EXHIBIT 4.1


 


 


CS FINANCING CORPORATION


 


SUBORDINATED 5 YEAR NOTES


 










 


INDENTURE


 


DATED AS OF NOVEMBER 7, 2005


 










 


 


U.S. BANK NATIONAL ASSOCIATION


 


AS


 


TRUSTEE


 





















 


TABLE OF CONTENTS


 


	
  ARTICLE 1

  DEFINITIONS AND INCORPORATION BY REFERENCE

  	
   

  
	
   

  	
   

  
	
  Section 1.1. Definitions

  	
   

  
	
  Section 1.2. Other Definitions

  	
   

  
	
  Section 1.3. Incorporation by Reference of
  TIA

  	
   

  
	
  Section 1.4. Rules of Construction

  	
   

  
	
   

  	
   

  
	
  ARTICLE 2

  THE 5 YEAR NOTES

  	
   

  
	
   

  	
   

  
	
  Section 2.1. Form and Dating

  	
   

  
	
  Section 2.2. Terms

  	
   

  
	
  Section 2.3. Execution

  	
   

  
	
  Section 2.4. Registrar and Paying Agent

  	
   

  
	
  Section 2.5. Paying Agent to Hold Money in
  Trust

  	
   

  
	
  Section 2.6. Certificateholder Lists

  	
   

  
	
  Section 2.7. Transfer and Exchange

  	
   

  
	
  Section 2.8. Replacement 5 Year Notes

  	
   

  
	
  Section 2.9. Outstanding 5 Year Notes

  	
   

  
	
  Section 2.10. Treasury 5 Year Notes

  	
   

  
	
  Section 2.11. Temporary 5 Year Notes

  	
   

  
	
  Section 2.12. Cancellation

  	
   

  
	
   

  	
   

  
	
  ARTICLE 3

  REDEMPTION

  	
   

  
	
   

  	
   

  
	
  Section 3.1. Applicability of Article

  	
   

  
	
  Section 3.2. Notices to Trustee

  	
   

  
	
  Section 3.3. Selection of 5 Year Notes to be
  Redeemed

  	
   

  
	
  Section 3.4. Notice of Redemption

  	
   

  
	
  Section 3.5. Effect of Notice of Redemption

  	
   

  
	
  Section 3.6. Deposit of Redemption Price

  	
   

  
	
  Section 3.7. 5 Year Notes Redeemed in Part

  	
   

  
	
  Section 3.8. Redemption if Balance Falls Below
  $5,000

  	
   

  
	
   

  	
   

  
	
  ARTICLE 4

  COVENANTS

  	
   

  
	
   

  	
   

  
	
  Section 4.1. Payment of 5 Year Notes

  	
   

  
	
  Section 4.2. SEC Reports

  	
   

  
	
  Section 4.3. Compliance Certificate

  	
   

  
	
  Section 4.4. Usury Laws

  	
   

  
	
  Section 4.5. Money for 5 Year Note Payments to
  be Held in Trust

  	
   

  
	
  Section 4.6. Continued Existence

  	
   

  



 


i





















 


	
  ARTICLE 5

  SUCCESSORS

  	
   

  
	
   

  	
   

  
	
  Section 5.1. When Company May Merge, Etc.

  	
   

  
	
   

  	
   

  
	
  ARTICLE 6

  DEFAULTS AND REMEDIES

  	
   

  
	
   

  	
   

  
	
  Section 6.1. Events of Default

  	
   

  
	
  Section 6.2. Acceleration

  	
   

  
	
  Section 6.3. Other Remedies

  	
   

  
	
  Section 6.4. Waiver of Past Defaults

  	
   

  
	
  Section 6.5. Control by Majority

  	
   

  
	
  Section 6.6. Limitation on Suits

  	
   

  
	
  Section 6.7. Rights of Holders to Receive
  Payment

  	
   

  
	
  Section 6.8. Collection Suit by Trustee

  	
   

  
	
  Section 6.9. Trustee May File Proofs of
  Claim

  	
   

  
	
  Section 6.10. Priorities

  	
   

  
	
  Section 6.11. Undertaking for Costs

  	
   

  
	
   

  	
   

  
	
  ARTICLE 7

  TRUSTEE

  	
   

  
	
   

  	
   

  
	
  Section 7.1. Duties of Trustee

  	
   

  
	
  Section 7.2. Rights of Trustee

  	
   

  
	
  Section 7.3. Individual Rights of Trustee

  	
   

  
	
  Section 7.4. Trustee’s Disclaimer

  	
   

  
	
  Section 7.5. Notice of Defaults

  	
   

  
	
  Section 7.6. Reports by Trustee to Holders

  	
   

  
	
  Section 7.7. Compensation and Indemnity

  	
   

  
	
  Section 7.8. Replacement of Trustee

  	
   

  
	
  Section 7.9. Successor Trustee by Merger, Etc.

  	
   

  
	
  Section 7.10. Eligibility; Disqualification

  	
   

  
	
  Section 7.11. Preferential Collection of
  Claims Against Company

  	
   

  
	
   

  	
   

  
	
  ARTICLE 8

  DISCHARGE OF INDENTURE; DEFEASANCE

  	
   

  
	
   

  	
   

  
	
  Section 8.1. Termination of Company’s
  Obligations

  	
   

  
	
  Section 8.2. Legal Defeasance and Covenant
  Defeasance

  	
   

  
	
  Section 8.3. Conditions to Legal Defeasance or
  Covenant Defeasance

  	
   

  
	
  Section 8.4. Application of Trust Money

  	
   

  
	
  Section 8.5. Repayment to the Company

  	
   

  



 


ii





















 


	
  ARTICLE 9

  AMENDMENTS

  	
   

  
	
   

  	
   

  
	
  Section 9.1. Without Consent of Holders

  	
   

  
	
  Section 9.2. With Consent of Holders

  	
   

  
	
  Section 9.3. Compliance with Trust Indenture
  Act

  	
   

  
	
  Section 9.4. Revocation and Effect of Consents

  	
   

  
	
  Section 9.5. Notation on or Exchange of 5 Year
  Notes

  	
   

  
	
  Section 9.6. Trustee Protected

  	
   

  
	
   

  	
   

  
	
  ARTICLE 10

  SUBORDINATION

  	
   

  
	
   

  	
   

  
	
  Section 10.1. Agreement to Subordinate

  	
   

  
	
  Section 10.2. Certain Definitions

  	
   

  
	
  Section 10.3. Liquidation; Dissolution;
  Bankruptcy

  	
   

  
	
  Section 10.4. Default on Senior Debt

  	
   

  
	
  Section 10.5. Acceleration of 5 Year Notes

  	
   

  
	
  Section 10.6. When Distribution Must Be Paid
  Over

  	
   

  
	
  Section 10.7. Notice by Company

  	
   

  
	
  Section 10.8. Subrogation

  	
   

  
	
  Section 10.9. Relative Rights

  	
   

  
	
  Section 10.10. Subordination may not be
  Impaired by Company

  	
   

  
	
  Section 10.11. Distribution or Notice to
  Representative

  	
   

  
	
  Section 10.12. Rights of Trustee and Paying
  Agent

  	
   

  
	
  Section 10.13. Trust Moneys Not Subordinated

  	
   

  
	
  Section 10.14. Trustee Not Fiduciary for
  Holders of Senior Debt

  	
   

  
	
   

  	
   

  
	
  ARTICLE 11

  MISCELLANEOUS

  	
   

  
	
   

  	
   

  
	
  Section 11.1. TIA Controls

  	
   

  
	
  Section 11.2. Notices

  	
   

  
	
  Section 11.3. Communication by Holders With
  Other Holders

  	
   

  
	
  Section 11.4. Certificate and Opinion as to
  Conditions Precedent

  	
   

  
	
  Section 11.5. Statements Required in
  Certificate or Opinion

  	
   

  
	
  Section 11.6. Rules by Trustee and
  Agents

  	
   

  
	
  Section 11.7. Legal Holidays

  	
   

  
	
  Section 11.8. No Recourse Against Others

  	
   

  
	
  Section 11.9. Duplicate Originals

  	
   

  
	
  Section 11.10. Variable Provisions

  	
   

  
	
  Section 11.11. Governing Law

  	
   

  
	
  Section 11.12. No Adverse Interpretation of
  Other Agreements

  	
   

  
	
  Section 11.13. Successors

  	
   

  
	
  Section 11.14. Severability

  	
   

  



 


iii





















 


INDENTURE dated as of November 7, 2005, between
CS Financing Corporation, a Delaware corporation (“Company”), and U.S. Bank
National Association, a national banking association (“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 Company’s
5 Year Notes:


 


ARTICLE 1

DEFINITIONS AND INCORPORATION BY REFERENCE


 


Section 1.1.            Definitions.


 


“Affiliate” means any person directly or indirectly controlling
or controlled by or under direct or indirect common control with the Company.


 


“Agent” means any Registrar, Paying Agent or co-registrar.


 


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


 


“Company” means the party named as such above until a successor
replaces it and thereafter means the successor or any other obligor with
respect to the 5 Year Notes.


 


“Company Order” means an order signed in the name of the
Company by its President or a Vice President, and by its Treasurer or
Secretary, and delivered to the Trustee.


 


“Date of Issue” means the date that the Company receives proper
documentation and the funds for the purchase of a 5 Year Note if such funds are
received prior to 3:00 p.m. on a business day or the next business day if
the Company receives such funds on a non-business day or after 3:00 p.m.
on a business day. For this purpose, the Company’s business days will be deemed
to be Monday through Friday, except on Minnesota legal holidays.


 


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


 


“5 Year Notes” means the 5 Year Notes described herein issued
under this Indenture.


 


“Holder” or “Certificateholder”
means a person in whose name a 5 Year Note is registered.


 


“Indenture” means this Indenture as amended from time to time.


 


“Officers’
Certificate” means a certificate signed by an officer of the
Company.


 


1





















 


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


 


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


 


“Principal” of a debt security means the principal of the
security plus the premium, if any, on the security.


 


“SEC” means the United States Securities and Exchange
Commission.


 


“Stated Maturity,” when used with respect to a 5 Year Note,
means the date specified in such 5 Year Note as the fixed date on which the
principal of such 5 Year Note and any accrued but unpaid interest is due and
payable.


 


“Subsidiary” means any person of which at least a majority of
capital stock having ordinary voting power for the election of directors or
other governing body of such person is owned by the Company directly or through
one or more subsidiaries.


 


“TIA” means the Trust Indenture Act of 1939 as in effect on the
date of execution of this Indenture.


 


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


 


“Trust Officer” means the Chairman of the Board, the President
or any other officer or assistant officer of the Trustee assigned by the
Trustee to administer its corporate trust matters.


 


Section 1.2.            Other
Definitions.


 


	
  Term

  	
   

  	
  Defined in

  Section

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  “Additional Interest”

  	
   

  	
  2.2(b)

  	
   

  
	
  “Bankruptcy Law”

  	
   

  	
  6.1

  	
   

  
	
  “Custodian”

  	
   

  	
  6.1

  	
   

  
	
  “Debt”

  	
   

  	
  10.2

  	
   

  
	
  “Event of Default”

  	
   

  	
  6.1

  	
   

  
	
  “Legal Holiday”

  	
   

  	
  11.7

  	
   

  
	
  “Officer”

  	
   

  	
  11.10

  	
   

  
	
  “Representative”

  	
   

  	
  10.2

  	
   

  
	
  “Senior Debt”

  	
   

  	
  10.2

  	
   

  
	
  “U.S. Government Obligations”

  	
   

  	
  8.1

  	
   

  



 


2





















 


Section 1.3.            Incorporation
by Reference of TIA.


 


Whenever this Indenture
refers to a provision of the TIA, the provision is incorporated by reference in
and made a part of this Indenture.


 


The following TIA terms used
in this Indenture have the following meanings:


 


“Indenture Securities” means the 5 Year Notes;


 


“Indenture Security Holder” means a Certificateholder;


 


“Indenture
to be Qualified” means this Indenture;


 


“Indenture
Trustee” or “Institutional
Trustee” means the Trustee; and


 


“Obligor” on the 5 Year Notes means the Company.


 


All other terms used in this
Indenture that are defined by the TIA, defined by TIA reference to another
statute, or defined by SEC rule under the TIA have the meanings assigned
to them.


 


Section 1.4.            Rules of
Construction.


 


Unless the context otherwise
requires:


 


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


 


(2)           an
accounting term not otherwise defined has the meaning assigned to it in
accordance with United States generally accepted accounting principles in
effect on the date of execution of this Indenture;


 


(3)           “or” is not exclusive;


 


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


 


(5)           provisions
apply to successive events and transactions.


 


ARTICLE 2

THE 5 YEAR NOTES


 


Section 2.1.            Form and
Dating.


 


The 5 Year Notes shall be
substantially in the form of EXHIBIT A, with such appropriate insertions,
omissions, substitutions and other variations required or permitted by this
Indenture. The 5 Year Notes may have notations, legends or endorsements
required by law, stock exchange rule or usage.


 


3





















 


Section 2.2.            Terms.


 


(a)           Amount Unlimited; Terms. The aggregate
principal amount of 5 Year Notes which may be delivered under this Indenture is
unlimited. 5 Year Notes may be issued in one or more series. The initial
aggregate principal amount of the 5 Year Notes to be delivered under this
Indenture shall be $100,000,000. The aggregate principal amount may be
increased, without the need for approval of any Holders or the Trustee by means
of Company Order, as set forth in Section 9.1.


 


(b)           Interest. The interest rate payable on any
5 Year Note shall be a fixed rate of 11% per annum.


 


(c)           Subordination. The 5 Year Notes shall be
subordinated and junior in right of payment to all Senior Debt of the Company
as provided in Article 10.


 


Section 2.3.            Execution.


 


Two Officers, consisting of
the President or a Vice President and the Treasurer or Secretary, shall sign
the 5 Year Notes for the Company by manual or facsimile signature.


 


If an Officer whose
signature is on a 5 Year Note no longer holds that office at the time the 5
Year Note is delivered, the 5 Year Note shall nevertheless be valid.


 


Section 2.4.            Registrar
and Paying Agent.


 


The Company shall maintain
an office or agency where 5 Year Notes may be presented for registration of
transfer or for exchange (“Registrar”)
and an office or agency where 5 Year Notes may be presented for payment (“Paying Agent”). The Registrar shall keep a
register of the 5 Year Notes and of their transfer and exchange. The Company
may appoint one or more co-registrars and one or more additional paying agents.
The Company may change any Paying Agent, Registrar or co-registrar without
notice to any Certificateholder. The term “Paying
Agent” includes any additional paying agent. The Company shall
notify the Trustee of the name and address of any agent not a party to this
Indenture. The Company or any of its subsidiaries may act as Paying Agent or
Registrar. The Company initially appoints itself as Paying Agent and Registrar.


 


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 Certificateholders or the Trustee
all money held by the Paying Agent for the payment of principal or interest on
the 5 Year Notes, and will notify the Trustee of any failure by the Company in
making any such payment. While any such failure 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 shall have no further
liability for the money. If the Company acts as Paying 


 


4





















 


Agent, it shall segregate
and hold in a separate bank account for the benefit of the Certificateholders
all money held by it as Paying Agent. The Paying Agent may charge for its
expenses in issuing a replacement interest check.


 


Section 2.6.            Certificateholder
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 Certificateholders. If the
Trustee is not the Registrar, the Company shall timely furnish to the Trustee
the changes in this list and will furnish an updated list of the names and
addresses of Certificateholders in such form and as of such date and at such
other times as the Trustee may request in writing.


 


Section 2.7.            Transfer
and Exchange.


 


Where 5 Year Notes are
presented to the Registrar or a co-registrar with a request to register,
transfer or to exchange them for an equal principal amount of 5 Year Notes but
of other denominations, the Registrar shall register the transfer or make the
exchange if its requirements for such transactions are met. To permit
registrations of transfer and exchanges, the Company shall issue 5 Year Notes
at the Registrar’s request. The Company may charge for its expenses in
transferring or exchanging a 5 Year Note.


 


The Company shall not be
required (i) to issue, transfer or exchange any 5 Year Note during a
period beginning at the opening of business 15 days before the day of the
mailing of a notice of redemption of 5 Year Notes selected for redemption
pursuant to Section 3.3 and ending at the close of business on the date of
such redemption, or (ii) to transfer or exchange any 5 Year Note selected
for redemption in whole or in part.


 


Section 2.8.            Replacement
5 Year Notes.


 


If the Holder of a 5 Year
Note claims that the 5 Year Note has been lost, destroyed or wrongfully taken,
the Company shall issue a replacement 5 Year Note if the Trustee’s requirements
are met. If required by the Trustee or the Company, an indemnity bond must be
sufficient in the judgment of both the Company and the Trustee to protect the
Company, the Trustee or any Agent from any loss which any of them may suffer if
a 5 Year Note is replaced.


 


The Trustee may waive such
indemnity bond if so instructed by the Company. The Company may charge for its
expenses in replacing a 5 Year Note.


 


Every replacement 5 Year
Note is an additional obligation of the Company.


 


Section 2.9.            Outstanding
5 Year Notes.


 


The 5 Year Notes outstanding
at any time are all of the 5 Year Notes delivered by the Company pursuant to
this Indenture except for those canceled by it, those 


 


5





















 


delivered to it for
cancellation, and those described in this Section as not outstanding.


 


If a 5 Year Note is replaced
pursuant to Section 2.8, it ceases to be outstanding unless the Trustee
receives proof satisfactory to it that the replaced 5 Year Note is held by a
bona fide purchaser.


 


If 5 Year Notes are
considered paid under Section 4.1, they cease to be outstanding and
interest on them ceases to accrue.


 


Section 2.10.          Treasury
5 Year Notes.


 


In determining whether the
Holders of the required principal amount of the 5 Year Notes have concurred in
any direction, waiver or consent, 5 Year Notes owned by the Company or an
Affiliate shall be disregarded, except that for the purposes of determining
whether the Trustee shall be protected in relying on any such direction, waiver
or consent, only 5 Year Notes which the Trustee knows are so owned shall be so
disregarded.


 


Section 2.11.          Temporary
5 Year Notes.


 


Until definitive 5 Year
Notes are ready for delivery, the Company may prepare temporary 5 Year Notes.
Temporary 5 Year Notes shall be substantially in the form of definitive 5 Year
Notes but may have variations that the Company considers appropriate. Without
unreasonable delay, the Company shall prepare definitive 5 Year Notes in
exchange for temporary 5 Year Notes.


 


Section 2.12.          Cancellation.


 


The Company at any time may
deliver 5 Year Notes to the Trustee for cancellation. The Registrar and Paying
Agent shall forward to the Trustee any 5 Year Notes surrendered to them for
registration of transfer, exchange or payment. The Trustee shall cancel all 5
Year Notes surrendered for registration of transfer, exchange, payment,
replacement or cancellation and shall dispose of canceled 5 Year Notes as the
Company directs. The Company may not issue new 5 Year Notes to replace 5 Year
Notes that it has paid or that have been delivered to the Trustee for
cancellation.


 


ARTICLE 3

REDEMPTION


 


Section 3.1.            Applicability
of Article.


 


Redemption of 5 Year Notes
at the election of the Company, as permitted or required by any provision of
this Indenture, shall be made in accordance with such provision and this
Article.


 


6





















 


Section 3.2.            Notices
to Trustee.


 


If the Company wants to
redeem the 5 Year Notes pursuant to paragraph 2 of the 5 Year Notes, it shall
notify the Trustee by Officers’ Certificate of the redemption date and the
principal amount of 5 Year Notes to be redeemed. The Company shall give each
notice provided for in this Section at least fifty (50) days before the
redemption date.


 


Section 3.3.            Selection
of 5 Year Notes to be Redeemed.


 


If fewer than all the 5 Year
Notes are to be redeemed, the Company shall select the 5 Year Notes to be
redeemed by daily balance range, and so inform the Trustee by Officers’
Certificate, subject to the remainder of this Section. If less than all of a
grouping of 5 Year Notes, as specified by Officers’ Certificate, are to be
redeemed, the portion thereof selected for redemption shall be determined
ratably or by lot. If fewer than all of such grouping of 5 Year Notes as
specified by Officers’ Certificate are to be redeemed, the Trustee shall then
make the selection not more than fifty (50) days before the redemption date
from 5 Year Notes outstanding not previously called for redemption. The Trustee
may select for redemption portions of the principal of 5 Year Notes that have
denominations greater than $5,000. Provisions of this Indenture that apply to 5
Year Notes called for redemption also apply to portions of 5 Year Notes called
for redemption. The Trustee shall notify the Company promptly of the 5 Year Notes
or portions of 5 Year Notes to be called for redemption.


 


Section 3.4.            Notice
of Redemption.


 


At least thirty (30) days
but not more than sixty (60) days before a redemption date, the Company shall
mail a notice of redemption by first-class mail to each Holder of 5 Year Notes
whose 5 Year Notes are to be redeemed.


 


The notice shall identify
the 5 Year Notes to be redeemed and shall state:


 


(1)           the
redemption date;


 


(2)           the
redemption price, which shall be equal to 100% of the principal amount of the 5
Year Note plus accrued interest on a daily basis to the redemption date;


 


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


 


(4)           that
5 Year Notes called for redemption must be surrendered to the Paying Agent to
collect the redemption price; and


 


(5)           that
interest on 5 Year Notes called for redemption ceases to accrue on and after
the redemption date.


 


At the Company’s request,
the Trustee shall give the notice of redemption in the Company’s name and at
its expense.


 


7





















 


Section 3.5.            Effect
of Notice of Redemption.


 


Once notice of redemption is
mailed, 5 Year Notes called for redemption become due and payable on the
redemption date at the redemption price.


 


Section 3.6.            Deposit
of Redemption Price.


 


On or before the redemption
date, the Company shall deposit with the Paying Agent, or if the Company is
acting as Paying Agent it shall deposit into a separate bank account pursuant
to Section 2.5 hereof, money sufficient to pay the redemption price of and
accrued interest on all 5 Year Notes to be redeemed on that date.


 


Section 3.7.            5
Year Notes Redeemed in Part.


 


Upon surrender of a 5 Year
Note that is redeemed in part, the Company shall issue for the Holder a new 5
Year Note equal in principal amount to the unredeemed portion of the 5 Year
Note surrendered.


 


Section 3.8.            Redemption
if Balance Falls Below $5,000.


 


The Company may, in its sole
discretion, redeem any 5 Year Note in full if the principal balance of such 5
Year Note falls below $5,000 at any time. The redemption price shall be equal
to 100% of the principal amount of the 5 Year Note plus accrued interest on a
daily basis to the redemption date. This redemption right of the Company shall
be automatic and no advance notice is required.


 


ARTICLE 4

COVENANTS


 


Section 4.1.            Payment
of 5 Year Notes.


 


The Company shall pay the
principal of and interest on the 5 Year Notes upon demand of the Holder in the
manner provided in the 5 Year Notes. Principal and interest shall be considered
paid on the date due if the Paying Agent holds on that date money designated
for and sufficient to pay all principal and interest then due.


 


Section 4.2.            SEC
Reports.


 


The Company shall file with
the Trustee within fifteen (15) days after it files them with the SEC copies of
the annual reports and quarterly reports and of the information, documents, and
other reports (or copies of such portions of any of the foregoing as the SEC
may by rules and regulations prescribe) for the 5 Year Notes which the
Company may be required to file with the SEC pursuant to Section 13 or Section 15(d) of
the Securities Exchange Act of 1934, as amended. The Company also shall comply
with the other provisions of TIA Section 314(a).


 


8





















 


Section 4.3.            Compliance
Certificate.


 


The Company shall deliver to
the Trustee, within one hundred twenty (120) days after the end of each fiscal
year of the Company, an Officers’ Certificate stating that a review of the
activities of the Company and its subsidiaries during the preceding fiscal year
has been made under the supervision of the signing Officers with a view to
determining whether the Company has kept, observed, performed and fulfilled its
obligations under this Indenture, and further stating, as to each such Officer
signing such certificate, that to the best of his or her knowledge the Company
has kept, observed, performed and fulfilled each and every covenant contained
in this Indenture and is not in default in the performance or observance of any
of the terms, provisions and conditions hereof (or, if a Default or Event of
Default shall have occurred, describing all such Defaults or Events of Default
of which he or she may have knowledge) and that to the best of his or her
knowledge no event has occurred and remains in existence by reason of which
payments on account of the principal of or interest, if any, on the 5 Year
Notes are prohibited. See Section 11.10.


 


Section 4.4.            Usury
Laws.


 


The Company will not
voluntarily claim and will actively resist any attempts to claim the benefit of
any usury laws against the Holders of the 5 Year Notes.


 


Section 4.5.            Money
for 5 Year Note Payments to be Held in Trust.


 


Whenever the Company shall
have one or more Paying Agents, it will, on or prior to each date for the
payment of the principal of or interest on the 5 Year Notes, deposit with a
Paying Agent a sum sufficient to pay the principal and interest so becoming
due, such sum to be held in trust for the benefit of the persons entitled to
such payments; and, unless such Paying Agent is the Trustee, the Company will
promptly notify the Trustee of its action or failure so to act.


 


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


 


(1)           hold
all sums held by it for the payment of the principal of and interest on the 5
Year Notes in trust for the benefit of the persons entitled thereto until such
sums shall be paid to such persons or otherwise disposed of as herein provided;


 


(2)           give
the Trustee notice of any default by the Company (or any other obligor upon the
5 Year Notes) in the making of any payment of principal and interest; and


 


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


 


9





















 


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


 


Section 4.6.            Continued
Existence.


 


Subject to Article 5,
the Company will do or cause to be done all things necessary to preserve and
keep in full force and effect its existence as a corporation.


 


ARTICLE 5

SUCCESSORS


 


Section 5.1.            When
Company May Merge, Etc.


 


The Company shall not
consolidate or merge with or into, or transfer or lease all or substantially
all of its assets to, any Person unless the corporation formed by or surviving
any such consolidation or merger (if other than the Company), or to which such
sale or conveyance shall have been made, assumes by supplemental indenture all
the obligations of the Company under the 5 Year Notes then outstanding and this
Indenture.


 


The Company shall deliver to
the Trustee prior to the proposed transaction an Officers’ Certificate to the
foregoing effect and an Opinion of Counsel stating that the proposed
transaction and such supplemental indenture comply with this Indenture.


 


The surviving corporation
shall be the successor Company, but the predecessor Company in the case of a
transfer or lease shall not be released from the obligation to pay the
principal of and interest on the 5 Year Notes.


 


ARTICLE 6

DEFAULTS AND REMEDIES


 


Section 6.1.            Events
of Default.


 


An “Event Of Default” occurs if:


 


(1)           the
Company defaults in the payment of the principal and interest of any 5 Year
Note when the same is presented for payment, upon redemption or otherwise,
which default has not been cured for a period of thirty (30) days;


 


10





















 


(2)           the
Company fails to comply with any of its other agreements or covenants in, or
provisions of, the 5 Year Notes or this Indenture and the Default continues for
the period and after the notice specified below;


 


(3)           the
Company or any material subsidiary pursuant to or within the meaning of any
Bankruptcy Law now or hereafter in effect:


 


(A)          commences
a voluntary proceeding under any such Bankruptcy Law;


 


(B)           consents
to the entry of an order for relief against it in an involuntary Bankruptcy
proceeding;


 


(C)           consents
to the appointment of a Custodian of it or for all or substantially all of its
property;


 


(D)          makes
a general assignment for the benefit of its creditors; or


 


(E)           generally
is unable to pay its debts as the same become due;


 


(4)           a
court of competent jurisdiction enters an order or decree under any Bankruptcy
Law that:


 


(A)          is
for relief against the Company or any material subsidiary in an involuntary
Bankruptcy proceeding;


 


(B)           appoints
a Custodian of the Company or any material subsidiary or for all or
substantially all of its property; or


 


(C)           orders
the winding up or liquidation of the Company or any material subsidiary, and
the order or decree remains unstayed and in effect for 60 days.


 


The term “Bankruptcy Law” means Title 11 of the
United States Code or any similar Federal or State Law for the relief of
debtors. The term “Custodian”
means any receiver, trustee, assignee, liquidator, sequestrator or similar
official under any Bankruptcy Law.


 


A Default under clause (3) is
not an Event of Default until the Trustee or the Holders of at least 25% in
principal amount of the then outstanding 5 Year Notes notify the Company of the
Default and the Company does not cure the Default within sixty (60) days after
receipt of the notice. The notice must specify the Default, demand that it be
remedied and state that the notice is a “Notice
of Default.”


 


11





















 


Section 6.2.            Acceleration.


 


 If an Event of
Default occurs and is continuing, the Trustee by notice to the Company, or the
Holders of at least 25% in principal amount of the then outstanding 5 Year
Notes, by notice to the Company and the Trustee, may declare the principal of
and accrued interest on all the 5 Year Notes to be due and payable. Upon such
declaration the principal and interest owing on the then outstanding 5 Year
Notes shall be due and payable immediately The Holders of a majority in
principal amount of the then outstanding 5 Year Notes, by notice to the
Trustee, may rescind an acceleration and its consequences if the rescission
would not conflict with any judgment or decree and if all existing Events of
Default have been cured or waived, except nonpayment of principal or interest
that has become due solely because of the acceleration.


 


Section 6.3.            Other
Remedies.


 


If an Event of Default
occurs and is continuing, the Trustee may pursue any available remedy to
collect the payment of principal and interest on the 5 Year Notes or to enforce
the performance of any provision of the 5 Year Notes or this Indenture.


 


The Trustee may maintain a
proceeding even if it does not possess any of the 5 Year Notes or does not
produce any of them in the proceeding. A delay or omission by the Trustee or
any Holder of 5 Year Notes in exercising any right or remedy accruing upon an
Event of Default shall not impair the right or remedy or constitute a waiver of
or acquiescence in the Event of Default. All remedies are cumulative to the
extent permitted by law.


 


Section 6.4.            Waiver
of Past Defaults.


 


The Holders of a majority in
principal amount of the then outstanding 5 Year Notes, by notice to the
Trustee, may waive an existing Default or Event of Default and its consequences
except a continuing Default or Event of Default in the payment of the principal
of and interest on the 5 Year Notes.


 


Section 6.5.            Control
by Majority.


 


The Holders of a majority in
principal amount of the then outstanding 5 Year Notes may 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. However, the
Trustee may refuse to follow any direction that conflicts with law or this
Indenture, is unduly prejudicial to the rights of other Holders of the 5 Year
Notes, or would involve the Trustee in personal liability.


 


Section 6.6.            Limitation
on Suits.


 


The Holder of 5 Year Notes
may pursue a remedy with respect to this Indenture or the 5 Year Notes only if:


 


(1)           the
Holder gives to the Trustee notice of a continuing Event of Default;


 


12





















 


(2)           the
Holders of at least 25% in principal amount of the then outstanding 5 Year
Notes make a request to the Trustee to pursue the remedy;


 


(3)           such
Holder or Holders offer to the Trustee indemnity satisfactory to the Trustee
against any loss, liability or expense;


 


(4)           the
Trustee does not comply with the request within sixty (60) days after receipt
of the request and the offer of indemnity; and


 


(5)           during
such sixty (60)-day period the Holders of a majority of principal amount of the
then outstanding 5 Year Notes do not give the Trustee a direction inconsistent
with the request.


 


A Certificateholder may not
use this Indenture to prejudice the rights of another Holder of the 5 Year Notes
or to obtain a preference or priority over another Holder of the 5 Year Notes.


 


Section 6.7.            Rights
of Holders to Receive Payment.


 


Notwithstanding any other
provision of this Indenture, the right of any Holder of a 5 Year Note to
receive payment of principal and interest on the 5 Year Note, on or after the
date demand is made for payment therefor, or to bring suit for the enforcement
of any such payment on or after such demand date, shall not be impaired or
affected without the consent of the Holder.


 


Section 6.8.            Collection
Suit by Trustee.


 


If an Event of Default
specified in Section 6.1(1) or Section 6.1(2) occurs and is
continuing, the Trustee may recover judgment in its own name and as trustee of
an express trust against the Company for the whole amount of principal and
interest and fees remaining unpaid on the 5 Year Notes with respect to which
the Event of Default occurred in each case at the rate per annum borne by the 5
Year Notes and such 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.


 


Section 6.9.            Trustee
May File Proofs of Claim.


 


The Trustee may file such
proofs of claim and other papers or documents as may be necessary or advisable
in order to have the claims of the Trustee (including any claim for the
compensation, expenses, disbursements and advances of the Trustee, its agents
and counsel) and the Certificateholders allowed in any judicial proceedings
relative to the Company, its creditors or its property. The Trustee shall be
entitled to participate as a member of any official committee of creditors in
the matters as it deems necessary or advisable.


 


13





















 


Section 6.10.          Priorities.


 


If the Trustee collects any
money pursuant to this Article, it shall pay out the money in the following
order:


 


	
  First:

  	
  to the Trustee for amounts due under
  Section 7.7;

  
	
   

  	
   

  
	
  Second:

  	
  to holders of Senior Debt to the extent required by
  Article 10;

  
	
   

  	
   

  
	
  Third:

  	
  to Holders of 5 Year Notes and holders of Debentures
  for amounts due and unpaid on the 5 Year Notes and Debentures for principal
  and interest, ratably, without preference or priority of any kind, according
  to the amounts due and payable on the 5 Year Notes and Debentures for
  principal and interest, respectively; and

  
	
   

  	
   

  
	
  Fourth:

  	
  to the Company.

  



 


The Trustee may fix a record
date and payment date for any payment to the Certificateholders pursuant to
this Section 6.10.


 


Section 6.11.          Undertaking
for Costs.


 


In any suit for the
enforcement of any right or remedy under this Indenture or in any suit against
the Trustee for any action taken or omitted by it as a Trustee, a court in its
discretion may assess reasonable costs, including reasonable attorneys’ fees,
against any party litigant in the suit, having due regard to the merits and
good faith of the claims or defenses made by the party litigant. This Section does
not apply to a suit by the Trustee, a suit by a Holder pursuant to Section 6.7,
or a suit by Holders of more than 10% in principal amount of the then
outstanding 5 Year Notes.


 


ARTICLE 7

TRUSTEE


 


Section 7.1.            Duties
of Trustee.


 


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


 


(2)           Except
during the continuance of an Event of Default:


 


(A)          The
Trustee need perform only those duties that are specifically set forth in this
Indenture and no duties, covenants, responsibilities or obligations shall be
implied in this Indenture against the Trustee; and


 


14





















 


(B)           In
the absence of bad faith on its part, the Trustee may conclusively rely, as to
the truth of the statements and the correctness of the opinions expressed
therein, upon certificates or opinions (including without limitation Officers’
Certificates and Opinions of Counsel) furnished to the Trustee and conforming
to the requirements of this Indenture. However, the Trustee shall examine the
certificates and opinions to determine whether or not they conform on their
face to the requirements of this Indenture.


 


(3)           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:


 


(A)          This
paragraph does not limit the effect of paragraph (b) of this Section;


 


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


 


(C)           The
Trustee shall not be liable with respect to any action it takes or omits to
take in good faith in accordance with a direction received by it pursuant to Section 6.5.


 


(4)           Every
provision of this Indenture that in any way relates to the Trustee is subject
to paragraphs (a), (b) and (c) of this Section.


 


(5)           The
Trustee may refuse to perform any duty or exercise any right or power unless it
receives indemnity satisfactory to it against any loss, liability or expense.


 


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


 


Section 7.2.            Rights
of Trustee.


 


(1)           The
Trustee may conclusively rely on 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.


 


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


 


15





















 


(3)           The
Trustee may act through agents and shall not be responsible for the misconduct
or negligence of any agent appointed with due care.


 


(4)           The
Trustee shall not be liable for any action it takes or omits to take in good
faith which it believes to be authorized or within its rights or powers.


 


(5)           The
Trustee shall have no duty to inquire as to the performance of the Company with
respect to covenants contained in Article 4.  In addition, delivery of reports, information
and documents to the Trustee under Section 4.2 is for informational
purposes only and the Trustee’s receipt of the foregoing shall not constitute
constructive notice of any information contained therein or determinable from
information contained therein, including the Company’s compliance with any of
their covenants hereunder (as to which the Trustee is entitled to rely
exclusively on Officers’ Certificates).


 


Section 7.3.            Individual
Rights of Trustee.


 


 Subject to Section 7.1:


 


(a)           The
Trustee in its individual or any other capacity may become the owner or pledgee
of 5 Year Notes and may otherwise deal with the Company or an Affiliate with
the same rights it would have if it were not Trustee. Any Agent may do the same
with like rights.


 


(b)           The
Company shall notify the Trustee if the 5 Year Notes become listed on any
securities exchange or of any delisting thereof and the Trustee shall comply
with Section 313(d) of the TIA.


 


Section 7.4.            Trustee’s
Disclaimer.


 


The Trustee makes no
representation at to the validity or adequacy of this Indenture or the 5 Year
Notes, it shall not be accountable for the Company’s use of the proceeds from
the 5 Year Notes, and it shall not be responsible for any statement in the 5
Year Notes.


 


Section 7.5.            Notice
of Defaults.


 


If a Default or Event of
Default occurs and is continuing and if it is known to the Trustee, the Trustee
shall mail to Holders of the 5 Year Notes a notice of the Default or Event of
Default within ninety (90) days after it occurs. Except in the case of a
Default or Event of Default in payment on a 5 Year Note, the Trustee may
withhold the notice if and so long as a committee of its Trust Officers in good
faith determines that withholding the notice is in the interests of Holders of
the 5 Year Notes.


 


16





















 


Section 7.6.            Reports
by Trustee to Holders.


 


Within 60 days after the
reporting date stated in Section 11.10, the Trustee shall mail to
Certificateholders a brief report dated as of such reporting date that complies
with Section 313(a) of the TIA. The Trustee also shall comply with Section 313(b)(2) of
the TIA.


 


A copy of each report at the
time of its mailing to Certificateholders shall be filed with the SEC and each
stock exchange on which the 5 Year Notes are listed. The Company shall notify
the Trustee when the 5 Year Notes are listed on any stock exchange.


 


Section 7.7.            Compensation
and Indemnity.


 


The Company shall pay to the
Trustee from time to time reasonable compensation for its services. 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 out-of-pocket expenses of the Trustee’s agents
and counsel.


 


The Company shall indemnify
the Trustee against any loss or liability incurred by it except as set forth in
the next two paragraphs. 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
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.


 


The Company need not
reimburse any expense or indemnify against any loss or liability incurred by
the Trustee through negligence or bad faith.


 


To secure the Company’s
payment of obligations in this Section, the Trustee shall have a lien prior to
the 5 Year Notes on all money or property held or collected by the Trustee,
including that held in trust to pay principal and interest on the 5 Year Notes.


 


When the Trustee incurs
expenses or renders services after an Event of Default specified in Section 6.1(4) or
(5) occurs, the expenses and the compensation for the services are
intended to constitute expenses of administration under any Bankruptcy Law.


 


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.


 


17





















 


The Trustee may resign by so
notifying the Company. The Trustee may be removed with respect to the 5 Year
Notes by the Holders of a majority in principal amount of the then outstanding
5 Year Notes by so notifying the Trustee and the Company. The Company may
remove the Trustee if:


 


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


 


(b)           the
Trustee is adjudged a bankrupt or an insolvent or any 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;


 


(d)           the
Trustee becomes incapable of action; or


 


(e)           in
the judgment of the Company, comparable services are available from another
entity qualifying under Section 7.10 at a materially lower cost to the
Company.


 


If the Trustee resigns or is
removed or if a vacancy exists in the office of the Trustee for any reason, the
Company shall promptly appoint a successor Trustee. Within one year after the
successor Trustee takes office, a successor Trustee may be appointed by act of
the Holders of a majority in principal amount of the then outstanding 5 Year
Notes to replace the successor Trustee appointed by the Company.


 


If a successor Trustee does
not take office within sixty (60) days after the retiring Trustee resigns or is
removed, the retiring Trustee, the Company or the Holders of at least 10% in
principal amount of the then outstanding 5 Year Notes may petition any court of
competent jurisdiction for the appointment of a successor Trustee.


 


If the Trustee fails to
comply with Section 7.10, any Holder of the 5 Year Notes may petition any
court of competent jurisdiction for the removal of the Trustee and 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. Thereupon 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 under this Indenture. The successor Trustee shall
mail a notice of its succession to the Holders of 5 Year Notes. The retiring
Trustee shall promptly transfer all property held by it as Trustee to the
successor Trustee, subject to the lien provided for in Section 7.7.


 


Section 7.9.            Successor
Trustee by Merger, Etc.


 


If the Trustee consolidates,
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.


 


18





















 


Section 7.10.          Eligibility;
Disqualification.


 


This Indenture shall always
have a Trustee who satisfies the requirements of Sections 310(a)(1), 310(a)(2) and
310(a)(5) of the TIA. The Trustee shall always have a combined capital and
surplus as stated in the TIA. The Trustee is subject to Section 310(b) of
the TIA. Section 11.10 lists any excluded indenture or trust agreement.


 


Section 7.11.          Preferential
Collection of Claims Against Company.


 


The Trustee is subject to Section 311(a) of
the TIA, excluding any creditor relationship described 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 therein.


 


ARTICLE 8

DISCHARGE OF INDENTURE; DEFEASANCE


 


Section 8.1.            Termination
of Company’s Obligations.


 


This Indenture shall cease
to be of further effect (except that the Company’s obligations under Sections
7.7 and 8.5 shall survive) when all outstanding 5 Year Notes theretofore issued
have been delivered to the Trustee for cancellation. In addition, the Company
may terminate its obligations under this Indenture if:


 


(a)           The
5 Year Notes then outstanding are to be called for redemption within one year
under arrangements satisfactory to the Trustee for giving the notice of
redemption; and


 


(b)           The
Company irrevocably deposits in trust with the Trustee money or U.S. Government
Obligations sufficient to pay principal and interest on the 5 Year Notes then
outstanding to maturity or redemption, as the case may be. The Company may make
the deposit only during the one-year period and only if Article 11 permits
it.


 


However, the Company’s
obligations in Sections 2.4, 2.5, 2.6, 2.7, 2.8, 4.1, 6.7, 6.8 and 8.5, and in Article 10,
shall survive until no 5 Year Notes are outstanding. Thereafter, only the
Company’s obligations in Sections 7.7 and 8.5 shall survive.


 


If a deposit is made
pursuant to this Section 8.1, the Trustee, upon request, shall acknowledge
in writing the discharge of the Company’s obligations under this Indenture,
except for those surviving obligations specified above.


 


In order to have money
available on a payment date to pay principal and interest on the 5 Year Notes,
the U.S. Government Obligations shall be payable as to principal and interest
on or before such payment date in such amounts as will provide the necessary
money. U.S. Government Obligations shall not be callable at the issuer’s
option.


 


19





















 


“U.S. Government Obligations” means direct obligations of the
United States of America for the payment of which the full faith and credit of
the United States of America is pledged.


 


Section 8.2.            Legal
Defeasance and Covenant Defeasance.


 


(1)           The
Company may, at its option and at any time, elect to have either paragraph (b) or
(c) below be applied to all outstanding 5 Year Notes upon compliance with
the conditions set forth in Section 8.3.


 


(2)           Upon
the Company’s exercise under Section 8.2(a) hereof of the option
applicable to this Section 8.2(b), the Company shall, subject to the
satisfaction of the conditions set forth in Section 83, be deemed to have
been discharged from their obligations with respect to all outstanding 5 Year
Notes on the date the conditions set forth below are satisfied (hereinafter, “Legal Defeasance”). For this purpose, Legal
Defeasance means that the Company shall be deemed to have paid and discharged
the entire Debt represented by the outstanding 5 Year Notes, which shall
thereafter be deemed to be “outstanding” only for the purposes of Section 8.4
hereof and the other Sections of this Indenture referred to in (i) and (ii) below,
and to have satisfied all its other obligations under such 5 Year Notes and
this Indenture (and the Trustee, on demand of and at the expense of the Company,
shall execute proper instruments acknowledging the same), except for the
following provisions which shall survive until otherwise terminated or
discharged hereunder:


 


(A)          the
rights of Holders of outstanding 5 Year Notes to receive, solely from the trust
fund described in Section 8.4 hereof, and as more fully set forth in such Section 8.4,
payments in respect of the principal of and interest on such 5 Year Notes when
such payments are due;


 


(B)           the
Company’s obligations with respect to such 5 Year Notes under Article 2
and Section 4.1 hereof;


 


(C)           the
rights, powers, trusts, duties and immunities of the Trustee hereunder and the
Company’s obligations in connection therewith; and


 


(D)          the
provisions of this Article 8 applicable to Legal Defeasance.


 


Subject to compliance with
this Article 8, the Company may exercise its option under this Section 8.2(b) notwithstanding
the prior exercise of its option under Section 8.2(c) hereof.


 


(3)           Upon
the Company’s exercise under paragraph (a) hereof of the option applicable
to this paragraph (c), the Company shall, subject to the satisfaction of the
conditions set forth in Section 8.3 hereof, be released 


 


20





















 


from their respective obligations under the
covenants contained in Sections 4.2 and 4.4 hereof with respect to the
outstanding 5 Year Notes on and after the date the conditions set forth in Section 8.3
are satisfied (hereinafter, “Covenant
Defeasance”), and the 5 Year Notes 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 5 Year Notes shall not be deemed
outstanding for accounting purposes). For this purpose, Covenant Defeasance
means that, with respect to the outstanding 5 Year Notes, the Company may omit
to comply with and shall have no liability in respect of any term, condition or
limitation set forth in any such 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 and such omission to comply shall not constitute an Event of Default
under Section 6.1 hereof, but, except as specified above, the remainder of
this Indenture and such 5 Year Notes shall be unaffected thereby. In addition,
upon the Company’s exercise under paragraph (a) hereof of the option
applicable to this paragraph (c), subject to the satisfaction of the conditions
set forth in Section 8.3 hereof, clause (3) of Section 6.1
hereof shall not constitute an Event of Default.


 


Section 8.3.            Conditions
to Legal Defeasance or Covenant Defeasance.


 


The following shall be the
conditions to the application of either Section 8.2(b) or 8.2(c) hereof
to the outstanding 5 Year Notes:


 


(a)           the
Company must irrevocably deposit with the Trustee, in trust, for the benefit of
the Holders, money or U.S. Government Obligations, or a combination thereof, in
such amounts as will be sufficient (without reinvestment), in the opinion of a
nationally recognized firm of independent public accountants selected by the Company,
to pay the principal and interest on the 5 Year Notes on the stated date for
payment or on the redemption date;


 


(b)           in
the case of Legal Defeasance, the Company shall have delivered to the Trustee
an Opinion of Counsel in the United States confirming that:


 


(i)            the
Company has received from, or there has been published by the Internal Revenue
Service, a ruling, or


 


(ii)           since
the date of this Indenture, there has been a change in the applicable U.S.
federal income tax law,


 


in either case to the effect
that, and based thereon, the Holders will not recognize income, gain or loss
for U.S. federal income tax purposes as a 


 


21





















 


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 an Opinion of Counsel in the United States reasonably acceptable to the
Trustee confirming that the Holders 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 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 Covenant
Defeasance had not occurred;


 


(d)           no
Default shall have occurred and be continuing on the date of such deposit;


 


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


 


(f)            the
Company shall have delivered to the Trustee an Officers’ Certificate stating
that the deposit was not made by it with the intent of preferring the Holders
over any other creditors of the Company or with the intent of defeating,
hindering, delaying or defrauding any other of its creditors; and


 


(g)           the
Company shall have delivered to the Trustee an Officers’ Certificate and an
Opinion of Counsel, each stating that the conditions provided for in clauses (1) through
(6) of this Section 8.3 (in the case of the Officers’ Certificate),
as applicable, and clauses (2), if applicable, and/or (3) and (5) of
this Section 8.3 (in the case of the Opinion of Counsel) have been
complied with.


 


Section 8.4.            Application
of Trust Money.


 


The Trustee shall hold in
trust money or U.S. Government Obligations deposited with it pursuant to Section 8.1.
It shall apply the deposited money and the money from U.S. Government
Obligations through the Paying Agent and in accordance with this Indenture to
the payment of principal and interest on the 5 Year Notes. Money and 5 Year
Notes so held in trust are not subject to Article 10.


 


Section 8.5.            Repayment
to the Company.


 


The Trustee and the Paying
Agent shall promptly pay to the Company upon request any money or 5 Year Notes
held by them at any time in excess of amounts required to be so held hereunder.


 


22





















 


The Trustee and the Paying
Agent shall pay to the Company upon request any money held by them for the
payment of principal and interest that remains unclaimed for two years. After
payment to the Company, Certificateholders entitled to the money must look to
the Company for payment as general creditors unless an applicable abandoned
property law designates another person.


 


ARTICLE 9

AMENDMENTS


 


Section 9.1.            Without
Consent of Holders.


 


The Company and the Trustee
may amend this Indenture or the 5 Year Notes without the consent of the Holders
of the 5 Year Notes by Company Order:


 


(a)           to
cure any ambiguity, defect or inconsistency;


 


(b)           to
comply with Section 5.1;


 


(c)           to
provide for uncertified 5 Year Notes in addition to certificated 5 Year Notes;


 


(d)           to
increase the aggregate principal amount of 5 Year Notes which may be delivered
under this Indenture;


 


(e)           to
make any change that does not adversely affect the legal rights hereunder of
the Holders of the 5 Year Notes; or


 


(f)            to
comply with requirements of the SEC in order to effect or maintain the
qualification of this Indenture with the TIA.


 


Section 9.2.            With
Consent of Holders.


 


The Company and the Trustee
may amend this Indenture or the 5 Year Notes with the written consent of the
Holders of at least a majority in principal amount of the then outstanding 5
Year Notes. However, without the consent of each Certificateholder affected, an
amendment under this Section may not:


 


(a)           reduce
the amount of 5 Year Notes whose Holders must consent to an amendment;


 


(b)           reduce
the principal of or change the demand payment nature of any 5 Year Note;


 


(c)           make
any 5 Year Note payable in money other than that stated in such 5 Year Note;


 


(d)           make
any change in Section 6.4, Section 6.7 or Section 9.2(2); or


 


23





















 


(e)           make
any change in Article 10 that adversely affects the rights of any Certificateholder.


 


An amendment under this Section may
not make any change that adversely affects the rights under Article 10 of
any holder of an issue of Senior Debt unless the holders of the issue pursuant
to its terms consent to the change or the change is otherwise permissible.


 


After an amendment under
this Section becomes effective, the Company shall mail to the Holders of
the 5 Year Notes affected by such amendment a notice briefly describing the
amendment.


 


Section 9.3.            Compliance
with Trust Indenture Act.


 


Every amendment to this
Indenture or the 5 Year Notes shall be set forth in a supplemental indenture
that complies with the TIA as then in effect.


 


Section 9.4.            Revocation
and Effect of Consents.


 


Until an amendment or waiver
becomes effective, a consent to it by a Holder of a 5 Year Note is a continuing
consent by the Holder and every subsequent Holder of a 5 Year Note or portion
of a 5 Year Note that evidences the same debt as the consenting Holder’s 5 Year
Note, even if notification of the consent is not made on any 5 Year Note.
However, any such Holder or subsequent Holder may revoke the consent as to his
or her 5 Year Note or portion of a 5 Year Note if the Trustee receives the
notice of revocation before the date the amendment or waiver becomes effective.
An amendment or waiver becomes effective in accordance with its terms and
thereafter binds every Holder of the 5 Year Notes.


 


Section 9.5.            Notation
on or Exchange of 5 Year Notes.


 


The Trustee may place an
appropriate notation about an amendment or waiver on any 5 Year Note thereafter
authenticated. The Company in exchange for all 5 Year Notes may issue and the
Trustee shall authenticate new 5 Year Notes that reflect the amendment or
waiver.


 


Section 9.6.            Trustee
Protected.


 


The Trustee shall sign all
supplemental indentures and shall be fully protected in doing so, except that
the Trustee need not sign any supplemental indenture that adversely affects its
rights. The Trustee shall be entitled to receive, and shall be fully protected
in relying on, an Opinion of Counsel and an Officers’ Certificate, which shall
be provided at the expense of the Company.


 


24





















 


ARTICLE 10

SUBORDINATION


 


Section 10.1.          Agreement
to Subordinate.


 


The Company agrees, and each
Certificateholder by accepting a 5 Year Note agrees, that the indebtedness
evidenced by the 5 Year Note is subordinated in right of payment, to the extent
and in the manner provided in this Article, to the prior payment in full of all
Senior Debt, and that the subordination is for the benefit of the holders of
Senior Debt.


 


Section 10.2.          Certain
Definitions.


 


“Debt” means any indebtedness, contingent or otherwise, in
respect of borrowed money (whether or not the recourse of the lender is to the
whole of the assets of the Company or only to a portion thereof), or evidenced
by bonds, notes, debentures or similar instruments or letters of credit, or
representing the balance deferred and unpaid on the purchase price of any
property or interest therein, except any such balance that constitutes a trade
payable, and shall include any guarantee of any indebtedness described above.


 


“Representative” means the indenture trustee or other trustee,
agent or representative for an issue of Senior Debt.


 


“Senior Debt” means all Debt (present or future) created,
incurred, assumed or guaranteed by the Company (and all renewals, extensions or
refundings thereof), except such Debt that by its terms expressly provides that
such Debt is not senior or superior in right of payment to the 5 Year Notes.
Senior Debt shall include without limitation (i) the guarantee by the
Company of any Debt of any other person (including, without limitation,
subordinated Debt of another person), unless such Debt is expressly
subordinated to any other Debt of the Company, and (ii) all Debt of the
Company currently maintained with banks and finance companies and any line of
credit to be obtained by the Company in the future. Notwithstanding anything
herein to the contrary, Senior Debt shall not include Debt of the Company to
any of its subsidiaries or under the 5 Year Notes or Debentures.


 


Section 10.3.          Liquidation;
Dissolution; Bankruptcy.


 


Upon any distribution to
creditors of the Company in a liquidation or dissolution of the Company or in a
bankruptcy, reorganization, insolvency, receivership or similar proceeding
relating to the Company or its property:


 


(a)           holders
of Senior Debt shall be entitled to receive payment in full in cash of the
principal and interest (including interest accruing after the commencement of
any such proceeding) to the date of payment, on the Senior Debt before
Certificateholders shall be entitled to receive any payment of principal and
interest on 5 Year Notes; and


 


(b)           until
the Senior Debt is paid in full in cash, any distribution to which
Certificateholders would be entitled but for this Article shall be made to
holders of Senior Debt as their interest may appear, except that Holders of 


 


25





















 


5 Year Notes may receive 5 Year Notes that
are subordinated to Senior Debt to at least the same extent as such 5 Year
Notes.


 


Section 10.4.          Default
on Senior Debt.


 


Upon the maturity of any
Senior Debt by lapse of time, acceleration or otherwise, all such Senior Debt
shall first be paid in full, or such payment duly provided for in cash or in a
manner satisfactory to the holders of such Senior Debt, before any payment is
made by the Company or any person acting on behalf of the Company on account of
the principal and interest on the 5 Year Notes.


 


The Company may not pay
principal and interest on the 5 Year Notes and may not acquire 5 Year Notes for
cash or property other than capital stock of the Company if:


 


(a)           a
default on Senior Debt occurs and is continuing that permits holders of such
Senior Debt to accelerate its maturity, and


 


(b)           the
default is the subject of judicial proceedings or the Company receives a notice
of the default from a person who may give it pursuant to Section 10.12. If
the Company receives any such notice, a similar notice received within nine (9) months
thereafter relating to the same default on the same issue of Senior Debt shall
not be effective for purposes of this Section.


 


The Company may resume
payments on the 5 Year Notes and may acquire them when:


 


(c)           the
default is cured or waived, or


 


(d)           one
hundred twenty (120) days pass after the notice is given if the default is not
the subject of judicial proceedings, if this Article otherwise permits the
payment or acquisition at that time.


 


Section 10.5.          Acceleration
of 5 Year Notes.


 


If payment of the 5 Year
Notes is accelerated because of an Event of Default, the Company shall promptly
notify holders of Senior Debt of the acceleration. The Company may pay Holders
of the 5 Year Notes when one hundred twenty (120) days pass after the
acceleration occurs if this Article permits the payment at that time.


 


Section 10.6.          When
Distribution Must Be Paid Over.


 


In the event that,
notwithstanding the provisions of Section 10.4, the Company shall make any
payment to the Trustee on account of the principal and interest on the 5 Year
Notes, two (2) business days after the happening of a default in payment
of the principal or interest on Senior Debt, or two (2) business days
after receipt by the Company and the Trustee of written notice as provided in 


 


26





















 


Sections 10.4 and 10.12 of
an Event of Default or an event which, with the passage of time or the giving
of notice or both, would constitute an Event of Default with respect to any
Senior Debt, then, unless and until such Default or Event of Default shall have
been cured or waived or shall have ceased to exist, such payment shall be held
by the Trustee, in trust for the benefit of, and shall be paid forthwith over
and delivered to, the holders of Senior Debt (pro rata as to each of such
holders on the basis of the respective amounts of Senior Debt held by them) or
their representative or the trustee under the indenture or other agreement (if
any) pursuant to which Senior Debt may have been issued, as their respective
interests may appear, for application to the payment of all Senior Debt
remaining unpaid to the extent necessary to pay all Senior Debt in full in
accordance with its terms, after giving effect to any concurrent payment or
distribution to or for the holders of Senior Debt.


 


If a distribution is made to
the Holders of 5 Year Notes that because of this Article should not have
been made to them, the Holders who receive the distribution shall hold it in
trust for holders of Senior Debt and pay it over to them as their interests may
appear.


 


Section 10.7.          Notice
by Company.


 


The Company shall promptly
notify the Trustee and the Paying Agent of any facts known to the Company that
would cause a payment of principal and interest on the 5 Year Notes to violate
this Article, but failure to give such notice shall not affect the
subordination of the 5 Year Notes to the Senior Debt provided in this Article.
Nothing in this Article 10 shall apply to claims of, or payments to, the
Trustee under or pursuant to Section 6.7.


 


Section 10.8.          Subrogation.


 


After all Senior Debt is
paid in full and until the 5 Year Notes are paid in full, Holders of the then
outstanding 5 Year Notes shall be subrogated to the rights of holders of Senior
Debt to receive distributions applicable to Senior Debt to the extent
distributions otherwise payable to such Holders have been applied to the
payment of Senior Debt. A distribution made under this Article to holders
of Senior Debt which otherwise would have been made to Certificateholders is
not, as between the Company and Certificateholders, a payment by the Company on
Senior Debt.


 


Section 10.9.          Relative
Rights.


 


This Article defines
the relative rights of Certificateholders and holders of Senior Debt. Nothing said
in this indenture shall:


 


(1)           impair,
as between the Company and Certificateholders, the obligation of the Company,
which is absolute and unconditional, to pay principal of and interest on the 5
Year Notes in accordance with their terms;


 


27





















 


(2)           affect
the relative rights of Certificateholders and creditors of the Company other
than holders of Senior Debt; or


 


(3)           prevent
the Trustee or any Certificateholder from exercising its available remedies
upon a Default or Event of Default, subject to the rights of holders of Senior
Debt to receive distributions otherwise payable to Certificateholders.


 


If the Company fails because
of this Article to pay principal and interest on a 5 Year Note on the due
date, the failure is still a Default or Event of Default.


 


Section 10.10.        Subordination
may not be Impaired by Company.


 


No right of any holder of
Senior Debt to enforce the subordination of the indebtedness evidenced by the 5
Year Notes shall be impaired by any act or failure to act by the Company or by
its failure to comply with this Indenture.


 


Section 10.11.        Distribution
or Notice to Representative.


 


Whenever a distribution is
to be made or a notice given to holders of Senior Debt, the distribution may be
made and the notice given to their Representative.


 


Section 10.12.        Rights
of Trustee and Paying Agent.


 


The Trustee or Paying Agent
may continue to make payments on the 5 Year Notes until it receives notice of
facts that would cause a payment of principal and interest on the 5 Year Notes
to violate this Article. Only the Company, a Representative or a holder of an
issue of Senior Debt that has no Representative may give the notice.


 


The Trustee in its
individual or any other capacity may hold Senior Debt with same rights it would
have if it were not Trustee. Any Agent may do the same with like rights.


 


Section 10.13.        Trust
Moneys Not Subordinated.


 


Notwithstanding anything
contained herein to the contrary, payments from money or the proceeds of U.S.
Government Obligations held in trust under Article 8 by the Trustee for
the payment of principal of and interest on the 5 Year Notes shall not be
subordinated to the prior payment of any Senior Debt or subject to the
restrictions set forth in this Article 10, and none of the Holders of the
5 Year Notes shall be obligated to pay over any such amount to the Company or
any holder of Senior Debt of the Company or any other creditor of the Company.


 


Section 10.14.        Trustee
Not Fiduciary for Holders of Senior Debt.


 


The Trustee shall not be
deemed to owe any fiduciary duty to the holders of Senior Debt and shall not be
liable to any such holders if it shall mistakenly pay 


 


28





















 


over or distribute to
Holders of the 5 Year Notes or the Company or any other person, money or assets
to which any holders of Senior Debt of the Company shall be entitled by virtue
of this Article 10 or otherwise.


 


ARTICLE 11

MISCELLANEOUS


 


Section 11.1.          TIA
Controls.


 


If any provision of this
Indenture limits, qualifies, or conflicts with another provision which is
required to be included in this Indenture by the TIA, the required provision
shall control.


 


Section 11.2.          Notices.


 


Any notice by the Company or
the Trustee to the other is duly given if in writing and delivered in person or
mailed by first-class mail to the other’s address stated in Section 11.10.
The Company or the Trustee by notice to the other may designate additional or
different addresses for subsequent notices or communications.


 


Any notice to a
Certificateholder shall be mailed by first-class mail to the address shown on
the register kept by the Registrar or such other name and addresses as provided
to the Trustee pursuant to Sections 313(c)(2) and (3) of the TIA.
Failure to mail a notice or communication to a Certificateholder or any defect
in it shall not affect its sufficiency with respect to other
Certificateholders.


 


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


 


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


 


All other notices shall be
in writing.


 


Section 11.3.          Communication
by Holders With Other Holders.


 


Certificateholders may
communicate pursuant to Section 312(b) of the TIA with other
Certificateholders with respect to their rights under this Indenture or the 5
Year Notes. The Company, the Trustee, the Registrar and anyone else shall have
the protection of Section 312(c) of the TIA.


 


Section 11.4.          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:


 


29





















 


(a)           an
Officer’s 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 11.5.          Statements
Required in Certificate or Opinion.


 


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


 


(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 or she has made such
examination or investigation as is necessary to enable him or her to express an
informed opinion as to whether or not such 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 11.6.          Rules by
Trustee and Agents.


 


The Trustee may make
reasonable rules for action by or a meeting of Certificateholders. The
Registrar or Paying Agent may make reasonable rules and set reasonable
requirements for its functions.


 


Section 11.7.          Legal
Holidays.


 


A “Legal Holiday” is a Saturday, a Sunday or a
day on which banking institutions are not required to be open. 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 11.8.          No
Recourse Against Others.


 


All liability described in
the 5 Year Notes of any director, officer, employee or stockholder, as such, of
the Company and the Trustee is waived and released.


 


30





















 


Section 11.9.          Duplicate
Originals.


 


The parties may sign any
number of copies of this Indenture. One signed copy is enough to prove this
Indenture.


 


Section 11.10.        Variable
Provisions.


 


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


 


The Company initially
appoints itself as Paying Agent and Registrar.


 


The first certificate
pursuant to Section 4.3 shall be for the fiscal year ending on December 31,
2005.


 


The reporting date for Section 7.6
is May 15 of each year. The first reporting date is May 15, 2006.


 


 The Company’s
address is:


 


45 San Clemente Drive, Suite B210


Corte Madera, California 94925


 


The Trustee’s address is:


 


U.S. Bank National Association


60 Livingston Avenue


St. Paul, Minnesota 55107


Attention:  Corporate Trust
Administration


 


Section 11.11.        Governing
Law.


 


The internal laws of the
State of Minnesota shall govern this Indenture and the 5 Year Notes.


 


Section 11.12.        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. Any such indenture, loan or debt agreement may not be used to
interpret this Indenture.


 


Section 11.13.        Successors.


 


All agreements of the
Company in this Indenture and the 5 Year Notes shall bind its successor. All
agreements of the Trustee in this Indenture shall bind its successor.


 


31





















 


Section 11.14.        Severability.


 


In case any provision in
this Indenture or the 5 Year Notes shall be invalid, illegal or unenforceable,
the validity, legality and enforceability of the remaining provisions shall not
in any way be affected or impaired thereby.


 


32





















 


IN WITNESS WHEREOF, the parties hereto hereby execute this Indenture as
of the date first written.


 


	
   

  	
  COMPANY:

  
	
   

  	
   

  
	
   

  	
  CS FINANCING CORPORATION

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Timothy R. Redpath

  	
   

  
	
   

  	
  Its:

  	
  Chief Executive Officer

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  TRUSTEE:

  
	
   

  	
   

  
	
   

  	
  U.S. BANK NATIONAL ASSOCIATION

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Rick Prokosch

  	
   

  
	
   

  	
  Its:

  	
  Vice President

  
					



 


33