Exhibit 4.1


 




 





 


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 July 25, 2006


 















 




Providing for Issuance of

4.50% Senior Limited-Subordination Convertible Notes due 2021






 





 





















 


Reconciliation
and tie between Indenture, dated as of July 25, 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)

  	
   

  	
   

  	
  5.7

  
	
   

  	
  (b)

  	
   

  	
   

  	
  5.9; 5.10

  
	
   

  	
  (c)

  	
   

  	
   

  	
  1.4; TIA

  






 


i





















 




	
  Trust Indenture Act of 1939 Section

  	
   

  	
  Indenture Section

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  317

  	
  (a)(1)

  	
   

  	
   

  	
  5.3; 6.3

  
	
   

  	
  (a)(2)

  	
   

  	
   

  	
  5.4; 6.3

  
	
   

  	
  (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


 


	
  ARTICLE 1 Definitions and Other Provisions of General
  Application

  	
  1

  
	
  Section 1.1.

  	
  Definitions.

  	
  1

  
	
  Section 1.2.

  	
  Compliance
  Certificates and Opinions

  	
  12

  
	
  Section 1.3.

  	
  Form
  of Documents Delivered to Trustee

  	
  12

  
	
  Section 1.4.

  	
  Acts
  of Holders

  	
  13

  
	
  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

  	
  16

  
	
  Section 1.13.

  	
  Trustee
  to Establish Record Dates

  	
  16

  
	
  Section 1.14.

  	
  Rights
  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

  	
  22

  
	
  Section 3.1.

  	
  Aggregate
  Amounts; Issuance

  	
  22

  
	
  Section 3.2.

  	
  Denominations

  	
  22

  
	
  Section 3.3.

  	
  Execution,
  Authentication, Delivery and Dating

  	
  22

  
	
  Section 3.4.

  	
  Temporary
  Notes

  	
  24

  
	
  Section 3.5.

  	
  Registration,
  Registration of Transfer and Exchange

  	
  24

  
	
  Section 3.6.

  	
  Replacement
  Notes

  	
  26

  
	
  Section 3.7.

  	
  Payment
  of Interest; Interest Rights Preserved

  	
  27

  
	
  Section 3.8.

  	
  Persons
  Deemed Owners

  	
  29

  
	
  Section 3.9.

  	
  Cancellation

  	
  29

  
	
  Section 3.10.

  	
  Computation
  of Interest

  	
  29

  
	
  Section 3.11.

  	
  CUSIP
  Numbers

  	
  29

  
	
  Section 3.12.

  	
  Transfers
  of Transfer-Restricted Notes

  	
  30

  
	
  Section 3.13.

  	
  Form
  of Certificate To Be Delivered in Connection with Transfers to Institutional
  Accredited Investors.

  	
  30

  
	
  Section 3.14.

  	
  Issuance,
  Transfer and Exchange of Common Stock Issuable Upon Conversion of,or in payment of interest in respect of,
  the Notes

  	
  32

  



 


iii

















 


	
  ARTICLE 4 Satisfaction, Discharge and Defeasance

  	
  33

  
	
  Section 4.1.

  	
  Termination
  of Company’s Obligations Under the Indenture

  	
  33

  
	
  Section 4.2.

  	
  Application
  of Trust Funds

  	
  34

  
	
  Section 4.3.

  	
  Company’s
  Option to Effect Defeasance or Covenant Defeasance

  	
  34

  
	
  Section 4.4.

  	
  Defeasance
  and Discharge

  	
  34

  
	
  Section 4.5.

  	
  Covenant
  Defeasance

  	
  35

  
	
  Section 4.6.

  	
  Conditions
  to Defeasance or Covenant Defeasance

  	
  35

  
	
  Section 4.7.

  	
  Deposited
  Money and Government Obligations to Be Held in Trust

  	
  37

  
	
  Section 4.8.

  	
  Reinstatement

  	
  37

  
	
   

  	
   

  	
   

  
	
  ARTICLE 5 Defaults and Remedies

  	
  37

  
	
  Section 5.1.

  	
  Events
  of Default

  	
  37

  
	
  Section 5.2.

  	
  Acceleration;
  Rescission and Annulment

  	
  39

  
	
  Section 5.3.

  	
  Collection
  of Indebtedness and Suits for Enforcement by Trustee

  	
  39

  
	
  Section 5.4.

  	
  Trustee
  May File Proofs of Claim

  	
  40

  
	
  Section 5.5.

  	
  Trustee
  May Enforce Claims Without Possession of Notes

  	
  41

  
	
  Section 5.6.

  	
  Delay
  or Omission Not Waiver

  	
  41

  
	
  Section 5.7.

  	
  Waiver
  of Past Defaults

  	
  41

  
	
  Section 5.8.

  	
  Control
  by Majority

  	
  41

  
	
  Section 5.9.

  	
  Limitation
  on Suits by Holders

  	
  41

  
	
  Section 5.10.

  	
  Rights
  of Holders to Receive Payment and to Convert

  	
  42

  
	
  Section 5.11.

  	
  Application
  of Money Collected

  	
  42

  
	
  Section 5.12.

  	
  Restoration
  of Rights and Remedies

  	
  43

  
	
  Section 5.13.

  	
  Rights
  and Remedies Cumulative

  	
  43

  
	
  Section 5.14.

  	
  Undertaking
  for Costs

  	
  43

  
	
  Section 5.15.

  	
  Waiver
  of Stay or Extension Laws

  	
  43

  
	
   

  	
   

  	
   

  
	
  ARTICLE 6 The Trustee

  	
  44

  
	
  Section 6.1.

  	
  Certain
  Duties and Responsibilities

  	
  44

  
	
  Section 6.2.

  	
  Notice
  of Defaults

  	
  45

  
	
  Section 6.3.

  	
  Rights
  of Trustee

  	
  45

  
	
  Section 6.4.

  	
  Trustee
  May Hold Notes

  	
  46

  
	
  Section 6.5.

  	
  Money
  Held in Trust

  	
  46

  
	
  Section 6.6.

  	
  Trustee’s
  Disclaimer

  	
  46

  
	
  Section 6.7.

  	
  Reports
  by Trustee to the Holders

  	
  46

  
	
  Section 6.8.

  	
  Securityholder
  Lists

  	
  46

  
	
  Section 6.9.

  	
  Compensation
  and Indemnity

  	
  47

  
	
  Section 6.10.

  	
  Replacement
  of Trustee

  	
  48

  
	
  Section 6.11.

  	
  Acceptance
  of Appointment by Successor

  	
  49

  
	
  Section 6.12.

  	
  Disqualification;
  Eligibility

  	
  50

  
	
  Section 6.13.

  	
  Merger,
  Conversion, Consolidation or Succession to Business

  	
  50

  
	
  Section 6.14.

  	
  Appointment
  of Authenticating Agent

  	
  50

  
	
  Section 6.15.

  	
  Trustee’s
  Application for Instructions from the Company

  	
  52

  
	
  Section 6.16.

  	
  Preferential
  Collection of Claims Against Company

  	
  52

  



 


iv

















 


	
  ARTICLE 7 Consolidation, Merger or Sale by the Company

  	
  52

  
	
  Section 7.1.

  	
  Consolidation,
  Merger or Sale of Assets Only on Certain Terms

  	
  52

  
	
   

  	
   

  	
   

  
	
  ARTICLE 8 Supplemental Indentures

  	
  53

  
	
  Section 8.1.

  	
  Supplemental
  Indentures Without Consent of Holders

  	
  53

  
	
  Section 8.2.

  	
  With
  Consent of Holders

  	
  54

  
	
  Section 8.3.

  	
  Compliance
  with Trust Indenture Act

  	
  55

  
	
  Section 8.4.

  	
  Execution
  of Supplemental Indentures

  	
  55

  
	
  Section 8.5.

  	
  Effect
  of Supplemental Indentures

  	
  55

  
	
  Section 8.6.

  	
  Reference
  in Notes to Supplemental Indentures

  	
  56

  
	
  Section 8.7.

  	
  Notice

  	
  56

  
	
   

  	
   

  	
   

  
	
  ARTICLE 9 Covenants

  	
  56

  
	
  Section 9.1.

  	
  Payment
  of Principal, Premium, if any, and Interest

  	
  56

  
	
  Section 9.2.

  	
  Maintenance
  of Office or Agency

  	
  56

  
	
  Section 9.3.

  	
  Money
  for Notes to Be Held in Trust; Unclaimed Property

  	
  57

  
	
  Section 9.4.

  	
  Corporate
  Existence

  	
  58

  
	
  Section 9.5.

  	
  Reports
  by the Company

  	
  58

  
	
  Section 9.6.

  	
  Notice
  of Default

  	
  59

  
	
  Section 9.7.

  	
  Provision
  of Financial Statements

  	
  59

  
	
  Section 9.8.

  	
  Compliance
  Certificates

  	
  59

  
	
  Section 9.9.

  	
  Further
  Instruments and Acts

  	
  59

  
	
  Section 9.10.

  	
  Payments
  for Consents

  	
  59

  
	
  Section 9.11.

  	
  Changes
  in Organization Documents

  	
  60

  
	
  Section 9.12.

  	
  Affiliate
  Transactions

  	
  60

  
	
   

  	
   

  	
   

  
	
  ARTICLE 10 Redemption and Repurchase

  	
  61

  
	
  Section 10.1.

  	
  Election
  to Redeem; Notice to Trustee

  	
  61

  
	
  Section 10.2.

  	
  Selection
  of Notes to Be Redeemed

  	
  61

  
	
  Section 10.3.

  	
  Notice
  of Redemption or Offer to Redeem

  	
  61

  
	
  Section 10.4.

  	
  Deposit
  of Redemption Price

  	
  63

  
	
  Section 10.5.

  	
  Notes
  Payable on Redemption Date

  	
  64

  
	
  Section 10.6.

  	
  Notes
  Redeemed in Part

  	
  64

  
	
  Section 10.7.

  	
  Optional
  Redemption

  	
  64

  
	
  Section 10.8.

  	
  Mandatory
  Redemption

  	
  65

  
	
  Section 10.9.

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

  	
  65

  
	
  Section 10.10.

  	
  Conversion
  Arrangement on Call for Redemption

  	
  68

  
	
  Section 10.11.

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

  	
  68

  
	
  Section 10.12.

  	
  Conditions
  and Procedures for Repurchase at Option of Holders

  	
  70

  
	
   

  	
   

  	
   

  
	
  ARTICLE 11 Note Guarantee

  	
  73

  
	
  Section 11.1.

  	
  Guarantee

  	
  73

  
	
  Section 11.2.

  	
  Limitation
  on Guarantor Liability

  	
  74

  
	
  Section 11.3.

  	
  Execution
  and Delivery of a Note Guarantee

  	
  74

  
	
  Section 11.4.

  	
  Guarantor
  May Consolidate, etc., on Certain Terms

  	
  75

  



 


v

















 


	
  ARTICLE 12 Conversion of Notes

  	
  75

  
	
  Section 12.1.

  	
  Right
  to Convert

  	
  75

  
	
  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

  	
  76

  
	
  Section 12.3.

  	
  Cash
  Payments in Lieu of Fractional Shares

  	
  77

  
	
  Section 12.4.

  	
  Conversion
  Rate

  	
  77

  
	
  Section 12.5.

  	
  Adjustment
  of Conversion Rate

  	
  77

  
	
  Section 12.6.

  	
  Effect
  of Reclassification, Consolidation, Merger or Sale

  	
  77

  
	
  Section 12.7.

  	
  Taxes
  on Shares Issued

  	
  77

  
	
  Section 12.8.

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

  	
  77

  
	
  Section 12.9.

  	
  Responsibility
  of Trustee

  	
  77

  
	
  Section 12.10.

  	
  Notice
  to Holders Prior to Certain Actions

  	
  77

  



 


Exhibits


 


	
  Exhibit A

  	
  Form
  of 4.50% Senior Limited-Subordination Convertible Note

  	
   

  
	
  Exhibit B

  	
  Form
  of Notation of Guarantee

  	
   

  
	
  Exhibit C

  	
  Form
  of Transfer Certificate for Transfer of Restricted Common Stock

  	
   

  



 


vi

















 


INDENTURE,
dated as of July 25, 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,
including the Guarantor, filed a Second Amended Joint Plan of Reorganization
(the “Plan”) which was approved by the Bankruptcy Court on January 20, 2006.


 


Pursuant
to the Plan, the Company and the Guarantor are issuing the 4.50% Senior
Limited-Subordination Convertible Notes (the “Notes”) and the Note Guarantee
(as defined herein) to trusts established
for the benefit of certain members of certain labor unions and employee groups.


 


The
Company has duly authorized the issuance of the Notes and the Guarantor has
duly authorized the Note Guarantee, and to provide therefor, the Company and
the Guarantor have 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, to make the Note Guarantee a valid obligation of
the Guarantor and to make this Indenture a valid agreement of the Company and
the Guarantor, 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 (as hereinafter defined) of the Notes:


 


ARTICLE 1


 


Definitions and Other
Provisions

of General Application


 


Section 1.1.            Definitions.


 


(a)           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.


 


“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.


 


“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.


 


2

















 


“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, becoming 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
Price” means U.S. $1,000 divided by the Conversion Rate (rounded to the
nearest cent).


 


“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.


 


3

















 


“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.


 


“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.


 


“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 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.


 


“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


 


4

















 


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.


 


“IAI”
means an institutional accredited investor (as defined in Rules 501(a)(1), (2),
(3) and (7) under the Securities Act) that is not a QIB.


 


“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 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 Company 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 Company 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 Company 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:


 


5

















 


(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 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.


 


“Notice
of Restricted Transfer” means written notice by a Holder to the Company
stating that it has resold Notes in a private transaction, or by the party
purchasing such Notes, and requesting that such Notes be considered
Transfer-Restricted Notes.


 


“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.


 


6

















 


“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.


 


“O’Hare
Notes” means $149,646,114 aggregate principal amount of the Company’s 5%
Senior Convertible Notes due 2021 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, to certain Persons (or certain holders for
whom such Persons act as trustee) that are party to that certain Settlement
Agreement, dated as of December 17, 2004, with the Guarantor attached to that
certain order dated February 15, 2005 entered by the Bankruptcy Court, relating
to the resolution of disputes between the Guarantor and such other parties
arising out of bonds issued in respect of the Guarantor’s facilities at Chicago
O’Hare International Airport.


 


“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;


 


(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;


 


7

















 


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.


 


“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.


 


“QIB”
means any “qualified institutional buyer” (as defined in Rule 144A under the
Securities Act).


 


“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.


 


8

















 


“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.


 


“Registration
Rights Agreement” means any registration rights agreement into which the
Company and the Guarantor enter relating to the Notes or shares of Common Stock
deliverable in respect thereof that the Company notifies the Trustee is to be
considered a “Registration Rights Agreement” as referred to in the Indenture.


 


“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.


 


“Resale
Restriction Termination Date” means the day immediately following
expiration of the “Effectiveness Period” as that term is defined in any
Registration Rights Agreement.


 


“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
Act” means the U.S. Securities Act of 1933, as amended from time to time.


 


“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 June 30, 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 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).


 


9

















 


“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)

  
	
  “Additional
  Interest”

  	
   

  	
  Section
  3.7(d)

  
	
  “Additional
  Interest Notice”

  	
   

  	
  Section
  3.7(d)

  
	
  “Adjustment
  Event”

  	
   

  	
  Section
  12.5(l)

  
	
  “Cash
  Amount”

  	
   

  	
  Section
  12.2(h)(iii)

  
	
  “Cash
  Conversion Value”

  	
   

  	
  Section
  12.2(h)(ii)

  
	
  “Cash
  Settlement Averaging Period”

  	
   

  	
  Section
  12.2(h)(ii)(B)

  






 


10

















 




	
  “Cash
  Settlement Notice Period”

  	
   

  	
  Section
  12.2(g)(i)

  
	
  “Co-Branded
  Card Agreement”

  	
   

  	
  Section
  1.14

  
	
  “Company
  Repurchase Date”

  	
   

  	
  Section
  10.9(a)

  
	
  “Company
  Repurchase Election”

  	
   

  	
  Section
  10.9(c)

  
	
  “Company
  Repurchase Notice”

  	
   

  	
  Section
  10.9(b)

  
	
  “Company
  Repurchase Price”

  	
   

  	
  Section 10.9(a)

  
	
  “Conversion
  Date”

  	
   

  	
  Section 12.2(c)

  
	
  “Conversion
  Notice”

  	
   

  	
  Section 12.2(a)

  
	
  “Conversion
  Obligation”

  	
   

  	
  Section 12.2(g)(i)

  
	
  “Conversion
  Rate”

  	
   

  	
  Section 12.4

  
	
  “Conversion
  Retraction Period”

  	
   

  	
  Section 12.2(g)(i)

  
	
  “covenant defeasance”

  	
   

  	
  Section 4.5

  
	
  “CUSIP”

  	
   

  	
  Section
  3.11

  
	
  “Defaulted
  Interest”

  	
   

  	
  Section
  3.7(a)

  
	
  “defeasance”

  	
   

  	
  Section
  4.4

  
	
  “Delivery
  Date”

  	
   

  	
  Section 10.4

  
	
  “Determination
  Date”

  	
   

  	
  Section
  12.5(l)

  
	
  “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)

  
	
  “Redemption
  Notice”

  	
   

  	
  Section 10.3

  
	
  “Register”

  	
   

  	
  Section 3.5

  
	
  “Registrar”

  	
   

  	
  Section 3.5

  
	
  “Restricted
  Note Legend”

  	
   

  	
  Section 2.5(b)

  
	
  “Restricted
  Stock Legend”

  	
   

  	
  Section 2.5(c)

  
	
  “spin-off”.

  	
   

  	
  Section
  12.5(c)

  
	
  “Transfer-Restricted
  Notes”

  	
   

  	
  Section
  2.5(b)

  
	
  “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


 


11

















 


“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.


 


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.


 


12

















 


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 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


 


13

















 


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 made by any Person in respect of any such Act,
or, in the case of any such vote, prior to such vote, the record 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 given
as provided herein. In any case


 


14

















 


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 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.


 


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


 


15

















 


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 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.          Rights
Relative to Other Notes.  The
Notes and the Note Guarantee shall be junior in right of payment upon
liquidation or dissolution of the obligor thereunder to the PBGC 6% Senior
Notes and the O’Hare Notes and the Guarantor’s guarantee thereof. The Notes and
the Note Guarantee shall be pari passu
in right of payment to the PBGC 8% Contingent Notes and the Guarantor’s
guarantee thereof, respectively. Except as otherwise provided above, the Notes
and the Note Guarantee shall be pari passu
in right of payment with all current and future senior unsecured debt of the
obligor thereunder and senior in right of payment to all current and future
subordinated debt of the obligor thereunder.


 


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
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 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,


 


16

















 


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 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.


 


17

















 


	
   

  	
  THE
  BANK OF NEW YORK TRUST COMPANY,

  N.A., not in its individual capacity but solely as

  Trustee,

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Authorized
  Signatory

  



 


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 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


 


18

















 


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.”


 


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


 


(a)           The Notes, whether or not they are
Transfer-Restricted 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.”


 


(b)           Every Note that bears or is required
under this Section 2.5(b) to bear the legend set forth in this Section 2.5(b)
(the “Transfer-Restricted Notes”) shall be subject to the restrictions on
transfer set forth in this Section 2.5(b) (including those set forth in the
legend set forth below), and the Holder of each such Transfer-Restricted Note,
by such Holder’s acceptance thereof, agrees to be bound by all such
restrictions on transfer. As used in Sections 2.5(b) and 2.5(c), the term “transfer”
includes any sale, pledge, transfer or other disposition whatsoever of any
Transfer-Restricted Note. The Registrar shall not register any transfer of a
Transfer-Restricted Note not made in accordance with the restrictions on
transfer set forth in this Section 2.5.


 


Subject
to the last paragraph of this Section 2.5(b) and Section 3.14 with respect to
Common Stock, following the Company’s receipt of a Notice of Restricted
Transfer in respect of any Note, until Resale Restriction Termination Date, any
certificate evidencing any such Note (and all securities issued in exchange
therefor or substitution thereof, including Common Stock, if any, issued upon
conversion thereof, or in payment of interest in respect thereof, which shall
bear the legend set forth in Section 2.5(c), if applicable), shall bear a
legend in substantially the following form:


 


“THIS
SECURITY AND ANY COMMON STOCK ISSUABLE UPON THE CONVERSION OF, OR IN PAYMENT OF
INTEREST IN RESPECT OF, THIS SECURITY HAVE NOT BEEN REGISTERED UNDER THE U.S.
SECURITIES ACT OF 1933, AS AMENDED (THE


 


19

















 


‘SECURITIES
ACT’), AND MAY NOT BE SOLD OR OTHERWISE TRANSFERRED IN THE ABSENCE OF SUCH
REGISTRATION OR AN APPLICABLE EXEMPTION THEREFROM. EACH PURCHASER OF THIS
SECURITY IS HEREBY NOTIFIED THAT THE SELLER OF THIS SECURITY MAY BE RELYING ON
THE EXEMPTION FROM THE PROVISIONS OF SECTION 5 OF THE SECURITIES ACT PROVIDED
BY RULE 144A THEREUNDER.


 


THE
HOLDER OF THIS SECURITY WILL, AND EACH SUBSEQUENT HOLDER IS REQUIRED TO, NOTIFY
ANY PURCHASER OF THE SECURITY FROM IT OF THE RESALE RESTRICTIONS REFERRED TO
ABOVE.


 


THIS
SECURITY AND ANY COMMON STOCK ISSUABLE UPON THE CONVERSION OF, OR IN PAYMENT OF
INTEREST IN RESPECT OF, THIS SECURITY MAY NOT BE OFFERED, SOLD, PLEDGED OR
OTHERWISE TRANSFERRED EXCEPT (A) (1) TO A PERSON WHO THE TRANSFEROR REASONABLY
BELIEVES IS A QUALIFIED INSTITUTIONAL BUYER WITHIN THE MEANING OF RULE 144A
UNDER THE SECURITIES ACT ACQUIRING FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF A
QUALIFIED INSTITUTIONAL BUYER IN A TRANSACTION MEETING THE REQUIREMENTS OF RULE
144A, (2) PURSUANT TO AN EXEMPTION FROM REGISTRATION UNDER THE SECURITIES ACT
PROVIDED BY RULE 144 THEREUNDER (IF AVAILABLE), (3) TO AN INSTITUTIONAL
INVESTOR THAT IS AN ACCREDITED INVESTOR WITHIN THE MEANING OF RULE 501(a)(1),
(2), (3) OR (7) OF REGULATION D UNDER THE SECURITIES ACT PURSUANT TO AN
EXEMPTION FROM REGISTRATION UNDER THE SECURITIES ACT (IF AVAILABLE) OR (4)
PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT, AND
(B) IN ACCORDANCE WITH ALL APPLICABLE SECURITIES LAWS OF THE STATES OF THE
UNITED STATES AND OTHER JURISDICTIONS.”


 


Any
Note (or security issued in exchange or substitution therefor) as to which such
restrictions on transfer shall have expired in accordance with their terms or
that has been transferred pursuant to a registration statement that has been
declared effective under the Securities Act may, upon surrender of such Note to
the Registrar for exchange in accordance with the provisions of this Section
2.5, be exchanged for a new Note or Notes, of like tenor and aggregate
principal amount, which shall not bear the Restricted Note Legend required by
this Section 2.5(b).


 


(c)           Every stock certificate representing
Common Stock issued upon conversion of, or in payment of interest in respect
of, a Transfer-Restricted Note that bears or is required under this Section
2.5(c) to bear the legend set forth in this Section 2.5(c) shall be subject to
the restrictions on transfer set forth in this Section 2.5(c) (including those
set forth in the legend set


 


20

















 


forth below), and the Holder of
such Common Stock issued upon conversion of, or in payment of interest in
respect of, a Transfer-Restricted Note, by such Holder’s acceptance thereof,
agrees to be bound by all such restrictions on transfer and the further
restrictions set forth in Section 3.14. The Company shall not register any
transfer of Common Stock issued upon conversion of, or in payment of interest
in respect of, such a Transfer-Restricted Note not made in accordance with the
restrictions on transfer set forth in this Section 2.5.


 


Until
the Resale Restriction Termination Date, any stock certificate representing
Common Stock issued upon conversion of, or in payment of interest in respect
of, a Transfer-Restricted Note shall bear a legend in substantially the
following form, unless such Common Stock has been sold pursuant to a
registration statement that has been declared effective under the Securities
Act (and which continues to be effective at the time of such transfer) or such
Common Stock has been issued upon conversion of, or in payment of interest in
respect of, Notes that have been transferred pursuant to a registration
statement that has been declared effective under the Securities Act:


 


“THIS
SECURITY (OR ITS PREDECESSOR) WAS ORIGINALLY ISSUED IN A TRANSACTION EXEMPT
FROM REGISTRATION UNDER THE U.S. SECURITIES ACT OF 1933 (THE ‘SECURITIES ACT’),
AND THIS SECURITY MAY NOT BE OFFERED, SOLD OR OTHERWISE TRANSFERRED IN THE
ABSENCE OF SUCH REGISTRATION OR AN APPLICABLE EXEMPTION THEREFROM. EACH
PURCHASER OF THIS SECURITY IS HEREBY NOTIFIED THAT THE SELLER OF THIS SECURITY
MAY BE RELYING ON THE EXEMPTION FROM THE PROVISIONS OF SECTION 5 OF THE
SECURITIES ACT PROVIDED BY RULE 144A THEREUNDER.


 


THE
HOLDER OF THIS SECURITY AGREES FOR THE BENEFIT OF THE COMPANY THAT (A) THIS
SECURITY MAY NOT BE OFFERED, SOLD, PLEDGED OR OTHERWISE TRANSFERRED, EXCEPT (X)
(I) TO A PERSON WHOM THE SELLER REASONABLY BELIEVES IS A QUALIFIED
INSTITUTIONAL BUYER WITHIN THE MEANING OF RULE 144A UNDER THE SECURITIES ACT
ACQUIRING FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF ANOTHER QUALIFIED
INSTITUTIONAL BUYER IN A TRANSACTION MEETING THE REQUIREMENTS OF RULE 144A,
(II) PURSUANT TO AN EXEMPTION FROM REGISTRATION UNDER THE SECURITIES ACT
PROVIDED BY RULE 144 THEREUNDER (IF AVAILABLE), (III) TO AN INSTITUTIONAL INVESTOR
THAT IS AN ACCREDITED INVESTOR WITHIN THE MEANING OF RULE 501(a)(1), (2), (3)
OR (7) OF REGULATION D UNDER THE SECURITIES ACT PURSUANT TO AN EXEMPTION FROM
REGISTRATION UNDER THE SECURITIES ACT (IF AVAILABLE) OR (IV) PURSUANT TO AN
EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT, AND (Y) IN
ACCORDANCE WITH ALL APPLICABLE SECURITIES LAWS OF THE STATES OF THE UNITED
STATES AND OTHER 


 


21

















 


JURISDICTIONS,
AND (B) THE HOLDER WILL, AND EACH SUBSEQUENT HOLDER IS REQUIRED TO, NOTIFY ANY
PURCHASER OF THE SECURITY FROM IT OF THE RESALE RESTRICTIONS REFERRED TO IN (A)
ABOVE.”


 


Any
stock certificate (or security issued in exchange or substitution therefor) as
to which such restrictions on transfer shall have expired in accordance with
their terms or that has been transferred pursuant to a registration statement
that has been declared effective under the Securities Act may be exchanged for
a new stock certificate, of like tenor and aggregate number of shares, which
shall not bear the Restricted Stock Legend required by this Section 2.5(c).


 


ARTICLE 3


 


The Securities


 


Section 3.1.            Aggregate
Amounts; Issuance. 


 


(a)           The aggregate principal amount of
Notes which may be authenticated and delivered under this Indenture is
$726,000,000. The entire aggregate amount of $726,000,000 of 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.


 


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:


 


22

















 


(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 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.


 


23

















 


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 one of its offices or
agencies to maintain 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 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.


 


24

















 


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


 


(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 


 


25

















 


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.


 


Any
certificated Note delivered in exchange for an interest in a Global Note
representing Transfer-Restricted Notes pursuant to this Section 3.5 shall,
except as otherwise provided by Section 3.12, bear the Restricted Note Legend
applicable to the certificated Note set forth in Section 2.5(b).


 


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.


 


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 


 


26

















 


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; (ii) in cash, by wire transfer to an account maintained by
the Person entitled thereto as specified in the Register of Holders; 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).


 


(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:


 


27

















 


(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 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.


 


(d)           In the event that the Company is
required to pay additional interest to Holders pursuant to a Registration
Rights Agreement (“Additional Interest”), the Company shall provide no later
than five Business Days prior to the proposed payment date set for the payment
of Additional Interest a direction or order in the form of a written notice (“Additional
Interest Notice”) to the Trustee (and if the Trustee is not the Paying Agent,
the Paying Agent) of the Company’s obligation to pay Additional Interest, and
the Additional Interest Notice shall set forth the amount of Additional
Interest to be paid by the Company on such payment date and direct the Trustee
(or, if the Trustee is not the Paying Agent, the Paying Agent) to make payment
to the extent it receives funds from the Company to do so (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


 


28

















 


payment in immediately
available funds and designated for and sufficient to pay all interest, if any,
on the Notes then due).


 


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 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.


 


29

















 


Section 3.12.          Transfers
of Transfer-Restricted Notes. 


 


(a)           The following provisions shall apply
with respect to any proposed transfer of a Transfer-Restricted Note prior to
the Resale Restriction Termination Date:


 


(i)            a transfer of a Note or a beneficial
interest therein to a QIB shall be made upon receipt by the Trustee or its
agent of a certificate substantially in the form of the Form of Certificate to
be Delivered Upon Exchange or Registration of Transfer of Notes set forth on
the reverse of the Note that the transferee is purchasing the Note for its own
account or an account with respect to which it exercises sole investment
discretion and that it and any such account is a “qualified institutional buyer”
within the meaning of Rule 144A, and is aware that the sale to it is being made
in reliance on Rule 144A and acknowledges that it has received such information
regarding the Company as it has requested pursuant to Rule 144A or has
determined not to request such information and that it is aware that the
transferor is relying upon its foregoing representations in order to claim the
exemption from registration provided by Rule 144A;


 


(ii)           a transfer of a Note or a beneficial
interest therein pursuant to an exemption from registration under the
Securities Act provided by Rule 144 thereunder shall be made upon receipt by
the Registrar of such opinions of counsel, certificates and/or other
information reasonably required by and satisfactory to it in order to ensure
compliance with the Securities Act; and


 


(iii)          a transfer of a Note or a beneficial
interest therein to an IAI shall be made upon receipt by the Trustee or its
agent of a certificate substantially in the form set forth in Section 3.13 from
the proposed transferee and the delivery of an Opinion of Counsel,
certification and/or other information satisfactory to each of them.


 


Upon
the transfer, exchange or replacement of Notes not bearing a Restricted Note
Legend, the Registrar shall deliver Notes that do not bear a Restricted Note
Legend. Upon the transfer, exchange or replacement of Notes bearing a
Restricted Note Legend, the Registrar shall deliver only Notes that bear such
Restricted Note Legend unless (i) a Note is being transferred pursuant to an
effective registration statement or (ii) if requested by the Company or
Registrar, there is delivered to the Company and the Registrar an Opinion of
Counsel to the effect that neither such legend nor the related restrictions on
transfer are required in order to maintain compliance with the provisions of
the Securities Act.


 


Section 3.13.          Form of Certificate To Be Delivered
in Connection with Transfers to Institutional Accredited Investors.


 


[Date]


 


UAL
Corporation

P.O. Box 66919

Chicago, Illinois 60666

Attention:  Treasurer


 


30

















 


Ladies
and Gentlemen:


 


This
certificate is delivered to request a transfer of $                    
principal amount of the 4.50% Senior Limited-Subordination Convertible Notes
due 2021 (the “Notes”) of UAL Corporation (the “Company”).


 


Upon
transfer, the Notes would be registered in the name of the new beneficial owner
as follows:


 


Name:


 


Address:


 


Taxpayer
ID Number:


 


The
undersigned represents and warrants to you that:


 


1.             We
are an institutional accredited investor (as defined in Rule 501(a)(1), (2),
(3) or (7) under the Securities Act of 1933, as amended (the “Securities Act”))
purchasing for our own account or for the account of such an institutional
accredited investor at least $250,000 principal amount of the Notes, and we are
acquiring the Notes not with a view to, or for offer or sale in connection
with, any distribution in violation of the Securities Act. We have such
knowledge and experience in financial and business matters as to be capable of
evaluating the merits and risk of our investment in the Notes and we invest in
or purchase securities similar to the Notes in the normal course of our
business. We and any accounts for which we are acting are each able to bear the
economic risk of the complete loss of our or its investment.


 


2.             We
understand that the Notes have not been registered under the Securities Act
and, unless so registered, may not be sold except as permitted in the following
sentence. We agree on our own behalf and on behalf of any investor account for
which we are purchasing Notes to offer, sell or otherwise transfer such Notes
prior to the Resale Restriction Termination Date only (a) to the Company, (b)
pursuant to a registration statement which has been declared effective under
the Securities Act, (c) in a transaction complying with the requirements of
Rule 144A under the Securities Act (“Rule 144A”), to a Person we reasonably
believe is a qualified institutional buyer under Rule 144A (a “QIB”) that
purchases for its own account or for the account of a QIB and to whom notice is
given that the transfer is being made in reliance on Rule 144A or (d) to an
institutional accredited investor within the meaning of Rule 501(a)(1), (2),
(3) or (7) under the Securities Act that is purchasing for its own account or
for the account of such an institutional accredited investor, in each case in a
minimum principal amount of Notes of $250,000 or, subject in each of the
foregoing cases to compliance with any applicable state securities laws. The
foregoing restrictions on resale will not apply subsequent to the Resale
Restriction Termination Date. If any resale or other transfer of the Notes is
proposed to be made pursuant to clause (d) above prior to the Resale
Restriction Termination Date, the transferor shall deliver a letter from the
transferee substantially in the form of this letter to the Company and the Trustee,
which shall provide, among other things, that the transferee is an
institutional accredited investor (within the meaning of Rule 501(a)(1), (2),
(3) or (7) under the Securities Act) and that it is acquiring such Notes


 


31

















 


for
investment purposes and not for distribution in violation of the Securities Act.
Each purchaser acknowledges that the Company and the Trustee reserve the right
prior to any offer, sale or other transfer prior to the Resale Termination Date
of the Notes pursuant to clauses (c) or (d) above to require the delivery of an
opinion of counsel, certifications and/or other information satisfactory to the
Company and the Trustee.


 


	
   

  	
  TRANSFEREE:

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  BY:

  	
   

  
				



 


Section 3.14.          Issuance,
Transfer and Exchange of Common Stock Issuable Upon Conversion of, or in payment of interest in respect of,
the Notes.  Shares of Common
Stock to be issued upon conversion of, or in payment of interest in respect of,
Transfer-Restricted Notes prior to the effectiveness of a Shelf Registration
Statement shall be delivered to the Holders converting such Notes and the
certificate representing such shares of Common Stock shall bear the Restricted
Stock Legend unless removed in accordance with Section 2.5(c).


 


If
(i) shares of Common Stock to be issued upon conversion of, or in payment of
interest in respect of, Notes prior to the effectiveness of a Shelf
Registration Statement are to be registered in a name other than that of the
Holder of such Notes or (ii) shares of Common Stock represented by a
certificate bearing the Restricted Stock Legend are transferred subsequently by
such Holder, then, unless the Shelf Registration Statement has become effective
and such shares are being transferred pursuant to the Shelf Registration
Statement, the Holder must deliver to the transfer agent for the Common Stock
and to the Company a certificate in substantially the form of Exhibit C as to
compliance with the restrictions on transfer applicable to such shares of
Common Stock and neither the transfer agent nor the registrar for the Common
Stock shall be required to register any transfer of such Common Stock not so
accompanied by a properly completed certificate.


 


Except
in connection with a Shelf Registration Statement, if certificates representing
shares of Common Stock are issued upon the registration of transfer, exchange
or replacement of any other certificate representing shares of Common Stock
bearing the Restricted Stock Legend, or if a request is made to remove such
Restricted Stock Legend from certificates representing shares of Common Stock,
the certificates so issued shall bear the Restricted Stock Legend, or the
Restricted Stock Legend shall not be removed, as the case may be, unless there
is delivered to the Company such reasonably satisfactory evidence, which, in
the case of a transfer made pursuant to Rule 144 under the Securities Act, may
include a written opinion from legal counsel, as may be reasonably required by
the Company, that neither the legend nor the restrictions on transfer set forth
therein are required to ensure that transfers thereof comply with the
Securities Act and that such shares of Common Stock are securities that are not
“restricted” within the meaning of Rule 144 under the Securities Act. Upon
provision to the Company of such reasonably satisfactory evidence, the Company
shall cause the transfer agent for the Common Stock to countersign and deliver
certificates representing shares of Common Stock that do not bear the
Restricted Stock Legend.


 


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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;


 


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


 


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(3)           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
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


 


34

















 


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 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.


 


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(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) 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


 


36

















 


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.


 


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):


 


37

















 


(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 (or 90 days
in the case of any breach of Section 9.5) 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;


 


(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 


 


38

















 


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,


 


(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


 


39

















 


(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 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.


 


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.


 


40

















 


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.


 


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:


 


41

















 


(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.


 


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 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.


 


42

















 


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 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.


 


43

















 


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 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.


 


44

















 


(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; 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.


 


(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


 


45

















 


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 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) 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. Every Holder, 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


 


46

















 


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.


 


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.


 


(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.


 


47

















 


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


 


(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


 


48

















 


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 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.


 


49

















 


(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 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 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


 


50

















 


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.


 


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 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:


 


51

















 


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 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


 


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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:


 


(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


 


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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.


 


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
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:


 


(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;


 


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(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.


 


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;


 


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and every Holder 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 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.


 


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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.


 


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.


 


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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 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


 


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(c)           to transmit to all Holders 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 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.


 


59

















 


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,
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.


 


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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.


 


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 or Offer to Redeem.  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 (a “Redemption
Notice”). 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.


 


All
notices of redemption or offers to redeem shall be prepared by the Company and
shall identify the Notes the Company is redeeming or offering to redeem and
shall state:


 


(1)           the Redemption Date;


 


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


 


(3)           in the case of a redemption pursuant
to Section 10.7 hereof, 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)           other than in the case of the
redemption of all Outstanding Notes pursuant to Section 10.7 hereof, that on
and after the Redemption Date, upon surrender of any Note to be redeemed in
part only, 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 may be surrendered for payment of the Redemption Price and accrued
interest to, but excluding, the Redemption Date;


 


(6)           that Notes called for redemption (in
the case of a redemption pursuant to Section 10.7 hereof) or as to which an
OPTION OF HOLDER TO ELECT REDEMPTION is given by the Holder (in the case of an
offer to redeem Notes pursuant to Section 10.8 hereof) 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;


 


(10)         the current Conversion Rate;


 


(11)         whether the Company elects to pay the
Redemption Price in cash, in shares of Common Stock or in 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 Last
Reported Sale Price of the Common Stock on the Trading Day immediately
preceding the date of such notice;


 


(12)         in the case of an offer to redeem
pursuant to Section 10.8 hereof, that Notes as to which an OPTION OF HOLDER TO
ELECT REDEMPTION 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;


 


(13)         in the case of an offer to redeem
pursuant to Section 10.8 hereof, the last date on which a holder may exercise
the redemption right, a description of the procedure which a Holder must follow
to exercise such redemption right or withdraw any Notes it has surrendered for
redemption;


 


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(14)         in the case of a redemption pursuant to
Section 10.7 hereof, 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);


 


(15)         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 or in respect of which an offer to redeem is made, as
the case may be;


 


(16)         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


 


(17)         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 this
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, together with accrued interest to but not including
the Redemption Date, 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 July 5, 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


 


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interest thereon to but not including
the applicable Redemption Date. Any redemption 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, in order to cause the Company to redeem
its Notes, each electing Holder must deliver to the Company and the Trustee the
form attached to the Notes labeled OPTION OF HOLDER TO ELECT REDEMPTION. The
Company shall notify the Trustee by no later than the second business day
preceding the Redemption Date (unless a shorter notice shall be satisfactory to
the Trustee) of the principal amount of Notes that the Holder has elected to
redeem. 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:


 


(a)           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,


 


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


 


(c)           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 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


 


65

















 


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 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 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);


 


(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.


 


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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 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).


 


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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, a copy of which will be
filed with the Trustee prior to the Redemption Date or Company Repurchase Date,
is entered into, 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 10.11(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).


 


(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


 


68

















 


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;


 


(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;


 


69

















 


(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
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


 


70

















 


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
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


 


71

















 


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 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 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.


 


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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 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


 


73

















 


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 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.


 


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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 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.


 


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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 after
October 23, 2006, and 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 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 for a Holder 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 (the “Conversion
Notice”), together with such Notes 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


 


76

















 


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.


 


(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.


 


77

















 


(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 Conversion Notice on or prior to the date on which the Company gives
a Redemption Notice, the following procedures shall apply:


 


(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 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 Conversion Notice shall be irrevocable. If the Company
elects to satisfy all or any portion of the Conversion Obligation in cash, and
the applicable 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


 


78

















 


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.
Any Common Stock issued on conversion of, or in payment of interest in respect
of, a Note in global form will also be issued in global form (unless the
Depositary for the Notes is unwilling to act as depositary for such Common
Stock, in which case such Common Stock shall be issued in certificated form).


 


(h)           Settlement amounts will be computed
as follows:


 


(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 (the “Cash Conversion Value”) 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”).


 


79

















 


(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.


 


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 Conversion Notice is received
from Holders 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.


 


(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 the Conversion
Obligation in cash up to 100% of the principal amount of the Notes converted
after the date of such election. If the Company shall make this election, then
if a Holder surrenders its Notes for conversion, such holder will receive, in
respect of each $1,000 principal amount of Notes surrendered for conversion:


 


(A)          cash in the amount equal to the lesser
of:


 


(i)            the principal amount of each Note,
or


 


(ii)           the Cash Conversion Value; and


 


(B)           to the extent the Cash Conversion
Value exceeds $1,000, the balance of the Conversion Obligation in the form of
cash or Common Stock or a combination of cash and Common Stock pursuant to this
Section 12.2.


 


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 Conversion Notice is received
from Holders 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


 


80

















 


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 28.7035 shares of Common Stock
subject to adjustment as provided in this Article 12 (the “Conversion Rate”).
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

  



 


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


 


81

















 


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

  



 


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


 


82

















 


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

  



 


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:


 


83

















 


	
  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;


 


(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 


 


84

















 


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):


 


(1)           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


 


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


 


(i)            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


 


(ii)           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:


 


85

















 


	
  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 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”).

  



 


86

















 


	
  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
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


 


87

















 


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;


 


(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 O’Hare 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.


 


88

















 


(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, (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.


 


89

















 


(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 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. For purposes of this Section 12.6, the kind and amount of
consideration that a Holder would have been entitled to receive as a Holder of
the Common Stock in the case of reclassifications, changes, consolidations,
mergers, combinations, sales or conveyances of assets or other transactions
that cause the Common Stock to be converted into the right to receive more than
a single type of consideration (determined based in part upon any form of
stockholder election) will be deemed to be the weighted average of the kind and
amount of consideration received by the Holders of the Common Stock that
affirmatively make such an election. 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, 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


 


90

















 


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 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, or in payment of interest in respect 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, or in payment of interest in respect 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 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


 


91

















 


(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:


 


(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 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.


 


92

















 


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.


 


IN
WITNESS WHEREOF, the parties hereto have caused this Indenture to be duly
executed 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

  



 


93

















 


EXHIBIT A


 


[FORM OF NOTE]


 


[INSERT GLOBAL NOTES 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.:         


 


UAL CORPORATION


 


4.50% SENIOR LIMITED-SUBORDINATION CONVERTIBLE NOTE DUE 2021


 


	
  No.
  [        ]

  	
  [Initially] $[          ]

  



 


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 [           ]
DOLLARS[, subject to increase by entry upon the Schedule of Increases or
Decreases in Global Note appended hereto to an amount not to exceed [                    ]
DOLLARS],(1) on June 30, 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.


 






(1)           Include for Global Notes only.


 


A-1

















 


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 4.50% Senior Limited-Subordination 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

  
					



 


A-2

















 


(REVERSE OF SECURITY)


 


4.50% SENIOR LIMITED-SUBORDINATION 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 4.50% per annum from the most recent date
on which interest has been paid or, if no interest has been paid, from July 25,
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 December 31, 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


 


A-3

















 


(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 July 25, 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 4.50% Senior
Limited-Subordination Convertible Notes due 2021. The Notes are limited in
aggregate principal amount to $726,000,000. 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 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 July 5, 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 July 5, 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. If the
Company elects to redeem the Notes pursuant to the optional redemption
provisions of Section 10.7 of the Indenture, notice of redemption shall be
mailed not less than 30 days nor more than 60 days before the Redemption Date
to each Holder 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


 


A-4

















 


limitations contained therein,
the Company will make an offer to purchase the Notes in accordance with the
procedures set forth in the Indenture. If the Company is required to offer to
redeem the Notes pursuant to the mandatory redemption provisions of Section
10.8 of the Indenture, notice of redemption shall be mailed not less than 45
days nor more than 60 days before the Redemption Date to each Holder to be
redeemed at such Holder’s registered address set forth in the Register.


 


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 June 30,
2011 and June 30, 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


 


A-5

















 


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 may not
enforce the Indenture or the Notes except as provided in the 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
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 28.7035 shares of the Company’s Common Stock, as such
shares shall be constituted at the date of conversion and subject to adjustment
from time to time as provided in the Indenture, per $1,000 principal amount of
Notes converted 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.


 


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
Regular Record Date for the payment of interest to the open of business the
following Interest Payment Date, this Note (or portion hereof being


 


A-6

















 


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 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 repurchase date following a Change in Ownership or Fundamental
Change 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.


 


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


 


A-7

















 


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.


 


A-8

















 


Schedule I


 


SCHEDULE OF INCREASES OR DECREASES IN GLOBAL NOTE


 


The
following increases or decreases in this Global Note have been made: 


 


	
  Date

  	
   

  	
  Amount of

  Decrease in

  Principal

  Amount of this

  Global Note

  	
   

  	
  Amount of

  Increase in

  Principal

  Amount of this

  Global Note

  	
   

  	
  Principal

  Amount of this

  Global Note

  Following such

  Decrease or

  Increase

  	
   

  	
  Signature of Authorized

  Officer of Trustee or Note

  Custodian

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  



 


A-9

















 


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:

  	
   

  	
   

  
						



 


A-10

















 


(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:


 


o


 


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:

  	
   

  	
   

  
								



 


A-11

















 


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)

  



 


A-12

















 


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:

  
	
   

  
	
   

  



 


A-13

















 


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)

  



 


A-14

















 


	
   

  	
  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:

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
			



 


A-15

















 


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 The Bank of New York Trust Company, N.A., 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) agrees
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:

  	
   

  



 


B-1

















 


EXHIBIT C


 


FORM OF
TRANSFER CERTIFICATE FOR TRANSFER

OF RESTRICTED COMMON STOCK


 


[NAME AND
ADDRESS OF COMMON STOCK TRANSFER AGENT]


 


Re:                               UAL Corporation 4.50% Senior Limited-Subordination Convertible Notes
due 2021 (the “Notes”)


 


Reference
is hereby made to the Indenture dated as of July 25, 2006 by UAL Corporation,
as issuer, and United Air Lines, Inc., as guarantor to The Bank Of New York
Trust Company, N.A., as Trustee (the “Indenture”). Capitalized terms used but
not defined herein shall have the meanings given them in the Indenture.


 


This
letter relates to            shares
of Common Stock [that are to be] [represented by the accompanying certificate(s)
that were] issued upon conversion of, or
in payment of interest in respect of, Notes and which are held in the name of
[name of transferor] (the “Transferor”) to effect the transfer of such Common
Stock.


 


In
connection with the transfer of such shares of Common Stock, the undersigned
confirms that such shares of Common Stock are being transferred and do not
require registration under the Securities Act (as defined below) because:


 


CHECK
ONE BOX BELOW:


 


o            Such
Common Stock is being acquired for the Transferor’s own account without
transfer.


 


o            Such
Common Stock is being transferred to a “qualified institutional buyer” (as
defined in Rule 144A under the Securities Act of 1933, as amended (the “Securities
Act”)), in accordance with Rule 144A under the Securities Act.


 


o            Such
Common Stock is being transferred pursuant to an exemption from registration in
accordance with Rule 144 under the Securities Act (and based upon an opinion of
counsel if the Company or the Trustee so requests).


 


o            Such
Common Stock is being transferred to an institutional investor that is an
Accredited Investor within the meaning of Rule 501(a)(1), (2), (3) or (7) of
Regulation D under the Securities Act pursuant to an exemption from
registration under the Securities Act (and based upon an opinion of counsel if
the Company or the Trustee so requests).


 


C-1

















 


Unless
one of the boxes is checked, the transfer agent will refuse to register any of
the Common Stock evidenced by this certificate in the name of any person other
than the registered holder thereof; provided,
however, that if the third or
fourth box is checked, the transfer agent may require, prior to registering any
such transfer of the Common Stock, such certifications and other information,
including opinions of counsel, as the Company has reasonably requested in
writing, by delivery to the transfer agent of a standing letter of instruction,
to confirm that such transfer is being made pursuant to an exemption from, or
in a transaction not subject to, the registration requirements of the
Securities Act.


 


[Name of Transferor],


 


	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  
	
   

  
	
   

  
	
   

  	
  Dated:

  



 


C-2