For the quarterly period ended June 30, 2004

-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: webmaster@www.sec.gov Originator-Key-Asymmetric: MFgwCgYEVQgBAQICAf8DSgAwRwJAW2sNKK9AVtBzYZmr6aGjlWyK3XmZv3dTINen TWSM7vrzLADbmYQaionwg5sDW3P6oaM5D3tdezXMm7z1T+B+twIDAQAB MIC-Info: RSA-MD5,RSA, TTrnuGrzTV0s9EUwEUyp/1T9YKYbvBBD0zWjQR+pwh3YfLbUrEE1u7BwMQ915nGV QqyS0E6+KKCIOhJ64o99Pw== 0001193125-04-133622.txt : 20040806 0001193125-04-133622.hdr.sgml : 20040806 20040806092343 ACCESSION NUMBER: 0001193125-04-133622 CONFORMED SUBMISSION TYPE: 10-Q PUBLIC DOCUMENT COUNT: 7 CONFORMED PERIOD OF REPORT: 20040630 FILED AS OF DATE: 20040806 FILER: COMPANY DATA: COMPANY CONFORMED NAME: COX RADIO INC CENTRAL INDEX KEY: 0001018522 STANDARD INDUSTRIAL CLASSIFICATION: RADIO BROADCASTING STATIONS [4832] IRS NUMBER: 581620022 STATE OF INCORPORATION: DE FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: 10-Q SEC ACT: 1934 Act SEC FILE NUMBER: 001-12187 FILM NUMBER: 04956278 BUSINESS ADDRESS: STREET 1: C/O COX ENTERPRISES INC STREET 2: 6205 PEACHTREE DUNWOODY ROAD CITY: ATLANTA STATE: GA ZIP: 30328 BUSINESS PHONE: 678-645-0000 MAIL ADDRESS: STREET 1: C/O COX ENTERPRISES INC STREET 2: 6205 PEACHTREE DUNWOODY ROAD CITY: ATLANTA STATE: GA ZIP: 30328 10-Q 1 d10q.htm FOR THE QUARTERLY PERIOD ENDED JUNE 30, 2004 For the quarterly period ended June 30, 2004

UNITED STATES

SECURITIES AND EXCHANGE COMMISSION

Washington, D.C. 20549

FORM 10-Q

x	Quarterly Report Pursuant to Section 13 or 15(d) of the Securities Exchange Act of 1934

For the quarterly period ended June 30, 2004

¨	Transition Report Pursuant to Section 13 or 15(d) of the Securities Exchange Act of 1934

Commission File Number 1-12187

LOGO

(Exact name of registrant as specified in its charter)

Delaware

58-1620022

(State or other jurisdiction of

incorporation or organization)

(I.R.S. Employer

Identification No.)

6205 Peachtree Dunwoody Road

Atlanta, Georgia 30328

(Address of principal executive offices and zip code)

(678) 645-0000

(Registrant’s telephone number, including area code)

Indicate by check mark whether the registrant (1) has filed all reports required to be filed by Section 13 or 15(d) of the Securities Exchange Act of 1934 during the preceding 12 months (or for such shorter period that the registrant was required to file such reports), and (2) has been subject to such filing requirements for the past 90 days. Yes x No ¨

Indicate by check mark whether the registrant is an accelerated filer (as defined in Exchange Act Rule 12b-2). Yes x No ¨

Indicate the number of shares outstanding of each of the issuer’s classes of common stock, as of the latest practicable date.

Class A common stock, par value of $0.33 – 41,944,571 shares outstanding as of June 30, 2004.

Class B common stock, par value of $0.33 – 58,733,016 shares outstanding as of June 30, 2004.

COX RADIO, INC.

FORM 10-Q

FOR THE QUARTER ENDED JUNE 30, 2004

TABLE OF CONTENTS


		Page
	Part I – Financial Information

Item 1.	Financial Statements	3

Item 2.	Management’s Discussion and Analysis of Financial Condition and Results of Operations	15

Item 3.	Quantitative and Qualitative Disclosures about Market Risk	22

Item 4.	Controls and Procedures	22

	Part II - Other Information

Item 1.	Legal Proceedings	23

Item 2.	Changes in Securities, Use of Proceeds and Issuer Purchases of Equity Securities Equity Securities	23

Item 3.	Defaults Upon Senior Securities	23

Item 4.	Submission of Matters to a Vote of Security Holders	24

Item 5.	Other Information	24

Item 6.	Exhibits and Reports on Form 8-K	24

Signatures		26

Preliminary Note

This Quarterly Report on Form 10-Q is for the three-month and six-month periods ended June 30, 2004. This Quarterly Report modifies and supersedes documents filed prior to this Quarterly Report. The SEC allows us to “incorporate by reference” information that we file with them, which means that we can disclose important information to you by referring you directly to those documents. Information incorporated by reference is considered to be part of this Quarterly Report. In addition, information that we file with the SEC in the future will automatically update and supersede information contained in this Quarterly Report. In this Quarterly Report, “Cox Radio,” “we,” “us” and “our” refer to Cox Radio, Inc. and its subsidiaries.

Part I – FINANCIAL INFORMATION

ITEM 1. Financial Statements

COX RADIO, INC.

CONSOLIDATED BALANCE SHEETS

(Unaudited)


	June 30, 2004			December 31, 2003
	(Amounts in thousands, except share data)
ASSETS
Current assets:
Cash and cash equivalents	$	5,158		$	4,202
Accounts and notes receivable, less allowance for doubtful accounts of $4,210 and $4,229, respectively		89,609			82,750
Prepaid expenses and other current assets		11,282			7,194
Amounts due from Cox Enterprises.		—			6,284

Total current assets		106,049			100,430
Property and equipment, net		76,348			78,333
FCC licenses and other intangible assets, net		2,031,200			2,028,798
Goodwill		46,033			46,033
Other assets		22,972			23,432

Total assets	$	2,282,602		$	2,277,026

LIABILITIES AND SHAREHOLDERS’ EQUITY
Current liabilities:
Accounts payable and accrued expenses	$	21,060		$	28,602
Accrued salaries and wages		3,153			4,139
Accrued interest		7,353			7,230
Income taxes payable		29,791			10,937
Amounts due to Cox Enterprises.		5,268			—
Other current liabilities		4,800			2,924

Total current liabilities		71,425			53,832
Notes payable		494,810			534,744
Deferred income taxes		493,698			502,015
Other long term liabilities		4,399			4,767

Total liabilities		1,064,332			1,095,358

Commitments and contingencies (Note 4)

Shareholders’ equity:
Preferred stock, $0.33 par value: 15,000,000 shares authorized, none outstanding		—			—
Class A common stock, $0.33 par value; 210,000,000 shares authorized; 42,072,842 and 41,718,469 shares issued and 41,944,571 and 41,590,198 shares outstanding at June 30, 2004 and December 31, 2003, respectively		13,884			13,767
Class B common stock, $0.33 par value; 135,000,000 shares authorized; 58,733,016 shares issued and outstanding at June 30, 2004 and December 31, 2003		19,382			19,382
Additional paid-in capital		633,270			626,499
Unearned stock-based compensation		(2,576	)		—
Accumulated other comprehensive loss, net of tax		(913	)		(1,863	)
Retained earnings		557,069			525,729

		1,220,116			1,183,514
Less: Class A common stock held in treasury (128,271 shares at cost at June 30, 2004 and December 31, 2003)		(1,846	)		(1,846	)

Total shareholders’ equity		1,218,270			1,181,668

Total liabilities and shareholders’ equity	$	2,282,602		$	2,277,026

See notes to unaudited consolidated financial statements.

COX RADIO, INC.

CONSOLIDATED STATEMENTS OF INCOME

(Unaudited)

(In thousands, except per share data)


	Three Months Ended June 30,						Six Months Ended June 30,
	2004			2003			2004			2003
Net revenues:
Local	$	84,252		$	83,020		$	151,097		$	149,959
National		25,155			26,010			44,957			45,268
Other		7,468			6,216			13,912			11,588

Total revenues		116,875			115,246			209,966			206,815

Operating expenses:
Cost of services (exclusive of depreciation and amortization shown separately below)		24,993			25,434			46,710			46,654
Selling, general and administrative		42,612			43,296			79,970			81,506
Corporate general and administrative		4,634			4,400			9,179			8,635
Depreciation		2,892			2,977			5,852			5,921
Amortization		13			29			31			59
Other operating expenses, net		69			29			69			28

Operating income		41,662			39,081			68,155			64,012

Other income (expense):
Interest income		1			1			2			2
Interest expense		(7,710	)		(8,877	)		(15,601	)		(18,053	)
Other - net		(88	)		(115	)		(188	)		(239	)

Income before income taxes		33,865			30,090			52,368			45,722

Current income tax expense		25,733			6,143			29,992			9,487
Deferred income tax (benefit) expense		(12,112	)		5,879			(8,964	)		8,790

Total income tax expense		13,621			12,022			21,028			18,277

Net income	$	20,244		$	18,068		$	31,340		$	27,445

Basic net income per share
Net income per common share	$	0.20		$	0.18		$	0.31		$	0.27

Diluted net income per share
Net income per common share	$	0.20		$	0.18		$	0.31		$	0.27

Weighted average basic common shares outstanding		100,544			100,217			100,537			100,208

Weighted average diluted common shares outstanding		100,708			100,622			100,744			100,598

See notes to unaudited consolidated financial statements.

COX RADIO, INC.

CONSOLIDATED STATEMENT OF SHAREHOLDERS’ EQUITY

(Unaudited)


	Class A Common Stock			Class B Common Stock			Additional Paid-in Capital
	Shares	Amount		Shares	Amount		Additional Paid-in Capital
	(Amounts in thousands)
Balance at December 31, 2003	41,718	$	13,767	58,733	$	19,382	$	626,499

Comprehensive income:
Net income	—		—	—		—		—
Unrealized gain on interest rate swaps	—		—	—		—		—
Reclassification to earnings of derivative transition adjustments	—		—	—		—		—
Comprehensive income	—		—	—		—		—
Unearned stock based compensation	—		—	—		—		—
Amortization of unearned stock-based compensation	—		—	—		—		—
Issuance of Class A common stock related to incentive plans including tax benefit of $0.1 million	355		117	—		—		6,771

Balance at June 30, 2004	42,073	$	13,884	58,733	$	19,382	$	633,270


	Unearned Compensation			Accumulated Other Comprehensive Loss			Retained Earnings		Treasury Stock				Total
	Unearned Compensation			Accumulated Other Comprehensive Loss			Retained Earnings		Shares	Amount			Total
	(Amounts in thousands)
Balance at December 31, 2003	$	—		$	(1,863	)	$	525,729	128	$	(1,846	)	$	1,181,668

Comprehensive income:
Net income		—			—			31,340	—		—			31,340
Unrealized gain on interest rate swaps		—			892			—	—		—			892
Reclassification to earnings of derivative transition adjustments		—			58			—	—		—			58

Comprehensive income		—			—			—	—		—			32,290

Unearned stock based compensation		(2,733	)		—			—	—		—			(2,733	)
Amortization of unearned stock-based compensation		157			—			—	—		—			157
Issuance of Class A common stock related to incentive plans including tax benefit of $0.1 million		—			—			—	—		—			6,888

Balance at June 30, 2004	$	(2,576	)	$	(913	)	$	557,069	128	$	(1,846	)	$	1,218,270

See notes to unaudited consolidated financial statements.

COX RADIO, INC.

CONSOLIDATED STATEMENTS OF CASH FLOWS

(Unaudited)


	Six Months Ended June 30,
	2004			2003
	(Amounts in thousands)
Cash flows from operating activities:
Net income	$	31,340		$	27,445
Items not requiring cash:
Depreciation		5,852			5,921
Amortization		31			59
Deferred income taxes		(8,964	)		8,790
Tax benefit from exercise of stock options		121			396
Amortization of unearned compensation		157			—
Other		189			28
Changes in assets and liabilities:
Increase in accounts receivable		(6,859	)		(1,320	)
Decrease in accounts payable and accrued expenses		(7,547	)		(1,998	)
Decrease in accrued salaries and wages		(986	)		(1,439	)
Increase (decrease) in accrued interest		123			(745	)
Increase in income taxes payable		18,854			2,226
Other, net		(1,190	)		(2,400	)

Net cash provided by operating activities		31,121			36,963

Cash flows from investing activities:
Capital expenditures		(3,970	)		(5,940	)
Acquisitions and related expenses, net of cash acquired		—			(116	)
Decrease in other long-term assets		184			371
Proceeds from sales of property and equipment		45			12
Investment in signal upgrades		(1,877	)		(4,703	)

Net cash used in investing activities		(5,618	)		(10,376	)

Cash flows from financing activities:
Net payments (borrowings) of revolving credit facilities		(40,000	)		60,075
Repayment of 6.25% notes		—			(100,000	)
Proceeds from issuances of stock related to stock-based compensation plans		4,034			671
Increase in book overdrafts		6			820
Repurchase of Class A common stock		—			(163	)
Payment of debt issuance costs		(139	)		(210	)
Increase in amounts due from/to Cox Enterprises, Inc.		11,552			13,624

Net cash used in financing activities		(24,547	)		(25,183	)

Net increase in cash and cash equivalents		956			1,404
Cash and cash equivalents at beginning of period		4,202			4,681

Cash and cash equivalents at end of period	$	5,158		$	6,085

Supplemental disclosures of cash flow information:
Cash paid during the period for:
Interest	$	15,478		$	18,798
Income taxes		11,016			6,866

See notes to unaudited consolidated financial statements.

COX RADIO, INC.

NOTES TO UNAUDITED CONSOLIDATED FINANCIAL STATEMENTS

1. Basis of Presentation and Other Information

Cox Radio is a leading national radio broadcasting company whose business, which constitutes one reportable segment for accounting purposes, is devoted to acquiring, developing and operating radio stations located throughout the United States. Cox Enterprises, Inc. indirectly owns approximately 62% of the common stock of Cox Radio and has approximately 94% of the voting power of Cox Radio.

The accompanying unaudited consolidated financial statements have been prepared in accordance with accounting principles generally accepted in the United States of America for interim financial information and with the instructions to Form 10-Q and Article 10 of Regulation S-X. Accordingly, they do not include all of the information and footnote disclosures required by accounting principles generally accepted in the United States of America for complete financial statements. In the opinion of management, the financial statements reflect all adjustments considered necessary for a fair statement of the results of operations and financial position for the interim periods presented. All such adjustments are of a normal, recurring nature. These unaudited consolidated interim financial statements should be read in conjunction with the audited consolidated financial statements for the year ended December 31, 2003 and notes thereto contained in Cox Radio’s Annual Report on Form 10-K, filed with the Securities and Exchange Commission.

The results of operations for the three-month and six-month periods ended June 30, 2004 are not necessarily indicative of the results to be expected for the year ending December 31, 2004 or any other period.

2. Summary of Significant Accounting Policies

Cash Equivalents

Cox Radio considers all highly liquid investments with a maturity of three months or less when purchased to be cash equivalents. The carrying value of these investments approximates fair value.

Revenue Recognition

Cox Radio recognizes revenues when the following conditions are met: persuasive evidence of an arrangement exists; delivery has occurred or services have been rendered; the price is fixed and determinable; and collectibility is reasonably assured. These criteria are generally met for advertising revenue at the time an advertisement is broadcast. Advertising revenue is recorded net of advertising agency commissions. Cox Radio records an allowance for doubtful accounts based on historical information, analysis of credit memo data and any other relevant factors.

Corporate General and Administrative Expenses

Corporate general and administrative expenses consist of corporate overhead costs not specifically allocable to any of Cox Radio’s individual stations.

Property and Equipment

Property and equipment is stated at cost less accumulated depreciation. Depreciation is computed principally using the straight-line method at rates based upon estimated useful lives of 5 to 40 years for buildings and building improvements, 5 to 25 years for broadcast equipment, 7 to 10 years for furniture and fixtures and 2 to 5 years for computers, software and other equipment.

Expenditures for maintenance and repairs are charged to operating expense as incurred. At the time of retirements, sales or other dispositions of property, the original cost and related accumulated depreciation are written off.

Intangible Assets

Intangible assets consist primarily of Federal Communications Commission (FCC) broadcast licenses, but also include goodwill and certain other intangible assets acquired in purchase business combinations. Upon the adoption of Statement of Financial Accounting Standards (SFAS) No. 142, “Goodwill and Other Intangible Assets,” on January 1, 2002, Cox Radio ceased amortization of goodwill and FCC licenses, which are indefinite-lived intangible assets. Other intangible assets are amortized on a straight-line basis over the contractual lives of the assets.

Cox Radio evaluates its FCC licenses for impairment annually, or more frequently if events or changes in circumstances indicate that the asset might be impaired. FCC licenses are evaluated for impairment at the market level. If the carrying amount of FCC licenses is greater than their estimated fair value in a given market, the carrying amount of FCC licenses in that market is reduced to its estimated fair value. Cox Radio evaluates goodwill in each of its reporting units (markets) for impairment annually, or more frequently if certain circumstances are present. If the carrying amount of goodwill in a reporting unit is greater than the implied value of goodwill for that reporting unit determined from the estimated fair value of the reporting unit, the carrying amount of goodwill in that reporting unit is reduced to its estimated fair value.

Cox Radio utilizes independent appraisals in testing FCC licenses and goodwill for impairment. These appraisals principally use the discounted cash flow methodology. This income approach consists of a quantitative model, which incorporates variables such as market advertising revenues, market revenue share projections, anticipated operating profit margins and various discount rates. The variables used in the analysis reflect historical station and advertising market growth trends, as well as anticipated performance and market conditions. Multiples of operating cash flow are also considered. Cox Radio evaluates amortizing intangible assets for recoverability when circumstances indicate an impairment may have occurred, using an undiscounted cash flow methodology. If the future undiscounted cash flows for the intangible asset are less than net book value, net book value is reduced to the estimated fair value.

Other Assets

Other assets consist primarily of external costs incurred to facilitate signal upgrades, which enhance the value of Cox Radio’s FCC licenses. Upon completion of each signal upgrade, Cox Radio reclassifies the applicable amount to FCC licenses. During the first quarter of 2003, Cox Radio completed a signal upgrade at WBHK-FM in Birmingham, Alabama, and reclassified $5.4 million from other assets to FCC licenses. During the second quarter of 2004, Cox Radio completed a signal upgrade for WPYO-FM in Orlando, Florida and reclassified $2.4 million from other assets to FCC licenses

Impairment of Long-Lived Assets

Cox Radio accounts for long-lived assets in accordance with SFAS No. 144, “Accounting for the Impairment or Disposal of Long-Lived Assets.” Long-lived assets and certain intangibles are required to be reviewed for impairment when events or changes in circumstances indicate that the carrying amount of an asset may not be recoverable, with any impairment losses being reported in the period in which the recognition criteria are first applied based on the fair value of the asset. Cox Radio assesses the recoverability based on a review of estimated undiscounted cash flows. Long-lived assets and certain intangibles to be disposed of are required to be reported at the lower of carrying amount or fair value less cost to sell.

Income Taxes

Deferred income taxes are provided based on the liability method of accounting pursuant to SFAS No. 109, “Accounting for Income Taxes.” The liability method measures the expected tax impact of future taxable income or deductions resulting from differences in the tax and financial reporting bases of assets and liabilities reflected in the consolidated balance sheets and the expected tax impact of carryforwards for tax purposes. Cox Radio evaluates its effective tax rates regularly and adjusts rates when appropriate based on currently available information relative to statutory rates, apportionment factors and the applicable taxable income in the jurisdictions in which Cox Radio operates, among other factors.

Incentive Compensation Plans

Cox Radio accounts for stock compensation in accordance with the requirements of Accounting Principles Board Opinion No. 25, “Accounting for Stock Issued to Employees,” and related interpretations. SFAS No. 123, “Accounting for Stock-Based Compensation” as amended by SFAS No. 148, “Accounting for Stock-Based Compensation – Transition and Disclosure,” requires disclosure of the pro forma effects on net income and earnings per share as if Cox Radio had adopted the fair value recognition provisions of SFAS No. 123, as amended. Had compensation cost for the Long-Term Incentive Plan and the Employee Stock Purchase Plans (ESPP) been determined based on the fair value at the grant or enrollment dates in accordance with the fair value provisions of SFAS No. 123, as amended, Cox Radio’s net income and net income per share for the three months ended June 30, 2004 and 2003 would have been changed to the pro forma amounts indicated below.


	Three Months Ended June 30,						Six Months Ended June 30,
	2004			2003			2004			2003
	(Amounts in thousands, except per share data)
Net income, as reported	$	20,244		$	18,068		$	31,340		$	27,445
Deduct: stock-based employee compensation expense determined under fair value based method for all awards, net of related tax effects		(2,443	)		(2,525	)		(4,411	)		(4,458	)

Pro forma net income	$	17,801		$	15,543		$	26,929		$	22,987

Earnings per share:
Basic – as reported	$	0.20		$	0.18		$	0.31		$	0.27

Basic – pro forma	$	0.18		$	0.16		$	0.27		$	0.23

Diluted – as reported	$	0.20		$	0.18		$	0.31		$	0.27

Diluted – pro forma	$	0.18		$	0.15		$	0.27		$	0.23

Use of Estimates

The preparation of financial statements in conformity with accounting principles generally accepted in the United States of America requires management to make estimates and assumptions that affect the reported amounts of assets and liabilities and disclosure of contingent assets and liabilities at the date of the financial statements and the reported amounts of revenues and expenses during the reporting period. Actual results could differ from those estimates.

Concentration of Risk

A significant portion of Cox Radio’s business historically has been conducted in the Atlanta market. Net revenues earned from radio stations located in Atlanta represented 26% and 25% of total revenues for the three-month and six-month periods, respectively, ended June 30, 2004, and 26% and 25% of total revenues for the three-month and six-month periods, respectively, ended June 30, 2003.

Recent Accounting Pronouncements

In March 2004, the Emerging Issues Task Force (“EITF”) reached a consensus on Issue No. 03-1, “The Meaning of Other-Than-Temporary Impairment and Its Application to Certain Investments.” This consensus clarifies the meaning of other-than-temporary impairment and its application to investments classified as either available-for-sale or held-to-maturity under SFAS No. 115, “Accounting for Certain Investments in Debt and Equity Securities,” and investments accounted for under the cost method or the equity method. The application of this guidance should be used to determine when an investment is considered impaired, whether an impairment is other than temporary, and the measurement of an impairment loss. The guidance also includes accounting considerations subsequent to the recognition of an other-than-temporary impairment and requires certain disclosures about unrealized losses that have not been recognized as other-than-temporary impairments. The guidance for evaluating whether an investment is other-than-temporarily impaired is effective for evaluations made in reporting periods beginning after June 15, 2004. Cox Radio does not believe that the application of this consensus will have a material impact on Cox Radio’s results of operations or financial position.

Reclassifications

Certain prior year amounts have been reclassified for comparative purposes.

3. Earnings Per Common Share and Capital Structure


	Three Months Ended June 30,						Six Months Ended June 30,
	2004			2003			2004			2003
	(Amounts in thousands, except per share data)
Net income	$	20,244		$	18,068		$	31,340		$	27,445

Earnings per share – basic
Weighted average common shares outstanding		100,544			100,217			100,537			100,208

Net income per common share – basic	$	0.20		$	0.18		$	0.31		$	0.27

Earnings per share – diluted
Weighted average common shares outstanding		100,544			100,217			100,537			100,208
Shares issuable on exercise of dilutive options		574			3,548			3,495			3,548
Shares assumed to be purchased with proceeds of options		(410	)		(3,184	)		(3,296	)		(3,198	)
Shares issuable on exercise of restricted stock		—			—			128			—
Shares assumed to be purchased with proceeds of restricted stock		—			—			(124	)		—
Shares issuable pursuant to Employee Stock Purchase Plan		—			209			149			209
Shares assumed to be purchased with proceeds from Employee Stock Purchase Plan		—			(168	)		(145	)		(169	)

Shares applicable to earnings per share – diluted		100,708			100,622			100,744			100,598

Net income per common share - diluted	$	0.20		$	0.18		$	0.31		$	0.27

The options and ESPP purchase rights excluded from the computation of net income per common share - diluted for the three-month and six-month periods ended June 30, 2004 and 2003 are summarized below. The exercise price of these options and the subscription price of these purchase rights were greater than the average market price of the Class A common stock during the three-month and six-month periods ended June 30, 2004 and 2003.


	Three Months Ended June 30,		Six Months Ended June 30,
	2004	2003	2004	2003
	(Amounts in thousands)
Options and ESPP purchase rights outstanding	6,115	2,287	3,065	2,287

In 2004, Cox Radio implemented a new long-term incentive award format for selected officers and senior executives that will consist of a mix of stock options and performance-based restricted stock awards. Awards of performance-based restricted stock are dependent upon the achievement of pre-established performance criteria. Once granted, performance-based restricted stock awards normally become 100% vested five years after the date of grant. As long as the recipient is employed by Cox Radio or its affiliates, 60% of the shares obtained through performance-based restricted stock awards will remain restricted from resale or transfer. Cox Radio recognizes compensation cost related to restricted stock awards, as the exercise price of the awards is less than the market value of the underlying common stock on the grant date.

4. Long-Term Debt, Commitments and Contingencies

Cox Radio’s outstanding debt for the periods presented consists of the following:


	June 30, 2004		December 31, 2003
	(Amounts in thousands)
6.375% notes payable, due in May 2005 (1)	$	99,962	$	99,942
6.625% notes payable, due in February 2006 (2)		249,848		249,802
Revolving credit facility		145,000		185,000

Total long-term debt	$	494,810	$	534,744

(1)

At June 30, 2004 and December 31, 2003, the estimated aggregate fair value of the 6.375% notes was approximately $103.1 million and $106.2 million, respectively, based on quoted market prices. The 6.375% notes due on May 15, 2005 were excluded from current liabilities because Cox Radio intends to refinance this obligation on a long-term basis and currently has the ability to do so under its new five-year credit facility. This credit facility had unused capacity of $355 million as of June 30, 2004. Cox Radio may also refinance this obligation through the issuance of debt or equity securities depending on market conditions and other factors.

(2)	At June 30, 2004 and December 31, 2003, the estimated aggregate fair value of these notes was approximately $262.8 million and $269.9 million, respectively, based on quoted market prices.

On June 4, 2004, Cox Radio replaced its existing $350 million, five-year senior unsecured revolving credit facility and $150 million 364-day senior unsecured revolving credit facility with a $500 million, five-year senior unsecured revolving credit facility. The interest rate for the new five-year facility is, at Cox Radio’s option:

•

the greater of the prime rate or the federal funds borrowing rate plus 0.5%;

•

the London Interbank Offered Rate plus a spread based on the credit ratings of Cox Radio’s senior long-term debt;

•

the bid rate for the purchase of certificates of deposit of equal principal amount and maturity plus a spread based on the credit ratings of Cox Radio’s senior long-term debt; or

•

the federal funds borrowing rate plus a spread based on the credit ratings of Cox Radio’s senior long-term debt.

The new five-year facility includes commitment fees on the unused portion of the total amount available, which fees range from 0.10% to 0.25% depending on the credit rating of Cox Radio’s senior long-term debt. The five-year facility contains, among other provisions, specified leverage and interest coverage requirements, the terms of which are defined within the credit facility. At June 30, 2004, Cox Radio was in compliance with these covenants. Cox Radio’s credit facility contains events of default based on (i) the failure to pay when due other debt, the outstanding amount of which exceeds $25 million, after the expiration of applicable grace periods and (ii) the acceleration of other debt, the outstanding amount of which exceeds $25 million. Cox Radio is not in default under its credit facility. As a result of its business operations, Cox Radio may generate excess cash which could from time to time be used to repay amounts outstanding under the revolving credit facility. At June 30, 2004, Cox Radio had $145 million of outstanding indebtedness under the five-year facility with $355 million available. The interest rate applied to amounts due under the bank credit facility was 1.8% at June 30, 2004. At December 31, 2003, Cox Radio had approximately $185 million of outstanding indebtedness under the old five-year facility with $165 million available, and no amounts outstanding under the old 364-day facility with $150 million available. The interest rate applied to amounts due under the bank credit facilities was 1.8% at December 31, 2003. Since the interest rate is variable, the recorded balance of the credit facilities approximates fair value. See Note 5 for a discussion of Cox Radio’s interest rate swap agreements.

Cox Radio has an effective universal shelf registration statement under which Cox Radio may from time to time offer and issue debentures, notes, bonds and other evidence of indebtedness and forward contracts in respect of any such indebtedness, shares of preferred stock, shares of Class A common stock, warrants, stock purchase contracts, stock purchase units and stock purchase rights, and two financing trusts sponsored by Cox Radio may offer and issue preferred securities of the trusts for an original maximum aggregate offering amount of $750 million. Unless otherwise described in future prospectus supplements, Cox Radio intends to use the net proceeds from the sale of securities registered under this universal shelf registration statement for general corporate purposes, which may include additions to working capital, the repayment or redemption of existing indebtedness and the financing of capital expenditures and acquisitions. At June 30, 2004 and December 31, 2003, $244.8 million was available under the universal shelf registration statement.

In April 2000, Cox Radio entered into a JSA for KGMZ-FM serving Honolulu, Hawaii and simultaneously guaranteed Honolulu Broadcasting, Inc.’s financing for the acquisition of this station in the amount of $6.6 million. In February 2001, Cox radio entered

into another JSA agreement with Honolulu Broadcasting to provide sales and marketing services for WARV-FM, serving Richmond, Virginia, and simultaneously guaranteed Honolulu Broadcasting’s financing for the acquisition of this station in the amount of $1.0 million. The total guarantee at December 31, 2002 was $7.6 million.

During February 2003, Honolulu Broadcasting sold WARV-FM, terminating the related JSA and repaid the indebtedness of $1.0 million. This reduced the amount of Cox Radio’s guarantee from $7.6 million to $6.6 million.

At June 30, 2004, the guarantee of certain senior debt of Honolulu Broadcasting totaled $6.6 million. This debt consists of a one-year renewable term loan secured by the assets of KGMZ-FM, the proceeds of which were used by Honolulu Broadcasting to finance the purchase of this station. Cox Radio provides sales and marketing services under a JSA to this station pursuant to which Cox Radio sells advertising on the station, which it records as revenues, provides marketing services for the station, and pays a JSA fee to Honolulu Broadcasting in an amount sufficient to service this debt.

Cox Radio is subject to various federal and state income tax audits. Cox Radio anticipates reaching a conclusion with the IRS related to the audit of its 1998-2001 federal income tax returns. While the final outcome of this audit is not certain, management expects to pay a net amount of approximately $25 million for adjustments arising during the audit related to certain radio station transactions consummated during the audit period. Cox Radio has previously provided for the possibility of this outcome. In addition, given the nature of these adjustments as temporary differences, Cox Radio has recognized current income tax expense of approximately $18 million, which has been offset by a deferred income tax benefit of approximately $18 million, during the quarter ended June 30, 2004, to reclassify the portion of the anticipated payment from deferred income taxes payable to current income taxes payable. Cox Radio anticipates the audit will be concluded during the second half of 2004 and, as such, has classified the anticipated net payment as current income taxes payable on its Consolidated Balance Sheet at June 30, 2004.

On June 13, 2001, Cox Radio was named as defendant in a putative class action suit filed in an amended complaint in the state court in Fulton County, Georgia, alleging violations of the Federal Telephone Consumer Protection Act (TCPA). The complaint seeks statutory damages in the amount of $1,500, plus attorneys’ fees, on behalf of each person “throughout the State of Georgia” who received an unsolicited pre-recorded telephone message delivering an “unsolicited advertisement” from a Cox Radio radio station. Cox Radio filed an answer to the complaint denying liability and asserting numerous defenses. Thereafter, proceedings in this case were stayed pending rulings by the Georgia Court of Appeals in a similar action pending against a third-party radio broadcast company. This stay was lifted on August 13, 2003 following rulings by the Court of Appeals in the third-party case directing the trial court to consider certain constitutional defenses raised by the defendant. On July 3, 2003, the FCC issued a Report and Order holding, among other things, that pre-recorded telephone messages by broadcasters made for the purpose of inviting consumers to listen to a free broadcast are not “unsolicited advertisements” prohibited by the TCPA. On July 28, 2003, Cox Radio requested that the plaintiffs voluntarily dismiss their claims in light of the FCC’s Report and Order. Plaintiffs subsequently refused this request, and on October 24, 2003, Cox Radio filed a motion for judgment on the pleadings seeking the dismissal of plaintiffs’ claims on grounds that the calls in question were permissible under the TCPA and the FCC’s implementing rules and, alternatively, that the application of the TCPA to the facts of this case would violate Cox Radio’s constitutional rights to free speech, equal protection and due process. On February 3, 2004, plaintiffs filed a second amended complaint in support of their contention that the messages at issue were not exempted by the terms of the FCC Report and Order. On March 25, 2004, the court entered an order ruling that the calls at issue were not prohibited by the TCPA and its implementing regulations, granting Cox Radio’s motion for judgment on the pleadings, and dismissing the plaintiffs’ claims. Plaintiffs filed a notice of appeal from these rulings on April 21, 2004. Cox Radio intends to continue to defend this action vigorously. At the present time, Cox Radio cannot reasonably estimate the possible loss or range of loss with respect to this lawsuit. The outcome of this matter cannot be predicted at this time.

Cox Radio is a party to various other legal proceedings that are ordinary and incidental to its business. Management does not expect that any of these legal proceedings currently pending will have a material adverse impact on Cox Radio’s consolidated financial position, consolidated results of operations or cash flows.

5. Derivative Instruments and Hedging Activities

Cox Radio is exposed to fluctuations in interest rates. Cox Radio actively monitors these fluctuations and uses derivative instruments from time to time to manage such risk. In accordance with its risk management strategy, Cox Radio uses derivative instruments only for the purpose of managing risk associated with an asset, liability, committed transaction or probable forecasted transaction that is identified by management. Cox Radio’s use of derivative instruments may result in short-term gains or losses and may increase volatility in its earnings.

Cox Radio had two interest rate swap agreements outstanding as of June 30, 2004, each of which is used to manage its exposure to the variability of future cash flows related to certain of its floating rate interest obligations that may result due to changes in interest rates. The counterparties to these interest rate swap agreements are major financial institutions. Cox Radio is exposed to credit loss in the event of nonperformance by these counterparties. However, Cox Radio does not anticipate nonperformance by these counterparties.

Under SFAS No. 133, as amended, “Accounting for Derivative Instruments and Hedging Activities,” as amended by SFAS No. 137, “Accounting for Derivative Instruments and Hedging Activities - Deferral of the Effective Date of SFAS No. 133,” SFAS No. 138, “Accounting for Certain Derivative Instruments and Certain Hedging Activities,” and SFAS No. 149, “Amendment of Statement 133 on Derivative Instruments and Hedging Activities,” the accounting for changes in the fair values of derivative instruments at each new measurement date is dependent upon their intended use. The effective portion of changes in the fair values of derivative instruments designated as hedges of forecasted transactions, referred to as cash flow hedges, are deferred and recorded as a component of accumulated other comprehensive income until the hedged forecasted transactions occur and are recognized in earnings. The ineffective portion of changes in the fair values of derivative instruments designated as cash flow hedges are immediately reclassified to earnings. The differential paid or received on the interest rate swap agreements is recognized as an adjustment to interest expense. Cox Radio’s two interest rate swap agreements qualify as cash flow hedges.

During the three-month and six-month periods ended June 30, 2004 and 2003, there was no ineffective portion related to the changes in fair values of the interest rate swap agreements and there were no amounts excluded from the measure of effectiveness. For the six-month period ended June 30, 2004, approximately $103,000, before related income tax effects of approximately $44,000, were reclassified into earnings as interest expense. The balance of $0.9 million recorded in accumulated other comprehensive loss at June 30, 2004 is expected to be reclassified into future earnings, contemporaneously with and offsetting changes in interest expense on certain of Cox Radio’s floating rate interest obligations. The estimated amount to be reclassified into future earnings as interest expense over the twelve months ending June 30, 2005 is approximately $0.1 million, before related income tax effects of approximately $0.1 million. The actual amount that will be reclassified to future earnings over the next twelve months may vary from this amount as a result of changes in market conditions related to interest rates.

At June 30, 2004, $50 million notional principal amount of interest rate swap agreements was outstanding at an average annual fixed rate of 6.3% and an average remaining maturity of two years. The estimated fair value of these swap agreements, based on current market rates, approximated a net payable $2.4 million at June 30, 2004 and $3.9 million at December 31, 2003. The fair value of the swap agreements at June 30, 2004 is included in other current liabilities and other long-term liabilities according to the respective maturity dates of the swaps.

6. Goodwill and Other Intangible Assets

On January 1, 2002, Cox Radio adopted SFAS No. 142, which requires that goodwill and certain intangible assets, including FCC licenses, no longer be amortized but instead be tested for impairment at least annually. Cox Radio’s annual impairment testing date is January 1st.

During the first quarter of 2004, Cox Radio performed its annual tests for impairment, and based on independent appraisals, no impairment of either FCC licenses or goodwill was indicated.

The following table reflects the components of intangible assets for the periods indicated:


	Gross Carrying Value		Accumulated Amortization		Net Carrying Value
	(Amounts in thousands)
June 30, 2004
FCC licenses and other intangible assets, net	$	2,031,729	$	529	$	2,031,200
Goodwill		46,033		—		46,033

December 31, 2003
FCC licenses and other intangible assets, net		2,029,298		500		2,028,798
Goodwill		46,033		—		46,033

During the second quarter of 2004, Cox Radio completed a signal upgrade for WPYO-FM in Orlando, Florida and reclassified $2.4 million from other assets to FCC licenses.

ITEM 2. Management’s Discussion and Analysis of Financial Condition and Results of Operations

This report contains “forward-looking” statements within the meaning of Section 21E of the Securities Exchange Act of 1934, as amended. These forward-looking statements include, among others, statements that relate to Cox Radio’s future plans, earnings, objectives, expectations, performance, and similar projections, as well as any facts or assumptions underlying these statements or projections. Actual results may differ materially from the results expressed or implied in these forward-looking statements, due to various risks, uncertainties or other factors. These factors include competition within the radio broadcasting industry, advertising demand in our markets, the possibility that advertisers may cancel or postpone schedules in response to political events, competition for audience share, our success in executing and integrating acquisitions, and our ability to generate sufficient cash flow to meet our debt service obligations and finance operations. For a more detailed discussion of these and other risk factors, see the Risk Factors section of Cox Radio’s Annual Report on Form 10-K for the year ended December 31, 2003. Cox Radio assumes no responsibility to update any forward-looking statements as a result of new information, future events or otherwise.

General

Cox Radio is a leading national radio broadcast company whose business is acquiring, developing and operating radio stations located throughout the United States. Cox Enterprises indirectly owns approximately 62% of the common stock of Cox Radio and has approximately 94% of the voting power of Cox Radio.

The primary source of Cox Radio’s revenues is the sale of local and national advertising to be broadcast on its radio stations. Historically, approximately 73% and 22% of Cox Radio’s net revenues have been generated from local and national advertising, respectively. Cox Radio’s most significant station operating expenses are employees’ salaries and benefits, commissions, programming expenses and advertising and promotional expenditures.

Cox Radio’s revenues vary throughout the year. As is typical in the radio broadcasting industry, Cox Radio’s revenues and operating income are generally lowest in the first quarter. Cox Radio’s operating results in any period may be affected by the incurrence of advertising and promotional expenses that do not necessarily produce commensurate revenues until the impact of the advertising and promotion is realized in future periods.

Acquisitions and Dispositions

Historically, Cox Radio has actively managed its portfolio of radio stations through selected acquisitions, dispositions and exchanges, as well as through the use of local marketing agreements, or LMAs, and joint sales agreements, or JSAs. Under an LMA or a JSA, the company operating a station provides programming or sales and marketing or a combination of such services on behalf of the owner of a station. The broadcast revenues and operating expenses of stations operated by us under LMAs and JSAs have been included in Cox Radio’s operations since the respective effective dates of such agreements.

During the six months ended June 30, 2004 and 2003, Cox Radio did not enter into or consummate any acquisitions or dispositions.

Results of Operations

Cox Radio’s results of operations represent the operations of the radio stations owned or operated by Cox Radio, or for which it provides sales and marketing services, during the applicable periods. The following discussion should be read in conjunction with the accompanying consolidated financial statements and the related notes included in this report.

Three months ended June 30, 2004 compared to three months ended June 30, 2003:


	June 30, 2004		June 30, 2003		$ Change			% Change
	(Amounts in thousands)
Net revenues:
Local	$	84,252	$	83,020	$	1,232		1.5	%
National		25,155		26,010		(855	)	(3.3	)%
Other		7,468		6,216		1,252		20.1	%

Total net revenues	$	116,875	$	115,246	$	1,629		1.4	%

Net revenues are gross revenues less agency commissions. Local revenues are comprised of advertising sales made within a station’s local market or region either directly with the advertiser or through the advertiser’s agency. National revenues represent sales made to advertisers/agencies who are purchasing advertising for multiple markets; these sales are typically facilitated by our national representation firm, which serves as our sales agent in these transactions. Other revenues are comprised of Internet revenues, syndicated radio program revenues, network revenues and revenues from community events and sponsorships.

Net revenues for the second quarter of 2004 increased $1.6 million to $116.9 million, a 1.4% increase compared to the second quarter of 2003. Local revenues improved in the second quarter of 2004, increasing 1.5% over the second quarter of 2003, while national revenues were down 3.3% compared to the second quarter of 2003. Our stations in Atlanta, Orlando, Tampa, Richmond, Southern Connecticut and Greenville-Spartanburg delivered solid growth during the second quarter of 2004, while our stations in Miami, Houston, San Antonio and Louisville were down for the quarter.


	June 30, 2004		June 30, 2003		$ Change			% Change
	(Amounts in thousands)
Cost of services (exclusive of depreciation and amortization shown separately below)	$	24,993	$	25,434	$	(441	)	(1.7	)%

Cost of services is comprised of expenses incurred by our technical, news and programming departments. Cost of services for the second quarter of 2004 decreased $0.5 million to $25.0 million compared to the second quarter of 2003 primarily as a result of a decrease in music license fees and research costs.


	June 30, 2004		June 30, 2003		$ Change			% Change
	(Amounts in thousands)
Selling, general and administrative expenses	$	42,612	$	43,296	$	(684	)	(1.6	)%

Selling, general and administrative expenses are comprised of our sales, promotion and general and administrative departments. Selling, general and administrative expenses decreased approximately $0.7 million in the second quarter of 2004 compared to the second quarter of 2003 primarily as a result of a decrease in promotional spending, specifically in Miami and Honolulu.


	June 30, 2004		June 30, 2003		$ Change			% Change
	(Amounts in thousands)
Corporate general and administrative expenses	$	4,634	$	4,400	$	234		5.3	%
Depreciation		2,892		2,977		(85	)	(2.9	)%
Amortization		13		29		(16	)	(55.2	)%
Other operating expenses, net		69		29		40		137.9	%

The increase in corporate general and administrative expenses can be attributed to the reversal of an accrual as a result of the settlement of the Force Communications litigation during second quarter of 2003. The changes in depreciation, amortization or other operating expenses were not material to Cox Radio’s overall operating results or financial condition.


	June 30, 2004		June 30, 2003		$ Change		% Change
	(Amounts in thousands)
Operating income	$	41,662	$	39,081	$	2,581	6.6	%

Operating income for the second quarter of 2004 was $41.7 million, a $2.6 million increase over the second quarter of 2003 for the reasons discussed above.


	June 30, 2004		June 30, 2003		$ Change			% Change
	(Amounts in thousands)
Interest expense	$	7,710	$	8,877	$	(1,167	)	(13.1	)%

Interest expense during the second quarter of 2004 totaled $7.7 million, as compared to $8.9 million for the second quarter of 2003. This was as a result of lower overall outstanding debt, as well as a lower average borrowing rate due to the repayment at maturity of the $100.0 million principal amount of our 6.25% notes in the second quarter of 2003 with proceeds from our five-year revolving credit facility. The average rate on our credit facility was 1.8% during the second quarter of 2004 and, in turn, contributed to the overall decrease in interest expense.


	June 30, 2004			June 30, 2003		$ Change			% Change
	(Amounts in thousands)
Income tax expense:
Current	$	25,733		$	6,143	$	19,590		318.9	%
Deferred		(12,112	)		5,879		(17,991	)	(306.0	)%

Total income tax expense	$	13,621		$	12,022	$	1,599		13.3	%

Income tax expense increased approximately $1.6 million to $13.6 million in the second quarter of 2004 compared to $12.0 million in the second quarter of 2003, primarily as a result of the increase in operating income and a decrease in interest expense, as discussed above. In connection with the conclusion of income tax audits for the years 1998 – 2001, Cox Radio expects to pay approximately $25 million related to certain radio station transactions completed during the audit period. Cox Radio has previously provided for the possibility of this outcome. As management expects to make this payment during the second half of 2004, Cox Radio has reclassified approximately $18 million of deferred tax liabilities, the amount not already classified as current, into income taxes payable resulting in a corresponding reclassification between deferred tax expense and current tax expense. The effective tax rate for the second quarter of 2004 and 2003 was 40.2%.


	June 30, 2004		June 30, 2003		$ Change		% Change
	(Amounts in thousands)
Net income	$	20,244	$	18,068	$	2,176	12.0	%

Net income for the second quarter of 2004 was $20.2 million compared to $18.1 million for the second quarter of 2003 for the reasons discussed above.

Six months ended June 30, 2004 compared to six months ended June 30, 2003:


	June 30, 2004	June 30, 2003	$ Change	% Change
	(Amounts in thousands)
Net revenues:
Local	$151,097	$149,959	$1,138	0.8%
National	44,957	45,268	(311)	(0.7)%
Other	13,912	11,588	2,324	20.1%

Total net revenues	$209,966	$206,815	$3,151	1.5%

Net revenues for the first six months of 2004 increased $3.2 million to $210.0 million, a 1.5% increase compared to the first six months of 2003. Local revenues improved in the first six months of 2004, increasing 0.8% over the first six months of 2003, while

national revenues were down 0.7% compared to the first six months of 2003. Our stations in Atlanta, Orlando, Tampa, Richmond, Southern Connecticut and Greenville-Spartanburg delivered solid growth during the first six months of 2004, while our stations in Miami, Houston, San Antonio and Louisville were down for the period.


	June 30, 2004		June 30, 2003		$ Change		% Change
	(Amounts in thousands)
Cost of services (exclusive of depreciation and amortization shown separately below)	$	46,710	$	46,654	$	56	0.1	%

Cost of services for the first six months of 2004 increased $0.1 million to $46.7 million compared to the first six months of 2003.


	June 30, 2004		June 30, 2003		$ Change			% Change
	(Amounts in thousands)
Selling, general and administrative expenses	$	79,970	$	81,506	$	(1,536	)	(1.9	)%

Selling, general and administrative expenses decreased approximately $1.5 million in the first six months of 2004 compared to the first six months of 2003 primarily as a result of additional expenses incurred during first six months of 2003 related to competitive situations in Atlanta, Miami and Birmingham and the related reformat of WFOX-FM in Atlanta and a decrease in promotional spending, specifically in Miami and Honolulu, during 2004.


	June 30, 2004		June 30, 2003		$ Change			% Change
	(Amounts in thousands)
Corporate general and administrative expenses	$	9,179	$	8,635	$	544		6.3	%
Depreciation		5,852		5,921		(69	)	(1.2	)%
Amortization		31		59		(28	)	(47.5	)%
Other operating expenses, net		69		28		41		146.4	%

The increase in corporate general and administrative expenses can be attributed to higher insurance rates as well as professional fees related to evaluating, testing and documenting our internal control in connection with Sarbanes-Oxley readiness and compliance. The changes in depreciation, amortization or other operating expenses were not material to Cox Radio’s overall operating results or financial condition.


	June 30, 2004		June 30, 2003		$ Change		% Change
	(Amounts in thousands)
Operating income	$	68,155	$	64,012	$	4,143	6.5	%

Operating income for the first six months of 2004 was $68.2 million, a $4.1 million increase over the first six months of 2003 for the reasons discussed above.


	June 30, 2004		June 30, 2003		$ Change			% Change
	(Amounts in thousands)
Interest expense	$	15,601	$	18,053	$	(2,452	)	(13.6	)%

Interest expense during the first six months of 2004 totaled $15.6 million, as compared to $18.1 million for the first six months of 2003. This was as a result of lower overall outstanding debt, as well as a lower average borrowing rate due to the repayment at maturity of the $100.0 million principal amount of our 6.25% notes in the first six months of 2003 with proceeds from our five-year revolving credit facility. The average rate on our credit facility was 1.8% during the first six months of 2004 and, in turn, contributed to the overall decrease in interest expense.


	June 30, 2004			June 30, 2003		$ Change			% Change
	(Amounts in thousands)
Income tax expense:
Current	$	29,992		$	9,487	$	20,505		216.1	%
Deferred		(8,964	)		8,790		(17,754	)	(202.0	)%

Total income tax expense	$	21,028		$	18,277	$	2,751		15.1	%

Income tax expense increased approximately $2.8 million to $21.0 million in the first six months of 2004 compared to $18.3 million in the first six months of 2003, primarily as a result of the increase in operating income and a decrease in interest expense, as discussed above. Also discussed above, in the second quarter of 2004, Cox Radio reclassified approximately $18 million of deferred tax liabilities into income taxes payable resulting in a corresponding reclassification between deferred tax expense and current tax expense. The effective tax rate for the first six months of 2004 and 2003 was 40.1%.


	June 30, 2004		June 30, 2003		$ Change		% Change
	(Amounts in thousands)
Net income	$	31,340	$	27,445	$	3,895	14.2	%

Net income for the first six months of 2004 was $31.3 million compared to $27.4 million for the first six months of 2003 for the reasons discussed above.

Liquidity and Capital Resources

Sources and Uses of Liquidity

Cox Radio’s primary sources of liquidity are cash provided by operations and through borrowings under its bank credit facility. Net cash from operations results primarily from net income adjusted for non-cash items, including depreciation and amortization, deferred income taxes, gains or losses on sales of radio stations and changes in working capital accounts. In comparing the six months ended June 30, 2004 to the six months ended June 30, 2003, net cash provided by operating activities decreased $5.8 million due to changes in working capital. Primary uses of liquidity include debt service, acquisitions, capital expenditures and investment in signal upgrades.

Cox Radio has an effective universal shelf registration statement under which it may from time to time offer and issue debentures, notes, bonds and other evidence of indebtedness and forward contracts in respect of any such indebtedness, shares of preferred stock, shares of Class A common stock, warrants, stock purchase contracts, stock purchase units and stock purchase rights, and two financing trusts sponsored by Cox Radio may offer and issue preferred securities of the trusts. At June 30, 2004 and December 31, 2003, $244.8 million was available under the universal shelf registration statement.

In addition, daily cash management needs have been funded through intercompany advances from Cox Enterprises. Our borrowings from Cox Enterprises are due on demand, but typically repaid within 30 days. Cox Enterprises continues to perform day-to-day cash management services for us. On December 4, 2003, we entered into a revolving promissory note with Cox Enterprises to define the intercompany borrowing rate as Cox Enterprises’ current commercial paper borrowing rate (1.2% at June 30, 2004). Prior to amending the intercompany note in December 2003, advances from Cox Enterprises accrued interest at Cox Enterprises’ commercial paper borrowing rate plus 40 basis points (1.8% at June 30, 2003). Cox Radio owed Cox Enterprises approximately $5.3 million at June 30, 2004, and Cox Enterprises owed Cox Radio approximately $6.3 million at December 31, 2003.

Future cash requirements are expected to include capital expenditures, principal and interest payments on indebtedness and funds for acquisitions. Cox Radio expects its operations to generate sufficient cash to meet its capital expenditures and debt service requirements. Additional cash requirements, including funds for acquisitions, will be funded from various sources, including the proceeds from bank financing, intercompany advances from Cox Enterprises and, if or when appropriate, other issuances of securities.

Debt Service

•

the greater of the prime rate or the federal funds borrowing rate plus 0.5%;

•

the London Interbank Offered Rate plus a spread based on the credit ratings of Cox Radio’s senior long-term debt;

•

the bid rate for the purchase of certificates of deposit of equal principal amount and maturity plus a spread based on the credit ratings of Cox Radio’s senior long-term debt; or

•

the federal funds borrowing rate plus a spread based on the credit ratings of Cox Radio’s senior long-term debt.

In May 2003, the $100 million principal amount of the 6.25% notes was repaid at maturity using funds from the five-year revolving credit facility. Cox Radio currently has $350 million in outstanding debt securities, as described below (dollar amounts in thousands):


Principal Amount			Interest Rate		Maturity
$	100,000	(1)	6.375	%	May 2005
$	250,000	(2)	6.625	%	February 2006

(1)

(2)	At June 30, 2004 and December 31, 2003, the estimated aggregate fair value of these notes was approximately $262.8 million and $269.9 million, respectively, based on quoted market prices.

Off-Balance Sheet Arrangements

Cox Radio’s off-balance sheet arrangements consist primarily of lease commitments and contracts for sports programming and on-air personalities and the guarantee discussed below. Cox Radio does not have any majority-owned subsidiaries that are not included in its consolidated financial statements, nor does Cox Radio have any interests in or relationships with any variable interest entities.

Impact of Inflation

The impact of inflation on our operations has not been significant to date. However, there can be no assurance that a high rate of inflation in the future would not have an adverse impact on our operating results.

ITEM 3. Quantitative and Qualitative Disclosure About Market Risk

Cox Radio is exposed to a number of financial market risks in the ordinary course of business. Cox Radio’s primary financial market risk exposure pertains to changes in interest rates.

Cox Radio has examined exposures to these risks and concluded that none of the exposures in these areas are material to cash flows or earnings. Cox Radio has engaged in several strategies to manage these market risks. Cox Radio’s indebtedness under its various financing arrangements creates interest rate risk. In connection with each debt issuance and as a result of continual monitoring of interest rates, Cox Radio has entered into interest rate swap agreements for purposes of managing borrowing costs.

Pursuant to the interest rate swap agreements, Cox Radio has exchanged its floating rate interest obligations on an aggregate of $50 million in notional principal amount of debt for fixed interest rates. These agreements have an average annual fixed rate of 6.3% and an average remaining maturity of two years. Concurrently with the adoption of SFAS No. 133, “Accounting for Derivative Instruments and Hedging Activities,” in January 2001, Cox Radio formally designated these agreements as cash flow hedges as discussed in Note 5 to the consolidated financial statements included herein. Cox Radio is exposed to a credit loss in the event of nonperformance by the counterparties to the interest rate swap agreements. However, Cox Radio does not anticipate nonperformance by such counterparties, and no material loss would be expected in the event of the counterparties’ nonperformance. The estimated fair value of the swap agreements, based on current market rates, approximated a net payable of $2.4 million at June 30, 2004 and $3.9 million at December 31, 2003. The fair value of the swap agreements at June 30, 2004 is included in other current liabilities and other long-term liabilities according to the respective maturity dates of the swaps. The market risk for the interest rate swaps is mitigated as the variable rate received is hedged to the variable rate paid on the credit facility.

The determination of the estimated fair value of Cox Radio’s fixed-rate debt is subject to the effects of interest rate risk. The estimated fair value of the fixed-rate debt instruments at June 30, 2004 was $365.8 million, compared to a carrying amount of $349.8 million. The estimated fair value of Cox Radio’s fixed-rate debt instruments at December 31, 2003 was $376.1 million, compared to a carrying amount of $349.7 million. The effect of a hypothetical one percentage point decrease in interest rates would be to increase the estimated fair value of the fixed-rate debt instruments from $365.8 million to $370.8 million at June 30, 2004, and from $376.1 million to $382.9 million at December 31, 2003.

The estimated fair values of debt instruments are based on discounted cash flow analyses using Cox Radio’s borrowing rates for similar types of borrowing arrangements and dealer quotations. The revolving credit facilities and Cox Enterprises’ borrowings bear interest based on current market rates and, thus, approximate fair value. Cox Radio is exposed to interest rate volatility with respect to the foregoing variable rate debt instruments.

With respect to financial instruments, Cox Radio has estimated the fair values of such instruments using available market information and valuation methodologies that it believes to be appropriate. Considerable judgment, however, is required in interpreting market data to develop the estimates of fair value. Accordingly, the estimates presented herein are not necessarily indicative of the amounts that Cox Radio would realize or pay in a current market exchange.

ITEM 4. Controls and Procedures

The Chief Executive Officer and the Chief Financial Officer of Cox Radio (its principal executive officer and principal financial officer, respectively) have concluded, based on their evaluation as of June 30, 2004, the end of the fiscal quarter to which this report relates, that Cox Radio’s disclosure controls and procedures: are effective to ensure that information required to be disclosed by Cox Radio in the reports filed or submitted by it under the Securities Exchange Act of 1934, as amended, is recorded, processed, summarized and reported within the time periods specified in the SEC’s rules and forms; and include controls and procedures designed to ensure that information required to be disclosed by Cox Radio in such reports is accumulated and communicated to Cox Radio’s management, including the Chief Executive Officer and the Chief Financial Officer, as appropriate to allow timely decisions regarding required disclosure.

There were no changes in Cox Radio’s internal control over financial reporting during the period covered by this report that materially affected, or were reasonably likely to materially affect, Cox Radio’s internal control over financial reporting.

Cox Radio’s disclosure controls and procedures are designed to provide a reasonable level of assurance of reaching Cox Radio’s desired disclosure objectives and are effective in reaching that level of reasonable assurance.

PART II - OTHER INFORMATION

ITEM 1. Legal Proceedings

ITEM 2. Changes in Securities, Use of Proceeds and Issuer Purchases of Equity Securities

None.

ITEM 3. Defaults Upon Senior Securities

None.

ITEM 4. Submission of Matters to a Vote of Security Holders

Cox Radio held its Annual Meeting of Stockholders on May 11, 2004. Three matters were voted upon at the meeting: (a) the election of a Board of Directors of eight members to serve until the 2005 Annual Meeting or until their successors are duly elected and qualified; (b) approval of Cox Radio’s 2004 Employee Stock Purchase Plan; and (c) approval of Cox Radio’s Second Amended and Restated Long-Term Incentive Plan.

The following directors were elected, and they received the votes indicated:


Nominee	Votes in Favor	Votes Withheld
James C. Kennedy	610,578,612	9,226,954
Juanita P. Baranco	616,656,111	3,149,455
G. Dennis Berry	610,424,838	9,380,728
Richard A. Ferguson	609,684,272	10,121,294
Paul M. Hughes	617,325,776	2,479,790
Marc W. Morgan	609,685,538	10,120,028
Robert F. Neil	610,523,912	9,281,654
Nicholas D. Trigony	608,893,098	10,912,468

The 2004 Employee Stock Purchase Plan was approved, with 614,087,198 votes in favor, 1,202,385 votes in opposition, 5,332 abstentions, and 4,510,651 broker non-votes.

The Second Amended and Restated Long-Term Incentive Plan was approved, with 609,624,656 votes in favor, 5,659,109 votes in opposition, 11,150 abstentions, and 4,510,651 broker non-votes.

ITEM 5. Other Information

None.

ITEM 6. Exhibits and Reports on Form 8-K

(a)

Exhibits:

Listed below are the exhibits, which are filed as part of this Report (according to the number assigned to them in Item 601 of Regulation S-K):


Exhibit Number		Description

⁽¹⁾ 3.1	—	Amended and Restated Certificate of Incorporation of Cox Radio, Inc.

⁽²⁾ 3.2	—	Certificate of Amendment to Certificate of Incorporation of Cox Radio, Inc.

⁽³⁾ 3.3	—	Amended and Restated Bylaws of Cox Radio, Inc.

4.1	—	Indenture dated as of May 26, 1998 by and among Cox Radio, Inc. The Bank of New York, WSB, Inc. and WHIO, Inc.

⁽⁴⁾ 4.2	—	First Supplemental Indenture dated as of February 1, 1999 by and among The Bank of New York, Cox Radio, Inc. and CXR Holdings, Inc.

⁽⁵⁾ 4.3	—	Form of Specimen Class A common stock certificate.

10.1		Five Year Credit Agreement, dated as of June 4, 2004, among Cox Radio, Inc., the Lenders party thereto, JPMorgan Chase Bank, as Administrative Agent for the Lenders, Wachovia Bank, National Association, as Co-Syndication Agent, Bank of America, N.A., as Co-Syndication Agent, J.P. Morgan Securities Inc., as Co-Lead Arranger and Joint Bookrunner, and Wachovia Capital Markets, LLC, as Co-Lead Arranger and Joint Bookrunner.



⁽⁶⁾10.2		Cox Radio, Inc. Second Amended and Restated Long-Term Incentive Plan.

31.1	—	Certification of Chief Executive Officer Pursuant to Rule 13a-14(a) of the Securities Exchange Act of 1934.

31.2	—	Certification of Chief Financial Officer Pursuant to Rule 13a-14(a) of the Securities Exchange Act of 1934.

32.1	—	Certification of Chief Executive Officer and Chief Financial Officer Pursuant to Rule 13a-14(b) of the Securities Exchange Act of 1934.

(1)	Incorporated by reference to the corresponding exhibit of Cox Radio’s Registration Statement on Form S-1 (Commission File No. 333-08737).

(2)	Incorporated by reference to Exhibit 3.2 of Cox Radio’s Form 8-A/A filed February 15, 2002.

(3)	Incorporated by reference to Exhibit 3.2 of Cox Radio’s Registration Statement on Form S-1 (Commission File No. 333-08737).

(4)	Incorporated by reference to Exhibit 4.2 of Cox Radio’s Report on Form 10-Q for the period ended March 31, 1999.

(5)	Incorporated by reference to Exhibit 4.1 of Cox Radio’s Report on Form 8-A/A filed February 15, 2002.

(6)	Incorporated by reference to Appendix C of Cox Radio’s Definitive Proxy Statement filed April 5, 2004.

(b)	Reports on Form 8-K:

Form 8-K dated May 5, 2004 (furnished May 5, 2004) announcing Cox Radio’s financial results for the quarter ended March 31, 2004, under Item 12 and furnishing a copy of Cox Radio’s earnings press release under Item 7.

Form 8-K dated June 8, 2004 announcing, under Item 5 that Cox Radio entered into a new five-year credit facility.

SIGNATURES

Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned thereunto duly authorized.


		Cox Radio, Inc.

August 6, 2004		/s/ Neil O. Johnston
		Neil O. Johnston Vice President and Chief Financial Officer (Principal Financial Officer, Principal Accounting Officer and duly authorized officer)

EX-4.1 2 dex41.htm INDENTURE Indenture

Exhibit 4.1

COX RADIO, INC., Issuer

and

THE GUARANTORS PARTY HERETO, Guarantors

THE BANK OF NEW YORK, Trustee

INDENTURE

Dated as of May 26, 1998

Debt Securities

TABLE OF CONTENTS


		Page
ARTICLE I Definitions and Other Provisions of General Application		1

Section 1.1.	Definitions.	1
	Act	2
	Additional Amounts	2
	Affiliate	2
	Asset Acquisition	2
	Asset Disposition	3
	Authenticating Agent	3
	Authorized Newspaper	3
	Authorized Officer	3
	Bearer Security	3
	Board of Directors	3
	Board Resolution	3
	Business Day	3
	Capitalized Lease	3
	Capital Stock	4
	Closing Date	4
	Commission	4
	Company	4
	Company Request and Company Order	4
	Conversion Event	4
	Corporate Trust Office	4
	Corporation	4
	Coupon	5
	Credit	5
	Currency	5
	Currency Agreement	5
	CUSIP number	5
	Default	5
	Defaulted Interest	5
	Dollars or $5
	ECU	5
	European Monetary System	5
	European Union	5
	Event of Default	5
	Foreign Currency	5
	GAAP	6
	Government Obligations	6
	Guarantee or Guarantees	6
	Guarantor or Guarantors	6
	Guarantor’s Board of Directors	6
	Guarantor’s Board Resolution	6
	Guarantor’s Officers’ Certificate	6
	Guarantor	7
	Holder	7
	Indebtedness	7


	Indenture	7
	Independent Public Accountants	8
	Indexed Security	8
	Initial Guarantor or Initial Guarantors	8
	Interest	8
	Interest Payment Date	8
	Interest Rate Agreement	8
	Judgment Currency	8
	Leverage Ratio	8
	Lien	9
	Maturity	9
	New York Banking Day	9
	Office or Agency	9
	Officers’ Certificate	9
	Opinion of Counsel	10
	Original Issue Discount Security	10
	Outstanding	10
	Paying Agent	11
	Permitted Liens	11
	Person	13
	Place of Payment	13
	Predecessor Security	13
	Principal Property	13
	Redemption Date	13
	Redemption Price	13
	Registered Security	13
	Regular Record Date	13
	Required Currency	14
	Responsible Officer	14
	Restricted Group	14
	Restricted Property	14
	Restricted Subsidiary	14
	Security or Securities	14
	Security Register	14
	Special Record Date	14
	Stated Maturity	14
	Subsequent Guarantor	14
	Subsidiary	14
	Trustee	15
	United States	15
	United States Alien	15
	Unrestricted Subsidiary	15
	U.S. Depository or Depository	15
	Vice President	15
Section 1.2.	Compliance Certificates and Opinions.	16
Section 1.3.	Form of Documents Delivered to Trustee.	16
Section 1.4.	Acts of Holders.	17
Section 1.5.	Notices, etc., to Trustee, the Company and the Guarantors.	19
Section 1.6.	Notice to Holders of Securities; Waiver.	19
Section 1.7.	Language of Notices.	20
Section 1.8.	Effect of Headings and Table of Contents.	20
Section 1.9.	Successors and Assigns.	21
Section 1.10.	Separability Clause.	21


Section 1.11.	Benefits of Indenture.	21
Section 1.12.	Governing Law.	21
Section 1.13.	Legal Holidays.	21
Section 1.14.	Counterparts.	22
Section 1.15.	Judgment Currency.	22
Section 1.16.	No Security Interest Created.	22
Section 1.17.	Limitation on Individual Liability.	22

ARTICLE II Security Forms		23

Section 2.1.	Forms Generally.	23
Section 2.2.	Form of Trustee’s Certificate of Authentication.	24
Section 2.3.	Securities in Global Form.	24

ARTICLE III The Securities		25

Section 3.1.	Amount Unlimited; Issuable in Series.	25
Section 3.2.	Currency; Denominations.	29
Section 3.3.	Execution, Authentication, Delivery and Dating.	29
Section 3.4.	Temporary Securities.	31
Section 3.5.	Registration, Transfer and Exchange.	32
Section 3.6.	Mutilated, Destroyed, Lost and Stolen Securities.	35
Section 3.7.	Payment of Interest and Certain Additional Amounts; Rights to Interest and Certain Additional Amounts Preserved.	36
Section 3.8.	Persons Deemed Owners.	38
Section 3.9.	Cancellation.	39
Section 3.10.	Computation of Interest.	39
Section 3.11.	Exempt Offerings.	39
Section 3.12.	CUSIP Numbers.	41

ARTICLE IV Satisfaction and Discharge		42

Section 4.1.	Satisfaction and Discharge of Indenture.	42
Section 4.2.	Defeasance and Covenant Defeasance.	43
Section 4.3.	Application of Trust Money.	47

ARTICLE V Remedies		48

Section 5.1.	Events of Default.	48
Section 5.2.	Acceleration of Maturity; Rescission and Annulment.	50
Section 5.3.	Collection of Indebtedness and Suits for Enforcement by Trustee.	51
Section 5.4.	Trustee May File Proofs of Claim.	52
Section 5.5.	Trustee May Enforce Claims without Possession of Securities or Coupons.	53
Section 5.6.	Application of Money Collected.	53
Section 5.7.	Limitations on Suits.	54
Section 5.8.	Unconditional Right of Holders to Receive Principal and any Premium, Interest and Additional Amounts.	54
Section 5.9.	Restoration of Rights and Remedies.	55
Section 5.10.	Rights and Remedies Cumulative.	55
Section 5.11.	Delay or Omission Not Waiver.	55
Section 5.12.	Control by Holders of Securities.	55
Section 5.13.	Waiver of Past Defaults.	56
Section 5.14.	Waiver of Usury, Stay or Extension Laws.	56
Section 5.15.	Undertaking for Costs.	56

iii


ARTICLE VI The Trustee		57

Section 6.1.	Certain Duties and Responsibilities.	57
Section 6.2.	Notice of Defaults.	59
Section 6.3.	Not Responsible for Recitals or Issuance of Securities.	59
Section 6.4.	May Hold Securities.	60
Section 6.5.	Money Held in Trust.	60
Section 6.6.	Compensation and Reimbursement.	60
Section 6.7.	Corporate Trustee Required; Eligibility.	61
Section 6.8.	Disqualification; Conflicting Interests.	61
Section 6.9.	Resignation and Removal; Appointment of Successor.	61
Section 6.10.	Acceptance of Appointment by Successor.	63
Section 6.11.	Merger, Conversion, Consolidation or Succession to Business.	65
Section 6.12.	Preferential Collection of Claims against the Company.	65
Section 6.13.	Appointment of Authenticating Agent.	65

ARTICLE VII Holders’ Lists and Reports by Trustee, the Guarantors and Company		68

Section 7.1.	Company and the Guarantors to Furnish Trustee Names and Addresses of Holders.	68
Section 7.2.	Preservation of Information; Communications to Holders.	68
Section 7.3.	Reports by Trustee.	68
Section 7.4.	Reports by Company and the Guarantors.	69

ARTICLE VIII Consolidation, Merger, Conveyance, Transfer or Lease		70

Section 8.1.	Company May Consolidate, Etc., Only on Certain Terms.	70
Section 8.2.	Successor Person Substituted for Company.	71
Section 8.3.	Guarantors May Consolidate, Etc., Only on Certain Terms.	71
Section 8.4.	Successor Person Substituted for A Guarantor.	72

ARTICLE IX Supplemental Indentures		72

Section 9.1.	Supplemental Indentures Without Consent of Holders.	72
Section 9.2.	Supplemental Indentures with Consent of Holders.	73
Section 9.3.	Execution of Supplemental Indentures.	75
Section 9.4.	Effect of Supplemental Indentures.	75
Section 9.5.	Reference in Securities to Supplemental Indentures.	75
Section 9.6.	Notice of Supplemental Indenture.	76

ARTICLE X Covenants		76

Section 10.1.	Payment of Principal, any Premium, Interest and Additional Amounts.	76
Section 10.2.	Maintenance of Office or Agency.	76
Section 10.3.	Money for Securities Payments to Be Held in Trust.	78
Section 10.4.	Additional Amounts.	79
Section 10.5.	Limitation on Liens.	80
Section 10.6.	Limitation on Indebtedness of Restricted Subsidiaries.	81
Section 10.7.	Designation of Subsidiaries.	81
Section 10.8.	Corporate Existence.	81
Section 10.9.	Waiver of Certain Covenants.	81
Section 10.10.	Company Statement as to Compliance; Notice of Certain Defaults.	82
Section 10.11.	Guarantor’s Statement as to Compliance; Notice of Certain Defaults.	82
Section 10.12.	Subsequent Guarantor.	83
Section 10.13.	Calculation of Original Issue Discount.	83

ARTICLE XI Redemption of Securities		84

Section 11.1.	Applicability of Article.	84
Section 11.2.	Election to Redeem; Notice to Trustee.	84


Section 11.3.	Selection by Trustee of Securities to be Redeemed.	84
Section 11.4.	Notice of Redemption.	85
Section 11.5.	Deposit of Redemption Price.	86
Section 11.6.	Securities Payable on Redemption Date.	86
Section 11.7.	Securities Redeemed in Part.	87

ARTICLE XII Sinking Funds		88

Section 12.1.	Applicability of Article.	88
Section 12.2.	Satisfaction of Sinking Fund Payments with Securities.	88
Section 12.3.	Redemption of Securities for Sinking Fund.	89

ARTICLE XIII Repayment at the Option of Holders		89

Section 13.1.	Applicability of Article.	89

ARTICLE XIV Securities in Foreign Currencies		90

Section 14.1.	Applicability of Article.	90

ARTICLE XV Meetings of Holders of Securities		90

Section 15.1.	Purposes for Which Meetings May Be Called.	90
Section 15.2.	Call, Notice and Place of Meetings.	90
Section 15.3.	Persons Entitled to Vote at Meetings.	91
Section 15.4.	Quorum; Action.	91
Section 15.5.	Determination of Voting Rights; Conduct and Adjournment of Meetings.	92
Section 15.6.	Counting Votes and Recording Action of Meetings.	93

ARTICLE XVI Guarantee		93

Section 16.1.	Unconditional Guarantee.	93
Section 16.2.	Operation of Guarantees.	95

INDENTURE, dated as of May 26, 1998 (the “Indenture”), between COX RADIO, INC., a corporation duly organized and existing under the laws of the State of Delaware (hereinafter called the “Company”), having its principal executive office located at 1400 Lake Hearn Drive, NE, Atlanta, Georgia 30319, THE BANK OF NEW YORK, a New York banking corporation, as trustee (hereinafter called the “Trustee”), having its Corporate Trust Office located at 101 Barclay Street, New York, New York 10286 and WSB, INC. and WHIO, INC., each a corporation duly organized and existing under the laws of the State of Delaware, as guarantors (each, an “Initial Guarantor”, and collectively, the “Initial Guarantors”).

RECITALS OF THE COMPANY

The Company has duly authorized the execution and delivery of this Indenture to provide for the issuance from time to time of its senior unsecured debentures, notes or other evidences of indebtedness (hereinafter called the “Securities”), unlimited as to principal amount, to bear interest at fixed or floating rates, to mature or be subject to earlier redemption or repayment at such time or times, to be issued in one or more series and to have such other provisions as shall be fixed as hereinafter provided.

The Company has duly authorized the execution and delivery of this Indenture. All things necessary to make this Indenture a valid agreement of the Company, in accordance with its terms, have been done.

In addition, each Initial Guarantor has duly authorized, and each Subsequent Guarantor will duly authorize, the execution and delivery of this Indenture insofar as it relates to the Guarantees provided for herein. All things necessary to make this Indenture a valid agreement of such Guarantor, in accordance with its terms, have been done.

NOW, THEREFORE, THIS INDENTURE WITNESSETH:

For and in consideration of the premises and the purchase of the Securities by the Holders thereof, it is mutually covenanted and agreed, for the equal and proportionate benefit of all Holders of the Securities or of any series thereof and any Coupons, as follows:

ARTICLE I

Definitions and Other Provisions

of General Application

Section 1.1. Definitions.

For all purposes of this Indenture, except as otherwise expressly provided in or pursuant to this Indenture or unless the context otherwise requires:

(1) the terms defined in this Article have the meanings assigned to them in this Article and include the plural as well as the singular;

(2) all other terms used herein which are defined in the Trust Indenture Act, either directly or by reference therein, have the meanings assigned to them therein;

(3) all accounting terms not otherwise defined herein have the meanings assigned to them in accordance with generally accepted accounting principles in the United States of America and, except as otherwise herein expressly provided, the terms “generally accepted accounting principles” or “GAAP” with respect to any computation required or permitted hereunder shall mean such accounting principles as are generally accepted in the United States of America at the date or time of such computation;

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

(5) the word “or” is always used inclusively (for example, the phrase “A or B” means “A or B or both”, not “either A or B but not both”).

Certain terms used principally in certain Articles hereof are defined in those Articles.

“Act”, when used with respect to any Holders, has the meaning specified in Section 1.4.

“Additional Amounts” means any additional amounts which are required hereby or by any Security, under circumstances specified herein or therein, to be paid by the Company in respect of certain taxes, assessments or other governmental charges imposed on Holders specified therein and which are owing to such Holders.

“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 the purposes of this definition, “control”, when used with respect to any specified Person, means the power to direct the management and policies of such Person, directly or indirectly, whether through the ownership of voting securities, by contract or otherwise; and the terms “controlling” and “controlled” have the meanings correlative to the foregoing.

“Asset Acquisition” means (i) an investment by the Company or any of its Restricted Subsidiaries in any other Person where such Person shall become a Restricted Subsidiary or shall be merged into or consolidated with the Company or any of its Restricted Subsidiaries or (ii) an acquisition by the Company or any of its Restricted Subsidiaries of the property and assets of any Person other than the Company or any of its Restricted Subsidiaries that constitute substantially all of a division or line of business of such Person.

“Asset Disposition” means the sale or other disposition by the Company or any of its Restricted Subsidiaries (other than to the Company or another Restricted Subsidiary) of (i) all or substantially all of the Capital Stock of any Restricted Subsidiary or (ii) all or substantially all of the assets that constitute a division or line of business of the Company or any of its Restricted Subsidiaries.

“Authenticating Agent” means any Person authorized by the Trustee pursuant to Section 6.13 to act on behalf of the Trustee to authenticate Securities of one or more series.

“Authorized Newspaper” means a newspaper, in an official language of the place of publication or in the English language, customarily published on each day that is a Business Day in the place of publication, whether or not published on Saturdays, Sundays or holidays in the place of publication, and of general circulation in each place in connection with which the term is used or in the financial community of each such place. Where successive publications are required to be made in Authorized Newspapers, the successive publications may be made in the same or in different newspapers in the same city meeting the foregoing requirements and in each case on any day that is a Business Day in the place of publication.

“Authorized Officer” means, when used with respect to a Corporation, the Chairman of the Board of Directors, a Vice Chairman, the President, any Vice President, the Treasurer, an Assistant Treasurer, the Secretary or an Assistant Secretary, of such Corporation.

“Bearer Security” means any Security in the form established pursuant to Section 2.1 which is payable to bearer.

“Board of Directors” means either the Board of Directors of the Company or any duly authorized committee of that Board.

“Board Resolution” means a copy of one or more resolutions, certified by the Secretary or an Assistant Secretary of the Company to have been duly adopted by the Board of Directors, and to be in full force and effect on the date such certification is delivered to the Trustee.

“Business Day”, with respect to any Place of Payment or other location, means, unless otherwise specified with respect to any Securities pursuant to Section 3.1, any day other than a Saturday, Sunday or other day on which banking institutions in such Place of Payment or other location are authorized or obligated by law, regulation or executive order to close.

“Capitalized Lease” means, as applied to any Person, any lease of any property (whether real, personal or mixed) of which the discounted present value of the rental obligations of such Person as lessee, in conformity with GAAP, is required to be capitalized on the balance sheet of such Person.

“Capital Stock” means, with respect to any Person, any and all shares, interests, participations or other equivalents (however designated, whether voting or non-voting) in equity of such Person, whether outstanding on the Closing Date or issued thereafter.

“Closing Date” means the date on which the first series of Securities is originally issued under the Indenture.

“Commission” means the Securities and Exchange Commission, as from time to time constituted, created under the Securities Exchange Act of 1934, as amended, or, if at any time after the execution of this Indenture such Commission is not existing and performing the duties now assigned to it under the Trust Indenture Act, then the body performing such duties at such time.

“Company” means the Person named as the “Company” in the first paragraph of this instrument until a successor Person shall have become such pursuant to the applicable provisions of this Indenture, and thereafter “Company” shall mean such successor Person, and any other obligor upon the Securities.

“Company Request” and “Company Order” mean, respectively, a written request or order, as the case may be, signed in the name of the Company by the Chairman of the Board, a Vice Chairman, the President, or a Vice President, and by the Treasurer, an Assistant Treasurer, the Secretary or an Assistant Secretary, of the Company, and delivered to the Trustee.

“Conversion Event” means the cessation of use of (i) a Foreign Currency both by the government of the country or the confederation which issued such Foreign Currency and for the settlement of transactions by a central bank or other public institutions of or within the international banking community, (ii) the ECU both within the European Monetary System and for the settlement of transactions by public institutions of or within the European Union or (iii) any currency unit or composite currency other than the ECU for the purposes for which it was established, and, unless otherwise specified with respect to any Securities pursuant to Section 3.1, all payments of principal of and premium, if any, and interest on any Debt Security that are payable in a Foreign Currency that ceases to be used by the government or confederation of issuance shall be made in U.S. dollars.

“Corporate Trust Office” means the principal corporate trust office of the Trustee at which at any particular time its corporate trust business shall be principally administered, which office as of the date hereof is located at 101 Barclay Street, New York, New York 10286.

“Corporation” includes corporations and limited liability companies and, except for purposes of Article VIII, associations, companies and business trusts.

“Coupon” means any interest coupon appertaining to a Bearer Security.

“Credit Agreement” or “Credit Agreements” means (i) the $300 million, five-year, senior, unsecured revolving credit facility, dated as of March 7, 1997, with certain guarantors and banks, including Chase Bank of Texas, N.A. (formerly Texas Commerce Bank National Association), as Administrative Agent, NationsBank of Texas, N.A., as Syndication Agent and Citibank, N.A., as Documentation Agent or (ii) any future senior unsecured credit facility between the Company and one or more third party lenders.

“Currency”, with respect to any payment, deposit or other transfer in respect of the principal of or any premium or interest on or any Additional Amounts with respect to any Security, means Dollars or the Foreign Currency, as the case may be, in which such payment, deposit or other transfer is required to be made by or pursuant to the terms hereof or such Security and, with respect to any other payment, deposit or transfer pursuant to or contemplated by the terms hereof or such Security, means Dollars.

“Currency Agreement” means any foreign exchange contract, currency swap agreement or other similar agreement or arrangement.

“CUSIP number” means the alphanumeric designation assigned to a Security by Standard & Poor’s Corporation, CUSIP Service Bureau.

“Default” means any event which is, or after notice or passage of time or both would be, an Event of Default.

“Defaulted Interest” has the meaning specified in Section 3.7.

“Dollars” or “$” means a dollar or other equivalent unit of legal tender for payment of public or private debts in the United States of America.

“ECU” means the European Currency Units as defined and revised from time to time by the Council of the European Community.

“European Monetary System” means the European Monetary System established by the Resolution of December 5, 1978 of the Council of the European Community.

“European Union” means the European Community, the European Coal and Steel Community and the European Atomic Energy Community.

“Event of Default” has the meaning specified in Section 5.1.

“Foreign Currency” means any currency, currency unit or composite currency, including, without limitation, the ECU, issued by the government of one or more countries other than the United States of America or by any recognized confederation or association of such governments.

“GAAP” means such accounting principles as are generally accepted in the United States of America as of the date or time of any computation required hereunder.

“Government Obligations” means securities which are (i) direct obligations of the United States of America or the other government or governments in the confederation which issued the Foreign Currency in which the principal of or any premium or interest on such Security or any Additional Amounts in respect thereof shall be payable, in each case where the payment or payments thereunder are supported by the full faith and credit of such government or governments or (ii) obligations of a Person controlled or supervised by and acting as an agency or instrumentality of the United States of America or such other government or governments, in each case where the timely payment or payments thereunder are unconditionally guaranteed as a full faith and credit obligation by the United States of America or such other government or governments, and which, in the case of (i) or (ii), are not callable or redeemable at the option of the issuer or issuers thereof, and shall also include a depository receipt issued by a bank or trust company as custodian with respect to any such Government Obligation or a specific payment of interest on or principal of or other amount with respect to any such Government Obligation held by such custodian for the account of the holder of a depository receipt, provided that (except as required by law) such custodian is not authorized to make any deduction from the amount payable to the holder of such depository receipt from any amount received by the custodian in respect of the Government Obligation or the specific payment of interest on or principal of or other amount with respect to the Government Obligation evidenced by such depository receipt.

“Guarantee” or “Guarantees” means each full and unconditional guarantee of the payment of the principal of or any premium or interest on or any Additional Amounts with respect to the Securities by a Guarantor, as more fully set forth in Article XVI.

“Guarantor” or “Guarantors” means the Initial Guarantor and any and all Subsequent Guarantors.

“Guarantor’s Board of Directors” means the Board of Directors of a Guarantor or any committee of that Board duly authorized to act generally or in any particular respect for such Guarantor hereunder.

“Guarantor’s Board Resolution” means a copy of one or more resolutions, certified by the Secretary or an Assistant Secretary of a Guarantor to have been duly adopted by such Guarantor’s Board of Directors and to be in full force and effect on the date such certification is delivered to the Trustee.

“Guarantor’s Officers’ Certificate” means a certificate signed by the Chairman of the Board, a Vice Chairman, the President, the Chief Financial Officer or a Vice President and by the Treasurer, an Assistant Treasurer, the Comptroller, the Assistant Comptroller, the Secretary or an Assistant Secretary, of a Guarantor, and is delivered to the Trustee. One of the officers signing a Guarantor’s Officers’ Certificate given pursuant to Section 10.11 shall be the principal executive, financial or accounting officer of such Guarantor.

“Guarantor Request” and “Guarantor Order” mean, respectively, a written request or order, as the case may be, signed in the name of a Guarantor by the Chairman of the Board, a Vice Chairman, the President or a Vice President, and by the Treasurer, an Assistant Treasurer, the Secretary or an Assistant Secretary, of such Guarantor, and delivered to the Trustee.

“Holder”, in the case of any Registered Security, means the Person in whose name such Security is registered in the Security Register and, in the case of any Bearer Security, means the bearer thereof and, in the case of any Coupon, means the bearer thereof.

“Indebtedness” means, without duplication, with respect to any Person: (i) any indebtedness of such Person (A) for borrowed money or (B) evidenced by a note, debenture or similar instrument (including a purchase money obligation) given in connection with the acquisition of any property or assets, including securities; (ii) any guarantee by such Person of any indebtedness of others described in the preceding clause (i); and (iii) any amendment, extension, renewal or refunding of any such indebtedness or guarantee. The term “Indebtedness” excludes (i) any indebtedness of the Company or any Restricted Subsidiary to the Company or another Restricted Subsidiary, (ii) any guarantee by the Company or any Restricted Subsidiary of indebtedness of the Company or another Restricted Subsidiary, (iii) trade accounts payable, (iv) money borrowed and set aside at the time of the incurrence of any Indebtedness in order to prefund the payment of the interest on such Indebtedness so long as such money is held to secure the payment of such interest, (v) liabilities for federal, state, local or other taxes and (vi) letters of credit, performance bonds and similar obligations issued in favor of governmental authorities as a term of any governmental franchise, license, permit or authorization held by such Person or any of its Subsidiaries. The amount of Indebtedness of any Person at any date shall be the outstanding balance at such date of all unconditional obligations as described above and, with respect to contingent obligations, the maximum liability upon the occurrence of the contingency giving rise to the obligation. The amount of Indebtedness issued with original issue discount is the face amount of such Indebtedness less the remaining unamortized portion of the original issue discount of such Indebtedness at such time as determined in conformity with GAAP.

“Indenture” means this instrument as it may from time to time be supplemented or amended by one or more indentures supplemental hereto entered into pursuant to the applicable provisions hereof and, with respect to any Security, by the terms and provisions of such Security and any Coupon appertaining thereto established pursuant to Section 3.1 (as such terms and provisions may be amended pursuant to the applicable provisions hereof).

“Independent Public Accountants” means accountants or a firm of accountants that, with respect to the Company and the Guarantors and any other obligor under the Securities, the Coupons or the Guarantees, are independent public accountants within the meaning of the Securities Act of 1933, as amended, and the rules and regulations promulgated by the Commission thereunder, who may be the independent public accountants regularly retained by the Company or who may be other independent public accountants. Such accountants or firm shall be entitled to rely upon any Opinion of Counsel as to the interpretation of any legal matters relating to this Indenture or certificates required to be provided hereunder.

“Indexed Security” means a Security the terms of which provide that the principal amount thereof payable at Stated Maturity may be more or less than the principal face amount thereof at original issuance.

“Initial Guarantor” or “Initial Guarantors” means each Person named as an “Initial Guarantor” in the first paragraph of this instrument until a successor Person shall have become such pursuant to the applicable provisions of this Indenture, and thereafter “Initial Guarantor” and “Initial Guarantors” shall mean such successor Person.

“Interest”, with respect to any Original Issue Discount Security which by its terms bears interest only after Maturity, means interest payable after Maturity and, when used with respect to a Security which provides for the payment of Additional Amounts pursuant to Section 10.4 or other amounts pursuant to the terms of such Security, includes such Additional Amounts or other amounts.

“Interest Payment Date”, with respect to any Security, means the Stated Maturity of an installment of interest on such Security.

“Interest Rate Agreement” means any interest rate protection agreement, interest rate future agreement, interest rate option agreement, interest rate swap agreement, interest rate cap agreement, interest rate collar agreement, interest rate hedge agreement, option or future contract or other similar agreement or arrangement.

“Judgment Currency” has the meaning specified in Section 1.15.

“Leverage Ratio” with respect to the Restricted Group means, as of the date of and after giving effect to any designation of an Unrestricted Subsidiary as a Restricted Subsidiary or any designation of a Restricted Subsidiary as an Unrestricted Subsidiary, in each case in accordance with Section 10.7, the ratio of (i) the aggregate outstanding principal amount of all Indebtedness of the Restricted Group as of such date to (ii) the product of four times the Restricted Group Cash Flow for the most recent full fiscal quarter for which financial information is available on such date; provided that, in making the foregoing calculation, (A) pro forma effect shall be given to any Indebtedness to be incurred or repaid on the date of incurrence of any Indebtedness (the “Transaction Date”); (B) pro forma effect shall be given to Asset Dispositions and Asset Acquisitions

(including giving pro forma effect to the application of proceeds of any Asset Disposition) that occur from the beginning of the fiscal quarter through the Transaction Date (the “Reference Period”), as if they had occurred and such proceeds had been applied on the first day of such Reference Period and, in the case of any Asset Acquisition, giving pro forma effect to any cost reductions the Company anticipates if the Company delivers to the Trustee an officer’s certificate executed by the Chief Financial Officer of the Company certifying to and describing and quantifying with reasonable specificity the cost reductions expected to be attained within the first year after such Asset Acquisition; and (C) pro forma effect shall be given to asset dispositions and asset acquisitions (including giving pro forma effect to the application of proceeds of any asset disposition) that have been made by any Person that has become a Restricted Subsidiary or has been merged with or into the Company or any Restricted Subsidiary during such Reference Period and that would have constituted Asset Dispositions or Asset Acquisitions had such transactions occurred when such Person was a Restricted Subsidiary as if such asset dispositions or asset acquisitions were Asset Dispositions or Asset Acquisitions that occurred on the first day of such Reference Period; provided that to the extent that clause (B) or (C) of this sentence requires that pro forma effect be given to an Asset Acquisition or Asset Disposition, such pro forma calculation shall be based upon the fiscal quarter immediately preceding the Transaction Date of the Person, or division or line of business of the Person, that is acquired or disposed of for which financial information is available.

“Lien” means any mortgage, pledge, security interest, encumbrance, lien or charge of any kind (including any conditional sale or other title retention agreement or lease in the nature thereof).

“Maturity”, with respect to any Security, means the date on which the principal of such Security or an installment of principal becomes due and payable as therein or herein provided, whether at the Stated Maturity or by declaration of acceleration, notice of redemption or repurchase, notice of option to elect repayment or otherwise, and includes the Redemption Date.

“New York Banking Day” has the meaning specified in Section 1.15.

“Office” or “Agency”, with respect to any Securities, means an office or agency of the Company or a Guarantor maintained or designated in a Place of Payment for such Securities pursuant to Section 10.2 or any other office or agency of the Company or a Guarantor maintained or designated for such Securities pursuant to Section 10.2 or, to the extent designated or required by Section 10.2 in lieu of such office or agency, the Corporate Trust Office of the Trustee.

“Officers’ Certificate” means a certificate signed by the Chairman of the Board, a Vice Chairman, the President, the Chief Financial Officer or a Vice President, and by the Treasurer, an Assistant Treasurer, the Controller, an Assistant Controller, the Secretary or

an Assistant Secretary, of the Company, and delivered to the Trustee. One of the officers signing an Officers’ Certificate given pursuant to Section 10.10 shall be the principal executive, financial or accounting officer of the Company.

“Opinion of Counsel” means a written opinion of counsel, who may be an employee of or counsel for the Company or a Guarantor or other counsel who shall be reasonably acceptable to the Trustee.

“Original Issue Discount Security” means a Security issued pursuant to this Indenture which provides for declaration of an amount less than the principal face amount thereof to be due and payable upon acceleration pursuant to Section 5.2.

“Outstanding”, when used with respect to any Securities, means, as of the date of determination, all such Securities theretofore authenticated and delivered under this Indenture, except:

(i) any such Security theretofore cancelled by the Trustee or the Security Registrar or delivered to the Trustee or the Security Registrar for cancellation;

(ii) any such Security for whose payment at the Maturity thereof money in the necessary amount has been theretofore deposited pursuant hereto (other than pursuant to Section 4.2) with the Trustee or any Paying Agent (other than the Company or a Guarantor) in trust or set aside and segregated in trust by the Company or a Guarantor (if the Company shall act as its own, or authorize a Guarantor to act as, Paying Agent) for the Holders of such Securities and any Coupons appertaining thereto; provided that, if such Securities are to be redeemed, notice of such redemption has been duly given pursuant to this Indenture or provision therefor satisfactory to the Trustee has been made;

(iii) any such Security with respect to which the Company has effected defeasance pursuant to the terms hereof, except to the extent provided in Section 4.2;

(iv) any such Security which has been paid pursuant to Section 3.6 or in exchange for or in lieu of which other Securities have been authenticated and delivered pursuant to this Indenture, unless there shall have been presented to the Trustee proof satisfactory to it that such Security is held by a bona fide purchaser in whose hands such Security is a valid obligation of the Company; and

(v) any such Security converted or exchanged as contemplated by this Indenture into other securities, if the terms of such Security provide for such conversion or exchange pursuant to Section 3.1;

provided, however, that in determining whether the Holders of the requisite principal amount of Outstanding Securities have given any request, demand, authorization, direction, notice, consent or waiver hereunder or are present at a meeting of Holders of Securities for quorum purposes, (i) the principal amount of an Original Issue Discount Security that may be counted in making such determination and that shall be deemed to be Outstanding for such purposes shall be equal to the amount of the principal thereof that pursuant to the terms of such Original Issue Discount Security would be declared (or shall have been declared to be) due and payable upon a declaration of acceleration thereof pursuant to Section 5.2 at the time of such determination, and (ii) the principal amount of any Indexed Security that may be counted in making such determination and that shall be deemed Outstanding for such purposes shall be equal to the principal face amount of such Indexed Security at original issuance, unless otherwise provided in or pursuant to this Indenture, and (iii) the principal amount of a Security denominated in a Foreign Currency shall be the Dollar equivalent, determined on the date of original issuance of such Security, of the principal amount (or, in the case of an Original Issue Discount Security, the Dollar equivalent on the date of original issuance of such Security of the amount determined as provided in (i) above) of such Security, and (iv) Securities owned by the Company or a Guarantor or any other obligor upon the Securities or any Affiliate of the Company or a Guarantor or such other obligor, shall be disregarded and deemed not to be Outstanding, except that, in determining whether the Trustee shall be protected in making any such determination or relying upon any such request, demand, authorization, direction, notice, consent or waiver, only Securities which a Responsible Officer of the Trustee actually knows to be so owned shall be so disregarded. Securities so owned which shall have been pledged in good faith may be regarded as Outstanding if the pledgee establishes to the satisfaction of the Trustee (A) the pledgee’s right so to act with respect to such Securities and (B) that the pledgee is not the Company or a Guarantor or any other obligor upon the Securities or any Coupons appertaining thereto or an Affiliate of the Company or a Guarantor or such other obligor.

“Paying Agent” means any Person authorized by the Company to pay the principal of, or any premium or interest on, or any Additional Amounts with respect to, any Security or any Coupon on behalf of the Company.

“Permitted Liens” means: (i) Liens for taxes, assessments, governmental charges or claims that are not yet delinquent or are being contested in good faith by appropriate legal proceedings promptly instituted and diligently conducted and for which a reserve or other appropriate provision, if any, as shall be required in conformity with GAAP shall have been made; (ii) statutory and common law Liens of landlords and carriers, warehousemen, mechanics, suppliers, materialmen, repairmen or other similar Liens arising the ordinary course of business and with respect to amounts not yet delinquent or being contested in good faith by appropriate legal proceedings promptly instituted and

diligently conducted and for which a reserve or other appropriate provision, if any, as shall be required in conformity with GAAP shall have been made; (iii) Liens incurred or deposits made in the ordinary course of business in connection with workers’ compensation, unemployment insurance and other types of social security; (iv) Liens incurred or deposits made to secure the performance of tenders, bids, leases, statutory or regulatory obligations (including obligations under franchise agreements), bankers’ acceptances, surety and appeal bonds, government contracts, performance and return-of-money bonds and other obligations of a similar nature incurred in the ordinary course of business (exclusive of obligations for the payment of borrowed money); (v) easements, rights-of-way, municipal and zoning ordinances and similar charges, encumbrances, title defects or other irregularities that do not materially interfere with the ordinary course of business of the Company or any of its Restricted Subsidiaries; (vi) Liens upon real or personal property acquired after the Closing Date; provided that (a) such Lien is created solely for the purpose of securing Indebtedness incurred, in accordance with Section 10.6 to finance the cost (including the cost of design, development, acquisition, installation, integration, improvement or construction) of the item of property or assets subject thereto and such Lien is created prior to, at the time of or within six months after the later of the acquisition, the completion of construction or the commencement of full operation of such property, (b) the principal amount of the Indebtedness secured by such Lien does not exceed 100% of such cost and (c) any such Lien shall not extend to or cover any property or assets other than such item of property or assets and any improvements on such item; (vii) Liens arising from filing Uniform Commercial Code financing statements regarding leases; (viii) Liens on property of, or on shares of Capital Stock or Indebtedness of, any Person existing at the time such Person becomes, or becomes a part of, any Restricted Subsidiary; provided that such Liens do not extend to or cover any property or assets of the Company or any Restricted Subsidiary other than the property or assets acquired; (ix) Liens in favor of the Company or any Restricted Subsidiary; (x) Liens arising from the rendering of a final judgment or order against the Company or any Restricted Subsidiary that does not give rise to an Event of Default; (xi) Liens securing reimbursement obligations with respect to letters of credit that encumber documents and other property relating to such letters of credit and the products and proceeds thereof; (xii) Liens in favor of customs and revenue authorities arising as a matter of law to secure payment of customs duties in connection with the importation of goods; (xiii) Liens encumbering customary initial deposits and margin deposits, and other Liens that are within the general parameters customary in the industry and incurred in the ordinary course of business, in each case, securing Indebtedness under Interest Rate Agreements and Currency Agreements and forward contracts, options, future contracts, futures options or similar agreements or arrangements designed solely to protect the Company or any of its Restricted Subsidiaries from fluctuations in interest rates, currencies or the price of commodities; (xiv) Liens arising out of conditional sale, title retention, consignment or similar arrangements for the sale of goods entered into by the Company or any of its Restricted Subsidiaries in the ordinary course of business in accordance with industry practice; (xv) Liens resulting from deposits made in connection with any proposed Asset Acquisition; provided that such deposit does not exceed 10% of the

estimated purchase price for such Asset Acquisition; and (xvi) Liens on or sales of receivables, including related intangible assets and proceeds thereof where, in the good faith determination of the Board of Directors of the Company, the Company has received the fair market value of such receivables.

“Person” means any individual, Corporation, partnership, joint venture, joint stock company, trust, unincorporated organization or government or any agency or political subdivision thereof.

“Place of Payment”, with respect to any Security, means the place or places where the principal of, or any premium or interest on, or any Additional Amounts with respect to, such Security are payable as provided in or pursuant to this Indenture or such Security.

“Predecessor Security” of any particular Security means every previous Security evidencing all or a portion of the same Indebtedness as that evidenced by such particular Security; and, for the purposes of this definition, any Security authenticated and delivered under Section 3.6 in exchange for or in lieu of a mutilated, destroyed, lost or stolen Security or any Security to which a mutilated, destroyed, lost or stolen Coupon appertains shall be deemed to evidence the same Indebtedness as the mutilated, destroyed, lost or stolen Security or the Security to which a mutilated, destroyed, lost or stolen Coupon appertains.

“Principal Property” means, as of any date of determination, any property or assets owned by any Restricted Subsidiary other than (i) any such property which, in the good faith opinion of the Board of Directors of the Company, is not of material importance to the business conducted by the Company and its Restricted Subsidiaries taken as a whole and (ii) any shares of any class of stock or any other security of any Unrestricted Subsidiary.

“Redemption Date”, with respect to any Security or portion thereof to be redeemed, means the date fixed for such redemption by or pursuant to this Indenture or such Security.

“Redemption Price”, with respect to any Security or portion thereof to be redeemed, means the price at which it is to be redeemed as determined by or pursuant to this Indenture or such Security.

“Registered Security” means any Security established pursuant to Section 2.1 which is registered in a Security Register.

“Regular Record Date” for the interest payable on any Registered Security on any Interest Payment Date therefor means the date, if any, specified in or pursuant to this Indenture or such Security as the “Regular Record Date”.

“Required Currency” has the meaning specified in Section 1.15.

“Responsible Officer” means any vice president, any assistant vice president, the secretary, any assistant secretary, the treasurer, any assistant treasurer, or any trust officer or any other authorized 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 or her knowledge of and familiarity with the particular subject.

“Restricted Group” means, as of any date of determination, the Company and the Restricted Subsidiaries as of such date.

“Restricted Property” means, as of any date of determination, any Principal Property and any shares of stock of a Restricted Subsidiary owned by the Company or a Restricted Subsidiary.

“Restricted Subsidiary” means each Subsidiary of the Company other than the Unrestricted Subsidiaries.

“Security” or “Securities” means any note or notes, bond or bonds, debenture or debentures, or any other evidences of Indebtedness, as the case may be, authenticated and delivered under this Indenture; provided, however, that, if at any time there is more than one Person acting as Trustee under this Indenture, “Securities”, with respect to any such Person, shall mean Securities authenticated and delivered under this Indenture, exclusive, however, of Securities of any series as to which such Person is not Trustee.

“Security Register” and “Security Registrar” have the respective meanings specified in Section 3.5.

“Special Record Date” for the payment of any Defaulted Interest on any Registered Security means a date fixed by the Trustee pursuant to Section 3.7.

“Stated Maturity”, with respect to any Security or any installment of principal thereof or interest thereon or any Additional Amounts with respect thereto, means the date established by or pursuant to this Indenture or such Security as the fixed date on which the principal of such Security or such installment of principal or interest is, or such Additional Amounts are, due and payable.

“Subsequent Guarantor” means any Subsidiary that after the date hereof guarantees indebtedness of the Company under a Credit Agreement.

“Subsidiary” means, in respect of any Person, any corporation, association, partnership or other business entity of which more than 50% of the total voting power of shares of capital stock or other interests (including partnership interests) 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 (i) such Person, (ii) such Person and one or more Subsidiaries of such Person or (iii) one or more Subsidiaries of such Person.

“Trustee” means the Person named as the “Trustee” in the first paragraph of this instrument until a successor Trustee shall have become such with respect to one or more series of Securities pursuant to the applicable provisions of this Indenture, and thereafter “Trustee” shall mean each Person who is then a Trustee hereunder; provided, however, that if at any time there is more than one such Person, “Trustee” shall mean each such Person and as used with respect to the Securities of any series shall mean the Trustee with respect to the Securities of such series.

“United States”, except as otherwise provided in or pursuant to this Indenture or any Security, means the United States of America (including the states thereof and the District of Columbia), its territories and possessions and other areas subject to its jurisdiction.

“United States Alien”, except as otherwise provided in or pursuant to this Indenture or any Security, means any Person who, for United States Federal income tax purposes, is a foreign corporation, a non-resident alien individual, a non-resident alien fiduciary of a foreign estate or trust, or a foreign partnership one or more of the members of which is, for United States Federal income tax purposes, a foreign corporation, a non-resident alien individual or a non-resident alien fiduciary of a foreign estate or trust.

“Unrestricted Subsidiary” means (i) any Subsidiary of the Company that has been designated as an Unrestricted Subsidiary as permitted by Section 10.7 and not thereafter redesignated as a Restricted Subsidiary as permitted thereby and (ii) each Subsidiary of any Unrestricted Subsidiary.

“U.S. Depository” or “Depository” means, with respect to any Security issuable or issued in the form of one or more global Securities, the Person designated as U.S. Depository or Depository by the Company in or pursuant to this Indenture, which Person must be, to the extent required by applicable law or regulation, a clearing agency registered under the Securities Exchange Act of 1934, as amended, and, if so provided with respect to any Security, any successor to such Person. If at any time there is more than one such Person, “U.S. Depository” or “Depository” shall mean, with respect to any Securities, the qualifying entity which has been appointed with respect to such Securities.

“Vice President”, when used with respect to the Company, a Guarantor or the Trustee, means any vice president (but shall not include any assistant vice president), whether or not designated by a number or a word or words added before or after the title “Vice President”.

Section 1.2. Compliance Certificates and Opinions.

Except as otherwise expressly provided in this Indenture, upon any application or request by the Company or a Guarantor to the Trustee to take any action under any provision of this Indenture, the Company or such Guarantor, as the case may be, shall furnish to the Trustee an Officers’ Certificate or a Guarantor’s Officers’ Certificate, as the case may be, stating that all conditions precedent, if any, provided for in this Indenture relating to the proposed action have been complied with and an Opinion of Counsel stating that, in the opinion of such counsel, all such conditions precedent, if any, have been complied with, except that in the case of any such application or request as to which the furnishing of such documents or any of them is specifically required by any provision of this Indenture relating to such particular application or request, no additional certificate or opinion need be furnished.

Each such certificate or opinion with respect to compliance with a condition or covenant provided for in this Indenture shall include:

(1) a statement that each individual signing such certificate or opinion has read such condition or covenant and the definitions herein relating thereto;

(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 each such individual, he has made such examination or investigation as is necessary to enable him to express an informed opinion as to whether or not such condition or covenant has been complied with; and

(4) a statement as to whether, in the opinion of each such individual, such condition or covenant has been complied with.

Section 1.3. Form of Documents Delivered to Trustee.

In any case where several matters are required to be certified by, or covered by an opinion of, any specified Person, it is not necessary that all such matters be certified by, or covered by the opinion of, only one such Person, or that they be so certified or covered by only one document, but one such Person may certify or give an opinion with respect to some matters and one or more other such Persons as to other matters, and any such Person may certify or give an opinion as to such matters in one or several documents.

Any certificate or opinion of an officer of the Company or a Guarantor may be based, insofar as it relates to legal matters, upon a certificate or opinion of, or representations by, counsel, unless such officer knows, or in the exercise of reasonable care should know, that the certificate or opinion or representations with respect to the matters upon which his certificate or opinion is based are erroneous. Any such certificate or opinion of counsel may be based, insofar as it relates to factual matters, upon a certificate or opinion of, or representations by, an officer or officers of the Company or such Guarantor, as the case may be, stating that the information with

respect to such factual matters is in the possession of the Company or such Guarantor, as the case may be, unless such counsel knows, or in the exercise of reasonable care should know, that the certificate or opinion or representations with respect to such matters are erroneous.

Where any Person is required to make, give or execute two or more applications, requests, consents, certificates, statements, opinions or other instruments under this Indenture or any Security, they may, but need not, be consolidated and form one instrument.

Section 1.4. Acts of Holders.

Any request, demand, authorization, direction, notice, consent, waiver or other action provided by or pursuant to this Indenture to be given or taken by Holders may be embodied in and evidenced by one or more instruments of substantially similar tenor signed by such Holders in person or by an agent duly appointed in writing. If, but only if, Securities of a series are issuable as Bearer Securities, any request, demand, authorization, direction, notice, consent, waiver or other action provided in or pursuant to this Indenture to be given or taken by Holders of Securities of such series may, alternatively, be embodied in and evidenced by the record of Holders of Securities of such series voting in favor thereof, either in person or by proxies duly appointed in writing, at any meeting of Holders of Securities of such series duly called and held in accordance with the provisions of Article XV, or a combination of such instruments and any such record. Except as herein otherwise expressly provided, such action shall become effective when such instrument or instruments or record or both are delivered to the Trustee and, where it is hereby expressly required, to the Company and the Guarantors. Such instrument or instruments and any such record (and the action embodied therein and evidenced thereby) are herein sometimes referred to as the “Act” of the Holders signing such instrument or instruments or so voting at any such meeting. Proof of execution of any such instrument or of a writing appointing any such agent, or of the holding by any Person of a Security, shall be sufficient for any purpose of this Indenture and (subject to the provisions of Article VI) conclusive in favor of the Trustee, the Company and a Guarantor and any agent of the Trustee, the Company or such Guarantor, if made in the manner provided in this Section. The record of any meeting of Holders of Securities shall be proved in the manner provided in Section 15.6.

Without limiting the generality of this Section 1.4, unless otherwise provided in or pursuant to this Indenture, a Holder, including a U.S. Depository that is a Holder of a global Security, may make, give or take, by a proxy or proxies duly appointed in writing, any request, demand, authorization, direction, notice, consent, waiver or other Act provided in or pursuant to this Indenture to be made, given or taken by Holders, and a U.S. Depository that is a Holder of a global Security may provide its proxy or proxies to the beneficial owners of interests in any such global Security through such U.S. Depository’s standing instructions and customary practices.

The Company shall fix a record date for the purpose of determining the Persons who are beneficial owners of interest in any permanent global Security held by a U.S. Depository entitled under the procedures of such U.S. Depository to make, give or take, by a proxy or proxies duly appointed in writing, any request, demand, authorization, direction, notice, consent, waiver or

other Act provided in or pursuant to this Indenture to be made, given or taken by Holders. If such a record date is fixed, the Holders on such record date or their duly appointed proxy or proxies, and only such Persons, shall be entitled to make, give or take such request, demand, authorization, direction, notice, consent, waiver or other Act, whether or not such Holders remain Holders after such record date. No such request, demand, authorization, direction, notice, consent, waiver or other Act shall be valid or effective if made, given or taken more than 90 days after such record date.

The fact and date of the execution by any Person of any such instrument or writing referred to in this Section 1.4 may be proved in any reasonable manner; and the Trustee may in any instance require further proof with respect to any of the matters referred to in this Section.

The ownership, principal amount and serial numbers of Registered Securities held by any Person, and the date of the commencement and the date of the termination of holding the same, shall be proved by the Security Register.

The ownership, principal amount and serial numbers of Bearer Securities held by any Person, and the date of the commencement and the date of the termination of holding the same, may be proved by the production of such Bearer Securities or by a certificate executed, as depositary, by any trust company, bank, banker or other depositary reasonably acceptable to the Company, wherever situated, if such certificate shall be deemed by the Company and the Trustee to be satisfactory, showing that at the date therein mentioned such Person had on deposit with such depositary, or exhibited to it, the Bearer Securities therein described; or such facts may be proved by the certificate or affidavit of the Person holding such Bearer Securities, if such certificate or affidavit is deemed by the Trustee to be satisfactory. The Trustee, the Company and the Guarantors may assume that such ownership of any Bearer Security continues until (i) another certificate or affidavit bearing a later date issued in respect of the same Bearer Security is produced, or (ii) such Bearer Security is produced to the Trustee by some other Person, or (iii) such Bearer Security is surrendered in exchange for a Registered Security, or (iv) such Bearer Security is no longer Outstanding. The ownership, principal amount and serial numbers of Bearer Securities held by the Person so executing such instrument or writing and the date of the commencement and the date of the termination of holding the same may also be proved in any other manner which the Company and the Trustee deem sufficient.

If the Company or a Guarantor shall solicit from the Holders of any Registered Securities any request, demand, authorization, direction, notice, consent, waiver or other Act, the Company or such Guarantor, as the case may be, may at its option (but is not obligated to), by Board Resolution or Guarantor’s Board Resolution, as the case may be, fix in advance a record date for the determination of Holders of Registered Securities entitled to give such request, demand, authorization, direction, notice, consent, waiver or other Act. If such a record date is fixed, such request, demand, authorization, direction, notice, consent, waiver or other Act may be given before or after such record date, but only the Holders of Registered Securities of record at the close of business on such record date shall be deemed to be Holders for the purpose of determining whether Holders of the requisite proportion of Outstanding Securities have

authorized or agreed or consented to such request, demand, authorization, direction, notice, consent, waiver or other Act, and for that purpose the Outstanding Securities shall be computed as of such record date; provided that no such authorization, agreement or consent by the Holders of Registered Securities shall be deemed effective unless it shall become effective pursuant to the provisions of this Indenture not later than six months after the record date.

Any request, demand, authorization, direction, notice, consent, waiver or other Act by the Holder of any Security shall bind every future Holder of the same Security and the Holder of every Security issued upon the registration of transfer thereof or in exchange therefor or in lieu thereof in respect of anything done or suffered to be done by the Trustee, any Security Registrar, any Paying Agent, the Company or a Guarantor in reliance thereon, whether or not notation of such Act is made upon such Security.

Section 1.5. Notices, etc., to Trustee, the Company and the Guarantors.

Any request, demand, authorization, direction, notice, consent, waiver or other Act of Holders or other document provided or permitted by this Indenture to be made upon, given or furnished to, or filed with,

(1) the Trustee by any Holder, a Guarantor or by the Company shall be sufficient for every purpose hereunder if made, given, furnished or filed in writing to or with the Trustee at its Corporate Trust Office, or

(2) the Company or a Guarantor by the Trustee or by any Holder shall be sufficient for every purpose hereunder (unless otherwise herein expressly provided) if in writing and mailed, first-class postage prepaid, to the Company or such Guarantor, as the case may be, addressed to it at the address of its principal office specified in the first paragraph of this instrument or at any other address previously furnished in writing to the Trustee by the Company or such Guarantor, as the case may be.

Section 1.6. Notice to Holders of Securities; Waiver.

Except as otherwise expressly provided in or pursuant to this Indenture, where this Indenture provides for notice to Holders of Securities of any event,

(1) such notice shall be sufficiently given to Holders of Registered Securities if in writing and mailed, first-class postage prepaid, to each Holder of a Registered Security affected by such event, at his address as it appears in the Security Register, not later than the latest date, and not earlier than the earliest date, prescribed for the giving of such notice; and

(2) such notice shall be sufficiently given to Holders of Bearer Securities, if any, if published in an Authorized Newspaper in The City of New York and, if such Securities are then listed on any stock exchange outside the United States, in an Authorized Newspaper in such city as the Company shall advise the Trustee that such stock exchange

so requires, on a Business Day at least twice, the first such publication to be not earlier than the earliest date and the second such publication not later than the latest date prescribed for the giving of such notice.

In any case where notice to Holders of Registered Securities is given by mail, neither the failure to mail such notice, nor any defect in any notice so mailed, to any particular Holder of a Registered Security shall affect the sufficiency of such notice with respect to other Holders of Registered Securities or the sufficiency of any notice to Holders of Bearer Securities given as provided herein. Any notice which is mailed in the manner herein provided shall be conclusively presumed to have been duly given or provided. In the case by reason of the suspension of regular mail service or by reason of any other cause it shall be impracticable to give such notice by mail, then such notification as shall be made with the approval of the Trustee shall constitute a sufficient notification for every purpose hereunder.

In case by reason of the suspension of publication of any Authorized Newspaper or Authorized Newspapers or by reason of any other cause it shall be impracticable to publish any notice to Holders of Bearers Securities as provided above, then such notification to Holders of Bearer Securities as shall be given with the approval of the Trustee shall constitute sufficient notice to such Holders for every purpose hereunder. Neither failure to give notice by publication to Holders of Bearer Securities as provided above, nor any defect in any notice so published, shall affect the sufficiency of any notice mailed to Holders of Registered Securities as provided above.

Where this Indenture provides for notice in any manner, such notice may be waived in writing by the Person entitled to receive such notice, either before or after the event, and such waiver shall be the equivalent of such notice. Waivers of notice by Holders of Securities shall be filed with the Trustee, but such filing shall not be a condition precedent to the validity of any action taken in reliance upon such waiver.

Section 1.7. Language of Notices.

Any request, demand, authorization, direction, notice, consent, election or waiver required or permitted under this Indenture shall be in the English language, except that, if the Company or a Guarantor, as the case may be, so elects, any published notice may be in an official language of the country of publication.

Section 1.8. Effect of Headings and Table of Contents.

The Article and Section headings herein and the Table of Contents are for convenience only and shall not affect the construction hereof.

Section 1.9. Successors and Assigns.

All covenants and agreements in this Indenture by the Company shall bind its successors and assigns, whether so expressed or not. All covenants and agreements in this Indenture by the Guarantors shall bind their respective successors and assigns, whether so expressed or not.

Section 1.10. Separability Clause.

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

Section 1.11. Benefits of Indenture.

Nothing in this Indenture, any Security or any Coupon, express or implied, shall give to any Person, other than the parties hereto, any Security Registrar, any Paying Agent, any Authenticating Agent and their successors hereunder, and the Holders of Securities or Coupons, any benefit or any legal or equitable right, remedy or claim under this Indenture.

Section 1.12. Governing Law.

This Indenture, the Securities, the Guarantees and any Coupons shall be governed by and construed in accordance with the laws of the State of New York applicable to agreements made or instruments entered into and, in each case, performed in said state.

Section 1.13. Legal Holidays.

Unless otherwise specified in or pursuant to this Indenture or any Securities, in any case where any Interest Payment Date, Stated Maturity or Maturity of any Security, or the last date on which a Holder has the right to convert or exchange Securities of a series that are convertible or exchangeable, shall not be a Business Day at any Place of Payment, then (notwithstanding any other provision of this Indenture, any Security or any Coupon other than a provision in any Security or Coupon that specifically states that such provision shall apply in lieu hereof) payment need not be made at such Place of Payment on such date, and such Securities need not be converted or exchanged on such date but such payment may be made, and such Securities may be converted or exchanged, on the next succeeding day that is a Business Day at such Place of Payment with the same force and effect as if made on the Interest Payment Date or at the Stated Maturity or Maturity or on such last day for conversion or exchange, and no interest shall accrue on the amount payable on such date or at such time for the period from and after such Interest Payment Date, Stated Maturity, Maturity or last day for conversion or exchange, as the case may be, to such next succeeding Business Day.

Section 1.14. Counterparts.

This Indenture may be executed in several counterparts, each of which shall be an original and all of which shall constitute but one and the same instrument.

Section 1.15. Judgment Currency.

Each of the Company and the Guarantors agrees, to the fullest extent that it may effectively do so under applicable law, that (a) if for the purpose of obtaining judgment in any court it is necessary to convert the sum due in respect of the principal of, or premium or interest, if any, on, or Additional Amounts with respect to, the Securities of any series or the Guarantees (the “Required Currency”) into a currency in which a judgment will be rendered (the “Judgment Currency”), the rate of exchange used shall be the rate at which in accordance with normal banking procedures the Trustee could purchase in The City of New York the requisite amount of the Required Currency with the Judgment Currency on the New York Banking Day preceding the day on which a final unappealable judgment is given and (b) its obligations under this Indenture to make payments in the Required Currency (i) shall not be discharged or satisfied by any tender, or any recovery pursuant to any judgment (whether or not entered in accordance with clause (a)), in any currency other than the Required Currency, except to the extent that such tender or recovery shall result in the actual receipt, by the payee, of the full amount of the Required Currency expressed to be payable in respect of such payments, (ii) shall be enforceable as an alternative or additional cause of action for the purpose of recovering in the Required Currency the amount, if any, by which such actual receipt shall fall short of the full amount of the Required Currency so expressed to be payable and (iii) shall not be affected by judgment being obtained for any other sum due under this Indenture. For purposes of the foregoing, “New York Banking Day” means any day except a Saturday, Sunday or a legal holiday in The City of New York or a day on which banking institutions in The City of New York are authorized or obligated by law, regulation or executive order to be closed.

Section 1.16. No Security Interest Created.

Subject to the provisions of Section 10.5, nothing in this Indenture or in any Securities, express or implied, shall be construed to constitute a security interest under the Uniform Commercial Code or similar legislation, as now or hereafter enacted and in effect in any jurisdiction where property of the Company or its Subsidiaries is or may be located.

Section 1.17. Limitation on Individual Liability.

No recourse under or upon any obligation, covenant or agreement contained in this Indenture or in any Security or Guarantee, or for any claim based thereon or otherwise in respect thereof, shall be had against any incorporator, shareholder, officer or director, as such, past, present or future, of the Company or any Guarantor, either directly or through the Company or a Guarantor, whether by virtue of any constitution, statute or rule of law, or by the enforcement of any assessment or penalty or otherwise; it being expressly understood that this Indenture and the obligations issued hereunder are solely corporate obligations, and that no such personal liability

whatever shall attach to, or is or shall be incurred by, the incorporators, shareholders, officers or directors, as such, of the Company or any Guarantor, or any of them, because of the creation of the indebtedness hereby authorized, or under or by reason of the obligations, covenants or agreements contained in this Indenture or in any Security or Guarantee or implied therefrom; and that any and all such personal liability of every name and nature, either at common law or in equity or by constitution or statute, of, and any and all such rights and claims against, every such incorporator, shareholder, officer or director, as such, because of the creation of the indebtedness hereby authorized, or under or by reason of the obligations, covenants or agreements contained in this Indenture or in any Security or Guarantee or implied therefrom, are hereby expressly waived and released as a condition of, and as a consideration for, the execution of this Indenture and the issuance of such Security or Guarantee.

ARTICLE II

Security Forms

Section 2.1. Forms Generally.

Each Registered Security, Bearer Security, Coupon and temporary or permanent global Security issued pursuant to this Indenture shall be in the form established by or pursuant to a Board Resolution or in one or more indentures supplemental hereto, shall have such appropriate insertions, omissions, substitutions and other variations as are required or permitted by or pursuant to this Indenture or any indenture supplemental hereto and may have such letters, numbers or other marks of identification and such legends or endorsements placed thereon as may, consistently herewith, be determined by the officers executing such Security or Coupon as evidenced by their execution of such Security or Coupon.

Unless otherwise provided in or pursuant to this Indenture or any Securities, the Securities shall be issuable in registered form without Coupons and shall not be issuable upon the exercise of warrants.

Definitive Securities and definitive Coupons shall be printed, lithographed or engraved or produced by any combination of these methods on a steel engraved border or steel engraved borders or may be produced in any other manner, all as determined by the officers of the Company executing such Securities or Coupons, as evidenced by their execution of such Securities or Coupons.

Section 2.2. Form of Trustee’s Certificate of Authentication.

Subject to Section 6.13, the Trustee’s certificate of authentication shall be in substantially the following form:

This is one of the Securities of the series designated therein referred to in the within-mentioned Indenture.


Dated:	THE BANK OF NEW YORK,
		as Trustee

	By
		Authorized Signatory

Section 2.3. Securities in Global Form.

Unless otherwise provided in or pursuant to this Indenture or any Securities, the Securities shall not be issuable in temporary or permanent global form. If Securities of a series shall be issuable in global form, any such Security may provide that it or any number of such Securities shall represent the aggregate amount of all Outstanding Securities of such series (or such lesser amount as is permitted by the terms thereof) from time to time endorsed thereon and may also provide that the aggregate amount of Outstanding Securities represented thereby may from time to time be increased or reduced to reflect exchanges. Any endorsement of any Security in global form to reflect the amount, or any increase or decrease in the amount, or changes in the rights of Holders, of Outstanding Securities represented thereby shall be made in such manner and by such Person or Persons as shall be specified therein or in the Company Order to be delivered pursuant to Section 3.3 or 3.4 with respect thereto. Subject to the provisions of Section 3.3 and, if applicable, Section 3.4, the Trustee shall make available for delivery and redelivery, in each case at the Company’s expense, any Security in permanent global form in the manner and upon instructions given by the Person or Persons specified therein or in the applicable Company Order. If a Company Order pursuant to Section 3.3 or 3.4 has been, or simultaneously is, delivered, any instructions by the Company with respect to a Security in global form shall be in writing but need not be accompanied by or contained in an Officers’ Certificate and need not be accompanied by an Opinion of Counsel.

Notwithstanding the provisions of Section 3.7, unless otherwise specified in or pursuant to this Indenture or any Securities, payment of principal of, any premium and interest on, and any Additional Amounts with respect to, any Security in temporary or permanent global form shall be made to the Person or Persons specified therein.

Notwithstanding the provisions of Section 3.8 and except as provided in the preceding paragraph, the Company, the Trustee and any agent of the Company or the Trustee shall treat as the Holder of such principal amount of Outstanding Securities represented by a global Security (i) in the case of a global Security in registered form, the Holder of such global Security in registered form, or (ii) in the case of a global Security in bearer form, the Person or Persons specified pursuant to Section 3.1.

ARTICLE III

The Securities

Section 3.1. Amount Unlimited; Issuable in Series.

The aggregate principal amount of Securities which may be authenticated and made available for delivery under this Indenture is unlimited.

The Securities may be issued in one or more series. With respect to Securities to be authenticated and delivered hereunder, there shall be established in or pursuant to a Board Resolution and set forth in an Officers’ Certificate, or established in one or more indentures supplemental hereto:

(1) the title of such Securities and the series in which such Securities shall be included;

(2) any limit upon the aggregate principal amount of the Securities of the series which may be authenticated and made available for delivery under this Indenture (except for Securities authenticated and made available for delivery upon registration of transfer of, or in exchange for, or in lieu of, other Securities of such series pursuant to Section 3.4, 3.5, 3.6, 9.5 or 11.7, upon repayment in part of any Registered Security of such series pursuant to Article XIII, upon surrender in part of any Registered Security for conversion into or exchange for other securities pursuant to its terms, or pursuant to or as contemplated by the terms of such Securities);

(3) if such Securities are to be issuable as Registered Securities, as Bearer Securities or alternatively as Bearer Securities and Registered Securities, and whether the Bearer Securities are to be issuable with Coupons, without Coupons or both, and any restrictions applicable to the offer, sale or delivery of the Bearer Securities and the terms, if any, upon which Bearer Securities may be exchanged for Registered Securities and vice versa;

(4) if any of such Securities are to be issuable in global form, when any of such Securities are to be issuable in global form and (i) whether such Securities are to be issued in temporary or permanent global form or both, (ii) whether beneficial owners of interests in any such global Security may exchange such interests for Securities of the same series and of like tenor and of any authorized form and denomination, and the circumstances under which any such exchanges may occur, if other than in the manner specified in Section 3.5, and (iii) the name of the Depository or the U.S. Depository, as the case may be, with respect to any such global Security;

(5) if any of such Securities are to be issuable as Bearer Securities or in global form, the date as of which any such Bearer Security or global Security shall be dated (if other than the date of original issuance of the first of such Securities to be issued);

(6) if any of such Securities are to be issuable as Bearer Securities, whether interest in respect of any portion of a temporary Bearer Security in global form payable in respect of an Interest Payment Date therefor prior to the exchange, if any, of such temporary Bearer Security for definitive Securities shall be paid to any clearing organization with respect to the portion of such temporary Bearer Security held for its account and, in such event, the terms and conditions (including any certification requirements) upon which any such interest payment received by a clearing organization will be credited to the Persons entitled to interest payable on such Interest Payment Date;

(7) the date or dates, or the method or methods, if any, by which such date or dates shall be determined, on which the principal of such Securities is payable;

(8) the rate or rates at which such Securities shall bear interest, if any, or the method or methods, if any, by which such rate or rates are to be determined, the date or dates, if any, from which such interest shall accrue or the method or methods, if any, by which such date or dates are to be determined, the Interest Payment Dates, if any, on which such interest shall be payable and the Regular Record Date, if any, for the interest payable on Registered Securities on any Interest Payment Date, whether and under what circumstances Additional Amounts with respect to such Securities or any of them shall be payable, the notice, if any, to Holders regarding the determination of interest on a floating rate Security and the manner of giving such notice, and the basis upon which interest shall be calculated if other than that of a 360-day year of twelve 30-day months;

(9) if in addition to or other than the Borough of Manhattan, The City of New York, the place or places where the principal of, any premium and interest on or any Additional Amounts with respect to such Securities shall be payable, any of such Securities that are Registered Securities may be surrendered for registration of transfer or exchange, any of such Securities may be surrendered for conversion or exchange and notices or demands to or upon the Company or any Guarantor in respect of such Securities, the Guarantee and this Indenture may be served, the extent to which, or the manner in which, any interest payment or Additional Amounts with respect to a global Security on an Interest Payment Date will be paid and the manner in which any principal of or premium, if any, on any global Security will be paid;

(10) whether any of such Securities are to be redeemable at the option of the Company and, if so, the date or dates on which, the period or periods within which, the price or prices at which and the other terms and conditions upon which such Securities may be redeemed, in whole or in part, at the option of the Company;

(11) whether the Company is obligated to redeem or purchase any of such Securities pursuant to any sinking fund or analogous provision or at the option of any Holder thereof and, if so, the date or dates on which, the period or periods within which, the price or prices at which and the other terms and conditions upon which such Securities shall be redeemed, purchased or repaid, in whole or in part, pursuant to such obligation, and any provisions for the remarketing of such Securities so redeemed or purchased;

(12) the denominations in which any of such Securities that are Registered Securities shall be issuable if other than denominations of $1,000 and any integral multiple thereof, and the denominations in which any of such Securities that are Bearer Securities shall be issuable if other than the denomination of $5,000;

(13) whether the Securities of the series will be convertible into and/or exchangeable for other securities, and if so, the terms and conditions upon which such Securities will be so convertible or exchangeable, and any deletions from or modifications or additions to this Indenture to permit or to facilitate the issuance of such convertible or exchangeable Securities or the administration thereof;

(14) if other than the principal amount thereof, the portion of the principal amount of any of such Securities that shall be payable upon declaration of acceleration of the Maturity thereof pursuant to Section 5.2 or the method by which such portion is to be determined;

(15) if other than Dollars, the Foreign Currency in which payment of the principal of, any premium or interest on or any Additional Amounts with respect to any of such Securities shall be payable;

(16) if the principal of, any premium or interest on or any Additional Amounts with respect to any of such Securities are to be payable, at the election of the Company or a Holder thereof or otherwise, in Dollars or in a Foreign Currency other than that in which such Securities are stated to be payable, the date or dates on which, the period or periods within which, and the other terms and conditions upon which, such election may be made, and the time and manner of determining the exchange rate between the Currency in which such Securities are stated to be payable and the Currency in which such Securities or any of them are to be paid pursuant to such election, and any deletions from or modifications of or additions to the terms of this Indenture to provide for or to facilitate the issuance of Securities denominated or payable, at the election of the Company or a Holder thereof or otherwise, in a Foreign Currency;

(17) whether the amount of payments of principal of, any premium or interest on or any Additional Amounts with respect to such Securities may be determined with reference to an index, formula or other method or methods (which index, formula or method or methods may be based, without limitation, on one or more Currencies, commodities, equity securities, equity indices or other indices), and, if so, the terms and conditions upon which and the manner in which such amounts shall be determined and paid or payable;

(18) any deletions from, modifications of or additions to the Events of Default or covenants of the Company or the Guarantors with respect to any of such Securities or Guarantees, whether or not such Events of Default or covenants are consistent with the Events of Default or covenants set forth herein;

(19) whether either or both of Section 4.2(2) relating to defeasance or Section 4.2(3) relating to covenant defeasance shall not be applicable to the Securities of such series, or any covenants in addition to those specified in Section 4.2(3) relating to the Securities of such series which shall be subject to covenant of defeasance, and any deletions from, or modifications or additions to, the provisions of Article IV in respect of the Securities of such series;

(20) whether any of such Securities are to be issuable upon the exercise of warrants, and the time, manner and place for such Securities to be authenticated and made available for delivery;

(21) if any of such Securities are to be issuable in global form and are to be issuable in definitive form (whether upon original issue or upon exchange of a temporary Security) only upon receipt of certain certificates or other documents or satisfaction of other conditions, then the form and terms of such certificates, documents or conditions;

(22) if there is more than one Trustee, the identity of the Trustee and, if not the Trustee, the identity of each Security Registrar, Paying Agent or Authenticating Agent with respect to such Securities;

(23) whether the provisions of Section 3.11 are applicable to such Securities; and

(24) any other terms of such Securities and any other deletions from or modifications or additions to this Indenture in respect of such Securities.

All Securities of any one series and all Coupons, if any, appertaining to Bearer Securities of such series shall be substantially identical except as to Currency of payments due thereunder, denomination and the rate of interest thereon, or method of determining the rate of interest, if any, Maturity, and the date from which interest, if any, shall accrue and except as may otherwise be provided by the Company in or pursuant to the Board Resolution and set forth in the Officers’ Certificate or in any indenture or indentures supplemental hereto pertaining to such series of Securities. The terms of the Securities of any series may provide, without limitation, that the Securities shall be authenticated and made available for delivery by the Trustee on original issue from time to time upon written order of persons designated in the Officers’ Certificate or supplemental indenture and that such persons are authorized to determine, consistent with such Officers’ Certificate or any applicable supplemental indenture, such terms and conditions of the Securities of such series as are specified in such Officers’ Certificate or supplemental indenture. All Securities of any one series need not be issued at the same time and, unless otherwise so provided, a series may be reopened for issuances of additional Securities of such series or to establish additional terms of such series of Securities.

If any of the terms of the Securities of any series shall be established by action taken by or pursuant to a Board Resolution, the Board Resolution shall be delivered to the Trustee at or prior to the delivery of the Officers’ Certificate setting forth the terms of such series.

Section 3.2. Currency; Denominations.

Unless otherwise provided in or pursuant to this Indenture, the principal of, any premium and interest on and any Additional Amounts with respect to the Securities shall be payable in Dollars. Unless otherwise provided in or pursuant to this Indenture, Registered Securities denominated in Dollars shall be issuable in registered form without Coupons in denominations of $1,000 and any integral multiple thereof, and Bearer Securities denominated in Dollars shall be issuable in the denomination of $5,000. Securities not denominated in Dollars shall be issuable in such denominations as are established with respect to such Securities in or pursuant to this Indenture.

Section 3.3. Execution, Authentication, Delivery and Dating.

Securities shall be executed on behalf of the Company by its Vice President or a Treasurer under its corporate seal reproduced thereon and attested by its Secretary or one of its Assistant Secretaries. Coupons shall be executed on behalf of the Company by the Treasurer or any Assistant Treasurer of the Company. The signature of any of these officers on the Securities or any Coupons appertaining thereto may be manual or facsimile.

Securities and any Coupons appertaining thereto bearing the manual or facsimile signatures of individuals who were at any time the proper officers of the Company shall bind the Company, notwithstanding that such individuals or any of them have ceased to hold such offices prior to the authentication and delivery of such Securities and Coupons or did not hold such offices at the date of original issuance of such Securities or Coupons.

At any time and from time to time after the execution and delivery of this Indenture, the Company may deliver Securities, together with any Coupons appertaining thereto, executed by the Company, to the Trustee for authentication and, provided that the Board Resolution and Officers’ Certificate or supplemental indenture or indentures with respect to such Securities referred to in Section 3.1 and a Company Order for the authentication and delivery of such Securities have been delivered to the Trustee, the Trustee in accordance with the Company Order and subject to the provisions hereof and of such Securities shall authenticate and make available for delivery such Securities. In authenticating such Securities, and accepting the additional responsibilities under this Indenture in relation to such Securities and any Coupons appertaining thereto, the Trustee shall be entitled to receive, and (subject to the provisions of Article VI) shall be fully protected in relying upon,

(1) an Opinion of Counsel to the effect that:

(a) the form or forms and terms of such Securities and Coupons, if any, have been established in conformity with the provisions of this Indenture;

(b) all conditions precedent to the authentication and delivery of such Securities and Coupons, if any, appertaining thereto have been complied with and that such Securities and Coupons, when completed by appropriate insertions, executed under the Company’s corporate seal and attested by duly authorized officers of the Company, delivered by duly authorized officers of the Company to the Trustee for authentication pursuant to this Indenture, and authenticated and made available for delivery by the Trustee and issued by the Company in the manner and subject to any conditions specified in such Opinion of Counsel, will constitute legally valid and binding obligations of the Company, enforceable against the Company in accordance with their terms, except as enforcement thereof may be subject to or limited by bankruptcy, insolvency, reorganization, moratorium, arrangement, fraudulent conveyance, fraudulent transfer or other similar laws relating to or affecting creditors’ rights generally, and subject to general principles of equity (regardless of whether enforcement is sought in a proceeding in equity or at law) and will entitle the Holders thereof to the benefits of this Indenture, including the Guarantees; such Opinion of Counsel need express no opinion as to the availability of equitable remedies; and

(c) all laws and requirements in respect of the execution and delivery by the Company of such Securities and Coupons, if any, have been complied with; and

(2) an Officers’ Certificate and a Guarantor’s Officers’ Certificate stating that all conditions precedent to the execution, authentication and delivery of such Securities and Coupons, if any, appertaining thereto have been complied with and that, to the best knowledge of the Persons executing such certificate, no event which is, or after notice or lapse of time would become, an Event of Default with respect to any of the Securities shall have occurred and be continuing.

If all the Securities of any series are not to be issued at one time, it shall not be necessary to deliver an Opinion of Counsel and an Officers’ Certificate at the time of issuance of each Security, but such opinion and certificate, with appropriate modifications, shall be delivered at or before the time of issuance of the first Security of such series. After any such first delivery, any separate written request by an Authorized Officer of the Company that the Trustee authenticate and make available for delivery Securities of such series for original issue will be deemed to be a certification by the Company that all conditions precedent provided for in this Indenture relating to authentication and delivery of such Securities continue to have been complied with.

The Trustee shall not be required to authenticate or to cause an Authenticating Agent to authenticate any Securities if the issue of such Securities pursuant to this Indenture will affect the Trustee’s own rights, duties or immunities under the Securities and this Indenture or otherwise in a manner which is not reasonably acceptable to the Trustee or if the Trustee, being advised by counsel, determines that such action may not lawfully be taken.

Each Registered Security shall be dated the date of its authentication. Each Bearer Security and any Bearer Security in global form shall be dated as of the date specified in or pursuant to this Indenture.

No Security or Coupon appertaining thereto shall be entitled to any benefit under this Indenture or be valid or obligatory for any purpose unless there appears on such Security a certificate of authentication substantially in the form provided for in Section 2.2 or 6.13 executed by or on behalf of the Trustee or by the Authenticating Agent by the manual signature of one of its authorized officers. Such certificate upon any Security shall be conclusive evidence, and the only evidence, that such Security has been duly authenticated and made available for delivery hereunder. Except as permitted by Section 3.6 or 3.7, the Trustee shall not authenticate and make available for delivery any Bearer Security unless all Coupons appertaining thereto then matured have been detached and cancelled.

Section 3.4. Temporary Securities.

Pending the preparation of definitive Securities, the Company may execute and deliver to the Trustee and, upon Company Order, the Trustee shall authenticate and make available for delivery, in the manner provided in Section 3.3, temporary Securities in lieu thereof which are printed, lithographed, typewritten, mimeographed or otherwise produced, in any authorized denomination, substantially of the tenor of the definitive Securities in lieu of which they are issued, in registered form or, if authorized in or pursuant to this Indenture, in bearer form with one or more Coupons or without Coupons and with such appropriate insertions, omissions, substitutions and other variations as the officers of the Company executing such Securities may determine, as conclusively evidenced by their execution of such Securities. Such temporary Securities may be in global form.

Except in the case of temporary Securities in global form, which shall be exchanged in accordance with the provisions thereof, if temporary Securities are issued, the Company shall cause definitive Securities to be prepared without unreasonable delay. After the preparation of definitive Securities of the same series and containing terms and provisions that are identical to those of any temporary Securities, such temporary Securities shall be exchangeable for such definitive Securities upon surrender of such temporary Securities at an Office or Agency for such Securities, without charge to any Holder thereof. Upon surrender for cancellation of any one or more temporary Securities (accompanied by any unmatured Coupons appertaining thereto), the Company shall execute and the Trustee shall authenticate and make available for delivery in exchange therefor a like principal amount of definitive Securities of authorized denominations of the same series and containing identical terms and provisions; provided, however, that no definitive Bearer Security, except as provided in or pursuant to this Indenture, shall be delivered in exchange for a temporary Registered Security; and provided, further, that a definitive Bearer Security shall be delivered in exchange for a temporary Bearer Security only in compliance with the conditions set forth in or pursuant to this Indenture. Unless otherwise provided in or pursuant to this Indenture with respect to a temporary global Security, until so exchanged the temporary Securities of any series shall in all respects be entitled to the same benefits under this Indenture as definitive Securities of such series.

Section 3.5. Registration, Transfer and Exchange.

With respect to the Registered Securities of each series, if any, the Company shall cause to be kept a register (each such register being herein sometimes referred to as the “Security Register”) at an Office or Agency for such series in which, subject to such reasonable regulations as it may prescribe, the Company shall provide for the registration of the Registered Securities of such series and of transfers of the Registered Securities of such series. Such Office or Agency shall be the “Security Registrar” for that series of Securities. Unless otherwise specified in or pursuant to this Indenture or the Securities, the Trustee shall be the initial Security Registrar for each series of Securities. The Company shall have the right to remove and replace from time to time the Security Registrar for any series of Securities; provided that no such removal or replacement shall be effective until a successor Security Registrar with respect to such series of Securities shall have been appointed by the Company and shall have accepted such appointment by the Company. In the event that the Trustee shall not be or shall cease to be Security Registrar with respect to a series of Securities, it shall have the right to examine the Security Register for such series at all reasonable times. There shall be only one Security Register for each series of Securities.

Upon surrender for registration of transfer of any Registered Security of any series at any Office or Agency for such series, the Company shall execute, and the Trustee shall authenticate and make available for delivery, in the name of the designated transferee or transferees, one or more new Registered Securities of the same series denominated as authorized in or pursuant to this Indenture, of a like aggregate principal amount bearing a number not contemporaneously outstanding and containing identical terms and provisions.

At the option of the Holder, Registered Securities of any series may be exchanged for other Registered Securities of the same series containing identical terms and provisions, in any authorized denominations, and of a like aggregate principal amount, upon surrender of the Securities to be exchanged at any Office or Agency for such series. Whenever any Registered Securities are so surrendered for exchange, the Company shall execute, and the Trustee shall authenticate and make available for delivery, the Registered Securities which the Holder making the exchange is entitled to receive.

If provided in or pursuant to this Indenture, with respect to Securities of any series, at the option of the Holder, Bearer Securities of such series may be exchanged for Registered Securities of such series containing identical terms, denominated as authorized in or pursuant to this Indenture and in the same aggregate principal amount, upon surrender of the Bearer Securities to be exchanged at any Office or Agency for such series, with all unmatured Coupons and all matured Coupons in default thereto appertaining. If the Holder of a Bearer Security is unable to produce any such unmatured Coupon or Coupons or matured Coupon or Coupons in default, such exchange may be effected if the Bearer Securities are accompanied by payment in

funds acceptable to the Company and the Trustee in an amount equal to the face amount of such missing Coupon or Coupons, or the surrender of such missing Coupon or Coupons may be waived by the Company and the Trustee if there is furnished to them such security or indemnity as they may require to save each of them and any Paying Agent harmless. If thereafter the Holder of such Bearer Security shall surrender to any Paying Agent any such missing Coupon in respect of which such a payment shall have been made, such Holder shall be entitled to receive the amount of such payment; provided, however, that, except as otherwise provided in Section 10.2, interest represented by Coupons shall be payable only upon presentation and surrender of those Coupons at an Office or Agency for such series located outside the United States. Notwithstanding the foregoing, in case a Bearer Security of any series is surrendered at any such Office or Agency for such series in exchange for a Registered Security of such series and like tenor after the close of business at such Office or Agency on (i) any Regular Record Date and before the opening of business at such Office or Agency on the next succeeding Interest Payment Date, or (ii) any Special Record Date and before the opening of business at such Office or Agency on the related date for payment of Defaulted Interest, such Bearer Security shall be surrendered without the Coupon relating to such Interest Payment Date or proposed date of payment, as the case may be (or, if such Coupon is so surrendered with such Bearer Security, such Coupon shall be returned to the Person so surrendering the Bearer Security), and interest or Defaulted Interest, as the case may be, shall not be payable on such Interest Payment Date or proposed date for payment, as the case may be, in respect of the Registered Security issued in exchange for such Bearer Security, but shall be payable only to the Holder of such Coupon when due in accordance with the provisions of this Indenture.

If provided in or pursuant to this Indenture with respect to Securities of any series, at the option of the Holder, Registered Securities of such series may be exchanged for Bearer Securities upon such terms and conditions as may be provided in or pursuant to this Indenture with respect to such series.

Whenever any Securities are surrendered for exchange as contemplated by the immediately preceding two paragraphs, the Company shall execute, and the Trustee shall authenticate and make available for delivery, the Securities which the Holder making the exchange is entitled to receive.

Notwithstanding the foregoing, except as otherwise provided in or pursuant to this Indenture, any global Security shall be exchangeable for definitive Securities only if (i) the Depository is at any time unwilling, unable or ineligible to continue as depository and a successor depository is not appointed by the Company within 90 days of the date the Company is so informed in writing, (ii) the Company executes and delivers to the Trustee a Company Order to the effect that such global Security shall be so exchangeable, or (iii) an Event of Default has occurred and is continuing with respect to the related Securities. If the beneficial owners of interests in a global Security are entitled to exchange such interests for definitive Securities as the result of an event described in clause (i), (ii) or (iii) of the preceding sentence, then without unnecessary delay but in any event not later than the earliest date on which such interests may be so exchanged, the Company shall deliver to the Trustee definitive Securities in such form and

denominations as are required by or pursuant to this Indenture, and of the same series, containing identical terms and in aggregate principal amount equal to the principal amount of such global Security, executed by the Company. On or after the earliest date on which such interests may be so exchanged, such global Security shall be surrendered from time to time by the U.S. Depository or such other Depository as shall be specified in the Company Order with respect thereto, and in accordance with instructions given to the Trustee and the U.S. Depository or such other Depository, as the case may be (which instructions shall be in writing but need not be contained in or accompanied by an Officers’ Certificate or be accompanied by an Opinion of Counsel), as shall be specified in the Company Order with respect thereto to the Trustee, as the Company’s agent for such purpose, to be exchanged, in whole or in part, for definitive Securities as described above without charge. The Trustee shall authenticate and make available for delivery, in exchange for each portion of such surrendered global Security, a like aggregate principal amount of definitive Securities of the same series of authorized denominations and of like tenor as the portion of such global Security to be exchanged, which (unless such Securities are not issuable both as Bearer Securities and as Registered Securities, in which case the definitive Securities exchanged for the global Security shall be issuable only in the form in which the Securities are issuable, as provided in or pursuant to this Indenture) shall be in the form of Bearer Securities or Registered Securities, or any combination thereof, as shall be specified by the beneficial owner thereof, but subject to the satisfaction of any certification or other requirements to the issuance of Bearer Securities; provided, however, that no such exchanges may occur during a period beginning at the opening of business 15 days before any selection of Securities of the same series to be redeemed and ending on the relevant Redemption Date; and provided, further, that (unless otherwise provided in or pursuant to this Indenture) no Bearer Security delivered in exchange for a portion of a global Security shall be mailed or otherwise delivered to any location in the United States. Promptly following any such exchange in part, such global Security shall be returned by the Trustee to such Depository or the U.S. Depository, as the case may be, or such other Depository or U.S. Depository referred to above in accordance with the instructions of the Company referred to above. If a Registered Security is issued in exchange for any portion of a global Security after the close of business at the Office or Agency for such Security where such exchange occurs on or after (i) any Regular Record Date for such Security and before the opening of business at such Office or Agency on the next succeeding Interest Payment Date, or (ii) any Special Record Date for such Security and before the opening of business at such Office or Agency on the related proposed date for payment of interest or Defaulted Interest, as the case may be, interest shall not be payable on such Interest Payment Date or proposed date for payment, as the case may be, in respect of such Registered Security, but shall be payable on such Interest Payment Date or proposed date for payment, as the case may be, only to the Person to whom interest in respect of such portion of such global Security shall be payable in accordance with the provisions of this Indenture.

All Securities issued upon any registration of transfer or exchange of Securities shall be the valid obligations of the Company evidencing the same debt and entitling the Holders thereof to the same benefits under this Indenture and the Guarantees as the Securities surrendered upon such registration of transfer or exchange.

Every Registered Security presented or surrendered for registration of transfer or for exchange or redemption shall (if so required by the Company or the Security Registrar for such Security) be duly endorsed, or be accompanied by a written instrument of transfer in form satisfactory to the Company and the Security Registrar for such Security duly executed by the Holder thereof or his attorney duly authorized in writing.

No service charge shall be made for any registration of transfer or exchange, or redemption of Securities, but the Company may require payment of a sum sufficient to cover any tax or other governmental charge and any other expenses (including fees and expenses of the Trustee) that may be imposed in connection with any registration of transfer or exchange of Securities, other than exchanges pursuant to Section 3.4, 9.5 or 11.7 not involving any transfer.

Except as otherwise provided in or pursuant to this Indenture, the Company shall not be required (i) to issue, register the transfer of or exchange any Securities during a period beginning at the opening of business 15 days before the day of the selection for redemption of Securities of like tenor and the same series under Section 11.3 and ending at the close of business on the day of such selection, or (ii) to register the transfer of or exchange any Registered Security so selected for redemption in whole or in part, except in the case of any Security to be redeemed in part, the portion thereof not to be redeemed, or (iii) to exchange any Bearer Security so selected for redemption except, to the extent provided with respect to such Bearer Security, that such Bearer Security may be exchanged for a Registered Security of like tenor and the same series, provided that such Registered Security shall be immediately surrendered for redemption with written instruction for payment consistent with the provisions of this Indenture or (iv) to issue, register the transfer of or exchange any Security which, in accordance with its terms, has been surrendered for repayment at the option of the Holder, except the portion, if any, of such Security not to be so repaid.

Section 3.6. Mutilated, Destroyed, Lost and Stolen Securities.

If any mutilated Security or a Security with a mutilated Coupon appertaining to it is surrendered to the Trustee, subject to the provisions of this Section 3.6, the Company shall execute and the Trustee shall authenticate and make available for delivery in exchange therefor a new Security of the same series containing identical terms and of like principal amount and bearing a number not contemporaneously outstanding, with Coupons appertaining thereto corresponding to the Coupons, if any, appertaining to the surrendered Security.

If there be delivered to the Company and to the Trustee (i) evidence to their satisfaction of the destruction, loss or theft of any Security or Coupon, and (ii) such security or indemnity as may be required by them to save each of them and any agent of either of them harmless, then, in the absence of notice to the Company or the Trustee that such Security or Coupon has been acquired by a bona fide purchaser, the Company shall execute and, upon the Company’s request the Trustee shall authenticate and make available for delivery, in exchange for or in lieu of any such mutilated, destroyed, lost or stolen Security or in exchange for the Security to which a destroyed, lost or stolen Coupon appertains with all appurtenant Coupons not destroyed, lost or

stolen, a new Security of the same series containing identical terms and of like principal amount and bearing a number not contemporaneously outstanding, with Coupons appertaining thereto corresponding to the Coupons, if any, appertaining to such destroyed, lost or stolen Security or to the Security to which such destroyed, lost or stolen Coupon appertains.

Notwithstanding the foregoing provisions of this Section 3.6, in case any mutilated, destroyed, lost or stolen Security or Coupon has become or is about to become due and payable, the Company in its discretion may, instead of issuing a new Security, pay such Security or Coupon; provided, however, that payment of principal of, any premium or interest on or any Additional Amounts with respect to any Bearer Securities shall, except as otherwise provided in Section 10.2, be payable only at an Office or Agency for such Securities located outside the United States and, unless otherwise provided in or pursuant to this Indenture, any interest on Bearer Securities and any Additional Amounts with respect to such interest shall be payable only upon presentation and surrender of the Coupons appertaining thereto.

Upon the issuance of any new Security under this Section 3.6, the Company may require the payment of a sum sufficient to cover any tax or other governmental charge that may be imposed in relation thereto and any other expenses (including the fees and expenses of the Trustee) connected therewith.

Every new Security, with any Coupons appertaining thereto issued pursuant to this Section 3.6 in lieu of any destroyed, lost or stolen Security, or in exchange for a Security to which a destroyed, lost or stolen Coupon appertains shall constitute a separate obligation of the Company, whether or not the destroyed, lost or stolen Security and Coupons appertaining thereto or the destroyed, lost or stolen Coupon shall be at any time enforceable by anyone, and shall be entitled to all the benefits of this Indenture and the Guarantees equally and proportionately with any and all other Securities of such series and any Coupons, if any, duly issued hereunder.

The provisions of this Section 3.6, as amended or supplemented pursuant to this Indenture with respect to particular Securities or generally, shall be exclusive and shall preclude (to the extent lawful) all other rights and remedies with respect to the replacement or payment of mutilated, destroyed, lost or stolen Securities or Coupons.

Section 3.7. Payment of Interest and Certain Additional Amounts; Rights to Interest and Certain Additional Amounts Preserved.

Unless otherwise provided in or pursuant to this Indenture, any interest on and any Additional Amounts with respect to any Registered Security which shall be payable, and are punctually paid or duly provided for, on any Interest Payment Date shall be paid to the Person in whose name such Security (or one or more Predecessor Securities) is registered as of the close of business on the Regular Record Date for such interest.

Unless otherwise provided in or pursuant to this Indenture, any interest on and any Additional Amounts with respect to any Registered Security which shall be payable, but shall not be punctually paid or duly provided for, on any Interest Payment Date for such Registered

Security (herein called “Defaulted Interest”) shall forthwith cease to be payable to the Holder thereof on the relevant Regular Record Date by virtue of having been such Holder; and such Defaulted Interest may be paid by the Company, at its election in each case, as provided in Clause (1) or (2) below:

(1) The Company may elect to make payment of any Defaulted Interest to the Person in whose name such Registered Security (or a Predecessor Security thereof) shall be registered at the close of business on a Special Record Date for the payment of such Defaulted Interest, which shall be fixed by the Company in the following manner. The Company shall notify the Trustee in writing of the amount of Defaulted Interest proposed to be paid on such Registered Security, the Special Record Date therefor and the date of the proposed payment, and at the same time the Company shall deposit with the Trustee an amount of money equal to the aggregate amount proposed to be paid in respect of such Defaulted Interest or shall make arrangements satisfactory to the Trustee for such deposit on or prior to the date of the proposed payment, such money when so deposited to be held in trust for the benefit of the Person entitled to such Defaulted Interest as in this Clause provided. The Special Record Date for the payment of such Defaulted Interest shall be not more than 15 days and not less than 10 days prior to the date of the proposed payment and not less than 10 days after notification to the Trustee of the proposed payment. The Trustee shall, in the name and at the expense of the Company, cause notice of the proposed payment of such Defaulted Interest and the Special Record Date therefor to be mailed, first-class postage prepaid, to the Holder of such Registered Security (or a Predecessor Security thereof) at his address as it appears in the Security Register not less than 10 days prior to such Special Record Date. The Trustee may, if so directed by the Company, in the name and at the expense of the Company, cause a similar notice to be published at least once in an Authorized Newspaper of general circulation in the Borough of Manhattan, The City of New York, but such publication shall not be a condition precedent to the establishment of such Special Record Date. Notice of the proposed payment of such Defaulted Interest and the Special Record Date therefor having been mailed as aforesaid, such Defaulted Interest shall be paid to the Person in whose name such Registered Security (or a Predecessor Security thereof) shall be registered at the close of business on such Special Record Date and shall no longer be payable pursuant to the following clause (2).

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

Unless otherwise provided in or pursuant to this Indenture or the Securities of any particular series pursuant to the provisions of this Indenture, at the option of the Company, interest on Registered Securities that bear interest may be paid by mailing a check to the address of the Person entitled thereto as such address shall appear in the Security Register or by transfer to an account maintained by the payee with a bank located in the United States.

Subject to the foregoing provisions of this Section and Section 3.5, each Security delivered under this Indenture upon registration of transfer of or in exchange for or in lieu of any other Security shall carry the rights to interest accrued and unpaid, and to accrue, which were carried by such other Security.

In the case of any Registered Security of any series that is convertible into or exchangeable for other securities, which Registered Security is converted or exchanged after any Regular Record Date and on or prior to the next succeeding Interest Payment Date (other than any Registered Security with respect to which the Stated Maturity is prior to such Interest Payment Date), interest with respect to which the Stated Maturity is on such Interest Payment Date shall be payable on such Interest Payment Date notwithstanding such conversion or exchange, and such interest (whether or not punctually paid or duly provided for) shall be paid to the Person in whose name that Registered Security (or one or more predecessor Registered Securities) is registered at the close of business on such Regular Record Date. Except as otherwise expressly provided in the immediately preceding sentence, in the case of any Registered Security which is converted or exchanged, interest with respect to which the Stated Maturity is after the date of conversion or exchange of such Registered Security shall not be payable.

Section 3.8. Persons Deemed Owners.

Prior to due presentment of a Registered Security for registration of transfer, the Company, the Guarantors, the Trustee and any agent of the Company, a Guarantor or the Trustee may treat the Person in whose name such Registered Security is registered in the Security Register as the owner of such Registered Security for the purpose of receiving payment of principal of, any premium and (subject to Sections 3.5 and 3.7) interest on and any Additional Amounts with respect to such Registered Security and for all other purposes whatsoever, whether or not any payment with respect to such Registered Security shall be overdue, and none of the Company, the Guarantors, the Trustee or any agent of the Company, a Guarantor or the Trustee shall be affected by notice to the contrary.

The Company, the Guarantors, the Trustee and any agent of the Company, a Guarantor or the Trustee may treat the bearer of any Bearer Security or the bearer of any Coupon as the absolute owner of such Security or Coupon for the purpose of receiving payment thereof or on account thereof and for all other purposes whatsoever, whether or not any payment with respect to such Security or Coupon shall be overdue, and none of the Company, the Guarantors, the Trustee or any agent of the Company, a Guarantor or the Trustee shall be affected by notice to the contrary.

No Holder of any beneficial interest in any global Security held on its behalf by a Depository shall have any rights under this Indenture with respect to such global Security, and such Depository may be treated by the Company, the Guarantors or the Trustee, and any agent of

the Company, a Guarantor or the Trustee as the owner of such global Security for all purposes whatsoever. None of the Company, the Guarantors, the Trustee, any Paying Agent or the Security Registrar will have any responsibility or liability for any aspect of the records relating to or payments made on account of beneficial ownership interests of a global Security or for maintaining, supervising or reviewing any records relating to such beneficial ownership interests.

Section 3.9. Cancellation.

All Securities and Coupons surrendered for payment, redemption, registration of transfer, exchange or conversion or for credit against any sinking fund payment shall, if surrendered to any Person other than the Trustee, be delivered to the Trustee, and any such Securities and Coupons, as well as Securities and Coupons surrendered directly to the Trustee for any such purpose, shall be cancelled promptly by the Trustee. The Company may at any time deliver to the Trustee for cancellation any Securities previously authenticated and delivered hereunder which the Company may have acquired in any manner whatsoever, and all Securities so delivered shall be cancelled promptly by the Trustee. No Securities shall be authenticated in lieu of or in exchange for any Securities cancelled as provided in this Section, except as expressly permitted by or pursuant to this Indenture. All cancelled Securities and Coupons held by the Trustee shall be returned to the Company pursuant to a Company Order.

Section 3.10. Computation of Interest.

Except as otherwise provided in or pursuant to this Indenture or in any Security, interest on the Securities shall be computed on the basis of a 360-day year of twelve 30-day months.

Section 3.11. Exempt Offerings.

(a) If specified pursuant to Section 3.01, the provisions set forth in this Section 3.11 shall apply with respect to the related Securities until two years after the later of the date of original issuance of the particular Security and the last date on which the Company, any Guarantor or any Affiliate of the Company or any Guarantor was the owner of such Security (or any predecessor Security) (the “Resale Restriction Termination Date”).

(b) Neither the Company nor any Guarantor shall, nor shall the Company or any Guarantor permit any of its Affiliates that are Subsidiaries to, purchase or agree to purchase or otherwise acquire any such Securities, whether as beneficial owner or otherwise (except as agent on behalf of and for the account of customers in the ordinary course of business as a securities broker in unsolicited broker’s transactions) unless, immediately upon any such purchase, such Securities are submitted to the Trustee for cancellation.

(c) Until the Resale Restriction Termination Date, each such Security shall bear substantially the following legend (the “Legend):

THIS SECURITY HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), OR ANY STATE

SECURITIES LAWS OR ANY OTHER APPLICABLE SECURITIES LAW. NEITHER THIS SECURITY NOR ANY INTEREST OR PARTICIPATION HEREIN MAY BE REOFFERED, SOLD, ASSIGNED, TRANSFERRED, PLEDGED, ENCUMBERED OR OTHERWISE DISPOSED OF IN THE ABSENCE OF SUCH REGISTRATION OR UNLESS SUCH TRANSACTION IS EXEMPT FROM, OR NOT SUBJECT TO, SUCH REGISTRATION.

THE HOLDER OF THIS SECURITY BY ITS ACCEPTANCE HEREOF AGREES TO OFFER, SELL OR OTHERWISE TRANSFER THIS SECURITY, PRIOR TO THE DATE (THE “RESALE RESTRICTION TERMINATION DATE”) WHICH IS TWO YEARS AFTER THE LATER OF THE ORIGINAL ISSUANCE DATE HEREOF AND THE LAST DATE ON WHICH THE COMPANY, ANY GUARANTOR OR ANY AFFILIATE OF THE COMPANY OR ANY GUARANTOR WAS THE OWNER OF THIS SECURITY (OR ANY PREDECESSOR OF THIS SECURITY) ONLY (A) TO THE COMPANY OR ANY GUARANTOR, (B) PURSUANT TO A REGISTRATION STATEMENT WHICH HAS BEEN DECLARED EFFECTIVE UNDER THE SECURITIES ACT, (C) SO LONG AS THIS SECURITY IS ELIGIBLE FOR RESALE PURSUANT TO RULE 144A UNDER THE SECURITIES ACT (“RULE 144A”), TO A PERSON IT REASONABLY BELIEVES IS A “QUALIFIED INSTITUTIONAL BUYER” (AS DEFINED IN RULE 144A) THAT PURCHASES FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF A QUALIFIED INSTITUTIONAL BUYER TO WHOM NOTICE IS GIVEN THAT THE TRANSFER IS BEING MADE IN RELIANCE ON RULE 144A, (D) TO AN INSTITUTIONAL “ACCREDITED INVESTOR” WITHIN THE MEANING OF SUBPARAGRAPH (a)(1), (2), (3) OR (7) OF RULE 501 UNDER THE SECURITIES ACT THAT IS ACQUIRING THIS SECURITY FOR ITS OWN ACCOUNT, OR FOR THE ACCOUNT OF SUCH AN INSTITUTIONAL ACCREDITED INVESTOR, FOR INVESTMENT PURPOSES AND NOT WITH A VIEW TO, OR FOR OFFER OR SALE IN CONNECTION WITH, ANY DISTRIBUTION IN VIOLATION OF THE SECURITIES ACT OR (E) PURSUANT TO ANY OTHER AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS UNDER THE SECURITIES ACT, SUBJECT TO THE RIGHT OF THE TRUSTEE, THE COMPANY AND THE GUARANTORS PRIOR TO ANY SUCH OFFER, SALE OR TRANSFER (i) PURSUANT TO CLAUSE (D) OR (E) TO REQUIRE THE DELIVERY OF AN OPINION OF COUNSEL, CERTIFICATIONS AND/OR OTHER INFORMATION SATISFACTORY TO EACH OF THEM AND (ii) PURSUANT TO CLAUSE (D) TO REQUIRE THAT THE TRANSFEROR DELIVER TO THE TRUSTEE A LETTER FROM THE TRANSFEREE SUBSTANTIALLY IN THE FORM OF APPENDIX A HERETO. SUCH HOLDER FURTHER AGREES THAT IT WILL DELIVER TO EACH PERSON TO WHOM THIS SECURITY IS TRANSFERRED A NOTICE SUBSTANTIALLY TO THE EFFECT OF THIS LEGEND.

PRIOR TO REGISTRATION, THIS SECURITY WILL BE ISSUED AND MAY BE TRANSFERRED ONLY IN MINIMUM DENOMINATIONS OF $100,000 AND INTEGRAL MULTIPLES OF $1,000 IN EXCESS THEREOF. ANY ATTEMPTED

TRANSFER OF LESS THAN $100,000 SHALL BE DEEMED TO BE VOID AND OF NO LEGAL EFFECT WHATSOEVER, ANY SUCH PURPORTED TRANSFEREE SHALL BE DEEMED NOT TO BE THE HOLDER FOR ANY PURPOSE, INCLUDING BUT NOT LIMITED TO THE RECEIPT OF PAYMENTS HEREON, AND SUCH PURPORTED TRANSFEREE SHALL BE DEEMED TO HAVE NO INTEREST WHATSOEVER HEREIN.

(d) Until the Resale Restriction Termination Date, the Trustee shall not register the resale or other transfer of a Security unless such resale or other transfer is made in accordance with the Legend set forth in clause (c) above.

(e) If Securities are issued upon the transfer, exchange or replacement of Securities bearing the Legend or if a request is made to remove the Legend on a Security, the Securities so issued shall bear the Legend or the Legend shall not be removed, as the case may be, unless there is delivered to the Company and the Trustee such satisfactory evidence that neither the Legend nor the resale and other transfer restrictions set forth therein are required to ensure that transfers thereof comply with the relevant provisions of the Securities Act of 1933, as amended (the “Securities Act”) or that such Securities are not “restricted securities” within the meaning of Rule 144 under the Securities Act.

(f) Securities and related documentation (including this Indenture) may be amended or supplemented from time to time by the Company, without the consent of but upon notice to the Holders of the Securities, to modify the restrictions on and procedures for resale and other transfers of the Securities and interests therein to reflect any change in applicable law or regulation (or the interpretation thereof) or in practices relating to the resale or other transfer of securities generally if the Trustee shall have received an Opinion of Counsel to the effect that such amendment or supplement is necessary or appropriate.

Section 3.12. CUSIP Numbers.

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

ARTICLE IV

Satisfaction and Discharge

Section 4.1. Satisfaction and Discharge of Indenture.

Upon the direction of the Company by a Company Order, this Indenture shall cease to be of further effect with respect to any series of Securities specified in such Company Order and any Coupons appertaining thereto, and the Trustee, on receipt of a Company Order, at the expense of the Company, shall execute proper instruments acknowledging satisfaction and discharge of this Indenture as to such series, when

(1) either

(a) all Securities of such series theretofore authenticated and made available for delivery and all Coupons appertaining thereto (other than (i) Coupons appertaining to Bearer Securities of such series surrendered in exchange for Registered Securities of such series and maturing after such exchange whose surrender is not required or has been waived as provided in Section 3.5, (ii) Securities and Coupons of such series which have been destroyed, lost or stolen and which have been replaced or paid as provided in Section 3.6, (iii) Coupons appertaining to Securities of such series called for redemption and maturing after the relevant Redemption Date whose surrender has been waived as provided in Section 11.7, and (iv) Securities and Coupons of such series for whose payment money has theretofore been deposited in trust or segregated and held in trust by the Company and thereafter repaid to the Company or discharged from such trust, as provided in Section 10.3) have been delivered to the Trustee for cancellation; or

(b) all Securities of such series and, in the case of (i) or (ii) below, any Coupons appertaining thereto not theretofore delivered to the Trustee for cancellation

(i) have become due and payable, or

(ii) will become due and payable at their Stated Maturity within one year, or

(iii) if redeemable at the option of the Company, are to be called for redemption within one year under arrangements satisfactory to the Trustee for the giving of notice of redemption by the Trustee in the name, and at the expense, of the Company,

and the Company, in the case of (i), (ii) or (iii) above, has deposited or caused to be deposited with the Trustee as trust funds in trust for such purpose, money in the Currency in which such Securities are payable in an amount sufficient to pay and discharge the entire indebtedness on such Securities and any Coupons appertaining thereto not theretofore delivered to the Trustee for cancellation,

including the principal of, any premium and interest on, and any Additional Amounts with respect to such Securities and any Coupons appertaining thereto, to the date of such deposit (in the case of Securities which have become due and payable) or to the Maturity thereof, as the case may be;

(2) the Company or the Guarantors have paid or caused to be paid all other sums payable hereunder by the Company and the Guarantors with respect to the Outstanding Securities of such series and any Coupons appertaining thereto; and

(3) the Company has delivered to the Trustee an Officers’ Certificate and an Opinion of Counsel and each Guarantor has delivered to the Trustee a Guarantor’s Officers’ Certificate, each stating that all conditions precedent herein provided for relating to the satisfaction and discharge of this Indenture as to such series have been complied with.

Upon the direction of the Company by a Company Order, this Indenture shall cease to be of any further effect if no series of Securities or any Coupons appertaining thereto are currently outstanding, and the Trustee, on receipt of a Company Order, at the expenses of the Company, shall execute proper instruments acknowledging satisfaction and discharge of this Indenture.

In the event there are Securities of two or more series hereunder, the Trustee shall be required to execute an instrument acknowledging satisfaction and discharge of this Indenture only if requested to do so with respect to Securities of such series as to which it is Trustee and if the other conditions thereto are met.

Notwithstanding the satisfaction and discharge of this Indenture with respect to any series of Securities, the obligations of the Company to the Trustee under Section 6.6 and, if money shall have been deposited with the Trustee pursuant to subclause (b) of clause (1) of this Section, the obligations of the Company, the Guarantors and the Trustee with respect to the Securities of such series under Sections 3.5, 3.6, 4.3, 10.2 and 10.3, with respect to the payment of Additional Amounts, if any, with respect to such Securities as contemplated by Section 10.4 (but only to the extent that the Additional Amounts payable with respect to such Securities exceed the amount deposited in respect of such Additional Amounts pursuant to Section 4.1(1)(b)), and with respect to any rights to convert or exchange such Securities into other securities shall survive.

Section 4.2. Defeasance and Covenant Defeasance.

(1) Unless pursuant to Section 3.1, either or both of (i) defeasance of the Securities of or within a series under clause (2) of this Section 4.2 shall not be applicable with respect to the Securities of such series or (ii) covenant defeasance of the Securities of or within a series under clause (3) of this Section 4.2 shall not be applicable with respect to the Securities of such series, then such provisions, together with the other provisions of this Section 4.2 (with such modifications thereto as may be specified pursuant to Section 3.1 with respect to any Securities), shall be applicable to such Securities and any Coupons appertaining thereto, and the Company may at its option by

Board Resolution, at any time, with respect to such Securities and any Coupons appertaining thereto, elect to have Section 4.2(2) or Section 4.2(3) be applied to such Outstanding Securities and any Coupons appertaining thereto upon compliance with the conditions set forth below in this Section 4.2.

(2) Upon the Company’s exercise of the above option applicable to this Section 4.2(2) with respect to any Securities of or within a series, the Company shall be deemed to have been discharged from its obligations with respect to such Outstanding Securities and any Coupons appertaining thereto on the date the conditions set forth in clause (4) of this Section 4.2 are satisfied (hereinafter, “defeasance”). For this purpose, such defeasance means that the Company shall be deemed to have paid and discharged the entire Indebtedness represented by such Outstanding Securities and any Coupons appertaining thereto, which shall thereafter be deemed to be “Outstanding” only for the purposes of clause (5) of this Section 4.2 and the other Sections of this Indenture referred to in clauses (i) and (ii) below, and to have satisfied all of its other obligations under such Securities and any Coupons appertaining thereto and this Indenture insofar as such Securities and any Coupons appertaining thereto are concerned (and the Trustee, at the expense of the Company, shall execute proper instruments acknowledging the same), except for the following which shall survive until otherwise terminated or discharged hereunder: (i) the rights of Holders of such Outstanding Securities and any Coupons appertaining thereto to receive, solely from the trust fund described in clause (4) of this Section 4.2 and as more fully set forth in such clause, payments in respect of the principal of (and premium, if any) and interest, if any, on, and Additional Amounts, if any, with respect to, such Securities and any Coupons appertaining thereto when such payments are due, and any rights of such Holder to convert such Securities into Common Stock or exchange such Securities for other securities, (ii) the obligations of the Company, the Guarantor and the Trustee with respect to such Securities under Sections 3.5, 3.6, 10.2 and 10.3 and with respect to the payment of Additional Amounts, if any, on such Securities as contemplated by Section 10.4 (but only to the extent that the Additional Amounts payable with respect to such Securities exceed the amount deposited in respect of such Additional Amounts pursuant to Section 4.2(4)(a) below), and with respect to any rights to convert such Securities into or exchange for other securities, (iii) the rights, powers, trusts, duties and immunities of the Trustee hereunder and (iv) this Section 4.2. The Company may exercise its option under this Section 4.2(2) notwithstanding the prior exercise of its option under clause (3) of this Section 4.2 with respect to such Securities and any Coupons appertaining thereto.

(3) Upon the Company’s exercise of the option to have this Section 4.2(3) apply with respect to any Securities of or within a series, the Company shall be released from its obligations under Sections 10.5 and 10.6, and, to the extent specified pursuant to Section 3.1(19), any other covenant applicable to such Securities, with respect to such Outstanding Securities and any Coupons appertaining thereto, on and after the date the conditions set forth in clause (4) of this Section 4.2 are satisfied (hereinafter, “covenant defeasance”), and such Securities and any Coupons appertaining thereto shall thereafter

be deemed to be 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 any such covenant, but shall continue to be deemed “Outstanding” for all other purposes hereunder. For this purpose, such covenant defeasance means that, with respect to such Outstanding Securities and any Coupons appertaining thereto, the Company may omit to comply with, and shall have no liability in respect of, any term, condition or limitation set forth in any such Section or such other covenant, whether directly or indirectly, by reason of any reference elsewhere herein to any such Section or such other covenant or by reason of reference in any such Section or such other covenant to any other provision herein or in any other document and such omission to comply shall not constitute a default or an Event of Default under Section 5.1(4) or 5.1(8) or otherwise, as the case may be, but, except as specified above, the remainder of this Indenture and such Securities and Coupons appertaining thereto shall be unaffected thereby.

(4) The following shall be the conditions to application of clause (2) or (3) of this Section 4.2 to any Outstanding Securities of or within a series and any Coupons appertaining thereto:

(a) The Company shall irrevocably have deposited or caused to be deposited with the Trustee (or another trustee satisfying the requirements of Section 6.7 who shall agree to comply with the provisions of this Section 4.2 applicable to it) as trust funds in trust for the purpose of making the following payments, specifically pledged as security for, and dedicated solely to, the benefit of the Holders of such Securities and any Coupons appertaining thereto, (1) an amount in Dollars or in such Foreign Currency in which such Securities and any Coupons appertaining thereto are then specified as payable at Stated Maturity, or (2) Government Obligations applicable to such Securities and Coupons appertaining thereto (determined on the basis of the Currency in which such Securities and Coupons appertaining thereto are then specified as payable at Stated Maturity) which through the scheduled payment of principal and interest in respect thereof in accordance with their terms will provide, not later than one day before the due date of any payment of principal of (and premium, if any) and interest, if any, on such Securities and any Coupons appertaining thereto, money in an amount, or (3) a combination thereof, in any case, in an amount, sufficient, without consideration of any reinvestment of such principal and interest, in the opinion of a nationally recognized firm of independent public accountants expressed in a written certification thereof delivered to the Trustee, to pay and discharge, and which shall be applied by the Trustee (or other qualifying trustee) to pay and discharge, (y) the principal of (and premium, if any) and interest, if any, on such Outstanding Securities and any Coupons appertaining thereto at the Stated Maturity of such principal or installment of principal or premium or interest and (z) any mandatory sinking fund payments or analogous payments applicable to such Outstanding Securities and any Coupons appertaining thereto on the days on which such payments are due and payable in accordance with the terms of this Indenture and of such Securities and any Coupons appertaining thereto.

(b) Such defeasance or covenant defeasance shall not result in a breach or violation of, or constitute a default under, this Indenture or any other material agreement or instrument to which the Company is a party or by which it is bound.

(c) No Event of Default or event which with notice or lapse of time or both would become an Event of Default with respect to such Securities and any Coupons appertaining thereto shall have occurred and be continuing on the date of such deposit and, with respect to defeasance only, at any time during the period ending on the 123rd day after the date of such deposit (it being understood that this condition shall not be deemed satisfied until the expiration of such period).

(d) In the case of an election under clause (2) of this Section 4.2, the Company shall have delivered to the Trustee an Opinion of Counsel stating that (i) the Company has received from the Internal Revenue Service a letter ruling, or there has been published by the Internal Revenue Service a Revenue Ruling, or (ii) since the date of execution 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 shall confirm that, the Holders of such Outstanding Securities and any Coupons appertaining thereto will not recognize income, gain or loss for Federal income tax purposes as a result of such 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 defeasance had not occurred.

(e) In the case of an election under clause (3) of this Section 4.2, the Company shall have delivered to the Trustee an Opinion of Counsel to the effect that the Holders of such Outstanding Securities and any Coupons appertaining thereto 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.

(f) The Company shall have delivered to the Trustee an Opinion of Counsel to the effect that, after the 123rd day after the date of deposit, all money and Government Obligations (or other property as may be provided pursuant to Section 3.1) (including the proceeds thereof) deposited or caused to be deposited with the Trustee (or other qualifying trustee) pursuant to this clause (4) to be held in trust will not be subject to any case or proceeding (whether voluntary or involuntary) in respect of the Company under any Federal or State bankruptcy, insolvency, reorganization or other similar law, or any decree or order for relief in respect of the Company issued in connection therewith.

(g) The Company shall have delivered to the Trustee an Officers’ Certificate and an Opinion of Counsel, each stating that all conditions precedent to the defeasance or covenant defeasance under clause (2) or (3) of this Section 4.2 (as the case may be) have been complied with.

(h) Notwithstanding any other provisions of this Section 4.2(4), such defeasance or covenant defeasance shall be effected in compliance with any additional or substitute terms, conditions or limitations which may be imposed on the Company in connection therewith pursuant to Section 3.1.

(5) Unless otherwise specified in or pursuant to this Indenture or any Security, if, after a deposit referred to in Section 4.2(4)(a) has been made, (a) the Holder of a Security in respect of which such deposit was made is entitled to, and does, elect pursuant to Section 3.1 or the terms of such Security to receive payment in a Currency other than that in which the deposit pursuant to Section 4.2(4)(a) has been made in respect of such Security, or (b) a Conversion Event occurs in respect of the Foreign Currency in which the deposit pursuant to Section 4.2(4)(a) has been made, the indebtedness represented by such Security and any Coupons appertaining thereto shall be deemed to have been, and will be, fully discharged and satisfied through the payment of the principal of (and premium, if any), and interest, if any, on, and Additional Amounts, if any, with respect to, such Security as the same becomes due out of the proceeds yielded by converting (from time to time as specified below in the case of any such election) the amount or other property deposited in respect of such Security into the Currency in which such Security becomes payable as a result of such election or Conversion Event based on (x) in the case of payments made pursuant to clause (a) above, the applicable market exchange rate for such Currency in effect on the second Business Day prior to each payment date, or (y) with respect to a Conversion Event, the applicable market exchange rate for such Foreign Currency in effect (as nearly as feasible) at the time of the Conversion Event.

The Company shall pay and indemnify the Trustee (or other qualifying trustee, collectively for purposes of this Section 4.2(5) and Section 4.3, the “Trustee”) against any tax, fee or other charge, imposed on or assessed against the Government Obligations deposited pursuant to this Section 4.2 or the principal or 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 such Outstanding Securities and any Coupons appertaining thereto.

Anything in this Section 4.2 to the contrary notwithstanding, the Trustee shall deliver or pay to the Company from time to time upon Company Request any money or Government Obligations (or other property and any proceeds therefrom) held by it as provided in clause (4) of this Section 4.2 which, in the opinion of a nationally recognized firm of Independent Public Accountants expressed in a written certification thereof delivered to the Trustee, are in excess of the amount thereof which would then be required to be deposited to effect a defeasance or covenant defeasance, as applicable, in accordance with this Section 4.2.

Section 4.3. Application of Trust Money.

Subject to the provisions of the last paragraph of Section 10.3, all money and Government Obligations (or other property as may be provided pursuant to Section 3.1)

(including the proceeds thereof) deposited with the Trustee pursuant to Section 4.1 or 4.2 in respect of any Outstanding Securities of any series and any Coupons appertaining thereto shall be held in trust and applied by the Trustee, in accordance with the provisions of such Securities and any Coupons appertaining thereto 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 Holders of such Securities and any Coupons appertaining thereto of all sums due and to become due thereon in respect of principal (and premium, if any) and interest and Additional Amounts, if any; but such money and Government Obligations need not be segregated from other funds except to the extent required by law.

ARTICLE V

Remedies

Section 5.1. Events of Default.

“Event of Default”, wherever used herein with respect to Securities of any series, means any one of the following events (whatever the reason for such Event of Default and whether it shall be voluntary or involuntary or be effected by operation of law or pursuant to any judgment, decree or order of any court or any order, rule or regulation of any administrative or governmental body), unless such event is specifically deleted or modified in or pursuant to the supplemental indenture, Board Resolution or Officers’ Certificate establishing the terms of such Series pursuant to this Indenture:

(1) default in the payment of any interest on any Security of such series, or any Additional Amounts payable with respect thereto, when such interest becomes or such Additional Amounts become due and payable, and continuance of such default for a period of 30 days; or

(2) default in the payment of the principal of or any premium on any Security of such series, or any Additional Amounts payable with respect thereto, when such principal or premium becomes or such Additional Amounts become due and payable at their Maturity; or

(3) default in the deposit of any sinking fund payment (if applicable) when and as due by the terms of a Security of such series; or

(4) default in the performance, or breach, of any covenant or warranty of the Company or any Guarantor in this Indenture or the Securities (other than a covenant or warranty a default in the performance or the breach of which is elsewhere in this Section specifically dealt with or which has been expressly included in this Indenture solely for the benefit of a series of Securities other than such series), and continuance of such default or breach for a period of 60 days after there has been given, by registered or certified mail, to the Company or such Guarantor, as the case may be, by the Trustee or to the Company or such Guarantor, as the case may be, and the Trustee by the Holders of at

least 25% in principal amount of the Outstanding Securities of such series, a written notice specifying such default or breach and requiring it to be remedied and stating that such notice is a “Notice of Default” hereunder; or

(5) if any of default (as defined in any mortgage, indenture or instrument under which there may be issued, or by which there may be secured or evidenced, any Indebtedness of the Company or any Restricted Subsidiary, whether such Indebtedness now exists or shall hereafter be created) shall happen and shall result in such Indebtedness in principal amount in excess of the greater of $25,000,000 or 30% of the outstanding principal amount of all Indebtedness of the Company and the Restricted Subsidiaries becoming due and payable or being declared due and payable prior to the date on which it would otherwise become due and payable, and such default shall not be cured within a period of 30 days after there shall have been given, by registered or certified mail, to the Company by the Trustee or to the Company and the Trustee by the Holders of at least 25% in principal amount of the Outstanding Securities of such series, a written notice specifying such default and requiring the Company to cause such default to be cured or to cause such Indebtedness to be discharged and stating that such notice is a “Notice of Default” hereunder; or

(6) the Company or any Restricted Subsidiary shall fail within 60 days to pay, bond or otherwise discharge any uninsured judgment or court order for the payment of money in excess of $25,000,000, which is not stayed on appeal or is not otherwise being appropriately contested in good faith; or

(7) the entry by a court having competent jurisdiction of:

(a) a decree or order for relief in respect of the Company, any Guarantor or any Restricted Subsidiary in an involuntary proceeding under any applicable bankruptcy, insolvency, reorganization or other similar law and such decree or order shall remain unstayed and in effect for a period of 60 consecutive days; or

(b) a decree or order adjudging the Company, any Guarantor or any Restricted Subsidiary to be insolvent, or approving a petition seeking reorganization, arrangement, adjustment or composition of the Company, any Guarantor or any Restricted Subsidiary and such decree or order shall remain unstayed and in effect for a period of 60 consecutive days; or

(c) a final and non-appealable order appointing a custodian, receiver, liquidator, assignee, trustee or other similar official of the Company, any Guarantor or any Restricted Subsidiary or of any substantial part of the property of the Company, any Guarantor or any Restricted Subsidiary, or ordering the winding up or liquidation of the affairs of the Company, any Guarantor or any Restricted Subsidiary; or

(8) the commencement by the Company, any Guarantor or any Restricted Subsidiary of a voluntary proceeding under any applicable bankruptcy, insolvency,

reorganization or other similar law or of a voluntary proceeding seeking to be adjudicated insolvent or the consent by the Company, any Guarantor or any Restricted Subsidiary to the entry of a decree or order for relief in an involuntary proceeding under any applicable bankruptcy, insolvency, reorganization or other similar law or to the commencement of any insolvency proceedings against it, or the filing by the Company, any Guarantor or any Restricted Subsidiary of a petition or answer or consent seeking reorganization, arrangement, adjustment or composition of the Company, any Guarantor or any Restricted Subsidiary or relief under any applicable law, or the consent by the Company, any Guarantor or any Restricted Subsidiary to the filing of such petition or to the appointment of or taking possession by a custodian, receiver, liquidator, assignee, trustee or similar official of the Company, any Guarantor or any Restricted Subsidiary or any substantial part of the property of the Company, any Guarantor or any Restricted Subsidiary or the making by the Company, any Guarantor or any Restricted Subsidiary of an assignment for the benefit of creditors, or the taking of corporate action by the Company, any Guarantor or any Restricted Subsidiary in furtherance of any such action; or

(9) any other Event of Default provided in or pursuant to this Indenture with respect to Securities of such series.

Section 5.2. Acceleration of Maturity; Rescission and Annulment.

If an Event of Default with respect to Securities of any series at the time Outstanding (other than an Event of Default specified in clause (7) or (8) of Section 5.1) occurs and is continuing, then the Trustee or the Holders of not less than 25% in principal amount of the Outstanding Securities of such series may declare the principal of all the Securities of such series, or such lesser amount as may be provided for in the Securities of such series, to be due and payable immediately, by a notice in writing to the Company (and to the Trustee if given by the Holders), and upon any such declaration such principal or such lesser amount shall become immediately due and payable.

If an Event of Default specified in clause (7) or (8) of Section 5.1 occurs, all unpaid principal of and accrued interest on the Outstanding Securities of that series (or such lesser amount as may be provided for in the Securities of such series) shall ipso facto become and be immediately due and payable without any declaration or other act on the part of the Trustee or any Holder of any Security of that series.

At any time after a declaration of acceleration with respect to the Securities of any series has been made and before a judgment or decree for payment of the money due has been obtained by the Trustee as hereinafter in this Article provided, the Holders of not less than a majority in principal amount of the Outstanding Securities of such series, by written notice to the Company and the Trustee, may rescind and annul such declaration and its consequences if

(1) the Company or any Guarantor has paid or deposited with the Trustee a sum of money sufficient to pay

(a) all overdue installments of any interest on and Additional Amounts with respect to all Securities of such series and any Coupon appertaining thereto,

(b) the principal of and any premium on any Securities of such series which have become due otherwise than by such declaration of acceleration and interest thereon and any Additional Amounts with respect thereto at the rate or rates borne by or provided for in such Securities,

(c) to the extent that payment of such interest or Additional Amounts is lawful, interest upon overdue installments of any interest and Additional Amounts at the rate or rates borne by or provided for in such Securities, and

(d) all sums paid or advanced by the Trustee hereunder and the reasonable compensation, expenses, disbursements and advances of the Trustee, its agents and counsel and all other amounts due the Trustee under Section 6.6; and

(2) all Events of Default with respect to Securities of such series, other than the non-payment of the principal of, any premium and interest on, and any Additional Amounts with respect to Securities of such series which shall have become due solely by such declaration of acceleration, shall have been cured or waived as provided in Section 5.13.

No such rescission shall affect any subsequent default or impair any right consequent thereon.

Section 5.3. Collection of Indebtedness and Suits for Enforcement by Trustee.

The Company covenants that if

(1) default is made in the payment of any installment of interest on or any Additional Amounts with respect to any Security or any Coupon appertaining thereto when such interest or Additional Amounts shall have become due and payable and such default continues for a period of 30 days, or

(2) default is made in the payment of the principal of or any premium on any Security or any Additional Amounts with respect thereto at their Maturity,

the Company shall, upon demand of the Trustee, pay to the Trustee, for the benefit of the Holders of such Securities and any Coupons appertaining thereto, the whole amount of money then due and payable with respect to such Securities and any Coupons appertaining thereto, with interest upon the overdue principal, any premium and, to the extent that payment of such interest shall be legally enforceable, upon any overdue installments of interest and Additional Amounts at the rate or rates borne by or provided for in such Securities, and, in addition thereto, such further amount of money 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 and all other amounts due to the Trustee under Section 6.6.

If the Company fails to pay the money it is required to pay the Trustee pursuant to the preceding paragraph forthwith upon the demand of the Trustee, the Trustee, in its own name and as trustee of an express trust, may institute a judicial proceeding for the collection of the money so due and unpaid, and may prosecute such proceeding to judgment or final decree, and may enforce the same against the Company or any Guarantor or any other obligor upon such Securities and any Coupons appertaining thereto and collect the monies adjudged or decreed to be payable in the manner provided by law out of the property of the Company or any Guarantor or any other obligor upon such Securities and any Coupons appertaining thereto, wherever situated.

If an Event of Default with respect to Securities of any series occurs and is continuing, the Trustee may in its discretion proceed to protect and enforce its rights and the rights of the Holders of Securities of such series and any Coupons appertaining thereto by such appropriate judicial proceedings as the Trustee shall deem most effectual to protect and enforce any such rights, whether for the specific enforcement of any covenant or agreement in this Indenture or such Securities or in aid of the exercise of any power granted herein or therein, or to enforce any other proper remedy.

Section 5.4. Trustee May File Proofs of Claim.

In case of the pendency of any receivership, insolvency, liquidation, bankruptcy, reorganization, arrangement, adjustment, composition or other judicial proceeding relative to the Company, any Guarantor or any Restricted Subsidiary or any other obligor upon the Securities of any series or the property of the Company, any Guarantor or any Restricted Subsidiary or such other obligor or their creditors, the Trustee (irrespective of whether the principal of the Securities shall then be due and payable as therein expressed or by declaration or otherwise and irrespective of whether the Trustee shall have made any demand on the Company or any Guarantor for the payment of any overdue principal, premium, interest or Additional Amounts) shall be entitled and empowered, by intervention in such proceeding or otherwise,

(1) to file and prove a claim for the whole amount, or such lesser amount as may be provided for in the Securities of any applicable series, of the principal and any premium, interest and Additional Amounts owing and unpaid in respect of the Securities and any Coupons appertaining thereto and to file such 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 or counsel) and of the Holders of Securities or any Coupons appertaining thereto allowed in such judicial proceeding, and

(2) to collect and receive any monies or other property payable or deliverable on any such claims and to distribute the same;

and any custodian, receiver, assignee, trustee, liquidator, sequestrator or other similar official in any such judicial proceeding is hereby authorized by each Holder of Securities or any Coupons 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 of Securities or any Coupons, 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 6.6.

Nothing herein contained shall be deemed to authorize the Trustee to authorize or consent to or accept or adopt on behalf of any Holder of a Security or any Coupon any plan of reorganization, arrangement, adjustment or composition affecting the Securities or Coupons or the rights of any Holder thereof, or to authorize the Trustee to vote in respect of the claim of any Holder of a Security or any Coupon in any such proceeding.

Section 5.5. Trustee May Enforce Claims without Possession of Securities or Coupons.

All rights of action and claims under this Indenture or any of the Securities or Coupons may be prosecuted and enforced by the Trustee without the possession of any of the Securities or Coupons or the production thereof in any proceeding relating thereto, and any such proceeding instituted by the Trustee shall be brought in its own name as trustee of an express trust, and any recovery or judgment, after provision for the payment of the reasonable compensation, expenses, disbursements and advances of the Trustee, its agents and counsel, shall be for the ratable benefit of each and every Holder of the Securities or Coupons in respect of which such judgment has been recovered.

Section 5.6. Application of Money Collected.

Any money collected by the Trustee pursuant to this Article shall be applied in the following order, at the date or dates fixed by the Trustee and, in case of the distribution of such money on account of principal, or any premium, interest or Additional Amounts, upon presentation of the Securities or Coupons, or both, as the case may be, and the notation thereon of the payment if only partially paid and upon surrender thereof if fully paid:

FIRST: To the payment of all amounts due the Trustee and any predecessor Trustee under Section 6.6;

SECOND: To the payment of the amounts then due and unpaid upon the Securities and any Coupons for principal and any premium, interest and Additional Amounts in respect of which or for the benefit of which such money has been collected, ratably, without preference or priority of any kind, according to the aggregate amounts due and payable on such Securities and Coupons for principal and any premium, interest and Additional Amounts, respectively;

THIRD: The balance, if any, to the Person or Persons entitled thereto.

Section 5.7. Limitations on Suits.

No Holder of any Security of any series or any Coupons appertaining thereto shall have any right to institute any proceeding, judicial or otherwise, with respect to this Indenture, or for the appointment of a receiver or trustee, or for any other remedy hereunder, unless

(1) such Holder has previously given written notice to the Trustee of a continuing Event of Default with respect to the Securities of such series;

(2) the Holders of not less than 25% in principal amount of the Outstanding Securities of such series shall have made written request to the Trustee to institute proceedings in respect of such Event of Default in its own name as Trustee hereunder;

(3) such Holder or Holders have offered to the Trustee such indemnity as is reasonably satisfactory to it against the costs, expenses and liabilities to be incurred in compliance with such request;

(4) the Trustee for 60 days after its receipt of such notice, request and offer of indemnity has failed to institute any such proceeding; and

(5) no direction inconsistent with such written request has been given to the Trustee during such 60-day period by the Holders of a majority in principal amount of the Outstanding Securities of such series;

it being understood and intended that no one or more of such Holders shall have any right in any manner whatever by virtue of, or by availing of, any provision of this Indenture or any Security to affect, disturb or prejudice the rights of any other such Holders or Holders of Securities of any other series, or to obtain or to seek to obtain priority or preference over any other Holders or to enforce any right under this Indenture, except in the manner herein provided and for the equal and ratable benefit of all such Holders.

Section 5.8. Unconditional Right of Holders to Receive Principal and any Premium, Interest and Additional Amounts.

Notwithstanding any other provision in this Indenture, the Holder of any Security or Coupon shall have the right, which is absolute and unconditional, to receive payment of the principal of, any premium and (subject to Sections 3.5 and 3.7) interest on, and any Additional Amounts with respect to such Security or payment of such Coupon, as the case may be, on the respective Stated Maturity or Maturities therefor specified in such Security or Coupon (or, in the case of redemption, on the Redemption Date or, in the case of repayment at the option of such Holder if provided in or pursuant to this Indenture, on the date such repayment is due) and to institute suit for the enforcement of any such payment, and such right shall not be impaired without the consent of such Holder.

Section 5.9. Restoration of Rights and Remedies.

If the Trustee or any Holder of a Security or a Coupon has instituted any proceeding to enforce any right or remedy under this Indenture and such proceeding has been discontinued or abandoned for any reason, or has been determined adversely to the Trustee or to such Holder, then and in every such case the Company, the Trustee and each such Holder shall, subject to any determination in such proceeding, be restored severally and respectively to their former positions hereunder, and thereafter all rights and remedies of the Trustee and each such Holder shall continue as though no such proceeding had been instituted.

Section 5.10. Rights and Remedies Cumulative.

Except as otherwise provided with respect to the replacement or payment of mutilated, destroyed, lost or stolen Securities or Coupons in the last paragraph of Section 3.6, no right or remedy herein conferred upon or reserved to the Trustee or to each and every Holder of a Security or a Coupon is intended to be exclusive of any other right or remedy, and every right and remedy, to the extent permitted by law, shall be cumulative and in addition to every other right and remedy given hereunder or now or hereafter existing at law or in equity or otherwise. The assertion or employment of any right or remedy hereunder, or otherwise, shall not, to the extent permitted by law, prevent the concurrent assertion or employment of any other appropriate right or remedy.

Section 5.11. Delay or Omission Not Waiver.

No delay or omission of the Trustee or of any Holder of any Security or Coupon to exercise any right or remedy accruing upon any Event of Default shall impair any such right or remedy or constitute a waiver of any such Event of Default or an acquiescence therein. Every right and remedy given by this Article or by law to the Trustee or to any Holder of a Security or a Coupon may be exercised from time to time, and as often as may be deemed expedient, by the Trustee or by such Holder, as the case may be.

Section 5.12. Control by Holders of Securities.

The Holders of a majority in principal amount of the Outstanding Securities of any series shall have the right to direct the time, method and place of conducting any proceeding for any remedy available to the Trustee or exercising any trust or power conferred on the Trustee with respect to the Securities of such series and any Coupons appertaining thereto, provided that

(1) such direction shall not be in conflict with any rule of law or with this Indenture or with the Securities of such series,

(2) the Trustee may take any other action deemed proper by the Trustee which is not inconsistent with such direction, and

(3) such direction is not unduly prejudicial to the rights of the other Holders of Securities of such series not joining in such action.

Section 5.13. Waiver of Past Defaults.

The Holders of not less than a majority in principal amount of the Outstanding Securities of any series on behalf of the Holders of all the Securities of such series and any Coupons appertaining thereto may waive any past default hereunder with respect to such series and its consequences, except a default

(1) in the payment of the principal of, any premium or interest on, or any Additional Amounts with respect to, any Security of such series or any Coupons appertaining thereto, or

(2) in respect of a covenant or provision hereof which under Article IX cannot be modified or amended without the consent of the Holder of each Outstanding Security of such series affected.

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

Section 5.14. Waiver of Usury, Stay or Extension Laws.

Each of the Company and the Guarantors covenants that (to the extent that it may lawfully do so) it will not at any time insist upon, or plead, or in any manner whatsoever claim or take the benefit or advantage of, any usury, stay or extension law wherever enacted, now or at any time hereafter in force, which may affect the covenants or the performance of this Indenture; and each of the Company and the Guarantors expressly waives (to the extent that it may lawfully do so) all benefit or advantage of any such law and covenants that it will not 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 had been enacted.

Section 5.15. Undertaking for Costs.

All parties to this Indenture agree, and each Holder of any Security by his acceptance thereof shall be deemed to have agreed, that any court may in its discretion require, 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 Trustee, the filing by any party litigant in such suit of any undertaking to pay the costs of such suit, and that such court may in its discretion assess reasonable costs, including reasonable attorneys’ fees, against any party litigant in such suit having due regard to the merits and good faith of the claims or defenses made by such party litigant; but the provisions of this Section 5.15 shall not apply to any suit instituted by the Trustee, to any suit instituted by any Holder, or group of Holders, holding in the aggregate more than 10% in principal amount of Outstanding Securities of any series, or to any suit instituted by

any Holder for the enforcement of the payment of the principal of (or premium, if any) or interest, if any, on or Additional Amounts, if any, with respect to any Security on or after the respective Stated Maturities expressed in such Security (or, in the case of redemption, on or after the Redemption Date, and, in the case of repayment, on or after the date for repayment) or for the enforcement of the right, if any, to convert or exchange any Security into or other securities in accordance with its terms.

ARTICLE VI

The Trustee

Section 6.1. Certain Duties and Responsibilities.

Subject to the provisions hereof:

(1) the Trustee may conclusively rely and shall be fully protected in acting or refraining from acting upon any resolution, certificate, statement, instrument, opinion, report, notice, request, direction, consent, order, bond, debenture, note, coupon or other paper or document reasonably believed by it to be genuine and to have been signed or presented by the proper party or parties;

(2) any request or direction of the Company mentioned herein shall be sufficiently evidenced by a Company Request or a Company Order or of the Guarantor mentioned herein shall be sufficiently evidenced by a Guarantor Request or Guarantor Order (in each case, other than delivery of any Security, together with any Coupons appertaining thereto, to the Trustee for authentication and delivery pursuant to Section 3.3 which shall be sufficiently evidenced as provided therein) and any resolution of the Board of Directors may be sufficiently evidenced by a Board Resolution or by the Guarantor’s Board of Directors may be sufficiently evidenced by a Guarantor’s Board Resolution;

(3) whenever in the administration of this Indenture the Trustee shall deem it desirable that a matter be proved or established prior to taking, suffering or omitting any action hereunder, the Trustee (unless other evidence shall be herein specifically prescribed) may, in the absence of bad faith on its part, rely upon an Officers’ Certificate or, if such matter pertains to the Guarantor, a Guarantor’s Officers’ Certificate;

(4) the Trustee may consult with counsel of its selection and the advice of such counsel or any Opinion of Counsel shall be full and complete authorization and protection in respect of any action taken, suffered or omitted by it hereunder in good faith and in reliance thereon;

(5) the Trustee shall be under no obligation to exercise any of the rights or powers vested in it by or pursuant to this Indenture at the request or direction of any of the Holders of Securities of any series or any Coupons appertaining thereto pursuant to this

Indenture, unless such Holders shall have offered to the Trustee such security or indemnity as is reasonably satisfactory to it against the costs, expenses and liabilities which might be incurred by it in compliance with such request or direction;

(6) the Trustee shall not be bound to make any investigation into the facts or matters stated in any resolution, certificate, statement, instrument, opinion, report, notice, request, direction, consent, order, bond, debenture, coupon or other paper or document, but the Trustee, in its discretion, may but shall not be obligated to make such further inquiry or investigation into such facts or matters as it may see fit, and, if the Trustee shall determine to make such further inquiry or investigation, it shall be entitled to examine, during business hours and upon reasonable notice, the books, records and premises of the Company and the Guarantors, personally or by agent or attorney;

(7) the Trustee may execute any of the trusts or powers hereunder or perform any duties hereunder either directly or by or through agents or attorneys and the Trustee shall not be responsible for any misconduct or negligence on the part of any agent or attorney appointed with due care by it hereunder.

(8) in the event that an Event of Default has occurred and is continuing, the Trustee shall exercise such of the rights and powers vested in it by this Indenture, and use the same degree of care and skill in their exercise, as a prudent man would exercise or use under the circumstances in the conduct of his own affairs;

(9) the Trustee shall not be liable for any action taken or error of judgment made in good faith by a Responsible Officer or Responsible Officers of the Trustee, unless it shall be proved that the Trustee was negligent, acted in bad faith or engaged in willful misconduct;

(10) the Trustee undertakes to perform such duties and only such duties as are specifically set forth in or pursuant to this Indenture, and no implied covenants or obligations shall be read into this Indenture against the Trustee;

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

(12) the Trustee shall not be liable with respect to any action taken, suffered or omitted to be taken by it in good faith in accordance with an Act of the Holders hereunder, and, to the extent not so provided herein, with respect to any act requiring the Trustee to exercise its own discretion, relating to the time, method and place of

conducting any proceeding for any remedy available to the Trustee, or exercising any trust or power conferred upon the Trustee, under this Indenture or any Securities, unless it shall be proved that, in connection with any such action taken, suffered or omitted or any such act, the Trustee was negligent, acted in bad faith or engaged in willful misconduct.

(13) no provision of this Indenture shall require the Trustee to expend or risk its own funds or otherwise incur any financial liability in the performance of any of its duties hereunder, or in the exercise of any of its rights or powers, if it shall have reasonable grounds for believing that repayment of such funds or adequate indemnity against such risk or liability is not reasonably assured to it.

(14) whether or not herein expressly so provided, every provision of this Indenture relating to the conduct or affecting the liability of or affording protection to the Trustee shall be subject to the provisions of this Section.

Section 6.2. Notice of Defaults.

Within 90 days after the occurrence of any default hereunder with respect to the Securities of any series, the Trustee shall transmit by mail to all Holders of Securities of such series entitled to receive reports pursuant to Section 7.3(3), notice of such default hereunder actually known to a Responsible Officer of the Trustee, unless such default shall have been cured or waived; provided, however, that, except in the case of a default in the payment of the principal of (or premium, if any), or interest, if any, on, or Additional Amounts or any sinking fund or purchase fund installment with respect to, any Security of such series, the Trustee shall be protected in withholding such notice if and so long as the board of directors, the executive committee or a trust committee of directors and/or Responsible Officers of the Trustee in good faith determine that the withholding of such notice is in the best interest of the Holders of Securities and Coupons of such series; and provided, further, that in the case of any default of the character specified in Section 5.1(5) with respect to Securities of such series, no such notice to Holders shall be given until at least 30 days after the occurrence thereof. For the purpose of this Section, the term “default” means any event which is, or after notice or lapse of time or both would become, an Event of Default with respect to Securities of such series.

The Trustee shall not be deemed to have knowledge or notice of any Default or Event of Default unless a Responsible Officer of the Trustee has actual knowledge thereof or, in the performance of its duties hereunder, should have actual knowledge thereof, or unless written notice of any event which is in fact such a default is received by the Trustee at the Corporate Trust Office of the Trustee, and such notice references the Securities and this Indenture.

Section 6.3. Not Responsible for Recitals or Issuance of Securities.

The recitals contained herein and in the Securities, except the Trustee’s certificate of authentication, and in any Coupons shall be taken as the statements of the Company and neither the Trustee nor any Authenticating Agent assumes any responsibility for their correctness. The Trustee makes no representations as to the validity or sufficiency of this Indenture or of the

Securities or the Coupons, except that the Trustee represents that it is duly authorized to execute and deliver this Indenture, authenticate the Securities and perform its obligations hereunder and that the statements made by it in a Statement of Eligibility on Form T-1 supplied to the Company are true and accurate, subject to the qualifications set forth therein. Neither the Trustee nor any Authenticating Agent shall be accountable for the use or application by the Company of the Securities or the proceeds thereof.

Section 6.4. May Hold Securities.

The Trustee, any Authenticating Agent, any Paying Agent, any Security Registrar or any other Person that may be an agent of the Trustee, the Company or any Guarantor, in its individual or any other capacity, may become the owner or pledgee of Securities or Coupons and, subject to Sections 6.8 and 6.12, may otherwise deal with the Company or any Guarantor with the same rights it would have if it were not the Trustee, Authenticating Agent, Paying Agent, Security Registrar or such other Person.

Section 6.5. Money Held in Trust.

Except as provided in Section 4.3 and Section 10.3, money held by the Trustee in trust hereunder need not be segregated from other funds except to the extent required by law and shall be held uninvested. The Trustee shall be under no liability for interest on any money received by it hereunder except as otherwise agreed to in writing with the Company or any Guarantor.

Section 6.6. Compensation and Reimbursement.

The Company agrees:

(1) to pay to the Trustee such compensation as the Company and the Trustee shall from time to time agree in writing for all services rendered by the Trustee hereunder (which compensation shall not be limited by any provision of law in regard to the compensation of a trustee of an express trust);

(2) except as otherwise expressly provided herein, to reimburse the Trustee upon its request for all reasonable expenses, disbursements and advances incurred or made by the Trustee in accordance with any provision of this Indenture or arising out of or in connection with the acceptance or administration of the trust or trusts hereunder (including the reasonable compensation and the expenses and disbursements of its agents and counsel), except any such expense, disbursement or advance as may be attributable to the Trustee’s negligence or bad faith; and

(3) to indemnify the Trustee and any predecessor Trustee and their agents, officers, directors and employees for, and to hold them harmless against, any loss, liability or expense including taxes (other than taxes based upon, measured by or determined by the income of the Trustee) incurred without negligence or bad faith on their part, arising out of or in connection with the acceptance or administration of the

trust or trusts hereunder, including the costs and expenses of defending themselves against any claim or liability in connection with the exercise or performance of any of their powers or duties hereunder, except to the extent that any such loss, liability or expense was due to the Trustee’s negligence or bad faith.

As security for the performance of the obligations of the Company under this Section, the Trustee shall have a lien prior to the Securities of any series upon all property and funds held or collected by the Trustee as such, except funds held in trust for the payment of principal of, and premium or interest on or any Additional Amounts with respect to Securities or any Coupons appertaining thereto.

To the extent permitted by law, any compensation or expense incurred by the Trustee after a default specified in or pursuant to Section 5.1 is intended to constitute an expense of administration under any then applicable bankruptcy or insolvency law. “Trustee” for purposes of this Section 6.6 shall include any predecessor Trustee but the negligence or bad faith of any Trustee shall not affect the rights of any other Trustee under this Section 6.6.

The provisions of this Section 6.6 shall survive the satisfaction and discharge of this Indenture or the earlier resignation or removal of the Trustee and shall apply with equal force and effect to the Trustee in its capacity as Authenticating Agent, Paying Agent or Security Registrar.

Section 6.7. Corporate Trustee Required; Eligibility.

There shall at all times be a Trustee hereunder that is a Corporation organized and doing business under the laws of the United States of America, any state thereof or the District of Columbia, that is eligible under Section 310(a)(1) of the Trust Indenture Act to act as trustee under an indenture qualified under the Trust Indenture Act and that has a combined capital and surplus (computed in accordance with Section 310(a)(2) of the Trust Indenture Act) of at least $50,000,000, and that is subject to supervision or examination by Federal or state authority. If at any time the Trustee shall cease to be eligible in accordance with the provisions of this Section, it shall resign immediately in the manner and with the effect hereinafter specified in this Article.

Section 6.8. Disqualification; Conflicting Interests.

If the Trustee has or shall acquire a conflicting interest within the meaning of the Trust Indenture Act, the Trustee shall either eliminate such interest or resign, to the extent and in the manner provided by, and subject to the provisions of, the Trust Indenture Act and this Indenture.

Section 6.9. Resignation and Removal; Appointment of Successor.

(1) No resignation or removal of the Trustee and no appointment of a successor Trustee pursuant to this Article shall become effective until the acceptance of appointment by the successor Trustee pursuant to Section 6.10.

(2) Subject to Section 6.9(1) above, the Trustee may resign at any time with respect to the Securities of one or more series by giving written notice thereof to the Company. If the instrument of acceptance by a successor Trustee required by Section 6.10 shall not have been delivered to the Trustee within 30 days after the giving of such notice of resignation, the resigning Trustee may petition any court of competent jurisdiction for the appointment of a successor Trustee with respect to such series.

(3) The Trustee may be removed at any time with respect to the Securities of any series by Act of the Holders of a majority in principal amount of the Outstanding Securities of such series, delivered to the Trustee and the Company. If the instrument of acceptance by a successor Trustee required by Section 6.10 shall not have been delivered to the Trustee within 30 days after the giving of such notice of removal, the removed Trustee may petition any court of competent jurisdiction for the appointment of a successor Trustee with respect to such series.

(4) If at any time:

(a) the Trustee shall fail to comply with the obligations imposed upon an indenture trustee under Section 310(b) of the Trust Indenture Act with respect to Securities of any series after written request therefor by the Company or any Holder of a Security of such series who has been a bona fide Holder of a Security of such series for at least six months, or

(b) the Trustee shall cease to be eligible under Section 6.7 and shall fail to resign after written request therefor by the Company or any such Holder, or

(c) the Trustee shall become incapable of acting or shall be adjudged a bankrupt or insolvent or a receiver of the Trustee or of its property shall be appointed or any public officer shall take charge or control of the Trustee or of its property or affairs for the purpose of rehabilitation, conservation or liquidation,

then, in any such case, (i) the Company, by or pursuant to a Board Resolution, may remove the Trustee with respect to all Securities or the Securities of such series, or (ii) subject to Section 315(e) of the Trust Indenture Act, any Holder of a Security who has been a bona fide Holder of a Security of such series for at least six months may, on behalf of himself and all others similarly situated, petition any court of competent jurisdiction for the removal of the Trustee with respect to all Securities of such series and the appointment of a successor Trustee or Trustees.

(5) If the Trustee shall resign, be removed or become incapable of acting, or if a vacancy shall occur in the office of Trustee for any cause, with respect to the Securities of one or more series, the Company, by or pursuant to a Board Resolution, shall promptly appoint a successor Trustee or Trustees with respect to the Securities of such series (it being understood that any such successor Trustee may be appointed with respect to the Securities of one or more or all of such series and that at any time there shall be only one Trustee with respect to the Securities of any particular series) and shall comply with the

applicable requirements of Section 6.10. If, within one year after such resignation, removal or incapacity, or the occurrence of such vacancy, a successor Trustee with respect to the Securities of any series shall be appointed by Act of the Holders of a majority in principal amount of the Outstanding Securities of such series delivered to the Company and the retiring Trustee, the successor Trustee so appointed shall, forthwith upon its acceptance of such appointment in accordance with the applicable requirements of Section 6.10, become the successor Trustee with respect to the Securities of such series and to that extent supersede the successor Trustee appointed by the Company. If no successor Trustee with respect to the Securities of any series shall have been so appointed by the Company or the Holders of Securities and accepted appointment in the manner required by Section 6.10, any Holder of a Security who has been a bona fide Holder of a Security of such series for at least six months may, on behalf of himself and all others similarly situated, petition any court of competent jurisdiction for the appointment of a successor Trustee with respect to the Securities of such series.

(6) The Company shall give notice of each resignation and each removal of the Trustee with respect to the Securities of any series and each appointment of a successor Trustee with respect to the Securities of any series by mailing written notice of such event by first-class mail, postage prepaid, to the Holders of Registered Securities, if any, of such series as their names and addresses appear in the Security Register and, if Securities of such series are issued as Bearer Securities, by publishing notice of such event once in an Authorized Newspaper in each Place of Payment located outside the United States. Each notice shall include the name of the successor Trustee with respect to the Securities of such series and the address of its Corporate Trust Office.

(7) In no event shall any retiring Trustee be liable for the acts or omissions of any successor Trustee hereunder.

Section 6.10. Acceptance of Appointment by Successor.

(1) Upon the appointment hereunder of any successor Trustee with respect to all Securities, such successor Trustee so appointed shall execute, acknowledge and deliver to the Company and the retiring Trustee an instrument accepting such appointment, and thereupon the resignation or removal of the retiring Trustee shall become effective and such successor Trustee, without any further act, deed or conveyance, shall become vested with all the rights, powers, trusts and duties hereunder of the retiring Trustee; but, on the request of the Company or such successor Trustee, such retiring Trustee, upon payment of its charges, shall execute and deliver an instrument transferring to such successor Trustee all the rights, powers and trusts of the retiring Trustee and, subject to Section 10.3, shall duly assign, transfer and deliver to such successor Trustee all property and money held by such retiring Trustee hereunder, subject nevertheless to its claim, if any, provided for in Section 6.6.

(2) Upon the appointment hereunder of any successor Trustee with respect to the Securities of one or more (but not all) series, the Company, the retiring Trustee and such successor Trustee shall execute and deliver an indenture supplemental hereto wherein each successor Trustee shall accept such appointment and which (a) shall contain such provisions as shall be necessary or desirable to transfer and confirm to, and to vest in, such successor Trustee all the rights, powers, trusts and duties of the retiring Trustee with respect to the Securities of that or those series to which the appointment of such successor Trustee relates, (b) if the retiring Trustee is not retiring with respect to all Securities, shall contain such provisions as shall be deemed necessary or desirable to confirm that all the rights, powers, trusts and duties of the retiring Trustee with respect to the Securities of that or those series as to which the retiring Trustee is not retiring shall continue to be vested in the retiring Trustee, and (c) shall add to or change any of the provisions of this Indenture as shall be necessary to provide for or facilitate the administration of the trusts hereunder by more than one Trustee, it being understood that nothing herein or in such supplemental indenture shall constitute such Trustees co-trustees of the same trust, that each such Trustee shall be trustee of a trust or trusts hereunder separate and apart from any trust or trusts hereunder administered by any other such Trustee and that no Trustee shall be responsible for any notice given to, or received by, or any act or failure to act on the part of any other Trustee hereunder, and, upon the execution and delivery of such supplemental indenture, the resignation or removal of the retiring Trustee shall become effective to the extent provided therein, such retiring Trustee shall have no further responsibility for the exercise of rights and powers or for the performance of the duties and obligations vested in the Trustee under this Indenture with respect to the Securities of that or those series to which the appointment of such successor Trustee relates other than as hereinafter expressly set forth, and such successor Trustee, without any further act, deed or conveyance, shall become vested with all the rights, powers, trusts and duties of the retiring Trustee with respect to the Securities of that or those series to which the appointment of such successor Trustee relates; but, on request of the Company or such successor Trustee, such retiring Trustee, upon payment of its charges with respect to the Securities of that or those series to which the appointment of such successor Trustee relates and subject to Section 10.3 shall duly assign, transfer and deliver to such successor Trustee, to the extent contemplated by such supplemental indenture, the property and money held by such retiring Trustee hereunder with respect to the Securities of that or those series to which the appointment of such successor Trustee relates, subject to its claim, if any, provided for in Section 6.6.

(3) Upon request of any Person appointed hereunder as a successor Trustee, the Company and the Guarantors shall execute any and all instruments for more fully and certainly vesting in and confirming to such successor Trustee all such rights, powers and trusts referred to in paragraph (1) or (2) of this Section, as the case may be.

(4) No Person shall accept its appointment hereunder as a successor Trustee unless at the time of such acceptance such successor Person shall be qualified and eligible under this Article.

Section 6.11. Merger, Conversion, Consolidation or Succession to Business.

Any Corporation into which the Trustee may be merged or converted or with which it may be consolidated, or any Corporation resulting from any merger, conversion or consolidation to which the Trustee shall be a party, or any Corporation succeeding to all or substantially all of the corporate trust business of the Trustee, shall be the successor of the Trustee hereunder, without the execution or filing of any paper or any further act on the part of any of the parties hereto. In case any Securities shall have been authenticated but not delivered by the Trustee then in office, any successor by merger, conversion or consolidation to such authenticating Trustee may adopt such authentication and deliver the Securities so authenticated with the same effect as if such successor Trustee had itself authenticated such Securities.

Section 6.12. Preferential Collection of Claims against the Company.

If and when the Trustee shall be or become a creditor, directly or indirectly, secured or unsecured, of the Company or any Guarantor (or any other obligor upon the Securities of any series or the Coupons, if any, appertaining thereto), the Trustee shall be subject to the provisions of Section 311 of the Trust Indenture Act regarding the collection of claims against the Company or such Guarantor (or any such other obligor).

Section 6.13. Appointment of Authenticating Agent.

The Trustee may appoint one or more Authenticating Agents acceptable to the Company with respect to one or more series of Securities which shall be authorized to act on behalf of the Trustee to authenticate Securities of that or those series issued upon original issue, exchange, registration of transfer, partial redemption or partial repayment or pursuant to Section 3.6, and Securities so authenticated shall be entitled to the benefits of this Indenture and shall be valid and obligatory for all purposes as if authenticated by the Trustee hereunder. Wherever reference is made in this Indenture to the authentication and delivery of Securities by the Trustee or the Trustee’s certificate of authentication, such reference shall be deemed to include authentication and delivery on behalf of the Trustee by an Authenticating Agent and a certificate of authentication executed on behalf of the Trustee by an Authenticating Agent.

Each Authenticating Agent must be acceptable to the Company and, except as provided in or pursuant to this Indenture, shall at all times be a corporation that would be permitted by the Trust Indenture Act to act as trustee under an indenture qualified under the Trust Indenture Act, is authorized under applicable law and by its charter to act as an Authenticating Agent and has a combined capital and surplus (computed in accordance with Section 310(a)(2) of the Trust Indenture Act) of at least $50,000,000. If at any time an Authenticating Agent shall cease to be eligible in accordance with the provisions of this Section, it shall resign immediately in the manner and with the effect specified in this Section.

Any Corporation into which an Authenticating Agent may be merged or converted or with which it may be consolidated, or any Corporation resulting from any merger, conversion or consolidation to which such Authenticating Agent shall be a party, or any Corporation

succeeding to all or substantially all of the corporate agency or corporate trust business of an Authenticating Agent, shall be the successor of such Authenticating Agent hereunder, provided such Corporation shall be otherwise eligible under this Section, without the execution or filing of any paper or any further act on the part of the Trustee or the Authenticating Agent.

An Authenticating Agent may resign at any time by giving written notice thereof to the Trustee and the Company. The Trustee may at any time terminate the agency of an Authenticating Agent by giving written notice thereof to such Authenticating Agent and the Company. Upon receiving such a notice of resignation or upon such a termination, or in case at any time such Authenticating Agent shall cease to be eligible in accordance with the provisions of this Section, the Trustee may appoint a successor Authenticating Agent which shall be acceptable to the Company and shall (i) mail written notice of such appointment by first-class mail, postage prepaid, to all Holders of Registered Securities, if any, of the series with respect to which such Authenticating Agent shall serve, as their names and addresses appear in the Security Register, and (ii) if Securities of the series are issued as Bearer Securities, publish notice of such appointment at least once in an Authorized Newspaper in the place where such successor Authenticating Agent has its principal office if such office is located outside the United States. Any successor Authenticating Agent, upon acceptance of its appointment hereunder, shall become vested with all the rights, powers and duties of its predecessor hereunder, with like effect as if originally named as an Authenticating Agent. No successor Authenticating Agent shall be appointed unless eligible under the provisions of this Section.

The Company agrees to pay each Authenticating Agent from time to time reasonable compensation for its services under this Section. If the Trustee makes such payments, it shall be entitled to be reimbursed for such payments, subject to the provisions of Section 6.6.

The provisions of Sections 3.8, 6.3 and 6.4 shall be applicable to each Authenticating Agent.

If an Authenticating Agent is appointed with respect to one or more series of Securities pursuant to this Section, the Securities of such series may have endorsed thereon, in addition to or in lieu of the Trustee’s certificate of authentication, an alternate certificate of authentication in substantially the following form:

This is one of the Securities of the series designated herein referred to in the within-mentioned Indenture.

Dated:


THE BANK OF NEW YORK, as Trustee

By
		as Authenticating Agent

By
		Authorized Signatory

If all of the Securities of any series may not be originally issued at one time, and if the Trustee does not have an office capable of authenticating Securities upon original issuance located in a Place of Payment where the Company wishes to have Securities of such series authenticated upon original issuance, the Trustee, if so requested in writing (which writing need not be accompanied by or contained in an Officers’ Certificate by the Company), shall appoint in accordance with this Section an Authenticating Agent having an office in a Place of Payment designated by the Company with respect to such series of Securities.

ARTICLE VII

Holders’ Lists and Reports by Trustee, the Guarantors and Company

Section 7.1. Company and the Guarantors to Furnish Trustee Names and Addresses of Holders.

The Company and the Guarantors shall furnish or cause to be furnished to the Trustee:

(1) semi-annually with respect to Securities of each series not later than January 15 and July 15 of the year, commencing January 15, 1999, or upon such other dates as are set forth in or pursuant to the Board Resolution or indenture supplemental hereto authorizing such series, a list, in each case in such form as the Trustee may reasonably require, of the names and addresses of Holders as of the applicable date, and

(a) at such other times as the Trustee may request in writing, within 30 days after the receipt by the Company or a Guarantor of any such request, a list of similar form and content as of a date not more than 15 days prior to the time such list is furnished,

provided, however, that so long as the Trustee is the Security Registrar no such list shall be requested to be furnished.

Section 7.2. Preservation of Information; Communications to Holders.

(1) The Trustee shall preserve, in as current a form as is reasonably practicable, the names and addresses of Holders contained in the most recent list furnished to the Trustee as provided in Section 7.1 and the names and addresses of Holders received by the Trustee in its capacity as Security Registrar. The Trustee may destroy any list furnished to it as provided in Section 7.1 upon receipt of a new list so furnished.

(2) The rights of the Holders to communicate with other Holders with respect to their rights under this Indenture or under the Securities, and the corresponding rights and privileges of the Trustee, shall be as provided by the Trust Indenture Act.

(3) Every Holder of Securities, by receiving and holding the same, agrees with the Company, the Guarantors and the Trustee that neither the Company, any Guarantor nor the Trustee nor any agent of either of them shall be held accountable by reason of any disclosure of information as to names and addresses of Holders made pursuant to the Trust Indenture Act.

Section 7.3. Reports by Trustee.

(1) Within 60 days after September 15 of each year commencing with the first September 15 following the first issuance of Securities pursuant to Section 3.1, if

required by Section 313(a) of the Trust Indenture Act, the Trustee shall transmit, pursuant to Section 313(c) of the Trust Indenture Act, a brief report dated as of such September 15 with respect to any of the events specified in said Section 313(a) which may have occurred since the later of the immediately preceding September 15 and the date of this Indenture.

(2) The Trustee shall transmit the reports required by Section 313(a) of the Trust Indenture Act at the times specified therein.

(3) Reports pursuant to this Section shall be transmitted in the manner and to the Persons required by Sections 313(c) and 313(d) of the Trust Indenture Act.

Section 7.4. Reports by Company and the Guarantors.

The Company and the Guarantors, pursuant to Section 314(a) of the Trust Indenture Act, shall:

(1) file with the Trustee, within 15 days after the Company or any Guarantor, as the case may be, is required to file the same with the Commission, copies of the annual reports and of the information, documents and other reports (or copies of such portions of any of the foregoing as the Commission may from time to time by rules and regulations prescribe) which the Company or such Guarantor, as the case may be, may be required to file with the Commission pursuant to Section 13 or Section 15(d) of the Securities Exchange Act of 1934, as amended; or, if the Company or any Guarantor, as the case may be, is not required to file information, documents or reports pursuant to either of said Sections, then it shall file with the Trustee and the Commission, in accordance with rules and regulations prescribed from time to time by the Commission, such of the supplementary and periodic information, documents and reports which may be required pursuant to Section 13 of the Securities Exchange Act of 1934, as amended, in respect of a security listed and registered on a national securities exchange as may be prescribed from time to time in such rules and regulations;

(2) file with the Trustee and the Commission, in accordance with rules and regulations prescribed from time to time by the Commission, such additional information, documents and reports with respect to compliance by the Company or any Guarantor, as the case may be, with the conditions and covenants of this Indenture as may be required from time to time by such rules and regulations; and

(3) transmit within 30 days after the filing thereof with the Trustee, in the manner and to the extent provided in Section 313(c) of the Trust Indenture Act, such summaries of any information, documents and reports required to be filed by the Company or any Guarantor pursuant to paragraphs (1) and (2) of this Section as may be required by rules and regulations prescribed from time to time by the Commission.

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

ARTICLE VIII

Consolidation, Merger, Conveyance, Transfer or Lease

Section 8.1. Company May Consolidate, Etc., Only on Certain Terms.

The Company shall not consolidate with or merge into any other Person (whether or not affiliated with the Company), or convey, transfer or lease its properties and assets as an entirety or substantially as an entirety to any other Person (whether or not affiliated with the Company), and the Company shall not permit any other Person (whether or not affiliated with the Company) to consolidate with or merge into the Company or convey, transfer or lease its properties and assets as an entirety or substantially as an entirety to the Company; unless:

(1) in case the Company shall consolidate with or merge into another Person or convey, transfer or lease its properties and assets as an entirety or substantially as an entirety to any Person, the Person formed by such consolidation or into which the Company is merged or the Person which acquires by conveyance or transfer, or which leases, the properties and assets of the Company as an entirety or substantially as an entirety shall be a Corporation organized and existing under the laws of the United States of America, any state thereof or the District of Columbia and shall expressly assume, by an indenture (or indentures, if at such time there is more than one Trustee) supplemental hereto, executed by the successor Person and the Guarantors and delivered to the Trustee the due and punctual payment of the principal of, any premium and interest on and any Additional Amounts with respect to all the Securities and the performance of every obligation in this Indenture and the Outstanding Securities on the part of the Company to be performed or observed and shall provide for conversion or exchange rights in accordance with the provisions of the Securities of any series that are convertible or exchangeable into other securities;

(2) immediately after giving effect to such transaction and treating any indebtedness which becomes an obligation of the Company, any Guarantor or a Subsidiary as a result of such transaction as having been incurred by the Company, such Guarantor or such Subsidiary at the time of such transaction, no Event of Default or event which, after notice or lapse of time, or both, would become an Event of Default, shall have occurred and be continuing; and

(3) each of the Company and the successor Person has delivered to the Trustee an Officers’ Certificate and an Opinion of Counsel, each stating that such consolidation, merger, conveyance, transfer or lease and the required supplemental indenture comply with this Article and that all conditions precedent herein provided for relating to such transaction have been complied with.

Section 8.2. Successor Person Substituted for Company.

Upon any consolidation by the Company with or merger of the Company into any other Person or any conveyance, transfer or lease of the properties and assets of the Company substantially as an entirety to any Person in accordance with Section 8.1, the successor Person formed by such consolidation or into which the Company is merged or to which such conveyance, transfer or lease is made shall succeed to, and be substituted for, 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; and thereafter, except in the case of a lease, the predecessor Person shall be released from all obligations and covenants under this Indenture, the Securities and the Coupons.

Section 8.3. Guarantor May Consolidate, Etc., Only on Certain Terms.

A Guarantor shall not consolidate with or merge into any other Person (whether or not affiliated with such Guarantor), or convey, transfer or lease its properties and assets as an entirety or substantially as an entirety to any other Person (whether or not affiliated with such Guarantor), and a Guarantor shall not permit any other Person (whether or not affiliated with such Guarantor) to consolidate with or merge into such Guarantor or convey, transfer or lease its properties and assets as an entirety or substantially as an entirety to such Guarantor; unless:

(1) in case the Guarantor shall consolidate with or merge into another Person or convey, transfer or lease its properties and assets as an entirety or substantially as an entirety to any Person, the Person formed by such consolidation or into which such Guarantor is merged or the Person which acquires by conveyance or transfer, or which leases, the properties and assets of the Guarantor as an entirety or substantially as an entirety shall be a Corporation organized and existing under the laws of the United States of America, any state thereof or the District of Columbia and shall expressly assume, by an indenture (or indentures, if at such time there is more than one Trustee) supplemental hereto, executed by the Company and the successor Person and delivered to the Trustee, in form satisfactory to the Trustee, all the obligations of such Guarantor under its Guarantee and the performance of every other covenant of this Indenture on the part of such Guarantor to be performed or observed;

(2) immediately after giving effect to such transaction, no Event of Default and no event which, after notice or lapse of time or both, would become an Event of Default, shall have occurred and be continuing; and

(3) each of the Guarantor and the successor Person has delivered to the Trustee a Guarantor’s Officers’ Certificate and an Opinion of Counsel, each stating that such consolidation, merger, conveyance, transfer or lease and the required supplemental indenture comply with this Article and that all conditions precedent herein provided for relating to such transaction have been complied with.

Section 8.4. Successor Person Substituted for Guarantor.

Upon any consolidation or merger or any conveyance, transfer or lease of the properties and assets of a Guarantor as an entirety or substantially as an entirety to any Person in accordance with Section 8.03, the successor Person formed by such consolidation or into which the Guarantor is merged or to which such conveyance, transfer or lease is made shall succeed to, and be substituted for, and may exercise every right and power of, such Guarantor under this Indenture with the same effect as if such successor Person had been named as a Guarantor herein, and thereafter, except in the case of a lease to another Person, the predecessor Person shall be released from all obligations and covenants under this Indenture.

ARTICLE IX

Supplemental Indentures

Section 9.1. Supplemental Indentures Without Consent of Holders.

Without the consent of any Holders of Securities or Coupons, the Company (when authorized by or pursuant to a Board Resolution), a Guarantor (when authorized by such Guarantor’s Board Resolution) and the Trustee, at any time and from time to time, may enter into one or more indentures supplemental hereto, for any of the following purposes:

(1) to evidence the succession of another Person to the Company or a Guarantor, and the assumption by any such successor of the covenants of the Company or such Guarantor, as the case may be, contained herein and in the Securities; or

(2) to add to the covenants of the Company or a Guarantor for the benefit of the Holders of all or any series of Securities (as shall be specified in such supplemental indenture or indentures) or to surrender any right or power herein conferred upon the Company or a Guarantor; or

(3) to add to or change any of the provisions of this Indenture to provide that Bearer Securities may be registrable as to principal, to change or eliminate any restrictions on the payment of principal of, any premium or interest on or any Additional Amounts with respect to Securities, to permit Bearer Securities to be issued in exchange for Registered Securities, to permit Bearer Securities to be exchanged for Bearer Securities of other authorized denominations or to permit or facilitate the issuance of Securities in uncertificated form, provided any such action shall not adversely affect the interests of the Holders of Outstanding Securities of any series or any Coupons appertaining thereto in any material respect; or

(4) to establish the form or terms of Securities of any series and any Coupons appertaining thereto as permitted by Sections 2.1 and 3.1; or

(5) to evidence and provide for the acceptance of appointment hereunder by a successor Trustee with respect to the Securities of one or more series and to add to or change any of the provisions of this Indenture as shall be necessary to provide for or facilitate the administration of the trusts hereunder by more than one Trustee, pursuant to the requirements of Section 6.10; or

(6) to cure any ambiguity or to correct or supplement any provision herein which may be defective or inconsistent with any other provision herein, or to make any other provisions with respect to matters or questions arising under this Indenture which shall not adversely affect the interests of the Holders of Securities of any series then Outstanding or any Coupons appertaining thereto in any material respect; or

(7) to add to, delete from or revise the conditions, limitations and restrictions on the authorized amount, terms or purposes of issue, authentication and delivery of Securities, as herein set forth; or

(8) to add any additional Events of Default with respect to all or any series of Securities (as shall be specified in such supplemental indenture); or

(9) to supplement any of the provisions of this Indenture to such extent as shall be necessary to permit or facilitate the defeasance and discharge of any series of Securities pursuant to Article IV, provided that any such action shall not adversely affect the interests of any Holder of an Outstanding Security of such series and any Coupons appertaining thereto or any other Outstanding Security or Coupon in any material respect; or

(10) to secure the Securities pursuant to Section 10.5 or otherwise; or

(11) to make provisions with respect to conversion or exchange rights of Holders of Securities of any series; or

(12) to amend or supplement any provision contained herein or in any supplemental indenture, provided that no such amendment or supplement shall adversely affect the interests of the Holders of any Securities then Outstanding.

Section 9.2. Supplemental Indentures with Consent of Holders.

With the consent of the Holders of not less than a majority in principal amount of the Outstanding Securities of each series affected by such supplemental indenture, by Act of said Holders delivered to the Company, the Guarantors and the Trustee, the Company (when authorized by or pursuant to a Company’s Board Resolution), each Guarantor (when authorized by or pursuant to a Guarantor’s Board Resolutions), and the Trustee may enter into an indenture

or indentures supplemental hereto for the purpose of adding any provisions to or changing in any manner or eliminating any of the provisions of this Indenture or of modifying in any manner the rights of the Holders of Securities of such series under this Indenture or of the Securities of such series; provided, however, that no such supplemental indenture, without the consent of the Holder of each Outstanding Security affected thereby, shall

(1) change the Stated Maturity of the principal of, or any premium or installment of interest on or any Additional Amounts or other amounts payable with respect to, any Security, or reduce the principal amount thereof or the rate (or modify the calculation of such rate) of interest thereon or any Additional Amounts or other amounts payable with respect thereto, or any premium payable upon the redemption thereof or otherwise, or change the obligation of the Company to pay Additional Amounts pursuant to Section 10.4 (except as contemplated by Section 8.1(1) and permitted by Section 9.1(1)), or reduce the amount of the principal of an Original Issue Discount Security that would be due and payable upon a declaration of acceleration of the Maturity thereof pursuant to Section 5.2 or the amount thereof provable in bankruptcy pursuant to Section 5.4, change the redemption provisions or adversely affect the right of repayment at the option of any Holder as contemplated by Article XIII, or change the Place of Payment, Currency in which the principal of, any premium or interest on, or any Additional Amounts or other amounts payable with respect to any Security is payable, or impair the right to institute suit for the enforcement of any such payment on or after the Stated Maturity thereof (or, in the case of redemption, on or after the Redemption Date or, in the case of repayment at the option of the Holder, on or after the date for repayment), or

(2) reduce the percentage in principal amount of the Outstanding Securities of any series, the consent of whose Holders is required for any such supplemental indenture, or the consent of whose Holders is required for any waiver (of compliance with certain provisions of this Indenture or certain defaults hereunder and their consequences) provided for in this Indenture, or reduce the requirements of Section 15.4 for quorum or voting, or

(3) modify or effect in any manner adverse to the Holders the terms and conditions of the obligations of the Guarantors in respect of the due and punctual payments of principal of, or any premium or interest on or any sinking fund requirements or Additional Amounts or other amounts payable with respect to, the Securities, or

(4) modify any of the provisions of this Section, Section 5.13 or Section 10.9, except to increase any such percentage or to provide that certain other provisions of this Indenture cannot be modified or waived without the consent of the Holder of each Outstanding Security affected thereby, or

(5) make any change that adversely affects the right to convert or exchange any Security into or for other securities in accordance with its terms.

A supplemental indenture which changes or eliminates any covenant or other provision of this Indenture which shall have been included expressly and solely for the benefit of one or more particular series of Securities, or which modifies the rights of the Holders of Securities of such series with respect to such covenant or other provision, shall be deemed not to affect the rights under this Indenture of the Holders of Securities of any other series.

The Company may, but shall not be obligated to, fix a record date for the purpose of determining the Persons entitled to consent to any indenture supplemental hereto. If a record date is fixed, the Holders on such record date, or their duly designated proxies, and only such Persons, shall be entitled to consent to such supplemental indenture, whether or not such Holders remain Holders after such record date; provided, that unless such consent shall have become effective by virtue of the requisite percentage having been obtained prior to the date which is 90 days after such record date, any such consent previously given shall automatically and without further action by any Holder be cancelled and of no further effect.

It shall not be necessary for any Act of Holders of Securities under this Section to approve the particular form of any proposed supplemental indenture, but it shall be sufficient if such Act shall approve the substance thereof.

Section 9.3. Execution of Supplemental Indentures.

As a condition to executing, or accepting the additional trusts created by, any supplemental indenture permitted by this Article or the modifications thereby of the trust created by this Indenture, the Trustee shall be entitled to receive, and (subject to Section 315 of the Trust Indenture Act) shall be fully protected in relying upon, an Opinion of Counsel stating that the execution of such supplemental indenture is authorized or permitted by this Indenture and an Officers’ Certificate and Guarantor’s Officer Certificates stating that all conditions precedent to the execution of such supplemental indenture have been fulfilled. The Trustee may, but shall not be obligated to, enter into any such supplemental indenture which affects the Trustee’s own rights, duties or immunities under this Indenture or otherwise.

Section 9.4. Effect of Supplemental Indentures.

Upon the execution of any supplemental indenture under this Article, this Indenture shall be modified in accordance therewith, and such supplemental indenture shall form a part of this Indenture for all purposes; and every Holder of a Security theretofore or thereafter authenticated and delivered hereunder and of any Coupon appertaining thereto shall be bound thereby.

Section 9.5. Reference in Securities to Supplemental Indentures.

Securities of any series authenticated and delivered after the execution of any supplemental indenture pursuant to this Article may, and shall if required by the Trustee, bear a notation in form approved by the Trustee as to any matter provided for in such supplemental indenture. If the Company shall so determine, new Securities of any series so modified as to conform, in the opinion of the Trustee and the Company, to any such supplemental indenture may be prepared and executed by the Company and authenticated and delivered by the Trustee in exchange for Outstanding Securities of such series.

Section 9.6. Notice of Supplemental Indenture.

Promptly after the execution by the Company, the Guarantors and the Trustee of any supplemental indenture pursuant to Section 9.2, the Company shall transmit to the Holders of Outstanding Securities of any series affected thereby a notice setting forth the substance of such supplemental indenture.

ARTICLE X

Covenants

Section 10.1. Payment of Principal, any Premium, Interest and Additional Amounts.

The Company covenants and agrees for the benefit of the Holders of the Securities of each series that it will duly and punctually pay the principal of, any premium and interest on and any Additional Amounts and other amounts payable with respect to the Securities of such series in accordance with the terms thereof, any Coupons appertaining thereto and this Indenture. An installment of principal, premium, if any, or interest shall be considered paid on the date due if the Trustee or Paying Agent (other than the Company and the Guarantors) holds on that date money designated for and sufficient to pay such installment. Any interest due on any Bearer Security on or before the Maturity thereof, and any Additional Amounts payable with respect to such interest, shall be payable only upon presentation and surrender of the Coupons appertaining thereto for such interest as they severally mature.

Section 10.2. Maintenance of Office or Agency.

The Company or a Guarantor shall maintain in each Place of Payment for any series of Securities an Office or Agency where Securities of such series (but not Bearer Securities, except as otherwise provided below, unless such Place of Payment is located outside the United States) may be presented or surrendered for payment, where Securities of such series may be surrendered for registration of transfer or exchange, where Securities of such series that are convertible or exchangeable may be surrendered for conversion or exchange, and where notices and demands to or upon the Company or a Guarantor in respect of the Securities of such series relating thereto and this Indenture may be served. If Securities of a series are issuable as Bearer Securities, the Company or a Guarantor shall maintain, subject to any laws or regulations applicable thereto, an Office or Agency in a Place of Payment for such series which is located outside the United States where Securities of such series and any Coupons appertaining thereto may be presented and surrendered for payment; provided, however, that if the Securities of such series are listed on The Stock Exchange of the United Kingdom and the Republic of Ireland or the Luxembourg Stock Exchange or any other stock exchange located outside the United States and such stock exchange shall so require, the Company or a Guarantor shall maintain a Paying Agent in London, Luxembourg or any other required city located outside the United States, as

the case may be, so long as the Securities of such series are listed on such exchange. The Company or a Guarantor 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 or the Guarantors shall fail to maintain any such required Office or Agency or shall fail to furnish the Trustee with the address thereof, such presentations, surrenders, notices and demands may be made or served at the Corporate Trust Office of the Trustee, except that Bearer Securities of such series and any Coupons appertaining thereto may be presented and surrendered for payment at the place specified for the purpose with respect to such Securities as provided in or pursuant to this Indenture, and the Company and the Guarantors each hereby appoints the Trustee as its agent to receive all such presentations, surrenders, notices and demands.

Except as otherwise provided in or pursuant to this Indenture, no payment of principal, premium, interest or Additional Amounts with respect to Bearer Securities shall be made at any Office or Agency in the United States or by check mailed to any address in the United States or by transfer to an account maintained with a bank located in the United States; provided, however, if amounts owing with respect to any Bearer Securities shall be payable in Dollars, payment of principal of, any premium or interest on and any Additional Amounts with respect to any such Security may be made at the Corporate Trust Office of the Trustee or any Office or Agency designated by the Company in the Borough of Manhattan, The City of New York, if (but only if) payment of the full amount of such principal, premium, interest or Additional Amounts at all offices outside the United States maintained for such purpose by the Company in accordance with this Indenture is illegal or effectively precluded by exchange controls or other similar restrictions.

The Company or a Guarantor may also from time to time designate one or more other Offices or Agencies where the Securities of one or more series may be presented or surrendered for any or all such purposes and may from time to time rescind such designations; provided, however, that no such designation or rescission shall in any manner relieve the Company or the Guarantors of its obligation to maintain an Office or Agency in each Place of Payment for Securities of any series for such purposes. The Company or a Guarantor shall give prompt written notice to the Trustee of any such designation or rescission and of any change in the location of any such other Office or Agency. Unless otherwise provided in or pursuant to this Indenture, the Company and the Guarantors each hereby designates as the Place of Payment for each series of Securities the Borough of Manhattan, The City of New York, and initially appoints the Corporate Trust Office of the Trustee as the Office or Agency of the Company and the Guarantors, as the case may be, in the Borough of Manhattan, The City of New York for such purpose. The Company or a Guarantor, as the case may be, may subsequently appoint a different Office or Agency in the Borough of Manhattan, The City of New York for the Securities of any series.

Unless otherwise specified with respect to any Securities pursuant to Section 3.1, if and so long as the Securities of any series (i) are denominated in a Foreign Currency or (ii) may be payable in a Foreign Currency, or so long as it is required under any other provision of this Indenture, then the Company will maintain with respect to each such series of Securities, or as so required, at least one exchange rate agent.

Section 10.3. Money for Securities Payments to Be Held in Trust.

If the Company shall at any time act as its own Paying Agent with respect to any series of Securities, it shall, on or before each due date of the principal of, any premium or interest on or Additional Amounts or other amounts payable with respect to any of the Securities of such series, segregate and hold in trust for the benefit of the Persons entitled thereto a sum in the currency or currencies, currency unit or units or composite currency or currencies in which the Securities of such series are payable (except as otherwise specified pursuant to Section 3.1 for the Securities of such series) sufficient to pay the principal or any premium, interest or Additional Amounts or other amounts so becoming due until such sums shall be paid to such Persons or otherwise disposed of as herein provided, and shall promptly notify the Trustee of its action or failure so to act.

Whenever the Company shall have one or more Paying Agents for any series of Securities, it shall, on or prior to each due date of the principal of, any premium or interest on or any Additional Amounts or other amounts payable with respect to any Securities of such series, deposit with any Paying Agent a sum (in the currency or currencies, currency unit or units or composite currency or currencies described in the preceding paragraph) sufficient to pay the principal or any premium, interest or Additional Amounts or other amounts so becoming due, such sum to be held in trust for the benefit of the Persons entitled thereto, and (unless such Paying Agent is the Trustee) the Company will promptly notify the Trustee of its action or failure so to act.

The Company shall cause each Paying Agent for any series of Securities other than the Trustee to execute and deliver to the Trustee an instrument in which such Paying Agent shall agree with the Trustee, subject to the provisions of this Section, that such Paying Agent shall:

(1) hold all sums held by it for the payment of the principal of, any premium or interest on or any Additional Amounts or other amounts payable with respect to Securities of such series in trust for the benefit of the Persons entitled thereto until such sums shall be paid to such Persons or otherwise disposed of as provided in or pursuant to this Indenture;

(2) give the Trustee notice of any default by the Company (or any other obligor upon the Securities of such series) in the making of any payment of principal, any premium or interest on or any Additional Amounts or other amounts payable with respect to the Securities of such series; and

(3) at any time during the continuance of any such default, upon the written request of the Trustee, forthwith pay to the Trustee all sums so held in trust by such Paying Agent.

The Company or the Guarantor may at any time, for the purpose of obtaining the satisfaction and discharge of this Indenture or for any other purpose, pay, or by Company Order or the Guarantor Order direct any Paying Agent to pay, to the Trustee all sums held in trust by the Company or such Paying Agent, such sums to be held by the Trustee upon the same terms as those upon which such sums were held by the Company or such Paying Agent; and, upon such payment by any Paying Agent to the Trustee, such Paying Agent shall be released from all further liability with respect to such sums.

Except as otherwise provided herein or pursuant hereto, 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, any premium or interest on or any Additional Amounts or other amounts payable with respect to any Security of any series or any Coupon appertaining thereto and remaining unclaimed for two years after such principal or any such premium or interest or any such Additional Amounts shall have become due and payable shall be paid to the Company on Company Request (or if deposited by a Guarantor, paid to such Guarantor on Guarantor Request), or (if then held by the Company or a Guarantor) shall be discharged from such trust; and the Holder of such Security or any Coupon appertaining thereto shall thereafter, as an unsecured general creditor, look only to the Company and the Guarantors 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, shall 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 an Authorized Newspaper in each Place of Payment for such series or to be mailed to Holders of Registered Securities of such series, or both, notice that such money remains unclaimed and that, after a date specified therein, which shall not be less than 30 days from the date of such publication or mailing nor shall it be later than two years after such principal and any premium or interest or Additional Amounts shall have become due and payable, any unclaimed balance of such money then remaining will be repaid to the Company or the Guarantor, as the case may be.

Section 10.4. Additional Amounts.

If any Securities of a series provide for the payment of Additional Amounts, the Company and the Guarantor agrees to pay to the Holder of any such Security or any Coupon appertaining thereto Additional Amounts as provided in or pursuant to this Indenture or such Securities. Whenever in this Indenture there is mentioned, in any context, the payment of the principal of or any premium or interest on, or in respect of, any Security of any series or any Coupon or the net proceeds received on the sale or exchange of any Security of any series, such mention shall be deemed to include mention of the payment of Additional Amounts provided by the terms of such series established hereby or pursuant hereto to the extent that, in such context, Additional Amounts are, were or would be payable in respect thereof pursuant to such terms, and express mention of the payment of Additional Amounts (if applicable) in any provision hereof shall not be construed as excluding the payment of Additional Amounts in those provisions hereof where such express mention is not made.

Except as otherwise provided in or pursuant to this Indenture or the Securities of the applicable series, if the Securities of a series provide for the payment of Additional Amounts, at least 10 days prior to the first Interest Payment Date with respect to such series of Securities (or if the Securities of such series shall not bear interest prior to Maturity, the first day on which a payment of principal is made), and at least 10 days prior to each date of payment of principal or interest if there has been any change with respect to the matters set forth in the below-mentioned Officers’ Certificate, the Company or the Guarantor, as the case may be, shall furnish to the Trustee and the principal Paying Agent or Paying Agents, if other than the Trustee, an Officers’ Certificate instructing the Trustee and such Paying Agent or Paying Agents whether such payment of principal of and premium, if any, or interest on the Securities of such series shall be made to Holders of Securities of such series or the Coupons appertaining thereto who are United States Aliens without withholding for or on account of any tax, assessment or other governmental charge described in the Securities of such series. If any such withholding shall be required, then such Officers’ Certificate shall specify by country the amount, if any, required to be withheld on such payments to such Holders of Securities or Coupons, and the Company and the Guarantor agree to pay to the Trustee or such Paying Agent the Additional Amounts required by the terms of such Securities. The Company and the Guarantor covenants to indemnify the Trustee and any Paying Agent for, and to hold them harmless against, any loss, liability or expense reasonably incurred without negligence or bad faith on their part arising out of or in connection with actions taken or omitted by any of them in reliance on any Officers’ Certificate furnished pursuant to this Section.

Section 10.5. Limitation on Liens.

The Company will not, and will not permit any Restricted Subsidiary to, create, incur or assume any Lien (other than Permitted Liens) on Restricted Property to secure the payment of Indebtedness of the Company or any Restricted Subsidiary if, immediately after the creation, incurrence or assumption of such Lien, the aggregate outstanding principal amount of all Indebtedness of the Company and the Restricted Subsidiaries that is secured by Liens (other than Permitted Liens) on Restricted Property would exceed the greater of (i) $30 million or (ii) 15% of the aggregate outstanding principal amount of all Indebtedness of the Company and the Restricted Subsidiaries (whether or not so secured), unless effective provision is made whereby the Securities (together with, if the Company shall so determine, any other Indebtedness ranking equally with the Securities, whether then existing or thereafter created) are secured equally and ratably with (or prior to) such Indebtedness (but only for so long as such Indebtedness is so secured). The foregoing limitation does not apply to (i) Liens existing on the Closing Date; (ii) Liens granted after the Closing Date on any assets or Capital Stock of the Company or its Restricted Subsidiaries created in favor of the Holders; (iii) Liens with respect to the assets of a Restricted Subsidiary granted by such Restricted Subsidiary to the Company or another Restricted Subsidiary to secure Indebtedness owing to the Company or such other Restricted Subsidiary; (iv) Liens securing Indebtedness which is incurred to refinance secured Indebtedness which is permitted to be incurred under Section 10.6; provided that such Liens do not extend to or cover any property or assets of the Company or any Restricted Subsidiary other than the property or assets securing the Indebtedness being refinanced; (v) Liens securing Indebtedness permitted under Section 10.6; or (vii) Permitted Liens.

Section 10.6. Limitation on Indebtedness of Restricted Subsidiaries.

The Company will not permit any Restricted Subsidiary to incur any Indebtedness if, immediately after the incurrence or assumption of such Indebtedness, the aggregate outstanding principal amount of all Indebtedness of the Restricted Subsidiaries would exceed the greater of (i) $30 million or (ii) 15% of the aggregate outstanding principal amount of all Indebtedness of the Company and the Restricted Subsidiaries; provided that, in any event, a Restricted Subsidiary may incur Indebtedness to extend, renew or replace Indebtedness of such Restricted Subsidiary to the extent that the principal amount of the Indebtedness so incurred does not exceed the principal amount of the Indebtedness extended, renewed or replaced thereby immediately prior to such extension, renewal or replacement plus any premium, accrued and unpaid interest or capitalized interest payable thereon.

Section 10.7. Designation of Subsidiaries.

The Company may designate a Restricted Subsidiary as an Unrestricted Subsidiary or designate an Unrestricted Subsidiary as a Restricted Subsidiary at any time, provided that (i) immediately after giving effect to such designation, the Leverage Ratio of the Restricted Group is not greater than 7:1 and the Company and the Restricted Subsidiaries are in compliance with Sections 10.5 and 10.6, and (ii) an Officers’ Certificate with respect to such designation is delivered to the Trustee within 75 days after the end of the fiscal quarter of the Company in which such designation is made (or, in the case of a designation made during the last fiscal quarter of the Company’s fiscal year, within 120 days after the end of such fiscal year), which Officers’ Certificate shall state the effective date of such designation.

Section 10.8. Corporate Existence.

Subject to Article VIII, the Company and the Guarantor shall do or cause to be done all things necessary to preserve and keep in full force and effect their respective corporate existences and that of each Restricted Subsidiary and their respective rights (charter and statutory) and franchises; provided, however, that the foregoing shall not obligate the Company, any Guarantor or any Restricted Subsidiary to preserve any such right or franchise if the Company or such Guarantor, as the case may be, or any Restricted Subsidiary shall determine that the preservation thereof is no longer desirable in the conduct of its business or the business of such Subsidiary and that the loss thereof is not disadvantageous in any material respect to any Holder.

Section 10.9. Waiver of Certain Covenants.

The Company or the Guarantors, as the case may be, may omit in any particular instance to comply with any term, provision or condition set forth in Sections 10.5 or 10.6 with respect to the Securities of any series if before the time for such compliance the Holders of at least a

majority in principal amount of the Outstanding Securities of such series, by Act of such Holders, either shall waive such compliance in such instance or generally shall have waived compliance with such term, provision or condition, but no such waiver shall extend to or affect such term, provision or condition except to the extent so expressly waived, and, until such waiver shall become effective, the obligations of the Company and the Guarantors and the duties of the Trustee in respect of any such term, provision or condition shall remain in full force and effect.

Section 10.10. Company Statement as to Compliance; Notice of Certain Defaults.

(1) The Company shall deliver to the Trustee, within 120 days after the end of each fiscal year, a written statement (which need not be contained in or accompanied by an Officers’ Certificate) signed by the principal executive officer, the principal financial officer or the principal accounting officer of the Company, stating that:

(a) a review of the activities of the Company during such year and of its performance under this Indenture has been made under his or her supervision, and

(b) to the best of his or her knowledge, based on such review, (i) the Company has complied with all the conditions and covenants imposed on it under this Indenture throughout such year, or, if there has been a default in the fulfillment of any such condition or covenant, specifying each such default known to him or her and the nature and status thereof, and (ii) no event has occurred and is continuing which is, or after notice or lapse of time or both would become, an Event of Default, or, if such an event has occurred and is continuing, specifying each such event known to him and the nature and status thereof.

(2) The Company shall deliver to the Trustee, within five days after the occurrence thereof, written notice of any Event of Default or any event which after notice or lapse of time or both would become an Event of Default pursuant to clause (4) of Section 5.1.

(3) The Trustee shall have no duty to monitor the Company’s compliance with the covenants contained in this Article X other than as specifically set forth in this Section 10.8.

Section 10.11. Guarantor’s Statement as to Compliance; Notice of Certain Defaults.

(1) Each Guarantor shall deliver to the Trustee, within 120 days after the end of each fiscal year, a written statement (which need not be contained in or accompanied by a Guarantor’s Officers’ Certificate) signed by the principal executive officer, the principal financial officer or the principal accounting officer of such Guarantor, stating that

(a) a review of the activities of such Guarantor during such year and of performance under this Indenture has been made under his or her supervision, and

(b) to the best of his or her knowledge, based on such review, (i) such Guarantor has complied with conditions and covenants imposed on it under this Indenture throughout such year, or, if there has been a default in the fulfillment of any such condition or covenant, specifying each such default known to him or her and the nature and status thereof, and (ii) no event has occurred and is continuing which constitutes, or which after notice or lapse of time or both would become, and Event of Default, or, if such an event has occurred and is continuing, specifying each such event known to him and the nature and status thereof.

(2) Each Guarantor shall deliver to the Trustee, within five days after the occurrence thereof, written notice of any event which after notice or lapse of time or both would become an Event of Default pursuant to clause (4) of Section 5.1.

Section 10.12. Subsequent Guarantor.

The Company shall cause each Subsidiary that guarantees amounts payable under a Credit Agreement to, for so long as such Subsidiary is obligated to guarantee the Company’s indebtedness pursuant to such Credit Agreement, fully and unconditionally guarantee the due and punctual payment of the principal of, interest on and any other amounts payable under the Securities, when and if the same shall become due and payable, whether at the Stated Maturity, by declaration of acceleration, upon redemption, repurchase or repayment or otherwise, by execution of an indenture supplemental hereto that adds such Subsidiary as a Subsequent Guarantor.

Section 10.13. Calculation of Original Issue Discount.

The Company shall file with the Trustee promptly at the end of each calendar year (i) a written notice specifying the amount, if any, of original issue discount (including daily rates and accrual periods) accrued on Outstanding Securities as of the end of such year and (ii) such other specific information relating to such original issue discount as may then be relevant under the Internal Revenue Code of 1986, as amended from time to time.

ARTICLE XI

Redemption of Securities

Section 11.1. Applicability of Article.

Redemption of Securities of any series at the option of the Company as permitted or required by the terms of such Securities shall be made in accordance with the terms of such Securities and (except as otherwise provided herein or pursuant hereto) this Article.

Section 11.2. Election to Redeem; Notice to Trustee.

The election of the Company to redeem any Securities shall be evidenced by or pursuant to a Board Resolution. In case of any redemption at the election of the Company of (1) less than all of the Securities of any series or (2) all of the Securities of any series, with the same issue date, interest rate or formula, Stated Maturity and other terms, the Company shall, at least 60 days prior to the Redemption Date fixed by the Company (unless a shorter notice shall be satisfactory to the Trustee), notify the Trustee of such Redemption Date and of the principal amount of Securities of such series to be redeemed.

Section 11.3. Selection by Trustee of Securities to be Redeemed.

If less than all of the Securities of any series with the same issue date, interest rate or formula, Stated Maturity and other terms are to be redeemed, the particular Securities to be redeemed shall be selected not more than 60 days prior to the Redemption Date by the Trustee from the Outstanding Securities of such series not previously called for redemption, by such method as the Trustee shall deem fair and appropriate and which may provide for the selection for redemption of portions of the principal amount of Registered Securities of such series; provided, however, that no such partial redemption shall reduce the portion of the principal amount of a Registered Security of such series not redeemed to less than the minimum denomination for a Security of such series established herein or pursuant hereto.

The Trustee shall promptly notify the Company and the Security Registrar (if other than itself) in writing of the Securities selected for redemption and, in the case of any Securities selected for partial redemption, the principal amount thereof to be redeemed.

For all purposes of this Indenture, unless the context otherwise requires, all provisions relating to the redemption of Securities shall relate, in the case of any Securities redeemed or to be redeemed only in part, to the portion of the principal of such Securities which has been or is to be redeemed.

Unless otherwise specified in or pursuant to this Indenture or the Securities of any series, if any Security selected for partial redemption is converted into Common Stock or exchanged for other securities in part before termination of the conversion or exchange right with respect to the portion of the Security so selected, the converted portion of such Security shall be deemed (so far

as may be) to be the portion selected for redemption. Securities which have been converted or exchanged during a selection of Securities to be redeemed shall be treated by the Trustee as Outstanding for the purpose of such selection.

Section 11.4. Notice of Redemption.

Notice of redemption shall be given in the manner provided in Section 1.6, not less than 30 nor more than 60 days prior to the Redemption Date, unless a shorter period is specified in the Securities to be redeemed, to the Holders of Securities to be redeemed. Failure to give notice by mailing in the manner herein provided to the Holder of any Registered Securities designated for redemption as a whole or in part, or any defect in the notice to any such Holder, shall not affect the validity of the proceedings for the redemption of any other Securities or portion thereof.

Any notice that is mailed to the Holder of any Registered Securities in the manner herein provided shall be conclusively presumed to have been duly given, whether or not such Holder receives the notice.

All notices of redemption shall state:

(1) the Redemption Date,

(2) the Redemption Price,

(3) if less than all Outstanding Securities of any series are to be redeemed, the identification (and, in the case of partial redemption, the principal amount) of the particular Security or Securities to be redeemed,

(4) in case any Security is to be redeemed in part only, the notice which relates to such Security shall state that on and after the Redemption Date, upon surrender of such Security, the Holder of such Security will receive, without charge, a new Security or Securities of authorized denominations for the principal amount thereof remaining unredeemed,

(5) that, on the Redemption Date, the Redemption Price shall become due and payable upon each such Security or portion thereof to be redeemed, and, if applicable, that interest thereon shall cease to accrue on and after said date,

(6) the place or places where such Securities, together (in the case of Bearer Securities) with all Coupons appertaining thereto, if any, maturing after the Redemption Date, are to be surrendered for payment of the Redemption Price and any accrued interest and Additional Amounts pertaining thereto,

(7) that the redemption is for a sinking fund, if such is the case,

(8) that, unless otherwise specified in such notice, Bearer Securities of any series, if any, surrendered for redemption must be accompanied by all Coupons maturing subsequent to the date fixed for redemption or the amount of any such missing Coupon or Coupons will be deducted from the Redemption Price, unless security or indemnity satisfactory to the Company, the Trustee and any Paying Agent is furnished,

(9) if Bearer Securities of any series are to be redeemed and no Registered Securities of such series are to be redeemed, and if such Bearer Securities may be exchanged for Registered Securities not subject to redemption on the Redemption Date pursuant to Section 3.5 or otherwise, the last date, as determined by the Company, on which such exchanges may be made,

(10) in the case of Securities of any series that are convertible into Common Stock or exchangeable for other securities, the conversion or exchange price or rate, the date or dates on which the right to convert or exchange the principal of the Securities of such series to be redeemed will commence or terminate and the place or places where such Securities may be surrendered for conversion or exchange, and

(11) the CUSIP number or the Euroclear or the Cedel reference numbers of such Securities, if any (or any other numbers used by a Depository to identify such Securities).

A notice of redemption published as contemplated by Section 1.6 need not identify particular Registered Securities to be redeemed.

Notice of redemption of Securities to be redeemed at the election of the Company shall be given by the Company or, at the Company’s request, by the Trustee in the name and at the expense of the Company.

Section 11.5. Deposit of Redemption Price.

On or prior to any Redemption Date, the Company shall deposit, with respect to the Securities of any series called for redemption pursuant to Section 11.4, with the Trustee or with a Paying Agent (or, if the Company is acting as its own Paying Agent, segregate and hold in trust as provided in Section 10.3) an amount of money in the applicable Currency sufficient to pay the Redemption Price of, and (except if the Redemption Date shall be an Interest Payment Date, unless otherwise specified pursuant to Section 3.1 or in the Securities of such series) any accrued interest on and Additional Amounts with respect thereto, all such Securities or portions thereof which are to be redeemed on that date.

Section 11.6. Securities Payable on Redemption Date.

Notice of redemption having been given as aforesaid, the Securities so to be redeemed shall, on the Redemption Date, become due and payable at the Redemption Price therein specified, and from and after such date (unless the Company shall default in the payment of the

Redemption Price and accrued interest) such Securities shall cease to bear interest and the Coupons for such interest appertaining to any Bearer Securities so to be redeemed, except to the extent provided below, shall be void. Upon surrender of any such Security for redemption in accordance with said notice, together with all Coupons, if any, appertaining thereto maturing after the Redemption Date, such Security shall be paid by the Company at the Redemption Price, together with any accrued interest and Additional Amounts to the Redemption Date; provided, however, that, except as otherwise provided in or pursuant to this Indenture or the Bearer Securities of such series, installments of interest on Bearer Securities whose Stated Maturity is on or prior to the Redemption Date shall be payable only upon presentation and surrender of Coupons for such interest (at an Office or Agency located outside the United States except as otherwise provided in Section 10.2), and provided, further, that, except as otherwise specified in or pursuant to this Indenture or the Registered Securities of such series, installments of interest on Registered Securities whose Stated Maturity is on or prior to the Redemption Date shall be payable to the Holders of such Securities, or one or more Predecessor Securities, registered as such at the close of business on the Regular Record Dates therefor according to their terms and the provisions of Section 3.7.

If any Bearer Security surrendered for redemption shall not be accompanied by all appurtenant Coupons maturing after the Redemption Date, such Security may be paid after deducting from the Redemption Price an amount equal to the face amount of all such missing Coupons, or the surrender of such missing Coupon or Coupons may be waived by the Company and the Trustee if there be furnished to them such security or indemnity as they may require to save each of them and any Paying Agent harmless. If thereafter the Holder of such Security shall surrender to the Trustee or any Paying Agent any such missing Coupon in respect of which a deduction shall have been made from the Redemption Price, such Holder shall be entitled to receive the amount so deducted; provided, however, that any interest or Additional Amounts represented by Coupons shall be payable only upon presentation and surrender of those Coupons at an Office or Agency for such Security located outside of the United States except as otherwise provided in Section 10.2.

If any Security called for redemption shall not be so paid upon surrender thereof for redemption, the principal and any premium, until paid, shall bear interest from the Redemption Date at the rate prescribed therefor in the Security.

Section 11.7. Securities Redeemed in Part.

Any Registered Security which is to be redeemed only in part shall be surrendered at any Office or Agency for such Security (with, if the Company or the Trustee so requires, due endorsement by, or a written instrument of transfer in form satisfactory to the Company and the Trustee duly executed by, the Holder thereof or his attorney duly authorized in writing) and the Company shall execute and the Trustee shall authenticate and deliver to the Holder of such Security without service charge, a new Registered Security or Securities of the same series, containing identical terms and provisions, of any authorized denomination as requested by such Holder in aggregate principal amount equal to and in exchange for the unredeemed portion of the

principal of the Security so surrendered. If a Security in global form is so surrendered, the Company shall execute, and the Trustee shall authenticate and deliver to the U.S. Depository or other Depository for such Security in global form as shall be specified in the Company Order with respect thereto to the Trustee, without service charge, a new Security in global form in a denomination equal to and in exchange for the unredeemed portion of the principal of the Security in global form so surrendered.

ARTICLE XII

Sinking Funds

Section 12.1. Applicability of Article.

The provisions of this Article shall be applicable to any sinking fund for the retirement of Securities of a series, except as otherwise permitted or required in or pursuant to this Indenture or any Security of such series issued pursuant to this Indenture.

The minimum amount of any sinking fund payment provided for by the terms of Securities of any series is herein referred to as a “mandatory sinking fund payment”, and any payment in excess of such minimum amount provided for by the terms of Securities of such series is herein referred to as an “optional sinking fund payment”. If provided for by the terms of Securities of any series, the cash amount of any sinking fund payment may be subject to reduction as provided in Section 12.2. Each sinking fund payment shall be applied to the redemption of Securities of any series as provided for by the terms of Securities of such series and this Indenture.

Section 12.2. Satisfaction of Sinking Fund Payments with Securities.

The Company may, in satisfaction of all or any part of any sinking fund payment with respect to the Securities of any series to be made pursuant to the terms of such Securities (1) deliver Outstanding Securities of such series (other than any of such Securities previously called for redemption or any of such Securities in respect of which cash shall have been released to the Company), together in the case of any Bearer Securities of such series with all unmatured Coupons appertaining thereto, and (2) apply as a credit Securities of such series which have been redeemed either at the election of the Company pursuant to the terms of such series of Securities or through the application of permitted optional sinking fund payments pursuant to the terms of such Securities, provided that such series of Securities have not been previously so credited. Such Securities shall be received and credited for such purpose by the Trustee at the Redemption Price specified in such Securities for redemption through operation of the sinking fund and the amount of such sinking fund payment shall be reduced accordingly. If, as a result of the delivery or credit of Securities of any series in lieu of cash payments pursuant to this Section 12.2, the principal amount of Securities of such series to be redeemed in order to satisfy the remaining sinking fund payment shall be less than $100,000, the Trustee need not call Securities of such series for redemption, except upon Company Request, and such cash payment shall be held by the Trustee or a Paying Agent and applied to the next succeeding sinking fund payment,

provided, however, that the Trustee or such Paying Agent shall at the request of the Company from time to time pay over and deliver to the Company any cash payment so being held by the Trustee or such Paying Agent upon delivery by the Company to the Trustee of Securities of that series purchased by the Company having an unpaid principal amount equal to the cash payment requested to be released to the Company.

Section 12.3. Redemption of Securities for Sinking Fund.

Not less than 75 days prior to each sinking fund payment date for any series of Securities, the Company shall deliver to the Trustee an Officers’ Certificate specifying the amount of the next ensuing mandatory sinking fund payment for that series pursuant to the terms of that series, the portion thereof, if any, which is to be satisfied by payment of cash and the portion thereof, if any, which is to be satisfied by delivering and crediting of Securities of that series pursuant to Section 12.2, and the optional amount, if any, to be added in cash to the next ensuing mandatory sinking fund payment, and will also deliver to the Trustee any Securities to be so credited and not theretofore delivered. If such Officers’ Certificate shall specify an optional amount to be added in cash to the next ensuing mandatory sinking fund payment, the Company shall thereupon be obligated to pay the amount therein specified. Not less than 60 days before each such sinking fund payment date the Trustee shall select the Securities to be redeemed upon such sinking fund payment date in the manner specified in Section 11.3 and cause notice of the redemption thereof to be given in the name of and at the expense of the Company in the manner provided in Section 11.4. Such notice having been duly given, the redemption of such Securities shall be made upon the terms and in the manner stated in Sections 11.6 and 11.7.

ARTICLE XIII

Repayment at the Option of Holders

Section 13.1. Applicability of Article.

Securities of any series which are repayable at the option of the Holders thereof before their Stated Maturity shall be repaid in accordance with the terms of the Securities of such series. The repayment of any principal amount of Securities pursuant to such option of the Holder to require repayment of Securities before their Stated Maturity, for purposes of Section 3.9, shall not operate as a payment, redemption or satisfaction of the Indebtedness represented by such Securities unless and until the Company, at its option, shall deliver or surrender the same to the Trustee with a directive that such Securities be cancelled. Notwithstanding anything to the contrary contained in this Section 13.1, in connection with any repayment of Securities, the Company may arrange for the purchase of any Securities by an agreement with one or more investment bankers or other purchasers to purchase such Securities by paying to the Holders of such Securities on or before the close of business on the repayment date an amount not less than the repayment price payable by the Company on repayment of such Securities, and the obligation of the Company to pay the repayment price of such Securities shall be satisfied and discharged to the extent such payment is so paid by such purchasers.

ARTICLE XIV

Securities in Foreign Currencies

Section 14.1. Applicability of Article.

Whenever this Indenture provides for (i) any action by, or the determination of any of the rights of, Holders of Securities of any series in which not all of such Securities are denominated in the same Currency, or (ii) any distribution to Holders of Securities, in the absence of any provision to the contrary in the form of Security of any particular series or pursuant to this Indenture or the Securities, any amount in respect of any Security denominated in a Currency other than Dollars shall be treated for any such action or distribution as that amount of Dollars that could be obtained for such amount on such reasonable basis of exchange and as of the record date with respect to Registered Securities of such series (if any) for such action, determination of rights or distribution (or, if there shall be no applicable record date, such other date reasonably proximate to the date of such action, determination of rights or distribution) as the Company or a Guarantor may specify in a written notice to the Trustee.

ARTICLE XV

Meetings of Holders of Securities

Section 15.1. Purposes for Which Meetings May Be Called.

A meeting of Holders of Securities of any series may be called at any time and from time to time pursuant to this Article to make, give or take any request, demand, authorization, direction, notice, consent, waiver or other Act provided by this Indenture to be made, given or taken by Holders of Securities of such series.

Section 15.2. Call, Notice and Place of Meetings.

(1) The Trustee may at any time call a meeting of Holders of Securities of any series for any purpose specified in Section 15.1, to be held at such time and at such place in the Borough of Manhattan, The City of New York, or, if Securities of such series have been issued in whole or in part as Bearer Securities, in London or in such place outside the United States as the Trustee shall determine. Notice of every meeting of Holders of Securities of any series, setting forth the time and the place of such meeting and in general terms the action proposed to be taken at such meeting, shall be given, in the manner provided in Section 1.6, not less than 21 nor more than 180 days prior to the date fixed for the meeting.

(2) In case at any time the Company (by or pursuant to a Board Resolution), a Guarantor (by or pursuant to a Guarantor’s Board Resolution) or the Holders of at least 10% in principal amount of the Outstanding Securities of any series shall have requested the Trustee to call a meeting of the Holders of Securities of such series for any purpose

specified in Section 15.1, by written request setting forth in reasonable detail the action proposed to be taken at the meeting, and the Trustee shall not have mailed notice of or made the first publication of the notice of such meeting within 21 days after receipt of such request (whichever shall be required pursuant to Section 1.6) or shall not thereafter proceed to cause the meeting to be held as provided herein, then the Company, a Guarantor or the Holders of Securities of such series in the amount above specified, as the case may be, may determine the time and the place in the Borough of Manhattan, The City of New York, or, if Securities of such series are to be issued as Bearer Securities, in London for such meeting and may call such meeting for such purposes by giving notice thereof as provided in clause (1) of this Section.

Section 15.3. Persons Entitled to Vote at Meetings.

To be entitled to vote at any meeting of Holders of Securities of any series, a Person shall be (1) a Holder of one or more Outstanding Securities of such series, or (2) a Person appointed by an instrument in writing as proxy for a Holder or Holders of one or more Outstanding Securities of such series by such Holder or Holders. The only Persons who shall be entitled to be present or to speak at any meeting of Holders of Securities of any series shall be the Persons entitled to vote at such meeting and their counsel, any representatives of the Trustee and its counsel, any representatives of a Guarantor and its counsel and any representatives of the Company and its counsel.

Section 15.4. Quorum; Action.

The Persons entitled to vote a majority in principal amount of the Outstanding Securities of a series shall constitute a quorum for any meeting of Holders of Securities of such series. In the absence of a quorum within 30 minutes after the time appointed for any such meeting, the meeting shall, if convened at the request of Holders of Securities of such series, be dissolved. In any other case the meeting may be adjourned for a period of not less than 10 days as determined by the chairman of the meeting prior to the adjournment of such meeting. In the absence of a quorum at any reconvened meeting, such reconvened meeting may be further adjourned for a period of not less than 10 days as determined by the chairman of the meeting prior to the adjournment of such reconvened meeting. Notice of the reconvening of any adjourned meeting shall be given as provided in Section 15.2(1), except that such notice need be given only once not less than five days prior to the date on which the meeting is scheduled to be reconvened. Notice of the reconvening of an adjourned meeting shall state expressly the percentage, as provided above, of the principal amount of the Outstanding Securities of such series which shall constitute a quorum.

Except as limited by the proviso to Section 9.2, any resolution presented to a meeting or adjourned meeting duly reconvened at which a quorum is present as aforesaid may be adopted only by the affirmative vote of the Holders of a majority in principal amount of the Outstanding Securities of that series; provided, however, that, except as limited by the proviso to Section 9.2, any resolution with respect to any request, demand, authorization, direction, notice, consent,

waiver or other Act which this Indenture expressly provides may be made, given or taken by the Holders of a specified percentage, which is less than a majority, in principal amount of the Outstanding Securities of a series may be adopted at a meeting or an adjourned meeting duly reconvened and at which a quorum is present as aforesaid by the affirmative vote of the Holders of such specified percentage in principal amount of the Outstanding Securities of such series.

Any resolution passed or decision taken at any meeting of Holders of Securities of any series duly held in accordance with this Section shall be binding on all the Holders of Securities of such series and the Coupons appertaining thereto, whether or not such Holders were present or represented at the meeting.

Section 15.5. Determination of Voting Rights; Conduct and Adjournment of Meetings.

(1) Notwithstanding any other provisions of this Indenture, the Trustee may make such reasonable regulations as it may deem advisable for any meeting of Holders of Securities of such series in regard to proof of the holding of Securities of such series and of the appointment of proxies and in regard to the appointment and duties of inspectors of votes, the submission and examination of proxies, certificates and other evidence of the right to vote, and such other matters concerning the conduct of the meeting as it shall deem appropriate. Except as otherwise permitted or required by any such regulations, the holding of Securities shall be proved in the manner specified in Section 1.4 and the appointment of any proxy shall be proved in the manner specified in Section 1.4 or by having the signature of the person executing the proxy witnessed or guaranteed by any trust company, bank or banker authorized by Section 1.4 to certify to the holding of Bearer Securities. Such regulations may provide that written instruments appointing proxies, regular on their face, may be presumed valid and genuine without the proof specified in Section 1.4 or other proof.

(2) The Trustee shall, by an instrument in writing, appoint a temporary chairman of the meeting, unless the meeting shall have been called by the Company or by Holders of Securities as provided in Section 15.2(2), in which case the Company, the Guarantor or the Holders of Securities of the series calling the meeting, as the case may be, shall in like manner appoint a temporary chairman. A permanent chairman and a permanent secretary of the meeting shall be elected by vote of the Persons entitled to vote a majority in principal amount of the Outstanding Securities of such series represented at the meeting.

(3) At any meeting, each Holder of a Security of such series or proxy shall be entitled to one vote for each $1,000 principal amount of Securities of such series held or represented by him; provided, however, that no vote shall be cast or counted at any meeting in respect of any Security challenged as not Outstanding and ruled by the chairman of the meeting to be not Outstanding. The chairman of the meeting shall have no right to vote, except as a Holder of a Security of such series or proxy.

(4) Any meeting of Holders of Securities of any series duly called pursuant to Section 15.2 at which a quorum is present may be adjourned from time to time by Persons entitled to vote a majority in principal amount of the Outstanding Securities of such series represented at the meeting; and the meeting may be held as so adjourned without further notice.

Section 15.6. Counting Votes and Recording Action of Meetings.

The vote upon any resolution submitted to any meeting of Holders of Securities of any series shall be by written ballots on which shall be subscribed the signatures of the Holders of Securities of such series or of their representatives by proxy and the principal amounts and serial numbers of the Outstanding Securities of such series held or represented by them. The permanent chairman of the meeting shall appoint two inspectors of votes who shall count all votes cast at the meeting for or against any resolution and who shall make and file with the secretary of the meeting their verified written reports in triplicate of all votes cast at the meeting. A record, at least in triplicate, of the proceedings of each meeting of Holders of Securities of any series shall be prepared by the secretary of the meeting and there shall be attached to said record the original reports of the inspectors of votes on any vote by ballot taken thereat and affidavits by one or more persons having knowledge of the facts setting forth a copy of the notice of the meeting and showing that said notice was given as provided in Section 15.2 and, if applicable, Section 15.4. Each copy shall be signed and verified by the affidavits of the permanent chairman and secretary of the meeting and one such copy shall be delivered to the Company and the Guarantors, and another to the Trustee to be preserved by the Trustee, the latter to have attached thereto the ballots voted at the meeting. Any record so signed and verified shall be conclusive evidence of the matters therein stated.

ARTICLE XVI

Guarantees

Section 16.1. Unconditional Guarantee.

Subject to the provisions of this Article XVI, each of the Initial Guarantors hereby fully, unconditionally and irrevocably guarantees, and each Subsidiary required to execute a supplemental indenture as a Subsequent Guarantor pursuant to Section 10.12 will be deemed to fully, unconditionally and irrevocably guarantee, to each Holder and to the Trustee on behalf of the Holders, the due and punctual payment of the principal of, and premium, if any, and interest on, and Additional Amounts and other amounts payable with respect to, each Security, the due and punctual payment of interest on the overdue principal of, and premium, if any, and interest on, and Additional Amounts and other amounts payable with respect to, the Securities, to the extent 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 such Securities and this Indenture, when and as the same shall become due and payable, whether at Stated Maturity, by declaration of acceleration, upon redemption, repurchase or repayment or otherwise. In case of the failure of

the Company punctually to pay any such principal, premium, interest, Additional Amounts or other payment, each Guarantor hereby agrees to cause any such payment to be made punctually when and as the same shall become due and payable, whether at Stated Maturity, by declaration of acceleration, upon redemption, repurchase or repayment or otherwise, and as if such payment were made by the Company.

Each Guarantor hereby agrees that its obligations hereunder shall be as principal and not merely as surety, and shall be absolute, irrevocable and unconditional, irrespective of, and shall be unaffected by, any invalidity, irregularity or unenforceability of any Security or this Indenture, any failure to enforce the provisions of any Security or this Indenture, or any waiver, modification, consent or indulgence granted with respect thereto by the Holder of such Security or the Trustee, the recovery of any judgment against the Company or any action to enforce the same, or any other circumstances which may otherwise constitute a legal or equitable discharge of a surety or guarantor. Each Guarantor hereby waives diligence, presentment, demand of payment, filing of claims with a court in the event of merger, insolvency or bankruptcy of the Company, any right to require a proceeding first against the Company, the benefit of discussion, protest or notice with respect to any such Security or the debt evidenced thereby and all demands whatsoever, and covenants that no Guarantee will be discharged as to any such Security except by payment in full of all amounts due in respect of such Security and by the complete performance of all other obligations contained in such Security and this Indenture.

The maturity of the obligations guaranteed hereby may be accelerated as provided in Article V for the purposes of this Article XVI. In the event of any declaration of acceleration of such obligations as provided in Article V, such obligations (whether or not due and payable) shall forthwith become due and payable by each Guarantor for the purpose of this Article XVI. In addition, without limiting the foregoing provisions, upon the effectiveness of an acceleration under Article V, the Trustee shall promptly make a demand for payment on the Securities under each Guarantee provided for in this Article XVI.

If the Trustee or the Holder of any Security is required by any court or otherwise to return to the Company or any Guarantor, or any custodian, receiver, liquidator, trustee, sequestrator or other similar official acting in relation to the Company or any Guarantor, any amount paid to the Trustee or such Holder in respect of a Security, any Guarantee, to the extent theretofore discharged, shall be reinstated in full force and effect. Each Guarantor further agrees, to the fullest extent that it may lawfully do so, that, as between it, on the one hand, and the Holders and the Trustee, on the other hand, the maturity of the obligations guaranteed hereby may be accelerated as provided in Article V hereof for the purposes of each Guarantee, notwithstanding any stay, injunction or other prohibition issued or imposed under any applicable bankruptcy law preventing such acceleration in respect of the obligations guaranteed hereby.

A Guarantor shall be subrogated to all rights of the Holder of any Security against the Company in respect of any amounts paid to the Trustee or such Holder by such Guarantor pursuant to the provisions of its Guarantee; provided, however, that no Guarantor shall be entitled to enforce, or to receive any payments arising out of or based upon, such right of

subrogation until the principal of, and premium, if any, and interest on, and any Additional Amounts and other amounts payable with respect to, all Securities shall have been paid in full and all other obligations contained in the Securities and this Indenture shall have been performed. If any amount shall be paid to any Guarantor in violation of the preceding sentence and all amounts payable in respect of the Securities shall not have been paid in full, such amount shall be deemed to have been paid to such Guarantor for the benefit of, and held in trust for the benefit of, the Holders, and shall forthwith be paid to the Trustee for the benefit of the Holders to be credited and applied upon such amounts. Each Guarantor acknowledges that it will receive direct and indirect benefits from the issuance of the Securities pursuant to this Indenture.

Anything to the contrary in this Indenture notwithstanding, each Guarantee shall be, and hereby is, limited to the maximum amount that can be guaranteed by the applicable Guarantor without rendering such Guarantee, as it relates to such Guarantor, voidable under any applicable law relating to fraudulent conveyance, fraudulent transfer or similar laws affecting the rights of creditors generally.

Each Guarantee set forth in this Section 16.1 shall be valid and obligatory for any purpose with respect to a Security until the certificate of authentication of such Security shall have been signed by or on behalf of the Trustee.

Section 16.2. Operation of Guarantees.

By execution of this Agreement (in the case of the Initial Guarantors) or a supplemental indenture (in the case of any Subsequent Guarantors), the Guarantee of each Guarantor in respect of the Securities shall be set forth in Section 16.1 and shall be effective for all purposes upon authentication of a particular Security by or on behalf of the Trustee, regardless of whether such authentication occurs prior to a Subsequent Guarantor’s execution of the required supplemental indenture, and shall not require any Guarantor’s endorsement on the Securities.

Section 16.3 Termination of Guarantees.

The Guarantee of any Guarantor (including the Initial Guarantors), and the provisions of any supplemental indenture with respect to a Guarantee by such Guarantor and this Indenture with respect to such Guarantor, shall be released, terminated and of no further force and effect, without further action by any party, immediately upon the release or termination of such Guarantor’s guarantee of indebtedness under all Credit Agreements to which it is a party.

* * * * *

IN WITNESS WHEREOF, the parties hereto have caused this Indenture to be duly executed, and their respective corporate seals to be hereunto affixed and attested, all as of the day and year first above written.


COX RADIO, INC., As Company

By		/s/ Richard J. Jacobson
Name:		Richard J. Jacobson
Title:

WSB, INC.,
As Initial Guarantor

By		/s/ Andrew A. Merdek
Name:		Andrew A. Merdek
Title:

WHIO INC., As Initial Guarantor

By		/s/ Andrew A. Merdek
Name:		Andrew A. Merdek
Title:

THE BANK OF NEW YORK, As Trustee

By		/s/ Robert A. Massimillo
Name:		Robert A. Massimillo
Title:		Assistant Vice President

EX-10.1 3 dex101.htm FIVE YEAR CREDIT AGREEMENT Five Year Credit Agreement

Exhibit 10.1

FIVE-YEAR

CREDIT AGREEMENT

dated as of June 4, 2004

by and among

COX RADIO, INC.

and

The Lenders Party Hereto

and

JPMORGAN CHASE BANK

as Administrative Agent for the Lenders

WACHOVIA BANK, NATIONAL ASSOCIATION

as Co-Syndication Agent

BANK OF AMERICA, N.A.

as Co-Syndication Agent

J.P. MORGAN SECURITIES INC.

as Co-Lead Arranger and Joint Bookrunner

WACHOVIA CAPITAL MARKETS, LLC,

as Co-Lead Arranger and Joint Bookrunner

COX RADIO, INC.

Table of Contents


ARTICLE I			1
	SECTION 1.01.	Defined Terms	1
	SECTION 1.02.	Terms Generally	15
	SECTION 1.03.	Accounting Terms; GAAP	15

ARTICLE II			15
	SECTION 2.01.	Revolving Credit Loans	15
	SECTION 2.02.	Setoff, Counterclaims and Taxes	24
	SECTION 2.03.	Withholding Tax Exemption	25
	SECTION 2.04.	Discretionary Loans	26
	SECTION 2.05.	Interest Election	27
	SECTION 2.06.	Obligations Several, Not Joint	28
	SECTION 2.07.	Replacement of Lenders	28
	SECTION 2.08.	Letters of Credit	29
	SECTION 2.09.	Evidence of Debt	33

ARTICLE III			34
	SECTION 3.01.	Optional Prepayments	34
	SECTION 3.02.	Required Prepayments	34
	SECTION 3.03.	Place, etc. of Payments and Prepayments	35

ARTICLE IV			36
	SECTION 4.01.	Optional Reduction or Termination of Commitments	36
	SECTION 4.02.	Termination of Commitments	36
	SECTION 4.03.	Commitment Fees	36
	SECTION 4.04.	LC Participation Fees	37
	SECTION 4.05.	Administrative Agent’s Fee	37

ARTICLE V			37

ARTICLE VI			37
	SECTION 6.01.	Organization; Qualification; Subsidiaries	37
	SECTION 6.02.	Financial Statements	38
	SECTION 6.03.	Actions Pending	38
	SECTION 6.04.	Default	38
	SECTION 6.05.	Title to Assets; Licenses; Intellectual Property	38
	SECTION 6.06.	Payment of Taxes	39
	SECTION 6.07.	Conflicting or Adverse Agreements or Restrictions	39
	SECTION 6.08.	Purpose of Loans	39
	SECTION 6.09.	Authority; Validity	39
	SECTION 6.10.	Consents or Approvals	39
	SECTION 6.11.	Compliance with Law	40


	SECTION 6.12.	ERISA	40
	SECTION 6.13.	Investment Company Act	40
	SECTION 6.14.	Disclosure	40

ARTICLE VII			40
	SECTION 7.01.	Conditions Precedent to the Initial Extension of Credit	40
	SECTION 7.02.	Conditions Precedent to Each Extension of Credit	41

ARTICLE VIII			42
	SECTION 8.01.	Certain Financial Covenants	42
	SECTION 8.02.	Financial Statements and Information	43
	SECTION 8.03.	Existence; Laws; Obligations	44
	SECTION 8.04.	Notice of Litigation and Other Matters	45
	SECTION 8.05.	Books and Records	45
	SECTION 8.06.	Inspection of Property and Records	45
	SECTION 8.07.	Maintenance of Property; Insurance	46
	SECTION 8.08.	ERISA	46
	SECTION 8.09.	Maintenance of Business Lines	46
	SECTION 8.10.	Compliance with Material FCC Licenses	46

ARTICLE IX			47
	SECTION 9.01.	Mortgages, Etc	47
	SECTION 9.02.	Merger; Consolidation; Disposition of Assets	48
	SECTION 9.03.	Restricted Payments	48
	SECTION 9.04.	Limitation on Margin Stock	48
	SECTION 9.05.	Loans and Advances to and Investments in Unrestricted Subsidiaries	48
	SECTION 9.06.	Debt	49
	SECTION 9.07.	Transactions with Affiliates	49

ARTICLE X			50
	SECTION 10.01.	Failure to Pay Principal or Interest	50
	SECTION 10.02.	Failure to Pay Other Sums	50
	SECTION 10.03.	Failure to Pay Other Debt	50
	SECTION 10.04.	Misrepresentation or Breach of Warranty	51
	SECTION 10.05.	Violation of Certain Covenants	51
	SECTION 10.06.	Violation of Other Covenants, etc.	51
	SECTION 10.07.	Undischarged Judgment	51
	SECTION 10.08.	Change of Control	51
	SECTION 10.09.	Assignment for Benefit of Creditors or Nonpayment of Debts	51
	SECTION 10.10.	Voluntary Bankruptcy	51
	SECTION 10.11.	Involuntary Bankruptcy	52
	SECTION 10.12.	Dissolution	52



ARTICLE XI			52

ARTICLE XII			53
	SECTION 12.01.	Appointment of Administrative Agent	53
	SECTION 12.02.	Indemnification of Administrative Agent	53
	SECTION 12.03.	Limitation of Liability	54
	SECTION 12.04.	Independent Credit Decision	54
	SECTION 12.05.	Rights of JPMCB	55
	SECTION 12.06.	Successor to the Administrative Agent	55
	SECTION 12.07.	Other Agents and Sub-Agents	55

ARTICLE XIII			56
	SECTION 13.01.	Payment of Expenses	56
	SECTION 13.02.	Notices	56
	SECTION 13.03.	Setoff	57
	SECTION 13.04.	Indemnity and Judgments	58
	SECTION 13.05.	Interest	58
	SECTION 13.06.	Governing Law; Submission to Jurisdiction; Venue	59
	SECTION 13.07.	Survival of Representations and Warranties; Binding Effect; Assignment	60
	SECTION 13.08.	Counterparts	64
	SECTION 13.09.	Severability	64
	SECTION 13.10.	Descriptive Headings	64
	SECTION 13.11.	Representation of the Lenders; Notification by the Lenders	64
	SECTION 13.12.	Final Agreement of the Parties	64
	SECTION 13.13.	Waiver of Jury Trial	64
	SECTION 13.14.	Confidentiality	65

iii

List of Exhibits

The Exhibits below have been omitted but will be provided to the Securities and Exchange Commission supplementally upon its request.



Exhibit 2.01(a)	-	Lenders and Commitments

Exhibit 2.01(h)(iv)	-	Eurocurrency Liabilities (Regulation D)

Exhibit 2.08	-	Existing Letters of Credit

Exhibit 6.01	-	List of Subsidiaries

Exhibit 6.03	-	List of Actions Pending

Exhibit 7.01(a)	-	Opinion of the Company’s Counsel addressed to the Lenders

Exhibit 7.01(b)	-	Officer’s Certificate

Exhibit 9.01(d)	-	List of Liens and Security Interests

Exhibit 13.02	-	Addresses for Notices

Exhibit 13.07(c)	-	Assignment and Acceptance

THIS FIVE-YEAR CREDIT AGREEMENT (the “Agreement”), made as of the 4^thday of June, 2004, is among COX RADIO, INC. (the “Company”), the LENDERS party hereto and JPMORGAN CHASE BANK, as Administrative Agent for the Lenders (hereinafter in such capacity called the “Administrative Agent”), WACHOVIA BANK, NATIONAL ASSOCIATION, as Co-Syndication Agent, BANK OF AMERICA, N.A., as Co-Syndication Agent, J.P. MORGAN SECURITIES INC., as Co-Lead Arranger and Joint Bookrunner and WACHOVIA CAPITAL MARKETS, LLC, as Co-Lead Arranger and Joint Bookrunner.

The Company has requested the Lenders to extend Commitments (such term and each other capitalized term used and not otherwise defined herein having the meaning assigned to it in Article I) under which the Company may obtain extensions of credit in an aggregate principal or face amount at any time outstanding not greater than $500,000,000 (of which up to $50,000,000 may be in the form of letters of credit). The proceeds of the Borrowings made and the letters of credit issued hereunder will be used by the Company only to refinance other borrowings of the Company and letters of credit issued for its account and for general corporate purposes of the Company and its Subsidiaries.

The Lenders are willing to establish the credit facility referred to in the preceding paragraph upon the terms and subject to the conditions set forth herein. Accordingly, the parties hereto agree as follows:

ARTICLE I

SECTION 1.01. Defined Terms. As used in this Agreement, the following words and terms shall have the respective meanings indicated opposite each of them:

“Additional Letter of Credit” shall mean a letter of credit issued hereunder by the Issuing Lender on or after the date hereof.

“Affiliate” shall mean, when used with respect to a specified Person, another Person that directly, or indirectly through one or more intermediaries, Controls or is Controlled by or is under common Control with the Person specified.

“Agreement” shall mean this Five-Year Credit Agreement, as the same may be amended from time to time.

“Alternate Base Rate” shall mean, for any day, a rate per annum equal to the greater of (a) the Floating Rate in effect on such day; or (b) the Federal Funds Borrowing Rate in effect for such day plus ½ of 1%. For purposes of this Agreement, any change in the Alternate Base Rate due to a change in the Floating Rate or the Federal Funds Borrowing Rate shall be effective on the effective date of such change in the Floating Rate or the Federal Funds Borrowing Rate.

“Alternate Base Rate Loans” shall mean those Loans which may be made under this Agreement and which are described in Section 2.01(e)(ii) on which the Company shall pay interest at a rate based on the Alternate Base Rate.

“Applicable Percentage” shall mean, with respect to any Lender at any time, the percentage of the aggregate amount of the Commitments represented by such Lender’s Commitment at such time. If the Commitments have terminated or expired, the Applicable Percentage shall be determined based upon the Commitments most recently in effect, giving effect to any assignments.

“Assignment and Acceptance” shall have the meaning specified in Section 13.07(c) hereof.

“Borrowings” and individually, “Borrowing” shall mean a Conventional Borrowing.

“Borrowing Date” shall mean a date upon which a Borrowing or Discretionary Borrowing is to be made under Article II.

“Borrowing Pro Rata Share” shall mean, with respect to any Lender, a fraction (expressed as a percentage rounded upward, if necessary, to the nearest whole multiple of 0.01%) (A) the numerator of which shall be a principal amount equal to such Lender’s Commitment, and (B) the denominator of which shall be the aggregate principal amount equal to all Lenders’ Commitments.

“Business Day” shall mean a day when the Reference Lenders and the Administrative Agent are open for business; provided that if the applicable Business Day relates to Eurodollar Loans, it shall mean a day when the Reference Lenders and the Administrative Agent are open for business and banks are open for dealings in Dollar deposits in the London interbank market.

“CD Rate” for any Interest Period shall mean, for each CD Rate Loan comprising all or part of the relevant Conventional Borrowing, an interest rate per annum determined by the Administrative Agent to be equal to the sum of:

(a) the rate per annum obtained by dividing (i) the per annum rate of interest determined by the Administrative Agent to be the average (rounded upward to the nearest whole multiple of 0.01%, if such average is not such a multiple) of the bid rate determined independently by each Reference Lender, at 10:00 a.m. (New York, New York time), or as soon thereafter as is practicable, on the first day of such Interest Period, of a certificate of deposit dealer of recognized standing selected by each Reference Lender for the purchase at face value of its certificates of deposit in an amount approximately equal or comparable to the aggregate principal amount of such CD Rate Loans, with a maturity equal to such Interest Period, by (ii) the result obtained by subtracting from 100% all reserve (including, without limitation, any imposed by the Board of Governors of the Federal Reserve System), special deposit or similar requirements (expressed as a rate per annum) applicable (or scheduled at the time of determination to become applicable during, such Interest Period) to such certificates of deposit, plus

(b) the weighted average of annual assessment rates, determined by the Administrative Agent to be in effect on the first day of such Interest Period, used to determine the then current annual assessment payable by the Reference Lenders to the Federal Deposit Insurance Corporation for such Corporation’s insuring Dollar deposits of such Reference Lenders in the United States.

“CD Rate Loans” shall mean those Loans which may be made under this Agreement and which are described in Section 2.01(e)(i) on which the Company shall pay interest at a rate based on the CD Rate.

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

“Commitment” shall mean as to any Lender the amount set forth beside such Lender’s name on Exhibit 2.01(a) attached hereto as such amount may be increased or reduced from time to time pursuant to the terms of this Agreement and “Commitments” shall mean the Commitments of all of the Lenders.

“Commitment Fees” shall have the meaning set forth in Section 4.03.

“Commitment Fee Rate” shall have the meaning set forth under the definition of “Margin Percentage”.

“Consolidated Debt” shall mean, without duplication, all Debt of the Company and its Restricted Subsidiaries on a consolidated basis determined in accordance with GAAP, and including guaranties of indebtedness for borrowed money or for the deferred purchase price of Property and obligations under or with respect to standby letters of credit of the Company and the Restricted Subsidiaries, but only to the extent such liabilities for guaranties or standby letters of credit in the aggregate exceed $25,000,000; provided further that for purposes of this definition, Consolidated Debt shall not include guaranties by the Company or any Restricted Subsidiary of overdrafts of any Restricted Subsidiary, which occur in the ordinary course of business and remain outstanding for a period not to exceed seven Business Days; provided further, that for purposes of computing the Leverage Ratio, such computation shall exclude any effect on the Company’s or any Restricted Subsidiary’s debt securities or Indexed Securities in respect of the accounting for all derivative financial instruments in accordance with GAAP, including derivative financial instruments that may be embedded in the Company’s or any Restricted Subsidiary’s debt securities or Indexed Securities and freestanding derivative financial instruments used by the Company or any Restricted Subsidiary for hedging purposes, but such computation shall in any event include the original principal amount and any accreted principal amount of such debt securities and Indexed Securities. The effect on the computation of the Leverage Ratio that may be excluded in respect of the accounting for all derivative financial instruments in accordance with GAAP includes: (i) entries associated with the mark-to-market of all freestanding and embedded derivative financial instruments classified as a component of

the Company’s or any Restricted Subsidiary’s debt securities or Indexed Securities in the consolidated balance sheet of the Company and (ii) entries to record and accrete additional debt discount that may arise from the bifurcation of derivative financial instruments embedded in the Company’s or any Restricted Subsidiary’s debt securities or Indexed Securities.

“Consolidated Interest Expense” shall mean the sum of (i) interest expense, after giving effect to any net payments made or received by the Company and its Restricted Subsidiaries with respect to interest rate swaps, caps and floors or other similar agreements, and (ii) capitalized interest expense, in each case of the Company and its Restricted Subsidiaries for the most recently completed four fiscal quarter period, all on a consolidated basis determined in accordance with GAAP; provided that for purposes of this definition, interest expense shall exclude any effect on interest expense in respect of the accounting for all derivative financial instruments in accordance with GAAP, including derivative financial instruments that may be embedded in the Company’s or any Restricted Subsidiary’s debt securities or Indexed Securities and freestanding derivative financial instruments that may be used by the Company or any Restricted Subsidiary for hedging purposes. The effect on interest expense that may be excluded in respect of the accounting for all derivative financial instruments in accordance with GAAP includes: (i) entries to record noncash interest expense (or income) associated with the mark-to-market of freestanding and embedded derivative financial instruments, (ii) noncash interest expense associated with the accretion of additional debt discount that may arise from the bifurcation of derivative financial instruments embedded in the Company’s or any Restricted Subsidiary’s debt securities or Indexed Securities, and (iii) noncash interest expense (or income) that may arise if the Company’s or any Restricted Subsidiary’s hedging strategies become ineffective, as determined in accordance with GAAP.

“Consolidated Net Worth” shall mean total assets of the Company and all Restricted Subsidiaries less all liabilities of the Company and all Restricted Subsidiaries, as determined in accordance with GAAP.

“Consolidated Operating Cash Flow” shall mean, for the most recently completed fiscal quarter and the three immediately preceding fiscal quarters, the sum of (i) operating income of the Company and its Restricted Subsidiaries (less actual cash payments for broadcast program rights and cash dividends and other cash distributions to the holders of minority interests in the Company’s Restricted Subsidiaries), to the extent otherwise reflected in operating income before giving effect to depreciation, amortization (including amortization in respect of broadcast program rights), other non-cash charges and equity in earnings (losses) of unconsolidated investees on a consolidated basis determined in accordance with GAAP and non-recurring one-time charges and (ii) cash dividends and cash distributions, other than extraordinary distributions, from unconsolidated investees of the Company and its Restricted Subsidiaries, on a consolidated basis determined in accordance with GAAP minus, without duplication, (iii) the amount of cash payments in respect of items that were originally reflected in operating income (whether in such period or any earlier period) as non-cash charges.

“Control” shall mean the possession, directly or indirectly, of the power to direct or cause the direction of the management or policies of a Person, whether through the ability to exercise voting power, by contract or otherwise. “Controlling” and “Controlled” have meanings correlative thereto.

“Conventional Borrowings” and individually, “Conventional Borrowing”, shall mean borrowings by the Company made under Section 2.01(a) or converted or continued under Section 2.05 consisting of simultaneous Loans (other than Discretionary Loans) from the Lenders.

“Conventional Loans” and individually “Conventional Loan”, shall mean CD Rate Loans, Federal Funds Rate Loans, Alternate Base Rate Loans or Eurodollar Loans, pursuant to Section 2.01(a).

“Counsel for the Company” shall mean Dow, Lohnes & Albertson, PLLC.

“Cox Family” shall include those certain trusts commonly referred to as the Dayton-Cox Trust A, the Barbara Cox Anthony Atlanta Trust, the Anne Cox Chambers Atlanta Trust, Barbara Cox Anthony, Garner Anthony, Anne Cox Chambers, and the estates, executors and administrators, and lineal descendants of the above-named individuals, any private foundation or other charitable entity of which the above-described individuals constitute a majority of the trustees, directors or managers, and any corporation, partnership, limited liability company, trust or other entity in which the above-named trusts or above-described individuals and the estates, executors and administrators, and lineal descendants of the above-named individuals in the aggregate have a direct or indirect beneficial interest or voting control of greater than 50%.

“Debt” shall mean with respect to any Person and without duplication (i) indebtedness for borrowed money or for the deferred purchase price of Property in respect of which such Person is liable, contingently or otherwise, as obligor, guarantor or otherwise, or in respect of which such Person directly or indirectly assures a creditor against loss, and (ii) the capitalized portions of obligations under leases which shall have been or should have been, in accordance with GAAP, recorded as capital leases.

“Default Rate” shall mean a rate per annum (for the actual number of days elapsed, based on a year of 365 or 366 days, as the case may be) which shall be equal to the lesser of (i) in the case of a Conventional Loan, the Alternate Base Rate plus 1%, or the Highest Lawful Rate, (ii) in the case of a Discretionary Loan, the Negotiated Rate plus 1% or the Highest Lawful Rate, and (iii) in the case of LC Disbursements, the Alternate Base Rate plus 1%, or the Highest Lawful Rate.

“Depositary” shall have the meaning set forth in Section 13.03.

“Discretionary Borrowings”, and individually “Discretionary Borrowing”, shall mean borrowings by the Company under Section 2.04 consisting of Discretionary Loans from the Lenders.

“Discretionary Loan Interest Period” shall mean the period which shall commence on the Borrowing Date with respect to a Discretionary Loan and shall end on a date which shall be agreed to by the Company and the Lender, by telephone (to be promptly confirmed in writing by the Company); provided, however, that no Discretionary Loan Interest Period shall extend beyond the Termination Date.

“Discretionary Loans” shall have the meaning set forth in Section 2.04(a).

“Dollars” and “$” shall mean lawful currency of the United States of America.

“ERISA” shall mean the Employee Retirement Income Security Act of 1974, as amended.

“Eurodollar Event” shall have the meaning set forth in Section 2.01(f)(i).

“Eurodollar Loans” shall mean those Loans which may be made under this Agreement and which are described in Section 2.01(e)(iii) on which the Company shall pay interest at a rate based on the Eurodollar Rate.

“Eurodollar Rate” for any Interest Period shall mean, for each Eurodollar Loan comprising part of the relevant Conventional Borrowing, an interest rate per annum equal to the per annum rate appearing on Page 3750 of the Dow Jones Market Service (or on any successor or substitute page of such Service, or any successor to or substitute for such Service, providing rate quotations comparable to those currently provided on such page of such Service, as determined by the Administrative Agent from time to time for purposes of providing quotations of interest rates applicable to dollar deposits in the London interbank market) at approximately 11:00 a.m., London time, two Business Days prior to the commencement of such Interest Period, as the rate for dollar deposits with a maturity comparable to such Interest Period. In the event that such rate is not available at such time for any reason, then the “Eurodollar Rate” with respect to such Borrowing for such Interest Period shall be the rate at which dollar deposits of $5,000,000 and for a maturity comparable to such Interest Period are offered by the principal London office of the Administrative Agent in immediately available funds in the London interbank market at approximately 11:00 a.m., London time, two Business Days prior to the commencement of such Interest Period.

“Event of Default” shall mean any of the events specified in Article X; provided that there has been satisfied any requirement in connection with such event for the giving of notice, or the lapse of time, or the happening of any further condition, event or act, and “Default” shall mean any of such events, whether or not any such requirement has been satisfied.

“Excluded Taxes” shall mean, with respect to the Administrative Agent, any Issuing Lender, any Lender or any other recipient of any payment to be made by or on account of any obligation of the Company hereunder:

(a) taxes that are imposed on or measured by its overall net income by the United States;

(b) taxes that are imposed on or measured by its overall net income or profits (and franchise taxes imposed on or measured by income, earnings or retained earnings) by (i) the state or foreign jurisdiction in or under the laws of which it is organized or any political subdivision thereof, (ii) the state or foreign jurisdiction of its principal office or Lending Office, or (iii) any state or foreign jurisdiction solely as a result of a current or former connection between it and such jurisdiction (other than any such connection arising solely from its having executed, delivered or performed its obligations or received payment under, or enforced, this Agreement, the Loans or the Letters of Credit) or any political subdivision thereof;

(c) any branch profits taxes imposed by the United States or any similar tax imposed by any other jurisdiction in which it is located, or any political subdivision thereof; and

(d) in the case of a Foreign Lender, any U.S. withholding tax that is imposed on amounts payable to such Foreign Lender at the time such Foreign Lender becomes a party hereto (or designates a new Lending Office, but only to the extent greater than the amount of any Indemnified Taxes to which such Foreign Lender would be entitled at the time of such designation) or is attributable to such Foreign Lender’s failure or inability (other than as a result of a Change in Law) to comply with Section 2.03.

“Existing Credit Agreements” shall mean (a) the 364-Day Credit Agreement dated as of June 30, 2000, as amended by the Amended and Restated 364-Day Credit Agreement dated as of June 29, 2001, among the Company, the banks party thereto and The Chase Manhattan Bank, as agent for such banks, the Amendment dated as of December 17, 2001, the Amended and Restated 364-Day Credit Agreement dated as of June 28, 2002 among the Company, the banks party thereto and JPMorgan Chase Bank, as agent for such banks, and the Amended and Restated 364-Day Credit Agreement dated as of June 27, 2003 among the Company, the banks party thereto and JPMorgan Chase Bank, as agent for such banks, and (b) the Five-Year Credit Agreement dated as of June 30, 2000, as amended by the First Amendment dated as of June 29, 2001, the Second Amendment dated as of December 17, 2001 and the Third Amendment dated as of June 28, 2002, among the Company, the banks party thereto, and The Chase Manhattan Bank, as agent for such banks.

“Existing Letters of Credit” shall mean the letters of credit issued by an Issuing Lender before the date hereof, outstanding on the date hereof and listed in Exhibit 2.08.

“FCC” shall mean the Federal Communications Commission or any successor governmental agency thereto.

“Federal Funds Borrowing Rate” shall mean, for any day, a fluctuating interest rate per annum equal to the weighted average (rounded upwards, if necessary, to the next 1/100 of 1%) of the rates on overnight Federal funds transactions with members of the Federal Reserve System arranged by Federal funds brokers, as published on the next succeeding Business Day by the Federal Reserve Bank of New York, or, if such rate is not so published for any day that is a Business Day, the average (rounded upwards, if necessary, to the next 1/100 of 1%) of the quotations for such day received by the Administrative Agent from three Federal funds brokers of recognized standing selected by it.

“Federal Funds Rate Loans” shall mean those Loans which may be made under this Agreement and which are described in Section 2.01(e)(iv) on which the Company shall pay interest at a rate based on the Federal Funds Borrowing Rate.

“Financial Institution” shall mean an entity which regularly engages in one or more of the following activities: making loans, issuing letters of credit or purchasing loans or loan commitments or interests in loans, loan commitments or letters of credit.

“Floating Rate” shall mean, as of a particular date, the prime rate most recently determined by JPMCB. Without notice to the Company or any other Person, the Floating Rate shall change automatically from time to time as and in the amount by which said prime rate shall fluctuate, with each such change to be effective as of the date of each change in such prime rate. The Floating Rate is a reference rate and does not necessarily represent the lowest or best rate actually charged to any customer. JPMCB may make commercial loans or other loans at rates of interest at, above or below the Floating Rate.

“Foreign Lender” shall mean any Lender that is not a “United States person” (as such term is defined in Section 7701(a)(30) of the Code).

“GAAP” shall mean generally accepted accounting principles in the United States of America.

“Highest Lawful Rate” shall mean the maximum nonusurious interest rate, if any, that at any applicable time may be contracted for, taken, reserved, charged or received on any Revolving Credit Loan, LC Disbursement or on the other amounts which may be owing to any Lender pursuant to this Agreement (including, without limitation, pursuant to Section 2.04) under the laws applicable to such Lender and this transaction.

“Indemnified Taxes” shall mean Taxes other than Excluded Taxes.

“Indexed Securities” shall mean securities or financial contracts of the Company issued and outstanding from time to time whose fair value is derived from an index, such as the trading price of another referenced security.

“Interest Election Request” shall mean a request by the Company to convert or continue a Conventional Borrowing in accordance with Section 2.05.

“Interest Payment Date” shall mean the last day of each Interest Period.

“Interest Period” shall mean, with respect to each CD Rate Loan and Eurodollar Loan hereunder, the period commencing on the Borrowing Date of such Loan or the date such Borrowing is continued or converted from another type of Borrowing and:

(a) in the case of CD Rate Loans, ending 30, 60, 90 or 180 days thereafter; and

(b) in the case of Eurodollar Loans, ending one, two, three or six months thereafter;

in each case as the Company may select in the Notice of Conventional Borrowing or Interest Election Request; provided, however, that (i) no Interest Period for a Conventional Loan may be chosen that would extend beyond the Termination Date, (ii) whenever the last day of any Interest Period would otherwise occur on a day other than a Business Day, the last day of such Interest Period shall be extended to occur on the next succeeding Business Day; provided that with respect to Eurodollar Loans, any Interest Period that would otherwise end on a day that is not a Business Day shall be extended to the next succeeding Business Day only if such Business Day does not fall in another month, and in the event the next succeeding Business Day falls in another month, the Interest Period for such Eurodollar Loan shall be accelerated so that such Interest Period shall end on the next preceding Business Day and (iii) any Interest Period that begins on a day for which there is no numerically corresponding day in the last month of such Interest Period shall end on the last Business Day of the last month of such Interest Period. In no event shall there be more than 10 Interest Periods in effect at any one time.

“Issuing Lender” shall mean, with respect to any Letter of Credit, JPMCB, Wachovia Bank, National Association, or Bank of America, N.A., as selected by the Company, in its capacity as issuer of such Letter of Credit, and its successors in such capacity as provided in Section 2.08(i). The Issuing Lender may, in its discretion, arrange for one or more Letters of Credit to be issued by Affiliates of the Issuing Lender, in which case the term “Issuing Lender” shall include any such Affiliate executing this Agreement as Issuing Lender, in its capacity as issuer of Letters of Credit hereunder.

“JPMCB” shall mean JPMorgan Chase Bank, a New York banking corporation having its principal offices located at 270 Park Avenue, New York, New York 10017.

“LC Disbursement” shall mean a payment made by the Issuing Lender pursuant to a Letter of Credit.

“LC Exposure” shall mean, at any time, the sum of (i) the aggregate undrawn amount of all outstanding Letters of Credit at such time plus (ii) the aggregate amount of all LC Disbursements that have not yet been reimbursed by or on behalf of the Company at such time. The LC Exposure of any Lender at any time shall be its Applicable Percentage of the total LC Exposure at such time.

“LC Participation Fees” shall have the meaning set forth in Section 4.04.

“Lender Affiliate” shall mean, (a) with respect to any Lender, (i) an Affiliate of such Lender or (ii) any entity (whether a corporation, partnership, trust or otherwise) that is primarily engaged in making, purchasing, holding or otherwise investing in bank loans and similar extensions of credit in the ordinary course of its business and is Controlled by a Lender or an Affiliate of such Lender and (b) with respect to any Lender that is a fund which invests in bank loans and similar extensions of credit, any other fund that invests in bank loans and similar extensions of credit and is Controlled by the same investment advisor as such Lender or by an Affiliate of such investment advisor.

“Lenders” shall mean the Persons listed on Exhibit 2.01(a), each such Lender’s respective successors (which successors shall include any entity resulting from a merger or consolidation) and any other Person that shall have become a party hereto pursuant to an Assignment and Acceptance, other than any such Person that ceases to be a party hereto pursuant to an Assignment and Acceptance.

“Lending Office” shall mean, with respect to any Lender, as to a Conventional Loan, its principal office in the city identified with such Lender, in Section 13.02, or such other office or branch of such Lender as it shall designate in writing from time to time to the Company.

“Letter of Credit” shall mean any Existing Letter of Credit or Additional Letter of Credit.

“Leverage Ratio” shall mean, at any time, the ratio of (a) Consolidated Debt (less the aggregate amount of cash and cash equivalents of the Company and its Restricted Subsidiaries representing the unused proceeds of securities issued after the date hereof to refinance Debt obligations scheduled to mature within 90 days) as of the last day of the fiscal quarter most recently ended for which financial statements shall have been delivered to the Lenders pursuant to Section 8.02, to (b) Pro Forma Consolidated Operating Cash Flow for the period ending on such day.

“Lien” shall mean, with respect to any asset, (a) any mortgage, deed of trust, lien, pledge, hypothecation, encumbrance, charge or security interest in, on or of such asset and (b) the interest of a vendor or a lessor under any conditional sales agreement, capital lease or title retention agreement (or any financing lease having substantially the same economic effect as any of the foregoing) relating to such asset.

“Loans”, and individually “Loan” shall mean CD Rate Loans, Federal Funds Rate Loans, Alternate Base Rate Loans, Eurodollar Loans, Discretionary Loans, and/or Conventional Loans, as the case may be.

“Majority Lenders” shall mean, for the period from the date hereof to and including the Termination Date, Lenders having more than 50% of the Commitments and, for the period after the Termination Date until such time as the Revolving Credit Loans are paid in full, Lenders having more than 50% of the aggregate principal amount of Revolving Credit Loans outstanding and the aggregate LC Exposure.

“Margin Percentage” shall mean at any date that percentage (a) to be added to the CD Rate, the Federal Funds Borrowing Rate or the Eurodollar Rate, as appropriate, pursuant to Section 2.01(e)(i), Section 2.01(e)(iii) or Section 2.01(e)(iv) for purposes of determining the per annum rate of interest applicable from time to time to CD Rate Loans, Federal Funds Rate Loans and Eurodollar Loans and (b) to be used in computing the Commitment Fee Rate pursuant to Section 4.03, set forth under the appropriate column below opposite the Category corresponding to the Company’s corporate credit ratings by S&P or Moody’s, respectively, on such date:


		Margin Percentage
Category	Ratings	CD Rate		Eurodollar Rate		Federal Funds Borrowing Rate		Commitment Fee Rate
1	>A-/A3	.525	%	.400	%	.525	%	.100	%
2	BBB+/Baa1	.625	%	.500	%	.625	%	.125	%
3	BBB/Baa2	.750	%	.625	%	.750	%	.150	%
4	BBB-/Baa3	.875	%	.750	%	.875	%	.200	%
5	<BB+/Ba1	1.125	%	1.000	%	1.125	%	.250	%

; provided however that for any date on which the sum of (i) aggregate principal amount of outstanding Loans (including Discretionary Loans) and the aggregate LC Exposure exceeds 50% of the aggregate Commitments hereunder (or, following the termination of the Commitments hereunder, 50% of the aggregate Commitments hereunder immediately prior to such termination), the “Margin Percentage” (other than in respect of the Commitment Fee Rate) will be increased by 0.125%.

For purposes of the foregoing, (i) if either S&P or Moody’s shall not have in effect a corporate credit rating (other than by reason of the circumstances referred to in the last sentence of this definition), then the Margin Percentage shall be based upon the rating of the other rating agency; (ii) if the two corporate credit ratings established or deemed to have been established by S&P and Moody’s for the Company shall fall within different Categories from one another and such difference shall be one ratings level, the Margin Percentage shall be based on the Category corresponding to the higher of the two ratings; (iii) if the two corporate credit ratings established or deemed to have been established by S&P and Moody’s for the Company shall fall within different Categories from one another and such difference shall be two ratings levels or more, the Margin Percentage shall be based on the Category corresponding to the rating at midpoint or, if there is no midpoint rating, the rating which is one level lower than the higher rating ,and

(iv) if the corporate credit ratings established or deemed to have been established by S&P or Moody’s for the Company shall be changed (other than as a result of a change in the rating system of S&P or Moody’s), such change shall be effective as of the date on which it is first announced by the applicable rating agency. Each change in the Margin Percentage shall apply during the period commencing on the effective date of such change and ending on the date immediately preceding the effective date of the next such change. If the rating system of S&P or Moody’s shall change, or if any such rating agency shall cease to be in the credit rating business, the Company and the Lenders shall negotiate in good faith to amend this definition to reflect such changed rating system or the unavailability of ratings from such rating agency and, pending the effectiveness of any such amendment, the Margin Percentage shall be determined by reference to the rating most recently in effect prior to such change or cessation.

“Margin Stock” shall mean “margin stock” as that term is defined in Regulation U of the Board of Governors of the Federal Reserve System.

“Material Adverse Effect” shall mean a material adverse effect on the business, properties or financial condition of the Company and its Restricted Subsidiaries on a consolidated basis or on the ability of the Company to perform its obligations under this Agreement.

“Material FCC Licenses” shall have the meaning set forth in Section 8.04.

“Maximum Permissible Rate” shall have the meaning set forth in Section 13.05.

“Moody’s” shall mean Moody’s Investors Service, Inc.

“Negotiated Rate” shall mean, in the case of any Discretionary Loan, the rate of interest per annum quoted by the applicable Lender to, and accepted by, the Company at the time of the applicable borrowing request hereunder as the rate such Discretionary Loan shall bear for the requested Discretionary Loan Interest Period.

“Notice of Conventional Borrowing” shall have the meaning set forth in Section 2.01(c).

“Officer’s Certificate” shall mean a certificate signed in the name of the Company by either its Chief Executive Officer, its President, one of its Vice Presidents or its Treasurer.

“Other Taxes” shall mean all present or future stamp, registration or documentary taxes or any other excise or property taxes, charges or similar levies arising from any payment made hereunder or from the execution, delivery, registration or enforcement of, or otherwise with respect to, this Agreement, the Loans or the Letters of Credit.

“PBGC” shall have the meaning set forth in Section 6.12.

“Permitted Lien” shall mean any Lien permitted pursuant to Section 9.01.

“Person” shall mean an individual, partnership, joint venture, corporation, limited liability company, bank, trust, unincorporated organization, government or any department or agency thereof or other entity.

“Plan” shall mean any employee pension benefit plan within the meaning of Title IV of ERISA which is either (i) maintained for employees of the Company, of any Subsidiary, or of any member of a “controlled group of corporations” or “combined group of trades or businesses under common control” as such terms are defined, respectively, in Sections 1563 and 414 of the Internal Revenue Code of 1986, as amended, and the regulations thereunder, of which the Company or any Subsidiary is a party, or (ii) maintained pursuant to a collective bargaining agreement or any other arrangement under which more than one employer makes contributions and to which the Company, any Subsidiary or any member of a “controlled group of corporations” or “combined group of trades or businesses under common control” defined as aforesaid, is at the time in question making or accruing an obligation to make contributions or has within the preceding five plan years made contributions.

“Prepayment Pro Rata Share” shall mean, with respect to any Lender as to prepayment of Conventional Loans, a fraction (expressed as a percentage rounded upward, if necessary, to the nearest whole multiple of 0.000000001%) (i) the numerator of which shall be the principal amount outstanding under Conventional Loans made to the Company by such Lender at such time and (ii) the denominator of which shall be the aggregate principal amount outstanding under all Conventional Loans made to the Company by all Lenders at such time.

“Pro Forma Consolidated Operating Cash Flow” shall mean Consolidated Operating Cash Flow, excluding therefrom all Consolidated Operating Cash Flow attributable to any Property sold or otherwise disposed of other than in the ordinary course of business during any applicable four fiscal quarter period in question as if such Property were not owned at any time during such period, and including therein all Consolidated Operating Cash Flow attributable to any Property acquired other than in the ordinary course of business during any applicable four fiscal quarter period in question as if such Property were at all times owned during such period.

“Property” shall mean all types of real and personal property, whether tangible, intangible or mixed.

“Quarterly Date” shall mean the last day of each March, June, September and December, beginning with June 30, 2004, or if any such date is not a Business Day, the respective Quarterly Date shall be the next succeeding Business Day.

“Reference Lenders”, and individually “Reference Lender”, shall mean JPMCB, Bank of America, N.A. and Wachovia Bank, N.A.

“Register” shall have the meaning specified in Section 13.07(f) hereof.

“Regulation D” shall mean Regulation D of the Board of Governors of the Federal Reserve System.

“Related Parties” shall mean, with respect to any specified Person, such Person’s Affiliates and the respective directors, officers, employees, agents and advisors of such Person and such Person’s Affiliates.

“Required Prepayment Date” shall have the meaning specified in Section 2.01(f)(i) hereof.

“Restricted Payment” shall have the meaning set forth in Section 9.03.

“Restricted Subsidiary” shall mean each Subsidiary other than those identified as Unrestricted Subsidiaries in Exhibit 6.01; provided, however, that a Restricted Subsidiary may be designated by the Company as an Unrestricted Subsidiary or an Unrestricted Subsidiary may be redesignated by the Company as a Restricted Subsidiary if immediately after giving effect to such designation no Default or Event of Default shall have occurred and be continuing, and the Company shall promptly deliver to the Administrative Agent notice of any such designation or redesignation; provided further that after the initial designation of an Unrestricted Subsidiary by the Company at any time, only three further redesignations of such Subsidiary shall be permitted.

“Revolving Credit Loans” shall mean Loans made under Section 2.01(a).

“S&P” shall mean Standard and Poor’s Ratings Group.

“SPC” shall have the meaning specified in Section 13.07(d).

“Subsidiary” shall mean any Person of which more than 50% of the outstanding shares, having voting power under ordinary circumstances to elect a majority of the Board of Directors or other governing body of such Person, shall at the time be owned, directly or indirectly, by the Company, by any one or more Subsidiaries, or by the Company and one or more Subsidiaries.

“Taxes” shall mean all present or future taxes, levies, imposts, duties, deductions, withholdings, assessments, fees or other charges imposed by any governmental authority, including any interest, additions to tax or penalties applicable thereto.

“Termination Date” shall mean June 4, 2009.

“Unrestricted Subsidiary” shall mean any Subsidiary so designated in accordance with the terms of this Agreement, and shall include any subsidiary of any Subsidiary so designated.

“Wholly Owned”, when used with respect to a Subsidiary, shall mean the beneficial ownership by the Company of 100% of the equity securities of such Subsidiary.

SECTION 1.02. Terms Generally. The definitions of terms herein shall apply equally to the singular and plural forms of the terms defined. Whenever the context may require, any pronoun shall include the corresponding masculine, feminine and neuter forms. The words “include”, “includes” and “including” shall be deemed to be followed by the phrase “without limitation”. The word “will” shall be construed to have the same meaning and effect as the word “shall”. Unless the context requires otherwise, (a) any definition of or reference to any agreement, instrument or other document herein shall be construed as referring to such agreement, instrument or other document as from time to time amended, supplemented or otherwise modified (subject to any restrictions on such amendments, supplements or modifications set forth herein), (b) any reference herein to any Person shall be construed to include such Person’s successors and assigns, (c) the words “herein”, “hereof” and “hereunder”, and words of similar import, shall be construed to refer to this Agreement in its entirety and not to any particular provision hereof, (d) all references herein to Articles, Sections and Exhibits shall be construed to refer to Articles and Sections of, and Exhibits to, this Agreement and (e) the words “asset” and “property” shall be construed to have the same meaning and effect and to refer to any and all tangible and intangible assets and properties, including real and personal property, cash, securities, accounts and contract rights.

SECTION 1.03. Accounting Terms; GAAP. Except as otherwise expressly provided herein, all terms of an accounting nature shall be construed in accordance with GAAP, as in effect from time to time; provided that, if the Company notifies the Administrative Agent that the Company requests an amendment to any provision hereof to eliminate the effect of any change occurring after the date hereof in GAAP or in the application thereof on the operation of such provision (or if the Administrative Agent notifies the Company that the Majority Lenders request an amendment to any provision hereof for such purpose), regardless of whether any such notice is given before or after such change in GAAP or in the application thereof, then such provision shall be interpreted on the basis of GAAP as in effect and applied immediately before such change shall have become effective until such notice shall have been withdrawn or such provision amended in accordance herewith.

ARTICLE II

The Loans

SECTION 2.01. Revolving Credit Loans.

(a) Conventional Loan Commitment. Subject to and upon the terms and conditions set forth in this Agreement, each Lender severally agrees to make Conventional Loans to the Company on any one or more Business Days on or after the date hereof and prior to the Termination Date, up to an aggregate principal amount of Conventional Loans not exceeding at any one time outstanding an amount equal to such Lender’s Commitment, less the principal amount outstanding at such time of all Discretionary Loans made to the Company by such Lender and the LC Exposure of such

Lender at such time, if any; provided, however, in no event shall the aggregate outstanding principal amount of Conventional Loans, Discretionary Loans and the aggregate LC Exposure ever exceed $500,000,000, as such amount may be reduced pursuant to the terms of this Agreement. Each Conventional Borrowing shall be in an aggregate amount of not less than $3,000,000 and an integral multiple of $250,000. Subject to the foregoing, each Conventional Borrowing shall be made simultaneously from the Lenders according to their Borrowing Pro Rata Share of the principal amount requested for each Conventional Borrowing and shall consist of Conventional Loans of the same type (e.g., Alternate Base Rate Loans, Federal Funds Rate Loans, CD Rate Loans or Eurodollar Loans) with the same Interest Period from each Lender. Within such limits and during such period, the Company may borrow, repay and reborrow under this Section 2.01(a).

(b) Repayment of Conventional Loans. The Company hereby unconditionally promises to pay to the Administrative Agent for the account of each Lender the then unpaid principal amount of each Conventional Loan on the Termination Date.

(c) Conventional Borrowing Procedures; Delivery of Proceeds; Recordation of Loans. (i) Each Conventional Borrowing under this Section 2.01 shall be made on at least, (A) in the case of a Conventional Borrowing consisting of Alternate Base Rate Loans or Federal Funds Rate Loans, prior oral or written notice from the Company to the Administrative Agent by 10:00 a.m. (New York, New York time) on the same day as the requested borrowing (and the Administrative Agent shall prior to 12:00 noon (New York, New York time) provide oral or written notice of the requested borrowing to the Lenders, (B) in the case of a Conventional Borrowing consisting of CD Rate Loans, one Business Day’s prior written or oral notice from the Company to the Administrative Agent by 10:00 a.m. (New York, New York time) and (C) in the case of a Conventional Borrowing consisting of Eurodollar Loans, three Business Days’ prior written or oral notice from the Company to the Administrative Agent by 10:00 a.m. (New York, New York time) (and the Administrative Agent shall, in the case of (B) and (C) above, upon receipt of such notice provide to each Lender prior oral or written notice by 11:30 a.m. (New York, New York time) on the date such notice is received by the Administrative Agent) (“Notice of Conventional Borrowing”); provided, however, that with respect to each oral Notice of Conventional Borrowing, the Company shall deliver promptly to the Administrative Agent a confirmatory written Notice of Conventional Borrowing. Each Notice of Conventional Borrowing shall be irrevocable and shall (A) specify (v) the total principal amount of the proposed Conventional Borrowing, (w) whether the Conventional Borrowing will be comprised of CD Rate Loans, Alternate Base Rate Loans, Federal Funds Rate Loans or Eurodollar Loans, (x) the applicable Interest Period (if any) for such Loans (which may not extend beyond the Termination Date), (y) the Borrowing Date and (z) the bank account into which the funds with respect to such Conventional Borrowing shall be deposited, and (B) certify to the calculations demonstrating that the sum of the aggregate outstanding principal amount of Loans and the aggregate LC Exposure, after giving effect to such Conventional Borrowing, does not exceed the Commitments. If no election as to the type of Conventional Borrowing is specified, then the requested Conventional Borrowing shall consist of Alternate Base

Rate Loans. If no Interest Period is specified with respect to any Conventional Borrowing consisting of CD Loans or Eurodollar Loans, then the Company shall be deemed to have selected the shortest permitted Interest Period. The Administrative Agent shall promptly give like notice to the other Lenders, and on the Borrowing Date each Lender shall make its share of the Conventional Borrowing available at the principal banking office of the Administrative Agent, 270 Park Avenue, New York, New York 10017, no later than 2:00 p.m. (New York, New York time) in immediately available funds.

(ii) The Administrative Agent shall pay or deliver the proceeds of each Borrowing to or upon the order of the Company. Each Lender shall keep accurate records as to the Loans made by it, including (A) the date and principal amount of each Loan, (B) the rate of interest applicable to such Loan, and (C) each payment of principal thereon; provided, however, that the failure of such Lender to record such amounts, dates and rates shall not diminish or impair the Company’s obligation to repay all principal advanced and to pay all interest accruing under its Revolving Credit Loan in accordance with the terms hereof.

(d) Substitute Rate. Anything in this Agreement to the contrary notwithstanding, if at any time prior to the determination of the rate with respect to any proposed Revolving Credit Loan (i) the Majority Lenders in their discretion shall determine with respect to Eurodollar Loans to be made or continued by them on the applicable Borrowing Date or continuation date or, with respect to other Conventional Loans to be converted to Eurodollar Loans, on the applicable conversion date, that there is a reasonable probability that Dollar deposits will not be offered to such Lenders in the interbank eurodollar market for a period of time equal to the applicable Interest Period in amounts equal to the amount of each such Lender’s Eurodollar Loan in Dollars or that the Eurodollar Rate does not reflect the cost of funding by the Lenders or that adequate and fair means do not exist to be able to determine the Eurodollar Rate, or (ii) the Administrative Agent in its discretion shall determine with respect to CD Rate Loans to be made by the Lenders on the applicable Borrowing Date of such proposed Revolving Credit Loan that bid rates will not be provided by certificate of deposit dealers of recognized standing for the purchase at face value of certificates of deposit of the Reference Lenders for a period of time equal to the applicable Interest Period in amounts approximately equal or comparable to the aggregate principal amount of such Loans with a maturity equal to the applicable Interest Period, then:

(A) the Majority Lenders (acting through the Administrative Agent) or the Administrative Agent, as the case may be, shall give the Company notice thereof; and

(B) Alternate Base Rate Loans or Federal Funds Rate Loans, as selected by the Company in accordance with Section 2.01(c) (or, if the Company does not provide timely notice of its selection, Alternate Base Rate Loans) shall be made in lieu of any Eurodollar Loans or CD Rate Loans, as the case may be, that were to have been made at such time.

(e) Interest. The Revolving Credit Loans shall bear interest as follows:

(i) Each CD Rate Loan shall be made in Dollars and shall bear interest on the unpaid principal amount thereof from time to time outstanding at a rate per annum (for the actual number of days elapsed, based on a year of 360 days) which shall be equal to the lesser of (A) the CD Rate plus the applicable Margin Percentage, or (B) the Highest Lawful Rate.

(ii) Each Alternate Base Rate Loan shall be made in Dollars and shall bear interest on the unpaid principal amount thereof from time to time outstanding at a rate per annum (for the actual number of days elapsed, based on a year of 365 or 366 days, as the case may be) which shall be equal to the lesser of (A) the Alternate Base Rate, or (B) the Highest Lawful Rate.

(iii) Each Eurodollar Loan shall be made in Dollars and shall bear interest on the unpaid principal amount thereof from time to time outstanding at a rate per annum (for the actual number of days elapsed, based on a year of 360 days) which shall be equal to the lesser of (A) the Eurodollar Rate plus the applicable Margin Percentage, or (B) the Highest Lawful Rate.

(iv) Each Federal Funds Rate Loan shall be made in Dollars and shall bear interest on the unpaid principal amount thereof from time to time outstanding at a rate per annum (for the actual number of days elapsed, based on a year of 360 days) which shall be equal to the lesser of (A) the Federal Funds Borrowing Rate plus the applicable Margin Percentage, or (B) the Highest Lawful Rate.

(v) Interest on the outstanding principal of each Loan shall accrue from and including the Borrowing Date for such Loan to but excluding the date such Loan is paid in full and shall be due and payable (A) on the Interest Payment Date for each CD Rate Loan or Eurodollar Loan and on each Quarterly Date for each Alternate Base Rate Loan or Federal Funds Rate Loan, (B) as to any Eurodollar Loan having an Interest Period greater than three months, at the end of the third month of the Interest Period for such Loan, (C) as to any CD Rate Loan having an Interest Period greater than 90 days, on the 90th day of the Interest Period for such Loan, and (D) as to all Loans, at maturity, whether by acceleration or otherwise, or after notice of prepayment in accordance with Section 2.01(f)(i) or Section 3.01(c) hereof, on and after the Required Prepayment Date or the applicable prepayment date, as the case may be, as specified in such notice.

(vi) Past due principal, pursuant to acceleration, the Company’s failure to make a prepayment on the date specified in the applicable prepayment notice or otherwise, and to the extent permitted by applicable law, past due interest and (after the occurrence of an Event of Default) past due fees, pursuant to acceleration or otherwise, shall bear interest from their respective due dates, until paid, at the Default Rate.

(f) Change of Law.

(i) Anything in this Agreement to the contrary notwithstanding, if at any time any Lender in good faith determines (which determination shall be conclusive absent manifest error) that any change after the date hereof in any applicable law, rule or regulation or in the interpretation or administration thereof makes it unlawful, or any central bank or other governmental authority asserts that it is unlawful (any of the above being described as a “Eurodollar Event”), for such Lender or its foreign branch or branches to maintain or fund any Loan by means of Dollar deposits obtained in the interbank eurodollar market, then, at the option of such Lender (to the extent practicable, after consultation with the Company as to its preference and after making a reasonable effort to give effect to such preference) , the aggregate principal amount of each of such Lender’s Eurodollar Loans then outstanding, which Loans are directly affected by such Eurodollar Event shall either (x) be prepaid or (y) be converted to a Loan of another type that is not so directly affected by such Eurodollar Event. Any remaining obligation of such Lender hereunder to make Eurodollar Loans (but not Federal Funds Rate Loans, CD Rate Loans or Alternate Base Rate Loans), shall be suspended for so long as such Eurodollar Event shall continue. Upon the occurrence of any Eurodollar Event, and at any time thereafter so long as such Eurodollar Event shall continue, such Lender may exercise its aforesaid option by giving written notice thereof to the Administrative Agent and the Company. Any prepayment of any Eurodollar Loan which is required under this Section 2.01(f) shall be made, together with accrued and unpaid interest and all other amounts payable to such Lender under this Agreement with respect to such prepaid Loan (including, without limitation, amounts payable pursuant to Section 2.01(g)), on the date stated in the notice to the Company referred to above, which date (“Required Prepayment Date”) shall be not less than 15 days (or such earlier date as shall be necessary to comply with the relevant law, rule or regulation) from the date of such notice. If any Eurodollar Loan is required to be prepaid under this Section 2.01(f), the Lenders agree that at the written request of the Company, the Lender that has made such Eurodollar Loan shall make a Loan of another type, as selected by the Company, that, in each case, is not so directly affected by such Eurodollar Event on the Required Prepayment Date to the Company in the same principal amount as the Eurodollar Loan of such Lender being so prepaid. Any such written request by the Company for Alternate Base Rate Loans or CD Rate Loans under this Section 2.01(f) shall be irrevocable and, in order to be effective, must be delivered to the Administrative Agent not less than one Business Day prior to the Required Prepayment Date.

(ii) Notwithstanding the foregoing, in the event the Company is required to pay to any Lender amounts with respect to any Borrowing pursuant to Section 2.01(f)(i) other than a Discretionary Borrowing, the Company may give notice to such Lender (with copies to the Administrative Agent) that it wishes to seek one or more assignees (which may be one or more of the Lenders) to assume the Commitment of such Lender and to purchase its outstanding Loans and the Administrative Agent will use its best efforts to assist the Company in obtaining an assignee; provided that if more than one Lender requests that the Company pay substantially and proportionately equal additional amounts under Section 2.01(f)(i) and the Company elects to seek an assignee to assume the Commitments of any of such affected Lenders, the Company must seek an

assignee or assignees to assume the Commitments of all of such affected Lenders. Each Lender requesting compensation pursuant to Section 2.01(f)(i) agrees to sell its Commitment, Loans and interest in this Agreement in accordance with Section 13.07 to any such assignee for an amount equal to the sum of the outstanding unpaid principal of and accrued interest on such Loans, plus all other fees and amounts (including, without limitation, any compensation claimed by such Lender under Section 2.01(f)(i) and Section 2.01(g)) due such Lender hereunder calculated, in each case, to the date such Commitment, Loans and interest are purchased. Upon such sale or prepayment, each such Lender shall have no further Commitment or other obligation to the Company hereunder.

(g) Fundings and Exchange Losses. In the event of (i) any payment or prepayment (whether authorized or required hereunder pursuant to acceleration or otherwise) or conversion of all or a portion of any CD Rate Loan or Eurodollar Loan on a day other than the last day of the Interest Period therefor, (ii) any failure to make, prepay, continue or convert a Borrowing consisting of any CD Rate Loan or Eurodollar Loan after the delivery of the Notice of Conventional Borrowing, Interest Election Request or notice of prepayment, as the case may be, for such CD Rate Loan or Eurodollar Loan on the applicable Borrowing Date or continuation, conversion or prepayment date therefor, (iii) the failure of any Loan to be made by any Lender due to any condition precedent to a Loan not being satisfied or as a result of this Section 2.01 or due to any other action or inaction of the Company, or (iv) the assignment of any CD Rate Loan or Eurodollar Loan on a day other than the last day of the Interest Period therefor as a result of a request by the Company, the Company shall pay to each affected Lender upon its request made on or before 45 days after the occurrence of any such event, acting through the Administrative Agent, such amount or amounts (to the extent such amount or amounts would not be usurious under applicable law) as may be necessary to compensate such Lender for any direct costs and losses incurred by such Lender (including, without limitation, such amount or amounts as will compensate it for the amount by which the rate of interest that would have accrued on such Loan had such event not occurred, at the Eurodollar Rate or CD Rate, as the case may be, for the period from the date of such prepayment to the end of the then current Interest Period therefor (or, in the case of a failure to borrow, convert or continue, the Interest Period that would have begun on the date of such failure), exceeds the rate of interest that would accrue for such period at the interest rate which such Lender would bid, at the beginning of such period, for deposits of a comparable amount and period from lenders in the relevant eurodollar or domestic certificate of deposit market, all as determined by such Lender in its good faith discretion), but otherwise without penalty. Any such claim by a Lender for compensation shall be made through the Administrative Agent and shall be accompanied by a certificate signed by an officer of such Lender authorized to so act on behalf of such Lender, setting forth in reasonable detail the computation upon which such claim is based. The obligations of the Company under this Section 2.01(g) shall survive the termination of this Agreement.

(h) Increased Costs - Taxes, Reserve Requirements, Etc.

(i) The Company for and on behalf of each Lender (including without limitation the Issuing Lender) shall pay or cause to be paid directly to the appropriate governmental authority or shall reimburse or compensate each Lender upon demand by such Lender in good faith, acting through the Administrative Agent, for all costs incurred, losses suffered or payments made, as determined by such Lender, by reason of any and all present or future Taxes (including, without limitation, any interest equalization tax or any similar tax on the acquisition of debt obligations), whether or not such Taxes were correctly or legally asserted, on or with regard to any aspect of the transactions with respect to this Agreement, the Loans and the Letters of Credit (except for (i) Excluded Taxes and (ii) Indemnified Taxes or Other Taxes paid pursuant to Section 2.01(h)(ii), Section 2.02 or Section 2.03).

(ii) The Company shall pay immediately upon demand by any Lender (including without limitation the Issuing Lender), acting through the Administrative Agent, any Other Taxes in connection with any Loans, Letters of Credit or this Agreement or in connection with the enforcement hereof or thereof; provided that the Company shall not be required to pay any such Other Taxes on behalf of any Lender that (i) becomes a party to this Agreement by assignment pursuant to Section 13.07 or (ii) designates a new Lending Office, in each case to the extent such Other Taxes are imposed at the time such Lender becomes a party to this Agreement or designates a new Lending Office in an amount greater than the amount the assignor or such Lender was entitled to at the time of the assignment or designation.

(iii) If any Lender or the Administrative Agent receives a refund in respect of Taxes for which such Lender or the Administrative Agent has received payment from the Company hereunder, it shall promptly notify the Company of such refund and shall, within 30 days after receipt of such refund, if no Event of Default has occurred, repay such refund to the Company with interest if any interest is received thereon by such Lender or the Administrative Agent; provided, that if an Event of Default has occurred and is continuing, such refund shall be applied to the outstanding Loans or paid to the Company once such Event of Default no longer exists; provided further, that the Company, upon the request of such Lender or the Administrative Agent, agrees to return such refund (plus penalties, interest or other charges) to such Lender or the Administrative Agent in the event such Lender or the Administrative Agent is required to repay such refund.

(iv) (A) The Company shall reimburse or compensate each Lender upon demand by such Lender, acting through the Administrative Agent, for all costs incurred, losses suffered or payments made in connection with any CD Rate Loans, Eurodollar Loans, or any part thereof which costs, losses or payments are a result of any future reserve, special deposit or similar requirement against assets of, liabilities of, deposits with or for the account of, or Loans by such Lender imposed on such Lender, its foreign lending branch, or the interbank eurodollar market by any regulatory authority, central bank or other governmental authority, whether or not having the force of law, including, without limitation, Regulation D.

(B) If as a result of (y) the introduction of or any change in or in the interpretation or administration of any law or regulation after the date hereof or (z) the compliance with any request made after the date hereof from any central bank or other governmental authority (whether or not having the force of law), there shall be any increase in the cost to any Lender of agreeing to make or making, funding or maintaining Loans, or issuing Letters of Credit or acquiring or holding participations in Letters of Credit, for which such Lender shall not have been reimbursed pursuant to the provisions of clause (A) above (other than any such increase in costs resulting from Taxes, as to which Sections 2.01(h)(i)-(ii) and 2.02 shall govern), then the Company shall from time to time, upon demand by such Lender, acting through the Administrative Agent, pay to such Lender additional amounts sufficient to indemnify such Lender against the full amount of such increased cost.

(C) Any Lender claiming reimbursement or compensation under this Section 2.01(h)(iv) shall make its demand on or before 45 days after the end of each Interest Period during which any such cost is incurred, loss is suffered or payment is made and shall provide the Administrative Agent, which in turn shall provide the Company, with a written statement in reasonable detail the calculation of the amount and basis of its request, which statement, subject to Section 2.01(i), shall be conclusive absent manifest error; provided that in the event any reimbursement or compensation demanded by a Lender under this Section 2.01(h) is a result of reserves actually maintained pursuant to the requirements imposed by Regulation D with respect to “Eurocurrency liabilities” (as defined or within the meaning of such Regulation), such demand shall be accompanied by a statement of such Lender in the form of Exhibit 2.01(h)(iv) attached hereto, which statement shall be conclusive and binding on the Company, subject to Section 2.01(i), except in the case of manifest error. No Lender may request reimbursement or compensation under this Section 2.01(h)(iv) for any period prior to the period for which demand has been made in accordance with the foregoing sentence. In preparing any statement delivered under this Section 2.01(h)(iv), such Lender may employ such assumptions and allocation of costs and expenses as it shall in good faith deem reasonable and may be determined by any reasonable averaging and attribution method. So long as any notice requirement provided for herein has been satisfied, any decision by the Administrative Agent or any Lender not to require payment of any interest, cost or other amount payable under this Section 2.01(h)(iv), or to calculate any amount payable by a particular method, on any occasion, shall in no way limit or be deemed a waiver of the Administrative Agent’s or such Lender’s right to require full payment of any interest, cost or other amount payable hereunder, or to calculate any amount payable by another method, on any other or subsequent occasion for a subsequent Interest Period.

(v) If any Lender shall have determined in good faith that any applicable law, rule, regulation or guideline regarding capital adequacy (each, a “Capital Adequacy Pronouncement”) adopted after the date hereof, or any change after the date hereof in any Capital Adequacy Pronouncement now or hereafter in effect, or any change after the date hereof in the interpretation or administration of any Capital Adequacy Pronouncement now or hereafter in effect by any governmental authority, central bank or comparable agency charged with the interpretation or administration thereof, or

compliance by any Lender (or any Lending Office of such Lender) with any request or directive regarding capital adequacy (whether or not having the force of law) made after the date hereof of any such governmental authority, central bank or comparable agency has the effect of reducing the rate of return on such Lender’s capital or the capital of any Person controlling such Lender as a consequence of its obligations hereunder to a level below that which such Lender would have achieved as a consequence of its obligations hereunder but for such adoption, change or compliance (taking into consideration such Lender’s policies with respect to capital adequacy) by an amount deemed in good faith by such Lender to be material, then from time to time, upon notice by the Lender requesting (through the Administrative Agent) compensation, under this Section 2.01(h)(v) within 90 days after such Lender has obtained knowledge of such event, the Company shall pay to the Administrative Agent for the account of such Lender such additional amount or amounts as will compensate such Lender for such reduction. Any such claim by a Lender for compensation shall be made through the Administrative Agent and shall be accompanied by a certificate signed by an officer of such Lender authorized to so act on behalf of such Lender setting forth in reasonable detail the calculation upon which such claim is based.

(vi) Notwithstanding the foregoing, in the event the Company is required to pay to any Lender amounts pursuant to Section 2.01(h)(i)-(ii), 2.01(h)(iv)-(v) or Section 2.02, the Company may give notice to such Lender (with copies to the Administrative Agent) that it wishes to seek one or more assignees (which may be one or more of the Lenders) to assume the Commitment of such Lender and to purchase its outstanding Loans and participations in Letters of Credit and the Administrative Agent will use its best efforts to assist the Company in obtaining an assignee; provided that if more than one Lender requests that the Company pay substantially and proportionately equal additional amounts under Section 2.01(h) or Section 2.02 and the Company elects to seek an assignee to assume the Commitments of any of such affected Lenders, the Company must seek an assignee or assignees to assume the Commitments of all of such affected Lenders. Each Lender requesting compensation pursuant to Section 2.01(h)(i), Section 2.01(h)(ii), Section 2.01(h)(iv), Section 2.01(h)(v) or Section 2.02 agrees to sell its Commitment, its outstanding Loans and participations in Letters of Credit and interest in this Agreement in accordance with Section 13.07 to any such assignee for an amount equal to the sum of the outstanding unpaid principal of and accrued interest on such Loans, plus all other fees and amounts (including, without limitation, any compensation claimed by such Lender under Section 2.01(g) or Section 2.02) due such Lender hereunder calculated, in each case, to the date such Commitment, Loans and interest are purchased. Upon such sale or prepayment, each such Lender shall have no further Commitment or other obligation to the Company hereunder.

(vii) Any Lender claiming any amounts pursuant to this Section 2.01(h) or Section 2.02 shall use its reasonable good faith efforts (consistent with its internal policies and legal and regulatory restrictions) to avoid or minimize the payment by the Company of any amounts under this Section 2.01(h) or Section 2.02, including changing the jurisdiction of its Lending Office; provided that no such change or action shall be required to be made or taken if, in the reasonable judgment of such Lender, such change would be materially disadvantageous to such Lender.

(viii) The aggregate amount payable, reimbursable or compensable by the Company to or for the account of a Lender under this Section 2.01(h) shall not include any cost covered by the amount received by such Lender from the Company through the Administrative Agent in connection with the calculation of the CD Rate. The Company agrees to indemnify and hold the Administrative Agent and each Lender harmless from and against any and all liabilities with respect to or resulting from any delay in the payment or omission to pay such amounts. The obligations of the Company under this Section 2.01(h) created in accordance with this Section 2.01(h) shall survive the termination of the Commitments and/or this Agreement.

(i) Calculation Errors. Each calculation by the Administrative Agent or any Lender with respect to amounts owing or to be owing by the Company pursuant to this Agreement or any Loan or Letter of Credit shall be conclusive except in the case of error. In the event the Administrative Agent determines in good faith within a reasonable time that any such error shall have occurred in connection with the determination of the applicable interest rate for any Loan or Letter of Credit which results in the Company paying either more or less than the amount which would have been due and payable but for such error, then (i) any Lender that received an overpayment shall promptly refund such overpayment to the Company and (ii) if any Lender received an underpayment, the Company shall promptly pay to such Lender the amount of such underpayment. In the event it is determined within a reasonable time that any Lender, acting through the Administrative Agent, has miscalculated any amount for which it has demanded reimbursement or compensation from the Company in respect of amounts owing by the Company other than interest which results in the Company paying more or less than the amount which would have been due and payable but for such error, such Lender or the Company, as the case may be, shall promptly refund or pay, as the case may be, to the other the full amount of such overpayment or underpayment. In the event it is determined within a reasonable time that the Company has miscalculated the Commitment Fees due under Section 4.03, which results in the Company paying more or less than the amount which would have been due and payable but for such error, (x) any Lender that received an overpayment shall promptly refund such overpayment to the Company and (y) if any Lender received an underpayment, the Company shall promptly pay to such Lender the amount of such underpayment. Any party making a request for payment pursuant to this Section 2.01(i) shall provide with such request a statement in reasonable detail showing the calculation of the amount requested.

SECTION 2.02. Setoff, Counterclaims and Taxes. All payments (whether of principal, interest, fees, reimbursements or otherwise) under this Agreement shall be made by the Company without setoff or counterclaim and shall be made free and clear of and without deduction (except as specifically provided in Section 2.03) for any Taxes now or hereafter imposed, other than for Excluded Taxes. Except as specifically provided in Section 2.03, if the Company shall be required by applicable law to deduct or withhold from any such payment any such Taxes (other than Excluded Taxes), then the Company shall (i) notwithstanding anything to the contrary in this Agreement, deduct or withhold an amount equal to such Tax from the amounts payable under this Agreement, (ii) make such Tax payment as so required to the relevant governmental authority in accordance with applicable law, and (iii) provided that such Lender has complied with

the requirements of Section 2.03, pay to the Administrative Agent for the account of such Lender, on the date of each such payment, such additional amount as may be necessary in order that the net amount received by such Lender after such deduction or withholding (including any deduction or withholding applicable to additional amounts payable under this Section 2.02) shall equal the amount which would have been received if such deduction or withholding were not required. The Company shall confirm that all applicable Taxes (other than Excluded Taxes), if any, imposed on this Agreement or transactions hereunder shall have been properly and legally paid by it to the appropriate taxing authorities by sending official Tax receipts or notarized copies of such receipts to the Administrative Agent within 30 calendar days after payment of any applicable Tax, to the extent such receipts are issued therefor, or other written proof of payment thereof that is reasonably satisfactory to the Administrative Agent. Upon request of any Lender, the Administrative Agent shall forward to such Lender a copy of such official receipt or a copy of such notarized copy of such receipt or other written proof of payment.

SECTION 2.03. Withholding Tax Exemption.

(a) To the extent not previously delivered, at least five Business Days prior to the first date on which interest or fees are payable hereunder to the Lenders in the case of each Lender that is listed on the signature pages of this Agreement, and on the later of such date and the date of the assignment pursuant to Section 13.07 pursuant to which it becomes a Lender in the case of each other Lender, and from time to time thereafter as reasonably requested in writing by the Company (but only so long thereafter as such Lender remains lawfully able to do so):

(i) each Lender that is a “United States person” that is not a “domestic” corporation (as such terms are defined in Section 7701(a)(30) of the Code) shall provide each of the Administrative Agent and the Company with an original Internal Revenue Service Form W-9, or any successor or other form prescribed by the Internal Revenue Service, properly completed and duly executed under penalties of perjury; and

(ii) each Lender that is a Foreign Lender shall provide each of the Administrative Agent and the Company with either:

(A) an original Internal Revenue Service Form W-8BEN, W-8IMY or W-8ECI, as appropriate, or any successor or other form prescribed by the Internal Revenue Service, properly completed and duly executed under penalties of perjury, certifying that such Lender is exempt or entitled to a zero (0) rate of United States withholding tax on payments pursuant to this Agreement, or

(B) a certificate, duly executed under penalties of perjury, that it is not (I) a “bank” (within the meaning of Section 881(c)(3)(A)of the Code), (II) a “ten-percent shareholder” (within the meaning of Section 871(h)(3)(B) of the Code) of the Company, or (III) a “controlled foreign corporation” related to the Company (within the meaning of Section

864(d)(4) of the Code), and an original Internal Revenue Service Form W-8BEN or Form W-8IMY, as appropriate, or any successor or other form prescribed by the Internal Revenue Service, properly completed and duly executed under penalties of perjury, certifying that such Lender is exempt from United States withholding tax on payments pursuant to this Agreement.

(b) Each Lender shall deliver such new forms and documents prescribed by the Internal Revenue Service upon the expiration or obsolescence of any previously delivered forms or other documents referred to in Section 2.03(a), or after the occurrence of any event requiring a change in the most recent forms or other documents delivered by such Lender. Such Lender shall promptly provide written notice to each of the Administrative Agent and the Company at any time it determines that it is no longer in a position to provide any previously delivered form or other document (or any other form of certification adopted by the Internal Revenue Service for such purpose).

(c) In no event will any withholding by the Company on any interest payable to any Lender as contemplated by this Section 2.03 give rise to a Default under Section 10.01 with respect to payments of interest.

SECTION 2.04. Discretionary Loans.

(a) Each Lender may, in its sole discretion and on terms and conditions satisfactory to it and the Company that are not inconsistent with the provisions of this Agreement, make additional Loans to the Company under its Commitment in Dollars, on any one or more Business Days on or after the date hereof and prior to the Termination Date (“Discretionary Loans”), which Loans will be payable to the appropriate Lender upon such terms and conditions; provided, however, that the Company will not permit to remain outstanding any Discretionary Loans from any Lender, and no Lender will make any Discretionary Loans to the Company, if the aggregate principal amount of the Discretionary Loans and Conventional Loans payable to such Lender, together with such Lender’s LC Exposure at such time, exceeds such Lender’s Commitment. Should any Discretionary Loan be outstanding from any Lender on a date on which a Conventional Borrowing is to be made, such Conventional Borrowing shall be made available only if the Company has paid or shall simultaneously with the making of such Conventional Loan pay such portions of Discretionary Loans (including, without limitation, the payment of the amount of any losses payable pursuant to Section 2.01(g) actually incurred by such Lender as a result of such prepayment) as shall be necessary to make available a portion of each Lender’s Commitment at least equal to such Lender’s share of such Conventional Borrowing. No Discretionary Loan shall have a maturity, final payment date or interest period that extends beyond the Termination Date. Each Lender shall maintain in accordance with its usual practice an account or accounts evidencing the indebtedness to such Lender resulting from each Discretionary Loan made by such Lender. The entries made in the accounts maintained pursuant to this Section 2.04(a) shall be prima facie evidence of the existence and amounts of the obligations therein recorded; provided, however, that the failure of any Lender to maintain such accounts or any error therein shall not in any manner affect the obligation of the Company to repay

the Discretionary Loans in accordance with their terms. The Company hereby unconditionally promises to pay to each Lender the then unpaid principal amount of each Discretionary Loan made by such Lender on the earlier of the Termination Date and the date on which such principal amount is due pursuant to the terms of such Discretionary Loan.

(b) Promptly upon written request of the Administrative Agent, each Lender will certify in writing the Borrowing Date, principal amount and maturity date of any Discretionary Loans made during any period for which the Commitment Fee under Section 4.03 is to be calculated. The Company agrees to certify to the Administrative Agent on or before each Quarterly Date the Borrowing Date, principal amount, maturity date and lending Lender for all Discretionary Loans made during any period for which the Commitment Fee under Section 4.03 is to be calculated.

SECTION 2.05. Interest Election. (a) Each Conventional Borrowing initially shall be of the type specified in the applicable Notice of Conventional Borrowing and, in the case of a Conventional Borrowing consisting of CD Rate Loans or, Eurodollar Loans shall have an initial Interest Period as specified in such Notice of Conventional Borrowing. Thereafter, the Company may elect to convert such Conventional Borrowing to a different type or to continue such Conventional Borrowing and, in the case of a Conventional Borrowing consisting of CD Rate Loans or, Eurodollar Loans, may elect Interest Periods therefor, all as provided in this Section 2.05. The Company may elect different options with respect to different portions of the affected Conventional Borrowing, in which case each such portion shall be allocated ratably among the Lenders holding the Loans comprising such Conventional Borrowing, and the Loans comprising each such portion shall be considered a separate Conventional Borrowing. This Section 2.05 shall not apply to Discretionary Borrowings.

(b) To make an election pursuant to this Section 2.05, the Company shall notify the Administrative Agent of such election by telephone by the time that a notice of borrowing would be required under the applicable provisions of Section 2.01 if the Company were requesting the advancement of new funds of the same type resulting from such election to be made on the effective date of such election. Each such telephonic election shall be irrevocable and shall be confirmed promptly by hand delivery or telecopy to the Administrative Agent of a written Interest Election Request in a form approved by the Administrative Agent and signed by the Company.

(c) Each telephonic and written Interest Election Request shall specify the following information in compliance with Section 2.01:

(i) the Borrowing to which such Interest Election Request applies and, if different options are being elected with respect to different portions thereof, the portions thereof to be allocated to each resulting Borrowing (in which case the information to be specified pursuant to clauses (iii) and (iv) below shall be specified for each resulting Borrowing);

(ii) the effective date of the election made pursuant to such Interest Election Request, which shall be a Business Day;

(iii) in the case of a Conventional Borrowing, whether the resulting Borrowing is to be an Alternate Base Rate Loan, a Federal Funds Rate Loan, a CD Rate Loan or a Eurodollar Loan; and

(iv) if the resulting Borrowing is a CD Rate Loan or a Eurodollar Loan, the Interest Period to be applicable thereto after giving effect to such election, which shall be a period contemplated by the definition of the term “Interest Period.”

If any such Interest Election Request requests a CD Rate Loan or a Eurodollar Loan but does not specify an Interest Period, or if the Company fails to deliver a timely Interest Election Request with respect to such a Borrowing prior to the end of the Interest Period applicable thereto, then, unless in the case or such failure to deliver and Interest Rate Election the applicable Loans are repaid, the Company shall be deemed to have selected the shortest possible Interest Period.

(d) Promptly following receipt of an Interest Election Request, the Administrative Agent shall advise each Lender of the details thereof and of such Lender’s portion of each resulting Borrowing.

(e) Notwithstanding any contrary provision hereof, if an Event of Default exists and the Administrative Agent, at the request of the Majority Lenders, so notifies the Company, then, so long as an Event of Default is continuing (i) no outstanding Conventional Borrowing may be converted to or continued as a Eurodollar Loan and (ii) unless repaid, each Eurodollar Loan shall be converted to an Alternate Base Rate Loan at the end of the Interest Period applicable thereto. The foregoing is without prejudice to the other rights and remedies available hereunder upon an Event of Default.

SECTION 2.06. Obligations Several, Not Joint. The obligations of the Lenders hereunder are several and not joint. The failure of any Lender to make the Loan to be made by it as part of any borrowing shall not relieve any other Lender of its obligation to make its Loan on the date of such borrowing, and no Lender shall be responsible for the failure of any other Lender to make the Loan to be made by such other Lender on the date of any borrowing.

SECTION 2.07. Replacement of Lenders. If any Lender requests compensation under Section 2.03, or if the Company is required to pay any additional amount to any Lender or any governmental authority for the account of any Lender pursuant to Section 2.02, or if any Lender defaults in its obligation to fund Loans or issue Letters of Credit hereunder, then the Company may, at its sole expense and effort, upon notice to such Lender and the Administrative Agent, require such Lender to assign and delegate, without recourse (in accordance with and subject to the restrictions contained in Section 13.07), all its interests, rights and obligations under this Agreement to an assignee that shall assume such obligations (which assignee may be another Lender, if a

Lender accepts such assignment); provided that (i) the Company shall have received the prior written consent of the Administrative Agent, which consent shall not be unreasonably withheld and (ii) such Lender shall have received payment of an amount equal to the outstanding principal of its Loans, accrued interest thereon, accrued fees and all other amounts payable to it hereunder, from the assignee or the Company. A Lender shall not be required to make any such assignment and delegation if, prior thereto, as a result of a waiver by such Lender or otherwise, the circumstances entitling the Company to require such assignment and delegation cease to apply.

SECTION 2.08. Letters of Credit. (a) General. Subject to the terms and conditions set forth herein, the Company may request the issuance of Additional Letters of Credit for its own account, in a form reasonably acceptable to the Administrative Agent and the Issuing Lender, at any time and from time to time prior to the date five Business Days prior to the Termination Date. In the event of any inconsistency between the terms and conditions of this Agreement and the terms and conditions of any form of letter of credit application or other agreement submitted by the Company to, or entered into by the Company with, any Issuing Lender relating to any Letter of Credit, the terms and conditions of this Agreement shall control.

(b) Notice of Issuance, Amendment, Renewal, Extension; Certain Conditions. To request the issuance of an Additional Letter of Credit (or the amendment, renewal or extension of an outstanding Letter of Credit), the Company shall hand deliver or telecopy (or transmit by electronic communication, if arrangements for doing so have been approved by the Issuing Lender) to the Issuing Lender and the Administrative Agent (reasonably in advance of the requested date of issuance, amendment, renewal or extension) a notice requesting the issuance of an Additional Letter of Credit, or identifying the Letter of Credit to be amended, renewed or extended, and specifying the date of issuance, amendment, renewal or extension (which shall be a Business Day), the date on which such Letter of Credit is to expire (which shall comply with paragraph (c) of this Section), the amount of such Letter of Credit, the name and address of the beneficiary thereof and such other information as shall be necessary to prepare, amend, renew or extend such Letter of Credit. If requested by the Issuing Lender, the Company also shall submit a letter of credit application on the Issuing Lender’s standard form in connection with any request for an Additional Letter of Credit. A Letter of Credit shall be issued, amended, renewed or extended only if (and upon issuance, amendment, renewal or extension of each Letter of Credit the Company shall be deemed to represent and warrant that), after giving effect to such issuance, amendment, renewal or extension (i) the LC Exposure shall not exceed $50,000,000 and (ii) the sum of (I) the outstanding aggregate principal amount of all Loans and (II) the LC Exposure shall not exceed the aggregate Commitments.

(c) Expiration Date. Each Letter of Credit shall expire at or prior to the earlier of (i) close of business on the date that is five Business Days prior to the Termination Date and (ii) the first anniversary of the date of the issuance (or the most recent extension or renewal) of such Letter of Credit. It is understood that any Letter of Credit may provide for the renewal thereof for additional periods, which shall in no event extend beyond the date referred to in clause (i) above.

(d) Participations. On the date hereof, without further action by any party hereto, the Issuing Lender shall be deemed to have granted to each Lender, and each Lender shall be deemed to have acquired from the Issuing Lender, a participation in each Existing Letter of Credit equal to such Lender’s Applicable Percentage of (i) the aggregate amount available to be drawn thereunder and (ii) the aggregate unpaid amount of any outstanding reimbursement obligations in respect thereof. Such participations shall be on all the same terms and conditions as participations granted in Additional Letters of Credit under the immediately succeeding sentence. By the issuance of an Additional Letter of Credit (or an amendment to a Letter of Credit increasing the amount thereof) and without any further action on the part of the Issuing Lender or the Lenders, the Issuing Lender hereby grants to each Lender, and each Lender hereby acquires from the Issuing Lender, a participation in such Letter of Credit equal to such Lender’s Applicable Percentage of the aggregate amount available to be drawn under such Letter of Credit. In consideration and in furtherance of the foregoing, each Lender hereby absolutely and unconditionally agrees to pay to the Administrative Agent, for the account of the Issuing Lender, such Lender’s Applicable Percentage of each LC Disbursement made by the Issuing Lender and not reimbursed by the Company on the date due as provided in paragraph (e) of this Section, or of any reimbursement payment required to be refunded to the Company for any reason. Each Lender acknowledges and agrees that its obligation to acquire participations pursuant to this paragraph in respect of Letters of Credit is absolute and unconditional and shall not be affected by any circumstance whatsoever, including any amendment, renewal or extension of any Letter of Credit or the occurrence and continuance of a Default or reduction or termination of the Commitments, and that each such payment shall be made without any offset, abatement, withholding or reduction whatsoever.

(e) Reimbursement. If the Issuing Lender shall make any LC Disbursement in respect of a Letter of Credit, the Company shall reimburse such LC Disbursement by paying to the Administrative Agent an amount equal to such LC Disbursement not later than (i) 12:00 noon, New York City time, on the date that such LC Disbursement is made, if the Company shall have received notice of such LC Disbursement prior to 10:00 a.m., New York City time, on such date, or (ii) if such notice has not been received by the Company prior to 10:00 a.m., New York City time, on the date that such LC Disbursement is made, then not later than 12:00 noon, New York City time, on the Business Day immediately following the day that the Company receives such notice; provided that, if such LC Disbursement is not less than the minimum borrowing amount, the Company may, subject to the conditions to borrowing set forth herein, request that such payment be financed with an Alternate Base Rate Loan or Federal Funds Rate Loan in an equivalent amount and, to the extent so financed, the Company’s obligation to make such payment shall be discharged and replaced by the resulting Alternate Base Rate Loan or Federal Funds Rate Loan. If the Company fails to make such payment when due, the Administrative Agent shall notify each Lender of the applicable LC Disbursement, the payment then due from the Company in respect thereof and such Lender’s Applicable Percentage thereof. Promptly following receipt of such notice, each Lender shall pay to the Administrative Agent its Applicable Percentage of the LC Disbursement not reimbursed by the Company, in the same manner as provided in Section 2.01 with respect to Loans made by such Lender (and Section 2.01 shall apply,

mutatis mutandis, to the payment obligations of the Lenders), and the Administrative Agent shall promptly pay to the Issuing Lender the amounts so received by it from the Lenders. Promptly following receipt by the Administrative Agent of any payment from the Company pursuant to this paragraph, the Administrative Agent shall distribute such payment to the Issuing Lender or, to the extent that Lenders have made payments pursuant to this paragraph to reimburse the Issuing Lender, then to such Lenders and the Issuing Lender as their interests may appear. Any payment made by a Lender pursuant to this paragraph to reimburse the Issuing Lender for any LC Disbursement (other than the funding of Alternate Base Rate Loans or Federal Funds Rate Loans as contemplated above) shall not constitute a Loan and shall not relieve the Company of its obligation to reimburse such LC Disbursement.

(f) Obligations Absolute. The Company’s obligation to reimburse LC Disbursements as provided in paragraph (e) of this Section shall be absolute, unconditional and irrevocable, and shall be performed strictly in accordance with the terms of this Agreement under any and all circumstances whatsoever and irrespective of (i) any lack of validity or enforceability of any Letter of Credit or this Agreement, or any term or provision therein, (ii) any draft or other document presented under a Letter of Credit proving to be forged, fraudulent or invalid in any respect or any statement therein being untrue or inaccurate in any respect, (iii) payment by the Issuing Lender under a Letter of Credit against presentation of a draft or other document that does not comply with the terms of such Letter of Credit, or (iv) any other event or circumstance whatsoever, whether or not similar to any of the foregoing, that might, but for the provisions of this Section, constitute a legal or equitable discharge of, or provide a right of setoff against, the Company’s obligations hereunder. Neither the Administrative Agent, the Lenders, the Issuing Lender, nor any of their Related Parties, shall have any liability or responsibility by reason of or in connection with the issuance or transfer of any Letter of Credit or any payment or failure to make any payment thereunder (irrespective of any of the circumstances referred to in the preceding sentence), or any error, omission, interruption, loss or delay in transmission or delivery of any draft, notice or other communication under or relating to any Letter of Credit (including any document required to make a drawing thereunder), any error in interpretation of technical terms or any consequence arising from causes beyond the control of the Issuing Lender; provided that the foregoing shall not be construed to excuse the Issuing Lender from liability to the Company to the extent of any direct damages (as opposed to consequential damages, claims in respect of which are hereby waived by the Company to the extent permitted by applicable law) suffered by the Company that are caused by the Issuing Lender’s failure to exercise care when determining whether drafts and other documents presented under a Letter of Credit comply with the terms thereof. The parties hereto expressly agree that, in the absence of gross negligence or wilful misconduct on the part of the Issuing Lender (as finally determined by a court of competent jurisdiction), the Issuing Lender shall be deemed to have exercised care in each such determination. In furtherance of the foregoing and without limiting the generality thereof, the parties agree that, with respect to documents presented which appear on their face to be in substantial compliance with the terms of a Letter of Credit, the Issuing Lender may, at its sole discretion, either accept and make payment upon such documents without responsibility for further investigation, regardless of any notice or information to the contrary, or refuse to accept and make payment upon such documents if such documents are not in strict compliance with the terms of such Letter of Credit.

(g) Disbursement Procedures. The Issuing Lender shall, promptly following its receipt thereof, examine all documents purporting to represent a demand for payment under a Letter of Credit. The Issuing Lender shall promptly notify the Administrative Agent and the Company by telephone (confirmed by telecopy) of such demand for payment and whether the Issuing Lender has made or will make an LC Disbursement thereunder; provided that any failure to give or delay in giving such notice shall not relieve the Company of its obligation to reimburse the Issuing Lender and the Lenders with respect to any such LC Disbursement.

(h) Interim Interest. If the Issuing Lender shall make any LC Disbursement, then, unless the Company shall reimburse such LC Disbursement in full on the date such LC Disbursement is made, the unpaid amount thereof shall bear interest, for each day from and including the date such LC Disbursement is made to but excluding the date that the Company reimburses such LC Disbursement, (i) at the Alternate Base Rate until the date on which the Company is obligated to reimburse the Issuing Bank for such LC Disbursement pursuant to Section 2.08(e), and (ii) at the Default Rate thereafter. Interest accrued pursuant to this paragraph shall be for the account of the Issuing Lender, except that interest accrued on and after the date of payment by any Lender pursuant to paragraph (e) of this Section to reimburse any Issuing Lender shall be for the account of such Lender to the extent of such payment.

(i) Replacement of the Issuing Lender, Indemnity. The Issuing Lender may be replaced at any time by written agreement among the Company, the Administrative Agent, the Issuing Lender and the successor Issuing Lender. The Administrative Agent shall notify the Lenders of any such replacement of the Issuing Lender. At the time any such replacement shall become effective, the Company shall pay all unpaid fees accrued for the account of the replaced Issuing Lender. From and after the effective date of any such replacement, (i) the successor Issuing Lender shall have all the rights and obligations of the replaced Issuing Lender under this Agreement with respect to Letters of Credit to be issued thereafter and (ii) references herein to the term “Issuing Lender” shall be deemed to refer to such successor or to any previous Issuing Lender, or to such successor and all previous Issuing Lenders, as the context shall require. After the replacement of the Issuing Lender hereunder, the replaced Issuing Lender shall remain a party hereto and shall continue to have all the rights and obligations of the Issuing Lender under this Agreement with respect to Letters of Credit issued by it prior to such replacement, but shall not be required to issue additional Letters of Credit. The Lenders agree to indemnify each Issuing Lender (to the extent not reimbursed by the Company), ratably according to the respective amounts of the LC Exposure then held by each of them (or if no LC Exposure is at the time outstanding, ratably according to the respective amount of their Commitments), from and against any and all liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements of any kind or nature whatsoever which may be imposed on, incurred by, or asserted against such Issuing Lender in its capacity as such in any way relating to or arising out of this Agreement, or any action taken or omitted by the

Administrative Agent under this Agreement; provided that no Lender shall be liable for any portion of such liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements resulting from such Issuing Lender’s gross negligence or wilful misconduct.

(j) Cash Collateralization. If any Event of Default shall occur and be continuing, on the Business Day that the Company receives notice from the Administrative Agent or the Majority Lenders (or, if the maturity of the Loans has been accelerated, Lenders with LC Exposure representing greater than 50% of the total LC Exposure) demanding the deposit of cash collateral pursuant to this paragraph, the Company shall deposit in an account with the Administrative Agent, in the name of the Administrative Agent and for the benefit of the Lenders, an amount in cash equal to the LC Exposure as of such date plus any accrued and unpaid interest thereon; provided that the obligation to deposit such cash collateral shall become effective immediately, and such deposit shall become effective immediately, and such deposit shall become immediately due and payable, without demand or other notice of any kind, upon the occurrence of any Event of Default with respect to the Company described in Section 10.10 or 10.11. Such deposit shall be held by the Administrative Agent as collateral for the payment and performance of the obligations of the Company under this Agreement. The Administrative Agent shall have exclusive dominion and control, including the exclusive right of withdrawal, over such account. Other than any interest earned on the investment of such deposits, which investments shall be made at the option and sole discretion of the Administrative Agent and at the Company’s risk and expense, such deposits shall not bear interest. Interest or profits, if any, on such investments shall accumulate in such account. Moneys in such account shall be applied by the Administrative Agent to reimburse the Issuing Lender for LC Disbursements for which it has not been reimbursed and, to the extent not so applied, shall be held for the satisfaction of the reimbursement obligations of the Company for the LC Exposure at such time or, if the maturity of the Loans has been accelerated (but subject to the consent of Lenders with LC Exposure representing greater than 50% of the total LC Exposure), be applied to satisfy other obligations of the Company under this Agreement. If the Company is required to provide an amount of cash collateral hereunder as a result of the occurrence of an Event of Default, such amount (to the extent not applied as aforesaid) shall be returned to the Company within three Business Days after all Events of Default have been cured or waived.

SECTION 2.09. Evidence of Debt. Any Lender may request that Loans made by it be evidenced by a promissory note. In such event, the Company shall prepare, execute and deliver to such Lender a promissory note payable to the order of such Lender (or, if requested by such Lender, to such Lender and its registered assigns) and in a form approved by the Administrative Agent and the Company. Thereafter, the Loans evidenced by such promissory note and interest thereon shall at all times (including after assignment pursuant to Section 13.07) be represented by one or more promissory notes in such form payable to the order of the payee named therein (or, if such promissory note is a registered note, to such payee and its registered assigns).

ARTICLE III

Optional and Required Prepayments;

Interest Payment Date and Commitment Reduction Date Payments; Other Payments

SECTION 3.01. Optional Prepayments. Loans may be prepaid in whole or from time to time in part at the option of the Company on any Business Day, without premium or penalty, notwithstanding that such Business Day is not an Interest Payment Date; provided that:

(a) losses, if any, incurred by any Lender under Section 2.01(g) shall be payable with respect to each such prepayment of any such CD Rate Loan or Eurodollar Loan; and

(b) all partial prepayments shall be in an aggregate principal amount of at least $2,000,000 and an integral multiple of $100,000; and

(c) the Company shall give the Administrative Agent not less than one full Business Day’s prior oral or written notice of each prepayment of any Eurodollar Loans or CD Rate Loans, or any portion thereof, and notice to the Administrative Agent not less than 10:00 a.m. (New York, New York time) on the same day of the prepayment of Federal Funds Rate Loans or Alternate Base Rate Loans, or any portion thereof, proposed to be made pursuant to this Section 3.01, specifying the aggregate principal amount to be prepaid and the prepayment date; provided, however, that with respect to each oral notice of a prepayment, the Company shall deliver promptly to the Administrative Agent a confirmatory written notice of such proposed prepayment. The Administrative Agent shall promptly notify the Lenders of the principal amount to be prepaid and the prepayment date. Notice of such prepayment shall be irrevocable and having been given as aforesaid, the principal amount specified in such notice, together with accrued and unpaid interest thereon to the date of prepayment, shall become due and payable on such prepayment date, and the provisions of Section 2.01(g) shall be applicable. The Company shall have no optional right to prepay the principal amount of any Revolving Credit Loan other than as provided in this Section 3.01.

SECTION 3.02. Required Prepayments.

(a) If the Company shall reduce or terminate the respective Commitments of the Lenders pursuant to Section 4.01, it will prepay to each Lender on the effective date of any such reduction or termination:

(i) in the case of a reduction of the Commitments, that part of such unpaid principal amount outstanding of the Conventional Loans and the Discretionary Loans held by such Lender that exceeds the amount of the Commitment of such Lender immediately after such reduction, and

(ii) in the case of termination of the Commitments, the entire unpaid principal amount of the Conventional Loans and the Discretionary Loans; together, in each case, with accrued and unpaid interest on the amount being so prepaid and all other amounts accrued and owing under this Agreement on such date.

(b) If on any Borrowing Date the principal amount outstanding on Loans (when taken together with the LC Exposure of the relevant Lender) made to the Company by any Lender shall exceed the Commitment of such Lender, the Company shall promptly pay to such Lender an amount equal to such excess, together with accrued and unpaid interest on the amount so prepaid and all other amounts accrued and owing under this Agreement on such date.

(c) Notwithstanding the foregoing, in the event any prepayment required by Section 3.02(a) or Section 3.02(b) with respect to any Revolving Credit Loan would become due on a date that is not an Interest Payment Date and as a result thereof the Company would incur liabilities under Section 2.01(g), the Company shall make such prepayment to the Administrative Agent on the due date; provided, however, that, if the Company so elects, interest shall continue to accrue on any Loan so prepaid and shall be paid by the Company to the Administrative Agent on the applicable Interest Payment Date. So long as no Default or Event of Default shall have occurred and be continuing, the Administrative Agent shall hold the proceeds of such prepayment for the benefit of the Lenders, in an interest bearing account, until such time as such proceeds can be applied towards payment of the Revolving Credit Loans in accordance with the provisions of this Agreement without resulting in any liability to the Company under Section 2.01(g). All interest which may accrue on such amounts so held in escrow shall be held by the Administrative Agent for the benefit of the Company.

(d) All prepayments made pursuant to the provisions of this Section 3.02 shall be applied, in the case of Conventional Loans, first, towards payment of all Federal Funds Rate Loans and Alternate Base Rate Loans, as the Company directs, and secondly, and subject to the provisions of Section 2.01(g), towards payment of the appropriate amount of CD Rate Loans and Eurodollar Loans, as the Company directs. The Company shall have no right to reborrow any amount prepaid under Section 3.02(a).

SECTION 3.03. Place, etc. of Payments and Prepayments. All payments and prepayments made in accordance with the provisions of this Agreement (other than with respect to Discretionary Loans) in respect of the Commitment Fees and the Administrative Agent’s fee and of principal of and interest on the Revolving Credit Loans and of LC Disbursements and interest thereon shall be made to the Administrative Agent in Dollars at its office at 270 Park Avenue, New York, New York 10017, in immediately available funds for the accounts of the Lenders. The Administrative Agent will promptly distribute to the Lenders, in accordance with each Lender’s Prepayment Pro Rata Share as to all Loans other than Discretionary Loans, in immediately available funds, the amount of principal, interest, LC Disbursements, Commitment Fees and LC Participation Fees received by the Administrative Agent for the account of the Lenders; provided that if interest shall accrue on any Revolving Credit Loan at a rate different from the rate applicable to any other Revolving Credit Loan, payment and distribution of interest shall be based on the respective accrual rates applicable to such Revolving Credit Loans. Any payment to the Administrative Agent for the account of a Lender under this

Agreement shall constitute payment by the Company to such Lender of the amounts so paid to the Administrative Agent, and any Revolving Credit Loans or portions thereof so paid shall not be considered outstanding for any purpose after the date of such payment to the Administrative Agent.

ARTICLE IV

Reduction of Commitments; Fees

SECTION 4.01. Optional Reduction or Termination of Commitments. The Company may at any time or from time to time reduce ratably in proportion to their respective Commitments or terminate in whole, the respective Commitments of the Lenders hereunder by giving not less than three full Business Days’ prior written notice to such effect to the Administrative Agent; provided that any partial reduction shall be in an aggregate amount of not less than $3,000,000 and an integral multiple of $250,000; provided further that the Commitments may not be reduced to an amount less than the aggregate principal amount of Conventional Loans, Discretionary Loans and LC Exposure outstanding at such time, unless simultaneously therewith the Company shall make a prepayment in accordance with Section 3.02(a) hereof. The Administrative Agent shall promptly notify each Lender of its proportionate share of and of the date of each such reduction. After each such reduction, the Commitment Fees owing to each Lender shall be calculated upon the Commitment of such Lender as so reduced. In the event of acceleration of the maturity date of any Revolving Credit Loan, the Commitments hereunder of the Lenders shall thereupon automatically terminate without notice. Each such reduction or any termination of the Commitments hereunder shall be irrevocable.

SECTION 4.02. Termination of Commitments. The Commitment of each Lender shall automatically terminate on the Termination Date.

SECTION 4.03. Commitment Fees. (a) The Company agrees to pay to the Administrative Agent for the account of each Lender, in Dollars, commitment fees (“Commitment Fees”), computed on a daily basis of a year of 365 or 366 days, as the case may be, from the effective date of this Agreement pursuant to Section 13.08 to and including the Termination Date at a rate per annum equal to the applicable Commitment Fee Rate from time to time in effect on the daily average unused amount of the Commitment of such Lender (taking into account all Conventional Loans and Discretionary Loans of such Lender outstanding on the dates covered by such calculation). Each such Commitment Fee shall be payable on or before the 15th day following each Quarterly Date and on the Termination Date or on such earlier date as the Commitment of such Lender shall terminate pursuant to the terms of this Agreement.

(b) For purposes of computing Commitment Fees with respect to Commitments, a Commitment of a Lender shall be deemed to be used to the extent of the LC Exposure of such Lender.

SECTION 4.04. LC Participation Fees. The Company agrees to pay (i) to the Administrative Agent for the account of each Lender a participation fee (“LC Participation Fee”) with respect to its participations in Letters of Credit, which shall accrue at the Margin Percentage used to determine the interest rate applicable to Eurodollar Loans on the average daily amount of such Lender’s LC Exposure (excluding any portion thereof attributable to unreimbursed LC Disbursements) during the period from and including the Closing Date to but excluding the date on which such Lender ceases to have any LC Exposure, and (ii) to the Issuing Lender a fronting fee, which shall accrue at the rate or rates per annum separately agreed upon by the Company and the Issuing Lender on the average daily stated amount of the Letters of Credit issued by the Issuing Lender during the period from and including the Closing Date to but excluding the date on which there ceases to be any LC Exposure, as well as the Issuing Lender’s standard fees with respect to the issuance, amendment, renewal or extension of any Letter of Credit or processing of drawings thereunder. Accrued participation fees and fronting fees shall be payable on or before the fifteenth day following each Quarterly Date and on the Termination Date or on such earlier date as the Commitments shall terminate pursuant to the terms of this Agreement; and any such fees accruing after the date on which the Commitments terminate shall be payable on demand. Any other fees payable to the Issuing Lender pursuant to this paragraph shall be payable within 10 days after demand. All participation fees and fronting fees shall be computed on the basis of a year of 360 days and shall be payable for the actual number of days elapsed (including the first day but excluding the last day).

SECTION 4.05 Administrative Agent’s Fee. Until payment in full of the Loans and termination of the Commitments, the Company agrees to pay to the Administrative Agent, for its own account, the annual administration fee provided for in the fee letter executed by them.

ARTICLE V

Application of Proceeds

The Company agrees that the proceeds of the Revolving Credit Loans and Discretionary Loans hereunder shall be used by the Company only to refinance other borrowings of the Company and for general corporate purposes of the Company and its Subsidiaries. The Letters of Credit will be used for general corporate purposes.

ARTICLE VI

Representations and Warranties

The Company represents and warrants that:

SECTION 6.01. Organization; Qualification; Subsidiaries. The Company and each Subsidiary (i) is duly organized, validly existing and in good standing under the laws of its jurisdiction of incorporation or organization, (ii) has the corporate or

organizational power to own its properties and to carry on its business as now conducted, and (iii) is duly qualified to do business and is in good standing in every jurisdiction where failure to be duly qualified would have a Material Adverse Effect. Attached hereto as Exhibit 6.01 is a correct and complete list setting forth, as of the date of this Agreement: (A) the name of each Subsidiary, (B) the Company’s and its Subsidiaries’ aggregate percentage interest in such Subsidiary, and (C) whether such Subsidiary is a Restricted or Unrestricted Subsidiary. All shares of capital stock of Restricted Subsidiaries owned by the Company or any Restricted Subsidiary are owned thereby free and clear of all Liens.

SECTION 6.02. Financial Statements. The Company has furnished (either in hard copy or electronically) each Lender with the consolidated financial statements for the Company and its Subsidiaries as at and for its fiscal year ended December 31, 2003, accompanied by the opinion of Deloitte & Touche, and quarterly consolidated financial statements as at and for the period ended March 31, 2004. Such statements have been prepared in conformity with GAAP consistently applied throughout the period involved, except as may be explained in such opinion and except, in the case of interim statements, for year-end audit adjustments and the absence of footnotes. Such statements fairly present in all material respects the financial condition of the Company and its Subsidiaries on a consolidated basis and the results of its and their operations as at the dates and for the periods indicated. There has been no material adverse change in the financial condition or the business or properties of the Company and its Subsidiaries on a consolidated basis since December 31, 2003.

SECTION 6.03. Actions Pending. Except as disclosed in Exhibit 6.03 attached hereto, there is no action, suit or proceeding pending or, to the knowledge of the Company, threatened against the Company or any Subsidiary before any court or administrative agency or other governmental authority which could reasonably be expected, individually or in the aggregate, to have a Material Adverse Effect.

SECTION 6.04. Default. Neither the Company nor any Subsidiary is (i) in default under the provisions of any instrument evidencing any Debt or any other liability, contingent or otherwise, or of any agreement relating thereto or (ii) in default under or in violation of any order, writ, injunction or decree of any court, or in default under or in violation of any order, regulation or demand of any governmental instrumentality, other than for such defaults or violations under clauses (i) and (ii) above which taken in the aggregate do not have a Material Adverse Effect.

SECTION 6.05. Title to Assets; Licenses; Intellectual Property. (a) Except as would not have a Material Adverse Effect, the Company and each Restricted Subsidiary have good and marketable title to their respective assets, subject to no Liens except Permitted Liens.

(b) Each of the Company and the Restricted Subsidiaries owns, or is licensed to use, all trademarks, trade names, copyrights, patents, licenses and other intellectual property material to the business of the Company and the Restricted Subsidiaries, taken as a whole, and the use thereof by the Company and the Restricted

Subsidiaries does not infringe upon the rights of any other Person, except for any such infringements that, in the aggregate, could not reasonably be expected to result in a Material Adverse Effect.

SECTION 6.06. Payment of Taxes. The Company and each Subsidiary have filed all Federal and material state income and franchise tax returns, or extensions therefor, which, to the knowledge of the officers thereof, are required to be filed and have paid all material taxes shown on said returns and all material assessments which are due (other than those the amount or validity of which are currently being contested in good faith by appropriate proceedings). The Company and its officers know of no claims by any governmental authority for any unpaid taxes which claims in the aggregate could reasonably be expected to have a Material Adverse Effect.

SECTION 6.07. Conflicting or Adverse Agreements or Restrictions. Neither the Company nor any Subsidiary is a party to any contract or agreement or subject to any restriction which has a Material Adverse Effect. Neither the execution nor delivery of this Agreement nor compliance with the terms and provisions hereof or of any instruments required hereby will be contrary to the provisions of, or constitute a default under, (i) the charter or by-laws of the Company or any Subsidiary or (ii) any law or any regulation, order, writ, injunction or decree of any court or governmental authority or any material agreement to which the Company or any Subsidiary is a party or by which it is bound or to which it is subject, except for such noncompliance or defaults referred to in this clause (ii) which, individually or in the aggregate, could not reasonably be expected to have a Material Adverse Effect.

SECTION 6.08. Purpose of Loans. Neither the Company nor any Subsidiary is engaged principally, or as one of its important activities, in the business of extending credit for the purpose of purchasing or carrying Margin Stock. This Agreement and the transactions contemplated hereby comply in all respects with Regulations U, T and X of the Board of Governors of the Federal Reserve System. Neither the Company nor any agent acting on its behalf has taken any action which might cause this Agreement to violate Regulations U, T or X or to violate the Securities Exchange Act of 1934, in each case as in effect now or as the same may hereafter be in effect on the date of any Loan.

SECTION 6.09. Authority; Validity. The Company has the corporate power and authority to make and carry out this Agreement and the transactions contemplated herein, to make the borrowings provided for herein and to perform its obligations hereunder; and all such action has been duly authorized by all necessary corporate proceedings on its part. This Agreement has been duly and validly executed and delivered by the Company and constitutes a valid and legally binding agreement of the Company, enforceable in accordance with its terms, except as enforcement may be limited by bankruptcy, insolvency or other laws of general application relating to or affecting the enforcement of creditors’ rights and general principles of equity.

SECTION 6.10. Consents or Approvals. No order, consent, approval, license, authorization or validation of any governmental authority and no registration or

filing with or notice to any governmental authority is necessary to authorize or permit, or is required in connection with, the execution and delivery of this Agreement, the making of borrowings pursuant hereto or the performance of the obligations of the Company hereunder.

SECTION 6.11. Compliance with Law. Neither the Company nor any of its Subsidiaries are in violation of any Federal, state or local laws or orders affecting the Company or any Subsidiary or any of their businesses and operations which taken alone, or in the aggregate, could reasonably be expected to have a Material Adverse Effect. Neither the Company nor any Subsidiary has failed to obtain any license, permit, franchise, consent or authorization of any governmental authority necessary to the ownership of its properties or the operation of its business, which failure could reasonably be expected to have a Material Adverse Effect.

SECTION 6.12. ERISA. The Company and its Subsidiaries are in compliance in all material respects with the applicable provisions of ERISA. Neither the Company nor any Subsidiary, taken individually or in the aggregate, is obligated to pay any material accumulated funding deficiency within the meaning of ERISA or Section 4971 of the Internal Revenue Code of 1986, as amended, or is obligated to pay any material liability to the Pension Benefit Guaranty Corporation established under ERISA, or any successor thereto under ERISA (the “PBGC”) (other than the payment of premiums to the PBGC as required by ERISA), in connection with any Plan.

SECTION 6.13. Investment Company Act. Neither the Company nor any Subsidiary (i) is an investment company as that term is defined in the Investment Company Act of 1940, as amended, (ii) directly or indirectly controls or is controlled by a company which is an investment company as that term is defined in the Investment Company Act of 1940, as amended, or (iii) is otherwise subject to regulation under the Investment Company Act of 1940, as amended.

SECTION 6.14. Disclosure. All material information furnished by or on behalf of the Company in writing to the Administrative Agent or any Lender pursuant to the terms of this Agreement after the date hereof and concerning the historical operations of the Company, will not, when made, include any untrue statement of a material fact or omit to state any material fact necessary to make the statements therein, in light of the circumstances under which they are made, not materially misleading.

ARTICLE VII

Conditions

SECTION 7.01. Conditions Precedent to the Initial Extension of Credit. The obligation of the Lenders to fund the initial Borrowing or Discretionary Borrowing after the date of this Agreement (or issue the first Additional Letter of Credit hereunder, whichever occurs first) is subject to the following conditions:

(a) The Administrative Agent shall have received on behalf of the Lenders from Counsel for the Company their opinion in the form attached hereto as Exhibit 7.01(a), with such changes therein as may be agreed upon by the Company and the Administrative Agent.

(b) The Administrative Agent shall have received on behalf of the Lenders an Officer’s Certificate substantially in the form attached hereto as Exhibit 7.01(b).

(c) The Administrative Agent shall have received all fees and other amounts payable in connection with this Agreement on or prior to the date hereof, including, to the extent invoiced, reimbursement or payment of all out-of-pocket expenses required to be reimbursed or paid by the Company hereunder.

(d) The Existing Credit Agreements shall have been terminated and the principal of and interest accrued on all loans thereunder and all other amounts due and payable thereunder shall have been paid or shall be paid with the proceeds of the initial Borrowing or Discretionary Borrowing hereunder.

(e) The Company shall have delivered to the Administrative Agent and each Lender such other documentation as the Administrative Agent may reasonably request.

Following the satisfaction of the conditions set forth in this Section 7.01, the Administrative Agent shall inform the Company and the Lenders in writing thereof.

SECTION 7.02. Conditions Precedent to Each Extension of Credit. The obligation of the Lenders to fund each borrowing (including, without limitation, the initial Borrowing or Discretionary Borrowing after the date of this Agreement) and of the Issuing Lender to issue, amend, renew or extend Letters of Credit (but, in the case of any amendment, only if such amendment has the effect of increasing the LC Exposure of any Lender or extending the maturity of the applicable Letter of Credit), and of the Lenders to purchase the participations in the Existing Letters of Credit pursuant to the first sentence of Section 2.08(d), is subject to the following (in the case of a Discretionary Borrowing, unless otherwise agreed by the relevant Lender):

(a) The Administrative Agent shall have received by telecopy or otherwise, the Notice of Conventional Borrowing required by Section 2.01(c) or notice of issuance, amendment, renewal or extension required by Section 2.08(b), or the Company and the relevant Lender shall have agreed on terms and conditions for such Discretionary Borrowing satisfactory to such Lender and the Company that are not inconsistent with the provisions of this Agreement.

(b) After giving effect to such extension of credit, and to the application of the proceeds (if any) thereof, the representations and warranties contained in Article VI, other than the representations and warranties made by the Company in the last sentence of Section 6.02 and Sections 6.03 and 6.04, shall be true in all material respects on and as of the particular date of extension of credit as though made on and as of such date (except, in the case of any exhibit referred to in Article VI, to the extent such exhibit expressly relates to a prior date) and each such extension of credit shall be deemed to

constitute a representation and warranty by the Company on the applicable date (except, in the case of any exhibit referred to in Article VI, to the extent such exhibit expressly relates to an earlier date) as to the matters set forth in Article VI (other than the representations and warranties made by the Company in the last sentence of Section 6.02 and in Sections 6.03 and 6.04).

(c) Except as otherwise set forth therein, or in certificates accompanying such financial statements, the most recent financial statements delivered to the Lenders pursuant to Section 8.02 fairly present in all material respects the financial condition of the Company and its Subsidiaries on a consolidated basis and the results of its and their operations as at the dates and for the periods indicated. Each such extension of credit shall be deemed to constitute a representation and warranty by the Company on the applicable date to such effect.

(d) No Default shall have occurred and be continuing or shall occur after giving effect to such extension of credit and the application of the proceeds (if any) thereof, and each extension of credit shall be deemed to constitute a representation and warranty by the Company on the applicable date to such effect.

(e) After giving effect to such extension of credit, and the application of the proceeds (if any) thereof, (x) the sum of the aggregate outstanding principal amount of Loans and the aggregate LC Exposure shall not exceed the Commitments and (y) the aggregate LC Exposure shall not exceed $50,000,000. Each such extension of credit shall be deemed to constitute a representation and warranty by the Company on the applicable date to such effect.

ARTICLE VIII

Affirmative Covenants

The Company covenants and agrees that, so long as the Company may borrow hereunder and until payment in full of the Revolving Credit Loans and, unless otherwise agreed, any Discretionary Loans and until all Letters of Credit shall have expired or terminated and all LC Disbursements shall have been reimbursed, the Company will:

SECTION 8.01. Certain Financial Covenants. Maintain at all times:

(a) a Leverage Ratio of not more than 5.0 to 1.0; and

(b) a ratio of Consolidated Operating Cash Flow to Consolidated Interest Expense of not less than 2.0 to 1.0.

SECTION 8.02. Financial Statements and Information. Deliver to each of the Lenders (either in hard copy or electronically):

(a) as soon as available, and in any event within 90 days, after the end of each fiscal year (i) a copy of the consolidated annual audited financial statements of the Company and its Subsidiaries for such fiscal year containing a balance sheet, an income statement, a statement of shareholders’ equity and a consolidated statement of cash flows, all in reasonable detail, together with the unqualified opinion of Deloitte & Touche or another independent certified public accountant of recognized national standing, that such statements have been prepared in accordance with GAAP, consistently applied, except as may be explained in such opinion, and fairly present in all material respects the financial condition of the Company and its Subsidiaries on a consolidated basis and the results of its and their operations as at the dates and for the periods indicated and (ii) a copy of the reconciliation sheet, certified by a financial officer of the Company, setting forth the adjustments required to the consolidated audited financial statements of the Company and its Subsidiaries referred to above in this paragraph (a) in order to arrive at the consolidated financial statements of the Company and its Restricted Subsidiaries;

(b) as soon as available, and in any event within 60 days, after the end of each of the first three quarterly accounting periods in each fiscal year (i) a copy of the consolidated unaudited financial statements of the Company and its Subsidiaries as at the end of such quarter and for the period then ended, containing a balance sheet, an income statement, a statement of shareholders’ equity and a consolidated statement of cash flows, all in reasonable detail and certified by a financial officer of the Company to have been prepared in accordance with GAAP, consistently applied, except as may be explained in such certificate and except, in the case of interim statements, for year end audit adjustments and the absence of footnotes, and as fairly presenting in all material respects the financial condition of the Company and its Subsidiaries on a consolidated basis and the results of its and their operations as at the dates and for the periods indicated and (ii) a copy of the reconciliation sheet, certified by the Company, setting forth the adjustments required to the consolidated quarterly financial statements of the Company and its Subsidiaries referred to above in this paragraph (b) in order to arrive at the consolidated financial statements of the Company and its Restricted Subsidiaries;

(c) promptly after the filing thereof, copies of all statements and reports filed with the Securities and Exchange Commission, other than Form S-8 registration statements and other reports relating to employee benefit plans, supplements to registration statements relating solely to the pricing of securities offerings for which registration statements were previously filed and Forms D;

(d) promptly, and in any case within five Business Days, after any officer of the Company obtains knowledge of an Event of Default or Default, an Officer’s Certificate specifying the nature of such Event of Default or Default, the period of existence thereof, and what action the Company has taken and proposes to take with respect thereto;

(e) promptly upon the Company’s or any Subsidiary’s receipt thereof, copies of all notices received from the FCC regarding the termination, cancellation, revocation or taking of any other materially adverse action with respect to any Material FCC Licenses; and

(f) promptly after request, such additional financial or other information as the Administrative Agent or any Lender acting through the Administrative Agent may reasonably request from time to time.

All financial statements specified in clauses (a) and (b) above shall be furnished with comparative consolidated figures for the corresponding period in the preceding year. Together with each delivery of financial statements required by clauses (a) and (b) above, the Company will deliver to each Lender (i) such schedules, computations and other information as may be required to demonstrate that the Company is in compliance with its covenants in Sections 8.01, 9.01(i), 9.03, 9.05 and 9.06 or reflecting any noncompliance therewith as at the applicable date, and (ii) an Officer’s Certificate stating that, to the knowledge of such officer, there exists no Default or Event of Default or if , to the knowledge of such officer any such Default or Event of Default exists, stating the nature thereof, the period of existence thereof, and what action the Company has taken and proposes to take with respect thereto. Together with each delivery of financial statements required by clause (a) above, the Company will deliver to each Lender a written statement of said accountants that, in conducting the audit necessary to the issuance of an opinion on such financial statements, nothing came to their attention that caused them to believe that an Event of Default or Default relating to financial and accounting matters (an “Accounting Event of Default or Default”) had occurred, or, if such accountants shall have obtained knowledge of any such Accounting Event of Default or Default, such statement shall specify the nature and period of existence thereof; provided that such accountants shall not be liable directly or indirectly to any Lender for failure to obtain knowledge of any such Accounting Event of Default or Default, and provided further that in issuing such statement, such accountants shall not be required to go beyond those auditing procedures conducted in connection with their issuance of the opinion referred to above. Each Lender is authorized to deliver a copy of any financial statement delivered to it to any regulatory body having jurisdiction over it and to any other Person as may be required by applicable law, rules and regulations.

Financial statements required to be delivered pursuant to Section 8.02(a)(i) or (b)(i) or statements and reports required to be delivered pursuant to Section 8.02(c) (to the extent any such documents are included in materials otherwise filed with the SEC) shall be deemed to have been delivered on the date on which notice is received by the Administrative Agent that such information has been posted on the Company’s website on the Internet at www.coxradio.com, at sec.gov/edgar/searchdgar/webusers.htm or at another website identified in such notice and accessible by the Lenders without charge (except in the case of statements of beneficial ownership of securities on Form 3, 4 or 5, which shall be deemed to have been delivered when so posted regardless of whether such notice is received). The Administrative Agent shall have no obligation to request the delivery or to maintain copies of the documents referred to above, and each Lender shall be solely responsible for requesting delivery to it or maintaining its copies of such documents.

SECTION 8.03. Existence; Laws; Obligations. Maintain its corporate existence, comply and cause its Subsidiaries to comply, in all respects material to the financial condition, business and properties of the Company and its Subsidiaries on a

consolidated basis, with all applicable laws and regulations and pay and cause its Subsidiaries to pay all Taxes, assessments, governmental charges and other obligations which if unpaid might become a Lien (other than a Permitted Lien) against the Property of the Company or a Subsidiary, except obligations being contested in good faith by appropriate proceedings.

SECTION 8.04. Notice of Litigation and Other Matters. Promptly notify the Administrative Agent in writing of (i) any action, suit or proceeding pending or to the knowledge of the Company threatened, before any governmental authority (including, without limitation, any bankruptcy or similar proceeding by or against the Company or any Subsidiary) which, in the view of the Company, could reasonably be expected to have a Material Adverse Effect, (ii) the failure of any Unrestricted Subsidiary to pay when due (after giving effect to any grace period permitted from time to time) any Debt of such Unrestricted Subsidiary, the outstanding amount of which exceeds, singularly or in the aggregate, $50,000,000, or the holder of such Debt declares, or may declare, such Debt due prior to its stated maturity because of the occurrence of a default or other event thereunder or with respect thereto, if such failure, declaration or right to declare could reasonably be expected to have a Material Adverse Effect, (iii) any revocation, suspension or expiration (other than expiration at maturity in accordance with their terms) of FCC licenses or franchises which are material to the operations of the Company and the Restricted Subsidiaries on a consolidated basis (the “Material FCC Licenses”), (iv) the designation by the Company of a Subsidiary as an Unrestricted Subsidiary pursuant to the terms hereof, which notice shall (A) set forth the calculations evidencing compliance with Section 8.01 after giving effect to such designation, determined in accordance with the most recent financial statements delivered to the Lenders pursuant to Section 6.02 or Section 8.02, as the case may be, and (B) be deemed to be a representation and warranty of the Company that at the time of such designation and after giving effect thereto, no Default or Event of Default shall have occurred and be continuing. Promptly after the receipt by the Administrative Agent of any notice provided for in this Section 8.04, the Administrative Agent will provide the Lenders with a copy of such notice.

SECTION 8.05. Books and Records. Maintain, and cause its Subsidiaries to maintain, proper books of record and account in accordance with GAAP and in accordance, in all material respects, with applicable corporate, securities and financial reporting laws.

SECTION 8.06. Inspection of Property and Records. Permit any Person designated in writing by the Administrative Agent, or any Lender acting through the Administrative Agent (i) to visit and inspect any of the properties of the Company and any Restricted Subsidiary and discuss its and their respective affairs and finances with its and their respective principal officers and to inspect any of the corporate books and financial records of the Company and any Restricted Subsidiary and (ii) from and after the occurrence of an Event of Default, to make copies of and abstracts from the books and records of account of the Company and its Restricted Subsidiaries, in each case all upon reasonable prior notice and at such times as the Administrative Agent or any Lender acting through the Administrative Agent may reasonably request. Notwithstanding Section 13.01, but without prejudice to any other provision contained herein, unless any

such visit or inspection is conducted after the occurrence and during the continuance of a Default or an Event of Default, the Company shall not be required to pay any costs or expenses incurred by the Administrative Agent, any Lender or any other Person in connection with any such visit or inspection.

SECTION 8.07. Maintenance of Property; Insurance. Cause its Property and the Property of its Subsidiaries to be maintained, preserved and protected and kept in good repair, working order and condition so as not to materially and adversely affect the business carried on in connection therewith and maintain, and cause its Subsidiaries to maintain, insurance with responsible companies in such amounts and against such risks as is reasonably deemed appropriate by the Company.

SECTION 8.08. ERISA. Comply in all material respects with the applicable provisions of ERISA and furnish to the Administrative Agent (i) as soon as possible, and in any event within 30 days after the Company or a duly appointed administrator of a Plan knows that any “reportable event” (as such term is defined in Section 4043 of ERISA), other than a reportable event for which the notice requirement has been waived by the PBGC under Sections 4043.22, 4043.23, 4043.27 through 4043.32 (inclusive) and 4043.34 of the PBGC regulations) with respect to any Plan has occurred, a statement of the chief financial officer of the Company setting forth details as to such reportable event and the action which the Company proposes to take with respect thereto, together with a copy of any notice of such reportable event given to the PBGC (provided, however, that if such notice has not been submitted to the PBGC as of the date of the required notice to the Administrative Agent under this Section 8.08, a copy of such notice to the PBGC shall be provided to the Administrative Agent as of the date provided to the PBGC) and (ii) promptly after receipt thereof, a copy of any notice the Company, any Subsidiary or any member of the controlled group of corporations may receive from the PBGC relating to the intention of the PBGC to terminate any Plan.

SECTION 8.09. Maintenance of Business Lines. Maintain and cause its Restricted Subsidiaries to maintain lines of business in radio broadcasting and related lines of business that are similar in scope to the existing business lines and operations of the Company and its Restricted Subsidiaries.

SECTION 8.10. Compliance with Material FCC Licenses. The Company will maintain, and will cause each Subsidiary to maintain, in full force and effect at all times during the term of this Agreement, and will materially comply with, and will cause each Subsidiary to materially comply with, the terms and provisions of, the Material FCC Licenses.

ARTICLE IX

Negative Covenants

So long as the Company may borrow hereunder and until payment in full of the Revolving Credit Loans and, unless otherwise agreed, any Discretionary Loans, and until all Letters of Credit shall have expired or terminated and all LC Disbursements shall have been reimbursed:

SECTION 9.01. Mortgages, Etc. The Company will not and will not permit any Restricted Subsidiary to create or permit to exist any Lien upon any of its assets, whether now owned or hereafter acquired, or assign or otherwise convey any right to receive income, except

(a) Liens for Taxes, assessments, governmental charges and other similar obligations not yet due or which are being contested in good faith by appropriate proceedings;

(b) other Liens incidental to the conduct of its business or the ownership of its assets which were not incurred in connection with the borrowing of money, and which do not in the aggregate materially detract from the value of its assets or materially impair the use thereof in the operation of its business;

(c) Liens on assets of a Restricted Subsidiary to secure obligations of such Restricted Subsidiary to the Company or a Wholly Owned Restricted Subsidiary;

(d) Liens existing on the date hereof which are (i) described in Exhibit 9.01(d) attached hereto, (ii) securing Debt reflected in the consolidated financial statements of the Company referred to in Section 6.02 or (iii) Liens on Property that were existing at the time of the acquisition thereof by the Company or any Restricted Subsidiary or placed thereon to secure a portion of the purchase price thereof;

(e) Liens on Property acquired after the date hereof, existing at the time of acquisition thereof by the Company or any Restricted Subsidiary or placed thereon within one year of such acquisition to secure a portion of the purchase price thereof; provided that no such Lien may encumber or cover any other Property of such Restricted Subsidiary, of the Company or of any other Restricted Subsidiary;

(f) Liens on the stock of Unrestricted Subsidiaries;

(g) to the extent not covered by clause (b) above, Liens of attachment, judgments or awards in respect of which adequate reserves have been established in accordance with GAAP and which do not constitute an Event of Default;

(h) Liens securing interest rate and currency hedging arrangements in a notional amount which, when taken together with the notional amounts of all other outstanding hedging arrangements secured in accordance with this clause (h), does not at the time incurred exceed $100,000,000, so long as (i) the related Debt is permitted to be incurred in accordance with the terms hereof and (ii) such arrangements are entered into by the Company or any Subsidiary solely for risk management purposes; and

(i) other Liens on Property of the Company and its Restricted Subsidiaries having an aggregate value of not more than 15% of Consolidated Net Worth as of the end of each fiscal quarter.

SECTION 9.02. Merger; Consolidation; Disposition of Assets. The Company will not merge or consolidate with any other corporation or sell or dispose of all or substantially all of its assets unless the Company shall be the continuing or surviving corporation and both before and after giving effect to such merger or consolidation no Default or Event of Default shall exist. The Company will not and will not permit any Restricted Subsidiary to sell, lease or transfer or otherwise dispose of (whether in one transaction or a series of transactions), its assets that are material to the business, operations or financial condition of the Company and its Restricted Subsidiaries, taken as a whole, other than inventory in the ordinary course of business and stock of Unrestricted Subsidiaries, unless both before and after giving effect to such disposition no Default or Event of Default shall exist.

SECTION 9.03. Restricted Payments. The Company will not, and will not permit any Restricted Subsidiary to, pay or declare any dividend (exclusive of stock dividends and cash dividends paid by the Subsidiaries to the Company or to Restricted Subsidiaries) or redeem or acquire, directly or indirectly, any of the stock of the Company or such Subsidiary or any warrant or option to purchase any of such stock (any of the foregoing, a “Restricted Payment”), if (a) the Leverage Ratio would have exceeded 4.5 to 1.0 as of the end of the four fiscal quarter period most recently ended on a pro forma basis as if such Restricted Payment had occurred on the first day of such four fiscal quarter period, or (b) the Company is not in compliance with its obligations under clauses (a) and (b) (and the related provisions of the last paragraph) of Section 8.02. Notwithstanding the foregoing, there shall not be included in the foregoing limitations or computations (A) exchanges of stock for other stock, (B) retirements of stock out of the proceeds of the sale of other stock after the date hereof, (C) net acquisitions after giving effect to stock issuances to employees by the Company of its stock from certain employees of the Company pursuant to the Company’s stock repurchase agreements in an aggregate amount not to exceed $10,000,000 in any one calendar year, or (D) purchases or other acquisitions in arm’s-length transactions of the capital stock of any Subsidiary not Wholly Owned by the Company from stockholders of such Subsidiary that are not members of the Cox Family.

SECTION 9.04. Limitation on Margin Stock. The Company will not and will not permit any Subsidiary to own or acquire Margin Stock such that at any time any extension of credit under this Agreement shall be in violation of Regulation U of the Federal Reserve System.

SECTION 9.05. Loans and Advances to and Investments in Unrestricted Subsidiaries. The Company will not and will not permit any Restricted Subsidiary to make any loan or advance to, or any capital contribution to or other investment in (any of the foregoing, an “Investment”), any Unrestricted Subsidiary, if at the time of such Investment, and after giving effect thereto, (a) the Leverage Ratio would have exceeded 4.5 to 1.0 as of the end of the four fiscal quarter period most recently ended on a pro forma basis as if such Investment had occurred on the first day of such four fiscal quarter period, unless such Investment is on terms which are no less favorable to the Company or Restricted Subsidiary, as the case may be, than would obtain in a comparable arm’s-length transaction with an unaffiliated Person, or (b) a Default or Event of Default shall

have occurred and be continuing; provided that so long as no Event of Default shall have occurred and be continuing, the Company and its Restricted Subsidiaries may continue to make Investments consisting of obligations of Unrestricted Subsidiaries to the Company and its Restricted Subsidiaries arising in the ordinary course of business as a result of short-term advances and/or pooling of cash in connection with cash management programs conducted by Unrestricted Subsidiaries on behalf of the Company and its Restricted Subsidiaries.

SECTION 9.06. Debt. The Company will not permit any Restricted Subsidiary to create, incur or suffer to exist any Debt except:

(a) Debt outstanding on the date hereof which is reflected in the consolidated financial statements of the Company referred to in Section 6.02; and

(b) additional Debt in an amount which, when taken together with all other outstanding Debt incurred in reliance on this clause (b) and, without duplication, all outstanding Debt of the Company and its Restricted Subsidiaries secured by Liens incurred in reliance on clause (i) of Section 9.01, does not at the time it is incurred exceed 15% of Consolidated Net Worth.

SECTION 9.07. Transactions with Affiliates. The Company will not, and will not permit any Restricted Subsidiary to, directly or indirectly enter into any transaction or series of transactions, whether or not in the ordinary course of business, with any Affiliate of the Company other than (a) with the Company or one or more Subsidiaries that are otherwise permitted by this Agreement, (b) transactions on terms and conditions substantially as favorable to the Company or such Restricted Subsidiary, taken as a whole, as would be obtainable by the Company or such Restricted Subsidiary at the time in comparable arm’s length transactions with Persons other than Affiliates of the Company, (c) transactions involving the Company and its Restricted Subsidiaries exclusively, (d) any executive or employee incentive or compensation plan, contract or other arrangement (including any loans or extensions of credit in connection therewith) if such plan, contract or arrangement is approved either by the stockholders of the Company (in accordance with such voting requirements as may be applicable) or by the Board of Directors (or similar governing body) of the Company (or any committee thereof) by unanimous consent or at a meeting at which a quorum of disinterested directors is present or by any person designated by such Board of Directors (or similar governing body) or committee thereof by unanimous consent or at such a meeting to approve such agreements on behalf of the Company, and (e) any tax sharing agreement with the Company’s Affiliates; provided, however, that any such tax sharing agreement shall apportion tax liabilities between or among the parties based on factors customarily used in similar agreements to determine such apportionment.

ARTICLE X

Events of Default

If any of the following events shall occur and be continuing, then (i) the obligation of the Lenders to make Loans hereunder and of the Issuing Lender to issue, amend, renew or extend Letters of Credit shall immediately terminate and (ii) upon the written request of the Majority Lenders, the Administrative Agent shall, by notice to the Company, declare all Revolving Credit Loans then outstanding hereunder (together with all interest accrued and unpaid thereon and all other amounts owing or payable hereunder) to be, and thereupon such Revolving Credit Loans (and other amounts as aforesaid) shall become, immediately due and payable without presentment, demand, protest, notice of intent to accelerate or other notice of any kind to the Company, all of which are hereby expressly waived; provided that, in the case of an event described in Sections 10.09 through 10.12, inclusive, with respect to the Company, all Revolving Credit Loans then outstanding hereunder (and other amounts as aforesaid) shall become immediately due and payable without presentment, demand, protest, notice of intent to accelerate, notice of acceleration or other notice of any kind to the Company, all of which are hereby expressly waived:

SECTION 10.01. Failure to Pay Principal or Interest. The Company does not pay or prepay any principal of any Revolving Credit Loan or any LC Disbursement within five days after the date due or the Company does not pay or prepay any interest on any Revolving Credit or any LC Disbursement Loan (i) on or before five days after actual receipt of oral or written notice from the Administrative Agent as to the amount of interest due, but in no event shall the Company be required to pay or prepay any such interest prior to the date due, or (ii) within 10 days after the due date thereof if no notice is actually received by the Company from the Administrative Agent with respect to the amount of interest due; or

SECTION 10.02. Failure to Pay Other Sums. The Company does not pay any sums (other than payments of principal and interest on the Revolving Credit Loans or of LC Disbursements or interest thereon, in each case covered by Section 10.01) payable to the Administrative Agent or any Lender under the terms of this Agreement (including, without limitation, amounts due and payable under Section 3.02(a)) within 10 days after the date due (or, in the case of the Commitment Fees or LC Participation Fees payable to the Administrative Agent for the account of each Lender pursuant to Section 4.03 or 4.04, 10 days after written notice of nonpayment has been received by the Company from the Administrative Agent or any Lender); or

SECTION 10.03. Failure to Pay Other Debt. (i) The Company or any Restricted Subsidiary does not pay when due any other Debt of the Company or any Restricted Subsidiary, the outstanding amount of which exceeds, singularly or in the aggregate, $25,000,000, in respect of which any applicable grace period has expired, provided that a default under other Debt of the Company or any Restricted Subsidiary as described in this clause (i) shall not constitute an Event of Default under this Agreement if such default is the result of a failure to pay caused by an error or omission of an administrative or operational nature and funds were available to enable the Company or such Restricted Subsidiary to make the payment when due, unless either (x) the Company

or such Restricted Subsidiary is aware of such default and, if no grace period of at least 3 days is provided for under the other Debt, 3 days have passed since the Company or Restricted Subsidiary became aware of such default without the curing of the default, or (y) such other Debt has become due prior to the maturity thereof; and provided further that, during the continuance of any applicable grace period or such 3 day period, any such failure to pay such other Debt when due shall constitute a Default (but not an Event of Default) hereunder; or (ii) the Company or any Restricted Subsidiary shall otherwise default under any other Debt of the Company or any Restricted Subsidiary, the outstanding amount of which exceeds, singularly or in the aggregate, $25,000,000, in respect of which any applicable notice has been given and such Debt has been declared due prior to any maturity thereof; provided that during the continuance of any applicable grace period with respect thereto, such event shall constitute a Default (but not an Event of Default) hereunder; or

SECTION 10.04. Misrepresentation or Breach of Warranty. (i) Any representation or warranty made or deemed made by the Company herein or (ii) any other written or formally presented information provided by the Company pursuant to this Agreement after the date hereof concerning the historical operations of the Company, when made or deemed made, shall be incorrect in any material respect; or

SECTION 10.05. Violation of Certain Covenants. The Company violates any covenant, agreement or condition contained in Article V or Section 8.01 or Article IX; or

SECTION 10.06. Violation of Other Covenants, etc. The Company violates any other covenant, agreement or condition contained herein and such violation shall not have been remedied within 30 days after written notice has been received by the Company from the Administrative Agent or any Lender; or

SECTION 10.07. Undischarged Judgment. Final judgment for the payment of money in excess of $25,000,000 (excluding any amount as to which an insurer having an A.M. Best rating of “A” or better and being in a financial size category of XII or better (as such category is defined as of the date hereof) has acknowledged liability) shall be rendered against the Company or any Restricted Subsidiary and the same shall remain undischarged for a period of 30 days during which period execution shall not be effectively stayed; or

SECTION 10.08. Change of Control. The Cox Family shall cease at any time to Control the Company; or

SECTION 10.09. Assignment for Benefit of Creditors or Nonpayment of Debts. The Company or any Restricted Subsidiary makes an assignment for the benefit of creditors or is generally not paying its debts as such debts become due; or

SECTION 10.10. Voluntary Bankruptcy. The Company or any Restricted Subsidiary petitions or applies to any tribunal for or consents to the appointment of, or taking possession by, a trustee, receiver, custodian, liquidator or similar official of the

Company or any Restricted Subsidiary, or of any substantial part of the assets of the Company or any Restricted Subsidiary, or commences any case or proceedings relating to the Company or any Restricted Subsidiary under any bankruptcy, reorganization, arrangement, insolvency, readjustment of debt, dissolution or other liquidation law of any jurisdiction; or

SECTION 10.11. Involuntary Bankruptcy. Any such petition or application is filed, or any such case or proceedings are commenced, against the Company or any Restricted Subsidiary, and the Company or such Restricted Subsidiary by any act indicates its approval thereof, consent thereto or acquiescence therein, or an order for relief is entered in an involuntary case under the bankruptcy law of the United States of America, or an order, judgment or decree is entered appointing such trustee, receiver, custodian, liquidator or similar official or adjudicating the Company or any Restricted Subsidiary bankrupt or insolvent, or approving the petition in any such case or proceedings, and such order, judgment or decree remains in effect for 60 days; or

SECTION 10.12. Dissolution. Any order is entered in any proceeding against the Company or any Restricted Subsidiary decreeing the dissolution or split-up of the Company or such Restricted Subsidiary, and such order remains unstayed and in effect for 60 days.

ARTICLE XI

Modifications, Amendments or Waivers

Any of the provisions of this Agreement may from time to time be modified or amended by, or waived with, the written consent of the Majority Lenders; provided that no such waiver, modification or amendment may be made which will:

(a) increase the amount or extend the term of the Commitment of any Lender hereunder, other than as permitted by Section 4.01, without the prior written consent of all the Lenders; or

(b) extend the time for payment of principal of or interest on any Revolving Credit Loan or of any LC Disbursement or interest thereon, or the time for payment of any revolving line of credit or facility fee, or waive an Event of Default with respect to payment of any LC Disbursement, principal, interest or fee, or reduce the principal amount of or the rate of interest on any Revolving Credit Loan or any LC Disbursement, or otherwise affect the terms of payment of the principal of or interest (other than to increase the interest rate or the Commitment Fees or LC Participation Fees, which may be effected with the written consent of the Majority Lenders) on any Revolving Credit Loan or any LC Disbursement, or reduce the amount of the Commitment Fees or LC Participation Fees, or otherwise affect the terms of payment of any such fee, without the prior written consent of the affected Lender; or

(d) waive, modify or amend the provisions of Article V or this Article XI or any other provision of this Agreement that requires the consent of all of the Lenders without the prior written consent of all the Lenders; or

(e) waive, modify or amend the provisions of Article XII without the prior written consent of the Administrative Agent and the Majority Lenders; or

(f) amend, modify or otherwise affect the rights or duties of the Issuing Lender hereunder without the prior written consent of the Issuing Lender.

No failure or delay on the part of the Administrative Agent or any Lender in exercising any right, power or remedy hereunder shall operate as a waiver thereof, nor shall any single or partial exercise of any such power, right or remedy or any abandonment or discontinuance of steps to enforce such a power, right or remedy preclude any other or further exercise thereof or the exercise of any other power, right or remedy hereunder. The remedies provided for in this Agreement are cumulative and not exclusive of any remedies provided by law or in equity. No modification or waiver of any provision of this Agreement nor consent to any departure by the Company therefrom shall in any event be effective unless the same shall be in writing, and then such waiver or consent shall be effective only in the specific instance and for the purpose for which given. No notice to or demand on the Company in any case shall entitle the Company to any other or further notice or demand in similar or other circumstances.

ARTICLE XII

The Administrative Agent

SECTION 12.01. Appointment of Administrative Agent. Each of the Lenders irrevocably appoints and authorizes the Administrative Agent to act on its behalf under this Agreement, and to exercise such powers hereunder as are specifically delegated to or required of the Administrative Agent by the terms hereof, together with such powers as may be reasonably incidental thereto. As to any matters not expressly provided for by this Agreement, the Administrative Agent shall not be required to exercise any discretion or take any action, but shall be required to act or to refrain from acting (and shall be fully protected in so acting or refraining from acting) upon the instructions of the Majority Lenders, and such instructions shall be binding upon all Lenders; provided, however, that the Administrative Agent shall not be required to take any action which exposes the Administrative Agent to personal liability or which is contrary to this Agreement or applicable law.

SECTION 12.02. Indemnification of Administrative Agent. The Administrative Agent shall not be required to take any action hereunder or to prosecute or defend any suit in respect of this Agreement, unless indemnified to its satisfaction by the Lenders against loss, cost, liability and expense. If any indemnity furnished to the Administrative Agent shall become impaired, it may call for additional indemnity and cease to do the acts indemnified against until such additional indemnity is given. In addition, the Lenders agree to indemnify the Administrative Agent (to the extent not

reimbursed by the Company), ratably according to the respective principal amounts of the Revolving Credit Loans and the LC Exposure then held by each of them (or if no LC Exposure and Revolving Credit Loans are at the time outstanding, ratably according to the respective amount of their Commitments), from and against any and all liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements of any kind or nature whatsoever which may be imposed on, incurred by, or asserted against the Administrative Agent in any way relating to or arising out of this Agreement, or any action taken or omitted by the Administrative Agent under this Agreement; provided that no Lender shall be liable for any portion of such liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements resulting from the Administrative Agent’s gross negligence or wilful misconduct.

SECTION 12.03. Limitation of Liability. Neither the Administrative Agent nor any of its directors, officers, employees, attorneys or agents shall be liable for any action taken or omitted by it or them hereunder, or in connection herewith, (i) with the consent or at the request of the Majority Lenders, or (ii) in the absence of its or their own gross negligence or willful misconduct. Without limitation of the generality of the foregoing, the Administrative Agent: (t) except as expressly set forth herein, shall not have any duty to disclose, and shall not be liable for the failure to disclose, any information relating to the Company or any of its Subsidiaries that is communicated to or obtained by the bank serving as Administrative Agent or any of its Affiliates in any capacity, (u) may treat the payee with respect to any Revolving Credit Loan as the proper payee thereof until the Administrative Agent receives written notice of the assignment or transfer thereof signed by such payee and in form satisfactory to the Administrative Agent; (v) may consult with legal counsel (including Counsel for the Company), independent public accountants and other experts selected by it and shall not be liable for any action taken or omitted to be taken in good faith by it in accordance with the advice of such counsel, accountants or experts; (w) makes no warranty or representation to any Lender and shall not be responsible to any Lender for any statements, warranties or representations made in or in connection with this Agreement; (x) shall not have any duty to ascertain or to inquire as to the performance or observance of any of the terms, covenants or conditions of this Agreement, or to inspect the Property (including the books and records) of the Company; (y) shall not be responsible to any Lender for the due execution, legality, validity, enforceability and genuineness of this Agreement, or any other instrument or document furnished pursuant hereto; and (z) shall incur no liability under or in respect of this Agreement by acting upon any notice or consent (whether oral or written and whether by telephone, telegram, cable or telex), certificate or other instrument or writing (which may be by telegram, cable or telex) believed by it to be genuine and communicated, signed or sent by the proper Person or Persons.

SECTION 12.04. Independent Credit Decision. Each Lender agrees that it has relied solely upon its independent review of the financial statements of the Company and all other representations and warranties made by the Company herein or otherwise in making the credit decisions preliminary to entering into this Agreement and agrees that it will continue to rely solely upon its independent review of the facts and circumstances of the Company in making future decisions with respect to this Agreement

and the Revolving Credit Loans and the LC Exposure. Each Lender agrees that it has not relied and will not rely upon the Administrative Agent or any other Lender respecting the ability of the Company to perform its obligations pursuant to this Agreement.

SECTION 12.05. Rights of JPMCB. With respect to its Commitment, its participation in Letters of Credit, the Letters of Credit issued by it and the Loans made by it, JPMCB shall have the same rights and powers under this Agreement as any other Lender and may exercise the same as though it were not the Administrative Agent; and the term “Lender” or “Lenders” shall, unless otherwise expressly indicated, include JPMCB in its individual capacity. JPMCB and its Affiliates may accept deposits from, lend money to, act as trustee under indentures of, and generally engage in any kind of business with, the Company, any of the Subsidiaries and any Person or entity who may do business with or own securities of any of them or of their subsidiaries, all as if JPMCB were not the Administrative Agent and without any duty to account therefor to the Lenders.

SECTION 12.06. Successor to the Administrative Agent. The Administrative Agent may resign at any time as Administrative Agent under this Agreement, by giving 30 days’ prior written notice thereof to the Lenders and the Company and may be removed as Administrative Agent under this Agreement, at any time with or without cause by the Company and the Majority Lenders. Upon any such resignation or removal, the Company (with the consent of the Majority Lenders, which shall not be unreasonably withheld) shall have the right to appoint a successor Administrative Agent thereunder. If no successor Administrative Agent shall have been so appointed by the Company (with the consent of the Majority Lenders), and shall have accepted such appointment, within 30 days after the retiring Administrative Agent’s giving of notice of resignation or the Majority Lenders’ removal of the retiring Administrative Agent, then the retiring Administrative Agent may, on behalf of the Lenders, appoint a successor Administrative Agent, which shall be a commercial bank organized under the laws of the United States of America or of any State thereof and having a combined capital and surplus of at least $500,000,000. Upon the acceptance of any appointment as Administrative Agent under this Agreement by a successor Administrative Agent, such successor Administrative Agent shall thereupon succeed to and become vested with all the rights, powers, privileges and duties of the retiring Administrative Agent, and the retiring Administrative Agent shall be discharged from its duties and obligations under this Agreement. After any retiring Administrative Agent’s resignation or removal as Administrative Agent under this Agreement, the provisions of this Article XII shall inure to its benefit as to any actions taken or omitted to be taken by it while it was Administrative Agent under this Agreement.

SECTION 12.07. Other Agents and Sub-Agents. None of the Lenders identified on the facing page or signature pages or elsewhere herein as “syndication agent” or “co-documentation agent” shall have any right, power, obligation, liability, responsibility or duty under this Agreement other than those applicable to all Lenders as such. Without limiting the foregoing, none of the Lenders so identified shall have or be deemed to have any fiduciary relationship with any Lenders. Each Lender acknowledges that it has not relied, and will not rely, on any of the Lenders so identified in deciding to

enter into this Agreement or in taking or not taking action hereunder. The Administrative Agent may perform any and all its duties and exercise its rights and powers by or through any one or more sub-agents appointed by the Administrative Agent. The Administrative Agent and any such sub-agent may perform any and all its duties and exercise its rights and powers through their respective Related Parties. The exculpatory provisions of the preceding Sections of this Article XII shall apply to any such sub-agent and to the Related Parties of the Administrative Agent and any such sub-agent, and shall apply to their respective activities in connection with the syndication of the credit facilities provided for herein as well as activities as Administrative Agent.

ARTICLE XIII

Miscellaneous

SECTION 13.01. Payment of Expenses. Any provision hereof to the contrary notwithstanding (other than the last sentence of Section 8.06), and whether or not the transactions contemplated by this Agreement shall be consummated, the Company agrees to pay on demand (i) all reasonable costs and expenses of the Administrative Agent and the Lenders or any Lender in connection with the preparation, execution and delivery of this Agreement and all amendments hereto (including, without limitation, waivers hereunder and workouts with respect to Loans hereunder), and the other instruments and documents to be delivered hereunder or with respect to any amendment hereto, including, without limitation, the reasonable fees and out-of-pocket expenses of any counsel for the Administrative Agent and the Lenders or any Lender with respect thereto, provided, however, that so long as no Event of Default has occurred and is continuing, such reasonable counsel expenses shall be limited to the reasonable expenses of counsel for the Administrative Agent, (ii) all reasonable increases in costs and expenses of the Administrative Agent and the Lenders or any Lender (including reasonable counsel fees and expenses, including reasonable allocated costs of in-house legal counsel to the Administrative Agent or any Lender), if any, in connection with the administration of this Agreement after the occurrence of a Default (in the case of the Administrative Agent only) or Event of Default (in the case of the Administrative Agent and the Lenders or any Lender) and so long as the same is continuing, and (iii) all reasonable costs and expenses of the Administrative Agent and the Lenders or any Lender (including reasonable counsel fees and expenses, including reasonable allocated costs of in-house legal counsel to the Administrative Agent or any Lender), if any, in connection with the enforcement of this Agreement and the other instruments and documents to be delivered hereunder. The obligations of the Company under this Section 13.01 shall survive the termination of this Agreement and the payment of the Revolving Credit Loans. It is understood that except as set forth in Section 2.09 the Company shall not be responsible for any costs, fees or expenses related to any assignment or participation by any Lender of any of its rights hereunder (including its Commitment, the Loans made by it or its participation in any Letters or Credit).

SECTION 13.02. Notices. The Administrative Agent or any Lender giving consent or notice to the Company provided for hereunder, shall notify each Lender and the Administrative Agent thereof; provided that consents and notices by a Lender

with respect to Discretionary Loans need only be given to the Administrative Agent. In the event that any Lender shall transfer any Revolving Credit Loan in accordance with Section 13.07(c), it shall immediately so advise the Administrative Agent which shall be entitled to assume conclusively that no transfer of any Revolving Credit Loan has been made by any Lender unless and until the Administrative Agent receives written notice to the contrary. Except as otherwise specifically permitted by this Agreement with respect to oral Notices of Borrowing, notices and other communications provided for herein shall be in writing (including facsimile or electronic communication) and shall be delivered, mailed, or transmitted addressed to the addressees set forth on Exhibit 13.02, attached hereto (or, as to the Company or the Administrative Agent, at such other address as shall be designated by such party to the other parties in a written notice to the other parties and, as to each other party, at such other address as shall be designated by such party in a written notice to the Company and the Administrative Agent). All notices and other communications given to any party hereto in accordance with the provisions of this Agreement shall be deemed to have been given upon receipt The Administrative Agent and the Lenders may at any time waive any requirement for notice hereunder.

SECTION 13.03. Setoff. If one or more Events of Default as defined herein shall occur and be continuing, any Lender which is owed any obligation hereunder (“Depositary”) shall have the right, in addition to all other rights and remedies available to it, and is hereby authorized, to the extent permitted by applicable law, at any time and from time to time, without notice to the Company (any such notice being hereby expressly waived by the Company), to set off and apply any and all deposits (general or special, time or demand, provisional or final) at any time held and other indebtedness (whether or not then due and payable) at any time owing by the Depositary to or for the credit or the account of the Company, against any and all of the obligations of the Company now or hereafter existing under this Agreement, irrespective of whether or not the Depositary shall have made any demand for satisfaction of such obligations and although such obligations may be unmatured. Each Depositary agrees to notify the Company and the Administrative Agent promptly after any such setoff and application; provided that the failure to give such notice shall not affect the validity of such setoff and application. The rights of each Depositary under this Section 13.03 are in addition to other rights and remedies (including, without limitation, other rights of setoff) which such Depositary may have hereunder or under any applicable law. Each Depositary agrees that (i) if it shall exercise any such right of banker’s lien, setoff, counterclaim or similar right pursuant hereto, it will apply the proceeds thereof first to the payment of Revolving Credit Loans and LC Disbursements outstanding hereunder and thereafter to the payment of Discretionary Loans which may be owing to it and (ii) if it shall through the exercise of a right of banker’s lien, setoff, counterclaim or otherwise obtain payment of a proportion of the Revolving Credit Loans and participations in LC Disbursements held by it in excess of the proportion of the Revolving Credit Loans and participations in LC Disbursements of each of the other Depositaries being paid simultaneously, it shall be deemed to have simultaneously purchased from each other Depositary a participation in the Revolving Credit Loans and participations in LC Disbursements owed to such other Depositaries so that the amount of unpaid Revolving Credit Loans and participations therein and participations in LC Disbursements held by all Depositaries shall be proportionate to the original principal amount of the Revolving Credit Loans and

participations in LC Disbursements held by them; and in each case it shall promptly remit to each such Depositary the amount of the participation thus deemed to have been purchased. The Company expressly consents to the foregoing arrangements, and in furtherance thereof, agrees that at such time as an Event of Default hereunder has occurred, the Administrative Agent shall provide to each Lender a schedule setting forth the Commitment of each Lender hereunder to permit each Lender to correctly determine the portion which its Commitment hereunder bears to the aggregate of all Commitments hereunder. If all or any portion of any such excess payment is thereafter recovered from the Depositary which received the same, the purchase provided for herein shall be deemed to have been rescinded to the extent of such recovery, without interest.

SECTION 13.04. Indemnity and Judgments. The Company agrees to indemnify the Administrative Agent and each of the Lenders and the Issuing Lenders and each of their respective directors, officers, employees, agents, attorneys, controlling persons and Affiliates from and hold each harmless against any and all losses, costs, liabilities, claims, damages and expenses incurred by any of the foregoing Persons (collectively, the “indemnified liabilities”), including, without limitation, attorneys’ fees, settlement costs, court costs and other legal expenses, arising out of or by reason of any participation in, or any action or omission in connection with, this Agreement or any Loan (including any Discretionary Loan) hereunder or any Letter of Credit issued hereunder (including any refusal by the Issuing Lender to honor a demand for payment under a Letter of Credit if the documents presented in connection with such demand do not strictly comply with the terms of such Letter of Credit) or any investigation, litigation or other proceedings brought or threatened relating thereto, or to any use or proposed use to be made by the Company or any Subsidiary of the Loans or Letters of Credit, but only to the extent that the indemnified liabilities arise out of or by reason of claims made by Persons other than the Administrative Agent or any Lender; provided that no such Person shall be entitled to be indemnified and held harmless against any such indemnified liabilities arising out of or by reason of the gross negligence or willful misconduct of such Person; provided further, however, that to the extent any indemnified liability arise out of or by reason of claims relating to the negotiation, execution and delivery of this Agreement, the administrative functions of the Administrative Agent under this Agreement, or the performance obligations of the Lenders under this Agreement, the Administrative Agent and the Lenders shall not be entitled to be indemnified and held harmless against any such indemnified liabilities arising out of or by reason of the negligence of the Administrative Agent or any Lender. The obligations of the Company under this Section 13.04 shall survive the termination of this Agreement and the payment of the Revolving Credit Loans.

SECTION 13.05. Interest. Anything in this Agreement to the contrary notwithstanding, the Company shall never be required to pay unearned interest on any Loan and shall never be required to pay interest on any Loan at a rate in excess of the Highest Lawful Rate, and if the effective rate of interest which would otherwise be payable under this Agreement would exceed the Highest Lawful Rate, or if any Lender shall receive any unearned interest or shall receive monies that are deemed to constitute

interest which would increase the effective rate of interest payable under this Agreement to a rate in excess of the Highest Lawful Rate, then (i) in lieu of the amount of interest which would otherwise be payable under this Agreement, the Company shall pay the Highest Lawful Rate, and (ii) any unearned interest paid by the Company or any interest paid by the Company in excess of the Highest Lawful Rate shall be credited on the principal of such Loan, and, thereafter, refunded to the Company. It is further agreed that, without limitation of the foregoing, all calculations of the rate of interest contracted for, charged or received by any Lender under this Agreement, that are made for the purpose of determining whether such rate exceeds the Highest Lawful Rate applicable to such Lender (such Highest Lawful Rate being such Lender’s “Maximum Permissible Rate”), shall be made, to the extent permitted by usury laws applicable to such Lender (now or hereafter enacted), by amortizing, prorating and spreading in equal parts during the period of the full stated term of the Loans all interest at any time contracted for, charged or received by such Lender in connection therewith. If at any time and from time to time (y) the amount of interest payable to any Lender on any date shall be computed at such Lender’s Maximum Permissible Rate pursuant to this Section 13.05 and (z) in respect of any subsequent interest computation period the amount of interest otherwise payable to such Lender would be less than the amount of interest payable to such Lender computed at such Lender’s Maximum Permissible Rate, then the amount of interest payable to such Lender in respect of such subsequent interest computation period shall continue to be computed at such Lender’s Maximum Permissible Rate until the total amount of interest payable to such Lender shall equal the total amount of interest which would have been payable to such Lender if the total amount of interest had been computed without giving effect to this Section.

SECTION 13.06. Governing Law; Submission to Jurisdiction; Venue. (a) THIS AGREEMENT AND OTHER DOCUMENTS EXECUTED IN CONNECTION HEREWITH SHALL BE DEEMED TO BE CONTRACTS AND AGREEMENTS EXECUTED BY THE COMPANY, THE ADMINISTRATIVE AGENT AND THE LENDERS UNDER THE LAWS OF THE STATE OF NEW YORK AND OF THE UNITED STATES AND FOR ALL PURPOSES SHALL BE CONSTRUED IN ACCORDANCE WITH, AND GOVERNED BY, THE LAWS OF SAID STATE AND OF THE UNITED STATES. Without limitation of the foregoing, nothing in this Agreement shall be deemed to constitute a waiver of any rights which any Lender may have under applicable Federal law relating to the amount of interest which such Lender may contract for, take, receive or charge in respect of any Loans, including any right to take, receive, reserve and charge interest at the rate allowed by the laws of the state where such Lender is located. Any legal action or proceeding with respect to this Agreement may be brought in the courts of the State of New York sitting in New York City or of the United States for the Southern District of New York, and by execution and delivery of this Agreement, the Company hereby irrevocably accepts for itself and in respect of its Property, generally and unconditionally, the non-exclusive jurisdiction of the aforesaid courts. The Company further irrevocably consents to the service of process out of any of the aforementioned courts in any such action or proceeding by the mailing of copies thereof by registered or certified mail, postage prepaid, to the Company at its address for notices pursuant to Section 13.02, such service to become effective 15 days after such mailing. Nothing herein shall affect the right of the Administrative Agent or any Lender to serve process in any other manner permitted by law or to commence legal proceedings or otherwise proceed against the Company in any other jurisdiction.

(b) The Company irrevocably waives any objection which it may now or hereafter have to the laying of venue of any of the aforesaid actions or proceedings arising out of or in connection with this Agreement brought in the courts referred to in clause (a) above and hereby further irrevocably waives and agrees not to plead or claim in any such court that any such action or proceeding brought in any such court has been brought in an inconvenient forum.

SECTION 13.07. Survival of Representations and Warranties; Binding Effect; Assignment.

(a) All representations, warranties and covenants contained herein or made in writing by the Company in connection herewith shall survive the execution and delivery of this Agreement and will bind and inure to the benefit of the respective successors and assigns of the parties hereto, whether so expressed or not. This Agreement shall become effective when it shall have been executed by the Company, the Administrative Agent and each of the Lenders, and thereafter shall be binding upon and inure to the benefit of the Company, the Administrative Agent and the Lenders, and their respective successors and assigns, except that the Company shall not have the right to assign its rights or obligations hereunder or any interest herein without the prior written consent of each Lender.

(b) Each Lender may grant participations to one or more Financial Institutions in or to all or any part of its rights and obligations under this Agreement (including, without limitation, all or a portion of its Commitment) pursuant to such participation agreements and certificates as are customary in the banking industry; provided, however, that (i) such Lender’s obligations under this Agreement (including, without limitation its Commitment to the Company hereunder) shall remain unchanged, (ii) such Lender shall remain solely responsible to the other parties hereto for the performance of such obligations and (iii) the Company, the Administrative Agent and the other Lenders shall continue to deal solely and directly with such Lender in connection with such Lender’s rights and obligations under this Agreement, including without limitation, such Lender’s rights under Article XI hereof. In connection with any such participation, each Lender may deliver such financial information concerning the Company and its Subsidiaries to permit such participant to make an informed and independent credit decision concerning such participation; provided, however, that each such Lender shall obtain from each such participant an agreement to the effect that all such information delivered to it in connection with such participation shall be treated in accordance with the provisions of Section 13.14. Upon request of the Company, each Lender shall give prompt notice to the Company of each such participation to Financial Institutions that are not Affiliates of such Lender, identifying each such participant and the interest acquired by each such participant. This Agreement shall not be construed so as to confer any right or benefit upon any Person, including, without limitation, any Financial Institution acquiring a participation in any Loan, other than the parties to this

Agreement, except that any Financial Institution acquiring a participation shall be entitled to the benefits conferred upon the Lenders by Sections 2.01(g)-(h) and 2.02, as limited or modified by Sections 2.01(i) and 2.03 (provided that the cost to the Company is not in excess of what such cost would have been had such participation not been granted).

(c) Subject (except in the case of assignments to Lenders or Lender Affiliates) to the prior written consent of the Company, the Administrative Agent and each Issuing Lender (which consents shall not be unreasonably withheld or delayed), each Lender may assign to a bank or other Person all or a portion of its rights and obligations under this Agreement (including, without limitation, all or a portion of its Commitment); provided, however, that (i) each such assignment shall be of a constant, and not a varying, percentage of all of the assigning Lender’s rights and obligations under this Agreement and shall be in an amount equal to or greater than $5,000,000 of the assigning Lender’s Commitment (except in the case of assignments to Lenders or Lender Affiliates, assignment of the assigning Lender’s entire remaining commitment or unless otherwise agreed by the Company), (ii) the parties to each such assignment shall execute and deliver to the Administrative Agent, for its acceptance and recording in the Register, an Assignment and Acceptance in substantially the form of Exhibit 13.07(c) attached hereto (the “Assignment and Acceptance”), together with a processing and recordation fee of $3,500; provided, however, that such recordation fee shall not be payable if such transfer is made pursuant to Sections 2.01(f) or (h)(vi), and provided, further, that any consent of the Company required under this paragraph shall not be required if an Event of Default has occurred and is continuing. Upon such execution, delivery, acceptance and recording, from and after the effective date specified in each Assignment and Acceptance, which effective date shall be the date on which such Assignment and Acceptance is accepted by the Administrative Agent, (x) the assignee thereunder shall be a party hereto and, to the extent that rights and obligations hereunder have been assigned to it pursuant to such Assignment and Acceptance, have the rights and obligations of a Lender under this Agreement and (y) the Lender assignor thereunder shall, to the extent that rights and obligations hereunder have been assigned by it pursuant to such Assignment and Acceptance, relinquish its rights and be released from its obligations under this Agreement (and, in the case of an Assignment and Acceptance covering all or the remaining portion of an assigning Lender’s rights and obligations under this Agreement, such Lender shall cease to be a party hereto).

(d) Notwithstanding anything to the contrary contained herein, any Lender (a “Granting Lender”) may grant to a special purpose funding vehicle (an “SPC”), identified as such in writing from time to time by the Granting Lender to the Administrative Agent and the Company, the option to provide to the Company all or any part of any Loan that such Granting Lender would otherwise be obligated to make to the Company pursuant to this Agreement; provided that (i) nothing herein shall constitute a commitment by any SPC to make any Loan, (ii) if an SPC elects not to exercise such option or otherwise fails to provide all or any part of such Loan, the Granting Lender shall be obligated to make such Loan pursuant to the terms hereof, and such Granting Lender shall be liable hereunder generally for all acts and omissions of such SPC as if such acts and omissions were committed by such Granting Lender; (iii) the SPC shall have no rights or benefits under this Agreement or any Note or any other related

documents (its rights against such Granting Lender being as set forth in any agreements between such SPC and such Granting Lender), and shall not constitute a “Lender” hereunder; (iv) all amounts payable by the Company to the Granting Lender shall be determined as if such Granting Lender had not granted such option, and as if such Granting Lender were funding each of its Loans and its share of the Commitments in the same way that it is funding the portion of such Loans and its share of the Loan Commitments in which no such option has been granted; and (v) in no event shall a Granting Lender agree with a SPC to take or refrain from taking any action hereunder or under any Note or any other related document, except that such Granting Lender may agree with the SPC that it will not, without the consent of the SPC, agree to any modification, supplement or waiver of this Section 13.07(d). The making of a Loan by an SPC hereunder shall utilize the Commitment of the Granting Lender to the same extent, and as if, such Loan were made by such Granting Lender. Each party hereto hereby agrees that (i) no SPC shall be liable for any indemnity or similar payment obligation under this Agreement (all liability for which shall remain with the Granting Lender), (ii) no SPC shall be entitled to the benefits of Sections 2.01(f), (g) or (h) (or any other increased costs protection provision) other than as contemplated by clause (iv) of the second preceding sentence and (iii) the Granting Lender shall for all purposes, including, without limitation, the approval of any amendment or waiver of any provision of this Agreement or any related document, remain the Lender of record hereunder. In furtherance of the foregoing, each party hereto hereby agrees (which agreement shall survive the termination of this Agreement) that, prior to the date that is one year and one day after the payment in full of all outstanding commercial paper or other senior indebtedness of any SPC, it will not institute against, or join any other person in instituting against, such SPC any bankruptcy, reorganization, arrangement, insolvency or liquidation proceedings under the laws of the United States of any State thereof. In addition, notwithstanding anything to the contrary contained in this Section 13.07(d) any SPC may (i) with notice to, but without the prior written consent of, the Company and the Administrative Agent and without paying any processing fee therefor, assign all or a portion of its interests in any Loan to the Granting Lender or to any financial institutions (consented to by the Company and Administrative Agent) providing liquidity and/or credit support to or for the account of such SPC to support the funding or maintenance of Loans and (ii) disclose on a confidential basis any non-public information relating to its Loans to any rating agency, commercial paper dealer or provider of any surety, guarantee or credit or liquidity enhancement to such SPC, provided that prior to any such disclosure, such rating agency, commercial paper dealer or provider of any surety, guarantee or credit or liquidity enhancement shall undertake in writing to preserve the confidentiality of such information. This Section may not be amended without the written consent of the SPC.

(e) By executing and delivering an Assignment and Acceptance, the Lender assignor thereunder and the assignee thereunder confirm to and agree with each other and the other parties hereto as follows: (i) other than as provided in such Assignment and Acceptance, such assigning Lender makes no representation or warranty and assumes no responsibility with respect to any statements, warranties or representations made in or in connection with this Agreement or the execution, legality, validity, enforceability, genuineness, sufficiency or value of any other instrument or

document furnished pursuant thereto; (ii) such assigning Lender makes no representation or warranty and assumes no responsibility with respect to the financial condition of the Company or the performance or observance by the Company of any of its respective obligations under this Agreement; (iii) such assignee confirms that it has received a copy of this Agreement, together with copies of the financial statements referred to in Sections 6.02 and 8.02 and such other documents and information as it has deemed appropriate to make its own credit analysis and decision to enter into such Assignment and Acceptance; (iv) such assignee will, independently and without reliance upon the Administrative Agent, such assigning Lender or any other Lender and based on such documents and information as it shall deem appropriate at the time, continue to make its own credit decisions in taking or not taking action under this Agreement; (v) such assignee appoints and authorizes the Administrative Agent to take such action as agent on its behalf and to exercise such powers under this Agreement as are delegated to the Administrative Agent by the terms hereof, together with such powers as are reasonably incidental thereto; and (vi) such assignee agrees that it will perform in accordance with its terms all of the obligations which by the terms of this Agreement are required to be performed by it as a Lender.

(f) The Administrative Agent shall maintain at its address referred to in Section 13.02 a copy of each Assignment and Acceptance delivered to and accepted by it and a register for the recordation of the names and addresses of the Lenders and the Commitment of, and principal amount of the Revolving Credit Loans, and Discretionary Loans, if any, owing to, each Lender, and participations in LC Disbursements held by each Lender, in each case from time to time (the “Register”). The entries in the Register shall be conclusive and binding for all purposes, absent manifest error, and the Company, the Administrative Agent and the Lenders may treat each Person whose name is recorded in the Register as a Lender hereunder for all purposes of this Agreement. The Register shall be available for inspection by the Company or any Lender at any reasonable time and from time to time upon reasonable prior notice.

(g) Upon its receipt of an Assignment and Acceptance executed by an assigning Lender, the Administrative Agent shall, if such Assignment and Acceptance has been completed and is in substantially the form of Exhibit 13.07(c) attached hereto, (i) accept such Assignment and Acceptance, (ii) record the information contained therein in the Register and (iii) give prompt notice thereof to the Company.

(h) Notwithstanding any other provision in this Agreement, any Lender may at any time, without the consent of the Company, assign all or any portion of its rights under this Agreement (including, without limitation, the Loans) in favor of any Federal Reserve Lender in accordance with Regulation A of the Board of Governors of the Federal Reserve System; provided that no such assignment shall release a Lender from any of its obligations hereunder or substitute any such Federal Reserve Lender for such Lender as a party hereto. In order to facilitate such an assignment to a Federal Reserve Bank, the Company shall, at the request of the assigning Lender, duly execute and deliver to the assigning Lender a promissory note or notes evidencing the Loans made to the Company by the assigning Lender hereunder.

SECTION 13.08. Counterparts. This Agreement may be executed in several counterparts, and by the parties hereto on separate counterparts. When counterparts executed by all the parties shall have been delivered to the Administrative Agent, this Agreement shall become effective, and at such time the Administrative Agent shall notify the Company and each Lender. Each counterpart, when so executed and delivered, shall constitute an original instrument, and all such separate counterparts shall constitute but one and the same instrument. Delivery of an executed counterpart of a signature page of this Agreement by telecopy shall be effective as delivery of a manually executed counterpart of this Agreement.

SECTION 13.09. Severability. Should any clause, sentence, paragraph or section of this Agreement be judicially declared to be invalid, unenforceable or void, such decision will not have the effect of invalidating or voiding the remainder of this Agreement, and the parties hereto agree that the part or parts of this Agreement so held to be invalid, unenforceable or void will be deemed to have been stricken herefrom and the remainder will have the same force and effectiveness as if such part or parts had never been included herein.

SECTION 13.10. Descriptive Headings. The section headings in this Agreement have been inserted for convenience only and shall be given no substantive meaning or significance whatever in construing the terms and provisions of this Agreement.

SECTION 13.11. Representation of the Lenders; Notification by the Lenders. (a) Each Lender hereby represents and warrants that it is not relying upon any Margin Stock as collateral in extending or maintaining the credit to the Company represented by this Agreement.

(b) Each Lender hereby notifies the Company that pursuant to the requirements of the USA Patriot Act (Title III of Pub. L. 107-56 (signed into law October 26, 2001)) (the “Act”), it is required to obtain, verify and record information that identifies the Company, which information includes the name and address of the Company and other information that will allow such Lender to identify the Company in accordance with the Act.

SECTION 13.12. Final Agreement of the Parties. This Agreement (including the Exhibits hereto) represents the final agreement of the parties and may not be contradicted by evidence of prior, contemporaneous or subsequent oral agreements of the parties. There are no oral agreements between the parties.

SECTION 13.13. Waiver of Jury Trial. THE COMPANY, THE AGENT AND EACH LENDER HEREBY IRREVOCABLY AND UNCONDITIONALLY WAIVE, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT THEY MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY LEGAL ACTION OR PROCEEDING DIRECTLY OR INDIRECTLY ARISING OUT OF, UNDER, OR IN CONNECTION WITH THIS AGREEMENT AND FOR ANY COUNTERCLAIM THEREIN.

SECTION 13.14. Confidentiality. Each of the Administrative Agent, the Issuing Lenders and the Lenders agrees to maintain the confidentiality of the Information (as defined below), except that Information may be disclosed (i) to its and its Affiliates’ directors, officers, employees and agents, including accountants, legal counsel and other advisors (it being understood that the Persons to whom such disclosure is made will be informed of the confidential nature of such Information and instructed to keep such Information confidential), (ii) to the extent requested by any regulatory authority, (iii) to the extent required by applicable laws or regulations or by any subpoena or similar legal process, (iv) to any other party to this Agreement, (v) in connection with the exercise of any remedies hereunder or any suit, action or proceeding relating to this Agreement or the enforcement of rights hereunder, (vi) subject to an agreement containing provisions substantially the same as those of this Section 13.14, to (A) any assignee of or participant in, or any prospective assignee of or participant in, any of its rights or obligations under this Agreement or (B) any actual or prospective counterparty (or its advisors) to any swap or derivative transaction relating to the Company and its obligations, (vii) with the consent of the Company or (viii) to the extent such Information (A) becomes publicly available other than as a result of a breach of this Section or (B) becomes available to the Administrative Agent, any Issuing Lender or any Lender on a nonconfidential basis from a source other than the Company or any of its agents. For the purposes of this Section 14.13, “Information” means all information received from or on behalf of the Company or any of its Subsidiaries relating to the Company, any of its Subsidiaries, or any of their respective businesses. Any Person required to maintain the confidentiality of Information as provided in this Section 13.14 shall be considered to have complied with its obligation to do so if such Person has exercised the same degree of care to maintain the confidentiality of such Information as such Person would accord to its own confidential information.

IN WITNESS WHEREOF this Agreement has been executed by the duly authorized signatories of the parties hereto in several counterparts all as of the day and year first above written.


COX RADIO, INC.,

by		/s/ Richard J. Jacobson
Name:		Richard J. Jacobson
Title:		Treasurer


JPMORGAN CHASE, individually and as Administrative Agent

by		/s/ James L. Stone
Name:		James L. Stone
Title:		Managing Director

BANK OF AMERICA, N.A.,

by		/s/ Richard M. Peck
Name:		Richard M. Peck
Title:		Principal

WACHOVIA BANK, N.A.,

by		/s/ Franklin M. Wessinger
Name:		Franklin M. Wessinger
Title:		Managing Director

CITIBANK, N.A.

by		/s/ Maureen Maroney
Name:		Maureen Maroney
Title:		Director

SUNTRUST BANK

by		/s/ Thomas C. Palmer
Name:		Thomas C. Palmer
Title:		Managing Director

MIZUHO CORPORATE BANK, LTD.

by		/s/ Mark Gronich
Name:		Mark Gronich
Title:		Senior Vice President

REGIONS BANK

by		/s/ J. Timothy Tolex
Name:		J. Timothy Tolex
Title:		Vice President


THE BANK OF NEW YORK

by		/s/ Cynthia L. Rogers
Name:		Cynthia L. Rogers
Title:		Vice President

BANK OF TOKYO-MITSUBISHI TRUST COMPANY

by		/s/ Karen Ossolinski
Name:		Karen Ossolinski
Title:		Vice President

BARCLAYS BANK PLC

by		/s/ L. Peter Yetman
Name:		L. Peter Yetman
Title:		Director

CREDIT SUISSE FIRST BOSTON, ACTING THROUGH ITS CAYMAN ISLANDS BRANCH

by		/s/ Bill O’Daly
Name:		Bill O’Daly
Title:		Director

by		/s/ Doreen B. Welch
Name:		Doreen B. Welch
Title:		Associate

DRESDNER BANK AG, NEW YORK & GRAND CAYMAN BRANCHES

by		/s/ Brian Smith
Name:		Brian Smith
Title:		Managing Director

by		/s/ Brian Schneider
Name:		Brian Schneider
Title:		Vice President


LEHMAN BROTHERS BANK, FSB

by		/s/ Gary T. Taylor
Name:		Gary T. Taylor
Title:		Vice President

MERRILL LYNCH BANK USA

by		/s/ Louis Alder
Name:		Louis Alder
Title:		Director

MORGAN STANLEY BANK

by		/s/ Daniel Twenge
Name:		Daniel Twenge
Title:		Vice President

SOCIETE GENERALE

by		/s/ Mark Vigl
Name:		Mark Vigl
Title:		Managing Director

SUMITOMO MITSUI BANKING CORP., NEW YORK

by		/s/ Edward D. Henderson, Jr.
Name:		Edward D. Henderson, Jr.
Title:		General Manager

THE BANK OF NOVA SCOTIA

by		/s/ Ian A. Hodgart
Name:		Ian A. Hodgart
Title:		Authorized Signatory

THE ROYAL BANK OF SCOTLAND PLC

by		/s/ Maria Amaral-LeBlanc
Name:		Maria Amaral-LeBlanc
Title:		Senior Vice President


UBS LOAN FINANCE LLC

by		/s/ Joselin Fernandes
Name:		Joselin Fernandes
Title:		Associate Director Banking Products Services, US

by		/s/ Doris Mesa
Name:		Doris Mesa
Title:		Associate Director Banking Products Services, US

UFJ BANK LIMITED

by		/s/ Garry Weiss
Name:		Garry Weiss
Title:		Vice President

WILLIAM STREET CREDIT CORPORATION

by		/s/ David Weil
Name:		David Weil
Title:

CHANG HWA COMMERCIAL BANK, LTD.

by		/s/ Ming-Hsien Lin
Name:		Ming-Hsien Lin
Title:		SVP & General Manager

FIFTH THIRD BANK

by		/s/ Kevin C. M. Jones
Name:		Kevin C. M. Jones
Title:		Vice President


FIRST HAWAIIAN BANK

by		/s/ Jeffrey N. Higashi
Name:		Jeffrey N. Higashi
Title:		Assistant Vice President

NATIONAL AUSTRALIA BANK LIMITED, A.P.N. 12004044937

by		/s/ Eduardo Salazar
Name:		Eduardo Salazar
Title:		Senior Vice President

PNC BANK N.A.

by		/s/ Sharon Geffel
Name:		Sharon Geffel
Title:		Vice President

THE NORINCHUKIN BANK, NEW YORK BRANCH

by		/s/ Masanori Shoji
Name:		Masanori Shoji
Title:		Joint General Manager

U.S. BANK NATIONAL ASSOCIATION

by		/s/ Gail F. Scannell
Name:		Gail F. Scannell
Title:		Vice President

EX-31.1 4 dex311.htm SECTION 302 CEO CERTIFICATION Section 302 CEO Certification

EXHIBIT 31.1

CERTIFICATION OF CHIEF EXECUTIVE OFFICER PURSUANT TO RULE 13a-14(a) OF THE SECURITIES EXCHANGE ACT OF 1934

I, Robert F. Neil, Chief Executive Officer of Cox Radio, Inc., certify that:

I have reviewed this quarterly report on Form 10-Q of Cox Radio, Inc.;

Based on my knowledge, this report does not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements made, in light of the circumstances under which such statements were made, not misleading with respect to the period covered by this report;

Based on my knowledge, the financial statements, and other financial information included in this report, fairly present in all material respects the financial condition, results of operations and cash flows of the registrant as of, and for, the periods presented in this report;

The registrant’s other certifying officer and I are responsible for establishing and maintaining disclosure controls and procedures (as defined in Exchange Act Rules 13a-15(e) and 15d-15(e)) [omitted in accordance with section III.E. of SEC Release No. 34-47986] for the registrant and have:

(a)

designed such disclosure controls and procedures, or caused such disclosure controls and procedures to be designed under our supervision, to ensure that material information relating to the registrant, including its consolidated subsidiaries, is made known to us by others within those entities, particularly during the period in which this report is being prepared;

(b)

[omitted in accordance with section III.E. of SEC Release No. 34-47986]

(c)

evaluated the effectiveness of the registrant’s disclosure controls and procedures and presented in this report our conclusions about the effectiveness of the disclosure controls and procedures as of the end of the period covered by this report based on such evaluation; and

(d)

disclosed in this report any change in the registrant’s internal control over financial reporting that occurred during the registrant’s most recent fiscal quarter (the registrant’s fourth fiscal quarter in the case of an annual report) that has materially affected, or is reasonably likely to materially affect, the registrant’s internal control over financial reporting; and

The registrant’s other certifying officer and I have disclosed, based on our most recent evaluation of internal control over financial reporting, to the registrant’s auditors and the audit committee of the registrant’s board of directors (or persons performing the equivalent functions):

(a)

all significant deficiencies and material weaknesses in the design or operation of internal control over financial reporting which are reasonably likely to adversely affect the registrant’s ability to record, process, summarize and report financial information; and

(b)

any fraud, whether or not material, that involves management or other employees who have a significant role in the registrant’s internal control over financial reporting.

Date: August 6, 2004

/s/ Robert F. Neil

Robert F. Neil

Chief Executive Officer

EX-31.2 5 dex312.htm SECTION 302 CFO CERTIFICATION Section 302 CFO Certification

EXHIBIT 31.2

CERTIFICATION OF CHIEF FINANCIAL OFFICER PURSUANT TO RULE 13a-14(a) OF THE SECURITIES EXCHANGE ACT OF 1934

I, Neil O. Johnston, Chief Financial Officer of Cox Radio, Inc., certify that:

I have reviewed this quarterly report on Form 10-Q of Cox Radio, Inc.;

(a)

(b)

[omitted in accordance with section III.E. of SEC Release No. 34-47986]

(c)

(d)

(a)

(b)

any fraud, whether or not material, that involves management or other employees who have a significant role in the registrant’s internal control over financial reporting.

Date: August 6, 2004

/s/ Neil O. Johnston

Neil O. Johnston

Chief Financial Officer

EX-32.1 6 dex321.htm SECTION 906 CEO CERTIFICATION Section 906 CEO Certification

EXHIBIT 32.1

CERTIFICATION OF CHIEF EXECUTIVE OFFICER AND CHIEF FINANCIAL OFFICER PURSUANT TO RULE 13a-14(b) OF THE SECURITIES EXCHANGE ACT OF 1934

In connection with the quarterly report on Form 10-Q of Cox Radio, Inc. (the “Company”) for the period ended June 30, 2004, as filed with the Securities and Exchange Commission as of the date hereof, I, Robert F. Neil, Chief Executive Officer of the Company, and I, Neil O. Johnston, Chief Financial Officer of the Company, hereby certify, pursuant to 18 U.S.C. §1350, that to the best of our knowledge:

(1)

the Report fully complies with the requirements of Section 13(a) of the Securities Exchange Act of 1934, as amended; and

(2)

the information contained in the Report fairly presents, in all material respects, the financial condition and results of operations of the Company.


/s/ Robert F. Neil
Name:		Robert F. Neil
Title:		Chief Executive Officer
Date:		August 6, 2004

/s/ Neil O. Johnston
Name:		Neil O. Johnston
Title:		Chief Financial Officer
Date:		August 6, 2004

A signed original of this written statement required by Section 906 of the Sarbanes-Oxley Act, or other documentation authenticating, acknowledging or otherwise adopting the signature that appears in typed form within the electronic version of this written statement required by Section 906 of the Sarbanes-Oxley Act of 2002, has been provided to Cox Radio and will be retained by Cox Radio and furnished to the Securities and Exchange Commission or its staff upon request.

This certification “accompanies” the quarterly report on Form 10-Q to which it relates, is not deemed filed with the Securities and Exchange Commission, and is not to be incorporated by reference into any filing of Cox Radio under the Securities Act of 1933, as amended, or the Securities Exchange Act of 1934, as amended (whether made before or after the date of the quarterly report on Form 10-Q, irrespective of an general incorporation language contained in such filing).

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