Exhibit 4.1


 


CA, Inc.


 


and


 


U.S. Bank National Association,


 


as Trustee


 






 


INDENTURE


 


Dated as of June 1, 2008


 






 

















 


Table of Contents


 


	
   

  	
   

  	
   

  	
  Page

  
	
   

  	
   

  	
   

  
	
  ARTICLE I DEFINITIONS AND INCORPORATION BY REFERENCE

  	
   

  	
  1

  
	
  Section 1.1

  	
  Definitions

  	
   

  	
  1

  
	
  Section 1.2

  	
  Other Definitions

  	
   

  	
  7

  
	
  Section 1.3

  	
  Incorporation by Reference of Trust Indenture Act

  	
   

  	
  7

  
	
  Section 1.4

  	
  Rules of Construction

  	
   

  	
  7

  
	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE II THE SECURITIES

  	
   

  	
  8

  
	
  Section 2.1

  	
  Issuable in Series

  	
   

  	
  8

  
	
  Section 2.2

  	
  Establishment of Terms of Securities of a Series

  	
   

  	
  8

  
	
  Section 2.3

  	
  Execution and Authentication

  	
   

  	
  10

  
	
  Section 2.4

  	
  Registrar and Paying Agent

  	
   

  	
  12

  
	
  Section 2.5

  	
  Paying Agent to Hold Money in Trust

  	
   

  	
  12

  
	
  Section 2.6

  	
  Holder Lists

  	
   

  	
  13

  
	
  Section 2.7

  	
  Transfer and Exchange

  	
   

  	
  13

  
	
  Section 2.8

  	
  Mutilated, Destroyed, Lost and Stolen Securities

  	
   

  	
  13

  
	
  Section 2.9

  	
  Outstanding Securities

  	
   

  	
  14

  
	
  Section 2.10

  	
  Treasury Securities

  	
   

  	
  15

  
	
  Section 2.11

  	
  Temporary Securities

  	
   

  	
  15

  
	
  Section 2.12

  	
  Cancellation

  	
   

  	
  15

  
	
  Section 2.13

  	
  Defaulted Interest

  	
   

  	
  15

  
	
  Section 2.14

  	
  Global Securities

  	
   

  	
  15

  
	
  Section 2.15

  	
  CUSIP Numbers

  	
   

  	
  17

  
	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE III REDEMPTION 

  	
   

  	
  17

  
	
  Section 3.1

  	
  Notice to Trustee

  	
   

  	
  17

  
	
  Section 3.2

  	
  Selection of Securities to be Redeemed

  	
   

  	
  17

  
	
  Section 3.3

  	
  Notice of Redemption

  	
   

  	
  17

  
	
  Section 3.4

  	
  Effect of Notice of Redemption

  	
   

  	
  18

  
	
  Section 3.5

  	
  Deposit of Redemption Price

  	
   

  	
  18

  
	
  Section 3.6

  	
  Securities Redeemed in Part

  	
   

  	
  18

  
	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE IV COVENANTS

  	
   

  	
  18

  
	
  Section 4.1

  	
  Payment of Principal and Interest

  	
   

  	
  18

  
	
  Section 4.2

  	
  Limitation on Liens

  	
   

  	
  19

  
	
  Section 4.3

  	
  Limitation on Sale/Leaseback Transactions

  	
   

  	
  20

  
	
  Section 4.4

  	
  Commission Reports

  	
   

  	
  21

  
	
  Section 4.5

  	
  Compliance Certificate

  	
   

  	
  22

  
	
  Section 4.6

  	
  Corporate Existence

  	
   

  	
  23

  
	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE V SUCCESSORS 

  	
   

  	
  23

  
	
  Section 5.1

  	
  When Company May Merge, Etc.

  	
   

  	
  23

  
	
  Section 5.2

  	
  Successor Person Substituted

  	
   

  	
  23

  
	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE VI DEFAULTS AND REMEDIES

  	
   

  	
  24

  
	
  Section 6.1

  	
  Events of Default

  	
   

  	
  24

  



 


i

















 


	
  Section 6.2

  	
  Acceleration of Maturity; Rescission and Annulment

  	
   

  	
  25

  
	
  Section 6.3

  	
  Collection of Indebtedness and Suits for Enforcement by Trustee

  	
   

  	
  26

  
	
  Section 6.4

  	
  Trustee May File Proofs of Claim

  	
   

  	
  27

  
	
  Section 6.5

  	
  Trustee May Enforce Claims Without Possession of Securities

  	
   

  	
  27

  
	
  Section 6.6

  	
  Application of Money Collected

  	
   

  	
  27

  
	
  Section 6.7

  	
  Limitation on Suits

  	
   

  	
  28

  
	
  Section 6.8

  	
  Unconditional Right of Holders to Receive Principal and Interest

  	
   

  	
  28

  
	
  Section 6.9

  	
  Restoration of Rights and Remedies

  	
   

  	
  29

  
	
  Section 6.10

  	
  Rights and Remedies Cumulative

  	
   

  	
  29

  
	
  Section 6.11

  	
  Delay or Omission Not Waiver

  	
   

  	
  29

  
	
  Section 6.12

  	
  Control by Holders

  	
   

  	
  29

  
	
  Section 6.13

  	
  Waiver of Past Defaults

  	
   

  	
  29

  
	
  Section 6.14

  	
  Undertaking for Costs

  	
   

  	
  30

  
	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE VII TRUSTEE 

  	
   

  	
  30

  
	
  Section 7.1

  	
  Duties of Trustee

  	
   

  	
  30

  
	
  Section 7.2

  	
  Rights of Trustee

  	
   

  	
  32

  
	
  Section 7.3

  	
  Individual Rights of Trustee

  	
   

  	
  33

  
	
  Section 7.4

  	
  Trustee’s Disclaimer

  	
   

  	
  33

  
	
  Section 7.5

  	
  Notice of Defaults

  	
   

  	
  33

  
	
  Section 7.6

  	
  Reports by Trustee to Holders

  	
   

  	
  34

  
	
  Section 7.7

  	
  Compensation and Indemnity

  	
   

  	
  34

  
	
  Section 7.8

  	
  Replacement of Trustee

  	
   

  	
  35

  
	
  Section 7.9

  	
  Successor Trustee by Merger, etc.

  	
   

  	
  35

  
	
  Section 7.10

  	
  Eligibility; Disqualification

  	
   

  	
  36

  
	
  Section 7.11

  	
  Preferential Collection of Claims Against Company

  	
   

  	
  36

  
	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE VIII SATISFACTION AND DISCHARGE; DEFEASANCE 

  	
   

  	
  36

  
	
  Section 8.1

  	
  Option to Effect Legal Defeasance or Covenant Defeasance

  	
   

  	
  36

  
	
  Section 8.2

  	
  Legal Defeasance and Discharge

  	
   

  	
  36

  
	
  Section 8.3

  	
  Covenant Defeasance

  	
   

  	
  37

  
	
  Section 8.4

  	
  Conditions to Legal or Covenant Defeasance

  	
   

  	
  37

  
	
  Section 8.5

  	
  Satisfaction and Discharge of Indenture

  	
   

  	
  38

  
	
  Section 8.6

  	
  Survival of Certain Obligations

  	
   

  	
  39

  
	
  Section 8.7

  	
  Acknowledgment of Discharge by Trustee

  	
   

  	
  39

  
	
  Section 8.8

  	
  Application of Trust Moneys

  	
   

  	
  39

  
	
  Section 8.9

  	
  Repayment to the Company; Unclaimed Money

  	
   

  	
  39

  
	
  Section 8.10

  	
  Reinstatement

  	
   

  	
  40

  
	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE IX AMENDMENTS AND WAIVERS 

  	
   

  	
  40

  
	
  Section 9.1

  	
  Without Consent of Holders

  	
   

  	
  40

  
	
  Section 9.2

  	
  With Consent of Holders

  	
   

  	
  41

  
	
  Section 9.3

  	
  Limitations

  	
   

  	
  42

  
	
  Section 9.4

  	
  Compliance with Trust Indenture Act

  	
   

  	
  42

  
	
  Section 9.5

  	
  Revocation and Effect of Consents

  	
   

  	
  42

  
	
  Section 9.6

  	
  Notation on or Exchange of Securities

  	
   

  	
  43

  
	
  Section 9.7

  	
  Trustee Protected

  	
   

  	
  43

  



 


ii

















 


	
  ARTICLE X MISCELLANEOUS 

  	
   

  	
  43

  
	
  Section 10.1

  	
  Trust Indenture Act Controls

  	
   

  	
  43

  
	
  Section 10.2

  	
  Notices

  	
   

  	
  43

  
	
  Section 10.3

  	
  Communication by Holders with Other Holders

  	
   

  	
  44

  
	
  Section 10.4

  	
  Certificate and Opinion as to Conditions Precedent

  	
   

  	
  44

  
	
  Section 10.5

  	
  Statements Required in Certificate or Opinion

  	
   

  	
  44

  
	
  Section 10.6

  	
  Rules by Trustee and Agents

  	
   

  	
  45

  
	
  Section 10.7

  	
  Legal Holidays

  	
   

  	
  45

  
	
  Section 10.8

  	
  No Recourse Against Others

  	
   

  	
  45

  
	
  Section 10.9

  	
  Counterparts

  	
   

  	
  45

  
	
  Section 10.10

  	
  Governing Laws

  	
   

  	
  45

  
	
  Section 10.11

  	
  No Adverse Interpretation of Other Agreements

  	
   

  	
  45

  
	
  Section 10.12

  	
  Successors

  	
   

  	
  45

  
	
  Section 10.13

  	
  Severability

  	
   

  	
  46

  
	
  Section 10.14

  	
  Table of Contents, Headings, Etc.

  	
   

  	
  46

  
	
  Section 10.15

  	
  Securities in a Foreign Currency

  	
   

  	
  46

  
	
  Section 10.16

  	
  Judgment Currency

  	
   

  	
  46

  



 


iii

















 


CA, Inc.

Reconciliation and tie between Trust Indenture Act of 1939 and

Indenture, dated as of June 1, 2008


 


	
  Section 310

  	
  (a)(1)

  	
   

  	
  7.10

  
	
   

  	
  (a)(2)

  	
   

  	
  7.10

  
	
   

  	
  (a)(3)

  	
   

  	
  Not Applicable

  
	
   

  	
  (a)(4)

  	
   

  	
  Not Applicable

  
	
   

  	
  (a)(5)

  	
   

  	
  7.10

  
	
   

  	
  (b)

  	
   

  	
  7.10

  
	
  Section 311

  	
  (a)

  	
   

  	
  7.11

  
	
   

  	
  (b)

  	
   

  	
  7.11

  
	
   

  	
  (c)

  	
   

  	
  Not Applicable

  
	
  Section 312

  	
  (a)

  	
   

  	
  2.6

  
	
   

  	
  (b)

  	
   

  	
  10.3

  
	
   

  	
  (c)

  	
   

  	
  10.3

  
	
  Section 313

  	
  (a)

  	
   

  	
  7.6

  
	
   

  	
  (b)(1)

  	
   

  	
  7.6

  
	
   

  	
  (b)(2)

  	
   

  	
  7.6

  
	
   

  	
  (c)(1)

  	
   

  	
  7.6

  
	
   

  	
  (d)

  	
   

  	
  7.6

  
	
  Section 314

  	
  (a)

  	
   

  	
  4.4, 4.5, 10.5

  
	
   

  	
  (b)

  	
   

  	
  Not Applicable

  
	
   

  	
  (c)(1)

  	
   

  	
  10.4

  
	
   

  	
  (c)(2)

  	
   

  	
  10.4

  
	
   

  	
  (c)(3)

  	
   

  	
  Not Applicable

  
	
   

  	
  (d)

  	
   

  	
  Not Applicable

  
	
   

  	
  (e)

  	
   

  	
  10.5

  
	
   

  	
  (f)

  	
   

  	
  Not Applicable

  
	
  Section 315

  	
  (a)

  	
   

  	
  7.1

  
	
   

  	
  (b)

  	
   

  	
  7.5

  
	
   

  	
  (c)

  	
   

  	
  7.1

  
	
   

  	
  (d)

  	
   

  	
  7.1

  
	
   

  	
  (e)

  	
   

  	
  6.14

  
	
  Section 316

  	
  (a)

  	
   

  	
  2.10

  
	
   

  	
  (a)(1)(a)

  	
   

  	
  6.12

  
	
   

  	
  (a)(1)(b)

  	
   

  	
  6.13

  
	
   

  	
  (b)

  	
   

  	
  6.8

  
	
   

  	
  (c)

  	
   

  	
  Not Applicable

  
	
  Section 317

  	
  (a)(1)

  	
   

  	
  6.3

  
	
   

  	
  (a)(2)

  	
   

  	
  6.4

  
	
   

  	
  (b)

  	
   

  	
  2.5

  
	
  Section 318

  	
  (a)

  	
   

  	
  10.1

  



 


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


 


iv

















 


Indenture dated as of June 1, 2008 between
CA, Inc., a corporation duly incorporated and existing under the
laws of Delaware and having its principal executive office at One CA Plaza,
Islandia, New York 11749 (the “Company”), and U.S. Bank National
Association, as Trustee (the “Trustee”).


 


Each party agrees as follows for the benefit of
the other party and for the equal and ratable benefit of the Holders of the
Securities issued under this Indenture:


 


ARTICLE I


 


DEFINITIONS AND
INCORPORATION BY REFERENCE


 


Section 1.1                                      Definitions.


 


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


 


“Affiliate” of any specified Person
means any other Person directly or indirectly controlling or controlled by or
under direct or indirect common control with such specified Person. For the
purposes of this definition, “control” (including, with correlative
meanings, the terms “controlled by” and “under common control with”),
as used with respect to any Person, shall mean the possession, directly or
indirectly, of the power to direct or cause the direction of the management or
policies of such Person, whether through the ownership of voting securities or
by agreement or otherwise.


 


“Agent” means any Registrar, Paying
Agent or Service Agent.


 


“Attributable
Debt” means, when used in connection with a Sale/Leaseback
Transaction involving a Principal Property, at the time of determination, the
lesser of:


 


(a)                                  the
fair value of such property (as determined in good faith by the Board of
Directors); and


 


(b)                                 the
present value of the total net amount of rent required to be paid under the lease
related to the Principal Property during the remaining term thereof (including
any renewal term or period for which such lease has been extended), discounted
at the rate of interest set forth or implicit in the terms of such lease or, if
not practicable to determine such rate, the weighted average interest rate per
annum borne by all outstanding Securities of the applicable Series compounded
semi-annually in either case as determined by the Company’s principal
accounting or financial officer.


 


For purposes of the foregoing definition, rent shall
not include amounts required to be paid by the lessee, whether or not
designated as rent or additional rent, on account of or contingent upon
maintenance and repairs, insurance, taxes, assessments, water rates and similar
charges. In the case of any lease that is terminable by the lessee upon the
payment of a penalty, such net amount 


 

















 


shall be the lesser of (i) the net amount
determined assuming termination upon the first date such lease may be
terminated (in which case the net amount shall also include the amount of the
penalty, but no rent shall be considered as required to be paid under such
lease subsequent to the first date upon which it may be so terminated) and (ii) the
net amount determined assuming no such termination.


 


“Authorized Newspaper” means a newspaper
in an official language of the country of publication customarily published at
least once a day for at least five days in each calendar week and of general
circulation in the place in connection with which the term is used. If it shall
be impractical in the opinion of the Trustee to make any publication of any
notice required hereby in an Authorized Newspaper, any publication or other
notice in lieu thereof that is made or given by the Trustee shall constitute a
sufficient publication of such notice.


 


“Bearer” means anyone in possession from
time to time of a Bearer Security.


 


“Bearer Security” means any Security,
including any interest coupon appertaining thereto, that does not provide for
the identification of the Holder thereof.


 


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


 


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


 


“Business Day” means, unless otherwise
provided by a Board Resolution, an Officers’ Certificate or a Supplemental
Indenture for the Securities of a particular Series, a day that is not,
in New York City, a Saturday, Sunday, a legal holiday or a day on which banking
institutions are authorized or obligated by law to close.


 


“Capital Stock” of any Person means any and all shares,
interests, rights to purchase, warrants, options, participations or other
equivalents of or interests in (however designated) equity of such Person,
including any preferred stock and limited liability or partnership interests
(whether general or limited), but excluding any debt securities convertible
into such equity.


 


“Commission” means the Securities and
Exchange Commission or any successor agency.


 


“Company” means the party named as such
above until a successor replaces it and thereafter means such successor.


 


“Company Order” means a written order
signed in the name of the Company by two Officers, one of whom must be the
Company’s principal executive officer, principal financial officer or principal
accounting officer.


 


“Company Request” means a written
request or order signed in the name of the Company, as the case may be, by (a) the
Chairman of the Board, a Vice Chairman of the Board, the Chief Executive
Officer, the President or a Vice President and by the Chief Financial Officer, 


 


2

















 


the
Treasurer, an Assistant Treasurer, the Controller, an Assistant Controller, the
Secretary or an Assistant Secretary of the Company, as the case may be, or (b) any
two Persons designated in a Company Order previously delivered to the Trustee
by any two of the foregoing officers.


 


“Consolidated
Net Assets” means, as of any particular time, the aggregate amount
of assets at the end of the Company’s most recently completed fiscal quarter
after deducting therefrom all current liabilities except for (a) notes and
loans payable, (b) current maturities of long-term debt and (c) current
maturities of obligations under capital leases, all as set forth on the most
recent consolidated balance sheet of the Company and its consolidated
Subsidiaries and computed in accordance with GAAP.


 


“Corporate Trust Office” means
the designated office of the Trustee at which at any particular time its
corporate trust business shall be administered, which office of U.S. Bank
National Association, at the date of the execution of this Indenture, is
located at 100 Wall Street, Suite 1600, New York, New York 10005,
Attention: Corporate Trust Services, or such other address as the Trustee may
designate from time to time by notice to the Holders and the Company, or the
principal corporate trust office of any successor Trustee (or such other
address as such successor Trustee may designate from time to time by notice to
the Holders and the Company).


 


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


 


“Depository” means, with respect to the
Securities of any Series issuable or issued in whole or in part in the
form of one or more Global Securities, the Person designated as Depository for
such Series by the Company, which Depository shall be a clearing agency
registered under the Exchange Act; and if at any time there is more than one
such Person, “Depository” as used with respect to the Securities of any Series shall
mean the Depository with respect to the Securities of such Series.


 


“Discount Security” means any Security
that provides for an amount less than the stated principal amount thereof to be
due and payable upon declaration of acceleration of the maturity thereof
pursuant to Section 6.2.


 


“Dollars” and “$” means the
currency of The United States of America.


 


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


 


“Foreign Currency” means any currency or
currency unit issued by a government other than the government of The United
States of America.


 


“Foreign Government Obligations” means,
with respect to Securities of any Series that are denominated in a Foreign
Currency, (a) direct obligations of the government that issued or caused
to be issued such currency for the payment of which obligations its full faith
and credit is pledged or (b) obligations of a Person controlled or
supervised by or acting as an agency or instrumentality of such government the
timely payment of which is unconditionally guaranteed as a full faith and
credit obligation by such government, which, in the case of either clause (a) or
(b), are not callable or redeemable at the option of the issuer thereof.


 


3

















 


“GAAP” means generally accepted
accounting principles set forth in the opinions and pronouncements of the
Accounting Principles Board of the American Institute of Certified Public
Accountants and statements and pronouncements of the Financial Accounting
Standards Board or in such other statements by such other entity as have been
approved by a significant segment of the accounting profession, which are in
effect as of the date of determination.


 


“Global Security” means a Security or
Securities, as the case may be, in the form established pursuant to Section 2.2
evidencing all or part of the Securities of a particular Series, issued to the
Depository for such Series or its nominee, and registered in the name of
such Depository or nominee.


 


“Holder” means a Person in whose name a
Security is registered or the holder of a Bearer Security.


 


“Indebtedness” means, with respect to any Person, obligations
(other than Nonrecourse Obligations) of such Person for borrowed money or
evidenced by bonds, debentures, notes or similar instruments.


 


“Indenture” means this Indenture as
amended or supplemented from time to time, subject to Section 10.1, and
shall include the form and terms of the Securities of a particular Series established
as contemplated hereunder.


 


“interest” with respect to any Discount
Security that by its terms bears interest only after Maturity means interest
payable after Maturity.


 


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


 


“Nonrecourse Obligation” means Indebtedness or
other obligations substantially related to (a) the acquisition of assets
not previously owned by the Company or any Restricted Subsidiary or (b) the
financing of a project involving the development or expansion of properties of
the Company or those of any Restricted Subsidiary, as to which the obligee with
respect to such Indebtedness or obligation has no recourse to the Company or
any Restricted Subsidiary or any assets of the Company or those of any
Restricted Subsidiary other than the assets that were acquired with the
proceeds of such transaction or the project financed with the proceeds of such
transaction (and the proceeds thereof).


 


“Officer” means the Chief Executive
Officer, the President, any Vice-President, the Treasurer, the Secretary, any
Assistant Treasurer or any Assistant Secretary of the Company.


 


“Officers’ Certificate” means a
certificate signed by two Officers, one of whom must be the Company’s principal
executive officer, principal financial officer or principal accounting officer.


 


“Opinion of Counsel” means a written
opinion of legal counsel who is acceptable to the Trustee. The counsel may be
an employee of or counsel to the Company.


 


4

















 


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


 


“principal” of a Security means the
principal of such Security plus, when applicable, the premium, if any, on, and
any Additional Amounts in respect of, such Security.


 


“Principal Property” means the land, land
improvements, buildings and fixtures (to the extent they constitute real
property interests and including any leasehold interest therein) constituting
the principal corporate office, any manufacturing plant or any manufacturing
facility (whether now owned or hereafter acquired) that:


 


(a)                                  is
owned by the Company or any of its Subsidiaries;


 


(b)                                 is
located within any of the present 50 states of the United States of America (or
the District of Columbia);


 


(c)                                  has
not been determined in good faith by the Board of Directors not to be
materially important to the total business conducted by the Company and its
Subsidiaries taken as a whole; and


 


(d)                                 has
a book value on the date as of which the determination is being made in excess
of 0.75% of Consolidated Net Assets as most recently determined on or prior to
that date.


 


“Responsible Officer” means, when
used with respect to the Trustee, any officer within the corporate trust
department of the Trustee having direct responsibility for the administration
of this Indenture or any other officer to whom any corporate trust matter is
referred because of such Person’s knowledge of and familiarity with the
particular subject.


 


“Restricted
Subsidiary” means any of the Company’s direct or indirect
Subsidiaries that owns any Principal Property; provided,
however, that the term “Restricted Subsidiary” does not
include (a) any such Subsidiary that is principally engaged in leasing or
in financing receivables or that is principally engaged in financing outside
the United States of America the Company’s operations or those of its
Subsidiaries or (b) any such Subsidiary less than 80% of the Voting Stock
of which is owned, directly or indirectly, by the Company, by one or more of
the Company’s other Subsidiaries or by the Company and one or more of the
Company’s other Subsidiaries if the common stock of such Subsidiary is traded
on any national securities exchange or in the over-the-counter market.


 


“Securities” means the debentures, notes
or other debt instruments of the Company of any Series authenticated and
delivered under this Indenture.


 


“Series” or “Securities of a Series”
means the debentures, notes or other debt instruments of the Company of a
particular series created pursuant to Sections 2.1 and 2.2.


 


“Stated Maturity” means when used with
respect to any Security or any installment of principal thereof or interest
thereon, the date specified in such Security as the fixed date on 


 


5

















 


which the principal of such Security or such
installment of principal or interest is due and payable.


 


“Subsidiary” means, with respect
to any Person, any corporation, association, partnership or other business
entity of which more than 50% of the total voting power of shares of Capital
Stock or other interests (including partnership interests) entitled (without
regard to the occurrence of any contingency) to vote in the election of
directors, managers or trustees thereof is at the time owned or controlled,
directly or indirectly, by (a) such Person, (b) such Person and one
or more Subsidiaries of such Person or (c) one or more Subsidiaries of
such Person.


 


“Supplemental Indenture” means any
instrument that supplements this Indenture as contemplated hereunder.


 


“TIA” means the Trust Indenture Act of
1939 as in effect on the date of this Indenture; provided,
however, that in the event the Trust Indenture Act of 1939 is
amended after such date, “TIA” means, to the extent required by any such
amendment, the Trust Indenture Act as so amended.


 


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


 


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


 


“Voting Stock” of a Person means all
classes of any and all shares, interests, rights to purchase, warrants,
options, participation or other equivalents of or interests in (however
designated) equity of such Person, including any preferred stock and limited
liability or partnership interests (whether general or limited), but excluding
any debt securities convertible into such equity, to the extent then
outstanding and normally entitled to vote in the election of such Person’s
directors, managers or trustees, as applicable.


 


6

















 


Section 1.2                                      Other Definitions.


 


	
  Term
  

  	
   

  	
  Defined in 

  Section 

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  “Bankruptcy Law”

  	
   

  	
  6.1

  	
   

  
	
  “Covenant Defeasance”

  	
   

  	
  8.3

  	
   

  
	
  “Custodian”

  	
   

  	
  6.1

  	
   

  
	
  “Event of Default”

  	
   

  	
  6.1

  	
   

  
	
  “Judgment Currency”

  	
   

  	
  10.16

  	
   

  
	
  “Legal Holiday”

  	
   

  	
  10.7

  	
   

  
	
  “Legal Defeasance”

  	
   

  	
  8.2

  	
   

  
	
  “Market Exchange Rate”

  	
   

  	
  10.15

  	
   

  
	
  “Mortgage”

  	
   

  	
  4.2(a)

  	
   

  
	
  “New York Banking Day”

  	
   

  	
  10.16

  	
   

  
	
  “Paying Agent”

  	
   

  	
  2.4

  	
   

  
	
  “Registrar”

  	
   

  	
  2.4

  	
   

  
	
  “Required Currency”

  	
   

  	
  10.16

  	
   

  
	
  “Sale/Leaseback
  Transaction”

  	
   

  	
  4.3(a)

  	
   

  
	
  “Service Agent”

  	
   

  	
  2.4

  	
   

  
	
  “Subordinated Securities”

  	
   

  	
  2.2(u)

  	
   

  
					



 


Section 1.3                                      Incorporation
by Reference of Trust Indenture Act. Whenever this Indenture refers to a
provision of the TIA, such provision is incorporated by reference in and made a
part of this Indenture. The following terms that are defined in the TIA and
used in this Indenture have the following meanings: (a) “indenture
securities” means the Securities; (b) “indenture security holder” means a
Holder; (c) “indenture to be qualified” means this Indenture; (d) “indenture
trustee” or “institutional trustee” means the Trustee; and (e) “obligor”
on the indenture securities means the Company and any successor obligor upon
the Securities. All other terms used in this Indenture that are defined in the
TIA or a rule thereunder or by the TIA’s reference to another statute that
are not otherwise defined herein are used herein as so defined.


 


Section 1.4                                      Rules of
Construction. Unless the context otherwise requires:


 


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


 


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


 


(c)                                  any item or list of items set forth
following the word “including” or “include” shall not be construed as
indicating that the category in which such item or items are so included are
limited to such item or items similar to such items;


 


(d)                                 the word “or” is not exclusive;


 


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


 


7





















 


(f)                                    all references in this Agreement to (i) any
designated “Article” or “Section” or any other subdivision are to the
designated Article or Section or other subdivision, as the case may
be, of this Agreement and (ii) the words “herein,” “hereof” and “hereunder”
and other words of similar import refer to this Agreement as a whole and not to
any particular Article or Section or other subdivision.


 


ARTICLE II


 


THE SECURITIES


 


Section 2.1                                      Issuable
in Series. The aggregate principal amount of Securities that may be
authenticated and delivered under this Indenture is unlimited. The Securities
may be issued in one or more Series. All Securities of a Series shall be
identical except as may be set forth or determined in the manner provided in a
Board Resolution, an Officers’ Certificate or a Supplemental Indenture
detailing the adoption of the terms thereof pursuant to authority granted under
a Board Resolution. In the case of Securities of a Series to be issued
from time to time, such Board Resolution, Officers’ Certificate or Supplemental
Indenture detailing the adoption of the terms thereof pursuant to authority
granted under a Board Resolution may provide for the method by which specified
terms (such as interest rate, maturity date, record date or date from which
interest shall accrue) are to be determined. Securities may differ between Series in
respect of any matters, provided that all Securities of a particular Series shall
be equally and ratably entitled to the benefits of the Indenture.


 


Section 2.2                                      Establishment
of Terms of Securities of a Series. At or prior to the issuance of any
Securities within a Series, the following shall be established (as to such Series generally,
in the case of Section 2.2(a) and either as to the Securities within
such Series or as to such Series generally in the case of Sections
2.2(b) through 2.2(w)) by or pursuant to a Board Resolution, and set forth
or determined in the manner provided in a Board Resolution, an Officers’
Certificate or a Supplemental Indenture:


 


(a)                                  the title of such Series (which
shall distinguish the Securities of such particular Series from the
Securities of any other Series);


 


(b)                                 the price or prices (expressed as a
percentage of the principal amount thereof) at which the Securities of such Series will
be issued;


 


(c)                                  any limit upon the aggregate principal
amount of the Securities of such Series that may be authenticated and
delivered under this Indenture (except for Securities authenticated and
delivered upon registration of transfer of, or in exchange for, or in lieu of,
other Securities of such Series pursuant to Section 2.7, 2.8, 2.11,
3.6 or 9.6);


 


(d)                                 the date or dates on which the principal
of the Securities of such Series is payable;


 


(e)                                  the rate or rates (which may be fixed or
variable) per annum or, if applicable, the method used to determine such rate
or rates (including, but not limited to, any commodity, commodity index, stock
exchange index or financial index) at which the 


 


8





















 


Securities of such Series shall bear interest, if any, the date or
dates from which such interest, if any, shall accrue, the date or dates on
which such interest, if any, shall commence and be payable and any regular
record date for the interest payable on any interest payment date;


 


(f)                                    the place or places where the principal
of and interest, if any, on the Securities of such Series shall be
payable, where the Securities of such Series may be surrendered for
registration of transfer or exchange and where notices and demands to or upon
the Company in respect of the Securities of such Series and this Indenture
may be served, and the method of such payment, if by wire transfer, mail or
other means;


 


(g)                                 if applicable, the period or periods
within which, the price or prices at which and the terms and conditions upon
which the Securities of such Series may be redeemed, in whole or in part,
at the option of the Company;


 


(h)                                 the obligation, if any, of the Company
to redeem or repurchase the Securities of such Series pursuant to any
sinking fund or analogous provisions or at the option of a Holder thereof and
the period or periods within which, the price or prices at which and the terms
and conditions upon which Securities of such Series shall be redeemed or
repurchased, in whole or in part, pursuant to such obligation;


 


(i)                                     the date or dates, if any, on which and
the price or prices at which the Securities of such Series will be
repurchased by the Company at the option of the Holders thereof and other
detailed terms and provisions of such repurchase obligations;


 


(j)                                     if other than denominations of $1,000
and any integral multiple thereof, the denominations in which the Securities of
such Series shall be issuable;


 


(k)                                  the forms of the Securities of such Series in
bearer or fully registered form (and, if in fully registered form, whether the
Securities will be issuable as Global Securities);


 


(l)                                     if other than the principal amount
thereof, the portion of the principal amount of the Securities of such Series that
shall be payable upon declaration of acceleration of the maturity thereof
pursuant to Section 6.2;


 


(m)                               the currency of denomination of the
Securities of such Series, which may be Dollars or any Foreign Currency, and
the agency or organization, if any, responsible for overseeing such composite
currency;


 


(n)                                 the designation of the currency,
currencies or currency units in which payment of the principal of and interest,
if any, on the Securities of such Series will be made;


 


(o)                                 if payments of principal of or interest,
if any, on the Securities of such Series are to be made in one or more
currencies or currency units other than that or those in which the Securities
of such Series are denominated, the manner in which the exchange rate with
respect to such payments will be determined;


 


9





















 


(p)                                 the manner in which the amounts of
payment of principal of or interest, if any, on the Securities of such Series will
be determined, if such amounts may be determined by reference to an index based
on a currency or currencies or by reference to a commodity, commodity index,
stock exchange index or financial index;


 


(q)                                 the provisions, if any, relating to any
security provided for the Securities of such Series;


 


(r)                                    any addition to or change in the Events
of Default that apply to any Securities of such Series and any change in
the right of the Trustee or the requisite Holders of the Securities of such Series to
declare the principal amount thereof due and payable pursuant to Section 6.2;


 


(s)                                  any addition to or change in the
covenants set forth in Article IV or V that apply to Securities of such
Series;


 


(t)                                    the provisions, if any, relating to
conversion of any Securities of such Series, including, if applicable, the
conversion price, the conversion period, provisions as to whether conversion
will be mandatory, at the option of the Holders or at the option of the
Company, the events requiring an adjustment of the conversion price and
provisions affecting conversion if the Securities of such Series are
redeemed;


 


(u)                                 whether the Securities of such Series will
be “senior debt securities” or “senior subordinated debt securities” or “junior
subordinated debt securities” and, if applicable, a description of the
subordination terms thereof (the Securities of such Series that are so
subordinated, “Subordinated Securities”);


 


(v)                                 any depositories, interest rate
calculation agents, exchange rate calculation agents or other agents with
respect to Securities of such Series if other than those appointed herein;
and


 


(w)                               any other terms of the Securities of
such Series (which may modify or delete any provision of this Indenture
insofar as it applies to the Securities of such Series).


 


All Securities of any one Series need not
be issued at the same time and may be issued from time to time, consistent with
the terms of this Indenture, if so provided by or pursuant to the Board
Resolution, Officers’ Certificate or Supplemental Indenture referred to above,
and the authorized principal amount of any Series may not be increased to
provide for issuances of additional Securities of such Series, unless otherwise
provided in such Board Resolution, Officers’ Certificate or Supplemental
Indenture.


 


Section 2.3                                      Execution
and Authentication. Two Officers shall sign the Securities for the Company
by manual or facsimile signature.


 


If an Officer whose signature is on a Security
no longer holds that office at the time the Security is authenticated, the
Security shall nevertheless be valid.


 


10














 


A Security shall not be valid until
authenticated by the manual signature of the Trustee or an authenticating
agent. The signature shall be conclusive evidence that the Security has been
authenticated under this Indenture.


 


The Trustee shall at any time, and from time to
time, authenticate Securities for original issue in the principal amount
provided in the Board Resolution, Officers’ Certificate or Supplemental
Indenture, upon receipt by the Trustee of a Company Order. Such Company Order
may authorize authentication and delivery pursuant to oral or electronic
instructions from the Company or its duly authorized agent or agents, which
oral instructions shall be promptly confirmed in writing. Each Security shall
be dated the date of its authentication unless otherwise provided by a Board
Resolution, an Officers’ Certificate or a Supplemental Indenture.


 


The aggregate principal amount of Securities of
any Series outstanding at any time may not exceed any limit upon the
maximum principal amount for such Series established pursuant to Section 2.2(c),
except as provided in Section 2.8.


 


Prior to the issuance of Securities of any
Series, the Trustee shall have received and (subject to Sections 7.1 and 7.2)
shall be fully protected in relying on: (a) the Board Resolution, Officers’
Certificate or Supplemental Indenture establishing the form of the Securities
of such Series or of Securities within such Series and the terms of
the Securities of such Series or of Securities within such Series; (b) an
Officers’ Certificate complying with Section 10.4; and (c) an Opinion
of Counsel complying with Section 10.4.


 


The Trustee shall have the right to decline to
authenticate and deliver any Securities of such Series if (a) the
Trustee, being advised by counsel, determines that such action may not be taken
lawfully or (b) the Trustee in good faith by its board of directors or
trustees, executive committee or a trust committee of directors or
vice-presidents shall determine that such action would expose the Trustee to
personal liability to Holders of any then outstanding Securities of such
Series.


 


The Trustee may appoint an authenticating agent
acceptable to the Company to authenticate Securities. An authenticating agent
may authenticate Securities whenever the Trustee may do so. Each reference in
this Indenture to authentication by the Trustee includes authentication by such
agent. An authenticating agent has the same rights as an Agent to deal with the
Company or an Affiliate of the Company.


 


11

















 


Section 2.4             Registrar and
Paying Agent. The Company shall maintain, with respect to the Securities of
each Series, at the place or places established with respect to Securities of
such Series pursuant to Section 2.2(f), an office or agency where
Securities of such Series may be presented or surrendered for payment (“Paying
Agent”), where Securities of such Series may be surrendered for
registration of transfer or exchange (“Registrar”) and where notices and
demands to or upon the Company in respect of the Securities of such Series and
this Indenture may be served (“Service Agent”). The Registrar shall keep
a register with respect to the Securities of each Series and to their
transfer and exchange. The Company will give prompt written notice to the
Trustee of the name and address, and any change in the name or address, of each
Registrar, Paying Agent or Service Agent. If at any time the Company shall fail
to maintain any such required Registrar, Paying Agent or Service Agent or shall
fail to furnish the Trustee with the name and address thereof, such
presentations, surrenders, notices and demands may be made or served at the
Corporate Trust Office of the Trustee, and the Company hereby appoints the
Trustee as its agent to receive all such presentations, surrenders, notices and
demands.


 


The Company may also from time to time
designate one or more co-registrars, additional paying agents or additional
service agents 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 obligations to maintain a
Registrar, Paying Agent and Service Agent in each place so specified pursuant
to Section 2.2 for Securities of any Series 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 name or address of any such
co-registrar, additional paying agent or additional service agent. The term “Registrar”
includes any co-registrar; the term “Paying Agent” includes any
additional paying agent; and the term “Service Agent” includes any
additional service agent.


 


The Company hereby appoints the Trustee the
initial Registrar, Paying Agent and Service Agent for each Series unless
another Registrar, Paying Agent or Service Agent, as the case may be, is
appointed prior to the time Securities of such Series are first issued.


 


Section 2.5             Paying
Agent to Hold Money in Trust. The Company shall require each Paying Agent
other than the Trustee to agree in writing that the Paying Agent will hold in
trust, for the benefit of Holders of the Securities of any Series, or the
Trustee, all money held by the Paying Agent for the payment of principal of or
interest on the Securities of such Series, and will notify the Trustee of any
default by the Company in making any such payment. While any such default
continues, the Trustee may require a Paying Agent to pay all money held by it
to the Trustee. The Company at any time may require a Paying Agent to pay all
money held by it to the Trustee. Upon payment over to the Trustee, the Paying
Agent (if other than the Company or a Subsidiary of the Company) shall have no
further liability for the money. If the Company or a Subsidiary of the Company
acts as Paying Agent, it shall segregate and hold in a separate trust fund for
the benefit of Holders of the Securities of any Series all money held by
it as Paying Agent.


 


12

















 


Section 2.6             Holder Lists.
The Trustee shall preserve, in as current a form as is reasonably practicable,
the most recent list  available  to  it  of  the  names  and  addresses  of  Holders  of  the  Securities  of  each  Series  and  shall  otherwise  comply  with Section 312(a) of the TIA. If the
Trustee is not the Registrar, the Company shall furnish to the Trustee at least
ten days before each interest payment date and at such other times as the
Trustee may request in writing a list, in such form and as of such date as the
Trustee may reasonably require, of the names and addresses of Holders of the
Securities of each Series.


 


Section 2.7             Transfer
and Exchange. Where Securities of a Series are presented to the
Registrar or a co-registrar with a request to register a transfer or to
exchange them for an equal principal amount of Securities of the same Series,
the Registrar shall register the transfer or make the exchange if its
requirements for such transactions are met. To permit registrations of
transfers and exchanges, the Trustee shall authenticate Securities at the Registrar’s
request. No service charge shall be made for any registration of transfer or
exchange (except as otherwise expressly permitted herein), but the Company or
the Trustee may require payment of a sum sufficient to cover any transfer tax
or similar governmental charge payable in connection therewith (other than any
such transfer tax or similar governmental charge payable upon exchanges
pursuant to Section 2.11, 3.6 or 9.6).


 


Neither the Company nor the Registrar shall be
required (a) to issue, register the transfer of, or exchange Securities of
any Series for the period beginning at the opening of business fifteen
days immediately preceding the mailing of a notice of redemption of Securities
of such Series selected for redemption and ending at the close of business
on the day of such mailing, or (b) to register the transfer of or exchange
Securities of any Series selected, called or being called for redemption
as a whole or the portion being redeemed of any such Securities selected,
called or being called for redemption in part.


 


Section 2.8             Mutilated,
Destroyed, Lost and Stolen Securities. If any mutilated Security is
surrendered to the Trustee, the Company shall execute and the Trustee shall
authenticate and make available for delivery in exchange therefor a new
Security of the same Series and of like tenor and principal amount and
bearing a number not contemporaneously outstanding.


 


If there shall be delivered to the Company and
the Trustee (a) evidence to their satisfaction of the destruction, loss or
theft of any Security and (b) such security or indemnity as may be
required by them to save each of them and any agent of either of them harmless,
then, in the absence of notice to the Company or the Trustee that such Security
has been acquired by a protected purchaser (within the meaning of the Uniform
Commercial Code as in effect in the jurisdiction in which the Company is
organized), the Company
shall execute and upon its request the Trustee shall authenticate and make
available for delivery, in lieu of any such destroyed, lost or stolen Security,
a new Security of the same Series and of like tenor and principal amount
and bearing a number not contemporaneously outstanding.


 


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


 


13

















 


Upon the issuance of any new Security under
this Section 2.8, the Company may require the payment of a sum sufficient
to cover any tax or other governmental charge that may be imposed in relation
thereto and any other expenses (including the fees and expenses of the Trustee)
connected therewith.


 


Every new Security of any Series issued
pursuant to this Section 2.8 in lieu of any destroyed, lost or stolen
Security shall constitute an original additional contractual obligation of the
Company, whether or not the destroyed, lost or stolen Security 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 Securities of such
Series duly issued hereunder.


 


The provisions of this Section 2.8 are
exclusive and shall preclude (to the extent lawful) all other rights and
remedies with respect to the replacement or payment of mutilated, destroyed,
lost or stolen Securities.


 


Section 2.9             Outstanding
Securities. The Securities outstanding at any time are all the Securities
authenticated by the Trustee except for those canceled by it pursuant to Section 2.12,
those delivered to it for cancellation, those reductions in the interest on a
Global Security effected by the Trustee in accordance with the provisions
hereof and those described in this Section 2.9 as not outstanding.


 


If a Security is replaced pursuant to Section 2.8,
it ceases to be outstanding until the Trustee receives proof satisfactory to it
that the replaced Security is held by a protected purchaser.


 


If the Paying Agent (other than the Company, a
Subsidiary of the Company or an Affiliate of the Company) holds on the Maturity
of Securities of a Series money sufficient to pay such Securities payable
on that date, then on and after that date the Securities of such Series cease
to be outstanding and interest on them ceases to accrue.


 


A Security does not cease to be outstanding
because the Company or an Affiliate of the Company holds the Security.


 


In determining whether the Holders of the
requisite principal amount of outstanding Securities have given any request,
demand, authorization, direction, notice, consent or waiver hereunder, the
principal amount of a Discount Security that shall be deemed to be outstanding
for such purposes shall be the amount of the principal thereof that would be
due and payable as of the date of such determination upon a declaration of
acceleration of the Maturity thereof pursuant to Section 6.2.


 


14

















 


Section 2.10           Treasury Securities.
In determining whether the Holders of the required principal amount of
Securities of a Series have concurred in any request, demand,
authorization, direction, notice, consent or waiver, Securities of a Series owned
by the Company shall be disregarded, except that for the purposes of
determining whether the Trustee shall be protected in relying on any such
request, demand, authorization, direction, notice, consent or waiver, only
Securities of a Series that a Responsible Officer of the Trustee knows are
so owned shall be so disregarded.


 


Section 2.11           Temporary
Securities. Until definitive Securities are ready for delivery, the Company
may prepare and the Trustee shall authenticate temporary Securities upon a
Company Order. Temporary Securities shall be substantially in the form of
definitive Securities but may have variations that the Company considers
appropriate for temporary Securities. Without unreasonable delay, the Company
shall prepare and the Trustee upon request shall authenticate definitive
Securities of the same Series and date of maturity in exchange for
temporary Securities. Until so exchanged, temporary securities shall have the
same rights under this Indenture as the definitive Securities.


 


Section 2.12           Cancellation.
The Company at any time may deliver Securities to the Trustee for cancellation.
The Registrar and the Paying Agent shall forward to the Trustee any Securities
surrendered to them for registration of transfer, exchange or payment. The
Trustee shall cancel all Securities surrendered for registration of transfer,
exchange, payment, replacement or cancellation in accordance with its customary
procedures and, if requested in writing by the Company, deliver such canceled
Securities to the Company or as it otherwise directs; provided,
however, that the Trustee shall not be required to destroy
Securities. The Company may not issue new Securities to replace Securities that
it has paid or delivered to the Trustee for cancellation.


 


Section 2.13           Defaulted
Interest. If the Company defaults in a payment of interest on the
Securities of any Series, it shall pay the defaulted interest, plus, to the
extent permitted by law, any interest payable on the defaulted interest, to the
Persons who are Holders of the Securities of such Series on a subsequent
special record date. The Company shall fix the record date and payment date. At
least ten days before the record date, the Company shall mail to the Trustee
and to each Holder of such Series a notice that states the record date,
the payment date and the amount of interest to be paid. The Company may pay
defaulted interest in any other lawful manner.


 


Section 2.14           Global Securities.


 


(a)           Terms
of Securities. A Board Resolution, an Officers’ Certificate or a
Supplemental Indenture shall establish whether the Securities of a Series shall
be issued in whole or in part in the form of one or more Global Securities and
the Depository for such Global Security or Securities.


 


(b)           Transfer and Exchange. Notwithstanding any provisions to the
contrary contained in Section 2.7, any Global Security shall be
exchangeable pursuant to Section 2.7 for Securities registered in the
names of Holders other than the Depository therefor or its nominee only if (i) such
Depository notifies the Company that it is unwilling or unable 


 


15





















 


to continue as Depository for such
Global Security or if at any time such Depository ceases to be a clearing
agency registered under the Exchange Act, and, in either case, the Company
fails to appoint a successor Depository registered as a clearing agency under
the Exchange Act within 90 days of such event, (ii) the Company executes
and delivers to the Trustee an Officers’ Certificate to the effect that such
Global Security shall be so exchangeable or (iii) an Event of Default with
respect to the Securities represented by such Global Security shall have
happened and be continuing. Any Global Security that is exchangeable pursuant
to the preceding sentence shall be exchangeable for Securities registered in
such names as the Depository shall direct in writing in an aggregate principal
amount equal to the principal amount of the Global Security with like tenor and
terms. Except as provided in this Section 2.14(b), a Global Security may
not be transferred except as a whole by the Depository with respect to such Global
Security to a nominee of such Depository, by a nominee of such Depository to
such Depository or another nominee of such Depository or by the Depository or
any such nominee to a successor Depository or a nominee of such a successor
Depository.


 


(c)           Legend. Any Global Security issued hereunder shall bear a legend in
substantially the following form:


 


“This Security is a Global Security within the meaning of the Indenture
hereinafter referred to and is registered in the name of the Depository or a
nominee of the Depository. This Security is exchangeable for Securities
registered in the name of a Person other than the Depository or its nominee
only in the limited circumstances described in the Indenture, and may not be
transferred except as a whole by the Depository to a nominee of the Depository,
by a nominee of the Depository to the Depository or another nominee of the
Depository or by the Depository or any such nominee to a successor Depository
or a nominee of such a successor Depository.”


 


(d)           Acts of Holders. The Depository, as a Holder, may
appoint agents and otherwise authorize participants to give or take any
request, demand, authorization, direction, notice, consent, waiver or other
action that a Holder is entitled to give or take under the Indenture.


 


(e)           Payments. Notwithstanding the other provisions
of this Indenture, unless otherwise specified as contemplated by Section 2.2,
payment of the principal of and interest, if any, on any Global Security shall
be made to the Holder thereof.


 


(f)            Consents, Declaration and Directions. Except as provided in Section 2.14(e),
the Company, the Trustee and any Agent shall treat a Person as the Holder of
such principal amount of outstanding Securities of such Series represented
by a Global Security as shall be specified in a written statement of the
Depository with respect to such Global Security, for purposes of obtaining any
consents, declarations, waivers or directions required to be given by the
Holders pursuant to this Indenture.


 


16





















 


Section 2.15           CUSIP
Numbers. The Company in issuing the Securities may use “CUSIP” numbers (if
then generally in use), and, if so, the Trustee shall use “CUSIP” numbers in
notices of redemption as a convenience to Holders; provided, however,
that any such notice may state that no representation is made as to the
correctness of such numbers either as printed on the Securities or as contained
in any notice of a redemption and that reliance may be placed only on the other
elements of identification printed on the Securities, and any such redemption
shall not be affected by any defect in or omission of such numbers. The Company
shall promptly notify the Trustee in writing of any change in “CUSIP” numbers
of which the Company becomes aware.


 


ARTICLE III


 


REDEMPTION


 


Section 3.1             Notice
to Trustee. The Company may, with respect to the Securities of any Series,
reserve the right to redeem and pay the Securities of such Series or may
covenant to redeem and pay the Securities of such Series or any part
thereof prior to the Stated Maturity thereof at such time and on such terms as
provided for in the Securities of such Series. If the Securities of any Series are
redeemable and the Company wants or is obligated to redeem prior to the Stated
Maturity thereof all or part of the Securities of such Series pursuant to
the terms of the Securities of such Series, it shall notify the Trustee of the
date of such redemption and the principal amount of the Securities of such Series to
be redeemed. The Company shall give the notice at least 45 days before the date
of such redemption (or such shorter notice as may be acceptable to the
Trustee).


 


Section 3.2             Selection
of Securities to be Redeemed. Unless otherwise indicated for the Securities
of a particular Series by a Board Resolution, an Officers’ Certificate or
a Supplemental Indenture, if less than all the Securities of a Series are
to be redeemed, the Trustee shall select the Securities of such Series to
be redeemed in any manner that the Trustee deems fair and appropriate. The
Trustee shall make the selection from Securities of such Series outstanding
not previously called for redemption. The Trustee may select for redemption
portions of the principal of Securities of such Series that have
denominations larger than $1,000. Securities of such Series and portions
of them it selects shall be in amounts of $1,000 or whole multiples of $1,000
or, if the Securities of such Series are issuable in other denominations
pursuant to Section 2.2(j), the minimum principal denomination for the
Securities of such Series and integral multiples thereof. Provisions of
this Indenture that apply to Securities of a Series called for redemption
also apply to portions of Securities of such Series called for redemption.


 


Section 3.3             Notice
of Redemption. Unless otherwise indicated for a particular Series by
Board Resolution, an Officers’ Certificate or a Supplemental Indenture, at
least 30 days but not more than 60 days before any date of redemption of the
Securities of any Series, the Company shall mail a notice of redemption by
first-class mail to each Holder whose Securities are to be redeemed and if any
Bearer Securities are outstanding, publish on one occasion a notice in an
Authorized Newspaper.


 


The notice shall identify the Securities of
such Series to be redeemed and shall state:


 


17

















 


(a)           the date of such redemption;


 


(b)           the redemption price;


 


(c)           the name and address of the Paying
Agent;


 


(d)           that Securities of such Series called
for redemption must be surrendered to the Paying Agent to collect the
redemption price;


 


(e)           that interest on Securities of such Series called
for redemption ceases to accrue on and after the date of such redemption;


 


(f)            the CUSIP number, if any; and


 


(g)           any other information as may be required
by the terms of the particular Series or the Securities of a Series being
redeemed.


 


Subject to Section 3.1, at the Company’s
written request, the Trustee shall give the notice of redemption in the Company’s
name and at its expense.


 


Section 3.4             Effect
of Notice of Redemption. Once notice of redemption is mailed or published
as provided in Section 3.3, Securities of a Series called for
redemption become due and payable on the date of such redemption and at the
redemption price. A notice of redemption may not be conditional. Upon surrender
to the Paying Agent, such Securities shall be paid at the redemption price plus
accrued interest to the date of such redemption; provided,
however, that installments of interest whose Stated Maturity is on
or prior to the date of such redemption shall be payable to the Holders of such
Securities (or one or more predecessor Securities) registered at the close of
business on the relevant record date therefor according to their terms and the
terms of this Indenture.


 


Section 3.5             Deposit
of Redemption Price. On or before 10:00 a.m., New York City time, on
the date of such redemption, the Company shall deposit with the Paying Agent
money sufficient to pay the redemption price of and accrued interest, if any,
on all Securities to be redeemed on that date.


 


Section 3.6             Securities
Redeemed in Part. Upon surrender of a Security that is redeemed in part,
the Trustee shall authenticate for the Holder a new Security of the same Series and
the same maturity equal in principal amount to the unredeemed portion of the
Security surrendered.


 


ARTICLE IV


 


COVENANTS


 


Section 4.1             Payment
of Principal and Interest. The Company covenants and agrees for the benefit
of the Holders of the Securities of each Series that it will duly and
punctually pay the principal of and interest, if any, on the Securities of such
Series in accordance with the terms of the Securities of such Series and
this Indenture.


 


18

















 


Section 4.2             Limitation
on Liens.


 


(a)           So
long as any of the Securities of any Series are outstanding (other than
Subordinated Securities), the Company will not itself, and will not permit any
Restricted Subsidiary to, directly or indirectly, issue, incur, create, assume
or guarantee any Indebtedness secured by a mortgage, security interest, pledge,
lien, charge or other encumbrance upon any Principal Property or upon any
shares of Capital Stock or Indebtedness of any Restricted Subsidiary (a “Mortgage”),
whether such Principal Property, shares or Indebtedness are now existing or
owned or hereafter created or acquired, unless prior to or at the same time the
Securities of such Series are equally and ratably secured with or, at the
option of the Company, prior to such secured Indebtedness; provided,
however, that this Section 4.2
shall not apply to:


 


(i)            Mortgages on property,
shares of Capital Stock or Indebtedness or other assets of any corporation
existing at the time such corporation becomes a Restricted Subsidiary, provided
that such Mortgage was not incurred in anticipation of such corporation
becoming a Restricted Subsidiary;


 


(ii)           Mortgages on property,
shares of Capital Stock or Indebtedness existing at the time of acquisition by
the Company or any Restricted Subsidiary (which may include property previously
leased by the Company and leasehold interests on the property, provided that
the lease terminates prior to or upon the acquisition) or Mortgages on
property, shares of Capital Stock or Indebtedness to secure the payment of all
or any part of the purchase price of the property, shares of Capital Stock or
Indebtedness, or Mortgages on property, shares of Capital Stock or Indebtedness
to secure any Indebtedness incurred prior to, at the time of, or within 270 days
after, the latest of the acquisition or, in the case of property, the
completion of construction, the completion of improvements or the beginning of
substantial commercial operation of such property for the purpose of financing
all or any part of the purchase price of the property, the construction or the
making of the improvements;


 


(iii)          Mortgages in favor of
the Company or another Restricted Subsidiary;


 


(iv)          Mortgages existing on
the date of issuance of the Securities of such Series;


 


(v)           Mortgages on property
or other assets of a corporation existing at the time a corporation is merged
into or consolidated with either the Company or any Restricted Subsidiary or at
the time of a sale, lease or other disposition of the properties of a
corporation as an entirety or substantially as an entirety to either the
Company or any Restricted Subsidiary, provided that this Mortgage was not
incurred in anticipation of the merger or consolidation or sale, lease or other
disposition;


 


19





















 


(vi)          Mortgages in favor of
the United States of America or any state, territory or possession thereof (or
the District of Columbia) to secure partial, progress, advance or other
payments pursuant to any contract or statute or to secure any Indebtedness
incurred for the purpose of financing all or any part of the purchase price or
cost of constructing or improving the property subject to such Mortgages;


 


(vii)         Mortgages created in
connection with a project financed with, and created to secure, a Nonrecourse
Obligation;


 


(viii)        Mortgages securing all of
the Securities of such Series; or


 


(ix)           extensions, renewals or
replacements of any Mortgage referred to in clauses (i) through (viii) above
without increase of the principal
of the Indebtedness secured by the Mortgage; provided,
however, that any Mortgages permitted by
any of clauses (i) through (viii) above shall not extend to or cover
any property of the Company or that of any Restricted Subsidiary, as the case
may be, other than the property specified in these clauses and improvements to
this property.


 


(b)           Notwithstanding
Section 4.2(a), the Company and any Restricted Subsidiary, or any of them,
may issue, incur, create, assume or guarantee Indebtedness secured by a
Mortgage without equally and ratably securing the Securities of any Series then
outstanding, provided  that at the
time of such issuance, incurrence, creation, assumption or guarantee, after
giving effect thereto and to the retirement of any Indebtedness that is
concurrently being retired, the aggregate amount of all outstanding  Indebtedness  secured  by  Mortgages  (excluding  Mortgages  permitted  under  clauses  (i)  through (ix)  of  Section  4.2(a)) does not at such time exceed 15%
of Consolidated Net Assets.


 


(c)           Notwithstanding
the foregoing, any Mortgage securing the Securities granted pursuant to this
covenant shall be automatically and unconditionally released and discharged
upon the release by all holders of the Indebtedness secured by the Mortgage
giving rise to the Mortgage securing the Securities (including any deemed
release upon payment in full of all obligations under such Indebtedness).


 


Section 4.3             Limitation on
Sale/Leaseback Transactions.


 


(a)           So
long as any of the Securities are outstanding (other than Subordinated
Securities), the Company will not itself, and it will not permit any Restricted
Subsidiary to, enter into any arrangement relating to property now owned or
hereafter acquired whereby either the Company transfers, or any Restricted
Subsidiary transfers, such property to a Person and either the Company or any
Restricted Subsidiary leases it back from such Person (a “Sale/Leaseback
Transaction”) with respect to any Principal Property, whether now owned or
hereafter acquired by the Company or any Restricted Subsidiary, unless:


 


20





















 


(i)            the Company or such
Restricted Subsidiary would, at the time of entering into such arrangement, be
able to incur Indebtedness secured by a Mortgage on the Principal Property
involved in the transaction at least equal in amount to the Attributable Debt
with respect to such Sale/Leaseback Transaction, without equally and ratably
securing the Securities of such Series pursuant to Section 4.2; or


 


(ii)           the net proceeds of the
sale of the Principal Property to be leased are at least equal to such
Principal Property’s fair market value, as determined by the Board of
Directors, and the proceeds are applied within 180 days of the effective date
of the Sale/Leaseback Transaction to the purchase, construction, development or
acquisition of assets or to the repayment of Indebtedness of the Company or any
Restricted Subsidiary.


 


(b)           The
restrictions set forth in Section 4.3(a) will not apply to a
Sale/Leaseback Transaction: (i) entered into prior to the date of issuance
of the Securities of such Series; (ii) between the Company and a
Restricted Subsidiary or between Restricted Subsidiaries; (iii) under
which the rent payable pursuant to such lease is to be reimbursed under a
contract with the U.S. Government or any instrumentality or agency thereof; (iv) involving
leases for a period of no longer than three years; or (v) in which the
lease for the property or asset is entered into within 270 days after the date
of acquisition, completion of construction or commencement of full operations
of such property or asset, whichever is latest.


 


(c)           Notwithstanding
the restrictions contained in this Section 4.3, the Company and its
Restricted Subsidiaries, or any of them, may enter into a Sale/Leaseback
Transaction; provided  that at the
time of such transaction, after giving effect thereto, the aggregate amount of
all Attributable Debt with respect to Sale/Leaseback Transactions existing at
such time that could not have been entered into except for the provisions of
this Section 4.3(c), together with the aggregate amount of all outstanding
Indebtedness secured by Mortgages pursuant to Section 4.2(a), does not at
such time exceed 15% of Consolidated Net Assets.


 


(d)           A
Sale/Leaseback Transaction shall not be deemed to result in the creation of a
Mortgage.


 


Section 4.4             Commission Reports.


 


The Company shall, so long as any of the
Securities are outstanding (other than Subordinated Securities):


 


(a)           file with the
Trustee (electronically or in hard copy), within 15 days after the Company
files the same with the Commission, copies of the annual reports and of the
information, documents and other reports (or copies of such portions of any of
the foregoing as the Commission may from time to time by rules and
regulations prescribe) that the Company may be required to file with the
Commission pursuant to Section 13 or 15(d) of the Exchange Act; or,
if the Company is not required to file information, 


 


21





















 


documents or
reports pursuant to either of such Sections, then the Company shall file with
the Trustee and the Commission, in accordance with the rules and
regulations prescribed from time to time by the Commission, such of the
supplementary and periodic information, documents and reports that may be
required pursuant to Section 13 of the Exchange Act in respect of a
security listed and registered on a national securities exchange as may be
prescribed from time to time in such rules and regulations;
notwithstanding anything to the contrary herein, the Trustee shall have no duty
to review such documents for the purposes of determining compliance with any
provision of this Indenture;


 


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


 


(c)           transmit by
mail to all Holders, as their names and addresses appear in the register
kept by the Registrar, within 30 days after the filing thereof with the Trustee, such
summaries of any information, documents and reports required to be filed by the
Company pursuant to Section 4.4(a) or 4.4(b) as may be required
by the rules and regulations prescribed from time to time by the
Commission; provided, however, that the Company will
be deemed to have furnished such information, documents and reports to Holders
if it has filed such information, documents and reports with the Commission
using the EDGAR filing system and such information, documents and reports are
publicly available via EDGAR.


 


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


 


Section 4.5             Compliance
Certificate. The Company shall, so long as any of the Securities are
outstanding, deliver to the Trustee, within 120 days after the end of each
fiscal year of the Company, an Officers’ Certificate stating whether or not to
the knowledge of the signers thereof the Company is in default in the
performance and observance of any of the terms, provisions and conditions
hereof (without regard to any period of grace or requirement of notice provided
hereunder), and if a Default or Event of Default shall have occurred,
specifying all such Defaults or Events of Default and the nature and status
thereof of which they may have knowledge.


 


The Company shall, so long as any of the
Securities are outstanding, deliver to the Trustee, within 30 days after
becoming aware of any Default or Event of Default, an Officers’ Certificate
specifying such Default or Event of Default and what action the Company is
taking or proposes to take with respect thereto.


 


22

















 


Section 4.6             Corporate
Existence. Except
as otherwise permitted by Article V, the Company shall do or cause to be
done all things necessary to preserve and keep in full force and effect its
corporate existence.


 


ARTICLE V


 


SUCCESSORS


 


Section 5.1             When Company May Merge,
Etc. The Company shall not consolidate with, or sell, lease, convey or
otherwise transfer all or substantially all of the Company’s assets to, or
merge with or into, any other Person or entity, unless:


 


(a)           if
the Company shall consolidate with, or sell, lease, convey or otherwise
transfer all or substantially all of the Company’s assets to, or merge into,
another Person, the Person to be formed from such consolidation or merger, or
the Person that received the transfer of the assets, is organized and validly
existing under the laws of any jurisdiction in the United States of America,
any state thereof or the District of Columbia, and shall expressly assume, by a
Supplemental Indenture, executed and delivered to the Trustee, in form
satisfactory to the Trustee, the due and punctual payment of the principal of
and interest on all the Securities and the performance or observance of every
covenant of this Indenture on the part of the Company to be performed or
observed;


 


(b)           immediately
after giving effect to such transaction, no Event of Default with respect to
the Securities of any Series, and no event that, after notice or lapse of time
or both, would become an Event of Default with respect to the Securities of
such Series, shall have happened and be continuing; and


 


(c)           the
Company has delivered to the Trustee an Officers’ Certificate and an Opinion of
Counsel, each stating that such consolidation, merger, conveyance or transfer
and, if a Supplemental Indenture is required in connection with such
transaction, such Supplemental Indenture, comply with this Article V and
that all conditions precedent herein provided for relating to such transaction
have been complied with.


 


Section 5.2             Successor
Person Substituted. Upon any consolidation of the Company with, or merger
by the Company into, any other Person or sale, conveyance, transfer or lease of
the properties and assets of the Company substantially as an entirety in
accordance with Section 5.1, the successor Person formed by such
consolidation or into which the Company is merged or to which such conveyance,
transfer or lease is made shall succeed to, and be substituted for, and may
exercise every right and power of, the Company under this Indenture with the
same effect as if such successor Person had been named as the Company herein,
and thereafter, except in the case of a lease of all or substantially all of
the Company’s assets, the predecessor Person shall not be relieved from its
obligation to pay the principal of and interest on the Securities.


 


23

















 


ARTICLE VI


 


DEFAULTS AND REMEDIES


 


Section 6.1             Events
of Default. The term “Event of Default,” wherever used herein with
respect to the Securities of any Series, means any one of the following events,
unless in the Board Resolution, Officers’ Certificate or Supplemental Indenture
establishing the Securities of such Series, it is provided that the Securities
of such Series shall not have the benefit of such Event of Default:


 


(a)           default in the payment of any interest
on any Security of such Series when it becomes due and payable, and
continuance of such default for a period of 30 days; or


 


(b)           default in the payment of principal of
any Security of such Series at its Maturity, including at the Stated
Maturity, upon redemption or required repurchase or by declaration of
acceleration thereof; or


 


(c)           default in the performance or breach of
any covenant or warranty of the Company in this Indenture (other than a
covenant or warranty for which the consequences of nonperformance or breach are
addressed elsewhere in this Section 6.1 and other than a covenant or
warranty that has been included in this Indenture solely for the benefit of the
Securities of a Series other than such Series), which default continues
uncured for a period of 90 days after there has been given, by registered or
certified mail, to the Company by the Trustee or to the Company and the Trustee
by the Holders of at least 25% in principal amount of the outstanding
Securities of such Series a written notice specifying such default or
breach and requiring it to be remedied and stating that such notice is a “Notice
of Default” hereunder; or


 


(d)           (i) a
failure to make any payment at Maturity, including any applicable grace period,
on any of the Company’s Indebtedness in an amount in excess of $50,000,000 and
continuance of this failure to pay or (ii) a default on any of the Company’s
Indebtedness, which default results in the acceleration of Indebtedness in an
amount in excess of $50,000,000 without this Indebtedness having been
discharged or the acceleration having been cured, waived, rescinded or
annulled, in the case of clause (i) or (ii) above, for a period of 30
days or more after written notice thereof to the Company by the Trustee or to
the Company and the Trustee by the Holders of not less than 25% in principal
amount of outstanding Securities of such Series; provided,
however, that if the failure, default or
acceleration referred to in clause (i) or (ii) above shall cease or
be cured, waived, rescinded or annulled, then such Event of Default shall be
deemed cured; or


 


(e)           the Company, pursuant to or within the
meaning of any Bankruptcy Law, (i) commences a voluntary case, (ii) consents
to the entry of an order for relief against it in an involuntary case, (iii) consents
to the appointment of a Custodian of it or for all or substantially all of its
property, (iv) makes a general assignment for the benefit of its creditors
or (v) generally is unable to pay its debts as the same become due or the
taking of corporate action by the Company in furtherance of such action; or


 


24





















 


(f)            a court of competent jurisdiction enters
an order or decree under any Bankruptcy Law that (i) is for relief against
the Company in an involuntary case, (ii) appoints a Custodian of the
Company or for all or substantially all of its property or (iii) orders
the liquidation of the Company, and such order or decree remains unstayed and
in effect for 90 days; or


 


(g)           any other Event of Default provided with
respect to Securities of such Series, which is specified in a Board Resolution,
an Officers’ Certificate or a Supplemental Indenture, in accordance with Section 2.2(r).


 


The
foregoing will constitute Events of Default whatever the reason for any such
Event of Default and whether it is voluntary or involuntary or is 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.


 


The term “Bankruptcy Law” means Title 11
of the U.S. Code or any similar federal or state law for the relief of debtors.
The term “Custodian” means any receiver, trustee, assignee, liquidator
or similar official under any Bankruptcy Law.


 


Section 6.2             Acceleration
of Maturity; Rescission and Annulment. If an Event of Default with respect
to Securities of any Series outstanding at the time such Even of Default
occurs and is continuing (other than an Event of Default referred to in Section 6.1(e) or
6.1(f)), then in every such case the Trustee or the Holders of not less than
25% in aggregate principal amount of the outstanding Securities of such Series may
declare the entire principal amount (or, if any Securities of such Series are
Discount Securities, such portion of the principal amount as may be specified
in the terms of the Securities of such Series) of and accrued but unpaid
interest, if any, on all of the Securities of such Series to be due and
payable immediately, by a notice in writing to the Company (and to the Trustee
if given by Holders), and upon any such declaration such principal amount (or
specified amount) and accrued but unpaid interest, if any, shall become
immediately due and payable. If an Event of Default specified in Section 6.1(e) or
6.1(f) shall occur, the principal amount (or specified amount) of and
accrued but unpaid interest, if any, on all outstanding Securities shall ipso
facto become and be immediately due and payable without any declaration or
other act on the part of the Trustee or any Holder.


 


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


 


(a)           the
Company has paid or deposited with the Trustee a sum sufficient to pay in the
currency or currency unit in which the Securities of such Series are
payable:


 


(i)            all overdue interest
on all the Securities of such Series;


 


(ii)           the principal of any
Securities of such Series that have become due otherwise than by such
declaration of acceleration and interest thereon from the 


 


25





















 


date such principal
became due at a rate per annum equal to the rate borne by the Securities of
such Series, to the extent that the payment of such interest shall be legally
enforceable;


 


(iii)          to the extent that
payment of such interest is lawful, interest upon overdue interest at a rate
per annum equal to the rate borne by the Securities of such Series; and


 


(iv)          all sums paid or
advanced by the Trustee hereunder and the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel and all other
amounts due to the Trustee under Section 7.7; and


 


(b)           all
Events of Default with respect to the Securities of such Series, other than the
nonpayment of the principal of the Securities of such Series that has
become due solely by such acceleration, have been cured or waived as provided
in Section 6.13. No such rescission shall affect any subsequent Default or
impair any right consequent thereon.


 


Section 6.3             Collection
of Indebtedness and Suits for Enforcement by Trustee. The Company covenants
that if:


 


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


 


(b)           default is made in the payment of
principal of any Security of such Series at Maturity thereof, upon
optional redemption or required repurchase, upon declaration of acceleration or
otherwise,


 


then the Company will, upon demand of
the Trustee, pay to the Trustee, for the benefit of the Holders of such
Securities, the whole amount then due and payable on such Securities for
principal and interest and, to the extent that payment of such interest shall
be legally enforceable, interest on any overdue principal and any overdue
interest at the rate or rates prescribed therefor in such Securities 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 amounts
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, may prosecute such proceeding to judgment or final
decree and may enforce the same against the Company or any other obligor upon
such Securities and collect the moneys adjudged or deemed to be payable in the
manner provided by law out of the property of the Company or any other obligor
upon such Securities, wherever situated.


 


If an Event of Default with respect to any
Securities of any Series occurs and is continuing, the Trustee may in its
discretion proceed to protect and enforce its rights and the rights of the
Holders of Securities of such Series by such appropriate judicial
proceedings as the Trustee shall deem most effectual to protect and enforce any
such rights, whether for the specific 


 


26

















 


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


 


(a)           to file and prove a claim for the whole
amount of principal and interest owing and unpaid in respect of the Securities
and to file such other papers or documents as may be necessary or advisable in
order to have the claims of the Trustee (including any claim for the reasonable
compensation, expenses, disbursements and advances of the Trustee, its agents
and counsel) and of the Holders allowed in such judicial proceeding; and


 


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


 


and any custodian, receiver, assignee,
trustee, liquidator, sequestrator or other similar official in any such
judicial proceeding is hereby authorized by each Holder 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 7.7.


 


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


 


Section 6.5             Trustee
May Enforce Claims Without Possession of Securities. All rights of
action and claims under this Indenture or the Securities may be prosecuted and
enforced by the Trustee without the possession of any of the Securities or the
production thereof in any proceeding relating thereto, and any such proceeding
instituted by the Trustee shall be brought in its own name as trustee of an
express trust, and any recovery 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 Securities in respect of which such judgment has been recovered.


 


Section 6.6             Application
of Money Collected. Any money collected by the Trustee pursuant to this Article VI
shall be applied in the following order, at the date or dates fixed by the
Trustee and, in case of the distribution of such money on account of principal
or interest, 


 


27

















 


upon presentation of the Securities and the notation
thereon of the payment if only partially paid and upon surrender thereof if
fully paid:


 


(a)           First: To the payment of all amounts due
the Trustee under Section 7.7; and


 


(b)           Second: To the payment of the amounts
then due and unpaid for principal of and interest on the Securities in respect
of which or for the benefit of which such money has been collected, ratably,
without preference or priority of any kind, according to the amounts due and
payable on such Securities for principal and interest, respectively; and


 


(c)           Third: To the Company.


 


Section 6.7             Limitation
on Suits. No Holder of any Security of any Series shall have any right
to institute any proceeding, judicial or otherwise, with respect to this
Indenture, or for the appointment of a receiver or trustee, or for any other
remedy hereunder, unless:


 


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


 


(b)           the Holders of at least 25% in principal
amount of the outstanding Securities of such Series shall have made
written request to the Trustee to institute proceedings in respect of such
Event of Default in its own name as Trustee hereunder;


 


(c)           such Holder or Holders have offered to
the Trustee reasonable security or indemnity against the costs, expenses and
liabilities that may be incurred by it in compliance with such request;


 


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


 


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


 


it being understood and intended that no
one or more of such Holders shall have any right in any manner whatsoever 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 such Holders.


 


Section 6.8             Unconditional
Right of Holders to Receive Principal and Interest. Notwithstanding any
other provision in this Indenture, the Holder of any Security shall have the
right, which is absolute and unconditional, to receive payment of the principal
of and interest, if any, on such Security on the Stated Maturity or Stated
Maturities expressed in such Security (or, in the case of redemption, on the
date of such redemption) and to institute suit for the 


 


28

















 


enforcement of any such payment, and such rights shall
not be impaired without the consent of such Holder.


 


Section 6.9             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 6.10           Rights
and Remedies Cumulative. Except as otherwise provided with respect to the
replacement or payment of mutilated, destroyed, lost or stolen Securities in Section 2.8,
no right or remedy herein conferred upon or reserved to the Trustee or to 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, to the extent permitted by
law, prevent the concurrent assertion or employment of any other appropriate
right or remedy.


 


Section 6.11           Delay
or Omission Not Waiver. No delay or omission of the Trustee or of any
Holder of any Securities to exercise any right or remedy accruing upon any
Event of Default shall impair any such right or remedy or constitute a waiver
of any such Event of Default or an acquiescence therein. Every right and remedy
given by this Article VI 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 6.12           Control
by Holders. The Holders of a majority in principal amount of the
outstanding Securities of any Series shall have the right to direct the
time, method and place of conducting any proceeding for any remedy available to
the Trustee, or exercising any trust or power conferred on the Trustee, with
respect to the Securities of such Series, provided that:


 


(a)           such
direction shall not be in conflict with any rule of law or with this
Indenture or expose the Trustee in personal liability;


 


(b)           the
Trustee may take any other action deemed proper by the Trustee that is not
inconsistent with such direction; and


 


(c)           subject
to the provisions of Section 6.1, the Trustee shall have the right to
decline to follow such direction if a Responsible Officer or Responsible
Officers of the Trustee shall, in good faith, determine that the proceeding so
directed would be unjustly prejudicial to the Holders not joining in any such
direction or would expose the Trustee to personal liability.


 


Section 6.13           Waiver
of Past Defaults. Subject to Section 6.2, the Holders of not less than
a majority in principal amount of the outstanding Securities of any Series may
on behalf of the Holders of all the Securities of such Series waive any
past Default hereunder with respect to 


 


29

















 


such Series and its consequences, except a
default (i) in the payment of the principal of or interest on any Security
of such Series (provided, however,
that the Holders of a majority in principal amount of the outstanding
Securities of any Series may rescind and annul a declaration of
acceleration and its consequences, including any default in such payment that
has become due solely by such declaration of acceleration) or (ii) in
respect of a covenant or provision hereof that cannot be modified or amended
without the consent of the Holder of each outstanding Security of such Series affected.
Upon any such waiver, such Default shall cease to exist, and any Event of
Default arising therefrom shall be deemed to have been cured, for every purpose
of this Indenture; but no such waiver shall extend to any subsequent or other
Default or impair any right consequent thereon.


 


Section 6.14           Undertaking
for Costs. All parties to this Indenture agree, and each Holder of any
Security by such Holder’s acceptance thereof shall be deemed to have agreed,
that any court may in its discretion require, in any suit for the enforcement
of any right or remedy under this Indenture, or in any suit against the Trustee
for any action taken, suffered or omitted by it as Trustee, the filing by any
party litigant in such suit of an undertaking to pay the costs of such suit,
and that such court may in its discretion assess reasonable costs, including
reasonable attorneys’ fees, against any party litigant in such suit, having due
regard to the merits and good faith of the claims or defenses made by such
party litigant; but the provisions of this Section 6.14 shall not apply to
any suit instituted by the Company, to any suit instituted by the Trustee, to
any suit instituted by any Holder, or group of Holders, holding in the
aggregate more than 10% in principal amount of the outstanding Securities of
any Series, or to any suit instituted by any Holder for the enforcement of the
payment of the principal of or interest on any Security on or after the Stated
Maturity or Stated Maturities expressed in such Security (or, in the case of
redemption, on the date of such redemption).


 


ARTICLE VII


 


TRUSTEE


 


Section 7.1             Duties
of Trustee.


 


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


 


(b)           Except during the continuance of an
Event of Default, the Trustee need perform only those duties that are
specifically set forth in this Indenture and no others.


 


(c)           In the absence of bad faith on its part,
the Trustee may conclusively rely, as to the truth of the statements and the
correctness of the opinions expressed therein, upon Officers’ Certificates or
Opinions of Counsel furnished to the Trustee and conforming to the requirements
of this Indenture; provided, however,
in the case of any such Officers’ Certificates or Opinions of Counsel that by
any provisions hereof are specifically required to be furnished to the Trustee,
the Trustee shall examine such 


 


30





















 


Officers’ Certificates and Opinions of
Counsel to determine whether or not they conform to the requirements of this
Indenture.


 


(d)           The Trustee may not be relieved from
liability for its own negligent action, its own negligent failure to act or its
own willful misconduct, except that:


 


(i)            this paragraph does not limit the effect
of Section 7.1(b);


 


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


 


(iii)          the Trustee shall not be liable with respect to any action taken,
suffered or omitted to be taken by it with respect to Securities of any Series in
good faith in accordance with the direction of the Holders of a majority in principal
amount of the outstanding Securities of such Series 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 Securities of such Series.


 


(e)           The permissive rights of the Trustee in
this Indenture shall not be construed as duties.


 


(f)            No provision of this Indenture shall be
deemed to impose any duty or obligation on the Trustee to take or omit to take
any action or suffer any action to be taken or omitted, in the performance of
its duties or obligations under this Indenture, or to exercise any right or
power hereunder, to the extent that taking or omitting to take such action or
suffering such action to be taken or omitted would violate applicable law
binding upon it.


 


(g)           The Trustee may refuse to perform any
duty or exercise any right or power at the request or direction of any Holder
unless such Holder shall have offered to the Trustee reasonable security or
indemnity against the costs, expenses and liabilities that might be incurred by
it in compliance with such request or direction.


 


(h)           The Trustee shall not be liable for
interest on any money received by it except as the Trustee may agree in writing
with the Company. Money held in trust by the Trustee need not be segregated
from other funds except to the extent required by law.


 


(i)            No provision of this Indenture shall
require the Trustee to risk its own funds or otherwise incur any financial liability
in the performance of any of its duties, 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 security or indemnity against such risk is
not reasonably assured to it.


 


(j)            The Paying Agent, the Registrar and any
authenticating agent shall be entitled to the protections, immunities and
standard of care as are set forth in Sections 7.1(a), 7.1(b), 7.1(c), 7.1(d) or
7.1(f) with respect to the Trustee.


 


31














 


Section 7.2                                    Rights
of Trustee.


 


(a)                                 The
Trustee may rely on and shall be protected in acting or refraining from acting
upon any document believed by it to be genuine and to have been signed or
presented by the proper Person. The Trustee need not investigate any fact or
matter stated in the document.


 


(b)                                Before the Trustee acts or refrains from
acting, it may require an Officers’ Certificate. The Trustee shall not be
liable for any action it takes or omits to take in good faith in reliance on
such Officers’ Certificate.


 


(c)                                 The Trustee may act through agents and
shall not be responsible for the misconduct or negligence of any agent
appointed with due care. No Depository shall be deemed an agent of the Trustee,
and the Trustee shall not be responsible for any act or omission by any
Depository.


 


(d)                                The Trustee shall not be liable for any
action it takes or omits to take in good faith that it believes to be
authorized or within its rights or powers, provided that the Trustee’s conduct
does not constitute negligence.


 


(e)                                 The Trustee may consult with counsel of
its selection, and the advice of such counsel or any Opinion of Counsel shall
be full and complete authorization and protection in respect of any action
taken, suffered or omitted by it hereunder without negligence and in good faith
and in reliance thereon.


 


(f)                                   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 of Securities unless such Holders shall
have offered to the Trustee reasonable security or indemnity against the costs,
expenses and liabilities that might be incurred by it in compliance with such
request or direction.


 


(g)                                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, other evidence of
indebtedness or other paper or document, but the Trustee, in its discretion,
may make such further inquiry or investigation into such facts or matters as it
may see fit.


 


(h)                                The Trustee shall not be deemed to have
notice of any Default or Event of Default unless a Responsible Officer of the
Trustee has actual knowledge thereof or unless written notice of any event that
is in fact such a Default is received by the Trustee at the Corporate Trust
Office of the Trustee, and such notice references the Securities generally or
the Securities of a particular Series and this Indenture.


 


(i)                                    The permissive rights of the Trustee
enumerated herein shall not be construed as duties.


 


(j)                                     Any
request or direction of the Company mentioned herein shall be sufficiently
evidenced by a Company Request or Company Order (other than delivery of 


 


32

















 


any Security to
the Trustee for authentication and delivery pursuant to Section 303, which
shall be sufficiently evidenced as provided therein) and any resolution of the
Board of Directors of the Company may be sufficiently evidenced by a Board
Resolution.


 


(k)                                 The
Trustee may employ or retain such counsel, accountants, appraisers or other
experts or advisers as it may reasonably require for the purpose of determining
and discharging its rights and duties hereunder and shall not be responsible
for any misconduct on the part of any of them.


 


(l)                                    The
rights, privileges, protections, immunities and benefits given to the Trustee,
including its right to be indemnified, are extended to, and shall be
enforceable by, the Trustee in each of its capacities hereunder and each agent,
custodian and other Person employed to act hereunder.


 


(m)                              The
Trustee may request that the Company deliver an Officers’ Certificate setting
forth the names of individuals or titles of officers authorized at such time to
take specified actions pursuant to this Indenture, which Officers’ Certificate
may be signed by any person authorized to sign an Officers’ Certificate,
including any person specified as so authorized in any such Officers’ Certificate
previously delivered and not superseded.


 


(n)                                In no event shall the Trustee be
responsible or liable for special, indirect, or consequential loss or damage of
any kind whatsoever (including loss of profit) irrespective of whether or not
the Trustee has been advised of the likelihood of such loss or damage and
regardless of the form of action.


 


Section 7.3                                    Individual
Rights of Trustee. The Trustee
in its individual or any other capacity may become the owner or pledgee of
Securities and may otherwise deal with the Company or an Affiliate of the
Company with the same rights it would have if it were not Trustee. Any Agent
may do the same with like rights. The Trustee is also subject to Sections 7.10
and 7.11.


 


Section 7.4                                    Trustee’s
Disclaimer. The Trustee makes no representation as to the validity or
adequacy of this Indenture or the Securities, it shall not be accountable for
the Company’s use of the proceeds from the Securities, and it shall not be
responsible for any statement in the Securities other than its authentication.


 


Section 7.5                                    Notice
of Defaults. If a Default or Event of Default occurs and is continuing with
respect to the Securities of any Series and a Responsible Officer of the
Trustee has notice thereof, the Trustee shall mail to each Holder of the
Securities of such Series and, if any Bearer Securities are outstanding,
publish on one occasion in an Authorized Newspaper, notice of such Default or
Event of Default within 90 days after it occurs or, if later, after a
Responsible Officer of the Trustee has notice of such Default or Event of
Default. Except in the case of a Default or Event of Default in payment of
principal of or interest on any Security of any Series, the Trustee may
withhold the notice if and so long as its corporate trust committee or a
committee of its Responsible Officers in good faith determines that withholding
the notice is in the interests of Holders of such Series.


 


33

















 


Section 7.6                                    Reports
by Trustee to Holders. Within 60 days after May 15 in each year, the
Trustee shall transmit by mail to all Holders, as their names and addresses
appear on the register kept by the Registrar, and, if any Bearer Securities are
outstanding, publish in an Authorized Newspaper, a brief report dated as of
such May 15, in accordance with, and to the extent required under, Section 313
of the TIA.


 


A copy of each report
at the time of its mailing to Holders of any Series shall be filed with
the Commission and each stock exchange on which the Securities of such Series are
listed. The Company shall promptly notify the Trustee when Securities of any Series are
listed on any stock exchange.


 


Section 7.7                                    Compensation
and Indemnity. The Company shall pay to the Trustee from time to time
compensation for its services as the Company and the Trustee shall from time to
time agree upon in writing. The Trustee’s compensation shall not be limited by
any law on compensation of a trustee of an express trust. The Company shall
reimburse the Trustee upon request for all reasonable out-of-pocket expenses
incurred by it. Such expenses shall include the reasonable compensation and
expenses of the Trustee’s agents and counsel.


 


The Company shall
indemnify each of the Trustee and any predecessor Trustee (including the cost
of defending itself) against any loss, liability or expense, including taxes
(other than taxes based upon, measured by or determined by the income of the
Trustee) incurred by it except as set forth in the next paragraph in the
performance of its duties under this Indenture as Trustee or Agent. The Trustee
shall notify the Company promptly of any claim for which it may seek indemnity.
The Company shall defend the claim and the Trustee shall cooperate in the
defense. The Trustee may have one separate counsel and the Company shall pay
the reasonable fees and expenses of such counsel. The Company need not pay for
any settlement made without its consent, which consent shall not be
unreasonably withheld. This indemnification shall apply to officers, directors,
employees, shareholders and agents of the Trustee.


 


The Company need not
reimburse any expense or indemnify against any loss or liability incurred by
the Trustee or by any officer, director, employee, shareholder or agent of the
Trustee through negligence or bad faith.


 


To secure the Company’s
payment obligations in this Section 7.7, the Trustee shall have a lien
prior to the Securities of any Series on all money or property held or
collected by the Trustee, except that held in trust to pay principal of and
interest on particular Securities of such Series.


 


When the Trustee incurs
expenses or renders services after an Event of Default specified in Section 6.1(e) or
6.1(f) occurs, the expenses and the compensation for the services are
intended to constitute expenses of administration under any Bankruptcy Law.


 


The provisions of this Section 7.7
shall survive the resignation or removal of the Trustee and the termination or
satisfaction of this Indenture.


 


34

















 


Section 7.8                                    Replacement
of Trustee. A resignation or removal of the Trustee and appointment of a
successor Trustee shall become effective only upon the successor Trustee’s
acceptance of appointment as provided in this Section 7.8.


 


The Trustee may resign
with respect to the Securities of one or more Series by so notifying the
Company at least 30 days prior to the date of the proposed resignation. The
Holders of a majority in principal amount of the Securities of any Series may
remove the Trustee with respect to such Series by so notifying the Trustee
and the Company. The Company may remove the Trustee with respect to Securities
of one or more Series if:


 


(a)                                 the Trustee fails to comply with Section 7.10;


 


(b)                                the Trustee is adjudged bankrupt or
insolvent or an order for relief is entered with respect to the Trustee under
any Bankruptcy Law;


 


(c)                                 a Custodian or public officer takes
charge of the Trustee or its property; or


 


(d)                                the Trustee becomes incapable of acting.


 


If the Trustee resigns
or is removed or if a vacancy exists in the office of Trustee for any reason,
the Company shall promptly appoint a successor Trustee. Within one year after
the successor Trustee takes office, the Holders of a majority in principal
amount of the then outstanding Securities may appoint a successor Trustee to
replace the successor Trustee appointed by the Company.


 


If a successor Trustee
with respect to the Securities of any one or more Series does not take
office within 60 days after the retiring Trustee resigns or is removed, the
retiring Trustee, the Company or the Holders of at least a majority in
principal amount of the Securities of the applicable Series may petition
any court of competent jurisdiction for the appointment of a successor Trustee.


 


A successor Trustee
shall deliver a written acceptance of its appointment to the retiring Trustee
and to the Company. Immediately after that, the retiring Trustee shall transfer
all property held by it as Trustee to the successor Trustee subject to the lien
provided for in Section 7.7, the resignation or removal of the retiring
Trustee shall become effective, and the successor Trustee shall have all the
rights, powers and duties of the Trustee with respect to the Securities of each
Series for which it is acting as Trustee under this Indenture. A successor
Trustee shall mail a notice of its succession to each Holder of each such Series and,
if any Bearer Securities are outstanding, publish such notice on one occasion
in an Authorized Newspaper. Notwithstanding replacement of the Trustee pursuant
to this Section 7.8, the Company’s obligations under Section 7.7
shall continue for the benefit of the retiring Trustee with respect to expenses
and liabilities incurred by it prior to such replacement.


 


Section 7.9                                    Successor
Trustee by Merger, etc. If the Trustee consolidates with, merges or
converts into, or transfers all or substantially all of its corporate trust
business to, another corporation, the successor corporation without any further
act shall be the successor Trustee.


 


35

















 


Section 7.10                              Eligibility;
Disqualification. This Indenture shall always have a Trustee who satisfies
the requirements of Section 310(a)(1), 310(a)(2) and 310(a)(5) of
the TIA. The Trustee shall always have a combined capital and surplus of at
least $25,000,000 as set forth in its most recent published annual report of
condition. The Trustee shall comply with Section 310(b) of the TIA.


 


Section 7.11                              Preferential
Collection of Claims Against Company. The Trustee is subject to Section 311(a) of
the TIA, excluding any creditor relationship listed in Section 311(b) of
the TIA. A Trustee who has resigned or been removed shall be subject to Section 311(a) of
the TIA to the extent indicated.


 


ARTICLE VIII


 


SATISFACTION AND DISCHARGE;
DEFEASANCE


 


Section 8.1                                    Option
to Effect Legal Defeasance or Covenant Defeasance. The Company may,
at its option evidenced by a Board Resolution or an Officers’ Certificate, at
any time, with respect to the Securities of any Series, elect to have either Section 8.2
or 8.3 be applied to all of the outstanding Securities of such Series upon
compliance with the conditions set forth below in this Article VIII.


 


Section 8.2                                    Legal
Defeasance and Discharge. Upon the Company’s exercise under Section 8.1
of the option applicable to this Section 8.2, the Company shall be deemed
to have been discharged from its obligations with respect to all of the
outstanding Securities of the particular Series on the date the conditions
set forth below in Section 8.4 are satisfied (“Legal Defeasance”).
For this purpose, such Legal Defeasance means that the Company shall be deemed
to have paid and discharged all the obligations relating to, and to have
satisfied all of its obligations under, the outstanding Securities of such Series and
this Indenture and cured all then existing Events of Default (and the Trustee,
on written demand of and at the expense of the Company, shall execute proper
instruments acknowledging the same), except that the following shall survive
until otherwise terminated or discharged hereunder (and the Securities of such Series shall
thereafter be deemed to be “outstanding” only for the purposes of the Sections
of this Indenture referred to below in this Section 8.2):


 


(a)                                 the rights of
Holders of outstanding Securities of such Series, if any, to receive payments
in respect of the principal of and interest, if any, on such Securities when
such payments are due or on the date of any redemption solely out of the trust
created pursuant to this Indenture;


 


(b)                                the Company’s
obligations with respect to such Securities concerning issuing temporary
Securities of such Series, or, where relevant, registration of such Securities,
mutilated, destroyed, lost or stolen Securities of such Series and the
maintenance of an office or agency for payment and money for the payments held
in trust;


 


36

















 


(c)                                 the rights,
powers, trusts, duties and immunities of the Trustee, and the Company’s
obligations in connection therewith and with respect to the Company’s
obligations to the Trustee under Section 7.7; and


 


(d)                                this Article VIII.


 


Subject to compliance with this Article VIII, the
Company may exercise its option under this Section 8.2 notwithstanding the
prior exercise of its option under Section 8.3 with respect to the
Securities of any Series. Following such Legal Defeasance, payment of the
Securities of such Series may not be accelerated because of an Event of
Default.


 


Section 8.3                                    Covenant
Defeasance. Upon the Company’s exercise under Section 8.1 of the
option applicable to this Section 8.3, the Company shall be released from
any obligations under the covenants contained in Sections 4.2, 4.3, 4.4, 4.5
and 5.1 with respect to the outstanding Securities of a particular Series,
along with any additional covenants contained in such Security or any
Supplemental Indenture in connection therewith, on and after the date the
conditions set forth below in Section 8.4 are satisfied (“Covenant
Defeasance”), and the Securities of such Series shall thereafter be
deemed not “outstanding” for the purposes of any direction, waiver, consent or
declaration or act of Holders (and the consequences of any thereof) in
connection with such covenants, but shall continue to be deemed “outstanding”
for all other purposes hereunder (it being understood that such Securities
shall not be deemed outstanding for accounting purposes). For this purpose,
such Covenant Defeasance means that, with respect to the outstanding Securities
of such Series appertaining thereto, the Company may omit to comply with
and shall have no liability in respect of any term, condition or limitation set
forth in any such covenant, whether directly or indirectly, by reason of any
reference elsewhere herein to any such covenant or by reason of any reference
in any such covenant to any other provision herein or in any other document
but, except as specified above, the remainder of this Indenture and the
Securities of such Series shall be unaffected thereby. Following such
Covenant Defeasance, payment of the Securities of such Series may not be
accelerated because of an Event of Default pursuant to Section 6.1(c) (except
for a default with respect to Section 5.1), 6.1(d) or 6.1(g).


 


Section 8.4                                    Conditions
to Legal or Covenant Defeasance. As set forth below, the following shall be
the conditions to the application of either Section 8.2 or 8.3 to the
outstanding Securities of any Series:


 


(a)                                                                      in
the case of either Legal Defeasance or Covenant Defeasance, the Company must
irrevocably deposit, or cause to be irrevocably deposited, with the Trustee, in
trust, for the benefit of the Holders of the Securities of such Series, cash in
the currency or currency unit in which the Securities of such Series are
payable, Government Obligations, or a combination thereof in such amounts as
will be sufficient, in the opinion of an internationally recognized firm of
independent public accountants, to pay the principal of and interest, if any,
due on the outstanding Securities of such Series at the Maturity, or on
the applicable date of any redemption, as the case may be;


 


(b)                                 in
the case of Legal Defeasance, the Company shall have delivered to the Trustee
for the Securities of such Series an Opinion of Counsel in the United
States reasonably acceptable to such Trustee confirming that, subject to
customary assumptions 


 


37

















 


and exclusions, (i) the Company has received
from, or there has been published by, the U.S. Internal Revenue Service a
ruling or (ii) since the date of issuance of the Securities of such
Series, there has been a change in the applicable U.S. federal income tax law,
in either case to the effect that, and based thereon such Opinion of Counsel in
the United States confirming that, subject to customary assumptions and
exclusions, the Holders of the outstanding Securities of such Series will
not recognize income, gain or loss for U.S. federal income tax purposes as a
result of such Legal Defeasance and will be subject to U.S. federal income tax
on the same amounts, in the same manner and at the same times as would have
been the case if such Legal Defeasance had not occurred;


 


(c)                                 in
the case of Covenant Defeasance, the Company shall have delivered to the
Trustee for the Securities of such Series an Opinion of Counsel in the
United States reasonably acceptable to such Trustee confirming that, subject to
customary assumptions and exclusions, the Holders of the outstanding Securities
of such Series will not recognize income, gain or loss for U.S. federal
income tax purposes as a result of such Covenant Defeasance and will be subject
to such 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;


 


(d)                                no
Event of Default or event that with the giving of notice or the lapse of time,
or both, would become an Event of Default with respect to the Securities of
such Series shall have occurred and be continuing on the date of such
deposit and no Event of Default under Section 6.1(e) or 6.1(f) shall
have occurred and be continuing on the 91st day after such date;


 


(e)                                 such
Legal Defeasance or Covenant Defeasance shall not result in a breach or
violation of, or constitute a default under, any material agreement or
instrument to which the Company is a party or by which the Company is bound;
and


 


(f)                                   the
Company shall have delivered to the Trustee an Officers’ Certificate and an
Opinion of Counsel in the United States (which Opinion of Counsel may be
subject to customary assumptions and exclusions) each stating that all
conditions precedent provided for or relating to the Legal Defeasance or the
Covenant Defeasance, as the case may be, have been complied with.


 


Section 8.5                                    Satisfaction
and Discharge of Indenture. This Indenture will, upon Company Request, be
discharged and will cease to be of further effect as to all of the Securities
of a particular Series issued hereunder when either: (a) all of the
Securities of such Series theretofore authenticated and delivered (except (i) lost,
stolen or destroyed Securities that have been replaced or paid as provided in Section 2.8
and (ii) the Securities for whose payment money has theretofore been
deposited in trust and thereafter repaid to the Company or discharged from such
trust, as provided in the last paragraph of Section 8.9) have been
delivered to the Trustee for cancellation; or (b) (i) all of the
Securities of such Series not theretofore delivered to the Trustee for
cancellation are due and payable by their terms within one year or have become
due and payable by reason of the making of a notice of redemption and the
Company has irrevocably deposited or caused to be deposited with the Trustee as
trust funds in trust an amount of cash in any combination of currency or
currency unit in which the Securities of such Series are payable, 


 


38

















 


U.S. Government Obligations,
or a combination thereof in such amounts as will be sufficient to pay and
discharge the entire indebtedness on the Securities of such Series not
theretofore delivered to the Trustee for cancellation for principal and accrued
but unpaid interest, if any, to Maturity or the date of such redemption, as the
case may be, (ii) the Company has paid, or caused to be paid, all sums
payable by it under this Indenture and (iii) the Company has delivered
irrevocable instructions to the Trustee under this Indenture to apply the
deposited money toward the payment of the Securities of such Series at the
Stated Maturity or the date of such redemption, as the case may be. In
addition, in the case of clause (a) or (b) above, the Company must
deliver an Officers’ Certificate and an Opinion of Counsel to the Trustee
stating that all conditions precedent to satisfaction and discharge have been
satisfied.


 


Section 8.6                                    Survival
of Certain Obligations. Notwithstanding the satisfaction and
discharge of this Indenture and of the Securities of any Series referred
to in Section 8.1, 8.2, 8.4, or 8.5, the respective obligations of the
Company and the Trustee under Sections 2.3, 2.6, 2.7, 2.8, 2.12, 6.8, 8.7, 8.8,
8.9 and 8.10 and Article VII shall survive with respect to the Securities
of such Series until the Securities of such Series are no longer
outstanding, and thereafter the obligations of the Company and the Trustee
under Sections 8.7, 8.8, 8.9 and 8.10 shall survive. Nothing contained in this Article VIII
shall abrogate any of the obligations or duties of the Trustee under this
Indenture.


 


Section 8.7                                    Acknowledgment
of Discharge by Trustee. Subject to Section 8.10, after (a) the
conditions of Section 8.4 or 8.5 have been satisfied with respect to the
Securities of any Series, (b) the Company has paid or caused to be paid
all other sums payable hereunder by the Company and (c) the Company has
delivered to the Trustee an Officers’ Certificate and an Opinion of Counsel,
each stating that all conditions precedent referred to in clause (a) above
relating to the satisfaction and discharge of this Indenture have been complied
with, the Trustee upon written request shall acknowledge in writing the
discharge of all of the Company’s obligations under this Indenture except for
those surviving obligations specified in this Article VIII.


 


Section 8.8                                    Application
of Trust Moneys. All money and U.S. Government Obligations deposited with the Trustee
pursuant to Section 8.4 or 8.5 in respect of the Securities of such Series shall
be held in trust and applied by it, in accordance with the provisions of the
Securities of such Series and this Indenture, to the payment, either
directly or through any Paying Agent as the Trustee may determine, to the
Holders of the Securities of such Series of all sums due and to become due
thereon for principal and interest, if any, but such money need not be
segregated from other funds except to the extent required by law.


 


The Company shall pay and indemnify the Trustee
against any tax, fee or other charge imposed on or assessed against the
Government Obligations deposited pursuant to Section 8.4 or 8.5 with
respect to the Securities of such Series or the principal and interest
received in respect thereof other than any such tax, fee or other charge that
by law is for the account of the Holders of the outstanding Securities of such
Series.


 


Section 8.9                                    Repayment
to the Company; Unclaimed Money. The Trustee and any Paying Agent for the
Securities of any Series shall promptly pay or return to the Company upon
Company Order any cash or U.S. Government Obligations held by them at any time
that are not 


 


39

















 


required
for the payment of the principal of and interest, if any, on the Securities of
such Series for which cash or U.S. Government Obligations have been
deposited pursuant to Section 8.4 or 8.5.


 


Any money deposited with the Trustee or any Paying
Agent for the Securities of any Series, or then held by the Company, in trust
for the payment of the principal of and interest, if any, on the Security of
any Series and remaining unclaimed for two years after such principal and
interest, if any, has become due and payable shall, unless otherwise required
by mandatory provisions of applicable escheat, or abandoned or unclaimed
property law, be paid to the Company on Company Request or (if then held by the
Company) shall be discharged from such trusts; and the Holder of any such Security
shall, thereafter, as an unsecured general creditor, look only to the Company
for payment thereof, and all liability of the Trustee or such Paying Agent with
respect to such trust money, and all liability of the Company as trustee
thereof, shall thereupon cease; provided, however,
that the Trustee or such Paying Agent, before being required to make any such
repayment may give written notice to the Holder of such Security, 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 written notice, any unclaimed
balance of such money then remaining will, unless otherwise required by
mandatory provisions of applicable escheat, or abandoned or unclaimed property
law, be repaid to the Company, as the case may be.


 


Section 8.10                              Reinstatement.
If the
Trustee or Paying Agent for the Securities of any Series is unable to
apply any cash or U.S. Government Obligations, as applicable, in accordance
with Section 8.2, 8.3, 8.4 or 8.5 by reason of any legal proceeding or by
reason of any order or judgment of any court or governmental authority
enjoining, restraining or otherwise prohibiting such application, the Company’s
obligations under this Indenture and the Securities of such Series shall
be revived and reinstated as though no deposit had occurred pursuant to Section 8.2,
8.3, 8.4 or 8.5 until such time as the Trustee or Paying Agent for the
Securities of such Series is permitted to apply all such cash or U.S.
Government Obligations in accordance with Section 8.2, 8.3, 8.4 or 8.5; provided, however, that if the Company has made any payment
of principal and interest, if any, on any Securities because of the
reinstatement of its obligations, the Company shall be subrogated to the rights
of the Holders of such Securities to receive such payment from the cash or U.S.
Government Obligations, as applicable, held by the Trustee or Paying Agent.


 


ARTICLE IX


 


AMENDMENTS AND WAIVERS


 


Section 9.1                                    Without
Consent of Holders. The Company and the Trustee may amend or supplement
this Indenture or the Securities of one or more Series without the consent
of any Holder:


 


(a)                                 to cure, correct or supplement any
ambiguity, omission, defect or inconsistency as to the Securities of such
Series;


 


(b)                                to comply with Article V;


 


40

















 


(c)                                 to provide for uncertificated Securities
in addition to or in place of certificated Securities;


 


(d)                                to add guarantees or collateral security
with respect to the Securities of such Series;


 


(e)                                 to add covenants of the Company under
this Indenture for the benefit of the Holders of the Securities of such Series or
to surrender any right or power conferred upon the Company as to the Securities
of such Series;


 


(f)                                   to make any change that does not adversely
affect the rights of any Holder of the Securities of such Series in any
material respect;


 


(g)                                to provide for the issuance of and
establish the form and terms and conditions of Securities of any Series as
permitted by this Indenture;


 


(h)                                to change or eliminate any of the
provisions of this Indenture provided that any such change or elimination shall
become effective only when there is no Security outstanding of any Series created
prior to the execution of such amendment or supplement that is adversely
affected by such provision;


 


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


 


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


 


Section 9.2                                    With
Consent of Holders. The Company and the Trustee may enter into a
Supplemental Indenture with the written consent of the Holders of at least a
majority in principal amount of the outstanding Securities of each Series affected
by such Supplemental Indenture (including consents obtained in connection with
a tender offer or exchange offer for the Securities of such Series), for the
purpose of adding any provisions to or changing in any manner or eliminating
any of the provisions of this Indenture or of any Supplemental Indenture or of
modifying in any manner the rights of the Holders of the Securities of such
Series. Except as provided in Section 6.13, the Holders of at least a
majority in principal amount of the outstanding Securities of any Series by
notice to the Trustee (including consents obtained in connection with a tender
offer or exchange offer for the Securities of such Series) may waive compliance
by the Company with any provision of this Indenture or the Securities of such
Series.


 


It shall not be
necessary for the consent of the Holders of Securities under this Section 9.2
to approve the particular form of any proposed Supplemental Indenture or
waiver, but it shall be sufficient if such consent approves the substance
thereof. After a Supplemental Indenture or waiver under this Section 9.2
becomes effective, the Company shall mail to the Holders of Securities affected
thereby and, if any Bearer Securities affected thereby are outstanding, publish
on one occasion in an Authorized Newspaper, a notice briefly describing such
Supplemental Indenture or waiver. Any failure by the Company to mail or publish
such notice, or any defect


 


41

















 


therein, shall not,
however, in any way impair or affect the validity of any such Supplemental
Indenture or waiver.


 


Section 9.3                                    Limitations.
Without the consent of each Holder affected, an amendment or waiver may not:


 


(a)                                 reduce the amount of Securities whose
Holders must consent to an amendment, supplement or waiver;


 


(b)                                reduce the rate of or extend the time
for payment of interest (including default interest) on any Security;


 


(c)                                 reduce the principal of any Security or
change its Maturity, including the Stated Maturity or the date of redemption or
required repurchase thereof;


 


(d)                                reduce the principal amount of Discount
Securities payable upon acceleration of the maturity thereof;


 


(e)                                 make the principal of or interest, if
any, on any Security payable in any currency other than that stated in the
Security;


 


(f)                                   impair
the right of any Holder of Securities to receive payment of principal of and
interest on such Securities on or after the due dates for the payment of such
principal or interest or to institute suit for the enforcement of any payment
on or with respect to such Securities;


 


(g)                                make
any changes that would affect the ranking for the Securities in a manner
adverse to the Holders; or


 


(h)                                make any change in Section 6.8 or
6.13 or this Section 9.3.


 


Section 9.4                                    Compliance
with Trust Indenture Act. Every amendment to this Indenture or the
Securities of one or more Series shall be set forth in a Supplemental
Indenture that complies with the TIA as then in effect.


 


Section 9.5                                    Revocation
and Effect of Consents. Until an amendment is set forth in a Supplemental
Indenture or a waiver becomes effective, a consent to it by a Holder of a
Security is a continuing consent by the Holder and every subsequent Holder of a
Security or portion of a Security that evidences the same debt as the
consenting Holder’s Security, even if notation of the consent is not made on
any Security. However, any such Holder or subsequent Holder may revoke the
consent as to such Holder’s Security or portion of a Security if the Trustee
receives the notice of revocation before the date of such Supplemental
Indenture or the date the waiver becomes effective.


 


Any amendment or waiver
once effective shall bind every Holder of each Series affected by such
amendment or waiver unless it is of the type described in any of clauses (a) through
(g) of Section 9.3. In that case, the amendment or waiver shall bind
each Holder of a Security who has consented to it and every subsequent Holder
of a Security or portion of a Security that evidences the same debt as the
consenting Holder’s Security.


 


42

















 


Section 9.6                                    Notation
on or Exchange of Securities. The Trustee may place an appropriate notation
about an amendment or waiver on any Security of any Series thereafter
authenticated. The Company in exchange for Securities of such Series may
issue and the Trustee shall authenticate upon request new Securities of such Series that
reflect the amendment or waiver.


 


Section 9.7                                    Trustee
Protected. In executing, or accepting the additional trusts created by, any
Supplemental Indenture permitted by this Article IX or the modifications
thereby of the trusts created by this Indenture, the Trustee shall be entitled
to receive, in addition to the documents required by Section 10.4, and
(subject to Section 7.1) 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 shall sign all
Supplemental Indentures, except that the Trustee need not sign any Supplemental
Indenture that adversely affects its rights.


 


ARTICLE X


 


MISCELLANEOUS


 


Section 10.1                              Trust
Indenture Act Controls. If any provision of this Indenture limits,
qualifies or conflicts with another provision that is required or deemed to be
included in this Indenture by the TIA, such required or deemed provision shall
control.


 


Section 10.2                              Notices.
Any notice or communication by the Company or the Trustee to the other, or by a
Holder to the Company or the Trustee, is duly given if in writing and delivered
in Person or mailed by first-class mail:


 


(a)                                 if to the Company:


 


CA, Inc.


One CA Plaza


Islandia, New York 11749-7000


Attention: Treasurer


Telephone: (800) 225-5224


Facsimile: (631) 342-5117


 


with a copy to:


 


CA, Inc.


One CA Plaza


Islandia, New York 11749-7000


Attention: General Counsel


Telephone: (800) 225-5224


Facsimile: (631) 342-4866


 


43

















 


(b)                                if to the Trustee:


 


U.S.
Bank National Association


100
Wall Street


Suite 1600


New
York, New York 10005


Attention:
Corporate Trust Services


Telephone: (212) 361-6173


Facsimile: (212) 361-6153


 


The Company or the
Trustee by notice to the other may designate additional or different addresses
for subsequent notices or communications.


 


Any notice or
communication to a Holder shall be mailed by first-class mail to such Holder’s
address as shown on the register kept by the Registrar and, if any Bearer
Securities are outstanding, published in an Authorized Newspaper. Failure to
mail a notice or communication to a Holder of any Series or any defect in
it shall not affect its sufficiency with respect to other Holders of that or
any other Series.


 


If a notice or
communication is mailed or published in the manner provided above, within the
time prescribed, it is duly given, whether or not the Holder receives it.


 


If the Company mails a
notice or communication to Holders, it shall mail a copy to the Trustee and
each Agent at the same time.


 


Section 10.3                              Communication
by Holders with Other Holders. Holders of any Series may communicate
pursuant to Section 312(b) of the TIA with other Holders of such Series or
any other Series with respect to their rights under this Indenture or the
Securities of such Series or all Series. The Company, the Trustee, the
Registrar and anyone else shall have the protection of Section 312(c) of
the TIA.


 


Section 10.4                              Certificate
and Opinion as to Conditions Precedent. Upon any request or application by
the Company to the Trustee to take any action under this Indenture, the Company
shall furnish to the Trustee:


 


(a)                                 an Officers’ Certificate stating that,
in the opinion of the signers, all conditions precedent, if any, provided for
in this Indenture relating to the proposed action have been complied with; and


 


(b)                                an Opinion of Counsel stating that, in
the opinion of such counsel, all such conditions precedent have been complied
with.


 


Section 10.5                              Statements
Required in Certificate or Opinion. Each certificate or opinion with
respect to compliance with a condition or covenant provided for in this
Indenture (other than a certificate provided pursuant to Section 314(a)(4) of
the TIA) shall comply with the provisions of Section 314(e) of the
TIA and shall include:


 


44

















 


(a)                                 a statement that the Person making such
certificate or opinion has read such covenant or condition;


 


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


 


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


 


(d)                                a statement as to whether or not, in the
opinion of such Person, such condition or covenant has been complied with.


 


Section 10.6                              Rules by
Trustee and Agents. The Trustee may make reasonable rules for action
by or a meeting of Holders of one or more Series. Any Agent may make reasonable
rules and set reasonable requirements for its functions.


 


Section 10.7                              Legal
Holidays. Unless otherwise provided by Board Resolution, Officers’
Certificate or Supplemental Indenture for a particular Series, a “Legal
Holiday” is any day that is not a Business Day. If a payment date is a
Legal Holiday at a place of payment, payment may be made at that place on the
next succeeding day that is not a Legal Holiday, and no interest shall accrue
for the intervening period.


 


Section 10.8                              No
Recourse Against Others. A director, officer, employee or stockholder, as
such, of the Company shall not have any liability for any obligations of the
Company under the Securities or the Indenture or for any claim based on, in
respect of or by reason of such obligations or their creation. Each Holder by
accepting a Security waives and releases all such liability. The waiver and
release are part of the consideration for the issue of the Securities.


 


Section 10.9                              Counterparts.
This Indenture may be executed in any number of counterparts and by the parties
hereto in separate counterparts, each of which when so executed shall be deemed
to be an original and all of which taken together shall constitute one and the
same agreement.


 


Section 10.10                        Governing
Laws. THIS INDENTURE AND THE SECURITIES SHALL BE GOVERNED BY          AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF
THE STATE OF NEW YORK.


 


Section 10.11                        No
Adverse Interpretation of Other Agreements. This Indenture may not be used
to interpret another indenture, loan or debt agreement of the Company or a
Subsidiary of the Company. Any such indenture, loan or debt agreement may not
be used to interpret this Indenture.


 


Section 10.12                        Successors.
All agreements of the Company in this Indenture and the Securities shall bind
its successor. All agreements of the Trustee in this Indenture shall bind its
successor.


 


45

















 


Section 10.13                        Severability.
In case any provision in this Indenture or in the Securities 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 10.14                        Table
of Contents, Headings, Etc. The Table of Contents, Cross-Reference Table,
and headings of the Articles and Sections of this Indenture have been inserted
for convenience of reference only, are not to be considered a part hereof, and
shall in no way modify or restrict any of the terms or provisions hereof.


 


Section 10.15                        Securities
in a Foreign Currency. Unless otherwise specified in a Board Resolution, an
Officers’ Certificate or a Supplemental Indenture delivered pursuant to Section 2.2
with respect to the Securities of a particular Series, whenever for purposes of
this Indenture any action may be taken by the Holders of a specified percentage
in aggregate principal amount of Securities of all Series or all Series affected
by a particular action at the time outstanding and, at such time, there are
outstanding Securities of any Series that are denominated in a coin or
currency other than Dollars, then the principal amount of Securities of such Series that
shall be deemed to be outstanding for the purpose of taking such action shall
be that amount of Dollars that could be obtained for such amount at the Market
Exchange Rate at such time. For purposes of this Section 10.15, “Market
Exchange Rate” shall mean the noon Dollar buying rate in New York City for
cable transfers of that currency as published by the Federal Reserve Bank of
New York. If such Market Exchange Rate is not available for any reason with
respect to such currency, the Company shall use, in its sole discretion and
without liability on its part, such quotation of the Federal Reserve Bank of
New York as of the most recent available date, or quotations from one or more
major banks in The City of New York or in the country of issue of the currency
in question or such other quotations as the Company shall deem appropriate. The
provisions of this paragraph shall apply in determining the equivalent
principal amount in respect of Securities of a Series denominated in
currency other than Dollars in connection with any action taken by Holders of
Securities pursuant to the terms of this Indenture.


 


All decisions and
determinations of the Company regarding the Market Exchange Rate or any
alternative determination provided for in the preceding paragraph shall be in
its sole discretion and shall, in the absence of manifest error, to the extent
permitted by law, be conclusive for all purposes and irrevocably binding upon
all Holders.


 


Section 10.16                        Judgment
Currency. The Company agrees, to the fullest extent that it may effectively
do so under applicable law, that (a) if for the purpose of obtaining
judgment in any court it is necessary to convert the sum due in respect of the
principal of or interest or other amount on the Securities of any Series (the
“Required Currency”) into a currency in which a judgment will be
rendered (the “Judgment Currency”), the rate of exchange used shall be
the rate at which in accordance with normal banking procedures the Trustee
could purchase in The City of New York the Required Currency with the Judgment
Currency on the day on which final unappealable judgment is entered, unless
such day is not a New York Banking Day, then the rate of exchange used shall be
the rate at which in accordance with normal banking procedures the Trustee
could purchase in The City of New York the Required Currency with the Judgment
Currency on the New York Banking Day preceding the day on which final
unappealable judgment is entered and (b) its obligations under this
Indenture to make payments in the Required Currency (i) shall not be
discharged or satisfied by any tender, any recovery pursuant 


 


46

















 


to any judgment (whether or not entered in accordance with clause (a) above),
in any currency other than the Required Currency, except to the extent that
such tender or recovery shall result in the actual receipt, by the payee, of
the full amount of the Required Currency expressed to be payable in respect of
such payments, (ii) shall be enforceable as an alternative or additional
cause of action for the purpose of recovering in the Required Currency the
amount, if any, by which such actual receipt shall fall short of the full
amount of the Required Currency so expressed to be payable and (iii) shall
not be affected by judgment being obtained for any other sum due under this
Indenture. For purposes of the foregoing, “New York Banking Day” means
any day except a Saturday, Sunday or a legal holiday in The City of New York on
which banking institutions are authorized or required by law, regulation or
executive order to close.


 


47

















 


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


 


	
   

  	
  CA, Inc.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ James Hodge

  
	
   

  	
   

  	
  Name: James Hodge

  
	
   

  	
   

  	
  Title: Treasurer

  
	
   

  	
   

  
	
   

  	
  U.S. Bank
  National Association,
  as Trustee

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By

  	
  /s/ Jean Clarke

  
	
   

  	
   

  	
  Name:

  	
  Jean Clarke

  
	
   

  	
   

  	
  Title:

  	
  Assistant Vice President

  
					



 


48