Exhibit

4.3




 




CFB Capital IV




 




 




	

   


  	

  AMENDED AND RESTATED


  TRUST AGREEMENT


  	

   


  





 




 




among




 




Community First Bankshares, Inc., as

Depositor




 




Wilmington Trust Company, as Property

Trustee




 




Wilmington Trust Company, as Delaware

Trustee




 




The Administrative Trustees Named Herein




 




And




 




The Several Holders (as Defined

Herein)




 




 




Dated as of March 4, 2003




 





























 




TABLE OF CONTENTS




 




	

  ARTICLE I. – DEFINED TERMS


  
	

   


  	

  SECTION 101.  DEFINITIONS


  
	

   


  	

   


  
	

  ARTICLE II. –

  ESTABLISHMENT OF THE TRUST


  
	

   


  	

  SECTION

  201.  NAME


  
	

   


  	

  SECTION

  202.  OFFICE OF THE DELAWARE TRUSTEE;

  PRINCIPAL PLACE OF BUSINESS


  
	

   


  	

  SECTION

  203.  INITIAL CONTRIBUTION OF TRUST

  PROPERTY; ORGANIZATIONAL EXPENSES


  
	

   


  	

  SECTION

  204.  ISSUANCE OF THE CAPITAL

  SECURITIES


  
	

   


  	

  SECTION

  205.  ISSUANCE OF THE COMMON

  SECURITIES; SUBSCRIPTION AND PURCHASE OF JUNIOR SUBORDINATED DEBENTURES


  
	

   


  	

  SECTION 206.  DECLARATION OF TRUST


  
	

   


  	

  SECTION

  207.  AUTHORIZATION TO ENTER INTO

  CERTAIN TRANSACTIONS


  
	

   


  	

  SECTION 208.  ASSETS OF TRUST


  
	

   


  	

  SECTION

  209.  TITLE TO TRUST PROPERTY


  
	

   


  	

   


  
	

  ARTICLE

  III. – PAYMENT

  ACCOUNT


  
	

   


  	

  SECTION 301.  PAYMENT ACCOUNT


  
	

   


  	

   


  
	

  ARTICLE IV. –

  DISTRIBUTIONS; REDEMPTION


  
	

   


  	

  SECTION 401.  DISTRIBUTIONS


  
	

   


  	

  SECTION

  402.  REDEMPTION


  
	

   


  	

  SECTION

  403.  SUBORDINATION OF COMMON

  SECURITIES


  
	

   


  	

  SECTION 404.  PAYMENT PROCEDURES


  
	

   


  	

  SECTION

  405.  TAX RETURNS AND REPORTS


  
	

   


  	

  SECTION 406.  PAYMENT OF TAXES, DUTIES, ETC. OF THE

  TRUST


  
	

   


  	

  SECTION 407.  PAYMENTS UNDER INDENTURE


  
	

   


  	

   


  
	

  ARTICLE V. – TRUST SECURITIES

  CERTIFICATES


  
	

   


  	

  SECTION 501.  INITIAL OWNERSHIP


  
	

   


  	

  SECTION

  502.  THE TRUST SECURITIES

  CERTIFICATES


  
	

   


  	

  SECTION

  503.  EXECUTION AND DELIVERY OF TRUST

  SECURITIES CERTIFICATES


  
	

   


  	

  SECTION

  504.  REGISTRATION OF TRANSFER AND

  EXCHANGE OF CAPITAL SECURITIES CERTIFICATES


  
	

   


  	

  SECTION 505.  MUTILATED, DESTROYED, LOST OR STOLEN TRUST

  SECURITIES CERTIFICATES


  





 




i





























 




	

   


  	

  SECTION

  506.  PERSONS DEEMED SECURITYHOLDERS


  
	

   


  	

  SECTION

  507.  ACCESS TO LIST OF

  SECURITYHOLDERS’ NAMES AND ADDRESSES


  
	

   


  	

  SECTION

  508.  MAINTENANCE OF OFFICE OR AGENCY


  
	

   


  	

  SECTION

  509.  APPOINTMENT OF PAYING AGENT


  
	

   


  	

  SECTION

  510.  OWNERSHIP OF COMMON SECURITIES

  BY DEPOSITOR


  
	

   


  	

  SECTION

  511.  BOOK-ENTRY CAPITAL SECURITIES

  CERTIFICATES; COMMON SECURITIES CERTIFICATE


  
	

   


  	

  SECTION

  512.  NOTICES TO CLEARING AGENCY


  
	

   


  	

  SECTION

  513.  DEFINITIVE CAPITAL SECURITIES

  CERTIFICATES


  
	

   


  	

  SECTION

  514.  RIGHTS OF SECURITYHOLDERS


  
	

   


  	

   


  
	

  ARTICLE VI. –

  ACTS OF

  SECURITYHOLDERS; MEETINGS; VOTING


  
	

   


  	

  SECTION

  601.  LIMITATIONS ON VOTING RIGHTS


  
	

   


  	

  SECTION 602.  NOTICE OF MEETINGS


  
	

   


  	

  SECTION

  603.  MEETINGS OF HOLDERS OF CAPITAL

  SECURITIES


  
	

   


  	

  SECTION 604.  VOTING RIGHTS


  
	

   


  	

  SECTION 605.  PROXIES, ETC.


  
	

   


  	

  SECTION

  606.  SECURITYHOLDER ACTION BY WRITTEN

  CONSENT


  
	

   


  	

  SECTION

  607.  RECORD DATE FOR VOTING AND OTHER

  PURPOSES


  
	

   


  	

  SECTION

  608.  ACTS OF SECURITYHOLDERS


  
	

   


  	

  SECTION 609.  INSPECTION OF RECORDS


  
	

   


  	

   


  
	

  ARTICLE VII. – REPRESENTATIONS AND

  WARRANTIES


  
	

   


  	

  SECTION

  701.  REPRESENTATIONS AND WARRANTIES

  OF THE BANK AND THE PROPERTY TRUSTEE


  
	

   


  	

  SECTION

  702.  REPRESENTATIONS AND WARRANTIES

  OF THE DELAWARE BANK AND THE DELAWARE TRUSTEE


  
	

   


  	

  SECTION

  703.  REPRESENTATIONS AND WARRANTIES

  OF DEPOSITOR


  
	

   


  	

   


  
	

  ARTICLE

  VIII. – THE

  TRUSTEES


  
	

   


  	

  SECTION

  801.  CERTAIN DUTIES AND

  RESPONSIBILITIES


  
	

   


  	

  SECTION 802.  CERTAIN NOTICES


  
	

   


  	

  SECTION

  803.  CERTAIN RIGHTS OF PROPERTY

  TRUSTEE


  
	

   


  	

  SECTION

  804.  NOT RESPONSIBLE FOR RECITALS OR

  ISSUANCE OF SECURITIES


  
	

   


  	

  SECTION 805.  MAY HOLD SECURITIES


  
	

   


  	

  SECTION

  806.  COMPENSATION; INDEMNITY; FEES


  
	

   


  	

  SECTION

  807.  CORPORATE PROPERTY TRUSTEE

  REQUIRED; ELIGIBILITY OF TRUSTEES


  
	

   


  	

  SECTION 808.  CONFLICTING INTERESTS


  
	

   


  	

  SECTION

  809.  CO-TRUSTEES AND SEPARATE TRUSTEE


  
	

   


  	

  SECTION

  810.  RESIGNATION AND REMOVAL;

  APPOINTMENT OF SUCCESSOR


  





 




ii





























 




	

   


  	

  SECTION

  811.  ACCEPTANCE OF APPOINTMENT BY

  SUCCESSOR


  
	

   


  	

  SECTION 812.  MERGER, CONVERSION, CONSOLIDATION OR

  SUCCESSION TO BUSINESS


  
	

   


  	

  SECTION

  813.  PREFERENTIAL COLLECTION OF

  CLAIMS AGAINST DEPOSITOR OR TRUST


  
	

   


  	

  SECTION

  814.  REPORTS BY PROPERTY TRUSTEE


  
	

   


  	

  SECTION

  815.  REPORTS TO THE PROPERTY TRUSTEE


  
	

   


  	

  SECTION

  816.  EVIDENCE OF COMPLIANCE WITH

  CONDITIONS PRECEDENT


  
	

   


  	

  SECTION 817.  NUMBER OF TRUSTEES


  
	

   


  	

  SECTION 818.  DELEGATION OF POWER


  
	

   


  	

  SECTION

  819.  VOTING


  
	

   


  	

   


  
	

  ARTICLE IX. –

  DISSOLUTION,

  TERMINATION, LIQUIDATION AND MERGER


  
	

   


  	

  SECTION

  901.  DISSOLUTION, TERMINATION UPON

  EXPIRATION DATE


  
	

   


  	

  SECTION 902.  EARLY TERMINATION


  
	

   


  	

  SECTION 903.  TERMINATION


  
	

   


  	

  SECTION 904.  LIQUIDATION


  
	

   


  	

  SECTION 905.  MERGERS, CONSOLIDATIONS, AMALGAMATIONS OR

  REPLACEMENTS OF THE TRUST


  
	

   


  	

   


  
	

  ARTICLE X. – MISCELLANEOUS

  PROVISIONS


  
	

   


  	

  SECTION

  1001.  LIMITATION OF RIGHTS OF

  SECURITYHOLDERS


  
	

   


  	

  SECTION

  1002.  AMENDMENT


  
	

   


  	

  SECTION 1003.  SEPARABILITY


  
	

   


  	

  SECTION 1004.  GOVERNING LAW


  
	

   


  	

  SECTION

  1005.  PAYMENTS DUE ON NON-BUSINESS

  DAY


  
	

   


  	

  SECTION 1006.  SUCCESSORS


  
	

   


  	

  SECTION

  1007.  HEADINGS


  
	

   


  	

  SECTION 1008.  REPORTS, NOTICES AND DEMANDS


  
	

   


  	

  SECTION

  1009.  AGREEMENT NOT TO PETITION


  
	

   


  	

  SECTION

  1010.  TRUST INDENTURE ACT; CONFLICT

  WITH TRUST INDENTURE ACT


  
	

   


  	

  SECTION

  1011.  ACCEPTANCE OF TERMS OF TRUST

  AGREEMENT, GUARANTEE AND INDENTURE


  
	

   


  	

   


  
	

  Exhibit A


  	

  Certificate

  of Trust


  
	

  Exhibit B


  	

  Form of Certificate

  Depository Agreement


  
	

  Exhibit C


  	

  Form of Common

  Securities Certificate


  
	

  Exhibit D


  	

  Form of

  Expense Agreement


  
	

  Exhibit E


  	

  Form of Capital

  Securities Certificate


  
			





 




iii





























 




CROSS-REFERENCE

TABLE




 




	

  SECTION OF
TRUST INDENTURE ACT


  OF 1939, AS AMENDED


  	

   


  	

  SECTION OF

  AMENDED
AND RESTATED TRUST


  AGREEMENT


  	

   


  
	

   


  	

   


  	

   


  	

   


  
	

  310(a)(1)


  	

   


  	

  807


  	

   


  
	

  310(a)(2)


  	

   


  	

  807


  	

   


  
	

  310(a)(3)


  	

   


  	

  807


  	

   


  
	

  310(a)(4)


  	

   


  	

  207(a)(ii)


  	

   


  
	

  310(b)


  	

   


  	

  808


  	

   


  
	

  311(a)


  	

   


  	

  813


  	

   


  
	

  311(b)


  	

   


  	

  813


  	

   


  
	

  312(a)


  	

   


  	

  507


  	

   


  
	

  312(b)


  	

   


  	

  507


  	

   


  
	

  312(c)


  	

   


  	

  507


  	

   


  
	

  313(a)


  	

   


  	

  814(a)


  	

   


  
	

  313(a)(4)


  	

   


  	

  814(b)


  	

   


  
	

  313(b)


  	

   


  	

  814(b)


  	

   


  
	

  313(c)


  	

   


  	

  108


  	

   


  
	

  313(d)


  	

   


  	

  814(c)


  	

   


  
	

  314(a)


  	

   


  	

  815


  	

   


  
	

  314(b)


  	

   


  	

  Not Applicable


  	

   


  
	

  314(c)(1)


  	

   


  	

  816


  	

   


  
	

  314(c)(2)


  	

   


  	

  816


  	

   


  
	

  314(c)(3)


  	

   


  	

  Not Applicable


  	

   


  
	

  314(d)


  	

   


  	

  Not Applicable


  	

   


  
	

  314(e)


  	

   


  	

  101, 816


  	

   


  
	

  315(a)


  	

   


  	

  801(a), 803(a)


  	

   


  
	

  315(b)


  	

   


  	

  802, 108


  	

   


  
	

  315(c)


  	

   


  	

  801(a)


  	

   


  
	

  315(d)


  	

   


  	

  801, 803


  	

   


  
	

  315(e)


  	

   


  	

  Not Applicable


  	

   


  
	

  316(a)


  	

   


  	

  Not Applicable


  	

   


  
	

  316(a)(1)(A)


  	

   


  	

  Not Applicable


  	

   


  
	

  316(a)(1)(B)


  	

   


  	

  Not Applicable


  	

   


  
	

  316(a)(2)


  	

   


  	

  Not Applicable


  	

   


  
	

  316(b)


  	

   


  	

  Not Applicable


  	

   


  
	

  316(c)


  	

   


  	

  607


  	

   


  
	

  317(a)(1)


  	

   


  	

  Not Applicable


  	

   


  
	

  317(a)(2)


  	

   


  	

  Not Applicable


  	

   


  
	

  317(b)


  	

   


  	

  509


  	

   


  
	

  318(a)


  	

   


  	

  1010


  	

   


  





 




iv





























 




AMENDED AND

RESTATED TRUST AGREEMENT, dated as of March 4, 2003, among (i) Community First

Bankshares, Inc., a Delaware corporation (including any successors or assigns,

the “Depositor”), (ii) Wilmington Trust Company, a Delaware banking corporation

duly organized and existing under the laws of the State of Delaware, as

property trustee (the “Property Trustee” and, in its separate corporate

capacity and not in its capacity as Property Trustee, the “Bank”), (iii)

Wilmington Trust Company, a Delaware banking corporation duly organized and

existing under the laws of the State of Delaware, as Delaware trustee (the

“Delaware Trustee,” and, in its separate corporate capacity and not in its capacity

as Delaware Trustee, the “Delaware Bank”), (iv) Mark A. Anderson, an

individual, Craig A. Weiss, an individual, and Thomas R. Anderson, an

individual, each of whose address is c/o Community First Bankshares, Inc. (each

an “Administrative Trustee” and collectively the “Administrative Trustees”)

(the Property Trustee, the Delaware Trustee and the Administrative Trustees

referred to collectively as the “Trustees”) and (v) the several Holders, as

hereinafter defined.




 




W I T N E S S E T

H:




 




WHEREAS, the

Depositor, the Delaware Trustee, and Mark A. Anderson, Craig A. Weiss and

Thomas R. Anderson, each as an Administrative Trustee, have heretofore duly

declared and established a statutory trust pursuant to the Delaware Statutory

Trust Act by the entering into of that certain Trust Agreement, dated as of

February 20, 2002 (the “Original Trust Agreement”), and by the execution and

filing by the Delaware Trustee, the Depositor and the Administrative Trustees

with the Secretary of State of the State of Delaware of the Certificate of

Trust, filed on February 20, 2002, the form of which is attached as Exhibit

A; and




 




WHEREAS, the

Depositor, the Delaware Trustee, the Property Trustee and the Administrative

Trustees desire to amend and restate the Original Trust Agreement in its

entirety as set forth herein to provide for, among other things, (i) the

issuance of the Common Securities by the Trust to the Depositor, (ii) the

issuance and sale of the Capital Securities by the Trust pursuant to the

Underwriting Agreement, (iii) the acquisition by the Trust from the Depositor

of all of the right, title and interest in the Junior Subordinated Debentures

and (iv) the appointment of the Property Trustee;




 




NOW THEREFORE, in

consideration of the agreements and obligations set forth herein and for other

good and valuable consideration, the sufficiency of which is hereby

acknowledged, each party, for the benefit of the other parties and for the

benefit of the Securityholders, hereby amends and restates the Original Trust

Agreement in its entirety and agrees as follows:




 




1





























 




ARTICLE I.




 




DEFINED TERMS




 




SECTION

1.  DEFINITIONS.




 




For all purposes

of this Trust Agreement, except as otherwise expressly provided or unless the

context otherwise requires:




 




(a)                                  the

terms defined in this Article have the meanings assigned to them in this

Article and include the plural as well as the singular;




 




(b)                                 all

other terms used herein that are defined in the Trust Indenture Act, either

directly or by reference therein, have the meanings assigned to them therein;




 




(c)                                  unless

the context otherwise requires, any reference to an “Article” or a “Section”

refers to an Article or a Section, as the case may be, of this Trust Agreement;

and




 




(d)                                 the

words “herein”, “hereof” and “hereunder” and other words of similar import

refer to this Trust Agreement as a whole and not to any particular Article,

Section or other subdivision.




 




“Act” has the

meaning specified in Section 608.




 




“Additional

Amount” means, with respect to Trust Securities of a given Liquidation Amount

and/or a given period, the amount of additional interest accrued on interest in

arrears and paid by the Depositor on a Like Amount of Junior Subordinated

Debentures for such period.




 




“Additional Sums”

has the meaning specified in Section 2.5 of the Indenture.




 




“Administrative

Trustee” means each of Mark A. Anderson, Craig A. Weiss, and Thomas R.

Anderson, solely in such person’s capacity as Administrative Trustee of the

Trust and not in such person’s individual capacity, or such Administrative

Trustee’s successor in interest in such capacity, or any successor

Administrative Trustee appointed as herein provided.




 




“Affiliate” of any

specified Person means any other Person directly or indirectly controlling or

controlled by or under direct or indirect common control with such specified

Person.  For the purposes of this

definition, “control” when used with respect to any specified Person means the

power to direct the management and policies of such Person, directly or

indirectly, whether through the ownership of voting securities, by contract or

otherwise; and the terms “controlling” and “controlled” have meanings

correlative to the foregoing.




 




“Bank” has the

meaning specified in the preamble to this Trust Agreement.




 




2





























 




“Bankruptcy Event”

means, with respect to any Person:




 




(a)                                  the

entry of a decree or order by a court having jurisdiction in the premises

adjudging such Person a bankrupt or insolvent, or approving as properly filed a

petition seeking liquidation or reorganization of or in respect of such Person

under the Federal Bankruptcy Code or any other similar applicable Federal or

State law, and the continuance of any such decree or order unvacated and unstayed

for a period of 90 days; or the commencement of an involuntary case under the

Federal Bankruptcy Code in respect of such Person, which shall continue

undismissed for a period of 90 days or entry of an order for relief in such

case; or the entry of a decree or order of a court having jurisdiction in the

premises for the appointment on the ground of insolvency or bankruptcy of a

receiver, custodian, liquidator, trustee or assignee in bankruptcy or

insolvency of such Person or of its property, or for the winding up or

liquidation of its affairs, and such decree or order shall have remained in

force unvacated and unstayed for a period of 90 days; or




 




(b)                                 the

institution by such Person of proceedings to be adjudicated a voluntary

bankrupt, or the consent by such Person to the filing of a bankruptcy

proceeding against it, or the filing by such Person of a petition or answer or

consent seeking liquidation or reorganization under the Federal Bankruptcy Code

or other similar applicable Federal or State law, or the consent by such Person

to the filing of any such petition or to the appointment on the ground of

insolvency or bankruptcy of a receiver or custodian or liquidator or trustee or

assignee in bankruptcy or insolvency of such Person or of its property, or such

Person shall make a general assignment for the benefit of creditors.




 




“Bankruptcy Laws”

has the meaning specified in Section 1009.




 




“Board Resolution”

means a copy of a resolution certified by the Secretary or an Assistant

Secretary of the Depositor to have been duly adopted by the Depositor’s Board

of Directors, or such committee of the Board of Directors or officers of the

Depositor to which authority to act on behalf of the Board of Directors has

been delegated, and to be in full force and effect on the date of such

certification, and delivered to the appropriate Trustee.




 




“Book-Entry

Capital Securities Certificates” means certificates representing Capital

Securities issued in global, fully registered form to the Clearing Agency as

described in Section 511.




 




“Business Day”

means a day other than (a) a Saturday or Sunday, (b) a day on which banking

institutions in the State of Minnesota are authorized or required by law or

executive order to remain closed, or (c) a day on which the Property Trustee’s

Corporate Trust Office or the Corporate Trust Office of the Debenture Trustee

is closed for business.




 




“Capital

Securities” means an undivided beneficial interest in the assets of the Trust,

designated “7.60% Cumulative Capital Securities,” having a Liquidation Amount

of $25 and having the rights provided therefor in this Trust Agreement,

including the right to receive Distributions and a Liquidation Distribution as

provided herein.




 




3





























 




“Capital

Securities Certificate” means a certificate evidencing ownership of Capital

Securities, substantially in the form attached as Exhibit E.




 




“Certificate

Depository Agreement” means the agreement among the Trust, the Property Trustee

and The Depository Trust Company, as the initial Clearing Agency, dated as of

the Closing Date, relating to the Trust Securities Certificates, substantially

in the form attached as Exhibit B, as the same may be amended and

supplemented from time to time.




 




“Certificate of

Trust” means the certificate of trust filed with the Secretary of State of the

State of Delaware with respect to the Trust, as amended or restated from time

to time.




 




“Clearing Agency”

means an organization registered as a “clearing agency” pursuant to Section 17A

of the Securities Exchange Act of 1934, as amended.  The Depository Trust Company will be the initial Clearing Agency.




 




“Clearing Agency

Participant” means a broker, dealer, bank, other financial institution or other

Person for whom from time to time a Clearing Agency effects book-entry

transfers and pledges of securities deposited with the Clearing Agency.




 




“Closing Date”

means the date of execution and delivery of this Trust Agreement.




 




“Code” means the

Internal Revenue Code of 1986, as amended.




 




“Commission” means

the Securities and Exchange Commission, as from time to time constituted,

created under the Securities Exchange Act of 1934, as amended, or, if at any

time after the execution of this Trust Agreement such Commission is not

existing and performing the duties now assigned to it under the Trust Indenture

Act, then the body performing such duties at such time.




 




“Common Security”

means a common undivided beneficial interest in the assets of the Trust, having

a Liquidation Amount of $25 and having the rights provided therefor in this

Trust Agreement, including the right to receive Distributions and a Liquidation

Distribution as provided herein.




 




“Common Securities

Certificate” means a certificate evidencing ownership of Common Securities,

substantially in the form attached as Exhibit C.




 




“Corporate Trust

Office” means the principal corporate trust office of the Property Trustee

located at Rodney Square North, 1100 North Market Street, Wilmington, Delaware,

19890-0001, Attn: Corporate Trust Administration.




 




“Debenture Event of

Default” means an “Event of Default” as defined in the Indenture.




 




“Debenture

Redemption Date” means, with respect to any Junior Subordinated Debentures to

be redeemed under the Indenture, the date fixed for redemption under the

Indenture.




 




4





























 




“Debenture

Trustee” means Wilmington Trust Company, a Delaware banking corporation

organized under the laws of the State of Delaware and any successor thereto, as

trustee under the Indenture.




 




“Definitive

Capital Securities Certificates” means either or both (as the context requires)

of (a) Capital Securities Certificates issued as Book-Entry Capital Securities

Certificates as provided in Section 511(a), and (b) Capital Securities

Certificates issued in certificated, fully registered form as provided in

Section 513.




 




“Delaware Bank”

has the meaning specified in the preamble to this Trust Agreement.




 




“Delaware

Statutory Trust Act” means Chapter 38 of Title 12 of the Delaware Code, 12

Delaware Code Sections 3801 et seq as it may be amended from time to time.




 




“Delaware Trustee”

means the commercial bank or trust company identified as the “Delaware Trustee”

in the preamble to this Trust Agreement solely in its capacity as Delaware

Trustee of the Trust and not in its individual capacity, or its successor in

interest in such capacity, or any successor Delaware Trustee appointed as

herein provided.




 




“Depositor” has

the meaning specified in the preamble to this Trust Agreement.




 




“Distribution

Date” has the meaning specified in Section 401(a).




 




“Distributions”

means amounts payable in respect of the Trust Securities as provided in Section

401.




 




“Event of Default”

means any one of the following events shall have occurred and be continuing

(whatever the reason for such Event of Default and whether it shall be

voluntary or involuntary or be effected by operation of law or pursuant to any

judgment, decree or order of any court or any order, rule or regulation of any

administrative or governmental body):




 




(a)                                  the

occurrence of a Debenture Event of Default; or




 




(b)                                 default

by the Trust in the payment of any Distribution when it becomes due and

payable, and continuation of such default for a period of 30 days; or




 




(c)                                  default

by the Trust in the payment of any Redemption Price of any Trust Security when

it becomes due and payable; or




 




(d)                                 default

in the performance, or breach, in any material respect, of any covenant or

warranty of the Property Trustee in this Trust Agreement (other than a covenant

or warranty, a default in the performance of which or the breach of which is

dealt with in clause (b) or (c), above) and continuation of such default or

breach for a period of 60 days after there has been given, by registered or

certified mail, to the defaulting Property Trustee by the Holders of at least

25% in aggregate Liquidation Amount of the Outstanding Capital Securities a

written notice specifying such default or breach and requiring it to be

remedied and stating that such notice is a “Notice of Default” hereunder; or




 




5





























 




(e)                                  the

occurrence of a Bankruptcy Event with respect to the Property Trustee and the

failure by the Depositor to appoint a successor Property Trustee within 60 days

thereof.




 




“Exchange Act”

means the Securities Exchange Act of 1934, as amended.




 




“Expense

Agreement” means the Agreement as to Expenses and Liabilities between the

Depositor and the Trust, substantially in the form attached as Exhibit D,

as amended from time to time.




 




“Expiration Date”

has the meaning specified in Section 901.




 




“Extension Period”

means the “Extended Interest Payment Period” as defined in the Indenture.




 




“Global

Subordinated Debenture” has the meaning specified in the Indenture.




 




“Guarantee” means

the Capital Securities Guarantee Agreement executed and delivered by the

Depositor and Wilmington Trust Company as trustee, contemporaneously with the

execution and delivery of this Trust Agreement, for the benefit of the holders

of the Capital Securities, as amended from time to time.




 




“Holder” means a

Securityholder.




 




“Indenture” means

the Subordinated Indenture, dated as of March 4, 2003, between the Depositor

and the Debenture Trustee, as trustee, as amended or supplemented from time to

time.




 




“Investment

Company Act” means the Investment Company Act of 1940, as amended.




 




“Investment

Company Event” means the receipt by the Depositor and the Trust of an Opinion

of Counsel experienced in such matters to the effect that, as a result of the

occurrence of a change in law or regulation or a change in interpretation or

application of law or regulation by any legislative body, court, governmental

agency or regulatory authority (a “Change in Investment Company Act Law”), the

Trust is or will be considered an “investment company” that is required to be

registered under the Investment Company Act, which Change in Investment Company

Act Law becomes effective on or after the date of original issuance of the

Capital Securities under this Trust Agreement.




 




“Junior Subordinated

Debentures” means the $61,855,675 aggregate principal amount of the Depositor’s

7.60% Junior Subordinated Debentures, issued pursuant to the Indenture.




 




“Lien” means any

lien, pledge, charge, encumbrance, mortgage, deed of trust, adverse ownership

interest, hypothecation, assignment, security interest or preference, priority

or other security agreement or preferential arrangement of any kind or nature

whatsoever.




 




“Like Amount”

means (a) with respect to a redemption of Trust Securities, Trust Securities

having a Liquidation Amount equal to the principal amount of Junior

Subordinated




 




6





























 




Debentures to be contemporaneously redeemed in accordance with the

Indenture and the proceeds of which will be used to pay the Redemption Price of

such Trust Securities and (b) with respect to a distribution of Junior

Subordinated Debentures to Holders of Trust Securities in connection with a

termination or liquidation of the Trust, Junior Subordinated Debentures having

a principal amount equal to the Liquidation Amount of the Trust Securities of

the Holder to whom such Junior Subordinated Debentures are distributed.




 




“Liquidation

Amount” means the stated amount of $25 per Trust Security.




 




“Liquidation Date”

means the date on which Junior Subordinated Debentures are to distributed to

Holders of Trust Securities in connection with a termination and liquidation of

the Trust pursuant to Section 904(a).




 




“Liquidation

Distribution” has the meaning specified in Section 904(d).




 




“Officers’

Certificate” means a certificate signed by the President or a Vice President

and by the Chief Financial Officer or the Controller or an Assistant Controller

or the Secretary or an Assistant Secretary, of the Depositor, and delivered to

the appropriate Trustee.  One of the

officers signing an Officers’ Certificate given pursuant to Section 816 shall

be the principal executive, financial or accounting officer of the

Depositor.  Any Officers’ Certificate

delivered with respect to compliance with a condition or covenant provided for

in this Trust Agreement shall include:




 




(a)                                  a

statement that each officer signing the Officers’ Certificate has read the

covenant or condition and the definitions relating thereto;




 




(b)                                 a

brief statement of the nature and scope of the examination or investigation

undertaken by each officer in rendering the Officers’ Certificate;




 




(c)                                  a

statement that each such officer has made such examination or investigation as,

in such officer’s opinion, is necessary to enable such officer to express an

informed opinion as to whether or not such covenant or condition has been

complied with; and




 




(d)                                 a

statement as to whether, in the opinion of each such officer, such condition or

covenant has been complied with.




 




“Opinion of

Counsel” means a written opinion of counsel, who may be counsel for the Trust,

the Property Trustee, the Delaware Trustee or the Depositor, but not an

employee of any thereof, and who shall be reasonably acceptable to the Property

Trustee.




 




“Original Trust

Agreement” has the meaning specified in the recitals to this Trust Agreement.




 




“Outstanding”,

when used with respect to Capital Securities, means, as of the date of

determination, all Capital Securities theretofore executed and delivered under

this Trust Agreement, except:




 




7





























 




(a)                                  Capital

Securities theretofore cancelled by the Property Trustee or delivered to the

Property Trustee for cancellation;




 




(b)                                 Capital

Securities for whose payment or redemption money in the necessary amount has

been theretofore deposited with the Property Trustee or any Paying Agent for

the Holders of such Capital Securities; provided that, if such Capital

Securities are to be redeemed, notice of such redemption has been duly given

pursuant to this Trust Agreement; and




 




(c)                                  Capital

Securities which have been paid or in exchange for or in lieu of which other

Capital Securities have been executed and delivered pursuant to Sections 504,

505, 511 and 513; provided, however, that in determining whether the Holders of

the requisite Liquidation Amount of the Outstanding Capital Securities have

given any request, demand, authorization, direction, notice, consent or waiver

hereunder, Capital Securities owned by the Depositor, any Trustee or any

Affiliate of the Depositor or any Trustee shall be disregarded and deemed not

to be Outstanding, except that (i) in determining whether any Trustee shall be

protected in relying upon any such request, demand, authorization, direction,

notice, consent or waiver, only Capital Securities that such Trustee knows to

be so owned shall be so disregarded and (ii) the foregoing shall not apply at

any time when all of the Outstanding Capital Securities are owned by the

Depositor, one or more of the Trustees and/or any such Affiliate.  Capital Securities so owned which have been

pledged in good faith may be regarded as Outstanding if the pledgee establishes

to the satisfaction of the Administrative Trustees the pledgee’s right as to

such Capital Securities so owned.




 




“Owner” means each

Person who is the beneficial owner of a Book-Entry Capital Securities

Certificate as reflected in the records of the Clearing Agency or, if a

Clearing Agency Participant is not the Owner, then as reflected in the records

of a Person maintaining an account with such Clearing Agency (directly or indirectly,

in accordance with the rules of such Clearing Agency).




 




“Paying Agent”

means any paying agent or co-paying agent appointed pursuant to Section 509 and

shall initially be the Bank.




 




“Payment Account”

means a segregated non-interest-bearing corporate trust account maintained by

the Property Trustee with the Bank in its trust department for the benefit of

the Securityholders in which all amounts paid in respect of the Junior

Subordinated Debentures will be held and from which the Property Trustee shall make

payments to the Securityholders in accordance with Sections 401 and 402.




 




“Person” means any

individual, corporation, partnership, joint venture, trust, limited liability

company or corporation, unincorporated organization or government or any agency

or political subdivision thereof.




 




“Property Trustee”

means the commercial bank or trust company identified as the “Property Trustee”

in the preamble to this Trust Agreement solely in its capacity as Property

Trustee of the Trust heretofore formed and continued hereunder and not in its

individual capacity, or its successor in interest in such capacity, or any

successor Property Trustee appointed as herein provided.




 




8





























 




“Redemption Date”

means, with respect to any Trust Security to be redeemed, the date fixed for

such redemption by or pursuant to this Trust Agreement; provided that each

Debenture Redemption Date and the stated maturity of the Junior Subordinated

Debentures shall be a Redemption Date for a Like Amount of Trust Securities.




 




“Redemption Price”

means, with respect to any Trust Security to be redeemed, the Liquidation

Amount of such Trust Security, plus accumulated and unpaid Distributions to the

Redemption Date allocated on a pro rata basis (based on Liquidation Amounts)

among the Trust Securities to be redeemed.




 




“Relevant Trustee”

shall have the meaning specified in Section 810.




 




“Securities

Register” and “Securities Registrar” have the respective meanings specified in

Section 504.




 




“Securityholder” means

a Person in whose name a Trust Security or Securities is registered in the

Securities Register; any such Person is a beneficial owner within the meaning

of the Delaware Statutory Trust Act.




 




“Tax Event” means

the receipt by the Depositor or the Trust of an Opinion of Counsel experienced

in such matters to the effect that, as a result of any amendment to, or change

(including any announced prospective change) in, the laws (or any regulations

thereunder) of the United States or any political subdivision or taxing

authority thereof or therein, or as a result of any official administrative

pronouncement or judicial decision interpreting or applying such laws or

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

decision is announced on or after the date of issuance of the Capital

Securities under this Trust Agreement, or the Junior Subordinated Debentures

under the Indenture, as the case may be, there is more than an insubstantial

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

Opinion of Counsel, subject to United States federal income tax with respect to

income received or accrued on the Junior Subordinated Debentures, (ii) interest

payable by the Depositor on the Junior Subordinated Debentures is not, or

within 90 days after the date of such Opinion of Counsel will not be,

deductible by the Depositor, in whole or in part, for United States federal

income tax purposes or (iii) the Trust is, or will be within 90 days after the

date of such Opinion of Counsel, subject to more than a de minimis amount of

other taxes, duties, assessments or other governmental charges.




 




“Trust” means the

Delaware statutory trust created and continued hereby and identified on the

cover page to this Trust Agreement.




 




“Trust Agreement”

means this Amended and Restated Trust Agreement, as the same may be modified,

amended or supplemented in accordance with the applicable provisions hereof,

including all exhibits hereto, including, for all purposes of this Trust

Agreement and any such modification, amendment or supplement, the provisions of

the Trust Indenture Act that are deemed to be a part of and govern this Trust

Agreement and any such modification, amendment or supplement, respectively.




 




9





























 




“Trust Indenture

Act” means the Trust Indenture Act of 1939 as in force at the date as of which

this Trust Agreement was executed; provided, however, that in the event the

Trust Indenture Act of 1939 is amended after such date, “Trust Indenture Act”

means, to the extent required by any such amendment, the Trust Indenture Act of

1939 as so amended.




 




“Trust Property”

means (a) the Junior Subordinated Debentures, (b) any cash on deposit in, or

owing to, the Payment Account and (d) all proceeds and rights in respect of the

foregoing and any other property and assets for the time being held or deemed

to be held by the Property Trustee pursuant to the trusts of this Trust

Agreement.




 




“Trust Security”

means any one of the Common Securities or the Capital Securities.




 




“Trust Securities

Certificate” means any one of the Common Securities Certificates or the Capital

Securities Certificates.




 




“Trustees” means,

collectively, the Property Trustee, the Delaware Trustee and the Administrative

Trustees.




 




“Underwriting

Agreement” means the Purchase Agreement, dated as of February 26, 2003, among

the Trust, the Depositor and the Purchasers named therein.




 




ARTICLE II.




ESTABLISHMENT OF THE TRUST




 




SECTION 201. 

NAME.




 




The Trust created and continued hereby shall be known

as “CFB Capital IV,” as such name may be modified from time to time by the

Administrative Trustees following written notice to the Holders of Trust

Securities and the other Trustees, in which name the Trustees may engage in the

transactions contemplated hereby, make and execute contracts and other

instruments on behalf of the Trust and sue and be sued.




 




SECTION 202. 

OFFICE OF THE DELAWARE TRUSTEE; PRINCIPAL PLACE OF BUSINESS.




 




The address of the

Delaware Trustee in the State of Delaware is c/o Wilmington Trust Company, 1100

North Market Street, Wilmington, Delaware 19890, Attention: Corporate Trust

Administration, or such other address in the State of Delaware as the Delaware

Trustee may designate by written notice to the Securityholders and the Depositor.  The principal executive office of the Trust

is c/o Community First Bankshares, Inc., 520 Main Avenue, Fargo, North Dakota

58124-0001.




 




10





























 




SECTION 203. 

INITIAL CONTRIBUTION OF TRUST PROPERTY; ORGANIZATIONAL EXPENSES.




 




The Trustees acknowledge receipt in trust from the

Depositor in connection with the Original Trust Agreement of the sum of $10,

which constituted the initial Trust Property. 

The Depositor shall pay organizational expenses of the Trust as they

arise or shall, upon request of any Trustee, promptly reimburse such Trustee

for any such expenses paid by such Trustee. 

The Depositor shall make no claim upon the Trust Property for the

payment of such expenses.




 




SECTION 204. 

ISSUANCE OF THE CAPITAL SECURITIES.




 




The Depositor, on

behalf of the Trust and pursuant to the Original Trust Agreement, executed and

delivered the Underwriting Agreement. 

Contemporaneously with the execution and delivery of this Trust

Agreement, an Administrative Trustee, on behalf of the Trust, shall execute in

accordance with Section 502 and deliver, in accordance with the Underwriting

Agreement, Capital Securities Certificates, registered in the name of the

nominee of the initial Clearing Agency, in an aggregate amount of Capital

Securities having an aggregate Liquidation Amount of $60,000,000 against

receipt of the aggregate purchase price of such Capital Securities of

$60,000,000, which amount such Administrative Trustee shall promptly deliver to

the Property Trustee.




 




SECTION 205. 

ISSUANCE OF THE COMMON SECURITIES; SUBSCRIPTION AND PURCHASE OF JUNIOR SUBORDINATED

DEBENTURES.




 




Contemporaneously

with the execution and delivery of this Trust Agreement, an Administrative

Trustee, on behalf of the Trust, shall execute in accordance with Section 502

and deliver to the Depositor Common Securities Certificates, registered in the

name of the Depositor, in an aggregate amount of Common Securities having an

aggregate Liquidation Amount of $1,855,675 against delivery by the Depositor of

$1,855,675 in principal amount of Junior Subordinated Debentures.  Contemporaneously therewith, an

Administrative Trustee, on behalf of the Trust, shall subscribe to and purchase

from the Depositor Junior Subordinated Debentures, registered in the name of

the Property Trustee on behalf of the Trust and having an aggregate principal

amount equal to $61,855,675, and, in satisfaction of the purchase price for

such Junior Subordinated Debentures, the Property Trustee, on behalf of the

Trust, shall deliver to the Depositor the sum of $61,855,675.




 




SECTION 206. 

DECLARATION OF TRUST.




 




The exclusive

purposes and functions of the Trust are (a) to issue and sell Trust Securities

and use the proceeds from such sale to acquire the Junior Subordinated

Debentures, and (b) to engage in those activities necessary, convenient or

incidental thereto.  The Depositor

hereby appoints the Trustees as trustees of the Trust, to have all the rights,

powers and duties to the extent set forth herein, and the Trustees hereby

accept such appointment.  The Property

Trustee hereby declares that it will hold the Trust Property in trust upon and

subject to the conditions set forth herein for the benefit of the

Securityholders.  The Administrative

Trustees shall have all rights, powers and duties set forth herein and in

accordance with applicable law with respect to accomplishing the purposes of

the Trust.  The Delaware Trustee shall

not be entitled to exercise




 




11





























 




any powers, nor shall the Delaware Trustee have any of the duties and

responsibilities, of the Property Trustee or the Administrative Trustees set

forth herein.  The Delaware Trustee

shall be one of the Trustees of the Trust for the sole and limited purpose of

fulfilling the requirements of Section 3807 of the Delaware Statutory Trust

Act.




 




SECTION 207. 

AUTHORIZATION TO ENTER INTO CERTAIN TRANSACTIONS.




 




(a)                                  The

Trustees shall conduct the affairs of the Trust in accordance with the terms of

this Trust Agreement.  Subject to the

limitations set forth in paragraph (b) of this Section and Article VIII, and in

accordance with the following provisions (i) and (ii), the Administrative

Trustees shall have the authority to enter into all transactions and agreements

determined by the Administrative Trustees to be appropriate in exercising the

authority, express or implied, otherwise granted to the Administrative Trustees

under this Trust Agreement, and to perform all acts in furtherance thereof,

including without limitation, the following:




 




(i)                                     As

among the Trustees, each Administrative Trustee, acting singly or jointly,

shall have the power and authority to act on behalf of the Trust with respect

to the following matters:




 




(A)                              the

issuance and sale of the Trust Securities;




 




(B)                                to

cause the Trust to enter into, and to execute, deliver and perform on behalf of

the Trust, the Expense Agreement and the Certificate Depository Agreement and

such other agreements or documents as may be necessary or desirable in

connection with the purposes and function of the Trust;




 




(C)                                assisting

in the registration of the Capital Securities under the Securities Act of 1933,

as amended, and under state securities or blue sky laws, and the qualification

of this Trust Agreement as a trust indenture under the Trust Indenture Act;




 




(D)                               assisting

in the listing of the Capital Securities upon the Nasdaq National Market or

such securities exchange or exchanges as shall be determined by the Depositor

and, if required, the registration of the Capital Securities under the Securities

Exchange Act of 1934, as amended, and the preparation and filing of all

periodic and other reports and other documents pursuant to the foregoing;




 




(E)                                 the

sending of notices (other than notices of default) and other information

regarding the Trust Securities and the Junior Subordinated Debentures to the

Securityholders in accordance with this Trust Agreement;




 




(F)                                 the

appointment of a Paying Agent, authenticating agent and Securities Registrar in

accordance with this Trust Agreement;




 




(G)                                to

the extent provided in this Trust Agreement, the winding up of the affairs of

and liquidation of the Trust and the preparation, execution and filing




 




12





























 




of the certificate

of cancellation with the Secretary of State of the State of Delaware;




 




(H)                               to

take all action that may be necessary or appropriate for the preservation and

the continuation of the Trust’s valid existence, rights, franchises and

privileges as a statutory trust under the laws of the State of Delaware and of

each other jurisdiction in which such existence is necessary to protect the

limited liability of the Holders of the Capital Securities or to enable the

Trust to effect the purposes for which the Trust was created; and




 




(I)                                    the

taking of any action incidental to the foregoing as the Administrative Trustees

may from time to time determine is necessary or advisable to give effect to the

terms of this Trust Agreement for the benefit of the Securityholders (without

consideration of the effect of any such action on any particular

Securityholder).




 




(ii)                                  As

among the Trustees, the Property Trustee shall have the power, duty and

authority to act on behalf of the Trust with respect to the following matters:




 




(A)                              the

establishment of the Payment Account;




 




(B)                                the

receipt of the Junior Subordinated Debentures;




 




(C)                                the

collection of interest, principal and any other payments made in respect of the

Junior Subordinated Debentures in the Payment Account;




 




(D)                               the

distribution of amounts owed to the Securityholders in respect of the Trust

Securities in accordance with the terms of this Trust Agreement;




 




(E)                                 the

exercise of all of the rights, powers and privileges of a holder of the Junior

Subordinated Debentures;




 




(F)                                 the

sending of notices of default and other information regarding the Trust

Securities and the Junior Subordinated Debentures to the Securityholders in

accordance with this Trust Agreement;




 




(G)                                the

distribution of the Trust Property in accordance with the terms of this Trust

Agreement;




 




(H)                               to

the extent provided in this Trust Agreement, the winding up of the affairs of

and liquidation of the Trust;




 




(I)                                    after

an Event of Default the taking of any action incidental to the foregoing as the

Property Trustee may from time to time determine is necessary or advisable to

give effect to the terms of this Trust Agreement and protect and conserve the

Trust Property for the benefit of the Securityholders (without consideration of

the effect of any such action on any particular Securityholder);




 




13





























 




(J)                                   so

long as the Property Trustee is the Securities Registrar, registering transfers

of the Trust Securities in accordance with this Trust Agreement; and




 




(K)                               except

as otherwise provided in this Section 207(a)(ii), the Property Trustee shall

have none of the duties, liabilities, powers or the authority of the

Administrative Trustees set forth in Section 207(a)(i).




 




(b)                                 So

long as this Trust Agreement remains in effect, the Trust (or the Trustees

acting on behalf of the Trust) shall not undertake any business, activities or

transaction except as expressly provided herein or contemplated hereby.  In particular, the Trustees shall not (i)

acquire any investments or engage in any activities not authorized by this

Trust Agreement, (ii) sell, assign, transfer, exchange, mortgage, pledge,

set-off or otherwise dispose of any of the Trust Property or interests therein,

including to Securityholders, except as expressly provided herein, (iii) take

any action that would cause the Trust to fail or cease to qualify as a “grantor

trust” for United States federal income tax purposes, (iv) incur any

indebtedness for borrowed money or issue any other debt or (v) take or consent

to any action that would result in the placement of a Lien on any of the Trust

Property.  The Administrative Trustees

shall defend all claims and demands of all Persons at any time claiming any

Lien on any of the Trust Property adverse to the interest of the Trust or the

Securityholders in their capacity as Securityholders.




 




(c)                                  In

connection with the issue and sale of the Capital Securities, the Depositor

shall have the right and responsibility to assist the Trust with respect to, or

effect on behalf of the Trust, the following (and any actions taken by the

Depositor in furtherance of the following prior to the date of this Trust

Agreement are hereby ratified and confirmed in all respects):




 




(i)                                     the

preparation and filing by the Trust with the Commission and the execution on

behalf of the Trust of a registration statement on the appropriate form in

relation to the Capital Securities and the Junior Subordinated Debentures,

including any amendments thereto;




 




(ii)                                  the

determination of the states in which to take appropriate action to qualify or

register for sale all or part of the Capital Securities and to do any and all

such acts, other than actions which must be taken by or on behalf of the Trust,

and advise the Trustees of actions they must take on behalf of the Trust, and

prepare for execution and filing any documents to be executed and filed by the

Trust or on behalf of the Trust, as the Depositor deems necessary or advisable

in order to comply with the applicable laws of any such states;




 




(iii)                               the

preparation for filing by the Trust and execution on behalf of the Trust of an

application to the Nasdaq National Market or a national stock exchange or other

organizations for listing upon notice of issuance of any Capital Securities and

to file or cause an Administrative Trustee to file thereafter with such

exchange or organization such notifications and documents as may be necessary

from time to time;




 




14





























 




(iv)                              if

required, the preparation for filing by the Trust with the Commission and the

execution on behalf of the Trust of a registration statement on Form 8-A

relating to the registration of the Capital Securities under Section 12(b) or

12(g) of the Exchange Act, including any amendments thereto;




 




(v)                                 the

negotiation of the terms of, and the execution and delivery of, the Underwriting

Agreement providing for the sale of the Capital Securities; and




 




(vi)                              the

taking of any other actions necessary or desirable to carry out any of the

foregoing activities.




 




(d)                                 Notwithstanding

anything herein to the contrary, the Administrative Trustees are authorized and

directed to conduct the affairs of the Trust and to operate the Trust so that

the Trust will not be deemed to be an “investment company” required to be

registered under the Investment Company Act, will be classified as a “grantor

trust” and not as an association taxable as a corporation for United States

federal income tax purposes and so that the Junior Subordinated Debentures will

be treated as indebtedness of the Depositor for United States federal income

tax purposes. In this connection, subject to Section 1002, the Depositor and

the Administrative Trustees are authorized to take any action, not inconsistent

with applicable law or this Trust Agreement, that each of the Depositor and the

Administrative Trustees determines in their discretion to be necessary or

desirable for such purposes.




 




SECTION 208. 

ASSETS OF TRUST.




 




The assets of the

Trust shall consist of the Trust Property.




 




SECTION 209. 

TITLE TO TRUST PROPERTY.




 




Legal title to all

Trust Property shall be vested at all times in the Property Trustee (in its

capacity as such) and shall be held and administered by the Property Trustee

for the benefit of the Securityholders in accordance with this Trust Agreement.




 




 




ARTICLE III.




PAYMENT ACCOUNT




 




SECTION 301. 

PAYMENT ACCOUNT.




 




(a)                                  On

or prior to the Closing Date, the Property Trustee shall establish the Payment

Account.  The Property Trustee and any

agent of the Property Trustee shall have exclusive control and sole right of

withdrawal with respect to the Payment Account for the purpose of making

deposits and withdrawals from the Payment Account in accordance with this Trust

Agreement.  All monies and other

property deposited or held from time to time in the Payment Account shall be

held by the Property Trustee in the Payment Account for the exclusive benefit

of the Securityholders and for distribution as herein provided, including (and

subject to) any priority of payments provided for herein.




 




15





























 




(b)                                 The

Property Trustee shall deposit in the Payment Account, promptly upon receipt,

all payments of principal of or interest on, and any other payments or proceeds

with respect to, the Junior Subordinated Debentures. Amounts held in the

Payment Account shall not be invested by the Property Trustee pending

distribution thereof.




 




ARTICLE IV.




DISTRIBUTIONS; REDEMPTION




 




SECTION 401. 

DISTRIBUTIONS.




 




(a)                                  Distributions

on the Trust Securities shall be cumulative, and will accumulate whether or not

there are funds of the Trust available for the payment of Distributions.  Distributions shall accumulate from March 4,

2003, and, except during any Extension Period with respect to the Junior

Subordinated Debentures, shall be payable quarterly in arrears on the 15th day

of February, May, August, and November in each year, commencing May 15,

2003.  The amount of each distribution

due with respect to the Capital Securities will include amounts accrued through

the date the distribution payment is due. 

If any date on which a Distribution is otherwise payable on the Trust

Securities is not a Business Day, then the payment of such Distribution shall

be made on the next succeeding day that is a Business Day (and without any

interest or other payment in respect of any such delay) except that, if such

Business Day is in the next succeeding calendar year, payment of such

Distribution shall be made on the immediately preceding Business Day, in each

case with the same force and effect as if made on such date (each date on which

distributions are payable in accordance with this Section 401(a) a

“Distribution Date”).




 




(b)                                 The

Trust Securities represent undivided beneficial interests in the Trust

Property, and, as a practical matter, the Distributions on the Trust Securities

shall be payable at a rate of 

 7.60% per annum of the Liquidation Amount of the Trust

Securities.  The amount of Distributions

payable for any full period shall be computed on the basis of a 360-day year of

twelve 30-day months.  The amount of

Distributions for any partial period shall be computed on the basis of the

number of days elapsed in a 360-day year of twelve 30-day months.  During any Extension Period with respect to

the Junior Subordinated Debentures, Distributions on the Capital Securities

will be deferred for a period equal to the Extension Period.  The amount of Distributions payable for any

period shall include the Additional Amounts, if any.




 




(c)                                  Distributions

on the Trust Securities shall be made by the Property Trustee solely from the

Payment Account and shall be payable on each Distribution Date only to the

extent that the Trust has funds then on hand and immediately available in the

Payment Account for the payment of such Distributions.




 




(d)                                 Distributions

on the Trust Securities with respect to a Distribution Date shall be payable to

the Holders thereof as they appear on the Securities Register for the Trust

Securities on the relevant record date, which shall be one Business Day prior

to such Distribution Date; provided, however, that in the event that the

Capital Securities do not remain in book-entry-only form, the relevant record

date shall be the 1st day of the month in which the relevant Distribution Date

occurs.




 




16





























 




SECTION 402. 

REDEMPTION.




 




(a)                                  On

each Debenture Redemption Date and on the stated maturity of the Junior

Subordinated Debentures, the Trust will be required to redeem a Like Amount of

Trust Securities at the Redemption Price.




 




(b)                                 Notice

of redemption shall be given by the Property Trustee by first-class mail,

postage prepaid, mailed not less than 30 nor more than 60 days prior to the

Redemption Date to each Holder of Trust Securities to be redeemed, at such

Holder’s address appearing in the Securities Register.  The Property Trustee shall have no

responsibility for the accuracy of any CUSIP number contained in such

notice.  All notices of redemption shall

state:




 




(i)                                     the

Redemption Date;




 




(ii)                                  the

Redemption Price;




 




(iii)                               the

CUSIP number;




 




(iv)                              if

less than all the Outstanding Trust Securities are to be redeemed, the identification

and the aggregate Liquidation Amount of the particular Trust Securities to be

redeemed; and




 




(v)                                 that

on the Redemption Date the Redemption Price will become due and payable upon

each such Trust Security to be redeemed and that distributions thereon will

cease to accumulate on and after said date.




 




(c)                                  The

Trust Securities redeemed on each Redemption Date shall be redeemed at the

Redemption Price with the proceeds from the contemporaneous redemption of

Junior Subordinated Debentures. 

Redemptions of the Trust Securities shall be made and the Redemption

Price shall be payable on each Redemption Date only to the extent that the

Trust has immediately available funds then on hand and available in the Payment

Account for the payment of such Redemption Price.




 




(d)                                 If

the Property Trustee gives a notice of redemption in respect of any Capital

Securities, then, by 12:00 noon, Minneapolis time, on the Redemption Date,

subject to Section 402(c), the Property Trustee will, so long as the Capital

Securities are in book-entry-only form, deposit with the Clearing Agency for

the Capital Securities funds sufficient to pay the applicable Redemption Price

and will give such Clearing Agency irrevocable instructions and authority to

pay the Redemption Price to the holders thereof.  If the Capital Securities are no longer in book-entry-only form,

the Property Trustee, subject to Section 402(c), will deposit with the Paying

Agent funds sufficient to pay the applicable Redemption Price and will give the

Paying Agent irrevocable instructions and authority to pay the Redemption Price

to the Holders thereof upon surrender of their Capital Securities

Certificates.  Notwithstanding the

foregoing, Distributions payable on or prior to the Redemption Date for any

Trust Securities called for redemption shall be payable to the Holders of such

Trust Securities as they appear on the Securities Register for the Trust

Securities on the relevant record dates for the related Distribution

Dates.  If notice of




 




17





























 




redemption shall have been given and funds deposited as required, then

upon the date of such deposit, all rights of Securityholders holding Trust

Securities so called for redemption will cease, except the right of such

Securityholders to receive the Redemption Price, but without interest on such

Redemption Price, and such Securities will cease to be Outstanding.  In the event that any date on which any

Redemption Price is payable is not a Business Day, then payment of the

Redemption Price payable on such date will be made on the next succeeding day

that is a Business Day (and without any interest or other payment in respect of

any such delay), except that, if such Business Day falls in the next calendar

year, such payment will be made on the immediately preceding Business Day, in

each case, with the same force and effect as if made on such date.  In the event that payment of the Redemption

Price in respect of any Trust Securities called for redemption is improperly

withheld or refused and not paid either by the Trust or by the Depositor

pursuant to the Guarantee, Distributions on such Trust Securities will continue

to accumulate, at the then applicable rate, from the Redemption Date originally

established by the Trust for such Trust Securities to the date such Redemption

Price is actually paid, in which case the actual payment date will be the date

fixed for redemption for purposes of calculating the Redemption Price.




 




(e)                                  Payment

of the Redemption Price on the Trust Securities shall be made to the record

holders thereof as they appear on the Securities Register for the Trust

Securities on the relevant record date, which shall be one Business Day prior

to the relevant Redemption Date; provided, however, that in the event that the

Capital Securities do not remain in book-entry-only form, the relevant record

date shall be the date fifteen days prior to the relevant Redemption Date.




 




(f)                                    Subject

to Section 403(a), if less than all the Outstanding Trust Securities are to be

redeemed on a Redemption Date, then the aggregate Liquidation Amount of Trust

Securities to be redeemed shall be allocated on a pro rata basis (based on

Liquidation Amounts) among the Common Securities and the Capital

Securities.  The particular Capital

Securities to be redeemed shall be selected not more than 60 days prior to the

Redemption Date by the Property Trustee from the outstanding Capital Securities

not previously called for redemption, by such method (including, without

limitation, by lot) as the Property Trustee shall deem fair and appropriate and

which may provide for the selection for redemption of portions (equal to $25 or

an integral multiple of $25 in excess thereof) of the Liquidation Amount of

Capital Securities of a denomination larger than $25.  The Property Trustee shall promptly notify the Securities

Registrar in writing of the Capital Securities selected for redemption and, in

the case of any Capital Securities selected for partial redemption, the

Liquidation Amount thereof to be redeemed. 

For all purposes of this Trust Agreement, unless the context otherwise

requires, all provisions relating to the redemption of Capital Securities shall

relate, in the case of any Capital Securities redeemed or to be redeemed only

in part, to the portion of the Liquidation Amount of Capital Securities which

has been or is to be redeemed.




 




SECTION 403. 

SUBORDINATION OF COMMON SECURITIES.




 




(a)                                  Payment

of Distributions (including Additional Amounts, if applicable) on, and the

Redemption Price of, the Trust Securities, as applicable, shall be made,

subject to Section 402(f), pro rata among the Common Securities and the Capital

Securities based on the Liquidation Amount of the Trust Securities; provided,

however, that if on any Distribution Date




 




18





























 




or Redemption Date any Event of Default resulting from a Debenture

Event of Default shall have occurred and be continuing, no payment of any

Distribution (including Additional Amounts, if applicable) on, or Redemption

Price of, any Common Security, and no other payment on account of the

redemption, liquidation or other acquisition of Common Securities, shall be

made unless payment in full in cash of all accumulated and unpaid Distributions

(including Additional Amounts, if applicable) on all Outstanding Capital

Securities for all Distribution periods terminating on or prior thereto, or in

the case of payment of the Redemption Price the full amount of such Redemption

Price on all Outstanding Capital Securities then called for redemption, shall

have been made or provided for, and all funds immediately available to the

Property Trustee shall first be applied to the payment in full in cash of all

Distributions (including Additional Amounts, if applicable) on, or the

Redemption Price of, Capital Securities then due and payable.




 




(b)                                 In

the case of the occurrence of any Event of Default resulting from a Debenture

Event of Default, the Holder of Common Securities will be deemed to have waived

any right to act with respect to any such Event of Default under this Trust

Agreement until the effect of all such Events of Default with respect to the

Capital Securities shall have been cured, waived or otherwise eliminated.  Until any such Event of Default under this

Trust Agreement with respect to the Capital Securities shall have been so

cured, waived or otherwise eliminated, the Property Trustee shall act solely on

behalf of the Holders of the Capital Securities and not the Holder of the

Common Securities, and only the Holders of the Capital Securities will have the

right to direct the Property Trustee to act on their behalf.




 




SECTION 404. 

PAYMENT PROCEDURES.




 




Payments of

Distributions (including Additional Amounts, if applicable) in respect of the

Capital Securities shall be made by check mailed to the address of the Person

entitled thereto as such address shall appear on the Securities Register or, if

the Capital Securities are held by a Clearing Agency, such Distributions shall

be made to the Clearing Agency in immediately available funds, which shall credit

the relevant Persons’ accounts at such Clearing Agency on the applicable

Distribution Dates.  Payments in respect

of the Common Securities shall be made in such manner as shall be mutually

agreed between the Property Trustee and the Common Securityholder.




 




SECTION 405. 

TAX RETURNS AND REPORTS.




 




The Administrative

Trustees shall prepare (or cause to be prepared), at the Depositor’s expense,

and file all United States federal, state and local tax and information returns

and reports required to be filed by or in respect of the Trust.  In this regard, the Administrative Trustees

shall (a) prepare and file (or cause to be prepared and filed) the appropriate

Internal Revenue Service Form required to be filed in respect of the Trust in

each taxable year of the Trust and (b) prepare and furnish (or cause to be

prepared and furnished) to each Securityholder the appropriate Internal Revenue

Service form required to be furnished to such Securityholder or the information

required to be provided on such form. 

The Administrative Trustees shall provide the Depositor with a copy of

all such returns and reports promptly after such filing or furnishing. The

Property Trustee shall comply with United States federal withholding and backup

withholding tax laws




 




19





























 




and information reporting requirements with respect to any payments to

Securityholders under the Trust Securities.




 




SECTION 406. 

PAYMENT OF TAXES, DUTIES, ETC. OF THE TRUST.




 




Upon receipt under

the Junior Subordinated Debentures of Additional Sums, the Property Trustee, at

the direction of an Administrative Trustee or the Depositor, shall promptly pay

any taxes, duties or governmental charges of whatsoever nature (other than

withholding taxes) imposed on the Trust by the United States or any other

taxing authority.




 




SECTION 407. 

PAYMENTS UNDER INDENTURE.




 




Any amount payable

hereunder to any Holder of Capital Securities shall be reduced by the amount of

any corresponding payment such Holder (or any Owner related thereto) has

directly received under the Indenture pursuant to Section 514(b) or (c) hereof.




 




ARTICLE V.




TRUST SECURITIES CERTIFICATES




 




SECTION 501. 

INITIAL OWNERSHIP.




 




Upon the creation

of the Trust and the contribution by the Depositor pursuant to Section 203 and

until the issuance of the Trust Securities, and at any time during which no

Trust Securities are outstanding, the Depositor shall be the sole beneficial

owner of the Trust.




 




SECTION 502. 

THE TRUST SECURITIES CERTIFICATES.




 




The Capital

Securities Certificates shall be issued in minimum denominations of $25

Liquidation Amount and integral multiples of $25 in excess thereof, and the

Common Securities Certificates shall be issued in denominations of $25

Liquidation Amount and integral multiples of $25 in excess thereof.  The Trust Securities Certificates shall be

executed on behalf of the Trust by manual signature of at least one

Administrative Trustee.  Trust

Securities Certificates bearing the manual signatures of individuals who were,

at the time when such signatures shall have been affixed, authorized to sign on

behalf of the Trust, shall be validly issued and entitled to the benefits of

this Trust Agreement, notwithstanding that such individuals or any of them

shall have ceased to be so authorized prior to the delivery of such Trust

Securities Certificates or did not hold such offices at the date of delivery of

such Trust Securities Certificates.  A

transferee of a Trust Securities Certificate shall become a Securityholder, and

shall be entitled to the rights and subject to the obligations of a

Securityholder hereunder, upon due registration of such Trust Securities

Certificate in such transferee’s name pursuant to Sections 504, 511 and 513.




 




SECTION 503.  EXECUTION AND DELIVERY OF TRUST SECURITIES

CERTIFICATES.




 




On the Closing Date, the Administrative Trustees shall

cause Trust Securities Certificates, in an aggregate Liquidation Amount as

provided in Sections 204 and 205, to be




 




20





























 




executed on behalf of the Trust by at least one of the Administrative

Trustees and delivered to or upon the written order of the Depositor, signed by

its President, any Vice President or the Chief Financial Officer without

further corporate action by the Depositor, in authorized denominations.




 




SECTION 504. 

REGISTRATION OF TRANSFER AND EXCHANGE OF CAPITAL SECURITIES

CERTIFICATES.




 




The Depositor

shall keep or cause to be kept, at the office or agency maintained pursuant to

Section 508, a register or registers for the purpose of registering Trust

Securities Certificates and transfers and exchanges of Capital Securities

Certificates (herein referred to as the “Securities Register”) in which the

registrar designated by the Depositor (the “Securities Registrar”), subject to

such reasonable regulations as it may prescribe, shall provide for the

registration of Capital Securities Certificates and Common Securities

Certificates (subject to Section 510 in the case of the Common Securities

Certificates) and registration of transfers and exchanges of Capital Securities

Certificates as herein provided.  The

Property Trustee shall be the initial Securities Registrar.




 




Upon surrender for

registration of transfer of any Capital Securities Certificate at the office or

agency maintained pursuant to Section 508, the Administrative Trustees or any

one of them shall execute and deliver, in the name of the designated transferee

or transferees, one or more new Capital Securities Certificates in authorized

denominations of a like aggregate Liquidation Amount dated the date of

execution by such Administrative Trustee or Trustees.  The Securities Registrar shall not be required to register the

transfer of any Capital Securities that have been called for redemption.  At the option of a Holder, Capital Securities

Certificates may be exchanged for other Capital Securities Certificates in

authorized denominations of the same class and of a like aggregate Liquidation

Amount upon surrender of the Capital Securities Certificates to be exchanged at

the office or agency maintained pursuant to Section 508.




 




Every Capital

Securities Certificate presented or surrendered for registration of transfer or

exchange shall be accompanied by a written instrument of transfer in form

satisfactory to the Property Trustee and the Securities Registrar duly executed

by the Holder or such Holder’s attorney duly authorized in writing.  Each Capital Securities Certificate

surrendered for registration of transfer or exchange shall be cancelled and

subsequently disposed of by the Property Trustee in accordance with its

customary practice. The Trust shall not be required to (i) issue, register the

transfer of, or exchange any Capital Securities during a period beginning at

the opening of business 15 calendar days before the date of mailing of a notice

of redemption of any Capital Securities called for redemption and ending at the

close of business on the day of such mailing or (ii) register the transfer of

or exchange any Capital Securities so selected for redemption, in whole or in

part, except the unredeemed portion of any such Capital Securities being

redeemed in part.




 




No service charge

shall be made for any registration of transfer or exchange of Capital

Securities Certificates, but the Securities Registrar may require payment of a

sum sufficient to cover any tax or governmental charge that may be imposed in

connection with any transfer or exchange of Capital Securities Certificates.




 




21





























 




SECTION 505.  MUTILATED, DESTROYED, LOST OR STOLEN TRUST

SECURITIES CERTIFICATES.




 




If (a) any

mutilated Trust Securities Certificate shall be surrendered to the Securities

Registrar, or if the Securities Registrar shall receive evidence to its

satisfaction of the destruction, loss or theft of any Trust Securities

Certificate and (b) there shall be delivered to the Securities Registrar and

the Administrative Trustees such security or indemnity as may be required by

them to save each of them harmless, then in the absence of notice that such

Trust Securities Certificate shall have been acquired by a protected purchaser,

the Administrative Trustees, or any one of them, on behalf of the Trust shall

execute and make available for delivery, in exchange for or in lieu of any such

mutilated, destroyed, lost or stolen Trust Securities Certificate, a new Trust

Securities Certificate of like class, tenor and denomination.  In connection with the issuance of any new

Trust Securities Certificate under this Section, the Administrative Trustees or

the Securities Registrar may require the payment of a sum sufficient to cover

any tax or other governmental charge that may be imposed in connection

therewith.  Any duplicate Trust

Securities Certificate issued pursuant to this Section shall constitute

conclusive evidence of an undivided beneficial interest in the assets of the

Trust, as if originally issued, whether or not the lost, stolen or destroyed

Trust Securities Certificate shall be found at any time.




 




SECTION 506.  PERSONS DEEMED SECURITYHOLDERS.




 




The Trustees, the Paying Agent and the Securities

Registrar shall treat the Person in whose name any Trust Securities Certificate

shall be registered in the Securities Register as the owner of such Trust

Securities Certificate for the purpose of receiving Distributions and for all other

purposes whatsoever, and neither the Trustees nor the Securities Registrar

shall be bound by any notice to the contrary.




 




SECTION 507. 

ACCESS TO LIST OF SECURITYHOLDERS’ NAMES AND ADDRESSES.




 




At any time when

the Property Trustee is not also acting as the Securities Registrar, the

Administrative Trustees or the Depositor shall furnish or cause to be furnished

to the Property Trustee (a) semi-annually on or before January 1 and July 1 in

each year, a list, in such form as the Property Trustee may reasonably require,

of the names and addresses of the Securityholders as of the most recent Record

Date and (b) promptly after receipt by any Administrative Trustee or the

Depositor of a request therefor from the Property Trustee, such other

information as the Property Trustee may reasonably require in order to enable

the Property Trustee to discharge its obligations under this Trust Agreement,

in each case to the extent such information is in the possession or control of

the Administrative Trustees or the Depositor and is not identical to a

previously supplied list or has not otherwise been received by the Property

Trustee in its capacity as Securities Registrar.  The rights of Securityholders to communicate with other Securityholders

with respect to their rights under this Trust Agreement or under the Trust

Securities, and the corresponding rights of the Trustee shall be as provided in

the Trust Indenture Act.  Each Holder,

by receiving and holding a Trust Securities Certificate, and each Owner shall

be deemed to have agreed not to hold the Depositor, the Property Trustee or the

Administrative Trustees accountable by reason of the disclosure of its name and

address, regardless of the source from which such information was derived.




 




22





























 




SECTION 508. 

MAINTENANCE OF OFFICE OR AGENCY.




 




The Administrative

Trustees shall maintain an office or offices or agency or agencies where

Capital Securities Certificates may be surrendered for registration of transfer

or exchange and where notices and demands to or upon the Trustees in respect of

the Trust Securities Certificates may be served.  The Administrative Trustees initially designate the principal

corporate trust office of the Property Trustee, Rodney Square North, 1100 North

Market Street, Wilmington, Delaware 19890-0001, Attn: Corporate Trust

Administration, as the principal corporate trust office for such purposes.  The Administrative Trustees shall give

prompt written notice to the Depositor and to the Securityholders of any change

in the location of the Securities Register or any such office or agency.




 




SECTION 509. 

APPOINTMENT OF PAYING AGENT.




 




The Paying Agent

shall make distributions to Securityholders from the Payment Account and shall

report the amounts of such distributions to the Property Trustee and the

Administrative Trustees.  Any Paying

Agent shall have the revocable power to withdraw funds from the Payment Account

for the purpose of making the Distributions referred to above.  The Administrative Trustees may revoke such

power and remove the Paying Agent if such Trustees determine in their sole

discretion that the Paying Agent shall have failed to perform its obligations

under this Trust Agreement in any material respect.  The Paying Agent shall initially be the Property Trustee, and any

co-paying agent chosen by the Property Trustee, and acceptable to the

Administrative Trustees and the Depositor. 

Any Person acting as Paying Agent shall be permitted to resign as Paying

Agent upon 30 days’ written notice to the Administrative Trustees, the Property

Trustee and the Depositor.  In the event

that the Property Trustee shall no longer be the Paying Agent or a successor

Paying Agent shall resign or its authority to act be revoked, the

Administrative Trustees shall appoint a successor that is acceptable to the

Property Trustee and the Depositor to act as Paying Agent (which shall be a

bank or trust company).  The

Administrative Trustees shall cause such successor Paying Agent or any

additional Paying Agent appointed by the Administrative Trustees to execute and

deliver to the Trustees an instrument in which such successor Paying Agent or

additional Paying Agent shall agree with the Trustees that as Paying Agent,

such successor Paying Agent or additional Paying Agent will hold all sums, if

any, held by it for payment to the Securityholders in trust for the benefit of

the Securityholders entitled thereto until such sums shall be paid to such

Securityholders.  The Paying Agent shall

return all unclaimed funds to the Property Trustee and upon removal of a Paying

Agent such Paying Agent shall also return all funds in its possession to the

Property Trustee.  The provisions of

Sections 801, 803 and 806 shall apply to the Property Trustee also in its role

as Paying Agent, for so long as the Property Trustee shall act as Paying Agent

and, to the extent applicable, to any other paying agent appointed

hereunder.  Any reference in this

Agreement to the Paying Agent shall include any co-paying agent unless the

context requires otherwise.




 




SECTION 510. 

OWNERSHIP OF COMMON SECURITIES BY DEPOSITOR.




 




On the Closing Date, the Depositor shall acquire and

retain beneficial and record ownership of the Common Securities.  To the fullest extent permitted by law, any

attempted transfer of the Common Securities (other than a transfer in

connection with a merger or




 




23





























 




consolidation of the Depositor into another corporation pursuant to

Section 12.1 of the Indenture) shall be void. 

The Administrative Trustees shall cause each Common Securities

Certificate issued to the Depositor to contain a legend stating “THIS

CERTIFICATE IS NOT TRANSFERABLE EXCEPT TO THE DEPOSITOR OR AN AFFILIATE OF THE

DEPOSITOR IN COMPLIANCE WITH APPLICABLE LAW AND SECTION 510 OF THE TRUST

AGREEMENT AND ONLY IN CONNECTION WITH A SIMULTANEOUS DELEGATION AND ASSIGNMENT

OF THE EXPENSE AGREEMENT REFERRED TO THEREIN”.




 




SECTION 511. 

BOOK-ENTRY CAPITAL SECURITIES CERTIFICATES; COMMON SECURITIES

CERTIFICATE.




 




(a)                                  The

Capital Securities Certificates, upon original issuance, will be issued in the

form of a typewritten Capital Securities Certificate or Certificates

representing Book-Entry Capital Securities Certificates, to be delivered to or

held on behalf of The Depository Trust Company, the initial Clearing Agency,

by, or on behalf of, the Trust.  Such

Book-Entry Capital Securities Certificate or Certificates shall initially be

registered on the Securities Register in the name of Cede & Co., the nominee

of the initial Clearing Agency, and no beneficial owner will receive a

Definitive Capital Securities Certificate representing such beneficial owner’s

interest in such Capital Securities, except as provided in Section 513.  Unless and until Definitive Capital

Securities Certificates have been issued to beneficial owners pursuant to

Section 513:




 




(i)                                     the

provisions of this Section 511(a) shall be in full force and effect;




 




(ii)                                  the

Securities Registrar, the Paying Agent and the Trustees shall be entitled to

deal with the Clearing Agency for all purposes of this Trust Agreement relating

to the Book-Entry Capital Securities Certificates (including the payment of the

Liquidation Amount of and Distributions on the Book-Entry Capital Securities)

as the sole Holder of Book-Entry Capital Securities and shall have no

obligations to the Owners thereof;




 




(iii)                               to

the extent that the provisions of this Section 511 conflict with any other

provisions of this Trust Agreement, the provisions of this Section 511 shall

control; and




 




(iv)                              the

rights of the Owners of the Book-Entry Capital Securities Certificates shall be

exercised only through the Clearing Agency and shall be limited to those

established by law and agreements between such Owners and the Clearing Agency

and/or the Clearing Agency Participants. 

Pursuant to the Certificate Depository Agreement, unless and until

Definitive Capital Securities Certificates are issued pursuant to Section 513,

the initial Clearing Agency will make book-entry transfers among the Clearing

Agency Participants and will receive and transmit payments on the Capital

Securities to such Clearing Agency Participants.  Any Clearing Agency designated pursuant hereto will not be deemed

an agent of the Trustees for any purpose.




 




(b)                                 A

single Common Securities Certificate representing the Common Securities shall

be issued to the Depositor in the form of a definitive Common Securities

Certificate.




 




24





























 




SECTION 512. 

NOTICES TO CLEARING AGENCY.




 




To the extent that

a notice or other communication to the Owners is required under this Trust

Agreement, unless and until Definitive Capital Securities Certificates shall

have been issued to Owners pursuant to Section 513, the Trustees shall give all

such notices and communications specified herein to be given to Owners to the

Clearing Agency, and shall have no obligations to the Owners.




 




SECTION 513. 

DEFINITIVE CAPITAL SECURITIES CERTIFICATES.




 




If (a) the

Depositor advises the Trustees in writing that the Clearing Agency is no longer

willing or able to properly discharge its responsibilities with respect to the

Capital Securities Certificates, and the Depositor is unable to locate a

qualified successor, (b) the Depositor at its option advises the Trustees in

writing that it elects to terminate the book-entry system through the Clearing

Agency, or (c) after the occurrence of a Debenture Event of Default, Owners of

Capital Securities Certificates representing beneficial interests aggregating

at least a majority of the Liquidation Amount advise the Property Trustee in

writing that the continuation of a book-entry system through the Clearing

Agency is no longer in the best interests of the Owners of Capital Securities

Certificates, then the Property Trustee shall notify the Clearing Agency, and

the Clearing Agency shall notify all Owners of Capital Securities Certificates,

of the occurrence of any such event and of the availability of the Definitive

Capital Securities Certificates to Owners of such class or classes, as

applicable, requesting the same.  Upon

surrender to the Property Trustee of the typewritten Capital Securities

Certificate or Certificates representing the Book-Entry Capital Securities

Certificates by the Clearing Agency, accompanied by registration instructions,

the Administrative Trustees, or any one of them, shall execute the Definitive

Capital Securities Certificates in accordance with the instructions of the

Clearing Agency.  Neither the Securities

Registrar nor the Trustees shall be liable for any delay in delivery of such

instructions and may conclusively rely on, and shall be protected in relying

on, such instructions.  Upon the

issuance of Definitive Capital Securities Certificates, the Trustees shall

recognize the holders of the Definitive Capital Securities Certificates as

Securityholders.  The Definitive Capital

Securities Certificates shall be printed, lithographed or engraved or may be

produced in any other manner as is reasonably acceptable to the Administrative

Trustees, as evidenced by the execution thereof by the Administrative Trustees

or any one of them.




 




SECTION 514. 

RIGHTS OF SECURITYHOLDERS.




 




(a)                                  The

legal title to the Trust Property is vested exclusively in the Property Trustee

(in its capacity as such) in accordance with Section 209, and the

Securityholders shall not have any right or title therein other than the

undivided beneficial interest in the assets of the Trust conferred by their

Trust Securities and they shall have no right to call for any partition or

division of property, profits or rights of the Trust except as described below.

The Trust Securities shall be personal property giving only the rights

specifically set forth therein and in this Trust Agreement.  The Trust Securities shall have no

preemptive or similar rights.  When

issued and delivered to Holders of the Capital Securities against payment of

the purchase price therefor, the Capital Securities will be fully paid and

nonassessable, beneficial interests in the Trust.  The Holders of the Capital Securities, in their capacities as

such, shall be entitled to the same




 




25





























 




limitation of personal liability extended to stockholders of private

corporations for profit organized under the General Corporation Law of the

State of Delaware.




 




(b)                                 For

so long as any Capital Securities remain Outstanding, if, upon a Debenture

Event of Default, the Debenture Trustee fails or the holders of not less than

25% in principal amount of the outstanding Junior Subordinated Debentures fail

to declare the principal of all of the Junior Subordinated Debentures to be

immediately due and payable, the Holders of at least 25% in Liquidation Amount

of the Capital Securities then Outstanding shall have such right by a notice in

writing to the Depositor and the Debenture Trustee; and upon any such declaration

such principal amount of and the accrued interest on all of the Junior

Subordinated Debentures shall become immediately due and payable, provided that

the payment of principal and interest on such Junior Subordinated Debentures

shall remain subordinated to the extent provided in the Indenture.  If, as a result of a Debenture Event of

Default, the Debenture Trustee or the holders of not less than 25% in aggregate

outstanding principal amount of the Junior Subordinated Debentures have

declared the Junior Subordinated Debentures due and payable and if such default

has been cured and a sum sufficient to pay all matured installments due

(otherwise than by acceleration) under the Junior Subordinated Debentures has

been deposited with the Debenture Trustee, then (if the holders of not less

than a majority in aggregate outstanding principal amount of Junior

Subordinated Debentures have not annulled such declaration and waived such

default) the holders of a majority in aggregate Liquidation Amount of the Capital

Securities may annul such declaration and waive such default.




 




(c)                                  For

so long as any Capital Securities remain outstanding, upon a Debenture Event of

Default arising from the failure to pay interest or principal on the Junior

Subordinated Debentures, the Holders of any Capital Securities then Outstanding

shall, to the fullest extent permitted by law, have the right to directly

institute proceedings for enforcement of payment to such Holders of principal

of or interest on the Junior Subordinated Debentures having a principal amount

equal to the Liquidation Amount of the Capital Securities of such Holders.




 




ARTICLE VI.




ACTS OF SECURITYHOLDERS;

MEETINGS; VOTING




 




SECTION 601.  LIMITATIONS ON VOTING RIGHTS.




 




(a)                                  Except

as provided in this Section, in Sections 514, 810 and 1002 and in the Indenture

and as otherwise required by law, no Holder of Capital Securities shall have

any right to vote or in any manner otherwise control the administration,

operation and management of the Trust or the obligations of the parties hereto,

nor shall anything herein set forth, or contained in the terms of the Trust

Securities Certificates, be construed so as to constitute the Securityholders

from time to time as partners or members of an association.




 




(b)                                 So

long as any Junior Subordinated Debentures are held by the Property Trustee,

the Trustees shall not (i) direct the time, method and place of conducting any

proceeding for any remedy available to the Debenture Trustee, or executing any

trust or power conferred on the Debenture Trustee with respect to such Junior

Subordinated Debentures, (ii) waive any past default which is waivable under

Article VII of the Indenture, (iii) exercise any right to rescind or annul a

declaration that the principal of all the Junior Subordinated Debentures shall

be due and




 




26





























 




payable or (iv) consent to any amendment, modification or termination

of the Indenture or the Junior Subordinated Debentures, where such consent

shall be required, without, in each case, obtaining the prior approval of the

Holders of at least a majority in Liquidation Amount of all Outstanding Capital

Securities; provided, however, that where a consent under the Indenture would

require the consent of each holder of outstanding Junior Subordinated

Debentures affected thereby, no such consent shall be given by the Property

Trustee without the prior written consent of each Holder of Capital

Securities.  The Trustees shall not

revoke any action previously authorized or approved by a vote of the Holders of

the Outstanding Capital Securities, except by a subsequent vote of the Holders

of the Outstanding Capital Securities. 

The Property Trustee shall notify each Holder of the Outstanding Capital

Securities of any notice of default received from the Debenture Trustee with

respect to the Junior Subordinated Debentures. In addition to obtaining the

foregoing approvals of the Holders of the Capital Securities, prior to taking

any of the foregoing actions, the Trustees shall, at the expense of the

Depositor, obtain an Opinion of Counsel experienced in such matters to the

effect that the Trust will continue to be classified as a grantor trust and not

as an association taxable as a corporation for United States federal income tax

purposes on account of such action.




 




(c)                                  If

any proposed amendment to the Trust Agreement provides for, or the Trustees

otherwise propose to effect, (i) any action that would adversely affect in any

material respect the powers, preferences or special rights of the Capital

Securities, whether by way of amendment to the Trust Agreement or otherwise, or

(ii) the dissolution, winding-up or termination of the Trust, other than

pursuant to the terms of this Trust Agreement, then the Holders of Outstanding

Capital Securities as a class will be entitled to vote on such amendment or

proposal and such amendment or proposal shall not be effective except with the

approval of the Holders of at least a majority in Liquidation Amount of the

Outstanding Capital Securities.  No

amendment to this Trust Agreement may be made if, as a result of such

amendment, the Trust would cease to be classified as a grantor trust or would

be classified as an association taxable as a corporation for United States

federal income tax purposes.




 




SECTION 602. 

NOTICE OF MEETINGS.




 




Notice of all meetings of the Holders of Capital

Securities, stating the time, place and purpose of the meeting, shall be given

by the Property Trustee pursuant to Section 1008 to each Holder of Capital

Securities of record, at and Securityholder’s registered address, at least 15

days and not more than 90 days before the meeting.  At any such meeting, any business properly before the meeting may

be so considered whether or not stated in the notice of the meeting.  Any adjourned meeting may be held as

adjourned without further notice.




 




SECTION 603.  MEETINGS OF HOLDERS OF CAPITAL SECURITIES.




 




No annual meeting of Securityholders is required to be

held.  The Administrative Trustees,

however, shall call a meeting of Securityholders to vote on any matter upon the

written request of the Holders of 25% of the Outstanding Capital Securities

(based upon their aggregate Liquidation Amount) and the Administrative Trustees

or the Property Trustee may, at any time in their discretion, call a meeting of

Capital Securityholders to vote on any matters as to which the Capital

Securityholders are entitled to vote.




 




27





























 




Holders of record of 50%

of the Outstanding Capital Securities (based upon their aggregate Liquidation

Amount), present in person or by proxy, shall constitute a quorum at any

meeting of Securityholders.




 




If a quorum is

present at a meeting, an affirmative vote by the Holders of record present, in

person or by proxy, holding a majority of the Capital Securities (based upon

their aggregate Liquidation Amount) held by the Holders of Capital Securities

of record present, either in person or by proxy, at such meeting shall

constitute the action of the Securityholders, unless this Trust Agreement requires

a greater number of affirmative votes.




 




SECTION 604. 

VOTING RIGHTS.




 




Securityholders

shall be entitled to one vote for each $25 of Liquidation Amount represented by

their Trust Securities in respect of any matter as to which such

Securityholders are entitled to vote.




 




SECTION 605. 

PROXIES, ETC.




 




At any meeting of

Securityholders, any Securityholder entitled to vote thereat may vote by proxy,

provided that no proxy shall be voted at any meeting unless it shall have been

placed on file with the Administrative Trustees, or with such other officer or

agent of the Trust as the Administrative Trustees may direct, for verification

prior to the time at which such vote shall be taken. When Trust Securities are

held jointly by several Persons, any one of them may vote at any meeting in

person or by proxy in respect of such Trust Securities, but if more than one of

them shall be present at such meeting in person or by proxy, and such joint

owners or their proxies so present disagree as to any vote to be cast, such

vote shall not be received in respect of such Trust Securities. A proxy

purporting to be executed by or on behalf of a Securityholder shall be deemed

valid unless challenged at or prior to its exercise, and, the burden of proving

invalidity shall rest on the challenger. 

No proxy shall be valid more than three years after its date of

execution.




 




SECTION 606. 

SECURITYHOLDER ACTION BY WRITTEN CONSENT.




 




Any action which

may be taken by Securityholders at a meeting may be taken without a meeting and

without prior notice if Securityholders holding a majority of all Outstanding

Trust Securities (based upon their aggregate Liquidation Amount) entitled to

vote in respect of such action (or such larger proportion thereof as shall be

required by any express provision of this Trust Agreement) shall consent to the

action in writing (based upon their aggregate Liquidation Amount).




 




SECTION 607. 

RECORD DATE FOR VOTING AND OTHER PURPOSES.




 




For the purposes

of determining the Securityholders who are entitled to notice of and to vote at

any meeting or by written consent, or to participate in any Distribution on the

Trust Securities in respect of which a record date is not otherwise provided

for in this Trust Agreement, or for the purpose of any other action, the Administrative

Trustees may from time to time fix a date, not more than 90 days prior to the

date of any meeting of Securityholders or the




 




28





























 




payment of Distribution or other action, as the case may be, as a record

date for the determination of the identity of the Securityholders of record for

such purposes.




 




SECTION 608.  ACTS OF SECURITYHOLDERS.




 




Any request,

demand, authorization, direction, notice, consent, waiver or other action

provided or permitted by this Trust Agreement to be given, made or taken by

Securityholders or Owners may be embodied in and evidenced by one or more

instruments of substantially similar tenor signed by such Securityholders or

Owners in person or by an agent duly appointed in writing; and, except as

otherwise expressly provided herein, such action shall become effective when

such instrument or instruments are delivered to an Administrative Trustee.  Such instrument or instruments (and the

action embodied therein and evidenced thereby) are herein sometimes referred to

as the “Act” of the Securityholders or Owners signing such instrument or

instruments.  Proof of execution of any

such instrument or of a writing appointing any such agent shall be sufficient

for any purpose of this Trust Agreement and (subject to Section 801) conclusive

in favor of the Trustees, if made in the manner provided in this Section.




 




The fact and date

of the execution by any Person of any such instrument or writing may be proved

by the affidavit of a witness of such execution or by a certificate of a notary

public or other officer authorized by law to take acknowledgments of deeds,

certifying that the individual signing such instrument or writing acknowledged

to him or her the execution thereof. 

Where such execution is by a signer acting in a capacity other than such

signer’s individual capacity, such certificate or affidavit shall also

constitute sufficient proof of such signer’s authority.  The fact and date of the execution of any

such instrument or writing, or the authority of the Person executing the same,

may also be proved in any other manner which any Trustee receiving the same

deems sufficient.




 




The ownership of

Capital Securities shall be proved by the Securities Register.




 




Any request,

demand, authorization, direction, notice, consent, waiver or other Act of the

Securityholder of any Trust Security shall bind every future Securityholder of

the same Trust Security and the Securityholder of every Trust Security issued

upon the registration of transfer thereof or in exchange therefor or in lieu

thereof in respect of anything done, omitted or suffered to be done by the

Trustees or the Trust in reliance thereon, whether or not notation of such

action is made upon such Trust Security.




 




Without limiting

the foregoing, a Securityholder entitled hereunder to take any action hereunder

with regard to any particular Trust Security may do so with regard to all or

any part of the Liquidation Amount of such Trust Security or by one or more

duly appointed agents each of which may do so pursuant to such appointment with

regard to all or any part of such Liquidation Amount.




 




29





























 




SECTION 609. 

INSPECTION OF RECORDS.




 




Upon reasonable notice to the Administrative Trustees

and the Property Trustee, the records of the Trust shall be open to inspection

by Securityholders during normal business hours for any purpose reasonably

related to such Securityholder’s interest as a Securityholder.




 




ARTICLE VII.




REPRESENTATIONS AND WARRANTIES




 




SECTION 701. 

REPRESENTATIONS AND WARRANTIES OF THE BANK AND THE PROPERTY TRUSTEE.




 




The Bank and the

Property Trustee, each severally on behalf of and as to itself, as of the date

hereof, and each Successor Property Trustee at the time of the Successor Property

Trustee’s acceptance of its appointment as Property Trustee hereunder (the term

“Bank” being used to refer to such Successor Property Trustee in its separate

corporate capacity), hereby represents and warrants (as applicable) for the

benefit of the Depositor and the Securityholders that:




 




(a)                                  the

Bank is a Delaware banking corporation duly organized, validly existing and in

good standing under the laws of the State of Delaware;




 




(b)                                 each

of the Property Trustee and the Bank has full corporate power, authority and

legal right to execute, deliver and perform its obligations under this Trust

Agreement and has taken all necessary action to authorize the execution,

delivery and performance by it of this Trust Agreement;




 




(c)                                  this

Trust Agreement has been duly authorized, executed and delivered by each of the

Property Trustee and the Bank and constitutes the valid and legally binding

agreement of each of the Property Trustee and the Bank enforceable against it

in accordance with its terms, subject to bankruptcy, insolvency, fraudulent

transfer, reorganization, moratorium and similar laws of general applicability

relating to or affecting creditors’ rights and to general equity principles;




 




(d)                                 the

execution, delivery and performance by each of the Property Trustee and the

Bank of this Trust Agreement have been duly authorized by all necessary

corporate or other action on the part of the Property Trustee and the Bank and

does not require any approval of the stockholders of the Property Trustee or

the Bank and such execution, delivery and performance will not (i) violate the

Property Trustee’s or the Bank’s charter or by-laws, (ii) violate any provision

of, or constitute, with or without notice or lapse of time, a default under, or

result in the creation or imposition of, any Lien on any properties included in

the Trust Property pursuant to the provisions of, any indenture, mortgage,

credit agreement, license or other agreement or instrument to which the

Property Trustee or the Bank is a party or by which it is bound, or (iii)

violate any law, governmental rule or regulation of the United States or the

State of Delaware, as the case may be, governing the banking or trust powers of

the Bank or the Property Trustee, as the case may be, or any order, judgment or

decree applicable to the Property Trustee or the Bank;




 




30





























 




(e)                                  neither

the authorization, execution or delivery by the Property Trustee or the Bank of

this Trust Agreement nor the consummation of any of the transactions by the

Property Trustee or the Bank contemplated herein or therein requires the

consent or approval of, the giving of notice to, the registration with or the

taking of any other action with respect to, any governmental authority or

agency under any existing law of the State of Delaware governing the banking or

trust powers of the Bank or the Property Trustee, as the case may be; and




 




(f)                                    there

are no proceedings pending or, to the best of the Bank’s or the Property

Trustee’s knowledge, threatened against or affecting the Bank or the Property

Trustee, as the case may be, in any court or before any governmental authority,

agency or arbitration board or tribunal which, individually or in the

aggregate, would materially and adversely affect the Trust or would question

the right, power and authority of the Bank or the Property Trustee, as the case

may be, to enter into or perform its obligations as one of the Trustees under

this Trust Agreement.




 




SECTION 702. 

REPRESENTATIONS AND WARRANTIES OF THE DELAWARE BANK AND THE DELAWARE

TRUSTEE.




 




The Delaware Bank and the Delaware Trustee, each

severally on behalf of and as to itself, as of the date hereof, and each

Successor Delaware Trustee at the time of the Successor Delaware Trustee’s

acceptance of its appointment as Delaware Trustee hereunder (the term “Delaware

Bank” being used to refer to such Successor Delaware Trustee in its separate

corporate capacity), hereby represents and warrants (as applicable) for the

benefit of the Depositor and the Securityholders that:




 




(a)                                  the

Delaware Bank is a Delaware banking corporation duly organized, validly

existing and in good standing under the laws of the State of Delaware;




 




(b)                                 each

of the Delaware Trustee and the Delaware Bank has full corporate power,

authority and legal right to execute, deliver and perform its obligations under

this Trust Agreement and has taken all necessary action to authorize the

execution, delivery and performance by it of this Trust Agreement;




 




(c)                                  this

Trust Agreement has been duly authorized, executed and delivered by each of the

Delaware Trustee and the Delaware Bank and constitutes the valid and legally

binding agreement of each of the Delaware Trustee and the Delaware Bank

enforceable against it in accordance with its terms, subject to bankruptcy,

insolvency, fraudulent transfer, reorganization, moratorium and similar laws of

general applicability relating to or affecting creditors’ rights and to general

equity principles;




 




(d)                                 the

execution, delivery and performance by each of the Delaware Trustee and the

Delaware Bank of this Trust Agreement have been duly authorized by all

necessary corporate or other action on the part of the Delaware Trustee and the

Delaware Bank and does not require any approval of the stockholders of the

Delaware Trustee or the Delaware Bank and such execution, delivery and

performance will not (i) violate the Delaware Trustee’s or the Delaware Bank’s

charter or by-laws, (ii) violate any provision of, or constitute, with or

without notice or lapse of time, a default under, or result in the creation or

imposition of, any Lien on any properties




 




31





























 




included in the Trust Property pursuant to the provisions of, any

indenture, mortgage, credit agreement, license or other agreement or instrument

to which the Delaware Bank or the Delaware Trustee is a party or by which it is

bound, or (iii) violate any law, governmental rule or regulation of the United

States or the State of Delaware, as the case may be, governing the banking or

trust powers of the Delaware Bank or the Delaware Trustee, as the case may be,

or any order, judgment or decree applicable to the Delaware Bank or the

Delaware Trustee;




 




(e)                                  neither

the authorization, execution or delivery by the Delaware Trustee or the Delaware

Bank of this Trust Agreement nor the consummation of any of the transactions by

the Delaware Trustee or the Delaware Bank contemplated herein or therein

requires the consent or approval of, the giving of notice to, the registration

with or the taking of any other action with respect to, any governmental

authority or agency under any existing law of the State of Delaware governing

the banking or trust powers of the Delaware Bank or the Delaware Trustee, as

the case may be; and




 




(f)                                    there

are no proceedings pending or, to the best of the Delaware Bank’s or the

Delaware Trustee’s knowledge, threatened against or affecting the Delaware Bank

or the Delaware Trustee, as the case may be, in any court or before any

governmental authority, agency or arbitration board or tribunal which,

individually or in the aggregate, would materially and adversely affect the

Trust or would question the right, power and authority of the Delaware Bank or

the Delaware Trustee, as the case may be, to enter into or perform its obligations

as one of the Trustees under this Trust Agreement.




 




SECTION 703. 

REPRESENTATIONS AND WARRANTIES OF DEPOSITOR.




 




The Depositor

hereby represents and warrants for the benefit of the Securityholders that:




 




(a)                                  the

Trust Securities Certificates issued on the Closing Date on behalf of the Trust

have been duly authorized and will have been duly and validly executed, issued

and delivered by the Administrative Trustees pursuant to the terms and

provisions of, and in accordance with the requirements of, this Trust Agreement

and the Securityholders will be, as of such date, entitled to the benefits of

this Trust Agreement; and




 




(b)                                 there

are no taxes, fees or other governmental charges payable by the Trust (or the

Trustees on behalf of the Trust) under the laws of the State of Delaware or any

political subdivision thereof in connection with the execution, delivery and

performance by the Bank, the Property Trustee, the Delaware Bank or the

Delaware Trustee, as the case may be, of this Trust Agreement.




 




ARTICLE VIII.




THE TRUSTEES




 




SECTION 801.  CERTAIN DUTIES AND RESPONSIBILITIES.




 




(a)                                  The

duties and responsibilities of the Trustees shall be as provided by this Trust

Agreement and, in the case of the Property Trustee, by the Trust Indenture

Act.  Notwithstanding




 




32





























 




the foregoing, no provision of this Trust Agreement shall require the

Trustees to expend or risk their own funds or otherwise incur any financial

liability in the performance of any of their duties hereunder, or in the

exercise of any of their rights or powers, if they shall have reasonable

grounds for believing that repayment of such funds or adequate indemnity

against such risk or liability is not reasonably assured to it.  No Administrative Trustee nor the Delaware

Trustee shall be liable for such Trustee’s acts or omissions hereunder except

as a result of such Trustee’s own gross negligence or willful misconduct.  The Property Trustee’s liability shall be

determined under the Trust Indenture Act. 

Whether or not therein expressly so provided, every provision of this

Trust Agreement relating to the conduct or affecting the liability of or

affording protection to the Trustees shall be subject to the provisions of this

Section.  To the extent that, at law or

in equity, a Trustee has duties (including fiduciary duties) and liabilities

relating thereto to the Trust or to the Securityholders, such Trustee shall not

be liable to the Trust or to any Securityholder for such Trustee’s good faith

reliance on the provisions of this Trust Agreement.  To the fullest extent permitted by law, the provisions of this

Trust Agreement, to the extent that they restrict the duties and liabilities of

the Trustees otherwise existing at law or in equity, are agreed by the

Depositor and the Securityholders to replace such other duties and liabilities

of the Trustees.




 




(b)                                 All

payments made by the Property Trustee or a Paying Agent in respect of the Trust

Securities shall be made only from the revenue and proceeds from the Trust

Property and only to the extent that there shall be sufficient revenue or

proceeds from the Trust Property to enable the Property Trustee or a Paying

Agent to make payments in accordance with the terms hereof.  Each Securityholder, by such

Securityholder’s acceptance of a Trust Security, agrees that such

Securityholder will look solely to the revenue and proceeds from the Trust

Property to the extent legally available for distribution to such

Securityholder as herein provided and that the Trustees are not personally

liable to such Securityholder for any amount distributable in respect of any

Trust Security or for any other liability in respect of any Trust Security.

This Section 801(b) does not limit the liability of the Trustees expressly set

forth elsewhere in this Trust Agreement or, in the case of the Property

Trustee, in the Trust Indenture Act.




 




(c)                                  No

provision of this Trust Agreement shall be construed to relieve the Property

Trustee from liability for its own negligent action, its own negligent failure

to act, or its own willful misconduct, except that:




 




(i)                                     the

Property Trustee shall not be liable for any error of judgment made in good

faith by an authorized officer of the Property Trustee, unless it shall be

proved that the Property Trustee was negligent in ascertaining the pertinent

facts;




 




(ii)                                  the

Property Trustee shall not be liable with respect to any action taken or

omitted to be taken by it in good faith in accordance with the direction of the

Holders of not less than a majority in Liquidation Amount of the Trust

Securities relating to the time, method and place of conducting any proceeding

for any remedy available to the Property Trustee, or exercising any trust or

power conferred upon the Property Trustee under this Trust Agreement;




 




(iii)                               the

Property Trustee’s sole duty with respect to the custody, safe keeping and

physical preservation of the Subordinated Debentures and the Payment Account

shall be to deal with such Property in a similar manner as the Property Trustee

deals with




 




33





























 




similar property

for its own account, subject to the protections and limitations on liability

afforded to the Property Trustee under this Trust Agreement and the Trust

Indenture Act;




 




(iv)                              the

Property Trustee shall not be liable for any interest on any money received by

it except as it may otherwise agree with the Depositor and money held by the

Property Trustee need not be segregated from other funds held by it except in

relation to the Payment Account maintained by the Property Trustee pursuant to

Section 301 and except to the extent otherwise required by law; and




 




(v)                                 the

Property Trustee shall not be responsible for monitoring the compliance by the

Administrative Trustees or the Depositor with their respective duties under

this Trust Agreement, nor shall the Property Trustee be liable for the

negligence, default or misconduct of the Administrative Trustees or the

Depositor.




 




SECTION 802. 

CERTAIN NOTICES.




 




(a)                                  Within

5 Business Days after the occurrence of any Event of Default actually known to

the Property Trustee, the Property Trustee shall transmit, in the manner and to

the extent provided in Section 1008, notice of such Event of Default to the

Securityholders, the Administrative Trustees and the Depositor, unless such

Event of Default shall have been cured or waived.  For purposes of this Section the term “Event of Default” means

any event that is, or after notice or lapse of time or both would become, an

Event of Default.




 




(b)                                 The

Administrative Trustees shall transmit, to the Securityholders in the manner

and to the extent provided in Section 1008, notice of the Depositor’s election

to begin or further extend an Extension Period on the Junior Subordinated

Debentures (unless such election shall have been revoked) within the time

specified for transmitting such notice to the holders of the Junior

Subordinated Debentures pursuant to the Indenture as originally executed.




 




SECTION 803.  CERTAIN RIGHTS OF PROPERTY TRUSTEE.




 




Subject to the

provisions of Section 801:




 




(a)                                  the

Property Trustee may rely and shall be protected in acting or refraining from

acting in good faith upon any resolution, Opinion of Counsel, certificate,

written representation of a Holder or transferee, certificate of auditors or

any other certificate, statement, instrument, opinion, report, notice, request,

consent, order, appraisal, bond, debenture, note, other evidence of

indebtedness or other paper or document believed by it to be genuine and to

have been signed or presented by the proper party or parties;




 




(b)                                 if

(i) in performing its duties under this Trust Agreement the Property Trustee is

required to decide between alternative courses of action or (ii) in construing

any of the provisions of this Trust Agreement the Property Trustee finds the

same ambiguous or inconsistent with other provisions contained herein or (iii)

the Property Trustee is unsure of the application of any provision of this

Trust Agreement, then, except as to any matter as to which the Capital

Securityholders are entitled to vote under the terms of this Trust Agreement,

the Property Trustee shall deliver a notice to the Depositor requesting written

instructions of the




 




34





























 




Depositor as to the course of action to be taken and the Property

Trustee shall take such action, or refrain from taking such action, as the

Property Trustee shall be instructed in writing to take, or to refrain from

taking, by the Depositor; provided, however, that if the Property Trustee does

not receive such instructions of the Depositor within ten Business Days after

it has delivered such notice, or such reasonably shorter period of time set

forth in such notice (which to the extent practicable shall not be less than

two Business Days), it may, but shall be under no duty to, take or refrain from

taking such action not inconsistent with this Trust Agreement as it shall deem

advisable and in the best interests of the Securityholders, in which event the

Property Trustee shall have no liability except for its own bad faith,

negligence or willful misconduct;




 




(c)                                  any

direction or act of the Depositor or the Administrative Trustees contemplated

by this Trust Agreement shall be sufficiently evidenced by an Officers’

Certificate;




 




(d)                                 whenever

in the administration of this Trust Agreement, the Property Trustee shall deem

it desirable that a matter be established before undertaking, suffering or

omitting any action hereunder, the Property Trustee (unless other evidence is

herein specifically prescribed) may, in the absence of bad faith on its part,

request and conclusively rely upon an Officer’s Certificate which, upon receipt

of such request, shall be promptly delivered by the Depositor or the

Administrative Trustees;




 




(e)                                  the

Property Trustee shall have no duty to see to any recording, filing or

registration of any instrument (including any financing or continuation

statement or any filing under tax or securities laws) or any rerecording,

refiling or reregistration thereof;




 




(f)                                    the

Property Trustee may consult with counsel of its choice and the advice of such

counsel shall be full and complete authorization and protection in respect of

any action taken, suffered or omitted by it hereunder in good faith and in

reliance thereon and in accordance with such advice (such counsel may be

counsel to the Depositor or any of its Affiliates, and may include any of its

employees); the Property Trustee shall have the right at any time to seek

instructions concerning the administration of this Trust Agreement from any

court of competent jurisdiction;




 




(g)                                 the

Property Trustee shall be under no obligation to exercise any of the rights or

powers vested in it by this Trust Agreement at the request or direction of any

of the Securityholders pursuant to this Trust Agreement, unless such Securityholders

shall have offered to the Property Trustee reasonable security or indemnity

against the costs, expenses and liabilities which might be incurred by it in

compliance with such request or direction;




 




(h)                                 the

Property Trustee shall not be bound to make any investigation into the facts or

matters stated in any resolution, certificate, statement, instrument, opinion,

report, notice, request, consent, order, approval, bond, debenture, note or

other evidence of indebtedness or other paper or document, unless requested in

writing to do so by one or more Securityholders, but the Property Trustee may

make such further inquiry or investigation into such facts or matters as it may

see fit;




 




(i)                                     the

Property Trustee may execute any of the trusts or powers hereunder or perform

any duties hereunder either directly or by or through its agents or attorneys,

provided




 




35





























 




that the Property Trustee shall be responsible for its own negligence

or recklessness with respect to selection of any agent or attorney appointed by

it hereunder;




 




(j)                                     whenever

in the administration of this Trust Agreement the Property Trustee shall deem

it desirable to receive instructions with respect to enforcing any remedy or

right or taking any other action hereunder, the Property Trustee (i) may

request instructions from the Holders of the Trust Securities which

instructions may only be given by the Holders of the same proportion in

Liquidation Amount of the Trust Securities as would be entitled to direct the

Property Trustee under the terms of the Trust Securities in respect of such

remedy, right or action, (ii) may refrain from enforcing such remedy or right

or taking such other action until such instructions are received, and (iii)

shall be protected in acting in accordance with such instructions; and




 




(k)                                  except

as otherwise expressly provided by this Trust Agreement, the Property Trustee

shall not be under any obligation to take any action that is discretionary

under the provisions of this Trust Agreement. 

No provision of this Trust Agreement shall be deemed to impose any duty

or obligation on the Property Trustee to perform any act or acts or exercise

any right, power, duty or obligation conferred or imposed on it, in any

jurisdiction in which it shall be illegal, or in which the Property Trustee

shall be unqualified or incompetent in accordance with applicable law, to

perform any such act or acts, or to exercise any such right, power, duty or

obligation.  No permissive power or

authority available to the Property Trustee shall be construed to be a duty.




 




SECTION 804. 

NOT RESPONSIBLE FOR RECITALS OR ISSUANCE OF SECURITIES.




 




The recitals

contained herein and in the Trust Securities Certificates shall be taken as the

statements of the Trust, and the Trustees do not assume any responsibility for

their correctness.  The Trustees shall

not be accountable for the use or application by the Depositor of the proceeds

of the Junior Subordinated Debentures.




 




SECTION 805. 

MAY HOLD SECURITIES.




 




Any Trustee or any

other agent of any Trustee or the Trust, in its individual or any other

capacity, may become the owner or pledgee of Trust Securities and, subject to

Sections 808 and 813 and except as provided in the definition of the term

“Outstanding” in Article I, may otherwise deal with the Trust with the same

rights it would have if it were not a Trustee or such other agent.




 




SECTION 806.  COMPENSATION; INDEMNITY; FEES.




 




The Depositor

agrees:




 




(a)                                  to

pay to the Trustees from time to time reasonable compensation for all services

rendered by them hereunder (which compensation shall not be limited by any

provision of law in regard to the compensation of a trustee of an express

trust);




 




36





























 




(b)                                 except

as otherwise expressly provided herein, to reimburse the Trustees upon request

for all reasonable expenses, disbursements and advances incurred or made by the

Trustees in accordance with any provision of this Trust Agreement (including

the reasonable compensation and the expenses and disbursements of its agents

and counsel), except any such expense, disbursement or advance as may be

attributable to such Trustee’s negligence, bad faith or willful misconduct (or,

in the case of the Administrative Trustees or the Delaware Trustee, any such

expense, disbursement or advance as may be attributable to its, his or her

gross negligence, bad faith or willful misconduct); and




 




(c)                                  to

indemnify each of the Trustees or any predecessor Trustee for, and to hold the

Trustees harmless against, any loss, damage, claim, liability, penalty or

expense incurred without negligence or bad faith on its part, arising out of or

in connection with the acceptance or administration of this Trust Agreement,

including the costs and expenses of defending itself against any claim or

liability in connection with the exercise or performance of any of its powers

or duties hereunder, except any such cost or expense as may be attributable to

such Trustee’s negligence, bad faith or willful misconduct (or, in the case of

the Administrative Trustees or the Delaware Trustee, any such cost or expense

as may be attributable to its, his or her gross negligence, bad faith or

willful misconduct).




 




No Trustee may

claim any Lien on any Trust Property as a result of any amount due pursuant to

this Section 806.




 




SECTION 807. 

CORPORATE PROPERTY TRUSTEE REQUIRED; ELIGIBILITY OF TRUSTEES.




 




(a)                                  There

shall at all times be a Property Trustee hereunder with respect to the Trust

Securities.  The Property Trustee shall

be a Person that is eligible pursuant to the Trust Indenture Act to act as such

and has a combined capital and surplus of at least $50,000,000.  If any such Person publishes reports of

condition at least annually, pursuant to law or to the requirements of its

supervising or examining authority, then for the purposes of this Section, the

combined capital and surplus of such Person shall be deemed to be its combined

capital and surplus as set forth in its most recent report of condition so

published.  If at any time the Property

Trustee with respect to the Trust Securities shall cease to be eligible in

accordance with the provisions of this Section, it shall resign immediately in

the manner and with the effect hereinafter specified in this Article.




 




(b)                                 There

shall at all times be one or more Administrative Trustees hereunder with

respect to the Trust Securities.  Each

Administrative Trustee shall be either a natural person who is at least 21

years of age or a legal entity that shall act through one or more persons

authorized to bind that entity.




 




(c)                                  There

shall at all times be a Delaware Trustee with respect to the Trust

Securities.  The Delaware Trustee shall

either be (i) a natural person who is at least 21 years of age and a resident

of the State of Delaware or (ii) a legal entity with its principal place of

business in the State of Delaware and that otherwise meets the requirements of

applicable Delaware law that shall act through one or more persons authorized

to bind such entity.




 




37





























 




SECTION 808.  CONFLICTING INTERESTS.




 




If the Property

Trustee has or shall acquire a conflicting interest within the meaning of the

Trust Indenture Act, the Property Trustee shall either eliminate such interest

or resign, to the extent and in the manner provided by, and subject to the

provisions of, the Trust Indenture Act and this Trust Agreement.




 




SECTION 809. 

CO-TRUSTEES AND SEPARATE TRUSTEE.




 




Unless an Event of

Default shall have occurred and be continuing, at any time or times, for the

purpose of meeting the legal requirements of the Trust Indenture Act or of any

jurisdiction in which any part of the Trust Property may at the time be

located, the Depositor and the Administrative Trustees shall have power to

appoint, and upon the written request of the Property Trustee, the Depositor

and the Administrative Trustees shall for such purpose join with the Property

Trustee in the execution, delivery and performance of all instruments and

agreements necessary or proper to appoint, one or more Persons approved by the

Property Trustee either to act as co-trustee, jointly with the Property

Trustee, of all or any part of such Trust Property, or to the extent required

by law to act as separate trustee of any such property, in either case with

such powers as may be provided in the instrument of appointment, and to vest in

such Person or Persons in the capacity aforesaid, any property, title, right or

power deemed necessary or desirable, subject to the other provisions of this

Section. If the Depositor and the Administrative Trustees do not join in such

appointment within 15 days after the receipt by them of a request so to do, or

in case a Debenture Event of Default has occurred and is continuing, the

Property Trustee alone shall have power to make such appointment.  Any co-trustee or separate trustee appointed

pursuant to this Section shall either be (i) a natural person who is at least

21 years of age and a resident of the United States or (ii) a legal entity with

its principal place of business in the United States that shall act through one

or more persons authorized to bind such entity.




 




Should any written

instrument from the Depositor be required by any co-trustee or separate trustee

so appointed for more fully confirming to such co-trustee or separate trustee

such property, title, right, or power, any and all such instruments shall, on

request, be executed, acknowledged, and delivered by the Depositor.




 




Every co-trustee

or separate trustee shall, to the extent permitted by law, but to such extent

only, be appointed subject to the following terms, namely:




 




(a)                                  The

Trust Securities shall be executed and delivered and all rights, powers, duties

and obligations hereunder in respect of the custody of securities, cash and

other personal property held by, or required to be deposited or pledged with,

the Trustees specified hereunder, shall be exercised, solely by such Trustees

and not by such co-trustee or separate trustee.




 




(b)                                 The

rights, powers, duties and obligations hereby conferred or imposed upon the

Property Trustee in respect of any property covered by such appointment shall

be conferred or imposed upon and exercised or performed by the Property Trustee

or by the Property Trustee and such co-trustee or separate trustee jointly, as

shall be provided in the instrument appointing such co-trustee or separate

trustee, except to the extent that under any law of any jurisdiction in which




 




38





























 




any particular act is to be performed, the Property Trustee shall be

incompetent or unqualified to perform such act, in which event such rights,

powers, duties and obligations shall be exercised and performed by such

co-trustee or separate trustee.




 




(c)                                  The

Property Trustee at any time, by an instrument in writing executed by it, with

the written concurrence of the Depositor, may accept the resignation of or

remove any co-trustee or separate trustee appointed under this Section, and, in

case a Debenture Event of Default has occurred and is continuing, the Property

Trustee shall have power to accept the resignation of, or remove, any such

co-trustee or separate trustee without the concurrence of the Depositor. Upon

the written request of the Property Trustee, the Depositor shall join with the

Property Trustee in the execution, delivery and performance of all instruments

and agreements necessary or proper to effectuate such resignation or

removal.  A successor to any co-trustee

or separate trustee so resigned or removed may be appointed in the manner

provided in this Section 809.




 




(d)                                 No

co-trustee or separate trustee hereunder shall be personally liable by reason

of any act or omission of the Property Trustee or any other trustee hereunder.




 




(e)                                  The

Property Trustee shall not be liable by reason of any act of a co-trustee or

separate trustee.




 




(f)                                    Any

Act of Holders delivered to the Property Trustee shall be deemed to have been

delivered to each such co-trustee and separate trustee.




 




SECTION 810.  RESIGNATION AND REMOVAL; APPOINTMENT OF

SUCCESSOR.




 




No resignation or

removal of any Trustee (the “Relevant Trustee”) and no appointment of a

successor Trustee pursuant to this Article shall become effective until the

acceptance of appointment by the successor Trustee in accordance with the

applicable requirements of Section 811.




 




Subject to the

immediately preceding paragraph, the Relevant Trustee may resign at any time

with respect to the Trust Securities by giving written notice thereof to the

Property Trustee and the Depositor.  If

the instrument of acceptance by the successor Trustee required by Section 811

shall not have been delivered to the Relevant Trustee within 30 days after the

giving of such notice of resignation, the Relevant Trustee may petition, at the

expense of the Depositor, any court of competent jurisdiction for the appointment

of a successor Relevant Trustee with respect to the Trust Securities.




 




Unless a Debenture

Event of Default shall have occurred and be continuing, any Trustee may be

removed at any time by Act of the Common Securityholder.  If a Debenture Event of Default shall have

occurred and be continuing, the Property Trustee or the Delaware Trustee, or

both of them, may be removed at such time by Act of the Holders of a majority

in Liquidation Amount of the Capital Securities, delivered to the Relevant

Trustee (in its individual capacity and on behalf of the Trust).  An Administrative Trustee may be removed by

the Common Securityholder at any time. 

In no event will the Holders of the Capital Securities have the right to

vote to appoint, remove or replace the Administrative Trustees.




 




39





























 




If any Trustee

shall resign, be removed or become incapable of acting as Trustee, or if a

vacancy shall occur in the office of any Trustee for any cause, at a time when

no Debenture Event of Default shall have occurred and be continuing, the Common

Securityholder, by Act of the Common Securityholder delivered to the retiring

Trustee, shall promptly appoint a successor Trustee or Trustees with respect to

the Trust Securities and the Trust, and the successor Trustee shall comply with

the applicable requirements of Section 811. If the Property Trustee or the

Delaware Trustee shall resign, be removed or become incapable of continuing to

act as the Property Trustee or the Delaware Trustee, as the case may be, at a

time when a Debenture Event of Default shall have occurred and is continuing,

the Capital Securityholders, by Act of the Securityholders of a majority in

Liquidation Amount of the Capital Securities then Outstanding delivered to the

retiring Relevant Trustee, shall promptly appoint a successor Relevant Trustee

or Trustees with respect to the Trust Securities and the Trust, and such

successor Trustee shall comply with the applicable requirements of Section 811.  If an Administrative Trustee shall resign,

be removed or become incapable of acting as Administrative Trustee, at a time

when a Debenture Event of Default shall have occurred and be continuing, the

Common Securityholder, by Act of the Common Securityholder delivered to an Administrative

Trustee, shall promptly appoint a successor Administrative Trustee or

Administrative Trustees with respect to the Trust Securities and the Trust, and

such successor Administrative Trustee or Administrative Trustees shall comply

with the applicable requirements of Section 811.  If no successor Relevant Trustee with respect to the Trust

Securities shall have been so appointed by the Common Securityholder or the

Capital Securityholders and accepted appointment in the manner required by

Section 811, any Securityholder who has been a Securityholder of Trust

Securities on behalf of such Securityholder and all others similarly situated

may petition a court of competent jurisdiction for the appointment Trustee with

respect to the Trust Securities.




 




The Property

Trustee shall give notice of each resignation and each removal of a Trustee and

each appointment of a successor Trustee to all Securityholders in the manner

provided in Section 1008 and shall give notice to the Depositor. Each notice

shall include the name of the successor Relevant Trustee and the address of its

Corporate Trust office if it is the Property Trustee.




 




Notwithstanding

the foregoing or any other provision of this Trust Agreement, in the event any

Administrative Trustee or a Delaware Trustee who is a natural person dies or

becomes, in the opinion of the Depositor, incompetent or incapacitated, the

vacancy created by such death, incompetence or incapacity may be filled by (a)

the unanimous act of remaining Administrative Trustees if there are at least

two of them or (b) otherwise by the Depositor (with the successor in each case

being a Person who satisfies the eligibility requirement for Administrative

Trustees set forth in Section 807).




 




SECTION 811. 

ACCEPTANCE OF APPOINTMENT BY SUCCESSOR.




 




In case of the appointment hereunder of a successor

Relevant Trustee with respect to the Trust Securities and the Trust, the

retiring Relevant Trustee (if requested by the Depositor) and each successor

Relevant Trustee with respect to the Trust Securities shall execute and deliver

an instrument hereto wherein each successor Relevant Trustee shall accept such

appointment and which shall contain such provisions as shall be necessary or

desirable to transfer and confirm to,




 




40





























 




and to vest in, each successor Relevant Trustee all the rights, powers,

trusts and duties of the retiring Relevant Trustee with respect to the Trust

Securities and the Trust and upon the execution and delivery of such instrument

the resignation or removal of the retiring Relevant Trustee shall become

effective to the extent provided therein and each such successor Relevant

Trustee, without any further act, deed or conveyance, shall become vested with

all the rights, powers, trusts and duties of the retiring Relevant Trustee with

respect to the Trust Securities and the Trust; but, on request of the Trust or

any successor Relevant Trustee such retiring Relevant Trustee shall duly

assign, transfer and deliver to such successor Relevant Trustee all Trust

Property, all proceeds thereof and money held by such retiring Relevant Trustee

hereunder with respect to the Trust Securities and the Trust.




 




Upon request of

any such successor Relevant Trustee, the Trust shall execute any and all

instruments for more fully and certainly vesting in and confirming to such

successor Relevant Trustee all such rights, powers and trusts referred to in

the immediately preceding paragraph, as the case may be.




 




No successor

Relevant Trustee shall accept its appointment unless at the time of such

acceptance such successor Relevant Trustee shall be qualified and eligible

under this Article.




 




SECTION 812.  MERGER, CONVERSION, CONSOLIDATION OR

SUCCESSION TO BUSINESS.




 




Any Person into

which the Property Trustee, the Delaware Trustee or any Administrative Trustee

that is not a natural person may be merged or converted or with which it may be

consolidated, or any Person resulting from any merger, conversion or

consolidation to which such Relevant Trustee shall be a party, or any

corporation succeeding to all or substantially all the corporate trust business

of such Relevant Trustee, shall be the successor of such Relevant Trustee

hereunder, provided such Person shall be otherwise qualified and eligible under

this Article, without the execution or filing of any paper or any further act

on the part of any of the parties hereto.




 




SECTION 813. 

PREFERENTIAL COLLECTION OF CLAIMS AGAINST DEPOSITOR OR TRUST.




 




If and when the

Property Trustee or the Delaware Trustee shall be or become a creditor of the

Depositor or the Trust (or any other obligor upon the Junior Subordinated

Debentures or the Trust Securities), the Property Trustee or the Delaware

Trustee, as the case may be, shall be subject to and shall take all actions

necessary in order to comply with the provisions of the Trust Indenture Act

regarding the collection of claims against the Depositor or Trust (or any such

other obligor).




 




SECTION 814. 

REPORTS BY PROPERTY TRUSTEE.




 




(a)                                  Not

later than January 31 of each year commencing with January 31, 2004, the

Property Trustee shall transmit to all Securityholders in accordance with

Section 1008, and to the Depositor, a brief report dated as of the preceding

December 31 with respect to:




 




41





























 




(i)                                     its

eligibility under Section 807 or, in lieu thereof, if to the best of its

knowledge it has continued to be eligible under said Section, a written

statement to such effect; and




 




(ii)                                  any

change in the property and funds in its possession as Property Trustee since

the date of its last report and any action taken by the Property Trustee in the

performance of its duties hereunder which it has not previously reported and

which in its opinion materially affects the Trust Securities.




 




(b)                                 In

addition the Property Trustee shall transmit to Securityholders such reports

concerning the Property Trustee and its actions under this Trust Agreement as

may be required pursuant to the Trust Indenture Act at the times and in the

manner provided pursuant thereto.




 




(c)                                  A

copy of each such report shall, at the time of such transmission to Holders, be

filed by the Property Trustee with each national securities exchange or other

organization upon which the Trust Securities may be listed, with the Commission

and with the Depositor.




 




SECTION 815. 

REPORTS TO THE PROPERTY TRUSTEE.




 




The Depositor and

the Administrative Trustees on behalf of the Trust shall provide to the

Property Trustee such documents, reports and information as required by Section

314 of the Trust Indenture Act (if any) and the compliance certificate required

by Section 314(a) of the Trust Indenture Act in the form, in the manner and at

the times required by Section 314 of the Trust Indenture Act.




 




SECTION 816.  EVIDENCE OF COMPLIANCE WITH CONDITIONS

PRECEDENT.




 




Each of the

Depositor and the Administrative Trustees on behalf of the Trust shall provide

to the Property Trustee such evidence of compliance with the conditions

precedent, if any, provided for in this Trust Agreement that relate to any of

the matters set forth in Section 314(c) of the Trust Indenture Act. Any

certificate or opinion required to be given by an officer pursuant to Section

314(c)(1) of the Trust Indenture Act shall be given in the form of an Officers’

Certificate.




 




SECTION 817. 

NUMBER OF TRUSTEES.




 




(a)                                  The

number of Trustees shall be five, provided that the Holder of all of the Common

Securities by written instrument may increase or decrease the number of

Administrative Trustees.  The Property

Trustee and the Delaware Trustee may be the same Person.




 




(b)                                 If

a Trustee ceases to hold office for any reason and the number of Administrative

Trustees is not reduced pursuant to Section 817(a), or if the number of

Trustees is increased pursuant to Section 817(a), a vacancy shall occur.  The vacancy shall be filled with a Trustee

appointed in accordance with Section 810.




 




42





























 




(c)                                  The

death, resignation, retirement, removal, bankruptcy, incompetence or incapacity

to perform the duties of a Trustee shall not operate to dissolve, terminate or

annul the Trust.  Whenever a vacancy in

the number of Administrative Trustees shall occur, until such vacancy is filled

by the appointment of an Administrative Trustee in accordance with Section 810,

the Administrative Trustees in office, regardless of their number (and

notwithstanding any other provision of this Agreement), shall have all the

powers granted to the Administrative Trustees and shall discharge all the

duties imposed upon the Administrative Trustees by this Trust Agreement.




 




SECTION 818.  DELEGATION OF POWER.




 




(a)                                  Any

Administrative Trustee may, by power of attorney consistent with applicable

law, delegate to any other natural person over the age of 21 his or her power

for the purpose of executing any documents contemplated in Section 207(a); and




 




(b)                                 The

Administrative Trustees shall have power to delegate from time to time to such

of their number or to the Depositor the doing of such things and the execution

of such instruments either in the name of the Trust or the names of the

Administrative Trustees or otherwise as the Administrative Trustees may deem

expedient, to the extent such delegation is not prohibited by applicable law or

contrary to the provisions of the Trust, as set forth herein.




 




SECTION 819. 

VOTING.




 




Except as

otherwise provided in this Trust Agreement, the consent or approval of the

Administrative Trustees shall require consent or approval by not less than a

majority of the Administrative Trustees, unless there are only two, in which case

both must consent.




 




ARTICLE IX.




DISSOLUTION, TERMINATION,

LIQUIDATION AND MERGER




 




SECTION 901.  DISSOLUTION UPON EXPIRATION DATE.




 




Unless earlier

dissolved, the Trust shall automatically dissolve on March 15, 2038 (the

“Expiration Date”).




 




SECTION 902.  EARLY TERMINATION.




 




The first to occur

of any of the following events is an “Early Termination Event,” the occurrence

of which shall cause the Trust to dissolve:




 




(a)                                  the

occurrence of a Bankruptcy Event in respect of, or the dissolution or

liquidation of, the Depositor;




 




(b)                                 delivery

of written direction to the Property Trustee by the Depositor at any time

(which direction is wholly optional and within the discretion of the Depositor)

to dissolve the Trust and, after satisfaction of liabilities to creditors of

the Trust as provided by applicable law,




 




43





























 




distribute the Junior Subordinated Debentures to Securityholders in

exchange for the Capital Securities in accordance with Section 904;




 




(c)                                  the

redemption of all of the Capital Securities in connection with the redemption

of all of the Junior Subordinated Debentures; and




 




(d)                                 an

order for dissolution of the Trust shall have been entered by a court of

competent jurisdiction.




 




SECTION 903. 

TERMINATION.




 




The respective

obligations and responsibilities of the Trustees and the Trust created and

continued hereby shall terminate upon the latest to occur of the following: (a)

the distribution by the Property Trustee to Securityholders upon the

liquidation of the Trust pursuant to Section 904, or upon the redemption of all

of the Trust Securities pursuant to Section 402, of all amounts required to be

distributed hereunder upon the final payment of the Trust Securities; (b) the

payment of any expenses owed by the Trust; (c) the discharge of all

administrative duties of the Administrative Trustees, including the performance

of any tax reporting obligations with respect to the Trust or the

Securityholders, and (d) the filing of a Certificate of cancellation by the

Administrative Trustees under the Delaware Statutory Trust Act.




 




SECTION 904. 

LIQUIDATION.




 




(a)                                  If

an Early Termination Event specified in clause (a), (b), or (d) of Section 902

occurs or upon the Expiration Date, the Trust shall be liquidated by the

Trustees as expeditiously as the Trustees determine to be possible by

distributing, after satisfaction of liabilities to creditors of the Trust as

provided by applicable law, to each Securityholder a Like Amount of Junior

Subordinated Debentures, subject to Section 904(d).  Notice of liquidation shall be given by the Property Trustee by

first-class mail, postage prepaid, mailed not later than 30 nor more than 60

days prior to the Liquidation Date to each Holder of Trust Securities at such

Holder’s address appearing in the Securities Register.  All notices of liquidation shall:




 




(i)                                     state

the Liquidation Date;




 




(ii)                                  state

that from and after the Liquidation Date, the Trust Securities will no longer

be deemed to be Outstanding and any Trust Securities Certificates not surrendered

for exchange will be deemed to represent a Like Amount of Junior Subordinated

Debentures; and




 




(iii)                               provide

such information with respect to the mechanics by which Holders may exchange

Trust Securities certificates for Junior Subordinated Debentures, or if Section

904(d) applies receive a Liquidation Distribution, as the Administrative

Trustees or the Property Trustee shall deem appropriate.




 




(b)                                 Except

where Section 902(c) or 904(d) applies, in order to effect the liquidation of

the Trust and distribution of the Junior Subordinated Debentures to

Securityholders, the Property Trustee shall establish a record date for such

distribution (which shall be not more than 45 days




 




44





























 




prior to the Liquidation Date) and, either itself acting as exchange

agent or through the appointment of a separate exchange agent, shall establish

such procedures as it shall deem appropriate to effect the distribution of

Junior Subordinated Debentures in exchange for the Outstanding Trust Securities

Certificates.




 




(c)                                  Except

where Section 902(c) or 904(d) applies, after the Liquidation Date, (i) the

Trust Securities will no longer be deemed to be Outstanding, (ii) certificates

(or, at the election of the Depositor a Global Subordinated Debenture, subject

to the provisions of the Indenture) representing a Like Amount of Junior

Subordinated Debentures will be issued to holders of Trust Securities

Certificates upon surrender of such certificates to the Administrative Trustees

or their agent for exchange, (iii) the Depositor shall use its reasonable

efforts to have the Junior Subordinated Debentures listed on the Nasdaq

National Market or on such other securities exchange or other organization as

the Capital Securities may then be listed or traded,  (iv) any Trust Securities Certificates not so surrendered for

exchange will be deemed to represent a Like Amount of Junior Subordinated

Debentures, accruing interest at the rate provided for in the Junior

Subordinated Debentures from the last Distribution Date on which a Distribution

was made on such Trust Securities Certificates until such certificates are so

surrendered (and until such certificates are so surrendered, no payments of

interest or principal will be made to holders of Trust Securities Certificates

with respect to such Junior Subordinated Debentures) and (v) all rights of

Securityholders holding Trust Securities will cease, except the right of such

Securityholders to receive Junior Subordinated Debentures upon surrender of Trust

Securities Certificates.




 




(d)                                 In

the event that, notwithstanding the other provisions of this Section 904,

whether because of an order for dissolution entered by a court of competent

jurisdiction or otherwise, distribution of the Junior Subordinated Debentures

in the manner provided herein is determined by the Property Trustee not to be

practical, the Trust Property shall be liquidated, and the Trust shall be

wound-up by the Property Trustee in such manner as the Property Trustee

determines.  In such event,

Securityholders will be entitled to receive out of the assets of the Trust

available for distribution to Securityholders, after satisfaction of

liabilities to creditors of the Trust as provided by applicable law, an amount

equal to the Liquidation Amount per Trust Security plus accumulated and unpaid

Distributions thereon to the date of payment (such amount being the

“Liquidation Distribution”).  If, upon

any such winding-up, the Liquidation Distribution can be paid only in part

because the Trust has insufficient assets available to pay in full the

aggregate Liquidation Distribution, then, subject to the next succeeding

sentence, the amounts payable by the Trust on the Trust Securities shall be

paid on a pro rata basis (based upon Liquidation Amounts). The Holder of the

Common Securities will be entitled to receive Liquidation Distributions upon

any such winding-up pro rata (determined as aforesaid) with Holders of Capital

Securities, except that, if a Debenture Event of Default has occurred and is

continuing, the Capital Securities shall have a priority over the Common

Securities.




 




SECTION 905. 

MERGERS, CONSOLIDATIONS, AMALGAMATIONS OR REPLACEMENTS OF THE TRUST.




 




The Trust may not

merge with or into, consolidate, amalgamate, or be replaced by, or convey,

transfer or lease its properties and assets substantially as an entirety to any

corporation or other Person, except pursuant Article IX.  At the request of the Depositor, with the

consent of




 




45





























 




the Administrative Trustees and without the consent of the holders of

the Capital Securities, the Property Trustee or the Delaware Trustee, the Trust

may merge with or into, consolidate, amalgamate, be replaced by or convey,

transfer or lease its properties and assets substantially as an entirety to a

trust organized as such under the laws of any state; provided, that (i) such

successor entity either (a) expressly assumes all of the obligations of the

Trust with respect to the Capital Securities or (b) substitutes for the Capital

Securities other securities having substantially the same terms as the Capital

Securities (the “Successor Securities”) so long as the Successor Securities

rank the same as the Capital Securities rank in priority with respect to

distributions and payments upon liquidation, redemption and otherwise, (ii) the

Depositor expressly appoints a trustee of such successor entity possessing

substantially the same powers and duties as the Property Trustee as the holder

of the Junior Subordinated Debentures, (iii) such merger, consolidation,

amalgamation, replacement, conveyance, transfer or lease does not adversely

affect the rights, preferences and privileges of the Holders of the Capital

Securities (including any Successor Securities) in any material respect, (iv)

such successor entity has a purpose substantially identical to that of the

Trust, (v) the Successor Securities will be listed or traded on any national

securities exchange or other organization on which the Capital Securities may

then be listed, (vi) prior to such merger, consolidation, amalgamation,

replacement, conveyance, transfer or lease, the Depositor has received an

Opinion of Counsel experienced in such matters to the effect that (a) such

merger, consolidation, amalgamation, replacement, conveyance, transfer or lease

does not adversely affect the rights, preferences and privileges of the Holders

of the Capital Securities (including any Successor Securities) in any material

respect, and (b) following such merger, consolidation, amalgamation,

replacement, conveyance, transfer or lease, neither the Trust nor such

successor entity will be required to register as an “investment company” under

the Investment Company Act and (vii) the Depositor owns all of the common

securities of such successor entity and guarantees the obligations of such

successor entity under the Successor Securities at least to the extent provided

by the Guarantee.  Notwithstanding the

foregoing, the Trust shall not, except with the consent of holders of 100% in

Liquidation Amount of the Capital Securities, consolidate, amalgamate, merge

with or into, or be replaced by or convey, transfer or lease its properties and

assets substantially as an entirety to any other Person or permit any other

Person to consolidate, amalgamate, merge with or into, or replace it, if such

consolidation, amalgamation, merger or replacement would cause the Trust or the

successor entity to be classified as other than a grantor trust for United

States federal income tax purposes.




 




ARTICLE X.




MISCELLANEOUS PROVISIONS




 




SECTION 1001.  LIMITATION OF RIGHTS OF SECURITYHOLDERS.




 




The death,

bankruptcy, termination, dissolution or incapacity of any Person having an

interest, beneficial or otherwise, in Trust Securities shall not operate to

terminate this Trust Agreement, nor dissolve, terminate or annul the Trust, nor

entitle the legal representatives or heirs of such Person, to claim an

accounting, take any action or bring any proceeding in any court for a

partition or winding-up of the arrangements contemplated hereby, nor otherwise

affect the rights, obligations and liabilities of the parties hereto or any of

them.




 




46





























 




SECTION 1002. 

AMENDMENT.




 




(a)                                  This

Trust Agreement may be amended from time to time by the Administrative Trustees

and the Depositor, without the consent of any Securityholders, (i) as provided

in Section 811 with respect to acceptance of appointment by a successor

Trustee, (ii) to cure any ambiguity, correct or supplement any provision herein

or therein which may be inconsistent with any other provision herein or

therein, or to make any other provisions with respect to matters or questions

arising under this Trust Agreement, that shall not be inconsistent with the

other provisions of this Trust Agreement, or (iii) to modify, eliminate or add

to any provisions of this Trust Agreement to such extent as shall be necessary

to ensure that the Trust will be classified for United States federal income

tax purposes as a grantor trust at all times that any Trust Securities are

Outstanding or to ensure that the Trust will not be required to register as an

“investment company” under the Investment Company Act; provided, however, that

in the case of clause (ii), such action shall not adversely affect in any material

respect the interests of any Securityholder, and any such amendments of this

Trust Agreement shall become effective when notice thereof is given to the

Securityholders.




 




(b)                                 Except

as provided in Section 601(c) or Section 1002(c) hereof, any provision of this

Trust Agreement may be amended by the Administrative Trustees and the Depositor

(i) with the consent of Trust Securityholders representing not less than a

majority (based upon Liquidation Amounts) of the Trust Securities then

Outstanding and (ii) upon receipt by the Trustees of an Opinion of Counsel to

the effect that such amendment or the exercise of any power granted to the

Trustees in accordance with such amendment will not affect the Trust’s status

as a grantor trust for United States federal income tax purposes or the Trust’s

exemption from status of an “investment company” under the Investment Company

Act.




 




(c)                                  In

addition to and notwithstanding any other provision in this Trust Agreement,

without the consent of each affected Securityholder, this Trust Agreement may

not be amended to (i) change the amount or timing of any Distribution on the

Trust Securities or otherwise adversely affect the amount of any Distribution

required to be made in respect of the Trust Securities as of a specified date

or (ii) restrict the right of a Securityholder to institute suit for the

enforcement of any such payment on or after such date; notwithstanding any

other provision herein, without the unanimous consent of the Securityholders,

this paragraph (c) of this Section 1002 may not be amended.




 




(d)                                 Notwithstanding

any other provisions of this Trust Agreement, no Trustee shall enter into or

consent to any amendment to this Trust Agreement which would cause the Trust to

fail or cease to qualify for the exemption from status of an “investment

company” under the Investment Company Act or to fail or cease to be classified

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




 




(e)                                  Notwithstanding

anything in this Trust Agreement to the contrary, without the consent of the

Depositor, this Trust Agreement may not be amended in a manner which imposes

any additional obligation on the Depositor.




 




(f)                                    In

the event that any amendment to this Trust Agreement is made, the

Administrative Trustees shall promptly provide to the Depositor a copy of such

amendment.




 




47





























 




(g)                                 No

amendment of this Trust Agreement that affects the Property Trustee’s or the

Delaware Trustee’s own rights, duties or immunities under this Trust Agreement

shall be effective without obtaining the prior written consent of the Property

Trustee or the Delaware Trustee, as the case maybe.  The Property Trustee shall be entitled to receive an Opinion of

Counsel and an Officers’ Certificate stating that any amendment to this Trust

Agreement is in compliance with this Trust Agreement.




 




SECTION 1003. 

SEPARABILITY.




 




In case any provision in this Trust Agreement or in

the Trust Securities Certificates shall be invalid, illegal or unenforceable,

the validity, legality and enforceability of the remaining provisions shall not

in any way be affected or impaired thereby.




 




SECTION 1004. 

GOVERNING LAW




 




THIS TRUST AGREEMENT AND THE RIGHTS AND OBLIGATIONS OF

EACH OF THE SECURITYHOLDERS, THE TRUST AND THE TRUSTEES WITH RESPECT TO THIS

TRUST AGREEMENT AND THE TRUST SECURITIES SHALL BE CONSTRUED IN ACCORDANCE WITH

AND GOVERNED BY THE LAWS OF THE STATE OF DELAWARE (WITHOUT REGARD TO CONFLICT

OF LAWS PRINCIPLES).




 




SECTION 1005.  PAYMENTS DUE ON NON-BUSINESS DAY.




 




If the date fixed

for any payment on any Trust Security shall be a day that is not a Business

Day, then such payment need not be made on such date but may be made on the

next succeeding day which is a Business Day (except as otherwise provided in

Sections 401(a) and 402(d)), with the same force and effect as though made on

the date fixed for such payment, and no distribution shall accumulate thereon

for the period after such date.




 




SECTION 1006. 

SUCCESSORS.




 




This Trust Agreement shall be binding upon and shall

inure to the benefit of any successor to the Depositor, the Trust or the

Relevant Trustee(s), including any successor by operation of law.  Except in connection with a consolidation,

merger or sale involving the Depositor that is permitted under Article Twelve of

the Indenture and pursuant to which the assignee agrees in writing to perform

the Depositor’s obligations hereunder, the Depositor shall not assign its

obligations hereunder.




 




SECTION 1007. 

HEADINGS.




 




The Article and Section headings are for convenience

only and shall not affect the construction of this Trust Agreement.




 




48





























 




SECTION 1008. 

REPORTS, NOTICES AND DEMANDS.




 




Any report, notice, demand or other communication

which by any provision of this Trust Agreement is required or permitted to be

given or served to or upon any Securityholder or the Depositor may be given or

served in writing by deposit thereof, first–class postage prepaid, in the

United States mail, hand delivery or facsimile transmission, in each case,

addressed, (a) in the case of a Capital Securityholder, to such Capital

Securityholder as such Securityholder’s name and address may appear on the

Securities Register; and (b) in the case of the Common Securityholder or the

Depositor, to Community First Bankshares, Inc., 520 Main Avenue, Fargo, North

Dakota 58124-0001; Attention: Chief Financial Officer; Facsimile No.: (701)

235-6019.  Any notice to Capital

Securityholders shall also be given to such owners as have, within two years

preceding the giving of such notice, filed their names and addresses with the

Property Trustee for that purpose.  Such

notice, demand or other communication to or upon a Securityholder shall be

deemed to have been sufficiently given or made, for all purposes, upon hand

delivery, mailing or transmission.




 




Any notice, demand or other communication which by any

provision of this Trust Agreement is required or permitted to be given or

served to or upon the Trust, the Property Trustee or the Administrative

Trustees shall be given in writing addressed (until another address is

published by the Trust) as follows: (a) with respect to the Property Trustee to

Wilmington Trust Company, Rodney Square North, 1100 North Market Street,

Wilmington, Delaware 19890-0001, Attention: Corporate Trust Administration; (b)

with respect to the Delaware Trustee, to Wilmington Trust Company, Rodney

Square North, 1100 North Market Street, Wilmington, Delaware 19890-0001,

Attention: Corporate Trust Administration; and (c) with respect to the Administrative

Trustees, to them at the address above for notices to the Depositor, marked

“Attention: Administrative Trustees of CFB Capital IV.”  Such notice, demand or other communication

to or upon the Trust or the Property Trustee shall be deemed to have been

sufficiently given or made only upon actual receipt of the writing by the Trust

or the Property Trustee.




 




SECTION 1009. 

AGREEMENT NOT TO PETITION.




 




Each of the Trustees and the Depositor agree for the

benefit of the Securityholders that, until at least one year and one day after

the Trust has been terminated in accordance with Article IX, they shall not

file, or join in the filing of, a petition against the Trust under any

bankruptcy, insolvency, reorganization or other similar law (including, without

limitation, the United States Bankruptcy Code) (collectively, “Bankruptcy

Laws”) or otherwise join in the commencement of any proceeding against the

Trust under any Bankruptcy Law. In the event the Depositor takes action in

violation of this Section 1009, the Property Trustee agrees, for the benefit of

Securityholders, that at the expense of the Depositor (which expense shall be

paid prior to the filing), it shall file an answer with the bankruptcy court or

otherwise properly contest the filing of such petition by the Depositor against

the Trust or the commencement of such action and raise the defense that the

Depositor has agreed in writing not to take such action and should be stopped

and precluded therefrom.  The provisions

of this Section 1009 shall survive the termination of this Trust Agreement.




 




49





























 




SECTION 1010. 

TRUST INDENTURE ACT; CONFLICT WITH TRUST INDENTURE ACT.




 




(a)                                  This

Trust Agreement is subject to the provisions of the Trust Indenture Act that are

required to be part of this Trust Agreement and shall, to the extent

applicable, be governed by such provisions.




 




(b)                                 The

Property Trustee shall be the only Trustee which is a trustee for the purposes

of the Trust Indenture Act.




 




(c)                                  If

any provision hereof limits, qualifies or conflicts with another provision

hereof which is required to be included in this Trust Agreement by any of the

provisions of the Trust Indenture Act, such required provision shall

control.  If any provision of this Trust

Agreement modifies or excludes any provision of the Trust Indenture Act which

may be so modified or excluded, the latter provision shall be deemed to apply

to this Trust Agreement as so modified or to be excluded, as the case may be.




 




(d)                                 The

application of the Trust Indenture Act to this Trust Agreement shall not affect

the nature of the Trust Securities as equity securities representing undivided

beneficial interests in the assets of the Trust.




 




SECTION 1011. 

ACCEPTANCE OF TERMS OF TRUST AGREEMENT, GUARANTEE AND INDENTURE.




 




THE RECEIPT AND ACCEPTANCE OF A TRUST SECURITY OR ANY

INTEREST THEREIN BY OR ON BEHALF OF A SECURITYHOLDER OR ANY BENEFICIAL OWNER,

WITHOUT ANY SIGNATURE OR FURTHER MANIFESTATION OF ASSENT, SHALL CONSTITUTE THE

UNCONDITIONAL ACCEPTANCE BY THE SECURITYHOLDER AND ALL OTHERS HAVING A

BENEFICIAL INTEREST IN SUCH TRUST SECURITY OF ALL THE TERMS AND PROVISIONS OF

THIS TRUST AGREEMENT AND AGREEMENT TO THE SUBORDINATION PROVISIONS AND OTHER

TERMS OF THE GUARANTEE AND THE INDENTURE, AND SHALL CONSTITUTE THE AGREEMENT OF

THE TRUST, SUCH SECURITYHOLDER AND SUCH OTHERS THAT THE TERMS AND PROVISIONS OF

THIS TRUST AGREEMENT SHALL BE BINDING, OPERATIVE AND EFFECTIVE AS BETWEEN THE

TRUST AND SUCH SECURITYHOLDER AND SUCH OTHERS.




 




	

   


  	

  COMMUNITY

  FIRST BANKSHARES, INC.,


  
	

   


  	

  as

  Depositor


  
	

   


  	

   


  
	

   


  	

  By:  


  	

  /s/

  Mark A. Anderson


  	

   


  
	

   


  	

  Name:  Mark A. Anderson


  
	

   


  	

  Title:  President


  
	

   


  	

   


  
	

   


  	

  WILMINGTON

  TRUST COMPANY,


  
	

   


  	

  as

  Property Trustee


  
	

   


  	

   


  
	

   


  	

  By:

  


  	

  /s/

  Christopher J. Slaybaugh


  	

   


  
	

   


  	

  Name:


  	

  Christopher

  J. Slaybaugh


  
	

   


  	

  Title:


  	

  Financial Services

  Officer


  
						





 




50





























 




	

   


  	

  WILMINGTON

  TRUST COMPANY,


  
	

   


  	

  as

  Delaware Trustee


  
	

   


  	

   


  
	

   


  	

  By:

  


  	

  /s/

  Christopher J. Slaybaugh


  	

   


  
	

   


  	

  Name:


  	

  Christopher

  J. Slaybaugh


  
	

   


  	

  Title:


  	

  Financial Services

  Officer


  
	

   


  	

   


  
	

   


  	

  /s/ Mark A. Anderson


  
	

   


  	

  Mark A. Anderson, As Administrative Trustee


  
	

   


  	

   


  
	

   


  	

  /s/ Craig A. Weiss


  
	

   


  	

  Craig A. Weiss, As Administrative Trustee


  
	

   


  	

   


  
	

   


  	

  /s/ Thomas R. Anderson


  
	

   


  	

  Thomas R. Anderson, As Administrative Trustee


  
					





 




51





























 




Exhibit A




 




CERTIFICATE OF TRUST




OF




CFB CAPITAL IV




 




This Certificate of Trust of CFB CAPITAL IV (the

“Trust”), dated

                            ,

2002, is being duly executed and filed by Wilmington Trust Company, a Delaware

banking corporation, and Mark A. Anderson, Craig A. Weiss, and Thomas R.

Anderson, each an individual, as trustees, to form a business trust under the

Delaware Business Trust Act (12 Del. C. Section 3801 et seq.) (the “Act”).




 




1.                                       NAME.  The name of the business trust formed hereby

is CFB Capital IV.




 




2.                                       DELAWARE

TRUSTEE.  The name and business address

of the trustee of the Trust in  the

State of Delaware is Wilmington Trust Company, Rodney Square North, 1100 North

Market Street, Wilmington, Delaware 19890-0001, Attn: Corporate Trust

Administration.




 




3.                                       EFFECTIVE

DATE.  This Certificate of Trust shall

be effective upon its filing.




 




IN WITNESS WHEREOF, the undersigned, being all of the

trustees of the Trust, have executed this Certificate of Trust as of the date

first above written in accordance with Section 3811(a) of the Act.




 




	

   


  	

  WILMINGTON TRUST COMPANY,


  
	

   


  	

  as Trustee


  
	

   


  	

   


  
	

   


  	

  By:


  	

   


  
	

   


  	

  Name:


  
	

   


  	

  Title:


  
	

   


  	

   


  
	

   


  	

   


  
	

   


  	

  Thomas R. Anderson, as Trustee


  





 




A-1





























 




Exhibit C




 




[FORM OF COMMON SECURITIES CERTIFICATE]




 




THIS CERTIFICATE IS NOT TRANSFERABLE

EXCEPT TO THE




DEPOSITOR OR AN AFFILIATE

OF THE DEPOSITOR IN COMPLIANCE




WITH APPLICABLE LAW AND

SECTION 510 OF THE TRUST




AGREEMENT AND ONLY IN

CONNECTION WITH A




SIMULTANEOUS DELEGATION

AND ASSIGNMENT OF




THE EXPENSE AGREEMENT

REFERRED TO THEREIN




 




	

  Certificate Number


  	

   


  	

  Number of Common

  Securities


  





C-




 




Certificate Evidencing

Common Securities




of




CFB Capital IV




                  Common

Securities




(liquidation amount $25

per Common Security)




 




CFB Capital IV, a statutory trust formed under the

laws of the State of Delaware (the “Issuer Trust”), hereby certifies that [NAME

OF HOLDER] (the “Holder”) is the registered owner of

                        

common securities of the Issuer Trust representing common undivided beneficial

interests in the assets of the Issuer Trust and designated the CFB Capital IV

7.60% Common Securities (liquidation amount $25 per Common Security) (the

“Common Securities”).  Except in

accordance with Section 510 of the Trust Agreement (as defined below) the

Common Securities are not transferable and any attempted transfer hereof other

than in accordance therewith shall be void. 

The designations, rights, privileges, restrictions, preferences and

other terms and provisions of the Common Securities are set forth in, and this

certificate and the Common Securities represented hereby are issued and shall

in all respects be subject to the terms and provisions of, the Amended and

Restated Trust Agreement of the Issuer Trust, dated as of March 4, 2003, as the

same may be amended from time to time (the “Trust Agreement”), among Community

First Bankshares, Inc., as Depositor, Wilmington Trust Company, as Property

Trustee, Wilmington Trust Company, as Delaware Trustee, the Administrative

Trustees named therein, and the Holders, from time to time, of undivided

beneficial interests in the assets of the Trust, including the designation of

the terms of the Common Securities as set forth therein.  The Issuer Trust will furnish a copy of the

Trust Agreement to the holder without charge upon written request to the Issuer

Trust at its principal place of business or registered office.




 




Upon receipt of this certificate, the Holder is bound

by the Trust Agreement and is entitled to the benefits thereunder.




 




Terms used but not defined herein have the meanings set

forth in the Trust Agreement.




 




IN WITNESS WHEREOF, one of the

Administrative Trustees of the Issuer Trust has executed this certificate this

4th day of March, 2003.




 




	

   


  	

  CFB

  CAPITAL IV


  
	

   


  	

  By:


  	

   


  	

   


  
	

   


  	

  Mark

  A. Anderson


  
	

   


  	

  Administrative Trustee


  





 




C-1





























 




Exhibit D




 




AGREEMENT AS TO EXPENSES

AND LIABILITIES




 




AGREEMENT dated as of March 4, 2003, between Community

First Bankshares, Inc., a Delaware corporation (“CFB”), and CFB Capital IV, a

Delaware statutory trust (the “Trust”).




 




WHEREAS, the Trust intends to issue its Common

Securities (the “Common Securities”) to, and receive 7.60% Junior Subordinated

Debentures (the “Junior Subordinated Debentures”) from, CFB and to issue and

sell 7.60% Cumulative Capital Securities (the “Capital Securities”) with such

powers, preferences and special rights and restrictions as are set forth in the

Amended and Restated Trust Agreement of the Trust dated as of March 4, 2003, as

the same may be amended from time to time (the “Trust Agreement”); and




 




WHEREAS, CFB will directly or indirectly own all of

the Common Securities of the Trust and will issue the Junior Subordinated

Debentures.




 




NOW, THEREFORE, in consideration of the purchase by

each holder of the Capital Securities, which purchase CFB hereby agrees shall

benefit CFB and which purchase CFB acknowledges will be made in reliance upon

the execution and delivery of this Agreement, CFB, including in its capacity as

holder of the Common Securities, and the Trust hereby agree as follows:




 




ARTICLE I




 




SECTION 1.1. GUARANTEE BY CFB.




 




Subject to the terms and conditions hereof, CFB,

including in its capacity as holder of the Common Securities, hereby

irrevocably and unconditionally guarantees to each person or entity to whom the

Trust is now or hereafter becomes indebted or liable (the “Beneficiaries”) the

full payment, when and as due, of any and all Obligations (as hereinafter

defined) to such Beneficiaries.  As used

herein, “Obligations” means any costs, expenses or liabilities of the Trust other

than obligations of the Trust to pay to holders of any Capital Securities or

other similar interests in the Trust the amounts due such holders pursuant to

the terms of the Capital Securities or such other similar interests, as the

case may be.  This Agreement is intended

to be for the benefit of, and to be enforceable by, all such Beneficiaries,

whether or not such Beneficiaries have received notice hereof.




 




SECTION 1.2. TERM OF AGREEMENT.




 




This Agreement shall terminate and be of no further

force and effect upon the later of (a) the date on which full payment has been

made of all amounts payable to all holders of all the Capital Securities

(whether upon redemption, liquidation, exchange or otherwise) and (b) the date

on which there are no Beneficiaries remaining; provided, however, that this

Agreement shall continue to be effective or shall be reinstated, as the case

may be, if at any time any holder of Capital Securities or any Beneficiary must

restore payment of any sums paid under the Capital Securities, under any

Obligation, under the Capital Securities Guarantee Agreement dated the date

hereof by CFB and Wilmington Trust Company as guaranty trustee or under this




 




 




D-1





























 




Agreement, for any reason whatsoever.  This Agreement is continuing, irrevocable,

unconditional and absolute.




 




SECTION 1.3. WAIVER OF NOTICE.




 




CFB hereby waives

notice of acceptance of this Agreement and of any Obligation to which it

applies or may apply, and CFB hereby waives presentment, demand for payment,

protest, notice of nonpayment, notice of dishonor, notice of redemption and all

other notices and demands.




 




SECTION 1.4. NO IMPAIRMENT.




 




The obligations,

covenants, agreements and duties of CFB under this Agreement shall in no way be

affected or impaired by reason of the happening from time to time of any of the

following:




 




(a)                    the extension

of time for the payment by the Trust of all or any portion of the Obligations

or for the performance of any other obligation under, arising out of, or in

connection with, the Obligations;




 




(b)                   any failure,

omission, delay or lack of diligence on the part of the Beneficiaries to

enforce, assert or exercise any right, privilege, power or remedy conferred on

the Beneficiaries with respect to the Obligations or any action on the part of

the Trust granting indulgence or extension of any kind; or




 




(c)                    the voluntary

or involuntary liquidation, dissolution, sale of any collateral, receivership,

insolvency, bankruptcy, assignment for the benefit of creditors,

reorganization, arrangement, composition or readjustment of debt of, or other

similar proceedings affecting, the Trust or any of the assets of the Trust.




 




The Beneficiaries

shall not be obligated to give notice to, or obtain the consent of, CFB with respect

to the happening of any of the foregoing.




 




SECTION 1.5. ENFORCEMENT.




 




A Beneficiary may enforce this Agreement directly

against CFB, and CFB waives any right or remedy to require that any action be

brought against the Trust or any other person or entity before proceeding

against CFB.




 




D-2





























 




ARTICLE II




 




SECTION 2.1. BINDING EFFECT.




 




All guarantees and agreements contained in this

Agreement shall bind the successors, assigns, receivers, trustees and representatives

of CFB and shall inure to the benefit of the Beneficiaries.




 




SECTION 2.2. AMENDMENT.




 




So long as there remains any Beneficiary or any

Capital Securities are outstanding, this Agreement shall not be modified or

amended in any manner adverse to such Beneficiary or to the holders of the

Capital Securities.




 




SECTION 2.3. NOTICES.




 




Any notice, request or other communication required or

permitted to be given hereunder shall be given in writing by delivering the

same by facsimile transmission (confirmed by mail), telex, or by registered or

certified mail, addressed as follows (and if so given, shall be deemed given

when mailed or upon receipt of an answer back, if sent by telex):




 




CFB Capital IV




c/o Wilmington Trust Company




Rodney Square North




1100 North Market Street




Wilmington, DE 

19890-0001




Facsimile No.: 

(302) 651-1576




Attention: 

Corporate Trust Administration




 




CFB Community First Bankshares, Inc.




520 Main Avenue




Fargo, ND 58124-0001




Facsimile No.: (701) 235-6019




Attention: 

Craig A. Weiss, Chief Financial Officer




 




SECTION 2.4. GOVERNING LAW.




 




This Agreement shall be governed by and construed and

interpreted in accordance with the laws of the State of Minnesota (without

regard to conflict of laws principles).




 




D-3





























 




THIS AGREEMENT is executed as of the day and year first above written.




 




	

   


  	

  COMMUNITY

  FIRST BANKSHARES, INC.


  
	

   


  	

   


  
	

   


  	

   


  
	

   


  	

  By:


  	

   


  
	

   


  	

  Name:  Craig A. Weiss


  
	

   


  	

  Title:  Chief Financial Officer


  
	

   


  	

   


  
	

   


  	

   


  
	

   


  	

  CFB CAPITAL IV


  
	

   


  	

   


  
	

   


  	

   


  
	

   


  	

  By:


  	

   


  
	

   


  	

  Name:  Mark

  A. Anderson


  
	

   


  	

  Title: 

  Administrative Trustee


  





 




D-4





























 




Exhibit E




 




This Capital Security is a Global Certificate within

the meaning of the Trust Agreement hereinafter referred to and is registered in

the name of The Depository Trust Company (the “Depositary”) or a nominee of the

Depositary. This Capital Security is exchangeable for Capital Securities

registered in the name of a person other than the Depositary or its nominee

only in the limited circumstances described in the Trust Agreement (as defined

below) and no transfer of this Capital Security (other than a transfer of this

Capital Security as a whole by the Depositary to a nominee of the Depositary or

by a nominee of the Depositary to the Depositary or another nominee of the

Depositary) may be registered except in limited circumstances.




 




Unless this Capital Security is presented by an

authorized representative of The Depository Trust Company, a New York

corporation (“Depository Trust Company”), to CFB Capital IV or its agent for

registration of transfer, exchange or payment, and any Capital Security issued

is registered in the name of Cede & Co., or such other name as requested by

an authorized representative of Depository Trust Company (and any payment

hereon is made to Cede & Co. or to such other entity as is requested by an

authorized representative of Depository Trust Company), ANY TRANSFER, PLEDGE,

OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL

inasmuch as the registered owner hereof, Cede & Co. has an interest herein.




 




	

  Certificate Number


  	

   


  	

  Number of Capital

  Securities


  





C-001




 




CUSIP NO. 




 




Certificate Evidencing

Capital Securities




of




CFB Capital IV




 




7.60% Cumulative Capital

Securities




(liquidation amount $25

per Capital Security)




 




 




CFB CAPITAL IV, a statutory trust created under the

laws of the State of Delaware (the “Trust”), hereby certifies that Cede &

Co. (the “Holder”) is the registered owner of

                                     

(               )

preferred securities of the Trust representing undivided beneficial interests

in the assets of the Trust and designated the

       % Cumulative Capital Securities

(liquidation amount $25 per Capital Security) (the “Capital Securities”).  The Capital Securities are transferable on

the books and records of the Trust, in person or by a duly authorized attorney,

upon surrender of this certificate duly endorsed and in proper form for

transfer as provided in Section 504 of the Trust Agreement (as defined

below).  The designations, rights,

privileges, restrictions, preferences, and other terms and provisions of the

Capital Securities are set forth in, and this certificate and the Capital

Securities represented hereby are issued and shall in all respects be subject

to the terms and provisions of, the Amended




 




E-1





























 




and Restated Trust Agreement of the Trust dated as of

                           ,

2003, as the same may be amended from time to time (the “Trust Agreement”),

including the designation of the terms of Capital Securities as set forth

therein.  The Holder is entitled to the

benefits of the Capital Securities Guarantee Agreement entered into by

Community First Bankshares, Inc., a Delaware corporation, and Wilmington Trust

Company, as guarantee trustee, dated as of March 4, 2003, as the same may be

amended from time to time, (the “Guaranty”), to the extent provided

therein.  The Trust will furnish a copy

of the Trust Agreement and the Guaranty to the Holder without charge upon

written request to the Trust at its principal place of business or registered

office.  Upon receipt of this

certificate, the Holder is bound by the Trust Agreement and is entitled to the

benefits thereunder.




 




IN WITNESS WHEREOF, one of the Administrative Trustees

of the Trust has executed this certificate this

          day of

                 ,

2003.




 




	

   


  	

  CFB CAPITAL IV


  
	

   


  	

   


  
	

   


  	

  By


  	

   


  	

   


  
	

   


  	

  Name:  Mark

  A. Anderson


  
	

   


  	

  Title: 

  Administrative Trustee


  





 




E-2