HF FINANCIAL CORP.




 




as Issuer




 




INDENTURE




 




Dated as of July 11, 2002




 




WILMINGTON TRUST COMPANY




 




as Trustee




 




FLOATING RATE JUNIOR

SUBORDINATED DEBT SECURITIES DUE 2032




 





























 




TABLE OF

CONTENTS




 




	

  ARTICLE I DEFINITIONS


  
	

   


  
	

  SECTION 1.01


  	

  Definitions


  
	

   


  	

   


  
	

  ARTICLE II DEBT SECURITIES


  
	

   


  	

   


  
	

  SECTION 2.01


  	

  Authentication

  and Dating


  
	

   


  	

   


  
	

  SECTION

  2.02


  	

  Form

  of Trustee’s Certificate of Authentication


  
	

   


  	

   


  
	

  SECTION

  2.03


  	

  Form

  and Denomination of Debt Securities


  
	

   


  	

   


  
	

  SECTION 2.04


  	

  Execution of

  Debt Securities


  
	

   


  	

   


  
	

  SECTION

  2.05


  	

  Exchange

  and Registration of Transfer of Debt Securities


  
	

   


  	

   


  
	

  SECTION

  2.06


  	

  Mutilated,

  Destroyed, Lost or Stolen Debt Securities


  
	

   


  	

   


  
	

  SECTION 2.07


  	

  Temporary Debt

  Securities


  
	

   


  	

   


  
	

  SECTION 2.08


  	

  Payment of Interest


  
	

   


  	

   


  
	

  SECTION

  2.09


  	

  Cancellation

  of Debt Securities Paid, etc.


  
	

   


  	

   


  
	

  SECTION 2.10


  	

  Computation of

  Interest


  
	

   


  	

   


  
	

  SECTION

  2.11


  	

  Extension

  of Interest Payment Period


  
	

   


  	

   


  
	

  SECTION 2.12


  	

  CUSIP Numbers


  
	

   


  	

   


  
	

  ARTICLE

  III PARTICULAR COVENANTS OF THE COMPANY


  
	

   


  
	

  SECTION

  3.01


  	

  Payment

  of Principal, Premium and Interest; Agreed Treatment of the Debt Securities


  
	

   


  	

   


  
	

  SECTION

  3.02


  	

  Offices

  for Notices and Payments, etc.


  
	

   


  	

   


  
	

  SECTION

  3.03


  	

  Appointments

  to Fill Vacancies in Trustee’s Office


  
	

   


  	

   


  
	

  SECTION 3.04


  	

  Provision as

  to Paying Agent


  
	

   


  	

   


  
	

  SECTION 3.05


  	

  Certificate to

  Trustee


  
	

   


  	

   


  
	

  SECTION 3.06


  	

  Additional Interest


  
	

   


  	

   


  
	

  SECTION

  3.07


  	

  Compliance

  with Consolidation Provisions


  





 




i





























 




	

  SECTION 3.08


  	

  Limitation on

  Dividends


  
	

   


  	

   


  
	

  SECTION 3.09


  	

  Covenants as to

  the Trust


  
	

   


  	

   


  
	

  ARTICLE

  IV LISTS AND REPORTS  BY THE COMPANY

  AND THE TRUSTEE


  
	

   


  
	

  SECTION 4.01


  	

  Securityholders’

  Lists


  
	

   


  	

   


  
	

  SECTION

  4.02


  	

  Preservation

  and Disclosure of Lists


  
	

   


  	

   


  
	

  ARTICLE

  V REMEDIES OF THE TRUSTEE AND SECURITYHOLDERS UPON AN EVENT OF DEFAULT


  
	

   


  
	

  SECTION 5.01


  	

  Events of Default


  
	

   


  	

   


  
	

  SECTION

  5.02


  	

  Payment

  of Debt Securities on Default; Suit Therefor


  
	

   


  	

   


  
	

  SECTION

  5.03


  	

  Application

  of Moneys Collected by Trustee


  
	

   


  	

   


  
	

  SECTION

  5.04


  	

  Proceedings

  by Securityholders


  
	

   


  	

   


  
	

  SECTION 5.05


  	

  Proceedings by

  Trustee


  
	

   


  	

   


  
	

  SECTION

  5.06


  	

  Remedies

  Cumulative and Continuing


  
	

   


  	

   


  
	

  SECTION

  5.07


  	

  Direction

  of Proceedings and Waiver of Defaults by Majority of Securityholders


  
	

   


  	

   


  
	

  SECTION 5.08


  	

  Notice of Defaults


  
	

   


  	

   


  
	

  SECTION 5.09


  	

  Undertaking to

  Pay Costs


  
	

   


  	

   


  
	

  ARTICLE VI CONCERNING

  THE TRUSTEE


  
	

   


  
	

  SECTION

  6.01


  	

  Duties

  and Responsibilities of Trustee


  
	

   


  	

   


  
	

  SECTION

  6.02


  	

  Reliance

  on Documents, Opinions, etc.


  
	

   


  	

   


  
	

  SECTION

  6.03


  	

  No

  Responsibility for Recitals, etc.


  
	

   


  	

   


  
	

  SECTION

  6.04


  	

  Trustee,

  Authenticating Agent, Paying Agents, Transfer Agents or Registrar May Own

  Debt Securities


  
	

   


  	

   


  
	

  SECTION 6.05


  	

  Moneys to be

  Held in Trust


  
	

   


  	

   


  
	

  SECTION

  6.06


  	

  Compensation

  and Expenses of Trustee


  





 




ii





























 




	

  SECTION

  6.07


  	

  Officers’

  Certificate as Evidence


  
	

   


  	

   


  
	

  SECTION 6.08


  	

  Eligibility of

  Trustee


  
	

   


  	

   


  
	

  SECTION

  6.09


  	

  Resignation

  or Removal of Trustee


  
	

   


  	

   


  
	

  SECTION

  6.10


  	

  Acceptance

  by Successor Trustee


  
	

   


  	

   


  
	

  SECTION 6.11


  	

  Succession by

  Merger, etc.


  
	

   


  	

   


  
	

  SECTION 6.12


  	

  Authenticating

  Agents


  
	

   


  	

   


  
	

  ARTICLE VII

  CONCERNING THE SECURITYHOLDERS


  
	

   


  
	

  SECTION 7.01


  	

  Action by

  Securityholders


  
	

   


  	

   


  
	

  SECTION

  7.02


  	

  Proof

  of Execution by Securityholders


  
	

   


  	

   


  
	

  SECTION

  7.03


  	

  Who Are

  Deemed Absolute Owners


  
	

   


  	

   


  
	

  SECTION

  7.04


  	

  Debt

  Securities Owned by Company Deemed Not Outstanding


  
	

   


  	

   


  
	

  SECTION

  7.05


  	

  Revocation

  of Consents; Future Holders Bound


  
	

   


  	

   


  
	

  ARTICLE VIII

  SECURITYHOLDERS’ MEETINGS


  
	

   


  
	

  SECTION 8.01


  	

  Purposes of Meetings


  
	

   


  	

   


  
	

  SECTION 8.02


  	

  Call of

  Meetings by Trustee


  
	

   


  	

   


  
	

  SECTION

  8.03


  	

  Call

  of Meetings by Company or Securityholders


  
	

   


  	

   


  
	

  SECTION 8.04


  	

  Qualifications

  for Voting


  
	

   


  	

   


  
	

  SECTION 8.05


  	

  Regulations


  
	

   


  	

   


  
	

  SECTION 8.06


  	

  Voting


  
	

   


  	

   


  
	

  SECTION 8.07


  	

  Quorum; Actions


  
	

   


  	

   


  
	

  ARTICLE IX

  SUPPLEMENTAL INDENTURES


  
	

   


  
	

  SECTION

  9.01


  	

  Supplemental

  Indentures without Consent of Securityholders


  





 




iii





























 




	

  SECTION

  9.02


  	

  Supplemental

  Indentures with Consent of Securityholders


  
	

   


  	

   


  
	

  SECTION

  9.03


  	

  Effect

  of Supplemental Indentures


  
	

   


  	

   


  
	

  SECTION 9.04


  	

  Notation on

  Debt Securities


  
	

   


  	

   


  
	

  SECTION

  9.05


  	

  Evidence

  of Compliance of Supplemental Indenture to be Furnished to Trustee


  
	

   


  	

   


  
	

  ARTICLE X REDEMPTION

  OF SECURITIES


  
	

   


  
	

  SECTION 10.01


  	

  Optional Redemption


  
	

   


  	

   


  
	

  SECTION 10.02


  	

  Special Event

  Redemption


  
	

   


  	

   


  
	

  SECTION

  10.03


  	

  Notice

  of Redemption; Selection of Debt Securities


  
	

   


  	

   


  
	

  SECTION

  10.04


  	

  Payment

  of Debt Securities Called for Redemption


  
	

   


  	

   


  
	

  ARTICLE

  XI CONSOLIDATION, MERGER, SALE, CONVEYANCE AND LEASE


  
	

   


  
	

  SECTION

  11.01


  	

  Company

  May Consolidate, etc., on Certain Terms


  
	

   


  	

   


  
	

  SECTION

  11.02


  	

  Successor

  Entity to be Substituted


  
	

   


  	

   


  
	

  SECTION

  11.03


  	

  Opinion

  of Counsel to be Given to Trustee


  
	

   


  	

   


  
	

  ARTICLE

  XII SATISFACTION AND DISCHARGE OF INDENTURE


  
	

   


  
	

  SECTION 12.01


  	

  Discharge of

  Indenture


  
	

   


  	

   


  
	

  SECTION

  12.02


  	

  Deposited

  Moneys to be Held in Trust by Trustee


  
	

   


  	

   


  
	

  SECTION

  12.03


  	

  Paying

  Agent to Repay Moneys Held


  
	

   


  	

   


  
	

  SECTION 12.04


  	

  Return of

  Unclaimed Moneys


  
	

   


  	

   


  
	

  ARTICLE

  XIII IMMUNITY OF INCORPORATORS, STOCKHOLDERS, OFFICERS AND DIRECTORS


  
	

   


  
	

  SECTION

  13.01


  	

  Indenture

  and Debt Securities Solely Corporate Obligations


  
	

   


  	

   


  
	

  ARTICLE XIV

  MISCELLANEOUS PROVISIONS


  
	

   


  	

   


  
	

  SECTION 14.01


  	

  Successors


  





 




iv





























 




	

  SECTION

  14.02


  	

  Official

  Acts by Successor Entity


  
	

   


  	

   


  
	

  SECTION

  14.03


  	

  Surrender of

  Company Powers


  
	

   


  	

   


  
	

  SECTION 14.04


  	

  Addresses for

  Notices, etc.


  
	

   


  	

   


  
	

  SECTION 14.05


  	

  Governing Law


  
	

   


  	

   


  
	

  SECTION

  14.06


  	

  Evidence

  of Compliance with Conditions Precedent


  
	

   


  	

   


  
	

  SECTION 14.07


  	

  Non-Business Days


  
	

   


  	

   


  
	

  SECTION

  14.08


  	

  Table

  of Contents, Headings, etc.


  
	

   


  	

   


  
	

  SECTION 14.09


  	

  Execution in

  Counterparts


  
	

   


  	

   


  
	

  SECTION 14.10


  	

  Separability


  
	

   


  	

   


  
	

  SECTION 14.11


  	

  Assignment


  
	

   


  	

   


  
	

  SECTION 14.12


  	

  Acknowledgment

  of Rights


  
	

   


  	

   


  
	

  ARTICLE XV

  SUBORDINATION OF DEBT SECURITIES


  
	

   


  
	

  SECTION 15.01


  	

  Agreement to

  Subordinate


  
	

   


  	

   


  
	

  SECTION

  15.02


  	

  Default

  on Senior Indebtedness


  
	

   


  	

   


  
	

  SECTION

  15.03


  	

  Liquidation;

  Dissolution; Bankruptcy


  
	

   


  	

   


  
	

  SECTION 15.04


  	

  Subrogation


  
	

   


  	

   


  
	

  SECTION

  15.05


  	

  Trustee

  to Effectuate Subordination


  
	

   


  	

   


  
	

  SECTION 15.06


  	

  Notice by the

  Company


  
	

   


  	

   


  
	

  SECTION

  15.07


  	

  Rights

  of the Trustee; Holders of Senior Indebtedness


  
	

   


  	

   


  
	

  SECTION

  15.08


  	

  Subordination

  May Not Be Impaired


  
	

   


  	

   


  
	

  EXHIBITS


  
	

   


  	

   


  
	

  EXHIBIT A


  	

  Form of Debt Security


  





 




v





























 




THIS INDENTURE, dated as

of July 11, 2002, between HF Financial Corp., a savings and loan holding

company incorporated in Delaware (hereinafter sometimes called the “Company”),

and Wilmington Trust Company, a Delaware banking corporation, as trustee

(hereinafter sometimes called the “Trustee”).




 




W I T N E S S E T H:




 




WHEREAS, for its lawful corporate purposes, the

Company has duly authorized the issuance of its Floating Rate Junior

Subordinated Debt Securities due 2032 (the “Debt Securities”) under this

Indenture and to provide, among other things, for the execution and

authentication, delivery and administration thereof, the Company has duly

authorized the execution of this Indenture.




 




NOW, THEREFORE, in consideration of the premises, and

the purchase of the Debt Securities by the holders thereof, the Company

covenants and agrees with the Trustee for the equal and proportionate benefit

of the respective holders from time to time of the Debt Securities as follows:




 




ARTICLE I


DEFINITIONS




SECTION 1.01               Definitions.




 




The terms defined in this Section 1.01 (except as

herein otherwise expressly provided or unless the context otherwise requires)

for all purposes of this Indenture and of any indenture supplemental hereto

shall have the respective meanings specified in this Section 1.01. All

accounting terms used herein and not expressly defined shall have the meanings

assigned to such terms in accordance with generally accepted accounting principles

and the term “generally accepted accounting principles” means such accounting

principles as are generally accepted in the United States at the time of any

computation.  The words “herein,”

“hereof” and “hereunder” and other words of similar import refer to this

Indenture as a whole and not to any particular Article, Section or other

subdivision.




 




“Additional Interest” shall have the meaning set forth

in Section 3.06.




 




“Additional Provisions” shall have the meaning set

forth in Section 15.01.




 




“Authenticating Agent” means any agent or agents of

the Trustee which at the time shall be appointed and acting pursuant to

Section 6.12.




 




“Bankruptcy Law” means Title 11, U.S. Code, or

any similar federal or state law for the relief of debtors.




 




“Board of Directors” means the board of directors or

the executive committee or any other duly authorized designated officers of the

Company.




 





























 




“Board Resolution” means a copy of a resolution

certified by the Secretary or an Assistant Secretary of the Company to have been

duly adopted by the Board of Directors and to be in full force and effect on

the date of such certification and delivered to the Trustee.




 




“Business Day” means any day other than a Saturday,

Sunday or any other day on which banking institutions in Wilmington, Delaware,

New York City or Sioux Falls, South Dakota are permitted or required

by any applicable law or executive order to close.




 




“Calculation Agent” means the Person identified as

“Trustee” in the first paragraph hereof with respect to the Debt Securities and

the Institutional Trustee with respect to the Trust Securities.




 




“Capital Securities” means undivided beneficial

interests in the assets of the Trust which are designated as “MMCapSSM” and rank pari passu with Common

Securities issued by the Trust; provided, however, that if an

Event of Default (as defined in the Declaration) has occurred and is

continuing, the rights of holders of such Common Securities to payment in

respect of distributions and payments upon liquidation, redemption and otherwise

are subordinated to the rights of holders of such Capital Securities.




 




“Capital Securities Guarantee” means the guarantee

agreement that the Company will enter into with Wilmington Trust Company or

other Persons that operates directly or indirectly for the benefit of holders

of Capital Securities of the Trust.




 




“Capital Treatment Event” means the receipt by the

Company and the Trust of an opinion of counsel experienced in such matters to

the effect that, as a result of (a) any amendment to, or change in, the

laws, rules or regulations of the United States or any political subdivision

thereof or therein, or any rules, guidelines or policies of an applicable

regulatory authority for the Company or (b) any official or administrative

pronouncement or action or decision interpreting or applying such laws, rules

or regulations, which amendment or change is effective or which pronouncement,

action or decision is announced on or after the date of original issuance of

the Debt Securities, there is more than an insubstantial risk that the Company

will not, within 90 days of the date of such opinion, be entitled to treat

an amount equal to the aggregate Liquidation Amount of the Capital Securities

as “Tier 1 Capital” (or its then equivalent if the Company were subject to such

capital requirement) applied as if the Company (or its successors) were a bank

holding company for purposes of the capital adequacy guidelines of the Federal

Reserve (or any successor regulatory authority with jurisdiction over bank

holding companies), or any capital adequacy guidelines as then in effect and

applicable to the Company, provided, however, that the

distribution of the Debt Securities in connection with the liquidation of the

Trust by the Company shall not in and of itself constitute a Capital Treatment

Event unless such liquidation shall have occurred in connection with a Tax

Event or an Investment Company Event.




 




“Certificate” means a certificate signed by any one of

the principal executive officer, the principal financial officer or the

principal accounting officer of the Company.




 




“Common Securities” means undivided beneficial

interests in the assets of the Trust which are designated as “Common

Securities” and rank pari passu with Capital Securities




 




2





























 




issued by the Trust; provided,

however, that if an Event of Default (as defined in the Declaration) has

occurred and is continuing, the rights of holders of such Common Securities to

payment in respect of distributions and payments upon liquidation, redemption

and otherwise are subordinated to the rights of holders of such Capital

Securities.




 




“Company” means HF Financial Corp., a savings and loan

holding company incorporated in Delaware, and, subject to the provisions of

Article XI, shall include its successors and assigns.




 




“Comparable Treasury Issue” means with respect to any

Special Redemption Date, the United States Treasury security selected by the

Quotation Agent as having a maturity comparable to the Remaining Life that

would be utilized, at the time of selection and in accordance with customary

financial practice, in pricing new issues of corporate debt securities of

comparable maturity to the Remaining Life. 

If no United States Treasury security has a maturity which is within a

period from three months before to three months after July 7, 2007, the two

most closely corresponding United States Treasury securities shall be used as

the Comparable Treasury Issue, and the Treasury Rate shall be interpolated or

extrapolated on a straight-line basis, rounding to the nearest month using such

securities.




 




“Comparable Treasury Price” means (a) the average

of five Reference Treasury Dealer Quotations for such Special Redemption Date,

after excluding the highest and lowest such Reference Treasury Dealer

Quotations, or (b) if the Quotation Agent receives fewer than five such

Reference Treasury Dealer Quotations, the average of all such Quotations.




 




“Debt Security” or “Debt Securities” has the meaning

stated in the first recital of this Indenture.




 




“Debt Security Register” has the meaning specified in

Section 2.05.




 




“Declaration” means the Amended and Restated

Declaration of Trust of the Trust dated as of July 11, 2002, as amended or

supplemented from time to time.




 




“Default” means any event, act or condition that with

notice or lapse of time, or both, would constitute an Event of Default.




 




“Defaulted Interest” has the meaning set forth in

Section 2.08.




 




“Deferred Interest” has the meaning set forth in

Section 2.11.




 




“Event of Default” means any event specified in

Section 5.01, which has continued for the period of time, if any, and

after the giving of the notice, if any, therein designated.




 




“Extension Period” has the meaning set forth in

Section 2.11.




 




“Federal Reserve” means the Board of Governors of the

Federal Reserve System.




 




3





























 




“Indenture” means this instrument as originally

executed or, if amended or supplemented as herein provided, as so amended or

supplemented, or both.




 




“Institutional Trustee” has the meaning set forth in

the Declaration.




 




“Interest Payment Date” means January 7th,

April 7th, July 7th and October 7th of each

year, commencing on October 7, 2002, during the term of this Indenture.




 




“Interest Rate” means a per annum rate of interest,

reset quarterly, equal to LIBOR, as determined on the LIBOR Determination Date

immediately preceding each Interest Payment Date, plus 3.65%; provided, that

the applicable Interest Rate may not exceed 12.5% through the Interest Payment

Date in July, 2007.




 




“Investment Company Event” means the receipt by the

Company and the Trust of an opinion of counsel experienced in such matters to

the effect that, as a result of a change in law or regulation or written change

in interpretation or application of law or regulation by any legislative body,

court, governmental agency or regulatory authority, there is more than an

insubstantial risk that the Trust is or, within 90 days of the date of

such opinion will be, considered an “investment company” that is required to be

registered under the Investment Company Act of 1940, as amended, which change

or prospective change becomes effective or would become effective, as the case

may be, on or after the date of the original issuance of the Debt Securities.




 




“LIBOR” means the London Interbank Offered Rate for

three-month U.S. Dollar deposits in Europe as determined by the

Calculation Agent according to Section 2.10(b).




 




“LIBOR Banking Day” has the meaning set forth in

Section 2.10(b)(i).




 




“LIBOR Business Day” has the meaning set forth in

Section 2.10(b)(i).




 




“LIBOR Determination Date” has the meaning set forth

in Section 2.10(b)(i).




 




“Liquidation Amount” means the stated amount of $1,000

per Trust Security.




 




“Maturity Date” means October 7, 2032.




 




“Officers’ Certificate” means a certificate signed by

the Chairman of the Board, the Vice Chairman, the President or any Vice

President, and by the Chief Financial Officer, the Treasurer, an Assistant

Treasurer, the Comptroller, an Assistant Comptroller, the Secretary or an Assistant

Secretary of the Company, and delivered to the Trustee.  Each such certificate shall include the

statements provided for in Section 14.06 if and to the extent required by

the provisions of such Section.




 




“Opinion of Counsel” means an opinion in writing

signed by legal counsel, who may be an employee of or counsel to the Company,

or may be other counsel reasonably satisfactory to the Trustee.  Each such opinion shall include the

statements provided for in Section 14.06 if and to the extent required by

the provisions of such Section.




 




4





























 




“OTS” means the Office of Thrift Supervision.




 




The term “outstanding,” when used with reference to

Debt Securities, subject to the provisions of Section 7.04, means, as of

any particular time, all Debt Securities authenticated and delivered by the

Trustee or the Authenticating Agent under this Indenture, except




 




(a)           Debt Securities theretofore

canceled by the Trustee or the Authenticating Agent or delivered to the Trustee

for cancellation;




 




(b)           Debt Securities, or portions

thereof, for the payment or redemption of which moneys in the necessary amount

shall have been deposited in trust with the Trustee or with any paying agent

(other than the Company) or shall have been set aside and segregated in trust

by the Company (if the Company shall act as its own paying agent); provided,

that, if such Debt Securities, or portions thereof, are to be redeemed

prior to maturity thereof, notice of such redemption shall have been given as

provided in Articles X and XIV or provision satisfactory to the Trustee

shall have been made for giving such notice; and




 




(c)           Debt Securities paid pursuant

to Section 2.06 or in lieu of or in substitution for which other Debt

Securities shall have been authenticated and delivered pursuant to the terms of

Section 2.06 unless proof satisfactory to the Company and the Trustee is

presented that any such Debt Securities are held by bona fide holders in due

course.




 




“Person” means any individual, corporation, limited

liability company, partnership, joint venture, association, joint-stock

company, trust, unincorporated organization or government or any agency or

political subdivision thereof.




 




“Predecessor Security” of any particular Debt Security

means every previous Debt Security evidencing all or a portion of the same debt

as that evidenced by such particular Debt Security; and, for the purposes of

this definition, any Debt Security authenticated and delivered under

Section 2.06 in lieu of a lost, destroyed or stolen Debt Security shall be

deemed to evidence the same debt as the lost, destroyed or stolen Debt

Security.




 




“Primary Treasury Dealer” means a primary United

States Government securities dealer in New York City.




 




“Principal Office of the Trustee,” or other similar

term, means the office of the Trustee at which at any particular time its

corporate trust business shall be principally administered, which at all times

shall be located within the United States and at the time of the execution of

this Indenture shall be Rodney Square North, 1100 North Market Street,

Wilmington, Delaware 19890-0001.




 




“Quotation Agent” means Salomon Smith Barney Inc. and

its successors; provided, however, that if the foregoing shall

cease to be a Primary Treasury Dealer, the Company shall substitute therefor

another Primary Treasury Dealer.




 




“Redemption Date” has the meaning set forth in

Section 10.01.




 




5





























 




“Redemption Price” means 100% of the principal amount

of the Debt Securities being redeemed plus accrued and unpaid interest on such

Debt Securities to the Redemption Date or, in the case of a redemption due to

the occurrence of a Special Event, to the Special Redemption Date if such

Special Redemption Date is on or after July 7, 2007.




 




“Reference Treasury Dealer” means (i) the

Quotation Agent and (ii) any other Primary Treasury Dealer selected by the

Trustee after consultation with the Company.




 




“Reference Treasury Dealer Quotations” means, with

respect to each Reference Treasury Dealer and any Special Redemption Date, the

average, as determined by the Quotation Agent, of the bid and asked prices for

the Comparable Treasury Issue (expressed in each case as a percentage of its

principal amount) quoted in writing to the Trustee by such Reference Treasury

Dealer at 5:00 p.m., New York City time, on the third Business Day preceding

such Special Redemption Date.




 




“Remaining Life” means, with respect to any Debt

Security, the period from the Special Redemption Date for such Debt Security to

July 7, 2007.




 




“Responsible Officer” means, with respect to the

Trustee, any officer within the Principal Office of the Trustee with direct

responsibility for the administration of the Indenture, including any vice–president,

any assistant vice–president, any secretary, any assistant secretary, the

treasurer, any assistant treasurer, any trust officer or other officer of the

Principal Trust Office of the Trustee customarily performing functions similar

to those performed by any of the above designated officers and also means, with

respect to a particular corporate trust matter, any other officer to whom such

matter is referred because of that officer’s knowledge of and familiarity with

the particular subject.




 




“Securityholder,” “holder of Debt Securities” or other

similar terms, means any Person in whose name at the time a particular Debt

Security is registered on the Debt Security Register.




 




“Senior Indebtedness” means, with respect to the

Company, (i) the principal, premium, if any, and interest in respect of (A)

indebtedness of the Company for money borrowed and (B) indebtedness evidenced

by securities, debentures, notes, bonds or other similar instruments issued by

the Company; (ii) all capital lease obligations of the Company; (iii) all

obligations of the Company issued or assumed as the deferred purchase price of

property, all conditional sale obligations of the Company and all obligations

of the Company under any title retention agreement (but excluding trade

accounts payable arising in the ordinary course of business); (iv) all

obligations of the Company for the reimbursement of any letter of credit, any

banker’s acceptance, any security purchase facility, any repurchase agreement

or similar arrangement, any interest rate swap, any other hedging arrangement,

any obligation under options or any similar credit or other transaction; (v)

all obligations of the type referred to in clauses (i) through (iv) above of

other Persons for the payment of which the Company is responsible or liable as

obligor, guarantor or otherwise; and (vi) all obligations of the type referred

to in clauses (i) through (v) above of other Persons secured by any lien on any

property or asset of the Company (whether or not such obligation is assumed by

the Company), whether incurred on or prior to the date of this Indenture or

thereafter incurred, unless, with the prior




 




6





























 




approval of the OTS if

not otherwise generally approved, in the instrument creating or evidencing the

same or pursuant to which the same is outstanding, it is provided that such

obligations are not superior or are pari

passu in right of payment to the Debt Securities.




 




“Special Event” means any of a Tax Event, an

Investment Company Event or a Capital Treatment Event.




 




“Special Redemption Date” has the meaning set forth in

Section 10.02.




 




“Special Redemption Price” means (1) if the Special Redemption

Date is before July 7, 2007, the

greater of (a) 100% of the principal amount of the Debt Securities being

redeemed pursuant to Section 10.02 or (b) as determined by a

Quotation Agent, the sum of the present values of the principal amount payable

as part of the Redemption Price with respect to a redemption as of July

7, 2007, together with the present value of

interest payments calculated at a fixed per annum rate of interest equal to

9.95% over the Remaining Life of such Debt Securities, discounted to the

Special Redemption Date on a quarterly basis (assuming a 360-day year

consisting of twelve 30-day months) at the Treasury Rate plus .50%, plus, in

the case of either (a) or (b), accrued and unpaid interest on such Debt

Securities to the Special Redemption Date and (2) if the Special

Redemption Date is on or after July 7, 2007, the Redemption Price for such Special Redemption Date.




 




“Subsidiary” means, with respect to any Person,

(i) any corporation at least a majority of the outstanding voting stock of

which is owned, directly or indirectly, by such Person or by one or more of its

Subsidiaries, or by such Person and one or more of its Subsidiaries,

(ii) any general partnership, joint venture or similar entity, at least a

majority of the outstanding partnership or similar interests of which shall at

the time be owned by such Person, or by one or more of its Subsidiaries, or by

such Person and one or more of its Subsidiaries, and (iii) any limited

partnership of which such Person or any of its Subsidiaries is a general

partner.  For the purposes of this

definition, “voting stock” means shares, interests, participations or other

equivalents in the equity interest (however designated) in such Person having

ordinary voting power for the election of a majority of the directors (or the

equivalent) of such Person, other than shares, interests, participations or

other equivalents having such power only by reason of the occurrence of a

contingency.




 




“Tax Event” means the receipt by the Company and the

Trust of an opinion of counsel experienced in such matters to the effect that,

as a result of any amendment to or change (including any announced prospective

change) in the laws or any regulations thereunder of the United States or any

political subdivision or taxing authority thereof or therein, or as a result of

any official administrative pronouncement (including any private letter ruling,

technical advice memorandum, regulatory procedure, notice or announcement (an

“Administrative Action”)) or judicial decision interpreting or applying such

laws or regulations, regardless of whether such Administrative Action or

judicial decision is issued to or in connection with a proceeding involving the

Company or the Trust and whether or not subject to review or appeal, which

amendment, clarification, change, Administrative Action or decision is enacted,

promulgated or announced, in each case on or after the date of original

issuance of the Debt Securities, there is more than an insubstantial risk that:

(i) the Trust is, or will be within 90 days of the date of such

opinion, subject to United States federal income tax with respect to income

received or accrued




 




7





























 




on the Debt Securities;

(ii) interest payable by the Company on the Debt Securities is not, or

within 90 days of the date of such opinion, will not be, deductible by the

Company, in whole or in part, for United States federal income tax purposes; or

(iii) the Trust is, or will be within 90 days of the date of such

opinion, subject to more than a de minimis amount of other taxes (including

withholding taxes), duties, assessments or other governmental charges.




 




“Treasury Rate” means (i) the yield, under the

heading which represents the average for the week immediately prior to the date

of calculation, appearing in the most recently published statistical release

designated H.15 (519) or any successor publication which is published

weekly by the Federal Reserve and which establishes yields on actively traded

United States Treasury securities adjusted to constant maturity under the

caption “Treasury Constant Maturities,” for the maturity corresponding to the

Remaining Life (if no maturity is within three months before or after the

Remaining Life, yields for the two published maturities most closely

corresponding to the Remaining Life shall be determined and the Treasury Rate

shall be interpolated or extrapolated from such yields on a straight-line

basis, rounding to the nearest month) or (ii) if such release (or any

successor release) is not published during the week preceding the calculation

date or does not contain such yields, the rate per annum equal to the quarterly

equivalent yield to maturity of the Comparable Treasury Issue, calculated using

a price for the Comparable Treasury Issue (expressed as a percentage of its

principal amount) equal to the Comparable Treasury Price for such Special

Redemption Date.  The Treasury Rate

shall be calculated on the third Business Day preceding the Special Redemption

Date.




 




“Trust” means HF Financial Capital Trust II, the

Delaware business trust, or any other similar trust created for the purpose of

issuing Capital Securities in connection with the issuance of Debt Securities

under this Indenture, of which the Company is the sponsor.




 




“Trust Indenture Act” means the Trust Indenture Act of

1939, as amended from time to time, or any successor legislation.




 




“Trust Securities” means Common Securities and Capital

Securities of HF Financial Capital Trust II.




 




“Trustee” means the Person identified as “Trustee” in

the first paragraph hereof, and, subject to the provisions of Article VI

hereof, shall also include its successors and assigns as Trustee hereunder.




 




“United States” means the United States of America and

the District of Columbia.




 




“U.S. Person” has the meaning given to United States

Person as set forth in Section 7701(a)(30) of the Internal Revenue Code of

1986, as amended.




 




ARTICLE II


DEBT SECURITIES




 




SECTION 2.01               Authentication and Dating.




 




Upon the execution and delivery of this Indenture, or

from time to time thereafter, Debt Securities in an aggregate principal amount

not in excess of $5,155,000 may be executed




 




8





























 




and delivered by the

Company to the Trustee for authentication, and the Trustee shall thereupon

authenticate and make available for delivery said Debt Securities to or upon

the written order of the Company, signed by its Chairman of the Board of

Directors, Vice Chairman, President or Chief Financial Officer or one of its

Vice Presidents, without any further action by the Company hereunder.  In authenticating such Debt Securities, and

accepting the additional responsibilities under this Indenture in relation to

such Debt Securities, the Trustee shall be entitled to receive, and (subject to

Section 6.01) shall be fully protected in relying upon a copy of any Board

Resolution or Board Resolutions relating thereto and, if applicable, an

appropriate record of any action taken pursuant to such resolution, in each

case certified by the Secretary or an Assistant Secretary of the Company as the

case may be.




 




The Trustee shall

have the right to decline to authenticate and deliver any Debt Securities under

this Section if the Trustee, being advised by counsel, determines that such

action may not lawfully be taken or if a Responsible Officer of the Trustee in

good faith shall determine that such action would expose the Trustee to

personal liability to existing holders.




 




The definitive

Debt Securities shall be typed, printed, lithographed or engraved on steel

engraved borders or may be produced in any other manner, all as determined by

the officers executing such Debt Securities, as evidenced by their execution of

such Debt Securities.




 




SECTION 2.02               Form of Trustee’s Certificate

of Authentication.




 




The Trustee’s certificate of authentication on all

Debt Securities shall be in substantially the following form:




 




This is one of the Debt Securities referred to in the

within-mentioned Indenture.




 




	

   


  	

  Wilmington Trust

  Company,


  not in its individual capacity


  but solely as trustee


  
	

   


  	

   


  
	

   


  	

  By:


  	

   


  
	

   


  	

   


  	

  Authorized Officer


  





 




SECTION 2.03               Form and Denomination of Debt

Securities.




 




The Debt Securities shall be substantially in the form

of Exhibit A hereto.  The Debt

Securities shall be in registered, certificated form without coupons and in

minimum denominations of $100,000 and any multiple of $1,000 in excess thereof.  The Debt Securities shall be numbered,

lettered, or otherwise distinguished in such manner or in accordance with such

plans as the officers executing the same may determine with the approval of the

Trustee as evidenced by the execution and authentication thereof.




 




SECTION 2.04               Execution of Debt Securities.




 




The Debt Securities shall be signed in the name and on

behalf of the Company by the manual or facsimile signature of its Chairman of

the Board of Directors, Vice Chairman,




 




9





























 




President or Chief

Financial Officer or one of its Executive Vice Presidents, Senior Vice

Presidents or Vice Presidents, under its corporate seal which may be affixed

thereto or printed, engraved or otherwise reproduced thereon, by facsimile or

otherwise, and which need not be attested. 

Only such Debt Securities as shall bear thereon a certificate of

authentication substantially in the form herein before recited, executed by the

Trustee or the Authenticating Agent by the manual signature of an authorized

officer, shall be entitled to the benefits of this Indenture or be valid or

obligatory for any purpose.  Such

certificate by the Trustee or the Authenticating Agent upon any Debt Security

executed by the Company shall be conclusive evidence that the Debt Security so authenticated

has been duly authenticated and delivered hereunder and that the holder is

entitled to the benefits of this Indenture.




 




In case any officer of the Company who shall have

signed any of the Debt Securities shall cease to be such officer before the

Debt Securities so signed shall have been authenticated and delivered by the

Trustee or the Authenticating Agent, or disposed of by the Company, such Debt

Securities nevertheless may be authenticated and delivered or disposed of as

though the Person who signed such Debt Securities had not ceased to be such

officer of the Company; and any Debt Security may be signed on behalf of the

Company by such Persons as, at the actual date of the execution of such Debt

Security, shall be the proper officers of the Company, although at the date of

the execution of this Indenture any such person was not such an officer.




 




Every Debt Security shall be dated the date of its

authentication.




 




SECTION 2.05               Exchange and Registration of

Transfer of Debt Securities.




 




The Company shall cause to be kept, at the office or

agency maintained for the purpose of registration of transfer and for exchange

as provided in Section 3.02, a register (the “Debt Security Register”) for

the Debt Securities issued hereunder in which, subject to such reasonable

regulations as it may prescribe, the Company shall provide for the registration

and transfer of all Debt Securities as provided in this Article II.  Such register shall be in written form or in

any other form capable of being converted into written form within a reasonable

time.




 




Debt Securities to be exchanged may be surrendered at

the Principal Office of the Trustee or at any office or agency to be maintained

by the Company for such purpose as provided in Section 3.02, and the

Company shall execute, the Company or the Trustee shall register and the

Trustee or the Authenticating Agent shall authenticate and make available for

delivery in exchange therefor the Debt Security or Debt Securities which the

Securityholder making the exchange shall be entitled to receive.  Upon due presentment for registration of

transfer of any Debt Security at the Principal Office of the Trustee or at any

office or agency of the Company maintained for such purpose as provided in

Section 3.02, the Company shall execute, the Company or the Trustee shall

register and the Trustee or the Authenticating Agent shall authenticate and

make available for delivery in the name of the transferee or transferees a new

Debt Security for a like aggregate principal amount. Registration or

registration of transfer of any Debt Security by the Trustee or by any agent of

the Company appointed pursuant to Section 3.02, and delivery of such Debt

Security, shall be deemed to complete the registration or registration of

transfer of such Debt Security.




 




10





























 




All Debt Securities presented for registration of

transfer or for exchange or payment shall (if so required by the Company or the

Trustee or the Authenticating Agent) be duly endorsed by, or be accompanied by,

a written instrument or instruments of transfer in form satisfactory to the

Company and either the Trustee or the Authenticating Agent duly executed by,

the holder or such holder’s attorney duly authorized in writing.




 




No service charge shall be made for any exchange or

registration of transfer of Debt Securities, but the Company or the Trustee may

require payment of a sum sufficient to cover any tax, fee or other governmental

charge that may be imposed in connection therewith.




 




The Company or the Trustee shall not be required to

exchange or register a transfer of any Debt Security for a period of

15 days immediately preceding the date of selection of Debt Securities for

redemption.




 




Notwithstanding the foregoing, Debt Securities may not

be transferred except in compliance with the restricted securities legend set

forth below, unless otherwise determined by the Company in accordance with

applicable law, which legend shall be placed on each Debt Security:




 




THIS

SECURITY HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED

(THE “SECURITIES ACT”), OR ANY STATE SECURITIES LAWS OR ANY OTHER APPLICABLE

SECURITIES LAWS.  NEITHER THIS SECURITY

NOR ANY INTEREST OR PARTICIPATION HEREIN MAY BE REOFFERED, SOLD, ASSIGNED,

TRANSFERRED, PLEDGED, ENCUMBERED OR OTHERWISE DISPOSED OF IN THE ABSENCE OF

SUCH REGISTRATION OR UNLESS SUCH TRANSACTION IS EXEMPT FROM, OR NOT SUBJECT TO,

THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT.  THE HOLDER OF THIS SECURITY BY ITS ACCEPTANCE HEREOF AGREES TO

OFFER, SELL OR OTHERWISE TRANSFER SUCH SECURITY ONLY (A) TO THE COMPANY,

(B) PURSUANT TO RULE 144A UNDER THE SECURITIES ACT

(“RULE 144A”), TO A PERSON THE HOLDER REASONABLY BELIEVES IS A “QUALIFIED

INSTITUTIONAL BUYER” AS DEFINED IN RULE 144A THAT PURCHASES FOR ITS OWN

ACCOUNT OR FOR THE ACCOUNT OF A QUALIFIED INSTITUTIONAL BUYER TO WHOM NOTICE IS

GIVEN THAT THE TRANSFER IS BEING MADE IN RELIANCE ON RULE 144A,

(C) PURSUANT TO AN EXEMPTION FROM REGISTRATION TO AN “ACCREDITED INVESTOR”

WITHIN THE MEANING OF SUBPARAGRAPH (a) (1), (2), (3) OR (7) OF

RULE 501 UNDER THE SECURITIES ACT THAT IS ACQUIRING THE SECURITY FOR ITS

OWN ACCOUNT, OR FOR THE ACCOUNT OF AN “ACCREDITED INVESTOR,” FOR INVESTMENT

PURPOSES AND NOT WITH A VIEW TO, OR FOR OFFER OR SALE IN CONNECTION WITH, ANY

DISTRIBUTION IN VIOLATION OF THE SECURITIES ACT, OR (D) PURSUANT TO

ANOTHER AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE

SECURITIES ACT, SUBJECT TO THE COMPANY’S RIGHT PRIOR TO ANY SUCH OFFER, SALE OR

TRANSFER PURSUANT TO CLAUSES (C) OR (D) TO REQUIRE THE DELIVERY OF AN

OPINION OF COUNSEL, CERTIFICATION AND/OR OTHER INFORMATION SATISFACTORY TO IT

IN ACCORDANCE WITH THE INDENTURE, A COPY OF




 




11





























 




WHICH MAY BE OBTAINED FROM THE COMPANY.  THE HOLDER OF THIS SECURITY BY ITS

ACCEPTANCE HEREOF AGREES THAT IT WILL COMPLY WITH THE FOREGOING RESTRICTIONS.




 




THE

HOLDER OF THIS SECURITY BY ITS ACCEPTANCE HEREOF AGREES, REPRESENTS AND

WARRANTS THAT IT WILL NOT ENGAGE IN HEDGING TRANSACTIONS INVOLVING THIS

SECURITY UNLESS SUCH TRANSACTIONS ARE IN COMPLIANCE WITH THE SECURITIES ACT.




 




THE

HOLDER OF THIS SECURITY BY ITS ACCEPTANCE HEREOF ALSO AGREES, REPRESENTS AND

WARRANTS THAT IT IS NOT AN EMPLOYEE BENEFIT, INDIVIDUAL RETIREMENT ACCOUNT OR

OTHER PLAN OR ARRANGEMENT SUBJECT TO TITLE I OF THE EMPLOYEE RETIREMENT INCOME

SECURITY ACT OF 1974, AS AMENDED (“ERISA”), OR SECTION 4975 OF THE

INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE “CODE”), (EACH A “PLAN”), OR AN

ENTITY WHOSE UNDERLYING ASSETS INCLUDE “PLAN ASSETS” BY REASON OF ANY PLAN’S

INVESTMENT IN THE ENTITY AND NO PERSON INVESTING “PLAN ASSETS” OF ANY PLAN MAY

ACQUIRE OR HOLD THIS SECURITY OR ANY INTEREST THEREIN, UNLESS SUCH PURCHASER OR

HOLDER IS ELIGIBLE FOR THE EXEMPTIVE RELIEF AVAILABLE UNDER

U.S. DEPARTMENT OF LABOR PROHIBITED TRANSACTION CLASS EXEMPTION 96-23,

95-60, 91-38, 90-1 OR 84-14 OR ANOTHER APPLICABLE EXEMPTION OR ITS PURCHASE AND

HOLDING OF THIS SECURITY IS NOT PROHIBITED BY SECTION 406 OF ERISA OR

SECTION 4975 OF THE CODE WITH RESPECT TO SUCH PURCHASE OR HOLDING.  ANY PURCHASER OR HOLDER OF THIS SECURITY OR

ANY INTEREST THEREIN WILL BE DEEMED TO HAVE REPRESENTED BY ITS PURCHASE AND

HOLDING THEREOF THAT EITHER (i) IT IS NOT AN EMPLOYEE BENEFIT PLAN WITHIN

THE MEANING OF SECTION 3(3) OF ERISA, OR A PLAN TO WHICH SECTION 4975

OF THE CODE IS APPLICABLE, A TRUSTEE OR OTHER PERSON ACTING ON BEHALF OF AN

EMPLOYEE BENEFIT PLAN OR PLAN, OR ANY OTHER PERSON OR ENTITY USING THE ASSETS

OF ANY EMPLOYEE BENEFIT PLAN OR PLAN TO FINANCE SUCH PURCHASE, OR

(ii) SUCH PURCHASE WILL NOT RESULT IN A PROHIBITED TRANSACTION UNDER

SECTION 406 OF ERISA OR SECTION 4975 OF THE CODE FOR WHICH THERE IS

NO APPLICABLE STATUTORY OR ADMINISTRATIVE EXEMPTION.




 




IN

CONNECTION WITH ANY TRANSFER, THE HOLDER WILL DELIVER TO THE REGISTRAR AND

TRANSFER AGENT SUCH CERTIFICATES AND OTHER INFORMATION AS MAY BE REQUIRED BY

THE INDENTURE TO CONFIRM THAT THE TRANSFER COMPLIES WITH THE FOREGOING

RESTRICTIONS.




 




THIS

SECURITY WILL BE ISSUED AND MAY BE TRANSFERRED ONLY IN BLOCKS HAVING A

PRINCIPAL AMOUNT OF NOT LESS THAN $100,000 AND MULTIPLES OF $1,000 IN EXCESS

THEREOF.  ANY ATTEMPTED TRANSFER OF THIS

SECURITY IN A BLOCK HAVING A PRINCIPAL AMOUNT OF LESS




 




12





























 




THAN $100,000 SHALL BE DEEMED TO BE VOID AND OF NO LEGAL

EFFECT WHATSOEVER. ANY SUCH PURPORTED TRANSFEREE SHALL BE DEEMED NOT TO BE THE

HOLDER OF THIS SECURITY FOR ANY PURPOSE, INCLUDING, BUT NOT LIMITED TO, THE

RECEIPT OF DISTRIBUTIONS ON THIS SECURITY, AND SUCH PURPORTED TRANSFEREE SHALL

BE DEEMED TO HAVE NO INTEREST WHATSOEVER IN THIS SECURITY.




 




SECTION 2.06               Mutilated, Destroyed, Lost or

Stolen Debt Securities.




 




In case any Debt Security shall become mutilated or be

destroyed, lost or stolen, the Company shall execute, and upon its written

request the Trustee shall authenticate and deliver, a new Debt Security bearing

a number not contemporaneously outstanding, in exchange and substitution for

the mutilated Debt Security, or in lieu of and in substitution for the Debt

Security so destroyed, lost or stolen. 

In every case the applicant for a substituted Debt Security shall

furnish to the Company and the Trustee such security or indemnity as may be

required by them to save each of them harmless, and, in every case of

destruction, loss or theft, the applicant shall also furnish to the Company and

the Trustee evidence to their satisfaction of the destruction, loss or theft of

such Debt Security and of the ownership thereof.




 




The Trustee may authenticate any such substituted Debt

Security and deliver the same upon the written request or authorization of any

officer of the Company.  Upon the

issuance of any substituted Debt Security, 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 connected therewith.  In case any Debt Security which has matured

or is about to mature or has been called for redemption in full shall become

mutilated or be destroyed, lost or stolen, the Company may, instead of issuing

a substitute Debt Security, pay or authorize the payment of the same (without

surrender thereof except in the case of a mutilated Debt Security) if the

applicant for such payment shall furnish to the Company and the Trustee such

security or indemnity as may be required by them to save each of them harmless

and, in case of destruction, loss or theft, evidence satisfactory to the

Company and to the Trustee of the destruction, loss or theft of such Security

and of the ownership thereof.




 




Every substituted Debt Security issued pursuant to the

provisions of this Section 2.06 by virtue of the fact that any such Debt

Security is destroyed, lost or stolen shall constitute an additional

contractual obligation of the Company, whether or not the destroyed, lost or

stolen Debt Security shall be found at any time, and shall be entitled to all

the benefits of this Indenture equally and proportionately with any and all

other Debt Securities duly issued hereunder. 

All Debt Securities shall be held and owned upon the express condition

that, to the extent permitted by applicable law, the foregoing provisions are

exclusive with respect to the replacement or payment of mutilated, destroyed,

lost or stolen Debt Securities and shall preclude any and all other rights or

remedies notwithstanding any law or statute existing or hereafter enacted to

the contrary with respect to the replacement or payment of negotiable

instruments or other securities without their surrender.




 




13





























 




SECTION 2.07               Temporary Debt Securities.




 




Pending the preparation of definitive Debt Securities,

the Company may execute and the Trustee shall authenticate and make available

for delivery temporary Debt Securities that are typed, printed or lithographed.

Temporary Debt Securities shall be issuable in any authorized denomination, and

substantially in the form of the definitive Debt Securities but with such

omissions, insertions and variations as may be appropriate for temporary Debt

Securities, all as may be determined by the Company.  Every such temporary Debt Security shall be executed by the

Company and be authenticated by the Trustee upon the same conditions and in

substantially the same manner, and with the same effect, as the definitive Debt

Securities.  Without unreasonable delay,

the Company will execute and deliver to the Trustee or the Authenticating Agent

definitive Debt Securities and thereupon any or all temporary Debt Securities

may be surrendered in exchange therefor, at the Principal Office of the Trustee

or at any office or agency maintained by the Company for such purpose as

provided in Section 3.02, and the Trustee or the Authenticating Agent

shall authenticate and make available for delivery in exchange for such

temporary Debt Securities a like aggregate principal amount of such definitive

Debt Securities.  Such exchange shall be

made by the Company at its own expense and without any charge therefor except

that in case of any such exchange involving a registration of transfer the Company

may require payment of a sum sufficient to cover any tax, fee or other

governmental charge that may be imposed in relation thereto.  Until so exchanged, the temporary Debt

Securities shall in all respects be entitled to the same benefits under this

Indenture as definitive Debt Securities authenticated and delivered hereunder.




 




SECTION 2.08               Payment of Interest.




 




Each Debt Security will bear interest at the then

applicable Interest Rate from and including each Interest Payment Date or, in

the case of the first interest period, the original date of issuance of such

Debt Security to, but excluding, the next succeeding Interest Payment Date or,

in the case of the last interest period, the Redemption Date, Special

Redemption Date or Maturity Date, as applicable, on the principal thereof, on

any overdue principal and (to the extent that payment of such interest is

enforceable under applicable law) on Deferred Interest and on any overdue

installment of interest (including Defaulted Interest), payable (subject to the

provisions of Article XII) on each Interest Payment Date commencing on

October 7, 2002.  Interest and any

Deferred Interest on any Debt Security that is payable, and is punctually paid

or duly provided for, on any Interest Payment Date shall be paid to the Person

in whose name said Debt Security (or one or more Predecessor Securities) is

registered at the close of business on the regular record date for such

interest installment, except that interest and any Deferred Interest payable on

the Maturity Date shall be paid to the Person to whom principal is paid.  In the event that any Debt Security or

portion thereof is called for redemption and the redemption date is subsequent

to a regular record date with respect to any Interest Payment Date and prior to

such Interest Payment Date, interest on such Debt Security will be paid upon

presentation and surrender of such Debt Security.




 




Any interest on any Debt Security, other than Deferred

Interest, that is payable, but is not punctually paid or duly provided for, on

any Interest Payment Date (herein called “Defaulted Interest”) shall forthwith

cease to be payable to the registered holder on the relevant regular record

date by virtue of having been such holder, and such Defaulted Interest shall be




 




14





























 




paid by the Company to

the Persons in whose names such Debt Securities (or their respective

Predecessor Securities) are registered at the close of business on a special

record date for the payment of such Defaulted Interest, which shall be fixed in

the following manner:  the Company shall

notify the Trustee in writing of the amount of Defaulted Interest proposed to

be paid on each such Debt Security and the date of the proposed payment, and at

the same time the Company shall deposit with the Trustee an amount of money

equal to the aggregate amount proposed to be paid in respect of such Defaulted

Interest or shall make arrangements satisfactory to the Trustee for such

deposit prior to the date of the proposed payment, such money when deposited to

be held in trust for the benefit of the Persons entitled to such Defaulted

Interest as in this clause provided. 

Thereupon the Trustee shall fix a special record date for the payment of

such Defaulted Interest which shall not be more than fifteen nor less than

ten days prior to the date of the proposed payment and not less than

ten days after the receipt by the Trustee of the notice of the proposed

payment.  The Trustee shall promptly

notify the Company of such special record date and, in the name and at the

expense of the Company, shall cause notice of the proposed payment of such

Defaulted Interest and the special record date therefor to be mailed, first

class postage prepaid, to each Securityholder at his or her address as it

appears in the Debt Security Register, not less than ten days prior to

such special record date.  Notice of the

proposed payment of such Defaulted Interest and the special record date

therefor having been mailed as aforesaid, such Defaulted Interest shall be paid

to the Persons in whose names such Debt Securities (or their respective

Predecessor Securities) are registered on such special record date and

thereafter the Company shall have no further payment obligation in respect of

the Defaulted Interest.




 




Any interest scheduled to become payable on an

Interest Payment Date occurring during an Extension Period shall not be

Defaulted Interest and shall be payable on such other date as may be specified

in the terms of such Debt Securities.




 




The term “regular record date” as used in this Section

shall mean the fifteenth day prior to an Interest Payment Date whether or

not such date is a Business Day.




 




Subject to the foregoing provisions of this Section,

each Debt Security delivered under this Indenture upon registration of transfer

of or in exchange for or in lieu of any other Debt Security shall carry the

rights to interest accrued and unpaid, and to accrue, that were carried by such

other Debt Security.




 




SECTION 2.09               Cancellation of Debt

Securities Paid, etc.




 




All Debt Securities surrendered for the purpose of

payment, redemption, exchange or registration of transfer, shall, if

surrendered to the Company or any paying agent, be surrendered to the Trustee

and promptly canceled by it, or, if surrendered to the Trustee or any

Authenticating Agent, shall be promptly canceled by it, and no Debt Securities

shall be issued in lieu thereof except as expressly permitted by any of the

provisions of this Indenture.  All Debt

Securities canceled by any Authenticating Agent shall be delivered to the

Trustee.  The Trustee shall destroy all

canceled Debt Securities unless the Company otherwise directs the Trustee in

writing.  If the Company shall acquire

any of the Debt Securities, however, such acquisition shall not operate as a

redemption or satisfaction of the indebtedness represented by such Debt

Securities unless and until the same are surrendered to the Trustee for

cancellation.




 




15





























 




SECTION 2.10               Computation of Interest.




 




(a)           The amount of interest payable

for any interest period will be computed on the basis of a 360-day year and the

actual number of days elapsed in the relevant interest period; provided,

however, that upon the occurrence of a Special Event Redemption pursuant

to Section 10.02 the amounts payable pursuant to this Indenture shall be

calculated as set forth in the definition of Special Redemption Price.




 




(b)           LIBOR shall be determined by

the Calculation Agent in accordance with the following provisions:




 




(i)            On the second

LIBOR Business Day (provided, that on such day commercial banks

are open for business (including dealings in foreign currency deposits) in

London (a “LIBOR Banking Day”), and otherwise the next preceding LIBOR Business

Day that is also a LIBOR Banking Day) prior to January 15th, April

15th, July 15th and October 15th (except, with

respect to the first interest payment period, on July 9, 2002) (each such day, a “LIBOR Determination Date”),

LIBOR shall equal the rate, as obtained by the Calculation Agent for

three-month U.S. Dollar deposits in Europe, which appears on Telerate

Page 3750 (as defined in the International Swaps and Derivatives

Association, Inc. 1991 Interest Rate and Currency Exchange Definitions) or such

other page as may replace such Telerate Page 3750, as of 11:00 a.m.

(London time) on such LIBOR Determination Date, as reported by Bloomberg

Financial Markets Commodities News; provided, however, that in

the case of the first interest payment period, LIBOR will be interpolated from

LIBOR for three-month U.S. Dollar deposits in Europe and LIBOR for

four-month U.S. Dollar deposits in Europe on a straight-line basis.  “LIBOR Business Day” means any day that is

not a Saturday, Sunday or other day on which commercial banking institutions in

New York, New York or Wilmington, Delaware are authorized or obligated by law

or executive order to be closed. If such rate is superseded on Telerate

Page 3750 by a corrected rate before 12:00 noon (London time) on the

same LIBOR Determination Date, the corrected rate as so substituted will be the

applicable LIBOR for that LIBOR Determination Date.




 




(ii)           If, on any LIBOR Determination Date, such rate does

not appear on Telerate Page 3750 as reported by Bloomberg Financial

Markets Commodities News or such other page as may replace such Telerate

Page 3750, the Calculation Agent shall determine the arithmetic mean of

the offered quotations of the Reference Banks (as defined below) to leading

banks in the London interbank market for three-month U.S. Dollar deposits

in Europe (in an amount determined by the Calculation Agent) by reference to

requests for quotations as of approximately 11:00 a.m. (London time) on

the LIBOR Determination Date made by the Calculation Agent to the Reference

Banks.  If, on any LIBOR Determination

Date, at least two of the Reference Banks provide such quotations, LIBOR shall

equal the arithmetic mean of such quotations. 

If, on any LIBOR Determination Date, only one or none of the Reference

Banks provide such a quotation, LIBOR shall be deemed to be the arithmetic mean

of the offered quotations that at least two leading banks in the City of New

York (as selected by the Calculation Agent) are quoting on the relevant LIBOR

Determination Date for three-month U.S. Dollar deposits in Europe at approximately

11:00 a.m. (London time) (in an amount determined by the




 




16





























 




Calculation Agent). As used

herein, “Reference Banks” means four major banks in the London interbank market

selected by the Calculation Agent.




 




(iii)          If the Calculation Agent is required but is unable

to determine a rate in accordance with at least one of the procedures provided

above, LIBOR shall be LIBOR in effect on the previous LIBOR Determination Date

(whether or not LIBOR for such period was in fact determined on such LIBOR

Determination Date).




 




(c)           All percentages resulting from

any calculations on the Debt Securities will be rounded, if necessary, to the

nearest one hundred-thousandth of a percentage point, with five one-millionths

of a percentage point rounded upward (e.g., 9.876545% (or .09876545) being

rounded to 9.87655% (or .0987655)), and all dollar amounts used in or resulting

from such calculation will be rounded to the nearest cent (with one-half cent

being rounded upward).




 




(d)           On each LIBOR Determination

Date, the Calculation Agent shall notify, in writing, the Company and the

Paying Agent of the applicable Interest Rate in effect for the related Interest

Payment Date.  The Calculation Agent

shall, upon the request of the holder of any Debt Securities, provide the

Interest Rate then in effect.  All

calculations made by the Calculation Agent in the absence of manifest error

shall be conclusive for all purposes and binding on the Company and the Holders

of the Debt Securities.  The Paying

Agent shall be entitled to rely on information received from the Calculation

Agent or the Company as to the Interest Rate. 

The Company shall, from time to time, provide any necessary information

to the Paying Agent relating to any original issue discount and interest on the

Debt Securities that is included in any payment and reportable for taxable

income calculation purposes.




 




SECTION 2.11               Extension of Interest Payment

Period.




 




So long as no Event of Default has occurred and is

continuing, the Company shall have the right, from time to time and without

causing an Event of Default, to defer payments of interest on the Debt

Securities by extending the interest payment period on the Debt Securities, at

any time and from time to time during the term of the Debt Securities, for up

to twenty consecutive quarterly periods (each such extended interest payment

period, an “Extension Period”), during which Extension Period no interest shall

be due and payable (except any Additional Interest that may be due and

payable).  No Extension Period may end

on a date other than an Interest Payment Date. 

During any Extension Period, interest will continue to accrue on the

Debt Securities, and interest on such accrued interest (such accrued interest

and interest thereon referred to herein as “Deferred Interest”) will accrue, at

the Interest Rate, compounded quarterly from the date such Deferred Interest

would have been payable were it not for the Extension Period, both to the

extent permitted by law.  No interest or

Deferred Interest shall be due and payable during an Extension Period, except

at the end thereof.  At the end of any

such Extension Period the Company shall pay all Deferred Interest then accrued

and unpaid on the Debt Securities; provided, however, that no

Extension Period may extend beyond the Maturity Date; and provided  further,

however, that during any such Extension Period, the Company shall be

subject to the restrictions set forth in Section 3.08 of this

Indenture.  Prior to the termination of

any Extension Period, the Company may further extend such period, provided,

that such period together with all such previous and further consecutive

extensions thereof shall not exceed twenty consecutive quarterly periods, or

extend beyond the Maturity Date.  Upon

the




 




17





























 




termination of any

Extension Period and upon the payment of all Deferred Interest, the Company may

commence a new Extension Period, subject to the foregoing requirements.  The Company must give the Trustee notice of

its election to begin such Extension Period at least one Business Day prior to

the earlier of (i) the next succeeding date on which interest on the Debt

Securities would have been payable except for the election to begin such Extension

Period or (ii) the date such interest is payable, but in any event not

later than the related regular record date. 

The Trustee shall give notice of the Company’s election to begin a new

Extension Period to the Securityholders.




 




SECTION 2.12               CUSIP Numbers.




 




The Company in issuing the Debt 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 Securityholders; provided,

that any such notice may state that no representation is made as to the

correctness of such numbers either as printed on the Debt Securities or as

contained in any notice of a redemption and that reliance may be placed only on

the other identification numbers printed on the Debt Securities, and any such

redemption shall not be affected by any defect in or omission of such

numbers.  The Company will promptly

notify the Trustee in writing of any change in the CUSIP numbers.




 




ARTICLE III


PARTICULAR COVENANTS OF THE COMPANY




 




SECTION 3.01               Payment of Principal, Premium

and Interest; Agreed Treatment of the Debt Securities.




 




(a)           The Company covenants and

agrees that it will duly and punctually pay or cause to be paid the principal

of and premium, if any, and interest on the Debt Securities at the place, at

the respective times and in the manner provided in this Indenture and the Debt

Securities.  At the option of the

Company, each installment of interest on the Debt Securities may be paid

(i) by mailing checks for such interest payable to the order of the

holders of Debt Securities entitled thereto as they appear on the Debt Security

Register or (ii) by wire transfer to any account with a banking

institution located in the United States designated by such Person to the

paying agent no later than the related record date.




 




(b)           The Company will treat the

Debt Securities as indebtedness, and the interest payable in respect of such

Debt Securities as interest, for all U.S. federal income tax

purposes.  All payments in respect of

such Debt Securities will be made free and clear of U.S. withholding tax

to any beneficial owner thereof that has provided an Internal Revenue Service

Form W-8 BEN (or any substitute or successor form) establishing its non-U.S.

status for U.S. federal income tax purposes.




 




(c)           As of the date of this

Indenture, the Company has no intention to exercise its right under

Section 2.11 to defer payments of interest on the Debt Securities by

commencing an Extension Period.




 




18





























 




(d)           As of the date of this

Indenture, the Company believes that the likelihood that it would exercise its

right under Section 2.11 to defer payments of interest on the Debt

Securities by commencing an Extension Period at any time during which the Debt

Securities are outstanding is remote because of the restrictions that would be

imposed on the Company’s ability to declare or pay dividends or distributions

on, or to redeem, purchase or make a liquidation payment with respect to, any

of its outstanding equity and on the Company’s ability to make any payments of

principal of or interest on, or repurchase or redeem, any of its debt

securities that rank pari passu in all respects with (or junior

in interest to) the Debt Securities.




 




SECTION 3.02               Offices for Notices and

Payments, etc.




 




So long as any of the Debt Securities remain

outstanding, the Company will maintain in Wilmington, Delaware or in Sioux

Falls, South Dakota an office or agency where the Debt Securities may be

presented for payment, an office or agency where the Debt Securities may be

presented for registration of transfer and for exchange as provided in this

Indenture and an office or agency where notices and demands to or upon the

Company in respect of the Debt Securities or of this Indenture may be served.  The Company will give to the Trustee written

notice of the location of any such office or agency and of any change of

location thereof.  Until otherwise

designated from time to time by the Company in a notice to the Trustee, or

specified as contemplated by Section 2.05, such office or agency for all

of the above purposes shall be the Principal Office of the Trustee.  In case the Company shall fail to maintain

any such office or agency in Wilmington, Delaware or in Sioux Falls, South

Dakota, or shall fail to give such notice of the location or of any change in

the location thereof, presentations and demands may be made and notices may be

served at the Principal Office of the Trustee.




 




In addition to any such office or agency, the Company

may from time to time designate one or more offices or agencies outside

Wilmington, Delaware or Sioux Falls, South Dakota where the Debt Securities may

be presented for registration of transfer and for exchange in the manner

provided in this Indenture, and the Company may from time to time rescind such

designation, as the Company may deem desirable or expedient; provided, however,

that no such designation or rescission shall in any manner relieve the Company

of its obligation to maintain any such office or agency in Wilmington, Delaware

or in Sioux Falls, South Dakota for the purposes above mentioned.  The Company will give to the Trustee prompt

written notice of any such designation or rescission thereof.




 




SECTION 3.03               Appointments to Fill Vacancies

in Trustee’s Office.




 




The Company, whenever necessary to avoid or fill a

vacancy in the office of Trustee, will appoint, in the manner provided in

Section 6.09, a Trustee, so that there shall at all times be a Trustee

hereunder.




 




SECTION 3.04               Provision as to Paying Agent.




 




(a)           If the Company shall appoint a

paying agent other than the Trustee, it will cause such paying agent to execute

and deliver to the Trustee an instrument in which such agent shall agree with

the Trustee, subject to the provision of this Section 3.04,




 




19





























 




(i)            that it will hold all sums held by it as such

agent for the payment of the principal of and premium, if any, or interest, if

any, on the Debt Securities (whether such sums have been paid to it by the

Company or by any other obligor on the Debt Securities) in trust for the

benefit of the holders of the Debt Securities;




 




(ii)           that it will give the Trustee prompt written notice

of any failure by the Company (or by any other obligor on the Debt Securities)

to make any payment of the principal of and premium, if any, or interest, if

any, on the Debt Securities when the same shall be due and payable; and




 




(iii)          that it will, at any time during the continuance of

any Event of Default, upon the written request of the Trustee, forthwith pay to

the Trustee all sums so held in trust by such paying agent.




 




(b)           If the Company shall act as

its own paying agent, it will, on or before each due date of the principal of

and premium, if any, or interest, if any, on the Debt Securities, set aside,

segregate and hold in trust for the benefit of the holders of the Debt

Securities a sum sufficient to pay such principal, premium or interest so

becoming due and will notify the Trustee in writing of any failure to take such

action and of any failure by the Company (or by any other obligor under the

Debt Securities) to make any payment of the principal of and premium, if any,

or interest, if any, on the Debt Securities when the same shall become due and

payable.




 




Whenever the Company shall have one or more paying

agents for the Debt Securities, it will, on or prior to each due date of the

principal of and premium, if any, or interest, if any, on the Debt Securities,

deposit with a paying agent a sum sufficient to pay the principal, premium or

interest so becoming due, such sum to be held in trust for the benefit of the

Persons entitled thereto and (unless such paying agent is the Trustee) the

Company shall promptly notify the Trustee in writing of its action or failure

to act.




 




(c)           Anything in this Section 3.04

to the contrary notwithstanding, the Company may, at any time, for the purpose

of obtaining a satisfaction and discharge with respect to the Debt Securities,

or for any other reason, pay, or direct any paying agent to pay to the Trustee

all sums held in trust by the Company or any such paying agent, such sums to be

held by the Trustee upon the same terms and conditions herein contained.




 




(d)           Anything in this

Section 3.04 to the contrary notwithstanding, the agreement to hold sums

in trust as provided in this Section 3.04 is subject to

Sections 12.03 and 12.04.




 




(e)           The Company hereby initially

appoints the Trustee to act as paying agent.




 




SECTION 3.05               Certificate to Trustee.




 




The Company will deliver to the Trustee on or before

120 days after the end of each fiscal year, so long as Debt Securities are

outstanding hereunder, a Certificate stating that in the course of the

performance by the signers of their duties as officers of the Company they

would normally have knowledge of any default by the Company in the performance

of any




 




20





























 




covenants contained

herein, stating whether or not they have knowledge of any such default and, if

so, specifying each such default of which the signers have knowledge and the

nature thereof.




 




SECTION 3.06               Additional Interest.




 




If and for so long as the Trust is the holder of all

Debt Securities and is subject to any additional taxes (including withholding

taxes), duties, assessments or other governmental charges as a result of a Tax

Event, the Company will pay such additional amounts (the “Additional Interest”)

on the Debt Securities as shall be required so that the net amounts received

and retained by the Trust after paying taxes, duties, assessments or other

governmental charges will be equal to the amounts the Trust would have received

if no such taxes, duties, assessments or other governmental charges had been

imposed.  Whenever in this Indenture or

the Debt Securities there is a reference in any context to the payment of

principal of or interest on the Debt Securities, such mention shall be deemed

to include mention of payments of the Additional Interest provided for in this

paragraph to the extent that, in such context, Additional Interest is, was or

would be payable in respect thereof pursuant to the provisions of this

paragraph and express mention of the payment of Additional Interest (if

applicable) in any provisions hereof shall not be construed as excluding

Additional Interest in those provisions hereof where such express mention is

not made, provided, however, that the deferral of the payment of

interest during an Extension Period pursuant to Section 2.11 shall not

defer the payment of any Additional Interest that may be due and payable.




 




SECTION 3.07               Compliance with Consolidation

Provisions.




 




The Company will not, while any of the Debt Securities

remain outstanding, consolidate with, or merge into, any other Person, or merge

into itself, or sell or convey all or substantially all of its property to any

other Person unless the provisions of Article XI hereof are complied with.




 




SECTION 3.08               Limitation on Dividends.




 




If Debt Securities are initially issued to the Trust

or a trustee of such Trust in connection with the issuance of Trust Securities

by the Trust (regardless of whether Debt Securities continue to be held by such

Trust) and (i) there shall have occurred and be continuing an Event of

Default, (ii) the Company shall be in default with respect to its payment

of any obligations under the Capital Securities Guarantee or (iii) the

Company shall have given notice of its election to defer payments of interest

on the Debt Securities by extending the interest payment period as provided

herein and such period, or any extension thereof, shall have commenced and be

continuing, then the Company may not (A) declare or pay any dividends or

distributions on, or redeem, purchase, acquire, or make a liquidation payment

with respect to, any of the Company’s capital stock or (B) make any

payment of principal of or interest or premium, if any, on or repay, repurchase

or redeem any debt securities of the Company that rank pari passu in  all

respects with or junior in interest to the Debt Securities (other than

(a) repurchases, redemptions or other acquisitions of shares of capital stock

of the Company (I) in connection with any employment contract, benefit

plan or other similar arrangement with or for the benefit of one or more

employees, officers, directors or consultants, (II) in connection with a

dividend reinvestment or stockholder stock purchase plan or (III) in

connection with the




 




21





























 




issuance of capital stock

of the Company (or securities convertible into or exercisable for such capital

stock), as consideration in an acquisition transaction entered into prior to

the occurrence of (i), (ii) or (iii) above, (b) as a result of any

exchange or conversion of any class or series of the Company’s capital stock

(or any capital stock of a subsidiary of the Company) for any class or series

of the Company’s capital stock or of any class or series of the Company’s

indebtedness for any class or series of the Company’s capital stock,

(c) the purchase of fractional interests in shares of the Company’s

capital stock pursuant to the conversion or exchange provisions of such capital

stock or the security being converted or exchanged, (d) any declaration of

a dividend in connection with any stockholder’s rights plan, or the issuance of

rights, stock or other property under any stockholder’s rights plan, or the

redemption or repurchase of rights pursuant thereto, or (e) any dividend

in the form of stock, warrants, options or other rights where the dividend

stock or the stock issuable upon exercise of such warrants, options or other

rights is the same stock as that on which the dividend is being paid or ranks pari passu

with or junior to such stock).




 




SECTION 3.09               Covenants as to the Trust.




 




For so long as such Trust Securities remain

outstanding, the Company shall maintain 100% ownership of the Common Securities;

provided, however, that any permitted successor of the Company

under this Indenture that is a U.S. Person may succeed to the Company’s

ownership of such Common Securities. 

The Company, as owner of the Common Securities, shall use commercially reasonable

efforts to cause the Trust (a) to remain a statutory business trust,

except in connection with a distribution of Debt Securities to the holders of

Trust Securities in liquidation of the Trust, the redemption of all of the

Trust Securities or certain mergers, consolidations or amalgamations, each as

permitted by the Declaration, (b) to otherwise continue to be classified

as a grantor trust for United States federal income tax purposes and

(c) to cause each holder of Trust Securities to be treated as owning an

undivided beneficial interest in the Debt Securities.




 




ARTICLE IV


LISTS AND REPORTS 


BY THE COMPANY AND THE TRUSTEE




 




SECTION 4.01               Securityholders’ Lists.




 




The Company covenants and agrees that it will furnish

or cause to be furnished to the Trustee:




 




(a)           on each regular record date

for an Interest Payment Date, a list, in such form as the Trustee may

reasonably require, of the names and addresses of the Securityholders of the

Debt Securities as of such record date; and




 




(b)           at such other times as the

Trustee may request in writing, within 30 days after the receipt by the

Company of any such request, a list of similar form and content as of a date

not more than 15 days prior to the time such list is furnished;




 




22





























 




except that no such lists need be furnished under this

Section 4.01 so long as the Trustee is in possession thereof by reason of

its acting as Debt Security registrar.




 




SECTION 4.02               Preservation and Disclosure of

Lists.




 




(a)           The Trustee shall preserve, in

as current a form as is reasonably practicable, all information as to the names

and addresses of the holders of Debt Securities (1) contained in the most

recent list furnished to it as provided in Section 4.01 or (2) received

by it in the capacity of Debt Securities registrar (if so acting)

hereunder.  The Trustee may destroy any

list furnished to it as provided in Section 4.01 upon receipt of a new

list so furnished.




 




(b)           In case three or more holders

of Debt Securities (hereinafter referred to as “applicants”) apply in writing

to the Trustee and furnish to the Trustee reasonable proof that each such

applicant has owned a Debt Security for a period of at least six months

preceding the date of such application, and such application states that the

applicants desire to communicate with other holders of Debt Securities with

respect to their rights under this Indenture or under such Debt Securities and

is accompanied by a copy of the form of proxy or other communication which such

applicants propose to transmit, then the Trustee shall within five Business

Days after the receipt of such application, at its election, either:




 




(i)            afford such applicants access to the information

preserved at the time by the Trustee in accordance with the provisions of

subsection (a) of this Section 4.02, or




 




(ii)           inform such applicants as to the approximate number

of holders of Debt Securities whose names and addresses appear in the

information preserved at the time by the Trustee in accordance with the

provisions of subsection (a) of this Section 4.02, and as to the

approximate cost of mailing to such Securityholders the form of proxy or other

communication, if any, specified in such application.




 




If the Trustee shall elect not to afford such

applicants access to such information, the Trustee shall, upon the written

request of such applicants, mail to each Securityholder of Debt Securities

whose name and address appear in the information preserved at the time by the

Trustee in accordance with the provisions of subsection (a) of this

Section 4.02 a copy of the form of proxy or other communication which is

specified in such request with reasonable promptness after a tender to the

Trustee of the material to be mailed and of payment, or provision for the payment,

of the reasonable expenses of mailing, unless within five days after such

tender, the Trustee shall mail to such applicants and file with the Securities

and Exchange Commission, if permitted or required by applicable law, together

with a copy of the material to be mailed, a written statement to the effect

that, in the opinion of the Trustee, such mailing would be contrary to the best

interests of the holders of all Debt Securities, as the case may be, or would

be in violation of applicable law.  Such

written statement shall specify the basis of such opinion.  If said Commission, as permitted or required

by applicable law, after opportunity for a hearing upon the objections

specified in the written statement so filed, shall enter an order refusing to

sustain any of such objections or if, after the entry of an order sustaining

one or more of such objections, said Commission shall find, after notice and

opportunity for hearing, that all the objections so sustained have been met and

shall enter an order so declaring, the Trustee shall




 




23





























 




mail copies of such

material to all such Securityholders with reasonable promptness after the entry

of such order and the renewal of such tender; otherwise the Trustee shall be

relieved of any obligation or duty to such applicants respecting their

application.




 




(c)           Each and every holder of Debt

Securities, by receiving and holding the same, agrees with the Company and the

Trustee that neither the Company nor the Trustee nor any paying agent shall be

held accountable by reason of the disclosure of any such information as to the

names and addresses of the holders of Debt Securities in accordance with the

provisions of subsection (b) of this Section 4.02, regardless of the

source from which such information was derived, and that the Trustee shall not

be held accountable by reason of mailing any material pursuant to a request

made under said subsection (b).




 




ARTICLE V


REMEDIES OF THE TRUSTEE AND SECURITYHOLDERS


UPON AN EVENT OF DEFAULT




 




SECTION 5.01               Events of Default.




 




The following events shall be “Events of Default” with

respect to Debt Securities:




 




(a)           the Company defaults in the

payment of any interest upon any Debt Security when it becomes due and payable,

and continuance of such default for a period of 30 days; for the avoidance

of doubt, an extension of any interest payment period by the Company in

accordance with Section 2.11 of this Indenture shall not constitute a

default under this clause 5.01(a); or




 




(b)           the Company defaults in the

payment of all or any part of the principal of (or premium, if any, on) any

Debt Securities as and when the same shall become due and payable either at

maturity, upon redemption, by declaration of acceleration or otherwise; or




 




(c)           the Company defaults in the

performance of, or breaches, any of its covenants or agreements in

Sections 3.06, 3.07, 3.08 and 3.09 of this Indenture (other than a

covenant or agreement a default in whose performance or whose breach is

elsewhere in this Section specifically dealt with), and continuance of such

default or breach 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 not less than 25% in aggregate principal amount

of the outstanding Debt Securities, 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)           a court having jurisdiction in

the premises shall enter a decree or order for relief in respect of the Company

in an involuntary case under any applicable bankruptcy, insolvency or other

similar law now or hereafter in effect, or appoints a receiver, liquidator,

assignee, custodian, trustee, sequestrator (or similar official) of the Company

or for any substantial part of its property, or orders the winding-up or

liquidation of its affairs and such decree or order shall remain unstayed and

in effect for a period of 90 consecutive days; or




 




(e)           the Company shall commence a

voluntary case under any applicable bankruptcy, insolvency or other similar law

now or hereafter in effect, shall consent to the entry




 




24





























 




of an order

for relief in an involuntary case under any such law, or shall consent to the

appointment of or taking possession by a receiver, liquidator, assignee,

trustee, custodian, sequestrator (or other similar official) of the Company or

of any substantial part of its property, or shall make any general assignment

for the benefit of creditors, or shall fail generally to pay its debts as they

become due; or




 




(f)            the Trust shall have

voluntarily or involuntarily liquidated, dissolved, wound-up its business or

otherwise terminated its existence except in connection with (1) the

distribution of the Debt Securities to holders of the Trust Securities in

liquidation of their interests in the Trust, (2) the redemption of all of

the outstanding Trust Securities or (3) certain mergers, consolidations or

amalgamations, each as permitted by the Declaration.




 




If an Event of Default occurs and is continuing with

respect to the Debt Securities, then, and in each and every such case, unless

the principal of the Debt Securities shall have already become due and payable,

either the Trustee or the holders of not less than 25% in aggregate principal

amount of the Debt Securities then outstanding hereunder, by notice in writing

to the Company (and to the Trustee if given by Securityholders), may declare

the entire principal of the Debt Securities and the interest accrued, but

unpaid, thereon, if any, to be due and payable immediately, and upon any such

declaration the same shall become immediately due and payable.




 




The foregoing provisions, however, are subject to the

condition that if, at any time after the principal of the Debt Securities shall

have been so declared due and payable, and before any judgment or decree for

the payment of the moneys due shall have been obtained or entered as

hereinafter provided, (i) the Company shall pay or shall deposit with the

Trustee a sum sufficient to pay all matured installments of interest upon all

the Debt Securities and the principal of and premium, if any, on the Debt

Securities which shall have become due otherwise than by acceleration (with interest

upon such principal and premium, if any, and Deferred Interest, to the extent

permitted by law) and such amount as shall be sufficient to cover reasonable

compensation to the Trustee and each predecessor Trustee, their respective

agents, attorneys and counsel, and all other amounts due to the Trustee

pursuant to Section 6.06, if any, and (ii) all Events of Default

under this Indenture, other than the non-payment of the principal of or

premium, if any, on Debt Securities which shall have become due by acceleration,

shall have been cured, waived or otherwise remedied as provided herein, then

and in every such case the holders of a majority in aggregate principal amount

of the Debt Securities then outstanding, by written notice to the Company and

to the Trustee, may waive all defaults and rescind and annul such declaration

and its consequences, but no such waiver or rescission and annulment shall

extend to or shall affect any subsequent default or shall impair any right

consequent thereon.




 




In case the Trustee shall have proceeded to enforce

any right under this Indenture and such proceedings shall have been

discontinued or abandoned because of such rescission or annulment or for any

other reason or shall have been determined adversely to the Trustee, then and

in every such case the Company, the Trustee and the holders of the Debt

Securities shall be restored respectively to their several positions and rights

hereunder, and all rights, remedies and powers of the Company, the Trustee and

the holders of the Debt Securities shall continue as though no such proceeding

had been taken.




 




25





























 




SECTION 5.02               Payment of Debt Securities on

Default; Suit Therefor.




 




The Company covenants that upon the occurrence of an

Event of Default pursuant to clause 5.01(a) or 5.01(b) and upon demand of

the Trustee, the Company will pay to the Trustee, for the benefit of the

holders of the Debt Securities, the whole amount that then shall have become

due and payable on all Debt Securities for principal and premium, if any, or

interest, or both, as the case may be, including Deferred Interest accrued on

the Debt Securities; and, in addition thereto, such further amount as shall be

sufficient to cover the costs and expenses of collection, including a

reasonable compensation to the Trustee, its agents, attorneys and counsel, and

any other amounts due to the Trustee under Section 6.06.  In case the Company shall fail forthwith to

pay such amounts upon such demand, the Trustee, in its own name and as trustee

of an express trust, shall be entitled and empowered to institute any actions

or proceedings at law or in equity for the collection of the sums so due and

unpaid, and may prosecute any such action or proceeding to judgment or final

decree, and may enforce any such judgment or final decree against the Company

or any other obligor on such Debt Securities and collect in the manner provided

by law out of the property of the Company or any other obligor on such Debt

Securities wherever situated the moneys adjudged or decreed to be payable.




 




In case there shall be pending proceedings for the

bankruptcy or for the reorganization of the Company or any other obligor on the

Debt Securities under Bankruptcy Law, or in case a receiver or trustee shall

have been appointed for the property of the Company or such other obligor, or

in the case of any other similar judicial proceedings relative to the Company

or other obligor upon the Debt Securities, or to the creditors or property of

the Company or such other obligor, the Trustee, irrespective of whether the

principal of the Debt Securities shall then be due and payable as therein

expressed or by declaration of acceleration or otherwise and irrespective of

whether the Trustee shall have made any demand pursuant to the provisions of

this Section 5.02, shall be entitled and empowered, by intervention in

such proceedings or otherwise, to file and prove a claim or claims for the

whole amount of principal and interest owing and unpaid in respect of the Debt

Securities and, in case of any judicial proceedings, to 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 reasonable

compensation to the Trustee and each predecessor Trustee, and their respective

agents, attorneys and counsel, and for reimbursement of all other amounts due

to the Trustee under Section 6.06) and of the Securityholders allowed in

such judicial proceedings relative to the Company or any other obligor on the

Debt Securities, or to the creditors or property of the Company or such other

obligor, unless prohibited by applicable law and regulations, to vote on behalf

of the holders of the Debt Securities in any election of a trustee or a standby

trustee in arrangement, reorganization, liquidation or other bankruptcy or

insolvency proceedings or Person performing similar functions in comparable

proceedings, and to collect and receive any moneys or other property payable or

deliverable on any such claims, and to distribute the same after the deduction

of its charges and expenses; and any receiver, assignee or trustee in

bankruptcy or reorganization is hereby authorized by each of the

Securityholders 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

Securityholders, to pay to the Trustee such amounts as shall be sufficient to

cover reasonable compensation to the Trustee, each predecessor Trustee and

their respective agents, attorneys and counsel, and all other amounts due to

the Trustee under Section 6.06.




 




26





























 




Nothing herein contained shall be construed to

authorize the Trustee to authorize or consent to or accept or adopt on behalf

of any Securityholder any plan of reorganization, arrangement, adjustment or

composition affecting the Debt Securities or the rights of any holder thereof

or to authorize the Trustee to vote in respect of the claim of any

Securityholder in any such proceeding.




 




All rights of action and of asserting claims under

this Indenture, or under any of the Debt Securities, may be enforced by the

Trustee without the possession of any of the Debt Securities, or the production

thereof at any trial or other proceeding relative thereto, and any such suit or

proceeding instituted by the Trustee shall be brought in its own name as

trustee of an express trust, and any recovery of judgment shall be for the

ratable benefit of the holders of the Debt Securities.




 




In any proceedings brought by the Trustee (and also

any proceedings involving the interpretation of any provision of this Indenture

to which the Trustee shall be a party) the Trustee shall be held to represent

all the holders of the Debt Securities, and it shall not be necessary to make

any holders of the Debt Securities parties to any such proceedings.




 




SECTION 5.03               Application of Moneys

Collected by Trustee.




 




Any moneys collected by the Trustee shall be applied

in the following order, at the date or dates fixed by the Trustee for the

distribution of such moneys, upon presentation of the several Debt Securities

in respect of which moneys have been collected, and stamping thereon the

payment, if only partially paid, and upon surrender thereof if fully paid:




 




First: To the payment of costs and expenses incurred

by, and reasonable fees of, the Trustee, its agents, attorneys and counsel, and

of all other amounts due to the Trustee under Section 6.06;




 




Second: To the payment of all Senior Indebtedness of

the Company if and to the extent required by Article XV;




 




Third:  To the

payment of the amounts then due and unpaid upon Debt Securities for principal

(and premium, if any), and interest on the Debt Securities, in respect of which

or for the benefit of which money has been collected, ratably, without

preference or priority of any kind, according to the amounts due on such Debt

Securities for principal (and premium, if any) and interest, respectively; and




 




Fourth: The balance, if any, to the Company.




 




SECTION 5.04               Proceedings by Securityholders.




 




No holder of any Debt Security shall have any right to

institute any suit, action or proceeding for any remedy hereunder, unless such

holder previously shall have given to the Trustee written notice of an Event of

Default with respect to the Debt Securities and unless the holders of not less

than 25% in aggregate principal amount of the Debt Securities then outstanding

shall have given the Trustee a written request to institute such action, suit

or proceeding and shall have offered to the Trustee such reasonable indemnity

as it may require




 




27





























 




against the costs,

expenses and liabilities to be incurred thereby, and the Trustee for

60 days after its receipt of such notice, request and offer of indemnity

shall have failed to institute any such action, suit or proceeding; provided,

that no holder of Debt Securities shall have any right to prejudice the

rights of any other holder of Debt Securities, obtain priority or preference

over any other such holder or enforce any right under this Indenture except in

the manner herein provided and for the equal, ratable and common benefit of all

holders of Debt Securities.




 




Notwithstanding any other provisions in this

Indenture, however, the right of any holder of any Debt Security to receive

payment of the principal of, premium, if any, and interest on such Debt

Security when due, or to institute suit for the enforcement of any such

payment, shall not be impaired or affected without the consent of such holder.  For the protection and enforcement of the

provisions of this Section, each and every Securityholder and the Trustee shall

be entitled to such relief as can be given either at law or in equity.




 




SECTION 5.05               Proceedings by Trustee.




 




In case of an Event of Default hereunder the Trustee

may in its discretion proceed to protect and enforce the rights vested in it by

this Indenture by such appropriate judicial proceedings as the Trustee shall

deem most effectual to protect and enforce any of such rights, either by suit

in equity or by action at law or by proceeding in bankruptcy or otherwise,

whether for the specific enforcement of any covenant or agreement contained in

this Indenture or in aid of the exercise of any power granted in this

Indenture, or to enforce any other legal or equitable right vested in the

Trustee by this Indenture or by law.




 




SECTION 5.06               Remedies Cumulative and

Continuing.




 




Except as otherwise provided in Section 2.06, all

powers and remedies given by this Article V to the Trustee or to the

Securityholders shall, to the extent permitted by law, be deemed cumulative and

not exclusive of any other powers and remedies available to the Trustee or the

holders of the Debt Securities, by judicial proceedings or otherwise, to

enforce the performance or observance of the covenants and agreements contained

in this Indenture or otherwise established with respect to the Debt Securities,

and no delay or omission of the Trustee or of any holder of any of the Debt

Securities to exercise any right or power accruing upon any Event of Default

occurring and continuing as aforesaid shall impair any such right or power, or

shall be construed to be a waiver of any such default or an acquiescence

therein; and, subject to the provisions of Section 5.04, every power and

remedy given by this Article V or by law to the Trustee or to the

Securityholders may be exercised from time to time, and as often as shall be

deemed expedient, by the Trustee or by the Securityholders.




 




SECTION 5.07               Direction of Proceedings and Waiver

of Defaults by Majority of Securityholders.




 




The holders of a majority in aggregate principal

amount of the Debt Securities affected (voting as one class) at the time

outstanding 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 such

Debt Securities; provided, however, that (subject to the

provisions of Section 6.01) the Trustee shall have the




 




28





























 




right to decline to

follow any such direction if the Trustee shall determine that the action so

directed would be unjustly prejudicial to the holders not taking part in such

direction or if the Trustee being advised by counsel determines that the action

or proceeding so directed may not lawfully be taken or if a Responsible Officer

of the Trustee shall determine that the action or proceedings so directed would

involve the Trustee in personal liability. 

Prior to any declaration accelerating the maturity of the Debt

Securities, the holders of a majority in aggregate principal amount of the Debt

Securities at the time outstanding may on behalf of the holders of all of the

Debt Securities waive (or modify any previously granted waiver of) any past

default or Event of Default and its consequences, except a default (a) in

the payment of principal of, premium, if any, or interest on any of the Debt

Securities, (b) in respect of covenants or provisions hereof which cannot

be modified or amended without the consent of the holder of each Debt Security

affected, or (c)  in respect of the covenants contained in

Section 3.09; provided, however, that if the Debt Securities

are held by the Trust or a trustee of such trust, such waiver or modification

to such waiver shall not be effective until the holders of a majority in

liquidation preference of the Trust Securities of the Trust shall have

consented to such waiver or modification to such waiver; provided, further,

that if the consent of the holder of each outstanding Debt Security is

required, such waiver shall not be effective until each holder of the Trust

Securities of the Trust shall have consented to such waiver.  Upon any such waiver, the default covered

thereby shall be deemed to be cured for all purposes of this Indenture and the

Company, the Trustee and the holders of the Debt Securities shall be restored

to their former positions and rights hereunder, respectively; but no such

waiver shall extend to any subsequent or other default or Event of Default or

impair any right consequent thereon. 

Whenever any default or Event of Default hereunder shall have been

waived as permitted by this Section 5.07, said default or Event of Default

shall for all purposes of the Debt Securities and this Indenture be deemed to

have been cured and to be not continuing.




 




SECTION 5.08               Notice of Defaults.




 




The Trustee shall, within 90 days after a

Responsible Officer of the Trustee shall have actual knowledge or received

written notice of the occurrence of a default with respect to the Debt

Securities, mail to all Securityholders, as the names and addresses of such

holders appear upon the Debt Security Register, notice of all defaults with

respect to the Debt Securities known to the Trustee, unless such defaults shall

have been cured before the giving of such notice (the term “defaults” for the

purpose of this Section 5.08 being hereby defined to be the events

specified in subsections (a), (b), (c), (d) and (e) of Section 5.01,

not including periods of grace, if any, provided for therein); provided,

that, except in the case of default in the payment of the principal of,

premium, if any, or interest on any of the Debt Securities, the Trustee shall

be protected in withholding such notice if and so long as a Responsible Officer

of the Trustee in good faith determines that the withholding of such notice is

in the interests of the Securityholders.




 




SECTION 5.09               Undertaking to Pay Costs.




 




All parties to this Indenture agree, and each holder

of any Debt 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 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




 




29





























 




discretion assess

reasonable costs, including reasonable attorneys’ fees and expenses, 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 5.09 shall not apply to any suit instituted by the Trustee,

to any suit instituted by any Securityholder, or group of Securityholders,

holding in the aggregate more than 10% in principal amount of the Debt

Securities outstanding, or to any suit instituted by any Securityholder for the

enforcement of the payment of the principal of (or premium, if any) or interest

on any Debt Security against the Company on or after the same shall have become

due and payable.




 




ARTICLE VI


CONCERNING THE TRUSTEE




 




SECTION 6.01               Duties and Responsibilities of

Trustee.




 




With respect to the holders of Debt Securities issued

hereunder, the Trustee, prior to the occurrence of an Event of Default with

respect to the Debt Securities and after the curing or waiving of all Events of

Default which may have occurred, with respect to the Debt Securities,

undertakes to perform such duties and only such duties as are specifically set

forth in this Indenture.  In case an

Event of Default with respect to the Debt Securities has occurred (which has

not been cured or waived) the Trustee shall exercise such of 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 person would exercise or use under the

circumstances in the conduct of such person’s own affairs.




 




No provision of this Indenture shall be construed to

relieve the Trustee from liability for its own negligent action, its own

negligent failure to act or its own willful misconduct, except that:




 




(a)           prior to the occurrence of an

Event of Default with respect to the Debt Securities and after the curing or

waiving of all Events of Default which may have occurred:




 




(i)            the duties and obligations of the Trustee with

respect to the Debt Securities shall be determined solely by the express

provisions of this Indenture, and the Trustee shall not be liable except for

the performance of such duties and obligations with respect to the Debt

Securities as are specifically set forth in this Indenture, and no implied

covenants or obligations shall be read into this Indenture against the Trustee;

and




 




(ii)           in the absence of bad faith on the part of the

Trustee, the Trustee may conclusively rely, as to the truth of the statements

and the correctness of the opinions expressed therein, upon any certificates or

opinions furnished to the Trustee and conforming to the requirements of this

Indenture; but, in the case of any such certificates or opinions which by any

provision hereof are specifically required to be furnished to the Trustee, the

Trustee shall be under a duty to examine the same to determine whether or not

they conform on their face to the requirements of this Indenture;




 




30





























 




(b)           the Trustee shall not be

liable for any error of judgment made in good faith by a Responsible Officer or

Officers of the Trustee, unless it shall be proved that the Trustee was

negligent in ascertaining the pertinent facts;




 




(c)           the Trustee shall not be

liable with respect to any action taken or omitted to be taken by it in good

faith, in accordance with the direction of the Securityholders pursuant to

Section 5.07, 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; and




 




(d)           the Trustee shall not be

charged with knowledge of any Default or Event of Default with respect to the

Debt Securities unless either (1) a Responsible Officer shall have actual

knowledge of such Default or Event of Default or (2) written notice of

such Default or Event of Default shall have been given to the Trustee by the

Company or any other obligor on the Debt Securities or by any holder of the

Debt Securities, except with respect to an Event of Default pursuant to

Sections 5.01(a) or 5.01(b) hereof (other than an Event of Default

resulting from the default in the payment of Additional Interest or premium, if

any, if the Trustee does not have actual knowledge or written notice that such

payment is due and payable), of which the Trustee shall be deemed to have

knowledge.




 




None of the provisions contained in this Indenture

shall require the Trustee to expend or risk its own funds or otherwise incur

personal financial liability in the performance of any of its duties or in the

exercise of any of its rights or powers.




 




SECTION 6.02               Reliance on Documents, Opinions, etc.




 




Except as otherwise provided in Section 6.01:




 




(a)           the Trustee may conclusively

rely and shall be fully protected in acting or refraining from acting upon any

resolution, certificate, statement, instrument, opinion, report, notice,

request, consent, order, bond, note, debenture or other paper or document

believed by it in good faith to be genuine and to have been signed or presented

by the proper party or parties;




 




(b)           any request, direction, order

or demand of the Company mentioned herein shall be sufficiently evidenced by an

Officers’ Certificate (unless other evidence in respect thereof be herein

specifically prescribed); and any Board Resolution may be evidenced to the

Trustee by a copy thereof certified by the Secretary or an Assistant Secretary

of the Company;




 




(c)           the Trustee may consult with

counsel of its selection and any advice or Opinion of Counsel shall be full and

complete authorization and protection in respect of any action taken, suffered

or omitted by it hereunder in good faith and in accordance with such advice or

Opinion of Counsel;




 




(d)           the Trustee shall be under no

obligation to exercise any of the rights or powers vested in it by this

Indenture at the request, order or direction of any of the Securityholders,

pursuant to the provisions of this Indenture, unless such Securityholders shall

have offered to the Trustee reasonable security or indemnity against the costs,

expenses and liabilities which may be incurred therein or thereby;




 




31





























 




(e)           the Trustee shall not be

liable for any action taken or omitted by it in good faith and believed by it

to be authorized or within the discretion or rights or powers conferred upon it

by this Indenture; nothing contained herein shall, however, relieve the Trustee

of the obligation, upon the occurrence of an Event of Default with respect to

the Debt Securities (that has not been cured or waived) to exercise with

respect to the Debt Securities such of the rights and powers vested in it by

this Indenture, and to 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 such person’s own affairs;




 




(f)            the Trustee shall not be

bound to make any investigation into the facts or matters stated in any

resolution, certificate, statement, instrument, opinion, report, notice,

request, consent, order, approval, bond, debenture, coupon or other paper or

document, unless requested in writing to do so by the holders of not less than

a majority in principal amount of the outstanding Debt Securities affected

thereby; provided, however, that if the payment within a reasonable time to the

Trustee of the costs, expenses or liabilities likely to be incurred by it in

the making of such investigation is, in the opinion of the Trustee, not

reasonably assured to the Trustee by the security afforded to it by the terms

of this Indenture, the Trustee may require reasonable indemnity against such

expense or liability as a condition to so proceeding; and




 




(g)           the Trustee may execute any of

the trusts or powers hereunder or perform any duties hereunder either directly

or by or through agents (including any Authenticating Agent) or attorneys, and

the Trustee shall not be responsible for any misconduct or negligence on the

part of any such agent or attorney appointed by it with due care.




 




SECTION 6.03               No Responsibility for

Recitals, etc.




 




The recitals contained herein and in the Debt

Securities (except in the certificate of authentication of the Trustee or the

Authenticating Agent) shall be taken as the statements of the Company and the

Trustee and the Authenticating Agent assume no responsibility for the

correctness of the same.  The Trustee and

the Authenticating Agent make no representations as to the validity or

sufficiency of this Indenture or of the Debt Securities.  The Trustee and the Authenticating Agent

shall not be accountable for the use or application by the Company of any Debt

Securities or the proceeds of any Debt Securities authenticated and delivered

by the Trustee or the Authenticating Agent in conformity with the provisions of

this Indenture.




 




SECTION 6.04               Trustee, Authenticating Agent,

Paying Agents, Transfer Agents or Registrar May Own Debt Securities.




 




The Trustee or any Authenticating Agent or any paying

agent or any transfer agent or any Debt Security registrar, in its individual

or any other capacity, may become the owner or pledgee of Debt Securities with

the same rights it would have if it were not Trustee, Authenticating Agent,

paying agent, transfer agent or Debt Security registrar.




 




SECTION 6.05               Moneys to be Held in Trust.




 




Subject to the provisions of Section 12.04, all

moneys received by the Trustee or any paying agent shall, until used or applied

as herein provided, be held in trust for the purpose




 




32





























 




for which they were

received, but need not be segregated from other funds except to the extent

required by law.  The Trustee and any

paying agent shall be under no liability for interest on any money received by

it hereunder except as otherwise agreed in writing with the Company.  So long as no Event of Default shall have

occurred and be continuing, all interest allowed on any such moneys, if any,

shall be paid from time to time to the Company upon the written order of the

Company, signed by the Chairman of the Board of Directors, the President, the

Chief Operating Officer, a Vice President, the Treasurer or an Assistant Treasurer

of the Company.




 




SECTION 6.06               Compensation and Expenses of

Trustee.




 




The Company covenants and agrees to pay to the Trustee

from time to time, and the Trustee shall be entitled to, such compensation as

shall be agreed to in writing between the Company and the Trustee (which shall

not be limited by any provision of law in regard to the compensation of a

trustee of an express trust), and the Company will pay or reimburse the Trustee

upon its written request for all documented reasonable expenses, disbursements

and advances incurred or made by the Trustee in accordance with any of the

provisions of this Indenture (including the reasonable compensation and the

reasonable expenses and disbursements of its counsel and of all Persons not

regularly in its employ) except any such expense, disbursement or advance that

arises from its negligence or bad faith. 

The Company also covenants to indemnify each of the Trustee (including

in its individual capacity) and any predecessor Trustee (and its officers,

agents, directors and employees) for, and to hold it harmless against, any and

all loss, damage, claim, liability or expense including taxes (other than taxes

based on the income of the Trustee), except to the extent such loss, damage,

claim, liability or expense results from the negligence or bad faith of such

indemnitee, arising out of or in connection with the acceptance or

administration of this trust, including the costs and expenses of defending

itself against any claim or liability in the premises.  The obligations of the Company under this

Section 6.06 to compensate and indemnify the Trustee and to pay or

reimburse the Trustee for documented expenses, disbursements and advances shall

constitute additional indebtedness hereunder. 

Such additional indebtedness shall be secured by a lien prior to that of

the Debt Securities upon all property and funds held or collected by the

Trustee as such, except funds held in trust for the benefit of the holders of

particular Debt Securities.




 




Without prejudice to any other rights available to the

Trustee under applicable law, when the Trustee incurs expenses or renders

services in connection with an Event of Default specified in

subsections (d), (e) or (f) of Section 5.01, the expenses (including

the reasonable charges and expenses of its counsel) and the compensation for

the services are intended to constitute expenses of administration under any

applicable federal or state bankruptcy, insolvency or other similar law.




 




The provisions of this Section shall survive the resignation

or removal of the Trustee and the defeasance or other termination of this

Indenture.




 




SECTION 6.07               Officers’ Certificate as

Evidence.




 




Except as otherwise provided in Sections 6.01 and

6.02, whenever in the administration of the provisions of this Indenture the

Trustee shall deem it necessary or desirable that a matter be proved or

established prior to taking or omitting any action hereunder, such




 




33





























 




matter (unless other

evidence in respect thereof be herein specifically prescribed) may, in the

absence of negligence or bad faith on the part of the Trustee, be deemed to be

conclusively proved and established by an Officers’ Certificate delivered to

the Trustee, and such certificate, in the absence of negligence or bad faith on

the part of the Trustee, shall be full warrant to the Trustee for any action

taken or omitted by it under the provisions of this Indenture upon the faith

thereof.




 




SECTION 6.08               Eligibility of Trustee.




 




The Trustee hereunder shall at all times be a

U.S. Person that is a banking corporation organized and doing business

under the laws of the United States of America or any state thereof or of the

District of Columbia and authorized under such laws to exercise corporate trust

powers, having a combined capital and surplus of at least fifty million

U.S. dollars ($50,000,000) and subject to supervision or examination by

federal, state, or District of Columbia authority.  If such corporation publishes reports of condition at least

annually, pursuant to law or to the requirements of the aforesaid supervising

or examining authority, then for the purposes of this Section 6.08 the

combined capital and surplus of such corporation shall be deemed to be its

combined capital and surplus as set forth in its most recent records of

condition so published.




 




The Company may not, nor may any Person directly or

indirectly controlling, controlled by, or under common control with the

Company, serve as Trustee, notwithstanding that such corporation shall be otherwise

eligible and qualified under this Article.




 




In case at any time the Trustee shall cease to be

eligible in accordance with the provisions of this Section 6.08, the

Trustee shall resign immediately in the manner and with the effect specified in

Section 6.09.




 




If the Trustee has or shall acquire any “conflicting

interest” within the meaning of §310(b) of the Trust Indenture Act, the Trustee

shall either eliminate such interest or resign, to the extent and in the manner

provided by, and subject to this Indenture.




 




SECTION 6.09               Resignation or Removal of

Trustee.




 




(a)           The Trustee, or any trustee or

trustees hereafter appointed, may at any time resign by giving written notice

of such resignation to the Company and by mailing notice thereof, at the

Company’s expense, to the holders of the Debt Securities at their addresses as

they shall appear on the Debt Security Register.  Upon receiving such notice of resignation, the Company shall

promptly appoint a successor trustee or trustees by written instrument, in duplicate,

executed by order of its Board of Directors, one copy of which instrument shall

be delivered to the resigning Trustee and one copy to the successor

Trustee.  If no successor Trustee shall

have been so appointed and have accepted appointment within 30 days after

the mailing of such notice of resignation to the affected Securityholders, the

resigning Trustee may petition any court of competent jurisdiction for the

appointment of a successor Trustee, or any Securityholder who has been a bona fide

holder of a Debt Security or Debt Securities for at least six months may,

subject to the provisions of Section 5.09, on behalf of himself or herself

and all others similarly situated, petition any such court for the appointment

of a successor Trustee.  Such court




 




34





























 




may thereupon,

after such notice, if any, as it may deem proper and prescribe, appoint a

successor Trustee.




 




(b)           In case at any time any of the

following shall occur:




 




(i)            the Trustee shall fail to comply with the

provisions of the last paragraph of Section 6.08 after written request

therefor by the Company or by any Securityholder who has been a bona fide

holder of a Debt Security or Debt Securities for at least six months;




 




(ii)           the Trustee shall cease to be eligible in

accordance with the provisions of Section 6.08 and shall fail to resign

after written request therefor by the Company or by any such Securityholder; or




 




(iii)          the Trustee shall become incapable of acting, or

shall be adjudged bankrupt or insolvent, or a receiver of the Trustee or of its

property shall be appointed, or any public officer shall take charge or control

of the Trustee or of its property or affairs for the purpose of rehabilitation,

conservation or liquidation,




 




then, in any such case,

the Company may remove the Trustee and appoint a successor Trustee by written

instrument, in duplicate, executed by order of the Board of Directors, one copy

of which instrument shall be delivered to the Trustee so removed and one copy

to the successor Trustee, or, subject to the provisions of Section 5.09,

if no successor Trustee shall have been so appointed and have accepted

appointment within 30 days of the occurrence of any of (i), (ii) or (iii)

above, any Securityholder who has been a bona fide holder of a Debt Security or

Debt Securities for at least six months may, on behalf of himself or herself

and all others similarly situated, petition any court of competent jurisdiction

for the removal of the Trustee and the appointment of a successor Trustee.  Such court may thereupon, after such notice,

if any, as it may deem proper and prescribe, remove the Trustee and appoint a

successor Trustee.




 




(c)           Upon prior written notice to

the Company and the Trustee, the holders of a majority in aggregate principal

amount of the Debt Securities at the time outstanding may at any time remove

the Trustee and nominate a successor Trustee, which shall be deemed appointed

as successor Trustee unless within ten Business Days after such nomination the

Company objects thereto, in which case or in the case of a failure by such

holders to nominate a successor Trustee, the Trustee so removed or any

Securityholder, upon the terms and conditions and otherwise as in

subsection (a) of this Section 6.09 provided, may petition any court

of competent jurisdiction for an appointment of a successor.




 




(d)           Any resignation or removal of

the Trustee and appointment of a successor Trustee pursuant to any of the

provisions of this Section 6.09 shall become effective upon acceptance of

appointment by the successor Trustee as provided in Section 6.10.




 




SECTION 6.10               Acceptance by Successor

Trustee.




 




Any successor Trustee appointed as provided in

Section 6.09 shall execute, acknowledge and deliver to the Company and to

its predecessor Trustee an instrument accepting such appointment hereunder, and

thereupon the resignation or removal of the retiring Trustee




 




35





























 




shall become effective

and such successor Trustee, without any further act, deed or conveyance, shall

become vested with all the rights, powers, duties and obligations with respect

to the Debt Securities of its predecessor hereunder, with like effect as if

originally named as Trustee herein; but, nevertheless, on the written request of

the Company or of the successor Trustee, the Trustee ceasing to act shall, upon

payment of the amounts then due it pursuant to the provisions of

Section 6.06, execute and deliver an instrument transferring to such

successor Trustee all the rights and powers of the Trustee so ceasing to act

and shall duly assign, transfer and deliver to such successor Trustee all

property and money held by such retiring Trustee hereunder.  Upon request of any such successor Trustee,

the Company shall execute any and all instruments in writing for more fully and

certainly vesting in and confirming to such successor Trustee all such rights

and powers.  Any Trustee ceasing to act

shall, nevertheless, retain a lien upon all property or funds held or collected

by such Trustee to secure any amounts then due it pursuant to the provisions of

Section 6.06.




 




If a successor Trustee is appointed, the Company, the

retiring Trustee and the  successor

Trustee shall execute and deliver an indenture supplemental hereto which shall

contain such provisions as shall be deemed necessary or desirable to confirm

that all the rights, powers, trusts and duties of the retiring Trustee with

respect to the Debt Securities as to which the predecessor Trustee is not

retiring shall continue to be vested in the predecessor Trustee, and shall add

to or change any of the provisions of this Indenture as shall be necessary to

provide for or facilitate the administration of the Trust hereunder by more

than one Trustee, it being understood that nothing herein or in such

supplemental indenture shall constitute such Trustees co-trustees of the same

trust and that each such Trustee shall be Trustee of a trust or trusts

hereunder separate and apart from any trust or trusts hereunder administered by

any other such Trustee.




 




No successor Trustee shall accept appointment as

provided in this Section 6.10 unless at the time of such acceptance such

successor Trustee shall be eligible under the provisions of Section 6.08.




 




In no event shall a retiring Trustee be liable for the

acts or omissions of any successor Trustee hereunder.




 




Upon acceptance of appointment by a successor Trustee

as provided in this Section 6.10, the Company shall mail notice of the

succession of such Trustee hereunder to the holders of Debt Securities at their

addresses as they shall appear on the Debt Security Register.  If the Company fails to mail such notice

within ten Business Days after the acceptance of appointment by the successor

Trustee, the successor Trustee shall cause such notice to be mailed at the

expense of the Company.




 




SECTION 6.11               Succession by Merger, etc.




 




Any corporation into which the Trustee may be merged

or converted or with which it may be consolidated, or any corporation resulting

from any merger, conversion or consolidation to which the Trustee shall be a

party, or any corporation succeeding to all or substantially all of the

corporate trust business of the Trustee, shall be the successor of the Trustee

hereunder without the execution or filing of any paper or any further act on the

part of




 




36





























 




any of the parties hereto; provided, that such

corporation shall be otherwise eligible and qualified under this Article.




 




In case at the time such successor to the Trustee

shall succeed to the trusts created by this Indenture any of the Debt

Securities shall have been authenticated but not delivered, any such successor

to the Trustee may adopt the certificate of authentication of any predecessor

Trustee, and deliver such Debt Securities so authenticated; and in case at that

time any of the Debt Securities shall not have been authenticated, any

successor to the Trustee may authenticate such Debt Securities either in the

name of any predecessor hereunder or in the name of the successor Trustee; and

in all such cases such certificates shall have the full force which it is

anywhere in the Debt Securities or in this Indenture provided that the

certificate of the Trustee shall have; provided, however, that

the right to adopt the certificate of authentication of any predecessor Trustee

or authenticate Debt Securities in the name of any predecessor Trustee shall

apply only to its successor or successors by merger, conversion or

consolidation.




 




SECTION 6.12               Authenticating Agents.




 




There may be one or more Authenticating Agents

appointed by the Trustee upon the request of the Company with power to act on

its behalf and subject to its direction in the authentication and delivery of

Debt Securities issued upon exchange or registration of transfer thereof as fully

to all intents and purposes as though any such Authenticating Agent had been

expressly authorized to authenticate and deliver Debt Securities; provided,

that the Trustee shall have no liability to the Company for any acts or

omissions of the Authenticating Agent with respect to the authentication and

delivery of Debt Securities.  Any such

Authenticating Agent shall at all times be a corporation organized and doing

business under the laws of the United States or of any state or territory

thereof or of the District of Columbia authorized under such laws to act as

Authenticating Agent, having a combined capital and surplus of at least

$50,000,000 and being subject to supervision or examination by federal, state,

territorial or District of Columbia authority. 

If such corporation publishes reports of condition at least annually

pursuant to law or the requirements of such authority, then for the purposes of

this Section 6.12 the combined capital and surplus of such corporation

shall be deemed to be its combined capital and surplus as set forth in its most

recent report of condition so published. 

If at any time an Authenticating Agent shall cease to be eligible in

accordance with the provisions of this Section, it shall resign immediately in

the manner and with the effect herein specified in this Section.




 




Any corporation into which any Authenticating Agent

may be merged or converted or with which it may be consolidated, or any

corporation resulting from any merger, consolidation or conversion to which any

Authenticating Agent shall be a party, or any corporation succeeding to all or

substantially all of the corporate trust business of any Authenticating Agent,

shall be the successor of such Authenticating Agent hereunder, if such

successor corporation is otherwise eligible under this Section 6.12

without the execution or filing of any paper or any further act on the part of

the parties hereto or such Authenticating Agent.




 




Any Authenticating Agent may at any time resign by

giving written notice of resignation to the Trustee and to the Company.  The Trustee may at any time terminate the

agency of any Authenticating Agent with respect to the Debt Securities by

giving written notice




 




37





























 




of termination to such Authenticating Agent and to the Company.  Upon receiving such a notice of resignation

or upon such a termination, or in case at any time any Authenticating Agent

shall cease to be eligible under this Section 6.12, the Trustee may, and

upon the request of the Company shall, promptly appoint a successor

Authenticating Agent eligible under this Section 6.12, shall give written

notice of such appointment to the Company and shall mail notice of such

appointment to all holders of Debt Securities as the names and addresses of

such holders appear on the Debt Security Register.  Any successor Authenticating Agent upon acceptance of its

appointment hereunder shall become vested with all rights, powers, duties and

responsibilities with respect to the Debt Securities of its predecessor

hereunder, with like effect as if originally named as Authenticating Agent

herein.




 




The Company agrees to pay to any Authenticating Agent

from time to time reasonable compensation for its services.  Any Authenticating Agent shall have no

responsibility or liability for any action taken by it as such in accordance

with the directions of the Trustee.




 




ARTICLE VII


CONCERNING THE SECURITYHOLDERS




 




SECTION 7.01               Action by Securityholders.




 




Whenever in this Indenture it is provided that the

holders of a specified percentage in aggregate principal amount of the Debt

Securities may take any action (including the making of any demand or request,

the giving of any notice, consent or waiver or the taking of any other action),

the fact that at the time of taking any such action the holders of such

specified percentage have joined therein may be evidenced (a) by any

instrument or any number of instruments of similar tenor executed by such

Securityholders in person or by agent or proxy appointed in writing, or

(b) by the record of such holders of Debt Securities voting in favor

thereof at any meeting of such Securityholders duly called and held in

accordance with the provisions of Article VIII, or (c) by a

combination of such instrument or instruments and any such record of such a

meeting of such Securityholders or (d) by any other method the Trustee

deems satisfactory.




 




If the Company shall solicit from the Securityholders

any request, demand, authorization, direction, notice, consent, waiver or other

action or revocation of the same, the Company may, at its option, as evidenced

by an Officers’ Certificate, fix in advance a record date for such Debt

Securities for the determination of Securityholders entitled to give such

request, demand, authorization, direction, notice, consent, waiver or other

action or revocation of the same, but the Company shall have no obligation to

do so.  If such a record date is fixed,

such request, demand, authorization, direction, notice, consent, waiver or

other action or revocation of the same may be given before or after the record

date, but only the Securityholders of record at the close of business on the

record date shall be deemed to be Securityholders for the purposes of

determining whether Securityholders of the requisite proportion of outstanding

Debt Securities have authorized or agreed or consented to such request, demand,

authorization, direction, notice, consent, waiver or other action or revocation

of the same, and for that purpose the outstanding Debt Securities shall be computed

as of the record date; provided, however, that no such

authorization, agreement or consent by such Securityholders on the record date

shall be deemed




 




38





























 




effective unless it shall become effective pursuant to the provisions

of this Indenture not later than six months after the record date.




 




SECTION 7.02               Proof of Execution by

Securityholders.




 




Subject to the provisions of Sections 6.01, 6.02

and 8.05, proof of the execution of any instrument by a Securityholder or such

Securityholder’s agent or proxy shall be sufficient if made in accordance with

such reasonable rules and regulations as may be prescribed by the Trustee or in

such manner as shall be satisfactory to the Trustee.  The ownership of Debt Securities shall be proved by the Debt

Security Register or by a certificate of the Debt Security registrar.  The Trustee may require such additional

proof of any matter referred to in this Section as it shall deem necessary.




 




The record of any Securityholders’ meeting shall be

proved in the manner provided in Section 8.06.




 




SECTION 7.03               Who Are Deemed Absolute Owners.




 




Prior to due presentment for registration of transfer

of any Debt Security, the Company, the Trustee, any Authenticating Agent, any

paying agent, any transfer agent and any Debt Security registrar may deem the

Person in whose name such Debt Security shall be registered upon the Debt

Security Register to be, and may treat such Person as, the absolute owner of

such Debt Security (whether or not such Debt Security shall be overdue) for the

purpose of receiving payment of or on account of the principal of, premium, if

any, and interest on such Debt Security and for all other purposes; and neither

the Company nor the Trustee nor any Authenticating Agent nor any paying agent

nor any transfer agent nor any Debt Security registrar shall be affected by any

notice to the contrary.  All such

payments so made to any holder for the time being or upon such holder’s order shall

be valid, and, to the extent of the sum or sums so paid, effectual to satisfy

and discharge the liability for moneys payable upon any such Debt Security.




 




SECTION 7.04               Debt Securities Owned by

Company Deemed Not Outstanding.




 




In determining whether the holders of the requisite

aggregate principal amount of Debt Securities have concurred in any direction,

consent or waiver under this Indenture, Debt Securities which are owned by the

Company or any other obligor on the Debt Securities or by any Person directly

or indirectly controlling or controlled by or under direct or indirect common

control with the Company or any other obligor on the Debt Securities shall be

disregarded and deemed not to be outstanding for the purpose of any such

determination; provided, that for the purposes of determining

whether the Trustee shall be protected in relying on any such direction,

consent or waiver, only Debt Securities which a Responsible Officer of the

Trustee actually knows are so owned shall be so disregarded.  Debt Securities so owned which have been

pledged in good faith may be regarded as outstanding for the purposes of this

Section 7.04 if the pledgee shall establish to the satisfaction of the

Trustee the pledgee’s right to vote such Debt Securities and that the pledgee

is not the Company or any such other obligor or Person directly or indirectly

controlling or controlled by or under direct or indirect common control with

the Company or any




 




39





























 




such other obligor.  In the case

of a dispute as to such right, any decision by the Trustee taken upon the

advice of counsel shall be full protection to the Trustee.




 




SECTION 7.05               Revocation of Consents; Future

Holders Bound.




 




At any time prior to (but not after) the evidencing to

the Trustee, as provided in Section 7.01, of the taking of any action by

the holders of the percentage in aggregate principal amount of the Debt

Securities specified in this Indenture in connection with such action, any

holder (in cases where no record date has been set pursuant to Section 7.01)

or any holder as of an applicable record date (in cases where a record date has

been set pursuant to Section 7.01) of a Debt Security (or any Debt

Security issued in whole or in part in exchange or substitution therefor) the

serial number of which is shown by the evidence to be included in the Debt

Securities the holders of which have consented to such action may, by filing

written notice with the Trustee at the Principal Office of the Trustee and upon

proof of holding as provided in Section 7.02, revoke such action so far as

concerns such Debt Security (or so far as concerns the principal amount

represented by any exchanged or substituted Debt Security).  Except as aforesaid any such action taken by

the holder of any Debt Security shall be conclusive and binding upon such

holder and upon all future holders and owners of such Debt Security, and of any

Debt Security issued in exchange or substitution therefor or on registration of

transfer thereof, irrespective of whether or not any notation in regard thereto

is made upon such Debt Security or any Debt Security issued in exchange or

substitution therefor.




 




ARTICLE VIII


SECURITYHOLDERS’ MEETINGS




 




SECTION 8.01               Purposes of Meetings.




 




A meeting of Securityholders may be called at any time

and from time to time pursuant to the provisions of this Article VIII for

any of the following purposes:




 




(a)           to give any notice to the

Company or to the Trustee, or to give any directions to the Trustee, or to

consent to the waiving of any default hereunder and its consequences, or to

take any other action authorized to be taken by Securityholders pursuant to any

of the provisions of Article V;




 




(b)           to remove the Trustee and

nominate a successor trustee pursuant to the provisions of Article VI;




 




(c)           to consent to the execution of

an indenture or indentures supplemental hereto pursuant to the provisions of

Section 9.02; or




 




(d)           to take any other action

authorized to be taken by or on behalf of the holders of any specified

aggregate principal amount of such Debt Securities under any other provision of

this Indenture or under applicable law.




 




40





























 




SECTION 8.02               Call of Meetings by Trustee.




 




The Trustee may at any time call a meeting of

Securityholders to take any action specified in Section 8.01, to be held

at such time and at such place in New York or Wilmington, Delaware, as the

Trustee shall determine.  Notice of

every meeting of the Securityholders, setting forth the time and the place of

such meeting and in general terms the action proposed to be taken at such

meeting, shall be mailed to holders of Debt Securities affected at their

addresses as they shall appear on the Debt Securities Register.  Such notice shall be mailed not less than 20

nor more than 180 days prior to the date fixed for the meeting.




 




SECTION 8.03               Call of Meetings by Company or

Securityholders.




 




In case at any time the Company pursuant to a Board

Resolution, or the holders of at least 10% in aggregate principal amount of the

Debt Securities, as the case may be, then outstanding, shall have requested the

Trustee to call a meeting of Securityholders, by written request setting forth

in reasonable detail the action proposed to be taken at the meeting, and the

Trustee shall not have mailed the notice of such meeting within 20 days

after receipt of such request, then the Company or such Securityholders may

determine the time and the place in Sioux Falls, South Dakota for such meeting

and may call such meeting to take any action authorized in Section 8.01,

by mailing notice thereof as provided in Section 8.02.




 




SECTION 8.04               Qualifications for Voting.




 




To be entitled to vote at any meeting of

Securityholders a Person shall be (a) a holder of one or more Debt

Securities with respect to which the meeting is being held or (b) a Person

appointed by an instrument in writing as proxy by a holder of one or more such

Debt Securities.  The only Persons who

shall be entitled to be present or to speak at any meeting of Securityholders

shall be the Persons entitled to vote at such meeting and their counsel and any

representatives of the Trustee and its counsel and any representatives of the

Company and its counsel.




 




SECTION 8.05               Regulations.




 




Notwithstanding any other provisions of this

Indenture, the Trustee may make such reasonable regulations as it may deem

advisable for any meeting of Securityholders, in regard to proof of the holding

of Debt Securities and of the appointment of proxies, and in regard to the

appointment and duties of inspectors of votes, the submission and examination

of proxies, certificates and other evidence of the right to vote, and such

other matters concerning the conduct of the meeting as it shall deem

appropriate.




 




The Trustee shall, by an instrument in writing,

appoint a temporary chairman of the meeting, unless the meeting shall have been

called by the Company or by Securityholders as provided in Section 8.03,

in which case the Company or the Securityholders calling the meeting, as the

case may be, shall in like manner appoint a temporary chairman. A permanent

chairman and a permanent secretary of the meeting shall be elected by majority

vote at the meeting.




 




Subject to the provisions of Section 7.04, at any

meeting each holder of Debt Securities with respect to which such meeting is

being held or proxy therefor shall be entitled to




 




41





























 




one vote for each $1,000 principal amount of Debt Securities held or

represented by such holder; provided, however, that no vote shall

be cast or counted at any meeting in respect of any Debt Security challenged as

not outstanding and ruled by the chairman of the meeting to be not

outstanding.  The chairman of the

meeting shall have no right to vote other than by virtue of Debt Securities held

by such chairman or instruments in writing as aforesaid duly designating such

chairman as the Person to vote on behalf of other Securityholders.  Any meeting of Securityholders duly called

pursuant to the provisions of Section 8.02 or 8.03 may be adjourned from

time to time by a majority of those present, whether or not constituting a

quorum, and the meeting may be held as so adjourned without further notice.




 




SECTION 8.06               Voting.




 




The vote upon any resolution submitted to any meeting

of holders of Debt Securities with respect to which such meeting is being held

shall be by written ballots on which shall be subscribed the signatures of such

holders or of their representatives by proxy and the serial number or numbers

of the Debt Securities held or represented by them.  The permanent chairman of the meeting shall appoint two

inspectors of votes who shall count all votes cast at the meeting for or

against any resolution and who shall make and file with the secretary of the

meeting their verified written reports in triplicate of all votes cast at the

meeting. A record in duplicate of the proceedings of each meeting of

Securityholders shall be prepared by the secretary of the meeting and there

shall be attached to said record the original reports of the inspectors of

votes on any vote by ballot taken thereat and affidavits by one or more Persons

having knowledge of the facts setting forth a copy of the notice of the meeting

and showing that said notice was mailed as provided in Section 8.02.  The record shall show the serial numbers of

the Debt Securities voting in favor of or against any resolution. The record

shall be signed and verified by the affidavits of the permanent chairman and

secretary of the meeting and one of the duplicates shall be delivered to the

Company and the other to the Trustee to be preserved by the Trustee, the latter

to have attached thereto the ballots voted at the meeting.




 




Any record so signed and verified shall be conclusive

evidence of the matters therein stated.




 




SECTION 8.07               Quorum; Actions.




 




The Persons entitled to vote a majority in outstanding

principal amount of the Debt Securities shall constitute a quorum for a meeting

of Securityholders; provided, however, that if any action is to

be taken at such meeting with respect to a consent, waiver, request, demand,

notice, authorization, direction or other action which may be given by the

holders of not less than a specified percentage in outstanding principal amount

of the Debt Securities, the Persons holding or representing such specified

percentage in outstanding principal amount of the Debt Securities will

constitute a quorum.  In the absence of

a quorum within 30 minutes of the time appointed for any such meeting, the

meeting shall, if convened at the request of Securityholders, be dissolved.  In any other case the meeting may be

adjourned for a period of not less than 10 days as determined by the

permanent chairman of the meeting prior to the adjournment of such

meeting.  In the absence of a quorum at

any such adjourned meeting, such adjourned meeting may be further adjourned for

a period of not less than 10 days as determined by the permanent chairman

of the meeting prior to the adjournment of such adjourned meeting.




 




42





























 




Notice of the reconvening of any adjourned meeting shall be given as

provided in Section 8.02, except that such notice need be given only once

not less than five days prior to the date on which the meeting is

scheduled to be reconvened.  Notice of

the reconvening of an adjourned meeting shall state expressly the percentage,

as provided above, of the outstanding principal amount of the Debt Securities

which shall constitute a quorum.




 




Except as limited by the proviso in the first

paragraph of Section 9.02, any resolution presented to a meeting or

adjourned meeting duly reconvened at which a quorum is present as aforesaid may

be adopted by the affirmative vote of the holders of not less than a majority

in outstanding principal amount of the Debt Securities; provided, however,

that, except as limited by the proviso in the first paragraph of

Section 9.02, any resolution with respect to any consent, waiver, request,

demand, notice, authorization, direction or other action that this Indenture

expressly provides may be given by the holders of not less than a specified percentage

in outstanding principal amount of the Debt Securities may be adopted at a

meeting or an adjourned meeting duly reconvened and at which a quorum is

present as aforesaid only by the affirmative vote of the holders of not less

than such specified percentage in outstanding principal amount of the Debt

Securities.




 




Any resolution passed or decision taken at any meeting

of holders of Debt Securities duly held in accordance with this Section shall

be binding on all the Securityholders, whether or not present or represented at

the meeting.




 




ARTICLE IX


SUPPLEMENTAL INDENTURES




 




SECTION 9.01               Supplemental Indentures

without Consent of Securityholders.




 




The Company, when authorized by a Board Resolution,

and the Trustee may from time to time and at any time enter into an indenture

or indentures supplemental hereto, without the consent of the Securityholders,

for one or more of the following purposes:




 




(a)           to evidence the succession of

another corporation to the Company, or successive successions, and the assumption

by the successor corporation of the covenants, agreements and obligations of

the Company, pursuant to Article XI hereof;




 




(b)           to add to the covenants of the

Company such further covenants, restrictions or conditions for the protection

of the holders of Debt Securities as the Board of Directors shall consider to

be for the protection of the holders of such Debt Securities, and to make the

occurrence, or the occurrence and continuance, of a default in any of such

additional covenants, restrictions or conditions a default or an Event of

Default permitting the enforcement of all or any of the several remedies

provided in this Indenture as herein set forth; provided, however,

that in respect of any such additional covenant, restriction or condition such

supplemental indenture may provide for a particular period of grace after

default (which period may be shorter or longer than that allowed in the case of

other defaults) or may provide for an immediate enforcement upon such default

or may limit the remedies available to the Trustee upon such default;




 




43





























 




(c)           to cure any ambiguity or to

correct or supplement any provision contained herein or in any supplemental

indenture which may be defective or inconsistent with any other provision

contained herein or in any supplemental indenture, or to make such other

provisions in regard to matters or questions arising under this Indenture; provided,

that any such action shall not adversely affect the interests of the

holders of the Debt Securities;




 




(d)           to add to, delete from, or

revise the terms of Debt Securities, including, without limitation, any terms

relating to the issuance, exchange, registration or transfer of Debt

Securities, including to provide for transfer procedures and restrictions

substantially similar to those applicable to the Capital Securities, as

required by Section 2.05 (for purposes of assuring that no registration of

Debt Securities is required under the Securities Act of 1933, as amended); provided,

that any such action shall not adversely affect the interests of the

holders of the Debt Securities then outstanding (it being understood, for

purposes of this proviso, that transfer restrictions on Debt Securities

substantially similar to those applicable to Capital Securities shall not be

deemed to adversely affect the holders of the Debt Securities);




 




(e)           to evidence and provide for

the acceptance of appointment hereunder by a successor Trustee with respect to

the Debt Securities and to add to or change any of the provisions of this

Indenture as shall be necessary to provide for or facilitate the administration

of the trusts hereunder by more than one Trustee, pursuant to the requirements

of Section 6.10;




 




(f)            to make any change (other

than as elsewhere provided in this paragraph) that does not adversely affect

the rights of any Securityholder in any material respect; or




 




(g)           to provide for the issuance of

and establish the form and terms and conditions of the Debt Securities, to

establish the form of any certifications required to be furnished pursuant to

the terms of this Indenture or the Debt Securities, or to add to the rights of

the holders of Debt Securities.




 




The Trustee is hereby authorized to join with the

Company in the execution of any such supplemental indenture, to make any

further appropriate agreements and stipulations which may be therein contained

and to accept the conveyance, transfer and assignment of any property

thereunder, but the Trustee shall not be obligated to, but may in its discretion,

enter into any such supplemental indenture which affects the Trustee’s own

rights, duties or immunities under this Indenture or otherwise.




 




Any supplemental indenture authorized by the

provisions of this Section 9.01 may be executed by the Company and the

Trustee without the consent of the holders of any of the Debt Securities at the

time outstanding, notwithstanding any of the provisions of Section 9.02.




 




SECTION 9.02               Supplemental Indentures with

Consent of Securityholders.




 




With the consent (evidenced as provided in

Section 7.01) of the holders of not less than a majority in aggregate

principal amount of the Debt Securities at the time outstanding affected by

such supplemental indenture (voting as a class), the Company, when authorized

by a Board Resolution, and the Trustee may from time to time and at any time

enter into an indenture or indentures supplemental hereto (which shall conform

to the provisions of the Trust Indenture




 




44





























 




Act, then in effect, applicable to indentures qualified thereunder) 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 Debt

Securities; provided, however, that no such supplemental indenture shall

without such consent of the holders of each Debt Security then outstanding and

affected thereby (i) extend the fixed maturity of any Debt Security, or

reduce the principal amount thereof or any premium thereon, or reduce the rate

or extend the time of payment of interest thereon, or reduce any amount payable

on redemption thereof or make the principal thereof or any interest or premium

thereon payable in any coin or currency other than that provided in the Debt

Securities, or impair or affect the right of any Securityholder to institute

suit for payment thereof or impair the right of repayment, if any, at the

option of the holder, or (ii) reduce the aforesaid percentage of Debt

Securities the holders of which are required to consent to any such

supplemental indenture; and provided, further, that if the Debt Securities are

held by the Trust or a trustee of such trust, such supplemental indenture shall

not be effective until the holders of a majority in liquidation preference of

the Trust Securities shall have consented to such supplemental indenture; provided,

further, that if the consent of the Securityholder of each outstanding

Debt Security is required, such supplemental indenture shall not be effective

until each holder of the Trust Securities shall have consented to such

supplemental indenture.




 




Upon the request of the Company accompanied by a Board

Resolution authorizing the execution of any such supplemental indenture, and

upon the filing with the Trustee of evidence of the consent of Securityholders

as aforesaid, the Trustee shall join with the Company in the execution of such

supplemental indenture unless such supplemental indenture affects the Trustee’s

own rights, duties or immunities under this Indenture or otherwise, in which

case the Trustee may in its discretion, but shall not be obligated to, enter

into such supplemental indenture.




 




Promptly after the execution by the Company and the

Trustee of any supplemental indenture pursuant to the provisions of this

Section, the Trustee shall transmit by mail, first class postage prepaid, a

notice, prepared by the Company, setting forth in general terms the substance

of such supplemental indenture, to the Securityholders as their names and

addresses appear upon the Debt Security Register.  Any failure of the Trustee to mail such notice, or any defect

therein, shall not, however, in any way impair or affect the validity of any

such supplemental indenture.




 




It shall not be necessary for the consent of the

Securityholders under this Section 9.02 to approve the particular form of

any proposed supplemental indenture, but it shall be sufficient if such consent

shall approve the substance thereof.




 




SECTION 9.03               Effect of Supplemental

Indentures.




 




Upon the execution of any supplemental indenture

pursuant to the provisions of this Article IX, this Indenture shall be and

be deemed to be modified and amended in accordance therewith and the respective

rights, limitations of rights, obligations, duties and immunities under this

Indenture of the Trustee, the Company and the holders of Debt Securities shall

thereafter be determined, exercised and enforced hereunder subject in all

respects to such modifications and




 




45





























 




amendments and all the terms and conditions of any such supplemental

indenture shall be and be deemed to be part of the terms and conditions of this

Indenture for any and all purposes.




 




SECTION 9.04               Notation on Debt Securities.




 




Debt Securities authenticated and delivered after the

execution of any supplemental indenture pursuant to the provisions of this

Article IX may bear a notation as to any matter provided for in such

supplemental indenture.  If the Company

or the Trustee shall so determine, new Debt Securities so modified as to

conform, in the opinion of the Board of Directors of the Company, to any

modification of this Indenture contained in any such supplemental indenture may

be prepared and executed by the Company, authenticated by the Trustee or the

Authenticating Agent and delivered in exchange for the Debt Securities then

outstanding.




 




SECTION 9.05               Evidence of Compliance of

Supplemental Indenture to be Furnished to Trustee.




 




The Trustee, subject to the provisions of Sections 6.01

and 6.02, shall, in addition to the documents required by Section 14.06,

receive an Officers’ Certificate and an Opinion of Counsel as conclusive

evidence that any supplemental indenture executed pursuant hereto complies with

the requirements of this Article IX. 

The Trustee shall receive an Opinion of Counsel as conclusive evidence

that any supplemental indenture executed pursuant to this Article IX is

authorized or permitted by, and conforms to, the terms of this Article IX

and that it is proper for the Trustee under the provisions of this

Article IX to join in the execution thereof.




 




ARTICLE X


REDEMPTION OF SECURITIES




 




SECTION 10.01             Optional Redemption.




 




At any time the Company

shall have the right, subject to the receipt by the Company of prior approval

from the OTS, if then required under applicable capital guidelines or policies

of the OTS, to redeem the Debt Securities, in whole or in part, on any January

7th, April 7th, July 7th or October 7th

on or after July 7, 2007 (the “Redemption Date”), at the Redemption Price.




 




SECTION 10.02             Special Event Redemption.




 




If a Special Event shall occur and be continuing, the

Company shall have the right, subject to the receipt by the Company of prior

approval from the OTS if then required under applicable capital guidelines or

policies of the OTS, to redeem the Debt Securities, in whole but not in part,

at any time within 90 days following the occurrence of such Special Event

(the “Special Redemption Date”), at the Special Redemption Price.




 




SECTION 10.03             Notice of Redemption; Selection

of Debt Securities.




 




In case the Company shall desire to exercise the right

to redeem all, or, as the case may be, any part of the Debt Securities, it

shall fix a date for redemption and shall mail a notice 




 




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of such redemption at

least 30 and not more than 60 days prior to the date fixed for redemption

to the holders of Debt Securities so to be redeemed as a whole or in part at

their last addresses as the same appear on the Debt Security Register.  Such mailing shall be by first class

mail.  The notice if mailed in the

manner herein provided shall be conclusively presumed to have been duly given,

whether or not the holder receives such notice.  In any case, failure to give such notice by mail or any defect in

the notice to the holder of any Debt Security designated for redemption as a

whole or in part shall not affect the validity of the proceedings for the

redemption of any other Debt Security.




 




Each such notice of redemption shall specify the CUSIP

number, if any, of the Debt Securities to be redeemed, the date fixed for

redemption, the redemption price at which Debt Securities are to be redeemed,

the place or places of payment, that payment will be made upon presentation and

surrender of such Debt Securities, that interest accrued to the date fixed for

redemption will be paid as specified in said notice, and that on and after said

date interest thereon or on the portions thereof to be redeemed will cease to

accrue. If less than all the Debt Securities are to be redeemed the notice of

redemption shall specify the numbers of the Debt Securities to be

redeemed.  In case the Debt Securities

are to be redeemed in part only, the notice of redemption shall state the

portion of the principal amount thereof to be redeemed and shall state that on

and after the date fixed for redemption, upon surrender of such Debt Security,

a new Debt Security or Debt Securities in principal amount equal to the

unredeemed portion thereof will be issued.




 




Prior to 10:00 a.m. New York City time on the

Redemption Date or the Special Redemption Date specified in the notice of

redemption given as provided in this Section, the Company will deposit with the

Trustee or with one or more paying agents an amount of money sufficient to

redeem on the redemption date all the Debt Securities so called for redemption

at the appropriate redemption price, together with accrued interest to the date

fixed for redemption.




 




The Company will give the Trustee notice not less than

45 nor more than 60 days prior to the redemption date as to the redemption

price at which the Debt Securities are to be redeemed and the aggregate

principal amount of Debt Securities to be redeemed and the Trustee shall

select, in such manner as in its sole discretion it shall deem appropriate and

fair, the Debt Securities or portions thereof (in integral multiples of $1,000)

to be redeemed.




 




SECTION 10.04             Payment of Debt Securities

Called for Redemption.




 




If notice of redemption has been given as provided in

Section 10.03, the Debt Securities or portions of Debt Securities with

respect to which such notice has been given shall become due and payable on the

Redemption Date or the Special Redemption Date (as the case may be) and at the

place or places stated in such notice at the applicable redemption price,

together with interest accrued to the date fixed for redemption, and on and

after said Redemption Date or the Special Redemption Date (unless the Company

shall default in the payment of such Debt Securities at the redemption price,

together with interest accrued to said date) interest on the Debt Securities or

portions of Debt Securities so called for redemption shall cease to

accrue.  On presentation and surrender

of such Debt Securities at a place of payment specified in said notice, such

Debt Securities or the specified portions thereof shall be paid and redeemed by

the 




 




47





























 




Company at the applicable

redemption price, together with interest accrued thereon to the Redemption Date

or the Special Redemption Date (as the case may be).




 




Upon presentation of any Debt Security redeemed in

part only, the Company shall execute and the Trustee shall authenticate and

make available for delivery to the holder thereof, at the expense of the

Company, a new Debt Security or Debt Securities of authorized denominations in

principal amount equal to the unredeemed portion of the Debt Security so

presented.




 




ARTICLE XI


CONSOLIDATION, MERGER, SALE, CONVEYANCE AND LEASE




 




SECTION 11.01             Company May Consolidate, etc.,

on Certain Terms.




 




Nothing contained in this Indenture or in the Debt

Securities shall prevent any consolidation or merger of the Company with or

into any other corporation or corporations (whether or not affiliated with the

Company) or successive consolidations or mergers in which the Company or its

successor or successors shall be a party or parties, or shall prevent any sale,

conveyance, transfer or other disposition of the property or capital stock of

the Company or its successor or successors as an entirety, or substantially as

an entirety, to any other corporation (whether or not affiliated with the

Company, or its successor or successors) authorized to acquire and operate the

same; provided, however, that the Company hereby covenants and

agrees that, upon any such consolidation, merger (where the Company is not the

surviving corporation), sale, conveyance, transfer or other disposition, the

due and punctual payment of the principal of (and premium, if any) and interest

on all of the Debt Securities in accordance with their terms, according to

their tenor, and the due and punctual performance and observance of all the

covenants and conditions of this Indenture to be kept or performed by the

Company, shall be expressly assumed by supplemental indenture reasonably

satisfactory in form to the Trustee executed and delivered to the Trustee by

the entity formed by such consolidation, or into which the Company shall have

been merged, or by the entity which shall have acquired such property or

capital stock.




 




SECTION 11.02             Successor Entity to be

Substituted.




 




In case of any such consolidation, merger, sale,

conveyance, transfer or other disposition and upon the assumption by the

successor entity, by supplemental indenture, executed and delivered to the

Trustee and reasonably satisfactory in form to the Trustee, of the due and

punctual payment of the principal of and premium, if any, and interest on all

of the Debt Securities and the due and punctual performance and observance of

all of the covenants and conditions of this Indenture to be performed or

observed by the Company, such successor entity shall succeed to and be

substituted for the Company, with the same effect as if it had been named

herein as the Company, and thereupon the predecessor entity shall be relieved

of any further liability or obligation hereunder or upon the Debt

Securities.  Such successor entity

thereupon may cause to be signed, and may issue either in its own name or in

the name of the Company, any or all of the Debt Securities issuable hereunder

which theretofore shall not have been signed by the Company and delivered to

the Trustee or the Authenticating Agent; and, upon the order of such successor

entity instead of the Company and subject to all the terms, conditions and 




 




48





























 




limitations in this

Indenture prescribed, the Trustee or the Authenticating Agent shall

authenticate and deliver any Debt Securities which previously shall have been

signed and delivered by the officers of the Company, to the Trustee or the

Authenticating Agent for authentication, and any Debt Securities which such

successor entity thereafter shall cause to be signed and delivered to the

Trustee or the Authenticating Agent for that purpose.  All the Debt Securities so issued shall in all respects have the

same legal rank and benefit under this Indenture as the Debt Securities

theretofore or thereafter issued in accordance with the terms of this Indenture

as though all of such Debt Securities had been issued at the date of the

execution hereof.




 




SECTION 11.03             Opinion of Counsel to be Given

to Trustee.




 




The Trustee, subject to the provisions of

Sections 6.01 and 6.02, shall receive, in addition to the Opinion of

Counsel required by Section 9.05, an Opinion of Counsel as conclusive

evidence that any consolidation, merger, sale, conveyance, transfer or other

disposition, and any assumption, permitted or required by the terms of this

Article XI complies with the provisions of this Article XI.




 




ARTICLE XII


SATISFACTION AND DISCHARGE OF INDENTURE




 




SECTION 12.01             Discharge of Indenture.




 




When (a) the Company shall deliver to the Trustee

for cancellation all Debt Securities theretofore authenticated (other than any

Debt Securities which shall have been destroyed, lost or stolen and which shall

have been replaced or paid as provided in Section 2.06) and not

theretofore canceled, or (b) all the Debt Securities not theretofore

canceled or delivered to the Trustee for cancellation shall have become due and

payable, or are by their terms to become due and payable within one year or are

to be called for redemption within one year under arrangements satisfactory to

the Trustee for the giving of notice of redemption, and the Company shall

deposit with the Trustee, in trust, funds, which shall be immediately due and

payable, sufficient to pay at maturity or upon redemption all of the Debt

Securities (other than any Debt Securities which shall have been destroyed,

lost or stolen and which shall have been replaced or paid as provided in

Section 2.06) not theretofore canceled or delivered to the Trustee for

cancellation, including principal and premium, if any, and interest due or to

become due to such date of maturity or redemption date, as the case may be, but

excluding, however, the amount of any moneys for the payment of principal of,

and premium, if any, or interest on the Debt Securities (1) theretofore

repaid to the Company in accordance with the provisions of Section 12.04,

or (2) paid to any state or to the District of Columbia pursuant to its

unclaimed property or similar laws, and if in the case of either

clause (a) or clause (b) the Company shall also pay or cause to be

paid all other sums payable hereunder by the Company, then this Indenture shall

cease to be of further effect except for the provisions of Sections 2.05,

2.06, 3.01, 3.02, 3.04, 6.06, 6.09 and 12.04 hereof, which shall survive until

such Debt Securities shall mature or are redeemed, as the case may be, and are

paid.  Thereafter, Sections 6.06,

6.09 and 12.04 shall survive, and the Trustee, on demand of the Company

accompanied by an Officers’ Certificate and an Opinion of Counsel, each stating

that all conditions precedent herein provided for relating to the satisfaction

and discharge of this Indenture have been complied with, and at 




 




49





























 




the cost and expense of

the Company, shall execute proper instruments acknowledging satisfaction of and

discharging this Indenture, the Company, however, hereby agreeing to reimburse

the Trustee for any costs or expenses thereafter reasonably and properly

incurred by the Trustee in connection with this Indenture or the Debt

Securities.




 




SECTION 12.02             Deposited Moneys to be Held in

Trust by Trustee.




 




Subject to the provisions of Section 12.04, all

moneys deposited with the Trustee pursuant to Section 12.01 shall be held

in trust and applied by it to the payment, either directly or through any

paying agent (including the Company if acting as its own paying agent), to the

holders of the particular Debt Securities for the payment of which such moneys

have been deposited with the Trustee, of all sums due and to become due thereon

for principal, and premium, if any, and interest.




 




SECTION 12.03             Paying Agent to Repay Moneys

Held.




 




Upon the satisfaction and discharge of this Indenture,

all moneys then held by any paying agent of the Debt Securities (other than the

Trustee) shall, upon demand of the Company, be repaid to the Company or paid to

the Trustee, and thereupon such paying agent shall be released from all further

liability with respect to such moneys.




 




SECTION 12.04             Return of Unclaimed Moneys.




 




Any moneys deposited with or paid to the Trustee or

any paying agent for payment of the principal of, and premium, if any, or

interest on Debt Securities and not applied but remaining unclaimed by the

holders of Debt Securities for two years after the date upon which the

principal of, and premium, if any, or interest on such Debt Securities, as the

case may be, shall have become due and payable, shall be repaid to the Company

by the Trustee or such paying agent on written demand; and the holder of any of

the Debt Securities shall thereafter look only to the Company for any payment

which such holder may be entitled to collect and all liability of the Trustee

or such paying agent with respect to such moneys shall thereupon cease.




 




ARTICLE XIII


IMMUNITY OF INCORPORATORS, STOCKHOLDERS,


OFFICERS AND DIRECTORS




 




SECTION 13.01             Indenture and Debt Securities

Solely Corporate Obligations.




 




No recourse for the payment of the principal of or

premium, if any, or interest on any Debt Security, or for any claim based

thereon or otherwise in respect thereof, and no recourse under or upon any

obligation, covenant or agreement of the Company in this Indenture or in any

supplemental indenture, or in any such Debt Security, or because of the

creation of any indebtedness represented thereby, shall be had against any

incorporator, stockholder, officer, director, employee or agent, as such, past,

present or future, of the Company or of any predecessor or successor

corporation of the Company, either directly or through the Company or any

successor corporation of the Company, whether by virtue of any constitution,

statute or rule of law, or by the enforcement of any assessment or penalty or

otherwise; it being expressly 




 




50





























 




understood that all such

liability is hereby expressly waived and released as a condition of, and as a

consideration for, the execution of this Indenture and the issue of the Debt

Securities.




 




ARTICLE XIV


MISCELLANEOUS PROVISIONS




 




SECTION 14.01             Successors.




 




All the covenants, stipulations, promises and

agreements of the Company contained in this Indenture shall bind its successors

and assigns whether so expressed or not.




 




SECTION 14.02             Official Acts by Successor

Entity.




 




Any act or proceeding by any provision of this

Indenture authorized or required to be done or performed by any board,

committee or officer of the Company shall and may be done and performed with

like force and effect by the like board, committee, officer or other authorized

Person of any entity that shall at the time be the lawful successor of the

Company.




 




SECTION 14.03             Surrender of Company Powers.




 




The Company by instrument in writing executed by

authority of 2/3 (two-thirds) of its Board of Directors and delivered to the

Trustee may surrender any of the powers reserved to the Company and thereupon

such power so surrendered shall terminate both as to the Company and as to any

permitted successor.




 




SECTION 14.04             Addresses for Notices, etc.




 




Any notice or demand which by any provision of this

Indenture is required or permitted to be given or served by the Trustee or by

the Securityholders on the Company may be given or served in writing by being

deposited postage prepaid by registered or certified mail in a post office

letter box addressed (until another address is filed by the Company with the

Trustee for such purpose) to the Company at 225 South Main Street, Sioux Falls,

South Dakota  57117, Attention: Curtis

L. Hage.  Any notice, direction, request

or demand by any Securityholder or the Company to or upon the Trustee shall be

deemed to have been sufficiently given or made, for all purposes, if given or

made in writing at the office of Wilmington Trust Company at Rodney Square

North, 1100 North Market Street, Wilmington, Delaware 19890, Attention:

Corporate Trust Administration.




 




SECTION 14.05             Governing Law.




 




This Indenture and each Debt Security shall be deemed

to be a contract made under the law of the State of New York, and for all

purposes shall be governed by and construed in accordance with the law of said

State, without regard to conflict of laws principles thereof.




 




SECTION 14.06             Evidence of Compliance with

Conditions Precedent.




 




Upon any application or demand by the Company to the

Trustee to take any action under any of the provisions of this Indenture, the

Company shall furnish to the Trustee an 




 




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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 an Opinion of Counsel stating that, in the opinion of such

counsel, all such conditions precedent have been complied with (except that no

such Opinion of Counsel is required to be furnished to the Trustee in

connection with the authentication and issuance of Debt Securities issued on

the date of this Indenture).




 




Each certificate or opinion provided for in this

Indenture and delivered to the Trustee with respect to compliance with a

condition or covenant provided for in this Indenture (except certificates

delivered pursuant to Section 3.05) 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 14.07             Non-Business Days.




 




In any case where the date of payment of interest on

or principal of the Debt Securities is not a Business Day, the payment of such

interest on or principal of the Debt Securities need not be made on such date

but may be made on the next succeeding Business Day, with the same force and

effect as if made on the date of payment and no interest shall accrue for the

period from and after such date, except if such Business Day is in the next

succeeding calendar year, such payment will be made on the immediately

preceding Business Day.




 




SECTION 14.08             Table of Contents, Headings, etc.




 




The table of contents and the titles 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 14.09             Execution in Counterparts.




 




This Indenture may be executed in any number of

counterparts, each of which shall be an original, but such counterparts shall

together constitute but one and the same instrument.




 




SECTION 14.10             Separability.




 




In case any one or more of the provisions contained in

this Indenture or in the Debt Securities shall for any reason be held to be

invalid, illegal or unenforceable in any respect, such invalidity, illegality

or unenforceability shall not affect any other provisions of this Indenture or

of such Debt Securities, but this Indenture and such Debt Securities shall be

construed as if such invalid or illegal or unenforceable provision had never

been contained herein or therein.




 




52





























 




SECTION 14.11             Assignment.




 




Subject to Article 11, the Company will have the

right at all times to assign any of its rights or obligations under this

Indenture to a direct or indirect wholly owned Subsidiary of the Company, provided,

that, in the event of any such assignment, the Company will remain

liable for all such obligations. Subject to the foregoing, this Indenture is

binding upon and inures to the benefit of the parties hereto and their

respective successors and assigns. This Indenture may not otherwise be assigned

by the parties thereto.




 




SECTION 14.12             Acknowledgment of Rights.




 




The Company acknowledges that, with respect to any

Debt Securities held by the Trust or the Institutional Trustee of the Trust, if

the Institutional Trustee of the Trust fails to enforce its rights under this

Indenture as the holder of Debt Securities held as the assets of the Trust

after the holders of a majority in Liquidation Amount of the Capital Securities

of the Trust have so directed in writing such Institutional Trustee, a holder of

record of such Capital Securities may to the fullest extent permitted by law

institute legal proceedings directly against the Company to enforce such

Institutional Trustee’s rights under this Indenture without first instituting

any legal proceedings against such Institutional Trustee or any other

Person.  Notwithstanding the foregoing,

if an Event of Default has occurred and is continuing and such event is

attributable to the failure of the Company to pay interest (or premium, if any)

or principal on the Debt Securities on the date such interest (or premium, if

any) or principal is otherwise due and payable (or in the case of redemption,

on the redemption date), the Company acknowledges that a holder of record of

Capital Securities of the Trust may directly institute a proceeding against the

Company for enforcement of payment to such holder directly of the principal of

(or premium, if any) or interest on the Debt Securities having an aggregate

principal amount equal to the aggregate Liquidation Amount of the Capital

Securities of such holder on or after the respective due date specified in the

Debt Securities.




 




ARTICLE XV


SUBORDINATION OF DEBT SECURITIES




 




SECTION 15.01             Agreement to Subordinate.




 




The Company covenants and agrees, and each holder of

Debt Securities issued hereunder and under any supplemental indenture (the

“Additional Provisions”) by such Securityholder’s acceptance thereof likewise

covenants and agrees, that all Debt Securities shall be issued subject to the

provisions of this Article XV; and each holder of a Debt Security, whether

upon original issue or upon transfer or assignment thereof, accepts and agrees

to be bound by such provisions.




 




The payment by the Company of the principal of, and

premium, if any, and interest on all Debt Securities issued hereunder and under

any Additional Provisions shall, to the extent and in the manner hereinafter

set forth, be subordinated and junior in right of payment to the prior payment

in full of all Senior Indebtedness of the Company, whether outstanding at the

date of this Indenture or thereafter incurred.




 




53





























 




No provision of this Article XV shall prevent the

occurrence of any default or Event of Default hereunder.




 




SECTION 15.02             Default on Senior Indebtedness.




 




In the event and during the continuation of any

default by the Company in the payment of principal, premium, interest or any

other payment due on any Senior Indebtedness of the Company following any

applicable grace period, or in the event that the maturity of any Senior

Indebtedness of the Company has been accelerated because of a default, and such

acceleration has not been rescinded or canceled and such Senior Indebtedness

has not been paid in full then, in either case, no payment shall be made by the

Company with respect to the principal of, or premium, if any, or interest on

the Debt Securities.




 




In the event that, notwithstanding the foregoing, any

payment shall be received by the Trustee when such payment is prohibited by the

preceding paragraph of this Section 15.02, such payment shall, subject to

Section 15.06, be held in trust for the benefit of, and shall be paid over

or delivered to, the holders of Senior Indebtedness or their respective

representatives, or to the trustee or trustees under any indenture pursuant to

which any of such Senior Indebtedness may have been issued, as their respective

interests may appear, but only to the extent that the holders of the Senior

Indebtedness (or their representative or representatives or a trustee) notify

the Trustee in writing within 90 days of such payment of the amounts then

due and owing on the Senior Indebtedness and only the amounts specified in such

notice to the Trustee shall be paid to the holders of Senior Indebtedness.




 




SECTION 15.03             Liquidation; Dissolution; Bankruptcy.




 




Upon any payment by the Company or distribution of

assets of the Company of any kind or character, whether in cash, property or

securities, to creditors upon any dissolution or winding-up or liquidation or

reorganization of the Company, whether voluntary or involuntary or in

bankruptcy, insolvency, receivership or other proceedings, all amounts due upon

all Senior Indebtedness of the Company shall first be paid in full, or payment

thereof provided for in money in accordance with its terms, before any payment

is made by the Company on account of the principal (and premium, if any) or

interest on the Debt Securities; and upon any such dissolution or winding-up or

liquidation or reorganization, any payment by the Company, or distribution of

assets of the Company of any kind or character, whether in cash, property or

securities, to which the Securityholders or the Trustee would be entitled to

receive from the Company, except for the provisions of this Article XV,

shall be paid by the Company, or by any receiver, trustee in bankruptcy,

liquidating trustee, agent or other Person making such payment or distribution,

or by the Securityholders or by the Trustee under this Indenture if received by

them or it, directly to the holders of Senior Indebtedness of the Company (pro

rata to such holders on the basis of the respective amounts of Senior

Indebtedness held by such holders, as calculated by the Company) or their

representative or representatives, or to the trustee or trustees under any indenture

pursuant to which any instruments evidencing such Senior Indebtedness may have

been issued, as their respective interests may appear, to the extent necessary

to pay such Senior Indebtedness in full, in money or money’s worth, after

giving effect to any concurrent payment or distribution to or for the holders

of such Senior Indebtedness, before any payment or distribution is made to the

Securityholders.




 




54





























 




In the event that, notwithstanding the foregoing, any

payment or distribution of assets of the Company of any kind or character,

whether in cash, property or securities, prohibited by the foregoing, shall be

received by the Trustee before all Senior Indebtedness of the Company is paid

in full, or provision is made for such payment in money in accordance with its

terms, such payment or distribution shall be held in trust for the benefit of

and shall be paid over or delivered to the holders of such Senior Indebtedness

or their representative or representatives, or to the trustee or trustees under

any indenture pursuant to which any instruments evidencing such Senior

Indebtedness may have been issued, as their respective interests may appear, as

calculated by the Company, for application to the payment of all Senior

Indebtedness of the Company remaining unpaid to the extent necessary to pay

such Senior Indebtedness in full in money in accordance with its terms, after

giving effect to any concurrent payment or distribution to or for the benefit

of the holders of such Senior Indebtedness.




 




For purposes of this Article XV, the words “cash,

property or securities” shall not be deemed to include shares of stock of the

Company as reorganized or readjusted, or securities of the Company or any other

corporation provided for by a plan of reorganization or readjustment, the

payment of which is subordinated at least to the extent provided in this

Article XV with respect to the Debt Securities to the payment of all

Senior Indebtedness of the Company, that may at the time be outstanding, provided,

that (a) such Senior Indebtedness is assumed by the new

corporation, if any, resulting from any such reorganization or readjustment,

and (b) the rights of the holders of such Senior Indebtedness are not,

without the consent of such holders, altered by such reorganization or

readjustment.  The consolidation of the

Company with, or the merger of the Company into, another corporation or the

liquidation or dissolution of the Company following the conveyance or transfer

of its property as an entirety, or substantially as an entirety, to another

corporation upon the terms and conditions provided for in Article IX of

this Indenture shall not be deemed a dissolution, winding-up, liquidation or

reorganization for the purposes of this Section 15.03 if such other

corporation shall, as a part of such consolidation, merger, conveyance or

transfer, comply with the conditions stated in Article IX of this

Indenture.  Nothing in Section 15.02

or in this Section 15.03 shall apply to claims of, or payments to, the

Trustee under or pursuant to Section 6.06 of this Indenture.




 




SECTION 15.04             Subrogation.




 




Subject to the payment in full of all Senior

Indebtedness of the Company, the Securityholders shall be subrogated to the

rights of the holders of such Senior Indebtedness to receive payments or

distributions of cash, property or securities of the Company applicable to such

Senior Indebtedness until the principal of (and premium, if any) and interest

on the Debt Securities shall be paid in full; and, for the purposes of such

subrogation, no payments or distributions to the holders of such Senior

Indebtedness of any cash, property or securities to which the Securityholders

or the Trustee would be entitled except for the provisions of this

Article XV, and no payment over pursuant to the provisions of this

Article XV to or for the benefit of the holders of such Senior

Indebtedness by Securityholders or the Trustee, shall, as between the Company,

its creditors other than holders of Senior Indebtedness of the Company, and the

holders of the Debt Securities be deemed to be a payment or distribution by the

Company to or on account of such Senior Indebtedness.  It is understood that the provisions of this Article XV are

and are intended solely for the purposes of defining the relative rights of the






 




55





























 




holders of the Debt

Securities, on the one hand, and the holders of such Senior Indebtedness, on

the other hand.




 




Nothing contained in this Article XV or elsewhere

in this Indenture, any Additional Provisions or in the Debt Securities is

intended to or shall impair, as between the Company, its creditors other than

the holders of Senior Indebtedness of the Company, and the holders of the Debt

Securities, the obligation of the Company, which is absolute and unconditional,

to pay to the holders of the Debt Securities the principal of (and premium, if

any) and interest on the Debt Securities as and when the same shall become due

and payable in accordance with their terms, or is intended to or shall affect

the relative rights of the holders of the Debt Securities and creditors of the

Company, other than the holders of Senior Indebtedness of the Company, nor

shall anything herein or therein prevent the Trustee or the holder of any Debt

Security from exercising all remedies otherwise permitted by applicable law

upon default under this Indenture, subject to the rights, if any, under this

Article XV of the holders of such Senior Indebtedness in respect of cash,

property or securities of the Company received upon the exercise of any such

remedy.




 




Upon any payment or distribution of assets of the

Company referred to in this Article XV, the Trustee, subject to the

provisions of Article VI of this Indenture, and the Securityholders shall

be entitled to conclusively rely upon any order or decree made by any court of

competent jurisdiction in which such dissolution, winding-up, liquidation or

reorganization proceedings are pending, or a certificate of the receiver,

trustee in bankruptcy, liquidation trustee, agent or other Person making such

payment or distribution, delivered to the Trustee or to the Securityholders,

for the purposes of ascertaining the Persons entitled to participate in such

distribution, the holders of Senior Indebtedness and other indebtedness of the

Company, the amount thereof or payable thereon, the amount or amounts paid or

distributed thereon and all other facts pertinent thereto or to this

Article XV.




 




SECTION 15.05             Trustee to Effectuate

Subordination.




 




Each Securityholder by such Securityholder’s

acceptance thereof authorizes and directs the Trustee on such Securityholder’s

behalf to take such action as may be necessary or appropriate to effectuate the

subordination provided in this Article XV and appoints the Trustee such

Securityholder’s attorney-in-fact for any and all such purposes.




 




SECTION 15.06             Notice by the Company.




 




The Company shall give prompt written notice to a

Responsible Officer of the Trustee at the Principal Office of the Trustee of

any fact known to the Company that would prohibit the making of any payment of

moneys to or by the Trustee in respect of the Debt Securities pursuant to the

provisions of this Article XV. 

Notwithstanding the provisions of this Article XV or any other

provision of this Indenture or any Additional Provisions, the Trustee shall not

be charged with knowledge of the existence of any facts that would prohibit the

making of any payment of moneys to or by the Trustee in respect of the Debt

Securities pursuant to the provisions of this Article XV, unless and until

a Responsible Officer of the Trustee at the Principal Office of the Trustee

shall have received written notice thereof from the Company or a holder or

holders of Senior Indebtedness or from any trustee therefor; and before the

receipt of 




 




56





























 




any such written notice,

the Trustee, subject to the provisions of Article VI of this Indenture,

shall be entitled in all respects to assume that no such facts exist; provided,

however, that if the Trustee shall not have received the notice provided

for in this Section 15.06 at least two Business Days prior to the date

upon which by the terms hereof any money may become payable for any purpose

(including, without limitation, the payment of the principal of (or premium, if

any) or interest on any Debt Security), then, anything herein contained to the

contrary notwithstanding, the Trustee shall have full power and authority to

receive such money and to apply the same to the purposes for which they were

received, and shall not be affected by any notice to the contrary that may be

received by it within two Business Days prior to such date.




 




The Trustee, subject to the provisions of

Article VI of this Indenture, shall be entitled to conclusively rely on

the delivery to it of a written notice by a Person representing himself or

herself to be a holder of Senior Indebtedness of the Company (or a trustee or

representative on behalf of such holder) to establish that such notice has been

given by a holder of such Senior Indebtedness or a trustee or representative on

behalf of any such holder or holders. 

In the event that the Trustee determines in good faith that further

evidence is required with respect to the right of any Person as a holder of

such Senior Indebtedness to participate in any payment or distribution pursuant

to this Article XV, the Trustee may request such Person to furnish

evidence to the reasonable satisfaction of the Trustee as to the amount of such

Senior Indebtedness held by such Person, the extent to which such Person is

entitled to participate in such payment or distribution and any other facts

pertinent to the rights of such Person under this Article XV, and, if such

evidence is not furnished, the Trustee may defer any payment to such Person

pending judicial determination as to the right of such Person to receive such

payment.




 




SECTION 15.07             Rights of the Trustee; Holders

of Senior Indebtedness.




 




The Trustee in its individual capacity shall be

entitled to all the rights set forth in this Article XV in respect of any

Senior Indebtedness at any time held by it, to the same extent as any other

holder of Senior Indebtedness, and nothing in this Indenture or any Additional

Provisions shall deprive the Trustee of any of its rights as such holder.




 




With respect to the holders of Senior Indebtedness of

the Company, the Trustee undertakes to perform or to observe only such of its

covenants and obligations as are specifically set forth in this

Article XV, and no implied covenants or obligations with respect to the

holders of such Senior Indebtedness shall be read into this Indenture or any

Additional Provisions against the Trustee. 

The Trustee shall not owe or be deemed to owe any fiduciary duty to the

holders of such Senior Indebtedness and, subject to the provisions of

Article VI of this Indenture, the Trustee shall not be liable to any

holder of such Senior Indebtedness if it shall pay over or deliver to

Securityholders, the Company or any other Person money or assets to which any

holder of such Senior Indebtedness shall be entitled by virtue of this

Article XV or otherwise.




 




Nothing in this Article XV shall apply to claims

of, or payments to, the Trustee under or pursuant to Section 6.06.




 




57





























 




SECTION 15.08             Subordination May Not Be

Impaired.




 




No right of any present or future holder of any Senior

Indebtedness of the Company to enforce subordination as herein provided shall

at any time in any way be prejudiced or impaired by any act or failure to act

on the part of the Company, or by any act or failure to act, in good faith, by

any such holder, or by any noncompliance by the Company, with the terms,

provisions and covenants of this Indenture, regardless of any knowledge thereof

that any such holder may have or otherwise be charged with.




 




Without in any way limiting the generality of the

foregoing paragraph, the holders of Senior Indebtedness of the Company may, at

any time and from time to time, without the consent of or notice to the Trustee

or the Securityholders, without incurring responsibility to the Securityholders

and without impairing or releasing the subordination provided in this

Article XV or the obligations hereunder of the holders of the Debt

Securities to the holders of such Senior Indebtedness, do any one or more of

the following: (a) change the manner, place or terms of payment or extend

the time of payment of, or renew or alter, such Senior Indebtedness, or

otherwise amend or supplement in any manner such Senior Indebtedness or any

instrument evidencing the same or any agreement under which such Senior

Indebtedness is outstanding; (b) sell, exchange, release or otherwise deal

with any property pledged, mortgaged or otherwise securing such Senior

Indebtedness; (c) release any Person liable in any manner for the

collection of such Senior Indebtedness; and (d) exercise or refrain from

exercising any rights against the Company, and any other Person.




 




Wilmington Trust Company, in its capacity as Trustee,

hereby accepts the trusts in this Indenture declared and provided, upon the

terms and conditions herein above set forth.




 




58





























 




IN WITNESS WHEREOF, the parties hereto have caused

this Indenture to be duly executed by their respective officers thereunto duly

authorized, as of the day and year first above written.




 




 




	

   


  	

  HF FINANCIAL CORP.


  
	

   


  	

   


  	

   


  
	

   


  	

   


  	

   


  
	

   


  	

  By:


  	

   


  
	

   


  	

   


  	

  Curtis L. Hage


  
	

   


  	

   


  	

  Chairman, President and Chief Executive


  
	

   


  	

   


  	

  Officer


  
	

   


  	

   


  	

   


  
	

   


  	

   


  	

   


  
	

   


  	

  WILMINGTON TRUST COMPANY,


  
	

   


  	

   


  	

  as Trustee


  
	

   


  	

   


  	

   


  
	

   


  	

   


  	

   


  
	

   


  	

  By:


  	

   


  
	

   


  	

   


  	

  Name:


  
	

   


  	

   


  	

  Title:


  





 




59





























 




EXHIBIT

A




 




FORM

OF FLOATING RATE JUNIOR SUBORDINATED DEBT SECURITY DUE


2032




 




[FORM OF FACE OF

SECURITY]




 




THIS

SECURITY HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED

(THE “SECURITIES ACT”), OR ANY STATE SECURITIES LAWS OR ANY OTHER APPLICABLE

SECURITIES LAWS.  NEITHER THIS SECURITY

NOR ANY INTEREST OR PARTICIPATION HEREIN MAY BE REOFFERED, SOLD, ASSIGNED,

TRANSFERRED, PLEDGED, ENCUMBERED OR OTHERWISE DISPOSED OF IN THE ABSENCE OF

SUCH REGISTRATION OR UNLESS SUCH TRANSACTION IS EXEMPT FROM, OR NOT SUBJECT TO,

THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT.  THE HOLDER OF THIS SECURITY BY ITS ACCEPTANCE HEREOF AGREES TO

OFFER, SELL OR OTHERWISE TRANSFER SUCH SECURITY ONLY (A) TO THE COMPANY,

(B) PURSUANT TO RULE 144A UNDER THE SECURITIES ACT

(“RULE 144A”), TO A PERSON THE HOLDER REASONABLY BELIEVES IS A “QUALIFIED

INSTITUTIONAL BUYER” AS DEFINED IN RULE 144A THAT PURCHASES FOR ITS OWN

ACCOUNT OR FOR THE ACCOUNT OF A QUALIFIED INSTITUTIONAL BUYER TO WHOM NOTICE IS

GIVEN THAT THE TRANSFER IS BEING MADE IN RELIANCE ON RULE 144A,

(C) PURSUANT TO AN EXEMPTION FROM REGISTRATION TO AN “ACCREDITED INVESTOR”

WITHIN THE MEANING OF SUBPARAGRAPH (a) (1), (2), (3) OR (7) OF

RULE 501 UNDER THE SECURITIES ACT THAT IS ACQUIRING THE SECURITY FOR ITS

OWN ACCOUNT, OR FOR THE ACCOUNT OF AN “ACCREDITED INVESTOR,” FOR INVESTMENT

PURPOSES AND NOT WITH A VIEW TO, OR FOR OFFER OR SALE IN CONNECTION WITH, ANY

DISTRIBUTION IN VIOLATION OF THE SECURITIES ACT, OR (D) PURSUANT TO

ANOTHER AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE

SECURITIES ACT, SUBJECT TO THE COMPANY’S RIGHT PRIOR TO ANY SUCH OFFER, SALE OR

TRANSFER PURSUANT TO CLAUSES (C) OR (D) TO REQUIRE THE DELIVERY OF AN

OPINION OF COUNSEL, CERTIFICATION AND/OR OTHER INFORMATION SATISFACTORY TO IT

IN ACCORDANCE WITH THE INDENTURE, A COPY OF WHICH MAY BE OBTAINED FROM THE

COMPANY.  THE HOLDER OF THIS SECURITY BY

ITS ACCEPTANCE HEREOF AGREES THAT IT WILL COMPLY WITH THE FOREGOING RESTRICTIONS.




 




THE

HOLDER OF THIS SECURITY BY ITS ACCEPTANCE HEREOF AGREES, REPRESENTS AND

WARRANTS THAT IT WILL NOT ENGAGE IN HEDGING TRANSACTIONS INVOLVING THIS

SECURITY UNLESS SUCH TRANSACTIONS ARE IN COMPLIANCE WITH THE SECURITIES ACT.




 




THE HOLDER OF THIS SECURITY BY ITS ACCEPTANCE HEREOF

ALSO AGREES, REPRESENTS AND WARRANTS THAT IT IS NOT AN EMPLOYEE BENEFIT,

INDIVIDUAL RETIREMENT ACCOUNT OR OTHER PLAN OR 




 




A-1





























 




ARRANGEMENT SUBJECT TO TITLE I OF THE

EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED (“ERISA”), OR

SECTION 4975 OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE

“CODE”), (EACH A “PLAN”), OR AN ENTITY WHOSE UNDERLYING ASSETS INCLUDE “PLAN

ASSETS” BY REASON OF ANY PLAN’S INVESTMENT IN THE ENTITY AND NO PERSON

INVESTING “PLAN ASSETS” OF ANY PLAN MAY ACQUIRE OR HOLD THIS SECURITY OR ANY

INTEREST THEREIN, UNLESS SUCH PURCHASER OR HOLDER IS ELIGIBLE FOR THE EXEMPTIVE

RELIEF AVAILABLE UNDER U.S. DEPARTMENT OF LABOR PROHIBITED TRANSACTION

CLASS EXEMPTION 96-23, 95-60, 91-38, 90-1 OR 84-14 OR ANOTHER APPLICABLE

EXEMPTION OR ITS PURCHASE AND HOLDING OF THIS SECURITY IS NOT PROHIBITED BY

SECTION 406 OF ERISA OR SECTION 4975 OF THE CODE WITH RESPECT TO SUCH

PURCHASE OR HOLDING.  ANY PURCHASER OR

HOLDER OF THIS SECURITY OR ANY INTEREST THEREIN WILL BE DEEMED TO HAVE

REPRESENTED BY ITS PURCHASE AND HOLDING THEREOF THAT EITHER (i) IT IS NOT

AN EMPLOYEE BENEFIT PLAN WITHIN THE MEANING OF SECTION 3(3) OF ERISA, OR A

PLAN TO WHICH SECTION 4975 OF THE CODE IS APPLICABLE, A TRUSTEE OR OTHER

PERSON ACTING ON BEHALF OF AN EMPLOYEE BENEFIT PLAN OR PLAN, OR ANY OTHER

PERSON OR ENTITY USING THE ASSETS OF ANY EMPLOYEE BENEFIT PLAN OR PLAN TO

FINANCE SUCH PURCHASE, OR (ii) SUCH PURCHASE WILL NOT RESULT IN A PROHIBITED

TRANSACTION UNDER SECTION 406 OF ERISA OR SECTION 4975 OF THE CODE

FOR WHICH THERE IS NO APPLICABLE STATUTORY OR ADMINISTRATIVE EXEMPTION.




 




IN

CONNECTION WITH ANY TRANSFER, THE HOLDER WILL DELIVER TO THE REGISTRAR AND

TRANSFER AGENT SUCH CERTIFICATES AND OTHER INFORMATION AS MAY BE REQUIRED BY

THE INDENTURE TO CONFIRM THAT THE TRANSFER COMPLIES WITH THE FOREGOING

RESTRICTIONS.




 




THIS SECURITY WILL BE ISSUED AND MAY BE TRANSFERRED ONLY

IN BLOCKS HAVING A PRINCIPAL AMOUNT OF NOT LESS THAN $100,000 AND MULTIPLES OF

$1,000 IN EXCESS THEREOF.  ANY ATTEMPTED

TRANSFER OF THIS SECURITY IN A BLOCK HAVING A PRINCIPAL AMOUNT OF LESS THAN

$100,000 SHALL BE DEEMED TO BE VOID AND OF NO LEGAL EFFECT WHATSOEVER. ANY SUCH

PURPORTED TRANSFEREE SHALL BE DEEMED NOT TO BE THE HOLDER OF THIS SECURITY FOR

ANY PURPOSE, INCLUDING, BUT NOT LIMITED TO, THE RECEIPT OF DISTRIBUTIONS ON

THIS SECURITY, AND SUCH PURPORTED TRANSFEREE SHALL BE DEEMED TO HAVE NO

INTEREST WHATSOEVER IN THIS SECURITY.




 




THIS

OBLIGATION IS NOT A DEPOSIT AND IS NOT INSURED BY THE UNITED STATES OR ANY

AGENCY OR FUND OF THE UNITED STATES, INCLUDING THE FEDERAL DEPOSIT INSURANCE

CORPORATION (THE “FDIC”).  THIS

OBLIGATION IS SUBORDINATED TO THE CLAIMS OF DEPOSITORS AND THE CLAIMS OF

GENERAL AND SECURED CREDITORS OF THE COMPANY, IS 




 




A-2





























 




INELIGIBLE AS COLLATERAL FOR A LOAN BY THE COMPANY OR ANY OF

ITS SUBSIDIARIES AND IS NOT SECURED.




 




A-3





























 




Floating Rate Junior

Subordinated Debt Security due 2032




 




of




 




HF FINANCIAL CORP.




 




HF Financial Corp., a savings and loan holding company

incorporated in Delaware (the “Company”), for value received promises to pay to

[                                ]

(the “Holder”), or registered assigns, the principal sum of

[                                               ]

Dollars

($[                          ])

on October 7, 2032, and to pay interest on said principal sum from July 11,

2002, or from the most recent interest payment date (each such date, an

“Interest Payment Date”) to which interest has been paid or duly provided for,

quarterly (subject to deferral as set forth herein) in arrears on January 7th,

April 7th, July 7th and October 7th of each

year commencing October 7, 2002, at a variable per annum rate equal to LIBOR

(as defined in the Indenture) plus 3.65% (the “Interest Rate”) (provided,

that the applicable Interest Rate may not exceed 12.5% through the

Interest Payment Date in July, 2007) until the principal hereof shall have

become due and payable, and on any overdue principal and (without duplication

and to the extent that payment of such interest is enforceable under applicable

law) on any overdue installment of interest at an annual rate equal to the

Interest Rate in effect for each such Extension Period compounded

quarterly.  The amount of interest

payable on any Interest Payment Date shall be computed on the basis of a

360-day year and the actual number of days elapsed in the relevant interest

period.  In the event that any date on

which the principal or interest is payable on this Debt Security is not a

Business Day, then payment payable on such date will be made on the next

succeeding day that is a Business Day (and without any interest or other

payment in respect of any such delay), except that, if such Business Day is in

the next succeeding calendar year, such payment shall be made on the

immediately preceding Business Day, in each case with the same force and effect

as if made on such date.  The interest

installment so payable, and punctually paid or duly provided for, on any

Interest Payment Date will, as provided in the Indenture, be paid to the Person

in whose name this Debt Security (or one or more Predecessor Securities, as

defined in said Indenture) is registered at the close of business on the

regular record date for such interest installment, except that interest and any

Deferred Interest payable on the Maturity Date shall be paid to the Person to

whom principal is paid.  Any such

interest installment not punctually paid or duly provided for shall forthwith

cease to be payable to the registered holders on such regular record date and

may be paid to the Person in whose name this Debt Security (or one or more

Predecessor Debt Securities) is registered at the close of business on a

special record date to be fixed by the Trustee for the payment of such

defaulted interest, notice whereof shall be given to the registered holders of

the Debt Securities not less than 10 days prior to such special record date,

all as more fully provided in the Indenture. 

The principal of and interest on this Debt Security shall be payable at

the office or agency of the Trustee (or other paying agent appointed by the

Company) maintained for that purpose in any coin or currency of the United

States of America that at the time of payment is legal tender for payment of

public and private debts; provided, however, that payment of

interest may be made at the option of the Company by check mailed to the

registered holder at such address as shall appear in the Debt Security Register

or by wire transfer to an account appropriately designated by the holder

hereof.  Notwithstanding the foregoing,

so long as the holder of this Debt Security is the Institutional Trustee, the

payment of the principal of and 




 




A-4





























 




interest on this Debt

Security will be made in immediately available funds at such place and to such

account as may be designated by the Trustee.




 




So long as no Event of Default has occurred and is

continuing, the Company shall have the right, from time to time and without

causing an Event of Default, to defer payments of interest on the Debt

Securities by extending the interest payment period on the Debt Securities at

any time and from time to time during the term of the Debt Securities, for up

to 20 consecutive quarterly periods (each such extended interest payment

period, an “Extension Period”), during which Extension Period no interest shall

be due and payable (except any Additional Interest that may be due and

payable).  During any Extension Period,

interest will continue to accrue on the Debt Securities, and interest on such

accrued interest (such accrued interest and interest thereon referred to herein

as “Deferred Interest”) will accrue, at the Interest Rate, compounded quarterly

from the date such Deferred Interest would have been payable were it not for

the Extension Period, both to the extent permitted by law.  No Extension Period may end on a date other

than an Interest Payment Date.  At the

end of any such Extension Period the Company shall pay all Deferred Interest

then accrued and unpaid on the Debt Securities; provided,  however,

that no Extension Period may extend beyond the Maturity Date and provided,

further, however, during any such Extension Period, the Company

may not (i) declare or pay any dividends or distributions on, or redeem,

purchase, acquire, or make a liquidation payment with respect to, any of the

Company’s capital stock or (ii) make any payment of principal of or interest

or premium, if any, on or repay, repurchase or redeem any debt securities of

the Company that rank pari passu in all respects with or junior

in interest to the Debt Securities (other than (a) repurchases,

redemptions or other acquisitions of shares of capital stock of the Company

(A) in connection with any employment contract, benefit plan or other

similar arrangement with or for the benefit of one or more employees, officers,

directors or consultants, (B) in connection with a dividend reinvestment

or stockholder stock purchase plan or (C) in connection with the issuance

of capital stock of the Company (or securities convertible into or exercisable

for such capital stock), as consideration in an acquisition transaction entered

into prior to the applicable Extension Period, (b) as a result of any

exchange or conversion of any class or series of the Company’s capital stock

(or any capital stock of a subsidiary of the Company) for any class or series

of the Company’s capital stock or of any class or series of the Company’s

indebtedness for any class or series of the Company’s capital stock,

(c) the purchase of fractional interests in shares of the Company’s

capital stock pursuant to the conversion or exchange provisions of such capital

stock or the security being converted or exchanged, (d) any declaration of

a dividend in connection with any stockholder’s rights plan, or the issuance of

rights, stock or other property under any stockholder’s rights plan, or the

redemption or repurchase of rights pursuant thereto, or (e) any dividend

in the form of stock, warrants, options or other rights where the dividend

stock or the stock issuable upon exercise of such warrants, options or other

rights is the same stock as that on which the dividend is being paid or ranks pari passu

with or junior to such stock).  Prior to

the termination of any Extension Period, the Company may further extend such

period, provided, that such period together with all such

previous and further consecutive extensions thereof shall not exceed 20

consecutive quarterly periods, or extend beyond the Maturity Date.  Upon the termination of any Extension Period

and upon the payment of all Deferred Interest, the Company may commence a new

Extension Period, subject to the foregoing requirements.  No interest or Deferred Interest shall be

due and payable during an Extension Period, except at the end thereof, but

interest shall accrue upon each installment of interest that would otherwise

have been due and payable during such Extension Period until such installment 




 




A-5





























 




is paid.  The Company must give the Trustee notice of

its election to begin such Extension Period at least one Business Day prior to

the earlier of (i) the next succeeding date on which interest on the Debt

Securities would have been payable except for the election to begin such

Extension Period or (ii) the date such interest is payable, but in any

event not later than the related regular record date.




 




The indebtedness evidenced by this Debt Security is,

to the extent provided in the Indenture, subordinate and junior in right of

payment to the prior payment in full of all Senior Indebtedness, and this Debt

Security is issued subject to the provisions of the Indenture with respect

thereto.  Each holder of this Debt

Security, by accepting the same, (a) agrees to and shall be bound by such

provisions, (b) authorizes and directs the Trustee on such holder’s behalf

to take such action as may be necessary or appropriate to acknowledge or

effectuate the subordination so provided and (c) appoints the Trustee such

holder’s attorney-in-fact for any and all such purposes.  Each holder hereof, by such holder’s

acceptance hereof, hereby waives all notice of the acceptance of the

subordination provisions contained herein and in the Indenture by each holder

of Senior Indebtedness, whether now outstanding or hereafter incurred, and

waives reliance by each such holder upon said provisions.




 




The Company waives demand, presentment for payment,

notice of nonpayment, notice of protest, and all other notices.




 




This Debt Security shall not be entitled to any

benefit under the Indenture hereinafter referred to and shall not be valid or

become obligatory for any purpose until the certificate of authentication

hereon shall have been signed by or on behalf of the Trustee.




 




The provisions of this Debt Security are continued on

the reverse side hereof and such continued provisions shall for all purposes

have the same effect as though fully set forth at this place.




 




A-6





























 




IN WITNESS WHEREOF, the Company has duly executed this

certificate.




 




	

   


  	

  HF FINANCIAL CORP.


  
	

   


  	

   


  	

   


  
	

   


  	

   


  	

   


  
	

   


  	

  By:


  	

   


  
	

   


  	

   


  	

  [Name]


  
	

   


  	

   


  	

  [Title]


  
	

   


  	

   


  	

   


  
	

   


  	

   


  	

   


  
	

  Dated:


  	

   


  	

  ,


  	

   


  	

   


  	

   


  	

   


  
							





 




 




CERTIFICATE OF

AUTHENTICATION




 




This is one of the Debt Securities referred to in the

within-mentioned Indenture.




 




	

   


  	

  WILMINGTON TRUST COMPANY,


  
	

   


  	

   


  	

  not in its individual capacity but solely


  as the Trustee


  
	

   


  	

   


  	

   


  
	

   


  	

   


  	

   


  
	

   


  	

  By:


  	

   


  
	

   


  	

   


  	

  Authorized Officer


  
	

   


  	

   


  	

   


  
	

   


  	

   


  	

   


  
	

  Dated:


  	

   


  	

  ,


  	

   


  	

   


  	

   


  	

   


  
							





 




A-7





























 




[FORM OF REVERSE OF

SECURITY]




 




This Debt Security is one of a duly authorized series

of Debt Securities of the Company, all issued or to be issued pursuant to an

Indenture (the “Indenture”), dated as of July 11, 2002, duly executed and

delivered between the Company and

[                                   ],

as Trustee (the “Trustee”), to which Indenture and all indentures supplemental

thereto reference is hereby made for a description of the rights, limitations

of rights, obligations, duties and immunities thereunder of the Trustee, the

Company and the holders of the Debt Securities (referred to herein as the “Debt

Securities”) of which this Debt Security is a part.  The summary of the terms of this Debt Security contained herein

does not purport to be complete and is qualified by reference to the Indenture.




 




Upon the occurrence and continuation of a Tax Event,

an Investment Company Event or a Capital Treatment Event, this Debt Security

may become due and payable, in whole but not in part, at any time, within

90 days following the occurrence of such Tax Event, Investment Company

Event or Capital Treatment Event (the “Special Redemption Date”), as the case

may be, at the Special Redemption Price. 

The Company shall also have the right to redeem this Debt Security at

the option of the Company, in whole or in part, on any January 7th,

April 7th, July 7th or October 7th on or after

July 7, 2007 (a “Redemption Date”), at the Redemption Price.




 




Any redemption pursuant to the preceding paragraph

will be made, subject to the receipt by the Company of prior approval from the

Office of Thrift Supervision (the “OTS”) if then required under applicable

capital guidelines or policies of the OTS, upon not less than 30 days’ nor

more than 60 days’ notice.  If the

Debt Securities are only partially redeemed by the Company, the Debt Securities

will be redeemed pro  rata  or by lot or by any other method utilized

by the Trustee.




 




“Redemption Price” means 100% of the principal amount

of the Debt Securities being redeemed plus accrued and unpaid interest on such

Debt Securities to the Redemption Date or, in the case of a redemption due to

the occurrence of a Special Event, to the Special Redemption Date if such

Special Redemption Date is on or after July 7, 2007.




 




“Special Redemption Price” means

(1) if the Special Redemption Date is before July 7, 2007, the greater of (a) 100% of the principal

amount of the Debt Securities being redeemed pursuant to Section 10.02 of the Indenture or (b) as

determined by a Quotation Agent, the sum of the present values of the principal

amount payable as part of the Redemption Price with respect to a redemption as

of July 7, 2007, together with the

present value of interest payments calculated at a fixed per annum rate of

interest equal to 9.95% over the Remaining Life of such Debt Securities,

discounted to the Special Redemption Date on a quarterly basis (assuming a

360-day year consisting of twelve 30-day months) at the Treasury Rate plus

..50%, plus, in the case of either (a) or (b), accrued and unpaid interest

on such Debt Securities to the Special Redemption Date and (2) if the

Special Redemption Date is on or after July 7, 2007, the Redemption Price for such Special

Redemption Date.




 




“Comparable Treasury Issue” means, with respect to any

Special Redemption Date, the United States Treasury security selected by the

Quotation Agent as having a maturity 




 




A-8





























 




comparable to the

Remaining Life that would be utilized, at the time of selection and in

accordance with customary financial practice, in pricing new issues of

corporate debt securities of comparable maturity to the Remaining Life.  If no United States Treasury security has a

maturity which is within a period from three months before to three months

after July 7, 2007, the two most closely corresponding United States Treasury

securities shall be used as the Comparable Treasury Issue, and the Treasury

Rate shall be interpolated or extrapolated on a straight-line basis, rounding

to the nearest month using such securities.




 




“Comparable Treasury Price” means (a)the average of

five Reference Treasury Dealer Quotations for such Special Redemption Date,

after excluding the highest and lowest such Reference Treasury Dealer

Quotations, or (b) if the Quotation Agent receives fewer than five such

Reference Treasury Dealer Quotations, the average of all such Quotations.




 




“Primary Treasury Dealer” means a primary United

States Government securities dealer in New York City.




 




“Quotation Agent” means Salomon Smith Barney Inc. and

its successors; provided, however, that if the foregoing shall

cease to be a Primary Treasury Dealer, the Company shall substitute therefor

another Primary Treasury Dealer.




 




“Reference Treasury Dealer” means (i) the

Quotation Agent and (ii) any other Primary Treasury Dealer selected by the

Trustee after consultation with the Company.




 




“Reference Treasury Dealer Quotations” means, with

respect to each Reference Treasury Dealer and any Special Redemption Date, the

average, as determined by the Quotation Agent, of the bid and asked prices for

the Comparable Treasury Issue (expressed in each case as a percentage of its

principal amount) quoted in writing to the Trustee by such Reference Treasury

Dealer at 5:00 p.m., New York City time, on the third Business Day preceding

such Special Redemption Date.




 




“Treasury Rate” means (i) the yield, under the

heading which represents the average for the week immediately prior to the date

of calculation, appearing in the most recently published statistical release

designated H.15 (519) or any successor publication which is published

weekly by the Federal Reserve and which establishes yields on actively traded

United States Treasury securities adjusted to constant maturity under the

caption “Treasury Constant Maturities,” for the maturity corresponding to the

Remaining Life (if no maturity is within three months before or after the

Remaining Life, yields for the two published maturities most closely

corresponding to the Remaining Life shall be determined and the Treasury Rate

shall be interpolated or extrapolated from such yields on a straight-line

basis, rounding to the nearest month) or (ii) if such release (or any

successor release) is not published during the week preceding the calculation

date or does not contain such yields, the rate per annum equal to the quarterly

equivalent yield to maturity of the Comparable Treasury Issue, calculated using

a price for the Comparable Treasury Issue (expressed as a percentage of its

principal amount) equal to the Comparable Treasury Price for such Special

Redemption Date.  The Treasury Rate

shall be calculated on the third Business Day preceding the Special Redemption

Date.




 




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In the event of redemption of this Debt Security in

part only, a new Debt Security or Debt Securities for the unredeemed portion

hereof will be issued in the name of the holder hereof upon the cancellation

hereof.




 




In case an Event of Default, as defined in the

Indenture, shall have occurred and be continuing, the principal of all of the

Debt Securities may be declared due and payable, and upon such declaration of

acceleration shall become due and payable, in the manner, with the effect and

subject to the conditions provided in the Indenture.




 




The Indenture contains provisions permitting the

Company and the Trustee, with the consent of the holders of not less than a

majority in aggregate principal amount of the Debt Securities at the time

outstanding affected thereby, as specified in the Indenture, to execute

supplemental indentures for the purpose of adding any provisions to or changing

in any manner or eliminating any of the provisions of the Indenture or of any

supplemental indenture or of modifying in any manner the rights of the holders

of the Debt Securities; provided, however, that no such

supplemental indenture shall, among other things, without the consent of the

holders of each Debt Security then outstanding and affected thereby

(i) extend the fixed maturity of the Debt Securities, or reduce the

principal amount thereof or any redemption premium thereon, or reduce the rate

or extend the time of payment of interest thereon, or make the principal of, or

any interest or premium on, the Debt Securities payable in any coin or currency

other than that provided in the Debt Securities, or impair or affect the right

of any holder of Debt Securities to institute suit for the payment thereof, or

(ii) reduce the aforesaid percentage of Debt Securities, the holders of

which are required to consent to any such supplemental indenture.  The Indenture also contains provisions

permitting the holders of a majority in aggregate principal amount of the Debt

Securities at the time outstanding, on behalf of all of the holders of the Debt

Securities, to waive any past default in the performance of any of the

covenants contained in the Indenture, or established pursuant to the Indenture,

and its consequences, except a default in the payment of the principal of or

premium, if any, or interest on any of the Debt Securities.  Any such consent or waiver by the registered

holder of this Debt Security (unless revoked as provided in the Indenture)

shall be conclusive and binding upon such holder and upon all future holders

and owners of this Debt Security and of any Debt Security issued in exchange herefor

or in place hereof (whether by registration of transfer or otherwise),

irrespective of whether or not any notation of such consent or waiver is made

upon this Debt Security.




 




No reference herein to the Indenture and no provision

of this Debt Security or of the Indenture shall alter or impair the obligation

of the Company, which is absolute and unconditional, to pay the principal of

and premium, if any, and interest on this Debt Security at the time and place

and at the rate and in the money herein prescribed.




 




As provided in the Indenture and subject to certain

limitations herein and therein set forth, this Debt Security is transferable by

the registered holder hereof on the Debt Security Register of the Company, upon

surrender of this Debt Security for registration of transfer at the office or

agency of the Trustee in Wilmington, Delaware accompanied by a written

instrument or instruments of transfer in form satisfactory to the Company or

the Trustee duly executed by the registered holder hereof or such holder’s

attorney duly authorized in writing, and thereupon one or more new Debt

Securities of authorized denominations and for the same aggregate principal

amount will be issued to the designated transferee or transferees.  No service charge will be




 




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made for any such

registration of transfer, but the Company may require payment of a sum

sufficient to cover any tax or other governmental charge payable in relation

thereto.




 




Prior to due presentment for registration of transfer

of this Debt Security, the Company, the Trustee, any Authenticating Agent, any

paying agent, any transfer agent and the Debt Security registrar may deem and

treat the registered holder hereof as the absolute owner hereof (whether or not

this Debt Security shall be overdue and notwithstanding any notice of ownership

or writing hereon) for the purpose of receiving payment of or on account of the

principal hereof and interest due hereon and for all other purposes, and

neither the Company nor the Trustee nor any Authenticating Agent nor any paying

agent nor any transfer agent nor any Debt Security registrar shall be affected

by any notice to the contrary.




 




No recourse shall be had for the payment of the

principal of or the interest on this Debt Security, or for any claim based

hereon, or otherwise in respect hereof, or based on or in respect of the

Indenture, against any incorporator, stockholder, officer or director, past,

present or future, as such, of the Company or of any predecessor or successor

corporation, whether by virtue of any constitution, statute or rule of law, or

by the enforcement of any assessment or penalty or otherwise, all such

liability being, by the acceptance hereof and as part of the consideration for

the issuance hereof, expressly waived and released.




 




The Debt Securities are issuable only in registered

certificated form without coupons.  As

provided in the Indenture and subject to certain limitations herein and therein

set forth, Debt Securities are exchangeable for a like aggregate principal

amount of Debt Securities of a different authorized denomination, as requested

by the holder surrendering the same.




 




All terms used in this Debt Security that are defined

in the Indenture shall have the meanings assigned to them in the Indenture.




 




THE LAW OF THE STATE OF NEW YORK SHALL GOVERN THE

INDENTURE AND THE DEBT SECURITIES, WITHOUT REGARD TO CONFLICT OF LAWS

PRINCIPLES THEREOF.




 




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