Exhibit 4.2 




AMENDED AND RESTATED
DECLARATION
OF TRUST NO. 2 

by and among 

WILMINGTON TRUST COMPANY,
as
Delaware Trustee, 

WILMINGTON TRUST COMPANY,
as
Institutional Trustee, 

ENTERPRISE FINANCIAL SERVICES
CORP,
as Sponsor, 

and 

FRANK H. SANFILIPPO, DEBORAH N.
BARSTOW, and
BETTY L. LEWIS
as Administrators, 

Dated as of December 12, 2008









TABLE OF
CONTENTS

	ARTICLE I INTERPRETATION AND DEFINITIONS	      	1
	   Section  	1.1.	Definitions		1
	ARTICLE II ORGANIZATION		10
	   Section	2.1.	Name		10
	   Section	2.2.	Office		10
	   Section	2.3.	Purpose		10
	   Section	2.4.	Authority		10
	   Section	2.5.	Title to
      Property of the Trust		10
	   Section	2.6.	Powers and Duties of the Trustees and the Administrators		11
	   Section	2.7.	Prohibition of
      Actions by the Trust and the Institutional Trustee		15
	   Section	2.8.	Powers and Duties of the Institutional Trustee		15
	   Section	2.9.	Certain Duties
      and Responsibilities of the Trustees and Administrators		17
	   Section	2.10.  	Certain Rights of Institutional Trustee		18
	   Section	2.11.	Delaware
      Trustee		21
	   Section	2.12.	Execution of Documents		21
	   Section	2.13.	Not Responsible
      for Recitals or Issuance of Securities		21
	   Section	2.14.	Duration of Trust		21
	   Section	2.15.	Mergers		21
	ARTICLE III SPONSOR		23
	   Section	3.1.	Sponsor’s
      Purchase of Common Securities		23
	   Section	3.2.	Responsibilities of the Sponsor		23
	   Section	3.3.	Expenses		23
	   Section	3.4.	Right to Proceed		24
	ARTICLE IV INSTITUTIONAL TRUSTEE AND ADMINISTRATORS		24
	   Section	4.1.	Number of Trustees		24
	   Section	4.2.	Delaware
      Trustee; Eligibility		25
	   Section	4.3.	Institutional Trustee; Eligibility		25
	   Section	4.4.	Administrators		26
	   Section	4.5.	Appointment, Removal and Resignation of Trustees and
      Administrators		26
	   Section	4.6.	Vacancies Among
      Trustees		28
	   Section	4.7.	Effect of Vacancies		28
	   Section	4.8.	Meetings of the
      Trustees and the Administrators		28
	   Section	4.9.	Delegation of Power		29
	   Section	4.10.	Conversion,
      Consolidation or Succession to Business		29
	ARTICLE V DISTRIBUTIONS		29
	   Section	5.1.	Distributions		29
	ARTICLE VI ISSUANCE OF SECURITIES		29
	   Section	6.1.	General
      Provisions Regarding Securities		29
	   Section	6.2.	Paying Agent, Transfer Agent and Registrar		30
	   Section	6.3.	Form and
      Dating		31
	   Section	6.4.	Mutilated, Destroyed, Lost or Stolen Certificates		31
	   Section	6.5.	Temporary
      Securities		32
	   Section	6.6.	Cancellation		32
	   Section  	6.7.	Rights of
      Holders; Waivers of Past Defaults		32



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	ARTICLE VII	DISSOLUTION AND TERMINATION OF TRUST	      	34
	   Section  	7.1.	Dissolution and
      Termination of Trust		34
	ARTICLE VIII	TRANSFER OF INTERESTS		35
	   Section	8.1.	General		35
	   Section	8.2.	Transfer Procedures and Restrictions		36
	   Section	8.3.	Deemed Security
      Holders		38
	ARTICLE IX LIMITATION OF LIABILITY OF HOLDERS OF
      SECURITIES,		
	INSTITUTIONAL TRUSTEE OR OTHERS		39
	   Section	9.1.	Liability		39
	   Section	9.2.	Exculpation		39
	   Section	9.3.	Fiduciary Duty		39
	   Section	9.4.	Indemnification		40
	   Section	9.5.	Outside Businesses		42
	   Section	9.6.	Compensation;
      Fee		43
	ARTICLE X ACCOUNTING		43
	   Section	10.1.	Fiscal
      Year		43
	   Section	10.2.	Certain Accounting Matters		43
	   Section	10.3.	Banking	 	44
	   Section	10.4.	Withholding		44
	ARTICLE XI AMENDMENTS AND MEETINGS		45
	   Section	11.1.	Amendments		45
	   Section	11.2.	Meetings of the
      Holders of Securities; Action by Written Consent		46
	ARTICLE XII	REPRESENTATIONS OF INSTITUTIONAL TRUSTEE AND THE DELAWARE
      TRUSTEE		48
	   Section	12.1.	Representations
      and Warranties of Institutional Trustee		48
	   Section	12.2.	Representations of the Delaware Trustee		48
	ARTICLE XIII MISCELLANEOUS		49
	   Section	13.1.	Notices		49
	   Section	13.2.	Governing
      Law		51
	   Section	13.3.	Intention of the Parties		51
	   Section	13.4.	Headings		51
	   Section	13.5.	Successors and Assigns		51
	   Section	13.6.	Partial
      Enforceability		51
	   Section	13.7.  	Counterparts		51



ii




AMENDED AND RESTATED

DECLARATION OF TRUST NO.
2

OF 

EFSC CAPITAL TRUST VIII


December 12, 2008 

     AMENDED
AND RESTATED DECLARATION OF TRUST NO. 2 (“Declaration”) dated and effective as
of December 12, 2008, by the Trustees (as defined herein), the Administrators
(as defined herein), the Sponsor (as defined herein) and by the holders, from
time to time, of undivided beneficial interests in the Trust (as defined herein)
to be issued pursuant to this Declaration; 

     WHEREAS,
the Trustees, the Administrators and the Sponsor established EFSC Capital Trust
VIII (the “Trust”), a statutory trust under the Statutory Trust Act (as defined herein)
pursuant to a Declaration of Trust dated as of November 18, 2008 as amended
December 1, 2008 (collectively, the “Original
Declaration”), and a Certificate of Trust
filed with the Secretary of State of the State of Delaware on November 18, 2008,
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 (as defined
herein); 

     WHEREAS, as of the date hereof, no
interests in the Trust have been issued; and 

     WHEREAS,
the Trustees, the Administrators and the Sponsor, by this Declaration, amend and
restate each and every term and provision of the Original Declaration;


     NOW,
THEREFORE, it being the intention of the parties hereto to continue the Trust as
a statutory trust under the Statutory Trust Act and that this Declaration
constitutes 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. The parties hereto hereby agree
as follows: 

ARTICLE I 

INTERPRETATION AND DEFINITIONS


     Section
1.1. Definitions. Unless the context otherwise requires: 

     (a)
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; 

     (b) a term defined anywhere in this
Declaration has the same meaning throughout;

1




     (c) all
references to “the Declaration” or “this Declaration” are to this Declaration as
modified, supplemented or amended from time to time and includes any Annexes and
Exhibits hereto; 

     (d) 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; and 

     (e) a reference to the singular
includes the plural and vice versa.

     “Acceleration Event of Default” has the
meaning set forth in the Indenture.

     “Additional Interest” has the meaning
set forth in the Indenture.

     “Additional Junior Indebtedness” has
the meaning set forth in the Indenture.

     “Administrative Action” has the meaning
set forth in paragraph 4(a) of Annex I. 

     “Administrators” means each of Frank H. Sanfilippo, Deborah N. Barstow and
Betty L. Lewis, solely in such Person’s capacity as Administrator of the Trust
created and continued hereunder and not in such Person’s individual capacity, or
such Administrator’s successor in interest in such capacity, or any successor
appointed as herein provided. 

     “Affiliate” has the same meaning as given to that term in Rule 405 of the
Securities Act or any successor rule thereunder. 

     “Authorized Officer” of a Person means any Person that is authorized to bind such
Person. 

     “Bankruptcy Event” means, with respect
to any Person: 

     (a) a
court having jurisdiction in the premises shall enter a decree or order for
relief in respect of such Person in an involuntary case under any applicable
bankruptcy, insolvency or other similar law now or hereafter in effect, or
appointing a receiver, liquidator, assignee, custodian, trustee, sequestrator
(or similar official) of such Person or for any substantial part of its
property, or ordering the winding-up or liquidation of its affairs and such
decree or order shall remain unstayed and in effect for a period of 90
consecutive days; or 

     (b) such
Person shall commence a voluntary case under any applicable bankruptcy,
insolvency or other similar law now or hereafter in effect, shall consent to the
entry of an order for relief in an involuntary case under any such law, or shall
consent to the appointment of or taking possession by a receiver, liquidator,
assignee, trustee, custodian, sequestrator (or other similar official) of such
Person of any substantial part of its property, or shall make any general
assignment for the benefit of creditors, or shall fail generally to pay its
debts as they become due. 

2




     “Business Combination” has the meaning set forth in the definition of “Change of
Control Transaction”. 

     “Business Day” means any day other than Saturday, Sunday or any other day
on which banking institutions in Wilmington, Delaware are permitted or required
by any applicable law or executive order to close. 

     “Capital Securities” has the meaning
set forth in paragraph 1(a) of Annex I. 

     “Capital Security
Certificate” means a definitive Certificate
in fully registered form representing a Capital Security substantially in the
form of Exhibit A-1. 

     “Capital Treatment Event” has the
meaning set forth in paragraph 4(a) of Annex I. 

     “Certificate” means any certificate
evidencing Securities. 

     “Change of Control
Transaction” shall mean any of the following
occurrences, and shall be deemed to occur the date on which any of the following
has occurred:

     (a) any Person or group (other than
the Debenture Issuer or any of its Affiliates, a trustee or other fiduciary
holding securities of the Debenture Issuer under an employee benefit plan of the
Debenture Issuer or any one or more of the Debenture Issuer's directors as of
the date of this Agreement) becomes the beneficial owner of securities of the
Debenture Issuer representing 50% or more of the combined voting power of the
Debenture Issuer’s then-outstanding securities entitled to vote generally in the
election of directors of the Debenture Issuer (the “Debenture Issuer Outstanding
Voting Securities”); or

     (b) consummation of a
reorganization, merger or consolidation of the Debenture Issuer, unless, in each
case, following such transaction (i) all or substantially all of the Persons who
were the beneficial owners, respectively, of the Debenture Issuer Outstanding
Voting Securities immediately prior to such transaction beneficially own,
directly or indirectly, more than a majority of the combined voting power of the
then outstanding voting securities entitled to vote generally in the election of
directors of the company resulting from such transaction, and (ii) no Person
(excluding any company resulting from such transaction) beneficially owns,
directly or indirectly, 50% or more of the combined voting power of the then
outstanding voting securities entitled to vote generally in the election of
directors of the company resulting from such transaction except to the extent
such ownership existed prior to the Business Combination. (A transaction
described in this clause (b) and not excluded by clauses (i) or (ii) hereof
shall be referred to as a “Business Combination”.)

     As used in definition of Change of
Control, the definitions of the terms “beneficial owner” and “group” shall have
the meanings ascribed to those terms in Rule 13(d)(3) under the Securities
Exchange Act of 1934. 

     “Closing Date” has the meaning set
forth in the Subscription Agreement. 

3




     “Closing Price” of any security on any
day means the last reported sale price of such security on such day, regular
way, or, if no sale takes place on such day, the average of the reported closing
bid and asked prices of such security on such day, regular way, in either case
as reported on the Nasdaq Composite, or, if such security is not listed or
admitted to trading on the NASDAQ, on the principal national securities exchange
on which such security is listed or admitted to trading, or, if such security is
not listed or admitted to trading on a national securities exchange, on the
National Market System of the National Association of Securities Dealers, Inc.,
or, if such security is not quoted or admitted to trading on such quotation
system, on the principal quotation system on which such security may be listed
or admitted to trading or quoted, or, if not listed or admitted to trading or
quoted on any national securities exchange or quotation system, the average of
the closing bid and asked prices of such security in the over-the-counter market
on the day in question as reported by the National Quotation Bureau
Incorporated, or a similar generally accepted reporting service, or, if not so
available in such manner, as furnished by any NASDAQ member firm selected from
time to time by the Board of Directors of the Sponsor for that purpose or, if
not so available in such manner, as otherwise determined in good faith by the
Board of Directors of the Sponsor. 

     “Code” means the Internal Revenue Code of 1986, as amended from time to time,
or any successor legislation. 

     “Common Securities” has the meaning set
forth in paragraph 1(b) of Annex I. 

     “Common Security
Certificate” means a definitive Certificate
in fully registered form representing a Common Security substantially in the
form of Exhibit A-2. 

     “Common Stock” means the common stock,
$0.01 par value per share, of the Sponsor. 

     “Company Indemnified
Person” means (a) any Administrator; (b) any
Affiliate of any Administrator; (c) any officers, directors, shareholders,
members, partners, employees, representatives or agents of any Administrator; or
(d) any officer, employee or agent of the Trust or its Affiliates. 

     “Control” with respect to any Person,
means the possession, directly or indirectly, severally or jointly, of the power
to direct or cause the direction of the management policies of such Person,
whether through the ownership of voting securities, by contract or credit
arrangement, as trustee or executor, or otherwise.

     “Conversion Agent”, “Conversion
Date”, “Conversion Price”, “Conversion Request” and
“Conversion Termination Price” each has the meaning set forth in paragraph 7 of Annex I.


     “Corporate Trust Office” means the office of the Institutional Trustee at which the
corporate trust business of the Institutional 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 19890-1600, Attn: Corporate Trust Administration.


4




     “Covered Person” means: (a) any Administrator, officer, director,
shareholder, partner, member, representative, employee or agent of (i) the Trust
or (ii) any of the Trust’s Affiliates; and (b) any Holder of Securities.


     “Creditor” has the meaning set forth in
Section 3.3. 

     “Debenture Issuer” means Enterprise Financial Services Corp, a Delaware
corporation, in its capacity as issuer of the Debentures under the Indenture.


     “Debenture Trustee” means Wilmington Trust Company, as trustee under the
Indenture until a successor is appointed thereunder, and thereafter means such
successor trustee. 

     “Debentures” means the Junior Subordinated Deferrable Interest Debentures due 2038
to be issued by the Debenture Issuer under the Indenture. 

     “Defaulted Interest” has the meaning
set forth in the Indenture.

     “Delaware Trustee” has the meaning set
forth in Section 4.2.

     “Direct Action” has the meaning set
forth in Section 2.8(d). 

     “Distribution” means a distribution payable to Holders of Securities in
accordance with Section 5.1. 

     “Distribution Payment Date” has the
meaning set forth in paragraph 2(b) of Annex I. 

     “Distribution Period” means (i) with respect to the Distribution paid on the first
Distribution Payment Date, the period beginning on (and including) the date of
original issuance and ending on (but excluding) the Distribution Payment Date in
March 2009 and (ii) thereafter, with respect to a Distribution paid on each
successive Distribution Payment Date, the period beginning on (and including)
the preceding Distribution Payment Date and ending on (but excluding) such
current Distribution Payment Date. 

     “Distribution Rate” means, for each
Distribution Period the rate per annum of 9.00%.

     “Event of Default” means any one of the following events (whatever the reason
for such event and whether it shall be voluntary or involuntary or be effected
by operation of law or pursuant to any judgment, decree or order of any court or
any order, rule or regulation of any administrative or governmental body):


     (a) the occurrence of an Indenture
Event of Default; or 

     (b)
default by the Trust in the payment of any Redemption Price of any Security when
it becomes due and payable; or 

5




     (c)
default in the performance, or breach, in any material respect, of any covenant
or warranty of the Institutional Trustee in this Declaration (other than those
specified in clause (a) or (b) above) and continuation of such default or breach
for a period of 30 days after there has been given, by registered or certified
mail to the Institutional Trustee and to the Sponsor by the Holders of at least
25% in aggregate liquidation amount of the outstanding Capital Securities, a
written notice specifying such default or breach and requiring it to be remedied
and stating that such notice is a “Notice of Default” hereunder; or 

     (d) the
occurrence of a Bankruptcy Event with respect to the Institutional Trustee if a
successor Institutional Trustee has not been appointed within 90 days thereof.


     “Extension Period” has the meaning set
forth in paragraph 2(b) of Annex I. 

     “Federal Reserve” has the meaning set
forth in paragraph 3 of Annex I. 

     “Fiduciary Indemnified
Person” shall mean each of the Institutional
Trustee (including in its individual capacity), the Delaware Trustee (including
in its individual capacity), any Affiliate of the Institutional Trustee or
Delaware Trustee and any officers, directors, shareholders, members, partners,
employees, representatives, custodians, nominees or agents of the Institutional
Trustee or Delaware Trustee. 

     “Fiscal Year” has the meaning set forth
in Section 10.1. 

     “Guarantee” means the guarantee agreement to be dated as of the Closing Date, of
the Sponsor in respect of the Capital Securities. 

     “Holder” means a Person in whose name a Certificate representing a Security is
registered, such Person being a beneficial owner within the meaning of the
Statutory Trust Act. 

     “Indemnified Person” means a Company Indemnified Person or a Fiduciary
Indemnified Person. 

     “Indenture” means the Indenture dated as of the Closing Date, between the Debenture
Issuer and the Debenture Trustee, and any indenture supplemental thereto
pursuant to which the Debentures are to be issued, as such Indenture and any
supplemental indenture may be amended, supplemented or otherwise modified from
time to time. 

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

     “Institutional Trustee” means the Trustee meeting the eligibility requirements set
forth in Section 4.3. 

     “Interest” means any interest due on the Debentures including any Additional
Interest and Defaulted Interest. 

6







     “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. 

     “Investment Company Event” has the
meaning set forth in paragraph 4(a) of Annex I. 

     “Liquidation” has the meaning set forth
in paragraph 3 of Annex I. 

     “Liquidation Distribution” has the
meaning set forth in paragraph 3 of Annex I. 

     “Majority in liquidation amount of the
Securities” means Holder(s) of outstanding
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. 

     “Maturity Date” has the meaning set
forth in paragraph 4(a) of Annex I. 

     “Officers’ Certificates” means, with respect to any Person, a certificate signed by
two Authorized Officers of such Person. Any Officers’ Certificate delivered with
respect to compliance with a condition or covenant providing for it in this
Declaration shall include: 

     (a) a
statement that each officer signing the Certificate has read the covenant or
condition and the definitions relating thereto; 

     (b) a
brief statement of the nature and scope of the examination or investigation
undertaken by each officer in rendering the Certificate; 

     (c) a
statement that each such officer has made such examination or investigation as,
in such officer’s opinion, is necessary to enable such officer to express an
informed opinion as to whether or not such covenant or condition has been
complied with; and 

     (d) a
statement as to whether, in the opinion of each such officer, such condition or
covenant has been complied with. 

     “Paying Agent” has the meaning
specified in Section 6.2. 

     “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.


7





     “Property Account” has the meaning set
forth in Section 2.8(c). 

     “Pro Rata” has the meaning set forth in
paragraph 9 of Annex I. 

     “Quorum” means a majority of the Administrators or, if there are only two
Administrators, both of them. 

     “Redemption Date” has the meaning set
forth in paragraph 4(a) of Annex I. 

     “Redemption/Distribution
Notice” has the meaning set forth in
paragraph 4(e) of Annex I. 

     “Redemption Price” has the meaning set
forth in paragraph 4(a) of Annex I. 

     “Registrar” has the meaning set forth
in Section 6.2. 

     “Relevant Trustee” has the meaning set
forth in Section 4.5(a). 

     “Responsible Officer” means, with respect to the Institutional Trustee, any
officer within the Corporate Trust Office of the Institutional Trustee,
including any vice-president, any assistant vice-president, any assistant
secretary, the treasurer, any assistant treasurer, any trust officer or other
officer of the Corporate Trust Office of the Institutional Trustee customarily
performing functions similar to those performed by any of the above designated
officers 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 Securities Legend” has the
meaning set forth in Section 8.2(b). 

     “Rule 3a-5” means Rule 3a-5 under the
Investment Company Act. 

     “Rule 3a-7” means Rule 3a-7 under the
Investment Company Act. 

     “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. 

     “Special Event” has the meaning set
forth in paragraph 4(a) of Annex I. 

     “Special Redemption Date” has the
meaning set forth in paragraph 4(a) of Annex I. 

     “Sponsor” means Enterprise Financial Services Corp, a Delaware corporation, or
any successor entity in a merger, consolidation or amalgamation, in its capacity
as sponsor of the Trust. 

8





     “Statutory Trust Act” means Chapter 38 of Title 12 of the Delaware Code, 12 Del.
C. §§ 3801, et seq. as may be amended from time to time. 

     “Subscription Agreement” means that certain Subscription Agreement by and among the
Sponsor, the Trust and the Holder purchasing Capital Securities pursuant thereto
in the form substantially similar to that set forth in Exhibit B attached hereto
and incorporated herein. 

     “Successor Entity” has the meaning set
forth in Section 2.15(b). 

     “Successor Delaware Trustee” has the
meaning set forth in Section 4.5(e). 

     “Successor Institutional Trustee” has
the meaning set forth in Section 4.5(b). 

     “Successor Securities” has the meaning
set forth in Section 2.15(b). 

     “Super Majority” has the meaning set
forth in paragraph 5(b) of Annex I. 

     “Tax Event” has the meaning set forth
in paragraph 4(a) of Annex I. 

     “10% in liquidation amount of the
Securities” means Holder(s) of outstanding
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. 

     “Transfer Agent” has the meaning set
forth in Section 6.2. 

     “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 Property” means (a) the Debentures, (b) any cash on deposit in, or
owing to, the Property Account and (c) all proceeds and rights in respect of the
foregoing and any other property and assets for the time being held or deemed to
be held by the Institutional Trustee pursuant to the trusts of this Declaration.


     “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. 

     “U.S. Person” means a United States Person as defined in Section 7701(a)(30) of the
Code. 

9





ARTICLE II 

ORGANIZATION 

     Section 2.1. Name. The Trust is named “EFSC Capital Trust VIII,” as such name may
be modified from time to time by the Administrators following written notice to
the Holders of the Securities. The Trust’s activities may be conducted under the
name of the Trust or any other name deemed advisable by the Administrators.


     Section 2.2. Office. The address of the principal office of the Trust is c/o
Wilmington Trust Company, Rodney Square North, 1100 North Market Street,
Wilmington, Delaware 19890-1600. On at least 10 Business Days written notice to
the Holders of the Securities, the Administrators may designate another
principal office, which shall be in a state of the United States or in the
District of Columbia. 

     Section 2.3. Purpose. The exclusive purposes and functions of the Trust are (a) to
issue and sell the Securities representing undivided beneficial interests in the
assets of the Trust, (b) to invest the gross proceeds from such sale to acquire
the Debentures, (c) to facilitate direct investment in the assets of the Trust
through issuance of the Common Securities and the Capital Securities and (d)
except as otherwise limited herein, to engage in only those other activities
necessary or incidental thereto. The Trust shall not borrow money, issue debt or
reinvest proceeds derived from investments, 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. 

     Section 2.4. Authority. Except as specifically provided in this Declaration, the
Institutional Trustee shall have exclusive and complete authority to carry out
the purposes of the Trust. An action taken by a Trustee 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. The Administrators shall have
only those ministerial duties set forth herein with respect to accomplishing the
purposes of the Trust and are not intended to be trustees or fiduciaries with
respect to the Trust or the Holders. The Institutional Trustee shall have the
right, but shall not be obligated except as provided in Section 2.6, to perform
those duties assigned to the Administrators. 

     Section 2.5. Title to Property
of the Trust. Except as provided in Section 2.8 with respect to the
Debentures and the Property 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. 

10





     Section 2.6.
Powers and Duties of the
Trustees and the Administrators.


     (a) The
Trustees and the Administrators shall conduct the affairs of the Trust in
accordance with the terms of this Declaration. Subject to the limitations set
forth in paragraph (b) of this Section, and in accordance with the following
provisions (i) and (ii), the Trustees and the Administrators shall have the
authority to enter into all transactions and agreements determined by the
Institutional Trustee to be appropriate in exercising the authority, express or
implied, otherwise granted to the Trustees or the Administrators, as the case
may be, under this Declaration, and to perform all acts in furtherance thereof,
including without limitation, the following: 

     (i) Each Administrator shall have the power and authority to
act on behalf of the Trust with respect to the following matters: 

     (A) the issuance and sale of the
Securities; 

     (B) to cause the Trust to enter into, and to execute and
deliver on behalf of the Trust, such agreements as may be necessary or desirable
in connection with the purposes and function of the Trust, including agreements
with the Paying Agent; 

     (C) ensuring compliance with the Securities Act, applicable
state securities or blue sky laws; 

     (D) the sending of notices (other than notices of default),
and other information regarding the Securities and the Debentures to the Holders
in accordance with this Declaration; 

     (E) the consent to the appointment of a Paying Agent, Transfer
Agent and Registrar in accordance with this Declaration, which consent shall not
be unreasonably withheld or delayed; 

     (F) execution and delivery of the Securities in accordance
with this Declaration; 

     (G) execution and delivery of closing certificates pursuant to
the Subscription Agreement and the application for a taxpayer identification
number; 

     (H) unless otherwise determined by the Holders of a Majority
in liquidation amount of the Securities or as otherwise required by the
Statutory Trust Act, to execute on behalf of the Trust (either acting alone or
together with any or all of the Administrators) any documents that the
Administrators have the power to execute pursuant to this Declaration;


     (I) the taking of any action incidental to the foregoing as
the Institutional Trustee may from time to time determine is necessary or
advisable to give effect to the terms of this Declaration for the benefit of the
Holders (without consideration of the effect of any such action on any
particular Holder);

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     (J) to establish a record date with respect to all actions to
be taken hereunder that require a record date be established, including
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; and 

     (K) to duly prepare and file all applicable tax returns and
tax information reports that are required to be filed with respect to the Trust
on behalf of the Trust. 

     (ii) As among the Trustees and the Administrators, the
Institutional Trustee shall have the power, duty and authority to act on behalf
of the Trust with respect to the following matters: 

     (A) the establishment of the
Property Account; 

     (B) the receipt of the Debentures;


     (C) the collection of interest, principal and any other
payments made in respect of the Debentures in the Property Account; 

     (D) the distribution through the Paying Agent of amounts owed
to the Holders in respect of the Securities; 

     (E) the exercise of all of the rights, powers and privileges
of a holder of the Debentures; 

     (F) the sending of notices of default and other information
regarding the Securities and the Debentures to the Holders in accordance with
this Declaration; 

     (G) the distribution of the Trust Property in accordance with
the terms of this Declaration; 

     (H) to the extent provided in this Declaration, the winding up
of the affairs of and liquidation of the Trust and the preparation, execution
and filing of the certificate of cancellation with the Secretary of State of the
State of Delaware; 

     (I) after any Event of Default (provided that such Event of
Default is not by or with respect to the Institutional Trustee) the taking of
any action incidental to the foregoing as the Institutional Trustee may from
time to time determine is necessary or advisable to give effect to the terms of
this Declaration and protect and conserve the Trust Property for the benefit of
the Holders (without consideration of the effect of any such action on any
particular Holder); and

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     (J) to take all action that may be necessary 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. 

     (iii) The Institutional Trustee shall have the power and
authority to act on behalf of the Trust with respect to any of the duties,
liabilities, powers or the authority of the Administrators set forth in Section
2.6(a)(i)(D), (E) and (F) herein but shall not have a duty to do any such act
unless specifically requested to do so in writing by the Sponsor, and shall then
be fully protected in acting pursuant to such written request; and in the event
of a conflict between the action of the Administrators and the action of the
Institutional Trustee, the action of the Institutional Trustee shall prevail.


     (b) So
long as this Declaration remains in effect, the Trust (or the Trustees or
Administrators acting on behalf of the Trust) shall not undertake any business,
activities or transaction except as expressly provided herein or contemplated
hereby. In particular, neither the Trustees nor the Administrators may cause the
Trust to (i) acquire any investments or engage in any activities not authorized
by this Declaration, (ii) sell, assign, transfer, exchange, mortgage, pledge,
set-off or otherwise dispose of any of the Trust Property or interests therein,
including to Holders, except as expressly provided herein, (iii) take any action
that would reasonably be expected (x) to cause the Trust to fail or cease to
qualify as a “grantor trust” for United States federal income tax purposes or
(y) to require the trust to register as an Investment Company under the
Investment Company Act, (iv) incur any indebtedness for borrowed money or issue
any other debt or (v) take or consent to any action that would result in the
placement of a lien on any of the Trust Property. The Institutional Trustee
shall, at the sole cost and expense of the Trust, defend all claims and demands
of all Persons at any time claiming any lien on any of the Trust Property
adverse to the interest of the Trust or the Holders in their capacity as
Holders. 

     (c) In
connection with the issuance and sale of the Capital Securities, the Sponsor
shall have the right and responsibility to assist the Trust with respect to, or
effect on behalf of the Trust, the following (and any actions taken by the
Sponsor in furtherance of the following prior to the date of this Declaration
are hereby ratified and confirmed in all respects): 

          (i) the taking of any action necessary to obtain an exemption
from the Securities Act; 

          (ii) the determination of the States in which to take
appropriate action to qualify or register for sale all or part of the Capital
Securities and the determination of any and all such acts, other than actions
which must be taken by or on behalf of the Trust, and the advice to the
Administrators of actions they must take on behalf of the Trust, and the
preparation for execution and filing of any documents to be executed and filed
by the Trust or on behalf of the Trust, as the Sponsor deems necessary or
advisable in order to comply with the applicable laws of any such States in
connection with the sale of the Capital Securities; 

13





          (iii) the negotiation of the terms of, and the execution and
delivery of, the Subscription Agreement providing for the sale of the Capital
Securities; and 

          (iv) the taking of any other actions necessary or desirable to
carry out any of the foregoing activities. 

     (d)
Notwithstanding anything herein to the contrary, the Administrators and the
Holders of a Majority in liquidation amount of the Common Securities are
authorized and directed to conduct the affairs of the Trust and to operate the
Trust so that the Trust will not (i) be deemed to be an Investment Company
required to be registered under the Investment Company Act, and (ii) fail to be
classified as a “grantor trust” for United States federal income tax purposes.
The Administrators and the Holders of a Majority in liquidation amount of the
Common Securities shall not take any action inconsistent with the treatment of
the Debentures as indebtedness of the Debenture Issuer for United States federal
income tax purposes. In this connection, the Administrators and the Holders of a
Majority in liquidation amount of the Common Securities are authorized to take
any action, not inconsistent with applicable laws, the Certificate of Trust or
this Declaration, as amended from time to time, that each of the Administrators
and the Holders of a Majority in liquidation amount of the Common Securities
determines in their discretion to be necessary or desirable for such purposes.


     (e) All
expenses incurred by the Administrators or the Trustees pursuant to this Section
2.6 shall be reimbursed by the Sponsor, and the Trustees and the Administrators
shall have no obligations with respect to such expenses (for purposes of
clarification, this Section 2.6(e) does not contemplate the payment by the
Sponsor of acceptance or annual administration fees owing to the Trustees under
this Declaration or the fees and expenses of the Trustees’ counsel in connection
with the closing of the transactions contemplated by this Declaration).


     (f) The assets of the Trust shall
consist of the Trust Property. 

     (g) Legal
title to all Trust Property shall be vested at all times in the Institutional
Trustee (in its capacity as such) and shall be held and administered by the
Institutional Trustee and the Administrators for the benefit of the Trust in
accordance with this Declaration. 

     (h) If
the Institutional Trustee or any Holder has instituted any proceeding to enforce
any right or remedy under this Declaration and such proceeding has been
discontinued or abandoned for any reason, or has been determined adversely to
the Institutional Trustee or to such Holder, then and in every such case the
Sponsor, the Institutional Trustee and the Holders shall, subject to any
determination in such proceeding, be restored severally and respectively to
their former positions hereunder, and thereafter all rights and remedies of the
Institutional Trustee and the Holders shall continue as though no such
proceeding had been instituted. 

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     Section 2.7.
Prohibition of Actions by the Trust and the
Institutional Trustee. 

     (a) The
Trust shall not, and the Institutional Trustee shall cause the Trust not to,
engage in any activity other than as required or authorized by this Declaration.
In particular, the Trust shall not and the Institutional Trustee shall cause the
Trust not to: 

     (i) invest any proceeds received by the Trust from holding the
Debentures, but shall distribute all such proceeds to Holders of the Securities
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 other
than as expressly provided herein; 

     (vi) issue any securities or other evidences of beneficial
ownership of, or beneficial interest in, the Trust other than the Securities;


     (vii) carry on any “trade or business” as that phrase is used
in the Code; or 

     (viii) other than as provided in this Declaration (including
Annex I), (A) direct the time, method and place of exercising any trust or power
conferred 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 a written opinion of counsel to the effect that
such modification will not cause the Trust to cease to be classified as a
“grantor trust” for United States federal income tax purposes. 

     Section 2.8.
Powers and Duties of the
Institutional Trustee. 

     (a) The
legal title to the Debentures shall be owned by and held of record in the name
of the Institutional Trustee in trust for the benefit of the Trust and the
Holders of the Securities. The right, title and interest of the Institutional
Trustee to the Debentures shall vest automatically in each Person who may
hereafter be appointed as Institutional Trustee in accordance with Section 4.5.
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
Institutional Trustee shall not transfer its right, title and interest in the
Debentures to the Administrators or to the Delaware Trustee. 

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     (c) The Institutional Trustee shall:


     (i) establish and maintain a segregated non-interest bearing
trust account (the “Property Account”) in the name of and under the exclusive
control of the Institutional Trustee, and maintained in the Institutional
Trustee’s trust department, on behalf of the Holders of the Securities and, upon
the receipt of payments of funds made in respect of the Debentures held by the
Institutional Trustee, deposit such funds into the Property Account and make
payments, or cause the Paying Agent to make payments, to the Holders of the
Capital Securities and Holders of the Common Securities from the Property
Account in accordance with Section 5.1. Funds in the Property Account shall be
held uninvested until disbursed in accordance with this Declaration; 

     (ii) engage in such ministerial activities as shall be
necessary or appropriate to effect the redemption of the Capital Securities and
the Common Securities to the extent the Debentures are redeemed or mature; and


     (iii) upon written notice of distribution issued by the
Administrators 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 circumstances pursuant to the terms of the Securities. 

     (d) The
Institutional Trustee may bring or defend, pay, collect, compromise, arbitrate,
resort to legal action with respect to, or otherwise adjust claims or demands of
or against, the Trust which arises out of or in connection with an Event of
Default of which a Responsible Officer of the Institutional Trustee has actual
knowledge or arises out of the Institutional Trustee’s duties and obligations
under this Declaration; 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 interest or principal on the Debentures on the date
such interest or principal is otherwise payable (or in the case of redemption,
on the redemption date), then a Holder of the Capital Securities may directly
institute a proceeding for enforcement of payment to such Holder of the
principal of 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 the
Capital Securities to the extent of any payment made by the Debenture Issuer to
such Holder of the Capital Securities in such Direct Action; provided, however,
that no Holder of the Common Securities may exercise such right of subrogation
so long as an Event of Default with respect to the Capital Securities has
occurred and is continuing. 

     (e) The Institutional Trustee shall
continue to serve as a Trustee until either: 

     (i) the Trust has been completely liquidated and the proceeds
of the liquidation distributed to the Holders of the Securities pursuant to the
terms of the Securities and this Declaration; or 

     (ii) a Successor Institutional
Trustee has been appointed and has accepted that appointment in accordance with
Section 4.5.

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     (f) The
Institutional Trustee shall have the legal power to exercise all of the rights,
powers and privileges of a Holder of the Debentures under the Indenture and, if
an Event of Default occurs and is continuing, the Institutional Trustee may, for
the benefit of Holders of the Securities, enforce its rights as holder of the
Debentures subject to the rights of the Holders pursuant to this Declaration
(including Annex I) and the terms of the Securities. 

     The
Institutional Trustee must exercise the powers set forth in this Section 2.8 in
a manner that is consistent with the purposes and functions of the Trust set out
in Section 2.3, and the Institutional Trustee shall not take any action that is
inconsistent with the purposes and functions of the Trust set out in Section
2.3. 

     Section 2.9. Certain Duties and
Responsibilities of the Trustees and Administrators. 

     (a) The
Institutional Trustee, before the occurrence of any Event of Default and after
the curing or waiving of all such Events of Default that may have occurred,
shall undertake to perform only such duties as are specifically set forth in
this Declaration and no implied covenants shall be read into this Declaration
against the Institutional Trustee. In case an Event of Default has occurred
(that has not been cured or waived pursuant to Section 6.7), the Institutional
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) The
duties and responsibilities of the Trustees and the Administrators shall be as
provided by this Declaration. Notwithstanding the foregoing, no provision of
this Declaration shall require any Trustee or Administrator to expend or risk
their own funds or otherwise incur any financial liability in the performance of
any of their duties hereunder, or in the exercise of any of their rights or
powers if it shall have reasonable grounds to believe that repayment of such
funds or adequate protection against such risk of liability is not reasonably
assured to it. Whether or not therein expressly so provided, every provision of
this Declaration relating to the conduct or affecting the liability of or
affording protection to the Trustees or Administrators shall be subject to the
provisions of this Article. Nothing in this Declaration shall be construed to
relieve an Administrator or a Trustee from liability for its own negligent act,
its own negligent failure to act, or its own willful misconduct. To the extent
that, at law or in equity, a Trustee or an Administrator has duties and
liabilities relating to the Trust or to the Holders, such Trustee or such
Administrator shall not be liable to the Trust or to any Holder for such
Trustee’s or such Administrator’s 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 the Administrators or the Trustee
otherwise existing at law or in equity, are agreed by the Sponsor and the
Holders to replace such other duties and liabilities of the Administrators or
the Trustees. 

     (c) All
payments made by the Institutional Trustee or a Paying Agent in respect of the
Securities shall be made only from the revenue and proceeds from the Trust
Property and only to the extent that there shall be sufficient revenue or
proceeds from the Trust Property to enable the Institutional Trustee or a Paying
Agent to make payments in accordance with the terms hereof. Each Holder, by its
acceptance of a Security, agrees that it will look solely to the revenue and
proceeds from the Trust Property to the extent legally available for
distribution to it as herein provided and that the Trustees and the
Administrators are not personally liable to it for any amount distributable in
respect of any Security or for any other liability in respect of any Security.
This Section 2.9(c) does not limit the liability of the Trustees expressly set
forth elsewhere in this Declaration.

17





     (d) The
Institutional Trustee shall not be liable for its own acts or omissions
hereunder except as a result of its own negligent action, its own negligent
failure to act, in its own bad faith or its own willful misconduct, except that:


     (i) the Institutional Trustee shall not be liable for any
error of judgment made in good faith by an Authorized Officer of the
Institutional Trustee, unless it shall be proved that the Institutional Trustee
was negligent in ascertaining the pertinent facts; 

     (ii) the Institutional 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 Capital Securities or the Common Securities, as
applicable, relating to the time, method and place of conducting any proceeding
for any remedy available to the Institutional Trustee, or exercising any trust
or power conferred upon the Institutional Trustee under this Declaration;


     (iii) the Institutional Trustee’s sole duty with respect to
the custody, safekeeping and physical preservation of the Debentures and the
Property Account shall be to deal with such property in a similar manner as the
Institutional Trustee deals with similar property for its fiduciary accounts
generally, subject to the protections and limitations on liability afforded to
the Institutional Trustee under this Declaration; 

     (iv) the Institutional Trustee shall not be liable for any
interest on any money received by it except as it may otherwise agree in writing
with the Sponsor; and money held by the Institutional Trustee need not be
segregated from other funds held by it except in relation to the Property
Account maintained by the Institutional Trustee pursuant to Section 2.8(c)(i)
and except to the extent otherwise required by law; and 

     (v) the Institutional Trustee shall not be responsible for
monitoring the compliance by the Administrators or the Sponsor with their
respective duties under this Declaration, nor shall the Institutional Trustee be
liable for any default or misconduct of the Administrators or the Sponsor.


     Section 2.10. Certain Rights of
Institutional Trustee.
Subject to the provisions of Section 2.9:


     (a) the
Institutional Trustee may conclusively rely and shall fully be protected in
acting or refraining from acting in good faith upon any resolution, opinion of
counsel, certificate, written representation of a Holder or transferee,
certificate of auditors or any other certificate, statement, instrument,
opinion, report, notice, request, direction, consent, order, appraisal, bond,
debenture, note, other evidence of indebtedness or other paper or document
believed by it to be genuine and to have been signed, sent or presented by the
proper party or parties;

18





     (b) if
(i) in performing its duties under this Declaration, the Institutional Trustee
is required to decide between alternative courses of action, (ii) in construing
any of the provisions of this Declaration, the Institutional Trustee finds the
same ambiguous or inconsistent with any other provisions contained herein, or
(iii) the Institutional Trustee is unsure of the application of any provision of
this Declaration, then, except as to any matter as to which the Holders of
Capital Securities are entitled to vote under the terms of this Declaration, the
Institutional Trustee may deliver a notice to the Sponsor requesting the
Sponsor’s written instructions as to the course of action to be taken and the
Institutional Trustee shall take such action, or refrain from taking such
action, as the Institutional Trustee shall be instructed in writing, in which
event the Institutional Trustee shall have no liability except for its own
negligence or willful misconduct; 

     (c) any
direction or act of the Sponsor or the Administrators contemplated by this
Declaration shall be sufficiently evidenced by an Officers’ Certificate;


     (d)
whenever in the administration of this Declaration, the Institutional Trustee
shall deem it desirable that a matter be proved or established before
undertaking, suffering or omitting any action hereunder, the Institutional
Trustee (unless other evidence is herein specifically prescribed) may request
and conclusively rely upon an Officers’ Certificate as to factual matters which,
upon receipt of such request, shall be promptly delivered by the Sponsor or the
Administrators; 

     (e) the
Institutional Trustee shall have no duty to see to any recording, filing or
registration of any instrument (including any financing or continuation
statement or any filing under tax or securities laws) or any rerecording,
refiling or reregistration thereof; 

     (f) the
Institutional Trustee may consult with counsel of its selection (which counsel
may be counsel to the Sponsor or any of its Affiliates) and the advice of such
counsel shall be full and complete authorization and protection in respect of
any action taken, suffered or omitted by it hereunder in good faith and in
reliance thereon and in accordance with such advice; the Institutional Trustee
shall have the right at any time to seek instructions concerning the
administration of this Declaration from any court of competent jurisdiction;


     (g) the
Institutional 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 of
the Holders pursuant to this Declaration, unless such Holders shall have offered
to the Institutional Trustee security or indemnity reasonably satisfactory to it
against the costs, expenses and liabilities which might be incurred by it in
compliance with such request or direction; provided, that nothing contained in
this Section 2.10(g) shall be taken to relieve the Institutional Trustee,
subject to Section 2.9(b), upon the occurrence of an Event of Default (that has
not been cured or waived pursuant to Section 6.7), to 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;

19





     (h) the
Institutional Trustee shall not be bound to make any investigation into the
facts or matters stated in any resolution, certificate, statement, instrument,
opinion, report, notice, request, consent, order, approval, bond, debenture,
note or other evidence of indebtedness or other paper or document, unless
requested in writing to do so by one or more Holders, but the Institutional
Trustee may make such further inquiry or investigation into such facts or
matters as it may see fit; 

     (i) the
Institutional Trustee may execute any of the trusts or powers hereunder or
perform any duties hereunder either directly or by or through its agents or
attorneys and the Institutional Trustee shall not be responsible for any
misconduct or negligence on the part of or for the supervision of, any such
agent or attorney appointed with due care by it hereunder; 

     (j)
whenever in the administration of this Declaration the Institutional Trustee
shall deem it desirable to receive instructions with respect to enforcing any
remedy or right or taking any other action hereunder the Institutional Trustee
(i) may request instructions from the Holders of the Capital Securities which
instructions may only be given by the Holders of the same proportion in
liquidation amount of the Capital Securities as would be entitled to direct the
Institutional Trustee under the terms of the Capital 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 fully protected in acting in accordance with such instructions;


     (k)
except as otherwise expressly provided in this Declaration, the Institutional
Trustee shall not be under any obligation to take any action that is
discretionary under the provisions of this Declaration; 

     (l) when
the Institutional Trustee incurs expenses or renders services in connection with
a Bankruptcy Event, such expenses (including the fees and expenses of its
counsel) and the compensation for such services are intended to constitute
expenses of administration under any bankruptcy law or law relating to creditors
rights generally; 

     (m) the
Institutional Trustee shall not be charged with knowledge of an Event of Default
unless a Responsible Officer of the Institutional Trustee obtains actual
knowledge of such event or the Institutional Trustee receives written notice of
such event from any Holder, the Sponsor or the Debenture Trustee; 

     (n) any
action taken by the Institutional Trustee or its agents hereunder shall bind the
Trust and the Holders of the Securities, and the signature of the Institutional
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 Institutional 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 Institutional Trustee’s or its agent’s taking such action; and


20





     (o) no
provision of this Declaration shall be deemed to impose any duty or obligation
on the Institutional 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 Institutional 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 Institutional Trustee shall be
construed to be a duty. 

     Section 2.11. Delaware
Trustee. Notwithstanding any other provision of this Declaration other than
Section 4.1, the Delaware Trustee shall not be entitled to exercise any powers,
nor shall the Delaware Trustee have any of the duties and responsibilities of
any of the Trustees or the Administrators described in this Declaration (except
as may be required under the Statutory Trust Act). Except as set forth in
Section 4.1, the Delaware Trustee shall be a Trustee for the sole and limited
purpose of fulfilling the requirements of § 3807 of the Statutory Trust Act.


     Section 2.12. Execution of
Documents. Unless otherwise determined in writing by the Institutional Trustee, and
except as otherwise required by the Statutory Trust Act, the Institutional
Trustee, or any one or more of the Administrators, as the case may be, is
authorized to execute on behalf of the Trust any documents that the Trustees or
the Administrators, as the case may be, have the power and authority to execute
pursuant to Section 2.6. 

     Section 2.13. 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 2.14. Duration of
Trust. The Trust, unless earlier dissolved pursuant to the provisions of Article
VII hereof, shall be in existence for 30 years from the Closing Date.


     Section 2.15.
Mergers. 

     (a) The
Trust may not consolidate, amalgamate, merge with or into, or be replaced by, or
convey, transfer or lease its properties and assets substantially as an entirety
to any corporation or other body, except as described in Section 2.15(b) and (c)
and except in connection with the liquidation of the Trust and the distribution
of the Debentures to Holders of Securities pursuant to Section 7.1(a)(iv) of the
Declaration or Section 4 of Annex I. 

     (b) The
Trust may, with the consent of the Institutional Trustee and without the consent
of the Holders of the Capital Securities, consolidate, amalgamate, merge with or
into, or be replaced by a trust organized as such under the laws of any state;
provided that: 

     (i) if the Trust is not the surviving entity, such successor
entity (the “Successor Entity”) either: 

21





     (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
that 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 substantially the same powers and duties as the
Institutional Trustee as the Holder of the Debentures; 

     (iii) such merger, consolidation, amalgamation or replacement
does not adversely affect the rights, preferences and privileges of the Holders
of the Capital Securities (including any Successor Securities) in any material
respect; 

     (iv) the Institutional Trustee receives written confirmation
from Moody’s Investor Services, Inc. and any other nationally recognized
statistical rating organization that rates securities issued by the Sponsor, if
any, that it will not reduce or withdraw the rating of any such securities
because of such merger, conversion, consolidation, amalgamation or replacement;


     (v) such Successor Entity has a purpose substantially
identical to that of the Trust; 

     (vi) prior to such merger, consolidation, amalgamation or
replacement, the Trust has received an opinion of a independent counsel to the
Trust experienced in such matters to the effect that: 

     (A) such merger, consolidation, amalgamation or replacement
does not adversely affect the rights, preferences and privileges of the Holders
of the Securities (including any Successor Securities) in any material respect;


     (B) following such merger, consolidation, amalgamation or
replacement, neither the Trust nor the Successor Entity will be required to
register as an Investment Company; and 

     (C) following such merger, consolidation, amalgamation or
replacement, the Trust (or the Successor Entity) will continue to be classified
as a “grantor trust” for United States federal income tax purposes; 

     (vii) the Sponsor guarantees the obligations of such Successor
Entity under the Successor Securities at least to the extent provided by the
Guarantee; 

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     (viii) the Sponsor owns 100% of the common securities of any
Successor Entity; and 

     (ix) prior to such merger, consolidation, amalgamation or
replacement, the Institutional Trustee shall have received an Officers’
Certificate of the Administrators and an opinion of counsel, each to the effect
that all conditions precedent under this Section 2.15(b) to such transaction
have been satisfied. 

     (c)
Notwithstanding Section 2.15(b), the Trust shall not, except with the consent of
Holders of 100% in aggregate liquidation amount of the Securities, consolidate,
amalgamate, merge with or into, or be replaced by any other entity or permit any
other entity to consolidate, amalgamate, merge with or into, or replace it if
such consolidation, amalgamation, merger or replacement would cause the Trust or
Successor Entity to be classified as other than a grantor trust for United
States federal income tax purposes. 

ARTICLE III 

SPONSOR 

     Section 3.1. Sponsor’s Purchase
of Common Securities. On the Closing Date, the Sponsor will purchase all of the
Common Securities issued by the Trust in an amount at least equal to 3% of the
capital of the Trust, at the same time as the Capital Securities are sold.


     Section 3.2. 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, or direct the Administrators to engage in, the following activities:


     (a) to
determine the States in which to take appropriate action to qualify the Trust or
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 Trust, as the Sponsor deems
necessary or advisable in order to comply with the applicable laws of any such
States, to protect the limited liability of the Holders of the Capital
Securities or to enable the Trust to effect the purposes for which it was
created;

     (b) to
negotiate the terms of and/or execute on behalf of the Trust, the Subscription
Agreement and other related agreements providing for the sale of the Capital
Securities; and 

     (c) to
give the Holders written notice of a potential Change of Control Transaction at
least twenty (20) days prior to consummating the Change of Control Transaction.


     Section 3.3. Expenses. In connection with the offering, sale and issuance of the
Debentures to the Trust and in connection with the sale of the Securities by the
Trust, the Sponsor, in its capacity as Debenture Issuer, shall: 

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     (a) pay
all reasonable costs and expenses owing to the Debenture Trustee pursuant to
Section 6.6 of the Indenture; 

     (b) be
responsible for and shall pay all debts and obligations (other than with respect
to the Securities) and all costs and expenses of the Trust, the offering, sale
and issuance of the Securities (including fees to the placement agents in
connection therewith), the costs and expenses (including reasonable counsel fees
and expenses) of the Institutional Trustee and the Administrators, the costs and
expenses relating to the operation of the Trust, including, without limitation,
costs and expenses of accountants, attorneys, statistical or bookkeeping
services, expenses for printing and engraving and computing or accounting
equipment, Paying Agents, Registrars, Transfer Agents, duplicating, travel and
telephone and other telecommunications expenses and costs and expenses incurred
in connection with the acquisition, financing, and disposition of Trust assets
and the enforcement by the Institutional Trustee of the rights of the Holders
(for purposes of clarification, this Section 3.3(b) does not contemplate the
payment by the Sponsor of acceptance or annual administration fees owing to the
Trustees pursuant to the services to be provided by the Trustees under this
Declaration or the fees and expenses of the Trustees’ counsel in connection with
the closing of the transactions contemplated by this Declaration); and


     (c) pay
any and all taxes (other than United States withholding taxes attributable to
the Trust or its assets) and all liabilities, costs and expenses with respect to
such taxes of the Trust. 

     The
Sponsor’s obligations under this Section 3.3 shall be for the benefit of, and
shall be enforceable by, any Person to whom such debts, obligations, costs,
expenses and taxes are owed (a “Creditor”) whether or not such Creditor has
received notice hereof. Any such Creditor may enforce the Sponsor’s obligations
under this Section 3.3 directly against the Sponsor and the Sponsor irrevocably
waives any right or remedy to require that any such Creditor take any action
against the Trust or any other Person before proceeding against the Sponsor. The
Sponsor agrees to execute such additional agreements as may be necessary or
desirable in order to give full effect to the provisions of this Section 3.3.


     Section 3.4. Right to
Proceed. The Sponsor acknowledges the rights of Holders to institute a Direct
Action as set forth in Section 2.8(d) hereto. 

ARTICLE IV 

INSTITUTIONAL TRUSTEE AND
ADMINISTRATORS 

     Section 4.1.
Number of
Trustees. The number of Trustees shall initially be two, 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 Holder of a Majority in liquidation amount of the
Common Securities voting as a class at a meeting of the Holder of the Common
Securities; provided, however, that there shall be a Delaware Trustee if
required by Section 4.2; and there shall always be one Trustee who shall be the
Institutional Trustee, and such Trustee may also serve as Delaware Trustee if it
meets the applicable requirements, in which case Section 2.11 shall have no
application to such entity in its capacity as Institutional Trustee.

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     Section 4.2.
Delaware Trustee;
Eligibility. 

     (a) If
required by the Statutory Trust Act, one Trustee (the “Delaware Trustee”) shall
be: 

     (i) a natural person at least 21
years of age who is a resident of the State of Delaware; or 

     (ii) if not a natural person, an entity which is organized
under the laws of the United States or any state thereof or the District of
Columbia, has its principal place of business in the State of Delaware, and
otherwise meets the requirements of applicable law, including § 3807 of the
Statutory Trust Act. 

     (b) The initial Delaware Trustee
shall be Wilmington Trust Company. 

     Section 4.3.
Institutional Trustee;
Eligibility. 

     (a) There shall at all times be one
Trustee which shall: 

     (i) not be an Affiliate of the
Sponsor; 

     (ii) not offer or provide credit or
credit enhancement to the Trust; and 

     (iii) be a banking corporation or trust company organized and
doing business under the laws of the United States of America or any state
thereof or the District of Columbia, authorized under such laws to exercise
corporate trust powers, having a combined capital and surplus of at least 50
million U.S. dollars ($50,000,000.00), and subject to supervision or examination
by Federal, state, 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 4.3(a)(iii), 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 Institutional Trustee shall cease to be eligible to so act under
Section 4.3(a), the Institutional Trustee shall immediately resign in the manner
and with the effect set forth in Section 4.5. 

     (c) If
the Institutional Trustee has or shall acquire any “conflicting interest” within
the meaning of Section 310(b) of the Trust Indenture Act of 1939, as amended,
the Institutional Trustee shall either eliminate such
interest or resign, to the extent and in the manner provided by, and subject to
this Declaration. 

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     (d) The initial Institutional
Trustee shall be Wilmington Trust Company. 

     Section 4.4. Administrators.
Each Administrator shall be a U.S. Person, 21
years of age or older and authorized to bind the Sponsor. The initial
Administrators shall be Frank H. Sanfilippo, Deborah N. Barstow and Betty L.
Lewis. There shall at all times be at least one Administrator. Except where a
requirement for action by a specific number of Administrators is expressly set
forth in this Declaration and except with respect to any action the taking of
which is the subject of a meeting of the Administrators, any action required or
permitted to be taken by the Administrators may be taken by, and any power of
the Administrators may be exercised by, or with the consent of, any one such
Administrator. 

     Section 4.5. Appointment, Removal and Resignation of Trustees and
Administrators.

     (a) No
resignation or removal of any Trustee (the “Relevant Trustee”) and no appointment
of a successor Trustee pursuant to this Article shall become effective until the
acceptance of appointment by the successor Trustee in accordance with the
applicable requirements of this Section 4.5. 

     (b)
Subject to Section 4.5(a), a Relevant Trustee may resign at any time by giving
written notice thereof to the Holders of the Securities and by appointing a
successor Relevant Trustee. Upon the resignation of the Institutional Trustee,
the Institutional Trustee shall appoint a successor by requesting from at least
three Persons meeting the eligibility requirements their expenses and charges to
serve as the successor Institutional Trustee on a form provided by the
Administrators, and selecting the Person who agrees to the lowest expense and
charges (the “Successor Institutional
Trustee”). If the instrument of acceptance by
the successor Relevant Trustee required by this Section 4.5 shall not have been
delivered to the Relevant Trustee within 60 days after the giving of such notice
of resignation or delivery of the instrument of removal, the Relevant Trustee
may petition, at the expense of the Trust, any federal, state or District of
Columbia court of competent jurisdiction for the appointment of a successor
Relevant Trustee. Such court may thereupon, after prescribing such notice, if
any, as it may deem proper, appoint a Relevant Trustee. The Institutional
Trustee shall have no liability for the selection of such successor pursuant to
this Section 4.5. 

     (c)
Unless an Event of Default shall have occurred and be continuing, any Trustee
may be removed at any time by an act of the Holders of a Majority in liquidation
amount of the Common Securities. If any Trustee shall be so removed, the Holders
of the Common Securities, by act of the Holders of a Majority in liquidation
amount of the Common Securities delivered to the Relevant Trustee, shall
promptly appoint a successor Relevant Trustee, and such successor Trustee shall
comply with the applicable requirements of this Section 4.5. If an Event of
Default shall have occurred and be continuing, the Institutional Trustee or the
Delaware Trustee, or both of them, may be removed by the act of the Holders of a
Majority in liquidation amount of the Capital Securities, delivered to the
Relevant Trustee (in its individual capacity and on behalf of the
Trust).

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If any Trustee shall be so removed, the
Holders of Capital Securities, by act of the Holders of a Majority in
liquidation amount of the Capital Securities then outstanding delivered to the
Relevant Trustee, shall promptly appoint a successor Relevant Trustee or
Trustees, and such successor Trustee shall comply with the applicable
requirements of this Section 4.5. If no successor Relevant Trustee shall have
been so appointed by the Holders of a Majority in liquidation amount of the
Capital Securities and accepted appointment in the manner required by this
Section 4.5 within 30 days after delivery of an instrument of removal, the
Relevant Trustee or any Holder who has been a Holder of the Securities for at
least six months may, on behalf of himself and all others similarly situated,
petition any federal, state or District of Columbia court of competent
jurisdiction for the appointment of a successor Relevant Trustee. Such court may
thereupon, after prescribing such notice, if any, as it may deem proper, appoint
a successor Relevant Trustee or Trustees, so long as the Institutional Trustee
has exercised due care in selecting such successor. 

     (d) The
Institutional Trustee shall give notice of each resignation and each removal of
a Trustee and each appointment of a successor Trustee to all Holders and to the
Sponsor. Each notice shall include the name of the successor Relevant Trustee
and the address of its Corporate Trust Office if it is the Institutional
Trustee. 

     (e)
Notwithstanding the foregoing or any other provision of this Declaration, in the
event a Delaware Trustee who is a natural person dies or is adjudged by a court
to have become incompetent or incapacitated, the vacancy created by such death,
incompetence or incapacity may be filled by the Institutional Trustee following
the procedures in this Section 4.5 (with the successor being a Person who
satisfies the eligibility requirement for a Delaware Trustee set forth in this
Declaration) (the “Successor Delaware
Trustee”). 

     (f) In
case of the appointment hereunder of a successor Relevant Trustee, the retiring
Relevant Trustee and each successor Relevant Trustee with respect to the
Securities shall execute and deliver an amendment hereto wherein each successor
Relevant Trustee shall accept such appointment and which (a) shall contain such
provisions as shall be necessary or desirable to transfer and confirm to, and to
vest in, each successor Relevant Trustee all the rights, powers, trusts and
duties of the retiring Relevant Trustee with respect to the Securities and the
Trust and (b) shall add to or change any of the provisions of this Declaration
as shall be necessary to provide for or facilitate the administration of the
Trust by more than one Relevant Trustee, it being understood that nothing herein
or in such amendment shall constitute such Relevant Trustees co-trustees and
upon the execution and delivery of such amendment the resignation or removal of
the retiring Relevant Trustee shall become effective to the extent provided
therein and each such successor Relevant Trustee, without any further act, deed
or conveyance, shall become vested with all the rights, powers, trusts and
duties of the retiring Relevant Trustee; but, on request of the Trust or any
successor Relevant Trustee, such retiring Relevant Trustee shall duly assign,
transfer and deliver to such successor Relevant Trustee all Trust Property, all
proceeds thereof and money held by such retiring Relevant Trustee hereunder with
respect to the Securities and the Trust subject to the payment of all unpaid
fees, expenses and indemnities of such retiring Relevant Trustee. 

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     (g) No
Institutional Trustee or Delaware Trustee shall be liable for the acts or
omissions to act of any Successor Institutional Trustee or Successor Delaware
Trustee, as the case may be. 

     (h) The
Holders of the Capital Securities will have no right to vote to appoint, remove
or replace the Administrators, which voting rights are vested exclusively in the
Holders of the Common Securities. 

     (i) Any
successor Delaware Trustee shall file an amendment to the Certificate of Trust
with the Secretary of State of the State of Delaware identifying the name and
principal place of business of such Delaware Trustee in the State of Delaware.


     Section 4.6. Vacancies Among
Trustees. If a Trustee ceases to hold office for any reason and the number of
Trustees is not reduced pursuant to Section 4.1, a vacancy shall occur. A
resolution certifying the existence of such vacancy by the Trustees or, if there
are more than two, a majority of the Trustees, shall be conclusive evidence of
the existence of such vacancy. The vacancy shall be filled with a Trustee
appointed in accordance with Section 4.5. 

     Section 4.7. 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 or terminate this
Declaration. Whenever a vacancy in the number of Trustees shall occur, until
such vacancy is filled by the appointment of a Trustee in accordance with
Section 4.5, the Institutional Trustee shall have all the powers granted to the
Trustees and shall discharge all the duties imposed upon the Trustees by this
Declaration. 

     Section 4.8. Meetings of the
Trustees and the Administrators.
Meetings of the Administrators shall be held
from time to time upon the call of an Administrator. Regular meetings of the
Administrators may be held in person in the United States or by telephone, at a
place (if applicable) and time fixed by resolution of the Administrators. Notice
of any in-person meetings of the Trustees with the Administrators or meetings of
the Administrators shall be hand delivered or otherwise delivered in writing
(including by facsimile, with a hard copy by overnight courier) not less than 48
hours before such meeting. Notice of any telephonic meetings of the Trustees
with the Administrators or meetings of the Administrators 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 a Trustee or an Administrator, as the case may be, at a meeting
shall constitute a waiver of notice of such meeting except where the Trustee or
an Administrator, as the case may be, attends a meeting for the express purpose
of objecting to the transaction of any activity on the grounds that the meeting
has not been lawfully called or convened. Unless provided otherwise in this
Declaration, any action of the Trustees or the Administrators, as the case may
be, may be taken at a meeting by vote of a majority of the Trustees or the
Administrators 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 Trustees
or the Administrators. Meetings of the Trustees and the Administrators together
shall be held from time to time upon the call of any Trustee or an
Administrator. 

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     Section 4.9.
Delegation of
Power. 

     (a) Any
Administrator may, by power of attorney consistent with applicable law, delegate
to any other natural person over the age of 21 that is a U.S. Person his or her
power for the purpose of executing any documents contemplated in Section 2.6;
and 

     (b) the
Administrators shall have power to delegate from time to time to such of their
number the doing of such things and the execution of such instruments either in
the name of the Trust or the names of the Administrators or otherwise as the
Administrators 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 4.10. Conversion,
Consolidation or Succession to Business. Any Person into which the
Institutional Trustee or the Delaware Trustee may be merged or converted or with
which it may be consolidated, or any Person resulting from any merger,
conversion or consolidation to which the Institutional Trustee or the Delaware
Trustee shall be a party, or any Person succeeding to all or substantially all
the corporate trust business of the Institutional Trustee or the Delaware
Trustee shall be the successor of the Institutional Trustee or the Delaware
Trustee hereunder, provided such Person shall be otherwise qualified and
eligible under this Article and, provided, further, that such Person shall file
an amendment to the Certificate of Trust with the Secretary of State of the
State of Delaware as contemplated in Section 4.5(i). 

ARTICLE V 

DISTRIBUTIONS 

     Section 5.1. Distributions. Holders shall receive Distributions in accordance with the
applicable terms of the relevant Holder’s Securities. Distributions shall be
made on the Capital Securities and the Common Securities in accordance with the
preferences set forth in their respective terms. If and to the extent that the
Debenture Issuer makes a payment of Interest or any principal on the Debentures
held by the Institutional Trustee, the Institutional Trustee shall and is
directed, to the extent funds are available for that purpose, to make a
distribution (a “Distribution”) of such amounts to Holders. 

ARTICLE VI 

ISSUANCE OF SECURITIES


     Section 6.1.
General Provisions Regarding
Securities. 

     (a) The
Administrators shall, on behalf of the Trust, issue one series of capital
securities substantially in the form of Exhibit A-1 representing undivided
beneficial interests in the assets of the Trust having such terms as are set
forth in Annex I and one series of common securities
representing undivided beneficial interests in the assets of the Trust having
such terms as are set forth in Annex I. The Trust shall issue no securities or
other interests in the assets of the Trust other than the Capital Securities and
the Common Securities. The Capital Securities rank pari passu to, and payment thereon
shall be made Pro Rata with, the Common Securities except that, where an Event
of Default has occurred and is continuing, the rights of Holders of the Common
Securities to payment in respect of Distributions and payments upon liquidation,
redemption and otherwise are subordinated to the rights to payment of the
Holders of the Capital Securities as set forth in Annex I. 

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     (b) The
Certificates shall be signed on behalf of the Trust by one or more
Administrators. Such signature shall be the facsimile or manual signature of any
Administrator. In case any Administrator of the Trust who shall have signed any
of the Securities shall cease to be such Administrator before the Certificates
so signed shall be delivered by the Trust, such Certificates nevertheless may be
delivered as though the person who signed such Certificates had not ceased to be
such Administrator, and any Certificate may be signed on behalf of the Trust by
such persons who, at the actual date of execution of such Security, shall be an
Administrator of the Trust, although at the date of the execution and delivery
of the Declaration any such person was not such an Administrator. A Capital
Security shall not be valid until authenticated by the facsimile or manual
signature of an Authorized Officer of the Institutional Trustee. Such signature
shall be conclusive evidence that the Capital Security has been authenticated
under this Declaration. Upon written order of the Trust signed by one
Administrator, the Institutional Trustee shall authenticate the Capital
Securities for original issue. The Institutional Trustee may appoint an
authenticating agent that is a U.S. Person acceptable to the Trust to
authenticate the Capital Securities. A Common Security need not be so
authenticated. 

     (c) 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. 

     (d) Upon
issuance of the Securities as provided in this Declaration, the Securities so
issued shall be deemed to be validly issued, fully paid and, except as provided
in Section 9.1(b) with respect to the Common Securities, non-assessable.


     (e) Every
Person, by virtue of having become a Holder 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 and the Guarantee. 

     Section 6.2. Paying Agent,
Transfer Agent and Registrar.
The Trust shall maintain in Wilmington,
Delaware, an office or agency where the Capital Securities may be presented for
payment (“Paying Agent”), and an office or agency where Securities may be presented
for registration of transfer or exchange (the “Transfer Agent”). The Trust shall keep
or cause to be kept at such office or agency a register for the purpose of
registering Securities, transfers and exchanges of Securities, such register to
be held by a registrar (the “Registrar”). The Administrators may
appoint the Paying Agent, the Registrar and the Transfer Agent and may appoint
one or more additional Paying Agents or one or more co-Registrars, or one or
more co Transfer Agents in such other locations as it shall determine. The term
“Paying Agent” includes any additional paying agent, the term “Registrar”
includes any additional registrar or co Registrar and
the term “Transfer Agent” includes any additional transfer agent. The
Administrators may change any Paying Agent, Transfer Agent or Registrar at any
time without prior notice to any Holder. The Administrators shall notify the
Institutional Trustee of the name and address of any Paying Agent, Transfer
Agent and Registrar not a party to this Declaration. The Administrators hereby
initially appoint the Institutional Trustee to act as Paying Agent, Transfer
Agent and Registrar for the Capital Securities and the Common Securities. The
Institutional Trustee or any of its Affiliates in the United States may act as
Paying Agent, Transfer Agent or Registrar. 

30





     Section 6.3. Form and
Dating. The Capital Securities and the Institutional Trustee’s certificate of
authentication thereon 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 may be typed, printed, lithographed or engraved or may be produced
in any other manner as is reasonably acceptable to the Administrators, as
conclusively evidenced by their execution thereof. The Securities may have
letters, 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 Sponsor). The Trust at the
direction of the Sponsor shall furnish any such legend not contained in Exhibit
A-1 to the Institutional Trustee in writing. Each Capital Security shall be
dated on or before 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 Institutional Trustee, the Delaware Trustee, the Administrators
and the Sponsor, by their execution and delivery of this Declaration, expressly
agree to such terms and provisions and to be bound thereby. Capital Securities
will be issued only in blocks having a stated liquidation amount of not less
than $1,000.00 and any multiple of $1,000.00 in excess thereof. 

     The
Capital Securities are being offered and sold by the Trust pursuant to the
Subscription Agreement in definitive, registered form without coupons and with
the Restricted Securities Legend. 

     Section 6.4.
Mutilated, Destroyed, Lost or
Stolen Certificates. 

     If:

     (a) any
mutilated Certificates should be surrendered to the Registrar, or if the
Registrar shall receive evidence to its satisfaction of the destruction, loss or
theft of any Certificate; and 

     (b) there
shall be delivered to the Registrar, the Administrators and the Institutional
Trustee such security or indemnity as may be required by them to keep each of
them harmless;

then, in the absence of notice that
such Certificate shall have been acquired by a protected purchaser, an
Administrator on behalf of the Trust shall execute (and in the case of a Capital
Security Certificate, the Institutional Trustee shall authenticate) and deliver,
in exchange for or in lieu of any such mutilated, destroyed, lost or stolen
Certificate, a new Certificate of like denomination. In connection with the
issuance of any new Certificate under this Section 6.4, the Registrar or the
Administrators may require the payment of a sum sufficient to cover any tax or
other governmental charge that may be imposed in connection therewith. Any
duplicate Certificate issued pursuant to this Section shall constitute
conclusive evidence of an ownership interest in the relevant Securities, as if
originally issued, whether or not the lost, stolen or destroyed Certificate
shall be found at any time. 

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     Section 6.5. Temporary
Securities. Until definitive Securities are ready for delivery, the
Administrators may prepare and, in the case of the Capital Securities, the
Institutional Trustee shall authenticate, temporary Securities. Temporary
Securities shall be substantially in the form of definitive Securities but may
have variations that the Administrators consider appropriate for temporary
Securities. Without unreasonable delay, the Administrators shall prepare and, in
the case of the Capital Securities, the Institutional Trustee shall
authenticate, definitive Securities in exchange for temporary Securities.


     Section 6.6. Cancellation. The Administrators at any time may deliver Securities to the
Institutional Trustee for cancellation. The Registrar shall forward to the
Institutional Trustee any Securities surrendered to it for registration of
transfer, redemption or payment. The Institutional Trustee shall promptly cancel
all Securities surrendered for registration of transfer, payment, replacement or
cancellation and shall dispose of such canceled Securities as the Administrators
direct. The Administrators may not issue new Securities to replace Securities
that have been paid or that have been delivered to the Institutional Trustee for
cancellation. 

     Section 6.7.
Rights of Holders; Waivers of
Past Defaults. 

     (a) The
legal title to the Trust Property is vested exclusively in the Institutional
Trustee (in its capacity as such) in accordance with Section 2.5, and the
Holders shall not have any right or title therein other than the undivided
beneficial interest in the assets of the Trust conferred by their Securities and
they shall have no right to call for any partition or division of property,
profits or rights of the Trust except as described below. The Securities shall
be personal property giving only the rights specifically set forth therein and
in this Declaration. The Securities shall have no preemptive or similar rights.


     (b) For
so long as any Capital Securities remain outstanding, if upon an Acceleration
Event of Default, the Debenture Trustee fails or the holders of not less than
25% in principal amount of the outstanding Debentures fail to declare the
principal of all of the Debentures to be immediately due and payable, the
Holders of a Majority in liquidation amount of the Capital Securities then
outstanding shall have the right to make such declaration by a notice in writing
to the Institutional Trustee, the Sponsor and the Debenture Trustee. 

32





     At any
time after a declaration of acceleration with respect to the Debentures has been
made and before a judgment or decree for payment of the money due has been
obtained by the Debenture Trustee as provided in the Indenture, if the
Institutional Trustee, subject to the provisions hereof, fails to annul any such
declaration and waive such default, the Holders of a Majority in liquidation
amount of the Capital Securities, by written notice to the Institutional
Trustee, the Sponsor and the Debenture Trustee, may rescind and annul
such declaration and its consequences if: 

     (i) the Debenture Issuer has paid or deposited with the
Debenture Trustee a sum sufficient to pay

     (A) all overdue installments of
interest on all of the Debentures,

     (B) any accrued Additional Interest
on all of the Debentures,

     (C) the principal of (and premium, if any, on) any Debentures
that have become due otherwise than by such declaration of acceleration and
interest and Additional Interest thereon at the rate borne by the Debentures,
and

     (D) all sums paid or advanced by the Debenture Trustee under
the Indenture and the reasonable compensation, expenses, disbursements and
advances of the Debenture Trustee and the Institutional Trustee, their agents
and counsel; and 

     (ii) all Events of Default with respect to the Debentures,
other than the non-payment of the principal of the Debentures that has become
due solely by such acceleration, have been cured or waived as provided in
Section 5.7 of the Indenture. 

The Holders of at least a Majority
in liquidation amount of the Capital Securities may, on behalf of the Holders of
all the Capital Securities, waive any past default under the Indenture or any
Indenture Event of Default, except a default or Indenture Event of Default in
the payment of principal or interest on the Debentures (unless such default or
Indenture Event of Default has been cured and a sum sufficient to pay all
matured installments of interest and principal due otherwise than by
acceleration has been deposited with the Debenture Trustee) or a default under
the Indenture or an Indenture Event of Default in respect of a covenant or
provision that under the Indenture cannot be modified or amended without the
consent of the holder of each outstanding Debenture. No such rescission shall
affect any subsequent default or impair any right consequent thereon.


     Upon
receipt by the Institutional Trustee of written notice declaring such an
acceleration, or rescission and annulment thereof, by Holders of any part of the
Capital Securities, a record date shall be established for determining Holders
of outstanding Capital Securities entitled to join in such notice, which record
date shall be at the close of business on the day the Institutional Trustee
receives such notice. The Holders on such record date, or their duly designated
proxies, and only such Persons, shall be entitled to join in such notice,
whether or not such Holders remain Holders after such record date;
provided,
that unless such declaration of acceleration, or rescission and annulment, as
the case may be, shall have become effective by virtue of the requisite
percentage having joined in such notice prior to the day that is 90 days after
such record date, such notice of declaration of acceleration, or rescission and
annulment, as the case may be, shall automatically and without further action by
any Holder be canceled and of no further effect. Nothing in this paragraph shall
prevent a Holder, or a proxy of a Holder, from giving, after expiration of such 90-day period, a new written notice of declaration of
acceleration, or rescission and annulment thereof, as the case may be, that is
identical to a written notice that has been canceled pursuant to the proviso to
the preceding sentence, in which event a new record date shall be established
pursuant to the provisions of this Section 6.7. 

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     (c)
Except as otherwise provided in paragraphs (a) and (b) of this Section 6.7, the
Holders of at least a Majority in liquidation amount of the Capital Securities
may, on behalf of the Holders of all the Capital Securities, waive any past
default or Event of Default and its consequences. Upon such waiver, any such
default or Event of Default shall cease to exist, and any default or Event of
Default 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 or impair any right consequent thereon. 

ARTICLE VII 

DISSOLUTION AND TERMINATION OF TRUST


     Section 7.1.
Dissolution and Termination
of Trust. 

     (a) The Trust shall dissolve on the
first to occur of: 

     (i) unless earlier dissolved, on December 15, 2038, the
expiration of the term of the Trust; 

     (ii) upon a Bankruptcy Event with respect to the Sponsor, the
Trust or the Debenture Issuer; 

     (iii) upon the filing of a certificate of dissolution or its
equivalent with respect to the Sponsor (other than in connection with a merger,
consolidation or similar transaction not prohibited by the Indenture, this
Declaration or the Guarantee, as the case may be) or upon the revocation of the
charter of the Sponsor and the expiration of 90 days after the date of
revocation without a reinstatement thereof; 

     (iv) upon the distribution of the Debentures to the Holders of
the Securities, upon exercise of the right of the Holder of all of the
outstanding Common Securities to dissolve the Trust as provided in Annex I
hereto; 

     (v) upon the entry of a decree of judicial dissolution of the
Holder of the Common Securities, the Sponsor, the Trust or the Debenture
Issuer;

     (vi) 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;

     (vii) before the issuance of any Securities, with the consent
of all of the Trustees and the Sponsor; and 

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     (viii) when all of the Securities shall have been surrendered
for conversion, including conversion of any Additional Interest, and the Common
Stock issuable to the Holders upon such conversion shall have been delivered.


     (b) As
soon as is practicable after the occurrence of an event referred to in Section
7.1(a), and after satisfaction of liabilities to creditors of the Trust as
required by applicable law, including of the Statutory Trust Act, and subject to
the terms set forth in Annex I, the Institutional Trustee shall terminate the
Trust by filing a certificate of cancellation with the Secretary of State of the
State of Delaware. 

      (c) The
provisions of Section 2.9 and Article IX shall survive the termination of the
Trust. 

ARTICLE VIII 

TRANSFER OF INTERESTS 

     Section 8.1.
General. 

     (a)
Subject to Section 8.1(c), if Capital Securities are presented to the Registrar
or a co-registrar with a request to register a transfer or to exchange them for
an equal number of Capital Securities represented by different certificates, the
Registrar shall register the transfer or make the exchange if its requirements
for such transactions are met. To permit registrations of transfer and
exchanges, the Trust shall issue and the Institutional Trustee shall
authenticate Capital Securities at the Registrar’s request. 

     (b) Upon
issuance of the Common Securities, the Sponsor shall acquire and retain
beneficial and record ownership of the Common Securities and for so long as the
Securities remain outstanding, and to the fullest extent permitted by applicable
law, the Sponsor shall maintain 100% ownership of the Common Securities;
provided, however, that any permitted successor of the Sponsor, in its capacity
as Debenture Issuer, under the Indenture that is a U.S. Person may succeed to
the Sponsor’s ownership of the Common Securities. 

     (c)
Capital 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. To the fullest extent permitted by applicable law, any transfer
or purported transfer of any Security not made in accordance with this
Declaration shall be null and void and will be deemed to be of no legal effect
whatsoever and any such 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 transferee shall be deemed to
have no interest whatsoever in such Capital Securities. 

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     (d) The
Registrar shall provide for the registration of Securities and of transfers of
Securities, which will be effected without charge but only upon payment (with
such indemnity as the Registrar 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 Registrar shall cause one
or more new Securities of the same tenor 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 Registrar duly executed by the Holder or
such Holder’s attorney duly authorized in writing. Each Security surrendered for
registration of transfer shall be canceled by the Institutional Trustee pursuant
to Section 6.6. 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. 

     (e) The
Trust shall not be required (i) to issue, register the transfer of, or exchange
any Securities during a period beginning at the opening of business fifteen days
before the day of any selection of Securities for redemption and ending at the
close of business on the earliest date on which the relevant notice of
redemption is deemed to have been given to all Holders of the Securities to be
redeemed, or (ii) to register the transfer or exchange of any Security so
selected for redemption in whole or in part, except the unredeemed portion of
any Security being redeemed in part. 

     Section 8.2.
Transfer Procedures and
Restrictions. 

     (a) The
Capital Securities shall bear the Restricted Securities Legend, which shall not
be removed unless there is delivered to the Trust such satisfactory evidence,
which may include an opinion of counsel satisfactory to the Institutional
Trustee, as may be reasonably required by the Trust, that neither the legend nor
the restrictions on transfer set forth therein are required to ensure that
transfers thereof comply with the provisions of the Securities Act. Upon
provision of such satisfactory evidence, the Institutional Trustee, at the
written direction of the Trust, shall authenticate and deliver Capital
Securities that do not bear the legend. 

     (b)
Except as permitted by Section 8.2(a), each Capital Security shall bear a legend
(the “Restricted Securities Legend”) in substantially the following form and a
Capital Security shall not be transferred except in compliance with such legend,
unless otherwise determined by the Sponsor, upon the advice of counsel
experienced in securities law, in accordance with applicable law: 

     THIS
SECURITY HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED
(THE “SECURITIES ACT”), ANY STATE SECURITIES LAWS OR ANY OTHER APPLICABLE
SECURITIES LAW. NEITHER THIS 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, THE REGISTRATION REQUIREMENTS OF THE SECURITIES
ACT AND ANY APPLICABLE STATE SECURITIES LAWS.  

36






THE HOLDER OF THIS SECURITY BY ITS ACCEPTANCE HEREOF
AGREES TO OFFER, SELL OR OTHERWISE TRANSFER THIS SECURITY ONLY (A) TO THE
SPONSOR OR THE TRUST, (B) PURSUANT TO A REGISTRATION STATEMENT THAT HAS BEEN
DECLARED EFFECTIVE UNDER THE SECURITIES ACT, (C) TO A PERSON WHOM THE SELLER
REASONABLY BELIEVES IS A QUALIFIED INSTITUTIONAL BUYER IN A TRANSACTION MEETING
THE REQUIREMENTS OF RULE 144A SO LONG AS THIS SECURITY IS ELIGIBLE FOR RESALE
PURSUANT TO RULE 144A IN ACCORDANCE WITH RULE 144A, (D) TO A NON-U.S. PERSON IN
AN OFFSHORE TRANSACTION IN ACCORDANCE WITH RULE 903 OR RULE 904 (AS APPLICABLE)
OF REGULATION S UNDER THE SECURITIES ACT, (E) TO AN INSTITUTIONAL “ACCREDITED
INVESTOR” WITHIN THE MEANING OF SUBPARAGRAPH (A) 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 OF THE SECURITIES ACT,
SUBJECT TO THE SPONSOR’S AND THE TRUST’S RIGHT PRIOR TO ANY SUCH OFFER, SALE OR
TRANSFER TO REQUIRE THE DELIVERY OF AN OPINION OF COUNSEL, CERTIFICATION AND/OR
OTHER INFORMATION SATISFACTORY TO EACH OF THEM IN ACCORDANCE WITH THE
DECLARATION OF TRUST, A COPY OF WHICH MAY BE OBTAINED FROM THE SPONSOR OR THE
TRUST. HEDGING TRANSACTIONS INVOLVING THIS SECURITY MAY NOT BE CONDUCTED UNLESS
IN COMPLIANCE WITH THE SECURITIES ACT.

     THE
HOLDER OF THIS SECURITY BY ITS ACCEPTANCE HEREOF ALSO AGREES, REPRESENTS AND
WARRANTS THAT IT IS NOT AN EMPLOYEE BENEFIT, INDIVIDUAL RETIREMENT ACCOUNT OR
OTHER PLAN OR ARRANGEMENT SUBJECT TO TITLE I OF THE EMPLOYEE RETIREMENT INCOME
SECURITY ACT OF 1974, AS AMENDED (“ERISA”), OR SECTION 4975 OF THE INTERNAL
REVENUE CODE OF 1986, AS AMENDED (THE “CODE”) (EACH A “PLAN”), OR AN ENTITY
WHOSE UNDERLYING ASSETS INCLUDE “PLAN ASSETS” BY REASON OF ANY PLAN’S INVESTMENT
IN THE ENTITY, AND NO PERSON INVESTING “PLAN ASSETS” OF ANY PLAN MAY ACQUIRE OR
HOLD THE SECURITIES OR ANY INTEREST THEREIN, UNLESS SUCH PURCHASER OR HOLDER IS
ELIGIBLE FOR EXEMPTIVE RELIEF AVAILABLE UNDER U.S. DEPARTMENT OF LABOR
PROHIBITED TRANSACTION CLASS EXEMPTION 96-23, 95-60, 91-38, 90-1 OR 84-14 OR
ANOTHER APPLICABLE EXEMPTION OR ITS PURCHASE AND HOLDING OF THIS SECURITY IS NOT
PROHIBITED BY SECTION 406 OF ERISA OR SECTION 4975 OF THE CODE WITH RESPECT TO
SUCH PURCHASE OR HOLDING. 

37




ANY PURCHASER OR HOLDER OF THE SECURITIES OR ANY INTEREST
THEREIN WILL BE DEEMED TO HAVE REPRESENTED BY ITS PURCHASE AND HOLDING THEREOF
THAT EITHER (i) IT IS NOT AN EMPLOYEE BENEFIT PLAN WITHIN THE MEANING OF SECTION
3(3) OF ERISA, OR A PLAN TO WHICH SECTION 4975 OF THE CODE IS APPLICABLE, A
TRUSTEE OR OTHER PERSON ACTING ON BEHALF OF AN EMPLOYEE BENEFIT PLAN OR PLAN, OR
ANY OTHER PERSON OR ENTITY USING THE ASSETS OF ANY EMPLOYEE BENEFIT PLAN OR PLAN
TO FINANCE SUCH PURCHASE, OR (ii) SUCH PURCHASE WILL NOT RESULT IN A PROHIBITED
TRANSACTION UNDER SECTION 406 OF ERISA OR SECTION 4975 OF THE CODE FOR WHICH
THERE IS NO APPLICABLE STATUTORY OR ADMINISTRATIVE EXEMPTION. 

     THIS
SECURITY WILL BE ISSUED AND MAY BE TRANSFERRED ONLY IN BLOCKS HAVING A
LIQUIDATION AMOUNT OF NOT LESS THAN $1,000.00 AND MULTIPLES OF $1,000.00 IN
EXCESS THEREOF. ANY ATTEMPTED TRANSFER OF SECURITIES IN A BLOCK HAVING A
LIQUIDATION AMOUNT OF LESS THAN $1,000.00 SHALL BE DEEMED TO BE VOID AND OF NO
LEGAL EFFECT WHATSOEVER. 

     THE
HOLDER OF THIS SECURITY AGREES THAT IT WILL COMPLY WITH THE FOREGOING
RESTRICTIONS. 

     (c) To
permit registrations of transfers and exchanges, the Trust shall execute and the
Institutional Trustee shall authenticate Capital Securities at the Registrar’s
request. 

     (d)
Registrations of transfers or exchanges will be effected without charge, but
only upon payment (with such indemnity as the Registrar or the Sponsor may
require) in respect of any tax or other governmental charge that may be imposed
in relation to it. 

     (e) 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. 

     Section 8.3. Deemed Security
Holders. The Trust, the Administrators, the Trustees, the Paying Agent, the
Transfer Agent or the Registrar may treat the Person in whose name any
Certificate shall be registered on the books and records of the Trust as the
sole holder of such Certificate and of the Securities represented by such
Certificate for purposes of receiving Distributions and for all other purposes
whatsoever and, accordingly, shall not be bound to recognize any equitable or
other claim to or interest in such Certificate or in the Securities represented
by such Certificate on the part of any Person, whether or not the Trust, the
Administrators, the Trustees, the Paying Agent, the Transfer Agent or the
Registrar shall have actual or other notice thereof. 

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ARTICLE IX 

LIMITATION OF LIABILITY
OF
HOLDERS OF SECURITIES, INSTITUTIONAL 
TRUSTEE OR OTHERS


     Section 9.1.
Liability. 

     (a)
Except as expressly set forth in this Declaration, the 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 the
Securities any deficit upon dissolution of the Trust or otherwise. 

     (b) The
Holder of the Common Securities 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 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 9.2. 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 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 by or 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. 

     Section 9.3. 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, are
agreed by the parties hereto to replace such other duties and liabilities of the
Indemnified Person. 

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     (b)
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, 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 9.4.
Indemnification. 

     (a) The
Sponsor shall indemnify, to the full extent permitted by law, any 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) arising out of or in connection with the acceptance or
administration of this Declaration by reason of the fact that he is or was an
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 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 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.


     (b) The
Sponsor shall indemnify, to the full extent permitted by law, any 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 arising out of or in connection with the
acceptance or administration of this Declaration by reason of the fact that he
is or was an 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; provided, however, that no such indemnification
shall be made in respect of any claim, issue or matter as to which such
Indemnified Person shall have been adjudged to be liable to the Trust unless and
only to the extent that 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 shall deem proper. 

40





     (c) To
the extent that an 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 (a) and (b) of this Section 9.4, 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 and
expenses) actually and reasonably incurred by him in connection therewith.


     (d) Any
indemnification of an Administrator under paragraphs (a) and (b) of this Section
9.4 (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
Indemnified Person is proper in the circumstances because he has met the
applicable standard of conduct set forth in paragraphs (a) and (b). Such
determination shall be made (i) by the Administrators by a majority vote of a
Quorum consisting of such Administrators who were not parties to such action,
suit or proceeding, (ii) if such a Quorum is not obtainable, or, even if
obtainable, if a Quorum of disinterested Administrators so directs, by
independent legal counsel in a written opinion, or (iii) by the Common Security
Holder of the Trust. 

     (e) To
the fullest extent permitted by law, expenses (including reasonable attorneys’
fees and expenses) incurred by an Indemnified Person in defending a civil,
criminal, administrative or investigative action, suit or proceeding referred to
in paragraphs (a) and (b) of this Section 9.4 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 Indemnified Person to repay such
amount if it shall ultimately be determined that he is not entitled to be
indemnified by the Sponsor as authorized in this Section 9.4. Notwithstanding
the foregoing, no advance shall be made by the Sponsor if a determination is
reasonably and promptly made (i) by the Administrators by a majority vote of a
Quorum of disinterested Administrators, (ii) if such a Quorum is not obtainable,
or, even if obtainable, if a quorum of disinterested Administrators so directs,
by independent legal counsel in a written opinion or (iii) by the Common
Security Holder of the Trust, that, based upon the facts known to the
Administrators, counsel or the Common Security Holder at the time such
determination is made, such Indemnified Person acted in bad faith or in a manner
that such Indemnified Person did not believe to be in the best interests of the
Trust, or, with respect to any criminal proceeding, that such 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 Administrators,
independent legal counsel or the Common Security Holder reasonably determine
that such Indemnified Person deliberately breached his duty to the Trust or its
Common or Capital Security Holders. 

     (f) The
Trustees, at the sole cost and expense of the Sponsor, retain the right to
representation by counsel of their own choosing in any action, suit or any other
proceeding for which they are indemnified under paragraphs (a) and (b) of this
Section 9.4, without affecting their right to
indemnification hereunder or waiving any rights afforded to it under this
Declaration or applicable law. 

41





     (g) The
indemnification and advancement of expenses provided by, or granted pursuant to,
the other paragraphs of this Section 9.4 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 9.4
shall be deemed to be provided by a contract between the Sponsor and each
Indemnified Person who serves in such capacity at any time while this Section
9.4 is in effect. Any repeal or modification of this Section 9.4 shall not
affect any rights or obligations then existing. 

     (h) The
Sponsor or the Trust may purchase and maintain insurance on behalf of any Person
who is or was an 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 9.4. 

     (i) For
purposes of this Section 9.4, 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 9.4 with
respect to the resulting or surviving entity as he would have with respect to
such constituent entity if its separate existence had continued. 

     (j) The
indemnification and advancement of expenses provided by, or granted pursuant to,
this Section 9.4 shall, unless otherwise provided when authorized or ratified,
(i) continue as to a Person who has ceased to be an Indemnified Person and shall
inure to the benefit of the heirs, executors and administrators of such a
Person; and (ii) survive the termination or expiration of this Declaration or
the earlier removal or resignation of an Indemnified Person. 

     Section 9.5. Outside
Businesses. Any Covered Person, the Sponsor, the Delaware Trustee and the
Institutional Trustee 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 of
Securities 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 any Covered Person, the Sponsor, the
Delaware Trustee or the Institutional 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 any Covered Person, the Sponsor, the Delaware Trustee and the Institutional 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. Any Covered Person, the
Delaware Trustee and the Institutional 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. 

42





     Section 9.6.
Compensation; Fee. The Sponsor agrees: 

     (a) to
pay to the Trustees from time to time such compensation for all services
rendered by them hereunder as the parties shall agree from time to time (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, bad faith or willful misconduct.


     For
purposes of clarification, this Section 9.6 does not contemplate the payment by
the Sponsor of acceptance or annual administration fees owing to the Trustees
under this Declaration or the fees and expenses of the Trustees’ counsel in
connection with the closing of the transactions contemplated by this
Declaration. 

     The
provisions of this Section 9.6 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 9.6. 

ARTICLE X 

ACCOUNTING 

     Section 10.1. 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. 

     Section 10.2.
Certain Accounting
Matters. 

     (a) At
all times during the existence of the Trust, the Administrators shall keep, or
cause to be kept at the principal office of the Trust in the United States, as
defined for purposes of Treasury Regulations section 301.7701-7, 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,
at the Sponsor’s expense, in accordance with generally accepted accounting principles, consistently applied. The books of account and the
records of the Trust shall be examined by and reported upon (either separately
or as part of the Sponsor’s regularly prepared consolidated financial report) as
of the end of each Fiscal Year of the Trust by a firm of independent certified
public accountants selected by the Administrators. 

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     (b) The
Administrators shall cause to be duly prepared and delivered to each of the
Holders of Securities Form 1099 or such other annual United States federal
income tax information statement required by the Code, 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 Administrators shall endeavor
to deliver all such statements within 30 days after the end of each Fiscal Year
of the Trust. 

     (c) The
Administrators, at the Sponsor’s expense, shall cause to be duly prepared at the
principal office of the Sponsor in the United States, as ‘United States’ is
defined in Section 7701(a)(9) of the Code (or at the principal office of the
Trust if the Sponsor has no such principal office in the United States), and
filed 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 Administrators on behalf
of the Trust with any state or local taxing authority. 

     Section 10.3. Banking. The Trust shall maintain in the United States, as defined for
purposes of Treasury Regulations section 301.7701-7, 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 Institutional Trustee
shall be made directly to the Property Account and no other funds of the Trust
shall be deposited in the Property Account. The sole signatories for such
accounts (including the Property Account) shall be designated by the
Institutional Trustee. 

     Section 10.4. Withholding. The Institutional Trustee or any Paying Agent and the
Administrators shall comply with all withholding requirements under United
States federal, state and local law. The Institutional Trustee or any Paying
Agent shall request, and each Holder shall provide to the Institutional Trustee
or any Paying Agent, such forms or certificates as are necessary to establish an
exemption from withholding with respect to the Holder, and any representations
and forms as shall reasonably be requested by the Institutional Trustee or any
Paying Agent to assist it in determining the extent of, and in fulfilling, its
withholding obligations. The Administrators 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 Institutional Trustee or any
Paying Agent 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 overwithholding, 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 Institutional
Trustee or any Paying Agent may reduce subsequent Distributions by the amount of
such withholding. 

44





ARTICLE XI 

AMENDMENTS AND MEETINGS


     Section 11.1. 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 (i) by the Institutional Trustee, or (ii) if the amendment
affects the rights, powers, duties, obligations or immunities of the Delaware
Trustee, by the Delaware Trustee. 

     (b)
Notwithstanding any other provision of this Article XI, an amendment may be
made, and any such purported amendment shall be valid and effective only if:


     (i) the Institutional 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 

     (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); and 

     (ii) the result of such amendment
would not be to 

     (A) cause the Trust to cease to be classified for purposes of
United States federal income taxation as a grantor trust; or 

     (B) cause the Trust to be deemed to be an Investment Company
required to be registered under the Investment Company Act. 

     (c)
Except as provided in Section 11.1(d), (e) or (h), no amendment shall be made,
and any such purported amendment shall be void and ineffective, unless the
Holders of a Majority in liquidation amount of the Capital Securities shall have
consented to such amendment. 

     (d) In
addition to and notwithstanding any other provision in this Declaration, without
the consent of each affected Holder, this Declaration may not be amended to (i)
change the amount or timing of any Distribution on the Securities or otherwise
adversely affect the amount of any Distribution required to be made in respect
of the Securities as of a specified date or change any conversion or exchange
provisions or (ii) restrict the right of a Holder to institute suit for the
enforcement of any such payment on or after such date. 

45










     (e)
Sections 9.1(b) and 9.1(c) and this Section 11.1 shall not be amended without
the consent of all of the Holders of the Securities. 

     (f)
Article III shall not be amended without the consent of the Holders of a
Majority in liquidation amount of the Common Securities. 

     (g) The
rights of the Holders of the Capital Securities under Article IV to appoint and
remove Trustees shall not be amended without the consent of the Holders of a
Majority in liquidation amount of the Capital Securities. 

     (h) This
Declaration may be amended by the Institutional Trustee and the Holders of a
Majority in liquidation amount of the Common Securities without the consent of
the Holders of the Capital Securities to: 

     (i) cure any ambiguity; 

     (ii) correct or supplement any provision in this Declaration
that may be defective or inconsistent with any other provision of this
Declaration; 

     (iii) add to the covenants,
restrictions or obligations of the Sponsor; or 

     (iv) modify, eliminate or add to any provision of this
Declaration to such extent as may be necessary to ensure that the Trust will be
classified for United States federal income tax purposes at all times as a
grantor trust and will not be required to register as an Investment Company
(including without limitation to conform to any change in Rule 3a-5, Rule 3a-7
or any other applicable rule under the Investment Company Act or written change
in interpretation or application thereof by any legislative body, court,
government agency or regulatory authority) which amendment does not have a
material adverse effect on the rights, preferences or privileges of the Holders
of Securities; 

     provided, however, that no such modification,
elimination or addition referred to in clauses (i), (ii), (iii) or (iv) shall
adversely affect in any material respect the powers, preferences or special
rights of Holders of Capital Securities. 

     Section 11.2.
Meetings of the Holders of
Securities; Action by Written Consent.


     (a)
Meetings of the Holders of any class of Securities may be called at any time by
the Administrators (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 or the terms of the Securities. The
Administrators shall call a meeting of the Holders of such class if directed to
do so by the Holders of at least 25% in liquidation amount of such class of
Securities. Such direction shall be given by delivering to the Administrators
one or more calls in a writing stating that the signing Holders of the
Securities wish to call a meeting and indicating the general or specific purpose
for which the meeting is to be called. Any Holders of the Securities calling a
meeting shall specify in writing the Certificates held by the Holders of the
Securities exercising the right to call a meeting and only those Securities
represented by such Certificates shall be counted for purposes of determining
whether the required percentage set forth in the second sentence of this
paragraph has been met. 

46





     (b)
Except to the extent otherwise provided in the terms of the Securities, the
following provisions shall apply to meetings of Holders of the Securities:


     (i)
notice of any such meeting shall be given to all the Holders of the Securities
having a right to vote thereat at least 7 days and not more than 60 days before
the date of such meeting. Whenever a vote, consent or approval of the Holders of
the Securities is permitted or required under this Declaration, such vote,
consent or approval may be given at a meeting of the Holders of the Securities.
Any action that may be taken at a meeting of the Holders of the Securities may
be taken without a meeting if a consent in writing setting forth the action so
taken is signed by the Holders of the 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 of the
Securities 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 of the
Securities entitled to vote who have not consented in writing. The
Administrators may specify that any written ballot submitted to the Holders of
the Securities for the purpose of taking any action without a meeting shall be
returned to the Trust within the time specified by the Administrators;


     (ii)
each Holder of a Security may authorize any Person to act for it by proxy on all
matters in which a Holder of Securities 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 the 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 of the Securities were stockholders of a
Delaware corporation; each meeting of the Holders of the Securities shall be
conducted by the Administrators or by such other Person that the Administrators
may designate; and 

     (iii)
unless the Statutory Trust Act, this Declaration, or the terms of the Securities
otherwise provides, the Administrators, in their sole discretion, shall
establish all other provisions relating to meetings of Holders of Securities,
including notice of the time, place or purpose of any meeting at which any
matter is to be voted on by any Holders of the 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; provided, however, that each
meeting shall be conducted in the United States (as that term is defined in
Treasury Regulations section 301.7701-7). 

47





ARTICLE XII 

REPRESENTATIONS OF INSTITUTIONAL
TRUSTEE 
AND THE DELAWARE TRUSTEE 

     Section 12.1.
Representations and
Warranties of Institutional Trustee. The initial Institutional
Trustee represents and warrants to the Trust and to the Sponsor at the date of
this Declaration, and each Successor Institutional Trustee represents and
warrants to the Trust and the Sponsor at the time of the Successor Institutional
Trustee’s acceptance of its appointment as Institutional Trustee, that:


     (a) the
Institutional Trustee is a Delaware banking corporation with trust powers, duly
organized and validly existing 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 Institutional Trustee of this
Declaration has been duly authorized by all necessary corporate action on the
part of the Institutional Trustee. This Declaration has been duly executed and
delivered by the Institutional Trustee, and it constitutes a legal, valid and
binding obligation of the Institutional 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 (regardless of whether considered
in a proceeding in equity or at law); 

     (c) the
execution, delivery and performance of this Declaration by the Institutional
Trustee does not conflict with or constitute a breach of the charter or by-laws
of the Institutional Trustee; and 

     (d) no
consent, approval or authorization of, or registration with or notice to, any
state or federal banking authority is required for the execution, delivery or
performance by the Institutional Trustee of this Declaration. 

     Section 12.2. Representations of
the 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) if it
is not a natural person, the Delaware Trustee is duly organized, validly
existing and in good standing under the laws of the State of Delaware;


     (b) if it
is not a natural person, 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 under Delaware law
(excluding any securities laws) 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 considered in a proceeding in
equity or at law); 

48





     (c) if it
is not a natural person, the execution, delivery and performance of this
Declaration by the Delaware Trustee does not conflict with or constitute a
breach of the charter or by-laws of the Delaware Trustee; 

     (d) it
has trust power and authority to execute and deliver, and to carry out and
perform its obligations under the terms of, this Declaration; 

     (e) no
consent, approval or authorization of, or registration with or notice to, any
state or federal banking authority governing the trust powers of the Delaware
Trustee is required for the execution, delivery or performance by the Delaware
Trustee of this Declaration; and 

     (f) the
Delaware Trustee is a natural person who is a resident of the State of Delaware
or, if not a natural person, it is an entity which has its principal place of
business in the State of Delaware and, in either case, a Person that satisfies
for the Trust the requirements of Section 3807 of the Statutory Trust Act.


ARTICLE XIII 

MISCELLANEOUS 

     Section 13.1. 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 (which telecopy shall be followed by notice delivered or mailed by
first class mail) or mailed by first class mail, as follows: 

     (a) if
given to the Trust, in care of the Administrators at the Trust’s mailing address
set forth below (or such other address as the Trust may give notice of to the
Holders of the Securities): 


	          	
      EFSC Capital Trust VIII
c/o
      Enterprise Financial Services Corp
1281 N. Warson Road
St. Louis,
      Missouri 63132
Attention: Deborah N. Barstow
Telecopy: 314-812-1506
      



     (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 of the Securities): 


	          	
      Wilmington Trust Company
Rodney Square North 
1100 North Market
      Street
Wilmington, Delaware
      19890-1600
Attention: Corporate Trust Administration 
Telecopy:
      302-636-4140



49





     (c) if
given to the Institutional Trustee, at the Institutional Trustee’s mailing
address set forth below (or such other address as the Institutional Trustee may
give notice of to the Holders of the Securities): 


	          	
      Wilmington Trust
      Company
Rodney Square North
1100 North Market Street
Wilmington,
      Delaware 19890-1600
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 of to the Trust): 


	          	
      Enterprise Financial Services
      Corp 
1281 N. Warson Road 
St. Louis, Missouri 63132 
Attention:
      Deborah N. Barstow 
Telecopy: 314-812-1506




     (e) if given to the Conversion
Agent, at the Conversion Agent’s address set forth below (or such other address
as the Holder of the Common Securities may give notice of to the Trust):



	          	
      Wilmington Trust
      Company
Rodney Square North
1100 North Market Street 
Wilmington,
      Delaware 19890-1600
Attention: Corporate Trust Administration
      
Telecopy: 302-636-4140 



     (f) 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. 

50





     Section 13.2. Governing
Law. This Declaration and the rights of the parties hereunder shall be
governed by and interpreted in accordance with the law of the State of Delaware
and all rights and remedies shall be governed by such laws without regard to the
principles of conflict of laws of the State of Delaware or any other
jurisdiction that would call for the application of the law of any jurisdiction
other than the State of Delaware; provided, however, that there shall not be
applicable to the Trust, the Trustees or this Declaration any provision of the
laws (statutory or common) of the State of Delaware pertaining to trusts that
relate to or regulate, in a manner inconsistent with the terms hereof (a) the
filing with any court or governmental body or agency of trustee accounts or
schedules of trustee fees and charges, (b) affirmative requirements to post
bonds for trustees, officers, agents or employees of a trust, (c) the necessity
for obtaining court or other governmental approval concerning the acquisition,
holding or disposition of real or personal property, (d) fees or other sums
payable to trustees, officers, agents or employees of a trust, (e) the
allocation of receipts and expenditures to income or principal, or (f)
restrictions or limitations on the permissible nature, amount or concentration
of trust investments or requirements relating to the titling, storage or other
manner of holding or investing trust assets. 

     Section 13.3. 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 13.4. 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 13.5. 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 or not so expressed. 

     Section 13.6. 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 13.7. 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 and Administrators to any 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. 

Signatures appear on the following
page 

51





     IN
WITNESS WHEREOF, the undersigned have caused these presents to be executed as of
the day and year first above written. 


	WILMINGTON TRUST COMPANY,  
	as Delaware
      Trustee  
	  
	By:  	 
	          Name:  
	          Title:  
	  
	WILMINGTON TRUST COMPANY,  
	as Institutional
      Trustee  
	  
	By:  	 
	          Name:  
	          Title:  
	  
	ENTERPRISE FINANCIAL SERVICES CORP,  
	as
      Sponsor  
	  
	By:  	 
	          Name:  
	          Title:  
	  
	ADMINISTRATORS OF  
	EFSC CAPITAL TRUST VIII  
	  
	By:  	 
	          Name: Frank H. Sanfilippo  
	  
	By:  	 
	          Name: Deborah N. Barstow  
	  
	By:  	 
	          Name: Betty L. Lewis 





52





ANNEX I 

TERMS OF SECURITIES 

     Pursuant
to Section 6.1 of the Amended and Restated Declaration of Trust No. 2, dated as
of December 12, 2008 (as amended from time to time, the “Declaration”), the
designation, rights, privileges, restrictions, preferences and other terms and
provisions of the Capital Securities and the Common Securities are set out below
(each capitalized term used but not defined herein has the meaning set forth in
the Declaration): 

     1. Designation and Number. 

          (a) 25,000 Convertible Capital Securities of EFSC Capital
Trust VIII (the “Trust”), with an aggregate stated liquidation amount with
respect to the assets of the Trust of twenty five million dollars
($25,000,000.00) and a stated liquidation amount with respect to the assets of
the Trust of $1,000.00 per Capital Security, are hereby designated for the
purposes of identification only as the “Capital Securities”. The Capital
Security 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. 

          (b) Common Securities of the Trust (the “Common Securities”) in an
amount equal to 3% of the capital of the Trust, will be evidenced by Common
Security Certificates 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 will be payable on each Security on each
Distribution Payment Date at a rate per annum of 9.00%, applied to the stated
liquidation amount thereof from the date of original issuance, such rate being
the rate of interest payable on the Debentures to be held by the Institutional
Trustee. Distributions in arrears will bear interest thereon compounded
quarterly at the applicable Distribution Rate (to the extent permitted by law).
Distributions, as used herein, include cash distributions and any such
compounded distributions unless otherwise noted. A Distribution is payable only
to the extent that payments are made in respect of the Debentures held by the
Institutional Trustee and to the extent the Institutional Trustee has funds
available therefor. The amount of the Distribution payable for any Distribution
Period will be calculated by applying the Distribution Rate to the stated
liquidation amount outstanding at the commencement of the Distribution Period
and shall be computed on the basis of a 360-day year consisting of twelve 30-day
months. All dollar amounts used in or resulting from such calculation will be
rounded to the nearest cent (with one-half cent being rounded upward)).


I-1





          (b) Distributions on the Securities will be cumulative, will
accrue from the date of original issuance, and will be payable, subject to
extension of distribution payment periods as described herein, quarterly in
arrears on March 15, June 15, September 15 and December 15 of each year, or if
such day is not a Business Day, then the next succeeding Business Day (each a
“Distribution Payment Date”) (it being understood
that interest accrues for any such non-Business Day but such interest will be
paid on the next Distribution Payment Date), commencing on the Distribution
Payment Date in March 2009 when, as and if available for payment. The Debenture
Issuer has the right under the Indenture to defer payments of interest on the
Debentures, so long as no Acceleration Event of Default has occurred and is
continuing, by extending the payment period on the Debentures for up to 20
consecutive quarterly periods (each an “Extension
Period”) at any time and from time to time, subject to the conditions
described below, during which Extension Period no interest shall be due and
payable. During any Extension Period, interest will continue to accrue on the
Debentures, and interest on such accrued interest will accrue at an annual rate
equal to the Distribution Rate in effect for each such Extension Period,
compounded quarterly from the date such interest would have been payable were it
not for the Extension Period, to the extent permitted by law (such interest
referred to herein as “Additional Interest”). No
Extension Period may end on a date other than a Distribution Payment Date. At
the end of any such Extension Period, the Debenture Issuer shall pay all
interest then accrued and unpaid on the Debentures (together with Additional
Interest thereon); provided, however, that no Extension Period may extend beyond the
Maturity Date and provided further, however, that
during any such Extension Period, the Debenture Issuer and its Affiliates shall
not (i) declare or pay any dividends or distributions on, or redeem, purchase,
acquire, or make a liquidation payment with respect to, any of the Debenture
Issuer’s or its Affiliates’ capital stock (other than payments of dividends or
distributions to the Debenture Issuer or payments of dividends from direct or
indirect subsidiaries of the Debenture Issuer to their parent corporations,
which also shall be direct or indirect subsidiaries of the Debenture Issuer;
provided that such payments shall be immediately paid to the Company by the
Subsidiary) or make any guarantee payments with respect to the foregoing, or
(ii) make any payment of principal of or interest or premium, if any, on or
repay, repurchase or redeem any Additional Junior Indebtedness of the Debenture
Issuer or any Affiliate that rank pari passu in
all respects with or junior in interest to the Debentures (other than, with
respect to clauses (i) and (ii) above, (a) repurchases, redemptions or other
acquisitions of shares of capital stock of the Debenture Issuer in connection
with any employment contract, benefit plan or other similar arrangement with or
for the benefit of one or more employees, officers, directors or consultants, in
connection with a dividend reinvestment or stockholder stock purchase plan or in
connection with the issuance of capital stock of the Debenture Issuer (or
securities convertible into or exercisable for such capital stock) as
consideration in an acquisition transaction entered into prior to the applicable
Extension Period, if any (b) as a result of any exchange or conversion of any
class or series of the Debenture Issuer’s capital stock (or any capital stock of
a subsidiary of the Debenture Issuer) for any class or series of the Debenture
Issuer’s capital stock or of any class or series of the Debenture Issuer’s
indebtedness for any class or series of the Debenture Issuer’s capital stock,
(c) the purchase of fractional interests in shares of the Debenture Issuer’s
capital stock pursuant to the conversion or exchange provisions of such capital
stock or the security being converted or exchanged, (d) any declaration of a
dividend in connection with any stockholders’ rights plan, or the issuance of
rights, stock or other property under any stockholders’ rights plan, or the
redemption or repurchase of rights pursuant thereto, (e) any dividend in the
form of stock, warrants, options or other rights where the dividend stock or the
stock issuable upon exercise of such warrants, options or other rights is the
same stock as that on which the dividend is being paid or ranks pari passu with or junior
to such stock and any cash payments in lieu of fractional shares issued in
connection therewith, (f) payments under the Capital Securities Guarantee or (g)
payments of Additional Interest in connection with the conversion of Trust
Securities pursuant to Section 7(b)(III) below).

I-2




Prior to the termination of any
Extension Period, the Debenture Issuer may further extend such period, provided
that such period together with all such previous and further consecutive
extensions thereof shall not exceed 20 consecutive quarterly periods, or extend
beyond the Maturity Date. Upon the termination of any Extension Period and upon
the payment of all accrued and unpaid interest and Additional Interest, the
Debenture Issuer may commence a new Extension Period, subject to the foregoing
requirements. No interest or Additional Interest shall be due and payable during
an Extension Period, except at the end thereof, but each installment of interest
that would otherwise have been due and payable during such Extension Period
shall bear Additional Interest. During any Extension Period, Distributions on
the Securities shall be deferred for a period equal to the Extension Period. If
Distributions are deferred, the Distributions due shall be paid on the date that
the related Extension Period terminates to Holders of the Securities as they
appear on the books and records of the Trust on the record date immediately
preceding such date. Distributions on the Securities must be paid on the dates
payable (after giving effect to any Extension Period) to the extent that the
Trust has funds available for the payment of such distributions in the Property
Account of the Trust. The Trust’s funds available for Distribution to the
Holders of the Securities will be limited to payments received from the
Debenture Issuer. The payment of Distributions out of moneys held by the Trust
is guaranteed by the Guarantor pursuant to the Guarantee. 

          (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
relevant record dates. The relevant record dates shall be one Business Day
before the relevant Distribution Payment Date. Distributions payable on any
Securities that are not punctually paid on any Distribution Payment Date, as a
result of the Debenture Issuer having failed to make a payment under the
Debentures, as the case may be, when due (taking into account any Extension
Period), will cease to be payable to the Person in whose name such Securities
are registered on the relevant record date, and such defaulted Distribution 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. 

          (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 herein) among the Holders of the
Securities. 

     3.
Liquidation Distribution Upon
Dissolution. In the event of the voluntary or
involuntary liquidation, dissolution, winding-up or termination of the Trust
(each a “Liquidation”) other than in connection with a redemption of the
Debentures, the Holders of the Securities will be entitled to receive out of the
assets of the Trust available for distribution to Holders of the Securities,
after satisfaction of liabilities to creditors of the Trust (to the extent not
satisfied by the Debenture Issuer), distributions equal to the aggregate of the
stated liquidation amount of $1,000.00 per Security plus accrued and unpaid
Distributions thereon to the date of payment (such amount being the
“Liquidation Distribution”), unless in connection with such Liquidation, the Debentures
in an aggregate stated principal amount equal to the aggregate stated
liquidation amount of such Securities, with an interest rate equal to the
Distribution Rate of, and bearing accrued and unpaid interest in an amount equal
to the accrued and unpaid Distributions on, and having the same record date as,
such Securities, after paying or making reasonable provision to pay all claims
and obligations of the Trust in accordance with the Statutory Trust Act, shall
be distributed on a Pro Rata basis to the Holders of the Securities in exchange
for such Securities.

I-3





     The
Sponsor, as the Holder of all of the Common Securities, has the right at any
time to dissolve the Trust (including, without limitation, upon the occurrence
of a Special Event), subject to the receipt by the Debenture Issuer of prior
approval from the Board of Governors of the Federal Reserve System, or its
designated district bank, as applicable, and any successor federal agency that
is primarily responsible for regulating the activities of the Sponsor (the
“Federal
Reserve”)
if then required under applicable capital guidelines or policies of the Federal
Reserve, and, after satisfaction of liabilities to creditors of the Trust, cause
the Debentures to be distributed to the Holders of the Securities on a Pro Rata
basis in accordance with the aggregate stated liquidation amount thereof.


     If a
Liquidation of the Trust occurs as described in clause (i), (ii), (iii) or (v)
in Section 7.1(a) of the Declaration, the Trust shall be liquidated by the
Institutional Trustee as expeditiously as it determines to be possible by
distributing, after satisfaction of liabilities to creditors of the Trust, to
the Holders of the Securities, the Debentures on a Pro Rata basis to the extent
not satisfied by the Debenture Issuer, unless such distribution is determined by
the Institutional Trustee not to be practical, in which event such Holders will
be entitled to receive out of the assets of the Trust available for distribution
to the Holders, after satisfaction of liabilities of creditors of the Trust to
the extent not satisfied by the Debenture Issuer, an amount equal to the
Liquidation Distribution. An early Liquidation of the Trust pursuant to clause
(iv) of Section 7.1(a) of the Declaration shall occur if the Institutional
Trustee determines that such Liquidation is possible by distributing, after
satisfaction of liabilities to creditors of the Trust, to the Holders of the
Securities on a Pro Rata basis, the Debentures, and such distribution occurs.


     If, upon
any such Liquidation the Liquidation Distribution can be paid only in part
because the Trust has insufficient assets available to pay in full the aggregate
Liquidation Distribution, then the amounts payable directly by the Trust on such
Capital Securities shall be paid to the Holders of the Trust Securities on a Pro
Rata basis, except that if an Event of Default has occurred and is continuing,
the Capital Securities shall have a preference over the Common Securities with
regard to such distributions. 

     After the
date for any distribution of the Debentures upon dissolution of the Trust (i)
the Securities of the Trust will be deemed to be no longer outstanding, (ii)
upon surrender of a Holder’s Securities certificate, such Holder of the
Securities will receive a certificate representing the Debentures to be
delivered upon such distribution, (iii) any certificates representing the
Securities still outstanding will be deemed to represent undivided beneficial
interests in such of the Debentures as have an aggregate principal amount equal
to the aggregate stated liquidation amount with an interest rate identical to
the Distribution Rate of, and bearing accrued and unpaid interest equal to
accrued and unpaid distributions on, the Securities until such certificates are
presented to the Debenture Issuer or its agent for transfer or reissuance (and
until such certificates are so surrendered, no payments of interest or principal
shall be made to Holders of Securities in respect of any payments due and
payable under the Debentures; provided, however that such failure to pay shall
not be deemed to be an Event of Default and shall not entitle the Holder to the
benefits of the Guarantee), and (iv) all rights of Holders of Securities under
the Declaration shall cease, except the right of such Holders to receive
Debentures upon surrender of certificates representing such
Securities.

I-4





          4. Redemption and Distribution.


          (a) The Debentures will mature on December 15, 2038. The
Debentures may be redeemed by the Debenture Issuer, in whole or in part, at any
Distribution Payment Date on or after the Distribution Payment Date in December
2013, at the Redemption Price. In addition, the Debentures may be redeemed by
the Debenture Issuer at the Redemption Price, in whole but not in part, at any
Distribution Payment Date, upon the occurrence and continuation of a Special
Event within 90 days following the occurrence of such Special Event at the
Redemption Price, upon not less than 15 nor more than 60 days’ notice to holders
of such Debentures so long as such Special Event is continuing. In each case,
the right of the Debenture Issuer to redeem the Debentures is subject to the
Debenture Issuer having received prior approval from the Federal Reserve if then
required under applicable capital guidelines or policies of the Federal Reserve.


     “Capital Treatment
Event” means the receipt by the Debenture
Issuer and the Trust of an opinion of counsel experienced in such matters to the
effect that, as a result of the occurrence of any amendment to, or change
(including any announced prospective change) in, the laws, rules or regulations
of the United States or any political subdivision thereof or therein, or as the
result of any official or administrative pronouncement or action or decision
interpreting or applying such laws, rules or regulations, which amendment or
change is effective or which pronouncement, action or decision is announced on
or after the date of original issuance of the Debentures, that the Sponsor is
not, or within 90 days of the date of such opinion will not, be entitled to
treat an amount equal to the aggregate liquidation amount of the Capital
Securities as “Tier 1 Capital” (or its then equivalent) for purposes of the
capital adequacy guidelines of the Federal Reserve, as then in effect and
applicable to the Sponsor (or if the Sponsor is not a bank holding company or
otherwise is not subject to the Federal Reserve’s risk-based capital adequacy
guidelines, such guidelines applied to the Sponsor as if the Sponsor were
subject to such guidelines); provided, however, that the inability of the
Sponsor to treat all or any portion of the liquidation amount of the Capital
Securities as Tier l Capital shall not constitute the basis for a Capital
Treatment Event, if such inability results from the Sponsor having cumulative
preferred stock, minority interests in consolidated subsidiaries, or any other
class of security or interest which the Federal Reserve, may now or hereafter
accord Tier 1 Capital treatment in excess of the amount which may now or
hereafter qualify for treatment as Tier 1 Capital under applicable capital
adequacy guidelines; provided further, however, that the distribution of Debentures in connection with the
Liquidation of the Trust shall not in and of itself constitute a Capital
Treatment Event unless such Liquidation shall have occurred in connection with a
Tax Event or an Investment Company Event. 

I-5





     “Investment Company
Event” means the receipt by the Debenture
Issuer and the Trust of an opinion of counsel experienced in such matters to the
effect that, as a result of the occurrence of a change in law or regulation or
written change (including any announced prospective change) in interpretation or
application of law or regulation by any legislative body, court, governmental
agency or regulatory authority, there is more than an insubstantial risk that
the Trust is or, within 90 days of the date of such opinion, will be considered
an Investment Company that is required to be registered under the Investment
Company Act which change or prospective change becomes effective or would become
effective, as the case may be, on or after the date of the issuance of the
Debentures. 

     “Maturity Date” means December 15,
2038. 

     “Redemption Date” shall mean the date
fixed for the redemption of Capital Securities, which shall be any Distribution
Payment Date on or after the Distribution Payment Date in December 2013.


     “Redemption Price” means 100% of the principal amount of the Debentures being
redeemed, plus accrued and unpaid Interest on such Debentures to the Redemption
Date. 

     “Special Event” means a Tax Event, an Investment Company Event or a Capital
Treatment Event. 

     “Special Redemption
Date” means a date on which a Special Event
redemption occurs, which shall be a Distribution Payment Date. 

     “Tax Event” means the receipt by the Debenture Issuer and the Trust of an opinion
of counsel experienced in such matters to the effect that, as a result of any
amendment to or change (including any announced prospective change) in the laws
or any regulations thereunder of the United States or any political subdivision
or taxing authority thereof or therein, or as a result of any official
administrative pronouncement (including any private letter ruling, technical
advice memorandum, field service advice, regulatory procedure, notice or
announcement including any notice or announcement of intent to adopt such
procedures or regulations) (an “Administrative Action”) or judicial
decision interpreting or applying such laws or regulations, regardless of
whether such Administrative Action or judicial decision is issued to or in
connection with a proceeding involving the Debenture Issuer or the Trust and
whether or not subject to review or appeal, which amendment, clarification,
change, Administrative Action or decision is enacted, promulgated or announced,
in each case on or after the date of original issuance of the Debentures, 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.


I-6





          (b) Upon the repayment in full at maturity or redemption in
whole or in part of the Debentures (other than following the distribution of the
Debentures to the Holders of the Securities), the proceeds from such repayment
or payment shall concurrently be applied to redeem Pro Rata at the Redemption
Price, Securities having an aggregate liquidation amount equal to the aggregate
principal amount of the Debentures so repaid or redeemed; provided, however, that holders of
such Securities shall be given not less than 30 nor more than 60 days’ notice of
such redemption (other than at the scheduled maturity of the Debentures).


          (c) If fewer than all the outstanding Securities are to be so
redeemed, the Common Securities and the Capital Securities will be redeemed Pro
Rata and the Capital Securities to be redeemed will be redeemed Pro Rata from
each Holder of Capital Securities. 

          (d) The Trust may not redeem fewer than all the outstanding
Capital Securities unless all accrued and unpaid Distributions have been paid on
all Capital Securities for all quarterly Distribution periods terminating on or
before the date of redemption, provided that if the Sponsor redeems any part of
the Debentures the Trust must simultaneously redeem an equal part of the Capital
Securities. 

          (e)
Redemption or Distribution
Procedures. 

          (i) Notice of any redemption of, or notice of distribution of
the 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 paragraph 4(e)(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 of such Securities. Each Redemption/Distribution
Notice shall be addressed to the Holders of such Securities at the address of
each such Holder appearing on the books and records of the Trust. No defect in
the Redemption/Distribution Notice or in the mailing thereof with respect to any
Holder shall affect the validity of the redemption or exchange proceedings with
respect to any other Holder. 

          (ii) If the Securities are to be redeemed and the Trust gives
a Redemption/ Distribution Notice, which notice may only be issued if the
Debentures are redeemed as set out in this paragraph 4, then, provided that the
Institutional Trustee has a sufficient amount of cash in connection with the
related redemption or maturity of the Debentures, the Institutional Trustee will
pay the relevant Redemption Price, to the Holders of such Securities by check
mailed to the address of each such 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 then immediately prior to the close
of business on the date of such deposit Distributions will cease to accrue on
the Securities so called for redemption and all rights of Holders of such
Securities so called for redemption will cease, except the right of the Holders
of such Securities to receive the Redemption Price specified in paragraph 4(a),
but without interest on such Redemption Price.

I-7





If payment
of the Redemption Price in respect of any Securities is improperly withheld or
refused and not paid either by the Trust or by the Debenture Issuer as guarantor
pursuant to the Guarantee, Distributions on such Securities will continue to
accrue at the Distribution Rate 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. In
the event of any redemption of the Capital Securities issued by the Trust in
part, the Trust shall not be required to (i) issue, register the transfer of or
exchange any Security during a period beginning at the opening of business ten
days before any selection for redemption of the Capital Securities and ending at
the close of business on the earliest date on which the relevant notice of
redemption is deemed to have been given to all Holders of the Capital Securities
to be so redeemed or (ii) register the transfer of or exchange any Capital
Securities so selected for redemption, in whole or in part, except for the
unredeemed portion of any Capital Securities being redeemed in part. 

          (iii) Redemption/Distribution Notices shall be sent by the
Administrators on behalf of the Trust to (A) in respect of the Capital
Securities, the Holders thereof and (B) in respect of the Common Securities, the
Holder thereof. 

          (iv) Subject to the foregoing and applicable law (including,
without limitation, United States federal securities laws), and provided that
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 paragraphs 5(b) and 8 and as
otherwise required by law and the Declaration, the Holders of the Capital
Securities will have no voting rights. The Administrators are required to call a
meeting of the Holders of the Capital Securities if directed to do so by Holders
of at least 25% in liquidation amount of the Capital Securities. 

          (b) Subject to the requirements of obtaining a tax opinion by
the Institutional Trustee in certain circumstances set forth in the last
sentence of this paragraph, the Holders of a Majority in liquidation amount of
the Capital Securities, voting separately as a class, have the right to direct
the time, method, and place of conducting any proceeding for any remedy
available to the Institutional Trustee, or exercising any trust or power
conferred upon the Institutional Trustee under the Declaration, including the
right to direct the Institutional Trustee, as holder of the Debentures, to (i)
exercise the remedies available under the Indenture as the holder of the
Debentures, (ii) waive any past default that is waivable under the Indenture,
(iii) exercise any right to rescind or annul a declaration that the principal of
all the Debentures shall be due and payable or (iv) consent on behalf of all the
Holders of the Capital Securities to any amendment, modification or termination
of the Indenture or the Debentures where such consent shall be required;
provided,
however,
that, where a consent or action under the Indenture would require the consent or
act of the holders of greater than a simple majority in aggregate principal
amount of Debentures (a “Super
Majority”) affected thereby, the
Institutional Trustee may only give such consent or take such action at the
written direction of the Holders of at least the proportion in liquidation
amount of the Capital Securities outstanding which the relevant Super Majority
represents of the aggregate principal amount of the Debentures
outstanding.

I-8





If the Institutional Trustee fails to
enforce its rights under the Debentures after the Holders of a Majority in
liquidation amount of such Capital Securities have so directed the Institutional
Trustee, to the fullest extent permitted by law, a Holder of the Capital
Securities may institute a legal proceeding directly against the Debenture
Issuer to enforce the Institutional Trustee’s rights under the Debentures
without first instituting any legal proceeding against the Institutional Trustee
or any other person or entity. Notwithstanding the foregoing, if an Event of
Default has occurred and is continuing and such event is attributable to the
failure of the Debenture Issuer to pay interest or principal on the Debentures
on the date the interest or principal is payable (or in the case of redemption,
the Redemption Date, then a Holder of record of the Capital Securities may
directly institute a proceeding for enforcement of payment, on or after the
respective due dates specified in the Debentures, to such Holder directly of the
principal of or interest on the Debentures having an aggregate principal amount
equal to the aggregate liquidation amount of the Capital Securities of such
Holder. The Institutional Trustee shall notify all Holders of the Capital
Securities of any default actually known to the Institutional Trustee with
respect to the Debentures unless (x) such default has been cured prior to the
giving of such notice or (y) the Institutional Trustee determines in good faith
that the withholding of such notice is in the interest of the Holders of such
Capital Securities, except where the default relates to the payment of principal
of or interest on any of the Debentures. Such notice shall state that such
Indenture Event of Default also constitutes an Event of Default hereunder.
Except with respect to directing the time, method and place of conducting a
proceeding for a remedy, the Institutional Trustee shall not take any of the
actions described in clauses (i), (ii) or (iii) above unless the Institutional
Trustee has obtained an opinion of tax counsel to the effect that, as a result
of such action, the Trust will not be classified as other than a grantor trust
for United States federal income tax purposes. 

     In the
event the consent of the Institutional Trustee, as the holder of the Debentures,
is required under the Indenture with respect to any amendment, modification or
termination of the Indenture, the Institutional Trustee shall request the
direction of the Holders of the Securities with respect to such amendment,
modification or termination and shall vote with respect to such amendment,
modification or termination as directed by a Majority in liquidation amount of
the Securities voting together as a single class; provided, however, that where
a consent under the Indenture would require the consent of a Super-Majority, the
Institutional Trustee may only give such consent at the direction of the Holders
of at least the proportion in liquidation amount of the Securities outstanding
which the relevant Super-Majority represents of the aggregate principal amount
of the Debentures outstanding. The Institutional Trustee shall not take any such
action in accordance with the directions of the Holders of the Securities unless
the Institutional Trustee has obtained an opinion of tax counsel to the effect
that, as a result of such action, the Trust will not be classified as other than
a grantor trust for United States federal income tax purposes. 

I-9





     A waiver
of an Indenture Event of Default will constitute a waiver of the corresponding
Event of Default hereunder. Any required approval or direction of Holders of the
Capital Securities may be given at a separate meeting of Holders of the Capital
Securities convened for such purpose, at a meeting of all of the Holders
of the Securities in the Trust or pursuant to written consent. The Institutional
Trustee will cause a notice of any meeting at which Holders of the 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
the Capital Securities. Each such notice will include a statement setting forth
the following information (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 the 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 entitle the Holder thereof to vote or consent and shall, for purposes
of such vote or consent, be treated as if such Capital Securities were not
outstanding. 

     In no
event will Holders of the Capital Securities have the right to vote to appoint,
remove or replace the Administrators, which voting rights are vested exclusively
in the Sponsor as the Holder of all of the Common Securities of the Trust. Under
certain circumstances as more fully described in the Declaration, Holders of
Capital Securities have the right to vote to appoint, remove or replace the
Institutional Trustee and the Delaware Trustee. 

     6. Voting Rights - Common Securities.


          (a) Except as provided under paragraphs 6(b), 6(c) and 8 and
as otherwise required by law and the Declaration, the Common Securities will
have no voting rights. 

          (b) The Holders of the Common Securities are entitled, in
accordance with Article IV of the Declaration, to vote to appoint, remove or
replace any Administrators. 

          (c) Subject to Section 6.7 of the Declaration and only after
each Event of Default (if any) with respect to the Capital Securities has been
cured, waived, or otherwise eliminated and subject to the requirements of the
second to last sentence of this paragraph, the Holders of a Majority in
liquidation amount of the Common Securities, voting separately as a class, may
direct the time, method, and place of conducting any proceeding for any remedy
available to the Institutional Trustee, or exercising any trust or power
conferred upon the Institutional Trustee under the Declaration, including (i)
directing the time, method, place of conducting any proceeding for any remedy
available to the Debenture Trustee, or exercising any trust or power conferred
on the Debenture Trustee with respect to the Debentures, (ii) waiving any past
default and its consequences that is waivable under the Indenture, or (iii)
exercising any right to rescind or annul a declaration that the principal of all
the Debentures shall be due and payable; provided, however, that, where a consent or
action under the Indenture would require a Super Majority, the Institutional
Trustee may only give such consent or take such action at the written direction
of the Holders of at least the proportion in liquidation amount of the Common
Securities which the relevant Super Majority represents of the aggregate
principal amount of the Debentures outstanding.

I-10





Notwithstanding this paragraph 6(c),
the Institutional Trustee shall not revoke any action previously authorized or
approved by a vote or consent of the Holders of the Capital Securities. Other
than with respect to directing the time, method and place of conducting any
proceeding for any remedy available to the Institutional Trustee or the
Debenture Trustee as set forth above, the Institutional Trustee shall not take
any action described in (i), (ii) or (iii) above, unless the Institutional
Trustee has obtained an opinion of tax counsel to the effect that for the
purposes of United States federal income tax the Trust will not be classified as
other than a grantor trust on account of such action. If the Institutional
Trustee fails to enforce its rights, to the fullest extent permitted by law,
under the Declaration, any Holder of the Common Securities may institute a legal
proceeding directly against any Person to enforce the Institutional Trustee’s
rights under the Declaration, without first instituting a legal proceeding
against the Institutional Trustee or any other Person. 

     Any
approval or direction of Holders of the Common Securities may be given at a
separate meeting of Holders of the Common Securities convened for such purpose,
at a meeting of all of the Holders of the Securities in the Trust or pursuant to
written consent. The Administrators will cause a notice of any meeting at which
Holders of the 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 the 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. Conversion Rights.

     Except as otherwise provided in
Section 7(d) below, holders of Securities shall have the right at any time, to
cause the Conversion Agent to convert Securities in accordance with the terms of
the Declaration and the Indenture, on behalf of the converting Holders, into
Debentures, which Debentures will be converted into shares of Common Stock in
the manner described herein and in the Indenture on and subject to the following
terms and conditions: 

          (a)
The Securities are convertible into Debentures which will be convertible into
fully paid and nonassessable shares of Common Stock pursuant to the Holder’s
direction to the Conversion Agent to convert such Securities for a portion of
the Debentures theretofore held by the Trust on the basis of one Security per
$1,000 principal amount of Debentures, and immediately convert such amount of
Debentures into fully paid and nonassessable shares of Common Stock, equal to
the aggregate face amount of Securities being exchanged divided by $17.37,
subject to adjustment as described in Section 2.13(d) of the Indenture (the
“Conversion Price”). Nothing contained herein shall prohibit a Holder from
converting Securities into Common Stock during a Extension Period. 

I-11





          (b) To
convert all or any portion of the Securities into Debentures and to subsequently
convert the Debentures into Common Stock, the Holder shall submit to the
Conversion Agent and to the Sponsor at the office designated therefor an request
to convert Securities on behalf of such Holder which shall be irrevocable except
as provided in this Section 7(b) (the “Conversion Request”), together, if the
Securities are in certificated form, with the certificates representing such
Securities, duly endorsed or assigned to the Company or in blank. The Conversion
Request (i) shall set forth the principal amount of the Securities to be
converted, and the name or names, if other than the Holder, in which the shares
of Common Stock should be issued, (ii) shall set forth the date of the requested
conversion (the “Conversion Date”) which shall be a date not prior to the date
of the Conversion Request nor more than sixty (60) days after the date such
Conversion Request is delivered to the Conversion Agent; provided, however that
if the Conversion Request is delivered to the Conversion Agent later than 5:00
p.m. (Eastern time), the Conversion Date shall be not prior to the next
succeeding trading day, (iii) if the Conversion Request is delivered following a
notice of a Business Combination described in Section 7(e) of this Annex I, such
Conversion Request may specify that such Conversion Request is contingent upon
the consummation of the Business Combination, (iv) may make the election
described in Section 7(b)(II) below and (v) subject to Section 7(k) below, shall
direct the Conversion Agent (A) to convert such Securities into a portion of the
Debentures held by the Trust (at the rate of exchange specified in the preceding
paragraph) and (B) to immediately convert such Debentures, on behalf of such
Holder, into Common Stock at the Conversion Price. The Conversion Agent shall
notify the Trust of the Holder’s election to convert Securities into a portion
of the Debentures held by the Trust, and the Institutional Trustee on behalf of
the Trust shall, upon receipt of such notice, deliver to the Conversion Agent
the appropriate principal amount of Debentures for conversion in accordance with
this section. Subject to Section 7(k) below, the Conversion Agent shall
thereupon notify the Sponsor of the Holder’s election to convert such Debentures
into shares of Common Stock. So long as any Securities are outstanding, the
Trust shall not convert any Debentures into shares of Common Stock except
pursuant to a Conversion Request delivered to the Conversion Agent by a holder
of Securities. 

               (I) Except as provided in Section 7(b)(II) or 7(b)(III) below,
a Holder of Securities who converts Securities on or prior to a record date
shall be entitled to receive, on the next Distribution Payment Date, a
distribution equal to the amount of all accrued and unpaid interest on such
converted Securities, accruing through, but excluding, the date of such
conversion. 

               (II)
Except as provided in Section 7(b)(III) below with respect to conversion of
Securities after a Redemption/Distribution Notice has been given, if any
Securities are converted during an Extension Period, the Holder may elect in the
Conversion Request to (x) provided that such election would not cause Sponsor to
be in violation of Rule 4350(i)(2)(D) of the NASDAQ Stock Market Rules, convert
all or any part of the accrued and unpaid interest on the converted Securities
into shares of Common Stock on the Conversion Date in an amount equal to such
accrued and unpaid interest divided by the Conversion Price or (y) receive such
accrued and unpaid interest on the converted Securities up to, but excluding the
Conversion Date, (including Additional Interest thereon, if any, to the extent
permitted by applicable laws, rules or regulations) on the Distribution Payment
Date upon which such Extension Period ends.

I-12





In the event that the Holder does not
elect either (x) or (y) in the Conversion Request, the Holder shall be deemed to
have elected (y). At any time following the Conversion Date and prior to the
payment in full of such accrued and unpaid interest, the Holder may, by delivery
of a separate Conversion Request convert any such accrued and unpaid interest
into shares of Common Stock in an amount equal to such accrued and unpaid
interest divided by the Conversion Price, such conversion will be governed by
the applicable provisions of this Annex I. If a Holder makes the election, or is
deemed to have made the election, described in clause (y), the Holder shall be
entitled to receive from the Sponsor a letter agreement in the form of Exhibit C
attached hereto.

               (III) If Redemption/Distribution Notice is mailed or otherwise
given to Holders, then, if any Holder converts any Securities on any date on or
after the date on which such Redemption/Distribution Notice is mailed or
otherwise given, such converting Holder shall be entitled to receive on the
Conversion Date or as promptly as practicable thereafter (and in any event
within three (3) Business Days of the Conversion Date), all accrued and unpaid
Distributions on such converted Securities (including Additional Interest
thereon, if any, to the extent permitted by applicable laws, rules or
regulations) through, but excluding, the date of such conversion. 

               (IV)
The Sponsor shall make no payment or allowance for distributions on the shares
of Common Stock issued upon such conversion, except to the extent that such
shares of Common Stock are held of record on the record date for any such
distributions. Securities shall be deemed to have been converted and the person
entitled to receive such Common Stock shall be treated as record holder thereof
immediately prior to 5:00 p.m. (Eastern time) on the Conversion Date. The Person
or Persons entitled to receive Common Stock issuable upon conversion of the
Securities shall be treated for all purposes as the record holder or holders of
such Common Stock at such time.

               (V) As promptly as practicable on or after the Conversion Date
and in any event within three (3) Business Days of the Conversion Date, the
Sponsor shall issue and deliver at the office of the Conversion Agent a
certificate or certificates for the number of full shares of Common Stock, or
Debentures if such conversion is pursuant to Section 7(k), issuable upon such
conversion, or in the case of Common Stock, other written evidence thereof if
the Common Stock ownership is accounted for in a book entry system, together
with the cash payment, if any, in lieu of any fraction of any share, to the
Person or Persons entitled to receive the same, unless otherwise directed by the
Holder in the Conversion Request, and the Conversion Agent shall distribute such
certificate(s) or other written evidence and cash to such Person or Persons. If
there is an effective registration statement covering the Common Stock issuable
upon such conversion and Sponsor does not issue and deliver the Common Stock to
the converting holder an unlegended certificate within three (3) trading days,
then the converting Holder may execute the “Buy-in” rights provided in Section
4(ix)(C) of the Registration Rights Agreement. Certificates (with or without
legends) for Common Stock may be transmitted by the Sponsor and/or the
Conversion Agent to the Holder by crediting the account of the Holder’s prime
broker or custodian with Depository Trust Company as directed by such Holder.


          (c)
Holders of Securities shall have registration rights as set forth in a
Registration Rights Agreement by and among the Sponsor, the Trust and the
original Holders.

I-13







     (d) (i) On and
after December 12, 2010, the Sponsor shall have the right, at its option, to
cause the conversion rights of holders of the Debentures to convert the
Debentures into Common Stock to terminate pursuant to this Section 7(d), in
which case the rights of Holders of the Securities to convert the Securities
into Common Stock pursuant to this Section 7 will likewise terminate, if (A) no
Event of Default has occurred and is continuing, (B) the Trust is not then
delinquent with respect to any payment obligation on the Securities, (C) no
Extension Period is then in effect, (D) the Sponsor is not delinquent with
respect to any payment obligation related to or arising from the Debentures or
the Guarantee, (E) the Sponsor has filed and had declared effective a
registration statement with respect to the resale of the Common Stock issuable
upon exchange of the Securities and the prospectus contained therein is
available for the resale of all such Common Stock, or the Common Stock on the
date of the Press Release and through the Conversion Termination Date is
eligible for resale without registration and (F) for at least 20 consecutive
trading days, including the last trading day of such period, the Closing Price
of the Common Stock on each of such 20 trading days shall have exceeded $22.58,
as adjusted pursuant to Section 2.13(d) of the Indenture as if the Closing Price
were the Conversion Price as described therein (“Conversion Termination Price”).


          (ii) To exercise its option to cause the conversion rights of
Holders of the Securities to terminate, the Sponsor must cause the Trust to
issue a press release for publication on the Dow Jones News Service or on a
comparable news service (the "Press Release") prior to the opening of business
on the second trading day after any period in which the conditions in Section
7(d)(i) have been satisfied (which date shall not be prior to December 12,
2010), which Press Release shall state that the Sponsor has elected to exercise
its right to terminate the conversion rights of holders of Debentures and
Holders of Securities, specify the Conversion Termination Date and provide the
current Conversion Price of the Securities and the Closing Price of the Common
Stock as of the close of business on the trading day next preceding the date of
the Press Release. If the Sponsor exercises the option described in this Section
7(d), the "Conversion Termination Date" shall be the Business Day selected by
the Sponsor which shall not be less than 15 nor more than 30 calendar days after
the date on which the Trust issues the Press Release. If the Sponsor does not
exercise the option described in this Section 7(d), and the Securities are
otherwise called for redemption, the Securities will be convertible until 5:00
p.m. (Eastern time) on the Business Day immediately preceding the date of such
redemption. 

          (iii) In
addition to the Press Release, notice of the termination of conversion rights of
Holders of the Securities (a "Notice of Conversion Termination") must be given
by the Trust by first-class mail to each Holder of Securities not more than two
Business Days after the Trust issues the Press Release. Each such mailed Notice
of Conversion Termination shall state: (1) the Conversion Termination Date; (2)
the Conversion Price of the Securities and the Closing Price of the Securities
and the Common Stock, in each case as of the close of business on the trading
day next preceding the date of the Notice of Conversion Termination; (3) that
Securities will be convertible until 5:00 p.m. (Eastern time) on the Conversion
Termination Date and the place or places at which a Notice of Conversion may be
given and Securities (if not in book-entry form) may be surrendered for
conversion into shares of Common Stock; and (4) such other information or
instructions as the Trust deems necessary or advisable to enable a Holder to
exercise its conversion rights hereunder. For purposes of the calculation of the
Conversion Termination Date and the dates on which notices are given pursuant to
this Section 7(d)(iii), a Notice of Conversion Termination shall be deemed to
have been given on the day that such notice is first mailed by first-class mail,
postage prepaid, to each Holder of Securities at the address of such Holder
appearing in the books and records of the Trust (whether or not any such Holder
receives the Notice of Conversion Termination). No defect in the Notice of
Conversion Termination or in the mailing thereof with respect to any Trust
Security shall affect the validity of such notice with respect to any other
Trust Security. As of 5:00 p.m. (Eastern time) on the Conversion Termination
Date, the Securities shall be deemed to be non-convertible securities.


I-14





          (e) If, after receiving timely notice of a Business
Combination pursuant to Section 3.2 of the Declaration where the consideration
to be received by Company shareholders is either (A) all cash or (B) cash and/or
property with a fair market value, as determined in accordance with the
agreements governing such Business Combination, per share of Common Stock equal
to or in excess of the Conversion Termination Price, a Securityholder does not
deliver a Conversion Request at least three (3) Business Days prior to the
consummation of such Business Combination, the conversion rights of such
Securityholder shall also automatically and without notice to such
Securityholder terminate on the third Business Day prior to the consummation of
such Business Combination. 

          (f) Each
Holder of a Capital Security, by acceptance thereof, appoints Wilmington Trust
Company as conversion agent (the “Conversion Agent”) for the purpose of
effecting the conversion of Securities and conversion of Debentures in
accordance with this Section and the Indenture. In effecting the conversion
transactions described in this Section, the Conversion Agent shall be acting as
agent of the Holders of Securities directing it to effect such transactions. The
Conversion Agent is hereby authorized (i) to convert Securities from time to
time into Debentures held by the Trust in connection with the conversion of such
Securities in accordance with this Section and (ii) to convert all or a portion
of the Debentures into Common Stock and thereupon to deliver such shares of
Common Stock in accordance with the provisions of this Section and to deliver to
the Trust a new Debenture for any resulting unconverted principal amount.


          (g) No
fractional shares of Common Stock will be issued as a result of conversion, but
in lieu thereof, such fractional interest will be paid in cash (based on the
Closing Price of Common Stock on the date of the Conversion Request) by the
Sponsor to the Trust, which in turn will make such payment to the Holder or
Holders of Securities so converted. 


          (h) The
Sponsor shall at all times reserve and keep available out of its authorized and
unissued Common Stock, solely for issuance upon the conversion of the
Debentures, free from any preemptive or other similar rights, such number of
such shares of Common Stock as shall from time to time be issuable upon the
conversion of all of the Debentures then outstanding. Notwithstanding the
foregoing, the Sponsor shall be entitled to deliver, upon conversion of
Debentures, shares of Common Stock reacquired and held in the treasury of the
Sponsor (in lieu of the issuance of authorized and unissued shares of Common
Stock), so long as any such treasury shares are free and clear of all liens,
charges, security interests or encumbrances. Any shares of Common Stock issued
upon conversion of the Debentures shall be duly authorized, validly issued,
fully paid and nonassessable. The Trust shall deliver the shares of Common Stock
received upon conversion of the Debentures to the converting Holder free and
clear of all liens, charges, security interests and encumbrances, except for
United States withholding taxes. Each of the Sponsor and the Trust shall prepare
and shall use its best efforts to obtain and keep in force such governmental or
regulatory permits or other authorizations as may be required by law, and shall
comply with all applicable requirements as to registration or qualification of
the Common Stock issuable upon conversion of Debentures (and all requirements to
list such Common Stock on any national securities exchange or quotation system
that are at the time applicable), to enable the Sponsor lawfully to issue Common
Stock to the Trust upon conversion of the Debentures and to enable the Trust
lawfully to deliver Common Stock to each Holder upon such conversion.


I-15






          (i) The Sponsor shall pay any and all taxes that may be
payable in respect of the issuance or delivery of shares of Common Stock on
conversion of Debentures and the delivery of shares of Common Stock by the Trust
to the Holder upon conversion. The Sponsor shall not, however, be required to
pay any tax that may be payable in respect of any transfer involved in the
issuance and delivery of shares of Common Stock in a name other than that in
which the Securities so converted were registered, and no such issue or delivery
shall be made unless and until the Person requesting such issue has paid to the
Trust the amount of any such tax or has established to the satisfaction of the
Trust that such tax has been paid.

          (j) Nothing
in the preceding paragraph (i) shall limit the requirement of the Trust to
withhold taxes pursuant to the terms of the Securities or as set forth in this
Declaration or otherwise require the Institutional Trustee or the Trust to pay
any amounts on account of such withholding. 

          (k) At any time following the conversion of all Common
Securities or all Capital Securities, the holders of the remaining class of
Trust Securities may deliver a Conversion Request which does not specify that
the Debentures deliverable upon such conversion shall be further converted into
Common Stock pursuant to clause (v)(B) of Section 7(b) above; provided that such
Debentures shall remain convertible in accordance with their terms. 

    
8. Amendments to Declaration and
Indenture. 

          (a) In addition to any requirements under Section 11.1 of the
Declaration, if any proposed amendment to the Declaration provides for, or the
Trustees, Sponsor or Administrators otherwise propose to effect, (i) any action
that would adversely affect the powers, preferences or special rights of the
Securities, whether by way of amendment to the Declaration or otherwise, or (ii)
the Liquidation of the Trust, other than as described in Section 7.1 of the
Declaration, then the Holders of outstanding Securities, voting together as a
single class, will be entitled to vote on such amendment or proposal and such
amendment or proposal shall not be effective except with the approval of the
Holders of at least a Majority in liquidation amount of the Securities, affected
thereby; provided, however, if any amendment or proposal referred to in clause
(i) above would adversely affect only the Capital Securities or only the Common
Securities, then only the affected class will be entitled to vote on such
amendment or proposal and such amendment or proposal shall not be effective
except with the approval of a Majority in liquidation amount of such class of
Securities. 

I-16





          (b) In the event the consent of the Institutional Trustee as
the holder of the Debentures is required under the Indenture with respect to any
amendment, modification or termination of the Indenture or the Debentures, the
Institutional Trustee shall request the written direction of the Holders of the
Securities with respect to such amendment, modification or termination and shall
vote with respect to such amendment, modification, or termination as directed by
a Majority in liquidation amount of the Securities voting together as a single
class; provided, however, that where a consent under the Indenture would require a Super
Majority, the Institutional Trustee may only give such consent at the direction
of the Holders of at least the proportion in liquidation amount of the
Securities which the relevant Super Majority represents of the aggregate
principal amount of the Debentures outstanding. 

          (c) Notwithstanding the foregoing, no amendment or
modification may be made to the Declaration if such amendment or modification
would (i) cause the Trust to be classified for purposes of United States federal
income taxation as other than a grantor trust, (ii) reduce or otherwise
adversely affect the powers of the Institutional Trustee or (iii) cause the
Trust to be deemed an Investment Company which is required to be registered
under the Investment Company Act. 

          (d) Notwithstanding any provision of the Declaration, the
right of any Holder of the Capital Securities to receive payment of
distributions and other payments upon redemption or otherwise, on or after their
respective due dates, or to institute a suit for the enforcement of any such
payment on or after such respective dates, shall not be impaired or affected
without the consent of such Holder. For the protection and enforcement of the
foregoing provision, each and every Holder of the Capital Securities shall be
entitled to such relief as can be given either at law or equity. 

     9.
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 of the Securities
according to the aggregate liquidation amount of the Securities held by the
relevant Holder in relation to the aggregate liquidation amount of all
Securities then outstanding unless, in relation to a payment, an Event of
Default 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 the 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 the Common
Securities Pro Rata according to the aggregate liquidation amount of the Common
Securities held by the relevant Holder relative to the aggregate liquidation
amount of all Common Securities outstanding. 

I-17





     10.
Ranking.
The Capital Securities rank pari
passu with and payment thereon shall be made
Pro Rata with the Common Securities except that, where an Event of Default has
occurred and is continuing, the rights of Holders of the Common Securities to
receive payment of Distributions and payments upon liquidation, redemption and
otherwise are subordinated to the rights of the Holders of the Capital
Securities with the result that no payment of any Distribution on, or Redemption
Price of, any Common Security, and no other payment on account of redemption,
liquidation or other acquisition of Common Securities, shall be made unless
payment in full in cash of all accrued and unpaid Distributions on all
outstanding Capital Securities for all distribution periods terminating on or
prior thereto, or in the case of payment of the Redemption Price the full amount
of such Redemption Price on all outstanding Capital Securities then called for
redemption, shall have been made or provided for, and all funds immediately
available to the Institutional Trustee shall first be applied to the payment in
full in cash of all Distributions on, or the Redemption Price of, the Capital
Securities then due and payable. 

     11.
Acceptance of Guarantee and
Indenture. Each Holder of the Capital
Securities and the Common Securities, by the acceptance of such Securities,
agrees to the provisions of the Guarantee, including the subordination
provisions therein and to the provisions of the Indenture. 

     12.
No Preemptive Rights. The Holders of the Securities shall have no preemptive or
similar rights to subscribe for any additional securities other than those
included in the Subscription Agreement. 

     13.
Miscellaneous. These terms constitute a part of the Declaration. The Sponsor will
provide a copy of the Declaration, the Guarantee, and the Indenture to a Holder
without charge on written request to the Sponsor at its principal place of
business. 

I-18





EXHIBIT A-1

FORM OF CONVERTIBLE CAPITAL SECURITY
CERTIFICATE 

[FORM OF FACE OF
SECURITY] 

     THIS
SECURITY HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED
(THE “SECURITIES ACT”), ANY STATE SECURITIES LAWS OR ANY OTHER APPLICABLE
SECURITIES LAW. NEITHER THIS 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, THE REGISTRATION REQUIREMENTS OF THE SECURITIES
ACT AND ANY APPLICABLE STATE SECURITIES LAWS. THE HOLDER OF THIS SECURITY BY ITS
ACCEPTANCE HEREOF AGREES TO OFFER, SELL OR OTHERWISE TRANSFER THIS SECURITY ONLY
(A) TO THE SPONSOR OR THE TRUST, (B) PURSUANT TO A REGISTRATION STATEMENT THAT
HAS BEEN DECLARED EFFECTIVE UNDER THE SECURITIES ACT, (C) TO A PERSON WHOM THE
SELLER REASONABLY BELIEVES IS A QUALIFIED INSTITUTIONAL BUYER IN A TRANSACTION
MEETING THE REQUIREMENTS OF RULE 144A SO LONG AS THIS SECURITY IS ELIGIBLE FOR
RESALE PURSUANT TO RULE 144A IN ACCORDANCE WITH RULE 144A, (D) TO A NON-U.S.
PERSON IN AN OFFSHORE TRANSACTION IN ACCORDANCE WITH RULE 903 OR RULE 904 (AS
APPLICABLE) OF REGULATION S UNDER THE SECURITIES ACT, (E) TO AN INSTITUTIONAL
“ACCREDITED INVESTOR” WITHIN THE MEANING OF SUBPARAGRAPH (A) 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 OF THE SECURITIES ACT,
SUBJECT TO THE SPONSOR’S AND THE TRUST’S RIGHT PRIOR TO ANY SUCH OFFER, SALE OR
TRANSFER TO REQUIRE THE DELIVERY OF AN OPINION OF COUNSEL, CERTIFICATION AND/OR
OTHER INFORMATION SATISFACTORY TO EACH OF THEM IN ACCORDANCE WITH THE
DECLARATION OF TRUST, A COPY OF WHICH MAY BE OBTAINED FROM THE SPONSOR OR THE
TRUST. HEDGING TRANSACTIONS INVOLVING THIS SECURITY MAY NOT BE CONDUCTED UNLESS
IN COMPLIANCE WITH THE SECURITIES ACT. 


     THE HOLDER OF
THIS SECURITY BY ITS ACCEPTANCE HEREOF ALSO AGREES, REPRESENTS AND WARRANTS THAT
IT IS NOT AN EMPLOYEE BENEFIT, INDIVIDUAL RETIREMENT ACCOUNT OR OTHER PLAN OR
ARRANGEMENT SUBJECT TO TITLE I OF THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF
1974, AS AMENDED (“ERISA”), OR SECTION 4975 OF THE INTERNAL REVENUE CODE OF
1986, AS AMENDED (THE “CODE”) (EACH A “PLAN”), OR AN ENTITY WHOSE UNDERLYING
ASSETS INCLUDE “PLAN ASSETS” BY REASON OF ANY PLAN’S INVESTMENT IN THE ENTITY,
AND NO PERSON INVESTING “PLAN ASSETS” OF ANY PLAN MAY ACQUIRE OR HOLD THE
SECURITIES OR ANY INTEREST THEREIN, UNLESS SUCH PURCHASER OR HOLDER IS ELIGIBLE
FOR EXEMPTIVE RELIEF AVAILABLE UNDER U.S. DEPARTMENT OF LABOR PROHIBITED
TRANSACTION CLASS EXEMPTION 96-23, 95-60, 91-38, 90-1 OR 84-14 OR ANOTHER
APPLICABLE EXEMPTION OR ITS PURCHASE AND HOLDING OF THIS SECURITY IS NOT
PROHIBITED BY SECTION 406 OF ERISA OR SECTION 4975 OF THE CODE WITH RESPECT TO
SUCH PURCHASE OR HOLDING. ANY PURCHASER OR HOLDER OF THE SECURITIES OR ANY
INTEREST THEREIN WILL BE DEEMED TO HAVE REPRESENTED BY ITS PURCHASE AND HOLDING
THEREOF THAT EITHER (i) IT IS NOT AN EMPLOYEE BENEFIT PLAN WITHIN THE MEANING OF
SECTION 3(3) OF ERISA, OR A PLAN TO WHICH SECTION 4975 OF THE CODE IS
APPLICABLE, A TRUSTEE OR OTHER PERSON ACTING ON BEHALF OF AN EMPLOYEE BENEFIT
PLAN OR PLAN, OR ANY OTHER PERSON OR ENTITY USING THE ASSETS OF ANY EMPLOYEE
BENEFIT PLAN OR PLAN TO FINANCE SUCH PURCHASE, OR (ii) SUCH PURCHASE WILL NOT
RESULT IN A PROHIBITED TRANSACTION UNDER SECTION 406 OF ERISA OR SECTION 4975 OF
THE CODE FOR WHICH THERE IS NO APPLICABLE STATUTORY OR ADMINISTRATIVE EXEMPTION.



A-I-1






    
THIS SECURITY WILL BE ISSUED AND MAY BE TRANSFERRED ONLY IN BLOCKS HAVING
A LIQUIDATION AMOUNT OF NOT LESS THAN $1,000.00 AND MULTIPLES OF $1,000.00 IN
EXCESS THEREOF. ANY ATTEMPTED TRANSFER OF SECURITIES IN A BLOCK HAVING A
LIQUIDATION AMOUNT OF LESS THAN $1,000.00 SHALL BE DEEMED TO BE VOID AND OF NO
LEGAL EFFECT WHATSOEVER. 

     THE
HOLDER OF THIS SECURITY AGREES THAT IT WILL COMPLY WITH THE FOREGOING
RESTRICTIONS. 

     IN
CONNECTION WITH ANY TRANSFER, THE HOLDER WILL DELIVER TO THE REGISTRAR AND
TRANSFER AGENT SUCH CERTIFICATES AND OTHER INFORMATION AS MAY BE REQUIRED BY THE
DECLARATION TO CONFIRM THAT THE TRANSFER COMPLIES WITH THE FOREGOING
RESTRICTIONS. 


	     	Certificate
      Number P-1  	 	 Capital
      Securities  
		[CUSIP NO.
      [        ] **To be inserted at the request of the Holder]  		  




December 12, 2008 

Certificate Evidencing Convertible
Capital Securities

of

 EFSC Capital Trust VIII 

(liquidation amount $1,000.00 per
Capital Security) 

A-I-2





     EFSC
Capital Trust VIII, a statutory trust created under the laws of the State of
Delaware (the “Trust”), hereby certifies that _________ is the registered owner
of capital securities of the Trust representing undivided beneficial interests
in the assets of the Trust, (liquidation amount $1,000.00 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 Capital Securities represented
hereby are issued pursuant to, and the designation, rights, privileges,
restrictions, preferences and other terms and provisions of the Capital
Securities shall in all respects be subject to, the provisions of the Amended
and Restated Declaration of Trust No. 2. of the Trust dated as of December 12,
2008, among Frank H. Sanfilippo, Deborah N. Barstow and Betty L. Lewis, as
Administrators, Wilmington Trust Company, as Delaware Trustee, Wilmington Trust
Company, as Institutional Trustee, Enterprise Financial Services Corp, as
Sponsor, and the holders from time to time of undivided beneficial interests in
the assets of the Trust, including the designation of the terms of the Capital
Securities as set forth in Annex I to such amended and restated declaration as
the same may be amended from time to time (the “Declaration”). Capitalized terms
used herein but not defined shall have the meaning given them in the
Declaration. The Holder is entitled to the benefits of the Guarantee to the
extent provided therein. The Sponsor will provide a copy of the Declaration, the
Guarantee, and the Indenture to the Holder without charge upon written request
to the Sponsor at its principal place of business. 

     Upon
receipt of this Security, the Holder is bound by the Declaration and is entitled
to the benefits thereunder. 

     By
acceptance of this Security, the Holder agrees to treat, for United States
federal income tax purposes, the Debentures as indebtedness and the Capital
Securities as evidence of beneficial ownership in the Debentures. 

     This
Capital Security is governed by, and construed in accordance with, the laws of
the State of Delaware, without regard to principles of conflict of laws.


Signatures appear on following page


A-I-3





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

			EFSC CAPITAL
      TRUST VIII  
			  
			  
			  
		By: 	 
		 	         
                Name:  
			          Title: Administrator 




CERTIFICATE OF
AUTHENTICATION 

This is one of the Capital Securities
referred to in the within-mentioned Declaration. 

			WILMINGTON TRUST
      COMPANY,  
			as the
      Institutional Trustee  
			 
			  
		 	  
		By: 	 
			               Authorized Officer  



A-I-4





[FORM OF REVERSE OF CAPITAL SECURITY]


     Distributions payable on each
Capital Security will be payable at an annual rate equal to 9.00% from the date
of original issuance on each Distribution Payment Date, applied to the stated
liquidation amount of $1,000.00 per Capital Security, such rate being the rate
of interest payable on the Debentures to be held by the Institutional Trustee.
Distributions in arrears will bear interest thereon compounded quarterly at the
Distribution Rate (to the extent permitted by applicable law). The term
“Distributions” as used herein includes cash distributions and any such
compounded distributions unless otherwise noted. A Distribution is payable only
to the extent that payments are made in respect of the Debentures held by the
Institutional Trustee and to the extent the Institutional Trustee has funds
available therefor. The amount of the Distribution payable for any Distribution
Period will be calculated by applying the Distribution Rate to the stated
liquidation amount outstanding at the commencement of the Distribution Period
and shall be computed on the basis of a 360-day year consisting of twelve 30-day
months. 

     The
Distribution Rate for any Distribution Period will at no time be higher than the
maximum rate then permitted by New York law as the same may be modified by
United States law. 

     All
percentages resulting from any calculations on the Capital Securities will be
rounded, if necessary, to the nearest one hundred-thousandth of a percentage
point, with five one-millionths of a percentage point rounded upward (e.g.,
9.876545% (or .09876545) being rounded to 9.87655% (or .0987655), and all dollar
amounts used in or resulting from such calculation will be rounded to the
nearest cent (with one-half cent being rounded upward)). 

     Except as
otherwise described below, Distributions on the Capital Securities will be
cumulative, will accrue from the date of original issuance and will be payable
quarterly in arrears on March 15, June 15, September 15 and December 15 of each
year or if any such day is not a Business Day, then the next succeeding Business
Day (each such day, a “Distribution Payment Date”) (it being understood that
interest accrues for any such non-Business Day but such interest will be paid on
the next Distribution Payment Date), commencing on the Distribution Payment Date
in March 2009. The Debenture Issuer has the right under the Indenture to defer
payments of interest on the Debentures, so long as no Acceleration Event of
Default has occurred and is continuing, by extending the interest payment period
on the Debentures for up to 20 consecutive quarterly periods (each an “Extension
Period”) at any time and from time to time on the Debentures, subject to the
conditions described below, during which Extension Period no interest shall be
due and payable. During any Extension Period, interest will continue to accrue
on the Debentures, and interest on such accrued interest will accrue at an
annual rate equal to the Distribution Rate in effect for each such Extension
Period, compounded quarterly from the date such interest would have been payable
were it not for the Extension Period, to the extent permitted by law (such
interest referred to herein as “Additional Interest”). No Extension Period may
end on a date other than a Distribution Payment Date. At the end of any such
Extension Period, the Debenture Issuer shall pay all interest then accrued and
unpaid on the Debentures (together with Additional Interest thereon); provided,
however, that no Extension Period may extend beyond the Maturity Date. 

A-I-5





Prior to
the termination of any Extension Period, the Debenture Issuer may further extend
such period, provided that such period together with all such previous and
further consecutive extensions thereof shall not exceed 20 consecutive quarterly
periods, or extend beyond the Maturity Date. Upon the termination of any
Extension Period and upon the payment of all accrued and unpaid interest and
Additional Interest, the Debenture Issuer may commence a new Extension Period,
subject to the foregoing requirements. No interest or Additional Interest shall
be due and payable during an Extension Period, except at the end thereof, but
each installment of interest that would otherwise have been due and payable
during such Extension Period shall bear Additional Interest. During any
Extension Period, Distributions on the Capital Securities shall be deferred for
a period equal to the Extension Period. If Distributions are deferred, the
Distributions due shall be paid on the date that the related Extension Period
terminates, to Holders of the Securities as they appear on the books and records
of the Trust on the record date immediately preceding such date. Distributions
on the Securities must be paid on the dates payable (after giving effect to any
Extension Period) to the extent that the Trust has funds available for the
payment of such distributions in the Property Account of the Trust. The Trust’s
funds available for Distribution to the Holders of the Securities will be
limited to payments received from the Debenture Issuer. The payment of
Distributions out of moneys held by the Trust is guaranteed by the Guarantor
pursuant to the Guarantee. 

     The
Capital Securities shall be redeemable and convertible into Common Stock of the
Sponsor as provided in the Declaration. 

A-I-6





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. 

	      	Date:  	 	
	 	Signature:  	 	 
			 	
		
           (Sign exactly as your name
      appears on the other side of this Capital Security Certificate)
    

		 	 	
		
      Signature Guarantee:1
      


____________________
1 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 Security 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 Security registrar in addition to, or in
substitution for, STAMP, all in accordance with the Securities Exchange Act of
1934, as amended. 

A-I-7





EXHIBIT A-2 

FORM OF COMMON SECURITY CERTIFICATE


     THIS
COMMON SECURITY HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED, AND MAY NOT BE OFFERED, SOLD, PLEDGED OR OTHERWISE TRANSFERRED EXCEPT
PURSUANT TO AN EXEMPTION FROM REGISTRATION. 

     THIS
CERTIFICATE IS NOT TRANSFERABLE EXCEPT IN COMPLIANCE WITH SECTION 8.1 OF THE
DECLARATION. 

	Certificate Number C-1	
      ____ Common Securities
    



December 12, 2008 

Certificate Evidencing Common
Securities

of

EFSC Capital Trust VIII 

     EFSC
Capital Trust VIII, a statutory trust created under the laws of the State of
Delaware (the “Trust”), hereby certifies that Enterprise Financial Services Corp
(the “Holder”) is the registered owner of common securities of the Trust
representing undivided beneficial interests in the assets of the Trust (the
“Common Securities”). The Common Securities represented hereby are issued
pursuant to, and the designation, rights, privileges, restrictions, preferences
and other terms and provisions of the Common Securities shall in all respects be
subject to, the provisions of the Amended and Restated Declaration of Trust No.
2. of the Trust dated as of December 12, 2008, among Frank H. Sanfilippo,
Deborah N. Barstow and Betty L. Lewis, as Administrators, Wilmington Trust
Company, as Delaware Trustee, Wilmington Trust Company, as Institutional
Trustee, Enterprise Financial Services Corp, as Sponsor, and the holders from
time to time of undivided beneficial interest in the assets of the Trust
including the designation of the terms of the Common Securities as set forth in
Annex I to such amended and restated declaration, as the same may be amended
from time to time (the “Declaration”). Capitalized terms used herein but not
defined shall have the meaning given them in the Declaration. The Holder is
entitled to the benefits of the Guarantee to the extent provided therein. The
Sponsor will provide a copy of the Declaration, the Guarantee and the Indenture
to the Holder without charge upon written request to the Sponsor at its
principal place of business. 

     As set
forth in the Declaration, when an Event of Default has occurred and is
continuing, the rights of Holders of Common Securities to payment in respect of
Distributions and payments upon Liquidation, redemption or otherwise are
subordinated to the rights of payment of Holders of the Capital Securities.


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     Upon
receipt of this Certificate, the Holder is bound by the Declaration and is
entitled to the benefits thereunder. 

     By
acceptance of this Certificate, the Holder agrees to treat, for United States
federal income tax purposes, the Debentures as indebtedness and the Common
Securities as evidence of undivided beneficial ownership in the Debentures.


     This
Common Security is governed by, and construed in accordance with, the laws of
the State of Delaware, without regard to principles of conflict of laws.


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

		
      EFSC CAPITAL TRUST
      VIII 

		 
		
      By:
	 
    
		 	 	Name: 
Title: Administrator
  


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[FORM OF REVERSE OF COMMON SECURITY]


     Distributions payable on each Common Security will be payable at an
annual rate equal to 9.00% from the date of original issuance on each
Distribution Payment Date, applied to the stated liquidation amount of $1,000.00
per Common Security, such rate being the rate of interest payable on the
Debentures to be held by the Institutional Trustee. Distributions in arrears
will bear interest thereon compounded quarterly at the Distribution Rate (to the
extent permitted by applicable law). The term “Distributions” as used herein
includes cash distributions and any such compounded distributions unless
otherwise noted. A Distribution is payable only to the extent that payments are
made in respect of the Debentures held by the Institutional Trustee and to the
extent the Institutional Trustee has funds available therefor. The amount of the
Distribution payable for any Distribution Period will be calculated by applying
the Distribution Rate to the stated liquidation amount outstanding at the
commencement of the Distribution Period and shall be computed on the basis of a
360-day year consisting of twelve 30-day months. 

     The
Distribution Rate for any Distribution Period will at no time be higher than the
maximum rate then permitted by New York law as the same may be modified by
United States law. 

     All
percentages resulting from any calculations on the Common Securities will be
rounded, if necessary, to the nearest one hundred-thousandth of a percentage
point, with five one-millionths of a percentage point rounded upward (e.g.,
9.876545% (or .09876545) being rounded to 9.87655% (or .0987655), and all dollar
amounts used in or resulting from such calculation will be rounded to the
nearest cent (with one-half cent being rounded upward)). 

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     Except as
otherwise described below, Distributions on the Common Securities will be
cumulative, will accrue from the date of original issuance and will be payable
quarterly in arrears on March 15, June 15, September 15 and December 15 of each
year or if any such day is not a Business Day, then the next succeeding Business
Day (each such day, a “Distribution Payment Date”) (it being understood that no
additional interest will accrue in respect of such delay), commencing on the
Distribution Payment Date in March 2009. The Debenture Issuer has the right
under the Indenture to defer payments of interest on the Debentures, so long as
no Acceleration Event of Default has occurred and is continuing, by extending
the interest payment period on the Debentures for up to 20 consecutive quarterly
periods (each an “Extension Period”) at any time and from time to time on the
Debentures, subject to the conditions described below, during which Extension
Period no interest shall be due and payable. During any Extension Period,
interest will continue to accrue on the Debentures, and interest on such accrued
interest will accrue at an annual rate equal to the Distribution Rate in effect
for each such Extension Period, compounded quarterly from the date such interest
would have been payable were it not for the Extension Period, to the extent
permitted by law (such interest referred to herein as “Additional Interest”). No
Extension Period may end on a date other than a Distribution Payment Date. At
the end of any such Extension Period, the Debenture Issuer shall pay all
interest then accrued and unpaid on the Debentures (together with Additional
Interest thereon); provided, however, that no Extension Period may extend beyond
the Maturity Date. Prior to the termination of any Extension Period, the
Debenture Issuer may further extend such period, provided that such period
together with all such previous and further consecutive extensions
thereof shall not exceed 20 consecutive quarterly periods, or extend
beyond the Maturity Date. Upon the termination of any Extension Period and upon
the payment of all accrued and unpaid interest and Additional Interest, the
Debenture Issuer may commence a new Extension Period, subject to the foregoing
requirements. No interest or Additional Interest shall be due and payable during
an Extension Period, except at the end thereof, but each installment of interest
that would otherwise have been due and payable during such Extension Period
shall bear Additional Interest. During any Extension Period, Distributions on
the Common Securities shall be deferred for a period equal to the Extension
Period. If Distributions are deferred, the Distributions due shall be paid on
the date that the related Extension Period terminates, to Holders of the
Securities as they appear on the books and records of the Trust on the record
date immediately preceding such date. Distributions on the Securities must be
paid on the dates payable (after giving effect to any Extension Period) to the
extent that the Trust has funds available for the payment of such distributions
in the Property Account of the Trust. The Trust’s funds available for
Distribution to the Holders of the Securities will be limited to payments
received from the Debenture Issuer. 

     The Common Securities shall be
redeemable as provided in the Declaration. 

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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.  		
		 	 		
		Date:  	  		
		Signature:  	  		
	  		
		(Sign
      exactly as your name appears on the other side of this Common Security
      Certificate)  
		    	   		
	 	Signature:  	  		
	  		
		(Sign
      exactly as your name appears on the other side of this Common Security
      Certificate)  
		  	 		

  
Signature Guarantee2 
____________________

2 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 Security 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 Security registrar in addition to, or in substitution for, STAMP, all in
accordance with the Securities Exchange Act of 1934, as amended.

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EXHIBIT B 

SUBSCRIPTION AGREEMENT


 

 

 

 

 

C-1





EXHIBIT C 

FORM OF LETTER AGREEMENT 

	 
        	
	 	
	 	
	 
	          Re:     Amended and
      Restated Declaration of Trust No. 2, dated December 12, 2008, as amended
      and restated (the “Declaration”) of EFSC Capital Trust VIII (the “Trust”),
      by and among Wilmington Trust Company, as Delaware Trustee and
      Institutional Trustee (“WTC”) and Enterprise Financial Services Corp
      (“EFSC”) as Sponsor
	 		 
	          EFSC,
      as Sponsor under the Declaration hereby acknowledges and agrees that
      _______________(“Converting Holder”) has, in connection with the
      conversion of ________ Capital Securities during an Extension Period
      pursuant to Section 7(b)(ii)(v) of Annex-I to the Declaration, elected (or
      been deemed to have elected) to receive accrued and unpaid interest
      (“Interest”) on such converted Capital Securities up to, but excluding the
      Conversion Date, (including Additional Interest thereon, if any, to the
      extent permitted by applicable laws, rules or regulations) on the
      Distribution Payment Date upon which such Extension Period ends, pursuant
      to the terms and subject to the conditions specified in the Declaration.
      EFSC acknowledges and agrees that (i) as of the date of this letter the
      amount of such Interest is $ ____________ (the “Interest”), (ii) that such
      Interest is subject to Additional Interest and (iii) that such Interest
      and any Additional Interest shall be payable out of the funds and assets
      of the Trust, in each case pursuant to the terms and subject to the
      conditions of the Declaration. Capitalized terms not defined in this
      letter shall have the meaning given them in the Declaration. A copy of the
      Declaration, as amended, is attached hereto as Annex
  A.



		Sincerely,  
		 
		Enterprise
      Financial Services Corp  


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