HF FINANCIAL CORP.

 

as Issuer

 

INDENTURE

 

Dated as of July 11, 2002

 

WILMINGTON TRUST COMPANY

 

as Trustee

 

FLOATING RATE JUNIORSUBORDINATED DEBT SECURITIES DUE 2032

 

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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 |

 

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| SECTION 3.08                                                                    | Limitation on  Dividends                                                                             |
|---------------------------------------------------------------------------------|------------------------------------------------------------------------------------------------------|
|                                                                            |                                                                                                 |
| SECTION 3.09                                                                    | Covenants as to  the Trust                                                                           |
|                                                                            |                                                                                                 |
| ARTICLE  IV LISTS AND REPORTS  BY THE COMPANY  AND THE TRUSTEE             |
|                                                                            |
| SECTION 4.01                                                                    | Securityholders’  Lists                                                                         |
|                                                                            |                                                                                                 |
| SECTION  4.02                                                                   | Preservation  and Disclosure of Lists                                                                |
|                                                                            |                                                                                                 |
| ARTICLE  V REMEDIES OF THE TRUSTEE AND SECURITYHOLDERS UPON AN EVENT OF DEFAULT |
|                                                                            |
| SECTION 5.01                                                                    | Events of Default                                                                                    |
|                                                                            |                                                                                                 |
| SECTION  5.02                                                                   | Payment  of Debt Securities on Default; Suit Therefor                                                |
|                                                                            |                                                                                                 |
| SECTION  5.03                                                                   | Application  of Moneys Collected by Trustee                                                          |
|                                                                            |                                                                                                 |
| SECTION  5.04                                                                   | Proceedings  by Securityholders                                                                      |
|                                                                            |                                                                                                 |
| SECTION 5.05                                                                    | Proceedings by  Trustee                                                                              |
|                                                                            |                                                                                                 |
| SECTION  5.06                                                                   | Remedies  Cumulative and Continuing                                                                  |
|                                                                            |                                                                                                 |
| SECTION  5.07                                                                   | Direction  of Proceedings and Waiver of Defaults by Majority of Securityholders                      |
|                                                                            |                                                                                                 |
| SECTION 5.08                                                                    | Notice of Defaults                                                                                   |
|                                                                            |                                                                                                 |
| SECTION 5.09                                                                    | Undertaking to  Pay Costs                                                                            |
|                                                                            |                                                                                                 |
| ARTICLE VI CONCERNING  THE TRUSTEE                                              |
|                                                                            |
| SECTION  6.01                                                                   | Duties  and Responsibilities of Trustee                                                              |
|                                                                            |                                                                                                 |
| SECTION  6.02                                                                   | Reliance  on Documents, Opinions, etc.                                                               |
|                                                                            |                                                                                                 |
| SECTION  6.03                                                                   | No  Responsibility for Recitals, etc.                                                                |
|                                                                            |                                                                                                 |
| SECTION  6.04                                                                   | Trustee,  Authenticating Agent, Paying Agents, Transfer Agents or Registrar May Own  Debt Securities |
|                                                                            |                                                                                                 |
| SECTION 6.05                                                                    | Moneys to be  Held in Trust                                                                          |
|                                                                            |                                                                                                 |
| SECTION  6.06                                                                   | Compensation  and Expenses of Trustee                                                                |

 

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| SECTION  6.07                                | Officers’  Certificate as Evidence                     |
|----------------------------------------------|-------------------------------------------------------------|
|                                         |                                                        |
| SECTION 6.08                                 | Eligibility of  Trustee                                     |
|                                         |                                                        |
| SECTION  6.09                                | Resignation  or Removal of Trustee                          |
|                                         |                                                        |
| SECTION  6.10                                | Acceptance  by Successor Trustee                            |
|                                         |                                                        |
| SECTION 6.11                                 | Succession by  Merger, etc.                                 |
|                                         |                                                        |
| SECTION 6.12                                 | Authenticating  Agents                                      |
|                                         |                                                        |
| ARTICLE VII  CONCERNING THE SECURITYHOLDERS  |
|                                         |
| SECTION 7.01                                 | Action by  Securityholders                                  |
|                                         |                                                        |
| SECTION  7.02                                | Proof  of Execution by Securityholders                      |
|                                         |                                                        |
| SECTION  7.03                                | Who Are  Deemed Absolute Owners                             |
|                                         |                                                        |
| SECTION  7.04                                | Debt  Securities Owned by Company Deemed Not Outstanding    |
|                                         |                                                        |
| SECTION  7.05                                | Revocation  of Consents; Future Holders Bound               |
|                                         |                                                        |
| ARTICLE VIII  SECURITYHOLDERS’ MEETINGS |
|                                         |
| SECTION 8.01                                 | Purposes of Meetings                                        |
|                                         |                                                        |
| SECTION 8.02                                 | Call of  Meetings by Trustee                                |
|                                         |                                                        |
| SECTION  8.03                                | Call  of Meetings by Company or Securityholders             |
|                                         |                                                        |
| SECTION 8.04                                 | Qualifications  for Voting                                  |
|                                         |                                                        |
| SECTION 8.05                                 | Regulations                                                 |
|                                         |                                                        |
| SECTION 8.06                                 | Voting                                                      |
|                                         |                                                        |
| SECTION 8.07                                 | Quorum; Actions                                             |
|                                         |                                                        |
| ARTICLE IX  SUPPLEMENTAL INDENTURES          |
|                                         |
| SECTION  9.01                                | Supplemental  Indentures without Consent of Securityholders |

 

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| 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                                                                   |

 

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| SECTION  14.02                               | Official  Acts by Successor Entity                     |
|----------------------------------------------|--------------------------------------------------------|
|                                         |                                                   |
| SECTION  14.03                               | Surrender of  Company Powers                           |
|                                         |                                                   |
| SECTION 14.04                                | Addresses for  Notices, etc.                           |
|                                         |                                                   |
| SECTION 14.05                                | Governing Law                                          |
|                                         |                                                   |
| SECTION  14.06                               | Evidence  of Compliance with Conditions Precedent      |
|                                         |                                                   |
| SECTION 14.07                                | Non-Business Days                                      |
|                                         |                                                   |
| SECTION  14.08                               | Table  of Contents, Headings, etc.                     |
|                                         |                                                   |
| SECTION 14.09                                | Execution in  Counterparts                             |
|                                         |                                                   |
| SECTION 14.10                                | Separability                                           |
|                                         |                                                   |
| SECTION 14.11                                | Assignment                                             |
|                                         |                                                   |
| SECTION 14.12                                | Acknowledgment  of Rights                              |
|                                         |                                                   |
| ARTICLE XV  SUBORDINATION OF DEBT SECURITIES |
|                                         |
| SECTION 15.01                                | Agreement to  Subordinate                              |
|                                         |                                                   |
| SECTION  15.02                               | Default  on Senior Indebtedness                        |
|                                         |                                                   |
| SECTION  15.03                               | Liquidation;  Dissolution; Bankruptcy                  |
|                                         |                                                   |
| SECTION 15.04                                | Subrogation                                            |
|                                         |                                                   |
| SECTION  15.05                               | Trustee  to Effectuate Subordination                   |
|                                         |                                                   |
| SECTION 15.06                                | Notice by the  Company                                 |
|                                         |                                                   |
| SECTION  15.07                               | Rights  of the Trustee; Holders of Senior Indebtedness |
|                                         |                                                   |
| SECTION  15.08                               | Subordination  May Not Be Impaired                     |
|                                         |                                                   |
| EXHIBITS                                     |
|                                         |                                                   |
| EXHIBIT A                                    | Form of Debt Security                                  |

 

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THIS INDENTURE, dated asof July 11, 2002, between HF Financial Corp., a savings and loan holdingcompany incorporated in Delaware (hereinafter sometimes called the “Company”),and Wilmington Trust Company, a Delaware banking corporation, as trustee(hereinafter sometimes called the “Trustee”).

 

W I T N E S S E T H:

 

WHEREAS, for its lawful corporate purposes, theCompany has duly authorized the issuance of its Floating Rate JuniorSubordinated Debt Securities due 2032 (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 accounting principlesand the term “generally accepted accounting principles” means such accountingprinciples as are generally accepted in the United States at the time of anycomputation.  The words “herein,”“hereof” and “hereunder” and other words of similar import refer to thisIndenture 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 have beenduly adopted by the Board of Directors and to be in full force and effect onthe 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 CommonSecurities issued by the Trust; provided, however, that if anEvent of Default (as defined in the Declaration) has occurred and iscontinuing, the rights of holders of such Common Securities to payment inrespect of distributions and payments upon liquidation, redemption and otherwiseare subordinated 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 Event of Default (as defined in the Declaration) hasoccurred and is continuing, the rights of holders of such Common Securities topayment in respect of distributions and payments upon liquidation, redemptionand otherwise are subordinated to the rights of holders of such CapitalSecurities.

 

“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 July 7, 2007, 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 July 11, 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 7th,April 7th, July 7th and October 7th of eachyear, commencing on October 7, 2002, during the term of this Indenture.

 

“Interest Rate” means a per annum rate of interest,reset quarterly, equal to LIBOR, as determined on the LIBOR Determination Dateimmediately preceding each Interest Payment Date, plus 3.65%; provided, thatthe applicable Interest Rate may not exceed 12.5% through the Interest PaymentDate in July, 2007.

 

“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 forthree-month U.S. Dollar deposits in Europe as determined by theCalculation Agent according 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 October 7, 2032.

 

“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 an AssistantSecretary 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)           Debt Securities theretoforecanceled by the Trustee or the Authenticating Agent or delivered to the Trusteefor cancellation;

###  

### (b)           Debt Securities, or portionsthereof, for the payment or redemption of which moneys in the necessary amountshall have been deposited in trust with the Trustee or with any paying agent(other than the Company) or shall have been set aside and segregated in trustby the Company (if the Company shall act as its own paying agent); provided,that, if such Debt Securities, or portions thereof, are to be redeemedprior to maturity thereof, notice of such redemption shall have been given asprovided in Articles X and XIV or provision satisfactory to the Trusteeshall have been made for giving such notice; and

###  

### (c)           Debt Securities paid pursuantto Section 2.06 or in lieu of or in substitution for which other DebtSecurities shall have been authenticated and delivered pursuant to the terms ofSection 2.06 unless proof satisfactory to the Company and the Trustee ispresented that any such Debt Securities are held by bona fide holders in duecourse.

 

“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,” or other similarterm, means the office of the Trustee at which at any particular time itscorporate trust business shall be principally administered, which at all timesshall be located within the United States and at the time of the execution ofthis Indenture shall be Rodney 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 July 7, 2007.

 

“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 itsprincipal amount) quoted in writing to the Trustee by such Reference TreasuryDealer at 5:00 p.m., New York City time, on the third Business Day precedingsuch Special Redemption Date.

 

“Remaining Life” means, with respect to any DebtSecurity, the period from the Special Redemption Date for such Debt Security toJuly 7, 2007.

 

“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 Trust Office of the Trustee customarily performing functions similarto those 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

 

6

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approval of the OTS ifnot otherwise generally approved, in the instrument creating or evidencing thesame or pursuant to which the same is outstanding, it is provided that suchobligations are not superior or are *paripassu* in right of payment to the Debt Securities.

 

“Special Event” means any of a Tax Event, anInvestment Company 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 July 7, 2007, 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 July7, 2007, together with the present value ofinterest payments calculated at a fixed per annum rate of interest equal to9.95% over the Remaining Life of such Debt Securities, discounted to theSpecial Redemption Date on a quarterly basis (assuming a 360-day yearconsisting of twelve 30-day months) at the Treasury Rate plus .50%, plus, inthe case of either (a) or (b), accrued and unpaid interest on such DebtSecurities to the Special Redemption Date and (2) if the SpecialRedemption Date is on or after July 7, 2007, the Redemption Price for such Special Redemption Date.

 

“Subsidiary” means, with respect to any Person,(i) any corporation at least a majority of the outstanding voting stock ofwhich is owned, directly or indirectly, by such Person or by one or more of itsSubsidiaries, 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 on the Debt Securities is not, orwithin 90 days of the date of such opinion, will not be, deductible by theCompany, in whole or in part, for United States federal income tax purposes; or(iii) the Trust is, or will be within 90 days of the date of suchopinion, subject to more than a de minimis amount of other taxes (includingwithholding 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 II, theDelaware business trust, or any other similar trust created for the purpose ofissuing Capital Securities in connection with the issuance of Debt Securitiesunder this Indenture, of which the Company is the sponsor.

 

“Trust Indenture Act” means the Trust Indenture Act of1939, as amended from time to time, or any successor legislation.

 

“Trust Securities” means Common Securities and CapitalSecurities of HF Financial Capital Trust II.

 

“Trustee” means the Person identified as “Trustee” inthe first paragraph hereof, and, subject to the provisions of Article VIhereof, shall also include its successors and assigns as Trustee hereunder.

 

“United States” means the United States of America andthe District of Columbia.

 

“U.S. Person” has the meaning given to United StatesPerson as set forth in Section 7701(a)(30) of the Internal Revenue Code of1986, as amended.

#  

# ARTICLE IIDEBT SECURITIES

##  

## SECTION 2.01               Authentication and Dating.

 

Upon the execution and delivery of this Indenture, orfrom time to time thereafter, Debt Securities in an aggregate principal amountnot in excess of $5,155,000 may be executed

 

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and delivered by theCompany to the Trustee for authentication, and the Trustee shall thereuponauthenticate and make available for delivery said Debt Securities to or uponthe written order of the Company, signed by its Chairman of the Board ofDirectors, Vice Chairman, President or Chief Financial Officer or one of itsVice Presidents, without any further action by the Company hereunder.  In authenticating such Debt Securities, andaccepting the additional responsibilities under this Indenture in relation tosuch Debt Securities, the Trustee shall be entitled to receive, and (subject toSection 6.01) shall be fully protected in relying upon a copy of any BoardResolution or Board Resolutions relating thereto and, if applicable, anappropriate record of any action taken pursuant to such resolution, in eachcase certified by the Secretary or an Assistant Secretary of the Company as thecase may be.

 

The Trustee shallhave the right to decline to authenticate and deliver any Debt Securities underthis Section if the Trustee, being advised by counsel, determines that suchaction may not lawfully be taken or if a Responsible Officer of the Trustee ingood faith shall determine that such action would expose the Trustee topersonal liability to existing holders.

 

The definitiveDebt Securities shall be typed, printed, lithographed or engraved on steelengraved borders or may be produced in any other manner, all as determined bythe officers executing such Debt Securities, as evidenced by their execution ofsuch Debt Securities.

##  

## SECTION 2.02               Form of Trustee’s Certificateof Authentication.

 

The Trustee’s certificate of authentication on allDebt Securities shall be in substantially the following form:

 

This is one of the Debt Securities referred to in thewithin-mentioned Indenture.

 
|   | 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 formof Exhibit A hereto.  The DebtSecurities shall be in registered, certificated form without coupons and inminimum denominations of $100,000 and any multiple of $1,000 in excess thereof.  The Debt Securities shall be numbered,lettered, or otherwise distinguished in such manner or in accordance with suchplans as the officers executing the same may determine with the approval of theTrustee as evidenced by the execution and authentication thereof.

##  

## SECTION 2.04               Execution of Debt Securities.

 

The Debt Securities shall be signed in the name and onbehalf of the Company by the manual or facsimile signature of its Chairman ofthe Board of Directors, Vice Chairman,

 

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President or ChiefFinancial Officer or one of its Executive Vice Presidents, Senior VicePresidents or Vice Presidents, under its corporate seal which may be affixedthereto or printed, engraved or otherwise reproduced thereon, by facsimile orotherwise, and which need not be attested. Only such Debt Securities as shall bear thereon a certificate ofauthentication substantially in the form herein before recited, executed by theTrustee or the Authenticating Agent by the manual signature of an authorizedofficer, shall be entitled to the benefits of this Indenture or be valid orobligatory for any purpose.  Suchcertificate by the Trustee or the Authenticating Agent upon any Debt Securityexecuted by the Company shall be conclusive evidence that the Debt Security so authenticatedhas been duly authenticated and delivered hereunder and that the holder isentitled to the benefits of this Indenture.

 

In case any officer of the Company who shall havesigned any of the Debt Securities shall cease to be such officer before theDebt Securities so signed shall have been authenticated and delivered by theTrustee or the Authenticating Agent, or disposed of by the Company, such DebtSecurities nevertheless may be authenticated and delivered or disposed of asthough the Person who signed such Debt Securities had not ceased to be suchofficer of the Company; and any Debt Security may be signed on behalf of theCompany by such Persons as, at the actual date of the execution of such DebtSecurity, shall be the proper officers of the Company, although at the date ofthe execution of this Indenture any such person was not such an officer.

 

Every Debt Security shall be dated the date of itsauthentication.

##  

## SECTION 2.05               Exchange and Registration ofTransfer of Debt Securities.

 

The Company shall cause to be kept, at the office oragency maintained for the purpose of registration of transfer and for exchangeas provided in Section 3.02, a register (the “Debt Security Register”) forthe Debt Securities issued hereunder in which, subject to such reasonableregulations as it may prescribe, the Company shall provide for the registrationand transfer of 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 atthe Principal Office of the Trustee or at any office or agency to be maintainedby the Company for such purpose as provided in Section 3.02, and theCompany shall execute, the Company or the Trustee shall register and theTrustee or the Authenticating Agent shall authenticate and make available fordelivery in exchange therefor the Debt Security or Debt Securities which theSecurityholder making the exchange shall be entitled to receive.  Upon due presentment for registration oftransfer of any Debt Security at the Principal Office of the Trustee or at anyoffice or agency of 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.

 

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All Debt Securities presented for registration oftransfer or for exchange or payment shall (if so required by the Company or theTrustee or the Authenticating Agent) be duly endorsed by, or be accompanied by,a written instrument or instruments of transfer in form satisfactory to theCompany and either the Trustee or the Authenticating Agent duly executed by,the holder or such holder’s attorney duly authorized in writing.

 

No service charge shall be made for any exchange orregistration of transfer of Debt Securities, but the Company or the Trustee mayrequire payment of a sum sufficient to cover any tax, fee or other governmentalcharge that may be imposed in connection therewith.

 

The Company or the Trustee shall not be required toexchange or register a transfer of any Debt Security for a period of15 days immediately preceding the date of selection of Debt Securities forredemption.

 

Notwithstanding the foregoing, Debt Securities may notbe transferred except in compliance with the restricted securities legend setforth below, unless otherwise determined by the Company in accordance withapplicable law, which legend 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 REGISTRATION TO AN “ACCREDITED INVESTOR”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 “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**

 

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**WHICH MAY BE OBTAINED FROM THE COMPANY.  THE HOLDER OF THIS SECURITY BY ITSACCEPTANCE HEREOF AGREES THAT IT WILL COMPLY 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.**

** **

**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 WILL DELIVER TO THE REGISTRAR ANDTRANSFER AGENT SUCH CERTIFICATES AND OTHER INFORMATION AS MAY BE REQUIRED BYTHE INDENTURE TO CONFIRM THAT THE TRANSFER COMPLIES WITH THE FOREGOINGRESTRICTIONS.**

** **

**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**

 

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**THAN $100,000 SHALL BE DEEMED TO BE VOID AND OF NO LEGALEFFECT WHATSOEVER. ANY SUCH PURPORTED TRANSFEREE SHALL BE DEEMED NOT TO BE THEHOLDER OF THIS SECURITY FOR ANY PURPOSE, INCLUDING, BUT NOT LIMITED TO, THERECEIPT OF DISTRIBUTIONS ON THIS SECURITY, AND SUCH PURPORTED TRANSFEREE SHALLBE DEEMED TO HAVE NO INTEREST WHATSOEVER IN THIS SECURITY.**

##  

## SECTION 2.06               Mutilated, Destroyed, Lost orStolen Debt Securities.

 

In case any Debt Security shall become mutilated or bedestroyed, lost or stolen, the Company shall execute, and upon its writtenrequest the Trustee shall authenticate and deliver, a new Debt Security bearinga number not contemporaneously outstanding, in exchange and substitution forthe mutilated Debt Security, or in lieu of and in substitution for the DebtSecurity so destroyed, lost or stolen. In every case the applicant for a substituted Debt Security shallfurnish to the Company and the Trustee such security or indemnity as may berequired by them to save each of them harmless, and, in every case ofdestruction, loss or theft, the applicant shall also furnish to the Company andthe Trustee evidence to their satisfaction of the destruction, loss or theft ofsuch Debt Security and of the ownership thereof.

 

The Trustee may authenticate any such substituted DebtSecurity and deliver the same upon the written request or authorization of anyofficer of the Company.  Upon theissuance of any substituted Debt Security, the Company may require the paymentof a sum sufficient to cover any tax or other governmental charge that may beimposed in relation 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 theprovisions of this Section 2.06 by virtue of the fact that any such DebtSecurity is destroyed, lost or stolen shall constitute an additionalcontractual obligation of the Company, whether or not the destroyed, lost orstolen Debt Security shall be found at any time, and shall be entitled to allthe benefits of this Indenture equally and proportionately with any and allother Debt Securities duly issued hereunder. All Debt Securities shall be held and owned upon the express conditionthat, to the extent permitted by applicable law, the foregoing provisions areexclusive with respect to the replacement or payment of mutilated, destroyed,lost or stolen Debt Securities and shall preclude any and all other rights orremedies notwithstanding any law or statute existing or hereafter enacted tothe contrary with respect to the replacement or payment of negotiableinstruments or other securities without their surrender.

##  

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## SECTION 2.07               Temporary Debt Securities.

 

Pending the preparation of definitive Debt Securities,the Company may execute and the Trustee shall authenticate and make availablefor delivery temporary Debt Securities that are typed, printed or lithographed.Temporary Debt 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 the Companymay 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 thenapplicable Interest Rate from and including each Interest Payment Date or, inthe case of the first interest period, the original date of issuance of suchDebt Security to, but excluding, the next succeeding Interest Payment Date or,in the case of the last interest period, the Redemption Date, SpecialRedemption Date or Maturity Date, as applicable, on the principal thereof, onany overdue principal and (to the extent that payment of such interest isenforceable under applicable law) on Deferred Interest and on any overdueinstallment of interest (including Defaulted Interest), payable (subject to theprovisions of Article XII) on each Interest Payment Date commencing onOctober 7, 2002.  Interest and anyDeferred Interest on any Debt Security that is payable, and is punctually paidor duly provided for, on any Interest Payment Date shall be paid to the Personin whose name said Debt Security (or one or more Predecessor Securities) isregistered at the close of business on the regular record date for suchinterest installment, except that interest and any Deferred Interest payable onthe Maturity 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.

 

Any interest on any Debt Security, other than DeferredInterest, that is payable, but is not punctually paid or duly provided for, 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 be

 

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paid by the Company tothe Persons in whose names such Debt Securities (or their respectivePredecessor Securities) are registered at the close of business on a specialrecord date for the payment of such Defaulted Interest, which shall be fixed inthe following manner:  the Company shallnotify the Trustee in writing of the amount of Defaulted Interest proposed tobe paid on each such Debt Security and the date of the proposed payment, and atthe same time the Company shall deposit with the Trustee an amount of moneyequal to the aggregate amount proposed to be paid in respect of such DefaultedInterest or shall make arrangements satisfactory to the Trustee for suchdeposit prior to the date of the proposed payment, such money when deposited tobe held in trust for the benefit of the Persons entitled to such DefaultedInterest as in this clause provided. Thereupon the Trustee shall fix a special record date for the payment ofsuch Defaulted Interest which shall not be more than fifteen nor less thanten days prior to the date of the proposed payment and not less thanten days after the receipt by the Trustee of the notice of the proposedpayment.  The Trustee shall promptlynotify the Company of such special record date and, in the name and at theexpense of the Company, shall cause notice of the proposed payment of suchDefaulted Interest and the special record date therefor to be mailed, firstclass postage prepaid, to each Securityholder at his or her address as itappears in the Debt Security Register, not less than ten days prior tosuch special record date.  Notice of theproposed payment of such Defaulted Interest and the special record datetherefor having been mailed as aforesaid, such Defaulted Interest shall be paidto the Persons in whose names such Debt Securities (or their respectivePredecessor Securities) are registered on such special record date andthereafter the Company shall have no further payment obligation in respect ofthe Defaulted Interest.

 

Any interest scheduled to become payable on anInterest Payment Date occurring during an Extension Period shall not beDefaulted Interest and shall be payable on such other date as may be specifiedin the terms of such Debt Securities.

 

The term “regular record date” as used in this Sectionshall mean the fifteenth day prior to an Interest Payment Date whether ornot such date is a Business Day.

 

Subject to the foregoing provisions of this Section,each Debt Security delivered under this Indenture upon registration of transferof or in exchange for or in lieu of any other Debt Security shall carry therights to interest accrued and unpaid, and to accrue, that were carried by suchother Debt Security.

##  

## SECTION 2.09               Cancellation of DebtSecurities Paid, etc.

 

All Debt Securities surrendered for the purpose ofpayment, redemption, exchange or registration of transfer, shall, ifsurrendered to the Company or any paying agent, be surrendered to the Trusteeand promptly canceled by it, or, if surrendered to the Trustee or anyAuthenticating Agent, shall be promptly canceled by it, and no Debt Securitiesshall be issued in lieu thereof except as expressly permitted by any of theprovisions of this Indenture.  All DebtSecurities canceled by any Authenticating Agent shall be delivered to theTrustee.  The Trustee shall destroy allcanceled Debt Securities unless the Company otherwise directs the Trustee inwriting.  If the Company shall acquireany of the Debt Securities, however, such acquisition shall not operate as aredemption or satisfaction of the indebtedness represented by such DebtSecurities unless and until the same are surrendered to the Trustee forcancellation.

##  

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## SECTION 2.10               Computation of Interest.

###  

### (a)           The amount of interest payablefor any interest period will be computed on the basis of a 360-day year and theactual number of days elapsed in the relevant interest period; provided,however, that upon the occurrence of a Special Event Redemption pursuantto Section 10.02 the amounts payable pursuant to this Indenture shall becalculated as set forth in the definition of Special Redemption Price.

###  

### (b)           LIBOR shall be determined bythe Calculation Agent in accordance with the following provisions:

####  

#### (i)            On the secondLIBOR Business Day (provided, that on such day commercial banksare open for business (including dealings in foreign currency deposits) inLondon (a “LIBOR Banking Day”), and otherwise the next preceding LIBOR BusinessDay that is also a LIBOR Banking Day) prior to January 15th, April15th, July 15th and October 15th (except, withrespect to the first interest payment period, on July 9, 2002) (each such day, a “LIBOR Determination Date”),LIBOR shall equal the rate, as obtained by the Calculation Agent forthree-month U.S. Dollar deposits in Europe, which appears on TeleratePage 3750 (as defined in the International Swaps and DerivativesAssociation, Inc. 1991 Interest Rate and Currency Exchange Definitions) or suchother page as may replace such Telerate Page 3750, as of 11:00 a.m.(London time) on such LIBOR Determination Date, as reported by BloombergFinancial Markets Commodities News; provided, however, that inthe case of the first interest payment period, LIBOR will be interpolated fromLIBOR for three-month U.S. Dollar deposits in Europe and LIBOR forfour-month U.S. Dollar deposits in Europe on a straight-line basis.  “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. If such rate is superseded on TeleratePage 3750 by a corrected rate before 12:00 noon (London time) on thesame LIBOR Determination Date, the corrected rate as so substituted will be theapplicable LIBOR for that LIBOR Determination Date.

####  

#### (ii)           If, on any LIBOR Determination Date, such rate doesnot appear on Telerate Page 3750 as reported by Bloomberg FinancialMarkets Commodities News or such other page as may replace such TeleratePage 3750, the Calculation Agent shall determine the arithmetic mean ofthe offered quotations of the Reference Banks (as defined below) to leadingbanks in the London interbank market for three-month U.S. Dollar depositsin Europe (in an amount determined by the Calculation Agent) by reference torequests for quotations as of approximately 11:00 a.m. (London time) onthe LIBOR Determination Date made by the Calculation Agent to the ReferenceBanks.  If, on any LIBOR DeterminationDate, at least two of the Reference Banks provide such quotations, LIBOR shallequal the arithmetic mean of such quotations. If, on any LIBOR Determination Date, only one or none of the ReferenceBanks provide such a quotation, LIBOR shall be deemed to be the arithmetic meanof the offered quotations that at least two leading banks in the City of NewYork (as selected by the Calculation Agent) are quoting on the relevant LIBORDetermination Date for three-month U.S. Dollar deposits in Europe at approximately11:00 a.m. (London time) (in an amount determined by the

####  

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#### Calculation Agent). As usedherein, “Reference Banks” means four major banks in the London interbank marketselected by the Calculation Agent.

####  

#### (iii)          If the Calculation Agent is required but is unableto determine a rate in accordance with at least one of the procedures providedabove, LIBOR shall be LIBOR in effect on the previous LIBOR Determination Date(whether or not LIBOR for such period was in fact determined on such LIBORDetermination Date).

###  

### (c)           All percentages resulting fromany calculations on the Debt Securities will be rounded, if necessary, to thenearest one hundred-thousandth of a percentage point, with five one-millionthsof a percentage point rounded upward (e.g., 9.876545% (or .09876545) beingrounded to 9.87655% (or .0987655)), and all dollar amounts used in or resultingfrom such calculation will be rounded to the nearest cent (with one-half centbeing rounded upward).

###  

### (d)           On each LIBOR DeterminationDate, the Calculation Agent shall notify, in writing, the Company and thePaying Agent of the applicable Interest Rate in effect for the related InterestPayment Date.  The Calculation Agentshall, upon the request of the holder of any Debt Securities, provide theInterest Rate then in effect.  Allcalculations made by the Calculation Agent in the absence of manifest errorshall be conclusive for all purposes and binding on the Company and the Holdersof the Debt Securities.  The PayingAgent shall be entitled to rely on information received from the CalculationAgent or the Company as to the Interest Rate. The Company shall, from time to time, provide any necessary informationto the Paying Agent relating to any original issue discount and interest on theDebt Securities that is included in any payment and reportable for taxableincome calculation purposes.

##  

## SECTION 2.11               Extension of Interest PaymentPeriod.

 

So long as no Event of Default has occurred and iscontinuing, the Company shall have the right, from time to time and withoutcausing an Event of Default, to defer payments of interest on the DebtSecurities by extending the interest payment period on the Debt Securities, atany time and from time to time during the term of the Debt Securities, for upto twenty consecutive quarterly periods (each such extended interest paymentperiod, an “Extension Period”), during which Extension Period no interest shallbe due and payable (except any Additional Interest that may be due andpayable).  No Extension Period may endon a date other than an Interest Payment Date. During any Extension Period, interest will continue to accrue on theDebt Securities, and interest on such accrued interest (such accrued interestand interest thereon referred to herein as “Deferred Interest”) will accrue, atthe Interest Rate, compounded quarterly from the date such Deferred Interestwould have been payable were it not for the Extension Period, both to theextent permitted by law.  No interest orDeferred Interest shall be due and payable during an Extension Period, exceptat the end thereof.  At the end of anysuch Extension Period the Company shall pay all Deferred Interest then accruedand unpaid on the Debt Securities; provided, however, that noExtension Period may extend beyond the Maturity Date; and providedfurther,however, that during any such Extension Period, the Company shall besubject to the restrictions set forth in Section 3.08 of thisIndenture.  Prior to the termination ofany Extension Period, the Company may further extend such period, provided,that such period together with all such previous and further consecutiveextensions thereof shall not exceed twenty consecutive quarterly periods, orextend beyond the Maturity Date.  Uponthe

 

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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 such ExtensionPeriod or (ii) the date such interest is payable, but in any event notlater than the related regular record date. The Trustee shall give notice of the Company’s election to begin a newExtension Period to the Securityholders.

##  

## SECTION 2.12               CUSIP Numbers.

 

The Company in issuing the Debt Securities may use“CUSIP” numbers (if then generally in use), and, if so, the Trustee shall use“CUSIP” numbers in notices of redemption as a convenience to Securityholders; provided,that any such notice may state that no representation is made as to thecorrectness of such numbers either as printed on the Debt Securities or ascontained in any notice of a redemption and that reliance may be placed only onthe other identification numbers printed on the Debt Securities, and any suchredemption shall not be affected by any defect in or omission of suchnumbers.  The Company will promptlynotify the Trustee in writing of any change in the CUSIP numbers.

 

# ARTICLE IIIPARTICULAR COVENANTS OF THE COMPANY

##  

## SECTION 3.01               Payment of Principal, Premiumand Interest; Agreed Treatment of the Debt Securities.

###  

### (a)           The Company covenants andagrees that it will duly and punctually pay or cause to be paid the principalof and premium, if any, and interest on the Debt Securities at the place, atthe respective times 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)           The Company will treat theDebt Securities as indebtedness, and the interest payable in respect of suchDebt Securities as interest, for all U.S. federal income taxpurposes.  All payments in respect ofsuch Debt Securities will be made free and clear of U.S. withholding taxto any beneficial owner thereof that has provided an Internal Revenue ServiceForm W-8 BEN (or any substitute or successor form) establishing its non-U.S.status for U.S. federal income tax purposes.

###  

### (c)           As of the date of thisIndenture, the Company has no intention to exercise its right underSection 2.11 to defer payments of interest on the Debt Securities bycommencing an Extension Period.

###  

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### (d)           As of the date of thisIndenture, the Company believes that the likelihood that it would exercise itsright under Section 2.11 to defer payments of interest on the DebtSecurities by commencing an Extension Period at any time during which the DebtSecurities are outstanding is remote because of the restrictions that would beimposed on the Company’s ability to declare or pay dividends or distributionson, or to redeem, purchase or make a liquidation payment with respect to, anyof its outstanding equity and on the Company’s ability to make any payments ofprincipal of or interest on, or repurchase or redeem, any of its debtsecurities that rank *pari passu* in all respects with (or juniorin interest to) the Debt Securities.

##  

## SECTION 3.02               Offices for Notices andPayments, etc.

 

So long as any of the Debt Securities remainoutstanding, the Company will maintain in Wilmington, Delaware or in SiouxFalls, South Dakota an office or agency where the Debt Securities may bepresented for payment, an office or agency where the Debt Securities may bepresented for registration of transfer and for exchange as provided in thisIndenture and an office or agency where notices and demands to or upon theCompany in respect of the Debt Securities or of this Indenture may be served.  The Company will give to the Trustee writtennotice of the location of any such office or agency and of any change oflocation thereof.  Until otherwisedesignated from time to time by the Company in a notice to the Trustee, orspecified as contemplated by Section 2.05, such office or agency for allof the above purposes shall be the Principal Office of the Trustee.  In case the Company shall fail to maintainany such office or agency in Wilmington, Delaware or in Sioux Falls, SouthDakota, or shall fail to give such notice of the location or of any change inthe location thereof, presentations and demands may be made and notices may beserved at the Principal Office of the Trustee.

 

In addition to any such office or agency, the Companymay from time to time designate one or more offices or agencies outsideWilmington, Delaware or Sioux Falls, South Dakota where the Debt Securities maybe presented for registration of transfer and for exchange in the mannerprovided in this Indenture, and the Company may from time to time rescind suchdesignation, as the 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 Dakota for 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 Vacanciesin Trustee’s Office.

 

The Company, whenever necessary to avoid or fill avacancy in the office of Trustee, will appoint, in the manner provided inSection 6.09, a Trustee, so that there shall at all times be a Trusteehereunder.

##  

## SECTION 3.04               Provision as to Paying Agent.

###  

### (a)           If the Company shall appoint apaying agent other than the Trustee, it will cause such paying agent to executeand deliver to the Trustee an instrument in which such agent shall agree withthe Trustee, subject to the provision of this Section 3.04,

####  

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#### (i)            that it will hold all sums held by it as suchagent for the payment of the principal of and premium, if any, or interest, ifany, on the Debt Securities (whether such sums have been paid to it by theCompany or by any other obligor on the Debt Securities) in trust for thebenefit of the holders of the Debt Securities;

####  

#### (ii)           that it will give the Trustee prompt written noticeof any failure by the Company (or by any other obligor on the Debt Securities)to make any payment of the principal of and premium, if any, or interest, ifany, on the Debt Securities when the same shall be due and payable; and

####  

#### (iii)          that it will, at any time during the continuance ofany Event of Default, upon the written request of the Trustee, forthwith pay tothe Trustee all sums so held in trust by such paying agent.

###  

### (b)           If the Company shall act asits own paying agent, it will, on or before each due date of the principal ofand premium, if any, or interest, if any, on the Debt Securities, set aside,segregate and hold in trust for the benefit of the holders of the DebtSecurities a sum sufficient to pay such principal, premium or interest sobecoming due and will notify the Trustee in writing of any failure to take suchaction and of any failure by the Company (or by any other obligor under theDebt Securities) to make any payment of the principal of and premium, if any,or interest, if any, on the Debt Securities when the same shall become due andpayable.

 

Whenever the Company shall have one or more payingagents for the Debt Securities, it will, on or prior to each due date of theprincipal of and premium, if any, or interest, if any, on the Debt Securities,deposit with a paying agent a sum sufficient to pay the principal, premium orinterest so becoming due, such sum to be held in trust for the benefit of thePersons entitled thereto and (unless such paying agent is the Trustee) theCompany shall promptly notify the Trustee in writing of its action or failureto act.

###  

### (c)           Anything in this Section 3.04to the contrary notwithstanding, the Company may, at any time, for the purposeof obtaining a satisfaction and discharge with respect to the Debt Securities,or for any other reason, pay, or direct any paying agent to pay to the Trusteeall sums held in trust by the Company or any such paying agent, such sums to beheld by the Trustee upon the same terms and conditions herein contained.

 

### (d)           Anything in thisSection 3.04 to the contrary notwithstanding, the agreement to hold sumsin trust as provided in this Section 3.04 is subject toSections 12.03 and 12.04.

###  

### (e)           The Company hereby initiallyappoints the Trustee to act as paying agent.

##  

## SECTION 3.05               Certificate to Trustee.

 

The Company will deliver to the Trustee on or before120 days after the end of each fiscal year, so long as Debt Securities areoutstanding hereunder, a Certificate stating that in the course of theperformance by the signers of their duties as officers of the Company theywould normally have knowledge of any default by the Company in the performanceof any

 

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covenants containedherein, stating whether or not they have knowledge of any such default and, ifso, specifying each such default of which the signers have knowledge and thenature thereof.

##  

## SECTION 3.06               Additional Interest.

 

If and for so long as the Trust is the holder of allDebt Securities and is subject to any additional taxes (including withholdingtaxes), duties, assessments or other governmental charges as a result of a TaxEvent, the Company will pay such additional amounts (the “Additional Interest”)on the Debt Securities as shall be required so that the net amounts receivedand retained by the Trust after paying taxes, duties, assessments or othergovernmental charges will be equal to the amounts the Trust would have receivedif no such 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 Securitiesremain outstanding, consolidate with, or merge into, any other Person, or mergeinto itself, or sell or convey all or substantially all of its property to anyother Person unless the provisions of Article XI hereof are complied with.

##  

## SECTION 3.08               Limitation on Dividends.

 

If Debt Securities are initially issued to the Trustor a trustee of such Trust in connection with the issuance of Trust Securitiesby the Trust (regardless of whether Debt Securities continue to be held by suchTrust) and (i) there shall have occurred and be continuing an Event ofDefault, (ii) the Company shall be in default with respect to its paymentof any 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 capital stockof the Company (I) in connection with any employment contract, benefitplan or other similar arrangement with or for the benefit of one or moreemployees, officers, directors or consultants, (II) in connection with adividend reinvestment or stockholder stock purchase plan or (III) inconnection with the

 

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issuance of capital stockof the Company (or securities convertible into or exercisable for such capitalstock), as consideration in an acquisition transaction entered into prior tothe occurrence of (i), (ii) or (iii) above, (b) as a result of anyexchange or conversion of any class or series of the Company’s capital stock(or any capital stock of a subsidiary of the Company) for any class or seriesof the Company’s capital stock or of any class or series of the Company’sindebtedness for any class or series of the Company’s capital stock,(c) the purchase of fractional interests in shares of the Company’scapital stock pursuant to the conversion or exchange provisions of such capitalstock or the security being converted or exchanged, (d) any declaration ofa dividend in connection with any stockholder’s rights plan, or the issuance ofrights, stock or other property under any stockholder’s rights plan, or theredemption or repurchase of rights pursuant thereto, or (e) any dividendin the form of stock, warrants, options or other rights where the dividendstock or the stock issuable upon exercise of such warrants, options or otherrights is the same stock as that on which the dividend is being paid or ranks *pari passu*with or junior to such stock).

##  

## SECTION 3.09               Covenants as to the Trust.

 

For so long as such Trust Securities remainoutstanding, the Company shall maintain 100% ownership of the Common Securities;provided, however, that any permitted successor of the Companyunder this Indenture that is a U.S. Person may succeed to the Company’sownership of such Common Securities. The Company, as owner of the Common Securities, shall use commercially reasonableefforts to cause the Trust (a) to remain a statutory business trust,except in connection with a distribution of Debt Securities to the holders ofTrust Securities in liquidation of the Trust, the redemption of all of theTrust Securities or certain mergers, consolidations or amalgamations, each aspermitted by the Declaration, (b) to otherwise continue to be classifiedas a grantor trust for United States federal income tax purposes and(c) to cause each holder of Trust Securities to be treated as owning anundivided beneficial interest in the Debt Securities.

 

# ARTICLE IVLISTS AND REPORTS BY THE COMPANY AND THE TRUSTEE

##  

## SECTION 4.01               Securityholders’ Lists.

 

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

###  

### (a)           on each regular record datefor an Interest Payment Date, a list, in such form as the Trustee mayreasonably require, of the names and addresses of the Securityholders of theDebt Securities as of such record date; and

###  

### (b)           at such other times as theTrustee may request in writing, within 30 days after the receipt by theCompany of any such request, a list of similar form and content as of a datenot more than 15 days prior to the time such list is furnished;

 

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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 ofLists.

###  

### (a)           The Trustee shall preserve, inas current a form as is reasonably practicable, all information as to the namesand addresses of the holders of Debt Securities (1) contained in the mostrecent list furnished to it as provided in Section 4.01 or (2) receivedby it in the capacity of Debt Securities registrar (if so acting)hereunder.  The Trustee may destroy anylist furnished to it as provided in Section 4.01 upon receipt of a newlist so furnished.

###  

### (b)           In case three or more holdersof Debt Securities (hereinafter referred to as “applicants”) apply in writingto the Trustee and furnish to the Trustee reasonable proof that each suchapplicant has owned a Debt Security for a period of at least six monthspreceding the date of such application, and such application states that theapplicants desire to communicate with other holders of Debt Securities withrespect to their rights under this Indenture or under such Debt Securities andis accompanied by a copy of the form of proxy or other communication which suchapplicants propose to transmit, then the Trustee shall within five BusinessDays after the receipt of such application, at its election, either:

 

#### (i)            afford such applicants access to the informationpreserved at the time by the Trustee in accordance with the provisions ofsubsection (a) of this Section 4.02, or

####  

#### (ii)           inform such applicants as to the approximate numberof holders of Debt Securities whose names and addresses appear in theinformation preserved at the time by the Trustee in accordance with theprovisions of subsection (a) of this Section 4.02, and as to theapproximate cost of mailing to such Securityholders the form of proxy or othercommunication, if any, specified in such application.

 

If the Trustee shall elect not to afford suchapplicants access to such information, the Trustee shall, upon the writtenrequest of such applicants, mail to each Securityholder of Debt Securitieswhose name and address appear in the information preserved at the time by theTrustee in accordance with the provisions of subsection (a) of thisSection 4.02 a copy of the form of proxy or other communication which isspecified in such request with reasonable promptness after a tender to theTrustee of the material to be mailed and of payment, or provision for the payment,of the reasonable expenses of mailing, unless within five days after suchtender, the Trustee shall mail to such applicants and file with the Securitiesand Exchange Commission, if permitted or required by applicable law, togetherwith a copy of the material to be mailed, a written statement to the effectthat, in the opinion of the Trustee, such mailing would be contrary to the bestinterests of the holders of all Debt Securities, as the case may be, or wouldbe in violation of applicable law.  Suchwritten statement shall specify the basis of such opinion.  If said Commission, as permitted or requiredby applicable law, after opportunity for a hearing upon the objectionsspecified in the written statement so filed, shall enter an order refusing tosustain any of such objections or if, after the entry of an order sustainingone or more of such objections, said Commission shall find, after notice andopportunity for hearing, that all the objections so sustained have been met andshall enter an order so declaring, the Trustee shall

 

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mail copies of suchmaterial to all such Securityholders with reasonable promptness after the entryof such order and the renewal of such tender; otherwise the Trustee shall berelieved of any obligation or duty to such applicants respecting theirapplication.

###  

### (c)           Each and every holder of DebtSecurities, by receiving and holding the same, agrees with the Company and theTrustee that neither the Company nor the Trustee nor any paying agent shall beheld accountable by reason of the disclosure of any such information as to thenames and addresses of the holders of Debt Securities in accordance with theprovisions of subsection (b) of this Section 4.02, regardless of thesource from which such information was derived, and that the Trustee shall notbe held accountable by reason of mailing any material pursuant to a requestmade under said subsection (b).

#  

# ARTICLE VREMEDIES OF THE TRUSTEE AND SECURITYHOLDERSUPON AN EVENT OF DEFAULT

##  

## SECTION 5.01               Events of Default.

 

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

###  

### (a)           the Company defaults in thepayment of any interest upon any Debt Security when it becomes due and payable,and continuance of such default for a period of 30 days; for the avoidanceof doubt, an extension of any interest payment period by the Company inaccordance with Section 2.11 of this Indenture shall not constitute adefault under this clause 5.01(a); or

###  

### (b)           the Company defaults in thepayment of all or any part of the principal of (or premium, if any, on) anyDebt Securities as and when the same shall become due and payable either atmaturity, upon redemption, by declaration of acceleration or otherwise; or

###  

### (c)           the Company defaults in theperformance of, or breaches, any of its covenants or agreements inSections 3.06, 3.07, 3.08 and 3.09 of this Indenture (other than acovenant 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 principal amountof the outstanding Debt Securities, a written notice specifying such default orbreach and requiring it to be remedied and stating that such notice is a“Notice of Default” hereunder; or

###  

### (d)           a court having jurisdiction inthe premises shall enter a decree or order for relief in respect of the Companyin an involuntary case under any applicable bankruptcy, insolvency or othersimilar law now or hereafter in effect, or appoints a receiver, liquidator,assignee, custodian, trustee, sequestrator (or similar official) of the Companyor for any substantial part of its property, or orders the winding-up orliquidation of its affairs and such decree or order shall remain unstayed andin effect for a period of 90 consecutive days; or

###  

### (e)           the Company shall commence avoluntary case under any applicable bankruptcy, insolvency or other similar lawnow or hereafter in effect, shall consent to the entry

###  

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### of an orderfor relief in an involuntary case under any such law, or shall consent to theappointment of or taking possession by a receiver, liquidator, assignee,trustee, custodian, sequestrator (or other similar official) of the Company orof any substantial part of its property, or shall make any general assignmentfor the benefit of creditors, or shall fail generally to pay its debts as theybecome due; or

###  

### (f)            the Trust shall havevoluntarily or involuntarily liquidated, dissolved, wound-up its business orotherwise terminated its existence except in connection with (1) thedistribution of the Debt Securities to holders of the Trust Securities inliquidation of their interests in the Trust, (2) the redemption of all ofthe outstanding Trust Securities or (3) certain mergers, consolidations oramalgamations, each as permitted by the Declaration.

 

If an Event of Default occurs and is continuing withrespect to the Debt Securities, then, and in each and every such case, unlessthe principal of the Debt Securities shall have already become due and payable,either the Trustee or the holders of not less than 25% in aggregate principalamount of the Debt Securities then outstanding hereunder, by notice in writingto the Company (and to the Trustee if given by Securityholders), may declarethe entire principal of the Debt Securities and the interest accrued, butunpaid, thereon, if any, to be due and payable immediately, and upon any suchdeclaration the same shall become immediately due and payable.

 

The foregoing provisions, however, are subject to thecondition that if, at any time after the principal of the Debt Securities shallhave been so declared due and payable, and before any judgment or decree forthe payment of the moneys due shall have been obtained or entered ashereinafter provided, (i) the Company shall pay or shall deposit with theTrustee a sum sufficient to pay all matured installments of interest upon allthe Debt Securities and the principal of and premium, if any, on the DebtSecurities which shall have become due otherwise than by acceleration (with interestupon such principal and premium, if any, and Deferred Interest, to the extentpermitted by law) and such amount as shall be sufficient to cover reasonablecompensation to the Trustee and each predecessor Trustee, their respectiveagents, attorneys and counsel, and all other amounts due to the Trusteepursuant to Section 6.06, if any, and (ii) all Events of Defaultunder this Indenture, other than the non-payment of the principal of orpremium, if any, on Debt Securities which shall have become due by acceleration,shall have been cured, waived or otherwise remedied as provided herein, thenand in every such case the holders of a majority in aggregate principal amountof the Debt Securities then outstanding, by written notice to the Company andto the Trustee, may waive all defaults and rescind and annul such declarationand its consequences, but no such waiver or rescission and annulment shallextend to or shall affect any subsequent default or shall impair any rightconsequent thereon.

 

In case the Trustee shall have proceeded to enforceany right under this Indenture and such proceedings shall have beendiscontinued or abandoned because of such rescission or annulment or for anyother reason or shall have been determined adversely to the Trustee, then andin every such case the Company, the Trustee and the holders of the DebtSecurities shall be restored respectively to their several positions and rightshereunder, and all rights, remedies and powers of the Company, the Trustee andthe holders of the Debt Securities shall continue as though no such proceedinghad been taken.

##  

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## SECTION 5.02               Payment of Debt Securities onDefault; Suit Therefor.

 

The Company covenants that upon the occurrence of anEvent of Default pursuant to clause 5.01(a) or 5.01(b) and upon demand ofthe Trustee, the Company will pay to the Trustee, for the benefit of theholders of the Debt Securities, the whole amount that then shall have becomedue and payable on all Debt Securities for principal and premium, if any, orinterest, or both, as the case may be, including Deferred Interest accrued onthe Debt Securities; and, in addition thereto, such further amount as shall besufficient to cover the costs and expenses of collection, including areasonable compensation to the Trustee, its agents, attorneys and counsel, andany other amounts due to the Trustee under Section 6.06.  In case the Company shall fail forthwith topay such amounts upon such demand, the Trustee, in its own name and as trusteeof an express trust, shall be entitled and empowered to institute any actionsor proceedings at law or in equity for the collection of the sums so due andunpaid, and may prosecute any such action or proceeding to judgment or finaldecree, and may enforce any such judgment or final decree against the Companyor any other obligor on such Debt Securities and collect in the manner providedby law out of the property of the Company or any other obligor on such DebtSecurities wherever situated the moneys adjudged or decreed to be payable.

 

In case there shall be pending proceedings for thebankruptcy or for the reorganization of the Company or any other obligor on theDebt Securities under Bankruptcy Law, or in case a receiver or trustee shallhave been appointed for the property of the Company or such other obligor, orin the case of any other similar judicial proceedings relative to the Companyor other obligor upon the Debt Securities, or to the creditors or property ofthe Company or such other obligor, the Trustee, irrespective of whether theprincipal of the Debt Securities shall then be due and payable as thereinexpressed or by declaration of acceleration or otherwise and irrespective ofwhether the Trustee shall have made any demand pursuant to the provisions ofthis Section 5.02, shall be entitled and empowered, by intervention insuch proceedings or otherwise, to file and prove a claim or claims for thewhole amount 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 and counsel, and for reimbursement of all other amounts dueto the Trustee under Section 6.06) and of the Securityholders allowed insuch judicial proceedings relative to the Company or any other obligor on theDebt Securities, 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.

 

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Nothing herein contained shall be construed toauthorize the Trustee to authorize or consent to or accept or adopt on behalfof any Securityholder any plan of reorganization, arrangement, adjustment orcomposition affecting the Debt Securities or the rights of any holder thereofor to authorize the Trustee to vote in respect of the claim of anySecurityholder in any such proceeding.

 

All rights of action and of asserting claims underthis Indenture, or under any of the Debt Securities, may be enforced by theTrustee without the possession of any of the Debt Securities, or the productionthereof at any trial or other proceeding relative thereto, and any such suit orproceeding instituted by the Trustee shall be brought in its own name astrustee of an express trust, and any recovery of judgment shall be for theratable benefit of the holders of the Debt Securities.

 

In any proceedings brought by the Trustee (and alsoany proceedings involving the interpretation of any provision of this Indentureto which the Trustee shall be a party) the Trustee shall be held to representall the holders of the Debt Securities, and it shall not be necessary to makeany holders of the Debt Securities parties to any such proceedings.

##  

## SECTION 5.03               Application of MoneysCollected by Trustee.

 

Any moneys collected by the Trustee shall be appliedin the following order, at the date or dates fixed by the Trustee for thedistribution of such moneys, upon presentation of the several Debt Securitiesin respect of which moneys have been collected, and stamping thereon thepayment, if only partially paid, and upon surrender thereof if fully paid:

 

First: To the payment of costs and expenses incurredby, and reasonable fees of, the Trustee, its agents, attorneys and counsel, andof all other amounts due to the Trustee under Section 6.06;

 

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

 

Third:  To thepayment of the amounts then due and unpaid upon Debt Securities for principal(and premium, if any), and interest on the Debt Securities, in respect of whichor for the benefit of which money has been collected, ratably, withoutpreference or priority of any kind, according to the amounts due on such DebtSecurities for principal (and premium, if any) and interest, respectively; and

 

Fourth: The balance, if any, to the Company.

##  

## SECTION 5.04               Proceedings by Securityholders.

 

No holder of any Debt Security shall have any right toinstitute any suit, action or proceeding for any remedy hereunder, unless suchholder previously 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

 

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against the costs,expenses and liabilities to be incurred thereby, and the Trustee for60 days after its receipt of such notice, request and offer of indemnityshall have failed to institute any such action, suit or proceeding; provided,that no holder of Debt Securities shall have any right to prejudice therights of any other holder of Debt Securities, obtain priority or preferenceover any other such holder or enforce any right under this Indenture except inthe manner herein provided and for the equal, ratable and common benefit of allholders of Debt Securities.

 

Notwithstanding any other provisions in thisIndenture, however, the right of any holder of any Debt Security to receivepayment of the principal of, premium, if any, and interest on such DebtSecurity when due, or to institute suit for the enforcement of any suchpayment, shall not be impaired or affected without the consent of such holder.  For the protection and enforcement of theprovisions of this Section, each and every Securityholder and the Trustee shallbe entitled to such relief as can be given either at law or in equity.

 

## SECTION 5.05               Proceedings by Trustee.

 

In case of an Event of Default hereunder the Trusteemay in its discretion proceed to protect and enforce the rights vested in it bythis Indenture by such appropriate judicial proceedings as the Trustee shalldeem most effectual to protect and enforce any of such rights, either by suitin equity or by action at law or by proceeding in bankruptcy or otherwise,whether for the specific enforcement of any covenant or agreement contained inthis Indenture or in aid of the exercise of any power granted in thisIndenture, or to enforce any other legal or equitable right vested in theTrustee by this Indenture or by law.

##  

## SECTION 5.06               Remedies Cumulative andContinuing.

 

Except as otherwise provided in Section 2.06, allpowers and remedies given by this Article V to the Trustee or to theSecurityholders shall, to the extent permitted by law, be deemed cumulative andnot exclusive of any other powers and remedies available to the Trustee or theholders of the Debt Securities, by judicial proceedings or otherwise, toenforce the performance or observance of the covenants and agreements containedin this Indenture or otherwise established with respect to the Debt Securities,and no delay or omission of the Trustee or of any holder of any of the DebtSecurities to exercise any right or power accruing upon any Event of Defaultoccurring and continuing as aforesaid shall impair any such right or power, orshall be construed to be a waiver of any such default or an acquiescencetherein; and, subject to the provisions of Section 5.04, every power andremedy given by this Article V or by law to the Trustee or to theSecurityholders may be exercised from time to time, and as often as shall bedeemed expedient, by the Trustee or by the Securityholders.

##  

## SECTION 5.07               Direction of Proceedings and Waiverof Defaults by Majority of Securityholders.

 

The holders of a majority in aggregate principalamount of the Debt Securities affected (voting as one class) at the timeoutstanding shall have the right to direct the time, method and place ofconducting any proceeding for any remedy available to the Trustee, orexercising any trust or power conferred on the Trustee with respect to suchDebt Securities; provided, however, that (subject to theprovisions of Section 6.01) the Trustee shall have the

 

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right to decline tofollow any such direction if the Trustee shall determine that the action sodirected would be unjustly prejudicial to the holders not taking part in suchdirection or if the Trustee being advised by counsel determines that the actionor proceeding so directed may not lawfully be taken or if a Responsible Officerof the Trustee shall determine that the action or proceedings so directed wouldinvolve the Trustee in personal liability. Prior to any declaration accelerating the maturity of the DebtSecurities, the holders of a majority in aggregate principal amount of the DebtSecurities at the time outstanding may on behalf of the holders of all of theDebt Securities waive (or modify any previously granted waiver of) any pastdefault or Event of Default and its consequences, except a default (a) inthe payment of principal of, premium, if any, or interest on any of the DebtSecurities, (b) in respect of covenants or provisions hereof which cannotbe modified or amended without the consent of the holder of each Debt Securityaffected, or (c)  in respect of the covenants contained inSection 3.09; provided, however, that if the Debt Securitiesare held by the Trust or a trustee of such trust, such waiver or modificationto such waiver shall not be effective until the holders of a majority inliquidation preference of the Trust Securities of the Trust shall haveconsented to such waiver or modification to such waiver; provided, further,that if the consent of the holder of each outstanding Debt Security isrequired, such waiver shall not be effective until each holder of the TrustSecurities 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 aResponsible Officer of the Trustee shall have actual knowledge or receivedwritten notice of the occurrence of a default with respect to the DebtSecurities, mail to all Securityholders, as the names and addresses of suchholders appear upon the Debt Security Register, notice of all defaults withrespect to the Debt Securities known to the Trustee, unless such defaults shallhave been cured before the giving of such notice (the term “defaults” for thepurpose of this Section 5.08 being hereby defined to be the eventsspecified in subsections (a), (b), (c), (d) and (e) of Section 5.01,not including periods of grace, if any, provided for therein); provided,that, except in the case of default in the payment of the principal of,premium, if any, or interest on any of the Debt Securities, the Trustee shallbe protected in withholding such notice if and so long as a Responsible Officerof the Trustee in good faith determines that the withholding of such notice isin the interests of the Securityholders.

##  

## SECTION 5.09               Undertaking to Pay Costs.

 

All parties to this Indenture agree, and each holderof any Debt Security by such holder’s acceptance thereof shall be deemed tohave agreed, that any court may in its discretion require, in any suit for theenforcement of any right or remedy under this Indenture, or in any suit againstthe Trustee for any action taken or omitted by it as Trustee, the filing by anyparty litigant in such suit of an undertaking to pay the costs of such suit,and that such court may in its

 

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discretion assessreasonable costs, including reasonable attorneys’ fees and expenses, againstany party litigant in such suit, having due regard to the merits and good faithof the claims or defenses made by such party litigant; but the provisions ofthis Section 5.09 shall not apply to any suit instituted by the Trustee,to any suit instituted by any Securityholder, or group of Securityholders,holding in the aggregate more than 10% in principal amount of the DebtSecurities outstanding, or to any suit instituted by any Securityholder for theenforcement of the payment of the principal of (or premium, if any) or intereston any Debt Security against the Company on or after the same shall have becomedue and payable.

#  

# ARTICLE VICONCERNING THE TRUSTEE

##  

## SECTION 6.01               Duties and Responsibilities ofTrustee.

 

With respect to the holders of Debt Securities issuedhereunder, the Trustee, prior to the occurrence of an Event of Default withrespect to the Debt Securities and after the curing or waiving of all Events ofDefault which may have occurred, with respect to the Debt Securities,undertakes to perform such duties and only such duties as are specifically setforth in this Indenture.  In case anEvent of Default with respect to the Debt Securities has occurred (which hasnot been cured or waived) the Trustee shall exercise such of the rights andpowers vested in it by this Indenture, and use the same degree of care andskill in their exercise, as a prudent person would exercise or use under thecircumstances in the conduct of such person’s own affairs.

 

No provision of this Indenture shall be construed torelieve the Trustee from liability for its own negligent action, its ownnegligent failure to act or its own willful misconduct, except that:

###  

### (a)           prior to the occurrence of anEvent of Default with respect to the Debt Securities and after the curing orwaiving of all Events of Default which may have occurred:

####  

#### (i)            the duties and obligations of the Trustee withrespect to the Debt Securities shall be determined solely by the expressprovisions of this Indenture, and the Trustee shall not be liable except forthe performance of such duties and obligations with respect to the DebtSecurities as are specifically set forth in this Indenture, and no impliedcovenants or obligations shall be read into this Indenture against the Trustee;and

####  

#### (ii)           in the absence of bad faith on the part of theTrustee, the Trustee may conclusively rely, as to the truth of the statementsand the correctness of the opinions expressed therein, upon any certificates oropinions furnished to the Trustee and conforming to the requirements of thisIndenture; but, in the case of any such certificates or opinions which by anyprovision hereof are specifically required to be furnished to the Trustee, theTrustee shall be under a duty to examine the same to determine whether or notthey conform on their face to the requirements of this Indenture;

###  

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### (b)           the Trustee shall not beliable for any error of judgment made in good faith by a Responsible Officer orOfficers of the Trustee, unless it shall be proved that the Trustee wasnegligent in ascertaining the pertinent facts;

###  

### (c)           the Trustee shall not beliable with respect to any action taken or omitted to be taken by it in goodfaith, in accordance with the direction of the Securityholders pursuant toSection 5.07, relating to the time, method and place of conducting anyproceeding for any remedy available to the Trustee, or exercising any trust orpower conferred upon the Trustee, under this Indenture; and

###  

### (d)           the Trustee shall not becharged with knowledge of any Default or Event of Default with respect to theDebt Securities unless either (1) a Responsible Officer shall have actualknowledge of such Default or Event of Default or (2) written notice ofsuch Default or Event of Default shall have been given to the Trustee by theCompany or any other obligor on the Debt Securities or by any holder of theDebt Securities, except with respect to an Event of Default pursuant toSections 5.01(a) or 5.01(b) hereof (other than an Event of Defaultresulting from the default in the payment of Additional Interest or premium, ifany, if the Trustee does not have actual knowledge or written notice that suchpayment is due and payable), of which the Trustee shall be deemed to haveknowledge.

 

None of the provisions contained in this Indentureshall require the Trustee to expend or risk its own funds or otherwise incurpersonal financial liability in the performance of any of its duties or in theexercise of any of its rights or powers.

##  

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

 

Except as otherwise provided in Section 6.01:

###  

### (a)           the Trustee may conclusivelyrely and shall be fully protected in acting or refraining from acting upon anyresolution, certificate, statement, instrument, opinion, report, notice,request, consent, order, bond, note, debenture or other paper or documentbelieved by it in good faith to be genuine and to have been signed or presentedby the proper party or parties;

###  

### (b)           any request, direction, orderor demand of the Company mentioned herein shall be sufficiently evidenced by anOfficers’ Certificate (unless other evidence in respect thereof be hereinspecifically prescribed); and any Board Resolution may be evidenced to theTrustee by a copy thereof certified by the Secretary or an Assistant Secretaryof the Company;

###  

### (c)           the Trustee may consult withcounsel of its selection and any advice or Opinion of Counsel shall be full andcomplete authorization and protection in respect of any action taken, sufferedor omitted by it hereunder in good faith and in accordance with such advice orOpinion of Counsel;

###  

### (d)           the Trustee shall be under noobligation to exercise any of the rights or powers vested in it by thisIndenture at the request, order or direction of any of the Securityholders,pursuant to the provisions of this Indenture, unless such Securityholders shallhave offered to the Trustee reasonable security or indemnity against the costs,expenses and liabilities which may be incurred therein or thereby;

###  

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### (e)           the Trustee shall not beliable for any action taken or omitted by it in good faith and believed by itto be authorized or within the discretion or rights or powers conferred upon itby this Indenture; nothing contained herein shall, however, relieve the Trusteeof the obligation, upon the occurrence of an Event of Default with respect tothe Debt Securities (that has not been cured or waived) to exercise withrespect to the Debt Securities such of the rights and powers vested in it bythis Indenture, and to use the same degree of care and skill in their exercise,as a prudent person would exercise or use under the circumstances in theconduct of such person’s own affairs;

###  

### (f)            the Trustee shall not bebound to make any investigation into the facts or matters stated in anyresolution, certificate, statement, instrument, opinion, report, notice,request, consent, order, approval, bond, debenture, coupon or other paper ordocument, unless requested in writing to do so by the holders of not less thana 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)           the Trustee may execute any ofthe trusts or powers hereunder or perform any duties hereunder either directlyor by or through agents (including any Authenticating Agent) or attorneys, andthe Trustee shall not be responsible for any misconduct or negligence on thepart of any such agent or attorney appointed by it with due care.

##  

## SECTION 6.03               No Responsibility forRecitals, etc.

 

The recitals contained herein and in the DebtSecurities (except in the certificate of authentication of the Trustee or theAuthenticating Agent) shall be taken as the statements of the Company and theTrustee and the Authenticating Agent assume no responsibility for thecorrectness of the same.  The Trustee andthe Authenticating Agent make no representations as to the validity orsufficiency of this Indenture or of the Debt Securities.  The Trustee and the Authenticating Agentshall not be accountable for the use or application by the Company of any DebtSecurities or the proceeds of any Debt Securities authenticated and deliveredby the Trustee or the Authenticating Agent in conformity with the provisions ofthis Indenture.

##  

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

 

The Trustee or any Authenticating Agent or any payingagent or any transfer agent or any Debt Security registrar, in its individualor any other capacity, may become the owner or pledgee of Debt Securities withthe same rights it would have if it were not Trustee, Authenticating Agent,paying agent, transfer agent or Debt Security registrar.

##  

## SECTION 6.05               Moneys to be Held in Trust.

 

Subject to the provisions of Section 12.04, allmoneys received by the Trustee or any paying agent shall, until used or appliedas herein provided, be held in trust for the purpose

 

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for which they werereceived, but need not be segregated from other funds except to the extentrequired by law.  The Trustee and anypaying agent shall be under no liability for interest on any money received byit hereunder except 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 Assistant Treasurerof the Company.

##  

## SECTION 6.06               Compensation and Expenses ofTrustee.

 

The Company covenants and agrees to pay to the Trusteefrom time to time, and the Trustee shall be entitled to, such compensation asshall be agreed to in writing between the Company and the Trustee (which shallnot be limited by any provision of law in regard to the compensation of atrustee of an express trust), and the Company will pay or reimburse the Trusteeupon its written request for all documented reasonable expenses, disbursementsand advances 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 oradministration of this trust, including the costs and expenses of defendingitself against any claim or liability in the premises.  The obligations of the Company under thisSection 6.06 to compensate and indemnify the Trustee and to pay orreimburse the Trustee for documented expenses, disbursements and advances shallconstitute additional indebtedness hereunder. Such additional indebtedness shall be secured by a lien prior to that ofthe Debt Securities upon all property and funds held or collected by theTrustee as such, except funds held in trust for the benefit of the holders ofparticular Debt Securities.

 

Without prejudice to any other rights available to theTrustee under applicable law, when the Trustee incurs expenses or rendersservices in connection with an Event of Default specified insubsections (d), (e) or (f) of Section 5.01, the expenses (includingthe reasonable charges and expenses of its counsel) and the compensation forthe services are intended to constitute expenses of administration under anyapplicable federal or state bankruptcy, insolvency or other similar law.

 

The provisions of this Section shall survive the resignationor removal of the Trustee and the defeasance or other termination of thisIndenture.

##  

## SECTION 6.07               Officers’ Certificate asEvidence.

 

Except as otherwise provided in Sections 6.01 and6.02, whenever in the administration of the provisions of this Indenture theTrustee shall deem it necessary or desirable that a matter be proved orestablished prior to taking or omitting any action hereunder, such

 

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matter (unless otherevidence in respect thereof be herein specifically prescribed) may, in theabsence of negligence or bad faith on the part of the Trustee, be deemed to beconclusively proved and established by an Officers’ Certificate delivered tothe Trustee, and such certificate, in the absence of negligence or bad faith onthe part of the Trustee, shall be full warrant to the Trustee for any actiontaken or omitted by it under the provisions of this Indenture upon the faiththereof.

##  

## SECTION 6.08               Eligibility of Trustee.

 

The Trustee hereunder shall at all times be aU.S. Person that is a banking corporation 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 publishes reports of condition at leastannually, pursuant to law or to the requirements of the aforesaid supervisingor examining authority, then for the purposes of this Section 6.08 thecombined capital and surplus of such corporation shall be deemed to be itscombined capital and surplus as set forth in its most recent records ofcondition so published.

 

The Company may not, nor may any Person directly orindirectly controlling, controlled by, or under common control with theCompany, serve as Trustee, notwithstanding that such corporation shall be otherwiseeligible and qualified under this Article.

 

In case at any time the Trustee shall cease to beeligible in accordance with the provisions of this Section 6.08, theTrustee shall resign immediately in the manner and with the effect specified inSection 6.09.

 

If the Trustee has or shall acquire any “conflictinginterest” within the meaning of §310(b) of the Trust Indenture Act, the Trusteeshall either eliminate such interest or resign, to the extent and in the mannerprovided by, and subject to this Indenture.

 

## SECTION 6.09               Resignation or Removal ofTrustee.

###  

### (a)           The Trustee, or any trustee ortrustees hereafter appointed, may at any time resign by giving written noticeof such resignation to the Company and by mailing notice thereof, at theCompany’s expense, to the holders of the Debt Securities at their addresses asthey shall appear on the Debt Security Register.  Upon receiving such notice of resignation, the Company shallpromptly appoint a successor trustee or trustees by written instrument, in duplicate,executed by order of its Board of Directors, one copy of which instrument shallbe delivered to the resigning Trustee and one copy to the successorTrustee.  If no successor Trustee shallhave been so appointed and have accepted appointment within 30 days afterthe mailing of such notice of resignation to the affected Securityholders, theresigning Trustee may petition any court of competent jurisdiction for theappointment of a successor Trustee, or any Securityholder who has been a bona fideholder of a Debt Security or Debt Securities for at least six months may,subject to the provisions of Section 5.09, on behalf of himself or herselfand all others similarly situated, petition any such court for the appointmentof a successor Trustee.  Such court

###  

### 34

### 

###  

### may thereupon,after such notice, if any, as it may deem proper and prescribe, appoint asuccessor Trustee.

 

### (b)           In case at any time any of thefollowing shall occur:

####  

#### (i)            the Trustee shall fail to comply with theprovisions of the last paragraph of Section 6.08 after written requesttherefor by the Company or by any Securityholder who has been a bona fideholder of a Debt Security or Debt Securities for at least six months;

####  

#### (ii)           the Trustee shall cease to be eligible inaccordance with the provisions of Section 6.08 and shall fail to resignafter written request therefor by the Company or by any such Securityholder; or

####  

#### (iii)          the Trustee shall become incapable of acting, orshall be adjudged bankrupt or insolvent, or a receiver of the Trustee or of itsproperty shall be appointed, or any public officer shall take charge or controlof the Trustee or of its property or affairs for the purpose of rehabilitation,conservation or liquidation,

 

then, in any such case,the Company may remove the Trustee and appoint a successor Trustee by writteninstrument, in duplicate, executed by order of the Board of Directors, one copyof which instrument shall be delivered to the Trustee so removed and one copyto the successor Trustee, or, subject to the provisions of Section 5.09,if no successor Trustee shall have been so appointed and have acceptedappointment within 30 days of the occurrence of any of (i), (ii) or (iii)above, any Securityholder who has been a bona fide holder of a Debt Security orDebt Securities for at least six months may, on behalf of himself or herselfand all others similarly situated, petition any court of competent jurisdictionfor the removal of the Trustee and the appointment of a successor Trustee.  Such court may thereupon, after such notice,if any, as it may deem proper and prescribe, remove the Trustee and appoint asuccessor Trustee.

###  

### (c)           Upon prior written notice tothe Company and the Trustee, the holders of a majority in aggregate principalamount of the Debt Securities at the time outstanding may at any time removethe Trustee and nominate a successor Trustee, which shall be deemed appointedas successor Trustee unless within ten Business Days after such nomination theCompany objects thereto, in which case or in the case of a failure by suchholders to nominate a successor Trustee, the Trustee so removed or anySecurityholder, 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.

###  

### (d)           Any resignation or removal ofthe Trustee and appointment of a successor Trustee pursuant to any of theprovisions of this Section 6.09 shall become effective upon acceptance ofappointment by the successor Trustee as provided in Section 6.10.

##  

## SECTION 6.10               Acceptance by SuccessorTrustee.

 

Any successor Trustee appointed as provided inSection 6.09 shall execute, acknowledge and deliver to the Company and toits predecessor Trustee an instrument accepting such appointment hereunder, andthereupon the resignation or removal of the retiring Trustee

 

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shall become effectiveand such successor Trustee, without any further act, deed or conveyance, shallbecome vested with all the rights, powers, duties and obligations with respectto the Debt Securities of its predecessor hereunder, with like effect as iforiginally named as Trustee herein; but, nevertheless, on the written request ofthe Company 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, theretiring Trustee and the  successorTrustee shall execute and deliver an indenture supplemental hereto which shallcontain such provisions as shall be deemed necessary or desirable to confirmthat all the rights, powers, trusts and duties of the retiring Trustee withrespect to the Debt Securities as to which the predecessor Trustee is notretiring shall continue to be vested in the predecessor Trustee, and shall addto or change any of the provisions of this Indenture as shall be necessary toprovide for or facilitate the administration of the Trust hereunder by morethan one Trustee, it being understood that nothing herein or in suchsupplemental indenture shall constitute such Trustees co-trustees of the sametrust and that each such Trustee shall be Trustee of a trust or trustshereunder separate and apart from any trust or trusts hereunder administered byany other such Trustee.

 

No successor Trustee shall accept appointment asprovided in this Section 6.10 unless at the time of such acceptance suchsuccessor Trustee shall be eligible under the provisions of Section 6.08.

 

In no event shall a retiring Trustee be liable for theacts or omissions of any successor Trustee hereunder.

 

Upon acceptance of appointment by a successor Trusteeas provided in this Section 6.10, the Company shall mail notice of thesuccession of such Trustee hereunder to the holders of Debt Securities at theiraddresses as they shall appear on the Debt Security Register.  If the Company fails to mail such noticewithin ten Business Days after the acceptance of appointment by the successorTrustee, the successor Trustee shall cause such notice to be mailed at theexpense of the Company.

 

## SECTION 6.11               Succession by Merger, etc.

##  

Any corporation into which the Trustee may be mergedor converted or with which it may be consolidated, or any corporation resultingfrom any merger, conversion or consolidation to which the Trustee shall be aparty, or any corporation succeeding to all or substantially all of thecorporate trust business of the Trustee, shall be the successor of the Trusteehereunder without the execution or filing of any paper or any further act on thepart of

 

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any of the parties hereto; provided, that suchcorporation shall be otherwise eligible and qualified under this Article.

 

In case at the time such successor to the Trusteeshall succeed to the trusts created by this Indenture any of the DebtSecurities shall have been authenticated but not delivered, any such successorto the Trustee may adopt the certificate of authentication of any predecessorTrustee, and deliver such Debt Securities so authenticated; and in case at thattime any of the Debt Securities shall not have been authenticated, anysuccessor to the Trustee may authenticate such Debt Securities either in thename of any predecessor hereunder or in the name of the successor Trustee; andin all such cases such certificates shall have the full force which it isanywhere in the Debt Securities or in this Indenture provided that thecertificate of the Trustee shall have; provided, however, thatthe right to adopt the certificate of authentication of any predecessor Trusteeor authenticate Debt Securities in the name of any predecessor Trustee shallapply only to its successor or successors by merger, conversion orconsolidation.

 

## SECTION 6.12               Authenticating Agents.

##  

There may be one or more Authenticating Agentsappointed by the Trustee upon the request of the Company with power to act onits behalf and subject to its direction in the authentication and delivery ofDebt Securities issued upon exchange or registration of transfer thereof as fullyto all intents and purposes as though any such Authenticating Agent had beenexpressly authorized to authenticate and deliver Debt Securities; provided,that the Trustee shall have no liability to the Company for any acts oromissions of the Authenticating Agent with respect to the authentication anddelivery of Debt Securities.  Any suchAuthenticating Agent shall at all times be a corporation organized and doingbusiness under the laws of the United States or of any state or territorythereof or of the District of Columbia authorized under such laws to act asAuthenticating Agent, having a combined capital and surplus of at least$50,000,000 and being subject to supervision or examination by federal, state,territorial or District of Columbia authority. If such corporation publishes reports of condition at least annuallypursuant to law or the requirements of such authority, then for the purposes ofthis 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 Agentmay be merged or converted or with which it may be consolidated, or anycorporation resulting from any merger, consolidation or conversion to which anyAuthenticating Agent shall be a party, or any corporation succeeding to all orsubstantially all of the corporate trust business of any Authenticating Agent,shall be the successor of such Authenticating Agent hereunder, if suchsuccessor corporation is otherwise eligible under this Section 6.12without the execution or filing of any paper or any further act on the part ofthe parties hereto or such Authenticating Agent.

 

Any Authenticating Agent may at any time resign bygiving written notice 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

 

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of termination to such Authenticating Agent and to the Company.  Upon receiving such a notice of resignationor upon such a termination, or in case at any time any Authenticating Agentshall cease to be eligible under this Section 6.12, the Trustee may, andupon the request of the Company shall, promptly appoint a successorAuthenticating Agent eligible under this Section 6.12, shall give writtennotice of such appointment to the Company and shall mail notice of suchappointment to all holders of Debt Securities as the names and addresses ofsuch 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 Agentfrom time to time reasonable compensation for its services.  Any Authenticating Agent shall have noresponsibility or liability for any action taken by it as such in accordancewith the directions of the Trustee.

 

# ARTICLE VIICONCERNING THE SECURITYHOLDERS

#  

## SECTION 7.01               Action by Securityholders.

##  

Whenever in this Indenture it is provided that theholders of a specified percentage in aggregate principal amount of the DebtSecurities may take any action (including the making of any demand or request,the giving of any notice, consent or waiver or the taking of any other action),the fact that at the time of taking any such action the holders of suchspecified percentage have joined therein may be evidenced (a) by anyinstrument or any number of instruments of similar tenor executed by suchSecurityholders in person or by agent or proxy appointed in writing, or(b) by the record of such holders of Debt Securities voting in favorthereof at any meeting of such Securityholders duly called and held inaccordance with the provisions of Article VIII, or (c) by acombination of such instrument or instruments and any such record of such ameeting of such Securityholders or (d) by any other method the Trusteedeems satisfactory.

 

If the Company shall solicit from the Securityholdersany request, demand, authorization, direction, notice, consent, waiver or otheraction or revocation of the same, the Company may, at its option, as evidencedby an Officers’ Certificate, fix in advance a record date for such DebtSecurities for the determination of Securityholders entitled to give suchrequest, demand, authorization, direction, notice, consent, waiver or otheraction or revocation of the same, but the Company shall have no obligation todo so.  If such a record date is fixed,such request, demand, authorization, direction, notice, consent, waiver orother action or revocation of the same may be given before or after the recorddate, but only the Securityholders of record at the close of business on therecord date shall be deemed to be Securityholders for the purposes ofdetermining whether Securityholders of the requisite proportion of outstandingDebt Securities 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 be computedas of the record date; provided, however, that no suchauthorization, agreement or consent by such Securityholders on the record dateshall be deemed

 

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effective unless it shall become effective pursuant to the provisionsof this Indenture not later than six months after the record date.

 

## SECTION 7.02               Proof of Execution bySecurityholders.

##  

Subject to the provisions of Sections 6.01, 6.02and 8.05, proof of the execution of any instrument by a Securityholder or suchSecurityholder’s agent or proxy shall be sufficient if made in accordance withsuch reasonable rules and regulations as may be prescribed by the Trustee or insuch manner as shall be satisfactory to the Trustee.  The ownership of Debt Securities shall be proved by the DebtSecurity Register 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 deem necessary.

 

The record of any Securityholders’ meeting shall beproved in the manner provided in Section 8.06.

 

## SECTION 7.03               Who Are Deemed Absolute Owners.

##  

Prior to due presentment for registration of transferof any Debt Security, the Company, the Trustee, any Authenticating Agent, anypaying agent, any transfer agent and any Debt Security registrar may deem thePerson in whose name such Debt Security shall be registered upon the DebtSecurity Register to be, and may treat such Person as, the absolute owner ofsuch Debt Security (whether or not such Debt Security shall be overdue) for thepurpose of receiving payment of or on account of the principal of, premium, ifany, and interest on such Debt Security and for all other purposes; and neitherthe Company nor the Trustee nor any Authenticating Agent nor any paying agentnor any 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 order shallbe valid, and, to the extent of the sum or sums so paid, effectual to satisfyand discharge the liability for moneys payable upon any such Debt Security.

 

## SECTION 7.04               Debt Securities Owned byCompany Deemed Not Outstanding.

##  

In determining whether the holders of the requisiteaggregate principal amount of Debt Securities have concurred in any direction,consent or waiver under this Indenture, Debt Securities which are owned by theCompany or any other obligor on the Debt Securities or by any Person directlyor indirectly controlling or controlled by or under direct or indirect commoncontrol with the Company or any other obligor on the Debt Securities shall bedisregarded and deemed not to be outstanding for the purpose of any suchdetermination; provided, that for the purposes of determiningwhether the Trustee shall be protected in relying on any such direction,consent or waiver, only Debt Securities which a Responsible Officer of theTrustee actually knows are so owned shall be so disregarded.  Debt Securities so owned which have beenpledged in good faith may be regarded as outstanding for the purposes of thisSection 7.04 if the pledgee shall establish to the satisfaction of theTrustee the pledgee’s right to vote such Debt Securities and that the pledgeeis not the Company or any such other obligor or Person directly or indirectlycontrolling or controlled by or under direct or indirect common control withthe Company or any

 

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such other obligor.  In the caseof a dispute as to such right, any decision by the Trustee taken upon theadvice of counsel shall be full protection to the Trustee.

 

## SECTION 7.05               Revocation of Consents; FutureHolders Bound.

##  

At any time prior to (but not after) the evidencing tothe Trustee, as provided in Section 7.01, of the taking of any action bythe holders of the percentage in aggregate principal amount of the DebtSecurities specified in this Indenture in connection with such action, anyholder (in cases where no record date has been set pursuant to Section 7.01)or any holder as of an applicable record date (in cases where a record date hasbeen set pursuant to Section 7.01) of a Debt Security (or any DebtSecurity issued in whole or in part in exchange or substitution therefor) theserial number of which is shown by the evidence to be included in the DebtSecurities the holders of which have consented to such action may, by filingwritten notice with the Trustee at the Principal Office of the Trustee and uponproof of holding as provided in Section 7.02, revoke such action so far asconcerns such Debt Security (or so far as concerns the principal amountrepresented by any exchanged or substituted Debt Security).  Except as aforesaid any such action taken bythe holder of any Debt Security shall be conclusive and binding upon suchholder and upon all future holders and owners of such Debt Security, and of anyDebt Security issued in exchange or substitution therefor or on registration oftransfer thereof, irrespective of whether or not any notation in regard theretois made upon such Debt Security or any Debt Security issued in exchange orsubstitution therefor.

 

# ARTICLE VIIISECURITYHOLDERS’ MEETINGS

#  

## SECTION 8.01               Purposes of Meetings.

##  

A meeting of Securityholders may be called at any timeand from time to time pursuant to the provisions of this Article VIII forany of the following purposes:

 

### (a)           to give any notice to theCompany or to the Trustee, or to give any directions to the Trustee, or toconsent to the waiving of any default hereunder and its consequences, or totake any other action authorized to be taken by Securityholders pursuant to anyof the provisions of Article V;

###  

### (b)           to remove the Trustee andnominate a successor trustee pursuant to the provisions of Article VI;

###  

### (c)           to consent to the execution ofan indenture or indentures supplemental hereto pursuant to the provisions ofSection 9.02; or

###  

### (d)           to take any other actionauthorized to be taken by or on behalf of the holders of any specifiedaggregate principal amount of such Debt Securities under any other provision ofthis Indenture or under applicable law.

 

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## SECTION 8.02               Call of Meetings by Trustee.

##  

The Trustee may at any time call a meeting ofSecurityholders to take any action specified in Section 8.01, to be heldat such time and at such place in New York or Wilmington, Delaware, as theTrustee shall determine.  Notice ofevery meeting of the Securityholders, setting forth the time and the place ofsuch meeting and in general terms the action proposed to be taken at suchmeeting, shall be mailed to holders of Debt Securities affected at theiraddresses as they shall appear on the Debt Securities Register.  Such notice shall be mailed not less than 20nor more than 180 days prior to the date fixed for the meeting.

 

## SECTION 8.03               Call of Meetings by Company orSecurityholders.

##  

In case at any time the Company pursuant to a BoardResolution, or the holders of at least 10% in aggregate principal amount of theDebt Securities, as the case may be, then outstanding, shall have requested theTrustee to call a meeting of Securityholders, by written request setting forthin reasonable detail the action proposed to be taken at the meeting, and theTrustee shall not have mailed the notice of such meeting within 20 daysafter receipt of such request, then the Company or such Securityholders maydetermine the time and the place in Sioux Falls, South Dakota for such meetingand may call such meeting to take any action authorized in Section 8.01,by mailing notice thereof as provided in Section 8.02.

 

## SECTION 8.04               Qualifications for Voting.

##  

To be entitled to vote at any meeting ofSecurityholders a Person shall be (a) a holder of one or more DebtSecurities with respect to which the meeting is being held or (b) a Personappointed by an instrument in writing as proxy by a holder of one or more suchDebt Securities.  The only Persons whoshall be entitled to be present or to speak at any meeting of Securityholdersshall be the Persons entitled to vote at such meeting and their counsel and anyrepresentatives of the Trustee and its counsel and any representatives of theCompany and its counsel.

 

## SECTION 8.05               Regulations.

##  

Notwithstanding any other provisions of thisIndenture, the Trustee may make such reasonable regulations as it may deemadvisable for any meeting of Securityholders, in regard to proof of the holdingof Debt Securities and of the appointment of proxies, and in regard to theappointment and duties of inspectors of votes, the submission and examinationof proxies, certificates and other evidence of the right to vote, and suchother matters concerning the conduct of the meeting as it shall deemappropriate.

 

The Trustee shall, by an instrument in writing,appoint a temporary chairman of the meeting, unless the meeting shall have beencalled by the Company or by Securityholders as provided in Section 8.03,in which case the Company or the Securityholders calling the meeting, as thecase may be, shall in like manner appoint a temporary chairman. A permanentchairman and a permanent secretary of the meeting shall be elected by majorityvote at the meeting.

 

Subject to the provisions of Section 7.04, at anymeeting each holder of Debt Securities with respect to which such meeting isbeing held or proxy therefor shall be entitled to

 

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one vote for each $1,000 principal amount of Debt Securities held orrepresented by such holder; provided, however, that no vote shallbe cast or counted at any meeting in respect of any Debt Security challenged asnot outstanding and ruled by the chairman of the meeting to be notoutstanding.  The chairman of themeeting shall have no right to vote other than by virtue of Debt Securities heldby such chairman or instruments in writing as aforesaid duly designating suchchairman 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 meetingof holders of Debt Securities with respect to which such meeting is being heldshall be by written ballots on which shall be subscribed the signatures of suchholders or of their representatives by proxy and the serial number or numbersof the Debt Securities held or represented by them.  The permanent chairman of the meeting shall appoint twoinspectors of votes who shall count all votes cast at the meeting for oragainst any resolution and who shall make and file with the secretary of themeeting their verified written reports in triplicate of all votes cast at themeeting. A record in duplicate of the proceedings of each meeting ofSecurityholders shall be prepared by the secretary of the meeting and thereshall be attached to said record the original reports of the inspectors ofvotes on any vote by ballot taken thereat and affidavits by one or more Personshaving knowledge of the facts setting forth a copy of the notice of the meetingand showing that said notice was mailed as provided in Section 8.02.  The record shall show the serial numbers ofthe Debt Securities voting in favor of or against any resolution. The recordshall be signed and verified by the affidavits of the permanent chairman andsecretary of the meeting and one of the duplicates shall be delivered to theCompany and the other to the Trustee to be preserved by the Trustee, the latterto have attached thereto the ballots voted at the meeting.

 

Any record so signed and verified shall be conclusiveevidence of the matters therein stated.

 

## SECTION 8.07               Quorum; Actions.

##  

The Persons entitled to vote a majority in outstandingprincipal amount of the Debt Securities shall constitute a quorum for a meetingof Securityholders; provided, however, that if any action is tobe taken 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 specifiedpercentage in outstanding principal amount of the Debt Securities willconstitute a quorum.  In the absence ofa quorum within 30 minutes of the time appointed for any such meeting, themeeting shall, 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 suchmeeting.  In the absence of a quorum atany such adjourned meeting, such adjourned meeting may be further adjourned fora period of not less than 10 days as determined by the permanent chairmanof the meeting prior to the adjournment of such adjourned meeting.

 

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Notice of the reconvening of any adjourned meeting shall be given asprovided in Section 8.02, except that such notice need be given only oncenot less than five days prior to the date on which the meeting isscheduled to be reconvened.  Notice ofthe reconvening of an adjourned meeting shall state expressly the percentage,as provided above, of the outstanding principal amount of the Debt Securitieswhich shall constitute a quorum.

 

Except as limited by the proviso in the firstparagraph of Section 9.02, any resolution presented to a meeting oradjourned meeting duly reconvened at which a quorum is present as aforesaid maybe adopted by the affirmative vote of the holders of not less than a majorityin outstanding principal amount of the Debt Securities; provided, however,that, except as limited by the proviso in the first paragraph ofSection 9.02, any resolution with respect to any consent, waiver, request,demand, notice, authorization, direction or other action that this Indentureexpressly provides may be given by the holders of not less than a specified percentagein outstanding principal amount of the Debt Securities may be adopted at ameeting or an adjourned meeting duly reconvened and at which a quorum ispresent as aforesaid only by the affirmative vote of the holders of not lessthan such specified percentage in outstanding principal amount of the DebtSecurities.

 

Any resolution passed or decision taken at any meetingof holders of Debt Securities duly held in accordance with this Section shallbe binding on all the Securityholders, whether or not present or represented atthe meeting.

 

# ARTICLE IXSUPPLEMENTAL INDENTURES

#  

## SECTION 9.01               Supplemental Indentureswithout Consent of Securityholders.

##  

The Company, when authorized by a Board Resolution,and the Trustee may from time to time and at any time enter into an indentureor indentures supplemental hereto, without the consent of the Securityholders,for one or more of the following purposes:

 

### (a)           to evidence the succession ofanother corporation to the Company, or successive successions, and the assumptionby the successor corporation of the covenants, agreements and obligations ofthe Company, pursuant to Article XI hereof;

###  

### (b)           to add to the covenants of theCompany such further covenants, restrictions or conditions for the protectionof the holders of Debt Securities as the Board of Directors shall consider tobe for the protection of the holders of such Debt Securities, and to make theoccurrence, or the occurrence and continuance, of a default in any of suchadditional covenants, restrictions or conditions a default or an Event ofDefault permitting the enforcement of all or any of the several remediesprovided in this Indenture as herein set forth; provided, however,that in respect of any such additional covenant, restriction or condition suchsupplemental indenture may provide for a particular period of grace afterdefault (which period may be shorter or longer than that allowed in the case ofother defaults) or may provide for an immediate enforcement upon such defaultor may limit the remedies available to the Trustee upon such default;

 

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### (c)           to cure any ambiguity or tocorrect or supplement any provision contained herein or in any supplementalindenture which may be defective or inconsistent with any other provisioncontained herein or in any supplemental indenture, or to make such otherprovisions in regard to matters or questions arising under this Indenture; provided,that any such action shall not adversely affect the interests of theholders of the Debt Securities;

###  

### (d)           to add to, delete from, orrevise the terms of Debt Securities, including, without limitation, any termsrelating to the issuance, exchange, registration or transfer of DebtSecurities, including to provide for transfer procedures and restrictionssubstantially similar to those applicable to the Capital Securities, asrequired by Section 2.05 (for purposes of assuring that no registration ofDebt Securities is required under the Securities Act of 1933, as amended); provided,that any such action shall not adversely affect the interests of theholders of the Debt Securities then outstanding (it being understood, forpurposes of this proviso, that transfer restrictions on Debt Securitiessubstantially similar to those applicable to Capital Securities shall not bedeemed to adversely affect the holders of the Debt Securities);

###  

### (e)           to evidence and provide forthe acceptance of appointment hereunder by a successor Trustee with respect tothe Debt Securities and to add to or change any of the provisions of thisIndenture as shall be necessary to provide for or facilitate the administrationof the trusts hereunder by more than one Trustee, pursuant to the requirementsof Section 6.10;

###  

### (f)            to make any change (otherthan as elsewhere provided in this paragraph) that does not adversely affectthe rights of any Securityholder in any material respect; or

###  

### (g)           to provide for the issuance ofand establish the form and terms and conditions of the Debt Securities, toestablish the form of any certifications required to be furnished pursuant tothe terms of this Indenture or the Debt Securities, or to add to the rights ofthe holders of Debt Securities.

###  

The Trustee is hereby authorized to join with theCompany in the execution of any such supplemental indenture, to make anyfurther appropriate agreements and stipulations which may be therein containedand to accept the conveyance, transfer and assignment of any propertythereunder, but the Trustee shall not be obligated to, but may in its discretion,enter into any such supplemental indenture which affects the Trustee’s ownrights, duties or immunities under this Indenture or otherwise.

 

Any supplemental indenture authorized by theprovisions of this Section 9.01 may be executed by the Company and theTrustee without the consent of the holders of any of the Debt Securities at thetime outstanding, notwithstanding any of the provisions of Section 9.02.

 

## SECTION 9.02               Supplemental Indentures withConsent of Securityholders.

##  

With the consent (evidenced as provided inSection 7.01) of the holders of not less than a majority in aggregateprincipal amount of the Debt Securities at the time outstanding affected bysuch supplemental indenture (voting as a class), the Company, when authorizedby a Board Resolution, and the Trustee may from time to time and at any timeenter into an indenture or indentures supplemental hereto (which shall conformto the provisions of the Trust Indenture

 

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Act, then in effect, applicable to indentures qualified thereunder) forthe purpose of adding any provisions to or changing in any manner oreliminating any of the provisions of this Indenture or of any supplementalindenture or of modifying in any manner the rights of the holders of the DebtSecurities; provided, however, that no such supplemental indenture shallwithout such consent of the holders of each Debt Security then outstanding andaffected thereby (i) extend the fixed maturity of any Debt Security, orreduce the principal amount thereof or any premium thereon, or reduce the rateor extend the time of payment of interest thereon, or reduce any amount payableon redemption thereof or make the principal thereof or any interest or premiumthereon payable in any coin or currency other than that provided in the DebtSecurities, or impair or affect the right of any Securityholder to institutesuit for payment thereof or impair the right of repayment, if any, at theoption of the holder, or (ii) reduce the aforesaid percentage of DebtSecurities the holders of which are required to consent to any suchsupplemental indenture; and provided, further, that if the Debt Securities areheld by the Trust or a trustee of such trust, such supplemental indenture shallnot be effective until the holders of a majority in liquidation preference ofthe Trust Securities shall have consented to such supplemental indenture; provided,further, that if the consent of the Securityholder of each outstandingDebt Security is required, such supplemental indenture shall not be effectiveuntil each holder of the Trust Securities shall have consented to suchsupplemental indenture.

 

Upon the request of the Company accompanied by a BoardResolution authorizing the execution of any such supplemental indenture, andupon the filing with the Trustee of evidence of the consent of Securityholdersas aforesaid, the Trustee shall join with the Company in the execution of suchsupplemental indenture unless such supplemental indenture affects the Trustee’sown rights, duties or immunities under this Indenture or otherwise, in whichcase the Trustee may in its discretion, but shall not be obligated to, enterinto such supplemental indenture.

 

Promptly after the execution by the Company and theTrustee of any supplemental indenture pursuant to the provisions of thisSection, the Trustee shall transmit by mail, first class postage prepaid, anotice, prepared by the Company, setting forth in general terms the substanceof such supplemental indenture, to the Securityholders as their names andaddresses appear upon the Debt Security Register.  Any failure of the Trustee to mail such notice, or any defecttherein, shall not, however, in any way impair or affect the validity of anysuch supplemental indenture.

 

It shall not be necessary for the consent of theSecurityholders under this Section 9.02 to approve the particular form ofany proposed supplemental indenture, but it shall be sufficient if such consentshall approve the substance thereof.

 

## SECTION 9.03               Effect of SupplementalIndentures.

##  

Upon the execution of any supplemental indenturepursuant to the provisions of this Article IX, this Indenture shall be andbe deemed to be modified and amended in accordance therewith and the respectiverights, limitations of rights, obligations, duties and immunities under thisIndenture of the Trustee, the Company and the holders of Debt Securities shallthereafter be determined, exercised and enforced hereunder subject in allrespects to such modifications and

 

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amendments and all the terms and conditions of any such supplementalindenture shall be and be deemed to be part of the terms and conditions of thisIndenture for any and all purposes.

 

## SECTION 9.04               Notation on Debt Securities.

##  

Debt Securities authenticated and delivered after theexecution of any supplemental indenture pursuant to the provisions of thisArticle IX may bear a notation as to any matter provided for in suchsupplemental indenture.  If the Companyor the Trustee shall so determine, new Debt Securities so modified as toconform, in the opinion of the Board of Directors of the Company, to anymodification of this Indenture contained in any such supplemental indenture maybe prepared and executed by the Company, authenticated by the Trustee or theAuthenticating Agent and delivered in exchange for the Debt Securities thenoutstanding.

 

## SECTION 9.05               Evidence of Compliance ofSupplemental Indenture to be Furnished to Trustee.

##  

The Trustee, subject to the provisions of Sections 6.01and 6.02, shall, in addition to the documents required by Section 14.06,receive an Officers’ Certificate and an Opinion of Counsel as conclusiveevidence that any supplemental indenture executed pursuant hereto complies withthe requirements of this Article IX. The Trustee shall receive an Opinion of Counsel as conclusive evidencethat any supplemental indenture executed pursuant to this Article IX isauthorized or permitted by, and conforms to, the terms of this Article IXand that it is proper for the Trustee under the provisions of thisArticle IX to join in the execution thereof.

 

# ARTICLE XREDEMPTION OF SECURITIES

#  

## SECTION 10.01             Optional Redemption.

##  

At any time the Companyshall have the right, subject to the receipt by the Company of prior approvalfrom the OTS, if then required under applicable capital guidelines or policiesof the OTS, to redeem the Debt Securities, in whole or in part, on any January7th, April 7th, July 7th or October 7thon or after July 7, 2007 (the “Redemption Date”), at the Redemption Price.

 

## SECTION 10.02             Special Event Redemption.

##  

If a Special Event shall occur and be continuing, theCompany shall have the right, subject to the receipt by the Company of priorapproval from the OTS if then required under applicable capital guidelines orpolicies of the OTS, to redeem the Debt Securities, in whole but not in part,at any time within 90 days following the occurrence of such Special Event(the “Special Redemption Date”), at the Special Redemption Price.

 

## SECTION 10.03             Notice of Redemption; Selectionof Debt Securities.

##  

In case the Company shall desire to exercise the rightto redeem all, or, as the case may be, any part of the Debt Securities, itshall fix a date for redemption and shall mail a notice 

 

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of such redemption atleast 30 and not more than 60 days prior to the date fixed for redemptionto the holders of Debt Securities so to be redeemed as a whole or in part attheir last addresses as the same appear on the Debt Security Register.  Such mailing shall be by first classmail.  The notice if mailed in themanner herein provided shall be conclusively presumed to have been duly given,whether or not the holder receives such notice.  In any case, failure to give such notice by mail or any defect inthe notice to the holder of any Debt Security designated for redemption as awhole or in part shall not affect the validity of the proceedings for theredemption of any other Debt Security.

 

Each such notice of redemption shall specify the CUSIPnumber, if any, of the Debt Securities to be redeemed, the date fixed forredemption, the redemption price at which Debt Securities are to be redeemed,the place or places of payment, that payment will be made upon presentation andsurrender of such Debt Securities, that interest accrued to the date fixed forredemption will be paid as specified in said notice, and that on and after saiddate interest 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 theRedemption Date or the Special Redemption Date specified in the notice ofredemption given as provided in this Section, the Company will deposit with theTrustee or with one or more paying agents an amount of money sufficient toredeem on the redemption date all the Debt Securities so called for redemptionat the appropriate redemption price, together with accrued interest to the datefixed for redemption.

 

The Company will give the Trustee notice not less than45 nor more than 60 days prior to the redemption date as to the redemptionprice at which the Debt Securities are to be redeemed and the aggregateprincipal amount of Debt Securities to be redeemed and the Trustee shallselect, in such manner as in its sole discretion it shall deem appropriate andfair, the Debt Securities or portions thereof (in integral multiples of $1,000)to be redeemed.

 

## SECTION 10.04             Payment of Debt SecuritiesCalled for Redemption.

##  

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 

 

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Company at the applicableredemption price, together with interest accrued thereon to the Redemption Dateor the Special Redemption Date (as the case may be).

 

Upon presentation of any Debt Security redeemed inpart only, the Company shall execute and the Trustee shall authenticate andmake available for delivery to the holder thereof, at the expense of theCompany, a new Debt Security or Debt Securities of authorized denominations inprincipal amount equal to the unredeemed portion of the Debt Security sopresented.

 

# ARTICLE XICONSOLIDATION, MERGER, SALE, CONVEYANCE AND LEASE

#  

## SECTION 11.01             Company May Consolidate, etc.,on Certain Terms.

##  

Nothing contained in this Indenture or in the DebtSecurities shall prevent any consolidation or merger of the Company with orinto any other corporation or corporations (whether or not affiliated with theCompany) or successive consolidations or mergers in which the Company or itssuccessor or successors shall be a party or parties, or shall prevent any sale,conveyance, transfer or other disposition of the property or capital stock ofthe Company or its successor or successors as an entirety, or substantially asan entirety, to any other corporation (whether or not affiliated with theCompany, or its successor or successors) authorized to acquire and operate thesame; provided, however, that the Company hereby covenants andagrees that, upon any such consolidation, merger (where the Company is not thesurviving corporation), sale, conveyance, transfer or other disposition, thedue and punctual payment of the principal of (and premium, if any) and intereston 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 reasonablysatisfactory in form to the Trustee executed and delivered to the Trustee bythe entity formed by such consolidation, or into which the Company shall havebeen merged, or by the entity which shall have acquired such property orcapital stock.

 

## SECTION 11.02             Successor Entity to beSubstituted.

##  

In case of any such consolidation, merger, sale,conveyance, transfer or other disposition and upon the assumption by thesuccessor entity, by supplemental indenture, executed and delivered to theTrustee and reasonably satisfactory in form to the Trustee, of the due andpunctual payment of the principal of and premium, if any, and interest on allof the Debt Securities and the due and punctual performance and observance ofall of the covenants and conditions of this Indenture to be performed orobserved by the Company, such successor entity shall succeed to and besubstituted for the Company, with the same effect as if it had been namedherein as the Company, and thereupon the predecessor entity shall be relievedof any further liability or obligation hereunder or upon the DebtSecurities.  Such successor entitythereupon may cause to be signed, and may issue either in its own name or inthe name of the Company, any or all of the Debt Securities issuable hereunderwhich theretofore shall not have been signed by the Company and delivered tothe Trustee or the Authenticating Agent; and, upon the order of such successorentity instead of the Company and subject to all the terms, conditions and 

 

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limitations in thisIndenture prescribed, the Trustee or the Authenticating Agent shallauthenticate and deliver any Debt Securities which previously shall have beensigned and delivered by the officers of the Company, to the Trustee or theAuthenticating Agent for authentication, and any Debt Securities which suchsuccessor entity thereafter shall cause to be signed and delivered to theTrustee or the Authenticating Agent for that purpose.  All the Debt Securities so issued shall in all respects have thesame legal rank and benefit under this Indenture as the Debt Securitiestheretofore or thereafter issued in accordance with the terms of this Indentureas though all of such Debt Securities had been issued at the date of theexecution hereof.

 

## SECTION 11.03             Opinion of Counsel to be Givento Trustee.

##  

The Trustee, subject to the provisions ofSections 6.01 and 6.02, shall receive, in addition to the Opinion ofCounsel required by Section 9.05, an Opinion of Counsel as conclusiveevidence that any consolidation, merger, sale, conveyance, transfer or otherdisposition, and any assumption, permitted or required by the terms of thisArticle XI complies with 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 Trusteefor cancellation all Debt Securities theretofore authenticated (other than anyDebt Securities which shall have been destroyed, lost or stolen and which shallhave been replaced or paid as provided in Section 2.06) and nottheretofore canceled, or (b) all the Debt Securities not theretoforecanceled or delivered to the Trustee for cancellation shall have become due andpayable, or are by their terms to become due and payable within one year or areto be called for redemption within one year under arrangements satisfactory tothe Trustee for the giving of notice of redemption, and the Company shalldeposit with the Trustee, in trust, funds, which shall be immediately due andpayable, sufficient to pay at maturity or upon redemption all of the DebtSecurities (other than any Debt Securities which shall have been destroyed,lost or stolen and which shall have been replaced or paid as provided inSection 2.06) not theretofore canceled or delivered to the Trustee forcancellation, including principal and premium, if any, and interest due or tobecome due to such date of maturity or redemption date, as the case may be, butexcluding, however, the amount of any moneys for the payment of principal of,and premium, if any, or interest on the Debt Securities (1) theretoforerepaid to the Company in accordance with the provisions of Section 12.04,or (2) paid to any state or to the District of Columbia pursuant to itsunclaimed property or similar laws, and if in the case of eitherclause (a) or clause (b) the Company shall also pay or cause to bepaid all other sums payable hereunder by the Company, then this Indenture shallcease to be of further effect except for the provisions of Sections 2.05,2.06, 3.01, 3.02, 3.04, 6.06, 6.09 and 12.04 hereof, which shall survive untilsuch Debt Securities shall mature or are redeemed, as the case may be, and arepaid.  Thereafter, Sections 6.06,6.09 and 12.04 shall survive, and the Trustee, on demand of the Companyaccompanied by an Officers’ Certificate and an Opinion of Counsel, each statingthat all conditions precedent herein provided for relating to the satisfactionand discharge of this Indenture have been complied with, and at 

 

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the cost and expense ofthe Company, shall execute proper instruments acknowledging satisfaction of anddischarging this Indenture, the Company, however, hereby agreeing to reimbursethe Trustee for any costs or expenses thereafter reasonably and properlyincurred by the Trustee in connection with this Indenture or the DebtSecurities.

 

## SECTION 12.02             Deposited Moneys to be Held inTrust by Trustee.

##  

Subject to the provisions of Section 12.04, allmoneys deposited with the Trustee pursuant to Section 12.01 shall be heldin trust and applied by it to the payment, either directly or through anypaying agent (including the Company if acting as its own paying agent), to theholders of the particular Debt Securities for the payment of which such moneyshave been deposited with the Trustee, of all sums due and to become due thereonfor principal, and premium, if any, and interest.

 

## SECTION 12.03             Paying Agent to Repay MoneysHeld.

##  

Upon the satisfaction and discharge of this Indenture,all moneys then held by any paying agent of the Debt Securities (other than theTrustee) shall, upon demand of the Company, be repaid to the Company or paid tothe Trustee, and thereupon such paying agent shall be released from all furtherliability with respect to such moneys.

 

## SECTION 12.04             Return of Unclaimed Moneys.

##  

Any moneys deposited with or paid to the Trustee orany paying agent for payment of the principal of, and premium, if any, orinterest on Debt Securities and not applied but remaining unclaimed by theholders of Debt Securities for two years after the date upon which theprincipal of, and premium, if any, or interest on such Debt Securities, as thecase may be, shall have become due and payable, shall be repaid to the Companyby the Trustee or such paying agent on written demand; and the holder of any ofthe Debt Securities shall thereafter look only to the Company for any paymentwhich such holder may be entitled to collect and all liability of the Trusteeor such paying agent with respect to such moneys shall thereupon cease.

 

# ARTICLE XIIIIMMUNITY OF INCORPORATORS, STOCKHOLDERS,OFFICERS AND DIRECTORS

#  

## SECTION 13.01             Indenture and Debt SecuritiesSolely Corporate Obligations.

##  

No recourse for the payment of the principal of orpremium, if any, or interest on any Debt Security, or for any claim basedthereon or otherwise in respect thereof, and no recourse under or upon anyobligation, covenant or agreement of the Company in this Indenture or in anysupplemental indenture, or in any such Debt Security, or because of thecreation of any indebtedness represented thereby, shall be had against anyincorporator, stockholder, officer, director, employee or agent, as such, past,present or future, of the Company or of any predecessor or successorcorporation of the Company, either directly or through the Company or anysuccessor corporation of the Company, whether by virtue of any constitution,statute or rule of law, or by the enforcement of any assessment or penalty orotherwise; it being expressly 

 

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understood that all suchliability is hereby expressly waived and released as a condition of, and as aconsideration for, the execution of this Indenture and the issue of the DebtSecurities.

 

# ARTICLE XIVMISCELLANEOUS PROVISIONS

#  

## SECTION 14.01             Successors.

##  

All the covenants, stipulations, promises andagreements of the Company contained in this Indenture shall bind its successorsand assigns whether so expressed or not.

 

## SECTION 14.02             Official Acts by SuccessorEntity.

##  

Any act or proceeding by any provision of thisIndenture authorized or required to be done or performed by any board,committee or officer of the Company shall and may be done and performed withlike force and effect by the like board, committee, officer or other authorizedPerson of any entity that shall at the time be the lawful successor of theCompany.

 

## SECTION 14.03             Surrender of Company Powers.

##  

The Company by instrument in writing executed byauthority of 2/3 (two-thirds) of its Board of Directors and delivered to theTrustee may surrender any of the powers reserved to the Company and thereuponsuch power so surrendered shall terminate both as to the Company and as to anypermitted successor.

 

## SECTION 14.04             Addresses for Notices, etc.

##  

Any notice or demand which by any provision of thisIndenture is required or permitted to be given or served by the Trustee or bythe Securityholders 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 Street, Sioux Falls,South Dakota  57117, Attention: CurtisL. Hage.  Any notice, direction, requestor demand by any Securityholder or the Company to or upon the Trustee shall bedeemed to have been sufficiently given or made, for all purposes, if given ormade in writing at the office of Wilmington Trust Company at Rodney SquareNorth, 1100 North Market Street, Wilmington, Delaware 19890, Attention:Corporate Trust Administration.

 

## SECTION 14.05             Governing Law.

##  

This Indenture and each Debt Security shall be deemedto be a contract made under the law of the State of New York, and for allpurposes shall be governed by and construed in accordance with the law of saidState, without regard to conflict of laws principles thereof.

 

## SECTION 14.06             Evidence of Compliance withConditions Precedent.

##  

Upon any application or demand by the Company to theTrustee to take any action under any of the provisions of this Indenture, theCompany shall furnish to the Trustee an 

 

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Officers’ Certificatestating that in the opinion of the signers all conditions precedent, if any,provided for in this Indenture relating to the proposed action have beencomplied with and an Opinion of Counsel stating that, in the opinion of suchcounsel, all such conditions precedent have been complied with (except that nosuch Opinion of Counsel is required to be furnished to the Trustee inconnection with the authentication and issuance of Debt Securities issued onthe date of this Indenture).

 

Each certificate or opinion provided for in thisIndenture and delivered to the Trustee with respect to compliance with acondition or covenant provided for in this Indenture (except certificatesdelivered pursuant to Section 3.05) shall include (a) a statement thatthe person making such certificate or opinion has read such covenant orcondition; (b) a brief statement as to the nature and scope of theexamination or investigation upon which the statements or opinions contained insuch certificate or opinion are based; (c) a statement that, in theopinion of such person, he or she has made such examination or investigation asis necessary to enable him or her to express an informed opinion as to whetheror not such covenant or condition has been complied with; and (d) a statementas to whether or not, in the opinion of such person, such condition or covenanthas been complied with.

 

## SECTION 14.07             Non-Business Days.

##  

In any case where the date of payment of interest onor principal of the Debt Securities is not a Business Day, the payment of suchinterest on or principal of the Debt Securities need not be made on such datebut may be made on the next succeeding Business Day, with the same force andeffect as if made on the date of payment and no interest shall accrue for theperiod from and after such date, except if such Business Day is in the nextsucceeding calendar year, such payment will be made on the immediatelypreceding Business Day.

 

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

##  

The table of contents and the titles and headings ofthe articles and sections of this Indenture have been inserted for convenienceof reference only, are not to be considered a part hereof, and shall in no waymodify or restrict any of the terms or provisions hereof.

 

## SECTION 14.09             Execution in Counterparts.

##  

This Indenture may be executed in any number ofcounterparts, each of which shall be an original, but such counterparts shalltogether constitute but one and the same instrument.

 

## SECTION 14.10             Separability.

##  

In case any one or more of the provisions contained inthis Indenture or in the Debt Securities shall for any reason be held to beinvalid, illegal or unenforceable in any respect, such invalidity, illegalityor unenforceability shall not affect any other provisions of this Indenture orof such Debt Securities, but this Indenture and such Debt Securities shall beconstrued as if such invalid or illegal or unenforceable provision had neverbeen contained herein or therein.

 

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## SECTION 14.11             Assignment.

##  

Subject to Article 11, the Company will have theright at all times to assign any of its rights or obligations under thisIndenture to a direct or indirect wholly owned Subsidiary of the Company, provided,that, in the event of any such assignment, the Company will remainliable for all such obligations. Subject to the foregoing, this Indenture isbinding upon and inures to the benefit of the parties hereto and theirrespective successors and assigns. This Indenture may not otherwise be assignedby the parties thereto.

 

## SECTION 14.12             Acknowledgment of Rights.

##  

The Company acknowledges that, with respect to anyDebt Securities held by the Trust or the Institutional Trustee of the Trust, ifthe Institutional Trustee of the Trust fails to enforce its rights under thisIndenture as the holder of Debt Securities held as the assets of the Trustafter the holders of a majority in Liquidation Amount of the Capital Securitiesof the Trust have so directed in writing such Institutional Trustee, a holder ofrecord of such Capital Securities may to the fullest extent permitted by lawinstitute legal proceedings directly against the Company to enforce suchInstitutional Trustee’s rights under this Indenture without first institutingany legal proceedings against such Institutional Trustee or any otherPerson.  Notwithstanding the foregoing,if an Event of Default has occurred and is continuing and such event isattributable to the failure of the Company to pay interest (or premium, if any)or principal on the Debt Securities on the date such interest (or premium, ifany) or principal is otherwise due and payable (or in the case of redemption,on the redemption date), the Company acknowledges that a holder of record ofCapital Securities of the Trust may directly institute a proceeding against theCompany for enforcement of payment to such holder directly of the principal of(or premium, if any) or interest on the Debt Securities having an aggregateprincipal amount equal to the aggregate Liquidation Amount of the CapitalSecurities of such holder on or after the respective due date specified in theDebt Securities.

 

# ARTICLE XVSUBORDINATION OF DEBT SECURITIES

#  

## SECTION 15.01             Agreement to Subordinate.

##  

The Company covenants and agrees, and each holder ofDebt Securities issued hereunder and under any supplemental indenture (the“Additional Provisions”) by such Securityholder’s acceptance thereof likewisecovenants and agrees, that all Debt Securities shall be issued subject to theprovisions of this Article XV; and each holder of a Debt Security, whetherupon original issue or upon transfer or assignment thereof, accepts and agreesto be bound by such provisions.

 

The payment by the Company of the principal of, andpremium, if any, and interest on all Debt Securities issued hereunder and underany Additional Provisions shall, to the extent and in the manner hereinafterset forth, be subordinated and junior in right of payment to the prior paymentin full of all Senior Indebtedness of the Company, whether outstanding at thedate of this Indenture or thereafter incurred.

 

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No provision of this Article XV shall prevent theoccurrence of any default or Event of Default hereunder.

 

## SECTION 15.02             Default on Senior Indebtedness.

##  

In the event and during the continuation of anydefault by the Company in the payment of principal, premium, interest or anyother payment due on any Senior Indebtedness of the Company following anyapplicable grace period, or in the event that the maturity of any SeniorIndebtedness of the Company has been accelerated because of a default, and suchacceleration has not been rescinded or canceled and such Senior Indebtednesshas not been paid in full then, in either case, no payment shall be made by theCompany with respect to the principal of, or premium, if any, or interest onthe Debt Securities.

 

In the event that, notwithstanding the foregoing, anypayment shall be received by the Trustee when such payment is prohibited by thepreceding paragraph 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 respectiverepresentatives, or to the trustee or trustees under any indenture pursuant towhich any of such Senior Indebtedness may have been issued, as their respectiveinterests may appear, but only to the extent that the holders of the SeniorIndebtedness (or their representative or representatives or a trustee) notifythe Trustee in writing within 90 days of such payment of the amounts thendue and owing on the Senior Indebtedness and only the amounts specified in suchnotice to the Trustee shall be paid to the holders of Senior Indebtedness.

 

## SECTION 15.03             Liquidation; Dissolution; Bankruptcy.

##  

Upon any payment by the Company or distribution ofassets of the Company of any kind or character, whether in cash, property orsecurities, to creditors upon any dissolution or winding-up or liquidation orreorganization of the Company, whether voluntary or involuntary or inbankruptcy, insolvency, receivership or other proceedings, all amounts due uponall Senior 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 account of the principal (and premium, if any) orinterest on the Debt Securities; and upon any such dissolution or winding-up orliquidation or reorganization, any payment by the Company, or distribution ofassets of the Company of any kind or character, whether in cash, property orsecurities, to which the Securityholders or the Trustee would be entitled toreceive from the Company, except for the provisions of this Article XV,shall be paid by the Company, or by any receiver, trustee in bankruptcy,liquidating trustee, agent or other Person making such payment or distribution,or by the Securityholders or by the Trustee under this Indenture if received bythem or it, directly to the holders of Senior Indebtedness of the Company (prorata to such holders on the basis of the respective amounts of SeniorIndebtedness held by such holders, as calculated by the Company) or theirrepresentative or representatives, or to the trustee or trustees under any indenturepursuant to which any instruments evidencing such Senior Indebtedness may havebeen issued, as their respective interests may appear, to the extent necessaryto pay such Senior Indebtedness in full, in money or money’s worth, aftergiving effect to any concurrent payment or distribution to or for the holdersof such Senior Indebtedness, before any payment or distribution is made to theSecurityholders.

 

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In the event that, notwithstanding the foregoing, anypayment or distribution of assets of the Company of any kind or character,whether in cash, property or securities, prohibited by the foregoing, shall bereceived by the Trustee before all Senior Indebtedness of the Company is paidin full, or provision is made for such payment in money in accordance with itsterms, such payment or distribution shall be held in trust for the benefit ofand shall be paid over or delivered to the holders of such Senior Indebtednessor their 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, ascalculated by the Company, for application to the payment of all SeniorIndebtedness of the Company remaining unpaid to the extent necessary to paysuch Senior Indebtedness in full in money in accordance with its terms, aftergiving effect to any concurrent payment or distribution to or for the benefitof the holders of such Senior Indebtedness.

 

For purposes of this Article XV, the words “cash,property or securities” shall not be deemed to include shares of stock of theCompany as reorganized 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 in Section 15.02or in this Section 15.03 shall apply to claims of, or payments to, theTrustee under or pursuant to Section 6.06 of this Indenture.

 

## SECTION 15.04             Subrogation.

##  

Subject to the payment in full of all SeniorIndebtedness of the Company, the Securityholders shall be subrogated to therights of the holders of such Senior Indebtedness to receive payments ordistributions of cash, property or securities of the Company applicable to suchSenior Indebtedness until the principal of (and premium, if any) and intereston the Debt Securities shall be paid in full; and, for the purposes of suchsubrogation, no payments or distributions to the holders of such SeniorIndebtedness of any cash, property or securities to which the Securityholdersor the Trustee would be entitled except for the provisions of thisArticle 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 the

 

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holders of the DebtSecurities, on the one hand, and the holders of such Senior Indebtedness, onthe other hand.

 

Nothing contained in this Article XV or elsewherein this Indenture, any Additional Provisions or in the Debt Securities isintended to or shall impair, as between the Company, its creditors other thanthe holders of Senior Indebtedness of the Company, and the holders of the DebtSecurities, the obligation of the Company, which is absolute and unconditional,to pay to the holders of the Debt Securities the principal of (and premium, ifany) and interest on the Debt Securities as and when the same shall become dueand payable in accordance with their terms, or is intended to or shall affectthe relative rights of the holders of the Debt Securities and creditors of theCompany, other than the holders of Senior Indebtedness of the Company, norshall anything herein or therein prevent the Trustee or the holder of any DebtSecurity from exercising all remedies otherwise permitted by applicable lawupon default under this Indenture, subject to the rights, if any, under thisArticle XV of the holders of such Senior Indebtedness in respect of cash,property or securities of the Company received upon the exercise of any suchremedy.

 

Upon any payment or distribution of assets of theCompany referred to in this Article XV, the Trustee, subject to theprovisions of Article VI of this Indenture, and the Securityholders shallbe entitled to conclusively rely upon any order or decree made by any court ofcompetent jurisdiction 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 EffectuateSubordination.

##  

Each Securityholder by such Securityholder’sacceptance thereof authorizes and directs the Trustee on such Securityholder’sbehalf to take such action as may be necessary or appropriate to effectuate thesubordination provided in this Article XV and appoints the Trustee suchSecurityholder’s attorney-in-fact for any and all such purposes.

 

## SECTION 15.06             Notice by the Company.

##  

The Company shall give prompt written notice to aResponsible Officer of the Trustee at the Principal Office of the Trustee ofany fact known to the Company 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. Notwithstanding the provisions of this Article XV or any otherprovision of this Indenture or any Additional Provisions, the Trustee shall notbe charged with knowledge of the existence of any facts that would prohibit themaking of any payment of moneys to or by the Trustee in respect of the DebtSecurities pursuant to the provisions of this Article XV, unless and untila Responsible Officer of the Trustee at the Principal Office of the Trusteeshall have received written notice thereof from the Company or a holder orholders of Senior Indebtedness or from any trustee therefor; and before thereceipt of 

 

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any such written notice,the Trustee, subject to the provisions of Article VI of this Indenture,shall be entitled in all respects to assume that no such facts exist; provided,however, that if the Trustee shall not have received the notice providedfor in this Section 15.06 at least two Business Days prior to the dateupon which by the terms hereof any money may become payable for any purpose(including, without limitation, the payment of the principal of (or premium, ifany) or interest on any Debt Security), then, anything herein contained to thecontrary notwithstanding, the Trustee shall have full power and authority toreceive such money and to apply the same to the purposes for which they werereceived, and shall not be affected by any notice to the contrary that may bereceived by it within two Business Days prior to such date.

 

The Trustee, subject to the provisions ofArticle VI of this Indenture, shall be entitled to conclusively rely onthe delivery to it of a written notice by a Person representing himself orherself to be a holder of Senior Indebtedness of the Company (or a trustee orrepresentative on behalf of such holder) to establish that such notice has beengiven by a holder of such Senior Indebtedness or a trustee or representative onbehalf of any such holder or holders. In the event that the Trustee determines in good faith that furtherevidence is required with respect to the right of any Person as a holder ofsuch Senior Indebtedness to participate in any payment or distribution pursuantto this Article XV, the Trustee may request such Person to furnishevidence to the reasonable satisfaction of the Trustee as to the amount of suchSenior Indebtedness held by such Person, the extent to which such Person isentitled to participate in such payment or distribution and any other factspertinent to the rights of such Person under this Article XV, and, if suchevidence is not furnished, the Trustee may defer any payment to such Personpending judicial determination as to the right of such Person to receive suchpayment.

 

## SECTION 15.07             Rights of the Trustee; Holdersof Senior Indebtedness.

##  

The Trustee in its individual capacity shall beentitled to all the rights set forth in this Article XV in respect of anySenior Indebtedness at any time held by it, to the same extent as any otherholder of Senior Indebtedness, and nothing in this Indenture or any AdditionalProvisions shall deprive the Trustee of any of its rights as such holder.

 

With respect to the holders of Senior Indebtedness ofthe Company, the Trustee undertakes to perform or to observe only such of itscovenants and obligations as are specifically set forth in thisArticle XV, and no implied covenants or obligations with respect to theholders of such Senior Indebtedness shall be read into this Indenture or anyAdditional Provisions against the Trustee. The Trustee shall not owe or be deemed to owe any fiduciary duty to theholders of such Senior Indebtedness and, subject to the provisions ofArticle VI of this Indenture, the Trustee shall not be liable to anyholder of such Senior Indebtedness if it shall pay over or deliver toSecurityholders, the Company or any other Person money or assets to which anyholder of such Senior Indebtedness shall be entitled by virtue of thisArticle XV or otherwise.

 

Nothing in this Article XV shall apply to claimsof, or payments to, the Trustee under or pursuant to Section 6.06.

 

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## SECTION 15.08             Subordination May Not BeImpaired.

##  

No right of any present or future holder of any SeniorIndebtedness of the Company to enforce subordination as herein provided shallat any time in any way be prejudiced or impaired by any act or failure to acton the part of the Company, or by any act or failure to act, in good faith, byany such holder, or by any noncompliance by the Company, with the terms,provisions and covenants of this Indenture, regardless of any knowledge thereofthat any such holder may have or otherwise be charged with.

 

Without in any way limiting the generality of theforegoing paragraph, the holders of Senior Indebtedness of the Company may, atany time and from time to time, without the consent of or notice to the Trusteeor the Securityholders, without incurring responsibility to the Securityholdersand without impairing or releasing the subordination provided in thisArticle XV or the obligations hereunder of the holders of the DebtSecurities to the holders of such Senior Indebtedness, do any one or more ofthe following: (a) change the manner, place or terms of payment or extendthe time of payment of, or renew or alter, such Senior Indebtedness, orotherwise amend or supplement in any manner such Senior Indebtedness or anyinstrument evidencing the same or any agreement under which such SeniorIndebtedness is outstanding; (b) sell, exchange, release or otherwise dealwith any property pledged, mortgaged or otherwise securing such SeniorIndebtedness; (c) release any Person liable in any manner for thecollection of such Senior Indebtedness; and (d) exercise or refrain fromexercising any rights against the Company, and any other Person.

 

Wilmington Trust Company, in its capacity as Trustee,hereby accepts the trusts in this Indenture declared and provided, upon theterms and conditions herein above set forth.

 

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IN WITNESS WHEREOF, the parties hereto have causedthis Indenture to be duly executed by their respective officers thereunto dulyauthorized, as of the day and year first above written.

 

 
|   | HF FINANCIAL CORP.        |
|--------|---------------------------|
|   |                      |   |
|   |                      |   |
|   | By:                       |   |
|   |                      | Curtis L. Hage |
|   |                      | Chairman, President and Chief Executive |
|   |                      | Officer |
|   |                      |   |
|   |                      |   |
|   | WILMINGTON TRUST COMPANY, |
|   |                      | as Trustee |
|   |                      |   |
|   |                      |   |
|   | By:                       |   |
|   |                      | Name: |
|   |                      | Title: |

 

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**EXHIBITA**

 

**FORMOF FLOATING RATE JUNIOR SUBORDINATED DEBT SECURITY DUE2032**

 

[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 REGISTRATION TO AN “ACCREDITED INVESTOR”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 “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 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 HEREOFALSO AGREES, REPRESENTS AND WARRANTS THAT IT IS NOT AN EMPLOYEE BENEFIT,INDIVIDUAL RETIREMENT ACCOUNT OR OTHER PLAN OR**

 

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**ARRANGEMENT SUBJECT TO TITLE I OF THEEMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED (“ERISA”), ORSECTION 4975 OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE“CODE”), (EACH A “PLAN”), OR AN ENTITY WHOSE UNDERLYING ASSETS INCLUDE “PLANASSETS” BY REASON OF ANY PLAN’S INVESTMENT IN THE ENTITY AND NO PERSONINVESTING “PLAN ASSETS” OF ANY PLAN MAY ACQUIRE OR HOLD THIS SECURITY OR ANYINTEREST THEREIN, UNLESS SUCH PURCHASER OR HOLDER IS ELIGIBLE FOR THE EXEMPTIVERELIEF AVAILABLE UNDER U.S. DEPARTMENT OF LABOR PROHIBITED TRANSACTIONCLASS EXEMPTION 96-23, 95-60, 91-38, 90-1 OR 84-14 OR ANOTHER APPLICABLEEXEMPTION OR ITS PURCHASE AND HOLDING OF THIS SECURITY IS NOT PROHIBITED BYSECTION 406 OF ERISA OR SECTION 4975 OF THE CODE WITH RESPECT TO SUCHPURCHASE OR HOLDING.  ANY PURCHASER ORHOLDER OF THIS SECURITY OR ANY INTEREST THEREIN WILL BE DEEMED TO HAVEREPRESENTED BY ITS PURCHASE AND HOLDING THEREOF THAT EITHER (i) IT IS NOTAN EMPLOYEE BENEFIT PLAN WITHIN THE MEANING OF SECTION 3(3) OF ERISA, OR APLAN TO WHICH SECTION 4975 OF THE CODE IS APPLICABLE, A TRUSTEE OR OTHERPERSON ACTING ON BEHALF OF AN EMPLOYEE BENEFIT PLAN OR PLAN, OR ANY OTHERPERSON OR ENTITY USING THE ASSETS OF ANY EMPLOYEE BENEFIT PLAN OR PLAN TOFINANCE SUCH PURCHASE, OR (ii) SUCH PURCHASE WILL NOT RESULT IN A PROHIBITEDTRANSACTION UNDER SECTION 406 OF ERISA OR SECTION 4975 OF THE CODEFOR WHICH THERE IS NO APPLICABLE STATUTORY OR ADMINISTRATIVE EXEMPTION.**

 

**INCONNECTION WITH ANY TRANSFER, THE HOLDER WILL DELIVER TO THE REGISTRAR ANDTRANSFER AGENT SUCH CERTIFICATES AND OTHER INFORMATION AS MAY BE REQUIRED BYTHE INDENTURE TO CONFIRM THAT THE TRANSFER COMPLIES WITH THE FOREGOINGRESTRICTIONS.**

 

**THIS SECURITY WILL BE ISSUED AND MAY BE TRANSFERRED ONLYIN BLOCKS 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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**INELIGIBLE AS COLLATERAL FOR A LOAN BY THE COMPANY OR ANY OFITS SUBSIDIARIES AND IS NOT SECURED.**

 

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Floating Rate JuniorSubordinated Debt Security due 2032

 

of

 

HF FINANCIAL CORP.

 

HF Financial Corp., a savings and loan holding companyincorporated in Delaware (the “Company”), for value received promises to pay to[                                ](the “Holder”), or registered assigns, the principal sum of[                                               ]Dollars($[                          ])on October 7, 2032, and to pay interest on said principal sum from July 11,2002, or from the most recent interest payment date (each such date, an“Interest Payment Date”) to which interest has been paid or duly provided for,quarterly (subject to deferral as set forth herein) in arrears on January 7th,April 7th, July 7th and October 7th of eachyear commencing October 7, 2002, at a variable per annum rate equal to LIBOR(as defined in the Indenture) plus 3.65% (the “Interest Rate”) (provided,that the applicable Interest Rate may not exceed 12.5% through theInterest Payment Date in July, 2007) 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 (and without any interest or otherpayment in respect of any such delay), 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 the principal of and 

 

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interest on this DebtSecurity will be made in immediately available funds at such place and to suchaccount as may be designated by the Trustee.

 

So long as no Event of Default has occurred and iscontinuing, the Company shall have the right, from time to time and withoutcausing an Event of Default, to defer payments of interest on the DebtSecurities by extending the interest payment period on the Debt Securities atany time and from time to time during the term of the Debt Securities, for upto 20 consecutive quarterly periods (each such extended interest paymentperiod, an “Extension Period”), during which Extension Period no interest shallbe due and payable (except any Additional Interest that may be due andpayable).  During any Extension Period,interest will continue to accrue on the Debt Securities, and interest on suchaccrued interest (such accrued interest and interest thereon referred to hereinas “Deferred Interest”) will accrue, at the Interest Rate, compounded quarterlyfrom the date such Deferred Interest would have been payable were it not forthe Extension Period, both to the extent permitted by law.  No Extension Period may end on a date otherthan an Interest Payment Date.  At theend of any such Extension Period the Company shall pay all Deferred Interestthen accrued and unpaid on the Debt Securities; provided,however,that no Extension Period may extend beyond the Maturity Date and provided,further, however, during any such Extension Period, the Companymay not (i) declare or pay any dividends or distributions on, or redeem,purchase, acquire, or make a liquidation payment with respect to, any of theCompany’s capital stock or (ii) make any payment of principal of or interestor premium, if any, on or repay, repurchase or redeem any debt securities ofthe Company that rank *pari passu* in all respects with or juniorin interest to the Debt Securities (other than (a) repurchases,redemptions or other acquisitions of shares of capital stock of the Company(A) in connection with any employment contract, benefit plan or othersimilar arrangement with or for the benefit of one or more employees, officers,directors or consultants, (B) in connection with a dividend reinvestmentor stockholder stock purchase plan or (C) in connection with the issuanceof capital stock of the Company (or securities convertible into or exercisablefor such capital stock), as consideration in an acquisition transaction enteredinto prior to the applicable Extension Period, (b) as a result of anyexchange or conversion of any class or series of the Company’s capital stock(or any capital stock of a subsidiary of the Company) for any class or seriesof the Company’s capital stock or of any class or series of the Company’sindebtedness for any class or series of the Company’s capital stock,(c) the purchase of fractional interests in shares of the Company’scapital stock pursuant to the conversion or exchange provisions of such capitalstock or the security being converted or exchanged, (d) any declaration ofa dividend in connection with any stockholder’s rights plan, or the issuance ofrights, stock or other property under any stockholder’s rights plan, or theredemption or repurchase of rights pursuant thereto, or (e) any dividendin the form of stock, warrants, options or other rights where the dividendstock or the stock issuable upon exercise of such warrants, options or otherrights is the same stock as that on which the dividend is being paid or ranks *pari passu*with or junior to such stock).  Prior tothe termination of any Extension Period, the Company may further extend suchperiod, provided, that such period together with all suchprevious and further consecutive extensions thereof shall not exceed 20consecutive quarterly periods, or extend beyond the Maturity Date.  Upon the termination of any Extension Periodand upon the payment of all Deferred Interest, the Company may commence a newExtension Period, subject to the foregoing requirements.  No interest or Deferred Interest shall bedue and payable during an Extension Period, except at the end thereof, butinterest shall accrue upon each installment of interest that would otherwisehave been due and payable during such Extension Period until such installment 

 

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is paid.  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 indebtedness evidenced by this Debt Security is,to the extent provided in the Indenture, subordinate and junior in right ofpayment to the prior payment in full of all Senior Indebtedness, and this DebtSecurity is issued subject to the provisions of the Indenture with respectthereto.  Each holder of this DebtSecurity, by accepting the same, (a) agrees to and shall be bound by suchprovisions, (b) authorizes and directs the Trustee on such holder’s behalfto take such action as may be necessary or appropriate to acknowledge oreffectuate the subordination so provided and (c) appoints the Trustee suchholder’s attorney-in-fact for any and all such purposes.  Each holder hereof, by such holder’sacceptance hereof, hereby waives all notice of the acceptance of thesubordination provisions contained herein and in the Indenture by each holderof Senior Indebtedness, whether now outstanding or hereafter incurred, andwaives reliance by each such holder upon said provisions.

 

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

 

This Debt Security shall not be entitled to anybenefit under the Indenture hereinafter referred to and shall not be valid orbecome obligatory for any purpose until the certificate of authenticationhereon shall have been signed by or on behalf of the Trustee.

 

The provisions of this Debt Security are continued onthe reverse side hereof and such continued provisions shall for all purposeshave the same effect as though fully set forth at this place.

 

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IN WITNESS WHEREOF, the Company has duly executed thiscertificate.

 
|   | HF FINANCIAL CORP. |
|--------|--------------------|
|   |               |   |
|   |               |   |
|   | By:                |   |
|   |               | [Name] |
|   |               | [Title] |
|   |               |   |
|   |               |   |
| Dated: |               | , |   |   |   |   |
|        |                    |  |  |  |  |  |

 

 

CERTIFICATE OFAUTHENTICATION

 

This is one of the Debt Securities referred to in thewithin-mentioned Indenture.

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

 

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[FORM OF REVERSE OFSECURITY]

 

This Debt Security is one of a duly authorized seriesof Debt Securities of the Company, all issued or to be issued pursuant to anIndenture (the “Indenture”), dated as of July 11, 2002, duly executed anddelivered between the Company and[                                   ],as Trustee (the “Trustee”), to which Indenture and all indentures supplementalthereto reference is hereby made for a description of the rights, limitationsof rights, obligations, duties and immunities thereunder of the Trustee, theCompany and the holders of the Debt Securities (referred to herein as the “DebtSecurities”) of which this Debt Security is a part.  The summary of the terms of this Debt Security contained hereindoes not purport to be complete and is qualified by reference to the Indenture.

 

Upon the occurrence and continuation of a Tax Event,an Investment Company Event or a Capital Treatment Event, this Debt Securitymay become due and payable, in whole but not in part, at any time, within90 days following the occurrence of such Tax Event, Investment CompanyEvent or Capital Treatment Event (the “Special Redemption Date”), as the casemay be, at the Special Redemption Price. The Company shall also have the right to redeem this Debt Security atthe option of the Company, in whole or in part, on any January 7th,April 7th, July 7th or October 7th on or afterJuly 7, 2007 (a “Redemption Date”), at the Redemption Price.

 

Any redemption pursuant to the preceding paragraphwill be made, subject to the receipt by the Company of prior approval from theOffice of Thrift Supervision (the “OTS”) if then required under applicablecapital guidelines or policies of the OTS, upon not less than 30 days’ normore than 60 days’ notice.  If theDebt Securities are only partially redeemed by the Company, the Debt Securitieswill be redeemed prorata**or by lot or by any other method utilizedby the Trustee.

 

“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 July 7, 2007.

 

“Special Redemption Price” means(1) if the Special Redemption Date is before July 7, 2007, the greater of (a) 100% of the principalamount of the Debt Securities being redeemed pursuant to Section 10.02 of the Indenture or (b) asdetermined by a Quotation Agent, the sum of the present values of the principalamount payable as part of the Redemption Price with respect to a redemption asof July 7, 2007, together with thepresent value of interest payments calculated at a fixed per annum rate ofinterest equal to 9.95% over the Remaining Life of such Debt Securities,discounted to the Special Redemption Date on a quarterly basis (assuming a360-day year consisting of twelve 30-day months) at the Treasury Rate plus..50%, plus, in the case of either (a) or (b), accrued and unpaid intereston such Debt Securities to the Special Redemption Date and (2) if theSpecial Redemption Date is on or after July 7, 2007, the Redemption Price for such SpecialRedemption Date.

 

“Comparable Treasury Issue” means, with respect to anySpecial Redemption Date, the United States Treasury security selected by theQuotation Agent as having a maturity 

 

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comparable to theRemaining Life that would be utilized, at the time of selection and inaccordance with customary financial practice, in pricing new issues ofcorporate debt securities of comparable maturity to the Remaining Life.  If no United States Treasury security has amaturity which is within a period from three months before to three monthsafter July 7, 2007, the two most closely corresponding United States Treasurysecurities shall be used as the Comparable Treasury Issue, and the TreasuryRate shall be interpolated or extrapolated on a straight-line basis, roundingto the nearest month using such securities.

 

“Comparable Treasury Price” means (a)the average offive 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.

 

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

 

“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.

 

“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 itsprincipal amount) quoted in writing to the Trustee by such Reference TreasuryDealer at 5:00 p.m., New York City time, on the third Business Day precedingsuch Special Redemption Date.

 

“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.

 

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In the event of redemption of this Debt Security inpart only, a new Debt Security or Debt Securities for the unredeemed portionhereof will be issued in the name of the holder hereof upon the cancellationhereof.

 

In case an Event of Default, as defined in theIndenture, shall have occurred and be continuing, the principal of all of theDebt Securities may be declared due and payable, and upon such declaration ofacceleration shall become due and payable, in the manner, with the effect andsubject to the conditions provided in the Indenture.

 

The Indenture contains provisions permitting theCompany and the Trustee, with the consent of the holders of not less than amajority in aggregate principal amount of the Debt Securities at the timeoutstanding affected thereby, as specified in the Indenture, to executesupplemental indentures for the purpose of adding any provisions to or changingin any manner or eliminating any of the provisions of the Indenture or of anysupplemental indenture or of modifying in any manner the rights of the holdersof the Debt Securities; provided, however, that no suchsupplemental indenture shall, among other things, without the consent of theholders of each Debt Security then outstanding and affected thereby(i) extend the fixed maturity of the Debt Securities, or reduce theprincipal amount thereof or any redemption premium thereon, or reduce the rateor extend the time of payment of interest thereon, or make the principal of, orany interest or premium on, the Debt Securities payable in any coin or currencyother than that provided in the Debt Securities, or impair or affect the rightof any holder of Debt Securities to institute suit for the payment thereof, or(ii) reduce the aforesaid percentage of Debt Securities, the holders ofwhich are required to consent to any such supplemental indenture.  The Indenture also contains provisionspermitting the holders of a majority in aggregate principal amount of the DebtSecurities at the time outstanding, on behalf of all of the holders of the DebtSecurities, to waive any past default in the performance of any of thecovenants contained in the Indenture, or established pursuant to the Indenture,and its consequences, except a default in the payment of the principal of orpremium, if any, or interest on any of the Debt Securities.  Any such consent or waiver by the registeredholder of this Debt Security (unless revoked as provided in the Indenture)shall be conclusive and binding upon such holder and upon all future holdersand owners of this Debt Security and of any Debt Security issued in exchange hereforor in place hereof (whether by registration of transfer or otherwise),irrespective of whether or not any notation of such consent or waiver is madeupon this Debt Security.

 

No reference herein to the Indenture and no provisionof this Debt Security or of the Indenture shall alter or impair the obligationof the Company, which is absolute and unconditional, to pay the principal ofand premium, if any, and interest on this Debt Security at the time and placeand at the rate and in the money herein prescribed.

 

As provided in the Indenture and subject to certainlimitations herein and therein set forth, this Debt Security is transferable bythe registered holder hereof on the Debt Security Register of the Company, uponsurrender of this Debt Security for registration of transfer at the office oragency of the Trustee in Wilmington, Delaware accompanied by a writteninstrument or instruments of transfer in form satisfactory to the Company orthe Trustee duly executed by the registered holder hereof or such holder’sattorney duly authorized in writing, and thereupon one or more new DebtSecurities of authorized denominations and for the same aggregate principalamount will be issued to the designated transferee or transferees.  No service charge will be

 

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made for any suchregistration of transfer, but the Company may require payment of a sumsufficient to cover any tax or other governmental charge payable in relationthereto.

 

Prior to due presentment for registration of transferof this Debt Security, the Company, the Trustee, any Authenticating Agent, anypaying agent, any transfer agent and the Debt Security registrar may deem andtreat the registered holder hereof as the absolute owner hereof (whether or notthis Debt Security shall be overdue and notwithstanding any notice of ownershipor writing 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 theprincipal of or the interest on this Debt Security, or for any claim basedhereon, or otherwise in respect hereof, or based on or in respect of theIndenture, against any incorporator, stockholder, officer or director, past,present or future, as such, of the Company or of any predecessor or successorcorporation, whether by virtue of any constitution, statute or rule of law, orby the enforcement of any assessment or penalty or otherwise, all suchliability being, by the acceptance hereof and as part of the consideration forthe issuance hereof, expressly waived and released.

 

The Debt Securities are issuable only in registeredcertificated form without coupons.  Asprovided in the Indenture and subject to certain limitations herein and thereinset forth, Debt Securities are exchangeable for a like aggregate principalamount of Debt Securities of a different authorized denomination, as requestedby the holder surrendering the same.

 

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

 

THE LAW OF THE STATE OF NEW YORK SHALL GOVERN THEINDENTURE AND THE DEBT SECURITIES, WITHOUT REGARD TO CONFLICT OF LAWSPRINCIPLES THEREOF.

 

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