exv4w6



 



EXHIBIT 4.6

EXECUTION COPY











Emmis Operating Company




and each of the Guarantors party hereto




6 7/8% Senior Subordinated Notes Due 2012
















INDENTURE




Dated as of May 10,
2004














The Bank of Nova Scotia Trust Company 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)	 	13.03
	 
	 	(c)	 	13.03
	313
	 	(a)	 	7.06
	 
	 	(b)      (1)	 	10.03
	 
	 	(b)      (2)	 	7.06; 7.07
	 
	 	(c)	 	7.06; 10.03;13.02
	 
	 	(d)	 	7.06
	314
	 	(a)	 	4.03;13.02; 13.05
	 
	 	(b)	 	10.02
	 
	 	(c)(1)	 	13.04
	 
	 	(c)(2)	 	13.04
	 
	 	(c)(3)	 	N.A.
	 
	 	(d)	 	10.03; 10.04; 10.05
	 
	 	(e)	 	13.05
	 
	 	(f)	 	N.A.
	315
	 	(a)	 	7.01
	 
	 	(b)	 	7.05; 13.02
	 
	 	(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.
	 
	 	(b)	 	6.07
	 
	 	(c)	 	2.12
	317
	 	(a)(1)	 	6.08
	 
	 	(a)(2)	 	6.09
	 
	 	(b)	 	2.04
	318
	 	(a)	 	13.01
	 
	 	(b)	 	N.A.
	 
	 	(c)	 	13.01







N.A. means not applicable.




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




 









 








TABLE OF CONTENTS




	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	Page
	ARTICLE 1.
	 	 	 	 
	DEFINITIONS AND INCORPORATION
BY REFERENCE
	 	 	 	 
	Section 1.01	 	Definitions
	 	 	1	 
	Section 1.02	 	Other Definitions
	 	 	22	 
	Section 1.03	 	Incorporation by Reference of Trust Indenture Act
	 	 	23	 
	Section 1.04	 	Rules of Construction
	 	 	23	 
	ARTICLE 2.
	 	 	 	 
	THE NOTES
	 	 	 	 
	Section 2.01	 	Form and Dating
	 	 	24	 
	Section 2.02	 	Execution and Authentication
	 	 	24	 
	Section 2.03	 	Registrar and Paying Agent
	 	 	25	 
	Section 2.04	 	Paying Agent to Hold Money in Trust
	 	 	25	 
	Section 2.05	 	Holder Lists
	 	 	25	 
	Section 2.06	 	Transfer and Exchange
	 	 	25	 
	Section 2.07	 	Replacement Notes
	 	 	37	 
	Section 2.08	 	Outstanding Notes
	 	 	37	 
	Section 2.09	 	Treasury Notes
	 	 	37	 
	Section 2.10	 	Temporary Notes
	 	 	37	 
	Section 2.11	 	Cancellation
	 	 	38	 
	Section 2.12	 	Defaulted Interest
	 	 	38	 
	ARTICLE 3.
	 	 	 	 
	REDEMPTION AND PREPAYMENT
	 	 	 	 
	Section 3.01	 	Notices to Trustee
	 	 	38	 
	Section 3.02	 	Selection of Notes to Be Redeemed or Purchased
	 	 	38	 
	Section 3.03	 	Notice of Redemption
	 	 	39	 
	Section 3.04	 	Effect of Notice of Redemption
	 	 	40	 
	Section 3.05	 	Deposit of Redemption or Purchase Price
	 	 	40	 
	Section 3.06	 	Notes Redeemed or Purchased in Part
	 	 	40	 
	Section 3.07	 	Optional Redemption
	 	 	40	 
	Section 3.08	 	Mandatory Redemption
	 	 	41	 
	Section 3.09	 	Offer to Purchase by Application of Excess Proceeds
	 	 	41	 
	ARTICLE 4.
	 	 	 	 
	COVENANTS
	 	 	 	 
	Section 4.01	 	Payment of Notes
	 	 	43	 
	Section 4.02	 	Maintenance of Office or Agency
	 	 	43	 
	Section 4.03	 	Reports
	 	 	44	 
	Section 4.04	 	Compliance Certificate
	 	 	44	 
	Section 4.05	 	Taxes
	 	 	45	 
	Section 4.06	 	Stay, Extension and Usury Laws
	 	 	45	 
	Section 4.07	 	Restricted Payments
	 	 	45	 
	Section 4.08	 	Dividend and Other Payment Restrictions Affecting Subsidiaries
	 	 	49	 
	Section 4.09	 	Incurrence of Indebtedness and Issuance of Preferred Stock
	 	 	50	 







i









 






	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	Page
	Section 4.10	 	Asset Sales
	 	 	52	 
	Section 4.11	 	Transactions with Affiliates
	 	 	54	 
	Section 4.12	 	Liens
	 	 	55	 
	Section 4.13	 	INTENTIONALLY OMITTED
	 	 	55	 
	Section 4.14	 	Offer to Repurchase Upon Change of Control
	 	 	55	 
	Section 4.15	 	No Senior Subordinated Debt
	 	 	57	 
	Section 4.16	 	Sale and Leaseback Transactions
	 	 	57	 
	Section 4.17	 	Limitation on Issuances and Sales of Equity Interests in
Wholly-Owned Restricted Subsidiaries
	 	 	58	 
	Section 4.18	 	INTENTIONALLY OMITTED
	 	 	58	 
	Section 4.19	 	Additional Subsidiary Guarantees
	 	 	58	 
	Section 4.20	 	Designation of Restricted and Unrestricted Subsidiaries
	 	 	58	 
	ARTICLE 5.
	 	 	 	 
	SUCCESSORS
	 	 	 	 
	Section 5.01	 	Merger, Consolidation, or Sale of Assets
	 	 	59	 
	Section 5.02	 	Successor Corporation Substituted
	 	 	60	 
	ARTICLE 6.
	 	 	 	 
	DEFAULTS AND REMEDIES
	 	 	 	 
	Section 6.01	 	Events of Default
	 	 	60	 
	Section 6.02	 	Acceleration
	 	 	62	 
	Section 6.03	 	Other Remedies
	 	 	62	 
	Section 6.04	 	Waiver of Past Defaults
	 	 	62	 
	Section 6.05	 	Control by Majority
	 	 	62	 
	Section 6.06	 	Limitation on Suits
	 	 	62	 
	Section 6.07	 	Rights of Holders of Notes to Receive Payment
	 	 	63	 
	Section 6.08	 	Collection Suit by Trustee
	 	 	63	 
	Section 6.09	 	Trustee May File Proofs of Claim
	 	 	63	 
	Section 6.10	 	Priorities
	 	 	64	 
	Section 6.11	 	Undertaking for Costs
	 	 	64	 
	ARTICLE 7.
	 	 	 	 
	TRUSTEE
	 	 	 	 
	Section 7.01	 	Duties of Trustee
	 	 	64	 
	Section 7.02	 	Rights of Trustee
	 	 	65	 
	Section 7.03	 	Individual Rights of Trustee
	 	 	66	 
	Section 7.04	 	Trustee’s Disclaimer
	 	 	66	 
	Section 7.05	 	Notice of Defaults
	 	 	66	 
	Section 7.06	 	Reports by Trustee to Holders of the Notes
	 	 	66	 
	Section 7.07	 	Compensation and Indemnity
	 	 	66	 
	Section 7.08	 	Replacement of Trustee
	 	 	67	 
	Section 7.09	 	Successor Trustee by Merger, etc
	 	 	68	 
	Section 7.10	 	Eligibility; Disqualification
	 	 	68	 
	Section 7.11	 	Preferential Collection of Claims Against Company
	 	 	68	 
	ARTICLE 8.
	 	 	 	 
	LEGAL DEFEASANCE AND COVENANT DEFEASANCE
	 	 	 	 
	Section 8.01	 	Option to Effect Legal Defeasance or Covenant Defeasance
	 	 	68	 
	Section 8.02	 	Legal Defeasance and Discharge
	 	 	69	 
	Section 8.03	 	Covenant Defeasance
	 	 	69	 







ii









 






	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	Page
	Section 8.04	 	Conditions to Legal or Covenant Defeasance
	 	 	70	 
	Section 8.05	 	Deposited Money and Government Securities to be Held in
Trust; Other Miscellaneous Provisions
	 	 	71	 
	Section 8.06	 	Repayment to Company
	 	 	71	 
	Section 8.07	 	Reinstatement
	 	 	71	 
	ARTICLE 9.
	 	 	 	 
	AMENDMENT, SUPPLEMENT AND WAIVER
	 	 	 	 
	Section 9.01	 	Without Consent of Holders of Notes
	 	 	72	 
	Section 9.02	 	With Consent of Holders of Notes
	 	 	73	 
	Section 9.03	 	Compliance with Trust Indenture Act
	 	 	74	 
	Section 9.04	 	Revocation and Effect of Consents
	 	 	74	 
	Section 9.05	 	Notation on or Exchange of Notes
	 	 	74	 
	Section 9.06	 	Trustee to Sign Amendments, etc
	 	 	74	 
	ARTICLE 10.
	 	 	 	 
	SUBORDINATION
	 	 	 	 
	Section 10.01	 	Agreement to Subordinate
	 	 	75	 
	Section 10.02	 	Liquidation; Dissolution; Bankruptcy
	 	 	75	 
	Section 10.03	 	Default on Designated Senior Debt
	 	 	75	 
	Section 10.04	 	Acceleration of Notes
	 	 	76	 
	Section 10.05	 	When Distribution Must Be Paid Over
	 	 	76	 
	Section 10.06	 	Notice by Company
	 	 	77	 
	Section 10.07	 	Subrogation
	 	 	77	 
	Section 10.08	 	Relative Rights
	 	 	77	 
	Section 10.09	 	Subordination May Not Be Impaired by Company
	 	 	77	 
	Section 10.10	 	Distribution or Notice to Representative
	 	 	77	 
	Section 10.11	 	Rights of Trustee and Paying Agent
	 	 	78	 
	Section 10.12	 	Authorization to Effect Subordination
	 	 	78	 
	Section 10.13	 	Amendments
	 	 	78	 
	ARTICLE 11.
	 	 	 	 
	NOTE GUARANTEES
	 	 	 	 
	Section 11.01	 	Guarantee
	 	 	78	 
	Section 11.02	 	Subordination of Note Guarantee
	 	 	79	 
	Section 11.03	 	Limitation on Guarantor Liability
	 	 	80	 
	Section 11.04	 	Execution and Delivery of Note Guarantee
	 	 	80	 
	Section 11.05	 	Guarantors May Consolidate, etc., on Certain Terms
	 	 	80	 
	Section 11.06	 	Releases
	 	 	81	 
	ARTICLE 12.
	 	 	 	 
	SATISFACTION AND DISCHARGE
	 	 	 	 
	Section 12.01	 	Satisfaction and Discharge
	 	 	82	 
	Section 12.02	 	Application of Trust Money
	 	 	83	 
	ARTICLE 13.
	 	 	 	 
	MISCELLANEOUS
	 	 	 	 
	Section 13.01	 	Trust Indenture Act Controls
	 	 	83	 
	Section 13.02	 	Notices
	 	 	83	 
	Section 13.03	 	Communication by Holders of Notes with Other Holders of Notes
	 	 	84	 
	Section 13.04	 	Certificate and Opinion as to Conditions Precedent
	 	 	85	 







iii









 






	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	Page
	Section 13.05	 	Statements Required in Certificate or Opinion
	 	 	85	 
	Section 13.06	 	Rules by Trustee and Agents
	 	 	85	 
	Section 13.07	 	No Personal Liability of Directors, Officers, Employees and Stockholders
	 	 	85	 
	Section 13.08	 	Governing Law
	 	 	86	 
	Section 13.09	 	No Adverse Interpretation of Other Agreements
	 	 	86	 
	Section 13.10	 	Successors
	 	 	86	 
	Section 13.11	 	Severability
	 	 	86	 
	Section 13.12	 	Counterpart Originals
	 	 	86	 
	Section 13.13	 	Table of Contents, Headings, etc
	 	 	86	 







EXHIBITS




	 	 	 
	Exhibit A

	 	FORM OF NOTE
	Exhibit B

	 	FORM OF CERTIFICATE OF TRANSFER
	Exhibit C

	 	FORM OF CERTIFICATE OF EXCHANGE
	Exhibit D

	 	FORM OF CERTIFICATE OF ACQUIRING INSTITUTIONAL ACCREDITED

INVESTOR
	Exhibit E

	 	FORM OF NOTATION OF GUARANTEE
	Exhibit F

	 	FORM OF SUPPLEMENTAL INDENTURE








iv









 





     INDENTURE dated as of May 10, 2004 among Emmis Operating Company, an
Indiana corporation (the “Company”), the Guarantors (as defined herein) and The
Bank of Nova Scotia Trust Company of New York, 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 herein) of the 6 7/8% Senior Subordinated Notes due 2012 (the “Notes”):



ARTICLE 1.

DEFINITIONS AND INCORPORATION

BY REFERENCE




Section 1.01 Definitions.




     “121⁄2% Notes” means ECC’s 121⁄2% Senior Discount Notes due 2011
issued under an indenture, dated March 27, 2001, between ECC and The Bank of
Nova Scotia Trust Company of New York, as trustee, as supplemented, amended or
otherwise modified.



     “144A Global Note” means a Global Note substantially in the form of
Exhibit A hereto bearing the Global Note Legend and the Private Placement
Legend and deposited with or on behalf of, and registered in the name of, the
Depositary or its nominee that will be issued in a denomination equal to the
outstanding principal amount of the Notes sold in reliance on Rule 144A.



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




     (1) Indebtedness or Disqualified Stock 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 or
Disqualified Stock is incurred in connection with, or in contemplation
of, such other Person merging with or into, or becoming a Subsidiary of,
such specified Person; and




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



     “Additional Notes” means additional 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, shall mean 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. For purposes of this definition, the terms
“controlling,” “controlled by” and “under common control with” shall have
correlative meanings.



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



     “Applicable Premium” means, with respect to any Note on any redemption
date, the greater of:




     (1) 1.0% of the principal amount of the Note; or




     (2) the excess of:



1









 






     (a) the present value at such redemption date of (i) the
redemption price of the Note at May 15, 2008, (such redemption
price being set forth in the table appearing in Section 3.07
hereof) plus (ii) all required interest payments due on the Note
through May 15, 2008, (excluding accrued but unpaid interest to the
redemption date), computed using a discount rate equal to the
Treasury Rate as of such redemption date plus 50 basis points; over




     (b) the principal amount of the Note, if greater.



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



     “Asset Sale” means:




     (1) the sale, lease, conveyance or other disposition of any assets
or rights, other than sales of inventory, licenses of intellectual
property or leases of assets, in each case in the ordinary course of
business; provided that the sale, 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 the provisions of
Section 4.14 hereof and/or the provisions of Section 5.01 hereof and not
by the provisions of Section 4.10 hereof; and




     (2) the issuance of Equity Interests by any of the Company’s
Restricted Subsidiaries or the sale of Equity Interests in any of its
Subsidiaries,



Notwithstanding the preceding, the following items shall not be deemed to be
Asset Sales:




     (1) any single transaction or series of related transactions that:
(a) involves assets having a fair market value of less than $10.0
million; or (b) results in net proceeds to the Company and its Restricted
Subsidiaries of less than $10.0 million;




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




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




     (4) a transfer by the Company of assets in a transaction that
qualifies as a charitable contribution or donation and which does not
exceed $10.0 million in the aggregate;




     (5) a Restricted Payment or Permitted Investment that is permitted
under Section 4.07 hereof;




     (6) a granting of Liens not prohibited by this Indenture;




     (7) a sale or other disposition of cash or Cash Equivalents; and




     (8) a sale or lease of obsolete equipment, inventory or other assets
in the ordinary course of business.



2









 





     “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 such term is used in Section 13(d)(3)
of the Exchange Act), such “person” shall be deemed to have beneficial
ownership of all securities that such “person” has the right to acquire,
whether such right is currently exercisable or is exercisable only after the
passage of time.



     “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.



     “Broker-Dealer” has the meaning set forth in the Registration Rights
Agreement.



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



     “Capital Lease Obligation” means, at the time any determination thereof is
to be made, the amount of the liability in respect of a capital lease that
would at such time be required to be capitalized on a balance sheet in
accordance with GAAP.



     “Capital Stock” means:




     (1) in the case of a corporation, corporate stock;




     (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 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.



     “Cash Equivalents” means:




     (1) United States dollars;




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



3









 






date of acquisition;




     (3) certificates of deposit and eurodollar time deposits with
maturities of one year 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 $250.0 million and a Thompson Bank Watch Rating
of “B” or better;




     (4) repurchase obligations with a term of not more than ten 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 or marketable direct obligations issued by any
state of the United States of America or any political subdivision of any
such state or any public instrumentality thereof, in each case, having
one of the two highest ratings obtainable from Moody’s or S&P and in each
case maturing within one year after the date of acquisition; and




     (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.



     “Cash Interest Expense” means, with respect to any Person for any period,
the sum, without duplication, of:




     (1) the cash component of consolidated interest expense determined
in accordance with GAAP of such Person and its Restricted Subsidiaries
for such period, whether paid or accrued, excluding, without limitation,
original issue discount, non-cash interest expense, amortization and
write-off of debt issuance costs, the interest component of any deferred
payment obligations and net payments, if any, pursuant to Hedging
Obligations; plus




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




     (3) any cash interest payment 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 and
limited to the amount of such Guarantee or the fair market value of the
property secured by such Lien, as the case may be.



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




     (1) the sale, 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 assets of the Company
and its Restricted Subsidiaries taken as a whole to any “person” (as such
term is used in Section 13(d)(3) of the Exchange Act) other than the
Principal or its Related Parties;




     (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 Principal and its Related
Parties and disregarding any holding company whose principal asset is
capital stock of the Company, 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,



4









 






provided no Change of Control shall have occurred under this clause
(3) if the Principal or its Related Parties maintains the right to elect
the majority of the Board of Directors; or




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



provided that a Person shall not be deemed to have beneficial ownership of
securities subject to a stock purchase, merger or similar agreement until the
consummation of the transactions contemplated by such agreement. For avoidance
of doubt, it is understood that under no circumstances shall a sale,
assignment, transfer, conveyance or other disposition, in one or a series of
related transactions, of assets of the Company and its Restricted Subsidiaries
that represent less than 50% of the Consolidated EBITDA of the Company for the
Reference Period immediately preceding such transaction or transactions
constitute a Change of Control.



     “Clearstream” means Clearstream Banking, S.A.



     “Company” has the meaning assigned to it in the preamble of this
Indenture and shall include any and all successors thereto.



     “Consolidated EBITDA” means, with respect to any Person for any period,
the Consolidated Net Income of such Person for such period plus:




     (1) an amount equal to any extraordinary loss on an after tax basis
plus any loss realized in connection with an Asset Sale or any
refinancing of Indebtedness on an after tax basis, 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) consolidated interest expense of such Person and its Restricted
Subsidiaries for such period, whether paid or accrued and whether or not
capitalized (including, without limitation, amortization or write-off of
debt issuance costs and original issue discount, non-cash interest
payments, the interest component of any deferred payment obligations,
deferred financing costs, the interest component of all payments
associated with Capital Lease Obligations, commissions, consent fees,
premiums, prepayment penalties, discounts and other fees and charges
incurred in respect of letter of credit or bankers’ acceptance
financings, and net payments, if any, pursuant to Hedging Obligations),
to the extent that any such expense was 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) 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) all one-time cash compensation payments in connection with
employment agreements as in effect on the date of this Indenture; plus



5









 






     (6) all other non-cash charges of such Person and its Restricted
Subsidiaries (excluding any such non-cash to the extent that it
represents an accrual of or reserve for cash expenditures in any future
period); plus




     (7) minority interest expense of Restricted Subsidiaries (to the
extent not otherwise included in Consolidated Net Income), non-recurring
restructuring costs, expenses and charges and non-recurring acquisition
costs and fees, including expenses and payments directly attributable to
employee reduction or employee relocation (including cash severance
payments), integration of acquired businesses or Persons, disposition of
one or more Subsidiaries or businesses, exiting one or more lines of
business and expenses and payments directly attributable to the
termination of real estate leases or real estate sales and other
non-ordinary course, non-operating costs and expenses in connection
therewith; minus




     (8) non-cash items increasing such Consolidated Net Income for such
period, other than items that were accrued or earned in the ordinary
course of business,



in each case, on a consolidated basis and determined in accordance with GAAP.
Notwithstanding the preceding, the provision for taxes based on the income or
profits of, and the depreciation and amortization and other non-cash charges
of, a Restricted Subsidiary of the Company shall be added to Consolidated Net
Income to compute Consolidated EBITDA of the Company only to the extent that a
corresponding amount would be permitted at the date of determination to be
dividended to the Company by such Restricted Subsidiary without prior approval
(that has not been obtained), pursuant to the terms of its charter and all
agreements, instruments, judgments, decrees, orders, statutes, rules and
governmental regulations applicable to that Restricted Subsidiary or its
stockholders (other than encumbrances or restrictions on such declaration or
payment that are permitted by Section 4.08(b) hereof).



     “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 or loss of any Person (other than the Company)
that is not a Restricted Subsidiary or that is accounted for by the
equity method of accounting shall be excluded; provided, however, that
such Net Income shall be included only to the extent of the amount of
dividends or distributions paid in cash to the specified Person or a
Restricted Subsidiary thereof;




     (2) the Net Income of any Restricted Subsidiary shall be excluded to
the extent that the declaration or payment of dividends or similar
distributions by that Restricted Subsidiary of that Net Income 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 (other than
encumbrances or restrictions on such declaration or payment that are
permitted by Section 4.08(b) hereof);




     (3) the Net Income or loss of any Unrestricted Subsidiary shall be
excluded, whether or not distributed to the specified Person or one of
its Subsidiaries; and




     (4) the cumulative effect of a change in accounting principles shall
be excluded.



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



6









 






     (1) was a member of the Board of Directors of ECC or of the Company
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 either Board at the time of such nomination or election; or




     (3) is a designee of the Principal or a Related Party thereof or was
nominated by the Principal or a Related Party thereof.



     “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 the
date hereof, by and among the Company, ECC, each of the financial institutions
from time to time a party thereto, Bank of America, N.A., as administrative
agent, Credit Suisse First Boston, acting through its Cayman Islands Branch,
Wachovia Bank, N.A. and Deutsche Bank Securities Inc., as co- documentation
agents, and Goldman Sachs Credit Partners L.P., as syndication agent, as
further amended, restated, modified, renewed, refunded, replaced or refinanced
in whole or in part from time to time.



     “Credit Facilities” means one or more debt facilities (including, without
limitation, the Credit Agreement, if applicable) providing for revolving credit
loans, term loans, letters of credit, receivables financing, commercial paper
or any other form of debt securities and, in each case, as amended, restated,
supplemented, modified, renewed, refunded, replaced, extended, refinanced or
otherwise restructured in whole or in part from time to time (including
increasing the amount of available borrowings thereunder or adding subsidiaries
as additional borrowers or guarantors thereunder) with respect to all or any
portion of the Indebtedness under such agreement or agreements by any successor
or replacement agreement or agreements and whether by the same or any other
agent, lender or group of lenders.



     “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 notice or both would be, an Event of Default.



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



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



     “Designated Senior Debt” means (i) any and all Indebtedness and other
obligations under, or in respect of, the Credit Agreement and (ii) any other
Senior Debt permitted under this Indenture the principal amount of which is
$25.0 million or more and that has been designated by the Company as
“Designated Senior Debt.”



7









 





     “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 thereof), 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
thereof, 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 thereof have the right to require the Company to repurchase such
Capital Stock upon the occurrence of a change of control or an asset sale shall
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.



     “Domestic Restricted Subsidiary” means any Restricted Subsidiary organized
under or incorporated in any State of the United States or the District of
Columbia and has its principal place of business in the United States.



     “ECC Preferred Stock” means ECC’s 61/4% Series A Cumulative Convertible
Preferred 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) whether or not currently
exercisable.



     “Equity Offering” means an offer and sale in an amount equal to or greater
than $25.0 million of Capital Stock (other than Disqualified Stock) of the
Company or any direct or indirect parent of the Company to the extent that the
proceeds are contributed to the Company in the form of Capital Stock or as
consideration for the issuance and sale of Capital Stock, in each case, other
than Disqualified Stock of the Company.



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



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



     “Exchange Notes” means the Notes issued in the Exchange Offer pursuant to
Section 2.06(f) hereof.



     “Exchange Offer” has the meaning set forth in the Registration Rights
Agreement.



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



     “Existing Indebtedness” means Indebtedness of the Company and its
Subsidiaries (other than Indebtedness under the Credit Agreement) in existence
on the date of this Indenture, until such amounts are repaid.



     “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, which are in effect as of the date of this Indenture.



     “Global Note Legend” means the legend set forth in Section 2.06(g)(2)
hereof, which is required to be placed on all Global Notes issued under this
Indenture.



8









 





     “Global Notes” means, individually and collectively, each of the
Restricted Global Notes and the Unrestricted Global Notes deposited with or on
behalf of and registered in the name of the Depository or its nominee,
substantially in the form of Exhibit A hereto and that bears the Global Note
Legend and that has the “Schedule of Exchanges of Interests in the Global Note”
attached thereto, issued in accordance with Section 2.01, 2.06(b)(3),
2.06(b)(4), 2.06(d)(2) or 2.06(f) 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 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.



     “Guarantors” means each of:




     (1) the Parent Guarantor;




     (2) the Subsidiary Guarantors; and




     (3) any other Subsidiary of the Company that executes a Subsidiary
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 net
obligations of such Person under:




     (1) interest rate swap agreements (whether from fixed to floating or
from floating to fixed), interest rate cap agreements, forward purchase
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, in
any case either generally or under specific contingencies.



     “Holder” means a Person in whose name a Note is registered in the books of
the Registrar.



     “IAI Global Note” means a Global Note substantially in the form of Exhibit
A hereto bearing the Global Note Legend and the Private Placement Legend and
deposited with or on behalf of and registered in the name of the Depositary or
its nominee that will be issued in a denomination equal to the outstanding
principal amount of the Notes sold to Institutional Accredited Investors.



     “Indebtedness” means, without duplication, with respect to any specified
Person, any indebtedness of such Person, whether or not contingent, in respect
of:




     (1) borrowed money;



9









 






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




     (3) banker’s acceptances;




     (4) representing Capital Lease Obligations;




     (5) the balance deferred and unpaid of the purchase price of any
property, except any such balance that constitutes an accrued expense or
trade payable; or




     (6) representing any Hedging Obligations; provided that the
aggregate amount of Indebtedness outstanding pursuant to any Hedging
Obligation shall be zero until such Person has the obligation to make any
payment in respect of such Hedging Obligations and such payment is not
made within 10 days after its due date,



if and to the extent any of the preceding items (other than letters of credit
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) (limited to the lesser of the fair market value of the
property securing such Lien and the amount of the obligation so secured) and,
to the extent not otherwise included, the Guarantee by such Person of any
indebtedness of any other Person.



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




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




     (2) the principal amount thereof, together with any interest thereon
that is more than 30 days past due, in the case of any other
Indebtedness.




     Notwithstanding the foregoing, Indebtedness shall not include:




     (1) trade accounts payable and other similar accrued liabilities
arising in the ordinary course of business;




     (2) obligations of such Person other than principal;




     (3) any liability for federal, state, local or other taxes owed or
owing to any governmental entity;




     (4) obligations of such Person with respect to performance and
surety bonds and completion guarantees in the ordinary course of
business; or




     (5) in connection with the purchase by such Person or any Restricted
Subsidiary of any business, any post-closing payment adjustments to which
the seller may become entitled to the extent such payment is determined
by a final closing balance sheet or such payment depends on the
performance of such business after the closing; provided, however, that,
at the time of closing, the amount of any such payment is not
determinable and, to the extent such payment thereafter becomes fixed and
determined, the amount is paid within 30 days thereafter.



10









 





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



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



     “Initial Notes” means the first $375,000,000 aggregate principal amount of
Notes issued under this Indenture on the date hereof.



     “Initial Purchasers” means Goldman, Sachs & Co., Deutsche Bank Securities
Inc., Banc of America Securities, Credit Suisse First Boston LLC, Wachovia
Capital Markets, LLC, Harris Nesbitt Corp., NatCity Investments, Inc., Rabo
Securities USA, Inc. and SunTrust Capital Markets, Inc.



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



     “Investments” means, with respect to any Person, all investments by such
Person in other Persons (including Affiliates) in the forms of direct or
indirect loans (including guarantees of Indebtedness or other obligations),
advances or capital contributions (excluding 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 Restricted Subsidiary of the Company sells or otherwise
disposes of any Equity Interests of any direct or indirect Restricted
Subsidiary of the Company such that, after giving effect to any such sale or
disposition, such Person is no longer a Restricted Subsidiary of the Company,
the Company shall be deemed to have made an Investment on the date of any such
sale or disposition equal to the fair market value of the Equity Interests of
such Restricted Subsidiary not sold or disposed of in an amount determined as
provided in Section 4.07(e) hereof.



     “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.



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



     “Leverage Ratio” means, with respect to any specified Person on any date
of determination (the “Calculation Date”), the ratio, on a pro forma basis, of
(1) the sum of the aggregate outstanding amount of Indebtedness and
Disqualified Stock of such Person and its Restricted Subsidiaries as of the
Calculation Date determined on a consolidated basis in accordance with GAAP to
(2) the Consolidated EBITDA of such Person and its Restricted Subsidiaries
attributable to continuing operations and businesses for the Reference Period.



     For purposes of calculating the Leverage 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



11









 






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;




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




     (3) restructuring and other non-operating charges contained in
Consolidated EBITDA attributable to discontinued operations as of the
Calculation Date (as determined in accordance with GAAP), and
Consolidated EBITDA attributable to operations or businesses (and
ownership interests therein) disposed of, will be excluded;




     (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; and




     (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.



     “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.



     “Marketable Securities” means publicly traded debt or equity securities
that are listed for trading on a national securities exchange and that were
issued by a corporation with debt securities are rated at least “AAA—” from S&P
or “Aaa3” from Moody’s.



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



     “Net Income” means, with respect to any Person, the net income (loss) of
such Person and its Restricted Subsidiaries, 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
(including without limitation dispositions pursuant to sale and leaseback
transactions); 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 or loss.



     “Net Proceeds” means the aggregate cash proceeds received by the Company
or any of its Restricted Subsidiaries in respect of any Asset Sale (including,
without limitation, any cash received upon the sale or other disposition of any
non-cash consideration received in any Asset Sale), net of:




     (1) 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 thereof;




     (2) taxes paid or payable as a result thereof, in each case after
taking into account any available tax credits or deductions and any tax
sharing arrangements;



12









 






     (3) amounts required to be applied to the repayment of Indebtedness
(other than Indebtedness under a Credit Facility), secured by a Lien on
the asset or assets that were the subject of such Asset Sale;




     (4) all distributions and other payments required to be made to
minority interest holders in Restricted Subsidiaries as a result of such
Asset Sale;




     (5) the deduction of appropriate amounts provided by the seller as a
reserve in accordance with GAAP against any liabilities associated with
the assets disposed of in such Asset Sale and retained by the Company or
any Restricted Subsidiary after such Asset Sale; and




     (6) without duplication, any reserves that the Company’s Board of
Directors determines in good faith should be make in respect of the sale
price of such asset or assets for post closing adjustments;



provided that in the case of any reversal of any reserve referred to in clauses
(5) and (6) above in excess of $1.0 million, the amount so reserved shall be
deemed to be Net Proceeds from an Asset Sale as of the date of such reversal.



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



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



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



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



     “Offering” means the offering of $375.0 million in aggregate principal
amount of Notes pursuant to the Company’s Offering Circular dated April 27,
2004.



     “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, the
secretary, the principal accounting officer or the principal general counsel 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.



     “Parent Guarantor” or “ECC” means Emmis Communications Corporation or any
successor thereto.



13









 





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



     “Permitted Business” means any business in which the Company or its
Restricted Subsidiaries are engaged on the date of this Indenture and any other
business related, incidental, complementary or ancillary thereto, and any
unrelated business to the extent that it is not material in size as compared
with the Company and its Restricted Subsidiaries’ business as a whole.



     “Permitted Investments” means:




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




     (2) any Investment in Cash Equivalents;




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




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




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




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




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




     (6) 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 (6) since the date of
this Indenture, not to exceed $30.0 million in the aggregate;




     (7) Investments in Permitted Joint Ventures, provided that, at the
time of and immediately after giving pro forma effect to such Investment
(and any related transaction or series of transactions), the Leverage
Ratio would be less than or equal to the Leverage Ratio immediately prior
to such Investment;




     (8) any purchase, redemption, defeasance or other acquisition of
Indebtedness of the Company or any Restricted Subsidiary using the
proceeds of Permitted Refinancing Indebtedness incurred under paragraph
(5) of the definition of Permitted Debt;




     (9) agreements relating to the Indebtedness incurred under paragraph
(7) of the definition of Permitted Debt;




     (10) Investments in securities of trade creditors or customers
received pursuant to any plan of reorganization or similar arrangement
upon the bankruptcy or insolvency of such trade creditors or customers in
good faith settlement of delinquent obligations of such trade creditors
or customers;



14









 






     (11) guarantees of Indebtedness otherwise permitted to be incurred
by this Indenture;




     (12) Investments in the form of Productive Assets received in
connection with an Asset Sale;




     (13) commission, travel, payroll, entertainment, relocation and
similar advances made to officers and employees of the Company or any
Restricted Subsidiary made in the ordinary course of business; and




     (14) any Investment in the form of loans or advances to employees of
the Company not to exceed $3.0 million in aggregate principal amount at
any one time outstanding.



     “Permitted Joint Ventures” means a corporation, partnership or other
entity (other than a Subsidiary) engaged in one or more Permitted Businesses in
respect of which the Company or a Restricted Subsidiary (a) beneficially owns
at least 20% of the Equity Interests of such entity and (b) either is a party
to an agreement empowering one or more parties to such agreement (which may or
may not be the Company or a Subsidiary), or is a member of a group that,
pursuant to the constituent documents of the applicable corporation,
partnership or other entity, has the power, to direct the policies, management
and affairs of such entity.



     “Permitted Junior Securities” means: (1) Qualified Equity Interests in the
Company; or (2) debt securities of the Company or any Guarantor that are
subordinated to all Senior Debt (and any debt securities issued in exchange for
Senior Debt), to substantially the same extent as, or to a greater extent than,
the Notes and the Subsidiary Guarantees are subordinated to Senior Debt
pursuant to this Indenture.



     “Permitted Liens” means:




     (1) Liens on the assets of the Company and any Guarantor securing
Senior Debt and Indebtedness and other Obligations under Credit
Facilities to the extent such Indebtedness was permitted by the terms of
this Indenture to be incurred;




     (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 Restricted
Subsidiary of the Company; provided that such Liens were in existence
prior to the 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 Restricted Subsidiary;




     (4) Liens on property existing at the time of acquisition thereof by
the Company or any Restricted Subsidiary of the Company, provided that
such Liens were in existence prior to the contemplation of such
acquisition;




     (5) Liens to secure the performance of statutory obligations, surety
or appeal bonds, performance bonds or other obligations of a like nature
incurred in the ordinary course of business;




     (6) Liens to secure Indebtedness (including Capital Lease
Obligations) permitted by Section 4.09(b)(4) hereof covering only the
assets acquired with such Indebtedness;



15









 






     (7) Liens existing on the date of this Indenture;




     (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 that are diligently pursued, provided that any
reserve or other appropriate provision as shall be required in conformity
with GAAP shall have been made therefor;




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




     (10) statutory Liens of landlords and Liens of carriers,
warehousemen, mechanics, suppliers, materialmen, repairmen and other
Liens imposed by law incurred in the ordinary course of business for sums
not yet delinquent or being contested in good faith, if such reserve or
other appropriate provision, if any, as shall be required by GAAP shall
have been made in respect thereof;




     (11) Liens incurred or deposits made in the ordinary course of
business in connection with workers’ compensation, unemployment insurance
and other types of social security, including any Lien securing letters
of credit issued in the ordinary course of business in connection
therewith, or to secure the performance of tenders, statutory
obligations, surety and appeal bonds, bids, leases, government contracts,
performance and return-of-money bonds and other similar obligations
(exclusive of obligations for the payment of borrowed money);




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




     (13) 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;




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




     (15) Liens encumbering deposits made to secure obligations arising
from statutory, regulatory, contractual, or warranty requirements of the
Company or a Restricted Subsidiary, including rights of offset and
set-off;




     (16) Liens securing Hedging Obligations that are otherwise permitted
under this Indenture;




     (17) any lease or sublease to a third party;




     (18) Liens on materials, inventory or consumables and the proceeds
therefrom securing trade payables relating to such materials, inventory
or consumables;




     (19) Liens in favor of customs and revenues authorities arising as a
matter of law to secure payment of customs duties in connection with the
importation of goods; and



16









 






     (20) any extension, renewal or replacement, in whole or in part, of
any Lien described in the foregoing clauses (1) through (20) provided
that the Lien so extended, renewed or replaced does not extend to any
additional property or assets.



     “Permitted Payments to Parent” means, without duplication as to amounts:




     (1) payments to the Parent Guarantor to permit the Parent Guarantor
to pay reasonable accounting, legal and administrative expenses of the
Parent Guarantor when due, in an aggregate amount not to exceed $5.0
million per annum;




     (2) payments to the Parent Guarantor to pay for any expenses
incurred in connection with any debt or equity financing or any
acquisition or other non-ordinary course transaction whether or not the
financing, acquisition or other transaction actually closes; and




     (3) any payments to ECC pursuant to any tax sharing agreement
between Emmis or ECC or any other Person with which Emmis is required to,
or permitted to, file a consolidated return or with which Emmis is or
could be part of a consolidated group for tax purposes; provided however,
that the aggregate amount payable by Emmis pursuant thereto shall not
exceed the amount of taxes that Emmis and its Affiliated Subsidiaries
would have been liable for if they were filing a consolidated return that
included only Emmis and its Subsidiaries.



     “Permitted Refinancing Indebtedness” means any Indebtedness of the Company
or any of its Restricted Subsidiaries or Disqualified Stock issued in exchange
for, or the net proceeds of which are used to extend, refinance, renew,
replace, defease or refund other Indebtedness or Disqualified Stock 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
of (or accreted value, if applicable), plus accrued interest on, the
Indebtedness so extended, refinanced, renewed, replaced, defeased or
refunded (plus the amount of expenses, consent fees and prepayment
premiums incurred in connection therewith);




     (2) such Permitted Refinancing Indebtedness has a final maturity
date later than 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 extended, refinanced, renewed,
replaced, defeased or refunded;




     (3) if the Indebtedness being extended, refinanced, renewed,
replaced, defeased or refunded is subordinated in right of payment to the
Notes, such Permitted Refinancing Indebtedness 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 extended, refinanced, renewed, replaced, defeased or refunded; and




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



     “Person” means any individual, corporation, partnership, joint venture,
association, joint-stock company, trust, unincorporated organization, limited
liability company or government or other entity.



     “Principal” means Jeffrey H. Smulyan.



17









 





     “Private Placement Legend” means the legend set forth in Section
2.06(g)(1) hereof to be placed on all Notes issued under this Indenture except
where otherwise permitted by the provisions of this Indenture.



     “Productive Assets” means assets (including Equity Interests) that are
used or usable by the Company and/or a Restricted Subsidiary in Permitted
Businesses; provided that for any Equity Interests to qualify as Productive
Assets, they must, after giving pro forma effect to the transaction in which
they were acquired, be Equity Interests of a Restricted Subsidiary.



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



     “Qualified Equity Interests” means Equity Interests of the Company other
than Disqualified Stock; provided that such Equity Interests shall not be
deemed Qualified Equity Interests to the extent sold or owed to a Subsidiary of
the Company or financed, directly or indirectly, using funds (1) borrowed from
the Company or any Subsidiary of the Company until and to the extent such
borrowing is repaid or (2) contributed, extended, guaranteed or advanced by the
Company or any Subsidiary of the Company (including, without limitation, in
respect of any employee stock ownership or benefit plan).



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



     “Registration Rights Agreement” means the Registration Rights Agreement,
dated as of May 10, 2004, among the Company, the Guarantors and the other
parties named on the signature pages thereof, as such agreement may be amended,
modified or supplemented from time to time, and, with respect to any Additional
Notes, one or more registration rights agreements among the Company, the
Guarantors and the other parties thereto, as such agreement(s) may be amended,
modified or supplemented from time to time, relating to rights given by the
Company to the purchasers of Additional Notes to register such Additional Notes
under the Securities Act.



     “Regulation S” means Regulation S promulgated under the Securities Act.



     “Regulation S Global Note” means a Global Note substantially in the form
of Exhibit A hereto bearing the Global Note Legend and the Private Placement
Legend and deposited with or on behalf of and registered in the name of the
Depositary or its nominee, issued in a denomination equal to the outstanding
principal amount of the Notes sold in reliance on Rule 903 of Regulation S.



     “Related Party” with respect to the Principal means:




     (1) any controlling stockholder, controlling member, general
partner, Subsidiary, or spouse or immediate family member (in the case of
an individual) of such Principal;




     (2) any estate, trust, corporation, partnership or other entity, the
beneficiaries, stockholders, partners, owners or Persons beneficially
holding a controlling interest of which consist of such Principal and/or
such other Persons referred to in the immediately preceding clause (1);
or




     (3) any executor, administrator, trustee, manager, director or other
similar fiduciary of any Person referred to in the immediately preceding
clause (2), acting solely in such capacity.



18









 





     “Representative” means the indenture trustee or other trustee, agent or
representative for any Senior Debt.



     “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 Definitive Note” means a Definitive Note bearing the Private
Placement Legend.



     “Restricted Global Note” means a Global Note bearing the Private Placement
Legend.



     “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.



     “Rule 144” means Rule 144 promulgated under the Securities Act.



     “Rule 144A” means Rule 144A promulgated under the Securities Act.



     “Rule 903” means Rule 903 promulgated under the Securities Act.



     “Rule 904” means Rule 904 promulgated under the Securities Act.



     “S&P” means Standard & Poor’s Corporation.



     “SEC” means the Securities and Exchange Commission.



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



     “Senior Debt” means:




     (1) all Indebtedness outstanding under the Credit Facilities and all
Hedging Obligations and any Guarantees thereof with respect thereto of
the Company whether outstanding on the issue date or thereafter incurred;





     (2) any other Indebtedness permitted to be incurred by the Company
or any of its Restricted Subsidiaries under the terms of this Indenture,
unless the instrument under which such Indebtedness is incurred expressly
provides that it is on a parity with or subordinated in right of payment
to the Notes; and




     (3) all Obligations with respect to the items listed in the
preceding clauses (1) and (2) (including any interest accruing subsequent
to the filing of a petition of bankruptcy at the rate provided for in the
documentation with respect thereto, whether or not such interest is an
allowed claim under applicable law).



Notwithstanding anything to the contrary in the preceding, Senior Debt will not
include:



19









 









     (1) any liability for federal, state, local or other taxes owed or
owing by the Company or the Restricted Subsidiaries;




     (2) any Indebtedness of the Company or the Restricted Subsidiaries
to any of its Subsidiaries;




     (3) any trade payables; or




     (4) any Indebtedness that is incurred in violation of this Indenture
(but only to the extent so incurred).



     “Shelf Registration Statement” means the Shelf Registration Statement as
defined in the Registration Rights Agreement.



     “Significant Subsidiary” means, with respect to any Person, 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 Act, as such
Regulation is in effect on the date hereof.



     “Special Interest” means all liquidated damages then owing pursuant to the
Registration Rights Agreement.



     “Stated Maturity” means, with respect to any installment of interest or
principal on any series of Indebtedness, the date on which such payment of
interest or principal was scheduled to be paid in the original documentation
governing such Indebtedness, and shall 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 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) to vote in
the election of directors, managers or trustees thereof is at the time
owned or controlled, directly or indirectly, by such 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 such Person or one or more
Subsidiaries of such Person (or any combination thereof).



     “Subsidiary Guarantors” means all of the Company’s direct and indirect
wholly-owned Domestic Restricted Subsidiaries that Guarantee the Credit
Agreement, other than any Domestic Restricted Subsidiary which is designated an
Unrestricted Subsidiary in accordance with the provisions of Section 4.20
hereof.



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



     “Treasury Rate” means, as of any redemption date, the yield to maturity as
of such redemption date of United States Treasury securities with a constant
maturity (as compiled and published in the most recent Federal Reserve
Statistical Release H.15 (519) that has become publicly available at least two
business days prior to the redemption date (or, if such Statistical Release is
no longer published, any publicly available source of similar market data))
most nearly equal to the period from the redemption



20









 





date to May 15, 2008; provided, however, that if the period from the
redemption date to May 15, 2008, is less than one year, the weekly average
yield on actually traded United States Treasury securities adjusted to a
constant maturity of one year will be used.



     “Trustee” means The Bank of Nova Scotia Trust Company 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 Definitive Note” means a Definitive Note that does not bear
and is not required to bear the Private Placement Legend.



     “Unrestricted Global Note” means a Global Note that does not bear and is
not required to bear the Private Placement Legend.



     “Unrestricted Subsidiary” means Emmis Enterprises Inc. and Subsidiaries of
Emmis International Broadcasting Corporation and any other Subsidiary of the
Company that would but for this definition of “Unrestricted Subsidiary” be a
Restricted Subsidiary as to which all of the following conditions apply:




     (1) neither the Company nor any of its other Restricted Subsidiaries
provides credit support for any Indebtedness of such Subsidiary
(including any undertaking, agreement or instrument evidencing such
Indebtedness) other than Permitted Investments and Restricted Payments
permitted by this Indenture;




     (2) such Subsidiary is not liable, directly or indirectly, with
respect to any Indebtedness other than Unrestricted Subsidiary
Indebtedness;




     (3) neither the Company nor any of its Restricted Subsidiaries has
made an Investment in such Subsidiary unless such Investment was
permitted by the provisions of Section 4.07 hereof; and




     (4) the Board of Directors of the Company, as provided below, shall
have designated such Subsidiary (including any newly formed or acquired
Subsidiary) to be an Unrestricted Subsidiary; provided that after giving
effect to such designation, such Unrestricted Subsidiary does not own,
directly or indirectly, any Capital Stock of any other Restricted
Subsidiary (other than a Subsidiary of such Unrestricted Subsidiary). Any
such designation by the Board of Directors of the Company shall be
evidenced to the Trustee by filing with the Trustee a board resolution
giving effect to such designation and an Officers’ Certificate certifying
that such designation complies with the foregoing conditions.



The Board of Directors of the Company may designate any Unrestricted Subsidiary
as a Restricted Subsidiary; provided that:




     (1) all Indebtedness of such Unrestricted Subsidiary shall be deemed
to be incurred on the date such Unrestricted Subsidiary becomes a
Restricted Subsidiary; and




     (2) the redesignation would not cause a Default or an Event of
Default.



Any Subsidiary of an Unrestricted Subsidiary shall be an Unrestricted
Subsidiary for purposes of this Indenture.



21









 








     “Unrestricted Subsidiary Indebtedness” of any Unrestricted Subsidiary
means Indebtedness of such Unrestricted Subsidiary:




     (1) as to which neither the Company nor any Restricted Subsidiary is
directly or indirectly liable (by virtue of the Company or any such
Restricted Subsidiary being the primary obligor on, guarantor of, or
otherwise liable in any respect to such Indebtedness) except to the
extent of any Permitted Investment and Restricted Payment permitted by
this Indenture; and




     (2) which, upon the occurrence of a default with respect thereto
(other than as a result of a failure to perform under any Guarantee or
other Investment of the Company or any Restricted Subsidiary of the
Company in such Unrestricted Subsidiary), does not result in, or permit
any Holder of any Indebtedness of the Company or any Restricted
Subsidiary to declare, a default on such Indebtedness of the Company or
any Restricted Subsidiary or cause the payment thereof to be accelerated
or payable prior to its Stated Maturity other than under the terms of any
Indebtedness existing on the date of this Indenture.



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



     “Voting Stock” of any 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 thereof, 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.



     “Wholly Owned Restricted Subsidiary” of any Person means a Restricted
Subsidiary of such Person all of the outstanding Capital Stock or other
ownership interests of which (other than directors’ qualifying shares) shall at
the time be owned by such Person and/or by one or more Wholly Owned Restricted
Subsidiaries of such Person.



Section 1.02 Other Definitions.




	 	 	 	 	 
	 	 	Defined in
	Term
	 	Section

	“Affiliate Transaction”
	 	 	4.11	 
	“Asset Sale Offer”
	 	 	3.09	 
	“Authentication Order”
	 	 	2.02	 
	“Change of Control Offer”
	 	 	4.14	 
	“Change of Control Payment”
	 	 	4.14	 
	“Change of Control Payment Date”
	 	 	4.14	 
	“Covenant Defeasance”
	 	 	8.03	 
	“DTC”
	 	 	2.03	 
	“Event of Default”
	 	 	6.01	 







22









 






	 	 	 	 	 
	 	 	Defined in
	Term
	 	Section

	“Excess Proceeds”
	 	 	4.10	 
	“incur”
	 	 	4.09	 
	“Legal Defeasance”
	 	 	8.02	 
	“Offer Amount”
	 	 	3.09	 
	“Offer Period”
	 	 	3.09	 
	“Paying Agent”
	 	 	2.03	 
	“Permitted Debt”
	 	 	4.09	 
	“Payment Blockage Notice”
	 	 	10.03	 
	“Payment Default”
	 	 	6.01	 
	“Purchase Date”
	 	 	3.09	 
	“Redemption Date”
	 	 	3.07	 
	“Registrar”
	 	 	2.03	 
	“Restricted Payments”
	 	 	4.07	 







Section 1.03 Incorporation by Reference of Trust Indenture Act.



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



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



     “indenture securities” means the Notes;



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



     “indenture to be qualified” means this Indenture;



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



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



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



Section 1.04 Rules of Construction.



     Unless the context otherwise requires:




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




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




     (3) “or” is not exclusive;




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




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



23









 






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




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



ARTICLE 2.

THE NOTES




Section 2.01 Form and Dating.




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



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



     (b) Global Notes. Notes issued in global form will be substantially in
the form of Exhibit A hereto (including the Global Note Legend thereon and the
“Schedule of Exchanges of Interests in the Global Note” attached thereto).
Notes issued in definitive form will be substantially in the form of Exhibit A
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 will 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.



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



24









 





     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
or office as Registrar or Paying Agent, the Trustee shall act as such. The
Company or any of its Subsidiaries may act as Paying Agent or Registrar.



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



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



Section 2.04 Paying Agent to Hold Money in Trust.




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



25









 





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 an Event of Default with
respect to the Notes and any Holder has requested Definitive Notes.



     Upon the occurrence of either of the preceding events in (1), (2) or (3)
above, Definitive Notes shall be issued in such names as the Depositary shall
instruct the Trustee. Global Notes also may be exchanged or replaced, in whole
or in part, as provided in Sections 2.07 and 2.10 hereof. Every Note
authenticated and delivered in exchange for, or in lieu of, a Global Note or
any portion thereof, pursuant to this Section 2.06 or Section 2.07 or 2.10
hereof, shall be authenticated and delivered in the form of, and shall be, a
Global Note. A Global Note may not be exchanged for another Note other than as
provided in this Section 2.06(a); however, beneficial interests in a Global
Note may be transferred and exchanged as provided in Section 2.06(b), (c) or
(f) hereof.



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




     (1) Transfer of Beneficial Interests in the Same Global Note.
Beneficial interests in any Restricted Global Note may be transferred to
Persons who take delivery thereof in the form of a beneficial interest in
the same Restricted Global Note in accordance with the transfer
restrictions set forth in the Private Placement Legend; provided,
however, that prior to the expiration of the Restricted Period, transfers
of beneficial interests in the Regulation S Global Note may not be made
to a U.S. Person or for the account or benefit of a U.S. Person (other
than an Initial Purchaser). Beneficial interests in any Unrestricted
Global Note may be transferred to Persons who take delivery thereof in
the form of a beneficial interest in an Unrestricted Global Note. No
written orders or instructions shall be required to be delivered to the
Registrar to effect the transfers described in this Section 2.06(b)(1).




     (2) All Other Transfers and Exchanges of Beneficial Interests in
Global Notes. In connection with all transfers and exchanges of
beneficial interests that are not subject to Section 2.06(b)(1) hereof,
the transferor of such beneficial interest must deliver to the Registrar
either:




     (A) both:




     (i) a written order from a Participant or an Indirect
Participant given to the Depositary in accordance with the
Applicable Procedures directing the



26









 






Depositary to credit or cause to be credited a
beneficial interest in another Global Note in an amount equal
to the beneficial interest to be transferred or exchanged;
and




     (ii) instructions given in accordance with the
Applicable Procedures containing information regarding the
Participant account to be credited with such increase; or




     (B) both:




     (i) a written order from a Participant or an Indirect
Participant given to the Depositary in accordance with the
Applicable Procedures directing the Depositary to cause to be
issued a Definitive Note in an amount equal to the beneficial
interest to be transferred or exchanged; and




     (ii) instructions given by the Depositary to the
Registrar containing information regarding the Person in
whose name such Definitive Note shall be registered to effect
the transfer or exchange referred to in (1) above.



Upon consummation of an Exchange Offer by the Company in accordance with
Section 2.06(f) hereof, the requirements of this Section 2.06(b)(2) shall be
deemed to have been satisfied upon receipt by the Registrar of the instructions
contained in the Letter of Transmittal delivered by the Holder of such
beneficial interests in the Restricted Global Notes. Upon satisfaction of all
of the requirements for transfer or exchange of beneficial interests in Global
Notes contained in this Indenture and the Notes or otherwise applicable under
the Securities Act, the Trustee shall adjust the principal amount of the
relevant Global Note(s) pursuant to Section 2.06(h) hereof.




     (3) Transfer of Beneficial Interests to Another Restricted Global
Note. A beneficial interest in any Restricted Global Note may be
transferred to a Person who takes delivery thereof in the form of a
beneficial interest in another Restricted Global Note if the transfer
complies with the requirements of Section 2.06(b)(2) hereof and the
Registrar receives the following:




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




     (B) if the transferee will take delivery in the form of a
beneficial interest in the Regulation S Global Note, then the
transferor must deliver a certificate in the form of Exhibit B
hereto, including the certifications in item (2) thereof; and




     (C) if the transferee will take delivery in the form of a
beneficial interest in the IAI Global Note, then the transferor
must deliver a certificate in the form of Exhibit B hereto,
including the certifications, certificates and Opinion of Counsel
required by item (3) thereof, if applicable.




     (4) Transfer and Exchange of Beneficial Interests in a Restricted
Global Note for Beneficial Interests in an Unrestricted Global Note. A
beneficial interest in any Restricted Global Note may be exchanged by any
holder thereof for a beneficial interest in an Unrestricted Global Note
or transferred to a Person who takes delivery thereof in the form of a
beneficial interest in an Unrestricted Global Note if the exchange or
transfer complies with the requirements of Section 2.06(b)(2) above and:



27









 






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




     (B) such transfer is effected pursuant to the Shelf
Registration Statement in accordance with the Registration Rights
Agreement;




     (C) such transfer is effected by a Broker-Dealer pursuant to
the Exchange Offer Registration Statement in accordance with the
Registration Rights Agreement; or




     (D) the Registrar receives the following:




     (i) if the holder of such beneficial interest in a
Restricted Global Note proposes to exchange such beneficial
interest for a beneficial interest in an Unrestricted Global
Note, a certificate from such holder in the form of Exhibit C
hereto, including the certifications in item (1)(a) thereof;
or




     (ii) if the holder of such beneficial interest in a
Restricted Global Note proposes to transfer such beneficial
interest to a Person who shall take delivery thereof in the
form of a beneficial interest in an Unrestricted Global Note,
a certificate from such holder in the form of Exhibit B
hereto, including the certifications in item (4) thereof;




and, in each such case set forth in this subparagraph (D), if the
Registrar so requests or if the Applicable Procedures so require,
an Opinion of Counsel in form reasonably acceptable to the
Registrar to the effect that such exchange or transfer is in
compliance with the Securities Act and that the restrictions on
transfer contained herein and in the Private Placement Legend are
no longer required under the Securities Act.



     If any such transfer is effected pursuant to subparagraph (B) or (D) above
at a time when an Unrestricted Global Note has not yet been issued, the Company
shall issue and, upon receipt of an Authentication Order in accordance with
Section 2.02 hereof, the Trustee shall authenticate one or more Unrestricted
Global Notes in an aggregate principal amount equal to the aggregate principal
amount of beneficial interests transferred pursuant to subparagraph (B) or (D)
above.



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



     (c) Transfer or Exchange of Beneficial Interests for Definitive Notes.




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




     (A) if the holder of such beneficial interest in a Restricted
Global Note proposes to exchange such beneficial interest for a
Restricted Definitive Note, a certificate from



28









 






such holder in the form of Exhibit C hereto, including the
certifications in item (2)(a) thereof;




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




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




     (D) if such beneficial interest is being transferred pursuant
to an exemption from the registration requirements of the
Securities Act in accordance with Rule 144, a certificate to the
effect set forth in Exhibit B hereto, including the certifications
in item (3)(a) thereof;




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




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




     (G) if such beneficial interest is being transferred pursuant
to an effective registration statement under the Securities Act, a
certificate to the effect set forth in Exhibit B hereto, including
the certifications in item (3)(c) thereof,



the Trustee shall cause the aggregate principal amount of the applicable Global
Note to be reduced accordingly pursuant to Section 2.06(h) hereof, and the
Company shall execute and the Trustee shall authenticate and deliver to the
Person designated in the instructions a Definitive Note in the appropriate
principal amount. Any Definitive Note issued in exchange for a beneficial
interest in a Restricted Global Note pursuant to this Section 2.06(c) shall be
registered in such name or names and in such authorized denomination or
denominations as the holder of such beneficial interest shall instruct the
Registrar through instructions from the Depositary and the Participant or
Indirect Participant. The Trustee shall deliver such Definitive Notes to the
Persons in whose names such Notes are so registered. Any Definitive Note
issued in exchange for a beneficial interest in a Restricted Global Note
pursuant to this Section 2.06(c)(1) shall bear the Private Placement Legend and
shall be subject to all restrictions on transfer contained therein.




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




     (A) such exchange or transfer is effected pursuant to the
Exchange Offer in accordance with the Registration Rights Agreement
and the holder of such beneficial interest, in the case of an
exchange, or the transferee, in the case of a transfer, certifies
in the applicable Letter of Transmittal that it is not (i) a
Broker-Dealer, (ii) a Person



29









 






participating in the distribution of the Exchange Notes or
(iii) a Person who is an affiliate (as defined in Rule 144) of the
Company;




     (B) such transfer is effected pursuant to the Shelf
Registration Statement in accordance with the Registration Rights
Agreement;




     (C) such transfer is effected by a Broker-Dealer pursuant to
the Exchange Offer Registration Statement in accordance with the
Registration Rights Agreement; or




     (D) the Registrar receives the following:




     (i) if the holder of such beneficial interest in a
Restricted Global Note proposes to exchange such beneficial
interest for an Unrestricted Definitive Note, a certificate
from such holder in the form of Exhibit C hereto, including
the certifications in item (1)(b) thereof; or




     (ii) if the holder of such beneficial interest in a
Restricted Global Note proposes to transfer such beneficial
interest to a Person who shall take delivery thereof in the
form of an Unrestricted Definitive Note, a certificate from
such holder in the form of Exhibit B hereto, including the
certifications in item (4) thereof;




and, in each such case set forth in this subparagraph (D), if the
Registrar so requests or if the Applicable Procedures so require,
an Opinion of Counsel in form reasonably acceptable to the
Registrar to the effect that such exchange or transfer is in
compliance with the Securities Act and that the restrictions on
transfer contained herein and in the Private Placement Legend are
no longer required under the Securities Act.




     (3) Beneficial Interests in Unrestricted Global Notes to
Unrestricted Definitive Notes. If any holder of a beneficial interest in
an Unrestricted Global Note proposes to exchange such beneficial interest
for a Definitive Note or to transfer such beneficial interest to a Person
who takes delivery thereof in the form of a Definitive Note, then, upon
satisfaction of the conditions set forth in Section 2.06(b)(2) hereof,
the Trustee will cause the aggregate principal amount of the applicable
Global Note to be reduced accordingly pursuant to Section 2.06(h) hereof,
and the Company will execute and the Trustee will authenticate and
deliver to the Person designated in the instructions a Definitive Note in
the appropriate principal amount. Any Definitive Note issued in exchange
for a beneficial interest pursuant to this Section 2.06(c)(3) will be
registered in such name or names and in such authorized denomination or
denominations as the holder of such beneficial interest requests through
instructions to the Registrar from or through the Depositary and the
Participant or Indirect Participant. The Trustee will deliver such
Definitive Notes to the Persons in whose names such Notes are so
registered. Any Definitive Note issued in exchange for a beneficial
interest pursuant to this Section 2.06(c)(3) will not bear the Private
Placement Legend.



     (d) Transfer and Exchange of Definitive Notes for Beneficial Interests.




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



30









 






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




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




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




     (D) if such Restricted Definitive Note is being transferred
pursuant to an exemption from the registration requirements of the
Securities Act in accordance with Rule 144, a certificate to the
effect set forth in Exhibit B hereto, including the certifications
in item (3)(a) thereof;




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




     (F) if such Restricted Definitive Note is being transferred to
the Company or any of its Subsidiaries, a certificate to the effect
set forth in Exhibit B hereto, including the certifications in item
(3)(b) thereof; or




     (G) if such Restricted Definitive Note is being transferred
pursuant to an effective registration statement under the
Securities Act, a certificate to the effect set forth in Exhibit B
hereto, including the certifications in item (3)(c) thereof,




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




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




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




     (B) such transfer is effected pursuant to the Shelf
Registration Statement in accordance with the Registration Rights
Agreement;



31









 






     (C) such transfer is effected by a Broker-Dealer pursuant to
the Exchange Offer Registration Statement in accordance with the
Registration Rights Agreement; or




     (D) the Registrar receives the following:




     (i) if the Holder of such Definitive Notes proposes to
exchange such Notes for a beneficial interest in the
Unrestricted Global Note, a certificate from such Holder in
the form of Exhibit C hereto, including the certifications in
item (1)(c) thereof; or




     (ii) if the Holder of such Definitive Notes proposes to
transfer such Notes to a Person who shall take delivery
thereof in the form of a beneficial interest in the
Unrestricted Global Note, a certificate from such Holder in
the form of Exhibit B hereto, including the certifications in
item (4) thereof;




and, in each such case set forth in this subparagraph (D), if the
Registrar so requests or if the Applicable Procedures so require,
an Opinion of Counsel in form reasonably acceptable to the
Registrar to the effect that such exchange or transfer is in
compliance with the Securities Act and that the restrictions on
transfer contained herein and in the Private Placement Legend are
no longer required under the Securities Act.




     Upon satisfaction of the conditions of any of the subparagraphs in
this Section 2.06(d)(2), the Trustee will cancel the Definitive Notes and
increase or cause to be increased the aggregate principal amount of the
Unrestricted Global Note.




     (3) Unrestricted Definitive Notes to Beneficial Interests in
Unrestricted Global Notes. A Holder of an Unrestricted Definitive Note
may exchange such Note for a beneficial interest in an Unrestricted
Global Note or transfer such Definitive Notes to a Person who takes
delivery thereof in the form of a beneficial interest in an Unrestricted
Global Note at any time. Upon receipt of a request for such an exchange
or transfer, the Trustee will cancel the applicable Unrestricted
Definitive Note and increase or cause to be increased the aggregate
principal amount of one of the Unrestricted Global Notes.




     If any such exchange or transfer from a Definitive Note to a
beneficial interest is effected pursuant to subparagraphs (2)(B), (2)(D)
or (3) above at a time when an Unrestricted Global Note has not yet been
issued, the Company will issue and, upon receipt of an Authentication
Order in accordance with Section 2.02 hereof, the Trustee will
authenticate one or more Unrestricted Global Notes in an aggregate
principal amount equal to the principal amount of Definitive Notes so
transferred.



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



32









 






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




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




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




     (C) if the transfer will be made pursuant to any other
exemption from the registration requirements of the Securities Act,
then the transferor must deliver a certificate in the form of
Exhibit B hereto, including the certifications, certificates and
Opinion of Counsel required by item (3) thereof, if applicable.




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




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




     (B) any such transfer is effected pursuant to the Shelf
Registration Statement in accordance with the Registration Rights
Agreement;




     (C) any such transfer is effected by a Broker-Dealer pursuant
to the Exchange Offer Registration Statement in accordance with the
Registration Rights Agreement; or




     (D) the Registrar receives the following:




     (i) if the Holder of such Restricted Definitive Notes
proposes to exchange such Notes for an Unrestricted
Definitive Note, a certificate from such Holder in the form
of Exhibit C hereto, including the certifications in item
(1)(d) thereof; or




     (ii) if the Holder of such Restricted Definitive Notes
proposes to transfer such Notes to a Person who shall take
delivery thereof in the form of an Unrestricted Definitive
Note, a certificate from such Holder in the form of Exhibit B
hereto, including the certifications in item (4) thereof;




and, in each such case set forth in this subparagraph (D), if the
Registrar so requests, an Opinion of Counsel in form reasonably
acceptable to the Registrar to the effect that such exchange or
transfer is in compliance with the Securities Act and that the
restrictions on



33









 






transfer contained herein and in the Private Placement Legend are
no longer required under the Securities Act.




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



     (f) Exchange Offer. Upon the occurrence of the Exchange Offer in
accordance with the Registration Rights Agreement, the Company will issue and,
upon receipt of an Authentication Order in accordance with Section 2.02 hereof,
the Trustee will authenticate:




     (1) one or more Unrestricted Global Notes in an aggregate principal
amount equal to the principal amount of the beneficial interests in the
Restricted Global Notes accepted for exchange in the Exchange Offer by
Persons that certify in the applicable Letters of Transmittal that (A)
they are not Broker-Dealers, (B) they are not participating in a
distribution of the Exchange Notes and (C) they are not affiliates (as
defined in Rule 144) of the Company; and




     (2) Unrestricted Definitive Notes in an aggregate principal amount
equal to the principal amount of the Restricted Definitive Notes accepted
for exchange in the Exchange Offer by Persons that certify in the
applicable Letters of Transmittal that (A) they are not Broker-Dealers,
(B) they are not participating in a distribution of the Exchange Notes
and (C) they are not affiliates (as defined in Rule 144) of the Company.



     Concurrently with the issuance of such Notes, the Trustee will cause the
aggregate principal amount of the applicable Restricted Global Notes to be
reduced accordingly, and the Company will execute and the Trustee will
authenticate and deliver to the Persons designated by the Holders of Definitive
Notes so accepted Unrestricted Definitive Notes in the appropriate principal
amount.



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




     (1) Private Placement Legend.




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



“THE NOTES EVIDENCED HEREBY HAVE NOT BEEN REGISTERED UNDER THE UNITED STATES
SECURITIES ACT OF 1933 (THE “SECURITIES ACT”) AND MAY NOT BE OFFERED, SOLD,
PLEDGED OR OTHERWISE TRANSFERRED EXCEPT (A) (1) TO A PERSON WHO THE SELLER
REASONABLY BELIEVES IS A QUALIFIED INSTITUTIONAL BUYER WITHIN THE MEANING OF
RULE 144A UNDER THE SECURITIES ACT PURCHASING FOR ITS OWN ACCOUNT OR FOR THE
ACCOUNT OF A QUALIFIED INSTITUTIONAL BUYER IN A TRANSACTION MEETING THE
REQUIREMENTS OF RULE 144A, (2) IN AN OFFSHORE TRANSACTION COMPLYING WITH RULE
903 OR RULE 904 OF REGULATION S UNDER THE SECURITIES ACT, (3) PURSUANT TO AN
EXEMPTION FROM REGISTRATION UNDER THE SECURITIES ACT PROVIDED BY RULE 144
THEREUNDER (IF AVAILABLE), (4) TO AN INSTITUTIONAL ACCREDITED INVESTOR IN A
TRANSACTION EXEMPT FROM THE



34









 








REGISTRATION REQUIREMENTS OF THE SECURITIES ACT OR (5) PURSUANT TO AN EFFECTIVE
REGISTRATION STATEMENT UNDER THE SECURITIES ACT AND (B) IN ACCORDANCE WITH ALL
APPLICABLE SECURITIES LAWS OF THE STATES OF THE UNITED STATES AND OTHER
JURISDICTIONS.”




     (B) Notwithstanding the foregoing, any Global Note or
Definitive Note issued pursuant to subparagraphs (b)(4), (c)(2),
(c)(3), (d)(2), (d)(3), (e)(2), (e)(3) or (f) of this Section 2.06
(and all Notes issued in exchange therefor or substitution thereof)
will not bear the Private Placement Legend.




     (2) Global Note Legend. Each Global Note will bear a legend in
substantially the following form (or in such other form as required by
the Depositary):



“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
THE COMPANY.



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.”



     (h) Cancellation and/or Adjustment of Global Notes. At such time as all
beneficial interests in a particular Global Note have been exchanged for
Definitive Notes or a particular Global Note has been redeemed, repurchased or
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



35









 





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.



     (i) 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, 4.14 and 9.05 hereof).




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




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




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




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




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




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




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




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




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



36









 





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 in accordance with
the provisions of Section 2.02 hereof. If required by the Trustee or the
Company, an indemnity bond must be supplied by the Holder requesting the
replacement Note 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 such Holder for its expenses in replacing a Note.



     Every replacement Note is an 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 (except for the Note being
replaced).



Section 2.08 Outstanding Notes.




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



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



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



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



Section 2.09 Treasury Notes.




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



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



37









 





unreasonable delay, the Company will prepare and the Trustee will
authenticate definitive Notes in exchange for temporary Notes.



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



Section 2.11 Cancellation.



     The Company at any time may deliver Notes to the Trustee for cancellation.
The Registrar and Paying Agent will forward to the Trustee any Notes
surrendered to them for registration of transfer, exchange or payment. The
Trustee and no one else will cancel all Notes surrendered for registration of
transfer, exchange, payment, replacement or cancellation and will destroy
canceled Notes (subject to the record retention requirement of the Exchange
Act). Certification of the destruction 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.



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 unless:



38









 






     (1) the Notes are listed on any national securities exchange, in
which case the Trustee will comply with the requirements of the principal
national securities exchange on which the Notes are listed; or




     (2) otherwise required by law.



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



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



Section 3.03 Notice of Redemption.




     Subject to the provisions of Section 3.09 hereof, at least 30 days but not
more than 60 days before a redemption date, the Company will mail or cause to
be mailed, by first class mail, a notice of redemption to each Holder whose
Notes are to be redeemed at its registered address, except that redemption
notices may be mailed more than 60 days prior to a redemption date if the
notice is issued in connection with a defeasance of the Notes or a satisfaction
and discharge of this Indenture pursuant to Articles 8 or 12 hereof.



     The notice will identify the Notes 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



39









 






     (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 if the Company has delivered to the
Trustee, at least 45 days prior to the redemption date (or such lesser time as
the Trustee may agree to), an Officers’ Certificate requesting that the Trustee
give such notice and setting forth the information to be stated in such notice
as provided in the preceding paragraph.



Section 3.04 Effect of Notice of Redemption.




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



Section 3.05 Deposit of Redemption or Purchase Price.



     On or prior to the redemption or purchase date, the Company will deposit
with the Trustee or with the Paying Agent money sufficient to pay the
redemption or purchase price of and accrued interest and Special Interest, if
any, 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 and Special
Interest, if any, on, all Notes to be redeemed or purchased.



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



Section 3.06 Notes Redeemed or Purchased in Part.



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



Section 3.07 Optional Redemption.




     (a) At any time prior to May 15, 2007, the Company may on any one or more
occasions redeem up to 35% of the aggregate principal amount of Notes
originally issued under this Indenture (including Additional Notes) at a
redemption price of 106.875% of the principal amount thereof, plus accrued and
unpaid interest and Special Interest, if any, to the redemption date, with the
net cash proceeds of one or more Equity Offerings; provided that:



40









 






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




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



     (b) At any time prior to May 15, 2008, the Company may also redeem all or
a part of the Notes upon not less than 30 nor more than 60 days prior notice
mailed by first-class mail to each Holder’s registered address, at a redemption
price equal to 100% of the principal amount of Notes redeemed plus the
Applicable Premium as of, and accrued and unpaid interest and Special Interest,
if any, to the applicable date of redemption (the “Redemption Date”), subject
to the rights of Holders on the relevant record date to receive interest due on
the relevant interest payment date.



     (c) Except pursuant to the preceding paragraphs, the Notes will not be
redeemable at the Company’s option prior to May 15, 2008.



     (d) On or after May 15, 2008, the Company may redeem all or a part of the
Notes upon not less than 30 nor more than 60 days’ notice, at the redemption
prices (expressed as percentages of principal amount) set forth below plus
accrued and unpaid interest and Special Interest, if any, on the Notes redeemed
to the applicable redemption date, if redeemed during the twelve-month period
beginning on May 15 of the years indicated below:



	 	 	 	 	 
	Year
	 	Percentage

	2008
	 	 	103.438	%
	2009
	 	 	101.719	%
	2010 and thereafter
	 	 	100.000	%







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



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



Section 3.08 Mandatory Redemption.




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



Section 3.09 Offer to Purchase by Application of Excess Proceeds.



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



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



41









 





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 and
Special Interest, if any, will be paid to the Person in whose name a Note is
registered at the close of business on such record date, and no additional
interest will be payable to Holders who tender Notes pursuant to the Asset Sale
Offer.



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




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




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




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




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




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




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




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




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




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



42









 





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



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



ARTICLE 4.

COVENANTS




Section 4.01 Payment of Notes.




     The Company will pay or cause to be paid the principal of, premium, if
any, and interest and Special Interest, if any, on, the Notes on the dates and
in the manner provided in the Notes. Principal, premium, if any, and interest
and Special Interest, if any 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 all
Special Interest, if any, in the same manner on the dates and in the amounts
set forth in the Registration Rights Agreement.



     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 and
Special Interest (without regard to any applicable grace period) at the same
rate to the extent lawful.



Section 4.02 Maintenance of Office or Agency.



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



     The Company may also from time to time designate one or more other offices
or agencies where the Notes may be presented or surrendered for any or all such
purposes and may from time to time rescind



43









 





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 SEC, so long as any Notes are
outstanding, ECC will furnish to the Holders of Notes or file electronically
with the SEC through its electronic data gathering, analysis and retrieval
system or any successor system, 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 ECC were required to file
such Forms, including a “Management’s Discussion and Analysis of
Financial Condition and Results of Operations” and, with respect to the
annual information only, a report on the annual financial statements by
ECC’s certified independent accountants; and




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



     If, at any time ECC is no longer subject to the periodic reporting
requirements of the Exchange Act for any reason, ECC will nevertheless continue
filing the reports specified in subparagraphs (1) and (2) directly above with
the SEC within the time periods specified above unless the SEC will not accept
such a filing. If, notwithstanding the foregoing, the SEC will not accept ECC’s
filings for any reason, ECC will post the reports referred to in subparagraphs
(1) and (2) directly above on its website within the time periods that would
apply if ECC were required to file those reports with the SEC.



     (b) In addition, ECC, the Company and the Guarantors agree that, for so
long as any Notes remain outstanding, if at any time ECC is not required to
file with the SEC the reports required by Sections 4.03(a)(1) and (2), ECC 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 shall deliver to the Trustee after the end of each fiscal
year, within the time periods specified in the SEC’s rules and regulations for
filing annual reports on Form 10-K, an Officers’ Certificate stating that a
review of the activities of the Company and its Subsidiaries during the
preceding fiscal year has been made under the supervision of the signing
Officers with a view to determining whether the Company has kept, observed,
performed and fulfilled its obligations under this Indenture, and further
stating, as to each such Officer signing such certificate, that to the best of
his or her knowledge the Company has kept, observed, performed and fulfilled
each and every covenant contained in this Indenture and is not in default in
the performance or observance of any of the terms, provisions and conditions of
this Indenture (or, if a Default or Event of Default has occurred, describing
all such Defaults or Events of Default of which he or she may have knowledge
and what action the Company is taking or proposes to take with respect thereto)
and that to the best of his or her knowledge no event has occurred and remains
in existence by reason of which payments on account of the principal of or
interest, if any, on the Notes is



44









 





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, within 30 days of any Officer becoming aware of any Default or
Event of Default, an Officers’ Certificate specifying such Default or Event of
Default and what action the Company is taking or proposes to take with respect
thereto.



Section 4.05 Taxes.




     The Company will pay, and will cause each of its Restricted Subsidiaries
to pay, prior to delinquency, all material taxes, assessments, and governmental
levies except such as are contested in good faith and by appropriate
proceedings or where the failure to effect such payment would not reasonably be
expected, individually or in the aggregate, to have a material adverse effect
on the general affairs, financial position or results of operations of ECC, the
Company and the Subsidiaries taken as a whole.



Section 4.06 Stay, Extension and Usury Laws.



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



Section 4.07 Restricted Payments.



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




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



45









 






     (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 of the Company
or any direct or indirect parent of the Company or any Restricted
Subsidiary of the Company (other than any such Equity Interests owned by
the Company or any Restricted Subsidiary of the Company or any Permitted
Investment described pursuant to clause (1) or (3) of the definition of
“Permitted Investments”);




     (3) make any payment on or with respect to, or purchase, redeem,
defease or otherwise acquire or retire for value any Indebtedness that is
subordinated in right of payment to the Notes or the Note Guarantees
(other than the Notes or the Note Guarantees), except a payment of
interest or principal at the Stated Maturity thereof; or




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




unless, at the time of and after giving effect to such Restricted Payment:




     (1) no Default or Event of Default shall have occurred and be
continuing or would occur as a consequence thereof;




     (2) the Company would, at the time of such Restricted Payment and
after giving pro forma effect thereto as if such Restricted Payment had
been made at the beginning of the applicable four-quarter period, have
been permitted to incur at least $1.00 of additional Indebtedness
pursuant to the Leverage Ratio test set forth in Section 4.09(a) hereof;
and




     (3) such Restricted Payment, together with the aggregate amount of
all other Restricted Payments made by the Company and its Restricted
Subsidiaries after the date of this Indenture (excluding Restricted
Payments permitted by Sections 4.07(b)(2), (3), (4) (to the extent that
the payment of any dividend by a Restricted Subsidiary of ECC to the
holders of its common Equity Interests on a pro rata basis is paid to the
Company, ECC or another Restricted Subsidiary), (6), (8), (10), or (11)),
is less than the sum, without duplication, of:




     (a) (i) the aggregate Consolidated EBITDA of the Company for
the period (taken as one accounting period) from the beginning of
the first fiscal quarter commencing after February 12, 1999 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 (or, in the event aggregate Consolidated EBITDA
for such period is a deficit, then minus such deficit) less (ii)
1.4 times the aggregate Cash Interest Expense of the Company for
the same period; plus




     (b) the aggregate net cash proceeds and the fair market value,
determined in good faith by the Board of Directors, of any non-cash
consideration, in each case, received by the Company (or in the
case of Equity Interests of ECC issued for the benefit of the
Company and/or Restricted Subsidiaries) since February 12, 1999 as
a contribution to its common equity capital or from the issue or
sale of Equity Interests of ECC or 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 ECC, the Company or any Restricted Subsidiary 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



46









 






     (c) to the extent that any Restricted Investment is sold for
cash or otherwise liquidated or repaid for cash, the cash return of
capital with respect to such Restricted Investment (less the cost
of disposition, if any); plus




     (d) if any Unrestricted Subsidiary (i) is redesignated as a
Restricted Subsidiary, the fair market value of such redesignated
Subsidiary (as determined in good faith by the Board of Directors)
as of the date of its redesignation or (ii) pays any cash dividends
or cash distributions to the Company or any of its Restricted
Subsidiaries, 100% of any such cash dividends or cash distributions
made after the date of this Indenture; plus




     (e) without, duplication of any of the foregoing, the
aggregate amount returned in cash on or with respect to Restricted
Investments made subsequent to the Issue Date, whether through
interest payments, principal payments, dividends or other
distributions or payments.



     (b) The provisions of Section 4.07(a) hereof will not prohibit:




     (1) the payment of any dividend within 60 days after the date of
declaration thereof, if at said date of declaration such payment would
have complied with the provisions of this Indenture;




     (2) the redemption, repurchase, retirement, defeasance or other
acquisition of any subordinated Indebtedness of the Company or any
Guarantor or of any Equity Interests of ECC, the Company or any
Restricted Subsidiary in exchange for, or out of the proceeds of the
substantially concurrent sale (other than to a Subsidiary of ECC) of,
Equity Interests of the Company or ECC (other than Disqualified Stock);
provided that the amount of any such net cash proceeds that are utilized
for any such redemption, repurchase, retirement, defeasance or other
acquisition shall be excluded from Section 4.07(a)(3)(b);




     (3) the defeasance, redemption, repurchase or other acquisition of
subordinated Indebtedness of the Company or any Guarantor in exchange for
or out of the net cash proceeds from an incurrence of Permitted
Refinancing Indebtedness;




     (4) the payment of any dividend by a Restricted Subsidiary of ECC to
the holders of its common Equity Interests on a pro rata basis;




     (5) the repurchase, redemption or other acquisition or retirement
for value of any Equity Interests of ECC or any Subsidiary of ECC (or to
the extent such payment is required to be made by ECC, a dividend to ECC
to fund such payment) held by any current or former member of ECCs’ (or
any of its Subsidiaries’) management pursuant to any management equity
subscription agreement or stock option agreement in effect as of the date
of this Indenture; provided that the aggregate price paid for all such
repurchased, redeemed, acquired or retired Equity Interests shall not
exceed $5.0 million in any twelve-month period;




     (6) the repurchase of Equity Interests of the Company or ECC deemed
to occur upon the exercise of stock options if such Equity Interests
represent a portion of the exercise price of such options;




     (7) the repurchase, redemption or other acquisition or retirement
for value of any Equity Interests of ECC (other than those described in
clause (5) above) (or to the extent such payment is required to be made
by ECC, a dividend to ECC to fund such payment) in an amount not to
exceed $50.0 million in the aggregate;



47









 






     (8) dividends to ECC in an amount equal to the regularly scheduled
dividends on the outstanding ECC Preferred Stock and dividends to ECC to
pay regularly scheduled interest or dividends on Indebtedness or
preferred stock of ECC issued in exchange for or to refinance such ECC
Preferred Stock;




     (9) Permitted Payments to Parent;




     (10) payments and transactions taking place on the closing of the
Offering as described in the “Use of Proceeds” section of the Company’s
Offering Circular dated April 27, 2004, relating to the initial offering
of the Notes, including, without limitation, the repurchase of the
121⁄2% Notes pursuant to the tender offer by ECC for such notes and any
payment made to ECC to fund such repurchase and any expenses and premiums
incurred in connection therewith;




     (11) payments to ECC to fund the repurchase or redemption of any
outstanding 121⁄2% Notes and any expenses and premiums incurred in
connection therewith; and




     (12) any other Restricted Payment which, together with all other
Restricted Payments made pursuant to this clause (12) since the date of
this Indenture, does not exceed $20.0 million.



     (c) In determining whether any payment is permitted by Section 4.07(b)
hereof, the Company may allocate or reallocate, among clauses (1) through (12)
of Section 4.07(b) hereof or among such clauses and Section 4.07(a) hereof, all
or any portion of such payment and all or any portion of any payment previously
allocated; provided that, after giving effect to such allocation or
reallocation, all such payments (or allocated portions of such payments) would
be permitted under the various provisions of Section 4.07(b) hereof.



     (d) The amount of all Restricted Payments (other than cash) shall 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 shall be determined by the Board of Directors whose
resolution with respect thereto shall be delivered to the Trustee.



     (e) In making the computations required by this Section 4.07:




     (1) the Company may use audited financial statements for the
portions of the relevant period for which audited financial statements
are available on the date of determination and unaudited financial
statements and other current financial data based on the books and
records of the Company for the remaining portion of such period; and




     (2) the Company may rely in good faith on the financial statements
and other financial data derived from its books and records that are
available on the date of determination.



     (f) If the Company makes a Restricted Payment that, at the time of the
making of such Restricted Payment, would in the good faith determination of the
Company be permitted under the requirements of this Indenture, such Restricted
Payment will be deemed to have been made in compliance with this Indenture
notwithstanding any subsequent adjustments made in good faith to the Company’s
financial statements for any period which adjustments affect any of the
financial data used to make the calculations with respect to such Restricted
Payment.



48









 





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 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 the Company’s 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 the
Company’s Restricted Subsidiaries;




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




     (3) sell, lease or transfer any of its properties or assets to the
Company or any of the Company’s Restricted Subsidiaries.



     (b) However, the 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 Credit Facilities
as in effect on the date of this Indenture and any amendments,
modifications, restatements, renewals, increases, supplements,
refundings, replacements or refinancings thereof, provided that such
amendments, modifications, restatements, renewals, increases,
supplements, refundings, replacements or refinancings are no more
restrictive, taken as a whole, with respect to such dividend and other
payment restrictions than those contained in such Existing Indebtedness
or in such Credit Facility, in each case, as in effect on the date of
this Indenture;




     (2) encumbrances and restrictions applicable to any Unrestricted
Subsidiary, as the same are in effect as of the date on which such
Subsidiary becomes a Restricted Subsidiary, and as the same may be
amended, modified, restated, renewed, increased, supplemented, refunded,
replaced or refinanced; provided that such amendments, modifications,
restatements, renewals, increases, supplements, refundings, replacement
or refinancings are no more restrictive, taken as a whole, with respect
to such dividend and other payment restrictions than those contained in
the applicable series of Indebtedness of such Subsidiary as in effect on
the date on which such Subsidiary becomes a Restricted Subsidiary;




     (3) any Indebtedness (incurred in compliance with Section 4.09
hereof) or any agreement pursuant to which such Indebtedness is issued if
the encumbrance or restriction applies only in the event of a payment
default or default with respect to a financial covenant contained in such
Indebtedness or agreement and such encumbrance or restriction is not
materially more disadvantageous to the Holders of the Notes than is
customary in comparable financings (as determined by the Company) or if
such encumbrance or restriction is no more restrictive than those in the
Credit Agreement or this Indenture;




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




     (5) applicable law;




     (6) 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



49









 






     to the extent such Indebtedness or Capital Stock was incurred in
connection with or in contemplation of such acquisition), which
encumbrance or restriction is not applicable to any Person, or the
properties or assets of any Person, other than the Person, or the
property or assets of the Person, so acquired, provided that, in the case
of Indebtedness, such Indebtedness was permitted by the terms of this
Indenture to be incurred;




     (7) customary non-assignment provisions in leases or licenses
entered into in the ordinary course of business;




     (8) purchase money obligations for property acquired in the ordinary
course of business that impose restrictions on the property so acquired
of the nature described in Section 4.08(a)(3);




     (9) any agreement for the sale or other disposition of a Restricted
Subsidiary that restricts distributions by such Restricted Subsidiary
pending its sale or other disposition;




     (10) Permitted Refinancing Indebtedness, provided that the
restrictions contained in the agreements governing such Permitted
Refinancing Indebtedness are no more restrictive, taken as a whole, than
those contained in the agreements governing the Indebtedness being
refinanced;




     (11) Liens permitted to be incurred pursuant to the provisions of
Section 4.12 hereof that limit the right to dispose of the assets subject
to such Liens;




     (12) provisions limiting the disposition or distribution of assets
or property in joint venture agreements, partnership agreements, limited
liability company agreements, asset sale agreements, sale-leaseback
agreements, stock sale agreements and other similar agreements entered
into 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;




     (13) restrictions on cash or other deposits or net worth imposed by
customers, suppliers or landlords under contracts entered into in the
ordinary course of business;




     (14) encumbrances or restrictions on any Indebtedness of Foreign
Subsidiaries incurred in compliance with Section 4.09 hereof or any
agreement pursuant to which such Indebtedness is issued or is secured;
and




     (15) encumbrances or restrictions on security agreements or
mortgages that limit the right of the debtor to dispose of the assets
securing that Indebtedness.



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 and any Restricted Subsidiary may
incur Indebtedness (including Acquired Debt), and the Company may issue
Disqualified Stock, if the Leverage Ratio of the Company for the Reference
Period immediately preceding the date on which such additional Indebtedness is
incurred or such Disqualified Stock is issued would not have been greater than
7.0 to 1 determined on a pro forma basis (after giving pro forma effect to such
incurrence or issuance and to the application of the net proceeds therefrom)
and in accordance with the definition of Leverage Ratio.



50









 





     (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 Restricted Subsidiary of
Indebtedness under any Credit Facilities; provided that the aggregate
principal amount of all Indebtedness of the Company and the Restricted
Subsidiaries outstanding under any Credit Facilities after giving effect
to such incurrence does not exceed an 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 $1.025 billion
less the aggregate amount of all Net Proceeds of Asset Sales required to
be applied by the Company or any of its Restricted Subsidiaries since the
date of this Indenture to repay Indebtedness under the Credit Facilities
pursuant to Section 4.10 hereof;




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




     (3) the incurrence by the Company and the Guarantors of Indebtedness
represented by the Notes issued in the Offering and the related Note
Guarantees and the Exchange Notes and the related Note Guarantees to be
issued pursuant to the Registration Rights Agreement;




     (4) 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 construction or improvement of property, plant or equipment used
in the business of the Company or such Restricted Subsidiary, in an
aggregate principal amount not to exceed $20.0 million at any time
outstanding;




     (5) 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 refund, refinance or replace,
Indebtedness of the Company or any of its Restricted Subsidiaries or
Disqualified Stock of the Company (other than intercompany Indebtedness)
that was permitted by this Indenture to be incurred under Section 4.09(a)
hereof or clauses (2), (3), (4) or (8) of this Section 4.09(b);




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




     (7) the incurrence by the Company or any of its Restricted
Subsidiaries of Hedging Obligations; provided that the agreements
governing such Hedging Obligations do not increase the Indebtedness of
the obligor outstanding at any time other than as a result of
fluctuations in foreign currency exchange rates or interest rates or by
reason of fees, indemnities and compensation payable thereunder;




     (8) the guarantee (or co-issuance) by the Company or any of the
Restricted Subsidiaries of Indebtedness of the Company or a Restricted
Subsidiary of the Company that was permitted to




51









 





be incurred by another provision of this Section 4.09; provided that
if the Indebtedness being guaranteed (or co-issued) is subordinated in
right of payment to or pari passu in right of payment with the Notes,
then the applicable Guarantee (or co-issuance) shall be subordinated in
right of payment or pari passu in right of payment, as applicable, to the
same extent as the Indebtedness guaranteed (or co-issued); and




     (9) 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, not to exceed $50.0
million.



     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 (9) 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. 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 accounting 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; provided, in each such
case, that the amount of any such accrual, accretion or payment is included in
the Cash Interest Expense of the Company to the extent paid in cash.
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.



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 such Asset Sale at least equal to
the fair market value of the assets or Equity Interests issued or sold or
otherwise disposed of;




     (2) such fair market value is determined in good faith by the
Company’s Board of Directors and evidenced by a resolution of the Board
of Directors set forth in an Officers’ Certificate delivered to the
Trustee; and




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




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




     (b) any securities, notes or other obligations received by the
Company or any



52









 





such Restricted Subsidiary from such transferee that are
converted by the Company or such Restricted Subsidiary into cash
within 90 days after such Asset Sale (to the extent of the cash
received in that conversion).



     (b) Within 360 days after the receipt of any Net Proceeds from an Asset
Sale, the Company and any Restricted Subsidiary may apply such Net Proceeds at
its option:




     (1) to repay Senior Debt and any Indebtedness of any Restricted
Subsidiary that is not a Guarantor;




     (2) to acquire all or substantially all of the assets of, or a
majority of the Voting Stock of, another Permitted Business that is owned
by the Company or a Guarantor;




     (3) to make a capital expenditure; or




     (4) to acquire other assets that are used or useful in a Permitted
Business that is owned by the Company or a Guarantor.


Pending the final application of any such Net Proceeds, the Company may
temporarily reduce revolving credit borrowings or other Indebtedness or
otherwise invest such Net Proceeds in any manner that is not prohibited by this
Indenture.




     (c) Notwithstanding Sections 4.10(b) and (c) hereof, the Company and its
Restricted Subsidiaries will be permitted to consummate an Asset Sale without
complying with such Sections to the extent (i) at least 75% of the
consideration for such Asset Sale constitutes Productive Assets, cash, Cash
Equivalents and/or Marketable Securities and (ii) such Asset Sale is for fair
market value (as determined in good faith by the Board of Directors and
certified to in an Officer’s Certificate); provided that any cash consideration
not constituting Productive Assets received by the Company or any of its
Restricted Subsidiaries in connection with any Asset Sale permitted to be
consummated under this Section 4.10(c) shall be subject to the provisions of
Section 4.10(b). In addition, the Company and its Restricted Subsidiaries shall
not be required to comply with this Section 4.10 if the Company or any of its
Restricted Subsidiaries is required to transfer any of its assets into a trust
for FCC regulatory purposes, if such trust then sells or disposes of such
assets or if either the Company or a Restricted Subsidiary of the Company is
ordered by the FCC or a court to transfer any asset, so long as any Net
Proceeds received by the Company and its Restricted Subsidiaries are applied in
accordance with this Section 4.10.



     (d) Any Net Proceeds from Asset Sales that are not applied or invested as
provided in Section 4.10(b) hereof will constitute Excess Proceeds. When the
aggregate amount of Excess Proceeds exceeds $10.0 million, the Company will
make an Asset Sale Offer to all Holders of Notes and all holders of other
Indebtedness that is pari passu with the Notes containing provisions similar to
those set forth in this Indenture with respect to offers to purchase or redeem
with the proceeds of sales of assets to purchase the maximum principal amount
of Notes and such other pari passu Indebtedness that may be purchased out of
the Excess Proceeds. The offer price in any Asset Sale Offer will be equal to
100% of principal amount plus accrued and unpaid interest and Special Interest
thereon, if any, 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 such Excess Proceeds for any purpose not otherwise prohibited by this
Indenture. If the aggregate principal amount of Notes and such other pari passu
Indebtedness tendered into such Asset Sale Offer exceeds the amount of Excess
Proceeds, the Trustee shall select the Notes and such other pari passu
Indebtedness to be purchased on a pro rata basis. Upon completion of each Asset
Sale Offer, the amount of Excess Proceeds shall be reset at zero.



53









 





     (e) 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 such laws and regulations are applicable in connection with each
repurchase of Notes pursuant to an Asset Sale Offer. To the extent that the
provisions of any securities laws or regulations conflict with the provisions
of Section 3.09 hereof or this Section 4.10, 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 4.10 by
virtue of such compliance.



Section 4.11 Transactions with Affiliates.




     (a) The Company will not, and will not permit any of its Restricted
Subsidiaries to, 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 (each, an “Affiliate Transaction”), unless:




     (1) such 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 an unrelated Person; 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 set
forth in an Officers’ Certificate certifying that such Affiliate
Transaction complies with this Section 4.11 and that such Affiliate
Transaction has been approved by a majority of the disinterested
members of the Board of Directors; 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 of such Affiliate Transaction from a financial point of
view 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, indemnification, severance or other agreement or
transactions relating to employee benefits or benefit plans with any
employee, consultant or director of the Company or a Restricted
Subsidiary that is entered into by the Company or any of its Restricted
Subsidiaries in the ordinary course of business;




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




     (3) payment of reasonable directors fees to Persons who are not
otherwise Affiliates of the Company;




     (4) Restricted Payments or Permitted Investments that do not violate
the provisions of this Indenture described in Section 4.07 hereof;




     (5) Permitted Payments to Parent;



54









 






     (6) transactions and payments contemplated by any agreement in
effect on the Issue Date or any amendment thereto in any replacement
agreement therefor, so long as any such amendment or replacement
agreement, taken as a whole, is not more disadvantageous to the Company
or such Restricted Subsidiary as the original agreement as in effect on
the Issue Date;




     (7) loans and advances to employees of the Company or any Restricted
Subsidiary in the ordinary course of business;




     (8) any tax sharing agreement or administrative services agreement
between the Company or any Restricted Subsidiary and any of its
Affiliates approved by a majority of the independent Directors;




     (9) entering into an agreement that provides registration rights to
any shareholder of the Company or ECC or amending any such agreement with
any shareholder of the Company or ECC and the performance of such
agreements;




     (10) any transaction with a joint venture or similar entity which
would constitute an Affiliate Transaction solely because the Company or a
Restricted Subsidiary owns an equity interest in or otherwise controls
such joint venture or similar entity; provided that no Affiliate of the
Company or any of its Subsidiaries other than the Company or a Restricted
Subsidiary shall have a beneficial interest in such joint venture or
similar entity;




     (11) any merger, consolidation or reorganization of the Company with
an Affiliate, solely for the purposes of (a) reorganizing to facilitate
an initial public offering of securities of the Company, ECC or other
holding company, (b) forming a holding company or (c) reincorporating the
Company in a new jurisdiction;




     (12) any transaction with an Affiliate where the only consideration
paid by the Company is Qualified Equity Interests; and




     (13) any agreement entered into in connection with the transfer or
other disposition of any business of the Company and that is to be
performed after the transfer or other disposition and the performance of
such agreement so long as such agreement is approved by a majority of the
disinterested directors of the Company.



Section 4.12 Liens.




     The Company will not and will not permit any of its Restricted
Subsidiaries to, create, incur, assume or otherwise cause or suffer to exist or
become effective any Lien of any kind (other than Permitted Liens) securing
Indebtedness other than Senior Debt upon any of their property or assets, 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 until such time as such obligations are no longer secured by a Lien.



Section 4.13 INTENTIONALLY OMITTED




Section 4.14 Offer to Repurchase Upon Change of Control.




     (a) Upon the occurrence of a Change of Control, the Company will make an
offer (a “Change of Control Offer") to each Holder to repurchase all or any
part (equal to $1,000 or an integral multiple of $1,000) of that Holder’s Notes
at a purchase price in cash equal to 101% of the aggregate principal



55









 




amount of Notes repurchased plus accrued and unpaid interest and Special
Interest, if any, on the Notes repurchased to the date of purchase, subject to
the rights of Holders on the relevant record date to receive interest due on
the relevant interest payment date (the “Change of Control Payment"). Within 60
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 4.14 and that all Notes tendered will be accepted for payment;




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




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




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




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




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




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



     The Company will comply with the requirements of Rule 14e-1 under the
Exchange Act and any other securities laws and regulations thereunder to the
extent those laws and regulations are applicable in connection with the
repurchase of the Notes as a result of a Change in Control. To the extent that
the provisions of any securities laws or regulations conflict with the
provisions of Sections 3.09 or 4.14 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 4.14 by
virtue of such compliance.



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




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




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



56









 






     (3) deliver or cause to be delivered to the Trustee the Notes
properly accepted together with an Officers’ 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.



     Prior to complying with any of the provisions of this Section 4.14, but in
any event within 90 days following a Change of Control, the Company will either
repay all outstanding Senior Debt or obtain the requisite consents, if any,
under all agreements governing outstanding Senior Debt to permit the repurchase
of Notes required by this Section 4.14.



     (c) Notwithstanding anything to the contrary in this Section 4.14, 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
this Section 4.14 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 4.15 No Senior Subordinated 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 Debt 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 Debt 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 4.16 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 Restricted Subsidiary may enter into a sale and leaseback
transaction if:




     (1) the Company or that Restricted Subsidiary, as applicable, could
have (a) incurred Indebtedness in an amount equal to the Capital Lease
Obligation, if any, relating to such sale and leaseback transaction under
Section 4.09 hereof and (b) incurred a Lien to secure such Indebtedness
pursuant to Section 4.12 hereof;




     (2) the gross cash proceeds and fair value of property received from
that sale and leaseback transaction are at least equal to the fair market
value, as determined in good faith by the Board of Directors and set
forth in an Officers’ Certificate delivered to the Trustee, of the
property that is the subject of such 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.



57









 




Section 4.17 Limitation on Issuances and Sales of Equity Interests in
Wholly-Owned Restricted Subsidiaries.




     The Company will not, and will not permit any of its Restricted
Subsidiaries to, transfer, convey, sell, lease or otherwise dispose of any
Equity Interests in any Wholly Owned Restricted Subsidiary of the Company to
any Person (other than the Company or a Wholly Owned Restricted Subsidiary of
the Company) or to issue any of its Equity Interests (other than, if necessary,
shares of its Capital Stock constituting directors’ qualifying shares) to any
Person other than to the Company or a Wholly Owned Restricted Subsidiary of the
Company, unless:




     (1) as a result of such transfer, conveyance, sale, lease or other
disposition or issuance such Restricted Subsidiary no longer constitutes
a Subsidiary; and




     (2) the Net Proceeds from such transfer, conveyance, sale, lease or
other disposition or issuance are applied in accordance with Section 4.10
hereof.



     Notwithstanding the foregoing, this Section 4.17 shall not prohibit the
issuance or sale of Equity Interests of any Restricted Subsidiary in connection
with (a) the formation or capitalization of a Restricted Subsidiary or (b) a
single transaction or a series of substantially contemporaneous transactions
whereby such Restricted Subsidiary becomes a Restricted Subsidiary of the
Company by reason of acquisition of securities or assets from another Person;
provided that following the consummation of any transaction or transactions
contemplated by clause (a) or (b), the ownership of the Equity Interests of the
relevant Restricted Subsidiary or Restricted Subsidiaries shall be as if this
Section 4.17 had been complied with at all times.



Section 4.18 INTENTIONALLY OMITTED




Section 4.19 Additional Subsidiary Guarantees.




     If the Company or any of its Restricted Subsidiaries acquires or creates
another Subsidiary after the date of this Indenture, then, unless such
Subsidiary either (1) is designated as an “Unrestricted Subsidiary” in
accordance with Section 4.20 hereof or (2) is not a wholly-owned Domestic
Restricted Subsidiary, that newly acquired or created Restricted Subsidiary
will become a Guarantor and execute a supplemental indenture substantially in
the form of Exhibit F hereto and deliver an Opinion of Counsel to the Trustee
within 10 Business Days of the date on which it was acquired or created;
provided, however, that such newly acquired or created Subsidiary shall not be
required to become a Guarantor if it is not also required to become a guarantor
of Indebtedness under the Credit Agreement of the Company or any Domestic
Restricted Subsidiary. The form of such Note Guarantee is attached as Exhibit
E hereto.



Section 4.20 Designation of Restricted and Unrestricted Subsidiaries.




     The Board of Directors 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, all
outstanding Investments owned by the Company and its Restricted Subsidiaries in
the Subsidiary so designated will be deemed to be an Investment made as of the
time of such designation and will reduce the amount available for Restricted
Payments under Section 4.07 hereof or Permitted Investments, as applicable. All
such outstanding Investments will be valued at their fair market value at the
time of such designation. In addition, such designation will only be permitted
if such Restricted Payment or Permitted Investment would be permitted at that
time and if such Restricted Subsidiary otherwise meets the definition of an
Unrestricted Subsidiary.



58









 





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



ARTICLE 5.

SUCCESSORS




     Section 5.01 Merger, Consolidation, or Sale of Assets.



     The Company will not, directly or indirectly: (1) consolidate or merge
with or into another Person (whether or not the Company is the surviving
corporation); or (2) sell, assign, transfer, convey or otherwise dispose of all
or substantially all of the properties or assets 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 shall have
been made is a corporation, Person or entity organized or existing
under the laws of the United States, any state thereof or the
District of Columbia;




     (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 shall have been
made assumes all the obligations of the Company under the Notes, this
Indenture and the Registration Rights Agreement pursuant to agreements in
form reasonably satisfactory to the Trustee;




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




     (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:




     (a) will, 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, be permitted to incur at least $1.00 of
additional Indebtedness pursuant to the Leverage Ratio test set
forth in Section 4.09(a) hereof; or



59









 






     (b) the Leverage Ratio test set forth in Section 4.09(a)
hereof immediately after such transaction (after giving pro forma
effect thereto as if such transaction had occurred at the beginning
of the applicable four-quarter period) would not be higher than the
Leverage Ratio of the Company and its Restricted Subsidiaries
immediately prior to the transaction; and




(5) the Company shall have delivered to the Trustee an Officers’
Certificate stating that all conditions precedent to such merger,
consolidation or sale provided in this Section have been satisfied.



     This Section 5.01 will not apply to a sale, assignment, transfer,
conveyance or other disposition of assets between or among the Company and any
of its Wholly Owned Restricted Subsidiaries.



     Notwithstanding the foregoing, the Company may merge with an Affiliate
incorporated for the purpose of reincorporating the Company in another
jurisdiction and/or for the purpose of forming a holding company. In addition,
for avoidance of doubt, it is understood that under no circumstances shall a
sale, assignment, transfer, conveyance or other disposition, in one or a series
of related transactions, of assets of the Company and its Restricted
Subsidiaries that represent less than 50% of the Consolidated EBITDA of the
Company for the Reference Period immediately preceding such transaction or
transactions be subject to this Section 5.01.



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 or other transfer of all or substantially
all of the Company’s assets in a transaction that is subject to, and that
complies with the provisions of, Section 5.01 hereof.



ARTICLE 6.

DEFAULTS AND REMEDIES




Section 6.01 Events of Default.




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




     (1) default for 30 days in the payment when due of interest on, or
Special Interest, if any, with respect to, the Notes, whether or not
prohibited by the subordination provisions of this Indenture;




     (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 the subordination provisions of this
Indenture;



60









 






     (3) failure by the Company or any of its Subsidiaries to comply with
the provisions of Sections 4.14 or 5.01 hereof;




     (4) failure by the Company or any of its Restricted Subsidiaries for
30 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
this Indenture;




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




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




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




and, in each case, the principal amount of any such Indebtedness,
together with the principal amount of any other such Indebtedness
under which there has been a Payment Default or the maturity of
which has been so accelerated, aggregates $15.0 million or more;




     (6) failure by the Company or any of its Restricted Subsidiaries to
pay final judgments entered by a court or courts of competent
jurisdiction in excess of $15.0 million, which judgments are not paid,
discharged or stayed for a period of 60 days;




     (7) except as permitted by this Indenture, any Note Guarantee 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; and




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




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




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




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



61









 





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



Section 6.02 Acceleration.




     In the case of an Event of Default specified in clause (8) 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 by notice to the Company or the Holders of at least 25% in aggregate
principal amount of the then outstanding Notes by notice to the Company and the
Trustee may declare all the Notes to be due and payable immediately.



Section 6.03 Other Remedies.




     If an Event of Default occurs and is continuing, the Trustee may pursue
any available remedy to collect the payment of principal, premium and Special
Interest, 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 all of the
Holders, waive any existing Default or Event of Default and its consequences
under this Indenture, except a continuing Default or Event of Default in the
payment of the principal of, or interest on, the Notes; provided, however, that
the Holders of a majority in aggregate principal amount of the then outstanding
Notes may rescind an acceleration and its consequences, including any related
payment default that resulted from such acceleration. Upon any such waiver,
such Default shall cease to exist, and any Event of Default arising therefrom
shall be deemed to have been cured for every purpose of this Indenture; but no
such waiver shall extend to any subsequent or other Default or impair any right
consequent thereon.



Section 6.05 Control by Majority.




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



Section 6.06 Limitation on Suits.




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




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



62









 






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




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




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




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



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



Section 6.07 Rights of Holders of Notes to Receive Payment.




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



Section 6.08 Collection Suit by Trustee.




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



63









 




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.




     Subject to the provisions of Article 10, if the Trustee collects any money
pursuant to this Article 6, it shall pay out the money in the following order:




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




     Second: to Holders of Notes for amounts due and unpaid on the Notes
for principal, premium and Special Interest, 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 and Special
Interest, if any and interest, respectively; and




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



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



Section 6.11 Undertaking for Costs.




     In any suit for the enforcement of any right or remedy under this
Indenture or in any suit against the Trustee for any action taken or omitted by
it as a Trustee, a court in its discretion may require the filing by any party
litigant in the suit of an undertaking to pay the costs of the suit, and the
court in its discretion may assess reasonable costs, including reasonable
attorneys’ fees, 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



64









 






     (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 clause (c) does not limit the effect of clause (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 clauses (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 Holder, 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 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.



65









 





     (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 security or
indemnity satisfactory to it 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.



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 or interest on any
Note, the Trustee may withhold the notice if it 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 1 beginning with the May 1 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



66









 




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



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



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



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



67









 





     (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 (together with
its parent) of at least $100.0 million as set forth in its most recent
published annual report of condition.



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



Section 7.11 Preferential Collection of Claims Against Company.




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



ARTICLE 8.

LEGAL DEFEASANCE AND COVENANT DEFEASANCE




Section 8.01 Option to Effect Legal Defeasance or Covenant Defeasance.





68









 








     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 and Special
Interest, if any, on, such Notes when such payments are due from the
trust referred to in Section 8.04 hereof;




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




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




     (4) this Article 8.



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



Section 8.03 Covenant Defeasance.




     Upon the Company’s exercise under Section 8.01 hereof of the option
applicable to this Section 8.03, the Company and each of the Guarantors will,
subject to the satisfaction of the conditions set forth in Section 8.04 hereof,
be released from each of their obligations under the covenants contained in
Sections 4.03, 4.07, 4.08, 4.09, 4.10, 4.11, 4.12, 4.14, 4.15, 4.16, 4.17, 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



69









 




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(8) 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, firm of independent accountants or other nationally
recognized firm of financial experts, to pay the principal of, premium,
if any, and interest on, the outstanding Notes on the stated date for
payment thereof or on the applicable redemption date, as the case may be,
and the Company must specify whether the Notes are being defeased to such
stated date for payment or to a particular redemption date;




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




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




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



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




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




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




     (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 Restricted Subsidiaries is a party or by which the Company
or any of its Restricted Subsidiaries is bound;



70









 






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




     (7) the Company must deliver to the Trustee an Officers’ Certificate
and an Opinion of Counsel, each stating that all conditions precedent as
contemplated by this Article 8 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 Special Interest, if
any, and interest, but such money need not be segregated from other funds
except to the extent required by law.



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



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



Section 8.06 Repayment to Company.




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



Section 8.07 Reinstatement.




71









 








     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
Special Interest, if any, or interest on, any Note following the reinstatement
of its obligations, the Company will be subrogated to the rights of the Holders
of such Notes to receive such payment from the money held by the Trustee or
Paying Agent.



ARTICLE 9.

AMENDMENT, SUPPLEMENT AND WAIVER




Section 9.01 Without Consent of Holders of Notes.




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




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




     (2) to provide for uncertificated Notes in addition to or in place
of certificated Notes; provided that the uncertificated Notes are issued
in registered form for purposes of Section 163 of the Internal Revenue
Code of 1986, as amended (the “Code”) or in a manner such that the
uncertificated Notes are described in Section 163(f)(2)(B) of the Code;




     (3) to provide for the assumption of the Company’s or a Guarantor’s
obligations to the Holders of the Notes and Note Guarantees by a
successor to the Company or such Guarantor pursuant to Article 5 or
Article 11 hereof;




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




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




     (6) to conform the text of this Indenture, the Note Guarantees or
the Notes to any provision of the “Description of Notes” section of the
Company’s Offering Circular dated April 27, 2004, relating to the initial
offering of the Notes, to the extent that such provision in that
“Description of Notes” was intended to be a verbatim recitation of a
provision of this Indenture, the Note Guarantees or the Notes;




     (7) to allow any Guarantor to execute a supplemental indenture
and/or a Note Guarantee with respect to the Notes; or




     (8) to provide for the issuance of Additional Notes in accordance
with the limitations set forth in this Indenture as of the date hereof.



     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



72









 




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 and in Section 10.13, the
Company and the Trustee may amend or supplement this Indenture (including,
without limitation, Section 3.09, 4.10 and 4.14 hereof) and the Notes and the
Note Guarantees with the consent of the Holders of at least a majority in
aggregate principal amount of the then outstanding Notes (including, without
limitation, Additional Notes, if any) voting as a single class (including,
without limitation, consents obtained in connection with a tender offer or
exchange offer for, or purchase of, the Notes), and, subject to Sections 6.04
and 6.07 hereof, any existing Default or Event of Default (other than a Default
or Event of Default in the payment of the principal of, premium or Special
Interest, 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 9.06 hereof, the Trustee
will join with the Company and the Guarantors in the execution of such amended
or supplemental indenture unless such amended or supplemental indenture
directly affects the Trustee’s own rights, duties or immunities under this
Indenture or otherwise, in which case the Trustee may in its discretion, but
will not be obligated to, enter into such amended or supplemental Indenture.



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



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




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




73










 






          (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 4.10 and
4.14 hereof);




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




          (4) waive a Default or Event of Default in the payment of principal
of, or premium, if any, or interest on, the Notes (except a rescission of
acceleration of the Notes by the Holders of at least a majority in
aggregate principal amount of the then outstanding Notes and a waiver of
the payment default that resulted from such acceleration and except as
provided above with respect to Sections 4.10 and 4.14 hereof);




          (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 4.10 and 4.14 hereof); or




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



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.




74









 








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



ARTICLE 10.

SUBORDINATION




Section 10.01 Agreement to Subordinate.




     The Company agrees, and each Holder by accepting a Note agrees, that the
Indebtedness evidenced by the Notes is subordinated in right of payment, to the
extent and in the manner provided in this Article 10, to the prior payment in
full in cash of all Senior Debt (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 Debt.



Section 10.02 Liquidation; Dissolution; Bankruptcy.




     Upon any distribution to creditors of the Company in a liquidation or
dissolution of the Company or any of its Subsidiaries or in a bankruptcy,
reorganization, insolvency, receivership or similar proceeding relating to the
Company, any of its Subsidiaries or any of their respective property, in an
assignment for the benefit of creditors of the Company or any of its
Subsidiaries, or in any marshalling of the Company’s or any of its
Subsidiaries’ assets and liabilities:




          (1) holders of Senior Debt will be entitled to receive payment in
full in cash of all Obligations due in respect of such Senior Debt
(including interest after the commencement of any bankruptcy proceeding
at the rate specified in the applicable Senior Debt) before the Holders
of Notes will be entitled to receive any payment with respect to the
Notes (except that Holders of Notes may receive and retain Permitted
Junior Securities and payments made from any defeasance trust created
pursuant to Article 8 hereof or any trust fund pursuant to Article 12
hereof); and




          (2) until all Obligations with respect to Senior Debt (as provided
in clause (1) above) are paid in full, any distribution to which Holders
would be entitled but for this Article 10 will be made to holders of
Senior Debt (except that Holders of Notes may receive and retain
Permitted Junior Securities and payments made from any defeasance trust
created pursuant to Article 8 hereof or any trust fund pursuant to
Article 12 hereof), as their interests may appear.



Section 10.03 Default on Designated Senior Debt.




     (a) The Company may not make any payment or distribution to the Trustee or
any Holder in respect of Indebtedness or other Obligation evidenced by the
Notes and may not acquire from the Trustee or any Holder any Notes for cash or
property (other than Permitted Junior Securities and payments made from any
defeasance trust created pursuant to Article 8 hereof or any trust fund
pursuant to Article 12 hereof) until all principal and other Obligations with
respect to the Senior Debt have been paid in full if:



75









 






          (1) payment default on Designated Senior Debt occurs and is
continuing beyond any applicable grace period in the agreement, indenture
or other document governing such Designated Senior Debt; or




          (2) any other default occurs and is continuing on any series of
Designated Senior Debt that permits holders of that series of Designated
Senior Debt to accelerate its maturity and the Trustee receives a notice
of such default (a “Payment Blockage Notice”) from the Company or the
holders of any Designated Senior Debt. If the Trustee receives any such
Payment Blockage Notice, no subsequent Payment Blockage Notice will be
effective for purposes of this Section 10.03 unless and until (A) at
least 360 days have elapsed since the effectiveness of the immediately
prior Payment Blockage Notice and (B) all scheduled payments of
principal, premium, if any, and interest on the Notes that have come due
have been paid in full in cash.



     No nonpayment default that existed or was continuing on the date of
delivery of any Payment Blockage Notice to the Trustee may be, or may be made,
the basis for a subsequent Payment Blockage Notice unless such default shall
have been cured or waived for a period of not less than 120 days.



     (b) The Company may and will resume payments on and distributions in
respect of the Notes and may acquire them upon the earlier of:




          (1) in the case of a payment default, upon the date upon which such
default is cured or waived in writing by the representatives of the
holders of Designated Senior Debt, or




          (2) in the case of a nonpayment default, upon the earlier of the
date on which such nonpayment default is cured or waived in writing by
the representatives of the holders of Designated Senior Debt or 179 days
after the date on which the applicable Payment Blockage Notice is
received by the Trustee, unless the maturity of any Designated Senior
Debt has been accelerated,


if this Article 10 otherwise permits the payment, distribution or acquisition
at the time of such payment or acquisition.




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 Debt 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
Indebtedness or other Obligation evidenced by the Notes (other than Permitted
Junior Securities and payments made from any defeasance trust created pursuant
to Article 8 hereof or any trust fund pursuant to Article 12 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 Debt as
their interests may appear or their Representative under the agreement,
indenture or other document (if any) pursuant to which Senior Debt may have
been issued, as their respective interests may appear, for application to the
payment of all Obligations with respect to Senior Debt 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 Debt.



76









 





     With respect to the holders of Senior Debt, 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 Debt 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 Debt, and will not be liable to any such holders 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 Debt 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 Debt as
provided in this Article 10.



Section 10.07 Subrogation.




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




77









 








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



     Upon any payment or distribution of assets of the Company referred to in
this Article 10, the Trustee and the Holders of Notes will be entitled to rely
upon any order or decree made by any court of competent jurisdiction or upon
any certificate of such Representative or of the liquidating trustee or agent
or other Person making any distribution to the Trustee or to the Holders of
Notes for the purpose of ascertaining the Persons entitled to participate in
such distribution, the holders of the Senior Debt 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 Indebtedness or
other Obligation evidenced by 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 Debt
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 (including with respect to any Note
Guarantee) may not be amended or modified without the written consent of the
holders of all Designated Senior Debt. In addition, any amendment to, or
waiver of, the provisions of this Article 10 (including with respect to any
Note Guarantee) that adversely affects the rights of the Holders of the Notes
will require the consent of the Holders of at least 75% in aggregate principal
amount of Notes then outstanding.



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



78









 




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 and Special Interest, 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) To the extent permitted by law, 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. To the extent permitted by law, each Guarantor hereby waives
diligence, presentment, demand of payment, filing of claims with a court in the
event of insolvency or bankruptcy of the Company, any right to require a
proceeding first against the Company, protest, notice and all demands
whatsoever and covenant that this Note Guarantee will not be discharged except
by complete performance of the obligations contained in the Notes and this
Indenture.



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



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



Section 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 Debt of such
Guarantor on the same basis as the Notes are junior and subordinated to Senior
Debt of the Company. For the purposes of the foregoing sentence, the Trustee



79









 




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.



Section 11.04 Execution and Delivery of Note Guarantee.




     To evidence its Note Guarantee set forth in Section 11 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 which is wholly-owned by the
Company or such Restricted 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:



80









 






               (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 (if other than such Guarantor)
assumes all the obligations of that Guarantor under this Indenture, its
Note Guarantee and the Registration Rights Agreement pursuant to a
supplemental indenture in form reasonably satisfactory to the Trustee; or




               (b) if applicable, 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 reasonably 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.



     (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 without any action on
the part of the Trustee.



     (c) Upon Legal or Covenant 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 without any action on the part of the Trustee.



81









 





     (d) In connection with any transaction after which any Guarantor is no
longer a Restricted Subsidiary of the Company in accordance with the terms of
this Indenture, such Guarantor will be released and relieved of any obligations
under its Note Guarantee without any action on the part of the Trustee.



     (e) If any Subsidiary Guarantor shall not guarantee any Indebtedness or
other obligations under the Credit Agreement of the Company or any Domestic
Restricted Subsidiary, such Guarantor will be released and relieved of any
obligations under its Note Guarantee without any action on the part of the
Trustee.



     Any Guarantor not released from its obligations under its Note Guarantee
as provided in this Section 11.06 will remain liable for the full amount of
principal of and interest and premium and Special Interest, 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 and thereafter
repaid to the Company, have been delivered to the Trustee for
cancellation; or




               (b) all Notes that have not been delivered to the Trustee for
cancellation have become due and payable by reason of the mailing of a
notice of redemption or otherwise or will become due and payable or may
be called for redemption within one year or have been called for
redemption pursuant to the provisions of Section 3.07 hereof 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 and Special Interest, if any, and
accrued interest to the date of maturity or redemption;




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




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




82









 






          (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 and Special Interest, 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 or Special Interest, if any, or interest on, any Notes
because of the reinstatement of its obligations, the Company shall be
subrogated to the rights of the Holders of such Notes to receive such payment
from the money or Government Securities held by the Trustee or Paying Agent.



ARTICLE 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:



83









 






	 	 	If to the Company and/or any Guarantor:
	 
	 	 	Emmis Operating Company

One Emmis Plaza

40 Monument Circle, Suite 700

Indianapolis, Indiana 46204

Facsimile No.: (317) 684-5580

Attention: Scott Enright, Esq.
	 
	 	 	With a copy to:
	 
	 	 	Paul, Weiss, Rifkind, Wharton & Garrison LLP

1285 Avenue of the Americas

New York, New York 10019

Facsimile No.: (212) 492-0025

Attention: John Kennedy, Esq.
	 
	 	 	If to the Trustee:
	 
	 	 	The Bank of Nova Scotia Trust Company of New York

One Liberty Plaza, 23rd Floor

New York, NY 10006

Facsimile No.: (212) 225-5436

Attention: Corporate Trust Administration





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



     All notices and communications (other than those sent to Holders) will be
deemed to have been duly given: at the time delivered by hand, if personally
delivered; five Business Days after being deposited in the mail, postage
prepaid, if mailed; when receipt acknowledged, if transmitted by facsimile; and
the next Business Day after timely delivery to the courier, if sent by
overnight air courier guaranteeing next day delivery, provided that notices and
communications to the Trustee will not be deemed to have been duly given until
actual receipt thereof by the Trustee.



     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.



     Except in the case of the Trustee, 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.




84









 








     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.



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, incorporator or
stockholder of the Company or any Guarantor, as such, 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 and
it is the view of the SEC that such a waiver is against public policy.



85









 





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.



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 11.06 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]




86









 








SIGNATURES




	 	 	 	 	 
	Dated as of May 10, 2004	 	Emmis Operating Company
	 
	 	 	 	 
	

	 	By:
	 	/s/ J. Scott Enright
	

	 	 	 	

	

	 	 	 	Name: J. Scott Enright

Title: Vice President and Associate General Counsel
	 
	 	 	 	 
	 	 	Emmis Communications Corporation
	 
	 	 	 	 
	 	 	Emmis Radio Corporation
	 
	 	 	 	 
	 	 	Emmis Television Broadcasting, L.P.
	 
	 	 	 	 
	 	 	Emmis Publishing, L.P.
	 
	 	 	 	 
	 	 	Emmis Indiana Broadcasting, L.P.
	 
	 	 	 	 
	 	 	SJL of Kansas Corp.
	 
	 	 	 	 
	 	 	Topeka Television Corporation
	 
	 	 	 	 
	 	 	Emmis International Broadcasting Corporation
	 
	 	 	 	 
	 	 	Emmis Meadowlands Corporation
	 
	 	 	 	 
	 	 	Emmis Publishing Corporation
	 
	 	 	 	 
	 	 	Emmis License Corporation
	 
	 	 	 	 
	 	 	Emmis Television License Corporation
	 
	 	 	 	 
	 	 	Emmis Radio License Corporation
	 
	 	 	 	 
	 	 	Emmis License Corporation of New York
	 
	 	 	 	 
	 	 	Emmis Radio License Corporation of New York
	 
	 	 	 	 
	 	 	Emmis Television License Corporation of Wichita
	 
	 	 	 	 
	 	 	Emmis Television License Corporation of Topeka
	 
	 	 	 	 
	 	 	Mediatex Communications Corporation
	 
	 	 	 	 
	 	 	Los Angeles Magazine Holding Company, Inc.
	 
	 	 	 	 
	

	 	By:
	 	/s/ J. Scott Enright
	

	 	 	 	

	

	 	 	 	Name: J. Scott Enright
	

	 	 	 	Title: Vice President and Associate General Counsel
	 
	 	 	 	 
	 	 	The Bank of Nova Scotia Trust Company of New York
	 
	 	 	 	 
	

	 	By:
	 	/s/ John Neylan
	

	 	 	 	

	

	 	 	 	Name: John F. Neylan
	

	 	 	 	Title: Trust Officer







 









 






EXHIBIT A




[Face of Note]










CUSIP/CINS ____________




6 7/8% Senior Subordinated Notes due 2012




	 	 	 
	No.     

	 	$             







EMMIS OPERATING COMPANY



promises to pay to__________or registered assigns,



the principal sum of______________________________________________________________________________________
DOLLARS on May 15, 2012.




Interest Payment Dates: May 15 and November 15




Record Dates: May 1 and November 1




Dated:




	 	 	 	 	 
	 	 	EMMIS OPERATING COMPANY
	 
	 	 	 	 
	

	 	By:	 	 
	

	 	 	 	

	

	 	 	 	Name:
	

	 	 	 	Title:







This is one of the Notes referred to

in the within-mentioned Indenture:




THE BANK OF NOVA SCOTIA TRUST COMPANY OF NEW YORK,

as Trustee




	 	 	 
	By:
	 	 
	

	
	 
	

	Authorized Signatory	 













A-1









 








[Back of Note]

6 7/8% Senior Subordinated Notes due 2012



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



[Insert the Private Placement 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. Emmis Operating Company, an Indiana corporation (the
“Company”), promises to pay interest on the principal amount of this Note
at 6-7/8% per annum from_______________, 20___ until maturity and shall
pay the Special Interest, if any, payable pursuant to the Registration
Rights Agreement referred to below. The Company will pay interest and
Special Interest, if any, semi-annually in arrears on May 15 and November
15 of each year, or if any such day is not a Business Day, on the next
succeeding Business Day (each, an “Interest Payment Date”). Interest on
the Notes will accrue from the most recent date to which interest has
been paid or, if no interest has been paid, from the date of issuance;
provided that if there is no existing Default in the payment of interest,
and if this Note is authenticated between a record date referred to on
the face hereof and the next succeeding Interest Payment Date, interest
shall accrue from such next succeeding Interest Payment Date; provided
further that the first Interest Payment Date shall be_______________,
20___. The Company will pay interest (including post-petition interest in
any proceeding under any Bankruptcy Law) on overdue principal and
premium, if any, from time to time on demand at a rate that is 1% per
annum in excess of the rate then in effect to the extent lawful; it will
pay interest (including post-petition interest in any proceeding under
any Bankruptcy Law) on overdue installments of interest and Special
Interest, if any, (without regard to any applicable grace periods) from
time to time on demand at the same rate to the extent lawful. Interest
will be 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) and Special Interest, if any, to the Persons
who are registered Holders of Notes at the close of business on the May 1
or November 1 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 Special Interest, if any, and interest at the
office or agency of the Company maintained for such purpose within or
without the City and State of New York, or, at the option of the Company,
payment of interest and Special Interest, if any, may be made by check
mailed to the Holders at their addresses set forth in the register of
Holders; provided that payment by wire transfer of immediately available
funds will be required with respect to principal of and interest, premium
and Special Interest, if any, on, all Global Notes and all other Notes
the Holders of which will have provided wire transfer instructions to the
Company or the Paying Agent. Such payment will be in such coin or
currency of the United States of America as at the time of payment is
legal tender for payment of public and private debts.




          (3) Paying Agent and Registrar. Initially, The Bank of Nova Scotia
Trust Company 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.



A-2









 






          (4) Indenture. The Company issued the Notes under an Indenture
dated as of May 10, 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.




          (5) Optional Redemption.



     (a) Except as set forth in clauses (b) and (c) of this Paragraph 5, the
Company will not have the option to redeem the Notes prior to May 15, 2008. On
or after May 15, 2008, the Company will have the option to 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 and Special Interest, if any, on the
Notes redeemed to the applicable redemption date, if redeemed during the
twelve-month period beginning on May 15 of the years indicated below, subject
to the rights of Holders on the relevant record date to receive interest on the
relevant interest payment date:



	 	 	 	 	 
	Year
	 	Percentage

	2008
	 	 	103.438	%
	2009
	 	 	101.719	%
	2010 and thereafter
	 	 	100.000	%







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



     (b) Notwithstanding the provisions of clause (a) of this Paragraph 5, at
any time prior to May 15, 2007, the Company may on any one or more occasions
redeem up to 35% of the aggregate principal amount of Notes issued under the
Indenture with the net cash proceeds of one or more Equity Offerings at a
redemption price equal to 106.875% of the aggregate principal amount thereof,
plus accrued and unpaid interest and Special Interest, if any, to the
redemption date; provided that at least 65% in aggregate principal amount of
the Notes originally issued under the Indenture (excluding Notes held by the
Company and its Subsidiaries) remains outstanding immediately after the
occurrence of such redemption and that such redemption occurs within 90 days of
the date of the closing of such Equity Offering.




     (c) Notwithstanding the provisions of clause (a) of this Paragraph 5, at
any time prior to May 15, 2008, the Company may also redeem all or a part of
the Notes upon not less than 30 nor more than 60 days’ prior notice mailed by
first-class mail to each Holder’s registered address, at a redemption price
equal to 100% of the principal amount of Notes redeemed plus the Applicable
Premium as of, and accrued and unpaid interest and Special Interest, if any, to
the applicable Redemption Date, subject to the rights of Holders on the
relevant record date to receive interest due on the relevant interest payment
date.




          (6) Mandatory Redemption.



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




          (7) Repurchase at the Option of Holder.




               (a) If there is a Change of Control, the Company will be required to
make an offer (a “Change of Control Offer”) to each Holder to repurchase
all or any part (equal to $1,000



A-3









 






               or an integral multiple thereof) of each Holder’s Notes at a
purchase price in cash equal to 101% of the aggregate principal amount
thereof plus accrued and unpaid interest and Special Interest, if any,
thereon to the date of purchase, subject to the rights of Holders on the
relevant record date to receive interest due on the relevant interest
payment date (the “Change of Control Payment”). Within 10 days following
any Change of Control, the Company will mail a notice to each Holder
setting forth the procedures governing the Change of Control Offer as
required by the Indenture.




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




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




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




          (10) Persons Deemed Owners. The registered Holder of a Note may be
treated as its owner for all purposes.



A-4









 






          (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. In addition, any amendment to, or waiver of, the
provisions of the Indenture relating to subordination (including with
respect to any Note Guarantee) that adversely affects the rights of the
Holders of the Notes will require the consent of the Holders of at least
75% in aggregate principal amount of Notes then outstanding. Also, any
amendment to such provisions (including with respect to any Note
Guarantee) will require the consent of the holders of Designated Senior
Debt. Without the consent of any Holder of a Note, the Indenture or the
Notes or the Note Guarantees may be amended or supplemented to cure any
ambiguity, defect or inconsistency, to provide for uncertificated Notes
in addition to or in place of certificated Notes, to provide for the
assumption of the Company’s or a Guarantor’s obligations to Holders of
the Notes and Note Guarantees in case of a merger or consolidation, to
make any change that would provide any additional rights or benefits to
the Holders of the Notes or that does not adversely affect the legal
rights under the Indenture of any such Holder, to comply with the
requirements of the SEC in order to effect or maintain the qualification
of the Indenture under the TIA, to conform the text of the Indenture or
the Notes to any provision of the “Description of Notes” section of the
Company’s Offering Circular dated April 27, 2004, relating to the initial
offering of the Notes, to the extent that such provision in that
“Description of Notes” was intended to be a verbatim recitation of a
provision of the Indenture, the Note Guarantees or the Notes, to allow
any Guarantor to execute a supplemental indenture to the Indenture and/or
a Note Guarantee with respect to the Notes or to provide for the issuance
of Additional Notes in accordance with the limitations set forth in the
Indenture.




          (12) Defaults and Remedies. Events of Default include: (i) default
for 30 days in the payment when due of interest on, or Special Interest,
if any, with respect to the Notes, whether or not prohibited by the
subordination provisions of the Indenture; (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 or otherwise,
whether or not prohibited by the subordination provisions of the
Indenture, (iii) failure by the Company or any of its Subsidiaries to
comply with Sections 4.14 or 5.01 of the Indenture; (iv) failure by the
Company or any of its Restricted Subsidiaries for 30 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; (v) default
under certain other agreements relating to Indebtedness of the Company or
any of its Restricted Subsidiaries which default is caused by a failure
to pay principal of or premium, if any, or interest on such Indebtedness
prior to the expiration of the grace period provided in such Indebtedness
on the date of such default or results in the acceleration of such
Indebtedness prior to its express maturity; (vi) certain final judgments
for the payment of money that remain undischarged for a period of 60
days; (vii) except as permitted by the Indenture, any Note Guarantee
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; and (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. If any Event of Default occurs and is
continuing, the Trustee by notice to the Company or the Holders of at
least 25% in aggregate principal amount of the then outstanding Notes by
notice to the Company and the Trustee may declare all the Notes to be due
and payable



A-5









 






          immediately. Notwithstanding the foregoing, in the case of an Event
of Default arising from certain events of bankruptcy or insolvency, all
outstanding Notes will become due and payable immediately without further
action or notice. Holders may not enforce the Indenture or the Notes
except as provided in the Indenture. Subject to certain limitations,
Holders of a majority in aggregate principal amount of the then
outstanding Notes may direct the Trustee in its exercise of any trust or
power. The Trustee may withhold from Holders of the Notes notice of any
continuing Default or Event of Default (except a Default or Event of
Default relating to the payment of principal or interest) if it
determines that withholding notice is in their interest. The Holders of
a majority in aggregate principal amount of the then outstanding Notes by
notice to the Trustee may, on behalf of the Holders of all of the Notes,
rescind an acceleration or waive any existing Default or Event of Default
and its consequences under the Indenture except a continuing Default or
Event of Default in the payment of interest on, or the principal of, the
Notes (other than a Default or Event of Default in such payment due to an
acceleration of the maturity of the Notes). The Company is required to
deliver to the Trustee annually a statement regarding compliance with the
Indenture, and the Company is required, within 30 days of 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 and
Special Interest, if any, on the Notes is subordinated to the prior
payment of Senior Debt on the terms provided in the Indenture.




          (14) 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.




          (15) No Recourse Against Others. A director, officer, employee,
incorporator or stockholder of the Company or any of the Guarantors, as
such, will not have any liability for any obligations of the Company or
the Guarantors under the Notes, the Note Guarantees or the Indenture or
for any claim based on, in respect of, or by reason of, such obligations
or their creation. Each Holder by accepting a Note waives and releases
all such liability. The waiver and release are part of the consideration
for the issuance of the Notes.




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




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




          (18) Additional Rights of Holders of Restricted Global Notes and
Restricted Definitive Notes. In addition to the rights provided to
Holders of Notes under the Indenture, Holders of Restricted Global Notes
and Restricted Definitive Notes will have all the rights set forth in the
Registration Rights Agreement dated as of May 10, 2004, among the
Company, the Guarantors and the other parties named on the signature
pages thereof, or, in the case of Additional Notes, Holders of Restricted
Global Notes and Restricted Definitive Notes will have the rights set
forth in one or more registration rights agreements, if any, among the
Company, the Guarantors and the other parties thereto, relating to rights
given by the Company and the



A-6









 






          Guarantors to the purchasers of any Additional Notes (collectively,
the “Registration Rights Agreement”).




          (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) 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:



Emmis Operating Company

One Emmis Plaza

40 Monument Circle, Suite 700

Indianapolis, Indiana 46204

Attention: Scott Enright, Esq.





A-7









 





ASSIGNMENT FORM




To assign this Note, fill in the form below:




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



(Insert assignee’s legal name)









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



























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




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




Date: _______________________





Your Signature:_____________________________________________

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




Signature Guarantee*: ___________________________________




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




A-8









 











OPTION OF HOLDER TO ELECT PURCHASE




     If you want to elect to have this Note purchased by the Company pursuant
to Section 4.10 or 4.14 of the Indenture, check the appropriate box below:



	 	 	 
	—Section 4.10

	 	—Section 4.14







     If you want to elect to have only part of the Note purchased by the
Company pursuant to Section 4.10 or Section 4.14 of the Indenture, state the
amount you elect to have purchased:



$_______________




Date:_______________




Your Signature:________________________________________________

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




Tax Identification No.:_____________________________




     Signature
Guarantee*:____________________________




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




A-9









 











SCHEDULE OF EXCHANGES OF INTERESTS IN THE GLOBAL NOTE *




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



	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	Principal Amount	 	 
	 	 	Amount of decrease in	 	 	 	of this Global Note	 	 
	 	 	Principal Amount	 	Amount of increase in	 	following such	 	Signature of authorized
	 	 	in Principal Amount of	 	Principal Amount of	 	decrease	 	officer of Trustee or
	Date of Exchange
	 	this Global Note
	 	this Global Note
	 	(or increase)
	 	Custodian

	 

	 	 
	 	 
	 	 
	 	 








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




A-10









 











EXHIBIT B




FORM OF CERTIFICATE OF TRANSFER



Emmis Operating Company

One Emmis Plaza

40 Monument Circle, Suite 700

Indianapolis, Indiana 46204




The Bank of Nova Scotia Trust Company of New York

One Liberty Plaza, 23rd Floor

New York, NY 10006



     Re:
6 7/8% Senior Subordinated Notes due 2012



     Reference is hereby made to the Indenture, dated as of May 10, 2004 (the
“Indenture”), among Emmis Operating Company, as issuer (the “Company”), the
Guarantors party thereto and The Bank of Nova Scotia Trust Company of New York,
as trustee. Capitalized terms used but not defined herein shall have the
meanings given to them in the Indenture.



_____________________________________________, (the “Transferor”) owns and proposes to transfer the
Note[s] or interest in such Note[s] specified in Annex A hereto, in the
principal amount of $____________ in such Note[s] or interests (the “Transfer”),
to ____________________________ (the “Transferee”), as further specified in
Annex A hereto. In connection with the Transfer, the Transferor hereby
certifies that:



[CHECK ALL THAT APPLY]




     1.   o Check if Transferee will take delivery of a beneficial interest in
the 144A Global Note or a Restricted Definitive Note pursuant to Rule 144A.
The Transfer is being effected pursuant to and in accordance with Rule 144A
under the Securities Act of 1933, as amended (the “Securities Act”), and,
accordingly, the Transferor hereby further certifies that the beneficial
interest or Definitive Note is being transferred to a Person that the
Transferor reasonably believes is purchasing the beneficial interest or
Definitive Note for its own account, or for one or more accounts with respect
to which such Person exercises sole investment discretion, and such Person and
each such account is a “qualified institutional buyer” within the meaning of
Rule 144A in a transaction meeting the requirements of Rule 144A, and such
Transfer is in compliance with any applicable blue sky securities laws of any
state of the United States. Upon consummation of the proposed Transfer in
accordance with the terms of the Indenture, the transferred beneficial interest
or Definitive Note will be subject to the restrictions on transfer enumerated
in the Private Placement Legend printed on the 144A Global Note and/or the
Restricted Definitive Note and in the Indenture and the Securities Act.



     2.  o Check if Transferee will take delivery of a beneficial interest in
the Regulation S Global Note or a Restricted Definitive Note pursuant to
Regulation S. The Transfer is being effected pursuant to and in accordance
with Rule 903 or Rule 904 under the Securities Act and, accordingly, the
Transferor hereby further certifies that (i) the Transfer is not being made to
a Person in the United States and (x) at the time the buy order was originated,
the Transferee was outside the United States or such Transferor and any Person
acting on its behalf reasonably believed and believes that the Transferee was
outside the United States or (y) the transaction was executed in, on or through
the facilities of a designated offshore securities market and neither such
Transferor nor any Person acting on its behalf
knows that the transaction was prearranged with a buyer in the United
States, (ii) no directed selling efforts have been made in contravention of the
requirements of Rule 903(b) or Rule 904(b) of Regulation S under the Securities
Act, (iii) the transaction is not part of a plan or scheme to evade the
registration requirements of the Securities Act and (iv) if the proposed
transfer is being made prior to the expiration of



B-1









 




the Restricted Period, the
transfer is not being made to a U.S. Person or for the account or benefit of a
U.S. Person (other than an Initial Purchaser). Upon consummation of the
proposed transfer in accordance with the terms of the Indenture, the
transferred beneficial interest or Definitive Note will be subject to the
restrictions on Transfer enumerated in the Private Placement Legend printed on
the Regulation S Global Note and/or the Restricted Definitive Note and in the
Indenture and the Securities Act.




     3.  o Check and complete if Transferee will take delivery of a beneficial
interest in the IAI Global Note or a Restricted Definitive Note pursuant to any
provision of the Securities Act other than Rule 144A or Regulation S. The
Transfer is being effected in compliance with the transfer restrictions
applicable to beneficial interests in Restricted Global Notes and Restricted
Definitive Notes and pursuant to and in accordance with the Securities Act and
any applicable blue sky securities laws of any state of the United States, and
accordingly the Transferor hereby further certifies that (check one):




     (a) o such Transfer is being effected pursuant to and in accordance
with Rule 144 under the Securities Act;



or





     (b) o such Transfer is being effected to the Company or a subsidiary
thereof;



or





     (c) o such Transfer is being effected pursuant to an effective
registration statement under the Securities Act and in compliance with
the prospectus delivery requirements of the Securities Act;



or





     (d) o such Transfer is being effected to an Institutional Accredited
Investor and pursuant to an exemption from the registration requirements
of the Securities Act other than Rule 144A, Rule 144, Rule 903 or Rule
904, and the Transferor hereby further certifies that it has not engaged
in any general solicitation within the meaning of Regulation D under the
Securities Act and the Transfer complies with the transfer restrictions
applicable to beneficial interests in a Restricted Global Note or
Restricted Definitive Notes and the requirements of the exemption
claimed, which certification is supported by (1) a certificate executed
by the Transferee in the form of Exhibit D to the Indenture and (2) if
such Transfer is in respect of a principal amount of Notes at the time
of transfer of less than $250,000, an Opinion of Counsel provided by the
Transferor or the Transferee (a copy of which the Transferor has
attached to this certification), to the effect that such Transfer is in
compliance with the Securities Act. Upon consummation of the proposed
transfer in accordance with the terms of the Indenture, the transferred
beneficial interest or Definitive Note will be subject to the
restrictions on transfer enumerated in the Private Placement Legend
printed on the IAI Global Note and/or the Restricted Definitive Notes
and in the Indenture and the Securities Act.



     4.   o Check if Transferee will take delivery of a beneficial interest in
an Unrestricted Global Note or of an Unrestricted Definitive Note.



     (a) o Check if Transfer is pursuant to Rule 144. (i) The Transfer is
being effected pursuant to and in accordance with Rule 144 under the Securities
Act and in compliance with the transfer restrictions contained in the Indenture
and any applicable blue sky securities laws of any state of the United States
and (ii) the restrictions on transfer contained in the Indenture and the
Private Placement



B-2









 




Legend are not required in order to maintain compliance with
the Securities Act. Upon consummation of the proposed Transfer in accordance
with the terms of the Indenture, the transferred beneficial interest or
Definitive Note will no longer be subject to the restrictions on transfer
enumerated in the Private Placement Legend printed on the Restricted Global
Notes, on Restricted Definitive Notes and in the Indenture.




     (b) o Check if Transfer is Pursuant to Regulation S. (i) The Transfer is
being effected pursuant to and in accordance with Rule 903 or Rule 904 under
the Securities Act and in compliance with the transfer restrictions contained
in the Indenture and any applicable blue sky securities laws of any state of
the United States and (ii) the restrictions on transfer contained in the
Indenture and the Private Placement Legend are not required in order to
maintain compliance with the Securities Act. Upon consummation of the proposed
Transfer in accordance with the terms of the Indenture, the transferred
beneficial interest or Definitive Note will no longer be subject to the
restrictions on transfer enumerated in the Private Placement Legend printed on
the Restricted Global Notes, on Restricted Definitive Notes and in the
Indenture.



     (c) o Check if Transfer is Pursuant to Other Exemption. (i) The Transfer
is being effected pursuant to and in compliance with an exemption from the
registration requirements of the Securities Act other than Rule 144, Rule 903
or Rule 904 and in compliance with the transfer restrictions contained in the
Indenture and any applicable blue sky securities laws of any State of the
United States and (ii) the restrictions on transfer contained in the Indenture
and the Private Placement Legend are not required in order to maintain
compliance with the Securities Act. Upon consummation of the proposed Transfer
in accordance with the terms of the Indenture, the transferred beneficial
interest or Definitive Note will not be subject to the restrictions on transfer
enumerated in the Private Placement Legend printed on the Restricted Global
Notes or Restricted Definitive Notes and in the Indenture.



     This certificate and the statements contained herein are made for your
benefit and the benefit of the Company.




_________________________ 
[Insert Name of Transferor]     



	 	 	 	 	 
	 	 	 
	 	By:  	
 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 




Dated:_______________________




B-3









 








ANNEX A TO CERTIFICATE OF TRANSFER





	1.	 	The Transferor owns and proposes to transfer the following:





[CHECK ONE OF (a) OR (b)]





(a) o a beneficial interest in the:




(i)   o 144A Global Note (CUSIP_________________), or




(ii) o Regulation S Global Note (CUSIP_________________), or




(iii)o IAI Global Note (CUSIP_________________); or




(b) o a Restricted Definitive Note.




	2.	 	After the Transfer the Transferee will hold:





[CHECK ONE]





(a) o a beneficial interest in the:




(i)   o 144A Global Note (CUSIP_________________), or




(ii)  o Regulation S Global Note (CUSIP_________________), or




(iii) o IAI Global Note (CUSIP_________________); or




(iv) o Unrestricted Global Note (CUSIP_________________); or




(b) o a Restricted Definitive Note; or




(c) o an Unrestricted Definitive Note,



     in accordance with the terms of the Indenture.



B-4









 





EXHIBIT C




FORM OF CERTIFICATE OF EXCHANGE



Emmis Operating Company

One Emmis Plaza

40 Monument Circle, Suite 700

Indianapolis, Indiana 46204



The Bank of Nova Scotia Trust Company of New York

One Liberty Plaza, 23rd Floor

New York, NY 10006




     Re:
6 7/8% Senior Subordinated Notes due 2012 (CUSP _______________)



     Reference is hereby made to the Indenture, dated as of May 10, 2004 (the
"Indenture”), among Emmis Operating Company, as issuer (the “Company”), the
Guarantors party thereto and The Bank of Nova Scotia Trust Company of New York,
as trustee. Capitalized terms used but not defined herein shall have the
meanings given to them in the Indenture.



_______________________, (the “Owner”) owns and proposes to exchange
the Note[s] or interest in such Note[s] specified herein, in the principal
amount of $_______________in such Note[s] or interests (the “Exchange”). In
connection with the Exchange, the Owner hereby certifies that:



     1. Exchange of Restricted Definitive Notes or Beneficial Interests in a
Restricted Global Note for Unrestricted Definitive Notes or Beneficial
Interests in an Unrestricted Global Note



     (a) o Check if Exchange is from beneficial interest in a Restricted Global
Note to beneficial interest in an Unrestricted Global Note. In connection with
the Exchange of the Owner’s beneficial interest in a Restricted Global Note for
a beneficial interest in an Unrestricted Global Note in an equal principal
amount, the Owner hereby certifies (i) the beneficial interest is being
acquired for the Owner’s own account without transfer, (ii) such Exchange has
been effected in compliance with the transfer restrictions applicable to the
Global Notes and pursuant to and in accordance with the Securities Act of 1933,
as amended (the “Securities Act”), (iii) the restrictions on transfer contained
in the Indenture and the Private Placement Legend are not required in order to
maintain compliance with the Securities Act and (iv) the beneficial interest in
an Unrestricted Global Note is being acquired in compliance with any applicable
blue sky securities laws of any state of the United States.



     (b) o Check if Exchange is from beneficial interest in a Restricted Global
Note to Unrestricted Definitive Note. In connection with the Exchange of the
Owner’s beneficial interest in a Restricted Global Note for an Unrestricted
Definitive Note, the Owner hereby certifies (i) the Definitive Note is being
acquired for the Owner’s own account without transfer, (ii) such Exchange has
been effected in compliance with the transfer restrictions applicable to the
Restricted Global Notes and pursuant to and in accordance with the Securities
Act, (iii) the restrictions on transfer contained in the Indenture and the
Private Placement Legend are not required in order to maintain compliance with
the Securities Act and (iv) the Definitive Note is being acquired in compliance
with any applicable blue sky securities laws of any state of the United States.



     (c) o Check if Exchange is from Restricted Definitive Note to beneficial
interest in an Unrestricted Global Note. In connection with the Owner’s
Exchange of a Restricted Definitive Note for
a beneficial interest in an Unrestricted Global Note, the Owner hereby
certifies (i) the beneficial interest is


C-1









 




being acquired for the Owner’s own
account without transfer, (ii) such Exchange has been effected in compliance
with the transfer restrictions applicable to Restricted Definitive Notes and
pursuant to and in accordance with the Securities Act, (iii) the restrictions
on transfer contained in the Indenture and the Private Placement Legend are not
required in order to maintain compliance with the Securities Act and (iv) the
beneficial interest is being acquired in compliance with any applicable blue
sky securities laws of any state of the United States.




     (d) o Check if Exchange is from Restricted Definitive Note to Unrestricted
Definitive Note. In connection with the Owner’s Exchange of a Restricted
Definitive Note for an Unrestricted Definitive Note, the Owner hereby certifies
(i) the Unrestricted Definitive Note is being acquired for the Owner’s own
account without transfer, (ii) such Exchange has been effected in compliance
with the transfer restrictions applicable to Restricted Definitive Notes and
pursuant to and in accordance with the Securities Act, (iii) the restrictions
on transfer contained in the Indenture and the Private Placement Legend are not
required in order to maintain compliance with the Securities Act and (iv) the
Unrestricted Definitive Note is being acquired in compliance with any
applicable blue sky securities laws of any state of the United States.



     2. Exchange of Restricted Definitive Notes or Beneficial Interests in
Restricted Global Notes for Restricted Definitive Notes or Beneficial Interests
in Restricted Global Notes



     (a) o Check if Exchange is from beneficial interest in a Restricted Global
Note to Restricted Definitive Note. In connection with the Exchange of the
Owner’s beneficial interest in a Restricted Global Note for a Restricted
Definitive Note with an equal principal amount, the Owner hereby certifies that
the Restricted Definitive Note is being acquired for the Owner’s own account
without transfer. Upon consummation of the proposed Exchange in accordance
with the terms of the Indenture, the Restricted Definitive Note issued will
continue to be subject to the restrictions on transfer enumerated in the
Private Placement Legend printed on the Restricted Definitive Note and in the
Indenture and the Securities Act.



     (b) o Check if Exchange is from Restricted Definitive Note to beneficial
interest in a Restricted Global Note. In connection with the Exchange of the
Owner’s Restricted Definitive Note for a beneficial interest in the [CHECK ONE]
144A Global Note, Regulation S Global Note, IAI Global Note with an equal
principal amount, the Owner hereby certifies (i) the beneficial interest is
being acquired for the Owner’s own account without transfer and (ii) such
Exchange has been effected in compliance with the transfer restrictions
applicable to the Restricted Global Notes and pursuant to and in accordance
with the Securities Act, and in compliance with any applicable blue sky
securities laws of any state of the United States. Upon consummation of the
proposed Exchange in accordance with the terms of the Indenture, the beneficial
interest issued will be subject to the restrictions on transfer enumerated in
the Private Placement Legend printed on the relevant Restricted Global Note and
in the Indenture and the Securities Act.



	 
	This certificate and the statements contained herein are made for your
benefit and the benefit of the Company.








_________________________

[Insert Name of Transferor]    



	 	 	 	 	 
	 	 	 
	 	By:  	
 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 





C-2








 





Dated:______________________




C-3









 








EXHIBIT D




FORM OF CERTIFICATE FROM




ACQUIRING INSTITUTIONAL ACCREDITED INVESTOR



Emmis Operating Company

One Emmis Plaza

40 Monument Circle, Suite 700

Indianapolis, Indiana 46204



The Bank of Nova Scotia Trust Company of New York

One Liberty Plaza, 23rd Floor

New York, NY 10006




     Re:
6 7/8% Senior Subordinated Notes due 2012



     Reference is hereby made to the Indenture, dated as of May 10, 2004 (the
"Indenture”), among Emmis Operating Company, as issuer (the “Company”), the
guarantors party thereto and The Bank of Nova Scotia Trust Company of New York,
as trustee. Capitalized terms used but not defined herein shall have the
meanings given to them in the Indenture.



     In connection with our proposed purchase of $________________ aggregate
principal amount of:



     (a) o a beneficial interest in a Global Note, or



     (b) o a Definitive Note,



     we confirm that:



     1. We understand that any subsequent transfer of the Notes or any interest
therein is subject to certain restrictions and conditions set forth in the
Indenture and the undersigned agrees to be bound by, and not to resell, pledge
or otherwise transfer the Notes or any interest therein except in compliance
with, such restrictions and conditions and the Securities Act of 1933, as
amended (the “Securities Act”).



     2. We understand that the offer and sale of the Notes have not been
registered under the Securities Act, and that the Notes and any interest
therein may not be offered or sold except as permitted in the following
sentence. We agree, on our own behalf and on behalf of any accounts for which
we are acting as hereinafter stated, that if we should sell the Notes or any
interest therein, we will do so only (A) to the Company or any subsidiary
thereof, (B) in accordance with Rule 144A under the Securities Act to a
“qualified institutional buyer” (as defined therein), (C) to an institutional
“accredited investor” (as defined below) that, prior to such transfer,
furnishes (or has furnished on its behalf by a U.S. broker-dealer) to you and
to the Company a signed letter substantially in the form of this letter and, if
such transfer is in respect of a principal amount of Notes, at the time of
transfer of less than $250,000, an Opinion of Counsel in form reasonably
acceptable to the Company to the effect that such transfer is in compliance
with the Securities Act, (D) outside the United States in accordance with Rule
904 of Regulation S under the Securities Act, (E) pursuant to the provisions of
Rule 144(k) under the Securities Act or (F) pursuant to an effective
registration statement under the Securities Act, and we further agree to
provide to any Person purchasing the Definitive Note or beneficial interest in
a Global Note from us in a transaction meeting the requirements of clauses (A)
through (E) of this Paragraph 2 a notice advising such purchaser that resales
thereof are restricted as stated herein.



D-1









 





     3. We understand that, on any proposed resale of the Notes or beneficial
interest therein, we will be required to furnish to you and the Company such
certifications, legal opinions and other information as you and the Company may
reasonably require to confirm that the proposed sale complies with the
foregoing restrictions. We further understand that the Notes purchased by us
will bear a legend to the foregoing effect.



     4. We are an institutional “accredited investor” (as defined in Rule
501(a)(1), (2), (3) or (7) of Regulation D under the Securities Act) and have
such knowledge and experience in financial and business matters as to be
capable of evaluating the merits and risks of our investment in the Notes, and
we and any accounts for which we are acting are each able to bear the economic
risk of our or its investment.



     5. We are acquiring the Notes or beneficial interest therein purchased by
us for our own account or for one or more accounts (each of which is an
institutional “accredited investor”) as to each of which we exercise sole
investment discretion.



     You and the Company are entitled to rely upon this letter and are
irrevocably authorized to produce this letter or a copy hereof to any
interested party in any administrative or legal proceedings or official inquiry
with respect to the matters covered hereby.



_____________________________________ 

[Insert Name of Accredited Investor]



	 	 	 	 	 
	 	 	 
	 	By:  	
 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 




Dated:_______________________




D-2









 








EXHIBIT E




FORM OF NOTATION OF GUARANTEE





     For value received, each Guarantor (which term includes any successor
Person under the Indenture) has, jointly and severally, unconditionally
guaranteed, to the extent set forth in the Indenture and subject to the
provisions in the Indenture dated as of May 10, 2004 (the “Indenture”) among
Emmis Operating Company, (the “Company"), the Guarantors party thereto and The
Bank of Nova Scotia Trust Company of New York, as trustee (the “Trustee”), (a)
the due and punctual payment of the principal of, premium and Special Interest,
if any, and interest on, the Notes, whether at maturity, by acceleration,
redemption or otherwise, the due and punctual payment of interest on overdue
principal of and interest on the Notes, if any, if lawful, and the due and
punctual performance of all other obligations of the Company to the Holders or
the Trustee all in accordance with the terms of the Indenture and (b) in case
of any extension of time of payment or renewal of any Notes or any of such
other obligations, that the same will be promptly paid in full when due or
performed in accordance with the terms of the extension or renewal, whether at
stated maturity, by acceleration or otherwise. The obligations of the
Guarantors to the Holders of Notes and to the Trustee pursuant to the Note
Guarantee and the Indenture are expressly set forth in Article 11 of the
Indenture and reference is hereby made to the Indenture for the precise terms
of the Note Guarantee. Each Holder of a Note, by accepting the same, (a)
agrees to and shall be bound by such provisions (b) authorizes and directs the
Trustee, on behalf of such Holder, to take such action as may be necessary or
appropriate to effectuate the subordination as provided in the Indenture and
(c) appoints the Trustee attorney-in-fact of such Holder for such purpose;
provided, however, that the Indebtedness evidenced by this Note Guarantee shall
cease to be so subordinated and subject in right of payment upon any defeasance
of this Note in accordance with the provisions of the Indenture.



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


	 	 	 	 	 
	 	[Name of Guarantor(s)]

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 




E-1









 






	 	 	 	 	 



EXHIBIT F




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 Emmis Operating Company (or its permitted
successor), an Indiana corporation (the “Company”), the Company, the other
Guarantors (as defined in the Indenture referred to herein) and The Bank of
Nova Scotia Trust Company 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 May 10, 2004 providing for the
issuance of 6 7/8% Senior Subordinated Notes due 2012 (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 11 thereof.



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



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



F-1









 





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



     7. Effect of Headings. The Section headings herein are for convenience
only and shall not affect the construction hereof.



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



F-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:  	 	 
	 



	 	 	 	 	 
	 	[COMPANY]

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 



	 	 	 	 	 
	 	

[EXISTING GUARANTORS]

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 



	 	 	 	 	 
	 	[TRUSTEE],

as Trustee

 	 
	 	By:  	 	 
	 	 	Authorized Signatory 	 
	 	 	 	 
	 





F-3