SUBORDINATED INDENTURE

 

 

	Moody’s	7
	Non-payment Default	7
	Officers’ Certificate	7
	Opinion of Counsel	7
	Opinion of Independent Counsel	7
	Original Issue Discount Security	7
	Outstanding	7
	Pari Passu Indebtedness	8
	Paying Agent	8
	Payment Default	8
	Permitted Guarantor Junior Securities	8
	Permitted Junior Securities	8
	Person	8
	Predecessor Security	8
	Preferred Equity Interest	8
	Qualified Equity Interests	9
	Redemption Date	9
	Redemption Price	9
	Regular Record Date	9
	Responsible Officer	9
	Restricted Subsidiary	9
	S&P	9
	Securities	9
	Securities Act	9
	Security Register	9
	Senior Indebtedness	9
	Special Record Date	10
	Stated Maturity	10
	Subordinated Indebtedness	10
	Subsidiary	10
	Successor Security	10
	Temporary Cash Investments	10
	Trust Indenture Act	10
	Trustee	10
	U.S. Person	10
	Unrestricted Subsidiary	10
	Voting Stock	10
Section 102.	Other Definitions.	11
Section 103.	Compliance Certificates and Opinions.	11
Section 104.	Form of Documents Delivered to Trustee.	12
Section 105.	Acts of Holders.	12
Section 106.	Notices, etc., to Trustee, the Company and any Guarantor.	13
Section 107.	Notice to Holders; Waiver.	13
Section 108.	Conflict with Trust Indenture Act.	14
Section 109.	Effect of Headings and Table of Contents.	14
Section 110.	Successors and Assigns.	14
Section 111.	Separability Clause.	14
Section 112.	Benefits of Indenture.	15
Section 113.	Governing Law.	15
Section 114.	Legal Holidays.	15
Section 115.	Schedules and Exhibits.	15
Section 116.	Counterparts.	15

 

ii

 

ARTICLE TWO SECURITY FORMS		15
Section 201.	Forms Generally.	15
Section 202.	Form of and Provisions Required in Global Security.	16
Section 203.	Form of Trustee’s Certificate of Authentication.	17
Section 204.	Form of Guarantee of Each of the Guarantors.	17
ARTICLE THREE THE SECURITIES		17
Section 301.	Amount Unlimited; Issuable in Series.	17
Section 302.	Denominations.	21
Section 303.	Execution, Authentication, Delivery and Dating.	21
Section 304.	Temporary Securities.	22
Section 305.	Global Securities.	22
Section 306.	Registration, Registration of Transfer and Exchange.	23
Section 307.	Mutilated, Destroyed, Lost and Stolen Securities.	24
Section 308.	[RESERVED]	25
Section 309.	Payment of Interest; Interest Rights Preserved.	25
Section 310.	Persons Deemed Owners.	26
Section 311.	Cancellation.	26
Section 312.	Computation of Interest.	27
Section 313.	CUSIP Numbers.	27
ARTICLE FOUR DEFEASANCE AND COVENANT DEFEASANCE		27
Section 401.	Company’s Option to Effect Defeasance or Covenant Defeasance.	27
Section 402.	Defeasance and Discharge.	27
Section 403.	Covenant Defeasance.	28
Section 404.	Conditions to Defeasance or Covenant Defeasance.	28
Section 405.	Deposited Money and U.S. Government Obligations to Be Held in Trust; Other Miscellaneous Provisions.	30
Section 406.	Reinstatement.	30
ARTICLE FIVE REMEDIES		31
Section 501.	Events of Default.	31
Section 502.	Acceleration of Maturity; Rescission and Annulment.	32
Section 503.	Collection of Indebtedness and Suits for Enforcement by Trustee.	33
Section 504.	Trustee May File Proofs of Claim.	34
Section 505.	Trustee May Enforce Claims without Possession of Securities.	34
Section 506.	Application of Money Collected.	35
Section 507.	Limitation on Suits.	35
Section 508.	Unconditional Right of Holders to Receive Principal, Premium and Interest.	36
Section 509.	Restoration of Rights and Remedies.	36
Section 510.	Rights and Remedies Cumulative.	36
Section 511.	Delay or Omission Not Waiver.	36
Section 512.	Control by Holders.	36
Section 513.	Waiver of Past Defaults.	36
Section 514.	Undertaking for Costs.	37
Section 515.	Waiver of Stay, Extension or Usury Laws.	37

 

iii

 

ARTICLE SIX THE TRUSTEE		37
Section 601.	Notice of Defaults.	37
Section 602.	Certain Rights of Trustee.	38
Section 603.	Trustee Not Responsible for Recitals, Dispositions of Securities or Application of Proceeds Thereof.	39
Section 604.	Trustee and Agents May Hold Securities; Collections; etc.	39
Section 605.	Money Held in Trust.	39
Section 606.	Compensation and Indemnification of Trustee and Its Prior Claim.	39
Section 607.	Conflicting Interests.	40
Section 608.	Corporate Trustee Required; Eligibility.	40
Section 609.	Resignation and Removal; Appointment of Successor Trustee.	40
Section 610.	Acceptance of Appointment by Successor.	41
Section 611.	Merger, Conversion, Consolidation or Succession to Business.	43
Section 612.	Preferential Collection of Claims Against Company.	43
ARTICLE SEVEN HOLDERS’ LISTS AND REPORTS BY TRUSTEE AND COMPANY		43
Section 701.	Company to Furnish Trustee Names and Addresses of Holders.	43
Section 702.	Disclosure of Names and Addresses of Holders.	43
Section 703.	Reports by Trustee.	44
Section 704.	Reports by Company and Guarantors.	44
ARTICLE EIGHT CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER OR LEASE		44
Section 801.	Company or Any Guarantor May Consolidate, etc., Only on Certain Terms.	44
Section 802.	Successor Substituted.	46
ARTICLE NINE SUPPLEMENTAL INDENTURES		46
Section 901.	Supplemental Indentures and Agreements without Consent of Holders.	46
Section 902.	Supplemental Indentures and Agreements with Consent of Holders.	47
Section 903.	Execution of Supplemental Indentures and Agreements.	48
Section 904.	Effect of Supplemental Indentures.	48
Section 905.	Conformity with Trust Indenture Act.	48
Section 906.	Reference in Securities to Supplemental Indentures.	48
Section 907.	Effect on Senior Indebtedness.	48
ARTICLE TEN COVENANTS		49
Section 1001.	Payment of Principal, Premium and Interest.	49
Section 1002.	Maintenance of Office or Agency.	49
Section 1003.	Money for Security Payments to Be Held in Trust.	49
Section 1004.	Corporate Existence.	50
Section 1005.	Payment of Taxes and Other Claims.	50
Section 1006.	Maintenance of Properties.	51
Section 1007.	Insurance.	51
Section 1008.	Statement by Officers as to Default.	51
Section 1009.	Waiver of Certain Covenants.	52

 

iv

 

ARTICLE ELEVEN REDEMPTION OF SECURITIES		52
Section 1101.	Rights of Redemption.	52
Section 1102.	Applicability of Article.	52
Section 1103.	Election to Redeem; Notice to Trustee.	52
Section 1104.	Selection by Trustee of Securities to Be Redeemed.	52
Section 1105.	Notice of Redemption.	53
Section 1106.	Deposit of Redemption Price.	53
Section 1107.	Securities Payable on Redemption Date.	53
Section 1108.	Securities Redeemed or Purchased in Part.	54
ARTICLE TWELVE SUBORDINATION OF SECURITIES		54
Section 1201.	Securities Subordinate to Senior Indebtedness.	54
Section 1202.	Payment Over of Proceeds Upon Dissolution, etc.	54
Section 1203.	Suspension of Payment When Senior Indebtedness in Default.	55
Section 1204.	Payment Permitted if No Default.	56
Section 1205.	Subrogation to Rights of Holders of Senior Indebtedness.	57
Section 1206.	Provisions Solely to Define Relative Rights.	57
Section 1207.	Trustee to Effectuate Subordination.	57
Section 1208.	No Waiver of Subordination Provisions.	57
Section 1209.	Notice to Trustee.	58
Section 1210.	Reliance on Judicial Order or Certificate of Liquidating Agent.	59
Section 1211.	Rights of Trustee as a Holder of Senior Indebtedness; Preservation of Trustee’s Rights.	59
Section 1212.	Article Applicable to Paying Agents.	59
Section 1213.	No Suspension of Remedies.	59
Section 1214.	Trustee’s Relation to Senior Indebtedness.	59
ARTICLE THIRTEEN SATISFACTION AND DISCHARGE		60
Section 1301.	Satisfaction and Discharge of Indenture.	60
Section 1302.	Application of Trust Money.	60
ARTICLE FOURTEEN GUARANTEE		61
Section 1401.	Guarantors’ Guarantee.	61
Section 1402.	Continuing Guarantee; No Right of Set-Off; Independent Obligation.	61
Section 1403.	Guarantee Absolute.	62
Section 1404.	Right to Demand Full Performance.	63
Section 1405.	Waivers.	63
Section 1406.	The Guarantors Remain Obligated in Event the Company Is No Longer Obligated to Discharge Indenture Obligations.	64
Section 1407.	Fraudulent Conveyance; Contribution Subrogation.	64
Section 1408.	Guarantee Is in Addition to Other Security.	65
Section 1409.	Release of Security Interests.	65
Section 1410.	No Bar to Further Actions.	65
Section 1411.	Failure to Exercise Rights Shall Not Operate as a Waiver; No Suspension of Remedies.	65
Section 1412.	Trustee’s Duties; Notice to Trustee.	65
Section 1413.	Successors and Assigns.	66
Section 1414.	Release of Guarantee.	66

 

v

 

Section 1415.	Execution of Guarantee.	66
Section 1416.	Guarantee Subordinate to Guarantor Senior Indebtedness.	66
Section 1417.	Payment Over of Proceeds Upon Dissolution of the Guarantor, etc.	67
Section 1418.	Default on Guarantor Senior Indebtedness.	68
Section 1419.	Payment Permitted by Each of the Guarantors if No Default.	68
Section 1420.	Subrogation to Rights of Holders of Guarantor Senior Indebtedness.	68
Section 1421.	Provisions Solely to Define Relative Rights.	68
Section 1422.	Trustee to Effectuate Subordination.	69
Section 1423.	No Waiver of Subordination Provisions.	69
Section 1424.	Notice to Trustee by Each of the Guarantors.	69
Section 1425.	Reliance on Judicial Order or Certificate of Liquidating Agent.	70
Section 1426.	Rights of Trustee as a Holder of Guarantor Senior Indebtedness; Preservation of Trustee’s Rights.	70
Section 1427.	Article Applicable to Paying Agents.	70
Section 1428.	No Suspension of Remedies.	71
Section 1429.	Trustee’s Relation to Guarantor Senior Indebtedness.	71
TESTIMONIUM
SIGNATURES AND SEALS
ACKNOWLEDGMENTS

 

vi

 

Reconciliation and tie between Trust Indenture Act of 1939, as amended,
and Indenture, dated as of                        , 2002

 

 

Note: This reconciliation and tie shall not, for any purpose, be deemed to be a part of this Indenture.

 

 

securities, by contract or otherwise; and the terms “controlling” and “controlled” have meanings correlative to the foregoing.

 

        “Bank Credit Agreement” means the Credit Agreement, dated as of May 28, 1998, between the Company, the subsidiaries of the Company identified on the signature pages thereof under the caption “SUBSIDIARY GUARANTORS,” the lenders named therein and The Chase Manhattan Bank, as agent, as amended by Amendment No. 1 dated as of December 21, 1999 and Amendment No. 2 dated as of July 21, 2000, and as amended and restated pursuant to an Amendment and Restatement dated as of May 9, 2001, as amended by Amendment No. 1 dated as of October 30, 2001, and as such agreement may be further amended, renewed, extended, substituted, refinanced, restructured, replaced, supplemented or otherwise modified from time to time (including, without limitation, any successive renewals, extensions, substitutions, refinancings, restructurings, replacements, supplementations or other modifications of the foregoing). For all purposes under this Indenture, “Bank Credit Agreement” shall include any amendments, renewals, extensions, substitutions, refinancings, restructurings, replacements, supplements or any other modifications that increase the principal amount of the Indebtedness or the commitments to lend thereunder.

 

        “Bankruptcy Law” means Title 11, United States Bankruptcy Code of 1978, as amended, or any similar United States federal or state law relating to bankruptcy, insolvency, receivership, winding-up, liquidation, reorganization or relief of debtors or any amendment to, succession to or change in any such law.

 

        “Bearer Security” means any Security issued hereunder which is payable to bearer.

 

        “Board of Directors” means the board of directors of the Company or any Guarantor, as the case may be, or any duly authorized committee of such board.

 

        “Board Resolution” means a copy of a resolution certified by the Secretary or an Assistant Secretary of the Company or any Guarantor, as the case may be, to have been duly adopted by the Board of Directors of such entity and to be in full force and effect on the date of such certification, and delivered to the Trustee.

 

        “Business Day” means each Monday, Tuesday, Wednesday, Thursday and Friday which is not a day on which banking institutions in The City of New York, the State of Maryland or the city in which the Corporate Trust Office is located are authorized or obligated by law or executive order to close.

 

        “Capital Lease Obligation” means any obligation of the Company and its Restricted Subsidiaries on a Consolidated basis under any capital lease of real or personal property which, in accordance with GAAP, has been recorded as a capitalized lease obligation.

 

        “Cash Equivalents” means, (i) any evidence of Indebtedness with a maturity of one year or less from the date of acquisition issued or directly and fully guaranteed or insured by the United States of America or any agency or instrumentality thereof (provided that the full faith and credit of the United States of America is pledged in support thereof); (ii) certificates of deposit or acceptances with a maturity of one year or less from the date of acquisition of any financial institution that is a member of the Federal Reserve System having combined capital and surplus and undivided profits of not less than $500,000,000; (iii) commercial paper with a maturity of one year or less from the date of acquisition issued by a corporation that is not an Affiliate of the Company organized under the laws of any state of the United States or the District of Columbia and rated A-1 (or higher) according to S&P or P-1 (or higher) according to Moody’s or at least an equivalent rating category of another nationally recognized securities rating agency; (iv) any money market deposit accounts issued or offered by a domestic commercial bank having capital and surplus in excess of $500,000,000; and (v) repurchase agreements and reverse repurchase agreements relating to marketable direct obligations issued or unconditionally guaranteed by the government of the United States of America or issued by any agency thereof and backed by the full faith and credit of the United States of America, in each case maturing within one

 

2

 

year from the date of acquisition; provided that the terms of such agreements comply with the guidelines set forth in the Federal Financial Agreements of Depository Institutions With Securities Dealers and Others, as adopted by the Comptroller of the Currency on October 31, 1985.

 

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

 

        “Commission” means the Securities and Exchange Commission, as from time to time constituted, created under the Exchange Act, 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 Sinclair Broadcast Group, Inc., a corporation incorporated under the laws of Maryland, until a successor Person shall have become such pursuant to the applicable provisions of this Indenture, and thereafter “Company” shall mean such successor Person.

 

        “Company Request” or “Company Order” means a written request or order signed in the name of the Company by any one of its Chairman of the Board, its Vice Chairman, its President or a Vice President (regardless of vice presidential designation), and by any one of its Treasurer, an Assistant Treasurer, its Secretary or an Assistant Secretary, and delivered to the Trustee.

 

        “Consolidated Net Worth” means the consolidated equity of the holders of Equity Interests (excluding Disqualified Equity Interests) of the Company and its Restricted Subsidiaries, as determined in accordance with GAAP consistently applied.

 

        “Corporate Trust Office” means the office of the Trustee or an affiliate or agent thereof at which at any particular time the corporate trust business for the purposes of this Indenture shall be principally administered, which office at the date of execution of this Indenture is located at                        .

 

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

 

        “Depositary” means, with respect to the Securities issued in the form of Global Securities, if any, The Depository Trust Company, a New York limited purpose corporation, its nominees and successors, or any other Person designated as the Depositary by the Company pursuant to Section 305(b), in each case registered as a “clearing agency” under the Exchange Act and maintaining a book-entry system that qualifies for treatment as “registered form” under Section 163(f) of the Code.

 

        “Designated Guarantor Senior Indebtedness” means (i) all Guarantor Senior Indebtedness which guarantees Indebtedness under the Bank Credit Agreement and (ii) any other Guarantor Senior Indebtedness which is incurred pursuant to an agreement (or series of related agreements) simultaneously entered into providing for indebtedness, or commitments to lend, of at least $25,000,000 at the time of determination and is specifically designated in the instrument evidencing such Guarantor Senior Indebtedness or the agreement under which such Senior Indebtedness arises as “Designated Guarantor Senior Indebtedness” by the Guarantor which is the obligor under the Guarantor Senior Indebtedness.

 

        “Designated Senior Indebtedness” means (i) all Senior Indebtedness outstanding under the Bank Credit Agreement and (ii) any other Senior Indebtedness which is incurred pursuant to an agreement (or series of related agreements) simultaneously entered into providing for indebtedness, or commitments to lend, of at least $25,000,000 at the time of determination and is specifically designated in the instrument evidencing such Senior Indebtedness or the agreement under which such Senior Indebtedness arises as “Designated Senior Indebtedness” by the Company.

 

        “Disqualified Equity Interests” means any Equity Interests that, either by their terms or by the terms of any security into which they are convertible or exchangeable or otherwise, are or upon the

 

3

 

happening of an event or passage of time would be required to be redeemed prior to any Stated Maturity, (other than upon a change of control of or sale of assets by the Company in circumstances where the holders of the Securities would have similar rights), of the principal of the Securities or are redeemable at the option of the holder thereof at any time prior to any such Stated Maturity, or are convertible into or exchangeable for debt securities at any time prior to any such Stated Maturity at the option of the holder thereof.

 

        “Equity Interest” of any Person means any and all shares, interests, rights to purchase, warrants, options, participations or other equivalents of or interests in (however designated) corporate stock or other equity participations, including partnership interests, whether general or limited, of such Person, including any Preferred Equity Interests.

 

        “Event of Default” has the meaning specified in Article Five.

 

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

 

        “Existing Notes” means the Company’s 8% Senior Subordinated Notes due 2011, the Company’s 8 3 /4% Senior Subordinated Notes due 2007 and the Company’s 9% Senior Subordinated Notes due 2007.

 

        “Fair Market Value” means, with respect to any asset or property, the sale value that would be obtained in an arm’s-length transaction between an informed and willing seller under no compulsion to sell and an informed and willing buyer under no compulsion to buy.

 

        “Film Contract” means contracts with suppliers that convey the right to broadcast specified films, videotape motion pictures, syndicated television programs or sports or other programming.

 

        “Generally Accepted Accounting Principles” or “GAAP” means generally accepted accounting principles in the United States, consistently applied, which are in effect on the date of this Indenture.

 

        “Global Security” means a Security of any series in book entry form evidencing all or part of the Securities of any series, issued to the Depositary or its nominee and registered in the name of the Depositary or such nominee.

 

        “Guarantee” means, in respect of the Securities of any series, the guarantee, if any, by any Guarantor, if any, of the Company’s Indenture Obligations pursuant to a guarantee given in accordance with Section 301 of this Indenture, including, without limitation, the Guarantees by the Guarantors, if any, included in Article Fourteen of this Indenture.

 

        “Guaranteed Debt” of any Person means, without duplication, all Indebtedness of any other Person referred to in the definition of Indebtedness contained in this Section guaranteed directly or indirectly in any manner by such Person, or in effect guaranteed directly or indirectly by such Person through an agreement (i) to pay or purchase such Indebtedness or to advance or supply funds for the payment or purchase of such Indebtedness, (ii) to purchase, sell or lease (as lessee or lessor) property, or to purchase or sell services, primarily for the purpose of enabling the debtor to make payment of such Indebtedness or to assure the holder of such Indebtedness against loss, (iii) to supply funds to, or in any other manner invest in, the debtor (including any agreement to pay for property or services without requiring that such property be received or such services be rendered), (iv) to maintain working capital or equity capital of the debtor, or otherwise to maintain the net worth, solvency or other financial condition of the debtor or (v) otherwise to assure a creditor against loss; provided that the term “guarantee” shall not include endorsements for collection or deposit, in either case in the ordinary course of business.

 

        “Guarantor” as of any time, means, in respect of a series of Securities, a Subsidiary which provides a Guarantee pursuant to Section 301 of the Indenture or any other guarantor of the Indenture

 

4

 

Obligations. Guarantors, if any, will be listed as signatories to any supplemental indenture of any series of Securities which provide for Guarantees.

 

        “Guarantor Senior Indebtedness” means the principal of, premium, if any, and interest (including interest accruing after the filing of a petition initiating any proceeding under any state, federal or foreign bankruptcy laws whether or not allowable as a claim in such proceeding) on any Indebtedness of any Guarantor (other than as otherwise provided in this definition), whether outstanding on the date of this Indenture or thereafter created, incurred or assumed, and whether at any time owing, actually or contingent, unless, in the case of any particular Indebtedness, the instrument creating or evidencing the same or pursuant to which the same is outstanding expressly provides that such Indebtedness shall not be senior in right of payment to any Guarantee. Without limiting the generality of the foregoing, “Guarantor Senior Indebtedness” shall include (i) the principal of, premium, if any, and interest (including interest accruing after the filing of a petition initiating any proceeding under any state, federal or foreign bankruptcy law whether or not allowable as a claim in such proceeding) and all other obligations of every nature of any Guarantor from time to time owed to the lenders (or their agent) under the Bank Credit Agreement; provided, however, that any Indebtedness under any refinancing, refunding or replacement of the Bank Credit Agreement shall not constitute Guarantor Senior Indebtedness to the extent that the Indebtedness thereunder is by its express terms subordinate to any other Indebtedness of any Guarantor and (ii) Indebtedness under Interest Rate Agreements. Notwithstanding the foregoing, “Guarantor Senior Indebtedness” shall not include (i) Indebtedness evidenced by the Guarantees, (ii) Indebtedness that is subordinate or junior in right of payment to any Indebtedness of any Guarantor, (iii) Indebtedness which when incurred and without respect to any election under Section 1111(b) of Title 11 of the United States Code, is without recourse to any Guarantor, (iv) Indebtedness which is represented by Disqualified Equity Interests, (v) any liability for foreign, federal, state, local or other taxes owed or owing by any Guarantor to the extent such liability constitutes Indebtedness, (vi) Indebtedness of any Guarantor to a Subsidiary or any other Affiliate of the Company or any of such Affiliate’s subsidiaries, (vii) Indebtedness evidenced by any guarantee of any Subordinated Indebtedness or Pari Passu Indebtedness, (viii) that portion of any Indebtedness which at the time of issuance is issued in violation of this Indenture and (ix) Indebtedness owed by any Guarantor for compensation to employees or for services.

 

        “Holder” means a Person in whose name a Security of any series is registered in the Security Register.

 

        “Indebtedness” means, with respect to any Person, without duplication, (i) all indebtedness of such Person for borrowed money or for the deferred purchase price of property or services, excluding any trade payables and other accrued current liabilities arising in the ordinary course of business, but including, without limitation, all obligations, contingent or otherwise, of such Person in connection with any letters of credit issued under letter of credit facilities, acceptance facilities or other similar facilities and in connection with any agreement to purchase, redeem, exchange, convert or otherwise acquire for value any Equity Interests of such Person, or any warrants, rights or options to acquire such Equity Interests, now or hereafter outstanding, (ii) all obligations of such Person evidenced by bonds, notes, debentures or other similar instruments, (iii) all indebtedness created or arising under any conditional sale or other title retention agreement with respect to property acquired by such Person (even if the rights and remedies of the seller or lender under such agreement in the event of default are limited to repossession or sale of such property), but excluding trade payables arising in the ordinary course of business, (iv) all obligations under Interest Rate Agreements of such Person, (v) all Capital Lease Obligations of such Person, (vi) all Indebtedness referred to in clauses (i) through (v) above of other Persons and all dividends of other Persons, the payment of which is secured by (or for which the holder of such Indebtedness has an existing right, contingent or otherwise, to be secured by) any Lien, upon or with respect to property (including, without limitation, accounts and contract rights) owned by such Person, even though such Person has not assumed or become liable for the payment of such

 

5

 

Indebtedness, (vii) all Guaranteed Debt of such Person, (viii) all Disqualified Equity Interests valued at the greater of their voluntary or involuntary maximum fixed repurchase price plus accrued and unpaid dividends, and (ix) any amendment, supplement, modification, deferral, renewal, extension, refunding or refinancing of any liability of the types referred to in clauses (i) through (viii) above; provided, however, that the term Indebtedness shall not include (1) any obligations of the Company and its Restricted Subsidiaries with respect to Film Contracts entered into in the ordinary course of business and (2) the $200 million aggregate liquidation value of the 11 5 /8% High Yield Trust Offered Preferred Securities of Sinclair Capital (the “HYTOPS”) and any other similar instruments issued to replace or refinance the HYTOPS. The amount of Indebtedness of any Person at any date shall be, without duplication, the principal amount that would be shown on a balance sheet of such Person prepared as of such date in accordance with GAAP and the maximum determinable liability of any Guaranteed Debt referred to in clause (vii) above at such date. The Indebtedness of the Company and its Restricted Subsidiaries shall not include any Indebtedness of Unrestricted Subsidiaries so long as such Indebtedness is non-recourse to the Company and the Restricted Subsidiaries. For purposes hereof, the “maximum fixed repurchase price” of any Disqualified Equity Interests which do not have a fixed repurchase price shall be calculated in accordance with the terms of such Disqualified Equity Interests as if such Disqualified Equity Interests were purchased on any date on which Indebtedness shall be required to be determined pursuant to this Indenture, and if such price is based upon, or measured by, the Fair Market Value of such Disqualified Equity Interests, such Fair Market Value to be determined in good faith by the Board of Directors of the issuer of such Disqualified Equity Interests.

 

        “Indenture” means this instrument as originally executed and 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, including, for all purposes of this instrument and any such supplemental indenture, the provisions of the Trust Indenture Act that are deemed to be a part of and govern this instrument and any such supplemental indenture, respectively. The term “Indenture” shall also include the terms of particular series of Securities established as contemplated by Section 301.

 

        “Indenture Obligations” means the obligations of the Company and any other obligor under this Indenture or under the Securities of any series, including any Guarantor, to pay principal, premium, if any, and interest when due and payable under the Securities of that series, and all other amounts due or to become due under or in connection with this Indenture, the Securities of that series, and the performance of all other obligations to the Trustee and the Holders under this Indenture and the Securities of that series, according to the terms hereof and thereof.

 

        “Independent Director” means a director of the Company other than a director (i) who (apart from being a director of the Company or any Subsidiary) is an employee, insider, associate or Affiliate of the Company or a Subsidiary or has held any such position during the previous five years or (ii) who is a director, an employee, insider, associate or Affiliate of another party to the transaction in question.

 

        “Interest Payment Date” means the Stated Maturity of an installment of interest on the Securities.

 

        “Interest Rate Agreements” means one or more of the following agreements which shall be entered into by one or more financial institutions: interest rate protection agreements (including, without limitation, interest rate swaps, caps, floors, collars and similar agreements) and any obligations in respect of any Hedging Agreement, as defined in the Bank Credit Agreement.

 

        “Investments” means, with respect to any Person, directly or indirectly, any advance, loan (including guarantees), or other extension of credit or capital contribution to (by means of any transfer of cash or other property to others or any payment for property or services for the account or use of others), or any purchase, acquisition or ownership by such Person of any Equity Interests, bonds, notes, debentures or other securities or assets issued or owned by any other Person and all other items that would be classified as investments on a balance sheet prepared in accordance with GAAP.

 

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        “Lien” means any mortgage, charge, pledge, lien (statutory or otherwise), privilege, security interest, hypothecation or other encumbrance upon or with respect to any property of any kind (including any conditional sale or other title retention agreement, any leases in the nature thereof, and any agreement to give any security interest), real or personal, movable or immovable, now owned or hereafter acquired.

 

        “Maturity” when used with respect to any Security means the date on which the principal of such Security becomes due and payable as therein provided or as provided in this Indenture, whether at Stated Maturity, or the Redemption Date and whether by declaration of acceleration, call for redemption or otherwise.

 

        “Moody’s” means Moody’s Investors Service, Inc. or any successor rating agency.

 

        “Non-payment Default” means any event (other than a Payment Default) the occurrence of which entitles one or more Persons to accelerate the maturity of any Designated Senior Indebtedness.

 

        “Officers’ Certificate” means a certificate signed by the Chairman of the Board, Vice Chairman, the President or a Vice President (regardless of vice presidential designation), and by the Treasurer, an Assistant Treasurer, the Secretary or an Assistant Secretary, of the Company or any Guarantor, as the case may be, and delivered to the Trustee.

 

        “Opinion of Counsel” means a written opinion of counsel, who may be counsel for the Company, any of the Guarantors or the Trustee, unless an Opinion of Independent Counsel is required pursuant to the terms of this Indenture, and who shall be acceptable to the Trustee.

 

        “Opinion of Independent Counsel” means a written opinion of counsel issued by someone who is not an employee or consultant of the Company or any Guarantor and who shall be acceptable to the Trustee.

 

        “Original Issue Discount Security” means any Security which provides for an amount less than the stated principal amount thereof to be due and payable upon declaration of acceleration of the Maturity thereof pursuant to Section 301.

 

        “Outstanding” when used with respect to Securities of any series means, unless otherwise provided pursuant to Section 301, as of the date of determination, all Securities theretofore authenticated and delivered under this Indenture, except:

 

        (a)  Securities theretofore cancelled by the Trustee or delivered to the Trustee for cancellation;

 

        (b)  Securities, or portions thereof, for whose payment or redemption money in the necessary amount has been theretofore deposited with the Trustee or any Paying Agent (other than the Company or any Affiliate thereof) in trust or set aside and segregated in trust by the Company or such Affiliate (if the Company or such Affiliate shall act as the Paying Agent) for the Holders; provided that if such Securities are to be redeemed, notice of such redemption has been duly given pursuant to this Indenture or provision therefor reasonably satisfactory to the Trustee has been made;

 

        (c)  Securities, except to the extent provided in Sections 402 and 403, with respect to which the Company has effected defeasance or covenant defeasance as provided in Article Four; and

 

        (d)  Securities in exchange for or in lieu of which other Securities have been authenticated and delivered pursuant to this Indenture, other than any such Securities in respect of which there shall have been presented to the Trustee proof reasonably satisfactory to it that such Securities are held by a bona fide purchaser in whose hands the Securities are valid obligations of the Company; 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, Securities owned by the Company, any Guarantor, or any other obligor upon the Securities or any Affiliate of the Company, any Guarantor, or such other obligor shall be disregarded and deemed not to

 

7

 

be Outstanding, except that, in determining whether the Trustee shall be protected in relying upon any such request, demand, authorization, direction, notice, consent or waiver, only Securities which the Trustee knows to be so owned shall be so disregarded. Securities so owned which have been pledged in good faith may be regarded as Outstanding if the pledgee establishes to the reasonable satisfaction of the Trustee the pledgee’s right so to act with respect to such Securities and that the pledgee is not the Company, any Guarantor or any other obligor upon the Securities or any Affiliate of the Company, any Guarantor or such other obligor.

 

        “Pari Passu Indebtedness” means any Indebtedness of the Company or any Guarantor that is pari passu in right of payment to the Securities or any Guarantee of any particular series, as the case may be.

 

        “Paying Agent” means any Person authorized by the Company to pay the principal of, premium, if any, or interest on any Securities on behalf of the Company.

 

        “Payment Default” means any default in the payment of principal of, premium, if any, or interest, on any Designated Senior Indebtedness.

 

        “Permitted Guarantor Junior Securities” means (so long as the effect of any exclusion employing this definition is not to cause the Guarantee to be treated in any case or proceeding or similar event described in clause (a), (b) or (c) of Section 1417 as part of the same class of claims as the Guarantor Senior Indebtedness or any class of claims pari passu with, or senior to, the Guarantor Senior Indebtedness) for any payment or distribution, debt or equity securities of any Guarantor or any successor corporation provided for by a plan of reorganization or readjustment that are subordinated at least to the same extent that the Guarantee is subordinated to the payment of all Guarantor Senior Indebtedness then outstanding; provided that (1) if a new corporation results from such reorganization or readjustment, such corporation assumes any Guarantor Senior Indebtedness not paid in full in cash or Cash Equivalents in connection with such reorganization or readjustment and (2) the rights of the holders of such Guarantor Senior Indebtedness are not, without the consent of such holders, altered by such reorganization or readjustment.

 

        “Permitted Junior Securities” means (so long as the effect of any exclusion employing this definition is not to cause the Securities to be treated in any case or proceeding or similar event described in clause (a), (b) or (c) of Section 1202 as part of the same class of claims as the Senior Indebtedness or any class of claims pari passu with, or senior to, the Senior Indebtedness) for any payment or distribution, debt or equity securities of the Company or any successor corporation provided for by a plan of reorganization or readjustment that are subordinated at least to the same extent that the Securities are subordinated to the payment of all Senior Indebtedness then outstanding; provided that (1) if a new corporation results from such reorganization or readjustment, such corporation assumes any Senior Indebtedness not paid in full in cash or Cash Equivalents in connection with such reorganization or readjustment and (2) the rights of the holders of such Senior Indebtedness are not, without the consent of such holders, altered by such reorganization or readjustment.

 

        “Person” means any individual, corporation, limited liability company, partnership, joint venture, association, joint-stock company, trust, unincorporated organization or government or any agency or political subdivisions thereof.

 

        “Predecessor Security” of any particular Security means every previous Security evidencing all or a portion of the same debt as that evidenced by such particular Security; and, for the purposes of this definition, any Security authenticated and delivered under Section 307 in exchange for a mutilated Security or in lieu of a lost, destroyed or stolen Security shall be deemed to evidence the same debt as the mutilated, lost, destroyed or stolen Security.

 

        “Preferred Equity Interest,” as applied to the Equity Interest of any Person, means an Equity Interest of any class or classes (however designated) which is preferred as to the payment of dividends

 

8

 

or distributions, or as to the distribution of assets upon any voluntary or involuntary liquidation or dissolution of such person, over Equity Interests of any other class of such Person.

 

        “Qualified Equity Interests” of any Person means any and all Equity Interests of such Person other than Disqualified Equity Interests.

 

        “Redemption Date” when used with respect to any Security to be redeemed pursuant to any provision in this Indenture means the date fixed for such redemption by or pursuant to this Indenture.

 

        “Redemption Price” when used with respect to any Security to be redeemed pursuant to any provision in this Indenture means the price at which it is to be redeemed pursuant to this Indenture.

 

        “Regular Record Date” for the interest payable on any Interest Payment Date means the 15th day (whether or not a Business Day) next preceding such Interest Payment Date.

 

        “Responsible Officer” when used with respect to the Trustee means any officer assigned to the Corporate Trust Office or the agent of the Trustee appointed hereunder, including any vice president, assistant vice president, assistant secretary, or any other officer or assistant officer of the Trustee or the agent of the Trustee appointed hereunder to whom any corporate trust matter is referred because of his or her knowledge of and familiarity with the particular subject.

 

        “Restricted Subsidiary” means a Subsidiary subject to the covenants or events of default under the agreements governing other indebtedness of the Company.

 

        “S&P” means Standard & Poor’s Ratings Service, a division of the McGraw Hill Companies, or any successor rating agency.

 

        “Securities” has the meaning specified in the Recitals.

 

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

 

        “Security Register” and “Security Registrar” have the respective meanings specified in Section 306.

 

        “Senior Indebtedness” means the principal of, premium, if any, and interest (including interest accruing after the filing of a petition initiating any proceeding under any state, federal or foreign bankruptcy law whether or not allowable as a claim in such proceeding) on any Indebtedness of the Company (other than as otherwise provided in this definition), whether outstanding on the date of this Indenture or thereafter created, incurred or assumed, and whether at any time owing, actually or contingent, unless, in the case of any particular Indebtedness, the instrument creating or evidencing the same or pursuant to which the same is outstanding expressly provides that such Indebtedness shall not be senior in right of payment to the Securities. Without limiting the generality of the foregoing, “Senior Indebtedness” shall include the principal of, premium, if any, and interest (including interest accruing after the filing of a petition initiating any proceeding under any state, federal or foreign bankruptcy law whether or not allowable as a claim in such proceeding) and all other obligations of every nature of the Company from time to time owed to the lenders (or their agent) under the Bank Credit Agreement; provided, however, that any Indebtedness under any refinancing, refunding or replacement of the Bank Credit Agreement shall not constitute Senior Indebtedness to the extent that the Indebtedness thereunder is by its express terms subordinate to any other Indebtedness of the Company, and (ii) Indebtedness under Interest Rate Agreements. Notwithstanding the foregoing, “Senior Indebtedness” shall not include (i) Indebtedness evidenced by the Securities, (ii) Indebtedness that is subordinate or junior in right of payment to any Indebtedness of the Company, (iii) Indebtedness which when incurred and without respect to any election under Section 1111(b) of Title 11 of the United States Code, is without recourse to the Company, (iv) Indebtedness which is represented by Disqualified Equity Interests, (v) any liability for foreign, federal, state, local or other taxes owed or owing by the Company to the extent such liability constitutes Indebtedness, (vi) Indebtedness of the Company to a Subsidiary or any other Affiliate of the Company or any of such Affiliate’s subsidiaries,

 

9

 

(vii) that portion of any Indebtedness which at the time of issuance is issued in violation of this Indenture and (viii) Indebtedness owed by the Company for compensation to employees or for services.

 

        “Special Record Date” for the payment of any Defaulted Interest means a date fixed by the Trustee pursuant to Section 309.

 

        “Stated Maturity” when used with respect to any Indebtedness or any installment of interest thereon, means the date specified in such Indebtedness as the fixed date on which the principal of such Indebtedness or such installment of interest is due and payable.

 

        “Subordinated Indebtedness” means Indebtedness of the Company or any Guarantor subordinated in right of payment to Senior Indebtedness or Guarantor Senior Indebtedness, as the case may be.

 

        “Subsidiary” means any Person a majority of the equity ownership or the Voting Stock of which is at the time owned, directly or indirectly, by the Company or by one or more other Subsidiaries, or by the Company and one or more other Subsidiaries.

 

        “Successor Security” of any particular Security means every Security issued after, and evidencing all or a portion of the same debt as that evidenced by, such particular Security. For the purposes of this definition, any Security authenticated and delivered under Section 307 in exchange for or in lieu of a mutilated, destroyed, lost or stolen Security shall be deemed to evidence the same debt as the mutilated, destroyed, lost or stolen Security.

 

        “Temporary Cash Investments” means (i) any evidence of Indebtedness, maturing not more than one year after the date of acquisition, issued by the United States of America, or an instrumentality or agency thereof and guaranteed fully as to principal, premium, if any, and interest by the United States of America, (ii) any certificate of deposit, maturing not more than one year after the date of acquisition, issued by, or time deposit of, a commercial banking institution (including the Trustee) that is a member of the Federal Reserve System and that has combined capital and surplus and undivided profits of not less than $500,000,000, whose debt has a rating, at the time as of which any investment therein is made, of “P-1” (or higher) according to Moody’s or “A-1” (or higher) according to S&P, (iii) commercial paper, maturing not more than one year after the date of acquisition, issued by a corporation (other than an Affiliate or Subsidiary of the Company) (including the Trustee) organized and existing under the laws of the United States of America with a rating, at the time as of which any investment therein is made, of “P-1” (or higher) according to Moody’s or “A-1” (or higher) according to S&P and (iv) any money market deposit accounts issued or offered by a domestic commercial bank (including the Trustee) having capital and surplus in excess of $500,000,000.

 

        “Trust Indenture Act” means the Trust Indenture Act of 1939, as amended.

 

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

 

        “U.S. Person” means a citizen or resident of the United States, a corporation, partnership or other entity created or organized in or under the laws of the United States or any political subdivision thereof, or an estate or trust, the income of which is subject to United States federal income taxation regardless of its source.

 

        “Unrestricted Subsidiary,” with respect to any series of Securities, shall have the meaning as set forth pursuant to Section 301.

 

        “Voting Stock” means stock of the class or classes pursuant to which the holders thereof have the general voting power under ordinary circumstances to elect at least a majority of the board of directors,

 

10

 

managers or trustees of a corporation (irrespective of whether or not at the time stock of any other class or classes shall have or might have voting power by reason of the happening of any contingency).

 

        Section 102. Other Definitions.

 

Term		Defined in Section
“Act”		105
“Agent Members”		305
“Bearer Global Security”		305
“covenant defeasance”		403
“Defaulted Interest”		309
“defeasance”		402
“Defeasance Redemption Date”		404
“Defeased Securities”		401
“Global Security”		202
“Initial Blockage Period”		1203
“Payment Blockage Period”		1203
“Physical Securities”		305
“Senior Representative”		1203
“Surviving Entity”		801
“U.S. Government Obligations”		404

 

        Section 103. Compliance Certificates and Opinions.

 

        Upon any application or request by the Company to the Trustee to take any action under any provision of this Indenture, the Company, any Guarantor and any other obligor on the Securities of any series shall furnish to the Trustee an Officers’ Certificate stating that all conditions precedent, if any, provided for in this Indenture (including any covenants compliance with which constitutes a condition precedent) 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, certificates and/or opinions is specifically required by any provision of this Indenture relating to such particular application or request, no additional certificate or opinion need be furnished.

 

        Every certificate or Opinion of Counsel with respect to compliance with a condition or covenant provided for in this Indenture shall include:

 

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

 

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

 

        (c)  a statement that, in the opinion of 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 covenant or condition has been complied with; and

 

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

 

11

 

        (d)  If the Company shall solicit from the Holders of Securities of one or more series any request, demand, authorization, direction, notice, consent, waiver or other Act, the Company may, at its option, by or pursuant to a Board Resolution, fix in advance a record date for the determination of such Holders entitled to give such request, demand, authorization, direction, notice, consent, waiver or other Act, but the Company shall have no obligation to do so. Notwithstanding Trust Indenture Act Section 316(c), any such record date shall be the record date specified in or pursuant to such Board Resolution, which shall be a date not more than 30 days prior to the first solicitation of Holders generally in connection therewith and no later than the date such solicitation is completed.

 

        In the absence of any such record date fixed by the Company, regardless as to whether a solicitation of the Holders of Securities of one or more series is occurring on behalf of the Company or any Holder, the Trustee may, at its option, fix in advance a record date for the determination of such Holders entitled to give such request, demand, authorization, direction, notice, consent, waiver or other Act, but the Trustee shall have no obligation to do so. Any such record date shall be a date not more than 30 days prior to the first solicitation of Holders generally in connection therewith and no later than a date such solicitation is completed.

 

        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 record at the close of business on such record date shall be deemed to be Holders for purposes of determining whether Holders of Securities of one or more series of the requisite proportion of Securities then Outstanding have authorized or agreed or consented to such request, demand, authorization, direction, notice, consent, waiver or other Act, and for this purpose the Securities of any series then Outstanding shall be computed as of such record date; provided that no such request, demand, authorization, direction, notice, consent, waiver or other Act by the Holders on such record date 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.

 

        Section 106. Notices, etc., to Trustee, the Company and any Guarantor.

 

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

 

        (a)  the Trustee by any Holder or by the Company or any Guarantor or any other obligor of the Securities or a Senior Representative or holder of Senior Indebtedness shall be sufficient for every purpose hereunder if in writing and mailed, first-class postage prepaid, or delivered by recognized overnight courier, to or with the Trustee at the Corporate Trust Office, Attention: Corporate Trust Division, or at any other address previously furnished in writing to the Holders, the Company, any Guarantor, any other obligor of the Securities or a Senior Representative or holder of Senior Indebtedness by the Trustee; or

 

        (b)  the Company or any Guarantor shall be sufficient for every purpose (except as provided in Section 501(c)) hereunder or pursuant to Section 301 if in writing and mailed, first-class postage prepaid, or delivered by recognized overnight courier, to the Company or such Guarantor addressed to it at Sinclair Broadcast Group, Inc.,10706 Beaver Dam Road; Hunt Valley, Maryland 21030, Attention: President, or at any other address previously furnished in writing to the Trustee by the Company.

 

        Section 107. Notice to Holders; Waiver.

 

        Where this Indenture or the Securities of any series provides for notice to Holders of the Securities of any series of any event, such notice shall be sufficiently given (unless otherwise herein expressly provided) if in writing and mailed, first-class postage prepaid, or delivered by recognized overnight courier, to each Holder 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

 

13

 

of such notice. In any case where notice to Holders is given by mail, neither the failure to mail such notice, nor any defect in any notice so mailed, to any particular Holder shall affect the sufficiency of such notice with respect to other Holders. Any notice when mailed to a Holder in the aforesaid manner shall be conclusively deemed to have been received by such Holder whether or not actually received by such Holder. 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 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. Notices to Holders of Bearer Securities shall be provided as may be specified pursuant to Section 301.

 

        In case by reason of the suspension of regular mail service or by reason of any other cause, it shall be impracticable to mail notice of any event as required by any provision of this Indenture, then any method of giving such notice as shall be reasonably satisfactory to the Trustee shall be deemed to be a sufficient giving of such notice.

 

        Section 108. Conflict with Trust Indenture Act.

 

        If any provision hereof limits, qualifies or conflicts with any provision of the Trust Indenture Act or another provision which is required or deemed to be included in this Indenture by any of the provisions of the Trust Indenture Act, the provision or requirement of the Trust Indenture Act shall control. If any provision of this Indenture modifies or excludes any provision of the Trust Indenture Act that may be so modified or excluded, the latter provision shall be deemed to apply to this Indenture as so modified or to be excluded, as the case may be.

 

        Section 109. 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 110. Successors and Assigns.

 

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

 

        Section 111. Separability Clause.

 

        In case any provision in this Indenture or in the Securities of any series or in any Guarantees 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.

 

14

 

        Section 112. Benefits of Indenture.

 

        Nothing in this Indenture or in the Securities or the Guarantees, express or implied, shall give to any Person (other than the parties hereto and their successors hereunder, any Paying Agent, the Holders and the holders of Senior Indebtedness or Guarantor Senior Indebtedness) any benefit or any legal or equitable right, remedy or claim under this Indenture.

 

        Section 113. Governing Law.

 

        THIS INDENTURE AND THE SECURITIES OF ANY SERIES AND ANY INTEREST COUPONS APPERTAINING THERETO AND ANY GUARANTEES SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK (WITHOUT GIVING EFFECT TO THE CONFLICTS OF LAWS PRINCIPLES THEREOF).

 

        Section 114. Legal Holidays.

 

        In any case where any Interest Payment Date, Redemption Date or Stated Maturity of any Security of any series shall not be a Business Day, then (notwithstanding any other provision of this Indenture or of the Securities) payment of interest or principal or premium, if any, need not be made on such date, but may be made on the next succeeding Business Day with the same force and effect as if made on the Interest Payment Date or Redemption Date, or at the Stated Maturity and no interest shall accrue with respect to such payment for the period from and after such Interest Payment Date, Redemption Date or Stated Maturity, as the case may be, to the next succeeding Business Day.

 

        Section 115. Schedules and Exhibits.

 

        All schedules and exhibits attached hereto are by this reference made a part hereof with the same effect as if herein set forth in full.

 

        Section 116. Counterparts.

 

        This Indenture may be executed in any number of counterparts, each of which shall be an original; but such counterparts shall together constitute but one and the same instrument.

 

ARTICLE TWO

 

SECURITY FORMS

 

        Section 201. Forms Generally.

 

        The Securities of each series and the Trustee’s certificate of authentication and the interest coupons, if any, to be attached thereto shall be in substantially such form as shall be established by or pursuant to a Board Resolution or in one or more indentures supplemental hereto, in each case with such appropriate insertions, omissions, substitutions and other variations as are required or permitted by this Indenture, and may have such letters, numbers or other marks of identification and such legends or endorsements placed thereon as may be required to comply with the rules of any applicable securities exchange, organizational document, governing instrument or law or as may, consistently herewith, be determined by the officers executing the Securities of that series and interest coupons, if any, to be attached thereto, as evidenced by their execution of the Securities and interest coupons, if any. If temporary Securities of any series are issued as permitted by Section 304, the form thereof also shall be established as provided in the preceding sentence. If the forms of Securities and interest coupons, if any, of any series are established by, or by action taken pursuant to, a Board Resolution, a copy of the Board Resolution together with an appropriate record of any such action taken pursuant thereto, including a copy of the approved form of Securities or interest coupons, if any, shall be delivered to the Trustee at or prior to the delivery of the Company Order contemplated by Section 303

 

15

 

for the authentication and delivery of such Securities. Any portion of the text of any Security may be set forth on the reverse thereof, with an appropriate reference thereto on the face of the Security.

 

        Unless otherwise provided pursuant to Section 301, Bearer Securities, if any, shall have interest coupons attached.

 

        The definitive Securities of any series shall be printed, lithographed or engraved or produced by any combination of these methods or may be produced in any other manner permitted by the rules of any securities exchange on which the Securities of that series may be listed, all as determined by the officers executing such Securities, as evidenced by their execution of such Securities.

 

        Section 202. Form of and Provisions Required in Global Security.

 

        If Securities of or within a series are issuable in whole or in part in global form, such Global Securities will be subject to Sections 301, 303, 304 (if applicable), 305 and 306.

 

        Unless otherwise provided pursuant to Section 301, any Global Security issued hereunder shall bear a legend in substantially the following form: THIS SECURITY IS A GLOBAL SECURITY WITHIN THE MEANING OF THE INDENTURE HEREINAFTER REFERRED TO AND IS REGISTERED IN THE NAME OF A DEPOSITARY OR A NOMINEE OF A DEPOSITARY. THIS SECURITY IS EXCHANGEABLE FOR SECURITIES REGISTERED IN THE NAME OF A PERSON OTHER THAN THE DEPOSITARY OR ITS NOMINEE ONLY IN THE LIMITED CIRCUMSTANCES DESCRIBED IN THE INDENTURE AND MAY NOT BE TRANSFERRED EXCEPT AS A WHOLE BY THE DEPOSITARY TO A NOMINEE OF THE DEPOSITARY OR BY A NOMINEE OF THE DEPOSITARY TO THE DEPOSITARY OR ANOTHER NOMINEE OF THE DEPOSITARY, EXCEPT IN THE LIMITED CIRCUMSTANCES DESCRIBED IN THE INDENTURE.

 

        If The Depository Trust Company is acting as the Depositary, insert—UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION (“DTC”), TO THE COMPANY OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT AND ANY SUCH CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.

 

16

 

        Section 203. Form of Trustee’s Certificate of Authentication.

 

        Unless otherwise provided pursuant to Section 301, the Trustee’s certificate of authentication shall be included on the Securities and shall be substantially in the form as follows:

 

        TRUSTEE’S CERTIFICATE OF AUTHENTICATION.

 

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

 

	[                        ],
	As Trustee
	By:
	Authorized Signatory

 

        Section 204. Form of Guarantee of Each of the Guarantors.

 

        If a Guarantee is to be endorsed on a Security of any series, the form of Guarantee shall be set forth on the Securities substantially as follows:

 

GUARANTEES

 

        For value received, each of the undersigned hereby unconditionally guarantees, jointly and severally, to the holder of this Security the payment of principal of, premium, if any, and interest on this Security in the amounts and at the time when due and interest on the overdue principal and interest, if any, of this Security, if lawful, and the payment or performance of all other obligations of the Company under the Indenture or the Securities, to the holder of this Security and the Trustee, all in accordance with and subject to the terms and limitations of this Security and Article Fourteen of the Indenture. These Guarantees will not become effective until the Trustee duly executes the certificate of authentication on this Security. The Indebtedness evidenced by these Guarantees is, to the extent and in the manner provided in the Indenture, subordinate and subject in right of payment to the prior payment in full of all Guarantor Senior Indebtedness (as defined in the Indenture), whether Outstanding on the date of the Indenture or thereafter, and these Guarantees are issued subject to such provisions.

 

			[LIST OF GUARANTORS]
Attest			By
	Name:			Name:
	Title:			Title:

 

ARTICLE THREE

 

THE SECURITIES

 

        Section 301. Amount Unlimited; Issuable in Series.

 

        (a)  The aggregate principal amount of Securities which may be authenticated and delivered under this Indenture is unlimited. The Securities may be issued from time to time in one or more series.

 

        (b)  The following matters shall be established with respect to each series of Securities issued hereunder (i) by a Board Resolution, (ii) by action taken pursuant to a Board Resolution and (subject

 

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to Section 303) set forth, or determined in the manner provided, in an Officers’ Certificate or (iii) in one or more indentures supplemental hereto:

 

        (i) the title of the Securities of the series (which title shall distinguish the Securities of the series from all other series of Securities);

 

        (ii) any limit upon the aggregate principal amount of the Securities of the series which may be authenticated and delivered under this Indenture (which limit shall not pertain to Securities authenticated and delivered upon registration of transfer of, or in exchange for, or in lieu of, other Securities of the series pursuant to Section 304, 306, 307, 906 or 1108 or any Securities of the series that, pursuant to Section 303, are deemed never to have been authenticated and delivered hereunder);

 

        (iii) the date or dates on which the principal of and premium, if any, on the Securities of the series will mature or the method or methods of determining such date or dates;

 

        (iv) the rate or rates (which may be fixed or variable) at which the Securities of the series shall bear interest, if any, or the method or methods of calculating such rate or rates;

 

        (v) the date or dates from which such interest, if any, shall accrue or the method or methods by which such date or dates shall be determined;

 

        (vi) the date or dates on which interest, if any, shall be payable and the record date or dates therefor, and the basis upon which interest shall be calculated if other than that of a 360-day year of twelve 30-day months;

 

        (vii) the place or places where the principal of, premium, if any, and interest, if any, on Securities of the series shall be payable, or at which Securities of the series may be surrendered for registration of transfer and exchange;

 

        (viii) the period or periods within which, the price or prices at which, the currency or currencies if other than in United States dollars (including currency unit or units) in which, and the other terms and conditions upon which, Securities of the series may be redeemed, in whole or in part, at the option of the Company;

 

        (ix) the obligation, if any, of the Company to redeem or purchase Securities of the series pursuant to any sinking fund or analogous provisions or upon the happening of a specified event or at the option of a Holder thereof and the period or periods within which, the price or prices at which, the currency or currencies (if other than United States dollars) (including currency unit or units) in which, and the other terms and conditions upon which, Securities of the series shall be redeemed or purchased, in whole or in part, pursuant to such obligation;

 

        (x) the denominations in which Securities of the series are authorized to be issued;

 

        (xi) the currency or currency unit in which such Securities may be denominated and/or the currency or currencies (including currency unit or units) in which principal of, premium, if any, and interest, if any, on such Securities will be payable and whether the Company or the holders of any such Securities may elect to receive payments in respect of such Securities in a currency or currency unit other than that in which such Securities are stated to be payable;

 

        (xii) if the amount of payments of principal of, premium, if any, and interest, if any, on the Securities of the series may be determined with reference to an index, formula or other method (which index, formula or method may be based, without limitation, on a currency or currencies (including currency unit or units) other than that in which the Securities of the series are denominated or designated to be payable), the manner in which such amounts will be determined;

 

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        (xiii) if other than the entire principal amount thereof, the portion of the principal amount of such Securities of the series which shall be payable upon declaration of acceleration thereof pursuant to Section 502 or the method by which such portion shall be determined;

 

        (xiv) provisions, if any, granting special rights to the Holders of Securities of the series upon the occurrence of such events as may be specified;

 

        (xv) any addition to, modifications of or deletion from the Events of Default set forth in Section 501 or covenants of the Company set forth in Article 9 pertaining to the Securities of the series;

 

        (xvi) the circumstances, if any, under which the Company will pay additional amounts on the Securities of that series held by a Person who is not a U.S. Person (including any modification of the definition of such term) in respect of taxes, assessments or similar charges;

 

        (xvii) whether Securities of the series shall be issuable in registered or bearer form (with or without interest coupons), or both, and any restrictions applicable to the offering, sale, transfer or delivery of Bearer Securities and, if other than as provided in Section 306, the terms upon which Bearer Securities of a series may be exchanged for Securities of the same series and vice versa;

 

        (xviii) the date as of which any Bearer Securities of the series and any temporary Global Security representing Outstanding Securities of the series shall be dated, if other than the date of original issuance of the first Security of the series to be issued;

 

        (xix) the forms of the Securities and interest coupons, if any, of the series;

 

        (xx) if other than the Trustee, the identity of the Registrar and any Paying Agent;

 

        (xxi) the application, if any, of such means of defeasance or covenant defeasance as may be specified for such Securities of that series;

 

        (xxii) whether such Securities of the series are to be issued in whole or in part in the form of one or more in temporary or permanent Global Securities, and, if so, the identity of the Depositary or its nominee, if any, for such Global Securities, and the circumstances under which the beneficial owners of interests in any Securities of the series in global form may exchange such interests for certificated Securities of that series, to be registered in the names of or to be held by such beneficial owners or their nominees;

 

        (xxiii) if the Securities of the series may be issued or delivered, or any installment of principal or interest is payable, only upon receipt of certain certificates or other documents or satisfaction of other conditions in addition to those specified in this Indenture, the form and terms of such certificates, documents or conditions;

 

        (xxiv) if other than as provided in Section 309, the Person to whom any interest on any Security of the series shall be payable and the manner in which, or the Person to whom, any interest on any Bearer Securities of the series shall be payable;

 

        (xxv) any definitions for Securities of that series which are not to be as set forth in this Indenture, including, without limitation, the definition of “Unrestricted Subsidiary” to be used for that series;

 

        (xxvi) the relative degree to which Debt Securities of the series offered shall be senior to or be subordinated to other series of Securities, and to other indebtedness of the Company, in right of payment, whether such other series of Securities and other indebtedness are outstanding or not;

 

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        (xxvii) whether such Debt Securities are Guaranteed and, if so, the identity of the Guarantors and the terms of such Guarantees (including whether and the extent to which the Guarantees are subordinated to the other indebtedness of the Guarantors);

 

        (xxviii) the terms, if any, upon which the Company may be able to redeem such Debt Securities prior to their maturity including the dates on which such redemptions may be made and the price at which such redemptions may be made;

 

        (xxix) the terms, if any, upon which such Securities of any series may be converted or exchanged into or for Common Stock, Preferred Stock or other securities or property of the Company;

 

        (xxx) any restrictions on the registration, transfer or exchange of the Securities; and

 

        (xxxi) any other terms not inconsistent with the terms of the Indenture pertaining to the Securities which may be required by or advisable under United States laws or regulations or advisable (as determined by the Company) in connection with the marketing of Securities of the series.

 

        (c)  All provisions set forth in this Indenture shall be applicable to each series of Debt Securities issued hereunder unless otherwise specified in a supplemental indenture entered into pursuant to this Section 301, in which case the provisions of the supplemental indenture shall govern and references herein to “unless otherwise provided pursuant to Section 301” are not intended to limit what provisions may be amended pursuant to any supplemental indenture. Subject to Sections 108, 113 and any controlling provision of the Trust Indenture Act, in the event of any inconsistency between the terms of this Indenture and the terms applicable to a series of Securities established in the manner permitted by this Section 301, the (i) Board Resolution, (ii) Officers’ Certificate or (iii) supplemental indenture setting forth such conflicting term shall prevail.

 

        (d)  All Securities of any one series and interest coupons, if any, appertaining thereto shall be substantially identical except as to denomination and except as may otherwise be provided (i) by a Board Resolution, (ii) by action taken pursuant to a Board Resolution and (subject to Section 303) set forth, or determined in the manner provided, in the related Officers’ Certificate or (iii) in an indenture supplemental hereto. All Securities of any one series need not be issued at the same time and, unless otherwise provided, a series may be reopened, without the consent of the Holders, for issuances of additional Securities of that series.

 

        (e)  If any of the terms of the Securities of any series are established by action taken pursuant to a Board Resolution, a copy of such Board Resolution shall be delivered to the Trustee at or prior to the delivery of the Officers’ Certificate setting forth, or providing the manner for determining, the terms of the Securities of that series, and an appropriate record of any action taken pursuant thereto in connection with the issuance of any Securities of that series shall be delivered to the Trustee prior to the authentication and delivery thereof.

 

        (f)    Unless otherwise provided pursuant to Section 301, payment of the principal of, premium, if any, and interest on the Securities shall be made at the office or agency of the Company maintained for that purpose as the Company may designate pursuant to Section 301, in the United States, in such coin or currency of the United States of America as at the time of payment is legal tender for payment of public and private debts; provided, however, that at the option of the Company payment of interest may be made (i) by check mailed to addresses of the Persons entitled thereto as such addresses shall appear on the Security Register or (ii) by wire transfer in immediately available funds to an account specified (not later than one Business Day prior to the applicable Interest Payment Date) by the Holder thereof. If any of the Securities are held by the Depository, payments of interest may be made by wire transfer to the Depository. Procedures with respect to payments in connection with Bearer Securities shall be established pursuant to Section 301.

 

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        Section 302. Denominations.

 

        Unless otherwise provided pursuant to Section 301, the Securities shall be issuable only in registered form without coupons and only in denominations of $1,000 and any integral multiple of $1000, and Bearer Securities shall be issued in denominations of $5,000 or any integral multiple of $5,000. Securities denominated in a foreign currency shall be issuable in such denominations as are established with respect to such Securities in or pursuant to this Indenture.

 

        Section 303. Execution, Authentication, Delivery and Dating.

 

        Unless otherwise provided pursuant to Section 301, the Securities of any series shall be executed on behalf of the Company by one of its Chairman of the Board, its President or one of its Vice Presidents under its corporate seal reproduced thereon attested by its Secretary or one of its Assistant Secretaries.

 

        Securities and interest coupons, if any, on Securities 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 or did not hold such offices on the date of such Securities.

 

        At any time and from time to time after the execution and delivery of this Indenture, the Company may deliver Securities, together with any interest coupons appertaining thereto, of any series executed by the Company to the Trustee for authentication, together with a Company Order for the authentication and delivery of such Securities; and the Trustee in accordance with such Company Order shall authenticate and deliver such Securities as provided in this Indenture and not otherwise.

 

        Each Security shall be dated the date of its authentication.

 

        No Security of any series 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 herein duly executed by the Trustee by manual signature of an authorized officer, and such certificate upon any Security shall be conclusive evidence, and the only evidence, that such Security has been duly authenticated and delivered hereunder.

 

        Unless otherwise provided pursuant to Section 301, in case the Company or any Guarantor, pursuant to Article Eight, shall be consolidated, merged with or into any other Person or shall sell, assign, convey, transfer or lease substantially all of its properties and assets to any Person, and the successor Person resulting from such consolidation, or surviving such merger, or into which the Company or such Guarantor shall have been merged, or the Person which shall have received a sale, assignment, conveyance, transfer or lease as aforesaid, shall have executed an indenture supplemental hereto with the Trustee pursuant to Article Eight, any of the Securities authenticated or delivered prior to such consolidation, merger, sale, assignment, conveyance, transfer or lease may, from time to time, at the request of the successor Person, be exchanged for other Securities executed in the name of the successor Person with such changes in phraseology and form as may be appropriate, but otherwise in substance of like tenor as the Securities surrendered for such exchange and of like principal amount; and the Trustee, upon Company Request of the successor Person, shall authenticate and deliver Securities as specified in such request for the purpose of such exchange. If Securities shall at any time be authenticated and delivered in any new name of a successor Person pursuant to this Section in exchange or substitution for or upon registration of transfer of any Securities, such successor Person, at the option of the Holders but without expense to them, shall provide for the exchange of all Securities at the time Outstanding for Securities authenticated and delivered in such new name.

 

        The Trustee may appoint an authenticating agent acceptable to the Company to authenticate Securities on behalf of the Trustee. Unless limited by the terms of such appointment, an authenticating

 

21

 

agent may authenticate Securities whenever the Trustee may do so. Each reference in this Indenture to authentication by the Trustee includes authentication by such agent. An authenticating agent has the same rights as any Security Registrar or Paying Agent to deal with the Company and its Affiliates.

 

        The Bearer Securities will be transferable by delivery. Other terms, conditions and restrictions in connection with Bearer Securities will be as provided pursuant to Section 301.

 

        The specific terms of the depositary arrangement with respect to any portion of a series of Securities to be represented by a Global Security will be as provided pursuant to Section 301.

 

        Section 304. Temporary Securities.

 

        Unless otherwise provided pursuant to Section 301, pending the preparation of definitive Securities of any series, the Company may execute, and upon Company Order, the Trustee shall authenticate and deliver, temporary Securities which are printed, lithographed, typewritten or otherwise produced, in any authorized denomination, substantially of the tenor of the definitive Securities of any series in lieu of which they are issued and with such appropriate insertions, omissions, substitutions and other variations as the officers executing such Securities may determine, as conclusively evidenced by their execution of such Securities.

 

        Unless otherwise provided pursuant to Section 301, after the preparation of definitive Securities of any series, the temporary Securities of any series shall be exchangeable for definitive Securities of that series upon surrender of the temporary Securities of that series at the office or agency of the Company designated for such purpose pursuant to Section 1002, without charge to the Holder. Upon surrender for cancellation of any one or more temporary Securities the Company shall execute and the Trustee shall authenticate and deliver in exchange therefor a like principal amount of definitive Securities of authorized denominations. 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 that series.

 

        Section 305. Global Securities.

 

        (a)  Unless otherwise provided pursuant to Section 301, any Global Security of any series shall, if the Depositary permits, (i) be registered in the name of the Depositary for such Global Security or the nominee of such Depositary, (ii) be deposited with, or on behalf of, the Depositary and (iii) bear legends as set forth in Section 202; provided, that the Securities are eligible to be in the form of a Global Security.

 

        Members of, or participants in, the Depositary (“Agent Members”) shall have no rights under this Indenture with respect to any Global Security held on their behalf by the Depositary, or the Trustee as its custodian, or under the Global Security, and the Depositary may be treated by the Company, the Trustee and any agent of the Company or the Trustee as the absolute owner of such Global Security for all purposes whatsoever. Notwithstanding the foregoing, nothing herein shall prevent the Company, the Trustee or any agent of the Company from giving effect to any written certification, proxy or other authorization furnished by the Depositary or shall impair, as between the Depositary and its Agent Members, the operation of customary practices governing the exercise of the rights of a holder of any Security.

 

        The Securities of any series may also be issued in whole or in part in the form of one or more bearer global securities (a “Bearer Global Security”) that will be deposited with a depositary, or with a nominee for such a depositary, as provided pursuant to Section 301. Any Bearer Global Security may be issued in temporary or permanent form. The specific terms and procedures, including the specific terms of the depositary arrangement, with respect to any portion of a series of Securities to be represented by one or more Bearer Global Securities will be as provided pursuant to Section 301.

 

        (b)  Unless otherwise provided pursuant to Section 301, transfers of the Global Security of a series shall be limited to transfers of such Global Security in whole, but not in part, to the Depositary, its

 

22

 

successors or their respective nominees. Interests of beneficial owners in a Global Security may be transferred in accordance with the rules and procedures of the Depositary. Under the circumstances described in this clause (b) below, beneficial owners shall obtain physical securities in the form provided pursuant to Section 301 (“Physical Securities”) in exchange for their beneficial interests in a Global Security in accordance with the Depositary’s and the Securities Registrar’s procedures. In connection with the execution, authentication and delivery of such Physical Securities, the Security Registrar shall reflect on its books and records a decrease in the principal amount of the Global Security equal to the principal amount of such Physical Securities and the Company shall execute and the Trustee shall authenticate and deliver one or more Physical Securities having an equal aggregate principal amount. Unless otherwise provided pursuant to Section 301, the Securities will be delivered in certificated form if (i) the Depositary ceases to be registered as a clearing agency under the Exchange Act or is not willing or no longer willing or able to provide securities depository services with respect to the Securities and a successor depositary is not appointed by the Company within 90 days and (ii) the Company, in its sole discretion, so determines or (iii) there shall have occurred an Event of Default or an event which, with the giving of notice or lapse of time or both, would constitute an Event of Default with respect to the Securities represented by such Global Security and such Event of Default or event continues for a period of 90 days.

 

        (c)  In connection with any transfer of a portion of the beneficial interest in a Global Security to a Physical Security pursuant to subsection (b) of this Section to beneficial owners, the Security Registrar shall reflect on its books and records the date and a decrease in the principal amount of a Global Security in an amount equal to the principal amount of the beneficial interest in the Global Security to be transferred, and the Company shall execute, and the Trustee shall authenticate and deliver, one or more Physical Securities of like tenor and amount.

 

        (d)  In connection with the transfer of the entire Global Security of any series to beneficial owners pursuant to subsection (b) of this Section, a Global Security shall be deemed to be surrendered to the Trustee for cancellation, and the Company shall execute, and the Trustee shall authenticate and deliver, to each beneficial owner identified by the Depositary in exchange for its beneficial interest in a Global Security, an equal aggregate principal amount of Physical Securities of authorized denominations.

 

        (e)  The registered holder of a Global Security may grant proxies and otherwise authorize any person, including Agent Members and Persons that may hold interests through Agent Members, to take any action which a Holder is entitled to take under this Indenture or the Securities.

 

        Section 306. Registration, Registration of Transfer and Exchange.

 

        Unless otherwise provided pursuant to Section 301, the Company shall cause to be kept at the Corporate Trust Office of the Trustee, or such other office as the Trustee may designate, a register (the register maintained in such office and in any other office or agency designated pursuant to Section 1002 being herein sometimes referred to as the “Security Register”) in which, subject to such reasonable regulations as the Security Registrar may prescribe, the Company shall provide for the registration of Securities of any series and of transfers of Securities of any series. The Trustee or an agent thereof or of the Company shall initially be the “Security Registrar” for the purpose of registering Securities of any series and transfers of Securities of any series as herein provided.

 

        Procedures with respect to the registration and registration of transfer and exchange, and other matters related thereto, with respect to Bearer Securities shall be provided pursuant to Section 301.

 

        Unless otherwise provided pursuant to Section 301, upon surrender for registration of transfer of any Security of any series at the office or agency of the Company designated pursuant to Section 1002, the Company shall execute, and the Trustee shall authenticate and deliver, in the name of the designated transferee or transferees, one or more new Securities of that series of any authorized denomination or denominations, of a like aggregate principal amount.

 

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        In case any such mutilated, destroyed, lost or stolen Security of any series has become or is about to become due and payable, the Company in its discretion may, instead of issuing a replacement Security of that series, pay such Security.

 

        Upon the issuance of any replacement Securities of that series under this Section, the Company may require the payment of a sum sufficient to pay all documentary, stamp or similar issue or transfer taxes or other governmental charges that may be imposed in relation thereto and any other expenses (including the fees and expenses of the Trustee) connected therewith.

 

        Every replacement Security of a series issued pursuant to this Section in lieu of any destroyed, lost or stolen Security of that series shall constitute an original additional contractual obligation of the Company and the Guarantors, if any, whether or not the destroyed, lost or stolen Security of that series shall be at any time enforceable by anyone, and shall be entitled to all benefits of this Indenture equally and proportionately with any and all other Securities of the same series duly issued hereunder.

 

        Procedures relating to mutilated, destroyed, lost or stolen Bearer Securities shall be provided pursuant to Section 301.

 

        The provisions of this Section are 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.

 

        Section 308. [RESERVED]

 

        Section 309. Payment of Interest; Interest Rights Preserved.

 

        Unless otherwise provided pursuant to Section 301, interest on any Security of a series which is payable, and is punctually paid or duly provided for, on any Interest Payment Date shall be paid to the Person in whose name that Security of that series is registered at the close of business on the Regular Record Date for such interest.

 

        Unless otherwise provided pursuant to Section 301, any interest on any Security of a series which is payable, but is not punctually paid or duly provided for, on any Interest Payment Date and interest on such defaulted interest at the then applicable interest rate borne by the Securities of that series, to the extent lawful (such defaulted interest and interest thereon herein collectively called “Defaulted Interest”) shall forthwith cease to be payable to the Holder on the Regular Record Date; and such Defaulted Interest may be paid by the Company, at its election in each case, as provided in Subsection (a) or (b) below:

 

        (a)  The Company may elect to make payment of any Defaulted Interest to the Persons in whose names the Securities of that series are registered at the close of business on a Special Record Date for the payment of such Defaulted Interest, which shall be fixed in the following manner. The Company shall notify the Trustee in writing of the amount of Defaulted Interest proposed to be paid on each Security of that series and the date (not less than 30 days after such notice) 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 prior to the date of the proposed payment, such money when deposited to be held in trust for the benefit of the Persons entitled to such Defaulted Interest as in this Subsection provided. Thereupon the Trustee shall fix a Special Record Date for the payment of such Defaulted Interest which shall be not more than 15 days and not less than 10 days prior to the date of the proposed payment and not less than 10 days after the receipt by the Trustee of the notice of the proposed payment. The Trustee shall promptly notify the Company in writing of such Special Record Date. In the name and at the expense of the Company, the Trustee shall cause notice of the proposed payment of such Defaulted Interest and the Special Record Date therefor to be mailed, first-class postage prepaid, to each Holder at his address as it appears in the Security Register,

 

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not less than 10 days prior to such Special Record Date. Notice of the proposed payment of such Defaulted Interest and the Special Record Date therefor having been so mailed, such Defaulted Interest shall be paid to the Persons in whose names the Securities of that series are registered on such Special Record Date and shall no longer be payable pursuant to the following Subsection (b).

 

        (b)  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 the Securities of that series may be listed, and upon such notice as may be required by such exchange, if, after written notice given by the Company to the Trustee of the proposed payment pursuant to this Subsection, such payment shall be deemed practicable by the Trustee.

 

        Payment of interest and preservation of interest rights of Bearer Securities shall be set forth pursuant to Section 301.

 

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

 

        Section 310. Persons Deemed Owners.

 

        Unless otherwise provided pursuant to Section 301, the Company, any Guarantor, the Trustee and any agent of the Company, any Guarantor or the Trustee may treat the Person in whose name any Security of any series is registered as the owner of such Security for the purpose of receiving payment of principal of, premium, if any, and (subject to Section 309) interest on such Security and for all other purposes whatsoever, whether or not such Security is overdue, and neither the Company, any Guarantor, the Trustee nor any agent of the Company, any Guarantor or the Trustee shall be affected by notice to the contrary.

 

        Unless otherwise provided as contemplated by Section 301, the Company, any Guarantor, the Trustee and any agent of the Company, any Guarantor or the Trustee may treat the bearer of any Bearer Security of any series and the bearer of any interest coupon as the absolute owner of such Bearer Security or interest coupon for the purpose of receiving payment thereof or on account thereof and for all other purposes whatsoever, whether or not such Bearer Security or interest coupon be overdue, and neither the Company, any Guarantor, the Trustee nor any agent of the Company, the Guarantor or the Trustee shall be affected by notice to the contrary.

 

        No holder of any beneficial interest in any Global Security of any series held on its behalf by a Depositary of that series shall have any rights under this Indenture with respect to such Global Security of that series, and such Depositary may be treated by the Company, any Guarantor, the Trustee and any agent of the Company, any Guarantor or the Trustee as the owner of such Global Security for all purposes whatsoever. Notwithstanding the foregoing, nothing herein shall prevent the Company, any Guarantor, the Trustee or any agent of the Company, any Guarantor or the Trustee from giving effect to any written certification, proxy or other authorization furnished by the Depositary or impair, as between the Depositary and such holders of beneficial interests, the operation of customary practices governing the exercise of the rights of the Depositary (or its nominee) as Holder of any Security of any series.

 

        Section 311. Cancellation.

 

        All Securities of any series surrendered for payment, purchase, redemption, registration of transfer or exchange shall be delivered to the Trustee and, if not already cancelled, shall be promptly cancelled by it. The Company and any Guarantor may at any time deliver to the Trustee for cancellation any Securities of any series previously authenticated and delivered hereunder which the Company or such Guarantor may have acquired in any manner whatsoever, and all Securities of any series so delivered

 

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shall be promptly cancelled by the Trustee. No Securities of any series shall be authenticated in lieu of or in exchange for any Securities of that series cancelled as provided in this Section, except as expressly permitted by this Indenture. All cancelled Securities of any series held by the Trustee shall be destroyed and certification of their destruction delivered to the Company unless by a Company Order the Company shall direct that the cancelled Securities of that series be returned to it. The Trustee shall provide the Company a list of all Securities of the series that have been cancelled from time to time as requested by the Company.

 

        Section 312. Computation of Interest.

 

        Except as otherwise provided pursuant to Section 301, interest on the Securities of all series shall be computed on the basis of a 360-day year of twelve 30-day months.

 

        Section 313. CUSIP Numbers.

 

        The Company in issuing the Securities of any series 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 of that series 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 of that series, and any such redemption shall not be affected by any defect in or omission of such numbers.

 

ARTICLE FOUR

 

DEFEASANCE AND COVENANT DEFEASANCE

 

        Unless otherwise provided pursuant to Section 301, Securities of any series shall be subject to the following provisions:

 

        Section 401. Company’s Option to Effect Defeasance or Covenant Defeasance.

 

        Unless otherwise provided pursuant to Section 301, the Company may, at its option by Board Resolution, at any time, with respect to the Securities of any series, elect to have either Section 402 or Section 403 be applied to all of the Outstanding Securities of any series (the “Defeased Securities”), upon compliance with the conditions set forth below in this Article Four.

 

        Section 402. Defeasance and Discharge.

 

        Unless otherwise provided pursuant to Section 301, upon the Company’s exercise under Section 401 of the option applicable to this Section 402, the Company, each of the Guarantors, if any, and any other obligor upon the Securities of any series, if any, shall be deemed to have been discharged from its obligations with respect to the Defeased Securities on the date the conditions set forth below are satisfied (hereinafter, “defeasance”). For this purpose, such defeasance means that the Company, each of the Guarantors, if any, and any other obligor under the Indenture shall be deemed to have paid and discharged the entire Indebtedness represented by the Defeased Securities of that series, which shall thereafter be deemed to be “Outstanding” only for the purposes of Section 405 and the other Sections of this Indenture referred to in (a) and (b) below, and to have satisfied all its other obligations under such Securities and this Indenture insofar as such Securities are concerned (and the Trustee, at the expense of the Company, and, upon written request, shall execute proper instruments acknowledging the same), except for the following which shall survive until otherwise terminated or discharged hereunder: (a) the rights of Holders of Defeased Securities to receive, solely from the trust fund described in Section 404 and as more fully set forth in such Section, payments in respect of the principal of, premium, if any, and interest on such Securities when such payments are due, (b) the Company’s obligations with respect to such Defeased Securities under Sections 304, 305, 306, 1002 and

 

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1003, (c) the rights, powers, trusts, duties and immunities of the Trustee hereunder, including, without limitation, the Trustee’s rights under Section 606, (d) this Article Four and (e) if the Security is convertible, the right of the Holder to convert the Security according to the terms set forth pursuant to Section 301. Subject to compliance with this Article Four, the Co