**Exhibit10.2**

 

HF FINANCIAL CORP.

 

as Issuer

 

 

INDENTURE

 

Dated as of December 19,2002

 

 

WILMINGTON TRUST COMPANY

 

as Trustee

 

 

FLOATING RATE JUNIORSUBORDINATED DEBT SECURITIES DUE 2033

 

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**TABLE OFCONTENTS**

** **
| 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. |
|                                                                                                                | SECTION 3.08       Limitation  on Dividends. |
|                                                                                                                | SECTION 3.09       Covenants  as to the Trust. |
|                                                                                                                |   |
| ARTICLE IV          LISTS AND REPORTS                                  |
|                                                                                                                |   |
|                                                                                                                | SECTION 4.01       Securityholders’  Lists. |
|                                                                                                                | SECTION  4.02       Preservation  and Disclosure of Lists. |
|                                                                                                                |   |
| ARTICLE  V           REMEDIES OF THE TRUSTEE AND  SECURITYHOLDERS |
|                                                                                                                |   |
|                                                                                                                | 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. |

 

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|                                                                                     | 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.                                                                |
|                                                                                     | 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.                                                                                       |

 

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| ARTICLE IX         SUPPLEMENTAL INDENTURES                                |
|-------------------------------------------------------------------------------------------------------------------|
|                                                                                                              |   |
|                                                                                                              | SECTION 9.01       Supplemental  Indentures without Consent of Securityholders. |
|                                                                                                              | 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. |
|                                                                                                              | 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. |

 

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|                                                                                    | 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  |

 

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THIS INDENTURE, dated as of December 19, 2002, betweenHF Financial Corp., a savings and loan holding company incorporated in Delaware(hereinafter sometimes called the “Company”), and Wilmington Trust Company, aDelaware 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, theCompany has duly authorized the issuance of its Floating Rate JuniorSubordinated Debt Securities due 2033 (the “Debt Securities”) under thisIndenture and to provide, among other things, for the execution andauthentication, delivery and administration thereof, the Company has dulyauthorized the execution of this Indenture.

 

NOW, THEREFORE, in consideration of the premises, andthe purchase of the Debt Securities by the holders thereof, the Companycovenants and agrees with the Trustee for the equal and proportionate benefitof the respective holders from time to time of the Debt Securities as follows:

 

# ARTICLE IDEFINITIONS

#  

## SECTION 1.01       Definitions.

##  

The terms defined in this Section 1.01 (except asherein otherwise expressly provided or unless the context otherwise requires)for all purposes of this Indenture and of any indenture supplemental heretoshall have the respective meanings specified in this Section 1.01. Allaccounting terms used herein and not expressly defined shall have the meaningsassigned to such terms in accordance with generally accepted accountingprinciples and the term “generally accepted accounting principles” means suchaccounting principles as are generally accepted in the United States at thetime of any computation.  The words“herein,” “hereof” and “hereunder” and other words of similar import refer tothis Indenture as a whole and not to any particular Article, Section or othersubdivision.

 

“Additional Interest” shall have the meaning set forthin Section 3.06.

 

“Additional Provisions” shall have the meaning setforth in Section 15.01.

 

“Authenticating Agent” means any agent or agents ofthe Trustee which at the time shall be appointed and acting pursuant toSection 6.12.

 

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

 

“Board of Directors” means the board of directors orthe executive committee or any other duly authorized designated officers of theCompany.

 

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“Board Resolution” means a copy of a resolutioncertified by the Secretary or an Assistant Secretary of the Company to havebeen duly adopted by the Board of Directors and to be in full force and effecton 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 requiredby 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 andthe Institutional Trustee with respect to the Trust Securities.

 

“Capital Securities” means undivided beneficialinterests in the assets of the Trust which are designated as “MMCapSSM” and rank *pari passu* with Common Securitiesissued by the Trust; provided, however, that if an Event ofDefault (as defined in the Declaration) has occurred and is continuing, therights of holders of such Common Securities to payment in respect ofdistributions and payments upon liquidation, redemption and otherwise aresubordinated to the rights of holders of such Capital Securities.

 

“Capital Securities Guarantee” means the guaranteeagreement that the Company will enter into with Wilmington Trust Company orother Persons that operates directly or indirectly for the benefit of holdersof Capital Securities of the Trust.

 

“Capital Treatment Event” means the receipt by theCompany and the Trust of an Opinion of Counsel experienced in such matters tothe effect that, as a result of (a) any amendment to, or change in, thelaws, rules or regulations of the United States or any political subdivisionthereof or therein, or any rules, guidelines or policies of an applicableregulatory authority for the Company or (b) any official or administrativepronouncement or action or decision interpreting or applying such laws, rulesor regulations, which amendment or change is effective or which pronouncement,action or decision is announced on or after the date of original issuance ofthe Debt Securities, there is more than an insubstantial risk that the Companywill not, within 90 days of the date of such opinion, be entitled to treatan amount equal to the aggregate Liquidation Amount of the Capital Securitiesas “Tier 1 Capital” (or its then equivalent if the Company were subject to suchcapital requirement) applied as if the Company (or its successors) were a bankholding company for purposes of the capital adequacy guidelines of the FederalReserve (or any successor regulatory authority with jurisdiction over bankholding companies), or any capital adequacy guidelines as then in effect andapplicable to the Company, provided, however, that thedistribution of the Debt Securities in connection with the liquidation of theTrust by the Company shall not in and of itself constitute a Capital TreatmentEvent unless such liquidation shall have occurred in connection with a TaxEvent or an Investment Company Event.

 

“Certificate” means a certificate signed by any one ofthe principal executive officer, the principal financial officer or theprincipal accounting officer of the Company.

 

“Common Securities” means undivided beneficialinterests in the assets of the Trust which are designated as “CommonSecurities” and rank *pari passu* with Capital Securities

 

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issued by the Trust; provided, however, that if an Eventof Default (as defined in the Declaration) has occurred and is continuing, therights of holders of such Common Securities to payment in respect of distributionsand payments upon liquidation, redemption and otherwise are subordinated to therights of holders of such Capital Securities.

 

“Company” means HF Financial Corp., a savings and loanholding company incorporated in Delaware, and, subject to the provisions ofArticle XI, shall include its successors and assigns.

 

“Comparable Treasury Issue” means with respect to anySpecial Redemption Date, the United States Treasury security selected by theQuotation Agent as having a maturity comparable to the Remaining Life thatwould be utilized, at the time of selection and in accordance with customaryfinancial practice, in pricing new issues of corporate debt securities ofcomparable maturity to the Remaining Life. If no United States Treasury security has a maturity which is within aperiod from three months before to three months after January 7, 2008, the twomost closely corresponding United States Treasury securities shall be used asthe Comparable Treasury Issue, and the Treasury Rate shall be interpolated orextrapolated on a straight-line basis, rounding to the nearest month using suchsecurities.

 

“Comparable Treasury Price” means (a) the averageof five Reference Treasury Dealer Quotations for such Special Redemption Date,after excluding the highest and lowest such Reference Treasury DealerQuotations, or (b) if the Quotation Agent receives fewer than five suchReference Treasury Dealer Quotations, the average of all such Quotations.

 

“Debt Security” or “Debt Securities” has the meaningstated in the first recital of this Indenture.

 

“Debt Security Register” has the meaning specified inSection 2.05.

 

“Declaration” means the Amended and RestatedDeclaration of Trust of the Trust dated as of December 19, 2002, as amended orsupplemented from time to time.

 

“Default” means any event, act or condition that withnotice or lapse of time, or both, would constitute an Event of Default.

 

“Defaulted Interest” has the meaning set forth inSection 2.08.

 

“Deferred Interest” has the meaning set forth inSection 2.11.

 

“Event of Default” means any event specified inSection 5.01, which has continued for the period of time, if any, andafter the giving of the notice, if any, therein designated.

 

“Extension Period” has the meaning set forth inSection 2.11.

 

“Federal Reserve” means the Board of Governors of theFederal Reserve System.

 

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“Indenture” means this instrument as originallyexecuted or, if amended or supplemented as herein provided, as so amended orsupplemented, or both.

 

“Institutional Trustee” has the meaning set forth inthe Declaration.

 

“Interest Payment Date” means January 7, April 7, July7 and October 7 of each year, commencing on April 7, 2003, during the term ofthis Indenture.

 

“Interest Rate” means a per annum rate of interest,reset quarterly, equal to LIBOR, as determined on the LIBOR Determination Dateimmediately preceding each Interest Payment Date, plus 3.35%; provided, thatthe applicable Interest Rate may not exceed 12.5% through the Interest PaymentDate in January, 2008.

 

“Investment Company Event” means the receipt by theCompany and the Trust of an Opinion of Counsel experienced in such matters tothe effect that, as a result of a change in law or regulation or written changein interpretation or application of law or regulation by any legislative body,court, governmental agency or regulatory authority, there is more than aninsubstantial risk that the Trust is or, within 90 days of the date ofsuch opinion will be, considered an “investment company” that is required to beregistered under the Investment Company Act of 1940, as amended, which changeor prospective change becomes effective or would become effective, as the casemay be, on or after the date of the original issuance of the Debt Securities.

 

“LIBOR” means the London Interbank Offered Rate forU.S. Dollar deposits in Europe as determined by the Calculation Agentaccording to Section 2.10(b).

 

“LIBOR Banking Day” has the meaning set forth inSection 2.10(b)(i).

 

“LIBOR Business Day” has the meaning set forth inSection 2.10(b)(i).

 

“LIBOR Determination Date” has the meaning set forthin Section 2.10(b)(i).

 

“Liquidation Amount” means the stated amount of $1,000per Trust Security.

 

“Maturity Date” means January 7, 2033.

 

“Officers’ Certificate” means a certificate signed bythe Chairman of the Board, the Vice Chairman, the President or any VicePresident, and by the Chief Financial Officer, the Treasurer, an AssistantTreasurer, the Comptroller, an Assistant Comptroller, the Secretary or anAssistant Secretary of the Company, and delivered to the Trustee.  Each such certificate shall include thestatements provided for in Section 14.06 if and to the extent required bythe provisions of such Section.

 

“Opinion of Counsel” means an opinion in writingsigned 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 thestatements provided for in Section 14.06 if and to the extent required bythe provisions of such Section.

 

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“OTS” means the Office of Thrift Supervision.

 

The term “outstanding,” when used with reference toDebt Securities, subject to the provisions of Section 7.04, means, as ofany particular time, all Debt Securities authenticated and delivered by theTrustee or the Authenticating Agent under this Indenture, except

 

### (a)           DebtSecurities theretofore canceled by the Trustee or the Authenticating Agent ordelivered to the Trustee for cancellation;

 

### (b)           DebtSecurities, or portions thereof, for the payment or redemption of which moneysin the necessary amount shall have been deposited in trust with the Trustee orwith any Paying Agent (other than the Company) or shall have been set aside andsegregated in trust by the Company (if the Company shall act as its own PayingAgent); provided, that, if such Debt Securities, or portionsthereof, are to be redeemed prior to maturity thereof, notice of suchredemption shall have been given as provided in Articles X and XIV orprovision satisfactory to the Trustee shall have been made for giving suchnotice; and

###  

### (c)           DebtSecurities paid pursuant to Section 2.06 or in lieu of or in substitutionfor which other Debt Securities shall have been authenticated and deliveredpursuant to the terms of Section 2.06 unless proof satisfactory to theCompany and the Trustee is presented that any such Debt Securities are held bybona fide holders in due course.

 

“Paying Agent” has the meaning set forth in Section3.04(e).

 

“Person” means any individual, corporation, limitedliability company, partnership, joint venture, association, joint-stockcompany, trust, unincorporated organization or government or any agency orpolitical subdivision thereof.

 

“Predecessor Security” of any particular Debt Securitymeans every previous Debt Security evidencing all or a portion of the same debtas that evidenced by such particular Debt Security; and, for the purposes ofthis definition, any Debt Security authenticated and delivered underSection 2.06 in lieu of a lost, destroyed or stolen Debt Security shall bedeemed to evidence the same debt as the lost, destroyed or stolen DebtSecurity.

 

“Primary Treasury Dealer” means a primary UnitedStates Government securities dealer in New York City.

 

“Principal Office of the Trustee” means the office ofthe Trustee, at which at any particular time its corporate trust business shallbe principally administered, which at all times shall be located within theUnited States and at the time of the execution of this Indenture shall beRodney Square North, 1100 North Market Street, Wilmington, Delaware 19890-0001.

 

“Quotation Agent” means Salomon Smith Barney Inc. andits successors; provided, however, that if the foregoing shallcease to be a Primary Treasury Dealer, the Company shall substitute thereforanother Primary Treasury Dealer.

 

“Redemption Date” has the meaning set forth inSection 10.01.

 

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“Redemption Price” means 100% of the principal amountof the Debt Securities being redeemed plus accrued and unpaid interest on suchDebt Securities to the Redemption Date or, in the case of a redemption due tothe occurrence of a Special Event, to the Special Redemption Date if suchSpecial Redemption Date is on or after January 7, 2008.

 

“Reference Treasury Dealer” means (i) theQuotation Agent and (ii) any other Primary Treasury Dealer selected by theTrustee after consultation with the Company.

 

“Reference Treasury Dealer Quotations” means, withrespect to each Reference Treasury Dealer and any Special Redemption Date, theaverage, as determined by the Quotation Agent, of the bid and asked prices forthe Comparable Treasury Issue (expressed in each case as a percentage of its principalamount) quoted in writing to the Trustee by such Reference Treasury Dealer at5:00 p.m., New York City time, on the third Business Day preceding such SpecialRedemption Date.

 

“Remaining Life” means, with respect to any DebtSecurity, the period from the Special Redemption Date for such Debt Security toJanuary 7, 2008.

 

“Responsible Officer” means, with respect to theTrustee, any officer within the Principal Office of the Trustee with directresponsibility for the administration of the Indenture, including any vice–president,any assistant vice–president, any secretary, any assistant secretary, thetreasurer, any assistant treasurer, any trust officer or other officer of thePrincipal Office of the Trustee customarily performing functions similar tothose performed by any of the above designated officers and also means, withrespect to a particular corporate trust matter, any other officer to whom suchmatter is referred because of that officer’s knowledge of and familiarity withthe particular subject.

 

“Securityholder,” “holder of Debt Securities” or othersimilar terms, means any Person in whose name at the time a particular DebtSecurity is registered on the Debt Security Register.

 

“Senior Indebtedness” means, with respect to theCompany, (i) the principal, premium, if any, and interest in respect of (A)indebtedness of the Company for money borrowed and (B) indebtedness evidencedby securities, debentures, notes, bonds or other similar instruments issued bythe Company; (ii) all capital lease obligations of the Company; (iii) allobligations of the Company issued or assumed as the deferred purchase price ofproperty, all conditional sale obligations of the Company and all obligationsof the Company under any title retention agreement (but excluding tradeaccounts payable arising in the ordinary course of business); (iv) allobligations of the Company for the reimbursement of any letter of credit, anybanker’s acceptance, any security purchase facility, any repurchase agreementor 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 ofother Persons for the payment of which the Company is responsible or liable asobligor, guarantor or otherwise; and (vi) all obligations of the type referredto in clauses (i) through (v) above of other Persons secured by any lien on anyproperty or asset of the Company (whether or not such obligation is assumed bythe Company), whether incurred on or prior to the date of this Indenture orthereafter incurred, unless, with the prior

 

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approval of the OTS if not otherwise generally approved, in the instrumentcreating 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 DebtSecurities.

 

“Special Event” means any of a Tax Event, an InvestmentCompany Event or a Capital Treatment Event.

 

“Special Redemption Date” has the meaning set forth inSection 10.02.

 

“Special Redemption Price” means (1) if the Special RedemptionDate is before January 7, 2008, thegreater of (a) 100% of the principal amount of the Debt Securities beingredeemed pursuant to Section 10.02 or (b) as determined by aQuotation Agent, the sum of the present values of the principal amount payableas part of the Redemption Price with respect to a redemption as of January7, 2008, together with the present value ofinterest payments calculated at a fixed per annum rate of interest equal to 7.125% over the Remaining Life of such DebtSecurities, discounted to the Special Redemption Date on a quarterly basis(assuming a 360-day year consisting of twelve 30-day months) at the TreasuryRate plus .50%, plus, in the case ofeither (a) or (b), accrued and unpaid interest on such Debt Securities to theSpecial Redemption Date and (2) if the Special Redemption Date is on orafter January 7, 2008, theRedemption Price for such Special Redemption Date.

 

“Subsidiary” means, with respect to any Person,(i) any corporation, at least a majority of the outstanding voting stockof which is owned, directly or indirectly, by such Person or by one or more ofits Subsidiaries, or by such Person and one or more of its Subsidiaries,(ii) any general partnership, joint venture or similar entity, at least amajority of the outstanding partnership or similar interests of which shall atthe time be owned by such Person, or by one or more of its Subsidiaries, or bysuch Person and one or more of its Subsidiaries, and (iii) any limitedpartnership of which such Person or any of its Subsidiaries is a generalpartner.  For the purposes of thisdefinition, “voting stock” means shares, interests, participations or otherequivalents in the equity interest (however designated) in such Person havingordinary voting power for the election of a majority of the directors (or theequivalent) of such Person, other than shares, interests, participations orother equivalents having such power only by reason of the occurrence of acontingency.

 

“Tax Event” means the receipt by the Company and theTrust 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 prospectivechange) in the laws or any regulations thereunder of the United States or anypolitical subdivision or taxing authority thereof or therein, or as a result ofany 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 suchlaws or regulations, regardless of whether such Administrative Action orjudicial decision is issued to or in connection with a proceeding involving theCompany or the Trust and whether or not subject to review or appeal, whichamendment, clarification, change, Administrative Action or decision is enacted,promulgated or announced, in each case on or after the date of originalissuance 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 suchopinion, subject to United States federal income tax with respect to incomereceived or accrued

 

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on the Debt Securities; (ii) interest payable by the Company onthe 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 Statesfederal income tax purposes; or (iii) the Trust is, or will be within90 days of the date of such opinion, subject to or otherwise required topay, or required to withhold from distributions to holders of Trust Securities,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 theheading which represents the average for the week immediately prior to the dateof calculation, appearing in the most recently published statistical releasedesignated H.15 (519) or any successor publication which is publishedweekly by the Federal Reserve and which establishes yields on actively tradedUnited States Treasury securities adjusted to constant maturity under thecaption “Treasury Constant Maturities,” for the maturity corresponding to theRemaining Life (if no maturity is within three months before or after theRemaining Life, yields for the two published maturities most closelycorresponding to the Remaining Life shall be determined and the Treasury Rateshall be interpolated or extrapolated from such yields on a straight-linebasis, rounding to the nearest month) or (ii) if such release (or anysuccessor release) is not published during the week preceding the calculationdate or does not contain such yields, the rate per annum equal to the quarterlyequivalent yield to maturity of the Comparable Treasury Issue, calculated usinga price for the Comparable Treasury Issue (expressed as a percentage of itsprincipal amount) equal to the Comparable Treasury Price for such SpecialRedemption Date.  The Treasury Rateshall be calculated on the third Business Day preceding the Special RedemptionDate.

 

“Trust” means HF Financial Capital Trust III, the Delaware statutorytrust, or any other similar trust created for the purpose of issuing CapitalSecurities in connection with the issuance of Debt Securities under thisIndenture, of which the Company is the sponsor.

 

“Trust Indenture Act” means the Trust Indenture Act of 1939, as amendedfrom time to time, or any successor legislation.

 

“Trust Securities” means Common Securities and Capital Securities of HFFinancial Capital Trust III.

 

“Trustee” means the Person identified as “Trustee” in the firstparagraph 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 ofColumbia.

 

“U.S. Person” has the meaning given to United States Person as setforth in Section 7701(a)(30) of the Internal Revenue Code of 1986, asamended.

 

8

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# ARTICLE IIDEBT SECURITIES

##  

## SECTION 2.01       Authentication and Dating.

##  

Upon the execution and delivery of this Indenture, or from time to timethereafter, Debt Securities in an aggregate principal amount not in excess of$5,155,000 may be executed and delivered by the Company to the Trustee forauthentication, and the Trustee shall thereupon authenticate and make availablefor 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 orChief Financial Officer or one of its Vice Presidents, without any furtheraction by the Company hereunder.  Inauthenticating such Debt Securities, and accepting the additionalresponsibilities under this Indenture in relation to such Debt Securities, theTrustee shall be entitled to receive, and (subject to Section 6.01) shallbe fully protected in relying upon a copy of any Board Resolution or BoardResolutions relating thereto and, if applicable, an appropriate record of anyaction taken pursuant to such resolution, in each case certified by theSecretary or an Assistant Secretary or other officers with appropriatedelegated authority of the Company as the case may be.

 

The Trustee shall have the right to decline toauthenticate and deliver any Debt Securities under this Section if the Trustee,being advised by counsel, determines that such action may not lawfully be takenor if a Responsible Officer of the Trustee in good faith shall determine thatsuch action would expose the Trustee to personal liability to existingSecurityholders.

 

The definitive Debt Securities shall be typed,printed, lithographed or engraved on steel engraved borders or may be producedin any other manner, all as determined by the officers executing such DebtSecurities, as evidenced by their execution of such Debt Securities.

 

## SECTION 2.02       Form of Trustee’s Certificate ofAuthentication.

 

The Trustee’s certificate of authentication on all Debt Securitiesshall be in substantially the following form:

 

This is one of the Debt Securities referred to in the within-mentionedIndenture.

 
|   | Wilmington Trust  Company,                             |
|--------|--------------------------------------------------------|
|   | not in its individual  capacity  but solely as trustee |
|   |                                                   |
|   |                                                   |
|   |                                                   |
|   |                                                   |
|   | By:                                                    |   |   |
|   | Authorized Officer                                     |
|        |                                                        |  |  |  |

 

## SECTION 2.03       Form and Denomination of DebtSecurities.

##  

The Debt Securities shall be substantially in the form of Exhibit Ahereto.  The Debt Securities shall be inregistered, certificated form without coupons and in minimum denominations of$100,000 and any multiple of $1,000 in excess thereof.  The Debt Securities

 

9

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shall be numbered, lettered, or otherwise distinguished in such manneror in accordance with such plans as the officers executing the same maydetermine with the approval of the Trustee as evidenced by the execution andauthentication thereof.

 

## SECTION 2.04       Execution of Debt Securities.

##  

The Debt Securities shall be signed in the name and on behalf of theCompany by the manual or facsimile signature of its Chairman of the Board ofDirectors, Vice Chairman, President or Chief Financial Officer or one of itsExecutive Vice Presidents, Senior Vice Presidents or Vice Presidents, under itscorporate seal which may be affixed thereto or printed, engraved or otherwisereproduced thereon, by facsimile or otherwise, and which need not be attested.  Only such Debt Securities as shall bearthereon a certificate of authentication substantially in the form herein beforerecited, executed by the Trustee or the Authenticating Agent by the manualsignature of an authorized officer, shall be entitled to the benefits of thisIndenture or be valid or obligatory for any purpose.  Such certificate by the Trustee or the Authenticating Agent uponany Debt Security executed by the Company shall be conclusive evidence that theDebt Security so authenticated has been duly authenticated and deliveredhereunder 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 theDebt Securities shall cease to be such officer before the Debt Securities sosigned shall have been authenticated and delivered by the Trustee or theAuthenticating Agent, or disposed of by the Company, such Debt Securitiesnevertheless may be authenticated and delivered or disposed of as though thePerson who signed such Debt Securities had not ceased to be such officer of theCompany; and any Debt Security may be signed on behalf of the Company by suchPersons as, at the actual date of the execution of such Debt Security, shall bethe proper officers of the Company, although at the date of the execution ofthis 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 Transferof Debt Securities.

##  

The Company shall cause to be kept, at the office or agency maintainedfor the purpose of registration of transfer and for exchange as provided inSection 3.02, a register (the “Debt Security Register”) for the DebtSecurities issued hereunder in which, subject to such reasonable regulations asit may prescribe, the Company shall provide for the registration and transferof all Debt Securities as provided in this Article II.  Such register shall be in written form or inany other form capable of being converted into written form within a reasonabletime.

 

Debt Securities to be exchanged may be surrendered at the PrincipalOffice of the Trustee or at any office or agency to be maintained by theCompany for such purpose as provided in Section 3.02, and the Companyshall execute, the Company or the Trustee shall register and the Trustee or theAuthenticating Agent shall authenticate and make available for delivery inexchange therefor the Debt Security or Debt Securities which the Securityholdermaking the exchange shall be entitled to receive.  Upon due presentment for registration of transfer of any DebtSecurity at the Principal Office of the Trustee or at any office or agency of

 

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the Company maintained for such purpose as provided inSection 3.02, the Company shall execute, the Company or the Trustee shallregister and the Trustee or the Authenticating Agent shall authenticate andmake available for delivery in the name of the transferee or transferees a newDebt Security for a like aggregate principal amount. Registration orregistration of transfer of any Debt Security by the Trustee or by any agent ofthe Company appointed pursuant to Section 3.02, and delivery of such DebtSecurity, shall be deemed to complete the registration or registration oftransfer of such Debt Security.

 

All Debt Securities presented for registration of transfer or forexchange or payment shall (if so required by the Company or the Trustee or theAuthenticating Agent) be duly endorsed by, or be accompanied by, a writteninstrument or instruments of transfer in form satisfactory to the Company andeither the Trustee or the Authenticating Agent duly executed by, the holder orsuch holder’s attorney duly authorized in writing.

 

No service charge shall be made for any exchange or registration oftransfer of Debt Securities, but the Company or the Trustee may require paymentof a sum sufficient to cover any tax, fee or other governmental charge that maybe imposed in connection therewith.

 

The Company or the Trustee shall not be required to exchange orregister a transfer of any Debt Security for a period of 15 daysimmediately preceding the date of selection of Debt Securities for redemption.

 

Notwithstanding the foregoing, Debt Securities may not be transferred exceptin compliance with the restricted securities legend set forth below, unlessotherwise determined by the Company in accordance with applicable law, whichlegend shall be placed on each Debt Security:

 

**THISSECURITY HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED(THE “SECURITIES ACT”), OR ANY STATE SECURITIES LAWS OR ANY OTHER APPLICABLESECURITIES LAWS.  NEITHER THIS SECURITYNOR ANY INTEREST OR PARTICIPATION HEREIN MAY BE REOFFERED, SOLD, ASSIGNED,TRANSFERRED, PLEDGED, ENCUMBERED OR OTHERWISE DISPOSED OF IN THE ABSENCE OFSUCH 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 TOOFFER, 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 “QUALIFIEDINSTITUTIONAL BUYER” AS DEFINED IN RULE 144A THAT PURCHASES FOR ITS OWNACCOUNT OR FOR THE ACCOUNT OF A QUALIFIED INSTITUTIONAL BUYER TO WHOM NOTICE ISGIVEN THAT THE TRANSFER IS BEING MADE IN RELIANCE ON RULE 144A,(C) PURSUANT TO AN EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THESECURITIES ACT TO AN “ACCREDITEDINVESTOR” WITHIN THE MEANING OF SUBPARAGRAPH (a) (1), (2), (3) OR (7) OFRULE 501 UNDER THE SECURITIES ACT THAT IS ACQUIRING THE SECURITY FOR ITSOWN ACCOUNT, OR FOR THE ACCOUNT OF AN**

 

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**“ACCREDITED INVESTOR,” FOR INVESTMENTPURPOSES AND NOT WITH A VIEW TO, OR FOR OFFER OR SALE IN CONNECTION WITH, ANYDISTRIBUTION IN VIOLATION OF THE SECURITIES ACT, OR (D) PURSUANT TOANOTHER AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THESECURITIES ACT, SUBJECT TO THE COMPANY’S RIGHT PRIOR TO ANY SUCH OFFER, SALE ORTRANSFER PURSUANT TO CLAUSES (C) OR (D) TO REQUIRE THE DELIVERY OF ANOPINION OF COUNSEL, CERTIFICATION AND/OR OTHER INFORMATION SATISFACTORY TO ITIN ACCORDANCE WITH THE INDENTURE, A COPY OF WHICH MAY BE OBTAINED FROM THECOMPANY.  THE HOLDER OF THIS SECURITY BYITS ACCEPTANCE HEREOF AGREES THAT IT WILL COMPLY WITH THE FOREGOINGRESTRICTIONS.**

 

**THEHOLDER OF THIS SECURITY BY ITS ACCEPTANCE HEREOF AGREES, REPRESENTS ANDWARRANTS THAT IT WILL NOT ENGAGE IN HEDGING TRANSACTIONS INVOLVING THISSECURITY UNLESS SUCH TRANSACTIONS ARE IN COMPLIANCE WITH THE SECURITIES ACT.**

 

**THEHOLDER OF THIS SECURITY BY ITS ACCEPTANCE HEREOF ALSO AGREES, REPRESENTS ANDWARRANTS THAT IT IS NOT AN EMPLOYEE BENEFIT, INDIVIDUAL RETIREMENT ACCOUNT OROTHER PLAN OR ARRANGEMENT SUBJECT TO TITLE I OF THE EMPLOYEE RETIREMENT INCOMESECURITY ACT OF 1974, AS AMENDED (“ERISA”), OR SECTION 4975 OF THEINTERNAL REVENUE CODE OF 1986, AS AMENDED (THE “CODE”), (EACH A “PLAN”), OR ANENTITY WHOSE UNDERLYING ASSETS INCLUDE “PLAN ASSETS” BY REASON OF ANY PLAN’SINVESTMENT IN THE ENTITY AND NO PERSON INVESTING “PLAN ASSETS” OF ANY PLAN MAYACQUIRE OR HOLD THIS SECURITY OR ANY INTEREST THEREIN, UNLESS SUCH PURCHASER ORHOLDER IS ELIGIBLE FOR THE EXEMPTIVE RELIEF AVAILABLE UNDERU.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 ANDHOLDING OF THIS SECURITY IS NOT PROHIBITED BY SECTION 406 OF ERISA ORSECTION 4975 OF THE CODE WITH RESPECT TO SUCH PURCHASE OR HOLDING.  ANY PURCHASER OR HOLDER OF THIS SECURITY ORANY INTEREST THEREIN WILL BE DEEMED TO HAVE REPRESENTED BY ITS PURCHASE ANDHOLDING THEREOF THAT EITHER (i) IT IS NOT AN EMPLOYEE BENEFIT PLAN WITHINTHE MEANING OF SECTION 3(3) OF ERISA, OR A PLAN TO WHICH SECTION 4975OF THE CODE IS APPLICABLE, A TRUSTEE OR OTHER PERSON ACTING ON BEHALF OF ANEMPLOYEE BENEFIT PLAN OR PLAN, OR ANY OTHER PERSON OR ENTITY USING THE ASSETSOF ANY EMPLOYEE BENEFIT PLAN OR PLAN TO FINANCE SUCH PURCHASE, OR(ii) SUCH PURCHASE WILL NOT RESULT IN A PROHIBITED TRANSACTION UNDERSECTION 406 OF ERISA OR SECTION 4975 OF THE CODE FOR WHICH THERE ISNO APPLICABLE STATUTORY OR ADMINISTRATIVE EXEMPTION.**

 

**INCONNECTION WITH ANY TRANSFER, THE HOLDER OF THIS SECURITY WILL DELIVER TO THEREGISTRAR AND TRANSFER AGENT SUCH**

 

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**CERTIFICATES AND OTHER INFORMATION ASMAY BE REQUIRED BY THE INDENTURE TO CONFIRM THAT THE TRANSFER COMPLIES WITH THEFOREGOING RESTRICTIONS.**

 

**THISSECURITY WILL BE ISSUED AND MAY BE TRANSFERRED ONLY IN BLOCKS HAVING APRINCIPAL AMOUNT OF NOT LESS THAN $100,000 AND MULTIPLES OF $1,000 IN EXCESSTHEREOF.  ANY ATTEMPTED TRANSFER OF THISSECURITY IN A BLOCK HAVING A PRINCIPAL AMOUNT OF LESS THAN $100,000 SHALL BEDEEMED TO BE VOID AND OF NO LEGAL EFFECT WHATSOEVER. ANY SUCH PURPORTEDTRANSFEREE SHALL BE DEEMED NOT TO BE THE HOLDER OF THIS SECURITY FOR ANYPURPOSE, INCLUDING, BUT NOT LIMITED TO, THE RECEIPT OF DISTRIBUTIONS ON THISSECURITY, AND SUCH PURPORTED TRANSFEREE SHALL BE DEEMED TO HAVE NO INTERESTWHATSOEVER IN THIS SECURITY.**

 

## SECTION 2.06       Mutilated, Destroyed, Lost or StolenDebt Securities.

##  

In case any Debt Security shall become mutilated or be destroyed, lostor stolen, the Company shall execute, and upon its written request the Trusteeshall authenticate and deliver, a new Debt Security bearing a number notcontemporaneously outstanding, in exchange and substitution for the mutilatedDebt Security, or in lieu of and in substitution for the Debt Security sodestroyed, lost or stolen.  In everycase the applicant for a substituted Debt Security shall furnish to the Companyand the Trustee such security or indemnity as may be required by them to saveeach of them harmless, and, in every case of destruction, loss or theft, theapplicant shall also furnish to the Company and the Trustee evidence to theirsatisfaction of the destruction, loss or theft of such Debt Security and of theownership thereof.

 

The Trustee may authenticate any such substituted Debt Security anddeliver the same upon the written request or authorization of any officer ofthe Company.  Upon the issuance of anysubstituted Debt Security, the Company may require the payment of a sumsufficient to cover any tax or other governmental charge that may be imposed inrelation thereto and any other expenses connected therewith.  In case any Debt Security which has maturedor is about to mature or has been called for redemption in full shall becomemutilated or be destroyed, lost or stolen, the Company may, instead of issuinga substitute Debt Security, pay or authorize the payment of the same (withoutsurrender thereof except in the case of a mutilated Debt Security) if theapplicant for such payment shall furnish to the Company and the Trustee suchsecurity or indemnity as may be required by them to save each of them harmlessand, in case of destruction, loss or theft, evidence satisfactory to theCompany and to the Trustee of the destruction, loss or theft of such Securityand of the ownership thereof.

 

Every substituted Debt Security issued pursuant to the provisions ofthis Section 2.06 by virtue of the fact that any such Debt Security isdestroyed, lost or stolen shall constitute an additional contractual obligationof the Company, whether or not the destroyed, lost or stolen Debt Securityshall be found at any time, and shall be entitled to all the benefits of thisIndenture equally and proportionately with any and all other Debt Securitiesduly issued hereunder.  All DebtSecurities shall be held and owned upon the express condition that, to theextent permitted by applicable law, the foregoing provisions are exclusive withrespect to the 

 

13

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replacement or payment of mutilated, destroyed, lost or stolen DebtSecurities and shall preclude any and all other rights or remediesnotwithstanding any law or statute existing or hereafter enacted to thecontrary with respect to the replacement or payment of negotiable instrumentsor other securities without their surrender.

 

## SECTION 2.07       Temporary Debt Securities.

##  

Pending the preparation of definitive Debt Securities, the Company mayexecute and the Trustee shall authenticate and make available for deliverytemporary Debt Securities that are typed, printed or lithographed. TemporaryDebt Securities shall be issuable in any authorized denomination, andsubstantially in the form of the definitive Debt Securities but with suchomissions, insertions and variations as may be appropriate for temporary DebtSecurities, all as may be determined by the Company.  Every such temporary Debt Security shall be executed by theCompany and be authenticated by the Trustee upon the same conditions and insubstantially the same manner, and with the same effect, as the definitive DebtSecurities.  Without unreasonable delay,the Company will execute and deliver to the Trustee or the Authenticating Agentdefinitive Debt Securities and thereupon any or all temporary Debt Securitiesmay be surrendered in exchange therefor, at the Principal Office of the Trusteeor at any office or agency maintained by the Company for such purpose asprovided in Section 3.02, and the Trustee or the Authenticating Agentshall authenticate and make available for delivery in exchange for suchtemporary Debt Securities a like aggregate principal amount of such definitiveDebt Securities.  Such exchange shall bemade by the Company at its own expense and without any charge therefor exceptthat in case of any such exchange involving a registration of transfer theCompany may require payment of a sum sufficient to cover any tax, fee or othergovernmental charge that may be imposed in relation thereto.  Until so exchanged, the temporary DebtSecurities shall in all respects be entitled to the same benefits under thisIndenture as definitive Debt Securities authenticated and delivered hereunder.

 

## SECTION 2.08       Payment of Interest.

##  

Each Debt Security will bear interest at the then applicable InterestRate from and including each Interest Payment Date or, in the case of the firstinterest period, the original date of issuance of such Debt Security to, butexcluding, the next succeeding Interest Payment Date or, in the case of thelast interest period, the Redemption Date, Special Redemption Date or MaturityDate, as applicable, on the principal thereof, on any overdue principal and (tothe extent that payment of such interest is enforceable under applicable law)on Deferred Interest and on any overdue installment of interest (includingDefaulted Interest), payable (subject to the provisions of Article XII) oneach Interest Payment Date commencing on April 7, 2003.  Interest and any Deferred Interest on anyDebt Security that is payable, and is punctually paid or duly provided for bythe Company, on any Interest Payment Date shall be paid to the Person in whosename said Debt Security (or one or more Predecessor Securities) is registeredat the close of business on the regular record date for such interestinstallment, except that interest and any Deferred Interest payable on theMaturity Date shall be paid to the Person to whom principal is paid.  In the event that any Debt Security orportion thereof is called for redemption and the redemption date is subsequentto a regular record date with respect to any Interest Payment Date and prior tosuch Interest Payment Date, interest on such Debt Security will be paid uponpresentation and surrender of such Debt Security.

 

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Any interest on any Debt Security, other than Deferred Interest, thatis payable, but is not punctually paid or duly provided for by the Company, onany Interest Payment Date (herein called “Defaulted Interest”) shall forthwithcease to be payable to the registered holder on the relevant regular recorddate by virtue of having been such holder, and such Defaulted Interest shall bepaid by the Company to the Persons in whose names such Debt Securities (ortheir respective Predecessor Securities) are registered at the close ofbusiness 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 ofDefaulted Interest proposed to be paid on each such Debt Security and the dateof the proposed payment, and at the same time the Company shall deposit withthe Trustee an amount of money equal to the aggregate amount proposed to bepaid in respect of such Defaulted Interest or shall make arrangementsreasonably satisfactory to the Trustee for such deposit prior to the date ofthe proposed payment, such money when deposited to be held in trust for thebenefit of the Persons entitled to such Defaulted Interest as in this clauseprovided.  Thereupon the Trustee shall fixa special record date for the payment of such Defaulted Interest which shallnot be more than fifteen nor less than ten days prior to the date of theproposed payment and not less than ten days after the receipt by theTrustee of the notice of the proposed payment. The Trustee shall promptly notify the Company of such special recorddate and, in the name and at the expense of the Company, shall cause notice ofthe proposed payment of such Defaulted Interest and the special record datetherefor to be mailed, first class postage prepaid, to each Securityholder athis or her address as it appears in the Debt Security Register, not less thanten days prior to such special record date.  Notice of the proposed payment of such Defaulted Interest and thespecial record date therefor having been mailed as aforesaid, such DefaultedInterest shall be paid to the Persons in whose names such Debt Securities (ortheir respective Predecessor Securities) are registered on such special recorddate and thereafter the Company shall have no further payment obligation inrespect of the Defaulted Interest.

 

Any interest scheduled to become payable on an Interest Payment Dateoccurring during an Extension Period shall not be Defaulted Interest and shallbe payable on such other date as may be specified in the terms of such DebtSecurities.

 

The term “regular record date” as used in this Section shall mean thefifteenth day prior to an Interest Payment Date whether or not such dateis a Business Day.

 

Subject to the foregoing provisions of this Section, each Debt Securitydelivered under this Indenture upon registration of transfer of or in exchangefor or in lieu of any other Debt Security shall carry the rights to interestaccrued and unpaid, and to accrue, that were carried by such other DebtSecurity.

 

## 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 orany Paying Agent, be surrendered to the Trustee and promptly canceled by it,or, if surrendered to the Trustee or any Authenticating Agent, shall bepromptly canceled by it, and no Debt Securities shall be issued in lieu thereofexcept as expressly permitted by any of the provisions of this Indenture.  All Debt Securities canceled by anyAuthenticating Agent shall be delivered to the Trustee.  The

 

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Trustee shall destroy all canceled Debt Securities unless the Companyotherwise directs the Trustee in writing, in which case the Trustee shalldispose of such Debt Securities as directed by the Company.  If the Company shall acquire any of the DebtSecurities, however, such acquisition shall not operate as a redemption orsatisfaction of the indebtedness represented by such Debt Securities unless anduntil the same are surrendered to the Trustee for cancellation.

 

## SECTION 2.10       Computation of Interest.

##  

### (a)           Theamount of interest payable for any interest period will be computed on the basisof a 360-day year and the actual number of days elapsed in the relevantinterest period; provided, however, that upon the occurrence of aSpecial Event Redemption pursuant to Section 10.02 the amounts payablepursuant to this Indenture shall be calculated as set forth in the definitionof Special Redemption Price.

###  

### (b)           LIBORshall be determined by the Calculation Agent in accordance with the followingprovisions:

####  

#### (i)            On the second LIBOR Business Day (provided, thaton such day commercial banks are open for business (including dealings inforeign currency deposits) in London (a “LIBOR Banking Day”), and otherwise thenext preceding LIBOR Business Day that is also a LIBOR Banking Day) prior toJanuary 15, April 15, July 15 and October 15 (except, with respect to the firstinterest payment period, on December 17, 2002), (each such day, a “LIBORDetermination Date”), LIBOR shall equal the rate, as obtained by theCalculation Agent for three-month U.S. Dollar deposits in Europe, which appearson Telerate Page 3750 (as defined in the International Swaps and DerivativesAssociation, Inc. 1991 Interest Rate and Currency Exchange Definitions) or suchother page as may replace such  TeleratePage 3750, as of 11:00 a.m. (London time) on such LIBOR Determination Date, asreported by Bloomberg Financial Markets Commodities News.  “LIBOR Business Day” means any day that isnot a Saturday, Sunday or other day on which commercial banking institutions inNew York, New York or Wilmington, Delaware are authorized or obligated by lawor executive order to be closed.  Ifsuch rate is superseded on Telerate Page 3750 by a corrected rate before 12:00noon (London time) on the same LIBOR Determination Date, the corrected rate asso substituted will be the applicable LIBOR for that LIBOR Determination Date.

####  

#### (ii)           If, on anyLIBOR Determination Date, such rate does not appear on Telerate Page 3750as reported by Bloomberg Financial Markets Commodities News or such other pageas may replace such Telerate Page 3750, the Calculation Agent shalldetermine the arithmetic mean of the offered quotations of the Reference Banks(as defined below) to leading banks in the London interbank market forthree-month U.S. Dollar deposits in Europe (in an amount determined by theCalculation Agent) by reference to requests for quotations as of approximately11:00 a.m. (London time) on the LIBOR Determination Date made by theCalculation Agent to the Reference Banks. If, on any LIBOR Determination Date, at least two of the Reference Banksprovide such quotations, LIBOR shall equal the arithmetic mean of suchquotations.  If, on any LIBORDetermination Date, only one or none of the Reference Banks provide such aquotation, LIBOR shall be deemed to be the arithmetic mean of the offeredquotations that at least

####  

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two leading banks in the City of New York (as selectedby the Calculation Agent) are quoting on the relevant LIBOR Determination Datefor three-month U.S. Dollar deposits in Europe at approximately11:00 a.m. (London time) (in an amount determined by the CalculationAgent). As used herein, “Reference Banks” means four major banks in the Londoninterbank market selected by the Calculation Agent.

####  

#### (iii)          If theCalculation Agent is required but is unable to determine a rate in accordancewith at least one of the procedures provided above, LIBOR shall be LIBOR ineffect on the previous LIBOR Determination Date (whether or not LIBOR for suchperiod was in fact determined on such LIBOR Determination Date).

####  

### (c)           Allpercentages resulting from any calculations on the Debt Securities will berounded, if necessary, to the nearest one hundred-thousandth of a percentagepoint, with five one-millionths of a percentage point rounded upward (e.g.,9.876545% (or .09876545) being rounded to 9.87655% (or .0987655)), and alldollar amounts used in or resulting from such calculation will be rounded tothe nearest cent (with one-half cent being rounded upward).

###  

### (d)           Oneach LIBOR Determination Date, the Calculation Agent shall notify, in writing,the Company and the Paying Agent of the applicable Interest Rate in effect forthe related Interest Payment Date.  TheCalculation 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 ofmanifest error shall be conclusive for all purposes and binding on the Companyand the Holders of the Debt Securities. The Paying Agent shall be entitled to rely on information received fromthe 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 originalissue discount and interest on the Debt Securities that is included in anypayment 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, theCompany shall have the right, from time to time and without causing an Event ofDefault, to defer payments of interest on the Debt Securities by extending theinterest payment period on the Debt Securities, at any time and from time totime during the term of the Debt Securities, for up to twenty consecutive quarterlyperiods (each such extended interest payment period, an “Extension Period”),during which Extension Period no interest shall be due and payable (except anyAdditional Interest that may be due and payable).  No Extension Period may end on a date other than an InterestPayment Date.  During any ExtensionPeriod, interest will continue to accrue on the Debt Securities, and intereston such accrued interest (such accrued interest and interest thereon referredto herein as “Deferred Interest”) will accrue at an annual rate equal to theInterest Rate in effect for such Extension Period, compounded quarterly fromthe date such Deferred Interest would have been payable were it not for theExtension Period, to the extent permitted by law.  No interest or Deferred Interest shall be due and payable duringan Extension Period, except at the end thereof.  At the end of any such Extension Period the Company shall pay allDeferred Interest then accrued and unpaid on the Debt Securities; provided,however, that no Extension Period may extend beyond the Maturity Date; and providedfurther, however, that during any such Extension Period, theCompany shall be subject to the restrictions set forth in 

 

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Section 3.08 of this Indenture. Prior to the termination of any Extension Period, the Company mayfurther extend such period, provided, that such period togetherwith all such previous and further consecutive extensions thereof shall notexceed twenty consecutive quarterly periods, or extend beyond the MaturityDate.  Upon the termination of anyExtension Period and upon the payment of all Deferred Interest, the Company maycommence a new Extension Period, subject to the foregoing requirements.  The Company must give the Trustee notice ofits election to begin such Extension Period at least one Business Day prior tothe earlier of (i) the next succeeding date on which interest on the DebtSecurities would have been payable except for the election to begin suchExtension Period or (ii) the date such interest is payable, but in anyevent not later than the related regular record date.  The Trustee shall give notice of the Company’s election to begina new Extension Period to the Securityholders.

 

## SECTION 2.12       CUSIP Numbers.

##  

The Company in issuing the Debt Securities may use a “CUSIP” number (ifthen generally in use), and, if so, the Trustee shall use a “CUSIP” number innotices of redemption as a convenience to Securityholders; provided, thatany such notice may state that no representation is made as to the correctnessof such number either as printed on the Debt Securities or as contained in anynotice of a redemption and that reliance may be placed only on the otheridentification numbers printed on the Debt Securities, and any such redemptionshall not be affected by any defect in or omission of such numbers.  The Company will promptly notify the Trusteein writing of any change in the CUSIP number.

 

# ARTICLE IIIPARTICULAR COVENANTS OF THE COMPANY

#  

## SECTION 3.01       Payment of Principal, Premium andInterest; Agreed Treatment of the Debt Securities.

##  

### (a)           TheCompany covenants and agrees that it will duly and punctually pay or cause tobe paid all payments due on the Debt Securities at the place, at the respectivetimes and in the manner provided in this Indenture and the DebtSecurities.  At the option of theCompany, each installment of interest on the Debt Securities may be paid(i) by mailing checks for such interest payable to the order of theholders of Debt Securities entitled thereto as they appear on the Debt SecurityRegister or (ii) by wire transfer to any account with a bankinginstitution located in the United States designated by such Person to thePaying Agent no later than the related record date.

###  

### (b)           TheCompany will treat the Debt Securities as indebtedness, and the interestpayable in respect of such Debt Securities as interest, for allU.S. federal income tax purposes. All payments in respect of such Debt Securities will be made free andclear of U.S. withholding tax to any beneficial owner thereof that hasprovided an Internal Revenue Service Form W-8 BEN (or any substitute orsuccessor form) establishing its non-U.S. status for U.S. federal incometax purposes.

###  

18

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### (c)           Asof the date of this Indenture, the Company has no intention to exercise itsright under Section 2.11 to defer payments of interest on the DebtSecurities by commencing an Extension Period.

###  

### (d)           Asof the date of this Indenture, the Company believes that the likelihood that itwould exercise its right under Section 2.11 to defer payments of intereston the Debt Securities by commencing an Extension Period at any time duringwhich the Debt Securities are outstanding is remote because of the restrictionsthat would be imposed on the Company’s ability to declare or pay dividends ordistributions on, or to redeem, purchase or make a liquidation payment withrespect to, any of its outstanding equity and on the Company’s ability to makeany payments of principal of or interest on, or repurchase or redeem, any ofits debt securities that rank *pari passu* in all respects with (or juniorin 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 Companywill maintain in Wilmington, Delaware or in Sioux Falls, South Dakota an officeor agency where the Debt Securities may be presented for payment, an office oragency where the Debt Securities may be presented for registration of transferand for exchange as provided in this Indenture and an office or agency wherenotices and demands to or upon the Company in respect of the Debt Securities orof this Indenture may be served.  TheCompany will give to the Trustee written notice of the location of any suchoffice or agency and of any change of location thereof.  Until otherwise designated from time to timeby the Company in a notice to the Trustee, or specified as contemplated bySection 2.05, such office or agency for all of the above purposes shall bethe Principal Office of the Trustee.  Incase the Company shall fail to maintain any such office or agency inWilmington, Delaware or in Sioux Falls, South Dakota, or shall fail to give suchnotice of the location or of any change in the location thereof, presentationsand demands may be made and notices may be served at the Principal Office ofthe Trustee.

 

In addition to any such office or agency, the Company may from time totime designate one or more offices or agencies outside Wilmington, Delaware orSioux Falls, South Dakota where the Debt Securities may be presented forregistration of transfer and for exchange in the manner provided in thisIndenture, and the Company may from time to time rescind such designation, asthe Company may deem desirable or expedient; provided, however,that no such designation or rescission shall in any manner relieve the Companyof its obligation to maintain any such office or agency in Wilmington, Delawareor in Sioux Falls, South Dakotafor the purposes above mentioned.  The Company will give to the Trustee promptwritten notice of any such designation or rescission thereof.

 

## SECTION 3.03       Appointments to Fill Vacancies inTrustee’s Office.

##  

The Company, whenever necessary to avoid or fill a vacancy in theoffice of Trustee, will appoint, in the manner provided in Section 6.09, aTrustee, so that there shall at all times be a Trustee hereunder.

 

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## SECTION 3.04       Provision as to Paying Agent.

##  

### (a)           Ifthe Company shall appoint a Paying Agent other than the Trustee, it will causesuch Paying Agent to execute and deliver to the Trustee an instrument in whichsuch agent shall agree with the Trustee, subject to the provision of thisSection 3.04,

###  

#### (i)            that it willhold all sums held by it as such agent for the payment of all payments due onthe Debt Securities (whether such sums have been paid to it by the Company orby any other obligor on the Debt Securities) in trust for the benefit of theholders of the Debt Securities;

####  

#### (ii)           that it willgive the Trustee prompt written notice of any failure by the Company (or by anyother obligor on the Debt Securities) to make any payment on the DebtSecurities when the same shall be due and payable; and

####  

#### (iii)          that itwill, at any time during the continuance of any Event of Default, upon thewritten request of the Trustee, forthwith pay to the Trustee all sums so heldin trust by such Paying Agent.

####  

### (b)           Ifthe Company shall act as its own Paying Agent, it will, on or before each duedate of the payments due on the Debt Securities, set aside, segregate and holdin trust for the benefit of the holders of the Debt Securities a sum sufficientto pay such payments so becoming due and will notify the Trustee in writing ofany failure to take such action and of any failure by the Company (or by anyother obligor under the Debt Securities) to make any payment on the DebtSecurities when the same shall become due and payable.

###  

Whenever the Company shall have one or more Paying Agents for the DebtSecurities, it will, on or prior to each due date of the payments on the DebtSecurities, deposit with a Paying Agent a sum sufficient to pay all payments sobecoming due, such sum to be held in trust for the benefit of the Persons entitledthereto and (unless such Paying Agent is the Trustee) the Company shallpromptly notify the Trustee in writing of its action or failure to act.

 

### (c)           Anythingin this Section 3.04 to the contrary notwithstanding, the Company may, atany time, for the purpose of obtaining a satisfaction and discharge withrespect to the Debt Securities, or for any other reason, pay, or direct anyPaying Agent to pay to the Trustee all sums held in trust by the Company or anysuch Paying Agent, such sums to be held by the Trustee upon the same terms andconditions herein contained.

###  

### (d)           Anythingin this Section 3.04 to the contrary notwithstanding, the agreement tohold sums in trust as provided in this Section 3.04 is subject toSections 12.03 and 12.04.

###  

### (e)           TheCompany hereby initially appoints the Trustee to act as Paying Agent (the“Paying Agent”).

###  

20

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## SECTION 3.05       Certificate to Trustee.

##  

The Company will deliver to the Trustee on or before 120 daysafter the end of each fiscal year, so long as Debt Securities are outstandinghereunder, a Certificate stating that in the course of the performance by thesigners of their duties as officers of the Company they would normally haveknowledge of any default by the Company in the performance of any covenants ofthe Company contained herein, stating whether or not they have knowledge of anysuch default and, if so, specifying each such default of which the signers haveknowledge and the nature thereof.

 

## SECTION 3.06       Additional Interest.

##  

If and for so long as the Trust is the holder of all Debt Securitiesand is subject to or otherwise required to pay, or is required to withhold fromdistributions to holders of Trust Securities, any additional taxes (includingwithholding taxes), duties, assessments or other governmental charges as aresult of a Tax Event, the Company will pay such additional amounts (the“Additional Interest”) on the Debt Securities as shall be required so that thenet amounts received and retained by the Trust for distribution to holders ofTrust Securities after paying all taxes (including withholding taxes ondistributions to holders of Trust Securities), duties, assessments or othergovernmental charges will be equal to the amounts the Trust would have receivedand retained for distribution to holders of Trust Securities after paying alltaxes (including withholding taxes on distributions to holders of TrustSecurities), duties, assessments or other governmental charges if no suchadditional taxes, duties, assessments or other governmental charges had beenimposed.  Whenever in this Indenture orthe Debt Securities there is a reference in any context to the payment ofprincipal of or interest on the Debt Securities, such mention shall be deemedto include mention of payments of the Additional Interest provided for in thisparagraph to the extent that, in such context, Additional Interest is, was orwould be payable in respect thereof pursuant to the provisions of thisparagraph and express mention of the payment of Additional Interest (ifapplicable) in any provisions hereof shall not be construed as excludingAdditional Interest in those provisions hereof where such express mention isnot made, provided, however, that the deferral of the payment ofinterest during an Extension Period pursuant to Section 2.11 shall notdefer the payment of any Additional Interest that may be due and payable.

 

## SECTION 3.07       Compliance with ConsolidationProvisions.

##  

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 sellor convey all or substantially all of its property to any other Person unlessthe 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 ofsuch 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

 

21

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obligations under the Capital Securities Guarantee or (iii) theCompany shall have given notice of its election to defer payments of intereston the Debt Securities by extending the interest payment period as providedherein and such period, or any extension thereof, shall have commenced and becontinuing, then the Company may not (A) declare or pay any dividends ordistributions on, or redeem, purchase, acquire, or make a liquidation paymentwith respect to, any of the Company’s capital stock or (B) make anypayment of principal of or interest or premium, if any, on or repay, repurchaseor redeem any debt securities of the Company that rank *pari passu* in**allrespects with or junior in interest to the Debt Securities (other than(a) repurchases, redemptions or other acquisitions of shares of capitalstock of the Company (I) in connection with any employment contract,benefit plan or other similar arrangement with or for the benefit of one ormore employees, officers, directors or consultants, (II) in connectionwith a dividend reinvestment or stockholder stock purchase plan or(III) in connection with the issuance of capital stock of the Company (orsecurities convertible into or exercisable for such capital stock), asconsideration in an acquisition transaction entered into prior to theoccurrence of (i), (ii) or (iii) above, (b) as a result of any exchange orconversion of any class or series of the Company’s capital stock (or anycapital stock of a subsidiary of the Company) for any class or series of theCompany’s capital stock or of any class or series of the Company’s indebtednessfor any class or series of the Company’s capital stock, (c) the purchaseof fractional interests in shares of the Company’s capital stock pursuant tothe conversion or exchange provisions of such capital stock or the securitybeing converted or exchanged, (d) any declaration of a dividend inconnection with any stockholder’s rights plan, or the issuance of rights, stockor other property under any stockholder’s rights plan, or the redemption orrepurchase of rights pursuant thereto, or (e) any dividend in the form ofstock, warrants, options or other rights where the dividend stock or the stockissuable upon exercise of such warrants, options or other rights is the samestock as that on which the dividend is being paid or ranks *pari passu* with or junior tosuch stock).

 

## SECTION 3.09       Covenants as to the Trust.

##  

For so long as such Trust Securities remain outstanding, the Companyshall maintain 100% ownership of the Common Securities; provided, however,that any permitted successor of the Company under this Indenture that is aU.S. Person may succeed to the Company’s ownership of such CommonSecurities.  The Company, as owner ofthe Common Securities, shall use commercially reasonable efforts to cause theTrust (a) to remain a statutory trust, except in connection with a distributionof Debt Securities to the holders of Trust Securities in liquidation of theTrust, 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 UnitedStates federal income tax purposes and (c) to cause each holder of TrustSecurities to be treated as owning an undivided beneficial interest in the DebtSecurities.

 

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# ARTICLE IVLISTS AND REPORTS

##  

## SECTION 4.01       Securityholders’ Lists.

##  

The Company covenants and agrees that it will furnishor cause to be furnished to the Trustee:

 

### (a)           oneach regular record date for an Interest Payment Date, a list, in such form asthe Trustee may reasonably require, of the names and addresses of theSecurityholders of the Debt Securities as of such record date; and

###  

### (b)           atsuch other times as the Trustee may request in writing, within 30 daysafter the receipt by the Company of any such request, a list of similar formand content as of a date not more than 15 days prior to the time such listis furnished;

###  

except that no such lists need be furnished under thisSection 4.01 so long as the Trustee is in possession thereof by reason ofits acting as Debt Security registrar.

 

## SECTION 4.02       Preservation and Disclosure of Lists.

##  

### (a)           TheTrustee shall preserve, in as current a form as is reasonably practicable, allinformation as to the names and addresses of the holders of Debt Securities(1) contained in the most recent list furnished to it as provided inSection 4.01 or (2) received by it in the capacity of Debt Securitiesregistrar (if so acting) hereunder.  TheTrustee may destroy any list furnished to it as provided in Section 4.01 uponreceipt of a new list so furnished.

###  

### (b)           Incase three or more holders of Debt Securities (hereinafter referred to as“applicants”) apply in writing to the Trustee and furnish to the Trusteereasonable proof that each such applicant has owned a Debt Security for aperiod of at least six months preceding the date of such application, and suchapplication states that the applicants desire to communicate with other holdersof Debt Securities with respect to their rights under this Indenture or undersuch Debt Securities and is accompanied by a copy of the form of proxy or othercommunication which such applicants propose to transmit, then the Trustee shallwithin five Business Days after the receipt of such application, at itselection, either:

###  

#### (i)            afford suchapplicants access to the information preserved at the time by the Trustee inaccordance with the provisions of subsection (a) of thisSection 4.02, or

####  

#### (ii)           inform suchapplicants as to the approximate number of holders of Debt Securities whosenames and addresses appear in the information preserved at the time by theTrustee in accordance with the provisions of subsection (a) of thisSection 4.02, and as to the approximate cost of mailing to suchSecurityholders the form of proxy or other communication, if any, specified insuch application.

####  

If the Trustee shall elect not to afford such applicants access to suchinformation, the Trustee shall, upon the written request of such applicants,mail to each Securityholder of

 

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Debt Securities whose name and address appear in the informationpreserved at the time by the Trustee in accordance with the provisions ofsubsection (a) of this Section 4.02 a copy of the form of proxy orother communication which is specified in such request with reasonablepromptness after a tender to the Trustee of the material to be mailed and ofpayment, or provision for the payment, of the reasonable expenses of mailing,unless within five days after such tender, the Trustee shall mail to suchapplicants and file with the Securities and Exchange Commission, if permittedor required by applicable law, together with a copy of the material to bemailed, 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 DebtSecurities, as the case may be, or would be in violation of applicablelaw.  Such written statement shallspecify the basis of such opinion.  Ifsaid Commission, as permitted or required by applicable law, after opportunityfor 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, afterthe entry of an order sustaining one or more of such objections, saidCommission shall find, after notice and opportunity for hearing, that all theobjections so sustained have been met and shall enter an order so declaring,the Trustee shall mail copies of such material to all such Securityholders withreasonable promptness after the entry of such order and the renewal of suchtender; otherwise the Trustee shall be relieved of any obligation or duty tosuch applicants respecting their application.

 

### (c)           Eachand every holder of Debt Securities, by receiving and holding the same, agreeswith the Company and the Trustee that neither the Company nor the Trustee norany Paying Agent shall be held accountable by reason of the disclosure of anysuch information as to the names and addresses of the holders of Debt Securitiesin accordance with the provisions of subsection (b) of thisSection 4.02, regardless of the source from which such information wasderived, and that the Trustee shall not be held accountable by reason ofmailing any material pursuant to a request made under said subsection (b).

###  

# ARTICLE VREMEDIES OF THE TRUSTEE AND SECURITYHOLDERS

#  

## SECTION 5.01       Events of Default.

##  

The following events shall be “Events of Default” withrespect to Debt Securities:

 

### (a)           theCompany defaults in the payment of any interest upon any Debt Security when itbecomes due and payable, and continuance of such default for a period of30 days; for the avoidance of doubt, an extension of any interest paymentperiod by the Company in accordance with Section 2.11 of this Indentureshall not constitute a default under this clause 5.01(a); or

###  

### (b)           theCompany defaults in the payment of all or any part of the principal of (orpremium, if any, on) any Debt Securities as and when the same shall become dueand payable either at maturity, upon redemption, by declaration of accelerationpursuant to Section 5.01 of this Indenture or otherwise; or

###  

### (c)           theCompany defaults in the performance of, or breaches, any of its covenants oragreements in Sections 3.06, 3.07, 3.08 or 3.09 of this Indenture (otherthan a

###  

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covenant or agreement a default in whose performance or whose breach iselsewhere in this Section specifically dealt with), and continuance of suchdefault or breach for a period of 90 days after there has been given, byregistered or certified mail, to the Company by the Trustee or to the Companyand the Trustee by the holders of not less than 25% in aggregate principalamount of the outstanding Debt Securities, a written notice specifying such defaultor breach and requiring it to be remedied and stating that such notice is a“Notice of Default” hereunder; or

###  

### (d)           acourt having jurisdiction in the premises shall enter a decree or order forrelief in respect of the Company in an involuntary case under any applicablebankruptcy, insolvency or other similar law now or hereafter in effect, orappoints a receiver, liquidator, assignee, custodian, trustee, sequestrator (orsimilar official) of the Company or for any substantial part of its property, ororders the winding-up or liquidation of its affairs and such decree or ordershall remain unstayed and in effect for a period of 90 consecutive days; or

###  

### (e)           theCompany shall commence a voluntary case under any applicable bankruptcy,insolvency or other similar law now or hereafter in effect, shall consent tothe entry of an order for relief in an involuntary case under any such law, orshall consent to the appointment of or taking possession by a receiver,liquidator, assignee, trustee, custodian, sequestrator (or other similarofficial) of the Company or of any substantial part of its property, or shallmake any general assignment for the benefit of creditors, or shall failgenerally to pay its debts as they become due; or

###  

### (f)            theTrust shall have voluntarily or involuntarily liquidated, dissolved, wound-upits business or otherwise terminated its existence except in connection with(1) the distribution of the Debt Securities to holders of the TrustSecurities in liquidation of their interests in the Trust, (2) theredemption of all of the outstanding Trust Securities or (3) certainmergers, consolidations or amalgamations, each as permitted by the Declaration.

###  

If an Event of Default occurs and is continuing with respect to theDebt Securities, then, and in each and every such case, unless the principal ofthe Debt Securities shall have already become due and payable, either theTrustee or the holders of not less than 25% in aggregate principal amount ofthe Debt Securities then outstanding hereunder, by notice in writing to theCompany (and to the Trustee if given by Securityholders), may declare theentire principal of the Debt Securities and the interest accrued, but unpaid,thereon, if any, to be due and payable immediately, and upon any such declarationthe same shall become immediately due and payable.

 

The foregoing provisions, however, are subject to the condition thatif, at any time after the principal of the Debt Securities shall have been sodeclared due and payable, and before any judgment or decree for the payment ofthe moneys due shall have been obtained or entered as hereinafter provided,(i) the Company shall pay or shall deposit with the Trustee a sumsufficient to pay all matured installments of interest upon all the DebtSecurities and all payments on the Debt Securities which shall have become dueotherwise than by acceleration (with interest upon all such payments andDeferred Interest, to the extent permitted by law) and such amount as shall besufficient to cover reasonable compensation to the Trustee and each predecessorTrustee, their respective agents, attorneys and counsel, and all other amountsdue to the Trustee pursuant to Section 6.06, if any, and (ii) allEvents of Default under this Indenture, 

 

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other than the non-payment of the payments on Debt Securities whichshall have become due by acceleration, shall have been cured, waived orotherwise remedied as provided herein, then and in every such case the holdersof a majority in aggregate principal amount of the Debt Securities thenoutstanding, by written notice to the Company and to the Trustee, may waive alldefaults and rescind and annul such declaration and its consequences, but nosuch waiver or rescission and annulment shall extend to or shall affect anysubsequent default or shall impair any right consequent thereon.

 

In case the Trustee shall have proceeded to enforce any right underthis Indenture and such proceedings shall have been discontinued or abandonedbecause of such rescission or annulment or for any other reason or shall havebeen determined adversely to the Trustee, then and in every such case theCompany, the Trustee and the holders of the Debt Securities shall be restoredrespectively to their several positions and rights hereunder, and all rights,remedies and powers of the Company, the Trustee and the holders of the DebtSecurities shall continue as though no such proceeding had been taken.

 

## SECTION 5.02       Payment of Debt Securities on Default;Suit Therefor.

##  

The Company covenants that upon the occurrence of an Event of Defaultpursuant to clause 5.01(a) or 5.01(b) and upon demand of the Trustee, theCompany will pay to the Trustee, for the benefit of the holders of the DebtSecurities, the whole amount that then shall have become due and payable on allDebt Securities including Deferred Interest accrued on the Debt Securities;and, in addition thereto, such further amount as shall be sufficient to coverthe costs and expenses of collection, including a reasonable compensation tothe Trustee, its agents, attorneys and counsel, and any other amounts due tothe Trustee under Section 6.06.  Incase the Company shall fail forthwith to pay such amounts upon such demand, theTrustee, in its own name and as trustee of an express trust, shall be entitledand empowered to institute any actions or proceedings at law or in equity forthe collection of the sums so due and unpaid, and may prosecute any such actionor proceeding to judgment or final decree, and may enforce any such judgment orfinal decree against the Company or any other obligor on such Debt Securitiesand collect in the manner provided by law out of the property of the Company orany other obligor on such Debt Securities wherever situated the moneys adjudgedor decreed to be payable.

 

In case there shall be pending proceedings for the bankruptcy or forthe reorganization of the Company or any other obligor on the Debt Securitiesunder Bankruptcy Law, or in case a receiver or trustee shall have been appointedfor the property of the Company or such other obligor, or in the case of anyother similar judicial proceedings relative to the Company or other obligorupon the Debt Securities, or to the creditors or property of the Company orsuch other obligor, the Trustee, irrespective of whether the principal of theDebt Securities shall then be due and payable as therein expressed or bydeclaration of acceleration or otherwise and irrespective of whether theTrustee shall have made any demand pursuant to the provisions of thisSection 5.02, shall be entitled and empowered, by intervention in suchproceedings or otherwise, to file and prove a claim or claims for the wholeamount of principal and interest owing and unpaid in respect of the DebtSecurities and, in case of any judicial proceedings, to file such proofs ofclaim and other papers or documents as may be necessary or advisable in orderto have the claims of the Trustee (including any claim for reasonablecompensation to the Trustee and each predecessor Trustee, and their respectiveagents, attorneys

 

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and counsel, and for reimbursement of all other amounts due to theTrustee under Section 6.06) and of the Securityholders allowed in suchjudicial proceedings relative to the Company or any other obligor on the DebtSecurities, or to the creditors or property of the Company or such otherobligor, unless prohibited by applicable law and regulations, to vote on behalfof the holders of the Debt Securities in any election of a trustee or a standbytrustee in arrangement, reorganization, liquidation or other bankruptcy orinsolvency proceedings or Person performing similar functions in comparableproceedings, and to collect and receive any moneys or other property payable ordeliverable on any such claims, and to distribute the same after the deductionof its charges and expenses; and any receiver, assignee or trustee inbankruptcy or reorganization is hereby authorized by each of theSecurityholders to make such payments to the Trustee, and, in the event thatthe Trustee shall consent to the making of such payments directly to theSecurityholders, to pay to the Trustee such amounts as shall be sufficient tocover reasonable compensation to the Trustee, each predecessor Trustee andtheir respective agents, attorneys and counsel, and all other amounts due tothe Trustee under Section 6.06.

 

Nothing herein contained shall be construed to authorize the Trustee toauthorize or consent to or accept or adopt on behalf of any Securityholder anyplan of reorganization, arrangement, adjustment or composition affecting theDebt Securities or the rights of any holder thereof or to authorize the Trusteeto vote in respect of the claim of any Securityholder in any such proceeding.

 

All rights of action and of asserting claims under this Indenture, orunder any of the Debt Securities, may be enforced by the Trustee without thepossession of any of the Debt Securities, or the production thereof at anytrial or other proceeding relative thereto, and any such suit or proceedinginstituted by the Trustee shall be brought in its own name as trustee of anexpress trust, and any recovery of judgment shall be for the ratable benefit ofthe holders of the Debt Securities.

 

In any proceedings brought by the Trustee (and also any proceedingsinvolving the interpretation of any provision of this Indenture to which theTrustee shall be a party) the Trustee shall be held to represent all theholders of the Debt Securities, and it shall not be necessary to make anyholders of the Debt Securities parties to any such proceedings.

 

## SECTION 5.03       Application of Moneys Collected byTrustee.

##  

Any moneys collected by the Trustee shall be applied in the followingorder, at the date or dates fixed by the Trustee for the distribution of suchmoneys, upon presentation of the several Debt Securities in respect of whichmoneys have been collected, and stamping thereon the payment, if only partiallypaid, and upon surrender thereof if fully paid:

 

First: To the payment of costs and expenses incurred by, and reasonablefees of, the Trustee, its agents, attorneys and counsel, and of all otheramounts due to the Trustee under Section 6.06;

 

Second: To the payment of all Senior Indebtedness of the Company if andto the extent required by Article XV;

 

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Third:  To the payment of theamounts then due and unpaid upon Debt Securities, in respect of which or forthe benefit of which money has been collected, ratably, without preference orpriority of any kind, according to the amounts due on such Debt Securities; 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 anysuit, action or proceeding for any remedy hereunder, unless such holderpreviously shall have given to the Trustee written notice of an Event ofDefault with respect to the Debt Securities and unless the holders of not lessthan 25% in aggregate principal amount of the Debt Securities then outstandingshall have given the Trustee a written request to institute such action, suitor proceeding and shall have offered to the Trustee such reasonable indemnityas it may require against the costs, expenses and liabilities to be incurredthereby, 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 Securitiesshall have any right to prejudice the rights of any other holder of DebtSecurities, obtain priority or preference over any other such holder or enforceany right under this Indenture except in the manner herein provided and for theequal, ratable and common benefit of all holders of Debt Securities.

 

Notwithstanding any other provisions in this Indenture, however, theright of any holder of any Debt Security to receive payment of the principalof, premium, if any, and interest on such Debt Security when due, or toinstitute suit for the enforcement of any such payment, shall not be impairedor affected without the consent of such holder.  For the protection and enforcement of the provisions of thisSection, each and every Securityholder and the Trustee shall be entitled tosuch 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 itsdiscretion proceed to protect and enforce the rights vested in it by thisIndenture by such appropriate judicial proceedings as the Trustee shall deemmost effectual to protect and enforce any of such rights, either by suit inequity or by action at law or by proceeding in bankruptcy or otherwise, whetherfor the specific enforcement of any covenant or agreement contained in thisIndenture or in aid of the exercise of any power granted in this Indenture, orto enforce any other legal or equitable right vested in the Trustee by thisIndenture or by law.

 

## SECTION 5.06       Remedies Cumulative and Continuing.

##  

Except as otherwise provided in Section 2.06, all powers andremedies given by this Article V to the Trustee or to the Securityholdersshall, to the extent permitted by law, be deemed cumulative and not exclusiveof any other powers and remedies available to the Trustee or the holders of theDebt Securities, by judicial proceedings or otherwise, to enforce theperformance or observance of the covenants and agreements contained in thisIndenture or otherwise established with respect to the Debt Securities, and nodelay or omission of the Trustee or of any holder of any of the Debt Securitiesto exercise any right or power accruing upon any 

 

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Event of Default occurring and continuing as aforesaid shall impair anysuch right or power, or shall be construed to be a waiver of any such defaultor an acquiescence therein; and, subject to the provisions ofSection 5.04, every power and remedy given by this Article V or bylaw to the Trustee or to the Securityholders may be exercised from time totime, and as often as shall be deemed expedient, by the Trustee or by theSecurityholders.

 

## SECTION 5.07       Direction of Proceedings and Waiver ofDefaults by Majority of Securityholders.

##  

The holders of a majority in aggregate principal amount of the DebtSecurities affected (voting as one class) at the time outstanding shall havethe right to direct the time, method and place of conducting any proceeding forany remedy available to the Trustee, or exercising any trust or power conferredon the Trustee with respect to such Debt Securities; provided, however,that (subject to the provisions of Section 6.01) the Trustee shall havethe right to decline to follow any such direction if the Trustee shalldetermine that the action so directed would be unjustly prejudicial to theholders not taking part in such direction or if the Trustee being advised bycounsel determines that the action or proceeding so directed may not lawfullybe taken or if a Responsible Officer of the Trustee shall determine that theaction or proceedings so directed would involve the Trustee in personalliability.  Prior to any declarationaccelerating the maturity of the Debt Securities, the holders of a majority inaggregate principal amount of the Debt Securities at the time outstanding mayon behalf of the holders of all of the Debt Securities waive (or modify anypreviously granted waiver of) any past default or Event of Default and itsconsequences, except a default (a) in the payment of principal of, premium,if any, or interest on any of the Debt Securities, (b) in respect ofcovenants or provisions hereof which cannot be modified or amended without theconsent of the holder of each Debt Security affected, or (c)  in respectof 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 theholders of a majority in liquidation preference of the Trust Securities of theTrust shall have consented to such waiver or modification to such waiver; provided,further, that if the consent of the holder of each outstanding DebtSecurity is required, such waiver shall not be effective until each holder ofthe Trust Securities of the Trust shall have consented to such waiver.  Upon any such waiver, the default coveredthereby shall be deemed to be cured for all purposes of this Indenture and theCompany, the Trustee and the holders of the Debt Securities shall be restoredto their former positions and rights hereunder, respectively; but no suchwaiver shall extend to any subsequent or other default or Event of Default orimpair any right consequent thereon. Whenever any default or Event of Default hereunder shall have beenwaived as permitted by this Section 5.07, said default or Event of Defaultshall for all purposes of the Debt Securities and this Indenture be deemed tohave been cured and to be not continuing.

 

## SECTION 5.08       Notice of Defaults.

##  

The Trustee shall, within 90 days after a Responsible Officer ofthe Trustee shall have actual knowledge or received written notice of theoccurrence of a default with respect to the Debt Securities, mail to allSecurityholders, as the names and addresses of such holders appear upon the DebtSecurity Register, notice of all defaults with respect to the Debt Securitiesknown to the Trustee, unless such defaults shall have been cured before thegiving of such notice (the term “defaults” for the purpose of thisSection 5.08 being hereby defined to be the events 

 

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specified in subsections (a), (b), (c), (d) and (e) ofSection 5.01, not including periods of grace, if any, provided fortherein); provided, that, except in the case of default in thepayment of the principal of, premium, if any, or interest on any of the DebtSecurities, the Trustee shall be protected in withholding such notice if and solong as a Responsible Officer of the Trustee in good faith determines that thewithholding 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 DebtSecurity 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 enforcementof any right or remedy under this Indenture, or in any suit against the Trusteefor any action taken or omitted by it as Trustee, the filing by any partylitigant in such suit of an undertaking to pay the costs of such suit, and thatsuch court may in its discretion assess reasonable costs, including reasonableattorneys’ fees and expenses, against any party litigant in such suit, havingdue regard to the merits and good faith of the claims or defenses made by suchparty litigant; but the provisions of this Section 5.09 shall not apply toany suit instituted by the Trustee, to any suit instituted by anySecurityholder, or group of Securityholders, holding in the aggregate more than10% in principal amount of the Debt Securities outstanding, or to any suitinstituted by any Securityholder for the enforcement of the payment of theprincipal of (or premium, if any) or interest on any Debt Security against theCompany on or after the same shall have become due and payable.

 

# ARTICLE VICONCERNING THE TRUSTEE

##  

## SECTION 6.01       Duties and Responsibilities of Trustee.

##  

With respect to the holders of Debt Securities issued hereunder, theTrustee, prior to the occurrence of an Event of Default with respect to the DebtSecurities and after the curing or waiving of all Events of Default which mayhave occurred, with respect to the Debt Securities, undertakes to perform suchduties and only such duties as are specifically set forth in this Indenture.  In case an Event of Default with respect tothe Debt Securities has occurred (which has not been cured or waived) theTrustee shall exercise such of the rights and powers vested in it by thisIndenture, and use the same degree of care and skill in their exercise, as aprudent person would exercise or use under the circumstances in the conduct ofsuch person’s own affairs.

 

No provision of this Indenture shall be construed to relieve theTrustee from liability for its own negligent action, its own negligent failureto act or its own willful misconduct, except that:

 

### (a)           priorto the occurrence of an Event of Default with respect to the Debt Securitiesand after the curing or waiving of all Events of Default which may haveoccurred,

###  

#### (i)            the dutiesand obligations of the Trustee with respect to the Debt Securities shall bedetermined solely by the express provisions of this Indenture, and the 

####  

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#### Trustee shall not be liable except for the performance of such dutiesand obligations with respect to the Debt Securities as are specifically setforth in this Indenture, and no implied covenants or obligations shall be readinto this Indenture against the Trustee; and

####  

#### (ii)           in theabsence of bad faith on the part of the Trustee, the Trustee may conclusivelyrely, as to the truth of the statements and the correctness of the opinionsexpressed therein, upon any certificates or opinions furnished to the Trusteeand conforming to the requirements of this Indenture; but, in the case of any suchcertificates or opinions which by any provision hereof are specificallyrequired to be furnished to the Trustee, the Trustee shall be under a duty toexamine the same to determine whether or not they conform on their face to therequirements of this Indenture;

####  

### (b)           theTrustee shall not be liable for any error of judgment made in good faith by aResponsible Officer or Officers of the Trustee, unless it shall be proved thatthe Trustee was negligent in ascertaining the pertinent facts;

###  

### (c)           theTrustee shall not be liable with respect to any action taken or omitted to betaken by it in good faith, in accordance with the direction of theSecurityholders pursuant to Section 5.07, relating to the time, method andplace of conducting any proceeding for any remedy available to the Trustee, orexercising any trust or power conferred upon the Trustee, under this Indenture;and

###  

### (d)           theTrustee shall not be charged with knowledge of any Default or Event of Defaultwith respect to the Debt Securities unless either (1) a ResponsibleOfficer shall have actual knowledge of such Default or Event of Default or(2) written notice of such Default or Event of Default shall have beengiven to the Trustee by the Company or any other obligor on the Debt Securitiesor by any holder of the Debt Securities, except with respect to an Event ofDefault pursuant to Sections 5.01(a) or 5.01(b) hereof (other than anEvent of Default resulting from the default in the payment of AdditionalInterest or premium, if any, if the Trustee does not have actual knowledge orwritten notice that such payment is due and payable), of which the Trusteeshall be deemed to have knowledge.

###  

None of the provisions contained in this Indenture shall require theTrustee to expend or risk its own funds or otherwise incur personal financialliability in the performance of any of its duties or in the exercise of any ofits rights or powers.

 

## SECTION 6.02       Reliance on Documents, Opinions, etc.

##  

Except as otherwise provided in Section 6.01:

 

### (a)           theTrustee may conclusively rely and shall be fully protected in acting orrefraining from acting upon any resolution, certificate, statement, instrument,opinion, report, notice, request, consent, order, bond, note, debenture orother paper or document believed by it in good faith to be genuine and to havebeen signed or presented by the proper party or parties;

###  

### (b)           anyrequest, direction, order or demand of the Company mentioned herein shall besufficiently evidenced by an Officers’ Certificate (unless other evidence inrespect 

###  

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thereof be herein specifically prescribed); and any Board Resolutionmay be evidenced to the Trustee by a copy thereof certified by the Secretary oran Assistant Secretary of the Company;

###  

### (c)           theTrustee may consult with counsel of its selection and any advice or Opinion ofCounsel shall be full and complete authorization and protection in respect ofany action taken, suffered or omitted by it hereunder in good faith and inaccordance with such advice or Opinion of Counsel;

###  

### (d)           theTrustee shall be under no obligation to exercise any of the rights or powersvested in it by this Indenture at the request, order or direction of any of theSecurityholders, pursuant to the provisions of this Indenture, unless suchSecurityholders shall have offered to the Trustee reasonable security orindemnity against the costs, expenses and liabilities which may be incurredtherein or thereby;

###  

### (e)           theTrustee shall not be liable for any action taken or omitted by it in good faithand reasonably believed by it to be authorized or within the discretion orrights or powers conferred upon it by this Indenture; nothing contained hereinshall, however, relieve the Trustee of the obligation, upon the occurrence ofan Event of Default with respect to the Debt Securities (that has not beencured or waived) to exercise with respect to the Debt Securities such of therights and powers vested in it by this Indenture, and to use the same degree ofcare and skill in their exercise, as a prudent person would exercise or useunder the circumstances in the conduct of such person’s own affairs;

###  

### (f)            theTrustee shall not be bound to make any investigation into the facts or mattersstated in any resolution, certificate, statement, instrument, opinion, report,notice, request, consent, order, approval, bond, debenture, coupon or otherpaper or document, unless requested in writing to do so by the holders of notless than a majority in principal amount of the outstanding Debt Securities affectedthereby; provided, however, that if the payment within a reasonable time to theTrustee of the costs, expenses or liabilities likely to be incurred by it inthe making of such investigation is, in the opinion of the Trustee, notreasonably assured to the Trustee by the security afforded to it by the termsof this Indenture, the Trustee may require reasonable indemnity against suchexpense or liability as a condition to so proceeding; and

###  

### (g)           theTrustee may execute any of the trusts or powers hereunder or perform any dutieshereunder either directly or by or through agents (including any AuthenticatingAgent) or attorneys, and the Trustee shall not be responsible for anymisconduct or negligence on the part of any such agent or attorney appointed byit with due care.

###  

## SECTION 6.03       No Responsibility for Recitals, etc.

##  

The recitals contained herein and in the Debt Securities (except in thecertificate of authentication of the Trustee or the Authenticating Agent) shallbe taken as the statements of the Company and the Trustee and theAuthenticating Agent assume no responsibility for the correctness of thesame.  The Trustee and theAuthenticating Agent make no representations as to the validity or sufficiencyof this Indenture or of the Debt Securities. The Trustee and the Authenticating Agent shall not be accountable forthe use or application by the Company of any 

 

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Debt Securities or the proceeds of any Debt Securities authenticatedand delivered by the Trustee or the Authenticating Agent in conformity with theprovisions of this Indenture.

 

## SECTION 6.04       Trustee, Authenticating Agent, PayingAgents, Transfer Agents or Registrar May Own Debt Securities.

##  

The Trustee or any Authenticating Agent or any Paying Agent or anytransfer agent or any Debt Security registrar, in its individual or any othercapacity, may become the owner or pledgee of Debt Securities with the samerights it would have if it were not Trustee, Authenticating Agent, PayingAgent, 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 bythe Trustee or any Paying Agent shall, until used or applied as hereinprovided, be held in trust for the purpose for which they were received, butneed not be segregated from other funds except to the extent required bylaw.  The Trustee and any Paying Agentshall be under no liability for interest on any money received by it hereunderexcept as otherwise agreed in writing with the Company.  So long as no Event of Default shall haveoccurred 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 theCompany, signed by the Chairman of the Board of Directors, the President, theChief Operating Officer, a Vice President, the Treasurer or an AssistantTreasurer of the Company.

 

## SECTION 6.06       Compensation and Expenses of Trustee.

##  

The Company covenants and agrees to pay to the Trustee from time totime, and the Trustee shall be entitled to, such compensation as shall beagreed to in writing between the Company and the Trustee (which shall not belimited by any provision of law in regard to the compensation of a trustee ofan express trust), and the Company will pay or reimburse the Trustee upon itswritten request for all documented reasonable expenses, disbursements andadvances incurred or made by the Trustee in accordance with any of theprovisions of this Indenture (including the reasonable compensation and thereasonable expenses and disbursements of its counsel and of all Persons notregularly in its employ) except any such expense, disbursement or advance thatarises from its negligence or bad faith. The Company also covenants to indemnify each of the Trustee (includingin its individual capacity) and any predecessor Trustee (and its officers,agents, directors and employees) for, and to hold it harmless against, any andall loss, damage, claim, liability or expense including taxes (other than taxesbased 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 suchindemnitee, arising out of or in connection with the acceptance or administrationof this Trust, including the costs and expenses of defending itself against anyclaim or liability in the premises.  Theobligations of the Company under this Section 6.06 to compensate andindemnify the Trustee and to pay or reimburse the Trustee for documentedexpenses, disbursements and advances shall constitute additional indebtednesshereunder.  Such additional indebtednessshall be secured by a lien prior to that of the Debt Securities upon allproperty and funds held or collected by the Trustee as such, except funds heldin trust for the benefit of the holders of particular Debt Securities.

 

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Without prejudice to any other rights available to the Trustee underapplicable law, when the Trustee incurs expenses or renders services inconnection with an Event of Default specified in subsections (d), (e) or(f) of Section 5.01, the expenses (including the reasonable charges andexpenses of its counsel) and the compensation for the services are intended toconstitute expenses of administration under any applicable federal or statebankruptcy, insolvency or other similar law.

 

The provisions of this Section shall survive the resignation or removalof 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, wheneverin the administration of the provisions of this Indenture the Trustee shalldeem it necessary or desirable that a matter be proved or established prior totaking or omitting any action hereunder, such matter (unless other evidence inrespect thereof be herein specifically prescribed) may, in the absence ofnegligence or bad faith on the part of the Trustee, be deemed to be conclusivelyproved and established by an Officers’ Certificate delivered to the Trustee,and such certificate, in the absence of negligence or bad faith on the part ofthe Trustee, shall be full warrant to the Trustee for any action taken oromitted 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 isa banking corporation or national association organized and doing businessunder the laws of the United States of America or any state thereof or of theDistrict of Columbia and authorized under such laws to exercise corporate trustpowers, having a combined capital and surplus of at least fifty millionU.S. dollars ($50,000,000) and subject to supervision or examination byfederal, state, or District of Columbia authority.  If such corporation or national association publishes reports ofcondition at least annually, pursuant to law or to the requirements of theaforesaid supervising or examining authority, then for the purposes of thisSection 6.08 the combined capital and surplus of such corporation ornational association shall be deemed to be its combined capital and surplus asset forth in its most recent records of condition so published.

 

The Company may not, nor may any Person directly or indirectlycontrolling, controlled by, or under common control with the Company, serve asTrustee, notwithstanding that such corporation or national association shall beotherwise eligible and qualified under this Article.

 

In case at any time the Trustee shall cease to be eligible inaccordance with the provisions of this Section 6.08, the Trustee shallresign immediately in the manner and with the effect specified inSection 6.09.

 

If the Trustee has or shall acquire any “conflicting interest” withinthe meaning of §310(b) of the Trust Indenture Act, the Trustee shall eithereliminate such interest or resign, to the extent and in the manner provided by,and subject to this Indenture.

 

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## SECTION 6.09       Resignation or Removal of Trustee.

##  

### (a)           TheTrustee, or any trustee or trustees hereafter appointed, may at any time resignby giving written notice of such resignation to the Company and by mailingnotice thereof, at the Company’s expense, to the holders of the Debt Securitiesat 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 writteninstrument, in duplicate, executed by order of its Board of Directors, one copyof which instrument shall be delivered to the resigning Trustee and one copy tothe successor Trustee.  If no successorTrustee shall have been so appointed and have accepted appointment within30 days after the mailing of such notice of resignation to the affectedSecurityholders, the resigning Trustee may petition any court of competentjurisdiction for the appointment of a successor Trustee, or any Securityholderwho has been a bona fide holder of a Debt Security or Debt Securities for atleast six months may, subject to the provisions of Section 5.09, on behalfof himself or herself and all others similarly situated, petition any suchcourt for the appointment of a successor Trustee.  Such court may thereupon, after such notice, if any, as it maydeem proper and prescribe, appoint a successor Trustee.

###  

### (b)           Incase at any time any of the following shall occur:

###  

#### (i)            the Trusteeshall fail to comply with the provisions of the last paragraph ofSection 6.08 after written request therefor by the Company or by anySecurityholder who has been a bona fide holder of a Debt Security or DebtSecurities for at least six months;

####  

#### (ii)           the Trusteeshall cease to be eligible in accordance with the provisions ofSection 6.08 and shall fail to resign after written request therefor bythe Company or by any such Securityholder; or

####  

#### (iii)          the Trusteeshall 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 anypublic officer shall take charge or control of the Trustee or of its propertyor affairs for the purpose of rehabilitation, conservation or liquidation,

####  

then, in any such case, the Company may remove the Trustee and appointa successor Trustee by written instrument, in duplicate, executed by order ofthe Board of Directors, one copy of which instrument shall be delivered to theTrustee so removed and one copy to the successor Trustee, or, subject to theprovisions of Section 5.09, if no successor Trustee shall have been soappointed and have accepted appointment within 30 days of the occurrenceof any of (i), (ii) or (iii) above, any Securityholder who has been a bona fideholder of a Debt Security or Debt Securities for at least six months may, onbehalf of himself or herself and all others similarly situated, petition anycourt of competent jurisdiction for the removal of the Trustee and theappointment of a successor Trustee. Such court may thereupon, after such notice, if any, as it may deemproper and prescribe, remove the Trustee and appoint a successor Trustee.

 

### (e)           Uponprior written notice to the Company and the Trustee, the holders of a majorityin aggregate principal amount of the Debt Securities at the time outstandingmay at any 

###  

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time remove the Trustee and nominate a successor Trustee, which shallbe deemed appointed as successor Trustee unless within ten Business Days aftersuch nomination the Company objects thereto, in which case or in the case of afailure by such holders to nominate a successor Trustee, the Trustee so removedor any Securityholder, upon the terms and conditions and otherwise as insubsection (a) of this Section 6.09 provided, may petition any courtof competent jurisdiction for an appointment of a successor.

###  

### (f)            Anyresignation or removal of the Trustee and appointment of a successor Trusteepursuant to any of the provisions of this Section 6.09 shall becomeeffective upon acceptance of appointment by the successor Trustee as providedin Section 6.10.

###  

## SECTION 6.10       Acceptance by Successor Trustee.

##  

Any successor Trustee appointed as provided in Section 6.09 shallexecute, acknowledge and deliver to the Company and to its predecessor Trusteean instrument accepting such appointment hereunder, and thereupon theresignation or removal of the retiring Trustee shall become effective and suchsuccessor Trustee, without any further act, deed or conveyance, shall becomevested with all the rights, powers, duties and obligations with respect to theDebt Securities of its predecessor hereunder, with like effect as if originallynamed as Trustee herein; but, nevertheless, on the written request of theCompany or of the successor Trustee, the Trustee ceasing to act shall, uponpayment of the amounts then due it pursuant to the provisions ofSection 6.06, execute and deliver an instrument transferring to suchsuccessor Trustee all the rights and powers of the Trustee so ceasing to actand shall duly assign, transfer and deliver to such successor Trustee allproperty 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 andcertainly vesting in and confirming to such successor Trustee all such rightsand powers.  Any Trustee ceasing to actshall, nevertheless, retain a lien upon all property or funds held or collectedby such Trustee to secure any amounts then due it pursuant to the provisions ofSection 6.06.

 

If a successor Trustee is appointed, the Company, the retiring Trusteeand the successor Trustee shall execute and deliver an indenture supplementalhereto which shall contain such provisions as shall be deemed necessary ordesirable to confirm that all the rights, powers, trusts and duties of theretiring Trustee with respect to the Debt Securities as to which thepredecessor Trustee is not retiring shall continue to be vested in thepredecessor Trustee, and shall add to or change any of the provisions of thisIndenture as shall be necessary to provide for or facilitate the administrationof the Trust hereunder by more than one Trustee, it being understood thatnothing herein or in such supplemental indenture shall constitute such Trusteesco-trustees of the same trust and that each such Trustee shall be Trustee of atrust or trusts hereunder separate and apart from any trust or trusts hereunderadministered by any other such Trustee.

 

No successor Trustee shall accept appointment as provided in thisSection 6.10 unless at the time of such acceptance such successor Trusteeshall be eligible and qualified under the provisions of Section 6.08.

 

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In no event shall a retiring Trustee be liable for the acts oromissions of any successor Trustee hereunder.

 

Upon acceptance of appointment by a successor Trustee as provided inthis Section 6.10, the Company shall mail notice of the succession of suchTrustee hereunder to the holders of Debt Securities at their addresses as theyshall appear on the Debt Security Register. If the Company fails to mail such notice within ten Business Days afterthe acceptance of appointment by the successor Trustee, the successor Trusteeshall 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 orwith which it may be consolidated, or any corporation resulting from anymerger, conversion or consolidation to which the Trustee shall be a party, orany corporation succeeding to all or substantially all of the corporate trustbusiness of the Trustee, shall be the successor of the Trustee hereunderwithout the execution or filing of any paper or any further act on the part ofany of the parties hereto; provided, that such corporation shallbe otherwise eligible and qualified under this Article.

 

In case at the time such successor to the Trustee shall succeed to thetrusts created by this Indenture any of the Debt Securities shall have beenauthenticated but not delivered, any such successor to the Trustee may adoptthe certificate of authentication of any predecessor Trustee, and deliver suchDebt Securities so authenticated; and in case at that time any of the DebtSecurities shall not have been authenticated, any successor to the Trustee mayauthenticate such Debt Securities either in the name of any predecessorhereunder or in the name of the successor Trustee; and in all such cases suchcertificates shall have the full force which it is anywhere in the DebtSecurities or in this Indenture provided that the certificate of the Trusteeshall have; provided, however, that the right to adopt thecertificate of authentication of any predecessor Trustee or authenticate DebtSecurities in the name of any predecessor Trustee shall apply only to itssuccessor or successors by merger, conversion or consolidation.

 

## SECTION 6.12       Authenticating Agents.

##  

There may be one or more Authenticating Agents appointed by the Trusteeupon the request of the Company with power to act on its behalf and subject toits direction in the authentication and delivery of Debt Securities issued uponexchange or registration of transfer thereof as fully to all intents and purposesas though any such Authenticating Agent had been expressly authorized toauthenticate and deliver Debt Securities; provided, that theTrustee shall have no liability to the Company for any acts or omissions of theAuthenticating Agent with respect to the authentication and delivery of DebtSecurities.  Any such AuthenticatingAgent shall at all times be a corporation organized and doing business underthe laws of the United States or of any state or territory thereof or of theDistrict 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 subjectto supervision or examination by federal, state, territorial or District ofColumbia authority.  If such corporationpublishes reports of condition at least annually pursuant to law or therequirements of such authority, then for the purposes of this 

 

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Section 6.12 the combined capital and surplus of such corporationshall be deemed to be its combined capital and surplus as set forth in its mostrecent report of condition so published. If at any time an Authenticating Agent shall cease to be eligible inaccordance with the provisions of this Section, it shall resign immediately inthe manner and with the effect herein specified in this Section.

 

Any corporation into which any Authenticating Agent may be merged orconverted or with which it may be consolidated, or any corporation resultingfrom any merger, consolidation or conversion to which any Authenticating Agentshall be a party, or any corporation succeeding to all or substantially all ofthe corporate trust business of any Authenticating Agent, shall be thesuccessor of such Authenticating Agent hereunder, if such successor corporationis otherwise eligible under this Section 6.12 without the execution orfiling of any paper or any further act on the part of the parties hereto orsuch Authenticating Agent.

 

Any Authenticating Agent may at any time resign by giving writtennotice of resignation to the Trustee and to the Company.  The Trustee may at any time terminate theagency of any Authenticating Agent with respect to the Debt Securities bygiving written notice of termination to such Authenticating Agent and to theCompany.  Upon receiving such a noticeof resignation or upon such a termination, or in case at any time anyAuthenticating Agent shall cease to be eligible under this Section 6.12,the Trustee may, and upon the request of the Company shall, promptly appoint asuccessor Authenticating Agent eligible under this Section 6.12, shallgive written notice of such appointment to the Company and shall mail notice ofsuch appointment to all holders of Debt Securities as the names and addressesof such holders appear on the Debt Security Register.  Any successor Authenticating Agent upon acceptance of itsappointment hereunder shall become vested with all rights, powers, duties andresponsibilities with respect to the Debt Securities of its predecessorhereunder, with like effect as if originally named as Authenticating Agentherein.

 

The Company agrees to pay to any Authenticating Agent from time to timereasonable compensation for its services. Any Authenticating Agent shall have no responsibility or liability forany action taken by it as such in accordance with the directions of theTrustee.

 

# ARTICLE VIICONCERNING THE SECURITYHOLDERS

#  

## SECTION 7.01       Action by Securityholders.

##  

Whenever in this Indenture it is provided that the holders of aspecified percentage in aggregate principal amount of the Debt Securities maytake any action (including the making of any demand or request, the giving ofany notice, consent or waiver or the taking of any other action), the fact thatat the time of taking any such action the holders of such specified percentagehave joined therein may be evidenced (a) by any instrument or any numberof instruments of similar tenor executed by such Securityholders in person orby agent or proxy appointed in writing, or (b) by the record of such holdersof Debt Securities voting in favor thereof at any meeting of suchSecurityholders duly called and held in accordance with the provisions ofArticle VIII, or (c) by a combination of such instrument orinstruments and any 

 

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such record of such a meeting of such Securityholders, or (d) byany 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 orrevocation of the same, the Company may, at its option, as evidenced by anOfficers’ Certificate, fix in advance a record date for such Debt Securitiesfor the determination of Securityholders entitled to give such request, demand,authorization, direction, notice, consent, waiver or other action or revocationof the same, but the Company shall have no obligation to do so.  If such a record date is fixed, suchrequest, demand, authorization, direction, notice, consent, waiver or otheraction 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 recorddate shall be deemed to be Securityholders for the purposes of determiningwhether Securityholders of the requisite proportion of outstanding DebtSecurities have authorized or agreed or consented to such request, demand,authorization, direction, notice, consent, waiver or other action or revocationof the same, and for that purpose the outstanding Debt Securities shall becomputed as of the record date; provided, however, that no suchauthorization, agreement or consent by such Securityholders on the record dateshall be deemed effective unless it shall become effective pursuant to theprovisions 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, proofof the execution of any instrument by a Securityholder or such Securityholder’sagent or proxy shall be sufficient if made in accordance with such reasonablerules and regulations as may be prescribed by the Trustee or in such manner asshall be satisfactory to the Trustee. The ownership of Debt Securities shall be proved by the Debt SecurityRegister or by a certificate of the Debt Security registrar.  The Trustee may require such additionalproof of any matter referred to in this Section as it shall deemnecessary.

 

The record of any Securityholders’ meeting shall be proved in themanner provided in Section 8.06.

 

## SECTION 7.03       Who Are Deemed Absolute Owners.

##  

Prior to due presentment for registration of transfer of any DebtSecurity, the Company, the Trustee, any Authenticating Agent, any Paying Agent,any transfer agent and any Debt Security registrar may deem the Person in whosename such Debt Security shall be registered upon the Debt Security Register tobe, 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 ofreceiving payment of or on account of the principal of, premium, if any, andinterest on such Debt Security and for all other purposes; and neither theCompany nor the Trustee nor any Authenticating Agent nor any Paying Agent norany transfer agent nor any Debt Security registrar shall be affected by anynotice to the contrary.  All suchpayments so made to any holder for the time being or upon such holder’s ordershall be valid, and, to the extent of the sum or sums so paid, effectual tosatisfy and discharge the liability for moneys payable upon any such DebtSecurity.

 

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## SECTION 7.04       Debt Securities Owned by CompanyDeemed Not Outstanding.

##  

In determining whether the holders of the requisite aggregate principalamount of Debt Securities have concurred in any direction, consent or waiverunder this Indenture, Debt Securities which are owned by the Company or anyother obligor on the Debt Securities or by any Person directly or indirectlycontrolling or controlled by or under direct or indirect common control withthe Company or any other obligor on the Debt Securities shall be disregardedand deemed not to be outstanding for the purpose of any such determination; provided,that for the purposes of determining whether the Trustee shall beprotected in relying on any such direction, consent or waiver, only DebtSecurities which a Responsible Officer of the Trustee actually knows are soowned shall be so disregarded.  DebtSecurities so owned which have been pledged in good faith may be regarded asoutstanding for the purposes of this Section 7.04 if the pledgee shallestablish to the satisfaction of the Trustee the pledgee’s right to vote suchDebt Securities and that the pledgee is not the Company or any such otherobligor or Person directly or indirectly controlling or controlled by or underdirect or indirect common control with the Company or any such otherobligor.  In the case of a dispute as tosuch right, any decision by the Trustee taken upon the advice of counsel shallbe full protection to the Trustee.

 

## SECTION 7.05       Revocation of Consents; Future HoldersBound.

##  

At any time prior to (but not after) the evidencing to the Trustee, asprovided in Section 7.01, of the taking of any action by the holders ofthe percentage in aggregate principal amount of the Debt Securities specifiedin this Indenture in connection with such action, any holder (in cases where norecord date has been set pursuant to Section 7.01) or any holder as of anapplicable record date (in cases where a record date has been set pursuant toSection 7.01) of a Debt Security (or any Debt Security issued in whole orin part in exchange or substitution therefor) the serial number of which isshown by the evidence to be included in the Debt Securities the holders ofwhich have consented to such action may, by filing written notice with theTrustee at the Principal Office of the Trustee and upon proof of holding asprovided in Section 7.02, revoke such action so far as concerns such DebtSecurity (or so far as concerns the principal amount represented by anyexchanged or substituted Debt Security). Except as aforesaid any such action taken by the holder of any DebtSecurity shall be conclusive and binding upon such holder and upon all futureholders and owners of such Debt Security, and of any Debt Security issued inexchange or substitution therefor or on registration of transfer thereof,irrespective of whether or not any notation in regard thereto is made upon suchDebt Security or any Debt Security issued in exchange or substitution therefor.

 

# ARTICLE VIIISECURITYHOLDERS’ MEETINGS

#  

## SECTION 8.01       Purposes of Meetings.

##  

A meeting of Securityholders may be called at any time and from time totime pursuant to the provisions of this Article VIII for any of thefollowing purposes:

 

### (a)           togive any notice to the Company or to the Trustee, or to give any directions tothe Trustee, or to consent to the waiving of any default hereunder and its 

###  

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consequences, or to take any other action authorized to be taken bySecurityholders pursuant to any of the provisions of Article V;

###  

### (b)           toremove the Trustee and nominate a successor trustee pursuant to the provisionsof Article VI;

###  

### (c)           toconsent to the execution of an indenture or indentures supplemental heretopursuant to the provisions of Section 9.02; or

###  

### (g)           totake any other action authorized to be taken by or on behalf of the holders ofany specified aggregate principal amount of such Debt Securities under anyother provision of this Indenture or under applicable law.

##  

## SECTION 8.02       Call of Meetings by Trustee.

##  

The Trustee may at any time call a meeting of Securityholders to takeany action specified in Section 8.01, to be held at such time and at suchplace in New York or Wilmington, Delaware, as the Trustee shall determine.  Notice of every meeting of theSecurityholders, setting forth the time and the place of such meeting and in generalterms the action proposed to be taken at such meeting, shall be mailed toholders of Debt Securities affected at their addresses as they shall appear onthe Debt Securities Register.  Suchnotice shall be mailed not less than 20 nor more than 180 days prior tothe date fixed for the meeting.

 

## SECTION 8.03       Call of Meetings by Company orSecurityholders.

##  

In case at any time the Company pursuant to a Board Resolution, or theholders 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 calla meeting of Securityholders, by written request setting forth in reasonabledetail the action proposed to be taken at the meeting, and the Trustee shallnot have mailed the notice of such meeting within 20 days after receipt ofsuch request, then the Company or such Securityholders may determine the timeand the place in Sioux Falls, South Dakota for such meeting and may call suchmeeting to take any action authorized in Section 8.01, by mailing noticethereof as provided in Section 8.02.

 

## SECTION 8.04       Qualifications for Voting.

##  

To be entitled to vote at any meeting of Securityholders a Person shallbe (a) a holder of one or more Debt Securities with respect to which themeeting is being held or (b) a Person appointed by an instrument inwriting as proxy by a holder of one or more such Debt Securities.  The only Persons who shall be entitled to bepresent or to speak at any meeting of Securityholders shall be the Personsentitled to vote at such meeting and their counsel and any representatives ofthe Trustee and its counsel and any representatives of the Company and itscounsel.

 

## SECTION 8.05       Regulations.

##  

Notwithstanding any other provisions of this Indenture, the Trustee maymake such reasonable regulations as it may deem advisable for any meeting ofSecurityholders, in 

 

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regard to proof of the holding of Debt Securities and of theappointment of proxies, and in regard to the appointment and duties ofinspectors of votes, the submission and examination of proxies, certificatesand other evidence of the right to vote, and such other matters concerning theconduct of the meeting as it shall deem appropriate.

 

The Trustee shall, by an instrument in writing, appoint a temporarychairman of the meeting, unless the meeting shall have been called by theCompany or by Securityholders as provided in Section 8.03, in which casethe Company or the Securityholders calling the meeting, as the case may be,shall in like manner appoint a temporary chairman. A permanent chairman and apermanent secretary of the meeting shall be elected by majority vote at themeeting.

 

Subject to the provisions of Section 7.04, at any meeting eachholder of Debt Securities with respect to which such meeting is being held orproxy therefor shall be entitled to one vote for each $1,000 principal amountof 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 DebtSecurity challenged as not outstanding and ruled by the chairman of the meetingto be not outstanding.  The chairman ofthe meeting shall have no right to vote other than by virtue of Debt Securitiesheld by such chairman or instruments in writing as aforesaid duly designatingsuch chairman as the Person to vote on behalf of other Securityholders.  Any meeting of Securityholders duly calledpursuant to the provisions of Section 8.02 or 8.03 may be adjourned fromtime to time by a majority of those present, whether or not constituting aquorum, 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 ofDebt Securities with respect to which such meeting is being held shall be bywritten ballots on which shall be subscribed the signatures of such holders orof their representatives by proxy and the serial number or numbers of the DebtSecurities held or represented by them. The permanent chairman of the meeting shall appoint two inspectors ofvotes who shall count all votes cast at the meeting for or against anyresolution and who shall make and file with the secretary of the meeting theirverified written reports in triplicate of all votes cast at the meeting. A recordin duplicate of the proceedings of each meeting of Securityholders shall beprepared by the secretary of the meeting and there shall be attached to saidrecord the original reports of the inspectors of votes on any vote by ballottaken thereat and affidavits by one or more Persons having knowledge of thefacts setting forth a copy of the notice of the meeting and showing that saidnotice was mailed as provided in Section 8.02.  The record shall show the serial numbers of the Debt Securitiesvoting in favor of or against any resolution. The record shall be signed andverified by the affidavits of the permanent chairman and secretary of themeeting and one of the duplicates shall be delivered to the Company and theother to the Trustee to be preserved by the Trustee, the latter to haveattached thereto the ballots voted at the meeting.

 

Any record so signed and verified shall be conclusive evidence of thematters therein stated.

 

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## SECTION 8.07       Quorum; Actions.

##  

The Persons entitled to vote a majority in outstanding principal amountof the Debt Securities shall constitute a quorum for a meeting ofSecurityholders; provided, however, that if any action is to betaken at such meeting with respect to a consent, waiver, request, demand,notice, authorization, direction or other action which may be given by theholders of not less than a specified percentage in outstanding principal amountof the Debt Securities, the Persons holding or representing such specified percentagein outstanding principal amount of the Debt Securities will constitute aquorum.  In the absence of a quorumwithin 30 minutes of the time appointed for any such meeting, the meetingshall, if convened at the request of Securityholders, be dissolved.  In any other case the meeting may beadjourned for a period of not less than 10 days as determined by thepermanent chairman of the meeting prior to the adjournment of such meeting.  In the absence of a quorum at any suchadjourned meeting, such adjourned meeting may be further adjourned for a periodof not less than 10 days as determined by the permanent chairman of themeeting prior to the adjournment of such adjourned meeting.  Notice of the reconvening of any adjournedmeeting shall be given as provided in Section 8.02, except that suchnotice need be given only once not less than five days prior to the dateon which the meeting is scheduled to be reconvened.  Notice of the reconvening of an adjourned meeting shall stateexpressly the percentage, as provided above, of the outstanding principalamount of the Debt Securities which shall constitute a quorum.

 

Except as limited by the proviso in the first paragraph ofSection 9.02, any resolution presented to a meeting or adjourned meetingduly reconvened at which a quorum is present as aforesaid may be adopted by theaffirmative vote of the holders of not less than a majority in outstandingprincipal 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 providesmay be given by the holders of not less than a specified percentage in outstandingprincipal amount of the Debt Securities may be adopted at a meeting or anadjourned meeting duly reconvened and at which a quorum is present as aforesaidonly by the affirmative vote of the holders of not less than such specifiedpercentage in outstanding principal amount of the Debt Securities.

 

Any resolution passed or decision taken at any meeting of holders ofDebt Securities duly held in accordance with this Section shall be binding onall the Securityholders, whether or not present or represented at the meeting.

 

# ARTICLE IXSUPPLEMENTAL INDENTURES

#  

## SECTION 9.01       Supplemental Indentures withoutConsent of Securityholders.

##  

The Company, when authorized by a Board Resolution, and the Trustee mayfrom time to time and at any time enter into an indenture or indenturessupplemental hereto, without the consent of the Securityholders, for one ormore of the following purposes:

 

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### (a)           toevidence the succession of another corporation to the Company, or successivesuccessions, and the assumption by the successor corporation of the covenants,agreements and obligations of the Company, pursuant to Article XI hereof;

###  

### (b)           toadd to the covenants of the Company such further covenants, restrictions orconditions for the protection of the holders of Debt Securities as the Board ofDirectors shall consider to be for the protection of the holders of such DebtSecurities, and to make the occurrence, or the occurrence and continuance, of adefault in any of such additional covenants, restrictions or conditions adefault or an Event of Default permitting the enforcement of all or any of theseveral remedies provided in this Indenture as herein set forth; provided,however, that in respect of any such additional covenant, restriction orcondition such supplemental indenture may provide for a particular period ofgrace after default (which period may be shorter or longer than that allowed inthe case of other defaults) or may provide for an immediate enforcement uponsuch default or may limit the remedies available to the Trustee upon suchdefault;

###  

### (c)           tocure any ambiguity or to correct or supplement any provision contained hereinor in any supplemental indenture which may be defective or inconsistent withany other provision contained herein or in any supplemental indenture, or tomake such other provisions in regard to matters or questions arising under thisIndenture; provided, that any such action shall not adverselyaffect the interests of the holders of the Debt Securities;

###  

### (d)           toadd to, delete from, or revise the terms of Debt Securities, including, withoutlimitation, any terms relating to the issuance, exchange, registration ortransfer of Debt Securities, including to provide for transfer procedures andrestrictions substantially similar to those applicable to the CapitalSecurities, as required by Section 2.05 (for purposes of assuring that noregistration of Debt Securities is required under the Securities Act of 1933,as amended); provided, that any such action shall not adverselyaffect the interests of the holders of the Debt Securities then outstanding (itbeing understood, for purposes of this proviso, that transfer restrictions onDebt Securities substantially similar to those applicable to Capital Securitiesshall not be deemed to adversely affect the holders of the Debt Securities);

###  

### (e)           toevidence and provide for the acceptance of appointment hereunder by a successorTrustee with respect to the Debt Securities and to add to or change any of theprovisions of this Indenture as shall be necessary to provide for or facilitatethe administration of the trusts hereunder by more than one Trustee, pursuantto the requirements of Section 6.10;

###  

### (f)            tomake any change (other than as elsewhere provided in this paragraph) that doesnot adversely affect the rights of any Securityholder in any material respect;or

###  

### (g)           toprovide for the issuance of and establish the form and terms and conditions ofthe Debt Securities, to establish the form of any certifications required to befurnished pursuant to the terms of this Indenture or the Debt Securities, or toadd to the rights of the holders of Debt Securities.

###  

The Trustee is hereby authorized to join with the Company in theexecution of any such supplemental indenture, to make any further appropriateagreements and stipulations 

 

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which may be therein contained and to accept the conveyance, transferand assignment of any property thereunder, but the Trustee shall not be obligatedto, but may in its discretion, enter into any such supplemental indenture whichaffects the Trustee’s own rights, duties or immunities under this Indenture orotherwise.

 

Any supplemental indenture authorized by the provisions of thisSection 9.01 may be executed by the Company and the Trustee without theconsent 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 Consentof Securityholders.

##  

With the consent (evidenced as provided in Section 7.01) of theholders of not less than a majority in aggregate principal amount of the DebtSecurities at the time outstanding affected by such supplemental indenture(voting as a class), the Company, when authorized by a Board Resolution, andthe Trustee may from time to time and at any time enter into an indenture orindentures supplemental hereto (which shall conform to the provisions of theTrust Indenture Act, then in effect, applicable to indentures qualifiedthereunder) for the purpose of adding any provisions to or changing in anymanner or eliminating any of the provisions of this Indenture or of anysupplemental indenture or of modifying in any manner the rights of the holdersof the Debt Securities; provided, however, that no such supplemental indentureshall without such consent of the holders of each Debt Security thenoutstanding and affected thereby (i) extend the fixed maturity of any DebtSecurity, or reduce the principal amount thereof or any premium thereon, orreduce the rate or extend the time of payment of interest thereon, or reduceany amount payable on redemption thereof or make the principal thereof or anyinterest or premium thereon payable in any coin or currency other than thatprovided in the Debt Securities, or impair or affect the right of anySecurityholder to institute suit for payment thereof or impair the right ofrepayment, if any, at the option of the holder, or (ii) reduce theaforesaid percentage of Debt Securities the holders of which are required toconsent to any such supplemental indenture; and provided, further, that if theDebt Securities are held by the Trust or a trustee of such trust, suchsupplemental indenture shall not be effective until the holders of a majorityin liquidation preference of the Trust Securities shall have consented to suchsupplemental indenture; provided, further, that if the consent ofthe Securityholder of each outstanding Debt Security is required, suchsupplemental indenture shall not be effective until each holder of the TrustSecurities shall have consented to such supplemental indenture.

 

Upon the request of the Company accompanied by a Board Resolutionauthorizing the execution of any such supplemental indenture, and upon the filingwith the Trustee of evidence of the consent of Securityholders as aforesaid,the Trustee shall join with the Company in the execution of such supplementalindenture unless such supplemental indenture affects the Trustee’s own rights,duties or immunities under this Indenture or otherwise, in which case theTrustee may in its discretion, but shall not be obligated to, enter into suchsupplemental indenture.

 

Promptly after the execution by the Company and the Trustee of anysupplemental indenture pursuant to the provisions of this Section, the Trusteeshall transmit by mail, first class postage prepaid, a notice, prepared by theCompany, setting forth in general terms the substance of such supplementalindenture, to the Securityholders as their names and 

 

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addresses appear upon the Debt Security Register.  Any failure of the Trustee to mail suchnotice, or any defect therein, shall not, however, in any way impair or affectthe validity of any such supplemental indenture.

 

It shall not be necessary for the consent of the Securityholders underthis Section 9.02 to approve the particular form of any proposedsupplemental indenture, but it shall be sufficient if such consent shallapprove the substance thereof.

 

## SECTION 9.03       Effect of Supplemental Indentures.

##  

Upon the execution of any supplemental indenture pursuant to theprovisions of this Article IX, this Indenture shall be and be deemed to bemodified and amended in accordance therewith and the respective rights,limitations of rights, obligations, duties and immunities under this Indentureof the Trustee, the Company and the holders of Debt Securities shall thereafterbe determined, exercised and enforced hereunder subject in all respects to suchmodifications and amendments and all the terms and conditions of any suchsupplemental indenture shall be and be deemed to be part of the terms andconditions of this Indenture for any and all purposes.

 

## SECTION 9.04       Notation on Debt Securities.

##  

Debt Securities authenticated and delivered after the execution of anysupplemental indenture pursuant to the provisions of this Article IX maybear a notation as to any matter provided for in such supplementalindenture.  If the Company or theTrustee shall so determine, new Debt Securities so modified as to conform, inthe opinion of the Board of Directors of the Company, to any modification ofthis Indenture contained in any such supplemental indenture may be prepared andexecuted by the Company, authenticated by the Trustee or the AuthenticatingAgent and delivered in exchange for the Debt Securities then outstanding.

 

## SECTION 9.05       Evidence of Compliance of SupplementalIndenture 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 anOfficers’ Certificate and an Opinion of Counsel as conclusive evidence that anysupplemental indenture executed pursuant hereto complies with the requirementsof this Article IX.  The Trusteeshall receive an Opinion of Counsel as conclusive evidence that anysupplemental indenture executed pursuant to this Article IX is authorizedor permitted by, and conforms to, the terms of this Article IX and that itis proper for the Trustee under the provisions of this Article IX to joinin the execution thereof.

 

# ARTICLE XREDEMPTION OF SECURITIES

#  

## SECTION 10.01     Optional Redemption.

##  

At any time the Company shall have the right, subjectto the receipt by the Company of prior approval from the OTS, if then requiredunder applicable capital guidelines or policies of the OTS, to redeem the DebtSecurities, in whole or in part, on any January 7, April 7, 

 

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July 7 or October 7 on or after January 7, 2008 (the “RedemptionDate”), at the Redemption Price.

 

## SECTION 10.02     Special Event Redemption.

##  

If a Special Event shall occur and be continuing, the Company shallhave the right, subject to the receipt by the Company of prior approval fromthe OTS if then required under applicable capital guidelines or policies of theOTS, to redeem the Debt Securities, in whole but not in part, at any timewithin 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 DebtSecurities.

##  

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 datefor redemption and shall mail a notice of such redemption at least 30 and notmore than 60 days prior to the date fixed for redemption to the holders ofDebt Securities so to be redeemed as a whole or in part at their last addressesas the same appear on the Debt Security Register.  Such mailing shall be by first class mail.  The notice if mailed in the manner hereinprovided shall be conclusively presumed to have been duly given, whether or notthe holder receives such notice.  In anycase, failure to give such notice by mail or any defect in the notice to theholder of any Debt Security designated for redemption as a whole or in partshall not affect the validity of the proceedings for the redemption of anyother 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, theredemption price at which Debt Securities are to be redeemed, the place orplaces of payment, that payment will be made upon presentation and surrender ofsuch Debt Securities, that interest accrued to the date fixed for redemptionwill be paid as specified in said notice, and that on and after said dateinterest thereon or on the portions thereof to be redeemed will cease toaccrue. If less than all the Debt Securities are to be redeemed the notice ofredemption shall specify the numbers of the Debt Securities to beredeemed.  In case the Debt Securitiesare to be redeemed in part only, the notice of redemption shall state theportion of the principal amount thereof to be redeemed and shall state that onand after the date fixed for redemption, upon surrender of such Debt Security,a new Debt Security or Debt Securities in principal amount equal to theunredeemed portion thereof will be issued.

 

Prior to 10:00 a.m. New York City time on the Redemption Date or theSpecial Redemption Date specified in the notice of redemption given as providedin this Section, the Company will deposit with the Trustee or with one or morePaying Agents an amount of money sufficient to redeem on the redemption dateall the Debt Securities so called for redemption at the appropriate redemptionprice, together with accrued interest to the date fixed for redemption.

 

The Company will give the Trustee notice not less than 45 nor more than60 days prior to the redemption date as to the redemption price at whichthe Debt Securities are to be redeemed and the aggregate principal amount ofDebt Securities to be redeemed and the Trustee 

 

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shall select, in such manner as in its sole discretion it shall deemappropriate and fair, the Debt Securities or portions thereof (in integralmultiples of $1,000) to be redeemed.

 

## SECTION 10.04     Payment of Debt Securities Called forRedemption.

##  

If notice of redemption has been given as provided inSection 10.03, the Debt Securities or portions of Debt Securities withrespect to which such notice has been given shall become due and payable on theRedemption Date or the Special Redemption Date (as the case may be) and at theplace or places stated in such notice at the applicable redemption price,together with interest accrued to the date fixed for redemption, and on andafter said Redemption Date or the Special Redemption Date (unless the Companyshall default in the payment of such Debt Securities at the redemption price,together with interest accrued to said date) interest on the Debt Securities orportions of Debt Securities so called for redemption shall cease toaccrue.  On presentation and surrenderof such Debt Securities at a place of payment specified in said notice, suchDebt Securities or the specified portions thereof shall be paid and redeemed bythe Company at the applicable redemption price, together with interest accruedthereon to the Redemption Date or the Special Redemption Date (as the case maybe).

 

Upon presentation of any Debt Security redeemed in part only, theCompany shall execute and the Trustee shall authenticate and make available fordelivery to the holder thereof, at the expense of the Company, a new DebtSecurity or Debt Securities of authorized denominations in principal amountequal to the unredeemed portion of the Debt Security so presented.

 

# ARTICLE XICONSOLIDATION, MERGER, SALE, CONVEYANCE AND LEASE

#  

## SECTION 11.01     Company May Consolidate, etc., onCertain Terms.

##  

Nothing contained in this Indenture or in the Debt Securities shallprevent any consolidation or merger of the Company with or into any othercorporation or corporations (whether or not affiliated with the Company) or successiveconsolidations or mergers in which the Company or its successor or successorsshall be a party or parties, or shall prevent any sale, conveyance, transfer orother disposition of the property or capital stock of the Company or itssuccessor or successors as an entirety, or substantially as an entirety, to anyother corporation (whether or not affiliated with the Company, or its successoror 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 all payments dueon all of the Debt Securities in accordance with their terms, according totheir tenor, and the due and punctual performance and observance of all thecovenants and conditions of this Indenture to be kept or performed by theCompany, shall be expressly assumed by supplemental indenture reasonably satisfactoryin form to the Trustee executed and delivered to the Trustee by the entityformed 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.

 

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## SECTION 11.02     Successor Entity to be Substituted.

##  

In case of any such consolidation, merger, sale, conveyance, transferor other disposition and upon the assumption by the successor entity, bysupplemental indenture, executed and delivered to the Trustee and reasonablysatisfactory in form to the Trustee, of the due and punctual payment of theprincipal of and premium, if any, and interest on all of the Debt Securitiesand the due and punctual performance and observance of all of the covenants andconditions of this Indenture to be performed or observed by the Company, suchsuccessor entity shall succeed to and be substituted for the Company, with thesame effect as if it had been named herein as the Company, and thereupon thepredecessor entity shall be relieved of any further liability or obligationhereunder or upon the Debt Securities. Such successor entity thereupon may cause to be signed, and may issueeither in its own name or in the name of the Company, any or all of the DebtSecurities issuable hereunder which theretofore shall not have been signed bythe Company and delivered to the Trustee or the Authenticating Agent; and, uponthe order of such successor entity instead of the Company and subject to allthe terms, conditions and limitations in this Indenture prescribed, the Trusteeor the Authenticating Agent shall authenticate and deliver any Debt Securitieswhich previously shall have been signed and delivered by the officers of theCompany, to the Trustee or the Authenticating Agent for authentication, and anyDebt Securities which such successor entity thereafter shall cause to be signedand delivered to the Trustee or the Authenticating Agent for that purpose.  All the Debt Securities so issued shall inall respects have the same legal rank and benefit under this Indenture as theDebt Securities theretofore or thereafter issued in accordance with the termsof this Indenture as though all of such Debt Securities had been issued at thedate of the execution hereof.

 

## SECTION 11.03     Opinion of Counsel to be Given toTrustee.

##  

The Trustee, subject to the provisions of Sections 6.01 and 6.02,shall receive, in addition to the Opinion of Counsel required bySection 9.05, an Opinion of Counsel as conclusive evidence that anyconsolidation, merger, sale, conveyance, transfer or other disposition, and anyassumption, permitted or required by the terms of this Article XI complieswith the provisions of this Article XI.

 

# ARTICLE XIISATISFACTION AND DISCHARGE OF INDENTURE

#  

## SECTION 12.01     Discharge of Indenture.

##  

When (a) the Company shall deliver to the Trustee for cancellationall Debt Securities theretofore authenticated (other than any Debt Securitieswhich shall have been destroyed, lost or stolen and which shall have been replacedor paid as provided in Section 2.06) and not theretofore canceled, or(b) all the Debt Securities not theretofore canceled or delivered to theTrustee for cancellation shall have become due and payable, or are by theirterms to become due and payable within one year or are to be called forredemption within one year under arrangements satisfactory to the Trustee forthe giving of notice of redemption, and the Company shall deposit with theTrustee, 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 

 

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Securities which shall have been destroyed, lost or stolen and whichshall have been replaced or paid as provided in Section 2.06) nottheretofore canceled or delivered to the Trustee for cancellation, includingprincipal and premium, if any, and interest due or to become due to such dateof maturity or redemption date, as the case may be, but excluding, however, theamount of any moneys for the payment of principal of, and premium, if any, orinterest on the Debt Securities (1) theretofore repaid to the Company inaccordance with the provisions of Section 12.04, or (2) paid to any stateor to the District of Columbia pursuant to its unclaimed property or similarlaws, and if in the case of either clause (a) or clause (b) theCompany shall also pay or cause to be paid all other sums payable hereunder bythe Company, then this Indenture shall cease to be of further effect except forthe provisions of Sections 2.05, 2.06, 3.01, 3.02, 3.04, 6.06, 6.09 and12.04 hereof, which shall survive until such Debt Securities shall mature orare redeemed, as the case may be, and are paid.  Thereafter, Sections 6.06, 6.09 and 12.04 shall survive, andthe Trustee, on demand of the Company accompanied by an Officers’ Certificateand an Opinion of Counsel, each stating that all conditions precedent hereinprovided for relating to the satisfaction and discharge of this Indenture havebeen complied with, and at the cost and expense of the Company, shall executeproper instruments acknowledging satisfaction of and discharging thisIndenture, the Company, however, hereby agreeing to reimburse the Trustee forany costs or expenses thereafter reasonably and properly incurred by theTrustee in connection with this Indenture or the Debt Securities.

 

## SECTION 12.02     Deposited Moneys to be Held in Trust byTrustee.

##  

Subject to the provisions of Section 12.04, all moneys depositedwith the Trustee pursuant to Section 12.01 shall be held in trust andapplied 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 ofthe particular Debt Securities for the payment of which such moneys have beendeposited with the Trustee, of all sums due and to become due thereon forprincipal, 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 thenheld 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 liabilitywith respect to such moneys.

 

## SECTION 12.04     Return of Unclaimed Moneys.

##  

Any moneys deposited with or paid to the Trustee or any Paying Agentfor payment of the principal of, and premium, if any, or interest on DebtSecurities and not applied but remaining unclaimed by the holders of DebtSecurities for two years after the date upon which the principal of, andpremium, if any, or interest on such Debt Securities, as the case may be, shallhave become due and payable, shall be repaid to the Company by the Trustee orsuch Paying Agent on written demand; and the holder of any of the DebtSecurities shall thereafter look only to the Company for any payment which suchholder may be entitled to collect and all liability of the Trustee or suchPaying Agent with respect to such moneys shall thereupon cease.

 

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# ARTICLE XIIIIMMUNITY OF INCORPORATORS, STOCKHOLDERS,OFFICERS AND DIRECTORS

#  

## SECTION 13.01     Indenture and Debt Securities SolelyCorporate Obligations.

##  

No recourse for the payment of the principal of or premium, if any, orinterest on any Debt Security, or for any claim based thereon or otherwise inrespect thereof, and no recourse under or upon any obligation, covenant oragreement of the Company in this Indenture or in any supplemental indenture, orin any such Debt Security, or because of the creation of any indebtednessrepresented thereby, shall be had against any incorporator, stockholder,officer, director, employee or agent, as such, past, present or future, of theCompany or of any predecessor or successor corporation of the Company, eitherdirectly or through the Company or any successor corporation of the Company,whether by virtue of any constitution, statute or rule of law, or by theenforcement of any assessment or penalty or otherwise; it being expresslyunderstood that all such liability is hereby expressly waived and released as acondition of, and as a consideration for, the execution of this Indenture andthe issue of the Debt Securities.

 

# ARTICLE XIVMISCELLANEOUS PROVISIONS

#  

## SECTION 14.01     Successors.

##  

All the covenants, stipulations, promises and agreements of the Companycontained in this Indenture shall bind its successors and assigns whether soexpressed or not.

 

## SECTION 14.02     Official Acts by Successor Entity.

##  

Any act or proceeding by any provision of this Indenture authorized orrequired to be done or performed by any board, committee or officer of theCompany shall and may be done and performed with like force and effect by thelike board, committee, officer or other authorized Person of any entity thatshall 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 maysurrender any of the powers reserved to the Company and thereupon such power sosurrendered shall terminate both as to the Company and as to any permittedsuccessor.

 

## SECTION 14.04     Addresses for Notices, etc.

##  

Any notice or demand which by any provision of this Indenture isrequired or permitted to be given or served by the Trustee or by theSecurityholders on the Company may be given or served in writing by beingdeposited postage prepaid by registered or certified mail in a post officeletter box addressed (until another address is filed by the Company with theTrustee for such purpose) to the Company at 225 South Main Avenue, Sioux Falls,South Dakota 57104, Attention: Curtis L. Hage. Any notice, direction, request or demand by any Securityholder or the 

 

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Company to or upon the Trustee shall be deemed to have beensufficiently given or made, for all purposes, if given or made in writing atthe office of Wilmington Trust Company at Rodney Square North, 1100 NorthMarket Street, Wilmington, Delaware 19890, Attention: Corporate TrustAdministrator.

 

## SECTION 14.05     Governing Law.

##  

This Indenture and each Debt Security shall be deemed to be a contractmade under the law of the State of New York, and for all purposes shall begoverned by and construed in accordance with the law of said State, withoutregard to conflict of laws principles thereof.

 

## SECTION 14.06     Evidence of Compliance with ConditionsPrecedent.

##  

Upon any application or demand by the Company to the Trustee to takeany action under any of the provisions of this Indenture, the Company shallfurnish to the Trustee an Officers’ Certificate stating that in the opinion ofthe signers all conditions precedent, if any, provided for in this Indenturerelating to the proposed action have been complied with and an Opinion ofCounsel stating that, in the opinion of such counsel, all such conditionsprecedent have been complied with (except that no such Opinion of Counsel isrequired to be furnished to the Trustee in connection with the authenticationand issuance of Debt Securities issued on the date of this Indenture).

 

Each certificate or opinion provided for in this Indenture anddelivered to the Trustee with respect to compliance with a condition orcovenant provided for in this Indenture (except certificates delivered pursuantto Section 3.05) shall include (a) a statement that the person makingsuch certificate or opinion has read such covenant or condition; (b) abrief statement as to the nature and scope of the examination or investigationupon which the statements or opinions contained in such certificate or opinionare based; (c) a statement that, in the opinion of such person, he or shehas made such examination or investigation as is necessary to enable him or herto express an informed opinion as to whether or not such covenant or conditionhas been complied with; and (d) a statement as to whether or not, in theopinion 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 ofthe Debt Securities is not a Business Day, the payment of such interest on orprincipal of the Debt Securities need not be made on such date but may be madeon the next succeeding Business Day, with the same force and effect as if madeon the date of payment, except if such Business Day is in the next succeedingcalendar year, such payment will be made on the immediately preceding BusinessDay.

 

## SECTION 14.08     Table of Contents, Headings, etc.

##  

The table of contents and the titles and headings of the articles andsections of this Indenture have been inserted for convenience of referenceonly, are not to be considered a part hereof, and shall in no way modify orrestrict any of the terms or provisions hereof.

 

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## SECTION 14.09     Execution in Counterparts.

##  

This Indenture may be executed in any number of counterparts, each ofwhich shall be an original, but such counterparts shall together constitute butone and the same instrument.

 

## SECTION 14.10     Separability.

##  

In case any one or more of the provisions contained in this Indentureor in the Debt Securities shall for any reason be held to be invalid, illegalor unenforceable in any respect, such invalidity, illegality orunenforceability shall not affect any other provisions of this Indenture or ofsuch Debt Securities, but this Indenture and such Debt Securities shall be construedas if such invalid or illegal or unenforceable provision had never beencontained herein or therein.

 

## SECTION 14.11     Assignment.

##  

Subject to Article XI, the Company will have the right at alltimes to assign any of its rights or obligations under this Indenture to adirect or indirect wholly owned Subsidiary of the Company, provided, that,in the event of any such assignment, the Company will remain liable for allsuch obligations. Subject to the foregoing, this Indenture is binding upon andinures to the benefit of the parties hereto and their respective successors andassigns. 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 heldby the Trust or the Institutional Trustee of the Trust, if the InstitutionalTrustee of the Trust fails to enforce its rights under this Indenture as theholder of Debt Securities held as the assets of the Trust after the holders ofa majority in Liquidation Amount of the Capital Securities of the Trust have sodirected in writing such Institutional Trustee, a holder of record of suchCapital Securities may to the fullest extent permitted by law institute legalproceedings directly against the Company to enforce such InstitutionalTrustee’s rights under this Indenture without first instituting any legalproceedings against such Institutional Trustee or any other Person.  Notwithstanding the foregoing, if an Eventof Default has occurred and is continuing and such event is attributable to thefailure of the Company to pay interest (or premium, if any) or principal on theDebt Securities on the date such interest (or premium, if any) or principal isotherwise due and payable (or in the case of redemption, on the redemptiondate), the Company acknowledges that a holder of record of Capital Securitiesof the Trust may directly institute a proceeding against the Company forenforcement of payment to such holder directly of the principal of (or premium,if any) or interest on the Debt Securities having an aggregate principal amountequal to the aggregate Liquidation Amount of the Capital Securities of suchholder on or after the respective due date specified in the Debt Securities.

 

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# ARTICLE XVSUBORDINATION OF DEBT SECURITIES

#  

## SECTION 15.01     Agreement to Subordinate.

##  

The Company covenants and agrees, and each holder of Debt Securitiesissued hereunder and under any supplemental indenture (the “Additional Provisions”)by such Securityholder’s acceptance thereof likewise covenants and agrees, thatall Debt Securities shall be issued subject to the provisions of thisArticle XV; and each holder of a Debt Security, whether upon originalissue or upon transfer or assignment thereof, accepts and agrees to be bound bysuch provisions.

 

The payment by the Company of the payments due on all Debt Securitiesissued hereunder and under any Additional Provisions shall, to the extent andin the manner hereinafter set forth, be subordinated and junior in right ofpayment to the prior payment in full of all Senior Indebtedness of the Company,whether outstanding at the date of this Indenture or thereafter incurred.

 

No provision of this Article XV shall prevent the occurrence ofany 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 Companyin the payment of principal, premium, interest or any other payment due on anySenior Indebtedness of the Company following any applicable grace period, or inthe event that the maturity of any Senior Indebtedness of the Company has beenaccelerated because of a default, and such acceleration has not been rescindedor canceled and such Senior Indebtedness has not been paid in full, then, ineither case, no payment shall be made by the Company with respect to thepayments due on the Debt Securities.

 

In the event that, notwithstanding the foregoing, any payment shall bereceived by the Trustee when such payment is prohibited by the precedingparagraph of this Section 15.02, such payment shall, subject toSection 15.06, be held in trust for the benefit of, and shall be paid overor 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 suchSenior Indebtedness may have been issued, as their respective interests mayappear, but only to the extent that the holders of the Senior Indebtedness (ortheir representative or representatives or a trustee) notify the Trustee inwriting within 90 days of such payment of the amounts then due and owingon the Senior Indebtedness and only the amounts specified in such notice to theTrustee 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 theCompany of any kind or character, whether in cash, property or securities, tocreditors upon any dissolution or winding-up or liquidation or reorganizationof the Company, whether voluntary or involuntary or in bankruptcy, insolvency,receivership or other proceedings, all amounts due upon all Senior 

 

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Indebtedness of the Company shall first be paid in full, or paymentthereof provided for in money in accordance with its terms, before any paymentis made by the Company on the Debt Securities; and upon any such dissolution orwinding-up or liquidation or reorganization, any payment by the Company, ordistribution of assets of the Company of any kind or character, whether incash, property or securities, to which the Securityholders or the Trustee wouldbe entitled to receive from the Company, except for the provisions of thisArticle XV, shall be paid by the Company, or by any receiver, trustee inbankruptcy, liquidating trustee, agent or other Person making such payment ordistribution, or by the Securityholders or by the Trustee under this Indentureif received by them or it, directly to the holders of Senior Indebtedness ofthe Company (pro rata to such holders on the basis of the respective amounts ofSenior Indebtedness held by such holders, as calculated by the Company) ortheir representative or representatives, or to the trustee or trustees underany indenture pursuant to which any instruments evidencing such SeniorIndebtedness may have been issued, as their respective interests may appear, tothe extent necessary to pay such Senior Indebtedness in full, in money ormoney’s worth, after giving effect to any concurrent payment or distribution toor for the holders of such Senior Indebtedness, before any payment ordistribution is made to the Securityholders.

 

In the event that, notwithstanding the foregoing, any payment ordistribution of assets of the Company of any kind or character, whether incash, property or securities, prohibited by the foregoing, shall be received bythe Trustee before all Senior Indebtedness of the Company is paid in full, orprovision is made for such payment in money in accordance with its terms, suchpayment or distribution shall be held in trust for the benefit of and shall bepaid over or delivered to the holders of such Senior Indebtedness or theirrepresentative or representatives, or to the trustee or trustees under anyindenture pursuant to which any instruments evidencing such Senior Indebtednessmay have been issued, as their respective interests may appear, as calculatedby the Company, for application to the payment of all Senior Indebtedness ofthe Company remaining unpaid to the extent necessary to pay such SeniorIndebtedness in full in money in accordance with its terms, after giving effectto any concurrent payment or distribution to or for the benefit of the holders ofsuch Senior Indebtedness.

 

For purposes of this Article XV, the words “cash, property orsecurities” shall not be deemed to include shares of stock of the Company asreorganized or readjusted, or securities of the Company or any othercorporation provided for by a plan of reorganization or readjustment, thepayment of which is subordinated at least to the extent provided in thisArticle XV with respect to the Debt Securities to the payment of allSenior Indebtedness of the Company, that may at the time be outstanding, provided,that (a) such Senior Indebtedness is assumed by the newcorporation, 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 orreadjustment.  The consolidation of theCompany with, or the merger of the Company into, another corporation or theliquidation or dissolution of the Company following the conveyance or transferof its property as an entirety, or substantially as an entirety, to anothercorporation upon the terms and conditions provided for in Article IX ofthis Indenture shall not be deemed a dissolution, winding-up, liquidation orreorganization for the purposes of this Section 15.03 if such othercorporation shall, as a part of such consolidation, merger, conveyance ortransfer, comply with the conditions stated in Article IX of thisIndenture.  Nothing inSection 15.02 or in this Section 15.03 shall apply to claims of, orpayments to, the Trustee under or pursuant to Section 6.06 of thisIndenture.

 

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## SECTION 15.04     Subrogation.

##  

Subject to the payment in full of all Senior Indebtedness of theCompany, the Securityholders shall be subrogated to the rights of the holdersof such Senior Indebtedness to receive payments or distributions of cash,property or securities of the Company applicable to such Senior Indebtednessuntil all payments due on the Debt Securities shall be paid in full; and, forthe purposes of such subrogation, no payments or distributions to the holdersof such Senior Indebtedness of any cash, property or securities to which theSecurityholders or the Trustee would be entitled except for the provisions ofthis Article XV, and no payment over pursuant to the provisions of thisArticle XV to or for the benefit of the holders of such SeniorIndebtedness by Securityholders or the Trustee, shall, as between the Company,its creditors other than holders of Senior Indebtedness of the Company, and theholders of the Debt Securities be deemed to be a payment or distribution by theCompany to or on account of such Senior Indebtedness.  It is understood that the provisions of this Article XV areand are intended solely for the purposes of defining the relative rights of theholders of the Debt Securities, on the one hand, and the holders of such SeniorIndebtedness, on the other hand.

 

Nothing contained in this Article XV or elsewhere in thisIndenture, any Additional Provisions or in the Debt Securities is intended toor shall impair, as between the Company, its creditors other than the holdersof Senior Indebtedness of the Company, and the holders of the Debt Securities,the obligation of the Company, which is absolute and unconditional, to pay tothe holders of the Debt Securities all payments on the Debt Securities as andwhen the same shall become due and payable in accordance with their terms, oris intended to or shall affect the relative rights of the holders of the Debt Securitiesand creditors of the Company, other than the holders of Senior Indebtedness ofthe Company, nor shall anything herein or therein prevent the Trustee or theholder of any Debt Security from exercising all remedies otherwise permitted byapplicable law upon default under this Indenture, subject to the rights, ifany, under this Article XV of the holders of such Senior Indebtedness inrespect of cash, property or securities of the Company received upon theexercise of any such remedy.

 

Upon any payment or distribution of assets of the Company referred toin this Article XV, the Trustee, subject to the provisions ofArticle VI of this Indenture, and the Securityholders shall be entitled toconclusively rely upon any order or decree made by any court of competentjurisdiction in which such dissolution, winding-up, liquidation orreorganization proceedings are pending, or a certificate of the receiver,trustee in bankruptcy, liquidation trustee, agent or other Person making suchpayment or distribution, delivered to the Trustee or to the Securityholders,for the purposes of ascertaining the Persons entitled to participate in suchdistribution, the holders of Senior Indebtedness and other indebtedness of theCompany, the amount thereof or payable thereon, the amount or amounts paid ordistributed thereon and all other facts pertinent thereto or to thisArticle XV.

 

## SECTION 15.05     Trustee to Effectuate Subordination.

##  

Each Securityholder by such Securityholder’s acceptance thereofauthorizes and directs the Trustee on such Securityholder’s behalf to take suchaction as may be necessary or appropriate to effectuate the subordinationprovided in this Article XV and appoints the Trustee such Securityholder’sattorney-in-fact for any and all such purposes.

 

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## SECTION 15.06     Notice by the Company.

##  

The Company shall give prompt written notice to a Responsible Officerof the Trustee at the Principal Office of the Trustee of any fact known to theCompany that would prohibit the making of any payment of moneys to or by theTrustee in respect of the Debt Securities pursuant to the provisions of thisArticle XV.  Notwithstanding theprovisions of this Article XV or any other provision of this Indenture orany Additional Provisions, the Trustee shall not be charged with knowledge ofthe existence of any facts that would prohibit the making of any payment ofmoneys to or by the Trustee in respect of the Debt Securities pursuant to theprovisions of this Article XV, unless and until a Responsible Officer ofthe Trustee at the Principal Office of the Trustee shall have received writtennotice thereof from the Company or a holder or holders of Senior Indebtednessor from any trustee therefor; and before the receipt of any such writtennotice, the Trustee, subject to the provisions of Article VI of thisIndenture, shall be entitled in all respects to assume that no such factsexist; provided, however, that if the Trustee shall not havereceived the notice provided for in this Section 15.06 at least twoBusiness Days prior to the date upon which by the terms hereof any money maybecome payable for any purpose (including, without limitation, the payment ofthe principal of (or premium, if any) or interest on any Debt Security), then,anything herein contained to the contrary notwithstanding, the Trustee shallhave full power and authority to receive such money and to apply the same tothe purposes for which they were received, and shall not be affected by anynotice to the contrary that may be received by it within two Business Daysprior to such date.

 

The Trustee, subject to the provisions of Article VI of thisIndenture, shall be entitled to conclusively rely on the delivery to it of awritten notice by a Person representing himself or herself to be a holder ofSenior Indebtedness of the Company (or a trustee or representative on behalf ofsuch holder) to establish that such notice has been given by a holder of suchSenior Indebtedness or a trustee or representative on behalf of any such holderor holders.  In the event that theTrustee determines in good faith that further evidence is required with respectto the right of any Person as a holder of such Senior Indebtedness toparticipate in any payment or distribution pursuant to this Article XV,the Trustee may request such Person to furnish evidence to the reasonablesatisfaction of the Trustee as to the amount of such Senior Indebtedness heldby such Person, the extent to which such Person is entitled to participate insuch payment or distribution and any other facts pertinent to the rights ofsuch Person under this Article XV, and, if such evidence is not furnished,the Trustee may defer any payment to such Person pending judicial determinationas to the right of such Person to receive such payment.

 

## SECTION 15.07     Rights of the Trustee; Holders of SeniorIndebtedness.

##  

The Trustee in its individual capacity shall be entitled to all therights set forth in this Article XV in respect of any Senior Indebtednessat any time held by it, to the same extent as any other holder of SeniorIndebtedness, and nothing in this Indenture or any Additional Provisions shalldeprive the Trustee of any of its rights as such holder.

 

With respect to the holders of Senior Indebtedness of the Company, theTrustee undertakes to perform or to observe only such of its covenants andobligations as are specifically set forth in this Article XV, and noimplied covenants or obligations with respect to the holders of such SeniorIndebtedness shall be read into this Indenture or any Additional Provisionsagainst 

 

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the Trustee.  The Trustee shallnot owe or be deemed to owe any fiduciary duty to the holders of such SeniorIndebtedness and, subject to the provisions of Article VI of thisIndenture, the Trustee shall not be liable to any holder of such SeniorIndebtedness if it shall pay over or deliver to Securityholders, the Company orany other Person money or assets to which any holder of such Senior Indebtednessshall be entitled by virtue of this Article XV or otherwise.

 

Nothing in this Article XV shall apply to claims of, or paymentsto, the Trustee under or pursuant to Section 6.06.

 

## SECTION 15.08     Subordination May Not Be Impaired.

##  

No right of any present or future holder of any Senior Indebtedness ofthe Company to enforce subordination as herein provided shall at any time inany way be prejudiced or impaired by any act or failure to act on the part ofthe Company, or by any act or failure to act, in good faith, by any suchholder, or by any noncompliance by the Company, with the terms, provisions andcovenants of this Indenture, regardless of any knowledge thereof that any suchholder 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 fromtime to time, without the consent of or notice to the Trustee or theSecurityholders, without incurring responsibility to the Securityholders and withoutimpairing or releasing the subordination provided in this Article XV orthe obligations hereunder of the holders of the Debt Securities to the holdersof such Senior Indebtedness, do any one or more of the following:(a) change the manner, place or terms of payment or extend the time ofpayment of, or renew or alter, such Senior Indebtedness, or otherwise amend orsupplement in any manner such Senior Indebtedness or any instrument evidencingthe 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 anyPerson 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 acceptsthe trusts in this Indenture declared and provided, upon the terms andconditions herein above set forth.

 

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IN WITNESS WHEREOF, the parties hereto have caused this Indenture to beduly executed by their respective officers thereunto duly authorized, as of theday 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:                                            |

 

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**EXHIBITA**

 

**FORM OFFLOATING RATE JUNIOR SUBORDINATED DEBT SECURITY DUE 2033**

 

[FORM OF FACE OFSECURITY]

 

**THISSECURITY HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED(THE “SECURITIES ACT”), OR ANY STATE SECURITIES LAWS OR ANY OTHER APPLICABLESECURITIES LAWS.  NEITHER THIS SECURITYNOR ANY INTEREST OR PARTICIPATION HEREIN MAY BE REOFFERED, SOLD, ASSIGNED,TRANSFERRED, PLEDGED, ENCUMBERED OR OTHERWISE DISPOSED OF IN THE ABSENCE OFSUCH 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 TOOFFER, 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 “QUALIFIEDINSTITUTIONAL BUYER” AS DEFINED IN RULE 144A THAT PURCHASES FOR ITS OWNACCOUNT OR FOR THE ACCOUNT OF A QUALIFIED INSTITUTIONAL BUYER TO WHOM NOTICE ISGIVEN THAT THE TRANSFER IS BEING MADE IN RELIANCE ON RULE 144A,(C) PURSUANT TO AN EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THESECURITIES ACT TO AN “ACCREDITED INVESTOR” WITHIN THE MEANING OFSUBPARAGRAPH (a) (1), (2), (3) OR (7) OF RULE 501 UNDER THESECURITIES ACT THAT IS ACQUIRING THE SECURITY FOR ITS OWN ACCOUNT, OR FOR THEACCOUNT OF AN “ACCREDITED INVESTOR,” FOR INVESTMENT PURPOSES AND NOT WITH AVIEW TO, OR FOR OFFER OR SALE IN CONNECTION WITH, ANY DISTRIBUTION IN VIOLATIONOF THE SECURITIES ACT, OR (D) PURSUANT TO ANOTHER AVAILABLE EXEMPTION FROMTHE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT, SUBJECT TO THE COMPANY’SRIGHT 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/OROTHER INFORMATION SATISFACTORY TO IT IN ACCORDANCE WITH THE INDENTURE, A COPYOF WHICH MAY BE OBTAINED FROM THE COMPANY. THE HOLDER OF THIS SECURITY BY ITS ACCEPTANCE HEREOF AGREES THAT IT WILLCOMPLY WITH THE FOREGOING RESTRICTIONS.**

 

**THEHOLDER OF THIS SECURITY BY ITS ACCEPTANCE HEREOF AGREES, REPRESENTS ANDWARRANTS THAT IT WILL NOT ENGAGE IN HEDGING TRANSACTIONS INVOLVING THISSECURITY UNLESS SUCH TRANSACTIONS ARE IN COMPLIANCE WITH THE SECURITIES ACT.**

 

**THE HOLDER OF THIS SECURITY BY ITS ACCEPTANCE HEREOF ALSOAGREES, REPRESENTS AND WARRANTS THAT IT IS NOT AN EMPLOYEE BENEFIT, INDIVIDUALRETIREMENT ACCOUNT OR OTHER PLAN OR ARRANGEMENT SUBJECT TO TITLE I OF THEEMPLOYEE RETIREMENT**

 

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**INCOME SECURITYACT OF 1974, AS AMENDED (“ERISA”), OR SECTION 4975 OF THE INTERNAL REVENUECODE OF 1986, AS AMENDED (THE “CODE”), (EACH A “PLAN”), OR AN ENTITY WHOSEUNDERLYING ASSETS INCLUDE “PLAN ASSETS” BY REASON OF ANY PLAN’S INVESTMENT INTHE ENTITY AND NO PERSON INVESTING “PLAN ASSETS” OF ANY PLAN MAY ACQUIRE ORHOLD THIS SECURITY OR ANY INTEREST THEREIN, UNLESS SUCH PURCHASER OR HOLDER ISELIGIBLE FOR THE EXEMPTIVE RELIEF AVAILABLE UNDER U.S. DEPARTMENT OF LABORPROHIBITED TRANSACTION CLASS EXEMPTION 96-23, 95-60, 91-38, 90-1 OR 84-14 ORANOTHER APPLICABLE EXEMPTION OR ITS PURCHASE AND HOLDING OF THIS SECURITY ISNOT PROHIBITED BY SECTION 406 OF ERISA OR SECTION 4975 OF THE CODEWITH RESPECT TO SUCH PURCHASE OR HOLDING. ANY PURCHASER OR HOLDER OF THIS SECURITY OR ANY INTEREST THEREIN WILL BEDEEMED TO HAVE REPRESENTED BY ITS PURCHASE AND HOLDING THEREOF THAT EITHER(i) IT IS NOT AN EMPLOYEE BENEFIT PLAN WITHIN THE MEANING OFSECTION 3(3) OF ERISA, OR A PLAN TO WHICH SECTION 4975 OF THE CODE ISAPPLICABLE, A TRUSTEE OR OTHER PERSON ACTING ON BEHALF OF AN EMPLOYEE BENEFIT PLANOR PLAN, OR ANY OTHER PERSON OR ENTITY USING THE ASSETS OF ANY EMPLOYEE BENEFITPLAN OR PLAN TO FINANCE SUCH PURCHASE, OR (ii) SUCH PURCHASE WILL NOTRESULT IN A PROHIBITED TRANSACTION UNDER SECTION 406 OF ERISA ORSECTION 4975 OF THE CODE FOR WHICH THERE IS NO APPLICABLE STATUTORY ORADMINISTRATIVE EXEMPTION.**

 

**INCONNECTION WITH ANY TRANSFER, THE HOLDER OF THIS SECURITY WILL DELIVER TO THEREGISTRAR AND TRANSFER AGENT SUCH CERTIFICATES AND OTHER INFORMATION AS MAY BEREQUIRED BY THE INDENTURE TO CONFIRM THAT THE TRANSFER COMPLIES WITH THEFOREGOING RESTRICTIONS.**

 

**THIS SECURITY WILL BE ISSUED AND MAY BE TRANSFERRED ONLY INBLOCKS HAVING A PRINCIPAL AMOUNT OF NOT LESS THAN $100,000 AND MULTIPLES OF$1,000 IN EXCESS THEREOF.  ANY ATTEMPTEDTRANSFER 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 SUCHPURPORTED TRANSFEREE SHALL BE DEEMED NOT TO BE THE HOLDER OF THIS SECURITY FORANY PURPOSE, INCLUDING, BUT NOT LIMITED TO, THE RECEIPT OF DISTRIBUTIONS ONTHIS SECURITY, AND SUCH PURPORTED TRANSFEREE SHALL BE DEEMED TO HAVE NOINTEREST WHATSOEVER IN THIS SECURITY.**

 

**THISOBLIGATION IS NOT A DEPOSIT AND IS NOT INSURED BY THE UNITED STATES OR ANYAGENCY OR FUND OF THE UNITED STATES, INCLUDING THE FEDERAL DEPOSIT INSURANCECORPORATION (THE “FDIC”).  THISOBLIGATION IS SUBORDINATED TO THE CLAIMS OF DEPOSITORS AND THE CLAIMS OFGENERAL AND SECURED CREDITORS OF THE COMPANY, IS**

 

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**INELIGIBLEAS COLLATERAL FOR A LOAN BY THE COMPANY OR ANY OF ITS SUBSIDIARIES AND IS NOTSECURED.**

 

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Floating Rate JuniorSubordinated Debt Security due 2033

 

of

 

HF FINANCIAL CORP.

 

HF Financial Corp., a savings and loan holding company incorporatedinDelaware (the “Company”), for value received promises to pay to WilmingtonTrust Company, not in its individual capacity but solely as InstitutionalTrustee for HF Financial Capital Trust III, a Delaware statutory trust (the“Holder”), or registered assigns, the principal sum of Five Million One Hundredand Fifty Five Thousand Dollars ($5,155,000) on January 7, 2033, and to payinterest on said principal sum from December 19, 2002, or from the most recentinterest payment date (each such date, an “Interest Payment Date”) to whichinterest has been paid or duly provided for, quarterly (subject to deferral asset forth herein) in arrears on January 7, April 7, July 7 and October 7 ofeach year, commencing on April 7, 2003, at a variable per annum rate equal toLIBOR (as defined in the Indenture) plus 3.35% (the “Interest Rate”) (provided,that the applicable Interest Rate may not exceed 12.5% through theInterest Payment Date in January, 2008) until the principal hereof shall havebecome due and payable, and on any overdue principal and (without duplicationand to the extent that payment of such interest is enforceable under applicablelaw) on any overdue installment of interest at an annual rate equal to theInterest Rate in effect for each such Extension Period compoundedquarterly.  The amount of interestpayable on any Interest Payment Date shall be computed on the basis of a360-day year and the actual number of days elapsed in the relevant interestperiod.  In the event that any date onwhich the principal or interest is payable on this Debt Security is not aBusiness Day, then payment payable on such date will be made on the nextsucceeding day that is a Business Day, except that, if such Business Day is inthe next succeeding calendar year, such payment shall be made on theimmediately preceding Business Day, in each case with the same force and effectas if made on such date.  The interestinstallment so payable, and punctually paid or duly provided for, on anyInterest Payment Date will, as provided in the Indenture, be paid to the Personin whose name this Debt Security (or one or more Predecessor Securities, asdefined in said Indenture) is registered at the close of business on theregular record date for such interest installment, except that interest and anyDeferred Interest payable on the Maturity Date shall be paid to the Person towhom principal is paid.  Any suchinterest installment not punctually paid or duly provided for shall forthwithcease to be payable to the registered holders on such regular record date andmay be paid to the Person in whose name this Debt Security (or one or morePredecessor Debt Securities) is registered at the close of business on aspecial record date to be fixed by the Trustee for the payment of suchdefaulted interest, notice whereof shall be given to the registered holders ofthe 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 atthe office or agency of the Trustee (or other Paying Agent appointed by theCompany) maintained for that purpose in any coin or currency of the UnitedStates of America that at the time of payment is legal tender for payment ofpublic and private debts; provided, however, that payment ofinterest may be made at the option of the Company by check mailed to theregistered holder at such address as shall appear in the Debt Security Registeror by wire transfer to an account appropriately designated by the holderhereof.  Notwithstanding the foregoing,so long as the holder of this Debt Security is the Institutional Trustee, thepayment of 

 

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the principal of and interest on this Debt Security will be made inimmediately available funds at such place and to such account as may bedesignated by the Trustee.

 

So long as no Event of Default has occurred and is continuing, theCompany shall have the right, from time to time and without causing an Event ofDefault, to defer payments of interest on the Debt Securities by extending theinterest payment period on the Debt Securities at any time and from time totime during the term of the Debt Securities, for up to 20 consecutive quarterlyperiods (each such extended interest payment period, an “Extension Period”),during which Extension Period no interest shall be due and payable (except anyAdditional Interest that may be due and payable).  During any Extension Period, interest will continue to accrue onthe Debt Securities, and interest on such accrued interest (such accruedinterest and interest thereon referred to herein as “Deferred Interest”) willaccrue at an annual rate equal to the Interest Rate in effect for each such ExtensionPeriod, compounded quarterly from the date such Deferred Interest would havebeen payable were it not for the Extension Period, to the extent permitted bylaw.  No Extension Period may end on adate other than an Interest Payment Date. At the end of any such Extension Period the Company shall pay allDeferred Interest then accrued and unpaid on the Debt Securities; provided,however, that no Extension Period may extend beyond the Maturity Dateand 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 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 capitalstock of the Company (A) in connection with any employment contract,benefit plan or other similar arrangement with or for the benefit of one ormore employees, officers, directors or consultants, (B) in connection witha dividend reinvestment or stockholder stock purchase plan or (C) inconnection with the issuance of capital stock of the Company (or securitiesconvertible into or exercisable for such capital stock), as consideration in anacquisition transaction entered into prior to the applicable Extension Period,(b) as a result of any exchange or conversion of any class or series ofthe Company’s capital stock (or any capital stock of a subsidiary of theCompany) for any class or series of the Company’s capital stock or of any classor series of the Company’s indebtedness for any class or series of the Company’scapital stock, (c) the purchase of fractional interests in shares of theCompany’s capital stock pursuant to the conversion or exchange provisions ofsuch capital stock or the security being converted or exchanged, (d) anydeclaration of a dividend in connection with any stockholder’s rights plan, orthe issuance of rights, stock or other property under any stockholder’s rightsplan, or the redemption or repurchase of rights pursuant thereto, or(e) any dividend in the form of stock, warrants, options or other rightswhere 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 isbeing paid or ranks *pari passu* with or junior to suchstock).  Prior to the termination of anyExtension Period, the Company may further extend such period, provided, thatsuch period together with all such previous and further consecutive extensionsthereof shall not exceed 20 consecutive quarterly periods, or extend beyond theMaturity Date.  Upon the termination ofany Extension Period and upon the payment of all Deferred Interest, the Companymay commence a new Extension Period, subject to the foregoing requirements.  No interest or Deferred Interest shall bedue and payable during an Extension Period, except at the end thereof, butDeferred Interest shall accrue upon each installment of interest that wouldotherwise have been due and payable during such Extension Period until suchinstallment is paid.  The Company 

 

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must give the Trustee notice of its election to begin such ExtensionPeriod at least one Business Day prior to the earlier of (i) the nextsucceeding date on which interest on the Debt Securities would have beenpayable except for the election to begin such Extension Period or (ii) thedate such interest is payable, but in any event not later than the relatedregular record date.

 

The indebtedness evidenced by this Debt Security is, to the extentprovided in the Indenture, subordinate and junior in right of payment to theprior payment in full of all Senior Indebtedness, and this Debt Security isissued subject to the provisions of the Indenture with respect thereto.  Each holder of this Debt Security, byaccepting the same, (a) agrees to and shall be bound by such provisions,(b) authorizes and directs the Trustee on such holder’s behalf to takesuch action as may be necessary or appropriate to acknowledge or effectuate thesubordination so provided and (c) appoints the Trustee such holder’sattorney-in-fact for any and all such purposes.  Each holder hereof, by such holder’s acceptance hereof, herebywaives all notice of the acceptance of the subordination provisions containedherein and in the Indenture by each holder of Senior Indebtedness, whether nowoutstanding or hereafter incurred, and waives reliance by each such holder uponsaid provisions.

 

The Company waives demand, presentment for payment, notice ofnonpayment, notice of protest, and all other notices.

 

This Debt Security shall not be entitled to any benefit under theIndenture hereinafter referred to and shall not be valid or become obligatoryfor any purpose until the certificate of authentication hereon shall have beensigned by or on behalf of the Trustee.

 

The provisions of this Debt Security are continued on the reverse sidehereof and such continued provisions shall for all purposes have the sameeffect as though fully set forth at this place.

 

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IN WITNESS WHEREOF, the Company has duly executed this certificate.

 
|                                                                                                                                                |   | HF FINANCIAL CORP. |                                              |
|-----------------------------------------------------------------------------------------------------------------------------------------------------|--------|--------------------|---------------------------------------------------|
|                                                                                                                                                |   |               |                                              |   |
|                                                                                                                                                |   |               |                                              |   |
|                                                                                                                                                |   | By:                |                                              |   |
|                                                                                                                                                |   |               | Curtis L. Hage                                    |   |
|                                                                                                                                                |   |               | Chairman, President and Chief Executive   Officer |
|                                                                                                                                                |   |               |                                              |   |
|                                                                                                                                                |   |               |                                              |   |
| Dated:                  ,        |   |               |                                              |   |

 

CERTIFICATE OFAUTHENTICATION

 

This is one of the Debt Securities referred to in the within-mentionedIndenture.

 
|                                                                                                                                                |   | WILMINGTON TRUST COMPANY, |                                                      |
|-----------------------------------------------------------------------------------------------------------------------------------------------------|--------|---------------------------|-----------------------------------------------------------|
|                                                                                                                                                |   |                      | not in its individual capacity but solely  as the Trustee |   |
|                                                                                                                                                |   |                      |                                                      |   |
|                                                                                                                                                |   |                      |                                                      |   |
|                                                                                                                                                |   | By:                       |                                                      |   |
|                                                                                                                                                |   |                      | Authorized Officer                                        |   |
|                                                                                                                                                |   |                      |                                                      |
|                                                                                                                                                |   |                      |                                                      |   |
| Dated:                  ,        |   |                      |                                                      |   |

 

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[FORM OF REVERSE OF SECURITY]

 

This Debt Security is one of a duly authorized series of DebtSecurities of the Company, all issued or to be issued pursuant to an Indenture(the “Indenture”), dated as of December 19, 2002, duly executed and deliveredbetween the Company and Wilmington Trust Company, as Trustee (the “Trustee”),to which Indenture and all indentures supplemental thereto reference is herebymade for a description of the rights, limitations of rights, obligations,duties and immunities thereunder of the Trustee, the Company and the holders ofthe Debt Securities (referred to herein as the “Debt Securities”) of which thisDebt Security is a part.  The summary ofthe terms of this Debt Security contained herein does not purport to becomplete and is qualified by reference to the Indenture.

 

Upon the occurrence and continuation of a Tax Event, an InvestmentCompany Event or a Capital Treatment Event (each a “Special Event”), this DebtSecurity may become due and payable, in whole but not in part, at any time,within 90 days following the occurrence of such Tax Event, InvestmentCompany Event or Capital Treatment Event (the “Special Redemption Date”), asthe case may be, at the Special Redemption Price.  The Company shall also have the right to redeem this DebtSecurity at the option of the Company, in whole or in part, on any January 7,April 7, July 7 or October 7 on or after January 7, 2008 (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 ofThrift Supervision (the “OTS”) if then required under applicable capitalguidelines or policies of the OTS, upon not less than 30 days’ nor morethan 60 days’ notice.  If the DebtSecurities are only partially redeemed by the Company, the Debt Securities willbe redeemed pro rata**or by lot or by any other method utilizedby the Trustee.

 

“Redemption Price” means 100% of the principal amount of the DebtSecurities being redeemed plus accrued and unpaid interest on such DebtSecurities to the Redemption Date or, in the case of a redemption due to theoccurrence of a Special Event, to the Special Redemption Date if such SpecialRedemption Date is on or after January 7, 2008.

 

“Special Redemption Price” means (1) if theSpecial Redemption Date is before January 7, 2008, the greater of (a) 100% of the principal amount of the Debt Securities being redeemed pursuant to Section 10.02 of the Indentureor (b) as determined by a Quotation Agent, the sum of the present valuesof the principal amount payable as part of the Redemption Price with respect toa redemption as of January 7, 2008,together with the present value of interest payments calculated at a fixed perannum rate of interest equal to 7.125%over the Remaining Life of such Debt Securities, discounted to the SpecialRedemption Date on a quarterly basis (assuming a 360-day year consisting oftwelve 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 RedemptionDate and (2) if the Special Redemption Date is on or after January7, 2008, the Redemption Price for such SpecialRedemption Date.

 

“Comparable Treasury Issue” means, with respect to any SpecialRedemption Date, the United States Treasury security selected by the QuotationAgent as having a maturity 

 

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comparable to the Remaining Life that would be utilized, at the time ofselection and in accordance with customary financial practice, in pricing newissues of corporate debt securities of comparable maturity to the RemainingLife.  If no United States Treasury securityhas a maturity which is within a period from three months before to threemonths after January 7, 2008, the two most closely corresponding United StatesTreasury securities shall be used as the Comparable Treasury Issue, and theTreasury 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 ReferenceTreasury Dealer Quotations for such Special Redemption Date, after excludingthe highest and lowest such Reference Treasury Dealer Quotations, or(b) if the Quotation Agent receives fewer than five such ReferenceTreasury Dealer Quotations, the average of all such Quotations.

 

“Primary Treasury Dealer” means a primary United States Governmentsecurities 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 TreasuryDealer, 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 afterconsultation with the Company.

 

“Reference Treasury Dealer Quotations” means, with respect to each ReferenceTreasury Dealer and any Special Redemption Date, the average, as determined bythe Quotation Agent, of the bid and asked prices for the Comparable TreasuryIssue (expressed in each case as a percentage of its principal amount) quotedin writing to the Trustee by such Reference Treasury Dealer at 5:00 p.m., NewYork City time, on the third Business Day preceding such Special RedemptionDate.

 

“Treasury Rate” means (i) the yield, under the heading whichrepresents the average for the week immediately prior to the date ofcalculation, appearing in the most recently published statistical releasedesignated H.15 (519) or any successor publication which is publishedweekly by the Federal Reserve and which establishes yields on actively tradedUnited States Treasury securities adjusted to constant maturity under thecaption “Treasury Constant Maturities,” for the maturity corresponding to theRemaining Life (if no maturity is within three months before or after theRemaining Life, yields for the two published maturities most closelycorresponding to the Remaining Life shall be determined and the Treasury Rateshall be interpolated or extrapolated from such yields on a straight-linebasis, rounding to the nearest month) or (ii) if such release (or any successorrelease) is not published during the week preceding the calculation date ordoes not contain such yields, the rate per annum equal to the quarterlyequivalent yield to maturity of the Comparable Treasury Issue, calculated usinga price for the Comparable Treasury Issue (expressed as a percentage of itsprincipal amount) equal to the Comparable Treasury Price for such SpecialRedemption Date.  The Treasury Rateshall be calculated on the third Business Day preceding the Special RedemptionDate.

 

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In the event of redemption of this Debt Security in part only, a newDebt Security or Debt Securities for the unredeemed portion hereof will beissued in the name of the holder hereof upon the cancellation hereof.

 

In case an Event of Default, as defined in the Indenture, shall haveoccurred and be continuing, the principal of all of the Debt Securities may bedeclared due and payable, and upon such declaration of acceleration shallbecome due and payable, in the manner, with the effect and subject to theconditions provided in the Indenture.

 

The Indenture contains provisions permitting the Company and theTrustee, with the consent of the holders of not less than a majority inaggregate principal amount of the Debt Securities at the time outstandingaffected thereby, as specified in the Indenture, to execute supplementalindentures for the purpose of adding any provisions to or changing in anymanner or eliminating any of the provisions of the Indenture or of any supplementalindenture or of modifying in any manner the rights of the holders of the DebtSecurities; provided, however, that no such supplementalindenture shall, among other things, without the consent of the holders of eachDebt Security then outstanding and affected thereby (i) extend the fixedmaturity of the Debt Securities, or reduce the principal amount thereof or anyredemption premium thereon, or reduce the rate or extend the time of payment ofinterest thereon, or make payments due on the Debt Securities payable in anycoin or currency other than that provided in the Debt Securities, or impair oraffect the right of any holder of Debt Securities to institute suit for thepayment thereof, or (ii) reduce the aforesaid percentage of Debt Securities,the holders of which are required to consent to any such supplementalindenture.  The Indenture also containsprovisions permitting the holders of a majority in aggregate principal amountof the Debt Securities at the time outstanding, on behalf of all of the holdersof the Debt Securities, to waive any past default in the performance of any ofthe covenants contained in the Indenture, or established pursuant to theIndenture, and its consequences, except a default in payments due on any of theDebt Securities.  Any such consent orwaiver by the registered holder of this Debt Security (unless revoked asprovided in the Indenture) shall be conclusive and binding upon such holder andupon all future holders and owners of this Debt Security and of any Debt Securityissued in exchange herefor or in place hereof (whether by registration oftransfer or otherwise), irrespective of whether or not any notation of suchconsent or waiver is made upon this Debt Security.

 

No reference herein to the Indenture and no provision of this DebtSecurity or of the Indenture shall alter or impair the obligation of theCompany, which is absolute and unconditional, to pay all payments due on thisDebt Security at the time and place and at the rate and in the money hereinprescribed.

 

As provided in the Indenture and subject to certain limitations hereinand therein set forth, this Debt Security is transferable by the registeredholder hereof on the Debt Security Register of the Company, upon surrender ofthis Debt Security for registration of transfer at the office or agency of theTrustee in Wilmington, Delaware accompanied by a written instrument orinstruments of transfer in form satisfactory to the Company or the Trustee dulyexecuted by the registered holder hereof or such holder’s attorney dulyauthorized in writing, and thereupon one or more new Debt Securities ofauthorized denominations and for the same aggregate principal amount will beissued 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 requirepayment of a sum sufficient to cover any tax or other governmental chargepayable in relation thereto.

 

Prior to due presentment for registration of transfer of this DebtSecurity, the Company, the Trustee, any Authenticating Agent, any Paying Agent,any transfer agent and the Debt Security registrar may deem and treat theregistered holder hereof as the absolute owner hereof (whether or not this DebtSecurity shall be overdue and notwithstanding any notice of ownership orwriting hereon) for the purpose of receiving payment of or on account of theprincipal hereof and interest due hereon and for all other purposes, andneither the Company nor the Trustee nor any Authenticating Agent nor any PayingAgent nor any transfer agent nor any Debt Security registrar shall be affectedby any notice to the contrary.

 

No recourse shall be had for the payment of the principal of or theinterest on this Debt Security, or for any claim based hereon, or otherwise inrespect hereof, or based on or in respect of the Indenture, against anyincorporator, stockholder, officer or director, past, present or future, assuch, of the Company or of any predecessor or successor corporation, whether byvirtue of any constitution, statute or rule of law, or by the enforcement ofany assessment or penalty or otherwise, all such liability being, by theacceptance hereof and as part of the consideration for the issuance hereof, expresslywaived and released.

 

The Debt Securities are issuable only in registered certificated formwithout coupons.  As provided in theIndenture and subject to certain limitations herein and therein set forth, DebtSecurities are exchangeable for a like aggregate principal amount of DebtSecurities of a different authorized denomination, as requested by the holdersurrendering the same.

 

All terms used in this Debt Security that are defined in the Indentureshall have the meanings assigned to them in the Indenture.

 

THE LAW OF THE STATE OF NEW YORK SHALL GOVERN THE INDENTURE AND THEDEBT SECURITIES, WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES THEREOF.

 

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