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CFB Capital VI  




 
 

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                        ,
200             





 
 
 

TABLE OF CONTENTS    
    



	 
	 	Page

	ARTICLE I.—DEFINED TERMS	 	1
	 	SECTION 101. DEFINITIONS	 	1
	

ARTICLE II.—ESTABLISHMENT OF THE TRUST	
 	

8
	 	SECTION 201. NAME	 	8
	 	SECTION 202. OFFICE OF THE DELAWARE TRUSTEE; PRINCIPAL PLACE OF BUSINESS	 	8
	 	SECTION 203. INITIAL CONTRIBUTION OF TRUST PROPERTY; ORGANIZATIONAL EXPENSES	 	8
	 	SECTION 204. ISSUANCE OF THE CAPITAL SECURITIES	 	8
	 	SECTION 205. ISSUANCE OF THE COMMON SECURITIES; SUBSCRIPTION AND PURCHASE OF JUNIOR SUBORDINATED DEBENTURES	 	8
	 	SECTION 206. DECLARATION OF TRUST	 	9
	 	SECTION 207. AUTHORIZATION TO ENTER INTO CERTAIN TRANSACTIONS	 	9
	 	SECTION 208. ASSETS OF TRUST	 	11
	 	SECTION 209. TITLE TO TRUST PROPERTY	 	12
	

ARTICLE III.—PAYMENT ACCOUNT	
 	

12
	 	SECTION 301. PAYMENT ACCOUNT	 	12
	

ARTICLE IV.—DISTRIBUTIONS; REDEMPTION	
 	

12
	 	SECTION 401. DISTRIBUTIONS	 	12
	 	SECTION 402. REDEMPTION	 	13
	 	SECTION 403. SUBORDINATION OF COMMON SECURITIES	 	14
	 	SECTION 404. PAYMENT PROCEDURES	 	15
	 	SECTION 405. TAX RETURNS AND REPORTS	 	15
	 	SECTION 406. PAYMENT OF TAXES, DUTIES, ETC. OF THE TRUST	 	15
	 	SECTION 407. PAYMENTS UNDER INDENTURE	 	15
	

ARTICLE V.—TRUST SECURITIES CERTIFICATES	
 	

15
	 	SECTION 501. INITIAL OWNERSHIP	 	15
	 	SECTION 502. THE TRUST SECURITIES CERTIFICATES	 	15
	 	SECTION 503. EXECUTION AND DELIVERY OF TRUST SECURITIES CERTIFICATES	 	16
	 	SECTION 504. REGISTRATION OF TRANSFER AND EXCHANGE OF CAPITAL SECURITIES CERTIFICATES	 	16
	 	SECTION 505. MUTILATED, DESTROYED, LOST OR STOLEN TRUST SECURITIES CERTIFICATES	 	17
	 	SECTION 506. PERSONS DEEMED SECURITYHOLDERS	 	17
	 	SECTION 507. ACCESS TO LIST OF SECURITYHOLDERS' NAMES AND ADDRESSES	 	17
	 	SECTION 508. MAINTENANCE OF OFFICE OR AGENCY	 	18
	 	SECTION 509. APPOINTMENT OF PAYING AGENT	 	18
	 	SECTION 510. OWNERSHIP OF COMMON SECURITIES BY DEPOSITOR	 	18
	 	SECTION 511. BOOK-ENTRY CAPITAL SECURITIES CERTIFICATES; COMMON SECURITIES CERTIFICATE	 	19
	 	SECTION 512. NOTICES TO CLEARING AGENCY	 	19
	 	SECTION 513. DEFINITIVE CAPITAL SECURITIES CERTIFICATES	 	19
	 	SECTION 514. RIGHTS OF SECURITYHOLDERS	 	20
	 	 	 





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ARTICLE VI.—ACTS OF SECURITYHOLDERS; MEETINGS; VOTING	
 	

21
	 	SECTION 601. LIMITATIONS ON VOTING RIGHTS	 	21
	 	SECTION 602. NOTICE OF MEETINGS	 	21
	 	SECTION 603. MEETINGS OF HOLDERS OF CAPITAL SECURITIES	 	22
	 	SECTION 604. VOTING RIGHTS	 	22
	 	SECTION 605. PROXIES, ETC.	 	22
	 	SECTION 606. SECURITYHOLDER ACTION BY WRITTEN CONSENT	 	22
	 	SECTION 607. RECORD DATE FOR VOTING AND OTHER PURPOSES	 	22
	 	SECTION 608. ACTS OF SECURITYHOLDERS	 	23
	 	SECTION 609. INSPECTION OF RECORDS	 	23
	

ARTICLE VII.—REPRESENTATIONS AND WARRANTIES	
 	

23
	 	SECTION 701. REPRESENTATIONS AND WARRANTIES OF THE BANK AND THE PROPERTY TRUSTEE	 	23
	 	SECTION 702. REPRESENTATIONS AND WARRANTIES OF THE DELAWARE BANK AND THE DELAWARE TRUSTEE	 	24
	 	SECTION 703. REPRESENTATIONS AND WARRANTIES OF DEPOSITOR	 	25
	

ARTICLE VIII.—THE TRUSTEES	
 	

26
	 	SECTION 801. CERTAIN DUTIES AND RESPONSIBILITIES	 	26
	 	SECTION 802. CERTAIN NOTICES	 	27
	 	SECTION 803. CERTAIN RIGHTS OF PROPERTY TRUSTEE	 	27
	 	SECTION 804. NOT RESPONSIBLE FOR RECITALS OR ISSUANCE OF SECURITIES	 	29
	 	SECTION 805. MAY HOLD SECURITIES	 	29
	 	SECTION 806. COMPENSATION; INDEMNITY; FEES	 	29
	 	SECTION 807. CORPORATE PROPERTY TRUSTEE REQUIRED; ELIGIBILITY OF TRUSTEES	 	30
	 	SECTION 808. CONFLICTING INTERESTS	 	30
	 	SECTION 809. CO-TRUSTEES AND SEPARATE TRUSTEE	 	30
	 	SECTION 810. RESIGNATION AND REMOVAL; APPOINTMENT OF SUCCESSOR	 	31
	 	SECTION 811. ACCEPTANCE OF APPOINTMENT BY SUCCESSOR	 	32
	 	SECTION 812. MERGER, CONVERSION, CONSOLIDATION OR SUCCESSION TO BUSINESS	 	33
	 	SECTION 813. PREFERENTIAL COLLECTION OF CLAIMS AGAINST DEPOSITOR OR TRUST	 	33
	 	SECTION 814. REPORTS BY PROPERTY TRUSTEE	 	33
	 	SECTION 815. REPORTS TO THE PROPERTY TRUSTEE	 	33
	 	SECTION 816. EVIDENCE OF COMPLIANCE WITH CONDITIONS PRECEDENT	 	34
	 	SECTION 817. NUMBER OF TRUSTEES	 	34
	 	SECTION 818. DELEGATION OF POWER	 	34
	 	SECTION 819. VOTING	 	34
	

ARTICLE IX.—DISSOLUTION, TERMINATION, LIQUIDATION AND MERGER	
 	

34
	 	SECTION 901. DISSOLUTION, TERMINATION UPON EXPIRATION DATE	 	34
	 	SECTION 902. EARLY TERMINATION	 	35
	 	SECTION 903. TERMINATION	 	35
	 	SECTION 904. LIQUIDATION	 	35
	 	SECTION 905. MERGERS, CONSOLIDATIONS, AMALGAMATIONS OR REPLACEMENTS OF THE TRUST	 	36
	

ARTICLE X.—MISCELLANEOUS PROVISIONS	
 	

37
	 	SECTION 1001. LIMITATION OF RIGHTS OF SECURITYHOLDERS	 	37
	 	 	 



ii





 

	 	SECTION 1002. AMENDMENT	 	37
	 	SECTION 1003. SEPARABILITY	 	38
	 	SECTION 1004. GOVERNING LAW	 	38
	 	SECTION 1005. PAYMENTS DUE ON NON-BUSINESS DAY	 	38
	 	SECTION 1006. SUCCESSORS	 	39
	 	SECTION 1007. HEADINGS	 	39
	 	SECTION 1008. REPORTS, NOTICES AND DEMANDS	 	39
	 	SECTION 1009. AGREEMENT NOT TO PETITION	 	39
	 	SECTION 1010. TRUST INDENTURE ACT; CONFLICT WITH TRUST INDENTURE ACT	 	40
	 	SECTION 1011. ACCEPTANCE OF TERMS OF TRUST AGREEMENT, GUARANTEE AND INDENTURE	 	40





	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)	 	7
	310(a)(2)	 	7
	310(a)(3)	 	7
	310(a)(4)	 	7(a)(ii)
	310(b)	 	8
	311(a)	 	3
	311(b)	 	3
	312(a)	 	7
	312(b)	 	7
	312(c)	 	7
	313(a)	 	4(a)
	313(a)(4)	 	4(b)
	313(b)	 	4(b)
	313(c)	 	8
	313(d)	 	4(c)
	314(a)	 	5
	314(b)	 	Not Applicable
	314(c)(1)	 	6
	314(c)(2)	 	6
	314(c)(3)	 	Not Applicable
	314(d)	 	Not Applicable
	314(e)	 	1, 816
	315(a)	 	1(a), 803(a)
	315(b)	 	2, 108
	315(c)	 	1(a)
	315(d)	 	1, 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)	 	7
	317(a)(1)	 	Not Applicable
	317(a)(2)	 	Not Applicable
	317(b)	 	9
	318(a)	 	10




iv







   
        AMENDED AND RESTATED TRUST AGREEMENT, dated as of                        ,
200    , 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)                         , an individual,
                        , an individual,
and                        , 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                        ,
                        and                 
       , 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                        , 200    (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
                        , 200    , 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: 


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. 


1





 

        "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                        ,
                        ,
and                        , 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. 


        "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 


2





 



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 "            % 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. 



        "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. 


        "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 


3





 



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 


        (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. 


4





 



        "Holder"
means a Securityholder. 


        "Indenture"
means the Subordinated Indenture, dated as of            . 200    , 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 $                        aggregate principal amount of the
Depositor's            % 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
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. 



5





 





        "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: 



        (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. 


6





 

        "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. 



        "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. 


7







   
        "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                        , 200    , 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 VI," 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. 


        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
$                        
against receipt of the aggregate purchase price of such Capital Securities of $                        , 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
$                        
against 


8





 



delivery
by the Depositor of $                        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
$                        , 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
$                        . 


        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 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; 




9





 





        (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 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); 


        (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 


10





 

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; 


        (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. 


11





 



        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. 


        (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            . 200    , and, except during any Extension Period with respect to the Junior Subordinated Debentures, shall be payable
quarterly in
arrears on the 15th day of                        ,
                        ,
                        ,
and                        in each year, commencing            15,
200    . 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            % 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 actual number of days elapsed. 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 


12





 



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. 


        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 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 


13





 



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 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 


14





 



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
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. 


15





 



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 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. 


16





 



        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. 


        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. 


17







   
        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 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". 


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        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. 


        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 


19





 



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 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. 


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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 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. 


21





 



        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. 



        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 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. 


22





 



        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. 


        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 


23





 



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; 


        (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; 



24





 

        (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 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 



25





 




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 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; 



26





 




        (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 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 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 



27





 




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
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 



28





 




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); 




        (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. 


29







   
        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. 


        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. 


30





 



        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 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 


31





 



the
Holders of the Capital Securities have the right to vote to appoint, remove or replace the Administrative Trustees. 


        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, 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 


32





 



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: 



        (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 


33





 



(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. 


        (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"). 


34





 



        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, 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 prior to the 


35





 

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 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 


36





 



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. 


        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. 


37







   
        (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. 


        (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. 


38





 



        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. 


        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 VI." 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. 


39





 



        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 


40





 



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:	

 
	 	 	 	

	 	 	Name:	 
	 	 	 	

	 	 	Title:	 
	 	 	 	President
	

 	
 	

WILMINGTON TRUST COMPANY,

as Property Trustee
	

 	
 	

By:	

 
	 	 	 	

	 	 	Name:	 
	 	 	 	

	 	 	Title:	 
	 	 	 	

	

 	
 	

WILMINGTON TRUST COMPANY,

as Delaware Trustee
	

 	
 	

By:	

 
	 	 	 	

	 	 	Name:	 
	 	 	 	

	 	 	Title:	 
	 	 	 	






	 	 	

	 	 	 	, As Administrative Trustee
	 	 	
	 
	

 	
 	


	 	 	 	, As Administrative Trustee
	 	 	
	 
	

 	
 	


	 	 	 	, As Administrative Trustee
	 	 	
	 




41






  



 
 

Exhibit A    
    


CERTIFICATE OF TRUST

OF

CFB CAPITAL VI  


        This Certificate of Trust of CFB CAPITAL VI (the "Trust"),
dated                        , 200    , is being duly executed and filed by Wilmington Trust Company,
a Delaware banking corporation, and                        ,
                        ,
and                        , each an individual, as trustees, to form a statutory trust under the Delaware Statutory Trust
Act (12
Del. C. Section 3801 et seq.) (the "Act"). 


	1.
	NAME.
The name of the statutory trust formed hereby is CFB Capital VI.



	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:	 





	 	 	

	 	 	 	, 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 VI

            Common Securities

(liquidation amount $25 per Common Security) 


CFB
Capital VI, 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 VI            %
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            . 200    , 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    day
of            ,
200    . 



	 	 	CFB CAPITAL VI
	

 	
 	
By:	

    

	 	 	    
Administrative Trustee
 




C-1






  



 
 

Exhibit D    
    


AGREEMENT AS TO EXPENSES AND LIABILITIES  


AGREEMENT
dated as of            . 200    , between Community First Bankshares, Inc., a Delaware corporation ("CFB"), and CFB Capital VI, a Delaware statutory trust (the
"Trust"). 


WHEREAS,
the Trust intends to issue its Common Securities (the "Common Securities") to, and receive            % Junior Subordinated Debentures (the "Junior Subordinated Debentures") from, CFB and
to issue and sell            % 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            . 200    , 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 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. 


D-1





 



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. 


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 


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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 VI

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:            , 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). 


THIS
AGREEMENT is executed as of the day and year first above written. 



	 	 	COMMUNITY FIRST BANKSHARES, INC.
	

 	
 	

By:	

    

	 	 	Name:	    

	 	 	Title:	Chief Financial Officer
	

 	
 	

CFB CAPITAL VI
	

 	
 	

By:	

    

	 	 	Name:	    

	 	 	Title:	Administrative Trustee




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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 VI 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 VI 


      %
Cumulative Capital Securities

(liquidation amount $25 per Capital Security) 


CFB
CAPITAL VI, 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 and Restated Trust Agreement of the Trust dated as
of                        , 200    , 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            .
200    , 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. 


E-1





 



IN
WITNESS WHEREOF, one of the Administrative Trustees of the Trust has executed this certificate this            day
of                        , 200    . 



	 	 	CFB CAPITAL VI
	

 	
 	

By:	

    

	 	 	Name:	    

	 	 	Title:	Administrative Trustee




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QuickLinks


AMENDED AND RESTATED TRUST AGREEMENT

TABLE OF CONTENTS

CROSS-REFERENCE TABLE



Exhibit A




Exhibit C




Exhibit D




Exhibit E