Amended and Restated Declaration of Trust


   Exhibit 4.4
   
 Amended and Restated Declaration of Trust
 First Midwest
Capital Trust I
 November 18, 2003
 
  
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  Table of Contents
  SectionHeadingPage
  Article IInterpretation and Definitions1
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Section 1.1.Definitions1
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  Article IITrust Indenture Act8
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 Section 2.1.Trust Indenture Act Application8
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 Section 2.2.Lists of Holders of Securities9
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 Section 2.3.Reports by the Property Trustee9
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 Section 2.4.Periodic Reports to Property Trustee9
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 Section 2.5.Evidence of Compliance with Conditions Precedent9
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 Section 2.6.Events of Default; Waiver10
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 Section 2.7.Event of Default; Notice11
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  Article IIIOrganization12
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 Section 3.1.Name12
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 Section 3.2.Office12
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 Section 3.3.Purpose12
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 Section 3.4.Authority13
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 Section 3.5.Title to Property of the Trust13
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 Section 3.6.Powers and Duties of the Administrative Trustees13
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 Section 3.7.Prohibition of Actions by the Trust and the Trustees16
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 Section 3.8.Powers and Duties of the Property Trustee17
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 Section 3.9.Certain Duties and Responsibilities of the Property Trustee19
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 Section 3.10.Certain Rights of Property Trustee21
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 Section 3.11.Delaware Trustee23
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 Section 3.12.Execution of Documents23
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 Section 3.13.Not Responsible for Recitals or Issuance of Securities23
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 Section 3.14.Duration of Trust23
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 Section 3.15.Mergers24
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  Article IVSponsor25
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 Section 4.1.Sponsor's Purchase of Common Securities25
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 Section 4.2.Responsibilities of the Sponsor25
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 Section 4.3.Right to Proceed26
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  Article VTrustees26
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 Section 5.1.Number of Trustees; Appointment of Co-Trustee26
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 Section 5.2.Delaware Trustee27
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 Section 5.3.Property Trustee; Eligibility27
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 Section 5.4.Certain Qualifications of Administrative Trustees and Delaware Trustee Generally28
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Section 5.5.Administrative Trustees28
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 Section 5.6.Delaware Trustee29
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 Section 5.7.Appointment, Removal and Resignation of Trustees29
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 Section 5.8.Vacancies Among Trustees30
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 Section 5.9.Effect of Vacancies30
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 Section 5.10.Meetings30
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 Section 5.11.Delegation of Power31
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 Section 5.12.Merger, Conversion, Consolidation or Succession to Business31
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  Article VIDistributions32
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 Section 6.1.Distributions32
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  Article VIIIssuance of Securities32
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 Section 7.1.General Provisions Regarding Securities32
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 Section 7.2.Execution and Authentication33
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 Section 7.3.Form and Dating33
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 Section 7.4.Registrar, Paying Agent and Exchange Agent35
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 Section 7.5.Paying Agent to Hold Money in Trust35
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 Section 7.6.Replacement Securities36
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 Section 7.7.Outstanding Capital Securities36
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 Section 7.8.Capital Securities in Treasury36
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 Section 7.9.Temporary Securities36
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 Section 7.10.Cancellation37
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 Section 7.11.CUSIP Numbers37
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  Article VIIITermination of Trust38
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 Section 8.1.Termination of Trust38
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  Article IXTransfer of Interests39
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 Section 9.1.Transfer of Securities39
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 Section 9.2.Transfer Procedures and Restrictions39
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 Section 9.3.Book Entry Interests48
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 Section 9.4.Notices to Clearing Agency48
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 Section 9.5.Appointment of Successor Clearing Agency49
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  Article XLimitation of Liability of Holders of Securities, Trustees or Others49
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 Section 10.1.Liability49
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 Section 10.2.Exculpation49
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 Section 10.3.Fiduciary Duty50
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 Section 10.4.Indemnification50
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 Section 10.5.Outside Businesses53
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 Section 10.6.Compensation; Fees53
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Article XIAccounting54
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 Section 11.1.Fiscal Year54
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 Section 11.2.Certain Accounting Matters54
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 Section 11.3.Banking54
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 Section 11.4.Withholding55
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  Article XIIAmendments and Meetings55
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 Section 12.1.Amendments55
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 Section 12.2.Meetings of the Holders; Action by Written Consent57
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  Article XIIIRepresentations of Property Trustee and Delaware Trustee58
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 Section 13.1.Representations and Warranties of Property Trustee58
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 Section 13.2.Representations and Warranties of Delaware Trustee59
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  Article XIVRegistration Rights60
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 Section 14.1.Registration Rights Agreement60
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  Article XVMiscellaneous60
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 Section 15.1.Notices60
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 Section 15.2.Governing Law61
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 Section 15.3.Intention of the Parties61
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 Section 15.4.Headings61
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 Section 15.5.Successors and Assigns61
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 Section 15.6.Partial Enforceability62
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 Section 15.7.Counterparts62
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        Signature Page63
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  Amended and Restated Declaration of Trust of
 First Midwest Capital Trust I
 
November 18, 2003
 Amended and Restated Declaration of Trust ("Declaration"), dated and effective as of November 18, 2003, by the Trustees (as defined herein), the Sponsor (as defined herein) and by the
holders, from time to time, of undivided beneficial interests in the Trust to be issued pursuant to this Declaration.
  Witnesseth:
  Whereas, certain of the Trustees and the Sponsor established
First Midwest Capital Trust I (the "Trust"), a trust created under the Delaware Statutory Trust Act pursuant to a Declaration of Trust dated as of November 6, 2003 (the "Original Declaration"), and a Certificate of Trust filed with the
Secretary of State of the State of Delaware on November 6, 2003, for the sole purpose of issuing and selling certain securities representing undivided beneficial interests in the assets of the Trust and investing the proceeds thereof in certain
Debentures of the Debenture Issuer (each as hereinafter defined);
 Whereas, as of the date hereof, no interests in the Trust have been issued;
 Whereas, all of the Trustees and the Sponsor, by this
Declaration, amend and restate each and every term and provision of the Original Declaration; and
 Now, Therefore, it being the intention of the parties hereto to set up the Trust as a statutory trust under the Statutory Trust
Act and that this Declaration constitute the governing instrument of such statutory trust, the Trustees declare that all assets contributed to the Trust will be held in trust for the benefit of the holders, from time to time, of the securities
representing undivided beneficial interests in the assets of the Trust issued hereunder, subject to the provisions of this Declaration.
  Article I
 
 Interpretation and Definitions
  Section 1.1.Definitions. Unless the context otherwise requires:
 1.capitalized terms used in this Declaration but not defined in the preamble above have the respective meanings
assigned to them in this Section 1.1;
 2.a term defined anywhere in this Declaration has the same meaning throughout;
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 3.all references to "the Declaration" or "this Declaration" are to this Declaration as modified, supplemented or amended from time to time;
 4.all references in this Declaration to Articles and
Sections and Annexes and Exhibits are to Articles and Sections of and Annexes and Exhibits to this Declaration unless otherwise specified;
 5.a term defined in the Trust Indenture Act has the same meaning when used in
this Declaration unless otherwise defined in this Declaration or unless the context otherwise requires; and
 6.a reference to the singular includes the plural and vice versa.
 "Administrative
Trustee" has the meaning set forth in Section 5.1.
   "Affiliate" has the same meaning as given to that term in Rule 405 under the Securities Act or any successor rule thereunder.
 "Agent" means any Paying Agent, Registrar or Exchange Agent.
 "Authorized Officer" of a Person means any other Person that is authorized to legally bind such Person.
 "Book
Entry Interest" means a beneficial interest in a Global Capital Security registered in the name of a Clearing Agency or its nominee, ownership and transfers of which shall be maintained and made through book entries by a Clearing Agency as
described in Section 9.3.
 "Business Day" means any day other than a Saturday or a Sunday or a day on which banking institutions in the City of New York are authorized or required by law, executive order or regulation to
close or a day on which the Corporate Trust Office of the Property Trustee or the Corporate Trust Office of the Debenture Trustee is closed for business.
 "Capital Security Beneficial Owner" means, with respect to a Book
Entry Interest, a Person who is the beneficial owner of such Book Entry Interest, as reflected on the books of the Clearing Agency, or on the books of a Person maintaining an account with such Clearing Agency (directly as a Clearing Agency
Participant or as an indirect participant, in each case in accordance with the rules of such Clearing Agency).
 "Capital Securities" means, collectively, the Series A Capital Securities and the Series B Capital
Securities.
 "Capital Securities Guarantee" means, collectively, the Series A Capital Securities Guarantee and the Series B Capital Securities Guarantee, as amended from time to time.
 "Clearing
Agency" means an organization registered as a "Clearing Agency" pursuant to Section 17A of the Exchange Act that is acting as depositary for the Capital Securities and in
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 whose name or in the name of a nominee of that organization shall be registered a Global Capital Security and which shall undertake to effect book entry transfers and pledges of the Capital Securities.
 "Clearing Agency Participant" means a broker, dealer, bank, other financial institution or other Person for whom from time to time the Clearing Agency effects book entry transfers and pledges of securities deposited with the
Clearing Agency.
 "Closing Time" means the "Closing Time" under the Purchase Agreement.
 "Code" means the Internal Revenue Code of 1986, as amended from time to time, or any successor
legislation.
 "Commission" means the United States Securities and Exchange Commission as from time to time constituted, or if any time after the execution of this Declaration such Commission is not existing and
performing the duties now assigned to it under applicable Federal securities laws, then the body performing such duties at such time.
 "Common Securities" has the meaning set forth in Section 7.1(a).
 "Corporate Trust Office" means the office of the Property Trustee at which the corporate trust business of the Property Trustee shall, at any particular time, be principally administered, which office at the date of execution
of this Declaration is located at Rodney Square North, 1100 North Market Street, Wilmington, Delaware 19890-0001, Attention: Corporate Trust Administration.
 "Covered Person" means: (a) any officer, director,
shareholder, partner, member, representative, employee or agent of (i) the Trust or (ii) the Trust's Affiliates; and (b) any Holder of Securities.
 "Debenture Issuer" means First Midwest Bancorp, Inc., a Delaware
corporation, or any successor entity resulting from any consolidation, amalgamation, merger or other business combination, in its capacity as issuer of the Debentures under the Indenture.
 "Debenture Trustee" means
Wilmington Trust Company, a banking corporation organized under the laws of the State of Delaware and any successor thereto, as trustee under the Indenture until a successor is appointed thereunder, and thereafter means such successor trustee.

"Debentures" means, collectively, the Series A Debentures and the Series B Debentures.
 "Default" means an event, act or condition that with notice or lapse of time, or both, would constitute an
Event of Default.
 "Definitive Capital Securities" has the meaning set forth in Section 7.3(c).
 "Delaware Trustee" has the meaning set forth in Section 5.2.
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 "Direct Action" has the meaning set forth in Section 3.8(e).
 "Distribution" means a distribution payable to Holders in accordance with Section 6.1.
 "DTC" means The Depository Trust Company, the initial Clearing Agency.
 "Event of Default" in respect of the Securities means an Event of Default (as defined in the Indenture) that has occurred and
is continuing in respect of the Debentures.
 "Exchange Act" means the Securities Exchange Act of 1934, as amended from time to time, or any successor legislation.
 "Exchange Agent" has the
meaning set forth in Section 7.4.
 "Exchange Offer" means the offer that may be made pursuant to the Registration Rights Agreement (i) by the Trust to exchange Series B Capital Securities for Series A Capital Securities
and (ii) by the Debenture Issuer to exchange Series B Debentures for Series A Debentures and the Series B Capital Securities Guarantee for the Series A Capital Securities Guarantee.
 "Expense Agreement" means the
Agreement as to Expenses and Liabilities dated as of November 18, 2003, by and between the Debenture Issuer and the Trust, as amended from time to time.
 "Federal Reserve Board" means the Board of Governors of the
Federal Reserve System.
 "Fiduciary Indemnified Person" has the meaning set forth in Section 10.4(b).
 "Global Capital Securities" has the meaning set forth in Section 7.3(a).
 "Holder" means a Person in whose name a Security is registered, such Person being a beneficial owner within the meaning of the Statutory Trust Act.
 "Indemnified Person" means a Trust Indemnified
Person or a Fiduciary Indemnified Person.
 "Indenture" means the Indenture dated as of November 18, 2003, between the Debenture Issuer and Wilmington Trust Company, as Trustee, as amended from time to time.
 "Investment Company" means an investment company as defined in the Investment Company Act.
 "Investment Company Act" means the Investment Company Act of 1940, as amended from time to time, or any
successor legislation.
 "Legal Action" has the meaning set forth in Section 3.6(g).
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 "Like Amount" has the meaning set forth in Section 3
of Annex I hereto.
 "List of Holders" has the meaning set forth in Section 2.2.
 "Majority in liquidation amount" means, with respect to the Trust Securities, except as provided in the terms
of the Capital Securities or by the Trust Indenture Act, Holder(s) of outstanding Trust Securities voting together as a single class or, as the context may require, Holders of outstanding Capital Securities or Holders of outstanding Common
Securities voting separately as a class, who are the record owners of more than 50% of the aggregate liquidation amount (including the stated amount that would be paid on redemption, liquidation or otherwise, plus accrued and unpaid Distributions to
the date upon which the voting percentages are determined) of all outstanding Securities of the relevant class.
 "Offering Memorandum" has the meaning set forth in Section 3.6(b)(i).
 "Officers'
Certificate" means, with respect to any Person, a certificate signed by any of the Chairman, the Chief Executive Officer, the President, a Vice President, the Chief Financial Officer, the Secretary or an Assistant Secretary of such Person. Any
Officers' Certificate delivered with respect to compliance with a condition or covenant provided for in this Declaration shall include:
 (a)a statement that the 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 the officer in rendering the Officers'
Certificate;
 (c)a statement that 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 such officer, such condition or covenant has been complied with.
   "Opinion of
Counsel" shall mean a written opinion of counsel, who may be an employee of the Sponsor, and who shall be reasonably acceptable to the Property Trustee.
 "Paying Agent" has the meaning specified in Section 7.4.

"Person" means a legal person, including any individual, corporation, estate, partnership, joint venture, association, joint stock company, limited liability company, trust, unincorporated association, or government or any
agency or political subdivision thereof, or any other entity of whatever nature.
 "PORTAL Market" means the Private Offerings, Resales and Trading through Automated Linkages Market.
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 "Property Trustee" has the meaning set forth in Section 5.3(a).
 "Property Trustee Account" has the meaning set forth in Section 3.8(c).
 "Purchase Agreement" means the Purchase Agreement for the initial offering and sale of Capital Securities in the form of Exhibit B.
 "QIBs" means qualified institutional buyers as defined in Rule
144A.
 "Quorum" means a majority of the Administrative Trustees or, if there are only two Administrative Trustees, both of them.
 "Registrar" has the meaning set forth in Section 7.4.
 "Registration Rights Agreement" means the Registration Rights Agreement dated as of November 18, 2003, by and among the Trust, the Debenture Issuer and the Initial Purchasers named therein, as amended from time to time.
 "Registration Statement" has the meaning set forth in the Registration Rights Agreement.
 "Regulation S" means Regulation S under the Securities Act, as such regulation may be amended from time to
time, or any similar rule or regulation hereafter adopted by the Commission.
 "Regulation S Global Capital Security" has the meaning set forth in Section 7.3(a).
 "Related Party" means, with
respect to the Sponsor, any direct or indirect wholly owned subsidiary of the Sponsor or any other Person that owns, directly or indirectly, 100% of the outstanding voting securities of the Sponsor.
 "Responsible
Officer" means, when used with respect to the Property Trustee, any officer of the Property Trustee with direct responsibility for the administration of this Declaration and also means, with respect to a particular corporate trust matter, any
other officer to whom such matter is referred because of that officer's knowledge of and familiarity with the particular subject.
 "Restricted Capital Security" means a Capital Security required by Section 9.2 to contain
a Restricted Securities Legend.
 "Restricted Definitive Capital Securities" has the meaning set forth in Section 7.3(c).
 "Restricted Securities Legend" has the meaning set forth in Section
9.2(h).
 "Rule 3a-5" means Rule 3a-5 under the Investment Company Act, or any successor rule or regulation.
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 "Rule 144" means Rule 144
under the Securities Act, as such rule may be amended from time to time, or any similar rule or regulation hereafter adopted by the Commission.
 "Rule 144A" means Rule 144A under the Securities Act, as such rule may be
amended from time to time, or any similar rule or regulation hereafter adopted by the Commission.
 "Rule 144A Global Capital Security" has the meaning set forth in Section 7.3(a).
 "Securities" or "Trust Securities" means the Common Securities and the Capital Securities.
 "Securities Act" means the Securities Act of 1933, as amended from time to time, or any successor
legislation.
 "Series A Capital Securities" has the meaning specified in Section 7.1(a).
 "Series B Capital Securities" has the meaning specified in Section 7.1(a).
 "Series A Capital Securities Guarantee" means the guarantee agreement dated as of November 18, 2003 of Sponsor in respect of the Series A Capital Securities, as amended from time to time.
 "Series B
Capital Securities Guarantee" means the guarantee agreement to be entered in connection with the Exchange Offer by the Sponsor in respect of the Series B Capital Securities, as amended from time to time.
 "Series A
Debentures" means the Series A 6.95% Junior Subordinated Deferrable Interest Debentures due December 1, 2033 of the Debenture Issuer issued pursuant to the Indenture.
 "Series B Debentures" means the Series B 6.95%
Junior Subordinated Deferrable Interest Debentures due December 1, 2033 of the Debenture Issuer issued pursuant to the Indenture.
 "Special Event" has the meaning set forth in Section 4(c) of Annex I hereto.
 "Sponsor" means First Midwest Bancorp, Inc., a Delaware corporation, or any successor entity resulting from any merger, consolidation, amalgamation or other business combination, in its capacity as sponsor of the Trust.
 "Statutory Trust Act" means Chapter 38 of Title 12 of the Delaware Code, 12 Del. Code Section 3801 et seq., as it may be amended from time to time, or any successor legislation.
 "Super
Majority" has the meaning set forth in Section 2.6(a)(ii).
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 "10% in liquidation amount" means, with respect to the Trust Securities, except as provided in the
terms of the Capital Securities or by the Trust Indenture Act, Holder(s) of outstanding Trust Securities voting together as a single class or, as the context may require, Holders of outstanding Capital Securities or Holders of outstanding Common
Securities voting separately as a class, who are the record owners of 10% or more of the aggregate liquidation amount (including the stated amount that would be paid on redemption, liquidation or otherwise, plus accrued and unpaid Distributions to
the date upon which the voting percentages are determined) of all outstanding Securities of the relevant class.
 "Treasury Regulations" means the income tax regulations, including temporary and proposed regulations,
promulgated under the Code by the United States Treasury, as such regulations may be amended from time to time (including corresponding provisions of succeeding regulations).
 "Trust Indemnified Person" means (a) any
Administrative Trustee; (b) any Affiliate of any Administrative Trustee; (c) any officers, directors, shareholders, members, partners, employees, representatives or agents of any Administrative Trustee; or (d) any officer, employee or agent of the
Trust or its Affiliates.
 "Trust Indenture Act" means the Trust Indenture Act of 1939, as amended from time to time, or any successor legislation.
 "Trustee" or "Trustees" means each
Person who has signed this Declaration as a trustee, so long as such Person shall continue in office in accordance with the terms hereof, and all other Persons who may from time to time be duly appointed, qualified and serving as Trustees in
accordance with the provisions hereof, and references herein to a Trustee or the Trustees shall refer to such Person or Persons solely in their capacity as trustees hereunder.
 "Unrestricted Global Capital Security" has
the meaning set forth in Section 9.2(b).
  Article II
 
 Trust Indenture Act
  Section 2.1.Trust Indenture Act Application. (a) This Declaration is subject to the provisions of
the Trust Indenture Act that are required to be part of this Declaration 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 and to the extent that any provision of this Declaration limits, qualifies or conflicts with the duties imposed by Section Section 310 to 317, inclusive, of the Trust
Indenture Act, such imposed duties shall control.
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 (d)The application of the Trust Indenture Act to this Declaration shall not affect the nature of the Securities
representing undivided beneficial interests in the assets of the Trust.
 Section 2.2.Lists of Holders of Securities. (a) If the Capital Securities are not in the form of a Global Capital Security in the name of
----Cede & Co. or other nominee of the Clearing Agency pursuant to Section 7.3(b) of this Declaration, each of the Sponsor and the Administrative Trustees on behalf of the Trust shall provide the Property Trustee (i) within 14 days after each
record date for payment of Distributions, a list, in such form as the Property Trustee may reasonably require, of the names and addresses of the Holders ("List of Holders") as of such record date, provided that neither the Sponsor nor
the Administrative Trustees on behalf of the Trust shall be obligated to provide such List of Holders at any time the List of Holders does not differ from the most recent List of Holders given to the Property Trustee by the Sponsor and the
Administrative Trustees on behalf of the Trust, and (ii) at any other time, within 30 days of receipt by the Trust of a written request for a List of Holders as of a date no more than 14 days before such List of Holders is given to the Property
Trustee. The Property Trustee shall preserve, in as current a form as is reasonably practicable, all information contained in Lists of Holders given to it or which it receives in the capacity as Registrar (if acting in such capacity), provided
that the Property Trustee may destroy any List of Holders previously given to it on receipt of a new List of Holders.
 (b)The Property Trustee shall comply with its obligations under Section Section 311(a), 311(b)
and 312(b) of the Trust Indenture Act.
 Section 2.3.Reports by the Property Trustee. Within 60 days after May 15 of each year, commencing May 15, 2004, the Property Trustee shall provide to the Holders of the
Capital Securities such reports as are required by Section 313(a) of the Trust Indenture Act, if any, in the form and in the manner provided by Section 313 of the Trust Indenture Act. The Property Trustee shall also comply with the other
requirements of Section 313 of the Trust Indenture Act.
 Section 2.4.Periodic Reports to Property Trustee. Each of the Sponsor and the Administrative Trustees on behalf of the Trust shall provide to the Property
Trustee such documents, reports and information as are required by Section 314 of the Trust Indenture Act, if any, and the compliance certificate required by Section 314 of the Trust Indenture Act in the form, in the manner and at the times required
by Section 314(a)(4) of the Trust Indenture Act, such compliance certificate to be delivered annually on or before 120 days after the end of each fiscal year of the Sponsor. Delivery of such documents, reports and information to the Property Trustee
is for informational purposes only and the Property Trustee's receipt of such shall not constitute constructive notice of any information contained therein or determinable from information contained therein, including the Sponsor's compliance with
any of its covenants hereunder (as to which the Property Trustee is entitled to rely exclusively on Officers' Certificates).
 Section 2.5.Evidence of Compliance with Conditions Precedent. Each of the Sponsor and
the Administrative Trustees on behalf of the Trust shall provide to the Property Trustee such evidence of compliance with any conditions precedent, if any, provided for in this Declaration that relate to any of the matters set forth in Section
314(c) of the Trust Indenture Act. Any certificate or 
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 opinion required to be given by an officer pursuant to Section 314(c)(1) of the Trust Indenture Act may be given in
the form of an Officers' Certificate.
 Section 2.6.Events of Default; Waiver. (a) The Holders of a Majority in liquidation amount of Capital Securities may, by vote, on behalf of the Holders of all of the Capital
Securities, waive any past Event of Default in respect of the Capital Securities and its consequences; provided that, if the underlying Event of Default under the Indenture:
 (i)is not waivable under
the Indenture, the Event of Default under the Declaration shall also not be waivable; or
 (ii)requires the consent or vote of greater than a majority in aggregate principal amount of the holders of the Debentures (a
"Super Majority") to be waived under the Indenture, the Event of Default under the Declaration may only be waived by the vote of the Holders of at least the proportion in aggregate liquidation amount of the Capital Securities that the
relevant Super Majority represents of the aggregate principal amount of the Debentures outstanding.
   The foregoing provisions of this Section 2.6(a) shall be in lieu of Section 316(a)(1)(B) of the Trust Indenture
Act and such Section 316(a)(1)(B) of the Trust Indenture Act is hereby expressly excluded from this Declaration and the Securities, as permitted by the Trust Indenture Act. Upon such waiver, any such default shall cease to exist, and any Event of
Default with respect to the Capital Securities arising therefrom shall be deemed to have been cured, for every purpose of this Declaration, but no such waiver shall extend to any subsequent or other default or an Event of Default with respect to the
Capital Securities or impair any right consequent thereon. Any waiver by the Holders of the Capital Securities of an Event of Default with respect to the Capital Securities shall also be deemed to constitute a waiver by the Holders of the Common
Securities of any such Event of Default with respect to the Common Securities for all purposes of this Declaration without any further act, vote, or consent of the Holders of the Common Securities.
 The Holders of a Majority in
liquidation amount of the Capital Securities shall have the right to direct the time, method and place of conducting any proceeding for any remedy available to the Property Trustee or to direct the exercise of any trust or power conferred upon the
Property Trustee, including the right to direct the Property Trustee to exercise the remedies available to it as holder of the Debentures, provided, however, that (subject to the provisions of Section 3.9) the Property Trustee shall have the
right to decline to follow any such direction if the Property Trustee shall determine that the action so directed would be unjustly prejudicial to the Holders not taking part in such direction or if the Property Trustee, being advised by counsel,
determines that the action or proceeding so directed may not lawfully be taken or if the Property Trustee, in good faith, by its board of directors or trustees, executive committee, or a trust committee of directors or trustees and/or Responsible
Officers, shall determine that the action or proceedings so directed would involve the Property Trustee in personal liability.
 (b)The Holders of a Majority in liquidation amount of the Common Securities may, by vote, on
behalf of the Holders of all of the Common Securities, waive any past Event of Default 14
  

 
 with respect to the Common Securities and its consequences, provided that, if the underlying Event
of Default under the Indenture:
 (i)is not waivable under the Indenture, except where the Holders of the Common Securities are deemed to have waived such Event of Default under the Declaration as provided
below in this Section 2.6(b), the Event of Default under the Declaration shall also not be waivable; or
 (ii)requires the consent or vote of a Super Majority to be waived, except where the Holders of the Common
Securities are deemed to have waived such Event of Default under the Declaration as provided below in this Section 2.6(b), the Event of Default under the Declaration may only be waived by the vote of the Holders of at least the proportion in
aggregate liquidation amount of the Common Securities that the relevant Super Majority represents of the aggregate principal amount of the Debentures outstanding;
   provided further, each Holder of Common
Securities will be deemed to have waived any such Event of Default and all Events of Default with respect to the Common Securities and its consequences if all Events of Default with respect to the Capital Securities have been cured, waived or
otherwise eliminated, and until such Events of Default have been so cured, waived or otherwise eliminated, the Property Trustee will be deemed to be acting solely on behalf of the Holders of the Capital Securities and only the Holders of the Capital
Securities will have the right to direct the Property Trustee in accordance with the terms of the Securities. The foregoing provisions of this Section 2.6(b) shall be in lieu of Section Section 316(a)(1)(A) and 316(a)(1)(B) of the Trust Indenture
Act and such Section Section 316(a)(1)(A) and 316(a)(1)(B) of the Trust Indenture Act are hereby expressly excluded from this Declaration and the Securities, as permitted by the Trust Indenture Act. Subject to the foregoing provisions of this
Section 2.6(b), upon such waiver, any such default shall cease to exist and any Event of Default with respect to the Common Securities arising therefrom shall be deemed to have been cured for every purpose of this Declaration, but no such waiver
shall extend to any subsequent or other default or Event of Default with respect to the Common Securities or impair any right consequent thereon.
 (c)A waiver of an Event of Default under the Indenture by the Property
Trustee, at the direction of the Holders of the Capital Securities, constitutes a waiver of the corresponding Event of Default under this Declaration. The foregoing provisions of this Section 2.6(c) shall be in lieu of Section 316(a)(1)(B) of the
Trust Indenture Act and such Section 316(a)(1)(B) of the Trust Indenture Act is hereby expressly excluded from this Declaration and the Securities, as permitted by the Trust Indenture Act.
 Section 2.7.Event of
Default; Notice. (a) The Property Trustee shall, within 90 days after the occurrence of an Event of Default, transmit by mail, first class postage prepaid, to the Holders of the Securities, notice of all Defaults with respect to the Securities
actually known to a Responsible Officer of the Property Trustee, unless such Defaults have been cured before the giving of such notice; provided that, except for a default in the payment of principal of or premium, if any, or interest on any
of the Debentures, the Property Trustee shall be protected in withholding such notice if and so long as the board of directors, the executive committee, or a 
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 trust
committee of directors and/or a Responsible Officer of the Property Trustee in good faith determines that the withholding of such notice is in the interests of the Holders of the Securities.
 (b)The Property Trustee
shall not be deemed to have knowledge of any Default except:
 (i)a Default under Sections 5.01(a), (b), (d) and (e) of the Indenture relating to the Debentures; or
 (ii)any
Default as to which the Property Trustee shall have received written notice from any of the Administrative Trustees or Sponsors or a Responsible Officer of the Property Trustee charged with the administration of the Declaration shall have obtained
actual knowledge of such Default.
   (c)Within 10 Business Days after the occurrence of any Event of Default actually known to the Property Trustee, the Property Trustee shall transmit notice of such Event
of Default to the Holders of the Capital Securities, the Administrative Trustees and the Sponsor, unless such Event of Default shall have been cured or waived. The Sponsor and the Administrative Trustees shall file annually with the Property
Trustee, in accordance with Section 2.4, a certification as to whether or not they are in compliance with all the conditions and covenants applicable to them under this Declaration.
  Article III
 
 Organization

 Section 3.1.Name. The Trust is named "First Midwest Capital Trust I" as such name may be modified from time to time by the Administrative Trustees following written notice to the Holders of Securities. The
Trust's activities may be conducted under the name of the Trust or any other name deemed advisable by the Administrative Trustees.
 Section 3.2.Office. The address of the principal executive office of the Trust
is c/o First Midwest Bancorp, Inc., 300 Park Boulevard, Suite 400, Itasca, Illinois 60143, Attention: Chief Financial Officer. On 10 Business Days written notice to the Property Trustee, the Delaware Trustee and the Holders of Securities, the
Administrative Trustees may designate another principal office.
 Section 3.3.Purpose. The exclusive purposes and functions of the Trust are (a) to issue and sell Securities, (b) use the proceeds from the sale of
the Securities to acquire the Debentures, and (c) except as otherwise limited herein, to engage in only those other activities necessary, advisable or incidental thereto. The Trust shall not borrow money, issue debt or reinvest proceeds derived from
investments, mortgage or pledge any of its assets, or otherwise undertake (or permit to be undertaken) any activity that would cause the Trust not to be classified for United States federal income tax purposes as a grantor trust.
 16
  

 
 Section 3.4.Authority. Subject to the limitations provided in this Declaration and to the specific duties of the Property Trustee, the Administrative Trustees
shall have exclusive and complete authority to carry out the purposes of the Trust. An action taken by the Administrative Trustees in accordance with their powers shall constitute the act of and serve to bind the Trust and an action taken by the
Property Trustee on behalf of the Trust in accordance with its powers shall constitute the act of and serve to bind the Trust. In dealing with the Trustees acting on behalf of the Trust, no Person shall be required to inquire into the authority of
the Trustees to bind the Trust. Persons dealing with the Trust are entitled to rely conclusively on the power and authority of the Trustees as set forth in this Declaration.
 Section 3.5.Title to Property of the
Trust. Except as provided in Section 3.8 with respect to the Debentures and the Property Trustee Account or as otherwise provided in this Declaration, legal title to all assets of the Trust shall be vested in the Trust. The Holders shall not
have legal title to any part of the assets of the Trust, but shall have an undivided beneficial interest in the assets of the Trust.
 Section 3.6.Powers and Duties of the Administrative Trustees. The
Administrative Trustees shall have the exclusive power, duty and authority to cause the Trust to engage in the following activities:
 (a)to issue and sell the Securities in accordance with this Declaration;
provided, however, that except, in the case of (i) and (iii), as contemplated in Section 7.1(a), (i) the Trust may issue no more than one series of Capital Securities and no more than one series of Common Securities, (ii) there shall be no
interests in the Trust other than the Securities, and (iii) the issuance of Securities shall be limited to a simultaneous issuance of both Capital Securities and Common Securities at any Closing Time,
 (b)in connection
with the issue and sale of the Capital Securities and the consummation of the Exchange Offer to:
 (i)prepare and execute, if necessary, an offering memorandum (the "Offering Memorandum") in
preliminary and final form prepared by the Sponsor, in relation to the offering and sale of Series A Capital Securities to QIBs and to institutional "accredited investors" (as defined in Rule 501(a)(1), (2), (3) or (7) under the Securities Act) and
outside the United States to non-U.S. persons in offshore transactions in reliance on Regulation S under the Securities Act, and to execute and file with the Commission, at such time as determined by the Sponsor, any Registration Statement,
including any amendments thereto, as contemplated by the Registration Rights Agreement;
 (ii)execute and file any documents prepared by the Sponsor, or take any acts as determined by the Sponsor to be necessary in order
to qualify or register all or part of the Capital Securities in any state in which the Sponsor has determined to qualify or register such Capital Securities for sale;
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 (iii)if directed by the Sponsor, execute and file an application, prepared by the Sponsor, to designate the Capital Securities for trading in the PORTAL Market;
 (iv)to execute and deliver letters, documents, or instruments with DTC and other Clearing Agencies relating to the Capital Securities;
 (v)if required, execute and file with the Commission a
registration statement on Form 8-A, including any amendments thereto, prepared by the Sponsor, relating to the registration of the Capital Securities under Section 12(b) of the Exchange Act; and
 (vi)execute and enter
into the Expense Agreement, the Registration Rights Agreement, the Debenture Subscription Agreement and the Common Securities Subscription Agreement and to take such actions as are required by the terms of such agreements;
   (c)to acquire the Series A Debentures with the proceeds of the sale of the Series A Capital Securities and the Common Securities and to exchange the Series A Debentures for a like principal amount of Series B Debentures,
pursuant to the Exchange Offer; provided, however, that the Administrative Trustees shall cause legal title to the Debentures to be held of record in the name of the Property Trustee for the benefit of the Holders;
 (d)to give the Sponsor and the Property Trustee prompt written notice of the occurrence of a Special Event;
 (e)to establish a record date with respect to all actions to be taken hereunder that
require a record date be established, including and with respect to, for the purposes of Section 316(c) of the Trust Indenture Act, Distributions, voting rights, redemptions and exchanges, and to issue relevant notices to the Holders of Capital
Securities and Holders of Common Securities as to such actions and applicable record dates;
 (f)to take all actions and perform such duties as may be required of the Administrative Trustees pursuant to the terms of the
Securities;
 (g)to bring or defend, pay, collect, compromise, arbitrate, resort to legal action, or otherwise adjust claims or demands of or against the Trust ("Legal Action"), unless pursuant to Section 3.8(e),
the Property Trustee has the exclusive power to bring such Legal Action;
 (h)to employ or otherwise engage employees and agents (who may be designated as officers with titles) and managers, contractors, advisors, and
consultants and pay reasonable compensation for such services;
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 (i)to cause the Trust to comply with the Trust's obligations under the
Trust Indenture Act;
 (j)to give the certificate required by Section 314(a)(4) of the Trust Indenture Act to the Property Trustee, which certificate may be executed by any Administrative Trustee;
 (k)to incur expenses that are necessary or incidental to carry out any of the purposes of the Trust;
 (l)to act as, or appoint another Person to act as, Registrar and Exchange Agent for the
Securities or to appoint a Paying Agent for the Securities as provided in Section 7.4 except for such time as such power to appoint a Paying Agent is vested in the Property Trustee;
 (m)to give prompt written notice to
the Property Trustee and to Holders of any notice received from the Debenture Issuer of its election to defer payments of interest on the Debentures by extending the interest payment period under the Indenture;
 (n)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;
 (o)to take any
action, not inconsistent with this Declaration or with applicable law, that the Administrative Trustees determine in their discretion to be necessary or desirable in carrying out the activities of the Trust as set out in this Section 3.6, including,
but not limited to:
 (i)causing the Trust not to be deemed to be an Investment Company required to be registered under the Investment Company Act;
 (ii)causing the Trust to be
classified for United States federal income tax purposes as a grantor trust; and
 (iii)cooperating with the Debenture Issuer to ensure that the Debentures will be treated as indebtedness of the Debenture Issuer for
United States federal income tax purposes.
   (p)to take all action necessary to consummate the Exchange Offer or otherwise cause the Capital Securities to be registered pursuant to an effective registration
statement in accordance with the provisions of the Registration Rights Agreement;
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 (q)to take all action necessary to cause all applicable
tax returns and tax information reports that are required to be filed with respect to the Trust to be duly prepared and filed by the Administrative Trustees, on behalf of the Trust; and
 (r)to execute all documents or
instruments, perform all duties and powers, and do all things for and on behalf of the Trust in all matters necessary or incidental to the foregoing.
   The Administrative Trustees must exercise the powers set forth
in this Section 3.6 in a manner that is consistent with the purposes and functions of the Trust set out in Section 3.3, and the Administrative Trustees shall not take any action that is inconsistent with the purposes and functions of the Trust set
forth in Section 3.3.
 Subject to this Section 3.6, the Administrative Trustees shall have none of the powers or the authority of the Property Trustee set forth in Section 3.8.
 Any expenses incurred by
the Administrative Trustees pursuant to this Section 3.6 shall be reimbursed by the Sponsor. The Administrative Trustees shall take all actions on behalf of the Trust that are not specifically required by this Declaration to be taken by any other
Trustee.
 Section 3.7.Prohibition of Actions by the Trust and the Trustees. (a) The Trust shall not, and none of the Trustees (including the Property Trustee) shall cause the Trust to, engage in any activity
other than as required or authorized by this Declaration. The Trust shall not, and none of the Trustees (including the Property Trustee) shall cause the Trust to:
 (i)invest any proceeds received by the
Trust from holding the Debentures, but shall distribute all such proceeds to Holders pursuant to the terms of this Declaration and of the Securities;
 (ii)acquire any assets other than as expressly provided herein;

(iii)possess Trust property for other than a Trust purpose;
 (iv)make any loans or incur any indebtedness other than loans represented by the Debentures;
 (v)possess any power or otherwise act in such a way as to vary the Trust assets or the terms of the Securities in any way whatsoever except as otherwise expressly provided herein;
 (vi)issue any
securities or other evidences of beneficial ownership of, or beneficial interest in, the Trust other than the Securities; or
 (vii)other than as provided in this Declaration or Section 5(b) of Annex I, (A) direct the
time, method and place of conducting any proceeding with respect to any remedy available to the Debenture Trustee, or exercising any trust or power conferred 
   20
  

 
 upon the Debenture Trustee with respect to the Debentures, (B) waive any past default that is waivable under the Indenture, (C) exercise any right to rescind or annul any declaration that the principal of all the Debentures shall be
due and payable, or (D) consent to any amendment, modification or termination of the Indenture or the Debentures where such consent shall be required unless the Trust shall have received an opinion of an independent tax counsel experienced in such
matters to the effect that such modification will not cause more than an insubstantial risk that for United States federal income tax purposes the Trust will not be classified as a grantor trust; provided, however, that where a consent under
the Indenture would require the consent of each holder of Debentures affected thereby, no consent shall be given by the Property Trustee without the prior approval of each Holder of the Capital Securities.
   Section 3.8.Powers and Duties of the Property Trustee. (a) The legal title to the Debentures shall be owned by and held of record in the name of the Property Trustee in trust for the benefit of the Holders. The right,
title and interest of the Property Trustee to the Debentures shall vest automatically in each Person who may hereafter be appointed as Property Trustee in accordance with Section 5.7. Such vesting and cessation of title shall be effective whether or
not conveyancing documents with regard to the Debentures have been executed and delivered.
 (b)The Property Trustee shall not transfer its right, title and interest in the Debentures to the Administrative Trustees or to
the Delaware Trustee (if the Property Trustee does not also act as Delaware Trustee).
 (c)The Property Trustee shall:
 (i)establish and maintain a segregated non-interest
bearing trust account (the "Property Trustee Account") in the name of and under the exclusive control of the Property Trustee on behalf of the Holders and, upon the receipt of payments of funds made in respect of the Debentures held by the
Property Trustee, deposit such funds into the Property Trustee Account and make payments to the Holders of the Capital Securities and Holders of the Common Securities from the Property Trustee Account in accordance with Section 6.1. Funds in the
Property Trustee Account shall be held uninvested until disbursed in accordance with this Declaration. The Property Trustee Account shall be an account that is maintained with a banking institution the rating on whose long-term unsecured
indebtedness is at least equal to the rating assigned to the Capital Securities by a "nationally recognized statistical rating organization," as that term is defined for purposes of Rule 436(g)(2) under the Securities Act;
 (ii)engage in such ministerial activities as shall be necessary or appropriate to effect the redemption of the Securities to the extent the Debentures are redeemed or mature; and
 (iii)upon
written notice of distribution issued by the Administrative Trustees in accordance with the terms of the Securities, engage in such ministerial activities as shall be necessary or appropriate to effect the distribution of the Debentures to Holders
of Securities upon the occurrence of certain events.
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 (d)The Property Trustee shall take all actions and perform such
duties as may be specifically required of the Property Trustee pursuant to the terms of the Securities.
 (e)Subject to Section 3.9(a), the Property Trustee shall take any Legal Action which arises out of or in
connection with (A) an Event of Default of which a Responsible Officer of the Property Trustee has actual knowledge or (B) the Property Trustee's duties and obligations under this Declaration or the Trust Indenture Act, and if such Property Trustee
shall have failed to take such Legal Action, the Holders of Capital Securities, to the fullest extent permitted by applicable law, may take such Legal Action, to the same extent as if such Holders of Capital Securities held an aggregate principal
amount of Debentures equal to the aggregate liquidation amount of such Capital Securities, without first proceeding against the Property Trustee or the Trust; provided however, that if an Event of Default has occurred and is continuing and
such event is attributable to the failure of the Debenture Issuer to pay the principal of or premium, if any, or interest on the Debentures on the date such principal, premium, if any, or interest is otherwise payable (or in the case of redemption,
on the redemption date), then a Holder of Capital Securities may directly institute a proceeding for enforcement of payment to such Holder of the principal of or premium, if any, or interest on the Debentures having a principal amount equal to the
aggregate liquidation amount of the Capital Securities of such Holder (a "Direct Action") on or after the respective due date specified in the Debentures. In connection with such Direct Action, the rights of the Holders of the Common
Securities will be subrogated to the rights of such Holder of Capital Securities to the extent of any payment made by the Debenture Issuer to such Holder of Capital Securities in such Direct Action. Except as provided in the preceding sentences, the
Holders of Capital Securities will not be able to exercise directly any other remedy available to the holders of the Debentures.
 (f)The Property Trustee shall not resign as a Trustee unless either:
 (i)the Trust has been completely liquidated and the proceeds of the liquidation distributed to the Holders pursuant to the terms of the Securities; or
 (ii)a successor Property
Trustee has been appointed and has accepted that appointment in accordance with Section 5.7 (a "Successor Property Trustee").
     (g)The Property Trustee shall have the legal power to
exercise all of the rights, powers and privileges of a holder of Debentures under the Indenture and, if an Event of Default actually known to a Responsible Officer of the Property Trustee occurs and is continuing, the Property Trustee shall, for the
benefit of Holders, enforce its rights as holder of the Debentures subject to the rights of the Holders pursuant to the terms of such Securities.
 (h)The Property Trustee shall be authorized to undertake any actions set
forth in Section 317(a) of the Trust Indenture Act.
 (i)For such time as the Property Trustee is the Paying Agent, the Property Trustee may authorize one or more Persons to act as additional Paying Agents and to pay
Distributions, redemption payments or liquidation payments on behalf of the Trust with respect to all Securities 
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 and any such Paying Agent shall comply with Section
317(b) of the Trust Indenture Act. Any such additional Paying Agent may be removed by the Property Trustee at any time the Property Trustee remains as Paying Agent and a successor Paying Agent or additional Paying Agents may be (but are not required
to be) appointed at any time by the Property Trustee while it is so acting as Paying Agent.
 (j)Subject to this Section 3.8, the Property Trustee shall have none of the duties, liabilities, powers or the authority of
the Administrative Trustees set forth in Section 3.6.
 (k)The Property Trustee shall give prompt written notice to the Holders of the Securities of any notice received by it from the Debenture Issuer of the Debenture
Issuer's election to defer payments of interest on the Debentures by extending the interest payment period with respect thereto.
 The Property Trustee must exercise the powers set forth in this Section 3.8 in a manner that is
consistent with the purposes and functions of the Trust set out in Section 3.3, and the Property Trustee shall not take any action that is inconsistent with the purposes and functions of the Trust set out in Section 3.3.
 Section 3.9.Certain Duties and Responsibilities of the Property Trustee. (a) The Property Trustee, before the occurrence of any Event of Default and after the curing of all Events of Default that may have occurred,
shall undertake to perform only such duties as are specifically set forth in this Declaration and in the Securities and no implied covenants shall be read into this Declaration or the Securities against the Property Trustee. In case an Event of
Default has occurred (that has not been cured or waived pursuant to Section 2.6) of which a Responsible Officer of the Property Trustee has actual knowledge, the Property Trustee shall exercise such of the rights and powers vested in it by this
Declaration, and use the same degree of care and skill in their exercise, as a prudent Person would exercise or use under the circumstances in the conduct of his or her own affairs.
 (b)No provision of this Declaration
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)prior to the occurrence of an
Event of Default and after the curing or waiving of all such Events of Default that may have occurred:
 (A)the duties and obligations of the Property Trustee shall be determined solely by the express
provisions of this Declaration and in the Securities, and the Property Trustee shall not be liable except for the performance of such duties and obligations as are specifically set forth in this Declaration and in the Securities, and no implied
covenants or obligations shall be read into this Declaration or the Securities against the Property Trustee; and
     (B)in the absence of bad faith on the part of the Property Trustee, the
Property Trustee may conclusively rely, as to the truth of the statements and the 
 23
  

 
 correctness of the opinions expressed therein, upon any
certificates or opinions furnished to the Property Trustee and conforming to the requirements of this Declaration; provided, however, that in the case of any such certificates or opinions that by any provision hereof are specifically required
to be furnished to the Property Trustee, the Property Trustee shall be under a duty to examine the same to determine whether or not they conform to the requirements of this Declaration;
   (ii)the Property
Trustee shall not be liable for any error of judgment made in good faith by a Responsible Officer of the Property Trustee, unless it shall be proved that the Property Trustee was negligent in ascertaining the pertinent facts upon which such judgment
was made;
 (iii)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 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
Declaration;
 (iv)no provision of this Declaration shall require the Property Trustee to expend or risk its own funds or otherwise incur personal financial liability in the performance of any of its duties or in the
exercise of any of its rights or powers, if the Property Trustee shall have reasonable grounds for believing that the repayment of such funds or liability is not reasonably assured to it under the terms of this Declaration or indemnity reasonably
satisfactory to the Property Trustee against such risk or liability is not reasonably assured to it;
 (v)the Property Trustee's sole duty with respect to the custody, safe keeping and physical preservation of the
Debentures and the Property Trustee 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 Declaration and the Trust Indenture Act;
 (vi)the Property Trustee shall have no duty or liability for or with respect to the value, genuineness, existence or sufficiency of the Debentures or
the payment of any taxes or assessments levied thereon or in connection therewith;
 (vii)the Property Trustee shall not be liable for any interest on any money received by it. Money held by the Property Trustee need not
be segregated from other funds held by it except in relation to the Property Trustee Account maintained by the Property Trustee pursuant to Section 3.8(c)(i) and except to the extent otherwise required by law;
   (viii)the Property Trustee shall not be responsible for monitoring the compliance by the Administrative Trustees or the Sponsor with their respective duties 
 24
  

 
 under this Declaration, nor shall the Property Trustee be liable for any default or misconduct of the Administrative Trustees or the Sponsor; and
 (ix)under no circumstances shall the Property
Trustee be personally liable for any indebtedness or obligation of the Trust.
   Section 3.10.Certain Rights of Property Trustee. (a) Subject to the provisions of Section 3.9:
 (i)the Property Trustee may conclusively rely and shall be fully protected in acting or refraining from acting upon any resolution, certificate, statement, instrument, opinion, report, notice, request, direction, consent,
order, bond, debenture, note, other evidence of indebtedness or other paper or document believed by it to be genuine and to have been signed, sent or presented by the proper party or parties;
 (ii)any direction or act
of the Sponsor or the Administrative Trustees contemplated by this Declaration shall be sufficiently evidenced by an Officers' Certificate;
 (iii)whenever in the administration of this Declaration, the Property Trustee
shall deem it desirable that a matter be proved or established before taking, 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 Officers' Certificate which, upon receipt of such request, shall be promptly delivered by the Sponsor or the Administrative Trustees;
 (iv)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 registration thereof;
 (v)the
Property Trustee may consult with counsel or other experts of its selection and the written advice or opinion of such counsel and experts with respect to legal matters or written advice within the scope of such experts' area of expertise shall be
full and complete authorization and protection in respect of any action taken, suffered or omitted by it hereunder in good faith and in accordance with such advice or opinion, such counsel may be counsel to the Sponsor 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 Declaration from any court of competent jurisdiction;
 (vi)the Property
Trustee shall be under no obligation to exercise any of the rights or powers vested in it by this Declaration at the request or direction of any Holder, unless such Holder shall have provided to the Property Trustee security and indemnity,
reasonably satisfactory to the Property Trustee, against the costs, expenses (including reasonable attorneys' fees and expenses and the expenses of the Property Trustee's agents, nominees or custodians) and liabilities that might be incurred by it
in complying 
   25
  

 
 with such request or direction, including such reasonable advances as may be requested by the Property Trustee; provided,
that, nothing contained in this Section 3.10(a)(vi) shall be taken to relieve the Property Trustee, upon the occurrence of an Event of Default which has not been cured or waived, of its obligation to exercise the rights and powers vested in it by
this Declaration, and use the same degree of care and skill in their exercise, as a prudent Person would exercise or use under the circumstances in the conduct of his or her own affairs;
 (vii)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, direction, consent, order, bond, debenture, note, other evidence of indebtedness or
other paper or document, but the Property Trustee, in its discretion, may make such further inquiry or investigation into such facts or matters as it may see fit;
 (viii)the Property Trustee may execute any of the
trusts or powers hereunder or perform any duties hereunder either directly or by or through agents, custodians, nominees or attorneys and the Property Trustee shall not be responsible for any misconduct or negligence on the part of any agent or
attorney appointed with due care by it hereunder;
 (ix)any action taken by the Property Trustee or its agents hereunder shall bind the Trust and the Holders of the Securities, and the signature of the Property Trustee
or its agents alone shall be sufficient and effective to perform any such action and no third party shall be required to inquire as to the authority of the Property Trustee to so act or as to its compliance with any of the terms and provisions of
this Declaration, both of which shall be conclusively evidenced by the Property Trustee's or its agent's taking such action;
 (x)whenever in the administration of this Declaration 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 which instructions may only be given by the Holders of the same
proportion in liquidation amount of the Securities as would be entitled to direct the Property Trustee under the terms of the 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 conclusively relying on or acting in or accordance with such instructions;
 (xi)except as otherwise expressly provided by this
Declaration, the Property Trustee shall not be under any obligation to take any action that is discretionary under the provisions of this Declaration; and
 (xii)the Property Trustee shall not be liable for any action
taken, suffered, or omitted to be taken by it in good faith, without negligence, and reasonably believed by it to be authorized or within the discretion or rights or powers conferred upon it by this Declaration.
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 (b)No provision of this Declaration 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.
 (c)Notwithstanding anything to the contrary
herein or in any other document, neither the Delaware Trustee nor the Property Trustee shall be required to execute, deliver or certify on behalf of the Property Trustee, the Delaware Trustee, the Trust or any other Person any filings, certificates,
affidavits or other instruments required by the Commission or required under the Sarbanes-Oxley Act of 2002. Notwithstanding any Person's right to instruct the Delaware Trustee or the Property Trustee, neither the Delaware Trustee, the Property
Trustee nor any agent, employee, director or officer of the Delaware Trustee or the Property Trustee shall have any obligation to execute any certificates or other documents required by the Commission or required pursuant to the Sarbanes-Oxley Act
of 2002 or the rules and regulations promulgated thereunder, and the refusal to comply with any such instructions shall not constitute a default or breach under any document.
 Section 3.11.Delaware Trustee.
Notwithstanding any other provision of this Declaration other than Section 5.2, 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 Administrative
Trustees or the Property Trustee described in this Declaration. Except as set forth in Section 5.2, the Delaware Trustee shall be a Trustee for the sole and limited purpose of fulfilling the requirements of Section 3807 of the Statutory Trust Act.
In the event the Delaware Trustee shall at any time be required to take action or perform any duty hereunder with respect to the Trust, the Delaware Trustee shall be entitled to the benefits of Section 3.9(b) and Section 3.10.
 Section 3.12.Execution of Documents. Except as otherwise required by the Statutory Trust Act or this Declaration, any Administrative Trustee is authorized to execute on behalf of the Trust any documents that the
Administrative Trustees have the power and authority to cause the Trust to execute pursuant to Section 3.6; provided that the Registration Statement referred to in Section 3.6(b)(i), including any amendments thereto, shall be signed by all of
the Administrative Trustees.
 Section 3.13.Not Responsible for Recitals or Issuance of Securities. The recitals contained in this Declaration and the Securities shall be taken as the statements of the Sponsor,
and the Trustees do not assume any responsibility for their correctness. The Trustees make no representations as to the value or condition of the property of the Trust or any part thereof. The Trustees make no representations as to the validity or
sufficiency of this Declaration, the Debentures or the Securities.
 Section 3.14.Duration of Trust. The Trust, unless terminated pursuant to the provisions of Article VIII hereof, shall have existence up to
December 1, 2034.
 27
  

 
 Section 3.15.Mergers. (a) 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 Person, except as described in Section 3.15(b) and (c).
 (b)The Trust may, at the request of the Sponsor, with the consent of the Administrative Trustees or,
if there are more than two, a majority of the Administrative Trustees and without the consent of the Holders, the Delaware Trustee or the Property Trustee, merge with or into, consolidate, amalgamate, or be replaced by, or convey, transfer or lease
its properties and assets as an entirety or substantially as an entirety to, a trust organized as such under the laws of any state; provided that:
 (i)such successor entity (the "Successor
Entity") either:
 (A)expressly assumes all of the obligations of the Trust under the Securities; or
 (B)substitutes for the Securities other securities having substantially
the same terms as the Securities (the "Successor Securities") so long as the Successor Securities rank the same as the Securities rank with respect to Distributions and payments upon liquidation, redemption and otherwise;
   (ii)the Sponsor expressly appoints a trustee of the Successor Entity that possesses the same powers and duties as the Property Trustee as the Holder of the Debentures;
 (iii)the Capital
Securities or any Successor Securities are listed or quoted, or any Successor Securities will be listed or quoted upon notification of issuance, on any national securities exchange or with another organization on which the Capital Securities are
then listed or quoted, if any;
 (iv)such merger, consolidation, amalgamation, replacement, conveyance, transfer or lease does not cause the Capital Securities (including any Successor Securities) to be downgraded by any
nationally recognized statistical rating organization;
 (v)such merger, consolidation, amalgamation, replacement, conveyance, transfer or lease does not adversely affect the rights, preferences and privileges of the
Holders (including any Successor Securities) in any material respect (other than with respect to any dilution of such Holders' interests in the new entity);
 (vi)such Successor Entity has a purpose substantially
identical to that of the Trust;
 (vii)prior to such merger, consolidation, amalgamation, replacement, conveyance, transfer or lease, the Sponsor has received an opinion of an independent counsel to the Trust experienced
in such matters to the effect that:
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 (A)such merger, consolidation, amalgamation, replacement,
conveyance, transfer or lease does not adversely affect the rights, preferences and privileges of the Holders (including any Successor Securities) in any material respect (other than with respect to any dilution of the Holders' interest in the new
entity); and
 (B)following such merger, consolidation, amalgamation, replacement, conveyance, transfer or lease, neither the Trust nor the Successor Entity will be required to register as an Investment Company; and

  (viii)the Sponsor or any permitted successor or assignee 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 Capital Securities Guarantee.
   (c)Notwithstanding Section 3.15(b), the Trust shall not consolidate, amalgamate, merge with or into, or be replaced by, or convey,
transfer or lease its properties and assets as an entirety or substantially as an entirety to, any other entity or permit any other entity to consolidate, amalgamate, merge with or into, or replace it if such consolidation, amalgamation, merger,
replacement, conveyance, transfer or lease would cause the Trust or the Successor Entity not to be classified as a grantor trust for United States federal income tax purposes.
  Article IV
 
 Sponsor
  Section 4.1.Sponsor's Purchase of Common Securities. At the Closing Time, the Sponsor will purchase all of the Common Securities then issued by the Trust, in an amount at least equal to 3% of the capital of the Trust
at such time as provided in the Common Securities Subscription Agreement dated as of November 18, 2003 between the Sponsor and the Trust (the "Common Securities Subscription Agreement"), at the same time as the Series A Capital Securities are
to be issued.
 Section 4.2.Responsibilities of the Sponsor. In connection with the issue and sale of the Capital Securities, the Sponsor shall have the exclusive right and responsibility to engage in the
following activities:
 (a)to prepare the Offering Memorandum and to prepare for filing by the Trust with the Commission any Registration Statement, including any amendments thereto as contemplated by the
Registration Rights Agreement;
 (b)to determine 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 the Trust, and advise the Trust of actions it must take, and prepare for execution and filing any documents to be executed and filed by the 
   29
  

 
 Trust, as the Sponsor deems necessary or advisable in order to comply with the applicable laws of any such states;
 (c)if deemed necessary or advisable by the Sponsor, to prepare or cause to be
prepared for filing by the Trust an application to designate the Capital Securities for trading in the PORTAL Market;
 (d)if applicable, to prepare for filing by the Trust with the Commission a registration statement on
Form 8-A relating to the registration of the Capital Securities under Section 12(b) of the Exchange Act, including any amendments thereto;
 (e)to negotiate the terms of and execute the Purchase Agreement providing for
the sale of the Capital Securities and the Registration Rights Agreement; and
 (f)to perform any and all acts necessary or desirable as determined by the Sponsor to effectuate the Exchange Offer or otherwise comply with
the provisions of the Registration Rights Agreement.
   Section 4.3.Right to Proceed. The Sponsor acknowledges the rights of the Holders of Capital Securities, in the event that a failure of the Trust
to pay Distributions on the Capital Securities is attributable to the failure of the Debenture Issuer to pay interest or principal on the Debentures, to institute a Direct Action for enforcement of its payment obligations on the Debentures.
 
Article V
 
 Trustees
  Section 5.1.Number of Trustees; Appointment of Co-Trustee. The number of Trustees initially shall be five (5), and:
 (a)at any time before the issuance of any Securities, the Sponsor may, by written instrument, increase or decrease the number of Trustees; and
 (b)after the issuance of any Securities, the number
of Trustees may be increased or decreased by vote of the Holders of a Majority in liquidation amount of the Common Securities voting as a class at a meeting of the Holders of the Common Securities;
   provided,
however, that the number of Trustees shall in no event be less than two (2); and provided further, that (1) one Trustee shall satisfy the requirements of the Delaware Trustee pursuant to Section 5.2; (2) there shall be at least one
Trustee who is an employee or officer of, or is affiliated with the Sponsor (an "Administrative Trustee"); and (3) one Trustee shall be the Property Trustee for so long as this Declaration is required to qualify as an indenture under the
Trust Indenture Act, and such Property Trustee may also serve as Delaware Trustee if it meets 
 30
  

 
 the applicable requirements. Notwithstanding the above, 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's property may at the time be located, the
Holders of a Majority in liquidation amount of the Common Securities acting as a class at a meeting of the Holders of the Common Securities, and the Administrative Trustees shall have power to appoint one or more Persons either to act as a
co-trustee, jointly with the Property Trustee, of all or any part of the Trust's property, or 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 such capacity any property, title, right or power deemed necessary or desirable, subject to the provisions of this Declaration. In case an Event of Default has occurred and is continuing, the Property Trustee alone shall have
power to make any such appointment of a co-trustee.
 Section 5.2.Delaware Trustee. If required by the Statutory Trust Act, one Trustee (the "Delaware Trustee") shall be:
 (a)a natural Person who is a resident of the State of Delaware; or
 (b)if not a natural Person, an entity which has its principal place of business in the State of Delaware, and otherwise meets
the requirements of applicable law,
   provided that, if the Property Trustee has its principal place of business in the State of Delaware and otherwise meets the requirements of applicable law, then the
Property Trustee may also be the Delaware Trustee and Section 3.11 shall have no application.
 Section 5.3.Property Trustee; Eligibility. (a) There shall at all times be one Trustee (the "Property
Trustee") which shall act as Property Trustee which shall:
 (i)not be an Affiliate of the Sponsor; and
 (ii)be a corporation organized and doing business under the laws of
the United States of America or any state or territory thereof or of the District of Columbia, or a corporation or Person permitted by the Commission to act as an institutional trustee under the Trust Indenture Act, authorized under such laws to
exercise corporate trust powers, having a combined capital and surplus of at least 50 million U.S. dollars ($50,000,000), and subject to supervision or examination by federal, state, territorial or District of Columbia authority. If such corporation
publishes reports of condition at least annually, pursuant to law or to the requirements of the supervising or examining authority referred to above, then for the purposes of this Section 5.3(a)(ii), the combined capital and surplus of such
corporation shall be deemed to be its combined capital and surplus as set forth in its most recent report of condition so published.
   (b)If at any time the Property Trustee shall cease to be eligible to so
act under Section 5.3(a), the Property Trustee shall immediately resign in the manner and with the effect set forth in Section 5.7(c).
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 (c)If the Property Trustee
has or shall acquire any "conflicting interest" within the meaning of Section 310(b) of the Trust Indenture Act, the Property Trustee and the Holder of the Common Securities (as if it were the obligor referred to in Section 310(b) of the Trust
Indenture Act) shall in all respects comply with the provisions of Section 310(b) of the Trust Indenture Act.
 (d)The Capital Securities Guarantee and the Indenture shall be deemed to be specifically described in this
Declaration for purposes of clause (i) of the first proviso contained in Section 310(b) of the Trust Indenture Act.
 (e)The initial Property Trustee shall be:
 Wilmington Trust
Company
 Rodney Square North
 1100 North Market Street
 Wilmington, Delaware 19890-0001
 Attention: Corporate Trust Administration
     Section 5.4.Certain Qualifications of
Administrative Trustees and Delaware Trustee Generally. Each Administrative Trustee and the Delaware Trustee (unless the Property Trustee also acts as Delaware 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 Authorized Officers.
 Section 5.5.Administrative Trustees. The initial Administrative Trustees shall be:
 Michael L.
Scudder
 James P. Hotchkiss
 Steven H. Shapiro
   (a)Except as expressly set forth in this Declaration and except if a meeting of the Administrative Trustees is called with respect to any matter over
which the Administrative Trustees have power to act, any power of the Administrative Trustees may be exercised by, or with the consent of, any one such Administrative Trustee.
 (b)An Administrative Trustee shall have
the authority set forth in Section 3.12 to execute on behalf of the Trust any documents which the Administrative Trustees have the power and authority to cause the Trust to execute pursuant to Section 3.6; and
 (c)An
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 purposes of signing any documents which the Administrative Trustees have power and
authority to cause the Trust to execute pursuant to Section 3.6.
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 Section 5.6.Delaware Trustee. The initial Delaware Trustee shall
be:
 Wilmington Trust Company
 Rodney Square North
 1100 North Market Street
 Wilmington, Delaware 19890-0001
 Attention: Corporate Trust Administration
     Section 5.7.Appointment, Removal and Resignation of Trustees. (a) Subject to Section 5.7(b) of this Declaration and to Section 6(b) of Annex I hereto, Trustees may be appointed or removed without cause at any time:

(i)until the issuance of any Securities, by written instrument executed by the Sponsor;
 (ii)unless an Event of Default shall have occurred and be continuing after the issuance of
any Securities, by vote of the Holders of a Majority in liquidation amount of the Common Securities voting as a single class at a meeting of the Holders of the Common Securities; and
 (iii)if an Event of Default shall
have occurred and be continuing after the issuance of the Securities, with respect to the Property Trustee or the Delaware Trustee, by vote of Holders of a Majority in liquidation amount of the Capital Securities voting as a single class at a
meeting of Holders of the Capital Securities.
   (b)(i) The Trustee that acts as Property Trustee shall not be removed in accordance with Section 5.7(a) until a successor Property Trustee has been appointed
and has accepted such appointment by written instrument executed by such successor Property Trustee and delivered to the Administrative Trustees and the Sponsor; and
 (ii)The Trustee that acts as Delaware Trustee shall
not be removed in accordance with Section 5.7(a) until a successor Trustee possessing the qualifications to act as Delaware Trustee under Sections 5.2 and 5.4 (a "Successor Delaware Trustee") has been appointed and has accepted such
appointment by written instrument executed by such Successor Delaware Trustee and delivered to the Administrative Trustees and the Sponsor.
 (c)A Trustee appointed to office shall hold office until a successor shall
have been appointed or until its death, removal or resignation. Any Trustee may resign from office (without need for prior or subsequent accounting) by an instrument in writing signed by the Trustee and delivered to the Sponsor and the Trust, which
resignation shall take effect upon such delivery or upon such later date as is specified therein; provided, however, that:
 (i)No such resignation of the Trustee that acts as the Property Trustee
shall be effective:
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 (A)until a Successor Property Trustee has been appointed and has accepted such appointment by instrument executed by
such Successor Property Trustee and delivered to the Trust, the Sponsor and the resigning Property Trustee; or
 (B)until the assets of the Trust have been completely liquidated and the proceeds thereof
distributed to the Holders of the Securities; and
   (ii)no such resignation of the Trustee that acts as the Delaware Trustee shall be effective until a Successor Delaware Trustee has been appointed and has
accepted such appointment by instrument executed by such Successor Delaware Trustee and delivered to the Trust, the Sponsor and the resigning Delaware Trustee.
   (d)The Holders of the Common Securities
shall use their best efforts to promptly appoint a Successor Delaware Trustee or Successor Property Trustee, as the case may be, if the Property Trustee or the Delaware Trustee delivers an instrument of resignation in accordance with this Section
5.7.
 (e)If no Successor Property Trustee or Successor Delaware Trustee shall have been appointed and accepted appointment as provided in this Section 5.7 within 60 days after delivery of an instrument of resignation or
removal, the Property Trustee or Delaware Trustee resigning or being removed, as applicable, may petition any court of competent jurisdiction for appointment of a Successor Property Trustee or Successor Delaware Trustee. Such court may thereupon,
after prescribing such notice, if any, as it may deem proper, appoint a Successor Property Trustee or Successor Delaware Trustee, as the case may be.
 (f)No Property Trustee or Delaware Trustee shall be liable for the
acts or omissions to act of any Successor Property Trustee or Successor Delaware Trustee, as the case may be.
 Section 5.8.Vacancies Among Trustees. If a Trustee ceases to hold office for any reason and the
number of Trustees is not reduced pursuant to Section 5.1, or if the number of Trustees is increased pursuant to Section 5.1, a vacancy shall occur. A resolution certifying the existence of such vacancy by the Administrative Trustees or, if there
are more than two, a majority of the Administrative Trustees, shall be conclusive evidence of the existence of such vacancy. The vacancy shall be filled with a Trustee appointed in accordance with Section 5.7.
 Section
5.9.Effect of Vacancies. The death, resignation, retirement, removal, bankruptcy, dissolution, liquidation, 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 5.7, the Administrative Trustees in office, regardless of their number, shall have
all the powers granted to the Administrative Trustees and shall discharge all the duties imposed upon the Administrative Trustees by this Declaration.
 Section 5.10.Meetings. If there is more than one
Administrative Trustee, meetings of the Administrative Trustees shall be held from time to time upon the call of any Administrative 
 34
  

 
 Trustee. Regular meetings of the
Administrative Trustees may be held at a time and place fixed by resolution of the Administrative Trustees. Notice of any in-person meetings of the Administrative Trustees shall be hand delivered or otherwise delivered in writing (including by
facsimile, with a hard copy by overnight courier) not less than 24 hours before such meeting. Notice of any telephonic meetings of the Administrative Trustees or any committee thereof shall be hand delivered or otherwise delivered in writing
(including by facsimile, with a hard copy by overnight courier) not less than 24 hours before a meeting. Notices shall contain a brief statement of the time, place and anticipated purposes of the meeting. The presence (whether in person or by
telephone) of an Administrative Trustee at a meeting shall constitute a waiver of notice of such meeting except where an Administrative Trustee attends a meeting for the express purpose of objecting to the transaction of any activity on the ground
that the meeting has not been lawfully called or convened. Unless provided otherwise in this Declaration, any action of the Administrative Trustees may be taken at a meeting by vote of a majority of the Administrative Trustees present (whether in
person or by telephone) and eligible to vote with respect to such matter, provided that a Quorum is present, or without a meeting by the unanimous written consent of the Administrative Trustees. In the event there is only one Administrative
Trustee, any and all action of such Administrative Trustee shall be evidenced by a written consent of such Administrative Trustee.
 Section 5.11.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 3.6, including any registration statement or amendment thereto
filed with the Commission, or making any other governmental filing; and
 (b)the Administrative Trustees shall have power to delegate from time to time to such of their number or to officers of the Trust 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 5.12.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, as the case may be, may be merged or converted or with which either may be consolidated, or any Person resulting from any merger, conversion or consolidation to which the Property
Trustee or the Delaware Trustee, as the case may be, shall be a party, or any Person succeeding to all or substantially all the corporate trust business of the Property Trustee or the Delaware Trustee, as the case may be, shall be the successor of
the Property Trustee or the Delaware Trustee, as the case may be, 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.
 35
  

 
  Article VI
 
 Distributions
  Section 6.1.Distributions. Holders shall receive Distributions in
accordance with the applicable terms of the relevant Holder's Securities. If and to the extent that the Debenture Issuer makes a payment of interest (including Compounded Interest (as defined in the Indenture) and Additional Interest (as defined in
the Indenture)), premium and/or principal on the Debentures held by the Property Trustee or Liquidated Damages (as defined in the Registration Rights Agreement) or any other payments pursuant to the Registration Rights Agreement with respect to the
Debentures held by the Property Trustee (the amount of any such payment being a "Payment Amount"), the Property Trustee shall and is directed, to the extent funds are available for that purpose, to make a distribution (a
"Distribution") of the Payment Amount to Holders.
  Article VII
 
 Issuance of Securities
  Section 7.1.General Provisions Regarding Securities. (a) The Administrative
Trustees shall on behalf of the Trust issue one class of capital securities representing undivided beneficial interests in the assets of the Trust having such terms as are set forth in Annex I (the "Series A Capital Securities") and one class
of common securities representing undivided beneficial interests in the assets of the Trust having such terms as are set forth in Annex I (the "Common Securities"). The Administrative Trustees shall on behalf of the Trust issue one class of
capital securities representing undivided beneficial interests in the Trust having such terms as set forth in Annex I (the "Series B Capital Securities") in exchange for Series A Capital Securities accepted for exchange in the Exchange Offer,
if any, which Series B Capital Securities shall not bear the legends required by Section 9.2(h) unless the Holder of such Series A Capital Securities is either (A) a broker-dealer who purchased such Series A Capital Securities directly from the
Trust for resale pursuant to Rule 144A or any other available exemption under the Securities Act, (B) a Person participating in the distribution of the Series A Capital Securities or (C) a Person who is an affiliate (as defined in Rule 144A) of the
Trust. The Trust shall issue no securities or other interests in the assets of the Trust other than the Securities.
 (b)The consideration received by the Trust for the issuance of the Securities shall constitute a
contribution to the capital of the Trust and shall not constitute a loan to the Trust.
 (c)Upon issuance of the Securities as provided in this Declaration, the Securities so issued shall be deemed to be validly issued,
fully paid and non-assessable undivided beneficial interests in the assets of the Trust.
 (d)Every Person, by virtue of having become a Holder or a Capital Security Beneficial Owner in accordance with the terms of this
Declaration, shall be deemed to have expressly assented and agreed to the terms of, and shall be bound by, this Declaration.
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 Section
7.2.Execution and Authentication. (a) The Securities shall be signed on behalf of the Trust by an Administrative Trustee. In case any Administrative Trustee of the Trust who shall have signed any of the Securities shall cease to be such
Administrative Trustee before the Securities so signed shall be delivered by the Trust, such Securities nevertheless may be delivered as though the person who signed such Securities had not ceased to be such Administrative Trustee; and any
Securities may be signed on behalf of the Trust by such persons who, at the actual date of execution of such Security, shall be the Administrative Trustees of the Trust, although at the date of the execution and delivery of the Declaration any such
person was not such an Administrative Trustee.
 (b)One Administrative Trustee shall sign the Capital Securities for the Trust by manual or facsimile signature. Unless otherwise determined by the Trust, such signature
shall, in the case of Common Securities, be a manual signature.
 A Capital Security shall not be valid until authenticated by the manual signature of an authorized signatory of the Property Trustee. Each such signature shall be
conclusive evidence that the Capital Security has been authenticated under this Declaration.
 Upon a written order of the Trust signed by one Administrative Trustee, the Property Trustee shall authenticate the Capital
Securities for original issue. The aggregate number of Capital Securities outstanding at any time shall not exceed the number set forth in the Terms in Annex I hereto except as provided in Section 7.7.
 The Property Trustee may
appoint an authenticating agent acceptable to the Trust to authenticate Capital Securities. An authenticating agent may authenticate Capital Securities whenever the Property Trustee may do so. Each reference in this Declaration to authentication by
the Property Trustee includes authentication by such agent. An authenticating agent has the same rights as the Property Trustee to deal with the Sponsor or an Affiliate of the Sponsor.
 Section 7.3.Form and
Dating. The Capital Securities and the Property Trustee's certificate of authentication shall be substantially in the form of Exhibit A-1 and the Common Securities shall be substantially in the form of Exhibit A-2, each of which is hereby
incorporated in and expressly made a part of this Declaration. Certificates representing the Securities may be printed, lithographed or engraved or may be produced in any other manner as is reasonably acceptable to the Administrative Trustees, as
evidenced by their execution thereof. The Securities may have letters, CUSIP or other numbers, notations or other marks of identification or designation and such legends or endorsements required by law, stock exchange rule, agreements to which the
Trust is subject, if any, or usage (provided, that any such notation, legend or endorsement is in a form acceptable to the Trust). The Trust at the direction of the Sponsor shall furnish any such legend not contained in Exhibit A-1 to the
Property Trustee in writing. Each Capital Security shall be dated the date of its authentication. The terms and provisions of the Securities set forth in Annex I and the forms of Securities set forth in Exhibits A-1 and A-2 are part of the terms of
this Declaration and to the extent applicable, the Property Trustee and the Sponsor, by their execution and delivery of this Declaration, expressly agree to such terms and provisions and to be bound thereby.
 37
  

 
 (a)Global Securities. Securities offered and sold to QIBs in reliance on Rule 144A or offered and sold outside of the United States to non-U.S. persons in offshore transactions in reliance
on Regulation S, as provided in the Purchase Agreement, shall be issued in the form of one or more, permanent global securities in definitive, fully registered form without distribution coupons with the global legend and the applicable Restricted
Securities Legend set forth in Exhibit A-1 hereto (respectively, a "Rule 144A Global Capital Security" or "Regulation S Global Capital Security," and each a "Global Capital Security" and together the "Global Capital
Securities"), which shall be deposited on behalf of the purchasers of the Capital Securities represented thereby with the Clearing Agency or with the Property Trustee, at its New York office, as custodian for the Clearing Agency, and registered
in the name of the Clearing Agency or a nominee of the Clearing Agency, duly executed by the Trust and authenticated by the Property Trustee as hereinafter provided. The number of Capital Securities represented by the Rule 144A Global Capital
Security and the Regulation S Global Capital Security may from time to time be increased or decreased by adjustments made on the records of the Property Trustee and the Clearing Agency or its nominee as hereinafter provided.
 (b)Book-Entry Provisions. This Section 7.3(b) shall apply only to the Rule 144A Global Capital Securities, Regulation S Global Capital Securities and such other Capital Securities in global form as may be authorized by
the Trust to be deposited with or on behalf of the Clearing Agency.
 The Trust shall execute and the Property Trustee shall, in accordance with this Section 7.3, authenticate and make available for delivery initially one or
more Rule 144A Global Capital Securities and one or more Regulation S Global Capital Securities that (i) shall be registered in the name of Cede & Co. or other nominee of such Clearing Agency and (ii) shall be delivered by the Property Trustee
to such Clearing Agency or pursuant to such Clearing Agency's written instructions or held by the Property Trustee as custodian for the Clearing Agency.
 Clearing Agency Participants shall have no rights under this Declaration
with respect to any Rule 144A Global Capital Security or any Regulation S Global Capital Security held on their behalf by the Clearing Agency or by the Property Trustee as the custodian of the Clearing Agency or under such Rule 144A Global Capital
Security or such Regulation S Global Capital Security, and the Clearing Agency may be treated by the Trust, the Property Trustee and any agent of the Trust or the Property Trustee as the absolute owner of such Rule 144A Global Capital Security or
such Regulation S Global Capital Security for all purposes whatsoever. Notwithstanding the foregoing, nothing herein shall prevent the Trust, the Property Trustee or any agent of the Trust or the Property Trustee from giving effect to any written
certification, proxy or other authorization furnished by the Clearing Agency or impair, as between the Clearing Agency and its Clearing Agency Participants, the operation of customary practices of such Clearing Agency governing the exercise of the
rights of a holder of a beneficial interest in any Global Capital Security.
 (c)Definitive Capital Securities. Except as provided in Section 7.9, Capital Security Beneficial Owners will not be entitled to receive
physical delivery of certificated Capital Securities ("Definitive Capital Securities"). Purchasers of Securities who are "accredited investors" (as defined in Rule 501(a)(1), (2), (3) or (7) under the Securities Act) and did not 
 38
  

 
 purchase Capital Securities in reliance on Regulation S will receive Capital Securities in the form of individual certificates in definitive, fully registered form without
distribution coupons and with the applicable Restricted Securities Legend set forth in Exhibit A-1 hereto ("Restricted Definitive Capital Securities"); provided, however, that upon registration of transfer of such Restricted Definitive
Capital Securities to a QIB, such Restricted Definitive Capital Securities will, unless the Rule 144A Global Capital Security has previously been exchanged, be exchanged for an interest in a Rule 144A Global Capital Security pursuant to the
provisions of Section 9.2. Restricted Definitive Capital Securities will bear the applicable Restricted Securities Legend set forth on Exhibit A-1 unless removed in accordance with this Section 7.3 or Section 9.2.
 Section 7.4.Registrar, Paying Agent and Exchange Agent. The Trust shall maintain in the State of Delaware, (i) an office or agency where Capital Securities may be presented for registration of transfer
("Registrar"), (ii) an office or agency where Capital Securities may be presented for payment ("Paying Agent") and (iii) an office or agency where Securities may be presented for exchange ("Exchange Agent"). The Registrar shall
keep a register of the Capital Securities and of their transfer. The Trust may appoint the Registrar, the Paying Agent and the Exchange Agent and may appoint one or more co-registrars, one or more additional paying agents and one or more additional
exchange agents in such other locations as it shall determine. The term "Registrar" includes any additional registrar, "Paying Agent" includes any additional paying agent and the term "Exchange Agent" includes any additional exchange agent. The
Trust may change any Paying Agent, Registrar, co-registrar or Exchange Agent without prior notice to any Holder. The Paying Agent shall be permitted to resign as Paying Agent upon 30 days' written notice to the Administrative Trustees. The Trust
shall notify the Property Trustee of the name and address of any Agent not a party to this Declaration. If the Trust fails to appoint or maintain another entity as Registrar, Paying Agent or Exchange Agent, the Property Trustee shall act as such.
The Trust or any of its Affiliates may act as Paying Agent, Registrar, or Exchange Agent. The Trust shall act as Paying Agent, Registrar, co-registrar, and Exchange Agent for the Common Securities.
 The Trust initially appoints
the Property Trustee as Registrar, Paying Agent, and Exchange Agent for the Capital Securities.
 Section 7.5.Paying Agent to Hold Money in Trust. The Trust shall require each Paying Agent other than the Property
Trustee to agree in writing that the Paying Agent will hold in trust for the benefit of the Holders or the Property Trustee all money held by the Paying Agent for the payment of liquidation amounts or Distributions on the Securities, and will notify
the Property Trustee if there are insufficient funds for such purpose. While any such insufficiency continues, the Property Trustee may require a Paying Agent to pay all money held by it to the Property Trustee. The Trust at any time may require a
Paying Agent to pay all money held by it to the Property Trustee and to account for any money disbursed by it. Upon payment over to the Property Trustee, the Paying Agent (if other than the Trust or an Affiliate of the Trust) shall have no further
liability for the money. If the Trust or the Sponsor or an Affiliate of the Trust or the Sponsor acts as Paying Agent, it shall segregate and hold in a separate trust fund for the benefit of the Holders all money held by it as Paying Agent.
 39
  

 
 Section 7.6.Replacement Securities. If a Holder claims that a Security owned by it has been lost, destroyed or wrongfully taken or if such Security is mutilated
and is surrendered to the Trust or in the case of the Capital Securities to the Property Trustee, the Trust shall issue and, in the case of Capital Securities, the Property Trustee shall authenticate a replacement Security if the Property Trustee's
and the Trust's requirements, as the case may be, are met. An indemnity bond must be provided by the Holder which, in the judgment of the Property Trustee, is sufficient to protect the Trustees, the Sponsor or any authenticating agent from any loss
that any of them may suffer if a Security is replaced. The Trust may charge such Holder for its expenses in replacing a Security.
 Every replacement Security is an additional beneficial interest in the Trust.
 Section 7.7.Outstanding Capital Securities. The Capital Securities outstanding at any time are all the Capital Securities authenticated by the Property Trustee except for those cancelled by it, those delivered to it
for cancellation, and those described in this Section as not outstanding.
 If a Capital Security is replaced, paid or purchased pursuant to Section 7.6 hereof, it ceases to be outstanding unless the Property Trustee receives
proof satisfactory to it that the replaced, paid or purchased Capital Security is held by a bona fide purchaser.
 If Capital Securities are considered paid in accordance with the terms of this Declaration, they cease to be
outstanding and Distributions on them shall cease to accumulate.
 A Capital Security does not cease to be outstanding because one of the Trust, the Sponsor or an Affiliate of the Sponsor holds the Security.
 Section 7.8.Capital Securities in Treasury. In determining whether the Holders of the required amount of Securities have concurred in any direction, waiver or consent, Capital Securities owned by the Trust, the Sponsor
or an Affiliate of the Sponsor, as the case may be, shall be disregarded and deemed not to be outstanding, except that for the purposes of determining whether the Property Trustee shall be fully protected in relying on any such direction, waiver or
consent, only Securities that a Responsible Officer of the Property Trustee actually knows to be so owned shall be so disregarded.
 Section 7.9.Temporary Securities. (a) Until definitive Securities are ready for
delivery, the Trust may prepare and, in the case of the Capital Securities, the Property Trustee shall authenticate temporary Securities. Temporary Securities shall be substantially in the form of definitive Securities in lieu of which they are
issued and with such insertions, omissions, substitutions and other variations that the Trust deems appropriate for temporary Securities. Without unreasonable delay, the Trust shall prepare and, in the case of the Capital Securities, the Property
Trustee shall authenticate definitive Securities in exchange for temporary Securities.
 (b)A Global Capital Security deposited with the Clearing Agency or with the Property Trustee as custodian for the Clearing Agency
pursuant to Section 7.3 shall be transferred to the beneficial owners thereof in the form of definitive certificated Capital Securities only if such
 40
  

 
 transfer complies with
Section 9.2 and (i) the Clearing Agency notifies the Trust that it is unwilling or unable to continue as Clearing Agency for such Global Capital Security or if at any time such Clearing Agency ceases to be a "clearing agency" registered under the
Exchange Act and a clearing agency is not appointed by the Sponsor within 90 days of such notice, (ii) a Default or an Event of Default has occurred and is continuing or (iii) the Trust at its sole discretion elects to cause the issuance of
definitive certificated Capital Securities.
 (c)Any Global Capital Security that is transferable to the beneficial owners thereof in the form of definitive certificated Capital Securities pursuant to this Section 7.9
shall be surrendered by the Clearing Agency to the Property Trustee located in the State of Delaware, to be so transferred, in whole or from time to time in part, without charge, and the Property Trustee shall authenticate and make available for
delivery, upon such transfer of each portion of such Global Capital Security, an equal aggregate liquidation amount of Securities of authorized denominations in the form of certificated Capital Securities. Any portion of a Global Capital Security
transferred pursuant to this Section shall be registered in such names as the Clearing Agency shall direct. Any Capital Security in the form of definitive certificated Capital Securities delivered in exchange for an interest in the Restricted
Capital Security in global form shall, except as otherwise provided by Sections 7.3 and 9.2, bear the applicable Restricted Securities Legend set forth in Exhibit A-1 hereto.
 (d)Subject to the provisions of Section
7.9(c), the Holder of a Global Capital Security may grant proxies and otherwise authorize any Person, including Clearing Agency Participants and Persons that may hold interests through Clearing Agency Participants, to take any action which such
Holder is entitled to take under this Declaration or the Securities.
 (e)In the event of the occurrence of any of the events specified in Section 7.9(b), the Trust will promptly make available to the Property Trustee a
reasonable supply of certificated Capital Securities in fully registered form without distribution coupons.
 Section 7.10.Cancellation. The Trust at any time may deliver Capital Securities to the Property Trustee
for cancellation. The Registrar, Paying Agent and Exchange Agent shall forward to the Property Trustee any Capital Securities surrendered to them for registration of transfer, redemption, exchange or payment. The Property Trustee shall promptly
cancel all Capital Securities surrendered for registration of transfer, redemption, exchange, payment, replacement or cancellation and shall retain or dispose of cancelled Capital Securities in its customary manner unless the Sponsor directs them to
be returned to it, provided that the Property Trustee shall not be obligated to destroy Capital Securities. The Trust may not issue new Capital Securities to replace Capital Securities that have been redeemed or paid or that have been
delivered to the Property Trustee for cancellation or that any Holder has exchanged.
 Section 7.11.CUSIP Numbers. The Trust in issuing the Capital Securities may use "CUSIP" numbers (if then generally in use),
and, if so, the Property Trustee shall use "CUSIP" numbers in notices of redemption as a convenience to Holders of Capital Securities; provided that any such notice may state that no representation is made as to the correctness of such
numbers either as printed on the Capital Securities or as contained in any notice of a redemption and that reliance may be placed only on the other identification numbers printed on the Capital 41
  

 
 Securities, and any such redemption shall not be affected by any defect in or omission of such numbers. The Sponsor will promptly notify the Property Trustee after it becomes aware of any change in the CUSIP numbers.
  Article VIII
 
 Termination of Trust
  Section 8.1.Termination of Trust. (a) The Trust shall automatically terminate:
 (i)upon the bankruptcy of
the Sponsor;
 (ii)upon the filing of a certificate of dissolution or liquidation or its equivalent with respect to the Sponsor, or the revocation of the Sponsor's charter and the expiration of 90 days after the date of
revocation without a reinstatement thereof;
 (iii)following the distribution of a Like Amount of the Debentures to the Holders upon the liquidation of the Trust, Debentures having a principal amount equal to the
liquidation amount of the Trust Securities of the Holder to whom such Debentures are distributed, provided that, the Property Trustee has received written notice from the Sponsor directing the Property Trustee to terminate the Trust (which
direction is optional, and except as otherwise expressly provided below, within the discretion of the Sponsor) and; provided, further, that such direction and such distribution is conditioned on the receipt by the Sponsor or the Trust, as the
case requires, of any required regulatory approval (including without limitation any required approval of the Federal Reserve Board);
 (iv)upon the entry of a decree of judicial dissolution of the Trust by a court of
competent jurisdiction;
 (v)when all of the Securities shall have been called for redemption and the amounts necessary for redemption thereof shall have been paid to the Holders in accordance with the terms of the
Securities;
 (vi)upon the repayment of the Debentures or at such time as no Debentures are outstanding; or
 (vii)the expiration of the term of the Trust provided in Section 3.14.
 
 (b)As soon as is practicable after the occurrence of an event referred to in Section 8.1(a) and in accordance with Section 3810 of the Statutory Trust Act the Administrative Trustees shall file a certificate of
cancellation with the Secretary of State of the State of Delaware.
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 (c)The provisions of Section 3.9 and Article X shall survive the termination of the Trust.

 Article IX
 
 Transfer of Interests
  Section 9.1.Transfer of Securities. (a) Securities may only be transferred, in whole or in part, in accordance with the terms and conditions
set forth in this Declaration and in the terms of the Securities. Any transfer or purported transfer of any Security not made in accordance with this Declaration shall be null and void.
 (b)The Sponsor may not transfer
the Common Securities other than a transfer in connection with a consolidation or merger of the Sponsor into another Person, or any conveyance, transfer or lease by the Sponsor of its properties and assets substantially as an entirety to any Person,
pursuant to the Indenture.
 (c)The Administrative Trustees shall provide for the registration and transfer of Securities, which will be effected without charge but only upon payment (with such indemnity as the
Administrative Trustees may require) in respect of any tax or other governmental charges that may be imposed in relation to it. Upon surrender for registration of transfer of any Securities, the Administrative Trustees shall cause one or more new
Securities to be issued in the name of the designated transferee or transferees. Every Security surrendered for registration of transfer shall be accompanied by a written instrument of transfer in form satisfactory to the Administrative Trustees
duly executed by the Holder or such Holder's attorney duly authorized in writing. Each Capital Security surrendered for registration of transfer shall be canceled by the Property Trustee. A transferee of a Security shall be entitled to the rights
and subject to the obligations of a Holder hereunder upon the receipt by such transferee of a Security. By acceptance of a Security, each transferee shall be deemed to have agreed to be bound by this Declaration.
 Section 9.2.Transfer Procedures and Restrictions.
 (a)General. Except as otherwise provided in Section 9.2(b), if Capital Securities are issued upon the registration of transfer,
exchange or replacement of Capital Securities bearing the Restricted Securities Legend set forth in Exhibit A-1 hereto, or if a request is made to remove such Restricted Securities Legend on Capital Securities, the Capital Securities so issued shall
bear the Restricted Securities Legend, or the Restricted Securities Legend shall not be removed, as the case may be, unless there is delivered to the Trust and the Property Trustee such evidence satisfactory to the Sponsor, which shall include an
Opinion of Counsel as may be reasonably required by the Sponsor, that neither the legend nor the restrictions on transfer set forth therein are required to ensure that transfers thereof are made pursuant to an exception from the registration
requirements of the Securities Act or, with respect to Restricted Definitive Capital Securities, that such Securities are not "restricted" within the meaning of Rule 144. Upon provision of such satisfactory evidence, the Property Trustee, at the
written direction of the Trust, shall authenticate and deliver Capital Securities that do not bear the legend.
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 (b)Transfers After Effectiveness of a
Registration Statement. After the effectiveness of a Registration Statement with respect to any Capital Securities, and except as otherwise required by applicable laws and regulations or currently prevailing interpretations of the staff of the
Commission, all requirements pertaining to legends on such Capital Securities will cease to apply, and beneficial interests in a Capital Security in global form without legends will be available to transferees of such Capital Securities, upon
exchange of the transferring Holder's Restricted Definitive Capital Security or directions to transfer such Holder's beneficial interest in the Rule 144A Global Capital Security or the Regulation S Global Capital Security, as the case may be. No
such transfer or exchange of a Restricted Definitive Capital Security or of an interest in the Rule 144A Global Capital Security or the Regulation S Global Capital Security shall be effective unless the transferor delivers to the Trust a certificate
in a form substantially similar to that attached hereto as the "Form of Assignment" in Exhibit A-1. Except in connection with the Exchange Offer as provided in Section 9.2(l), after the effectiveness of a Registration Statement, the Trust shall
issue and the Property Trustee, upon a written order of the Trust signed by one Administrative Trustee, shall authenticate a Capital Security in global form without the Restricted Securities Legend (the "Unrestricted Global Capital Security")
for deposit with the Clearing Agency or its custodian to evidence transfers of beneficial interests from the (i) Rule 144A Global Capital Security or the Regulation S Global Capital Security and (ii) Restricted Definitive Capital Securities.
 (c)Transfer and Exchange of Definitive Capital Securities. When Definitive Capital Securities are presented to the Registrar or co-Registrar
 (x)to register the transfer of
such Definitive Capital Securities; or
 (y)to exchange such Definitive Capital Securities for an equal number of Definitive Capital Securities,
   the Registrar or co-registrar shall
register the transfer or make the exchange as requested if its reasonable requirements for such transaction are met; provided, however, that the Definitive Capital Securities surrendered for transfer or exchange:
 (i)shall be duly endorsed or accompanied by a written instrument of transfer in form reasonably satisfactory to the Administrative Trustees and the Registrar or co-registrar, duly executed by the Holder thereof or his
attorney duly authorized in writing; and
 (ii)in the case of Definitive Capital Securities that are Restricted Definitive Capital Securities:
 (A)if such Restricted Capital
Securities are being delivered to the Registrar by a Holder for registration in the name of such Holder, without transfer, a certification from such Holder to that effect; or
 (B)if such Restricted Capital Securities
are being transferred: (i) a certification from the transferor in a form substantially similar to that attached
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 hereto
as the "Form of Assignment" in Exhibit A-1, and (ii) if the Trust so requests, evidence reasonably satisfactory to it as to the compliance with the restrictions set forth in the Restricted Securities Legend.
     (d)Restrictions on Transfer of a Definitive Capital Security for a Beneficial Interest in a Global Capital Security. A Definitive Capital Security may not be exchanged for a beneficial interest in a Global Capital
Security except upon satisfaction of the requirements set forth below. Upon receipt by the Property Trustee of a Definitive Capital Security, duly endorsed or accompanied by appropriate instruments of transfer, in form satisfactory to the Property
Trustee and the Administrative Trustees, together with:
 (i)if such Definitive Capital Security is a Restricted Capital Security, certification (in a form substantially similar to that attached hereto as the
"Form of Assignment" in Exhibit A-1), provided, however, that such Definitive Capital Security may only be exchanged for an interest in a Regulation S Global Security where such Definitive Capital Security is being transferred pursuant
to Regulation S or Rule 144 (if available); and
 (ii)whether or not such Definitive Capital Security is a Restricted Capital Security, written instructions directing the Property Trustee to make, or to direct the
Clearing Agency to make, an adjustment on its books and records with respect to the appropriate Global Capital Security to reflect an increase in the number of the Capital Securities represented by such Global Capital Security,
   then the Property Trustee shall cancel such Definitive Capital Security and cause, or direct the Clearing Agency to cause, the aggregate number of Capital Securities represented by the appropriate Global Capital Security to be
increased accordingly. If no Global Capital Securities are then outstanding, the Trust shall issue and the Property Trustee shall authenticate, upon written order of any Administrative Trustee, an appropriate number of Capital Securities in global
form.
 (e)Transfer and Exchange of Global Capital Securities. Subject to Section 9.2(f), the transfer and exchange of Global Capital Securities or beneficial interests therein shall be effected through the
Clearing Agency, in accordance with this Declaration (including applicable restrictions on transfer set forth herein, if any) and the procedures of the Clearing Agency therefor.
 (f)Transfer of a Beneficial Interest
in a Global Capital Security for a Definitive Capital Security.
 (i)Any Person having a beneficial interest in a Global Capital Security may upon request, but only upon 20 days prior notice
to the Property Trustee, and if accompanied by the information specified below, exchange such beneficial interest for a Definitive Capital Security representing the same number of Capital Securities. Upon receipt by the Property Trustee from the
Clearing Agency or its nominee on behalf of any Person having a beneficial interest in a 
     45
  

 
 Global Capital Security of
written instructions or such other form of instructions as is customary for the Clearing Agency or the Person designated by the Clearing Agency as having such a beneficial interest in a Restricted Capital Security and a certification from the
transferor (in a form substantially similar to that attached hereto as the "Form of Assignment" in Exhibit A-1), which may be submitted by facsimile, then the Property Trustee will cause the aggregate number of Capital Securities represented
by Global Capital Securities to be reduced on its books and records and, following such reduction, the Trust will execute and the Property Trustee will authenticate and make available for delivery to the transferee a Definitive Capital Security.

(ii)Definitive Capital Securities issued in exchange for a beneficial interest in a Global Capital Security pursuant to this Section 9.2(f) shall be registered in such names and in such authorized denominations as the
Clearing Agency, pursuant to instructions from its Clearing Agency Participants or indirect participants or otherwise, shall instruct the Property Trustee in writing. The Property Trustee shall deliver such Capital Securities to the Persons in whose
names such Capital Securities are so registered in accordance with such instructions of the Clearing Agency.
     (g)Restrictions on Transfer and Exchange of Global Capital Securities.
Notwithstanding any other provisions of this Declaration (other than the provisions set forth in subsection (b) of Section 7.9), a Global Capital Security may not be transferred as a whole except by the Clearing Agency to a nominee of the Clearing
Agency or another nominee of the Clearing Agency or by the Clearing Agency or any such nominee to a successor Clearing Agency or a nominee of such successor Clearing Agency.
 Prior to the expiration of the restricted period, as
contemplated by Regulation S, beneficial interests in the Regulation S Global Capital Security may be exchanged for beneficial interests in the Rule 144A Global Capital Security only if such exchange occurs in connection with a transfer of the
Capital Securities pursuant to Rule 144A and the transferor first delivers to the Property Trustee a written certificate (in a form substantially similar to that attached hereto as the "Form of Assignment" in Exhibit A-1) to the effect that
the Capital Securities are being transferred to a Person who the transferor reasonably believes is a QIB, purchasing for its own account or the account of a QIB in a transaction meeting the requirements of Rule 144A and in accordance with all
applicable securities laws of the states of the United States and other jurisdictions.
 Beneficial interests in the Rule 144A Global Capital Security may be transferred to a Person who takes delivery in the form of an interest
in the Regulation S Global Capital Security, whether before or after the expiration of such restricted period, as contemplated by Regulation S, only if the transferor first delivers to the Property Trustee a written certificate (in a form
substantially similar to that attached hereto as the "Form of Assignment" in Exhibit A-1) to the effect that such transfer is being made in accordance with Rule 903 or Rule 904 of Regulation S or Rule 144 (if available) and that, if such
transfer occurs prior to the expiration of such restricted 
 46
  

 
 period, the interest transferred will be held immediately thereafter through the Euroclear System or
Clearstream, societe anonyme.
 (h)Legend. (i) Except as permitted by the following paragraph (ii), each Capital Security certificate evidencing the Global Capital Securities and the Definitive Capital Securities
(and all Capital Securities issued in exchange therefor or substitution thereof) shall bear a legend (the "Restricted Securities Legend") in substantially the following form, as applicable:
 The
Holder of this Capital Security by its acceptance hereof is deemed to have agreed to be bound by the provisions of a registration rights agreement among First Midwest Bancorp, Inc. (the "Corporation"), First Midwest Capital Trust I (the
"Trust"), and the Initial Purchasers named therein dated November 18, 2003 (the "Registration Rights Agreement"). The Corporation will provide a copy of the registration rights agreement to a Holder without charge upon written request
to the trust at its principal place of business.
 This Capital Security has not been registered under the Securities Act of 1933, as amended (the "Securities Act") or any state securities laws or any other applicable
securities law. Neither this Capital Security nor any interest or participation herein may be reoffered, sold, assigned, transferred, pledged, encumbered or otherwise disposed of in the absence of such registration or unless such transaction is
exempt from, or not subject to, registration.
     The Holder of this Capital Security by its acceptance hereof agrees to offer, sell or otherwise transfer this Capital Security, prior to the date (the
"Resale Restriction Termination Date") which is two years after the later of the original issuance date hereof and the last date on which the Corporation or any "Affiliate" of the Corporation was the owner of this Capital Security (or any
predecessor of this Capital Security) only (A) to the corporation, (B) pursuant to a registration statement which has been declared effective under the Securities Act, (C) so long as this Capital Security is eligible for resale pursuant to Rule 144A
under the Securities Act ("Rule 144A"), to a person it reasonably believes is a "Qualified Institutional Buyer" (as defined in Rule 144A) that purchases for its own account or for the account of a qualified institutional buyer to whom notice
is given that the transfer is being made in reliance on Rule 144A, 
 47
  

 
 (D) pursuant to offers and sales to non-U.S. Persons that occur outside the
United States within the meaning of Regulation S under the Securities Act, (E) to an institutional "Accredited Investor" within the meaning of subparagraph (a)(1), (2), (3) or (7) of Rule 501 under the Securities Act that is acquiring this Capital
Security for its own account, or for the account of such an Institutional Accredited Investor, for investment purposes and not with a view to, or for offer or sale in connection with, any distribution in violation of the Securities Act or (F)
pursuant to any other available exemption from the registration requirements under the Securities Act, subject to the right of the trust and the Corporation prior to any such offer, sale or transfer (i) pursuant to clause (D), (E) or (F) to require
the delivery of an opinion of counsel, certifications and/or other information satisfactory to each of them and (ii) pursuant to Clause (E), to require that the transferor deliver to the trust a letter from the transferee substantially in the form
of Annex A to the offering memorandum dated November 10, 2003. Such Holder further agrees that it will deliver to each person to whom this Capital Security is transferred a notice substantially to the effect of this legend.
 The Holder of this Capital Security by its acceptance hereof also agrees, represents and warrants that either (i) it is not an employee benefit plan subject to the Employment Retirement Income Security Act of 1974, as amended
("Erisa") or (ii) the acquisition and holding of this Capital Security by it is not prohibited by either Section 406 of Erisa or Section 4975 of the U.S. Internal Revenue Code of 1986, as amended, or is exempt from any such prohibition.

The Capital Securities will be issued and, until registered under the Securities Act, may be transferred only in blocks having a liquidation amount of not less than $100,000 (100 capital securities). Any attempted transfer of
Capital Securities in a block having a liquidation amount of less than $100,000 shall be deemed to be void and of no legal effect whatsoever. Any such purported transferee shall be deemed not to be the Holder of such Capital Securities for any
purpose, including, but not limited to, the receipt of distributions on such Capital 
     48
  

 
 Securities, and such purported
transferee shall be deemed to have no interest whatsoever in such Capital Securities.
     and in the case of the Regulation S Global Capital Security:
 This
Capital Security has not been registered under the Securities Act and may not be offered or sold within the United States or to, or for the account or benefit of, U.S. Persons unless registered under the Securities Act or an exemption from the
registration requirements of the Securities Act is available.
     (ii) Upon any sale or transfer of a Restricted Capital Security (including any Restricted Capital Security represented by a
Global Capital Security) pursuant to an effective registration statement under the Securities Act or pursuant to Rule 144 under the Securities Act after such registration statement ceases to be effective:
 (A)in the case of any Restricted Capital Security that is a Definitive Capital Security, the Registrar shall permit the Holder thereof to exchange such Restricted Capital Security for a Definitive Capital Security that does
not bear the Restricted Securities Legend and rescind any restriction on the transfer of such Restricted Capital Security; and
 (B)in the case of any Restricted Capital Security that is represented by a Global Capital
Security, the Registrar shall permit the Holder of such Global Capital Security to exchange such Global Capital Security for another Global Capital Security that does not bear the Restricted Securities Legend.
   (i)Cancellation or Adjustment of Global Capital Security. At such time as all beneficial interests in a Global Capital Security have either been exchanged for Definitive Capital Securities to the extent permitted by
this Declaration or redeemed, repurchased or canceled in accordance with the terms of this Declaration, such Global Capital Security shall be returned to the Property Trustee for cancellation by the Property Trustee. At any time prior to such
cancellation, if any beneficial interest in a Global Capital Security is exchanged for Definitive Capital Securities, Capital Securities represented by such Global Capital Security shall be reduced and an adjustment shall be made on the books and
records of the Property Trustee (if it is then the custodian for such Global Capital Security) with respect to such Global Capital Security, by the Property Trustee or any Securities custodian, to reflect such reduction.
 (j)Obligations with Respect to Transfers and Exchanges of Capital Securities.
 (i)To permit registrations of transfers and exchanges, the Trust shall execute and the Property
Trustee shall authenticate Definitive Capital Securities and Global Capital Securities at the Registrar's or co- Registrar's request in accordance with the terms of this Declaration.
   49
  



 (ii)Registrations of transfers or exchanges will be effected without charge, but only upon payment (with such indemnity as the Trust or the Sponsor may require) in respect of any tax or other
governmental charge that may be imposed in relation to it.
 (iii)The Registrar or co-registrar shall not be required to register the transfer of or exchange of (a) Capital Securities during a period beginning at the
opening of business 15 days before the day of mailing of a notice of redemption or any notice of selection of Capital Securities for redemption and ending at the close of business on the day of such mailing; or (b) any Capital Security so selected
for redemption in whole or in part, except the unredeemed portion of any Capital Security being redeemed in part.
 (iv)Prior to the due presentation for registrations of transfer of any Capital Security, the Trust, the
Property Trustee, the Paying Agent, the Registrar or any co-registrar may deem and treat the Person in whose name a Capital Security is registered as the absolute owner of such Capital Security for the purpose of receiving Distributions on such
Capital Security (subject to Section 2(c) of Annex I) and for all other purposes whatsoever, and none of the Trust, the Property Trustee, the Paying Agent, the Registrar or any co-registrar shall be affected by notice to the contrary.
 (v)All Capital Securities issued upon any registration of transfer or exchange pursuant to the terms of this Declaration shall evidence the same security and shall be entitled to the same benefits under this Declaration as
the Capital Securities surrendered upon such registration of transfer or exchange.
   (k)No Obligation of the Property Trustee.
 (i)The Property Trustee shall
have no responsibility or obligation to any beneficial owner of a Global Capital Security, a Clearing Agency Participant in the Clearing Agency or other Person with respect to the accuracy of the records of the Clearing Agency or its nominee or of
any Clearing Agency Participant thereof, with respect to any ownership interest in the Capital Securities or with respect to the delivery to any Clearing Agency Participant, beneficial owner or other Person (other than the Clearing Agency) of any
notice (including any notice of redemption) or the payment of any amount, under or with respect to such Capital Securities. All notices and communications to be given to the Holders and all payments to be made to Holders under the Capital Securities
shall be given or made only to or upon the order of the registered Holders (which shall be the Clearing Agency or its nominee in the case of a Global Capital Security). The rights of Capital Security Beneficial Owners shall be exercised only through
the Clearing Agency subject to the applicable rules and procedures of the Clearing Agency. The Property Trustee may conclusively rely and shall be fully protected in relying upon information furnished by the Clearing Agency or any agent thereof with
respect to its Participants and any Capital Security Beneficial Owners.
 (ii)The Property Trustee and Registrar shall have no obligation or duty to monitor, determine or inquire as to compliance with any restrictions on
transfer imposed under this Declaration or under applicable law with respect to any transfer of any interest 
   50
  

 
 in any Capital Security (including
any transfers between or among Clearing Agency Participants or Capital Security Beneficial Owners) other than to require delivery of such certificates and other documentation or evidence as are expressly required by, and to do so if and when
expressly required by, the terms of this Declaration, and to examine the same to determine substantial compliance as to form with the express requirements hereof.
   (l)Exchange of Series A Capital
Securities for Series B Capital Securities. (i) The Series A Capital Securities may be exchanged for Series B Securities pursuant to the terms of the Exchange Offer in the manner contemplated by the Registration Rights Agreement. The Trustee
shall make the exchange as follows:
 The Sponsor shall present the Property Trustee with an Officers' Certificate certifying the following:
 (A)upon issuance of the Series B
Capital Securities, the transactions contemplated by the Exchange Offer have been consummated; and
 (B)the number of Series A Capital Securities properly tendered in the Exchange Offer that are represented by a Global
Capital Security and the number of Series A Capital Securities properly tendered in the Exchange Offer that are represented by Definitive Capital Securities, the name of each Holder of such Definitive Capital Securities, the liquidation amount of
Capital Securities properly tendered in the Exchange Offer by each such Holder and the name and address to which Definitive Capital Securities for Series B Capital Securities shall be registered and sent for each such Holder.
   (ii)The Property Trustee, upon receipt of (i) such Officers' Certificate, (ii) an Opinion of Counsel (x) to the effect that the Series B Capital Securities have been registered under Section 5 of the Securities Act and the
Indenture has been qualified under the Trust Indenture Act and (y) with respect to the matters set forth in Section 3(o) of the Registration Rights Agreement and (iii) a Company Order (as defined in the Indenture), shall authenticate (A) a Global
Capital Security for Series B Capital Securities in aggregate liquidation amount equal to the aggregate liquidation amount of Series A Capital Securities represented by a Global Capital Security indicated in such Officers' Certificate as having been
properly tendered and (B) Definitive Capital Securities representing Series B Capital Securities registered in the names of, and in the liquidation amounts indicated in such Officers' Certificate.
   (iii)If, upon consummation of the Exchange Offer, less than all the outstanding Series A Capital Securities shall have been properly tendered and not withdrawn, the Property Trustee shall make an endorsement on such Global
Capital Security for Series A Capital Securities indicating the reduction in the number and aggregate liquidation amount represented thereby as a result of the Exchange Offer.
 51
  

 
 (iv)The Property Trustee shall deliver such Definitive Capital Securities for Series B Capital Securities to the Holders thereof as indicated in such Officers' Certificate.
   (m)Minimum Transfers. Capital Securities may only be transferred in minimum blocks of $100,000 aggregate liquidation amount (and integrals of $1,000 above $100,000) until such Capital Securities are registered pursuant
to an effective registration statement filed under the Securities Act. Any transfer of Capital Securities in violation of this Section having an aggregate liquidation amount of less than $100,000 will be void. After the Capital Securities are
registered pursuant to an effective registration statement filed under the Securities Act, the Capital Securities may be transferred in blocks of $1,000 aggregate liquidation amount (one Capital Security) or integral multiples thereof.
 Section 9.3.Book Entry Interests. Global Capital Securities shall initially be registered on the books and records of the Trust in the name of Cede & Co., the nominee of the Clearing Agency, and no Capital Security
Beneficial Owner will receive a Definitive Capital Security certificate representing such Capital Security Beneficial Owner's interests in such Global Capital Securities, except as provided in Section 9.2 and 7.9. Unless and until definitive, fully
registered Capital Securities certificates have been issued to the Capital Security Beneficial Owners pursuant to Section 9.2 and 7.9:
 (a)the provisions of this Section 9.3 shall be in full force and
effect;
 (b)the Trust and the Trustees shall be entitled to deal with the Clearing Agency for all purposes of this Declaration (including the payment of Distributions on the Global Capital Securities and receiving
approvals, votes or consents hereunder) as the Holder of the Capital Securities and the sole holder of the Global Certificates and shall have no obligation to the Capital Security Beneficial Owners;
 (c)to the extent
that the provisions of this Section 9.3 conflict with any other provisions of this Declaration, the provisions of this Section 9.3 shall control; and
 (d)the rights of the Capital Security Beneficial Owners shall be
exercised only through the Clearing Agency and shall be limited to those established by law and agreements between such Capital Security Beneficial Owners and the Clearing Agency and/or the Clearing Agency Participants and the Clearing Agency shall
receive and transmit payments of Distributions on the Global Certificates to such Clearing Agency Participants. The Clearing Agency will make book entry transfers among the Clearing Agency Participants.
   Section 9.4.Notices to Clearing Agency. Whenever a notice or other communication to the Capital Security Holders is required under this Declaration, the Trustees shall give all such notices and communications specified
herein to be given to the Holders of Global Capital Securities to the Clearing Agency, and shall have no notice obligations to the Capital Security Beneficial Owners.
 52
  

 
 Section 9.5.Appointment of Successor Clearing Agency. If any Clearing Agency elects to discontinue its services as securities depositary with respect to the Capital Securities, the Administrative Trustees may, in their
sole discretion, appoint a successor Clearing Agency with respect to such Capital Securities.
  Article X
 
 Limitation of Liability of Holders of Securities,
 Trustees or Others
  Section 10.1.Liability. (a) Except as expressly set forth in this Declaration, the Capital Securities Guarantee and the terms of the Securities, the Sponsor shall not be:
 (i)personally liable for the return of any portion of the capital contributions (or any return thereon) of the Holders of the Securities which shall be made solely from assets of the Trust; or
 (ii)required to pay to the Trust or to any Holder of Securities any deficit upon dissolution or termination of the Trust or otherwise.
   (b)The Sponsor shall be liable for all of the
debts and obligations of the Trust (other than with respect to the Securities) to the extent not satisfied out of the Trust's assets.
 (c)Pursuant to Section 3803(a) of the Statutory Trust Act, the Holders of the
Capital Securities 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.
 Section
10.2.Exculpation. (a) No Indemnified Person shall be liable, responsible or accountable in damages or otherwise to the Trust or any Covered Person for any loss, damage or claim incurred by reason of any act or omission performed or omitted
by such Indemnified Person in good faith on behalf of the Trust and in a manner such Indemnified Person reasonably believed to be within the scope of the authority conferred on such Indemnified Person by this Declaration or by law, except that an
Indemnified Person shall be liable for any such loss, damage or claim incurred by reason of such Indemnified Person's gross negligence or willful misconduct with respect to such acts or omissions.
 (b)An Indemnified
Person shall be fully protected in relying in good faith upon the records of the Trust and upon such information, opinions, reports or statements presented to the Trust by any Person as to matters the Indemnified Person reasonably believes are
within such other Person's professional or expert competence and, if selected by such Indemnified Person, has been selected by such Indemnified Person with reasonable care on behalf of the Trust, including information, opinions, reports or
statements as to the value and amount of the assets, liabilities, profits, losses, or any other facts pertinent to the existence and amount of assets from which Distributions to Holders of Securities might properly be paid.
 53
  

 
  
 Section 10.3.Fiduciary Duty. (a) To the extent that, at law or in equity, an Indemnified Person has duties (including fiduciary
duties) and liabilities relating thereto to the Trust or to any other Covered Person, an Indemnified Person acting under this Declaration shall not be liable to the Trust or to any other Covered Person for its good faith reliance on the provisions
of this Declaration. The provisions of this Declaration, to the extent that they restrict the duties and liabilities of an Indemnified Person otherwise existing at law or in equity (other than the duties imposed on the Property Trustee under the
Trust Indenture Act), are agreed by the parties hereto to replace such other duties and liabilities of such Indemnified Person.
 (b)Unless otherwise expressly provided herein:
 (i)whenever a conflict of interest exists or arises between any Covered Persons and any Indemnified Persons; or
 (ii)whenever this Declaration or any other agreement contemplated herein or
therein provides that an Indemnified Person shall act in a manner that is, or provides terms that are, fair and reasonable to the Trust or any Holder of Securities,
   the Indemnified Person shall resolve such
conflict of interest, take such action or provide such terms, considering in each case the relative interest of each party (including its own interest) to such conflict, agreement, transaction or situation and the benefits and burdens relating to
such interests, any customary or accepted industry practices, and any applicable generally accepted accounting practices or principles. In the absence of bad faith by the Indemnified Person, the resolution, action or term so made, taken or provided
by the Indemnified Person shall not constitute a breach of this Declaration or any other agreement contemplated herein or of any duty or obligation of the Indemnified Person at law or in equity or otherwise.
 (c)Whenever in this Declaration an Indemnified Person is permitted or required to make a decision:
 (i)in its "discretion" or under a grant of similar authority, the Indemnified
Person shall be entitled to consider such interests and factors as it desires, including its own interests, and shall have no duty or obligation to give any consideration to any interest of or factors affecting the Trust or any other Person; or

(ii)in its "good faith" or under another express standard, the Indemnified Person shall act under such express standard and shall not be subject to any other or different standard imposed by this Declaration or by
applicable law.
   Section 10.4.Indemnification. (a) (i) The Sponsor shall indemnify, to the full extent permitted by law, any Trust Indemnified Person who was or is a party or is threatened to be
made a party to any threatened, pending or completed action, suit or proceeding, whether civil, criminal, administrative or investigative (other than an action by or in the right of the Trust) by reason of the fact that he is or was a Trust
Indemnified Person against expenses (including reasonable attorneys' fees and expenses), judgments, fines and amounts paid in settlement actually and reasonably incurred by him in connection with such action, suit or proceeding if he 54
  

 
 acted in good faith and in a manner he reasonably believed to be in or not opposed to the best interests of the Trust, and, with respect to any criminal action or proceeding, had no reasonable cause to
believe his conduct was unlawful. The termination of any action, suit or proceeding by judgment, order, settlement, conviction, or upon a plea of nolo contendere or its equivalent, shall not, of itself, create a presumption that the Trust
Indemnified Person did not act in good faith and in a manner which he reasonably believed to be in or not opposed to the best interests of the Trust, and, with respect to any criminal action or proceeding, had reasonable cause to believe that his
conduct was unlawful.
 (ii)The Sponsor shall indemnify, to the full extent permitted by law, any Trust Indemnified Person who was or is a party or is threatened to be made a party to any threatened, pending or completed
action or suit by or in the right of the Trust to procure a judgment in its favor by reason of the fact that he is or was a Trust Indemnified Person against expenses (including reasonable attorneys' fees and expenses) actually and reasonably
incurred by him in connection with the defense or settlement of such action or suit if he acted in good faith and in a manner he reasonably believed to be in or not opposed to the best interests of the Trust and except that no such indemnification
shall be made in respect of any claim, issue or matter as to which such Trust Indemnified Person shall have been adjudged to be liable to the Trust unless and only to the extent that the Court of Chancery of Delaware or the court in which such
action or suit was brought shall determine upon application that, despite the adjudication of liability but in view of all the circumstances of the case, such person is fairly and reasonably entitled to indemnity for such expenses which such Court
of Chancery or such other court shall deem proper.
 (iii)To the extent that a Trust Indemnified Person shall be successful on the merits or otherwise (including dismissal of an action without prejudice or the settlement
of an action without admission of liability) in defense of any action, suit or proceeding referred to in paragraphs (i) and (ii) of this Section 10.4(a), or in defense of any claim, issue or matter therein, he shall be indemnified, to the full
extent permitted by law, against expenses (including attorneys' fees) actually and reasonably incurred by him in connection therewith.
 (iv)Any indemnification under paragraphs (i) and (ii) of this Section 10.4(a)
(unless ordered by a court) shall be made by the Sponsor only as authorized in the specific case upon a determination that indemnification of the Trust Indemnified Person is proper in the circumstances because he has met the applicable standard of
conduct set forth in paragraphs (i) and (ii). Such determination shall be made (1) by the Administrative Trustees by a majority vote of a quorum consisting of such Administrative Trustees who were not parties to such action, suit or proceeding, (2)
if such a quorum is not obtainable, or, even if obtainable, if a Quorum of disinterested Administrative Trustees so directs, by independent legal counsel in a written opinion, or (3) by the Common Security Holder of the Trust.
 (v)Expenses (including reasonable attorneys' fees and expenses) incurred by a Trust Indemnified Person in defending a civil, criminal, administrative or investigative action, suit or proceeding referred to in paragraphs (i)
and (ii) of this Section 10.4(a) shall be paid by the Sponsor in advance of the final disposition of such action, suit or proceeding upon receipt of an undertaking by or on behalf of such Trust Indemnified Person to repay such amount if it shall

 55
  

 
 ultimately be determined that he is not entitled to be indemnified by the Sponsor as authorized in this Section 10.4(a). Notwithstanding the foregoing, no advance shall
be made by the Sponsor if a determination is reasonably and promptly made (i) by the Administrative Trustees by a majority vote of a Quorum of disinterested Administrative Trustees, (ii) if such a Quorum is not obtainable, or, even if obtainable, if
a Quorum of disinterested Administrative Trustees so directs, by independent legal counsel in a written opinion or (iii) the Common Security Holder of the Trust, that, based upon the facts known to the Administrative Trustees, counsel or the Common
Security Holder at the time such determination is made, such Trust Indemnified Person acted in bad faith or in a manner that such person did not believe to be in or not opposed to the best interests of the Trust, or, with respect to any criminal
proceeding, that such Trust Indemnified Person believed or had reasonable cause to believe his conduct was unlawful. In no event shall any advance be made in instances where the Administrative Trustees, independent legal counsel or Common Security
Holder reasonably determine that such person deliberately breached his duty to the Trust or its Common or Capital Security Holders.
 (vi)The indemnification and advancement of expenses provided by, or granted pursuant
to, the other paragraphs of this Section 10.4(a) shall not be deemed exclusive of any other rights to which those seeking indemnification and advancement of expenses may be entitled under any agreement, vote of stockholders or disinterested
directors of the Sponsor or Capital Security Holders of the Trust or otherwise, both as to action in his official capacity and as to action in another capacity while holding such office. All rights to indemnification under this Section 10.4(a) shall
be deemed to be provided by a contract between the Sponsor and each Trust Indemnified Person who serves in such capacity at any time while this Section 10.4(a) is in effect. Any repeal or modification of this Section 10.4(a) shall not affect any
rights or obligations then existing.
 (vii)The Sponsor or the Trust may purchase and maintain insurance on behalf of any Person who is or was a Trust Indemnified Person against any liability asserted against him and
incurred by him in any such capacity, or arising out of his status as such, whether or not the Sponsor would have the power to indemnify him against such liability under the provisions of this Section 10.4(a).
 (viii)For purposes of this Section 10.4(a), references to "the Trust" shall include, in addition to the resulting or surviving entity, any constituent entity (including any constituent of a constituent) absorbed in a
consolidation or merger, so that any Person who is or was a director, trustee, officer or employee of such constituent entity, or is or was serving at the request of such constituent entity as a director, trustee, officer, employee or agent of
another entity, shall stand in the same position under the provisions of this Section 10.4(a) with respect to the resulting or surviving entity as he would have with respect to such constituent entity if its separate existence had continued.
 (ix)The indemnification and advancement of expenses provided by, or granted pursuant to, this Section 10.4(a) shall, unless otherwise provided when authorized or ratified, continue as to a Person who has ceased to be a Trust
Indemnified Person and shall inure to the benefit of the heirs, executors and administrators of such a Person.
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 (b)The Sponsor agrees to indemnify the (i) Property
Trustee, (ii) the Delaware Trustee, (iii) any Affiliate of the Property Trustee or the Delaware Trustee, and (iv) any officers, directors, shareholders, members, partners, employees, representatives, custodians, nominees or agents of the Property
Trustee or the Delaware Trustee (each of the Persons in (i) through (iv) being referred to as a "Fiduciary Indemnified Person") for, and to hold each Fiduciary Indemnified Person harmless against, any and all loss, liability, damage, claim or
expense including taxes (other than taxes based on the income of such Fiduciary Indemnified Person) incurred without negligence or bad faith on its part, arising out of or in connection with the acceptance or administration of the trust or trusts
hereunder, including the costs and expenses (including reasonable legal fees and expenses) of defending itself against or investigating any claim or liability in connection with the exercise or performance of any of its powers or duties hereunder.
The obligation to indemnify as set forth in this Section 10.4(b) shall survive the resignation or removal of the Property Trustee or the Delaware Trustee, as the case may be, and the termination of this Declaration.
 Section 10.5.Outside Businesses. The Sponsor, the Delaware Trustee and the Property Trustee (subject to Section 5.3(c)) may engage in or possess an interest in other business ventures of any nature or description,
independently or with others, similar or dissimilar to the business of the Trust, and the Trust and the Holders shall have no rights by virtue of this Declaration in and to such independent ventures or the income or profits derived therefrom, and
the pursuit of any such venture, even if competitive with the business of the Trust, shall not be deemed wrongful or improper. None of the Sponsor, the Delaware Trustee or the Property Trustee shall be obligated to present any particular investment
or other opportunity to the Trust even if such opportunity is of a character that, if presented to the Trust, could be taken by the Trust, and the Sponsor, the Delaware Trustee and the Property Trustee shall have the right to take for its own
account (individually or as a partner or fiduciary) or to recommend to others any such particular investment or other opportunity. The Delaware Trustee and the Property Trustee may engage or be interested in any financial or other transaction with
the Sponsor or any Affiliate of the Sponsor, or may act as depositary for, trustee or agent for, or act on any committee or body of holders of, securities or other obligations of the Sponsor or its Affiliates.
 Section
10.6.Compensation; Fees. The Sponsor agrees:
 (a)to pay to the Trustees from time to time mutually agreed upon 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); and
 (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 Declaration (including the reasonable compensation and the expenses and disbursements of their respective agents and counsel),
except any such expense, disbursement or advance as may be attributable to its negligence or bad faith.
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 The provisions of this
Section 10.6 shall survive the dissolution of the Trust and the termination of this Declaration and the removal or resignation of any Trustee. No Trustee may claim any lien or charge on any property of the Trust as a result of any amount due
pursuant to this Section 10.6.
  Article XI
 
 Accounting
  Section 11.1.Fiscal Year. The fiscal year ("Fiscal Year") of the Trust shall be the calendar year, or such
other year as is required by the Code or Treasury Regulations.
 Section 11.2.Certain Accounting Matters. (a) At all times during the existence of the Trust, the Administrative Trustees shall keep, or cause to be
kept, full books of account, records and supporting documents, which shall reflect in reasonable detail, each transaction of the Trust. The books of account shall be maintained on the accrual method of accounting, in accordance with United States
generally accepted accounting principles, consistently applied. The Trust shall use the accrual method of accounting for United States federal income tax purposes. The books of account and the records of the Trust shall be examined by and reported
upon as of the end of each Fiscal Year of the Trust by a firm of independent certified public accountants selected by the Administrative Trustees.
 (b)The Administrative Trustees shall cause to be prepared and delivered
to the Property Trustee such documents, reports and information necessary for the Property Trustee to comply with Section 2.3 of this Declaration.
 (c)The Administrative Trustees shall cause to be duly prepared and
delivered to each of the Holders, any annual United States federal income tax information statement, required by the Code and the Treasury Regulations, containing such information with regard to the Securities held by each Holder as is required by
the Code and the Treasury Regulations. Notwithstanding any right under the Code to deliver any such statement at a later date, the Administrative Trustees shall endeavor to deliver all such information statements within 30 days after the end of each
Fiscal Year of the Trust.
 (d)The Administrative Trustees shall cause to be duly prepared and filed with the appropriate taxing authority, an annual United States federal income tax return, on a Form 1041 or such other
form required by United States federal income tax law, and any other annual income tax returns required to be filed by the Administrative Trustees on behalf of the Trust with any state or local taxing authority.
 Section
11.3.Banking. The Trust shall maintain one or more bank accounts in the name and for the sole benefit of the Trust; provided, however, that all payments of funds in respect of the Debentures held by the Property Trustee shall be made
directly to the Property Trustee Account and no other funds of the Trust shall be deposited in the Property Trustee Account. The sole signatories for such accounts shall be designated by the Administrative Trustees; provided,
  58
  

 
  however, that the Property Trustee shall designate the signatories for the Property Trustee Account.
 Section 11.4.Withholding.
The Trust and the Administrative Trustees shall comply with all withholding requirements under United States federal, state and local law. The Trust shall request, and the Holders shall provide to the Trust, such forms or certificates as are
necessary to establish an exemption from withholding with respect to each Holder, and any representations and forms as shall reasonably be requested by the Trust to assist it in determining the extent of, and in fulfilling, its withholding
obligations. The Administrative Trustees shall file required forms with applicable jurisdictions and, unless an exemption from withholding is properly established by a Holder, shall remit amounts withheld with respect to the Holder to applicable
jurisdictions. To the extent that the Trust is required to withhold and pay over any amounts to any authority with respect to Distributions or allocations to any Holder, the amount withheld shall be deemed to be a Distribution in the amount of the
withholding to the Holder. In the event of any claimed over withholding, Holders shall be limited to an action against the applicable jurisdiction. If the amount required to be withheld was not withheld from actual Distributions made, the Trust may
reduce subsequent Distributions by the amount of such withholding.
  Article XII
 
 Amendments and Meetings
  Section 12.1.Amendments. (a) Except as otherwise provided in this
Declaration or by any applicable terms of the Securities, this Declaration may only be amended by a written instrument approved and executed by:
 (i)the Administrative Trustees (or if there are more than two
Administrative Trustees a majority of the Administrative Trustees);
 (ii)if the amendment affects the rights, powers, duties, obligations or immunities of the Property Trustee, the Property Trustee; and
 (iii)if the amendment affects the rights, powers, duties, obligations or immunities of the Delaware Trustee, the Delaware Trustee.
   (b)No amendment shall be made, and any such
purported amendment shall be void and ineffective:
 (i)unless the Property Trustee shall have first received:
 (A)an Officers' Certificate from each of the Trust and
the Sponsor that such amendment is permitted by, and conforms to, the terms of this Declaration (including the terms of the Securities); and
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 (B)an Opinion of Counsel (who may be counsel to the Sponsor or the Trust) that such amendment is permitted by, and conforms to, the terms of this Declaration (including the terms of the Securities),
  
  provided, however, that neither the Property Trustee nor the Delaware Trustee shall be required to sign any such amendment which adversely affects the rights, powers, duties, obligations or immunities of the
Property Trustee or the Delaware Trustee, as the case may be, and
 (ii)to the extent the result of such amendment would be to:
 (A)cause the Trust to fail to
continue to be classified for purposes of United States federal income taxation as a grantor trust;
 (B)reduce or otherwise adversely affect the powers of the Property Trustee in contravention of the Trust Indenture
Act; or
 (C)cause the Trust to be deemed to be an Investment Company required to be registered under the Investment Company Act;
     (c)At such time after the Trust
has issued any Securities that remain outstanding, any amendment that would adversely affect the rights, privileges or preferences of any Holder of Securities may be effected only with such additional requirements as may be set forth in the terms of
such Securities;
 (d)Section 9.1(d) and this Section 12.1 shall not be amended without the consent of all of the Holders of the Securities;
 (e)Article Four shall not be amended without the
consent of the Holders of a Majority in liquidation amount of the Common Securities;
 (f)The rights of the Holders of the Common Securities under Article Five to increase or decrease the number of, and appoint and
remove Trustees shall not be amended without the consent of the Holders of a Majority in liquidation amount of the Common Securities; and
 (g)Notwithstanding Section 12.1(c), this Declaration may be amended without the
consent of the Holders of the Securities to:
 (i)cure any ambiguity, correct or supplement any provision in this Declaration that may be inconsistent with any other provision of this Declaration or to make
any other provisions with respect to matters or questions arising under this Declaration which shall not be inconsistent with the other provisions of the Declaration;
   (ii)to modify, eliminate or add to
any provisions of the Declaration 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 Securities are 
 60
  

 
 outstanding or to ensure that the Trust will not be required to register as an Investment Company under the Investment Company Act;
 (iii)to modify, eliminate or
add any provisions of the Declaration to such extent as shall be necessary to enable the Trust and the Sponsor to conduct an Exchange Offer in the manner contemplated by the Registration Rights Agreement; or
 (iv)to
make any changes that would provide any additional rights and benefits to Holders or that does not adversely affect the legal rights herein of any such Holders;
   provided, however, that in the case of
clauses (i) and (iii), such action shall not adversely affect in any material respect the interests of the Holders, and any amendments of this Declaration shall become effective when notice thereof is given to the Holders.
 Section 12.2.Meetings of the Holders; Action by Written Consent. (a) Meetings of the Holders of any class of Securities may be called at any time by the Administrative Trustees (or as provided in the terms of the
Securities) to consider and act on any matter on which Holders of such class of Securities are entitled to act under the terms of this Declaration, the terms of the Securities or the rules of any stock exchange on which the Capital Securities are
listed or admitted for trading. The Administrative Trustees shall call a meeting of the Holders of such class if directed to do so by the Holders of at least 10% in liquidation amount of such class of Securities. Such direction shall be given by
delivering to the Administrative Trustees one or more notices in writing stating that the signing Holders of Securities wish to call a meeting and indicating the general or specific purpose for which the meeting is to be called. Any Holders calling
a meeting shall specify in writing the Security Certificates held by the Holders exercising the right to call a meeting and only those Securities specified shall be counted for purposes of determining whether the required percentage set forth in the
second sentence of this paragraph has been met.
 (b)Except to the extent otherwise provided in the terms of the Securities, the following provisions shall apply to meetings of Holders of Securities:
 (i)notice of any such meeting shall be given to all the Holders of Securities having a right to vote thereat at least seven days and not more than 60 days before the date of such meeting. Whenever a vote, consent or approval
of the Holders is permitted or required under this Declaration or the rules of any stock exchange on which the Capital Securities are listed or admitted for trading, such vote, consent or approval may be given at a meeting of the Holders. Any action
that may be taken at a meeting of the Holders of Securities may be taken without a meeting if a consent in writing setting forth the action so taken is signed by the Holders of Securities owning not less than the minimum amount of Securities in
liquidation amount that would be necessary to authorize or take such action at a meeting at which all Holders having a right to vote thereon were present and voting. Prompt notice of the taking of action without a meeting shall be given to the
Holders entitled to vote who have not consented in writing. The Administrative Trustees may specify that any written ballot submitted to the Security Holders for the purpose of 
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 taking any action without a meeting shall be returned to the Trust within the time specified by the Administrative Trustees;
 (ii)each Holder may authorize any Person to act for it
by proxy on all matters in which a Holder is entitled to participate, including waiving notice of any meeting, or voting or participating at a meeting. No proxy shall be valid after the expiration of 11 months from the date thereof unless otherwise
provided in the proxy. Every proxy shall be revocable at the pleasure of the Holder of Securities executing it. Except as otherwise provided herein, all matters relating to the giving, voting or validity of proxies shall be governed by the General
Corporation Law of the State of Delaware relating to proxies, and judicial interpretations thereunder, as if the Trust were a Delaware corporation and the Holders were stockholders of a Delaware corporation;
 (iii)each
meeting of the Holders shall be conducted by the Administrative Trustees or by such other Person that the Administrative Trustees may designate; and
 (iv)unless the Statutory Trust Act, this Declaration, the terms of
the Securities, the Trust Indenture Act or the listing rules of any stock exchange on which the Capital Securities are then listed or trading, otherwise provides, the Administrative Trustees, in their sole discretion, shall establish all other
provisions relating to meetings of Holders, including notice of the time, place or purpose of any meeting at which any matter is to be voted on by any Holders of Securities, waiver of any such notice, action by consent without a meeting, the
establishment of a record date, quorum requirements, voting in person or by proxy or any other matter with respect to the exercise of any such right to vote.
    Article XIII
 
 Representations of Property
Trustee and Delaware Trustee
  Section 13.1.Representations and Warranties of Property Trustee. The Trustee that acts as initial Property Trustee represents and warrants to the Trust and to the Sponsor at the
date of this Declaration, and each Successor Property Trustee represents and warrants to the Trust and the Sponsor at the time of the Successor Property Trustee's acceptance of its appointment as Property Trustee that:
 (a)The Property Trustee is a Delaware banking corporation with trust powers and authority under the laws of the State of Delaware to execute and deliver, and to carry out and perform its obligations under the terms of, this
Declaration;
   (b)The execution, delivery and performance by the Property Trustee of the Declaration has been duly authorized by all necessary corporate action on the part of the Property Trustee. The
Declaration has been duly executed and delivered by the Property Trustee and constitutes a legal, valid and binding obligation of the Property Trustee, enforceable against it in accordance with its terms, subject to applicable bankruptcy, 
 62
  

 
 reorganization, moratorium, insolvency, and other similar laws affecting creditors' rights generally and to general principles of equity and the discretion of the
court (regardless of whether the enforcement of such remedies is considered in a proceeding in equity or at law);
 (c)The execution, delivery and performance of this Declaration by the Property Trustee does not conflict
with or constitute a breach of the charter or by-laws of the Property Trustee;
 (d)No consent, approval or authorization of, or registration with or notice to, any Delaware State or federal banking authority is required
for the execution, delivery or performance by the Property Trustee of this Declaration; and
 (e)The Property Trustee satisfies the qualifications set forth in Section 5.3(a).
   Section 13.2.Representations and Warranties of Delaware Trustee. The Trustee that acts as initial Delaware Trustee represents and warrants to the Trust and to the Sponsor at the date of this Declaration, and each
Successor Delaware Trustee represents and warrants to the Trust and the Sponsor at the time of the Successor Delaware Trustee's acceptance of its appointment as Delaware Trustee that:
 (a)The Delaware
Trustee is a duly organized Delaware banking corporation, validly existing and in good standing under the laws of the State of Delaware, with trust power and authority to execute and deliver, and to carry out and perform its obligations under the
terms of, this Declaration;
 (b)The execution, delivery and performance by the Delaware Trustee of this Declaration has been duly authorized by all necessary corporate action on the part of the Delaware Trustee. This
Declaration has been duly executed and delivered by the Delaware Trustee and constitutes a legal, valid and binding obligation of the Delaware Trustee, enforceable against it in accordance with its terms, subject to applicable bankruptcy,
reorganization, moratorium, insolvency, and other similar laws affecting creditors' rights generally and to general principles of equity and the discretion of the court (regardless of whether the enforcement of such remedies is considered in a
proceeding in equity or at law);
 (c)No consent, approval or authorization of, or registration with or notice to, any federal banking authority is required for the execution, delivery or performance by the Delaware
Trustee of this Declaration; and
 (d)The Delaware Trustee is a natural person who is a resident of the State of Delaware or, if not a natural person, an entity which has its principal place of business in the State of
Delaware.
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  Article XIV
 
 Registration Rights
  Section 14.1.Registration Rights
Agreement. The Holders of the Capital Securities, the Debentures and the Capital Securities Guarantee are entitled to the benefits of the Registration Rights Agreement.
  Article XV
 
 Miscellaneous
  Section 15.1.Notices. All notices provided for in this Declaration shall be in writing, duly signed by the party giving such notice, and shall be delivered, telecopied or mailed by first class mail, as follows:

(a)if given to the Trust or any Administrative Trustee, in care of the Administrative Trustees at the Trust's mailing address set forth below (or such other address as the Trust may give notice of to the
Holders and the Property Trustee):
 First Midwest Capital Trust I
 c/o First Midwest Bancorp, Inc.
 300 Park Boulevard, Suite 400
 Itasca, Illinois 60143
 Attention: Corporate Secretary

Telecopy: 630-875-7360
     (b)if given to the Delaware Trustee, at the Delaware Trustee's mailing address set forth below (or such other address as the Delaware Trustee may give notice of to the
Holders and the other Trustees):
 Wilmington Trust Company
 Rodney Square North
 1100 North Market Street
 Wilmington, Delaware 19890-0001
 Attention: Corporate Trust Administration

Telecopy: 302-636-4140
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 (c)if given to the Property Trustee, at the Property
Trustee's mailing address set forth below (or such other address as the Property Trustee may give notice of to the Holders and the other Trustees):
 Wilmington Trust Company
 Rodney Square North
 1100
North Market Street
 Wilmington, Delaware 19890-0001
 Attention: Corporate Trust Administration
 Telecopy: 302-636-4140
     (d)if given to the Holder of the Common Securities, at the
mailing address of the Sponsor set forth below (or such other address as the Holder of the Common Securities may give notice to the Trust and the Property Trustee):
 First Midwest Bancorp, Inc.
 300 Park
Boulevard, Suite 400
 Itasca, Illinois 60143
 Attention: Chief Financial Officer
 Telecopy: (630) 875-7360
     (e)if given to any other Holder, at the address set forth on the books and
records of the Trust.
   All such notices shall be deemed to have been given when received in person, telecopied with receipt confirmed, or mailed by first class mail, postage prepaid except that if a notice or
other document is refused delivery or cannot be delivered because of a changed address of which no notice was given, such notice or other document shall be deemed to have been delivered on the date of such refusal or inability to deliver.
 Section 15.2.Governing Law. This Declaration and the rights of the parties hereunder shall be governed by and interpreted in accordance with the laws of the State of Delaware and all rights and remedies shall be
governed by such laws without regard to principles of conflict of laws.
 Section 15.3.Intention of the Parties. It is the intention of the parties hereto that the Trust be classified for United States federal
income tax purposes as a grantor trust. The provisions of this Declaration shall be interpreted to further this intention of the parties.
 Section 15.4.Headings. Headings contained in this Declaration are
inserted for convenience of reference only and do not affect the interpretation of this Declaration or any provision hereof.
 Section 15.5.Successors and Assigns. Whenever in this Declaration any of the parties
hereto is named or referred to, the successors and assigns of such party shall be deemed to be included, and all covenants and agreements in this Declaration by the Sponsor and the Trustees shall bind and inure to the benefit of their respective
successors and assigns, whether so expressed.
 65
  

 
 Section 15.6.Partial Enforceability. If any provision of this Declaration, or the application of such
provision to any Person or circumstance, shall be held invalid, the remainder of this Declaration, or the application of such provision to Persons or circumstances other than those to which it is held invalid, shall not be affected thereby.
 Section 15.7.Counterparts. This Declaration may contain more than one counterpart of the signature page and this Declaration may be executed by the affixing of the signature of each of the Trustees to one of such
counterpart signature pages. All of such counterpart signature pages shall be read as though one, and they shall have the same force and effect as though all of the signers had signed a single signature page.
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 In Witness Whereof, the undersigned has caused these presents to be executed as of the day and year first above written.
  _____/s/ Michael L. Scudder
    Michael L. Scudder, as Administrative Trustee
   _____/s/ James P. Hotchkiss
    James P. Hotchkiss, as Administrative Trustee
   _____/s/ Steven Shapiro
    Steven H. Shapiro, as Administrative Trustee
 Wilmington Trust
Company, as Delaware Trustee
 By___/s/ K. Long
 Name: Kristin Long
 Title: Financial Services Officer
 Wilmington Trust Company, as Property Trustee

By ___/s/ K. Long
 Name: Kristin Long
 Title: Financial Services Officer
 First Midwest Bancorp, Inc., as Sponsor
 By
___/s/ John M. O'Meara
 Name: John M. O'Meara
 Title: President and Chief Executive Officer
  
         
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  Annex I
 
 Terms of
 6.95% Series A/Series B Capital Securities
 6.95% Common Securities
  Pursuant
to Section 7.1 of the Amended and Restated Declaration of Trust, dated as of November 18, 2003 (as amended from time to time, the "Declaration"), the designation, rights, privileges, restrictions, preferences and other terms and provisions of
the Securities are set out below (each capitalized term used but not defined herein has the meaning set forth in the Declaration or, if not defined in such Declaration, as defined in the Offering Memorandum referred to below in Section 2(c) of this
Annex I):
 1.Designation and Number.
      (a)Capital Securities. 125,000 Series A Capital Securities of the Trust and 125,000
Series B Capital Securities of the Trust, each series with an aggregate liquidation amount with respect to the assets of the Trust of One Hundred Twenty-Five Million dollars ($125,000,000) and each with a liquidation amount with respect to the
assets of the Trust of $1,000 per Security, are hereby designated for the purposes of identification only as "6.95% Series A Capital Securities" and "6.95% Series B Capital Securities," respectively (collectively, the "Capital Securities").
125,000 of the Series A Capital Securities are issuable at the Closing Time. The Series B Capital Securities are issuable pursuant to the Exchange Offer in the manner contemplated by the Registration Rights Agreement. The certificates evidencing the
Capital Securities shall be substantially in the form of Exhibit A-1 to the Declaration, with such changes and additions thereto or deletions therefrom as may be required by ordinary usage, custom or practice or to conform to the rules of any stock
exchange on which the Capital Securities are listed.
 (b)Common Securities. 3,866 Common Securities of the Trust with an aggregate liquidation amount with respect to the assets of the Trust of Three Million Eight
Hundred Sixty Six Thousand dollars ($3,866,000) and a liquidation amount with respect to the assets of the Trust of $1,000 per security, are hereby designated for the purposes of identification only as "6.95% Common Securities" (the "Common
Securities"). 3,866,000 of the Common Securities are issuable at the Closing Time. The certificates evidencing the Common Securities shall be substantially in the form of Exhibit A-2 to the Declaration, with such changes and additions thereto or
deletions therefrom as may be required by ordinary usage, custom or practice.
 2.Distributions.
      (a)Distributions payable on each
Security will be fixed at a rate per annum of 6.95% (the "Coupon Rate") of the liquidation amount of $1,000 per Security (the "Liquidation Amount"), such rate being the rate of interest payable on the Debentures to be held by the
Property Trustee. Distributions in arrears for more than one semi-annual period will bear 
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 additional distributions thereon compounded semi-annually at the Coupon Rate (to
the extent permitted by applicable law). Pursuant to the Registration Rights Agreement, in certain limited circumstances the Debenture Issuer will be required to pay Liquidated Damages (as defined in the Registration Rights Agreement) with respect
to the Debentures. The term "Distributions," as used herein, includes distributions of any such distributions and Liquidated Damages payable unless otherwise stated. A Distribution is payable only to the extent that payments are made in
respect of the Debentures held by the Property Trustee and to the extent the Property Trustee has funds on hand legally available therefor.
 (b)Distributions on the Securities will be cumulative, will accumulate from
the most recent date to which Distributions have been paid or duly provided for or, if no Distributions have been paid or duly provided for, from the Issue Date (as defined in the Indenture), and will be payable semi-annually in arrears on June 1
and December 1 of each year, commencing on June 1, 2004 (each, a "Distribution Date"), except as otherwise described below. Distributions will be computed on the basis of a 360-day year consisting of twelve 30-day months and for any period
less than a full calendar month on the basis of the actual number of days elapsed in such month. As long as no Event of Default has occurred and is continuing under the Indenture, the Debenture Issuer has the right under the Indenture to defer
payments of interest by extending the interest payment period at any time and from time to time on the Debentures for a period not exceeding 10 consecutive semi-annual periods, including the first such semi-annual period during such extension period
(each an "Extension Period"), during which Extension Period no interest shall be due and payable on the Debentures, provided that no Extension Period shall end on a day other than an Interest Payment Date on the Debentures or extend
beyond the Maturity Date of the Debentures. As a consequence of such deferral, Distributions will also be deferred. Despite such deferral, Distributions will continue to accumulate with additional Distributions thereon (to the extent permitted by
applicable law but not at a rate greater than the rate at which interest is then accruing on the Debentures) at the Coupon Rate compounded semi-annually during any such Extension Period. Prior to the termination of any such Extension Period, the
Debenture Issuer may further defer payments of interest by further extending such Extension Period; provided that such Extension Period, together with all such previous and further extensions within such Extension Period, may not exceed 10
consecutive semi-annual periods, including the first semi-annual period during such Extension Period, or extend beyond the Maturity Date of the Debentures. Upon the termination of any Extension Period and the payment of all amounts then due, the
Debenture Issuer may commence a new Extension Period, subject to the above requirements.
 (c)Distributions on the Securities will be payable to the Holders thereof as they appear on the books and records of the Trust on
the fifteenth day of the month which precedes the month in which the relevant Distribution Date occurs, which Distribution Dates correspond to the interest payment dates on the Debentures. Subject to any applicable laws and regulations and the
provisions of the Declaration, each such payment in respect of the Global Capital Securities will be made as described under the heading "Description of Capital Securities--Payment on the Capital Securities" in the Offering Memorandum dated November
10, 2003, of the Debenture Issuer and the Trust relating to the Securities and the Debentures. Payments in respect of Capital Securities held in certificated form will be made by check mailed to the Holder entitled thereto. The relevant record dates
for the Common Securities shall be the same as the record dates for the
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 Capital Securities. Distributions payable on any Securities that are not punctually paid on any
Distribution Date, as a result of the Debenture Issuer having failed to make a payment under the Debentures, will cease to be payable to the Holder on the relevant record date, and such defaulted Distributions will instead be payable to the Person
in whose name such Securities are registered on the special record date or other specified date determined in accordance with the Indenture. If any date on which Distributions are payable on the Securities is not a Business Day, then payment of the
Distribution 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), with the same force and effect as if made on such date.
 (d)In the event that there is any money or other property held by or for the Trust that is not accounted for hereunder, such property shall be distributed Pro Rata (as defined in Section 8 hereof) among the Holders of the
Securities.
 3.Liquidation Distribution Upon Dissolution. 
      In the event of any termination of the Trust or the Sponsor otherwise gives
notice of its election to liquidate the Trust pursuant to Section 8.1(a)(iii) of the Declaration, the Trust shall be liquidated by the Administrative Trustees as expeditiously as the Administrative Trustees determine to be possible by distributing,
after satisfaction of liabilities to creditors of the Trust as provided by applicable law, to the Holders a Like Amount (as defined below) of the Debentures, in which event such Holders will be entitled to receive out of the assets of the Trust
legally available for distribution to Holders, after satisfaction of liabilities to creditors of the Trust as provided by applicable law, an amount equal to the aggregate of the liquidation amount of $1,000 per Security plus accumulated and unpaid
Distributions thereon to the date of payment (such amount being the "Liquidation Distribution").
 "Like Amount" means (i) with respect to a redemption of the Securities, Securities having a Liquidation Amount
equal to the principal amount of Debentures to be paid in accordance with their terms and (ii) with respect to a distribution of Debentures upon liquidation of the Trust, Debentures having a principal amount equal to the Liquidation Amount of the
Securities of the Holder to whom such Debentures are distributed.
 If, upon any such liquidation, the Liquidation Distribution can be paid only in part because the Trust has insufficient assets on hand legally available to pay
in full the aggregate Liquidation Distribution, then the amounts payable directly by the Trust on the Securities shall be paid on a Pro Rata basis.
 4.Redemption and Distribution.
 
    (a)Upon the prepayment of the Debentures in whole or in part, at maturity or upon early redemption (either at the option of the Debenture Issuer or pursuant to a Special Event, as described
below) (other than following the distribution of the Debentures to the Holders), the proceeds from such redemption or prepayment shall be simultaneously applied by the Property Trustee (subject to the Property Trustee having received notice no later
than 45 days prior to such 
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 redemption or prepayment) to redeem a Like Amount of the Securities at a redemption price equal to (i) in the case of the repayment of the
Debentures at maturity, the Maturity Redemption Price (as defined below), (ii) in the case of the optional redemption of the Debentures upon the occurrence and continuation of a Special Event, the Special Event Redemption Price (as defined below)
and (iii) in the case of the optional redemption of the Debentures other than as a result of the occurrence and continuance of a Special Event, the Optional Redemption Price (as defined below). The Maturity Redemption Price, the Special Event
Redemption Price and the Optional Redemption Price are referred to collectively as the "Redemption Price." Holders will be given not less than 30 nor more than 60 days notice of such redemption.
 (b)The
"Maturity Redemption Price," with respect to a redemption of Securities, shall mean an amount equal to the principal of and accrued and unpaid interest on the Debentures as of the Maturity Date (as defined in the Indenture) thereof.
 (c)In the case of an optional redemption, if fewer than all the outstanding Securities are to be so redeemed, the Securities will be redeemed Pro Rata and the Securities to be redeemed will be determined as described in
Section 4(f)(ii) below.
 The Debenture Issuer shall have the right (subject to the conditions in the Indenture) to elect to redeem the Debentures in whole or in part at any time and from time to time, prior to the Maturity
Date, subject to any required regulatory approval, upon not less than 30 days and not more than 60 days notice, at the Optional Redemption Price and, simultaneous with such redemption, to cause a Like Amount of the Securities to be redeemed by the
Trust at the Optional Redemption Price on a Pro Rata basis. "Optional Redemption Price" shall mean, with respect to any redemption of the Securities, an amount in cash equal to the greater of (i) 100% of the principal of a Like Amount to be
redeemed or (ii) the sum, as determined by a Quotation Agent (as defined in the Indenture), of the present values of the principal amount payable with respect to such optional redemption of a Like Amount of Debentures on the Maturity Date, together
with scheduled payments of interest on the Debentures from the redemption date to and including the Maturity Date, discounted to the redemption date on a semi-annual basis (assuming a 360-day year consisting of twelve 30-day months) at the Adjusted
Treasury Rate (as defined in the Indenture), plus, in each case, any accrued and unpaid interest thereon, including Compounded Interest and Additional Interest (as defined in the Indenture), if any, to the date of such redemption.
 (d) If at any time a Tax Event, a Regulatory Capital Event or an Investment Company Event (each as defined below, and each a "Special Event") occurs, the Debenture Issuer shall have the right (subject to the conditions
set forth in the Indenture) at any time prior to the Maturity Date, upon not less than 30 nor more than 60 days notice, to redeem the Debentures in whole, but not in part, within the 90 days following the occurrence of such Special Event (the "90
Day Period"), and, simultaneous with such redemption, to cause a Like Amount of the Securities to be redeemed by the Trust at the Special Event Redemption Price on a Pro Rata basis.
 "Tax Event" means the receipt by
the Sponsor and the Administrative Trustees of an opinion of independent tax counsel experienced in such matters to the effect that, as a result of 
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 any amendment to, or
change (including any announced prospective change) in, the laws or any regulations promulgated 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 Issue Date, there is more than an insubstantial risk that
(i) the Trust is, or will be within 90 days of the date of such opinion, subject to United States federal income tax with respect to income received or accrued on the Debentures, (ii) interest payable by the Debenture Issuer on the Debentures is
not, or within 90 days of the date of such opinion, will not be, deductible by the Debenture Issuer, in whole or in part, for United States federal income tax purposes, or (iii) the Trust is, or will be within 90 days of the date of such opinion,
subject to more than a de minimis amount of other taxes, duties or other governmental charges.
 "Investment Company Event" means the receipt by the Sponsor and the Administrative Trustee of an opinion of independent
counsel having a recognized tax and securities law practice 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 1940 Act Law"), there is more than an insubstantial risk that the Trust is or will be considered an "investment company" that is required to be registered under the Investment Company
Act, which Change in 1940 Act Law becomes effective on or after the date of original issuance of the Capital Securities.
 "Regulatory Capital Event" means the receipt by the Debenture Issuer of an opinion of independent
bank regulatory counsel experienced in such matters to the effect that, as a result of (a) any amendment to, or change (including any announced prospective change) in, the laws (or any regulations thereunder) of the United States or any rules,
guidelines or policies of the Federal Reserve Board or (b) any official administrative pronouncement or judicial decision interpreting or applying such laws or regulations, which amendment or change is effective or such pronouncement or decision is
announced on or after the Issue Date, there is more than an insubstantial risk that the Debenture Issuer will not be entitled to treat the Capital Securities (or any substantial portion thereof) as Tier 1 regulatory capital (or the then equivalent
thereof) for purposes of capital adequacy guidelines of the Federal Reserve, as then in effect and applicable to the Debenture Issuer or any of its subsidiaries; provided, however, that the distribution of the Debentures in connection with a
termination of the Trust by the Debenture Issuer shall not in and of itself constitute a Regulatory Capital Event.
 "Special Event Redemption Price" shall mean, with respect to a redemption of Securities, a price equal
to the greater of (i) 100% of the principal of a Like Amount of Debentures to be redeemed or (ii) the sum, as determined by a Quotation Agent, of the present values of the principal amount payable with respect to such Special Event redemption of a
Like Amount of the Debentures on the Maturity Date, together with scheduled payments of interest on the Debentures from the redemption date to and including the Maturity Date, discounted to the redemption date on a semi-annual basis (assuming a
360-day year consisting of twelve 30-day months) at the Adjusted Treasury Rate, plus, in either case, accumulated and unpaid interest thereon, if any, to the date of such redemption.
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 (d)On and from the date fixed by the Administrative Trustees for any distribution of Debentures and liquidation of the Trust: (i) the Securities will no longer be deemed to be outstanding, (ii) the Clearing Agency or its nominee
(or any successor Clearing Agency or its nominee), as the Holder of the Capital Securities, will receive a registered global certificate or certificates representing the Debentures to be delivered upon such distribution and any certificates
representing Securities not held by the Clearing Agency or its nominee (or any successor Clearing Agency or its nominee) will be deemed to represent Debentures having a principal amount equal to the liquidation amount of such Securities and bearing
accrued and unpaid interest in an amount equal to the accumulated and unpaid distributions on such Securities as of that date until such certificates are presented to the Administrative Trustees or their agent for cancellation, whereupon the
Debenture Issuer will issue to such Holder, and the Debenture Trustee will authenticate, a certificate representing such Debentures.
 (e)The Trust may not redeem fewer than all the outstanding Securities unless all
accumulated and unpaid Distributions have been paid on all Securities for all semi-annual Distribution periods terminating on or before the date of redemption.
 (f)The procedure with respect to redemptions or
distributions of Debentures shall be as follows:
 (i)Notice of any redemption of, or notice of distribution of Debentures in exchange for, the Securities (a "Redemption/Distribution Notice") will be
given by the Trust by mail to each Holder of Securities to be redeemed or exchanged not fewer than 30 nor more than 60 days before the date fixed for redemption or exchange thereof which, in the case of a redemption, will be the date fixed for
redemption of the Debentures. For purposes of the calculation of the date of redemption or exchange and the dates on which notices are given pursuant to this Section 4(f)(i), a Redemption/Distribution Notice shall be deemed to be given on the day
such notice is first mailed by first-class mail, postage prepaid, to Holders. Each Redemption/Distribution Notice shall be addressed to the Holders of Securities at the address of each such Holder appearing in the books and records of the Trust. No
defect in the Redemption/Distribution Notice or in the mailing of either thereof with respect to any Holder shall affect the validity of the redemption or exchange proceedings with respect to any other Holder.
 (ii)In
the event that fewer than all the outstanding Securities are to be redeemed, the Securities to be redeemed shall be redeemed Pro Rata from each Holder of Securities, provided that, in respect of Capital Securities registered in the name of
and held of record by the Clearing Agency or its nominee (or any successor Clearing Agency or its nominee) or any nominee, the distribution of the proceeds of such redemption will be made to the Clearing Agency and disbursed by such Clearing Agency
in accordance with the procedures applied by such agency or nominee.
   (iii)If Securities are to be redeemed and the Trust gives a Redemption/Distribution Notice, then (A) with respect to Capital Securities
issued in book-entry form, by 12:00 noon, New York City time, on the redemption date, provided that the Debenture Issuer has paid the Property Trustee a sufficient amount of cash in 
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connection with the related redemption or maturity of the Debentures by 10:00 a.m., New York City time, on the Maturity Date or the date of redemption, as the case requires, the Property Trustee will deposit
irrevocably with the Clearing Agency or its nominee (or successor Clearing Agency or its nominee) funds sufficient to pay the applicable Redemption Price with respect to such Capital Securities and will give the Clearing Agency irrevocable
instructions and authority to pay the Redemption Price to the relevant Clearing Agency Participants, and (B) with respect to Capital Securities issued in certificated form and Common Securities, provided that the Debenture Issuer has paid the
Property Trustee a sufficient amount of cash in connection with the related redemption or maturity of the Debentures, the Property Trustee will pay the relevant Redemption Price to the Holders by check mailed to the address of the relevant Holder
appearing on the books and records of the Trust on the redemption date. If a Redemption/Distribution Notice shall have been given and funds deposited as required, if applicable, then immediately prior to the close of business on the date of such
deposit, or on the redemption date, as applicable, Distributions will cease to accumulate on the Securities so called for redemption and all rights of Holders of Securities so called for redemption will cease, except the right of the Holders of such
Securities to receive the Redemption Price, but without interest on such Redemption Price, and such Securities shall cease to be outstanding.
 (iv)Payment of accumulated and unpaid Distributions on the Redemption Date
of the Securities will be subject to the rights of Holders of Securities on the close of business on a regular record date in respect of a Distribution Date occurring on or prior to such Redemption Date.
 Neither the
Administrative Trustees nor the Trust shall be required to register or cause to be registered the transfer of (i) any Securities beginning on the opening of business 15 days before the day of mailing of a notice of redemption and ending at the close
of business on the day of such mailing or (ii) any Securities selected for redemption except the unredeemed portion of any Security being redeemed. If any date fixed for redemption of Securities is not a Business Day, then payment of the Redemption
Price payable on such date will be made on the next succeeding day that is a Business Day (and without any interest or other payment in respect of any such delay), with the same force and effect as if made on such date fixed for redemption. If
payment of the Redemption Price in respect of any Securities is improperly withheld or refused and not paid either by the Property Trustee or, with respect to the Capital Securities, by the Sponsor as guarantor pursuant to the relevant Capital
Securities Guarantee, Distributions on such Securities will continue to accumulate from the original redemption date to the actual date of payment, in which case the actual payment date will be considered the date fixed for redemption for purposes
of calculating the redemption price.
 (v)Redemption/Distribution Notices shall be sent by the Property Trustee on behalf of the Trust to (A) in respect of the Capital Securities, the Clearing Agency or its nominee (or
any successor Clearing Agency or its nominee) if the Global Certificates have been issued or, if Definitive Capital Security Certificates have been issued, to the Holder thereof, and (B) in respect of the Common Securities to the Holder thereof.

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 (vi)Subject to the foregoing and applicable law (including, without limitation, United States federal securities laws and banking laws),
provided, the acquiror is not the Holder of the Common Securities or the obligor under the Indenture, the Sponsor or any of its subsidiaries may at any time and from time to time purchase outstanding Capital Securities by tender, in the open
market or by private agreement.
 5.Voting Rights--Capital Securities.
      (a)Except as provided under Sections 5(b) and 7 and as otherwise
required by law and the Declaration, the Holders of the Capital Securities will have no voting rights.
 (b)So long as any Debentures are held by the Property Trustee, the Trustees shall not, without, in each case,
obtaining the prior approval of the Holders of a Majority in liquidation amount of all outstanding Capital Securities, (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 such Debenture Trustee with respect to the Debentures, (ii) waive any past default that is waivable under Section 5.07 of the Indenture, (iii) exercise any right to rescind or annul a declaration of acceleration of
the maturity of the principal of the Debentures or (iv) consent to any amendment, modification or termination of the Indenture or the Debentures, where such consent shall be required unless the Trust shall have received an opinion of an independent
tax counsel experienced in such matters to the effect that such modification will not cause more than an insubstantial risk that for United States federal income tax purposes the Trust will not be classified as a grantor trust; provided,
however, that where a consent under the Indenture would require the consent of each holder of Debentures affected thereby, no such consent shall be given by the Property Trustee without the prior approval of each Holder of the Capital
Securities. The Trustees shall not revoke any action previously authorized or approved by a vote of the Holders of the Capital Securities except by subsequent vote of such Holders. Subject to Section 2.7 of the Declaration, the Property Trustee
shall notify each Holder of Capital Securities of any notice of default with respect to the Debentures. In addition to obtaining the foregoing approvals of such Holders of the Capital Securities, prior to taking any of the foregoing actions, the
Trustees shall obtain an Opinion of Counsel experienced in such matters to the effect that the Trust will not be classified as an association taxable as a corporation for United States federal income tax purposes on account of such action.
 If an Event of Default under the Declaration has occurred and is continuing and such event is attributable to the failure of the Debenture Issuer to pay principal of or premium, if any, or interest on the Debentures on the due date
(or in the case of redemption, on the redemption date), then a Holder of Capital Securities may directly institute a proceeding for enforcement of payment to such Holder of the principal of or premium, if any, or interest on a Like Amount of
Debentures (a "Direct Action") on or after the respective due date specified in the Debentures. In connection with such Direct Action, the rights of the Common Securities Holder will be subrogated to the rights of such Holder of Capital
Securities to the extent of any payment made by the Debenture Issuer to such Holder of Capital Securities in such Direct Action. Except as provided in the preceding sentences and in Section 3.8(e) of the Declaration, the Holders of Capital
Securities will not be able to exercise directly any other remedy available to the holders of the Debentures.
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 Any approval or direction of Holders of Capital Securities
may be given at a separate meeting of Holders of Capital Securities convened for such purpose, at a meeting of all of the Holders of Securities in the Trust or pursuant to written consent. The Administrative Trustees will cause a notice of any
meeting at which Holders of Capital Securities are entitled to vote, or of any matter upon which action by written consent of such Holders is to be taken, to be mailed to each Holder of record of Capital Securities. Each such notice will include a
statement setting forth (i) the date of such meeting or the date by which such action is to be taken, (ii) a description of any resolution proposed for adoption at such meeting on which such Holders are entitled to vote or of such matter upon which
written consent is sought and (iii) instructions for the delivery of proxies or consents.
 No vote or consent of the Holders of the Capital Securities will be required for the Trust to redeem and cancel Capital Securities or to
distribute the Debentures in accordance with the Declaration and the terms of the Securities.
 Notwithstanding that Holders of Capital Securities are entitled to vote or consent under any of the circumstances described above,
any of the Capital Securities that are owned by the Sponsor or any Affiliate of the Sponsor shall not be entitled to vote or consent and shall, for purposes of such vote or consent, be treated as if they were not outstanding.
 6.Voting Rights--Common Securities.
      (a)Except as provided under Sections 6(b), 6(c) and 7 or as otherwise required by law and the Declaration, the
Holders of the Common Securities will have no voting rights.
 (b)Unless an Event of Default shall have occurred and be continuing, any Trustee may be removed at any time by the Holder of the Common Securities. If an
Event of Default has occurred and is continuing, the Property Trustee and the Delaware Trustee may be removed by the Holders of a Majority in liquidation amount of the outstanding Capital Securities. In no event will the Holders of the Capital
Securities have the right to vote to appoint, remove or replace the Administrative Trustees, which voting rights are vested exclusively in the Sponsor as the Holder of the Common Securities. No resignation or removal of a Trustee and no appointment
of a successor trustee shall be effective until the acceptance of appointment by the successor trustee in accordance with the provisions of the Declaration.
 (c)So long as any 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 such Debenture Trustee with respect to the Debentures,
(ii) waive any past default that is waivable under Section 5.07 of the Indenture, (iii) exercise any right to rescind or annul a declaration of acceleration of the maturity of the principal of the Debentures or (iv) consent to any amendment,
modification or termination of the Indenture or the Debentures, where such consent shall be required, without, in each case, obtaining the prior approval of the Holders of a Majority in liquidation amount of all outstanding Common Securities;
provided, however, that where a consent under the Indenture would require the consent of each holder of Debentures affected thereby, no such consent shall be given by the Property Trustee without the prior approval of each Holder of the
Common Securities. The 
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 Trustees shall not revoke any action previously authorized or approved by a vote of the Holders of the Common Securities except by subsequent vote
of such Holders. Subject to Section 2.7 of the Declaration, the Property Trustee shall notify each Holder of Common Securities of any notice of default with respect to the Debentures. In addition to obtaining the foregoing approvals of such Holders
of the Common Securities, prior to taking any of the foregoing actions, the Trustees shall obtain an Opinion of Counsel experienced in such matters to the effect that the Trust will not be classified as an association taxable as a corporation for
United States federal income tax purposes on account of such action.
 If an Event of Default under the Declaration has occurred and is continuing and such event is attributable to the failure of the Debenture Issuer to pay
principal of or premium, if any, or interest on the Debentures on the due date (or in the case of redemption, on the redemption date), then a Holder of Common Securities may institute a Direct Action for enforcement of payment to such Holder of the
principal of or premium, if any, or interest on a Like Amount of Debentures on or after the respective due date specified in the Debentures. In connection with such Direct Action, the rights of the Common Securities Holder will be subordinated to
the rights of such Holder of Capital Securities to the extent of any payment made by the Debenture Issuer to such Holder of Common Securities in such Direct Action. Except as provided in the preceding sentences, the Holders of Common Securities will
not be able to exercise directly any other remedy available to the holders of the Debentures.
 Any approval or direction of Holders of Common Securities may be given at a separate meeting of Holders of Common Securities
convened for such purpose, at a meeting of all of the Holders of Securities in the Trust or pursuant to written consent. The Administrative Trustees will cause a notice of any meeting at which Holders of Common Securities are entitled to vote, or of
any matter upon which action by written consent of such Holders is to be taken, to be mailed to each Holder of record of Common Securities. Each such notice will include a statement setting forth (i) the date of such meeting or the date by which
such action is to be taken, (ii) a description of any resolution proposed for adoption at such meeting on which such Holders are entitled to vote or of such matter upon which written consent is sought and (iii) instructions for the delivery of
proxies or consents.
 No vote or consent of the Holders of the Common Securities will be required for the Trust to redeem and cancel Common Securities or to distribute the Debentures in accordance with the Declaration and the
terms of the Securities.
 7.Amendments to Declaration and Indenture.
      In addition to the requirements set out in Section 12.1 of the
Declaration, the Declaration may be amended from time to time by the Sponsor, the Property Trustee and the Administrative Trustees, without the consent of the Holders of the Securities (i) to cure any ambiguity, correct or supplement any provisions
in the Declaration that may be inconsistent with any other provisions, or to make any other provisions with respect to matters or questions arising under the Declaration which shall not be inconsistent with the other provisions of the Declaration,
(ii) to modify, eliminate or add to any provisions of the Declaration 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 
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 trust at all times that any Securities are outstanding or to ensure that the Trust will not be required to register as an "Investment Company" under the Investment Company Act, (iii) to modify, eliminate
or add any provisions of the Declaration to such extent as shall be necessary to enable the Trust and the Sponsor to conduct an Exchange Offer in the manner contemplated by the Registration Rights Agreement, or (iv) to make any changes that would
provide any additional rights and benefits to Holders or that does not adversely affect the legal rights herein of any such Holder; provided, however, that in the case of clauses (i) and (iii), such action shall not adversely affect in any
material respect the interests of any Holder of Securities, and any amendments of the Declaration shall become effective when notice thereof is given to the Holders of the Securities. Under the circumstances referred to in Section 12.1(c) of the
Declaration, the Declaration may be amended by the Trustees and the Sponsor with (i) the consent of Holders representing a Majority in liquidation amount of all outstanding Securities, and (ii) 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 as an Investment Company under the Investment Company Act, provided that, without the consent of each Holder of Trust Securities, the Declaration 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 Holder of Trust Securities to institute suit for the enforcement of
any such payment on or after such date.
 8.Pro Rata.
      A reference in these terms of the Securities to any payment, distribution or
treatment as being "Pro Rata" shall mean pro rata to each Holder according to the aggregate liquidation amount of the Securities held by the relevant Holder in relation to the aggregate liquidation amount of all Securities outstanding unless,
in relation to a payment, an Event of Default under the Declaration has occurred and is continuing, in which case any funds available to make such payment shall be paid first to each Holder of the Capital Securities pro rata according to the
aggregate liquidation amount of Capital Securities held by the relevant Holder relative to the aggregate liquidation amount of all Capital Securities outstanding, and only after satisfaction of all amounts owed to the Holders of the Capital
Securities, to each Holder of Common Securities pro rata according to the aggregate liquidation amount of Common Securities held by the relevant Holder relative to the aggregate liquidation amount of all Common Securities outstanding. In any such
proration, the Trust may make such adjustments as may be appropriate in order that only Securities in authorized denominations shall be redeemed (subject to the minimum block requirements of Section 9.2(m) of the Declaration).
 9.Ranking.
      The Capital Securities rank pari passu with the Common Securities and payment thereon shall be made Pro Rata with the Common Securities, except
that, if an Event of Default under the Declaration occurs and is continuing, no payments in respect of Distributions on, or payments upon liquidation, redemption or otherwise with respect to, the Common Securities shall be made 
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 until the Holders of the Capital Securities shall be paid in full the Distributions, Redemption Price, Liquidation Distribution and other payments to which they are entitled at
such time.
 10.Acceptance of Capital Securities Guarantee and Indenture.
      Each Holder of Capital Securities, by the acceptance thereof,
agrees to the provisions of the Capital Securities Guarantee, including the subordination provisions therein and to the provisions of the Indenture.
 11.No Preemptive Rights.
  
   The Holders of the Securities shall have no preemptive rights to subscribe for any additional securities.
 12.Miscellaneous.
    
 These terms constitute a part of the Declaration.
 The Sponsor will provide a copy of the Declaration or the Capital Securities Guarantee (as may be appropriate) and the Indenture (including any
supplemental indenture) to a Holder without charge on written request to the Sponsor at its principal place of business.
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  Exhibit A-1
 
 Form of Capital Security
Certificate
 
 [Form of Face of Security]
  [if this Capital Security is a Global Capital Security, insert: this Capital Security is a Global Capital Security within the meaning of the declaration hereinafter referred
to and is registered in the name of the depository trust company (the "Clearing Agency") or a nominee of the Clearing Agency. This Capital Security is exchangeable for Capital Securities registered in the name of a person other than the
Clearing Agency or its nominee only in the limited circumstances described in the declaration and no transfer of this Capital Security (other than a transfer of this Capital Security as a whole by the Clearing Agency to a nominee of the Clearing
Agency or by a nominee of the Clearing Agency to the Clearing Agency or another nominee of the Clearing Agency) may be registered except in limited circumstances.]
 [Unless this Capital Security is presented by an authorized
representative of the Depository Trust Company (55 Water Street, New York, New York) to the Trust 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 the Depository Trust Company and any payment hereon is made to Cede & Co., any transfer, pledge or other use hereof for value or otherwise by a person is wrongful since the Registered
Owner hereof, Cede & Co., has an interest herein.]
 [If this Capital Security is a Restricted Capital Security, insert: The Holder of this Capital Security by its acceptance hereof is deemed to have agreed to be bound by
the provisions of a registration rights agreement among First Midwest Bancorp, Inc. ("First Midwest"), First Midwest Capital Trust I (the "Trust"), and the Initial Purchasers named therein dated November 18, 2003 (The "Registration
Rights Agreement"). First Midwest will provide a copy of the Registration Rights Agreement to a holder without charge upon written request to the Trust at its principal place of business.
 This Capital Security has not been
registered under the Securities Act of 1933, as amended (the "Securities Act") or any state securities laws or any other applicable securities law. Neither this Capital Security nor any interest or participation herein may be reoffered, sold,
assigned, transferred, pledged, encumbered or otherwise disposed of in the absence of such registration or unless such transaction is exempt from, or not subject to, such registration.
 The Holder of this Capital Security by
its acceptance hereof agrees to offer, sell or otherwise transfer this Capital Security, prior to the date (the "Resale 
 80
   

 
  Restriction Termination
Date") which is two years after the later of the original issuance date hereof and the last date on which First Midwest or any "Affiliate" of First Midwest was the owner of this Capital Security (or any predecessor of this Capital Security) only
(a) to First Midwest, (b) pursuant to a Registration Statement which has been declared effective under the Securities Act, (c) so long as this Capital Security is eligible for resale pursuant to Rule 144A under the Securities Act ("Rule
144A"), to a person it reasonably believes is a "Qualified Institutional Buyer" (as defined in Rule 144A) that purchases for its own account or for the account of a Qualified Institutional Buyer to whom notice is given that the transfer is being
made in reliance on Rule 144A, (d) pursuant to offers and sales to non-U.S. persons that occur outside the United States within the meaning, of and in compliance with, Regulation S under the Securities Act, (e) to an institutional "Accredited
Investor" within the meaning of subparagraph (a)(1), (2), (3) or (7) of Rule 501 under the Securities Act that is acquiring this Capital Security for its own account, or for the account of such an institutional Accredited Investor, for investment
purposes and not with a view to, or for offer or sale in connection with, any distribution in violation of the Securities Act or (f) pursuant to any other available exemption from the registration requirements under the Securities Act, subject to
the right of First Midwest and the Trust prior to any such offer, sale or transfer (i) pursuant to clause (d), (e) or (f) to require the delivery of an opinion of counsel, certifications and/or other information satisfactory to each of them and (ii)
pursuant to clause (e), to require that the transferor deliver to the Trust a letter from the transferee substantially in the form of Annex A to the Offering Memorandum dated November 10, 2003. Such holder further agrees that it will deliver to each
person to whom this Capital Security is transferred a notice substantially to the effect of this legend.
 The holder of this Capital Security by its acceptance hereof also agrees, represents and warrants that either (i) it is
not an employee benefit plan subject to the Employment Retirement Income Security Act of 1974, as amended ("ERISA") or (ii) the acquisition and holding of this Capital Security by it is not prohibited by either Section 406 of ERISA or Section
4975 of the U.S. Internal Revenue Code of 1986, as amended, or is exempt from any such prohibition.]
 The Capital Securities will be issued and, until registered under the Securities Act, may be transferred only in blocks
having a liquidation amount of not less than $100,000 (100 Capital Securities). Any attempted transfer of Capital Securities in a block having a liquidation amount of less than $100,000 shall be deemed to be void and of no legal effect whatsoever.
Any such purported transferee shall be deemed not to be the holder of such Capital Securities for any purpose, including, but not limited to, the receipt of distributions on such Capital Securities, and such purported transferee shall be deemed to
have no interest whatsoever in such Capital Securities.
 [If this Capital Security is a Regulation S Global Security, insert: This Capital Security has not been registered under the Securities Act and may not be offered or sold
within the United States or to, or for the account or benefit of, U.S. persons 
 81
  

 
 unless registered under the Securities Act or an exemption from the registration
requirements of the Securities Act is available.]
 Certificate NumberNumber of Capital Securities
 CUSIP No. __________
  Certificate Evidencing Capital Securities
 of

First Midwest Capital Trust I
 
 6.95% Series __ Capital Securities
 (liquidation amount $1,000 per Capital Security)
  First Midwest Capital Trust I, a statutory trust created under the laws of the State of
Delaware (the "Trust"), hereby certifies that _____ (the "Holder") is the registered owner of [__________ securities of the Trust]* [the number of securities of the Trust specified in Schedule A hereto]** representing undivided
beneficial interests in the assets of the Trust designated the 6.95% Series ____ Capital Securities (liquidation amount $1,000 per Capital Security) (the "Capital Securities"). Subject to the Declaration (as defined below), 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. The designation, rights, privileges, restrictions,
preferences and other terms and provisions of the Capital Securities represented hereby are issued and shall in all respects be subject to the provisions of the Amended and Restated Declaration of Trust of the Trust dated as of November 18, 2003, as
the same may be amended from time to time (the "Declaration"), including the designation of the terms of the Capital Securities as set forth in Annex I to the Declaration. Capitalized terms used but not defined herein shall have the meaning
given them in the Declaration. The Sponsor will provide a copy of the Declaration, the Capital Securities Guarantee and the Indenture (including any supplemental indenture) to a Holder without charge upon written request to the Trust at its
principal place of business.
 Upon receipt of this certificate, the Holder is bound by the Declaration and is entitled to the benefits thereunder and to the benefits of the Capital Securities Guarantee to the extent provided
therein.
 By acceptance, the Holder agrees to treat, for United States federal income tax purposes, the Debentures as indebtedness and the Capital Securities as evidence of indirect beneficial ownership in the Debentures.

82
  

 
 In Witness Whereof, the Trust has executed this certificate this ____ day of __________.
 
 First Midwest Capital Trust I
 
  
  
 By:
  Name:
  Title:
Administrative Trustee
                Property Trustee's Certificate of Authentication
  This is one of the
Capital Securities referred to in the within- mentioned Declaration.
 Dated:
 
 Wilmington Trust Company,
as Property Trustee
 
  
  
 By:
 Authorized Officer
           
   83
  

 
  [Form of Reverse of Security]
  Distributions payable on each Capital Security will be fixed at a rate per annum of 6.95%
(the "Coupon Rate") of the liquidation amount of $1,000 per Capital Security, such rate being the rate of interest payable on the Debentures to be held by the Property Trustee. Distributions in arrears for more than one semi-annual period
will bear interest thereon compounded semi-annually at the Coupon Rate (to the extent permitted by applicable law). Pursuant to the Registration Rights Agreement, in certain limited circumstances the Debenture Issuer will be required to pay
additional interest (in accordance with the Registration Rights Agreement) with respect to the Debentures. The term "Distributions," as used herein, includes such cash distributions and any such interest payable unless otherwise stated. A
Distribution is payable only to the extent that payments are made in respect of the Debentures held by the Property Trustee and to the extent the Property Trustee has funds on hand legally available therefor.
 Distributions on
the Capital Securities will be cumulative, will accumulate from the most recent date to which Distributions have been paid or duly provided for or, if no Distributions have been paid or duly provided for, from November 18, 2003 and will be payable
semi-annually in arrears, on June 1 and December 1 of each year, commencing on June 1, 2004, except as otherwise described below. Distributions will be computed on the basis of a 360-day year consisting of twelve 30-day months and, for any period
less than a full calendar month, the number of days elapsed in such month. As long as no Event of Default has occurred and is continuing under the Indenture, the Debenture Issuer has the right under the Indenture to defer payments of interest by
extending the interest payment period at any time and from time to time on the Debentures for a period not exceeding 10 consecutive semi-annual periods, including the first such semi-annual period during such extension period (each an "Extension
Period"), provided that no Extension Period shall end on a day other than an Interest Payment Date for the Debentures or shall extend beyond the Maturity Date of the Debentures. As a consequence of such deferral, Distributions also will
be deferred. Despite such deferral, semi-annual Distributions will continue to accumulate with interest thereon (to the extent permitted by applicable law, but not at a rate exceeding the rate of interest then accruing on the Debentures) at the
Coupon Rate compounded semi-annually during any such Extension Period. Prior to the termination of any such Extension Period, the Debenture Issuer may further defer payments of interest by further extending such Extension Period; provided
that such Extension Period, together with all such previous and further extensions within such Extension Period, may not exceed 10 consecutive semi-annual periods, including the first semi-annual period during such Extension Period, or extend beyond
the Maturity Date of the Debentures. Payments of accumulated Distributions will be payable to Holders as they appear on the books and records of the Trust on the first record date preceding the end of the Extension Period. Upon the termination of
any Extension Period and the payment of all amounts then due, the Debenture Issuer may commence a new Extension Period, subject to the above requirements.
 Subject to the Sponsor obtaining any prior regulatory approval then
required and to certain other conditions set forth in the Declaration and the Indenture, the Property Trustee may, at the direction of the Sponsor, at any time terminate the Trust and, after satisfaction of any 
 84
  

 
 liabilities to creditors of the Trust in accordance with applicable law, cause the Debentures to be distributed to the Holders of the Securities in liquidation of the Trust or, simultaneous with any
redemption of the Debentures, cause a Like Amount of the Securities to be redeemed by the Trust.
 The Capital Securities shall be redeemable as provided in the Declaration.
 85
  



  Assignment
  For Value Received, the undersigned assigns and transfers this Capital Security certificate to:
 
 
 
 (insert assignee's social security or tax identification number)
 
 
 
 (insert address and zip code of assignee)
 and
irrevocably appoints
 
 
 
 agent to transfer this Capital Security certificate on the books of the Trust. The agent may substitute another to act for him or
her.
 Dated: ____________________________
 Signature: ____________________________
 (Sign exactly as your name appears on the other side of this Capital Security certificate)
 Signature Guarantee*: ____________________________
 
 ___________
 *Signature must be guaranteed by an "eligible guarantor institution" that is a bank, stockbroker, savings
and loan association or credit union meeting the requirements of the Registrar, which requirements include membership or participation in the Securities Transfer Agents Medallion Program ("STAMP") or such other "signature guarantee program"
as may be determined by the Registrar in addition to, or in substitution for, STAMP, all in accordance with the Securities and Exchange Act of 1934, as amended.
 86
  

 
 [Include
the following if the Capital Security bears a Restricted Capital Securities Legend--
 In connection with any transfer of any of the Capital Securities evidenced by this certificate, the undersigned confirms that such Capital
Securities are being:
 Check One Box Below
      
	  (1) 
	   
	  exchanged for the undersigned's own account without transfer; or 

	  (2) 
	   
	  transferred pursuant to and in compliance with Rule 144A under the Securities Act of 1933; or 

	  (3) 
	   
	  transferred pursuant to and in compliance with Regulation S under the Securities Act of 1933; or 

	  (4) 
	   
	  transferred to an institutional "accredited investor" within the meaning of subparagraph (a)(1), (2), (3) or (7) of Rule 501 under the Securities Act of 1933 that is acquiring the
Capital Securities for its own account, or for the account of such an institutional "accredited investor," for investment purposes and not with a view to, or for offer or sale in connection with, any distribution in violation of the Securities Act
of 1933; or 

	  (5) 
	   
	  transferred pursuant to another available exemption from the registration requirements of the Securities Act of 1933; or 

	  (6) 
	   
	  transferred pursuant to an effective registration statement. 


  Unless one of the boxes is checked, the Registrar
will refuse to register any of the Capital Securities evidenced by this certificate in the name of any person other than the registered Holder thereof; provided, however, that if box (3), (4) or (5) is checked, the Registrar may require,
prior to registering any such transfer of the Capital Securities, such legal opinions, certifications and other information as the Trust has reasonably requested to confirm that such transfer is being made pursuant to an exemption from, or in a
transaction not subject to, the registration requirements of the Securities Act of 1933, such as the exemption provided by Rule 144 under such Act; provided, further, that (i) if box 2 is checked, the transferee must also certify in the form
attached hereto that it is a qualified institutional buyer as defined in Rule 144A or (ii) if box (4) is checked, the transferee must also provide to the Registrar a Transferee Letter of Representation in the form attached as Annex I to the Offering
Memorandum of the Trust dated November 10, 2003; provided, further, that after the date that a Registration Statement has been filed and so long as such Registration Statement continues to be effective, the Registrar may only permit transfers
for which box (6) has been checked.
 
  
  
 
 Signature
               87
  

 
  Schedule
A***
  The initial number of Capital Securities evidenced by the Certificate to which this Schedule is attached 125,000 (having an aggregate liquidation
amount of $125,000,000). The notations in the following table evidence decreases and increases in the number of Capital Securities evidenced by such Certificate.
 
	  Decrease in Number of Capital Securities 
	  Increase in Number of Capital Securities 
	  Number of Capital Securities Remaining after such Decrease or Increase 
	  Notation by Registrar 

	 	 	 	 
	 	 	 	 

   
 88
  

 
  Certificate of Qualified Institutional Buyer
  The undersigned transferee of Capital Securities hereby certifies that (i) the undersigned is a "qualified institutional buyer" (a "QIB") as defined in Rule 144A ("Rule 144A") promulgated under the Securities Act of
1933, (ii) the undersigned is aware that the transfer of the Capital Securities to the undersigned is being made in reliance on Rule 144A and (iii) the undersigned is acquiring the Capital Securities for its own account or for the account of another
QIB over which the undersigned exercises its sole investment discretion.
 The undersigned also understands and acknowledges that the Capital Securities have not been registered under the Securities Act or any other applicable
securities law, are being offered for resale in transactions not requiring registration under the Securities Act and may not be offered, sold, pledged or otherwise transferred except in compliance with the registration requirements of the Securities
Act or any other applicable securities laws, pursuant to an exemption therefrom or in a transaction not subject thereto and, in each case, in compliance with the terms of the Capital Securities and the terms of the Amended and Restated Declaration
of Trust of First Midwest Capital Trust I, dated as of November 18, 2003, as the same may be amended from time to time.
 
  
  
 
 Signature
               89
  

 

 Exhibit A-2
 
 Form of Common Security Certificate
  This Common Security has not been registered under the Securities Act of 1933, as amended (the "Securities Act"), or any state
securities laws or any other applicable securities law.
 Certificate NumberNumber of Common Securities
  Certificate Evidencing Common Securities
 of
 First Midwest Capital Trust I
 

6.95% Common Securities
 (liquidation amount $1,000 per Capital Security)
  First Midwest Capital Trust I, a statutory trust created under the laws of the State of Delaware (the "Trust"), hereby certifies that
First Midwest Bancorp, Inc. (the "Holder") is the registered owner of _____ common securities of the Trust representing undivided beneficial interests in the assets of the Trust designated the 6.95% Common Securities (liquidation amount
$1,000 per Common Security) (the "Common Securities"). Subject to the limitations in Section 9.1(c) of the Declaration (as defined below), the Common 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. The designation, rights, privileges, restrictions, preferences and other terms and provisions of the Common Securities represented hereby are
issued and shall in all respects be subject to the provisions of the Amended and Restated Declaration of Trust of the Trust dated as of November 18, 2003, as the same may be amended from time to time (the "Declaration"), including the
designation of the terms of the Common Securities as set forth in Annex I to the Declaration. Capitalized terms used but not defined herein shall have the meaning given them in the Declaration. The Sponsor will provide a copy of the Declaration and
the Indenture (including any supplemental indenture) to a Holder without charge upon written request to the Sponsor at its principal place of business.
 Upon receipt of this certificate, the Sponsor is bound by the Declaration
and is entitled to the benefits thereunder.
 By acceptance, the Holder agrees to treat, for United States federal income tax purposes, the Debentures as indebtedness and the Common Securities as evidence of indirect beneficial
ownership in the Debentures.
 In Witness Whereof, the Trust has executed this certificate this ____ day of November, 2003.
 
 First Midwest Capital Trust I
 
  
  
 By:
  Name:
  Title: Administrative Trustee

              90
  

 
  [Form of Reverse of Security]
  Distributions
payable on each Common Security will be fixed at a rate per annum of 6.95% (the "Coupon Rate") of the liquidation amount of $1,000 per Common Security, such rate being the rate of interest payable on the Debentures to be held by the Property
Trustee. Distributions in arrears for more than one semi-annual period will bear interest thereon compounded semi-annually at the Coupon Rate (to the extent permitted by applicable law). Pursuant to the Registration Rights Agreement, in certain
limited circumstances the Debenture Issuer will be required to pay additional interest (in accordance with the Registration Rights Agreement) with respect to the Debentures. The term "Distributions," as used herein, includes such cash
distributions and any such interest payable unless otherwise stated. A Distribution is payable only to the extent that payments are made in respect of the Debentures held by the Property Trustee and to the extent the Property Trustee has funds
available therefor.
 Distributions on the Common Securities will be cumulative, will accrue from the most recent date to which Distributions have been paid or duly provided for or, if no Distributions have been paid or duly
provided for, from November 18, 2003 and will be payable semi-annually in arrears, on June 1 and December 1 of each year, commencing on June 1, 2003, except as otherwise described below. Distributions will be computed on the basis of a 360-day year
consisting of twelve 30-day months and, for any period less than a full calendar month, the number of days elapsed in such month. As long as no Event of Default has occurred and is continuing under the Indenture, the Debenture Issuer has the right
under the Indenture to defer payments of interest by extending the interest payment period at any time and from time to time on the Debentures for a period not exceeding 10 consecutive semi-annual periods, including the first such semi-annual period
during such extension period (each an "Extension Period"), provided that no Extension Period shall end on a day other than an Interest Payment Date for the Debentures or shall extend beyond the Maturity Date of the Debentures. As a
consequence of such deferral, Distributions also will be deferred. Despite such deferral, Distributions will continue to accumulate with interest thereon (to the extent permitted by applicable law, but not at a rate exceeding the rate of interest
then accruing on the Debentures) at the Coupon Rate compounded semi-annually during any such Extension Period. Prior to the termination of any such Extension Period, the Debenture Issuer may further defer payments of interest by further extending
such Extension Period; provided that such Extension Period, together with all such previous and further extensions within such Extension Period, may not exceed 10 consecutive semi-annual periods, including the first semi-annual period during
such Extension Period, or extend beyond the Maturity Date of the Debentures. Payments of accrued Distributions will be payable to Holders as they appear on the books and records of the Trust on the first record date preceding the end of the
Extension Period. Upon the termination of any Extension Period and the payment of all amounts then due, the Debenture Issuer may commence a new Extension Period, subject to the above requirements.
 Subject to the Sponsor
obtaining any prior regulatory approval then required and to certain other conditions set forth in the Declaration and the Indenture, the Property Trustee may, at the direction of the Sponsor, at any time terminate the Trust and, after satisfaction
of any liabilities to creditors of the Trust in accordance with applicable law, cause the Debentures to be 
 91
  

 
 distributed to the Holders to the Securities in liquidation of
the Trust or, simultaneous with any redemption of the Debentures, cause a Like Amount of the Securities to be redeemed by the Trust.
 The Common Securities shall be redeemable as provided in the Declaration.
 92
  

 
  Assignment
  For Value Received, the undersigned assigns and transfers this Common Security certificate to:
 
 
 
 (insert assignee's social security or tax identification number)
 
 
 
 (insert address and
zip code of assignee)
 and irrevocably appoints
 
 
 
 agent to transfer this Common Security certificate on the books of the Trust. The
agent may substitute another to act for him or her.
 Dated: ____________________________
 Signature: ____________________________
 (Sign exactly as your name appears on the other side of
this Capital Security certificate)
 Signature Guarantee*: ____________________________
 
 ___________
 *Signature must be guaranteed by an "eligible guarantor
institution" that is a bank, stockbroker, savings and loan association or credit union meeting the requirements of the Registrar, which requirements include membership or participation in the Securities Transfer Agents Medallion Program
("STAMP") or such other "signature guarantee program" as may be determined by the Registrar in addition to, or in substitution for, STAMP, all in accordance with the Securities and Exchange Act of 1934, as amended.
 93