Exhibit
4.3


 




 





UAL
CORPORATION,

as Issuer,


 


and


 


UNITED
AIR LINES, INC.,

as Guarantor


 


to


 


THE
BANK OF NEW YORK TRUST COMPANY, N.A.,

as Trustee


 






 


INDENTURE


 


Dated
as of February 1, 2006


 






 


Providing for
Issuance of

5% Senior Convertible Notes due 2021




 





 

















 


Reconciliation and tie
between Indenture, dated as of February 1, 2006, and the Trust Indenture
Act of 1939, as amended.


 




	
  Trust Indenture Act of 1939
  Section

  	
   

  	
  Indenture Section

  
	
   

  	
   

  	
   

  
	
  310

  	
  (a)(1)

  	
   

  	
  6.10; 6.11; 6.12

  
	
   

  	
  (a)(2)

  	
   

  	
  6.12

  
	
   

  	
  (a)(3)

  	
   

  	
  TIA

  
	
   

  	
  (a)(4)

  	
   

  	
  Not Applicable

  
	
   

  	
  (a)(5)

  	
   

  	
  TIA

  
	
   

  	
  (b)

  	
   

  	
  4.6; 6.4; 6.10; 6.12;

  
	
   

  	
   

  	
   

  	
  TIA

  
	
   

  	
   

  	
   

  	
   

  
	
  311

  	
  (a)

  	
   

  	
  6.4; 6.16; TIA

  
	
   

  	
  (b)

  	
   

  	
  TIA

  
	
   

  	
  (c)

  	
   

  	
  Not Applicable

  
	
   

  	
   

  	
   

  	
   

  
	
  312

  	
  (a)

  	
   

  	
  6.8

  
	
   

  	
  (b)

  	
   

  	
  1.16; TIA

  
	
   

  	
  (c)

  	
   

  	
  1.16; TIA

  
	
   

  	
   

  	
   

  	
   

  
	
  313

  	
  (a)

  	
   

  	
  6.3; 6.7; TIA

  
	
   

  	
  (b)

  	
   

  	
  6.3; 6.7; TIA

  
	
   

  	
  (c)

  	
   

  	
  6.3; 6.7; TIA

  
	
   

  	
  (d)

  	
   

  	
  6.3; 6.7; TIA

  
	
   

  	
   

  	
   

  	
   

  
	
  314

  	
  (a)

  	
   

  	
  9.5; 9.7; TIA

  
	
   

  	
  (b)

  	
   

  	
  Not Applicable

  
	
   

  	
  (c)(1)

  	
   

  	
  1.2; 4.1; 4.6; 5.7;
  7.1; 9.5

  
	
   

  	
  (c)(2)

  	
   

  	
  1.2; 4.1; 4.6; 7.1; 9.5

  
	
   

  	
  (c)(3)

  	
   

  	
  Not Applicable

  
	
   

  	
  (d)

  	
   

  	
  Not Applicable

  
	
   

  	
  (e)

  	
   

  	
  9.8; TIA

  
	
   

  	
  (f)

  	
   

  	
  TIA

  
	
   

  	
   

  	
   

  	
   

  
	
  315

  	
  (a)

  	
   

  	
  6.1; 6.3; TIA

  
	
   

  	
  (b)

  	
   

  	
  6.2

  
	
   

  	
  (c)

  	
   

  	
  TIA

  
	
   

  	
  (d)(1)

  	
   

  	
  TIA

  
	
   

  	
  (d)(2)

  	
   

  	
  6.1; TIA

  
	
   

  	
  (d)(3)

  	
   

  	
  6.1; TIA

  
	
   

  	
  (e)

  	
   

  	
  6.10; TIA

  
	
   

  	
   

  	
   

  	
   

  
	
  316

  	
  (a) (last sentence)

  	
   

  	
  1.1

  
	
   

  	
  (a)(1)(A)

  	
   

  	
  5.2; 5.8

  
	
   

  	
  (a)(1)(B)

  	
   

  	
  5.7x

  
	
   

  	
  (b)

  	
   

  	
  5.75.9; 5.10

  
	
   

  	
  (c)

  	
   

  	
  1.4; TIA

  
	
   

  	
   

  	
   

  	
   

  
	
  317

  	
  (a)(1)

  	
   

  	
  5.3; 6.3

  
	
   

  	
  (a)(2)

  	
   

  	
  5.4; 6.3

  






 


i

















 




	
  Trust Indenture Act of 1939
  Section

  	
   

  	
  Indenture Section

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  (b)

  	
   

  	
  6.3; 9.3

  
	
   

  	
   

  	
   

  	
   

  
	
  318

  	
  (a)

  	
   

  	
  1.11

  
	
   

  	
  (b)

  	
   

  	
  TIA

  
	
   

  	
  (c)

  	
   

  	
  1.11; TIA

  






 


This reconciliation and
tie Section does not constitute part of the Indenture.


 


ii

















 


Table
of Contents


 


	
   

  	
   

  	
  Page(s)

  
	
  ARTICLE
  1 Definitions and Other Provisions of General Application

  	
  1

  
	
  Section
  1.1.

  	
  Definitions

  	
  1

  
	
  Section
  1.2.

  	
  Compliance Certificates
  and Opinions

  	
  11

  
	
  Section
  1.3.

  	
  Form of Documents
  Delivered to Trustee

  	
  12

  
	
  Section
  1.4.

  	
  Acts of Holders.

  	
  12

  
	
  Section
  1.5.

  	
  Notices, etc., to
  Trustee, Company, and Guarantor

  	
  14

  
	
  Section
  1.6.

  	
  Notice to Holders;
  Waiver

  	
  14

  
	
  Section
  1.7.

  	
  Headings and Table of
  Contents

  	
  15

  
	
  Section
  1.8.

  	
  Successors and Assigns

  	
  15

  
	
  Section
  1.9.

  	
  Separability

  	
  15

  
	
  Section
  1.10.

  	
  Benefits of Indenture

  	
  15

  
	
  Section
  1.11.

  	
  Governing Law

  	
  15

  
	
  Section
  1.12.

  	
  Legal Holidays

  	
  15

  
	
  Section
  1.13.

  	
  Trustee to Establish
  Record Dates

  	
  16

  
	
  Section
  1.14.

  	
  Notes Relative to Other
  Notes

  	
  16

  
	
  Section
  1.15.

  	
  No Personal Liability
  of Directors, Officers, Employees and Stockholders

  	
  16

  
	
  Section
  1.16.

  	
  Communication by
  Holders with Other Holders

  	
  16

  
	
  Section
  1.17.

  	
  Company Responsible for
  Making Calculations

  	
  16

  
	
   

  	
   

  	
   

  
	
  ARTICLE
  2 Security Forms

  	
  17

  
	
  Section
  2.1.

  	
  Forms Generally

  	
  17

  
	
  Section
  2.2.

  	
  Form of Trustee’s
  Certificate of Authentication

  	
  17

  
	
  Section
  2.3.

  	
  Notes in Global Form

  	
  18

  
	
  Section
  2.4.

  	
  Global Note Legend

  	
  18

  
	
  Section
  2.5.

  	
  Transfer Restrictions

  	
  19

  
	
   

  	
   

  	
   

  
	
  ARTICLE
  3 The Securities

  	
  19

  
	
  Section
  3.1.

  	
  Aggregate Amounts;
  Issuance

  	
  19

  
	
  Section
  3.2.

  	
  Denominations

  	
  19

  
	
  Section
  3.3.

  	
  Execution,
  Authentication, Delivery and Dating

  	
  19

  
	
  Section
  3.4.

  	
  Temporary Notes

  	
  21

  
	
  Section
  3.5.

  	
  Registration,
  Registration of Transfer and Exchange

  	
  21

  
	
  Section
  3.6.

  	
  Replacement Notes

  	
  23

  
	
  Section
  3.7.

  	
  Payment of Interest;
  Interest Rights Preserved.

  	
  24

  
	
  Section
  3.8.

  	
  Persons Deemed Owners

  	
  25

  
	
  Section
  3.9.

  	
  Cancellation

  	
  26

  
	
  Section
  3.10.

  	
  Computation of Interest

  	
  26

  
	
  Section
  3.11.

  	
  CUSIP Numbers

  	
  26

  
	
   

  	
   

  	
   

  
	
  ARTICLE
  4 Satisfaction, Discharge and Defeasance

  	
  27

  
	
  Section
  4.1.

  	
  Termination of
  Company’s Obligations Under the Indenture

  	
  27

  



 


i

















 


	
  Section
  4.2.

  	
  Application of Trust
  Funds

  	
  28

  
	
  Section
  4.3.

  	
  Company’s Option to
  Effect Defeasance or Covenant Defeasance

  	
  28

  
	
  Section
  4.4.

  	
  Defeasance and Discharge

  	
  28

  
	
  Section
  4.5.

  	
  Covenant Defeasance

  	
  29

  
	
  Section
  4.6.

  	
  Conditions to
  Defeasance or Covenant Defeasance

  	
  29

  
	
  Section
  4.7.

  	
  Deposited Money and
  Government Obligations to Be Held in Trust

  	
  31

  
	
  Section
  4.8.

  	
  Reinstatement

  	
  31

  
	
   

  	
   

  	
   

  
	
  ARTICLE
  5 Defaults and Remedies

  	
  32

  
	
  Section
  5.1.

  	
  Events of Default

  	
  32

  
	
  Section
  5.2.

  	
  Acceleration;
  Rescission and Annulment

  	
  33

  
	
  Section
  5.3.

  	
  Collection of
  Indebtedness and Suits for Enforcement by Trustee

  	
  34

  
	
  Section
  5.4.

  	
  Trustee May File Proofs
  of Claim

  	
  35

  
	
  Section
  5.5.

  	
  Trustee May Enforce
  Claims Without Possession of Notes

  	
  35

  
	
  Section
  5.6.

  	
  Delay or Omission Not
  Waiver

  	
  35

  
	
  Section
  5.7.

  	
  Waiver of Past Defaults

  	
  35

  
	
  Section
  5.8.

  	
  Control by Majority

  	
  36

  
	
  Section
  5.9.

  	
  Limitation on Suits by
  Holders

  	
  36

  
	
  Section
  5.10.

  	
  Rights of Holders to Receive
  Payment and to Convert

  	
  36

  
	
  Section
  5.11.

  	
  Application of Money
  Collected

  	
  37

  
	
  Section
  5.12.

  	
  Restoration of Rights
  and Remedies

  	
  37

  
	
  Section
  5.13.

  	
  Rights and Remedies
  Cumulative

  	
  37

  
	
  Section
  5.14.

  	
  Undertaking for Costs

  	
  37

  
	
  Section
  5.15.

  	
  Waiver of Stay or
  Extension Laws

  	
  37

  
	
   

  	
   

  	
   

  
	
  ARTICLE
  6 The Trustee

  	
  38

  
	
  Section
  6.1.

  	
  Certain Duties and
  Responsibilities.

  	
  38

  
	
  Section
  6.2.

  	
  Notice of Defaults

  	
  39

  
	
  Section
  6.3.

  	
  Rights of Trustee

  	
  39

  
	
  Section
  6.4.

  	
  Trustee May Hold Notes

  	
  40

  
	
  Section
  6.5.

  	
  Money Held in Trust

  	
  40

  
	
  Section
  6.6.

  	
  Trustee’s Disclaimer

  	
  40

  
	
  Section
  6.7.

  	
  Reports by Trustee to
  the Holders

  	
  40

  
	
  Section
  6.8.

  	
  Securityholder Lists

  	
  41

  
	
  Section
  6.9.

  	
  Compensation and
  Indemnity.

  	
  41

  
	
  Section
  6.10.

  	
  Replacement of Trustee

  	
  42

  
	
  Section
  6.11.

  	
  Acceptance of
  Appointment by Successor.

  	
  43

  
	
  Section
  6.12.

  	
  Disqualification;
  Eligibility.

  	
  44

  
	
  Section
  6.13.

  	
  Merger, Conversion,
  Consolidation or Succession to Business

  	
  45

  
	
  Section
  6.14.

  	
  Appointment of
  Authenticating Agent

  	
  45

  
	
  Section
  6.15.

  	
  Trustee’s Application
  for Instructions from the Company

  	
  46

  
	
  Section
  6.16.

  	
  Preferential Collection
  of Claims Against Company

  	
  46

  
	
   

  	
   

  	
   

  
	
  ARTICLE
  7 Consolidation, Merger or Sale by the Company

  	
  47

  



 


ii

















 


	
  Section
  7.1.

  	
  Consolidation, Merger
  or Sale of Assets Only on Certain Terms

  	
  47

  
	
   

  	
   

  	
   

  
	
  ARTICLE
  8 Supplemental Indentures

  	
  47

  
	
  Section
  8.1.

  	
  Supplemental Indentures
  Without Consent of Holders

  	
  47

  
	
  Section
  8.2.

  	
  With Consent of Holders

  	
  48

  
	
  Section
  8.3.

  	
  Compliance with Trust
  Indenture Act

  	
  50

  
	
  Section
  8.4.

  	
  Execution of
  Supplemental Indentures

  	
  50

  
	
  Section
  8.5.

  	
  Effect of Supplemental
  Indentures

  	
  50

  
	
  Section
  8.6.

  	
  Reference in Notes to
  Supplemental Indentures

  	
  50

  
	
  Section
  8.7.

  	
  Notice

  	
  50

  
	
   

  	
   

  	
   

  
	
  ARTICLE
  9 Covenants

  	
  50

  
	
  Section
  9.1.

  	
  Payment of Principal,
  Premium, if any, and Interest

  	
  50

  
	
  Section
  9.2.

  	
  Maintenance of Office
  or Agency

  	
  51

  
	
  Section
  9.3.

  	
  Money for Notes to Be
  Held in Trust; Unclaimed Property

  	
  51

  
	
  Section
  9.4.

  	
  Corporate Existence

  	
  52

  
	
  Section
  9.5.

  	
  Reports by the Company

  	
  53

  
	
  Section
  9.6.

  	
  Notice of Default

  	
  53

  
	
  Section
  9.7.

  	
  Provision of Financial
  Statements

  	
  53

  
	
  Section
  9.8.

  	
  Compliance Certificates

  	
  54

  
	
  Section
  9.9.

  	
  Further Instruments and
  Acts

  	
  54

  
	
  Section
  9.10.

  	
  Payments for Consents

  	
  54

  
	
  Section
  9.11.

  	
  Changes in Organization
  Documents

  	
  54

  
	
  Section
  9.12.

  	
  Affiliate Transactions

  	
  54

  
	
   

  	
   

  	
   

  
	
  ARTICLE
  10 Redemption and Repurchase

  	
  55

  
	
  Section
  10.1.

  	
  Election to Redeem;
  Notice to Trustee

  	
  55

  
	
  Section
  10.2.

  	
  Selection of Notes to
  Be Redeemed

  	
  55

  
	
  Section
  10.3.

  	
  Notice of Redemption

  	
  56

  
	
  Section
  10.4.

  	
  Deposit of Redemption
  Price

  	
  57

  
	
  Section
  10.5.

  	
  Notes Payable on
  Redemption Date

  	
  58

  
	
  Section
  10.6.

  	
  Notes Redeemed in Part

  	
  58

  
	
  Section
  10.7.

  	
  Optional Redemption

  	
  58

  
	
  Section
  10.8.

  	
  Mandatory Redemption

  	
  59

  
	
  Section
  10.9.

  	
  Repurchase of Notes by
  the Company at Option of Holders on Specified Dates.

  	
  59

  
	
  Section
  10.10.

  	
  Conversion Arrangement
  on Call for Redemption

  	
  62

  
	
  Section
  10.11.

  	
  Company’s Right to
  Elect Manner of Payment of Repurchase Price.

  	
  62

  
	
  Section
  10.12.

  	
  Conditions and
  Procedures for Repurchase at Option of Holders.

  	
  65

  
	
   

  	
   

  	
   

  
	
  ARTICLE
  11 Note Guarantee

  	
  67

  
	
  Section
  11.1.

  	
  Guarantee.

  	
  67

  
	
  Section
  11.2.

  	
  Limitation on Guarantor
  Liability

  	
  68

  
	
  Section
  11.3.

  	
  Execution and Delivery
  of a Note Guarantee

  	
  69

  



 


iii

















 


	
  Section
  11.4.

  	
  Guarantor May
  Consolidate, etc., on Certain Terms

  	
  69

  
	
   

  	
   

  	
   

  
	
  ARTICLE
  12 Conversion of Notes

  	
  70

  
	
  Section
  12.1.

  	
  Right to Convert

  	
  70

  
	
  Section
  12.2.

  	
  Exercise of Conversion
  Privilege; Issuance of Common Stock on Conversion; No Adjustment for Interest
  or Dividends; Settlement of Cash or Common Stock upon Conversion

  	
  70

  
	
  Section
  12.3.

  	
  Cash Payments in Lieu
  of Fractional Shares

  	
  75

  
	
  Section
  12.4.

  	
  Conversion Rate

  	
  75

  
	
  Section
  12.5.

  	
  Adjustment of
  Conversion Rate

  	
  75

  
	
  Section
  12.6.

  	
  Effect of
  Reclassification, Consolidation, Merger or Sale

  	
  84

  
	
  Section
  12.7.

  	
  Taxes on Shares Issued

  	
  85

  
	
  Section
  12.8.

  	
  Reservation of Shares,
  Shares to Be Fully Paid; Compliance with Governmental Requirements; Listing
  of Common Stock

  	
  85

  
	
  Section
  12.9.

  	
  Responsibility of
  Trustee

  	
  86

  
	
  Section
  12.10.

  	
  Notice to Holders Prior
  to Certain Actions

  	
  86

  
	
   

  	
   

  	
   

  



 


	
  Exhibits

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Exhibit A

  	
  Form of 5% Senior
  Convertible Note

  	
   

  
	
  Exhibit B

  	
  Form of Notation of
  Guarantee

  	
   

  



 


iv

















 


INDENTURE, dated as of
February 1, 2006, among UAL CORPORATION, a Delaware corporation (the
“Company”), UNITED AIR LINES, INC., a Delaware corporation (the “Guarantor”)
and THE BANK OF NEW YORK TRUST COMPANY, N.A., a national banking association,
as Trustee (the “Trustee”).


 


Recitals


 


On December 9, 2002, the
Company and certain of its directly and indirectly wholly owned subsidiaries
filed a voluntary petition under Chapter 11 of Title 11 of the United States
Code, as amended (the “Bankruptcy Code”), with the United States Bankruptcy
Court for the Northern District of Illinois (the “Bankruptcy Court”).


 


The Company and certain
of its directly and indirectly wholly owned subsidiaries filed a Joint Plan of
Reorganization (the “Plan”) which was approved by the Bankruptcy Court
on January 20, 2006.


 


Pursuant to the Plan, the
Company is required to issue the 5% Senior Convertible Notes (as defined
herein) to holders of bonds relating to O’Hare International Airport.


 


The Company has duly
authorized the issuance of the 5% Senior Convertible Notes (the “Notes”), and
to provide therefor, the Company has duly authorized the execution and delivery
of this Indenture.


 


All things necessary to
make the Notes, when executed by the Company and authenticated and delivered
hereunder and duly issued by the Company, the valid obligations of the Company,
and to make this Indenture a valid agreement of the Company, in accordance with
its terms, have been done and all things necessary to duly authorize the
issuance of the Common Stock (as hereinafter defined) of the Company initially
issuable upon the conversion of the Notes, and to reserve for issuance the
number of shares of Common Stock initially issuable upon such conversion, have
been done.


 


For and in consideration
of the premises and the acquisition of the Notes by the Holders thereof, it is
mutually covenanted and agreed as follows for the equal and ratable benefit of
the Holders of the Notes:


 


ARTICLE 1


 


Definitions and
Other Provisions 

of General Application


 


Section 1.1.            Definitions.  For all purposes of this Indenture, except as
otherwise expressly provided or unless the context otherwise requires:


 


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


 

















 


(2)           all other terms used herein which are
defined in the Trust Indenture Act, either directly or by reference therein,
and not otherwise defined herein have the meanings assigned to them therein;


 


(3)           all accounting terms not otherwise
defined herein have the meanings assigned to them in accordance with generally
accepted accounting principles; and


 


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


 


“5% Senior Convertible
Notes” means the $149,646,114 principal amount of 5% senior convertible
notes issued pursuant to this Indenture or any supplemental indenture hereto.


 


“Adjustment Event”
has the meaning specified in Section 12.5(l).


 


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


 


“Agent” means any
Paying Agent or Registrar.


 


“Authenticating Agent”
means any authenticating agent appointed by the Trustee pursuant to Section
6.14.


 


“Authorized Newspaper”
means a newspaper in New York, New York, Washington, D.C. or Chicago, Illinois
in the English language, customarily published on each Business Day whether or
not published on Saturdays, Sundays or holidays, and of general circulation in
the place in connection with which the term is used or in the financial
community of such place.  Whenever
successive publications in an Authorized Newspaper are required hereunder they
may be made (unless otherwise expressly provided herein) on any Business Day
and in the same or different Authorized Newspapers.


 


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


 


“Board” or “Board
of Directors” means the Board of Directors of the Company, the Executive
Committee thereof or any other duly authorized committee thereof.


 


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


 


2

















 


“Business Day”
means each Monday, Tuesday, Wednesday, Thursday and Friday which is not a day
on which banking institutions in New York, New York are authorized or obligated
by applicable law or executive order to remain closed.


 


“Cash Amount” has
the meaning specified in Section 12.2(h)(iii).


 


“Cash Settlement
Averaging Period” has the meaning specified in Section 12.2(h)(ii)(B).


 


“Cash Settlement
Notice Period” has the meaning specified in Section 12.2(g)(i).


 


“Change in Ownership”
means any “person” or “group” within the meaning of Sections 13(d) and 14(d)(2)
of the Securities Exchange Act or any successor provision to either of the
foregoing, including any group acting for the purpose of acquiring, holding or
disposing of securities within the meaning of Rule 13d-5(b)(1) under the
Securities Exchange Act, becomes the “beneficial owner,” as defined in Rule 13d-3
under the Securities Exchange Act, directly or indirectly, through a purchase,
merger or other acquisition transaction, of the voting power to elect a
majority of the Board, other than an acquisition by the Company, any of its
Subsidiaries or any of its Subsidiaries’ or the Company’s employee benefit
plans.


 


“Commission” means
the Securities and Exchange Commission, as from time to time constituted,
created under the Securities 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.


 


“Common Stock”
means the common stock, par value $0.01 per share, of the Company as it exists
on the date of this Indenture and any shares of any class or classes of capital
stock of the Company into which the Common Stock may be reclassified or
changed.


 


“Company” means
the Person named as the Company in the first paragraph of this Indenture until
one or more successor Persons replaces it pursuant to the applicable provisions
of this Indenture, and thereafter means such successor(s).


 


“Company Order”
and “Company Request” mean, respectively, a written order or request
signed in the name of the Company by the Chairman of the Board, the Chief
Executive Officer, the President, the Chief Financial Officer, any Executive
Vice President or any Senior Vice President, signing alone, by any Vice
President signing together with the Treasurer, any Assistant Treasurer, the
Corporate Secretary or any Assistant Secretary of the Company, or, with respect
to Section 3.3, Section 3.4 and Section 3.5, any Assistant Secretary of the
Company.


 


“Conversion Agent”
means the Trustee or such other office or agency designated by the Company
where Notes may be presented for conversion.


 


“Conversion Date”
has the meaning specified in Section 12.2(c).


 


“Conversion Obligation”
has the meaning specified in Section 12.2(g)(i).


 


3

















 


“Conversion Price”
as of any day means 125% of the average of the Last Reported Sales Prices for
the 60 consecutive Trading Days following February 1, 2006, rounded to the
nearest cent.


 


“Conversion Rate”
has the meaning specified in Section 12.4.


 


“Conversion Retraction
Period” has the meaning specified in Section 12.2(g)(i).


 


“Corporate Trust
Office” means the office of the Trustee at which at any particular time its
corporate trust business shall be principally administered, which office at the
date hereof is located at 2 N. LaSalle Street, Suite 1020, Chicago, Illinois
60602, Attention: Corporate Trust Department.


 


“corporation”
includes corporations, associations, companies and business trusts.


 


“Custodian” means
any receiver, trustee, assignee, liquidator or similar official under any
Bankruptcy Law.


 


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


 


“Depositary”, when
used with respect to the Notes issuable or issued in whole or in part in global
form, means the Person designated as Depositary by the Company pursuant to
Section 3.1 until a successor Depositary shall have become such pursuant to the
applicable provisions of this Indenture, and thereafter shall mean or include
each Person which is then a Depositary hereunder, and if at any time there is
more than one such Person, shall be a collective reference to such Persons.


 


“Determination Date”
has the meaning specified in Section 12.5(l).


 


“Dollar” means the
coin or currency of the United States as at the time of payment is legal tender
for the payment of public and private debts.


 


“Employee Notes”
means the Company’s Senior Convertible Notes due 2021 to be issued pursuant to
the Plan to various employees of the Company, including through their
respective collective bargaining units.


 


“Ex-Dividend
Date” means, with respect to any dividend or distribution on shares of
Common Stock, the first date on which a sale of shares of Common Stock does not
automatically transfer the right to receive the relevant dividend or
distribution from such seller of the shares to the buyer.


 


“Existing Credit
Facility” means the up to $3.0 billion Revolving Credit, Term Loan and
Guaranty Agreement, dated as of February 1, 2006, among United Air Lines,
Inc., UAL Corporation, certain subsidiaries thereof, various lenders party
thereto and JPMorgan Chase Bank, N.A. as Co-Administrative Agent, Co-Collateral
Agent and Paying Agent, Citicorp USA, Inc. as Co-Administrative Agent and
Co-Collateral Agent, J.P. Morgan Securities Inc., as Joint Lead Arranger
and 


 


4

















 


Joint Bookrunner, Citigroup Global Markets, Inc. as Joint Lead Arranger
and Joint Bookrunner, and General Electric Capital Corporation, as Syndication
Agent, as amended, restated, modified, renewed, refunded, replaced or
refinanced in whole or in part from time to time.


 


“Form of Conversion
Notice” has the meaning specified in Section 12.2(a).


 


“Fundamental Change”
means the occurrence of any of the following: 
(a) any sale, conveyance, transfer or disposition of more than 50%
of the property or assets of the Company and its Subsidiaries on a consolidated
basis (measured either by book value in accordance with generally accepted
accounting principles consistently applied or by fair market value determined
in the reasonable good faith judgment of the Board) in any transaction or
series of related transactions (other than sales in the ordinary course of
business); (b) any merger or consolidation to which the Company is a
party, except for (x) a merger which is effected solely to change the
state of incorporation of the Company or (y) a merger in which the Company
is the surviving Person, the terms of the Notes are not changed or altered in
any respect, the Notes are not exchanged for cash, securities or other property
or assets and, after giving effect to such merger, the holders of the capital
stock of the Company as of the date of this Indenture shall continue to own the
outstanding capital stock of the Company possessing the voting power (under
ordinary circumstances) to elect a majority of the Board; (c) the Termination
of Trading or (d) the Company’s approval of a plan of liquidation or
dissolution.


 


“Government
Obligations” means securities which are (i) direct obligations of the
United States for the payment of which its full faith and credit is pledged or
(ii) obligations of a Person controlled or supervised by and acting as an
agency or instrumentality of the United States, the payment of which is
unconditionally guaranteed as a full faith and credit obligation by the United
States, which, in either case, are not callable or redeemable at the option of
the issuer thereof, and shall also include a depositary receipt issued by a
bank or trust company as custodian with respect to any such Government
Obligation or a specific payment of interest on or principal of any such
Government Obligation held by such custodian for the account of the holder of a
depositary receipt, provided that (except as required by law) such
custodian is not authorized to make any deduction from the amount payable to
the holder of such depositary receipt from any amount received by the custodian
in respect of the Government Obligation evidenced by such depositary receipt.


 


“Guarantor” means
United Air Lines, Inc., a Delaware corporation and a wholly owned Subsidiary of
the Company, and its successor and assigns.


 


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


 


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


 


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


 


“Last Reported Sale
Price” of the Common Stock on any date means the closing sale price per
share (or, if no closing sale price is reported, the average of the bid and
asked 


 


5

















 


prices or, if there is more than one in either case, the average of the
average bid and the average asked prices) on that date as reported in composite
transactions for the principal U.S. national or regional securities exchange on
which the Common Stock is traded or, if the Common Stock is not listed on a
U.S. national or regional securities exchange, as reported by the Nasdaq
National Market.  If the Common Stock is
not listed for trading on a U.S. national or regional securities exchange and
not reported by the Nasdaq National Market on the relevant date, the “Last
Reported Sale Price” will be the last quoted bid price for the Common Stock
in the over-the-counter market on the relevant date as reported by
the National Quotation Bureau Incorporated or any similar U.S. system of
automated dissemination of quotation of securities prices.  If the Common Stock is not so quoted, the “Last
Reported Sale Price” will be the average of the mid-point of the last
bid and asked prices for the Common Stock on the relevant date from each of at
least three independent nationally recognized investment banking firms selected
by the Company for this purpose.  “Last
Reported Sale Price” of any other security shall have a correlative
meaning.


 


“Market Price”
means, with respect to any Repurchase Date or other date of determination, the
average of the Last Reported Sale Price of the Common Stock for the 20
consecutive Trading Days ending on the third Business Day prior to the
applicable Repurchase Date or date of determination, as the case may be (or, if
such third Business Day is not a Trading Day, then ending on the last Trading
Day prior to such third Business Day), appropriately adjusted in the good faith
judgment of the Board to take into account the occurrence, during the period
commencing on the first Trading Day during the period of 20 consecutive Trading
Days and ending on the applicable Repurchase Date or date of determination, as
the case may be, of any event described in Section 12.5 or Section 12.6.


 


“Market Value” of
the Common Stock means, as of any date of determination:


 


(a)           If the principal market for the
Common Stock is a national securities exchange in the United States, the Market
Value shall be the average of the last sale price of the Common Stock on such
exchange for the 20 consecutive trading days immediately prior to the date of
determination, all as quoted by such exchange.


 


(b)           If the principal market for the
Common Stock is the over-the-counter market, and the Common Stock
is quoted on The NASDAQ Stock Market (“NASDAQ”), the Market Value shall be the
average of the last sale price of the Common Stock on NASDAQ for the 20
consecutive trading days immediately prior to the date of determination, or if
the Common Stock is an issue for which the last sale price is not quoted on
NASDAQ, the average of the last bid price for the 20 consecutive trading days
immediately prior to the date of the determination.  If the relevant quotation did not exist at
such close of trading, then the Market Value shall be the relevant quotation on
the next preceding Business Day on which there was such a quotation.


 


(c)           If the principal market for the
Common Stock is the over-the-counter market, and the Common Stock
is not quoted on NASDAQ, the Market Value shall be determined in accordance
with market practice for the Common Stock, based on the average of the price
for such Common Stock for the 20 consecutive trading days immediately prior to
the date of determination, obtained from a generally recognized source agreed
to by the Company or the average of the closing bid quotation for the 20 


 


6

















 


consecutive trading days immediately prior to the date
of determination, obtained from such a source. 
If the relevant quotation did not exist at such close of trading, then
the Market Value shall be the relevant quotation on the next preceding Business
Day on which there was such a quotation.


 


“Maturity”, when
used with respect to any Note, means the date on which the principal of such
Note or an installment of principal becomes due and payable as therein or
herein provided, whether at the Stated Maturity or by declaration of
acceleration, call for redemption or otherwise.


 


“Note” or “Notes”
has the meaning stated in the fourth recital of this Indenture and more
particularly means any Note or Notes of the Company issued, authenticated and
delivered under this Indenture.


 


“Note Guarantee”
means the guarantee by the Guarantor as set forth in Section 11.1, as evidenced
by the Form of Notation of Guarantee annexed hereto as Exhibit B, to be
attached to each Note.


 


“Officer” means
the Chairman of the Board of Directors, the Chief Executive Officer, the
President, the Chief Financial Officer, any Executive Vice President, any
Senior Vice President, any Vice President, the Treasurer, the Corporate
Secretary, or any Assistant Treasurer or any Assistant Secretary of the
Company.


 


“Officers’ Certificate”
means a certificate signed by the Chairman of the Board, the Chief Executive
Officer, the President, the Chief Financial Officer, any Executive Vice
President or any Senior Vice President signing alone, or by any Vice President
signing together with the Corporate Secretary, any Assistant Secretary, the
Treasurer, or any Assistant Treasurer of the Company, and delivered to the
Trustee.


 


“Opinion of Counsel”
means a written opinion of legal counsel, who may be (a) the most senior
attorney serving in the capacity of legal counsel employed by the Company,
(b) Kirkland & Ellis LLP or (c) other counsel designated by the
Company and who shall be acceptable to the Trustee.


 


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


 


(i)            Notes theretofore cancelled by the
Trustee or delivered to the Trustee for cancellation;


 


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


 


7

















 


(iii)          Notes, except to the extent provided
in Section 4.4  and Section 4.5, with
respect to which the Company has effected defeasance and/or covenant defeasance
as provided in Article 4;


 


(iv)          Notes converted into Common Stock
pursuant to Article 12 and Notes deemed not outstanding pursuant to Article 10;
and


 


(v)           Notes which have been surrendered
pursuant to Section 3.6 or in exchange for or in lieu of which other Notes have
been authenticated and delivered pursuant to this Indenture, other than any
such Notes in respect of which there shall have been presented to the Trustee
proof satisfactory to it that such Notes are held by a Person reasonably
believed by the Trustee to be a bona fide purchaser in whose hands such Notes
are valid obligations of the Company;


 


provided,
however, that in determining whether the Holders of the requisite
principal amount of the Outstanding Notes have given any request, demand,
authorization, direction, notice, consent or waiver hereunder, or whether
sufficient funds are available for redemption or for any other purpose, and for
the purpose of making the calculations required by Section 313 of the Trust Indenture
Act, Notes owned by the Company, the Guarantor or any other obligor upon the
Notes or any Affiliate of the Company, the Guarantor or such other obligor
shall be disregarded and deemed not to be Outstanding, except that, in
determining whether the Trustee shall be protected in making such calculation
or in relying upon any such request, demand, authorization, direction, notice,
consent or waiver, only Notes which the Trustee knows to be so owned as a
result of written notice being provided to that effect by the Company, by the
Guarantor, by any such other obligor upon the Notes or any such Affiliate of
any of the foregoing, as the case may be, to the Trustee shall be so
disregarded.


 


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


 


“PBGC 6% Senior Notes”
means $500,000,000 in aggregate original principal amount of 6% Senior Notes
due 2031 issued pursuant to an Indenture dated February 1, 2006 between
the Company, Guarantor and The Bank of New York Trust Company, N.A., as
Trustee, as well as (i) any notes issued in exchange therefor or upon
transfer thereof and (ii) any increase in the principal amount thereof
pursuant to paragraph 1 of such notes.


 


“PBGC 8% Contingent
Notes” means up to $500,000,000 in aggregate original principal amount of
8% Contingent Senior Notes, if any, issued pursuant to an Indenture dated
February 1, 2006 between the Company, Guarantor and The Bank of New York
Trust Company, N.A., as Trustee, as well as any notes issued in exchange
therefor or upon transfer thereof.


 


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


 


“Place of Payment,”
when used with respect to the Notes, means the place or places where, subject
to the provisions of Section 9.2, the principal of, premium, if any, and
interest on such Notes are payable as specified in such Notes.


 


8

















 


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


 


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


 


“Redemption Notice”
has the meaning set forth in Section 10.3.


 


“Redemption Price”,
when used with respect to any Note to be redeemed, in whole or in part, means
the price at which such Note or part thereof is to be redeemed pursuant to this
Indenture.


 


“Register” has the
meaning set forth in Section 3.5.


 


“Registrar” has
the meaning set forth in Section 3.5.


 


“Regular Record Date”
for the interest payable on any Interest Payment Date on the Notes means the
date specified on the face of such Note.


 


“Responsible Officer”,
when used with respect to the Trustee, shall mean any officer within the
Corporate Trust Office of the Trustee with direct responsibility for the
administration of this Indenture, including the chairman or any vice chairman
of the board of directors, the chairman or any vice chairman of the executive
committee of the board of directors, the chairman of the trust committee, the
president, any senior vice president, any vice president, any assistant vice
president, the secretary, the treasurer, any assistant treasurer, the cashier,
any assistant cashier, any senior trust officer, any trust officer, the
controller, any assistant controller, or any other officer of the Trustee
customarily performing functions similar to those performed by any of the above
designated officers, respectively, and also means, with respect to a particular
corporate trust matter, any other officer to whom such corporate trust matter
is referred because of his knowledge of and familiarity with the particular
subject.


 


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


 


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


 


“Stated Maturity”,
when used with respect to any Note or any installment of principal thereof or
interest thereon means the date specified in such Note as the original date on
which the principal of such Note or such installment of principal or interest
is due and payable.  The Stated Maturity
of the principal amount of the Notes shall be February 1, 2021.


 


“Stock Record Date”
means, with respect to any dividend, distribution or other transaction or event
in which the holders of Common Stock have the right to receive any cash,
securities or other property or in which the Common Stock (or other applicable
security) is 


 


9

















 


exchanged for or converted into any combination of cash, securities or
other property, the date fixed for determination of stockholders entitled to
receive such cash, securities or other property (whether such date is fixed by
the Board of Directors or by statute, contract or otherwise).


 


“Subsidiary” means
(i) any corporation of which the Company at the time owns or controls,
directly or indirectly, more than 50% of the shares of outstanding stock having
general voting power under ordinary circumstances to elect a majority of the
board of directors of such corporation (irrespective of whether or not at the
time stock of any other class or classes of such corporation shall have or might
have voting power by reason of the happening of any contingency), (ii) a
partnership in which the Company holds a majority interest in the equity
capital or profits of such partnership, or (iii) any other Person (other
than a corporation or a partnership) in which the Company, directly or
indirectly, at the date of determination has (x) at least a majority ownership
interest or (y) the power to elect or direct the election of a majority of the
directors or other governing body of such Person.


 


“Termination of
Trading” means the occurrence of the following event:  the Company’s Common Stock (or other common
stock into which the Notes are convertible) is neither listed for trading on a
United States national securities exchange nor approved for trading on an established
over-the-counter trading market in the United States.


 


“Trading Day”
means a day during which trading in securities generally occurs on the New York
Stock Exchange or, if the applicable security is not listed on the New York
Stock Exchange, on the principal other national or regional securities exchange
on which the applicable security is then listed or, if the applicable security
is not listed on a national or regional securities exchange, on the National
Association of Securities Dealers Automated Quotation System or, if the
applicable security is not quoted on the National Association of Securities
Dealers Automated Quotation System, on the principal other market on which the
applicable security is then traded (provided that no day on which trading
of the applicable security is suspended on such exchange or other trading
market will count as a Trading Day).


 


“Trust Indenture Act”
or “TIA” means the Trust Indenture Act of 1939, as amended, as in effect
on the date of this Indenture, except as provided in Section 8.3.


 


“Trustee” means
the party named as such in the first paragraph of this Indenture until a
successor Trustee replaces it pursuant to the applicable provisions of this
Indenture, and thereafter means such successor Trustee.


 


“United States”
means the United States of America (including the States and the District of
Columbia), its territories, its possessions and other areas subject to its
jurisdiction.


 


(b)           The following terms shall have the
meanings specified in the Sections referred to opposite such term below:


 




	
  Term

  	
   

  	
  Section

  
	
  “Act”

  	
   

  	
  Section 1.4(a)

  
	
  “Co-Branded Card
  Agreement”

  	
   

  	
  Section 1.14

  
	
  “Company Repurchase
  Date”

  	
   

  	
  Section 10.9(a)

  






 


10

















 




	
  Term

  	
   

  	
  Section

  
	
  “Company Repurchase
  Election”

  	
   

  	
  Section 10.9(c)

  
	
  “Company Repurchase
  Notice”

  	
   

  	
  Section 10.9(b)

  
	
  “Company Repurchase
  Price”

  	
   

  	
  Section 10.9(a)

  
	
  “covenant defeasance”

  	
   

  	
  Section 4.5

  
	
  “CUSIP”

  	
   

  	
  Section 3.11

  
	
  “Defaulted Interest”

  	
   

  	
  Section 3.7(b)

  
	
  “defeasance”

  	
   

  	
  Section 4.4

  
	
  “Delivery Date”

  	
   

  	
  Section 10.4

  
	
  “DTC”

  	
   

  	
  Section 2.4

  
	
  “Event of Default”

  	
   

  	
  Section 5.1

  
	
  “Expiration Time”

  	
   

  	
  Section 12.5(e)

  
	
  “non-electing share”

  	
   

  	
  Section 12.6

  
	
  “Notice of Default”

  	
   

  	
  Section 5.1(4)

  
	
  “Plan”

  	
   

  	
  Recitals

  
	
  “poison pill”

  	
   

  	
  Section 12.5(b)

  
	
  “Purchased Shares”

  	
   

  	
  Section 12.5(e)

  
	
  “spin-off”

  	
   

  	
  Section 12.5(c)

  
	
  “Trigger Event”

  	
   

  	
  Section 12.5(c)

  






 


(c)           Whenever this Indenture refers to a
provision of the TIA, the provision is incorporated by reference and is made a
part of this Indenture.  The following
TIA terms used in this Indenture have the following meanings:


 


“indenture securities”
means the Notes;


 


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


 


“indenture to be
qualified” means this Indenture;


 


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


 


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


 


Section 1.2.            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 shall furnish to the Trustee such certificates and
opinions as may be required under Section 314(c) of the Trust Indenture Act,
each such certificate stating that all conditions precedent, if any, provided
for in this Indenture relating to the proposed action have been complied with
and each such opinion stating that in the opinion of such counsel all such
conditions precedent, if any, have been complied with.  Each such certificate or opinion shall be
given in the form of an Officers’ Certificate, if to be given by an Officer of
the Company, or an Opinion of Counsel, if to be given by counsel, and shall
comply with the requirements of Section 314(c) of the Trust Indenture Act and
any other requirements set forth in this Indenture.


 


11

















 


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


 


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


 


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


 


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


 


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


 


Section 1.3.            Form of Documents Delivered to
Trustee.  In any case where several
matters are required to be certified by, or covered by an opinion of, any
specified Person, it is not necessary that all such matters be certified by, or
covered by the opinion of, only one such Person, or that they be so certified or
covered by only one document, but one such Person may certify or give an
opinion with respect to some matters and one or more other such Persons as to
other matters, and any such Person may certify or give an opinion as to such
matters in one or several documents.


 


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


 


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


 


Section 1.4.            Acts
of Holders.


 


(a)           Any request, demand, authorization,
direction, notice, consent, waiver or other action provided by this Indenture
to be given or taken by Holders may be embodied in and evidenced by one or more
instruments of substantially similar tenor signed by such Holders in person or
by an agent duly appointed in writing. 
Except as herein otherwise expressly provided, such action shall become
effective when such instrument or instruments are received by the Trustee in
accordance with the provisions of this 


 


12

















 


Indenture and, where it is hereby expressly required,
to the Company.  Such instrument or instruments
(and the action embodied therein and evidenced thereby) are herein sometimes
referred to as the “Act” of the Holders signing such instrument or
instruments.  Proof of execution of any
such instrument or of a writing appointing any such agent shall be sufficient
for any purpose of this Indenture and (subject to Section 6.1) conclusive in
favor of the Trustee and the Company, if made in the manner provided in this
Section.


 


(b)           The fact and date of the execution by
any Person of any such instrument or writing may be proved by the affidavit of
a witness of such execution or by a certificate of a notary public or other
officer authorized by law to take acknowledgments of deeds, certifying that the
individual signing such instrument or writing acknowledged to him the execution
thereof.  Where such execution is by a
signer acting in a capacity other than his individual capacity, such
certificate or affidavit shall also constitute sufficient proof of his
authority.  The fact and date of the
execution of any such instrument or writing, or the authority of the Person
executing the same, may also be proved in any other manner which the Trustee
deems reasonably sufficient.


 


(c)           The ownership of Notes shall be
proved by references to the Register or in any other reasonable manner which
the Trustee deems sufficient.


 


(d)           Any request, demand, authorization,
direction, notice, consent, waiver or other Act of the Holder of any Note shall
bind every future Holder of the same Note and the holder of every Note issued upon
the registration of transfer thereof or in exchange therefor or in lieu thereof
in respect of anything done, omitted or suffered to be done by the Trustee or
the Company in reliance thereon, whether or not notation of such action is made
upon such Note.


 


(e)           If the Company shall solicit from the
Holders any request, demand, authorization, direction, notice, consent, waiver
or other Act, the Company may, at its option, by or pursuant to an Officers’
Certificate delivered to the Trustee, fix in advance a record date (which shall
not be more than 60 days prior to the date of such solicitation) for the
determination of Holders entitled to give such request, demand, authorization,
direction, notice, consent, waiver or other Act in the circumstances permitted
by the Trust Indenture Act, but the Company shall have no obligation to do
so.  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
the purposes of determining whether Holders of the requisite proportion of
Outstanding Notes have authorized or agreed or consented to such request,
demand, authorization, direction, notice, consent, waiver or other Act, and for
that purpose the Outstanding Notes shall be computed as of such record date; provided
that no such authorization, agreement or consent by the Holders on such record
date shall be deemed effective unless it shall become effective pursuant to the
provisions of clause (a) of this Section 1.4 not later than six months after
the record date.  If not set by the
Company with respect to solicitations by the Company as described in this
paragraph 1.4(e) or by the Trustee pursuant to Section 1.13 prior to the first
solicitation of a Holder of Notes made by any Person in respect of any such
Act, or, in the case of any such vote, prior to such vote, the record 


 


13

















 


date for any such Act or vote shall be the 30th
day (or, if later, the date of the most recent list of Holders required to be
provided pursuant to Section 6.8) prior to such first solicitation or vote, as
the case may be.  With regard to any
record date for an Act to be taken by the Holders, only the Holders on such
date (or their duly designated proxies) shall be entitled to give or take, or
vote on, the relevant action.


 


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


 


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


 


(2)           the Company by the Trustee, by the
Guarantor or by any Holder shall be sufficient for every purpose hereunder
(unless otherwise herein expressly provided) if in writing and mailed, first-class
postage prepaid, to the Company addressed to it at UAL Corporation, P.O. Box
66919, Chicago, Illinois 60666, Attention: 
Treasurer, or at any other address previously furnished in writing to
the Trustee by the Company, or


 


(3)           the Guarantor by the Trustee, by the
Company or by any Holder shall be sufficient for every purpose hereunder
(unless otherwise herein expressly provided) if in writing and mailed, first-class
postage prepaid, to the Guarantor addressed to it at United Air Lines, Inc.,
1200 East Algonquin Road, Elk Grove Township, Illinois  60007, Attention:  WHQLD: 
General Counsel, or at any other address previously furnished in writing
to the Trustee by the Guarantor.


 


Section 1.6.            Notice to Holders; Waiver.  Where this Indenture provides for notice to
Holders of any event, such notice shall be sufficiently given (unless otherwise
herein expressly provided) if in writing and mailed, registered mail, return
receipt requested, to each such Holder affected by such event, at its address
as it appears in the Register, not later than the latest date (if any), and not
earlier than the earliest date (if any), prescribed for the giving of such
notice and, in those cases where notice by publication is expressly permitted
or expressly required by the terms of this Indenture or the TIA, such notice
shall be sufficiently given (unless otherwise herein expressly provided) if published
once in an Authorized Newspaper.


 


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 of Notes given as
provided herein.  In any case where
notice is given to any Holder by publication pursuant to the express provisions
of this Indenture (unless otherwise herein expressly provided), neither the
failure to publish such notice, nor any defect in any notice so published,
shall affect the sufficiency of any notice by mail to other Holders of Notes
given as provided herein.  Any notice
mailed to a Holder in the manner herein prescribed shall be conclusively deemed
to have been received by such Holder, whether or not such Holder actually
receives such notice.


 


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If by reason of the
suspension of regular mail service or by reason of any other cause it shall be
impracticable to give such notice as provided above, then such notification as
shall be made with the approval of the Trustee shall constitute a sufficient
notification for every purpose hereunder. 
If it is impossible or, in the opinion of the Trustee, impracticable to
give any notice by publication in the manner herein required, then such
publication in lieu thereof as shall be made with the approval of the Trustee
shall constitute a sufficient publication of such notice.


 


Any request, demand,
authorization, direction, notice, consent or waiver required or permitted under
this Indenture shall be in the English language.


 


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 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.


 


Section 1.7.            Headings and Table of Contents.  The Article and Section headings herein, the
cross-reference sheet and the Table of Contents are for convenience only
and are not intended to be considered a part hereof and shall not affect the
construction hereof.


 


Section 1.8.            Successors and Assigns.  All covenants and agreements in this
Indenture by the Company shall bind its successors and assigns, whether so
expressed or not.  All covenants and
agreements in this Indenture by the Guarantor shall bind its successors and
assigns, whether so expressed or not.


 


Section 1.9.            Separability.  In case any provision of this Indenture or
the Notes shall be invalid, illegal or unenforceable, the validity, legality
and enforceability of the remaining provisions shall not in any way be affected
or impaired thereby.


 


Section 1.10.          Benefits of Indenture.  Nothing in this Indenture or in the Notes,
expressed or implied, shall give to any Person, other than the parties hereto
and their successors hereunder and the Holders, any benefit or any legal or
equitable right, remedy or claim under this Indenture.


 


Section 1.11.          Governing Law.  THIS INDENTURE, THE NOTES AND THE NOTE
GUARANTEE SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE
STATE OF NEW YORK WITHOUT REGARD TO PRINCIPLES OF CONFLICTS OF LAWS.  This Indenture is subject to the Trust
Indenture Act and if any provision hereof limits, qualifies, or conflicts with
a provision of the Trust Indenture Act that is required hereunder to be a part
of and govern this Indenture, 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, then such provision of the Trust Indenture Act shall be deemed to
apply to this Indenture as so modified or to be excluded, as the case may be.


 


Section 1.12.          Legal Holidays.  In any case where any Interest Payment Date,
Redemption Date, or Stated Maturity of any principal of any Note shall not be a
Business Day, then payment of principal, premium, if any, or interest need not
be made on such date, but may 


 


15

















 


be made on the next succeeding Business Day with the same force and
effect as if made on such date; provided that no interest shall accrue
on the amount so payable for the period from and after such Interest Payment
Date, Redemption Date, or Stated Maturity, as the case may be.


 


Section 1.13.          Trustee to Establish Record Dates.  The Trustee may (or, at the request of
Holders holding a majority in aggregate principal amount of Notes, shall) fix a
record date for the purpose of determining the Holders entitled to make, give
or take any request, demand, authorization, direction, notice, consent, waiver
or other action provided in this Indenture to be made, given or taken by
Holders; provided that the record date for any such action solicited by
the Company shall be governed by Section 1.4(e).  If such a record date is fixed, the Holders
on such record date and only such Holders, shall be entitled to make, give or
take such request, demand, authorization, direction, notice, consent, waiver or
other action, whether or not such Holders remain Holders after such record
date.


 


Section 1.14.          Notes Relative to Other Notes.  To the extent of the security provided
thereof, the Notes shall be junior in right of payment to the Existing Credit
Facility, the Company’s and the Guarantor’s obligations under the Co-Branded
Card Marketing Services Agreement between the Company, Guarantor, Chase Bank
U.S.A., N.A. and various other parties, dated as of July 1, 2001, as amended,
and any other secured indebtedness of the Company.  The Notes shall be pari passu in right of payment to the PBGC 6% Senior Notes,
and senior in right of payment to the Employee Notes and the PBGC 8% Contingent
Notes.  Except as otherwise provided
above, the Notes shall be pari passu
in right of payment with all current and future senior unsecured debt of the
Company or the Guarantor and senior in right of payment to all current and
future subordinated debt of the Company.


 


Section 1.15.          No Personal Liability of Directors,
Officers, Employees and Stockholders. 
No past, present or future director, officer, employee, incorporator or
stockholder of the Company or the Guarantor, as such, will have any liability
for any obligations of the Company or the Guarantor under the Notes, this
Indenture, the Note Guarantee or for any claim based on, in respect of, or by
reason of, such obligations or their creation. 
Each Holder of Notes by accepting a Note waives and releases all such
liability.  The waiver and release are
part of the consideration for issuance of the Notes.  The waiver may not be effective to waive liabilities
under the federal securities laws.


 


Section 1.16.          Communication by Holders with Other
Holders.  Holders of Notes may
communicate pursuant to Section 312(b) of the TIA with other Holders with
respect to their rights under this Indenture or the Notes.  The Company, the Trustee, the Registrar and
anyone else shall have the protection of Section 312(c) of the TIA.


 


Section 1.17.          Company Responsible for Making
Calculations.  Unless otherwise
specified in this Indenture, the Company will be responsible for making all
calculations called for under this Indenture and the Notes.  These calculations include, but are not
limited to, determination of the Last Reported Sale Price of the Common Stock
and the Market Price, the amount of accrued and unpaid interest payable on the
Notes, the Conversion Rate of the Notes and the Conversion Price of the
Notes.  The Company will make these
calculations in good faith, and, absent bad faith or manifest error, these
calculations will be final and binding on the Holders.  Promptly after the calculation thereof, the
Company will provide to each of the Trustee 


 


16

















 


and the Conversion Agent an Officers’ Certificate setting forth a
schedule of its calculations, and each of the Trustee and the Conversion Agent
is entitled to conclusively rely upon the accuracy of such calculations without
independent verification.  The Trustee
will forward the Company’s calculations to any Holder upon the request of such
Holder.


 


ARTICLE 2


 


Security Forms


 


Section 2.1.            Forms Generally.  The Notes shall be substantially in the form
of Exhibit A hereto.  The Notes
may have notations, legends or endorsements required by law, stock exchange
rule or depository rule or usage.  The
Company and the Trustee shall approve the form of the Notes and any notation,
legend or endorsement thereon.  Each Note
shall be dated the date of its issuance and shall show the date of its
authentication.


 


If temporary Notes are
issued as permitted by Section 3.4, the temporary Notes shall be substantially
in the form of the definitive Notes, but may have variations that the Company,
with the consent of the Trustee, considers appropriate for temporary
Notes.  Without unreasonable delay, the
Company shall prepare and the Trustee shall authenticate and deliver the definitive
Notes in exchange for temporary Notes.


 


The Notes are issuable in
global form pursuant to Section 2.3. 
Otherwise, pursuant to Section 3.5, the Notes may be issued in the form
of certificated Notes in registered form substantially in the form set forth in
Exhibit A.


 


The terms and provisions
contained in the Notes shall constitute, and are hereby expressly made, a part
of this Indenture and, to the extent applicable, the Company, the Guarantor and
the Trustee, by their execution and delivery of this Indenture, expressly agree
to such terms and provisions and to be bound thereby.


 


The permanent Notes shall
be printed, lithographed or engraved or produced by any combination of these
methods or may be produced in any other manner, all as determined by the
Officers executing such Notes, as evidenced by their execution of such Notes.


 


Section 2.2.            Form of Trustee’s Certificate of
Authentication.  The Trustee’s
certificate of authentication shall be in substantially the following form:


 


This is one of the Notes
issued under the within-mentioned Indenture.


 


	
   

  	
  THE BANK OF NEW YORK
  TRUST

  COMPANY, N.A., not in its individual capacity but

  solely as Trustee,

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
  Authorized Signatory

  	
   

  
					



 


17

















 


Section 2.3.            Notes in Global Form.  The Notes are issuable in temporary or
permanent global form substantially in the form of Exhibit A.  Notwithstanding the provisions of Section
3.2, any Note issued in global form shall represent such of the Outstanding
Notes as shall be specified therein and may provide that it shall represent the
aggregate amount of Outstanding Notes from time to time endorsed thereon and
that the aggregate amount of Outstanding Notes represented thereby may from
time to time be reduced to reflect exchanges, redemptions, purchases or conversions
of such Notes.  Any endorsement of a Note
in global form to reflect the amount of or any increase or decrease in the
amount of Outstanding Notes represented thereby, shall be made by the Trustee
in such manner and upon instructions given by such Person or Persons as shall
be specified therein or in the Company Order to be delivered to the Trustee
pursuant to Section 3.3 or Section 3.4. 
Subject to the provisions of Section 3.3 and, if applicable, Section
3.4, the Trustee shall deliver and redeliver any Note in global form in the
manner and upon instructions given by the Person or Persons specified therein
or in the applicable Company Order.  Any
instructions by the Company with respect to endorsement or delivery or
redelivery of a Note in global form shall be in writing but need not comply
with Section 1.2 hereof and need not be accompanied by an Opinion of Counsel.


 


The provisions of the
last paragraph of Section 3.3 shall apply to any Note in global form if such
Note was never issued and sold by the Company and the Company delivers to the
Trustee the Note in global form together with written instructions (which need
not comply with Section 1.2 and need not be accompanied by an Opinion of
Counsel) with regard to the reduction in the principal amount of Notes
represented thereby, together with the written statement contemplated by the
last paragraph of Section 3.3.


 


Section 2.4.            Global Note Legend.  The following legend shall appear on the face
of all global Notes issued under this Indenture:


 


“UNLESS AND UNTIL IT IS
EXCHANGED IN WHOLE OR IN PART FOR NOTES IN CERTIFICATED FORM, TRANSFERS OF THIS
GLOBAL NOTE SHALL BE LIMITED TO TRANSFERS IN WHOLE, BUT NOT IN PART, TO
NOMINEES OF THE DEPOSITORY TRUST COMPANY (55 WATER STREET, NEW YORK, NEW YORK
(“DTC”), CEDE & CO. OR TO A SUCCESSOR THEREOF OR SUCH SUCCESSOR’S
NOMINEE AND TRANSFERS MADE IN ACCORDANCE WITH THE RESTRICTIONS SET FORTH IN THE
INDENTURE.  UNLESS THIS NOTE IS PRESENTED
BY AN AUTHORIZED REPRESENTATIVE OF DTC TO THE COMPANY OR ITS AGENT FOR
REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY NOTE ISSUED IS
REGISTERED IN THE NAME OF CEDE & CO. OR SUCH OTHER NAME AS MAY BE
REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO
CEDE & CO. OR SUCH OTHER ENTITY AS MAY BE REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.”


 


18

















 


Notwithstanding the
provisions of Section 2.1 and Section 3.7, payment of principal of, premium, if
any, and interest on any Note in permanent global form shall be made to the
Person or Persons specified therein.


 


Section 2.5.            Transfer Restrictions.  The Notes shall be subject to the limitations
on transfer contained in Article Fourth, Part VI, Sections 5 through 7 of the
Corporation’s Restated Certificate of Incorporation.  The following legend shall appear on each
Note issued under this Indenture:


 


“THE TRANSFER OF THIS
NOTE OF UAL CORPORATION IS SUBJECT TO RESTRICTION PURSUANT TO ARTICLE FOURTH,
PART VI, SECTIONS 5, 6, AND 7 OF THE RESTATED CERTIFICATE OF INCORPORATION OF
UAL CORPORATION.  UAL CORPORATION WILL
FURNISH A COPY OF ITS RESTATED CERTIFICATE OF INCORPORATION TO THE HOLDER OF
RECORD OF THIS NOTE WITHOUT CHARGE UPON WRITTEN REQUEST ADDRESSED TO UAL
CORPORATION AT ITS PRINCIPAL PLACE OF BUSINESS.”


 


ARTICLE 3


 


The Securities


 


Section 3.1.            Aggregate Amounts; Issuance.


 


(a)           The aggregate principal amount of 5%
Senior Convertible Notes which may be authenticated and delivered under this
Indenture is $149,646,114.  The entire
aggregate amount of $149,646,114 of the 5% Senior Convertible Notes will be
issued on the date of this Indenture.


 


(b)           If the Notes are issued in whole or
in part in temporary or permanent global form, the Company shall notify the
Trustee and each of the Holders of the initial Depositary for such Notes.


 


(c)           All Notes shall be substantially
identical except as to denomination and the date from which interest, if any,
shall accrue.


 


Section 3.2.            Denominations.  Any Notes shall be issuable in registered
form without coupons in denominations of $1,000 and any integral multiple
thereof.


 


Section 3.3.            Execution, Authentication, Delivery
and Dating.  The Notes shall be
executed on behalf of the Company by the Chairman, President, Chief Executive
Officer or Chief Financial Officer under its corporate seal reproduced thereon
and attested to by the Secretary or any Assistant Secretary of the
Company.  The signatures of such Officers
on the Notes may be manual or facsimile. 
The Notes 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 Notes or did not hold
such offices at the date of such Notes.


 


19

















 


At any time and from time to time after the execution and delivery of
this Indenture, the Company may deliver Notes executed by the Company to the
Trustee for authentication, together with a Company Order for the
authentication, and make available for delivery such Notes, and the Trustee in
accordance with the Company Order shall authenticate and deliver such Notes.


 


Prior to the issuance of Notes after the date of this Indenture, the
Trustee shall receive and (subject to Section 6.1) shall be fully protected in
relying upon an Opinion of Counsel complying with Section 1.2 which shall also
state:


 


(i)            that
the form of such Notes has been established in conformity with the provisions
of this Indenture;


 


(ii)           that
the terms of such Notes have been established in conformity with the provisions
of this Indenture;


 


(iii)          that
such Notes, when authenticated and delivered by the Trustee and issued by the
Company in the manner and subject to any conditions specified in such Opinion
of Counsel, will constitute valid and legally binding obligations of the
Company, enforceable in accordance with their terms, subject to bankruptcy,
insolvency, reorganization and other laws of general applicability relating to
or affecting the enforcement of creditors’ rights and to general equity
principles;


 


(iv)          that
the Note Guarantee attached to such Notes will constitute the valid and legally
binding obligation of the Guarantor, enforceable in accordance with its terms,
subject to bankruptcy, insolvency, reorganization and other laws of general
applicability relating to or affecting the enforcement of creditors’ rights and
to general equity principles;


 


(v)           that
all laws and requirements in respect of the execution and delivery by the
Company of the Notes and the execution and delivery by the Guarantor of the
Note Guarantee have been complied with; and


 


(vi)          such
other matters as the Trustee may reasonably request.


 


If the Notes are to be issued in whole or in part in global form, then
the Company shall execute and the Trustee shall, in accordance with this
Section and the Company Order with respect to such Notes, authenticate and
deliver one or more Notes in global form that (i) shall represent and
shall be denominated in an amount equal to the aggregate principal amount of
the Outstanding Notes to be represented by such Note in global form,
(ii) shall be registered in the name of the Depositary for such Note or
Notes in global form or the nominee of such Depositary and (iii) shall be
delivered by the Trustee to such Depositary or pursuant to such Depositary’s
instruction.


 


Each Depositary designated by the Company for a Note in global form
must, at the time of its designation and at all times while it serves as
Depositary, be a clearing agency registered under the Securities Exchange Act
and any other applicable statute or regulation. 
The Trustee shall have no responsibility to determine if the Depositary
is so registered.  Each Depositary shall 


 


20

















 


enter into an agreement with
the Trustee governing the respective duties and rights of such Depositary and
the Trustee with regard to Notes issued in global form.


 


No Note shall be entitled to any benefits under this Indenture or be
valid or obligatory for any purpose until authenticated by the manual signature
of one of the authorized signatories of the Trustee or an Authenticating
Agent.  Such signature upon any Note
shall be conclusive evidence and the only evidence, that such Note has been
duly authenticated and delivered under this Indenture and is entitled to the
benefits of this Indenture.


 


Notwithstanding the foregoing, if any Note shall have been
authenticated and delivered hereunder but never issued and sold by the Company,
and the Company shall deliver such Note to the Trustee for cancellation as
provided in Section 3.9 together with a written statement (which need not
comply with Section 1.2 and need not be accompanied by an Opinion of Counsel)
stating that such Note has never been issued and sold by the Company, for all
purposes of this Indenture such Note shall be deemed never to have been
authenticated and delivered hereunder and shall not be entitled to the benefits
of this Indenture.


 


Section 3.4.            Temporary
Notes.  Pending the preparation of
definitive Notes, the Company may execute and, upon Company Order, the Trustee
shall authenticate and deliver temporary Notes which are printed, lithographed,
typewritten, mimeographed or otherwise produced, in any authorized
denomination, substantially of the tenor and form of the definitive Notes in
lieu of which they are issued and with such appropriate insertions, omissions,
substitutions and other variations as the Officers executing such Notes may
determine, as conclusively evidenced by their execution of such Notes.  Temporary Notes may be in global form.


 


Except in the case of temporary Notes in global form, each of which
shall be exchanged in accordance with the provisions thereof, if temporary
Notes are issued, the Company will cause permanent Notes to be prepared without
unreasonable delay.  After preparation of
such permanent Notes, the temporary Notes shall be exchangeable for such
permanent Notes of like tenor upon surrender of the temporary Notes at the
office or agency of the Company pursuant to Section 9.2 in a Place of Payment,
without charge to the Holder.  Upon
surrender for cancellation of any one or more temporary Notes, the Company
shall execute and the Trustee shall authenticate and deliver in exchange
therefor a like principal amount of permanent Notes of authorized denominations
and of like tenor.  Until so exchanged,
the temporary Notes shall in all respects be entitled to the same benefits
under this Indenture as permanent Notes.


 


Section 3.5.            Registration,
Registration of Transfer and Exchange. 
The Company shall cause to be kept at one of its offices or agencies to
be maintained in accordance with Section 9.2 in a Place of Payment a register
(the “Register”) in which, subject to such reasonable regulations as it
may prescribe, the Company shall provide for the registration of Notes and the
registration of transfers and exchanges of Notes.  The Trustee is hereby appointed as the
initial “Registrar” for the purpose of registering Notes and transfers
and exchanges of Notes as herein provided.


 


Upon surrender for registration of transfer of any Note at the office
or agency maintained pursuant to Section 9.2 in a Place of Payment, the Company
shall execute, and the Trustee shall 


 


21

















 


authenticate and deliver, in
the name of the designated transferee or transferees one or more new Notes, of
any authorized denominations and of a like aggregate principal amount and
tenor.


 


At the option of the Holder, Notes (except a Note in global form) may
be exchanged for other Notes, of any authorized denominations and of a like
aggregate principal amount containing identical terms and provisions, upon
surrender of the Notes to be exchanged at such office or agency.  Whenever any Notes are so surrendered for
exchange, the Company shall execute, and the Trustee shall authenticate and
deliver, the Notes which the Holder making the exchange is entitled to receive.


 


Notwithstanding any other provision (other than the provisions set
forth in the sixth and seventh paragraphs of this Section) of this Section,
unless and until it is exchanged in whole or in part for Notes in certificated
form, a Note in global form representing all or a portion of the Notes may not
be transferred except as a whole by the Depositary to a nominee of such
Depositary or by a nominee of such Depositary to such Depositary or another
nominee of such Depositary or by such Depositary or any such nominee to a
successor Depositary or a nominee of such successor Depositary.


 


If at any time the Depositary for the Notes notifies the Company that
it is unwilling or unable to continue as Depositary for the Notes or if at any
time the Depositary for the Notes shall no longer be eligible under Section
3.3, the Company shall appoint a successor Depositary with respect to the
Notes.  If a successor Depositary for the
Notes is not appointed by the Company within 90 days after the Company receives
such notice or becomes aware of such ineligibility, the Company shall execute,
and the Trustee, upon receipt of a Company Order for the authentication and
delivery of certificated Notes of like tenor, shall authenticate and deliver
Notes of like tenor in certificated form, in authorized denominations and in an
aggregate principal amount equal to the principal amount of the Note or Notes
of like tenor in global form in exchange for such Note or Notes in global form.


 


The Company may at any time in its sole discretion determine that Notes
issued in global form shall no longer be represented by such Notes in global
form.  In such event the Company shall execute,
and the Trustee, upon receipt of a Company Order for the authentication and
delivery of certificated Note or Notes of like tenor, shall authenticate and
deliver, Notes of like tenor in certificated form, in authorized denominations
and in an aggregate principal amount equal to the principal amount of the Note
or Notes of like tenor in global form in exchange for such Note or Notes in
global form.


 


The Depositary may surrender a Note in global form in exchange in whole
or in part for Notes in certificated form on such terms as are acceptable to
the Company and such Depositary. 
Thereupon, the Company shall execute, and the Trustee shall authenticate
and deliver, without service charge,


 


(i)            to each Person specified by such
Depositary a new certificated Note or Notes of like tenor, of any authorized
denomination as requested by such Person in aggregate principal amount equal to
and in exchange for such Person’s beneficial interest in the Note in global
form; and


 


22

















 


(ii)           to such Depositary a new Note in
global form of like tenor in a denomination equal to the difference, if any,
between the principal amount of the surrendered Note in global form and the
aggregate principal amount of certificated Notes delivered to Holders thereof.


 


Upon the exchange of a Note in global form for Notes in certificated
form, such Note in global form shall be cancelled by the Trustee.  Notes in certificated form issued in exchange
for a Note in global form pursuant to this Section shall be registered in such
names and in such authorized denominations as the Depositary for such Note in
global form, pursuant to instructions from its direct or indirect participants
or otherwise, shall instruct the Trustee. 
The Trustee shall deliver such Notes to the Persons in whose names such
Notes are so registered.


 


Whenever any Notes are surrendered for exchange, the Company shall
execute, and the Trustee shall authenticate and deliver, the Notes which the
Holder making the exchange is entitled to receive.


 


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


 


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


 


No service charge shall be made to a Holder for any registration of
transfer or for any exchange of Notes, but the Company may require payment of a
sum sufficient to cover any tax or other governmental charge that may be
imposed in connection with any registration or transfer or exchange of Notes,
other than exchanges pursuant to Section 3.4, or Section 10.6 not involving any
transfer.


 


The Company shall not be required (i) to issue, register the
transfer of, or exchange any Notes (A) for a period beginning at the
opening of business 15 days before the day of the mailing of a notice of
redemption of Notes selected for redemption under Section 10.3 and ending at
the close of business on the day of such mailing or (B) from and after the
date on which the Trustee has received a Company Repurchase Election under
Section 10.9 with respect to such Notes; or (ii) to register the transfer
of or exchange any Note so selected for redemption or repurchase, in whole or
in part, except the unredeemed or unpurchased portion of any Note being
redeemed or repurchased in part.


 


Section 3.6.            Replacement
Notes.  If a mutilated Note is
surrendered to the Trustee, together with such security or indemnity as may be
required by the Company or the Trustee to save each of them harmless, the
Company shall execute and the Trustee shall authenticate and deliver a
replacement Note of the same principal amount and Stated Maturity, if the
Trustee’s requirements are met.


 


23

















 


If there shall be delivered to the Company and the Trustee
(i) evidence to their satisfaction of the destruction, loss or theft of
any Note and (ii) such security or indemnity as may be required by them to
save each of them and any agent of either of them harmless, then, in the
absence of notice to the Company or the Trustee that such Note has been
acquired by a bona fide purchaser, the Company shall execute and the Trustee
shall authenticate and deliver in lieu of any such destroyed, lost or stolen
Note, a replacement Note of the same principal amount and Stated Maturity
containing identical terms and provisions and bearing a number not
contemporaneously outstanding.


 


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


 


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


 


Every new Note issued pursuant to this Section in lieu of any
destroyed, lost or stolen Note shall constitute an original additional
contractual obligation of the Company, whether or not the destroyed, lost or
stolen Note shall be at any time enforceable by anyone, and shall be entitled
to all the benefits of this Indenture equally and proportionately with any and
all other Notes duly issued hereunder.


 


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 Notes.


 


Section 3.7.            Payment of Interest; Interest
Rights Preserved.


 


(a)           Interest, if any, on any Note 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 Note (or one or
more Predecessor Securities) is registered at the close of business on the Regular
Record Date for such interest at the office or agency maintained for such
purpose pursuant to Section 9.2; provided, however, that, at the
option of the Company, interest on any Notes may be paid (i) by check
mailed to the address of the Person entitled thereto as it shall appear on the
Register of Holders of Notes; (ii) in cash, by wire transfer to an account
maintained by the Person entitled thereto as specified in the Register of
Holders of Notes; or (iii) with respect to any Interest Payment Date on or
prior to the first anniversary of the original issuance date of the Notes, in
Common Stock having a Market Value as of the close of business on the Business
Day immediately preceding the relevant Interest Payment Date equal to the
amount of interest not paid by check or wire transfer to the Person entitled to
receive such interest payment (but in any case if such amounts are to be paid
by the Trustee or the Paying Agent, such amounts must be received by the
Trustee or the Paying Agent no later than 10:00 a.m., New York City time, on
the scheduled date of such payment in immediately available funds and
designated for and sufficient to pay all interest, if any, on the Notes then
due).


 


24

















 


(b)           Any interest on any Note which is
payable, but is not punctually paid or duly provided for in accordance with
Section 3.7(a) on any Interest Payment Date (herein called “Defaulted
Interest”) shall forthwith cease to be payable to the Holder on the
relevant Regular Record Date by virtue of having been such Holder, and such
Defaulted Interest may be paid by the Company, at its election in each case, as
provided in clause (1) or (2) below:


 


(1)           The Company may elect to make payment
of any Defaulted Interest to the Persons in whose names the Notes (or their
respective Predecessor Securities) 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 Note and the date of the proposed payment, and at
the same time, the Company shall deposit with the Trustee no later than 10:00
a.m., New York City time, on the Special Record Date 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 clause (1) 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 fewer than
10 days prior to the date of the proposed payment and not fewer than 10 days
after the receipt by the Trustee of the notice of the proposed payment.  The Trustee shall promptly notify the Company
of such Special Record Date and, in the name and at the expense of the Company,
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 of Notes at its address as it appears in the Register, not fewer
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 Notes (or their respective
Predecessor Securities) are registered at the close of business on such Special
Record Date and shall no longer be payable pursuant to the following clause
(2).


 


(2)           The Company may make payment of any
Defaulted Interest to the Persons in whose names the Notes (or their respective
Predecessor Securities) are registered at the close of business on a specified
date in any other lawful manner not inconsistent with the requirements of any
securities exchange on which such Notes may be listed, and upon such notice as
may be required by such exchange, if, after notice given by the Company to the
Trustee of the proposed payment pursuant to this clause (2), such manner of
payment shall be deemed practicable by the Trustee.


 


(c)           Subject to the foregoing provisions
of this Section 3.7 and Section 3.5, each Note delivered under this Indenture
upon registration of transfer of or in exchange for or in lieu of any other
Note shall carry the rights to interest accrued and unpaid, and to accrue,
which were carried by such other Notes.


 


Section 3.8.            Persons
Deemed Owners.  Prior to due
presentment of any Note for registration of transfer, the Company, the Trustee
and any agent of the Company or the Trustee 


 


25

















 


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


 


None of the Company, the Trustee or any agent of the Company or the
Trustee shall have any responsibility or liability for any aspect of the
records relating to or payments made on account of beneficial ownership
interests of a Note in global form, or for maintaining supervising or reviewing
any records relating to such beneficial ownership interests.  Notwithstanding the foregoing, with respect
to any Note in global form, nothing herein shall prevent the Company or the
Trustee, or any agent of the Company or the Trustee, from giving effect to any
written certification, proxy or other authorization furnished by any Depositary
(or its nominee), as a Holder, with respect to such Note in global form or
impair, as between such Depositary and owners of beneficial interests in such
Note in global form, the operation of customary practices governing the
exercise of the rights of such Depositary (or its nominee) as Holder of such
Note in global form.


 


Section 3.9.            Cancellation.  All Notes surrendered for payment, redemption
or registration of transfer or exchange shall, if surrendered to any Person
other than the Trustee, be delivered to the Trustee and, upon receipt, shall be
promptly cancelled by it.  The Company at
any time may deliver Notes previously authenticated and delivered hereunder
which the Company may have acquired in any manner whatsoever, and may deliver
to the Trustee (or any other Person for delivery to the Trustee, on its behalf)
for cancellation any Notes previously authenticated hereunder which the Company
has not issued and sold, and all Notes so delivered shall be promptly cancelled
by the Trustee.  No Notes shall be
authenticated in lieu of or in exchange for any Notes cancelled as provided in
this Section, except as expressly permitted by this Indenture.  All cancelled Notes held by the Trustee shall
be disposed of as directed by a Company Order at the sole expense of the
Company.


 


Section 3.10.          Computation
of Interest.  Interest on any Notes
shall be computed on the basis of a 360-day year of twelve 30-day
months.


 


Section 3.11.          CUSIP
Numbers.  The Company in issuing the
Notes may use “CUSIP” numbers (if then generally in use), and, if so, the
Trustee shall use “CUSIP” numbers (in addition to the other identification
numbers printed on the Notes) 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 Notes or
as contained in any notice of a redemption and that reliance may be placed only
on the other identification numbers printed on the Notes, and any such redemption
shall not be affected by any defect in or omission of such numbers.


 


26

















 


ARTICLE 4


 


Satisfaction, Discharge and Defeasance


 


Section 4.1.            Termination
of Company’s Obligations Under the Indenture.  This Indenture shall upon Company Request
cease to be of further effect with respect to Notes (except as to any surviving
rights of registration of transfer or exchange of such Notes as herein
expressly provided for) and the Trustee, at the cost and expense of the Company,
shall execute proper instruments acknowledging satisfaction and discharge of
this Indenture with respect to such Notes (the Company, however, hereby
agreeing to reimburse the Trustee for any costs and expenses thereafter
incurred by the Trustee in connection with this Indenture or the Notes) when


 


(1)           either


 


(A)          all such Notes previously
authenticated and delivered (other than (i) such Notes which have been
destroyed, lost or stolen and which have been replaced or paid as provided in
Section 3.6, and (ii) such Notes for whose payment money has theretofore
been deposited in trust or segregated and held in trust by the Company and
thereafter repaid to the Company or discharged from such trust, as provided in
Section 9.3) have been delivered to the Trustee for cancellation; or


 


(B)           all Notes not theretofore delivered
to the Trustee for cancellation


 


(i)            have
become due and payable, or


 


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


 


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


 


and the Company or the Guarantor, in the case of (i), (ii) or (iii)
above, has deposited irrevocably or caused to be deposited irrevocably with the
Trustee as trust funds in trust, which shall be immediately due and payable,
for the purpose an amount sufficient to pay and discharge the entire indebtedness
on such Notes not theretofore delivered to the Trustee for cancellation, for
principal, premium, if any, and interest to the date of such deposit (in the
case of Notes which have become due and payable) or to the Stated Maturity or
Redemption Date, as the case may be provided, however; that there
shall not exist on the date of such deposit a Default or Event of Default; provided,
further, that such deposit shall not result in a breach or violation of,
or constitute a Default under this Indenture or a default under any other
agreement or instrument to which the Company or the Guarantor is a party or to
which the Company or the Guarantor is bound;


 


27

















 


(1)           the Company or the Guarantor has paid
or caused to be paid all other sums payable hereunder by the Company; and


 


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


 


Notwithstanding the satisfaction and discharge of this Indenture, the
obligation of the Company to the Trustee and any predecessor Trustee under
Section 6.9, the obligations of the Company to any Authenticating Agent under
Section 6.14 and, if money shall have been deposited with the Trustee pursuant
to subclause (1)(B) of this Section, the obligations under Section 3.3,
Section 3.5, Section 3.6, Section 3.10 and Section 4.2, the last paragraph of
Section 9.3 and Article 5 as it relates to the above-mentioned Sections
and Articles shall survive until the Notes have been indefeasibly paid in full;
provided, however, that the Company shall
reimburse the Trustee for any costs and expenses incurred by the Trustee in
connection with effectuating the provisions of Section 4.2 and Section 9.3.


 


Section 4.2.            Application
of Trust Funds.  Subject to the
provisions of the last paragraph of Section 9.3, all money deposited with the
Trustee pursuant to Section 4.1 shall be held in trust and applied by it, in
accordance with the provisions of the Notes and this Indenture, to the payment,
either directly or through any Paying Agent (including the Company acting as
its own Paying Agent) as the Trustee may determine, to the Persons entitled
thereto, of the principal, premium, if any, and any interest for whose payment
such money has been deposited with or received by the Trustee, but such money
need not be segregated from other funds except to the extent required by law.


 


Section 4.3.            Company’s
Option to Effect Defeasance or Covenant Defeasance.  The Company may at its option by Board
Resolution, at any time, with respect to the Notes and the Note Guarantee,
elect to have Section 4.4 (if applicable) or Section 4.5 (if applicable) be
applied to such Outstanding Notes and the Note Guarantee upon compliance with
the conditions set forth below in this Article 4.


 


Section 4.4.            Defeasance
and Discharge.  Upon the Company’s
exercise of the option specified in Section 4.3 applicable to this Section with
respect to the Notes, the Company and the Guarantor shall be deemed to have
been discharged from their obligations with respect to such Notes and the Note
Guarantee on and after the date the conditions set forth in Section 4.6 are
satisfied (hereinafter “defeasance”). 
For this purpose, such defeasance means that the Company shall be deemed
to have paid and discharged the entire indebtedness represented by such Notes
and the Note Guarantee which shall thereafter be deemed to be “Outstanding”
only for the purposes of Section 4.7 and the other Sections of this Indenture
referred to in clause (ii) of this Section, and to have satisfied all its other
obligations under such Notes, such Note Guarantee and this Indenture insofar as
such Notes and such Note Guarantee are concerned (and the Trustee, at the cost
and expense of the Company, shall on Company Order execute proper instruments
acknowledging the same), except the following which shall survive until
otherwise terminated or discharged hereunder: 
(i) the rights of Holders of Outstanding Notes to receive, solely from
the trust funds described in Section 4.6 (a) and as more fully set forth in
such Section, payments in respect of the principal of, premium, if any, and
interest, if any, on such Notes when such 


 


28

















 


payments are due; (ii) the
Company’s obligations with respect to such Notes under Section 3.4, Section
3.5, Section 3.6, Section 9.2 and Section 9.3 and such obligations as shall be
ancillary thereto; (iii) the rights, powers, trusts, duties and immunities of
the Trustee hereunder; (iv) the right of the Holders to convert any Notes as
provided in Article 12 and (v) this Article 4. 
Subject to compliance with this Article 4, the Company may exercise its
option under this Section notwithstanding the prior exercise of its option
under Section 4.5 with respect to such Notes and the Note Guarantee.  Following a defeasance, payment of such Notes
may not be accelerated because of an Event of Default.


 


Section 4.5.            Covenant
Defeasance.  Upon the Company’s
exercise of the option specified in Section 4.3 applicable to this Section with
respect to any Notes, the Company shall be released from its obligations under
Section 7.1 and Section 9.5 with respect to the Notes and the Note Guarantee on
and after the date the conditions set forth in Section 4.6 are satisfied
(hereinafter, “covenant defeasance”), and such Notes shall thereafter be
deemed to be not “Outstanding” for the purposes of any direction, waiver,
consent or declaration or Act of Holders (and the consequences of any thereof)
in connection with Section 7.1 and Section 9.5 but shall continue to be deemed
“Outstanding” for all other purposes hereunder. 
For this purpose, such covenant defeasance means that, with respect to
such Notes, the Company may omit to comply with and shall have no liability in
respect of any term, condition or limitation set forth in any such Section,
whether directly or indirectly, by reason of any reference elsewhere herein to
any such Section or such other covenant or by reason of reference in any such
Section or such other covenant to any other provision herein or in any other
document and such omission to comply shall not constitute a Default or an Event
of Default under Section 5.1(4) or otherwise, as the case may be, but, except
as specified above, the remainder of this Indenture and the Notes and the Note
Guarantee shall be unaffected thereby.


 


Section 4.6.            Conditions
to Defeasance or Covenant Defeasance. 
The following shall be the conditions to application of Section 4.4 or
Section 4.5 to any Notes:


 


(a)           The Company shall have deposited or
caused to be deposited irrevocably with the Trustee (or another trustee
satisfying the requirements of Section 6.11 who shall agree to comply with, and
shall be entitled to the benefits of, the provisions of Section 4.3 through
Section 4.8 inclusive and the last paragraph of Section 9.3 applicable to the
Trustee, for purposes of such Sections also a “Trustee”) as trust funds
in trust for the purpose of making the payments referred to below, specifically
pledged as security for, and dedicated solely to, the benefit of the Holders of
such Notes, with instructions to the Trustee as to the application thereof,
(A) cash in United States dollars in an amount or (B) non-callable
Government Obligations which through the payment of interest and principal in
respect thereof in accordance with their terms will provide, not later than one
day before the due date of any payment, cash in United States dollars in an
amount or (C) a combination of cash in United States dollars and non-callable
Government Obligations in an amount, sufficient, in each case, in the opinion
of a nationally recognized firm of independent certified public accountants
expressed in a written certification thereof delivered to the Trustee, to pay
and discharge, and which shall be applied by the Trustee to pay and discharge,
the principal of, premium, if any, and interest, if any, on such Notes on the
Maturity of such principal or installment of principal or interest on the day
on which such payments are due and payable in 


 


29

















 


accordance with the terms of this Indenture and such
Notes.  Before such a deposit the Company
may make arrangements satisfactory to the Trustee for the redemption of Notes
at a future date or dates in accordance with Article 10 which shall be given
effect in applying the foregoing.


 


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


 


(c)           In the case of an election under
Section 4.4, the Company shall have delivered to the Trustee an Officers’
Certificate and an Opinion of Counsel, in each case in form and substance
reasonably satisfactory to the Trustee, stating that (i) the Company has received
from, or there has been published by, the Internal Revenue Service a ruling, or
(ii) since the date of execution of this Indenture, there has been a change in
the applicable Federal income tax law, in either case to the effect that, and
based thereon such opinion shall confirm that, the Holders of such Notes will
not recognize income, gain or loss for Federal income tax purposes as a result
of such defeasance and will be subject to Federal income tax on the same amount
and in the same manner and at the same times, as would have been the case if
such deposit, defeasance and discharge had not occurred.


 


(d)           In the case of an election under
Section 4.5, the Company shall have delivered to the Trustee an Opinion of
Counsel to the effect that the Holders of such Notes will not recognize income,
gain or loss for Federal income tax purposes as a result of such deposit and
covenant defeasance and will be subject to Federal income tax on the same
amounts, in the same manner and at the same times as would have been the case
if such covenant defeasance had not occurred.


 


(e)           The Company shall have delivered to
the Trustee an Officers’ Certificate and an Opinion of Counsel, in each case in
form or substance reasonably satisfactory to the Trustee, each stating that all
conditions precedent to the defeasance under Section 4.4 or the covenant
defeasance under Section 4.5 (as the case may be) have been complied with and
an Opinion of Counsel to the effect that either (i) as a result of a deposit
pursuant to subsection (a) above and the related exercise of the Company’s
option under Section 4.4 or Section 4.5 (as the case may be), registration is
not required under the Investment Company Act of 1940, as amended, by the
Company, with respect to the trust funds representing such deposit or by the
trustee for such trust funds or (ii) all necessary registrations under said act
have been effected.


 


(f)            The Company shall have delivered to
the Trustee an Officers’ Certificate in form and substance reasonably
satisfactory to the Trustee, stating that it has been informed by the relevant
securities exchange(s) that the Notes, if then listed on any such securities
exchange, will not be delisted as a result of such deposit.


 


(g)           No Default or Event of Default with
respect to the Notes shall have occurred and be continuing (A) on the date of
such deposit or (B) insofar as Section 5.1(6) 


 


30

















 


and Section 5.1(7) are concerned, at any time during
the period ending on the 121st day after the date of such deposit
or, if longer, ending on the day following the expiration of the longest
preference period applicable to the Company in respect of such deposit (it
being understood that the condition in this condition shall not be deemed
satisfied until the expiration of such period).


 


(h)           Such defeasance or covenant
defeasance shall not (A) cause the Trustee for the Notes to have a conflicting
interest as defined in Section 6.12 or for purposes of Section 310(b) of the
Trust Indenture Act with respect to any securities of the Company or (B) result
in the trust arising from such deposit to constitute, unless it is qualified
as, a regulated investment company under the Investment Company Act of 1940, as
amended.


 


Section 4.7.            Deposited
Money and Government Obligations to Be Held in Trust.  Subject to the provisions of the last
paragraph of Section 9.3, all money and non-callable Government
Obligations (including the proceeds thereof) deposited with the Trustee
pursuant to Section 4.6 in respect of any Notes shall be held in trust and
applied by the Trustee, in accordance with the provisions of such Notes and
this Indenture, to the payment, either directly or through any Paying Agent
(including the Company acting as its own Paying Agent) as the Trustee may determine,
to the Holders of such Notes of all sums due and to become due thereon in
respect of principal, premium, if any, and interest, if any, but such money
need not be segregated from other funds except to the extent required by law.


 


The Company shall indemnify the Trustee against any tax, fee or other
charge, cost or expenses imposed on or assessed against the money or non-callable
Government Obligations deposited pursuant to Section 4.7 or the principal and
interest received in respect thereof.


 


Anything herein to the contrary notwithstanding, the Trustee shall
deliver or pay to the Company from time to time upon Company Request any money
or non-callable Government Obligations held by it as provided in this
Section 4.7 which, in the opinion of a nationally recognized firm of
independent public accountants satisfactory to the Trustee (including, without
limitation, compliance with any applicable Financial Accounting Standards Board
or Commission pronouncements, rules and regulations and computations set forth
therein) expressed in a written certification thereof delivered to the Trustee,
are in excess of the amount thereof which would then be required to be
deposited to effect an equivalent defeasance or covenant defeasance.


 


Section 4.8.            Reinstatement.  If the Trustee or the Paying Agent is unable
to apply any money in United States dollars or non-callable Government
Obligations in accordance with Section 4.4 or Section 4.5 by reason of any
order or judgment or any court or governmental authority enjoining, restraining
or otherwise prohibiting such application, then the Company’s obligations under
the Notes shall be revived and reinstated as though no deposit had occurred
pursuant to this Article 4 until such time as the Trustee or Paying Agent is
permitted to apply all such money in accordance with Section 4.4 or Section
4.5; provided, however, that if the Company makes any payment of
principal of (and premium, if any) or interest on any such Notes following the
reinstatement of its obligations, the Company shall be subrogated to the rights
of the Holders of such Notes to receive such payment from the money held by the
Trustee or the Paying Agent.


 


31

















 


ARTICLE 5


 


Defaults and Remedies


 


Section 5.1.            Events
of Default.  An “Event of Default”
occurs with respect to the Notes if (whatever the reason for such Event of
Default and whether it shall be voluntary or involuntary or be effected by
operation of law or pursuant to any judgment, decree or order of any court or
any order, rule or regulation of any administrative or governmental body):


 


(1)           the Company or the Guarantor defaults
in the payment of interest on any Note when the same becomes due and payable
and such Default continues for a period of 30 days;


 


(2)           the Company or the Guarantor defaults
in the payment of the principal of or any premium on any Note when the same
becomes due and payable at its Maturity or on redemption, repurchase at the
option of Holders or otherwise, when and as due by the terms of the Notes;


 


(3)           the Company fails to provide notice
of a Change in Ownership or a Fundamental Change pursuant to Section 10.8, or a
Company Repurchase pursuant to Section 10.9 to the Trustee and each Holder;


 


(4)           the Company or the Guarantor defaults
in the performance of, or breaches, any covenant or warranty of the Company or
the Guarantor in this Indenture with respect to any Note or Note Guarantee, as
the case may be (other than a covenant or warranty a default in whose
performance or whose breach is elsewhere in this Section 5.1 specifically dealt
with), and such Default or breach continues for a period of 60 days after there
has been given, by registered or certified mail, to the Company and the
Guarantor by the Trustee or to the Company, the Guarantor and the Trustee by
the Holders of at least 25% in aggregate principal amount of the Outstanding
Notes, a written notice specifying such Default or breach and requiring it to
be remedied and stating that such notice is a “Notice of Default”
hereunder; provided, however, that if the Company defaults in the
performance of, or breaches, any covenant or warranty of the Company contained
in Article 7, Section 9.6, Section 9.8 or Section 9.11, such Default will be an
Event of Default immediately, without any action by the Holders;


 


(5)           the Company defaults in its
obligation to deliver shares of Common Stock, cash or other property upon
conversion of any of the Notes upon the exercise of a Holder’s rights pursuant
to Article 12 and such Default continues for 15 days or more;


 


(6)           the Company or the Guarantor pursuant
to or within the meaning of any Bankruptcy Law (A) commences a voluntary case
or proceeding, (B) consents to the entry of an order for relief against it in
an involuntary case or proceeding or the commencement of any case against it,
(C) consents to the appointment of a Custodian of it or for all or
substantially all of its property, or (D) makes a general assignment for the
benefit of its creditors;


 


32

















 


(7)           a court of competent jurisdiction
enters an order or decree under any Bankruptcy Law that (A) is for relief
against the Company or the Guarantor in an involuntary case or proceeding, or
adjudicates the Company or the Guarantor insolvent or bankrupt, (B) appoints a
Custodian of the Company or the Guarantor for all or substantially all of its
respective property, or (C) orders the winding up or liquidation of the Company
or the Guarantor; and in each case the order or decree remains unstayed and in
effect for 60 days; or


 


(8)           the Note Guarantee ceases to be in
full force and effect or is declared null and void or the Guarantor denies that
it has any further liability under any Guarantee, or gives notices to such
effect (other than by reason of the termination of this Indenture or the
release of any such Note Guarantee in accordance with this Indenture), and such
condition shall have continued for a period of 30 days after written notice of
such failure requiring the Guarantor or the Company to remedy the same shall
have been given to the Company by the Trustee or to the Company and the Trustee
by the Holders of 25% in the aggregate principal amount at maturity of the
Notes Outstanding.  For purposes of
clarification, this 30-day grace period is in place of and not in
addition to the 60-day grace period in Section 5.1(4) above.


 


Section 5.2.            Acceleration;
Rescission and Annulment.  If an
Event of Default with respect to the Notes at the time Outstanding (other than
an Event of Default specified in Section 5.1(6) and Section 5.1(7)) occurs and
is continuing, the Trustee or the Holders of at least 25% in aggregate
principal amount of all of the Outstanding Notes, by written notice to the
Company (and, if given by the Holders, to the Trustee), may declare the
principal of and premium, if any, accrued and unpaid interest on, and all other
amounts due with respect to all the Notes to be due and payable and upon any
such declaration such principal, premium, interest and other amounts shall be
immediately due and payable.  In case an
Event of Default specified in Section 5.1(6) or Section 5.1(7) occurs and is
continuing, the principal of, premium, if any, accrued and unpaid interest on,
and all other amounts with respect to the Notes shall be automatically due and
payable immediately without any declaration or other act on the part of the
Trustee or the Holders.


 


At any time after a declaration of acceleration with respect to Notes
has been made and before a judgment or decree for payment of the money due has
been obtained by the Trustee as hereinafter in this Article 5 provided, the
Holders of a majority in aggregate principal amount of the Outstanding Notes,
by written notice to the Trustee, may rescind and annul such declaration and
its consequences if:


 


(1)           the Company has paid or deposited
with the Trustee a sum sufficient to pay:


 


(A)          all overdue installments of interest
on all Outstanding Notes,


 


(B)           the principal of (and premium, if
any, on, and all other amounts due with respect to) any Outstanding Notes which
have become due otherwise than by such declaration of acceleration and interest
thereon at the rate borne by the Notes,


 


33

















 


(C)           to the extent that payment of such
interest is lawful, interest upon overdue installments of interest at the rate
specified in the Notes, and


 


(D)          all sums paid or advanced by the
Trustee hereunder and the reasonable compensation, expenses, disbursements and
advances of the Trustee, its agents and counsel; and


 


(2)           all existing Defaults and Events of
Default with respect to Notes, other than the non-payment of the
principal of and premium, if any, on, and other amounts due with respect to the
Notes which have become due solely by such declaration of acceleration, have
been cured or waived as provided in Section 5.7.  No such rescission shall affect any
subsequent Default or impair any right consequent thereon.


 


Section 5.3.            Collection
of Indebtedness and Suits for Enforcement by Trustee.  The Company covenants that if


 


(1)           default is made in the payment of any
interest on any Note when such interest becomes due and payable and such
default continues for a period of 30 days, or


 


(2)           default is made in the payment of the
principal of (or premium, if any, on) any Notes at the Maturity thereof or on
redemption or otherwise, when and as due by the terms of that Note,


 


the Company will, upon demand of the Trustee, pay to it, for the
benefit of the Holders of such Notes, the whole amount then due and payable on
such Notes for principal, premium, if any, and interest with interest on any
overdue principal, premium, if any, and, to the extent that payment of such
interest shall be legally enforceable, on any overdue interest, at the rate or
rates prescribed therefore in such Notes and, in addition thereto, such further
amount as shall be sufficient to cover the costs and expenses of collection,
including the reasonable compensation, expenses, disbursements and advances of
the Trustee, its agents and counsel.


 


If the Company fails to pay such amount forthwith upon such demand, the
Trustee, in its own name and as trustee of an express trust, may institute a
judicial proceeding for the collection of the sums so due and unpaid, and may
prosecute such proceeding to judgment or final decree, and may enforce the same
against the Company, the Guarantor or any other obligor upon the Notes and
collect the moneys adjudged or decreed to be payable in the manner provided by
law out of the property of the Company, the Guarantor or any other obligor upon
the Notes, wherever situated.


 


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


 


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Section 5.4.            Trustee
May File Proofs of Claim.  In case of
any judicial proceeding directly involving the Company (or the Guarantor or any
other obligor upon the Notes), its property or its creditors acting as such, the
Trustee shall be entitled and empowered, by intervention in such proceeding or
otherwise, to take any and all actions authorized under Section 317(a)(2) of
the Trust Indenture Act or otherwise in order to have claims of the Holders and
the Trustee allowed in any such proceeding. 
In particular, the Trustee shall be authorized to collect and receive
any moneys or other property payable or deliverable on any such claims and to
distribute the same; and any Custodian in any such judicial proceeding is
hereby authorized by each Holder to make such payments to the Trustee and, in
the event that the Trustee shall consent to the making of such payments
directly to the Holders, to pay to the Trustee any amount due it for the
reasonable compensation, expenses, disbursements and advances of the Trustee,
its agents and counsel, and any other amounts due the Trustee under Section
6.9.


 


No provision of this Indenture shall be deemed to authorize the Trustee
to authorize or consent to or accept or adopt on behalf of any Holder any plan
of reorganization, arrangement, adjustment or composition affecting the Notes
or the rights of any Holder thereof or to authorize the Trustee to vote in
respect of the claim of any Holder in any such proceeding.


 


Section 5.5.            Trustee
May Enforce Claims Without Possession of Notes.  All rights of action and claims under this
Indenture or the Notes may be prosecuted and enforced by the Trustee without
the possession of any of the Notes or the production thereof in any proceeding
relating thereto.  Any such proceeding
instituted by the Trustee shall be brought in its own name as trustee of an
express trust, and any recovery of judgment shall, after provision for the
payment of the reasonable compensation, expenses, disbursements and advances of
the Trustee, its agents and counsel, be for the ratable benefit of the Holders
of the Notes in respect of which such judgment has been recovered.


 


Section 5.6.            Delay
or Omission Not Waiver.  No delay or
omission by the Trustee or any Holder of any Notes to exercise any right or
remedy accruing upon an Event of Default shall impair any such right or remedy
or constitute a waiver of or acquiescence in any such Event of Default.  Every right and remedy given by this Article
5 or by law to the Trustee or to the Holders may be exercised from time to
time, and as often as may be deemed expedient, by the Trustee or by the
Holders, as the case may be.


 


Section 5.7.            Waiver
of Past Defaults.  The Holders of a
majority in aggregate principal amount of Outstanding Notes by notice to the
Trustee may waive on behalf of the Holders of all Notes a past Default or Event
of Default with respect the Notes and its consequences except (i) a Default or
Event of Default in the payment of the principal of, premium, if any, or interest
on any Note or (ii) in respect of a covenant or provision hereof which pursuant
to Section 8.2 cannot be amended or modified without the consent of the Holder
of each Outstanding Note adversely affected. Upon any such waiver, such Default
shall cease to exist, and any Event of Default arising therefrom shall be
deemed to have been cured, for every purpose of this Indenture, but no such
waiver shall extend to any subsequent or other Default or Event of Default or
impair any right consequent thereon.  The
Company shall deliver to the Trustee an Officers’ Certificate stating that the
requisite percentage of Holders have consented to such waiver and attach copies
of such consents.  In case of any such
waiver, the Company, the Trustee and the Holders shall be restored to their
former positions and rights hereunder and under the Notes, respectively.


 


35

















 


Section 5.8.            Control
by Majority.  The Holders of a
majority in aggregate principal amount of the Outstanding Notes affected shall
have the right to direct the time, method and place of conducting any
proceeding for any remedy available to the Trustee or exercising any trust or
power conferred on it with respect to Notes; provided, however,
that the Trustee may refuse to follow any direction that (i) conflicts
with law or this Indenture, (ii) is (in the Trustee’s reasonable judgment)
prejudicial to the rights of another Holder or the Trustee or (iii) in the
Trustee’s reasonable judgment, may involve the Trustee in personal liability
(unless the Trustee is offered indemnity, reasonably satisfactory to it,
against the costs, expenses and liabilities the Trustee may incur to comply
with such direction).  Notwithstanding
the foregoing, the Trustee may take any other action deemed proper by the
Trustee which is not inconsistent with any such direction.


 


Section 5.9.            Limitation
on Suits by Holders.  No Holder of
any Note shall have any right to institute any proceeding, judicial or
otherwise, with respect to this Indenture, or for the appointment of a
Custodian, or for any other remedy hereunder, unless:


 


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


 


(2)           the Holders of at least 25% in
aggregate principal amount of the Outstanding Notes have made a written request
to the Trustee to institute proceedings in respect of such Event of Default in
its own name as Trustee hereunder;


 


(3)           such Holder or Holders have offered
to the Trustee reasonable indemnity and security against any loss, liability or
expense to be, or which may be, incurred by the Trustee in complying with such
request;


 


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


 


(5)           during such 60-day period, the
Holders of a majority in aggregate principal amount of the Outstanding Notes
have not given to the Trustee a direction inconsistent with such written
request.


 


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


 


Section 5.10.          Rights
of Holders to Receive Payment and to Convert.  Notwithstanding any other provision of this
Indenture, any Holder of a Note shall have the right, which is absolute and
unconditional, (i) to receive payment of principal of, premium, if any,
and, subject to Section 3.5 and Section 3.7, interest on the Note, on or after
the Stated Maturity expressed in the Note (or, in case of redemption, on the
Redemption Dates), (ii) to convert the Note in accordance with Article 12
and (iii) to bring suit for the enforcement of any such payment or the right to
convert on or after such respective dates, and such rights shall not be
impaired or affected without the consent of such Holder.


 


36

















 


Section 5.11.          Application
of Money Collected.  If the Trustee
collects any money pursuant to this Article 5, it shall pay out the money in
the following order, at the date or dates fixed by the Trustee and, in case of
the distribution of such money on account of principal, premium, if any, or
interest, upon presentation of the Notes and the notation thereon of the
payment if only partially paid and upon surrender thereof if fully paid:


 


First:  to the Trustee for amounts due under Section
6.9;


 


Second:  to Holders of Notes in respect of which or
for the benefit of which such money has been collected for amounts due and
unpaid on such Notes for principal of, premium, if any, and interest, ratably,
without preference or priority of any kind, according to the amounts due and
payable on such Notes for principal, premium, if any, and interest,
respectively; and


 


Third:  to the Company.


 


Section 5.12.          Restoration
of Rights and Remedies.  If the
Trustee or any Holder has instituted any proceeding to enforce any right or
remedy under this Indenture and such proceeding has been discontinued or
abandoned for any reason, or has been determined adversely to the Trustee or to
such Holder, then and in every such case, subject to any determination in such
proceeding, the Company, the Trustee and the Holders shall be restored
severally and respectively to their former positions hereunder and thereafter
all rights and remedies of the Trustee and the Holders shall continue as though
no such proceeding had been instituted.


 


Section 5.13.          Rights
and Remedies Cumulative.  Except as
otherwise provided with respect to the replacement or payment of mutilated,
destroyed, lost or stolen Notes in the last paragraph of Section 3.6, no right
or remedy herein conferred upon or reserved to the Trustee or the Holders is
intended to be exclusive of any other right or remedy, and every right and
remedy shall, to the extent permitted by law, be cumulative and in addition to
every other right and remedy given hereunder or now or hereafter existing at
law or in equity or otherwise.  The
assertion or employment of any right or remedy hereunder, or otherwise, shall
not prevent the concurrent assertion or employment of any other appropriate
right or remedy.


 


Section 5.14.          Undertaking
for Costs.  In any suit for the
enforcement of any right or remedy under this Indenture, or in any suit against
the Trustee for any action taken, suffered or omitted by it as Trustee, a court
may require any party litigant in such suit to file an undertaking to pay the
costs of such suit, and may assess costs against any such party litigant, in
the manner and to the extent provided in Section 315(e) of the Trust
Indenture Act; provided, that neither this Section nor the Trust
Indenture Act shall be deemed to authorize any court to require such an
undertaking or to make such an assessment in any suit instituted by the
Company, by the Trustee, by a Holder pursuant to Section 5.10 or by Holders of
more than 10% in principal amount of Outstanding Notes.


 


Section 5.15.          Waiver
of Stay or Extension Laws.  Each of
the Company and the Guarantor covenants (to the extent that it may lawfully do
so) that it will not at any time insist upon, or plead, or in any manner
whatsoever claim or take the benefit or advantage of, any stay or extension law
wherever enacted, now or at any time hereafter in force, which would prohibit 


 


37

















 


or forgive the Company or the
Guarantor from paying all or any portion of the principal of or premium on any
Notes when the same becomes due and payable at Maturity or on redemption,
repurchase at the option of Holders or otherwise as contemplated herein, or may
affect the covenants contained herein or any usury or other law or the
performance of this Indenture and each of the Company and the Guarantor (to the
extent that it may lawfully do so) hereby expressly waives all benefit or advantage
of any such law, and covenants that it will not hinder, delay or impede the
execution of any power herein granted to the Trustee, but will suffer and
permit the execution of every such power as though no such law had been
enacted.


 


ARTICLE 6


 


The Trustee


 


Section 6.1.            Certain Duties and
Responsibilities.


 


(a)           Except during the continuation of an
Event of Default:


 


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


 


(2)           In the absence of negligence or
willful misconduct on its part, the Trustee may conclusively rely, as to the
truth of the statements and the correctness of the opinions expressed therein,
upon certificates or opinions furnished to the Trustee and conforming to the
requirements of this Indenture; but in the case of any such certificates or
opinions which by any provision hereof are specifically required to be
furnished to the Trustee, the Trustee shall be under a duty to examine the same
to determine whether or not they conform to the requirements of this Indenture.


 


(b)           In case an Event of Default has
occurred and is continuing with respect to the Notes, the Trustee shall exercise
such of the rights and powers vested in it by this Indenture with respect to
the Notes, and use the same degree of care and skill in its exercise, as a
prudent person would exercise or use under the circumstances in the conduct of
his or her own affairs.


 


(c)           No provision of this Indenture shall
be construed to relieve the Trustee from liability for its own negligent
action, its own negligent failure to act, or its own willful misconduct, except
that:


 


(1)           this subsection shall not be
construed to limit the effect of subsection (a) of this Section;


 


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


 


(3)           the Trustee shall not be liable with
respect to any action taken or omitted to be taken by it in good faith in
accordance with the direction of the Holders of a 


 


38

















 


majority in aggregate principal amount of the
Outstanding Notes relating to the time, method and place of conducting any
proceeding for any remedy available to the Trustee, or exercising any trust or
power conferred upon the Trustee, under this Indenture with respect to the
Notes.


 


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


 


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


 


Section 6.2.            Notice
of Defaults.  If a Default occurs and
is continuing with respect to the Notes and if it is known to the Trustee, the
Trustee shall, within the earlier of 90 days after it occurs or 30 days after
it actually becomes known to the Trustee, transmit, to the Holders, in the
manner and to the extent provided in Section 313(c) of the Trust Indenture Act,
notice of such Default; provided, however, that, in the case of a
Default other than a Default in any payment on the Notes, the Trustee may
withhold the notice if and so long as the board of directors, the executive
committee or a committee of its Responsible Officers in good faith determines
that withholding such notice is in the interests of Holders of Notes; provided
further that, in the case of any Default or breach of the character
specified in Section 5.1(4) with respect to the Notes, no such notice to
Holders shall be given until at least 30 days after the occurrence thereof.


 


Section 6.3.            Rights
of Trustee.  Subject to the
provisions of Section 6.1 and Sections 313, 315 and 317 of the Trust Indenture
Act:


 


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


 


(b)           Any request or direction of the
Company mentioned herein shall be sufficiently evidenced by a Company Request
or Company Order (other than delivery of any Note, to the Trustee for
authentication and delivery pursuant to Section 3.3, which shall be
sufficiently evidenced as provided therein) and any resolution of the Board of
Directors may be sufficiently evidenced by a Board Resolution.


 


(c)           Whenever in the administration of
this Indenture the Trustee shall deem it desirable that a matter be proved or
established prior to taking, suffering or omitting any action hereunder, the
Trustee (unless other evidence be herein specifically prescribed) may, in the
absence of negligence or willful misconduct on its part, rely upon an Officers’
Certificate.


 


39

















 


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


 


(e)           The Trustee shall be under no
obligation to exercise any of the rights or powers vested in it by this
Indenture at the request or direction of any of the Holders pursuant to this
Indenture, unless such Holders shall have offered to the Trustee security or
indemnity reasonably satisfactory to the Trustee against the costs, expenses
and liabilities which might be incurred by it in compliance with such request
or direction.


 


(f)            The Trustee shall not be bound to
make any investigation into the facts or matters stated in any resolution,
certificate, statement, instrument, opinion, report, notice, request,
direction, consent, order, bond, debenture, note or other paper or document,
unless requested in writing to do so by the Holders of not less than a majority
in aggregate principal amount of the Notes at the time Outstanding, but the
Trustee, in its discretion, may make such further inquiry or investigation into
such facts or matters as it may see fit, and, if the Trustee shall determine to
make such further inquiry or investigation, it shall be entitled to examine the
books, records and premises of the Company and the Guarantor, personally or by
agent or attorney.


 


(g)           The Trustee may act through agents or
attorneys and shall not be responsible for the misconduct or negligence of any
agent or attorney appointed with reasonable care by it hereunder.


 


Section 6.4.            Trustee
May Hold Notes.  The Trustee, any
Paying Agent, any Registrar or any other agent of the Company, in its
individual or any other capacity, may become the owner or pledgee of Notes and,
subject to Sections 310(b) and 311 of the Trust Indenture Act, may otherwise
deal with the Company, an Affiliate or Subsidiary with the same rights it would
have if it were not Trustee, Paying Agent, Registrar or such other agent.


 


Section 6.5.            Money
Held in Trust.  Money held by the
Trustee in trust hereunder need not be segregated from other funds except to
the extent required by law.  The Trustee
shall be under no liability for interest on any money received by it hereunder
except as otherwise agreed with the Company.


 


Section 6.6.            Trustee’s
Disclaimer.  The recitals contained
herein and in the Notes, except the Trustee’s certificate of authentication,
shall be taken as the statements of the Company, and the Trustee assumes no
responsibility for their correctness. 
The Trustee makes no representation as to the validity or adequacy of
this Indenture or the Notes.  The Trustee
shall not be accountable for the Company’s use of the proceeds from the Notes
or for monies paid over to the Company pursuant to the Indenture.


 


Section 6.7.            Reports
by Trustee to the Holders.  Within 60
days after each May 15 of each year commencing with the first May 15 after the
first issuance of Notes pursuant to this Indenture, the Trustee shall transmit
by mail to all Holders of Notes as provided in Section 313(c) of the Trust
Indenture Act a brief report dated as of such May 15 if required by Section
313(a) 


 


40

















 


of the Trust Indenture
Act.  The Trustee also shall comply with
Section 313(b) and (d) of the Trust Indenture Act; provided that with
respect to the Trustee’s obligation to file any report with a stock exchange,
the Company will have provided prompt written notice to the Trustee that any
such Notes are listed on a stock exchange within a reasonable period of time
prior to the issuance of any such reports by the Trustee and at all other times
the Company will reasonably promptly notify the Trustee when any Notes are
listed on any stock exchange.


 


Section 6.8.            Securityholder
Lists.  The Trustee shall preserve in
as current a form as is reasonably practicable the most recent list available
to it of the names and addresses of Holders of Notes.  Every Holder of Notes, by receiving and
holding the same, agrees with the Company and the Trustee that neither the
Company nor the Trustee nor any agent of either of them shall be held
accountable by reason of any disclosure of information as to names and
addresses of Holders made pursuant to Section 312(a) of the Trust
Indenture Act.  If the Trustee is not the
Registrar, the Company shall furnish to the Trustee semiannually on or before
the last day of June and December in each year, and at such other times as the
Trustee may request in writing, a list, in such form and as of such date as the
Trustee may reasonably require, containing all the information in the
possession of the Registrar, the Company or any of its Paying Agents other than
the Trustee as to the names and addresses of Holders of Notes.


 


Section 6.9.            Compensation and Indemnity.


 


(a)            Other than as provided in the Fee
Agreement, dated as of September 30, 2005, by and among the Company, the
Guarantor and the Trustee, the Company covenants and agrees to pay to the
Trustee from time to time, and the Trustee shall be entitled to, such
compensation as shall be agreed to in writing between the Company and the
Trustee for all services rendered by it hereunder.  The Trustee’s compensation shall not be
limited by any law on compensation of a trustee of an express trust.  The Company shall pay or reimburse the
Trustee upon request for all reasonable out-of-pocket costs or
expenses or other charges, fees, fines or advances incurred or made by it in
connection with the performance of its duties under this Indenture, except any
such expense as may be attributable to its negligence or willful
misconduct.  Such expenses shall include
the reasonable compensation and expenses of the Trustee’s agents and counsel.


 


(b)           The Company and the Guarantor shall
indemnify the Trustee (including in its individual capacity, and its officers,
agents, directors and employees) for, and hold it harmless against, any loss,
liability or expense incurred by it without negligence or willful misconduct on
its part arising out of or in connection with its acceptance or administration
of the trust or trusts hereunder.  The
Trustee shall notify the Company reasonably promptly of any claim for which it
may seek indemnity.  The Company or the
Guarantor shall defend the claim and the Trustee shall reasonably cooperate in
the defense (it being understood that the Company will promptly upon request by
the Trustee reimburse the Trustee for any out-of-pocket costs or
expenses incurred by the Trustee in connection with such claim).  The Trustee may have separate counsel and the
Company or the Guarantor shall pay the reasonable fees and expenses of such
counsel.  Neither the Company nor the
Guarantor need pay for any settlement made without its consent.


 


41

















 


(c)           The Company need not reimburse any
expense or indemnify against any loss or liability incurred by the Trustee
through negligence or willful misconduct.


 


(d)           To secure the payment obligations of
the Company and the Guarantor pursuant to this Section 6.9, the Trustee shall
have a lien prior to the Notes on all money or property held or collected by
the Trustee, except such money or property held in trust to pay principal,
premium, if any, and interest on particular Notes.


 


(e)           When the Trustee incurs expenses or
renders services in connection with an Event of Default specified in Section
5.1(6) or Section 5.1(7), the expenses (including the reasonable charges and
expenses of its counsel) and the compensation for the services are intended to
constitute expenses of administration under any applicable Bankruptcy Law.


 


(f)            The provisions of this Section shall
survive the termination of this Indenture.


 


Section 6.10.          Replacement
of Trustee.


 


(a)           The resignation or removal of the
Trustee and the appointment of a successor Trustee shall become effective only
upon the successor Trustee’s acceptance of appointment as provided in Section
6.11.


 


(b)           The Trustee may resign at any time
with respect to the Notes by giving written notice thereof to the Company.  If the instrument of acceptance by a
successor Trustee required by Section 6.11 shall not have been delivered to the
Trustee within 30 days after the giving of such notice of resignation, the
resigning Trustee may petition any court of competent jurisdiction for the
appointment of a successor Trustee with respect to the Notes.


 


(c)           The Holders of a majority in
aggregate principal amount of the Outstanding Notes may remove the Trustee by
so notifying the Trustee and the Company and may appoint a successor Trustee
with the Company’s consent (which consent shall not be unreasonably withheld or
delayed); provided that no such consent on the part of the Company shall
be required if an Event of Default shall have occurred and be continuing.


 


(d)           If at any time:


 


(1)           the Trustee fails to comply with
Section 310(b) of the Trust Indenture Act after written request therefor by the
Company or by any Holder who has been a bona fide Holder of a Note for at least
six months;


 


(2)           the Trustee shall cease to be
eligible under Section 310(a) of the Trust Indenture Act and shall fail to
resign after written request therefor by the Company or by any Holder of a Note
who has been a bona fide Holder of a Note for at least six months; or


 


42

















 


(3)           the Trustee becomes incapable of
acting, is adjudged a bankrupt or an insolvent or a Custodian or public officer
takes charge of the Trustee or its property or affairs for the purpose of
rehabilitation, conservation or liquidation,


 


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


 


(e)           If the Trustee resigns or is removed
or if a vacancy exists in the office of Trustee for any reason, with respect to
Notes, the Company, by or pursuant to Board Resolution, shall promptly appoint
a successor Trustee with respect to the Notes (it being understood that any
such successor Trustee may be appointed with respect to the Notes and that at
any time there shall be only one Trustee with respect to the Notes) and shall
comply with the applicable requirements of Section 6.11.  If, within one year after such resignation,
removal or incapability, or the occurrence of such vacancy, a successor Trustee
with respect to the Notes has not been appointed by the Company and accepted
such appointment, then a successor Trustee shall be appointed by Act of the
Holders of a majority in aggregate principal amount of the Outstanding Notes
delivered to the Company and the retiring Trustee, the successor Trustee so
appointed shall, forthwith upon its acceptance of such appointment in
accordance with the applicable requirements of Section 6.11, become the
successor Trustee with respect to the Notes and to that extent supersede the
successor Trustee appointed by the Company. 
If no successor Trustee with respect to the Notes shall have been so
appointed by the Company or the Holders and accepted appointment in the manner
required by Section 6.11, any Holder who has been a bona fide Holder of a Note
for at least six months may, on behalf of itself and all others similarly
situated, petition any court of competent jurisdiction for the appointment of a
successor Trustee with respect to the Notes.


 


Section 6.11.          Acceptance of Appointment by
Successor.


 


(a)           In case of the appointment hereunder
of a successor Trustee with respect to all Notes, every such successor Trustee
shall execute, acknowledge and deliver to the Company and to the retiring
Trustee an instrument accepting such appointment.  Thereupon, the resignation or removal of the
retiring Trustee shall become effective, and the successor Trustee, without
further act, deed or conveyance, shall become vested with all the rights,
powers and duties of the retiring Trustee; but, on the request of the Company
or the successor Trustee, such retiring Trustee shall, upon payment of its
charges, execute and deliver an instrument transferring to such successor
Trustee all the rights, powers and trusts of the retiring Trustee and shall
duly assign, transfer and deliver to such successor Trustee all property and
money held by such retiring Trustee hereunder.


 


(b)           In case of the appointment hereunder
of a successor Trustee with respect to the Notes, the Company, the retiring
Trustee and such successor Trustee shall execute and deliver an indenture
supplemental hereto wherein such successor Trustee shall accept 


 


43

















 


such appointment and which (i) shall contain such
provisions as shall be necessary or desirable to transfer and confirm to, and
to vest in, such successor Trustee all the rights, powers, trusts and duties of
the retiring Trustee with respect to the Notes and (ii) shall add to or change
any of the provisions of this Indenture as shall be necessary to provide for or
facilitate the administration of the trusts hereunder by more than one Trustee,
it being understood that nothing herein or in such supplemental indenture shall
constitute such Trustees co-trustees of the same trust and that each such
Trustee shall be trustee of a trust or trusts hereunder separate and apart from
any trust or trusts hereunder administered by any other such Trustee and upon
the execution and delivery of such supplemental indenture the resignation or
removal of the retiring Trustee shall become effective to the extent provided
therein and each such successor Trustee, without any further act, deed or
conveyance, shall become vested with all the rights, powers, trusts and duties
of the retiring Trustee with respect to the Notes; but, on request of the
Company or any successor Trustee, such retiring Trustee shall duly assign,
transfer and deliver to such successor Trustee all property and money held by
such retiring Trustee hereunder with respect to the Notes.


 


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


 


(d)           No successor Trustee shall accept its
appointment unless at the time of such acceptance such successor Trustee shall
be qualified and eligible under Section 310 of the Trust Indenture Act.


 


(e)           The Company shall give notice of each
resignation and each removal of the Trustee with respect to the Notes and each
appointment of a successor Trustee with respect to the Notes in the manner
provided for notices to the Holders of Notes in Section 1.6.  Each notice shall include the name of the
successor Trustee with respect to the Notes and the address of its Corporate
Trust office.


 


Section 6.12.          Disqualification; Eligibility.


 


(a)           If the Trustee has or shall acquire a
conflicting interest within the meaning of Section 310(b) of the Trust
Indenture Act, the Trustee shall either eliminate such interest or resign, to
the extent and in the manner provided by, and subject to the provision of
Section 310(b) of the Trust Indenture Act and this Indenture.


 


(b)           There shall at all times be a Trustee
hereunder which shall be eligible pursuant to Section 310 of the Trust
Indenture Act to act as Trustee and shall have a combined capital and surplus
of at least $100,000,000.  If such
corporation publishes reports of condition at least annually, pursuant to law
or the requirements of Federal, State, Territorial or District of Columbia
supervising or examining authority, then for the purposes of this Section, the
combined capital and surplus of such corporation shall be deemed to be its
combined capital and surplus as set forth in its most recent report of
condition so published.  If at any time
the Trustee shall cease to be eligible in accordance 


 


44

















 


with the provisions of this Section, it shall resign
immediately in the manner and with the effect hereinafter specified in this
Article 6.


 


Section 6.13.          Merger,
Conversion, Consolidation or Succession to Business.  Any corporation into which the Trustee may be
merged or converted or with which it may be consolidated, or any corporation
resulting from any merger, conversion or consolidation to which the Trustee
shall be a party, or any corporation succeeding to all or substantially all the
corporate trust business of the Trustee, shall be the successor of the Trustee
hereunder, provided such corporation shall be otherwise qualified and eligible
under this Article 6, without the execution or filing of any paper or any
further act on the part of any of the parties hereto.  In case any Notes shall have been
authenticated, but not delivered, by the Trustee then in office, any successor
by merger, conversion or consolidation to such authenticating Trustee may adopt
such authentication and deliver the Notes so authenticated with the same effect
as if such successor Trustee had itself authenticated such Notes.


 


Section 6.14.          Appointment
of Authenticating Agent.  The Trustee
may appoint an Authenticating Agent or Agents with respect to the Notes which
shall be authorized to act on behalf of the Trustee to authenticate Notes
issued upon original issue and upon exchange, registration of transfer or
partial redemption thereof, and Notes so authenticated shall be entitled to the
benefits of this Indenture and shall be valid and obligatory for all purposes
as if authenticated by the Trustee hereunder. 
Any such appointment shall be evidenced by an instrument in writing
signed by a Responsible Officer of the Trustee, a copy of which instrument
shall be promptly furnished to the Company. 
Wherever reference is made in this Indenture to the authentication and
delivery of Notes by the Trustee or the Trustee’s certificate of
authentication, such reference shall be deemed to include authentication and
delivery on behalf of the Trustee by an Authenticating Agent and a certificate
of authentication executed on behalf of the Trustee by an Authenticating
Agent.  Each Authenticating Agent shall
be acceptable to the Company and shall at all times be a bank or trust company
or corporation organized and doing business and in good standing under the laws
of the United States of America or of any State or the District of Columbia,
authorized under such laws to act as Authenticating Agent, having a combined
capital and surplus of not less that $100,000,000 and subject to supervision or
examination by Federal, State, Territorial or District of Columbia
authorities.  If such Authenticating
Agent publishes reports of condition at least annually, pursuant to law or the
requirements of the aforesaid supervising or examining authority, then for the
purposes of this Section, the combined capital and surplus of such
Authenticating Agent shall be deemed to be its combined capital and surplus as
set forth in its most recent report of condition so published.  In case at any time an Authenticating Agent
shall cease to be eligible in accordance with the provisions of this Section,
such Authenticating Agent shall resign immediately in the manner and with the
effect specified in this Section.


 


Any corporation into which an Authenticating Agent may be merged or
converted or with which it may be consolidated, or any corporation resulting
from any merger, conversion or consolidation to which such Authenticating Agent
shall be a party, or any corporation succeeding to all or substantially all of
the corporate agency or corporate trust business of an Authenticating Agent
shall continue to be an Authenticating Agent, provided such corporation
shall be otherwise eligible under this Section, without the execution or filing
of any paper or further act on the part of the Trustee or the Authenticating
Agent.


 


45

















 


An Authenticating Agent for the Notes may at any time resign by giving
written notice of resignation to the Trustee and to the Company.  The Trustee may at any time terminate the
agency of an Authenticating Agent by giving written notice of termination to
such Authenticating Agent and to the Company. 
Upon receiving such a notice of resignation or upon such a termination,
or in case at any time such Authenticating Agent shall cease to be qualified
and eligible in accordance with the provisions of this Section, the Trustee may
appoint a successor Authenticating Agent which shall be acceptable to the
Company and shall give notice of such appointment to all Holders of Notes with
respect to which such Authenticating Agent will serve in the manner set forth
in Section 1.6.  Any successor
Authenticating Agent upon acceptance of its appointment hereunder shall become
vested with all the rights, powers and duties of its predecessor hereunder,
with like effect as if originally named as an Authenticating Agent herein.  No successor Authenticating Agent shall be
appointed unless eligible under the provisions of this Section.


 


The Company agrees to pay to each Authenticating Agent from time to
time reasonable compensation including reimbursement of its reasonable expenses
for its services under this Section.


 


If an appointment is made pursuant to this Section, the Notes may have
endorsed thereon, in addition to or in lieu of the Trustee’s certificate of
authentication, an alternate certificate of authentication substantially in the
following form:


 


This is one of the Notes issued under the within-mentioned
Indenture.


 


	
   

  	
  The Bank of New York Trust Company, N.A., not in its individual
  capacity but solely in its capacity as Trustee,

  
	
   

  	
   

  	
   

  
	
   

  	
  By: 

  	
   

  	
   

  
	
   

  	
   

  	
  as Authenticating Agent

  
	
   

  	
   

  	
   

  
	
   

  	
  By: 

  	
   

  	
   

  
	
   

  	
   

  	
  Authorized Officer

  
					



 


Section 6.15.          Trustee’s
Application for Instructions from the Company.  Any application by the Trustee for written
instructions from the Company may, at the option of the Trustee, set forth in
writing any action proposed to be taken or omitted by the Trustee under this
Indenture and the date on and/or after which such action shall be taken or such
omission shall be effective.  The Trustee
shall not be liable to the Company for any action taken by, or omission of, the
Trustee in accordance with a proposal included in such application on or after the
date specified in such application (which date shall not be less than fifteen
Business Days after the date any officer of the Company actually receives such
application, unless any such officer shall have consented in writing to any
earlier date) unless prior to taking any such action (or the effective date in
the case of an omission), the Trustee shall have received written instructions
in response to such application specifying the action to be taken or omitted.


 


Section 6.16.          Preferential
Collection of Claims Against Company. 
If and when the Trustee shall be or become a creditor of the Company (or
the Guarantor or any other obligor 


 


46

















 


upon the Notes), the Trustee
shall be subject to the provisions of Section 311(a) of the Trust
Indenture Act regarding the collection of claims against the Company (or the
Guarantor or any such other obligor).


 


ARTICLE 7


 


Consolidation, Merger or Sale by the Company


 


Section 7.1.            Consolidation,
Merger or Sale of Assets Only on Certain Terms.  The Company shall not merge or consolidate
with or into any other Person, or sell, convey, transfer, lease or otherwise
dispose of all or substantially all of its assets to any Person, whether in a
single transaction or a series of transactions, unless (i) (A) in the case of a
merger or consolidation, the Company is the surviving Person or (B) in the case
of a merger or consolidation where the Company is not the surviving Person and
in the case of any such sale, conveyance, transfer, lease or other disposition,
the successor or acquiring corporation is a corporation organized and existing
under the laws of the United States or a State thereof and such corporation
expressly assumes by supplemental indenture all the obligations of the Company
under the Notes and under this Indenture (including the conversion rights set
forth in Article 12), (ii) if, as a result of such transaction, the Notes
became convertible or exchangeable into common stock or securities issued by a
third party, such third party fully and unconditionally guarantees all
obligations under the Notes and this Indenture, (iii) immediately thereafter,
giving effect to such merger or consolidation, or such sale, conveyance,
transfer, lease or other disposition, no Default or Event of Default shall have
occurred and be continuing, and (iv) the Company has delivered to the Trustee
an Officers’ Certificate and an Opinion of Counsel each stating that such
merger or consolidation, or such sale, conveyance, transfer, lease or other
disposition complies with this Article 7 and, if a supplemental indenture is
required in connection with such transaction, such supplemental indenture
complies with this Article 7 and Article 8 and that all conditions precedent
herein provided for or relating to such transaction have been complied
with.  Subject to the mandatory
redemption provisions of Section 10.8, in the event of the assumption by a
successor corporation of the obligations of the Company as provided in clause
(i)(B) of the immediately preceding sentence as a result of a merger or
consolidation, such successor corporation shall succeed to and be substituted
for the Company hereunder and under the Notes and all such obligations of the
Company shall terminate; provided, however, that no sale,
conveyance, transfer, lease or disposition shall have the effect of releasing
the Person named as the “Company” in the first paragraph of this
Indenture or any successor Person which shall theretofore have become such in
the manner prescribed in this Article from its liability as obligor and maker
on any of the Notes.


 


ARTICLE 8


 


Supplemental Indentures


 


Section 8.1.            Supplemental
Indentures Without Consent of Holders. 
Without the consent of any Holders, the Company, when authorized by a
Board Resolution, the Guarantor and the Trustee, at any time and from time to
time, may enter into indentures supplemental hereto, in form reasonably
satisfactory to the Trustee, for any of the following purposes:


 


47

















 


(1)           to evidence the succession of another
Person to the Company and the assumption by any such successor of the covenants
of the Company herein and in the Notes;


 


(2)           to add to the covenants of the
Company for the benefit of the Holders or to surrender any right or power
herein conferred upon the Company;


 


(3)           to add any additional Events of
Default;


 


(4)           to add to or change any of the
provisions of this Indenture to such extent as shall be necessary to facilitate
the issuance of Notes in global form;


 


(5)           [RESERVED]


 


(6)           to secure the Notes or Note Guarantee;


 


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


 


(8)           to evidence and provide for the
acceptance of appointment hereunder by a successor Trustee with respect to the
Notes and to add to or change any of the provisions of this Indenture as shall
be necessary to provide for or facilitate the administration of the trusts
hereunder by more than one Trustee, pursuant to the requirements of Section
6.10 and Section 6.11;


 


(9)           to make provision with respect to the
conversion rights of the Holders pursuant to the requirements of Section 12.6
or the obligations of a successor to the Company pursuant to the requirements
of Section 7.1;


 


(10)         to increase the Conversion Rate or increase
the consideration payable to any Holder, provided that no such increase
individually or in the aggregate with all other such increases has or will have
an adverse effect on the interests of the Holders; or


 


(11)         to cure any ambiguity, correct any mistake
or correct or supplement any provision herein which may be defective or
inconsistent with any other provision herein or to make any other provisions
with respect to matters or questions arising under this Indenture which shall
not be inconsistent with the provisions of this Indenture, provided such other
provisions shall not adversely affect the interests of the Holders of Notes.


 


Section 8.2.            With
Consent of Holders.  With the written
consent of the Holders of not less than a majority of the aggregate principal
amount of the Outstanding Notes affected by such supplemental indenture, by Act
of said Holders delivered to the Company and the Trustee, the Company when
authorized by a Board Resolution, the Guarantor and the Trustee may enter into
an indenture or indentures supplemental hereto to add any provisions to or to
change or eliminate any provisions of this Indenture or of any other indenture
supplemental hereto or to modify the rights of the Holders of Notes and the
Note Guarantee; provided, however, that without the consent of
the Holder of each Outstanding Note affected thereby, an amendment, change or
modification under this Section 8.2 may not:


 


48

















 


(1)           change the Stated Maturity of the
principal of, or any installment of principal of or interest on, any Note, or
reduce the principal amount thereof or the rate of interest thereon or any
premium payable upon the redemption or repurchase thereof, or change the coin
or currency in which, any Notes or any premium or the interest thereon is
payable, or impair the right to institute suit for the enforcement of any such
payment on or after the Stated Maturity thereof (or, in the case of redemption
or repurchase, on or after the applicable Redemption Date or Company Repurchase
Date);


 


(2)           reduce the percentage in principal
amount of the Outstanding Notes, the consent of whose Holders is required for
any such supplemental indenture, or the consent of whose Holders is required
for any waiver (of compliance with certain provisions of this Indenture or
certain Defaults hereunder and their consequences) provided for in this
Indenture;


 


(3)           change any obligation of the Company
to maintain an office or agency in the places and for the purposes specified in
Section 9.2;


 


(4)           make any change in Section 5.7 or
this Section 8.2 except to increase any percentage or to provide that certain
other provisions of this Indenture cannot be modified or waived without the
consent of the Holders of each Outstanding Note affected thereby;


 


(5)           impair the right to convert the Notes
into shares of Common Stock on and subject to the terms set forth herein,
including Section 12.6, or reduce the number of shares of Common Stock or other
property into which the Notes may be converted other than as expressly
contemplated by Section 12.4 or Section 12.5;


 


(6)           modify the ranking or priority of any
Note or the Note Guarantee in respect thereof of the Company or the Guarantor,
as the case may be, in any manner adverse to the Holders of the Notes;


 


(7)           release the Guarantor from any of its
obligations under its Note Guarantee or this Indenture;


 


(8)           reduce the Redemption Price of any
Notes;


 


(9)           make the Notes payable in money or
securities other than as stated in the Note;


 


(10)         make any amendment, change or
modification to this Section 8.2;


 


(11)         make any change that materially
adversely affects the right of a Holder to require the Company to purchase the
Notes in accordance with the terms of Section 10.8 and Section 10.9; or


 


(12)         impair the right to institute suit for
the enforcement of any payment with respect to the Notes or under the Note
Guarantee.


 


49

















 


Notwithstanding the foregoing, no amendment, change or modification of
any of the rights or obligations of the Trustee or any of its agents under this
Indenture or the Note Guarantee shall be effective unless consented to by the
Trustee in writing.


 


It is not necessary under this Section 8.2 for the Holders to consent
to the particular form of any proposed supplemental indenture, but it is
sufficient if they consent to the substance thereof.


 


Section 8.3.            Compliance
with Trust Indenture Act.  Every
supplemental indenture executed pursuant to this Article 8 shall comply with
the requirements of the Trust Indenture Act as then in effect.


 


Section 8.4.            Execution
of Supplemental Indentures.  In
executing or accepting the additional trusts created by any supplemental
indenture permitted by this Article 8 or the modification thereby of the trusts
created by this Indenture, the Trustee shall be entitled to receive, and shall
be fully protected in relying upon, an Opinion of Counsel stating that the
execution of such supplemental indenture is authorized or permitted by this
Indenture.  The Trustee may, but shall
not be obligated to, enter into any such supplemental indenture which affects
the Trustee’s own rights, duties or immunities under this Indenture or
otherwise.


 


Section 8.5.            Effect
of Supplemental Indentures.  Upon the
execution of any supplemental indenture under this Article 8, this Indenture
shall be modified in accordance therewith, and such supplemental indenture
shall form a part of this Indenture for all purposes; and every Holder of Notes
theretofore or thereafter authenticated and delivered hereunder shall be bound
thereby.


 


Section 8.6.            Reference
in Notes to Supplemental Indentures. 
Notes authenticated and delivered after the execution of any
supplemental indenture pursuant to this Article 8 may, and shall if required by
the Trustee, bear a notation in form approved by the Trustee as to any matter
provided for in such supplemental indenture. 
If the Company shall so determine, new Notes so modified as to conform,
in the opinion of the Trustee and the Company, to any such supplemental
indenture may be prepared and executed by the Company and authenticated and
delivered by the Trustee in exchange for Outstanding Notes.


 


Section 8.7.            Notice.  After an amendment or supplement under this
Article 8 becomes effective, the Company shall notify the Trustee and the
Trustee shall promptly mail to the Holders affected thereby a notice briefly
describing the amendment or supplement. 
Any failure of the Company to mail such notice, or any defect therein,
shall not, however, in any way impair or affect the validity of any such
amendment or supplement.


 


ARTICLE 9


 


Covenants


 


Section 9.1.            Payment
of Principal, Premium, if any, and Interest.  The Company covenants and agrees for the
benefit of the Holders that it will duly and punctually pay on the dates and in
the manner provided in the Notes the principal of, premium, if any, and
interest on the Notes in accordance with the terms of the Notes and this
Indenture.  An installment of 


 


50

















 


principal or interest shall be
considered paid on the date it is due if the Paying Agent (if other than the
Company, the Guarantor or a Subsidiary thereof) holds as of 10:00 a.m., New
York City time, on that date money or Common Stock (if such installment is
payable in Common Stock) deposited by the Company and designated for and
sufficient to pay all principal of, premium, if any, and interest, if any, on
the Notes then due for such installment (as permitted by the terms of the
Notes).  The Company shall, to the
fullest extent permitted by law, pay interest on overdue principal (including
premium, if any) and overdue installments of interest (without regard to any
applicable grace period) at the rate borne by the Notes plus 1% per annum. All
such interest shall be payable upon demand.


 


Section 9.2.            Maintenance
of Office or Agency.  The Company
will maintain in each Place of Payment for Notes an office or agency where
Notes may be presented or surrendered for payment, where Notes may be
surrendered for registration of transfer or exchange and where notices and
demands to or upon the Company in respect of the Notes and this Indenture may
be served.  The Company will give prompt
written notice to the Trustee of the location, and any change in the location,
of such Place of Payment.  If at any time
the Company shall fail to maintain any such required office or agency or shall
fail to furnish the Trustee with the address thereof, such presentations,
surrenders, notices and demands may be made or served at the Corporate Trust
Office of the Trustee, and the Company hereby appoints the Trustee as its agent
to receive all such presentations, surrenders, notices and demands.


 


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


 


The Trustee shall initially serve as Paying Agent and Conversion Agent.


 


Section 9.3.            Money
for Notes to Be Held in Trust; Unclaimed Property.  If the Company shall at any time act as its
own Paying Agent with respect to the Notes, it will, on or before 12:00 noon,
Chicago, Illinois time on each due date of the principal of, premium, if any,
or interest on any of the Notes, segregate and hold in trust for the benefit of
the Persons entitled thereto a sum sufficient to pay the principal, premium, if
any, or interest so becoming due until such sums shall be paid to such Persons
or otherwise disposed of as herein provided and will promptly notify the
Trustee and Paying Agent, if applicable, in writing of its action or failure so
to act.


 


Whenever the Company shall have one or more Paying Agents for the
Notes, it will, prior to each due date of the principal of or any premium or
interest on any Notes deposit with the applicable Paying Agent a sum sufficient
to pay such amount, such sum to be held as provided by Section 317(b) of the
Trust Indenture Act, and (unless such Paying Agent is the Trustee) the Company
will promptly notify the Trustee of its action or failure so to act.


 


51

















 


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


 


(1)           hold all sums held by it for the
payment of the principal of, premium, if any, or interest on Notes in trust for
the benefit of the Persons entitled thereto until such sums shall be paid to
such Persons or otherwise disposed of as herein provided;


 


(2)           give the Trustee notice of any
Default by the Company (or any other obligor upon the Notes) in the making of
any payment of principal, premium, if any, or interest on the Notes; and


 


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


 


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


 


Any money or Common Stock deposited with the Trustee or any Paying
Agent, or then held by the Company, in trust for the payment of any principal,
premium or interest on any Note and remaining unclaimed for two years after
such principal, premium, if any, or interest has become due and payable shall
be paid or delivered to the Company on Company Request, or (if then held by the
Company) shall be discharged from such trust; and the Holder of such Note shall
thereafter, as an unsecured general creditor, look only to the Company and the
Guarantor for payment thereof, and all liability of the Trustee or such Paying
Agent with respect to such trust money, and all liability of the Company as
trustee thereof, shall thereupon cease; provided, however, that
the Trustee or such Paying Agent, before being required to make any such
repayment, may at the expense of the Company cause to be published once, in an
Authorized Newspaper, or cause to be mailed to such Holder, notice that such
money remains unclaimed and that, after a date specified therein, which shall
not be less than 30 days from the date of such publication or mailing, any
unclaimed balance of such money then remaining will be repaid to the Company.


 


Section 9.4.            Corporate
Existence.  Subject to Article 7, and
without limiting any of, and subject to, the Company’s obligations under
Article 10, each of the Company and the Guarantor will at all times do or cause
to be done all things necessary to preserve and keep in full force and effect
its respective corporate existence; provided that nothing in this
Section 9.4 shall prevent the abandonment or termination of any right or
franchise of the Company or the Guarantor if the Board of Directors of the Company
or of the Guarantor, as the case may be, shall determine that such abandonment
or termination is in the best interests of the Company or the Guarantor, as the
case may be, and does not materially adversely affect the ability of the 


 


52

















 


Company or the Guarantor, as
the case may be, to operate its business or to fulfill its obligations
hereunder.


 


Section 9.5.            Reports
by the Company.  The Company
covenants:


 


(a)           whether or not required to be filed
or otherwise provided by the rules and regulations of the Commission, so long
as any Notes are Outstanding, the Company will furnish to the Trustee, within
the time periods specified in the Commission’s rules and regulations:


 


(i)            all quarterly and annual reports
that would be required to be filed with the Commission on Forms 10-Q and
10-K, and all amendments thereto, if the Company were required to file
such reports; and


 


(ii)           all current reports that would be
required to be filed with the Commission on Form 8-K, and all amendments
thereto, if the Company were required to file such reports;


 


(b)           to file with the Trustee and the
Commission, in accordance with the rules and regulations prescribed from time
to time by the Commission, such additional information, documents and reports
with respect to compliance by the Company with the conditions and covenants
provided for in this Indenture, as may be required from time to time by such
rules and regulations; and


 


(c)           to transmit to all Holders of Notes
within 30 days after the filing thereof with the Trustee, in the manner and to
the extent provided in Section 313(c) of the Trust Indenture Act, such
summaries of any information, documents and reports required to be filed by the
Company pursuant to subsections (a) and (b) of this Section 9.5, as may be
required by rules and regulations prescribed from time to time by the
Commission.


 


Section 9.6.            Notice
of Default.  The Company shall file
with the Trustee written notice of the occurrence of any Event of Default
promptly, but in any event no later than five (5) Business Days of its becoming
aware of any such Event of Default.


 


Section 9.7.            Provision
of Financial Statements.  If the
Company is not required to file with the Commission periodic reports and other
information pursuant to Section 13(a), 13(c) or 15(d) of the Securities
Exchange Act, the Company shall furnish without cost to each Holder and file
with the Trustee (i) within 135 days after the end of each fiscal year, annual
reports containing the information required to be contained in Items 1, 2, 3,
5, 6, 7, 8 and 9 of Form 10-K promulgated under the Securities Exchange
Act or substantially the same information required to be contained in
comparable items of any successor form, (ii) within 60 days after the end of each
of the first three fiscal quarters of each fiscal year, quarterly reports
containing the information required to be contained in Form 10-Q
promulgated under the Securities Exchange Act or substantially the same
information required to be contained in any successor form and (iii) promptly
from the time after the occurrence of an event required to be therein reported,
such other reports containing information required to be contained in Form 8-K
promulgated under the Securities Exchange Act or substantially the same
information required to be contained in 


 


53

















 


any successor form.  The Company shall also make such reports
available to prospective purchasers of the Notes, securities analysts and
broker-dealers upon their request.


 


Section 9.8.            Compliance
Certificates.  The Company shall
deliver to the Trustee, within ninety (90) days after the end of each fiscal
year of the Company (beginning with the fiscal year ending December 31, 2006),
an Officers’ Certificate as to the signer’s knowledge of the Company’s
compliance with all conditions and covenants on its part contained in this
Indenture and stating whether or not the signer knows of any Default or Event
of Default.  If such signer knows of such
a Default or Event of Default, the Officers’ Certificate shall describe the
Default or Event of Default and the efforts to remedy the same.  For the purposes of this Section 9.7,
compliance shall be determined without regard to any grace period or
requirement of notice provided pursuant to the terms of this Indenture.


 


Section 9.9.            Further
Instruments and Acts.  Upon request
of the Trustee, each of the Company and the Guarantor will execute and deliver
such further instruments and do such further acts as may be reasonably
necessary or proper to carry out the purposes of this Indenture.


 


Section 9.10.          Payments
for Consents.  The Company shall not,
directly or indirectly, pay or cause to be paid any consideration, whether by
way of interest, fee or otherwise, to any Holder of any Notes for or as
inducement to any consent, waiver or amendment of any of the terms or
provisions of this Indenture or the Notes unless such consideration is offered
to be paid or is paid to all Holders of the Notes that consent, waive or agree to
amend in the time frame set forth in the solicitation documents relating to
such consent, waiver or agreement.


 


Section 9.11.          Changes
in Organization Documents.  The
Company shall not amend its certificate of incorporation, bylaws, or other
similar organizational document, other than any amendment that is not adverse
in any material respect to the rights of the Holders hereunder.


 


Section 9.12.          Affiliate
Transactions.


 


(a)           The Company will not, and will not
permit any of its Subsidiaries to, directly or indirectly, enter into any
material transaction including, without limitation, the purchase, sale or
exchange of property or the rendering of any service, with any of their
Affiliates unless (i) such transaction is on terms that are no less
favorable to the Company or the relevant Subsidiary than those that would have
been obtained in a comparable transaction by the Company or such Subsidiary on
an arms-length basis with an unrelated Person and (ii) the Company
delivers to the Trustee (A) with respect to any transaction or series of
related transactions involving aggregate consideration (or the fair market
value of the property the subject of such transaction is) in excess of $20.0
million, a resolution of the Board of Directors, approved prior to the consummation
thereof, set forth in an Officers’ Certificate certifying that such transaction
complies with clause (i) of this Section 9.12(a) and that such transaction has
been approved, prior to the consummation thereof, by a majority of the
disinterested members of the Board of Directors, and (B) with respect to any
transaction or series of related transactions involving aggregate consideration
(or the fair market value of the property the subject of such transaction is)
in excess of $50.0 million, an opinion as to the fairness to the Company or
such Subsidiary of such transaction from a financial point of view issued by an
accounting, 


 


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appraisal or investment banking firm of national
standing (and which opinions delivered to the Trustee).


 


(b)           The following items will not be
deemed to be subject to the provisions of this Section 9.12:


 


(i)            transactions between or among the
Company and/or its wholly owned Subsidiaries;


 


(ii)           transactions with a Person that is an
Affiliate of the Company solely because the Company owns, directly or through a
Subsidiary, capital stock in, or controls, such Person;


 


(iii)          payment of reasonable directors’ fees
to directors of the Company and other reasonable fees, compensation, benefits
and indemnities paid or entered into by the Company or its Subsidiaries to or
with the officers, directors, employees or consultants of the Company and any
Subsidiary of the Company; and


 


(iv)          any issuance of capital stock of the
Company to Affiliates of the Company.


 


ARTICLE 10


 


Redemption and Repurchase


 


Section 10.1.          Election
to Redeem; Notice to Trustee.  The
election of the Company to redeem any Notes pursuant to the optional redemption
provisions of Section 10.7 hereof, or the requirement that the Company offer to
redeem the Notes pursuant to the mandatory redemption provisions in Section
10.8, shall be evidenced by or pursuant to a Board Resolution or an Officers’
Certificate.  In the case of any optional
redemption of all or less than all the Notes, the Company shall, at least 60
days prior to the Redemption Date fixed by the Company (unless a shorter notice
shall be satisfactory to the Trustee), notify the Trustee of such Redemption
Date, of the principal amount of Notes to be redeemed, of the clause of this
Indenture pursuant to which the redemption shall occur, and the Redemption
Price.  In the case of any mandatory
redemption, the Company shall, promptly upon Company’s knowledge of its
obligation to make such mandatory redemption, notify the Trustee that the
Company is obligated to offer to redeem the Notes pursuant to Section 10.8 and
within the time periods prescribed by Section 10.8.


 


Section 10.2.          Selection
of Notes to Be Redeemed.  If less
than all the Notes are to be redeemed pursuant to Section 10.7, the Trustee, at
least 30 days but not more than 60 days prior to the Redemption Date, shall
select the Notes to be redeemed in such manner as the Trustee shall deem fair
and appropriate.  The Trustee shall make
the selection from Notes that are Outstanding and that have not previously been
called for redemption and may provide for the selection for redemption of
portions (equal to the minimum authorized denomination for Notes or any
integral multiple thereof) of the principal amount of Notes of a denomination
larger than the minimum authorized denomination for Notes.  The Trustee shall promptly notify the Company
in writing of the Notes selected by the Trustee for redemption and, in the case
of any Notes selected for partial redemption, the principal amount thereof to
be redeemed.


 


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


 


Section 10.3.          Notice
of Redemption.  If the Company elects
to redeem any Notes pursuant to the optional redemption provisions of Section
10.7 hereof, notice of redemption shall be given in the manner provided in this
Article 10 and Section 1.6 not less than 30 days nor more than
60 days prior to the Redemption Date to the Holders of the Notes to be
redeemed.  If the Company is required to
offer to redeem the Notes pursuant to the mandatory redemption provisions of
Section 10.8, notice of redemption shall be given in the manner provided in
this Article 10 and Section 1.6 not less than 45 days nor more than 60
days prior to the Redemption Date to the Holders of the Notes to be redeemed.


 


All notices of redemption shall be prepared by the Company and shall
identify the Notes to be redeemed and shall state:


 


(1)           the Redemption Date;


 


(2)           the Redemption Price and accrued
interest to, but excluding, the Redemption Date;


 


(3)           if fewer than all the Outstanding
Notes are to be redeemed, the identification (and, in the case of partial
redemption, the principal amounts) of the particular Note or Notes to be
redeemed;


 


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


 


(5)           the Place or Places of Payment where
such Notes maturing after the Redemption Date may be surrendered for payment
for the Redemption Price and accrued interest to, but excluding, the Redemption
Date;


 


(6)           that Notes called for redemption must
be surrendered to the Paying Agent to collect the Redemption Price;


 


(7)           that, on the Redemption Date, the
Redemption Price and accrued interest to, but excluding, the Redemption Date
will become due and payable upon each such Note, or the portion thereof, to be
redeemed and, if applicable, that interest thereon will cease to accrue on and
after said date;


 


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


 


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


 


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(10)         the current Conversion Rate;


 


(11)         the date on which the right to convert
such Notes or portions thereof into Common Stock will expire (which date shall
be the close of business on the third Business Day prior to the Redemption
Date);


 


(12)         whether the Company has elected to
satisfy all or a portion of its Conversion Obligation with cash in lieu of
delivery of shares of Common Stock with respect to any Notes (or portions
thereof) to be redeemed;


 


(13)         if the Company has determined to
satisfy all or any portion of the Conversion Obligation in cash, the dollar
amount of the Conversion Obligation to be satisfied in cash (which must be
expressed either as 100% of the Conversion Obligation or as a fixed dollar
amount); and


 


(14)         the name and address of each Paying
Agent and Conversion Agent.


 


Notice of redemption of Notes to be redeemed shall be given by the
Company or, at the Company’s request, by the Trustee in the name and at the
expense of the Company.  In the event
that the Company elects to deliver such notice to the Holders (rather than
through the Trustee), the Company shall concurrently therewith deliver a copy
of such notice to the Trustee.


 


Section 10.4.          Deposit
of Redemption Price.  On or prior to
any Redemption Date (and in any case no later than 10:00 a.m., New York City
time, on such Redemption Date), the Company shall deposit with the Paying Agent
(if other than the Company, the Guarantor or a Subsidiary thereof) (or, if the
Company is acting as its own Paying Agent, segregate and hold in trust as
provided in Section 9.3) an amount of cash in immediately available funds
sufficient to pay on the Redemption Date the Redemption Price of, and interest
accrued to but not including the Redemption Date on, all Notes or portions
thereof which are to be redeemed on that date (other than those theretofore
surrendered for conversion into Common Stock). 
Alternatively, the Company may, at its election, pay any Redemption
Price owed pursuant to Article 10 by delivering not less than three
(3) Business Days prior to such Redemption Date (the “Delivery Date”)
(i) that number of shares of Common Stock equal to the aggregate
Redemption Price owed to any Holder divided by the Market Value of the Common
Stock as of the Business Day prior to the Delivery Date and rounding down to
the nearest whole number plus (ii) cash in lieu of fractional shares; provided,
however, that for any redemption pursuant to Section 10.7, all or a
portion of the Redemption Price may be paid in Common Stock only if the Common
Stock has traded at no less than 125% of the Conversion Price for the 60
consecutive trading days prior to the Redemption Date.  Prior to the occurrence of an Event of
Default (and upon the occurrence and continuance of an Event of Default, at the
direction of the Holders of at least a majority of the principal amount of the
Outstanding Notes), the Paying Agent shall promptly return to the Company any
money deposited with the Paying Agent by the Company in excess of the amounts
necessary to pay the Redemption Price of, and accrued interest on, all Notes to
be redeemed.  If any Note (or portion
thereof) called for redemption is converted into Common Stock prior to such
Redemption Date, any money deposited with the Paying Agent or so set aside,
segregated and held in trust for the redemption of such Note shall be paid to
the Company upon its written request, or, if then held by the Company, shall be
discharged from such trust.


 


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Section 10.5.          Notes
Payable on Redemption Date.  Notice
of redemption having been given as aforesaid, the Notes so to be redeemed
shall, on the Redemption Date, unless converted into Common Stock pursuant to
the terms hereof, become due and payable at the Redemption Price therein
specified, and from and after such date (unless the Company shall default in
the payment of the Redemption Price and accrued interest) such Notes shall
cease to bear interest, such Notes (or portions thereof) shall cease to be
convertible into Common Stock and shall cease to be entitled to any benefit or
security under this Indenture, and the Holders thereof shall have no right in
respect of such Notes (or portions thereof) except the right to receive the
Redemption Price thereof pursuant to this Indenture.  Upon surrender of any such Note for
redemption in accordance with said notice, such Note shall be paid by the
Company at the Redemption Price, together with accrued interest to but not
including the Redemption Date; provided, however, that
installments of interest whose Stated Maturity is on or prior to the Redemption
Date shall be payable to the Holders of such Notes, or one or more Predecessor
Securities, registered as such at the close of business on the relevant Regular
Record Dates according to their terms and the provisions of Section 3.7.


 


If any Note called for redemption shall not be so paid upon surrender
thereof for redemption, the principal and any premium shall, until paid, bear
interest from the Redemption Date at the rate prescribed therefor in the Note,
and such Note shall remain convertible into Common Stock until the principal
and interest shall have been paid or duly provided for.


 


Section 10.6.          Notes
Redeemed in Part.  Upon surrender of
a Note that is redeemed in part at any Place of Payment therefor (with, if the
Company so requires, due endorsement by, or a written instrument of transfer in
form satisfactory to the Company duly executed by, the Holder thereof or its
attorney duly authorized in writing), the Company shall execute and the Trustee
shall authenticate and deliver to the Holder of that Note, without service charge,
a new Note or Notes, the same form and the same Stated Maturity in any
authorized denomination equal in aggregate principal amount to the unredeemed
portion of the principal of the Note surrendered.  If any Note selected for partial redemption
is submitted for conversion in part after such selection, the portion of such
Note submitted for conversion shall be deemed (so far as may be possible) to be
from the portion selected for redemption. 
The Notes (or portions thereof) so selected shall be deemed duly
selected for redemption for all purposes hereof, notwithstanding that any such
Note is submitted for conversion in part before the mailing of the Redemption
Notice.


 


Upon any redemption of less than all of the outstanding Notes, the
Company and the Trustee may (but need not), solely for purposes of determining
the pro rata allocation among such Notes as are unconverted and outstanding at
the time of redemption, treat as outstanding any Notes surrendered for
conversion during the period of 15 days preceding the mailing of a Redemption
Notice and may (but need not) treat as outstanding any Note authenticated and
delivered during such period in exchange for the unconverted portion of any
Note converted in part during such period.


 


Section 10.7.          Optional
Redemption.  At any time on or after
February 1, 2011 the Company may redeem all or a part of the Notes upon
not less than 30 nor more than 60 days’ notice, at a Redemption Price of 100%
of the principal amount of such Notes plus accrued and unpaid interest thereon
to but not including the applicable Redemption Date.  Any redemption 


 


58

















 


pursuant to this Section 10.7
shall be made pursuant to the provisions of Section 10.1 through Section 10.6
hereof.


 


Section 10.8.          Mandatory
Redemption.  Upon any Change in
Ownership or Fundamental Change, the Company shall offer to redeem all of the
Notes that are Outstanding at a Redemption Price of 100% of the principal
amount thereof plus accrued but unpaid interest thereon to but not including
the applicable Redemption Date.  Any
offer of redemption pursuant to this Section 10.8 shall be made in accordance
with Section 10.3.  Within 20 days
of receiving such notice of redemption, each Holder must deliver to the Company
and the Trustee the form attached to the Notes labeled OPTION OF HOLDER TO
ELECT REDEMPTION.  Such notice shall
indicate whether the Company elects to pay such Redemption Price in cash, in
shares of Common Stock or a combination thereof, specifying the percentage or
amount of each and, if the Company elects to pay any portion of such Redemption
Price in shares of Common Stock, the Market Price of the Common Stock.  Such notice shall also indicate that Notes as
to which an OPTION OF HOLDER TO ELECT REDEMPTION form has been given by the
Holder may be converted only if the election has been withdrawn by the Holder
in accordance with the terms of this Indenture and such Notes are otherwise
convertible in accordance with Section 12.1. 
Any redemption pursuant to this Section 10.8 shall be made in compliance
with the provisions of Section 10.1, Section 10.3, Section 10.4, Section 10.5
and Section 10.6 hereof.


 


Notwithstanding anything herein to the contrary, any Holder delivering
to the Trustee (or other Paying Agent appointed by the Company) an OPTION OF
HOLDER TO ELECT REDEMPTION shall have the right to withdraw such election at
any time prior to the close of business on the third Business Day immediately
preceding the Redemption Date (or any such later time as may be required by
applicable law) by delivery of a written notice of withdrawal to the Trustee
(or other Paying Agent appointed by the Company) and the Company specifying:


 


(i)            the certificate number, if any, of
the Notes in respect of which such notice of withdrawal is being submitted, or
the appropriate Depositary information if the Notes in respect of which such
notice of withdrawal is being submitted is represented by a Note in global
form,


 


(ii)           the principal amount of the Notes
with respect to which such notice of withdrawal is being submitted, and


 


(iii)          the principal amount, if any, of such
Notes which remain subject to the original OPTION OF HOLDER TO ELECT REDEMPTION
and which has been or will be delivered for redemption by the Company.


 


Section 10.9.          Repurchase of Notes by the Company
at Option of Holders on Specified Dates.


 


(a)           On each of the fifth anniversary of
date of issuance and the tenth anniversary of date of issuance (each, a “Company
Repurchase Date”), each Holder shall have the right, at such Holder’s
option, to require the Company to repurchase all of such Holder’s Notes.  The Company shall repurchase such Notes at a
price (the “Company Repurchase Price”) equal to 100% of the principal
amount of the Notes to be repurchased 


 


59

















 


plus accrued and unpaid interest, if any, to (but
excluding) the Company Repurchase Date; provided that if such Company
Repurchase Date falls after a Regular Record Date, but on or prior to the
relevant Interest Payment Date, then the interest payable on such Interest
Payment Date shall be paid to the Holders of record of the Notes or one or more
Predecessor Securities on the applicable Regular Record Date instead of to the
Holders surrendering the Notes for repurchase.


 


(b)           No sooner than the 60th
Trading Day and no later than the 25th Trading Day prior to each
Company Repurchase Date, the Company, or at its written request the Trustee in
the name of and at the expense of the Company (which request must be received
by the Trustee at least 10 Business Days prior to the date the Trustee is
requested to give notice as described below, unless the Trustee shall agree to
a shorter period), shall mail or cause to be mailed, by first class mail, to
the Paying Agent and all holders of record on such date a notice (the “Company
Repurchase Notice”) to each Holder of Notes at its last address as the same
appears on the Register and to any beneficial owner of Notes as required by
applicable law; provided that if the Company shall give such notice, it
shall also give written notice to the Trustee (and the Paying Agent if the
Trustee is not the Paying Agent) at such time as it is mailed to Holders.  Such notice, if mailed in the manner herein
provided, shall be conclusively presumed to have been duly given, whether or
not the Holder receives such notice. 
Each Company Repurchase Notice shall state:


 


(i)            the Company Repurchase Price,
excluding accrued and unpaid interest, the Conversion Price at the time of such
notice (and any applicable adjustments to the Conversion Price) and, to the
extent known at the time of such notice, the amount of interest that will be
payable with respect to the Notes on the Company Repurchase Date;


 


(ii)           whether the Company elects to pay the
Company Repurchase Price in cash, in shares of Common Stock or a combination
thereof, specifying the percentage or amounts of each;


 


(iii)          the Company Repurchase Date;


 


(iv)          the last date on which a Holder may
exercise the repurchase right;


 


(v)           the name and address of the Paying Agent
and the Conversion Agent;


 


(vi)          that Notes as to which a Company
Repurchase Election has been given by the Holder may be converted only if the
election has been withdrawn by the Holder in accordance with the terms of this
Indenture and the Notes are otherwise convertible in accordance with the terms
of this Indenture;


 


(vii)         that the Holder shall have the right to
withdraw any Notes surrendered prior to the close of business on the Business
Day immediately preceding the Company Repurchase Date (or any such later time
as may be required by applicable law);


 


60

















 


(viii)        a description of the procedure which a
Holder must follow to exercise such repurchase right or to withdraw any
surrendered Notes;


 


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


 


(x)            briefly, the conversion rights of
the Notes.


 


No failure of the Company to give the foregoing notices and no defect
therein shall affect the validity of the proceedings for the repurchase of the
Notes pursuant to this Section 10.9.


 


(c)           Notes shall be repurchased pursuant
to this Section 10.9 at the option of the Holder upon:


 


(i)            delivery to the Trustee (or other Paying
Agent appointed by the Company) by a Holder of a duly completed notice (a “Company
Repurchase Election”) in the form set forth on the reverse of the Note at
any time from the opening of business on the 20th Trading Day
preceding the Company Repurchase Date until the close of business on the
Trading Day immediately preceding the Company Repurchase Date, subject to
extension to comply with applicable law, stating:


 


(ii)           if certificated, the certificate
numbers of the Notes which the Holder shall deliver to be repurchased;


 


(iii)          that such Notes shall be repurchased
as of the Company Repurchase Date pursuant to the terms and conditions
specified in the Notes and in this Indenture; and


 


(iv)          if the Company Repurchase Notice
stated an intention to pay the Company Repurchase Price, in whole or in part,
in shares of Common Stock but such portion of the Company Repurchase Price is
ultimately paid to such Holder entirely in cash because one or more of the
conditions to payment of the Company Repurchase Price in shares of Common Stock
was not satisfied prior to the close of business on the Trading Day prior to
the relevant Company Repurchase Date, whether such Holder elects (i) to
withdraw the Company Repurchase Election as to the Notes to which such election
relates (stating the principal amount and certificate numbers, if any, of the
Notes as to which such withdrawal relates) or (ii) to receive cash in
respect of the entire Company Repurchase Price for all Notes (or portions
thereof) to which such election relates; and


 


(v)           delivery or book-entry transfer
of the Notes to the Trustee (or other Paying Agent appointed by the Company),
simultaneously with or at any time after delivery of the Company Repurchase
Election (together with all necessary endorsements) at the Corporate Trust
Office of the Trustee (or other Paying Agent appointed by the Company), such
delivery or transfer being a condition to receipt by the Holder of the Company
Repurchase Price therefor; provided that such Company Repurchase Price
shall be so paid pursuant to this Section 10.9 only if the Notes so delivered
or transferred to the Trustee (or other Paying Agent appointed by the Company)
shall conform in all respects to the description thereof in the related Company
Repurchase Election.  All questions as 


 


61

















 


to the validity, eligibility (including time of
receipt) and acceptance of any Note for repurchase shall be determined by the
Company, whose determination shall be final and binding absent manifest error.


 


If a Holder fails to indicate such Holder’s choice with respect to the
election set forth in Section 10.9, such Holder shall be deemed to have
withdrawn the Company Repurchase Election in the circumstances set forth in
Section 10.9(c)(i).


 


Section 10.10.        Conversion
Arrangement on Call for Redemption. 
In connection with any redemption or repurchase of Notes pursuant to
Section 10.7, Section 10.8 or Section 10.9, the Company may arrange for the
purchase and conversion of any Notes by an agreement with one or more
investment banks or other purchasers to purchase such Notes by paying to the
Trustee in trust for the Holders, on or before the Redemption Date or Company
Repurchase Date, an amount not less than the Redemption Price or the Company
Repurchase Price of such Notes. 
Notwithstanding anything to the contrary contained in this Article 10,
the obligation of the Company to pay the Redemption Price or the Company
Repurchase Price of such Notes shall be deemed to be satisfied and discharged
to the extent such amount is so paid by such purchasers.  If such an agreement is entered into, a copy
of which will be filed with the Trustee prior to the Redemption Date or Company
Repurchase Date, any Note not duly surrendered for conversion by the Holders thereof
may, at the option of the Company, be deemed, to the fullest extent permitted
by law, acquired by such purchasers from such Holders and (notwithstanding
anything to the contrary contained in Article 12) surrendered by such
purchasers for conversion, all as of immediately prior to the close of business
on the Redemption Date or Company Repurchase Date (and the right to convert any
such Notes shall be extended through such time), subject to payment of the
above amount as aforesaid.  At the
direction of the Company, the Trustee shall hold and dispose of any such amount
paid to it in the same manner as it would monies deposited with it by the
Company for the redemption of Notes. 
Without the Trustee’s prior written consent, no arrangement between the
Company and such purchasers for the purchase and conversion of any Notes shall
increase or otherwise affect any of the powers, duties, responsibilities or
obligations of the Trustee as set forth in this Indenture.


 


Section 10.11.        Company’s Right to Elect Manner of
Payment of Repurchase Price.


 


(a)           The Notes to be repurchased by the
Company on any Company Repurchase Date pursuant to Section 10.9, may be paid
for, in whole or in part, at the election of the Company, in cash or shares of
Common Stock, or in any combination of cash and shares of Common Stock, subject
to the conditions set forth in Section 10.12(e).  The Company shall designate in its Company
Repurchase Notice whether the Company will purchase the Notes for cash or
shares of Common Stock, or, if a combination thereof, the percentage of the
Company Repurchase Price that it will pay in cash and the percentage that it
will pay in shares of Common Stock; provided that, to the extent the
Company pays cash for accrued and unpaid interest or for fractional interests
in shares of Common Stock, such cash amounts will be based upon the Market
Price with respect to the applicable Company Repurchase Date.  For purposes of determining the amount of any
fractional interests, all Notes subject to repurchase held by a Holder shall be
considered together (no matter how many separate certificates are to be
presented).


 


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(b)           Each Holder whose Notes are
repurchased pursuant to Section 10.9 shall receive the same percentage of cash
or shares of Common Stock in payment of the Company Repurchase Price for such
Notes as any other Holder whose Notes are so repurchased, except (i) as
provided in Section 10.11(a) with regard to the payment of cash in lieu of
fractional shares of Common Stock and (ii) in the event that the Company
is unable to purchase the Notes of a Holder or Holders for shares of Common
Stock because any necessary qualifications or registrations of the shares of
Common Stock under applicable state securities laws cannot be obtained, or
because the conditions to purchasing such Notes for shares of Common Stock set
forth in Section 10.11(e) have not been satisfied, the Company may purchase the
Notes of such Holder or Holders for cash. 
The Company may not change its election with respect to the
consideration (or components or percentages of components thereof) to be paid
once the Company has given its Company Repurchase Notice to Holders except as
provided in the preceding sentence or pursuant to Section 10.11(e) in the event
of a failure to satisfy, prior to the close of business on the Trading Day
immediately preceding the Company Repurchase Date, any condition to the payment
of the Company Repurchase Price in whole or in part in shares of Common Stock.


 


(c)           At least three Business Days before
the date of any Company Repurchase Notice, the Company shall deliver an
Officers’ Certificate to the Trustee specifying:


 


(i)            the manner of payment selected by
the Company;


 


(ii)           the information required to be
included in the Company Repurchase Notice;


 


(iii)          if the Company elects to pay the
Company Repurchase Price, or a specified percentage thereof, in shares of
Common Stock, that the conditions to such manner of payment set forth in
Section 10.11(e) have been or will be complied with; and


 


(iv)          whether the Company desires the
Trustee to give the Company Repurchase Notice required.


 


(d)           If the Company elects to pay the
Company Repurchase Price, or any percentage thereof, with respect to a Company
Repurchase Date in shares of Common Stock, the number of shares of Common Stock
to be delivered with respect to each $1,000 principal amount of Notes shall be
equal to the quotient obtained by dividing (i) the dollar amount of the
Company Repurchase Price to be paid in shares of Common Stock by (ii) the
Market Price with respect to such Company Repurchase Date; provided that
no fractional shares will be delivered.


 


(e)           The Company’s right to elect to pay
some or all of the Company Repurchase Price with respect to a Company
Repurchase Date by delivering shares of Common Stock shall be conditioned upon:


 


(i)            the Company giving timely notice of
its election;


 


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(ii)           the approval for listing of such
shares of Common Stock on each national or regional securities exchange on
which the Common Stock is then listed, subject to official notice of issuance,
or approval of trading of such shares of Common Stock on the Nasdaq National
Market or other similar automated quotation system on which the Common Stock is
then traded;


 


(iii)          information necessary to calculate the
Market Price being published in a daily newspaper of national circulation or
being otherwise readily publicly available;


 


(iv)          the registration of such shares of
Common Stock under the Securities Act and the Securities Exchange Act, in each
case if required;


 


(v)           any necessary qualification or
registration under applicable state securities laws or the availability of an
exemption from such qualification and registration;


 


(vi)          obtaining any required stockholder
approvals; and


 


(vii)         the receipt by the Trustee of an
Officers’ Certificate stating that (A) the terms of the issuance of the
shares of Common Stock are in conformity with this Indenture and (B) the
shares of Common Stock to be issued by the Company in payment of the Company
Repurchase Price in respect of the Notes have been duly authorized and, when
issued and delivered pursuant to the terms of this Indenture in payment of the
Company Repurchase Price, will be validly issued, fully paid and nonassessable
under the Company’s Certificate of Incorporation and By-laws, in each
case as then in effect, and the Delaware General Corporation Law (or other
applicable corporate law), and stating that each of the conditions in clauses
(i) through (vi) above have been satisfied. 
Such Officers’ Certificate shall also set forth the number of shares of
Common Stock to be issued for each $1,000 principal amount of Notes and the
Last Reported Sale Price of the Common Stock on each Trading Day during the
period during which the Market Price with respect to such Company Repurchase
Date is to be calculated.


 


If the foregoing conditions are not satisfied with respect to a Holder
or Holders prior to the close of business on the Trading Day immediately preceding
the Company Repurchase Date, the Company shall pay the entire Company
Repurchase Price of the Notes of such Holder or Holders in cash.


 


(f)            All shares of Common Stock delivered
upon repurchase of the Notes shall be newly issued shares or treasury shares,
shall be duly authorized, validly issued, fully paid and nonassessable, and
shall be free of any lien or adverse claim.


 


(g)           If a Holder is paid some or all of
the Company Repurchase Price with respect to such Holder’s Notes in shares of
Common Stock, the Company shall pay any documentary, stamp or similar issue or
transfer tax due on such issue of Common Stock; provided that the Holder
shall pay any such tax which is due because the Holder requests the Common
Stock to be issued in a name other than that of the Holder.  The Paying Agent may refuse to deliver the
certificates representing the shares of Common Stock 


 


64

















 


being issued in a name other than the Holder’s name
until the Paying Agent receives a sum sufficient to pay any tax which will be
due because the shares of Common Stock are to be issued in a name other than
the Holder’s name.  Nothing herein shall
preclude any income tax withholding required by law or regulations.


 


(h)           The Company may irrevocably elect, in
its sole discretion and without the consent of Holders of the Notes, by notice
to the Trustee and the Holders of the Notes, to satisfy in cash 100% of the
principal amount of the Notes that are the subject of a Company Repurchase
Notice received by the Paying Agent and the Company after the date of such
election.


 


Section 10.12.        Conditions and Procedures for
Repurchase at Option of Holders.


 


(a)           The Company may repurchase from the
Holder thereof, pursuant to Section 10.9, a portion of a Note, if the principal
amount of such portion is $1,000 or a whole multiple of $1,000.  Provisions of this Indenture that apply to
the repurchase of all of a Note also apply to the repurchase of such portion of
such Note.  Upon presentation of any Note
repurchased in part only, the Company shall execute and the Trustee shall
authenticate and make available for delivery to the Holder thereof, at the
expense of the Company, a new Note or Notes, of any authorized denomination, in
aggregate principal amount equal to the portion of the Notes presented that is
not repurchased.


 


(b)           On or prior to a Company Repurchase
Date, the Company will deposit with the Trustee or with one or more Paying
Agents an amount of cash and/or shares of Common Stock, as applicable,
sufficient to repurchase on the Company Repurchase Date all of the Notes (or
portions thereof) to be repurchased on such date at the Company Repurchase
Price; provided that if such deposit is made on the Company Repurchase
Date, it must be received by the Trustee or Paying Agent, as the case may be,
by 10:00 a.m., New York City time, on such date.


 


If the Trustee or other Paying Agent appointed by the Company holds
cash and/or shares of Common Stock sufficient to pay the aggregate Company
Repurchase Price of all of the Notes (or portions thereof) that are to be
repurchased as of the Company Repurchase Date, then on or after the Company
Repurchase Date, (i) such Notes to be repurchased will cease to be
outstanding, (ii) interest on such Notes to be repurchased will cease to
accrue, whether or not book-entry transfer of the Notes has been made or
the Notes have been delivered to the Trustee or Paying Agent, and
(iii) all other rights of the Holders of such Notes to be repurchased will
terminate other than the right to receive the Company Repurchase Price upon
transfer or delivery of the Notes.


 


(c)           Upon receipt by the Trustee (or other
Paying Agent appointed by the Company) of a Company Repurchase Election, the
Holder of the Note (or a portion thereof) in respect of which such Company
Repurchase Election was given shall (unless such notice is validly withdrawn)
thereafter be entitled to receive solely the Company Repurchase Price with
respect to such Note (or a portion thereof). 
Such Company Repurchase Price shall be paid to such Holder, subject to
receipt of funds and/or Notes by the Trustee (or other Paying Agent appointed
by the Company), promptly (but in no 


 


65

















 


event more than five Business Days) following the
later of (x) the Company Repurchase Date with respect to such Note (provided
that the Holder has satisfied its obligations in Section 10.9(c)) and
(y) the time of book-entry transfer or delivery of such Note to the
Trustee (or other Paying Agent appointed by the Company) by the Holder thereof
in the manner required by Section 10.9(c). 
Notes in respect of which a Company Repurchase Election has been given
by the Holder thereof may not be converted pursuant to Article 12 hereof on or
after the date of the delivery of such Company Repurchase Election unless such
election has first been validly withdrawn pursuant to Section 10.12(d) below.


 


(d)           Notwithstanding anything herein to
the contrary, any Holder delivering to the Trustee (or other Paying Agent
appointed by the Company) a Company Repurchase Election shall have the right to
withdraw such election at any time prior to the close of business on the third
Trading Day immediately preceding the Company Repurchase Date (or any such
later time as may be required by applicable law) by delivery of a written
notice of withdrawal to the Trustee (or other Paying Agent appointed by the
Company) specifying:


 


(i)            the certificate number, if any, of
the Notes in respect of which such notice of withdrawal is being submitted, or
the appropriate Depositary information if the Notes in respect of which such
notice of withdrawal is being submitted is represented by a Note in global
form,


 


(ii)           the principal amount of the Notes
with respect to which such notice of withdrawal is being submitted, and


 


(iii)          the principal amount, if any, of such
Notes which remain subject to the original Company Repurchase Election and
which has been or will be delivered for redemption or repurchase by the
Company.


 


The Trustee (or other Paying Agent appointed by the Company) shall
promptly notify the Company of the receipt by it of any Company Repurchase
Election or written notice of withdrawal thereof.


 


(e)           The Company will comply with the
provisions of Rules 13e-4 and 14e-1 and any other tender offer
rules under the Securities Exchange Act to the extent then applicable in
connection with the repurchase rights of the Holders of Notes in the event of a
Change in Ownership, a Fundamental Change or on any Company Repurchase
Date.  If then required by applicable law,
the Company will file a Schedule TO or any other schedule required to be
filed with the Commission in connection with such repurchase.


 


(f)            There shall be no repurchase of any
Notes pursuant to Section 10.9 if there has occurred at any time prior to, and
is continuing on, the Company Repurchase Date an Event of Default (other than
an Event of Default that is cured by the payment of the Company Repurchase
Price with respect to such Notes).  The
Paying Agent will promptly return to the respective Holders thereof any Notes
(x) with respect to which a Company Repurchase Election has been withdrawn
in compliance with this Indenture or (y) held by it during the continuance
of an Event of Default (other than a default in the payment of 


 


66

















 


the Company Repurchase Price with respect to such
Notes) in which case, upon such return, the Company Repurchase Election with
respect thereto shall be deemed to have been withdrawn.


 


(g)           Prior to the occurrence of an Event
of Default (and then at the direction of the Holders of at least a majority of
the principal amount of the Outstanding Notes), the Trustee (or other Paying
Agent appointed by the Company) shall return to the Company any cash that
remains unclaimed for the payment of the Company Repurchase Price and to the
extent that the aggregate amount of cash deposited by the Company pursuant to
Section 10.12(b) exceeds the aggregate Company Repurchase Price of the Notes or
portions thereof which the Company is obligated to purchase as of the Company
Repurchase Date, then, unless otherwise agreed in writing with the Company,
within five Business Days following the Company Repurchase Date, the Trustee
shall return any such excess to the Company.


 


ARTICLE 11


 


Note Guarantee


 


Section 11.1.          Guarantee.


 


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


 


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


 


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


 


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


 


(b)           The Guarantor hereby agrees that its
obligations hereunder are unconditional, irrespective of the validity,
regularity or enforceability of the Notes or this Indenture, the absence of any
action to enforce the same, any waiver or consent by any Holder of the Notes
with respect to any provisions hereof or thereof, the recovery of any 


 


67

















 


judgment against the Company, any action to enforce
the same or any other circumstance which might otherwise constitute a legal or
equitable discharge or defense of a guarantor or surety.  The Guarantor hereby waives the benefits of
diligence, presentment, demand for payment and filing of claims with a court in
the event of insolvency or bankruptcy of the Company and any right to require a
proceeding first against the Company or any other Person, protest, notice and
all demands whatsoever, and covenants that this Note Guarantee will not be
discharged except by complete performance of the obligations contained in the
Notes and this Indenture.


 


(c)           If any Holder or the Trustee is required
by any court or otherwise to return to the Company, the Guarantor or any
Custodian acting in relation to either the Company or the Guarantor, any amount
paid by either to the Trustee or such Holder, or any such amount paid is
rescinded or reduced in amount, this Note Guarantee, to the extent theretofore
discharged, will continue to be effective or be reinstated, as the case may be,
and be in full force and effect all as though such amount had not been paid.


 


(d)           The Guarantor agrees that it will not
be entitled to any right of subrogation in relation to the Holders in respect
of any obligations guaranteed hereby until payment and performance in full of
all obligations guaranteed hereby.  The
Guarantor further agrees that, as between the Guarantor, on the one hand, and
the Holders and the Trustee, on the other hand, (1) the maturity of the
obligations guaranteed hereby may be accelerated as provided in Article 5
hereof for the purposes of this Note Guarantee, notwithstanding any stay,
injunction or other prohibition preventing such acceleration in respect of the
obligations guaranteed hereby, and (2) in the event of any declaration of
acceleration of such obligations as provided in Article 5 hereof, such
obligations (whether or not due and payable) will forthwith become due and
payable by the Guarantor for the purpose of this Note Guarantee.


 


(e)           The Guarantor hereby agrees to pay
any and all costs and expenses incurred by the Trustee or the Holders in
enforcing their respective rights under the Note Guarantee.


 


(f)            The Note Guarantee shall remain in
full force and effect and continue to be effective should any petition be filed
by or against the Company for liquidation or reorganization, should the Company
become insolvent or make an assignment for the benefit of creditors or should a
Custodian be appointed for all or any significant part of the Company’s assets.


 


Section 11.2.          Limitation
on Guarantor Liability.  The
Guarantor and, by its acceptance of Notes, each Holder hereby confirms that it
is the intention of all such parties that the Note Guarantee of the Guarantor
not constitute a fraudulent transfer or conveyance for purposes of Bankruptcy
Law, the Uniform Fraudulent Conveyance Act, the Uniform Fraudulent Transfer Act
or any similar federal or state law to the extent applicable to the Note
Guarantee.  To effectuate the foregoing
intention, the Trustee, the Holders and the Guarantor hereby irrevocably agree
that the obligations of the Guarantor under its Note Guarantee and this Article
11 shall be limited to the greater of (i) the amount of any value received by
the Guarantor and (ii) the maximum amount as will, after giving effect to such
maximum amount and all other contingent and fixed 


 


68

















 


liabilities of the Guarantor that are relevant under such laws, result
in the obligations of the Guarantor under its Note Guarantee not constituting a
fraudulent transfer or conveyance.


 


Section 11.3.          Execution
and Delivery of a Note Guarantee.  To
evidence the Note Guarantee, the Guarantor hereby agrees that a notation of
such Note Guarantee substantially in the form attached as Exhibit B
hereto will be endorsed by an Officer of the Guarantor on each Note
authenticated and delivered by the Trustee and that this Indenture will be
executed on behalf of the Guarantor by one of its Officers.


 


The Guarantor hereby agrees that the Note Guarantee will remain in full
force and effect notwithstanding any failure to endorse on each Note a notation
of such Note Guarantee.


 


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


 


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


 


Section 11.4.          Guarantor
May Consolidate, etc., on Certain Terms.  Except as otherwise provided in this Section
11.4, the Guarantor may not sell, convey, transfer or otherwise dispose of all
or substantially all of its property or assets to, or consolidate with or merge
with or into another Person, other than the Company, unless:


 


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


 


(2)           either:


 


(a)           the
Guarantor is the surviving Person; or


 


(b)           the
Person acquiring the property or assets in any such sale, conveyance, transfer
or disposition or the Person formed by or surviving any such consolidation or
merger unconditionally assumes all the obligations of the Guarantor pursuant to
a supplemental indenture executed and delivered to the Trustee, in form
reasonably satisfactory to the Trustee, under the Notes, this Indenture and the
Note Guarantee on the terms set forth herein or therein.


 


In case of any such consolidation, merger, sale, conveyance, transfer
or disposition and upon the assumption by the successor Person, by supplemental
indenture, executed and delivered to the Trustee and satisfactory in form to
the Trustee, of the Note Guarantee endorsed upon the Notes and the due and
punctual performance of all of the covenants and conditions of this Indenture
to be performed by the Guarantor, such successor Person will succeed to and be
substituted for the Guarantor with the same effect as if it had been named
herein as the Guarantor; provided, however, that no such sale,
conveyance, transfer or disposition shall have the effect of releasing the Person
named as the “Guarantor” in the first paragraph of this Indenture or any
successor Person which shall theretofore have become such in the manner 


 


69

















 


prescribed in this Article 11 from its liability as obligor on the Note
Guarantee.  Such successor Person
thereupon may cause to be signed any or all of the Note Guarantees to be
endorsed upon all of the Notes issuable hereunder which theretofore shall not
have been signed by the Company and delivered to the Trustee.  All the Note Guarantees so issued will in all
respects have the same legal rank and benefit under this Indenture as the Note
Guarantees theretofore and thereafter issued in accordance with the terms of this
Indenture as though all of such Note Guarantees had been issued at the date of
the execution hereof.


 


Nothing contained in this Indenture or in any of the Notes will prevent
any consolidation or merger of a Guarantor with or into the Company, or will
prevent any sale, conveyance, transfer or disposition of the property of the
Guarantor as an entirety or substantially as an entirety to the Company.


 


ARTICLE 12


 


Conversion of Notes


 


Section 12.1.          Right to
Convert.


 


(a)           Subject to and upon compliance with
the provisions of this Indenture, the Holder of any Note shall have the right,
at such Holder’s option, to convert the principal amount of such Note, or any
portion of such principal amount which is an integral multiple of $1,000, into
fully paid and non-assessable shares of Common Stock (as such shares
shall then be constituted) at the Conversion Rate in effect at such time at any
time prior to the earlier of (1) the close of business on the second Business
Day prior to the Redemption Date and (2) the close of business on the second
Business Day immediately preceding Maturity, by surrender of the Note to be so
converted in whole or in part, together with any required funds, under the
circumstances described in this Section 12.1 and in the manner provided in
Section 12.2.


 


(b)           A Note in respect of which a Holder
is electing to exercise its option to require redemption upon a Change in
Ownership or Fundamental Change pursuant to Section 10.8 or repurchase pursuant
to Section 10.9 may be converted only if such Holder withdraws its election in
accordance with Section 10.8 or Section 10.12(d), respectively.  A Holder of Notes is not entitled to any
rights of a holder of Common Stock until such Holder has converted its Notes to
Common Stock, and only then to the extent such Notes are deemed to have been
converted to Common Stock under this Article 12.


 


Section 12.2.          Exercise
of Conversion Privilege; Issuance of Common Stock on Conversion; No Adjustment
for Interest or Dividends; Settlement of Cash or Common Stock upon Conversion.


 


(a)           In order to exercise the conversion
privilege with respect to any Note in certificated form, the Company must
receive at the office or agency of the Company maintained for that purpose or,
at the option of such Holder, the Corporate Trust Office, such Note with the
original or facsimile of the form entitled “Form of Conversion Notice”
on the reverse thereof, duly completed and manually signed, together with such
Notes 


 


70

















 


duly endorsed for transfer, accompanied by the funds,
if any, required by paragraph (d) of this Section 12.2.  Such notice shall also state the name or
names (with address or addresses) in which the certificate or certificates (or
other evidence permissible pursuant to applicable state law) for shares of
Common Stock which shall be issuable on such conversion shall be issued, and
shall be accompanied by transfer or similar taxes, if required pursuant to
Section 12.7.


 


In order to exercise the conversion privilege
with respect to any interest in a Note in global form, the beneficial holder
must complete, or cause to be completed, the appropriate instruction form for
conversion pursuant to the Depositary’s book-entry conversion program,
deliver, or cause to be delivered, by book-entry delivery an interest in
such Note in global form, furnish appropriate endorsements and transfer
documents if required by the Company or the Trustee or the Conversion Agent,
and pay the funds, if any, required by Section 12.2(d) and any transfer or
similar taxes if required pursuant to Section 12.7.


 


(b)           As promptly as practicable after
satisfaction of the requirements for conversion set forth above, subject to
compliance with any restrictions on transfer if shares issuable on conversion
are to be issued in a name other than that of the Holder (as if such transfer
were a transfer of the Note (or portion thereof) so converted), the Company
shall issue and shall deliver to such Holder at the office or agency maintained
by the Company for that purpose or, at the option of such Holder, the Corporate
Trust Office, a certificate or certificates (or other evidence permissible
pursuant to applicable state law) for the number of full shares of Common Stock
issuable upon the conversion of such Note or portion thereof as determined by
the Company in accordance with the provisions of this Article 12 and a check or
cash in respect of any fractional interest in respect of a share of Common
Stock arising upon such conversion, calculated by the Company as provided in
Section 12.3.  In case any Note of a denomination
greater than $1,000 shall be surrendered for partial conversion, subject to
Section 3.2 and Section 3.3, the Company shall execute and the Trustee shall
authenticate and deliver to the holder of the Note so surrendered, without
charge to such Holder, a new Note or Notes in authorized denominations in an
aggregate principal amount equal to the unconverted portion of the surrendered
Note.


 


(c)           Each conversion shall be deemed to
have been effected as to any such Note (or portion thereof) on the date on
which the requirements set forth above in this Section 12.2 have been satisfied
as to such Note (or portion thereof) (such date, the “Conversion Date”),
and the Person in whose name any certificate or certificates (or other evidence
permissible pursuant to applicable state law) for shares of Common Stock shall
be issuable upon such conversion shall be deemed to have become on said date
the holder of record of the shares represented thereby; provided that
any such surrender on any date when the stock transfer books of the Company
shall be closed shall constitute the Person in whose name the certificates (or
other evidence permissible pursuant to applicable state law) are to be issued
as the record holder thereof for all purposes on the next succeeding day on
which such stock transfer books are open, but such conversion shall be at the
Conversion Rate in effect on the date upon which such requirements shall have
been satisfied.


 


71

















 


(d)           Notwithstanding paragraph (f) below,
any Note or portion thereof surrendered for conversion during the period from
the close of business on any Regular Record Date to the opening of business on
the next succeeding Interest Payment Date that has not been called for
redemption during such period shall be accompanied by payment, in immediately
available funds or other funds acceptable to the Company, of an amount equal to
the interest otherwise payable on such Interest Payment Date on the principal
amount being converted; provided that no such payment need be made (1)
if the Company has specified a Redemption Date that is after a Regular Record
Date and on or prior to a date that is two Business Days after the
corresponding Interest Payment Date, (2) if the Company has specified a Change
in Ownership or Fundamental Change repurchase date that is after a Regular
Record Date and on or prior to the date that is one Business Day after the
corresponding Interest Payment Date or (3) to the extent of any overdue
interest, if any overdue interest exists at the time of conversion with respect
to such Note.  Except as provided above
in this Section 12.2, no payment or other adjustment shall be made for interest
accrued on any Note (or portion thereof) converted or for dividends on any
shares issued upon the conversion of such Note (or portion thereof) as provided
in this Article 12.


 


(e)           Upon the conversion of an interest in
a Note in global form, the Trustee (or other Conversion Agent appointed by the
Company), or the Custodian at the direction of the Trustee (or other Conversion
Agent appointed by the Company), shall make a notation on such Note in global
form as to the reduction in the principal amount represented thereby and as
directed by the Company.  The Company
shall notify the Trustee in writing of any conversions of Notes effected
through any Conversion Agent other than the Trustee.


 


(f)            Upon the conversion of a Note (or
portion thereof), that portion of the accrued and unpaid interest with respect
to the converted Note (or portion thereof) to (but excluding) the Conversion
Date shall not be cancelled, extinguished or forfeited, but rather shall be
deemed to be paid in full to the Holder thereof through delivery of the Common
Stock (together with the cash payment, if any, in lieu of fractional shares)
(or cash or a combination of cash and Common Stock) in exchange for the Note
(or portion thereof) being converted pursuant to the provisions hereof; and the
fair market value of such shares of Common Stock (together with any such cash
payment in lieu of fractional shares) (or cash or a combination of cash and
Common Stock) shall be treated as issued, to the extent thereof, first in
exchange for and in satisfaction of the Company’s obligation to pay the
principal amount of the converted Note (or portion thereof) and the accrued and
unpaid interest to (but excluding) the Conversion Date, and the balance, if
any, of such fair market value of such Common Stock (and any such cash payment)
(or cash or a combination of cash and Common Stock) shall be treated as issued
in exchange for and in satisfaction of the right to convert the Note (or
portion thereof) being converted pursuant to the provisions hereof.


 


(g)           In the event that the Company
receives a Form of Conversion Notice on or prior to the date on which the
Company gives a Redemption Notice, the following procedures shall apply:


 


72

















 


(i)            If the Company elects to satisfy all
or any portion of its obligation to convert the Notes (the “Conversion
Obligation”) in cash, the Company shall notify Holders through the Trustee
of the dollar amount to be satisfied in cash (which must be expressed either as
100% of the Conversion Obligation or as a fixed dollar amount) at any time on
or before the date that is two Business Days following the Conversion Date (the
“Cash Settlement Notice Period”), unless the Company already has
informed Holders of its election in connection with its Redemption of the Notes
under Section 10.1.  If the Company
timely elects to pay cash for any portion of the Common Stock otherwise
issuable to Holders upon conversion, Holders may retract the Conversion Notice
at any time during the two Business Days following the final day of the Cash
Settlement Notice Period (the “Conversion Retraction Period”).  No such retraction can be made (and a Form of
Conversion Notice shall be irrevocable) if the Company does not elect to
deliver cash (other than cash in lieu of fractional shares) in lieu of all or a
portion of the Common Stock otherwise to be issued.  Upon the expiration of a Conversion
Retraction Period, a Form of Conversion Notice shall be irrevocable.  If the Company elects to satisfy all or any
portion of the Conversion Obligation in cash, and the applicable Form of
Conversion Notice has not been retracted, then settlement (in cash or in cash
and shares of Common Stock) will be made through the Conversion Agent no later
than the 20th Business Day following the Conversion Date to Holders
timely surrendering Notes; provided, that the Conversion Agent (if other
than the Company, the Guarantor or any Subsidiary thereof) holds as of
10:00 a.m., New York time, on such settlement date money (or a combination
of money and shares of Common Stock, as applicable, subject to the proviso
below) deposited by the Company in immediately available funds and designated
for and sufficient to cover such settlement amount (be it in cash or a
combination of cash and shares of Common Stock) on such date; provided, further,
that the Conversion Agent (if other than the Company, the Guarantor and or
Subsidiary thereof) shall have received any such shares of Common Stock of the
Company (but only to the extent such shares of Common Stock are certificated
and not in global form) not less than three (3) Business Days prior to such
settlement date.


 


(ii)           If the Company does not elect to
satisfy any part of the Conversion Obligation in cash (other than cash in lieu
of any fractional shares), delivery of the Common Stock into which the Notes
are converted (and cash in lieu of any fractional shares) shall occur through
the Conversion Agent no later than the tenth Business Day following the
Conversion Date to Holders timely surrendering Notes; provided that the
Conversion Agent (if other than the Company, the Guarantor or any Subsidiary
thereof) shall have received any such shares of Common Stock from the Company
(but only to the extent such shares of Common Stock are certificated and not in
global form) not less than three (3) Business Days prior to such settlement
date; provided, further, that the Conversion Agent (if other than
the Company, the Guarantor or any Subsidiary thereof), with respect to any cash
being paid by the Company as part of the settlement amount in lieu of
fractional shares, holds as of 10:00 a.m., New York time, on such
settlement date, money deposited by the Company in immediately available funds
and designated for and sufficient to cover such settlement amount being paid in
cash in lieu of fractional shares.


 


(h)           Settlement amounts will be computed
as follows:


 


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(i)            If the Company elects to satisfy the
entire Conversion Obligation in Common Stock, it shall deliver to Holders that
have delivered the Conversion Notice giving rise to the Conversion Obligation a
number of shares of Common Stock equal to (i) the aggregate principal
amount of Notes to be converted divided by 1,000, multiplied by (ii) the
Conversion Rate.  In addition, the
Company shall pay cash for any fractional shares of Common Stock based on the
Last Reported Sale Price of the Common Stock on the last Trading Day
immediately preceding the Conversion Date.


 


(ii)           If the Company elects to satisfy the
entire Conversion Obligation in cash, it shall deliver to Holders that have
delivered the Conversion Notice giving rise to the Conversion Obligation cash
in an amount equal to the product of:


 


(A)          a number equal to (i) the
aggregate principal amount of Notes to be converted divided by 1,000,
multiplied by (ii) the Conversion Rate; and


 


(B)           the average of the Last Reported Sale
Prices of the Common Stock for the five consecutive Trading Days (x)
immediately following the date of the Company’s notice of its election to
deliver cash, if the Company has not given a Redemption Notice, or (y) ending
on the third Trading Day prior to the Conversion Date, in the case of a
conversion following a Redemption Notice specifying that the Company intends to
deliver cash upon conversion (each a “Cash Settlement Averaging Period”).


 


(iii)          If the Company elects to satisfy a fixed
portion (other than 100%) of the Conversion Obligation in cash, it will deliver
to Holders the specified cash amount (the “Cash Amount”) and a number of
shares of Common Stock equal to the greater of (i) zero and (ii) the
excess, if any, of the number of shares of Common Stock calculated as if the
Company elected to satisfy the entire Conversion Obligation in shares over the
number of shares equal to the sum, for each day of the applicable Cash
Settlement Averaging Period, of (x) 20% of the Cash Amount, divided by (y) the
Last Reported Sale Price of the Common Stock on such day.  In addition, the Company shall pay cash for
all fractional shares of Common Stock based on the Last Reported Sale Price of
the Common Stock on the last Trading Day immediately preceding the Conversion
Date.


 


In no event shall the amount of cash delivered upon conversion of Notes
exceed $1,000 per $1,000 principal amount of Notes to be converted.  Any such excess amount shall be paid by the
Company in shares of Common Stock.


 


The Company must determine whether or not it will satisfy all or a
portion of the Conversion Obligation in cash at the time it issues a Redemption
Notice, and such notices will state the amount of the Conversion Obligation to
be settled in cash.  If a Form of Conversion
Notice is received from Holders of Notes after the date that a Redemption
Notice has been issued, such Holders may not retract their Conversion
Notice.  In such case, settlement (in
cash and/or Common Stock) will occur no later than the 10th Business
Day following the Conversion Date.


 


74

















 


(iv)          The Company may irrevocably elect, in
its sole discretion and without the consent of Holders of the Notes, by notice
to the Trustee and the Holders of the Notes, to satisfy in cash 100% of the
principal amount of the Notes converted after the date of such election.  Notwithstanding such election, the Company
may satisfy a Conversion Obligation to the extent it exceeds the principal
amount in cash or Common Stock or combination of cash or Common Stock pursuant
to this Section 12.2.  If a Form of
Conversion Notice is received from Holders of Notes after the date that a
Redemption Notice has been issued, such Holders may not retract their
Conversion Notice.  In such case,
settlement (in cash and/or Common Stock) will occur no later than the 10th
Business Day following the Conversion Date.


 


Section 12.3.          Cash
Payments in Lieu of Fractional Shares. 
No fractional shares of Common Stock or scrip certificates representing
fractional shares shall be issued upon conversion of Notes.  If more than one Note shall be surrendered
for conversion at one time by the same Holder, the number of full shares that
shall be issuable upon conversion shall be computed on the basis of the
aggregate principal amount of the Notes (or specified portions thereof to the
extent permitted hereby) so surrendered. 
If any fractional share of stock would be issuable upon the conversion
of any Note or Notes, the Company shall make an adjustment and payment therefor
in cash to the Holder thereof at the Last Reported Sale Price of the Common Stock
on the last Trading Day immediately preceding the day on which the Notes (or
the specified portions thereof) are deemed to have been converted.


 


Section 12.4.          Conversion
Rate.  Each $1,000 principal amount
of the Notes shall be convertible into the number of shares of Common Stock
specified in the form of Note (herein called the “Conversion Rate”) set
forth in Exhibit A hereto, subject to adjustment as provided in this
Article 12.  References to Conversion
Rate, applicable Conversion Rate, current Conversion Rate and Conversion Rate
then in effect mean the Conversion Rate in effect on the relevant date.


 


Section 12.5.          Adjustment
of Conversion Rate.  The Conversion
Rate shall be adjusted from time to time by the Company as follows:


 


(a)           If shares of Common Stock are issued
as a dividend or distribution on shares of Common Stock, or if a share split or
share combination is effected, the Conversion Rate will be adjusted based on
the following formula:


 




	
  CR’=CR0 x

  	
  OS’

  
	
  OS0

  






 


where,


 


	
  CR0

  	
  =

  	
  the Conversion Rate in effect immediately prior to such event

  
	
   

  	
   

  	
   

  
	
  CR’

  	
  =

  	
  the Conversion Rate in effect immediately after such event

  
	
   

  	
   

  	
   

  
	
  OS0

  	
  =

  	
  the number of shares of Common Stock outstanding immediately prior to
  such event

  
	
   

  	
   

  	
   

  
	
  OS’

  	
  =

  	
  the number of shares of Common Stock outstanding immediately after
  such event

  



 


75

















 


An adjustment made pursuant to this subsection (a) shall become
effective on the date immediately after (x) the date fixed for the
determination of stockholders entitled to receive such dividend or other
distribution or (y) the date on which such split or combination becomes
effective, as applicable.  If any
dividend or distribution described in this subsection (a) is declared but not
so paid or made, the Conversion Rate shall again be adjusted to the Conversion
Rate that would then be in effect if such dividend or distribution had not been
declared.


 


(b)           If any rights, warrants, options or
other securities (other than any rights or warrants issued pursuant to the a
stockholder rights plan (commonly referred to as a “poison pill” plan)
referred to in Section 12.5(c)) are issued to all or substantially all of the
Holders of shares of Common Stock entitling them for a period of not more than
60 days after the date of issuance thereof to subscribe for or purchase shares
of Common Stock, or securities convertible into shares of Common Stock within
60 days after the date of issuance thereof, in either case at an exercise price
per share or a conversion price per share less than the Last Reported Sale
Price of the Common Stock on the Business Day immediately preceding the time of
announcement of such issuance, the Conversion Rate will be adjusted based on
the following formula:


 




	
  CR’=CR0 x

  	
   

  	
  OS0 + X

  
	
   

  	
  OS0 + Y

  






 


where,


 


	
  CR0

  	
  =

  	
  the Conversion Rate in effect immediately prior to such event

  
	
   

  	
   

  	
   

  
	
  CR’

  	
  =

  	
  the Conversion Rate in effect immediately after such event

  
	
   

  	
   

  	
   

  
	
  OS0

  	
  =

  	
  the number of shares of Common Stock outstanding immediately prior to
  such event, including Common Stock that would be outstanding upon exercise or
  conversion of all options and convertible securities whether or not such
  options or convertible securities are actually exercisable or convertible at
  such time

  
	
   

  	
   

  	
   

  
	
  X

  	
  =

  	
  the total number of shares of Common Stock issuable pursuant to such
  rights, warrants, options, other securities or convertible securities

  
	
   

  	
   

  	
   

  
	
  Y

  	
  =

  	
  the number of shares of Common Stock equal to the aggregate exercise
  price or conversion price payable to exercise or convert such rights,
  warrants, options, other securities or convertible securities divided by the
  average of the Last Reported Sale Prices of the Common Stock for the 10
  consecutive Trading Days prior to the Business Day immediately preceding the
  date of announcement of the issuance of such rights, warrants, options, other
  securities or convertible securities

  



 


76

















 


An adjustment made pursuant to this subsection (b) shall be made
successively whenever such rights, warrants, options, other securities or
convertible securities are issued, and shall become effective on the day
following the date of announcement of such issuance.  If, at the end of the period during which
such rights, warrants, options, other securities or convertible securities are
exercisable or convertible, not all rights, warrants, options, other securities
or convertible securities have been exercised or converted, as the case may be,
the adjusted Conversion Rate shall be immediately readjusted to what it would
have been based upon the number of additional shares of Common Stock actually
issued (or the number of shares of Common Stock actually issued upon conversion
of convertible securities actually issued).


 


For purposes of Section 12.1 and this Section 12.5, in determining
whether such rights, warrants, options, other securities or convertible
securities entitle the Holder to subscribe for or purchase or exercise a
conversion right for shares of Common Stock at less than the average Last
Reported Sale Price of the Common Stock, and in determining the aggregate
exercise or conversion price payable for such shares of Common Stock, there
shall be taken into account any consideration received by the Company for such
rights, warrants, options, other securities or convertible securities and any
amount payable on exercise or conversion thereof, with the value of such
consideration, if other than cash, to be determined by the Board of Directors
and such determination shall be provided to the Trustee in a Board Resolution.


 


(c)           If shares of the Company’s capital
stock, evidences of the Company’s indebtedness, shares of the capital stock of
the Company’s subsidiaries or other assets or property of the Company or its
subsidiaries are distributed to all or substantially all of the Holders of shares
of Common Stock, excluding:


 


(i)            dividends, distributions and rights,
warrants, options, other securities or convertible securities referred to in
clause (a) or (b) above;


 


(ii)           dividends or distributions in cash
referred to in clause (d) below; and


 


(iii)          spin-offs described below in
this clause (c);


 


then the Conversion Rate will be adjusted based on the following
formula:


 




	
  CR’=CR0 x

  	
   

  	
  SP0

  
	
   

  	
  SP0 —FMV

  






 


where,


 


	
  CR0

  	
  =

  	
  the Conversion Rate in effect immediately prior to such distribution

  
	
   

  	
   

  	
   

  
	
  CR’

  	
  =

  	
  the Conversion Rate in effect immediately after such distribution

  
	
   

  	
   

  	
   

  
	
  SP0

  	
  =

  	
  the average of the Last Reported Sale Prices of the Common Stock for
  the ten (10) consecutive Trading Days prior to the Business Day immediately
  preceding the record date for such distribution

  
	
   

  	
   

  	
   

  
	
  FMV

  	
  =

  	
  the fair market value (as determined in good faith by the Board of
  Directors of the Company) of the shares of capital stock, evidences of
  indebtedness, assets or property distributed with respect to each outstanding
  share of Common Stock on the record date for such distribution

  



 


77

















 


An adjustment made pursuant to the above paragraph shall be made
successively whenever any such distribution is made and shall become effective
on the day immediately after the dated fixed for the determination of
shareholders entitled to receive such distribution.


 


With respect to an adjustment pursuant to this clause (c) where there
has been a payment of a dividend or other distribution on the Common Stock of
shares of capital stock of any class or series, or similar equity interest, of
or relating to a subsidiary or other business unit of the Company (referred to
as a “spin-off”), the Conversion Rate in effect immediately before
the close of business on the record date fixed for determination of
stockholders entitled to receive the distribution will be increased based on
the following formula:


 




	
  CR’=CR0 x

  	
   

  	
  FMV0 + MP0

  
	
   

  	
  MP0

  






 


where,


 


	
  CR0

  	
  =

  	
  the Conversion Rate in effect immediately prior to such distribution

  
	
   

  	
   

  	
   

  
	
  CR’

  	
  =

  	
  the Conversion Rate in effect immediately after such distribution

  
	
   

  	
   

  	
   

  
	
  FMV0

  	
  =

  	
  the average of the Last Reported Sale Prices of the capital stock or
  similar equity interest distributed to Holders of shares of Common Stock
  applicable to one share of our Common Stock over the first 10 consecutive
  Trading Days after the effective date of the spin-off

  
	
   

  	
   

  	
   

  
	
  MP0

  	
  =

  	
  the average of the Last Reported Sale Prices of the Common Stock over
  the first 10 consecutive Trading Days after the effective date of the spin-off

  



 


The adjustment to the Conversion Rate under the preceding paragraph
will occur on the 10th Trading Day after the effective date of the
spin-off.


 


If any such dividend or distribution described in this subsection (c)
is declared but not paid or made, the Conversion Rate shall again be adjusted
to be the Conversion Rate that would then be in effect if such dividend or
distribution had not been declared.


 


Rights or warrants distributed by the Company to all holders of Common
Stock entitling the holders thereof to subscribe for or purchase shares of the
Company’s capital stock (either initially or under certain circumstances),
which rights or warrants, until the occurrence of a specified event or events
specified in such rights or warrants or related instruments or agreements
governing the same (a “Trigger Event”):


 


(i)            are deemed to be transferred with
such shares of Common Stock;


 


78

















 


(ii)           are not exercisable; and


 


(iii)          are also issued in respect of future
issuances of Common Stock;


 


shall be deemed not to have been distributed for purposes of this
Section 12.5(c) (and no adjustment to the Conversion Rate under this Section
12.5(c) will be required) until the occurrence of the earliest Trigger
Event.  If such right or warrant is
subject to subsequent events, upon the occurrence of which such right or
warrant shall become exercisable to purchase different distributed assets,
evidences of indebtedness or other assets or entitle the Holder to purchase a
different number or amount of the foregoing or to purchase any of the foregoing
at a different purchase price, then the occurrence of each such event shall be
deemed to be the date of issuance and the Conversion Record Date with respect
to a new right or warrant (and a termination or expiration of the existing
right or warrant without exercise by the Holder thereof); in addition, in the
event of any distribution (or deemed distribution) of rights or warrants, or
any Trigger Event or other event (of the type described in the preceding
sentence) with respect thereto, that resulted in an adjustment to the
Conversion Rate under this Section 12.5(c):


 


(i)            in the case of any such rights or
warrants which shall all have been redeemed or purchased without exercise by
any Holders thereof, the Conversion Rate shall be readjusted upon such final
redemption or purchase to give effect to such distribution or Trigger Event, as
applicable, as though it were a cash distribution, equal to the per share
redemption or purchase price received by a holder of Common Stock with respect
to such rights or warrants (assuming such holder had retained such rights or
warrants), made to all holders of Common Stock as of the date of such
redemption or purchase; and


 


(ii)           in the case of such rights or warrants
which shall have expired or been terminated without exercise, the Conversion
Rate shall be readjusted as if such rights and warrants had never been issued.


 


For purposes of this Section 12.5(c) and Section 12.5(a) and Section
12.5(b), any dividend or distribution to which this Section 12.5(c) is
applicable that also includes shares of Common Stock, a subdivision or
combination of Common Stock to which Section 12.5(a) applies, or rights or
warrants to subscribe for or purchase shares of Common Stock to which Section
12.5(b) applies (or any combination thereof), shall be deemed instead to be:


 


(A)          a dividend or distribution of the
evidence of indebtedness, shares of capital stock or other assets or property,
other than such shares of Common Stock, such subdivision or combination or such
rights, warrants, options or other securities to which Section 12.5(a) and
Section 12.5(b) apply, respectively (and any Conversion Rate reduction required
by this Section 12.5(c) with respect to such dividend or distribution shall
then be made), immediately followed by


 


(B)           a dividend or distribution of such
shares of Common Stock, such subdivision or combination or such rights,
warrants, options or other securities (and any further Conversion Rate
reduction required by Section 12.5(a) 


 


79

















 


and Section 12.5(b) with respect to such dividend or
distribution shall then be made), except:


 


(1)           the
effective date of such dividend or distribution shall be “the date fixed for
the determination of stockholders entitled to receive such dividend or other
distribution” or “the date on which such split or combination becomes
effective,” as applicable for purposes of Section 12.5(a) and the “time of
announcement of such issuance” for purposes of Section 12.5(b); and


 


(2)           any
shares of Common Stock included in such dividend or distribution shall not be
deemed “outstanding immediately prior to such event” for purposes of
Section 12.5(a) and any reduction or increase in the number of shares of Common
Stock resulting from such subdivision or combination shall be disregarded in
connection with such dividend or distribution.


 


(d)           If any cash dividend or distribution
is paid or made to all or substantially all of the holders of Common Stock, the
Conversion Rate will be adjusted based on the following formula:


 




	
  CR’=CR0 x

  	
   

  	
  SP0

  
	
   

  	
  SP0-C

  






 


where,


 


	
  CR0

  	
  =

  	
  the Conversion Rate in effect immediately prior to the record date
  for such distribution

  
	
   

  	
   

  	
   

  
	
  CR’

  	
  =

  	
  the Conversion Rate in effect immediately after the record date for
  such distribution

  
	
   

  	
   

  	
   

  
	
  SP0

  	
  =

  	
  the average of the Last Reported Sale Prices of the Common Stock for
  the 10 consecutive Trading Days prior to the Business Day immediately
  preceding the record date of such distribution

  
	
   

  	
   

  	
   

  
	
  C

  	
  =

  	
  the amount in cash per share the Company distributes to Holders of
  shares of Common Stock

  



 


An adjustment made pursuant to this subsection (d) shall become
effective on the date immediately after the record date for the determination
of shareholders entitled to receive such dividend or distribution.  If any dividend or distribution described in
this subsection (d) is declared but not so paid or made, the Conversion Rate
shall again be adjusted to the Conversion Rate that would then be in effect if
such dividend or distribution had not been declared.


 


(e)           In case a tender or exchange offer
made by the Company or any Subsidiary for all or any portion of the Common
Stock shall expire and such tender or exchange offer (as amended upon the
expiration thereof) shall require the payment to stockholders of consideration
per share of Common Stock having a fair market value (as determined in good
faith by the Board of Directors) that as of the last time (the “Expiration
Time”) tenders or exchanges may be made pursuant to such tender or 


 


80





















 


exchange offer (as it may be amended) exceeds the
average of the Last Reported Sale Price of the Common Stock for the ten (10)
consecutive Trading Days next succeeding the Expiration Time, the Conversion
Rate will be adjusted based on the following formula:


 




	
  CR’

  	
   

  	
  =

  	
   

  	
  CR0

  	
   

  	
  x

  	
   

  	
  FMV + MPV

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
  OS0 x SP0

  






 


Where,


 


	
  CR0

  	
  =

  	
  the Conversion Rate in effect immediately
  prior to the Expiration Time

  
	
   

  	
   

  	
   

  
	
  CR’

  	
  =

  	
  the Conversion Rate in effect immediately
  after the Expiration Time

  
	
   

  	
   

  	
   

  
	
  FMV

  	
  =

  	
  the fair market value (as determined in
  good faith by the Board of Directors of the Company) of the aggregate
  consideration payable to stockholders based on the acceptance (up to any
  maximum specified in the terms of the tender or exchange offer) of all shares
  validly tendered or exchanged and not withdrawn as of the Expiration Time
  (the shares deemed so accepted up to any such maximum, being referred to as
  the “Purchased Shares”).

  
	
   

  	
   

  	
   

  
	
  MPV

  	
  =

  	
  the product of the number of shares of Common
  Stock outstanding (less any Purchased Shares) at the Expiration Time and the
  average of the Last Reported Sale Price of the Common Stock for the (ten) 10
  consecutive Trading Days next succeeding the Expiration Time.

  
	
   

  	
   

  	
   

  
	
  OS0

  	
  =

  	
  the number of shares of Common Stock
  outstanding (including any tendered or exchanged shares) at the Expiration
  Time.

  
	
   

  	
   

  	
   

  
	
  SP0

  	
  =

  	
  the average of the Last Reported Sale
  Prices of the Common Stock for the ten (10) consecutive Trading Days next
  succeeding the Expiration Time.

  



 


Such adjustment shall become effective immediately prior to the opening
of business on the day following the Expiration Time.  If the Company is obligated to purchase
shares pursuant to any such tender or exchange offer, but the Company is
permanently prevented by applicable law from effecting any such purchases or
all such purchases are rescinded, the Conversion Rate shall again be adjusted
to be the Conversion Rate that would then be in effect if such tender or 


 


81

















 


exchange offer had not been
made.  In no event will the Conversion
Rate be decreased pursuant to this Section 12.5(e).


 


(f)            The reclassification of Common Stock
into securities other than Common Stock (other than any reclassification upon
an event to which Section 12.6 applies) shall be deemed to involve (a) a
distribution of such securities other than Common Stock to all Holders of
Common Stock (and the effective date of such reclassification shall be deemed
to be “the date fixed for the determination of shareholders entitled to receive
such distribution” within the meaning of Section 12.5(c)), and (b) a
subdivision, split or combination, as the case may be, of the number of shares
of Common Stock outstanding immediately prior to such reclassification into the
number of shares of Common Stock outstanding immediately thereafter (and the
effective date of such reclassification shall be deemed to be “the day upon
which such split or combination becomes effective” within the meaning of
Section 12.5(a)).


 


(g)           Notwithstanding the foregoing
provisions of Section 12.5, no adjustment shall be made thereunder, nor shall
an adjustment be made to the ability of a Holder of a Note to convert, for any
distribution described therein if the Holder will otherwise participate in the
distribution without conversion of such Holder’s Notes.


 


(h)           The Company may make such increases
in the Conversion Rate, in addition to those required by clauses (a) through
(e) of this Section 12.5, as the Board of Directors deems advisable to avoid or
diminish any income tax to Holders of shares of capital stock of the Company
(or rights to acquire such capital stock) resulting from any dividend or
distribution of such capital stock (or rights to acquire common stock) or from
any event treated as such for income tax purposes.


 


To the extent permitted by applicable law, the Company from time to
time may increase the Conversion Rate by any amount for any period of time if
the increase is irrevocable during the period and the Board of Directors shall
have made a determination that such increase would be in the best interests of
the Company, which determination shall be conclusive.  Whenever the Conversion Rate is increased
pursuant to the preceding sentence, the Company shall mail to Holders of record
of the Notes a notice of the increase at least 20 days prior to the date the
increased Conversion Rate takes effect and in accordance with applicable law,
and such notice shall state the increased Conversion Rate and the period during
which it will be in effect.


 


(i)            No adjustment to the Conversion Rate
need be made:


 


(i)            upon the issuance of any shares of
Common Stock pursuant to any present or future plan providing for the
reinvestment of dividends or interest payable on securities of the Company and
the investment of additional optional amounts in shares of Common Stock under
any plan;


 


(ii)           upon the issuance of any shares of
Common Stock or options or rights to purchase shares of Common Stock pursuant
to any present or future employee, director or consultant incentive benefit
plan or program of or assumed by the Company or any of its Subsidiaries;


 


82

















 


(iii)          upon the issuance of any shares of
Common Stock pursuant to any option, warrant, right, or exercisable,
exchangeable or convertible security not described in (ii) above;


 


(iv)          upon the issuance of any shares of
Common Stock pursuant to this Indenture or the indentures governing the PBGC 6%
Senior Notes, the PBGC 8% Contingent Notes and the Employee Notes;


 


(v)           upon the repurchase by the Company of
shares of Common Stock from any employee deferred compensation trusts or
members of its management upon their resignation or termination of employment;


 


(vi)          for a change in the par value of the
Common Stock;


 


(vii)         for accrued and unpaid interest;


 


(viii)        upon any issuance or sale (or deemed
issuance or sale) of any securities issued or sold pursuant to or in connection
with the Plan or upon conversion, exercise or exchange of any such securities;
or


 


(ix)           upon any distribution of assets
pursuant to or in connection with the Plan.


 


No adjustment to the Conversion Rate will be required pursuant to this
Indenture in connection with any event, transaction or other occurrence unless
the terms of this Indenture specifically require that such an adjustment be
made in connection with such event, transaction or other occurrence.


 


(j)            All adjustments to the Conversion
Rate under this Article 12 shall be made by the Company and shall be calculated
to the nearest one ten thousandth (1/10,000) of a share.


 


(k)           Whenever the Conversion Rate is
adjusted as herein provided, the Company shall promptly file with the Trustee
and any Conversion Agent other than the Trustee an Officers’ Certificate
setting forth the Conversion Rate after such adjustment and setting forth a
brief statement of the facts requiring such adjustment.  Unless and until a Trust Officer of the
Trustee shall have received such Officers’ Certificate, the Trustee shall not
be deemed to have knowledge of any adjustment of the Conversion Rate and may
assume that the last Conversion Rate of which it has knowledge is still in
effect.  Promptly after delivery of such
certificate, the Company shall prepare a notice of such adjustment of the
Conversion Rate setting forth the adjusted Conversion Rate and the date on
which each adjustment becomes effective and shall mail such notice of such
adjustment of the Conversion Rate to the Holder of each Note at its last
address appearing on the Register, within 20 days after execution thereof.  Failure to deliver such notice shall not
affect the legality or validity of any such adjustment.


 


(l)            In any case in which this Section
12.5 provides that an adjustment shall become effective immediately after (1) a
record date or Stock Record Date for an event, 


 


83

















 


(2) the date fixed for the determination of
stockholders entitled to receive a dividend or distribution pursuant to Section
12.5(a) or (3) a date fixed for the determination of stockholders entitled to
receive rights, warrants, options or other securities pursuant to Section
12.5(b), (each a “Determination Date”), the Company may elect to defer
until the occurrence of the applicable Adjustment Event (as hereinafter
defined) (x) issuing to the Holder of any Note (or portion thereof) converted
after such Determination Date and before the occurrence of such Adjustment
Event, the additional shares of Common Stock or other securities issuable upon
such conversion by reason of the adjustment required by such Adjustment Event
over and above the Common Stock issuable upon such conversion before giving
effect to such adjustment and (y) paying to such Holder any amount in cash in
lieu of any fraction pursuant to Section 12.3; provided that in the case
of an adjustment made pursuant to Section 12.5(c) with respect to a
distribution of shares of capital stock of, or similar equity interest in, a
subsidiary or other business unit of the Company, the Company may defer the
issuance of such additional shares and cash payment, if any, until the 3rd
Business Day immediately following the last day of the 20 consecutive Trading
Day period commencing on the 5th Trading Day after the Ex-Dividend
Date.  For purposes of this Section
12.5(l), the term “Adjustment Event” shall mean:


 


(i)            in any case referred to in clause
(1) hereof, the occurrence of such event;


 


(ii)           in any case referred to in clause (2)
hereof, the date any such dividend or distribution is paid or made; and


 


(iii)          in any case referred to in clause (3)
hereof, the date of expiration of such rights, warrants, options or other
securities (or the conversion period of any convertible securities issued upon
exercise thereof).


 


(m)          For purposes of this Section 12.5, the
number of shares of Common Stock at any time outstanding shall not include
shares held in the treasury of the Company but shall include shares issuable in
respect of scrip certificates issued in lieu of fractions of shares of Common
Stock.  The Company will not pay any
dividend or make any distribution on shares of Common Stock held in the
treasury of the Company.


 


(n)           Notwithstanding anything in this
Indenture to the contrary, in no event shall the Conversion Rate be adjusted so
that the Conversion Price would be less than $0.01.


 


Section 12.6.          Effect
of Reclassification, Consolidation, Merger or Sale.  If there shall occur (i) any reclassification
or change of the outstanding shares of Common Stock (other than a subdivision
or combination to which Section 12.5(a) applies), (ii) any consolidation,
merger or combination of the Company with another Person as a result of which
Holders of Common Stock shall be entitled to receive stock, other securities or
other property or assets (including cash) with respect to or in exchange for
such Common Stock, or (iii) any sale or conveyance of all or substantially all
of the properties and assets of the Company to any other Person as a result of
which Holders of Common Stock shall be entitled to receive stock, other
securities or other 


 


84

















 


property or assets (including
cash) with respect to or in exchange for such Common Stock, then the Company or
the successor or purchasing Person, as the case may be, shall execute with the
Trustee a supplemental indenture (which shall comply with the Trust Indenture
Act as in force at the date of execution of such supplemental indenture)
providing that each Note shall be convertible into the kind and amount of
shares of stock, other securities or other property or assets (including cash)
receivable upon such reclassification, change, consolidation, merger,
combination, sale or conveyance by a Holder of a number of shares of Common
Stock issuable upon conversion of such Notes (assuming, for such purposes, a
sufficient number of treasury shares and authorized and unissued shares of
Common Stock are available to convert all such Notes) immediately prior to such
reclassification, change, consolidation, merger, combination, sale or
conveyance assuming such Holder of Common Stock did not exercise his rights of
election, if any, as to the kind or amount of stock, other securities or other
property or assets (including cash) receivable upon such reclassification,
change, consolidation, merger, combination, sale or conveyance (provided
that, if the kind or amount of stock, other securities or other property or
assets (including cash) receivable upon such reclassification, change,
consolidation, merger, combination, sale or conveyance is not the same for each
share of Common Stock in respect of which such rights of election shall not
have been exercised (a “non-electing share”), then for the
purposes of this Section 12.6 the kind and amount of stock, other securities or
other property or assets (including cash) receivable upon such reclassification,
change, consolidation, merger, combination, sale or conveyance for each non-electing
share shall be deemed to be the kind and amount so receivable per share by a
plurality of the non-electing shares). 
Such supplemental indenture shall provide for adjustments which shall be
as nearly equivalent as may be practicable to the adjustments provided for in
this Article 12.


 


The Company shall cause notice of the execution of such supplemental
indenture to be mailed to each Holder of Notes, at its address appearing on the
Register, within 20 days after execution thereof.  Failure to deliver such notice shall not
affect the legality or validity of such supplemental indenture.


 


The above provisions of this Section shall similarly apply to
successive reclassifications, changes, consolidations, mergers, combinations,
sales and conveyances.


 


If this Section 12.6 applies to any event or occurrence, Section 12.5
shall not apply.


 


Section 12.7.          Taxes on
Shares Issued.  The issue of stock
certificates on conversions of Notes shall be made without charge to the
converting Holder for any documentary, stamp or similar issue or transfer tax
in respect of the issue thereof.  The
Company shall not, however, be required to pay any such tax which may be
payable in respect of any transfer involved in the issue and delivery of such
certificates in any name other than that of the Holder of any Note converted,
and the Company shall not be required to issue or deliver any such stock
certificate unless and until the Person or Persons requesting the issue thereof
shall have paid to the Company the amount of such tax or shall have established
to the satisfaction of the Company that such tax has been paid.


 


Section 12.8.          Reservation
of Shares, Shares to Be Fully Paid; Compliance with Governmental Requirements;
Listing of Common Stock.  The Company
shall provide out of its authorized but unissued shares or shares held in
treasury, sufficient shares of Common Stock to 


 


85

















 


provide for the conversion of
the Notes from time to time as such Notes are presented for conversion.


 


Before taking any action which would cause an adjustment increasing the
Conversion Rate to an amount that would cause the Conversion Price to be
reduced below the then par value, if any, of the shares of Common Stock
issuable upon conversion of the Notes, the Company will take all corporate
action which may, in the opinion of its counsel, be necessary in order that the
Company may validly and legally issue such shares of Common Stock at such
adjusted Conversion Rate.


 


The Company covenants that all shares of Common Stock which may be
issued upon conversion of Notes will upon issue be fully paid and nonassessable
by the Company and free from all taxes, liens and charges with respect to the
issue thereof.


 


The Company further covenants that, prior to the issuance of any Common
Stock hereunder, it shall use its commercially reasonable efforts to cause the
Common Stock to be listed on the Nasdaq National Market or any national
securities exchange or other automated quotation system.  The Company covenants to use its commercially
reasonable efforts to list such Common Stock issuable upon conversion of the
Notes in accordance with the requirements of such market, exchange or automated
quotation system at such time.


 


Section 12.9.          Responsibility
of Trustee.  The Trustee and any
other Conversion Agent shall not at any time be under any duty or
responsibility to any Holder of Notes to determine the Conversion Rate or
whether any facts exist which may require any adjustment of the Conversion
Rate, or with respect to the nature or extent or calculation of any such
adjustment when made, or with respect to the method employed, or herein or in
any supplemental indenture provided to be employed, in making the same.  The Trustee and any other Conversion Agent
shall not be accountable with respect to the validity or value (or the kind or
amount) of any shares of Common Stock, or of any securities or property, which
may at any time be issued or delivered upon the conversion of any Note; and the
Trustee and any other Conversion Agent make no representations with respect
thereto.  Neither the Trustee nor any
Conversion Agent shall be responsible for any failure of the Company to issue,
transfer or deliver any shares of Common Stock or stock certificates or other
securities or property or cash upon the surrender of any Note for the purpose
of conversion or to comply with any of the duties, responsibilities or
covenants of the Company contained in this Article 12.  Without limiting the generality of the
foregoing, neither the Trustee nor any Conversion Agent shall be under any
responsibility to determine the correctness of any provisions contained in any
supplemental indenture entered into pursuant to Section 12.6 relating either to
the kind or amount of shares of stock or securities or property (including
cash) receivable by Holders upon the conversion of their Notes after any event
referred to in such Section 12.6 or to any adjustment to be made with respect
thereto, but, subject to the provisions of Section 6.3, may accept as
conclusive evidence of the correctness of any such provisions, and shall be
protected in relying upon, the Officers’ Certificate (which the Company shall
be obligated to file with the Trustee prior to the execution of any such
supplemental indenture) with respect thereto.


 


Section 12.10.        Notice to
Holders Prior to Certain Actions. In case:


 


86

















 


(a)           the Company shall declare a dividend
(or any other distribution) on its Common Stock that would require an
adjustment in the Conversion Rate pursuant to Section 12.5;


 


(b)           of any reclassification or
reorganization of the Common Stock (other than a subdivision or combination of
the outstanding Common Stock, or a change in par value, or from par value to no
par value, or from no par value to par value), or of any consolidation or
merger to which the Company is a party and for which approval of any
stockholders of the Company is required, or of the sale or transfer of all or
substantially all of the assets of the Company;


 


(c)           of the voluntary or involuntary
dissolution, liquidation or winding up of the Company; or


 


(d)           the Company shall authorize the
granting to all or substantially all of the holders of its Common Stock of
rights, warrants or options to subscribe for or purchase any shares of capital
stock of any class of any other rights,


 


the Company shall cause to be mailed to each Holder of Notes at its
address appearing on the Register, as promptly as possible but at least 10 days
prior to the applicable record or effective date hereinafter specified (but in
no event prior to the date of the notice provided to the holders of Common
Stock), a notice stating (x) the date on which a record is to be taken for the
purpose of such dividend, distribution, rights, options or warrants, or, if a
record is not to be taken, the date as of which the Holders of Common Stock of
record to be entitled to such dividend, distribution, rights, options or warrants
are to be determined, or (y) the date on which such reclassification,
consolidation, merger, sale, transfer, dissolution, liquidation or winding up
is expected to become effective or occur, and the date as of which it is
expected that Holders of Common Stock of record shall be entitled to exchange
their Common Stock for securities or other property deliverable upon such
reclassification, consolidation, merger, sale, transfer, dissolution,
liquidation or winding up.  Failure to
give such notice, or any defect therein, shall not affect the legality or
validity of such dividend, distribution, reclassification, consolidation,
merger, sale, transfer, dissolution, liquidation or winding up.


 


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 instrument.


 


87

















 


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


 


	
   

  	
  UAL CORPORATION

  
	
   

  	
  By:

  	
  /s/ Frederic F. Brace

  	
   

  
	
   

  	
  Name:

  	
  Frederic F. Brace

  	
   

  
	
   

  	
  Title:

  	
  Executive Vice President

  and Chief Financial Officer

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  UNITED AIR LINES, INC., as GUARANTOR

  
	
   

  	
  By:

  	
  /s/ Frederic F. Brace

  	
   

  
	
   

  	
  Name:

  	
  Frederic F. Brace

  	
   

  
	
   

  	
  Title:

  	
  Executive Vice President

  and Chief Financial Officer

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  THE BANK OF NEW YORK TRUST

  COMPANY, N.A., Not in its individual capacity

  but solely in its capacity as TRUSTEE

  
	
   

  	
  By:

  	
  /s/ Roxane Ellwanger

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Name:

  	
  Roxane Ellwanger

  	
   

  
	
   

  	
  Title:

  	
  Assistant Vice President

  	
   

  
								



 

















 


EXHIBIT A


 


[FORM OF NOTE]


 


[INSERT GLOBAL NOTE LEGEND AS SPECIFIED IN
SECTION 2.4

AND THE TRANSFER RESTRICTION LEGEND


AS SPECIFIED IN SECTION 2.5,


IN EACH CASE, IF APPLICABLE]


 


CUSIP No.: 
902549 AE 4


 


UAL CORPORATION


 


5% SENIOR NOTE DUE 2021


 


	
  No. A-1

  	
   

  	
  $

  	
  149,646,114

  



 


UAL CORPORATION, a Delaware corporation (the “Company,” which term
includes any successor entity), for value received promises to pay to Cede
& Co. or registered assigns, the principal sum of One Hundred Forty-Nine
Million, Six Hundred Forty-Six Thousand, One Hundred and Fourteen
Dollars, on February 1, 2021.


 


Interest Payment Dates:  June 30
and December 31.


 


Record Dates:  June 15 and
December 15.


 


Reference is made to the further provisions of this Note contained
herein, which will for all purposes have the same effect as if set forth at
this place, including, without limitation, provisions giving the holder of this
Note the right to convert this Note into Common Stock of the Company on the
terms and subject to the limitations referred to on the reverse hereof and as
more fully specified in the Indenture. 
Under the circumstances described in the Indenture, the Company may
fulfill all or part of its conversion obligation by delivering cash in lieu of
shares of Common Stock or a combination of cash and shares of Common Stock.


 


IN WITNESS WHEREOF, the Company has caused this Note to be signed
manually or by facsimile by its duly authorized officers and a facsimile of its
corporate seal to be affixed hereto or imprinted hereon.


 


	
   

  	
  UAL CORPORATION

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  



 

















 


Certificate of Authentication


 


This is one of the 5% Senior Convertible Notes due 2021 referred to in
the within-mentioned Indenture.


 


	
   

  	
  THE BANK OF NEW YORK TRUST COMPANY, N.A., Not in its individual
  capacity but solely in its capacity as TRUSTEE

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Dated:

  	
  By:

  	
   

  	
   

  
	
   

  	
   

  	
  Authorized Signatory

  



 

















 


(REVERSE OF SECURITY)


 


5% SENIOR CONVERTIBLE NOTE DUE 2021


 


1.             Interest.  UAL Corporation, a Delaware corporation (the
“Company”), promises to pay interest on the principal amount of this Note as
follows:  Interest will accrue on this
Note at a rate of 5% per annum from the most recent date on which interest has
been paid or, if no interest has been
paid, from February 1, 2006, and shall be payable in cash on the terms set
forth herein and in the Indenture (hereinafter defined) (except as provided
below) semiannually in arrears on each Interest Payment Date, commencing June
30, 2006; provided, that the Company may elect on any Interest Payment Date on
or prior to the first anniversary of the issuance date of such Note to pay such
interest in Common Stock having a Market Value as of the close of business on
the Business Day immediately preceding such Interest Payment Date equal to the
amount of interest not paid by check or wire transfer which is due on such
Interest Payment Date; such shares of Common Stock shall be freely transferable
by the Holders thereof, subject to any transfer restrictions contained in the
Company’s Restated Certificate of Incorporation.  The Company shall notify each of the Trustee
or the Paying Agent, as the case may be, and the Holders within five days prior
to an Interest Payment Date if the Company shall elect to pay such interest in
Common Stock on such Interest Payment Date and, in the case of payment in
Common Stock, the Company shall certify to the Trustee on such Interest Payment
Date the Market Value of the Common Stock as of the Close of business on the
Business Day immediately preceding such Interest Payment Date.  All interest will be computed on the basis of
a 360-day year of twelve 30-day months.


 


The Company shall pay interest in cash on overdue principal and on
overdue installments of interest (without regard to any applicable grace
periods and to the extent lawful) from time to time on demand at the rate borne
by the Notes plus 1% per annum.


 


2.             Method of
Payment.  The Company shall pay
interest on the Notes (except Defaulted Interest) to the Persons who are the
registered Holders at the close of business on the Regular Record Date
immediately preceding the Interest Payment Date even if the Notes are cancelled
on registration of transfer or registration of exchange after such Regular
Record Date. Holders must surrender Notes to a Paying Agent to collect
principal payments. The Company shall pay principal, premium, if any, and
interest at the office or agency maintained by the Company for such purpose under
the Indenture, in money (except as provided in paragraph 1 above) of the United
States that at the time of payment is legal tender for payment of public and
private debts (“U.S. Legal Tender”). However, the Company may pay interest by
its check payable in such U.S. Legal Tender. The Company may deliver any such
interest payment to the Paying Agent (and in case the Trustee shall then be
acting as Paying Agent, the Company shall deposit the aggregate amount of such
interest payment with the Trustee no later than 10:00 a.m., New York City time,
on such scheduled payment date, in immediately available funds and designated
for and sufficient to pay all interest on the Notes then due) or to a Holder at
the Holder’s registered address set forth in the Register.


 


3.             Paying Agent and
Registrar.  Initially, The Bank of
New York Trust Company, N.A., a national banking association, not in its
individual capacity but solely as trustee (the 


 

















 


“Trustee”), will act as Paying
Agent and Registrar. The Company may change any Paying Agent, Registrar or co-Registrar
without notice to the Holders.


 


4.             Indenture.  The Company issued the Notes under an
Indenture, dated as of February 1, 2006 (the “Indenture”), by and among
the Company, the Guarantor, and the Trustee. This Note is one of a duly
authorized issue of Notes of the Company designated as its 5% Senior
Convertible Notes due 2021.  Except as
provided in paragraph 1 above, the Notes are limited in aggregate principal
amount to $149,646,114.  Capitalized
terms herein are used as defined in the Indenture unless otherwise defined
herein. The terms of the Notes include those stated in the Indenture and those
made part of the Indenture by reference to the Trust Indenture Act of 1939 (15
U.S. Code §§ 77aaa—77bbbb) (the “TIA”), as in effect on the date of the
Indenture. Notwithstanding anything to the contrary herein, the Notes are
subject to all such terms, and Holders of Notes are referred to the Indenture
and the TIA for a statement of them. To the extent any provision of these Notes
conflicts with the express provisions of the Indenture, the provisions of the
Indenture shall govern and be controlling. The Notes are general unsecured
obligations of the Company.


 


5.             Optional
Redemption.  At any time on or after
February 1, 2011, the Notes will be redeemable, at the Company’s option, in
whole at any time or in part from time to time, as set forth below.


 


On or after February 1, 2011, the Notes will be subject to
redemption at 100% of the principal amount thereof plus accrued and unpaid
interest thereon to but not including the applicable Redemption Date.  The Company may elect to pay the Redemption
Price in Common Stock if the Common Stock has traded at no less than 125% of
the Conversion Price for the 60 consecutive Trading Days prior to the
Redemption Date.


 


Notwithstanding the foregoing, if the notice of redemption is mailed
prior to an Interest Payment Date but the Redemption Date falls after such
Interest Payment Date, then the applicable interest shall be paid on such
Interest Payment Date and the accrued and unpaid interest to the Redemption
Date shall be that interest accruing from such Interest Payment Date to but
excluding the Redemption Date.


 


6.             Notice of
Redemption.  Notice of redemption
shall be mailed not less than 30 days nor more than 60 days before the
Redemption Date to each Holder of Notes to be redeemed at such Holder’s
registered address set forth in the Register. Notes in denominations larger
than $1,000 may be redeemed in part.


 


Except as set forth in the Indenture, if monies for the redemption of
the Notes called for redemption shall have been deposited with the Paying Agent
for redemption on such Redemption Date, then, unless the Company defaults in
the payment of such Redemption Price plus accrued interest, if any, the Notes
called for redemption will cease to bear interest from and after such
Redemption Date and the only right of the Holders of such Notes will be to
receive payment of the Redemption Price plus accrued interest, if any.


 


7.             Mandatory
Redemption.  Section 10.8 of the
Indenture provides that, upon the occurrence of a Change in Ownership or a
Fundamental Change, and subject to further 


 

















 


limitations contained therein,
the Company will make an offer to purchase the Notes in accordance with the
procedures set forth in the Indenture.


 


8.             Repurchase of
Notes by the Company at Option of Holders on Specified Dates.  Subject to the terms and conditions of the
Indenture, the Company shall become obligated to repurchase, at the option of
the Holder, all of the Notes held by such Holder on February 1, 2011 and
February 1, 2016 at a Company Repurchase Price of 100% of the principal amount
thereof, plus any accrued and unpaid interest, if any, on such Notes to, but
excluding, the Company Repurchase Date. 
To exercise such right, a Holder shall deliver to the Trustee (or other
Paying Agent appointed by the Company) such Note with the form entitled “Form
of Company Repurchase Election” on the reverse thereof duly completed,
together with the Note, duly endorsed for transfer, at any time from the
opening of business on the date that is 20 Business Days prior to such Company
Repurchase Date until the close of business on the Business Day immediately
preceding the Company Repurchase Date, as set forth in the Indenture.


 


9.             Denominations;
Transfer; Exchange.  The Notes are in
registered form, without coupons, in denominations of $1,000 or any integral
multiple thereof.  A Holder shall
register the transfer of or exchange Notes in accordance with the Indenture.
The Registrar may require a Holder, among other things, to furnish appropriate
endorsements and transfer documents and to pay certain transfer taxes or
similar governmental charges payable in connection therewith as permitted by
the Indenture. The Registrar need not register the transfer of or exchange of
any Notes or portions thereof selected for redemption.


 


10.           Persons Deemed
Owners.  The registered Holder of a
Note shall be treated as the owner of it for all purposes.


 


11.           Unclaimed
Property.  If money or Common Stock
for the payment of principal or interest remains unclaimed for two years, the
Trustee and/or the Paying Agent will pay the money or deliver the Common Stock
back to the Company. After that, all liability of the Trustee and such Paying
Agent with respect to such money or Common Stock shall cease.


 


12.           Discharge Prior
to Redemption or Maturity.  If the
Company at any time deposits with the Trustee U.S. Legal Tender or Government
Obligations sufficient to pay the principal of and interest on the Notes to
redemption or Maturity and complies with the other provisions of the Indenture
relating thereto, the Company will be discharged from certain provisions of the
Indenture and the Notes (including certain covenants, but excluding its
obligation to pay the principal of and interest on the Notes).


 


13.           Amendment;
Supplement; Waiver.  Subject to
certain exceptions, the Indenture or the Notes may be amended or supplemented
with the written consent of the Holders of at least a majority in aggregate
principal amount of the Notes then Outstanding, and any existing Default or
Event of Default or noncompliance with any provision of the Indenture or the
Notes may be waived with the written consent of the Holders of a majority in
aggregate principal amount of the Notes then Outstanding.  Without notice to or consent of any Holder,
the parties thereto may amend or supplement the Indenture or the Notes to,
among other things, cure any ambiguity or correct or supplement any provision in
the Indenture which may be defective or inconsistent with any other provision
therein.


 

















 


14.           Restrictive
Covenants.  The Indenture imposes
certain limitations on the ability of the Company to, among other things, merge
or consolidate with any other Person, sell, transfer, convey or otherwise
dispose of all or substantially all of its property or assets.  Such limitations are subject to a number of
important qualifications and exceptions.


 


15.           Defaults and
Remedies.  Subject to certain
exceptions, if an Event of Default occurs and is continuing, the Trustee or the
Holders of at least 25% in aggregate principal amount of Notes then Outstanding
may declare all the Notes to be due and payable in the manner, at the time and
with the effect provided in the Indenture. Holders of Notes may not enforce the
Indenture or the Notes except as provided in the Indenture.  Subject to the terms of this Indenture, the
Trustee is not obligated to enforce the Indenture or the Notes unless it has
received indemnity reasonably satisfactory to it.  The Indenture permits, subject to certain
limitations therein provided, Holders of a majority in aggregate principal
amount of the Notes then Outstanding to direct the Trustee in its exercise of
any trust or power.  The Trustee may withhold
from Holders of Notes notice of any continuing Default or Event of Default
(except a Default in payment of principal or interest) in accordance with the
provisions of the Indenture if it determines that withholding notice is in
their interest.


 


16.           Conversion.  Subject to and upon compliance with the
provisions of the Indenture, prior to Stated Maturity, the Holder hereof has
the right, at its option, to convert the principal amount of its Note, or any
portion of such principal amount which is an integral multiple of $1,000, into
such number of shares of the Company’s Common Stock as is determined by the
Conversion Rate, as such shares shall be constituted at the date of conversion
and subject to adjustment from time to time as provided in the Indenture, upon
surrender of this Note with the form entitled “Form of Conversion Notice” on
the reverse hereof duly completed, to the Company at the office or agency of
the Company maintained for that purpose in accordance with the terms of the
Indenture or, at the option of such holder, the Corporate Trust Office, and,
unless the shares issuable on conversion are to be issued in the same name as
this Note, duly endorsed by, or accompanied by instruments of transfer in form
satisfactory to the Company duly executed by, the holder or by its duly authorized
attorney.  The Conversion Price means
125% of the Last Reported Sales Prices for the 60 consecutive Trading Days
following February 1, 2006, rounded to the nearest cent.


 


If the Company (i) is a party to a consolidation, merger, binding share
exchange or combination, (ii) reclassifies the Common Stock or (iii) sells or
conveys its properties and assets substantially as an entirety to any Person,
the right to convert a Note into shares of Common Stock may be changed into a
right to convert it into securities, cash or other assets of the Company or
such other Person, in each case in accordance with the Indenture.


 


No adjustment in respect of interest on any Note converted or dividends
on any shares issued upon conversion of such Note will be made upon any conversion
except as set forth in the next sentence. 
If this Note (or portion hereof) is surrendered for conversion during
the period from the close of business on any record date for the payment of
interest to the close of business on the Business Day preceding the following
Interest Payment Date and has not been called for redemption by the Company on
a Redemption Date that occurs during such period, this Note (or portion hereof
being converted) must be accompanied by payment, in immediately available funds
or other funds acceptable to the Company, of an amount equal to the interest
otherwise 


 

















 


payable on such Interest
Payment Date on the principal amount being converted; provided that no
such payment shall be required (1) if the Company has specified a Redemption
Date that is after a record date and prior to the next Interest Payment Date,
(2) if the Company has specified a Repurchase Date following a Change in
Ownership or Fundamental Change that is during such period or (3) to the extent
of any overdue interest, if any overdue interest exists at the time of
conversion with respect to such Note.


 


No fractional shares will be issued upon any conversion, but an
adjustment and payment in cash will be made, as provided in the Indenture, in
respect of any fraction of a share which would otherwise be issuable upon the
surrender of any Note or Notes for conversion.


 


A Note in respect of which a holder is exercising its right to require
repurchase upon a Change in Ownership or Fundamental Change or repurchase on a
Repurchase Date may be converted only if such holder withdraws its election to
exercise such right in accordance with the terms of the Indenture.


 


Any Notes called for redemption, unless surrendered for conversion by
the Holders thereof on or before the close of business on the second Business
Day preceding the Redemption Date, may be deemed to be redeemed from the
holders of such Notes for an amount equal to the applicable Redemption Price by
one or more investment banks or other purchasers who may agree with the Company
(i) to purchase such Notes from the holders thereof and convert them into
shares of the Company’s Common Stock and (ii) to make payment for such Notes as
aforesaid to the Trustee in trust for the Holders.


 


17.           Trustee Dealings
with Company.  The Trustee under the
Indenture, in its individual or any other capacity, may become the owner or
pledgee of Notes and may otherwise deal with the Company, its Subsidiaries or
their respective Affiliates as if it were not the Trustee.


 


18.           No Recourse
Against Others.  No stockholder,
director, officer, employee or incorporator, as such, of the Company or the
Guarantor shall have any liability for any obligation of the Company or the
Guarantor under the Notes, the Note Guarantee or the Indenture or for any claim
based on, in respect of or by reason of, such obligations or their creation.
Each Holder of a Note by accepting a Note waives and releases all such
liability. The waiver and release are part of the consideration for the
issuance of the Notes.


 


19.           Authentication.  This Note shall not be valid until the
Trustee or Authenticating Agent manually signs the certificate of
authentication on this Note.


 


20.           Governing Law.
The laws of the State of New York shall govern this Note and the Indenture,
without regard to principles of conflicts of law.


 


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


 


22.           CUSIP Numbers.  Pursuant to a recommendation promulgated by
the Committee on Uniform Security Identification Procedures, the Company has
caused CUSIP numbers to be 


 

















 


printed on the Notes as a
convenience to the Holders of the Notes. No representation is made as to the
accuracy of such numbers as printed on the Notes and reliance may be placed
only on the other identification numbers printed hereon.


 


23.           Indenture.  Each Holder, by accepting a Note, agrees to
be bound by all of the terms and provisions of the Indenture, as the same may
be amended from time to time.


 


24.           Guarantee.  The Guarantor has unconditionally guaranteed,
to the extent set forth in the Indenture, the due and punctual payment of the
principal of, premium, if any, and interest on the Notes when due, whether at
Stated Maturity, by acceleration, redemption, repurchase at the option of the
Holders or otherwise, and interest on the overdue principal of and interest on
the Notes, if any, if lawful, and all other obligations of the Company to the
Holders or the Trustee under the Indenture and the Notes.


 


The Company will furnish to any Holder of a Note upon written request
and without charge a copy of the Indenture, which has the text of this Note in
larger type. Requests may be made to: UAL Corporation, P.O. Box 66919, Chicago,
Illinois 60666, Attn:  Treasurer.


 

















 


ASSIGNMENT FORM


 


If you the Holder want to assign this Note, fill in the form below and
have your signature guaranteed:


 


	
  I or we assign and transfer this Note to:

  
	
   

  
	
   

  
	
   

  
	
   

  
	
  (Print or type name, address and zip code and social security or tax
  ID number of assignee)

  



 


	
  and irrevocably appoint 

  	
   

  	
  , agent to transfer this Note on the books of the Company. 

  
	
  The agent may substitute another to act for him.

  



 


	
  Dated:

  	
   

  	
   

  	
   

  	
  Signed:

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
  (Sign exactly as name appears on the other side of this Note)

  



 


	
  Signature Guarantee:

  	
   

  



 

















 


(OPTION OF HOLDER TO ELECT REDEMPTION)


 


If you want to elect to have this Note purchased by the Company
pursuant to Section 10.8 of the Indenture, check the box below:


 




	
   

  






 


If you want to elect to have only part of this Note purchased by the
Company pursuant to Section 10.8 of the Indenture, state the amount you elect
to have purchased:


 


	
  $

  	
   

  



 


	
  Dated:

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  NOTICE:

  	
  The signature on this assignment must correspond with the name as it
  appears upon the face of the within Note in every particular without
  alteration or enlargement or any change whatsoever and be guaranteed by the
  endorser’s bank or broker.

  



 


	
  Signature Guarantee:

  	
   

  



 

















 


FORM OF

COMPANY REPURCHASE ELECTION


 


	
  TO:

  	
   

  	
  UAL CORPORATION

  
	
   

  	
   

  	
  [TRUSTEE]

  



 


The undersigned registered owner of this Note hereby irrevocably
acknowledges receipt of a notice from UAL Corporation (the “Company”) regarding
the right of holders to elect to require the Company to repurchase the Notes
and requests and instructs the Company to repay the entire principal amount of
this Note, or the portion thereof (which is $1,000 or a multiple thereof) below
designated, in accordance with the terms of the Indenture at the price of 100%
of such entire principal amount or portion thereof, together with accrued and
unpaid interest to, but excluding, the Company Repurchase Date, to the
registered holder hereof unless a different name has been indicated below.  Capitalized terms used herein but not defined
herein shall have the meanings ascribed to such terms in the Indenture.  The Notes shall be repurchased by the Company
as of the Company Repurchase Date pursuant to the terms and conditions
specified in the Indenture.  If shares of
Common Stock or any portion of the principal amount of this Note is to be
issued or paid, as applicable, to a person other than the undersigned, the undersigned
will provide the appropriate information below and pay all transfer taxes
payable with respect thereto.  If the
Company elects to pay the Company Repurchase Price, in whole or in part, in
shares of Common Stock but such portion of the Company Repurchase Price shall
ultimately be paid to such Holder entirely in cash because any of the
conditions to payment of the Company Repurchase Price in shares of Common Stock
is not satisfied prior to the close of business on the Business Day immediately
preceding the Company Repurchase Date, the undersigned registered owner elects:


 


o            to withdraw this Company Repurchase
Election as to
$                    
principal amount of the Notes to which this Company Repurchase Election relates
(Certificate Numbers:                                                                                          ),
or


 


o            to receive cash in respect of
$                              
principal amount of the Notes to which this Company Repurchase Election
relates.


 


	
  Dated:

  	
   

  



 


	
   

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
    Signature(s)

  



 

















 


NOTICE:  The above signatures of
the holder(s) hereof must correspond with the name as written upon the face of
the Note in every particular without alteration or enlargement or any change
whatever.


 


	
  Note Certificate Number (if applicable):

  
	
   

  
	
   

  
	
  Principal amount to be repurchased (if less than all):

  
	
   

  
	
   

  
	
  Social Security or Other Taxpayer Identification Number:

  
	
   

  
	
   

  



 

















 


FORM OF

CONVERSION NOTICE


 


TO:         UAL CORPORATION

[Conversion Agent]


 


The
undersigned registered owner of this Note hereby irrevocably exercises the
option to convert this Note, or the portion thereof (which is $1,000 or a
multiple thereof) below designated, into shares of Common Stock of UAL
CORPORATION, in accordance with the terms of the Indenture referred to in this
Note, and requests and instructs the Company to issue and deliver to the
undersigned registered owner (unless a different name has been indicated below)
the shares of Common Stock issuable and deliverable upon such conversion
(and/or, should the Company elect to deliver cash, or a combination of cash and
Common Stock in lieu thereof, a check for the cash amount payable), together
with (i) any Notes representing any unconverted principal amount hereof and
(ii) any check in payment for interest, if any, and fractional shares.  Capitalized terms used herein but not defined
herein shall have the meanings ascribed to such terms in the Indenture.  If shares of Common Stock or any portion of the
principal amount of this Note not converted are to be issued in the name of a
Person other than the undersigned, the undersigned will provide the appropriate
information below and pay all transfer taxes payable with respect thereto.


 


	
  Dated:

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  Signature(s)

  



 

















 


Signature(s) must be guaranteed by an “eligible guarantor institution” meeting the requirements of
the Note Registrar, which requirements include membership or participation in
the Security Transfer Agent Medallion Program (“STAMP”) or such other “signature
guarantee program” as may be determined by the Note Registrar in
addition to, or in substitution for, STAMP, all in accordance with the
Securities Exchange Act of 1934, as amended.


 


	
   

  	
   

  
	
   

  	
  Signature Guarantee

  



 


NOTICE:  The above signatures of
the holder(s) hereof must correspond with the name as written upon the face of
the Note in every particular without alteration or enlargement or any change
whatsoever.


 


Fill in the registration of shares of Common Stock if to be issued, and
Notes if to be delivered, other than to and in the name of the registered
holder:


 


	
   

  	
   

  
	
  (Name)

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
  (Street Address)

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
  (City, State and Zip Code)

  
	
   

  	
   

  
	
   

  	
   

  
	
  Please print name and address

  
	
   

  	
   

  
	
   

  	
   

  
	
  Principal amount to be converted

  
	
  (if less than all):

  	
   

  
	
   

  	
   

  
	
  $

  	
   

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
  Social Security or Other Taxpayer

  
	
  Identification Number:

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
			



 

















 


EXHIBIT B


 


[FORM OF NOTATION OF GUARANTEE]


 


For value received, the Guarantor (which term includes any successor
Person under the Indenture) has unconditionally guaranteed, to the extent set
forth in the Indenture (the “Indenture”) among UAL Corporation (the “Company”),
the Guarantor and
                                ,
as trustee (the “Trustee”), (a) the due and punctual payment of the principal
of, premium, if any, and interest on the Notes (as defined in the Indenture),
whether at maturity, by acceleration, redemption or otherwise, the due and
punctual payment of interest on overdue principal of and interest on the Notes,
if any, if lawful, and the due and punctual performance of all other
obligations of the Company to the Holders or the Trustee all in accordance with
the terms of the Indenture and (b) in case of any extension of time of payment
or renewal of any Notes or any of such other obligations, that the same will be
promptly paid in full when due or performed in accordance with the terms of the
extension or renewal, whether at stated maturity, by acceleration or
otherwise.  The obligations of the
Guarantor to the Holders of Notes and to the Trustee pursuant to the Note
Guarantee and the Indenture are expressly set forth in Article 11 of the
Indenture and reference is hereby made to the Indenture for the precise terms
of the Note Guarantee.  Each Holder of a
Note, by accepting the same (a) agreed to and shall be bound by such
provisions and (b) appoints the Trustee attorney-in-fact of such
Holder for such purpose.


 


	
   

  	
  UNITED AIR LINES, INC.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
  Name:

  
	
   

  	
  Title: