
   

  
	
  Section 12.02

  	
  Application
  of Trust Money.

  	
   

  
	
   

  	
   

  	
   

  
	
  ARTICLE 13

  
	
  MISCELLANEOUS

  
	
   

  	
   

  	
   

  
	
  Section 13.01

  	
  Trust
  Indenture Act Controls.

  	
   

  
	
  Section 13.02

  	
  Notices.

  	
   

  
	
  Section 13.03

  	
  Communication
  by Holders of Notes with Other Holders of Notes.

  	
   

  
	
  Section 13.04

  	
  Certificate
  and Opinion as to Conditions Precedent.

  	
   

  
	
  Section 13.05

  	
  Statements
  Required in Certificate or Opinion.

  	
   

  
	
  Section 13.06

  	
  Rules
  by Trustee and Agents.

  	
   

  
	
  Section 13.07

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

  	
   

  
	
  Section 13.08

  	
  Governing Law.

  	
   

  
	
  Section 13.09

  	
  No
  Adverse Interpretation of Other Agreements.

  	
   

  
	
  Section 13.10

  	
  Successors.

  	
   

  
	
  Section 13.11

  	
  Severability.

  	
   

  



 


v

















 


	
  Section 13.12

  	
  Counterpart Originals.

  	
   

  
	
  Section 13.13

  	
  Table of Contents,
  Headings, etc.

  	
   

  
	
   

  	
   

  	
   

  
	
  EXHIBITS

  
	
   

  	
   

  	
   

  
	
  Exhibit A

  	
  FORM OF GLOBAL NOTE

  	
   

  
	
  Exhibit B

  	
  FORM OF
  SUPPLEMENTAL INDENTURE FOR GUARANTORS

  	
   

  



 


vi

















 


INDENTURE dated as of
October •, 2004 among B&G Foods, Inc., 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 Subordinated Notes due 2016 (the “Notes”):


 


ARTICLE 1

DEFINITIONS AND INCORPORATION

BY REFERENCE


 


Section 1.01                                Definitions.


 


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


 


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


 


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


 


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


 


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


 


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


 

















 


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


 


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


 


“Asset Sale” means


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


2

















 


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


 


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


 


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


 


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


 


“Board of Directors”
means:


 


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


 


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


 


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


 


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


 


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


 


(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


 


3

















 


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


 


in each case determined
in accordance with GAAP.


 


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


 


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


 


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


 


“Capital Stock”
means:


 


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


 


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


 


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


 


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


 


“Cash Equivalents”
means:


 


(1)                                  United
States dollars and Canadian dollars;


 


(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;


 


4

















 


(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


 


5

















 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


6

















 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


“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.


 


7

















 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


8

















 


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


 


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


 


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


 


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


 


“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


 


9

















 


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


 


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


 


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


 


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


 


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


 


“First Four Dividend Payments”
means the dividend payments contemplated to be made by the Company on
January 30, 2005 (or February 20, 2005 with respect to the Class B
Common Stock), 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 dividend payments in the aggregate shall not be greater than the levels
set forth in the prospectus relating to the Company’s Enhanced Income
Securities under the caption “Dividend Policy and Restrictions.”


 


“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


 


10

















 


calculated and on or
prior to the date on which the event for which the calculation of the Fixed
Charge Coverage Ratio is made (the “Calculation Date”), then the Fixed Charge
Coverage Ratio will be calculated giving pro forma effect to such incurrence,
assumption, Guarantee, repayment, repurchase, redemption, defeasance or other
discharge of Indebtedness, or such issuance, repurchase or redemption of
preferred stock, and the use of the proceeds therefrom, as if the same had
occurred at the beginning of the applicable four-quarter reference period.


 


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


 


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


 


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


 


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


 


11

















 


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 of this Indenture 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.


 


12

















 


“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(b) 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 and 2.06(b)
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:


 


13

















 


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


 


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


 


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


 


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


 


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


 


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


 


(1)                                  in
respect of borrowed money;


 


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


 


(3)                                  in
respect of banker’s acceptances;


 


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


 


(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;


 


14

















 


provided that if the holder of such
Indebtedness has no recourse to such Person other than to the asset, the amount
of such Indebtedness will be deemed to be equal to the lesser of the value of
such asset and the amount of the obligation so secured) and, to the extent not
otherwise included, the Guarantee by the specified Person of any Indebtedness
of any other Person.


 


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


 


 “Initial Notes” means the first $• 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 the Company such that, after giving effect to any such sale or
disposition, such Person is no longer a Subsidiary of the Company, the Company
will be deemed to have made an Investment on the date of any such sale or
disposition equal to the Fair Market Value of the Company’ Investments in such
Subsidiary that were not sold or disposed of in an amount determined as
provided in Section 4.07(d) hereof. 
The acquisition by the Company or any Subsidiary of the 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.


 


15

















 


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


 


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


 


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


 


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


 


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


 


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


 


(a)                                  any
Asset Sale; or


 


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


 


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


 


16

















 


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


 


“Non-Recourse Debt” means
Indebtedness:


 


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


 


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


 


(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.


 


 “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.


 


17

















 


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


 


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


 


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


 


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


 


“Participant”
means, with respect to the Depositary, a Person who has an account with the
Depositary.


 


“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;


 


18

















 


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


 


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


 


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


 


(7)                                  Investments
represented by Hedging Obligations;


 


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


 


(9)                                  repurchases
of the Notes;


 


(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 paragraph (b) of the second
clause (1) 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


 


19

















 


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


 


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


 


“Permitted Liens” means:


 


(1)                                  Liens
on assets of the Company or any of its Restricted Subsidiaries securing the
Credit Agreement 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,


 


20

















 


trade contracts,
government contracts, warranty requirements, leases or licenses or other
obligations of a like nature or incurred in the ordinary course of business
(including, without limitation, landlord Liens on leased real property and rights
of offset and set-off);


 


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


 


(7)                                  Liens
existing on the date hereof;


 


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


 


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


 


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


 


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


 


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


 


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


 


21

















 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


22

















 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


23

















 


“Related Party”
means


 


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


 


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


 


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


 


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


 


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


 


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


 


“SEC” means the
Securities and Exchange Commission.


 


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


 


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


 


“Senior Indebtedness”
with respect to the Company or any Guarantor means all Indebtedness of the
Company or such Guarantor, including interest thereon (including interest
accruing on or after the filing of any petition in bankruptcy or for
reorganization relating to the Company or any Subsidiary of the Company whether
or not a claim for post-filing interest is allowed in such proceeding) and
other amounts (including make-whole payments, fees, expenses and reimbursement
obligations under letters of credit and indemnities) owing in respect thereof,
whether outstanding on the date of this Indenture or thereafter incurred,
unless in the instrument creating or evidencing the same or pursuant to which
the same is outstanding it is provided that such obligations are not 


 


24

















 


superior in right of
payment to the notes or such Guarantor’s Note Guarantee, as applicable; provided,
however,
that Senior Indebtedness shall not include, as applicable, (i) any obligation
of the Company to any Subsidiary of the Company or of a Guarantor to the
Company or any Subsidiary of the Company, (ii) any liability for Federal,
state, local or other taxes owed or owing by the Company or such Guarantor,
(iii) any accounts payable or other liability to trade creditors arising in the
ordinary course of business (including guarantees thereof or instruments
evidencing such liabilities), (iv) any obligations with respect to any Capital
Stock, (v) any Indebtedness incurred in violation of the indenture, provided
that Indebtedness under Credit Facilities will not cease to be Senior
Indebtedness under this clause (v) if the lenders of such Indebtedness obtained
an Officer’s Certificate as of the date of incurrence of such Indebtedness to
the effect that such Indebtedness was permitted to be incurred by this
Indenture and (vi) any Indebtedness or Obligations of the Company or such
Guarantor which is pari passu Indebtedness.


 


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


 


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


 


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


 


“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.


 


“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 of this Indenture, 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


 


25

















 


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
October •, 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.


 


“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;


 


(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.


 


26

















 


“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

  
	
  “Automatic Exchange”

  	
   

  	
  4.21

  
	
  “Blockage Notice”

  	
   

  	
  10.03

  
	
  “Change of Control
  Offer”

  	
   

  	
  4.15

  
	
  “Change of Control
  Payment”

  	
   

  	
  4.15

  
	
  “Change of Control
  Payment Date”

  	
   

  	
  4.15

  
	
  “Covenant Defeasance”

  	
   

  	
  8.03

  
	
  “DTC”

  	
   

  	
  2.03

  
	
  “Event of Default”

  	
   

  	
  6.01

  
	
  “Excess Proceeds”

  	
   

  	
  4.10

  
	
  “Incremental Funds”

  	
   

  	
  4.07

  
	
  “incur”

  	
   

  	
  4.09

  
	
  “Legal Defeasance”

  	
   

  	
  8.02

  
	
  “Note Units”

  	
   

  	
  4.21

  
	
  “Offer Amount”

  	
   

  	
  3.09

  
	
  “Offer Period”

  	
   

  	
  3.09

  
	
  “pay the Notes”

  	
   

  	
  10.03

  
	
  “Paying Agent”

  	
   

  	
  2.03

  
	
  “Payment Blockage
  Period”

  	
   

  	
  10.03

  
	
  “Payment Default”

  	
   

  	
  6.01

  
	
  “Permitted Debt”

  	
   

  	
  4.09

  
	
  “Purchase Date”

  	
   

  	
  3.09

  
	
  “Registrar”

  	
   

  	
  2.03

  
	
  “Restricted Payments”

  	
   

  	
  4.07

  
	
  “Trustee”

  	
   

  	
  8.05

  



 


27

















 


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


 


28

















 


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


 


ARTICLE 2

THE NOTES


 


Section 2.01                                Form and
Dating.


 


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


 


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.


 


29

















 


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


 


The Trustee will, upon
receipt of a written order of the Company signed by at least one Officer (an “Authentication
Order”), authenticate (1) Initial Notes for original issue on the
date of issuance of the Initial Notes in an aggregate principal amount of $•,
and (2) subject to the terms of this Indenture, Additional Notes from time to
time for original issue in an amount specified by the Company.  The aggregate principal amount of Notes
outstanding at any time may not exceed the aggregate principal amount of Notes
authorized for issuance by the Company pursuant to one or more Authentication
Orders, except as provided in Section 2.07 hereof.


 


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


 


Section 2.03                                Registrar
and Paying Agent.


 


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


 


The Company initially
appoints The 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, if any, or


 


30

















 


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 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


 


31

















 


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).


 


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


 


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


 


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.”


 


(c)                                  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


 


32

















 


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.


 


(d)                                 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


 


33

















 


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.


 


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


 


34

















 


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.


 


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


 


35

















 


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.  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                                Maturity.


 


The Notes shall mature on
•, 2016.


 


Section 2.14                                Tax
Treatment.


 


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


 


36

















 


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 30 days but
not more than 60 days before a redemption date, an Officers’ Certificate
setting forth:


 


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


 


(2)                                  the
redemption date;


 


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


 


(4)                                  the
redemption price.


 


Section 3.02                                Selection of
Notes to Be Redeemed or Purchased.


 


If less than all of the
Notes are to be redeemed or purchased in an offer to purchase at any time, the
Trustee will select Notes for redemption or purchase on a pro rata basis, by lot or by
such other method as the Trustee shall deem fair and 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.  Provisions of this Indenture that apply to Notes called for
redemption or purchase also apply to portions of Notes called for redemption or
purchase.


 


37

















 


Section 3.03                                Notice of
Redemption.


 


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


 


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


 


(1)                                  the
redemption date;


 


(2)                                  the
redemption price;


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


38

















 


Section 3.04                                Effect of
Notice of Redemption.


 


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


 


Section 3.05                                Deposit of
Redemption or Purchase Price.


 


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


 


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


 


Section 3.06                                Notes
Redeemed or Purchased in Part.


 


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


 


Section 3.07                                Optional
Redemption.


 


(a)                                  At
any time and from time to time on and after •, 2009, the
Company may redeem all or a part of the Notes upon not less than 30 nor more
than 60 days notice, at the redemption prices (expressed as percentages of
principal amount) set forth below plus accrued and unpaid interest on the Notes
redeemed, to the applicable redemption date, if redeemed during the
twelve-month period beginning on • 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:


 


39

















 




	
  Year

  	
   

  	
  Percentage

  	
   

  
	
  2009

  	
   

  	
   

  	
  %

  
	
  2010

  	
   

  	
   

  	
  %

  
	
  2011

  	
   

  	
   

  	
  %

  
	
  2012 and thereafter

  	
   

  	
  100.000

  	
  %

  






 


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


 


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


 


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


 


Section 3.08                                Mandatory
Redemption.


 


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


 


Section 3.09                                Offer to
Purchase by Application of Excess Proceeds.


 


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


 


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


 


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.


 


40

















 


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 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;


 


(6)                                  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;


 


(7)                                  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, by lot or by such other method as the Trustee shall deem
fair and appropriate, based on the principal amount of Notes and such other pari passu
Indebtedness surrendered; and


 


(8)                                  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).


 


41

















 


On or before the Purchase
Date, the Company will, to the extent lawful, accept for payment, on a pro rata
basis, by lot or by such other method as the Trustee shall deem fair and
appropriate, 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.


 


42

















 


Section 4.02                                Maintenance
of Office or Agency.


 


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


 


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


 


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


 


Section 4.03                                Reports.


 


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


 


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


 


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


 


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


 


43

















 


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


 


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


 


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


 


In addition, the Company
and the Guarantors agree that, for so long as any Notes remain outstanding, if
at any time they are not required to file the reports required by the preceding
Section 4.03(a), they will furnish to the holders of Notes 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.


 


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


 


44

















 


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 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.


 


45

















 


Section 4.07                                Restricted
Payments.


 


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


 


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


 


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


 


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


 


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


 


(1)                                  if
the Fixed Charge Coverage Ratio for the Company’s four most recent fiscal
quarters for which internal financial statements are available is not less than
1.6 to 1.0, such Restricted Payment, together with the aggregate amount of all
other Restricted Payments made by the Company and its Restricted Subsidiaries
since the date of this Indenture (except for Restricted Payments made pursuant
to clause (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), (2), (5), (9), (11), (12) or (13) of paragraph
4.07(b) 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 of this Indenture
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


 


46

















 


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


 


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


 


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


 


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


 


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


 


(2)                                  if
the Fixed Charge Coverage Ratio for the Company’s four most recent fiscal
quarters for which internal financial statements are available is less than 1.6
to 1.0, such Restricted Payment, together with the aggregate amount of all
other Restricted Payments made by the Company and its Restricted


 


47

















 


Subsidiaries since the
beginning of the fiscal quarter in which such Restricted Payment is made (such
Restricted Payments for purposes of this clause (2) meaning only distributions
on the Company’s common stock), is less than the sum, without duplication, of:


 


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


 


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


 


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


 


(b)                                 The
preceding provisions will not prohibit:


 


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


 


(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 paragraph
(b) of the second clause (1) of Section 4.07(a);


 


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


 


(4)                                  so
long as no Default has occurred and is continuing or would be caused thereby,
the repurchase, redemption or other acquisition or retirement for value of any
Equity Interests of the Company or any Restricted Subsidiary of the Company
held by any current or former officer, director or employee of the Company or
any of its Restricted Subsidiaries pursuant to any equity subscription
agreement, stock option plan or any other management or employee benefit plan


 


48

















 


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 paragraph
(b) of the second clause (1) of Section 4.07(a) hereof and provided that
the Company may elect to apply all or any portion of the aggregate increase
contemplated by this proviso in any calendar year); provided, further, that
cancellation of Indebtedness owing to the Company from members of management of
the Company or any Restricted Subsidiary in connection with a repurchase of
Equity Interests of the Company will not be deemed to constitute a Restricted
Payment;


 


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


 


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


 


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


 


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


 


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


 


49

















 


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


 


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


 


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


 


(13)                            so
long as no Default has occurred and is continuing or would be caused thereby,
the repurchase of shares of the Company’s Class B Common Stock issued on or
before the date of this Indenture with the proceeds of an issuance of EISs or,
if no EISs are outstanding on the date of repurchase, the issuance of
Additional Notes and the Company’s Class A Common Stock, in either case
completed substantially contemporaneously with such repurchase, and, in respect
of any Additional Notes, incurred pursuant to paragraph (b)(19) of
section 4.09, 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 paragraph (b) of
the second clause (1) of Section 4.07(a).


 


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


 


(d)                                 For
purposes of this covenant, the amount of all Restricted Payments (other than
cash) will be the Fair Market Value on the date of the Restricted Payment of
the asset(s) or securities proposed to be transferred or issued by the Company
or such Restricted Subsidiary, as the case may be, pursuant to the Restricted
Payment.  The Fair Market Value of any
assets or securities that are required to be valued by this 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 this 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


 


50

















 


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


 


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


 


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


 


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


 


51

















 


Person, so acquired; provided
that, in the case of Indebtedness, such Indebtedness was permitted by the terms
of this Indenture to be incurred;


 


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


 


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


 


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


 


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


 


52

















 


may incur Indebtedness
(including Acquired Debt) or issue Disqualified Stock, and the Guarantors may
incur Indebtedness (including Acquired Debt) or issue preferred stock, if the
Fixed Charge Coverage Ratio for the Company’s most recently ended four full
fiscal quarters for which internal financial statements are available
immediately preceding the date on which such additional Indebtedness is
incurred or such Disqualified Stock or such preferred stock is issued, as the
case may be, would have been at least 2.0 to 1, determined on a pro forma basis
(including a pro forma application of the net proceeds therefrom), as if the
additional Indebtedness had been incurred or the Disqualified Stock or the
preferred stock had been issued, as the case may be, at the beginning of such
four-quarter period.


 


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


 


(1)                                  the
incurrence by the Company and any of its Restricted Subsidiaries of
Indebtedness and letters of credit under Credit Facilities in an aggregate
principal amount at any one time outstanding under this clause (1) (with
letters of credit being deemed to have a principal amount equal to the maximum
potential liability of the Company and its Restricted Subsidiaries thereunder)
not to exceed the greater of (x) $50.0 million and (y) the amount of the
Borrowing Base as of the date of such incurrence;


 


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


 


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


 


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


 


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


 


53

















 


(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:


 


(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;


 


54

















 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


(15)                            pledges,
deposits or payments made or given in the ordinary course of business in
connection with or to secure statutory, regulatory or similar


 


55

















 


obligations, including
obligations under health, safety or environmental obligations, or arising from
guarantees to suppliers, lessors, licenses, contractors, franchisees or
customers of obligations, other than Indebtedness, made in the ordinary course
of business;


 


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


 


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


 


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


 


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


 


56

















 


of such issuance solely
to repurchase shares of Class B Common Stock issued on or before the date of
this Indenture from holders thereof in accordance with the Securities Holders
Agreement.


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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Section 4.10                                Asset Sales.


 


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


 


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


 


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


 


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


 


(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 paragraph (b)
of this Section 4.10.


 


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


 


(1)                                  to
repay, prepay or purchase Senior Indebtedness or pari passu Indebtedness
(provided that if the Company shall so repay pari passu Indebtedness, it
will equally and ratably repay the Notes by making an offer (in accordance with
the procedures set forth in Section 3.09) to all Holders to


 


58

















 


purchase at a purchase
price equal to 100% of the principal amount thereof, plus accrued and unpaid
interest, if any, the pro rata principal amount of Notes); and, if the
Indebtedness repaid is revolving credit Indebtedness, to correspondingly reduce
commitments with respect thereto;


 


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


 


(3)                                  to
make a capital expenditure;


 


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


 


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


 


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


 


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


 


59

















 


Asset Sale Offer exceeds
the amount of Excess Proceeds, the Trustee will select the Notes to be
purchased on a pro rata basis or by such other method as the Trustee shall
deem fair and appropriate and in such manner as complies with the applicable
legal and stock exchange requirements. 
Upon completion of each Asset Sale Offer, the amount of Excess Proceeds
will be reset at zero.  In order for a
Holder of Notes whose Notes are represented by EISs to exercise its repurchase
right in connection with an Asset Sale Offer pursuant to this
Section 4.10, such Holder must voluntarily separate its EISs representing
such Notes.


 


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


 


Section 4.11                                Transactions
with Affiliates.


 


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


 


(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


 


60

















 


Subsidiary of such
Affiliate Transaction from a financial point of view or that such Affiliate
Transaction is not less favorable to the Company and its Restricted
Subsidiaries than could reasonably be expected to be obtained in a comparable
transaction with a Person that is not an Affiliate of the Company, as issued by
an accounting, appraisal or investment banking firm of national standing.


 


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


 


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


 


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


 


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


 


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


 


61

















 


(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.


 


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


 


62

















 


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


 


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


 


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


 


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


 


63

















 


(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.


 


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


 


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


 


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


 


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


 


64

















 


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


 


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


 


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


 


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


 


Section 4.16                                Limitation
on Sale and Leaseback Transactions.


 


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


 


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


 


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


 


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


 


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Section 4.17                                Payments for
Consent.


 


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


 


Section 4.18                                Additional
Note Guarantees.


 


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


 


Section 4.19                                Designation
of Restricted and Unrestricted Subsidiaries.


 


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


 


Any designation of a
Subsidiary of the Company as an Unrestricted Subsidiary will be evidenced to
the Trustee by filing with the Trustee a certified copy of a resolution of the
Board of Directors giving effect to such designation and an Officer’s
Certificate certifying that such designation complied with the preceding
conditions and was permitted by Section 4.07 hereof.  If, at any time, any Unrestricted Subsidiary
would fail to meet the preceding requirements as an Unrestricted Subsidiary, it
will thereafter cease to be an Unrestricted Subsidiary for purposes of this
Indenture and any Indebtedness of such Subsidiary will be deemed to be incurred
by a Restricted Subsidiary of the Company


 


66

















 


as of such date and, if
such Indebtedness is not permitted to be incurred as of such date under
Section 4.09 hereof, the Company will be in default of such covenant.  The Board of Directors of the Company may at
any time designate any Unrestricted Subsidiary to be a Restricted Subsidiary; provided that
such designation will be deemed to be an incurrence of Indebtedness by a
Restricted Subsidiary of the Company of any outstanding Indebtedness of such
Unrestricted Subsidiary and such designation will only be permitted if (1) such
Indebtedness is permitted under Section 4.09 hereof, calculated on a pro
forma basis as if such designation had occurred at the beginning of the
four-quarter reference period; and (2) no Default or Event of Default would be
in existence following such designation.


 


Section 4.20                                No Layering
of Debt.


 


The Company will not
incur, create, issue, assume, guarantee or otherwise become liable for any
Indebtedness that is contractually subordinate or junior in right of payment to
any Senior Indebtedness of the Company and senior in right of payment to the
Notes.  No Guarantor will incur, create,
issue, assume, guarantee or otherwise become liable for any Indebtedness that
is contractually subordinate or junior in right of payment to the Senior
Indebtedness of such Guarantor and senior in right of payment to such
Guarantor’s Note Guarantee.  No such
Indebtedness will be considered to be senior by virtue of being secured on a
first or junior priority basis.


 


Section 4.21                                Subsequent
Issuances.


 


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


 


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


 


The Company agrees, and
by purchasing the Notes each Holder and each owner of a beneficial interest in
a Global Note shall be deemed to have agreed, that, upon the


 


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issuance by the Company
of any Additional Notes, if the Company determines that such Additional Notes
should be assigned a different CUSIP number than the CUSIP number assigned to
the Initial Notes, then immediately following such issuance (and immediately
following any issuance of Additional Notes thereafter) a portion of each such
Holder’s or beneficial owner’s Initial Notes and/or Additional Notes, as
applicable, or beneficial ownership interest therein, will automatically,
without any action by such Holder or beneficial owner, be exchanged (each, an “Automatic
Exchange”) for a portion of each other Holder’s Initial Notes and/or
Additional Notes or each other beneficial owner’s beneficial interest in the Initial
Notes and/or Additional Notes, as applicable, such that each Holder and owner
of a beneficial interest in a Global Note will hold Notes or beneficial
interests in the Global Notes of each issuance in the same proportion as each
other Holder and owner of beneficial interests in the Global Notes.  The aggregate stated principal amount of
Notes owned by each Holder and owner of a beneficial interest in a Global Note
will not change as a result of the Automatic Exchange.  Immediately following the Automatic
Exchange, the Company and the Trustee will instruct the Depository to
facilitate the combination of the Notes issued prior to the date of issuance of
such Additional Notes and such Additional Notes into inseparable units (“Note Units”)
in accordance with the procedures of the Depository.  The Note Units will be assigned a new CUSIP number, and the
transfers and exchanges of beneficial interests in the Note Units will be
effected through the Depository.


 


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


 


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


 


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


 


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Section 4.22                                Combination
of Notes and Class A Common Stock.


 


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


 


ARTICLE 5

SUCCESSORS


 


Section 5.01                                Merger,
Consolidation, or Sale of Assets.


 


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


 


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


 


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


 


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


 


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(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
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


 


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assets in a transaction
that is subject to, and that complies with the provisions of, Section 5.01
hereof.


 


ARTICLE 6

DEFAULTS AND REMEDIES


 


Section 6.01                                Events of
Default.


 


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


 


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


 


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


 


(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


 


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Payment Default or the
maturity of which has been so accelerated, aggregates $10.0 million or more;


 


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


 


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


 


(A)                              commences
a voluntary case,


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


(C)                                orders
the liquidation of the Company or any of its Restricted Subsidiaries that is a
Significant Subsidiary or any group of


 


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Restricted Subsidiaries
of the Company that, taken together, would constitute a Significant Subsidiary;


 


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


 


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


 


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


 


Section 6.02                                Acceleration.


 


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


 


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


 


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


 


If an Event of Default
occurs on or after •, 2009 by reason of any willful
action (or inaction) taken (or not taken) by or on behalf of the Company with
the intention of avoiding payment of the premium that the Company would have
had to pay if the Company then had elected to redeem the Notes pursuant to
Section 3.07 hereof, then,


 


73

















 


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 •,
2009 by reason of any willful action (or inaction) taken (or not taken) by or
on behalf of the Company with the intention of avoiding the prohibition on
redemption of the Notes prior to such date, then, upon acceleration of the
Notes, an additional premium shall also become and be immediately due and
payable, to the extent permitted by law, in an amount, for each of the years
beginning on • 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

  	
   

  
	
  2009

  	
   

  	
  •

  	
  %

  
	
  2010

  	
   

  	
  •

  	
  %

  
	
  2011

  	
   

  	
  •

  	
  %

  
	
  2012
  and thereafter

  	
   

  	
  100.000

  	
  %

  






 


Section 6.03                                Other Remedies.


 


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


 


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


 


Section 6.04                                Waiver of
Past Defaults.


 


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


 


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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, except for any remedy with
respect to an Event of Default under the indenture, only if:


 


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


 


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


 


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


 


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


 


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


 


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


 


Section 6.07                                Rights of
Holders of Notes to Receive Payment.


 


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


 


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Section 6.08                                Collection
Suit by Trustee.


 


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


 


Section 6.09                                Trustee May
File Proofs of Claim.


 


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


 


Section 6.10                                Priorities.


 


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


 


First:  to the Trustee, its agents and attorneys for
amounts due under Section 7.07 hereof, including payment of all
compensation, expenses and


 


76

















 


liabilities incurred, and
all advances made, by the Trustee and the costs and expenses of collection;


 


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


 


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


 


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


 


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


 


Section 6.11                                Undertaking
for Costs.


 


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


 


ARTICLE 7

TRUSTEE


 


Section 7.01                                Duties of
Trustee.


 


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


 


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


 


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


 


77

















 


(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.


 


Section 7.02                                Rights of
Trustee.


 


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


 


(b)                                 Before
the Trustee acts or refrains from acting, 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


 


78

















 


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 against the losses, liabilities and expenses that might be incurred by
it in compliance with such request or direction.


 


Section 7.03                                Individual
Rights of Trustee.


 


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


 


Section 7.04                                Trustee’s
Disclaimer.


 


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


 


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Section 7.05                                Notice of
Defaults.


 


If a Default or Event of
Default occurs and is continuing and if it is known to the Trustee, the Trustee
will mail to Holders of Notes a notice of the Default or Event of Default
within 90 days after it occurs.  Except
in the case of a Default or Event of Default in payment of principal of,
premium, if any, or interest on, any Note or an Event of Default under
paragraph (10) of Section 6.01 hereof, the Trustee may withhold the notice
if and so long as a committee of its Responsible Officers in good faith
determines that withholding the notice is in the interests of the Holders of
the Notes.


 


Section 7.06                                Reports by
Trustee to Holders of the Notes.


 


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


 


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


 


Section 7.07                                Compensation
and Indemnity.


 


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


 


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


 


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


 


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


 


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


 


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


 


Section 7.08                                Replacement
of Trustee.


 


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


 


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


 


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


 


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


 


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


 


(4)                                  the
Trustee becomes incapable of acting.


 


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(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 any court of competent jurisdiction for the appointment of a successor
Trustee.


 


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


 


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


 


Section 7.09                                Successor
Trustee by Merger, etc.


 


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


 


Section 7.10                                Eligibility;
Disqualification.


 


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


 


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


 


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


 


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


 


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


 


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


 


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(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:


 


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


 


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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 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
material instrument to which the Company or any Guarantor is a party or by
which the Company or any Guarantor is bound and is not prohibited by
Article 10 or Section 11.02 of this Indenture;


 


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


 


(6)                                  the
Company must deliver to the Trustee an Officers’ Certificate stating that the
deposit was not made by the Company with the intent of preferring the Holders
of Notes over the other creditors of the Company with the intent of


 


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defeating, hindering,
delaying or defrauding any creditors of the Company or others; and


 


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


 


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


 


Subject to
Section 8.06 hereof, all money and non-callable Government Securities
(including the proceeds thereof) deposited with the Trustee (or other qualifying
trustee, collectively for purposes of this Section 8.05, the “Trustee”)
pursuant to Section 8.04 hereof in respect of the outstanding Notes will
be held in trust and applied by the Trustee, in accordance with the provisions
of such Notes and this Indenture, to the payment, either directly or through
any Paying Agent (including the Company acting as Paying Agent) as the Trustee
may determine, to the Holders of such Notes of all sums due and to become due
thereon in respect of principal, premium and, if any, interest, but such money
need not be segregated from other funds except to the extent required by
law.  [Money and securities so held in
trust are not subject to Article 10 or Section 11.02 of this Indenture.]


 


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, and, if any, interest on, any Note and
remaining unclaimed for two years after such principal, premium, if any, or
Liquidated Damages, if any, or interest has become due and payable shall be
paid to the Company on its request or (if then held by the Company) will be
discharged from such trust; and the Holder of such Note will thereafter be
permitted to look only to the


 


86

















 


Company for payment
thereof, and all liability of the Trustee or such Paying Agent with respect to
such trust money, and all liability of the Company as trustee thereof, will
thereupon cease; provided, however, that the Trustee or such Paying Agent,
before being required to make any such repayment, may at the expense of the
Company cause to be published once, in the New York Times and The Wall Street
Journal (national edition), notice that such money remains unclaimed and that,
after a date specified therein, which will not be less than 30 days from the
date of such notification or publication, any unclaimed balance of such money
then remaining will be repaid to the Company.


 


Section 8.07                                Reinstatement.


 


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


 


ARTICLE 9

AMENDMENT, SUPPLEMENT AND WAIVER


 


Section 9.01                                Without
Consent of Holders of Notes.


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


Section 9.02                                With Consent
of Holders of Notes.


 


Except as provided below
in this Section 9.02, the Company and the Trustee may amend. modify or
supplement this Indenture (including, without limitation, Section 3.09,


 


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


 


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


 


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


 


After an amendment,
supplement or waiver under this Section 9.02 becomes effective, the
Company will mail to the Holders of Notes affected thereby a notice briefly
describing the amendment, supplement or waiver.  Any failure of the Company to mail such notice, or any defect
therein, will not, however, in any way impair or affect the validity of any
such amended or supplemental indenture or waiver.  Subject to Sections 6.04 and 6.07 hereof, the Holders of a
majority in aggregate principal amount of the Notes then outstanding voting as
a single class may waive compliance in a particular instance by the Company
with any provision of this Indenture or the Notes or the Note Guarantees.  However, subject to Section 2.13,
without the consent of each Holder affected, an amendment, supplement or waiver
under this Section 9.02 may not (with respect to any Notes held by a non-consenting
Holder):


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


(8)                                  except
in connection with an offer by the Company to purchase all Notes, (i) waive an
Event of Default under clause (10) of Section 6.01 of this Indenture or
(ii) amend Section 4.07 in a manner that would permit the Company to take
any action described in the second clauses (1) and (2) of Section 4.07(a)
when the Company would not have otherwise been permitted to take such action
under the terms of such second clauses (1) and (2) of Section 4.07(a) as
in effect on the date of this 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;


 


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


 


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


 


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


 


Section 9.03                                Compliance
with Trust Indenture Act.


 


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


 


Section 9.04                                Revocation
and Effect of Consents.


 


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


 


Section 9.05                                Notation on
or Exchange of Notes.


 


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


 


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


 


Section 9.06                                Trustee to
Sign Amendments, etc.


 


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


 


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ARTICLE 10

SUBORDINATION


 


Section 10.01                          Agreement to
Subordinate.


 


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


 


Section 10.02                          Liquidation;
Dissolution; Bankruptcy.


 


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


 


Section 10.03                          Default on
Designated Senior Indebtedness.


 


The Company may not make
any payment or distribution to the Trustee or any Holder in respect of
Obligations with respect to the Notes or make any deposit pursuant to the
provisions of Article 8 of this Indenture and may not otherwise purchase,
redeem or otherwise retire any Notes (collectively, “pay the Notes”) if (i) a
default in the payment of the principal of, premium, if any, or interest on any
Designated Senior Indebtedness occurs and is continuing beyond any applicable
grace period or any other amount owing in respect of any Designated Senior
Indebtedness is not paid when due, or (ii) any other default on Designated
Senior Indebtedness occurs and the maturity of such Designated Senior
Indebtedness is accelerated in accordance with its terms unless, in either
case, (x) the default has been cured or waived and any such acceleration has
been rescinded or (y) such Designated Senior Indebtedness has been paid in full
(except that Holders may


 


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


 


During any period in
which payments are blocked pursuant to the preceding paragraph, Holders of the
Notes and the related Note Guarantees will be entitled to all remedies with
respect to the Notes and the Note Guarantees, however, any amount received by
Holders with respect to the Notes or the Note Guarantees, including as a result
of legal action to enforce the Notes of the Note Guarantees, would be required
to be turned over to Holders of Designated Senior Indebtedness.  Notwithstanding the provisions described in
the immediately preceding sentence (but subject to the provisions contained in
the first sentence of this Section 10.03 and in Section 10.02),
unless the holders of such Designated Senior Indebtedness or the Representative
of such holders shall have accelerated the maturity of such Designated Senior
Indebtedness, the Company may resume payments on the Notes after such Payment
Blockage Period, including any missed payments.  In no event shall the total number of days during which any
Payment Blockage Period is in effect extend beyond the 179 days from the date
of receipt by the Trustee of the relevant Blockage Notice, and in no event
shall the total number of days during which any Payment Blockage Period is in
effect exceed 179 days during any 360 consecutive day period.  For purposes of this provision, no default
or event of default that existed or was continuing on the date of commencement
of any Payment Blockage Period with respect to the Designated Senior
Indebtedness initiating such Payment Blockage Period shall be, or be made, the
basis of the commencement of a subsequent Payment


 


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Blockage Period by the
Representative of such Designated Senior Indebtedness, unless such default or
event of default shall have been cured or waived for a period of not less than
90 consecutive days.


 


Section 10.04                          Acceleration
of Notes.


 


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


 


Section 10.05                          When
Distribution Must Be Paid Over.


 


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


 


With respect to the
holders of Senior Indebtedness, the Trustee undertakes to perform only those
obligations on the part of the Trustee as are specifically set forth in this
Article 10, and no implied covenants or obligations with respect to the
holders of Senior Indebtedness will be read into this Indenture against the
Trustee.  The Trustee will not be deemed
to owe any fiduciary duty to the holders of Senior Indebtedness, and will not
be liable to any such holder if the Trustee pays over or distributes to or on
behalf of Holders or the Company or any other Person money or assets to which
any holders of Senior Indebtedness are then entitled by virtue of this Article 10,
except if such payment is made as a result of the willful misconduct or gross
negligence of the Trustee.


 


Section 10.06                          Notice by
Company.


 


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


 


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Section 10.07                          Subrogation.


 


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


 


Section 10.08                          Relative
Rights.


 


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


 


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


 


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


 


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


 


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


 


Section 10.09                          Subordination
May Not Be Impaired by Company.


 


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


 


Section 10.10                          Distribution
or Notice to Representative.


 


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


 


Upon any payment or
distribution of assets of the Company referred to in this Article 10, the
Trustee and the Holders of Notes will be entitled to rely upon any order or


 


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


 


Section 10.11                          Rights of
Trustee and Paying Agent.


 


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


 


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


 


Section 10.12                          Authorization
to Effect Subordination.


 


Each Holder of Notes, by
the Holder’s acceptance thereof, authorizes and directs the Trustee on such
Holder’s behalf to take such action as may be necessary or appropriate to
effectuate the subordination as provided in this Article 10, and appoints
the Trustee to act as such Holder’s attorney-in-fact for any and all such
purposes.  If the Trustee does not file
a proper proof of claim or proof of debt in the form required in any proceeding
referred to in Section 6.09 hereof at least 30 days before the expiration
of the time to file such claim, the Representatives are hereby authorized to
file an appropriate claim for and on behalf of the Holders of the Notes.


 


Section 10.13                          Amendments.


 


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


 


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ARTICLE 11

NOTE GUARANTEES


 


Section 11.01                          Guarantee.


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


Section 11.02                          Subordination
of Note Guarantee.


 


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


 


Section 11.03                          Limitation
on Guarantor Liability.


 


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


 


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Section 11.04                          Execution
and Delivery of Note Guarantee.


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


(2)                                  either:


 


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


 


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


 


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


 


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


 


Section 11.06                          Releases.


 


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


 


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


 


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


 


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


 


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


 


ARTICLE 12

SATISFACTION AND DISCHARGE


 


Section 12.01                          Satisfaction
and Discharge.


 


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


 


(1)                                  either:


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


Section 12.02                          Application
of Trust Money.


 


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


 


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


 


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


 


ARTICLE 13

MISCELLANEOUS


 


Section 13.01                          Trust
Indenture Act Controls.


 


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


 


Section 13.02                          Notices.


 


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


 


If to the Company and/or
any Guarantor:


 


B&G Foods, Inc.

Four Gatehall Drive, Suite 110

Parsippany, NJ  07054

Facsimile No.: 
(      )
      -        

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:

                                  

                                  

Facsimile No.: 
(      )
      -        

Attention:


 


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


 


103

















 


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


 


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


 


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


 


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


 


Section 13.03                          Communication
by Holders of Notes with Other Holders of Notes.


 


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


 


Section 13.04                          Certificate
and Opinion as to Conditions Precedent.


 


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


 


(1)                                  an
Officers’ Certificate in form and substance reasonably satisfactory to the
Trustee (which must include the statements set forth in Section 13.05
hereof) stating that, in the opinion of the signers, all conditions precedent
and covenants, if any, provided for in this Indenture relating to the proposed
action have been satisfied; and


 


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


 


104

















 


Section 13.05                          Statements
Required in Certificate or Opinion.


 


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


 


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


 


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


 


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


 


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


 


Section 13.06                          Rules by
Trustee and Agents.


 


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


 


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


 


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


 


Section 13.08                          Governing
Law.


 


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


 


105

















 


Section 13.09                          No Adverse
Interpretation of Other Agreements.


 


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


 


Section 13.10                          Successors.


 


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


 


Section 13.11                          Severability.


 


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


 


Section 13.12                          Counterpart
Originals.


 


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


 


Section 13.13                          Table of
Contents, Headings, etc.


 


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


 


[Signatures on
following page]


 


106

















 


SIGNATURES


 


	
  Dated as of 

  	
   

  	
  , 2004

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  B&G FOODS, INC.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  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:

  	
   

  



 


2

















 


EXHIBIT A


 


[Face of Note]


 


CUSIP/CINS               


 


    %
Senior Subordinated Notes due 2016


 


	
  No.     

  	
   

  	
  $               

  



 


B&G FOODS,
INC.


 


promises to pay to


or registered assigns,


the principal sum
of                                                                                                                                                       DOLLARS

on
                          ,
2016.


 


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


 


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


 


	
  Dated:

  	
   

  	
   , 200 

  



 


 


	
   

  	
  B&G FOODS, INC.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
   

  	
  Name:

  	
   

  
	
   

  	
   

  	
  Title:

  	
   

  



 


 


This is one of the Notes
referred to

in the within-mentioned Indenture:


 


	
  THE BANK OF NEW YORK,

  
	
  as Trustee

  



 


 


	
  By:

  	
   

  	
   

  
	
   

  	
  Authorized
  Signatory

  	
   

  



 


A-1

















 


[Back of Note]

    % Senior Subordinated Notes due 2016


 


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


 


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


 


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


 


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


 


A-2

















 


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


 


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


 


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


 


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


 


	
  Year

  	
   

  	
  Percentage

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  2009

  	
   

  	
   

  	
  %

  
	
  2010

  	
   

  	
   

  	
  %

  
	
  2011

  	
   

  	
   

  	
  %

  
	
  2012 and thereafter

  	
   

  	
  100.000

  	
  %

  



 


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


 


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


 


A-3

















 


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


 


(b)                                 If
the Company or a Restricted Subsidiary of the Company consummates any Asset
Sales, within five days of each date on which the aggregate amount of Excess
Proceeds exceeds $10.0 million, the Company will commence an offer to all
Holders of Notes and all holders of other pari passu Indebtedness containing
provisions similar to those set forth in the Indenture with respect to offers
to purchase or redeem with the proceeds of sales of assets (an “Asset Sale
Offer”) pursuant to Section 3.09 of the Indenture to purchase
the maximum principal amount of Notes (including any Additional Notes) and such
other pari
passu Indebtedness that may be purchased out of the Excess Proceeds
at an offer price in cash in an amount equal to 100% of the principal amount
thereof plus
accrued and unpaid interest thereon to the date of purchase in accordance with
the procedures set forth in the Indenture. 
To the extent that the aggregate amount of Notes (including any
Additional Notes) and other pari passu Indebtedness tendered pursuant
to an Asset Sale Offer is less than the Excess Proceeds, the Company (or such
Restricted Subsidiary) may use such deficiency for any purpose not otherwise
prohibited by the Indenture.  If the
aggregate principal amount of Notes and other pari passu Indebtedness
tendered into such Asset Sale Offer exceeds the amount of Excess Proceeds, the
Trustee shall select the Notes to be purchased on a pro rata basis, and such
other pari
passu Indebtedness to be purchased on a pro rata basis, by lot or by
such other method as the Trustee shall deem fair and appropriate and in such
manner as complies with the applicable legal and stock exchange
requirements.  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


 


A-4

















 


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.


 


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


 


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


 


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


 


A-5

















 


intended to be a verbatim
recitation of a provision of the Indenture, the Note Guarantees or the Notes,
to provide for or confirm the issuance of Additional Notes in accordance with
the limitations set forth in the Indenture to comply with the provisions of the
Depository or the Trustee with respect to the provisions of the Indenture and
the Notes relating to transfers and exchanges of Notes or beneficial interests
in the Notes, or to evidence the release of any Guarantor permitted to be
released under the terms of the Indenture or to allow any Guarantor to execute
a supplemental indenture and/or a Note Guarantee with respect to the Notes.


 


(12)                            DEFAULTS AND
REMEDIES.  Events of Default
include, as further articulated in the Indenture:  (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 [aggregating in excess of
$10.0 million] that remain [unpaid,] undischarged [or unstayed] for a period of
60 days [after their entry]; (viii) certain events of bankruptcy or insolvency
with respect to the Company or any of its Restricted Subsidiaries that is a
Significant Subsidiary or any group of Restricted Subsidiaries that, taken
together, would constitute a Significant Subsidiary; (ix) payment by the
Company of dividends on its common stock during the continuance of an Event of
Default or pursuant to the second clause (1) of paragraph (a) of
Section 4.07 of the Indenture at a time when such payment was not
permitted pursuant to such section and (x) except as permitted by the
Indenture, any Note Guarantee is held in any judicial proceeding to be unenforceable
or invalid or ceases for any reason to be in full force and effect, or any
Guarantor, or any Person acting on its behalf denies or disaffirms its
obligations under such Guarantor’s Note Guarantee.  If any Event of Default occurs and is continuing, the Trustee or
the Holders of at least 25% in aggregate principal amount of the then
outstanding Notes may declare all the Notes to be due and payable
immediately.  Notwithstanding the
foregoing, in the case of an Event of Default arising from certain events of
bankruptcy or insolvency, all outstanding Notes will become due and payable
immediately without further


 


A-6

















 


action or notice.  Holders may not enforce the Indenture or the
Notes except as provided in the Indenture. 
Subject to certain limitations, Holders of a majority in aggregate
principal amount of the then outstanding Notes may direct the Trustee in its
exercise of any trust or power.  The
Trustee may withhold from Holders of the Notes notice of any continuing Default
or Event of Default (except a Default or Event of Default relating to the
payment of principal or interest or premium, if any) if it determines that
withholding notice is in their interest. 
The Holders of a majority in aggregate principal amount of the then
outstanding Notes by written notice to the Trustee may, on behalf of the
Holders of all of the Notes, rescind an acceleration and its consequences or
waive any existing Default or Event of Default and its consequences under the Indenture
except a continuing Default or Event of Default in the payment of the principal
of, premium, if any, or interest on, the Notes, as further articulated in the
Indenture.  The Company is required to
deliver to the Trustee annually a statement regarding compliance with the
Indenture, and the Company is required, upon becoming aware of any Default or
Event of Default, to deliver to the Trustee a statement specifying such Default
or Event of Default.


 


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


 


(14)                            SUBSEQUENT
ISSUANCE.  The Company may
only issue Additional Notes in accordance with Section 4.21 of the
Indenture.


 


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


 


A-7

















 


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


 


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


 


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


 


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


 


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


 


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


 


(18)                            ABBREVIATIONS.  Customary abbreviations may be used in the
name of a Holder or an assignee, such as: 
TEN COM (= tenants in common), TEN ENT (= tenants by the entireties), JT
TEN (= joint tenants with right of


 


A-8

















 


survivorship and not as
tenants in common), CUST (= Custodian), and U/G/M/A (= Uniform Gifts to Minors
Act).


 


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


 


(20)                            TAX
TREATMENT.  By acceptance of
beneficial ownership interest in this Notes each beneficial Owner of  Notes will be deemed to have agreed, (1) to
treat itself as owner of the Notes for all purposes, including the preparation
and filing of any United States federal, state, local or foreign tax return,
report, or other information; (2) to treat the Notes as indebtedness for all
tax purposes and (3) to treat the acquisition of an EIS as the acquisition of
the Notes and Class A Common Stock which are represented by the EIS and to
allocate the purchase price of the EIS between the Notes and the Class A Common
Stock in the proportions as $                    
and $
                  respectively.


 


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


 


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


 


B&G Foods, Inc.


Four Gatehall Drive,
Suite 110


Parsippany, NJ  07054


Attention:  Chief Financial Officer


 


A-9

















 


ASSIGNMENT FORM


 


To assign this Note, fill
in the form below:


 


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

  	
   

  
	
   

  	
  (Insert
  assignee’s legal name)

  



 


 


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


 


 


 


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


 


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


 


 


	
  Date:

  	
   

  	
   

  	
   

  
	
   

  
	
   

  	
  Your Signature:

  	
   

  
	
   

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

  
	
   

  
	
  Signature Guarantee*:

  	
   

  	
   

  
							



 












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


 


A-10

















 


OPTION OF HOLDER
TO ELECT PURCHASE


 


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


 


	
  Section 4.10                                Section 4.15

  



 


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


 


$             


 


	
  Date:

  	
   

  	
   

  	
   

  
	
   

  
	
   

  	
  Your Signature:

  	
   

  	
   

  
	
   

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

  
	
   

  	
   

  
	
   

  	
  Tax Identification No.:

  	
   

  	
   

  
	
   

  
	
  Signature Guarantee*:

  	
   

  	
   

  
										



 












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


 


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SCHEDULE OF
EXCHANGES OF INTERESTS IN THE GLOBAL NOTE*


 


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


 


	
  Date of Exchange

  	
   

  	
  Amount of

  decrease in

  Principal Amount

  at maturity of 

  this Global Note

  	
   

  	
  Amount of

  increase in

  Principal Amount

  at maturity of

  this Global Note

  	
   

  	
  Principal
  Amount

  at maturity of this

  Global Note

  following such

  decrease

  (or increase)

  	
   

  	
  Signature
  of

  authorized officer

  of Trustee or

  Custodian

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  



 












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


 


A-12

















 


EXHIBIT B


 


FORM OF
SUPPLEMENTAL INDENTURE

TO BE DELIVERED BY SUBSEQUENT GUARANTORS


 


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


 


W I T N E S S E T
H


 


WHEREAS, the Company has
heretofore executed and delivered to the Trustee an indenture (the “Indenture”),
dated as of
                      ,
2004 providing for the issuance of       % Senior
Subordinated Notes due 2016 (the “Notes”);


 


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


 


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


 


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


 


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


 


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


 


3.                                       NO
RECOURSE AGAINST OTHERS.  No past,
present or future director, officer, employee, incorporator, stockholder or
agent of the Guaranteeing Subsidiary, as such, shall have any liability for any
obligations of the Company or any Guaranteeing Subsidiary under the Notes, any
Note Guarantees, the Indenture or this Supplemental Indenture or for any claim
based on, in respect of, or by reason of, such obligations or their
creation.  Each Holder of the Notes by
accepting a Note waives and releases all such


 


B-1

















 


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.


 


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


 


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


 


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


 


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


 


B-2

















 


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


 


 


	
  Dated: 

  	
   

  	
  , 20

  	
   

  	
   

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  [GUARANTEEING
  SUBSIDIARY]

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
   

  	
  Name:

  	
   

  
	
   

  	
   

  	
  Title:

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  B&G FOODS, INC.

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
   

  	
  Name:

  	
   

  
	
   

  	
   

  	
  Title:

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  [EXISTING GUARANTORS]

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
   

  	
  Name:

  	
   

  
	
   

  	
   

  	
  Title:

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  [THE BANK OF NEW YORK],

  
	
   

  	
    as Trustee

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
   

  	
  Authorized Signatory

  	
   

  



 


B-3